Libertatem Magazine - Issue 28 [May 2017]

MAY 2017 LIBERTATEM MAGAZINE www.libertatemmagazine.comEdition 28 CCohveer Smtoryical Attacks on Syria: This Chemistry Turned Out Wrong Featured Story Sino-India Border Dispute: A Hegemonic Clash

Libertatem Magazine - MastheadLIBERTATEM MAGAZINE www.libertatemmagazine.com Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Sarthak Sonwalkar (LAMP Fellow) Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Anushka Jain (Institute of Law, Nirma University) Somya Stuti (Amity Law School Centre-II) Pragalbhi Joshi (National Law University, Odisha) Apurv Taran Jain (National Law University, Odisha) Richa Sankhla (Institute of Management, Nirma University) Content Writers Adit Kesarwani (Institute of Law, Nirma University) Khushbu Shah (Maharastra National Law University) Mohd. Azeemullah (University of Al-Asmariya, Libya) Prateek Mago (Institute of Law, Nirma University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Shubham Patel (Dr. Ram Manohar Lohiya National Law University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) Prithwish Roy (Institute of Law, Nirma University) Vaibhav Sharma (Ragiv Gandhi National University of Law) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Jane Maria (National Law University, Odisha) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2017]

Contents Content of the 28th edition May 2017 Volume 3 Number 5Cover Story Editorials04 This Chemistry Turned Out Wrong 23 Babri Mosque Fiasco: The by Shresth Vardhan Politico-Legal Battle That Has 06 Sino-India Border Dispute: Transcended Centuries by Nada Faruqi A Hegemonic Clash by Prateek Mago 24 Harming The Cause Of Hinduism by Mohammad AzeemullahTop Stories 25 Transformational Attitude of Youths from Kashmir against 08 The Political Menace: Downfall of Terrorism AAP and Rise of BJP in Delhi by Mohammad Azeemullah Municipal Elections 26 Is there an end to this plight? by Shreyan Acharya by Sarthak Sonwalkar10 Delhi MCD Elections: Tampering of EVM’s Or Reality? the Courtroom by Adit Kesarwani12 Khulbhushan Jadhav: The Story 30 SC on Whatsapp Privacy Policy Matter Thus Far by Swarnalee Haldar by Prithwish Roy14 NITI Aayog and its Plans 31 Supreme Court Accepts CBI Plea, by Shubham Patel Refuses To Remove Lalu Prasad 16 Red Terror Strikes at Sukma: 25 Charges CRPF Men Martyred by Swarnalee Haldar by Vaibhav Sharma 33 The Supreme Court upholds death penalty for Nirbhaya Convicts by Swarnalee HaldarExpert Article 35 SC: Disabled Persons may choose 19 The Goods & Services Tax not to stand when National by Adv. Kanishk Agarwal Anthem is being played by Jane MariaParley with the Pirates 36 SC orders joint trail of LK Advani & ors with Kar Sevaks 20 Parley with founder of CriTaxCorp: by Jane Maria Adv. Kanishka Agarwal, Founder 37 Taxing the Formula One of CriTaxCorp by Jane MariaClick the thumbto like ourFacebook Page

Libertatem Magazine - Edition 28CTOTuhhurietsnmWedirsotnrygBy Shresth VardhanThe spine-chilling chemical attack earlier this April, that left Syria deadin scores was a gross infringement of the international law as well asan intense show of recalcitrance to the world leaders. This disturbingattack showed no less than 100 civilians the fate of death in Syria’s re-volted area of Idlib and left another 400 experiencing respiratory issues.There were some exasperating pictures and videos that ran through thecoursed of the social media and networking sites demonstrating casu-alties with froth around their mouth, and naked kids squirming on thefloor. The alleged attack was accepted to be purported by the Syriangovernment aircrafts disrupting outrage and shock over the constantlyexpanding government shown in the six year war. The population ofIdlib has expanded, with a huge number of people and fighters carriedout of the Aleppo city and Damascus that the Syrian government hasretaken in the recent times.The attack in Ghouta close to Damascus on 21 August, 2013 is viewedas the first major and the most deadly chemical attack since SaddamHussein gassed the Iraqi Kurds in 1988 slaying a huge number of peo-ple. Assad at that time negated all the allegations and claimed himselfto be blameless, however he failed to furnish any cogent or convincingincidental proof and thereby failed to establish any another persuading hypothesis. Nevertheless, Assaddeclines to move and his star partner in Moscow has upheld him to the handle against the agitators andthis indeed hints no change. This attracted a broad condemnation, however the world community’s reac-tion led only a short lived dependable impact against Assad’s barbarities. U.S.A and Russia concluded anarrangement soon thereafter to crush Syria’s chemical weapons. In this way, the UNSC’s resolutions look-ing to consider the perpetrators in Syria responsible have been vetoed by China and Russia.Page 4

Cover StoryWitnesses to this attack reported that the Syrian warplanes bombed Khan Sheikhoun, around 50kmssouth of Idlib, when almost everyone was sleeping. One of the witness stated that, “The blast sent a yel-low mushroom cloud into the air that stung her eyes.” It resembled a winter haze. The source to this is yetnot clear, but rather it is presumed that the warplanes had focused on clinics and the Syria Civil Defenseheadquarters. As per some of the doctors and the specialists, nerve agent Sarin, known as isopropyl met-hyphosphonic acid, had been traced in the blood of the victims. Hundreds of people showed symptoms inconformity to Sarin after what the West said was a Syrian government air strike on the region.Despite of all this, the Syrian President Bashar al-Assad claims that the whole episode was concocted with-out any proof. The same authority which repudiated the weapons about four years back after an expansivechemical attack which was steered by its forces, denied that the military had been capable, as he has eachand every time when chemical weapons have been utilized as a part of Syria. Syrian military have targetedinsurgents for obligation and said they had blamed the armed force for utilizing lethal weapos each timethey neglect to accomplish the objectives of their supporters. The military has likewise denied any chargesthat the government had used weapons, rejecting the records as revolt propaganda.The ministry in Syria said that the chemical weapons had additionally been used amid the last phases ofthe fight for control of the city of Aleppo, drawing that the side effects of the casualties were essentiallythe same. US agencies are assertive regarding the fact that the Syrian government struck Khan Sheikhounas a retaliation of a revolt in the Hama province. They likewise are of the view that Assad’s governmentis in charge of this extraordinarily grotesque incident, and have therefore issued furious condemnations.French agencies have reportedly said that Syria is not sure to have the ability to utilize a neurotoxic agent,or the air force that is required for such an attack. Similarly, a report of the Human Rights Watch, providesthat the physical remainders of the weapon used, and the medicinal side effects shown by the casualties asrecorded by the doctors and the staff, goes to show that it was a state-supported attack.This ghastly occurrence was no fortuitous event as the assault additional-ly hosed the peace talks that were taken by the United Nations in Genevaand by Russia and Turkey in Astana, Kazakhstan.This is a piece of a more extensive example we’ve seen all through theSyrian government being willing to adopt any technique of warfare forthe purpose of fighting against their own kin. The continuing failure andinability at the international level to adequately address Assad’s atroci-ties and to uphold punitive and correctional actions has made a cultureof exemption in Syria. Incidents like these will continue to precede thelength where there is no equity and responsibility. We’re currently intothe seventh year of this contention, and there has been no concrete reac-tion to the transgressions we’re seeing every day for quite a while. I thinkSyria is aware of that fact, and they are essentially pushing the limits. Iwish to hold the view that this was intended to be some sort of a messageto the EU, by the Syrian government that they won’t offer any bargains,and if there is anything to be done in Syria, that would be solely based onits terms. These death tolls are an indication of the knottiness of the battle against ISIS, which is yet the agenda of the western military. Everyone should adhere to their obligations notwithstanding such barbaric activities that distort the international peace and security. Westerners must collaborate with a perplexing interwoven of combating groups who have advanced training. One ought to endure as a top priority that if the revolutionariescommit the attack, then the U.S. could really make a move considering America and its partners effectivelybolster them. Pulling back support from them would give a fall back to their strategies and would add toSyria’s wellbeing and security. That is not the point of, however, reason being from the razzmatazz thatthe media is offering it is not difficult to conclude that media’s definitive and most crucial focus on thisstory is to collect support for further war and slaughter in the Middle East and nothing less of it.*********** Page 5

Libertatem Magazine - Edition 28Sino-India Border Dispute:A Hegemonic ClashBy Prateek MagoHistoric claims has been one of the most fascinating mechanisms used by the People’s Republic of China,hereinafter referred to as China, to claim territories around its officially recognised territory. This is precise-ly the reason as to why China has been indulged into several territorial disputes like the South China SeaDispute, the Sino-India Border dispute, etc. The present article has been written keeping in mind the sever-al developments that have taken place with respect to the Sino-India Border Dispute in Arunachal Pradesh.The state of Arunachal Pradesh is officially one of the 29 states in the Republic of India, hereinafter re-ferred to as India. The dispute has been going on in Arunachal Pradesh since decades and both the nationshave even fought a war in Arunachal Pradesh in 1962. As mentioned above as well, China is relying uponcertain historic claims to assert sovereignty over the Indian state. It states that there are strong historicalties that are existent between the Lhasa Monastery in Tibet and the Tawang Monastery which is situated inArunachal Pradesh, and the fact that according to them, Tibet is a part of China, Arunachal Pradesh, whichis also known as Southern Tibet, is also a part of China.There are very prominent factors which have led to this aggressive approach from the side of China withrespect to Arunachal Pradesh. The most important one of them is in clear retaliation to India’s Tibet card.As per China, the Tawang Monastery in Arunachal Pradesh is the birthplace of the 6th Dalai Lama, and it isalso believed that the present Dalai Lama, i.e., the 14th Dalai Lama might choose his successor from the 400year old monastery in the Indian state itself.There has been a long ongoing tussle between India and China with respect to Dalai Lama’s stay in India,Tibet’s freedom struggle, and India’s involvement in elevating the Tibetan struggle. Dalai Lama has beenallowed to stay in Dharamshala and has also been allowed to travel abroad by India. This action by India,in addition to powerful and impactful speeches by Dalai Lama all across the globe, has led to a massivePage 6

Cover Storyincrease in Chinese insecurities as the people are influenced to think & talk about the Tibetan issue, whilequestioning the credibility of Chinese claims at the same time.Recently, on 14th April, 2017, the Ministry of Civil Affairs of the People’s Republic of China publicly an-nounced that they have named 6 districts in Arunachal Pradesh in their own standardised Chinese char-acters, Roman and Tibetan alphabets, thus again reinforcing its territorial claims over the Indian state. Thenew names are: Mainquka, Namkapub Ri, Mila Ri, Bumo La, Qoidengarbo Ri and Wo’gyainling.As per Chinese governments, this action is completely legitimate in nature and is in consonance with theirregulations. They also expressed that the said action is in retaliation to the Indian inclination towards Da-lai Lama with respect to the Tibetan struggle, which in their eyes, is in direct contravention to the Indiancommitments to the People’s Republic of China. In response to the action, the Ministry of External Affairsof India has clearly condemned the action and has stated that there is no change at all with respect to In-dia’s policy towards the Autonomous Region of Tibet.The present action by the Chinese government has actually raised a lot of questions with respect to thelegality of its territorial claims. In this regard, emphasis must be laid down on how the International Courtof Justice would view the whole dispute. Although, it is quite sceptical that the Chinese will submit theirjurisdiction to the International Court of Justice (ICJ), but still, in international law, the fact that the ICJis being considered as the epitome of justice between states, it is imperative that a more rational view isbeing considered.As per Art. 38 (1) of the Rome Statute of the International Court of Justice, the following are the sources oflaw:a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;b. international custom, as evidence of a general practice accepted as law;c. the general principles of law recognized by civilized nations;d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualifiedpublicists of the various nations, as subsidiary means for the determination of rules of law.Also, as per the Art. 38 (2) of the same Statute, the parties have the power to get the dispute decided bythe means of ex aequo et bono.The treaty based claims are less emotionally persuasive than the historic claims with respect to the claimover territory. The Chinese claims do not arise from any treaty signed in the past, and it is very much be-lieved that China is simply going to take the help of old maps to substantively back up its claims. Nor dothey arise from any sort of existing customary international law which talks about the claim over territoryon the basis of historic claims.Although, historic claims do hold a lot of relevance and they do develop an underlying entitlement toproperty, still, the effective possession or control over the territory is the strongest claim as per the rulesand principles of property law. The only manner in which China can actually build its case is when it issuccessfully able to prove as to how culturally important the territory is to their own culture, because atthis point of time, even the status of the Autonomous Region of Tibet is in question. Hence, it will definite-ly be scrutinized and questioned if China relies upon Tibetan culture to support its claims.This brings me to my conclusion wherein I would just like to mention that it is the Republic of Indiawhich has been asserting sovereign and an effective control over Arunachal Pradesh. The whole situationresults into the invocation of the principle of acquiescence even though the Chinese have shown protestin the past, as all those protests were done to retaliate against Dalai Lama’s actions in pursuance of theTibetan struggle. China has very strong reasons to believe as to why the mere presence of Dalai Lama inArunachal Pradesh can be construed against Chinese interests, and hence, it is well within its sovereignrights to protest against such actions. But the real question that needs an answer at this point of time iswho is going to get favoured in the long run-India or China. ********** Page 7

