RTI 2.0: Eroding a valued right

Source: Hindustan Times dated 31.10.2019

-- Yashovardhan Azad and M Sridhar Acharyulu (Former Central Information Commissioners, 2013-2018)

The new rules curtail the autonomy and authority of information commissions. Citizens will suffer.

Fifteen years after the enactment of the Right to Information (RTI) Act, the RTI regime is set to play a fresh innings in the future. On October 25, the Union government notified new rules for fixing tenure, salaries, and service conditions of information commissioners in the central information commission and the state information commissions. In July, the Centre had passed a bill to give itself full authority for deciding tenure and salaries of information commissioners, at the Centre as well as in the states.

There is a strange anomaly in the change in the salary structure for the central and state information commissioners. Earlier, all central information commissioners were paid the same salary, which was equivalent to that of central election commissioners (CEC), and Supreme Court judges. Under the new rule, however, only the chief information commissioner will be entitled to the earlier salary, while the salaries of other information commissioners will be equated with that of secretaries in the Government of India (GoI). This means that the salary of central information commissioners will be reduced from ~2.50 lakh to ~2.25 lakh. All rules governing the GoI secretaries, pertaining to their leave and leave travel allowance, will now be applicable to the information commissioners.

But here is the strange part. While deciding to give more to the central information commissioner than other information commissioners, the new rules have removed this salary disparity in the states, hitherto existing between the state chief information commissioner and other information commissioners. Now salaries of all state information commissioners, including the state chief information commissioner, will be equated with the salary of a secretary in the GoI. Earlier, the state chief information commissioner’s salary was equated with that of the CEC.

The above steps violate the parliamentary standing committee deliberations during the formulation of the RTI Act. The committee, which comprised members of Parliament from various political parties, ruled that the salary and perks of central information commissioners should match that of CECs and SC judges to bestow upon the information commissioners status and autonomy, befitting their post.

The second indication of the erosion of status and autonomy of information commissioners is evident from the reduction of their tenure from five years to three. Since the power of revision of rules is with the Centre, extensions can be given at the government’s discretion to “acceptable commissioners”. This is a huge blow to the autonomy of the commission.

The Centre has severely curtailed the independence and autonomy of individual information commissioners within the commission by making them subordinate to the chief information commissioner, which was not envisaged in the original RTI Act of 2005. The chief was first among equals, but now, he will act like a head of a department. This will weaken not just the commission, but also individual information commissioners.

With the promulgation of the new rules and the Centre arrogating to itself the power to change them, the federal scheme of distribution of powers as per the original RTI Act has been weakened. The states, after all, had the powers to decide the salary, perks and tenure of their commissioners. The amended rules dilute the spirit of the original Act.

The RTI regime is at a crossroads today. The rules will diminish the importance of the commissions and the commissioners. They will dilute their authority to question senior bureaucrats for delay or obstruction in furnishing information by various departments. Information officers will also not take the orders of the commission seriously.

By making the central information commissioners senior to information commissioners, every successive government would like to appoint a central information commissioner of its own, from outside. This will lead to an unhealthy practice since, in a quasi-judicial set-up, the chief should be chosen on the basis of seniority.

There was a furore when a retired chief justice was appointed as governor. The trend now continues, with a former central information commissioner being appointed administrator of the newly-formed Union Territory of Ladakh within a year of his retirement. It may be pointed out that he is a lateral entrant, superseding very competent information commissioners in the commission.

A persistent complaint from civil society and other stakeholders has been the crowding of the commissions with bureaucrats. Rarely are non-officials inducted, especially at the Centre. With the change in rules, the government will feel even more comfortable having bureaucrats as information commissioners. In the states, retired senior-most bureaucrats would be best placed to join as the state chief information commissioner, in similar rank and pay. There have been vigorous protests against this trend by the civil society members, and they have threatened to move court as a last resort.

SC: Justice Mishra won’t recuse from hearing land grab case - Four Other Judges On Bench Back His Decision

Source: Times of India dated 24.10.2019

The Supreme Court on Wednesday turned down a plea seeking recusal of Justice Arun Mishra from the Constitution bench hearing a batch of petitions relating to land acquisition law, and decided to hear the case on a dayto-day basis from November 6.

The plea for recusal of Justice Mishra, who heads the bench that is hearing the matter, was made by parties, including farmer associations, who argued that the judge was also on a bench whose verdict in land acquisition case is to be examined by the Constitution bench headed by him.

Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat are other members of the bench. Backed by other four judges, Justice Mishra said, “I am not recusing from hearing this matter.” The grounds on which the recusal plea was dismissed could not be immediately known as the judgment was yet to be uploaded on SC website.

While hearing the plea, Justice Mishra had made it clear that he would not withdraw from the Constitution bench as the grounds raised by the parties to seek his recusal were not valid. Allaying their apprehensions that he may be biased while hearing the case, the judge had said, “If I feel that I may be influenced then I will be the first person to recuse...”

The Constitution bench was set up by the Chief Justice of India to examine the correctness of contradictory judgments delivered by two benches of the SC, both comprising three judges. The two contrasting verdicts, which are to be reviewed, deal with the issue of whether farmers who had refused to accept compensation for land acquired from them could be deemed to have been compensated if the government had gone ahead and deposited the money with the treasury or a court.

