Libertatem Magazine - Issue 30 [July 2017]

EDITION 30 JULY 2017LIBERTATEM MAGAZINE www.libertatemmagazine.comCover StoryThe Modi-TrumpMeetFeatured StoryQatar Crisis &SanctionsEditor’s PickReal EstateRegulatory Authority

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 30 - July 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 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) Saloni Sharma (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) 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) Shresth Vardhan (Institute of Law, Nirma University) Debajyoti Saha (School of Law, Christ University) Mohammad Azeemullah (University of Al-Asmariya, Libya) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Jane Maria (National Law University, Odisha) Shweta Subudhi (Midnapore law college, Vidyasagar University) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2017]

Contents Contents of Edition 30 July 2017 Volume 3 Number 7 Edition 30Cover StoryThe Modi-Trump Meet: Beyond Hugs and Handshakes (p.8)Featured StoryQatar Crisis and Sanctions (p.4)Legal News StoriesAll about the recent Farmers’ Agitation (p.12)Implementation of GST (p.14)123: A March Much Needed (p.18)Sahayak System in Indian Army (p.20)UK Elections: Brexit And Rise of The Right Wing (p.22)TATA-Mistry Corporate Conundrum Drags On… (p.24)Dumb Internet: A way forward to net neutrality (p.28)Editor’s PickFasting in Islam and its Universal Values (p.30)#NotInMyName: Misplaced Priorities? (p.31)Restoring Faith in Medical Profession (p.32)RERA: New regime of the Consumer-Centric Law (p.34)the CourtroomHow CCI penalized Hyundai for 87 crores? (p.40)The Deadly Crimes of Alcohol: the Hooch Tragedy (p.41)Your Right to Redemption is not Forever (p.42)The Jio Competition (p.43)Rights of victim, offender must be considered equally: Delhi HC (p.44)Gujarat High Court concluded Zakia’s Hearing (p.45)Supreme Court decides the 1993 Mumbai Serial Blast Case (p.46) © 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 30Qatar Crisis andSanctions:A nugatory attempt to clampthe fall-out By Khushbu ShahPage 4

Featured Story Prologue On June 5, 2017, the Middle-East plunged into the worst diplomatic crisis the Gulf has witnessed in decades. Bahrain was the first among the Middle Eastern Countries to offi- cially cut-off its diplomatic ties and impose Comprehensive Sanctions on Doha, followed in line by Saudi Arabia, the UAE and Egypt who made their announcements within the next 10 minutes. The Four nations namely, Saudi Arabia, Bahrain, the UAE and Egypt, in their statements, announced the cancelling of all land, air and sea traffic with Qatar, ejecting of its diplomats and ordered Qatari citizens to leave within 14 days. The common thread run- ning through the reasons for the imposition of Multi-Lateral Comprehensive Sanctions, has been the alleged connivance of Qatar in abetting terrorist activities of Al-Qaida, Islamic State, Hamas among other terrorist groups. The fact that as much as 40% of Qatar’s food comes over the Saudi border inevitably, stirred up commotion and distress in the oil- and gas-rich nation that is dependent on imports to meet the basic needs of its population of 2.7 million. The tension between countries of Gulf region has been persistent over years, but this crisis was trigged by statements of Sheikh Tamim bin Hamad Al Thani, the Emir of Qatar given to the official Qatar News Agency. The statement was brimming with praises for Iran and condemnation for President Trump’s hardline policy towards Tehran. The Qatari Government’s claim of it being “fake news”, has not impeded the UAE and Saudi Arabia from quickly acting on the news and imposing a blockage on Qatar.The OpportunityTo drive the possibility of reconciliation further through the mud, Qatar was notified with an ultimatum of10 days to comply with the 13-Point List. It consisted of demands which were to be observed in order forQatar to restore its diplomatic and economic ties with the other Gulf Countries. The list contains demandslike closing of Al-Jazeera and its affiliate stations, paying reparations and compensation for the loss of lifeand other causes, financial losses caused by Qatar’s policies in recent years, among other things. The de-mands consciously violate the sovereignty of the nations. The demands on the list, at their core, are highlyintrusive to the extent that it demands monthly audit of Qatar for the first year, after acceptance of the13-point List. Saudi Arabia remains adamant on the terms of the 13-Point List. The Middle-East has beenlong grappling with insecurity and terrorism within the regional politics. The hopes for reconciliation andrestoring diplomatic relations have further plunged into obscurity particularly with the imposition of the13-Point List.Whether the act of imposition of sanctions on Doha, for restoring peace, diplomatic relations and wrestlingterrorism, will be efficacious as deemed by the Arab Nations is the question of the hour. The answer to thisquestion is a resounding ‘NO’. The sanctions have had many unintended effects, which the Arab Nationsfail to take into account. The blockade has prompted the Gulf nations pick sides in the already partisanregion. Kuwait has been acting as the mediator between Qatar, who has been backed by Iran and Egypt Page 5

Libertatem Magazine - Edition 30 since the inception of the crisis, and the Saudi Arabia has been spear-heading and dictating the term of the blockade. To begin with, the aim with which sanctions in the International Community particularly by the UN are imposed and the propaganda with which the sanctions were imposed on Doha are at the opposite ends of the spectrum. Sanctions: A Cure or a Curse? A commonly accepted definition of the term “sanctions” refers to an unarmed, diplomatic means of eco- nomic coercion for persuading a nation to alter its behavior or to penalize that nation for violating international law, treaty or con- vention. However, it has also been used to mitigate and stonewall a situation which might culminate into an arm conflict. For instance, the sanctions imposed by the United Nations (hereinafter UN) on Iran in 2014 and North Korea in 2017 against the development of Nuclear Arms in the respective country, was an attempt to stall the proliferation of its nuclear and ballistic program and change their behavior concerning development of nuclear weapons. However, the Arms embargo imposed by UN on South Africa’s Apartheid Government 1978, was a conscious attempt to preclude any vio- lence and bloodshed by the Apartheid Government of the country. According to the UN Charter, a prerequisite for imposing sanctions on any State is that the UNSC identify the existence of a “threat to the peace” in the underlying conduct or situation as required by Article 39 of Chapter VII. It may then proceed to impose measures, economic or other, under Article 41 to “restore international peace and security”. Sanctions, on an international platform are an effec- tive tool for restoring, imbuing or maintaining peace, order and cooperation between the Nation-States. Hence, sanctions per se are not dreadful; however they do demand a tactful use. However, in the case at hand, the reason for imposing sanctions and the subse- quent demands put forth to lift the sanctions are both so unreason- able, that it is not inconceivable that the sudden and convenient urge to act against terrorism is a mere facade. The desire for polit- ical hegemony and power are the driving force behind sanctions. Truth be said, the wording, character and sweeping nature of the document signal a total defiance and blatant transgression of international law and the UN charter. Saudi Arabia and the UAE have masked the attack on Qatar’s sovereignty and independent foreign policy, under the garb of the demands. The demand for shutting down the Al Jazeera Network and affiliated stations is a conspicuous depiction of the lack of amenity of the Saudi Arabia with criticism and journalism which demands Government’s accountability. Another demand directs Qatar to pull the plug on Turkey’s military base in Qatar and end military cooperation with the NATO member. Qatar also happens to have a US military base, which maintains its biggest concentration of military personnel in the Middle East at Qatar’s Al Udeid Air Base. However, Saudi Arabia, in its demands; makes no address to any military base, other than the one of Turkey, one of Qatar’s allies. Its President Recep Tayyip Erdogan has condemned the intrusiveness of the of 13-Point List, and considers the “13-point list against international law”. Thus, the motive behind the sanctions is clearly to isolate Qatar from its allies and coerce it to accept the demands. In the larger scheme of things, there is a violation the sovereignty of the country as sanctions are intrin- sically coercive. To impose a sanction, Nations need pass act with constituent elements in its legislation. Thus, the critics of sanctions argue that it implies “infringement of territorial jurisdiction” as they involve the application of a State’s national legislation beyond its territories. In the case at hand, the demands for lifting the sanctions are directly violative of the basic principle of international law in that the national legislation is only territorial in character. Furthermore, precedents like North Atlantic Coast Fisheries have reiterated the paramount importance of this principle in safeguarding the sovereignty of Nations. Thus, the 13-Point List is a flagrant violation of Qatar’s sovereignty and is less likely to be accepted, thus, prolonging the instability and uncertainly in the politics of that region.Page 6

Featured StoryHowever, while deliberating on Qatar’s Crisis, it is imperative to consider the perspective of the citizensand residents of Qatar. In the grand scheme of things, while the Governments of the Gulf Countries vie forhegemony over the region and make polices for the same, it is the civilians of that nation that are exposedto grave predicaments and uncertainties. In order to get the ‘Eagle view’ understanding of the crisis, it isa folly not to consider the plight of the Qatari citizen and residents, who are thrust into the crisis. Again, amajor criticism of the imposing sanctions comes from the Human Rights perspective. Thwarting economicdevelopment and stalling food supply of a civilian population constitutes violation of their Right to Devel-opment, among others. Sanctions constitute human rights violations where the civilian pop- ulation of the targeted State is deliberately and indiscriminately at- tacked in order to change the political behaviour of the government of the targeted State. In that regard, sanctions, though permissible under international law, significantly impact the civilian population, amounting to collective punishment of innocent civilians. The ad- verse effects of such multilateral sanctions on civilians are unjustifi- able and must be condemned. For instance, in Qatar since the declaration of the economic blockade, the civilian pollution has flocked the Super Markets. The Corner- stone analyst put to light that many destitute Qataris make daily or weekly trips to Saudi to buy their groceries, as it is relatively cheaper. Also, import of foods and other goods is as high as 40% of Qatar’s food consumption. Therefore, Qatari residents will surely witness hunger and starvation either due to inflation or scarcity of food, in the near future. Also, after the fallout, all Qatari citizens in Arab Nations of Saudi Arabia, the UAE and Bahrain were asked to leave within 14 days. They had to uproot their lives and make arrangements to leave their jobs, business, land and family, without knowing if they will ever return, as the Arab Leaders vie for regional dominance. The social and economic ramifications have hit the civil population most severely. The crisis has taken a toll on the Share Index of Qatar, which has fallen by more than 7%.The Never Ending CrisisHowever, an end to the plight of the civilian population is nowhere around the corner as the crisis is farfrom being resolved. Saudi Arabia has been adamant on the 13-Point List, and refusing any negotiation ofthe demands, creating an impregnable deadlock. Thus, the imposition of Sanctions as a means to achievepolitical stability in the Gulf has proved tantamount to running a fool’s errand. The reckless use of Sanc-tions by Arab Nations has turned it into a tool which uses first causes plight to the citizens and then uses itas leverage in negotiation. This is detrimental to the spirit of International Co-operation. If vulnerability be-comes the driving force behind accepting terms of sanctions, the feeling of resentment and enmity amongthe Nations will find fertile grounds to proliferate. With sanctions imposed, the environment is less conge-nial for reaching an amiable solution with a win for both the sides.The Way OutIt is not possible for Saudi Arabia, to withdraw the Sanctions simply without hurting its integrity. It isrisking losing face in the International Community, until Qatar accepts at least some conditions of the13-Point List. Thus, the tactful negotiation is the need of the hour as sovereignty of one party and integrityof the other is at stake. The International community needs to step up to the task of mitigating the crisis,instead of equivocating. Even though US’ biggest concentration of military personnel in the Middle Eastare located at Qatar’s Al Udeid Air Base, which is located 20 miles southwest of Doha and is home to some11,000 US military personnel, US has hardly made any statements which would have a decisive impact.Thus, the sanctions in the Qatar Crisis did more harm than benefit and need to be condemned. The na-tions are not confused, but convinced that advantages of imposing sanctions outweigh any potential harm.Hence, the detriment done by sanctions in the Qatar Crisis can become a case in point for InternationalCommunity in understanding various contours and implications of economic sanctions. Page 7

Libertatem Magazine - Edition 30The Modi-Trump Meet:Beyond Hugs and HandshakesPrateek Mago Diplomatic Relationship The United States of America and India have been sharing a very sober diplomatic relationship since years. There have been critical junctures in the policies of both these nations after the Indian Prime Minister Mr. Nar- endra Modi’s visit to the States during the Obama Administration. However, 5 months ago, when Mr. Donald Trump was elected as the 45th President of the United States of America, foreign policy experts did foresee certain twists to come between the friendship of these two nations. On June 25th & 26th this year, the Indian Prime Minister visited the United States in furtherance of an invitation from the President of the country, Mr. Trump. This was the third official meeting between the two officials, and apparently dealt with a lot of key areas of concern. The initial five months of Trump’s administration do reflect his style of working, i.e., full of impulsiveness, un- predictable actions, and what not. Hence, Mr. Modi had a bigger burden on his shoulders prior to his visit as he was going to meet a person who is leaving no stones unturned to reverse the policies which were initially pro- posed and initiated by the Obama administration, for example, withdrawing from the Paris Climate Agreement,Page 8

