India legal 30 march 2020

NDIA EGALL STORIES THAT COUNT
I
March30, 2020
Judgesandlawyersincourtsarestrugglingtodispensejusticeevenasthefearoftransmissionof
thevirustakeshold.IndiaLegal’sspecialpackagelooksat measuresbeingtakenbytheSupreme
CourtandHighCourtsacrossthecountryandhowitaffectsthejusticesystem
CoronavirusPlagues
TheCourtSystem
Special Supplement:
The Idea of Citizenship
Analysing SC’s Annual Report:
Prof Upendra Baxi

4 March 30, 2020
E are living in extraordinary ti-
mes, facing existential questions
of life and death and absorbing
new words like “social distanc-
ing’’ and “lockdown’’ into our
daily existence. The overall atmosphere is one of
fear, fear of the unknown, fear of discrimination.
Even as we as individuals and a society struggle
to understand and react to the dangers of exclu-
sion and isolation provoked by Covid-19, there is
a question that has been haunting many of our
countrymen and women for some time now, and
it concerns the issue of citizenship.
Our cover story in this issue examines how
the Judiciary is coping with the outbreak of
Covid-19 and imposing restrictions which will
cripple the dispensation of justice, but we also
have an equally compelling analysis to do with
the concept of citizenship and the threat of for-
ced isolation, exclusion and even internment or
expulsion which the Citizenship (Amendment)
Act (CAA) entails. To tackle such a complex and
contentious issue, we felt it deserved to be in the
form of a Special Supplement, the first in a se-
ries of planned specials on the burning issues of
the day.
In today’s India, the spread of Covid-19 has
dominated the mind space of individuals, com-
munities, politicians, civil society, op-ed writers
and television anchors. That has led to a shifting
of focus away from one of the most controversial
and discriminatory legislations any government
has passed. The issue of citizenship has raised
fears and apprehensions, much like Covid-19,
enhanced further by the National Register of
Citizens (NRC).
At India Legal, our focus has always been on
issues of contemporary legal relevance. The
debut of the Special Supplement allows us to
pick subjects that deserve a more rigorous and
in-depth analysis, written and researched by an
acknowledged expert on the subject. The author
of our special supplement on the newly con-
tentious issue of citizenship is Dr. Abhishek
Atrey, a legal expert and Advocate on Record in
the Supreme Court of India. In a detailed and
extensively researched article, he traces the con-
cept of citizenship in India to ancient times, ref-
erencing the Vedas and the Upanishads, as well
as its origins and privileges in ancient Greece,
the Roman Empire, Europe and England. His
analysis is based on the constitutional and legal
definition of citizenship under the Indian Cons-
titution, what are the legal privileges and rights
afforded to citizens, the various types of citizen-
ship and who qualifies and who does not.
In essence, Atrey’s essay is an attempt to
clear up misconceptions and controversies sur-
rounding the CAA and the NRC, and explain
frequently asked and all-important questions
about the idea of citizenship. The coronavirus is
the more immediate threat and it may have
pushed other issues like the CAA into the back-
ground, but it still lurks there, like a virus wait-
ing to strike. Both issues represent defining
moments in the country’s history.
DEFINING MOMENTS
W
Letter from the Editor
ThedebutoftheSpecialSupplement
allowsustopicksubjectsthat
deserveamorerigorousandin-depth
analysis,writtenbyanacknowledged
expert.Inthisissue,wetracethe
conceptofcitizenshipinIndia.

6 March 30, 2020
ContentsVOLUME XIII ISSUE20
MARCH30,2020
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Judges and lawyers in courts
are struggling to dispense
justice even as the fear of
transmission of COVID-19
takes hold. So benches are
being reduced, crowds
curtailed and only urgent
matters listed
Coronavirus
Plagues the
Court System
LEAD
14

| INDIA LEGAL | March 3O, 2020 7
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design & Illustration:
ANTHONY LAWRENCE
REGULARS
Ringside............................8
Courts.............................10
Law Campus News........12
International Briefs ........32
Media Watch ..................50
A Brand Called
Happiness 48
MYSPACE
The Supreme Court Annual Report 2018-19 is replete with crucial information about the
judicial system, its achievements and innovations. However, we must study both what it
chooses to say and what it does not..., says PProf Upendra Baxi
28
Towards Democratic
Judicial Accountability
18
COVID-19 has led to consequences which policymakers should
look at, such as inadequacies in India’s health infrastructure,
deficiencies in distance education and distress among SMEs
Lessons from its
Freakonomics 22
The Idea
of Citizenship
The Citizenship (Amendment) Act,
2019 has created much uncertainty
and fear. The supplement traces its
history in India, examines its legal
and constitutional position, and
clears up misconceptions
34
The impact of the coronavirus, financially and psy-
chologically, is going to last a long time and change
America forever
US Lockdown 26
Corona And Punishment
Tough laws exist in India to deal with violation of quarantine
and isolation norms but it does not appear as if anyone has
been punished for non-compliance
The move to start a happiness plan is in
line with former CJI Ranjan Gogoi’s state-
ment that such classes should be intro-
duced in judicial academies. Has the cor-
poratisation of this concept begun?
SPECIAL
SUPPLEMENT
OPINION

8 March 30, 2020
Anthony Lawrence
RINGSIDE
Safety First

10 March 30, 2020
Courts
The Supreme Court held
that serving women
Short Service Commission
officers were entitled to be
considered for grant of per-
manent commission in the
Indian Navy.
“The battle for gender
equality is about confronting
the battles of the mind,” a
bench comprising Justices
DY Chandrachud and Ajay
Rastogi said while rejecting
arguments that the current
design of mostly Russian-
origin ships in the Navy
were not sufficient to
accommodate women, call-
ing the explanations “devi-
ces adopted to justify
an action”.
The verdict comes a
month after the top court
had directed the centre to
ensure that women were
given permanent commis-
sion in the Indian Army,
including command post-
ings. If granted permanent
commission, women naval
officers can serve till the
age of retirement and will
be entitled to pension.
Reading out pertinent
portions of the judgments,
Justice Chandrachud said,
“A level playing field en-
sures that women have the
opportunity to overcome
their histories of discrimina-
tion with the surest of res-
ponses based on their com-
petence, ability and per-
formance. Women officers
have worked shoulder to
shoulder with their men
counterparts in every walk
of service.”
First Army, now Navy:
permanent commission
for woman
The Supreme Court stated that no self-
assessment or re-assessment of Ad-
justed Gross Revenue (AGR) dues can
be done by telecom companies even as
it turned down the central government’s
plea that telcos be allowed to spread
the payment of their AGR dues over
20 years.
“The court order is clear, no further
objections will be allowed against pay-
able dues,” a three-judge bench consist-
ing of Justices Arun Mishra, SA Nazeer
and MR Shah said, adding that if the tele-
com firms violate the rules, they will be
held for contempt of court. The top court
said this while questioning the Solicitor
General of India on telcos’ self-assess-
ments without the permission of the
Court, calling it contempt.
“Serious fraud is being committed by
telecom companies by asserting to do
self-assessment of AGR dues,” said the
bench while hearing the telecom compa-
nies’ AGR case. The Supreme Court said
that the judgment on AGR dues is full and
final and it should be followed in letter
and spirit. During the hearing, Justice
Mishra said the companies have earned
a lot of money and will have to pay from
2002. “Telcos are usurpers of public
money, you don’t even want to pay a
fraction of the revenue earned. Even the
media is in grossest contempt of court,”
he said.
The Supreme Court asked
the centre and the Jam-
mu and Kashmir adminis-
tration about plans to re-
lease former Chief Minister
Omar Abdullah, who has
been under detention since
August when the abrogation
of Article 370 was ann-
ounced in the state.
A bench of Justices Arun
Mishra and MR Shah told
the counsel appearing for
the centre that Abdullah’s
sister, Sara Abdullah Pilot’s
plea against his detention
will be heard on merit if he
is not released soon.
“If you are releasing him,
then release him soon or we
will hear the matter on mer-
its,” the bench said.
Sara had filed a plea in
the apex court challenging
the detention of her brother
under the Public Safety Act.
Sara contended that ap-
art from the fact that her
brother had disagreements
with the policies of the cen-
tre, it was a lawful right of a
citizen in a democracy
(especially for a member of
the opposition) to demon-
strate and make his point of
view publicly known.
Any plans to release Omar? SC asks centre
Pay up: SC tells telecom firms on AGR

| INDIA LEGAL | March 30, 2020 11
Seven years, three months and three
days after the gruesome rape-cum-
murder, justice was finally delivered when
at 5.30 am on March 20, 2020, the four
death row convicts in the Nirbhaya case
were hanged inside Delhi’s Tihar jail. The
end came after months of delaying tactics
that saw lawyers for the four resorting to
ingenious methods to stall their hanging
which had been confirmed from the lower
courts to the highest court in the land and
the rejection of their mercy petitions by
the President of India.
Nirbhaya’s mother, Asha Devi, who
fought battles on several fronts to get jus-
tice for her daughter, said all women
would definitely feel safer now. She said
though justice was delayed, it was not
denied. "We will request the Supreme
Court to issue guidelines so that no one
can adopt delaying tactics in such cases
in future," she said.
Prime Minister Narendra Modi said
justice had prevailed after all four convicts
were hanged. “Justice has prevailed. It is
of utmost importance to ensure the digni-
ty and safety of women. Our Nari Shakti
has excelled in every field,” he tweeted.
—Compiled by India Legal team
ADelhi court sent suspended AAP
councillor Tahir Hussain to four days
of police custody for the murder of IB
staffer Ankit Sharma during the anti-CAA
riots that rocked Northeast Delhi. It noted
that his custody was required to unearth
the conspiracy behind the riots.
Hussain, who had on three earlier occ-
asions been produced before the judge at
his residence in a riot-related case, was
produced before Chief Metropolitan
Magistrate Pawan Singh Rajawat for the
first time. He was questioned inside the
courtroom for an hour, following which an
application seeking his custody for five
days was moved.
Hussain is one of the prime accused
in the Ankit Sharma murder case.
The police told the Court, “We need to
confront him (Hussain) with Salman
(another accused). Everything was done
on his command.” It said that the custody
was crucial to “unearth the conspiracy
behind the riots which led to the murder
of Ankit Sharma and identify other mem-
bers from the mob”.
Hussain’s lawyers opposed the police
demand, stating that identifying the
other accused and recording Hussain’s
confession could not be a ground for
his remand.
The judge, while granting four-day
police custody, said: “I find force in the
submissions of the IO that to unearth the
conspiracy which led to the riots and
massive loss of life and property, police
remand is required.”
The Yogi Adityanath government in
Uttar Pradesh filed an affidavit in the
Allahabad High Court seeking more time
to file a compliance report in the case
related to hoardings with details of the
anti-CAA protesters put up in Lucknow.
Last week, the High Court had ordered
the Lucknow administration to remove
the hoardings and the banners carrying
photographs and details of over 50 peo-
ple accused of violence during an anti-
CAA protest in the city last year. The
Court also said a report of satisfactory
compliance was required to be submit-
ted by the district magistrate to the reg-
istrar general of the Court on or before
March 16.
“The state government filed an affi-
davit seeking more time to file a compli-
ance report. The state government
also referred in the affidavit about SLP
filed in Supreme Court against the
Allahabad High Court order directing it to
take down name-and-shame hoardings.
We have stated in the affidavit that the
SLP is pending in the Supreme Court,”
said Additional Advocate General
Neeraj Tripathi. On March 12, a two-
judge bench of the Supreme Court,
hearing UP’s challenge of the High Court
order on the hoardings, had referred the
matter to a larger bench.
UP government
seeks more time for
hoardings report
Delhi court sends
Hussain to police
custody
Delayed but
not denied
Akshay Thakur Mukesh Singh
Vinay Sharma Pawan Gupta

