Patna HC bench junks judge’s order

Source: Times of India dated 30.08.2019

Debashish Karmakar, Patna

He Had Made Allegations Of Rampant Bribery In Civil Court

A Patna high court 11-judge bench suspended on Thursday a single-judge bench’s order of a day earlier directing a CBI inquiry into “rampant bribery” in the city civil court, a move described as unprecedented in the state’s legal history. The 11-judge bench, headed by chief justice Amreshwar Pratap Sahi, not only termed Justice Rakesh Kumar’s single-bench order “null and void under law” but also questioned his jurisdiction.

On Wednesday, Justice Kumar had made adverse remarks about the “Patna judgeship” while ordering a CBI probe into bribery allegations that had featured in two separate sting operations carried out by private TV channels in December 2017.

He had also suo moto revived the matter of the anticipatory bail petition of scam-accused retired IAS officer K P Ramaiah. He directed the Patna district and session judge to conduct an inquiry and submit a report within four weeks on how, and under what circumstances, Ramaiah was granted bail after surrendering. On March 23 last year, Justice Kumar had rejected the bureaucrat’s plea keeping in view the serious nature of allegations against him.

In relation to Justice Kumar’s oral order for the listing of the case without mentioning any directive from the chief justice, the 11-judge bench observed that the judge had overstepped his judicial limits for “gaining yellow-page fame”. Before delivering the order, the chief justice summoned the court master attached to Justice Rakesh Kumar and took a written explanation from him on how and on whose orders he had acted to get the matter listed. He also took note of the involvement of all HC officials who acted to get the case listed and wanted to know how the counsel for the state and the accused got to know the matter was listed.

Taking suo moto cognizance of the case from news items on Thursday on Justice Kumar’s order, the 11-judge bench observed, “It seems the learned judge assumed himself to be pure as 24-carat gold. His order was malicious and delivered with prejudice. He committed grievous error by assuming a jurisdiction which was not available to him under any law for the time being in force, not even by administrative order of the chief justice seems the learned judge assumed that whatever he has perceived from his experience is all 24-carat truth and, except himself, the rest of the world had created misery around. His order was malicious and delivered with prejudice. He committed a grievous error by assuming a jurisdiction which was not available to him under any law.”

Justice Kumar had directed that his order be communicated to the CJI as well as the SC collegium judges, the PMO and the Union ministry of law and justice. He had urged the SC to take appropriate steps to reintroduce the policy of transferring judges from their parent HC after elevation to plug “incidents of favouritism and corruption”. The 11-judge bench directed that all matters pending before Justice Kumar be withdrawn immediately. A notice in this regard was included in Thursday’s cause-list of the high court. During Wednesday’s hearing, Justice Kumar had directed the Patna district and session judge to conduct an inquiry and submit a report within four weeks on how Ramaiah was granted bail.

The SC does not need more judges

Source: Hindustan Times dated 29.08.2019

By Gautam Bhatia
Limit the court’s exploding jurisdiction, and ensure clarity and consistency in its judgments

In the first week of August, the Lok Sabha passed a bill to increase the strength of Supreme Court (SC) judges from the present 30 to 33. The bill followed from a letter written by the Chief Justice of India (CJI) , where this suggestion had been first mooted as a way of decreasing the massive backlog of cases at the SC.

It is true that India has one of the worst judges-to-population ratio in the world. However, while intuitively, increasing the number of judges might seem to ease problems of pendency and backlog, the reality is more complicated — especially at the SC. The first thing to note is that a major reason for pendency at the SC is not a shortage of judges, but the court’s own ever-expanding jurisdiction. As the highest court in the land, the SC is expected to hear cases selectively. The original intention of the constitutional framers was that it would decide constitutional cases, disputes between states and the Centre, or substantial questions of law (especially where there was a disagreement between different high courts).

And this was indeed how the SC functioned in its early days. In case there was a substantial question of law involved, the high court that first heard the case would, of its own accord, grant to the parties a “certificate of leave to appeal” to the SC; without that certificate, a party would be forced to file a “special leave to appeal”, which, in an overwhelming number of cases, would be rejected. This is still the procedure followed in many other courts — including the Supreme Court of the United Kingdom — in order to ensure that the workload of the highest court is manageable.

Justice Kureshi case: Govt asserts role in judge appointment

Source: Times of India dated 29.08.2019

(Pradeep Thakur) New Delhi:

Asserting its role in judicial appointments, the Centre has asked the Supreme Court collegium to consider Justice Akil Abdulhamid Kureshi, who has been recommended to be appointed as chief justice of Madhya Pradesh High Court, for some other HC instead.

The law ministry made the suggestion in a letter to the CJI, sources said. The SC collegium had earlier given the government a deadline of August 14 to offer its view on appointing Justice Kureshi as chief justice of Madhya Pradesh High Court.

CJI Ranjan Gogoi said he would place the Centre’s letter before the collegium for a decision. Justice Kureshi is currently a judge of Bombay HC. His parent bench is Gujarat HC where he was first appointed as additional judge in 2004. He will serve as a judge of the HC till 2022.

The SC collegium recommended to the Centre on May 10 to appoint Justice Kureshi as chief justice of MP HC along with three other recommendations for appointment of chief justices in the high courts of Telangana, Himachal Pradesh and Delhi.