In the 2014 Pune Municipal Authority case involving interpretation of the new law, a three-judge bench said the state depositing compensation in its own treasury cannot be deemed as landowners having been paid. It said such farmers could be deemed to have been compensated only if the money had been deposited with the court and if they had been paid higher rate of interest.

But in February 2018, a three-judge bench comprising Justices Arun Mishra, Adarsh Goel and Mohan Shantanagoudar ruled in Indore Development Authority case that compensation was deemed to have been paid if government had deposited it in the treasury and there was no obligation to deposit it in court.

Another 3-judge bench noticed the contradictions in the two judgements and stayed all cases until the question relating to Section 24(2) of the Right to Fair Compensation And Transparency in land Acquisition, Rehabilitation and Resettlement Act, 2013 was settled.

Journalists call for action against Google

Source: Hindustan Times dated 24.10.2019

-- Agence France-Presse
Paris : Hundreds of journalists called on Wednesday for European officials to take action against Google over its refusal to pay media companies for displaying their content in defiance of a strict new EU copyright law.

France was the first country to ratify the law, which was passed this year and comes into force on Thursday to ensure publishers are compensated when their work is displayed online.

But Google said last month that articles, pictures and videos would be shown in search results only if media firms consent to let the tech giant use it for free.

If they refuse, a headline and a link to the content will appear, Google said, certainly resulting in a loss of visibility and potential ad revenue for the publisher.

Around 800 journalists as well as photographers, filmmakers and media CEOs signed an open letter published in newspapers across Europe urging governments to ensure that Google and other tech firms comply with the new EU rule.

“The law risks being stripped of all meaning before it even comes into force,” the letter said, calling Google’s move “a fresh insult to national and European sovereignty”.

“The existing situation, in which Google enjoys most of the advertising revenue generated by the news that it rakes in without any payment, is untenable and has plunged the media into a crisis that is deepening each year,” it said.

The Law isn't enough: legislation against mob lynching must be accompanied by effective policing

Article in the Indian Express dated October 24, 2019 regarding the importance of effective policing in addition to the law in order to curb lynching by M. P. Nathanael (Retired IGP, CRPF). Link to this article:

http://epaper.indianexpress.com/c/45015424

Should Aadhar link to social media accounts? the questions before SC

Article in the Indian Express dated October 23, 2019 regarding the consideration of linking Aadhar card with social media accounts  before the SC by Apurva Vishwanath. Link to this article:

http://epaper.indianexpress.com/c/44973788

HC: Intercepting calls violation of right to privacy

Source: Times of India dated 23.10.2019

-- Swati Deshpande

The Bombay high court has quashed three orders passed by the Union home ministry to intercept phone calls of a businessman who is under CBI probe in a bribery case, saying it violates the right to privacy as held by the Supreme Court, reports Swati Deshpande.

Citing another SC order that tapping could be allowed only in a public emergency or in the interest of public safety, the HC directed the destruction of the illegally intercepted conversations. The interception orders had been passed in October 2009, and December and February 2010.

The HC’s order came on a plea filed by Mumbai businessman Vinit Kumar against whom the CBI has filed a case for allegedly giving a Rs 10 lakh bribe to a bank official for credit-related favour.

It directed the destruction of the illegally intercepted conversations and, again quoting a Supreme Court order, said tapping can be allowed only in a public emergency or in the interest of public safety. A bench of Justices Ranjit More and N J Jamadar held that permitting illegal interception “would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”.

The HC order came in response to a petition by south Mumbai businessman Vinit Kumar against the interception orders in October 2009, and December and February 2010. CBI had registered a case against him for giving a bribe of Rs 10 lakh to a bank official for credit-related favour. Making it clear that it was not going into the merits of the CBI allegations, the HC said: “The intercepted recordings stand eschewed from the consideration of trial court.”

The court found that the government took a varying stand, and said it “deprecated” such stand, especially toward a fundamental right. It further observed that if SC judgments and laws against such intercepts are permitted to be flouted, it may amount to “breeding contempt for law, that too, in matters involving infraction of the fundamental right of privacy under Article 21”.

Kumar’s plea was that the ministry’s sanction contravened the provisions of the Indian Telegraph Act, 1885, and urged that the recordings be destroyed as directed by the SC in the landmark People’s Union for Civil Liberties (PUCL) versus Union of India judgment of 1997. He also relied on a 2017 9-judge constitution bench judgment in the KS Puttaswamy case that speaks about fundamental freedom.

Quoting the PUCL case, Justice More said: “The expression Public Safety... means the state or condition of freedom from danger or risk for the people at large. When either of the two conditions is not in existence, it was impermissible to resort to telephone tapping.”

The judge added that “to declare that de hors (outside the scope of) fundamental rights, in administration of criminal law to secure evidence against the citizens, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”.

Why the Supreme Court must rethink capital punishment

Source: Hindustan Times dated 19.10.2019

-- Gautam Bhatia (Advocate, Supreme Court of India)

It is the only form of punishment where human subjectivity and human error can never be atoned for

Earlier this month, a three-judge bench of the Supreme Court confirmed the death sentence upon an individual who had been convicted of the rape and murder of a two-year old girl. While the circumstances of the crime may trigger a natural reaction that the punishment was justified, a closer look at the judgment reveals that there are ongoing structural problems with the administration of capital punishment in the country, which raise questions about its continued retention on the statute books.

