How Healthy is India’s Constitution? On Constitution Day, an analysis of the remarkable document created by our founding fathers and how it has evolved to keep pace with contemporary times Prof NR Madhava Menon, father of modern legal education in India; Prof Ranbir Singh, Vice-Chancellor, National Law University, Delhi and PDT Achary, former Secretary General of the Lok Sabha analyse different aspects of the Constitution

1. NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
December3, 2018
Government versus
RBI: Uneasy truce
CBI Crisis: Chief
justice loses his cool
How Healthy is
India’s Constitution?
OnConstitutionDay,ananalysisoftheremarkabledocumentcreatedbyourfounding
fathersandhowithasevolvedtokeeppacewithcontemporarytimes
Prof NR Madhava Menon, fatherofmodernlegaleducationinIndia; Prof Ranbir Singh, Vice-Chancellor,NationalLawUniversity,
Delhi and PDT Achary, formerSecretaryGeneraloftheLokSabhaanalysedifferentaspectsoftheConstitution

3. T is not easy to fathom as an outsider whe-
ther the recent outburst of indignation by
Chief Justice Ranjan Gogoi at the publication
of answers to questions posed by the Central
Vigilance Commission to exiled CBI Chief
Alok Verma was directed at an irresponsible press
or at some deep-state vested interests trying to
muddle a judicial process.
No matter what the motivation behind the
story coming out, there is little doubt that India’s
judiciary—with the Supreme Court leading from
the front—has for the most part considered the
Press the Fourth Pillar of Democracy. And it is for
this reason that on January 12, 2018, Justices J
Chelameswar, Ranjan Gogoi, MB Lokur and
Kurian Joseph had turned to the media as a plat-
form from which to raise a litany of allegations
against then Chief Justice of India Dipak Misra.
They had complained that the situation in the
top court was “not in order” and many “less than
desirable” things had taken place which had put
India’s “democracy at stake”. The judges’ rebellion
provoked nationwide debate as well as strong
criticism from stalwarts like former Chief Justice
TS Thakur who called the press conference a “dis-
turbing” event because it afforded the media and
politicians an opportunity to discuss matters
which “ought to have been addressed and solved
within the confines of the Supreme Court”.
The controversy notwithstanding, major deci-
sions taken by the courts over the years have
buttressed the Indian Constitution’s emphasis on
the free press as a powerful pillar of the edifice
of deep-seated civil liberties. Freedom of speech
is one of the six fundamental rights conferred to
the citizens of India under Part III of the
Constitution. It is one of the most important
aspects in the hierarchy of personal liberties pro-
vided under Article 19 to Article 22 of the
Indian Constitution.
Article 19(1)(a) states that all citizens shall
have the right to freedom of speech and expres-
sion. But this right is subject to limitations im-
posed under Article 19(2) which empowers the
State to put “reasonable” restriction on various
grounds, namely, security of the State, friendly
relations with foreign States, public order, decen-
cy and morality, contempt of court, defamation,
incitement of offence and integrity and sovereign-
ty of India.
A major judicial decision which emphasised
the primacy of free speech embodied in Indian
Express Newspapers vs Union of India (1985),
reiterated the Court’s language in Harijai Singh
AIR 1997 SC 73: “It is, therefore, the primary
duty of courts to uphold the freedom of press and
invalidate all laws or administrative actions
which interfere with it contrary to the constitu-
tional mandate.”
And at a time when India’s institutions seem
under organised attack from an insecure and self-
serving political establishment, the recent words
of Chief Justice Ranjan Gogoi came as a breath of
invigorating breeze: “Independent journalists and
sometimes noisy judges are democracy's first line
of defence.” In that same speech Justice Gogoi
favoured a more pro-active judiciary.
But last week sprang more than a few surpris-
es. When the Supreme Court learned of the Ver-
ma deposition before the CVC from the newspa-
pers even before the official report had been
handed over in a sealed envelope to the Court, as
it had ordered, Justice Gogoi’s reaction in open
court was swift and harsh.
Thundered the chief justice: “What is this? We
will not hear you today. None of you deserve a
hearing.” Senior advocate Fali Nariman, repre-
senting Verma, emphasised that stories were on
Alok Verma’s responses to questions the CVC put
to him. These were not in a sealed cover and were
not meant for the Supreme Court. But the Court
remained unmoved. It refused to take on record
the reason for adjournment of the hearing. “For
reasons which the court is not inclined to record",
the hearing was deferred to the end of the month.
The Verma “leak” was not the only matter per-
taining to the press that annoyed the chief justice.
Almost simultaneously, another story appeared
THE CHIEF JUSTICE
AND THE MESSENGER Inderjit Badhwar
Letter from the Editor
I
Thecorridorsofthe
SCarestillabuzz
witharguments
aboutwhythe
CVC’sreportshould
havebeendelivered
undersealedcover
andwhythe
removalofAlok
Vermawithout
recoursetodue
processcouldnot
havebeentakenup
separatelyfromthe
chargesandcounter
chargesofcorrup-
tionwithintheCBI.
| INDIA LEGAL | December 3, 2018 3

4. featuring CBI Deputy Inspector General Manish
Kumar Sinha who had been probing corruption
charges involving CBI special director Rakesh
Asthana and who had moved the apex court chal-
lenging his transfer to Nagpur. In his plea to the
Court, he alleged interference by National Secu-
rity Adviser (NSA) Ajit Doval.
“The transfer was arbitrary, motivated and
mala fide, and was made solely with the purpose
and intent to victimise the officer as the investiga-
tion revealed cogent evidence against certain
powerful persons,” Sinha said. The Supreme
Court, however, denied an urgent hearing into
this case.
Gogoi expressed further displeasure over this
matter also having appeared in the press: “Here is
a litigant who mentions it before us and then
goes out to distribute the petition to everyone…
This court is not a platform for people to come
and express whatever they want... This is a place
where people come for adjudication of their
legal rights. This is not a platform and we will set
it right.”
The corridors of the Supreme Court are still
abuzz with controversial arguments about why
the CVC’s report should have been delivered
under sealed cover (were national security secrets
involved), and why the “service related matter”
regarding the summary removal of Verma with-
out recourse to due process could not have been
taken up separately from the charges and counter
charges of corruption within the CBI. Nariman
may have done his best to control the damage
and smoothen the Court’s ruffled feathers, but his
inexplicable plea that the editors of the online
portal which broke the stories should be hauled
up by the Court and made to explain their con-
duct simply shifted the debate from the real issue.
That issue is applicability of the rule of law and
administrative propriety of dealing with wide-
spread allegations of corruption within the CBI to
that of the freedom of journalists to report and
the media to publish.
T
his is ironical in view of Justice Gogoi’s
own demonstrated advocacy of a free and
fearless press. Below are excerpts from the
stirring speech he made a few months ago at the
third Ramnath Goenka Lecture in New Delhi:
Not too long back, I had read an interesting
news article talking about the surprising surge—
which is not so surprising, all things considered—
in the sale of George Orwell’s 1984 in the United
States. That piqued my interest in revisiting the
classic. And, for some reason, I want to recollect a
thought from it today. “Freedom is the freedom to
say that two plus two make four. If that is grant-
ed, all else follows.”
(Ramnath Goenka) could call Spade a Spade.
Someone who could speak truth to power. Even if
4 December 3, 2018
Letter from the Editor
RIGHTEOUS INDIGNATION
Chief Justice of India Ranjan Gogoi; CBI director
Alok Verma
TheVerma“leak”was
nottheonlymatter
pertainingtothe
pressthatannoyed
CJIRanjan
Gogoi.Almost
simultaneously,
anotherstory
appearedfeaturing
CBIDIGManish
KumarSinhawhohad
beenprobing
corruptioncharges
involvingCBIspecial
directorRakesh
Asthanaandhad
movedtheapexcourt
challenginghistrans-
fertoNagpur.He
allegedinterference
byNSAAjitDoval.
Anil Shakya
Photo Courtesy: Facebook

5. it came at a cost. To be ready to break, but not
bend could be called obstinacy by some, and
determination by others. Is it a matter of perspec-
tive? I do not know. And, I cannot say for others
but as far as I am concerned, I only feel that we
need to ask ourselves some questions: Where is
the Goenka in us; his ideals; his values?
The 2015 ruling in Shreya Singhal v. Union of
India …improved upon the jurisprudence on the
independence of the Press to attain and promote
the Constitutional precept of plurality of thought,
diversity of opinion and the ethos of democracy
in the tech-age and in the context of online
speech. The Vision of Justice was indeed attained
in the courtroom …But has it translated into real-
ity? Has the success of these sterling verdicts
reached the ground? I will let the facts speak for
themselves. On the ground, it is a descent into
chaos. And it is worrisome on all counts when
you sue the messenger or when you shoot the
messenger, or when the messenger itself
declines to deliver the message because of the
fear psychosis.
It is said… that, “…independent judges and
noisy journalists are democracy’s first line of
defence… It needs defenders”. I agree but will
only suggest a slight modification in today’s con-
text—not only independent judges and noisy
journalists, but even independent journalists and
sometimes noisy judges.
The judiciary must certainly be more pro-
active, more on the front foot. This is what I
would call as redefining its role as an institution
in the matters of enforcement and efficacy of the
spirit of its diktats, of course, subject to constitu-
tional morality (= separation of powers).
Alexander Hamilton, while contemplating the
U.S. Constitution said that the judiciary is the
weakest of three branches because it neither has
force of the Executive nor the will of the Legis-
lature, but only judgment. This, and which I
agree with absolutely, he said, was the “simple
view of the matter”. The complex view is this. And
which he was wise enough to warn about over
two centuries ago. He had said that while civil
liberties will have nothing to fear from the judici-
ary alone, they will have everything to fear from
the union of the judiciary with either of the other
two branches.
In all humility, being an Orwell admirer my-
self, I would like to add two bits to Justice Gogoi’s
words of wisdom. One of my favourite quotes
from Orwell: “If liberty means anything at all, it
means the right to tell people what they do not
want to hear.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | December 3, 2018 5
Thereislittledoubt
thatIndia’sjudiciary
hasforthemostpart
consideredthePress
theFourthPillarof
Democracy.Anditis
forthisreasonthat
onJanuary12,2018,
(fromleft)Justices
KurianJoseph,J
Chelameswar,Ranjan
GogoiandMBLokur
hadturnedtothe
mediaasaplatform
fromwhichtoraise
allegationsagainst
thenCJIDipakMisra.
UNI

6. ContentsVOLUME XII ISSUE3
DECEMBER3,2018
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6 December 3, 2018
The Constitution’s Journey
With its ingenuous interpretations, the Supreme Court has breathed life into a document
which would have otherwise meant little for the ordinary Indian. On Constitution Day,
Prof NR Madhava Menon, Prof Ranbir Singh and PDT Achary analyze
various aspects of this remarkable corpus of laws and how it has evolved over time
LEAD
14
Mixed Messages
Chief Justice Gogoi’s outburst over “leaked” details in CBI director Alok Verma’s case has raised
a controversy, given his earlier assertion of the need for “noisy journalists” to protect democracy
SUPREMECOURT
22
Capital Shamed
The Delhi High Court has issued notice to the centre and the state government on a petition
seeking details of steps being taken to address the issue of starvation deaths of children
COURTS
24

