Libertatem Magazine - Issue 27 [April 2017]

LIBERTATEMApril 2017 MAGAZINE www.libertatemmagazine.comEdition 27Snapchat Fiasco:When PatriotismSees No Reason Featured Story National Health Policy, 2017

Libertatem Magazine - Masthead LIBERTATEM MAGAZINE www.libertatemmagazine.com Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Sarthak Sonwalkar (LAMP Fellow) Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Rachana K (Symbiosis Law School, Pune) Aishwarya Dhakarey (Symbiosis Law School, Pune) Shreeyash Udit Lalit (Campus Law Center, Delhi University) Apurv Taran Jain (National Law University, Odisha) Richa Sankhla (Institute of Management, Nirma University) Anushka Jain (Institute of Law, Nirma University) Pragalbhi Joshi (National Law University, Odisha) Pragya Dhoundiyal (Faculty of Law, Delhi University) Somya Stuti (Amity Law School Centre-II) Content Writers Vaibhav Sharma (Rajiv Gandhi National University of Law) Sri Vaisakhi Muddana (Damodaram Sanjivayya National Law Univ.) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan VP - Marketing Akshit Taneja (Institute of Management, Nirma University) Naveen Jain (Institute of Management, Nirma University) Harsh Gujarati (Institute of Management, Nirma University) Nancy Devpura (Institute of Management, Nirma University) Nitin (Institute of Management, Nirma University) © All Rights Reserved by Libertatem Media Group [2017]

Content of the 27th editionContents April 2017 Volume 3 Number 4Cover Story 44 Snapchat Faisco: 23 16 When Patriotism Sees No Reason 08 12 by Shresth VardhanArticles8 National Health Policy, 2017 Game Changer For Ailing Nation by Vaibhav Sharma12 Electronic Voting Machine: Advancement or Debacle? by Shreyan Acharya16 Finance Bill Controversy: Is it a major concern? by Sri Vaisakhi Muddanathe Courtroom22 SC Says “Ganga” & “Yamuna” are legal person by Swarnalee Haldar23 No PILs to be filled in Service Matters by Swarnalee Haldar 22

Libertatem Magazine - Edition 27 [April 2017]Snapchat Fiasco: When Patriotism Sees No Reason By Shresth Vardan India is responsible for a roundabout 200m Facebook users and a fair about 4m Snapchat users which can by no means be construed to be taken as an insignificant number. Hav- ing been said that, Evan Spiegel, the CEO of Snapchat feels that India is too poor a coun- try to even think about expanding his business into. Obviously, such a statement would not go unattended or unwelcomed by the Indian set of onlookers. There is a lot more and deep to this snapchat story than what we have been reading about in the headlines. Or should rather say, depending upon how you look onto it. Hailing over the controversy that a few days back glimmered on the internet marking Evan Spiegel’s trite comment that of calling India a “poor country”, a lot many people, ran enthusiastically high on patriotic fervor and subsequently decided to show their resentment by igniting rants and by storming the internet with hashtags on twitter such as #UninstallSnapchat and #BoycottSnapchat.Page 4

Cover StoryThis social networking anger and the wrath everywhere throughout the week sprangfrom the remarks Spiegel is alleged to have made. As reported by Variety.com, anex-representative Anthony Pompliano amid a private meeting in the year 2015 broughtto the notice of Evan, snapchat’s dull performance and execution in Spain and India byasserting that the application was not getting the desired results and is not taking off welloverseas. He further recommended how Snapchat ought to consider the deep-rooted mo-bile and internet based web of people in India so as to catalyze growth. The suggestionseemed unappealing to the then 25 years old lad and so he was cut halfway by the CEO.The allegedly tagged elitist statement by Evan saw the light of the day when Pompliano’sclaim against the gross neglect and incorrect portrayal of numbers by the company wasput on show to the public by the way of releasing a copy of the suit online.The truth be said. We Indians love to express our outrage against anything that disturbsour façade of patriotism by resorting to a numerous of very influencing activities likebringing down the ratings of an application on Google Play Store and by uninstallingthe applications. It is to be noted that this isn’t the first instance when the country haswitnessed such a slacktivism. History is in itself able to testify that Snapdeal earlier hadto bear the heft of a similarfury. Flipkart is anotherbrand that was forced tobear such a shock, to thepoint that brought abouta drop in its rating to a 1star after it was viewed asgoing opposed to the ideaof net neutrality for whichAirtel was at that pointalready suffering.Affected by the ongoingdeluge of resentment, theparent company Snap Inc.stepped out and taggedPompliano as a “disgruntledemployee fired for poor perfor-mance who filed the lawsuitout of thirst for publicity.”While they came to therescue and out rightlydenied any such remark bySpiegel, the reactions didnot cease. A storm of Face-book and Twitter posts and1 star ratings on Play Storeand Apple’s App Storehighlight numerous people voicing out their resentment. Page 5