First, the conviction was based on circumstantial evidence. Circumstantial evidence, by its very nature, requires the drawing of inferences to connect the evidence in question to a set of facts. For example, the evidence that an individual was “last seen” with a person who was murdered is “circumstantial evidence” that that individual was, indeed, the murderer. Because of its very character, Indian courts have historically held that while circumstantial evidence can, in some cases, sustain a conviction, it should not ordinarily be the basis for imposing the death penalty. This was specifically pointed out by Justice RS Reddy, who dissented from the confirmation of the death penalty in this case.

The majority judges, however, took the view that there was no connection between the quality of the evidence (circumstantial) and the imposition of the death penalty. There, is, however, a very real connection — imposing the death penalty itself is based upon absolute certainty – because out of all the punishments, it is the death penalty alone that offers no possibility for future correction, if it turns out that the conviction was a mistake. People who have been imprisoned can be released, and potentially compensated if it turns out, years later, that the conviction was wrongful; nothing, however, can bring the dead back to life. It is for this reason that the absolute certainty involved in administering the death penalty sits ill at ease with the fact that in the real world, nothing is ever certain – and sits even more ill at ease with a conviction based on circumstantial evidence.

Second, one of the cardinal principles that has been evolved over time by the Indian courts, is that the death penalty is to be awarded taking into account not only the nature of the crime, but also, the character of the convict. Given its irreversible character, the death penalty is to be imposed only when there is no possibility of reformation. To establish this, courts have laid down a number of indicative factors, including mitigation reports that track a convict’s behaviour in jail, to judge whether or not he or she is capable of reform. The majority judgment, however, gives this short shrift, dealing only with the attitude of the convict during the course of the trial, in a single short paragraph. On the contrary, as Justice Reddy points out in his dissent, the convict’s age as well as the lack of any prior convictions or crimes all point to the fact that the possibility of reform cannot entirely be ruled out.

And finally, the very fact of a dissent in this case — where two judges believed that the death penalty ought to have been imposed, and one did not — points to the inherent subjectivity that comes with such cases. For example, the convict’s socio-economic status (he belonged to the below-poverty-line section of society) weighed with Justice Reddy, but did not weigh with the majority. In light of the fact that the administration of the death penalty has been traditionally skewed on the basis of socio-economic status, this is highly significant.

Admittedly, this problem is not unique to the imposition of the death penalty, but extends to sentencing and punishment in general. However, what is unique about the death penalty is precisely its irreversible character: Alone among all punishments, it is final and undoable. Given that, and given the kind of subjectivity that the Supreme Court’s judgment reveals, there are surely good grounds to rethink the only form of punishment where human subjectivity and human error can never be atoned for.

Supreme protection: higher judiciary must take proactive steps to stop lynching, punish perpetrators

Article in the Indian Express dated October 19, 2019 regarding Proactive steps to be taken by Higher Judiciary to stop lynching and punish perpetrators by Dushyant Dave (Senior Advocate, Supreme Cout of India). Link to this article:

http://epaper.indianexpress.com/c/44834231

Criminalisation of even consensual sex between adolescents obstructs access to safe abortion for girls

Source: Times of India dated 19.10.2019

-- Vrinda Grover (Advocate, Supreme Court of India)

Unsafe abortion is the third leading cause of maternal mortality in India, leading to about 10 deaths every day. ‘The incidence of abortion and unintended pregnancy in India, 2015’ study records that of the 15.6 million abortions in 2015, only 22% were conducted in health facilities, whereas an overwhelming 78% abortions were done outside health facilities. Adolescent girls, in the age group of 16-18 years, are left at the mercy of life-threatening pregnancy termination methods. A 2010 facility based study discloses that 20-30% of abortion seekers were unmarried young women and adolescent girls; and 16.7% of them were victims of sexual abuse.

Significantly, this life endangering vulnerability is abetted by the law. Section 19(1) of the Protection of Children from Sexual Offences (POCSO) Act stipulates mandatory reporting of all sexual offences against a child to the law enforcement authorities, and failure to report the same entails punitive consequences. This blanket legislative compulsion to inform authorities, makes no exception for adolescent girls nor for health professionals, thereby jeopardising the life and reproductive health of adolescent girls.

NFHS-4 (2015-16) data confirms that adolescents are sexually active in India. The legislative diktat of POCSO treats any sexual activity with a person under 18 years as a crime. Even consensual sex between adolescents is criminalised. This strictly penal approach rejects the evolving sexual capacities and consensual sexual interactions between adolescents. Ironically, the Juvenile Justice law recognises 16-18 year-olds as “deliberative intentional adults” to prosecute them as adults for heinous crimes.

The 1971 Medical Termination of Pregnancy Act governs the circumstances under which comprehensive abortion can be provided. To provide abortion services to a girl under 18 years, the law requires the written consent of a guardian but casts no obligation on the doctor to inform the police. POCSO, however, superimposes mandatory reporting on health professionals, placing physicians and psychiatrists in a particularly conflicted position, about how and when the doctor must inform the police.

Rule 5 of POCSO prescribes that the doctor rendering emergency medical care shall not demand any prior legal requisition; shall protect the privacy of the child and shall attend to the needs of the child including advice on pregnancy and emergency contraception. The Monitoring Guidelines state that it would suffice to give information to the police official attached to the hospital, and a medico legal certificate made to the police. The guidelines also state that providing medical care is the first duty of health professionals, while reporting is a secondary duty.