12 March 30, 2020
LAW
CAMPUSES / UPDATES
Law campuses shut down in the
wake of coronavirus threat
National Law University
Odisha (NLUO) Centre
for Women & Law has
invited contributions
for its edited volume on
“Socio-Legal Andro-
centrism and Gender
Inequalities”.
Centre for Women &
Law at NLUO proposes to
bring out an edited vol-
ume with a multidiscipli-
nary approach on “Socio-
legal Androcentrism and
Gender Inequalities”.
Objective of the proposed
book is to contribute in
the dismantling of the
metanarrative of patri-
archy which relegates
NLUO invites submissions for
its volume on androcentrism
and gender inequalities
In the wake of an outbreak of COVID-
19 in India, various law colleges and
campuses have suspended classes and
are encouraging self-quarantining for
students and trying to minimise face-to-
face contact amongst students, teach-
ers and staff members.
Events, competitions and seminars
due across campuses stand suspended
till further notice.
Following a UGC advisory the
National Law Institute University (NLIU),
BhopaL, Maharashtra National Law
University Aurangabad, NLU Ranchi,
NLSUI Bangalore, CNLU Patna, HPNLU
Shimla, ICFAI Law School Dehradun,
NLU-Odisha, etc have either suspended
classes till further notice or have issued
guidelines to minimise contagion.
Amity University has called off all
face-to-face classroom activities until
March 31. Instead they have arranged
for online classes. However, its faculties
and staff would continue to observe
normal working hours until
further notice.

—Compiled by Nupur Dogra
The Journal for Environmental
Law Policy and Development
(JELPD), published yearly by the
Centre for Environmental Law
Education, Research and
Advocacy, National Law School of
India University (NLSIU), has invit-
ed authors to send their contribu-
tions for Volume-vii. 2020. The
JELPD is now UGC-CARE certified
(2019).
Authors can contribute short
articles, long articles, book
reviews and case comments. The
contributions are invited on a
broad theme of Environmental Law
Governance and Jurisprudence:
Contemporary issues and chal-
lenges. The authors are requested
to send their submissions on or
before April 10. The selected
authors will be notified by April 20.
postponed due to the
sudden outbreak of
the COVID-19 virus in
the country. The post-
poned dates will be
announced in due
course of time.
Inconvenience caused
is regretted,” read a
notification by the
university.
“On account of
health concerns over
the outbreak of
COVID-19 in India, the
University has taken
the tough decision to
postpone the 2nd
NLUJ Deal Mediation
Competition (previously scheduled to
be held from March 19-22, 2020) to
August 20-23, 2020,” read an NLU
Jodhpur notification.
A workshop on blockchain technolo-
gy and e-governance scheduled on
March 14, 2020 at the Gujarat National
Law University (GNLU) through its Cen-
tre for Law and Technology in collabo-
ration with the government of Gujarat
has been deferred till further notice.
Following the UGC notification dated
March 5, instructing students to min-
imise large gatherings on campus and
to control any activities that might trig-
ger further spread of the novel coron-
avirus, law campuses across India are
taking such steps to ensure healthy
campuses. Sudden outbreak of COVID-
19 highlights the preparedness of
campuses to deal with an emergency
situation.
It also points at the need for more
online classes as well as the availability
of technical infrastructure across cam-
puses in India to facilitate such classes.
Jamia Milia Islamia University has
directed its teachers to make the study
material available online and has issued
an advisory to minimise face-to-face
contact. The schedule for University
examination remains the same in Jamia.
National Law Institute University (NLIU),
Bhopal has not only been shut down
until further orders but the examinations
have also been cancelled.
Students of the Hidayatullah National
Law University (HNLU), Raipur were
told to leave the University premises
within a day. The University further
issued a notice saying that it would
resume classes once it was sure about
its preparedness to deal with the corona
outbreak. On March 10, the Kerala gov-
ernment ordered a partial lockdown in
the state to curb the outbreak. Following
which the National University of
Advanced Legal Studies (NUALS), Kochi
suspended its classes as all educational
institutions were directed to be closed
until March 31.
As the classes remain suspended
various events also have been post-
poned. “The NUJS International
Conference on Criminal Justice
Administration: Emerging Issues in 21st
Century which is scheduled to be held
during March 20-22, 2020 has been
women to the ‘second
sex’ and hinges their
existence relative to the
men. Androcentrism
and metanarrative of
patriarchy has tradi-
tionally influenced and
shaped social behav-
iours, norms and cul-
tural outlook.
The authors can
submit on themes like
patriarchal metanarra-
tive and gender
inequalities, epistemol-
ogy of gender, mod-
ernism, post-mod-
ernism and gender,
third and fourth wave
of feminism gender
stereotypes and its
impact on socio-legal
perception of gender,
law and gender
inequalities, customary
practices and gender
discrimination, reli-
gious personal law and
gender discrimination
and so on. Last date
of submission is June
30, 2020.
NLSIU calls for
paper for JELPD

Lead/ COVID-19 & Judiciary
14 March 30, 2020
HE global outbreak of
COVID-19 or the corona-
virus, which has been
declared a pandemic, has
had far-reaching conse-
quences. Efforts to limit its
spread and treat all those seen with the
slightest symptoms have left govern-
ments worried. The turmoil associated
with it has not only affected the health
of citizens but all spheres of life—eco-
nomic, financial, political, educational,
travel and tourism, aviation…. In fact, it
has simply changed the way we live.
The government through a notifica-
tion on March 5, 2020, advised that
mass gatherings be avoided, and if pos-
sible, be postponed till the spread of
COVID-19 is contained. In these cir-
cumstances, the judiciary too has made
attempts to ensure the safety and well-
being of litigants, judges, advocates, visi-
tors and staff. Notices and circulars have
been issued by different courts in India,
starting with the Supreme Court, with
various directions to curb the spread of
this deadly virus.
A Supreme Court circular on March
13, 2020, said that only six benches
would be sitting. This was further redu-
ced to four on March 19. The Court res-
tricted the functioning of courts to only
urgent matters and directed that only
lawyers who were going to argue a case
be allowed in. It also restricted the visits
of casual visitors and non-essential
work. All cafeterias, including the dep-
artmental canteen in the Court premises
and the Supreme Court Museum, re-
main closed. The guided tour in the
Court too has been suspended. The
Court premises have been stocked with
alcohol-based sanitisers and all common
Coronavirus Plagues
The Court System
Judgesandlawyersincourts
arestrugglingtodispense
justiceevenasthefearof
transmissionofthevirus
takeshold.Sobenchesare
beingreduced,crowds
curtailedandonlyurgent
matterslisted
By Srishti Ojha
T
Anthony Lawrence

areas such as restrooms, corridors and
staircases are to be sanitised on a
daily basis.
In addition, a self-declaration form
has been introduced for entry into the
premises. Details regarding a visit to a
foreign country in the last 15 days and
any symptoms of fever, sore throat,
runny nose, cough or breathing prob-
lems have to be filled in. The Court has
also asked everyone to be well aware of
the regulations issued in this regard,
particularly on “screening” and “dealing
with suspect and symptomatic cases”. It
has also said that the guidelines for
home quarantine, use of masks by the
public and do’s and don’ts issued by the
health ministry be followed.
Every person entering the Supreme
Court has to subject himself to thermal
screening and if anyone is detected with
high body temperature, he will not only
be denied entry but be subject to the
standard operating procedure pres-
cribed by the health ministry. All law-
yers and litigants from across the coun-
try who want to avoid visiting the Court
will be allowed to do so on request and
their matters will not be listed. All those
entering the Courts have been advised
not to crowd at any spot to ensure their
safety and that of others and to exit as
soon as their official business is over.
In a direct interaction with journal-
ists in the Court, Chief Justice of India
(CJI) SA Bobde agreed that there would
be a daily briefing of the day’s news and
prompt uploading of orders on the web-
site. He also stated that restrictions due
to COVID-19 cannot be relaxed for jour-
nalists. The CJI had called an urgent
meeting to discuss the steps required to
be taken for the functioning of all courts
in the country in the wake of the coro-
na-virus. It was attended by Justices
Arun Mishra, UU Lalit, DY Chan-
drachud and L Nageswara Rao. He had
stated that there cannot be a complete
shutdown of courts but a limited one is
required as virtual courts are on the
verge of commencement.
Justice Chandrachud, being the
chairman of the Supreme Court E-Com-
mittee, has assured that soon people-to-
people contact will be reduced and vi-
deo-conferencing will be introduced
where separate rooms for the counsel
for each of the parties will be made av-
ailable in the apex court premises. CJI
Bobde along with Justices Nageswara
Rao, Ashok Bhushan and Sanjay K Kaul
took a round of the Supreme Court to
ensure that the directions issued by the
Court were being followed by lawyers.
They took note of crowd management
and other matters and questioned
lawyers on why the Court was still
crowded.
S
afety measures are also being
taken by the High Court and dis-
trict courts. Through a notifica-
tion on March 13, the Delhi High Court
informed that it would only be hearing
matters which are urgent and dates
would be given in routine matters before
the Court assembles. It also issued an
advisory to district courts that they
should not insist on the presence of par-
ties unless unavoidable and appropriate
measures should be taken to regulate
the entry of litigants and the public in
the court complex to avoid overcrowd-
ing. In the absence of the parties con-
cerned, adverse orders shall not be
passed by courts and adjournments
should be allowed, it said. Written sub-
missions should be called for and the
time for oral submissions should be
reduced. Video-conferencing should be
put to optimum use for the purposes of
recording of evidence and physical pro-
duction of undertrials from jails should
be avoided.
District and sessions judges were also
advised to consult prison authorities and
take steps to curtail unnecessary crowd-
ing in lock-ups. The High Court has also
advised that medical dispensaries in
courts should be equipped to deal with
the present situation, sanitisers be made
available for everyone and the house-
keeping staff be asked to ensure that the
highest level of hygiene is maintained in
the court complex and disinfectants
sprayed on a regular basis.
CJISABobdeagreedtoadailybriefingof
theday’snewsandpromptuploadingof
ordersonthewebsite.Hecalledan
urgentmeetingtodiscussthesteps
requiredforthefunctioningofallcourts.
BETTER SAFE THAN SORRY
A doctor measuring the temperature of a
woman at the Allahabad High Court entrance
UNI

