Libertatem Magazine - Issue 37 [February 2018]

EDITION 37 FEBRUARY 2018LIBERTATEM MAGAZINE www.libertatemmagazine.comCover StoryAgrarian Crisis inIndia and 2018Budgetary Antidote Featured StoryThe Haj SubsidyBan Editor’s PickMaldives:The Island and its Conquest

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 37 - February 15, 2018 Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee (Institute of Law, Nirma University) Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Rubel Bareja (Institute of Law, Nirma University) Rohit Yodha (Institute of Law, Nirma University) Devina Das (Symbiosis Law School, Pune) Apurv Taran Jain (National Law University, Odisha) Arushi Sheti (Amity Law School, Delhi) Mohd. Azeemullah (University of Al-Asmariya, Libya) Saloni Sharma (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) Content Developers Khushbu Shah (Maharastra National Law University) Vaishakhi Mudanna (Damodaram Sanjivayya National Law University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Nitya Jain (Instiitute of Law, Nirma University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) Debajyoti Saha (School of Law, Christ University) Mohammad Azeemullah (University of Al-Asmariya, Libya) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Farhaan S. Haque (National Law University, Odisha) Shweta Subudhi (Midnapore law college, Vidyasagar University) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2018]

Contents Contents of Edition 30 February 2018 Volume 4 Number 2 Edition 37Cover StoryAgrarian Crisis in India and 2018 Budgetary Antidote – An Expired Placebo (p.4)Editor’s Pick 08The Maldives Crisis and the World (p.8)Maldives: The Island and its Conquest (p.10)Featured Storyc (p.12)Legal News Stories 20The Rafale Deal Controversy (p.14)The Archipelago’s Tense Saga: From Indian Lens (p.16)A Reminder to Constitutional Nationalism (p.18)Liberalization of the Legal Services Sector (p.20)The CourtroomHigh court of Calcutta commutes death sentence of 8 murder accused (p.24)Son Must Shoulder both Assets and Liabilities of Deceased Father (p.24)Domino’s Pizza To Shell Out 9.5 Lakh Rupees As A Fine For Using Unfit Cheese (p.25)Google To Pay Penalty Of 136 Crore For Anti-Competitive Conduct In India (p.26)Summon Without Specific Date & Time Cannot Be Considered As Validly Served (p.27)Supreme Court issues directions for effective implementation of Juvenile Justice (p.28)Cancelling of all iron ore mint in Goa on 8th of Feb by Supreme Court (p.29)Supreme Court decides the Cauvery Water Dispute (p.30)04 © All Rights Reserved by Libertatem Media Group [2018] Disclaimer - The opinion expressed in each article is the opinion of its author and does not necessarily reflect the opinion of Libertatem Media Group. Therefore, Libertatem Magazine carries no responsibility for the opinion expressed thereon.

Libertatem Magazine - Edition 37Agrarian Crisis in Indiaand 2018 BudgetaryAntidote – An ExpiredPlacebo By Vaibhav Kumar The process of the Budget Presentation in the Parliament is one of the ways to keep a check on the executive by the Legislature. It is an effective way to question the ruling dispensation for its lacunas. It also serves as a watchdog for the Government to highlight its perspective policies concerning various sectors of the economy. Hon’ble Finance Minister, Mr. Arun Jaitley has presented Budget 2018 in the Parliament. The budget is particu- larly significant this year since it is the last complete budget before the impending general elections in 2019. It is invariably a crucial chance for the Government to course correct the economic hurdles while trying to woo thePage 4

Cover Storypublic for support over another five-year term. Of all the budgets presented by the NDA Government in thespan of last four years, this year’s annual financial statement stands most cardinal, as it comes at a time whenIndia’s Agricultural sector passes through a downtrodden phase. The market sentiment is also not encourag-ing due to high unemployment, soaring NPAs of the public sector banks and a major surge in fuel prices inthe international market. The article dwells upon the root cause of the prevailing distress in the agriculturesector. It will try to analyze the various remedies suggested by the Government in the budget while focusingon their efficiency as well as implementation.Prevailing Agrarian Distress in IndiaThe agricultural sector in India is going through a tough phase presently. The real income of a farmer inIndia according to the recently released Economic Survey of 2018 has remained stagnant in the past fouryears. It has failed to improve in spite of a slew of reforms being initiated by the present Government such aselectronic National Agricultural Market (e-NAM), Soil Health Card, Kisan App, solar pump sets, etc. It is in-teresting to note that, though the Economic Survey candidly admits the failure of the Government in raisingthe incomes of the farmers, the executive still believes that it would be able to achieve the seemingly impossi-ble target of doubling the farmer’s income by 2022. Another cause of gloom for the farmers has been the debttrap in addition to the poor prices for their crops. While many Governments across the nation have launchedthe loan waiver schemes, however, their effect on ground zero has been minimal. The example of Maharash-tra is apt to quote, as the state Government in 2017 introduced a massive Rs. 34,000 crore loan waiver for thepoor farmers. But still, around 2,414 farmer suicides were reported in the state during a period ranging from1 January 2017 to 31 October 2017. The sad statistics has been a reality in many states as more than 10,000farmers commit suicide throughout the nation every year. It is disgraceful fact for the entire nation that evenafter 70 years of Independence, we have utterly failed in taking care of our annadatas. The farmers have re-mained a neglected by the governments, to be only used as a vote bank in the elections.Causes of Distress in Agriculture – MSP FallacyThe root cause for the trouble to the farmers is the non-implementation of the Minimum Support Price (MSP).In India, the Government announces the MSP for the various crops before the sowing season itself. It is thatminimum price which the Government promises to give to all the farmers in exchange for their produce inorder to sustain their livelihood in farming. Of course, the farmers could always sell their crops at higherrates which are in turn governed by the market forces led by demand and supply. But the sad reality is that,on most occasions, farmers do not get even MSP for their crops. It is because the Government’s MSP is usual-ly delayed and generally, farmers need urgent income after a crop cycle so as to start another cycle of sowing.There has been a great controversy as regards to the calculation of the MSP. Ideally, It is to be based on thecost of production and governments usually advocates that MSP provided by them is greater than the cost ofproduction to serve as real income for the farmers. But the farmer activists claim that in most of the cases theMSP is grossly under-calculated and is sometimes based on flawed figures as regards to the cost of produc-tion. For most of the crops, the average Agriculture produce Market Corporations (APMCs) prices are muchlesser than MSP.There is also the issue related to the implementation of the MS Swaminathan Committee recommendations,fixing MSP at least 50 percent higher than the weighted average cost of crop production. The other recom-mendations by the committee which includes land reforms, irrigational facility, and food security could serveas a potential roadmap for the Government to mitigate the current distress. Madhya Pradesh has observeda series of prolonged protests by the farmers’ groups, demanding the implementation of the SwaminathanCommittee’s recommendations. The root cause for behind the prevailing distress has been the neglect of theagriculture sector and absence of the required political will to improve the lives of millions of small and mar-ginalized farmers. The questions regard to priority arises as well because the Government has already inject-ed around Rs. 2 lakh crores in the ailing public sector banks for the NPAs mitigation. There is real possibilitythat the Government will have to spend lakhs of crores in the coming future under the PSU banks, along withan amount around Rs. 1 lakh crore for the implementation of the Seventh Pay Commission guidelines for theCentral employees; but the same duty to prevent the farmers from committing suicides seems to be absent.It is estimated that around Rs. 2 lakh crore would be required per year to ensure that farmers get more thantheir cost of production as the MSP for their crops. The allocation of the additional resources must remaina priority for the Government because approximately 54% of the nation’s population derives its livelihoodfrom the primary sector. We must acknowledge that no cost is dearer to the lives of thousands of farmerswho commit suicide every year due to failure to pay off their debts. Page 5