Doctors providing abortion services are confronted with a professional and ethical dilemma. The primary duty of the doctor is to provide medical treatment and the efficacy of this treatment rests on maintaining confidentiality and trust of the patient, underpinned by securing informed consent. Thus, doctors have to meet the competing demands of the law and their professional obligation to provide healthcare.

Doctors have reported that the POCSO statutory directive has a chilling effect in providing healthcare. Many doctors continue to prioritise their duty by first providing safe abortion services and also comply with the law by informing through either an MLC, or a subsequent report to the police. However, doctors also report many instances where adolescent girls seeking pregnancy termination have abruptly left upon learning that the police would be compulsorily informed. The situation is more egregious when the pregnancy is caused by sexual assault within the family and the survivor is unable and unwilling to approach the police. Irrespective of the marital status of the adolescent girl seeking abortion, the doctor is required to inform the police, as law deems them all to be a consequence of rape.

There can be no dispute with the objective of ending child sexual abuse and there is merit in imposition of mandatory reporting in institutional settings. However, in the context of access to safe abortion, universal mandatory reporting, is a blunt instrument, not in the best interest of the health or autonomy of adolescent girls.

Let’s pause and consider the state of the criminal justice system that this mandatory reporting will trigger. The Supreme Court on July 12, 2019, registered a suo motu writ petition titled, ‘In Re: Alarming rise in the number of reported child rape incidents’. Responding to the inordinate delay in the investigation and conclusion of POCSO trials, the court issued directions. Is it surprising then that the criminal justice system does not inspire confidence in the victims of POCSO offences?

The criminalisation of all sexual activity between adolescents under POCSO, coupled with mandatory reporting directive, operates as a barrier for adolescent girls accessing safe abortion services. Respecting “the best interests of the child” mandate, POCSO should prioritise enabling adolescent girls to access safe abortions and not fetter health professionals with mandatory reporting.

Reform, not compliance (Torture by Police in India)

Article in the Indian Express dated October 18, 2019 regarding the Torture by Ploice in India - Law versus better training and infrastructure by Yashovardhan Azad (Former IPS Officer and Central Information Commissioner). Link to this article:

http://epaper.indianexpress.com/c/44801114

The judiciary needs to introspect

Source: Hindustan Times dated 18.10.2019

-- Prashant Jha
The SC is held in the highest regard and must live up to its legacy by making necessary corrections

It is an irony of Indian democracy that citizens have more faith often in unelected institutions than elected representatives. Surveys have shown that faith in the armed forces and institutions such as the Election Commission often surpasses the faith citizens have in the legislature or the executive. But if there is one institution that has a special place, in both constitutional design as well as popular sentiment, it is the judiciary.

Our founders carefully constructed a system of checks and balances, and separation of powers. Aware of the dangers of populism, and of the temptation of the political leadership to bypass the law, India’s constitution designed a judiciary meant to be truly independent. The institution, to its credit, has lived up to this faith. Even at the most difficult of times, such as the Emergency, during which the role of the Supreme Court (SC) has been legitimately questioned as having aided the subversion of fundamental rights, it is instructive to remember that at least some within the institution sought to uphold the law.

That is why recent events must cause concern to all those who care about the health of Indian democracy and institutional integrity. Four features of the judiciary, particularly the SC’s, recent actions merit attention.

The first is what the legal scholar Gautam Bhatia has termed as “constitutional evasion”. One of the starkest examples of this is the court’s treatment of petitions related to the Centre’s moves on Jammu and Kashmir. At stake here are two issues — the constitutionality of the government’s push in August, endorsed by Parliament, to nullify Article 370, bifurcate the state and make it a Union Territory (UT); and the restrictions and detentions which have affected fundamental rights.

Irrespective of one’s views on the desirability of the government’s decision on the constitutional changes, once the issue reached the court, it was incumbent on the SC to take it up urgently. This is because the issue is time-sensitive. The administrative implications are playing out; the formalisation of the UT status will happen soon. The decision to first put off the issue till October, and then postpone it till November, will almost present the court with a fait accompli. The citizens of the Valley — who enjoy equal rights as citizens elsewhere — have also had to live with (now partially lifted) restrictions. This too is in abeyance in court, though it did ask the government on Wednesday to present reasons for such moves.

Another example of this evasion was during the controversy regarding the Central Bureau of Investigation (CBI) at the end of last year. Once again, one can have distinct views on whether the government’s decision to end the then director Alok Verma’s term before his stipulated term was correct or not. But once he approached the court, the SC sat on the issue till his tenure was about to end, and he would retire. The issue became almost infructuous.

It may be instructive here to look at the example of the United Kingdom Supreme Court, which declared PM Boris Johnson’s decision to prorogue Parliament as null and void. Lady Brenda Hale, the president of the court, categorically said that the decision to prorogue was “unlawful” because it undermined the Parliament’s role. The hearings continued for three days; the order was delivered in a week; and the legislature was back to doing what it was meant to do.

The second issue is the expansion of the sealed envelope jurisdiction. India’s judicial system is adversarial. One side presents its evidence and arguments, and the other side, which has access to this evidence, then counters it and vice versa. It is then, based on the legal merits of the evidence and arguments offered, that the court takes a considered call. To be sure, the use of sealed envelopes is justified — especially for sensitive information which should not be a part of open record. But over the past few years, in multiple cases, from Rafale to the latest instance of the arrest of P Chidambaram, courts at different levels have accepted evidence in a sealed envelope — with the other side not quite knowing what is being presented. In such cases, even if the court is taking the best decision, it leaves room for doubt.