Cover StoryTrans-Pacific Partnership Agreement, etc.Realistic ExpectationsThere were a lot of expectations from this meeting, especially from the side of the Republic of India. The mostimportant objective of the meeting was to start a fruitful and healthy working relationship with the States forthe next few years, so that the policies that are supposed to be implemented globally do have an Indian say.Also, the fact that there is a very evident difference as to how the Obama administration functioned and howthe Trump administration is functioning, it became more imperative to change the Indian approach accordinglytowards the American policies at a lot of important junctures. It was also important for India to bring Trump’sattention to a lot of other key areas, for example, countering terrorism in Pakistan and Afghanistan, the Chineseefforts to create a hegemony in the South Asian region, etc. It was expected out of Mr. Modi that he would beable to identify the USA’s stance on the above-mentioned areas and would be able to highlight which directionthe United States is planning to act. Lastly, it was believed that Mr. Modi will also be trying to take into confi-dence the private sector stakeholders with respect to the several policies initiated by him in India. Page 9

Libertatem Magazine - Edition 29 However, what we witnessed during the visit did not even take into account half of the above mentioned expectations, let alone implementing them. Still, it would be wrong to state that the visit remained completely unutilized as the biggest success, according to me from the visit, has been the designation of Syed Salahuddin as a ‘Specially Designated Global Terrorist’ by the United States. Syed has been serving as the supreme com- mander of a Kashmiri militant outfit namely Hizb-ul-Mujahideen, which is responsible for creating a state of terror and havoc in Kashmir. This comes as a serious blow to Pakistan with respect to the proliferation in the infiltration activities from their side. Strategic Patnership With respect to the second key area, i.e., the Chinese position in the South Asian region, it has been made clear by the statements from both India and the US that there is a dire need of certain crucial ingredients to tackle the situation such as Rule of Law, respecting the sovereignty and integrity of a nation, transparent develop- ment of infrastructure, etc. Giving special emphasis on the situation in the South China Sea, it was declared that the principles of freedom of navigation in international waters has to be respected and must be given par- amount importance, and that all the maritime and territorial disputes in this regard must be resolved peace- fully in consonance with the international law. This portrays that even the United States seconds the Indian policy in this situation. Defence has also been a major area of discussion between the two senior officials as United States is gradually becoming the second biggest supplier of defence equipments to India after Russia. There have been reports stating that a deal for the purchase of 22 Guardian Surveillance Drones is likely to be on the table soon, in addition to a possible partnership tie-up between the Tata Group and Lockheed Martin to manufacture the F16 aircrafts in India. This acts as a significant achievement for the ‘Make in India’ initiative. Personal Diplomacy in National Interest Apart from all the above mentioned areas, the talks primarily revolved around trade between the two nations. Both Modi and Trump reiterated on having a comprehensive and a significant review of the present bilateral trade policies and to propose certain policies which are in the furtherance of the principle of free and fair trade. We even witnessed Modi’s attempt to reach out to Trump’s family as the Indian Prime Minister cordially invit- ed Trump’s daughter Ivanka Trump to head a delegation of American businessmen and entrepreneurs to aPage 10

Featured Story Captions: (From Top Left to Bottom Right) 1. Donald Trump and Narendra Modi hug while making statements in the Rose Garden of the White House in Washington. 2. Trump and US first lady Melania welcomed the PM. 3. Pm Modi & Donalp Trump during the meeting at WashingtonGlobal Business Meet taking place in India itself in the late 2017.It can be easily opined that even though the visit could have been more fruitful, could have accomplished moreobjectives, it still turned out to be quite a favourable one for India, given the time of the year when the visittook place as it is definitely going to set up a stage for a robust and a resilient growth in the diplomatic relationsbetween the two countries. Mr. Modi has surely overcome the “hesitations of history”, something which heacknowledged while addressing the US Congress the last time he visited the States. He has also proved againthat sometimes it is the power of personal diplomacy which turns out to be the most feasible option. The visitdefinitely has signalled a renewed and rejuvenated desire to work together to bring peace and harmony in boththe nations. Page 11

Libertatem Magazine - Edition 30 All about the recent Farmers’ Agitation Debajyoti Saha In India, farming has become an unprofitable business, because of rise in input costs, and the inability of the government to provide minimum support prices to the farmers, among others. Above that, the semi-private form of economic management adds to the distress of the farmers, which is why the government intervenes, to prevent from distress sale. The government has requested Public Sector Banks (PSBs) to give loans to farm- ers at the prescribed rates. It has to waive off or write-off substantially, the loans given to them. The situation implies that agriculture in India is neither in the hands of private parties, nor under the con- trol of the government. The authorities prescribe minimum support prices for farmers, to enable them to negotiate the selling prices. In times of scarcity, farmers get handsome profits by selling the crops at higher rates than the Minimum Support Prices (MSPs). Now, the government has its own subsidiary, in the form of the FCI (Food Corporation of India), one of the biggest buyer of farmers’ produce. But the rates offered by it are not enough to compensate for the farmers’ cost of production. The farmers have to depend on the mon- soon season for the crops. The supply chain is quite underdeveloped; storage plants are incapable of storing produces in long-term; less number of markets/mandis for the sale of produce, and insufficiency of storage facilities for perishable goods like vegetables and fruits. The MNREGA (Mahatma Gandhi Rural Employment Guarantee Act) absorbs most of the labour in its own area, thereby obstructing the mobility of labour during the harvesting seasons. A particular method exists for ascertaining the Minimum Support Price. Once, Dr. MS Swaminathan, an eminent agricultural scientist, known for his role in the Green Revolution, suggested that farmers should get profit equal to 50% of the input cost. But, it would have been a burden on the exchequer. Therefore, by pro- viding loans at lucrative interest rates, the banks, through their agents, try to draw the farmers. But, thePage 12

News Storysituation worsens when they are unable to repay their loans in time. Farmer suicides have become the orderof the day. Recently, the Chief Minister of Uttar Pradesh, Yogi Adityanath, waived off farmers’ loans in theState, which is believed to have triggered agitations in Madhya Pradesh and Maharashtra. It is to be notedthat the issue existed at the time of former governments as well.The farmers’ agitation in the State of Maharashtra has grabbed national attention. The consequence of thesame is a sharp increase in the prices of fruits, vegetables, milk, etc. The principal reason for the agitation isa demand for loan waivers to be given to the farmers by the government. The agitation started with a fewfarmers from the district of Ahmednagar protesting against the Government. At that time, the Governmentmanaged to settle the matter by promising to waive farmers’ loans, which were around 30,000 crore rupees.Some of the farmer groups were satisfied with the decision, while others still continued the agitation. TheOpposition and the Shiv Sena have supported the agitation, while two prominent farmer groups, the Shet-kari Sanghatana, (founded by renowned farmers’ leader, late Sharad Joshi) and the Swabhimani ShetkariSanghatana, led by MP Raju Shetti, have now joined hands, which implies that the agitation might have adeep impact on the economy of Maharashtra. The Chief Minister, Devendra Fadnavis, had insisted for talkswith the farmers, and asked political parties not to use the opportunity against the Government. But, it isnot something new, as the farmers’ agitations for the waiver of loans have been around for a long time. Mr.Fadnavis insisted on a permanent solution to the same. The farmers’ demands included water to grow mul-tiple crops, crop insurance against any kind of natural calamity, minimum assured income against any pricefluctuations, among others. Having connections with political parties, the traders selling seeds and fertilisersused to exploit the interests of the farmers. Where PSBs are concerned, they are more inclined to provideloans to industrialists, in spite of high default rates. As of now, the reason they do not consider it favourableto provide loans to the farmers cannot be brought out. As a result, Co-operative banks, run by Societies,have gained importance.Till now, political parties are unable to devise strategies to mitigate the situation. Now, the groups have re-constituted their State-level core committee, by including prominent farmers’ leaders such as Shetti, Raghu-nanthdada Patil, Vijay Jawandhia, Girdhar Patil and independent legislator, Bachchu Kadu. It is hoped thatthese groups provide significant inputs in devising methods to meet the farmers’ demands. According to theCongress spokesperson of Maharashtra, the BJP government’s plan to waive off the loans will benefit only15 lakh farmers, instead of 89 lakhs, as stated by them.In Madhya Pradesh, five peasants were shot during protests on the highways. The protests were done bydumping milk, vegetables on the roads. The Home Minister, Rajnath Singh, stated the role of external forcesin instigating the protests; the State government is holding an enquiry regarding the same. Mr. Singh as-sured that the BJP government would not do anything to lose the confidence of the farmers in itself. Mean-while, in Haryana, 100 farmers were booked for blocking a highway during protest against the deaths.Even though both the BJP and the Congress are busy claiming credit for the unprecedented increase in theagriculture produce in Madhya Pradesh, which is approximately 11%, the reason behind the same is theNarmada Dam project, and subsidies provided by various governments from time to time. But, the cost ofproduction has been on a rise due to commercialization in the agriculture sector. The Chief Minister of Mad-hya Pradesh, Shivraj Singh Chouhan, had a discussion with a single farmer association, the Bhartiya KisanSangh, which, like the BJP, is affiliated with the Rashtriya Swayamsevak Sangh. The Rashtriya Kisan Maz-door Sangh, Kisan Union and three smaller farmer organisations insisted on continuing the protests till twodemands were met, which were waiving of loans and remunerative prices for farm produce. Tamil Nadufarmers staged nude protests in front of the Prime Minister’s office to get an assurance on the drought reliefpackage.It can be inferred that there is stalemate in the current situation. The political parties are trying to achievetheir ends by taking advantage of the opportunity at hand. They are exploiting the interests of the farmers,them being the most vulnerable class in the country. Ours has always been an agriculturist nation. The Cen-tral government is required to draft a long term plan in order to remedy the situation. It is also to be un-derstood that drafting a policy in a democratic country like India is not at all an easy job. The farmers needto cooperate with the authorities and not let themselves be used at the hands of middlemen or the politicalparties. The representation of the farmers is significant for the situation. ******** Page 13

Libertatem Magazine - Edition 30Implementation of GST By Nitya Jain Introduction “In this world, nothing can be said to be sure, with the exception of death and charges,” opined Benjamin Franklin ages ago. In the existing framework, the energy of aberrant tax assessment is part between the Central Government and the state Governments that they can require to be imposed in their separate Entries of the Seventh Schedule. The Constitution puts certain confinements on circuitous charges, particularly, the assessment at a bargain and buy of merchandise which are a piece of Value Added Tax. The idea of GST was first mooted in the year 2000 by the Vajpayee Government. To make this fantasy genuine, the Kelkar team on Fiscal Consolidation was constituted. Later under the present NDA government driven by Prime Minister Shri Narendra Modi, the Cabinet endorsed the Constitutional (122nd Amendment) Bill, 2014 on 18th December 2014. From that point, the bill was presented in the Lok Sabha on 19th December 2014. Finally, the bill has gone through both the houses. This Good and Service Tax is Value Added Tax (VAT) and should supplant the vast majority of the aberrant charges existing at the level of state and central governments. This will be a complete duty for all products and enterprises. In spite of the fact that a portion of the merchandise like unrefined petroleum, flammable gas, turbine fuel, fast diesel, instruction and liquor for human utilization are exempted, GST includes expensive products and enter- prises that are paid by the last customer while the retailer would be assuming praise of assessment he has paid while purchasing merchandise for retailing. The presentation of GST might subsume various Union and State charges supplanted with a solitary tax collection framework.Page 14

News StoryAt the Central level, the accompanying assessments will be subsumed: (a) Central Excise Duty (b) AdditionalExcise Duty (c) Service Tax (d) Countervailing Duty and Special Additional obligation of traditions. While theState Taxes subsumed are: (a) State Value Added Tax (b) Entertainment Tax (c) Central Sales Tax (d) Octroi (e)Entry Tax and Purchase Tax.Advancement of GST in IndiaThe One Hundred and First Constitutional (Amendment) Act, 2016 tries to change the assessment net topsyturvy, giving both the Center and the State the ability to make law on GST. The State Legislature will have en-ergy to make laws concerning the intra-state exchange and business while the Parliament will have particularenergy to make laws as for between state exchange and trade as has been given under the recently embeddedArticle 246A.To maintain a strategic distance from any contention of the authoritative energy of Center and State, the resid-uary energy of enactment under Article 248 is made subject to the recently embedded Article 246. In a similarinterest, both State and Union rundown stands altered to offer impact to the Substantial GST arrangementregarding energy to enact.Article 279A has been added to constitute the almighty GST Council, so a supra-government body can admin-ister the working, execution and smooth running of GST.It likewise accommodates constitution of Council within 60 days of the happening to the Amendment Act,2016. Article 249 stands corrected to give that if by 2/3rd dominant part passes the determination; the parlia-ment should make vital laws with deference to GST in national interest.Article 250 which accommodates Emergency energy of the Parliament to enact regarding the Entries in Statelist post of the declaration of Emergency stands changed to decide for the parliament to make laws concerningGST in a highly sensitive situation.In the light of the Constitutional 101st Amendment, the Union of India is committed to order enactments re-garding Integrated Goods and Service Tax (IGST) and Central Goods and Service Tax (CGST), while the Statesneed to administer concerning State Goods and Services Tax (SGST).Advantages of implementation of GST in IndiaThe advantages of GST administration are complex crosswise over different circles of the Indian economywhich is compressed under different heads particularly business and industry.• Simple consistence: A strong and far reaching IT framework would be the establishment of the GST re- gime in India and in accordance with that, all the citizen administrations; for example, enrolments, returns, installments and so forth would be accessible to citizens on the web and hence would make consistence simple and straightforward.• Consistency of assessment rates and structures: GST will guarantee that aberrant expensive rates and structures that are regular the nation over, in this manner, will expand the duty lack of bias and simplicity of working together, regardless of the place of working together.• Expulsion of falling: An arrangement of consistent duty credits all through the chain, and over the limits of state would guarantee that there is negligible falling of duties.• Enhanced Competitiveness: Reduction in exchange expenses would inevitably prompt an enhanced in- tensity for exchange and industry.• Pick up to Manufacture and Exporters: By eliminating Central Sales charge and subsuming real Central and State imposes in GST, it would diminish the cost of privately produced merchandise and ventures will build the aggressiveness of Indian Goods and Services in the global market and offer lift to Indian fares. The consistency in charge rates and techniques the nation over will likewise go far in decreasing the consistence cost.• Basic and simple to manage: Multiple backhanded expenses at the Central and State levels are supplanted by GST. Upheld with a strong IT framework would be less complex and simple to direct. GST is required to diminish the cost of accumulation of assessment incomes of the Government and will accordingly prompt higher income proficiency. Page 15

