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India Legal 10 June 2019

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Retreat from Federalism
The concept of democratic federalism, introduced by our Founding Fathers, is under threat. It is being replaced by a strong assertion of a unitary and unified theocracy. Will our Republic survive this challenge? By Prof G Mohan Gopal

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India Legal 10 June 2019

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com June 10, 2019 The concept of democratic federalism, introduced by our Founding Fathers, is under threat. It is being replaced by a strong assertion of a unitary and unified theocracy. Will our Republic survive this challenge? By Prof G Mohan Gopal Retreatfrom Federalism Kolkata: Top cop on the run Britain after May: What next? STATES UNION GOVERNMENT FEDERATION
  2. 2. Catch Us Every Saturday at 8 pm and Sunday at 2 pm
  3. 3. 4 June 10, 2019 VERY time the Grand Old Party of India suffers a political setback through a split in its ranks, the break-away of a ginger group, or an electoral drubbing, its lead- ers wring their hands in agony, retreat into a studied, churlish silence and the nation reverberates with a familiar debate: Has the Congress party lost its historical relevance? Is the party, once guided by Bapu, the father of the nation, and led by intrepid stalwarts like Nehru, Patel, Bose and Rajendra Prasad, dead? Last week, as Narendra Modi and his second cabinet in a row were sworn in to govern India following a spectacular triumph in the 2019 elec- tions, the Congress with its 50-odd MPs was left licking its wounds, and the same age-old existen- tial question was doing the rounds across the country: Is it the end of the road for the party which delivered India its independence from colonial rule? Believe it or not, about five years following Independence, just before the general election, this very same question came to haunt the mighty Congress. And its leader and prime min- ister devoted an entire speech to addressing the subject in Madras way back in November 1951! Historian Mridula Mukherjee has collected and reproduced many of Nehru’s rare speeches, notes, and comments. The Congress, as it stares today into a vacuous future, would benefit from his perspicacity, as would people in all other parties. Here are excerpts which are as relevant today as they were in 1951 when the party strode across India like a colossus: The idea came into my head because some people often write in their newspapers and peri- odicals that the Congress is dead or dying and I just laughed. But when I saw those mighty crowds coming to me, I wondered who all these people were, who talked about the Congress being dead or dying? I wondered if they had any touch with the Indian people, if they knew any- thing about the people they dare to speak about. The Congress is not an electioneering device, the Congress is not a mushroom party to run for an election. Elections will come and elections will go, but the Congress will go on because the Congress has its roots in generations of work and service, and trouble and travail—because the Congress has its roots in the hearts of millions of people. I therefore came to the conclusion after long and painful thought that the Congress has a further mission, and even though the Congress may have fallen into wrong ways here and there, even though, in many local places, it was in the hands of cliques and groups, even though fac- tions had grown in the Congress which had weakened it, even though many Congressmen had become lazy and were not doing much and expected favours, yet, in spite of all this, I feel that the Congress still had a historical mission to fulfil. Therefore, I give my time and energy to it. I do so because of two reasons, one is the positive rea- son that I feel, as I said, that the Congress has that mission to fulfil, and the other is a negative SHOULDTHECONGRESSDIE? Inderjit Badhwar E Letter from the Editor EXISTENTIAL QUESTION Five years after Independence, in 1951, Nehru was faced with the same dilemma as Rahul Gandhi about whether it was the end of the road for the Congress UNI
  4. 4. reason, that there is nobody else but the Cong- ress which could fulfil that mission. Now, I have no grievance against most of the other parties in India. I just do not see why other parties should not exist. Certainly, they are wel- come. It is dangerous for the Congress or for any organisation to have it all its way. There must be opposition, there must be struggle, life is struggle, life is not ease. Any organisation, not only an individual, that has an easy time, is corrupted by it. Therefore, I like opposition, I like parties to grow up to oppose the Congress. Therefore, it is not in any spirit that I want it all in my own way. I just do not see today any group, any party in India capable of shouldering the heavy burdens of India, except the Congress. So far as I am concerned the struggle is not over with the coming of political independence, that was only one stage, one journey ended, but the real journey never ends for a nation and even for us the journey is not ended because there is so much in this country which has got to be changed, and uprooted. Nowadays as you know I often refer to the problem of communalism, etc. People often com- plain—among them are some old friends and colleagues—that by talking of communalism, Jawaharlal wishes to hide his weaknesses and failures and tries to sweep the real problem, the economic problem of the country, under the carpet. I would like to point out very respectfully that it is a totally unjustified criticism because…this is the only important problem before which every- thing else becomes rather insignificant. So, therefore, when I refer to communalism, it is because it creates obstacles in the way of solving the basic problem of removal of poverty. The individual who is communal-minded is a small man with a narrow mind who cannot un- dertake anything big; and nations based on petty principles also become small. We had become great intellectually because Mahatma Gandhi came and raised the stature of our country and widened our horizon. But there are others who come and talk of communalism whether the word ‘communal’ is used or not, the result is that we immediately shrink in size and our country also shrinks. Therefore, taking all this into account I came to the conclusion that the Congress has to go on, in spite of the weaknesses and defects which creep into an organisation that has tasted suc- cess. I do not see any other organisation capable of carrying on the process of consolida- tion and undertaking the economic tasks suc- cessfully. Having realised this fact I threw myself heart and soul into the task of reorganising the Congress. That last paragraph was probably what Atal Bihari Vajpayee, LK Advani and Murli Manohar Joshi paid special heed to when they began the Herculean task of putting their hearts and souls into reviving their party after the 1984-85 gener- al election, when the BJP was reduced to two members in the Lok Sabha while the Congress had 426 members. Is the Congress listening to Nehru? | INDIA LEGAL | June 10, 2019 5 HistorianMridula Mukherjeehas collected JawaharlalNehru’s rarespeeches, notes,and comments.Inoneof them,hesays: “Theremustbe opposition,there mustbestruggle, lifeisstruggle,life isnotease.Any organisation,not onlyanindividual, thathasaneasy time,iscorruptedby it.Therefore,Ilike opposition,Ilike partiestogrowup toopposethe Congress.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com UNIrightlog.in HERCULEAN TASK (L-R) LK Advani and Murli Manohar Joshi put their hearts and souls into reviving the BJP after the 1984-85 election when it was reduced to two members in the Lok Sabha
  5. 5. ContentsVOLUME XII ISSUE30 JUNE10,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 June 10, 2019 LEAD 12Retreat from Federalism The concept of democratic federalism, introduced by our founding fathers, is under threat. It has been replaced by regressive federalism and a strong assertion of a unitary and unified theocracy, writes Prof G Mohan Gopal 16Brotherly Price In a case relating to maintenance under the Domestic Violence Act, 2005, the apex court has asked a man to pay maintenance to his brother’s widow who was subjected to cruelty SUPREMECOURT 17Big Mess While an out-of-court settlement of a long legal battle between McDonald’s and its Indian partner is within sight, HUDCO is claiming dues of around `195 crore from the partner LEGALEYE 18Searing Troubles Delhi and Haryana have sparred over water for long but with bitter rivals ruling in the two states now, matters have gone from bad to worse, requiring judicial intervention COURTS
  6. 6. GLOBALTRENDS | INDIA LEGAL | June 10, 2019 7 REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Media Watch ..................31 Satire ..............................50 COMMERCE Plugging the Loopholes To improve the handling of cases relating to missing persons, the Delhi High Court has directed the police to allow FIRs to be promptly registered through SMS, email or WhatsApp in such instances 26 FOCUS Oil’s Well that Ends Well? A wish list to the new government would include bringing key petroleum products, alcohol, electricity and real estate within the ambit of GST and further rationalisation of GST rate slabs 22 Made in India India has finalised a new system to speed up sale of military equipment to friendly countries but it has to leap- frog to make up for years of indeci- sion in defence production and export, writes Maj Gen Ashok Mehta 28 DEFENCE Costly Mistake The NGT had to impose a fine of `1 crore each per month on 25 states for failing to submit their action plans, thus showing largescale government apathy Tumultuous Times 38 Britain saw three years of turbulence under Prime Minister Theresa May. Now that she is being forced to prematurely resign over Brexit, there is uncertainty in the offing In the Deep 42 MP chief Kamal Nath is feeling the heat after tax raids were conducted on his aides’ premises and the EC recommended a CBI probe into allegedly dubious election funding STATES Make Loss, Not Sense 46 The Kerala government’s attempt to take over a loss-making PSU even as CM Pinarayi Vijayan is touring the world to mop up resources for flood relief is a disaster in the making Hanging in the Balance As the CBI sharpens its knives against former Kolkata CP Rajeev Kumar over various allegations, he is caught between the Constitution, courts and political crosswinds 32 Slow Poison After the surprising detection of the banned Bt brinjal crop in Haryana, authorities are getting ready to undertake inspections in all the districts 34 AGRICULTURE MYSPACE What’s In a Name? A PIL filed in the Delhi High Court has sought de-registration of political parties that have religious, caste, ethnic and other connotations and use a flag similar to the national flag 20 ENVIRONMENT PROBE Respect Cadavers Too 40 A move to have CCTV cameras inside autopsy halls has been opposed by the Delhi government in the High Court, saying that it violates the constitutional rights of the dead HEALTH Fatal Fire The death of 22 students in a coaching centre in Surat was a tragedy waiting to happen as the government turned a blind eye to illegal buildings and other violations 48 36
  7. 7. 8 June 10, 2019 ““In the Sabarimala issue, communal forces came out ready to strike… But considering the res- ponsibilities vested in me, I stood in front of the defence. If that is felt as arro- gance, that...would continue.” —Kerala CM Pina- rayi Vijayan “I am writing to you to formally request you that I should be allowed a reasonable time for myself, my treatment and my health and...not be a part of any responsi- bility...in the new government.” —Former FM Arun Jaitley in a letter to PM Modi on the eve of the swearing-in ceremony, on Twitter “Congratulations on your win... Don’t get into a trap of getting popular with a sec- tion of media. It is your work that will speak. Not necessar- ily your statements.” —Actor Anupam Kher to the newly- elected MP Gautam Gambhir after he criticised the alleged assault on a Muslim man in Gurugram “I am a deadly person. There would be no bigger enemy than me if any attempt is made to impose the President’s rule by citing terror.” —West Bengal Chief Minister Mamata Banerjee at a rally of TMC workers at Naihati in North 24- Parganas, West Bengal “The Congress has decided to not send spokespersons on television debates for a month. All media channels/edi- tors are requested to not place Congress representatives on their shows.” —Randeep Singh Surjewala, in-charge of communications in the Congress, on Twitter “I promise you that to safeguard the basic values of the country and to up- hold the tradition of the ancestors of the Congress, I will not step back from sac- rificing whatever I have got.” —UPA chairperson Sonia Gandhi to the people of Rae Bareli after her victory “The Congress is in- dulging in politics... to defame and polit- ically harm Akali Dal but we had nothing to do with sacrilege. I do not fear arrest as I have done no wrong.” —SAD chief Sukhbir Singh Badal on the SIT team asserting his involvement in sacrilege cases “Rahul's offer to resign is suicidal. Opposition parties had the common goal to dislodge BJP but failed to build a national narrative. The result in a particular election can never alter the reality in as diverse and plural a country as India.” —Rashtriya Janata Dal chief Lalu Yadav on Rahul Gandhi’s decision to quit as Congress president, on Twitter RINGSIDE Anthony Lawrence Man's Best Friend RG
