http://www.thehindu.com/opinion/lead/of-liquor-bans-and-the-ballotbox/article8458313.

ece#comments

OF LIQUOR BANS AND THE BALLOT BOX

The moral rhetoric of prohibition is clear. The requirements of revenue are equally
demanding. The real silence is about how to moderate the consequences of alcoholism.
Alcohol and elections seem to be the two great signifiers of Indian politics as they both mark
its deep sense of hypocrisy, populism, cynicism and realism. In fact, the talk of prohibition
reminds one of the debates in our Constituent Assembly. Prohibition, more than khadi, was
often the ideological plank Gandhians identified themselves with. During the Constituent
Assembly debates, the Gandhians, in their puritanical way, wanted to introduce prohibition as
part of the Directive Principles of the Constitution. In this, they, the Gandhians, were almost
strict and correct in their attitudes.
But it did not go unchallenged. this is a vicious one. It seeks to interfere with my
religious right. Whether you put it in the Constitution or not, I am not prepared to give up my
religious privileges, tribal member Jaipal Singh said during the debate on November 24,
1948, mentioning the fact that consumption of liquor brewed from rice was part of a tribal
religious tradition. Dr. B.R. Ambedkar clarified that any future law on prohibition would be
applicable in tribal areas only according to the restrictions imposed by the Sixth Schedule of
the Constitution.
My friend, the scientist C.V. Seshadri, once said that one has to look at alcohol consumption
especially in a slum with a different eye. He reminded me that humans have benefitted from
the process of alcohol fermentation for thousands of years and that it is one of those
wonderful science discoveries. The very chemical process of fermentation which
provides koor is also what adds nutritious value to rice batter preparations. Fermentation is a
great slum science. It is just that it is an uncontrolled science and a bootlegger tends to
adulterate drink with other ingredients which results in an almost toxic commodity. Dr.
Seshadri advocated that testing laboratories be set up to check the quality of alcohol.

Politics

of

democracy,

poverty

I remember an activist friend of mine, a Marxist, making a case for alcohol. He mentioned
how labourers heaved and carried enormous sacks in a godown and challenged me to do this.
His argument was that in order to lift such a heavy object, you have to numb your senses.
Without the numbness alcohol induces, you cannot be a labourer, he argued.
I began with these examples with a purpose to argue that while drink is a part of folklore,
prohibition has a different logic. It is a part of the Indian politics of democracy and the
politics of poverty that we must try and understand. Prohibition seeks to ban the production
and consumption of alcohol in an attempt to control the social consequences of alcoholism.
Banning the consumption of alcohol has been a part of electoral politics. Many people falsely
locate it as a vestige of Gandhian ideology. Prohibition is part of the symbolic politics of
India where we create official diktats in order to conceal a series of epic violations. But the
logic and hypocrisy of prohibition lies in the fact that it helps get electoral support, especially
that of women. It is often contended that the former Tamil Nadu Chief Minister and founder
of the All India Dravida Munnetra Kazhagam M.G. Ramachandran rode to power as he was
aware of the nuances of prohibition politics.
Yet, prohibition creates a sort of backstage where the curtains need to be drawn back and the
reality examined. I remember a well-known film hero in Tamil Nadu whose life is a rags-toriches story. Once asked what profession he would have chosen had he not become a star, his
quick reply was, a bootlegger or a smuggler. It is these two trades, if one can call them so,
that have created the great economies of the Indian slum. The impact on corruption has also
been deep. Along with mining, smuggling and trafficking, prohibition also created the great
trades of the informal economy. It was even a part of Bollywood, where the Rolex watch
and the Johnnie Walker bottle were identified as two prominent symbols of politics. The
slum too became the scene for this theatre. The pathos lay in the fact that the abuse of
womens rights became concomitant with alcohol consumption. Adulteration of alcohol
became an issue too as a result of hooch tragedies.
There was also an ethnicisation of this crime. Minority groups unable to find employment
took to bootlegging.

Its

policing,

with

loopholes

Prohibition, as sociologists will tell you, never works completely. It is a policing system with
too many loopholes. The story of Keralas efforts to introduce prohibition is a clear example.
Let me elaborate. The Kerala government introduced graded prohibition, arguing for the
eventual idea of a liquor-free State. It did so by restricting the provision of liquor to be served
only in five-star hotels. Yet, one could not quite decide whether liquor was the cause of
Keralas social problems or a symptom of a wider social breakdown brought about by
change. The Supreme Court upheld the governments decision while contending that
introducing prohibition was a difficult task. In fact, governments and politicians in the South
present it like the new myth of Sisyphus where prohibition is introduced with fanfare only to
be quietly withdrawn once it begins to affect the revenues of the State. In fact, prohibition has
an electoral seasonality where politicians, like eager boy scouts, make the promise of
prohibition only to abandon it later. The tourism industry is often cited as a rationale for
withdrawing prohibition, but what liquor permits in five-star hotels do is to create, a some
are more equal than others idea of alcohol consumption. The Kerala government bans the
consumption of hard liquor but permits the consumption of beer and wine. The court itself
read this decision as a two-step gateway to more consumption. It is clear that the government
is caught between two constituencies a civil society of social workers and religious groups
afraid of familial breakdown on the one hand and a tourism industry afraid that tourists may
stay away from a puritanical Kerala on the other.
Banning alcohol consumption also increases corruption. In Kerala, the bar owners, in their
case before the Kerala government, argued that they had paid crores of rupees in the form of
bribes to various leaders. In fact, prohibition becomes like a stylised governmental play
which eventually borders on slapstick. Yet, what is interesting is that no one looks at the
relationship between a breakdown of social norms and values, and alcoholism. Prohibition
seems to be a pious, quick-fix solution which quickly comes apart, and then waits for
someone to put it back together before the next election.
As

electoral

strategy

Elections also bring out the some are more pious than others strategy of electoral politics.
Politicians know that enforcing prohibition finds resonance with the large women

constituency. There is always an element of populism. For example, Tamil Nadu took over
the sale of alcohol. The enormous revenues accrued provide the support for its other subsidy
programmes. In fact, piety and populism are what drive all parties. They realise that a
reintroduction of prohibition will reopen a Pandoras box, giving a huge lead to the party that
proposes it first. All parties wish to tap votes around liquor tragedies; all parties also realise
the farce of prohibition.
The problem of prohibition has become a governmental morality play. The government
cannot play its populist games without the subsidies that the sale and consumption of alcohol
provides. The general trend will be to move from prohibition to regulation. Regulation is a
more flexible game where piety and populism can play out their respective parts in parallel
silos.
It is in this context that Chief Minister Nitish Kumars decision to introduce prohibition in his
State, Bihar, has to be examined. Data from surveys done by the Centre for the Study of
Developing Societies show that Mr. Kumars political support base comprised largely of
women. Women are in the forefront of the protests against the consumption of alcohol as it is
they who usually experience firsthand the consequences such as domestic violence.
Therefore, Mr. Kumars wish to consolidate this constituency is understandable. But there are
problems of governance especially in a State not known for ideal law and order control. The
danger of imposing prohibition will be to create a crime wave which consolidates itself
around prohibition, as it happened previously around mining. Prohibition becomes a sham
especially where bootleggers are concerned.
The moral rhetoric of prohibition is clear. The requirements of revenue are equally
demanding. The real silence is about how to moderate the consequences of alcoholism. Civil
society and state must enter into a new conversation that goes deep into an understanding of
social life and its possibilities. Knee-jerk moralism or instrumental politics is the last thing
the issue around the consumption of alcohol or governmentality needs.
Shiv Visvanathan is Professor, School of Law, O.P. Jindal Global University.

http://www.thehindu.com/opinion/lead/its-about-propriety-notconstitutionality/article8752584.ece

ITS ABOUT PROPRIETY, NOT CONSTITUTIONALITY

The Delhi Assemblys Bill to protect the appointment of 21 parliamentary
secretaries from disqualification under the office of profit clause is
legitimate. It can be criticised politically, but not legally
The brouhaha over President Pranab Mukherjee withholding assent to the disqualification
removal bill passed by the Delhi Assembly has only obfuscated the real issue. The electronic
media has been discussing it with a degree of excitement which is seen only when there is a
war between India and Pakistan. The media made us believe that the disqualification of the
21 unfortunate MLAs of the Aam Aadmi Party is imminent and consequently the fall of the
Delhi government. The opinions of some legal experts that now the decision of the Election
Commission on the disqualification is just a formality added grist to their mill.
Difficult

term

to

explain

Let us look at this issue dispassionately and objectively. The issue is whether the 21 MLAs
who have been appointed as parliamentary secretaries are holding an Office of Profit under
the government. If the office of parliamentary secretary is an office of profit under the
government then they are liable to be disqualified. But this issue is at present before the
Election Commission, which will decide it after proper hearings.
What the President refused assent to is a Bill passed by the Delhi Assembly declaring that the
office of parliamentary secretary shall not disqualify the holder of this office. As a matter of
fact the Constitution of India empowers every legislature in the country to pass such a law
and exempt any such office from disqualifying its holder. So the Delhi government has only
exercised a power which is vested in it by the Constitution. It is not known why the President
withheld assent to this Bill. All legislatures including Parliament have passed such laws
exempting one office or the other from the disqualifying effect and many such laws were also
given retrospective effect. In any case the Presidents decision to reject the Bill has no impact
on the main issue before the Election Commission.

Office of Profit is not a term which can be easily understood or explained. This concept
originated in the House of Commons in England. The history of British House of Commons
is the history of conflicts with the crown. The king, in his efforts to undermine the House of
Commons, used to offer positions of executive nature with pecuniary benefits to its members
and buy their loyalty. This practice kept the members out of the House most of the time and
thus there arose a conflict between their duty and their personal interest. The continued
absence of a large number of members because of their preoccupation with executive
functions weakened the House of Commons in course of time and therefore it passed a law
prohibiting its members from accepting any office from the Crown which gave them any
pecuniary benefits. It was provided that any such office which a member may accept will
disqualify him.
In essence, the law of office of profit was introduced to end the conflict between the duty of a
member of the legislature towards the House and public and his personal interest.
There is no law which defines the term Office of Profit. Therefore, one has to depend on
the decisions of the Supreme Court of India. Fortunately for us the court has explained with
great clarity the law of office of profit in a large number of cases. Articles 102 and 191 of the
Constitution say that a person shall be disqualified for being chosen and for being a member
of the House if he holds any office of profit under the Government of India or the
government of any State. A large number of cases like Abdul Shakur v. Rikhab Chand (AIR
1958 SC 52), Ramappa v. Sangappa (AIR 1958 SC 937), Guru Gobind Basu v. Sankari
Prasad Ghosal (AIR 1964 SC 254), Shivamurthy Swami v. Sanganna Andanappa (1971) 3
SCC 870, Ravanna Subanna v. G.S. Kaggeerappa (AIR 1954 SC 653), Smt. Kanta Kathuria
v. M. Manak Chand Khurana (ELR Vol. XLIII, Page 158) laid down the conditions for
deciding whether an office is an office of profit. These conditions are: The government makes
the appointment; the government has the right to remove or dismiss the holder; the
government pays the remuneration; the holder performs the functions for the government;
and the government exercises control over the performance of those functions.
All the later cases decided by the Supreme Court like Jaya Bachchan v. Union of India (2006)
5 SCC 266 and U.C. Raman v. P.T.A Rahim (2014) 8 SCC 934 followed the decisions in the
earlier cases. The crucial point decided in all cases is that unless some remuneration is
attached to the office or the office is capable of yielding some pecuniary gains it would not be
an office of profit. This point is clearly stressed by the Supreme Court in the U.C.