Libertatem Magazine - Edition 30 Consumers and GST Single and Transparent expense proportionate to the estimation of products and ventures: Due to various roundabout assessments on us being imposed by the Center and State, with fragmented or no info charge credits accessible at dynamic phases of significant worth expansion, the cost of the most merchandise and enterprises in the nation having many concealed duties. Under GST, there would be just a single expense from the producer to the shopper, prompting straightforwardness of duty paid to the last buyers. Alleviation in general taxation rate: Because of productivity additions and anticipation of spillages, the gen- eral taxation rate on most wares will descend which will profit purchasers. Concerns Related to GST GST and Tectonic move in Center-State Relations: The new GST administration proclaims a structural move in Center-State relations. By bringing together the arrangement of circuitous tax collection, it has prompted a worry in a few quarters that the new tax collection administration will undermine the gov- ernment structure of administration. Various State Governments have raised their worries and misgivings about the effect of GST. GST and Apprehension of Manufacturing States: The other zone of concern is that there is tremendous dif- ference between the assembling states and the buyer states. The assembling states are less in number while purchaser states are more. Hence, the greater part of devouring states may vote against the enthusiasm of assembling states, in this manner bargaining the assembling quality of those states and therefore invalidat- ing the very point of GST. GST’s effect on the Socio-Politico-Economic system of States: Each State picks its own State Government in the light of its extraordinary political and financial plan. Presently for the sake of consistency and accom- modation, if GST chamber bargains the self-rule and limit of the states to convey on those motivation, at that point the entire soul of government administration will take a secondary lounge. GST: The Way Ahead The genuine trial of the adequacy of the GST might lie with “We, the general population of India”, for the natives should choose the destiny of this sui generis administration. A perfect situation is conceivable just when the tax assessment framework in a nation is unbiased in application, which means in this way, the duty ought to be a uniform rate of the last retail cost of item, paying little attention to the production net- work courses of action for its assembling and dispersion.Page 16

News StoryLikewise if all political gatherings, whatever their belief systems, can transcend their parochial concernand work towards the objective of a solid, joined together and monetarily prosperous India, for the hugenumber of everyday citizens pondering destitution, ailment, lack of education, abuse and debasement sinceautonomy, the new GST framework can be guaranteed achievement. With the progression of time, the im-perfections or the provisos of the framework can be concealed or enhanced. The less created states wouldbe pulled up and value can be set up between the diverse ranges of the nation. This would be the correctstride toward the “Welfare State “objective of our Constitution, in view of vigorous economy and givingequivalent chances of development and shield to all nationals.“Tax assessment ought not be an agonizing procedure. There ought to be equivalent adjust and tolerance in choosingcharge structure. Through GST administration, Government is attempting to gather assess like a bumble bee, whichsucks only the perfect measure of nectar from bloom so that both can survive”.ConclusionIt can’t be denied that the Amendment Act, 2016 has been passed after incredible challenges and substan-tial number of rounds of arrangement with all partners. In the meantime it will be off base to state thatthe GST will have a smooth sail from here onwards. The aim behind the change is an honorable one and ifeffective, will brag the economy for good.In any case, it is too soon to fathom at this stage. The present Amendment act, 2016 may have disengageditself from any established test. However, the IGST, CGST and SGST should bear the nearby assessmentof the Courts as these are the administrative instruments through which GST will be executed in its actualsense.In the due course of time, the Constitution and the power given to GST Council brings up major issuesabout shielding and self-rule of States and infringement of Central Government into State undertakingsand the elected structure of the country.In a nation like India where distinctive States have been administered by various political gatherings withdiverse motivation and belief systems, it will be hard to blend any uniform plan and that too by a Councilwhich is seen as being twisted in the support of Center and a voting framework where the states will getthemselves detached over their individual concern.It is justified regardless of the hold up to perceive how the Central and the State Governments managethese issues in the upcoming circumstances. Page 17

123:Libertatem Magazine - Edition 30A March MuchNeeded Shresth Vardhan The recently concluded budget session, Lok Sabha passed the 123rd Constitution Amendment Bill (by insertion of Article 338B) which sought to provide a constitutional status to the OBCs by ensuring their rights through creation of an OBC Commission (N.C.S.E.B.C - National Commission for Socially and Ed- ucationally Backward Classes) and dissolving the prevailing National Commission for Backward Classes (N.C.B.C). This is claimed to be an effective move towards fulfilling the agenda of welfare. This bill which seeks to provide a constitutional status to the Commission is also said to weave within itself a large section of the Muslim community (Kahar, Kumhar, Gujjar, Jogi, Mali etc.) to strengthen this yarn of social justice thereby declaring them as constitutionally eligible to benefit themselves from the prevailing welfare ma- noeuvres of the government. Development of the Bill The Parliamentary Committee’s suggestions and recommendations to amend the Constitution establish- ing this commission are well accepted. A question was nevertheless posed which demanded a categorical explanation as to why was there a parallel Central and State OBC list in existence unlike the SC/ST list which is uniform for both states and the Centre? To the dismay of many, the argument asserted was that the 5-year plans have already benefited the backward classes and hence there is no such need of a uniform list. This without a doubt was not a satisfactory answer and took no time to be found erroneous. Subsequently, the government marched forward in this direction and was successful in formulating a bill which seeks to accord a constitutional status for the OBC Commission. Thaawarchand Gehlot the Social Justice Minister introduced the bill and the same was passed in the Lok Sabha on 10 April 2017, which is also the birth anniversary of Babu Jagjivan Ramji. A constitutional amendment to take effect would require 2/3rd approval of both houses of Parliament and a subsequent ratification by 50% of the state assemblies. Having been said that, when on April 11 the bill was sent to a Select Committee for the approval in RajyaPage 18

News StorySabha, the behaviour of the opposition parties especially that of Congress and BSP was adverse, which ul-timately stalled this idea, exposing their attitude towards this initiative. [The Indian Express, Rajya Sabha:Opposition stalls bills on OBC panel, traffic laws, 12th April 2017]Indira Jaising, Senior Advocate at the SC while talking about this step of the government said - “making it aconstitutional amendment means that it cannot be amended by a simple majority in Parliament. More signifi-cantly, the earlier provision says that the President may appoint whereas I am presuming there is no choicehere and it will be a permanent commission in place, similar to the SC and ST (Commission)”. [Livemint,New OBC commission to get constitutional status, 24th March 2017]It was in the case of Indra Sawhney v. Union of India (Mandal Commission Judgment of 1992), that the Su-preme Court adjudged and held -“it was not invalid to identify a group by any criteria like occupation, social, educational or economic situations. Socialand educationally backward class under Article 340 have to be construed in a limited sense. They do not have the widesweep as under the fundamental right guaranteed to backward classes in Article 16(4).”That is to say if earlier a community was to be incorporated in the state list, it was for them to make a repre-sentation before the state government following which, it ought to have been straightforwardly settled wheth-er that group is backward or not. On the off chance that these steps are being complied with, then at thatpoint the state Backward Classes Commission would make a suggestion to the government of the state. Thissuggestion was usually binding on the state government on the premise of the above stated landmark judg-ment (Indra Sawhney) by the Supreme Court. Juxtaposed, if in the current scheme a community needs to beincluded in the list, then the representation has to be made to N.C.S.E.B.C (National Commission for Sociallyand Educationally Backward Classes) at whose exhortation the task would follow up. It would be thereforedifficult to find a fault in the decision by the parliament which is always open to public scrutiny.Up until now, the N.C.S.E.B.C was a mere statutory body with meagre functions as to advise the governmentin respect of inclusion/removal of castes and communities from the lists and to hear complaints of over-inclu-sion or under-inclusion of any backward class in the existing quota. A former member was also of the view: -“We did not have powers to hear complaints from OBC members like the SC/ST commissions did, and in that sense, aconstitutional authority will ensure it has more power. The government has opted for a new body altogether instead ofgiving NCBC more powers; more details will emerge once the bill is tabled in Parliament.” [Livemint, New OBC com-mission to get constitutional status, 24th March 2017]Thus, with the grant of the constitutional status, it will be at par with the National Commission for ScheduledCastes and Schedule Tribes.What constitutes the New Commission:This new commission will comprise of a chairperson, a vice-chairperson and three other members. The func-tions of this commission would include protection, development and welfare of the backward classes andalso helping them by the means of the inherent powers under the aegis of Articles 16(4) and 15(4) of the Con-stitution. The tasks entrusted to the commission as per article 338B (5) does not include advisory role for thecommission. With its avatar, the Constitution could give it more teeth. The Bhartiya Janta Party has furtherplanned to conduct and host a number of conferences across the country to make this a successful spell and toalso enlighten the backward classes about their rights and entitlements.Interestingly, this initiative by the government got struck at a time when the Jats through their agitation weredemanding OBC status for the community. Be that as it may, this decision surprisingly creeped up as anaggressive outreach to politically crucial other backward castes amidst the time frame that witnessed a winof BJP in the Uttar Pradesh wherein OBCs assumed a key part amongst the voters. Unfettered by being in aprolonged period of power position and after various suggestions and reports by Kalelkar Commission (1955)and the Mandal Commission (1980), the Congress did not take any substantial step on this path.It has been 70 years now since the Independence of India but this is for the first time that any government hastaken such a holistic decision aimed for satisfying the needs and interests of the regressive classes. It is, alongthese lines, that it is being seen as an inferred affirmation of this social arrangement by BJP. This is a satisfac-tion of the long-pending interest of the government by giving social equity to the OBCs. Page 19

Libertatem Magazine - Edition 30Sahayak Systemin Indian Army By Shreyan Acharya The tradition of branding citizens for criticising the elite forces, such as the Indian Army, has become the norm of the day. Anyone daring to raise an opinion against the armed forces would be subjected to the fury of the self-proclaimed holders of nationalism. But, I dare to make an attempt to raise a critical issue pertaining to the most reputed armed forces in the world. The constant politicisation of the armed forces has brought us to a place where any reasonable loophole is overshadowed under the context of the self-built notion of “to be a true Indian, one must respect the Indian Army”. It is sometimes felt that a particular group of the country has suc- cessfully managed to evolve the litmus test of patriotism/nationalism. And, that litmus test is dependent upon the respect for army. Sooner it would be viral on the social media as #Respectarmyorantinational. But, let us try to take ourselves ahead of this petty nationalism and exercise the power of free speech which has given us fairly equal opportunity to highlight the shortcomings of the most elite institution of the country. I believe that Army, just like any governmental institution, is subject to public criticism, and by stating that I am not undermining the sanctity and sacrifice of the jawans as there is a growing fear of falling prey to wrong interpretations. We have all respected and valued the sacrifices made by our jawans, but how many of us are aware of the discrimination that they are subjected to by their own superiors. The indication is to the videos surfaced on the social media recently about the soldiers who are made to do domestic work or menial work by the superiors under whom they are appointed as sahayaks. The suicide of a jawan caught the attention of the nation ignorant of the discriminatory system prevalent inside the institution. The people were caught with surprise who earlier blindfolded the window of reason by discarding any scope of genuine criticism.Page 20