Libertatem Magazine - Edition 28The Political Menace:Downfall of AAP and Rise of BJPin Delhi Municipal ElectionsBy Shreyan Acharyahe Great Indian Elections celebrate the functioning of a successful democratic institution. The elections inIndia are held on regular intervals, and the autonomous body i.e. the Election Commission of India has theresponsibility to conduct free and fair elections and regularly evaluate and examine the trending issues sothat amicable solutions can be executed. The Election Commission of India currently faces various chal-lenges such as EVMs alleged to be tampered by various political parties, holding of simultaneous electionsi.e. holding general and local elections together, recommending the Law Commission, suggesting neces-sary changes in the Representation of People’s Act, etc. This article is an attempt to evaluate the result ofthe MCD polls held in Delhi on the 23rd of April 2017. The current dispensation at the Centre emerged asthe single largest party in the MCD polls provided great impetus to the morale of the workers and leaders.This article does not concentrate on praising the achievements of the Bhartiya Janta Party, but focuses onunderstanding the whole process involving the rise and fall of the Aam Admi Party, the face value of Shri.Narendra Modi, the issues on which MCD polls are contested and future expectations.The 73rd and 74th Constitutional Amendment aimed at empowering the local bodies, and the 74th Amend-ment provided an autonomous status to the Municipal Corporations. In Delhi, MCD polls are contestedon different wards, and the prime issues that are to be concentrated upon by the MCD officials are water,sanitation, women safety, health, electricity, etc. Delhi, the capital city of India, does not possess appropri-ate tools to counter the issues. The capital has become a breeding ground for poor health and sanitation fa-cilities. Every year, we come across the problems of dengue resulting in the deaths of hundreds of citizens.But, this year the elections were contested on different lines according to my opinion. The earlier rule in theMunicipal Corporation was majorly the Bharatiya Janta Party. The likely changes in the rule were predictedPage 8

Top Storybut the results declared all the predictions incorrect. What we need to understand is that there are certain fac-tors which contributed to the winning of the BJP in massive numbers in the MCD elections. The rise and fall ofthe Aam Admi Party is the biggest factor. Apart from the fall, the internal turbulence of the Congress and thelack of the leadership to raise critical issues and lacked vision equally contributed in the winning of the BJP.And, the major reason is the growing popularity of Shri Narendra Modi.Arvind Kejriwal, the torch-bearer of fight against corruption, had a grand opening. His popularity and charis-ma led to his and his party’s massive victory during the Assembly polls and left everyone speechless. The over-whelming majority in the House was seen as a Government who will deliver to the aspirations of the citizens.The AAP government took office with great zeal and enthusiasm, and it is not denied that their work has notgone unnoticed. The initiative of Mauhala Clinic is commendable. But, months later, the political accusationsand internal rifts amongst the top members of the Party led to the downfall of the party. Mr. Kejriwal’s unwav-ering determination lacked focused. As his attempt to politicize major issues did not go in his favour. His act ofblaming the Centre for non-cooperation only led in the weakening of his political status. A good administratorlike Kejriwal lacked in the qualities of a good leader and a better politician. In my opinion, the rejection of AAPcandidates in the MCD polls may be the after effect of his betrayal to the residents of Delhi. As his diverted ef-forts to gain power in Punjab and U.P. was a big failure for which the party payed the price in Delhi. Kejriwal’saccusation against EVMs may or may not be substantial, but what the Party needs to introspect first is to focusits entire effort in fulfilling the promises made to the people of Delhi which is seen as the last hope turning theball back to its’ court. Because, the MCD polls clearly showed the anguish of the people against AAP and forits revival the party must concentrate its efforts towards the people of Delhi entirely before the next Assemblyelections. The Congress Party’s debacle began during the Lok Sabha Elections of 2014. The Party’s defeat wasanalyzed as an anti-incumbent wave due to inefficiency in leadership. The Party claimed its revival by workingin opposition. The success of it was short. The Party, after forming Grand Alliance and making a little victoryin the State of Punjab, failed to make a solid foot on the ground. The major reason for their failure is directedtowards inefficient leadership and lack of sound decision making. According to many reports, the internal riftsagainst the family domination and lack of representation in the decision making process forced many to quitthe party. During the MCD elections in Delhi, the Congress Party was seen as a small player in the race. TheCongress Party was not seen as a major opponent, and the electorates of Delhi like in the Assembly polls reject-ed the candidates in the MCD polls as well. The Party needs some deep introspection and necessary changesin the current command. The failure to form government in States like Goa illustrates their lack of vision andsound decision making power. The Congress Party is still trusted for their struggle during the freedom move-ment and many believes in the principles on which the Party was founded, but the Party must not become thehandmaiden of one family and the poor representation will only lead to its downfall. There are various leaderswith exquisite potential and the responsibility must be allotted to the person who has the potential to deliverand not to the ones having close affinity.Now, after examining the short-comings of the political opponents of the BJP, we must also highlight the BJP’svictory and the future road ahead of them. The earlier majority of the MCD officials also comprised of themembers of the Bhartiya Janta Party, and under their rule, Delhi have not seen much of improvement. Thewater shortage is still rampant, and the health and sanitation conditions are deteriorating. Every year denguecauses death of hundreds of citizens and the drainage facility is still inadequate. So, what has led to the victoryof the BJP even after so many short-comings? The prime reason is the face value of Shri Narendra Modi and thestar campaigners of the Bhartiya Janta Party. He successfully retained the faith of the people and the candidatesusing his mentorship to gain votes during the elections. Even during the MCD elections, the dual leadership ofShri. Modi and Mr. Amit Shah, led to the victory in the battle. Their decision to allot tickets to the fresh candi-dates has led many electorates vote with the hope of some changes. The agendas of development and bettergovernance have yet again managed to convince the people of their competency. It is to be applauded that howBJP managed to maintain their winning streak but the road ahead may not be easy for the MCD officials and thepeople of Delhi. The whole nation is aware of the rift between the BJP and the AAP, and having the current dis-pensation of AAP in Delhi, the MCD officials may claim to not work amicably as was done earlier as well. Theissue of delay in releasing of funds, lack of coordination between the official and willful non-cooperation wouldultimately lead to the loss of the people of Delhi. The deplorable Centre-State relations between the currentdispensations often used as an excuse for the delay in work may also be used as an excuse at this juncture. Thisis an actual litmus test for the representatives to fulfill their promises, and keep the aspirations of the peopleof Delhi before their political battles and in their fight to bring one down. It is clear that this would be the statebefore the next elections, so the leaders must establish a cordial atmosphere where such trivial differences doesnot undermine the important issues and the focus should be towards the promises provided in their manifesto. Page 9

Libertatem Magazine - Edition 28Delhi MCD Elections:Tampered EVMs or Blame Game? By Adit Kesarwani BJP in the current Delhi local elections retained all three municipal corporations for the third term consec- utively, giving a strong defeat to the current Chief Minister, Arvind Kejriwal’s AAP and the Congress. The AAP somehow managed to secure the second place and the third place was owned by the Congress. For AAP, the MCD election was a means to have greater control over the affairs of Delhi. The elections carry wider national ramifications as an emphatic victory for the BJP will only add stars to its gloomy world and leave a divided opposition again demoralized in the run up to the general elections in 2019. The BJP has taken up the responsibility for the city’s civic bodies for a decade. Following are the series of events which took place and were the highlights for the MCD Elections, 2017: Ajay Maken expressed his grief Maken broke down and wept on camera when he was asked about the journey of Congress leaders from the party, including Arvinder Singh Lovely, to BJP. Moreover former CM Sheila Dikshit had put the blame upon Maken for the exodus of Congress leaders ahead of the MCD elections. When the media asked Maken about the allegations against his leadership were true during a TV news programme, tears started flowing up from his eyes and he remained silent for couple of minutes, forcing the anchor to go for an unscheduled break. AAP accuses BJP for trying to break party A day after the MCD election 2017, AAP legislator Alka Lamba created another controversy by claiming that BJP was trying to break her party by encroaching their MLAs. “The BJP is making its leaders call up AAP MLAs and tell them that the party is coming to an end. You (AAP MLAs) will be given an MP ticket or an important position in the government. We can do this for you by telling (BJP president) Amit Shah…The BJP leader said Modi-ji will soon impose the President’s Rule in Delhi just like it did in Arunachal Pradesh and Uttarakhand,” Lamba said in a series of tweets. Arvind Kejriwal threatens Delhi voters that do beware of BJP! A day before the polls Delhi CM Arvind Kejriwal created a controversy by almost threatening Delhi’s resi- dents to not vote for the BJP. A video was shared on the social media ‘Facebook’, by Mr. Kejriwal telling Page 10

Top Storytelling the Delhi voters that they would themselves be responsible for dengue and chikungunya for fiveyears if BJP came back to power in the three civic bodies of Delhi. However, at the end he also came toknow that the ball is now in someone else court and he was very late in his actions.BJP secured a clean sweep in all the three civic corporations of DelhiShattering the hopes and confidence of AAP and Congress, BJP won all the three corporations of Delhi witha huge number of seats for the third consecutive term.BJP claims politics of excuses and blame games has lostAfter winning the MCD election 2017, BJP chief Amit Shah stated that this was the victory of Prime Min-ister Narendra Modi’s politics of development and the loss of politics of ‘blame game’ and ‘excuses’ prac-ticed by opposition parties. Delhi BJP chief Manoj Tiwari also accused the opposition leaders of doingpolitics of “negativity”.Defections from CongressThe Congress election campaign for the MCD polls was hit by the defection of a few senior leaders includ-ing four-time MLA Arvinder Singh Lovely and Delhi women’s Congress chief Barkha Shukla Singh. More-over apart from this break up within the party, the leaders of congress had made accusation against theDelhi Congress chief Ajay Maken of ignoring demands and advice of party workers.Defection from AAPAlike Congress, AAP had also faced certain defection ahead of the MCD election 2017. AAP MLA fromBawana, Ved Prakash, had left the party and had planned to join the BJP. Prakash made very strong allega-tions against the AAP leadership stating that it was inaccessible to party MLAs and claimed that 35 otherAAP MLAs are also not happy with the party leadership.AAP again blames EVMs!“It is difficult to believe (the results). A defeat or victory by such huge margin of the polls would not have been pos-sible without the rigging of polling machined,” were the words of the Delhi Deputy CM Manish Sisodia whenhaving a conference with the reporters after early leads which confirmed a massive loss for AAP. The partyhad been complaining against the EVMs being defective, since its loss in Punjab and Goa Assembly elec-tions 2017. AAP had even asked the Election Commission to again carry out MCD polls but now not thefaulty machines but on ballot papers. However, the Election Commission said on multiple occasions thatthe polling machines in any case being whatsoever could not be tampered with, but AAP senior leaderSisodia made a questionable argument “Even the BJP leaders who once used to campaign against the EVM,did research against it, are now supporting it,”. This is still a controversy and nothing clear had come outfrom either side. The Election Commission had expressly stated that tampering of the EVMs is not possiblein whatsoever any case be it.ConclusionIt’s a tough call for every party sitting on the opposition to bring out new things to allure the voters. Asnow, the public is of the opinion to cast their vote for someone who is going to work for the betterment andfor them, and not just going to listen their fake promises. However, results of this elections were shockingfor all and it is being contended everywhere that BJP’s massive victory is a result of the humiliation whichit faced in the capital territory elections two years back where it could able to secure only 3 seats out of atotal number of 70 seats. Against such allegations of EVM tampering or AAP leader Gopal Rai’s allegationsthat the BJP win in the municipal corporations is not a BJP but an EVM wave, are one-sided and provingof the Delhi exit polls results are on the other side. The leaders of the opposition are looking behind forreasons for shadowing their loss and on the other side the people of the national capital are enjoying theirwell-planned and well-informed decision disproving all the claims of the opposition. The Election Com-mission has trashed all the allegations made upon him for providing before 2006 EVMs or stating thatanyone can make a “lookalike” gadget to justify “magic or tampering”. The answer the doubts regardingthe efficacy of machines, the Election Commission which has been mandated to conduct and perform thestate assemblies elections and local elections announced that an EVM hackathon can be conducted onsomewhere after an all-party meeting on May 12 and all the national parties have been asked to deputetheir representatives for the hackathon that will be hosted at the EC’s headquarters. Such strong move bythe EC shows its boldness while dealing with such type allegations, as it is a body of repute which has beenentrusted upon to look before maintaining the decorum of the democracy in India. Page 11