The government appointed the other three chief justices as per the recommendations of the collegium, except for Justice Kureshi. While the collegium’s recommendation on Justice Kureshi was pending, the government went ahead and notified appointment of Justice Ravi Shanker Jha as acting chief justice of MP HC on June 10.

After the government withheld the recommendation on Justice Kureshi, the Gujarat HC Bar Association filed a petition in the SC seeking a direction to the Centre to implement the collegium’s resolution. The government told the SC on August 2 that it would take a decision after the Parliament session to which the SC kept the petition pending with a direction to the Centre to make the appointment by August 14.

In his first comments after taking charge of the law ministry on June 3, Ravi Shankar Prasad had said he should not be treated as a post office. The minister’s remarks were in reference to appointments to higher judiciary recommended by the Supreme Court collegium.

Deserted, can woman claim right to reside at in-laws’?

Source: Times of India dated 29.08.2019

By Amit Anand Choudhary. New Delhi:

The Supreme Court on Wednesday agreed to examine whether a woman deserted by her husband could claim residential right in her in-laws’ house where she had been living after marriage?

A bench of Justices N V Ramana, M M Shantanagoudar and Ajay Rastogi issued notice to the Centre asking whether residential right could be given to a woman under Protection of Women from Domestic Violence Act on a plea filed by a Muslim woman who alleged that her husband her deserted her in 2004 and her in-laws threw her out of her matrimonial house.

Petitioner Shabnam Ahmed, a mother of three, claimed that her husband went to the UK 15 years ago and did not come back. She claimed that her husband divorced her illegally by pronouncing triple talaq in 2007 on phone and her in-laws threw her out along with her daughter. Her two other children are still living with her in-laws.

Shabnam, 40, had first approached the trial court seeking residential right in the house but her plea was dismissed in 2018 and she approached the apex court directly against the trial court order.

Justifying filing the petition in the SC instead of moving an appeal in the high court, senior advocate R B

Singhal and lawyer Nilofar Khan told the bench that Shabnam’s plea for residential right was rejected by the trial court by relying on an SC judgment of 2007.

They urged the court to reexamine the verdict as the provision pertaining to residential right was narrowly interpreted and was affecting the rights of women in matrimonial disputes. In 2007, the SC had said the wife was not entitled to seek residential right if the house in which she lived with her husband belonged to the in-laws.

Singhal told the court that there was difference of opinion among HCs on residential right claimed by the wife in a shared household belonging to the in-laws and requested the bench to adjudicate the issue to end contradictions. He said the 2007 verdict was against the spirit and objective of the Protection of Women from Domestic Violence Act.

The petitioner claimed that she was forced to live hand-to-mouth after being thrown out of her matrimonial house and was surviving on the support of her friends, including her lawyer, as her parents were no more. She said her husband had remarried and her in-laws cut off ties with her and refused to provide any help on the ground that they had disowned their son. She said she was forced to take legal recourse in 2013 after her parents died as she had no place to live.

For a safer world of work

Article in the Indian Express dated August 21, 2019 regarding ILO Convention on the human right to freedom from sexual harassment by Upendra Baxi (Professor of Law at University of Warwick and former VC of Universities of South Gujarat and Delhi). Link to this article:

http://epaper.indianexpress.com/c/42780246

Why is age of marriage different for men and women? the law, the debate

Article in the Indian Express dated August 21, 2019 regarding Uniform age of marriage by Apurva Vishwanath. Link to this article:

http://epaper.indianexpress.com/c/42743450

Privacy rights, wrongs

Editorial in the Indian Express dated August 22, 2019 regarding Regarding Privacy rights and Security. Link to this article:

http://epaper.indianexpress.com/c/42741504

Justice delayed: vacancies, adjournments, vacations are bogies

Article in the Indian Express dated August 21, 2019 regarding Delayed Justice by Madan B. Lokur (Retired Judge, Supreme Court of India). Link to this article:

http://epaper.indianexpress.com/c/42691193

Law minister for discipline, accountability in all courts

Source: Hindustan Times dated 16.08.2019

... There should be a fast-track approach for disposal of old appeals. Take up 10-year-old cases in priority and then come to five years’ old --  RAVI SHANKAR PRASAD, Union law minister.

Ravi Shankar Prasad stresses need to fast-track approach for disposal of old cases.

Union law minister Ravi Shankar Prasad on Thursday laid stress on taking in-house corrective measures to ensure discipline, judicial propriety and accountability in all courts, and criticised some of high courts for procrastinating PILS.

Prasad was speaking on the occasion of Independence Day in the apex court lawn where Chief Justice of India Ranjan Gogoi unfurled the national flag in the presence of other dignitaries, including Attorney General KK Venugopal and senior advocates. Prasad said there should be a fasttrack approach for disposal of old appeals as criminal and civil appeals of 1980s are still pending in high courts.

“The way PIL is being detained in some states by the high courts as if they are running parallel to their state governance. What should be done?...equally important is that in-house corrective measures should be there including in the apex court to ensure discipline, judicial propriety and accountability,” he said.

Prasad added, “I see criminal appeals of 1982/83 still pending in the high courts. I don’t want to take names but they are pending in high courts. Civil appeals of 1977/78 are pending and even the first appeals are pending...there should be a fast-track approach for disposal of old appeals. Take up 10-year-old cases in priority and then come to five years’ old.”

