India Legal 24 December 2018

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
December24, 2018
PERILOUS
DIRECTION?Inashockingstatement,Attorney
GeneralKKVenugopalsaidtheuseof
ConstitutionalMorality“canbevery,
verydangerous”.Consideringhe
representsthegovernment,hisdire
diagnosishasrungalarmbells.Noted
juristUpendraBaxicountersthe
argument.
Assembly Elections:
A dress rehearsal
Vijay Mallya:
Extradition riddle

ELF-SERVING, sanctimonious political punditry
was at its most brazen display on the Indian air-
waves last week. TV anchors and analysts and
print journalists tried desperately to grab at fanci-
ful analyses of the unfolding electoral scenario in
which the Congress party flipped the BJP in three states
which form a major part of the Hindi heartland and con-
tribute 65 Members of Parliament.
The observations on the political phenomenon ranged
from “Congress won by default” to “If Congress wins just
one state, it’s the end of Rahul Gandhi” to “this was not a
pro-Congress vote but an anti-BJP vote”. But there were
some serious observations in the midst of this drivel. One of
them being that these inanities were obstructing the real
narrative that some 14 crore Indians—90 percent of them
Hindu—had rejected the prevailing BJP-ism in the Hindi
heartland.
But punditry came up with a smarty-pants rationalisa-
tion for this development as well: The Congress party under
Rahul Gandhi had resorted to the deceptive electoral ploy of
playing “soft Hindutva” to woo the electorate. No, nothing
else mattered, not hundreds of thousands of farmers march-
ing in protest to Mumbai and Delhi, skyrocketing diesel and
LPG prices, the indirect tax regime sapping the core eco-
nomic vitality of small businesses, demonetisation virtually
uprooting the tertiary sector, murderous State-tolerated vig-
ilantism on the rise, the implosion of the CBI ….
“Soft Hindutva” is an oxymoron. “Hindutva” has nothing
soft about it. It is a hard, sharp, multi-edged political
weapon which finds no mention in India’s ancient Sanskrit
culture or Vedic literature. It has manifested itself in the
teachings of Veer Savarkar and MS Golwalkar, the patron
saints of the RSS and the BJP, which were excoriated by no
less a person than Sardar Vallabhbhai Patel, as extremist,
hate-filled and venomous, when he, as India’s first home
minister, banned the RSS, a right-wing Hindu organisation,
following the assassination of Mahatma Gandhi.
Hindutva is a millennial belief in which electoral politics
—winning or losing doesn’t matter to the faithful—is an
inconvenient stepping stone for the achievement of a Hindu
Rashtra, a Reich in which all those who live in India pro-
fessing different faiths must genuflect, as second class citi-
zens, to the primacy of the Sangh Parivar’s adumbration of
its theory and practice of Hinduism.
Starting with the Ram Mandir movement in the 1990s,
Hindutva practitioners like Yogi Adityanath—theirs is
essentially a political faith—have invented and added ingen-
ious weapons to their arsenal to spread fear and insecurity:
“Love jihad”, “ghar wapsi”, “gau raksha”, “urban Naxals” and
so on. If you continue to believe and practise the Hindu
faith as your parents or teachers taught it to you, without
subscribing to Hindutva dogma as preached by Golwalkar,
et al, you are a “soft Hindu”.
If you wear a sacred thread blessed by your guru, or visit
a temple for blessings from a deity you may believe in, or
smear your forehead with vermilion on an auspicious occa-
sion without subscribing to the concept of a Hindu Rashtra,
which BJP leader Jaswant Singh described as “abominable”,
you are committing the sin of practising “soft Hindutva”.
The reality is that “Hinduism”, which is a way of life
which evolved from the ancient Sanskrit civilisation, has no
unified church or episcopacy, is by its very nature “soft”.
Hindutva, by contrast, is aggressive and evangelical.
Those who posit, for example, that the BJP has re-posi-
tioned Rahul Gandhi and the Congress into ditching secu-
larism for “soft Hindutva” because he visits temples, under-
stand neither Hinduism nor secularism. Religion and secu-
larism are not incompatible. Secularism means respecting
all religions equally within a country. Gandhiji professed
himself a deeply religious Hindu but he was one of the
world’s greatest secular leaders, as was Sarvepalli
Radhakrishnan who penned the best-selling The Hindu
Way of Life.
Theocracy, conversely, is incompatible with secularism
because it advocates a religious State. So the political debate
in India is not between “Hindutva” and “soft Hindutva”. It is
between “Hindutva” and “Hinduism.” Hindutva, as
preached from the pulpits of the RSS, can never be “soft”.
Therefore, those who poke fun at “soft Hindutva” are really
taking aim at true Hinduism, which emanated and evolved
from the ruminations and poems of Vedic sages and wan-
dering minstrels, including Vivekananda and Ramanna
Maharishi, as a liberal, tolerant, secular and vibrant philoso-
phy of life and living.
Hinduism is the search for the truth and enlightenment.
Hindutva is the quest for power.
HINDUTVA—THE HARD
AND THE SOFT OF IT Inderjit Badhwar
Letter from the Editor
S
4 December 24, 2018
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

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6 December 24, 2018
14Dangerous Direction
Attorney General KK Venugopal’s diatribe against the apex court’s reliance on constitutional
morality has raised eyebrows. Legal luminary Prof Upendra Baxi cautions him
LEAD
18Still a Hot Potato
Although the Supreme Court has given the Modi government a clean chit on the Rafale deal,
the issue is unlikely to die as the Opposition will use it as ammunition for the 2019 polls
SUPREMECOURT
19Judge under a Cloud
The apex court has asked for a consolidated list of corruption charges against Justice Ram
Krishna Gautam, who was recently elevated as additional judge of the Allahabad High Court
20A Paradigm Shift
Although public opinion on the abolition of
the death penalty remains divided, some
courts are adopting a more humane
approach on this issue and the rights of
convicts on death row

| INDIA LEGAL | December 24, 2018 7
Return of the
Prodigal REGULARS
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Cover Design: ANTHONY LAWRENCE
Cover Photo: ANIL SHAKYA
Ringside............................8
Courts ...............................9
Is That Legal...................10
Delhi Durbar ...................12
Media Watch ..................49
Satire ..............................50
The Westminster Magistrates’ Court has
ruled in favour of Vijay Mallya’s extradition to
India. However, it could take some time
before he is lodged in Arthur Road Jail
46
Jumbo Woes 36
Acting on a Supreme Court
order, the Forest and Wildlife
Department of Kerala has
completed a census on the
number of captive elephants
in the state. The revelations
are far from encouraging
Will it Benefit All? 40
The hearing of the two-decade-old petition challenging the Jammu and Kashmir
Resettlement Act of 1982 raises many questions
Role of
Saviour
In the second of India Legal’s series
on significant judgments by former
chief justices, we bring you a verdict
by former CJI Dipak Misra on the
abortion right of a rape survivor
22
Kake versus Kaka
Delhi's famous Kake-Da-Hotel has sued Kaka-Ka Dhaba Pvt Ltd, a
Nashik chain, for trademark infringement before the Delhi HC
24
GLOBALTRENDS
POLITICS
SPECIAL
COURTS
FM Arun Jaitley wants a federal institution, like the GST Council, for
healthcare. Will it lead to a “one India, one health policy”?
Kedarnath
Controversy
Despite the Uttarakhand HC
dismissing a plea to ban the film,
the state government asked DMs
to decide on its screening and
seven districts promptly banned it
26
Water of
Discontent 34
The fight between Karnataka and Tamil
Nadu over the Mekedatu reservoir on the
Cauvery has reached the Supreme Court.
Karnataka has got relief as of now but the
issue remains unresolved
STATES
On Shaky Ground 44
A bleak future awaits US President Donald Trump as a US special prosecutor probes
deeper into alleged election collusion between him and his Russian counterpart
COLUMN
Tough Battle to the Finish
The recent drubbing in the assembly polls is a wake-up call for the
BJP before the 2019 polls. The Congress, too, has its task cut out
28
HEALTH
Unified Response 32

8 December 24, 2018
“
RINGSIDE
“I think...(the abrupt
resignation of Patel)
is something that all
Indians should be
concerned about
because the strength
of our institutions
is...important for our
growth, sustainable
growth and equity in
the economy.”
—Former RBI Gover-
nor Raghuram Rajan
after his successor,
Urjit Patel, resigned
“...he was handed a
massive opportuni-
ty...he refused to lis-
ten to the heartbeat
of the country...
Certain amount of
arrogance came in
...fatal for a politic-
ian....For me the best
teachers are the peo-
ple of this country.”
—Rahul Gandhi after
the recent assembly
poll results
“For 40 years Mallya
was regularly paying
interest on loans. Af-
ter entering the avia-
tion sector, he started
facing problems, and
suddenly he became
a thief? If a person
repays the interest
for 50 years, and if
he defaults once,
then suddenly every-
thing is fraud?...”
—Union minister
Nitin Gadkari
“He was a historian
of eminence with
deep insight into
processes that con-
tributed to the mak-
ing of the modern
Indian progressive
mind…. He was a
modern and secular
Indian....”
—Former Vice Presi-
dent Hamid Ansari
on the death of Mushi-
rul Hasan, former V-C
of Jamia Millia
“The Union Cabinet
has been reduced to
a mere rubber stamp
...endorsing your
decision without any
deliberation.... My
conscience does not
permit me to be a
part of a government
that has failed to ful-
fil its promises....”
—HRD minister and
RLSP chief Upendra
Kushwaha in a letter
to PM Modi
“I think we would
have had significant-
ly better outcomes,
if we had just
thought about simple
things. If you are
taking out `500 and
`1,000 notes, why
would you introduce
`2,000 notes?
—Uday Kotak, execu-
tive vice-chairman
and MD, Kotak
Mahindra Bank
“It is not a military
problem. The one
person who under-
stood it was (former
Prime Minister Atal
Bihari) Vajpayee and
his way is the only
way. We have to en-
gage and talk. We
hugely exaggerate the
role of Pakistan.”
—Former RAW chief
AS Dulat on the
Kashmir issue
“If they can’t function together, they should stop
functioning and report to the court.....Can you
ride a bicycle that has one truck tyre and other
cycle wheel? The SC would have immediately made
this a three- or five-member committee, which
would work on majority decisions.”
—Justice (retd) RM Lodha, on the power struggle between
CoA members of BCCI Vinod Rai and Diana Edulji to
The Indian Express