  8. 8. Courts | INDIA LEGAL | June 10, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team No driving licences for illiterate persons The Rajasthan High Court directed the state transport authorities to not issue driving licences to “illiterate” persons as they are “virtually a menace for pedestri- ans”. The order was passed by Justice SP Sharma while hearing a petition filed by a light vehicle motor vehicle licence holder seeking the court’s intervention in obtaining a transport vehicle licence. The petitioner said he had been driving light motor vehicles for 13 years before he sought the transport licence. The HC den- ied him relief and ordered that licences issued to him and other similar illiterate persons be withdrawn and the state authorities issue guidelines in this regard. Plea seeks regulation of religious schools The Delhi High Court issued notice to the centre on a plea seeking regulation of the education being imparted in all madrassas, maktabahs and gurukuls bas- ed in India. The petitioners said that they do not seek total abolition of these insti- tutions, but only the setting of guidelines for regulating them. The plea further said the State is enjoined under Article 14 to create a regulatory framework for these institutions so that a bright future can be created for the young individuals studying there and their job prospects secured. Avacation bench comprising CJI Ranjan Gogoi and Justice Aniruddha Bose issued notice to the centre on the question of power of authorities to arrest persons for alleged Goods and Services Tax (GST) evasion. “As different high courts of the country have taken diver- gent views in the matter, we are of the view that the position in law should be clarified by this Court,” said the bench. The bench asked the centre to submit its response within four weeks following which the case would be heard by a three-judge bench. It may be recalled that the centre had earlier moved the Court seeking a clarification on the powers of officers under the Central Goods and Services Tax (CGST) Act to arrest accu- sed persons without the filing of an FIR. GST evasion: SC to rule on arrest powers The Supreme Court stayed the Maha- rashtra government’s order on granti- ng 10 percent reservation to the econo- mically weaker section (EWS) category students in postgraduate (PG) medical admissions in the state this year. The vacation bench comprising Chief Justice of India Ranjan Gogoi and Justice Aniru- ddha Bose said: “Unless additional seats have been created by the MCI, the present seats will not be extended to the EWS category…We also kept in mind the need to bal- ance which could be im- balanced by the claim of equity if the notification is followed.” The apex court was hearing a plea seek- ing directions to the Mah- arashtra government to not implement the 10 percent EWS quota in PG medical admissions this year. This order comes even as the Court is seized of a batch of petitions challenging the validity of the Constitu- tion (One Hundred and Third Amend- ment) Act, 2019, which allows grant of quota in jobs and education to EWS. SC stays Maharashtra EWS quota The Supreme Court agreed to urgently hear a plea filed by Puducherry Lieutenant- Governor Kiran Bedi for clarity over her powers to act inde- pendently of the elected gov- ernment in the UT. On May 10, the apex court had issued notice on an SLP filed by Bedi challenging a Madras High Court order which curbed her powers to interfere in the day- to-day affairs of the UT. The Madras High Court had ruled in April that in matters of finance, administration and service matters, Bedi could only act on the advice of the council of ministers. The High Court was hearing a petition filed by Congress leader K Laksminarayanan alleging that Bedi was running a “parallel government” in Puducherry. SC admits plea on Puducherry L-G’s powers
  9. 9. ISTHAT Can a person be arrested or detai- ned in anticipation of a crime? Yes, this is done according to preventive detention laws, under which a person is arrested or detained by the police in anticipa- tion that he/she may commit a crime affecting public order, disrupting essential services to the community or threatening national security. People engaging in cross-bor- der smuggling of goods, involved in illicit trafficking of narcotic drugs and psychotropic sub- stances, black marketeering, hoarding, etc, can also be arrested under the preventive detention laws. Article 22 of the Constitution gives power to authorities for pre- ventive detention. However, the person detained must be informed about the reason within five days of the arrest. And a person can be detained for a maximum period of two years only. — Compiled by India Legal team Reasons For Preventive Detention Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What is a rent-a-cab scheme? The rent-a-cab scheme was devised by the central government—under the Motor Vehicles Act, 1988— in 1989 with the intention of regulating the busi- ness of renting motor cabs to persons who want to drive a cab for their own use or matters connected therewith. It applies to all motor cabs with tourist permits issued under the Act and operat- ing under a licence granted. No person can engage in the busi- ness of renting a cab without a licence, and it is issued or renewed by a licens- ing authority. Under the scheme, the licence is valid for a period of five years. Hire And Drive ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com What is a probate and when is it needed in India? The term probate is intrinsi- cally linked to a will that a person makes during his life- time regarding bequeathing of his property or fulfilment of a wish after his death. Probate is a will certified by a court of competent juris- diction under the Succession Act, 1925. A probate can be granted only to the executor appointed as per the will. After the probate is done, a will is legalised. The executioner of a will can apply for a probate be- fore a competent court with- in seven days of the death of the person who made the will. Once the application is submitted and verification done by the court, a notice is issued by the court to the next of kin of the deceased to find out if there are any objections to the will’s con- tent. A notice is also issued to the general public. In case there are no objections, the probate is granted by the court. Legalising A Will 10 June 10, 2019 What are the succession rights of women under the Muslim personal laws in India? Succession laws for Muslims in India are governed under two schools—the Shia and Hanafi. Under these laws, a Muslim mother can inherit property from her children in case they are independent. She will inherit one-sixth of her dead child’s property if her son has children and one-third in the absence of any grandchildren. A daughter can have half the share in property if she has no brother. She can also receive gifts from those whom she would inherit property from. A widow is entitled to have one-eighth of the share of property if she has children and one-fourth if none. The share comes down to one-sixteenth if the husband has two wives. A Muslim cannot give away more than one-third of his property by will and if there are no heirs, the wife may inherit an amount greater than the will. Property Rights for Muslim Women
  10. 10. Lead/ Federalism 12 June 10, 2019 URU MS Golwalkar, lead- ing ideologue and former head of the RSS, writes at length in his book, Bunch of Thoughts, about why the federal structure established by the Constitution is a mis- take and why a unitary state is needed in India: “Then came our present Constitution converting our country into a number of almost distinct units each with a ‘state’ of its own and all ‘fed- erated’ into one ‘Union’. When one paus- es to think of the conditions in which makers of this Constitution lived when they framed this Constitution one sees that the atmosphere then was extremely congenial to the formation and evolu- tion of a Unitary State—One Country, One Legislature, One Executive Centre running the administration throughout the country—an expression of one homogeneous solid nation in Bharat or what remained of it then. But mind and reason of the leaders were conditioned by the obsession of ‘federation of states’ Theconceptofdemocraticfederalism,introducedbyourFoundingFathers,isunderthreat.Ithas beenreplacedbyregressivefederalismandastrongassertionofaunitaryandunifiedtheocracy By Prof G Mohan Gopal G Retreat from Federalism STRONG CENTRE PM Modi with his council of ministers after the swearing-in ceremony on May 30 UNI
  11. 11. | INDIA LEGAL | June 10, 2019 13 where each linguistic group enjoyed a ‘wide autonomy’ as ‘one people’ with its own separate language and culture.... The remedy lies in rooting out all ten- dencies towards separatism, all senti- ments denying the firm faith in the one- ness of the motherland and shaking free form all words and actions calculated to produce ideas contrary to the realisation of the oneness of our national life.... Towards this end the most important and effective step will be to bury deep for good all talk of a federal structure of our country’s Constitution, to sweep away the existence of all ‘autonomous’ or semi-autonomous ‘states’ within the one State viz., Bharat and proclaim ‘One Country, One State, One Legislature, One Executive’ with no trace of frag- mentational, regional, sectarian, linguis- tic or other types of pride being given a scope for playing havoc with our inte- grated harmony. Let the Constitution be re-examined and re-drafted, so as to establish this Unitary form of Government.” Golwalkar also rejects the building blocks of democratic federalism—demo- cracy, equality and freedom—and argues in favour of monarchy: “[A]ny arrange- ment that tries to remove the inherent disparities altogether on the basis of superficial equality is bound to fail. Democracy, even at this advance stage in the Western countries, is after all, the rule by a few who are well versed in the art of politics and capable of winning the masses to their line. The concept of Democracy as being ‘by the people’ and ‘of the people’, meaning that all are equal shares in the political administra- tion, is, to a very large extent, only a myth in practice. Even to this day, dem- ocratic countries are plagued by grave social problems arising out of this basic confusion of placing system above man. The system of Democracy that they have evolved breeds two evils – self-praise and vilification of others – which poison the peace and tranquility of the human mind and disrupt the mutual harmony of individuals in society. In the present set-up both these are to be freely indul- ged in during elections. ‘We find that the monarchy, which bred such tyranny and gave rise to bloody revolutions in the West, was found to be a highly bene- ficial institution continuing for thou- sands of years showering peace and prosperity on the whole of our people, with the spirit of freedom alive in every sphere of life.” B ased on these deeply held and publicly stated ideological con- victions against federalism and democracy, it is hardly surprising that the RSS-trained BJP-led government has moved aggressively against federal- ism in the last five years and sought to move India towards a centralised, uni- tary polity. We have seen strong unilateral cen- tral intervention through demonetisa- tion and GST to accelerate economic reforms and formalisation of the POWER TO THE STATES Jawaharlal Nehru addressing the Constituent Assembly in 1946. It began with a strong concept of federalism commons.wikimedia.org Leadingideologueandformerheadofthe RSSGuruGolwalkar(left)rejectsthe buildingblocksoffederalism—democra- cy,equalityandfreedom—inhisbook BunchofThoughts(above).