Unfortunately, this has also coincided with courts, including the apex one, moving away from the usual practice of bail being the norm, and not an exception. Together, sealed envelopes and the emerging notion on bail have only served to threaten and erode the rights of individuals.

The third issue is the collegium. There is substantial literature to suggest that the collegium system in itself has not worked adequately. The SC itself acknowledged this even as it scrapped a suggested alternative, the National Judicial Appointments Commission. The bedrock of judicial independence is appointments without interference from other branches. Even if this system needs reform, it cannot be anyone’s case that the executive wields disproportionate influence. This is so for a simple reason. The judiciary is often sitting in judgement on executive actions; the state is a party to many cases; and both independence and the appearance of independence is crucial. As the retired SC judge Madan Lokur argued persuasively in The Indian Express on Wednesday, the executive’s influence over appointments and postings appears to have increased.

Finally, at the lower levels, the judiciary is succumbing to populism — as seen in the a Muzaffarpur magistrate’s order which enabled an FIR against 49 individuals for merely writing a critical letter to the prime minister. The police has now decided to file a closure report in the face of widespread criticism. But instances of the lower judiciary pursuing what can only be, at best, termed frivolous cases, and at worst, seen as cases which undermine the very fabric of Indian democratic rights, are rampant.

Travel across the country, and it is clear that the SC is held in the highest regard. It is time for the judiciary to make the necessary corrections — attend to urgent cases on an urgent basis; drop the practice of sealed envelopes except in the rarest cases; be independent and be seen as independent in appointments; and set a strong benchmark on issues related to rights in particular. The institution must live up to its legacy.

Now, Bench will write its ruling

Article in the Indian Express dated October 17, 2019 regarding the summary of the key arguments and SC's observations in the SC case about Ram Janmabhoomi - Babri Masjid dispute by G. Ananthakrishnan. Link to this article:

http://epaper.indianexpress.com/c/44760456

Won’t recuse, we are under attack: Justice Mishra

Source: Hindustan Times dated 17.10.2019

Land Acquisition case An SC bench is expected to deliver verdict in the matter of recusal of Justice Mishra on October 23

New Delhi : Justice Arun Mishra, a senior judge of the Supreme Court, deprecated the “emerging trend” on social media of pressurising the judiciary and judges to give up cases and said such a practice amounted to deliberate interference with the judicial system.

Justice Mishra is heading a five-judge bench formed to end the stalemate over interpretation of section 24 of the Land Acquisition Act that involves fair compensation to landowners whose property is acquired by the state for public purposes and return of the land in case it is not utilized for the acquired purpose.

The larger bench has been set up in the wake of contradictory judgements on the law point.

Farmland owners have opposed justice Mishra heading the bench because he had authored one of the two judgements that has been referred to the constitution bench to determine its correctness. Arguments on justice Mishra’s presence on the bench commenced on Tuesday and continued all of Wednesday. The bench is expected to deliver its verdict in the matter of recusal on October 23.

During the hearing, justice Mishra almost choked and said he was pained to hear such arguments and the systematic pattern adopted to embarrass the judiciary and judges. He said that left to him he would have recused himself from the matter.

“My determination has been strengthened by these circumstances. It would be embarrassing for me to hear comments on my own argument.But I would not succumb to a lobby which under a certain guise is pressurizing the Chief Justice,” the judge said.

Solicitor general Tushar Mehta, appearing for Haryana, opposed the recusal plea. He said the trend of hearing-eve articles will jeopardise the functioning of judiciary. He asked the judge not to recuse himself under any circumstances. The reference is to articles in social media on farmer groups opposing the presence of justice Mishra on the bench dealing with the land acquisition matter. “If a judge recuses under pressure then he defies the oath taken during his appointment,” Mehta told the bench.

Justice Mishra said such articles “were sponsored.”

“I say it loud and open. They are sponsored articles,” he told the solicitor general and other advocates present in the court.

The judge told Mehta that he should have pity on him. “Circumstances and the background created has forced me to hear the case,” he said.

“To succumb to (the plea for recusal) would be nothing short of bench-shopping! It will destroy the independence of the judiciary. You are asking for a bench of your preference, your liking? One that is of your formulation? That you think would favour you? You want to tame the judiciary? This is a grave issue!”, the judge told senior advocate Shyam Divan, who on behalf of the landowners said there was no intent of bench-hunting.

“We are worried about an apprehension of bias,” he clarified, explaining “Your presence is likely to restrain the advocates and the litigants alike in presenting our case. This would be like crossing the rubicon.”

A need to democratise science

Article in the Indian Express dated October 16, 2019 regarding Research in elite institutions by Milind Sohoni (Centre for Technology Alternatives for Rural Areas, IIT Bombay). Link to this article:

http://epaper.indianexpress.com/c/44714931

‘State legislatures can’t let people appeal directly to SC’

Source: Times of India dated 16.10.2019

-- Dhananjay Mahapatra

New Delhi: The Supreme Court on Tuesday ruled that a state legislature could not enact a law permitting an aggrieved litigant to appeal directly to the apex court, bypassing the state high court.