The law minister also said the way some of the judgements were passed by some of the high courts was “arbitrary”. “Some judges, just two days to their retirement, give judgements of questionable validity and sit on television for three days to justify it. I don’t think it should be done. there has to be a forum,” he said. The Centre has no business to interfere as far as adjudication process of justice was concerned.

Talking about infrastructure, Prasad said that the proposal of setting up of 1,023 special fasttrack courts to deal with cases under the POCSO Act will be done. He further said that a committee has been set up to ensure security of lawyers.

Attorney General Venugopal also expressed concern over the pending criminal and civil appeals and said there should be an intermediate court of appeal between the Supreme Court and the HCS in each of the four regions — east, west, north and south — of the country. “When I was looking at the cause list of the Supreme Court yesterday, 30 civil appeals were there which were pending from 2007, which is about 12 years. Just imagine such cases are also pending in high court and the district courts, maybe for 9 or 10 years. We require a bold person today to address the court system in our country,” said the law officer. There should be distinct judges constituting the court of appeal and the collegium system of the apex court should be the basis of their appointment too, he added.

Law and injustice: instead of a separate law on triple talaq, Centre should have framed a just law for all

Article in the Indian Express dated August 14, 2019 regarding Triple Talaq by Razia Patel (Chairperson, Muslim Mahila Sanvidhan Hakka Parishad). Link to this article:

http://epaper.indianexpress.com/c/42474431

SC accepts plea bby couple, says no need to register marriage under special law

Article in the Indian Express dated August 13, 2019 regarding the Marriage laws. Link to this article:

http://epaper.indianexpress.com/c/42437257

Our notions of motherhood: Bill to promote altruistic surrogacy gives short shrift to women's legacy

Article in the Indian Express dated August 9, 2019 regarding the Surrogacy (Regulation) Bill, 2019 by Gargi Mishra (Gender Rights Lawyer, Delhi). Link to this article:

http://epaper.indianexpress.com/c/42309752

Judicial dichotomy, EWS quota

Source: DNA dated 09.08.2019

by Yogesh Pratap Singh (Registrar,National Law University, Odisha)

The Constituent Assembly and numerous Supreme Court judgments have restated that economic criterion cannot be the sole basis for granting reservation.

In spite of that, the Modi government announced 10% quota for economically weaker section (EWS) through 103rd Constitutional Amendment Act. This political move has been confronted, but the apex court refused to grant an interim injunction on the EWS quota.

In a similar move, the Supreme Court refused to stay the Bombay High Court’s decision to uphold reservations for the Maratha community in educational institutions and jobs in public services in Maharashtra.

Apex Court’s denial to grant an interim injunction on EWS quota and the Maratha quota exhibits an abundant dichotomy in judicial policy while dealing with social justice.

Judicial discourse on reservation beginning 1950, focused on expanding formal equality as enshrined under Articles 15(1) and 29(2) and drastically confining the principle of substantive equality inherently embedded in Articles 14, 15, 16, 38, 46, 332, 335, 338 and 340.

This strategy was initially developed to pre-empt claims of proportionate representation in educational institutions on mythical grounds.

The first-ever attempt for reservation did not find favour with the Constitution bench composed of upper caste elite judges in Champakam Dorairajan case (1951) because it marginally restricted upper caste space by prescribing their percentage of representation and created some space for Bahujan students in the process.

This left no option for a determined Periyar and Babasaheb Ambedkar to claim the Bahujan space in educational institutions by convincing the Parliament to pass the First Constitutional Amendment, which enabled the State to make special provision for the representation of Bahujan class in educational institutions.

Despite this, constitutional courts deployed the ‘judicial policy of postponement of social justice’ to deny Bahujan representation both in educational institutions and state services.

The State of Mysore strived to make special provision for the advancement of the socially and educationally backward classes of citizens under Article 15 (4) of the Constitution since 1958, and every time it faced stiff resistance from the High Court of Mysore until it reached to the apex court in Balaji case.

The Supreme Court packed with elite and upper caste judges, underplayed the role of caste and carefully crafted the economic argument to prevent social and educational arguments from taking strong roots.

Interestingly, caste as a factor for determining backwardness was marginalised by unfairly assuming that the test of castes would be inapplicable to Muslims and Christians.

It also prevented the categorization of OBCs into Backward Class and More Backward Class by holding that such a categorisation is outside the scope of Article 15(4).

The strategic interpretation of the Balaji case was legitimised over the decades by courts, jurists, journalists and textbook writers.

For instance, the Supreme Court in Devadasan (1963) and Chitralekha (1964) reiterated the economic argument of Balaji with greater emphasis. Such reasoning was utilised by the constitutional courts to delay social justice so that the ruling class was able to develop neutralising strategies.

However, relentless social movements forced the Supreme Court to concede some space in the N M Thomas case (1975), but the higher judiciary’s unbending resistance continued.

A similar thread of thought runs through Indira Sawhney v. Union of India (1993), when the nine-judge bench, while upholding the 50% reservation in favour of backward class, stated that the very idea of reservation implies the selection of a less meritorious person and cost has to be paid if the constitutional promise of social justice is to be redeemed.

The Court cautioned that there are certain services and positions such as technical posts in research and development organisations/departments/institutions, in specialities and super specialities in medicine, engineering and other such courses in Physical Sciences and Mathematics, in defence and connected services, promotions where merit alone counts.