  12. 12. economy to facilitate integration with the global economy. The main attack against federalism has come in the political and adminis- trative domains. There has been a con- certed effort to weaken political opposi- tion using administrative and political measures. Unfriendly state governments have been the main target. There has been an attack on civil society, which has weakened democracy, federalism, diversity and plurality. Political and so- cial discourse in the country has been censored and centralised. Through con- certed, centrally coordinated action using legal instruments as well as social media and direct street action, conten- tious topics of conversation have been virtually expunged (such as secularism, majoritarianism, minority rights, human rights, freedom of speech and expres- sion, casteism and caste discrimination, workers’ rights and patriarchy). Central and state governments of the ruling party have cracked down on academic discourse. Criticism of State action now comes at a considerable personal risk. In contrast with political and social centralisation and homogenisation there has been economic and developmental federalisation, decentralisation, deregu- lation and liberalisation. In the name of cooperative and competitive federalism, we have seen strong scaling down of the Union’s role in equitable social transfor- mation. This was seen in the closing down of the Planning Commission as well as in the shutdown of targeted Union funding for centrally-sponsored schemes that leveraged important initia- tives for democratisation of our social order. We have also seen a scaling back of central regulations of already inade- quately regulated private business in the name of federalism. It is not surprising at all that federal- ism gets the goat of conservatives. Fede- ralism is a radical idea. It is to politics what atheism is to religion. If atheism is the removal of the idea of God—a sup- reme being—from the religious panthe- on, federalism is the abolition of a sup- reme entity from the polity. Federalism is the splitting and shar- ing of sovereignty among political enti- ties, leaving no unit with supreme au- thority. It is more than mere decentrali- sation, deconcentration or devolution of power. It is the abnegation of unitary sovereignty—a rejection of the idea that for social stability, unity and cohesion, there needs to be a supreme political power with overarching power over everything. Federalism need not necessarily be democratic. When coupled with demo- cratic values—such as in our Constitu- tion—federalism is a guarantor of free- dom, equality, minority rights and dem- ocracy. It is a prophylactic against abuse of power and authoritarianism. It cre- ates democratic checks and balances and checks anti-democratic contagion. There are dangers, especially in frag- ile nations whose unity is built on the self interest of oligarchs. Federalism can unshackle and unleash centripetal and centrifugal forces. Federations can disintegrate through secession or revert to a unitary state through judici- ary centralisation. O ur Founding Fathers were bold in introducing democratic fed- eralism into our nascent repub- lic. The Constituent Assembly began with a strong concept of federalism, in- cluding vesting residual power in the states. The Partition of India while the Constituent Assembly was in the midst of its work ignited paranoia about the likelihood of further disintegration of India. This prompted a tilt towards a strong Union and an emphasis on the unity and integrity of the nation. Resi- dual power was flipped from the states (as originally intended) to the Union. Additional powers were vested in the Union. The result was a polity that the Supreme Court confusingly termed “quasi federal”. Our Constitution splits sovereignty between the Union and the states. Nei- ther has overarching power over the other. Legislative, executive and judicial powers are reserved by the Constitution to the Union and to the states. While the Union can make, modify and un- make individual states, it cannot abolish them or their exclusive powers entire- ly—India cannot be a Republic without states. Therefore the Indian Republic is a federal polity, although of a weak ra- ther than a strong variety, that started out as what some scholars would call a “coming together” confederation of a large number of relatively weak entities. However, it ended up as a “holding together” unifying federation in which the Union provides a strong centripetal force to counter any centrifugal tenden- cies that may release constituent parts from the orbit of the nation. CONSTITUTIONAL RIGHT (L-R) West Bengal CM Mamata Banerjee and TDP chief N Chandrababu Naidu have insisted that the federal structure of the country be maintained 14 June 10, 2019 Lead/ Federalism
  13. 13. ment will “send shivers down the spine” of people) and the abolition of Article 370 and Article 35-A. What we are witnessing is not simply a retreat from federalism but the emer- gence of a regressive federalism—a simultaneous retreat from state sover- eignty as an instrument of democratic social change and an expansion of state sovereignty to suppress democratic free- doms and struggles. This regressive federalism and the strong assertion of centralisation seems to be intended to undermine the consti- tutional idea of India as a modern, dem- ocratic republic and replace it with a unitary and unified theocracy. Three hundred and seven years after the death of its last great emperor, Aurangzeb, it seems that a true heir to the Mughal vi- sion of the State—as a “centralized, sov- ereign, unitary State governed by one elaborate, highly unified and systematic bureaucracy under the exclusive control of the Sovereign”—has come to power in India in 2014 (C. Sreenivasa Reddy’s 1991 Social Scientist review of Doughlas Streusand’s book, The Formation of the Mughal Empire, attributes this view of the Mughal approach to the State to Aligarh historians). We may, therefore, expect an even more intensified challenge to the demo- cratic and federal character of the Cons- titution in the months ahead. We will see efforts to push the country towards a unitary character. The question is, will our Republic survive this challenge from ancient ideas that we mistakenly belie- ved had been left behind in the dustbin of history? —The writer is former Director, National Judicial Academy, and former VC, National Law School of India, Bangalore Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com The Congress does not come to fed- eralism with clean hands. While profess- ing great love and firm ideological com- mitment to federalism, the party has had a promiscuous relationship with it. The Congress has not hesitated to un- dermine federalism by frequently dis- missing elected governments to meet short-term political ends. This started with the dismissal of the communist government of Kerala as early as 1956. The declaration of Emergency in 1975 was perhaps the most serious crisis faced by federalism in the history of the Republic. It eventually led to a backlash in the form of strengthening regional political movements. The Congress con- siderably expanded the reach and scope of the Union’s executive power. Yet, it did not vest shared sovereignty in local governments under the 73rd and 74th amendments. The 1991 economic reforms under the PV Narasimha Rao government saw the Congress shift India from the path of socialism to a market model with permanent long- term consequences for states without giving them equal voice in making that change. Overall, Union governments that have enjoyed single-party majorities have pushed back against federalism. Minority and coalition governments, especially those dominated by state leaders, have been more supportive of federalism. The Judiciary has had an ambiguous relationship with federalism. On the one hand, our courts have affirmed and protected judgments (the Bommai judgment, as well as the 2016 judg- ments on Arunachal and Uttarakhand are notable examples). On the other hand, internally, the Judiciary has interpreted the Constitution to cen- tralise appointments and transfer of High Court judges through the Collegium process. There have been efforts to also centralise all or part of the selection of subordinate court judges, including by the establishment of an all-India judicial service. G oing forward, important chal- lenges to the federal structure are likely to emanate from pro- posals in the BJP’s 2019 manifesto. These include simultaneous elections for Parliament, state assemblies and local bodies; a single, centrally contro- lled common national voter list (rather than state lists that are shared national- ly); the “free hand” promised to security forces in combating terrorism and stren- gthening central armed police forces notwithstanding state primacy over law and order; the strong-handed enforce- ment of sedition laws across the country (former home minister Rajnath Singh has promised that sedition law enforce- NO AUTONOMY Abolition of Article 370 is one of the agendas of the new BJP-led NDA government | INDIA LEGAL | June 10, 2019 15 UNI
  14. 14. Supreme Court/ Maintenance Under Domestic Violence Act 16 June 10, 2019 HE Supreme Court in a judgment relating to mainte- nance under the Domestic Violence Act, 2005, has held that the brother of a deceas- ed man can be asked to pay maintenance to his widow. The case came up before the Punjab and Haryana High Court where the brother-in-law was the petitioner. The Court held that maintenance be given to the widow by her brother-in-law. She had been staying in the ancestral property of her husband in a joint family, but after his death, she was asked to leave the matrimonial home and was subjected to cruelty at the hands of his family. Her brother-in- law, who was running a small shop jointly with her husband, used to get a profit of `30,000 a month and this was made the basis of a claim by her for maintenance in the trial court. The trial court in 2015 initially allo- wed a monthly interim maintenance of `4,000 to her and `2,000 to her chil- dren. The same order was upheld by a sessions court and later by the High Court. However, the brother-in-law appealed to the Supreme Court. The brother-in-law’s submission was that there was no basis under the provi- sion of the Act to pin liability on him to pay maintenance as he was only the brother of the deceased man. He further contended that the Court cannot furnish any lawful basis to direct him to meet the maintenance. Justices DY Chandrachud and Hemant Gupta, while upholding the order of the High Court, held that Sec- tion 12(1), Domestic Violence Act, 2005, provides that an aggrieved person may present an application to the magistrate, seeking relief under the Act. Under Section 20(1), the magistrate