Libertatem Magazine - Edition 27 [April 2017]The most crucial tangent that is still ignored by many is that there is no direct statementmade by Evans. He never made the alleged statement that India is a poor nation. All of thisis a boiled-up stock of the broth that started to cook in a document of suit filed by a dis-pleased employee. This most recent shock could be really unfair to the company and haveserious setbacks.I am likewise un-able to figure outwhy we Indians feelso outraged abouta mobile applica-tion that doesn’tconsider India as agood or profitablemarket? How canin any stretch ofimagination a CEO’sasserted remark/statement shake thepillars of our pride?I haven’t seen Spanish individuals flooding the online networking (Facebook or Twitter)with bolsters about highlighting their dissatisfaction in this regard. Is it accurate to say thatthey are offending and uninstalling Snapchat? As a result of such acts of the people from time to time, I am sorry to say but tragically India is gaining a notorious kind of a reputation on the web. The repu- tation thus gained is that Indians are easily provoked or triggered. Say some cockeyed words in re- gards to India on the internet and Indians will get activated. This has gone up to the extent that they are so blindfolded by their rage that other applications with similar pho- netics get hammered. Snapdeal, unfortunately, was mistaken for Snapchat and fell prey to the ongoing ire. So ludicrous are the Indians over this infamous statement made by the CEO, that they are subjecting Snapdeal to the fate of uninstalla- tions and poor ratings on the Play store as well as the app store. I am sure the word “Snap” is causing a great distress to Snapdeal.Page 6

Cover StoryIs this some sort of a deliberate numb-ness on the part of the people or is itthat they are unable to chalk out thedistinction between the two? Dreadingover a comment that a CEO perhapsmade in a private meeting while dis-cussing about his business plans andstrategy, demonstrates that there issome kind of a serious issue with thepeople of the country.I think that it’s difficult for me as acitizen of this nation to gulp that In-dia as a country has such low self-re-gard that we are so easily provokedby a comment, and then go set up tobrawl. I am certain that history wouldrepeat itself and like previous instanc-es, the present blow against Snapchatwill have no dependable effect andwill be temporary. Everybody nowa-days is too effortlessly affronted andprovoked and the Snapchat debacledemonstrates that this certainly is true. ------------ Page 7

Libertatem Magazine - Edition 27 [April 2017]National Heath Policy, 2017:Game-Changer for the Ailing Nation By Vaibhav Sharma The Union Government has recently launched the National Health Policy, 2017 which is going to guide the national health system in the coming days. The present policy is a revision of the 2002 Health Policy which attempted to universalise the National Rural Health Mission in order to provide basic healthcare even in the remotest areas of the country. The 2002 Policy was successful in establishing an extensive network of Primary Health Centres/ Rural Health Centres to establish the primary level medical institu- tions and to inculcate a habit of formal medical system in the rural areas. The precursor to the 2017 Policy was embedded in the Budget Speech of the Finance Minister which highlighted the aspects of universalisation of heathcare and acknowledged the need of ‘strong state intervention’ to uplift the ailing healthcare system of the nation.Page 8