7. Friend in the
Indian Ocean
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
| INDIA LEGAL | December 3, 2018 7
Cover Design: ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
Delhi Durbar ...................12
International Briefs..........33
Media Watch ..................37
Satire ..............................50
With the Maldives electing
Ibrahim Mohamed Solih president,
old ties stand restored and India
again has a chance of being an
influence in the region
48
Federalism versus Graft Fight
Though Andhra Chief Minister Chandrababu Naidu has barred the CBI for political
reasons, it could spell the death knell for anti-corruption efforts
40
More Haste,
Less Speed
Infrastructure is hardly in place,
so the Kerala government’s
hurry to implement the apex
court order on Sabarimala
temple is misguided
38
Moment of Reckoning 44
Pakistan is in a quandary after the country’s top court asked the government
to define Gilgit-Baltistan’s legal and constitutional status
Risky
Business
The Delhi High Court issues
notices to the centre and the Drug
Controller General of India on a
petition seeking to prohibit the
fraudulent practice of recycling
expired medicines
26
Big Brother’s Gaze
A circular seeking details of spouses’ “gainful employment” may
cause friction between the higher and lower judiciaries in the capital
28
But is there a crisis in the offing, seeing as not a single paisa has
been added to the top bank’s reserves in the last four years?
30
STATES
GLOBALTRENDS
As the Brexit deadline draws close,
the prime minister is under attack for
a draft deal that has left her country
without a voice in the European Union
Theresa’s
Burden 42
RBI Forces a Draw
ECONOMY
Coming down hard on Volkswagen for flouting emission norms,
the green tribunal has asked it to shell out `100 crore
34NGT Fells Auto Giant
ENVIRONMENT
VW’s trick of placing a secret code in its diesel vehicle software to
signal when the car is being tested has sullied its reputation
36Das Scandal

8. 8 December 3, 2018
“
RINGSIDE
“Democracy and
rule of law are
under attack.
Friends, we have
to fight this on-
slaught on our
institutions; other-
wise history shall
never forgive us.’’
—Former Prime
Minister Manmo-
han Singh, while
addressing the
media at Indore,
Madhya Pradesh
“If I am involved in
any kind of anti-
national activities
then Modiji, Raj-
nathji & Fadnavisji
can take action
against me.”
—Senior Congress
leader Digvijaya
Singh after his name
cropped up in the
Elgaar Parishad case
“You HAVE claimed
my party has been
acting at the behest of
Pakistan....Place the
evidence of your alle-
gation of NC boycott
of ULB polls at Pak
behest in public do-
main. It’s an open
challenge to you....”
—Former J&K CM
Omar Abdullah, after
a comment by BJP’s
Ram Madhav that
PDP and NC were
asked by Pakistan to
form the govt in J&K
“Our late PM Pan-
dit Jawaharlal Neh-
ru, in the last three
years of his tenure,
was ill. He...could
not function as a
Prime Minister...
our leaders...did
not take out a mor-
cha to his house and
demand his resigna-
tion as we saw
in Goa.”
—Goa BJP President
Vinay Tendulkar
“It is the party
which decides,
but I have made
up my mind not to
contest the next
(Lok Sabha) elec-
tions due to
health reasons.”
—External Affairs
Minister and sen-
ior BJP leader
Sushma Swaraj,
while talking to
media at Indore
“Many are question-
ing why we (the
Shiv Sena) remem-
bered Ram now,
when the elections
are nearing. Why
should I hide it? I
have taken up this
issue because of the
elections only. I am
going to Ayodhya
to remind the BJP
about the promise.”
—Shiv Sena chief
Uddhav Thackeray
at an event in Mumbai
“You eulogise the cow
in MP but Congress
leaders in Kerala
slaughter calf and
take pictures of them
eating beef...So, which
is the real Congress,
the one in Kerala or
the one in MP....”
—PM Modi at an
election rally in
Chhindwara, MP
“He is the very epitome of integrity, humility,
sagacity and gravitas. Not for him tall claims.
Not for him empty and fanciful boasts. Not for
him self-promoting bombast. Not for him falsi-
fications of facts and history. Not for him the
language of abuse and vitriol.”
—UPA chairperson Sonia Gandhi on former PM
Manmohan Singh at a function in New Delhi

9. The Supreme Court gave two weeks’ time
to Trinamool Congress MLA Mahua
Moitra to produce documentary material in
support of her contention that the
centre’s move of hiring a social media
monitoring agency amounts to unwar-
ranted surveillance. A three-judge
bench headed by Chief Justice
Ranjan Gogoi said: “Please
show us from your pleadings
that the State will surveil the
online activities of citizens. File supplemen-
tary affidavit within two weeks to show that
this exercise is meant for state surveillance.”
In her petition, Moitra alleged that the Unique
Identification Authority of India (UIDAI) was
planning to hire a social media agency that
will use ‘social listening’ tools to monitor
and influence conversations related to
Aadhaar on social media platforms.
Moitra claimed that the proposed social
media hub is aimed at “mounting sur-
veillance on social media plat-
forms” and is violative of the
fundamental rights.
Courts
| INDIA LEGAL | December 3, 2018 9
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
Hardik Patel
booked for sedition
First death penalty
in 1984 riots case
The Supreme Court refused to
take any action against Delhi
BJP chief Manoj Tiwari for break-
ing the seal of a locked house in
an unauthorised colony in North
East Delhi. While disposing of the petition,
the Court said it did not find Tiwari guilty of
contempt of court, but slammed him for the
unlawful act. A bench of Justices Madan B
Lokur and Deepak Gupta, who had last
month reserved its order on contempt pro-
ceedings initiated against Tiwari, called him a
“rebel without a cause”. The bench said: “Mr
Manoj Tiwari took the laws in his hand and
broke and tampered with the seal...What
shocked us was the reason given by him for
breaking the seal and instead of acting
responsibly he acted blindly under mob
pressure....”
However, there are whispers amongst
senior lawyers asking that if the top court
found Tiwari not guilty, why were contempt
of court proceedings entertained at all. As
many as six hearings have been wasted on
the case, they argue. They also feel that the
Court seems to have acted in a contradictory
manner by saying that the Supreme Court
sealing order has not been violated.
AGujarat court framed charges
against Hardik Patel and his
two key aides, Dinesh
Bambhaniya and Chirag Patel, in a
sedition case filed in connection
with the violence during the
Patidar community’s quota agita-
tion in August 2015. The three
accused will be tried for sedition
(Section 124A IPC) and cons-
piracy to commit offences punish-
able by Section 121 (IPC) read
with criminal conspiracy (Section
120B IPC). The trial is likely to
begin from January 29, the next
date for the hearing in the case.
Produce material to
show surveillance: SC
While hearing a plea on
the inhuman conditions
prevailing in jails, the
Supreme Court slammed the
centre and states for not
addressing the issue of high
vacancies in forensic sci-
ence laboratories (FSLs)
across the country. The
Court also asked the centre
how it would ensure speedy
trial for undertrials in such a
situation. Additional Solicitor
General Aman Lekhi, appear-
ing for the centre, told the
Court that the process of fill-
ing the vacancies was
underway. In response, the
bench said that “the process
is underway for the past 20
years” and described the sit-
uation as “utter chaos”. The
bench also directed the
states to file their response
on this issue and posted the
matter for further hearing on
November 29.
ADelhi court awarded the death
penalty to convict Yashpal
Singh and sentenced another con-
vict, Naresh Sehrawat, to life im-
prisonment, for their role in the
1984 riots. A fine of `35 lakh
each has been imposed on both
convicts. This verdict follows the
conviction order passed earlier
this month, which held both men
guilty for killing two Sikh men in
South Delhi’s Mahipalpur area in
the wake of Prime Minister Indira
Gandhi’s assassination in 1984.
SC reprimands states for vacancies in forensic labs
No contempt
of court by
Manoj
Tiwari: SC

10. ISTHAT
The police often misuse
the power to arrest in order
to show their might. Those
arrested are also subjected
to physical and mental har-
assment. Can any action
be taken against such err-
ant policemen?
The police have been given
the power to arrest under
certain conditions—it
could be before a
crime/offence takes place
(preventive) or after the
offence has been commit-
ted. However, he will need
to justify the arrest by
invoking a particular sec-
tion of the law which
allows such arrest.
In case the arrest is
without any reason what-
soever, legal action can be
initiated against the con-
cerned policeman. A com-
plaint can be sent to his
senior or to the concerned
magistrate, describing the
arrest and the harassment
the complainant has faced,
and how it is affecting
him/her.
The concerned police-
man can then be asked to
appear before the magis-
trate under the Indian Po-
lice Act, 1861, and legal
action initiated against him
for misusing his powers.
Once proved guilty he can
be imprisoned, fined
or both.
The Delhi High Court has decriminalised beg-
ging in the capital. But can any action be
taken against policemen or civic authorities if
they still harass beggars or demand money
instead of implementing the Court’s order?
Many provisions of the law which prohibited
begging have been declared unconstitutional
by the Delhi High Court in Harsh Mander and
Another vs Union of India. The ruling also
said that cases under trial related to begging
in various courts be dropped.
If any policeman is found arresting a beg-
gar in Delhi, legal action under the Indian
Police Act of 1861 can be taken against him.
Legal action for human rights violation can
also be initiated. A complaint can be sent to
his seniors and the concerned magistrate.
The errant policeman can also be tried for
contempt of court.
Harassing Beggars
Compensation Withheld
—Compiled by Deepankar Malviya
Action Against
Errant Policeman
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What are the laws regarding rampant
honking and use of loudspeakers? Can
any action be taken against those violat-
ing the law?
Honking and rampant use of loudspeak-
ers are covered under the Noise
Pollution (Regulation and Control) Rules,
2000. According to the Rules,
loudspeakers can only be
used after obtaining writ-
ten permission from the
concerned authorities.
However, they can’t be
used at night. Horns
can’t be used in silence
zones, like hospitals,
schools, courts, religious places, etc,
and at night—after 10 pm in residential
areas.
If a person is found violating these
laws, complaints can be filed with the
concerned authority and the authority
can take action against the violator
under the Rules.
Regulating Noise
?
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
What legal steps can be taken by the people
and against which authority if the government
fails to give them compensation for demolish-
ing their houses or places of work for the
sake of development projects?
The government takes away properties and
land for development projects in many cities
and towns. But adequate compensation is
granted to those affected. Certain people in
authority are given the responsibility to award
the compensation and ensure that there are
no glitches.
However, if the government fails to do so,
a petition seeking the writ of mandamus can
be filed under Article 226 of the Constitution
against the secretary of the concerned depart-
ment and the officers responsible for distribut-
ing the compensation amount among
the people.
10 December 3, 2018