Libertatem Magazine - Edition 28KThuelbShtuosrhyaTnhuJasdFhaarv:By Prithwish RoyThe story making headlines for quite some days now is that of Kulbhushan Jadhav. For the Pakistani dailiesit is a story of a major political catch by a Pakistani counter-intelligence operation and a means of slingingmud towards it Indian counterpart’s security bureau, while for India the story is that one of its nationals hasbeen arrested and sentenced to death arbitrarily, without any fair trial, or any trial for that matter.To give a brief about the facts of the issue, Kulbhushan Sudhir Jadhav, an Indian national was arrested inBaluchistan, Pakistan over charges of terrorism and spying and furthermore it was alleged that all these actswere carried on at the behest of the Indian intelligence organization, Research and Analysis Wing (R.A.W.).The Indian account of the same story is that Kulbhushan Yadav was a former naval officer who took prema-ture retirement and was abducted from Iran. One of the key evidence which has been made public and onwhich heavy reliance has been placed by the Pakistani side is a video recording of Jadhav wherein he con-fessed that he was still serving the Indian Navy and was working in Pakistan on behalf of R.A.W., referringto the same, Lt. General of Pakistan Army, Asim Bajwa stated that Jadhav’s act were nothing short of “statesponsored terrorism” and alleged India of supporting and funding the Baluch separatists in their campaignfor a separate Baluchistan.In its counter Indian Union Minister Kiren Rijiju claimed that the video was completely doctored and was anattempt to cook up stories and defame India. He further added that Jadhav owned a cargo business in Iranand during the course of carrying out his business in Bandar Abbas and Chabahar ports he either strayedinto Pakistani water or was lured into Pakistan and fake documents were planted on him by the ISI.Page 12

Top StoryOn the 10th of April, 2017, the Pakistani Field General Court Martial sentenced Jadhav to the maximum pun-ishment, death penalty.Looking at the legal implications that have arisen out of the incident, as per legal analysts all over, the inci-dent is a blatant violation of international human rights law on multiple grounds. Firstly, the right to free andfair trial has been absolutely negated by the Pakistani Field General Court Martial. A roadblock for enforcingthis right internationally is the fact that neither India nor Pakistan is a party to any international instrumentswhich may provide relief to Jadhav on account of violation of international humanitarian law. However, In-dia does have a recourse and that is by turning its head towards the United Nations and bringing the matterbefore the International Court of Justice as a violation of the treaty obligation owed to India under the Vien-na Convention on Consular Relations, which both India and Pakistan have ratified. The treaty also has an‘optional protocol’, to which again both India and Pakistan are parties too. The protocol paves the way for arecourse as it provides for compulsory of the ICJ between any disputes arising out of the contracting states.The last case which went to the ICJ on a similar matter was the ‘Avena and Other Mexican National’ case inwhich the ICJ has stayed the death penalty, vide an injunction order, till the case was settled on merits. Inthe given case it is evident that India has very strong case given the fact that the trial by Pakistan was itself asham and grossly violative of international human rights.Another major issue with the trial is the fact that it was carried out and the punishment awarded on the basisof the confession given by Jadhav. However, any neutral party would argue that any seasoned interrogatorcan break down anyone and obtain any form of confession and which is precisely why many courts refuse toput any weight on confessions obtained while in custody. Basing an entire trial upon such a confession andgoing on to award a death penalty on the basis of such a confession appears to be void of any merit and de-gree of fairness. Furthermore, no consular access has been given to India thus far by Pakistan. Former UnionMinister and BJP leader R K Singh has fueled speculation that Kulbhushan Jadhav has either been alreadyexecuted or that the torture carried upon him has resulted in his death, which is why the death sentencehas been passed to cover it up. India has had sixteen requests for consular access to Kulbhushan rejected byPakistan, and the grounds for rejecting the same has been that it is a matter of defense and national security.The conclusion of this saga, although, might restless on the legal recourses and more on the persuasive dip-lomatic acts and dialogues. Intelligence gathering in other states, post the Cold War, is fairly routine andprecedents of hanging anyone caught in such an act have been rare, or unreported and thus an optimistwould hope that Pakistan would know better than to hang a foreign national, based on a controversial trialviolative of international norms. On the contrary if Pakistan does prove unbent and unbound on its resolveand goes on with the death penalty on Kulbhushan, if it hasn’t already done so, then it goes on to show theirintent to create a shock and awe effect on an international platform and the response of India, should notbe mere diplomatic dialogue but something more concrete and deterring and in the lines of the controlledaggressiveness which was put on display when the surgical strikes were carried out. The case is not that of Pakistan having an upper hand in terms of hold- ing a political prisoner as even India has under its custody intelligence officers from across the border as well, but the difference lies in how the same is being dealt with by the neighboring countries while India has warned of strict consequences if the punishment is carried out. A recent example would be pointing out that a Supreme Court bench con- sisting of Justice AK Sikri and Justice Ashok Bhushan, while dealing with an issue related to release of Pakistani prisoner from Indian prison on completion of their terms brought to light their knowledge about the Kulbhushan Jadhav incident but went on to reiterate that they re- lease prisoners on completion of their terms even when no reciprocity is shown by the country of those prisoner and that they were “proud of our constitution” and the Court had directed the Centre to release andrepatriate 61 Pakistani prisoners from Indian prisons. Thus it can now only be hoped that Pakistan maturesabout the issue and releases Kulbhushan Jadhav, and the Indian government should in the meantime leaveno stone unturned in their efforts, either by diplomatic means or otherwise, in ensuring that the life of theirnational is saved. *************** Page 13

Libertatem Magazine - Edition 28PNlIaTnI Asayog and itsBy Shubham PatelNITI Aayog, which also stands for National Institution for Transforming India is a think tank establishedby the BJP government lead by Narendra Modi. It was brought into existence after the recommendationof the Independent Evaluation Office which suggested replacing the planning commission by some sort of“control commission”. The result of these recommendations was that the 65 year old structure of the plan-ning commission was supplanted with NITI Aayog. The basic aim of NITI Aayog was to bring up the par-tition of various state governments in the decision-making process, design strategic and long term policiesand programmes for the Government of India and also to provide the Centre and States with relevant tech-nical advice. The Finance Minister Arun Jaitely pointed out that the basic reason for redundancy of plan-ning commission was its focus on the command economy structure which was of no relevance since Indiais comprised of various states at various different levels of development and the ‘one size fits all’ approachto the economic planning would be obsolete. [PR Ramesh, ‘We will use every provision in the Constitutionto push reforms’, Open Magazine, January 09th, 2015]. This takes a step further in bringing about the spiritof cooperative federalism as opposed to the Nehruvian concept of centralized planning.The Prime Minister of India, Mr. Narendra Modi while delivering his speech in Kozhikode on September24th, 2016 pointed out a vision for India, the changes he would like to see in the times to come. The visionhe proposed included the points of consideration related to removal of poverty, providing equality, afford-able and accessible justice, cleanliness, removal of corruption, enhancement of employment, elimination ofatrocities on women, and a country full of hope. NITI Aayog while making its plan took the above men-tioned points into consideration and from it made a plan that centers and aims to transform India into “aprosperous, highly educated, healthy, secure, corruption-free, energy-abundant, environmentally cleanPage 14

Top Storyand a globally influential nation by 2031-2032”. The action points released by the NITI Aayog included a 15 yearlong vision followed by a 7 year strategy and a 3 year action agenda.The PlansThe proposed fifteen year long vision plan projects more than threefold growth on the economy of the countryfrom Rs. 137 Lakh Crore in 2015-16 to Rs. 469 Lakh Crore by 2031-32, which is at an assumed growth rate of 8%per annum. It further provides for a proposed increase, three folds to be exact, in the per capita income by the endof 2031-32 i.e. from Rs. 1.06 lakh in 2015-16 to Rs. 3.14 lakh in 2031-32; it further goes on to claim that the same willenable access to two-wheelers or cars, air conditioning, and other white goods for “nearly all” in the New India.[Dipti Jain, Niti Aayog needs to sell policies not fantasies, Live Mint, April 27th, 2017].The three-year agenda includes steps to check tax evasion, expand tax base and simplification of taxation system,along with institutional mechanism to promote competition. The Aayog also provided for strategic disinvestmentin 20 state owned loss making companies, bringing down the land prices and to make housing affordable. In termsof agriculture the plan provided for doubling the incomes of farmers by 2022 and raising the productivity throughincreased productivity and enhanced irrigation. In terms of energy the plan proposes that by 2022 electricity beprovided to each household, black carbon be eliminated, LPG connection be given to all BPL card holders etc. Theplan goes on to touch almost all the sectors of importance be it health or education. [NITI Aayog, India 2031-32:Vision Strategy and Action Agenda, April 23rd, 2017].The goals and the points which were put forward by the NITI Aayog are of such nature that the importance andnecessity of its implementation can hardly be denied. However, the goals are of similar nature with the ones thatwere pursued by the previous governments too; but the outcome of the goals of the previous governments fellshort because of two major reasons- insufficient implementation done by the government or flawed strategy sinceinception. The plan provides for the tripling the terms of the economic growth and per capita income of the na-tion. Although the claims are based on the idea that China was able to achieve the same in their last 15 years, thescenario needs a little more indigenous approach and considerations. The scenario of per capita income and thethings attached to it would become true only if there is an almost perfect equality in income of the masses, how-ever this homogenous nature is still a dream too far-fetched in the Indian scenario. As according to the economicsurvey of the Household Survey of India’s Citizen & Customer Economy (ICE 360 survey) only the top 20% earnclose enough to the present per capita income and they hold the net share of 44.9% in terms of the national house-hold disposable income. The lowest 20% earn around Rs. 14,850 which amounts to almost 1/10th of the per capitaincome.[Pramit Bhattacharya, India’s richest 20% account for 45% of income, Live Mint, December 02nd, 2016]. Ininstances of such grave income disparity, making claims and goals of a threefold increase in general and availabili-ty of “white” goods seems a little too farfetched and based on assumptions.NITI Aayog was also to formulate a 7 year strategy along with the vision for 15 years and an action plan for threeyears. Although, the action plan and vision have been floated, the strategy is yet to be formulated or publicallyannounced. The necessity of the strategy cannot be undermined as for any plan to become successful, there needsto be a strategy and an action plan in place, which however is lacking in the present scenario.The proposed three year plan was to replace the planning commission and take effect from 2017-18 to 2019-20. Theplan has turned out to be a plan for expansion in every region named under it be it agriculture or jobs, makingit more of a “wishful document”. According to Rajesh Mahapatra, perhaps the lack of the strategy has led to thefirst of the blunders i.e. “putting the cart before the horse.” [Rajesh Mahapatra, PM Modi’s vision of a ‘new India’needs substance not NITI Aayog’s ‘goodie bag’, The Hindustan Times, May 01st, 2017].According to Pranob Sen, an economist who has spent 15 years in the Planning Commission, the ‘sabka sath sabkavikas’ slogan of the Modi government is similar to that of Indira Gandhi’s ‘garibi hatao’. Although both are over-reaching, in case of Indira Gandhi the policy makers defined the term poverty before going on to plan a modelfor reaching a specific target; while in the present case much to the contrast the NITI Aayog has failed in provid-ing substance to Modi’s vision. [Rajesh Mahapatra, PM Modi’s vision of a ‘new India’ needs substance not NITIAayog’s ‘goodie bag’, The Hindustan Times, May 01st, 2017].The plans and goals made by the NITI Aayog are by all measures very important for development of the nation asa whole; they touch upon each area of importance and provide for the necessary levels which should be reachedwithin a specific time limit. However it can also not be denied that the same goals were and will be pursued bythe governments which have come in the past and will come in the future. The action of the previous governmentsfailed due to lack of strategy and proper execution, for the plans to succeed these lacunas should be avoided andtreated. The lack of the 7 year strategy is also one of the major concerns, which needs to be corrected soon; other-wise, in spite of perfect execution, it will lack the necessary precision and quality required for successful imple-mentation of the plan. Nevertheless, only time will tell that what the future holds for these plans. ******************* Page 15