News Story Understanding the Sahayak System The Sahayak system or the buddy system can be understood as the man is always seen with the officers. The personnel is not a civilian servant, but a trained combatant who is trained to fight in the battle. The appointment of a sahayak is with the significance of assisting the officers as an entrusted friend to carry out other preparations while the officer is busy in other functioning. Taking a small example, a sahayak is entrusted with the duty to take care of the weapons of the officer or such other related activity. The Sahayak system is not an Indian concept, but it traces its roots back to the colonial era. The system actually emerged from the British Raj, and since then it is being carried out in the Indian Armed Forces. The Indian Air Force and Indian Navy do not have such a system, and it is only prevalent in the Indian Army. With the passing of time, the sahayak system has been questioned regarding its credibility. It is often seen to be a system having colonial roots not having any relevance in the independent India. The Parliamentary Standing Committee on Defence also presented its opposition to the sahayak system in strong words. But, the question arises, despite the criticism that why has it suddenly become the cen- tre of all attention in recent times in the environment where calling anything against the armed forces is considered to be anti-national? Abuse of Power The answer to this lies in the recent videos posted by the jawans of the armed forces stating their misery which also led to the suicide of one of the jawans. The jawan clearly indicated the viola- tion of their personal dignity by their engagement into the menial works in the household of the officer. It is true that no jawan is under any compulsion to do any of the household or personal works of the officer such as washing of the cars or taking out their dogs for a walk. But, the lack of redressal mechanism system and psychological fear of the ranks often makes them do things that are not a part of their job portfolio. After taking adequate understanding of the system, I have few things in my mind. If we say that any pro-separatist statement or any statement de- meaning the soldiers of the army can be the root cause for demoralising jawans then, does a system of ‘silent slavery’ not decrease their morals or does it not have a huge psychological im-pact upon the spirit and morale of the soldiers. A Sahayak to my understanding means a buddy or a helperbut not a servant. But, once a sahayak is appointed then he is treated as the servant of the officer undertakingmenial works. Such a strong statement is based upon the interpretation of the videos surfaced on the socialmedia. The Right to Personal Liberty, the famous fundamental right upholding human dignity has failed inits outreach to the sahayaks. The duties undertaken by them can be understood to be in complete violation oftheir personal dignity and self-esteem.Safeguarding the rights of SahayaksThe practise of human-to-human exploitation is not a new phenomenon, rather it has been in practice sincethe colonial period. But, thanks to the technological advancement, the social media is used as a strong weap-on to bring the miseries of the soldiers into the public domain. This brings me to another question that whya need was felt by a jawan to come in public, risking his own career and making himself vulnerable to sev-eral inquiries? To my understanding, the core reason for such an outreach can only be the lack of grievanceredressal mechanism. Or what else it could be? It may also be due to the laidback attitude of the officers tokeep it in existence. The videos in a way highlighted the hidden problems and brought them into public butthe attitude adopted by the senior members of the armed forces lacks the intention to provide a concretesolution to this menace. The possibility of finding other ways for its replacement or the appointing of ci-vilians as sahayaks does not entirely fulfil the purpose. If on many junctures a voice has been raised for itsabolition and if this government is so committed to the cause of the army jawans, then a strong guideline ordecision must soon be taken into effect.The armed force is not all about fighting the enemy, but it is also an institution which throughout the periodhas managed to retain the faith of the people. And to maintain the same faith, it is the need of the hour tostart with reformation from within. This would enable them to win the trust of their critiques and simultane-ously retain the self-esteem and dignity of their soldiers which would work as a psychological booster to thejawans and instil a sense of belongingness which would make them feel proud to be soldiers of the IndianArmy rather than mere servants of the Indian Officers.“A high-spirited and committed soldier is thousand times more reliable than the one with low morale andlack of self-esteem” Page 21

Libertatem Magazine - Edition 30 Brexit And Rise of The Right Wing By Shashwat Tiwari Rise of Right Wing Over the past few years there is growing discourse about the rise of the right-wing populism in the world and the consequences it will bear. Although the distinction between these political ideologies was first done during French Revolution (1789), the so called “rise” of these welfare-chauvinists began in the latter half of the twenti- eth century both in the Europe and the world over. Much attention has been paid to the resurgence of the right wing parties, especially in the European coun- tries like Switzerland, Poland, Belgium to name a few. The evident reasons can be the deterrent effect of the terrorism leading nations to follow protectionist policies or the detrimental effect small economies have been witnessing due to globalization which has led to the rise of the conservative parties in most of the developed countries of the world. Whether and how effectively these right wing parties will deal with the problems of their countries and the world at large is the question we need to ask. Snap Election On 18th April Prime Minister of the United Kingdom declared snap polls in 650 constituencies across four countries, which were earlier scheduled in 2020, creating a situation of turmoil in UK’s polity. Many regard- ed May’s decision to call the elections a bid to strengthen her stand in Brexit negotiations with the European Union. What was thought to be the ‘master stroke’ couldn’t yield her a strong position, as indicated by the poll ratings that she could be on a course to win a landslide majority on a par with 1983 majority of 144 won by Margaret Thatcher. The results came as a big shock because the Exit polls declared a landslide victory for the for the conservatives but the result was a hung parliament, no party winning a complete majority. Although there was no complete majority for the Conservative Party, there still remains an ambiguity on the causes and consequences of the decision but the major reason which is quite apparent remains the Brexit negotiations. In an article Dan Roberts of the Gaurdian states the reasons for the snap pools to be “May’s surprise decision to call another election was intended to raid deep into opposition Labour territory and bolster her narrow major- ity of MP’s in time for forthcoming Brexit negotiations”. Clearly this action of the PM was uncalled-for and the conservatives have shot themselves in feet. The PM now finds herself in a situation which she wouldn’t have anticipated, her party could only manage to get 321 seats bring it down by 13 seats. The Labour Party on the other end has a plus thirty one sign in front of their flag, Jeremy Corbyn is now the twitter of the town, not only he led a fantastic campaign, he managed to shift the debate to social issues. Appar ently people chose the songsPage 22

News Storyof income redistribution and healthcare services over the story of “strong and stable” nation.The CampaignThe headline of an article in the Independent read “Jeremy Corbyn goes form no-hoper to crowd-puller,”apparently the synopsis of the whole campaign led from both the ends. On the one hand, Theresa May calledthe elections when she was riding high on the opinion polls and was quite confident to gain a majority whileon the other hand, the 68 years old peace campaigner from the Labour Party changed the whole scenario bypromoting anti-capitalist policies.A radical change in Britain’s fiscal policies: increasing corporate tax and public spending on education, health-care etc. Among the other major changes was a 250 billion pounds fund for investment in infrastructure over aten year period. Economists expect an increase in bond issuance, with the effect of increasing borrowing cost.The other major issues apart from Brexit and fiscal changes are:1. Security - Two major terrorist attacks took place during the campaign, with both the parties arguing about the best way to prevent such events. Conservatives majorly focused on global co-operation to tackle Islamist ideology and reducing the use of the Internet by terrorist groups. Corbyn criticized cuts in police numbers under the Conservative government and declared increase in police recruitment.2. Tuition fees - Labour is thought to have attracted a significant number of student voters with its pledge to abolish tuition fees and bring back student grants [Labour stuck in EU muddle as Jeremy Corbyn and colleagues fail to agree].3. Scottish independence and the future of the UK - The proposed referendum of Scottish Independence was also thought to be one of the issues that will influence the elections.[Scottish parliament votes for second inde- pendence referendum]The ResultsThough the predictions and exit polls clearly indicated a Tory majority, the political analysts were still tryingto figure out the ramifications that a hung parliament may produce or what might happen if the ConservativeParty fails to acquire a clear majority in the coming polls. Many analysts suggested that the only option leftwith both the parties would be to lead a government without commanding a majority and depending on theopposition for advocating their stands on different issues including Brexit. After the declaration of results on9th June, it was quite evident that there was no absolute majority for any party though the Labour Party hadthe last laugh with a substantial increase in their seats. The result gave rise to new stalemate in the parliament.Failure to win an outright majority left May and Corbyn clambering to look for a partner for a new govern-ment. Incumbent PM has the right to take the first call for forming a coalition, though her firm stance on Brexitleave very less chances of finding a suitable partner.But the latest news confirms that the Conservative Party led by Theresay May will form a government withthe support of the Democratic Unionists. She confirmed the decision after visiting the Buckingham Palace. Shesaid, “only her party had the legitimacy to govern despite falling eight seats short of a majority”.[ Elections2017, BBC News PM May promises to provide ‘certainty’,] DUP leaders stated that they will work in coordi-nation to achieve the greater good and will explore the possibilities of bringing stability to the nation. Afterthe confirmation PM declared the top five cabinet posts which included Defense Secretary, Chancellor etc.The Impact On IndiaAfter the results were out there were much speculations about the India-UK ties, because there were differentopinions across the spectrum for instance, Labour Party Leader has been a critic of Modi’s fiscal policies andhas raised serious concerns about various humanitarian issues in India. Since the inception, the conservativeparty has a genuine desire for better relations. Even though the Conservative manifesto pledges to strengthenties with “Commonwealth allies” and build a trading relationship with them but there have been some issueswhere the two countries are likely to be on the same page, immigration and refugee issues being some ofthem. The Labour Party might have had more inclination towards the humanitarian issues.“The biggest potential detriment of bilateral relations is Britain’s future relationship with the EU, on which both theparties had different views”.But now since the Conservatives will lead the Brexit negotiations the advantages of a hard and clean breakfrom the EU will put the burden on Britain to establish better relations with India and other fast growingeconomies thus giving an upper edge to our country. Thus, there is possibility that the newly elected Conser-vative-DUP led coalition will strengthen the ties with UK and provide greater benefits. Page 23

Libertatem Magazine - Edition 30TATA-Mistry CorporateConundrum Drags On… Vaibhav Sharma The boardroom battle between TATA Group and Cyrus Mistry which began with the ouster of the latter from the Chairmanship of the Group on 24th October, 2016 has dragged on ever since. The tussle has seen an array of allegations being made from both sides over the management of the prestigious conglomerate. It led to removal of Cyrus Mistry from the Board of Directors of some of the TATA companies and finally on 19th December, he decided to quit from Board membership of remaining compa- nied as well and decided to pursue the matter legally. Mistry had filled a contempt petition before the National Company Law Tribunal (NCLT) against Ratan Tata and other directors of the TATA Sons alleging the violation of an earlier NCLT order dat- ed 22nd December, 2017. The petition was dismissed by the NCLT on 17th January. The feud got further embroiled when the firms owned by Cyrus Mistry filed a case against TATA Sons Leadership in the NCLT for mismanagement and oppression of the minority shareholders. Since then, various turns have been taken by the imbroglio including appoint- ment of new Chairman N Chandrasekaran, dismissal of petition by NCLT, appeal against the dismissal by the Mistry firms and 100 days of N Chandrasekaran being at the helm of affairs and speculations that TATA Group is keen to buy Air India which the government is thinking to disinvest in the near future. The present article tries to magnify various points which construe the larger picture of this mega power strug- gle in the corporate sector. Dismissal of petition by NCLT The petition filed by the investment firms of Cyrus Mistry against the TATA Sons before NCLT on the charges of mismanagement and oppression of the minority shareholders was dismissed by the Tribunal in April, 2017. The petition contented that the TATA Group former head Ratan Tata had been working as a shadow or ghost director and it had led to oppression of the minority shareholders. The petitioner had sought a waiver of the rules pertaining to minimum shareholding for the admission of the said petition. The matter related to the Section 244 of the Companies Act, 2013 which makes it mandatory to hold mini- mum of 10% of the shareholding in order to a petition on the charges of mismanagement and oppression of the minority shareholding. It is pertinent to mention that the Mistry firms owns 18.34% [The Hindu Busi- ness Line, Setback for Cyrus Mistry as NCLT rejects waiver petition] of the equity in the TATA Sons, but when the preferential shareholding is taken into consideration the holding of the petitioner is only 2.17%.Page 24

News StoryIt is much below the stipulated minimum shareholding of 10% for filling such a petition as per thelaw. The petitioner had also sought a waiver of the condition given in Section 244 in order to ad-mit the petition before NCLT. The Tribunal ruled that the petition was not maintainable becausethe waiver sought from the shareholding condition could only be granted in the cases of fraud,misappropriation of the assets, breach of the Articles of Association (AOA) or fraudulent pay-outfrom the company funds.The NCLT order while rejecting the petition said that the waiver from the conditions can only begiven in exceptional cases and the present petition did not constitute a fit case for the same. Theorder also mentioned that the petitioner has failed to show that how the economic interest of theMistry firms have been damaged by the action of TATA Sons. The presiding member of NCLTB.S.V. Prasad called the litigation by Mistry’s firms a ‘proxy litigation’ because the petitioner hadfailed to raise the matter at the earlier instances in spite of the fact the allegations pertain to theperiod when Mistry was still the Chairman of the TATA Group before his 24th October ouster.Mistry’s appeal against the NCLT OrderThe investment firms controlled by Cyrus Mistry filed an appeal against the NCLT order dismiss- Page 25

