ROLE Sie aed Pea ei onc cE) Cy py enemas) Beemer y iN mam) eee NG PARLIAMER \ The \expunction of remarks made by. members of the Opposition in both Houses raises troubling questions about free speech and criticism of government policies, Former Secretary-General of the Rajya Sabha analyses the. controversytor nd Bachar ‘Senior Managing Ector Dio Boob Deputy Managing Eltor Soba ono xeouive ator Si Shar Deputy Eator Fabris ‘St General Manager (Prod) IustatorDesign Consutant Mi Senior Att vin Ka Editor (igta)ira ibasy Se Eaovaliag Coordinator ach Pandey (Group Brand Advisor Rem Panda Mes cro oan Sach Sols 8 Nien aac Cceulton Manager ‘val naga eresgratcon rain a pbled Rs een reer are Security, Lawlessness and Summary Injustice The Bombay HiLifting the Veil The abolishment of jy Iran's morality Police shows the difference between legal and moral duties. While law is asetof es ‘whose violations ‘are punishable, moral aws have no legislative sanctions GLOBAL TRENDS Battle for Supremacy Qe The right-wing Netanyahu government's plan to contol the judi ‘ary has found resonance in India where a similar sivation has mud- ded the waters PRIMA FACIE To Judge or Not to Judge §=-28 Postetirement sinecure may dis please a section of poitcians, but every ‘colour of potical patty has been com- pict in somewhat manipulating a small ‘section ofthe juciciay to its own narrow end. Only drastic ‘changes can make this go away COLUMN State of Same Sex Unions = 32 Apart from hostility from the publc regarding same sex marrages, the oer bg hurdles in granting mariage status to same sex couples will come while k defining laws of adoption, (guardianship ‘and succession for them COURTS Viral Backlash Aiticexression vas once again under freas a sudan of MS Unversty was cba ior obec tionabl" artwork Butcours have, ime and again, come . coun heavily on such ‘moral potisng 40 The Dehitigh Gout recent pointed out (thal he forest coven Dehi is reducing dsticaly. The bench shed the addtional salictor general to pasonal lok into the matte and also the slats of pending casesin the Saree Cour on sirius Browning af Delhi ‘SPOTLIGHT . Doctor's Dilemma Treeisa growing tendancy to accuse the 4 doctor alagng medical negligence. Nothing can be mor protessionaly damaging and eroionaly ring than beng accused of any such actin, Now, doctors re increasingly defending themseles in courts REGULARS (ove Desir SHANTANU MTA Courts, 5g Rings oa Faceea con/ndaglneis Is That Legal 10 Twit elegans itomational Bes. a8 ebste wna com Contact etoindlgaie com [INDIA LEGAL | February 27, 2023 5(ened Adani-Hindenburg effect: Supreme Court committee to review regulatory mechanism for safety of investors ve Supreme Court has said that t would pass orders to const- {ute an expert committe, which would review the regulatory mechanism and suggest ways to protect investors from incidents such as the recent Hindenburg-Adani issue which ht Indian investors as wal as the share marke, badly The bench of Chet Justice of India DY Chandrachud and Jus- tices PS Narasimha and JB Parciwala made these observations ater Solicitor General Tushar Mehta, appearing forthe central gov- ernment, submited the remit of the proposed committee and aso its members. Wile refusing to accept the names recommended by the cen- The top court ofthe country further rejected the suggestion tre, the apex court orally observed thatthe judges would pick the made by some petitioners to include a siting Supreme Court judge ‘committee members themselves in order to maintain ful rans- in the committee to monitor, parency and to have full (pubic) confidence in the committee. Mehta requested that the remit of the committee should be The top court ofthe country observed that if it took names from defined in such a manner so as to not give an impression to the government, it would amount to a government-constituted foreign and domestic investors that there were inadequacies in ‘committee, adding that it cannot start with a presumption of regula- the regulatory framewark. Keeping in mind the suagestin, the tory failure apex court asked the petitioners in each case to present their The bench said that it would not entertain suggestions from viewpoints either the centre or the petitioners regarding recommendation for On February 10, the top court had directed both the Union gov- the members of the committe. It also refused to accept the sug- ernment and SEBI to suggest measures regarding modification in ‘gestions made by SEBI regarding members of the committee on the _ the regulatory framework and for the protection of Indian investors ‘ground that nobody would be allowed to question the committee or The top court of the country is currently hearing three petitons ‘comment on the merits of its members, related tothe Hindenburg-Adani issue. CJI Chandrachud to take a call on pleas challenging abrogation of Article 370 he Chief ustice of India (Cl) DY Chan- _Kashmi’s special status. The state was tt was way back on March 2020 that a Crachud has said that he wil take @ call eventually bifurcated into two Union five-judge Constitution bench ofthe Supreme ‘on isting the pettions which challenge the Terttries. Court had decided not to refer the batch of removal of special status ‘ peltons to a seven judge ‘granted to Jammu and Constitution bench, even Kashmir under Article 370 of atter some petitioners sought the Constitution. The matter a reference. ‘was mentioned by Senior ‘The pettioners argued that ‘Advocate Raju Ramachan- the two Supreme Court judg- «ran before a bench led by ments, which were rendered the Cu by ive-judge benches and There are about 20 pet- deat wth the interpretation of tions which remain pending ‘Article 370 were in confit. before the apex court. The However, te fve-udge pleas challenge the govern- bench that was hearing the iments decision of abrogating case decid to refer the mat- ‘Article 370 of the Const ter to a larger bench, stating that there was no confit between the two judgments, tution that resulted inthe rev- ‘cation of Jammu and 6 FebruaryNo immediate reconsideration of 2016 Nabam Rebia verdict, but SC lists matter to hear merits >». he Supreme Court has retused to imme- lately send its 2016 Nabam Rebia ver- dlict—that had restrained a Speaker facing a notice on motion for his removal from de- Ciding disqualification pettions against MLAs under the ant-defection law—for reconsideration to a seven-judge bench, The five-judge Constitution bench of Chiet Justice of India DY Chanerachud and ustioes MR Shah, Krishna Murai, Hima Kohli and PS Narasimha observed thatthe question of referring the 2016 Nabam Rebia verdict to larger bench could not be de- cided in an abstract manner, isolated and ivorced from the facts ofthe case. Itsaid the apex court would fist hear the merits ofthe matter and then decide on refering the same toa larger bench, The Constitution bench passed the order on a batch of petitions, which were fed by ‘wo rival factions ofthe Shiv Sena party led by Chief Minister Eknath Shinde (above let) and former chief minister Uddhav Thackeray (above right), respectively. ‘n duly 2022, Maharashtra was plunged into a poitica crisis after a change inthe state government le to spt in the erstwhile Shiv Sena party. A petition filed by the UUadhav camp had urged the apex court to revisit the correctness ofthe judgment in 'Nabam Rebia vs Deputy Speaker (2016). In Nabam Rebia case, the then Chet tice JS Khehar and Justice Dipak Misra had ruled that the Speaker cannot decide sisqualicaton pettions under the ant- defection law (Tenth schedule of the Cons- tution), ia notice under Article 179(c) of the Constitution for removal was pending. However, Juste MB Lokur, in his verdict, had observed that this point did not arise in the case. Now the Constitution bench has obser- ved that it has to be ascertained from the facts ofthe case whether the principles of ‘Nabam Rebia were atracted inthe instant ‘case and the matter has been fixed for fur- ther hearing on February 21 The apex court conducted consecutive hearings on the matter for three days and reserved its verdict. Earlier, the bench had ‘observed thatthe governor ofa state should not have a say in the formation of the gov- fernment. The top court ofthe country said that when a government was formed, and ifthe governor was asked to give a trust Vote, he should abstain from entering the political arena, Elgar Parishad case: Gautam Naviakha withdraws plea seeking transfer from Mumbai to Delhi he Supreme Court has allowed activist Gautam Navlakha, an accused inthe Bhima Koregaon violence case of 2018, to withdraw his petition seeking transfer from ‘Mumbai to Delhi under house arrest. The bench of Justices KM Joseph and BBV Nagarathna dismissed the petition as withdrawn after Senior Advocate Nitya Ramakrishnan, appearing forthe activist, told the bench that Naviakha would look for some other place to stay in Mumbai. The Counsel said that Naviakha would withdraw the plea. Appearing forthe Nationa Investigation ‘Agency, Solicitor General Tushar Mena ‘opposed Navlakha’s application (On November 10 last year, the apex court had shifted the 73-year-old human rights activist from Taloja prison, where he ‘was then lodged, to house arrest for one ‘month, on medical grounds. The bench of Justices KM Joseph and Hrisikesh Roy had passed an interim order for his one-month house arrestin Mumbai, considering his age and medical condition, The apex court had put some conditions ‘onthe activist during his house arrest. Navlakha was told not to use mobile phone, interet, laptop or any other communicating device. He was permitted to use a mobile phone provided by the police for 10 minutes in a day in presence of police personnel. Only his sister and daughter were allowed to visit him once a week for three hours. ‘The top court ofthe country asked Nava to deposit Rs 2.4 lakh for expens- es incurred by the stat in providing police security It further directed that Navikha’s house will remain under surveilance. Police personnel willbe deployed outside the resi- dence, while CCTV cameras will be installed ‘outside the rooms and at both entry and ext points ofthe house. He was told not to leave the house under any circumstance, except for walks inthe company of police personnel. The activist was also prohibited from talking to any person during walks. [INDIA LEGAL | February 27, 2023 7Shartann Mitra "When you have police officers who abuse citizens, you erode public confidence in law enforcement. That makes the job of good police officers unsafe. —Mary Frances Berry, American historian, writer, lawyer, activist and professor “The strictest law sometimes becomes the severest injustice.” —Benjamin Franklin, American printer and publisher, author, inventor, scientist and diplomat leamed law so well, the day | graduated | sued the college, won the case, and got my tuition back.” —Fred Allen, American humoristsaree 7 Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day-to-day basis Enough Legal Protection for Dowry Victims 10 February 27, 2023 |s dowry legal in india? What are the protections provided by law? ‘The Dowry Prohibition Act, 1961, provides protection to wives who are harassed, humiliated and tor- ‘ured due to dowry demands in India. However, dowry is distinct from gitts—money, property or ‘consumer durables voluntary ven by the father ofthe git Without being coerced Section 3048 of the Indian Penal Code relates to death ‘caused by any physical injury due to dowry demands within seven years of marrage. Once convicted, the per- on wil face a jal term not less than seven years, Which could be extended to life imprisonment Section 498A deals with cruelty inficted by the The Last Judicial Resort What is curative petition? ‘The concept of curative petition nas been intro- ‘duced by the Supreme Court. The idea is to ro- vide yet another opportunity to an aggrieved per- son for reli after the final verdict is delivered by the top court inthe review pettion. However, the ground fora curative petition is based only on issues of law. The aim isto prevent any miscar- SLPs Must be Filed Within Prescribed Time ‘What is a Special Leave — a | A Special Leave Petition (SLP) refers tothe power of the Supreme Court under Article 136 ofthe Constitution which empowers ito grant special leave or permission to a party aggrieved by an order of a High Court o tribunal. Under this provision, the party does not file an appeal, but seeks permission to fle an appeal husband and is family members due to dowry demands. Once convicted, the person could face punishment witha three-year term in jai, accom- panied by a fine. riage of justice, There is no time limit for such petitions. The petitioner must prove that there has been a violation of natural justice Filed by a senior advocate, the curative petition is sent tothe three seniormost judges of the apex court as well as judges who have heard the matter. The mater is placed before the appropriate court only after the majority of the judges agree thatthe matter should be heard again Therefore, when a special leave petition is filed in the Supreme Cour, the Court hears the matter and if considers fi, it may grant