Raman case. The court says this court has given categorical clarification on more than one
occasion that an Office of Profit is an Office which is capable of yielding a profit or
pecuniary gain. It has also been made clear by the court that compensatory allowances are
meant to meet the out-of-pocket expenses and hence do no constitute any profit. It becomes
thus clear that an office to which no salary or remuneration is attached or which is not
capable of yielding a profit is not an office of profit.
Element

of

retrospectivity

A lot of uninformed discussion has taken place on the question of the retrospectivity of the
bill passed by the Delhi Assembly. The Supreme Court has held in a number of cases that
State Legislatures and Parliament can legislate retrospectively. In fact there are instances
when the British Parliament validated even irregular elections of MPs retrospectively (for
instance, the Coatbridge and Springburn Elections (Validation) Bill, 1945 quoted in my
book Law & Practice Relating to Office of Profit, page 218).Halsburys Laws of England (3rd
edition, vol. 14, page 5) says if a person is elected when disqualified his disqualification for
being a Member of Parliament may be remedied by an act of validation or immunity.
In Kanta Kathuria, an Act of the Rajasthan legislature removed the disqualification
retrospectively. Ms. Kathuria, a member of the legislature was disqualified by the High Court
for holding an office of profit. When the appeal was filed in the Supreme Court, the
Assembly passed an Act removing the disqualification. This was upheld by the Supreme
Court. The court said there is nothing in the words of the article (191) to indicate that this
declaration cannot be made with retrospective effect.
Some news reports quoted Law Ministry officials as saying that the creation of 21 posts of
parliamentary secretaries is unconstitutional as it violates Article 239 AA(4) which limits the
number of ministers to 10 per cent of the strength of the Assembly and therefore the President
withheld his assent to the Bill. The Law Ministry presumes that the parliamentary secretaries
are Ministers. Ministers are appointed by the President. He administers the oath of office and
secrecy to them. Without meeting these constitutional requirements one cannot be treated as a
minister. Parliamentary secretaries are not ministers within the meaning of Article 239 AA(4)
because they are not appointed by the President and are not administered the oath of office
and secrecy by him. Appointing 21 parliamentary secretaries may raise a question of
propriety but not a question of constitutionality.

Nothing

illegal

about

it

A funny argument heard on a prominent television channel held that it was wrong and illegal
for the Arvind Kejriwal-led Delhi government to create these posts without the backing of a
law. This argument is born out of total ignorance of the Constitution. Articles 73 and 162
declare that the Union executive and the State executive respectively have power to take
executive action on all matters on which Parliament and State legislature have power to
legislate.
The noise that is being made today on the Delhi Bill is quite unnecessary. Much of the debate
that has gone on is uninformed. The Bill was a legitimate exercise of the power vested in the
Delhi Assembly to declare that the office of parliamentary secretary shall not disqualify the
holder. Even when this office, which has no salary or remuneration attached to it, is not an
office of profit, the Bill was passed by way of abundant caution. In fact the Supreme Court
has in U.C. Ramans case approved this course of action.
So what is this great debate all about? It is much sound and fury signifying nothing!
P.D.T. Achary is former Secretary General of the Lok Sabha.

WHY THE CHILCOT REPORT IS VITAL

Parvathi Menon
http://www.thehindu.com/opinion/op-ed/why-the-chilcots-iraq-war-inquiry-report-isvital/article8820189.ece?homepage=true
TOPICS
World
United Kingdom
No justice can undo what military action against the Iraqi people in 2003
has wrought. Tony Blair cannot shrug off his role in this.

Among the many disclosures in the report of the Iraq Inquiry headed by Sir John Chilcot is a
private memo from the then Prime Minister, Tony Blair, to the then President of the United
States, George Bush. Written as early as July 2002, the letter starts with the words, I will be
with you, whatever.
The words capture the motivations and role of Mr. Blair in driving the whole sordid phase of
Britains foreign policy during the years between September 2001, when the attack on the
twin towers in New York by al-Qaeda took place, right up to 2007, when he stepped down as
Prime Minister (although British troops were pulled out only in 2009).
Still

unrepentant

In his detailed reply to the Chilcot report, which catalogued the damning evidence of the
process that led to the U.K.s decision to occupy a sovereign state for the first time since the
Second World War at a time when the Iraqi President Saddam Hussein posed no imminent
threat, Mr. Blair was unrepentant.
In his two-hour press conference, he argued that he had acted in good faith based on
intelligence that suggested that Iraq had weapons of mass destruction (WMD) intelligence
he admitted that turned out to be wrong.
Indeed, Mr. Blair made the point explicitly: I believe we made the right decision and the
world is better and safer. Yes, there were some minor mistakes made in planning and
process, he said, but he would take the same decision if presented with the evidence he had
at the time.
The deaths, both of combatants and civilians, resulting from the Iraq invasion are staggering.
Iraq Body Count puts the civilian casualties between 160,412 and 179,327, and combatant
deaths at 251,000. According to an academic study published in 2014 by university
researchers in the U.S., Canada and Iraq in cooperation with the Iraqi Ministry of Health, the
toll from the war and war-related causes like insurgency, invasion and social breakdown is
nearly half a million people.
The people of Iraq have suffered greatly, the report, which stands out for its understated but
stinging language, observes.

The 2.6 million word, 12 volume report, with an over 100-page executive summary, took
seven years to see the light of day after it was commissioned by former Prime Minister
Gordon Brown in 2009.
An

indicting

recap

Mr. Blairs thinking in respect of how to deal with Saddam undergoes a radical shift between
the immediate aftermath of 9/11 when he calls for a policy of containment, and July 2002,
when his private memo to Mr. Bush declares that he will be with you, whatever. He goes
on to lay out his thinking: In removing him, do you want/need a coalition? The U.S. could
do it alone, with U.K. support. The danger is, as ever with these things, unintended
consequences.
The memo, which was seen only by No. 10 officials was not even shown to the then Foreign
Secretary, Jack Straw, or Defence Secretary, Geoff Hoon.
At his press conference, Mr. Blair denied that this memo showed that he had taken a
decision on invasion eight months before it was presented to Parliament. He argued that in
the memo he set out the conditions necessary that we should go down the UN path and
avoid precipitate action. The memo is one of a cache of such memos sent by Mr. Blair to Mr.
Bush. They reveal a Prime Minister sharing strategy and policy with Mr. Bush, while keeping
his Ministers and military commanders in the dark.
In his response to the report, Mr. Blair has taken the moral high ground, insisting that that he
acted in good faith that while he can be criticised for errors of judgment, he cannot be
accused of lies and deceit. The report, however, leaves his defence in shreds. It leaves no gaps
that he can slip through.
The Report leaves no ground for doubt about Mr. Blairs culpability. It is clear that the U.K.
chose to join the invasion of Iraq in March 2003 before all peaceful options for disarming
Saddam had been exhausted, thus establishing that war at that time was not, as Mr. Blair
claims, a last resort.
There was no imminent threat from the Iraqi leader and with a majority of the United Nations
Security Council supporting UN inspections and monitoring, Mr. Blairs judgment about the

severity of the threat posed by Iraq were presented with a certainty that was not justified,
and intelligence that had not established beyond doubt that Saddam was proceeding with
the manufacture of chemical and biological weapons. In his presentation to the British
Parliament just prior to the invasion, these were details that Mr. Blair hid.
The legal basis for military action was far from satisfactory, the report notes. In taking this
action the U.K. undermined the authority of the United Nations Security Council.
The report is equally critical on military planning, establishing that three military brigades
were not properly prepared, and the risks not properly identified nor fully exposed to
Ministers.
A

toll

that

continues

to

rise

Finally, planning and preparations for the post-Saddam period were wholly inadequate, the
report states. It drives the final nail in the coffin with its conclusion. The U.K. government
failed to achieve the stated objectives it had set itself in Iraq. As a consequence of this,
more than 200 British citizens died, and by July 2009, 150,000 Iraqis had died and more than
one million were displaced, figures that continue to rise till date. These are facts that cannot
be contested by Mr. Blair.
The Iraq Inquiry is not a court and was not set up to make a legal case against Mr. Blair and
individuals in his government who took wrong decisions that led to such disastrous
consequences. Mr. Blair has tried to brazen it out, and indeed feels so sure of his actions that
he even claims he can look the nation and the families of the British soldiers who died in the
eye. But the painful reality of life after an unjust war is an experience that Iraqs people
suffer every day. There is no justice that can undo what military action conducted on false
premises against their country in 2003 has wrought.

THE ABC OF RADICALISATION

JOSY JOSEPH

http://www.thehindu.com/opinion/op-ed/roots-of-radical-movements-dhaka-siege-kashmirinsurgency-ltte-sri-lanka/article8820186.ece?homepage=true

TOPICS

World
Bangladesh
unrest, conflicts and war
act of terror
There is data to show that relatively better-off people are likely to take to
terrorism.
Young Nibras Islam couldnt contain his excitement after shaking hands with Bollywood
actress Shraddha Kapoor. Without wasting much time, he announced it on social media. The
quiet teenager was an enthusiastic football player in Turkish Hope School in Dhaka, where
many of the elite families of Bangladesh send their children. Islam went to Malaysia for
higher studies, but returned home a few months later. Then he disappeared.
When Islam appeared in public next, he was leading a group of over half a dozen gun-toting
youngsters into Holey Artisan Bakery in Dhakas Gulshan neighbourhood, which many of
those terrorists used to visit occasionally until a few months ago.
According to investigators, Islam was directing the group as they went about murdering
people, mostly by slashing throats of those who couldnt recite verses from the Quran.
Except for probably a couple of madrasa students from Bogra, the rest of the attackers were
all English-speaking elite from Dhaka who studied in some of the finest English medium
schools, frequented the Gulshan caf, listened to pop music and longed to meet celebrities.
Why the surprise?
The fact that the Dhaka attackers were mostly from privileged backgrounds is not surprising
at all. There is enough data available in various academic studies to show that more educated,
and relatively better off, people are more likely to take to terrorism than their poorer
compatriots. That statistic is a stark warning to Indian law enforcement agencies that, of late,
they might be searching mostly in the wrong places for potential terrorists in poor Muslim
ghettos and among the weakest of them.
Economist Alan Krueger of Princeton University who has done pioneering terrorism studies,
argues in his book, What Makes a Terrorist: Economics and the Roots of Terrorism, that to

understand who joins terrorist organisations instead of asking who has a low salary and few
opportunities, we should ask: who holds strong political views and is confident enough to try
to impose an extremist vision by violent means?
Prof Krueger points out that most terrorists are not so desperately poor that they have nothing
to live for: Instead, they are people who care so fervently about a cause that they are willing
to die for it.
Look at South Asia. While the region has had innumerable insurgencies, only few have
produced suicide terrorism, the highest form of sacrifice for the aggrieved mind.
The Liberation Tigers of Tamil Eelam (LTTE) of Sri Lanka produced almost 200 suicide
bombers. Many recruits were beneficiaries of secular education. Among the suicide attackers
were a few Christians, no Muslims, and the rest were Hindus. Religion was not a mobilising
factor an extreme sense of grievance against the Sri Lankan establishment was. In
contrast, the Kashmir militancy did not witness suicide attacks until 1999, when a local boy
drove a car packed with explosives into the 15 Corps headquarters. However, a vast majority
of the suicide terrorists were from across the border.
There is a commonality between the two insurgencies. In both Sri Lanka and Kashmir it was
a generation of educated youth who began armed movements in response to their perceived
grievances.
The more educated are more susceptible to disappointment with the prevailing situation. And
their outrage would be far higher too, compared to their contemporaries who are less
educated.
This is a reality very visible within Indian insurgencies too, but our security and political
establishment is not willing to accept that fact. Because the moment you accept that
grievances of an educated and relatively better off person are the root cause of such a
perverted response, then there is more pressure on you to initiate steps to address those
grievances.
In the Kashmir Valley the new wave of local militants, primarily from four districts of South
Kashmir Pulwama, Anantnag, Kulgam and Shopian are mostly from middle class
families and have had a good education.