Libertatem Magazine - Edition 28RaMteeSdnuTMkemrarraot:ry2rSe5tdrCikRePsFBy Vaibhav SharmaThe nation is galloping with a myriad of problems in the contemporary times. While the colossal issues ofpoverty, illiteracy and unemployment continue to rattle the nation there have been movements associat-ed with regional imbalances and backwardness in development. Such situations have been witnessed inNorth-Eastern parts and the ill famous ‘Red Corridor’ of the nation. The ‘Red Corridor’ consists of the 100districts across states like Chhattisgarh, Jharkhand, Odisha, West Bengal, Andhra Pradesh, Maharashtra,Karnataka, Bihar and Telangana which have seen the Maoists violence. The recent attack of Maoists at KalaPathar in Sukma district of Chhattisgarh which led to the death of 25 CRPF personnel has served as a grimreminder for the gravity of the situation. The Maoists attacks have been a regular phenomenon in the recentpast with memories of dreadful ambush at Dandewada last year still afresh. The problem of Maoist terror-ism is one of the most gruelling question which continues to question both the policy of Central as well asthe State governments, as regards the solution to this regional cause. The task of the administration of lawand order in these districts have been that of state police along with Central paramilitary forces in the timesof trouble. The attacks which primarily stems from the acute backwardness of these areas have seen largetoll of the lives of security forces in the attacks. While a vast majority of the martyrs are associated with theCRPF 74th Battalion, which was attacked on 24th April.The history of the Maoists movement is connected with the Naxalbari Revolution of 1967 which saw theseeds of the Maoist philosophy of class conflict sown in India. It frowned upon the state establishment asperpetuators of class exploitation and anti-poor systems. While the first phase of the movement saw thespread of this cancer across the nation, careful planning and a spate of developmental schemes targetingthese areas saw the restriction of the major portion of the menace to states of Chhattisgarh, Jharkhand, Odi-sha and Andhra Pradesh. Over the years, the state governments especially in Andhra Pradesh have learntto utilize funds in an appropriate manner and ensure the inclusion of the poor tribals in the developmentalprocess as well. It has been complemented with zero tolerance towards the Maoist attacks and setting upspecialised teams of the state police to tackle the new age terrorism. The ‘Greyhounds’ of Andhra Pradeshhave been highly successful in their anti-Maoist operations of pushing the insurgents deeper into the forest-ed areas. There is a visible change in the level of infrastructural development and supply of basic amenitieswhen one enters Andhra Pradesh from the state of Jharkhand. It is ironic that the creation of the states ofJharkhand and Chhattisgarh was done on the pretext of regional upliftment, but the same has failedPage 16

Top Storymiserably to solve the problem. Though the state of Chhattisgarh, since its 17 years of history has seen a rulingdispensation govern for a vast majority of 12 years, the political stability has not helped the cause either. The majorfactor responsible for the failure of the state to solve the menace of Maoist violence has been the lack of the polit-ical will of the state governments to search for any amicable solution to this critical problems. The state govern-ment has not only failed to correct the lopsided development of the selected areas, but has also not been unable toinclude the poor and tribal in the ambit of development. They have only relied on the Central government for thevast gamut of funds in the name of development, a majority of which falls victim to the widespread corruption andis unable to have much impact on the grassroot level.Changed Character of Maoist MovementThe tenants of the Maoist movement which began in the late sixties have undergone a sea change from its earliercharacter of being philosophy driven. The nature of the movement and the cause of Maoism arising from the socialphilosophy of class exploitation has receded in its ideological moorings. The focus of the movement in the moderntimes, has been more on bloodshed and attacks on state establishments than, earlier focus on intellectual learnings.The fact can also be the result of the demise of the stalwarts like Kanu Sanyal, Charu Majumdar, etc. who directedthe movement in the nebulous years. The present creed of leaders don’t have that depth neither in philosophy norhas the patience to build up the mass momentum for the desired social change. The result has been the focus onkilling more people rather than creating awareness among the masses for the need to revolt. The brutal killingsof the innocent villagers on the fear on being informers and the lootings of villagers to finance the movement ofsmacks of banditry rather than social upliftment of the people. The thrust of the government on targeted develop-ment of the Maoist affected regions have eroded the social base of the movement with villagers and tribals realis-ing the importance of being the part of the mainstream and are disillusioned by the utopian struggle of Maoist forthe creation of a classless society. The frustration of the Maoists could be gauged from the fact that the 24th Aprilattack at Sukma was conducted by more than 300 insurgents at battalion of 150 CRPF men. They have also realisedthat the end of the movement is near andthus, have resorted to mass attacks rather than earlier tactics of guerrillawarfare.Many Dimension of ‘Maoist Problem’The entire problem of Maoism in India has multitude of layers to it and must be looked at, in combination of theseforces. From the point of view of politics, it is a reflection of long term state inability to align a vast majority of thepeople to the mainstream to provide them adequate benefits for the overall development. It is also a response ofthe innocent tribals whose lands have been taken away by the state government on the pretext of infrastructureprojects and mining activities without adequate provisions for their compensations. Another facet to the same hasbeen the sly brainwashing of the gullible peasants by the Maoist leaders to provoke them to take up arms againstthe state and fight an impossible war. The acute corruption and the police atrocities in these areas have only Page 17

Libertatem Magazine - Edition 28accentuated the amplitude of the problem. The inability of the state to provide even the basic facilities ofprimary education, healthcare and Public Distribution System (PDS) for the food grains has been chief fac-tor in forcing the poor to take part in this violent struggle for survival. It is a blot on the entire nation that inspite of the fact India is one of the biggest economies in the world, some citizens are still tempted to resortto weapons (albeit under the influence of unscrupulous leaders and foreign funding) in order to attain theirjust share in the phenomenon of development.Response of the GovernmentThe Central Government in its response to the recent attacks on CRPF has been both prudent and calibrat-ed. The government has wisely negated the need to deploy army for the counter Maoist operations in thenation. Though the army is better equipped both in terms of weaponry and training to tackle the Maoistviolence, but the rational against their use is two folds. Firstly, the fact that Indian Government has consis-tently termed the Maoist problem to be an ‘internal problem’ calls for the use of the paramilitary forces andnot the penultimate state force. The insistence of it being an ‘internal disturbance’, also negates the need topoint out the involvement of any foreign power towards the same at the international arena. Secondly, theMaoists insurgents are essentially Indian citizens who have been disgruntled to such any extent that theyhave resorted to arms to attain justice. The use of Indian Army against its own citizens in various statesmight heighten the present problem. The government has rightfully scaled up the funding of the roadand bridge development projects along with the railway project to connect the marginalised sections ofthose areas with the mainstream. The state governments have also been advised to root out corruption andensure time bound completion of the projects. The Indian government has since 2009 followed a policy ofdevelopment and maximum possible restraint in order to win over the poor and impoverished sections ofthe state.The Road Ahead…The recent attacks have been a big setback for the entire nation in its quest to solve the Maoist problem,but the government is determined to change the present state of affairs by its allocation of about 3,270crores for the development works in the Maoist affected areas of Chhattisgarh. These projects have beenaimed at bringing the people closer to the phenomenon of ‘development’ thereby raising their standardof living. The connectivity with road and railways will pave way for the social infrastructure like primaryschools, dispensaries, post offices and banks. It will increase the visibility of the state machinery and reapthe benefits of social inclusion for the people. The road projects like 56 km Dornapal-Jagardunda routeand 78 km Sukma-Bhejji is bound to bring about a sea change. The railways has recently started Jagdal-pur-Vishakhapatman link with 24 hour work on the ongoing 3500 crore Jagdalpur-Raipur stretch. Theseprojects will ensure that, the decades of isolation is removed and people benefit due to increased trade op-portunities and lower prices of goods. The Central government is also planning to upgrade the training andequipment for the paramilitary forces to raise their operational strength. The demonetisation has struck atthe terror funding of the Maoist problem and the cadres are suffering from cash crunches. It is hoped thatthe political will and holistic development of the backward areas are able to bring them at par with the restof the nation. If the poor and marginalised villagers of Maoist hit areas, are able to lead a life of safety andattain social development through concerted state efforts and transparency in the system, the Maoist prob-lem could be lead to rest for the perpetuity. ***********Page 18

Expert Contribution At the verge of implementation, Goods & Service Taxhere’s what all one needs to know about Advocate Kanishk Agarwal, founder CriTax corp and IBAPWe all have been wondering what is GST ever since its inception,haven’t we? People in the nation have been quite curious as to howGST, undoubtedly the most important Indirect Tax Amendment sinceindependence, shall roll out. The wait is now about to get over aswe proceed towards its implementation most likely with effect from01.07.2017.GST is one comprehensive indirect tax for the whole nation, whichshall make India one unified common market to manufacturers andconsumers throughout the country. The Constitution Amendment Billfor Goods and Services Tax (GST) was approved by The President ofIndia post its approval by both the houses of the Parliament (RajyaSabha on 3 August 2016 and Lok Sabha on 8 August 2016) and wasratified by more than 50 percent of state legislatures.The main purpose to bring GST is to make the tax base comprehen-sive. Therefore, the ideal preposition shall be to bring all goods andservices within the ambit of GST and allowing facility of seamlessInput Tax Credit.GST shall prove to be a game changing transfigure for the Indian economy by composing a unified Indian market andreducing the gushing effect of tax on the cost of goods and services. It will bring a huge percussion at the tax structure, taxincidence, tax computation, tax payment, compliance, credit utilization and reporting, leading to a complete overhaul of theprevailing indirect tax system.GST will have a far-reaching impact on almost all the aspects of the business operations in thecountry, for instance, pricing of products and services, supply chain optimization, IT, accounting and tax compliance sys-tems.Some of the advantages to be offered by GST are briefly explained below:1) Major Indirect taxes to be subsumed in one tax (GST): GST shall subsume major indirect taxes making life very easy for theconsumer. Consequently, cost of complying with various Indirect Taxes that shall be subsumed in GST shall also be saved.2) Greater competitiveness in the market: The burden of taxes shall shift from manufacturers to consumers and hence, man-ufacturers will be free to explore more, with more freedom. Therefore, there shall be more competitiveness in the market.There shall also be reduction in transaction costs of doing business, which would in the long run lead to an enhanced recre-ation for the trade and industry.3) Uniform tax rates: GST Regime will ensure that indirect tax rates and structures are common across the country. The VATrates that were cut down by some of the states to attract more people to buy their product can no longer do so. All states shallbe at equal parlance now.4) No confusion: All confusion regarding what is a manufacturing or what is a service activity will be eliminated. All eco-nomic activities will be “economic activities” only and will be taxed. There will be no taxes on taxes. There will only be oneIndirect tax that is GST.5) Freeing up: State restrictions and levies often do not allow free trade and have complicated e-commerce routines. Somesellers are not able to ship goods to some particular state due to some restrictions of forms/compliance etc on goods abovecertain amounts.. All this will end in GST Regime.However, with pros come cons too. Here is what the law makers still need to consider:1) Increased monopoly of centre: The autonomy of state shall be compromised as the role of the Centre increases. Centre shallfix the percentage of revenue to be shared. Some of the states might even suffer from a loss on the account of tax sharing.2) Burden on tax payers: GST is definitely about reducing the cost of manufacturer thereby it shall put burden on consumeras tax credit of GST shall be recovered ultimately from customers.While all the pros and cons are just the assumptions and anticipations of the statements of the government, we are still look-ing forward to the final GST Rules and hoping that GST shall provide with corrective measures for the loopholes which weare carrying from last many decades. ************* Page 19