leave pursuant to _ which the petition is converted into an appeal. An SLP must be fled within 90 days from the date of judgment of a High Court or tribunal. can also be filed in cases where a High Court refuses to grant a certii= cate of fitness for appeal to the Supreme Court. In such cases the SLP must be filed within 60 days from the date of refusal ofthe High Court to rant the certificate of fitness,Res Judicata Evolved to Avoid Multiple Court Cases ‘What is the doctrine of res judicata? Res judicata isa Latin term meaning the thing has been judged”. The concept evolved to avold mutiplicty ceedings ina cour no court wil have the try afresh suit or issue pertaining to an issue which has been already set ted in a former suit between the same parties. When a court finds that a suit or issue on already been d there is no a court, then the court has Judicial Review is a Part of Basic Structure ‘What isthe principle of judicial review? Juical review is a process under which execu tive and legislative actions are subject to review by the judiciary. Judicial review is one of the checks and balances in the separation of pow ers, forming a part of its basic structure as laid down in he case of SR Bom many atime the matter has be se ofthe case by granting a decree of res julicata discussion among legal luminaries. Juicia jew isa tool which assures thatthe adminis- executive and legislative action isin con- ssonance with the law of the land Through this tool, the judiciary reviews thas been done by the other organs of the (government. The apex court, being the guardian ofthe Constitution and the highest court of interpretation as tothe provisions of the Constitution, is dutybound to protect the Constitution Anyone Can Complain Against Domestic Violence ‘Who can file a complaint against an incident of domestic violence? A complaint against a domestic violence incident can be fled by any person, whether related to the victim or nt. However, to file a complaint against an in dent of domestic violence one ‘must have reason to believe that an act of domestic violence has taken place in the past, or is taking place, or is likely to take place in the future. The law exempts such persons from any ciminal or civ ability if such information is given in good faith in the absence of bad intention, [INDIA LEGAL | February 27, 2023 ILParliamentary Discussion EXPUNCTION ROW The furore in both houses of Parliament about expunctions from the speeches of two leading members of the Opposition relating to an Indian businessman has brought focus on this parliamentary practice. What are the official compulsions? RIGHT TO DELETE ‘The Lok Sabha (above) rules allow the Speaker (net) 10 ‘expunge words tom the proceedings of the House, ihe considers them unpariamentary By Vivek K Agnihotri ERTAIN portions of the spee- ches of two leading members of the Opposition in the Lok Sabha and the Rajya Sabha, including the leader of the Opposition in the Rajya Sabha, were expunged by the concerned presiding officers. The expune- tions related to allegations made regarding the benefits harnessed by a leading business- ‘man because of his close association with the prime minister. Article 105 of the Constitu- tion provides that there is freedom of expre- ssion in Parliament. No member of Parlia- ce ment shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any com- mittee thereof. However, proceedings of the ‘two houses of Parliament are governed by the rules and regulations framed by the concerned Houses as a self-regulating mech- anism. They are not open to question of any third-party or even individual members of Parliament. According to Rule 380 of the Rules of Procedure and Conduet of Business (Rules) in the Lok Sabha, if the Speaker is of the ‘opinion that words have been used in adebate which are defamatory or indecent or unparliamentary or undignified, the Speaker ‘may, while exercising his/her discretion, or- der that such words be expunged from the proceedings of the House. Rule 261 of the Rules of the Rajya Sabha confers similar po- ‘wers on the Chairman of the Rajya Sabha. Farther, Rule 238 of the corresponding rules of the Rajya Sabha inter alia states that a ‘member while speaking shall not refer to any matter of fact on which a judicial decision is pending, make a personal charge against a ‘member or reflect upon the conduet of per~ sons in high authority unless the discussion is based on a substantive motion drawn in proper term. A ruling of the Chairman {issued on April 15, 1987, relating to parlia- mentary etiquette further states that no aspersions should be east on any person who isnot a member of the House. Another ru- ling of the same date states that there should not be any derogatory remarks against a per- son who is incapable of defending himself in the House [rulings numbers 313 and 323 of ‘the Rulings and Observations from the Chair (2952-2008)). Tthas also been held that remarks not relevant to the debate may be expunged. Further, quoting from a document of which advance notice has not been given and which is not relevant to the debate may be ex- punged. The hand books for members of the Rajya Sabha as well as the Lok Sabha, in their respective sections on parliamentary customs and conventions, prescribe that dis play of exhibits on the floor of the House is not in order. Expunetion from the proceed- ings of the House may be ordered in one of the following circumstances, namely, the ‘Speaker himself holds a certain word or words as defamatory or unparliamentary or ‘undignified when such word(s) is/are utt- cred; or a member or a minister invites the ‘Speaker's attention at the time when such, ‘words are uttered; or ifthe attention of the Speaker is drawn to objectionable words by an officer of the secretariat or otherwise or a ‘motion is moved for expunction. rdinarily, there is no review regard ing words already expunged and requests from members for restora- tion of expunged words or raise the question of expunetion in the House have generally been turned down. There have been rare ccases where the Speaker on consideration hhas agreed to restore some words expunged from the proceedings of the previous day. ‘The decision of the person presiding regard- ing expunetion of any words is final and no appeal lies to the Speaker: The Speaker has ruled that he has no authority to alter or revise or review a decision once given by the chair, whether it was the deputy speaker or a ‘member of the panel of chairpersons. ‘When certain words or expressions have been ordered to be expunged or ordered not tobe recorded, the media is expected to AL| February 27, 2023 18BB Lecd/ Parliamentary Discussion The topic ofthe debate, in the present case, was mation of thanks on president's address, What may be legitimately acceptable as an coral question an the prime minister's visits abroad may not be relevant in the context of motion of thanks ‘onthe president's address under Article 87 of the Constitution, ¥4 February 27, 2023, take note of the orders of the expunction or non-recording and to ensure that such por- tions are not telecast in the recorded ver- sions by the electronic media or reported in the press. In the original videotapes also, ‘which are with Sansad TV, expunged not recorded portions are erased, consistent with the printed version. Publication of the ex- punged words or expressions would amount to a breach of privilege ofthe concerned house of Parliament. he context in which a word or sen= "Tiina cers in making the decision on whether to expunge it or not. Again, what is not rele- vant to the topic of the debate may not be allowed to go on record. The topic of the debate, in the present case, was motion of thanks on president’ address. What may be legitimately acceptable as an oral question on the prime minister’ visits abroad may not be relevant in the context of motion of thanks on the president's address under Article 87 of the Constitution, which inter alia provides that at the first session each ‘year, the president shall address both houses of Parliament assembled together and inform Parliament of the cause of its sum- ‘mons. It further states that provision shall bbe made by the rules regulating the proce- dure of either House for the allotment of ‘time for discussion of “matters referred to in such address”. During this discussion, the ‘members normally talk about various pro- ‘grammes and schemes of the government and their advantages or shortcomings. Motions to amend the president's address are also moved, with reference to matters referred to in the address as well as to mat- ters whieh, in the opinion of the mover, the address had failed to mention. After the prime minister has replied to the debate, the amendments that had been moved are either ‘withdrawn or disposed of through a voting procedure and the motion of thanks is put to the vote of the House. After the motion is carried, it is conveyed to the president as directed by the Speaker through a letter. ‘The president also acknowledges the receipt ‘of the motion through a message to the ‘Speaker. On receipt of the message, the Speaker reads it out to the House. The Rajya ‘Sabha too has a similar procedure. Its thus «fairly formal process. For raising issues in Parliament, the motion of thanks on the president’ address is not the only instrument available in the rule book. There are various ways in which, following the procedure prescribed, the members can hold the government account- able for its actions, These inelude the ques-tion hour, half-an-hour discussion if the ‘member is not satisfied with the reply to a question, motion on matters of public inter~ est, short duration discussion, calling atten- tion to matters of urgent public importance, special mention, questions of privilege, among others. he Leader of Opposition (LoP) "Tetris the chairman, Rajya Sabha, has averred that criticism of policies and pro- ‘grammes of the government cannot be con= strued as allegations against any member of ‘the House (Rule 238 of the Rules of the Rajya Sabha aforementioned). Indeed, ‘there can be no quarrel about criticism of policies and programmes of the government by the Opposition on the floor of the House cor in the civil society outside, However, per- sonal barbs laced with sarcasm are not in consonance with the dignity and decorum of Parliament. ‘The LoP in the Rajya Sabha has also referred to Rule 238A of the Rules of Rajya Sabha and argued that “criticism of the gov- ernment, its polices and their impact, can never be equated with the ‘dignity of the Council. Further, itis difficult to fathom and their consequences’, Rule 238A is actu- ally a subset of Rule 238 and is titled “Procedure regarding allegations against ‘members’ It has nothing to do with the government, its policies and their impact. Specificaly, the LoP has quoted from the proviso of Rule 238A which, in effect, states that the chairman may at any time prohibit ‘any member from making any allegation against another member if he is of the opin= ion that such allegation is derogatory to the dignity of the Council or that no publie interest is served by making such allegation. In any ease, the present prime minister is not a member of the Council of States (Rajya Sabha). Moreover, Rule 953 of the Rules of Lok Sabha prescribes that no allegation of defamatory or ineriminatory nature shall be made by a member against any person “unless the member has given adequate advance notice” to the Speaker and also to the minister concerned so that the minister ‘may be able to make an investigation into the matter for the purpose of a reply. The tenor of Rule 353 of the Lok Sabha rules similar to that of Rule 238A of Rajya Sabha rulesat The Leader of Opposition in the Rajya Sabha, Malikarjun Kharge, in his letter to the chairman, Rajya Sabha, has averred that criticism of poli- cies and programmes of the government cannot be cons- trued as allegations against any member ofthe House Indeed, there can be no quarrel ver this issue, but personal barbs laced with ‘sarcasm are not in conso- rnance with the dignity and decorum of Parliament. —The author is former ‘Secretary-General, Rajya Sabha ‘that in a parliamentary democracy, no pub- lic interest is served by criticism of policies [INDIA LEGAL | February 27, 2023 15‘Preventive Detention LAWLESSNESS AND SUMMARY INJUSTICE The Bombay HC slammed the tendency by district judiciary to rubber stamp bail orders as they lacked reasoned elaboration. But the culture of summary justice is widely prevalent. Can algorithmic justice help? Or would it be regarded as deficient in due process? By Prof Upendra Baxi HEsstate of Maharashtra has, _vention of Smuggling Activities Act, 1974 in addition to many central (COFEPOSA providing for preventive deten- laws that provide forthe pre-_tion when it is necessary to prevent smug- ventive detention of suspects, _gling); National Security Act, 1980 (provid- framed multiple laws authoris- ing preventive detention in accordance with Article 22 of, the Constitution of India. of Blackmarketing and Ma Union laws applicable to states include ‘Supplies of Essential Comm Conservation of Foreign Exchange and Pre- ities