while deal- ing with an application under sub-sec- tion (1) of Section 12 is empowered to direct the respondent(s) to pay mone- tary relief to meet the expenses incurred and losses suffered by the aggrieved per- son and any child of hers as a result of domestic violence. The Court held that the order of maintenance was within the right of the magistrate to allow. The apex court further held that the Act defines “respondent” as any adult male who is, or has been, in a domestic relationship with the aggrieved person and against whom she has sought relief under this Act. It also said that an agg- rieved wife or female living in a relation- ship in the nature of a marriage may file a complaint against a relative of the husband or the male partner. The judg- ment further recalled the definition of “shared household” under Section 2(s) of the Domestic Violence Act. It means a household where the aggrieved person lives or at any stage has lived in a do- mestic relationship either singly or along with the respondent. Accordingly, the Court held that maintenance is liable to be paid by the brother-in-law in this case of domestic violence as per the provisions of the Domestic Violence Act, 2005. —Furkan Ahmed Brotherly Price Inaninterestingcase,theapexcourthasaskedamantopaymaintenancetohis deceasedbrother’swifefordomesticviolence T INTERPRETING LAW (L-R) Justices DY Chandrachud and Hemant Gupta of the SC passed the judgment Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TheSupremeCourtinitsverdictalsoheld thatanaggrievedwifeorfemalelivingina relationshipinthenatureofamarriage mayfileacomplaintagainstarelativeof thehusbandorthemalepartner. Anil Shakya
  15. 15. head of McDonald’s Corp, said that the termination of the franchise agreement took place as pacts had been violated and royalty was not paid for two years. Bakshi challenged the move in the NCLAT. On May 7, McDonald’s and Bakshi told the court that they wanted to opt for an out-of-court settlement. McDonald’s was to buy out Bakshi and his wife’s shares and take complete con- trol. The amount was not disclosed. Before it could happen, the state-ow- ned Housing and Urban Development Corporation Limited (HUDCO) filed an intervention application before the NCLAT, saying it had the first right over the money that Bakshi would make in the settlement as it already had an order from the Delhi bench of the Debt Reco- very Tribunal (DRT) in its favour. In 2006, HUDCO had granted a loan of `62.38 crore to Ascot Hotels and Res- orts, a private commercial venture of Ba- kshi. By 2011, the loan degenerated into a non-performing asset. HUDCO then moved the DRT. In August 2015, the DRT asked HUDCO to recover its dues along with 14 percent interest from Bak- shi. HUDCO claims that Bakshi needs to cough up `195 crore. As he did not hon- our the ruling of the DRT, HUDCO sought attachment of his bank accounts and 3,100 shares in CPRL. This plea was allowed by the DRT. The DRT has directed Bakshi not to transfer these shares and to spell out details of their value and deposit the pro- ceeds of the settlement with it. The NCLAT asked Bakshi to pay at least half the amount that HUDCO was seeking to begin with and then negotiate how the rest is to be paid. Bakshi’s counsel, Amit Sibal, inform- ed the tribunal that his client was ready to pay `70 crore as he had already paid `66 crore. Sibal pointed out that 4.65 acres of unencumbered property that was worth `300 crore was in HUDCO’s possession. However, HUDCO said that it had failed to find buyers for the land despite three attempts. A two-member bench headed by Jus- tice SJ Mukhopadhaya of the NCLAT said that Bakshi should settle the matter before the next hearing on July 10. The bench warned Bakshi that this would be his last chance to settle the matter with HUDCO and if he did not, the whole set- tlement with McDonald’s would not be allowed. The dues have to be settled by the end of June this year, the bench said. India is a huge market for fast food, estimated to be about $1.5 billion. It has the potential to grow annually by about 15 percent. That is probably why Mc- Donald’s decided to end the protracted legal battle. It would want to revamp its fast food outlets. It is reviewing the out- lets that were closed and slowly reopen- ing them in the north. Nearly 39 outlets out of 160 have reopened. Time will tell if the US food major can chew on the success of its operations after the final settlement is done. | INDIA LEGAL | June 10, 2019 17 Legal Eye/ McDonald’s Case Whileanout-of-courtsettlementof alonglegalbattlebetweentheMNC anditspartnerinIndiaiswithin sight,HUDCOisclaimingduesof around`195crorefromthepartner By Ramesh Menon TIES CUT Vikram Bakshi, McDonald’s local partner with whom it had a joint venture HERE are some noticeable changes at numerous McDonald’s outlets in north India as the company tries to give it a new look, chang- ing even the menu. This has happened as the US food major took over full ownership of its business in east and north India after buying the shares of Vikram Bakshi, its local partner with whom it had a joint venture for the last 25 years. But, it may not be as smooth and fast as McDonald’s wants it to be. Both McDonald’s and Bakshi had been locked in a legal battle for the last six years. This affected the Chicago-bas- ed company. In 1995, Bakshi had struck a deal with McDonald’s to open its out- lets in India. He had inked a 50:50 part- nership deal between his Connaught Plaza Restaurants Pvt Ltd (CPRL) and McDonald’s where his enterprise would open and manage the outlets in both northern and eastern India. However, in 2013, McDonald’s India invited Bakshi’s ire as the food major sa- cked him from the post of CPRL’s man- aging director. Bakshi started a legal bat- tle by approaching the National Com- pany Law Appellate Tribunal (NCLAT) and was reinstated by it in 2017. In the case, McDonald’s India challenged the use of McDonald’s trademark by CPRL. In 2017, McDonald’s India terminat- ed the franchise deal of as many as 169 outlets that Bakshi was running, saying it was doing so as royalties were not paid. It asked suppliers to stop dealing with CPRL. Ron Christianson, the global Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Chew on This T
  16. 16. Courts/ Water War/ Delhi-Haryana 18 June 10, 2019 ITH temperatures soaring in the north- ern parts of the coun- try, there is a corres- ponding increase in the requirement of potable water—and the national capital, Delhi, which depends on the neighbour- ing states of Haryana and Uttar Pradesh for water—has again raised its pitch for getting its share of water. The Delhi Jal Board (DJB) which had earlier approached the Supreme Court with the plea that the shortage of water was likely to affect VVIP areas, including the prime minister’s residence, has now alleged in a separate plea before the Delhi High Court that the Haryana government has put up bandhs in the Yamuna river which are leading to impediments in the flow of the river and causing high levels of pollution. To check the facts on the ground, the High Court appointed an independent committee. The committee, comprising, among others, former high court judge Justice Indermeet Kaur and amicus curiae Rakesh Khanna, submitted a report which stated that Haryana had put up at least 11 bandhs across the river. The committee said the bandhs “have defi- nitely affected the flow of water in the river Yamuna”. The committee also pointed out that apart from the bandhs, largescale sand mining was taking place in the riverbed and some of its tributar- ies. It said that mining activity was caus- ing “huge environmental damage to the flora and fauna” in and around the riverbed. The report said that Haryana had “deliberately and intentionally kept back the information regarding the details of mining site permits along the river”. Recommending the immediate removal of all the bandhs as well as keeping a check on mining, the committee said “holding back of such information shows that the state was trying to pro- vide a cover to the activities affecting not only the flow of water, but also caus- ing environmental pollution...” The committee recommended that the flow of water in the Yamuna should be monitored and suggested the instal- lation of flow meters. The suggestion was opposed by the Haryana govern- ment which sought time to file its objec- tions to the findings of the committee. The committee was formed after the DJB had filed an application in the High Court alleging that Haryana was not allowing the passage of clean water Troubled Waters Thetwohavesparredoverwaterforlong,butwithbitter rivalsrulinginthetwostatesnow,mattershavegonefrom badtoworse,requiringjudicialintervention By Vipin Pubby A CRISIS BREWS A bandh over the Yamuna; (below) pollutants in the Yamuna lead to foam W UNI
  17. 17. | INDIA LEGAL | June 10, 2019 19 into the Yamuna, making the water meant for the national capital more pol- luted. It had expressed the apprehension that it would lead to a massive water problem in central Delhi. It had claimed that the channel which supplies additional water to the Yamuna to dilute its pollution levels “had been blocked by Haryana”, and that the water being received at Wazirabad was unusable for treatment as it had high levels of ammonia. The application had said the water treated at Wazirabad was supplied to central Delhi where all major government offices, bungalows, and the Supreme Court and the High Court are located. The Board had plead- ed that if Haryana cannot control the pollutants being discharged into the river, then it should increase the clean water being supplied into the Yamuna to dilute the pollution. It had alleged that Haryana had blocked the DD-8 channel and had pointed out that obstructing any water channel attracted provisions under Section 431 of the IPC, which lays down the punishment, a maximum jail term of five years, for making any road, bridge or river impassable or unnaviga- ble. It also argued that blocking of the DD-8 channel violated the orders of the Supreme Court, to ensure the Wazira- bad reservoir is always kept full of water. T he Delhi High Court bench, com- prising Chief Justice Rajendra Menon and Justice AJ Bhambhani, thereafter gave the Har- yana government time till July 22 to file its objections to the report but directed the state to ensure that no bandhs “are created in the river”. It directed that the state government must ensure that water was supplied to Delhi “without any hindrance”. It asked Haryana to remove the bandhs immediately and also to take action against those respon- sible for putting up obstructions in the flow of the river. The court took cognisance of the alleged precondition by the Haryana government that it would release water only if the DJB withdraws all its cases regarding the issue