Overdue Reform An All-India Judicial Service will enhance productivity, and quality of services at the district level would improve dramatically, says Prof Madhava Menon

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4. HEN India Legal recently ran a
story on remarks made by Attorney
General KK Venugopal warning
about the dangers of spreading the
doctrine of “constitutional morali-
ty,” little did we realise that the subject would give
rise to a heated debate—within the covers of this
magazine—between some of the leading intellectu-
al luminaries of this nation.
Pratap Bhanu Mehta has penned a superb essay
elsewhere on this subject asking simply, what is
constitutional morality? He explains that the
phrase “rarely crops up” in discussions within
India’s Constituent Assembly. “Of the three or four
scattered uses of the phrase, only one reference has
any intellectual significance. This is, of course,
Ambedkar’s famous invocation of the phrase in his
speech, ‘The Draft Constitution’, delivered on 4
November 1948.” In the context of defending the
decision to include the structure of the administra-
tion in the Constitution, he quotes at great length
the classicist, George Grote. The quotation is worth
reproducing in full:
“The diffusion of ‘constitutional morality’, not
merely among the majority of any community, but
throughout the whole is the indispensable condi-
tion of a government at once free and peaceable;
since even any powerful and obstinate minority
may render the working of a free institution
impracticable, without being strong enough to con-
quer ascendance for themselves.”
What did Grote mean by “constitutional morali-
ty”? Ambedkar quotes Grote again:
By constitutional morality, Grote meant… a
paramount reverence for the forms of the constitu-
tion, enforcing obedience to authority and acting
under and within these forms, yet combined with
the habit of open speech, of action subject only to
definite legal control, and unrestrained censure of
those very authorities as to all their public acts
combined, too with a perfect confidence in the
bosom of every citizen amidst the bitterness of
party contest that the forms of constitution will not
be less sacred in the eyes of his opponents than
his own.
Andre Beteille argues in a book that constitu-
tional morality is important for constitutional laws
to be effective. “Without constitutional morality,
the operation of a constitution tends to become
arbitrary, erratic, and capricious.” According to a
review in Oxford Scholarship Online, he makes a
distinction between “constitutional democracy” and
“populist democracy”. He says democracy has sur-
vived in India by moving away from the ideal of a
constitutional democracy towards a more populist
form. It looks at the Emergency of 1975-77 to show
the connection between anarchy and the abuse of
power as two forces that are both antithetical to
constitutional morality. He also examines the link
between constitutional morality and the principle
of civil disobedience, which under the leadership of
Mahatma Gandhi became the cornerstone of
India’s nationalist movement.
In a recent edit in this magazine, we referred to
the most recent judicial pronouncements on this
subject. Immediately after donning the mantle of
chief justice of India, Justice Ranjan Gogoi offered
some clue as to what the Supreme Court under him
would be like. His priority, he declared, would be to
focus on the vast backlog of cases and filling judi-
cial vacancies. Those, however, are largely adminis-
trative in nature requiring strict discipline, qualities
he is well known for. What assumes much greater
importance was his attempt to revive a national
conversation on “constitutional morality”. Stating
that people are divided “more than ever” along the
lines of caste, religion and ideology, Justice Gogoi’s
core message was that judicial beliefs must be con-
tinuously evaluated on the touchstone of constitu-
tional morality. He defined “true patriotism to the
Constitution” as adherence to constitutional moral-
ity. For most people inured to political venality and
muscular majoritarianism, that objective may seem
utopian but viewed in the context of recent judg-
ments by the highest court in the land, it is
extremely significant.
IS THE CONSTITUTION
MORAL?
Inderjit Badhwar
Letter from the Editor
W
4 January 21, 2019
JusticeRanjan
Gogoiattempted
toreviveanational
conversationon
“constitutional
morality.”Hiscore
messagewasthat
judicialbeliefs
mustbe
continuously
evaluatedonthe
touchstoneof
constitutional
morality.The
objectiveis
extremely
significantinthe
contextofrecent
judgmentsbythe
SupremeCourt.

5. Under his predecessor Chief Justice Dipak
Misra, the Supreme Court had struck down Section
377 of the Indian Penal Code, saying it was uphold-
ing “constitutional morality” and not “majoritarian
morality” while deciding to decriminalise homosex-
uality. The verdict overruled a previous judgment
which held that only a small number of people
were exercising their rights. As the former CJI said
later at a conference of law students, “it’s not the
number that determines the right. A right permis-
sible under the constitution is a right that has to be
respected”.
That right was also witnessed in the Supreme
Court ruling on Sabarimala to allow women into
the temple. It was seen as correcting a discrimina-
tory social and religious practice that was violative
of Part III of the Constitution. Constitutional
morality basically rejects the transactional view of
the Constitution or majority opinion which is the
key to managing a vast country like India with its
diversity of cultures, communities, castes, religions
and customs.
B
ut when Venugopal recently asserted that
judicial reliance on this concept could upset
the separation of powers doctrine and sabo-
tage the right of the legislature to make and enforce
laws, Professor Upendra Baxi, among the tallest in
the firmament of legal luminaries wrote in India
Legal: “Courts are constitutionally mandated to
adjudicate matters which raise competing con-
tentions regarding core human rights. Constitu-
tional morality contains a set of goals and methods
by which to address these conflicts. The apex court
has never said that all public policy always offends
constitutional morality, but only that the courts
must choose the latter when the two are in visible
conflict. The dialectic between public morality and
constitutional morality serves well the promotion
of constitutional good governance and the produc-
tion of constitutionally sincere citizens. I hope that
my good friend Venu {KK Venugopal} finds ample
scope for re-examination of his current expostula-
tions and exhortations.”
In this issue we carry yet another article, posed
as a set of questions by none other than the venera-
ble and redoubtable Prof Madhava Menon whose
legal scholarship is also an international phenome-
non. I reproduce here his concluding statement:
“The issue to my mind is not the importance or
relevance of the concept of Constitutional Morality
in working out the provisions of the Constitution.
Rather, it is about the use and abuse of the doctrine
in constitutional decision-making. No doubt,
democracy as a system of governance may not serve
the constitutional goal always. That is a price socie-
ty has to pay for accepting a democratic form of
government and polity. The remedy for preventing
majoritarian excesses lies more in cultivating the
natural sentiment of people for maintaining
Constitutional Morality (as Dr Ambedkar seemed
to think) rather than in showing ‘less deference to
the legislature’ in the matter of constitutional val-
ues as some judges seem to think. The ugly conse-
quence which resulted in forcible enforcement of
the Supreme Court judgment in Sabarimala by a
government controlled by a party of ‘non-believers’
cannot be dismissed as a conflict between public
morality and Constitutional Morality. It is indeed a
portent of what the attorney general believed to be
the possible outcome for rule law and democracy
if Constitutional Morality turns out to be yet anoth-
er tool beyond ‘Basic Structure’ for exercising judi-
cial power.”
Pratap Bhanu Mehta’s brilliant scholarship on
this topic shines as he argues in what could be the
defining statement on the issue—that the Indian
Constitution was made possible by a constitutional
morality that was “liberal at its core”. Not liberal in
the “eviscerated ideological sense”, he continues,
but in the deeper virtues from which it sprang: “An
ability to combine individuality with mutual
regard, intellectualism with a democratic sensibili-
ty, conviction with a sense of fallibility, deliberation
with decision, ambition with a commitment to
institutions, and hope for a future with due regard
for the past and present.”
| INDIA LEGAL | January 21, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
CRUCIAL
VIEWPOINTS
(Above left) Pratap
Bhanu Mehta’s
brilliant scholarship
on constitutional
morality is significant
to understand the
concept; Andre
Beteille has made a
value-added
distinction between
“constitutional
democracy” and
“populist democracy”

6. ContentsVOLUME XII ISSUE10
JANUARY21,2019
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6 January 21, 2019
14Long Overdue Reform
With the introduction of the All India Judicial Service, the quality of services at the district
level will improve remarkably, says legal luminary Prof NR Madhava Menon
LEAD
18Political Puppet
The sacking of CBI Director Alok
Verma shows that the central
investigation agency will continue to be
a caged parrot squawking the tune of
its political masters
INVESTIGATION
22Questionable Quota
Parliament has passed a constitutional
amendment bill introducing 10 percent
reservation for the economically backward
classes. Is it legally tenable?
FOCUS

7. | INDIA LEGAL | January 21, 2019 7
Trump and
Tragedy REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Illustration & Design:
ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
Delhi Durbar ...................12
Media Watch ..................49
Nearly a million US government workers are
being held hostage by the president’s
attempts to extort $5.7 billion from Congress
to build a border wall with Mexico
48
Above All Suspicion
The MP High Court dismissed the petitions of two advocates
complaining they were not appointed district judges as they had
faced criminal prosecution though they had been acquitted
30
Telecom Web
RCom’s attempt to pay Ericsson
for its services with a plan to sell
airwaves to Reliance Jio has led
to a triangular contest and a
stalemate in the Supreme Court
GLOBALTRENDS
COMMERCE
OPINION
Another “Surgical Strike”? 42
The Punjab & Haryana High Court has slammed the municipal authorities for
failing to curb “green” encroachments in residential areas in Chandigarh
Misplaced Priorities
Instead of spending its scarce resources
on education and healthcare, the UP
government is building gaushalas for
abandoned cattle and levying cess on it
Proceed
With Caution
Eighteen months after GST was
introduced, two big issues—drop
in compliance rate and revenue
shortfall—are causing jitters. Some
corrective steps are proposed
Sparring
Over Spas
Points to Ponder
In a sternly worded judgment, the
Madras High Court has warned
the Chennai police against treating
all spas as illegal brothel houses
Prof NR Madhava Menon sparks off a new debate by mulling the
idea of constitutional morality espoused by the Supreme Court
28
34
38
A Watery Mess 40
The National Green Tribunal has
pulled up the centre for a notification
on extraction of groundwater, calling
it unsustainable
ENVIRONMENT
STATES
COURTS
COLUMN
26
Murders Most Foul
The apex court has asked the CBI if there is a
common link to club the probes of the Gauri
Lankesh, MM Kalburgi, Narendra Dabholkar
and Govind Pansare killings. But their families
prefer that the SIT investigation carry on
CRIME
On the Job
The Supreme Court Collegium has recommended two
more names for elevation as justices of the apex court,
taking its total strength to 28
SUPREMECOURT
25
32
46