Act, 1980 (The Act authorises preven- ing for prev ive detention to secure the national security andtive detention of persons who are likely to disrupt the maintenance of supplies of essential commodities to the community). In addition to the widely used Maha- rashtra Preventive Detention Act, 1970, the state has the well-meant, but notorious and much misused, MOCOCA (Maharashtra Control of Organized Crime Act, 1999). This is added to a curious law called the Preven- tion of Dangerous Activities of Slumlords, Bootleggers, Drug offenders, Dangerous Persons and Video Pirates Act, 1981 (MPDA Act.) I call it curious because its definition of prohibited activities is not only overgenerous to practices of detention, but it is also diff- cult to find why offences described there re- uire special laws as if the general law in the Indian Penal Code (and the associated Cri- minal Procedure Act) is inadequate for ‘the purpose, Indeed, much has been said about its dangerous definitions, which rest too much ‘on subjective satisfaction of the authorities to detain a person without proof and even without the application of mind. Thus, Justices Valmiki Menezes and Vinay Joshi of ‘the Nagpur Bench of the Bombay High Court held recently that “we have no doubt in our mind that there has been a total non- compliance of the mandate of law... in that the Authority has neither recorded verifica- tion of the content and authenticity of the statements directly from the witnesses, nor has it reeorded anywhere that it has verified ‘that those witnesses were unwilling to give statements and testify against the Detenu out of fear”! Ttis true that the Court had ruled in Deval v. Government of Tamil Nadu that ‘the High Court had “committed a grave error in holding that asthe period of detention of 12 months was mentioned in the order of detention, .. is contrary to Section 3 of the Act” But it was the same Court that was constrained to state in 1995 that “the fallout and the extent and reach of the alleged activ- ities’ must not be based on the mere say-so ‘of high police officials; rather, it must be of such a nature that they travel beyond the capacity ofthe ordinary law to deat with ‘him or to prevent his subversive activities affecting the community at large ora large section of society” so as to adversely “impact upon the even tempo of life ofthe people? ‘The Nagpur Bench of the Bombay High Court puts an iresistible gloss on that judg ‘ment by adding: “Every criminal act alleged against the Detenu would therefore not be such as to prejudice the maintenance of public order, until its so demonstrated” [at para 16], he tendency to pass a specialised I criminal law declaring certain con- duet as a crime in addition to the general law on crime and punishment has become entrenched in Indian law. Itis high time to revisit this inthe light of new demosprudential (democracy-friendly) developments in Indian constitutional law. Over-criminalisation tendencies have, far- ther, rightly been viewed as counterproduc- tive, and even dangerous, by contemporary criminology. Ina cognate case of preventive detention, Justice Manju Rani Chauhan of the Allaha- bad High Court recently observed: “Its a staggering irony that deponent of counter affidavit, who is Deputy Superintendent of Police/Circle Officer, Sahawar, Distriet Kasganj, believed himself to be empowered with sanction to author a certificate of| propensity of a person without any cogent ‘material” She added that sinee “75th ie Justices Valmiki Menezes (inset, top) and Vinay Joshi of the Nagpur Bench of the Bombay High Court held recently that "there has been a total noncompliance of the mandate of law... in that the Authority has neither recorded verification of the content and authenticity of the statements directly from the witnesses, nor hasit recorded anywhere that it has verified that those wit- nesses were unwilling to give statements and testify ag- ainst the Detenu out of fear”. [INDIA LEGAL | Februory 27, 2023 17BEE Opinion/ Preventive Detention The tendency to pass a specialised criminal law declaring certain conduct as acrime in addition to the general law on crime and punishment has become entrenched in Indian law. It is high time to evisit this in the light of new demospru- dential (democracy-friendly) developments in Indian constitutional law. 18 February 27, 2023, Independence Day Celebrations, Govern- ‘ment has marked Azadi-ka-Amtit Mahotsav terming it to be ‘Amrit Kaal' with prospec- tive vision in welfare of citizens of the coun- try’, however, “Police Administration feels ‘more comfortable to remain with colonial structure™* anything, one may add here, neither the security of people and the country, nor police ideals of efficiency is ever served by such colonial and lawless disposition. sat makes the Nagpur Bench decision interesting is the case of iudieial indifference to the Consti- tution. It highlights a facet of lawlessness of the judicial culture by passing strictures against the bail order of 09.03.20 by the Judicial Magistrate First Class, Amravati, on “a rubber stamp with blank spaces, which are filled in by inserting the bond amount and no other details are contained on the rubber stamp’, ‘The Bench notes “that there is no appar- ent authorization of the High Court for the use of sueh rubber stamps to enable a Ma- sistrate to grant bail”, One is tempted to say further that such an authorisation would fail to pass the test of Article 21 of the Constitu- tion—the fundamental rights to life and lib- erty and due process. Instead, the Bench is content to “deprecate” the practice and to say: “Grant of bail is a matter of diseretion to be exereised bythe concerned Magistrate, ‘who is expected to apply his mind after con- sidering the material on record and is re- ‘quired to be granted or rejected by a speak- ing order. A Magistrate's order on a bail application certainly cannot be rendered on a rubber stamp as we note, has done in the present ease.” [Para 18] Rubber stamp/standard form justice isan important part of judicial strategy of sum- mary trials to minimise long trials. Weapo- nising adjudicatory time to avoid huge pen- dency rats isan essential component of judicial administrative toolkit (Lok Adalats, for example). And high disposal rates are often considered virtues for high rankings for judicial officials. Long back, it was found (in the 1980s) that judges in Bombay disposed of as many as 250 bail applications of “beggars” sum- marily within half an hour in standard form ‘orders which they signed. To take another ‘example, traffic challans (now digitally forced) for offences of speedy driving are a ‘way of summary justice. I do not know ‘whether such measures were “authorized” by the High Courts, but I know that such a judicial recourse falls woefully short of sub- stantive due process standards under Article 21 ofthe Constitution, It would be interesting to know whether the learned justices, and leaders ofthe Bar, ‘would contest all the diversity of practices concerning abbreviated tral procedures adopted by district judiciary. Are they consti- ‘utionally indifferent or adapting new ways of summary justice, thus disposing huge arrears? At least two questions we must pose here: What are the forms of summary justice in India? And what are the wrongs and rights of summary justice? It would also be useful to know whether a full judgment on bail authored, not by hu- rman justices, but by artificial intelligence will be acceptable to the Bar and the Bench. ‘The use of artificial intelligence is already advocated in judgments on flight risk in bail matters, which ean be more accurately pre- dicted by artifical intelligence programmes than by human ageney.An estimated 5,00,000 Americans are said to be in jail awaiting trial because a {judge deemed them a flight risk or a danger ‘to the public. But many of those pretrial de- ‘entions are unnecessary and unfair, accord- ing to Sharad Goel, (Assistant Professor of ‘Management Science and Engineering and Executive Director of the Stanford Computa- tional Policy Lab), who along with his eol- leagues, studied 1,00,000 judicial decisions ‘o find that judicial release on bail applica- tions varied. In some case, they were as high as release in more than 90% of defendants ‘on bailto “only 50 percent”. Goel finds that such disparities “flow from the often haphaz- ard way in which these consequential deci- sions are made” Of course, while “the final ‘decision remains with them’, a “statistically robust rubric ean help judges identify and. release people who really re low risk” and “following recommendations from our risk rubrics, judges could, in some cases, detain half as many accused individuals without endangering the public or increasing the number of defendants who fail to appear at trial” ‘obe sure, the research will be onto | cal various ways of devising just or properly constitutional algorithms of past decisions. Would algorithm driven analysis be sufficient, or would it be rejected out of hand by Indian High Courts and the Supreme Court because they were not writ- ‘en by human agencies , but by reliable search engines? ‘True, ‘pretrial risk assessment tools as Al-based tools” create the impression that sophisticated robots are taking over courts and pushing judges from their jobs, but that, {impression is far from reality. But “despite the hype’ robots have a “long way to go before they can replace judges’ as “extensive ‘work .. needs to be done to ensure that risk assessment tools are both accurate and fair ‘The author is an i an acelai UNNECESSARY AND UNFAIR [An estimated 5,00,000 ‘Americans are eai tobe in all awaiting trial because a judge {doomed thom a fight risk ora danger tothe public ‘toward all members of society”. ‘The larger question is about the ways in Which machine learning may assist expedi tious and effective administration of justice; it is about the scope of convergence between judicial and digital highways. No longer is it the question of, as the popular ditty goes, “My Way or the Highway”. m 1 Criminal Writ Petition No. 738 of 2022 [Asokrao Patil v State of Maharashtra] decided on 8 February 2023, at Para 16. 22 scc 456. 3 Mustakmiya Jabbarmiya Shaikh v. MM. Mehta, Commissioner of Police, (1995) C0237, 4 Criminal Mise Anticipatory Bail, Application U/S 438 CrPC. No. 5397 of, 12020; Order Date:-6.2.20: ° httpss//engineering.stanford.edu/maga- zine/articlefean-ai-help-judges-make-bail- system-fairer-and-safer (accessed February 14, 2028). © Doaa Abu Elyounes I, “Bail L Or Jail? ‘Judicial Versus Algorithmic Decisionmaking in the Pretrial System’, Columbia A Science & Technology Law Review, 21:2, 376- 446(2020). ‘ernationally-renowned law scholar, ed teacher and a well [INDIA LEGAL | February 27, 2023 19LIFTING THE VEIL The abolishment of Iran's morality police shows the difference between legal and moral duties. While law is a set of ‘The primary role of the morality ‘police In ran (above) 110 enforce laws concerning rans ‘conservative Islamic dress code. Last year, 22-year-old Mahsa Amini (mset) died in the ‘custody of the morality police 20 tules whose violations are punishable, moral laws have no legislative sanctions By Justice Bhanwar Singh € Professor (Dr) NK Bahl ar-old Mahsa tody of the moral- ity police in Iran. She was detained for violation of the female dress code. But the attorney general of Iran simwul- taneously declared that the judiciary ‘would still enforce restrictions on social behaviour and scarf regulations were being reviewed. ‘According to media reports, there is no confirmation of closing down the morality police from the interior ministry which is in- charge of it. Incidentally, t lity police hhas nothing to do with the functioning and orders of the judiciary in the entire hierar- chy of courts, Its primary role relates to the which ineludes ; loose clothing, and her head with a scar or hija. Thus, enforcement of laws concerning Ir servative Islamic dress 60 long black robes and chadors along with a black head covering reaching down to the ‘chest have become the norm for women in Tran and other Muslim countries. fe the eoneept of moral policing and Iran is one of them. However, it recently abolished the concept of morality police after wide protests in the aftermath of the death of Mahsa Amini. The concept was In September 2022, the US also imposed sanctions on the morality police. ‘So what is the distinetion between legal and moral duties, their violations and conse- quent enforcement and penal consequences? Imagine a blind man crossing the road. X, another man in fine health and good vision, was also crossing the same road at the same‘time. X did not bother to escort the blind ‘man to other side of the road, He walked away and crossed the road, but the blind ‘man met with an accident and died. Simi- larly, a child was drowning in a river. X, an expert swimmer, was watching this incident, but did not bother to save the child. Is X liable to be prosecuted for not escorting the blind man or saving the child? Was it his legal duty to escort the blind man and save the child from drowning? Did he violate his legal duty? Or was it his moral duty