before the courts. It disapproved of the “conduct” of Haryana in placing preconditions for release of water. As per an earlier undertaking given by Haryana, it is supposed to release 719 cusecs of water every day into the Munak Canal and 300 cusecs of water per day in the Delhi Sub Branch Canal. The undertaking was given before the court in 2014. Haryana had earlier said that out of the 1,000-million-gallons-per-day (MGD) water requirement of the capi- tal, 500 MGD good quality raw water is supplied by it through canals and 440 MGD is sourced from the Ganga river and tubewells. It had contended that only the remaining 60 MGD water, which is sourced directly from the Yamuna, contained high levels of ammonia. Thus Delhi was the largest contributor of pollution in the Yamuna, it had contended. It had recommended that Delhi should take urgent steps to reduce its losses which are alleged to be 10 percent during treatment and 30 percent post- treatment. It had contended that some losses during treatment are inevitable, “but losses to the extent as projected by the DJB are unpardonable and can even be termed as criminal wastage of pre- cious raw water”. The Delhi and Haryana governments have been crossing swords over the issue of sharing water for a long time. The issue was resolved amicably in the past due to same party governments in Haryana and Delhi over long periods. With the Aam Aadmi Party government in Delhi and its political rival the Bhar- atiya Janata Party in Haryana, the situa- tion has worsened in the past four years. Temperatures are likely to soar fur- ther until the monsoon arrives and mat- ters cool down on their own. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com twitter/@msisodia
  18. 18. 20 June 10, 2019 N his epic play, Romeo and Juliet, William Shakespeare famously said: “What's in a name? That which we call a rose, by any other name would smell as sweet.” But a Delhi advocate—Ashwini Kumar Upadhyay—does not seem to think so. On a PIL filed by him seeking to review the names of political parties, the Delhi High Court issued notice to the centre and the Election Commission of India (EC) last month. The PIL said: “Presently there are many political parties such as Hindu Sena, All India Majlis-e-Ittehadul Muslimeen, Indian Union Muslim League etc with religious, caste, ethnic, linguistic connotations. In addition, there are political parties including Indian National Congress (INC), which use a flag similar to the national flag, which is against the spirit of Section 123 of the RPA, 1951. Petitioner is filing this petition to review the political parties, registered with religious, caste, ethnic, linguistic connotations and use the flag similar to national flag, and de-register them if they fail to rename and change their flag within three months.” Consi- dering the timing—the notice was issued a day after the massive mandate in favour of the ruling BJP and near- decimation of the INC—it is obvious which political party is the target! The issue of power to de-register political parties has occupied the EC for quite some time. It was in December 2016 that the former CEC, Dr Nasim Zaidi, presented an elaborate list of elec- toral reforms to the Government of India and placed the same in the public domain. It has 10 chapters and one of them deals with “de-registration of political parties”. The document says that Section 29A of the Representation of the People Act, 1951, empowers the EC to register associations and bodies as political parties, but not to de-register them on any grounds. However, in Indian National Congress (I) vs Institute of Social Welfare and Ors (2002), the Supreme Court held that there are three exceptions where the Commission can review its order registering a political party. The first is when a political party obtains registration by playing a fraud on the Commission. It is almost a sett- led law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power of review is conferred upon it. In fact, fraud vitiates all actions. In Smith vs East Ellis Rural Distt Council (1956), it was stated that the effect of fraud would normally be to vitiate all acts and orders. In Indian Bank vs Satyam Fibres (India) Pvt Ltd (1996), it was held that the power to cancel/ recall an order which has been obtained by forgery or fraud applies not only to courts of law, but also statutory tribunals which do not have the power of review. Thus, if fraud or forgery prac- tised by a political party while obtaining a registration comes to the notice of the EC, it is open to the Commission to de- register such a political party. The second is where a political party Whatisinaname? APILintheDelhiHighCourtseeksde-registrationofpoliticalpartiesthathavereligious, caste,ethnicandotherconnotationsanduseaflagsimilartothenationalflag,unlessthey rectifytheseissueswithinthreemonths My Space/ De-registering Political Parties MG Devasahayam TARGETED AGAIN The PIL states that the Congress party uses a flag similar to the national flag I UNI
  19. 19. | INDIA LEGAL | June 10, 2019 21 changes its nomenclature of association, rules and regulation, abrogating the provisions therein conforming to the provisions of Section 29A(5) or intimat- ing the Commission that it has ceased to have faith and allegiance to the Cons- titution of India or to the principles of socialism, secularism and democracy, or it would not uphold the sovereignty, unity and integrity of India so as to comply with the provisions of Section 29A(5). In such a case, the very substra- tum on which the party obtained regis- tration is knocked off, and the Commission in its ancillary power can undo the registration of a political party. The third category would be where a registered political party is declared unlawful by the central government under the provisions of the Unlawful Activities (Prevention) Act, 1967, or any other similar law. In such cases, the power of the Commission to cancel the registration of a political party is sus- tainable on the settled legal principle that when a statutory authority is con- ferred with a power, all incidental and ancillary powers to effectuate such power are within the conferment of the power, although not expressly conferred. Parliament had deliberately omitted to vest the EC with the power to de-reg- ister a political party for non-compli- ance with the conditions for the grant of such registration. This may be because under the Constitution, the EC is req- uired to function independently and ensure free and fair elections. An inquiry into non-compliance with the conditions for the grant of registration might involve the Commission in mat- ters of a political nature and could mean monitoring by the Commission of politi- cal activities, programmes and ideolo- gies of political parties. Nevertheless, on June 30, 1994, the Representation of the People (Second Amendment) Bill was introduced in the Lok Sabha, proposing to introduce Section 29-B whereunder a complaint can be made to the High Court within whose jurisdiction the main office of a political party is situated for cancelling the registration of the party on the ground that it bears a religious name, or that its memorandum or rules and regu- lations no longer conform to the provi- sions of Section 29-A(5), or that its activities are not in accordance with the said memorandum or rules and regula- tions. However, this bill lapsed on the dissolution of the Lok Sabha in 1996. A recommendation by the Parlia- mentary Standing Committee on Personnel, Public Grievances, Law and Justice in its 61st report on Electoral Reforms–Code of Conduct for Political Parties & Anti Defection Law states: “Under Section 29(A) Representation of People Act, 1951, the Election Comm- ission of India has been given power to register political parties but the power of de-registration of political parties has not been given to Election Commission of India under that law. However, the Election Commission of India has assumed the power under para 16A of the Election Symbol (Reservation and Allotment) Order, 1968 to de-recognise the political parties in the event of viola- tion of Model Code of Conduct. The net effect of de-recognition of political party makes that party almost dysfunctional as its symbol is taken away. The Committee, therefore, recommends that the power to de-recognise political par- ties on account of violation of Model Code of Conduct may be incorporated in the Representation of People Act, 1951 itself.” Even if this recommendation is accepted and acted upon, the EC will have statutory powers to de-register political parties only for serious viola- tions of the MCC and nothing else. Hence Upadhyay’s PIL is infructuous and non est, unless there is a larger con- spiracy to finish off whatever is left of the INC as part of carving a “New India”. But with today’s EC being what it is, anything is possible! —The writer is a former Army and IAS officer IN THE NAME OF RELIGION The petition also refers to the All India Majlis-e-Ittehadul Muslimeen (AIMIM) party Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Presumably,Parliamenthaddeliberately omittedtovesttheECwiththepowerto de-registerpoliticalpartiesastheECis requiredtofunctionindependentlyand ensurefreeandfairelections. twitter/@akbarowaisimim
  20. 20. Commerce/ GST on Various Products 22 June 10, 2019 OW that the new govern- ment is on its way to starting a fresh term, the focus has turned to the urgent need for economic reforms. The previous NDA government had executed a major economic reform through the imple- mentation of GST in July 2017. In the course of almost two years of implemen- tation, a few important course correc- tions were also done to make GST effec- tive and acceptable to the people. More will have to be done. One low-hanging fruit is the inclusion of petroleum prod- ucts in GST. This will be the first step to energise the hydrocarbon sector. Other steps would be increasing third-party access to gas pipelines, easing of licens- ing requirements, etc. Petroleum products may broadly be classified into three categories:(i) Ind- ustrial fuels such as crude oil which are basic inputs for most industries; (ii) Transportation fuels like petroleum, high speed diesel, aviation turbine fuel; and (iii) Household fuels like kerosene and LPG. While industrial fuels are indisputably intermediate inputs in industry, transportation and household fuels, collectively referred to as “emis- sion fuels”, are used more in final con- sumption and to a large extent as inter- Awishlisttothenewgovernmentwouldincludebringingkeypetroleumproducts,alcohol,electricity andrealestatewithintheambitofGSTandfurtherrationalisationofGSTrateslabs By Sumit Dutt Majumder CHALLENGE AHEAD Domestic energy production needs a big boost; (above) an ONGC offshore field N Oil’s Well that Ends Well?