Libertatem Magazine - Edition 37 It is indeed ironic that on one hand, farmers who default on petty amounts of a loan are forced to commit suicides, while industrialist defaulting in thousands and even lacs of crores rupees conveniently escape in foreign nations, evading the legal process for years on the trough. Budgetary Remedies for the Distress The Budget 2018 was expected to be pro-farmer one, as the sector was reeling from a crisis. The said budget tries to improve the situation without any splurging of the public money. It has been cautious by not becom- ing populist and venturing into financial imprudence. The biggest promise made in the budget is the deci- sion to provide MSP of one and the half times the cost of production for the upcoming Kharif crops. It also proclaimed to increase the institutional farm credit to Rs. 11 lakh crore for FY 2018-19. 22,000 rural haats will be developed by the Government and would be upgraded into Gramin Agricultural Markets. “Operation Greens” will be launched with an objective to stabilize the prices of onion, tomato, and potato for the benefit of both the farmers as well as consumers. As a fund Rs. 10,000 has been allotted each for the development of Fisheries and Animal Husbandry sectors. Allocation of Rs. 1290 crore has been made for the restricted Na- tional Bamboo Mission. The Budget is a symbolic one, also announced the world’s biggest healthcare pro- gramme which will provide benefit to 10 crore families (approximately 50 crore beneficiaries) for the insur- ance cover of Rs. 5 lakh per year per family for both secondary and tertiary hospitalization. Implementation: Hurdle like the old times The issue regarding the implementation of the promises made in the budgets will continue to haunt the rul- ing regime. As we analyze the lofty announcements of the Budget 2018, we would realize that an enlightened vision is a ‘sine qua non’ for the welfare of the people, but it is not the only requirement. The earlier prom- ised Pradhan Mantri Fasal Bima Yojana, e-NAM, and Soil Health Card scheme have failed to produce the desired results mainly due to lack of proper implementation of the schemes on the ground. The Fasal Bima Yojana which promised insurance coverage against crop failure or prices drops, fared badly due to delay in the release of the insurance amounts, in some cases many a times at the cost of the farmers’ lives. The great promise made in the form of MSP as one and the half times the cost of production would require a herculean effort to succeed; particularly when at present, even the promised MSP is not being disbursed properly. The target of Rs. 11 lakh core farm credit is certainly laudable. But the same as per intended purpose must reach the poor and marginalized farmers and not be mopped up by the richer segment of the community. It would require stringent monitoring along with punctuality in work ethics for the successful implementation of the Animal Husbandry, Fisheries and National Bamboo MissionPage 6

Cover StoryThe promise of providing health insurance to 10 crore families seems highly improbable because of the simplefact that the nation is suffering from an acute shortage of doctors, medical personnel, and health-related infra-structure. The deplorable sight of the poor patients and their relatives forced to spend nights in open underthe chilly nights of Delhi sounds like an ample proof of the shoddy public infrastructure and its inadequacy.In view of the present situation, even if the Government is able to provide health care to the 10 crore familiessuffering from poverty, the majority of the market shares would be mopped up by the private hospitals andmedical practitioners.The biggest question posed by this very Budget is that, though it makes great promises for the welfare ofthe people, there is no mention as regards to the source of the funds so as to fulfill those promises. The onlysignificant source of revenue seems through disinvestment by the Government, but the same has its acknowl-edged limitations as well. The territory of job creation has also been largely remained untouched by the bud-get. Although, it says that 70 lakh formal jobs will be created in the next year, the same has not been corrobo-rated by the industry experts as well as the rising unemployment rate throughout the nation.The Road Ahead…..The problems of the agricultural sector are very grave and require immediate efforts for their amelioration.The Budget 2018 is replete with lofty promises implementation of which on the ground zero would not bevery smooth. The real issues regarding calculation of MSP for crops and health insurance remain to be unan-swered. The looming debate about rising unemployment, NPAs in public sector banks and farmer suicidesis largely left in the larch by the Budget. But a human being lives on “Hope”. The only direction in whichthe present condition of the agrarian sector could move is upwards. If the Budget is able to achieve a majorportion of the pronouncements made, it could improve the situation greatly. The need of the hour is to havea sincere political will to better the lives of crores of poor and marginalized farmers, on whose sacrifice andhard-work the nation bestows of being a self-sufficient economic powerhouse. Farmers who constitute a largeportion of the electorate have been mostly forgotten by the governments post-election. The political slogans of“Jai Jawan, Jai Kisan”, “Garibi Hatao”, “India Shining” and “Bharat Nirmal” have only been electoral stuntsto placate the ailing community. It is high time that the Government feels the pain, agony, and helplessness ofthe Indian Farmers; and rise to the occasion by improving the living conditions of the country’s annadatas. Page 7

Libertatem Magazine - Edition 37Tahned MthaeldWivoersldCrisisBy Somya Stuti The Maldives’ latest political crisis is the culmination of a standoff between President Abdulla Yameen and the Maldives Supreme Court, which last week ruled that nine opponents of the president had been unfairly convicted. Those opponents include exiled former president Nasheed — who in 2015 was sentenced to 13 years in prison after a trial broadly viewed as politically motivated — and Mohamed Nazim, a former defense minister who many Maldiv- ians believe was framed, according to the New York Times. Opposition protests have gathered pace as the President continues to refuse the court’s order to free the jailed dissidents. Along with the chief justice and another high court judge, also authorities detain Nasheed’s political predecessor Maumoon Abdul Gayoom, the Times reports. Gayoom — an autocrat who ruled the Maldives for 30 years and under whom former president Nasheed was arrested mul- tiple times — is Yameen’s half-brother but is now allied with the opposition. In late January, he appeared to urge an overthrow of the government, according to local media. The Supreme Court’s ruling precedes what could be a fiercely contested presidential election later this year — if the opposition could run. Nasheed, who was granted asylum in the U.K. in 2016, told reporters last year that he planned to return home and run for president, which the court’s ruling appears to pave the way for him to do. There may be other reasons for the president’s crackdown. According to the Times, recent investment deals struck with China and Saudi Arabia might have bolstered his con- fidence through the crisis. Even if that were the case, Yameen has reason to fear a slowdown in the tourism sector, the Maldives’ largest source of foreign exchange. Tourism took a hit in 2015 when concerns over terrorism prompted Yameen to declare the State of Emergency. This time around China, the U.S., the U.K., and India have already issued travel warnings to their citizens. Page 8

Editor’s PickAs the Maldives celebrated its 52nd anniversary, at which Pakistan Prime Minister Nawaz Sharif was the chief guest,President Abdulla Yameen ordered troops to barricade Parliament. For the second day on Tuesday, troops shovedMPs belonging to the unified opposition, including the Maldivian Democratic Party (MDP) and prevented themfrom entering. The unified Opposition had given notice for a no-confidence vote on Monday, July 24 and hoped toimpeach the Speaker Abdulla Maseeh, as several MPs belonging to the ruling party crossed the floor and joined it.The Opposition now claims the support of 45 MPs in a Parliament (Majlis) of 85 MPs. Impeaching the Speaker wontdislodge Yameen, because the Maldives follows a presidential form of government, but will weaken him consider-ably ahead of presidential polls slated for 2018.Who is the Opposition?The unified Opposition, once political rivals, came together a few months ago in the belief that if they didn’t swimtogether they would sink. The coalition is led by the MDP, whose leader is former president Mohamed Nasheed;the Progressive Party of the Maldives (PPM) led by Abdul Maumoon Gayoom, who ran the Maldives with an ironhand for 30 years before and after he was bailed out by Rajiv Gandhi in an attempted coup in 1988 and until he wasdefeated by Nasheed in Maldives first democratic election in 2008; the Jumhooree Party is led by the very wealthyGasim Ibrahim, owner of several high-end resorts in the Maldives; and the pro-Islamist Adhaalath party, theself-proclaimed branch of the Muslim Brotherhood in the Maldives, one of whose leaders, the eye-surgeon MauroofHussain was trained in India.Gayoom, who is half-brother to the current president Abdulla Yameen, was very much part of the governmentwhen Yameen defeated Nasheed in a controversial run-off election in 2013 – which took place after Nasheed wasoverthrown in a coup in 2012 – but has since fallen out with Yameen. Until last year, Gayoom’s daughter Dunya wasforeign minister of the Maldives. The falling out between Gayoom and Yameen came to a head in March 2017 whenGayoom joined the unified coalition launched by Nasheed. Last week, Yameen arrested Gayoom’s son Faris andthrew him into jail.Faris Gayoom’s arrest was the trigger that has led to this current crisis. It led to several top Western diplomatsexpressing concern at the growing authoritarianism in the coral islands. US ambassador to Sri Lanka and the Mal-dives, who is based on Colombo, said on June 18: “Arrests and intimidation of elected legislators including Faris maumoonimpedes the normal function of Parliament & democracy in Maldives”His British colleague, James Dauris followed up on the same day. “Concerning that MP Faris maumoon arrested inthe Maldives today. Freedom to hold the government to account is a fundamental element of democracy,” he tweet-ed. More arrests & intimidation July of elected legislators including Faris maumoon impedes the normal functionof Parliament & democracy in the Maldives, Concerning that MP Ffaris maumoon arrested in the Maldives today.Freedom to hold the government to account is a fundamental element of democracy.While Shelley Whiting of Canada posted : “Concerned by ongoing harassment & intimidation of Maldives opposi-tion MPs. Democracies allow free expression of different political views.”On July 25, the embassies of the US, Canada, France, Germany, Italy, the Netherlands, Norway, Switzerland, the UKand the European Union delegation to Sri Lanka and the Maldives issued a statement saying they were alarmed bythe recent actions of the Maldivian government “which seriously damage and undermine democracy and run count-er to the Maldives’ Constitution and the country’s international human rights obligations.”The statement referred to the forcible closure of the Majlis, to security forces surrounding and entering Parliamentand harassment and intimidation and arrest of elected MPs. “Legitimate opposition remains a vital component ofany healthy democracy and it is essential that freedoms of assembly and expression are upheld for all,” the state-ment added.With the army taking control of the Maldives’ Parliament, the sound of India’s silence is becoming increasinglyunbearable for the unified? Maldivian opposition. In an exclusive interaction with TOI, former president MohamedNasheed and top leader of the 4-party joint opposition said that the silence of regional powers will allow the chaosin the archipelago to worsen throwing the region into disarray.“It is worrying that, even when red lines are crossed, regional powers remain silent and inactive because that can allow the cha-os and conflict to spiral out of control,” Nasheed told TOI.“The Maldives is in full blown political crisis. President Yameen’s troops continue to occupy parliament, forcibly evicting oppo-sition MPs and preventing the legislature from functioning,” he added. Page 9