to escort the blind man and save the child from drow- ning? Is he liable for violation of moral duty? ‘What is the duty of the morality police, if any, in these situations? ‘Similarly it is the moral duty of children to obey and respect their parents and elders. But ifthey do not do so, what will be the consequences? Children residing abroad are not available for such instruction due to ‘their circumstances. There have even been instances where the parents residing in India ppass away and the children could not come for their funeral ceremony and other last. rites. Such unfortunates arrive in India ace- ording to their own convenience. Where is the implementation of moral duties? Are there any moral laws to punish such children neglecting their parents? Queen vs Dudley and Stephens, the issue of moral necessity was raised. In this ease, three seamen and a boy were cast away in a storm in an open boat. Food and water in the boat got over. They had to drink their own urine to survive. In order to save themselves from death, as the days passed, they decided to kill the boy named Parker and feed on his flesh Three days later, ‘the three survivors were reseued with blood and human flesh under their fingernails. The jury was reluctant to pronounce Dudley and Stephens guilty: They pardoned them, saying that their rime was washed away by inevi- ‘able necessity. However, the jury gave a “spe- cial verdict’, an unusual judicial procedure, by referring the case to a higher court. The Queenis Bench of five judges, however, held that no man could take another’ life to save his own, They were found guilty of murder and awarded death sentence, but later on, their sentence was reduced to life imprison- ment, It was held that necessity is no defense for a crime. The Crown reduced their penalty to six months imprisonment on the ground of rmerey: Was it the legal/moral duty of the sai- lors to save the life of the boy even if they ‘were dying of hunger? Are morals the basis of ‘each and every rule? ‘Truly speaking, law and morality are two different subjects and their area of operat is also different. Laws are a defined set of rules, whose violations are punishable. Mo ral laws, on the other hand, are not well defined and there are no legislative sanctions behind them so as to punish the violator. In India, we have the police to prevent ‘the commissions of crimes and bring the perpetrators to book. Their job is to investi- gate violations of laws and file a charge sheet ina competent court so that they may be tried and punished, if found guilty. But we do not have the idea of a moral police for the protection of the moral rights of citizens. ‘This task is, at best, done by parents and elders. There is no State machinery to do this job. There are no judicial decisions on this aspect either from the Supreme Court or any High Court. Ifwe compare the relationship between law and morality, it can be safely said that Taw deals with and regulates external con- duct, whereas morality deals with and regu- lates internal conduct. In other words, morality appeals to the conscience, whereas law acts externally through sanctions im- posed by the sovereign authorities. Moral sanctions are, truly speaking, social sane- tions or internal sanctions, If external sane- tions are introduced in enforeing; moral principles, then morality will become an externally working power, whieh is presently not the case, Morality neither frightens nor > Truly speaking, law and morality aretwo different subjects and their area of operation is also different. Law deals with and regulates extemal conduct, whereas ‘: morality deals with and regulates internal conduct. Morality appeals to the conscience, whereas law acts externally through sanctions imposed by the sovereign authorities. [INDIA LEGAL | February 27,2023 21Opinion/ Global Trends/ Iran & Morality Police [ In India, we have the police to prevent the commissions of crimes and bring the perpetrators tobook, But we donot have the idea of a moral police forthe protec- tion of the moral rights of citizens. This task is, at best, done by parents and elders. There are no judicial decisions on this aspect. 22 February 27, 2023 commands, but enjoins through an appeal to the conscience. ‘Toillustrate, if man or woman is good, itis because of their love for goodness, and not because of fear of sanctions or punish- ‘ment. The external sanetions of morality are basically social sanctions, with a view to enforce religious fanaticism, whereas the internal sanctions in morality are inthe form of pleasure” as a result of good ac- tions, or“pain” as. result ofthe pricking of the conscience because of a bad action. ‘The relationship between law and moral- ity can be gnuged from three perspectives Morality may be the basis of law, it may be the test of postive law or it may be the end of law. In primitive societies all rules origi- nated from a common source and the sane- tion behind them was ofthe same nature. When the State eame into existence, those rales which were important from the angle of society were taken up by the State and their observance was secured by putting punitive sanctions. These rules took the shape of laws. But the set of rules which were very good for society andthe State could not ensure that their observance continued in their shape and are known as morals. Law as well as morals originated from same source, but in the course of their development, they dif- fered from each other. In Queen ws Dudley and Stephens, necessity oF moral necesty for preserving one life by killing a boy and eating him was held to be unjustified. When natural law theory was prominent in 17th and 18th centuries, it was argued that positive law must confirm to natural law. Morals were the test of laws. According to natural law theory, any law which does not confirm to natural law isto be disobeyed and a. government making such law is liable to be overthrown, In modern times, this proposi- tion does not hold good. ‘oral principles are often consid- ered to be the end of law. The aim of law is to secure justice which is based on morals. According to the sociologi- cal schoo! of jurisprudence, aw has always a purpose; it ia means to an end, that is, wel fare of society. This view appears to be at par ‘with the utilitarian theory of law which says that the immediate end of law is to secure social justice by securing harmony between rival claims and demands. ‘Law and morality are not the same, Many things may be immoral, but not necessarily illegal, such as live-in relationship. Khap panchayats were declared illegal and honour killings were condemned by the Supreme Court as being against laws and morality. ‘The law in a majority of cases mirrors moral- ity, although the percentage of morality may differ from one law to another. When mora~ lity can be enforced as part of law or through Jaw, then what isthe harm in enforcing moral principles in absolute? The punish- ment, on violation of pure moral principles, may be lighter or strict, and should be regu lated by proper legislation to be enacted by parliament, In view of this idea, the decision taken by the government of Iran in abolishing the morality police comes under shadow, espe- cially in the context of a vibrant democracy ike India w Justice Bhanwar Singh (far left) is a former judge of Allahabad High Court, and Dr NK Bahl is former District & Sessions Judge, UPIsrael Protests at vue ge dy Ses BATTLE F SUPREMACY The right-wing Netanyahu government's plan to control the judiciary has found resonance in India where a similar situation has muddied the waters By Sanjay Raman Sinha Cat tats S rain splashed the strets of Netanyahu’ coalition government's major “Tel Aviv, thousands of people plan to bring basic changes in the judiciary. gathered to protest against Many soe it as plan to gain control over the Israeli governments deci- the reins ofthe judiciary. In India too, simi NATIONWIDE OUTCRY sion to gain control over the lar accusations have been made aginst Thousands protesting in lael judlelay. The demonstrations the government. snto overhaul Remruipert of anailonwide: Tn Israel, the proposed changes were part the county's legal system outery against Prime Minister Benjamin _ ofthe Netanyahuis election promise in whichhe had proposed elected officials instead of “interventionist judges” in the judiciary. His plan envisages power to the Knesset or the Israeli parliament to override any verdict of ‘the judiciary by a majority of a mere 61 votes in the 120-member Knesset. It also plans to jettison the test of “reasonability” by which the apex court had nullified many govern- ‘ment decisions. More importantly the ‘wing government wants to install a practice of judicial appointments where it can app- oint judges ofits own liking. ‘The Israeli attorney general, appointed by the previous regime, had decried the on- slaught against the judiciary and said it was against democratic values and would disturb ‘the system of checks and balances. If this scenario sounds familiar, then re- call the Indian situation, Israel is at its 75th ‘year of Independence; India, its 76th. Both countries have rightist governments with a ‘conservative agenda. In Israel, the Netanyahu government ‘wants to scrap the judicial verdict which said that Israeli outposts in Palestine land were illegal. It also wants to curb socialist reforms and pro-LGBTQ decisions. In India, the gor- emment wants to be an “active and partici- pative” stakeholder in the judicial dispensa- tion, In recent times, the indian government has sharpened its attack on the judiciary and questioned the collegium system of reeruit- ing judges. It wants to have a greater say the recruitment process. Judges’ appoint ‘ment isa thorny issue and the government is ‘often accused of stymieing judicial appoin- ‘ees’ recommendations. ‘However, in India, the acrimony is more subdued and manifests itself as a pressure tactic by the government to get the best bar- gain in judges’ appointment. The judiciary, ‘on its part, is trying to protect its turf fierce- ly. Ithas never been easy forthe judiciary to ‘work alongside the government or be on an even keel, Over the years, various govern= ‘ments have tried to ride roughshod over the judiciary he power play and interventionist policy started from the time of first Prime Minister Jawaharlal Nehru. ‘The seniority criteria in the appointment of chief justice was flouted when Nehru app- ‘ointed Justice MC Chagla as the chief justice superseding Justice Patanjai Shastri who ‘was the seniormost judge of the Supreme Court then. This caused a strong protest by the apex court judges and the seniority prin- ciple was put in place. ‘Emergency saw the clamping of restric- > Prime Minister Benjamin Netanyahu inhis election promise had proposed elected officials instead of “interventionist judges” in the judiciary. His plan envisages power to the Knesset or the Israeli parliament to override any verdict ofthe judiciary by a majority of a mere 6] votes inthe 120-member Knesset. ONSLAUGHT ON JUDICIARY The Netanyahu government wants to scrap the judicial verdict which said that lsat Ccutposts (et) in Palstine land wore illegal [INDIA LEGAL | February 27, 2023 25BB Global Trends/ Israel Protests In India, the power play and interventionist policy started from the time of first PM Jawaharlal Nehru, who had appointed Justice MC Chagla asthe chief justice superse- ding Justice Patanjai Shastri who was the seniormast judge of the Supreme Court As prime minister, Indira Gandhi made vehement efforts to make inroads into the judiciary. The appoint- ment of Justice AN Ray as chief justice was one of the most controversial. He super- seded three senior judges. 