Not different is the story of the Islamic State sympathisers intercepted by the Indian agencies
in the early phase of their operations. They were mostly educated and relatively affluent.
Cuddalore-born, Singapore passport-holder Haja Fakkrudeen, who went to Syria, and his
friend Gul Mohamed Maracachi Maraicar, who is in jail, fall into this subset.
Not very different is the story of Bengaluru resident Muhammed Abdul Ahad, a U.S.educated computer professional who took his wife and children along to join the IS, but was
intercepted at the Syrian border.
The stories of numerous others tracked by Indian agencies across the country as the IS
fervour gripped West Asia a couple of years ago are similar.
Signs

of

trouble

However, of late there is a different narrative emerging, which is both disconcerting and
portends trouble. This May in Delhi, and a few days ago in Hyderabad, the local police had to
let off many of the so-called suspects they had arrested as IS sympathisers. Such irresponsible
arrests by the security establishment will only add to the grievances that fuel modern-day
terrorism.
If available data point towards the educated lot taking to terrorism much before their poor
cousins, then Indias Central and State governments have a lot of steps to take, from reining
in ministers given to making polarising statements as well as countering blatantly communal
leaders across political parties. But addressing these real reasons to contain terrorism is to
challenge the modern-day political playbook.

IT ISNT ABOUT WOMEN

NIVEDITA MENON

The talk of a Uniform Civil Code has nothing to do with gender justice. It
has entirely to do with a Hindu nationalist agenda to discipline Muslims
For nearly eight decades, the womens movement has discussed and debated the desirability
and feasibility of a Uniform Civil Code, and has ended up posing a simple question what
is the value of uniformity? Is it for the integrity of the nation that uniformity in laws is
required, as some judicial pronouncements have suggested? If so, who exactly is the
beneficiary? Which sections of people benefit from integrity of the nation, that abstract
entity which is not exactly at the top of your mind as your husband throws you out on the
street?
Or are uniform laws meant to ensure justice for women in marriage and inheritance? In that
case, a Uniform Civil Code would simply put together the best gender-just practices from all
Personal Laws. So yes, polygamy and arbitrary divorce would be outlawed (a feature derived
from Hindu Personal Law). But conversely, as feminist legal activist Flavia Agnes has often
pointed out, a Uniform Civil Code would require the abolition of the Hindu Undivided
Family, a legal institution that gives tax benefits only to Hindus, and all citizens of India
would have to be governed by the largely gender-just Indian Succession Act, 1925, currently
applicable only to Christians and Parsis.
A

stick

to

beat

Muslims

with

Muslim Personal Law is already modern in this sense, since it has since the 1930s enshrined
individual rights to property, unlike Hindu law, in which the familys natural condition is
assumed to be joint. In the decades of the 1930s and 1940s, contrary to later discourses
about Muslim law being backward, it was Hindu laws that were considered backward and
needing to be brought into the modern world of individual property rights.
Again, since the Muslim marriage as contract protects women better in case of divorce than
the Hindu marriage as sacrament, all marriages would have to be civil contracts. Mehr, in
Muslim Personal Law, paid by the husbands family to the wife upon marriage, is the
exclusive property of the wife and it is hers upon divorce, offering her a protection Hindu
women do not have. So, the Uniform Civil Code would make the practice
of mehr compulsory for all while abolishing dowry.

The patent absurdity of these suggestions arises not from the ideas themselves, but from the
fact, recognised by everybody, that the talk of a Uniform Civil Code has nothing to do at all
with gender justice. It has entirely to do with a Hindu nationalist agenda, and is right up there
with the beef ban and the temple in Ayodhya. A Uniform Civil Code is meant to discipline
Muslims, teach them (if they didnt know it already) that they are second-class citizens, and
that they live at the mercy of the national race (the Hindus), as M.S. Golwalkar decreed.
The

real

issue

of

gender

justice

So let us pose the question differently who suffers in the absence of a Uniform Civil
Code? Is it Muslim women, victims of polygamy and triple talaq, as Hindutvavadi wisdom
has it? But for decades, feminist legal practice has successfully used both the Protection of
Women from Domestic Violence Act, 2005 that is available to all Indian citizens
regardless of religious identity as well as the Muslim Women (Protection of Rights on
Divorce) Act, 1986, to deal with polygamy and triple talaq, and to obtain maintenance, child
custody and rights to matrimonial home for countless Muslim women. In addition, feminist
legal activists have used the landmark Shamim Ara v. State of U.P. (2002) ruling to buttress
their claim that arbitrary triple talaq is invalid.
Moreover, polygamy is not exclusive to Muslims. Hindu men are polygamous too, except
that because polygamy is legally banned in Hindu law, subsequent wives have no legal
standing and no protection under the law. Under Sharia law, on the contrary, subsequent
wives have rights and husbands have obligations towards them. If gender justice is the value
we espouse, rather than monogamy per se, we would be thinking about how to protect
wives in the patriarchal institution of marriage. Wives are produced through the
institution of compulsory heterosexual marriage, the basis of which is the sexual division of
labour. This institution is sustained by the productive and reproductive labour of women, and
almost all women are exclusively trained to be wives alone.
Thus, when a marriage fails to fulfil its patriarchal promise of security in return for that
labour, all that most women are left with is the capacity for unskilled labour. Or they remain
trapped in marriage with children to provide for, while men marry again, legally or otherwise,
producing still more dependent, exploited wives and children for whom they take no
responsibility. If gender justice is the point of legal reforms, the centrality and power of the
compulsory heterosexual, patriarchal marriage, and the damage it can do to women, is what

must be mitigated. This would mean recognising the reality of multiple wives as a common
practice across communities, and the protection of the rights of all women in such
relationships.
In this sense, recent Supreme Court rulings that have granted rights to second wives in Hindu
marriages dilute the legal standing of monogamy for Hindus but empower women.
A survey conducted by the Bharatiya Muslim Mahila Andolan, a significant voice in the
debate, found that more than 90 per cent of Muslim women in India want a ban on triple
talaq and polygamy in Muslim Personal Law. That is, the demand is made within the
framework of codifying Muslim Personal Law, not in favour of a Uniform Civil Code, partly
because there is no clarity on what a uniform code would look like, but also because the
demand comes from clearly Hindutvavadi quarters which have shown that both women and
minorities are expendable for them.
Lessons

from

the

Goa

experience

The only example of a uniform code in India is the Portuguese Civil Procedure Code (1939)
of Goa, which is neither uniform nor gender-just. Marriage laws differ for Catholics and
people of other faiths, and if a marriage is solemnised in church, then Church law applies,
permitting, for example, arbitrary annulment at the behest of one of the parties. The customs
and usages of the Hindus of Goa are recognised, including limited polygamy for Hindus.
The positive aspect of Goas Civil Code is the Community Property Law, which guarantees
each spouse 50 per cent of all assets owned and due to be inherited at the time of marriage.
However, this provision can be sidestepped in practice, given the power relations in a
marriage, and studies show that it has not made any impact on the incidence of domestic
violence.
Clearly, if gender justice is not prioritised, both uniformity as well as its dilution can
reinforce patriarchy and majoritarianism.
The woman at the centre of this recent round of debate on the Uniform Civil Code is Shayara
Bano, who received talaq by post. Her lawyer, instead of using any of the three recourses
available discussed above the Protection of Women from Domestic Violence Act, 2005,

the Muslim Women (Protection of Rights on Divorce) Act, 1986, or the citation of
the Shamim Ara v. State of U.P. (2002) judgment decided to file a Public Interest
Litigation in the Supreme Court challenging triple talaq on the grounds of violation of
Fundamental Rights. Ms. Bano is now in the media spotlight, spiritedly criticising patriarchy
in the Muslim community.
Revealingly, a recent interview with her in a national newspaper concluded with a startling
question What about the Bharat Mata ki Jai slogan controversy? Ms. Bano replies, I
feel all Muslims should say Bharat Maa ki Jai.
Does the question seem irrelevant in the context of Ms. Banos fight for personal justice?
What does compulsory chanting of Bharat Mata ki Jai have to do with a woman fighting
patriarchy?
But the question does not seem irrelevant at all; it seems to be at the heart of the interview.
This alone should alert us to what the demand for a Uniform Civil Code is actually about.
Nivedita Menon, a feminist scholar, is a professor at Jawaharlal Nehru University, New
Delhi.

http://www.thehindu.com/opinion/lead/union-minister-venkaiah-naidu-on-uniform-civilcode-why-not-a-common-civil-code-for-all/article8855995.ece?
ref=topnavwidget&utm_source=topnavdd&utm_medium=topnavdropdownwidget&utm_cam
paign=topnavdropdown

WHY NOT A COMMON CIVIL CODE FOR ALL?

M. Venkaiah Naidu is Minister for Urban Development & Information and Broadcasting,
Government of India.
A set of laws to govern personal matters of all citizens irrespective of
religion is the cornerstone of true secularism. It would help end gender
discrimination on religious grounds and strengthen the secular fabric

The recent progressive decisions of the Shani Shingnapur and Trimbakeshwar temple trusts to
allow entry of women in the wake of a series of protests constitute a welcome development in
what has been a long march towards gender equality. They also served to rekindle a
countrywide debate on ending widespread gender discrimination, especially on religious
grounds. It is a matter of concern that close to seven decades after Independence, women
continue to battle discrimination in matters of religion even as they march shoulder-toshoulder with men in various fields.
Perhaps, the time has come for us to take a close, hard look at the Goa Family Law and see if
it could be emulated in the rest of the country. The Portuguese Civil Code of 1867 was
continued in Goa after its liberation, and it should be the model for other States. The
progressive law provides for equal division of income and property regardless of gender
between husband and wife and also between children. It is also applicable in the Union
Territories of Dadra and Nagar Haveli and Daman and Diu.
Importance

of

Common

Code

A Common Civil Code that would put in place a set of laws to govern personal matters of all
citizens irrespective of religion is perhaps the need of the hour. It is, in fact, the cornerstone
of true secularism. Such a progressive reform would not only help end discrimination against
women on religious grounds but also strengthen the secular fabric of the country and promote
unity. However, it can be implemented only when there is wide acceptance from all religious
communities after discussing all the pros and cons as no decision, however reformatory,
could be thrust on the people without their acceptance. All misgivings would have to be
squarely addressed for progress to be achieved on this count.
In fact, Article 44 of the Constitution declares that the state shall endeavour to secure for the
citizens a Uniform Civil Code throughout the territory of India. During the debate in the
Constituent Assembly, Dr. B.R. Ambedkar, while supporting the need to frame a Uniform
Civil Code, expressed the hope that its application might be purely voluntary. He also said: I
personally do not understand why religion should be given this vast, expansive jurisdiction so
as to cover the whole of life and to prevent the legislature from encroaching upon that field.
After all, what are we having this liberty for? We are having this liberty in order to reform our
social system, which is full of inequities, discriminations and other things which conflict with

our fundamental rights. Babasahebs pragmatic words are of great relevance to the Indian
social context today.
While there is a criminal code which is applicable to all people irrespective of religion, caste,
tribe and domicile in the country, there is no similar code when dealing with respect to
divorce and succession which are governed by Personal Laws. The Uniform Civil Code seeks
to administer the same set of secular civil laws to govern all people.
Repeated

judicial

reminders

In 1985, the Supreme Court ruled in favour of Shah Bano, who had moved the apex court
seeking maintenance under Section 125 of the Code of Criminal Procedure after her husband
divorced her. The then Chief Justice, Y.V. Chandrachud, observed that a Common Civil Code
would help the cause of national integration by removing disparate loyalties to law. The Court
directed Parliament to frame a Uniform Civil Code.
In the Sarla Mudgal v. Union of India (1995) case, the Supreme Court had observed: Pandit
Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a
uniform civil code, in the Parliament in 1954, said, I do not think that at the present moment
the time is ripe in India for me to try to push it through. It appears that even 41 years
thereafter, the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage
where it is lying since 1949. The reasons are too obvious to be stated. The utmost that has
been done is to codify the Hindu law in the form of the Hindu Marriage Act, 1955, the Hindu
Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu
Adoptions and Maintenance Act, 1956, which have replaced the traditional Hindu law based
on different schools of thought and scriptural laws into one unified code. When more than 80
per cent of the citizens have already been brought under the codified personal law, there is no
justification whatsoever to keep in abeyance, any more, the introduction of Uniform Civil
Code for all citizens.
In the John Vallamattom v. Union of India case in 2003, Chief Justice V.N. Khare had
observed: It is a matter of regret that Article 44 of the Constitution has not been given effect
to. Parliament is still to step in for framing a common civil code in the country.