8. 8 January 21, 2019
“
RINGSIDE
“If you get a chance,
visit the old city area
in Jaipur. Idols in
temples...are crying
as no puja can be
conducted. No prop-
er rituals can be car-
ried out...people
throw bones and
meat within temple
premises....”
—BJP MLA from
Udaipur Gulab
Chand Kataria
urging Hindus to
unite in Rajasthan
“The best gift that I
have received was
2014. I have learnt
from it.... The more
difficult my oppo-
nents make my life,
the harder it is for
me, the better it is for
me.... I appreciate the
attacks....”
—Congress President
Rahul Gandhi to
Gulf News
“Today we are with-
drawing from the
Ayushman Bharat
scheme. Now, the
Centre will have to
bear the entire cost of
the scheme as we will
no longer pay our
share of the money.
Why should we pay if
it (Centre) takes all
the credit?”
—West Bengal CM
Mamata Banerjee at a
rally in West Bengal
“Nitin Gadkari
should be made
deputy PM and UP
CM Adityanath
should be engaged in
religious works...Raj-
nath Singh should be
appointed UP CM.
Amit Shah should...
hand over the
charge...to Shivraj
Singh Chouhan....”
—BJP leader Sangh-
priya Gautam on the
waning of the Modi
charisma
“People are concer-
ned that we are try-
ing to bring some-
body (outsiders),
which is false. With-
out that Bill, we are
surrendering our-
selves to the philoso-
phy of Jinnah.…”
—Senior Assam
minister Himanta
Biswa Sarma on the
need to pass the
Citizenship
(Amendment) Bill,
2016
“As a mother, I used
to feel the pain and
made those remarks
in anger.... Still, I
apologise. What else
can I do?”
—Former J&K CM
Mehbooba Mufti on
her remarks justify-
ing the killing of local
youths in firing by
the security forces
“...After 100 days, all
of us will be before
the public. The CBI
is not going to win
an election for any-
one. The CBI is
going to ask us ques-
tions...but the public
is going to decide
and they are ready
to teach them (BJP)
lessons.”
—Former UP CM
Akhilesh Yadav on the
CBI probing the
mining scam in UP
“By far this is my best achievement. Has to be
on top of the pile. When we won the World Cup,
I was a young player. I saw the others getting
emotional. This series will give us a different
identity as a team. What we've been able to
achieve is something to be really proud of.”
—Team India captain Virat Kohli after India won its
maiden Test series in Australia

9. The capital will soon play
host to the Nani Palkhivala
(left) birth centenary quiz on
constitutional law. It will be
held on February 3 from 10 am
to 5 pm at Hotel Taj Vivanta
near Khan Market. A steering
committee led by former CJI
MN Venkatachaliah (as chair-
man), former Governor and
Rajya Sabha MP TN Chaturvedi
(as working chairman) and
including former CJI Dipak Mis-
ra and Justice Sujata Manohar,
Muralidhar C Bhandare, Soli J
Sorabjee, Fali S Nariman, Prof
Upendra Baxi, Arvind P Datar,
Iqbal Chagla, PH Parekh and
the Director, IIPA, has been set
up to oversee the event, with
Maj Gen Nilendra Kumar (retd)
as its honorary secretary.
Courts
| INDIA LEGAL | January 21, 2019 9
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
SC unhappy with
frivolous PILs
The January 10 proceedings in the Babri
Masjid-Ram Janmabhoomi title suit ended
with a surprise development, with one of the
judges on the bench recusing himself from the
hearing. Justice UU Lalit (left), who was part of
the constitution bench along with CJI Ranjan
Gogoi and Justices SA Bobde, NV Ramana and
DY Chandrachud, decided to recuse himself
after a lawyer representing one of the petition-
ers pointed out that Justice Lalit had appeared
for former UP Chief Minister Kalyan Singh in
another case related to the title dispute. In the
light of this development, the matter has been
deferred to January 29 when a fresh constitu-
tion bench will assemble to decide the sched-
ule for the commencement of arguments.
State governments not clearing
pending expenditure bills of
their respective high courts is
nothing new. But the Nitish Kumar-
led Bihar government seems to
have gone a bit too far. It has been
three years that the bills raised by
the Patna High Court have been
pending with the state government,
awaiting clearance, despite repeat-
ed reminders. In fact, another
reminder, the seventh one, has
already been sent to the govern-
ment. The bills run into several
crores of rupees.
The Supreme Court refused to stay the
National Green Tribunal’s (NGT) order set-
ting aside the Tamil Nadu government’s deci-
sion to close Vedanta’s Sterlite copper plant
in Tuticorin. The Court sought a response
from Vedanta on the state government’s
appeal against the NGT’s order. In August
2018, the NGT bench of Justice Adarsh
Kumar Goel had passed an order permitting
Vedanta to access the administrative unit of
its controversial copper plant. Before that, in
April 2018, the Tamil Nadu Pollution Control
Board had declined to renew the plant’s con-
sent to operate for failing to comply with
environmental laws. Subsequently, the plant
was ordered to be permanently closed.
ASupreme Court bench of Chief
Justice Ranjan Gogoi and Jus-
tice SK Kaul expressed concern
about young lawyers abusing the
court process by filing increasingly
frivolous PILs. Two successive
PILs were listed before the bench;
one prayed for the Aligarh Muslim
University to be renamed, while the
other sought access to clean pub-
lic toilets to be made a fundamen-
tal right. Incidentally, the PILs were
filed by two young members of the
bar, advocates Rudra Vikram Singh
and Anshul Chowdhary, respec-
tively. This led CJI
Gogoi to remark:
“What has happened
to the young
members of
the legal
profes-
sion?”
No stay on NGT order to reopen Sterlite plant: SC
Ayodhya hearing
deferred again to
January 29
Bihar govt sitting
on High Court bills
Nani Palkhivala birth centenary quiz on February 3

10. 10 January 21, 2019
ISTHAT
In which cases can the Supreme Court
entertain an appeal?
In any civil or criminal matter decided by
the High Court of any state, the aggrieved
party may move the Supreme Court by fil-
ing an appeal. However, the case must in-
volve a substantial question of law as to
the interpretation of the Constitution. In
order to invoke this appellate jurisdiction,
the concerned High Court must certify
under Article 134A that a substantial ques-
tion exists with regard to the interpretation
of the Constitution. Article 133(1) also em-
powers the apex court to hear appeals
against any order, decree, judgment of a
High Court if the latter certifies that the
case involves a substantial question of law
of general importance. An appeal can also
be filed before the Supreme Court under
Article 134 in certain criminal matters. Fur-
ther, Article 136 is a special provision that
empowers the top court to hear appeals
coming from any court or tribunal in India
in the form of a special leave to appeal.
What other course of action can be taken
instead of going to a court for resolving a
dispute?
To reduce the increasing judicial backlog in
courts, certain alternative dispute resolu-
tion processes have been created, including
arbitration, mediation and conciliation, to
resolve cases outside the court process.
Arbitration is a process in which a neu-
tral third party renders a decision based on
the merits of the case. In India, this proc-
ess is governed by the Arbitration and Con-
ciliation Act. The award given by the arbi-
trator is binding on the parties. The process
of mediation aims to reach a consensual
solution between the disputing parties with
the assistance of a person appointed as a
mediator. In conciliation, the dispute is
resolved by compromise and voluntary
agreement but the parties are not bound by
the award given by the conciliator.
Ways to Resolve a
Dispute Outside Court
—Compiled by Sankalan Pal
Matters in Which SC Has Appellate Jurisdiction
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 the procedure to apply for a
succession certificate for immovable
property under Indian law?
To obtain a succession certificate, a peti-
tion must be filed before the district judge
within whose jurisdiction the deceased per-
son ordinarily resided at the time of his or
her death, or if at that time he or she had
no fixed place of residence, the district
judge within whose jurisdiction any part of
the property of the deceased is located. It’s
relevant to note that the petition must be
filed in the place where the deceased had
lived and not where the petitioner lives.
Further, it must be supported by the death
certificate of the deceased. After the peti-
tion is filed, a notice is issued to all the
other legal heirs inviting their objections,
and if there are any, the court hears them.
A notice is also published in a newspaper
for inviting objections within 45 days. Foll-
owing this, the court issues a succession
certificate in the name of the petitioner.
Procedure to Obtain a
Succession Certificate
?
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Can a petition be filed in the Supreme Court
against the Election Commission of India?
A petition can be filed in the Supreme Court
against the Election Commission of India
(EC) under Clause (1) of Article 300 of the
Constitution. This clause provides that the
Government of India can sue or be sued in
the name of the Union, subject to any provi-
sions which the Parliament or state legisla-
ture has enacted. According to Article 12 of
the Constitution, the term “State” includes
any authority that is created by the Consti-
tution and has the power to make laws. The
EC is an autonomous constitutional authority
responsible for administering elections in
India. It operates under the authority of the
Constitution as per Part XV, and is therefore
a part of the Government of India, and hence
can be proceeded against in a court of law.
EC’s Decisions Can be Challenged in Court

12. 12 January 21, 2019
An inside track of
happenings in Lutyens’ Delhi
Prime Minister Narendra Modi’s
ribbon-cutting peregrinations are
cutting a daily swathe across land
and air. Ordinary mortals wonder
how he manages to find time to
do the job he was entrusted
with—running the government.
One day it is the world’s tallest
statue in his home state (below,
right), another sees him off to the
other end of the country to open
Asia’s longest rail-cum-road
bridge across the mighty
Brahmaputra.
This coming week will see him
in Kollam, Kerala, for the inaugura-
tion of a bypass that will cut travel
time on the national highway from
Thiruvananthapuram to Alleppey
by approximately 30 minutes.
Modi’s name is seldom
attached to matters so modest
and mundane as a 10-km bypass,
but there is a reason. The last time
he went to Kollam was just before
the 2016 assembly elections when
a firecracker tragedy at a temple
near the city led to the death of
scores of people. The elections a
month later saw the BJP winning
its first ever seat in the state
assembly. With the general elec-
tion around the corner, Modi’s
sojourn to the bypass, his spin
doctors hope, will give the party a
new toe-hold in the state which
usually regards the BJP as an ille-
gal alien.
BJP President Amit Shah
recently overhauled the
party organisation and
constituted several com-
mittees for different tasks
related to the Lok Sabha
polls due in April-May while
also appointing new in-
charges for states. The
exercise shows a curious
tug-of-war between the Modi-Shah duo
and the RSS leadership in Nagpur.
Veterans Sushma Swaraj (above),
Nitin Gadkari (centre) and Uma Bharti—
all with strong Sangh ties—have been
kept out of the party’s election manifesto
panel, headed by Rajnath Singh, and the
publicity committee, headed by Arun
Jaitley. Gadkari, who has been in the
news for taking pot shots at the govern-
ment on prickly issues like unemploy-
ment, has instead been given the
unspectacular task of reaching out to
NGOs and social organisations while
Swaraj, who recently opted out of elec-
toral politics, has been entrusted with the
boring task of preparing poll literature.
Smriti Irani—the garrulous Union min-
ister most known for flaunting her ties
with Modi—has been kept out of all cru-
cial panels. Union Agriculture Minister
Radha Mohan Singh, Union Rural
Development Minister Narendra Tomar
and Tribal Affairs Minister Jual Oram have
all been kept away from crucial panels at
a time when farmer and rural distress has
cost the BJP dearly in recent assembly
polls.
Interestingly, though, second-rung
leaders who aren’t acolytes of the Modi-
Shah duo but enjoy the confidence of the
Sangh have been assigned key tasks in
different states.
THE
RUMBLINGS
WITHIN
CITIUS, ALTIUS,
FORTIUS, REALLY?