26 February 27,2023 tions, and Prime Minister Indira Gandhi's vehement efforts to make inroads into the judiciary succeeded for a while. What pre~ cipitated this was that in 1971, her election vietory was conditionally stayed by the Supreme Court. She retaliated by imposing the Emergency: The appointment of Justice AN Ray as chief justice was one of the most controversial. He superseded three senior judges merely a day after the Courts deci- sion in the Kesavananda Bharati vs State of Kerala case. ‘When Gandhi suspended all basic rights during the Emergency, the Court in the ADM Jabalpur es Shivakant Shukla case supported the government diktat. However, Justice HR Khanna dissented, Following. Justice Ray’s retirement, Justice MH Beg, ‘was appointed as CJI, supersed.ing the se- niormost judge of the Court—Justice Khanna. This was seen as retaliation for Justice Khanna's strong dissent in the ADM Jabalpur vs Shicakant Shukla case. Bet= ween 1966 and 1977, Gandhi played around with the judiciary in a bid to contro it. ‘These exampies show how the executive has always been interested in working its ‘way into the judiciary. The Constitution has an inbuilt provision for insulating the judici- ary from executive interference. Article 50 states: “The State shall take steps to separate the judiciary from the executive in the publie services of the State.” Unlike the Comptroller and Auditor General and the Chief Election Commi- ssioner, the president is expected to consult the chief justice of India in matters of appointment of judges of High Courts and the Supreme Court. This insulates judicial appointments in high places from apparent executive interference. Furthermore, the doctrine of separation of powers is also an clement of the basic structure. In 1973, the Kesavananda Bharati case came ata time when the judiciary was facing ‘maximum onslaught from the government. It evolved the basic structure doctrine to safeguard the Constitution. The case is sig- nificant for its ruling that the Constitution can be amended, but not the basic structure, Furthermore, judicial review is one of the key elements of judicial supremacy and was defined as an element of the basie structure in the Minerea Mills ease (1980), These verdiets gave power to the judiciary to overturn executive fats or legislations if they are contrary to the spirit and provisions of the Constitution. Further, Article 13(2) says that the judiciary ean review any legisla- tive law made by parliament. Judicial review, among other things, is seen as an irritant by the government, and ‘when s0 called judicial overreach happens, a contfict situation arises. This isthe genesis of the judiciary-exeeutive elas. In the eonstitu- tional scheme of things, judicial review is seen asa form of check and balance and ‘ensures that no arm of the government ‘becomes too strong to disturb the system, part from the Constitution, judicial A= hhave created a strong bul- .wark to protect the judiciary. This includes the collegium system as developed by the Three Judges’ cases. The government ‘can amend the Constitution by introducing Bill in either House. The Bill must then be passed in each House by a majority of the total membership and not less than two- thirds of the members of that House present and voting. This means that either the government has an overwhelming major- ity in both Houses or manages to convince the Opposition to take part in the amend- ment process. However, even if the executive wants to change the Constitution by means ofa legis- lation, the judicial review factor can be invoked and governmental action be tested ‘on the touchstone of the Constitution. If the ‘amendment is found to be not in consonance ‘with the basic structure, then judicial wis- dom prevails and the Court ean strike down the amendment. However, ifthe government decides to rewrite the Constitution, then a new con- stituent assembly needs to be summoned. ‘This isa grey area and fraught with danger- ‘ous possibilities. India is still working under the civilised norms of constitutional democracy, and checks and balances at the parliamentary and judiciary levels to ensure that the boat isn't rocked. In that sense, the Israel situation will be ‘watched closely by India too. aJudges/ Post-retirement Appointments TO JUDGE OR NOT TO JUDGE Post-retirement sinecure may displease a section of politicians, but every colour of political party has been complicit in somewhat manipulating a small section of the judiciary to its own narrow end. Only drastic changes can make this go away By Sujit Bhar ——e nd HERE is a reason why Sup- the land, but the Constitution mandates that ‘ourt and High Court the judiciary has the principal role of pro- pointed by the tecting that rule of law and to ensure supre- he judiciary is also mandated the chief executive macy of of the country. Judges are con- to safeguard the rights of the individual and, stitutional appointees, follow- among other things, to ensure that democra ing Article 124, and hence cy does not give way to the predominance of wield authority and power that eannot be any individual or group. easly taken away by the legislature, This isa critical power balance, carefully ‘The legislature may lay down the law of scripted into the Constitution of the country,and the responsibilities ofthe judiciary in- clude maintaining of this balance. ‘According to Greek philosopher Aristotle, power is a two-way street. “What it lies in our power to do, it lies in our power not to do? he had said. Balance of power will, therefore, include oversight on the use or ‘misuse of power. The entire issue of the executive-judiciary clash in India ean be nar- rowed down to the purported use or misuse of power. And since those with power have the option of not using it, debate will remain ‘on whether consequent events in the publie domain were at all necessary. Just the other day, the executive's long hand in the appointment of judges was being examined, This has been agreed upon as un- due “influence”, though no methodology exists around the world where judicial app- ointments are entirely a judicial decision ‘Now the attention has moved to whether {judges should take up a sinecure of sorts af- ter retirement, offered by the executive/legis- lature. Technically, when a judge demits off- ice, he/she is within his/her rights to accept such offers. In India, a judge of the Supreme Court retires at 65, an age at which his/her intellectual acumen has peaked. Losing such intellect is a pity, and his/her talents and experience can be used in other fields This is a loophole through which the legislature inserts its probe. Senior Advocate ‘Arun Jaitley had said in parliament on Sep- tember 5, 2013: *..the desire of a post- retirement job influences pre-retirement judgements. It isa threat to the independ- ence of the judiciary” This may or may not be true, but this naked charge was placed before the public and now it has come back ‘to haunt Justice Syed Abdul Nazeer, who just retired from the top court bench and ‘was, in 39 days, appointed as the 24th gov- emor of Andra Pradesh—the third, since ‘the state split in 2014—by President Droupadi Murmu. ‘The storm of debate arises from the fact that Justice Nazeer was part of the bench. that delivered a favourable (to the current dispensation at the centre) judgment on the Ram Mandir-Babri Masjid dispute in 2019, “This gubernatorial assignment is seen by ‘the Opposition as a “reward!” for that verdict, though Justice Nazeer was involved in se- veral landmark judgments ineuding a dis- senting one in the triple talag (talaqre-bid-~ dat) case ‘As the lone Muslim judge in a mult-faith bench which heard the controversial triple talag case in 2017, Justice Nazeer and one other judge upheld the validity ofthe prac- tice of tripe talag based on the fact that i is permissible under Muslim Sharia Lave. The majority ofthe bench (3:2), though, barred the practice. Before moving further, it needs to be clarified what has happened to the other Judges on the Ayodhya judgment bench. The bench comprised Justices Ashok Bhushan, ‘SA Bobde, the then CJI Ranjan Gogoi, DY Chandrachud, and $ Abdul Nazeer. JUSTICE. GOGOL Of them, Justice Gogoi, who retired as the JI, on November 17, 2019, was, four ‘months later, nominated by the president > TRIGGERING A DEBATE Justice (etc) S Abdul Nazeer, ‘who just retired trom the ‘Supreme Court bench, was recently appointed as the ‘governor of Andhea Pradesh (ONE OF MANY Four months ater his, reticoment as the Cu, Justice Ranjan Gogoi was nominated by the president as a member ofthe Rajya Sabha. However, this was not unprecedented [INDIA LEGAL | February 27, 2023 29Prima Facie/Judges/ Post-retirement Appointments NEW ROLE Justice Ranganath Mishra (Cul from 1900 to 1991) was a Rajya Sabha member from the Congress party between 1998, ‘and 2004 NEW AVATAR dustice Baharut islam, a ‘Supreme Court judge from 1980 to 1983, also became a Rajya ‘Sabha member in June 1983, five months after Fis retirement ‘30 Februory 27, 2023 to be appointed as a member of parliament in the Rajya Sabha. This was not unprece- dented. Justice Ranganath Mishra (CJI from 1990 to 1991) was a Rajya Sabha member from the Congress party between 1998 and 2004. Justice Baharul Islam, a Supreme Court judge from 1980 to 1983, also became a Rajya Sabha member in June 1983, five months after his retirement. This, too, was the handiwork of the Congress. JUSTICE BOBDE Justice Bobde became the CII on April 23, 2021, succeeding Justice Gogoi. Despite being on that bench, he has not held any public office. Instead, he is Chancellor of ‘Maharashtra National Law University, ‘Mumbai, and the Maharashtra National Law University, Nagpur. JUSTICE CHANDRACHUD He is the sitting chief justice of India, having taken oath as the 50th chief justice of India in November 2022, succeeding Justice UU Lalit. He has a tenure of two years, until November 2024. JUSTICE BHUSHAN He retired as a judge of the Supreme Court in July 2021 and, four months hence, in ‘November 2021, was appointed as the Chairperson of the National Company Law Appellate Tribunal (NCLAT). It has to be made clear here that it has been laid out that the chairperson (of the NCLAT) “shall be a person who is or has been a Judge of the ‘Supreme Court or the Chief Justice of a High Court” This appointment was cleared by the Appointments Committee of the Cabinet in October 2021. JUSTICE NAZEER It has to be noted that he was the lone Muslim face on the Constitution bench that pronounced the unanimous verdict in the Ayodhya Ram Mandit-Babri Masjid dispute. It may be pertinent to also add that one pre~ retirement judgment of his included the batch of petitions that had challenged the ‘centre's 2016 demonetisation policy. ‘That judgment, it may be recalled, was split 4:1, with Justice BR Gavai having writ- ‘en the majority opinion for himself and for Justice Nazeer, AS Bopanna and V Rama- ‘subramanian, upholding the legality of the 2016 demonetisation. Justice BV Naga- rathna, however, was the “dissenter”, so to ‘say. She maintained that though demoneti- sation was well-intentioned and well ‘thought of, the manner in which it was car- ried out was improper and unlawful. ‘THE ARGUMENTS: ‘The counter arguments seem rock solid. Itis imperative for any judiciary to retain and promote its best talent. The waste of such talent and the ocean of experience associated ‘with it will be criminal. The judiciary’s power in this seems limited, with the retire- ‘ment age set at an unrealistic 65. ‘Today, when medical science has ad- vanced in leaps and bounds, 60 could poss! bly depict the new middle-aged. Longevity ‘has not just positively affected the body, it has also induced enhanced life for the intel- lect as well It is eommon to see politicians‘much above 70 ruling in fine fettle. How, then, are Indian judges expected to wither away at 65 In the US, judges are appointed for life. Understandably, there is huge legislative and executive influence in the appointment of a US judge, but more often than not, this no- retirement clause changes the judge on app- ointment. Except for some shameful exeep- tions, the judiciary in the US is more or less neutral, holding up the power and influence of the Constitution with no fear of retribution or no influence of post-retire- ment “benefits” Even if life appointments seem far- fetched in India, one argument could be effective. This isto increase the retirement age of High Court judges to 70 and of Supreme Court judges to 75, provided they prove to have maintained excellent physical and intellectual health. Any post-75 sinecure should not attract criticism. ‘THE COOLING-OFF PERIOD ARGUMENT One argument doing the rounds is of a ‘two-year cooling-off period. This makes little sense. This is not a corporate placement deal, where non-compete clauses in the con- ‘tracts may have influence. Ifa person of high intellectual calibre in a top constitutional post has any affinity to any political party or otherwise, no period of cooling off will change his/her spots. Such affinity, if any, ‘would have been developed through years and even decades if belief and trust in an ideology. That does not wash off so easly. SALARIES twill also be imperative to include within ‘his argument an enhancement of remunera~ tion, ete. including medical benefits) of judges, The remuneration and other issues had been enhanced last August, but they ‘were only ineremental. A judge has to be ey ‘The author writes on le; issues, apart from social commentary. He Executive Editor at India Legal satisfied that he and his family are well taken care of after he retires. This will allow him to refuse any carrot that the gov- emment may use. CONCLUSION Retirement policies of judges, even post- retirement benefits—such as housing, pen- sion, medical benefits—need a drastie change. The retirement age has to be increased with immediate effec, so that, at that age, the judge will have no excuse to move to another job or set of jobs. His/her post-retirement needs will have to be taken care of and any sinecure, if any, should only come from non-government institutions. m |, economic and corporate [AS PER RULE BOOK Justice Ashok Bhushan retired as a judge ofthe Supreme Court in July 2024 and in "November the same year, he \was appointed the chairperson ‘ofthe National Company Law Appellate Tribunal (OUT OF CONTROVERSY Despite being on the SC bench that gave the Ayodhya verdict, former Cul Juste SA Bobde has not held any publi office so far [INDIA LEGAL | February 27,2023 31/ Relationship STATE OF SAME SEX UNIONS Apart from hostility from the public regarding