Lead/ COVID-19 & Judiciary
16 March 30, 2020
Meanwhile, this outbreak has even
affected exam schedules. The Delhi Hi-
gher Judicial Service (Mains) Examina-
tion-2019, scheduled to be held on Mar-
ch 14 and 15, and the viva voce of the
Delhi Judicial Service Examination-
2019, scheduled to be held from March
23, have been postponed. New dates will
be notified later.
The Coordination Committee of the
District Courts also passed a resolution
on March 15 requesting that court buil-
dings be sanitised regularly, temperature
guns be used at the entry gates and law-
yers be asked to not gather in groups.
Lawyers of district courts have been
asked to abstain from work and attend
urgent hearings only such as bail, stay,
etc. The advisory has also requested
judges to not order any dismissal on
grounds of default or have evidence re-
corded, consider the applications for
condonation of limitation period and
adjourn regular matters.
I
n the case of National Company
Law Tribunal (NCLT) benches, they
will only take up matters which
require urgent hearing on request by the
concerned parties. It will adjourn the
remaining matters listed before March
27 and parties and counsel presence will
not be compulsory. An NCLT notice also
directed that there be restricted use of
air conditioners as low temperatures
could aggravate the problem.
The National Consumer Commission
too has decided to adjourn all matters
till April 15 and will only hear urgent
matters. For the convenience of counsel,
the Commission has clarified matters
that will be treated as urgent matters,
including the stay of arrest warrants,
orders which cannot be deferred till the
next hearing, etc. Urgent matters will
only be listed after prior approval of the
listing officers and filing of an affidavit
by the applicant. The Commission has
also directed that only advocates who
have to argue, along with one party, will
be allowed to enter the courtrooms.
Fresh matters will only be filed and not
listed till April 15. The Commission has
also clarified that any person suffering
from COVID-19 or showing symptoms
like fever, dry cough or breathlessness
will not be allowed to enter the premis-
es. Also, advocates and litigants entering
the Commission have to ensure that no
material filed or brought by them is con-
taminated in any manner.
The fear of the coronavirus has
begun to grind the scales of justice as
judges and lawyers struggle to balance
the constitutional rights of people
against the concern of transmission to
multiple people. But the steps that are
being taken are required considering the
number of identified cases of COVID-19
in India, the severe risk it poses to the
public and the recommendations of
public health authorities.
Punjab and Haryana High Court: Instructions
from the Court said rotation arrangement of offi-
cials in different sessions divisions be made to
reduce footfall in the premises and all regular list-
ed cases be adjourned. All fresh criminal and
civil matters will be listed by mentioning only.
Medical teams with thermal guns will be dep-
loyed at each entry gate and litigants will not be
required to come unless specifically ordered.
Bombay High Court: Courts in the High Court
as well as benches will listen only to urgent matters, entry of litigants is restricted
and orders of ad interim and interim relief shall continue to operate.
Madhya Pradesh High Court: Only cases filed in 2020 will be listed in the daily
causelist while those filed up to 2019 will stand adjourned. Work will be restricted to
urgent matters. The presence of parties must not be insisted upon.
High Court of Meghalaya: Only urgent matters to be taken up to avoid mass
gathering, video-conferencing to be used at the lock-up, screening for everyone
entering the Court, premises to be vacated at 6 pm and sanitised thereafter.
Patna High Court: Organise an awareness camp in the premises, physical pres-
ence of parties not to be insisted upon, entry of litigants and the public to be regu-
lated, mediation proceedings to be postponed and no functions to be organised.
Kerala High Court: Total restriction on entry unless summoned by the Court.
Mediation and adalat proceedings to be suspended, frequent sanitisation and ther-
mal screening to be ensured.
High courts all over the country have
released a slew of instructions to curb the
spread of the coronavirus
Highcourtsonalert
TAKING PRECAUTIONS
A nurse uses a thermal screening device on
an advocate inside the Patna High Court
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Lead/ Column/ Coronavirus & Quarantine Laws Dr KK Aggarwal
18 March 30, 2020
TALY counts its dead at over 2500
with its stretched resources strug-
gling to grapple with a gargantuan
medical crisis sparked by the coro-
navirus. Reports have emerged
that anyone showing symptoms of
the disease who refuses to self-isolate
risks being charged with causing injury
and being jailed for six months to three
years apart from being slapped with a
fine. And if a “careless” coronavirus suf-
ferer goes on to pass the bug to an elder-
ly person or someone made vulnerable
by a pre-existing health condition, they
can be charged with “intentional mur-
der” and can spend up to 21 years in jail.
Other countries are no less strict
when it comes to dealing with such
cases, though not surprisingly, the
Chinese hand out the harshest punish-
ments. China which had similarly
threatened execution and long jail sen-
tences during the 2002-03 SARS epi-
demic for anyone avoiding quarantine
and spreading the disease has said it
would severely punish 36 crimes related
to the prevention and control of the
epidemic in accordance with the law, in
which violators could face the death
penalty. Spreading rumours about the
outbreak has been linked to “subversion
of state power” and will attract swift and
harsh punishment.
In the United States, depending on
state and local statutes, individuals
could face fines, criminal charges, and
even jail time for breaking
quarantine. According to
the Centre for Disease
Control and Prevention,
“federal, state, or local
public health orders may
be issued to enforce isola-
tion, quarantine or condi-
tional release.”
In Hong Kong, police
nabbed a part-time securi-
ty guard at a shopping mall
for allegedly writing on
social media that multiple
staff members had caught
a fever and gone on sick
leave. The messages
“caused panic” and helped
“breed paranoia”.
Singapore imposes severe penalties
for non-compliance with the quarantine
order, including fines or jail time. In
Saudi Arabia, a fine of up to 500,000
riyals ($133,000) is imposed on people
who do not disclose their health-related
information and travel details at
entry points.
In India, the central government has
taken several measures to deal with the
epidemic, including setting up of quar-
antine facilities and rescuing Indian
citizens stranded abroad. Both the cen-
tre and state governments are empow-
ered to regulate health-related matters.
The Epidemic Diseases Act is the
main legislative framework at the cen-
ToughlawsexistinIndiatodealwithviolationof
quarantineandisolationnormsbutitdoesnot
appearasifanyonehasbeenpunishedfor
non-compliance
I
tral level for the prevention and spread
of dangerous epidemic diseases. The Act
empowers the central government to
take necessary measures to deal with
dangerous epidemic disease at ports of
entry and exit. The Act also empowers
the states to take special measures or
promulgate regulations to deal with epi-
demics within their state jurisdictions.
Powers executed by the Union home
secretary under the disaster manage-
ment Act were “delegated” to the health
ministry to enhance preparedness
against the coronavirus outbreak. The
Union home ministry order said the
powers are exercised by the Union home
secretary under Section 10 of the Act
and he being the Chairman of the
Corona And
Punishment

or vessel leaving or arriving at any
port and for the detention of any
person arriving or intending to sail.
Any person who disobeys any regula-
tion or order made under the 1897
Act may be charged with an offence
under Section 188 of the Indian
Penal Code.
It is not necessary that the
offender should intend to produce
harm or contemplate his disobedi-
ence as likely to produce harm. It is
enough that he knows of the order
which he disobeys, and that his
National Executive Committee (NEC),
the powers are vested with him.
Under the Epidemic Diseases Act
1897, thus, any state government, when
satisfied that any part of its territory is
threatened with an outbreak of a dan-
gerous disease, may adopt or authorise
all measures, including quarantine, to
prevent the outbreak of the disease.
S
imilarly, the central government,
when satisfied that there is an
imminent threat of an outbreak of
an epidemic disease and that the provi-
sions of the law at that time are insuffi-
cient to prevent such an outbreak, may
take measures and prescribe regulations
allowing for the inspection of any ship
DEALING WITH A PANDEMIC
People wearing masks waiting in queue at
Patna airport to get tested
In the time of the coronavirus, pan-
icky people have tried to escape quar-
antine and invited legal action
An 18-year-old Kolkata patient of
COVID-19, the son of a top bureaucrat
in West Bengal, has reportedly flouted
norms on returning from the UK. He
was advised by airport authorities to get
admitted to Beliaghata ID Hospital on
March 15. He reportedly defied the
authorities and went on with his social
life and met many people. Finally, on
March 17, the state health department
forced him to get admitted, following
which he tested positive.
A Briton, part of a travel group, was
among 20 passengers who were
offloaded from a Dubai-bound Emirates
flight at Kochi airport. He was under
quarantine at a Kerala resort but left it
and reached Kochi. Authorities stopped
the plane and deplaned him.
Meanwhile, the resort was closed even
as the staff there expressed displeasure
that they were not advised properly.
Authorities were thinking of taking legal
action against the Briton for violating
the Public Health Act, the travel agent
who coordinated the tour programme
and the manager of the resort.
A woman and her husband, a Google
employee, returned to Bengaluru after a
honeymoon in Italy. While the husband,
who tested positive, was placed under
quarantine, she took a flight to Delhi
and then a train to Agra and hid in her
parental home. It was only after the
police was called in that she was taken
to an isolation ward. As she and her
father had misled authorities, they have
been booked by the police under the
Epidemic Diseases Act, 1897.
A man under observation in the isola-
tion ward of a district hospital in
Pathanamthitta, Kerala, fled, but was
tracked and brought back within hours.
A couple from the US who had symp-
toms linked to the coronavirus were
traced to Kochi international airport
and put under isolation after they fled
Alappuzha Medical College.
Trackingthemdown
UNI