Later in Mohan Bir Singh Chawla v. Punjab University (1997), Sadhna Devi (Dr) v. State of U. P., (1997) and Dr PritiSagar Srivastava vs. State of M.P. (1997), the Court admonished that reservation in higher levels of education would be dangerous and belittle merit and excellence.

However, surprisingly, the Supreme Court appeared to be more generous when it comes to upper caste issues. Apex court declined to grant a stay on the Centre’s decision to grant 10% reservation to economically weaker sections in the general category in jobs and educational institutions.

But it had stayed the central government’s policy to introduce 27% reservation for the OBCs in central educational institutions for one year before it upheld its constitutionality. Even in the Indira Sawhney case, the Supreme Court granted an interim stay at the time of admission.

Constitutional court’s dubious approach was also seen in the Maratha reservation policy, which came under the spotlight when the poll-bound Devendra Fadnavis-led government enacted a law to grant 16% reservation for the Maratha community.

The Bombay High Court upheld the law, in spite of the fact that the state’s reservation quota exceeded 60%. Introduction of 13-point roster and dilution of SC, ST Atrocities Act by the higher judiciary further indicates the perpetuity of such alignment.

To overcome the difficulties created by the judiciary, the Parliament has from time to time, brought amendments in the Constitution, but how to overcome this persistent judicial resistance has become a moot question.

The idea of the reflective judiciary is being projected as one of the measures to overcome this problem and manage diversity. The social construction of judicial power is a delicate and complex issue, but the government will have to conceive a scheme to not only enhance the quality of justice administered by the courts but also to restore greater faith of all sections of the society in the judiciary.

Adult victims of trafficking can't be compelled to abide by anyone or family's wishes, observes court

Article in the Indian Express dated August 7, 2019 regarding Immoral Trafficking by Sadaf Modak. Link to this article:

http://epaper.indianexpress.com/c/42237278

Article 370 not part of ‘basic structure’

Source: Hindustan Times dated 07.08.2019

• SOLI SORABJEE (Former Attorney General of India)
• 
  
• THE OPPOSITION CHARGE THAT THE LEGISLATION IS MURDER OF DEMOCRACY IS EXAGGERATED AND NOT TENABLE
• The integration of Jammu and Kashmir into the Union of India generated a lively and heated controversy in Parliament, news channels and the press. The J&K Reorganization Bill and the resolutions moved by Amit Shah have been passed in both the Houses. The result is that Jammu and Kashmir now has no special status and all laws applicable to people of India including fundamental rights guaranteed by Part III of the Constitution shall be available to people of J&K. In short, J&K is now constitutionally recognised as an integral part of India.

  Article 370, as its marginal note stated, was a “temporary

  provision with respect to the State of Jammu and Kashmir”. Thus Article 370 cannot be regarded as an essential feature of the Constitution and comprising its basic structure. Thus abrogation of Article 370 did not require a constitutional amendment and the contention that it is unconstitutional is fallacious.

  There are many pros and cons about the integration of Jammu and Kashmir. The main argument in Parliament was that Article 370 was a constitutional blunder, a historical mistake and Article 35 A entered the Constitution secretly by the back door.

  The other favourable points are that people from other states can buy land in Kashmir which they could not do before. RTI which was not applicable before cannot now be denied.There will be no separate flag for J&K, but only one flag, the Indian tricolor.

  To my mind, the greatest benefit, though is that the people of J&K can exercise the fundamental rights guaranteed by Part II of the Constitution by moving the Supreme Court directly in appropriate cases and obtain relief which may be granted to any Indian citizen.

  The opposition has condemned the legislation as murder of democracy and betrayal of the people of J&K.
  In my opinion the charge is exaggerated and not tenable. However, there is substance in the contention that there should have been wider consultation, a genuine effort to win the hearts and minds of Kashmiris and dispel their apprehensions. A law is more readily accepted after a full and frank discussion about the necessity for it and its remedial purpose.

  What has gravely disturbed me is placing PDP chief Mehbooba Mufti and National Conference vice-president Omar Abdullah under house arrest around midnight on Sunday, and later, under preventive detention on Monday when they were taken to different locations.

  Till the moment of writing it appears that while Mehbooba was taken to the Hari Niwas Guest House, Omar’s location is not known. Veteran leader Farooq Abdullah says he has been detained in his own house. The home minister’s statement that Farooq Abdullah has not been detained has been emphatically contradicted by the latter.

  Preventive detention is obnoxious and is a negation of the rule of law. In a democratic state professing the rule of law, a person can be arrested or detained if he has committed a crime or indulged in wrongdoing as judicially determined. However, preventive detention can be resorted to in clear and exceptional cases of grave and reprehensible activities which will disrupt public order.

  The decision to place a person under preventive detention must be based on cogent and credible materials and after full application of mind. Preventive detention cannot be resorted to punish dissenters and to curb dissent.

  I sincerely hope the authorities will terminate preventive detention of political leaders and not further alienate the people of Kashmir.
• A question asked is will this issue reach the courts? So long as we are not prepared to act on the Shakespearean quip: “the first thing we do is to kill all the lawyers”, these issues will flood the courts. And there will be an interesting plethora of cases. But will that restore peace in Kashmir? I am not an astrologer and will not dare to prophesie.

What has changed in Jammu and Kashmir....