Libertatem Magazine - Edition 30 -ing their petition dated 17th April, 2017. In the appeal before the National Company Law Appellate Tribunal (NCLAT), it was pleaded that the NCLT should first decide whether the petition seeking relief from oppres- sion is maintainable or not. It also sought that the waiver of the 10% [FE Bureau, Financial Express, Now, Cyrus Mistry appeals to NCLAT after NCLT dismissed plea] shareholding condition should be granted to the petitioner. The NCLAT admitted the appeal and stated that the hearing on the appeal would begin on 3rd July and would continue till 7th July. Though the legal luminaries are divided on the issue of the waiver of the 10% condition in the present case, but it is going to be an uphill task for Mistry to make up a strong case before NCLAT and attain the sought relief against the TATA Sons. It will be inter- esting to see what path the legal battle transcends in the coming days. N Chandrasekaran as Chairman – 100 days Assessment In admits the legal battle between Cyrus Mistry and TATA Sons leadership, the appointment of N Chandrasekaran as the new Chairman of the TATA Group was a critical one to improve the corporate standing of the conglomerate. The standing of the TATA Group took a serious hit with the unfolding of this mud-slinging controversy which shook the entire corporate sector with its unprecedented levels of power struggle. N Chandrasekaran took the charge of the TATA Group from 24th February, 2017 and since then he has tried to stabilise the affairs in the conglomerate. If the economic assessment of the 100 days of new Chairman is done, the fortune of the TATA Group has revived to a great extent. The total market capitalisation of the TATA Companies had dropped about 1.3% to Rs. 8.6 trillion from Rs. 8.71 trillion since the removal of Cyrus Mistry in October[Live Mint, N. Chandrasekaran planning merger of smaller Tata companies]. The new leader has improved the economic position to about Rs. 8.74 trillion as the market capital has increased by 1.6%. The stable and robust leadership under N Chandrasekaran has catapulted the TATA Group to growth trajec- tory from its reeling fortunes due to the prevailing power tussle. The new Chairman has instructed the Chief Executive Officers (CEOs) of the TATA Companies to focus on profit making. In what is being dubbed as a ‘pruning exercise’, the conglomerate is trying to focus on profitable businesses and is conscious of any money splurging ventures. He is believed to have adopted a ‘Cluster approach’ in which all the TATA companies have been grouped in six-seven clusters for better management of the resources and financial prudence. The main aim is to create synergy between the companies to optimise the revenue generation. A reconstruction of the TATA Motors is being pursued with cost cutting leading to an estimated lay-off of 1500 workers. He has successfully handled the precarious case of TATA Steel and has focussed on reducing the production costs along with the sale of its loss making subsidiaries. The good work done by the new Chairman seems to have caught the attention of the TATA Sons as well and they have lent him full support for the same. In a move that is being seen as a vote of trust from the TATA Sons N Chandrasekaran was also appointed as the Chair- man of Tata Global Beverages Ltd. (TGBL) on 3rd July, 2017. He seems to have full confidence of the Board and is set to continue to guide the TATA conglomerate to greater heights in times to come. Changes in TATA Group cross holdings The TATA Group is witnessing major changes in the corporate structure of the companies in a bid to im- prove its financial health. Amongst the changes, one of the major revamp is being pursued in the form of the changes in the TATA Group of companies cross holdings. The TATA conglomerate is one of the biggest and the most diversified entity manufacturing a wide array of products from common salt to motor cars. In an attempt to prune the Group to make it easier to manage its affairs, TATA Power is likely to witness changing in its cross holdings. The phenomenon of cross holdings is associated with big corporate groups and helps in supporting sister companies in the time of need. In the contemporary times of super specialists, the ‘cross holdings’ is regards more as a liability than an asset and the trend is to limit the expanse of Group to improve revenue generation.Page 26

News StoryTATA Power is one of the biggest companies of the TATA Group and holds stakes in seven TATA com-panies including TATA Communications, Voltas, etc. TATA Power is considering selling off its non-coreassets. The move is also being seen as a reaction to the Mundra Plant verdict of the Supreme Court wherethe Apex Court ruled against the compensatory power tariffs. It is estimated that the TATA Power could generate more than Rs. 1100 crores by the sale of the cross hold- ings. The TATA Power is also mulling a change in the coal source arrangements for its Mundra Ultra Mega Power Plant in order to improve its viability. It is expected that these changes will improve the fortunes of the company and will lend support to the entire TATA Group as well. Purchase of Air India by TATA? The Air India is one of the premier public sector airline sin the Indian aviation market. In spite of the years of experience, the air- lines are facing stiff competition from private airlines. Its share in the domestic market has reduced from about 35% a decade ago to about 14% in 2016. In the present times, it has become a ‘white ele- phant’ for the government and is under a debt of about Rs. 52,000 crore even after crores spent by the government to change its fortunes. The interest burden of about Rs. 4,000 crore ensures that it has been running in losses since 2007. The NITI Ayog has recom- mended to the Union Government to privatise the airlines in order to ameliorate its financial status. The union Government is expect- ed to form a Group of Ministers (GOM) to decide upon the ques- tion of disinvestment. The GOM will finalise the intricacies of the disinvestment and the quantum of sale to revive the ailing airlines. In the market rife with speculations regarding the impending sale of Air India, it is being said that TATA Group is also keen to buy the airlines. It is interesting to note that the TATA Airlines which was started in 1932 by J.R.D. TATA was nationalised in 1953 as AirIndia by the Government. The fact that now the TATA Group is trying to bid for the Air India stake wouldseem like an anti-thesis in the light of current TATA-Mistry grapple for power.The new Chairman N Chandrasekaran has provided a robust and poignant leadership to the conglomerateand has been instrumental in improving the Group’s financial status. The purchase of Air India by TATAGroup could prove to be a ‘shot in the arm’ for the TATA Sons to improve its global standings and corpo-rate stature. Amongst one of the greatest hurdles that stand in the way of TATA’s acquisition of Air India isthe keen interest shown by IndiGo in the purchase. It is useful to mention that IndiGo is the largest playerin the domestic aviation segment with total market share of about 40% [Reuters, Air India privatisation:IndiGo, other airlines show interest in buying airline stake ]. It has also submitted a formal letter of interestwith the civil aviation ministry regarding the same. Other than IndiGo, more than a dozen internationalplayers are also expected to bid for the disinvested share of Air India to acquire presence in largest growingaviation market in the world. If TATA Group somehow, acquires Air India. It could prove to be a potentialgame-changer for the Group and could usher an era of financial stability and growth.The Road Ahead…The current status of the TATA-Mistry power struggle seems to be complicated with Mistry’s appeal beforethe NCLAT against the dismissal by NCLT scheduled to be heard in July. The verdict of Appellate Tribunalcould have grave ramifications for the TATA Group leadership. The chances of Mistry securing a favour-able decision look bleak but even in that situation, an appeal to the Supreme Court would lie with theaggrieved party. It has proved to be a boom with most of the companies registering a financial turnaroundbecause of cost reduction and robust financial prudence. The changes in the cross holdings of the TATACompanies is bound to propel the Group to a leaner structure and being better attuned for revenue gen-eration. Whether the TATA Group is able to acquire Air India or not would depend upon final agreementbetween the Government and the bidding corporates, but it could be dubbed as a ‘splendid comeback’ bythe TATA Group from its ailing corporate standing of January, 2017 to staking a claim to acquire the India’sthird largest domestic airlines. Page 27

Libertatem Magazine - Edition 30Dumb Internet: A wayforward to net neutrality Chahat Mantangi Imagine that you are a start-up company, you obviously want your business to bloom and be easily acces- sible through the internet. After a while you figure out that you do not pop up in the Google search results and it being the most widely used browser, this will be a huge issue because you want people to know you, to try you out but there is a big giant mountain standing between the customers and you, this mountain is actually Google’s own brand in the same field which it promotes to an extent where the top search results are from there. When we think from the perspective of a start-up or a not very well established business this is clearly unfair and snatching away from a platform from people. “Google abused its market dom- inance as a search engine by promoting its own comparison shopping service in its search results, and demoting those of competitors”. Antitrust laws and how it works. EU’s commission works on the same issue, it’s anti-trust laws are made to keep a check on all the compa- nies that they compete on the basis of their merits and innovation and not use anticompetitive measures to do the same. The Commission applies EU competition policy by bringing cases against companies from the various industries which have a large sale or whose products and services have a direct impact on the consumers who use them. According to an analysis of around 1.7 billion search requests, Google’s results systematical- ly and consistently were giving prominent position to its own comparison shopping service to the detri- ment of rival services. This prominent placement resulted in their shopping service running well ahead it’s rivals and was far more successful.Page 28

News StoryWhat is competition policy?A competition policy is basically about making sure that companies compete with each other on an equalfooting – on the basis of their products and prices – with no unfair advantages. Why is competition policyimportant for consumers? When companies are forced to compete with each other, consumers win. New,better products are developed and the prices go down because everyone wants to sell more. These defini-tions mentioned in the EU’s website direct us towards the importance of competition and how essential it isfor both the consumers and the sellers or manufacturers.The decisionEU hence decided not to compromise on this issue and decided to slap Google with a fine of 2.4 BillionEuros. The commission’s fine of €2,424,495,000 was said to take into account the “duration and gravity ofthe infringement”. It was based on the revenue that Google has produced from this comparison shoppingservice in the 13 countries where the illegal move occurred.This penalty is the highest ever given for an accusation of distorting the market. The commission said itwas leaving it to Google to determine what alterations should be made to its Shopping service rather thanspecifying a remedy.The search results that we are talking about are labelled as being sponsored which shows that the adver-tisements are the ones which the sellers have paid for to be made to pop on the results. But this neutralitywill be a big issue for Google as it will have to find out new ways of actually earning income as a hugeamount if it’s revenue comes from its advertising services.What the authorities sayConcluding I would like you to have a look at the perfectly put words by Commissioner Margrethe Vestag-er, in charge of competition policy as to where Google went wrong, “Google has come up with many innovativeproducts and services that have made a difference to our lives. That’s a good thing. But Google’s strategy for its com-parison shopping service wasn’t just about attracting customers by making its product better than those of its rivals.Instead, Google abused its market dominance as a search engine by promoting its own comparison shopping servicein its search results, and demoting those of competitors. What Google has done is illegal under EU antitrust rules. Itdenied other companies the chance to compete on the merits and to innovate. And most importantly, it denied Europe-an consumers a genuine choice of services and the full benefits of innovation.”Others who have been finedThere are others who have been fined too, these include Intel: for skewing the market by offering discountsconditional on computer-makers avoiding products from its rivals, Intel has made an appeal for the sameand the matter is due for 2018; Qualcomm: for selling its chip in extremely low prices to push its competi-tors out of the market, the case is pending; Apple: for returning illegal tax benefits; Facebook : for not beingable to match user accounts on its main service to those of WhatsApp when it took over the instant mes-saging platform. In my opinion what EU is doing with the giant companies is justified on the grounds ofmaintaining competition.ConclusionInternet neutrality is the principle which supports that all the data on the internet should be treated thesame. According to save the internet movement the telecom companies also tend to misuse the internet andload the sites that pay them in high speed and its rivals in extremely low speed or not load them at all. Thepeople who support internet neutrality argue that this will give rise to more free speech and hence wideparticipation in democracy, hence growth. Also that people and websites should have an equal access toeach other regardless of their capacity to pay. Biasness on the internet also hinders competition and innova-tion because the thing is that why would you want to stake all your ideas and gain nothing out of it or rath-er it won’t even be visible to your target audience. Internet neutrality is making operators dumb channelswhich just pass all the information that they have without segregating them on any basis. It is not as simpleas it sounds if this happens then search engines will have to find and alternate source of income becauseno more sponsored results will be allowed plus a mechanism has to be developed having more than 200parameters to sequence the results without a bias. But if it ends up in giving us so many advantages I don’tthink that we should hesitate because of this difficulty. Internet, telecom operators and search engines havedone a lot for us and has given us access to a lot of information on the internet but it all goes in vain if weresort to adopting anticompetitive practices like these. Page 29

Libertatem Magazine - Edition 30 Fasting in Islam and its Universal Values By Mohammad Azeemullah Fasting is universal as it is practiced by people of almost all the religions in the world. The form of observing fast may vary according to the belief systems of Hinduism, Buddhism, Judaism and Christianity, but the content of spirituality remains the same, that is, to please God. Fasting in Islam too springs from the same foundational source of faith and Islam acknowledges the univer- sality of it. The Holy Quran gives credence to it in the following words: ‘“Believers, fasting is prescribed for you as it was prescribed for those before you; perchance you may become righteous.” (02:183) Having ac- knowledged the tradition of fasting as a universal phenomenon, Islam makes it the fourth pillar of its belief system. So much of sanctimonious prevalence attached to it, Islam sets higher goals for fasting in terms of spiritual, physical and social welfare for mankind. The spirituality of fasting in Islam is to establish a direct bond with the Almighty. According to Al-Bukhari, God said “Every deed of the son of Adam is for him except fasting; it is for me and I shall reward for it…” (Al-Bukhari, Muhammad. Sahih al-Bukhari. Dar Ul-Hadith, 1978) Thus, one of the major goals of fasting is to attain righteousness, demanding a person to be patient and tolerant toward evil temptations in life. The word ‘fasting’ itself means ‘to abstain’ completely not only from eating and drinking, but also from reckless activities. Controlling of our urges is essential to ensure spiritual growth. As for the physical benefit of fasting, the Prophet of Islam said, “Fast and be healthy”, as narrated by Abu Nuaim. Even science has acknowledged the reward of fasting as seen by a Horizon documentary aired on BBC 2, in 2012, named, “Eat, Fast and Live Longer”. In the documentary, Dr. Michael Mosley discovered two secrets of power behind the ancient idea of fasting, the first being ‘good health’ and the second being ‘longevity’. A Swiss physician Dr. Barsilus noted that: The advantages of hunger as a remedy exceed those ingesting medicines several times. Fasting hastens the destruction of the decaying tissues of the body by means of hunger, and then subse- quently builds new tissues through nutrition. The social side of fasting is to infuse the spirit of altruism in a person towards people who suffer from mal- nutrition and starvation. The whole experience of hunger, going without food and drink from dawn to dusk, must arouse a feeling of deep sympathy towards millions of others who die of famine and unhealthy living. Having such higher goals set for the pious act of fasting, do Muslims really strive to benefit from the Holy month of Ramzan? Or is it just another year of going without food, bereft of spiritual essence, physical val- ues and sympathetic attitude which are integral to fasting? If fasting shapes a believer’s behavior during the month of Ramzan, restraining one from being angry, abusive talk and avoiding all unlawful activities, why does one fail to reflect the same standard of conduct after the holy month is over? The health benefits of fasting acknowledged by medical researchers are immense. However, what is noticed on the ground is overindulgence in eating, drinking and smoking the whole night till the time of dawn. On the contrary, the Quran mentions: ‘Eat and drink, but be not excessive; surely God does not love the extrava- gant.’ (07:31) According to a report, the United Arab Emirates (UAE) throws away 500 tonnes of food each year during the month of Ramzan alone. Unfortunately, the amount of food that is wasted could fill the bellies of many million people around the globe. Fasting truly is an experience for a noble cause, but going without food from dawn to dusk is of little significance unless devotees reflect the substance of spirituality in social behav- ior beyond the month of Ramzan.Page 30

