India Legal 14 January 2019

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4 January 14, 2019
T is impossible to decipher, as the agitation
over expansion of rights of women to wor-
ship in the Sabarimala temple in Kerala
intensifies, where the political chips will fall.
Will the Hindu fundamentalists, who are
opposing the Supreme Court ruling, and conse-
quent entry of three women score points as pro-
tectors of a centuries-old tradition—an “essential
practice”—and polarise the Hindu voters? Or will
the secularists and the burgeoning women’s rights
movement, now imbued with religious fervour,
win the day?
What is the actual case law that preceded the
Supreme Court’s recent decision lifting the ban
on women in a certain age bracket worshipping
inside this temple? Courts do protect the right to
worship as a civil right and the freedom to do so
according to one’s own belief. But should this
right of worship be allowed to interfere with the
rights of other persons?
While researching this subject in relation to
the ongoing Sabarimala agitation, I chanced upon
an illuminating paper by social anthropologist
Gilles Tarabout published by the South Asia
Multi-disciplinary Journal. I will excerpt cases
from Indian jurisprudence, cited by Tarabout
(taken directly from his paper), regarding striking
a balance between the right to worship and ways
of worshipping. They have a direct bearing on the
Sabarimala controversy:
The Punjab and Haryana High Court in Rattan
Singh and ors. (1951) had to deal with a conflict
between bareheaded devotees and covered-head-
ed ones in a mandir which Lahore High Court
had previously (1936) declared not to be a Sikh
Gurdwara. Bareheaded devotees complained they
were prevented by the covered-headed ones from
entering the mandir and worshipping there. The
High Court, quoting precedents, underlined the
general principle according to which the right to
worship a deity according to one’s own belief is of
a civil nature. The judge decided in favor of the
plaintiffs because, according to him, coming bare-
headed could not be seen as affecting others’ right
to worship: “whether a man goes bare-headed or
otherwise is not a form of ritual and even if he
goes into the temple and begins to worship with-
out anything on his head it may be good or bad
manners according to the notions of the people
but this has no reference to the ritual” (Rattan
Singh and ors. 1951:§5).
This power of the courts does not concern
Hinduism alone—which reinforces the idea that
this form of legal action in religious matters is
beyond any particularities regarding policies or
persons. For instance, Allahabad High Court
ruled in Syed Farzand Ali (1980) that Muslims of
the Ahl-i-Hadith tradition had the right to speak
the word “Amen” aloud in response to the prayer
leader in mosques of the Mathura district without
being hindered by Muslims of the Hanafi tradi-
tion who tried to oppose this practice. This was a
long-standing conflict and judgments to decide
the same question already existed by the end of
the nineteenth century (Queen Empress 1885;
Ataullah 1890). These earlier rulings were con-
firmed by the Allahabad High Court, with partic-
ular reference to Justice Mahmood in Ataullah:
“As to the question of pronouncing the word
‘Aameen’ I hold that the word ‘Aameen’ must be
said at the end of the prayer ending with Sure-i-
Fateha. I hold also that this should be pro-
nounced. I hold also that there is a difference of
the exact note in which it should be pronounced
and I hold that there is no authority to say at
what note of the vocal octave the voice should
emanate.
“There are some who think that the speaking of
the word ‘Aameen’ aloud is required by devotion
and feeling and is necessary for their prayers. I
hold, therefore, that there is no authority in the
Mohammadan Ecclesiastical Law to limit the
tone of voice in which the word Aameen is to be
pronounced; that so long as the plaintiffs appel-
lants are Muhammadans, as we have found they
are, so long they are entitled to enter the mosque
and perform the worship and say the word
‘Aameen’ without anything to restrain their tone
STRIKING A BALANCE
Inderjit Badhwar
I
Whileresearching
ontherightto
worshipinrelation
totheongoing
Sabarimala
agitation,Ichanced
uponanilluminating
paperbysocial
anthropologist
GillesTarabout
publishedbythe
SouthAsia
Multi-disciplinary
Journal.Iwill
excerptcasescited
byTarabout.They
havea
directbearingon
theSabarimala
controversy.
Letter from the Editor

or note of the octave. But if the pronouncement
of the word ‘Aameen’ results in the disturbance of
peace, that of course will have to be dealt with
under the Criminal Law.” (Quoted in Syed
Farzand Ali 1980:§5)
In his final remarks, the author says:
Discussing secularism in India is usually done
by analyzing the Constitutional provisions and
the acts of judges in their implementation. As the
first part of this paper recalls, extended scholar-
ship has underlined the growth and the impor-
tance of legal categories such as “secular,” “essen-
tial practices,” “superstition,” in shaping
Hinduism today. The reformist agenda promoted
by some judges in accordance with an interpreta-
tion of the Constitution that gives precedence to
fundamental rights over the protection of reli-
gious freedom has further widened the scope of
the law’s intervention.
However, important changes in religion are also
brought forth through action of a less political
nature on the part of the courts. Such processes
result from systemic properties of Common law
and are quite independent from any secularist
agenda. One of them, already identified by schol-
ars, is the general effect produced by the fact that
the Constitution is centered on individuals on the
basis of equality, a legal framework at odds with
widely shared Hindu conceptions and practices.
The second part of this paper has tried to
explore two other characteristics of the legal sys-
tem that may similarly have a quasi-mechanical
impact on religion (not only Hinduism but others
as well): the fact that ordinary words are given a
legal, technical definition that is sometimes quite
different from their usual understanding in the
religious realm (for instance “religious service,”
“religious office,” “religious honor”); and the fact
that the protection of a civil right such as the
“right to worship” imposes on the court the duty
to rule on related religious issues, even “essential”
ones.
As a matter of fact, many of these legal defini-
tions and the whole reasoning behind the discus-
sion on jurisdiction make use of notions that were
originally developed for other purposes. A right to
an office is taken as an instance of a more general
right to property. The right to a religious office
does not differ from the right to any other office,
which means that it must satisfy the same condi-
tions to be held valid. The right to worship is
taken as just one instance of the right to access or
use land and water, which is regulated by disposi-
tions of the Criminal Code.
This suggests a much deeper-rooted entangle-
ment of law and religion than is usually assumed.
At one level it certainly can be approached in
terms of heritage, or enforcement of secularism,
or religious reform, or a judge’s personal agenda.
But at a much more fundamental level it also
results from the legal system itself which imposes
a legal categorization on aspects of religious life:
religion has to fall within this legal universe of
discourse and of enforceable rules. The kind of
religion that is thus eventually shaped is mostly
framed by questions and rules that were initially
elaborated for other, non-religious litigations.
Indeed, nearly all aspects of religious life may
thus be re-defined through such legal categories.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | January 14, 2019 5
Kaviyoor Santhosh
POLITICAL SLUGFEST
Violent protests in
Kerala over Sabarimala

ContentsVOLUME XII ISSUE9
JANUARY14,2019
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6 January 14, 2019
14Courting the Best & the Brightest
Britain’s immigration laws are set for a revamp as visas will be issued to migrants based
on their skills rather than nationality. This will create a level playing field for all migrants
LEAD
17Controversy’s Child
Despite the Supreme Court giving a
clean chit to the Rafale deal, there seems
to be no let-up in the pressure on the
government as a review petition has
been filed against the judgment
SUPREMECOURT
18Much Ado about Nothing?
Two recent notices issued by the centre have
kicked up an unnecessary storm over privacy
concerns when, in fact, they seem to be a step
towards better regulation of social media
CYBERSECURITY

Grip Tightens
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: HEATHROW AIRPORT
Ringside............................8
Courts ...............................9
Is That Legal...................10
Delhi Durbar ...................12
Media Watch ..................49
With the Pakistan army sharpening its knives,
the PML(N) and the PPP are in dire straits.
Hope lies with the next gen leaders, Maryam
Nawaz and Bilawal Bhutto
46
Nothing
Sacred Here
In the fourth of India Legal’s series on
significant judgments by former chief
justices, we bring you a verdict by former CJI
Dipak Misra in which he advocated animal
rights while maintaining the ban on Jallikattu
22
Hard Measures
The NGT has directed the Himachal Pradesh pollution body to
stop all stone crushers operating near water bodies in the state
31
No Child’s Play
In today’s wired world, children are most vulnerable to abuse, both
online and offline. Are existing laws enough to protect them?
32
GLOBALTRENDS
BOOKS
CYBERCRIME
SPECIAL
Unjustified Delay 42
The Uttar Pradesh government has
been fending off SIT requests for
prosecution of the accused in the 2013
Muzaffarnagar riots case. For the vic-
tims, it could be a long wait for justice
Tourism on the Rampage 44
Farmers are up in arms against the Karnataka government’s plans to set up a
Disneyland-style park at the KRS dam site in Mandya district, but the CM is hell bent
Religion a Threat to Secularism
In his book, Politics, Religion and
Judiciary in India, Dr HR Bhardwaj,
former Union law minister, talks about the
role of religion in India, how politics has
often interfered with it and how the
judiciary has intervened to set things right
Saving Srinagar’s Pride
Autonomy Battles
The iconic Dal Lake is on the brink
of inevitable death. The J&K High
Court has called for rescue efforts
to be undertaken on a war footing
and asked the state government to
take time-bound remedial steps
Based on his forthcoming book, India’s
Quasi-federalism—Faultlines, Challenges and
Opportunities, former Home Secretary and
Secretary, Justice, Madhav Godbole says the
Concurrent List should be expanded
28
34
38
Hit by a Tempest 40
Kerala CM Pinarayi Vijayan had
mooted the idea of a Women’s Wall
to uphold gender equality in the
Sabarimala case. But he is facing
criticism from many quarters while
violence has flared up again
STATES
ENVIRONMENT
MYSPACE
24
Don’t Tarnish a Good Name
Though doctors and hospitals are at the
receiving end of patients’ ire, the Constitution
has built-in guarantees to protect a person’s
reputation and goodwill
HEALTH