13. | INDIA LEGAL | January 21, 2019 13
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Delhi
Durbar
India’s foreign ministry officials are
scratching their heads trying to figure out
China’s latest advice to the US on its
Afghanistan policy. China has gone on
record stating that President Trump should
not abruptly withdraw 14,000-odd US
troops from Afghanistan. This is strange. In
view of the traditional US-China competi-
tion for global spheres of influence and
innate mutual distrust, notwithstanding
growing economic ties, the dragon should
be dancing with joy at the prospect of
Uncle Sam vacating a neighbouring,
strategic area.
“They [US] have been in Afghanistan
for 17 years. If they are leaving the country,
they should try to leave in a gradual and a
responsible way,” said Lijian Zhao, deputy
Chinese ambassador in Islamabad. Lijan
told Pakistan’s GTV News that the Taliban
and the Afghan government need to nego-
tiate a political solution to the 40-year-old
war.
According to Indian diplomats in the
know, the main reason seems to be the
US’s increasing reliance on India as a str-
ategic partner to play a larger role in the
Afghanistan peace process. A sudden
withdrawal of the US would create a vacu-
um that would increase India’s already
strong leverage in Afghanistan, while a
protracted negotiating process with the US
still present would give China the time and
space to join the parleys and increase its
influence in that region with the help of its
main ally, Pakistan.
INSCRUTABLE
NEIGHBOURThe recent assembly poll results in
Madhya Pradesh, Chhattisgarh and
Rajasthan proved that the cloak of
invincibility has slipped off Prime
Minister Narendra Modi and his dop-
pelganger, BJP President Amit Shah.
Now, the passage of the controver-
sial Citizenship Amendment Bill has
given NDA constituents from India’s
North east reason to derail the Modi-
Shah duo’s Mission 21 (winning 21
of the region’s 25 Lok Sabha seats).
The Asom Gana Parishad (AGP)
has already quit its alliance with the
BJP, turning the saffron party’s
dream of sweeping Assam in the
general election, due in April-May,
into a mirage. Discordant notes are
now being struck by the BJP’s other
regional allies—the Mizo National
Front in Mizoram, the National Peo-
ple’s Party in Meghalaya, the Indi-
genous People’s Front of Tripura and
the Nationalist Democratic Progres-
sive Party (NDPP) in Nagaland. The
NDPP is also upset over the centre’s
delay in signing the Naga Accord.
The turmoil in the BJP’s North
East Democratic Alliance has given
the Congress party an obvious rea-
son to hope for regaining control of
its decades-old bastion that was ste-
adily eroded by the saffron tsunami
since 2014. The Congress’s central
leadership has already instructed for-
mer Assam Chief Minister Tarun
Gogoi to put his rivalry with AGP
boss Prafulla Mahanta (above) beh-
ind and also reach out to other NDA
allies in the North east. Gogoi has
welcomed the AGP’s decision to
snap ties with the BJP and appealed
for an alliance to defeat the BJP.
Next, Gogoi could reach out to the
All India United Democratic Front
(AIUDF) chief Badruddin Ajmal for a
pre-poll alliance in Assam, an idea
the former chief minister has been
known to bitterly resent in the past.
SLIDING POCKET
BOROUGH
South Block mandarins are privately
sounding alarms that India’s defence
preparedness, already a matter of
grave concern for military and
geopolitical strategists, could plunge
further if politics and scandals con-
tinue to bedevil the modernisation
and acquisition process. Under pres-
sure of accusations of graft and
influence peddling by the middle
man-politician
nexus for several
decades, the latest being the
Agusta-Westland chopper deal
and the Rafale MMRCA combat
fighter contract deal for 36 aircraft for
the Indian Air Force, the scenario
looks bleak.
Says a summary provided by a
prominent security analysis think
tank: “Abused by foreign vendors
who violate contracts and get away
with non fulfilment of offset obliga-
tions and exploited by indigenous
crony capitalists India’s Defence
Acquisition System seems to be in a
continuous negative spiral of indeci-
sion, project delays, cost over-runs
and funding challenges....”
DEFENCE DILEMMA

14. Lead/ All-India Judicial Service
14 January 21, 2019
OR a long time, judicial
reform concerned itself with
the problem of delay and
pendency in the system. This
continues with no solution in
sight. Of late, the issues relat-
ing to judicial appointments, judicial
activism, judicial accountability and dig-
italisation engaged the attention of
stakeholders. Several committees and
commissions appointed by the govern-
ment from time to time have made rec-
ommendations to set the system right.
However, many of them remain unim-
plemented. It is business as usual in the
A Long
Overdue
ReformUnlikeotherpublicservices,thejudiciarygetslessmeritorious
candidatesduetofrustratingproceduresandinefficient
practices.WithAIJS,productivityandqualityofservices
atthedistrictlevelwouldimproveremarkably
By Prof NR Madhava Menon
BATTLING PENDENCY
Lawyers at Gurugram District
and Sessions Courts
F
judiciary despite mounting arrears and
reports of creeping inefficiency and cor-
ruption, alienating the public who now
look for alternatives for access to justice.
A judicial system consists of three el-
ements—laws, institutions and the per-
sonnel involved. Laws and institutions
are not self-executing and it is the per-
sonnel who make the system deliver.
The inadequacies of laws and institu-
tions, to a large extent, can be overcome
if the personnel who man the institu-
tions are competent and motivated pro-
fessionals. If judicial reforms are looked
at from the above perspective, there can

15. | INDIA LEGAL | January 21, 2019 15
be no doubt that the single-most impor-
tant step to put the system on the right
track is to induct meritorious people in
adequate numbers to preside over courts
and tribunals. The National Judicial
Appointment Commission for the high-
er judiciary and the All-India Judicial
Service (AIJS) for the subordinate judi-
ciary are, therefore, the twin strategies
to get the system to deliver both on
quality and quantity.
The First National Judicial Pay
Commission (Justice Jagannath Shetty
Commission), inter alia, recommended
the introduction of AIJS at the district
judge-level after detailed deliberation
with all stakeholders for increasing
efficiency in the system. The Supreme
Court accepted the recommendations of
the Commission, including the AIJS
proposal. According to media reports,
all state governments, except Tamil
Nadu and West Bengal, at that time
accepted the AIJS proposal. Unfortu-
nately, the then central government did
not take necessary follow-up action and
let the proposal die a natural death. It
was pointed out in legal circles that cer-
tain High Courts were also not keen to
have the AIJS as they thought that their
control over the subordinate judiciary
would get diluted in the process. The
Bar, which has been vocal in its opposi-
tion to most proposals of reform in the
judicial system, did not raise any objec-
tion to the introduction of AIJS. A very
significant reform which would have
made a big difference in the administra-
tion of justice at the district level was
thus buried by the neglect and indiffer-
ence of the Union Ministry of Law and
Justice, which now wants to revive the
proposal after nearly three decades!
In 2011, the Government of India set
up the National Mission for Justice
Anil Shakya

16. 16 January 21, 2019
Delivery for a five-year period with a
view to eliminate delay and arrears and
to modernise judicial processes with
technology and management reforms. It
is understood that the Mission’s life is
extended up to 2020. In several meet-
ings of the Mission Advisory Committee,
the AIJS proposal was raised and rec-
ommended for early introduction. It was
the unanimous view of all those involved
that efficiency, productivity and quality
of services at the district level would
improve remarkably with the adoption
of AIJS.
G
iven the regular supply of talent-
ed law graduates from National
Law Schools and similarly
placed institutions, there are now in the
profession, advocates with seven to ten
years of practice experience who would
be inclined to join the district judiciary
as they have a chance to get promoted to
the higher judiciary in reasonable time.
They don’t have to retire as district
judges if they show good performance at
the district level. The job profile and sta-
tus in the judiciary are certainly more
attractive than what is on offer in other
central services.
If the judicial academies give proper
training and High Courts provide the
freedom within identified parameters to
innovate at work, district judges’ effi-
ciency will increase considerably and
this would reduce appeals arising from
their decisions. For motivated young
men and women, job satisfaction and
personal reputation are more important
than money and power. They are less
likely to become corrupt as they consid-
er their professional career more signifi-
cant than anything else.
Bar-Bench relations are also likely to
change for the better, a desirable reform
in the present circumstances. So-called
language barriers will not be a serious
problem as youngsters learn languages
quickly. Many law graduates are already
proficient in more than one Indian lan-
guage as they spend five years and more
studying law at a law school outside
their home states. In short, the time for
AIJS is now and it will bring a remark-
able breakthrough in further integration
of the legal and judicial system of the
country, giving it quality and efficiency,
much-needed presently.
AIJS has become essential for anoth-
er reason as well. The existing system
under which High Courts or State
Public Service Commissions are recruit-
ing judges to the district judiciary is so
full of loopholes, delays and inefficiency
that it is unable to produce enough
qualified candidates to fill the vacancies.
In some cases, even those limited selec-
tions are challenged in unending litiga-
tion, denying judiciary the services of
meritorious candidates. It is sad that
while other public services get relatively
better candidates, the judicial services
even at the district level are left to man-
age with less meritorious candidates or
with none after prolonged selection pro-
cedures and substantial expenses. This
is not because the judiciary is not an
attractive service to the talented, but
because of frustrating procedures and
inefficient management practices. AIJS
selection by a central agency under judi-
cial supervision will make the difference
that the system is waiting for.
Finally, does AIJS hit the federal
structure of the polity as contended by
some people? In this connection, it is
necessary to recall the words of Dr BR
Ambedkar. While introducing the Draft
Constitution, he said: “….When diversity
created by division of authority in a dual
polity goes beyond a certain point, it is
capable of producing chaos. The Draft
Constitution has sought to forge means
and methods whereby India will have
Federation and at the same time will
have uniformity in all basic matters
which are essential to maintain the
Unity of the country. The means adopt-
ed by the Draft Constitution for this
purpose are (i) a single judiciary, (ii)
uniform laws, civil and criminal, and
(iii) a common All India Service to man
important posts.”
Dr Ambedkar felt that federal polity
LONG WAIT
Litigants wait outside Tis Hazari courts
Lead/ All-India Judicial Service
Anil Shakya

