Libertatem Magazine - Issue 29 [June 2017]

JUNE 2017 LIBERTATEM MAGAZINE www.libertatemmagazine.com EDITION 29Cover StoryKulbhushan JadhavCase: The UnexploredSide Featured Story Supreme Court, SEBI & Sahara India: The Investor Fraud Case

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 29 - June 15, 2017 Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee (Institute of Law, Nirma University) 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 Rubel Bareja (Institute of Law, Nirma University) Rohit Yodha (Institute of Law, Nirma University) Pragalbhi Joshi (National Law University, Odisha) Apurv Taran Jain (National Law University, Odisha) Richa Sankhla (Institute of Management, Nirma University) Mohd. Azeemullah (University of Al-Asmariya, Libya) Anushka Jain (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) VP - Content Development Rachana K (LAMP Fellow) Content Developers Khushbu Shah (Maharastra National Law University) Prateek Mago (Institute of Law, Nirma University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Nitya Jain (Instiitute of Law, Nirma University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Niyati Raval (Institute of Law, Nirma University) Vaisakhi Mudanna (Damodaram Sanjivayya National Law University) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) Vaibhav Sharma (Ragiv Gandhi National University of Law) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Jane Maria (National Law University, Odisha) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2017]

Contents Contents of Edition 29 June 2017 Volume 3 Number 6 Edition 29Cover StoryKulbhushan Jadhav Case: The Unexplored Side (p.12)Featured StorySupreme Court, SEBI & Sahara India: The Investor Fraud Case (p.4)Legal News StoriesSnapshot of Three Years of Modi Government (p.18)Kashmir: More than a Mere Land (p.22)Iran Elections: Background and the Path Ahead (p.24)Justice Karnan’s Case: An Inside Story Of Indian Judiciary (p.26)French Elections: A Chance Towards Rebound Of The Country (p.34)Cattle Trade Ban (p.36)The Deplorable Veracity of Lalu and Scams (p.38)An Analysis of the Mental Healthcare Act, 2017 (p.41)the CourtroomSupreme Court mandates linking Aadhaar Card with PAN Card (p.46)Law commission proposes amendments to provisions relating to bail (p.47)Shashi Tharoor sues Arnab Goswami for defamation (p.48)On Dowry Death and the Violent Days that Precedes it (p.49)Abortion: Not anymore hard or fast (p.50)High Court penalizes student for wrongly taking reservation benefit (p.51)Delhi High Court brings back the Moderation in CBSE Board (p.52)ICJ on the Kulbhushan Jadhav’s Case (p.53)Supreme Court finds Justice Karnan guilty of Contempt (p.54)The Case of Stolen Audio Tapes and an Arnab Goswami (p.55) © All Rights Reserved by Libertatem Media Group [2017] Disclaimer - The opinion expressed in each article is the opinion of its author and does not necessarily reflect the opinion of Libertatem Media Group. Therefore, Libertatem Magazine carries no responsibility for the opinion expressed thereon.

Libertatem Magazine - Edition 29Supreme Court, SEBI& Sahara India - TheInvestor Fraud Case By Khushbu ShahPage 4

Featured Story The SEBI v. Sahara India Case, ongoing case since 2009, is one of the most riveting corpo- rate cases in recent times. What began as an innocuous letter pointing out a discrepancy in the Draft Red Herring Prospectus (hereinafter referred to as DRHP) of Sahara, soon snow- balled into uncovering illegal scheme of public offering made by the company. Then began a torrent of feeble defenses and a perpetual scramble for loop-holes which were finally shut off by the Supreme Court of India by its judgements. Not just one but multiple Courts and Government authorities were engaged in this high-profile saga. However, with the recently held auction Sahara’s flagship project, Aamby Valley, the end does not seem to be anywhere around the corner. History Sahara Parivar on 29th September, 2009 officially filed a DRHP with the Registrar of Companies for its real estate company Saha- ra Prime City Ltd (hereinafter referred to as SPCL). The act of raising money from public through the instrument of shares is known as Initial Public Offering (IPO). It is permitted to be undertaken only by listed companies under the supervision of SEBI. SEBI being a regula- tory authority, scrutinizes details of the public issue, the sound reason, and looks into the financial position before any company is al- lowed to roll out its IPO in share market. This is a standard regulating practice of the Apex market regulating body of India. The main ob- jective is to keep in check the malpractices and safeguard the interest of the investors. The DRHP submitted to SEBI is not a confide-tial agreement and is uploaded on its website. It is readily made available to the public. The rationale is thatSEBI, being the sole capital market regulating body, cannot pursue these documents alone. The prospectus attimes runs into thousands of pages. It is indeed, a herculean task. Additionally, even if it accidentally miss-es out on any fact, detail or figure, it is jeopardizing interest of millions of investors. To preclude from anyuntoward incident, it uploads the prospectus on its official website. Furthermore, it opens window for thepublic to raise concerns about the accounts of financial situation. It aids the regulating body in its function.This procedure has been in practice since 1995-96.The DRHP of Sahara Prime City Ltd was no exception. It was uploaded and was open to the public. It isa 779-page long document containing relevant financial, legal and other information about the company.However, the DRHP of Sahara Prime City Ltd was unique in the sense that on its page 640, in 49th para, wastucked away a simple piece of information which changed the entire fate of the company as well as its parentcompany, Sahara India Parivar.This was first pointed out by Roshan Lal of Indore on 4th January, 2010. In a 1.5 page long letter addressedto the National Housing Bank, Lal brought to light the details on 640th page of DRHP. The same was pointedout in another instance. This time by the Professional Group for Investors Protection, Ahmedabad Page 5

Libertatem Magazine - Edition 29 It stated that Sahara, being an unlisted company, was raising huge public money. It was done by the means of the Optionally Fully Convertible Debentures (hereinafter referred to as the OFCD). These are hybrid debentures, whereby initially the investor is a debtor of the company but, can own a part of the company by becoming the shareholder. However, this can occur only within a stipulated time. He/she has an option to convert their debenture bond into shares of the company. After that they can enjoy all rights a shareholder has. The 640th page of the DRHP stated that there existed a pending dispute between the Income Tax Depart- ment and Sahara for collecting public money by the way of OFCD. The matter is pending before the Commissioner of Income Tax (Appeals), New Delhi. This alerted SEBI against illegal and unauthorized raising of money from the public. SEBI was not only verifying and looking into the depth of the issue but also deciding on the fate of Sahara Prime City Ltd in granting them the au- thority to legally raise money from the public. After a few months, SEBI banned the Company from issuing any share or rais- ing any money from the public. It also demanded the Company to co-operate with the investigation and furnish any detail required. Sahara now attempted to evade answering the SEBI and wade their jurisdiction. In the ensuing tussle, Sahara made a successful attempt by getting a stay order on the SEBI’s order from the Allahabad High Court on 13th December, 2010. Sahara also refused to delve either any information or to co-operate with SEBI. The Company has based its arguments on Section 55A and Section 60 B of the Companies Act, 1956. Section 55A of the Companies Act, 1956 which discusses the special powers states that SEBI is empowered to seek information only from the listed compa- nies. Since the application of Sahara Prime City Ltd to go Public and get listed is still pending, SEBI has no right to seek answers or any information from the Sahara Prime City Ltd. Section 60B states that if the Company files the prospectus with the Registrar of Companies, it can raise money of which SEBI has no jurisdiction. However, this victory was short lived as the judgment was overturned on 4th January, 2010. While over- turning the judgement, the Supreme Court of India reprimanded the Allahabad High Court for its judge- ment which was inundated with biases and extraneous consideration. The Supreme Court of India laid down a landmark and commendable precedent. The issue concerning the jurisdiction of SEBI over a non-listed company was addressed in the light of Sec- tion 55A (c) of Companies Act. The Court stated that this section gave special powers to SEBI. It empow- ers SEBI to investigate and adjudicate matters on securities wherein investor’s interest is at stake. Empha- sis was laid down on legislative intent behind the section and thus, SEBI had jurisdiction over matter of listed public companies to get their securities listed. However, this alone would not empower SEBI to get the jurisdiction in Sahara case, as it was imperative for exchange, issue or transfer of securities. The Supreme Court stated that OFCDs issued by the compa- ny, claimed to be privately placed, were securities. Section 67(3) of the Companies Act speaks briefly that when any security is offered to and subscribed by more than 50 persons, it will be deemed to be a Pub- lic Offer. The argument of Sahara that the OFCDs were privately placed and only people related to the Company were investors, could not sustain. The company was held in violation of the Section 67(3) of the Companies Act as it transgressed the statutory limit ascertained under the Section. This violation attract- ed civil as well as criminal liability. Section 73 mandates that all public offering shall occur only through the channel of a recognized Stock Exchange. Since, the OFCDs issued by Sahara were not offered through the prescribed legal channel, they were deemed illegal. Supreme Court of India widened the ambit interpreting the meaning of “securities”. It interpreters the word so as to include hybrid interments like OFCD along with the conventional instruments. Thus, SEBIPage 6

Featured StoryThis judgement was landmark in the regard that it cleared the air regarding the conflicting jurisdiction ofCorporate of Ministry and SEBI. It also filled the grey area concerning jurisdiction of the securities of Unlist-ed Company. Both, Ministry of Corporate Affairs and SEBI had concurrent jurisdiction over matters involv-ing public interest.Sahara landed in deep trouble as SEBI asked her to refund all money collected through the OFCD, alongwith 15% interest. This decision of SEBI was reiterated by the Supreme Court of India on 31st August, 2012. Not only had SICCL raised money through OFCD, but also Sahara Housing Investment Corp. Ltd (hereinafter referred to as SHICL) pro- liferated the number of investors which came close to 30 Million and the total fund was around Rs. 24,000 Crores. Both the companies were ordered to return the money collected through the OFCDs. The Company was ordered to refund Rs. 17,500 Crores with 15% interest within the period of 90 days. The Company claimed that it had returned fund to 90% of its investors. SEBI was asked to look into credibility of the claim and also ensure that the rest of the investors received their money back. The Company was to provide details with supporting documents to SEBI about the subscribers and investors. The proclaimed refunds were made to the investors, within ten days i.e by September 10, 2012. No criminal sanctions were issued against the promoters, directors or the Company. The deadline fixed for refunding the money collected from the public by two Sahara compa- nies under the OFCD scheme was November 30, 2012. The Court stated if SEBI did not find the supporting documentsclaiming the return to the investors, it would be presumed that the money was not returned. If the investorswere not found to be genuine, the money owed to the Companies would be transferred to the ConsolidatedFund of India. The Court had appointed retired judge Justice BN Agrawal to oversee the entire matter ofreturning the funds. Also, the court empowered SEBI to take suitable actions to recover money from Saharain case it defaulted.Sahara did comply with the order of the Hon’ble Supreme Court. September 10, 2012, which was the last day for sending documents and provid- ing information to SEBI, was quite phenomenal, eventful and moreover a dramatic day. The documents from Sahara had reached SEBI’s headquarters located in Mumbai on this day. They arrived, loaded in 127 Trucks, piled up in 31,000 cartons carrying information of all 30 mil- lion subscribers of the OFCD. The regulating body was inundated with 120 tonnes of documents. Irrespective of the motive, intention and agenda behind the act, Sahara ended up paying the entire expense of storing, processing and digitizing the data. This was a Court order. SEBI, in order to process, store and Page 7