8 January 14, 2019
“
RINGSIDE
“I would very much
like to debate with
the Prime Minister
one-on-one on
Rafale, on anything
about combat air-
craft, on any strategic
issue.... But the
Prime Minister does
not have the guts…
to come and sit in
front of you....”
—Congress President
Rahul Gandhi while
addressing a press
conference
“The audio clip re-
leased by the Cong-
ress...is a desperate
attempt to fabricate
facts after their lies
were exposed by the
recent Supreme Court
verdict on Rafale....”
—Goa CM Manohar
Parrikar on his pur-
ported comments on
Rafale files at a cabi-
net meeting
...he is constantly
telling me, he built a
library in Afghanis-
tan. Library! That’s
like five hours of
what we spend (in
Afghanistan).... Don’t
know who’s using it
(the library) in
Afghanistan....”
—US President
Donald Trump, refer-
ring to PM Modi
funding a library
in Afghanistan
“If the Congress
doesn’t know the
lyrics of Vande Mata-
ram or if they feel
ashamed singing it,
then let me know. I
along with people
will sing it on the
first day of every
month at the Vallabh
Bhawan premises.”
—Former MP CM SS
Chouhan after the
state government dis-
pensed with singing of
Vande Mataram
“T 3045 - Kadar
Khan passes away ..
sad depressing news
.. my prayers and
condolences .. a bril-
liant stage artist a
most compassionate
and accomplished
talent on film .. a
writer of eminence ;
in most of my very
successful films .. a
delightful company...”
—Amitabh Bachchan
after Kader Khan’s
demise, on Twitter
“...militancy has
increased… ceasefire
violations have gone
up… economic activi-
ty, handicraft activity,
all are nil and there
is no employment
generation...”
—Congress leader
Ghulam Nabi Azad,
blaming the Modi gov-
ernment for destabil-
ising J&K in a debate
in Parliament
“Like many of his
students, I learnt my
ABCD of cricket un-
der Sir’s guidance.
His contribution to
my life cannot be
captured in words.
He built the
foundation that I
stand on....”
—Sachin Tendulkar
on the passing away
of his coach, Rama-
kant Achrekar
“We have given three extra holidays in
between. In asking for holidays, there
seems to be a broad consensus. As far as
the working of the House is concerned,
there seems to be some reservation for
some people.”
—Rajya Sabha Chairman M Venkaiah Naidu to
members disrupting proceedings in the House

The Supreme Court agreed
to hear on January 8 the
BJP’s plea against a Calcutta
HC order, denying the party
permission to hold a rath
yatra in West Bengal. The
party had moved the apex
court, challenging the divi-
sion bench’s order which
had set aside a single bench
order allowing the party to
hold its rath yatra progr-
amme renamed as “save
democracy rallies”. Last
month, though the party had
sought urgent hearing the
Court put off the matter until
after winter vacation. In its
plea, the BJP contended that
the fundamental right of the
petitioner to organise a non
violent yatra cannot be refu-
sed on the ground of mere
hypothesis and speculations.
The West Bengal governm-
ent had cited law and order
concerns to deny clearance.
Courts
—Compiled by India Legal Team
1984 convict Sajjan
Kumar surrenders
ASupreme Court bench of Chief Justice
Ranjan Gogoi and Justice Sanjay Kishan
Kaul said that further order on hearing of the
Ayodhya land dispute case will be passed by
an appropriate bench on January 10. On
October 28, 2018, the
Supreme Court had said
the matter will be listed
in the first week of
January for fixing the
date of hearing. Prior to
that, on September 27,
then Chief Justice Dipak
Misra headed bench, had
in a 2:1 verdict, decided
against referring a ques-
tion of law—whether
offering prayers in a
mosque is an essential
practice of Islam—to a
larger bench. The major-
ity opinion, authored by
Justice Ashok Bhushan
and supported by Justice Misra, had ordered
that the Ayodhya appeals “which are awaiting
considerations by this Court for quite a long
period, to be now listed in week commencing
October 29, 2018 for hearing”.
Justice AK Sikri, the second sen-
ior most judge in the Supreme
Court, has been appointed the
executive chairman of the National
Legal Services Authority (NALSA)
with effect from December 31,
2018. The post became vacant
after the earlier incumbent, Justice
Madan B Lokur, retired from the
apex court on December 30.
NALSA was constituted under the
Legal Services Authorities Act,
1987, to inter alia provide free
legal services to the weaker
sections of society.
SC to hear BJP’s rath yatra plea on January 8
Hearing a plea filed by advocate Aditya N
Prasad, a Supreme Court bench of Justices
AK Sikri and S Abdul Nazeer came down heavily
on the Meghalaya government and the centre for
failing to rescue the 15 miners, who have been
trapped in a rat hole mine in the East Jaintia hills
district since December 13. “We're not satisfied
with rescue operations....We pray to God they are
alive,” the Court said. The centre informed the
Court that the mine rescue operation was much
tougher than the one in the Thailand cave, and the
lack of a blueprint and constant water seepage
were hampering the efforts. The apex court has
asked the centre to file a status report on the
steps taken so far by January 7.
Former Congress MP and 1984
anti-Sikh riots convict Sajjan
Kumar surrendered before Delhi’s
Karkardooma court on December
30 and was immediately sent to
Mandoli Jail. Last month, the Delhi
HC had sentenced Kumar to life
imprisonment, reversing the acqui-
ttal granted to him by a trial court
in 2013, and asked him to surren-
der before December 31. He had
filed a petition seeking more time
to surrender, first before the Delhi
HC, and then, before the SC. Both
petitions were, however, rejected.
Why are miners still
trapped?: SC asks
Meghalaya govt
Ayodhya hearing date to
be fixed on January 10
NALSA gets new
executive chairman

10 January 14, 2019
ISTHAT
When is an arbitral award given
in a foreign country enforceable
in India?
Foreign awards are enforceable in
India in the same way as a decree
of a foreign court, given that India is
a signatory to the Convention on the
Recognition and Enforcement of
Foreign Arbitral Awards, 1958 (New
York Convention) and the Conven-
tion on the Execution of Foreign
Arbitral Awards, 1927 (Geneva
Convention). This means that if a
party receives a binding arbitral
award in a foreign country which is
a signatory to the New York
Convention and Geneva Convention,
and which has been notified as a
convention country by India, then
the award is enforceable in India.
How can a person directly approach the
Supreme Court of India?
Generally, a person approaches the
Supreme Court by invoking the
appellate jurisdiction mechanism,
i.e. by filing an appeal in the
Supreme Court against an order or
judgment of a High Court. In order
to file a case directly before the
Supreme Court, a person can
invoke Article 32 of the Constitution
which empowers a person to
approach the Supreme Court for the
purpose of enforcement of the rights con-
ferred by the Constitution. When approach-
ing the Supreme Court, one needs to file a
writ application before the Court, alleging
that his or her fundamental rights have
been infringed upon.
Possible to Directly
Approach the SC
—Compiled by Divyansh Trivedi
Enforcement of a Foreign Arbitral Award
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
How can one obtain a certified copy of
the order of the Delhi High Court?
Certified copies can be procured under
the rules of Chapter 5 of Volume 5 of the
Delhi High Court Rules and Orders. A
certified copy can be obtained by filing
an application under the above mentioned
rules. One prerequisite is that the person
filing the application should be a party to
the matter which is pending before the
Court. In the case of a matter which has
been decided by the Court, any person
can obtain a certified copy. The digital
copy is provided to the applicant through
a digital data server and the hard copy is
sent after the judgment is photocopied
and compared with the original file.
Getting Certified Copy
of a Delhi HC Order
?
Is the registration of a
marriage compulsory
for filing a divorce peti-
tion in a court of law?
Registration of a mar-
riage is not a mandato-
ry requirement, and in
order to file a divorce
petition in a court of
law, the registration of
a marriage is not a pre-
requisite. The purpose
of a marriage certifi-
cate is that it is taken
as evidence in a court
of law. However, if the
marriage certificate is
not available, the pho-
tographs of the wed-
ding, the wedding invi-
tation card and the
statements of witness-
es would suffice. One
important requirement
that has to be met in
filing a divorce petition
is that it should be filed
at the same place
where the marriage
was solemnised or
where the parties last
resided.
Registration of a
Marriage Not a Must

12 January 14, 2019
An inside track of
happenings in Lutyens’ Delhi
Over the last four years, the BJP has been claiming icons to
prove that the party’s identity is deeply rooted in Indian soil as
well as the national movement which was a creation of the
Congress party. It has adopted Ambedkar (law minister under
Nehru), Subhash Bose and Sardar Patel, and, lately, Mahatma
Gandhi as its own.
And now the party is laying claim to the famous Nehru
jacket which has no sleeves, hangs below the belt and rises at
the neck to form a stand-up collar. After having tried to wipe
out Nehru’s name from history textbooks in Rajasthan, the
BJP is asserting a sartorial right over India’s first prime minis-
ter’s signature upper body adornment by calling it the “Modi
jacket”. The Guardian notes that while Modi’s supporters call it
proof of the prime minister’s popular appeal because it is
selling like hotcakes in India’s khadi shops, critics call the
jacket a “fraud”.
Professor Ashok Swain of Uppsala University in Sweden is
quoted as saying that “it is the same style that Jawaharlal
Nehru made popular. It is exactly the same. Modi just
changed the colour”.
South Korea’s president, Moon Jae-in, recently tweeted a
picture of himself wearing a “Modi vest”. “During my visit to
India, I had told the Prime Minister @narendramodi that he
looked great in those vests, and he duly sent them over, all
meticulously tailored to my size. I would like to thank him for
this kind gesture,” he tweeted.
Quipped Omar Abdullah in a return tweet:“It’s really nice of
our PM to send these but could he not have sent them without
changing the name? All my life I’ve known these jackets as
Nehru jackets & now I find these ones have been labelled
‘Modi Jacket’. Clearly nothing existed in India before 2014.”
Observed The Guardian: “Now the Nehru-cum-Modi jacket
has found itself drafted into the wider fight over Indian history
and identity.”
JACKET WARS
The Hindu Photo Archives bjp.org