Libertatem Magazine - Edition 28 Parley with Adv. Kanishk Agarwal, Founder of CriTaxCorpPlease tell us something about your pre-law school days. What motivated you to take up law?I am a Delhight. My schooling was from Bal Bharti Public school, Delhi and graduation from Indraprastha University.Delhi where I did my 5 years integrated law course of B.A. LLB (H).I hail from a family of professionals and I always wanted to do something in taxation field in earlier days but I alwaysknew I never wanted to do CA as it will be really boring for me. Law intruded me because of the power of deep diveinto the understanding of the subjects, so when the opportunity of doing law came before me it wasn’t a hard decisionat all.Please share your law school experiences with our readers. Were you always inclined towards corporate sector?Looking back to the college times, they seem so distant yet I can remember it vividly. I have learned a lot from my col-lege life, as I was a very shy boy in my school days, and so got a lot of exposure in my college life. I had always beenan average student but was an active volunteer in organizing moots, debates, college events and the best was, orga-nizing the college trip for three consecutive years where I had the nightmare of handling 300 law students. However,the exposure was surely a blessing in disguise. I wasn’t not, initially I was very focused towards taxation laws, andeven though I was an average student in other subject I was always very active, and exceled in taxation laws, I guessthat was in my DNA.In your opinion, should a law student focus on moots, debates, paper presentation etc. and how is it important forshaping their future in corporate as well as litigation?As per my views, moots, debates presentations always help in shaping upon persons focus, it also enhances youresearching capabilities and your fear of public speaking is also taken care of, however litigation, facing judges in realtime in litigation work, is very different form the moots court competitions and a person who cannot think on theirPage 20

Parley with the Piratesfeet can never do well in litigation. As for the corporate side, it doesn’t help much as moot courts presentations aremore related towards shaping one into a litigating lawyer rather than a corporate lawyer.Is there any option for law students other than Litigation or Corporate Jobs?It depends upon one’s own perspective, Taxation, IPR, Criminal and there are many other great field which are therefor any lawyer to explore, I even explored a new field for myself which came out of passion i.e. Indian bare acts pactmobile application which is greeted only to the law field but is not related to litigation or corporate field.You have very rich records of experience ranging from practicing Tax Law with Mr. A.K. Batra to PwC. Did such avariegated experience give you a strategic edge over others who stuck to the same bracket?Yes, I agree that working in different area of field gave me an edge of working over others because when I am pitch-ing to a client or draft an agreement or even formulating strategy in a litigation matter I always keep these three mostimportant field of laws which are applicable to nearly every transaction i.e Crimination, Taxation and Corporate.However, everything has its own sweet and bitter bites working in all three fields also sometimes confuses public atlarge as to which field I specializes in, to conclude I never regret my decision on jumping from taxation to criminaland criminal to corporate because I have learned about best of all three worlds and there is no monotony of work inour office because of that reason only.You hail from a ‘non NLU’ law school. Is there any inherent bias between students of National Law Schools andother law schools?I personally have not faced the biasness, I hail from a non NLU college but that still didn’t stop me from entering intobiggest consultancy firm of the world that is PwC, however I do see that kind of race or bragging when it comes toentering into corporate law firms but at litigation it never mattered and it never will.After PwC, you started CriTaxCorp. Could you please share with our readers what motivated you to found the com-pany and the vision behind founding CriTaxCorp.Just to clarify I left PwC because the work in all big4 get monotonous at one point of time and I wanted to make myown name in the legal industry. Love for criminal law also pushed me into taking the plunge of leaving PwC andjoining criminal law litigation, initially I learned under the curtilage of Mr. Gupta senior advocate there after I workedunder the office of Mr. Subhash Gulati and Ma’am Seema Gulati taking experience under criminal law and when Iwas also getting some work from my own network I took blessings of Subhash Gulati sir and started my own lawfirm Critaxcorp.(Laughingly) Our seniors always say that when you have 10 to 15 files of your own then you can start your ownpractice, first 6 months were really tough because you have a lot of time and less work but my networking stills payedme off and work started pouring in. It was my father who motivated me, I got huge support from him as he neverstopped me from taking my own decisions so that I can learn and take experience in different fields, he has told mea secret recipe that I should always follow my heart with some amount of hard work and the dish in the end is goingto be just perfect! He has taught me that I should never be scared of taking any decision which I believe is right, whatmore can happen you might not get success but u will gain a lot of experience in your life, which matters the most. Ibelieve that from our experiences we learn a lot, even though you fail, and when I was planning to open a new firm hesupported my decision and that was the most promising support for me to start my own law firmWhat is your take on the legal entrepreneurship in India? Libertatem Media Group is itself a new organizationfounded in 2015 and similar to it there are various other organizations that started recently. Do you think there isany ample amount of growth in this legal business sector?I strongly belief that legal entrepreneurship is going to be a disrupted field in the law I always feel pride callingmyself a legapreneur (legal = entrepreneur) after ideating my law app for lawyers that is IBAP, I am taking the samefurther and hopefully next month a new version will be launched, I really believe in the idea that law should be com-bined with technology to ease up the come up with innovative ideas which made me come up with the idea of IBAPand now I have also ideated a mobile app for sensitization of sexual harassment at workplace wherein I have used mylegal expertise and combined it with technology, so yes legal entrepreneurship is defiantly is going to pave a new eraof lawyers.As it is said, in litigation, you have to struggle a lot for the first 5-10 years. As a result of which, litigation orientedstudents who are not from an affluent family background or who from a middle class family studying on educationloan give up their dream of litigation as they cannot sit idle for the initial years or can’t work at a very low salaryfor few years. Even in law firms, graduate students are offered Rs.17,000 pm in a city like Mumbai and Rs.5,000 to Page 21

Libertatem Magazine - Edition 2810000 in Ahmedabad. A 12th Pass student who joins a BPO earns Rs. 20,000 pm which is more than a law studentwho spends around 15 lakh in 5 years only to get a job offering Rs.5,000 to Rs.17,000. What do have to say regard-ing this? Do you think aspiring law students will really aspire for law once they know this fact? Do you think thereshould be some sort of ban on private colleges who advertise during the admission period stating 100% placement ora false placement records which lure aspiring law students?To answer the first part of the question I think if you have to vision plus passion then struggling for initial 3 to 5 yearsis a cost which one has to pay, why the salary/compensation in the litigation area is very low because the seniors arethe one who are giving the exposure to the lawyers which they can never get with their own clientele also one has tokeep in mind that litigation seniors always encourages there juniors to take up assignments on their own which helpsin learning and building your own practice at the same time, that is why the pay scale in litigation is low. I learned thesame way and I think that is what every lawyer need to do, you need to burn yourself for the first 3 to 5 years to castyourself into a successful lawyer.To answer your second part of your question the career graph of a BPO student might be better than a law student inthe first five years but a lawyers gains after the first five years of experience can be 5 to 10 to 20 times of that of a BPOemployee, depending upon the skills of a lawyer, as I said in the first part of my question; Vision and Passion are twoimportant characteristics which a person should have.To answer the third question, to use workings like 100% placement in private organizations should be put to a check ifnot banned as there will be no batch where every law student would want a corporate job, and no college is ever ableto get litigation job to every student. Law is very precise so one should defiantly use words cautiouslyWhat would be your piece of advice to aspiring law students who are preparing for CLAT and confused which lawschool to prefer after CLAT?At first at my time CLAT was not an option, so I don’thave the first-hand experience for the same, as per me agood law college do help in strengthen your legal foun-dation but no matter where you did your law from itsyour capabilities which takes you a long way specially inlitigation. Rest as I said earlier it never stopped me fromgetting a job at PwC.What would be your advice to young law students whoare confused between Corporate Job and Litigation?The best thing to do is opt for as many internships asthey can to get a better understanding and gain practicalknowledge, Firstly, they should understand the wholeconcept of a subject matter, for eg. Taxation is a subjectwhich is either really liked or totally disliked by lawyers,so one needs to understand and explore to see if they have interest in it or not. Secondly, as for Corporate, it is verywide field which ranges from drafting of agreements to regulatory compliances to transaction advisory. It is a fieldwhich requires round-the-clock–work, with alluring packages, so one need to understand exactly what they wantwith respect to work-life balance or money, in litigation it only takes two or three internships for one to understandwhether litigation is his or her cup of tea or not, some love the rage of arguing in the courts and some hate it becauseof the insolvencies of sitting ideal in the court or roaming in scoring heat. I would like to end this question by sayingthat you need to jump in the water to see whether you can swim or not.What would be your advice to budding entrepreneur of legal sector?From my personal experiences, I would like to tell them that in your initial days it would be hectic and as I am aworkaholic, I have worked round–the-clock on my application day and night, but one shouldn’t be scared of workinghard because it results are always fruitful. Whenever I get time I read articles for better understanding of technology,but I have adapted all this as a hobby and so it is not a burden. I believe that if things are planned and one knowshow to manage time, they can easily coordinate their personal and professional life, like I do. However, one needs toprioritize their field of law, interest and goal with their time to follow a focused path to their success. I am still exper-imenting to know the ultimate path, but that is the fun, provided you balance the fun with risk. Have the courage toexperiment and do something out of the box, I would say don’t just leave everything and get in to legal entrepreneurbut if you have any idea put efforts where your thoughts are and if it carbs out well peruse it. But never forget thatyou are a lawyer first and then an entrepreneur in even legapreneur legal comes first and then entrepreneur. ***********Page 22

EditorialsTCTBhheaeanbttrPuiHorMaliiesotsisTcqroau-LneesFgciaealnsBdceaodt: tleBy Nada Zaim Faruqi (Aligarh Muslim University)With the number of cases pending in the Supreme Court of India, it would not be an overstatement to assert that the‘test of time’ is a concept foreign to Indian cases. Indian judiciary has, to its credit, cases stretching across centuries.One such case is that of the Babri Mosque that has had new developments from time to time. It has had politicians,lawyers, activists, academicians, etc.; wrap their heads around the issue for years and base their careers on it.Constructed in 1528 (according to a widely held belief) by Mir Baqi on the orders of the Mughal emperor Babur, themosque became a bone of contention between the Hindu community that claims that it had been built on the foun-dations of a temple which was the birthplace of Rama in Ayodhya; and the Muslim community that denies theseclaims. In 1853, first incident of communal violence was recorded at the disputed site. Thereafter, in the year 1853,British officials erected a fence allowing Muslims to use the inner court while permitting the Hindus to use the outercourt. 1885 saw Mahant Raghubir Das seeking permission to build a canopy on Ramchabootra but his plea wasrejected by the Faizabad District Court. Even though India attained independence from the British rule in 1947, theinternal strife continues to this day and has in fact escalated several times. In 1949, idol of Rama surfaced which, theMuslims claimed, was placed by the Hindus. This led both the parties to file civil suits. The Government declaredthe area as ‘disputed’ and locked the gates. Amidst the first title suit by Gopal Singh Visharad seeking the right toworship the idols, the State of UP appealing against the injunction order, Ramchandra Paramhans filing another suitand later withdrawing it, Nirmohi Akhara entering the scene and filing the third suit and UP Sunni Central Boardof Waqfs moving in to claim possession of the mosque and the adjoining land; all these events stretching acrossthe period of 1950-1961, a new tangent was added to this communally charged politico-legal battle. In 1989, anoth-er fresh suit was filed by a former VHP vice-president for the declaration of title and possession followed by VHPlaying foundations of Ram Temple on the adjacent land. Following the partial damage to the Mosque done by VHPvolunteers, the building was brought down by the volunteers/supporters of BJP, VHP and Shiv Sena on 6 December,1992 which led to nation-wide communal tension which saw near about 2,000 people die. In October, CBI filed acharge sheet accusing Advani and others of conspiracy. In December 1993, two FIRs were lodged, one against “un-known karsevaks” and the other alleging BJP leaders L. K. Advani, M M Joshi and others for ‘communal’ speeches.In 2001, Special CBI Court dropped proceedings against accused persons L K Advani, M M Joshi, Uma Bharti, BalThackeray, etc. After the Allahabad High Court order, CBI moved the Supreme Court against the HCs order. In 2015,the Supreme Court issued notices to L K Advani, M M Joshi, Uma Bharti and Kalyan Singh in response to a pleanot to drop criminal conspiracy charges against the accused persons. On 6th April, 2017 the Supreme Court soughttime-bound completion of the case and the latest development on 19th April is that the Supreme Court revived thecriminal conspiracy charges against the accused persons under Section 120 B of the Indian Penal Code.[Timeline courtesy: Indian Express & Livemint]Hatred is counter-intuitive to the idea of true religion. Let India witness peaceful coexistence in the face of whateverthe Supreme Court rules in its decision on the Babri Mosque. The pluralistic ethos of India would have its D-Daywhen the sellout elements in either of the religions do not have the upper hand to hijack this situation to further theirown petty gains. ********** Page 23