Articles Backdrop of the National Heath Policy 2017 The 2017 Policy is a successor to the previous policy guidelines in the form of National Health Policy of 1983 and National Health Policy of 2002 which worked within the ambit of the Five Year Plans to cater to the specific target audience for improving the health infra- structure across the nation. Along with the National Health Policy of 2017, the Ministry of Health and Fami- ly Welfare, Government of India also released a Report titled ‘Situation Analyses’ as a background research for the novel policy. The said report discussed the achieve- ments of the 2002 Policy in the light of the Millennium Development Goals (MDGs) with respect to the mater- nal mortality and mortality rate under 5 years of age. The target of MDG-5 for the reduction of the Maternal Mortality Ratio (MMR) was to achieve a drop of three quarters between 1990 and 2015. From the abysmal MMR of 556 in 1991, the nation was able to reduce it significantly to 167 for the year 2011-12. For the un- der-5 mortality rate (U5MR), the MDG target is 42. The progress of the nation in this aspect was 126 in 1990 to the ameliorated to 49 in 2013. But the progress in the segments of decline in birth-rate and neonatal mortality has been disappointing. There is also a wide state-level disparity with U5MR for Assam being 73 and an im- pressive 4 for Kerala. The nation has also not been able to achieve a headway in the reduction of AIDS, malaria, etc. which continue to loom as death threats for a largesegment of the poor population.The report stated that the nation is undergoing a rapid health transition in the presenttimes. The need of the hour is to augment the resources in targeted areas with specific pol-icy guidelines to continue to tread the path of reducing the high incidence of communica-ble diseases in the nation. The need of the 2017 policy increases in the wake of a resurgenthealth industry development in the nation with a double digit growth rate. The clearerefforts to supplement the increasing costs of even the primary health care for the vulnera-ble section of the population has led the policy makers to forage a new policy.Salient Features of National Health Policy 2017The aim of the National Heath Policy of 2017 is to inform, strengthen and prioritise therole of the government in revamping the health care system of the nation. It recognisesthe specialised role of a large decisive investment to be made to the basic infrastructurefor reducing the number of communicable diseases and for aiding the early screening anddiagnosis process. The aim is to provide for universal access to health care by increasing Page 9

Libertatem Magazine - Edition 27 [April 2017]the quality and infrastructure and lowering the cost of treatment. The policy lays stress onthe work ethics, professionalism and integrity in the healthcare sector for improving thetreatment of patients. It highlights the need for a ‘Patient Centred’ quality of care and therevered goal of attaining accountability in this pivotal sector.It emphasises on the goal of achieving ‘Universal Health Coverage’ across the mammothpopulation by improving the access, affordability and capacity building of the secondaryand tertiary level institutions. The aim is also to reinforce the trust of the people in thepublic health system by upgrading the quality and delivery rate of services. It sets the tar-get to achieve 90% immunisation levels for the new born babies by the year 2025. It seeksto increase the utilisation of public healthcare systems by 50% in the year 2025.It accepted the need to establish the ‘State Public Healthcare Cadre’ for better institutionalaccountability. It also moots the idea for ‘National Heath Standards Organisation’ to caterto the task of reviewing standards for both private as well as public healthcare segments.It advocates ‘Medical and Paramedical education’ for bettering the service delivery of thehealth sector. One of the most accomplished suggestions has been the recognition of theidea that the traditional Indian systems of medical care ‘AYUSH’ needs to be integratedwith research processes and training programmes for increasing the patient coverage ar-eas.Focus on Mental HealthThe issue of mental healthcare in India has been one of the most neglected areas in themedical field. It is associated with taboos and dogmas with utter ignorance especially inthe rural areas. People prefer not to disclose their ailments for the fear of stigmatisation inthe society. Even the basic understanding and infrastructure in the public health sector isabysmal. But the 2017 Policy attempts to achieve a paradigm shift in this aspect. It is forthe first time that the National Health Policy of 2017 recognised the ‘Rights of MentallyIll Persons’ to seek access to healthcare and treatment in the government hospitals for thesame. It also envisions to provide protection from the inhumane treatment for the mental-ly challenged individuals. It introduces the ‘nominee representative’ for the treatment ofthe mentally ill patients and allows informed choices to be made on behalf of the patientduring the course of their treatment. It puts an obligation on the Centre and State levelmedical institutions to maintain a list of the mentally ill patients undergoing treatment andto prepare a register of the professionally qualified personnel to provide healthcare ser-vices.The recently passed Mental Healthcare Bill, 2016 provides statutory right to the mentallychallenged in the form of ‘Right to access mental healthcare and treatment’. It also decrim-inalises the ‘attempt to suicide’ which was earlier punishable under Section 309 of the Indi-an Penal Code, 1860. It also bans the use of ‘Electro Convulsive Therapy’ for the mentallychallenged persons with the only exception being the case of muscle relaxants.Lacunae of the 2017 PolicyThe National Heath policy of 2017 is undoubtedly well intentioned to revamp the ailinghealthcare system of the nation, but it doesn’t provide any conclusive measures for thesame. Although it focusses on attaining ‘Universal Healthcare Access’, it would requirehuge budgetary allocations and political will to accomplish its objectives. The same is thePage 10