same sex marriages, the other big hurdles in granting marriage status to same sex couples will come while defining laws of adoption, guardianship and succession for them By Dr Abhishek Atrey ‘Santas Mra ECENTLY, the Kerala High the LGBT community in India. Court in a matter relating to ‘The LGBT community here has always the live-in relationship of two faced a very hostile behaviour from society. girls directed them to undergo Whenever a family comes to know that their ‘counselling, against which the son or daughter is lesbian or gay or trans- Supreme Courtissued notice _gender, they start feeling ashamed of him or and granted stay. This order _her. The moment physical changes start hhas triggered a new debate on the rights of _being visible, the families of such children February 27, 2023,start saving such a child from the eyes of the society. They stop sending him/her to play ‘with other children of his/her age. In school or college, it becomes quite impossible for such a child to study due to bullying by other children. The hostility does not end here. Even afterall such adversaries, if such a ‘child succeeds in getting some education, it is again very difficult for him/her to get a job in any private or government sector. There are no seats reserved for them in any indus- try or service. Asa result, the majority of transgenders and other people of the LGBT ‘community are being compelled to survive ‘on begging or prostitution. In ancient times, the LGBT community ‘was well recognised, and one example of this is Shikhandi in Mahabharata. Arjuna could succeed in killing Bhishma Pitamah only by ‘aking Shikhandis help. In the pictures de- picted in Khajuraho or Ajanta Elora, one can find lesbians and gays. Even in the Mughal period, there are several examples of rulers having transgenders in their inner circle. hese examples show that during those periods, LGBTs were not being seen as people of shame. It was only during the British period in 1862 when Sec- ‘tion 37 was inserted in the Indian Penal Code (IPC) which criminalised same sex relationship, even with consent. ‘The LGBT community had to fight along battle to regain ther rights, which were gi- ‘ven to them by the Delhi High Court in 2009 in the case of Naz Foundation and the same was affirmed by the Supreme Court in 2018 in the ease of Navtej Singh Johar, in ‘which afive-judge Constitution bench unan- imously struck down Section 977 ofthe IPC by declaring it to be violative of Articles 14, 15 and 21 of the Constitution. The result of these judgments is that now a same-sex rela- tionship ora live-in relationship of two same sex persons is legal in India In another judgment of NALSA in 2014, ‘the Supreme Court acknowledged the rights of the transgenders as the “Third Gender” and the non-binary identities and direeted the government to treat them as minorities and provide them reservation in jobs, eduea- tion and other amenities. Thereafter, in all educational services and other seetors and in r The LGBT community had to fight a long battle to regain their rights, which were given to them by the Delhi High Court in 2009 in Naz Foundation and the same ‘was affirmed by the Supreme Court in 2018 in Navtej Singh Johar. application forms, there isa third column of, “others” after male and female. Recently, the Supreme Court collegium recommended Saurabh Kirpal, senior advo- cate, to be elevated as a judge in the Delhi High Court, which was not accepted by the central government on the ground that he openly admitted being gay and a strong sup- porter of LGBT rights. This objection of the central government was rejected by the Supreme Court collegium and his name was again recommended for elevation on the sound that sexual orientation of a person cannot be a reason for rejection, After posi- tive views from the judiciary, cinema, media, entertainment industry, NGOs, intellectuals and reputed persons, the LGBT community hhas now started demanding recognition of ‘same sex marriage and the rights arising out of such marriage. Till 2017, a total of 29 countries have legally recognised same sex marriage. In 2000, the Netherlands became the first ‘country to recognise same sex marriage ‘through a parliamentary legislation. This ‘was followed by Belgium in 2003, Canada and Spain in 2005, South Africa in 2006, ‘Norway in 2008, Sweden in 2009, Ieeland, Portugal and Argentina in 2010, Denmark in 2012, Uruguay, New Zealand, France, > [INDIALEGAL | February 27, 2023 38HE Column/ Relationship Recently, the Supreme Court colegium recommended ‘Saurabh Kirpal, senior advo- cate, tobe elevated asa judge in the Delhi High Cour, which was nat accepted by ‘the centre on the ground that he openly admitted being gay anda strong supporter of LGBT rights. The objection was rejected by the Collegium and his name was again recommended for elevation on the ground that sexual orientation ofa person cannot be a reason forrejection. 4 February 27, 2023 ¥ Brazil, England and Wales in 2013, Scotland in Luxembourg in 2014, Finland, Ireland, Greenland and USA in 2015, Columbia in 2016, and Germany Malta and Australia in 2017, [Even after all these developments across the world, the battle of LGBT community for their right to marry goes on in India. We should not forget that a majority of Indians are still conservative with regard to family, society, caste, community and reli- gion. The community bonding of Indians is ‘much stronger than communities in most other countries. ‘A majority of Indians have faith in their religious preachings, whether they are Hin- dus or Muslims. Unlike European or Wes- ten countries, in India and especially in ‘Hindus, marriage is considered a sacrosanct, union of two persons. It is not only a union of two persons, but also a union of two fami- lies. The families of both the bride and groom celebrate the occasion of marriage as «festival in their family. Therefore, mar- ages cannot be said to be a private aflair as in the case of live-in relationships and is big public and social affair. No doubt, sex is ‘one of the most important part of a mar- lage, but the main purpose of marriage is to give birth to a new generation, to handover a surname to the nest generation, which is not possible in same sex marriages. The same sex couples cannot produce biological chil- dren, who can keep alive the name oftheir family ater them. ppart from marriage, the other big A‘ in granting marriage status ‘to same sex couples will come while defining laws of adoption, guardianship and ‘succession for same sex couples. People of India cannot trust to handover a giel child in adoption to a gay couple. Even if lawmakers of India or the judiciary give the right to ‘marry, right of succession, right of adoption ‘or right of guardianship to the people of the LGBT community, the society at large will never recognise such rights We should not forget that we ive in a country where women had been given equal rights in the properties of their parents by Hindu Suecession Actin 1955, but even today after a lapse of more than 70 years, parents do not give their properties to their daughters. Parents often write a will to bequeath their properties to their sons so that after their death, their daughters cannot claim any right in their properties against their brothers, and where parents die intes- tate, the brothers ignore objections from their sisters and divide all the properties among themselves. If any of the sisters claim any right in ancestral property, their brothers boycott them socially or they are ostracised, Its thus still a distant dream that Indian society will ever accept same sex marringes, regardless of the legal status. m ‘The writer is Advocate-On-Record, Supreme CourtBE Courts/ Censorship & Art VIRAL BACKLASH Artistic expression was once again under fire as a student of MS University was debarred for “objectionable” artwork. But courts have, time and again, come down heavily on such moral policing By Dr Swati Jindal Garg INTERPRETING ART Kundan Kumar Mahato (inset), a student at the Maharaja ‘Sayajrao University of \Vadodara's (above) Faculty of Fine Arts was ustcated and later arested fr creating ‘objectonablo” artwork 36 February 27,20: NY act of the mind that flows pure and free is art, for free dom is the soul of art. Going by this dictum, the Gujarat High Court in a recent judg- ‘ment quashed an order of MS University (MSU), Vadodara, to debar Kundan Kumar Mahato, a student of Masters of Visual Arts of the Faculty of Fine Arts (FFA), for “objectionable” artwork in May last year Stating that FRA was known forts “op- cen-mindedness" in fine arts “since the era of MF Husain’, and observing that the “role of gurus (teachers)” was more important, the Court rebuked MSU for conducting a “hasty and slipshod inquiry” without “taking the ‘onus’ of the incident which caused a ruckus ‘on the campus on May 5, 2022. ‘The petition was filed by Mahato and heard by Justice Bhargav Karia who held that MSU had “singled out” the student ‘without conducting a complete inquiry into the incident of May 5, 202, when yet-to-be- identified persons had made viral the photo- ‘graphs of the objectionable artwork. The Judge also considered the gravity of the ‘objection presented by Mahato’ advocate Hitesh Gupta who said that despite being present at the University head office beforeSpm on May 13, 2022—as directed by ‘MSU=his client was not given a chance to present his side before the officals ‘Coming down heavily on the University, ‘the Court asked: “What was the haste in de- barring him? How can you debar him, when the faculty members have not been suspend- ed? The fact-finding committee report of ‘MSU is very clear that the student has not, taken the photos that went viral. So, who ‘took those pictures?” ‘The Court also asked about the status of the inquiries against the faculty members as ‘well as the university's inquiry into who ‘made the photographs of a confidential exam viral, Stating that MSU's replies to the nature of the inquiry had been dissatisfacto- 1 the Court added: “A very rapid and slip- shod inquiry is conducted... action ean be ‘taken only afterall inquiries are conducted. simultaneously, including that against the faculty. How can you single out the student? “The artwork isa personal perception—it was not a public display. You (MSU) could have failed him in the internal exam stating that this is derogatory. Itis not a major offence. ‘You have to justify your action.” Stating that universities cannot curtail freedom of artistic expression in this way, ‘the Court allowed Mahato's petition and ordered that he should be allowed to attend classes. Incidentally, Mahato had received a gold medal for his acaderie performance at BHU’ Bachelor’ course of Visual Arts from 2017-2021. “The artwork in question was created by ‘Mahato for an internal exam scheduled on May 2, 2022. Even though he had immedi- ately removed the artwork after being advised by his teachers, on May 5, a separate public display of artworks for second-year students was held, during which the photo- graphs of Mahato’s artwork beeame public and created a furore and he was debarred. ‘Mahato then approached the High Court ‘wherein he relied on the report ofthe fact- finding committee, dated May 9, which had also held the faculty responsible for the ruckus. As per the committee report of ‘May 9, 2022, the controversy took place ue to a lack of monitoring and guidance by teachers. is not the first time that artistic I expression has been under fire in India. Way back in October 1996, Bajrang Dal volunteers broke into Herwitz gallery in Ahmedabad and destroyed a ‘number of rare and acclaimed paintings by [MF Husain, It was said at that time that Husain had painted Goddess Saraswati in the nude and therefore, hurt religious senti- ‘ments, Some of his other paintings that had also been tagged as obscene were of Bharat ‘Mata, naked Sita sitting on along tail of Hanuman and Goddess Durga in the nude hhaving sexual intercourse with a tiger, to name a few. Similarly, on May 12, 2007, a final year student of the Faculty of Fine Arts at Maha- ‘aja Sayajirao University in Vadodara was arrested and changed under Sections 153A, 114 and 295 of the Indian Penal Code for promoting enmity between different groups ‘on the grounds of religion, rave, ete, through his paintings. He was denied bail and transferred to Central Jail, but released on bail after four days of imprisonment due to > The definition of obscenity came up first fr considera- tionin the case of Ranjit D. Udest, wherein a person was convicted for seling the unexpurgated version of DH Lawrence's book Lady Chatterley’ Lover, The Gujarat HC (lett) quashed the university's orderto debar Mahato and ordered that he shouldbe allowed to attend classes The Cour observed that the university had "singled out” the student without con- ducting a complete inquiry into the incident. INDIA LEGAL | February 27,2023 37Courts/ Censorship & Art Thisis not the first time that artsticexpession has been under ir in india, Wayback inOctober1996, Barang Dal volunteers broke nto Herwit aller in Ahme- dabad and destroyed a num- ber of rare and acclaimed paintings by MF