CHaaurmseinogftHhienduismLibertatem Magazine - Edition 28By Mohammad Azeemullah (AMU Alumnus & Lecturer at University of Al-Asmariya, Libya)Never had been national identity as much adhered to religiosity of Hinduism in modern history of India as that ofnow. Never had been RSS doctrine of faith as much aggressive in the country as that of contemporary time. The (un)godly onslaught has only accelerated after the ascension of an ascetic to the throne of Utter Pradesh. It seems as ifone is not breathing in congeniality of democratic environment but in tyranny of a theological state. The ferocity ofreligiousness has gone to the extent that human is reduced to be worse than animal and love has become a crime.For long we had been led to romance with Hinduism as a ‘cultural way of life’ de-toxifying its system of beliefs as a‘religion’. The Supreme Court had defined Hindutva as a “way of life.”“These words (Hindutva and Hinduism) are used in a speech to emphasize the way of life of the Indian people andthe Indian cultural ethos,” the Supreme Court had said in 1995. Even the fundamentalist within the establishment,most notable among them is the Chief Minister of Utter Pradesh, Yogi Adityanath who confessed the definition ofHinduism as legitimized by Supreme Court of India.He said, ‘The idea of a Hindu Rashtra is not wrong. The Supreme Court has clarified that Hindutva is not a religion.It is a way of life.’ (Times Now Apr 06, 2017) Hinduism is acknowledged to embrace a wide range of adherents offaiths in its liberal stream of thoughts granting equal opportunities to individuals to practice their own respectiveways of life.Undeniably, the broad spectrum of Hinduism encompasses all those who are God-fearing and all those who areagnostics magnifying its primacy beyond a horizon. No other religion in the world has been celebrated with so muchabundance of its liberal values as that of Hinduism. And Hindus since long had been proud of that. Tragically, in re-cent time, the circumstances that are leading to the occurrence of violence against Muslims in the name of protectinga specific animal misspells the long-cherished ideals of Hinduism and its enlightened values.BJP in its intoxication to extend power is only using Hinduism as a political tool without its spiritual sanctity littlerealizing how its divisive agenda is bleeding the vitality of Hinduism and leading country to the course of irrationalchaos and conflict. From superficiality of outlook, BJP and its affiliates may enjoy the fruits of political harvest con-sidering themselves as the custodian of Hinduism but they are underneath damaging sacred ethos of Indian cultureharming the cause of Hinduism that Rishis (sages) for centuries had evolved and fostered.Electoral successes one after another must not blind the ruling party to sow the seeds of hatred in one communityagainst the other and cause irreparable damage to the country in the long term. The foundational values of Hindu-ism must not be traded for cheap populism by fanning emotions of social frictions. Psychological scar is difficult toheal if wound is deep.India had been historically a country for millions of people of all faiths. It is as much a country for Hindus as thosefor Muslims, Christians, Buddhists and Sikhs. However, the kind of ill-disposed political narrative expressed by theright-wing party and perpetuated on the ground by affiliates create the impression that India is only a country forHindus. Those who oppose this typically-new-generated theory of ethics are accused of going against majoritarianwishes and stand to be condemned as anti-national.If such irrationality of political expansion continues with so much of obsession with skewed interpretation of Hin-duism and with so much of breeding fear in the weaker sections of society, India moves a step back in regression.Igniting emotions in the name of religion is the cheapest transaction to make to hold on to power but the reverse isdifficult to follow. The British empire did the same culminating the climax of India into division of both its body andsoul.Time is truly running out at a great expense to pay heed to the beauty of Hinduism…that is inclusive and receptiveto human values. Or the worst is already happening to cause harm to both India and its great faith. Promoting Hin-duism is not sin but doing so at the cost of the rights of a victimized class, particularly Muslims, robs Hinduism of itsspirituality. *********Page 24

TraonfsYfoouramthgasatiifnorsontmaTleKAratrtsoihtruiEmsdditomrieiarls By Mohammad Azeemullah (AMU Alumnus & Lecturer at University of Al-Asmariya, Libya)For long we have known Kashmiris as separatists, terrorists, stone-pelters and so on. The media too had sweepingjudgement about people of Kashmir in the same vein. To a reasonable extent, our apprehensive attitude toward themseemed genuine as bodies of our soldiers grew in number under attack by terrorists and stone-pelters continued tomarch streets with enemy’s flag.However, the recent sacrifice by a young army officer, Umar Fayyaz, from Kashmir demolishes the long-held nega-tive notion the nation had about people of Kashmir. His cold-blooded murder by militants reverses the antipathy ofcollective psyche in mind and rekindles the light of hope that all Kashmiris do not belong to the same flock.Lieutenant Umar Fayaz who was kidnapped and killed by suspected militants reminds us of many others like himwho stood up to the menace of terrorism and laid down their lives for a greater cause. More eloquently, the tragedyis not the only of its kind in which a Kashmiri youth has offered his life for the sake of the nation.In 2015, 37-year-old, Mohammad Altaf Dar, a sub-inspector, was killed in Bandipore shootout. He had receiveda tip-off that Lashkar-e-Toiba (LeT) commander Abu Qasim, would be meeting a group of militants in Bandipore.Altaf Dar and a few police officers were in a private car, pursuing a vehicle in which they believed Qasim and hisassociates were travelling. When they tried to intercept the vehicle, the militants fired at them.Dar was hit in the neck and abdomen. The injured officer who later succumbed to injuries had played a key role incounter-insurgency. (October 08, 2015, Indian Express) Undeniably, the cause for Kashmir can never be fought betterthan the Kashmiris by themselves. The stability in Kashmir can never be attained unless common men and womenreject violence and denounce terrorism as antithetical to the spirit of civilized living. Security induces prosperity,and in turn dynamic foundation of society is made. It is this desire of breathing in peace and harmony that has ledthousands of youths in Kashmir to come forward to join army in recent times.‘Nearly 19,000 Kashmiri youth have applied for recruitment in the Indian army, a development that assumes ma-jor significance as the separatists have been asking the people of the Valley to oppose the force.’ (Apr 04, 2017, TheHindustan Times) The people in the troubled state must understand the fact that violence never wins. It is defeatingthem every day. One should not forget that every wicked action leads to the wrath and displeasure of God.Separatism holds no future for Kashmir and its youths. Those who have gone astray are fighting a lost battle andruining the lives of their own families as well as millions of others. The unholy struggle for independence of Kashmirfrom India based on religious identity grants no ‘freedom’ in true sense of the meaning of the word.India is home to largest population of Muslims and offers a safe haven for them compared to their religious coun-terparts in other countries of the Muslim world. The fate of Iraq, Syria, Afghanistan, Libya, Somalia, Yemen shouldbe an eye-opener to the youths in Kashmir. The contemporary history of Muslim world is replete with hatred andblood.Bluntly, Muslims are enemy of Muslims in those countries spilling blood of their own religious fellow beings. Thou-sands have been maimed and killed. The violence continues unabated without any sign of hope and reconciliation.Tragically, peace remains a distant dream in the Middle Eastern region. Territorial integrity is a mess with varioussectarian groups fighting for supremacy.If at all struggle for independence is to be made in Kashmir, let it be for the cause of poverty, unemployment andcorruption. Let Fayaz’s sacrifice be an inspirational force in combating all sorts of social evil that infects the everydaystrenuous lives of people in Kashmir. The young officer’s martyrdom expresses transformational attitude of youthsfrom Kashmir and reiterates the nation’s commitment to eliminate terrorism from the valley. ********** Page 25

pIslitghhetr?e an end to thisLibertatem Magazine - Edition 28By Sarthak Sonwalkar (LAMP Fellow)Rational Ignorance has been defined as a concept where there is a chosen path to ignore something because the costof knowledge outweighs the potential benefits. Of everyday events which occur in a day in a city’s life, some qualifyas the events of “national importance” while others do not and end up being mere factual occurrences are eventswhich are to be just let pass by. As a nation we are eager to demonstrate our unity with the causes which we thinkare worth concerning enough to us, while we choose to discard many as obsolete or ‘routine’ which do not requiremuch of the ‘attention’ and perhaps as a nation they do not seem to cause much damage. However, the recentagitation by Tamil Nadu farmers in New Delhi perhaps failed to grab the collective consciousness of the people ofthis nation and seemed to be passed on as yet another protest by some aggrieved persons as it was made to seem anisolated event. The farmers from Tamil Nadu sat at Jantar Mantar in the national capital protesting to waive off theirloans taken from the nationalized banks, besides demanding up setting up of Cauvery water management board tomeet their irrigation needs. Though the protests ended after an assurance by the Chief Minister, the larger questionspertaining to the plight of annadata continue to hover.The issue of farmers’ suicide is a strong memory and a current event to every Indian, a large number of them be-ing reported every year across the country. The National Crime Records Bureau (NCRB) report states that for theyear 2015, Tamil Nadu, along with Maharashtra, Telangana, Madhya Pradesh, Chhattisgarh and Andhra Pradeshaccounted for 87.5% of the total suicides (11,026 out of 12,602) by the persons engaged in the farming sector. Thereport identifies reasons such as bankruptcy, farming, family issues, illness, drug abuse, etc. to be the reasons behindthe suicides, with ‘bankruptcy or indebtness’ and ‘farming related issues’ leading to majority of them. Further, asper the data, in Tamil Nadu, the majority of suicides had been committed by the agricultural laborers. Though theofficial data for 2016 is not available yet, but according to some experts, for the month of January itself, the numbersstood at 100.All the possible means had been employed during the protests at Jantar Mantar ranging from drinking of their ownurinals, carrying out funerals, putting skulls apparently of the farmers who had committed suicide, putting deador alive rats into their mouths as ‘rat breakfast’, wearing sarees or wearing mangalsutras (a sacred thread wore bya Hindu woman to signify her marriage) and then cutting them off to demonstrate how life of a farmer’s wife is af-fected after her husband commits suicide and that she is the one who suffers resultantly. Few of them even cut theirhands to signify ‘shedding of blood’ protesting against the ‘stepmotherly’ attitude of the Central Government.Page 26

EditorialsTheir acts demonstrate the larger consequences which follow when a household loses its sole bread-earner and poi-gnantly depict the grim condition of the farmers throughout the country.The reasons for the protests emanate from the drought conditions prevailing in the region, failure of north-east mon-soon the previous year which replenishes Tamil Nadu between October and December resulting in the loss of samba(winter) crop and importantly the long unsettled Cauvery river dispute which last year resulted in the loss of kuru-vai (summer) crop. When it comes to the constitution of the Cauvery water management board, there is reluctanceon part of both Karnataka and Tamil Nadu as they fear loss of their current rights and politics over the reservoir re-sultantly. Though during the protests at Marina Beach earlier this year as well the attempts had been made to garnerthe attention but the ‘national mood’ was then being guided by the larger than life narrative of Jallikattu.However, the sad bothering reality is that the matter was taken as of little concern by and large when it comes to the‘national politics’ even though the imagination event was sufficient to send chills to one’s body and the entire ideaof protests through the invocation of biopolitic shows how violable, helpless and vulnerable the body is during thetimes of distress where it has no recourse left, but to escape from the grim situation. The larger idea of the pro-tests however transcends the life of the farmers and takes into account the ones who survive such as the farmer’swife, which was done through wearing of sarees or mangalsutras, singing of funeral songs, et al. The catastrophesurrounding the survival ofmillions of marginal and smallscale farmers in the rural areashardly seems to affect the urbanmiddle class. To say the least,perhaps owing to the horridway in which the demonstra-tions were made the protestsmanaged to get some mediaattention.The indifference faced by thefarmers puts one in the colonialcontext where the famine codesand drought measures had littleregard or sympathy towards thecause of the deprived, while thefocus was on causing ‘mini-mum’ cost to the exchequer.Even after the independence thedrought and the scarcity codeshave retained their colonialstructure and they still aren’t‘right-based’ in nature. TamilNadu’s drought Code was lastamended in 1901 retaining its entire colonial structure. Further the absence of legal enforceability in these Codesrenders them toothless. The context in which the notion of providing relief by the state occurs puts everything to thebenevolence of the state. While relief packages and bail out mechanisms are asked for, it is ultimately to the stateto decide as to how much is “appropriate” for the situation and sometimes also resting on the fact that how gravethe situation is based upon the media attention and public outrage it faces. In this context it becomes crucial thatthe policy formulation by the expert bodies and the Central Government’s think-tank NITI Aayog involve the keystakeholder, i.e., farmers so as to avoid the gap which occurs. Needless to mention, financial institutions are neededto strengthen their support to the farmers, while also focusing on schemes such as crop insurance, et al.For the national narrative and the social media, the farmers have only one question to ask: what does the countrywant, a farmer with a dead morale and subsequently on a funeral pyre, and a skull then or food. I am sure the peopleof this country do not want the former. But, the very first step is to acknowledge, believe and comprehend that thereis a problem and come out of the flowery picture of lush green crops waving right before the harvests. If there is anend to the plight of the famers, we don’t know. We however know that everything can’t be put on the vagaries of thenature and the state and the central governments need to realize their responsibility, else the notion of ‘annadata’ isnothing more than a relieving concept to our mind, someone who is self-sufficient and is nothing more than an iconicfigure to us. How indifferent we can be, is now-a-days easy to demonstrate if for once we think beyond the culture of‘trending’ and a collective will to decide that what is and what is not concerning. However, the imagery of the maca-bre was no short of a powerful one and was it too much that they were asking for?************** Page 27