Articlescase with ‘National Health Standards Organisations’ which is introduced to be a game changer toensure quality healthcare across the nation, but the process of establishment and working has notbeen specified therein. It is pertinent to note that the Central Government in the year 2010 enactedthe Clinical Education Act, 2010 for the clinical standards of health institutions, but compliancewith the same has been lacklustre. It also doesn’t recognise ‘Health as a Justiciable Right’ in orderto reduce the huge burden on the government exchequer. The focus supplemented to ‘AYUSH’ iscommendable, but the policy is not able to differentiate it from the Western medical systems andfails to provide clear directions for the same.Suggestions for 2017 PolicyThe National Health Policy of 2017 is a brave attempt to establish the role of state intervention toachieve the goal of ‘Universal Healthcare Access’. But the road for the achievement of this cher-ished target will be long and treacherous given the present state of poor rural healthcare infra-structure. The focus on ‘professionalism and work ethics’ for this novel profession is admirable. Itis worth quoting that last month the Doctors and Staff members at AIIMS, New Delhi showcasedgreat work ethics and professional commitment when they sabotaged an attempt of politiciansand power hungry bureaucrats for establishing a ‘VIP OPD Counter’ at AIIMS. It is only due tothe united opposition of the doctors, professors and staff members of AIIMS that such an unscru-pulous attempt to oppose the basic ‘Right to Health’ of the ordinary citizens of the nations in thegrab of obnoxious VIP Culture is incapacitated.The emphasis on the mental healthcare also needs capacity building with the present beddingcapacity of nadir level of 0.2 beds/lakh of population. There is a dearth of 4500 psychiatrics and12500 staff members to cater to the needs of the mentally challenged patients. The establishmentof ‘Mental Health Review Commission’ under the Mental Healthcare Bill, 2016 is an attempt tostreamline the mental healthcare delivery. The fact that the National Health Policy of 2017 setsthe time bound targets for access coverage and immunization levels is appreciable. The need isto ameliorate the poor efficiency of the healthcare sector by putting the ‘Clinical Establishments’in the Concurrent List under the Seventh Schedule to the Constitution of India. If the ‘NationalHealth Standards Organisation’ is able to function effectively, then the long cherished dream ofproviding the Healthcare services even to the poorest sections of the population could come true.It is hoped that the National Heath Policy of 2017 is able to achieve its targeted goals for buildinga healthier and stronger nation with reduced burden of curing communicable diseases and im-proving mortality rates. ----------------------------------- Page 11

Libertatem Magazine - Edition 27 [April 2017]Electronic Voting Machines: Advancement or Debacle? By Shreyan AcharyaThe Great Indian Elections conducted under the supervision of the Election Commissionof India apparently mark the celebration of a successful democracy. The tireless effort ofthe officials in conducting the elections in the world’s largest democracy is praiseworthy.ECI has transformed its methodology since the first general elections of 1952. Earlier theuse of the ballot paper was widespread and votes were cast in the ballot box by imprint-ing the stamp on the candidate’s symbol provided in the ballot paper. To ensure the ef-ficacious working of the election process, several security staff members were deployedin the poll booths to maintain peace and ensure safety. The ballot boxes were taken intothe custody of the officials appointed by the ECI and votes were calculated accordingly.However, the conventional system of voting had various impediments to it. The ECI wastasked with tackling the issues of booth capturing, vote tampering, etc. The issue of boothcapturing could be resolved with the deployment of additional security forces and enhanc-ing modes of communication to ensure better coordination and by taking adequate secu-rity measures. However, the issue of vote tampering was resolved by inducting ElectronicVoting Machines that replaced the traditional and outmoded ballot boxes. The move tointroduce EVM proved the sound wisdom and efficiency of the members of the ECI to usetechnology for governance. In the wake of the ongoing tussle over EVMs, a discussion onthe utility of the voting device is due.Page 12