Editor’s Pick Misplaced Priorities? By Nada FaruqiWe live in a country that is arguably a celebrated and most certainly the largest democracy in the World.India is home to a variety of languages, cultures, religions, etc. that vary every few kilometres. Among otherthings, the fact that we are a 70-year old Democratic Republic is the thing we take the most pride in. Howev-er, the ongoing political climate in the country is one of rising nationalistic sentiment wherein, despite all thedemocratic institutions in place, law is being taken by the self-styled cow vigilantes into their own hands thatlynch anybody on the mere suspicion of beef-consumption. Despite the lengthiest Constitution in the Worldand a rich criminal jurisprudence at our disposal; law has served little when it comes to the dying person onthe street, at the metro station, inside his/her own home that has been beaten black and blue by the crazymob merely on grounds of suspicion. In the backdrop of the discussion, it becomes imperative to discusswhether Democracy is just a euphemism for Majoritarianism/Mob-rule?The rising tide of neo-liberalism (also referred to as neo-colonisation) seeks to impress upon the Third Worlda uniform pattern of economy, culture and polity by way of Globalisation; with Free Market economy, De-mocracy and the Western culture as the ultimate goals in themselves. Even the dissenters of capitalism andits allied ideological forces fight tooth and nail to “preserve” these ideals. The latent ethnocentric bias craftilypresented to the World, specifically the Third World countries, in the form of Democratic rule as the ‘bestform of governance’; as the Western World continues to maintain its hegemony by hook and crook needsthorough examination on order for us to redefine what we must fight for and against. Failed democracieswith parties’ leaders rising to power for self-aggrandisement (through democratic means) and growing com-munal politics replete with hyper-nationalism; bear testimony to the fact that democracy is not the panaceafor all that is wrong with politics today. We have mobs lynching people in broad daylight under the nose ofthe state officials and nothing seems to change except people organising and crying #NotInMyName. We canhashtag all we want on the internet only to have a false fulfilment of having done something but unless wehave our priorities set straight, we are only under the delusion of ‘organising’ while things keep changingfor the worse. #NotInMyName needs to have a perspective. We need to internalise that when we say thatmob-lynching is not in our name, this should also mean that a political system that has no systemic solutionto our growing problems is liable to be overhauled and an argument against it is a collective cause. In today’sday and age when public welfare is the objective of the welfare State; it is imperative that we do have dis-cussions on whether an establishment is working for us. Welfare state need not idealise means but must stayfocussed on its priority and when the latter takes a backseat; discourse on systemic reform is a must.Goal-oriented approach empowers us to look beyond the idea that some things are a given and that debatingon those set patterns is going overboard. People’s lives being taken at the altar of cow-protection is certainlynot in the name of an India that does realise the danger that lies ahead but it certainly is in the name of theother India that seeks to paint it saffron through democratic means. When we have no qualms in questioningthe Sacred and seeking reforms in the Divine Law, we certainly can and should put on trial the legacy of ourancestors that gave to us institutions under whose watch we suffer mob-rule. Embracing majoritarianism un-der the garb of Democracy as the only and the best form of governance is certainly toeing the line of the West-ern powers that seek to peddle beautifully-packaged lies to the countries that have natural resources. Shut-ting the doors of dialogue along these lines is antithetical to the immense scope for reform that the intellectualdeluge pertaining to better alternatives suggest. How can a systemic renovation of institutions responsible forpublic welfare be #NotInOurName? Page 31

Libertatem Magazine - Edition 30 Restoring Faith in Medical Profession By Mohammad Azeemullah Gone are the days when doctors assumed an honorable position in the society. Now they have turned to deception under the garb of their profession. Negligence of Doctors Case-1: One day, Fahim, a 7-year old boy came back from school and complained to his parents about his hearing problem and the family was taken aback on hearing this. How could a normal school-going child complain of hear- ing-loss all of a sudden without a fathomable cause? The anguished boy too could not comprehend what was happening with him. The world, all at once, started to seem unexciting. Fahim could no longer enjoy the pleasing sounds of moving toys. He could no longer engage with animated world of human activities outside. The emptiness of life distressed him. A few days passed in that state of emotional confusion as to what had probably gone wrong with the child. Soon the child was consulted with an ENT (eye-nose-throat) specialist. Upon primary investigation, the doctor arrived at the conclusion of having to operate Fahim’s ear, clinically termed as ‘Grommet’. Parents implored the doctor for an alternative to surgery but the doctor was in complete denial and insisted on surgery. The ensuing development had a demoralizing effect, both upon the child and the parents. The surgery was not only unnecessary but also expensive. Within a few days, the child’s hearing was back to normal, having followed home-made remedial measures. He was happy and lucky to have avoided needless surgery by the doctor. Case-2: On February 3, early in the morning, Inder Kumar Gupta found his wife Manju lying on the bathroom floor. Her speech was slurred and her hand hurt. Realising that it was a medical emergency, Gupta took her to Bhagat Hospital in Janakpuri and then to Max Pitam- pura for a CT scan. The scan was done at 8.33 a.m. and the doctors then began to treat her for stroke but chose not to administer tPA, a key drug which can limit and reverse the damage if given intravenously within 3 to 4 hours. It left Manju in a condition which allows her to be barely able to move now. “Sometimes, it is better to die than to live like this”, she says. “I cannot bear to see her agony,” says Gupta who has since filed a complaint of negligence with the Delhi Medical Council (DMC). [Hindustan Times, Careless or callous? The cost of medical negligence, Jan 08, 2017] Case-3: Twelve-year-old Sadarsh sat with his mother Sanimol in the front row in the midst of an audience compris- ing mostly of adults. But as one speaker after another rose to tell their tales of trauma in hospitals, he looked at his mother. Seeing her teary eyed, he then turned to his father sitting behind, who gave him a re-assuring nod. “He was just 18 months old when he complained of leg pain. We first took him to a homeopathic doctor who treated him for a week. We then took him to a hospital near our house. He had also developed a fever. The doctor treated him for a few weeks, but there was no respite, both from fever and the leg pain. He had become weak by then and the doctor asked us to take him to anoth- er hospital and subsequently referred us to another doctor. After several months of hospitalization, the doctor collected his bone marrow from different points in the body, but could not tell us anything about his disease. The doctor discharged him without a discharge certificate. But our son now cannot move his legs, hands or neck,” said Moncy, father of Sadarsh, a resident of Palluruthy. [The Times of India, Horror Stories of Medical Negligence, July 17, 2013] Unethical Conduct Many tales of medical negligence grieve our heart and numb our soul. Hundreds and thousands of cases happen ev- ery day in medical profession, where doctors, on whom patients blindly trust, fleece gullible patients to orchestrate their material greed. Whether in urban or rural areas, the malpractices have expanded beyond hospitals that pollute diagnostic centres and pharmaceutical companies, requesting doctors for favours. Patients are sometimes made to undergo unnecessary investigations, hospitalisations and even surgeries in cases where there may have been no need for any of that. Jai Anant Dehadrai writes ‘The net result, notwithstanding the financial condition of the con- cerned patient, is that the treating physician and the hospital administration raise astronomical bills so as to meet monthly revenue targets. Incentives for doctors range from kickbacks for needless tests and longer hospital stays, to vacations and luxury sedans for the ‘best’ doctors.’ [The Times of India, Greed and the rise of medical malpractice in India, August 23, 2016] In most of the small nursing homes, doctors themselves own medical stores and laboratories and unnecessary prescriptions of expensive drugs are asked to be procured with no explanation given whatsoever to patients and their relatives.Page 32

Editor’s PickIn worse situations, doctors are also reported to have conducted fake operations to extract money from rathernaïve patients and their relatives. Such fake operations are made to look like genuine ones; the patient, after beinggiven anesthesia, is taken to the operating theater where family members are not allowed. The drowsy patient isthen kept for a few hours in the operation theater, but no operation really takes place. Fake stitches might be put toensure that the average patient won’t easily know that the operation was a fake one.At times, doctors deliberately delay in discharging patients even when they are deemed good enough to leave thehospital. Gynecologists at private hospitals sometimes scare pregnant women into opting for caesarean deliverywhich is more expensive than the normal one. The list of cases like these is endless. According to medical researchsurvey, “India is recording a whopping 5.2 million injuries each year due to medical incompetence and errors”.[The Times of India, Sep 21, 2013].Causes of MalpracticeIncorrect diagnosis and delayed diagnosis account for a large percentage of medical malpractice complaints. Whena doctor misdiagnoses a condition or fails to diagnose a serious disease for some time, the patient might end upmissing treatment opportunities that could have prevented serious harm.Medication errors such as, either doctor writing an incorrect dosage on the prescription or the prescription beingcorrect but the nurse administering the incorrect amount, also account for medical casualties.Anesthesia mistakes are also common. Even a small error by the anesthesiologist can result in permanent injury,brain damage, and in worse cases, even death.The real danger comes from needless medical intervention which spoils the health of a patient. In the rush to per-form as many surgeries and procedures as possible, doctors often neglect their duty of warning their patients aboutthe high risks involved in such procedures. Consent forms are treated as a mere formality, and are often left blankat the time of obtaining signatures from patients or their caretakers.With seats in the subsidized government medical colleges limited, many medical aspirants opt for private medicalcolleges that charge hefty capitation fees. This makes doctors vulnerable to the whims of private hospitals that paydecent money to their empanelled doctors, as they need to recover the expensive investment they made in theirmedical education. In rural areas, medical professionals obtaining degrees of Bachelor of Unani Medicine & Sur-gery (BUMS) and Ayurveda frequently prescribe allopathic medicines without having actual competence in thatbranch of knowledge. Health inspectors, who are otherwise entrusted to ensure the quality of medical practices inthe hospitals, work hand-in-glove with the deceitful professionals to receive financial favor.Remedial MeasuresThe nobility of the profession requires the truthful doctors to stand up and expose the immorality of those wholook at patients with lustful eyes of naked materialism. The public must also be awakened to mount pressure onthe inept government agencies to take exemplary action against the unethical medical professionals and avariciousprivate hospitals.Guarantee of medical rights to the patients as well as provision of medical transparency during the process of treat-ment will surely discourage the unprincipled doctors to continue with their malpractices. Permission to open newmedical colleges without having proper infrastructure does affect the standard of medical education, thus in turnbearing adverse effect upon the health of citizens. The Medical Council of India urgently needs to create a databasethat ascertains the number of doctors practicing in the country. This will expose the ones who practice with fakedegrees.Details of doctors and their employed equipment should be duly recorded and put on the website for larger med-ical awareness to the public. Exemplary punishment should be awarded to those involved in the complaint ofprofessional misconduct.Restoring FaithThe loss of faith in medical profession is the loss of nobility of the service to humanity. Restoring faith in the systemwill avoid patients ‘shopping around’ from one doctor to another in the hope of finding an honest and sincere one.Doctors need to be stopped from serving the interests of corporate masters and the hospital chains which havecommoditized the most noble aspects of medical profession. Physicians should be made to reflect on the reasonswhy doctors have plunged from being the guardians of people’s health to the destroyers of people’s health. Sadly,gone are the days when one could trust a doctor’s advice with blindfolds. With the unavoidable advent of profi-teering and malpractice in medical treatment – it is now imperative that patients know their rights and the Govern-ment plays a vigilant role. Page 33

Libertatem Magazine - Edition 30RERANew regime of the Consumer-Centric Law Adv. Apurv Taran Jain, RERA Court, Bhopal Indian history may remark 2016 as one of the most significant year which brought in different norms and policies throughout the country for better governance. Be it the GST Bill passed in the parliament or the demonetisation uproar, the year rooted out some very essential policies. The Real Estate (Regulation and Development) Act, 2016 (hereinafter Act) acts as one of those policies through which the rights and privileg- es of the property buyers are preserved and the real estate developers/builders will be held liable for unfair trade practises. The consumer oriented bill was introduced in the year 2013 by the Indian National Congress Government. Later on 10 March 2016, Upper House i.e. the Rajya Sabha approved the bill and the same also passed by the Lok Sabha on 15th March 2016. The Act finally came to its final form on 1st May 2016 enacted throughout the Republic of India except the State of Jammu and Kashmir. Though it is a central act, the states are given liberty under Section 84 of the Act to formulate rules of their own for carrying out the provisions of the Act. Why there was a need for RERA? The long title of the Act reads as under: “An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transpar- ent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto.” Going through the literal interpretation, the title reads that the purpose of the enacting this act is to usher efficiency and transparency in the real estate sector protecting the rights and interest of the consumers. It also brings in the speedy dispute mechanism through which the related disputes can be resolved in an accelerat- ed manner. To elaborate in a better way, presently lakhs of prospective homebuyers are struck with the false commitment of the real estate players, whereby the properties they purchased or invested in, are still underPage 34