While hearing a plea filed
by Umadevi, widow of
writer MM Kalburgi, who had
sought an SIT probe into his
death, the Supreme Court
asked the CBI if it had come
across any “common thr-
ead” in the alleged murders
of Kalburgi and journalist
Gauri Lankesh in Karnataka,
and activists Narendra Dabh-
olkar and Govind Pansare in
Maharashtra. The Court
added that in case the CBI
established a common link
or found any evidence which
prima facie suggested so,
investigation into all the four
cases would be handed over
to it. At present, the CBI is
probing the Dabholkar mur-
der case on the directions of
the Bombay High Court and
the Supreme Court. The
Court has asked the agency
to respond to its query by
the first week of January.
Courts
—Compiled by India Legal Team
SC extends NRC
claims deadline
Dismissing a petition which
raised the question of dis-
closure of identity of rape sur-
vivors, a Supreme Court bench
of Justices MB Lokur (right)
and Deepak Gupta (far right)
laid down some guidelines for
the media to follow while rep-
orting sexual assault crimes.
The bench asked the print, ele-
ctronic and social media to
avoid publishing the names of
dead rape victims. It added that the victim’s
identity should not be revealed even with the
consent of the next of kin unless a sessions
judge decided that circumstances justifying
the disclosure existed. In relation to sex
crimes involving children, the bench said the
media should avoid sensationalism while
reporting such crimes, to avoid damage to
its credibility. The bench also directed the
media to refrain from talking to rape sur-
vivors because it forced the victim to relive
the trauma he/she had gone through. The
Court said that FIRs relating to rape and re-
lated crimes and offences under the POCSO
Act should not be in the public domain as
they contain details of the survivor or victim.
While disposing of a petition
filed by a man who was den-
ied a domicile certificate by the
state government, a Meghalaya
High Court judge said India should
have been declared a Hindu nation
at the time of Partition just like
Pakistan was declared an Islamic
nation. Justice SR Sen, the lone
judge in the Meghalaya High Court,
also said that “nobody should try
to make India another Islamic
country....I am confi-
dent that only this
government under
Narendra Modi Ji
will understand the
gravity, and will do
the needful as
requested
above”.
Probe common link into
alleged murders: SC tells CBI
The Supreme Court collegium has recom-
mended the names of two judges, Justice
Rajendra Menon (left) and Justice Pradeep
Nandrajog, for elevation to the Supreme
Court. Justice Menon has been serving as
the chief justice of the Delhi High Court since
August this year, after serving as the chief
justice of the Patna High Court. Justice
Nandrajog has been heading the
Rajasthan High Court since March
2017, following a transfer from the
Delhi High Court. If their names are
cleared by the centre before the
impending retirement of Justice MB
Lokur, the working strength of the
Supreme Court will increase to 29. The
sanctioned strength is 31.
Following a request from the
Assam government, the
Supreme Court extended the last
date for filing claims and object-
ions related to the draft National
Register of Citizens (NRC) to
December 31. The earlier deadline
was December 15. A bench of
Chief Justice Ranjan Gogoi and
Justice RF Nariman said the exten-
sion was necessary “keeping in
mind the rate at which the claims
are being received”. The Court
also said that the process of verifi-
cation of claims and objections,
which was scheduled to start from
February 1, will stand postponed
to February 15.
Two judges recommended for elevation to SC
Media should not identify sexual
assault survivors, says SC
Meghalaya HC bats
for Hindu nation

ISTHAT
What is cyber bullying and
under which legal provision can
it be tackled?
Cyber bullying is a form of bully-
ing which is done with the aid of
electronic technology. The acts
include sending intimidating
emails or messages to some-
one, spreading rumours about
someone or sending embarrass-
ing pictures, etc. An act of bully-
ing in the cyber space is similar
to bullying in the real world. It is
covered under the Indian Penal
Code as well as the Information
Technology Act, 2000. Section
66A deals with cyber bullying,
and makes it punishable with
imprisonment of up to three
years and a fine.
Is it mandatory for a police officer to wear
visible and legible identification (name, rank
or badge number) while arresting someone?
According to Section 41B of the Code of
Criminal Procedure, it is mandatory for the
police officer to bear an accurate, visible and
clear identification of his name while arrest-
ing someone. This helps in easily identifying
the concerned officer at the time of probe.
Need for Identification
—Compiled by Deepankar Malviya
Online Harassment is Punishable
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Are SMS/WhatsApp messages admissi-
ble as evidence in a court of law?
An SMS/WhatsApp message can be
admissible in a court of law under
Section 65B of the Indian Evidence Act.
The Act states that any electronic record
which can be printed on a paper, stored,
recorded or copied in optical or magnet-
ic media produced by a computer shall
be deemed to be a docu-
ment. However, before it is
admissible, it has to fulfil
four conditions:
The computer (includ-
ing mobile phones) that
produced it is in regular
use at the time of pro-
duction of the said
message.
The kind of infor-
mation contained in
the message was
regularly fed in the computer in the ordi-
nary course of activity.
The electronic device should have
been working properly at the time of
creation of the message.
The copy should be a reproduction of
the original message.
Question of Evidence
?
What are the laws for adoption in India?
The process of adoption in India is governed
by two different laws—The Hindu Adoptions
and Maintenance Act and The Guardians and
Wards Act.
The Hindu Adoption and Maintenance Act
governs the Hindus, Buddhists, Jains and
Sikhs. According to the Act, any person can
adopt a child subject to the follow-
ing conditions:
If a couple adopts a male child,
it should be done with the consent
of the spouse and there should not
be a male successor in the next
three generations at the time of
adoption.
If a couple adopts a female child,
it should be done with the consent
of the spouse and there should not
be a daughter or son’s daughter at
the time of adoption.
If a Hindu male adopts a female child, the-
re should be an age difference of 21 years.
If a Hindu female adopts a male child,
there should be an age gap of 21 years.
The Guardians and Wards Act allows
Muslims, Christians, Parsis and Jews to
adopt a child and take over guardianship
only till the time the child attains 21 years of
age, after which the child is considered to be
independent of the guardian.
10 December 24, 2018
Adopting a Child

An inside track of
happenings in Lutyens’ Delhi
The heads of four crucial agencies
fell vacant or will fall vacant in the
near future, with huge implications
for India’s financial stability and its
intelligence gathering capabilities.
The vacancy in the RBI, prompted
by Governor Urjit Patel’s sudden
resignation, has been quickly filled
by Shaktikanta Das (right), a career
bureaucrat who publicly backed
demonetisation as secretary in the
Department of Economic Affairs
and is unlikely to resist pressure
from the government on certain
policies, like Patel did, preferring to quit
rather than give in.
The three other heads are all to do
with intelligence agencies—the CBI,
which is looking for a chief after its cur-
rent boss and number two both fought
openly like cats and are being grilled in
the Supreme Court. Then there is the
choice of head of India’s external intelli-
gence agency, Research and Analysis
Wing (RAW), to replace current incum-
bent AK Dhasmana (centre), who
retires on December 31, as does the
head of the Intelligence Bureau (IB),
Rajiv Jain (right). The buzz is that the
new director of IB could be Arvind Ku-
mar, currently special director and an
expert on Kashmir with specialisation in
counter-terrorism, while Dhasmana may
be given an extension.
HEADS AND TAILS
Narendra Modi and Amit Shah will
officially share the blame for last
week’s embarrassing loss in the Hindi
heartland to the Congress but the
leader who has lost the most—face,
stature and star power—is UP Chief
Minister Yogi Adityanath. He was
handpicked by the Modi-Shah duo,
prompted by the RSS, to be the BJP’s
star campaigner in the states that
went to the polls, especially Madhya
Pradesh, Chhattisgarh and Rajasthan,
where he held a record 75 rallies,
more than the prime minister and Shah
combined.
The idea behind promoting Yogi was
to fuel the hardcore Hindutva agenda,
something that comes naturally to the
rabble rousing Yogi.
At every rally, his language was
coarse and divisive, invoking Ram
Rajya. “Keep your Ali, Bajrang Bali is
enough for us,” was one of his favourite
opening lines during his hate-filled
speeches. His constant focus through-
out the campaign was on construction
of a Ram temple, while attacking the
Congress for terrorism and for support-
ing Pakistan. His key slogan was “Joh
Ram ka nahin, woh hamare kisi kaam ka
nahin (He who is not with Ram/That
which is not Ram, is of no use to us).”
He also spoke of changing the names
of Faizabad and Allahabad to Ayodhya
and Prayagraj, respectively, to uphold
“Vedic traditions of India”, adding:
“While taking these steps, we did not
get scared like the Congress that we
would lose a vote bank.”
Like Modi and Shah, he failed to
see that Hindutva and the Ram temple
were not issues in these elections,
but agrarian distress and joblessness
were. After the poll debacle, clearly,
his days as Modi’s favourite chief
minister and star campaigner are over.
FALLOFAYOGI

Delhi
Durbar
THE LUCKY CHARM
Was it just a mere coincidence that the man
deputed by the CBI to represent the agency
in two high-profile extradition cases, one in
Dubai, the other a week later in London,
ended in rulings in the Indian government’s
favour. The man is CBI Joint Director A Sai
Manohar, who had flown to Dubai when the
Indian embassy sent word that Christian
Michel, the AgustaWestland middleman, was
likely to be extradited. He flew there on a
Bombardier jet which is owned by the
Aviation Research Centre, another clandes-
tine intelligence agency, and brought Michel
back with him.
A few days later, he flew to London to
attend the extradition trial of embattled liquor
baron Vijay Mallya. He was not originally
assigned to the Mallya hearings—that role
went to Special Director Rakesh Asthana,
who had been attending the trial in London’s
magistrate court till the government divested
him of powers after he and CBI Director Alok
Verma engaged in an open feud. Manohar
was then sent in his place, for the crucial hea-
ring where the court ruled that Mallya would
be extradited. Coincidence or lucky charm?
PILOT AT MACH-1
There’s little doubt that the Congress’s
Rajasthan campaign created the upturn for
the party largely because of Sachin Pilot’s
cockpit dexterity. What has impressed
Congress bigwigs is not just that he has for
the first time solidly consolidated the Gujjar
vote, which can influence some 14 parlia-
mentary seats in the 2019 elections, but also
the pace of his non-stop electioneering. Of
the Congress’s 600 meetings in the state,
Pilot alone conducted 230 rallies. In compari-
son, the party’s old warhorse, Ashok Gehlot,
managed 100, while all the BJP bigshots,
including Yogi Adityanath and the PM, man-
aged only 223.
The actual wedding was on
December 12 in Mumbai but even
before that, doting dad Mukesh
Ambani spent approximately
$100 million on just the pre-wed-
ding ceremonies for daughter Isha.
The American media has been
awestruck by the money spent—
singer Beyonce who charges $4
million per show was flown in
from New York
on a private jet
along with hair-
dresser, make-
up artist and
bodyguards
just for one
night’s perform-
ance in Udaipur
and flown back
the next day.
She also,
reportedly, charged well over her
standard rate.
Similarly, the Ambanis also flew
in former presidential contender
Hillary Clinton and ex-Secretary of
State John Kerry by private jet.
All other guests were also
flown to Udaipur on a fleet of pri-
vate aircraft as were the guests
who attended two other lavish pre-
wedding bashes in Goa and Lake
Como in Italy.
MONEY NO OBJECT
The Modi govern-
ment, enthused by
the propaganda value
of the surgical strikes
carried out by the
Army across the bor-
der, now wants a spe-
cial force dedicated
solely for this, despite
warnings and misgivings by securi-
ty experts. The new force, under
the direction of National Security
Advisor Ajit Doval, will be made up
of the most elite and outstanding
personnel from various special
forces, the Army, the Indian Navy’s
Marcos (Marine Commandos), and
the Garuds of the Indian Air Force,
with a sprinkling from the NSG.
The problem is that the empha-
sis is on the best trained and
most experienced in covert action,
means that these forces will be
denuded of their best officers and
personnel and suffer a leadership
vacuum. The other issue is that this
special strike force will be under
the command of the Army chief,
rather than an overall commander.
Rivalry between the Army, Navy
and Air Force has so far stymied
the appointment of a permanent
chairman of chief of staff.
The bigger problem, of course,
is that having a special surgical
strike force means that the
temptation to use it for political
gain or propaganda value is
extremely high, dangerously raising
the stakes as far as the two
nuclear-armed neighbours are
concerned.
STRIKE
FARCE