Libertatem Magazine - Edition 29 scrutinize these documents had to engage the services of Stock Holding Corporation of India Ltd (SHCIL) for their warehouse facility. It had incurred an expense of about Rs. 41 Crores. It was only after the verification began, repetition of names, incomplete address and other discrepancies in the information of the subscribers came to light. As reported by NDVT in 2013, around 45-50 people, with 80 scanning machines were employed to expeditiously study and analyse the documents. The ex- pense of their salary too was borne by Sahara. In order to clarify the claims of Sahara of already returning the money to investors, SEBI wrote to 20,000 of the subscribers. In the letter, they were asked to apply for refund. Astonishingly, only 68 of them replied. The documents contained around 1,433 Anirudh Singhs, 5,984 Kalwatis and 13,000 Atal Bihari Vajpayees. However, the main concern of the Supreme Court was that, Sahara was approaching various forums for relief and appealing against its orders. A bench comprising by Justices KS Radhakrishnan and JS Khehar reprimanded Sahara for approaching Allahabad High Court against the order of the Apex Court in April, 2013. The order demanded attaching property of two Companies in case they failed to deposit Rs. 24,000 crores with SEBI. Also, Sahara had approached SEBI and Securities Appellate Tribunal (SAT), requesting for extension for deadline. “You are manipulating court which is going on,” said the bench. The company was held in contempt of SEBI’s order and the information provided on 10th September, 2012 was found vague. Finally, the bench made it very clear that is wasn’t the job of SEBI to search for documents, it was the ob- ligation of Sahara to provide the details of the subscribers. If the Sahara failed to fulfil the obligation, the money was to be remitted to the central government. SEBI was attaching the personal property of Sahara’s Director, Subrata Roy, as he was a party to the case. Giving paramount importance to the money of the investors, the bench stated that it was not concerned with the parties. This is a clear instance of piercing the Corporate veil, though not explicitly stated. Civil Appeal No. 8643 of 2012 was filed in the Supreme Court for the contempt. It was alleged by SEBI that Sahara did not comply with the Court orders demanding refund of the public fund. When the matter was heard on 5th December, 2012, Court modified its earlier order. Taking cognizance of the enormity of the amount, Court ordered the two companies to repay the amount in 3 instalments. The first instalment of Rs. 5,120 crores was to be immediately deposited through demand drafts. Further direction was given to deposit the balance amount of Rs. 17,400 crores together with interest @ 15% per annum with SEBI in two instalments. The first instalment amount, of Rs. 10,000 crores, was to be deposited with SEBI within the first week of January, 2013 and balance amount along with interest by first week of February, 2013. Sahara defaulted to deposit the last two instalments of January and February, 2014. As a strict action against Sahara, SEBI first froze all accounts and seized the properties of the SIREC and SPCL on 6th February, 2013 and filed for contempt proceedings in the Supreme Court. The regulating body ordered freezing of the bank accounts, Demat accounts of all moveable and immovable properties in the name of Subrata Roy and three other directors, namely Vandana Bhargava, Ravi Shanker Dubey and Ashok Roy Choudhary. The ambitious Aambey Valley project of Sahara Group was one among the various seized properties. The contempt hearing was heard on 4th March, 2014, wherein Subrata Roy and two other directors, name- ly Ravi Shanker Dubey and Ashok Roy Choudhary were sent to Tihar jail for the contempt of the court. Some considerations were made for the director woman, Vandana Bhargava who wasn’t sent to jail. On 26th March, 2014, Court granted bail to the contemners with an extraordinary bail amount of Rs. 10,000 Crores, Rs.5,000 Crores in bank guarantee and Rs.5,000 Crores in cash. The point to consider here is that a world-renowned businessman and director of a multi-million dollar business conglomerate was sent to the largest jail in South Asia for a crime of which punishment, under the Section 12 in the Contempt of Courts Act, 1971 is simple imprisonment for up to six months, or a fine of two thousand rupees, or both. Is there a need for such harness?Page 8

Featured Story Page 9

Libertatem Magazine - Edition 29 One needs to look at the case a whole from the beginning and take into consideration the depth of the matter. The decision and the required sternness of the Court has been elaborately and remarkably jus- tified by the Justice Sikri, in his judgement of 19th June, 2015. In this judgement, he granted bail to the contemners, on the condition that owed amount of Rs. 36,000 Crores to be repaid in 9 instalments within a period of 18 months. Rs. 3,000 Crores were payable, every two months. And the last instalment shall be of the remaining amount. It states that the Court was very well aware and concerned that the condemners were deprived of their civil liberties. However, this extreme action was need of the hour in the light of the stubborn attitude, relentless defiance of the Court orders and the huge amount of Rs. 36,000 Crores (including interest) owed to the poorest of poor Indians. From the beginning, Sahara has claimed to have attracted investment from general public who majorly include cobblers, labourers, artisans, peasants etc. Safeguarding the interest of investors has been the focal point of the case since its very inception. Legal realism was at the core of the decision. While acknowledg- ing the case has been beset with complexity, he cites the jurisprudential theory propounded by Ronald Dworkin. Dworkin is a 21st century American philosopher and jurist.Page 10

Featured StoryIn his various works, he urges use of public standards whilederiving right legal answers. According to him, law cannotrest on an official consensus. Reaching the right decision incomplex cases is never easy. In the case at hand, the over-whelming public interest prevailed over the rights of thecontemners. Also, the unauthorised scheme was jeopardis-ing hard earned money of the blue-collar workers of India.Furthermore, this step was required to command compli-ance of the Sahara Group.“Making the law work” was at the core of the approach ad-opted by the Supreme Court. For the most fundamentalobjective of any court is to ensure that the law is obeyed andimplied with. Sahara, at time and again flouted the direc-tions of Court. Therefore, the extreme step of the Court wasrequired and it serviced as a wake-up call for the Directorsof Sahara. It reiterated the serious concerns of the Courtabout the public money and no company or any personwould get away without facing ramification. Even in 2017,amount owed to the investors was in arrears. A bench ofDipak Misra, Ranjan Gogoi and Dr. A.K. Sikri, JJ orderedSahara to furnish two post-dated cheques of Rs.1500 croresdated, payable on 15th June 2017 and the second one wasof Rs.552.21 crores payable on 15th July 2017. The chequesif bounced, would send Subrata Roy back in custody. Theapex court also warned Roy that he might be sent to jailagain if the amount was not paid. He has been grantedparole till 19th June, 2017. The Supreme Court on 17th April,2017 auctioned the ambitious Aambey Valley.ConclusionThus, this case has been a great example in establishing thefact that safeguarding the interest and the money of theinvestors is the primary concern of Supreme Court in corpo-rate scams and share-market scams. It would not condoneany reckless or unauthorized use of public money by theCapitalists. Thus, in the wake of the waiting Kingfisher Scamtrail, this acts as a precedent wherein the Supreme Courtdoes not shy away from becoming the defender of publicinterest and piercing the corporate veil. Sahara Group Owned International Hotels - Grosvenor HouseHotel, London(On Left) and The Plaza Hotel, New York (On Right) Page 11

Libertatem Magazine - Edition 29 Kulbhushan Jadhav Case: The Unexplored Side Prateek MagoPage 12

Cover StoryMay 2017 has been the most celebrated month out of the initial months of the year by the Indian populace.The reason for the celebration is in itself a huge moment of pride for every Indian citizen, as India suc-cessfully won the case against Pakistan before the legal organ of the United Nations, i.e., The InternationalCourt of Justice. However, there were a lot more areas which were probably left unexplored with respect tothe technicalities of International Law. To put it in simpler words, Pakistan had a very strong case againstIndia and would have easily won had it not been for the incompetence and the incapability of the Pakistanicounsels and agents to convince the bench. The present article is just a reflection of the legal point of viewfrom both the sides and what the approach should have been towards the whole situation.Brief FactsThe case revolves around an Indian citizen, named Kulbhushan Jadhav, who was captured by the PakistaniCounter-Terrorism forces on the Iranian Border for the charges of sabotage and terrorism. It was claimedby the Pakistani army that Mr. Jadhav happens to be an agent, working for the Intelligence Wing of the Page 13

Libertatem Magazine - Edition 29 Republic of India, i.e., The Research and Analysis Wing (R.A.W.). He was captured by the Pakistani forces from a place called Saravan, which is in close proximity to the Pakistan-Iran Border. After a couple of days of his arrest, the Indian High Commissioner to Pakistan was summoned by the Pakistani Authorities with respect to Jadhav’s illegal entry into the Pakistani territory and his active involvement in subversive and terrorism activities in Karachi and Balochistan, which was followed by a press release related to the matter. India, in response to the Pakistani statements, clearly denied Jadhav’s connection with the Indian Govern- ment on the ground that he retired from the Navy in 2002. However, the most shocking incident was the denial of consular access to India, which further became the ground for filing of the petition by India.After a few days, the Pakistani authorities released a video in which Jadhav was seen confessing his crimeand admitting that he is an operative of the R.A.W. Pakistan refused to extradite Jadhav to India underany circumstances, to which India took a serious note stating that there was an evident deviation from theinternational practice from the side of Pakistan with respect to the treatment given to foreign nationals inits custody.On April 10, 2017, the Pakistani Military Court found Jadhav guilty of sabotage and espionage and accord-ingly announced that he would be hanged. The decision was followed by India slamming the decision andsending a demarche to the Pakistani High Commissioner to India, Mr. Abdul Basit, stating that the Paki-stani Authorities had kidnapped Jadhav and the entire trial against him is ridiculous as there is no evidenceagainst him. This move resulted in tensions between the two South Asian countries. India subsequentlyapproached the International Court of Justice seeking provisional measures to be taken in this case. ICJ’s Intervention The president of the ICJ, His Excellency Ronny Abraham, announced that the Court, under the power given to it by Article 74(4) of the ICJ Rules, had asked Pakistan not to take any sort of action with respect to Jadhav’s execution. Article 74 of the ICJ Rules of Court, 1978 states that:- 1. A request for the indication of provisional measures shall have priority over all other cases. 2. The Court, if it is not sitting when the request is made, shall Jadhav Trial ‘Farcical’ Says India, Indian Case ‘Theatre’ Says Pak be convened forthwith for the purpose of proceeding to a deci- sion on the request as a matter of urgency. 3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings. 4. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request India’s delegation waits for judges to enter the World Court in The Hague for provisional measures to have its appropriate effects.Page 14

Cover StoryAs per the other provisions of thisArticle, the Court realised that thecase pertains to an urgent situationand hence, decided to conduct thepublic hearing on May 15, 2017. Atthe public hearing which took placein the Peace Palace, The Hague, Indiarequested the following along with itsapplication for filing of the case:-1. “a relief by way of immediate sus- pension of the sentence of death awarded to the accused.2. a relief by way of restitution in integrum by declaring that the sentence of the military court ar- rived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36, paragraph 1 (b), and in defiance of elementary human rights of an At India’s Urging, ICJ Requests Pakistan to Hold Back Execution of Kulbhushan Jadhav accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention, and3. Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Paki- stan.4. if Pakistan is unable to annul the decision, then this Court to declare the decision illegal being viola- tive of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”Article 36(1) of the Convention states:-1. “With a view to facilitating the exercise of consular functions relating to nationals of the sending State:• Consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;• if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communi- cation addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;• Consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking ac- tion on behalf of a national who is in prison, custody or detention if he expressly opposes such action.”Now, as per the provisions laid down in this Article, it is mandatory for the host state to grant the consularofficials the right to visit and talk to any person of the sending state who is in custody, prison or detention.India claims that this provision has been violated by the Pakistani authorities as the Indian officials weredenied consular access to visit Kulbhushan Jadhav while he was in custody.As regards the question as to whether the International Court of Justice has jurisdiction to adjudicate uponthe case, India very smartly chose to approach the court under the ambit of Art. 36(1) of the Rome Statuteof the International Court of Justice instead of seeking relief under Art. 36(2), because of the strong reserva-tions that India has pertaining to taking disputes to a third party. Article 36(1) of the Statute states:-“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially pro-vided for in the Charter of the United Nations or in treaties and conventions in force.” Page 15