Libertatem Magazine - Edition 37Maldives: The Islandand its ConquestBy Shristi Banerjee 1988 COUPE & The EXISTING CRISIS In the year 1988, a coupe d’etat led by Abdullah Luthufi, assisted by the People’s Liberation Organisation of Tam- il Elam (PLOTE), tried to overthrow the Government of Republic of Maldives. Despite its tremendous efforts, the coupe failed due to timely intervention of the Indian armed forces, whose military operation was code named as ‘Operation Cactus’. In the coupe d’etat, the armed PLOTE members had landed at the capital of Malte from freight- ers in speed boats to overthrow the government. However, they failed to capture the then President, Maumoon Abdul Gayoom as he sought help from India, United Kingdom and the U.S. The then Prime Minister of India, Rajiv Gandhi sent 1600 paratroopers by air to restore order. This action was taken due to the express invitation of the Gov- ernment and authorisation of the UN. After thirty years, a new crisis has engulfed the archipelago with the current President Abdulla Yameen deciding to disobey a Supreme Court order and imposing a state of emergency. So far, India has released two official statements on the ongoing crisis in Maldives. On February 2, they asked the Maldives government to abide by its Supreme Court’s ruling and order the release of political prisoners and reinstatement of 12 disqualified parliamentarians. Later, India stated that it was “disturbed” by the imposition of state of emergency followed by the arrest of Gayoom and Saeed. India also issued a travel advisory advising its citizens to avoid all non-essential travel to Maldives. CURRENT DAY MALDIVES As of this day, the world community at large does not view the current Maldives crisis as a humanitarian crisis. India itself is on a diplomatic path and is not bowing down to popular sentiments. As of now, India is not provid- ing military aid because of the standpoints in international law, particularly Article 2 of the United Nations Charter which enshrines the responsibility to protect doctrine. It states member nations to refrain from using threat or use of force against the territorial integrity or political independence of any state, except for its own defence. The Interna- tional Court of Justice in Nicaragua v. United States of America, expressly prohibited state intervention Page 10

Editor’s Pickthrough direct military forces or indirect action. The doctrine of responsibility to protect has evolved to include massatrocities. It fixes upon the state itself, the responsibility of its people and sovereignty. Instances in Rawanda andBalkan, and the Rohingya crisis have time and again demonstrated the implementation of the doctrine.CALL FOR HELPThough there has been a plea for help from India through tweets, India hasn’t yet intervened. These tweets werefrom an influential political opponent of the current President, Yameen Abdul Gayoom, and the former President ofMaldives, Mohammed Nasheed.It is interesting to note that the current President had taken several persuasive external affairs reforms that perhapsexplain his long tenure through friendly convoys to Pakistan, China and Saudi Arabia. Earlier Maldives had reachedout to India as well with a possibility for visit of the Maldivian envoy to India, but New Delhi negated the offer,stating that the political premier of the state was out of the country and the visit was not possible on the said dates.In such circumstances, it is unlikely that India will look at unilateral military support due to the illegality of thePresident’s actions. Instead, it is plausible that the country will be subject to and its actions governed by economicand south Asian community pressure infliction. The Maldives government had “noted with concern” that calls forIndian military intervention in the Maldives had been made by some Maldivians. It further said that at no time was arequest for military intervention made from their side, marking a major difference between the current situation andthe one in 1988 when the Gayoom government itself sought Indian intervention.INDIA MALDIVES TIESSo what changed in the sovereign relationships between India and Maldives? Though they were strengthened in1988, they seem somewhat cold at present. The island republic in the Indian Ocean was considered to be in India’ssphere of influence. However, the arrest of two Supreme Court judges, the suspension of rule of law and humanrights, coupled with certain articles on the Maldivian Constitution have escalated the situation into hostility. WithChina vying for a strategic dominance, the archipelago sinks in political tension.INTERNATIONAL POLICY OF INDIAIndia is strongly grounded on international law policies, for its relations with other nations.Especially so since India is already expecting China to abide by signed treaties for Arunachal Pradesh’s Doka La andAksai Chin. Thus, instead of an outward flex of military muscle, India has sanctions to protect it’s political and moralgrounds.In such a case, the United Nations Security Council can be lobbied by India for this crisis, should a military solutionbe required. Though China will have a veto on the decision. Resultantly, a total failure of the democratic machineryand recognition of a legal Government with Nasheen as the Head may be on the cards. This is a wishful situation forNew Delhi after the free trade treaty between China and Maldives.IT ALL BOILS DOWN TO TRADEThe Maritime Silk Road Treaty for the Sea route and Belts was recently rejected by India. This openly underminesIndian relations with Maldives. The treaty came close to the heals of a debt swap deal with Sri Lanka. China acquiredthe Hambantota port for its Belts and Roads initiative. With India’s rejection of the Treaty, it is for the nations to waitand watch over the treasure island and how the politics in Asia plays out. In a political signal continuing the Mal-dives tilt towards China, President Abdullah Yameen had sent letters of felicitation, on Chinese New-year to Presi-dent Xi Jinping and Chinese Premier Li keqiang, indicating further collaboration, working towards benefit of peopleand thanking China for it’s commitment to Maldives’s development needs.RELATIONS ON HOLD?As of February 16, 2018, the Indian ambassador at Malte, M.r Akhilesh Mishra met the Foreign Secretary of Maldives,Mr. Ahmed Sareer in an official meeting after expressing inability to provide special envoy to Maldives. The ForeignSecretary reassured the Indian ambassador that detained former President Maumoon Abdul Gayoom, Chief JusticeAbdulla Saeed and another judge, Ali Hameed, were in “good health”, with access to doctors and medicines. Mishrawas also informed that Gayoom has been moved from the Dhoonidhoo detention centre to Maafushi prison. As ofnow, the top officials of the two nations have heard each other’s position, and entered into commitments to strength-en their relationship with a possibility of a future visit. There was further assurance from Maldives that the politicaldetainees were being treated as per the spirit of the law. Page 11

Libertatem Magazine - Edition 37CHhaaj rSaucbtseirdoyfBCaonnasntidtuStieocnular By Mohammad Azeemullah For long, the Indian state has practiced the unconstitutional sin of opting for Haj subsidy to continue. For long, India has suffered from the undue burden of religious subsidy to a particular community. For long, people have voiced opinions against the politics of favoritism and appeasement. To prevent these voices from going unheard, the Supreme Court finally heard the agonizing soul of India against state generosity for Muslim pil- grims and ruled that it should be phased out in 10 years. Ban on Haj Subsidy The nation witnessed the glory of constitutional pride on 16th January, 2017 when Union minister for minority affairs, Mukhtar Abbas Naqvi, announced that Haj subsidy had been withdrawn as part of a policy to ‘empow- er minorities without appeasement’. The decision to ban Haj subsidy was celebrated as a rite of piousness by the Central Government of India to implement constitutional obligations. All people, irrespective of their religious affiliation, welcomed the move. Surprisingly, even leaders from the minority community supported it. It was indeed a moment of pride when the nation united over the matter. However, such harmony was only short-lived as debates and arguments were soon to follow. The Resulting Communal Debate Shortly after the ban, the discussions turned argumentative and confrontational. Many raised questions. “Why only Haj? End subsidies for all pilgrims”, remarked Swaminathan S. Anklesaria Aiyar, a renowned and con- sulting editor of The Economic Times. Both electronic and print media began to discuss and dispute the reason- ing behind the withdrawal of Haj subsidy. The questions that arise are- Why has Haj subsidy ban sparked off debate along communal lines? What has pricked the conscience of media so as to argue in favor of ending subsidies for all pilgrims?Page 12