Delhi
Durbar
There could not have been a better kick-off to a
new year in Parliament than the debate over the
Rafale deal in the Lok Sabha that saw the
finance minister, the Virtual No 2 in the cabinet
and unofficial government spokesman, Arun
Jaitley, taking on a sprightly, fresh-from-electoral
victory Rahul Gandhi. As parliamentary debates
go, there was a surfeit of wit and barbs thrown
by both sides. On one occasion, reminded by
the speaker that he could not name business-
man Anil Ambani in his speech, Rahul respond-
ed by putting on a look of disbelief and asking
the speaker: “I can't name him?” Lok Sabha
Speaker Sumitra Mahajan said it was against the
rules. Rahul asked: “Ma'am, may I refer to him
as AA?”
The FM later countered Rahul, saying, “Since
he has been using abbreviations, I would like
to ask, was he playing in the lap of one Q,” using
the initial of the controversial Italian business-
man, Ottavio Quattrocchi, who was a close friend
of the Gandhi family and a key accused in the
Bofors case.
The mix of barbs and banter threatened to
derail the debate itself, but for Kalikesh Narayan
Singh Deo (below), the young BJD MP from
Odisha, whose interjection was both short and to
the point. “Where are the pricing
details of Rafale? Why not
have the House take a
closer look at the deal,
which has paralysed the
Indian Air Force? Jaitley
has cherrypicked facts.
Why is the pricing of the
deal available everywhere
except the official sources?”
Not only were his queries
brief and sharp, they
gave an idea of which
way the BJD—never
a trenchant govern-
ment critic—wind
was blowing.
Persistent rumours that
cricketing ace-turned-
Congress politician
Mohammed Azharuddin
would be joining the
Telangana Rashtra Samithi
to contest the 2019 general
election have now been
staunchly denied by the
former Indian skipper in a
tweet: “The news doing the
rounds in the media of me
joining the TRS party in
Telangana is incorrect &
false.” He is now firmly
entrenched in Telangana
politics as one of the
Congress’s state working
committee presidents.
The buzz about Azhar
ditching the Grand Old
Party, which he joined in
2009 and successfully con-
tested his first election from
UP’s Moradabad, started
when some of his support-
ers began spreading the
word that he would like to
contest from the Secun-
derabad Lok Sabha con-
stituency this time and had
received approval from the
party chieftains in Delhi.
The Secunderabad
option, however, met tough
resistance from the Greater
Hyderabad Congress
Committee president,
Anjan Kumar Yadav, who
believes he has a better
foothold there. Azhar,
sources say, was dis-
pleased with this rebuff
and sent an informal feeler
to Telangana CM K
Chandrasekhar Rao and
his son, KT Rama Rao.
As of now, it is still uncer-
tain from where Azhar
will contest.
AZHAR’S WRIST WORK
P’s & Q’s

Lead/ UK/ Immigration Rules
14 January 14, 2019
Welcome: The Best
and the Brightest
Inagladlyreceivedmove,thebiggestoverhaulofBritain’simmigrationsystemwillbeundertaken
whereskillsratherthannationalitywillmatter.Thiswillcreatealevelplayingfieldforallmigrants
By Sajeda Momin in London
@HighlySkilledUK

HERE is good news for
Indians wanting to mig-
rate to the United King-
dom. British Home Sec-
retary Sajid Javid has
published a White Paper
that sets out new immigration rules in
which migrants will be issued visas on
the basis of their skills and talent and
not their nationality.
In what is being described as the big-
gest overhaul of Britain’s immigration
system in 40 years, European Union
nationals will lose their current prefer-
ential status and migration targets will
be scrapped. “We are taking a skills-
based approach to ensure we can attract
the brightest and best migrants to the
UK,” said Javid, who is himself the son
of Pakistani immigrants to Britain. Call-
ing the proposals the “biggest change to
our immigration system in a genera-
tion,” Javid said he would be ending the
current dual system of admitting only
highly skilled workers from outside the
EU and workers of all skill levels from
the EU, and will be creating a level play-
ing field for all migrants.
The much-delayed White Paper also
announces the complete removal of a
cap on the number of work visas issued.
Currently, only 20,700 Tier 2, five-year
work permits are issued per year to
highly skilled employees from outside
the EU. The cap was imposed by There-
sa May when she was home secretary.
It ends the need for resident labour
market tests by UK employers in which
businesses have to advertise positions to
British workers first and can bring wor-
kers from abroad only if there are no
suitable domestic candidates.
However, there is no need for poten-
tial Indian migrants to start queuing up
for British visas just yet as these propos-
als, even if they get passed in parliament
and become a bill, will only come into
effect from January 1, 2021, after Britain
has left the EU and completed the post-
Brexit implementation period. If Brexit
does go through on March 29 this year,
it will end the right of EU nationals to
come into the UK without visas and
work freely.
The Brexit referendum has been pre-
dominantly won on the basis of “ending
free movement” of people and decreas-
ing migration into the UK. The propo-
nents of Britain leaving the EU had
promised their constituency that Brexit
would stop migrants “coming over and
taking their jobs”. While this had gone
down well among a large section of the
white British population, even some
Indian-origin immigrants had voted for
Brexit, believing that stopping free
movement from the EU would mean
more of their relatives from India would
be able to come to the UK.
Ironically, after the referendum,
racist attacks on South Asian immi-
grants increased as right-wing national-
ists, who were emboldened by winning
the Brexit vote, saw it as an opportunity
to end immigration from everywhere,
not just the EU. More incidents were
reported of white supremacists telling
South Asians to “go home”.
Prime Minister May has been a long-
standing advocate of lower immigration
levels. Even as home secretary, she had
promised that she would bring net
immigration down to below a lakh.
After she took up the prime minister’s
post in 2016, she has repeatedly stressed
that the central message of the Brexit
referendum was a demand that migra-
tion be controlled and she has vowed to
do it.
Javid, who is known to be close to
May, has in his proposal avoided men-
tioning an explicit cap on the total num-
ber of migrants who will be allowed into
Britain after Brexit. He said there would
be “no specific target” under the new sy-
stem, which would instead focus on ach-
ieving a level of migration that is “sus-
tainable for our economic need but at
the same time is not too high a burden
T
“Wearetakingaskills-basedapproachto
ensurewecanattractthebrightestand
bestmigrantstotheUK.”
—SajidJavid,BritishHomeSecretary
FUTURE PERFECT?
Highly-skilled migrants to the UK, who have
been seeking equity, can hope for a bright
future in the light of new visa proposals
UNI

Lead/ UK/ Immigration Rules
16 January 14, 2019
to our communities or our infrastruc-
ture”. While this is certainly better than
the current cap, it also does not mean
that an unlimited number of migrants
will be allowed in—it simply gives the
government the chance to choose and
change the number as it sees fit. With
the May government’s obsession with
lower levels of immigration, “sustain-
able” is bound to be a figure in the tens
of thousands as promised in the Conser-
vative Party manifesto.
T
hough the new system which
“favours experience and talent
over nationality” has been wel-
comed by some Indians, it is specific.
The new skilled work visa will be open
to non-EU and EU citizens alike, but
will have a lower annual salary thresh-
old of £30,000 and will require spon-
sorship from an employer just like the
current Tier 2 visas. What it will not
need is the resident labour market test,
and the skilled applicant does not need
to be a graduate, but can have interme-
diate education up to “A” Levels (Higher
Secondary in India). Those who come
in on this visa will be able to bring
dependents, extend their stay and settle
permanently.
Critics argue that it is impossible for
many skilled professions to meet the
£30,000 per year minimum income
guarantee as salaries for some profes-
sionals are not so high. For example, the
Indian restaurant industry has suffered
badly due to the immigration rules until
now which insisted that jobs should be
given to domestic employees first. They
were not allowed to bring in Indian
chefs and had to be content with non-
Indian employees who often could not
pronounce the names of the Indian
dishes, let alone cook them. With the
resident labour market test no longer
applicable, restaurants can bring in staff
from India, but the £30,000 per year
salary will be a difficult hurdle to cross.
Another area of concern is the
National Health Service which is essen-
tially run by immigrants. Saffron
Cordery, deputy chief executive of NHS
Providers, has warned that a high salary
threshold would have a disastrous im-
pact on the health service. “You have
got starting salaries for nurses at
£23,000, also for paramedics and mid-
wives. Junior doctors’ starting salaries at
£27,000, healthcare assistants at
£17,000, all coming in way below that
£30,000 cap,” said Cordery. Currently,
the NHS in England alone employs
63,000 EU nationals and if they all
leave, the NHS will collapse.
It is believed that Chancellor of the
Exchequer (finance minister) Philip
Hammond, Business Secretary Greg
Davis and Javid himself had expressed
concern in private about potential
staffing shortages resulting from the
salary threshold and supported a far lo-
wer cut-off at £21,000 per year. Howev-
er, May had resisted the proposal, hop-
ing that cutting the supply of cheap for-
eign labour will act as an incentive for
businesses to train home-grown staff.
Not convinced by May’s argument, Javid
has left a window open by insisting that
a final salary threshold would be con-
firmed only after further consultation.
To make up for the predicted short-
fall in low-skilled labour, the White
Paper announced a short-term workers
scheme which will only be for 12 months
without the option to extend. This
scheme will only allow citizens from
“low-risk countries”, but it is not clear if
India falls in this category. “This new
route will only be available for nationals
of specified countries, for example those
low risk countries with whom the UK
negotiates an agreement concerning the
supply of labour, including returns
arrangement,” says the White Paper.
Jim Bligh, chair of CII UK India
Business Forum, told India Legal: “Indi-
an industry has long called for a fair,
transparent and skills-based immigra-
tion system and the proposals go some
way to achieving these goals. Tackling
the UK’s skills gap, particularly in digi-
tal and technology, must remain a key
focus for government and it is welcome
that this paper recognises the value that
skilled workers from overseas can bring
to helping improve UK’s skills base.”
May hopes that by refusing to offer
EU migrants preferential treatment, it
will help to unlock future trade deals
with non-EU countries such as India.
With only three months before the
Brexit deadline, the end result of the
negotiations is still uncertain. Whether
this White Paper finally becomes a law
will have a lot to do with what eventu-
ally happens by the end of March.
VENTING FRUSTRATION
Ravneet Singh from Punjab whose turban
was ripped by a white man outside the British
Parliamentary Estate in UK
youtube.com