Libertatem Magazine - Edition 29 Making an approach under this provision means that India invoked Article 1 of the Optional Protocol to the Vienna Convention on Consular Relations, to which both India and Pakistan are State Parties. Article 1 of the Optional Protocol states that:- “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdic- tion of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.” This clearly forms the legal basis of Court’s jurisdiction in the matter, however, this does not take away Pakistan’s chance to raise objections during the preliminary phase with respect to the court’s jurisdiction, something which was absent in the actual scenario. The proceedings that took place initially were conduct- ed to take provisional measures so that the immediate interests of both the parties were fulfilled. However, after that was over, and prior to the commencement of the merits phase of the case, Pakistan did have a very strong chance of contesting against the substantive jurisdiction of the court during the preliminary objection phase. But the fact that there is a presence of direct jurisdiction clause in the Optional Protocol, a low threshold and an urgency, the court accepted India’s contention that it has a substantive jurisdiction over the matter. Validity of the Agreement on Consular Access The best part of the entire case was not the jurisdiction phase, but the rise of a complication during the mer- it phase. India’s entire case was based on the argument of the violation of the Vienna Convention by Paki- stan, however, the Pakistani agents strongly relied on the Agreement on Consular Access, signed between the two countries in May, 2008, during the Composite Dialogue which took place in Islamabad, Pakistan. This bilateral agreement was signed in furtherance of the aim of providing humane treatment to nationals of either country. The agreement has certain provisions which allow both the nations to notify each other in case their citizen is arrested in the other country and allowing consular access for the same. However, clause (vi) of the Agreement states that:- “In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits.” The presence of this particular clause acts as an exception to the Vienna Convention on Consular Relations, 1963, and eventually gives discre- tion to both the states to deny consular access if the matter pertains to its security. This is exactly what Pakistan did. It denied India consular access because according to them, Kulbhushan Jadhav was a R.A.W. agent who illegally entered into Pakistani territory to carry out subversive activities. However, India tried to do away from this Bilateral Agreement on the ground that the said agreement is not registered with the United Nations, and hence, cannot be relied upon. And as per Article 102(2) of the Charter of the United Nations, no party to any such treaty or international agree- ment which has not been registered in accordance with the provisions of paragraph 1 of Article 102 may invoke that treaty or agreement before any organ of the United Nations. But this does not render the Bilateral Agreement invalid at all. Both the parties, especially Pakistan, still had a full chance of getting it registered with the United Nations so that the validity isn’t questioned. The Inter- national Court of Justice, in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain, did not object to the registration application which was filed by the Qatari authorities after the commence- ment of the case. It even stated that non-registration or late registration, on the other hand, does not have any consequence on the actual validity of the agreement, which remains no less binding upon the parties. So even though the ICJ judgements are not binding upon the ICJ itself, they defi- nitely hold a lot of persuasive relevance.Page 16

Cover StoryTo interpret it in a more feasible manner, it is important for us to consider the Vienna Convention on theLaw of Treaties, which is an integral document when it comes to the interpretation of the treaties. Firstof all, Pakistan was well within its rights to decide against Kulbhushan Jadhav on the basis of merits anddenying consular access to the Indian officials as per clause (vi) of the Bilateral Agreement. By applyingArticle 30(3) and 30(4) of the VCLT in the present situation, it may be concluded that there was no expressobligation upon Pakistan to allow the consular access in the first place. Secondly, the application of Article26 of the VCLT becomes necessary at another important juncture. Article 26 states:-“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”The International Court of Justice, in the Gabcikovo-Nagymaros case and several other cases, has heldthat the intention of the state parties at the time of the conclusion of the treaty must prevail every time.Hence, the fact that there was a non-registration of the Bilateral Agreement becomes irrelevant as both thecountries have been relying upon this document since many years, and the intention was also bonafide.Additionally, a closer scrutiny of the workings of Article 102 of the Charter of the United Nations is of greatsignificance. The word that has been used is ‘may’ instead of ‘shall’, thus not making it obligatory or man-datory upon the party invoking the agreement in the first place.Unfortunately, even though there were a lot of arguments from the Pakistani side which would have led toa strong case against India, and which would also have ended the case at the jurisdiction phase itself, noneof these were actually argued and contended by the Pakistani counsels and agents before the Hon’ble court.This shows the lack of commitment and determination from the side of Pakistan with respect the entirecase.In my view, India never would have won it had there been a proper interpretation of international law andother relevant things, but as they say, everything that happens is written in our destinies and everythinghappens for good. May be, the good has already happened, because at the end of the day, a man’s life issaved, and who knows, may be God has something for us lying in the future as well! Page 17

Libertatem Magazine - Edition 29 Snapshot of Three Years of Modi Government Vaibhav Sharma The historic electoral victory of NDA Government or MODI (The victory in the 2014 elections was un- doubtedly ascribed to Narendra Modi alone as a decisive mandate to uproot corruption and make India a development-oriented nation) in 2014 elections was a clear sign of hopes people reposed in him and by extension in the political party he represents. The mandate was unequivocal and unprecedented with a thumping majority. The last three years have seen major breakthroughs and transformations that seem to be game-changer for both the Indian economy as well as aspirations of 1.3 billion Indians. When the Narendra Modi government assumed office, the political environment was rancid with massive UPA corruption scandals and allegations of massive black money plaguing the system. Thus, an objective litmus test of the achievements and limitations of the present government remains apt to evaluate the per- formance of the Modi government. The article will peruse the highlights of major sectors in order to bring out the performance. Agriculture Sector Agriculture is the backbone of the Indian economy which still provides employment to about 60% of the population, needless to mention about how quintessential the growth of this sector is for the overall devel- opment of the nation. The Modi government has given due emphasis for the betterment of this sector. The crop insurance scheme namely Pradhan Mantri Fasal Bima Yojana launched in 2016 has helped achieve record production in the current Kharif season. It has relieved lakhs of small and marginal farmers from the risk of crop failure Focus has also been made for Direct Benefit Transfer (DBT) of the subsidies in order to reduce the leakages and to weed out false beneficiaries. It has led to savings to the tune of thousands of crore rupees for the offi- cial exchequer besides ensuring targeted delivery of the benefits.Page 18

News StoryAnother initiative ‘Electronic National Agricultural Market’ (eNAM) has led to institutionalisation ofagricultural market in an electronic format to help the farmers decide the best price for their crops and thescientific practices to realise the dream of ‘One nation, one market’.Rural sectorThe agricultural sector in India is mainly limited to rural India. The construction of the road under thePradhan Mantri Gramin Sadak Yojana is an attempt to connect rural and urban India. It has been going onwar footing. The pace of the daily road development for the highways to connect the far flung rural areaswith the cities has been an impressive 133 km/day from the abysmal 74 km/day under the UPA regime.The Pradhan Mantri Ujwala Yojana (PMUY) has been another success story for the rural India with morethan 2 crore BPL households already been provided LPG cylinder gas connections for cooking. It will alsoresult in improving the quality of life for millions of women working in toxic smoke-filled fuelwood kitch-ens. The scheme is said to have played a pivotal role in electoral victory in Uttar Pradesh for the BJP. Thegovernment has also increased the financial penetration for the rural areas through Pradhan Mnatri JanDhan Yojana (PMJDY) which saw an unprecedented 28.76 crore beneficiaries attaining pivotal financialinclusion to the banking sector.Urban Infrastructure, Social SectorThe main mission of urban development has been the ‘Smart City Mission’ to develop 100 cities across thenation. It will be implemented in three phases with government providing essential funds for establishingworld class infrastructure for the cities. It will help in solving the problems of waste management, transitsystem and urban governance. The cynosure of the present government has been the ‘Swatch Bharat Mis-sion’ which aims to mark a sea change in the garbage disposal habits of the people. It has been a resound-ing success with celebrities, sportsmen, cabinet ministers along with the common people ushering in newbehavioural changes for a cleaner nation. It has also culminated in construction of toilets in rural and urbanareas for eradicating the menace of open defecation. The mission has borne results with three states namelyHimachal Pradesh, Sikkim and Kerala already being declared as Open Defecation Free (ODF). The trust hasalso been given to the Beti Bachao and Beti Padhao Yojana for highlighting the importance of the girl childin the society.The government has also tried to rectify the problems of the medical sector by enacting the Mental HealthBill, 2016 for calling upon the various stakeholders to accept their responsibility in improving the sector.The government has also launched the Indradanush Scheme to ensure Universal Immunisation Programme(UIP) for the communicable diseases for the children till the age of 14 years. The Indian Medical Systems(IMS) under the AYUSH Ministry is also being promoted to boost employment and to provide medicalaccess to the common folks. The international influence of the PM Narendra Modi has been instrumental inpromoting Yoga at the global stage. The world has come to recognise this cultural heritage of India with theUnited Nations declaring 21st June as the International Yoga Day. The government is also working on skilldevelopment for the youth to increase employment. It has started various schemes to provide skill certifica-tions and vocational training to the people to increase their employability.Financial SectorTo increase the efficiency of this sector, among other initiatives; one of the most important is making IndiaDigital. The Modi government has been successful in promoting the ‘Digital India’ in order to boost thedigital services culture in the nation. It has tried to link the public services with the Adhaar Card of thepeople to develop national database for improving the quality of the facilities. The thrust to the DigitalIndia is expected to aid the national (?) to about 1.5% of the GDP annually. It will also curb the use of blackmoney and the fake currency to putrefy the system internally. The usage of the Unified Payment Interface(UPI) and the new BHIM application for the digital transactions is being pursued.Earlier the growth of digitalization was slow but with the historic decision of 8th November, 2016 to de-monetise the currency notes of denominations Rs.500 and Rs.1000 it led to the exponential usage of digitalmeans. The decision has proved to be the surgical strike against the hoarders of black money by makingtheir unscrupulous cash worthless. The people of the nation supported the government wholeheartedly bysuffering in long hours of queues and disruptions in an effort to purge black money. Demonetisation has Page 19

Libertatem Magazine - Edition 29 preceded with the Income Declaration Scheme of the government to declare the unaccounted cash by pay- ing penalty for the same. The demonetisation has proved to be most pivotal policy decision in decades with the public and banking officials supporting the government in spite of poor management and planning on part of the government. However, the fight against black money has also not been able to reach a conclu- sive destination with no attempt being made to bring back the cash stashed abroad in the foreign banks and also the majority cash being deposited is confusing. There were also numerous cases of indulgence of officers and corruption. The government is to be credited with the passing of the Goods and Service Tax (GST) law which is being seen as the greatest tax reform for the nation. It will replace the present complex and flawed system of indi- rect taxation with a streamlined and transparent regime. It will also eliminate the regional disparities in the tax rates and will boost the investment by increasing accountability in the system. The novel regime will commence from 1st July, 2017 and is set to revolutionise the Indian taxation system. The Jan Dhan, Adhaar and Mobile (JAM) trinity is expected to divert the nation to a path of economic prosperity in the coming years. Problem Areas The present government has undoubtedly achieved tremen- dous feats in the three years of working, but the same has also been dotted with many problems which need to be corrected in the coming days. The government has not been able to de- cipher the mystery to the Maoist problem with the recent days witnessing an escalation in the hostilities by the insurgents. The state of Jammu and Kashmir has also been reporting unrest for want of a permanent political solution. The govern- ment has woefully failed to rectify the relation with China. The dragon nation has been consistently blocking India’s member- ship to the Nuclear Suppliers Group (NSG) and India’s UN resolution on terrorism. The upcoming Maritime Silk Road and One Belt, One Road (OBOR) initiative of China is designed to circumvent West Asia to emerge as the global superpower is bound to disturb the government in the near future.Page 20

News StoryDefence and Space ExplorationThe present government has encouraged the Indian Space Research Organisation (ISRO) in its endeavoursto herald space research. ISRO has enabled our nation with the distinction of the only nation in the worldto send the unmanned spacecraft to both Mars and Moon in the very first attempts. It has also unveiledthe new geospatial technology NAVIK to be an indigenous geo-positing system to replace the US basedGPS at cheaper rates. The Defence Research and Development Organisation (DRDO) has successfully builtTejas as the indigenous light combat aircraft. The Agni V missile has boosted India’s inter-continental strikeability in league with our assured second strike capability in the event of a nuclear escalation. The resolutesurgical strike across the Pakistan border to retaliate the cross border infiltration has boosted the morale ofthe defence forces. The conclusion of the Japanese Nuclear Deal as well as the membership of the MissileTechnology Control Regime (MTCR) has established India’s paramountcy in international diplomacy.The Road Ahead…The three years of the working of the Modi dispensation is dotted with many bright spots and has pro-pelled the nation to a higher growth trajectory. The use of digital infrastructure, Smart City Mission,Swatch Bharat, Make in India, etc. have heralded a sea change in India’s perception and economic standingin the world. The government has also won the critical public mandate on demonetisation and surgicalstrikes to endorse them as national achievements. But the government has not been able to cure the prob-lem of black money, China’s belligerent attitude, terrorist attacks from Pakistan and corruption in electoralfunding which is bound to perturb the Modi government. The massive problems of poverty, unemploy-ment, poor health infrastructure and food security need to be the focal points. It will be in the best interestof the nation that the Modi government is able to build upon its terrific track record in the next two yearsand propelled the nation to greater echelons of progress and economic development to realise the motto of“Sabka Saath, Sabka Vikaas”. *************** Page 21

