The digital identification parade

Article in the Indian Express dated July 29, 2019 regarding Digital identification (Right to Privacy) by Aayush Rathi and Ambika Tandon, Researchers at the Centre for Internet and Society. Link to this article:

http://epaper.indianexpress.com/c/41916528

Understanding cryptocurrencies: what's to like and what's to fear

Article in the Indian Express dated July 29, 2019 regarding Cryptocurrencies by Udit Misra. Link to this article:

http://epaper.indianexpress.com/c/41916348

What new amendments mean for Right to Information Act

Source: The Times of India dated 29.07.2019

The Right to Information (Amendment) Bill, 2019, was passed in the Rajya Sabha on Thursday amid high drama and an Opposition walkout. The Opposition says the changes put forth in the bill, which had already cleared the Lok Sabha, undermine the independence of the RTI watchdog. The government has argued that the amendments leave the information officials’ powers untouched and are aimed at streamlining the commission. A look at the changes being effected by the amended Act

1 No fixed tenure, or salaries, Centre says it’s a statutory body

The amendments do away with the fixed tenure of five years for the Chief Information Commissioner (CIC) and the Information Commissioners — instead, they will serve for a tenure determined by the central government.

Also, the Centre can now determine the salary of the CIC and the ICs, which is currently benchmarked with the salary of the Chief Election Commissioner (CEC) and the Election Commissioners, respectively, which in turn is benchmarked with the salary of a Supreme Court judge, amounts to Rs 2.5 lakh per month, along with a monthly allowance of Rs 34,000 and the usual perks like rent-free furnished housing and 200 litres of fuel every month.

After the amendments, the government has the power to fix the salary, which could be lower — given that the Information Commission is a statutory body unlike the EC, which is a constitutional body. However, the current incumbents’ salaries will not be affected by the amendment.

2 Centre to decide appointments, even for state CIC, ICs

Currently, the CIC and ICs are chosen by a three-member panel of the PM, the Leader of Opposition or leader of the largest opposition party in the Lok Sabha and a Cabinet minister nominated by the PM. Similarly, the State Chief Information Commissioners (SCIC) and State Information Commissioners (SIC) are chosen by a three-member panel of the CM, the state’s leader of opposition or leader of the largest opposition party in the state assembly and a state Cabinet minister nominated by the CM.

The amendments give the power to appoint and decide the term as well as the salary of SCIC and SICs to the Centre — which nullifies the independence of the state legislatures. Even the CIC and the ICs will serve at the pleasure of the government — raising the possibility that they would be more interested in ensuring the longevity of their tenures rather than serving the citizens’ interests.

3 Extended tenures possible

Current rules stipulate that no CIC, IC, SCIC or SIC can serve more than one term, which is for a maximum period of 5 years or till the age of 65, whichever is earlier. For ICs and SICs, if one of them is nominated to the post of CIC or SCIC, his/her total tenure as both IC and CIC or SIC and SCIC cannot exceed 5 years. Since the amended Act gives the government the power to fix tenures, there’s every likelihood that an incumbent seen as pliable or ‘friendly’ to the Centre may get to serve more than one term.

4 And termination in Centre’s hands?

If the tenure of the CIC, IC, SCIC and SIC are to be fixed by the Centre, it may follow that their removal from office may also be dependent on the Centre, whereas in the original bill, the CIC and IC may be removed only by the President — and the state governor in case of SCIC and SIC — after an inquiry by the Supreme Court finds reason for their dismissal from office.

Amend The MTP Act

Source: The Times of India dated 29.07.2019

Amend The MTP Act: Current version is archaic and causes needless suffering to pregnant women

Nikhil Datar (The writer is a gynaecologist and health activist)

When a woman by her own free will decides to terminate her pregnancy, it is called as an abortion. Before 1971, abortion was a crime in India. Women had no choice but to undergo illegal abortions due to which many women died or suffered per manent damage.

To prevent such damage to women’s health, Parliament took a bold decision and passed the “Medical Termination of Pregnancy Act” in 1971. This law allows a woman to undergo an abortion only under certain conditions. A woman can seek abortion if the doctor confirms that the fetus in the womb has serious abnormality or if the continuation of pregnancy could cause mental or physical harm to the woman. The law allows a woman to undergo abortion only till 20 weeks. Despite this law, 13 women die every day due to unsafe abortions carried out illegally.

By conducting tests like sonography between three to six months of pregnancy, the doctor can detect abnormality in the fetus. When a pregnant woman learns that death or extremely poor quality of life (after birth) is inevitable, she may want to abort the fetus. In India, 26 million women are pregnant at any given time. Most of them are dependent on the healthcare facilities provided by the state. It is quite a common occurrence that by the time a woman learns about the problem and takes that difficult decision of abortion, her pregnancy has gone past the 20 weeks cutoff permitted by the MTP Act.

In 1971, techniques for termination were primitive and risky. Today, doctors can safely induce the process of abortion mimicking natural delivery at any stage. Yet the doctor has no choice but to refuse such an abortion if the pregnancy has crossed the arbitrary cutoff of 20 weeks. Carrying it out is a criminal offence for which the woman and the doctor both could be jailed. There is a chance that such a woman may undergo illegal abortion in the hands of a quack, risking her own life.