Featured Story A Secular Constitution and Politicization of Subsidies Politicians may have a different course of opinions over the definition of ‘appeasement’. Leaders may have a dif- ferent parameter to dilute facts to suit their electoral goals. But the Constitution of India is concrete and crystal-clear. It states that ‘secularism’ is the foundation of patriotic beliefs. It is the bedrock of our nationalistic spirit. The Preamble to the Constitution states: “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRAT- IC REPUBLIC and to secure to all its citizen’s JUSTICE, LIBERTY, EQUALITY, and FRATERNITY.” Undeniably, secularism is implicit in the entire soul of constitutional framework. The guarantee of equality in Article 14; the promise of non-discrimination in Articles 15 and 16; protection from religious taxes and religious instruction in state-funded institutions set in Articles 27 and 28; the permission of educational institutions of choice to linguistic and religious minorities in Articles 29 and 30; the promise of equal ballots devoid of sectional preferenc- es in Article 325…and so on testify India’s commitment to secular values.Regrettably, no party in the country can claim to have sacredly followed constitutional obligations in the truesense of their character and spirit. Politics of opportunism has been the norm rather than an exception. Wheth-er it is by the central or state government, disregard of the secular ethos of the Constitution has been a constantpractice.The religious subsidies provided by political parties as well as states are too many to be listed. The Congressgovernment started Mere Buzurg Mere Teerth scheme in 2014 while BJP government in Gujarat had alreadysubsidized Kailash Mansarovar pilgrims in 2001. Pilgrim subsidies in Karnataka, Assam, and Rajasthan do existin one form or the other. Tamil Nadu, ruled by neither Congress nor BJP, has subsidies for Hindu pilgrims toMansarovar and Christian pilgrims to Jerusalem, and so on.Such subsidies would have been struck down as a violation of the Constitution in countries like the US orFrance. The courts in those countries take care to separate the state from religious activity, even though the UShas a strong Christian lobby.The problem is that in India there is no principle adherence to separation of the state and religion. The Constit-uent Assembly (Legislative) had passed an explicit resolution on the separation of religion from politics as farback as April 3, 1948, but no successive governments made sincere efforts to attain that pious objective.In a secular state, religion is expected to be a purely personal and private matter that is not supposed to haveanything to do with the governance of the country. The Supreme Court had observed in the Bommai case thatif religion is not separated from politics, the religion of the ruling party tends to become the state religion. Thisseems to be transforming into reality.Had the State reflected constitutional obligations into practice by according equal treatment to all religions, thevoice for ending all religious subsidies would not have been raised. Had the true meaning of secularism as re-flected in the Constitution of India not been misread to serve the political purpose, the accusation of ‘minority/majority appeasement’ would not have existed.India’s constitution gloriously serves the country’s diverse and plural society to solidify cohesiveness of na-tional purpose. Unfortunately, at times, bias by the State hurts the dignity of constitutional spirit and character.This needs to be remedied with a realization by political parties of the value of constitutional obligation andpublic trust that’s bestowed on them. Page 13

Libertatem Magazine - Edition 37 The Rafale Deal Controversy By Anooj Srivastava With the perspective to enhance and upgrade India’s mellow fleet, in the April of 2015, Prime Minister Modi, announced that 36 Rafale fighter jets, will be bought (ready to fly) from the French aircraft builder and integrator, Dassault. It was originally planned, that 108 fighter jets will be foregathered in India, by the state-run Hindustan Aeronautics Limited, Bengaluru, while 18 will be bought from Dassault Aviation. Finally, in January 2016, the order of 36 Rafale fighter jets was confirmed in the deal with France. Under this deal, Dassault Aviation, along with its main partners Safran and Thales, engine and electronic-system maker respec- tively, would share some technologies with the Defence Research and Development Organisation, HAL and some private companies. The Agreement Nearly after one and a half year since Prime Minister Modi made the announcement, the inter-governmental deal was finally signed between India and France, in September 2016. India promised the payment of Rs 58,000 Crore in exchange of 36 Rafale Fighter Jets and about 15 per cent of this cost was to be paid in advance. Additionally, an accompanying offset clause was sealed through which France will invest 30 per cent of the amount in India’s mili- tary aeronautics-related research programmes and 20 per cent into local production of Rafale components [NDTV, February 9]. Alterations that led to the Controversy In the year 2007, when the UPA government was in power, it floated a tender to purchase 126 ‘Medium Multi-Role Combat Aircrafts’. Later in the year 2012 the Dassault Aviation agreed to sell Rafale at a base price of Rs 54,000 crore. The agreement was signed on March 13, 2014.Page 14

News StoryIn April, 2015, Prime Minister Narendra Modi made a visit to France and made the announcement that Indiawould buy 36 “off the shelf” Rafale Fighter Jets. The interesting part was that during his visit, he was accompa-nied by the Reliance Defence Limited owner, Anil Ambani.The agreement of 2014 was cancelled and a new agreement was signed in September 2016, whereby 36 Rafale Jetswould be bought for the price of Rs 58,000 Crore. Also, under the new agreement Dassault Aviation no longerhad to transfer any technology, RDL undertook offset obligations of Rs 30,000 crore with Dassault Aviation andHAL was no longer required in the manufacture of these fighter jets .The ControversyThe Opposition alleged that the NDA government bought the 36 Rafale jets at a price which was much higherprice than what was being negotiated by the UPA government for 126 aircrafts. The UPA negotiation comes to Rs526.1 crore per aircraft while NDA’s negotiation comes to Rs 1570.8 Crore [The Indian Express, February 9, 2018].The price for 126 Rafale jets, negotiated by UPA government was Rs 4000 Crore less than that negotiated by theNDA for 36 Rafale Jets.Allegations were made by the opposition that PM Modi was promoting the interests of Reliance Defence Limit-ed. Opposition alleges that the discharge of offsets has been done to favour a particular private Indian defencecompany. Congress accused BJP of non-transparency in the billion-dollar deal and it is one of the biggest failuresof the “Make In India” programme. The Opposition also alleged that there has been a total neglect of Transfer ofTechnology (ToT).The controversy sharpened on Monday after Defence Minister Nirmala Sitharaman declined to share the cost ofRafale Fighters with Rajya Sabha. The Congress has claimed that the new deal is in violation of the Defense Pro-curement Procedure, since an announcement had been made by the Prime Minister regarding the purchase of thejets without any inter-governmental agreement and in the absence of the defence minister [Youthkiawaaz.com].Response to AllegationsThe Defence Minister Nirmala Sitharaman told the Parliament earlier this week that the details of the deal withFrance for the Rafale fighter jets cannot be disclosed as per the inter-governmental agreement as it is “classifiedinformation”. She added that “there was no violation of procurement procedures, the Centre is yet to decide onprocuring additional Rafales [Economic Times, November 17, 2017].”“In September, 2016, in the presence of France’s Defence Minister and then Indian Defence Minister ManoharParrikar the agreement for 36 Rafales was signed. It is an intergovernmental agreement with five rounds of dis-cussion, past which the CCS approval was obtained and then was the agreement between India and France, so noprocedure was violated. ”Sitharaman said in response to allegations that the decision was unilaterally taken byModi.When she was asked about the lack of Transfer of Technology, she responded that there is no “economic sense”in talking about the Transfer of Technology. The Defence Minister, with regard to the arguments over offset, said,that no offset contract had been signed so far.In addition, the RDL also asserted to the heating controversy saying that Anil Ambani is a member of the In-do-French CEO Forum and during the meeting more than 20 Indian CEOs present. It further said that no approv-als from the Union cabinet or cabinet committee on security were needed as the government policy as of June 24,2016 allowed for 49% foreign direct investment in the defence sector under the automatic route without any priorapproval. The joint venture was formed in October 2016 according to the new policy [The Wire, December 17,2017].The ConclusionAlthough the Government has promptly responded to the said allegation there remains a lot of unanswered ques-tions. Isn’t the removal of the technology clause from the deal a failure of the “Make in India” campaign? Whywas HAL’s role not considered by the Modi Government? What was the need of including RDL in the deal? Andfinally, why did the Modi Government cancel the old agreement with less favourable clause and more prices?For the above reasons and due to the reluctant attitude of BJP to come clean, the Opposition has been raising ac-cusations regularly and challenging the opacity of the deal, obviously for a political cause. Page 15