Libertatem Magazine - Edition 29Kashmir:More than a Mere Land Shreyan Acharya The recent rhetoric of “innovative ways” has created a nationwide debate. The two factions in the coun- try have either supported the statement or condemned it. The Army Chief General Bipin Rawat stirred a controversy when he felicitated the Major Leetul Gogoi before the Code of Inquiry concluded its investiga- tion. The Army General came out in support of Major Gogoi, for using Mr. Dar, a Kashmiri, to be used as a human shield. The Army Chief made it clear that to ensure the safety of the Jawans from the local protests and militant ambush, such innovative measures are needed to avoid casualties and counter insurgency. But, the question arises as to whether such innovative measures are within the Code of Conduct of the most respectable army in the world. Is the Indian Army empowered to encroach upon the human dignity and exceed in its authority? Can the Army encroach upon human dignity? The question may not go well with the nationalist sections of the country, but to save myself from the hor- rors of the branding tradition recently gaining momentum in the country, I would like to say that I stand by the Army. However, what we need to understand is that we are an organized institution. We live by a Code of Conduct where safeguarding the lives is not the only duty, our responsibility is to equally protect the dignity and rights of every citizen. So, the main question is whether creating a sense of animosity is taking us in the direction of resolving the Kashmir issue. Daily, we see incidents where we form an opinion on whether it is actually resolved or if it is deteriorating further. When we witnessed the clash between the armed forces and civilians over the killing of Burhan Wani, we formed an opinion that these are the peo- ple who stand by the terrorists, but on the other hand, when we also see that thousands of Kashmiri youth enrolling in the armed forces defying the lines of the separatists then we form an opinion that these are the people who believe in “One India”. Therefore, my statement can be concluded in a manner that our opin- ions are based on the incidents we see in the Valley.Page 22

News StoryDelving deeper into the “Valley”Forming opinions upon these incidents does not determine our stand on the Kashmirissue. We are often mistaken when we refer to establish Kashmiriyat. What we need tounderstand here is that our approach is restricted in maintaining the territorial integrity,and this feeling of prestige does not allow us to have a broader approach towards resolv-ing the real issues. Let us turn to an example.Recently, Kashmiri students were threatened in other parts of the country due to the risingunrest in the valley. So, does that mean that our sole attention is to uphold the pride that“Kashmir is an integral part of India”. Or, should it not be that Kashmiris are a part ofIndia? I equally understand the strategic importance of the Valley, but we also need tounderstand that more than the landscape, the people out there are of vital importance.My contentions may seem to be against the Indian norm, or may be defeating the feelingof nationalism, but being an Indian, I think it is my responsibility to unravel the truth andour psychological mindset. I often hear in many discussions and debates that the peopleprotesting in the streets of Kashmir must be denied there rights and strict deterrent mea-sures shall be taken against them. Here, my reference is not to the terror outfits, but to thestudents and the youth who are turning hostile. We say that India has the vast potentialto grow due to its youth population, but does this reference overshadow the youth of thevalley? We believe in an inclusive society but, is that inclusiveness restricted to the peoplefalling in line? Or should it not be open to those who are angered by their grievances? Isit not the responsibility of the Indian State to redress the grievances? My purpose of thesereferences is to provide a measure where we can try direct engagement with the youth ofthe valley.The problem with our approach Our approach till now has been pertaining to appeasing the separatists and other leaders, but we need to prioritize on whom we need to engage. I believe the Government must take adequate measures on holding discussions in schools and colleges coordinated by their representatives, which would help them to understand the ground level grievances, and establish the reasons on what is turning them hostile against the State. Shutting down colleges and schools or denying access to social media or other things are deterrent mea-sures with short-lived benefits, but to achieve far-reaching results we need to establish direct engagementwith the youth of the valley. Encouraging and holding debates and discussions in the schools and collegesof the Valley may develop a sense of oneness amongst the youth, and they may feel secure in putting for-ward their opinions which they were denied earlier. This would also set an example of the tolerance levelin the country, and it would be a more result-oriented approach to resolve the issue.My references may raise some questions about my one-sided outlook of the issue. I can be questioned onfailing to mention that during the year 1948, it was the Indian Army that safeguarded the valley from themercenaries or on my failing to mention the grievances of the Kashmiri Pandits during the advent of themilitancy in the Valley, or any other such issue. So, to all these questions I would like to say that I con-demn the ousting of the Pandits, but does that give us the right to stereotype the entire population of theValley. I stand in support of rehabilitating the Pandits back in Kashmir, but we should also give have a fairapproach in looking at both the communities from the same prism. Our preferential approach whether infavour of the Kashmiri Pandits or Kashmiri Muslims has marred us from taking constructive steps. Suc-cessive Prime Ministers and political parties have vowed to resolve the Kashmir issue, but I feel saddenedto see that the resolution is restricted to the territory. Our commitment should be in resolving the issuesof the citizens. Such an approach would also go against the Pakistani policy of constant interference in theValley. But, for this all we need to believe in the feeling of togetherness which is only possible when welend the first hand by overcoming the self-styled prestige. Unless we develop this feeling of oneness and in-still a sense of security and access to equal rights, the unrest in the Valley would go on for another 50 yearsor more. And, as per my understanding of patriotism and nationalism, I believe in not ruling the peoplebut serving the people.************ Page 23

Libertatem Magazine - Edition 29Iran Elections: Backgroundand the Path Ahead Shreyan AcharyaPage 24

News Story Election around the world is a prac- tice undertaken to ensure that the representatives of the people are cho- sen by the people and for the people. Countries have regulated this prac- tice as per their norms and consti- tutional framework. Some countries practice open-ended elections where candidates from any field of life have the right to contest in accordance with the electoral norms, but there are countries where elections are closed-door. Closed-door elections are at times questioned to be not free and fair and condemned and as a mere practice with low voter turnout and rigged elections. With special reference to the Islamic Republic of Iran, this piece is an attempt to exam- ine the transformation in the Iranian politics. Background The political change in Iran emerged after the Iranian Revolution of 1980s. The revolution marked the emer- gence of the strict Islamic dominance under clerical family of Kheimini. Iran after the revolution came under dictatorial regime, where political atmosphere completely became rigid. The loyalty towards the cleric deter- mined the political position with the dissenters and the political oppo- sition being completely wiped out. Unfortunately, the new trend after the 1980s destroyed the democratic principles and isolated the country from the global mainstream politics. Iran has been a vociferous opponent of the western style democracy es- pecially the policy of USA of inter- ference in internal matters. The early years of 2000s witnessed the boiling differences between these two coun- tries. The then US President George W. Bush termed Iran as the “Axis ofall Evils”. Such rhetoric further deteriorated the relations.The new era saw the dawn of global interdependence, but such a trend was miles away when it came toIran. The country lived in isolation gaining severe condemnation and criticism of several human rightsviolations and becoming a global threat with their nuclear program.Emergence of Hassan RouhaniThe recent elections held in Iran marked the victory of Hassan Rouhani for the second tenure as the Presi-dent of the country. But, before discussing about the political battle in Iran and its importance around the Page 25

Libertatem Magazine - Edition 29 world, we must first try to know the person who is the pioneer of championing a liberal culture in a coun- try under an orthodox and strict regime. Hassan Rouhani played a crucial role during the days of the rev- olution. He is often accused of causing the assassination of several opponents. He became a loyalist to the clerical family, and performed various roles in the armed forces and diplomacy. In the year 2002, Rouhani became the Chief Nuclear Negotiator of Iran and managed to reach a deal with the European countries to suspend uranium enrichment. But, the hardliner President Mahmoud Ahmedinejad disallowed any foreign influence in formulating the Iranian policies which resulted in the resignation of Hassan Rouhani as the Chief Negotiator. The hardliner agenda only doomed the growth of Iran. The suspension of nuclear negoti- ations invited international sanctions leading to the crippling of the Iranian economy. But during the elections of 2013, Hassan Rouhani marked a new trend in the politics of Iran as the open criticism of the hardliners was something new to the people of Iran. Rouhani promised during his then presidential campaign to undertake developmental goals and job-creation in cooperation with the west- ern economies. Such a statement was against the Iranian hardliner political atmosphere. But Mr. Rouhani was well aware of the recent trends and he was aware of the need of the people. These promises worked well in his favour as he managed a victory as the President of the country. During his presidential tenure, Iran-USA marked the beginning of a new relation. The telephonic conversation between the then President Barack Obama and Hassan Rouhani was globally seen as the entrance of Iran into the international domain. The famous Nuclear Deal led to the lifting of International sanctions and marked a new beginning. The root cause of the issue was the Iran’s nuclear program, and the international settlement not only opened the veil of nuclear threat but also made Iran a new destination of global investments. The far-sighted decisions of Mr. Rouhani were welcomed by the masses but equally criticized by the hardliners and seen with skep- ticism. The landmark deal was also seen with suspicion by Saudi Arabia and Israel due to the lack of trust and cooperation between these countries. But, moreover this deal along with several reformist agendas gave Mr. Rouhani a different image contrary to the conventional earlier Presidents. 2017 Elections & Challenges Ahead The 2017 Presidential elections in Iran were internationally viewed as a symbol of hope and fear. The hope was the fulfillment of the promises in the landmark deal and leading Iran towards a path of a more open country to the world. But, the fear alongside was the hardliner approach which may jeopardize the efforts undertaken by all the stakeholders in reaching the landmark deal. So, the elections could be said to be contested between two schools of thought. On the one side was the Liberal School under the leader- ship of Hassan Rouhani and on the other side was Hardliner group under the leadership of Ebrahim Raisi backed by the clerics. As mentioned above, the Iranian politics is hugely determined with the support of the clerical family. The Supreme Leader’s support is of vital importance in maintaining a stronghold in the Iranian politics. Ebrahim Raisi is considered to be a closer associate of Supreme Leader Ayatollaha Khei- mini. During the presidential campaign, Mr. Raisi made an attempt in invoking the hardliner approach of growing dependence on the international community and instigating the religious feeling where the liberal stance was seen as a threat to the religion. Mr. Raisi also highlighted the failure of Mr. Rouhani’s policies of raising employment. There were challenges ahead of Mr. Rouhani both before and after elections. Let us first examine the chal- lenges to his road to President ship. He had faced several condemnations for his policies. The voters were also suspicious due to the prevalent rates of unemployment. But, Mr. Rouhani strategized his campaign in the manner which would woo the electorate and also gain support of the hardliners. He maintained his stance of following a liberal approach and making Iran more open to the world, but he also assured the electorates and clerics his decisions would serve towards bringing prosperity in Iran and would not pose any religious threat. His uncompromised position in securing the religious ideals helped him in gaining support from the clerics. He was often posed with the question of employment-creation to which he made a pragmatic stand. He vowed to his commitment, but also gave the electorate a choice that his remaining in power would only allow him to take further steps. His ouster would only lead to the threat of scrapping the nuclear deal and newer sanctions which would only make the conditions worse. Mr. Rouhani ended up successfully managing to convince the electorate and come up with a sweeping victory. But, now after conquering the internal challenges, he is posed with some international challenges. Peace Maker or Peace BreakerPage 26