Striking down Section 13 (2) of the Chhattisgarh Rent Control Act, 2011, providing appeal directly to the SC, a bench of Justices Deepak Gupta and Surya Kant said, “The state cannot enact a legislation providing an appeal directly to the SC. That would amount to intruding upon the jurisdiction of the Union, which the state legislature does not have.”

Writing the judgment for the bench, Justice Gupta said, “We are constrained to observe that the men who drafted the Act did not even consider the hierarchy of courts. As pointed above, the Rent Control Tribunal is headed by a retired judge of the high court or a district judge. What is the rationale of making such an order (of tribunal) appealable directly to the Supreme Court? We see no reason why the supervisory jurisdiction of the high court should be excluded.

“We, therefore, have no doubt in our mind that Section 13(2) of the Act, in so far as it provides an appeal directly to the SC, is totally illegal, ultra vires the Constitution and beyond the scope of the powers of the state legislature. Section 13(2) of the Act is accordingly struck down.”

The SC said Entry 77 of the Union List gave power to the Union in respect of jurisdiction and power of the SC, a power which could not be exercised by the state legislature. It also said a bare reading of Entry 65 clearly indicated that state legislature had no power to enact any legislation relating to jurisdiction and power of the SC.

Section 13 of the Chhattisgarh Act had provided that appeal against the order of a rent controller would be filed before the Rent Control Tribunal. But Section 13(2), which has been declared unconstitutional and struck down by the SC, provided that an appeal against the tribunal’s order would, as a matter of right, go before the SC.

Once decoded, there are flaws in Rajasthan’s proposed anti-lynching law

Source: Hindustan Times dated 15.10.2019 

-- Abhinav Shekhri (Advocate practising in Delhi)
The new law has various problems. It would be better to simply strengthen the existing processes.

In April 2017, images and videos of a group of people attacking a middle-aged Pehlu Khan in Alwar, Rajasthan, sent shock waves through India. A year later, in August 2019, a trial court found none of the persons accused for Khan’s death were guilty, since the prosecution could not establish the case beyond reasonable doubt. In the commentary following the verdict, there hasn’t been enough discussion about the anti-lynching law that Rajasthan (and other states) passed, which are pending approval by the Centre.

On the face of it, the Rajasthan law has immaculate pedigree. It was birthed by a civil society movement, and buttressed by the Supreme Court orders that called for measures to address mob lynching. Unfortunately, this pedigree leads many to ignore the resistance that the idea of an anti-lynching law had met with earlier, which we must consider. There are, broadly, three aspects to this proposed law: (i) Creating a new offence of “lynching” with stiff punishments; (ii) creating new rights and duties for police, and; (iii) giving victims a solid footing in the process to ensure that they get justice. A closer look reveals that the new law suffers from various problems on these aspects, nullifying the potential gains of legislation.

Most of criminal law theory is about creating labels and the message that such labels send out regarding an individual’s conduct in society. For instance, think of sexual assault and rape. Logically, sexual assault includes rape, but historically societies have reserved that label to single out and identify a particular kind of sexual assault, one that is considered particularly harmful. The same applies here. While there are existing crimes that could cover group violence, they do not convey the severity associated with cases such as Khan’s, requiring a new label altogether. There is great merit in this theory, but for it to work, it must transmit the label effectively, and this is where the anti-lynching law fails us. We are told that a mob is a group of two or more persons, but when has there been a two-person mob? The reason for this threshold, I believe, is because the Indian Penal Code already created group-based crimes when five or more people act together. In this bid to create a new crime to respond to political pressure, the law not only ends up failing to create an effective label, but also creates confusion in the overall administration of the law.

An examination of the law on the second aspect, where new rights and duties are recognised for the police, further highlights how the new legislation is a bad fit within the existing criminal justice architecture. The police already have wide-ranging powers to prevent crime, including conducting preventive arrests, as well as passing orders under Section 144 of the Criminal Procedure Code, 1973, for prohibiting the assembly of groups. The anti-lynching law, largely, gives these powers a fresh coat of paint, while also expanding them in certain aspects. But, as Khan’s case confirms, these powers are only useful if the police actually use them to secure justice. The trial court verdict held, in no uncertain terms, that the police investigation contributed greatly to the acquittals, by causing exclusion of key evidence. Rather than addressing the fact that police officers are unable to discharge their duties either due to a lack of adequate manpower, training, or sheer unwillingness, the anti-lynching law suggests that the answer lies in giving the police more powers. I fail to see the logic.

Besides allowing for grants of compensation, the Rajasthan Act seeks to also empower victims by allowing them to argue at different stages of the case, and broadening existing legal aid by allowing victims to be represented by lawyers of their choice from a panel at the state’s expense. These are bold moves. But, again, they suffer from the vice of being driven by an insular approach, rather than one which locates a solution that is harmonious with the existing set-up. In regular criminal law, the prosecution and defence both have rights and duties. For instance, the prosecution must disclose its case prior to a trial by giving copies of material collected during the investigation free of cost. Will the victim also be permitted to file material, and if so, will there be a duty to furnish free copies? Furthermore, expanding victims’ rights in a piecemeal manner only compounds such questions in the context of the criminal justice system as a whole. Why not work towards a comprehensive victims’ rights legislation instead?