Editor’s Pickconstruction and are no-where near the deadline. The constant delay part by the real estate players exploitsthe rights of these genuine buyers and in the end they become the puppets of their hands. The argumentson the delay could be managed if the buyers take some stringent measures against the builders, but when itcomes to wrong information, after purchasing the said property, they become helpless as the very propertythey purchased wasn’t exactly what they invested for. The legislature becoming aware of this act of malice,brought in the law and brought a paradigm change to the Indian Real Estate Sector. It enforced the account-ability of the builders ensuring timely constructions of the projects and disclosing correct and clear informa-tion to their buyers.How the Act operates:The consumer-centric act concentrates on serving the consumers through different provisions stipulated inthe act. Focusing on some important provisions, primarily Section 4 under Chapter II of the act provides forthe application for registration of the projects with more than 500 sq.m. of area or more than 8 apartmentsthrough its promoter. This provision effectively put bars on the project developers/promoters against mis-leading information, requiring them to disclose each and every information related to project including thedetails of the any past project, clearances, approvals and certificates, layout plan of the project, cost of theproject, area of the project, encumbrances related issues, legal disputes in relation to the project and every-thing other which may affect the buyer. The information is a mandate part for the registration process. Theapplication also require that the promoter shall maintain an Escrow account in a scheduled bank wherein 70%of the amount realised for the real estate project from the allottess shall be deposited and shall be used onlyfor the purpose of construction of the project. Next comes the provision of registration of real estate agentswho deal with the registered real estate projects envisaged under Section 9 of the Act, encompassing theirliability for different occasions. The agents who act as an intermediary between the promoter and the buyer(allottee) are also required to get themselves registered when dealing with registered projects requiring themto disclose each and every information related to their credibility including any legal disputes of theirs. TheAct also entails the functions of the real estate agents envisaged under Section 10 citing their duties whendealing with the registered project.The turning point of these provisions doesn’t end up here. Section 11 under Chapter III of the Act, lays out thefunctions and duties of the promoters wherein after the disclosure and the registration part, the informationof the project used for registration purpose as well as for the advertisements, prospectus of the project etc. areneeded to updated on the RERA website database where each and every information uploaded is available onpublic domain and any person can access the same. The promoter is also required to update data in relationto the progress of the project on quarterly basis. This promotes a transparent system, whereby the promoter isrequired to provide each and every information on the public domain in relation to the registered project andany person who may have queries about the project details can access the same.Whenever any right accrues, duty follows. Section 19 of the Act allocates the rights and duties of the al-lottees/buyers such as right to information to every details of the project, information on time schedule ofprogress made in project, right of possession etc. On the duty part this provision stipulates the allottee/buyerto pay his/her dues/instalments for the project on time and on delay of payment, levy interest charge, whichsomehow favours the builder/promoter. Though a small part of this act does imply a favour to the promot-ers, but when looking at the big picture, the act broadcasts a complete consumer oriented law.Next comes the Authority itself established for a speedy disposal mechanism cited under Chapter V of theAct. Section 20 of the Act encompasses the establishment of the Real Estate Regulatory Authority which willredress all the complaints filed under Section 31 by any aggrieved person for violation or contravention ofthe provisions of this act against and promoter, allottee or real estate agent. Section 21 states the composi-tion of the authority whereby the authority shall consist of a Chairperson and not less than two whole timemembers appointed by the Appropriate Government. Section 32 of the Act provides for the functions of theauthority for promotion of the real estate sector, protecting the interests of the allottees, promoter and the realestate agent and also provides for a robust grievance redressal mechanism. Section 34 lays out functions ofthe authority where one of the functions mandates the authority to publish and maintain a website for publicviewing along with the details of the real estate project, the promoter and the real estate agent. The authorityunder Section 38 of the Act entails power to impose penalty or interest against the promoter, allottee or realestate agent on any such contravention. The Authority also holds the power to revoke the licenses of the regis-tered real estate project or the agent, if they are found guilty with unfair trade practises. Under Section 43 theAct establishes the Appellate Tribunal to challenge the decisions of the Authority. Page 35

Libertatem Magazine - Edition 30 Chapter VIII entails penalties and offences against the promoters, real estate agents against non-registration and non compliance with the provisions of the act or the orders of the authority. This chapter also lists the penalties against the allottees for non-compliance part. One of the stringent part of this chapter provides for imprisonment for a term which may extent upto 3 years in case of non-compliance. Since the states have also been given the liberty to make rules in relation to the penalty part, they have adapted stern approach in accor- dance to their state laws to penalise those in non-compliance to the act or the authority. Are old consumer cases covered under RERA One may question that after the enactment of the new act, will those old consumer cases in relation to real es- tate sector, which are still pending before the consumer court will get any benefit out of it. The answer to this question lies within Section 71 of the act whereby any complaint in respect to the matters covered under Sec- tion 12, 14, 18 and 19 of the act will get transferred from the consumer courts to RERA, subject to the permis- sion of the consumer courts. This provision brings relief to those who are struck with the lengthy procedures of the consumer court and are yet to get some justice. Registration of Ongoing Projects: One of the most significant provisions of this act states the registration of the ongoing projects, where under section 3 of the act, the existing projects which haven’t received their completion certificate before commence- ment of the act i.e. May 1st 2017, are required to be registered under this act. It also requires the existing project promoters to provide details and information of the project same as of the new project. This again puts cap on the misleading information of these ongoing projects. One of the questions raised in relation to these projects is the exclusion part. Since the states are given liberty to frame rules of their own, different states have made different approach in this regard. Some of the states such as Uttar Pradesh in its rules primarily decided to exclude projects where services have been handed over to the local authority or the common facilities havePage 36

Editor’s Pickbeen handed over to the residents’ welfare association. The said rules also excluded the ongoing projectswhere 60% of the projects were already sold. Similarly, state of Andhra Pradesh excluded those projectswhere roads, open spaces, amenities and services have been handed over to the local authority or all slabs arelaid or the lease deeds of 50% of the apartments are executed. Also the state of Haryana rules exempt build-ers who have applied for an occupancy certificate, or a part of completion certificate, from getting registered.Where the state of UP formulated the exclusions before, the same were diluted after the formation of the newgovernment. (Uttar Pradesh revises RERA rules, pro-developer clauses diluted, hefty fines restored, The Hin-dustan Times, 19th May 2017). In relation to other states there is a display of strict observations against theproject developers where they haven’t received their completion certificate and also didn’t get their ongoingprojects registered. As the law imply that in case they do not get registered they cannot make any transactionin relation to the said project, and if they are found entangled with such transaction, RERA will impose penal-ties as well as take strict actions against them.The aftermath: will RERA succeed?At an interim conclusion, the answer is yet to be found that whether RERA succeed in its cause. The Actthough has been enacted, is yet to see the outcomes of its fruit. The implementation is yet to see the real estatebuilders taking responsibility and accountability of their work and in the end result providing benefits totheir consumers. So the question remains that whether RERA will finally put an halt to the unfair trade prac-tices in the real estate sector or on the contrary will fall prey to its victims in one or the other way. One of thecriticism raised in relation to this implication is that what about the pricing model. Has RERA taken neces-sary steps to curb out the problem? To this part, RERA remains silent as the law nowhere contains provisionto control the prices of the real-estate sector. But the answers to the implications are yet to make an effect asthe alarms have been raised and the real estate players seek escorts to rescue them from this falling pit.***************** Page 37

Libertatem Magazine - Edition 30 the cou By Swarnalee Haldar, Jane Maria & Shweta Subudhi

the Courtroomurtroom

Libertatem Magazine - Edition 30 How CCI penalized Hyundai for 87 crores? Imagine 87 crores of penalty? That is what is imposed on Hyundai Motors by Competition Commission of India. In the case of FX enterprise v. Hyundai Motors, the two dealers had alleged that the Hyundai Motors were liable for the following anti-competitive practices :- • Exclusive dealership arrangement with its dealers • Prior Consent of Hyundai before taking up dealership of any other brands • Dealers are bound to procure spare parts from Hyundai or vendors approved by Hyundai. • Discount Control Mechanism where the dealers are only allowed to provided discount to a maxi- mum rate prescribed. Issue • Whether the Hyundai Motors are liable for violation Section 3 and 4 of the Act? • If yes, how shall the compensation be ascertained in such a case? Judgment The Competition Commission of India found this conduct violating Section 3 of the Competition Act. To specifically state, it was violating Section 3(1) and 3(4) of the Competition Act. Therefore to consider the penalty, the Competition Commission of India noted that :- infringing anti-competitive conduct of HMIL in the instant case included putting in place arrangements, which resulted into Resale Price Maintenance by way of monitoring of maximum permissible discount level through a Discount Control Mechanism and a penalty mechanism for non-compliance of the discount scheme. Such conduct pertains to and emanates out of sale of motor vehicles. Hence, for the purposes of deter- mining the relevant turnover for this infringement, revenue from sale of motor vehicles alone has to be taken into account. Thus, the starting point of determination of appropriate penalty should be to deter- mine relevant turnover and thereafter, to calculate appropriate percentage of penalty based on facts and circumstances of the case. Further, the Commission was adamant in giving a high penalty. The the twin objectives behind impo- sition of penalties are: (a) to reflect the seriousness of the infringement; and (b) to ensure that the threat of penalties will deter the infringing undertakings. Therefore, the quantum of penalties imposed must correspond with the gravity of the offence and the same must be determined after having due regard to the mitigating and aggravating circumstances of the case. The Commission was guided by the judgment of the Hon’ble Supreme Court of India in Excel Crop case which enunciates the principle of proportionality for ascertaining the Compensation. The formula used for the calculation of penalty is at the rate of 0.3 % of Hyundai Motors average relevant turnover of the last three financial years. Responding to the order, Hyundai said in a statement: “we are really surprised with this order. We are studying the order in detail and will take necessary course of action to challenge the order at appropriate level to protect the interest of our customers and channel partners by abiding (with) all the laws of land.” Well, that implies that we can see some serious legal tussles in the Apex Court in the near future. Learning Outcome The highlighting factor of this case was indeed the calculation of the compensation. It had applied the doctrine of proportionality and took into account the significance of creating a deference in the minds of the people while awarding this whooping sum as a penalty.Page 40

the Courtroom The Deadly Crimes of Alcohol: the Hooch TragedyLiquor is now the trending subject in the Indian politics. In Bihar, Nitish Kumar is trying to prohibit themere possession of the same. In Kerala, Pinarayi Vijayan is planning to reopen the bars. The SupremeCourt has banned liquor shops within 500 meters of the Highways. All of these debated on the right ofthe citizens to choose what they eat and drink. Recently, the Supreme Court had delivered a judgmenton another aspect of Liquor. It is the deadliest reason why a prohibition on its consumption.FactsIn Haryana, due to the consumption of adulterated liquor,36 persons lost their lives. Another 44 per-sons who consumed that liquor lost their eye-sight permanently. The Trial Court had arrested about48 persons but convicted only two of them. Those two were the licensees of that liquor vend. Relyingon the provisions of Section 300 ‘fourth clause’ of IPC and the ratio of the Apex Court in Joseph KurianPhilip Jose v. State of Kerala, the respondents were convicted. The key point through which the trialcourt reached the conclusion is that the alcohol which was sold was said to have methanol poison. Theaccused was running the liquor shop for a quite a long period of time to understand the consequences ofthe toxicity of the methanol poison.Yet, when the case reached the High Court, the court took a U-turn to hold that there was no direct evi-dence to show that the toxicity arose from the alcohol distributed by the accused. They held :-“While there is oral and expert evidence available to prove that methyl alcohol was present in the viscera taken fromthe bodies of the deceased during the post mortem yet there is no material on the record to prove that the methylalcohol which was found in the viscera was consumed from the bottles that had been purchased by the deceased orsome one known to them from the liquor vends of the appellants….The learned Advocate General, has not beenable to pin point any evidence to prove that a sample from the container in which the liquor was purchased fromthe vend of the two appellants was also sent to the Forensic Expert to prove that methyl alcohol found in the bodyof any one of the deceased was possibly ingested on account of the same having been consumed from the aforesaidbottle”Regarding the criminal conspiracy, the court held that :-To put it otherwise, the High Court concluded that there cannot be charge of criminal conspiracy underSection 120B of IPC in respect of two persons qua the respondents when others stood acquitted meaningthereby charge of conspiracy of the respondents along with other accused persons was not proved.IssueOn these assumptions, the High Court acquitted the two convicts and asked the State government to paya compensation of 2 lakhs. The payment of the compensation has been done dutifully. The question thatremains before the court is whether the two accused can be acquitted.JudgmentThe Supreme Court overturned the High Court verdict and restored the trial court judgment on thesereasons• The High Court ignored the statements of persons who had lost their eye-sight immediately after consumption of the spurious liquor. Those statements are relevant under the Section 7 of the Evi- dence Act.• Secondly, the Supreme Court relied on the supporting evidence to prove that there was direct in- volvement of the accused in this case :- Even if this is a lapse on the part of the prosecution, this very conduct of the respondents in throwing away the remaining stock becomes a supporting piece of evidence along with other evidence brought on record...• Finally, the Supreme Court closed its judgment by reminding the nation about the deadly causes of alcohol :- The respondents (accused) cannot be treated as mere cat’s paw and naïve. They have exploited the resilience nature of bucolic and rustic villagers... Page 41