12. The NDA gov-
ernment was left
with egg on its
face following
US President
Donald Trump’s
rejection of its invitation to
be chief guest at the Re-
public Day celebrations. The
government had gone pub-
lic about the invitation and
when Trump finally refused,
it led to some panic-stricken
meetings at the PMO and
the ministry of external
affairs to find a suitable sub-
stitute. At least four world
leaders were sounded out
but they all declined
because of the late invita-
tion, and knowing Trump
had turned it down. Finally,
a senior IFS officer at the
MEA who had served in
Pretoria remembered that
President Cyril Ramaphosa
was a great fan of Mahatma
Gandhi from his student
activist days with the ANC,
and had often expressed a
wish to spend time in India.
An official invitation was sent
from Prime Minister Modi,
mentioning the Gandhi con-
nection and the fact that
Ramaphosa takes part in
the annual Gandhi Walk in
Johannesburg (above). The
letter mentioned that he
would walk where Gandhi
walked. Before that, a
bizarre suggestion was
floated at the PMO, ostensi-
bly to impress Modi, that
this time, Republic Day
could be celebrated at the
foot of the Patel statue,
because of its scenic
surroundings and world
record. Thankfully, it was
quickly shot down.
12 December 3, 2018
An inside track of
happenings in Lutyens’ Delhi
For once, the BJP seems to have been
caught flat footed. Mehbooba Mufti (cen-
tre), traditional rival Omar Abdullah (right)
and Congress leaders Ghulam Nabi Azad
and Ambika Soni (left) secretly and care-
fully communicated with each other. They
decided to forge
an unlikely alli-
ance to stake a
claim to form the
government in
Srinagar, to thwart
the BJP’s attemp-
ts to form its own
government by
backing local
leader Sajad Lone
and potential
defectors from
Mufti’s PDP. They
had no idea that
the coalition had firmed up the required
numbers, till Mehbooba’s fax landed in
Governor Satya Pal Malik’s tray. He
ignored the letter, and frantically called
BJP’s trouble shooter for Kashmir, Ram
Madhav, who spoke in turn, to Amit Shah.
Within minutes, Malik issued an order dis-
solving the assembly—on the same fax
that had not worked when Mufti’s missive
arrived. That the BJP was foxed by the
development was obvious from Madhav’s
disgraceful tweet accusing Omar and the
Congress of acting on orders from
Pakistan. The key players—Omar, Meh-
booba and Soni—mainly used go-bet-
weens to connect and negotiate since
Mehbooba visiting Omar would not go
unnoticed or, for that matter, Azad being
in Srinagar.
Soni was the ideal choice as catspaw,
and when the trio did need to meet, it was
very late at night with no security convoys
or guards to give the game away. In fact,
so unthinkable was the prospect of an
alliance between Omar, Mehbooba and
the Congress, that the BJP had no wind of
it till it was almost too late.
The media went into a tizzy
after Sushma Swaraj, the Union
minister for external affairs,
announced that she will not be
contesting the Lok Sabha polls
next year due to her poor
health. The announcement trig-
gered immediate speculation
on social media that Swaraj’s
decision was the result of her
being sidelined within the BJP
since Narendra Modi and Amit
Shah took total control of the
party. Some even claimed that
Swaraj had been feeling slight-
ed ever since she was trolled
by right-wing loonies on Twitter
with the foul moniker of Visa
Mata for helping a Muslim
woman get a passport.
However, the announcement
was actually not as sudden as
it seemed. Swaraj had had
lengthy discussions with Modi
and Shah over the past several
months. The BJP veteran had
apparently told them soon after
her kidney transplant that her
health will no longer permit her
to devote time to electoral poli-
tics and that she would prefer a
Rajya Sabha berth if the party
wishes for her to continue in
Parliament. The Modi-Shah duo
had accepted Swaraj’s wish
but told her to make a formal
announcement “strategically”.
Swaraj has been representing
MP’s Vidisha constituency in
the Lok Sabha since 2009.
However, given her ministerial
responsibilities and failing
health, she has largely been an
absentee in Vidisha since her
re-election in 2014—a fact that
has caused substantial resent-
ment in her constituency. With
the BJP facing heavy anti-
incumbency in MP, Swaraj’s
announcement was
perhaps aimed as
a justification to
her voters for not
being available
and an assurance
that they will
get a new
BJP candi-
date in
2019.
STRATEGIC
TIMING
THE KASHMIR CONUNDRUM
DONALD
AND CYRIL

13. | INDIA LEGAL | December 3, 2018 13
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Delhi
Durbar
You’d think that the technology they
use, like the ideology they propound,
is outdated. While Communism is
being increasingly rejected around the
world, there’s hope still among desi
comrades that the CPI(M), which just
a decade ago was the power behind
the Delhi throne but now is in the
dumps, will bounce back. If it doesn’t,
it won’t be for lack of trying. A recent
communiqué that went out from a
CPI(M) area committee head to all
cadres read thus: “Dear Comrade, To
make our social media outreach effec-
tive, it is imperative that we get our
message across to as many people
as possible. In this case, we reach
everyone who owns a smartphone.
Towards this end, all comrades are
requested to save your area commit-
tee office WhatsApp number
xxxxxxxxxx on your phones. Please
send a message from your WhatsApp
to the area committee office giving
your name, address, details of your
booth etc. You will then start receiving
dozens of messages, photos and
videos from your local committee
office. As members committed to the
party’s cause, you should forward
these to all groups that you are asso-
ciated with as also all those on your
contact list and also share it on Face-
book, Twitter etc. Your efforts will not
go unrewarded. At the end of each
month, the area committee will evalu-
ate your performance on social media
and if your name figures among the
top 50 who shared/posted/forwarded
the party’s messages, you will be
given 2 GB free data every day for the
subsequent month.” Lal Salaam.
NEAR EXTINCT, BUT TECH-SAVVY
The Congress party has fielded all its
heavyweights for the assembly polls in
Rajasthan while its chief ministerial
hopefuls in MP—Kamal Nath and
Jyotiraditya Scindia—are not even in
the electoral fray. In Rajasthan, Ashok
Gehlot and Sachin Pilot (above)—both
frontrunners for the CM’s chair—are
contesting and so are veterans Girija
Vyas and CP Joshi. Many believe that
this is the Congress’s most aggres-
sive pitch to return to power in any of
the five poll-bound states.
However, insiders say the decision
is more a mark of Gehlot’s brinkman-
ship. Despite emerging as an indis-
pensable leader in Rahul’s coterie in
New Delhi, Gehlot’s heart pines for the
seat of power in Jaipur which he has
held twice before. Pilot has been vying
for the chair ever since Rahul chose
him to lead the party’s state unit.
Joshi and Vyas are also CM hopefuls
despite knowing that they don’t
really stand a chance against Gehlot
and Pilot.
Sources say that it was Gehlot’s
idea that these warhorses must con-
test the polls. The former Rajasthan
chief minister has also succeeded in
cornering a lion’s share of party tick-
ets for his loyalists; his own victory
from the Sardarpura seat is a fore-
gone conclusion. This would be Pilot’s
debut in an assembly election—he
has been elected to the Lok Sabha
twice earlier—and is contesting from
Tonk, new electoral ground for him.
For Rahul, it would be a tough call
to pick the CM if the party indeed de-
feats Vasundhara Raje’s BJP in Raj-
asthan. Even if Rahul decides to
anoint Pilot in the CM’s chair, Gehlot
has ensured that a majority of the
elected MLAs are from his faction,
giving him ample room for flexing his
political muscles, if and when the
need arises.
AGRICULTURAL SHOT
In what is seen as a huge embarrass-
ment for the Modi government which
has so far expressed no regrets for its
ill-fated introduction of demonetisation,
and does, in fact, continue to justify
it as a successful step, one of its own
ministries has admitted that it had a
disastrous effect on the farming com-
munity across the country.
In a meeting of the standing
committee of the ministry of finance,
the ministry of agriculture acknowl-
edged that due to the lack of cash,
millions of farmers were unable to
purchase seeds and fertilisers ahead
of the rabi season when PM Modi
sprang his surpise in November 2016.
The agriculture ministry has pointed
out that the timing of demonetisaion
was unfortunate since it came when the
farmers were either selling their kharif
yield or sowing rabi crops.
With demonetisation, all the cash
that they had collected for buying
seeds and other agricultural aids virtu-
ally turned to ash.
The ministry report says that even
subsidised government seeds
remained unsold.
The report says that due to the
sudden cash crunch, about 1.38 lakh
quintals of wheat seeds of the National
Seed Corporation were left to rot.
POLL VAULT

14. November 26 is celebrated as Constitution Day, in
celebration of the remarkable document that rep-
resents the supreme law of India, the Constitution
of India, which came into effect on this day, 68
years ago. Has it lived up to its sublime promise? A
Special Report.
The Constitution of India is the supreme law of
India. It frames fundamental political principles,
procedures, practices, rights, powers, and duties of
the government. It imparts
constitutional supremacy and
not parliamentary suprema-
cy, as it is not created by the
parliament but by a con-
stituent assembly, and adopt-
ed by its people, with a decla-
ration in its preamble. The
parliament cannot override it.
The constitution declares
India a sovereign, socialist,
secular, democratic republic,
assuring its citizens justice,
equality and liberty, and
endeavours to promote fra-
ternity. Bhimrao Ramji
Ambedkar was appointed
chairman of the drafting com-
mittee on August 28, 1947,
with one objective—to draft a
permanent and organised
constitution for India. The
constitution was drawn from
a number of sources, includ-
ing the Government of India
Act, 1858, the Indian Councils Acts of 1861, 1892
and 1909, the Government of India Acts of 1919
and 1935, and the Indian Independence Act, 1947.
The latter, which led to the creation of India and
Pakistan, divided the former Constituent Assembly
into two. Each new assembly had the sovereign
power to draft and enact a new constitution.
The origins go back to 1928 when a committee
with Motilal Nehru as the chairman was set up “to
determine the principles of the constitution for
India”. The Nehru report was submitted on August
10, 1928. It was an outline of a draft constitution
for India. Most of its features were later included
in the constitution. The Nehru report laid special
emphasis on securing fundamental human rights
for the people of India. Of the 19 rights listed in the
Nehru report, 10 were incorporated into the con-
stitution. The Constitution of
India was finally drafted by
the Constituent Assembly,
which was elected by members
of the provincial assemblies. A
galaxy of learned wise men
framed the constitution in its
present form after lengthy
debate and discussion on each
proposal. On November 26,
1949, India adopted the
Constitution, which was
signed by 284 members. The
day is celebrated as
Constitution Day. The original
Constitution is hand-written,
with each page decorated by
artists from Santiniketan,
including Nandalal Bose. The
Constitution has seen a
number of amendments since
then but its basic objective—to
preserve the concepts of
parliamentary democracy,
civil liberties, social and eco-
nomic justice—remain to this day. The
Constitution of India provides its citizens with six
fundamental rights. These rights are the Right to
Freedom, Right to Equality, Cultural and
Educational Rights, Right to Constitutional
Remedies, Right against Exploitation. Recently,
the Right to Privacy has also been added to the list
of fundamental rights.
Lead/ Constitution Day
14 December 3, 2018
Making of India
SACRED TEXT
The preamble to the Constitution declares India a
sovereign, socialist, secular, democratic republic