20 March 30, 2020
disobedience produces, or is likely to
produce, harm. Such offence, at the dis-
cretion of the trial magistrate, may be
tried summarily. No suit or legal pro-
ceeding lies against any person or
authority for anything done, or in good
faith intended to be done, under this Act.
U
nder Section 270 of the Indian
Penal Code, whoever malig-
nantly commits any act which
is, and which he knows or has reason to
believe to be, likely to spread the infec-
tion of any disease dangerous to life,
shall be punished with imprisonment of
either description for a term which may
extend to two years, or with fine, or
with both.
So far, testing in India has been done
mostly on visitors coming in from
abroad. The process involves a health
officer who is appointed by the central
government posted and empowered at
the port of entry. The health officer may
demand to see the aircraft journey log-
book, which shows the places the air-
craft visited. He may also inspect the
aircraft, its passengers, and its crew, and
subject them to medical examinations
after their arrival.
The officer must follow specific pre-
cautions about communicable diseases
that require a period of quarantine
(such as yellow fever, plague, cholera,
smallpox, typhus, and relapsing fever)
and other infectious diseases that do not
require a period of quarantine. He may
prohibit the embarkation on any aircraft
of any person showing symptoms of any
quarantinable disease and any person
whom the health officer considers likely
to transmit infection. Regulations re-
quire that airline staff report any sus-
pected cases or passengers who in their
opinion, from observations made
in-flight, may be suffering from symp-
toms of a quarantinable disease.
It is argued that quarantine affects
the fundamental right “to move freely
throughout the territory of India.”
However, this right is subject to reason-
able restrictions that the state may
impose in the interest of public health.
The Epidemic Diseases Act also gives
wide-ranging powers to the states.
In such emergencies, the state may
delegate some of these powers to the
deputy commissioners in the districts
typically through state health acts or
municipal corporation acts. A state gov-
ernment may also take measures and
prescribe regulations for the inspection,
vaccination, and inoculation of persons
travelling by road or rail, including their
segregation in a hospital, temporary
accommodation, or otherwise, if such
persons are suspected by the inspecting
officer of being infected with any such
disease. A state government, by general
or special order, may also empower a
deputy commissioner to exercise, in
relation to his district, all the powers
under Section 2 of the 1897 Act that are
exercisable by the state government in
relation to the state, other than to deter-
mine the manner in which and by whom
any expenses are to be defrayed.
Many of these powers are prescribed
in municipal corporation acts governing
“major municipal areas,” or public
health acts that also provide municipal-
level commissioners or collectors with
quarantine or other powers. These can
be in relation to removal of a person to
separate premises for medical treat-
ment, cleansing or disinfecting any
building or part of any building or any
articles, taking special measures in case
of the outbreak of dangerous or
epidemic diseases.
The ambit of Section 2 of the
Epidemic Diseases Act is wide enough
to allow a state or a lower functionary
in the administration, in dealing with
an emergency caused by the outbreak of
a dangerous disease, to seek or require
the cooperation of the public or corpo-
rate bodies in the public or private sec-
tors. If the desired cooperation is not
forthcoming, a regulation may be
imposed. Failure to obey or comply
with restrictions imposed by such a reg-
ulation constitutes a punishable
violation. Violations of quarantine laws
(see box) have been reported from some
places in India but it does not appear as
if anyone has been punished.
—The writer is President, Confederation
of Medical Associations of Asia and
Oceania, and Heart Care Foundation
of India and a former national
President, IMA
TREADING WITH CAUTION
An elderly woman being screened by
authorities before entering an airport
Lead/ Column/ Coronavirus & Quarantine Laws/ Dr KK Aggarwal
UNI

jaquarlighting.com
CO M M E R C I A L
I N D O O R | O U T D O O R L I G H T I N G
PRICE LIST EFFECTIVE FROM OCTOBER 2018

Lead/ Opinion/ COVID-19 S Narendra
22 March 30, 2020
HE government of India
has done well to declare
the existential threat of
corona virus-19 (CV-19) a
national disaster. There
could be two opinions
about the adequacy of measures taken
so far to protect people against this pan-
demic. It is well to remember that it has
overtaken the seven continents with the
least warning and overwhelmed most
countries’ governments. Countries with
enormous financial and health-related
resources are finding it difficult to cope
with the CV-19 challenge.
It is a time for citizens to proactively
support the official measures by follow-
ing the guidelines regarding personal
hygiene and social distancing. The latter
is a tough call in a densely populated
country like India where people live
cheek by jowl. The burden of keeping
the virus away largely falls on the indi-
vidual and the family, calling for a total
transformation of social and personal
behaviour. As of now, the government’s
attention is concentrated on putting in
place policies and programmes to con-
trol its spread and on mitigating the
pandemic’s adverse effects on the econo-
my and people’s livelihoods.
India, like many other countries such
as China, the US, Britain and members
of the European Union, is contemplat-
ing fiscal and monetary measures to
stimulate the economy. As many econo-
mists have said, economic theory has
no answers as it has never faced, nay,
never contemplated the dislocation of
life caused by the CV-19 pandemic. It is
outside the demand-supply framework
(the invisible hand of market forces) of
the discipline.
Noted American economist Tyler
Cowan in a recent online post wrote
Lessons from its
Freakonomics
Thenationaldisasterhasledtoconsequenceswhichpolicymakers
shouldlookat.TheseareinadequaciesinIndia’shealthinfrastruc-
ture,deficienciesindistanceeducationanddistressamongSMEs
T

that basic economic concepts like “infla-
tion” are no longer useful when toilet
paper, face tissues, sanitisers, soaps and
masks become more valuable than the
commodities in the normal basket of
goods whose prices are studied for
measuring inflation and adjusting lend-
ing interest rates.
G
overnments are now required to
deal with a hydra-headed prob-
lem on an emergency basis.
CV-19 has arrived on the back of an eco-
nomic slowdown that had drastically re-
duced the government’s revenues. The
shutdown of vital economic activities in
most sectors due to the pandemic will
further dim governments’ revenue out-
look. It is a double whammy because
now they are required to deal with a
many-headed problem using massive
resources. Considering the enormity of
the challenge, they will do well not to
rush to bail out businesses which are
making the most noise. Perhaps, the
outlines of the economic and social chal-
lenges are yet to emerge fully in order
for a measured response to be thought
of. The world, including India, seems to
be headed for the long haul.
There are likely to be some unin-
tended consequences from the ongoing
“national disaster” which may need to
be reckoned by policymakers. Such con-
sequences are studied under the title of
Freakonomics by some noted econo-
mists. CV-19 is exposing in both rich
and poor countries massive inadequa-
cies in health infrastructure, a key con-
tributor to any nation’s human resour-
ces. It will do a lot of good if the media
and experts are allowed to put the In-
dian public health infrastructure and
the economic model that tilts it in fa-
vour of privatising health to a lot of pub-
lic scrutiny. Perhaps, for the first time,
the nation will be X-raying this sector,
hopefully gaining it the priority it des-
erves in central and state budgets.
Many health sector experts have
lamented that the centre and state gov-
ernments’ combined expenditure on
health is far lower than India’s neigh-
bours’. Economist Joseph Stiglitz has
said that the trend of moving away from
public to private healthcare in India was
pushing more people into poverty fast.
The present situation is a great opportu-
nity for bringing back healthcare into
the national political agenda. Unfor-
tunately, the gains in the health sector
are post-dated, invisible and offer less
scope for political kickbacks that accrue
from building physical infrastructure.
Hence, it tends to receive lip-service.
The COVID-induced closure of edu-
cational institutions also offers an open-
ing for examining the deficiencies of dis-
tance education and utilising the tre-
mendous possibilities offered by tech-
nology for delivering quality education
and skills to the masses at less cost. Its
quality has to be improved vastly and
used for improving the standard of edu-
cation imparted in government schools
and colleges.
The government, academia and tech-
nology innovators need to be brought
together to collaborate in this sector. If
governments care to use a significant
part of the stimulus money for the above
two objectives, it would improve India’s
competitive advantage, encashing the
available demographic dividend.
A third priority should be to bring
relief to the informal sector due to the
shutdown. This sector provides the bulk
of employment to about 472 million
people. The formal sector accounts for
just 10 percent of jobs but has more
A HYDRA-HEADED PROBLEM
(Below left) Ward boys and nurses oversee
preparations in an isolation ward related to the
coronavirus at a Lucknow hospital; a nurse
thermal screening a patient in Patna
CV-19isexposinginrichandpoorcoun-
triestheinadequaciesintheirhealth
infrastructure.Perhapsforthefirsttime
thenationwillbeX-rayingthesector,
hopefullygivingitthepriorityitdeserves.
Photos: UNI

24 March 30, 2020
voice in policymaking. The economic
distress caused to workers who have no
job guarantees and no social security
cover is unimaginable because of the
shutdown. Going by the experts’ opin-
ion, the COVID emergency could last
fairly long. Announcements such as
facilitating more credit to SMEs are
conventional solutions which may not
be adequate in this dire situation. The
livelihood of a huge number of wage
earners whose only tradable asset is
physical labour is under threat. How to
fulfil their basic food needs requires
immediate attention. One does not
know whether governments should
consider opening something like free
soup kitchens. In New York, according
to a New York Times report, some
7,50,000 schoolchildren were depend-
ent on their school which provided one
daily meal. The shutting down of
schools has deprived them of this. If
that is the situation in the US, imagine
the plight of children and their families
in India who have no daily, regular
wage-earning work. This is mentioned
here mainly to point out the enormity of
the problems facing the polity.
T
here was a report that the air
quality over China had improved
due to the COVID 19-induced
lockdown. Ironically, global warming
effects will be less due to the economic
shutdown. Every past year this millenni-
um has seen an increase in global tem-
perature; 2020 may be an exception.
This is one of the Freakonomics effects.
Policymakers, if so inclined, can draw
some lessons and build them into post-
COVID policies.
CV-19 is compelling us to change our
social and personal behaviour. We have
the option to resume our life with busi-
ness as usual in the post-COVID era,
leaving our fate and that of the universe
to market forces and climate change. We
also have the option, having come out of
an existential threat, to modify our
lifestyles which were defined by instant
gratification of wants and adopt a more
environment-sustainable one. One
hopes that traditional economic theory,
hinged to consumption-based capitalism
that shapes government policies, learns
lessons from the COVID crisis and its
consequences for people whose life is on
the fringes of the market forces but who
are vital to the overall economy.
The challenge posed by COVID-19
has to be fought at the state, district and
village level without a clash of political
egos. In this humbling moment in the
nation’s history, the sagacity of leaders in
Delhi and state capitals will be tested. It
is time to show a shared vision and
resolve for infusing confidence in the
people that the political system is united
in navigating them out of the pandemic.
—The writer is a former information
adviser to the PM and a government
spokesperson
Lead/ Opinion/ COVID-19/ S Narendra
Theclosureofeducationalinstitutions
duetoCV-19offersanopeningfor
examiningthedeficienciesofdistance
educationandusingtechnologyto
deliverqualityeducationatlesscost.
TOUGH BUT NECESSARY
(Left) Citizens must follow the
guidelines on personal hygiene and
social distancing; Union Health
Minister Harsh Vardhan has laid
stress on community surveillance