  21. 21. | INDIA LEGAL | June 10, 2019 23 mediate inputs as well. The entire range of petroleum prod- ucts is subject to multiple taxation in India—central excise and state VAT. Further, there is no input tax credit in the supply chain of these items. Conse- quently, the incidence of tax on products essentially used as intermediate inputs cannot be estimated, and it leads to a cascading effect on downstream prod- ucts. However, emission fuels referred to above generate negative externalities and their consumption would need to be checked. The problem is that in a large number of cases, such emission fuels are used as intermediate in industries. As a result, the cascading effect of embedded input taxes becomes significant. One possible solution suggested by econo- mists is to have dual levy of GST with the benefit of input credit as well as the traditional excise duty on emission fuels and to subject all industrial fuels to only GST. N atural gas is akin to petroleum products and derived from the same source. But unlike petro- leum products, natural gas does not generate negative externalities. The gen- eral view of economists, therefore, is that the tax regime for natural gas should be necessarily different from the one applicable to other petroleum prod- ucts, and therefore should be subjected only to GST, with the applicable benefits of input credit. When the issue of including petrole- um products came up before the empowered committee of state finance ministers, all the aforesaid arguments for their inclusion were set aside by the states basically for fear of revenue loss. At that time, the states were collecting on an average between 50 to 55 percent of their total state VAT revenue through these petroleum products. Being uncer- tain at that time about the possible rev- enue loss on this count, the centre also did not pursue the matter further and agreed to keep these out of the GST ambit at the initial stage. Later, Arun Jaitley, the Union finance minister, per- suaded the states to agree to their inclu- sion within GST in a Constitution Amendment Bill with a proviso that the date of inclusion and application of GST rates on these items would be decided later by the GST Council, which was formed as a constitutional authority for taking various decisions on GST. In the above perspective, the time has now come for the GST Council to give its nod for effective inclusion of these products in GST. Much will depend on the persuasive efforts of the finance minister in the new government. As explained before, industrial fuels like crude which are basic inputs or interme- diates for most industries may be sub- jected to GST rates in the appropriate slab to be decided by the Council. Emission fuels may be subjected to a dual levy, i.e. GST and an additional tax. By this measure, the revenue concerns can be taken care of even when the petroleum products come within the ambit of GST with full benefit of input tax credit. It may not be difficult for the new government at the centre to give a push for inclusion of petroleum products because the Congress, the main Oppo- sition party, had also promised in its CRYING FOR REFORM The entire range of petroleum products including LPG (left), and petrol and diesel (above), is subject to multiple taxation in India UNI
  22. 22. manifesto to bring petroleum products within the ambit of GST. The imposition of an additional tax on emission fuels should give further comfort in respect of revenue collections. There are other reforms needed for energising the hydrocarbon sector. India’s energy needs are heavily depend- ent on imports. Thus, the health of the Indian economy is sensitive to global conditions like the price of crude oil. It creates volatility in external balances and growth expectations. The solution can only lie in a rapid increase of domestic energy production, improving energy efficiency and encouraging substitution by locally produced energy sources. No doubt, the government has already undertaken a few important reforms in the exploration and produc- tion sector. The gas prices for new dis- coveries have been freed up; companies have been given a free hand to carve out their own blocks; importantly, the com- panies have also been offered a single licence to extract all forms of hydrocar- bons. The new government will have to take forward these reforms and add some more to it so as to encourage big investment from private and foreign investors which is yet to happen. M ore ways of easing licensing requirements will also help in expediting the pace of up- stream projects. For example, the gov- ernment may extend more marketing freedom to current commercially pro- ducing fields. Currently, another pain point is double taxation through royalty and cess; this leads to higher costs and lower investible surplus. The new gov- ernment will have to take a hard look at sorting this out. Further, in order to turn India into a gas-based economy, the government will have to enhance third party access to gas pipelines and build a gas grid and trading platform. The growth of natural gas consumption has been a paltry 1.5 percent in 2018-19, mainly because of higher price of imported gas and inade- quate infrastructure. The foregoing re- forms in the natural gas sector, particu- larly providing an effective trading plat- form, would help energise the domestic gas market. Thus, the solutions to the problems of energy reforms would lie in a rapid increase of domestic energy production, improving energy efficiency and encour- aging substitution by locally produced energy sources. There should be a natu- ral preference for domestic energy and the new government policies will need to accelerate this transition. Some of the reforms discussed above could lead the way in that direction. In addition, the government can include alcohol, electricity and real estate within the ambit of GST. Constitutionally, “alcohol for human consumption” has been kept outside GST. Article 366 (12A) of the Consti- tution has defined GST as any tax on supply of goods or services or both except taxes on the supply of alcoholic liquor for human consumption. So, inclusion of alcohol will require an amendment of the Constitution. While alcohol is demerit goods, the raw mate- rials used in manufacturing it are not. But by keeping alcohol out of GST, the credit chain for the entire supply chain for manufacturing it gets broken, and it brings in distortion. Inclusion of alcohol will rectify this default. As the process of amendment will take time, the govern- ment will have to start the process on a priority basis. Commerce/ GST on Various Products SECTORAL PUSH Bringing electricity (right) and all real estate sectors (below) including those relating to land within GST will help widen its tax base 24 June 10, 2019 Anil Shakya
  23. 23. exemption, there should not be any GST liability on the purchaser through rev- erse charge mechanism. These two sim- ple steps by way of relief from GST, which won’t have much revenue consid- eration, would go a long way in reviving small businesses. As a part of procedural simplifica- tion, the GST Council has been continu- ously bringing in changes in return for- mats. The Council had decided to have simplified return forms named “Sahaj” meant for businesses which make sup- plies only to consumers (B2C) and “Sugam” meant for businesses making supplies to both businesses (B2B) and consumers (B2C). The new return for- mats will have to be rolled out, first on a pilot basis. The finalised return format will also take care of matching of invoic- es between those of suppliers of inputs and their recipients. The process of implementation of GST has always been a “work in prog- ress”. Now, at the end of the second year of implementation, the time has come to expedite completion of important pend- ing work on GST reforms. —The author is former Chairman, CBEC, and author of GST Explained for Common Man Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com While most of the sectors of real estate like construction materials, serv- ices related to construction, sale and purchase, renting, etc, are already under GST, matters relating to land like stamp duty on transactions in real estate are still within the jurisdiction of states. Bringing of all sectors, including those relating to land, within GST will bring great relief to the real estate sector. T he next in line for inclusion in GST would be electricity which is an essential input for manufac- turing. Currently, it is within the juris- diction of states. By bringing all these within GST, its tax base would be sub- stantially widened. This, in turn, will provide the opportunity to bring down the GST rates at each slab. Another step that should be taken is further rationalisation of rates. Curr- ently, GST has four rate slabs—28, 18, 12 and 5 percent. It would be quite sensible and feasible too to merge the two GST rates of 18 percent and 12 percent into one rate in between. Once that is done, there would be three GST rates—one standard rate at 15 or 16% percent for most goods and services, one higher rate of 28 percent for demerit and luxury goods and a lower rate of 5 percent for the goods of consumption by the poor. This rationalisation will also reduce the classification disputes. As for small businesses, the benefit of threshold exemption should be extended without fetters; interstate supply of goods and services should not disentitle small business from the threshold exem- ption. Similarly, for purchases from small business enjoying threshold PRIORITY MATTERS The GST Council (above) must consider further rationalisation of GST rate slabs and give GST relief to small businesses (left) | INDIA LEGAL | June 10, 2019 25 PIB UNI
  24. 24. Focus/ FIRs/ Missing Children 26 June 10, 2019 VERY single month we have 150 reports of children who go missing. That’s a crisis because we are only 2.7 mil- lion people,” laments Jamaican child rights activist Betty Ann Blaine. She founded the Hear the Children Cry movement and swore to work with the International Centre for Missing and Exploited Children. Yet, in India are we concerned about our missing children? On an average, 174 children go missing every day and half of them remain untraced. The National Crime Records Bureau report says more than one lakh children were reported missing till 2016, and 55,625 of them remained untraced till the end of the year. Blaine’s counterpart in India, Nobel Peace Prize winner Kailash Satyarthi and his Bachpan Bachao Andolan have done much for India’s missing children. In 2012, in Bachpan Bachao Andolan versus Union of India, the Supreme Court said that if a person below 18 is reported missing, the police has to file a kidnapping offence immediately and relay the information and photograph of the child to all police units within their jurisdiction. Accordingly, an advisory was issued by the home ministry to all states and Union Territories to register FIRs in all cases of missing persons and put in place standard operating proce- dures to trace missing children. In one go, 75,808 cases were ordered to be reg- istered all over the country. In 2015, Operation Muskan was launched to trace missing children. States were directed to create children’s homes and shelters. This was quite simi- lar to Child Focus of Belgium and The Smile of the Child in Greece. However, the fact is that the situa- tion on the ground leaves much to be desired as far as proper implementation of the Court directive is concerned. In a recent case, a woman alleged inaction and delay by the police in lodging an FIR on a missing person report. Her husband went missing in August 2018 and an FIR was registered after four and a half months. The Delhi High Court was constrained to order the Delhi police to immediately register cases when such information was recei- ved through SMS, WhatsApp, emails and other means. While this will result in an increase in the number of regis- tered abduction, kidnapping and other related crimes, it will save valuable time. In fact, in 2012, the Punjab and Haryana High Court had done away with the practice of just recording a “missing report” in the daily diary regis- ters of police stations as there was no serious investigation that followed into the disappearance of persons. The Court ordered registration of cases in Punjab, Haryana and Chandigarh while deciding PILs filed by various NGOs, the Human Rights Protection Council, etc. The Court had specifically referred to a judg- ment in 2002 of the Supreme Court in Hori Lal vs Commissioner of Police, New Delhi, where comprehensive guidelines were given for investigating officers in the above mentioned case. Compare this scenario elsewhere in the world. In Scotland and in the Lanca- shire Constabulary, information on missing persons is taken very seriously and a regimen is followed in uploading their photos, searching for them through missing persons’ coordinators, finding their age, health and social media details. They have put in place a “Child Rescue Alert”. “Purple Alerts” are A Quick Fix Inapositivestep,theDelhiHighCourthasdirectedthe policetoallowFIRstoberegisteredthroughSMS,emailor WhatsAppforthosewhohavedisappeared By Rajbir Deswal E Anil Shakya LACK OF CONCERN A protest in Delhi over missing children. The police must take prompt action on complaints “