POLITICALLY
MOTIVATED?
Attorney General KK
Venugopal criticised the
SC for giving itself
enormous powers
Lead/ Constitutional Morality/Column Prof Upendra Baxi
Inasurprisingattackon“constitutionalmorality”,AttorneyGeneralKKVenugopalsaiditsuse“canbe
very,verydangerous”.DoesthisviewquestionthebasicstructureoftheConstitution?
A Dangerous
Precedent?
TTORNEY General (AG)
KK Venugopal, speaking
at the Second J Dada-
chanji Memorial Debate,
had said that the “use of
constitutional morality
can be very, very dangerous and we can’t
be sure where it will lead us to. I hope
constitutional morality dies”. He went
on to say that “if constitutional morality
still breathes, first Prime Minister Jawa-
harlal Nehru’s fear that the Supreme
Court will become the third chamber of
Parliament might come true”. His attack
on the very concept of constitutional
morality is unprecedented and so also
his dire forebodings of constitutional
endangerment. This essay, gener-
ously invited by India Legal, may
be read alongside what I had to
say in the centerpiece in The
Indian Express.
A

tantrums against any minority…can
prescribe any unreasonable modality
and thereby sterilise the grandiloquent
mandate”.
Further, the Directive Principles of
State Policy articulate solemn human
rights obligations, which are declared
paramount in making of laws and gover-
nance of the nation. And now (since
1976) Part IV-A (Article 51-A) details
the fundamental duties of all citizens. To
crown it all, the Preamble stipulates the
values integral to the constitutionally
desired social order; the elaborate con-
stitutional text merely constitutes one
massive footnote to the Preamble.
True, only once did Babasaheb Am-
bedkar in Constituent Assembly debates
express a concern regarding diffusion of
“constitutional morality”, acknowledged
all round as a “necessity for the peaceful
working of the democratic constitution”.
However, two things ought to be recog-
nised. One is “the form of administra-
tion must be appropriate to and in the
same sense as the form of the Consti-
tution. The other is that it is perfectly
possible to pervert the Constitution,
without changing its form by merely
changing its form of administration
and to make it inconsistent and opposed
to the spirit of the Constitution”. It is
all the more important to recall that
“constitutional morality is not a natural
sentiment. It has to be cultivated.… Our
people have yet to learn it. Democracy
in India is only a top dressing on an
Indian soil which is essentially
undemocratic”.
P
ratap Bhanu Mehta valuably
reads Ambedkar as suggesting
three distinctions: morality of
the Constitution, conventions and pro-
tocols of discretionary power when the
constitutional text is silent and growth
of belief (both obedience and loyalty) to
constitutionalism by the rulers and the
ruled. Ambedkar fondly quoted Grote
(the Greek historian), who felt that
constitutional morality “is an indispen-
sable condition of government at once
free and peaceable; since
even any powerful and obsti-
nate minority may render
the working of a free institu-
tion impracticable without
being strong enough to con-
quer the ascendancy for
themselves”. The Court has
developed the concept large-
ly in this third sense with
the help of able lawyers.
Naz provides one critical
component—it holds that
moral “indignation, howso-
ever strong, is not a valid
basis for overriding individ-
uals’ fundamental rights of
dignity and privacy. In our
scheme of things, constitu-
tional morality must out-
weigh the argument of pub-
lic morality, even if it be the
majoritarian view”.
Is the hermeneutic adju-
dicatory leadership concept
“dangerous”? Is it like “pub-
lic policy”, often described
The learned AG is sadly mistaken to
think that the concept of constitutional
morality is new; in fact, it is as old as
the Constitution of India. The adoption
of Fundamental Rights (Part III of the
Constitution) itself testified to the ethi-
cal idea of limited government. And
even when Parliament by law may legis-
late within reasonable limits, the final
curtain on any controversy has to be
rung by the Supreme Court. Every per-
son has a fundamental right under
Article 32 to constitutional remedies
and accordingly, it is the judicial pro-
vince and function to determine the rea-
sonableness of restrictions. Of course,
judicial self-restraint deferring to the
will and wisdom of democratically com-
posed legislatures is an apt posture but
(as Justices AP Shah and S Muralidhar
said in Naz) when “constitutionally
entrenched human rights” are entailed,
“considerably less deference to the legis-
lature” has to be shown “than would
otherwise be the case”.
Justice Krishna Iyer inimitably said
in Maneka Gandhi: “The compulsion of
constitutional humanism and the
assumption of full faith in life and liber-
ty”, is not “so futile or fragmentary that
any transient legislative majority in
Judicialself-restraintdeferringtothewillof
democraticallycomposedlegislaturesisan
aptposturebut(asJusticesAPShah(left)
andSMuralidharsaidinNaz)when“consti-
tutionallyentrenchedhumanrights”are
entailed,“considerablylessdeferencetothe
legislature”hastobeshown.

as an unruly horse by many a common
law judge? Not so because constitutional
morality cannot be an individual jus-
tice’s patrimony, predilection or predis-
position. It has to be a disciplined and
collegiate interpretive concept. The
Court has precisely tried to evolve such
a concept and it has two dimensions.
T
he first concerns what Justices
may do in performing the tasks
of interpretation (call this an
internal aspect). This comes into play in
re-crafting approaches to constitutional
construction.
The second concerns the external
dimension—what Ambedkar named
“the diffusion of constitutional morality”
among those who govern and those who
are governed. If one thinks of a cache of
decisions in late 2018 when Chief
Justice Dipak Misra was to retire, the
impression of judicial adventurism
which is dangerous to social and politi-
cal order can plausibly be created. But
a systematic exploration of the judicial
evolution of the concept dispels
this view.
The internal aspect comes to the
foreground with and since the Delhi
High Court Naz decision in 2007. It is
presumably excites the ire of the AG is
the second aspect. In Manoj, the Court
(as per Chief Justice Dipak Misra) said
that “the noble objectives of Justice,
Liberty, Equality and Fraternity can only
be achieved through the commitment
and loyalty of the organs of the State to
the principle of constitutional morality”.
Justice DY Chandrachud in Delhi, Lt
Governor portrayed constitutional mo-
rality as a “governing ideal” that “high-
lights the need to preserve the trust of
the people in institutions of democracy,
just social cooperation, and coordina-
tion of pursuits of constitutional aspira-
tions that cannot be achieved single-
handedly”. It “encompasses not just the
carried forward in Manoj Narula
(2014) and later in the cache of deci-
sions in 2018. These decisions clearly
prescribe adjudicatory ways to construe
constitutional provisions, respecting at
one and the same time the fundamental
rights of individuals and the tasks of
constitutional good governance. What
FUELLING OBJECTIONS
The SC had relied on constitutional morality
in its Sabarimala judgment
Lead/ Constitutional Morality/Column/ Prof Upendra Baxi
JusticeKrishnaIyersaidinManekaGandhi:“Thecom-
pulsionofconstitutionalhumanismandtheassump-
tionoffullfaithinlifeandliberty”,isnot“sofutile...
thatanytransientlegislativemajorityintantrums
againstanyminority…can...sterilisethe...mandate.”

forms and procedures of the Consti-
tution”, but provides an “enabling frame-
work that allows a society the possibili-
ties of self-renewal”.
Chief Justice Misra in Navtej men-
tions as the “overarching ideals of indi-
vidual autonomy and liberty, equality for
all sans discrimination of any kind,
recognition of identity with dignity and
privacy of human beings as basis for
identifying violent social exclusion, dis-
crimination and alienation” which is
violative of constitutional morality,
although tolerated, or even approved by
civil society.
What can be found “dangerous” in
such enunciations except that it disturbs
dogmas that preach discrimination and
exclusion as public virtues? Was Pro-
fessor Ronald Dworkin being dangerous
when he felicitously proposed a “moral
reading of the Constitution”? What are
the other ways of reading where “funda-
mental rights” have systemically “eluded
certain sections of our society who are
still living in the bondage of dogmatic
social norms, prejudiced notions, rigid
stereotypes, parochial mindset and big-
oted perceptions”?
The learned AG seems worried that
the Court may begin to act as a “third
chamber” if constitutional morality is
deployed as a test; but should it, by the
same token, leave everything, including
the protection of fundamental rights, to
the legislative-executive combine?
T
ake the recent situation brewing
over divesting self-help groups of
the responsibility of preparing
mid-day meals for government schools.
One result has been that the Akhsya
Patra Foundation (an NGO of Hare
Krishna Consciousness—ISKCON) is
running very hygienic centralised food
kitchens in many states. However, their
own religious beliefs and dietary prac-
tices have resulted in a change of the
menu so as to exclude eggs, garlic and
onions from the prepared food. Many
school children, parents, teachers
unions, central government depart-
ments and leading scientific agencies
have protested this dietary exclusion
saying it deprived the children of
minimal nutrition. And yet the divest-
ment persists.
While there is no right to have a gov-
ernment contract, is it still a violation
of the right to essential religious prac-
tice to enforce a choice of menu that in-
cludes these items? If so, does this am-
ount to a discriminatory practice mili-
tating against religious groups for gov-
ernmental contracts? Does the judicially
created right to food under Article 21
create also a right to tasty food or will
any diet do? Why cannot bland food still
be made nutritious? Should sattvic
aahaar (spiritually sanctioned food)
always be held nutritionally superior to
the well-nourished constitutional
vichar (thought)?
Courts are constitutionally mandated
to adjudicate matters which raise com-
peting contentions regarding core
human rights. Constitutional morality
contains a set of goals and methods by
which to address these conflicts. The
apex court has never said that all public
policy always offends constitutional
morality, but only that the courts must
choose the latter when the two are in
visible conflict.
The dialectic between public morali-
ty and constitutional morality serves
well the promotion of constitutional
good governance and the production of
constitutionally sincere citizens.
I hope that my good friend Venu
finds ample scope for re-examination
of his current expostulations and
exhortations.
—The author is an international law
scholar, an acclaimed teacher and a
well-known writer
JusticeDYChandrachudinDelhi,Lt
Governorportrayedconstitutionalmorali-
tyasa“governingideal”that“highlights
theneedtopreservethetrustofthepeo-
pleininstitutionsofdemocracy...”.
UNI