Lead/ Global Trends/ Corona Effect
26 March 30, 2020
T would be comedy if it weren’t so
painful and deadly. People strip-
ping grocery store shelves bare of
toilet paper and hand sanitiser. A
virus from China named like Mexi-
co’s Corona beer brand has brought
the United States to a state of siege
where the economy is crashing, people
are dying and with it diminishing opti-
mism among Donald Trump’s advisors
and pundits that he can be reelected.
You cannot gaslight a pandemic.
The states of New York, Connecticut
and New Jersey have ordered restau-
rants and clubs to only provide take-
away, no sit-down dining or entertain-
ing. A few days ago, a drive into New
York City and a walking tour indicated
that the Big Apple had lost something,
as Broadway shows were closed and
now the restaurant ban is in effect. The
Broadway show closings alone put near-
ly 250,000 people on leave, most of
whom do not get paid if they don’t
work. Add in all the support business-
es—suppliers of services to the hospitali-
ty business—and it becomes quickly
obvious that without the bells and whis-
tles, New York City is a very quiet and
dismal place.
US Lockdown
Theimpactofthecoronavirus,financiallyandpsychologically,
isgoingtolastalongtimeandchangeAmericaforever
By Kenneth Tiven in Washington
IA THOUSAND WORDS
(Above) The desolate streets of
New York City, the empty
Columbia University quadrangle
and empty shelves at a store after
shoppers grabbed almost
everthing due to the anxiety
caused by the coronavirus

particularly ineffective given the mag-
nitude of the problem. There’s a lot
of confusion about respirators vs
ventilators. And it comes from a lack
of understanding just how few hospital
beds exist in a nation of 330,000,000
people.
Respirators protect the doctors,
allowing them to breathe safe, filtered
air. Critically ill patients require venti-
lation—hence ventilators, a shortage
that directly results in death. Indirectly,
the respirator shortage will result in
infected healthcare workers, some of
whom will die.
Memories and anger are long-last-
ing when loved ones die and fail to
make the graduation ceremonies. The
impact, both financially and psycholog-
ically, is going to last a long time and
change America forever. The question
no one can answer right now is in
which direction.
— The writer has worked in senior
positions at The Washington Post, NBC,
ABC and CNN and also consults for
several Indian channels
A Friday afternoon felt like an early
Sunday morning, not much traffic, a few
people jogging in Central Park, while
others sat on the steps of closed muse-
ums and art galleries.
On a warm March day, the Columbia
University quadrangle was empty. Usu-
ally it would have been filled with stu-
dents relaxing in the 17-degree Celsius
sunlight. Schools across America have
been shut for the foreseeable future.
Will there be graduation ceremonies in
May as promised by a Columbia poster?
Doubtful and with it goes an entire sub-
set of business services that make grad-
uations festive, from caps and gowns, to
all the food and drink served outdoors
to the graduates and their families.
All of this was in stark contrast to
New York City in the days after the 9/11
terrorist attacks on the World Trade
Center. Then the resilience and bravado
of Americans was on full display with
flags and signs and a desire to rebuild
quickly. Now an air of resignation ele-
vated by fear is on display.
New York Governor Andrew Cuomo,
a Democrat and son of a famous former
governor, took a very proactive position
from the start of the health crisis, while
criticising President Trump’s lack of
political leadership. Cuomo emphasised
that the priority must remain slowing
the spread of the virus, saying: “You are
past the time of monetising these deci-
sions. You are at a point of deciding:
how many people are going to live, how
many people are going to die?”
T
he imposition of behavioural
controls doesn’t conform to the
mythology of America—wide-
open roads and spaces, a go anywhere,
do anything, wherever you want to
sort of a place. And more distressing to
some is that this is an unseen assailant
that knows no class or geographic
boundaries.
What we do know is that it has a
higher fatality rate among elderly peo-
ple, especially those with underlying
health issues. For several weeks, the
president of the United States kept
insisting that it was just like the flu. It is
not flu, it is a lung disease. For the most
part, the health experts assembled aro-
und Trump kept their mouths shut, with
only grim faces and crossed arms con-
tradicting him.
The American health system looks
Forseveralweeks,USPresidentDonaldTrumpkeptinsistingitwasjustliketheflu.But
itisnotflubutalungdisease.Forthemostpart,thehealthexpertsassembledaround
himkepttheirmouthsshut,withonlytheirgrimfacescontradictinghim.
UNI
NewYorkGovernorAndrewCuomo
tookaveryproactivepositionfromthe
startofthehealthcrisis,whilecriticising
PresidentDonaldTrump’slackof
politicalleadership.

My Space/ Supreme Court Annual Report 2018-19 Prof Upendra Baxi
28 March 30, 2020
HE Supreme Court has
begun issuing annual re-
ports concerning the ad-
ministration of justice by
it and High Courts since
2015-16, but the media
and academic journals have largely
maintained an unwelcome discreet si-
lence about these. This frustrates a great
innovation; indeed, I recall as a compar-
atively young research scholar that I had
to perform almost Heraclitan labours in
the eighties even to obtain the irregular-
ly published annual reports on adminis-
tration of justice by High Courts! Diffi-
culties of access accompany even the
new legal regime of right to informa-
tion. Now, this goldmine of information
is simply available at the click of a digi-
tal mouse!
In introducing the 2018-2019 Re-
port, Chief Justice Sharad A Bobde
has expressed the institutional commit-
ment of the judiciary towards “a demo-
cratic discourse between all stakeholders
of the Indian Judiciary” and articulated
a hope that this “periodic stock-taking
of our role as ‘Guardians of the Consti-
tution’ as entrusted on us by the Cons-
titution of India” will generate and
nourish “a symbiotic relationship” am-
ong all “stakeholders” in the “actualisa-
tion of goals set by the Constitution”.
One hopes that this relationship is
enriched by not only a close study by
many publics, including all sections of
the Bar, but by law schools, judicial
academies and students of judicial
process and power everywhere.
An Annual Report comprising 335
pages, with 157 dedicated to the Sup-
reme Court (which this article engages
here because of space constraints), and
replete with crucial information about
the judicial system, its achievements
and technological and managerial inno-
vations makes a fascinating but difficult
reading. Difficult because it is at once a
medium that clarifies but also obscures
information; the interplay of creative
and censorious aspects deserves notice.
For example, most Indians would
never have known that Mohandas
Gandhi appears twice in the Court’s
architecture. He appears first in “a beau-
tiful mural of coloured porcelain tiles in
the Judges Gallery, with the Goddess of
Justice on the right”. This juxtaposition
is of great significance for achieving the
constitutionally desired social order,
an expression that I developed as early
as 1967!
And second, while one does not even
know why the statue of Mohandas
Gandhi was installed as late as August 1,
1996, in the lawns of the Supreme
Court, one at least knows now that it
“was sculpted by the renowned artist
Fredda Brilliant Marshall”. Khushwant
Singh wrote: “The memory of her stand-
ing stranded behind a giant copy of the
statue of Gandhi stuck between the
front door and her studio remains a
telling image of her constant struggle
with her art and the world about her.” In
different ways, the ascetic Mahatma and
the woman artist thus signify a potent
symbol of gender equality and justice.
The reason given why the Goddess of
Justice is not blind-folded “is that as per
Towards Democratic
Judicial Accountability
Thisgoldmineofinformationisrepletewithcrucialinformationaboutthejudicial
system,itsachievementsandinnovations.However,wemuststudybothwhatit
choosestosayandwhatitdoesnot...
T

Vedic sutras, the deity of Justice does
not close its eyes but allows the graceful
rays from its eyes to illumine the admin-
istration of justice”. This re-symboliza-
tion is of great value, and not just for
the miniscule visual anthropologists!
So is the annotation that the inscrip-
tion surrounding Dharma Chakra
(Wheel of Justice) with 24 spokes is in
Sanskrit: “Satyamevoddhaharamyaham”
which means “Truth alone I uphold”,
which applies to judicial duty and valour
as well. What impact this summation
has on the Bench and the Bar remains a
formidable theme.
An ordinary citizen would also never
have known that there was such a deep
affinity between pigeons and doing of
justice! But we now authoritatively learn
that among the recent initiatives is a
“pigeon protecting mechanism” installed
“outside Court Nos. 16 and 17 on trial
basis”. Doves proverbially carry a mes-
sage of peace, within which alone justice
and good order remain possible. One
also hopes that Article 51—fundamental
duty of all citizens to develop “compas-
sion for all living beings”—is fully borne
in view.
The Report mentions all the present
justices of the Supreme Court and High
Courts, which covers 2018-2019. The
periodic and piecemeal increase in jud-
ge–strength (from eight Justices to 11,
14, 18, 26, 31 and now to 34), is, of
course welcome. But we still do not
know how far the exertions by the Law
Commission, especially by Justice DA
Desai (Report 120, 1987) and reinforced
by Justice AP Shah (Report 245, 2014)
were guided by any sense of judicial
“manpower” planning.
Pending a full examination of the
comparative figures, it may be said that
the Collegium system has achieved a
five+ years tenure. This compares rather
favourably with the system of executive-
dominated appointment system.
S
pectacularly, the learned chief jus-
tice will have nearly served full
eight years when he lays down the
august office on April 23, 2021. Among
Justices who would have served the
Court for eight plus years by the time
they retire are Justices NV Ramana, Dr
DY Chandrachud, Uday Umesh Lalit
and Surya Kant. Justices with a six-year-
plus tenure are 12, whereas the rest
mainly serve about four years.
Second, of the 46 chief justices of
India (excluding the present CJI), only
Justice YV Chandrachud served as CJI
for more than seven years, while Justice
Bhuvneshwar Prasad Sinha served for
five+ years and Justice AN Ray nearly
for four years. A considerable number
enjoyed nearly a three-year term. The
median term is 1-2 years with some
exasperating terms as short as a few
weeks or months. While the Report has
to let facts speak for themselves, further
institutional development of the judicial
Collegium system must consider the
issue of appointment of justices in such
a way as best promotes stability of lead-
ership by ensuring at least a two-year
term as CJI. One advantage of the fre-
quently proposed extension of the age of
superannuation to 70 is that it provides
just this sort of stable leadership.
Third, there are only three women
judges (Justices Banumathi, Indu
Malhotra and Indira Banerjee). Justice
Banumathi completes her term (on July
19, 2020) with a six-plus year tenure,
probably the longest for a woman justice
(See my comment in the India Legal
issue of November 26, 2018). It is signif-
icant that the Collegium left it to the
leadership of CJI Dipak Misra to make
two further appointments, one from the
Bench and the very first from the Bar
LONG INNINGS
(From below left) Of the 46 CJIs (excluding the
present one) only Justice YV Chandrachud
served for more than seven years; Among SC
judges who will serve for eight-plus years by
the time they retire are Justices NV Ramana,
UU Lalit, Dr DY Chandrachud and Surya Kant
ThereasongivenwhytheGoddessof
Justiceisnotblind-folded“isthatasper
Vedicsutras,thedeityofJusticedoesnot
closeitseyesbutallowsthegracefulrays
fromitseyestoilluminetheadministra-
tionofjustice”.