ArticlesThe Emergence of EVMsThe Election Commission of India has been tasked with performing the most criticalfunction that will ensure the life of this democracy. The task is majorly to conduct elec-tions in India. However, there are deeper responsibilities than just merely conducting theelections. With the technological advancement, ECI in the early 80s had come across thechallenges to cope up with these changes. Technology was seen as a powerful weapon tocounter the illicit practices jeopardising the sanctity of the commission. In the year 1977,the then Election Commissioner S.L. Shakdhar requested M/s Electronics Corporation ofIndia Limited to study the feasibility of the electronic gadget for conducting elections. Bythe time the Bharat Electronics Limited introduced an electronic device that was used as atool for voting in the various unions of the company, the ECI taking these developmentsinto consideration proposed a meeting that included the representatives of ECIL, BEL,Ministry of Law and Justice regarding the use of EVMs for conducting the elections. Themeeting concluded with an affirmative decision and in 1982 Kerala became the first Statewhere the EVMs were tested.The implementation of a policy can only be fruitful with the backing of the Legislativeauthority. The Government failed to take steps in amending the Representation of PeopleAct, 1951, and Conduct of Elections Rules, 1961.However, the ECI was determined to useEVMs and foreseeing the benefits of its use, issued the directives under Article 324 of theConstitution for the use of EVMs and conducted elections in fifty polling stations usingthe machines. The strong willed ECI demonstrated its unwavering commitment and de-termination in making the democratic process a living reality. The technological touch tothis process further enhanced its efficiency. However without a law, this selfless effort wasopen to challenge in the court of law. The Supreme Court of India on an Election Petitionfiled by A.C. Jose (A. C. Jose vs Sivan Pillai & Ors 1984 AIR 921) held that “EVMs cannotbe used in an election unless a specific provision is made in law providing for their use”.This judgment was a wake-up call for the parliamentarians that led to the inclusion ofSection 61A in the Representation of People Act, 1951, empowering the commission to usevoting machines. However, the empowerment did not remove the apprehensions. Indiahad seen the dawn of technological advancement which gave room to scepticism regard-ing the viability of these voting machines. The primary reason behind this was India’s lackof expertise in handling such devices. These doubts were removed with the report of theexpert committee under the chairmanship of S. Sampath formed after the recommenda-tions of the Electoral Reforms Committee (Dinesh Goswami Committee). The expert com-mittee held a series of meetings with the officials, manufacturers and related people andcritically examined its credibility by also conducting laboratory tests. After being satisfiedwith the results, the committee declared the use of these machines as secure. By then, nec-essary changes were also made to the Conduct of Election Rules, 1961, and all the by-elec-tions were held with the use of the EVMs. A major transformation in the electoral systemof this country was witnessed in the general elections of 2004 which were exclusively heldby way of the EVMs, and saw the dawn of a reformation in this electoral democracy.Management of EVMs & its BenefitsThe Election Commission of India was aware of the technical glitches associated with theintroduction of the voting machines.Mere introduction of technology does not fulfil thepurpose, its sounds management determines its actual utility. The credibility of the ma-chines was doubted which was later clarified with the expert recommendations, but a Page 13

Libertatem Magazine - Edition 27 [April 2017]shadow of doubt still loomed as to how these machines will be operated and how it canbe safeguarded from the miscreants. The ECI has very carefully allotted the responsibil-ities. The production team is separate from the software development team. The key re-sponsibility of the software development team is to develop a software that is a one-timeprogramme which cannot be altered or tamperedwith. This makes the system hugely corruptionfree. The technical aspects of the EVMs are reg-ularly assessed and before putting the machinesto use, these are carefully examined to avoid anymalfunctions. The ECI also undertakes carefuladministrative security measures for the EVMs.In the words of the former Election Commission-er S.Y. Quraishi “after the poll, the EVMs are sealedwith paper seals and packed in plastic boxes, whichare also sealed. These EVMs are taken straight to thestrong room from the polling stations. The strong roomis closed and sealed in the presence of the candidates/their agents and the Commission’s observer. They arepermitted to affix their own seals on the locks of thestrong room and are allowed to guard it till the count-ing begins. They are provided facilities for this pur-pose. In addition, an armed police guard keeps roundthe clock vigil. Arrangements are also made for videocoverage and CCTV coverage of the strong room roundthe clock. The storage hall so sealed is opened in thepresence of the candidates/ their agents and the Com-mission’s observer on the day of counting”. There isno doubting the effectiveness of the functioningof the Commission. However, the aftermath ofthe UP elections completely drew a different pic-ture. The allegations of several parties after theirdefeat about the inefficiency of the EVMs clearlyreflected their desperation for power and inabilityto handle the defeat. However, even in the heightof criticism and political gimmick, the ECI didnot turn a blind eye. The Commission took cog-nisance of the matter and called for the inquiry toinvestigate the validity of these allegations. Thisgesture provided a different outlook in the course of the pollicisation of this issue. In thewake of this political battle, several national leaders have doubted the credibility of thevoting machines and the functioning of the Commission. The ECI’s initiative of institutingthe inquiry can be seen as a benchmark example of upholding the democratic principles.However, some leaders have used this issue as a political tool to further their party’s en-deavours. Some have demanded to scrap the use of the voting machines in the upcomingelections. We all vociferously raise our opinions against the policy of banning or removingsomething from the public juncture. The technological advancement in the electoral func-tioning is now facing severe crisis of existence. The scrapping of the EVMs would take In-dia back to the 20th century, providing open opportunities for the tampering of votes. Bythe use of EVMs, the issue of tampering is majorly reduced. In an EVM, five votes can bePage 14