In fact, the Supreme Court in October 2015 said there was total confusion due to various
Personal Laws and sought to know if the government was willing to implement a Uniform
Civil Code. It observed: What happened to it? Why dont you (the government) frame and
implement it? However, the apex court later declined to direct Parliament to bring in a
Uniform Civil Code while allowing a PIL filed in this regard to be withdrawn.
A

secular

project

at

heart

Several eminent people, representing diverse fields, have put forth different arguments
against the introduction of a Common Civil Code. The most common refrain has been that
even the British did not try to codify Personal Laws based on religion and any attempt to
bring in a common codification of laws would be tantamount to the states interference in
religious affairs, particularly of the minorities. Nothing can be farther from truth. It would be
apt to remember the words of Mahatma Gandhi, who once said: We should get out of the
miasma of religious majorities and minorities. That, in reality, would be the precise
endeavour of such a unified code. If one were to be wedded to rigid and bigoted views, why
should there be any statutes and changes in them in sync with the times? As a society evolves,
it enacts laws which protect and safeguard the rights and interests of all its citizens.
Contrary to a sustained campaign of misinformation, the whole concept of a Common Civil
Code is not aimed against any particular religion or its customs, but to prevent oppression in
the name of religion. It would naturally be based on internationally accepted principles of
jurisprudence and would go a long way in providing a sense of security to people of various
religious denominations.
Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila
Andolan, in a letter to Prime Minister Narendra Modi in November 2015, observed: From
the Shah Bano case in 1985 till date, Muslim women have never been heard in matters
concerning their lives thanks to the politics in our country. Certain orthodox and patriarchal
males have stonewalled any attempt towards reform in Muslim personal law. In the
process, Muslim women have been denied their Quranic rights as well as their rights as equal
Indian citizens. Almost all Muslim countries the world over, such as Morocco, Tunisia,
Turkey, Egypt, Jordan and even Bangladesh and Pakistan in our neighbourhood, have
codified personal laws governing marriage and family matters Indian Muslims are denied
this opportunity. As a result, we see instances of triple talaq and polygamy in our society.

They further stated that they had just published national research findings with a primary
sample of 4710 Muslim women across 10 states. An overwhelming 92.1% women want a
total ban on oral/unilateral divorce and 91.7% are opposed to polygamy. 83.3% women said
that codification of Muslim family law will help Muslim women get justice.
It was also mentioned that BMMA had prepared a draft Muslim Family Law based on
Koranic tenets concerning the age of marriage, mehr, talaq, polygamy, maintenance, custody
of children etc. The important provisions of this draft law include a minimum marriage age of
18 for girls and 21 for boys and that the consent of both parties must be obtained without
force or fraud, minimum mehr to be equivalent of one full annual income of the groom to be
paid at the time of nikah. Further, it said that Talaq-e-Ahsan should be adopted as the method
of divorce requiring mandatory arbitration over a 90-day period, oral unilateral divorce to be
declared illegal, polygamy to be declared illegal, daughters to get equal share as sons
through hiba or gift deed or will, compulsory registration of marriages, and the qazi to be
held accountable for violations during talaq, polygamy and other such matters.
About

tolerance

From Shah Bano to Shayara Bano, who recently filed a PIL in the Supreme Court, the focus
has been on gender-friendly reforms of Personal Laws. With changing times, the need has
arisen for having a Common Civil Code for all citizens, irrespective of religion, ensuring that
their fundamental and constitutional rights are protected. Nobody need have qualms on this
count. While emphasising that the foundations of secularism would only get further
strengthened by introducing a Common Civil Code, I would like to recall the words of
Mahatma Gandhi: I do not expect India of my dreams to develop one religion, i.e., to be
wholly Hindu or wholly Christian or wholly Mussalman, but I want it to be wholly tolerant,
with its religions working side-by-side with one another.
With the government seeking the opinion of the Law Commission to examine all aspects
pertaining to Uniform Civil Code, the time has come for an enlightened debate in the country
to arrive at a consensus at the earliest.
FRONTLINE 14th Oct 2016

CAUVERY CONFLICT

CWDT arrived at a formula under which TN was awarded 419 tmc ft: 192 tmc ft to be
released by Karnataka and the remaining 227 tmc ft to come from tributaries within TN such
as the Amaravathy, Bhavani and Noyyal rivers, and groundwater. Karnataka was awarded
270 tmc ft; Kerala, 30 tmc ft; and Puducherry, 7 tmc ft.
In case of Cauvery basin, TN has been a historical favourite. Karnataka sees both the 1892
and 1924 agreements between Madras Presidency and the princely state of Mysore as unjust.
The British were on the side of the Madras Presidency, a key constituent and financial
contributor to the Empire.
In 2002, the SC had pulled up the then Karnataka CM for contempt of court. If the courts
rulings are not obeyed, it would tear at our democratic fabric. The Centre can direct a State
under Art. 256 to comply with a certain directive (in this case the ruling) and can also invoke
provisions under Arts. 365 and 356 if the State does not comply.
Main crop of paddy is cultivated in TN in Samba season (Aug). Samba is the only cropping
season that does not depend on groundwater for irrigation and that exposes it to the vagaries
of nature leaving samba paddy at the mercy of the monsoon depending on the water release
from upstream. Farmers in the region insist that as much as 70 % of the area is covered by
direct sowing now. (With direct seeding, rice seed is sown and sprouted directly into the field,
eliminating the laborious process of planting seedlings by hand and greatly reducing the
crops water requirements. Refer to http://blogs.ei.columbia.edu/2010/11/18/direct-seedingof-rice-%E2%80%93-a-simple-solution-to-india%E2%80%99s-water-crisis/)
Solution:
The farmer to farmer initiative, combined with water conservation measures, shifting crop
patterns in tandem with other parts of the basin, regular desilting of the basins irrigation
channels, tanks and other such structures, strict enforcement of pollution norms along the
Cauvery, and transparency of all operations in the basin area will be the forward.
Cauvery expert Ramaswamy R. Iyer (Water: Growing Understanding, Emerging
Perspectives, EPW, 2013) argues that as long as Karnatakas sense of injustice remains, it will
not constructively cooperate in the implementation of the award. S. Guhan in The Cauvery

Dispute: Towards Conciliation, notes that a fundamental deficiency in the Indian river dispute
settlement procedures is that they directly jump from negotiation to compulsory legal
adjudication without providing for intermediate voluntary processes such as mediation,
conciliation and voluntary arbitration.
Management of most inter-State rivers are guided by Colonial agreements. Sec. 130 to 132 of
the Govt. of India Act, 1935 limits States use of inter-State river waters, although water
supplies, canals and drainage are on the State list. Art. 262 empowers Parliament to
adjudicate on any dispute or complaint with respect to the use, distribution or control of the
waters of, or any inter-State river or river valley. Art. 262(20 provides for special tribunals.
Tribunals, so far, have not achieved much.
Andhra Pradesh and TN have legislated on participatory irrigation management aimed at,
inter alia, reviving the traditional tanks. Despite this, well- driven irrigation meant that the
farmers did not concentrate on tanks management. Crop diversification, reducing cultivable
area marginally, and shifting to less water- guzzling varieties of rice have been among the
suggestions that many experts have been talking about. But as long as govt., the main
procurer of rice, gives a higher support price for rice than for other crops, farmers will be
tempted to grow rice alone.

WINKING AT THE STATES

http://www.thehindu.com/opinion/lead/jairam-ramesh-muhammad-a-khan-on-landacquisition-law-winking-at-the-states/article9292353.ece

Jairam Ramesh is a Member of Parliament, and Muhammad A. Khan is an advocate; they are
the authors of Legislating for Justice: Making of the 2013 Land Acquisition Law (OUP,
2015).
Last year, faced with its inability to amend the historic Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the
Bharatiya Janata Party (BJP)-led government at the Centre devised a constitutionally
pernicious alternative. Finance Minister Arun Jaitley, speaking after the second meeting of
the governing council of NITI Aayog on July 15, 2015, encouraged States to draft and pass
their own laws for land acquisition and get them approved by the Centre.

Following this unambiguous official sanction, Tamil Nadu and Gujarat have moved ahead
with their amendments, Rajasthan has a Bill ready and Telangana is working on its version.
These laws allow for the acquisition of land in the States without having to satisfy any of the
crucial safeguards built into the 2013 Central law, such as the right to consent, social impact
assessment and, in the case of Tamil Nadu, even rehabilitation and resettlement.
Spirit behind the exceptions
As per the doctrine of occupied field enshrined in Article 254(1) of the Constitution, if
there exists a Central law on a concurrent subject, then a State law cannot override it.
However, Article 254(2) provides that if a State law receives presidential assent after due
consideration, then it can apply in contravention to the Central law in that particular State.
This use of this provision to permit States to pass land acquisition laws in conflict with the
2013 Act gives rise to three grave jurisprudential concerns.
First, Article 254(2) was never intended, even in its broadest interpretation, to weaken Central
laws merely because they were found to be inconvenient. It was intended to bring in changes
to Central laws if there was a genuine hurdle in implementing them in a particular State due
to challenges peculiar to that region.
Consider this. The 2013 law was sought to be amended by the BJP-led government as it felt
that the Centres power of eminent domain had been curtailed. It argued that the 2013 law
was making the acquisition of land harder by empowering those whose land was previously
forcibly acquired. This move was followed by a massive nationwide backlash which unified
opposition parties across the ideological spectrum. In 2014, the Supreme Court refused to
entertain challenges to various provisions of the 2013 law. Thus, two things became clear: the
law was constitutionally sound and the public mandate was overwhelmingly against such
amendments.
It is a settled proposition that what the government cannot do directly, it cannot do indirectly.
This oft-reiterated maxim has been used by the Supreme Court of India to strike down the
attempts of the government to pass off what is known as colourable legislation (laws the
government is not qualified to pass, disguised as other laws). A creative attempt to weaken a
state law against the larger public interest is nothing short of such an abuse.
Presidential

assent

not

formality

Second, it is pertinent to examine the nature of the presidential power envisaged under this
Article. Is the President required to act mechanically on the advice of the Council of
Ministers or is he to apply his own mind? The Supreme Court in a landmark Constitution
Bench decision in Kaiser-I-Hind Pvt. Ltd. v.National Textile Corporation (2002) held, in
relation to Article 254(2), that the words reserved for consideration would definitely
indicate that there should be active application of mind by the President to the repugnancy
and the necessity of having such a law, in facts and circumstances of the matter The word
assent is used purposefully indicating affirmative action of the proposal made by the State for
having law repugnant to the earlier law made by the Parliament. This cannot be done without
consideration of the relevant material.
Constitutional scholar Durga Das Basu in his seminal commentary on Constitutional Law
reaffirms this interpretation. He further argues that the words reserved for consideration
used in Article 254(2) cannot be an idle formality but would require serious consideration on
the material placed before the President. Therefore it is clear that the President must act
deliberately and consciously and not merely on the advice of the Council of Ministers. The
newly enacted State laws on acquisition curtail and suspend the statutory right to give consent
to acquisition and the need to carry out a social impact assessment. The President is required
to examine if compelling reasons to sanction such a significant deviation exist.
But can the Presidents exercise of his power under Article 254(2) be subject to judicial
review? The Supreme Court in the Kaiser-i-Hind case, while relying on several precedents,
held, We further make it clear that granting of assent under Article 254(2) is not exercise of
legislative power of President such as contemplated under Article 123 but is part of
legislative procedure. Whether procedure prescribed by the Constitution before enacting the
law is followed or not can always be looked into by the Court. In other words, the court may
review whether the procedure which requires thorough reflection and conscious application
of mind by the President was observed.
Undermining

Parliament

Third, in an alternative scenario, if one were to argue that presidential approval is merely a
formality which can only be delayed, not denied, then it leads to the worrying conclusion that
Central laws on any subject contained in List III of the Seventh Schedule of the Constitution
(Concurrent List) like forests, electricity, family planning and education are, in effect,

pointless. Wherever a Central government lacks the numbers to pass a law (on a concurrent
subject) in Parliament or is faced with public opposition, it will concede the authority to
States to pass the laws as they see fit and get the President to approve them. This is happening
not just for land acquisition but also for labour laws, with Rajasthan having shown the way.
Here we must also make a distinction between Parliament and the Central government. The
2013 law is an Act of Parliament that occupies the field but the Centre wishes to dilute it.
Instead of upholding its sanctity (as required by the Constitution) the government wishes to
undermine the role of Parliament by actively encouraging States to bypass the law. Therefore
it is breaching the provisions of Article 254(1) which give supremacy to laws made by
Parliament unless States have a genuine necessity to deviate.
Such pernicious misuse of a constitutional provision cannot and should not go unchecked.
Parliament passed a law in the exercise of its sovereign power bestowed on it by the
Constitution. A hard-fought consensus was achieved that was widely held to be in the larger
public interest. It cannot be diluted by creating half-smart loopholes and too-clever-by-half
shortcuts which make a complete mockery of the very idea of a Concurrent List in the
Constitution, which must be considered as an integral part of its basic structure.