News StoryThe war-torn Middle East is massively divided on the lines of religious and ideological differences. Thewar in the region has largely destabilized the Middle East and bears a global impact with rising levels ofradicalization and xenophobia.So, how Iran plays a crucial role in stabilizing the region or further nurturing the seeds of radicalization? Tounderstand this better, we must first examine the deteriorating state of the Middle East. The war ravagedregion has led to bloodbath leading to brutal war crimes. The war in Yemen can be taken as an example ofthe ideological differences. By this, we may also examine the Saudi-Iran differences as both the countriesare the stakeholders. The Houthi Rebels belonging to the Shia ideology are said to have the backing of Iranwhereas the Saudis i.e. Sunnis have been against the rebels terming them as a terror outfit and have con-stantly bombarded their locations. Mr. Rouhani here would have to maintain a balance in his actions wherehis approach towards Saudi does not become the reason of his downfall internally, but on the other handhe would also have to be careful in taking strict actions against the Saudis due to their close proximity withthe western countries. The landmark deal with the P5+1 must be aimed at furthering the goals. Mr. Rou-hani would have to maintain his “diplomatic sheikh” image because it is evident that he would face severalinternal pressures including from the Supreme Leader, and in order to achieve the goals he would have tobe careful by not succumbing to the internal pressures. The road ahead for him does not seem to be easy.As the suspension of the nuclear program may heighten the tensions with the rival countries, it would beseen as making Iran vulnerable to external aggression. Here, the President would have to play the role of apeace maker but more pragmatically. Any uncalculated move can be the cause of a big catastrophe.Coming to its Indian approach, then Mr. Rouhani can have a sigh of relief. Iran-Indian has a moreopen-ended diplomatic relations. The victory of Mr. Rouhani goes in complete favor of the Indian interest.India cannot undermine the strategic importance of Iran being a neighboring country of Pakistan. Iran andPakistan do not share cordial relations due to the ideological differences and Pakistan’s close proximitywith Iran. These differences are advantageous in the Indian interest, as India can exploit these differencesby engaging with Iran by diplomatic and military cooperation. The construction of Chhabar Port is oneamong other moves where India has presented its rapport with Iran. Mr. Rouhani being also aware of thelarge Shia population in the country would attempt to create a co-operative atmosphere where both thecountries can engage in different fields and strive to build stronger relations with India. India’s presence isfelt worldwide and Iran would equally want to exploit this opportunity for the development and prosper-ity of its citizens and also secure itself from external aggressions knowing the military capability of Indianarmed forces. Iranians show their finger after casting their vote in the first round of the presidential election at a polling station Page 27

Libertatem Magazine - Edition 29 What happens when you see your teachers fighting in your school corridor or how do you feel after watch- ing your grandparents confront each other. Our country, the largest democracy of the world, witnessed somewhat similar instances last month when the apex court convicted a sitting judge of Madras High Court for criminal contempt and sentenced him a jail term for six months, something which is quite unprecedent- ed. The judiciary being the guardian or teachers taking on one of their own members which came as an aberra- tion, not because there is no constitutional provision for punishing a sitting judge, there is: the removal of judges under Article 124 of the Indian constitution. Not only the judicial spectrum (including lawyers and judges) but even the polity of the country was at sixes and sevens. The issue also stoked up a new legal dis- course in the country and saw lawyers, politicians and bureaucrats taking different stands. The front page of the Frontline read Judges vs. Judges, which, to an extent, is an apt description but apart from the fact that a sitting judge was convicted, there are many other disputations with the Supreme Court’s judgment. To understand the issue in a much more comprehensive manner a glimpse at the chain of events in Justice Karnan’s case would be quite helpful. January 23: Justice Karnan wrote a letter to the Prime Minister of India exhorting him to take some strictPage 28

News Story Justice Karnan’s Case: An Inside Story Of Indian Judiciary Shashwat Tiwaristrict action against “high corruption at the judiciary”. The letter provided a list of 20 judges(Madras High Court) and names of three officers, one of them being the President of Tamil NaduAdvocates Association, who according to him, had detailed knowledge and proofs of the corruptdeeds of the twenty judges. He also requested a detailed interrogation of these three officers by“Central Agencies”. The Supreme Court took suo motu cognizance of the issue.Surprisingly, he refused to attend the contempt proceedings however, instead asking for a com-pensatory amount of `14 crore from the seven-judge bench for “disturbing his mind and normallife.”February 8: A seven-judge bench comprising Chief Justice of India and six senior judges of theapex court issued an order, directing Justice Karnan to abstain from any judicial and administra-tive work as may be assigned to him in furtherance of the post he holds. He was also directed toreturn all the files in his possession to the registrar of the High Court.February 13: The bench heard the case and took note of his deliberate absence even after issuing anotice. Also he did not authorise anyone to represent him in the case. The bench granted him Page 29

Libertatem Magazine - Edition 29 another opportunity and adjourned the case to March 10th. March 10: Again the bench noted Justice Karnan’s failure to appear. And to seek his presence issued a bail- able warrant through the Director General of Police. But on March 8th Justice Karnan sent a message to the registrar of the Supreme Court requesting a meeting with CJI and other senior judges. The bench on March 10th hearing took note of the message but held that the message could not be taken as a response to the contempt petition or the notice served to him. Also he complied with the orders of the Supreme Court and vacated the official bungalow. March 31: He appeared before the bench and was asked whether he accepted what he had written…the contents of the letter being available on the record. The bench observed that there was no affirmation on the matter, therefore the proceedings would take place on the basis of the written response which he had to submit within the four weeks from the date of the order. Justice Karnan had requested the bench to restore his judicial work. Also he told that he would not attend the next hearing and the court could arrest him if it pleased. After the hearing Justice Karnan “ordered” the seven-judge bench, including CJI to face the proceedings at his “residential court” for insulting him in open court. He also accused that this constitutes an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) 1989. This whole controversy took a new turn when he accused the judiciary for subjecting him to caste discrimi- nation and that he had been singled out. Although his actions were condemned by most of the legal frater- nity but the issue of casteism in judiciary was again brought up. Senior Advocate Prashant Bhushan in an interview regarded the actions of justice Karnan as comprehensible and reckless. He pointed out: “there is casteism within the judiciary, similar to what we see in higher society, among educated people outside. The same thing happens within the judiciary also.” May 1: The bench suspected his mental illness and ordered to constitute a board of doctors for his medical examination which he refused and submitted the report by 4th May. May 9: The last day bench considered that it was running out of time in view of his superannuation on June 12, and since Justice Karnan had exhausted all the options available to him it deemed fit to sentence him for six months. The judgement by the apex court was not a surprising one because the actions of Justice Karnan were mak- ing a mockery of the Indian Judiciary which should have been dealt in a stringent manner which the court did, not to mention his recalcitrance towards the proceedings where he didn’t bother to show up, knowing the gravity of the charges he levelled. The decision of the court was welcomed across the legal fraternity but there is a growing criticism against the Supreme Court regarding the manner in which it has dealt with him, including the actions and allegations against him.(frontline) There were some contentions raised not on the legality of the judgement but on the modus operandi on the court in this particular case. “there is casteism within the judiciary, similar to what we see in higher society, among educated people outside. The same thing happens within the judiciary also.” - Justice KarnanPage 30

News StoryIn my humble opinion, the following are the issues where the contentions may arise:Karnan’s Case: An AberrationOver the past there have been many instances where the sitting judges were removed through an impeach-ment proceedings as enshrined in the Indian Constitution, Justice Soumirta Sen and PD Dinakaran, thesignificance of this case lies in conviction of a sitting judge. And this is exactly the bone of contention.According to critics, the court should have ordered an investigation into the matter as per the new amend-ment in the section 13 of Contempt of Courts Act 1971, stipulates truth as a defence. The due to change inthe law, the procedure even if summary, should be preceded by an impartial and independent investiga-tion. But the bench sought to deal case stringently and explicitly mentioned the principle of equality be-fore the law, which is quite plausible. Also the proceeding could have taken place after his retirement butthe bench’s implicit objective was to send a message that it applied its contempt powers even on a sittingjudge.This case also highlighted the pitfalls and the need to amend the law and procedure with regards to suomotu contempt proceedings because there is no way to ensure Human Rights and Fundamental Rights ofthe accused in such cases. Otherwise the essence of democracy would be watered down by the might of thewhole judiciary which is pitted against the accused. The judgement itself highlights two important speciouspoints.Firstly, Nemo judex in sua causa, no one should be the judge in his own case, the contempt proceedings areinitiated against the accused contemnor and the court. The court, itself being a party and the judges decidesthe case. This is being construed as a violation to the principles of natural justice. But from the perspectiveof the courts it is very necessary to criminalise the disobedience of its decrees, judgments and orders. Thismakes judicial legislations binding on the country and upholds the sovereignty of Indian Judiciary.Secondly, it raises an important issue which was never brought up in Indian political discourse, QuisCustodiet custodies, who will judge the judges. This issue is widely debated in western countries. Someyears back, a judge of District of Columbia in his speech raised very pertinent question regarding what isnow called “Judicial Excess” and asked “How are we to be guarded by our guardian?” The answer can bejudges are bound by the law that is independent of their views.This compels us to delve into the jurisprudential norms which laid down the basis for our constitution andto rethink whether there is a need for a new mechanism which protects the citizens from the desires andtyranny of judges.Sometimes the greatest threat to the judiciary lies from within. Plato once asked a philosopher king “Is itmore advantageous to be governed by the best of men or the best of laws”, also he pointed out a basic hu-man trait which might be helpful to get an insight of the current scenario, that “Invest a man with authorityis to introduce a beast, even the best of men in authority can be corrupted but law in contrast is withoutpassion”.The Gag-OrderThe judgement has received major criticisms for its order, banning the reporting in Justice Karnan’s case.It is quite evident that the contempt charges are antithetical to freedom of speech and expression which is,though a Fundamental Right in Indian Constitution, it is subject to provisions that the state may invoke inspecial circumstances, which was aptly done in this case. But the order prohibiting Justice Karnan’s state-ments was uncalled for. Commentators across the spectrum, including legal circles, have expressed reser-vations with this part of the judgment.The three pillars of democracy practise separation of power which is also one of the intrinsic principlesexplicitly mentioned in our constitution. The Constitution of India provides that there would be separationof power among all the three and for the smooth functioning, there is a system of checks and balances. Eachbody has to perform its functions within the confines mentioned in the constitution and encroachment byany of the three would be strictly dealt with. Media is considered the fourth pillar of Indian democracy(specifically mentioned in Indian Constitution) which scrutinizes the other three, thus ban on dischargingits legitimate function of informing the people, provides the Judiciary an upper hand over the fourth pillar. Page 31

Libertatem Magazine - Edition 29 Justice Ajit Prakash Shah in his recent address on World Press Freedom Day greatly emphasized on the courts resorting to the contempt action against anyone who criticizes their judgement. He urged: “You must ensure that the press has its fair share of criticism and call out courts when they out to be. Courts must be more strained in their use of contempt proceedings as a tool”. But there is little ambiguity on the limits prescribed for the criticism of court. Ever since the rise of right wing the issue of restricting speech has come to the fore, the courts have a major role to play in form of laying down precedents. Section 5 of the Contempt of Courts Act 1971 itself ambivalent and paradoxical in nature one by stating that a fair comment on the merits of a case cannot attract contempt charges and other by not unequivocally defining “fair comment”. Criticism of Court when transgresses the limits of fair and bona fide criticism amounts to contempt of court. (Aswini Kumar Ghose v. Arbinda Bose, AIR 1953 S. C. 75). This ambivalence maintained in the statute may be a serious threat to the free speech. There have been many instances where the courts have widened the scope of words like “disobedience and obstruction” but mostly the interpretations are quite restrained and parochial. Conclusion Justice Karnan’s case will be regarded as one of the landmark cases in the history of Indian judiciary, where a sitting judge was sentenced for his uncanny and bizarre behaviour. Also his allegations have brought ignominy to the Indian judiciary. Though there has been much hue and cry about his mental illness so much that the Supreme Court had to order for his medical examination but according to me considering him of any mental illness or insanity would rather an act of idiocy because after the bench delivered its judgement he absconded from his place and was still hiding as a fugitive. He was absolutely in proper state of mind when he made such derogato- ry remarks for the Indian Judiciary. His actions have brought shame to the entire country and to curb such kind of activities from judges who are considered as the biggest law teachers of the country is despicable. However, this case has brought many important issues to the public attention which are to be dealt with as soon as possible. Firstly, the crisis in the Indian judiciary, there is a dearth of rational, logical, courageous judges who consider themselves under the law not above the law of the land. Also the situation is aggra- vated after the reinstatement of the Collegium System which highly criticised for its favouritism. Thus it would not be incorrect to say: “The Indian higher judiciary is going through one of its most testing times. Its credibility is being called into question, doubts are being raised over its independence, and resentment is growing over its inefficiency. No matter how good the rules or the institutional mechanisms, when it comes down to it, every- thing rests on the men and women on the bench.” Secondly, the courts which have the vested power to protect the rights of the citizens have violated the fundamental right of freedom of press and media without any plausible reasons which is a massive blow to essence of our democracy. The gag on the media came out of nowhere the orders of the apex court reeked off an urge to violate the solemn guarantee in the constitution. The media was not accused of contempt in the matter, also principle of natural justice demand that media should have been issued a notice and heard in the court, this is an ex-parte order. “The Indian higher judiciary is going through one of its most testing times. Its credibility is being called into ques- tion, doubts are being raised over its independence, and re- sentment is growing over its inefficiency. No matter how good the rules or the institutional mechanisms, when it comes down to it, everything rests on the men and women on the bench.”Page 32