There is no doubt that the anti-lynching legislation is intended to be a law for the good. However, this consequentialist focus must not blind us to the fact that a law intended for the good can end up being bad law. Rather than promise more justice on paper by passing new anti-lynching laws with problematic legal implications, a better chance at securing justice perhaps lies in strengthening the operation of the existing processes of the law.

MU not using UGC plagiarism checker despite reminders

Source: Hindustan Times dated 15.10.2019

-- Priyanka Sahoo

Mumbai : Two months after the University Grants Commission (UGC) made a plagiarism-detection software available to all higher education institutes in the country, the University of Mumbai (MU) is yet to use it despite a series of reminders.

UGC is the apex body that governs all higher educational institutes in the country.

In May, the UGC had issued an exclusive notice to the university for not implementing any anti-plagiarism framework to screen PhD theses submitted by students. Soon after, in August, the UGC made the anti-plagiarism software ‘URKUND’ available on a trial basis to all universities. The trial started on September 1. However, MU is yet to start using the software, said sources in the university.

According to official figures, the university receives around 350 thesis and research papers every year from scholars in its departments, research centres and affiliated colleges. On an average, the university hands out 330 PhDs annually.

However, none of the theses go through a plagiarism check, said a senior professor from the university, on the condition of anonymity. The university had converted its library and thesis department into a cell for anti-plagiarism methods. “The university doesn’t have a digital repository of information on scholars as well as their works. This makes it difficult for the university to screen all PhD theses,” said the professor. Earlier the varsity had planned to purchase licences for Turnitin software, but the plan did not take off. Now that the URKUND software is available for free, utilisation of the software has not started.

University pro vice-chancellor Ravindra Kulkarni was unavailable for a comment. An official from the thesis department said not all theses are being screened, but work has already started.

“We are just starting to use the URKUND software. At the moment, the licence is shared if any faculty member asks for it,” he said, without divulging details on how many faculty members have accessed the licence so far. However, no official communication has come from the university about the use of the software, said professors.

“We have recently purchased the rights for Turnitin software. We are demonstrating it to faculty members. From now on, all theses will go through Turnitin,” said pro vice-chancellor Ravindra Kulkarni.

It is important to note that last year, a city college lecturer had made a complaint of plagiarism against senior Economics professor Neeraj Hatekar. In the absence of an Institutional Academic Integrity Panel (IAIP), the university has formed a new committee to look into the matter.

In yet another violation of the UGC guidelines, not all theses are uploaded on the central repository of Shodhganga. As on date, there are only 214 theses under MU that are uploaded on Shodhganga. “We have started uploading theses on Shodhganga. It will take some time but we will soon upload all the research work,” said an official from the thesis department.

In comparison, other reputed state universities such as Madras University, Anna University, Savitribai Phule Pune University, Benaras Hindu University and Allahabad University, have been using the URKUND or other anti-plagiarism softwares for at least two years now. Most of these universities have special systems allowing one to check any documents for plagiarism.

This is in accordance with the UGC regulations issued in July 2018 on the Promotion of Academic Integrity and Prevention of Plagiarism in Higher Educational Institutions. The UGC asked the universities to set up IAIP to promote academic integrity and to develop systems to detect plagiarism.

According to the apex body, any similarity of over 10 per cent in two documents is considered plagiarism or duplication. The regulatory body also laid down penalties for plagiarism — no penalty for similarities up to 10 per cent; revision of script within six months for similarities above 10 per cent to 40 per cent; debarred from submitting a revised script for a period of one year for similarities above 40 per cent to 60 per cent; cancellation of registration for similarities above 60 per cent.

HC says Mumbai court can try US domestic violence complaint

Source: Times of India dated 14.10.2019

-- Rosy Sequeira
If an incident of domestic violence has occurred in the US, a magistrate in Mumbai has jurisdiction to try the complaint, and it is not time-bound, the Bombay high court held recently while dismissing a plea filed by a US-based IT professional.

Justice Sambhaji Shinde’s verdict came on a petition by a 40-year-old man after the Mulund metropolitan magistrate ordered him to pay interim maintenance to his wife and minor son and the sessions court dismissed his appeal.

The couple got married in Lucknow in 2008 as per Muslim rites and left for the US. Their son was born in 2013. Due to differences, the woman moved in with her brother in 2014. The husband filed for divorce in the California superior court and sought custody of the child. In 2015, the woman returned to India. The husband subsequently divorced her in India. In 2016, the US court granted custody to the father and issued an arrest warrant for the mother.

The woman filed a case under the Domestic Violence Act, 2005. In 2017, the Mulund magistrate directed interim maintenance of Rs 30,000 to the wife and Rs 15,000 to the son. The sessions court upheld the order.

In HC, the husband’s advocate Prashant Pandey argued there was over two years’ delay by the wife in filing the complaint and, on this ground alone, it ought to have been dismissed. He further contended the magistrate had no jurisdiction to entertain the complaint since the alleged domestic violence had not been committed in India.

The wife’s advocate countered she had filed the case here as she lived in Mumbai with her brother.

Justice Shinde noted a precedent in a Supreme Court verdict where the apex court had held that the place where the wife takes shelter after leaving or being driven away from the matrimonial home on account of cruelty by husband or relatives would also have jurisdiction to entertain complaints under section 498 A (cruelty) IPC.

In his September 25 judgment, justice Shinde said in view of the SC’s verdict and also observations by both the lower courts, “there is no substance in the contention” regarding jurisdiction. He also cited another SC verdict to rule out the contention over inordinate delay in filing a complaint.