Husain (above). twas said at that time that Husain ad painted Goddess Saraswati inthe rude and therefore, hurt religous sentiments, ‘38 February 27, 202 public protests. Even then, the student’ arrest had raised many questions: Is an artist no longer free to depict what he/she likes? Like films, does Indian art also have to pass through a “Cen- sor Board”? Can these paintings be classified as obscene, hurting religious sentiments and be immoral? And ultimately, who will be the judge to determine whether something is ‘obscene or not? ‘Technically speaking, obscenity may be defined as something which, applying con- temporary community standard, appeals to a prurient interest in sex; portraying sexual conduct in a patently offensive way and lack- ing any serious literary, artistic, political or scientific value. In India, “obscenity” has been defined under Section 292 of the IPC. After its amendment in 1969, obscenity was defined as that which is lascivious or appeals to prurient interest or which has the tenden- cy to “deprave” and “corrupt” those who are likely to be exposed to it. Before its amend- ‘ment, the provisions lacked any definition of obscenity T he definition of obscenity came up first for consideration in the ease of Ranjit D. Udeshi, wherein a person was convicted for selling the unexpurgated version of DH Lawrence's book Lady Chatterley’s Lover. This case relied on the Hicklin Test as laid down in the 19th century by Chief Justice Cockburn in Rex es Hieklin. ‘The Hicklin Test defines obscenity as that which has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands ‘the material may fall. ‘The Supreme Court, in this ease had, after much deliberation, declined to treat the ‘work asa whole and instead chose to focus ‘on the impugned passages, solely and exclu- sively. However, it went on to say that where art and obseenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its ‘obscene content. However, in the case of Chandrakant Kalyandas Kakodkar, the Court refused to tweat the passages alleged to be obscene in isolation and instead, stressed on the need to treat the impugned passages in the overall context of the work. It was stressed that the standards of contemporary society in India were fast changing. Adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of love, sex and romance. If a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious. ‘Then came the ruling in Samresh Bose wherein it was said that the test to hold in ‘our county (with regard to community mores) is that obscenity without a pre-pon- erating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating sex in a manner that appeals to the carnal side of human nature. ‘Time and again, courts have come down heavily on “moral police” which try to curtail freedom of artistic expression. While some art works may cause discomfort and un- pleasantness, that alone cannot be a ground to curb artistic freedom and ban it. If there is no freedom of expression, then the beauty of life itself is lost. m —The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts «and tribunals in Delhits/ Forests BROWNING OF DELHI The Delhi High Court recently pointed out that the forest cover in Delhiis reducing drastically. The bench asked the additional solicitor general to personally look into the matter and also the status of pending cases in the Supreme Court on similar issues LOSING GREEN COVER Last year in January, the Forest ‘Survey of India report showed ‘hat Delhi has lost 0:44 sq km of forest cover since 2019 February 27, 2023, N February 1, the Delhi High Court, while hearing a 2015 suo motu public interest liti- ing to air pollu- expressed con- cem over the reduetion in forest cover in the national capital. The Division Bench of Chief Justice Satish Chandra Sharma and Justice Subra- ‘monium Prasad said that Delhi is fast losing its forest cover and injustice is being done to nature. The Bench also asked Additional Solicitor General (ASG) Aishwarya Bhat to personally look into the matter and also sought information from her about the sta- tus of pending cases in the Supreme Court on similar issues “This isa case highlighting that the forest cover in Delhi is reducing drastially and buildings are being constructed around the central ridge area and that encroachments around Asola sanctuary are not removed. Whether the matter pending in the apex court has taken care ofthe forest cover of Delhi to02" the Court asked the ASG. ‘The ASG said that the report in the mat- ter before the apex court will apply tothe ‘whole country and is not specific to any state, even though the matter arose out of ‘West Bengal. “There has been no hearing in the matter for some time, the ASG said. The Court requested the ASG to look into the matter and said that Delhi is losing forest cover like anything. “We are keeping the matter after four weeks. The amicus has done a great job, and he has brought all minute details to our notice. We feel that injustice is being done to nature. Mountains, rivers and forests have to be saved for the ‘coming generations.” The Court asked the authorities to explain the reason for defiance of is earlierThe amicus curiae in the matter apprised the High Court about the loss of forest cover, especialy in areas around the sola sanctuary (above) the alrprt andthe presidents house. He also tated thatthe said areas ae being surrounded by slums. orders passed in the matter and listed it for hearing on March 13. It further asked the centre, the Delhi government, the forest department and the Municipal Corporation ‘of Delhi (MCD) to explain in an affidavit how a multi-storeyed building in the Ridge area got permission for the construction of flats. ‘The amicus curiae, Senior Advocate Kai- lash Vasdev, appointed in the matter, took ‘the Court through photographs of Delhi, ‘which highlighted the loss of forest cover, especialy in areas around Asola sanctuary, the airport and the president’ house. He also stated that the said areas are being sur- rounded by slums and pointed out that the ‘Yamuna river bank “today is one huge ‘unplanned sum’, ‘Vasdev further said that permission should not have been given to construct buildings in areas that were protected. He referred to an advertisement regarding the sale of flats in Chattarpur and said: “Itis under the Ridge; you can't build... there is a prohibition” “L think a notice should be issued to MCD to explain this. This whole area used to be a forest area,” he added. “This isthe airport area, the whole Dwarka belt, please see ‘whats being done along river Yamuna, these are all total illegal colonies which have come up. They are saying 20% green cover i stil there. Please show me, Please see Ghaziabad and NCR area. Ifths is how this is going to be developed, then there will be nothing which we wll give to our future generations except pollution and illness” he argued. he national capital has lost forest "Teens ot Union territories have shown an increase in overall forest cover. Last year in January, the Forest Survey of India report showed that Delhi has lost 0.44:sq km of forest cover since 2019. The report also showed that while Delhi recorded a slight decrease of 0.44 sq km in its forest cover, it recorded an inerease of 18 sq km in its total tree cover. This, the forest department said, is due to large-scale plantation drives. ‘The capital recorded an increase in its green cover by 17.6 sq km—with 342 sq km (23.06%) of Delhi’s total geographical area (of1,483 sq km now under green cover— according to India State of Forest Report (ISR) 2021. A senior official ofthe forest department said that despite a drop in the total forest cover, Delhi still had “quality” forest cover. “We have actually seen an inerease in moderately dense forests, which are denser than open forests. There has been alight reduction only in open forests. But > JINDIA LEGAL | Februory 27,2023 41BE Courts/ Forests The Forest Survey of India report has also shown that while Delhi has recorded a slight decrease of 0.44 sqkm in ts forest cover, there has been an increase of 18sqkminits total tree ccover. This, the forest department said, is due to large-scale plantation drives inthe capital. 42 February 27,2023 this means the quality of our denser forests, has increased, said the official, attributing annual tree plantation drives to an increase in Delhi’ overall tree cover. [A very dense forest is one with a canopy density of 70% or more, moderately dense forests have a canopy density between 40% and 70%, while open forests have a canopy density between 10% and 40%, Delhi's green cover as per the 2019 report was 324.4 sq km (21.88% of the total geographical area), while it was 305 sq km (20.6%) as per the 2017 version of the biennial report. cording to data from ISFR 2021, Delhi's very dense forest has re- ‘mained constant at 6.72 sq km in the last two years, However, there has been an inerease in the moderately dense forest, increasing from 56.42 sq km in 2019 to 156.60 sq km. At the same time, there has been a reduction in open forest area from 182.80 sq km in 2019 to 131.68 sq km in 2021—a reduction of 0.62 sq km. Delhi now has 147 sq km of its total area under tree cover, an increase of 13.9% from 129 sq km. in 2019. “To caleulate green cover; Delhi's total area under tree cover and forest cover categories is combined, both of which exclude shrubs and infant saplings. These are generally not reflected in satellite imagery, which requires saplings to be around 6-8 feet tall and have dense foliage. Forest cover is the total geographical area declared as forest by the government. As of 2021, the total forest cover in India is 80.9 million hectares, which is 24.62% of the total geographical area of the country. There isa 1,540 sq km increase in forest cover over 2019. Madhya Pradesh has the highest forest cover as per the area, followed by Arunachal Pradesh. Mizoram has the highest forest co- ver in terms of percentage of total geograph- ical area. ‘The Ministry of the Environment, Forest ‘and Climate Change used the mid resolution satellite data on LISS-III data from Indian remote sensing satellites. Union Minister for Environment, Forest and Climate Change Bhupendra Yadav had released the Indian forest survey report 2021-22 on January 13, 2022, The maximum inerease in forest cover ‘was witnessed in Andhra Pradesh (647 sq, ‘km), followed by Telangana (632 sq km) and (Odisha (637 sq km). Increase in forest cover thas been observed in open forest followed by very dense forest. The top three states show- ing an increase in forest cover are Andhra Pradesh (647 sq km), followed by Telangana (632 sq km) and Odisha (537 sq km). ‘Area wise, Madhya Pradesh has the largest forest cover in the country, followed by Arunachal Pradesh, Chhattisgarh, Odisha and Maharashtra. In terms of forest cover ‘as percentage of total geographical area, the top five states are Mizoram (84.53%), ‘Arunachal Pradesh (79.3%), Meghalaya (76.00%), Manipur (74.84%) and Nagaland 73.90%). Seventeen states/UTs have above 33% of the total geographical area under forest cover. Out of these states and UT, five states/UTs, namely Lakshadweep, Mizoram, ‘Andaman & Nicobar Islands, Arunachal Pradesh and Meghalaya, have more than 75% forest cover while 12 states/UTS, namely Manipur, Nagaland, Tripura, Goa, Kerala, Sikkim, Uttarakhand, Chhattisgarh, Dadra & ‘Nagar Haveli, Daman & Diu, Assam and ‘Odisha, have forest cover between 33% and 75%. —By Adarsh Kumar and India Legal Bureaught/ Medical Negligence There is a growing tendency to accuse the doctor for an adverse oruntoward event. Nothing can be more professionally damaging and emotionally draining than being accused of any such action. Now, doctors are increasingly defending themselves in courts OCTORS undertake the risk of dealing with the most intri- cate, delicate and complex ‘machine on earth—the human body. Any surgical procedure or medical intervention on this highly complicated machine carries some inherent risks, There is always the chance that the treatment does not go as planned. When things go wrong, itis not always the fault of the doctor. A complica tion by itself does not constitute negligenee. ‘There is a big difference between an adverse or untoward event, and negligence. How- ever, there is a growing tendency to accuse the doctor in case of an adverse or untoward event. Nothing can be more professionally damaging and emotionally draining than being arrayed as an accused in any such action. ‘The Kerala High Court made the above “observation while hearing criminal appeals by three doctors and three nurses convicted bya lower court under Sections 304A (caus ing death by negligence) and 201 (causing disappearance of evidence of offence, or siving false information to sereen offender) read with Section 34 (acts done by several persons in furtherance of common inten-tion) ofthe India Penal Code (IPC), 1860, for medical negligence. A single judge bench of Justice Kauser Edappagath held that a surgeon under fear of facing criminal prosecution in the event of failure for whatever reason—whether due tohis fault or not—eannot perform at his best. The judicial forums, in the process of ‘ixing parameters of liability in cases of ‘medical negligence, must aim at striking a careful balance between the autonomy of a doctor to make judgments and the rights of| 2 patient to be dealt with fairly, recognizing the complesity of the human body, inexact- ness of medical science, the inherent subjec- tivity ofthe process, and genuine scope for error of judgment. However, while dealing ‘with criminal prosecution for medical negligence, the trial cours often ignore these principles, he case involves a woman, 37, who "Linn li pital at Punalur, in September 2006, ‘to undergo sterilization by laparoscopy, a procedure for permanent birth control, with the hope that she could safely return home after a few hours. Hours after the surgery, she developed respiratory complications and ‘was put under oxygen support. Finally, her life could not be saved. While acquiting the accused doctors and nurses ina case alleging medical negligence, a single judge bench of Justice Kauser Edappagath (inset) ofthe Kerala High Court observed that a medical professional cannat be held liable simply because things went wrong due to rmischance or misfortune. ‘The Vanchiyoor police registered a crime ‘under Section 174 of the CrPC based on a statement given by the uncle of the deceased alleging medical negligence on the part of the doctors, who conducted the surgery and ‘administered anesthesia, as well as the nurses who assisted them. Later, the Punalur police registered a case and conducted the investigation. After investigation, a final report was filed at the Judicial First-Class Magistrate Court III, Punalur, against the six accused. who are doctors and nurses at the hospital “The magistrate, after complying with the statutory formalities, committed the case to the Additional Sessions Court V, Kollam, for trial and disposal, After a full-fledged trial, the lower court found that the offence under Section 304 ‘of IPC was not viable. However, it found ‘that there is evidence to show that the accused had committed offences punishable under Sections 304A and 201 r/w 34 of IPC, and they were duly convicted. All of them ‘were sentenced to undergo simple imprison- ment for one year for the offence under Section 3044 of IPC and simple imprison- ment for three months for the offence under Section 201. Negligence, simply put, is a breach of duty of eare resulting in injury or damage. > INDIA LEGAL | February 27,2023 45BE Spotlight/ Medical Negligence The Supreme Court in Syad Akbar vs State of Karnataka (1980) opined that where negligence is an essential ingredient ofthe offence, the negligence to be established by the prosecution must be culpable or gross and nat the negligence merely based ‘upon an error of judgment. 46 Februory 27,2023 Perse, carclessness is not culpable or a sround of legal liability, except in those cases where the law has imposed a duty of careful- ness. The duty of care implies the responsi- bilities of individuals towards others within society. The duty of care may be understood as a legal obligation imposed on an individ- ual requiring adherence to a standard of rea- sonable care while doing any act, particular- ly when lack of care could cause harm to someone else, When there is a legal duty not to do a thing on purpose, there is commonly legal duty to take care not to doit acciden- tally, the High Court observed. urther, the Court noted that in civil Fi issesoetenets tat ition imposed on an individual requiring that he/she exercises a reasonable standard of care while performing any act that could foreseeably harm others, In medical practice, the law has imposed a duty of care on doc- tors for treating patients. The duties that a doctor owes to his patient are clear: They include a duty of care in deciding whether to undertake the case, a duty of care in decid- ing what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives the patient a right of action for negligence. “The jurisprudential concept of negli- sgence differs in civil law and criminal law. Ordinary negligence is such failure to use care as would render a person civilly, but not criminally liable. Criminal negligence is a sgreater failure and a greater falling below the standard of care and renders a man guilty criminally. The degree of negligence should be much higher for an act to amount to criminal negligence. Negligence not of such a high degree may provide a ground for action in civil lav, but eannot form the basis, of criminal prosecution. The factor of gross- ness or degree does assume significance while drawing a distinction between negti- sence actionable in tort and negligence pun- ishable as a crime” the Court said. ‘The Court observed that every death of a patient cannot, on the face of it, be medical negligence. There must be sufficient evi- dence to prove that the death is due to the alleged medical negligence. The death should be the direct or proximate result of the negligent act alleged. A medical profe- ssional eannot be held liable simply because things went wrong due to mischance or mis- fortune. A mere deviation from normal pro- fessional practice is not necessarily negli- gence. Nor could mere accident or untoward incident be termed negligence, also an error of judgment is not negligence per se. To con- viet a medical professional for eriminal neg- ligence, the prosecution must prove culpable and gross negligence beyond a reasonable doubt. It must also be shown that the med- ical professional did or failed to do some- thing which, in the given facts and circum stances of the case, no ordinary skilled ‘medical professional would have done or failed to do.“To impose criminal liability under Section 304A of IPG, itis necessary that the death should have been the direct result of a rash or negligent act of the accused. That act ‘must be the proximate and efficent cause ‘without the intervention of another's negli- _gence. The liability under this Section is ere~ ated on the assumption of foresceability of consequences that could result from a ‘wrongful act. Thus, for fastening the lability of criminal negligence on the accused, the administration of anesthesia, be it general or spinal, must be the direct or proximate cause of death, the Court observed. This is, no doubt, an unfortunate case. But simply beeause a patient has not res- ponded favourably to a treatment or a sur- gery has failed, the doctor cannot be held negligent per se for the offence under See ‘ion 304A of IPC unless the prosecution establishes beyond reasonable doubt the cul- ‘pable and gross negtigent act on his part. ‘That act must be the proximate or direct, ‘cause of death of the patient. Such evidence is lacking in this ease, the Court remarked. It found the accused persons not guilty of the ‘offences charged against them and accord- ‘ingly acquitted them. 7 iiss Serta ‘on the “Bolam test” Bolam vs Friern Hospital Management Committee (1957) is landmark English ease on medical ne ‘gence, which laid down the principle that “a doctor is not guilty of negligence i he has acted in accordance with a practice accepted as proper by a responsible body of medical ‘men skilled in that particular art..” This principle has been widely accepted as deci- sive ofthe standard of care expected from ‘medical practitioners. ‘The courts in India, inchuding the apex ‘court, invariably applied the Bolam Rule as a ‘touchstone to test the pleas of medical neg gence. In Jacob Mathew (supra), a three- {judge bench of the apex court upheld the standard of the ordinary competent medical practitioner exercising an ordinary degree of professional skill, as enunciated in Bolem Gupra). It was held that the standard of care ‘must be in accordance with “general and approved practice”, The medical negligence jurisprudence in Indias based on the “Bolam test”. Bolam vs Friern Hospital Management Committee (1957)isa landmark English case on medical negligence. Itlaid dawn the principle that “a doctor s not guilty of negligence if he has acted in accordance with a practice accepted as proper | byaresponsible body of medical men skilled in that particular art.” ‘The question of degree has always been considered relevant to fasten criminal liabili- ty on medical negligence. The Privy Council in John Oni Akerele vs The King (1943) put the standard for fastening criminal lia- bility on a high pedestal and required the ‘medical negligence to be “gross. It was held that a doctor is not criminally responsible for a patient's death unless his negligence or ‘incompetence went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State. ‘The apex court in Syad Akbar vs State of Karnataka (1980) opined that where negli- gence isan essential ingredient of the offence, the negligence to be established by the prosecution must be culpable oF gross and not the negligence merely based upon an error of judgment. In Dr. Suresh Gupta vs Govt. of NCT of Delhi (2004), the apex court held that the degree of negligence required should be gross or reckless. A mere lack of necessary care, attention or skill was considered insuf- ficient to hold one criminally liable for negli- gence. It was observed that mere inadver- tence or want ofa certain degree of care ‘might create civil liability, but will not be sufficient to attract criminal liability. m —By Shivam Sharma and India Legal Bureau [INDIA LEGAL | February 27, 2023 47(arene Merchants of Death ven as the death tll inthe devas ilies Fis he lloot roving iat cana oo many ad fafa ‘or homeless has begun. Now that the hope of finding any survivor has faded, the focus ison the root cause of so much destruction and death—unsafe buildings. “Ten days after the two biggest earth ‘quakes in the country’s history, Turkish officials announced arrests against build- ing developers. Turkish justice officials are targeting contractors allegedly involved in shoddy and illegal construction. (One major contractor Yavuz Karakus ‘was arrested while he was caught trying to escape to Georgia, He built many of the apartment buildings in the disaster area which collapsed like houses of eards when. the earthquakes struck. Another contrac~ tor of a 14-story luxury apartment build- ing in Hatay which collapsed has also been arrested while others are being, rounded up. Turkey announced the ere- ation of “Earthquake Crimes Invest tion” bureaus that will collect evidence against suspects and check building and ‘oceupation permits ‘The crackdown is one way of President Recep Tayyip Erdogan reacting to the Turkey's President Recep Tayyip Erdogan (centre) and a survivor speak atthe cy center destroyed by earthquake in Kahramanmaras in southern Turkey public anger and horror stories that have emerged from the rubble, but it has, inad- vertently, also deflected attention away from government officials who had app. roved construction of the inferior build- ings, allegedly through bribe-taking. ‘Many questions have arisen on the quality of the building materials used, especially cement and steel which were found to be of inferior quality or not used in the req- uisite manner or amount. These infrac- tions of existing building codes also included building heights and number of floors, which were also against regulations, Such massive corruption that led to such an unprecedented disaster in a region prone to earthquakes, has been major setback for Erdogan coming just ahead of parliamentary and presidential elections in May. He has pledged to re- build the cities affected, but the corrup- tion allegations are serious enough for his government to be ousted. Which is why he could use itas an excuse to postpone the elections, on the plea that he needs to focus on the recovery and rebuilding in an area of 300-mile radius that was home to 13.5 million Turks. Erdogan referred to isaster of the centu- the carnage as the xy! but it could also give hima lifeline to extend his political earcer. Haley's Comet nin born Nikki Haley’ (cight and isis amenzon tte will nun for president in 2024 makes her the fst Republican to challenge Donald Trump for the party’s nomination. Isshe a serious presidental candidate? aly, 1, rose to national prominence in 2010, when she became the youngest xovernorin the US, aged 39. Her vietory inher home state of South Carolina made history on multiple fronts—she was the conservative southern states first ferale and Asian-American governor. Her vietory led to her being hailed as a rising Republican star who could change the partys male-dominated mage. Her two terms as governor, between 2011 and 2017, give an indication of where she stands on major issues. ‘She developed a reputation asa ‘mainstream conservative and busi- ness-fiendly leader who focused on attracting major companies to South Carolina, She has described herself as pro-life and supported legislation in South Carolina designed to eur ‘access to abortion, She also cracked down on illegal immigration in her first year as governor and has since criticised President Biden's border policies. She has said she supports—The Rising Tide he United Nations has warned "T ststisesiron faster since 1900 and their relent less increase puts countries like Bangla-

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