17. | INDIA LEGAL | January 21, 2019 17
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
would be strengthened in consistent
with the unity of the country by having
a single judiciary with uniform laws
and an all-India judiciary. In fact, a uni-
fied judiciary helps to institutionalise
the idea of co-operative federalism.
Although the Constitution empowers
Parliament to establish separate courts
for enforcement of Union laws, it has,
in the interest of unity and integrity of
the nation and economy, continued the
system of a single integrated judiciary
for the Union and states.
O
f course, there is a justifiable
complaint that the government
(State as well as central) is pro-
viding very little financial support to
the judiciary. According to available
data, except Delhi, all states are provid-
ing less than one percent of their budg-
et for subordinate judiciary. In fact,
more than half of the amount spent on
the judiciary is raised by the judiciary
itself through collection of court fees,
stamp duty and miscellaneous charges
(Agenda Notes of the Conference of
Chief Ministers and Chief Justices of
High Courts, 2006). The plan funds
provided by the Union government to
the judiciary varied from a mere `700
crore in the Tenth-Plan to a couple of
thousand crores in the Twelfth Plan. A
centrally sponsored scheme for develop-
ment of infrastructure for subordinate
judiciary brought central/state funds on
a 50:50 basis.
The Thirteenth Finance Commission
recommended substantial increase in
central funding of the judiciary, includ-
ing subordinate courts. A report of the
Justice Jagannath Rao Committee,
appointed by the Supreme Court on
the subject of judicial impact assess-
ment, wanted the government to make
the fund for additional judicial time
required to implement Union laws to
be fully included in the Financial
Memorandum wherever a law/bill
is introduced. This amount should be
additionally provided to the judiciary
independent of the regular budget.
Given the limited finances available
with states, the funds required for an
integrated all-India judiciary have to be
necessarily provided by the central gove-
rnment. Such an approach will streng-
then the federal scheme of governance
while enabling the judiciary to manage
its internal administration efficiently
without having to depend on the govern-
ment for getting even basic facilities.
—The author is a former
Director of the National Judicial
Academy and is presently Hony.
Director of the Kerala Bar Council MKN
Academy for Continuing Legal
Education, Kochi
MOTIVATED CANDIDATES
Prospect of a lucrative career will draw
meritorious students into the judicial service
Ifthejudicialacademiesgiveproper
trainingandHighCourtsprovidethe
freedomwithinidentifiedparametersto
innovateatwork,districtjudges’
efficiencywillincreaseconsiderably.
UNI

18. Investigation/ CBI
18 January 21, 2019
he recent goings-on at the
highest echelons of the
CBI and the government
make for a thrilling
Bollywood script. A prime
minister and his palace
intrigue, deafening political uproar,
courtroom drama, feuding cops, corrup-
tion scandals—the script has all it takes
to set cash registers ringing. But this
potboiler isn’t something you enjoy
watching while gorging on popcorn and
cola. It is a grim reality that makes a
mockery of India’s democracy and
its institutions.
Late evening on January 10, Alok
Verma was summarily discharged as
CBI director, a post he was conditionally
reinstated to by the Supreme Court just
48 hours earlier at the end of an acerbic
legal battle against the central govern-
ment and the Central Vigilance
Commission (CVC).
The verdict for his reinstatement,
authored by Chief Justice Ranjan Gogoi,
had slammed the manner in which
Verma was sent on leave by the CVC and
the government through a midnight
order on October 23. However, it also
made Verma’s continuance as CBI chief
subject to a final decision to be reached
within a week by the selection panel
that had appointed him. The selection
panel consists of the prime minister, the
chief justice of India and the leader of
Opposition (or the largest Opposition
party) in the Lok Sabha.
The chief justice, having authored
the verdict on Verma’s plea challenging
the October 23 decision, recused himself
from the selection panel and nominated
Justice AK Sikri to take his place ins-
tead. Unsurprisingly, the same princi-
ples of conflict of interest and morality
did not force Modi to recuse himself
from the panel. This, despite the role of
the Prime Minister’s Office, and by
extension the prime minister himself,
in allegedly forcing the October 23
action against Verma and interfering in
the CBI’s functioning, being questioned
on several occasions.
Verma was shunted out after Modi
and Justice Sikri concluded that some
allegations made against him in a CVC
inquiry report were grave enough to
warrant action. However, seven other
allegations investigated by the CVC
against Verma, including one of receiv-
ing bribes, were found to be unsubstan-
tiated (see box). The selection panel’s
third member, Congress leader
Mallikarjun Kharge, demanded that
Verma be allowed to continue as CBI
chief and also present his defence before
the panel.
Soon after the selection panel’s deci-
sion, the government decided to transfer
Verma as Director General, Fire
Services, Civil Defence and Home
Guards. There was no explanation on
how an officer dismissed from heading
one government agency on grounds of
professional misconduct was fit to head
three other units.
Verma, a 1979 batch IPS officer, in a
tersely worded letter to Chandramouli
C, secretary of the Department of
Personnel and Training, turned down
his new posting and instead, resigned
Under
Fire
ThesordidepisodeofCBIdirector
AlokVerma’sreinstatementandlater
sackingshowsthepowergames
embroilingIndia’stopinvestigating
agency.Aspollsnear,thisdramacould
spilloverintothepoliticalarena
By Puneet Nicholas Yadav
T
Incontrasttotheurgencyitshowedin
sackingVerma,thecentreandtheCVC
areyettotakeasimilaractionagainst
RakeshAsthana,aGujaratcadreofficer
knownforhisproximitytoModi.

19. | INDIA LEGAL | January 21, 2019 19
from service on January 11.
The news of Verma’s resignation
coincided with another development.
The Delhi High Court, in a verdict
authored by Justice Najmi Waziri, dis-
missed a plea filed by CBI special direc-
tor Rakesh Asthana seeking quashing of
the FIR filed against him by the probe
agency. This was linked to a bribery case
involving Hyderabad-based business-
man Sathish Babu Sana and controver-
sial meat exporter Moin Qureshi. The
Court also vacated the interim stay on
Asthana’s protection from arrest and
directed the CBI to complete its probe
against him within 10 weeks.
That the genesis of the present crisis
in the CBI began with the feud between
Verma and Asthana is now widely
known. A bulk of the charges against
Verma that were investigated in the
CVC inquiry came from complaints filed
by Asthana. Verma has maintained that
Asthana’s complaints to the CVC were
the direct result of the CBI closing in on
his alleged financial improprieties and
other misconduct. Further, Verma’s
frosty equations with Central Vigilance
Commissioner KV Chowdary, the author
of the inquiry report, are well-known
and precede the current imbroglio by
over a year.
When Verma was sent on leave on
October 23, there was an alleged
attempt to hush up the cases against
Asthana. All CBI officers who were
probing Asthana were either transferred
or reassigned on October 24 by
Nageswara Rao, the interim CBI chief.
In the 48 hours that Verma returned as
CBI director following his reinstate-
ment, he rescinded these transfers. But
then, Rao returned as the interim CBI
chief on January 11, and promptly
restored his earlier orders of October 24.
I
n contrast to the urgency it showed
in shunting Verma out of the CBI,
the government and the CVC are
yet to take a similar action against
Asthana, a 1984 batch Gujarat cadre
officer known for his proximity to Modi.
Though currently on forced leave,
Asthana continues to hold the rank of
CBI special director.
Coming to Verma’s resignation letter,
he notes that “natural justice was scut-
tled and the entire process was turned
upside down” to ensure that he was
removed from the post of CBI director.
He goes on to say that the selection
committee “did not consider the fact”
that the entire CVC report is premised
on charges alluded by Asthana “who is
presently under investigation by the
CBI” and that the “CVC only forwarded
a purportedly signed statement of the
complainant, and the complainant never
came before Hon'ble Justice (Retd.) AK
Patnaik (supervising the inquiry)”.
The Supreme Court had, while hear-
ing Verma’s plea, directed that the CVC
inquiry must be supervised by Justice
Patnaik, a former apex court judge.
Verma further says that “Justice Patnaik
has concluded that the findings/ conclu-
sions of the report are not his”.
Justice Patnaik has confirmed
Verma's claim. In an interview to The
Indian Express, Justice Patnaik termed
Verma's sacking as a “very, very hasty
decision”. “There was no evidence of cor-
ruption regarding Verma....I have said in
my report (filed separately with the
Supreme Court) that none of the find-
ings of the CVC's report are mine,” said
Justice Patnaik.
VermawasshuntedoutafterModiandJusticeSikri(centre)concludedthatsomeallegationsraisedintheCVCinquiryreportwere
graveenoughtowarrantaction.Theselectionpanel’sthirdmember,CongressleaderMallikarjunKharge(right),however,dissented.
UNI UNI

20. Investigation/ CBI
20 January 21, 2019
Biasedprobe?
Here are the CVC’s inquiry report findings against Verma sourced from
Mallikarjun Kharge’s dissent note to the selection committee
Allegation against Alok Verma Finding
Influencing investigation by taking bribe No evidence of payment of bribe; further
investigation required for verifying
circumstantial evidence
a. Exclusion of a suspect from being
named as an accused in an FIR –
IRCTC scam
b. Tried to call off searches/raids in Patna
Allegation (a) substantiated; amounts to
serious misconduct and warrants
disciplinary and other actions
Allegation (b) not substantiated
Inordinate delay in finalising investigation
report in bank fraud case against main
accused, indicating favouritism towards
the main accused
Allegation found to be correct
Transfer of SIR related to Joint Director,
CBI
Allegation not substantiated
Not taking action on certain intelligence
inputs
Allegation not substantiated
Illegal gratification in ongoing preliminary
enquiry against land acquisition in
Haryana
Allegation not substantiated; further
enquiry will be required
Failure to take action in gold smuggling
case at IGI airport
Allegation partially substantiated;
recommended to be re-investigated by
different branch of CBI
Helping the cattle smugglers; comman-
dant of BSF
Allegation not substantiated
Attempts to induct tainted officers into
CBI
Allegation found to be substantiated
Undue interference in CBI cases against
ED officials
Allegations have either not been
substantiated or require further
investigation
His comments leave Modi, and even
Justice Sikri, in a very embarrassing and
suspicious position. Is it not surprising
that the selection committee, which
included a sitting Supreme Court judge,
did not find it important enough to
examine Justice Patnaik’s views that
contradicted the CVC report and gave
Verma a clean chit?
The slugfest over Verma’s ouster has
spilled over into the political arena.
Congress president Rahul Gandhi has
been claiming that Verma was sacked to
prevent him from ordering a prelimi-
nary inquiry into the controversial
Rafale deal. “Why is the PM in such a
tearing hurry to sack the CBI Chief?
Why will he not allow the CBI Chief to
present his case in front of the selection
committee? Answer: RAFALE,” Gandhi
tweeted when the selection committee
was still in a meeting to decide Verma’s
fate. After Verma was sacked, Gandhi
tweeted: “Fear is now rampaging
through Mr Modi’s mind. He can’t sleep.
Sacking the CBI Chief Alok Verma twice
in a row, clearly shows that he is now a
prisoner of his own lies.”
W
hile keeping up the pressure
on Modi by shooting from
Verma’s shoulder is a political
necessity for the Congress, it also knows
that for now it has to be careful with the
tenor of its diatribe. Given that the deci-
sion to sack Verma had the concurrence
of the representative of the chief justice
on the selection panel, the Congress
does not want to antagonise the top
court. However, party leaders told India
Legal that Justice Sikri is due to retire
in March, and if, like many of his retired
peers from the top court, he takes a
post-retirement job offered by the Modi
government, “the allegation of a quid
pro quo would be easier to raise”.
India Legal has also learnt that the
CBI could soon proceed with an investi-
gation against Verma on Asthana’s
allegations. Verma’s troubles aren’t over
yet. All eyes are now on who the selec-
tion panel will select as the next full-
time director of the CBI. Another
excerpt from Verma’s resignation letter
must be quoted here.
“Institutions are one of the strongest
and most visible symbols of our democ-
racy and it is no exaggeration that the
CBI is one of the most important organ-
izations in India today. The decisions
made yesterday will not just be a reflec-
tion on my functioning but will become
a testimony on how the CBI as an insti-
tution will be treated by any government
through the CVC who is appointed by
majority members of the ruling govern-
ment. This is a moment for collective
introspection, to state the least.”
One wonders if the prime minister,
months before the Lok Sabha poll cam-
paign, has time for this introspection.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