Article in the Indian Express dated August 6, 2019 regarding scrapping of Article 370 by Faizan Mustafa (an expert of Constitutional law). Link to this article:

http://epaper.indianexpress.com/c/42197467
http://epaper.indianexpress.com/c/42202742

A bold move but constitutional questions remain

Source: Hindustan Times dated 06.08.2019

The government has resorted to perhaps one of the boldest steps, but from a constitutional perspective, some looming questions remain, writes Mohan Parasaran (Senior advocate, and former Solicitor General of India).

The Government of India (GoI) has resorted to perhaps one of the boldest steps — since the coming into force of the Constitution of India — with President Ram Nath Kovind promulgating the Constitution (Application to Jammu and Kashmir) Order, 2019, which states that provisions of the Indian Constitution are applicable in the state. This is what the Bharatiya Janata Party (BJP) had promised to the people, and the move is in consonance with the idea of “fraternity” envisaged in the Preamble, and has been done to strengthen the “unity and integrity of the Nation”.

But from a constitutional perspective, there are some looming questions due to the decision taken by the GoI. The state of Jammu and Kashmir is now under the President’s Rule, and there’s no elected government or a legislative assembly. Clauses (1)(d), (2) & (3) of Article 370 read as follows:

“(1)(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of subclause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he

may specify:

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.”

Even though the Constituent Assembly no longer exists, the question that may arise is whether there is a need to consult an elected body in the state on such important issues, or was the President’s decision in accordance with the other provisions of Article 370 inasmuch as he had effective consultation with the governor, who, in effect, is the government when the state is placed under President’s Rule.

Another issue is that the amendment to Article 367(4), in its application to the State of Jammu and Kashmir, is effected by way of the present Order. The issue here is whether such an amendment could be made by way of a Presidential Order. An amendment to the Constitution may only be done by recourse to Article 368 by introducing a Bill, in that regard, in the Parliament, and being passed in both the houses by a majority of 2/3rd of its members present, and voting, and thereafter, the Bill receiving the assent of the President.

As the amendment to Articles 367 and 370 are the fulcrum of the Presidential Order, questions may arise as to whether such amendments can be made in a circuitous manner without resorting to Article 368, and whether such an Order would suffice in light of the spirit behind Article 370. But the GoI’s view appears to be that no such constitutional amendment is required in light of the provisions of Article 370(1)(d).

This appears to be the moot point.

From a personal point of view, the GoI needs to be congratulated for uniting the country, as there was always a feeling that Jammu and Kashmir was truly not part of India, but part of the nation for historical purposes.

This was exploited by politicians, and led to communal forces gaining control, post-Independence, and terrorism taking a lead role.

Keeping aside the legal issues, the GoI’s intention has to be appreciated as one which is to bolster the sovereignty and integrity of the country. But the constitutional issues, from the perspective of a constitutional lawyer, are rather interesting, and will give rise to interesting debates.

Article 370: how it was made and unmade

Source: Times of India dated 06.08.2019

TIMES NEWS NETWORK

Until the Modi government moved to end it yesterday with a presidential ordinance, Jammu and Kashmir had enjoyed a special constitutional relationship with the Union of India because of the circumstances in which Maharaja Hari Singh, the ruler of Kashmir, signed the Instrument of Accession after Indian independence in 1947 ended British paramountcy over his princely state. Monday’s move has not repealed Article 370; it has effectively made it defunct. It has done away with Art 35A, which emanated from it.

1947: WHY MAHARAJA BIT THE ACCESSION BULLET

The instrument of accession was executed on October 26, 1947 by Hari Singh and accepted by Lord Mountbatten. The circumstances and timing of the signing are important. A few days before that, Pashtun “tribesmen” and Pakistani irregulars had crossed into his state and were pressing towards Srinagar. The maharaja turned to India, but India could only defend it as a formal part of its territory.

Clause 5 of the document said that the terms of the accession “shall not be varied” by any amendment to the Govt of India Act of 1935 or the Indian Independence Act 1947 unless accepted by Hari Singh in a supplementary instrument. Clause 6 disallowed the making of laws to acquire land in the state “for any purpose” but permitted Hari Singh to do so for the Dominion of India for a law applicable to the state. Clause 7 said no future Constitution of India (which was still to be written) could be imposed on the state.

In 1950, in the original Constitution of India, J&K was listed as a Part B state, along with the other princely states that had merged by Instruments of Accession, and Hyderabad and Mysore.

Party B states were then abolished and J&K was by an amendment of the Constitution put into Article 1 as India’s 15th state and irrevocably part of the “territory of India”. It continued to enjoy the special status granted to it under Article 370.

PLEBISCITE OUT, SPECIAL STATUS IN

Article 370 was incorporated in Part XXI (temporary provisions with respect to the State of Jammu and Kashmir) of the Constitution. The state’s constituent assembly had wanted only those aspects of the Indian Constitution that reflected what Hari Singh had signed away. Besides Article 1, it was the only other article of the Indian Constitution that automatically applied to J&K. The other provisions of the Indian statute could apply to the state only if its constituent assembly concurred.

Article 370 provided Jammu & Kashmir with special status, allowing it its own state constitution. The Union of India could legislate/act only in defence, foreign affairs and communications.

Since the 1950s, there have been efforts to pull the state into a deeper embrace with the Union, but Art 370 was strengthened when Sheikh Abdullah, who had become the second Prime Minister of J&K in 1948 and was later dismissed, came to an agreement — after spells of detention — with Prime Minister Indira Gandhi in 1975. In return for giving up his demand for a plebiscite, special status for J&K was allowed to continue and Sheikh Abdullah became chief minister.