30 March 30, 2020
(Justice Malhotra).
The Report does not disclose allega-
tions against the then CJI Ranjan Gogoi
in a workplace sexual harassment case;
these were examined, by an administra-
tive committee of the Court comprising
Justices Bobde, Indira Banerjee and
Indu Malhotra. Ordinary citizens would
never know why it closed the matter
because the entire proceedings and the
final decision remain shrouded in
silence and secrecy. The annual report
does not provide information on the
performance of its own committees on
sexual harassment at the workplace nor
does it offer information on whether
deliberations are underway to devise a
procedure that is fair and accountable
for the future. Surely, so crucial a matter
as allegations of sexual harassment in
the court precincts deserves the dignity
of reasoned elaboration and an articu-
late procedure for all is certainly over-
due after four decades of the Mathura
Open Letter written by four law aca-
demics (1979) and especially after the
landmark Visakha ruling (1997).
The Report gives ample details on
arrears, workload and disposals; this is
welcome and it is good news that the
judiciary is now fully alive to this matter.
While this calls for a detailed analysis, we
cannot but help noting that a large num-
ber of cases are awaiting disposal for over
ten years! Most welcome would have
been an indication of the variety of these
matters and of final disposal. And simple
announcements like the creation of sin-
gle-judge benches (to hear transfer mat-
ters and bail cases carrying up to seven
years imprisonment) do not give us rea-
sons why this is a worthy measure and
why it took five years to notify this am-
endment to the Supreme Court Rules!
C
hapter 14 lists 16 “landmark
judgments” which overall give a
sense of the astonishing norma-
tive work thus accomplished. Naming
many of its leading judgments would be
an easy task—for example, related to
sexual minorities, leprosy patients, adul-
tery, right to privacy, experimental intra-
net access, restricted availability of live
streaming of judicial proceedings, bar
girls and the jurisdiction under the
Right to Information Act as applied to
the Supreme Court. But that cannot be
said for all the hits and misses!
True, the criterion for selection of
decisions as “landmark judgments” even
when explicated will also remain a con-
tested terrain. But, for example, Item 13
referring to the case filed by Dr Ashwani
Kumar for certain facilitative and enab-
ling directions for a standalone com-
prehensive legislation against custodial
torture on the basis of a UN Convention
on Torture remains incomprehensible. It
is a very odd “landmark”, given other
feats and feasts of interpretation.
The Court held that it would not be
“appropriate … to enforce its opinion, be
it in the form of a direction or even a
request, for it would clearly undermine
and conflict with the role assigned to
the judiciary under the Constitution”,
although it would continue to deal with
individual cases. How even a judicial
request for significance may violate con-
stitutional judicial role remains a mys-
tery. The oddity lies not in judicial self-
restraint as such but in the celebration
of judicial comity with the executive,
even as regards a core dignity—reinforc-
ing right against torture which some
eminent international lawyers suggest
rightly has already become an aspect of
international customary law.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
My Space/ Supreme Court Annual Report 2018-19/ Prof Upendra Baxi
WOMEN POWER
The Report mentions only three women
judges in the SC—(from left) Justices
Banumathi, Indu Malhotra and Indira Banerjee
Thereportdoesnotprovideinformationon
itsowncommitteesonsexualharassment
attheworkplacenordoesitoffer
informationonwhetherdeliberationsare
underwaytodeviseaprocedurethat’sfair.

NDIA EGALEEL STORIES THAT COUNT
NI
February17, 2020
AQuestion
ofBailAfive-judgeConstitutionbenchtakesafreshlookatpre-convictionbail.Byinsistingon
avoidanceofreflexivereasonsfordenyingbail,theapexcourthasactedprogressively,
saysProfUpendraBaxi
Chhattisgarh: The Scam of all Scams
NO HOLDS BARRED
Don’t miss a single issue of this independent, scintillating new weekly magazine
and get special discounts for yourself and your friends
For advertising & subscription queries
editor@indialegalonline.com
SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS
` ` `
`
`
GAL
ct
ha
NI
February24, 2020
OutingtheCriminalsFlaggingan“alarmingriseinthecriminalisationofpolitics,”theSupremeCourtlays
downstrictinstructionsonmakingpublicdetailsofacandidate’scriminalhistory.
Whatimpactwillithaveonpoliticalpartiesandfutureelections?
Shiv Visvanathan on Shaheen Bagh Mothers
GAL
m””t”t
id
tu
NI
March2, 2020
TheIronFistIncreasingly,Section144isbeenusedbypoliticiansandbureaucratsto
deprivecitizensoftheirfundamentalrights.Nowthecourtshavesteppedin
tostemthemisuse,butisitenough?
Justice Chandrachud:
“Dissent not anti-national”
GAL
an
ou
?
NI
March9, 2020
Judiciary’sRoleina
ChangingWorld
TheInternationalJudicialConference2020wasthefirstofitskindorganisedbytheSupreme
Courttodiscusscontemporarychallengestothejudiciary.Therangeofspeakers,fromthe
chiefjusticeofIndiaandotherseniorjudges,gavevaluableinsightsontohowthecourtsview
theirresponsibilitiesinrapidlychangingtimes
Coronavirus:
How prepared is India?
GAL
eee
o
or
nge
so
es
NI
March16, 2020
LawandDisorderCrucialmattersthatcameupintheSupremeCourtandDelhiHighCourtindicateacrisisinIndia’s
basicgovernance.TheCrPCandPoliceActsclearlylaydownthatitisthejobofDMsandSDMsto
maintainlawandorder,buttheirrolehasbeentakenoverbythepolicewithquestionableresults
Fast Track Courts:
New scheme
GAL
ootturtt
sthh
ce
NDIA EGALEL STORIES THAT COUNT
NI
March23, 2020
JusticeVenkatachaliah,whoservedaschiefjusticeofIndia,isoneofIndia’smostrespectedjurists.Anavid
championofhumanvaluesandrights,hespoketo RAJSHRIRAI,MD,INDIALEGALonthejudiciary,religion,
Ayodhya,upbringingofchildrenandwhytheSupremeCourtshouldbetrustedtodotherightthing
JusticeVenkatachaliah
‘‘KeepFaithin
theJudiciary’’
Coronavirus:
India’s opportunity
Exclusive Interview
DIIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EEEEEE

32 March 30, 2020
As in all global crises and pandemics, the
urge to find scapegoats and apportion
blame leads to bizarre, unsubstantiated
conspiracy theories. That is exactly what is
happening in the wake of the coronavirus
outbreak as China and the US blame
each other.
The spokesman at the Chinese Ministry
of Foreign Affairs, Lijian Zhao (above ri-
ght), has claimed that “it might be the US
Army who brought the epidemic to Wu-
han…. US owes us an explanation!” He
then quoted a report from the Center for
Research on Globalization, a Canadian-
based outfit that promotes conspiracy theo-
ries that generally align with Russian prop-
aganda, which said that the virus originated
in the US.
The US, led by President Donald
Trump, directly blames China while conser-
vative politicians and pundits claim that the
Coronavirus is a bio-weapon which may
have been developed in a scientific labora-
tory located in Wuhan.
Republican Senator Tom Cotton has
repeatedly suggested in Congress and on
talk shows that the virus could have come
from the Wuhan lab. President Trump
repeatedly calls Covid-19 “the Chinese
virus,” a phrase echoed by Secretary of State
Mike Pompeo. The conspiracy theories have
been debunked by respected journal Nature
Medicine, which revealed that scientists,
using public genome sequence data, have
confirmed that the virus was a result of
“natural processes,” subsequently backed by
other credible scientists, communicable dis-
ease experts and specialised publications.
International Briefs
The Conspiracy Clash
There are conflicting
reports about exactly
how long the coronavirus
can survive on different
surfaces. In a new
research paper published
in the New England
Journal of Medicine, sci-
entists now say it can stay
alive on plastic and stain-
less steel surfaces for up
to three days. As far as its
longevity in tiny particles
or droplets in the air rel-
eased by infected people is
concerned, it only lasts for
three hours.
The study, funded by
the US National Institutes
of Health, found that the
stability of this virus is
similar to the Severe Acu-
te Respiratory Syndrome
(SARS) epidemic in
Lasting Effects
UNI