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Libertatem Magazine - Edition 29 French Presidential election this year has been the most remarkable event in the history of France. Emman- uel Macron has been elected as the President and he has entrenched his role as the youngest president in the history of France. Incidence of ongoing tension as to the survival of the European Union and the fate of the France’s economy has made this election an eye catchy event around the world. Out of the candidates running for presidential election, since not a single candidate got majority, apart from the top two contenders - Ms. Marine Le Pen and Mr. Emmanuel Macron, a run-off was declared in order to decide the next President. Though both the contenders had different views with regard to issues such as trade, globalization and immigration et al., the main difference of opinion with respect to the French relationship with the European Union interested everyone around the world. Fate Of European Union While Ms. Marine Le Pen contended that France will exit from the European Union and promised to restore the country’s official currency “Franc,” Mr. Emmanuel Macron created a movement named “En Marche” which indicated that Mr. Macron is a Pro-European and believes that the European policies are very im- portant for the people in France and in order to move ahead in globalization. Mr. Macron also agreed that European Union was needed to change the policies so that they are at par with the situation of the country.FrenchVaisakhi Muddana on Elections: A Chance Towards Rebound Of The CountryPage 34

News StoryIn his opinion few reforms were needed, without which there would be difficulty moving ahead with thenumber of obstacles that had befallen on the country’s path to progress.Although Ms. Marine Le Pen won support from the former industrial and rural areas when she guaran-teed to reclaim the sovereignty of the France from European Union helping in protection of the borders ofFrance and French workers, Mr. Macron won the presidential election with 60% majority.Popularity of Mr. MacronAccording to Michael Barnier, the chief Brexit negotiator of European Union:- “Mr. Macron is a patriot andEuropean, and that France must remain European.”Following Brexit, European Union has been facing many problems and also issues pertaining to the mi-grant crisis, increasing number of rebellious capitals and slow economic growth which makes the exit ofFrance from the European Union a disaster for it, thereby questioning the very stability of the EuropeanUnion. Hence, Mr. Macron being elected as a President of France gives a relief to the European Union offi-cials as there are chances for them to reform their ways and give Europe a chance for recuperation.He proposes to stop British businesses from bidding within the European Union for public contractspost-Brexit.Charles Grant of the Centre for European Reform said -“Mr. Emmanuel Macron wants the reforms to be madeso as to increase the France’s economy and strengthen its position in Europe.”Policies of mr. Emmanuel macronMr. Macron being a firm believer and a fervent supporter of the European Union, considers that the UKcommitted a crime by exiting and also showed concerns with regard to the UK border controls promisingthe citizens that he would renegotiate the “Le Touquet Agreement” between France and the UK. This Agree-ment empowers the UK officials at the border to conduct checks in France.Mr. Macron has also rejected to share the debt of the member states and had his first official meeting withthe German Chancellor Angela Merkel, who agreed to help in the revival the European Union.As per the policies set forth for the campaigning of the election, Mr. Macron wishes to create a ‘EuropeanSecurity Council’ in order to bring all military, intelligence and diplomatic leader of the member states to-gether.He has also brought forward a five-year plan for Public Investment and Spending, where nearly 50 billioneuros will be invested in the areas such as transport, infrastructure, farming, job-training, and health care.He wishes to meet the environmental energy target thereby making changes to move from coal based ener-gy production to use renewable resource energy.Where Ms. Marine Le Pen wanted to shut out the immigrants from France, Mr. Emmanuel Macron insistson having a six-month period for assessing and processing the asylum requests and an integration programfor the foreigners who came to France. Mr. Macron in a rally in the month of October said-“If the state isneutral which is at the heart of secularism, then it is the duty of each and everyone to let others practice their religionwith dignity.” Therefore he follows strict secular policies.As regards the work visa i.e., talent visa, he wishes to reduce the amount of time require to obtain a visa, sothat skilled professionals are allowed to work in France. With regard to the economic policies, he proposesto reduce corporate tax from 33 percent to 25 percent in the future.For a better future of the French economy Mr. Emmanuel Macron insisted that it is vital for it to be a part ofEuropean Union and so as to be a part of the world globalization. But what holds in the future for Franceis yet to be seen with Mr. Macron who took charge of office on May 14th, 2017 with obstacles in the waysuch as “Hollande Syndrome” in Brussels as the former President had created voluminous expectations inBrussels and many more which currently are lying in the dark. Page 35

Libertatem Magazine - Edition 29 Cattle Trade Ban Nitya Jain On 23rd May, 2017 Environment Ministry banned the sale and purchase of cattle from animal markets for slaughter to ensure their welfare and also to prevent smuggling by issuing a notice under Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, which turned out to be a controversial issue. According to Ministry, these rules are result of two Supreme Court orders from the years 2015 & 2016 wherein Supreme Court had asked the government to draft rules for welfare of the animals by preventing them from being smuggled out of India to Nepal for Gadhimai festival where numerous sacrifices take place. As a result, the rules impose various sanctions on the slaughter market, farmers, export market and certain religious minorities. Details of The New Guidelines The notification entails detailed rules which defend animal rights and prevent illegal smuggling. Now, the word ‘cattle’ includes not only the primary cow and calves but also buffaloes, heifers, camels, bullocks, bulls and steers. The new guidelines tend to alter the definition of ‘animal market’. According to the notification, animal market means, “a market place or sale-yard or any other premises or place to which animals are brought from other places and exposed for sale or auction and includes any lair age adjoining a market or a slaughterhouse and used in connection with it and any place adjoining a market used as a parking area by visitors to the market for parking vehi- cles and includes animal fair and cattle pound where animals are offered or displayed for sale or auction” Furthermore, the seller and purchaser will now have to give an undertaking that the cattle sold is not for slaughter and won’t be sold for atleast six months from the purchase date. A documentary proof that the purchaser is an agriculturist is also mandatory. Further, a seller cannot sell cattle outside the state with- out permission under State cattle protection laws. Both seller and buyer will have to produce identity and farmland ownership documents. The transaction involves loads of paperwork and documentation. – After buying a cow, a trader must make five copies of proof of sale and submit them at the local revenue office, the local veterinary doctor in the district of the purchaser, animal market committee, apart from one each for seller and buyer. There is a complete replacement of competitive market with direct sourcing as the rules imply that the buyers will have to go to the farmer directly to buy the cattle. Further, the number of cattle houses will be reduced to one or two as compared to hundreds which existed before the notification. Economic Implications The government explains this move to be directed towards reducing illegal slaughtering of bovines in the country. Their aim is to eradicate all the illegal slaughter houses as such a practice is blatant in the country. For example, in 2013, the state of Andhra Pradesh estimated that there were 3,100 illegal and 6 licensed slaughterhouses in the state. The notification will surely upturn this scenario. Further, a serious bone of contention has been the buffaloes. Buffalo meat is one of the primary sources of meat export in the country. The Indian buffalo meat industry exports worth $4 billion annually and more, apart from supplying raw hide to leather units that account for another $5.5 billion. Annual herd replace- ment through slaughter is 15 per cent or 16 million out of a total population of 108.70 million. The buffalo export industries will face the worst hit as procurement of raw material would become extremely difficult for them. They complain that they were not consulted before issuing such a notification which would jolt their business tremendously. As a result of which exports are prone to deceleration in upcoming months as the domestic supply chain is blocked. Another stakeholder is the farmer. The implication will be two-fold.Page 36

News StoryFarmers often rear bulls and buffaloes instead of cows as they provide more milk and their meat fetchesthem more price. After the cattle (bulls and cows) have aged and stop milching, the farmer sells them inanimal market and earns around 15,000-20,000 rupees out of the sale. But after the notification, it would be-come difficult to dispose off their cattle, also resulting in a low income. This would further lead to a hike inthe prices of milk and milk products as the farmers would not receive their normal income. Now, a farmermay be forced to sell his cattle for half the price because of the absence of a free animal market. The last nailin the coffin is complex paper work as it will create a problem for such farmers and traders who are illit-erate. The transportation of cattle has also become difficult because of the stringent norms and the highlycharged cow vigilantes.A new confusion is being raised due to the definition of lair age. If a lair age is also considered “animalmarket”, it rules out the possibility for slaughter of even livestock sourced directly from farms. Hence,slaughterhouse community is perplexed as their business might come to a standstill.Social ImplicationsMany people see this new law as being religiously motivated. Cow is a holy animal for the majority where-as it is a source of protein and income for the minority. This tussle was aggravated on 23rd May as theministry issued Cattle trade laws. The religious minorities including Muslims, Dalits eat beef and own themajority of slaughterhouses in the country. Also, some of them use aged cattle for making sacred sacrifices.On the other hand, Hindus worship cow as their mother and stand against eating and trading of beef. Thegovernment’s notification which was aimed at protection of the cattle was interpreted by some religiouslycharged people to be against the minority and took an ugly shape soon after its issuance. This has a historyattached to it. BJP has often advocated cow protection along with its ideological supporter- RSS. Lately,there have been hot debates in the country on ruling government trying to change the eating habits of thecountry. A recent video of a Muslim man having been charged to have eaten beef and beaten up brutallyby cow vigilantes went viral and depicts the gravity of the situation. It is being hyped up as a proxy warbetween the majority and minority with the government inclining towards the majority.Regulating cattle trade is a state subject but animal welfare is handled by the Union. Environment ministrynotified the rules under animal welfare laws but gave the enforcement power to district administration.States like Kerala and West Bengal have vehemently opposed the order and said that they will not followeven an inch of it. Kerala has organized beef festivals and West Bengal’s Chief Minister has asked its policenot to approach any slaughter house for closing them. Mamta Banerjee posed the question of right to eat.She stated that what one wants to eat is a personal choice and state has no right to intervene in it. Kerala’sChief minister Pinarayi Vijayan called the ban as “anti-federal, anti-democratic and anti-secular”. He alsourged his counterparts in other states to “stand together” and oppose it. Beef and buffalo are also someimportant ingredients in north-eastern states and a source of cheap protein for its poor people. Hence, theoutcry roars from all directions in the ears of the Union.Legality Under QuestionAccording to some legal experts the legality of these rules is questionable. The Union has used ‘crueltyto animals’ to justify the new rules but the Act under which these rules have been framed does not treatslaughter as ‘cruelty’. While framing rules, one cannot override the Act. Further, the jurisdiction of preser-vation of animals falls exclusively under the state list. One can also see the new rules as barring one’s rightto trade and profession which is a fundamental right under the Constitution of India. The ownership ofcattle is also jeopardized when the owner is forbidden to sell it for first 6 months.ConclusionCattle ban has lead to a huge outcry in the country. While the government states its pious intentions, manyhave been calling the guidelines un-secular and unreasonable. The economic front of the country is oughtto be affected negatively because of the ban as the exporters are unable to receive the raw material. Internaleconomic turbulence will also occur because of the loss to farmers. The agenda is often being termed as po-litical propaganda of the right winged government and faces stringent opposition from the leftists especial-ly Kerala and West Bengal. Strife between the majority and minority has surfaced as the cow vigilantes be-come violent and numerous cases of deaths, rapes and injuries are reported because of beef consumption.However, the move is welcomed by the human right activists because of its protective approach towardsthe bovines. The Union has called for suggestions and promised to revise the ban if required. Indeed theUnion needs to mull upon the implications of this ban as opposition becomes vigorous day by day. Page 37