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Libertatem Magazine - Edition 28Supreme Court on WhatsAppPrivacy Policy MatterBy Swarnalee HaldarCase Filed By-Karmanya Singh Sareen and Shreya SethiFacts-The case is filed in the background of the WhatsApp privacy policy change, and points out how the appwill be collecting information of users, which will include phone numbers, names, user connections, us-age and log data, transactions, status, device and connection information, and sharing this with Facebook,which is the parent company. The apex court on January 16 had sought responses from Centre and Tele-com Regulatory Authority of India (TRAI) on a plea that privacy of over 157 million Indians has beeninfringed by social networking sites — WhatsApp and Facebook — for alleged commercial use of personalcommunication. The Delhi High Court had earlier restrained WhatsApp, an instant messaging application,from sharing with Facebook the user information existing upto September 25, 2016 when its new privacypolicy came into effect. The High Court, in its verdict in September last year had directed WhatsApp todelete the information/data of persons who opted out of the service before September 25, 2016 and not toshare it with social networking site Facebook or its group companies. The High court ad also directed theCentre and TRAI to examine the feasibility of bringing the functioning of internet messaging applicationslike WhatsApp under statutory regulatory framework. WhatsApp had earlier informed the high court thatwhen a user account was deleted, the information of that person was no longer retained on its servers. Cur-rently the case is being heard by a five-judgebench in the Supreme Court.Arguments1. The petition is looking at the issue of on-line privacy and asks for the state to step in.India currently has no specific law dealingwith user data privacy. It points out that inIndia with the internet gaining so many us-ers, more and more people are coming onlineand using these applications.2. The petition states, “It is also the responsi-bility of the State to guarantee and ensure theprotection of the personal and private dataand information of these millions of citizens,when they use such modes of communications to engage in conversations and exchange private and confi-dential data and information.3. WhatsApp, which is end-to-end encrypted by default, says no one can read messages being shared byusers. Interestingly, according to an Economic Times report, Facebook lawyer KK Venugopal also told thecourt, “Those who find the new privacy policy irksome or violative of their fundamental rights, can quit,”adding that users have full freedom to give up WhatsApp and Facebook. WhatsApp’s lawyers argue theprivacy policy change is in compliance with the IT Act.Current PositionThe case will next be heard on 15th of May 2017. The Court, however, said that it will look into this prelimi-nary objection at the time of delivery of the final verdict.Page 30

the courtroom Supreme Court Accepts CBIPlea, Refuses To Remove Lalu Prasad’s Charges By Swarnalee HaldarCase - State of Jharkhand through SP, CBI v. Lalu PrasadFactsThree separate judgments had been delivered acquitting 3 persons namely; Lalu Prasad Yadav, SajalChakraborty, and Dr. Jagannath Mishra on the ground of their conviction in one of the criminal casesarising out of fodder scam of erstwhile State of Bihar. The Appeal has arisen out of the three separatejudgments. In the wake of large scale defalcation of public funds, fraudulent transactions and fabricationof accounts in Animal Husbandry Department of State of Bihar popularly known as fodder scam, CentralBureau of Investigation (for short, ‘the CBI’) had been ordered by the to investigate corruption in publicadministration, misconduct by the bureaucracy, fabrication of official records, misappropriation of publicfunds by an independent agency. Lalu Prasad Yadav was prosecuted and convicted in RC No.20 (A)/96with respect to aforesaid period 1.4.1994 to 31.1.1995 relating to Chaibasa treasury. The charges had beenframed for commission of offence of criminal conspiracy punishable under section 120B read with sections409, 420, 467, 468, 471, 477, 477A of the Indian Penal Code, 1860 (for short, ‘the IPC’) and section 13(1)(c) read with section 13(2) of the Prevention of Corrup- tion Act, 1988 (for short ‘the PC Act’) where defal- cation/general conspiracy was alleged between 1988 and 1996 and included various treasuries of erst- while State Bihar. In the case against Dr. Jagannath Mishra he has been con- victed in RC No.20(A)/96 with respect to Chaibasa treasury in respect of mis- appropriation of Rs.37.70 crores for the period 1994- 95 whereas the prosecution has been quashed with respect to RC No.38(A)/96 relating to misappropria- tion of Rs.3.76 crores from Dumka treasury as against actual allotment of Rs.1.5 lakhs with the help of 96 fake vouchers in the finan-cial year 1995-96. Sajal Chakraborty had been convicted by Trial Court in RC No.51(A)/96 relating to Chai-basa treasury regarding Rs.39.92 crores misappropriation against actual allotment of Rs.4,09,750/- with thehelp of 580 vouchers, 4789 fake supply orders for the financial year 1993-94 on 14.7.2008 but acquitted bythe High Court in appeal. The prosecution has been quashed vis a vis Sajal Chakraborty in RC No.20(A)/96relating to Chaibasa Treasury and RC No.68(A)/96 relating to Chaibasa Treasury for misappropriation ofRs.37.62 crores during the financial year 1992-93 Page 31

Libertatem Magazine - Edition 28Arguments1. It was argued on behalf of Lalu Prasad Yadav, Dr. Jagannath Mishra and others that it was a case of only a single conspiracy and therefore there should be amalgamation of trials as per the provisions contained in section 223 Cr.PC. This Court opined that charges were not framed at that stage. It is for trial court to decide the prayer for joint trial. There were large number of accused persons. It was also observed that main offence was under the PC Act and conspiracy was an allied offence.2. It was submitted by Shri Ranjit Kumar, learned Solicitor General appearing for CBI that as the offenc- es relate to different treasuries for different financial years, for different amounts running into several crores with the help of different fake allotment letters, supply orders, different falsification of books of accounts, different suppliers, Article 20(2) of Constitution of India is not attracted as the offences cannot be said to be the same. Similarly the provisions of section 300 Cr.PC are not attracted. They are different offences and transactions. Reliance has been placed upon section 212(2) of the Cr.PC so as to contend that the period of charge for offence of misappropriation shall not exceed one year. There has to be different trials for different periods. Reference has also been made to sections 219, 220 and 221 of Cr.PC. There is difference between the same kind and the same offence.3. Question arises whether there is one general conspiracy pursuant to which various defalcations of different amounts have been made running into several years from different treasuries, by different sets of accused persons. Whether there could have been only one trial or more than one. Whether legal requirement is for one trial or more than one in such cases.4. Section 219 Cr.PC provides that three offences of same kind within a year may be charged together. It is apparent from section 212 read with section 219 that there have to be separate trials for different years covering the period of more than one year. Same kind of offence is a different thing than the “same of- fence” for the purpose of sections 219, 220 or 300. The modus operandi being the same would not make it a single offence when the offences are separate. If conspiracy is furthered into several distinct offences there have to be separate trials.5. One general conspiracy from 1988 to 1996 has led to various offences as such there have to be differ- ent trials for each of such offence based upon conspiracy in which different persons have participated at different times at different places for completion of the offence. Whatever could be combined has already been done. The court did not find any merit in the submissions made by learned senior counsel appearing on behalf of accused persons. The court observed that the doctrine as applied in civil cases has no application in criminal cases at all.6. The court questioned CBI that there was a delay of 113, 157 and 222 days in filing the respective appeals by the CBI. Applications have been filed for condonation of delay on account of the departmental, administrative procedures involved in for filing the spe- cial leave petition. It has been satisfactorily submitted that unlike the private litigant the matters relating to the Government are re- quired to be considered at various levels and then only a decision is taken to file special leave petition. The process of referring the particular file from one department to anoth- er is a time consuming process and decisions have to be taken collectively. The explanation offered by the CBI of movement of file so as to condone the delay so as to subserve the ends of justice, deserves to be accepted.JudgmentThe Court has ordered set aside the impugned judgments and orders passed by the High Court, allow theappeals and direct the trial court concerned to expedite the trial and to conclude the same as far as possiblewithin a period of nine months from today.Page 32

the courtroom The Supreme Court upholds death penalty for Nirbhaya convicts By Swarnalee HaldarCaseMukesh & Anr. v. State for NCT of Delhi & OrsFactsThe cold evening of Delhi on 16th December, 2012 could not have even remotely planted the feeling inthe twenty-three year old lady, a para-medical student, who had gone with her friend to watch a film atPVR select city walk 2 mall, Saket, that in the next few hours, the shattering cold night that was graduallystepping in would bring with it the devastating hour of darkness when she, along with her friend, wouldget into a bus at munirka bus stand to be dropped at a particular place; and possibly could not have imag-ined that she would be a prey to the savage lust of a gang of six, face brutal assault and become a playfulthing that could be tossed around at their wild whim and her private parts would be ruptured to give vent to their pervert sexual appetite, unthinkable and sa- distic pleasure. The six made the young lady to suffer immense trauma and as a consequence of which she died at a hospital in Singapore in spite of availing of all the possible treatment that the medical world could provide. The friend of the girl luckily survived. After getting thrown out of the bus along with the girl though accused tried to run over them but they saved them- selves by their slight movements. It was their good fortune that the night patrolling vehicle, a motorcycle, arrived and the said man, raj Kumar, pw-72, gave the shirt to the boy and contacted the control room from which a bolero patrol van came and they brought a bedsheet and tore it into two parts and gave a piece to each of the victims so that they could cover themselvesand feel civil. Then they took the victims to Safdarjung hospital where treatment commenced. The dyingdeclaration was elaborate where the prosecutrix has described the incident in detail including the act ofinsertion of a rod in her private parts. She also stated that the accused were addressing each other withnames like, “Ram Singh, Thakur, Raju, Mukesh, Pawan and Vinay”. Once the proceedings began the trialcourt came to the inevitable conclusion that the incident has been aptly described the prosecution witness1- the friend. His presence was further confirmed by the DNA analysis (As reported by LiveLaw). the of-fence under section 376 (2)(g) ipc, the sharing of common intention and the jointness in commission of rapeis has been established by the presence of all the accused in the bus; their action in concert as establishedby the dying declaration of the prosecutrix and the evidence of pw-1, presence of blood in the clothes of allthe accused, dna profile generated thereon being consistent with the dna profile of the victim. The accusedwere convicted vide judgment and order dated 10.09.2013 and on the very next day of judgment i.e. On11.09.2013, the arguments on sentencing were concluded. Thereafter, a separate order on sentence waspronounced on 13.09.2013.Counsel for the appellants as well as the learned amicus Mr. Raju Ramachandran contended that no effec-tive opportunity was given to the appellants to lead their defense on the point of sentencing as mandatedunder section 235(2) cr.p.c. and each of the accused was not individually heard in person on the question ofsentence. Learned amicus curiae, Mr. Raju Ramachandran submitted only the counsel for the accused wereheard and all the accused were treated alike irrespective of their individual background and were sen-tenced to death, which is in clear violation the mandate of section 235(2) cr.p.c. it was submitted that sec-tion 235(2) cr.p.c. is intended to give an opportunity to the accused to place before the court all the relevantfacts and a material having a bearing on the question of sentence and, therefore, salutary provision shouldnot have been treated as a mere formality by the trial court. Page 33