Libertatem Magazine - Edition 37 The Archipelago’s Tense Saga: From Indian Lens By Neha INTRODUCTION The latest Maldivian crisis, which erupted on February 1st 2018, left the world awestruck. Simmering from a judg- ment of the Supreme Court of Maldives seeking to free nine political prisoners including former President Mo- hamed Nasheed transpired the tourist hotspot to impromptu emergency. The judgment received worldwide accord from international community. However, the government vowed to ride roughshod, declared its incapacity in implementing the ruling. Maintaining that the apex Court verdict was a nefarious attempt at a coup, Yameen imposed an emergency for 15 days and ordered arrest of the Justices of the Supreme Court. This tense saga saw a new rare flavour being added when the decision was reverted back by the court. This place once famed for its idyllic beaches witnesses a steady demise of rule of law until its final abode in 2018. The curious eyes of the world at large are watching the tale and fate of archipelago. INDIA’S RESPONSE TO THE ISLAND POLITICS AND THE PROSPECTIVE APPROACH India and Maldives have shared a frayed relation since 2012. The bandwagon effect of this was the cosy ties be- tween China and the island nation and that too at the expense of India. This marks a defined detour from the country’s historic reliance on India. These deadly blows to “India First policy” suggest that there is a litmus test for Indian foreign policy and its role in Indian Ocean in the face of political crisis. Some suggest India to take a leaf out of ‘’Operation Cactus’’ and intervene. However, such action seems impossi- ble today. If at all it were to be mulled over, it would be one against the legally elected President. As the political theatres unfold, India on the other hand has issued statements since the crisis erupted, one exhorting the Maldivi- an government and all its agencies to abide by the Supreme Court judgment and the second conveying that it was ‘’disturbed’’ at the imposition of emergency by the Maldivian government. In the aforementioned state of affairs, ’’No Action’’ is not an option for the India. At one fell swoop, however, its instantaneous retort and action cannot be to put boots on the ground. As such an action would undoubtedly reinforce India’s position as domineering hegemonic nation undaunted to use force against its puny neighbours. Conversely, it has been reported that an armed contingent including aircraft and ground forces have been placed in readiness and is ready to swing into action at short notice. Also, any intervention by India can be spun into an anti-Islamic rhetoric in the island, by interests inimical to Indi- an influence in the Indian Ocean. Yameen [knows] this far too well, and might just be waiting for India to take the misstep — it would help his cause in cementing his role as a defender and protector of the faith. India needs to devise a graduated and judicious tactic to deal with the situation at hand. It also needs to be in regular and constant touch with the international stakeholders and other likeminded countries. Yameen’s bra- zen attitude suggests his confidence about China’s support. Not to be forgotten China’s capacity to intervene in a substantive manner in the Indian Ocean is severely limited by practicalities. Whereas, India’s actions are likely to receive full and whole-hearted support of the international community. The strategic significance of Maldives for India has been ever growing. It is of great concern for India’s regional security. Hence, India must reap this opportune moment to safeguard and protect its strategic interests in the re- gion. In addition, there are about 25,000 Indian expatriates in Maldives. Their safety and security is on top rung in priority list. India will be forced to resort to military action if its nationals come under imminent threat.Page 16

News StoryCONCLUSION Moreover, India must be sober and measured, quick yet firm in all its dealings. While keenly observing the unfold-ing realms, it needs to be battle-ready to respond to any development aptly. In conjunction with the world, Indiashould apply unrelenting pressure in a graduated and calibrated manner and strive to lift the state of emergency.The constitutional crisis brings better prospects for India to reassert its influence in its maritime vicinity and to es-tablish genuine democracy and freedom in Maldives. Increasing exasperated India with the unfriendly and insid-ious antics of undemocratic Maldives now has an unseen benefit amidst darkness. Eventually, much will dependon demand from Male as India will be able to help and support only to the extent that the country aggrieved seeks.Amidst all said and done it is worth remembering that the turmoil in the atoll nation is not just internal politics, ithas deep strategic ramifications for India. This gory dance under political garb can in no way be seen in isolation.The blue water of this crisis spills over the entire neighbouring geopolitical areas and country like India needs totake a line. Page 17

Libertatem Magazine - Edition 37 ConstiAtuRtieomnainl dNeartitoonalism By Shreyan Archarya India has completed its 69th year as a Republic. On the very day of 26th January 1950, the Constitution of India was enforced. The working of the constitution can be traced back from its very existence. The Indian Constitution is a compilation and mixture of different Constitutions. The framers of the Constitution referred to various constitutional provi- sions of different countries and after extensive deliberations upon it, modified and adopt- ed the same as best suitable to the Indian condition. India adopted a democratic structure which stands incomplete without achieving both social and economic democracy. Even Dr. B.R. Ambedkar, the architect of the Constitution, relied upon the very notion to mark the successful working of democracy. The Constitution of India is a codified document that envisages upon these very princi- ples. The Indian Constitution has certain characteristics that make it distinct from others. It is the lengthiest written constitution in the world. It has extensively elaborated upon every provision so as to demarcate the functioning of different institutions and has simul- taneously propounded upon the Fundamental Rights and the Directive Principles of state policy, equally fulfilling the obligation to withhold social, economic, individual and ba- sic human rights of every citizen, equally stating the duties of a State to create an egalitar- ian and welfare imbibed society. The Constitution highlights the importance of participa- tory democracy. The principle that gave birth to the electoral system in the country and has since its adoption managed to uphold the democracy successfully. Elections are cele- brated as a festival in a democracy; therefore, conducting free and fair elections becomes the most imperative duty as further course of governance depends majorly upon it. The representation allows a large-scale political participation but the issue arises when the means to achieve the representation as an end, takes an ugly turn. The manipula- tion of the electorate has been widely witnessed in recent times. The religious conflicts emerged before independence, but the ugly turn here arises up on the use of the notion of “Nationalism” to gain political mileage. It not only has divided the society at large but also contradicts and disregards the constitutional commitments from every citizen. The journey of nationalism has taken a stark turn in its journey from Colonial to Modern India. Nationalism during colonial rule was a unifying factor that mobilized huge crowds in fighting against the imperial exploitation. The leaders during the freedom struggle cher- ished nationalism as a unifying force against the common enemy. Several movements were launched under the garb of the idea, which managed to gain widespread support and mobilized people to unshackle the colonial chains. The freedom was ultimately achieved at a huge cost, i.e. division on religious lines. India managed to grow out of the religious divide due to the patriotism that was instilled during the struggle amongst ev- ery individual. But, in modern India, the same unifying force has been transformed into a dividing subjection. The nationalist ideology has taken an aggressive turn. Many recent incidents have led to the violent imposition of nationalism over the other. The foundation of nationalism in India was based on ‘tolerance’ but the very tolerance has diminished over the period. The idea causing violence cannot be the nationalism in its very true sense. India’s nationalism is based upon cherishing the democratic values of the country. And, it can only be successful when an institu- tion is formed upon the principles such as acceptance, tolerance, individual dignity and freedom and uphold- ing the rule of law.Page 18

News StoryThe driving force to shower our commitment towards the nation must not be explicit through violent means,but the true sense of our nationalism could be determined by our obedience towards the Constitution of India.It would not only subjugate the overt violent expression but will also create a harmonious and progressivesociety. The framers of the Constitution provided us with a forward-looking document with periodic assess-ments contributing towards it progressive nature thus it is our responsibility to remind ourselves of the verysame commitment and endeavour to achieve “constitutional nationalism” which in its true sense would leadIndia to greater heights.We may still be a young democracy, but we have achieved milestones to maintain it in such a diverse atmospherewith mutual trust and harmony. The Republic Day every year is not only an occasion to present India’s militarymight to the world, but it also comes as a reminder to us, a remainder for upholding cultural and mutual harmonyand a strong reminder of our commitment towards the Constitution of India. Page 19