WHY DIVERSITY NEEDS SECULARISM

http://www.thehindu.com/opinion/op-ed/shaikh-mujibur-rehman-on-why-diversity-needssecularism/article9292345.ece
Shaikh Mujibur Rehman is the editor of Communalism in Postcolonial India: Changing
Contours (Routledge, 2016). He teaches at Jamia Millia Central University, New Delhi.

The expansion and consolidation of the Hindu Rights political power has raised legitimate
concerns about the future of Indias secularism. While criticism ofsecularism could be found
in the public debate during the anti-colonial struggle, the sustained assault on it became
particularly apparent during the Ayodhya movement. During the late 1980s and 1990s, the
public campaign led by the Bharatiya Janata Party (BJP) advocated that the practice
of secularism has led to the appeasement of Muslims. The BJP further argued that it has been
quite harmful to Indias democratic polity because it has been institutionalising votebank politics, and that what is needed is in fact an attempt for a positive secularism as

opposed to negative secularism. While these distinctions were widely used during those
days, surprisingly it has vanished from the political lexicon of the Hindu Right in recent
years.
Secularism,

unity

and

diversity

The most significant moment of this departure in the politics of the Hindu Right was during
the 2014 election campaign. For the first time in Indian history, Narendra Modi, as a prime
ministerial candidate, unleashed the most sustained attack on the idea of secularism in
meeting after meeting. At a meeting in Bulandshahr, Uttar Pradesh, on March 26, 2014, he
reminded people how the idea of secularism has kept Muslims poor. On this issue, he has
remained rather consistent even after becoming Prime Minister, although he has vacillated on
many other issues. At a party in Berlin on April 14, 2015, hosted by the Indian Ambassador,
he spoke of how Sanskrit has suffered owing to Indias so-called secular fever.
There are also occasions when Mr. Modi has made statements on diversity being Indias
strength without recognising that diversity as a political project can only be effective
with secularism as a working foundational value. This is a tragic flaw in the Hindu Rights
understanding of the notion of diversity. Inaugurating the debate on intolerance in Parliament
on November 26, 2015, Home Minister Rajnath Singh explained how this idea
of secularism has been misused and how the word is the most abused one. According to the
Hindu Right, there are perhaps some benefits of secularism, but they are trivial and could be
easily found in the ideology of Hindutva, apparently noble, kind, and all-embracing. It seems
to suggest thereby that the problem is not with the idea of Hindutva, but with the
misconceptions of secularists about this otherwise noble idea.
The Hindu Right is seemingly keen on reminding everyone that Indias founding fathers
including B.R. Ambedkar did not consider it necessary to introduce the word secular in the
Preamble of the Constitution. It was inserted as part of the 42nd amendment during Indira
Gandhis Emergency rule. In his speech, Mr. Singh specifically mentioned Ambedkars
reluctance to introduce the word. The fact is that Ambedkar made two interventions in the
debate on Professor K.T. Shahs resolution on this issue, and chose to remain silent on
the secularism question although he firmly opposed the entry of the word socialism on the
ground that future generations should have the freedom to choose their economic path.
Ambedkar was not a convinced socialist at all. But analysis of his writings on minority rights,

Muslims, Pakistan etc. when seen in the context of his pronouncements like I was born
Hindu, but wont die as one or Hinduism is not a religion echoes a particular brand
of secularism, very distinct from the Nehruvian or the Gandhian one. His secularism is about
human dignity, and his idea of secular political culture is to contribute to the emancipation of
human beings from all kinds of man-made suffering inflicted in the name of religion. Had he
been alive today, he would have been, no doubt, the most fierce and erudite critic of
Hindutva politics.
An

omission

yet

unexplained

These two words secular and socialist entered the Constitution when most leaders of
the Opposition were under arrest for their resistance to the Emergency. Since these words
were retained during the 44nd amendment under the Janata Party regime, it is suggestive of a
broad consensus among Indias political leadership for their insertion in the Constitution.
Why did our founding fathers not include them in the Constitution in the first place? Scholars
have tried to explain this. In his presidential address to the Indian History Congress, Malda,
in 2015, historian Sabyasachi Bhattacharya argued that it was Jawaharlal Nehrus and
Ambedkars larger belief in the values of equality and justice that encouraged them not to
introduce these words. One wonders how one could speak of equality and justice in a multireligious society without secularism.
Moreover, it would be almost impossible to argue that Indira Gandhi was the greater defender
of Indian minorities or a bigger patriot compared to Nehru or Ambedkar. There is little
knowledge about the circumstances in which she chose to introduce these words. Did she do
it on her own or was she advised by somebody? In a recent memoir, President Pranab
Mukherjee tells us that it was on the advice of Siddhartha Sankar Ray that she introduced the
Emergency. Moreover, Indira Gandhi was not just one of the past Prime Ministers of India
like, say, H.D. Deve Gowda; she was also Nehrus daughter. Was she privy to any particular
discussion with Nehru about the reason why he was not keen on pressing for the insertion of
these words? We do not have definite answers to these questions as yet.
Others like diplomat-turned-politician Pavan K. Varma argue that the threat to Indias secular
fabric fromthe Hindu Right was far greater during the 1970s, which is why Indira Gandhi
considered it necessary to introduce these words. Even socialist leader Jayaprakash Narayan
was concerned with the growing influence of the Rashtriya Swayamsevak Sangh on the

Morarji Desai government, for which he wrote a specific letter expressing his concerns about
its Hindutva project. As things stand now, there is no convincing answer as to why the word
secular was left out in the first place, and that gives the HinduRight a convenient handle to
twist the debate in its favour in their advocacy for its removal.

http://www.thehindu.com/opinion/lead/Making-of-a-legislative-court/article16750199.ece

MAKING OF A LEGISLATIVE COURT

The Supreme Court of India, on November 30, gave an order that the national anthem will
have to be played before feature films at cinema halls all over the country, and that those
present in these halls are obliged to stand up to show respect. Similar orders on respecting the
national anthem have been delivered by two High Courts in recent years. Indeed such an
order is not in any way an aberration in the post-Emergency trajectory of the higher judiciary.
A few months back, the Madras High Court mandated that Thirukkural be taught in all
schools in Tamil Nadu. Currently, in another case, the Supreme Court is considering making
yoga compulsory in schools. While patriotism, education and health may all perhaps be
desirable goals, what is common here is the court compulsorily prescribing highly specific
modes of pursuing these lofty aims. Such judicial decisions have three other common
attributes. First, all such cases are in the PIL (public interest litigation) jurisdiction. Second,
they rely on Fundamental Duties and/or an expanded notion of Directive Principles, with a
barely concealed contempt for Fundamental Rights. Third, the judges do not feel any need to
justify their decisions in legal terms.
Invitation to legislate
While PIL was defined by its dilution of locus standi, two new ways of conceptualising
standing in PIL were initially envisaged: representative standing and citizen standing. The
first would be in a case similar to a class-action suit, except with a non-class member
representing the larger group. A petitioner under citizen standing, on the other hand, was to
stand for the entire citizenry of India rather than individual victims of injustice. While both
categories have been present since the inception of PIL, there has been a definite trend away
from representative standing towards citizen standing. A PIL of the kind filed by the

petitioner Shyam Narayan Chouksey is of the latter kind and is really an invitation to
legislate. In fact, an order of this sort could only be made under the PIL jurisdiction, as it
enables any citizen to come to court professing public concern on any issue, asking the court
to act upon it. It should also not be surprising that Mr. Chouksey has had repeated success
with the same judge over the same issue. The impulse to legislate as well as allegations of
soliciting petitioners with their pet issues go back to the hallowed days of PIL under Justice
P.N. Bhagwati. Passing far-reaching interim orders without any urgency, like in the anthem
case, rather than in reasoned judgments is also unexceptional. Being a frankly legislative
court, the Supreme Court does not feel the need to give any reasons, as legal scholar
Tarunabh Khaitan has argued. Such are the occupational hazards of PIL.
The order of November 30 declares: Be it stated, a time has come, the citizens of the country
must realize that they live in a nation and are duty bound to show respect to National Anthem
which is the symbol of the Constitutional Patriotism and inherent national quality. It does not
allow any different notion or the perception of individual rights, that have individually
thought of have no space. The idea is constitutionally impermissible. The only statutory
provisions the order relied on are Fundamental Duties. These Duties are, perhaps not
coincidentally, currently in vogue even outside the judiciary. Last week, when November 26
was celebrated as Constitution Day for the first time, the exclusive focus of the University
Grants Commission (UGC) directive to all universities and colleges for the occasion was to
make students and teachers engage in activities propagating the Fundamental Duties.
A radical reshaping
No such Duties, however, existed in the original Constitution adopted on November 26, 1949.
These provisions were incorporated by the 42nd amendment to the Constitution during the
Emergency. It was passed by a Lok Sabha which had already finished its term of five years.
This amendment radically reshaped the Constitution, amending as many as 59 Articles. The
legacy of the 42nd amendment was partially undone by later amendments. But it could not be
repealed in toto, and much of it remains in the Constitution, most prominent being its
insertion of Socialist and Secular in the Preamble. This is unfortunate as the 42nd
amendment should be undone in its entirety for the damage it has done to Indian democracy.
To take a less conspicuous example, it froze delimitation of Lok Sabha constituencies, the
logic being States with higher population increase ought not to be rewarded with more seats.
Population control was thus deemed to be a more important principle than one person, one

vote. As a result, the average Lok Sabha seat in Rajasthan today represents a much larger
population than one in Kerala.
The official aims of the 42nd amendment included giving Directive Principles precedence
over those Fundamental Rights that had frustrated the Principles implementation. Indira
Gandhi had carried out a campaign for overriding Fundamental Rights with Directive
Principles ever since her electoral victory in 1971. Commitment to Directive Principles was
precisely what was implied by her infamous call for a committed judiciary during this
period. Article 31C was inserted in the Constitution in 1971 through which any law declared
to be implementing the socialistic directive principles of Articles 39(b) & 39 (c) could no
longer be declared invalid even if they violated Articles 14, 19 or 31. This immunity was
extended to all Directive Principles by the 42nd amendment in 1976. A similar immunity was
to be granted to laws implementing Fundamental Duties, though this was not carried through.
This approach then prevalent was pithily criticised by constitutional lawyer H.M. Seervai: It
was an unfounded assumption that the Directive Principles were to secure social justice
and the Fundamental Rights were mere selfish individual rights.
An enduring legacy
It is important to understand that this is precisely the implicit logic of the national anthem
order this week: pesky Fundamental Rights have to be made subservient to the higher ideals
of national integration and/or social revolution. This mode of argument, in which alleged
Constitutional goals trump Fundamental Rights, has been embraced by the judiciary and is an
enduring legacy of Mrs. Gandhis populism of the 1970s. The apotheosis of Directive
Principles was accepted in the judicial discourse of the post-Emergency period. While the
42nd amendment to Article 31C was struck down in 1980, even this judgment mirrored Mrs.
Gandhis language in astonishing fashion.
What makes the order on the national anthem so representative of PILs orientation is the fact
of its open hostility to the Fundamental Rights enshrined in the Constitution. It has long been
a popular misconception that PIL emerged as a corrective to the courts capitulation to
violations of civil liberties during the Emergency. In fact, the post-Emergency court has been
steadfast in its support of such state lawlessness. In the infamous Habeas Corpus case of
1976, the court had upheld the constitutionality of the draconian Maintenance of Internal
Security Act. Far from departing from this dark legacy, the Supreme Court has since
repeatedly upheld an entire alphabet soup of repressive statutes from the National Security