Libertatem Magazine - Edition 28Section 235 cr.p.c. deals with the judgments of acquittal or conviction. Under section 235(2) cr.p.c., where theaccused is convicted, save in cases of admonition or release on good conduct, the judge shall hear the accused onthe question of sentence and then pass sentence in accordance with law. Section 235(2) cr.p.c. imposes a duty onthe court to hear the accused on the question of sentence and then pass sentence on him in accordance with law.Section 354(3) cr.p.c. mandates that when the conviction is for an offense punishable with death or, in the alterna-tive, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for thesentence awarded and in the case of sentence of death, the special reasons for such sentence. It is well-settled thatsection 235(2) cr.p.c. is intended to give an opportunity of hearing to the prosecution as well as the accused on thequestion of sentenceIn case, section 235(2) cr.p.c. is not complied with, the appellate court can either send back the case to the sessionscourt for complying with section 235(2) cr.p.c. so as to enable the accused to adduce materials; or, in order toavoid delay, the appellate court may by itself give an opportunity to the parties in terms of section 235(2) cr.p.c.to produce the materials they wish to adduce instead of sending the matter back to the trial court for hearing onsentence. In the present case, we felt it appropriate to adopt the latter course and accordingly asked the counselappearing for the appellants to file affidavits/materials on the question of sentence. Consequently, vide orderdated 03.02.2017, the court directed the learned counsel for the accused to place in writing, before this court, theirsubmissions, whatever they desired to place on the question of sentence. In compliance with the order, Mr. Shar-ma learned counsel on behalf of the accused A-2 Mukesh and A-5 Pawan and Mr. A.P. Singh, learned counsel onbehalf of the accused Akshay Kumar Singh, Vinay Sharma and Pawan Gupta filed the individual affidavits of theaccusedArgumentsIs there something uncommon about the crimes which regard sentence of imprisonment for life inadequateWhether there is no alternative punishment suitable except death sentence. Where a crime is committed withextreme brutality and the 422 collective consciences of the society is shocked, courts must award death penalty, ir-respective of their personal opinion as regards desirability of the death penalty. By not imposing a death sentencein such cases, the courts may do injustice to the society at large.JudgmentThe court explained that based on various case laws for awarding death sentences the court needed to analyze thenature and the manner of the act committed by the accused, and the effect it cast on the society and on the vic-tim’s family, are to be weighed against the mitigating circumstances stated by the accused and the scope of theirreform, so as to reach a definite reasoned conclusion as to what would be appropriate punishment in the presentcase- ‘death sentence’, life sentence commutable to 14 years’ or ‘life imprisonment for the rest of the life’ the courtexplained ; “ the diabolical manner in which crime was committed leaves one startled as to the pervert mentalstate of the inflictor. On top of it, after having failed to kill her on the spot, by running the bus over her, the victimwas thrown half naked in the wintery night, with grievous injuries. The brazenness and coldness with which theacts were committed in the evening hours by picking up the deceased and the victim from a public space, reflectsthe threat to which the society would be posed to, in case the accused are not appropriately punished. More so, itreflects that there is no scope of reform. The acts committed so shook the conscience of the society. Crimes like theone before us cannot be looked with magnanimity. Factors like the young age of the accused and poor backgroundcannot be said to be mitigating circumstances. Likewise, post-crime remorse and post-crime good conduct of theaccused, the statement of the accused as to their background and family circumstances, age, absence of criminalantecedents and their good conduct in prison, in my view, cannot be taken as mitigating circumstances to take thecase out of the category of “rarest of rare cases”. The court did not find any justification for converting the deathsentences imposed by the courts below to ‘life imprisonment for the rest of the life’. The court also added “the ac-cused may not be hardened criminals; but the cruel manner in which the gang-rape was committed in the movingbus; iron rods were inserted into the private parts of the victim; and the coldness with which both the victims werethrown naked in cold wintery night of December, shocks the collective conscience of the society” the present caseclearly comes within the category of ‘rarest of rare case’ where the question of any other punishment is ‘unques-tionably foreclosed’. If at all there is a case warranting an award of a death sentence, it is the present case.Learning outcomeThe statistics of national crime records bureau which I have indicated in the beginning of my judgment show thatdespite the progress 428 made by women in education and in various fields and changes brought in ideas of wom-en’s rights, respect for women is on the decline and crimes against women are on the increase. Offenses againstwomen are not a women’s issue alone but, human rights issue. Increased rate of crime against women is an areaof concern for the law-makers and it points out an emergent need to study in depth the root of the problem andremedy the same through a strict law and order regime. With this judgment, the court has ensured that the humanlust won’t be allowed to take such a demonic form.Page 34

the courtroom Disabled Persons may choose not to stand when National Anthem is being played By Jane MariaThe Supreme Court had made it mandatory for the National Anthem to be played in the cinema hallsbefore each film show starts. The Court, by the order of 30th November, 2016, had issued guidelines in theinterlocutory order as to how this rule ought to be followed. Every citizen should mandatorily stand forthe National Anthem. The theatre doors must remain closed during that time to prevent any person fromwalking in or exiting during that time. No short form of the National Anthem must be played. Thus, manysuch guidelines were issued by the Supreme Court to prevent any sort of misconduct towards the Anthemin two interim orders which was issued on 30th November, 2016 and 9th December, 2016.Facts :Nevertheless, on behalf of the National Platform for the Rights of the Disabled, an application was filedbefore this court to exempt the disabled from the purview of the order on 30th November, 2016 and 9thDecember, 2016. It is quite inhuman to expect the disabled persons to abide by the guidelines issued espec-tially when it requires to stand up during the time of the Anthem.Issue :Should the interim order of the Supreme Court regarding the National Anthem be binding on the personswith disabilities?Judgment :The Supreme Court realizing the necessity to attend to their specific situation, ordered an exemption to thedisabled persons in the interim order issued on 18th April, 2017.The Supreme Court charted out the following infirmities to be treated as disability for the requirement :-1. Wheel Chair Users – can be cerebral palsy, Parkinsons, Multiple sclerosis, Muscular dystrophy or other conditions2. Autism3. Cerebral Palsy4. Intellectual Disabilities5. Mental Illness6. Deaf Blind7. Multiple Disabilities8. Parkinsons, Multiple Sclerosis9. Leprosy Cured10. Muscular DystrophyAny person who is affected by the aforementioned disabilities need not be restrained by the hard-and-fastreading of the rules issued on 30th November, 2016. They are exempted from the orders of the court in rela-tion to the National Anthem in cinema halls which were issued on 30th November, 2016 and 9th December,2016.Learning outcome:The disabled persons are not liable to stand up while the National Anthem is being played in the theatres. Page 35

SC orders jointLibertatem Magazine - Edition 28 trail of L.K.Advani & Ors with Kar SevaksBy Jane MariaFactsAfter the Babri Masjid demolition happened, two FIRs were filed. One was the FIR No. 197 which was filedagainst the Kar Sevaks who was actively engaged in the demolition of the building. The second FIR was theFIR No. 198 which was filed against LK Advani, Uma Bharati and the other leaders who were giving insti-gating speeches a few meters away from the Masjid. On 9th September, 1993, the State Government issueda notification to transfer the case under FIR No. 197 to a Special Court at Lucknow. On 8th October, 1993,the State Government amended the notification to include FIR No. 198 also for trial.This amendment was struck down by the High Court as the Government did not consult the court beforetaking such a decision. Hence, although curable in nature, it was struck down for conflicting with theprovisions of Section 11(1) of the CrPC. The Government did not cure the error it made and the CBI didnot contest the same. In fact, CBI filed another supplementary chargesheet to Judicial Magistrate at RaeBareilly against the eight persons. Meanwhile, the CBI had added the Advani and the seven other personsto FIR No. 198 under the charge of criminal conspiracy under Section 120-B. The Special Court dropped thecharges and stated that the Kar Sevaks’ crime is different from that of the others. Kar Sevaks were activelyinvolved in the crime and hence, their persecution must be separate from that of its instigators. Hence, itsuggested to add the charge of conspiracy with the pending case before the Magistrate of Rae Bareilly.The case under the Magistrate of Rae Bareilly had, since then, suffered inordinate delay. Also, their weredemands from various quarters to conduct a joint trial of both these cases under the Special Judge of Luc-know as, in the end, the evidence and the substance of both the crimes were the same.IssuesCan the power under Article 142 be used to transfer the cases from a Magistrate at Rae bareilly to the Courtof Sessions under the jurisdiction of the same High Court?JudgmentThe argument of the Respondents was that such a transfer would take away their right to appeal from theMagistrate Court to Court of Sessions. This would infringe Article 21 of the Respondents. But, the courtheld that under Sections 406 and 407, by the procedure established by law, a case maybe transferred fromthe Magistrate to Sessions Court and from Sessions Court to High Court even. The Article 21 is not pre-sumed to have violated then. Similarly, the Supreme Court of India has been given exemplary powers un-der Artilce 142 to do complete justice in a case. It implies that the court can exempt the application of rigidlaw – espectially, directory provisions and technical procedures – to achieve justice in a case. There is nobar under Article 142 to the power of the Supreme Court from transferring the case between the MagistrateCourt to Sessions Court. In fact, if the State Government had issued the notification correcting the error andordered for a join trial in 2001, the same result would have achieved. It is the lapse on the part of the Gov-ernment andd the CBI that the Supreme Court by the power vested by Article 142 is aiming to correct.Also, the court held that the power of Supreme Court under Section 406 of CrPC to transfer cases betweenthe courts coming under the jurisdiction of different High Courts is not applicable here. The courts of RaeBareilly and Lucknow comes under the jurisdiction of the same High Court. Also, the existence of the pow-er for the High Court to transfer the cases under Section 407 of CrPC is not a bar to exceptional power ofthe Supreme Court in Article 142.Learning outcomeThus, the Supreme Court issued the orders under Article 142 to conduct a joint trial of LK Advani and theseven others along with the Kar Sevaks’ case pending before the Court of Sessions. The court also orderedthat the trial must be concluded in an expeditious manner within two years of the receipt of this judgment.Page 36

the courtroomSupreme Court on taxing the Formula One By Jane MariaFactsThe Formula One Championship Limited had given the rights to host, stage and promote Formula GrandPrix India to Jaypee Sports International Limited. The Income Tax department had raised the followingissues on the agreement entered between the two companies, i.e., the Race Promotion Contract :-Issues1. Whether the payment of consideration under the Race Promotion Contract to be received by Formula One Championship Limited is a royalty as per Article 13 of the Double Taxation Avoidance Agreement between UK and India?2. Whether Formula One Championship Limited has a ‘permanent establishment’ in India as per Article 5 of Double Taxation Avoidance Agreement?3. Whether any payment received by Formula One Championship Limited from Jaypee International Lim- ited outside India is taxable under Section 195 of the Indian Income Tax Act, 1961?JudgmentThe court first held that the permanent establishment is a fixed place where the commercial/economic ac-tivity takes place. They substantiated their argument by referring to the test applied in the case of Commis-sioner of Income Tax, A.P.-I v. Visakhapatnam Port Trust. A permanent establishment requires a stability,productivity and dependence. The court stated that:-“Not only the Buddh International Circuit is a fixed place where the commercial/economic activity of conductingF-1 Championship was carried out, one could clearly discern that it was a virtual projection of the foreign enterprise,namely, Formula-1 (i.e. FOWC) on the soil of this country”Thus, the court held that Formula One Championship Limited was having a permanent establishment inIndia.Now comes the other incidental questions. The first issue was regarding the question of royalty. The Rev-enue department had not challenged the High Court’s decision that it was not a royalty. Hence, the matterwas not considered again by the High Court. It was established that the payment of consideration underthe Race Promotion Contract to be received by Formula One Championship Limited is not a royalty as perArticle 13 of the Double Taxation Avoidance Agreement.With regarding to the third issue, the court held that all the income received by Jaypee Internationalthrough the Permanent Establishment of the Formula One Championship Limited shall be liable to be de-ducted as tax to India under Section 195 of Income Tax Act.Learning OutcomeThis case is especially important for studying the definition of ‘permanent establishment.’ It had delvedinto the details regarding the relevant tests needed to treat an entity as a permanent establishment in India. ******* Page 37

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