Articles cast in one minute, this exponentially reduces the possibility of rigging as it would bevery time consuming for the booth capturers and the possibility of getting caught would increase simultaneously. An EVM reduces time which is usually channelized in under-taking other administrative functions. The manual work of counting raises the chance of human error, but machines provide nearly accurate results. Much paper is saved, so it can said to be environment-friendly. The technological advancement provides much transparency that will ensure better gover- nance. The records are main- tained so that any wilful conduct of altering it would be caught. These advantages must not be underestimated by our political elite. Any functioning is at the expense of the public exchequer, so going backwards would only lead to a more expen- sive process. If there are loopholes in the functioning of the EVMs, then it must be properly examined and sound deci- sions should be taken after careful deliberations. Till now, no such allegations have been proved so it must be left upon the wisdom of the commission to undertake proper inquiries and make the corrections by laying down adequate guidelines fulfilling the demands andmake it more regularised. However, India is accelerating fast in the age of technologi-cal advancement and we must strive to make it more advanced and efficient and spreadacross the globe our efficiency in managing and facilitating elections, to reap its benefits.In the words of the Chief Election Commissioner of Bhutan:“if we had to learn anything about managing and conducting elections, we had to look no furtherbeyond India which has successfully managed electoral activities over the span of over 60 years.India, being the world’s largest democracy, has had unwavering success in conducting democraticelections. The task of deploying thousands of officers and millions of EVMs and conducting an elec-tion of unquestionable integrity is a major accomplishment for any democratic nation”.---------------------------- Page 15

Libertatem Magazine - Edition 27 [April 2017] Finance BillControversy: Is it a Major Concern? By Sri Vaisakhi MuddanaGovernment of India has taken steps in bringing about changes in the nation. Presentingof the Finance bill is one such mundane act. Every time such a bill is placed before theParliament, two to three days of debate takes place and subsequently people get over theissue altogether.When the finance bill was introduced this year, it stirred up a controversy regarding theamendments included therein. The said bill was passed in the lower house with majority.The amendments which have been brought by the passing of the finance bill change about40 laws and will have a very significant effect on the nation. [The Controversy over theFinance Bill and its many Amendments by Bloomberg L.P]. The Members of Parliamenthave objected to the amendments in the bill on the ground that some of the amendmentsdon’t come within the purview of taxation, which is what a finance bill ideally has tocontain. But the objections raised were not taken into account by the lower house and thelower house has passed the original bill without making any modifications in the bill.Page 16

ArticlesThe objection of the Members of Parliament of RSP was that the list of amendments wasnot placed before them. When the bill was presented on February 1st,2017, only 8 to 10acts were allegedly proposed to be amended; while the Finance Minister Arun Jaitleyhas contended that all the 40 amendments were all incidental to the acts.[ The FinanceBill,2017: the far-reaching consequences of a Lok Sabha majority by Sruthi Radhakrishnan]The major amendments which have led to the controversy are mentioned below:• Aadhar Card has been made mandatory for PAN and Income Tax: All the Residents have to provide the Aadhar number or Aadhar enrolment number. Failure to provide the same would invalidate the Permanent Account Number (PAN). This has become an issue as there is already a pending case before the Supreme Court of India on the issue of making Aadhar Card mandatory for all. [Here’s why there is so much hullabaloo over Arun Jaitley’s Finance Bill 2017 by Economic Times.com]• Tribunals, Appellate Tribunals and other authorities: according to the amendment proposed, certain tribunals’ functions are being taken over by other existing tribunals. Page 17