Act in 1980 to the Armed Forces (Special Powers) Act in 1997. The populist spirit of the
Emergency was never departed from by PIL and is entirely in conformity with its history. The
underlying sense of judicial purpose in the post-Emergency period was derived not from
entitlements drawn from rights, but from the goals of the Constitution. The courts had
implicitly accepted the language of legitimation that Mrs. Gandhis formulation of
committed judiciary offered. As Professor Upendra Baxi pointed out in 1980, the court
referred to the people more frequently in 1977-79 than in 1950-77.
Even the so-called rights revolution of the post-Emergency court has involved an everexpanding bunch of unnamed rights flowing from Directive Principles being read into
Fundamental Rights. The right to life jurisprudence under Article 21 has been extrapolated
to include all kinds of socio-economic rights. The only right it seems to exclude is the literal
mandate of Article 21, a negative right against any deprivation of life or personal liberty by
the state in an illegal manner. While this Article became a receptacle for all manners of
positive rights, the all-important civil right it was meant to embody no longer gets the respect
it is due. Rights are meant to lead to remedies, but the proliferation of rights under Article 21
exemplifies what legal scholar Clark Cunningham called Rights without Remedies and
Remedies without Rights, that is, bare enunciation of unnamed rights without any chance of
enforceability and its converse, grant of reliefs like state compensation as largesse without
fixing responsibility.
The courts deference to legislative wisdom in the case of Section 377 of the Indian Penal
Code, abdicating its classic function of judicial review, contrasts neatly with orders such as
the national anthem one, where the court happily legislates. With PIL, the post-Emergency
Supreme Court is very rarely a court for judicial review and far more often, the court for
judicial populism.

Anuj Bhuwania is a lawyer and an anthropologist. His book Courting the People:
Public Interest Litigation in post-Emergency India will be released later this
month. He currently teaches at South Asian University, New Delhi.

http://scroll.in/article/821484/is-the-modi-governments-restriction-on-bank-withdrawalssupported-by-law

IS THE MODI GOVERNMENTS RESTRICTION ON BANK

WITHDRAWALS SUPPORTED BY LAW?
Since the shock announcement by Prime Minister Narendra Modi on November 8 that all Rs
500 and Rs 1,000 notes would be withdrawn effective that very night, we have heard a
variety of reactions from the Opposition.
The Congresss Rahul Gandhi condemned the move for the inconvenience that it caused to
the common man, the Aam Aadmi Partys Arvind Kejriwal has described it as a scam meant
to benefit Bharatiya Janata Party associates and the Trinamool Congresss Mamata Banerjee
lashed out at the move, calling it draconian. Only Bahujan Samaj Party supremo Mayawati
termed the decision an undeclared economic emergency, which has ended up hurting poor
people and farmers.
While there is a tendency to dismiss Mayawatis statement as political rhetoric, she does have
a point regarding the Emergency narrative because the government notification authorising
the demonetisation has also effectively frozen property rights by placing limits on cash
withdrawals. While it imposed a restriction of Rs 4,000 on the exchangeof banknotes (which
was increased to Rs 4,500 on Sunday night), the notification restricted account holders
from withdrawing more than Rs 20,000 per week (this limit was increased to Rs 24,000 also
on Sunday.)
In effect, the Modi government has interfered in the account holders private contractual
relationship with her or his bank and suspended the individuals constitutionally-guaranteed
right to enjoy property underArticle 300A of the Constitution. And it has done so in a manner
that lacks legal sanction.
The right to property
When the Constitution was adopted in 1950, it contained a fundamental right to acquire,
hold and dispose of property in Article 19(1)(f). This fundamental right was quite
contentious given the land reform legislation that Prime Minister Jawaharlal Nehru was
trying to push through Parliament. Despite several legal provisions aimed at circumventing
judicial scrutiny of such legislation and diluting the right to property, neither Nehru nor Indira
Gandhi deleted that fundamental right. That honour went to the post-emergency Morarji
Desai government, which proposed the 44th constitutional amendment in 1978. This

amendment abolished the fundamental right to property but still retained it as a constitutional
right in Article 300A. As it stands today, Article 300A states,
No person shall be deprived of his property save by authority of law.
The last decade has brought the right to property back into the spotlight with several highvoltage debates over land acquisition laws and the forest rights of Adivasis, thereby proving
that the right to property is of importance to even the poor and marginalised.
The money in an individuals bank account definitely comes within the legal definition of
Article 300A. Thus, when the government imposes a limit on cash withdrawals it is in effect
restricting the right of account holders to access their deposits because although they can
technically access their money through electronic means or via cheque, the terms of contract
with the bank give account holders the right to access the funds in the form of cash.
By curbing this right to access funds on the terms as per which the funds were deposited in
the bank, the government is, in effect, depriving account holders of their property for a term
of two weeks and perhaps longer.
The question that arises now is: has the Union government deprived account holders of their
property for two weeks as per the law?
This is a crucial point because the Rs 10,000 limit on daily cash withdrawals from banks
(removed on Sunday night) and the weekly withdrawal cap of Rs 20,000 (that was increased
by Rs 4,000 on Sunday), was critical to this demonetisation plan in order to prevent a run on
the banks by citizens, which could have imploded the national economy. Without a
withdrawal limit in place, the government could not have imposed the demonetisation plan
with such short notice.
The government notification
The entire demonetisation exercise has been conducted by the issuance of gazette notification
no 2652 by a joint secretary under Section 26(2) of the Reserve Bank of India Act, 1934.
Previous efforts at demonetisation such as the one in 1978 was done through an Ordinance
and followed by a parliamentary legislation called The High Denomination Bank Notes
(Demonetisation) Act, 1978. A copy of this law can be accessed on the fabulous Indian
Kanoon site. So why did the Morarji Desai government issue an Ordinance and subsequently
pass a legislation rather than issue a notification?

The answer most likely hinges on Section 26(2) of the Reserve Bank of India Act, 1934. This
provision gives the Union government the limited power to demonetise certain currencies
through a notification. This provision does not, however, give the government the power to
freeze bank accounts through limits on cash withdrawals, disrupt normal banking operations
and impose mandatory disclosure requirements (such as identity cards) while depositing cash
into bank accounts or exchanging the now worthless legal tender.
For ease of reference I reproduce Section 26(2) as follows:
26. Legal tender character of notes.
(1) Subject to the provisions of sub-section (2), every bank note shall be legal tender at any
place in 4[India] in payment or on account for the amount expressed therein, and shall be
guaranteed by the 5[Central Government].
(2) On recommendation of the Central Board the 6[Central Government] may, by notification
in the Gazette of India, declare that, with effect from such date as may be specified in the
notification, any series of bank notes of any denomination shall cease to be legal tender7[save
at such office or agency of the Bank and to such extent as may be specified in the
notification].
A plain reading of the provision clearly indicates that the Union government may issue a
notification to demonetise legal tender but there is no mention of any powers to curb the
constitutionally-guaranteed rights of citizens to access their money or the rights of banks to
conduct their business.
Therefore, if the Union Government lacks the power under the Reserve Bank of India Act to
place limits on withdrawals from banks or mandate identity proof while depositing money, it
cannot force such requirements on account holders because Article 300A of the Constitution
protects them from such interference unless it is done through a law.
The government could have perhaps circumvented this problem by enacting an Ordinance, as
was done in 1978. However, unlike a notification, an Ordinance has to be approved by the
Cabinet as per the provisions of the Government of Indias Transaction of Business Rules,
1961. Given this prime ministers style of functioning, it is possible that he wanted to limit
the number of people who knew about this decision in order to stop any leaks. From media
reports it appears that the Cabinet was not consulted on this issue.

The more important question, however, is whether even an Ordinance of such a nature would
have been constitutional because if the government can be given the power to freeze cash
withdrawals from bank accounts for 15 days, what is to stop it from imposing such
restrictions for 50 days or 500 days? The answer most likely is that such a move would
violate the constitutional right to property under Article 300A. But that is a topic of
discussion for another day.
Prashant Reddy Thikkavarapu writes for SpicyIP, a blog about Indian Intellectual Property
Law and is a Research Associate at the School of Law, Singapore Management University.

http://www.epw.in/journal/2016/50/commentary/demonetisation-and-rule-law.html?
0=ip_login_no_cache%3D5ea8cc6f94ff1740a1b0ff721e338915

DEMONETISATION AND RULE OF LAW

Since 8 November 2016, for the third time in modern Indian history, the central government
has declared notes of certain denominations to no longer be valid legal tender. When
announced by the Prime Minister on 8 November, it was pitched as a measure, inter alia, to
tackle the black money problem in India. Since then, the justification has changed; it is
now supposed to make India a cashless society. The chaotic effects of demonetisation have
been in the banks and ATMs which are out of cash, the businesses suffering severe losses, and
the loss of income and assets of the poorest (Bharadwaj 2016; Gopalakrishnan 2016). Not to
mention the people who are said to have died as a result of standing in the queues
(Wire 2016), the shock of having lost their money or some proximate reason, whose ultimate
cause lies in the unprepared and ill-thought-out manner in which the demonetisation exercise
has been carried out.
The larger effects of demonetisation on the Indian economy are debatable. There are,
however, questions that have been raised about the manner in which demonetisation has been
carried out by the government. Several petitions have been filed in the high courts and in the
Supreme Court as well, challenging the demonetisation or its specific aspects. No final
verdict has been rendered at the time of writing this, but if the approach of the Madras,
Karnataka and Bombay High Courts is anything to go by, the courts seem reluctant to
interfere in the process. While the Supreme Court did make a few stray observations about

the difficulties being faced by people as a result of demonetisation, it has not stepped in
either.
This does not mean that there are no legal problems with the current demonetisation exercise.
The petitioners challenging it have questioned the legality of the manner in which it has been
done, the specifics of certain moves and the rights violations it possibly entails. These require
some serious discussion, not only in the context of demonetisation, but also for what it tells
us about the state of the rule of law and constitutional government in India.
To this end, therefore, this article will address the legality of demonetisation in three parts. In
the first part, the legality of the demonetisation through notifications will be discussed. In the
second part, the implications of demonetisation on the right to property will be discussed. In
the final part, I argue that the way demonetisation has been carried out is against the rule of
law.
Legality of Demonetisation
Unlike in the past two instances in 1946 and 1978, on this occasion, demonetisation has been
done through the issuance of notifications (Notification Nos SO 3407[E] and 3408[E]) under
subsection (2) of Section 26 of the Reserve Bank of India Act, 1934. Under this section, the
central government has the power, in consultation with the Reserve Bank of India (RBI), to
declare any series of notes of any denomination to no longer be legal tender. It has been
contended by some petitioners that the said power cannot be exercised to declare all series of
a note to no longer be legal tender. They point to the fact that the previous demonetisation
exercises were carried out through ordinances which later became laws passed by the
competent legislature, to contend that the present exercise cannot be carried out merely by the
central government issuing notifications for this purpose.
While there is some merit in this line of thinking, it is not legally tenable. The interpretational
argumentthat any cannot mean allfinds no support in the principles of interpretation
or in well-established Supreme Court precedents. Section 13 of the General Clauses Act,
1897 states that unless the context otherwise requires, in a statute, the singular includes the
plural. Moreover, contrary to the assertions of the petitioners, in L D A v M K
Gupta (1994) and in Sk Mohammed Omer v Collector of Customs (1970), the Supreme Court
has held that the term any includes all. Any series in Section 26 of the RBI Act should,
in all circumstances, include all series of a given denomination and there is no other