Liberalization ofLibertatem Magazine - Edition 37the LegalServices Sector By Debajyoti Saha BACKGROUND Recently, there is a huge debate on the liberalisation of the legal services sector in India. It was expected that this drive would go unopposed by anyone, as both the national and international law firms have a huge stake in the legal sector of India. The Ministry of Law and Justice has allowed foreign law firms to practice foreign laws in India. If it is translated into action, the cost of hiring a foreign lawyer from outside jurisdiction would be reduced, as they would already be present in India. Indian lawyers have the competence to face competition from foreign lawyers,, also, foreign law firms are not interested in the area of litigation. IN PERSPECTIVE: PROS OF THE LIBERALISATION The opposition to the liberalisation drive is quite natural, as seen in other sectors as well. For example, in the banking sector, employees went on strike when the liberalisation drive was announced by the Government. We know that Indian firms are allowed to open their branches in various countries. India is also a member of World Trade Organisation; on the basis of the principle of reciprocity, the drive must be welcomed by all the law firms. The Ministry of Law and Justice has to play a major role by acting neutrally, considering the overall development of the legal services sector. The Indian lawyers will definitely benefit with the entry of foreign law firms. The entry-level lawyers will gain exposure to the best international practices, cross-border transactions. Every year, around 80,000 students graduate from colleges in India. The concept of the “brain drain”, as argued by the do- mestic law firms in opposition to the entry of foreign law firms, is baseless. If opportunities are not provided to law graduates in India, they would inevitably choose to practise outside after attaining a law degree there. Now- adays, every law firm is able to make a niche in the market, irrespective of its size, finance, etc. With the entry of the foreign law firms, Indian firms, whether large or small, have to equip themselves with proper skills. Another aspect to be taken into consideration is that the legal services sector of India has already benefited from the liberalization of other sectors. But when it came to the question of liberalization of the law firms, all the do- mestic law firms started questioning the same, which reveals the hypocritical nature of the Sector in India. Domestic law firms have expressed their concern over the limit on the number of partners in a law firm- it cannot exceed twenty partners. The foreign firms will not be subject to any such restrictions and will supersede their Indian counterparts . But, the point to be taken into account is that many law firms have entered into multi-part- nerships and have gone beyond twenty in number. The concept of Limited Liability Partnership has already been introduced in India. Most of the law firms are changing their status from partnerships to LLPs. THE BCI INTERVENTION The Bar Council of India (BCI), under direction from the Ministry of Law & Justice, drafted and notified the Reg- istration and Regulation of Foreign Lawyers in India Rules, 2016. These rules allow the entry of foreign law firms and lawyers in India, and allow them to practice non-Indian laws.Page 20

News StoryThe new draft rules provide for the following:1. Allowing foreign law firms and lawyers to set up an office in India. This is subject to registration with BCI for an initial period of 5 years and practicing non-Indian law.2. Deeming foreign lawyers as Indian lawyers under section 29, 30, and 33 of the Advocates Act.3. Barring foreign lawyers from appearing before Indian courts and tribunals or to provide any advice relating to them.4. Allowing foreign lawyers to hire and enter into a partnership with Indian lawyers.5. Registration fee of $25,000 for individuals and $50,000 for partnership firms.6. Renewal fee of $10,000 for individuals and $20,000 for partnership firms.7. Allowing foreign lawyers to participate in international arbitration in India.8. Refundable security deposit for foreign lawyers to practice in India.9. Registering foreign lawyers on a reciprocal basis.10. The requirement of a certificate from home ministry and bodies equivalent to foreign bar councils.11. Same disciplinary and ethical obligations for foreign and Indian lawyers.On 21st February, 2012, the Madras High Court, in AK Balaji vs. UOI ruled,, “there is no bar either in the Act orthe Rules for the foreign law firms or foreign lawyers to visit India for a temporary period on a fly in and fly outbasis, for the purpose of giving legal advice to their clients in India regarding foreign law or their own system oflaw and on diverse international legal issues.”On 1st February 2018, the Supreme Court heard the Bar Council of India (BCI) petition against practice by for-eign lawyers in India. The counsels argued that foreign lawyers can come and advise their clients on the basis offly-in and fly-out principle, and therefore, foreign law firms need not set up offices in India. It was argued thatthe lawyers who study abroad and are qualified to practice in multiple jurisdictions must be given the opportu-nity to practice in India as well: Indian lawyers are allowed in foreign arbitration matters i.e. international com-mercial arbitration, but the foreign firms are not allowed in India-based arbitrations.Therefore, it is for the lawyers to decide whether to allow the entry of law firms into India. The pros and conshave to be taken into account before taking any decision, as it poses long-term effects on the future of the legalfraternity of India. Page 21

the couBy Swarnalee Haldar, Farhaan S. Haque & Sweta Subudhi

urtroom

Libertatem Magazine - Edition 37High court of Calcutta commutesdeath sentence of 8 murder accused Case by- The state of west Bengal vs. Sri shyamal karmakar and ors. Facts- The case of the prosecution in brief is that the appellants forcibly took away Sourav Chowdhury in the night of 4th July, 2014 and thereafter committed murder of Sourav Chowdhary near Duttapukur railway track. The fur- ther case of the prosecution is that after commission of such murder, the dead body of Sourav Chowdhary was kept on the railay line in order to conceal such offence and to project a police case to the effect that Sourav Chow- dhury died of railway accident . In fact the dead body of Sourav Chowdhury was separated in various parts since the dead body was cut into pieces by the movement of railways on such railway track. Sandip Chowdhury, the brother of Sourav Chowdhury reported the matter to police in black and white and accordingly Duttapukur police station case no. 528 of 2014 dated 05.07.2014 under Section 364/302/201 of indian Penal Code and 25/27 of arms act was started and the investigation ultimately culminated in filing of charge sheet. One liton Talukdar though named in the charge sheet , could not be apprehended and accordingly the charge sheet was submitted showing him as absconder. Sandip chowdhury witness no. 1 Sandip Chowdhury identified the dead body of his brother Sourav chowdhury lying on the railway track. He had not seen the accused to take away Sourav Chow- dhury. He requested his father to inform the police over phone. He had no direct and personal knowledge about the occurrence. Bench- The bench comprising Justice Nadira Patherya and Justice Debi Prosad Dey upheld the conviction of six persons and sentenced them to rigorous life imprisonment. Judgement- The bench, though upheld conviction of all the accused, except two, answered the death reference in negative by observing thus: “On scrutiny of the materials on record we find that the case under reference is simply a case of retaliation and in that view of this case, we are not in a position to accept the case as one of rarest of rare cases. Admittedly, we answer the death reference in negative.” The high court also held that one of the convicts, Shyamal Karmakar shall not be released from custody till the completion of his 30-year imprisonment towards the sentence of life imprisonment. The said convict had abused the trial court on the date of delivery of judgment saying that court would not do anything to him though he had committed such an offence.Son Must Shoulder both Assets andLiabilities of Deceased Father In a recent development Madras High court has ruled that sons when they inherit from their father, they inherit not only their assets but also their liabilities. Facts A petition was filed in High Court of Madras by A. Ravichandran against an order of Chennai Corporation Zon- al Officer by which he was asked to pay 10 lakh rupees as the liability to one Adhilakshmi. Adhilakhmi is the legal heir of Mr. Narasimhan a sanitary worker hired for cleaning drains. Mr.Narasimhan died in course of his employment when he was washing a septic tank in the house owned by petitioner’s father.Page 24