15. | INDIA LEGAL | December 3, 2018 15
THE Constitution of India is the
longest written constitution of any
sovereign nation in the world. It con-
sists of approximately 1,45,000
words. In its original avatar, it had
395 articles in 22 parts and eight
schedules. Currently, it has a pream-
ble, 25 parts with 12 schedules, five
appendices, 448 articles, and 101
amendments. The Constitution of
India was adopted on November 26,
1949, but only came into effect on
January 26, 1950, now celebrated as
Republic Day. The 389-member
Constituent Assembly (reduced to
299 after the partition of India) took
Jawaharlal Nehru, C Rajagopalachari,
Rajendra Prasad, Vallabhbhai Patel,
Kanhaiyalal Maneklal Munshi,
Ganesh Vasudev Mavalankar,
Sandipkumar Patel, Abul Kalam Azad,
Shyama Prasad Mukherjee, Nalini
Ranjan Ghosh and Balwantrai Mehta
were key figures in the assembly.
Frank Anthony represented the
Anglo-Indian community while the
Parsis were represented by HP Modi.
Harendra Coomar Mookerjee, a
Christian, chaired the minorities com-
mittee and represented non-Anglo-
Indian Christians. Female members
included Sarojini Naidu, Hansa
Mehta, Durgabai Deshmukh, Amrit
Kaur and Vijaya Lakshmi Pandit.
HISTORY IN THE MAKING
(Clockwise from left) Dr BR
Ambedkar (seated, centre),
chairman of the drafting
committee of the
Constitution, with other
members; Prime Minister
Jawaharlal Nehru signing
the Constitution; BR
Ambedkar presenting the
final draft of the
Constitution to Constituent
Assembly President Dr
Rajendra Prasad on
November 25, 1949;
(bottom) the original
Constitution on display at
Parliament House in
New Delhi
almost three years to draft the constitu-
tion, holding eleven sessions over a 165-
day period. The estimated cost of the
Constituent Assembly was `6.3 crore.
The original 1950 Constitution is pre-
served in a helium-filled case at Parl-
iament House in New Delhi.
BR Ambedkar, Sanjay Phakey,
Factoid

16. Lead/ Column Prof NR Madhava Menon
16 December 3, 2018
ONSTITUTION Day (Nov-
ember 26) is an occasion to
look at the performance of
the State in terms of constitu-
tional governance on the one
hand, and to make an assessment of the
extent to which constitutionalism has
taken root on the other.
EXPECTATIONS AND
ACHIEVEMENTS
The expectations are vividly explained
in the preamble to the Constitution and
the terms of their implementation in the
Fundamental Rights, Directive Prin-
ciples of State Policy and Fundamental
Duties are outlined in the Constitution
itself. The very fact that the Constitution
is alive and kicking in India, while
many countries which gained independ-
ence along with India have had their
constitutions annulled or overthrown by
authoritarian regimes, is testimony to
the dynamism of Indian politics and
the commitment of the people of
India to democracy, rule of law and
human rights.
Despite several challenges from
cross-border terrorism and border skir-
mishes with neighbouring countries, the
country could maintain its unity and
integrity, asserting the sovereignty of the
republic. There are, of course, un-
resolved border disputes which are
largely legacies of the colonial past. The
good news is that India today is far
stronger, both economically and militar-
ily, than in the past and can negotiate
from a position of strength for settle-
ment of all disputes with other coun-
tries, big and small.
On the “socialist and secular” charac-
ter of the State, there are different views
possible on performance, depending on
the meaning and content one ascribes to
these words. The Supreme Court in DS
Nakara v Union of India said that the
“principal aim of a socialist State was to
eliminate inequality in income, status
and standard of life”. While Parliament
and state legislatures have been legislat-
ing to equalise opportunities and status,
in respect of inequalities in income, the
situation is considered unsatisfactory,
particularly in the rural and tribal sec-
tors. It is true there is no more starva-
tion and famine anywhere in the coun-
try and people below the poverty line
have been steadily decreasing over the
years. The affirmative action pro-
grammes of central and state govern-
ments have enabled the Scheduled
Castes, Scheduled Tribes and backward
classes of people, particularly women
and children, to lift themselves to a bet-
ter quality of life as compared to the ini-
tial decades of the republic. The build-
ing of an egalitarian social order is work
in progress.
SECULARISM: VICTIM OF VOTE
BANK POLITICS
Given the diversity of the population
and the guarantee of religious freedom
to all citizens with special rights for
minorities, secularism in the Indian
context was conceived differently in con-
cept and application to that prevailing
in Europe and America. In SR Bommai
v Union of India, the Supreme Court
declared that as per the constitutional
provision, secularism means equal treat-
ment of all religions by the State with-
out the State subscribing to any religion.
That India preferred to remain secular
despite the fact that the country was
partitioned on the basis of its Hindu-
Muslim population is testimony to the
secular commitment and desire to
accommodate all religious groups in the
multi-religious republic of India. No
doubt, there are continuing tensions
and occasional religious conflicts
which adversely affect the development
journey and the spirit of common broth-
erhood and fraternity, essential for
nationhood.
The inability of the State to imple-
ment the mandate of Article 44 in
respect of a Uniform Civil Code for all
citizens and the manipulation of reli-
gious groups for vote bank advantages
by political parties have, however, creat-
ed a false image in the public mind
C
We’ve Come a Long Way
Anil Shakya

17. | INDIA LEGAL | December 3, 2018 17
about the practice of secularism by suc-
cessive governments. All religions con-
tinue to prosper in this land and issues
being settled through rule of law augur
well for the secular future of India.
On democracy and republicanism,
India has an enviable record comparable
to the so-called developed countries.
Democracy has taken deep root with
smooth transfer of power every five
years (sometimes more often) after free
and fair polls involving over 650 million
voters! Power is devolved to panchayats
and local bodies where people partici-
pate directly in local governance.
Representative bodies duly elected by
the people are managing the provincial
and Union governments. In short, the
democratic experiment in India has
picked up dynamism and inclusiveness
on the constitutional path in a short
period and proved to the world that
unity in diversity is possible under a
democratic regime.
COMPLEMENTARITY OF
CONSTITUTIONAL INSTITUTIONS
It is unnecessary for the purpose of this
essay to decipher the role of each of the
three wings of the State in the achieve-
ments made during the last seven
decades. Constitutional institutions are
expected to play complementary roles in
achieving the constitutional goal
though, on occasion, their functions and
powers are so organised as to act as
checks and balances to advance the con-
stitutional scheme of good governance.
The Constitution has assigned a
unique role to the Judiciary with the
Supreme Court as the final interpreter
of it and its laws. The Court is also sup-
posed to be the guardian and protector
of the Fundamental Rights of the peo-
ple. The performance of the Judiciary in
safeguarding and strengthening consti-
tutional governance and protecting the
guaranteed rights of the people is there-
fore important for making an assess-
ment of the status of the Constitution
when it turns 70 in November 2018.
SC PERFORMANCE IN
NATION-BUILDING
The Supreme Court has safeguarded
and strengthened the Constitution and
made a qualitative difference in gover-
nance under rule of law. Firstly, by the
introduction of the innovative doctrine
of “basic structure”, the Court in the
Kesavananda Bharati case declared that
the Constitution has certain basic fea-
tures that cannot be altered or destroyed
through the amending power of Parlia-
ment. By not specifying the basic fea-
tures, the Court consolidated its
supremacy on matters of constitutional
interpretation and restrained possible
excesses by a future majoritarian gov-
ernment. Secondly, by introducing the
“due process of law” clause (expressly
excluded in Article 21) through the
Maneka Gandhi case, the Court
assumed the power to redefine the con-
tours of the Fundamental Rights and
strengthened the scope for preventing
arbitrariness in all governmental deci-
sion-making.
More importantly, by a stroke of judi-
cial activism, the Court found the tradi-
tional rule of “locus standi” coming in the
way of equal access to justice for those
who, because of their poverty or socially
or economically disadvantageous posi-
tion, are unable to approach it for relief.
Pioneering the concept of public interest
litigation (PIL), the Court permitted
public-spirited persons to file petitions
for the enforcement of rights of any other
person. Using the PIL jurisdiction, the
Court, in a series of decisions, widened
the ambit of constitutional provisions to
enforce the human rights of citizens,
enlarge the range of rights protected by
the Constitution and democratise legal
remedies to provide appropriate relief in
cases of violations. The Supreme Court,
thus, became the people’s court in the
real sense of the term.
Of course, in the process of becoming
an activist, the Supreme Court had to
face criticism for allegedly encroaching
on the domain of the Executive and
Legislature and seeking to be populist
while lacking democratic accountability.
While presenting the report card
on seven decades of constitutional go-
vernment, the picture emerging is of
growing constitutionalism amidst un-
certainties of institutional roles and
responsibilities in facing the challenges
of contemporary politics in a globalising
economy.
—The writer is a reputed
legal educator
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.comUNIDEMOCRATIC IDEALS: India’s record on democracy is one of the best in the world

18. HE constitution of a country
is the supreme law—it is the
source of all governmental
power, legislative, executive
or judicial. It is the law
which delineates the regulation and
management of power in governmental
institutions. Apart from the inter-institu-
tional dynamics, a modern democratic
constitution has another important role
to play—to provide fundamental guaran-
tees and freedoms for every individual or
community to live with dignity.
Despite being the lengthiest in the
world, the Indian Constitution makers
ensured that its flexibility is not affected
due to its specificity. Its flexibility is evi-
dent from constitutional practice over
the last 68 years and in particular, from
the manner in which the Supreme Court
has interpreted it to suit the needs of the
times and by breathing life into it. There
are also special provisions to enforce rule
of law and constitutional mandate, viz.
due process of law; public interest litiga-
tion; and the treatment of women, juve-
niles, senior citizens and mentally chal-
lenged persons.
DUE PROCESS OF LAW
The constitution-makers deliberately
avoided the use of the term “due process”
while guaranteeing the right to life and
personal liberty. Article 21 provides that
“no person shall be deprived of his life or
personal liberty except according to pro-
cedure established by law”. The draft
Article 15 (now Article 21) attracted con-
siderable attention and polarised opinion
both within the Constituent Assembly
and outside. Eventually, the “due
T
Rule
of Law
the Court can now test a procedure
established by law on the anvil of it being
“just, fair and reasonable” and it can
strike down a procedure if it is found to
be fanciful, oppressive or capricious.
The impact of the Maneka Gandhi
case on Indian jurisprudence, and
indeed judicial thinking, is so deep that
it would not be an understatement to say
that though the Constitution was con-
ceived in 1950, its birth was in 1978
when this case came up. Decades later,
Article 21 is a positive obligation to
ensure that persons live with dignity and
the high ideals of the Constitution are
translated into meaning for an ordinary
Indian’s routine existence.
PERSONAL LIBERTY
The Supreme Court has extended the
process” requirement on the lines of the
American Constitution was dropped in
favour of the phrase “procedure estab-
lished by law”, which finds place in the
Japanese Constitution. The entire exer-
cise was undertaken to limit judicial
review of the government’s powers, espe-
cially in the area of preventive detention.
The bare reading of Article 21 is, thus, all
that the State needs to do to deprive a
person of his liberty.
This bare reading was reinforced by
the Supreme Court in AK Gopalan v
State of Madras, where the Court held
that once there is a procedure estab-
lished by a law, such a procedure will be
immune from any judicial scrutiny.
However, the Supreme Court correct-
ed itself. After the Emergency, it asserted
itself and gave meaning to the right to
life and personal liberty by introducing
the test of reasonableness to this “proce-
dure established by law” in Maneka
Gandhi v Union of India. In other words,
Lead/ Column Prof Ranbir Singh
18 December 3, 2018
LEARNING FROM THE PAST
After the Emergency, the SC introduced the
“just, fair and reasonable” test in Article 21
IndiaHistorypic/Twitter