provision in the RBI Act or any other law which requires it to be given a more restricted
meaning.
What of the constitutional argument that demonetisation necessarily requires a law to be
passed by Parliament?
For context, the Janata Party government enacted the High Denomination Bank Notes
(Demonetisation) Act, 1978 after promulgating an ordinance to this effect first. Like the
notifications in the context of 500 and 1,000 notes, the demonetisation act declares
1,000, 5,000 and 10,000 notes as no longer being legal tender. It also provides for a
mechanism for deposit and exchange of these notes within a specified time. Crucially,
however, the demonetisation act prohibits persons from accepting or tendering the
demonetised notes in any context, though it does not make it a criminal offence to do so.
Under the present demonetisation exercise, there is no legal prohibition against accepting or
tendering 500 and 1,000 notes. It only means that it is not against the law to refuse to
accept such notes. The matter has however been confused by the exemption clauses in
Notification No 3408 (as amended, repeatedly since the announcement). It does not make
clear if the places where the note is required to be accepted are obligated under law to do so,
and, if they do not, whether they are liable for any penalty.
Under the Constitution, certain things can only be done by a law made by Parliament. The
fixing of Supreme Court and high court judges salaries for instance, appropriations from the
public exchequer, and limitations on the right to life and liberty, among other things, can only
be done by a law enacted by the legislature. This does not imply that everything that the
government does automatically requires a law made by legislature, and certainly not
demonetisation.
Right to Property and Legitimate Expectation
Another plausible argument that could be made against the demonetisation exercise is that it
is a violation of the right to property protected under Article 300-A of the Constitution
(Reddy 2016). Unlike in the Constitution as it was originally brought into force, the right to
property now is merely a right against expropriation of property without the authority of law.
Even though the words of Article 300-A are analogous to those in Article 21, the protections
against the deprivation of property are not in the nature of substantive due process as Article
21 has been interpreted to mean.

In the context of demonetisation, it has been argued that Notification No 3407 extinguishes
the right to property without any authority of law. Specifically, it is contended that limits on
withdrawal of cash from bank accounts and exchange of the notes are contrary to the mandate
of Article 300-A. Therefore, it has been said, by refusing to let people withdraw their money
in cash, the government has restricted the right to property, and, by placing limits on
exchange, extinguished the right entirely.
The argument is not without merit. The Supreme Court in Bishamber Dayal Chandra Mohan
v State of Uttar Pradesh (1982) has held that an Executive Order is not law for the
purposes of Article 300-A. This could be extended, therefore, to mean that unless the
legislature allows imposition of cash withdrawal limits under a specific provision, or passes a
new law, the government is constitutionally prevented from doing so.
There are two possible responses to this argument. One is based on the RBI Act itself and the
other on the Constitution. In exercising this power under Section 26(2) of the RBI Act, the
government has ancillary powers to enable it to carry out the demonetisation smoothly.
Arrangements obviously have to be made to replace the currency, and the lawmakers were
quite aware that the exercise is difficult in a vast country like India and enough discretion
needs to be given to the government to make the necessary arrangements. To that extent,
currency withdrawals and exchange limits are also traceable to Section 26(2) of the RBI Act
because they are in furtherance of a demonetisation exercise and not for other purposes. The
doctrine of ancillary powers is well recognised legally.
A second argument addressing this can be made with reference to the powers of the executive
traceable to Article 73 of the Constitution. This provision vests the union executive powers
on those subjects that the Parliament has power to make laws on, as listed in Schedule VII.
The only limitation on this power is that it has to be exercised in accordance with law made
by Parliament. Therefore, where Parliament has made a law, executive power has to be
exercised in accordance with such law, and even where it has not, the executive is still free to
act.
At the moment, there is no provision in any law that prohibits the central government from
imposing limits on cash withdrawals from banks or exchange of cash. There is also no
provision that vests this power with another agency such as the RBI. There is, therefore, no
limitation on this power and when the central government has issued Notification No 3407, it
has done so partly in exercise of the executive power under Article 73.

The question still remains: Would this amount to an infringement of the right to property
without the authority of law?
Even if it is assumed that limiting cash withdrawals and exchanges is a violation of the right
to property (it is not necessarily so since it has been held that regulating the use of property is
not an infringement on the right itself [K T Plantation (P) Ltd v State of Karnataka 2011]),
the fact that this has been done by the executive on the basis of either a statutory power or a
constitutional power means that it has been done with the authority of law. The Supreme
Court, in holding that a mere executive order would not be law for the purposes of Article
300-A has also gone on to hold that a rule, delegated legislation, a statutory order or anything
that has the force of law, that is, lays down norms (as opposed to specific directions to an
individual [Gulf Goans Hotel Company Private Limited v Union of India 2014]) is law for
the purposes of Article 300-A. Notification Nos 1307 and 1308 are not directions to specific
authorities, but lay down norms binding on all banks and persons holding accounts. In the
absence of any law to the contrary, such norms are valid and enforceable.
There is one problematic aspect of the demonetisation exercise when it comes to cash
withdrawals. When demonetisation was announced on 8 November 2016, it was stated by the
Prime Minister that cash exchanges would be allowed till 30 December 2016. This was also
indicated in Notification No 3407. This information was repeated through advertisement in
newspapers and other media. However, in a sudden volte face, all cash exchanges in banks
were stopped with effect from 25 November. This was done by giving a four-hour notice on
24 November. This came after cash exchanges were restricted from 4,500 to 2,000, that
too for the entire duration of time till 30 December. Exchanges are now allowed only at RBI
branches located in state capitals.
Such a rollback raises serious ethical and moral questions about the governments behaviour.
Can it promise one thing to citizens, legally, and repudiate it in less than three weeks? If the
government assures citizens that their money is safe and they have plenty of time to have it
exchanged, and when people have acted upon it, given the massive queues that have formed
around banks, would it be justified in going back on this promise with no notice in a short
time?
Legally, such actions of the government could be challenged as a violation of the doctrine of
legitimate expectation. Originally evolved by United Kingdom courts (Schmidt v Secretary of
State for Home Affairs 1968), it has been applied in Indian Courts (Navjyoti Cooperative

Group Housing Society v Union of India 1992). This doctrine simply means that where a
citizen has taken a certain benefit on the basis of the governments promise, the government
cannot later deny the benefit to the citizen. It does not apply to the laws made by Parliament,
but only to executive acts. A person who has not exchanged her notes and who does not have
a bank account could, therefore, make a claim on this basis asking for the original timelines
to be restored.
It is a different matter that the government could plead impossibility in complying with the
courts orders to restore cash exchanges since it is quite likely that it does not actually have
enough cash to meet the demand. This would also expose the utter lack of preparation and
foresight in the demonetisation exercise.
Rule of Law
While the demonetisation per se is probably legally sound, the manner in which the
government has responded to events afterwards has been chaotic and misguided. The daily
announcements with changing rules and new prohibitions not only cause disorder, but also
undermine the rule of law in the country. The cornerstones of what constitutes rule of law are
stability and certainty in norms (Fuller 1964). The daily barrage of demonetisation
announcements, ad hoc and ill-thought-out as they are, also point to a fundamental
breakdown in the rule of law. Given the vast scale of the demonetisation exercise, affecting as
it does every part of the country and virtually every sector of the economy, the haphazard
way in which it is being carried out suggests a regime ill-equipped, or simply incompetent, to
do it properly.
Apart from the deaths caused or the jobs lost, demonetisations lasting impact may be the
general populaces loss of faith not only in the currency, but also in the governments ability
to govern in accordance with the rule of law.

http://www.thehindu.com/opinion/op-ed/The-mother-of-all-disruptions/article16946195.ece

THE MOTHER OF ALL DISRUPTIONS

Jean Drze is Visiting Professor at the Department of Economics, Ranchi
University.

The tremendous power of the software industry in India may help explain why the
disruptive effects of demonetisation are being taken lightly.
Evidence is mounting of the disruptive effects of the recent move to renew currency notes,
known as demonetisation. Disruption is actually a mild expression. What is happening is a
catastrophe for large sections of the population. Farmers have dumped vegetables by the
roadside for want of a remunerative price. Migrant workers have returned home after losing
their jobs. Street vendors are struggling with a slump in demand. And, of course, many
people have died while waiting in queues outside banks or committed suicide after
unsuccessful attempts to get cash from the banks.
The disruptive effects of demonetisation also have other dimensions. The banking system, for
instance, has been severely disrupted. For one thing, the constant flip-flop on rules and
stringent restrictions on peoples access to their own accounts have undermined the
confidence of the public in the banking system. For another, it would be surprising if the
considerable powers that were given to bank managers in recent weeks had not led to a
spread of corruption in the banking system.
What is astonishing is how little concern this catastrophe is causing in the corridors of power.
Smug reference is made from time to time to the inconvenience faced by the public, and
people are asked to grin and bear it for the sake of the nation. Little is being done to alleviate
their pains.

The disruption lingo

To understand this inertia, it helps to remember that the word disruption has a positive
connotation in some circles, particularly that of technological innovation and especially
software innovation. For instance, when Nandan Nilekani stated in an interview
with Business Standard last August that disruption is waiting to happen in the banking
system, he saw that as a very positive prospect an opportunity for new financial
technologies to step in.
One possible reason why disruption is so popular among software developers is the role of
network effects in this field. New software typically becomes viable only if a sufficiently
large number of people use it. This may require displacing the dominant product, and that, in
turn, often involves a disruption of some sort. Displacing Google, for instance, would
definitely require some kind of tectonic shift in the world of search engines. Similarly,

cashless payment systems like Paytm and Mobikwik work best when large numbers of people
adopt these new products at the same time.
Seen in this light, there is something miraculously providential in the demonetisation move as
far as the cashless payments industry and its offshoots (including on-line security services)
are concerned. This must have been beyond the wildest dreams of the wizards of cashless
payments. Just a year ago, the idea of a cashless economy sounded like utopian waffle.
Today, it is the buzzword. Not only are cashless payment systems riding on the wave of
demonetisation, the government is also throwing its weight behind the technology, mobilising
numerous departments for this purpose and lending its advertisement powers to the industry.

Disruption and opportunities

The problem with the disruption lingo is that it easily becomes a licence for inflicting
hardship on ordinary people and making a virtue of it. Bank premises are overcrowded?
Wonderful, thats disruption at its best. ATM queues are getting longer? Nothing like it.
People are losing jobs? Well, disruption can afford some short-term collateral damage. In
fact, objectively speaking, the more the disruption, the better for those who are trying to use
this situation as an opportunity to promote their new products. I am not saying that they are
responsible for creating the disruption, or applauding it, but it is a fact that they benefit from
it. Considering the tremendous power of the software industry in India, this may help to
explain why the disruptive effects of demonetisation are taken lightly.
Among the leading lights of this lobby is the Indian Software Product Industry Round Table
(iSPIRT) mentored by Mr. Nilekani, an association of black-belt innovators and
entrepreneurs. Take a look at their website (and also at indiastack.org) if you have time it
is an eye-opening exercise. These guys (and they are mainly guys) are smart, they think big,
and they have ideas. The question remains ideas for whom? The website makes no secret
of the fact that the ultimate purpose of iSPIRTs work is to create business opportunities for
the Indian software industry, not just at home but in the entire world. Under the title Our
Game Plan, for instance, the site explains that our ambitious goal is to create an adoption
wave for software products within the Indian SMB sector. And guess what, the way to do
this is to create a new generation of software product companies and disrupt global
markets, no less.

The first step, still according to the iSPIRT website, is smart demand side evangelization
(sic). Presumably, this involves things like selling Aadhaar to the public as a voluntary
facility, or claiming that the purpose of Aadhaar is is to improve welfare programmes. In
fact, as Reetika Khera has lucidly explained in a series of articles, it is Aadhaar that has
benefited from welfare programmes (by using them to push people to Aadhaar enrolment
centres), not the other way round. Quite often, the impact of Aadhaar on welfare programmes
has actually been disruptive, in the literal sense of the term. For instance, the recent
imposition of Aadhaar-based biometric authentication on the Public Distribution System has
caused havoc in several States, notably Jharkhand and Rajasthan.