I challenged this illogical provision in 2008 by filing a case, Nikhil Datar vs Government of India. Since this milestone case, i have helped more than 90 women seek justice. In these cases the courts set a committee of doctors from government hospitals. The medical knowledge that late abortion is safe, seriousness of the fetal abnormality along with the helplessness of the woman convinced the committees to give reports in favour of termination.

The judges took bold decisions, read beyond the letter of the law and allowed these late abortions. Despite this, courts can only take a case by case approach. Thus the systemic problem continues to exist unless Parliament amends the MTP Act. Unfortunately the Centre and state governments have been passive spectators for more than a decade now.

All these cases where courts allowed termination of pregnancy beyond 20 weeks were successfully and safely handled. Most of them were done in government hospitals. In most of these cases, the process of abortion was induced using medications and the women aborted through the vaginal route (like normal delivery). However some ethical questions have come up. Some of the fetuses were born with signs of life especially when the gestation was beyond 24 weeks. This led to a confusing situation.

In a naturally occurring severely premature birth, the parents are counselled about poor prognosis. If parents wish and consent, comfort care or palliative care is offered. But what does one do in a case of termination of pregnancy?

In order to avoid these complex situations, doctors in the UK and other Western countries carry out a medical procedure that stops the beating heart before the abortion is induced. Indian doctors do the same procedure, albeit before 20 weeks. When courts allow late terminations, it is unclear if doctors can stop the beating heart before termination is conducted.

Although the judiciary has been very sensitive and swift in disposing such cases, it still amounts to delay. The woman has to go through a lot of hardships to reach the high court. The cases that reach courts are only the tip of the iceberg, the problem is a lot larger in magnitude. There will be thousands of such women in the country who have no scope of even reaching the court for legal remedy.

Thus the only solution to the problem is amending the MTP Act through Parliament. The MTP Act needs to be amended immediately in line with modern medical advances and international ethical principles. The archaic and arbitrary cutoff of 20 weeks needs to be removed.

Having said that the safety of women and possibility of abuse of law also needs to be kept in mind. The state should identify a separate cadre of healthcare facilities to provide safe terminations after 20 weeks of pregnancy. There is an immediate need to clarify the legal status of an unborn fetus when termination is being considered. Moreover, the state needs to create elaborate working guidelines for doctors while they undertake such terminations. Meanwhile in the short term, the state can pass an ordinance with immediate effect to bring about the said changes.

Unless the law is amended keeping pace with modern medicine, the dignity and welfare of women who have resorted to such a desperate measure to safeguard their and their unborn fetuses’ quality of life cannot be upheld.

HC to IT dept: Addl tax demand without serving notice invalid

Source: Hindustan times dated 29.07.2019

• KAY Dodhiya abbas.dodhiya@htlive.com
• 
  
• THE HC DIRECTED THE IT DEPT TO RELEASE THE ATTACHMENTS ON THE PETITIONER’S BANK ACCOUNTS
• 
  
• MUMBAI: The Bombay high court has ruled that if a taxpayer does not receive an official notice to pay additional taxes for a previous assessment year, then the Income Tax Department’s order will be considered invalid.

  The HC gave the order while hearing the petition of a woman, a senior citizen who was asked to pay additional taxes for assessment year 2011-12. The court was informed she was not aware of the reopening of her case. The IT department said they had tried to inform the woman but after they failed, they passed an ex-parte order and also froze her bank accounts. The division bench of justices Akil Kureshi and SJ Kathawalla was hearing the petition filed by the woman through advocate Anupam Dighe. It was submitted that the woman is a widow and after the death of her husband, she had moved to Jabalpur.
  Dighe told the court that though the woman had a PAN card, as she was a housewife she never filed returns. Hence, when her bank accounts were frozen she inquired with the bank and was informed that it was done at the behest of the IT department. However, the IT department submitted there had been high-value transactions in the woman’s account in the year 2011-12 and as there was escaped income, they had decided to assess the tax liability. The counsel said notices were issued to the woman at the residential address mentioned in her PAN card but they had been returned. The counsel said that during reassessment the officer concerned had again issued notice to the woman but they had been returned too.

  Dighe pointed out that as per the Income Tax Act, notice had to be served on the assessee before the officer could proceed with the assessment, which was never done. In light of the rules of serving notices and summons as mentioned in the Act, the HC said, “Reopening of assessment was invalid. No valid assessment thereon could have been framed.”
• If the Income Tax (IT) department asks you to pay additional tax for a previous assessment year without serving notice to you beforehand, such additional tax demands are invalid, the Bombay high court has said.

For the court, how much is too much?

Source: Hindustan Times dated 29.07.2019
RISHAD A CHOWDHURY Rishad A Chowdhury is an Advocate-on-Record at the Supreme Court and Partner, Verus

If the bona fides of constitutional authorities are suspect, should the Supreme Court step in?