Supreme Court/ Rafale Deal
ESPITE the Supreme
Court giving a clean chit,
there seems to be no let-
up in the pressure on the
government over the
Rafale deal, both in Parli-
ament and in the courts. While the opp-
osition is keeping up the pressure in
both houses of Parliament, two former
BJP leaders and a PIL lawyer have filed
a review petition in the Supreme Court
on the ground that the judgment was
based on errors apparent in the first
instance and that it would cause “grave
miscarriage of justice” if left unchecked.
The petition also states that the judg-
ment did not deal with the petitioners’
prayer for registration of an FIR and
investigation of the matter by the CBI,
and the contract was reviewed “prema-
turely” without any “investigation” or
“inquiry” into the facts.
The review petition has been filed by
former BJP ministers Arun Shourie and
Yashwant Sinha and Senior Advocate
Prashant Bhushan. The judgment in
question was delivered by a three-judge
bench comprising Chief Justice Ranjan
Gogoi and Justices Sanjay Kishan Kaul
and KM Joseph on December 14, 2018,
and noted that the Court found no
“occasion to really doubt the [decision-
making] process [on the Rafale deal],
and even if minor deviations have occ-
urred, that would not result in either
setting aside the contract or requiring a
detailed scrutiny by the Court”.
The petition states that the impugn-
ed judgment relied on facts that are
“patently false”. It is further mentioned
in the petition that the CAG report
which had been relied upon in the judg-
ment does not exist at all. And there-
fore, there is no question of it having
been examined by the Public Accounts
Committee (PAC). The petition accuses
the central government of misleading
the Court, saying that: “The government
has blatantly misled the Hon’ble Court
and the Hon’ble Court has grossly erred
in placing reliance on false averments in
the note not even supported by an affi-
davit. The entire judgment is based on
disputed questions of facts in respect of
which an investigation needs to be done.
As the judgment is based on evidently
false averments in the note not shared
with the petitioners, on that ground
alone, the entire judgement ought to be
not just reviewed but recalled.”
The centre’s application seeking cor-
rections in the judgment regarding the
submission of the CAG report on the
pricing of the deal and the report’s sta-
tus in Parliament is also pending before
the top court. The centre’s submission
had recorded that under paragraph 25
of the judgment it is stated that pricing
details were shared with the CAG and
that the CAG report had been examined
by the PAC. Only a redacted portion of
the report was placed before Parliament,
the judgment added.
The petitioners have demanded a
review in this matter as the Court has
“erred” in reaching its judgment. Elab-
orating further, the petition states that
“because several new facts have come to
light after the judgment was reserved in
the matter, which go to the root of the
matter and falsify the claims of the gov-
ernment” it is imperative that the matter
be reviewed in an “open court” to serve
the interests of justice. The petition also
claims that the judgment was in viola-
tion of the principles of natural justice
as “the petitioners were not given an
opportunity to be heard on the claims
made in the government’s unsigned
notes resulting in gross miscarriage
of justice.”
D
POLITICAL HOT POTATO
Congress leaders including Rahul Gandhi at a
protest demonstration against the Rafale deal
Anil Shakya
No Let-Up
on Rafale Heat
Threepetitionershavemovedthe
SupremeCourt,seekingreviewofits
decisiontodismissallPILsalleging
irregularitiesinthedeal,sayingthe
judgmentrelieduponpatentlyincorrect
claimsmadebythecentre
By Naved Ahmed

Cyber Security/ Column/ Na Vijayashankar
18 January 14, 2019
Tworecentnoticesbythe
governmentkickedupa
stormoverallegationsthat
theywouldcompromise
privacy.However,theyseem
tobeattemptstocurbillegal
activitiesonsocialmedia
Is Big Brother Watching?
HE privacy of individuals
seemed to be at stake re-
cently. Two PILs were filed
in the Supreme Court
against a notification of
the Union home ministry,
with more promising to follow. They
sought quashing of the recent order of
December 20, 2018, on the grounds of
violation of privacy of citizens. The
order was made under Section 69 of the
Information Technology Act, 2000, as
amended in 2008 (ITA 2000/8) and
was called a mass surveillance attempt,
an assault on privacy and an attempt by
the Modi government to gain advantage
during the forthcoming general election
over its political opponents.
Before the Court could hear these
petitions, another order dated Decem-
ber 24, 2018, from the Ministry of Elec-
tronics and Information Technology
(MeitY) amending Section 79 of ITA
2000/8 raised a storm in the media.
This, too, could land in the Supreme
Court shortly. It was alleged that this
order violated freedom of speech and
was an attempt to censor and control
social media as well as facilitate snoop-
ing on citizens.
While this has understandably char-
ged up opponents, even professional cir-
cles seem confused about the legality of
the orders. The home ministry order
(see box: Ministry of Home Affairs) is
powers only as per the constitutional
propriety of “reasonable restrictions”
that can be placed on fundamental
rights through due process of law. The
due process is represented by Section 69
and the rules made thereunder. This
Section has existed in its present form
since October 27, 2009, and enables the
issue of directions for interception/mon-
itoring/decryption of any information by
a “competent authority” and for a “spe-
cific purpose”.
As Section 69 clearly emphasises that
it can be used only when the require-
ment is under “Permitted Reasonable
Restrictions of Fundamental Rights”
under Article 19(2) of the Constitution,
T
“in exercise of powers conferred under
Section 69(1) of ITA 2000 read with
Rule 4 of the Information Technology
(Procedure and safeguard for intercep-
tion, Monitoring and Decryption of
Information) Rules, 2009”. However,
this order is not an independent direc-
tive that can be considered actionable
without reference to the restrictions
under the relevant Act and Rules. This
fact has been ignored in most discus-
sions and media reports as well as the
PILs. The order is only designating the
agencies that can be used by a “compe-
tent authority” for exercising its powers
under Section 69 (1) of ITA2000/8.
Section 69 (1) itself is providing
Anthony Lawrence

it is not ultra vires the Constitution. The
rules under Section 69 were notified on
October 27, 2009, under the title “Infor-
mation Technology (Procedure and
Safeguards for Interception, Monitoring
and Decryption of Information) Rules,
2009”. This contains 25 clauses
which include:
Prohibition of any person carrying out
the monitoring except as provided un-
der the regulations. In view of the prohi-
bition, any violation of the due process
would render the person who carries out
such monitoring liable to be punished
under other sections of ITA 2000 such
as Section 66 with a possibility of
imprisonment up to three years with a
fine and also make him liable to the
affected individual to pay civil damages.
Designation of the competent authori-
ty, namely the Secretary, Home, in cen-
tral and state government.
Designation of agencies through
which the competent authority may con-
duct the monitoring. It is now restricted
through the ministry order to only 10
agencies. In the absence of this designa-
tion of agencies, the competent authori-
ty could have designated any official or
agency of its choice for conducting
the monitoring.
The direction for monitoring to be
issued in writing and should contain the
reasons for it and also name a person
responsible for execution of the order.
The agencies are authorised to desig-
nate a “nodal officer” who shall be
responsible for implementation and will
be accountable for strictly following
the order.
The orders of the competent authority
to be reviewed by a review committee
which is the same one constituted under
Rule 419A of the Indian Telegraph
Rules, 1951.
The order of monitoring to be for spe-
cific information and shall be valid for a
limited period of 60 days from the issue
with a possible renewal up to 180 days.
The information so collected to be
destroyed after 180 days unless it is
required for legal purposes as evidence.
Intermediaries and computer owners
to assist the monitoring agency to be co-
operative, failing which they shall be
liable for prosecution, which will be
through a judicial process.
Thus, it is to be noted that the rules
are comprehensive and fully meet the
requirements of “due process”. All the
excitement generated about the order
being “mass surveillance” of citizens is
not backed by facts.
So on what grounds were the two
PILs filed? Some of the objections were:
This is a blanket order against the
public for monitoring their activities
without reason: This may be unsustain-
able as the power to monitor can be
exercised only by the competent author-
ity through these agencies and not by
the agencies themselves.
It considers every citizen a criminal:
This may not be true as the competent
authority has to specify the reasons in a
written order which is also subject to
review by a higher authority and will
also be subjected to judicial review by
any person who suffers a wrongful con-
sequence thereof.
It is bad in law: This too may be
unsustainable as it is the duty of the
government to secure the State and col-
lecting information that can lead to bet-
ter security of the people is part of the
expected duties of the government.
It allows imposition of criminal pun-
ishments under several sections of ITA
2000/8: Such punishments can be
imposed only against persons who are
so liable for conviction and not merely
because their criminal activities became
known to the law enforcement authori-
ties because of the monitoring.
It will be used to fix innocent citizens
and control the entire country under
dictatorship: This is mere speculation.
Without an FIR, the State cannot ini-
tiate any action against any citizen of
India in a cognisable offence: These
powers are exercisable only if the re-
quirement is recorded in writing. Also,
the person giving such an order is liable
for prosecution if it is proved that he has
misused the powers.
Hence, the grounds on which the
PILs have been filed do not seem to be
based on facts or logical reasoning. This
conclusion would remain even if the
landmark Puttaswamy judgment is
Itseemsthatthetwonotifications
relatedtotheITActfromthegovernment
areaseriousattempttomitigatethe
possibilityofsocialmediaandthe
internetbeingusedforillegalactivities.
Sec 69: Powers to issue directions for interception or monitoring or decryp-
tion of any information through any computer resource
(1) Where the Central Government or a State Government or any of its officer spe-
cially authorized by the Central Government or the State Government, as the case
may be, in this behalf may, if is satisfied that it Is necessary or expedient to do in the
interest of the sovereignty or integrity of India, defence of India, security of the State,
friendly relations with foreign States or public order or for preventing incitement to
the commission of any cognizable offence relating to above or for investigation of
any offence, it may, subject to the provisions of sub-section (2), for reasons to be
recorded In writing, by order, direct any agency of the appropriate Government to
intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted
any information transmitted, received or stored through any computer resource.