Supreme Court/ Rafale Verdict
ATTLING a slew of cor-
ruption charges and crony
capitalism and with its
humiliating exit in the
recent assembly polls still
fresh in the mind, the
BJP got a lifeline from the Supreme
Court when the latter dismissed several
petitions seeking a Court-monitored
probe into the Rafale deal with the
French government.
A three-judge bench of the Supreme
Court led by Chief Justice of India
Ranjan Gogoi said in its order: “Our
country can’t afford to be unprepared in
matters of fighter aircrafts. We can’t go
into the wisdom of purchasing 36 air-
crafts in place of over 100 aircrafts
under the last deal…we don’t even need
to go into pricing. The decision-making
process cannot be reviewed judicially.
We do not see any commercial favour-
itism in choosing a partner.”
The bench had barely finished pro-
nouncing the verdict than the BJP
pounced on the Congress, especially
party president Rahul Gandhi, from
whom it sought an apology. BJP presi-
dent Amit Shah said in a tweet: “Truth
always triumphs! Court’s judgment on
the Rafale deal exposes the campaign of
misinformation spearheaded by
Congress president for political gains.
The court didn't find anything wrong
with the process, nor did it find any
commercial favouritism in the deal.”
However, the Congress said that the
court ruling is “not a setback at all”.
“The verdict of the Supreme Court is a
validation of what the Congress party
stated months ago that the Supreme
Court is not the forum to decide such
sensitive defence contracts,” party
spokesperson Randeep Surjewala said.
“If they have nothing to hide, I challenge
Modiji and his government to submit to
a JPC probe which will question and go
into the corruption in the defence deal.”
Congress leader Jyotiraditya Scindia
also felt the apex court order was not a
setback as the Rafale deal remained an
issue in the people’s court and the party
would continue to raise it in Parliament.
Whether it retains its potency as an
election issue remains to be seen, but it
will surely be tested as it has been the
Opposition’s main political weapon.
It was in November last year, nearly
two years after then French President
Francois Hollande signed the deal with
Modi, that the Congress first felt some-
thing was fishy in the Rafale deal.
Gandhi talked about a “huge scam that
was brewing”. In Parliament, the ruling
benches responded by mocking him,
using their favourite epithets. But
Gandhi kept up the pressure and even
went to the extent of claiming that the
BJP was not allowing Parliament to run
only to prevent him from speaking on
the deal. “If I am allowed to speak there
will be an earthquake,” he once claimed.
He had even gone to the extent of call-
ing Modi a thief at a rally in Dungarpur,
Rajasthan. “Gali gali mein shor hai,
Hindustan ka chowkidar chor hai
(There is noise everywhere, the country’s
guard is a thief),” he had alleged.
He took the battle outside Parlia-
ment too and some of his antagonists
even grudgingly conceded that his unre-
lenting attacks on the prime minister
with regard to Rafale, demonetisation
and the escape of Vijay Mallya, Nirav
Modi and Mehul Choksi in his numer-
ous rallies struck a chord with the vot-
ers. His campaign obviously paid rich
dividends in the Hindi heartland as the
recent assembly poll results showed.
With the Supreme Court verdict
on Rafale, the matter should ordinarily
be allowed to rest. But if the conduct
of leaders on both sides in Parliament,
including stalling, is anything to go
by, Rafale will remain a political hot
potato in May 2019 and even beyond.
Still a Hot Potato
Theapexcourtverdictonthedefencedealgivesabreather
tothebeleagueredgovernment,buttheOppositionissureto
useitasammunitioninthe2019polls
By India Legal Bureau
B
NOTHING FISHY
The apex court verdict has given a clean chit
to the government on the Rafale deal
UNI

Supreme Court/ Corruption Charges Against Judge
BENCH of the Supreme
Court comprising
Justices AK Sikri and
Abdul Nazeer has asked
for a list of allegations
against Justice Ram
Krishna Gautam, a recently elevated
additional judge of the Allahabad High
Court, against whom corruption charges
were levied in a Special Leave Petition
(SLP). The SLP was filed by the
Progressive Lawyers Association, an
NGO based in Meerut.
Justice Gautam was appointed as a
civil judge in 1985 and thereafter pro-
moted to the Higher Judicial Service
in 2001. In 2014, he was elevated as
district and sessions judge and on
November 22 as additional judge in
Allahabad.
The petition was filed in 2015 when
Justice Gautam was serving as district
and sessions judge in Meerut. This is
when the complaint came before the
High Court, alleging corruption and
misconduct by him. The complaint was
filed before then chief justice of the
High Court DY Chandrachud. The peti-
tion alleged that the judge was also sec-
retary of the Meerut Bar Association
and that he was part of an organised
network which received benefits for
making an order of acquittal in favour
of those alleged to have committed
crimes. It also highlighted his associa-
tion with people with a criminal back-
ground and against whom cases were
pending before courts.
One of the instances of collusion was
when Justice Gautam attended the
birthday party of the son of an accused
against whom a kidnapping case was
pending before him. This incident
was widely reported in the media with
photos of the party. Chief Justice Chan-
drachud in an order dated April 26,
2016, directed vigilance to conduct a
discreet inquiry.
However, Justice Chandrachud was
elevated to the Supreme Court and the
petition was dismissed by a division
bench of the High Court.
The matter then came up before the
Supreme Court. In the meantime, the
oath-taking ceremony was scheduled to
be held and on that day, Vikas Singh
appearing on behalf of the petitioner,
mentioned the case before Chief Justice
Ranjan Gogoi who listed the matter
before a bench headed by Justice Madan
Lokur. Since Justice Lokur was part of
the Collegium which recommended the
elevation of Justice Gautam as an addi-
tional judge of the High Court of Alla-
habad, he recused himself from hearing
the matter. Finally, it was listed before a
bench headed by Justice Sikri.
There have been many instances in
lower courts when judges have been dis-
missed because of corruption. In
Telangana, within a month, three judges
were arrested by the Anti-Corruption
Bureau (ACB). One of them was Justice
Radhakrishna Murthy who was a metro-
politan sessions judge in Hyderabad’s
Nampalli district. The ACB arrested him
for taking a bribe from an engineering
student whose case was pending before
his court. The other judge was M Gan-
dhi of the Labour Court. The ACB rec-
overed gold and silver from his house.
The third judge was S Madhu who was
a junior civil judge in Jagtial district of
Telangana. He was accused of taking
bribes from persons involved in
criminal cases.
In 1991, the Supreme Court pro-
nounced a landmark judgment in K.
Veeraswami vs. Union of India by virtue
of which judges of high courts and the
Supreme Court can be tried under the
Prevention of Corruption Act. In this
case, Justice K Veeraswami, a judge of
Madras High Court was accused of pos-
sessing an income disproportionate to
his known sources of income.
Thereafter, the CBI filed a case
against him under this Act. Justice
Veeraswami filed a petition before the
Court for quashing the charges. How-
ever, the Court dismissed the plea and
referred the matter to the Supreme
Court. The Supreme Court stated that
the term public servant under Section
21 of the Prevention of Corruption Act
would include a judge of the High Court
and the Supreme Court, and he could be
prosecuted for criminal misconduct.
Judge under a Cloud
Theapexcourthasaskedforaconsolidatedlistof
allegationsagainstJusticeRamKrishnaGautamwhowas
elevatedasadditionaljudgeoftheAllahabadHighCourt
By Shaheen Parween
A
ThepetitionallegedthatJusticeRam
KrishnaGautamwaspartofanorganised
networkwhichreceivedbenefitsfor
makinganorderofacquittalinfavourof
thoseallegedtohavecommittedcrimes.

Supreme Court/ Death Row Inmates
MONG the last judg-
ments that Justice
Kurien Joseph delivered
before his retirement last
month was one that com-
muted the death sen-
tence of a murder accused to life
imprisonment. In a minority judgment
delivered on November 28, Justice
Joseph noted that it was high time the
imposition of death as a punishment,
however heinous the crime, be
reviewed. The two other judges on the
bench agreed with him in commuting
the sentence to life imprisonment, but
differed on the issue of the constitution-
ality of capital punishment.
Public opinion in the country on the
abolition of the death penalty remains
sharply divided but some recent judg-
ments of the Supreme Court and High
Courts have tended to take a more
humane view of not just the issue of
capital punishment but even issues
relating to convicts on death row.
Courts are increasingly attempting to
usher in reforms and are prodding the
government to review some archaic laws
dating back to the British era.
The Punjab Jail Manual, for ins-
tance, specifies that “every prisoner con-
demned to death is to be confined in a
cell apart from all other prisoners, and
is to be placed by day and by night
under the charge of a special guard. No
person can communicate with him
without the authority of the
Superintendent. The prisoner con-
demned to death is only permitted to
occupy the courtyard of his cell for half
an hour each morning and evening”.
Taking cognisance of the provision, a
division bench of the Punjab and
Haryana High Court had earlier this
month abolished the practice of keeping
death row inmates in solitary confine-
ment in Haryana jails. The High Court
said that the rule was without authority
of law and amounted to additional pun-
ishment. In its order, the Court called
the provision “anarchic, cruel and
insensitive”, reflective of “a colonial
mindset”, and violative of Articles 20 (2)
Scaling Down Sentences
Recentcourtjudgmentshavetendedtotakeamorehumaneviewofnotjusttheissueofcapital
punishmentbutevenissuesrelatingtoconvictswaitingondeathrow
By Vipin Pubby in Chandigarh
A
SWANSONG
Justice Kurien Joseph revived the death
penalty debate in one of his last judgments
Anil Shakya

and 21 of the Constitution.
In a 111-page judgment, the Court
said the practice “amounts to torture
and is violative of a person’s basic
human rights”.
The bench comprising Justices Rajiv
Sharma and Gurvinder Singh Gill also
said the “convict shall not be segregat-
ed/isolated till the sentence of death has
become final, conclusive and indefeasi-
ble which cannot be annulled or voided
by any judicial process. The period to
keep a convict sentenced to death in
segregation/isolation should be for the
shortest possible time, i.e. 2-3 days”.
The order came as part of a judg-
ment commuting the death sentence of
three persons convicted by a Mahender-
garh court for the rape and murder of a
nine-year-old in 2014 to a mandatory
20-year term without remissions.
The court order for “abolishing” the
rule is specific to the “practice” adopted
by jail authorities in Haryana. However,
the bench did not pass any order to re-
move the provision from the Punjab Jail
Manual, which has been adopted by
Haryana. Removal of the provision will
require the Punjab government to make
amendments to the Jail Manual, or the
court, acting on a legal challenge, to
quash the provision.
The division bench passed the ver-
dict in response to appeals filed by three
convicts against the death sentence
awarded to them and the murder refer-
ence sent by the trial court for confir-
mation by the High Court. The advo-
cates representing them also pointed
out that the convicts had been sent to
solitary confinement immediately after
being sentenced to death.
Last month, Justice Joseph along
with Justices AM Khanwilkar and DY
Chandrachud took up for review a case
concerning capital punishment. The
review petition related to a case wherein
the special leave petition filed against
the imposition of capital punishment
was dismissed in limine by a bench of
the Supreme Court in 2006.
The bench had dismissed the case
without hearing it. Under the norm, the
court need not give any justification for
not hearing a case as it is assumed that
it has made up its mind before the start
of hearings. The three-judge bench
deciding to reopen and review the ear-
lier decision of the Court in such a case
was perhaps unprecedented.
E
arlier in 2014, a Supreme Court
bench of then Chief Justice of
India P Sathasivam and Justices
RM Lodha, HL Dattu and Sudhansu
Jyoti Mukhopadhaya, had commuted
the death penalty of 1993 Delhi bomb
blast convict Devender Pal Singh
Bhullar to life imprisonment.
The bench said that because of the
“unexplained/inordinate delay” of
eight years in disposing of his mercy
petition and on the ground of Bhullar’s
“insanity”, it was allowing the curative
petition to commute his death sentence
to life in prison. Bhullar was suffering
from severe depression with psychotic
features, as per medical reports.
Significantly, Justice Sathasivam had
also presided over the bench in the
Shatrughan Chauhan case in January
2014, and the commutation of the death
penalty for Rajiv Gandhi’s assassins ear-
lier that year.
In the former case, while commuting
the death sentence imposed on the
petitioners to imprisonment for life, the
Supreme Court had validated the estab-
lished principle that “unexplained/
unreasonable/inordinate delay in dis-
posal of mercy petition is one of the
supervening circumstances for commu-
tation of death sentence to life impris-
onment”. The Supreme Court had fur-
ther observed that “insanity/mental
illness/schizophrenia is also one of
the supervening circumstances for
commutation of death sentence to
life imprisonment”.
Citing that judgment in the Bhullar
case, the Supreme Court had said: “We
deem it fit to commute the death sen-
tence imposed on Devender Pal Singh
Bhullar to life imprisonment both on
the ground of unexplained/inordinate
delay of 8 years in disposal of mercy
petition and on the ground of insanity
of the accused.”
A LONG WAIT TILL INSANITY
The mercy petition of 1993 Delhi bomb blast
case convict Devender Pal Singh Bhullar was
pending for eight years
In2014,anSCbenchledbythenCJI
PSathasivam(above)hadreaffirmedthat
inordinatedelayindisposalofamercy
petitionisvalidgroundforcommutation
ofdeathsentencetolifeimprisonment.
Anil Shakya