However, over the years, the state was made subject to many Indian laws through various amendments in concurrence with the state assembly, the logic being that it was the natural successor to the J&K constituent assembly, which by definition was a transitional body.

35A DEFINES WHO IS A PERMANENT RESIDENT

Article 35A was made part of the Indian Constitution in 1954, through a presidential order — though its genesis goes back to early 20th century Dogra apprehensions of an influx from Punjab, which they feared would change the state’s demographic and land ownership patterns. The article, which defines who is a permanent resident of J&K and lays down laws restricting property purchase and ownership to such permanent residents, also discriminated against women, depriving them of their state subject rights if they married non-permanent residents. The J&K high court ruled against this aspect in 2002. It had been the subject of acrimonious political debate and was challenged in the Supreme Court in 2014 on the grounds that it had been added to the Constitution not through an amendment passed by Parliament but by Presidential decree. Monday’s Constitution (Application to Jammu and Kashmir) Order 2019 supersedes the 1954 order, in effect scrapping Art 35A.

SADR-I-RIYASAT OR GUV: IT’S ALL IN A WORD

Article 370 said no changes could be made to the Constitution regarding the status of J&K without the concurrence of the state’s constituent assembly. The constituent assembly, though, was dissolved in November 1956 without providing any alternative to obtaining its concurrence. Art 370, originally written as a temporary measure, was treated in several court orders as therefore having become permanent. However, a presidential declaration on November 15, 1952, under Art 370(3), had defined the “government” of J&K as meaning the Sadr-i-Riyasat of the state acting under the advice of the state’s Council of Ministers. Then, in 1965, the term “Sadr-i-Riyasat” was changed to “Governor” by the Constitution of Jammu and Kashmir (6th Amendment) Act, 1965. The change meant that a sadr-i-riyasat elected by the state assembly was replaced by a governor appointed by the President of India.

Monday’s Constitution Order 2019 was issued by the President under Article 370, Clause 1, with the concurrence of the “government of J&K”. “Government”, here, means the governor.

Lawmakers work overtime, LS session set to be most productive in 20 years

Article in the Indian Express dated August 3, 2019 regarding the Bills passed in the current session of the 17th Lok Sabha by Pradeep Kaushal and Abantika Ghosh. Link to this article:

http://epaper.indianexpress.com/c/42103486

Some important Bills passed in the current session of LS are:

• The Muslim Women (Protection if Rights of Marriage) Bill, 2019
• The Jammu and Kashmir Reservation (Amendment) Bill, 2019
• The Aadhar and Other Laws (Amendment) Bill, 2019
• The Indian Medical Council Bill, 2019
• The Unlawful Activities (Prevention) Amendment Bill, 2019
• The Right to Information (Amendment) Bill, 2019

Law to brand individuals terrorists gets RS approval

Source: DNA dated 03.08.2019

by Manan Kumar

New Delhi: The Rajya Sabha passed the Unlawful Activities (Prevention) Amendment Bill, which empowers the government to designate individuals as terrorists, on Friday as the Opposition lost yet another battle in Parliament. Until now, the government could only designate organisations as terrorists.

Although cleared by the Lok Sabha, the Bill was on the target of the Opposition for its “draconian” provisions in the Rajya Sabha and a few days ago they had decided to resist its passage with their united strength.

While an amendment to send the Bill to a standing committee was defeated by 104 members voting against it and 85 in favour, the Opposition lost the final battle miserably with 147 members voting in favour and 42 against it.

Earlier, defending the Bill, Union home minister Amit Shah said, the law has been brought to overcome such difficulties being faced by the NIA in the investigation and prosecution of terrorism-related cases due to certain legal infirmities and also to align the domestic law with the international obligations as mandated in several Conventions and Security Council Resolutions on the issue.”

Senior Congress leader and former home minister P Chidambaram cautioned the government not to “amass unbridled power to infringe on an individual’s liberty”. He said it is better if the government hears them out and sends the Bill to a standing committee instead of “forcing us to go to a building a kilometre away (the SC)”.  

He said it is wrong to compare a terrorist like Hafiz Saeed with activist Gautam Navlakha, an accused in the Elgar Parishad-Bhima Koregaon case. Calling it a dangerous piece of legislation, CPM’s Elamaram Kareem said, “This will lead to large scale harassment.” Citing previous cases under POTA and TADA, he added, “You don’t want the Opposition to speak against you. You call us terrorists and anti-nationalists to stop us from opposing you.”

The amendments have brought UAPA close to the USA’ Patriot Act that was enacted in the aftermath of the 9/11 attacks in 2001.

Opinion - RVS Mani, former senior official, MHA

It won’t harm innocents.UAPA is a sound law and was long overdue. It is the vested interests that are raising a hue and cry. There is a UAPA tribunal. There are high courts and the Supreme Court. An individual who is not a terrorist need not have any fears. Linking individuals to terrorism is important because they receive funds from NGOs and some human rights organisations. It is important to remember that no innocent man on the road can be branded a terrorist.

Accused can be ordered to give voice sample: SC

Source: Times of India dated 03.08.2019

New Delhi: In a landmark ruling filling more than a century old vacuum in the CrPC, the apex court on Friday ruled that a person can be compelled to give voice sample for crime investigation and it will not violate his fundamental right against self-incrimination guaranteed under Article 20 of the Constitution, reports Dhananjay Mahapatra.