Cyber Security/ Column/ Na Vijayashankar
20 January 14, 2019
brought into the discussion as the con-
ditions under which privacy is a funda-
mental right are subject to reasonable
restrictions. These are met by Section
69 and the notification which together
constitute “due process of law”. In the
Justice KS Puttaswamy (retd) and Anr
vs Union of India and Ors judgment, it
was held that the right to privacy is pro-
tected as a fundamental constitutional
right under Articles 14, 19 and 21 of the
Constitution.
O
n December 24, 2018, the gov-
ernment put up a draft amend-
ed rule under Section 79 of ITA
2000/8 for public comments. This is
called the Information Technology
[Intermediaries Guidelines (Amend-
ment) Rules], 2018, and amends the
earlier rule which was issued on April
11, 2011. The new regulations have pro-
posed some important changes related
to social issues such as prohibition of
promotion of cigarettes, tobacco prod-
ucts, liquor, etc, which have not faced
any objection in the initial media reac-
tions. What has now attracted the ad-
verse attention of critics are those relat-
ed to the proposals to curb spread of
fake news through social media.
The key provisions that have attract-
ed attention in these guidelines are that
appropriate agency.
Deploy technical measures and con-
trols for proactively removing unlawful
content.
Like the objections raised for data
localisation in respect of the proposed
personal data protection law, industry
players, which include international
giants such as Google, Facebook,
Twitter, WhatsApp, Instagram, etc, may
the intermediary:
Operate through a company incorpo-
rated in India (applicable if there are
more than 50 lakh users or the govern-
ment has otherwise notified the inter-
mediary).
Provide information and assistance to
a government/investigation agency
within 72 hours, when required under a
“lawful order”.
Remove objectionable information
within 24 hours when receiving either a
Court order or a notification from an
T
he recent notification on December
20 by the Ministry of Home Affairs
notified 10 agencies to intercept,
monitor or decrypt any information
through any computer source. Many of
these agencies are even exempted
under the RTI Act and report directly to
the Executive.
Another notification was on Decem-
ber 24 by the Ministry of Electronics and
Information Technology which amended
Section 79 of the Information Technology
Act ostensibly to address the issue of
fake news. But the notifications were
challenged in the apex court as they
were against existing laws. No one can
be put under surveillance unless he is a
threat to the nation’s security and the
reasons must be in writing.
It was laid down by the Supreme
Court in Shreya Singhal vs Union of India
while discussing the constitutionality of
Section 69 A that the reasons for block-
ing content must always be in writing so
that they can be challenged in a writ peti-
tion under Article 226. The Article says:
“…every High Court shall have powers…
to issue to any person or authority, inclu-
ding in appropriate cases, any Govern-
ment, within those territories directions,
orders or writs, including writs in the
nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari,
Privacyisafundamentalright
Any attempt by the Executive at surveillance of its citizens cannot be arbitrary as the Court has
laid down clear guidelines in this regard
TRAWLING WOES
Changes in the IT Act may affect social media

raise their objections to resist the need
to have a local company which could
add to their corporate governance costs.
There is a counter view that many of
these entities are today much more than
communication platforms and have
even ventured into becoming financial
intermediaries (GPay, WhatsApp Pay,
Twitter or Facebook Banking, etc) and
there is a need to bring them under
tighter local regulatory supervision. The
proposed measures of “management
localisation” would be a step in this
direction and lead to better tax and
legal compliance.
A
s regards the need to remove
content under certain circum-
stances, the requirement arises
only when the order is “lawful” or there
is a “Court order”. Hence, there is no
justification for objection. The interme-
diary needs to put in place systems and
procedures to comply with the provi-
sions as a part of ITA 2008 compliance.
Identifying what is “lawful” will be with
reference to “objectionable content” re-
ferred to in the guideline itself and the
information which is relatable to Article
19(2) of the Constitution.
Understanding these and translating
it into necessary policies and procedures
are part of the compliance process.
When these intermediaries can translate
complicated regulations like General
Data Protection Regulation into auto-
mated technical compliance controls,
converting these guidelines should not
be an issue. When there is disagreement
between the authority seeking removal
of the content and the intermediary, it is
open for either to resort to “adjudica-
tion” as provided under ITA 2000/8 or
other means that may be available
under law.
The technical measures and controls
required to be implemented under the
guidelines do not speak of any “decryp-
tion”, though this is a power available
under Section 69 of the ITA 2000 and
can be exercised over any IT operator,
including an intermediary, subject to
conditions indicated under Section 69.
On the other hand, what is required
under the Section 79 guideline is a reli-
able identification of the origin of the
message such as the IP address, mobile
number, etc. These are measures which
are not difficult to implement. Such
requirements have come up for judicial
review globally as far back as 2000 in
the LICRA vs Yahoo case and courts
have held that the intermediary is duty-
bound to introduce adequate technical
measures to comply with the legal
requirements.
The amendments are, therefore, rea-
sonable and the objections raised repre-
sent more the economic inconvenience
that the intermediaries may face. They
do not carry legal weight.
In short, it seems that the two notifi-
cations are a serious attempt by the gov-
ernment to mitigate the possibility of
social media and the internet being used
to carry out illegal activities. The ques-
tion “why now” can only be countered
with “why not now?”
Hopefully, the industry will cooper-
ate and the courts will appreciate the
need for such regulations and deal
with the legal objections in an appropri-
ate manner.
—The writer is a cyber law and
techno-legal information security
consultant based in Bengaluru. The
views expressed are personal
or any of them, for the enforcement of
any of the rights conferred by Part III and
for any other purpose.”
The 1996 judgment in People’s Union
for Civil Liberties (PUCL) vs Union of India
was a significant attempt to solve the
problem of widespread telephone tap-
ping, and its influence has been strongly
felt in subsequent laws designed to bal-
ance the right to privacy against the
State’s power to conduct surveillance.
This landmark decision discussed the
right to privacy at length. It was later
declared a Fundamental Right under
Article 21 of the Constitution in Justice
KS Puttaswamy (retd) & Anr vs Union of
India & Ors. In this judgment, the Court
also laid down detailed guidelines for the
exercise of the Executive’s surveillance
powers. These include:
Orders for telephone tapping must
only be issued by the home secretary of
the central or state government. In an
emergency, this power may be delegated
to an officer of the home department of
the central or state government, and a
copy of the order must be sent to the
concerned review committee within
one week.
The authority making the order must
consider whether the information consid-
ered necessary to acquire can be rea-
sonably acquired by other means.
Review committees shall be constitut-
ed consisting of secretary-level officers at
both central and state levels. They may
evaluate whether an interception order
has been passed in compliance with the
law, and if it has not, they may set it
aside and direct destruction of any
copies of intercepted communications.
The safeguards against arbitrariness
in the exercise of the state’s surveillance
powers designed by the Court continue
to apply in the internet age. However,
new mass surveillance programmes
being undertaken by the government that
seem unprecedented in their scope
necessitate a thorough re-examination of
our privacy laws
—By Kunal Rao
Thequestion“whynow”canonly
becounteredwith“whynotnow?”One
hopesthattheindustrywillcooperate
andthejudiciarywillappreciatethe
needforsuchregulations.

A CRUEL SPORT
Youth trying to tame a bull
during a Jallikattu event at
Alanganallur village
near Madurai
Special/ Former CJI Dipak Misra’s Judgments/ Jallikattu
22 January 14, 2019
FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft
hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome
ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa
chiefjusticemusttackle.IndiaLegal runsaseriesonthesejudgments
CASEDETAILS
Title: Chief Secretary to the Government, Chennai, Tamil Nadu & Ors vs Animal Welfare Board & Anr
Bench: Justices Dipak Misra and Rohinton Fali Nariman
Case no: Review Petition (Civil) No 3769 of 2016 in Civil Appeal No 5387 of 2014
Date of judgment: November 16, 2016
In Defence of Animal Rights
By Ramesh Menon
between bulls and bull tamers are pro-
hibited under Section 11(1)(m)(ii) read
with Section 3 of the Prevention of Cru-
elty to Animals Act, 1960. However,
Section 5 of the Tamil Nadu Regulation
of Jallikattu Act, 2009, permits fights
between bulls and bull tamers. Hence,
there is a contradiction between the
Tamil Nadu Regulation of Jallikattu
Act, 2009, and the Prevention of Cru-
elty to Animals Act, 1960. The apex
court had dismissed the review petition.
In its wisdom, the Supreme Court
had disallowed the age-old practice of
Jallikattu in Tamil Nadu, where bulls
are let out into an open arena while
groups of young men try to take control
of them. The frightened bulls are natu-
rally aggressive as they are put in a nar-
row enclosure before being let out. To
agitate them further, participants often
beat them with sticks, bite their tails
and even insert chilli paste into the eyes
or anus.
While animal activists had welcomed
the judgment banning the primitive pra-
ctice, supporters of Jallikattu organised
state-wide protests against the verdict,
saying that the tradition was a part of
the indigenous culture of the state. They
played up the sentiment that it was a
question of Tamil cultural practices and
REVIEW petition was filed
by Tamil Nadu against the
judgment of the Supreme
Court which held that Jalli-
kattu is not an act essential
to religion or any religious
practice, and therefore cannot be pro-
tected under Article 25 of the Consti-
tution. After hearing the arguments of
both parties, the Court held that fights
A
Photo: UNI