19. | INDIA LEGAL | December 3, 2018 19
ambit of Article 21 and this provision has
been the cornerstone for strengthening
the rule of law. A long list of cases decid-
ed on Article 21 is illustrative of the
extent to which the Supreme Court has
given importance to personal life and
liberty. It has also extended the list of
unenumerated Fundamental Rights.
PUBLIC INTEREST LITIGATION
Once the Supreme Court paved the way
in the Maneka Gandhi case for a liberal
and meaningful interpretation of the
rights charter, in SP Gupta v Union of
India, the Court relaxed the requirement
of locus standi in PILs. If we look at the
text of Article 32 which bestows on every
person the right to constitutional reme-
dies, it is found that the requirement of
locus standi is absent. It states: “The
right to move the Supreme Court by
appropriate proceedings for the enforce-
ment of the rights conferred by this Part
is guaranteed.” It does not specify who is
required to approach the Court for
enforcement of fundamental rights. Yet,
it guarantees the right to get such rights
enforced by the Supreme Court.
RULE OF LAW, EQUALITY
AND JUDICIARY
In Dr Subramanian Swamy v Dr
Manmohan Singh, Justice AK Ganguly
observed that both rule of law and equal-
ity before the law are fundamental ques-
tions in the Constitution as well as in
international rules. In this judgment,
Justice Ganguly elaborates that
Parliament should contemplate constitu-
tional overbearing of Article 14 enshrin-
ing the rule of law wherein “due process
of law” has been read into it by introduc-
ing a time limit in Section 19 of the
Prevention of Corruption Act, 1988.
SPECIAL LEGISLATION
Gender Justice
The policies of the government are com-
mitted to enable women to be “equal
partners and participants in develop-
ment”. The Constitution guarantees
equality of status of women and has laid
the foundation for such advancement. It
also permits reverse discrimination in
favour of women and many important
programmes that have been designed
specifically to benefit girls and women.
A number of laws have been enacted
which have brought forth a perceptible
improvement in the status of women.
These include the Immoral Traffic
(Prevention) Act, 1956; Hindu Succ-
ession Act, 1956; Dowry Prohibition
Act, 1961; Maternity Benefit Act, 1961;
Equal Remuneration Act, 1976;
Indecent Representation of Women
(Prohibition) Act, 1986; Pre-conception
and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994;
Protection of Women from Domestic
Violence Act, 2005, and Prohibition of
Child Marriage Act, 2006. The Criminal
Amendment Act, 2012, framed under
the Justice Verma Committee Report is
another tool to ensure gender justice in
India.
Juvenile Justice
Realising the importance of juvenile jus-
tice in Sampurna Behrua v Union of
India & Ors (2011), the Supreme Court
observed that the Home Departments
and DGPs of states/UTs will ensure that
at least one police officer in every police
station is given appropriate training and
orientation and designated a juvenile or
child welfare officer. He will handle the
juvenile or child in coordination with
the police as provided under sub-section
(2) of Section 63 of the Act. The
required training will be provided by the
district legal services authorities under
the guidance of the State Legal Services
Authorities (SLSAs) and Secretary,
National Legal Services Authority, will
issue appropriate guidelines to SLSAs
for training and orientation of police
officers who are designated juvenile or
child welfare officers. The training and
orientation may be done in phases over
a period of six months to one year.
An independent judiciary, independ-
ent constitutional review and the notion
of the supremacy of law all work togeth-
er to ensure that the letter and spirit of
the Constitution are complied with in
the working of a constitutional govern-
ment. Rule of law, therefore, has been
claimed as the most important constitu-
tional principle. It is, therefore,
heartening to note the working of the
Constitution and the role of the
Supreme Court in promoting the rule of
law and enforcing justice.
— The writer is Vice-Chancellor,
National Law University, Delhi
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UNI
CHARTING PROGRESS
The ambit of right to life has been extended to
include other rights like the right to education

20. and the constitutional rights of citizens
continue to be the most challenging task
before the judiciary and the Supreme
Court has brought greater clarity and
predictability in the dealing of religious
rights of citizens and institutions.
A landmark judgment by a
Constitution Bench of seven judges of
the Supreme Court laid down the law
relating to this right in the famous
Shirur Mutt case in 1954. The pre-
Constitution decisions of Indian courts
and the Privy Council usually were in
favour of not infringing on religious
matters, including worship as well as
management of religious affairs. But the
Shirur Mutt case laid down the follow-
ing propositions:
Religion includes rituals, practices,
customs, usages, etc
Only those customs, practices, etc,
which are essential and integral to the
religion get constitutional protection
The Court alone will decide whether a
custom or practice is an essential and
integral part of the religion
The Court will decide it on the basis of
fundamental right to manage their own
affairs in matters of religion. Religion
under the Constitution does not merely
consist of the doctrinaire aspects, but
also the rituals, customs, practices,
usages, etc, associated with worship.
The right to practise religion, it must
be understood, is not an absolute or
untrammelled freedom. As Article
25(1) clearly states, it is subject to public
order, health and morality and also to
the other provisions in Part III (fun-
damental rights). Other provisions are
Articles 14, 15, 19, 21, etc, which are the
most fundamental of the fundamental
rights under the Constitution.
An analysis of the decisions of the
apex court relating to Articles 25 and 26
during the past decades reveals that the
judiciary has been consistent in uphold-
ing the right to practise religion and also
to manage the affairs in matters of reli-
gion. The unravelling of complex and
often knotty religious practices and tra-
ditions and propounding the right doc-
trines for benchmarking them and find-
ing of the right balance between faith
Lead/ Column PDT Achary
20 December 3, 2018
HE preamble of the
Constitution proclaims that
it aims at securing for all cit-
izens inter alia liberty and
faith and worship. Articles
25 and 26 embody this objective. Article
25 provides freedom to practise religion
to individuals, whereas Article 26 gives
this freedom to religious denominations.
Though a secular republic, India is not
an irreligious nation. Rather, it is tradi-
tionally one of the most religious coun-
tries in the world. But it did not become
a theocratic country thanks to the secu-
lar vision of the leaders who led India
during the freedom struggle and for
long thereafter. Thus, right to worship
was enshrined as a fundamental right in
the Constitution.
Article 25 confers the right to “prac-
tice religion” on all “persons” and not
merely citizens. Similarly, Article 26
confers on religious denominations the
T
LAW OVER FAITH
Women were not allowed to enter the Haji Ali
shrine (below) until the SC intervened in 2016
Religion and the Courts
Photos: UNI

21. | INDIA LEGAL | December 3, 2018 21
the tenets of the religion.
These propositions were followed in
most of the subsequent decisions. In
fact, in Ratilal Panachand Gandhi v
State of Bombay (1954), the Supreme
Court laid down an additional proposi-
tion—that if a custom or practice is the
belief of a community, a secular judge
should accept it and should not sit in
judgment on it. Thus, apart from the
tenets, the opinion of the community
has also become an important factor in
deciding whether a custom is essential.
A
nother important case which did
a thorough analysis of the rights
under Articles 25 and 26 is
Venkataramana Devaru v State of
Mysore (1958). It followed the Shirur
Mutt propositions, but held that Article
26(b), which gives religious denomina-
tions the fundamental right to manage
their own affairs in the matter of reli-
gion, should be read as subject to Article
25(2)(b) which allows Hindu religious
institutions to be opened to all sections
and classes of Hindus. But the Court
said here that as far as possible, both
should be given effect through the
process of harmonious construction.
The concept of essentiality and inte-
grality of customs, practices, etc, has
been treated as the core aspect in decid-
ing the question of constitutional pro-
tection to be given to a custom prevail-
ing in a place of worship. It assumes
importance in the context of Hindu
temples because the Hindu religion is
not a monolith and contains diverse
customs, beliefs, practices, systems of
faith, etc. So, how to apply the doctrine
of “tenets of religion” in the case of an
important custom or practice in a tem-
ple is a difficult question. This question
was made somewhat more difficult by
the Supreme Court judgment in the sec-
ond Ananda Marga case in 1984.
The question raised in this case was
whether a dance in public with a skull
and trident by the followers of the
Ananda Marga sect was an essential and
integral part of religion. The answer was
an emphatic no. But the elucidation of
the “essential part” of religion given by
the Court has made the determination
of this issue more complicated. For
example, the Court says that the test to
find out whether a custom or practice is
an essential part of the religion is
whether the nature of the religion will
change if that practice is abandoned.
The real difficulty will arise when
deciding whether the Hindu religion
will change if a custom or practice,
howsoever important, is abandoned. A
unidimensional application of this doc-
trine to a Hindu religious custom in a
place of worship can create enormous
difficulties.
This is what happened after the
Sabarimala judgment was delivered by
the Constitution Bench. The central
issue in that case was whether the prac-
tice of excluding women between 10 and
50 years of age from the temple is an
essential part of the religion. The judg-
ment said that such an exclusion is not
an essential part of the Hindu religion.
But the actual issue is which tenets of
the Hindu religion this practice of exclu-
sion should be tested on. The dictionary
meaning of “tenet” is principle or belief.
Belief is more appropriate in the context
of religion. The presence of divinity in
the idol installed and consecrated in a
temple is regarded as a core belief of
Hindus. A custom prevailing in a temple
should be tested on the touchstone of
the core belief of the worshippers.
However, the Sabarimala Bench
went into the lofty principles of consti-
tutional morality and the right of
women to worship. Framing the
Sabarimala issue in terms of the polarity
between women’s rights and an anti-
women custom fostered by a patriarchal
society is fundamentally wrong. This
has created a huge turmoil in Kerala.
If the Supreme Court had adopted the
approach of the Venkataramana Devaru
case in harmonising the contradictions,
a time-honoured custom as well as the
fundamental right of excluded women
to worship the deity could have been
harmonised.
The general approach of the highest
judiciary in matters of religion has been
to exercise a certain degree of restraint.
The basis of religion is faith which is not
amenable to judicial review. No doubt
the stamping out of the evil practices
associated with places of worship of
Hindus has the support of society, but it
becomes difficult for the judiciary to for-
mulate judicially manageable standards
in dealing with customs which evoke
deep resonance among the people.
—The writer is a former secretary
general of the Lok Sabha
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
FramingtheSabarimala(above)issuein
termsofthepolaritybetweenwomen’s
rightsandananti-womencustomfostered
byapatriarchalsocietyisfundamentally
wrongandhascreatedturmoilinKerala.