Special/ Former CJI Dipak Misra’s Judgments/ MTP
ROCRASTINATION and
gross negligence by authori-
ties in deciding the plea of a
destitute woman to termi-
nate her pregnancy after she
was raped prompted a
three-judge bench of the Supreme Court
headed by Chief Justice Dipak Misra to
lay down guidelines to avoid such mis-
carriage of justice in the future. It took
two and a half months from the first con-
firmation of pregnancy for the matter to
reach the apex court, but by that time it
was too late.
The Supreme Court, while hearing
the rape survivor’s appeal, asserted:
“There is no doubt that a woman’s right
to make reproductive choices is also a
dimension of personal liberty as under-
stood under Article 21 of the Consti-
tution of India. It is important to recog-
nise that reproductive choices can be
exercised to procreate as well as to
abstain from procreating.” It emphasised
that “the element of time is extremely
significant in a case of pregnancy”, as
every single day matters, and it must be
ensured that the rights of the woman
concerned are not hindered. “The funda-
mental concepts relating to bodily inte-
FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft
hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome
ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa
chiefjusticemusttackle.IndiaLegalrunsaseriesonthesejudgments
P
CASEDETAILS
Title: (Z) vs State of Bihar and Ors
Bench: CJI Dipak Misra, Justices Amitava Roy and AM Khanwilkar
Case no: Civil Appeal no. 10463 of 2017
Date of judgment: August 17, 2017
Acting as a Saviour
By Vipin Pubby government shelter—Shanti Kutir—on
January 25, 2017. After a medical exami-
nation, it was established on February 8
that she was 13 weeks and six days preg-
nant. Partly due to her mental instability
and trauma, she expressed a desire to
terminate the pregnancy on March 4. It
was at that stage that she disclosed that
she had been raped.
There was, however, no end to her
trauma. It took another 10 days for the
shelter home authorities to take her to
Patna Medical College and Hospital for
termination of her pregnancy. Her father
and estranged husband duly signed a
consent form, but the hospital authorities
did not proceed to terminate the preg-
nancy, presumably due to the absence of
an FIR. It took another four days for an
FIR to be registered on March 18 under
Section 376 (IPC) at Mahila Police
Station, Patna.
Subsequently, the superintendent of
Shanti Kutir wrote to the superintendent
of Patna Medical College stating that the
pregnancy was already 17 weeks old and
that it needed to be terminated as her
father and husband had refused to take
her away. She was given an appointment
for April 3, but by that time her pregnan-
cy was 20 weeks old. On that ground it
was not terminated. “As the factual nar-
grity, personal autonomy and sovereignty
over her body have to be given requisite
respect while taking a decision on med-
ical termination of pregnancy,” the
Court said.
The 35-year-old rape survivor, who
was not mentioned in the judgment and
referred to as “Z”, was living on a foot-
path in Patna when she was raped by an
unidentifiable man. She was taken to a

ration would reveal, the appellant was
found to be HIV+,” the Supreme Court
noted in its final judgment.
The victim moved the Patna High
Court which, on April 10, proceeded to
determine whether medical termination
of the pregnancy could be permitted at
that stage and directed constitution of a
medical board for the purpose. However,
the state government took the stand that
the victim was being provided all neces-
sary facilities in the rehabilitation centre
and the pregnancy could not be termi-
nated because the identity of her father
had not been established. The High
Court accepted the government’s stand
on April 26 and declined permission to
abort the foetus.
The High Court’s orders were challen-
ged in the apex court, which took up the
matter on May 3 and constituted a med-
ical board. The board, in its report dated
May 9, said it was too late for medical
termination of the pregnancy and that
the procedure involved was too risky for
the life of the appellant. It further sug-
gested that the appellant should be
advised to continue therapy and routine
ante-natal care to reduce the risk of HIV
transmission to the foetus.
Vrinda Grover, counsel for the appel-
lant, pleaded that the victim was entitled
to get compensation from the State
under the public law remedy, as the auth-
orities of the State had not acted pro-
mptly in terminating the pregnancy. She
said because of their attitude the appel-
lant had been compelled to lead a life of
“terrible agony and anguish, and con-
stant state of uncertainty”. She also con-
tended that the High Court had failed to
appreciate the spirit of the Medical
Termination of Pregnancy Act and pas-
sed the order which was unsustainable in
law and projected lack of sensitivity.
C
oncluding that the approach of
the High Court was “completely
erroneous”, the apex court said
that the report submitted by the Patna
hospital had stated that termination of
the pregnancy may need major surgical
procedure which may lead to bleeding,
sepsis and anaesthesia hazards, but there
was no opinion that the termination
could not be carried out and was risky for
the life of the appellant. “There should
have been a query in this regard by the
High Court which it did not do. That
apart, the report shows that the appel-
lant, who was a writ petitioner before the
High Court, was suffering from mild
mental retardation and was on medica-
tion and her condition was stable and
she would require long term psychiatry
treatment,” observed the Court.
The Supreme Court also said that the
woman had informed the hospital that
she was a rape survivor and wanted to
abort, yet the pregnancy was not termi-
nated. “In such a circumstance, we are
obliged to hold that there has been negli-
gence in carrying out the statutory duty,
as a result of which, the appellant has
been constrained to suffer grave mental
injury.” While lamenting that her condi-
tion cannot be reversed and the situation
was unredeemable, the Court said “she
has to be compensated so that she can
live her life with dignity, and the authori-
ties of the State who were negligent
would understand that truancy has no
space in a situation of the present kind.
What was needed was promptitude.”
“Having said so, it is necessary to
state that the learned single Judge should
have been more alive to the provisions of
the Act and the necessity of consent only
of the appellant in the facts of the case.
There was no reason whatsoever to
implead the husband and father of the
appellant. We say so as it is beyond an
iota of doubt that the appellant was a
destitute, a victim of rape, and further,
she was staying in a shelter home. Ca-
lling for a medical report was justified
but to delay it further was not at all war-
ranted. It needs to be stated that High
Courts are required to be more sensitive
while dealing with matters of the present
nature,” it said.
It added that she should get a sum of
`10 lakh, keeping in mind her mental
injury as well as compensation for the
negligence by State authorities. That
apart, the Court directed that the child to
be born shall be given proper treatment
and nutrition by the State, and if any
medical aid is necessary, it shall also be
provided. If there was any future griev-
ance, liberty would be granted to the
appellant to approach the High Court
under Article 226 of the Constitution
after the birth of the child.
“It has to be borne in mind that the
element of time is extremely significant
in a case of pregnancy as every single day
matters, and therefore, hospitals should
be absolutely careful, and treating physi-
cians should be well advised to conduct
themselves with accentuated sensitivity
so that the right of a woman is not hin-
dered. The fundamental concepts relat-
ing to bodily integrity, personal autono-
my and sovereignty over her body have to
be given requisite respect while taking
the decision, and the concept of consent
by a guardian in the case of a major
should not be over emphasised,” the
Court said in its concluding remarks.
LACKING EMPATHY?
Patna Medical College and Hospital

HAT’S in a name?
Ask this question to
the owner of the
famed Kake-Da-Hotel
in Connaught Place,
New Delhi, and he
would have much to say about it. After
all, he went to court over the name of
his eatery being used by another entity.
Nothing savoury here for sure.
According to the Oxford English
Dictionary, the word “Kaka” means a
large New Zealand parrot, brownish in
colour and often kept as a pet. Closer
home, the word boasts of Punjabi ori-
gins and means a baby. Its original mea-
ning aside, the word seems to occupy a
prominent place in the food business, as
Kake-Da-Hotel went ahead and sued
Kaka-Ka Dhaba Pvt Ltd for trademark
infringement.
The former alleged that the latter’s
trademark sounded deceptively similar
to its own. After protracted litigation
spanning over four years, the case is up
for final adjudication before the Delhi
High Court. The court battle is being
fought to determine whether the
words “Kaka” or “Kake” can be monopo-
lised by any one party and given trade-
mark protection.
The plaintiff, Delhi’s iconic food out-
NOTHING
ILLEGAL
The defendant
has claimed that
its three outlets in
Nashik—Kaka-Ka
Dhaba, Kaka-Ka
Hotel and Kaka-
Ka Garden—were
started 17 years
ago
Courts/ Trademark Infringement
let, Kake-Da-Hotel, contended that it
adopted its trademark in 1931 when it
started operating a restaurant in La-
hore, Pakistan. Post-Partition, its foun-
der shifted to Delhi and opened a res-
taurant by the same name at Connaught
Place. It further contended that the
name “Kake-Da-Hotel” had acquired
enormous goodwill and reputation, and
the earliest trademark registration dates
back to December 14, 1950. It also
claimed to have registered the trade-
marks “K-D-H Kaku-Da-Hotel” and “K-
D-H Kake-Da-Hotel” in its name.
However, the defendant said that
although it had adopted the trademark
“Kaka-Ka Dhaba” in 1997, the family
has been operating a food cart by this
name since the early 1980s, and its three
outlets in Nashik—Kaka-Ka Dhaba,
Kaka-Ka Hotel and Kaka-Ka Garden—
were started 17 years ago. The Nashik-
based company’s defence hinges on the
legal argument that the word “Kaka” is
generic and no monopoly can be
claimed over it.
For now, Justice Pratibha M Singh of
the Delhi High Court has passed an
interim order, directing the defendant to
inter alia refrain from opening any new
outlet with the name “Kaka-Ka” during
the pendency of the suit. The defendant
has also been directed to maintain
complete accounts of all sales in its
three restaurants/outlets. Whether or
not the Delhi High Court will accept the
generic argument will be known only on
December 20, the next date of hearing.
However, this case has brought into
focus one of the most keenly contested
aspects of trademark law—that a trade-
mark, in order to qualify for registra-
tion, should be sufficiently distinctive
and not generic. The Trademarks Act,
1999, defines a trademark as “a mark
capable of being represented graphically
and which is capable of distinguishing
the goods or services of one person from
those of others and may include shape
of goods, their packaging and combina-
tion of colours”. The definition, although
broad, is qualified by another provision
in the Act which allows for registration
of only those marks that are sufficiently
distinctive in nature.
The distinctiveness requirement has
been a subject of legal disputes on mul-
tiple occasions, especially when manu-
facturers have sought to use common or
generic words in their trademarks.
In July 2018, the Supreme Court
dealt with this issue in Nandhini Deluxe
vs Karnataka Co-Operative Milk Pro-
ducers Federation Ltd. The respondent
company, which sold milk and milk
products under the name of “Nandini”
had argued before the Karnataka High
Court that the appellant had infringed
upon its trademark by using the decep-
tively similar name of “Nandhini” for its
chain of restaurants. The High Court
had ruled in favour of the respondent.
When the matter was taken in appeal
before the Supreme Court, it set aside
An Unsavoury Suit
ThefamousKake-Da-HotelhasfiledacaseagainstKaka-KaDhabaPvtLtdinDelhiHighCourtfor
infringingonitstrademark.Is“Kaka”toogenericanameandcanmonopolybeclaimedoverit?
By Vrinda Agarwal
W