A bench of CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna used the SC’s discretionary power conferred under Article 142 for the purpose of “doing complete justice” to empower magistrates to direct an accused to provide his voice sample, given the uniqueness of an individual’s voice.

Technology has widened scope of med exam of accused: CJI

An SC bench of Justices Aftab Alam and Ranjana Desai had on December 7, 2012, returned a split verdict on whether a magistrate, without specific provisions under the Criminal Procedure Code, 1882, which was overhauled in 1973, could be empowered by the SC to direct an accused to provide her/his voice sample to police. Nearly seven years later, the bench headed by CJI Gogoi said, “We unhesitatingly take the view that until explicit provisions are engrafted in the CrPC by Parliament, a judicial magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.”

Writing the unanimous judgment for the three-judge bench, the CJI said, “Such power has to be conferred on a magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in the Supreme Court under Article142 of the Constitution.”

The case related to an FIR lodged on December 7, 2009, by the electronics cell of Sadar Bazar police station in Saharanpur of UP alleging that one Dhoom Singh, with his aide Ritesh Sinha, was collecting money from people on the promise of jobs in the police department. The police seized Singh’s mobile phone.

The investigating officer wanted to verify whether conversations recorded in the mobile phone were between Singh and Sinha. For this purpose, the IO moved the chief judicial magistrate (CJM) to get Sinha’s voice samples. The CJM ordered Sinha to give his voice sample. The Allahabad HC upheld the CJM’s order. But on Sinha’s appeal, the SC in December 2012 returned a split verdict because of the absence of any provision in the CrPC empowering a magistrate to order a person to provide his voice sample.

CJI Gogoi said medical examination of an accused was getting wider meaning with the advancement of technology, and cited amendments carried out in the CrPC which allowed medical examination of the accused and the mandate to a person to provide handwriting specimen for investigation of a crime.

Delhi's District Courts best equipped in country.

Source: times of India dated 03.08.2019

Delhi's District Courts best equipped in country.

LLPs may be regulated on lines of Companies Act

Source: DNA dated 02.08.2019

Brajesh Kumar
Act to be amended to cap number of partners, authorise RoC to inspect partnerships

Mumbai: After a crackdown on shell companies, the government’s new focus will be Limited Liability Partnerships, or LLPs.

Sources aware of the development, said, “The government is amending Section 67 of LLPs Act 2008.”

Under the amendment, the government can impose sections of Companies Act 2013 on LLPs in the public interest. Many provisions like capping the number of partners, authorising Registrar of Companies for inspection and implementation of Accounting Standards will be applied to LLPs also.

The major amendment will be capping the number of partnerships in an LLP, where there is no cap currently. Under Section 165 of Companies Act, the maximum number of directorships a person can hold at a time is 20.

The other Companies Act provision that will be mandatory for compliance is giving more power to RoCs to inquire and inspect LLPs. Currently, RoCs have the power to inspect companies, but not LLPs. By increasing the rights of RoCs, the government will be able to take action against entities which are taking the shield of LLPs Act and hiding their business activities.

One more significant provision will be opening the way for the revival of LLPs.

Unlike companies, LLPs cannot be revived currently, so if someone does nefarious activities and closes the LLP, the government had no right to revive it and go behind it. After the amendment is notified, such LLPs can be revived.

The fourth major amendment is the application of Accounting Standards on LLPs. Currently, it is applicable mainly to companies. With the application of Accounting Standards, the books of LLPs will become more transparent and will be standardised. The government will be able to go through the books and track inflow and outflow of funds.

Compared to companies, LLPs have easier compliance rules. It is suspected that thousands of doubtful companies converted themselves into LLPs for the same reason and can also mask themselves. The original idea of LLP format was to help proprietorship firms become part of the organised sector.A senior corporate lawyer said, “Given the tax terrorism, which has threatened the business community, anything that gives more power of investigation may not go well with India Inc. The government’s intention may be right, but the timing is certainly wrong.”

A step for gender justice

Article in the Indian Express dated August 2, 2019 regarding Triple Talaq by Bhupender Yadav. Link to this article:

http://epaper.indianexpress.com/c/42061332

Power, not justice: criminalising triple divorce

Article in the Indian Express dated August 1, 2019 regarding Triple Talaq by Faizan Mustafa (VC, NALSAR Univ. of Law, Hyderabad). Link to this article:

http://epaper.indianexpress.com/c/42025303

Taking down patriarchy

Article in the Indian Express dated August 1, 2019 regarding Triple Talaq by Shazia Ilmi. Link to this article:

http://epaper.indianexpress.com/c/42025258

A historic moment for social justice

Source: Hindustan times dated 01.08.2019

Zakia Soman (Founding member of the Bharatiya Muslim Mahila Andolan, one of the petitioners in triple talaq case)

Criminalisation is a key deterrent against triple talaq. Social reform must follow the legal change

The passing of the law against instant triple talaq is a historic moment. Reform in Muslim personal law has been mired in politics and patriarchy for decades. Gender justice for Muslim women in marriage and family has been of no interest to anyone. But this unfortunate reality began to change in the last 10 to 12 years, with Muslim women raising their voice, and demanding fair play in family matters.