22. Supreme Court/ CBI Case
22 December 3, 2018
HE week gone by saw an
uncharacteristic, even
misdirected, outburst by
Chief Justice Ranjan
Gogoi as a Supreme Court
bench headed by him
heard a petition filed by CBI chief Alok
Verma. Visibly upset over the “leak” of
confidential details pertaining to the
case, the chief justice wrapped up the
proceedings on November 20 in a
matter of minutes after asserting that
the parties in the case “do not deserve
any hearing”.
Adjourning the case till November
29, CJI Gogoi made his displeasure
known to Verma’s counsel, senior advo-
cate Fali Nariman, about the purported
leak of the CBI chief’s response to the
Central Vigilance Commission’s (CVC)
inquiry report against his alleged cor-
ruption and professional misconduct.
The other trigger for the CJI’s fury
was a request by advocate Gopal
Sankaranarayanan to the bench a day
prior. Appearing for Verma before the
bench, also comprising Justices SK Kaul
and KM Joseph, on November 19,
Sankaranarayanan had sought an exten-
sion of the deadline given to the CBI
director to file his reply with the Court
to the CVC’s findings.
Shortly after the case was adjourned,
the CJI allowed Nariman to offer his
clarification on the issues that had riled
the Court. And it turned out that the
“leak” was more a case of “much ado
about nothing”. Sankaranarayanan’s
appearance was a classic example of
how litigants (Verma, in this case) must
be extra cautious in handling their legal
battles, especially ones where they have
an edge, and it wasn't surprising that
the CJI attributed the mess to the “inef-
RanjanGogoi’soutburstover
a“leak”ofconfidential
detailsinCBIdirectorAlok
Verma’scaserunscounterto
hisearlierassertionofthe
needfor“noisyjournalists”
toprotectdemocracy
By India Legal Bureau
T
Chief
Justice
Loses His
Cool
Anil Shakya
“Weexpressedthathighestdegreeof
confidentialitymustbemaintained
andthislitigant(theCBIdirector)takes
thepapersandsharesthemwith
everyone.Ourrespectforthisinstitution
isnotsharedbyanyone.”
—CJIRanjanGogoi

23. ficiency of counsel”.
Handing a copy of an article pub-
lished by news portal The Wire to
Nariman, Chief Justice Gogoi said: “We
expressed that highest degree of confi-
dentiality must be maintained and this
litigant (the CBI director) takes the
papers and shares them with everyone.
Our respect for this institution is not
shared by anyone.”
Earlier in the day, when the bench
had first assembled to hear the case,
Nariman had told the CJI that the pur-
ported leaks had not been authorised by
him or anyone in Verma’s legal team.
T
he article published by The Wire
was about Verma’s response to a
questionnaire that the CVC had
sent to him during the two-week apex
court-mandated period of the inquiry
against him, which was being super-
vised by retired Supreme Court judge
Justice AK Patnaik. This inquiry had
ended on November 10 and its report
was filed with the Supreme Court’s reg-
istry on November 12 in a sealed enve-
lope. The order of the apex court to
maintain confidentiality (read: file in
sealed covers) was given in relation to
this report. Subsequently, on November
16, Verma’s response to the inquiry’s
findings was filed in a sealed envelope
on November 19.
The corridors of the Supreme Court
are still abuzz with questions on why the
CVC’s report should have been delivered
under sealed cover (were national secu-
rity secrets involved?), and why the
“service related matter” regarding the
summary removal of Verma without
recourse to due process could not have
been taken up separately from the
charges and counter charges of corrup-
tion within the CBI. But this is a differ-
ent debate altogether.
Nariman pointed out to the CJI that
the confidentiality order did not apply to
Verma’s response to the CVC during the
course of the inquiry. The CJI said
nothing to this submission, but
expressed further displeasure over the
publication of new allegations made in a
petition filed before the Court by CBI
officer MK Sinha.
Sinha’s petition has levelled serious
allegations against National Security
Adviser Ajit Doval (of stymieing the
Agency’s probe against its special direc-
tor, Rakesh Asthana), Union minister
Haribhai Chaudhary (of being paid
bribes by Hyderabad-based business-
man Sathish Sana), and other senior
government officials. Sinha was part of
the CBI team that was probing the cor-
ruption cases against Asthana. He was
transferred to Nagpur by the Agency’s
interim chief, M Nageswara Rao, soon
after the government on October 24
divested Verma and Asthana of their
respective responsibilities.
Sinha’s petition—though its contents
have the potential of undermining the
CBI, the CVC and even the Prime
Minister’s Office—has not yet been
heard by the top court, and so, there is
no bar on its publication.
It is evident that none of what the
Supreme Court had deemed “confiden-
tial” in Verma’s case has come into the
public domain, so far, by way of news
reports. So the CJI’s outburst was sur-
prising. Editors and veteran journalists
were quick to comment that journalism
thrives on investigative stories and
leaks, not just in India, but globally. The
Indian Express, through an editorial,
sought to remind Chief Justice Gogoi,
“with due respect”, of a rousing speech
he had delivered this year during the
Ramnath Goenka Memorial Lecture. He
(hadn’t been elevated as CJI then) had
quoted an article published by The
Economist which said that “independent
judges and noisy journalists are democ-
racy’s first line of defence”.
It is difficult to reconcile this
address with the chief justice’s recent
outburst against an article that many
believe was responsible reportage. It was
not too long ago that Gogoi broke estab-
lished traditions to participate in the
famous “judges’ press conference” and
hit out at the then chief justice in an
ostensible bid to protect one pillar of
democracy—the judiciary.
| INDIA LEGAL | December 3, 2018 23
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
AGREE TO DISAGREE
(Left) Senior advocate Fali Nariman
pointed out to the CJI that the
confidentiality order did not apply
to Verma’s response to the CVC;
Advocate Gopal Sankaranarayanan
ItisevidentthatnoneofwhattheSChad
deemed“confidential”inVerma’scase—
orintherelatedmatterofthemessthat
theCBIhasplummetedinto—hascome
intothepublicdomain.
Anil Shakya

24. Courts/ Starvation Deaths
24 December 3, 2018
HE recent deaths due to star-
vation of several children in
many parts of the country,
including the capital city it-
self, forced a Delhi advocate
to file a PIL in the Delhi High Court
seeking directions to the centre and the
AAP government to take steps to
address the issue. The plea, filed by
advocate Maneesh Pathak, contends
that deaths due to starvation and inci-
dents of malnutrition are more preva-
lent in families living in slums as many
of them do not have ration cards for
accessing subsidised food grains. “Mak-
ing food security conditional (on a
ration card) is a violation of the funda-
mental right to life under the Const-
itution,” Pathak has said in his petition.
The plea was initially moved by
Pathak in the Supreme Court, which on
September 7, asked him to first appro-
ach the Delhi High Court. In his PIL,
Pathak has referred to the deaths of
three minor girls in July this year, who
according to the post-mortem report
were suffering from extreme malnutrit-
ion, and contended that such cases were
on the rise in other states too. He has
claimed that often poor families living
in slums do not have ration cards due to
lack of address proof and contended
that that should not be a ground for
denial of subsidised food to them. He
has sought framing of a policy so that
marginalised sections of society receive
adequate supply of food and drinking
water to ensure that a proper nutritional
level is maintained amongst them.
As many as 56 starvation deaths have
been reported in the last four years in
India, of which 42 deaths took place
between 2017 and 2018. Jharkhand and
Uttar Pradesh account for a major
share, with 16 deaths each. Earlier this
year, activists had compiled a list of
hunger related deaths to mark the first
death anniversary of Santoshi Kumari,
who had starved to death in Jharkhand
last year. A statement issued by them
said: “This is a telling reminder of the
precarious living conditions of the
Indian poor.”
During their research, the activists
found that out of the 42 hunger deaths
in 2017 and 2018, a majority (25) of the
cases were related to the Aadhaar issue.
Further investigation revealed that out
of these 25 cases, 18 were due to loss of
one’s ration card or pension for lack of
Aadhaar linkage which is compulsory in
several states. While the remaining
seven deaths were due to individuals
being denied PDS rations or a ration
card for unspecified reasons, which are
likely to be related to Aadhaar in some
cases at least, the statement said.
Speaking to India Legal, advocate
Pathak said his main concern was that
“the government should allow the for-
mulation of a policy so that slum
dwelling families with minor children
get minimum supply of food until they
obtain their ration cards”. The Court
has asked him to implead the
Department of Social Welfare, Depar-
tment of Women and Child Welfare,
Government of NCT of Delhi in this
matter. “I will be sending notices to the
said departments soon,” he said.
Death from Hunger
TheDelhiHighCourthasissuednoticetothecentreandthestategovernmentonaPILthat
soughtdetailsofstepsbeingtakentoaddresstheissueofstarvationdeathsofchildren
By Shaheen Parveen
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
T
Thepetitionerhascontendedthatstarva-
tiondeathsaremoreprevalentinfamilies
livinginslumsasmanyofthemdonot
haverationcardsforaccessing
subsidisedfoodgrains.
LIVES CUT SHORT
11-year-old Santoshi Kumari died of starvation
in Jharkhand last year; her mother (right)