22. Focus/ Quotas
22 January 21, 2019
The passage of the Bill paves the way
for Prime Minister Narendra Modi’s
government to introduce a 10 percent
reservation over the existing 49.5 per-
cent reserved for Scheduled Castes,
Scheduled Tribes and Other Backward
Classes for “the economically weaker
sections of society in higher educational
institutions, including private institu-
tions” and in government jobs. The
amendment seeks to negate the cap of
50 percent on reservations that was set
HE fear of electoral rever-
ses is the most potent tool
that determines the actions
of a government—or its
Opposition. Nowhere is
this more apparent than in
the unfortunate charade that played out
in both Houses of Parliament on
January 8 and 9 when the Constitution
(124th Amendment) Bill was passed,
abetted by a rare unanimity between the
Treasury and Opposition benches.
Reservation Ruckus
T
Thecentre’smovetohave10percentquotafortheecono-
micallypoorovertheexisting49.5percentforSCs,STsand
OBCsmaybeapollgimmick,butwillitstandlegalscrutiny?
By Puneet Nicholas Yadav
Photos: UNI

23. | INDIA LEGAL | January 21, 2019 23
by the Supreme Court through various
judgments, notably in the Indra
Sawhney case, and also the constitution-
al and legal obligation of not providing
reservations purely on the basis of eco-
nomic backwardness.
As Articles 15 and 16—which now
stand amended—are not subject to the
requirements of constitutional amend-
ments laid out in Article 368 (2) (ratifi-
cation by at least half of the state legisla-
tures following passage by Parliament),
the government is now free to issue an
executive order granting the new quota.
Whether the amendments, specifically
meant to benefit the upper caste and
electorally significant communities such
as the Thakurs, Jats, Marathas and
Patels, is legally sustainable is a question
that is now being debated.
Expectedly, a day after the Bill was
passed by the Rajya Sabha, NGO Youth
for Equality moved a plea in the Sup-
reme Court challenging the amend-
ments to Article 15 and 16. It stated that
the amendment violates “one or the
other basic feature of the Constitution,
and hence such a manifest and obvious
violation of the Constitution ought to
be prevented”.
So what are the political compulsions
that forced the Modi government and
the Opposition to join hands for the pa-
ssage of the Bill? The Bill comes weeks
after the BJP was voted out in MP,
Chhattisgarh and Rajasthan in favour
of the Congress. The poll outcomes
show that the saffron tide had receded
in urban areas where the opponents
of the existing reservation policy—
upper castes—constitute a formidable
vote base.
T
he push for additional reserva-
tion also coincides with Congress
President Rahul Gandhi’s high-
pitched diatribe against the Modi sarkar
for perpetuating alarming rates of
unemployment and failing to deliver on
its 2014 poll promise of generating 10
million jobs annually. It also comes
towards the fag end of its term which
has, since 2014, seen agitations for
reservations across states by the forward
castes such as the Thakurs, Jats and
Patels. The move is, thus, a clear sign of
desperation of the BJP, shoddily pre-
sented in the garb of social justice.
For the BJP, the electoral benefits of
the move are not hard to imagine. Not
surprisingly, with everyone in his gov-
ernment in self-congratulatory mood,
the prime minister too did his usual
chest-thumping, terming the Bill “a vic-
tory for social justice” which “ensures a
wider canvas for our Yuva Shakti to
showcase their prowess and contribute
towards India’s transformation”.
The Opposition was simply given a
fait accompli by Modi—resisting the
Bill’s passage would have meant antago-
nising the over 15 percent upper caste
vote and giving the BJP a chance to
claim that its political rivals criticise the
government over unemployment but
oppose a “historic act” that could rectify
the malaise.
In both Houses of Parliament, with
the exception of a handful of negative
votes, the Bill sailed through with the
required two-thirds majority of mem-
bers present and voting to enable a con-
stitutional amendment. The negative
votes included three in the Lok Sabha
(AIMIM chief Asaduddin Owaisi and
IUML MPs ET Mohammed Basheer
and P Kunhalikutty), seven in the Rajya
Sabha (MPs from the RJD, DMK and
IUML), and some conveniently timed
abstentions and walk-outs. The Opposi-
tion benches hemmed and hawed, att-
acking the Modi government for “yet
another jumla”, but voted in favour of a
Bill they otherwise opposed “because it
was in the interest of the society”.
Congress MP Kapil Sibal pointed out
three foreseeable hurdles before the new
reservation is implemented: “First is the
complete non-application of mind on
the part of the government in introduc-
ing this Bill; second, the constitutionali-
ty of this Bill; third, the implementation
of this Bill.” Sibal said that the Bill vio-
lates the top court’s Indra Sawhney ver-
dict as also the basic structure doctrine
enumerated in the Kesavananda
Bharati judgment. Nonetheless, he
voted in favour of the Bill.
Union law minister Ravi Shankar
Prasad disagreed with Sibal’s objections,
stating that the “basic structure of the
Constitution has nothing to do with
reservations… In this Bill we are adding
a clause to Article 15 where reservation
will be given in educational institutions
and employment and under Article 16 to
public employment. Our reservation will
not touch the existing reservation for
SCs, STs and OBCs”. He also dismissed
the Opposition’s contention that the Bill
violates the Indra Sawhney verdict.
Though the Bill may have sailed
through, there is a major legal hurdle
ahead. The majority verdict in Indra
Sawhney, passed by a nine-judge Cons-
titution Bench headed by then Chief
Anylegalbattlewouldclearlytakemore
thanfivemonthsfortheSupremeCourt
toresolve.Anddecipheringwhoarethe
economicallybackwardpaintsaneven
moreproblematicsituation.
FALSE HOPE?
(Facing page) Demonstrators at a Jat
Aarakshan Adhikar rally demanding
reservation for the community; youth queue
for registration at a job fair in Rajasthan

24. Focus/ Quotas
24 January 21, 2019
Justice MN Venkatachaliah, had cate-
gorically said: “…Constitutional philoso-
phy being against proportional equality
the principle of balancing equality or-
dains reservation, of any manner, not to
exceed 50 per cent.” It had added: “A
backward class cannot be determined
only and exclusively with reference to
economic criterion.”
Despite this, several states have tried
to breach the 50 percent cap, with Tamil
Nadu even going to the extent of having
a quota of 69 percent. But none of these
have stood legal scrutiny. Tamil Nadu’s
additional 19 percent quota was legally
upheld, but only after it increased
the same number of seats in the unre-
served category.
Any legal challenge to the 50 percent
cap on reservations will have to be adju-
dicated by a bench of no less than 11
judges. Such a battle would clearly take
more than five months for the Supreme
Court to resolve, by which time the
Modi government’s time in office would
be over. If the legal road ahead is rocky,
the practical challenges in its implemen-
tation and the social turmoil it would
unleash would be no less.
Dalit scholar and Osmania Univer-
sity professor Kancha Ilaiah Shepherd
told India Legal: “Those who are now
lobbying for reservation for the savarna
(upper caste) people are the same peo-
ple who until yesterday were claiming
that the quota system has killed merit. It
is their own argument that they are now
trying to negate. Secondly, I believe that
if the government has decided to put the
50 percent cap behind, then it must first
increase the quota for the bahujans
(Dalits and backwards) in proportion to
their population.”
U
nion ministers Anupriya Patel
and Ramdas Athawale have
already demanded that the cen-
tre make public the findings of the
Socio-Economic Caste Census (SECC)
2011. Both, along with other Opposition
leaders, believe that the proportional
representation of SCs, STs and OBCs
will have to be significantly hiked if the
caste census data is revealed.
Deciphering who are the economical-
ly backward paints an even more prob-
lematic situation. If reports are to be
believed, the government considers the
following as economically poor: a family
with an annual income of less than `8
lakh, or with a residence of less than
1,000 square feet area or agricultural
land holding of less than five hectares or
a plot of less than 100 yards in notified
municipal areas or 200 yards in non-
notified municipal areas.
This criteria, say Opposition leaders,
is laughable. “First, where is the empiri-
cal data to ascertain who all qualify
under these categories? Second, if one
takes 2011-12 as the base year then
India’s net per capita annual income, at
constant prices, is just `80,000-85,000,
what is the sense in declaring `8 lakh
annual income as the yardstick for eco-
nomic backwardness? Also, real estate
prices differ from place to place—a
1,000-square-foot residence in south
Delhi or south Mumbai is worth crores.
How is its owner poor?” asked RJD MP
Manoj Jha.
But, while the government has prom-
ised new reservation in jobs, where are
the employment opportunities?
According to a report by
newslaundry.com: “If we take a look at
the Modi years, around 1.78 lakh jobs
have been added at the central govern-
ment level (since 2014). This works out
to around 45,000 jobs a year, on an
average. If a reservation of 10 percent
would have been in place for the eco-
nomically weaker sections of the society,
it would have added 4,500 jobs per
year.” This, when job creation in public
sector enterprises has been on a steady
decline over the past four and a half
years while over 10 million youth are
being added to the workforce annually.
The recent “Unemployment Rate in
India” report by the Centre for Moni-
toring Indian Economy shows that the
unemployment rate has been rising,
peaking at a 27-month high of 7.38 per-
cent as of December 2018. In addition,
the number of employed Indians fell by
10.9 million over the last 12 months as
salaried employees lost their jobs due to
a combination of economic factors.
So, while Modi can promise 10 per-
cent new reservation, is he really gener-
ating enough jobs to accommodate
them? A WhatsApp joke sums it up
best: “This 10 per cent reservation for
economically backward people is like a
lollypop which has a glittery cover and a
stick but no toffee inside.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Firstisthecompletenon-applicationof
mindonthepartofthegovernmentin
introducingthisBill;second,the
constitutionalityofthisBill;third,the
implementationofthisBill.”
—CongressMPKapilSibalonitspitfalls
“BasicstructureoftheConstitutionhas
nothingtodowithreservations….Our
reservationwillnottouchtheexisting
reservationforSCs,STsandOBCs.”
—LawministerRaviShankarPrasad,
disagreeingwithSibal