Till now, the longest sch-
eduled passenger service
flight was flown by Singapore
Airlines between Singapore
and Newark, a distance of
9,534 miles. Quantas set its
own record flight between
the UK, the US and Austra-
lia, taking more than 19 ho-
urs and covering over 10,000
miles, but this was a test
flight with no passengers.
Now, thanks to the coron-
avirus outbreak, one side eff-
ect has been the setting of a
new world aviation record for
the longest ever scheduled
passenger flight.
On March 14, French air-
line Air Tahiti Nui flew 9,765
miles from Papeete, in Tahiti,
French Polynesia, to Paris'
Charles de Gaulle airport.
The flight, which took
approximately 16 hours, is
now the world’s longest com-
mercial flight in terms of dis-
tance travelled.
The flight, however, was
not a scheduled one—its nor-
mal route includes a stopover
at Los Angeles International
Airport where some passen-
gers disembark.
However, thanks to travel
restrictions by the US gov-
ernment, passengers were
not allowed to deplane and
the flight was forced to fly
on, arriving in Paris early
morning on March 15, just
short of 16 hours later.
After actor Tom Hanks
and his wife posted
inspirational messages on
being released from a Syd-
ney hospital, having recov-
ered from the coronavirus, a
host of other celebrities who
have not caught the virus
but are restricted to their
homes have been putting up
messages or live streaming
songs and skits just to keep
spirits up and use their tal-
ents for the greater good.
They include actor
Anthony Hopkins, who has
opted to enliven his self-
imposed quarantine by live
streaming himself playing
the piano while his cat looks
on unappreciatively. Another
famous star, Lady Judi
Dench, 85, posted a video
recording of herself wearing
a bizarre looking hat with a
dog’s face, and saying we
need to have a few laughs in
such times. She was followed
by comedian Mel Brooks
who appeared in his son’s
tweet about the importance
of social distancing. Then
there was the educational
video posted by singer/actor
Elaine Paige which showed
her wearing jokey rubber
gloves while cleaning phones
and bank cards.
Pop stars have joined in
the move to uplift spirits by
posting videos of themselves
singing while under house
quarantine, and include
John Legend singing his hit
Everybody Knows, and
Coldplay’s Chris Martin in
his home studio, who took to
Instagram for a 30-minute
live stream playing some of
the band’s hits in what he
called a solidarity session in
partnership with the World
Health Organisation (WHO)
and Global Citizen.
Celebrities to the Fore
2002. The latest findings
show that the new virus was
viable up to 72 hours after
being placed on stainless
steel and plastic, up to four
hours after being placed on
copper, and 24 hours after
being put on cardboard.
These findings are similar to
experiments done after the
SARS outbreak.
However, a separate
study in The Journal of
Hospital Infection found
that human coronaviruses
have been found to persist
on surfaces—including
metal, glass or plastic—for
as long as nine days if the
surface is not disinfected.
The SARS virus bears the
closest resemblance in
terms of infection spread to
the novel coronavirus. The
journals, however, added
that further studies were
ongoing and the findings
could be re-evaluated.
The Longest Flight
In Poland, people panicked
after a wave of rumours
surfaced about the govern-
ment cutting off transporta-
tion in cities and a message,
recorded by a man who
claimed to have close ties to
political decision-makers,
which said the president
would introduce an “emer-
gency state” and that people
wouldn’t be able to leave their
houses for three weeks. It
turned out to be fake but
such panic-inducing fake
news and rumours have hit
countries around
the world.
In France, an audio mes-
sage from a woman claiming
sources in high places, said
the whole country would
soon be in full quarantine.
On Facebook, a message that
went viral claimed to be from
a bulletin board in Stanford
University, an Ivy League col-
lege with a recognised scien-
tific temper. It advised that
holding your breath for 10
seconds could show whether
you were infected or not, and
other seemingly credible ad-
vice. It turned out to be fake.
Irish Prime Minister Leo
Varadkar reached out to citi-
zens on social media: “I am
urging everyone to please
stop sharing unverified info
on WhatsApp groups. These
messages are scaring and
confusing people and causing
real damage.” WhatsApp has
become the major source for
misinformation as it is less
regulated and allows people
to share personal messages
with large groups.
The Fake News Virus

34 March 30, 2020
Special
Supplement
The leitmotif of India Legal
magazine has been its focus
on subjects of contemporary
legal relevance. We are now
taking that concept a stage
further by introducing a
Special Supplement on issues
and topics that deserve more
rigorous and in-depth
analysis, written and
researched by an expert on
the subject. The first in the
series appears in this issue and
concerns citizenship, the issue that
has caused much controversy and
even violence. The author,
Dr Abhishek Atrey, traces the
history of citizenship and its rights
and privileges. In particular, the
author examines the various
aspects of citizenship in India, its
legal and constitutional
interpretation, and the events that
have led to the controversy
surrounding the Citizenship
(Amendment) Act and the National
Register of Citizens.
The Idea of
Citizenship
Anthony Lawrence

FROMancient times, citizenship remained a concept
that was sovereign in nature. Even in the Vedas and the
Upanishads, there were several chapters of duties of the
Raja (King) towards his praja (subjects or citizens). To
grant or refuse citizenship is the prerogative of the sover-
eign, which cannot be tested on any scale of equality, arbi-
trariness or reasonableness. According to Kautilya, it was
the king's duty to protect the subjects from both internal
and external insecurities. Amendments to the Citizenship
Act in 2019 have been brought in to protect Indian citizens
from illegal migrants and the threats arising out of their
uncontrolled invasion into the country. Citizens are a
part of a sovereign state and the state cannot be called
a state until it is sovereign and the sovereign has the right
to command.
Citizenship is the most privileged form of nationality. This
broader term denotes various relations between an individ-
ual and the State that do not necessarily confer political
rights but imply other privileges, particularly protection
abroad. It is the term used in international law to denote all
persons whom a state is entitled to protect. Nationality also
serves to denote the relationship to a state of entities other
than individuals; corporations, ships and aircraft, for
example, possess a nationality.
The concept of citizenship first arose in towns and city-
states of ancient Greece, where it generally applied to prop-
erty owners but not to women, slaves, or the poorer mem-
bers of the community. A citizen in a Greek city-state was
entitled to vote and was liable to taxation and military serv-
ice. The Romans first used citizenship as a device to distin-
guish the residents of the city of Rome from those
whose territories Rome had conquered and incorporated.
As their empire continued to grow, the Romans granted
citizenship to their allies throughout Italy proper and then
to people in other Roman provinces, until in AD 212, citi-
zenship was extended to all free inhabitants of the empire.
Roman citizenship conferred important legal privileges
within the empire.
The concept of national citizenship virtually disappeared in
Europe during the Middle Ages, replaced as it was by a sys-
tem of feudal rights and obligations. In the late Middle
Ages and the Renaissance, the holding of citizenship in
various cities and towns of Italy and Germany became a
guarantee of immunity for merchants and other privileged
persons from the claims and prerogatives of feudal over-
lords. Modern concepts of citizenship crystallized in the
18th century during the American and French Revolutions,
when the term citizen came to suggest the possession of
certain liberties in the face of the coercive powers of abso-
lutist monarchs.
In England, the term citizen originally referred to member-
ship of a borough or local municipal corporation, while the
word subject was used to emphasise the individual’s subor-
dinate position relative to the monarch or state. The word
subject is still used in preference to citizen in British com-
mon-law usage and nationality legislation, but the two
terms are virtually equivalent as British constitutional mo-
narchy is now a ceremonial one that has lost its former poli-
tical powers over its subjects.
Citizenship in a democracy (a) gives membership status to
individuals within a political unit; (b) confers an identity
on individuals; (c) constitutes a set of values, usually inter-
preted as a commitment to the common good of a particu-
lar political unit; (d) involves practising a degree of partic-
ipation in the process of political life; (e) implies gaining
and using knowledge and understanding of laws, docu-
ments, structures, and processes of governance.
The legal status of citizenship includes the entitlement of
civil rights and protection by the rule of law in the corre-
sponding political community or polity. It is, by all intents
and purposes, a membership, with benefits, values and
entitlements. The bestowal of rights, obligations and legis-
lation revolves around this dimension of citizenship. Citi-
zenship is a source of identity, the ties of belonging to a par-
ticular community and in a general sense related to our
present political paradigm which is centred around the
nation state. The rights a citizen enjoys will partly define
the range of available political activities, while explaining
how citizenship can be a source of identity by strengthen-
ing a person’s sense of self-respect.
Citizenship Under the Indian Constitution
Citizenship is defined in Articles 5 to 11 of our Constitution.
Article 5 says that at the commencement of this Consti-
tution, every person who is residing in the territory of India
and who is born in India or either of his parents is born in
India or who has been ordinarily resident in the territory of
India for not less than five years immediately before com-
mencement of the Constitution shall be a citizen of India. It
means that any person who is born in India or any of his
parents is born in India is a citizen of India by birth and his
citizenship is guaranteed by no other document except the
Constitution which is the supreme law of the land.
Therefore, the fear of any person who is born in India
or either of his parents is born in India that he can be
deprived of his citizenship by any act or rule is baseless. It
is devoid of merit because any Act of Parliament or any
state or any rules made thereunder cannot supersede the
Indian Constitution.
Article 6 of the Constitution provides citizenship to per-
THE FEAR OF ANY PERSON,
WHO IS BORN IN INDIA OR
EITHER OF HIS PARENTS IS
BORN IN INDIA, THAT HE
CAN BE DEPRIVED OF HIS
CITIZENSHIP BY ANY ACT OR
RULE IS BASELESS.

36 March 30, 2020
sons who do not fulfil the criteria of Article 5 but migrated
to India from Pakistan at the time of division. Article 6 pro-
vides that any such person who migrated to India from
Pakistan, who or either of his parents or either of his grand-
parents is born in India as defined in the Government of
India Act, 1935 and (i) if he migrated before July 19, 1948,
he has been ordinarily resident in India since the date of his
migration, or if such a person migrated to India after July
19, 1948 and he has been registered as a citizen of India by
an officer appointed by the central government on an appli-
cation made by him before commencement of this
Constitution. However, the only condition for such an app-
lication is that the person concerned must be residing in
India at least six months before he applies.
Article 7 provides that notwithstanding anything in Arti-
cles 5 and 6, a person who after March 1, 1947, migrated to
Pakistan, shall not be deemed a citizen of India provided
that after migration, he returned to India under a permit
for resettlement or permanent return issued by or under
the authority of any law and shall also be deemed to be so
migrated to India under Article 6(b) after July 19, 1948.
With the intention to restore and recognise the rights of cit-
izenship of the persons who are residing out of India, our
Constitution under Article 8 provides that if any person
who or either of whose parents or any of his grandparents
was born in undivided India and who is residing in any
country outside India shall be deemed to be a citizen of
India, if he is so registered by the diplomatic or consular
representative of India in that country. As such, Article 8
provides an opportunity to the persons of Indian origin
who are residing outside India if any of his parents or
grandparents are born in India to apply to an Indian con-
sulate and take up citizenship of India if he so chooses. No
doubt in that condition he has to leave the citizenship of the
country in which he is residing for the basic reason that a
person cannot hold citizenship of two countries.
The same principle is also there in Article 9 which says that
if a person voluntarily acquired citizenship of any other
country, he shall not be deemed to be a citizen of India by
virtue of Article 5 or 6 or 8. Article 10 provides continuance
of the right of citizenship subject to any law made by Parlia-
ment. Article 11 read with entry 17 of the Central List of the
Seventh Schedule of the Constitution says that it is only
Parliament which can make a law to regulate citizenship.
India is a federal state and there is no concept of dual citi-
zenship in India. Therefore, states have no role to play in
granting or refusing citizenship to any person. Citizenship
is a subject which squarely falls in the domain of Par-
liament only.
Nehru-Liaquat Agreement
In order to protect the rights of minorities in both India
and Pakistan, an agreement was entered into between both
the governments on 8.4.1950, which was commonly known
as the Nehru-Liaquat agreement.
This agreement was done after incidents of looting,
destruction of property, killing, kidnapping and rape in
both countries after their division. In order to bring harmo-
ny among the people of both minorities and majority com-
munities and to punish the offenders and to protect per-
SIGNIFICANT TREATY The Nehru-Liaquat pact was signed on April 8, 1950, to protect the rights of minorities in India and Pakistan
Special
Supplement