26. Courts/ Expired Medicines
26 December 3, 2018
MONG the major chal-
lenges that relief workers
faced in the aftermath of
the floods that ravaged
Kerala in August this year
was the job of sifting the
vast amounts of expired medicines that
the camps received. These were mixed
with medicines with valid dates and
volunteers had a tough time sifting the
good from the bad.
In April last year, Kolkata Police
arrested several persons in multiple
cases where expired medicines were
made to look new by replacing the label.
Police later found that three pharmaceu-
tical companies were involved in the
expired medicines racket; using special
machines, they simply erased labels that
carried the expiry date and put new
labels on them.
In 2014, a Mumbai district consumer
forum dealt with a complaint wherein a
person was sold medicines, after con-
suming which he fell ill. The district
forum imposed a fine of `30,000 on the
medical store and its licence was sus-
pended for six months by the Food and
Drugs Administration (FDA).
Till not too long, such incidents were
few and far between, but they are
spreading like a virus. Last week, the
Delhi High Court issued notice to the
central government as well as the Drug
Controller of India seeking their
response on a PIL filed by advocate
Amit Sahni to prohibit the fraudulent
sale of expired medicines as new. Medi-
cines that are past their expiry date are
considered ineffective and consuming
them, far from giving the desired
results, may end up doing the opposite.
The expiration date is basically a
guarantee of the manufacturer that says
that up to the said date, the medicine
would possess its full potency and is safe
for consumption for the illness pre-
scribed. A medicine does not always
become ineffective after it reaches its
expiry date. However, there is a possibil-
ity that after it reaches its date of expira-
tion, the medicine, if consumed, may
result in other illnesses or side effects,
which is why it is not advisable to con-
sume medicines post their expiry date.
Under the Drugs and Cosmetics Act,
1940, manufacturers have to mention
the true and correct date of expiry of the
medicine on the product itself.
In 2016, the Ministry of Environ-
ment, Forests and Climate Change had
released a notification regarding bio-
medical waste management rules which
lays down the procedure that is to be
followed while discarding expired medi-
cines. The rules specify that expired
medicines must be sent back to the
manufacturer or supplier who would
then destroy the spurious medicine by
incineration. Despite rules and regula-
tions being in place, there are numerous
incidents where expired medicines are
sold as valid over-the-counter drugs.
But, as happened in the Kolkata case,
organised gangs sell these medicines on
attractive discounts to dupe consumers.
An investigation into the matter reveal-
ed that medical stores and chemists
received just about 20 percent of the
unsold expired medicines, and thus the
accused resorted to illegal selling of
expired medicines in an attempt to
recover the costs. They had been in the
illegal business for nearly eight years
before the law caught up with them.
In his petition, advocate Sahni says
he came across a YouTube video which
showed a person erasing the original
expiry dates by use of certain chemicals
and re-stamping the medicines with a
new set of details. Alarmed at the ease
with which such crimes were commit-
A
Fatal Dosage
TheDelhiHighCourtissuesnoticetothecentreandtheDrug
ControlleronaPILthatseekstoprohibitthefraudulentand
oftendangerouspracticeofrecyclingexpiredmedicines
andpassingthemoffasnew
By Pragya Ratna
InAprillastyear,Kolkata
Policearrestedseveralpersons
inmultiplecaseswhereexpired
medicinesweremadetolooknew
byreplacing thelabel.

27. | INDIA LEGAL | December 3, 2018 27
ted, he said he filed a PIL before the
Delhi High Court against the sale of
expired drugs in an attempt to curb the
practice. Before approaching the High
Court, the petitioner had brought it to
the notice of the Ministry of Health and
Family Welfare and the Drugs Con-
troller General of India in July as they
have the authority to frame rules and
regulations in respect to the sale and
packaging of medicines. But he did not
receive any response from them, nor
was any action taken by them. It was
then that he decided to approach the
High Court.
Sahni’s petition highlights the ease
with which perpetrators are toying with
the health and well-being of the public
for their own financial gain. Citizens
suffering from serious illnesses purchase
such expired medicines, many of which
are often expensive, without realising
that they are shelling out their hard-
earned money to buy spurious stuff that
could endanger their lives.
S
ahni pleaded that the government
authorities are under “constitu-
tional obligation” to protect the
lives of citizens. To highlight the gravity
of the issue, the petition states that
“expired medications are at a risk of
bacterial growth and sub-potent antibi-
otics can fail to treat infections, leading
to more serious illnesses and antibiotic
resistance. Certain medicines have a
narrow therapeutic index and little
decreases in the pharmacological activi-
ty can result in serious consequences for
the patients”.
The current method that is being fol-
lowed to stamp the medicines with
expiry date and other information
makes it very easy to alter the date of
manufacture and other such details
because of which people motivated by
financial gain have been playing with
the health of innocent citizens by selling
expired medicines which may be detri-
mental to their health.
Therefore, the petitioner has moved
the Delhi High Court seeking its inter-
vention on this sensitive issue which
affects the health and well-being of the
general public and pleaded that the
court issue directions to the respondent
to “replace the existing mechanism of
stamping the strip of medicine with
other method viz printing etc so as to
avoid or minimise the re-use of expired
medicine by stamping afresh new
expiry date after erasing existing manu-
facturing date/expiry date/price” along
with other necessary steps to curb
the practice.
But there is a contrarian view that
many doctors hold. According to this, an
expiration date is the date at which the
manufacturer can still guarantee the full
potency and safety of the drug. A study
by the US Food and Drug Adminis-
tration came to the conclusion that 90
percent of more than 100 drugs, both
prescription and over-the-counter, were
perfectly good to use even 15 years after
the expiration date.
However, there are certain medi-
cines whose potency decreases at a rel-
atively faster pace. Medicines such as
eyedrops, liquid antibiotics and those
that are classified as life-saving drugs
should not be consumed post their date
of expiry. This is based on the premise
that any medicine which is to be con-
sumed in order to treat a fatal illness
must be consumed when it has its orig-
inal potency still intact.
There is another view that suggests
that the expiration date printed on
every bottle and strip of medicine is
just a ploy by drug manufacturers to
ensure that you keep buying new
medicines to replace the old so that
they enrich themselves. That, of course,
calls for another PIL.
UndertheDrugsandCosmeticsAct,
1940,manufacturershavetomention
thetrueandcorrectdateofexpiryofthe
medicineontheproductitself,asexpired
medicinesmayresultincomplications.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Expiredmedicationsareatariskof
bacterialgrowthandsub-potent
antibioticscanfailtotreatinfections,
leadingtomoreseriousillnessesand
antibioticresistance.”
—AdvocateAmitSahni

28. Courts/ Assets of Spouses
28 December 3, 2018
FTER issuing a circular two
months ago, the aim of whi-
ch was to keep a close watch
on the assets of judges of the
subordinate courts, the Delhi
High Court is now training its gaze on
their spouses. The High Court last week
issued a circular seeking details of the
“gainful employment of spouses of offi-
cers of Delhi Higher Judicial Service
and Delhi Judicial Services which is to
be maintained by the High Court”.
It directs 11 district and sessions
judges to compile such information in
respect of all officers under their con-
trol, and also in respect of officers who
have proceeded on deputation from
their respective districts. Judicial offi-
cers have been told to promptly intimate
any change in the status of gainful
employment of a spouse.
A similar circular in September had
sparked a row between the higher and
lower judiciary, with the latter claiming
that they were being targeted for no rea-
son. They had questioned the need for
such a directive especially when all sys-
tems were in place to check wrongdoing
on the part of anyone. This circular is
likely to further exacerbate relations,
considering that some of its clauses are
deemed very harsh.
The circular says: “Delhi High Court
orders that in cases where the Judicial
Officers, while submitting intimations
under the Conduct Rules, state that part
of the amount of a particular transac-
tion is paid by someone else, including
their spouse, parents, children, relatives,
friends, etc., or they have borrowed
some amount from any of them, they
should disclose in their intimation the
nature of employment of that person,
his/her annual income and source of
accumulation of the amount in his/her
bank account.”
The Central Civil Services (Conduct)
Rules, 1964, that govern the working of
officials in the civil services or posts that
are connected with the affairs of the
Union include judges in the subordinate
courts. Under these rules, it is mandato-
ry for judges or officers of higher ranks
to file reports about accepting gifts and
lavish hospitality, making investments
or lending and borrowing money, pur-
chasing vehicles and buying of immov-
able and movable assets as well as other
properties beyond a certain price.
India Legal tried to contact judges
from the lower judiciary. Though no one
was willing to come on record, the
refrain was that they “are being targeted
... as already they are giving intimations
as per the rules but this circular puts
them under more scrutiny”.
India Legal had reported in Sept-
ember when the last circular was issued
by the Delhi HC that sought appoint-
ment of officials from the Subordinate
Accounts Services (SAS) or those with
specialised qualification from the Insti-
tute of Costs & Works Accountants
(ICWA). This was meant to assist in
assessing reports filed by judges with
regard to movable and immovable prop-
erty, acceptance of gifts and hospitality,
foreign travel and high value transac-
tions made by them.
A retired district and sessions judge
of Tis Hazari Courts, who spoke on con-
dition of anonymity, said: “This is the
first time that these circulars are being
issued, otherwise it’s always been a nor-
mal routine exercise.” Earlier, intima-
tions were sent through the District and
Sessions Judge to the Registrar General
of the High Court, which were then for-
warded to the Vigilance Department. In
cases where there was suspicion of a
lack of integrity, internal inquiry was
ordered. What was the exception has
now become the norm.
Big Brother Is Watching
ADelhiHCcircularseekingdetailsofspouses’“gainful
employment”maytriggeranintra-judiciaryrow
By Kunal Rao
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
A
UNDER THE SCANNER
Judicial officers in lower courts say that the
latest circular puts them under more scrutiny

30. Economy/ RBI-Government Ties
30 December 3, 2018
HE ministry of finance
and the Reserve Bank of
India (RBI) recently
engaged in a dangerous
game of chicken.
Eventually, both sides
realised that “winning” or playing such
a game to its conclusion is not in the
best interest of either player. The RBI
cleverly appeared conciliatory and gave
a little on two issues that are unlikely to
impact markets, but held its ground on
the critical issues of independence and
preserving its capital reserves.
There were three issues of contention
between the government and the RBI:
The government has promised too
many things to too many people, and
now it doesn’t know how to pay for
them. Its fiscal deficit 2018-19 is
already 95 percent of the budgeted esti-
mate in just the first five months of this
year. An increase in the deficit may
adversely affect the country’s credit rat-
ing. The government asked the RBI to
transfer one-third of the roughly `10
lakh crore it shows as a surplus on its
books. The RBI prudently resisted, cit-
ing the growing risk in the banking sec-
tor and its responsibility as the lender
of last resort.
On this point, the sides agreed to
form a committee to “study” the issue of
the magnitude of the RBI surplus.
Essentially, the can was kicked down the
road past May 2019. The RBI under-
stands that getting this issue away from
the heat of the election season will allow
it to present facts to a committee and
more rational heads will recognise that
RBI’s capital surplus is a mirage.
The government wants the RBI to
provide more credit to micro, small and
medium enterprises (MSME) which
have been decimated by demonetisation
and shoddy GST implementation. The
RBI argued that the next build-up in
non-performing loans (NPAs) would be
in this sector and additional lending will
only increase the risk in the banking
system. But it has now relented and
agreed to increase credit flow to this
sector and develop loan restructuring
schemes for businesses with a credit
facility up to `25 crore.
The RBI regulates the banking sector
Temporary Truce
Thewarbetweenthetopbankandthecentrehasabated,thoughnotasinglepaisahasbeen
addedtotheRBI’sreservesinthelastfouryears.Thiscouldheraldbadtimesfordepositors
By Sanjiv Bhatia
T
COMPROMISE FORMULA
Finance Minister Arun Jaitley addresses the
Central Board of Directors of the RBI. In a meet-
ing on Nov 19, the board acceded to the govern-
ment’s request to work out a loan restructuring
scheme for small and medium enterprises
UNI