25. | INDIA LEGAL | January 21, 2019 25
Supreme Court/ Vacancies
HORTLY after he took
over as chief justice of
India, Ranjan Gogoi
warned state governments
and High Courts (HCs)
that the Supreme Court
will take over the process of filling up
vacancies in the lower judiciary if they
fail to expedite the exercise. “We are
telling all high courts and states that we
are keeping you under constant gaze. If
you cannot fill vacancies, then we will
take over….We want our judges to be in
place,” the CJI had said.
The task of filling up vacancies ac-
ross all levels in the judiciary is a gigan-
tic one, but the CJI is leading by exam-
ple. Since he assumed office, four judges
have been sworn in as judges of the
Supreme Court. In the first week of
January, the SC Collegium, comprising
of the five senior most judges—CJI
Gogoi and Justices AK Sikri, SA Bobde,
NV Ramana and Arun Mishra—met and
after extensive discussion, recommend-
ed the names of two more judges. They
are Chief Justice Dinesh Maheshwari of
the Karnataka High Court and Justice
Sanjiv Khanna of the Delhi High Court.
This will take the strength of the Court
to 28, leaving three vacancies.
According to the resolution, posted
on the SC website, while recommend-
ing the names of Justices Maheshwari
and Khanna, the Collegium took into
consideration the combined seniority
on an all-India basis of chief justices
and senior puisne judges of High
Courts, apart from their merit and
integrity. The Collegium also kept in
mind the desirability of giving due rep-
resentation on the bench of the
Supreme Court, as far as possible, to all
the High Courts.
Earlier, the Collegium had met on
December 12, 2018, to recommend
names for judgeship in the Supreme
Court and transfers of chief justices and
judges of High Courts. The resolution
read: “The then Collegium on 12th
December, 2018 took certain decisions.
However, the required consultation
could not be undertaken and completed
as the winter vacation of the Court
intervened. By the time the Court re-
opened, the composition of the
Collegium underwent a change. After
extensive deliberations on 5th/6th
January, 2019, the newly constituted
Collegium deemed it appropriate to
have a fresh look at the matter and also
to consider the proposals in the light
of the additional material that became
available.”
J
ustice Dinesh Maheshwari was
appointed as a judge of the Rajas-
than High Court on September 2,
2004 and transferred to Allahabad High
Court on July 19, 2014. He was elevated
as chief justice of Meghalaya High Court
on February 24, 2016 and transferred to
Karnataka High Court on February 12,
2018. He is No 21 in the combined sen-
iority of High Court judges. Justice
Sanjiv Khanna was appointed as a judge
of the Delhi High Court on June 24,
2005. He is No. 33 in the combined sen-
iority of High Court judges.
The last time the Collegium recom-
mended names (four of them) for eleva-
tion to the Supreme Court was in
November. The centre then had notified
their appointments in less than 48
hours. CJI Gogoi had then said that he
was “simply overawed” by the speed
with which the government had moved.
It is hoped that the centre shows the
same alacrity this time too.
CJI Leads by Example
TheSCCollegiumhasrecommendedtwomorenamesforele-
vationasjusticesoftheapexcourt,takingitsstrengthto28
By India Legal Bureau
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
S
Whilerecommendingthenamesof
JusticeDineshMaheshwari(left)and
SanjivKhanna,theCollegiumconsidered
combinedseniorityonall-Indiabasis
apartfrommeritandintegrity.

26. Column/ Constitutional Morality Prof NR Madhava Menon
26 January 21, 2019
FTER reading Professor
Upendra Baxi’s comment
on Attorney General KK
Venugopal’s concern over
Constitutional Morality
being used by the Sup-
reme Court as yet another weapon to
strike down laws (India Legal, Decem-
ber 24, 2018), I felt like raising some
fundamental questions on the debate.
This is in order to clarify to myself and
citizens like me about the implications
of the debate for the future of rule of law
and constitutional governance.
The questions are as follows:
1. As an overarching principle of consti-
tutional governance, is not the concept
of Constitutional Morality and whatever
it means applicable to all three wings of
the State and the citizenry? If so, when
the legislature, which represents “WE,
ture of democracy itself?
3. Given the fact that there is no single
Supreme Court to decide on constitu-
tional questions and there are multiple
courts, depending on the constitution of
benches, and also given the fact that
often important constitutional questions
are decided by benches with a one- or
two-vote majority and further, given the
general impression that the rule of colle-
giality is very often missing among
judges, how does the power dynamics of
the bench impact on constitutional gov-
ernance and rule of law?
4. Is the Court free to invoke Constitu-
tional Morality to decide against the text
of the Constitution as in the case relat-
ing to appointment of judges to the
higher judiciary?
5. When Constitutional Morality is
invoked by judges of the same bench to
come to opposite conclusions as during
the Sabarimala judgment, what is the
message it gives for constitutional gov-
ernance and rule of law?
6. Is the Court the custodian of people’s
faith and belief as well? Can it possibly
interdict on customs and practices tra-
ditionally followed by religious denomi-
nations on grounds other than what are
provided for in Article 26? Are there
judicially manageable standards to eval-
uate every religious practice in every
religion? Is not complementarity of con-
stitutional institutions also part of
Constitutional Morality?
7. What happens when two Funda-
mental Rights, one guaranteed to indi-
viduals and the other to groups of peo-
OneofIndia’stoplegalscholarssparksoffanewdebatebyponderingtheissueof
thebasicstructureoftheConstitution
A
Eight Burning Questions
AttorneyGeneralKKVenugopal’sconcern
overConstitutionalMoralitybeingusedby
theSCasanotherweapontostrikedown
lawhasimplicationsforthefutureofrule
oflawandconstitutionalgovernance.
THE PEOPLE”, makes a law, is it not
fair to say that such a law can be pre-
sumed to incorporate Constitutional
Morality? Should the Court in such cir-
cumstances be obliged to seek strict
scrutiny and positive evidence to strike
it down through judicial review?
2. Is there any justifiable fear in the
public mind that too much power is get-
ting concentrated in the judicial wing
without proper checks to prevent judi-
cial excesses and that works to the detri-
ment of not only Constitutional Morality
and Rule of Law, but to the basic struc-
Anil Shakya

27. | INDIA LEGAL | January 21, 2019 27
ple, contradict each other? If right to
privacy is interpreted to mean the pre-
vention of the State taking necessary
steps to ensure security, what will hap-
pen to right to life and right to freedom
of individuals? Who is best to judge the
right balance between liberty and
security in the era of terrorism and digi-
tal transaction?
8. Could Dr BR Ambedkar be wrong
when he said that Constitutional
Morality is a “sentiment” which has to
be cultivated among the people as it is
not natural to them? Can the attorney
general be faulted when he said that as
far as Dr Ambedkar’s invocation of the
doctrine is concerned, it was more a
mandate to the people and their repre-
sentatives, rather an additional source of
power for the Court?
The issue, to my mind, is not the
importance or relevance of the concept
of Constitutional Morality in working
out the provisions of the Constitution.
Rather, it is about the use and abuse
of the doctrine in constitutional deci-
sion-making.
No doubt, democracy as a system of
governance may not serve the constitu-
tional goal always. That is a price society
has to pay for accepting a democratic
form of government and polity.
The remedy for preventing majori-
tarian excesses lies more in cultivating
the natural sentiment of people for
maintaining Constitutional Morality (as
Dr Ambedkar seemed to think) rather
than in showing “less deference to the
legislature” in the matter of constitu-
tional values, as some judges seem to
think. The ugly consequence which
resulted in forcible enforcement of the
Supreme Court judgment in Sabarimala
by a government controlled by a party of
“non-believers” cannot be dismissed as a
conflict between public morality and
Constitutional Morality. It is indeed a
portent of what the attorney general
believed to be the possible outcome for
rule of law and democracy if Constitu-
tional Morality turns out to be yet
another tool beyond “Basic Structure”
for exercising judicial power.
—The author is a former Director of
the National Judicial Academy and is
presently Hony. Director of the Kerala
Bar Council MKN Academy for
Continuing Legal Education, Kochi
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
WhenConstitutional
Moralityisinvoked
byjudgesofthe
samebenchto
cometoopposite
conclusionsas
duringtheSabarimala
verdict,whatisthe
messageitgivesfor
constitutional
governanceand
ruleoflaw?
CouldDrBRAmbedkarbewrong
whenhesaidthatConstitutionalMorality
isa“sentiment”whichhastobe
cultivatedamongthepeopleasitis
notnaturaltothem?
UNI