Unlike in 1985, when the lone voice of Shah Bano was crushed by all — government, politicians, clergymen — several Muslim women have publicly demanded an end to instant triple talaq to bring fairness in divorce practices. They have approached the Supreme Court, made appeals to Parliament, and put pressure on the government and the Opposition. All of this, eventually, culminated into public discourse and support for the abolition of instant triple talaq.

Much of the opposition to the Muslim Women (Protection of Rights on Marriage) Bill, 2019 has been because it was brought about by the Bharatiya Janata Party (BJP)-led government. But most of the so-called secular

political parties failed to see the currents of change within the community. Every woman affected by instant triple talaq is also somebody’s daughter, somebody’s sister, somebody’s mother, and the practice leads to pain and trauma for the whole family.

Besides, there has been a growing awareness about Quranic injunctions on gender justice. Today, Muslims are aware that instant triple talaq is not sanctioned by the Quran. The conservative All India Muslim Personal Law Board could not achieve much success in their attempts to invoke fear of “interference in shariat (Islamic law based on the teachings of Quran and traditions of the Prophet)”. Sadly, the so-called secular parties remained ambiguous, and did not openly support the agitating Muslim women.

This provided a window of opportunity to the BJP beyond their stated commitment to the Uniform Civil Code. It is pointless to go into the motivations of the ruling party, but do note that the Constitution mandates legal protection for women. It speaks volumes for the kind of secularism practised in our country that it took seven decades for a legislation over triple talaq to become reality.

One of the key objections to the new law is that it criminalises instant triple talaq, which is a civil matter. I welcome the law, while stating that the objective is not to punish the man, but to ensure justice and fair play to the victim woman. Nevertheless, a law would be meaningless without deterrence. Triple talaq has been taking place despite the SC judgment banning it. In such circumstances, what is the aggrieved woman supposed to do? She can do little else apart from quoting the judgment to the husband determined to pronounce talaq and throw her out.

However, the law enables reconciliation between the two, by making the offence bailable and compoundable. The fear mongering is unfounded as the First Information Report can be registered only by the wife or family members — all of whom would be fellow Muslims. The demonisation of the woman that she is waiting for the law to send the husband behind bars is ludicrous, and undoubtedly, patriarchal. After all, we are aware of the pathetically low conviction rates in cases dealing with, for example, bigamy, dowry, domestic violence and child sexual assault.

Those opposing the triple talaq law never engaged with the question of justice for Muslim women, but are now suddenly concerned about the harm that the law would bring. Their argument — “Who will provide for her for the three years when the husband is in jail?” — makes me laugh. For heaven’s sake, how did they learn that the husband pronouncing instant unilateral talaq follows up by providing maintenance to the wife he has just divorced? There are hundreds of documented cases of women saying that they did not receive a dime from the husband. Not just that, in several cases, the husband took away even her belongings and the items woman brought with her at the time of marriage.

The opposition to the bill smacks of political motivations, patriarchal mindsets, and utter lack of understanding about the lived realities of Muslim women. Some well-known figures too have joined the opposition – as, in their eyes, the BJP government can do no good ever. In throwing out the baby with the bath water, they are unwittingly contributing in retaining the male-dominated status quo.

It is not my case that the law will drastically and immediately change the lives of Muslim women. Legal reform is an important aspect of a much larger process of social reform. Large sections of Indian Muslim are poor, educationally and economically deprived. They are under threat from communal violence and discrimination. The triple talaq law will have to be followed by awareness, education and empowerment of both women and men. It will support the efforts of those who are engaged within the community working for social justice, empowerment and democracy.

Japan allows human-animal hybrids

Source: The Times of India dated 01.08.2019
Japan allows human-animal hybrids: Permits Experiments To Grow Human Cells In Animal Embryo, Sparks Row -- Colin Drury

BANE OR BOON? This could be the first step towards eventually growing organs that can then be transplanted into people in need. But opponents have raised concerns that scientists are playing God.

Human-animal hybrids are to be developed in embryo form in Japan after the government approved controversial stem-cell research. Human cells will be grown in rat and mouse embryos, then brought to term in a surrogate animal, as part of experiments set to be carried out at the University of Tokyo.

Supporters say the work — led by renowned geneticist Hiromitsu Nakauchi — could be a vital first step towards eventually growing organs that can then be transplanted into people in need. But opponents have raised concerns that scientists are playing God.

They worry the human cells could stray beyond the targeted organs into other areas of the animal, effectively creating a creature that is part animal, part person.

For that reason, such prolonged experimentation has been effectively banned or gone unfinanced across the world in recent years.

In Japan itself, scientists were forbidden from going beyond a 14-day growth period. But those laws were relaxed in March when the country’s education and science ministry issued new guidelines saying such creations could now be brought to term.

Now, Nakauchi’s application to experiment is the first to be approved under that new framework. “We don’t expect to create human organs immediately, but this allows us to advance our research based upon the knowhow we have gained up to this point,” he said.

He said he planned to proceed slowly, and will not attempt to bring any hybrid embryos to term for some years, rather growing the hybrid mouse embryos to 14.5 days, when the animal’s organs are mostly formed, and the hybrid rat embryos to 15.5 days.

Such caution was welcomed by bioethicists. “It is good to proceed with caution,” said Tetsuya Ishii, sciencepolicy researcher at Hokkaido University. “It will make it possible to have a dialogue with the public, which is feeling anxious.” THE INDEPENDENT