Converging interests
What is disturbing is how government policy is now aligned with the interests of these
business lobbies. The governments advertisements for cashless payment systems read like a
rehash of the private companies own rhetoric (as a private consultant recently confided, our
marketing costs have gone down because the government is doing the advertising). The
revolving door between government and corporations is getting wider every day. And as
mentioned earlier, the entire demonetisation drive is an uncanny miracle for the software
industry, as if the industry itself had written the script.
None of this is to deny that cashless payments may have some merits. But there is no reason
for state power to promote them single-mindedly, that too by crashing the economy.

http://www.thehindu.com/opinion/lead/The-new-war-on-piracy/article14587200.ece

THE NEW WAR ON PIRACY

Lawrence Liang is a professor of law at Ambedkar University, Delhi,
currently teaching at Yale University.
The punitive rhetoric underlying the warning about accessing torrent websites addresses only
one axis of the debate. It would be more accurate to see piracy as a global pricing problem

Recent reports about the change in copyright infringement warnings on various websites have
triggered anxiety among many Internet users in India. While the government has maintained
a list of banned websites for quite some time, the warning that one earlier saw merely
mentioned that the website had been blocked under directions from the Department of
Telecommunications, while the new message warns against the viewing, downloading,
exhibition and duplication of the contents of the URL as being offences which are punishable
under Sections 63, 63-A, 65 and 65-A of the Copyright Act. It further states that these
provisions prescribe a punishment of up to three years and a fine of up to Rs.3 lakh.
Internet users in India, many of whom routinely use torrent sites to access a range of
entertainment and other content, are understandably worried about the new punitive rhetoric
that underlies the warning. It may therefore be useful to unpack what the law actually says on
the point and also examine the impulse behind this rhetorical shift within the logic of
copyright enforcement.

Conflating

various

provisions

Sec. 63 of the Copyright Act, which deals with the offence of infringement, provides that any
person who knowingly infringes copyright or abets in the infringement of the same may be
punished with imprisonment (minimum of six months and extendable to three years) and
fined up to Rs.2 lakh. The new warning seems to have accounted for inflation and arbitrarily
extended the fine amount to Rs.3 lakh, but that is only one part of its disingenuity. What the
warning does is to conflate all the provisions and flatten them as though they all deal with a
singular thing called infringement.
It is important to remember that the provision of the Act itself distinguishes between
commercial and personal infringement and it provides that where any infringement has not
been made in the course of trade or business, the court may impose a term for less than six
months and a fine of less than Rs.5,000. Sec. 63-A deals with repeat offences and provides
for a higher fine and imprisonment term for someone who has already been convicted for an
offence under Sec. 63. Sec. 65 deals with the possession of plates for the purposes of making
infringing copies, a term inherited from print piracy which deals with mass reproductions of
material such as bestsellers. And finally Sec. 65-A deals with the circumvention of
technological measures for protecting copyright or what is popularly known as digital rights

management with the intention of infringing rights. And even within this provision there are a
number of exceptions provided where someone may legitimately circumvent a measure for
technological protection.
It is abundantly clear that the warning is neither accurate in law nor entirely honest in its
invocation of the penal provisions of the Copyright Act. While it is true that some of these
provisions penalise the infringement of copyright, the fact is that the provisions which have
been cited in the warnings all pertain to different acts and to different degrees of liability
accruing based on the nature of the act, the pecuniary gains, etc. The requirement of
knowledge in the case of Sec. 63 and intention in Sec. 65-A establishes a relatively high
burden of proof on someone claiming infringement, but the warning seems to shift this
burden and creates a presumption that any act with respect to a prohibited URL would
necessarily be infringement.
What happens in cases when someone uses file-sharing mechanisms as a way of distributing
public domain material? Raj Kapoors Awaara, for instance, is available through The Pirate
Bay, but it is a film whose term of copyright has expired and may be legitimately downloaded
from The Pirate Bay. By flattening the differences between the provisions, the warnings seek
to rely on a by-now-well-known strategy of shock and awe. Just as the global war against
terror obfuscated the debate through the rhetoric of shock and awe, the war against piracy
relies on a similar strategy that conceals rather than illuminates some of the key questions.

Piracy

as

productive

force

The question of copyright and the appropriateness of a model that treats intangibles as
property has been seriously questioned both in terms of its normative basis as well as in terms
of its efficacy. Rather than just seeing media piracy as a legal or a moral problem, it would be
more accurate to see it as a global pricing problem. High prices for media goods, low
incomes, and cheap digital technologies are the main ingredients of global media piracy.
Media piracy arises when market failures meet increasingly cheap and improved
infrastructures (bandwidth, hardware) of information transmission. Does this pose a problem
to owners of copyright? Of course it does, but there is nothing new about that. Every
technological advancement starting from the print revolution has transformed the ways we
access knowledge and culture and innovations in technology have also been accompanied by
innovations in business models. Thus while the introduction of VHS and video cassettes were

predicted to be the death of the film industry, what happened instead was the creation of a
new business model of home entertainment. In the Indian context, Moser Baer recognised
this with their introduction of low-priced DVDs which competed with the pirate markets. So
assuming that the desire for low-cost entertainment is not going to disappear, the options are
either a rethink of the business models or to rely on penal laws to protect any older business
model.
The shift in the nature of the warning seems to suggest that the government and private
players have opted for the latter. This may be a short-sighted strategy that misrecognises the
role piracy has played not just as a destructive but also as a productive force. Piracy indeed
does impose a range of costs on producers and distributors of content, but in developing
countries they also act as the main source of access to a wide range of media and knowledge.
One good example of this is LibGen, a site which provides access to thousands of pirated
books, many of which are not just not available or affordable in India. While this is indeed
piracy, if we were to suspend for a moment our legal and moral indignation and ask what
other descriptions one could give of LibGen, then as Bodo Balazs a scholar of piracy
studies provocatively argues, it has been the single greatest knowledge transfer project in
the history of humanity.

Not

settled

debate

It is also important to understand the dynamics of media markets in emerging markets, and
the harms of piracy should not be treated as settled question, but one that needs more debate.
Studies have shown that the perceived harms of copyright infringement may be overstated
and the presumption that every download equals a lost sale is just not true. In a global
comparative study of media piracy in emerging economies it was found that there was no
correlation between the commercial success of a film and the number of times that it had
been downloaded, and it was indeed the case that the films which were downloaded the most
were also the most successful ones at the box office.
The new warnings and the panic it seeks to create are counterproductive for all parties
consumers, governments and copyright interests that drive the enforcement agenda, and
there is a need to frame the debate within a larger structural understanding of the complex
dynamics of the costs imposed by more stringent enforcement of copyright.

The history of technology and cultural production is a contested history in which new
technologies disrupt existing power relations, redistribute the means of cultural production
and redefine questions of access. The war against piracy addresses only one axis of the debate
and as with all wars which are being lost, you hope to win by heightening the rhetorical
stakes. Perhaps this ill-informed and misguided set of warnings should be taken not just as a
moment in which we panic but one in which we collectively raise larger questions and
challenge the logic of stronger penalising of knowledge offences. We are, after all, from the
country which produced the most subtle text of literal and moral wars the Mahabharata
in which Ekalavya, when denied a privileged education, created the first pirated copy of
Dronacharya to educate himself. Ekalavya paid a terrible price the cutting of his thumb
but there are still millions who bleed as a result.

http://www.thehindu.com/opinion/op-ed/Assessed-approved-but-scant-attention-tocompliance/article16946182.ece

ASSESSED APPROVED BUT SCANT ATTENTION TO COMPLIANCE

Manju Menon and Kanchi Kohli are with the Centre for Policy Research-Namati
Environmental Justice Programme.
September 2016 marked a decade of the Environmental Impact Assessment (EIA)
notification, a short, subordinate legislation whose powers far outweigh its text.
Promulgated first in 1994 under the Environment (Protection Act), 1986, and then reengineered in 2006, this legal tool is ostensibly our mechanism to arrive at a balance of
environmental priorities and developmental needs. The law provides for an informed process
for site selection and grant of approval for an industry or project in any area. It involves the
drafting of an EIA report with a statement of how impacts could be mitigated or offset and
under what conditions the project should be approved, if at all. Like most environmental
matters, this would have been an extremely technical process, but for one reason: the process
of public hearings and consultations.

The first phase of socialisation

One of the first environmental public hearings was held for the Enron project in Karnataka in
the early 1990s under police protection. At that time, the government imagined it as a forum
for seeking consent from the people who would live in the neighbourhood of these projects.
The public hearing process was made a part of the 1994 EIA notification only in 1997. This
space is the legacy of a generation of activists within and outside the government those
who had a healthy criticism of the state and what it could do in the name of public interest
as well as those who felt that better decisions came from dialogue. Despite legal amendments
to restrict this forum and cynicism on the part of the participants that they are being co-opted
into an inherently unjust project approval process, the public hearing process till date gets
enormous numbers of people to debate thorny questions of development.
Public hearings have been successful in drawing attention to the large-scale impacts that
projects have on communities and the environment. When projects have gained approvals
despite severe public opposition, these hearings have been excellent open classrooms to learn
about the political economy of development and the passing on of risk to the poor and
vulnerable. In several recent cases, these fora have been used to negotiate the mandatory
conditions under which projects should be given approvals.

The compliance gap

What happens after public hearings and a project is granted environmental approval? This
phase deserves urgent attention if we are to make any dent on the issues of air quality,
shortage of freshwater, and degradation of productive farms and fishing areas. Every project
granted approval from the Environment Ministry, the State departments, or specialised bodies
such as the Pollution Control Boards or Central Ground Water Authority come with
conditions that have to be followed. The regulatory regimes for project approval pay scant
attention to the compliance of these conditions. Environmental compliance has been left to
the vague and closed-door practices between two parties the government and the project
developer. With no third party to oversee the process or the results of compliance, it remains
a facile, bureaucratic exercise.
What this means is that in Janjgir in Chhattisgarh, coal-fired power plants dump noxious fly
ash on roadsides and farms routinely; in Odishas Keonjhar district, slurry from iron ore
mines have denuded paddy fields and freshwater streams for over 15 years; and on the
Saurashtra coast of Gujarat, bauxite or limestone dust saturate the air. Over 12,000 projects
all over the country have been given EIA approvals with conditions that are meant to reduce

harm to the environment and those who live around them. The number is greater if pollution
consents are added to the list. There are only a few independent studies by researchers and the
Comptroller and Auditor Generals office to show the poor levels of compliance.
Environmental institutions collect some data on a regular basis through their monitoring
mechanism but these data are not accessible to citizens in any meaningful way. While
regulators complain that they have no organisational resources to do this well, it is also true
that there has never been enough reason for them to pay attention to the compliance of
projects that they once approved. After all the biggest-ever government programme on cleanups, the Swachh Bharat Abhiyan, has preferred to focus on how citizens create filth rather
than the environmental mess that state practice has produced systematically since the 1950s.

A renewed engagement
As we close in on a decade of the new EIA notification, it is imperative to expand the process
of socialising environmental governance to the arena of compliance. Rather than an empty
legal or regulatory category, compliance needs to be seen as the minimum acceptable
standards of development through a social contract between projects, governments and
communities. It could tie the expectations of communities to be protected against risk with
their aspirations for development through production. In each one of the scores of projects
that are operational today, it is impossible to know if the safeguards in their approval letters
are adequate and what their upper limits are. These issues can be addressed meaningfully
only when communities that are forced to live near these projects are allowed to engage with
environmental regulators. The priority or value setting that takes place at the time of public
hearings has to be sustained through the life of the project through the process of compliance.
In addition, systematic data collection and developing of public archives on the compliance
of projects over time, sectors and regions can go a long way in reframing the knowledge and
regulatory structures for environmental governance.