sonal and property rights of the migrating people, it was
decided by both the governments that they would ensure to
the minorities throughout their territories complete equal-
ity of citizenship, irrespective of religion, a full sense of
security in respect of life, culture, property and personal
honour, freedom of movement within each country and
freedom of occupation, speech and worship subject to law
and morality. Minorities shall have equal opportunity along
with the majority community to participate in the public
life of their country, to hold political or other office and to
serve in their country’s civil and armed forces.
Both governments declared these rights to be fundamental
and undertook to enforce them effectively. It was the policy
of both the governments that the enjoyment of these dem-
ocratic rights shall be assured to all their nationals without
distinction. Both governments emphasised that the alle-
giance and loyalty of the minorities is to the state of which
they are citizens and it is to the government of their own
state that they should look for
redress of their grievances.
By this agreement, it was also agreed
by the governments of both the
countries that they shall ensure free-
dom of movement and protection in
transit, rights of their moveable and
immoveable properties, to restore
their immoveable properties if they
return till 31.12.1950.
Especially in East Bengal, West Bengal, Assam and
Tripura, it was decided to establish Special Courts to
restore normal life and to punish the offenders, to restore
looted property and abducted women, not to recognise
forced conversions, to appoint a Commission of Inquiry
with a High Court judge as its head at once, to enquire into
causes and extent of disturbances and to appoint Minority
Commissions to look into the grievances and welfare
of minorities.
Citizenship and Rights of Minorities in
Afghanistan, Pakistan and Bangladesh
The three neighbouring countries of India—Afghanistan,
Pakistan and Bangladesh—are Islamic countries by
their Constitutions. Still, in the Constitutions or in the
Citizenship Acts of these countries, there is no apparent
discrimination against the minorities in getting citizen-
ship, right to vote, right to profess religion or to enjoy
other rights equally with that of the majority. Seats are
reserved for non-Muslims in their National and Provincial
Assemblies. But by comparing the census data of these
countries and media reports, there is a steep depletion in
the percentage of non-Muslims of these countries in the
last few decades due to atrocities and religious persecution.
However, the claim of the governments of these countries
is contrary.
Citizenship in India Under Citizenship Act, 1955
While exercising the powers given under Article 11 read
with Entry 17 of the Central List of the Constitution, the
Indian Parliament enacted the Citizenship Act, 1955, which
received the assent of the President on December 30, 1955
and came into force since then. Since its inception, the
Citizenship Act has been amended 10 times—firstly in 1957
w.e.f. 27.12.1957, then in 1960 w.e.f. 26.12.1960, then in
1985 w.e.f. 7.12.1985, again in 1986 w.e.f. 15.5.1986, then in
1987 w.e.f. 1.7.1987, then in 1992 w.e.f. 10.12.1992, then in
2004 w.e.f. 3.12.2004, then in 2005 w.e.f. 28.6.2005, then
in 2015 w.e.f. 6.1.2015 and now in 2019 w.e.f. 12.12.2019.
Before coming to the controversial Citizenship (Amend-
ment) Act of 2019, we have to first understand the provi-
sions of the Citizenship Act, 1955 and what amendments
were done in 2019. The Citizenship Act is a very small Act
comprising of only 19 provisions. Section 2 of this Act is a
definition clause. In subsection (a), the government of
India is defined as the central as well
as the state government. In subsec-
tion (b), an “illegal migrant” is
defined, which is very important to
understand in the present atmos-
phere of controversy. Only two cate-
gories of persons were held as illegal
migrants—any foreigner who enters
India without a valid passport or
any other travel document and
those who enter India with a valid passport or any other
travel document but remain in India beyond the permitted
period of time. In the present Amendment Act, 2019, a pro-
viso was added to the definition of illegal migrants. By
implication, it means any person belonging to the Hindu,
Sikh, Buddhist, Jain, Parsi or Christian community from
Afghanistan, Bangladesh or Pakistan who entered India on
or before December 31, 2014 and who has been exempted
by the central government under Section 3 of the Passport
Entry Into India Act, 1920 or from the application of the
provisions of the Foreigners Act, 1946 or any rule made
thereunder, shall not be treated as an illegal migrant for
this purpose. Therefore, persons of these six communities
from these three countries shall not be treated as illegal
migrants if they fulfil two criteria—firstly they entered
India before December 31, 2014 and on an application,
they are exempted by the central government under the
Passport (Entry into India) Act, 1920 or Foreigners Act,
1946. Therefore, by virtue of this amendment, these per-
sons shall not automatically become citizens of India but
first they have to prove they entered into India before
December 31, 2014 and take permission from the central
government.
According to the Citizenship Act, the citizenship of India
can be provided in four ways—citizenship by birth, by
descent, by registration and by naturalisation.
CITIZENSHIP OF INDIA
CAN BE PROVIDED IN
FOUR WAYS—BY BIRTH,
BY DESCENT, BY
REGISTRATION AND BY
NATURALISATION.

38 March 30, 2020
Citizenship by Birth
According to Section 3, every person who is born in India
after January 26, 1950, but before July 1, 1987 or is born
after July 1, 1987 but before December 3, 2004, and either
of his parents is a citizen of India at the time of his birth or
he was born after December 3, 2004 and both his parents
are citizens of India or one of his parents is a citizen of
India and the other is not an illegal migrant at the time of
his birth, shall be deemed to be a citizen of India by birth.
However the validity of Section 3 (1) (a) and (b) are under
challenge before the Supreme Court and has been referred
to a Constitution Bench.
This Section was amended firstly in 1987 and then in 2003.
Subsection (2) of this section further provides that a person
shall not be deemed to be a citizen of India by virtue of this
Act as a result of his birth if at the time of his birth, any of
his parents possesses such immunity from suits or legal
process as is accorded to invite to an envoy of foreign sov-
ereign power accredited to the President of India and he or
she is not a citizen of India or any of his parents is an enemy
alien and the birth occurs in a place
then under occupation by the enemy.
Therefore, if we carefully look at this
section, it appears that the Parliament
tried to control conferment of citizen-
ship by birth time and again as and
when the Indian government faced
new problems. By the first amend-
ment in this section in 1987, the gov-
ernment prescribed that a person who
took birth in India after January 26,
1950 but before July 1, 1987 is a citizen of India irrespective
of any condition, whereas by the amendment of 1987, a
condition was imposed on conferring citizenship by birth—
if a person took birth in India after July 1, 1987, he can be
conferred citizenship by birth only in case any of his par-
ents is a citizen of India and this exemption was provided
only up to 2003 and was confined by the Amendment Act,
2004. This Amendment provided that if a person takes
birth in India after commencement of the Amendment Act,
2004, i.e. 3.12.2004, he can be conferred citizenship by
birth only if both his parents are citizens of India or one of
his parents is a citizen of India and the other is not an ille-
gal migrant at the time of his birth.
Citizenship by Descent
Section 4 of the Citizenship Act prescribes citizenship by
descent. According to it, a person who is born outside India
is a citizen of India by descent (i) if he is born after January
26, 1950 but before December 10, 1992 and his father is a
citizen of India at the time of his birth and if he is born after
December 10, 1992, either of his parents is a citizen of India
at the time of his birth. The proviso of the Section puts cer-
tain conditions on citizenship by descent. The proviso says
that if the father (or either of his parents if born after
10.12.1992) of such person is a citizen by descent, that per-
son shall not be a citizen of India unless his birth is regis-
tered at an Indian consulate or his father is in the service of
the Government of India. Subsection (1) of Section 4 fur-
ther prescribes that no such birth shall be registered unless
his parents declare that the minor does not hold the pass-
port of any other country. Subsection (3) of Section 4 also
prescribes that if a person is born outside undivided India
and was a citizen of India at the commencement of the
Constitution, he shall be deemed to be a citizen of India by
descent only.
Citizenship by Registration
Section 5 of the Citizenship Act prescribes conferment of
citizenship by registration. Under this Section, the central
government on an application made in this behalf by any
person who is not an illegal migrant, may grant citizenship
if he belongs to any of the following categories:
A person of Indian origin who is ordinarily resident in
India for seven years before making
such an application.
A person of Indian origin who is or-
dinarily a resident in any country out-
side undivided India.
A person who is married to a citizen
of India and is ordinarily a resident of
India for seven years before making
such an application.
Minor children of citizens of India.
A person of full age and capacity
whose parents registered as citizens of India under Section
6 (1) (a).
A person of full age and capacity who, or either of his par-
ents, was earlier a citizen of independent India and is ordi-
narily a resident of India for 12 months immediately before
application.
A person of full age and capacity, who has been registered
as an Overseas Citizen of India Card Holder (OCI) for five
years and who is ordinarily a resident of India for 12
months before making such an application.
For the purpose of the first and third category, a person
shall be deemed to be ordinarily resident in India if he is
residing here for a period of 12 months immediately before
making an application and who has resided for not less
than six years during the last eight years preceeding the
aforesaid period of 12 months.
For the purpose of this subsection, a person shall be
deemed to be of Indian origin if he or either of his parents
was born in undivided India or in such other territory
which became part of India after August 15, 1947.
Subsection (3) of Section 5 prescribes that no person who
has renounced or has been deprived of his Indian citizen-
ship or whose citizenship has been terminated shall be reg-
THE CITIZENSHIP
(AMENDMENT) ACT,
2019 CHANGED NOTH-
ING IN THE POWERS
OF THE CENTRE TO
GRANT OR TAKE
AWAY CITIZENSHIP.
Special
Supplement

India legal 30 march 2020

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