Can government intercept WhatsApp?

Article in the Indian Express dated October 10, 2019 regarding the possibility of lawful interception of messages on Social networking platforms by Pranav Mukul. Link to this article:

http://epaper.indianexpress.com/c/44509002

A case for deletion: The Boilers Act needs to be done away with. Seventh schedule of the Constitution needs a relook

Article in the Indian Express dated October 10, 2019 regarding the Boilers Act and Seventh Schedule of the Indian Constitution by Bibek Debroy (Chairman, Economic Advisory Council to the PM). Link to this article:

http://epaper.indianexpress.com/c/44509557

Girl entitled to maintenance in child marriage case: Court

Source: Times of India dated 10.10.2019

--Swati Deshpande
The Mumbai family court recently held that a child married off when she was less than 15 years old and who sought to declare her marriage a nullity after she turned 18 was entitled to interim maintenance.

The family court said merely because she wants her marriage declared null and void, her claim of interim maintenance cannot be discarded. As she has no independent source of income, she is entitled to interim maintenance.

Her lawyer Anagha Nimbkar invoked the Prohibition of Child Marriage Act which stipulates that child marriage is voidable at the option of the party who is a minor at the time of marriage. Such a petition to declare the marriage void and a nullity needs to be filed within two years of the child turning a major.

Married when she was 14 years and 10 months old, the girl, on turning 18, filed a plea to get the marriage declared void as there was “no free consent”. She also sought a monthly maintenance as she said she wanted to resume studies which she had to forgo in the seventh standard since she was married “forcefully.’’ She had approached the court in 2017 when she turned a major. He husband was 35 years old then. She complained of harassment after marriage. In January 2014, she had left her matrimonial home and returned to her parents’ house.

Her case was also that she was doing a temporary job which she lost and was finding it difficult to support herself and sought Rs 20,000 as interim support per month.

The husband did not file any reply and the family court proceeded against him without his say, though he was given an opportunity to file one.

Going by the petition that the husband was able bodied and earning, his non-disclosure of income or source did not come in the way of the court’s order to grant her Rs 8,000 interim maintenance per month till her main petition was decided.

Unworkable marriage ground for divorce: SC

Source: Times of India dated 10.10.2019

-- Amit Anand Choudhary, New Delhi
Though ‘irretrievable breakdown of marriage’ is not a ground for divorce under the Hindu Marriage Act and Special Marriages Act, the Supreme Court has, in a significant ruling, said divorce can be granted if a marriage is totally unworkable, emotionally dead and beyond salvage.

Coming to the rescue of a man fighting a legal battle for divorce for the last two decades, a bench of Justices S K Kaul and M R Shah invoked the SC’s inherent powers under Article 142 to do “complete justice” and allowed his plea saying the marriage had broken irretrievably. The man’s plea had been earlier rejected by a lower court and the Andhra Pradesh high court after his wife refused consent for separation. The couple had been living separately for the last 22 years after their relationship ran into rough weather just a few years into their marriage in 1993.

SC rejects woman’s plea that her consent must for divorce

The apex court, in a series of verdicts, has asked the Centre to amend the law to introduce irretrievable breakdown as one the grounds for divorce, but the law remains unamended and divorce is denied even if a couple has not lived together for years and their relationship bruised beyond repair. This effectively denies them an opportunity to explore life afresh as their marriage survives in law even if not in substance.

Even the Law Commission, in its reports in 1978 and 2009, had recommended that the Centre take “immediate action” to amend the laws with regard to “irretrievable breakdown” where a “wedlock has become a deadlock”. As the Centre failed to act on the suggestions, the apex court has from time to time invoked Article 142 to grant divorce even though the existing laws do not recognise the ground for divorce.

“This court, in a series of judgments, has exercised its inherent powers under Article 142 of the Constitution for dissolution of a marriage where the court finds that the marriage is totally unworkable, emotionally dead, beyond salvage and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce can be granted,” the court said.

It added, “In the present case, admittedly, the husband and wife have been living separately for more than 22 years and it will not be possible for the parties to live together. Therefore, we are of the opinion that while protecting the interest of the respondent wife to compensate her by way of lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 to dissolve the marriage between both the parties.”

The bench rejected the wife’s plea that the marriage cannot be dissolved without her consent, and granted relief to the husband after noting that all efforts to continue the marriage had failed and there was no possibility of a reunion because of the strained relations between the parties.

“If both the parties to the marriage agree for separation permanently and/or consent for divorce, in that case, certainly both the parties can move the competent court for a decree of divorce by mutual consent. Only in a case where one of the parties does not agree...only then the powers under Article 142 of the Constitution are required to be invoked to do the substantial justice between the parties, considering the facts and circumstances of the case,” the bench said.

Times View: Forcing people to continue in unhappy marriages does nobody any good. Far from strengthening the institutions of marriage and family, the constant misery and strife it entails undermines them like little else can. There is good reason, therefore, for the law to make it as easy and painless as possible for people unhappy in a marriage to end it.

SC/ST judgment, in review

Article in the Indian Express dated October 02, 2019 regarding Review of SC judgment on SC/ST Act by Faizan Mustafa (Expert in Constitutional Law). Link to this article:

http://epaper.indianexpress.com/c/44262749