  25. 25. trace them before declaring them dead for purposes of property, shares and other issues. This period of seven years can be discounted in case of wars, geno- cides and disasters. Efforts to trace missing persons, especially girls, are over concerns that they may have fallen into the hands of human traffickers, mafias, vested inter- ests and kidnappers. But what if a per- son has gone missing of his own voli- tion? There is still a need for a law in such cases as he could have got involved in an accident, become a victim of a crime or has become incapacitated and unstable. T here can be many reasons for a person going missing—opting for a life of obscurity, having suicidal tendencies, being abused, becoming part of a cult and so on. The police will di- ther while processing a missing report into an FIR as often, the missing person is found or returns home within a few hours. In such cases, the efforts of the police go waste. They don’t realise that as they dilly dally, the missing person may have been kidnapped or trafficked. Loss of time also means that valuable evidence will get lost and the victim could be subjected to violence or killed. The advisory by the home ministry clearly states that in case a missing child is not recovered within four months from the date of filing of the FIR, the matter may be forwarded to the Anti- Human Trafficking Unit in each state in order to enable them to take up a more intensive probe regarding the child. Advocate Amit Chaudhary (Fateha- bad) of the Punjab and Haryana High Court lays stress on employing technolo- gy to trace missing persons. “It should also be made mandatory and incumbent on the part of guardians and keepers of people likely to go missing—those vul- nerable for reasons of health, ailment or any other cogent reason—that they take adequate precautions while taking care of them.” He added: “The guardians of such vulnerable persons should have a navigation chip put in the clothes, shoes, bracelets, rings or any appropriate en- semble of the person.” That would save them and others a lot of trouble and worry. —The writer is a retired IPS officer of Haryana and a practising advocate | INDIA LEGAL | June 10, 2019 27 issued in cases where the victim is suf- fering from Alzheimer’s and dementia. In America, eight million people go missing on an average every year. In the UK, the number touches 2,50,000, in Canada 60,000 and in Australia 38,000. Interpol also issues a “Yellow Notice” for tracing missing people through its International Missing Per- sons Database. The US Department of Justice has a “clearing house” in its Nat- ional Missing and Unidentified Persons System to find victims of disappearance. Other groups in Scotland working in identifying and tracing missing persons include Breathing Space, The Samari- tans, Barnardos and Children 1st. At most of the places, there is a com- mon belief that unless 24 hours have passed a person is not considered miss- ing. But latest court orders have clarified that it is no longer so and valuable time in finding the missing person should not be lost. Hence, registration of FIRs by SMS, WhatsApp, email, etc, has been put in place with immediate effect. In the case of those not found for seven years, genuine efforts should be made to Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “Itisawatershedmomentnotonlyinour fightinrestoringchildhoodbuthasalso broughtafreshleaseofhopetomissing childrenandtheirhaplessparents.” —KailashSatyarthi,childrightsactivist,on winningacaseintheapexcourt STRONG COMMITMENT Children rescued under Operation Muskan in Uttar Pradesh Twitter
  26. 26. Defence/ Military Sales 28 June 10, 2019 N January 2019, Ajay Kumar, Secretary, Defence Production, said that by the end of 2019, defence exports will touch `10,000 crore. A similar forecast was made by the late defence minister, Manohar Parrikar, when he said that the volume of defence sales would increase to $2 bn (`10,000 crore). In April 2018, minister of state for defence Subhash Bhamre revised the defence export target to $5 bn (`35,000 crore) by 2025. The draft Defence Production Policy 2018 indi- cates that it plans to boost export of defence equipment to $5 bn by 2025 through vigorous marketing, offering lines of credit to buyer countries, estab- lishing a defence export organisation and jointly with industry, easing export clearance. But to increase dramatically from current levels of approximately $330 mn to $5 bn in seven years is ask- ing for the moon. For this, India would require a mammoth organisation, capacity and technology, especially when export promotion for the present is lim- ited to defence public sector undertak- ings/ordnance factories. Only if the gov- ernment provides from its growing for- eign exchange reserves low-cost capital to defence exporters from the private sector will production and export get the right stimulus. Limiting arms sales to the privileged public sector is unfair and avoidable discrimination. The strategic partnership (SP) model to encourage private sector players was approved by the Defence Acquisition Council, the highest decision-making body in the Ministry of Defence (MoD), in May 2017. Only four segments will have players from the private sector— submarines, single engine fighters, heli- copters and armoured carriers/tanks. The manufacture of submarines and armoured carriers was kept open to the public sector as well, thereby diluting the rationale of the SP. Restricting industrial majors to single segments is a negative provision for players like Lars- en & Toubro, Tata, Reliance, Bharat Forge and Mahindra as these companies have multiple interests. The selected SP will be co-opted for negotiations with foreign original equipment manufact- urers (OEMs) for production in India. Partnerships or tie-ups between SPs and OEMs may take the form of joint ventures, equity partnerships, tech- nology sharing, royalty or any other Asking for the Moon? Indiahasfinalisedanewsystemtospeedupsaleofmilitaryequipmenttofriendlycountriesbutit hastoleap-frogtomakeupforyearsofindecisionindefenceproductionandexport By Maj Gen Ashok Mehta I UNI THE CYNOSURE OF ALL EYES The advanced Brahmos supersonic cruise missile is test-fired from Car Nicobar Island
  27. 27. PSUs and Ordnance Factories Board (OFB) at present. After its working sta- bilises, the SOP will be extended to pri- vate sector companies producing defence equipment,” said an official from the MoD. The SOP will apply to countries like Vietnam and Bangladesh which have received $500 mn each as LsoC. India’s modest defence exports were mostly non-lethal equipment, but now include offshore patrol vessels, helicopters and most recently, fighter aircraft and missiles. Some of the export destinations have been Italy, the Mal- dives, Sri Lanka, Russia, France, Nepal, Mauritius, Israel, Egypt, UAE, Bhutan, Ethiopia, Saudi Arabia, Philippines, Poland, Spain, Chile, Bangladesh and Vietnam. India is also producing desi Bofors (Dhanush) at the OFB Gun Carriage Factory, Jabalpur, developed from blue- prints supplied by Bofors in the 1980s when India bought 400 Bofors guns from Sweden. In addition, the Brahmos supersonic Cruise missile produced in collaboration with Russia, the Akash surface to air missile systems, the advanced towed artillery gun system being manufactured by L&T and Tata and Dhanush will be available for export probably a decade later after domestic inventories have been filled. India is no longer the world’s largest arms importer which is now Saudi Arabia. In 1994, a government committee under Dr Abdul Kalam had pledged to convert the 70:30 ratio of imported to indigenous equip- ment to 30:70 within 10 years. This tar- get has not been met till today when India’s indigenous content of defence equipment is around 40 to 45 percent and that too in selected equipment. I ndia has never been a recognised defence arms exporter. In the early days, arms sales were considered immoral. It is instructive to look back at the history of the defence industry in India. The first modern gunpowder and gun carriage factories were established by the East India Company in 1787 and 1811 in Ichapur and Calcutta, respective- ly. The Ichapur factory was converted to the manufacture of rifles in 1902. The expansion and development of this inf- rastructure was not pursued in earnest for moral and political reasons after independence. Result? Except for a sub- standard rifle, no other lethal equip- ment was produced. The story of the incompetent Self Loading Rifle (SLR) is as well known as the development of the Arjun tank, a white elephant. Despite HF 24 Marut aircraft being manufac- tured in India, no Indian designed fight- er, trainer or transport aircraft was developed for some time. The exception to this unfortunate trend in the Army and IAF was the Navy which had invest- ed in ship design and building warships, but it too had to import guns, missiles and torpedoes for its vessels. Although India has one of the biggest military industrial complexes among developing countries, the amount of defence exports is compara- tively negligible. The sale of defence | INDIA LEGAL | June 10, 2019 29 mutually acceptable arrangement subject to ownership conditions laid down by the MoD. By capping FDI in SP at 49 percent, the government has discouraged inflow of advanced tech- nology. Overall, the government has played into the hands of public sector interests, defeating the idea of competi- tion and a level playing field for private sector companies. The figures of defence exports vary significantly and are befuddling. This is not surprising given the lack of statisti- cal authenticity of government figures witnessed recently on jobs, GDP and so on. According to one source, from 1959 to 2016, the average defence exports were as low as $13.10 mn with it cap- ping at $56 mn in 2017 and being zero in 1987. MoD figures also vary from `1,100 crore in 2013-14 to `2,060 crore in 2016-17 and from `4,940 crore in 2015 to `5,797 crore in 2017. Be that as it may, India has decided to boost defence sales to neighbourhood coun- tries like Bangladesh, Sri Lanka and Myanmar through Letters of Credit (LsoC) which remain unutilised. “The SOP is being operationalised for defence IndiaisalsoproducingDhanush(below), attheOFBGunCarriageFactory, Jabalpur,developedfromblueprintssup- pliedbyBoforsinthe1980swhenIndia bought400BoforsgunsfromSweden. Youtube