the High Court’s order and ruled in the
appellant’s favour, saying that although
the words “Nandhini” and “Nandini”
were phonetically similar, “a bare perus-
al of the two trademarks would show
that there is hardly any similarity of the
appellant’s trademark with that of the
respondent when these trademarks are
seen in totality”. The Court further
observed that: “Nandhini/Nandini is a
generic name, representing a goddess
and a cow in Hindu mythology, and it
is not an invented or coined word of
the respondent”.
In December 2013, a similar
issue arose before the Madras
High Court in AD Padmasingh
Isaac and M/s Aachi Masala
Foods (P) Ltd vs Aachi Cargo
Channels Private Limited. This
case involved the use of the word
“Aachi” by both appellant (a
masala company) and respon-
dent (a cargo company). While
dismissing the infringement suit
filed by the appellant, the Mad-
ras High Court observed that the word
“Aachi”, which means grandmother in
Tamil, is “of general use”, and cannot be
the monopoly of any one party.
A
similar issue came up before the
Delhi High Court in 2011, in
Bhole Baba Milk Food Industries
Ltd vs Parul Food Specialities (P) Ltd.
In this case, the High Court had to adju-
dicate on whether the word “Krishna”
could be monopolised by any one party,
as the appellant and the respondent sold
dairy products under the names
“Krishna” and “Parul’s Lord Krishna”,
respectively. While dismissing the appel-
lant’s suit, the Delhi High Court
observed that the word “Krishna” was of
common origin, and thus it could not
give exclusive statutory right to the
appellant with respect to the use of the
word. The Court further said that the
appellant could only claim distinctive-
ness, if at all, in the way the word was
written in its trademark.
It will be interesting to see if the
Delhi High Court follows its earlier
precedent and that of the Supreme
Court and the Madras High Court while
deciding whether “Kaka” and “Kake”
can be used exclusively by any one party
in its trademark.
JusticePratibhaM
SinghoftheDelhi
HighCourthasasked
thedefendantnotto
openanynewoutlet
withthename
“Kaka-Ka”duringthe
pendencyofthesuit.
DEMANDING MONOPOLY
The food outlet said that its earliest trademark
registration goes back to December 14, 1950
chandnichowk.rocks

Maharaj’s statement that in future “the
state government would consider vet-
ting a movie script” before allowing
shooting in the state if it pertained to a
“sensitive issue”. In other words, for
movies to be shot in the hill state, the
government intends to make the
Central Board of Film Certification
(CBFC) redundant. That would be
unprecedented as even the Supreme
Court respects the censor board’s juris-
diction. While dismissing the Rajasthan
Karni Sena’s petition seeking a ban on
the release of Sanjay Leela Bhansali’s
period drama Padmavati, starring
Deepika Padukone and Ranveer Singh,
HOUGH the Uttarakhand
High Court, in a hearten-
ing development, had dis-
missed a PIL seeking a
ban on Kedarnath, the
state government issued
an order to do just that.
Its order to ban the film did not set a
new precedent. There’s a long list of
movies which have been banned in the
past for one reason or another.
If in 1996, Fire had to be withdrawn
under pressure from Hindu fundamen-
talists for showing a lesbian relation-
ship, the shooting of Water in Varanasi
had to be abandoned after the same
fringe groups vandalised its sets in
2005. Jodha Akbar in 2008 and
Padmavat in 2017 also faced strong
opposition, the former for showing
Jodha as Akbar’s wife and the latter for
allegedly distorting Rajput history.
Hindus alone are not in the van-
guard of such protests. The Da Vinci
Code was banned in 2006 after
Christians protested against the por-
trayal of Jesus Christ and Christianity,
while the wrath of Muslims saw
Vishwaroopam being banned for show-
ing the community in a poor light.
What is worrisome now is
Uttarakhand Tourism Minister Satpal
Courts/ Kedarnath
DespitetheUttarakhandHighCourtdismissingapleatobanthisfilm,thestategovernmentasked
districtmagistratestodecideonscreeningthemovieandsevendistrictspromptlybannedit
By Atul Chandra in Lucknow
Caught in a Whirlpool
T
RAISING A STORM
A poster of Kedarnath, a film
set in the background of the
2013 Uttarakhand floods;
(below) the state tourism
minister, Satpal Maharaj, who
has proposed vetting of movie
scripts in future

the backdrop of the flash floods of 2013
as an “effort at promoting love jihad”.
After the Uttarakhand High Court
refused to ban Kedarnath, the state gov-
ernment found a way to block its rele-
ase, in a move to appease its constitu-
ency. A committee headed by Maharaj
reviewed the film and found it to be
“completely against our beliefs and
tradition and has made fun of our emo-
tions”. The minister said: “It has all the
ingredients to disturb the law and order
situation in the state. People living in
hills are highly sensitive towards their
tradition and culture and have deep-
rooted faith in religion.”
B
ased on the committee’s report,
it was left to the district magis-
trates to decide on the screening
of the movie after assessing the situat-
ion. As if on cue, the district magistrates
of seven districts—Dehradun, Haridwar,
Pauri, Tehri, Nainital, Almora and
Udham Singh Nagar—banned the film.
The remaining six districts do not have
a cinema hall.
This committee was formed after the
High Court, on December 6, dismissed
a petition filed by one Darshan Bharti
seeking deletion of certain “objection-
able scenes” which “hurt the religious
sentiments of Hindus,
more particularly the
devotees of Lord Shiv”,
the presiding deity at the
Kedarnath shrine.
The High Court asked
AS Rawat, the senior
counsel representing the
petitioner, if it “could don
the robe of censor board
and cut certain parts of
the movie, which accord-
ing to the petitioners is
objectionable, in the exer-
cise of our powers of judi-
cial review under Article
226 of the Constitution of
India”. The senior counsel
then drew the attention
of the judges to the
Cinematograph Act of
1952 which empowers the central gov-
ernment or the local authority to susp-
end exhibition of a film if it is likely to
cause breach of peace.
In response to this, the Court pointed
out that the “power conferred under
Section 13(1) of the Cinematograph Act,
1952, is on the district magistrate, and
the exercise of such power is to be con-
fined only to the limits of his jurisdic-
tion, which is the district of which he is
the district magistrate. Any information
or representation could only have been
furnished or addressed to the district
magistrate, and exalted though the
office of the chief minister is, the law
(i.e. the Cinematograph Act, 1952) con-
fers the power of suspending exhibition
of a film, under Section 13(1) of the
Cinematograph Act, 1952, only on the
district magistrate and not on any other
superior authority”.
The Court then dismissed the peti-
tion and refused to issue any directions
to the authorities. The bench of Chief
Justice Ramesh Ranganathan and
Justice Ramesh Chand Khulbe said:
“Don’t see the movie if you don’t like it.
We are not the censor board. We are a
democracy and everyone is free to exer-
cise their rights. State shall ensure law
and order is maintained.”
Maharaj’s statement, making a case
for vetting of scripts before allowing
movies to be shot in the state, was
found to be “highly condemnable” by
former Information Director of Uttar
Pradesh Arvind Narain Mishra who is
also into filmmaking. The UP
government, he said, vetted scripts of
only those films which were made with
state subsidy.
If the Uttarakhand government
presses ahead with its decision, it would
be against freedom of expression and
won’t stand legal scrutiny. “It would be
like writing a novel in Uttarakhand and
then submitting it to the government
for perusal before its release,” he said.
in November 2017, the Supreme Court
had underlined the role of the CBFC.
A bench headed by then Chief
Justice Dipak Misra had said: “The cen-
sor board has a role to play and the
Supreme Court cannot assume that role.
Why should the court interfere to stop
the release of a movie which has not
been cleared by the censor board?” The
judges emphasised that it was the pre-
rogative of the censor board to review a
film and decide if it could be released.
Yet, several states did not allow the film
to be released as it “distorted Rajput
history”, an opinion which was formed
even before any of the protesters had
seen it. Subsequently, after Padmavati
became Padmavat and Bhansali agreed
to incorporate some other changes, the
film made it to the theatres.
If Padmavat was blocked for alleged-
ly showing Rajputs in a poor light,
Kedarnath, a film in which Sara Ali
Khan and Sushant Singh Rajput are
starring, hit the roadblocks for hurting
the religious sentiments of Hindus and
promoting love jihad. The censor board
had cleared the film after two cuts, but
that obviously did not satisfy a section
of the BJP in Uttarakhand, who saw the
love story between Sara (a Hindu pil-
grim) and Sushant (a Muslim porter) in
Whiledismissingapleatobanthefilm,theUttarakhand
HCbenchofChiefJusticeRameshRanganathan(left)
andJusticeRameshChandKhulbesaid:“Don’tseethe
movieifyoudon’tlikeit.Wearenotthecensorboard....”