Libertatem Magazine - Edition 29 The Deplorable Veracity of Lalu and Scams (Scamming the Nation Since 1990) Chahat Mangtani Ours is a country where freedom fighters and framers of Modern India, both are treated as Gods, but their virtues should also be put to the same sanctity. there are quite a few illustrations for the same. The pillars of our preamble; sovereignty being turned to nothing more than a group of oligarchs who work on the basis of self-interest; socialism, which is left on papers to justify false promises; secularity in caste politics and communal riots turning it into secular, Democratic republican system in the people’s unawareness about their power and tolerance towards the cruelty by the government and their scams. When it comes to politics one of the brimming personalities in the list of politicians is Mr. Lalu Prasad Yadav. Many accusations have been made about him, citing him as a promotor misdemeanour and ‘Gunda Raj’ in Bihar. This is captured in blazing prose by Sankarshan Thakur: “What do we say of Bihar? What do we say of a state itself so punched and blown, it is not even supposed to feel pain? What do we say of a state so inured to wretchedness it refuses now to convey it or complain? ... Yeh Bihar hai. Yahan sub kuchh chalta hai.” We have always had leaders with differing ideologies and modus operandi (a specific way of doing something) in our system, as Mahatma Gandhi and Subhash Chandra Bose stood at opposites ends when it came to ideas, but the moment Bose gave Gandhi the title of “Father of the nation”, Mahatma Gandhi titled him as “Netaji”. Yet we see no such fraternity, all we see is cut throat competition for pow- er, fame and money.Page 38

News StoryNepotism and The LaRa ScamLalu Ji’s nepotism is no big secret in the country, in fact it is more like an open book to the whole nation.When he realises that he can’t fight elections in the light of his conviction in the Fodder Scam, he procuresmeans to keep power to him by simply making his wife and children fight elections where the real pow-er is exercised by him. Recently, it has been unveiled that Rashtriya Janata Dal’s chief Lalu Prasad Yadavand his minister-son Tej Pratap Yadav had their hands dirty in a soil purchase scam, supposedly worthINR90 Lakhs. it was after the allegation made by the opposition BJP, claiming it to be a scam actually worthINR 700 crores and also calling it a ’conflict of interest’, the RJD came under fire. The allegations includedwere regarding laundering of black money by the RJD minister through his shell company named DelightMarketing Pvt. Ltd. which Tej Pratap and other members of Lalu Yadav’s family were made directors of.shell companies are the ones which are mainly non-trading corporate entities, are inactive when it comesto business operations and insignificant assets. And all in all, are just used as a vehicle for various financialmanoeuvres. The ultimate purpose behind this concept is to avoid taxes without attracting any kind of le-gal attention. The scam, named “LaRa Scam”, is named after Lalu Yadav and his wife Rabri Devi, by takingprefix from their names. According to the controversy, Lalu Yadav’s elder son Tej Pratap Yadav violatedthe tender rules by selling soil worth INR 90 Lakhs from a mall which is under construction. This mall isbeing built on a land owned by his family. Documents as evidence have also been brought into picture,claiming Rabri devi and both his minister sons as partners in Delight Marketing Pvt. Ltd.Bihar BJP has alleged that one of the innkeepers had given a piece of land to Lalu worth INR 100 crores,e in return for railway hotels. BJP claims that Lalu was given this piece of land during his tenure as theRailway Minister of Bihar i.e. a period ranging from 2004-2009. Lalu on the other hand blatantly deniedsuch allegations and countered by claiming, that the railway hotels in Ranchi and Puri were allotted to thehotelier during Atal Bihari Vajpayee’s tenure as the Prime Minister of India, between 1998 & 2004.The Fodder Scamit’s been around 21 years, but the ghost of Fodder scam case has stirred up from time to time, hauntingLalu Yadav sporadically. technically the case talks about the large-scale pilferage of funds by the Bihargovt, fabricating forged bills for authentication of the payments which were never even made. The scam,popularly is also known as “Chaara Ghotala”, which involved fraudulent transactions made in the name ofprocuring cattle-feed over a period of 20 years, under successive regimes.Who would have imagined that such petty forgeries and numerous fraudulent transactions on small scale,would go on to become a INR 100 crore scam, unseating an reigning chief minister? Eventually, thesesmall-scale forged transactions flourished over the course of years, and snowballed into a whoppingINR945-crore scam. This scam was first sniffed out in 1985 by the then Comptroller and Auditor General ofIndia TN Chaturvedi. It was when he noticed a consistent delay in the monthly accounts submission fromBihar Treasury.This brings us to his conviction for 6 years regarding the very same case. there is a serious need to uponthis case because the scam took place in 1994 and the conviction process began exactly 10 years after that.Why a Gap of 10years? is our judiciary so weak and small, that it is not able to stand tall and strong againsta minister? That is the question upon which we all need to ponder. It also sheds light upon the pendency ofcases and delay in judgements caused due to it.The “great” Bihar alliance also needs to think/contemplate that whether Mr. Nitesh can explain how agangster threaten so many people of a riot if his demands are not met? Whether can he even continue togovern with such a party? And if this is all false, then can Mr. Nitish come out in the open and say thatLalu does not support a Criminal named Shahabuddin even after hearing the call recording for the same?Why do people of his constituency blindly support him despite his conviction and so many allegations ofcorruption against him?The first possible reason could be that Mr. Yadav is widely known for his caste and communal politics. Heis also behind a caste combination which he calls by the acronym RMY (Rajput, Muslim, Yadav) peoplebelonging to which join his party and work as public pleasers and concurrently he tries to benefit them Page 39

Libertatem Magazine - Edition 29 wherever possible, and also provides them with all kinds of exemptions for their wrongdoings. use of muscle power and booth capturing during electoral voting becomes the second reason for the same. and the third and the final reason for the same being that, not everyone but a certain section of society is cor- rupt. We are all on a sale offer in today’s scenario it’s just a matter of ‘Paisa phek tamasha dekh’. if we trace back the origin of Lalu Prasad as a politician, he came up as a student leader and his wing was of a view to unseat the current arbitrarily functioning government. he was “blessed” to be born in a high caste family, due to which the votes turned in his favour. As power came to him, corruption followed. Reasons for such scams and possible steps for a solution We see that even if we go to this system with clean hands and good intentions, it tends to buy our virtues against power and money. Lalu Yadav being the railway minister is credited for bringing the Indian Rail- ways in profit during his tenure. these were the times, despite suffering all the losses the railways recov- ered drastically and to study this many scholars came to our country. With such capabilities, there is no possible reason as to why Bihar state is on it’s all time low when we see the income. The story of Laloo’s rise/ascend underlines the extent to which democracy has displaced traditional modes of elite formation based on education, ability and leadership qualities thereby creating a parallel avenue for the acquisition of power. If we look at it practically, obviously Lalu Prasad alone can operate these scams, I believe everything boils down to one single thing, that is education. Our education system where we teach our children so that they can pay officials to pass. foundation should be strong enough that we keep only what we deserve, know our rights as well as duties and most importantly respect each other and each other’s rights, so that people with evil intentions do not get the environment to rely on scandalous means. When we proudly boast about our country being the biggest democracy we should also ponder about the functionality part of it. the basic principle of democracy gives power to the citizens of this country, but on the contrary, they smash the whole purpose of the democracy by not using these powers. Thanks to the social media penetration, people can express their feelings and ideas to a wider audience, let us use these platforms to reconstruct our country because if this continues, then exodus of the jobless/unemployed and poor people to other states will continue till the immigration of job seekers will become clandestine.Page 40

News StoryAn Analysis of theMental Healthcare Act, 2017 Niyati Raval Page 41

Libertatem Magazine - Edition 29 The Union government has recently launched the National Health Policy, 2017, which focuses on provid- ing better treatment, rights, and legal remedies for patients. It separately focuses on treatment for mentally challenged patients. So, the parliament has recently passed the Mental Healthcare Bill, which repeals and replaces the Mental Health Act, 1987. It was published on 7th April 2017 in the Official Gazette of India. It provides for protecting and restoring property rights of mentally ill persons. The Mental Healthcare Act, 2017 provides statutory rights to mentally challenged and psychic patients in the form of a right to access mental healthcare and treatment. It also provides for procedure and process of admission, treatment and discharge of patients. Backdrop of Mental Healthcare Act, 2017 Since the advent of mankind on this planet, mental disorders have remained one of the unsolved puzzles faced by the medical fraternity. Sometimes, mental retardation, which exists by birth, is also treated at par with a mental disorder. However, this is not the case. There may be ‘n’ no. of factors affecting the mental health of a person. Psychologists have tried to trace the causes of said disorders, viz. depression, com- plexes, harassments faced during childhood/ juvenile period, etc. In ancient times, people suffering from mental disorders were discriminated and ostracized. They were also made to undergo physical tortures and chained in closed rooms or in even more inhumane conditions. Even in the modern times, certain societies continue the same practices. Many societies consider that mentally ill persons can- not be cured. Mental healthcare is one of the neglected areas in the medical field in India. The so-called mod- ern treatments are sometimes inhumane for mentally ill patients without prior writing to them. But, the new Act provides for an ‘advance directive’ in writing, which is not for minors, stating how they want to be treated for the particular illness, and which has to be vetted by the medical practitioner. The patient can have a ‘nominated representative’, informing choices of the patient to have mental treatment. The Act replaces the Mental Health Act of 1987. Public health is a subject of the State List. The Bill mandates the Central and State governments to provide and ensure better treatment and access to health services in every district. Earlier, mental health establishments included only the psychiatric nursing homes and hospitals. But now, under the Act, Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy establishments controlled by government are also included. It also states that any mental health establishment has to be registered with a Central/State mental health authority. It puts an obligation on the Centre and State level medical institutions to maintain a list of mentally ill patients undergoing treatment. The State authority shall also prepare a register of the professionally qualified personnel to provide healthcare services. Salient Features of the Act Firstly, it broadens the definition of the mental disorder. It does not include mental retardation. The former includes substantial disorder of thinking, mood, perception, orientation or memory that grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, mental conditions associated with the abuse of alcohol and drugs, while the latter is a condition of arrested or incomplete development of a person ‘s mind, especially characterized by sub-normality of intelligence. Secondly, it guarantees rights regarding property, and the manner of better treatment. For children, there are child mental healthcare services and for senior citizens, specific services made. The appropriate govern- ment authority shall ensure that no discrimination be made in the quality of services provided to mental challenged persons. The Bill states that every person would have the right to specify how he would like to be treated for mental illness in the event of a mental health situation. They will also specify the person responsible for taking decisions with regard to their treatment, admission into a hospital, etc.Page 42

News StoryThe Bill guarantees every person the right to access mental healthcare and treatment from the government.This right includes affordable, good quality, and easy access to facilities such as minimum mental healthservices in every district. Persons with mental illness also have the right to equality of treatment, and pro-tection from inhuman and degrading treatment.Currently, attempting suicide is punishable with imprisonment for up to a year and/or a fine. The Billdecriminalizes suicide. It states that whoever attempts suicide will be presumed to be under severe stress,and shall not be punished for it. Therefore, Section 309 of Indian Penal Code will be read as this one. Theelectro convulsive therapy will only be allowed with the use of anesthesia and, moreover, out of bounds forminors.The Bill requires that every insurance company shall provide medical insurance for mentally ill patients on the same basis as is available for those with physical illness- es. A person with a mental illness admitted to a mental health establishment shall have the right to refuse or receive vis- itors, subject to the norms of such mental health establish- ments. The concerned authority needs to fulfill the criteria, as mentioned in the bill. Any establishment has to be registered with the appropriate Central/State mental health authority. General punishment of imprisonment up to 6 months, or a penalty up to Rs.10,000, or both, is provided in the Act. It provides the procedure and process for admission, treat- ment, and discharge of patients. The said Act also calls for establishing Mental Health Review Commissions at State level, and Mental Health Review Boards in districts, re- sponsible for reviewing the procedure to make advance directives, and advising the government on implementing a mentally ill person’s rights.Challenges posed by the ActThe Bill does not provide for advance directive to minors, as per Section 5 of the said Act. All the servicesare to be ensured by both Central and State governments. The expenditures estimated will not meet theobligations under the bill.The Centre and State, both have responsibilities as per the Act; it does not provide sharing of funds be-tween them. All the States have different financial conditions; the Central government has to ensure fundsfor meeting the legal obligations.Some suggestionsPublic health is a State subject. It does not address guardianship of mentally ill persons. The 1987 Act hasdetailed the appointment and removal of guardians for patients. But it is also mentioned in Persons withDisabilities Bill, 2014, which is pending in the Parliament. There is a dearth of 4500 psychiatrists and 12500staff members to cater to the needs of mentally challenged patients. ‘Mental Health Review Commission’,established under the Mental Healthcare Act, 2017 is an attempt to streamline mental healthcare delivery.It decriminalizes suicide and prohibits electro convulsive therapy. It is, however, out of bounds for minors.If some of the past years’ reports are seen, suicides are committed by students of schools and colleges. Theformer are higher in number, maybe due to peer pressure, or academics. Mental childcare homes need tobe cautious while giving treatment; advance directive should be provided to the children, or to their guard-ians. The challenge needs to be met. Also, specific punishments need to be given in the Mental HealthcareAct, 2017. There are remedies and treatments available in Ayurveda and other traditional methods ofIndia, which are safer than electro convulsive therapy and other modern techniques. We hope the recentlymade law will be implemented properly to meet the obligations of the Mental Healthcare Act, 2017. ********** Page 43