Libertatem Magazine - Edition 27 [April 2017] The change brought about by the government ham- pers the very own Directive Principles of State policies wherein the independence of the judiciary has been laid down as one of the main principles of democracy. For instance, the Competition Commission Tribunal has been taken over by National Company Law Ap- pellate Tribunal. This raises a major concern as the authorities may not have the required expertise in dealing with the cases of Anti Competition practice as they deal with matters relating to company disputes and governance. Apart from this, it also increases the case burden on the National Company Law Appellate Tribunal where many cases are pending.The National Highway Tribunal has been taken over bythe Airport Appellate Tribunal which does not have anyexpertise in dealing with matters related to the Highways. Likewise, many other tribunalshave been taken over by other existing tribunals which do not have any expertise in thesaid field.According to an amendment, the Central government may make rules with regard to the(i) qualifications (ii) appointments (iii) salaries and allowances (iv) resignation (v) remov-als (vi) term of office (vii) other conditions of service for the members. The term of officehas been limited to 5 years and they are eligible for reappointment. The retirement age hasbeen extended to 70 years for chairpersons, chairman or president. In case of vice presi-dent, vice chairpersons, vice chairman the retirement age is 67 years. [www.prsindia.org/billtrack/the-finance-bill-2017-4681]The above rules shall be applicable to chairpersons, tribunals, appellate tribunals, and anyother specified tribunals. Now the question arises here as to whether or not it will hamperthe independence of the judiciary.In Madras Bar Association v. Union of India [Transfer case No 150 of 2006, Supremecourt of India, September 25th, 2014], the Supreme Court held that the functions of theTribunals are similar to that of the powers and functions of High Courts. Therefore, mat-ters in relation to the appointment, reappointment should be free from the influence of theexecutive.The involvement of the executive in the judiciary will hamper the independent decisiongiven by the judges, and in cases where the government is involved, they will not be ableto deliver a fair judgment and there are chances that the judges’ opinion may be preju-diced. There are also chances that the appointment and reappointment of judges may nottake place in a fair pattern.• Political Contribution by the Companies: According to section 182(3) of the Compa- nies Act 2013, a company can contribute only upto 7.5% of the average of its net profits in the last three financial years. The Companies have to disclose the amount given to the parties in their books of accounts. This ensures transparency in funding the politi- cal parties.Page 18

ArticlesAs per the amendment in the Finance bill 2017, the limit of 7.5% hasbeen removed; the companies need not disclose the amount given tothe political parties. Though the amendment has provided that con-tribution can be made only through cheque, a bank draft, or an elec-tronic means, the information is hidden from the public as only thebanks will know about the transaction which will take place. [Whatis the controversy about Finance Bill 2017? Why everyone is negativeabout it? By Shashank Rajak] Irrespective of this, the companies now have a free will to make as much contribution as possible to the political parties and they can also make sure that the laws which are enacted are for the benefit of the company. If the companies decide to pull out the contribution given by them, then a major part of the amount will be gone. The companies and the political parties’ contributions are for mutual benefit. The amendments in the Finance bill have pretty much takenaway the concept of transparency.The Finance Bill proposes to introduce electoral bonds through which the companies cancontribute anonymously which further allow the companies to hide.• Amendment in Income Tax Act: The amendment in the Finance Bill 2017 proposes that the income tax officials are allowed to do search and seizure without disclosing the reasons for the same. Apart from this the amendment allows the income tax officers to seize any property of the person which is not a part of the raid; While prior to this amendment the officers could seize the property which had been involved in the raid only with sufficient reasons being provided in order to conduct search and seizure. [Why Arun Jaitley must amend regressive Finance Act, 2017 by Minhaz Merchant]This will allow the income tax officials to have the ultimate power of decision which mayin turn be misused by them. Furthermore, there would neither be any checks on themlater since the amendment has allowed the officials to conduct search and seizure withoutdisclosing reasons before any court or tribunal.The above issues have to be discussed and dealt with by both the houses in detail and pro-pose a standing committee to decide the feasibility of passing such laws. Introduction ofthese amendments in the Finance bill has silenced the role of Rajya Sabha in these mattersas the lower house can accept or reject any amendments given by them and even withoutthe approval of the majority in Rajya Sabha, a Finance Bill can be passed if a majority hasbeen obtained in the lower house.The nation in today’s world is moving forward and that is possible only if there is achance of free and fair justice without any prejudiced opinion of the authorities. But theexecutive involvement in the judicial decisions as to the appointment and reappointmentaffects the principles of natural justice, thereby hampering justice. Giving ultimate powersto income tax authorities may be a good road ahead in the future but according to the say-ing “absolute power corrupts absolutely”, there would be chances of officials being unfairand prejudiced in their decision making.-------------------------- Page 19