CourtroomIssuesThere were 2 main issues in front of the Hon’ble High Court1. Is Mr. A.Ravichandran liable to pay 10 lakh rupees to Adhilakshmi?2. Is delay of 15 years in asking for compensation justified on the part of Adhilakshmi?JudgementPetitioner contended that compensation money was already paid by his father and delay of 15 years in asking forcompensation is not justified and the order of Chennai Corporation Zonal Officer should be quashed.Justice S. Vaidyanathan did not accept petitioner’s contention and disposed of the writ petition filed by petitionersaying that “When a father’s assets are passed on to his sons after his death, so are his liabilities,”.He further elaborated his reasoning by stating concept pf pious obligation mentioned in Dharma Sastras,He add-ed that non-payment of debt leads to unbearable suffering in the next world and is a great sin. Furthermore, hegave the example of Lord Rama’s obligation to satisfy his father’s promise to his step-motherYour lordship, however, reduced the total amount to be paid from 10 lakh to 7.5 lakh and added that the saidamount will be paid through online bank transfer to circumvent the complaints of government officials askingcommission before handing over cheques to the beneficiaries.Court held the petitioner and the official jointly, severally and vicariously liable to pay compensation to the legalheir of the deceased. Out of the award of 7.5 lakh rupees, Petitioner was ordered to pay an amount of 5 lakh ru-pees and the remaining 2.5 lakhs was to be paid by the corporation. Moreover, Court also added that this awardshall not prevent Adhilakshmi and other legal heirs to claim the balance amount of 2.5 lakh provided they areable to prove that there was no delay on their part in claiming the amount.Learning outcomeFrom this case, we learn that when it comes to inheritance children inherit assets and liabilities as well from theirparents. The law won’t allow the innocents to feel unsafe. One cannot deny the existence of any liability just be-cause the person liable is dead. Liability will carry on and the heir must provide for the discharge.Domino’s Pizza To Shell Out 9.5 LakhRupees As A Fine For Using UnfitCheeseInternational pizza chain Dominoes has been slapped with a fine of 9.5 lakh rupees by Additional District Magis-trate of Shahjahanpur for using cheese unfit for consumption in their pizzas.FactsOn 4th July 2011, food security officer Yugul Kishore took a sample of cheese from an outlet of Dominos at Shah-jahanpur and dispatched it for the lab test at government regional public analysis laboratory in Varanasi. Aftercomplete and detailed examination of the sample sent, Food analyst UC Gangwar reported that the milk fat inthe diced super stretch Mozzarella cheese sample was below 35 percent. 35 percent milk fat is the minimum levelprescribed by the Food Safety and Standard Authority of India in Mozzarella cheese to be fit for consumption.The report was sent to the food security officer on 5th August 2015 after the lab tests on the sample were finishedin-between 22 July to 28 July 2015.A case was filed against Jubilant Food Works (franchisee for Domino’s pizza), Schreiber Dynamic Dairies inPune(the supplier) and the seller Suresh Upadhyaya after serving them with an official court notice. Page 25

Libertatem Magazine - Edition 37 Judgement The trial lasted for almost two years and during the course of the trial defendant even filed a counter case argu- ing that sample of cheese taken was not kept under advised conditions. The court found all the three defendants guilty and imposed a fine of 9.5 lakh rupees out of which district manager of Jubilant Food Work has to pay 4 lakh rupees. The supplier Schreiber Dynamic Dairies in Pune has to pay 5 lakh rupees and the remaining balance of rupees 50 thousand rupees will be borne by the seller Suresh Upadhyaya. Moreover, Additional District Magistrate of Shahjahanpur JK Sharma added that “the sample failed to pass the lab test and it was a serious issue as they were not delivering what they have promised.” Spokesperson of Jubilant Food Works stated that same batch of cheese at a NABL- certified lab confirms that the fat content in the cheese is as per the limit mentioned by the Food Safety and Standards Authority of India. District manager of Jubilant Food was unaware of the fine imposed in this matter and added that all legal issues were being dealt with Jubilant Foods including this one as well. Learning Outcome Food Safety and Standard Authority will not allow any food producer big or small, to sell food-products in Indi- an markets which do not fulfill safety requirement and standard of quality prescribed by it.Google To Pay Penalty Of 136 CroreFor Anti-Competitive Conduct In India Internet search giant Google has been penalised rupees 136 crores by Competition Commission of India for abus- ing its dominant position and imposing unfair conditions. Facts Consim Info private limited (Informant) alleged that Google causes harm to advertisers and consumers by conducting its main business in a discriminatory manner and at the same time favoring its own services and partners over third parties thereby, creating an uneven playing field. The informant also alleged that Google is abusing its dominant position in the market for online search through practices leading to search bias, search manipulation, denial of access to competing search engines and creation of entry barriers. Competition Commis- sion of India ordered Director-General to investigate the matter. Director General submitted its report conclud- ing that Google indeed abused its dominant position in the relevant market of General Web Search Service and Online Search Advertising in India. After going through the report and reply of the parties commission framed the following issues. Issues • What is the relevant market(s) in the present case? • Whether Google is dominant in the said relevant market? • Has Google abused its dominant position in the relevant markets? Judgement The commission agreed with Director General on the first issue that General Web Search Services is distinct with Online Search Advertising Services and not substitutable with each other as the scope of two markets is very broad. General Web Search Services cannot be equated website search. Online Search Advertising Services are used for demand fulfilment and unique from advertiser’s perspective as it allows highly targeted advertisements by providing exactly what is asked for. India was the relevant geographic market for both the relevant markets. On issue no.2 Commission concludes that Google is dominant as it has an exponentially greater market share than its nearest competitor. Moreover, Google’s buying power, size, resources is way more than its competitors which further cements its position as a dominant player in the relevant market. Commission found GooglePage 26

Courtroomabusing its dominant position in 3 major areas 1) Rankings of Universal Results were not displayed by relevancebut were rather pre-fixed which was unfair and liable to be punished. 2) Displaying Google’s specialized flightoptions with prominent display and commercial flight unit amounts to unfair imposition and was in contradic-tion to Section 4(2)(a)(i) of the Competition Act 2002. Lastly, Google imposed restrictions on publishers whichprevented them from obtaining services of competing search engines. On the issue of penalty, Commission saidtwo objectives should be kept in mind which are a) to reflect the seriousness of infringement b) to ensure that thethreat of penalties will deter the infringing undertaking. Commission to decide the amount considered the sumtotal of the revenues generated by Google as provided by them and accordingly levied a penalty of 5% of theiraverage total revenue generated from India operations from its business segment for financial years 2013, 2014and 2015 which equals around 135.86 Crore.Learning OutcomeFrom this decision, we learn that no matter how big a company is, it cannot escape the long hands of law andlaw will not allow such a company to impose unfair conditions on small players because of its size.Summon Without Specific Day, Date,Year And Time Cannot Be ConsideredAs Validly ServedCase Name:Auto Cars v. Trimurti Cargo Movers Private LimitedCitation:Civil Appeal No. 2113 of 2018Decided on 16.02.2018Supreme Court rules that service of summon to a defendant without specifically mentioning the day, date, yearand time cannot be held as duly served summon within the scope of Order IX Rule 13 of the Civil ProcedureCode.FactsAn appeal was filed in the Supreme Court of India against the final order and judgment of Division Bench ofHigh Court of Calcutta. It had passed an ex-parte order against the appellant confirming the decision of the sin-gle judge of High Court. Respondent No.1 in the present case had filed a civil suit for recovery of the amount of1,43,18,537 rupees against the appellant under the original jurisdiction of Hon’ble High Court.Amount to be recovered was due some commercial dealings exchanged between the parties in relation to ser-vices and supply of goods. The summon from High Court were sent to the appellant’s place of business whichwas stated in the cause title of the plaint. After delivery to the appellant failed through the ordinary course ofservice, the respondent with permission of High Court decided to serve the appellant by way of publicationunder Order 5 Rule 20 of the Code of Civil Procedure. The concerned summon was published in The Times ofIndia, Pune Edition, and Dainik Bhaskar, Aurangabad Edition on 25.11.2014. Defendant failed to appear, as aresult, Court decided the matter according to merits and issued an ex-parte decree.Appellant filed an application on 08.03.2016 under Order 9 Rule 13 requesting the court to set aside the ex-partedecree as no summons were duly served to them and they were totally unaware of the legal proceedings againstthem. Defendants further contended that their place of business was Aurangabad and summon was publishedin Pune edition of The Times of India and this was sufficient reason to set aside the ex-parte decree. Single Judgedismissed the application of the appellants. Appellant filed an appeal before Division Bench of High Court whichwas also rejected. Page 27