Libertatem Magazine - Edition 29 the cou

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Libertatem Magazine - Edition 29 Supreme Court mandates linking Aadhaar Card with PAN Card Swarnalee Haldar Binoy Biswam v Union of India and ors. (W.P No- 247 of 2017) The Supreme Court on Friday upheld the newly inserted provision in the Income Tax Act man- dating the linking of Aadhaar with Permanent Account Number (PAN) for filing of I-T returns, but it partially stayed its operation. A Bench of judges A K Sikri and Ashok Bhushan said those who already possessed Aadhaar number would have to link it with PAN, but it could not be insisted upon in case of people not possessing Aadhaar. The bench held “those who are not PAN holders, while applying for PAN, they are required to give Aadhaar number. This is the stipu- lation of sub-section (1) of Section 139AA, which we have already upheld. At the same time, as far as existing PAN holders are concerned since the impugned provisions are yet to be consid- ered on the touchstone of Article 21 of the Constitution, including on the debate around Right to Privacy and human dignity, etc. as limbs of Article 21, we are of the opinion that till the aforesaid aspect of Article 21 is decided by the Constitution Bench a partial stay of the aforesaid proviso is necessary. Those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules” Issues that were before the Court 1. Whether 139AA is violative of Article 21? 2. Whether the Supreme Court is permitted to overrule its previous judgments where it has ordered Aadhaar being voluntary? 3. Does 139AA amount to compelled speech under Article 19(1)(a)? The judgment stated that- Whether the Aadhaar violates the right of privacy and human dignity both of which are part of Article 21 of the Constitution, should be dealt by the constitutional bench and the Court deliber- ately refrained from entering the said arena. Section 139AA of the Income Tax has passed the muster of Articles 14 and 19(1)(g) of the Con- stitution. However, more stringent test as to whether this statutory provision violates Article 21 or not is yet to be qualified. Therefore, the Court made it clear that Constitutional validity of this provision is upheld subject to the outcome of batch of petitions referred to the Constitution Bench where the said issue is to be examined.Page 46

Law commission the Courtroompropose amend-ments to provisionsrelating to bailSwarnalee HaldarThe Law Commission has suggested the need for a complete overhaul in the manner bails aregranted by the court. In its Report submitted to the Government, headed by the Commissionheaded by Justice BS Chouhan the commission made recommendations proposing amendments inthe Criminal Procedure Code. The Commission stated that the existing system of bail in India isinadequate and inefficient to accomplish its purpose.Some of the major suggestions are-1. In s. 438 of Cr.P.C. after examining large number of cases, it is recommended that anticipatory bail must be for a period prescribed by the Court granting such bail or till the charge-sheet is filed, whichever is earlier.2. Section 437A of Cr.P.C was inserted in 2009, in view of the recommendations of the Law Com- mission made in 1996. This was done to give effect to the judgment of the Gujarat High Court in Harish Laxman Solanki of 1994. The said judgment was over ruled by the Full Bench of the Gujarat High Court in Omprakash Tekchand Batra vide judgment dated 14.08.1998. The Full Bench had held that imposing such conditions in exercise of s. 482 Cr.P.C. was unconstitu- tional, illegal and void ab initio. The provisio s.437A, was inserted without taking note of the Full Bench Judgment. The Allahabad High Court in Nannu’s case dated 13.02.2012, has made suggestions for taking only personal bond of the person acquitted of all the charges, giving un- dertaking to appear before the higher Court, if so required. The Commission recommends the substitution of the said provision by providing that after acquittal of all charges leveled against a person, his personal bond be taken which will serve the purpose. Imposing any other condi- tion may be violative of his constitutional and legal rights.3. In case where the accused is granted bail and is not able to furnish sureties within a period of thirty days and moves an application for varying the bail conditions, the court would hear the application and pass an appropriate order. It is further recommended that the Court should not insist for giving local surety. Outside surety, may be accepted after verification of his an- tecedents and veracity of declaration so made through the investigating officer.4. The actual period available for investigation has to be taken into consideration excluding the period of hospitalization etc.5. When a person is arrested without a warrant, he would be informed by the arresting officer that he is entitled to free legal aid and may move an application for bail, orally as well as in writing (as far as possible), in the language he understands.6. In a case of default bail, if the accused is not able to furnish surety within seven days, the Court, on his application may vary the conditions of bail....7. The law panel has also taken into consideration the fact that poor people often face problems with the payment of surety. Hence, it has recommended that in case an accused is granted bail but is not able to furnish sureties within 30 days and moves an application for varying the bail conditions, the court would hear the case accordingly. The commission has also kept the door open for the acceptance of non-local surety after investigation by the investigating officer.8. Bail applications should be decided by subordinate courts within a week and high courts shall frame the rules accordingly. Page 47

Libertatem Magazine - Edition 29 Shashi Tharoor sues Arnab Goswami for defamation Swarnalee HaldarA civil defamation suit has been filed by Congress MP Shashi Tharoor against Managing director ofRepublic TV, Arnab Goswami. Mr. Tharoor had filed the suit seeking damages to the tune of Rs 2 crore,damage and compensation “for having suffered humiliation and having suffered severe loss of reputationin the eyes of the public and he has baselessly been declared by the defendants as the alleged murdererof his late wife and had also sought a direction from the Court to restrain Republic TV from broadcast-ing any show relating to the death of his wife till the investigation is completed by the Delhi Police. Thelawsuit filed through advocates Muhammad Ali Khan and Gaurav Gupta claimed that the recordingswere released in a sensational manner with an aim to appease the viewers and created a non-existingcontroversy by maligning his public life and image. While issuing notice to Goswami and channel JusticeManmohan said “Bring down the rhetoric. You can put out your story, you can put out the facts. You cannot callhim names. That is uncalled for,”The plea mentioned that ,it is not out of place to say that defendants (Goswami and TV channel) broad-cast news reports and alleged expose’ which were intended to lead the viewers to believe that the de-ceased was murdered either by plaintiff (Tharoor) or at the instance of the plaintiff. Such a broadcastclearly has the potential of adversely impacting the ongoing investigation into the death of the deceased.He has referred to the broadcasting of news items from May 8 to 13 when the TV channel claimed to airan expose connected to the death of his wife.Such a broadcast clearly has the potential of adversely impacting the ongoing investigation into the deathof the deceased, while seeking to restrain from “maligning and defaming him in any manner” by report-ing or broadcasting the news relating to the death of Pushkar. “Bring down the rhetoric. You can put out your story, you can put out the facts. You cannot call him names. That is uncalled for” ~Justice Manmohan said while issuing notice to Arnab Goswami and Republic TVPage 48

the CourtroomOn Dowry Death and the ViolentDays that Precedes itJane Maria TomyFactsA woman had committed suicide in her matrimonial home within seven years of marriage. There were noimmediate quarrels with her husband or in-laws that could have been said as a precipitating factor for thesuicide. Nevertheless, the testimonials of the brother, mother and the neighbor of the woman was hintingat matrimonial cruelty meted out to her for over a long period. The testimonials states that she was beatenup by her in-laws. Two Days preceding her death, when her brother met her on the Rakshabandhan, thehusband, Ashok Kumar had demanded Rs. 5,000, a color TV and clothes. On account of all these facts, theState was alleging that Ashok Kumar is guilty under Section 498A and Section 304B.IssueCan the conviction of a man in a case of dowry death be set aside merely on the ground that no harassmenthad occurred right before the incident?JudgmentThe court held against Ashok Kumar in this matter. The court, first of all, referred to the facts of the caseand held that there was sufficient evidence that the wife was harassed for dowry from the testimonials ofthe relatives and the neighbours of the deceased. The court noted that –“Merely because the postmortem report noted that the deceased was strong and well built would not belie the depo-sition of the mother of the deceased that she was not given food because the same was occasional and not that thedeceased was never given food. Further non-mentioning of burn injuries in the postmortem report also does not showthat the deceased was not meted out such a cruelty.”Thereafter, the court looked into the interpretation of Section 304B IPC and turned to the legal questionabove. Can the conviction of a man in a case of dowry death be set aside merely on the ground that noharassment had occurred right before the incident? Section 304B deals with Dowry death and it defines itas follows :-“Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circum-stances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty orhar¬assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, suchdeath shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.”Here, the language of the Section stipulates that the husband or in-laws must subject the woman to cruelty‘soon before’ her death. But, what is the exact time required for it to become ‘soon before’?The court referred to the landmark judgments in this regard. In Kans Raj Vs. State of Punjab and Others -“The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression“soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would implythat the interval should not be too long before the time of making the statement and the death. It contemplates thereasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances ofeach case. In relation to dowry deaths, the circumstances sowing the existence of cruelty or harassment to the deceasedare not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread overa period of time.”Further, the court also noted that, by virtue of Section 113-B of Evidence Act, one can take presumption ofdowry death if any reasonable connection can be shown with the death and the harassment. It is not re-quired to show an immediate spark of violence on the day of the death of the wife. The court referred to thecase of Bansi Lal v. State of Haryana to rely on this point.Therefore, the court held that it is not necessary to prove the existence of an immediate violence to hold theappellant responsible for the dowry death. The court held in these words that -“Section 304B IPC does not contemplate that the harassment should be within minutes or hours or few days of thetime since death but a reasonable period prior to the death when deceased is subjected to cruelty is sufficient to showthe live link...” Page 49

Libertatem Magazine - Edition 29 Abortion : Not anymore hard or fast Jane Maria Tomy Facts A rape victim of 16 years had become pregnant. She had approached the Gujarat High Court at the 24th week of pregnancy to allow for abortion under the Medical Termination of Pregnancy Act (hereinafter MTP Act). Issues Can the High court take into account the best interests of the child and allow for the abortion of a foetus that is older than 20 weeks under the MTP Act? Judgment This issue is a much recent debate that is ongoing among the courts. The MTP Act provides that an abor- tion can be allowed only on a foetus that is 12 weeks to 20 weeks old. Also, the registered medical practi- tioner has to confirm under Section 3 of the MTP Act that the continuation of pregnancy shall be causing risk to the life of parent and/or child. In case of rape, Explanation 1 gives a legal presumption that the pregnancy would cause grave injury to the mental health of the woman. Till recently, the courts had stuck to a hard-and-fast application of this rule. Therefore, if the woman be- came a little late to approach the court causing the foetus to cross the 20 weeks line, the courts often reject- ed the petition. But now, the courts have been taking a lenient view depending on the ‘best interests’ of the woman and also, depending on the facts of the case. In this case too, the Gujarat High Court referred to the apex court decision in Chandrakant Jayantilal Suthar v. State of Gujarat where the abortion of a 14 year old rape victim was allowed despite crossing the 20 weeks margin. The best interest test was elaborated in the case of Suchita Srivastava & Anr. vs. Chandigarh. It was observed by the court in that case – In the present setting, this means that the Court must undertake a careful inquiry of the medical opinion on the feasibility of the pregnancy as well as social circumstances faced by the victim. It is important to note that the Court’s decision should be guided the interests of the victim alone and not those of other stake- holders such as guardians or society in general. It is evident that the woman in question will need care and assistance which will in turn entail some costs. However, that cannot be a ground for denying the excise of reproductive rights. Considering the same parameters, the court took a lenient view in this case as well. The court noted that forcing a minor girl who had undergone the trauma of rape to give birth shall be inhuman. Adding to that, the court also noticed that she was already facing health problems like anaemia and she does not have the physical stamina to continue in pregnancy. Therefore, the court allowed the abortion of the foetus, al- though the minor was 24 weeks pregnant.Page 50