pride and that was what was being
destroyed. The narrative worked. The
central government was caught in a
weak-kneed moment. It directed the
Tamil Nadu governor to bring in an
ordinance in 2017 to allow Jallikattu.
As many as 43 people died and 5,263
were injured in Jallikattu events betwe-
en 2008 and 2014, according to the An-
imal Welfare Board of India. Many of
the victims saw a bloody end as they
were gored by bulls during the Pongal
festival when Jallikattu is traditionally
held. Four bulls also died during this
period. This is precisely why animal
activists had prayed in the Supreme
Court for a ban which was imposed
numerous times by the Court. An inde-
pendent investigation by the Animal
Welfare Board of India had revealed
that Jallikattu was inherently cruel
to animals.
In 2011, the Ministry of Environment
and Forests had banned the use of bulls
as performing animals. This naturally
meant that Jallikattu could not conti-
nue. But it did continue under the cover
of a state law.
In May 2014, the Supreme Court had
struck down the state law and banned
Jallikattu. The Court said that if the ban
were flouted, penalties would be enforc-
ed under the Prevention of Cruelty to
Animals Act, 1960. The Court also
called upon the central government to
amend the law on preventing cruelty to
animas to include bulls within its ambit.
Events such as Jallikattu have cruelty
inherent in them as bulls are not suited
for such activities and making them par-
ticipate in them results in unnecessary
pain and suffering, the Court said.
T
he review petition asking for the
ban to be removed was heard by
a bench of Chief Justice Dipak
Misra and Justice Rohinton Fali Nari-
man. The judges minced no words when
they said that Jallikattu caused consid-
erable pain, stress and strain to the tor-
tured bulls, exhausting and injuring
them. They further said the Court could
refer to the cultural ethos only if it did
not run counter to constitutional
thought and principle. Saying that there
was no connection between Jallikattu
and the right to freedom of religion, the
Court dismissed the review petition.
Earlier, the Ministry of Environment
and Forests had permitted the continua-
tion of the tradition under certain con-
ditions. What this did was end the ban.
However, the Supreme Court had stayed
the order permitting Jallikattu. It, there-
fore, effectively upheld the earlier ban.
This led to widespread protests in vari-
ous districts in Tamil Nadu. While hear-
ing petitions asking for the ban to be
removed, the Supreme Court made it
clear that it would not do so. Unable to
handle the protests, the Tamil Nadu
governor used the ordinance route to
authorise the continuation of Jallikattu.
In January 2017, the state legislature
passed a Bill exempting Jallikattu from
the ambit of the Prevention of Cruelty to
Animals Act.
Unless the centre amends the law,
the state law will prevail. Not wanting to
ruffle feathers in the southern state, it
is unlikely the centre will make any such
move. In Tamil Nadu, Jallikattu is no
longer seen only as a traditional festival,
but a form of resistance against the cen-
tral government which allegedly wants
to destroy Tamil culture and impose
northern dominance. Pro-Jallikattu
activists twisted the narrative to say that
their culture was in danger and this
rhetoric found acceptance on a scale
that even they had not expected. The
protests drew religious leaders and
politicians who were eager to play to the
gallery and exploit the situation for their
narrow ends. On the street, they were
ready to defy the directions of the high-
est court of the land.
TAKING A STAND
(Left) Protesters in Chennai demanding lifting
of the ban on Jallikattu; (above) Justice RF
Nariman was also part of the SC bench
Asmanyas43peoplediedand5,263
wereinjuredinJallikattueventsbetween
2008and2014,accordingtotheAnimal
WelfareBoardofIndia.Fourbullsalso
diedduringthisperiod.

My Space/ Concurrent List Madhav Godbole
24 January 14, 2019
Chandrashekar Rao, chief
minister of Telangana, who
won a second term with a
comfortable majority in the
recent elections and who
has ambitions to play a ma-
jor role in national politics, has stressed
the importance of giving more auto-
nomy to states. He has suggested that
the Concurrent List in the Seventh
Schedule of the Constitution should be
done away with. He believes that state
governments should be free to decide
what is in their best interest. “I am go-
ing to give a new definition to the poli-
tical scenario in this country,” he pro-
claimed recently (The Indian Express,
December 17, 2018, p. 10). Such half-
baked, ill-considered pronouncements
by someone who has prime-ministerial
ambitions are worrying.
At the outset, it needs to be stated
that the Concurrent List includes, am-
ong others, items of common concern
for states and the centre such as civil
and criminal laws and procedures, edu-
cation, administration of justice and
electricity. The importance of having a
nation-wide common approach on a
number of such subjects can be readily
appreciated. Pooling the resources of
states and the centre can go a long way
in meeting the ever-rising expectations
of people. This is amply brought out by
the sizeable investments made by the
central government in the electricity
sector to supplement the efforts of
states. To leave all these subjects entirely
to states will retard the progress of
the country.
It may be pertinent to note that
when the eternal question of powers of
the Dominion government to legislate
The Nation
Comes First
TheTelanganaCMhasdemandedabolitionofthisList.Thisisahalf-bakedsuggestionasthe
Listincludesitemsofcommonconcernforstatesandthecentre,andshouldbeenlarged
K
A PURPOSEFUL FORUM?
Union Home Minister Rajnath Singh chairing
the 11th Standing Committee meeting of the
Inter-State Council in New Delhi
UNI

on matters falling in the state’s concerns
was raised by the State of Ontario in
Canada, the Privy Council applying the
test of “national concerns” had held that
if the subject matter of the legislation
goes beyond local or provincial concerns
or interests…it must be treated as affect-
ing the peace, order and good govern-
ance of Canada (Ontario (AG) vs Can-
ada Temperance Federation). Thus, uni-
versally, the tendency is to look at issues
in the larger national perspective. In the
case of India too, in the light of experi-
ence so far, the Concurrent List needs to
be enlarged, rather than curtailed, leave
aside abolishing it.
The Indian Constitution is one of the
more successful constitutions adopted
by any country in recent years. It has
been flexible enough to incorporate over
120 amendments considered necessary
from time to time in the last 68 years.
Except for some highly controversial
amendments effected during the term of
Indira Gandhi as prime minister, most
of the others were well conceived and
largely welcomed. Significantly, a few of
these led to the transfer of some subjects
from the State List to the Concurrent
List. These included administration of
justice; constitution and organisation of
all courts (except the Supreme Court
and High Courts which were always in
the Union List); education, including
technical education, medical education
and universities; trade and commerce;
forests, protection of wild animals and
birds; and weights and measures.
In a number of countries, the trend is
towards greater centralisation of pow-
ers, rather than decentralisation. The
decisions of the highest courts in these
countries, too, have contributed to this
development. The forces of globalisation
and the compulsions of increasing inter-
national competition, too, have under-
lined the importance of adopting nat-
ional policies on a number of subjects.
An article by Dr KK Aggarwal titled
“One India-One Health Policy?” in the
India Legal issue of December 24, 2018,
for example, makes a plea for adoption
of a national health policy on the lines
of the national eligibility-cum-entrance
test. It has been gratifying to see that
the initial resistance of some states such
as Tamil Nadu to the entrance test for
admission to medical colleges in the
country has disappeared completely.
There are indications of greater accept-
ance of the proposal for setting up more
all-India services such as for the subor-
dinate judicial service. Laying down all-
India standards for various subjects,
institutions and services is the only way
in which the productivity, efficiency and
quality of life can be improved.
After non-Congress governments
came to power in a number of states, the
overbearing attitude adopted by the
Union government from the time of
Indira Gandhi’s prime ministership led
to strained relations between the central
government and states and these have
become even more acrimonious. As a
result, the term “confidence-building
measures”, which is generally used in the
context of improving relations between
countries, is equally apt for mending
relations between the Union govern-
ment and states.
T
he concept of federalism is being
increasingly bandied about by
political parties and states in the
context of the Lok Sabha elections this
year. At the outset, it needs to be under-
lined that India is not a federation. The
Constitution clearly states that India is a
union of states. But, for ensuring a
smooth working relationship between
the Union and states, the founding
fathers of the Constitution had con-
sciously included several features of fed-
eralism in it. The Constitution can,
therefore, rightly be described as quasi-
federal. It has also been variously de-
scribed as a union of federal states, pra-
gmatic federalism, asymmetrical feder-
alism, and amphibian federalism.
The political rhetoric of federalism is
being increasingly used by states to opp-
ose even some worthwhile proposals
made by the Union government. Two
recent examples bring this out. Railway
police is a state subject. This police, be-
longing to the railway ministry, is res-
ponsible only for watch and ward
Theroleofthestatehastobethatofa
facilitatorineveryway.Towardsthisend,
somesubjectsmustbeentrustedatthe
municipaloreventhelowerlevelofa
villagepanchayat(below).
yourarticlelibrary.com

My Space/ Concurrent List/ Madhav Godbole
26 January 14, 2019
duties. As has been seen, in the case of
offences during travel, the victim has to
run from pillar to post to register the
offence in the relevant police jurisdic-
tion. It is imperative that the railway
police is given powers under the Police
Act. Such a proposal made by the min-
istry of railways was strongly opposed by
some states on the ground that it would
dilute their powers!
Another issue was that of Lokayuktas
who had been repeatedly urging in their
annual conferences that a uniform all-
India law should be enacted to increase
their powers and make their offices
more effective. Such a proposal was
opposed by some states on the specious
ground that it would militate against the
federal spirit of the Constitution, what-
ever it means!
One is unable to see why there
should not be an all-India law for police,
but this too has been opposed on the
ground that police is a state subject.
Each state can enact special provisions
in the said law to suit its requirements,
but there is every justification to have an
all-India law on police with common
features such as recruitment, training,
representation to minorities, women
and weaker sections, emphasis on hu-
man rights, redressal of public grievan-
ces, upholding the rule of law, uniform
policy on transfers, fixation of tenure
and so on. Why should there not be a
national policy on eradication of corrup-
tion? Why should autonomy of states
intrude into these matters?
W
hen the Constitution was
framed, the menace of terror-
ism was not as prevalent or as
acute as at present. Several crimes are
now seen to have not only an all-India
spread but have international ramifica-
tions. Serious and widespread commu-
nal violence in places such as Godhra,
Mumbai and Ahmedabad, to name a
few, had national repercussions. The
demolition of Babri Masjid by frenzied
mobs with active connivance of the state
government was a new experience
which was not foreseen by the framers
of the Constitution. It is shocking that
in a continental-size country with so
many diversities, India cannot have a
federal civil police. In this light, it is
imperative that the entries “police and
public order” are shifted from the State
List to the Concurrent List.
It is necessary that these concerns
are looked at in the larger national per-
spective rather than from the narrow
confines of autonomy of states. It is also
necessary that they are considered keep-
ing in mind India’s emergence as a
regional power. The role of the state has
to be that of a facilitator in every way.
Towards this end, some subjects must
not be dealt with even at the state level.
Some must be entrusted at the munici-
pal or even the lower level of a village
panchayat. But there are a large number
of subjects on which a national perspec-
tive is necessary.
India has set an outstanding example
of co-operative federalism by enacting
the Goods and Services Tax. All political
parties have come together in achieving
this. The UPA government, led by the
Congress itself, had taken the initiative
in the matter, though it is now being
unfairly derided by Rahul Gandhi, the
Congress president, as a Gabber Singh
Tax! This is ridiculous, to put it mildly.
I have been suggesting for quite some
time that for the CBI, a governing coun-
cil comprising the prime minister, con-
cerned central ministers, and some chief
ministers, by rotation could be consti-
tuted to oversee larger policy matters
pertaining to the organisation. This
would go a long way in reducing the
resistance of states to the enactment of a
separate law for the CBI. The constitu-
tional mechanism of Inter-State Council
ought to be used more effectively and
purposefully to discuss and resolve cen-
tre-state issues. With political maturity
and statesmanship, innovative app-
roaches can be developed to impart a
new meaning and content to India’s
quasi-federalism.
—The writer is a former home secretary
and secretary, justice, Government of
India. The essay is based on his forth-
coming book, “India’s Quasi-federal-
ism—Faultlines, Challenges and
Opportunities”
Thepoliticalrhetoricoffederalismisbeing
increasinglyusedbystatestoopposeeven
worthwhileproposalsmadebythecentre.
Tworecentexamplespertaintotherailway
policeandtheLokayuktas.
LEADERS WITH GIANT AMBITIONS
Centre-state relations were severely strained
during Indira Gandhi’s prime ministership;
(right) Telangana CM K Chandrashekar Rao
UNI