The events of the past few weeks in Karnataka have thrown the actions of various constitutional functionaries into the realm of critical scrutiny. The speaker’s decision to take time to consider the resignations submitted; the governor’s insistence on a trust vote; the chief minister’s attempt to prolong the trust motion over several days; and the motives of the large number of legislators changing sides – all of these are under suspicion.

How, if at all, should the apex court have responded? Is a completely laissez-faire approach to the actions, even if suspect, of high constitutional offices such as that of the speaker or the governor, desirable or even feasible? What level of deference is to be accorded to these decisions, and when shall the

Lakshman Rekha be judged to be crossed? Much of constitutional and administrative law doctrine is predicated on a basic assumption of the essential bona fides of decisionmakers. The law responds to, and acknowledges, this by affording a fairly high level of deference to the decision-maker of first instance. When the person concerned is a high constitutional authority, the deference is close to absolute. One question the Karnataka legislative assembly crisis, and several others in recent years, have posed is how to respond when this underlying assumption appears to no longer be justified?

One answer might be that a greater degree of judicial scrutiny, and higher frequency in intervention, is warranted. And in a variety of constitutional matters in recent years, this has, in fact, happened. But the Supreme Court’s experience in the present case shows some of the limitations, and pitfalls, of such intervention. One is that, quite often, there are no easy answers. Human nature being what it is, the motivations of all actors are complex and multi-layered. Legal principle may tell you that decisions on extraneous or mala fide considerations are subject to judicial correction, but identifying these in a fast-moving and politically fraught situation is easier said than done. This is particularly challenging for a constitutional and appellate court like the Supreme Court.

Facts are primarily gathered from affidavits and pleadings submitted, and in a bitterly contested terrain, factual certainty is hard to achieve. Some of this is possible through court-appointed Commissioners, amicus curiae and the like, but all of that takes time too. When the proverbial knock on the door comes at 2 AM, hurried interim orders, even with the best of intentions, are as likely as not to miss crucial nuances and perhaps make matters worse.

So the courts must, undoubtedly, act cautiously, but should they not act at all? The US Supreme Court has recently grappled with a similar dilemma in the context of some of the most egregious political abuses in their system of government – partisan gerrymandering (strategic reshaping of the boundaries of voting districts) to disproportionately increase the number of seats likely to be won by a given political party.

In Rucho v. Common Cause, a closely divided court held, by a 5:4 majority, that such gerrymandering presented political questions beyond the reach of the courts. The majority judgment, authored by Chief Justice Roberts, held that the Constitution had expressly entrusted districting to the political branch of government and that some partisanship was, therefore, inevitable. The court further reasoned that the constitutional challenge effectively amounted to asking, “How much is too much?”, and that this could not be resolved on the basis of manageable judicial standards. In a sharply-worded dissent, Justice Elena Kagan accused the majority of abdicating its judicial role by condoning constitutional violations going to the core of the democra ic process. The courts have to deal with matters of degree in all sorts of contexts, she pointed out, and given the overwhelming evidence of deliberate undermining of the opportunity of equal participation in the political process in the facts of the case, “This much is too much”.

Closer home, our Supreme Court will have to continue to grapple with the question - “How much is too much?”. Given structural and cultural differences, the Indian Supreme Court is confronted with such politically thorny questions in different forms, and arguably more frequently, than some other constitutional courts across the world. A large number of Benches, and the fairly short tenure of judges, also complicates matters by injecting uncertainty and unpredictability into the legal process. But the core judicial challenge remains.

Keeping in mind the relatively high regard the Supreme Court is held in by varied sections of the Indian polity, but also given inherent institutional limitations, how and when can it best enforce the rules of the game? How can it encourage our noisy and chaotic democracy to be the very best version of itself? None of these questions admit to easy answers. And so the court’s task, in the Karnataka case but also more generally, is a critically important but none-too-enviable one.

Justice Shah questions accountability for judges

Source: The Times of India dated 29.07.2019

Pradeep.Thakur@timesgroup.com

New Delhi:
Speaking about the recent allegation of sexual harassment against the Chief Justice of India, former Law Commission chairman Justice A P Shah said the entire process of handling the complaint was shrouded in secrecy in the name of protection of judicial independence. He claimed that the last three CJIs violated the principle of no man being a judge in his own case.

“A permanent employee of the SC was removed from her post on the flimsy allegation of her having taken a half-day casual leave, and protesting her seating arrangement. Her relative was dismissed from the same service soon thereafter. She made allegations of sexual harassment against the CJI, in response to which there was an unusual hearing that took place on a Saturday without a petition having been moved,” said Justice Shah, who retired as chief justice of Delhi HC in 2010 and served as chairman of the Law Commission between 2013 and 2015.

In what was termed a “matter of great public importance touching upon the independence of the judiciary”, the person holding the highest judicial office in the land sat as a judge in his own cause, Justice Shah said. “Three judges attended that hearing, but the order that emerged was surprisingly signed only by two, with the CJI choosing to abstain,” he said while delivering the Rosalind Wilson Memorial Lecture here on Sunday.

He also questioned the rationale of the SC’s registrar general issuing a public statement that the complaint was false. All this demands a relook at the accountability system for judges in India, he said.