Libertatem Magazine - Edition 30Your Right to Redemption isnot Forever Issue There was mortgaged property which was auctioned off to a few buyers. Can the mortgagor or the buy- ers of the mortgaged property claim redemption on that property now? Can he ask the court to dispel the buyer off his peaceful possession to take over the mortgage? The judiciary was faced this question in the case of Allokam Peddabbayya vs Allahabad Bank, CIVIL AP- PEAL Nos. 2763-2764 of 2008. The Section under dispute is that of Section 60 of Transfer of Property Act :- “At any time after the principal money has become 1[due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver the property ….” “91. Persons who may sue for redemption Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely,- (a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;” Thus, to get back the property that one has mortagaged is essentially a statutory right. No doubt about that. But, nevertheless, it necessarily presupposes the existence of a mortgage. Where there is no mort- gage property in existence, it is impossible to exercise the right to redemption. It is for this reason that the court held :- The right to redeem can stand extinguished either by the act of the parties or by operation of the law in the form of a Decree of the Court under the proviso to Section 60 of the Act. Facts Under the facts of this case, the Bank had preferred a closure of the loans taken by the Appellants. When they were unable to do so, the Bank had preferred for an auction of the mortagaged property. The Plain- tiffs were stated to have purchased the mortgaged property by different sale deeds dated 12.08.1985, 20.08.1985 and 30.09.1985. Their contention was that the purchaser stepped into the shoes of his predecessors-in-title, and therefore, had the same rights which his predecessor had in title before the purchase. The judgment of the court is unambiguous in these words :- ..interest in the mortgaged property through their predecessor-in-interest and in the right to redeem the same were competent to do so under Section 91 of the Act, but subject to the limitation under the proviso to Section 60. Their rights could not be any superior or separate from that of their predecessor-in-interest. If the right to redeem stood extinguished by operation of the law under the proviso to Section 60 of the Act prior to the period olimitation, it cannot be contended that the right could nonetheless be enforced anytime before the expiry of limitation of 30 years. Thus, the court held that the possession of the property by the Defendants by way of the auction of Bank cannot be disturbed. Learning Outcome This was an important judgment that secured the rights of the innocent buyer over the property. The buy- ers shall not be disposed of as and when the mortgagors choose to take their right to redemption.Page 42

the Courtroom The Jio CompetitionFactsBharati Airtel had filed a case against Reliance Company claiming that the Jio service is anti-competitive andviolates Section 19(1) (a) of the Competition Act, 2002. The prime concern of the Airtel was related to the freeservices being offered by Reliance since the inception of its Jio business i.e. from 5th September, 2016 underone offer or the other. The Reliance Communications Ltd., was granted time till 3rd December, 2015 to con-tinue offering the Jio service. But, they continued it till 31st December, 2016 against the TRAI Regulations.Thereafter, Reliance launched a new offer - ‘Happy New Year Offer’ – by which it gave all its users unlimit-ed voice calls, data and messages until 31st March, 2017. Now, Reliance also provides an exclusive offer foriPhone users viz. ‘Jio iPhone offer’ offering unlimited local, STD, and national roaming on voice calls on anynetwork in India, 20 GB of 4G data per month, unlimited 4G data during night, 40 GB Wi-Fi data and unlim-ited Short Message Service (SMS) from 1st January, 2017 to 31st December, 2017.Issues1. Whether Reliance is providing telecom services below its average variable cost with the sole intention of eliminating competitors?2. Whether there is a violation of Section 19 or 4 of the Competition Act, 2002?JudgmentThe court held in favour of Reliance Communications Ltd. It, first of all, noted that Reliance industry wasa new entrant in the telecom market and commenced this business of Jio Service from 5th September, 2016.Hence, it cannot be said to be a dominant force in the telecom industry but rather a novice. Nevertheless,there was factual proof on the fact that it had made considerably strong investments for providing 2G, 3Gand 4G data to the customers. Hence, the court noted in these following words :-Considering the subscriber base, size, resources and economic power of other players in the telecom market,it is not appropriate to attribute dominant position to OP-2, who is a new entrant in the market and its offersare only in the nature of promotion and penetration to show its existence to the customers.The court, thus, came to the conclusion that Jio service is not anti-competitive and hence, it is not violatingthe provisions of the Competition Act. In court’s own words, the summary of the reasons are as follows :-However, the Informant has not demonstrated reduction of competition or elimination of any competitor nor has anyintent to that effect is demonstrated. The Commission notes that providing free services cannot by itself raise compe-tition concerns unless the same is offered by a dominant enterprise and shown to be tainted with an anti-competitiveobjective of excluding competition/ competitors, which does not seem to be the case in the instant matter as the relevantmarket is characterised by the presence of entrenched players with sustained business presence and financial strength. Page 43

Libertatem Magazine - Edition 30Rights of victim, offender must beconsidered equally: Delhi HC Equality before the law, also known as: equality under the law, equality in the eyes of the law, or legal equality, is the principle under which all people are subject to the same laws of justice (due process) Law also raises important and complex issues concerning equality, fairness, and justice. There is an old saying that ‘All are equal before the law.’ The author Anatole France said in 1894, “In its majestic equal- ity, the law forbids rich and poor alike to sleep under bridges, beg in the streets, and steal loaves of bread.” The belief in equality before the law is called legal egalitarianism. Here in this case Delhi hight court has pronounced while sentencing three men in robbery case. Facts A victim’s rights should be considered on a par with that of an offender while awarding punishment, a court has observed while sentencing three men in a robbery case. The men robbed Hritvik and Saurabh of their phones, money and a wrist watch at knifepoint in Decem- ber 2012. After robbing Hritvik, they targeted Saurabh who was also stabbed. He raised an alarm and two robbers were arrested on the spot. When the victims resisted, the accused assaulted them and one of them stabbed Saurabh in his abdo- men and injured his hand Arguments “The court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment,” said additional sessions judge Sukhvinder Kaur. While Naresh, one of the convicts, was sent to jail for seven years, Pradeep and Gaurav were handed a term of five years each for robbing two persons at knifepoint. The judge said “The convicts had committed two robberies on the same night at knife point resulting into inju- ries to the victims. I am of the considered view that the convicts do not deserve any leniency.” The court relied on the testimonies of the victims , saying they remained “unequivocal”, “unambiguous” and “unchallenged” and that there was no reason to disbelief their version. During the trial the victims claimed innocence and said they were falsely implicated in the case. Judgement Additional sessions Judge Sukhvinder singh kaur awarded seven years jail to convict Naresh and five years imprisonment each to Pradeep and Gaurav, saying they do not deserve any leniency. The court also imposed a fine of Rs. 7000 each on the three delhi residents who robbed two persons at knife point. “The convicts had committed two robberies on the same night at knife point resulting into injuries to the victims. I am of the consid- ered view that the convicts do not deserve any leniency.”Page 44

the CourtroomGujarat High Court concludedZakia’s HearingOn a February 28, 2002, after the Godhra train carnage, about 68 people who included Ehsan Jafri werekilled in a mob attack at Gulberg Society. The Gulbarg Society massacre took place on 28 February2002, during the 2002 Gujarat riots, when a Hindu crowd started stone pelting the Gulbarg Society, aMuslim neighbourhood in Chamanpura, Ahmedabad. Most of the houses were burnt, and at least 35victims, including a former Congress Member of Parliament, Ehsan Jafri, were burnt alive, while 31others went missing after the incident, later presumed dead, bringing the total deaths to 69. Ehsan Jafriwas the former MP of Gujarat. Prime Minister, Narendra Modi who was the then Chief Minister wasalleged to have involved in the criminal conspiracy of this riot. In December 2013, Zakia Jafri, the wifeof Ehsan Jafri’s plea to include Modi in the chargesheet was rejected by the metropolitan court.The Supreme Court had constituted a Special investigation team also to look into the involvement ofthe, then, Chief Minister, Modi. The SIT was headed by R. K. Raghavan, a former head of the CentralBureau of Investigation (CBI) in the case. The SIT had on February 8, 2012 filed a closure report givinga clean chit to Modi and others in the case. Therefore, now, Zakia and Teesta Setalvad’s NGO Citizenfor Justice and Peace had filed a criminal review petition and against the closure report of the SIT in theGujarat High Court. On 17 June 2016, Eleven people convicted of murder in the Gulbarg Society massa-cre were sentenced to life in jail by a special SIT court.Issue• Is there any veracity in the closure report of the SIT for suggesting absolutely no involvement in the criminal conspiracy?• Is Narendra Modi guilty for the criminal conspiracy?JudgmentThe Gujarat High Court have not given the judgment yet. They have concluded the hearing of the casefrom the either side and the case awaits the judgment. This judgment has the effect of deciding on thetainted reputation of our Prime Minister, Narendra Modi. Page 45

Libertatem Magazine - Edition 30Supreme Court decides the1993 Mumbai Serial BlastCase Facts On March 12, 1993, the city of Mumbai was rocked by 13 explosions in different parts of the city. It resulted in 257 fatalities and over 700 were injured. According to some news reports, the death toll was over 300 and the number of injured stood at 1,400. It is the largest coordinated terror attack to have taken place on Indian soil in terms of the number of casualties. It is also one of the most well-planned terror attacks to have been perpetrated in India apart from the 26/11 Mumbai attacks. It was also the first terror attack on Indian soil in which RDX was used as the explosive material. At 1:30 pm on March 12, the first car bomb went off in the basement of the Bombay Stock Exchange building. The 28-story office building and surrounding struc- tures were thoroughly damaged. About 50 were killed in this explosion. Over the next two hour 10 min- utes, till 3.40 pm, car bombs and scooter bombs went off at regular intervals at many locations in the city. They were: the Fisherman’s Colony in Mahim causeway, Zaveri Bazaar, Plaza Cinema, Century Bazaar, Katha Bazaar, Hotel Sea Rock, the Air India Building, Hotel Juhu Centaur, Worli and the Passport Office. Grenades were lobbed at Sahar Airport. The Attacks were planned by Dawood Ibrahim. Dawood was assisted in this act by Tiger Memon, one of his most trusted associates. The original plan was to attack Mumbai in April during the Shiv Jayanti cele- brations but was advanced after Gul Noor Mohammad Sheikh a.k.a. Gullu was detained at the Nav Pada police station on March 9, 1993. Five Customs officials and five policemen were also widely held responsi-Page 46

the Courtroom-ble for allowing RDX into the city. Some of them received bribes and some were just lax about their duties.There were also blasts at Zaveri Bazaar and a petrol pump adjoining the Shiv Sena Bhavan. Apart from thebombs, people at fishermen colony in Mahim and at the Sahar International Airport were targeted withhand grenades. The Mumbai Police, which was originally handling the case, handed over their investiga-tion to the CBI a month after the attacks. The CBI filed a chargesheet against 189 people, including Bolly-wood actor Sanjay Dutt, in 1994. Dutt was found in possession of an AK rifle which was part of the con-signment used in the attack. Dutt, who served five years in prison, was released last year in February.Why was Mumbai targeted?Between December 1992 and January 1993, communal riots broke out in the country, following the dem-olition of the Babri Masjid in Ayodhya and subsequent construction of a make-shift temple in its place.According to the CBI’s case, the terrorist attack was planned and executed as ‘revenge’ to the riots thatkilled many Muslims. The agency claims the objective of the attack was to ‘strike terror in the people’ andto ‘adversely affect the harmony’ among different sections of society.Accused and ChargesMustafa Dossa (alias Mustafa Majnu)Charges- Criminal conspiracy and offences under Tada to cause the blasts; attended and participated inconspiracy meetings at the residence of absconding accused Mohammed Dossa along with Dawood andTiger Memon; sent arms and ammunition from Dubai.Abu SalemCharges- Criminal conspiracy to commit terror acts; sent nine AK-56 rifles and hand grenades to Mumbaiin false cavities of a Maruti van from Bharuch and delivered some to the residence of actor Sanjay Dutt inJanuary 1993; kept some arms at co-accused Zaibunisa Kazi’s house at the instance of don Anees Ibrahim.Charges against him attract death, but India agreed not to grant him death while extraditing him fromPortugal.Riyaz SiddiquiCharges- Criminal conspiracy and offences under Tada to cause the blasts; brought in arms to Mumbaifrom Gujarat with Salem.Qayyum ShaikhCharges- Criminal conspiracy to cause the blasts; procured arms and grenades along with Anees Ibrahimand sent them to India for the blasts.Taher MerchantCharges- Criminal conspiracy to cause blasts; participated in meetings in Dubai and Mumbai; arrangedmen from Mumbai to be sent for arms training to Pakistan.Feroz KhanCharges- Criminal conspiracy; held meeting with Mohd Dossa and customs officers to enable smuggling ofarms; helped dump a large arms consignment into Kandalgaon creek.Judgment by Special CourtSix accused were pronounced guilty on Friday( 16/6/2017)by a special court in the 1993 serial blasts casethat claimed 257 lives in the city. Qayyum Shaikh, 64, behind bars for almost 11 years, was acquitted forlack of evidence. Special judge Govind A Sanap found “concrete evidence” against gangsters Abu Salem,48, and Mustafa Dossa, 60, Taher Merchant, 55, Feroze Khan, 47, and Karimullah Khan, 55, and convictedthem on charges of criminal conspiracy, murder and indulging in acts of terrorism that cause death duringthe hour-long procedure. Riyaz Siddiqui, 67, was found guilty for abetting and aiding terrorism, a chargethat attracts a maximum punishment of life imprisonment. Arguments by the prosecution on the quantumof sentence are likely to begin in the special Terrorist and Disruptive Activities (Prevention) Act court onMonday. Page 47

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