  28. 28. equipment being manufactured by DPSUs, OFBs and the private sector is regulated by the MoD in consultation with the Ministry of External Affairs and implemented by the Director General, Foreign Trade. There are alto- gether 41 ordnance factories, eight DPSUs and around 50 private sector companies. India is the 28th arms exporter by volume. Its ratio of imports to exports was a staggering 194 to 1 while it is 1.3 to 1 for Israel, 8.8 to 1 for South Korea and 19.7 to 1 for Singapore. India accounts for a princely 0.8 percent of total world defence exports. India organises Defexpo (defence exhibition) to attract global vendors of military equipment once every two years in February. It used to be held in Delhi till 2014 when it was moved by Parrikar to Goa, his home. Later, Defence Mini- ster Nirmala Sitharaman took it to Chennai, Tamil Nadu. At the Defexpo last year, Prime Minister Narendra Modi spoke about his vision for the defence industrial complex, which included defence corridors in Uttar Pradesh and Tamil Nadu. Modi talked about a strategically independent defence industrial base that would make in India, make for India and export from India. The MoD has to convert Modi’s vision into defence manufactur- ing and sale after substituting for import. Defence attaché have been asked to market Indian defence equip- ment. Still, for the present, this will not be easy. India’s defence budgets have been the lowest in the last five years as a per- centage of GDP, hovering between 1.49 to 1.59 percent, with peanuts for R&D. Defence allocations have gone against all recommendations of Defence Parliamentary Standing Committees and Finance Commissions which have suggested up to three percent of the GDP. But in the last three decades, it has not crossed two percent of the GDP. Only in the mid-1980s was the defence budget an impressive 3.5 percent of the GDP when the country’s military capa- bilities and deterrence were of high order, sufficient to shape India’s strate- gic periphery. Till there is substantive investment in R&D, defence production and exports will be limited. W orldwide, the defence indus- try survives on defence exports. India has historically been a laggard in developing its military industrial complex, the impediments to which have been moral principles, non- alignment, complex export procedures, negative lists, pricing, quality of prod- ucts and licence production minus tech- nology transfer. Nepal which is a captive recipient of virtually gratis arms trans- fers was also a key complainant about the quality of the Indian SLRs and advanced light helicopter. Both these were used by the Nepal Army in its civil war with the Maoists a decade ago and there was no end to criticism of their effectiveness. The HAL-made ALH was bought by Chile and two of the helicop- ters crashed. But since then, HAL has moved on and is competing with the China-Pakistan manufactured JF-17 and South Korea’s F/A 50 to sell LCA Tejas to Malaysia. But it is the Brahmos which is the cynosure of all eyes. Indonesia and Vietnam are countries seeking it, though since it is a joint venture with Russia, Moscow’s green light is essential. This may not be forthcoming in the altered geo-strategic environment where Russia, China and Pakistan are in the same camp. India has to do both a pole vault and leap-frog to make up for years of indeci- sion in defence production and export. The final word on arms sales will be determined by the quality, reliability and cost of products that will mesh into the man-machine mix. —The writer has fought in all the wars after 1947 and was Commander of the IPKF (South) in Sri Lanka Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com BOOSTING DEFENCE Former Defence Minister Nirmala Seetharaman at the Defexpo in Chennai; (above) a gun carriage factory in Jabalpur 30 June 10, 2019 Defence/ Military Sales Facebook
  29. 29. | INDIA LEGAL | June 10, 2019 31 Media Watch Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com I t’s time for the other Doval, National Security Adviser Ajit Doval’s son, Vivek, to come under the spotlight. He is cur- rently at the Patiala House Courts, fighting a defamation case he filed against Cong- ress leader Jairam Ramesh, The Caravan magazine and journalist Kaushal Shroff. The magazine had published an article provocatively titled “The D Companies” which was later quoted in a press confer- ence by Ramesh. The article says that Vivek’s business is linked inextricably to businesses run by his brother, Shaurya Doval, a BJP politician who heads India Foundation, a think-tank enjoying close proximity to the Modi gov- ernment. It also pointed out that Vivek runs an offshore hedge fund based out of a tax haven and this is notable in the light of the established public position taken by his father. In 2011, Ajit authored a report that advocated a strict crackdown on tax havens and offshore entities. Vivek, a char- tered financial analyst and citizen of the UK who resides in Singapore, is the director of the hedge fund, named GNY Asia Fund. In his deposition before the court, Vivek said that “what really disturbed me was the title of the article ‘The D Companies’.” He revealed that the article had damaged his professional reputation. He told the court that he was “shocked how random facts, incorrect facts, insinuations, innuendos had been pieced together to give an ex- ceptionally misleading picture about myself and my family,” and mentioned that in India, ‘D Companies’ refers to the Dawood companies, whose protagonist is an inter- national terrorist. The article also men- tioned the coincidence between the regis- tration of his hedge fund 13 days after demonetisation—the fund was registered in the Cayman Islands on November 21, 2016. Vivek added that his father has no relationship with any of the companies he set up. The case is ongoing. The Other Doval W hat was lost amidst the lofty senti- ments and advice given by Prime Minister Narendra Modi during his address last week to over 300 BJP MPs in Parliament’s central hall were his warnings about dealing with the media. Whenever the subject came up, it was clear that he considers the media an obstacle in the path of the government. Despite the fact that a majority of the conventional media was overtly pro-Modi, he warned first-time MPs about the booby traps laid by the media. He said that often, while question- ing MPs and politicians, it performs the role of a desta- biliser by blowing up remarks or quoting them out of con- text. His advice to all MPs was to steer clear of contro- versies and not allow them- selves to be “seduced” by media. His exact words were: “God knows what magic lies in the TV boom that mouths open on their own, and words pour out that keeps their (media’s) business thriving and puts the party in trouble.” He could have been referring to Pragya Singh Thakur’s controversial remarks on Nathu- ram Godse, or Maneka Gandhi’s state- ment to those who would not vote for her. Modi’s favourite label for the media was “seductress”. Modi also warned MPs ab- out falling for the “off-the-record” interview ploy. He emphasised that nothing spoken to the media ever remains “off the record”. He also warned about technology and hid- den devices that could record private con- versations. The message clearly explains why his shunning of the media continues— even during a press conference. Modi on the Media I t’s become normal practice for governments to unleash their attack dog—the Enforcement Directorate—on media houses that write critically on any aspect of governance. It started with NDTV and the latest is Raghav Bahl, co-founder of the news por- tal The Quint. The issue, which has been highlighted by one par- ticular business news channel, BTVI, concerns a property Bahl purchased in London. Bahl says that “Every transaction has been fully disclosed and assessed to tax, fully financed through legiti- mate LRS payments via banking channels, along with permitted mortgage funds overseas.” What is intriguing about the case is that without having rece- ived any summons or notice from the Income Tax Department, two prosecution cases have been reg- istered against Bahl in the court of the Chief Judicial Magistrate in Meerut. These cases were filed and registered on May 3, 2019, and Bahl is still to receive any notification on the cases. He says he did receive a showcause no- tice which seeks information with regard to a property in London worth £2.73 lakh (`2.45 crore approximately). He says the entire funds invested in that property have been remitted through bank- ing channels under the scheme approved by the Reserve Bank of India. Bahl’s Quint is a highly credi- ble portal which also has a section that exposes fake news, and being a respected financial jour- nalist, he is often critical of the government’s economic policies. Taxing Times
  30. 30. Probe/ IPS Officer Rajeev Kumar N May 26, when a black SUV glided to a halt, Park Street in the heart of Kolkata was ablaze with cameras and news report- ers. Inside sat four officers of the CBI, faces like granite. If Bollywood made one believe that intelli- gence officers are mysterious people working on secret operations, they bust- ed the myth. Everyone prowling for a scoop knew they were out to arrest Rajeev Kumar, the most famous cop in India right now. It was almost an action replay of the CBI’s last attempt to meet Kumar on February 3. Except their team was then 40-member strong. And this time around, they faced no scuffle or clash. West Bengal chief minister Mamata Banerjee did not hit the streets or cry “unconstitutional” in support of her top cop. If the CBI had no search warrants the last time, now they were armed with papers summoning Kumar to their Kolkata office on May 27. But in a dra- matic end to a volatile episode, the offi- cers failed to find the man. Kumar was missing in action. Just as one thought the high-voltage headlines over Kumar were over, they seem to have started again. For four days Kumar was incommunicado. He did not respond to phone calls. He did not present himself at the CBI office. Instead, two state CID officers bore his letter to the agency, seeking seven more days on personal grounds. Was he in Varanasi? The CBI issued a Look Out Circular at all airports and international borders. So what if a Vijay Mallya or Nirav Modi slipped through? The for- mer commissioner of the Kolkata police had to be nabbed. Kumar finally emerged on May 30, to move the vacation bench of Justice Protik Prakash Banerjee, Calcutta High Court, for quashing the CBI notice. The bench mandated that Kumar would have to cooperate with the CBI. The agency could question him at his home—every day, if necessary. No third party would be allowed and no arrest by the CBI—at least, not until June 12, when a regular bench would take over. And, yes, his passport would be confis- cated. Kumar’s counsel, Sudipta Maitra, said, “CBI has already questioned him for 39 hours and 45 minutes. There is no FIR or charge sheet in his name.” Hence, the Court extended the interim protection from arrest. In reality, Kumar is in no man’s land, caught between the Constitution, the courts and political crosswinds. The 1989-batch IPS officer had arrested Sudipta Sen, the Saradha scam kingpin, in 2013 and led a special investigation team of the West Bengal government until the Supreme Court (SC) trans- ferred the cases to the CBI in May 2014. That put him at the centre of an ongo- ing stand-off between the CBI, the rul- ing NDA and the Trinamool Congress in West Bengal. At work is a power strug- gle that underscores the rocky and unpredictable nature of India’s political transition. At stake is an individual, a point of reference. Rajeev Kumar, the charming and handsome 53-year-old Roorkee engi- neer, is a cyber geek—a work that endears him to whichever political boss rules the day. It also makes him an enemy of their enemies. Former CM Buddhadev Bhattacharjee’s blue-eyed boy once, he has been called “the best of Top Gun on the Run AstheCBIsharpensitsknivesagainsttheformerCPoverallega- tionsofevidencetamperingandnon-cooperation,heiscaught betweentheConstitution,courtsandpoliticalcrosswinds By Damayanti Datta in Kolkata O TheCBIsummonedKumartotheir KolkataofficeonMay27,buthedidnot showuporrespondtocalls.ALookOut Circularhasbeenissuedagainsthimat allairportsandinternationalborders.