Politics/ 2019 Elections
S Brand Modi losing its sheen?
Going by the results of the just
concluded assembly polls in five
states, the Modi “magic” appears to
be waning. On the other hand, the
electoral fortunes of the Congress
have improved dramatically with a mas-
sive mandate in three of the five states—
Rajasthan, Madhya Pradesh and
Chhattisgarh—in the Hindi heartland,
the bastion of the BJP.
The euphoria surrounding these
elections can be gauged from The New
York Times reportage: “It appears that
Mr Modi, who seemed so invincible not
long ago, may be vulnerable as his brand
loses its lustre. At the same time, the
leading opposition party, the Indian
National Congress, once considered
comatose, has suddenly woken up.”
The BJP suffered a big jolt as its
winning streak was halted just ahead of
the 2019 Lok Sabha polls. This isn’t just
a wake-up call for the saffron party, but
a rude awakening to the ground reali-
ties. The poor show in the Gujarat polls
in December 2017 was the first warning,
while that in Karnataka in May 2018
was the second. The recent results are
the third and most crucial and the BJP
will suffer if it ignores the warnings
any longer.
Why did the BJP lose its bastions?
The first factor was severe anti-incum-
bency in Chhattisgarh and Madhya
Pradesh where the chief ministers were
bidding for power for the fourth time.
In Rajasthan, there was an anti-
Vasundhara Raje wave. The state, any-
way, follows a traditional pattern of vot-
ing out the existing government.
These polls show that the BJP had
TheassemblyelectionshaveshownaresurgentCongress.ItnowneedstogetreadyfortheLokSabha
pollsandstitchagrandalliancewhichwillkeeptheBJPout.That’seasiersaidthandone
By Kalyani Shankar
Photos: UNI
I
Role Reversal
FOR THEM, WITH THEM: Congress party chief Rahul Gandhi with farmers from Tamil Nadu
during a protest demonstration seeking loan waivers in New Delhi in March this year

lost the confidence of the urban middle
classes, farmers, SCs/STs and women.
The party did not read the signals
emanating from the agrarian crisis (the
biggest reason for its defeat in MP).
There was also dissatisfaction in both
urban and rural constituencies due to
demonetisation and the introduction of
GST. Small traders, the core voters of
the BJP, were also disenchanted. The
BJP lost 57 of the 170 seats in the three
states and the Congress gained from the
discontent in the lower castes over the
dilution of the Prevention of Atrocities
Act, aimed to protect SCs and STs
from harassment.
M
izoram went to regional party
MNF and is the only state
where the Congress reduced
its vote share from nearly 45 percent in
2013 to just about 30 percent, while
that of the BJP rose five-fold from 0.4
percent to 8 percent. The Congress lost
due to anti-incumbency there.
In Telangana, the Telangana Rashtra
Samithi (TRS) won with a stunning
majority. Chief Minister K Chandra-
shekhar Rao’s gamble of advancing the
polls worked in his favour. The people of
Telangana, fearing Andhra domination
once again by the Telugu Desam Party
(TDP), rejected the Maha Kootami con-
sisting of the Congress, TDP, CPI and
the Telangana Jana Samithi. The BJP
was a minor player there. The combined
vote share of the Kootami decreased
from 40.46 percent to 32.69 percent,
while the TRS vote share increased from
34.04 percent to 46.86 percent.
The results show that the BJP is
nowhere near achieving its declared aim
of a “Congress-mukt Bharat”. On the
contrary, it got a bloody nose in the
three Hindi heartland states, whereas
the Congress is back in the game. The
BJP should be content that the North-
east at least is a Congress-free region.
After hearing the results, a young
Congress worker exultantly cried:
“Pappu pass ho gaya (Pappu has
passed).” The winner in these polls was
indeed Rahul Gandhi. It took him more
than five years since he became the
party vice-president, a year since he
became party chief and seven assembly
polls to prove that he is a credible leader
in his own right.
Gandhi’s hard work, adoption of soft
Hindutva strategy, temple-hopping,
right mix of social engineering and good
ticket distribution seem to have worked
for the party.
There are several takeaways from the
results. The voters have rejected the
BJP. Gandhi said the assembly election
results were a “clear message” to the
POWER PLAYS
Leaders of the Congress and various regional
parties during a meeting of Opposition parties
in New Delhi on December 10; (right) Prime
Minister Modi at an election rally in Telangana
TheseresultsshowthattheBJPhadlost
theconfidenceoftheurbanmiddle
classes,farmers,SCs/STsandwomen.
Thepartyalsofailedtoreadthesignals
emanatingfromtheagrariancrisis.

Modi government that the people were
not happy with the party and the time
had come for change. He asserted that
his party would also win in 2019. Even
Shiv Sena chief Uddhav Thackeray, who
is the BJP’s ally, commented: “The vot-
ers have rejected the unwanted (BJP),
congratulations to them.”
The obvious fallout of these polls will
be on the 2019 Lok Sabha polls. The
three states together account for about
65 seats and going by the present vote
share, the Congress could gain 30 seats,
while the BJP could lose 33 seats. The
BJP lost 176 assembly seats that it had
won in 2013, and the Congress gained
158 across Rajasthan, MP and Chhattis-
garh, according to an India Spend
analysis of electoral data.
The win could not have come at a
better time for the Congress as it was
demoralised on losing election after
election in the past four-and-a-half
years. Gandhi will emerge a key chal-
lenger to Prime Minister Modi in 2019
and will position the Congress as a cred-
ible alternative to the BJP. The Grand
Old Party is back in the reckoning.
The win will also give much-needed
resources for the 2019 polls as the party
is starved of funds now. It will enhance
its negotiating capacity
with other parties. Above
all, this should unite the
Opposition and a realign-
ment of political forces is
likely ahead of the Lok
Sabha polls.
This win will also
enable Gandhi to anchor
the Grand Alliance if it is
formed before the Lok
Sabha polls. The Congress
should not become over-
confident and arrogant.
It should realise that the
2019 polls cannot be won
without a larger coalition
with regional parties. It
has to reach out to them
and be flexible in seat-
sharing if it wants the
BJP to be voted out of
power. The party has rightly decided to
concentrate on state-specific alliances
rather then of national-level ones. The
Opposition should also draw up a
Common Minimum Programme before
the 2019 polls.
T
hese elections have shown the
Congress not only gaining three
states, but also improving its vote
share in these states. The BJP’s vote
share has shrunk considerably as com-
pared to the 2013 elections. In Madhya
Pradesh, it won 41 percent against 44.88
in 2013. In Chhattisgarh, it came down
to 33 percent from 41 percent and in
Rajasthan from 38.8 percent to 45.2
percent. This should be a matter of con-
cern for BJP strategists.
On the other hand, the Congress vote
share has gone up to 40.9 percent from
38.3 in Madhya Pradesh, 39.80 percent
from 33.1 in Rajasthan and 43 percent
from 40 percent in Chhattisgarh.
Looking ahead, the fight will be
mainly between the UPA and the NDA.
The Congress has to keep the UPA in-
tact and add more allies, if necessary. It
has already tied up state-specific alli-
ances in many states such as Jharkhand,
Tamil Nadu, Telangana, Andhra Pra-
desh, Maharashtra, Karnataka and
Bihar. The party is in the process of
firming up alliances with the SP and the
BSP in UP. If it works out, the BJP will
find the fight tough in UP from where it
got 71 seats in 2014.
The Grand Alliance, even if it materi-
alises, will look at a prime ministerial
candidate only in a post-poll scenario.
The Congress has to get its act to-
gether for the 2019 polls. There is no
point in just Modi-bashing as it has to
reveal what it will offer to the electorate.
While the economy and jobs will be
major issues, others include corruption,
non-delivery of Modi’s poll promises,
demonetisation, GST, the Rafale deal,
cow vigilantism, the Ram Mandir, rising
petrol prices, the agrarian crisis and the
widening division of castes.
The BJP has a tough job on its hands
and may be unable to match its results
in 2014—73 out of 80 seats in Uttar
Pradesh, 25 out of 25 in Rajasthan, 27
out of 29 in Madhya Pradesh, 26 out of
26 in Gujarat, 7 out of 7 in Delhi, 5 out
of 5 in Uttarakhand, 10 out of 11 in
Chhattisgarh and 4 out of 4 in Himachal
Pradesh. It is likely to lose many seats in
2019 and these have to be compensated
for in the Northeast and the south,
where the party is weak.
A coalition with allies could be one
way of getting more seats. The BJP has
lost 18 allies since 2014. They include
the TDP, MDMK, PMK, Rashtriya Lok
Samta Party, Janasena Party, DMDK,
Haryana Janhit Congress, NPF and the
Gorkha Janmukthi Morcha. Now that
the tide has turned against the BJP, it
will make the party a less attractive ally
as compared to 2014.
With hardly three months left for the
Lok Sabha polls, time is of the essence.
Both sides should get ready to face 900
million voters, including 100 million
first-time ones. The strategists in both
camps have to work overtime in reach-
ing their goal.
TheCongresshastokeeptheUPAintactandaddmore
allies,ifnecessary.Ifitseffortstostitchallianceswith
theSPandtheBSPworkout,theBJPwillfindthefight
toughinUPfromwhereitgot71seatsinthe2014polls.
Politics/ 2019 Elections

Health/ GST Council for Healthcare
VERY citizen in the country
has a right to health (under
Article 21 of the Constitu-
tion) without any discrimi-
nation (under Article 14).
Article 47 of the State
Directive Principles imposes a duty on
the State to raise the level of nutrition
and standard of living and improve pub-
lic health. The government, therefore,
has a constitutional responsibility to
provide good quality healthcare to all
citizens that is available, accessible, aff-
ordable and accountable. These are
also the basic principles of universal
health coverage.
India is a federal republic, i.e., it is a
union of states. The distribution of leg-
islative powers between the Union and
state governments has been specified in
three lists—Union list, state list and
concurrent list. The Union health min-
istry implements various national health
programmes. It is responsible for the
prevention and control of major com-
municable diseases, promotion of tradi-
tional and indigenous systems of
medicines and setting standards and
guidelines, which state governments
can adapt.
Public health, along with sanitation,
hospitals and dispensaries, falls under
the state list. This means that the pri-
mary responsibility to provide health-
care lies with the state government,
making health a state subject. Other
health issues such as food adulteration,
drugs and poisons, population control
and family planning, medical education
and the medical profession have been
included in the concurrent list. Both the
Union and states can legislate on these
subjects. In case of any dispute, the
Union law will prevail, though the state
can still override this with presidential
assent. All public health initiatives and
national health programmes need to be
routed through the states.
The centre has its own health
schemes. This year, it implemented
Ayushman Bharat (although a few states
Aspublichealthisastatesubject,centralwelfareschemescanberunthroughit,makingiteasierto
implementaGSTCouncilforhealthcareandespousingthecauseofco-operativefederalism
By Dr KK Aggarwal
E
One India-One Health Policy?
Photos: UNI
RIGHT TO HEALTH
Paramedical staff giving
free medicines to patients
during a day-long medical
camp in Srinagar