31. | INDIA LEGAL | December 3, 2018 31
to ensure that banks don’t go bust. In
March 2017, the government approved
an RBI policy which puts banks that
have high NPAs and breach minimum
capital requirements on a Prompt
Corrective Action (PCA) list. A bank on
the PCA list is restricted from further
lending. Currently, 11 of the 21 govern-
ment-run banks are on it, with six more
on the brink. Now the government
wants the RBI to relax these require-
ments and remove banks from the PCA
list so they can start lending money they
don’t have. The RBI has agreed to
reduce the minimum capital required by
banks on the PCA list by an aggregate of
`40,000 crore. Banks can now lend
against this amount and, assuming a
leverage of 10 times, another `4 lakh
crore will become available for these
banks to lend.
It appears that the government won
on two issues and the RBI on two—
essentially a convenient draw. The RBI
won the principled war on keeping its
operational independence and on pre-
serving its capital reserves. It relented
on opening up the credit spigot for
small and medium businesses and threw
a lifeline to weak government-run banks
giving them additional time to build up
their capital reserves.
B
ut if the Modi government gets
re-elected, expect this can of
worms to get reopened again. Its
most recent appointment to the RBI
Board is S Gurumurthy, an accountant
and economist. He concocted the idea of
demonetisation and convinced Modi
that a decrease in the RBI’s liability
from the unreturned currency would
release about `3.4 lakh crore from its
capital account to the government. That
didn’t pan out as only `10,720 crore of
the junked currency did not return to
the banking system. Call it coincidence,
but the amount the government wants
to grab from the RBI surplus (around
`3.3 lakh crore) is almost identical to
the surplus Gurumurthy envisioned
from demonetisation.
But does the RBI really have a capital
surplus and if it does, can it be just trans-
ferred to the government? Chapter 4,
Section 47 of the RBI Act, titled
2017-18 2016-17 2015-16 2014-15 2013-14 2012-13 2011-12 2010-11 2009-10
Contingency reserves 2321.00 2282.00 2201.00 2216.00 2216.00 1954.00 1707.00 1585.00 1533.00
CGRA 6916.00 5299.00 6374.00 5591.00 5721.00 4731.00 1822.00 1191.00 1988.00
RBI revenue 782.81 618.18 808.7 792.56 646.17 743.58 531.76 370.07 328.84
RBI expenses 282.77 306.63 149.90 133.56 119.34 125.49 101.37 86.55 84.03
Transfer to reserves 0 0 0 0 0 287.94 270.25 134.02 57.18
Transfer to government 500.00 306.59 658.76 658.96 526.79 330.10 160.10 150.09 187.59
% of profits to govt 99.99 99.99 99.99 99.99 99.99 53.40 37.20 52.94 76.63
Source: RBI
Source: RBI
Figures in ` billion
Revenue,expenses,profitsandreservesoftheRBIoverthelastnineyears
Not a single paisa has been added to the central bank’s reserves during the tenure of the incumbent government
despite a significant increase in risk in the banking system
14
12
10
8
6
4
2
0
2006 2008 2010 2012 2014 2016 2018 2020
RBI’sdecliningcapitalreserves
9.6
11.9
11.3
10.3
9.7
10.1
9.2
8.4
7.5
7.6
7.05
Rajender Kumar
Contingency + asset development reserves as a percentage of total assets

32. Economy/ RBI-Government Ties
32 December 3, 2018
“Allocation of Surplus Funds”, mandates
the RBI to transfer the profits from its
operations to the centre in the form of a
dividend. Anyone who has studied
accounting knows the difference between
profits and capital. The RBI Act requires
only that the central bank transfer its
profits to the government and not the
reserve capital built up over time.
As the nation’s bank, the RBI gener-
ates income from lending money to the
government and other commercial
banks. It also maintains deposits of
gold, foreign currency and currency
notes which are invested in global capi-
tal markets to generate income. It uses
this income for its operations and to
print new bank notes. Whatever surplus
is left is given to the government as a
dividend after setting aside reserves to
cover financial contingency.
A table shows the revenue, expens-
es, profits and reserves of the RBI
over the last nine years. In the previ-
ous five years, the RBI has transferred
`2.124 lakh crore to the government—
more than the entire previous decade.
It has also been more generous to the
Modi government than it was to the
Manmohan Singh government.
During the two terms of Singh, the
government received an average of
46.5 percent of the surplus, but the
Modi government received 100 per-
cent of the surplus.
Here is the real irony. Not a single
paisa has been added to the RBI’s
reserves in the last four years despite a
significant increase in risk in the bank-
ing system. And this has to concern
everyone who has a bank deposit.
Is the government justified in its
claim that the RBI has excess reserves?
The RBI’s reserve capital consists pri-
marily of two parts: a contingency
reserve to be used if the RBI is required
to provide liquidity to protect deposi-
tors in case of a banking crisis, and the
currency and gold re-evaluation
account (CGRA) which is the daily
gain/loss in the value of gold and for-
eign exchange it holds. As of June 2018,
there was `2.321 lakh crore in the con-
tingency reserve account and `6.9 lakh
crore in the CGRA account.
The graph overleaf shows the RBI’s
contingency reserves as a percentage of
its total assets. Shockingly, the RBI’s
contingency reserves have dropped
steadily from 2008 despite more than
doubling of the risk associated with the
NPA problem. Even if it was legally pos-
sible for the RBI to give some of this
capital to the government (it is not), is it
prudent to do so?
I
n 2009-10, with the economy grow-
ing at 10 percent, and no NPA cri-
sis, the contingency fund had `1.53
lakh crore or about 12 percent of assets.
Today, with a less robust economy and a
growing NPA crisis, the reserves are
`2.32 lakh crore or seven percent of
assets. Clearly, not the excess the gov-
ernment claims. It would be reckless for
the government to touch this amount
given the state of India’s banking sys-
tem. That would endanger the country’s
monetary stability and the life’s savings
of millions of depositors.
What about the reserve capital in the
CGRA account? This amount fluctuates
daily with the price of the gold and for-
eign exchange reserves held by the RBI.
In 2009, when gold was `1,456 per
gram, and the dollar/rupee exchange
rate was 46.3, this amount was `1.988
lakh crore. In June 2018 (the end of the
RBI’s latest fiscal year), with gold at
`3,038/gm and the dollar/rupee
exchange rate at 68.4, the value of this
account was `6.9 lakh crore.
Can the government claim this
“unrealised” gain? The only way to
realise this gain is by selling the coun-
try’s gold and foreign exchange reserves.
This would be extremely imprudent,
and from an accounting standpoint, it
makes no sense.
The RBI’s balance sheet is unlike a
corporate balance sheet because its
assets (gold and exchange reserves) sup-
port the issuing of currency. Selling
assets to capture realised gains will
require a corresponding reduction in
liabilities, i.e., currency in circulation.
The net increase in capital in the system
from this transaction would be zero. So,
if the government thinks it is getting
free money by raiding these reserves, it
is only an illusion. The only real effect
from a decrease in reserves would be to
put pressure on interest rates.
The Modi government needs to play
its hand very carefully. It appears that
the government wants to be more
involved in “managing” the country’s
monetary policy. And that is a scary
thought. Politicians and bureaucrats
always overestimate their capabilities,
but doing so at a time when the nation’s
banking system faces a severe crisis
could have a devastating impact on the
economy. Elections are not that far
away, and economics plays a big part in
how people vote. And when it comes to
economics, it is not the 56 inches of
chest but the six inches between the ears
that matter.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Thegovernment’smostrecent
appointmenttotheRBIBoardis
SGurumurthy(above),anaccountant
andeconomist.Heisthemanwho
concoctedtheideaofdemonetisation.

33. The Polish government has passed a
law that will pave the way for the rein-
statement of Supreme Court judges. The
amendment rolls back a provision imple-
mented earlier this year lowering their
retirement age from 70 to 65, prematurely
ending the terms of many.
The amendment was introduced by the
ruling Law and Justice party. In October, a
ruling by the European Court of Justice
asked Poland to put an end to what critics
called a bid to take over the country's high-
est seat of justice. Poland’s chief justice
Malgorzata Gersdorf requested 23 judges
aged 65 or above, including herself, to
return to work a few days after this decision.
| INDIA LEGAL | December 3, 2018 33
Briefs
—Compiled by Sucheta Dasgupta
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Poland rolls back
controversial reform
Thirty-five-year-old
family doctor Thet
Htwe is pushing bound-
aries while doing her bit
to make her countrymen
more enlightened and
have healthier, problem-
free lives.
Though talking about
sex is taboo in Myanmar,
the 35-year-old Muslim
woman has become one
of its leading sex educa-
tors. Travelling around
the country, she provides
classes and workshops to
students as well as cor-
porate staff on menstru-
ation, women’s rights
and sexual orientation.
Htwe’s classes, run by
her organisation, Strong
Flowers, since 2016, also
tackle sensitive topics
such as gendered vio-
lence and consent.
According to the United
Nations Population
Fund, violence against
women is a “silent emer-
gency” in Myanmar.
In Buddhist-majority
Myanmar, Htwe has also
become a symbol of reli-
gious understanding.
She says her life’s mis-
sion is to enlighten one
mind at a time.
Muslim woman
leads change in
Myanmar
Saudi Arabia is arbitrarily detaining and
torturing human rights activists, as
reported by Amnesty International. Since
May, the activists, men and women, are
reportedly subjected to torture, including
electric shock and flogging, “leaving some
unable to walk or stand properly”, in
Dhahban Prison.
AI Middle East research director Lynn
Maalouf said, “Only a few weeks after the
ruthless killing of Jamal Khashoggi, these
shocking reports of torture, sexual harass-
ment and other forms of ill-treatment
expose further outrageous human rights
violations by the Saudi authorities.” AI has
called for the Saudi government to imme-
diately release the activists and launch an
investigation into the torture reports.
Amnesty reports torture
of Saudi activists
Amember of a violent California
white supremacist group arrested
on riot charges has pleaded guilty to
assaulting protesters at a political rally in
Huntington Beach, California, in 2017
(above). Twenty-two-year-old Tyler
Laube (inset) pleaded guilty in the US
District Court in central California on
November 20 to a single count of con-
spiracy to violate the federal riots act
over his role in an attack on protesters
and others, including a journalist, at a
Make America Great Again rally in
Huntington Beach on March 25, 2017.
Laube admitted to participating in
the attack with other members of the
Rise Above Movement. The movement
has been described as a militant white
supremacist group by the protesters. In
the plea agreement, Laube admitted that
he had engaged in combat training with
the group in the months leading up to
the rally. Meanwhile, seven other
accused members or associates of the
group also face federal riot charges, over
their roles in the August 2017 “Unite the
Right” rally in Charlottesville, Virginia,
and other clashes the same year.
As a result of his plea, Laube’s prison
term, which could have been five years,
may now stand reduced. The sentencing
date has been set for March 25, the sec-
ond anniversary of the Huntington
Beach rally.
White supremacist pleads guilty