28. Courts/ Chennai’s Spas & Massage Parlours
28 January 21, 2019
N what is a relief to owners of spas
and massage parlours in Chennai,
the Madras High Court has con-
demned the city police for wanton-
ly treating them as illegal brothel
houses. In a hard-hitting judgment,
Justice N Anand Venkatesh, who was
hearing a batch of petitions filed by vari-
ous spas and massage centres in Che-
nnai, said: “In recent times, this court
witnessed a flurry of cases challenging
the action initiated by the police against
spas and massage centers, its owners
and women working as massage thera-
pists in these centers, under the Im-
moral Traffic (Prevention) Act. In all
these cases the owners were added as
the accused and the women working in
these centers were shown as victims
involved in prostitution.”
He added: “Outlook of the society
regarding spas and massage centers
should change. Ignorance of science
towards massage centers must change.
Preconditioned mind of the majority,
who unfortunately see spas and massage
centres as brothel houses, must change
and this is an urgent need.”
The judge quashed the FIRs regis-
tered against nine therapists, including
a woman therapist from Indonesia, and
a spa called Alwarpet in South Chennai.
Explaining one case, the
judge said: “Here we have an
instance of an officer, accompa-
nied by witnesses, proceeding
into the bedroom of a young girl
and pushing open a closed door,
without having even the civility
of a knock or other warning to
her to prepare for the intrusion.
Such conduct would be quite
inexcusable, unless the officer
thereby hopes to gather the evi-
dence which is essential for
proof of any charge.”
Justice Venkatesh further
added: “The police have no legal
right to prevent a spa being
operated by anyone even if the
therapy was done by persons of
one sex to those belonging to
the opposite sex. A health spa,
where cross-gender massages is
a worldwide phenomenon, there is no
legal prohibition and to borrow the
wordings of the Supreme Court, except
the majoritarian impulses rooted in
moralistic tradition which was attempt-
ing to impinge upon individual autono-
my.” The judge also ordered a compen-
sation of `2.5 lakh to the female
Indonesian massage therapist for being
detained for 26 days by Inspector K
Natarajan of Neelangarai police station
who booked a case against her employer.
The judge also ruled that the compensa-
tion be given to her through the Indone-
sian consulate and this amount be re-
covered in monthly instalments from
Inascathingindictmentofthepolice,theMadrasHighCourtsaidthattheseestablishments
shouldnotbeseenasillegalbrothelhousesandquashedFIRsregisteredagainstninetherapists
By R Ramasubramanian in Chennai
I
Brothel Brouhaha
NOTHING TO HIDE
There are around 100 professional
spas and massage parlours in
Chennai which abide by the law
justdial.com

29. | INDIA LEGAL | January 21, 2019 29
the salary of Natarajan.
In Chennai, if anyone wants to run a
spa or massage centre, he has to get a
licence from the revenue department of
the Chennai Corporation. The licence
fee is just below `2,000 per annum and
it has to be renewed every year for the
same amount. This “hair cutting and
saloon” licence covers spas and massage
parlours also.
“There was huge misuse of this
licence from the early 1980s to 2005. All
sorts of immoral activities took place in
massage centres. In those times, there
were not many spas and around 90 per-
cent of these centres were called mas-
sage parlours and cross massages (gen-
erally women to men and men to
women) were the order of the day. But
the situation changed after 2005,” said C
Rajashekaran, an advocate with clients
who run spas and massage centres.
“After the arrival of software compa-
nies and automobile giants like Ford,
Hyundai and Mahindra in the outskirts
of Chennai, genuine visitors to these
spas and massage parlours increased.
There are over four lakh IT and man-
agement professionals working in these
sectors. Their stress levels compelled
them to visit them. This forced the arri-
val of professional spas and massage
centres in Chennai. They are profession-
als and there is hardly any chance of
them indulging in immoral activities,”
said Rajashekaran.
He said that one needs at least `5
crore to `7 crore to set up a professional
spa. This investment is needed for state-
of-the-art equipment, rentals, interior
decoration and salaries for around 10
employees. That includes an MBBS doc-
tor, therapist, yoga teacher, etc. “The
doctor teaches the therapist how to han-
dle a visitor according to his medical
condition. If a client has a specific med-
ical ailment, the therapist thoroughly
diagnoses him before administering the
relevant therapy or massage. They check
the blood pressure and pulse rate before
starting the body massage, steam
bathing, etc. So the situation has got
vastly improved from 2005 onwards,”
he explained.
P
olice sources said that there are at
least 100 professional spas and
massage parlours in Chennai
which are run strictly in accordance
with law. “They pay their annual renew-
al fees properly. But the problem is that
there are parlours indulging in illegal
activities and these are double the num-
ber of these professional centres. These
spas and massage parlours are just a
camouflage to run full-fledged brothels
and sometimes, the police is unable to
differentiate between genuine ones and
these illegal ones.”
Also, there is the potential for For-
eign Direct Investment (FDI) in this
sector. An owner of a spa and massage
centre told India Legal: “Spas and mas-
sage parlours come under tourism and
health sectors and renowned global
players are waiting to come to Chennai
and invest. But if law enforcing agencies
behave in this manner, who will come
and invest?”
He added that Chief Minister J
Jayalalithaa had conducted the first-ever
Global Investors’ Conference in Chennai
in September 2015. The second one will
be held in Chennai later this month.
Some circles are surprised that police
excesses of this sort are happening when
global investors are going to arrive
shortly in the city.
It is time that the administration
takes appropriate steps to mitigate
the situation.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Outlookofthesocietyregardingspas
andmassagecentersshouldchange.
Ignoranceofsciencetowardsmassage
centersmustchange.Preconditioned
mindofthemajoritymustchange.”
—JusticeNAnandVenkatesh,
MadrasHighCourt
Genuinevisitorstospasandmassage
parlourshaveincreasedinChennaiwith
thearrivalofsoftwarefirmsandauto
giantslikeFord(below).Thishasledto
professionalspasandmassagecentres.
autocarpro.in

30. Courts/ Judges’ Criminal Record
30 January 21, 2019
O become a judge, good
character means an un-
blemished criminal record.
The Madhya Pradesh High
Court succinctly sent out
this message by dismissing
the petitions of two advocates who had
challenged denial of their appointment
as district judges after being selected for
the posts in the entry level recruitment
in 2017.
The petitioners—Deep Narayan
Tiwari and Nand Kishore Sahu—had
argued that they had truthfully men-
tioned the criminal cases pending
against them while applying for the dis-
trict judge’s posts. They also said that
they had already been acquitted of the
charges they faced before the selection.
However, a division bench compris-
ing Chief Justice SK Seth and Justice
VK Shukla observed that mere acquittal
in a criminal case would not be suffi-
cient to infer that a candidate possessed
good character.
In its order, the bench refused to
interfere with the decision of the High
Court Scrutiny Committee that had re-
jected the petitioners for judgeship
because they had faced prosecution in
two criminal cases.
The petitioners had filed separate
petitions which the High Court clubbed
together in view of the similar nature of
their grievances. Tiwari and Sahu were
selected as district judges by the High
Court for MP Higher Judicial Service
(Entry Level) Direct Recruitment in the
Bar Examination of 2017. Their names
were included in the final list of selected
candidates. However, in their joint
TheMPHighCourtdismissedthepetitionsoftwoadvocateswhowerenotappointedasdistrict
judgesduetocriminalcasesfiledagainstthemanddespitebeingacquittedofthecharges
By Rakesh Dixit in Bhopal
T
No Room for Error
STRONG REFERENCE
The division bench of the MP High Court cited
three past verdicts to justify its decision
barandbench.com

31. | INDIA LEGAL | January 21, 2019 31
meeting, the Administrative Committee
(Higher Judicial Services) and Exam-
ination-cum-Selection and Appoint-
ment Committee rejected the two
lawyers’ selection without disclosing to
them the reason for doing so.
The petitioners took recourse to the
Right to Information (RTI) Act to
obtain the minutes of the joint commit-
tee meeting held on July 18, 2018. The
RTI information revealed that in respect
of Tiwari, the Committee noted: “After
due consideration (it is) resolved that
though a case against Shri Deep
Narayan Tiwari under sections 354/34,
186, 294 and 506-BB read with Section
34 of IPC resulted in acquittal, the case
section 305/34 Indian Penal Code and
3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act, 1989, is still pending
before Special Judge (SC/ST), Shahdol.
The candidature of the candidate is not
recommended for appointment in
view of reasons recorded.” Sahu’s
appointment was also cancelled on the
same ground.
C
hallenging this ground for can-
cellation of their appointment,
the petitioners submitted that
the criminal cases against them had
been quashed. KC Ghildiyal, the advo-
cate for the petitioners, submitted that
after the decision by the Committee,
charges in the pending criminal case
had been quashed by the High Court in
the Deep Narayan Tiwari vs State of MP
criminal appeal. The High Court had
said in this case that “he has been dis-
charged from the offence under Sections
506 and 385 of the Penal Code, 1860
and under Sections 3(1)(r) read with
3(2)(v)(a) of Atrocities Act, 1989”. The
petitioners also contended that they had
truthfully disclosed pendency of crimi-
nal cases against them while applying
for the district judge’s posts.
However, the selection committee’s
counsel submitted that the petitioners
had no right to be appointed merely
because they had honestly disclosed the
criminal cases against them. It was also
pointed out on behalf of the Committee
that Tiwari was acquitted on August 8,
2018, whereas the panel had disquali-
fied him in a meeting held on July 18,
2018. Therefore, on the date of appoint-
ment of the petitioner, the criminal
cases were still pending against him.
After hearing both sides, the divi-
sional bench cited three past judgments
to conclude that “mere selection would
not confer any right as appointment is
always subject to character verification
of a selected candidate”. The judges
referred to the full bench judgment in
Ashutosh Pawar vs High Court of MP
which was passed in January last year. It
pertained to the question of whether
acquittal in criminal cases is proof of
good conduct.
In conjunction with this, the bench
also cited the 2018 case of State of MP
vs Abhijit Singh Pawar in which the
Supreme Court held that “an employer
can certainly take into account the job
profile for which the selection is under-
taken, the severity of the charges lev-
elled against the candidate and whether
the acquittal in question was an hon-
ourable acquittal or was merely on the
ground of benefit of doubt or as a result
of composition”. The bench also referred
to the Supreme Court judgment in the
case of Union territory Chandigarh
administration and others vs Pradeep
Kumar to buttress its ruling.
The petitions were then dismissed,
with the Court observing: “We do not
find any merit in the writ petitions.
Admittedly, on the date of consideration
of the cases of the petitioners for app-
ointment, there were criminal cases
pending against them and mere selec-
tion would not confer any right as
appointment is always subject to charac-
ter verification of a selected candidate.”
Interestingly, two more judges
were disqualified by the MP High Court
in October 2017 for violating the two-
child norm, only to be reinstated six
months later.
In March 2018, the High Court rein-
stated two additional district judges
(ADJs) with the direction to grant them
all consequential benefits except salary
from the date of termination till the date
of reinstatement. Advocates Ashraf Ali
and Manoj Kumar had appeared in the
Direct Recruitment Examination and
were appointed ADJs at Jabalpur and
Gwalior, respectively, in April 2017.
When it was disclosed that Kumar had
five children and Ali three, the High
Court Selection Committee terminated
their service in September 2017. The
two ADJs moved the High Court, argu-
ing that the termination orders had
been passed without hearing them. The
High Court took note of this and or-
dered their reinstatement.
However, in the present case, there
seems no such succour.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
AnMPHighCourtdivisionbenchofChief
JusticeSKSeth(top)andJusticeVK
Shuklasaidthatmereacquittalina
criminalcaseisnotenoughtoinferthata
candidatehasgoodcharacter.