The GST was constitutionally provided
for. Those areas are not constitutionally
provided for, but political maturity can
impose on governments to try that
experiment. One is healthcare and one
is agriculture,” Jaitley said. Both the
states and the centre, he said, were
spending on healthcare and had their
respective schemes.
The GST Council makes recommen-
dations to the Union and state govern-
ments on issues related to GST. As per
Article 279A, it is a joint forum of the
centre and states. The central govern-
ment’s vote in the GST Council is one-
third of total votes cast, while the votes
of all state governments taken together
have a weightage of two-thirds of the
total votes cast in that meeting. As far as
GST is concerned, many healthcare
services are exempted. However, plastic
surgery, drugs, devices and disposables
have GST imposed on them.
The GST Council can be said to be
an example of “co-operative federalism”,
where the Union and states work to-
gether to focus on the common good of
opted out—Delhi, Kerala, Odisha, Pun-
jab and Telangana). Likewise, states
may have their own individual schemes.
Even to practise in a different state, a
doctor may require a different licence.
The assertion of the right to imple-
ment legislation as per the distribution
of powers has often led to discordance
between the states and the centre.
Ironically, the sufferer usually is the gen-
eral public for whose very benefit the
schemes are formulated.
N
ow, Union Finance Minister
Arun Jaitley has made a case
for developing a federal institu-
tion like the Goods & Services Tax
(GST) Council in the healthcare and
farm sector. Such a federal body in the
healthcare sector, he feels, should face
least resistance from states as welfare
schemes would be implemented through
them with the centre only coordinating
it. “The federal institution experiment of
the GST having succeeded...there are
two other sectors which eminently re-
quire federal institutions of this kind.
the public instead of formulating
separate policies for individual gain.
By floating the idea of a federal institu-
tion in healthcare, Jaitley has perhaps
espoused the cause of “co-operative
federalism” as exemplified by the
GST Council.
This idea is worth exploring and can
be conceptualised as a policy in the near
future provided all constitutional hur-
dles and conflicting interests are tackled
harmoniously. How far will such a feder-
al institution encroach on the powers of
states is one hurdle as public health is a
state subject.
Should public health be shifted to
the concurrent list? This would be a
huge hurdle and can be done only
through an act of Parliament. All states
have to come together for its successful
implementation as they did for GST
where the idea of “one country, one tax”
is slowly being realised.
The medical fraternity has been
demanding “one drug-one company-one
price” for long. India is committed to
achieving universal health coverage for
all citizens by 2030 as part of the
Sustainable Development Goals. As a
citizen, one has the right to migrate to
any place in the country and still expect
uniform healthcare at uniform costs.
Only then can we say we have achieved
universal health coverage.
Just as the government has made the
National Eligibility-cum-Entrance Test a
uniform examination for admission to
medical colleges in India, perhaps the
time has come for “one India-one health
policy”.
—The writer is president, Heart Care
Foundation of India, and president-
elect, Confederation of Medical
Associations of Asia and Oceania
“Thefederalinstitutionexperimentof
theGSThavingsucceeded...there
aretwoothersectorswhicheminently
requirefederalinstitutionsofthis
kind...Oneishealthcareandone
isagriculture.”
—UnionFinanceMinisterArunJaitley
WELL-ROUNDED SCHEME
The inauguration of the Pradhan Mantri Jan
Arogya Yojana in Lucknow on Sept 23, 2018

States/ Karnataka-Tamil Nadu/ Cauvery
EKEDATU, in Kannada,
means “goat’s leap”.
Ironically, a place by the
same name in
Ramanagaram, 100 km
east of Bengaluru, and in
chief minister HD Kumaraswamy’s con-
stituency, has got Tamil Nadu’s goat as
Karnataka plans to build a balancing
reservoir and drinking water project
there across the Cauvery river. So irked
is Tamil Nadu that it has gone to the
Supreme Court over this issue.
with the rider that the DPR be submit-
ted to it for approval. Tamil Nadu Chief
Minister Edappadi K Palaniswamy has
sought Prime Minister Narendra Modi’s
help to stop Karnataka from going
ahead with the DPR study.
However, the Supreme Court has
declined to stay the CWC’s decision to
allow Karnataka to prepare a DPR. It
asked the centre and Karnataka to file
their replies against Tamil Nadu’s plea
within four weeks, starting from
December 12. The centre assured the
Court that no decision would be arrived
at without consulting Tamil Nadu.
On November 29, in a special session
of the Tamil Nadu legislative assembly,
all parties came together to oppose Kar-
nataka’s move. The state fears it will get
short shrift from the Mekedatu reservoir
project, aimed to slake the thirst of
Bengaluru’s 10 million citizens, apart
from irrigating farm lands in the Cau-
very catchment areas in the region.
Another fear is that if Karnataka holds
on to so much water in this region, it
may lead to a drought in Tamil Nadu.
The Puducherry CM, V. Narayana-
samy, will convene a special assembly on
December 14 to condemn Karnataka
and the centre on the Mekedatu project.
The Cauvery and its tributaries flow
through Puducherry and Kerala.
In fact, the Tamil Nadu assembly had
in March 2015 and December 2015 ad-
opted unanimous resolutions against
Karnataka that it should not construct a
new dam at Mekedatu. Then Chief Min-
ister J Jayalalithaa had also met Nar-
endra Modi, demanding that Karnataka
halt the Mekedatu project. She had ur-
ged Modi to quickly form a Cauvery
Management Board (CMB). But the
apex court had upbraided Tamil Nadu
for its aggressive pace to have the CMB
after the Cauvery Water Disputes Tribu-
nal’s (CWDT) final award.
Part of the Tamil Nadu resolution
said that “despite the Supreme Court
judgment that the upper riparian states
should not implement any projects
without the consent of the lower ripari-
an states, as well as the resolution
TamilNaduhasobjectedtoKarnataka’splanstobuildabalancing
reservoiratMekedatuacrosstheCauveryriverandhas
approachedtheSupremeCourttopouroilontroubledwater
By Stephen David in Bengaluru
M
BRIMMING ENTHUSIASM
Karnataka's water resources minister
DK Shivakumar (right) indicates the site of
the Mekedatu project on the Cauvery river
Rumble in
the Reservoir
What stirred matters was the Central
Water Commission’s (CWC) green signal
to Karnataka on November 27 to pre-
pare a detailed project report (DPR) for
the 67 tmcft project costing `6,000
crore across 6,000 hectares. The
Commission’s green signal is merely an
in-principle approval for the project
Photo source: CM’s Office, Karnataka

passed by the assembly, the Karnataka
government has proposed to commence
preliminary works to construct a dam
at Mekedatu”.
Meanwhile, Karnataka BJP leader
BS Yeddyurappa thanked Modi and the
CWC, a premier technical organisation
in the ministry of water resources which
oversees river management and water
planning across the country. Yeddyu-
rappa wants Karnataka to allocate spe-
cial funds and complete the project
quickly. “It would be a big relief to more
than a million people living in villages
located in the water-starved areas in
Kolar and Bengaluru districts,” he said.
K
umaraswamy, who had also con-
vened an all-party meeting of
his state’s MPs and former CMs,
assured his Tamil Nadu counterpart that
there was no need to panic as the
Mekedatu project would be a win-win
situation for both states. The Cauvery,
which originates in the Brahmagiri hill
range in the Western Ghats in Karna-
taka, snakes its way across 800 km
via Tamil Nadu before emptying into
the Bay of Bengal. “This has been a proj-
ect pending for a long time… we will
work within the framework of law,”
he assured.
In fact, while speaking to reporters
in Hassan, Kumaraswamy had said that
Mekedatu would be more beneficial to
Tamil Nadu than Karnataka. Going by
the orders of the CWDT, Karnataka is
expected to release 172 tmcft of water to
Tamil Nadu from the river. But this year,
as much as 300 tmcft of water flowed
into it owing to heavy rainfall.
Kumaraswamy added that Mekedatu
would only help store the excess water
which, if not harvested as is happening
now, drains away into the Bay of Bengal
via Tamil Nadu. He and Water Resour-
ces minister DK Shivakumar (the proj-
ect falls in his brother and Kanakapura
Lok Sabha MP DK Suresh’s constituen-
cy) have been wanting a dialogue with
the Tamil Nadu team to find solutions
out of court. The project, first mooted in
2013 with the aim to store an additional
66 tmcft of water, has been stuck due to
objections from Tamil Nadu.
Shivakumar even landed in Chennai
hoping to reach out to his counterparts,
but had to return without doing so. “We
are brothers. With folded hands, I re-
quest the people and the chief minister
of Tamil Nadu to give us an opportunity
to explain Mekedatu benefits to you. We
will take you to the site.” However, there
were no takers from Tamil Nadu for his
humble offer.
Reports say that the CWC followed
all the procedures before giving the nod
to Karnataka to call experts to do its
Mekedatu DPR. Karnataka officials also
maintain that the CWC’s in-principle
approval was mainly for implementing
the CWDT award as modified by the
Supreme Court on February 18, 2018.
But as there was no irrigation compo-
nent, the Guidelines for Submission,
Appraisal and Acceptance of Irrigation
and Multipurpose Projects, 2017, of the
CWC were not applicable. If it was so,
a copy of the in-principle CWC
approval would have to be sent to the
stakeholders, co-basin states like Tamil
Nadu in this case, by the project author-
ity. The CWC or CWMA will give a
final go-ahead only after the DPR is
submitted, which will be a few months
away even if Karnataka engages top-
notch experts.
There are other bends in the river
that Karnataka must ford—as Mekedatu
also involves a plan to generate 400
megawatts of power, the project should
also get a nod from the Central Electri-
city Authority (CEA). All projects above
`2,500 crore must obtain a CEA clear-
ance under the Electricity Act, 2003, as
notified by the ministry of power.
Meanwhile, cities like Bengaluru (11
million population) continue to be un-
der water stress as piped drinking water
from the Cauvery is fast drying up. In
the periphery of the city, water tankers
do roaring business, thanks to the
parched state of affairs. Even borewells
are not yielding water unless one digs
quite deep.
Surveys from time to time, including
from the Bangalore Water Supply and
Sewerage Board, show that the city is
on the verge of becoming another Cape
Town. The port city in South Africa too
is running out of water.
Karnataka is hoping that its first
step—even a goat’s leap —across the
Cauvery will give the Kumaraswamy-led
JD(S)-Congress coalition much-needed
water to not only slake the thirst of the
southern parts of the state but to cool
tempers on both sides of the border.
DECISION-MAKING TIME
Karnataka CM (second from right) HD
Kumaraswamy at a meeting in the Vidhana
Soudha to discuss the Mekedatu project
Photo source: CM’s Office, Karnataka

States/ Kerala/ Captive Elephants
Wildlife Department and conducted as
per an order of the Supreme Court.
As per this enumeration, 87-year-old
Dakshayani is the grandmother and
nine-month-old Kannan the baby am-
ong these captive elephants. This mas-
sive exercise included 401 male ele-
phants, 98 female ones and 22 makhna
(tuskless male elephants). In the mean-
time, one elephant, Cherusserimatom
Devidasan, a 32-year-old tusker, died.
AsperaSupremeCourtorder,thestateisconductingadetailedcensusofthesepachydermsinan
attempttopreventtheirexploitationandhasfoundthatmanydon’thaveproperdocumentation
By NV Ravindranathan Nair in Thiruvananthapuram
HUMAN TOUCH
A young elephant being
given a bath by his
trainer at the Konni
Elephant Training
Centre in
Pathanamthitta, Kerala
Jumbo Task
UNI
or believers, the elephant is a
symbol of Lord Ganapathy
and meant to be revered and
worshipped. But often, their
treatment does not match the
faith people attach to the
pachyderms. As their exploitation and
torture continues to hurt animal lovers,
the number of captive elephants in
Kerala stands at 520, according to an
enumeration led by the Forest and
F

India Legal 24 December 2018

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