Environment/ Dal Lake
28 January 14, 2019
FFORTS are on by the judici-
ary to save the iconic Dal
Lake. Recently, a division
bench of the Jammu and
Kashmir High Court headed
by Chief Justice Gita Mittal
and including Justice Sanjeev Kumar
said that the “Dal Lake will die” if “Her-
culean”, “multi-pronged” rescue opera-
tions are not undertaken on a “war foot-
ing”. It has fixed a time schedule for gov-
ernment authorities to take numerous
steps to save this historic water body.
The Dal Lake is the pride and joy of
the Kashmir Valley, especially Srinagar,
and one of the key tourist attractions. A
boat ride on its placid waters in the ba-
ckdrop of the picturesque Zabarwan
range is a must for tourists. However,
human greed is consuming the lake. Its
area has shrunk to 13.5 sq km from 50
sq km half a century ago. It is inhabited
by about 70,000 people living in pucca
houses, houseboats and dungas (old-
fashioned houseboats not as luxurious
as modern ones which have top-class
furniture and intricate wood panelling).
There are 911 houseboats, all but one
registered. In addition, there are 140
dungas where cooking and other activi-
ties are undertaken for guests living
in houseboats.
The sewage from all these, including
night soil, sullage and solid waste are
released into the lake. There are floating
gardens where chemical fertilisers and
pesticides are used to increase produc-
tion, harming the quality of the water.
Existing sewage treatment plants (STPs)
have outdated technology. A substantial
part of the northern side of the lake is
inundated by effluents from nearby
habitats which don’t have STPs.
In addition, the catchment area, cov-
ering 337 sq km is extensively cultivat-
ed. As a result of this, weeds, commer-
cial fertilisers and chemicals flow towa-
rds the lake, causing its “slow death”.
All these details are based on court
judgments from time to time, a reported
study of Kashmir University and find-
ings of the first report of a Court-app-
ointed Committee of Experts (CoE). The
coordinator of the CoE is Nivedita P
Haran, a retired IAS officer credited
with experience in disaster management
and labour migration. Its other two
members are MC Mehta, a well-known
environment lawyer hailing from
Jammu and Kashmir, and Mangu Singh,
CEO of Delhi Metro Rail Corporation.
After 2002, a whopping sum of `759
Saving
Srinagar’s
JewelQuitelikeotherwaterbodiesinIndia,this
iconiclaketooisdyingaslowdeath.The
JammuandKashmirHighCourthasnow
steppedinwithtime-boundmeasurestorescue
itfromsewageandeffluents
By Pushp Saraf
E
HumangreedhasconsumedtheDal
Lake.Itsareahasshrunkovertheyears.
Sewage,includingnightsoil,sullageand
solidwastefromhouses,houseboatsand
dungasarereleasedintothelake.

crore was spent in the name of the lake,
but, shockingly, has gone down the
drain. A bench headed by Chief Justice
Mittal and including Justice Dhiraj
Singh Thakur had in a judgment on
September 18, 2018, stingingly obser-
ved: “Over four hundred crores of
rupees have pumped into the issues
relating to the Dal Lake by the Govt. of
India. The authorities of the State claim
to have spent Rs. 359.93 crores from
2002-03 to 2018/19 ending 08/2018
with nothing to show for it as so far
nothing appears to have happened on
ground. We are of the view that given
position on the ground deserves to be
investigated. However, saving the Dal
Lake being more critical, we shall defer
this issue as at present... We have no
manner of doubt that immediate meas-
ures are necessary before the critical sit-
uation is rendered hopeless.”
T
he September 18 judgment
reflected the renewed determina-
tion of the Court to save the lake
despite lack of response by concerned
authorities. It appointed the CoE and on
the basis of its report, the division bench
has now ordered time-bound measures.
It recalled past experiences and said the
matter has “engaged the attention of this
Court for a period of almost 16 years”.
Expressing its anguish, the Court said:
“The order sheet in the case runs into
13 volumes. A cursory examination
thereof would show that the repeated
agony has been expressed by the Divi-
sion Benches with regard to the failure
as well as inability of the respondents to
take effective steps for discharging their
constitutional statutory as well as public
law responsibilities.”
It specifically recalled at least three
previous rulings. A ruling on August 18,
2015, attributed the decrease in the
lake’s area to “illegal constructions and
encroachments because of such con-
struction” and remarked that “a large
area of Lake has been eaten up by ever
expanding neighborhoods and commer-
cial buildings like hotels, guest houses
and restaurants. Lackadaisical
A LAKE IN PERIL: (Top) Labourers de-weeding the Dal Lake to restore its former glory;
foreign tourists boarding a shikara to take a ride on the lake
Photos: UNI

Environment/ Dal Lake
30 January 14, 2019
approach on part of law enforcing agen-
cies has emboldened land mafia, tress-
passers and encroachers to undertake
earth filing of peripheries of Lake result-
ing in further decrease in its area”. Ano-
ther judgment on March 23, 2009 decl-
ared the lake “custodia legis”, while a ju-
dgment on July 19, 2002, disallowed co-
nstruction activities “within 200 metres
from the centre of the offshore road”
and in restricted and green belt areas.
CJ Mittal and Justice Thakur ob-
served: “Despite all of the above, the sit-
uation of the Dal Lake continues to reg-
ress and the position remains dismal...
the authorities within the State have
proved helpless and unable to effectively
ensure that some meaningful outcome
results.” Competent authorities did not
inform the Court about violations and
citizens largely stayed back for fear of
reprisal by violators.
The High Court’s latest order follows
an unambiguous warning by the CoE:
“If the situation continued with business
as usual, the Lake will not survive be-
yond 30 years maximum.” Based on the
CoE’s finding, the Court in December
said that “the Dal Lake is dying. The
pollution load in the Lake has reached
such alarming levels that unless some-
thing is done with urgency and alacrity,
it may be impossible to save the Lake”.
The CoE reached the conclusion af-
ter collecting “first hand evidence” and
interacting “with a host of experts, both
scientific and technical, officials at every
level and non-state actors”. One of its
findings was that there was a mismatch
between intentions and performance:
“...there is no dearth of authorities or
regulations. The problem seems to be
primarily of enforcement and imple-
mentation”. It pointed out: “The flow-in
of pollutants into the Lake has contin-
ued unrestricted for so long now that it
has turned the Lake into a congested,
sludge-filled, weed-infested body. If the
Dal is to be saved, many of the cruel, in-
considerate, and some criminal activities
need to stop and stop at the earliest.”
It has cited scientific data to support
its arguments.
T
his prompted CJ Mittal and
Justice Kumar to stress preserv-
ing “the continued existence of
the Dal Lake”. This, in the CoE’s opin-
ion, “is imperative for climatological,
geological, ecological, economic and
socio-cultural reasons” as “the Dal is the
epicentre of Kashmir and a pride of this
place, nay, our country” and “tourists
visit Srinagar only for a glimpse of the
lake, to admire its beauty and to take a
ride on its once-sparkling clear water”.
The division bench gave a slew of
directions. These included: Secretary,
Department of Environment and Forest,
to make available geological or any other
maps, satellite, digital or other ima-
geries setting out the boundaries of the
lake and the variations thereof over a
period of time; dismantling and clearing
floating gardens within six months; cre-
ating a fully-dedicated body called the
Dal Lake Conservation and Develop-
ment Authority; the existing Lakes and
Waterways Development Authority
(LAWDA) responsible for the mainte-
nance of the lake to ascertain within one
week details of families exclusively
dependent on vegetable cultivation
within the lake and rehabilitate them by
providing avenues for gainful employ-
ment including agriculture and to
undertake effective steps for simultane-
ous cessation of all vegetable cultivation
over the next three months; to issue
notices asking commercial establish-
ments to instal technically suitable and
environment-friendly arrangements
within three months for treatment of
sewage and sullage within their premis-
es without releasing them into the Dal
or any nallah that flows into the Dal or
any other lake and seven-day notices to
houseboats for removing illegal con-
structions.
The Court made it clear that it would
evoke the “polluter pays” principle: a
polluting unit shall have to shut down
its operations and deposit a penalty of a
minimum of `50,000 with LAWDA,
subject to enhancement upon considera-
tion of the nature and magnitude of the
violations. The Court’s other directions
include creation of general awareness,
fixing the number of houseboats that
can be ideally anchored; fitting them
with bio-digesters and clearance of
effluents in accordance with norms.
Observers are keeping their fingers
crossed about how much follow-up will
be done in view of the dismal record
earlier. Rising Kashmir, a leading
English daily of Srinagar, in an editorial
after the September 18 judgment, put it
succinctly by saying, “the keen interest
shown by J&K high court in saving the
lake is worth appreciation, especially
given the fact that successive govern-
ments have not gone beyond lip service
in restoring the pristine glory of the
world famous water body”.
ThedivisionbenchoftheJammuandKashmirHighCourtheadedbyChiefJusticeGita
Mittal(left)andincludingJusticeSanjeevKumarhasfixedatimeschedulefor
governmentauthoritiestotakenumerousstepstosavethehistoricDalLake.