Libertatem Magazine - Edition 37 Issues 1. Can a summon be held to be duly served in absence of specified a date, day, time and year? 2. Does the word time under Rule 5 Order 20 (3) include date, day, time and year? Judgement Supreme Court in the very beginning of the case allowed the application of appellant under Rule 9 Order 13 and set-aside the ex-parte order passed against them. Furthermore, Supreme Court also stated that under section 27 of the Code of Civil Procedure, Court is required to mention a specific day, date, year and time for the defen- dant’s appearance. This requirement cannot be done away with even if service is issued through publication under Order 5 Rule 20(3) by the orders of the Court. Moreover, Court said that word time under the said rule has to be read with section 27 and includes day, date, year and time. Learning Outcome From this decision, we learn that summons should include a fixed date, day, year and time for it to be valid in the eyes of law. It is a compulsory requirement and not an empty formality. A mere statement saying that defen- dant should present himself before the Registrar of Court within 15 days from the date of service is not valid and will not stand in court. Supreme Court issues directions for effective implementation of Juvenile Justice The Supreme Court on Feb 13 has directed all the state governments to set up child welfare boards and juvenile courts. The top court also requested the chief justices of all high courts to register proceedings on their own for effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015. It asked all the high courts to seriously consider establishing child-friendly courts and vulnerable witness courts in each district. Bench A Supreme Court bench comprising of Justice Madan B Lokur and Deepak Gupta was hearing a Public Interest Litigation filed by human rights activist Sampurna Behrua, seeking court’s intervention to ensure effective imple- mentation of Juvenile Justice Act, 2000 by all the states. Facts There were several chief justices’ conferences held in 2006, 2009, 2013, 2015 and 2016 about the need to ensure the adequate and effective implementation of the Juvenile Justice Act. As a part of the resolutions passed in these conferences, the Supreme Court noted that every high court has a constituted Juvenile Justice Committee that is headed by a judge to take stock and address issues that concern children. Besides this, the Chief Justice of India also set up a Committee to address issues of implementation of child welfare laws. Acknowledging that the Bench might be criticized for excessive judicial activism, it stated that the government has done very little for implementation of the Act in its true spirit: “Over the last decade or so, state governments and Union Territories have not fully complied with the provisions of a law solemnly enacted by Parliament for the benefit of children. In many instances, only cosmetic changes have been introduced at the ground level with the result that voiceless children continue to be subjects of official apathy.” Proceedings The bench has also directed the Ministry of Women and Child Development and the State governments to en- sure that all the position in the National Commission for Protection of Child Rights (NCPCR) and the StatePage 28

CourtroomCommissions for Protection of Child Rights (SCPR) are filled up well in time and adequate staff is provided tothese statutory bodies so that they can function effectively and meaningfully for the benefit of the children.The Supreme court had in 2015, ordered every state to establish a Juvenile Justice Board by December 31, 2015.The court had also identified the various problems that have to be dealt with for the effective implementationof the Juvenile Justice Act. These included the establishment and training of Juvenile Justice Boards and ChildWelfare Committees in every district, appointment and training of Probation Offices.JudgementThe apex court’s order came on a PIL seeking implementation of the Juvenile Justice Act and its rules. On 9 Feb-ruary, the Supreme Court took the extant government to task for the “tardy if not virtual non-implementation”of juvenile justice laws, and ignoring the plight of “voiceless if not silenced” children of India, after a public in-terest litigation (PIL) was initiated by activist and human rights defender, Sampurna Behura. The apex court alsorequested chief justices of all high courts to establish child-friendly courts and vulnerable courts in each district.Cancelling of all iron ore mint in Goaon 8th of Feb by Supreme CourtFactsThe Supreme Court on 8th of Feb, cancelled 88 iron ore mining leases in Goa, dealing a blow to miners includ-ing Vedanta Ltd. The court said that the existing leases will run till 15 March, after which mining activity has tostop. The court also directed the setting up of a special investigation team that will include a chartered accoun-tant to determine the charges to be levied on the mining companies whose leases were renewed in 2015. Sharesof Vedanta Ltd fell 1.96% to Rs315.35 on BSE, on a day the exchange’s benchmark Sensex dropped 0.33% to34,082.71 points.ProceedingsThe Supreme Court heard a public interest litigation by the Goa Foundation. The petition had questioned therenewal of mining leases in the state. The Goa Foundation, through its lawyer Prashant Bhushan, had arguedthat the state’s policy on renewing leases did not conform to the Supreme Court’s stand on optimum utilizationof natural resources.Advocate Bhushan contended that the state government has to auction the mining leases instead of renewingthem. He said that the mines ordinance approved on 12 January 2015 did not spell out a renewal procedure. Allrenewals were done before the ordinance came into force, he said, with 31 leases being renewed on 12 January2015.The Mines and Minerals Amendment Bill was subsequently placed before Parliament and approved on 27 March2015.The Goa Foundation’s petition, a copy of which Mint has reviewed, alleged that miners and government author-ities had colluded to circumvent not just the ordinance, but also the Supreme Court’s ruling of 21 April 2014. Therenewal was against the court’s precedents laid down for the appropriate and optimum utilization of naturalresources, the petition claimed.According to the petition, 56 leases were renewed between 6 and 12 January 2015,shortly before the ordinance was passed.The petition has named 20 miners whose leases have been renewed. Some of these companies had earlier movedthe Bombay high court seeking to direct the Goa government to consider and grant a second renewal of miningleases. It was on their petition that the Panaji bench of the ombay high court had on 13 August 2014 directed thestate government of Goa to execute a second renewal of leases in favour of companies that had paid the requiredstamp duty. Page 29

Libertatem Magazine - Edition 37 In 2016, the Goa Foundation had appealed this decision before the Supreme Court; that case is also being heard in the current batch of cases. The appeal said that the order “disembodies the directions” of the court. Bench The Supreme Court bench, headed by justice Madan B. Lokur, held the government’s process of renewing the mining leases of companies to be “in violation of law” and directed the state government to grant fresh licences through an auction. Judgement The Supreme Court on Feb 8 quashed 88 mining leases granted by the Goa government for violating procedure and ordered that fresh licences be granted through a bidding process.Supreme Court decides the CauveryWater Dispute Facts Putting to rest a 126-year-old emotive dispute over the sharing of Cauvery water, the Supreme Court increased Karnataka’s entitlement on Friday by 14.75 tmcft to 284.75 tmcft and reduced Tamil Nadu’s share to 404.25 tmcft while keeping allocations for Kerala and Pondicherry unchanged. Kerala will access 30 tmcft and Pondicherry 7 tmcft and the award that now has the SC’s seal can be re-examined only after 15 years, in 2033. This brings down the curtain on a volatile issue that has roiled Karnataka and Tamil Nadu politics for long while also giving suc- cessive governments at the Centre a headache. Bench and the court proceedings A bench of Chief Justice Dipak Misra and Justices Amitava Roy and A M Khanwilkar gave a unanimous verdict making a minor change in the 2007 award of the Cauvery Water Disputes Tribunal (CWDT), which had, of the total available 740 thousand million cubic feet (tmcft) of water, allotted Tamil Nadu 419 tmcft, Karnataka 270 tmcft, Kerala 30 tmcft and Puducherry 7 tmcft, while keeping aside 10 tmcft for environment protection and 4 tmcft as inevitable discharge into sea. Authoring the judgment, CJI Misra said the share of Karnataka was increased by 14.75 tmcft because the CWDT had not taken into account two crucial factors - the availability of 10 tmcft groundwater to Tamil Nadu from the Cauvery basin and 4.75 tmcft of water required to satiate the drinking water requirements of residents of Bengal- uru, a city with “global status”. The award was welcomed by the Karnataka government. The reactions in Tamil Nadu were more negative with the opposition DMK criticising the ruling A Justifying higher allocation to Karnataka, the SC said, “[The] Drink- ing water requirement of the overall population of all the states has to be placed on a higher pedestal as we treat it as a hierarchically fundamental principle of equitable distribution.” The court found fault in CWDT’s approach that only one-third of Bengaluru city fell within the Cauvery basin and also its presumption that 50% of drinking water needs could be met from groundwater supply. “Keeping in mind the global status the city has attained, an additional 4.75 tmcft is awarded to Karnataka,” it said.IADMK for not defending the state’s interests. The CJI-led bench said, “In view of the allocation of additional 14.75 tmcft water to Karnataka, the state would now be required to release 177.25 tmcft water (instead of 192 tmcft it used to release earlier as per CWDT award) at inter-state border with Tamil Nadu, that is at Billigundulu,” the bench said, adding the allocation decided by it would remain in force for 15 years. Earlier, 192 tmcft water used to be released from Billigundulu to TN as per CWDT directions in a phased manner. The SC said since the total release from Billigundulu has been reduced to 177.25 tmcft, the monthly releases would be proportionately cut. Rejecting the Centre’s stand that it had discretion to frame a scheme for the implementation of the judgmentPage 30

Courtroomallocating Cauvery waters, the CJI-led bench said: “We direct that a scheme shall be framed by the central governmentwithin a span of six weeks from today so that authorities under the scheme can see to it that the present decision which hasmodified the award passed by the tribunal is smoothly made functional and the rights of states as determined by us are appo-sitely carried out.” It said no extension would be granted.JudgementIn a landmark verdict that casts a long shadow on southern politics, Tamil Nadu’s share of water from the riverCauvery has been reduced by the Supreme Court and Karnataka will receive a bigger share. Karnataka will nowrelease 177.25 TMC or thousand million cubic feet to Tamil Nadu instead of 192. Karnataka’s increased sharetakes care of the drinking water problems of its capital Bengaluru. Page 31

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