32. HE on-going tussle
between Ericsson and
Reliance Communications
(RCom) in the Supreme
Court makes an interest-
ing case study on corpo-
rate disputes and its effect on the rule of
law, as also on the public exchequer.
The case was initially fought between
Ericsson and RCom in the National
Opinion/ Ericsson-Reliance Communications Tussle
32 January 21, 2019
Company Law Tribunal (NCLT) in
Mumbai for the recovery of dues to the
tune of approximately `1,500 crore that
the latter owed to the former.
The case has also entangled the
Department of Telecom (DoT) which
has an independent claim of more than
`2,800 crore from RCom towards spec-
trum usage charges.
The dispute can be traced to 2013
when Ericsson entered into agreements
with RCom and its Group companies
(Reliance Infratel Limited and Reliance
Telecom Limited) for managing and
optimising the latter’s telecom infra-
structure.
When RCom and its subsidiaries
failed to pay Ericsson for services pro-
vided between 2013 and 2017, Ericsson
filed an insolvency petition before NCLT
in Mumbai claiming
that RCom owed it
nearly `1,500 crore.
The petition was
admitted by NCLT,
but the proceedings
were soon stayed by
the National Comp-
any Law Appellate
Tribunal (NCLAT)
after Ericsson agreed
to settle for `550
crore if that amount
was paid within 120 days. RCom failed
to do so and the case went to the
Supreme Court in August 2018, when
RCom gave an undertaking that it
would pay the agreed sum by September
30, 2018.
In the meanwhile, DoT, which
became concerned over RCom’s finan-
cial health owing to the NCLT proceed-
ings, issued it a demand notice for pay-
ment of dues of spectrum usage charges
from 2006-07 onwards.
This had to be either paid or secured
by bank guarantees before the Depart-
ment could approve a proposed deal
between RCom and Reliance Jio for sale
of the former’s airwaves.
According to DoT, RCom’s spectrum
dues had to be paid or secured by bank
guarantees either by RCom (the seller)
Caught in
a Tangle
T
AsRComfailedtopayEricssonbythe
extendeddeadline,thelatterreacted
stronglywithacontemptpetitionin
theSupremeCourtseekingcivil
imprisonmentofRCom’schairman,
AnilAmbani.Themoveprompted
RComtomakeapartpaymentof
`131croreincourt
RCom’sattempttopayEricssonforitsserviceswithaplanto
sellairwavestoRelianceJiohasledtoatriangularcontestand
astalemateintheSupremeCourt
By Apoorv Kurup

33. | INDIA LEGAL | January 21, 2019 33
RCom-Reliance Jio spectrum sale.
However, the government has recently
declined to approve the deal after
Reliance Jio refused to commit to pay
RCom’s past dues for spectrum usage
charges.
As expected, RCom failed to pay
Ericsson by the extended deadline.
Ericsson responded strongly with a con-
tempt petition in the Supreme Court
seeking civil imprisonment of RCom’s
chairman, Anil Ambani. The move
prompted RCom to make a part pay-
ment of `131 crore in court.
RCom’s attempt to associate its pre-
vious undertaking to pay Ericsson with
its plan to sell airwaves to Reliance Jio
is creating a triangular contest between
Ericsson, RCom and DoT.
This is ultimately leading to a stale-
mate that the Supreme Court realises
is not in anyone’s interest. (Court
orders indicate that the agreement
between Ericsson and RCom was not
predicated on funds that RCom hoped
to raise from its sale of spectrum to
Reliance Jio.)
Moreover, RCom gave an undertak-
ing to the Supreme Court that it would
pay Ericsson by a stipulated date. Such
solemn promises voluntarily made in a
court of law by a party skilled in com-
merce should not ordinarily be rescind-
ed or caveated, particularly when they
form part of a settlement that was
reached for the very purpose of expedi-
tiously ending litigation.
Insofar as DoT’s spectrum dues are
concerned, it is public money which
should be paid or secured as best as pos-
sible and with minimal exposure to fluc-
tuating market valuations of land or the
worth of a company. Bank guarantees
are, and will continue to be, the surest
and most viable mechanism for securing
public revenue.
—The writer is a
Supreme Court advocate
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
or Reliance Jio (the purchaser) by fol-
lowing the Department’s Spectrum
Trading Guidelines of 2015.
According to these guidelines, the
seller must clear all its dues prior to
concluding any agreement for spectrum
trading. The government is also entitled
to recover amounts which were not
known to the parties at the time of the
effective date of trade from the buyer
and/or seller. The guidelines also state
that any such trade in airwaves can be
permitted only after the rights and lia-
bilities of the seller are transferred to
the buyer.
RCom, which challenged DoT’s
demand notice in the Telecom Appellate
Tribunal (TDSAT), denied that it owed
the spectrum charges because the
Department’s method for calculating
such dues did not comply with a prior
TDSAT judgment (which has been
appealed but has not been stayed by the
Supreme Court).
RCom also contended that it urgent-
ly needed to sell its spectrum to
Reliance Jio to raise funds to repay
debtors such as Ericsson.
After a prolonged battle, TDSAT
passed an interim order in October 2018
directing DoT to permit the spectrum
sale between RCom and Reliance Jio on
the condition that the former would
secure 50 percent of the spectrum dues
claimed by DoT by pledging certain
lands owned by a subsidiary in Navi
Mumbai. RCom was, therefore, not
required to furnish bank guarantees.
That same month, the Supreme Court
granted RCom a final extension up to
December 15, 2018, to pay the amount
owed to Ericsson.
The fate of Ericsson’s dues, which
RCom had separately undertaken to
pay, was now inextricably linked to
DoT’s dues.
D
oT appealed against TDSAT’s
interim order in the Supreme
Court. The Court asked RCom
to furnish a corporate guarantee in
addition to the pledge of land. It con-
currently directed DoT to approve the
AccordingtoDoT,RCom’sspectrumdues
hadtobepaidorsecuredbybank
guaranteeseitherbyRCom(theseller)or
RelianceJio(thepurchaser)byfollowing
theSpectrumTradingGuidelinesof2015.

34. Commerce/ GST Revenues
FTER one and a half
years of GST implemen-
tation, policymakers are
grappling with two imp-
ortant issues. The first is
a drop in compliance rate
of tax filers and the second is a substan-
tial fall in GST revenue collection; both
are interconnected to a great extent.
Union Minister of State for Finance
Shiv Pratap Shukla, in response to a
question raised in the Lok Sabha, rec-
ently said that the percentage of taxpay-
ers who had not filed returns associated
with payment of GST has steadily
increased from 10.56 percent in Novem-
ber 2017 to over 28 percent in Novem-
ber 2018. The data further showed that
under the composition scheme where
traders, manufacturers, and the like pay
a nominal tax annually based on turn-
over and where the compliance proce-
dure is simple, the percentage of non-fil-
ers has risen to 25.37 percent in July-
September 2018 as against 15.03 perc-
ent in the corresponding period of 2017.
One of the basic objectives of the
introduction of GST was to keep the
Inaseeminglyworryingdevelopment,therehasbeenadropincompliancerateandarevenue
shortfall.Butgoingbyinternationalexperience,theseissuescouldgetsortedwithintwoyears
By Sumit Dutt Majumder
Photos: UNI
A
Where’s the Money, Honey?
HEAR US, TOO!
Akhil Bharatiya Udyog Vyapar
Mandal activists protesting
against GST in Lucknow
34 January 21, 2019

35. compliance burden simple and tax rates
moderate, thus ensuring voluntary dis-
closure by taxpayers. This was expected
to lead to a larger tax base, which in
turn was to give the tax buoyancy. How-
ever, that has not happened as evident
from the data above.
L
et us first try to understand the
issue of missing taxpayers, i.e.,
taxpayers who have stopped filing
tax returns. The obvious reason for the
drop in filing returns is non-payment of
tax. When GST was hurriedly imple-
mented on July 1, 2017, there were many
flaws, including GSTN, the IT infra-
structure, which was not fully in place
and beset with many glitches.
One clause stated that inter-state
suppliers of goods and services would
not be entitled to any threshold exemp-
tion. This meant that a supplier of goods
and/or services based in Okhla in Delhi
would have to pay GST, even if his turn-
over was below the threshold, the
moment he supplied to a purchaser in
Gurgaon in Haryana or Noida in Uttar
Pradesh. There was another clause relat-
ing to reverse charge mechanism. If a
registered taxpayer purchased goods
and/or services from an unregistered
supplier whose turnover was below the
threshold and hence did not need to be
registered, the former would be in a
soup. Either he would have to pay the
GST and file returns on behalf of the
unregistered supplier, or ask the latter
to get registered even though his turn-
over was below the threshold.
In order not to lose business, some
unregistered suppliers of goods and/or
services got themselves registered and
paid GST although their turnover was
below the threshold. These two clauses
coupled with a very low threshold dis-
rupted small businesses. This, in turn,
led to the closure of many small estab-
lishments and consequent unemploy-
ment.
Realising the far-reaching fallout of
going overboard in formalising the in-
formal sector of small business, the GST
Council relaxed the compliance burden
a few months later. First, the clause
regarding disentitlement of threshold
benefit for inter-state suppliers of serv-
ices (not goods) was kept in abeyance.
Second, the clause relating to reverse
charge mechanism was also kept in
abeyance. Consequently, a substantial
number of suppliers of goods and servic-
es, who had got themselves registered
and paid GST in the initial months be-
cause of these two clauses, got them-
selves unregistered and stopped paying
GST and filing returns.
It is not clear whether this important
aspect has been factored in while deter-
mining the percentage drop in compli-
ance rate of tax filers. If not, the per-
centage drop will have to be recalculat-
ed. In either case, one will have to act on
the compliance shortfall, whatever may
be the number.
It is not difficult to identify the
traders who were registered but were
not filing returns. Thereafter, leaving
aside the traders who have stopped pay-
ing tax for legitimate reasons as explain-
ed above, GST officers can proceed
against other registrants who have not
been paying tax and filing returns.
GST is based on the principle of
trusting and facilitating trade, while
simultaneously taking stern action
against those who are non-compliant.
There are elaborate enforcement provi-
sions such as search, seizure, arrest, etc,
under GST laws. The structure of GST
is such that not many officers are now
necessary for the basic assessment work
as it follows the principle of self-assess-
ment. The main responsibility of officers
is now in the areas of scrutiny of re-
turns, including detection of non-filing,
selective audit based on risk factors and
collection of intelligence, detection of
cases of non-compliance and follow-up
enforcement action.
In fact, in his written reply to Par-
liament, the minister stated: “The
Toeasethecomplianceburden,theGST
Councilhaslatelytakensome
correctivemeasures.Thedecisiontotake
outseveralitemsfromthehighest28
percentslabwasonesuchstep.
| INDIA LEGAL | January 21, 2019 35