Environment/ NGT/ HP Stone Crushers
HE National Green Trib-
unal (NGT), while stress-
ing the importance of pre-
serving water bodies, has
directed the Himachal
Pradesh Pollution Control
Board to shut down stone crushers situ-
ated within 100 metres of a water body
in the state. However, officials in charge
of implementation of the order are fac-
ing difficulties in its implementation,
and are all set to approach the NGT for
a clarification.
The Tribunal was dealing with a peti-
tion questioning the legality of stone
crushers operating near water bodies in
Himachal Pradesh. The petitioner was
concerned that stone crushers were
operating in a forest area very close to
the water bodies, and this would have a
negative impact on the ecology of the
surrounding area.
The stone crushers in question were
situated at a distance of less than 100
metres from nearby water bodies. They
were operating without registration and
the requisite consent to operate under
the Environment Protection Act. The
Tribunal then directed that an inspec-
tion be carried out to look into the issue.
The inspection team found that the
stone crushers were located within 100
metres of the Balyana khad (a river).
In their defence, the stone crusher
owners contended that Balyana khad
was not a perennial rivulet, and a notifi-
cation released by the environment
department of Himachal Pradesh did
not include any khads and thus their
operations were not illegal.
The Tribunal observed that the pro-
hibition on establishment of stone
crushers within 100 metres of a water
body specifically mentions rivulets of a
perennial nature. However, the notifica-
tion does not include non-perennial
water bodies. The Tribunal said that the
“importance of protection of water bod-
ies can hardly be over-emphasised” and
if a stone crusher was located close to a
water body, it would violate the princi-
ple of sustainable development and the
precautionary principle. Therefore, the
NGT held that any stone crusher in
Himachal Pradesh operating within 100
metres of a water body would be illegal
and would have to be shut down.
The bench placed the responsibility
of implementing its orders on the
Himachal Pradesh Pollution Control
Board, which has been directed to take
necessary steps to close down the stone
crushers. It has also been directed to
submit a report to the NGT within two
months. However, the Board will
approach the NGT to seek clarifications.
Officials state that they have not pre-
pared a final report as of now, and after
conducting a preliminary assessment,
around 15 to 20 stone crushers may be
closed down. There is also uncertainty
among the officials regarding the point
from which the prescribed 100 metres
should be measured.
Inordertopreservetheecology,theTribunalhasdirectedtheHimachalPradeshPollution
ControlBoardtoshutdownallstonecrushersoperatingnearwaterbodiesinthestate
By Pragya Ratna
T
Leaving No Stone Unturned
TheNGTsaidthatthe“importanceof
protectionofwaterbodiescanhardlybe
over-emphasised”andthestone
crusherswereactinginviolationofthe
principleofsustainabledevelopment.
THREAT TO ECOLOGY
Stone crushers near a J&K forest where too a
Pollution Control Board ban is in place
Representative Image; Photo: UNI

Cybercrime/ Online Abuse of Children
32 January 14, 2019
AST-PACED technological
innovation and widespread
accessibility of information
and communication technolo-
gy have transformed societies
around the world. Children,
in particular, have unprecedented access
to smartphones and other forms of elec-
tronic media which offer them unimag-
inable access to information. At the
same time, this technology provides sex-
ual predators with an anonymous and
swift medium to contact potential vic-
tims with ease, share images of sexual
abuse, exploit children online across
borders and create networks that en-
courage the commission of further
cybercrimes. While cybercrime is a glob-
al phenomenon, India has some of the
highest rates of child abuse, both online
and offline.
The home ministry has come out
with a booklet on cyber safety for tee-
nagers which addresses their increased
use of smartphones, gadgets, online
gaming, social media and fake news.
The booklet, A Handbook for Students
on Cyber Safety, also deals with cyber
bullying, cyber grooming and email
fraud. The centre has already launched a
cybercrime portal to tackle this crime.
It is children who are most vulnera-
ble to such crime. A 2016 UNICEF
report titled, “Child Online Protection in
India”, had mapped existing laws on
safeguarding children from online
exploitation, and also put forward rec-
ommendations to ensure cyber safety.
According to the report, there were 40
lakh internet users in India, and an esti-
mated 13.4 lakh Indian children use
mobile phones.
The National Crime Records Bureau
(NCRB) registered 1,540 cases of online
child abuse between 2013 and 2015 and
three percent of children who called
Childline, a helpline, in 2015 cited prob-
lems related to online abuse.
Cybercrime against children includes
child pornography, stalking, cyber bully-
ing, online child trafficking and sexual
harassment. The relevant legislation in
this regard includes the Indian Penal
Code, 1860, and Protection of Children
from Sexual Offences (POCSO) Act,
2012, as well as legal provisions as pro-
vided in the Information Technology
Act, 2000, and Immoral Trafficking
(Prevention) Act, 1956.
CHILD PORNOGRAPHY
Pornography can be found and circulat-
ed through various mediums, both
online and offline. This includes the cir-
culation of any form of media (video,
picture, sound recording) via the inter-
net through a computer, telephone,
mobile or tablet. In India, any sexual act
performed with a child, consensual or
otherwise, is a criminal offence.
Section 13 of POCSO provides for
imprisonment for a term of up to five
Intoday’swiredworld,childrenaremostvulnerabletoonlineexploitationandsexualpredators.
Sadly,Indiahasthehighestratesofchildabuse,onlineandoffline
By Shruti Bist
Anil Shakya
F
Handle with Kid Gloves

years and in case of subse-
quent conviction, for a
term up to seven years and
a fine. Section 15 provides
for punishment for storage
of child pornography for
commercial purposes with
up to three years of
imprisonment or a fine.
The Supreme Court
recently imposed a cost of `1 lakh on
internet giants such as Google, Face-
book, Yahoo, Microsoft and WhatsApp
for online child pornography.
In February 2018, the Indore cell of
MP’s cyber police arrested a man from
Dhar for being involved in a child auc-
tion pornography group.
The police, acting on information
from Interpol, said the group is named
Groupo De Leila (an auction group)
operating from Portugal.
CYBER BULLYING
Cyber bullying is intimidation, threat or
harassment using an electronic form of
contact by the use of computers, mobiles
and/or the internet. It is punishable
under Section 506 of the IPC. It pro-
vides for imprisonment for a term which
may extend to two years, a fine or both.
If the threat is to cause death or griev-
ous hurt, it can lead to imprisonment
for a term which may extend to seven
years.
According to a Microsoft study of
online bullying in 25 countries among
eight to 17-year-olds, children in India
reported the third highest online bully-
ing rate. In an Ipsos survey in 2014,
India topped the list of 254 countries for
cyber bullying.
Blue Whale Challenge and other viral
challenges such as the Choking Game
and the Cinnamon Challenge are the
most brutal form of bullying.
There have been cases of children
being trolled by classmates and becom-
ing depressed and indulging in self-
mutilation. In such cases, Section 503,
IPC, can be applied because there was a
threat to the reputation of a person.
ONLINE CHILD TRAFFICKING
Child trafficking, according to UNICEF,
is defined as “any person under 18 who
is recruited, transported, transferred,
harboured or received for the purpose
of exploitation, either within or outside
a country”. The online space can provide
an unprecedented window into observ-
ing tracking, monitoring and notifying
prospective buyers as well as identifying
targeted children. In India, the Immoral
Traffic Prevention Act, 1956, covers off-
ences related to child trafficking and can
be interpreted to cover online cases. On
August 22, 2018, the police arrested a
man for trafficking 14 children, includ-
ing minor girls, from Jharkhand.
CYBER STALKING
Section 11(iv) of the POCSO Act, 2012,
states that when a person monitors or
follows a child through the digital
media, he or she is committing sexual
harassment. However, the “monitoring”
or “following” of a person has the char-
acteristics of stalking; the addition of
“digital media” in the section also makes
it applicable for cyber stalking. It is a
cognisable and non-bailable offence.
Section 12 provides for imprisonment of
a term which may extend to three years
and a fine. There was a case in May
2017, where Ritika Sharma (name
changed), a student of a prominent
Delhi school, was stalked by a Facebook
user. A case was registered with the
Delhi police.
ONLINE SEXUAL HARASSMENT
This is a form of abuse where a child is
exposed to sexual content online fol-
lowed by text messages with a sexual
overtone. There are threats to use the
child in a sexual act and these act(s) can
be a real or fabricated depiction of the
child or his/her body. The act has to be
recorded or there may be a threat to
record it through a phone, camera, video
recorder computer or other modes.
Section 14 of POCSO specifies a punish-
ment of a prison term of up to five years
for this offence.
There should be better awareness
among parents, society and law enforce-
ment agencies to eliminate this crime.
Use parental control software: Acc-
ording to a study by McAfee, by age
16, 56 percent of teens conceal their
internet activity from their parents. But
parental control software can make
their activity much more transparent.
Avoid downloads: Before download-
ing, a software should be used to pro-
tect your personal information against
spyware and viruses.
Manage social media settings: Keep
your kids’ information locked down to
save it from predators.
Permissions: Teach your children to
always ask permission before clicking
on or downloading from unsafe sites.
Set limits on late night use: As chil-
dren gain independence, it would be
wise to set limits on late night internet
use at an early age. This can help min-
imise the chance that your child will be
contacted by a paedophile.
Establish rules: The internet has
become such an intricate part of chil-
dren’s lives. But using it is a privilege,
not a right. Establish rules for internet
use, and post them in an area
where children congregate such as
the kitchen.
KeepchildrensafeGENERATING AWARENESS
A workshop in a school on
cybercrime and safety
Dikshant international School

In the book “Politics, Religion and Judiciary in India”, which has been
published by Har-Anand Publications Pvt Ltd, DR HANS RAJ BHARDWAJ
speaks eloquently about the role of religion in India, how politics has often
interfered with religion and how the judiciary has attempted to set things right.
Born in 1937, Dr HR Bhardwaj earned several accolades during his four-
decade-long career in public life. His first brush with fame came in 1978 when
he defended Indira Gandhi, Bansi Lal and Sanjay Gandhi in the special courts
set up by the Morarji Desai government. From thereon, there was no looking
back as he worked in several capacities—as a Congress leader, MP and minister
of law and justice. He was first elected to the Rajya Sabha in 1982, and subse-
quently, received this honour on four more occasions. He also enjoys the dis-
tinction of having the second longest tenure as law minister and has served
three prime ministers—Rajiv Gandhi in 1985, PV Narasimha Rao in 1991 and
Dr Manmohan Singh in 2004. He also served as governor of Karnataka from
2009 to 2014. Excerpts from the book:
34 January 14, 2019
“The Use of Religion is a Potent
Threat to Secular Democracy”
Books/ Politics, Religion and Judiciary in India / Excerpts

India Legal 14 January 2019

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