Libertatem Magazine - Edition 27 [April 2017] the couBy Swarnalee Haldar

the courtroomurtroom

Libertatem Magazine - Edition 27 [April 2017]SC says “Ganga” & “Yamuna” are legal personCASE:Sandeep Singh Bais v. State of MP (Decided on 9.3.2017)FACTSOn December 5, the court had directed the Centre to constitute the board “and make it functional”within “three months”. The States of Uttar Pradesh and Uttarakhand have not cooperated withthe Central Government to constitute a Ganga Management Board, the Court, in exercise of itsparens patriae jurisdiction, in order to preserve and conserve river Ganga and Yamuna,HELDThe Court referred to Ganga River as “Ganga Maa” and deliberated on the nature of God, theUttarakhand High Court has declared Ganga and Yamuna and their tributaries “juristic/legalpersons/living entities having the status of a legal person”. Noting that “there is utmost expedi-ency to give legal status as a living person/legal entity to Rivers Ganga and Yamuna r/w Articles48-A and 51A(g) of the Constitution of India, “The judgment, which was delivered Monday bythe division bench of Justice Rajiv Sharma and Justice Alok Singh, came during the hearing of aPIL related to division of properties between Uttar Pradesh and Uttarakhand. The Court made itclear that, “Rivers Ganga and Yamuna are breathing, living and sustaining the communities frommountains to sea”.Previously, the high court based its argument on the religious value of the rivers and cited severalSupreme Court decisions that stated that “a Hindu idol is a juristic entity capable of holding prop-erty and of being taxed” through those “who are entrusted with the possession and managementof its property”.Pointing out that deterioration of Ganga and Yamuna is a classic case of ‘desperate times, des-perate measures’, the Court observed that the Rivers have a profound significance in the lives ofdevout Hindus, whence they are worshipped and revered as Mother; the one who purifies peopleof their sins. Backing its decision to grant legal personality to Ganga and Yamuna. Rivers Gangesand Yamuna are worshipped by Hindus,” the court said, underlining that “according to Hindubeliefs, a dip in River Ganga can wash away all the sins”. “The Ganga is also called ‘Ganga Maa’,”it added.Deliberating on the nature of God, it observed: “God is omnipotent and omniscient and its pres-ence is felt not by reason of a particular form or image but by reason of the presence of the om-nipotent.” The court also rapped UP and Uttarakhand for their failure to constitute the GangaManagement Board and asked the Chief Secretaries of both states to cooperate with the Centre.It noted that Virendra Sharma, Senior Joint Commissioner, Ministry of Water Resource & GangaRejuvenation, had revealed that despite neither long correspondence, neither UP nor Uttarakhandwere cooperating with the Central Government.Examining that how Hindus have deep faith in the Rivers and how the Rivers are very central tothe material and spiritual existence of half of Indian population and their health and well-being,the Court noted that the constitution of Ganga Management Board has become all the more neces-sary for the purpose of irrigation, rural and urban water supply, hydro power generation, naviga-tion, industries.Page 22

the courtroom No PILs in regards to Service MatterCASEForum of SC and ST legislators and Parliamentarians v. Oil and Natural Gas Corporation, [2017SCC Online Del 7217, decided on 27.02.2017]FACTSA PIL has been sought by Forum of SC and ST legislators and Parliamentarians- a non legal entitybefore the Delhi High Court alleging that E-8 level officers of Oil and Natural Gas Corporation(ONGC) are illegally not being considered for promotion.HELDThe Court held that since Forum of SC and ST legislators and Parliamentarians is an illegal entityit does not have any personal interest, and the personal interest would be of individuals who areemployees of respondent. Accordingly, the writ petition was dismissed for lack of locus standi.Further the Court stated that in case some persons are not being considered for promotion, thenonly such persons have locus standi to approach the Courts with their grievance. It also statedthat someone else can’t approach the Court on their behalf especially, in service matters. For this,the Court relied on Bholanath Mukherjee v. Ramakrishna Mission Vivevkananda Centenary Col-lege, (2011) 5 SCC 464 in which the Supreme Court had held that in service matters a Public Inter-est Litigation petition does not lie.The Court thereby observed, “In case certain employees are illegally not being considered forpromotion, then only such persons have locus standi to approach the Court and not a non-legalperson/entity being the petitioner, inasmuch as, individual persons of a non-legal entity such asthe petitioner can claim that they would not be bound by a judgment in this case and nor can thisCourt issue directions to individual members of the petitioner to file affidavits or compliance affi-davits, etc etc.The writ petition is dismissed as petitioner is found not to have locus standi. Liberty is granted,however, for those persons who would be directly affected to approach this Court by filing anappropriate writ petition or such persons may file appropriate independent proceedings. ------------------------Click the like buttonto like ourFacebook Pagefor regular updates Page 23

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