CAN INDIAN NAVY AFFORD A MUTINY?

The Indian Navy has ordered a high-level probe into an incident of insubordination and assault by some young sailors on a senior officer on board its survey ship INS Sandhayak off the coast of the eastern state of Odisha. They now face disciplinary action. The INS Sandhayak, under the Eastern Naval Command, is used by the Indian Navy to carry out shallow coastal and deep oceanic survey and collect oceanographic and geophysical data. On 09th March, 2017, the Indian Navy issued a press statement about the 'incident of insubordination' aboard its survey ship INS Sandhayak in which, reportedly, 'four sailors' were involved. The sailors not only 'disobeyed orders' but also exchanged blows with officers on the high sea'. Several words used in the statement need to be noted: 'insubordination', 'disobedience', 'blows', among others. The Navy clarified that the word 'mutiny' cannot be applied to describe the incident, as it did not involve a rebellion by the entire crew of the ship. This clarification needs to be revisited with all sincerity. If one refers to Sections. 42, 43, 45, 47 and 48 of the Navy Act, 1957, which largely deals with disciplinary provisions one realises that the incident pertains to discipline and discipline only. While Section. 42 deals with the description of mutiny, the other Sections pertain to the various disciplinary actions that are undertaken in case of mutiny or disorderly behaviour.

Hereunder is a brief description of the aforementioned Sections for a better understanding.

Section. 42: Mutiny is defined as, "Mutiny means any assembly or combination of two or more persons subject to naval law, the Army Act, 1950, or the Air Force Act, 1950, or between persons, two at least of whom are subject to Naval Law or any such Act..."

Section. 43: Punishment for mutiny. "Every person subject to Naval Law, who joins in a mutiny, shall be punished with death or such other punishment as is hereinafter mentioned".

Section. 45: Punishment for striking superior officers. "Every person subject to Naval law who commits any of the following offences or strikes or attempts to strike his superior officer, draws or lifts up any weapon or uses or attempts to use any violence shall be punished with imprisonment which may extend to ten years or five years".

Section. 47: Punishment for disobedience and insubordination. "Every person subject to Naval Law, who wilfully disobeys his superior officer or shows or expresses intention to disobey his superior officer or uses insubordinate, threatening or insulting language or behaves with contempt to his superior officer shall be punished with imprisonment which may extend to ten years or three years". 

Section. 48: Punishment for quarrelling and disordely behaviour. "Every person subject to Naval Law, who quarrels, fights with or strikes any other person or uses provoking speeches or behaves in a disorderly manner shall be punished with imprisonment for a term which may extend to two years".
From the above, it is abundantly clear that there is a disconnect between the relevant sections of the Navy Act, 1957 and the press statement issued by the Indian Navy.
According to IHS Jane's Fighting Ships 2016-2017, Sandhayak is a 1981 product of Garden Reach Shipbuilders & Engineers (GRSE) and carries a 'complement of 178 (18 officers) plus 30 scientists'. Does it then imply that only if the entire crew, including the 30 scientists, had resorted to collective indiscipline and insubordination, it would have been classified as a mutiny? Time to pause and ponder. 
What makes the matter slightly serious is that this is not a 'one-off type incident' or 'mutiny', but is part of a series of 'incidents', which have been reported during the past several months for all the wrong reasons, thereby putting the Indian Navy in a spot. Is there any gang or system or foreign hand operating behind this? It is indeed a tricky situation. All the more because the Indian Navy thus far has fared much better than the Indian Army and Indian Air Force so far as the indigenisation programme is concerned. And let us face it, except Russia and Japan, no foreign nation - however friendly - will accept an indigenously-built powerful Indian fleet operating across the Indian Ocean. Any failure to recognise this fundamental point would only put the Indian Navy's laborious indigenisation enterprise into peril.
Critics here may question the fairness and neutrality of singling out Russia and Japan. Point indeed; but there are good reasons. Both Moscow and Tokyo have found the Indian Ocean beyond their strategic goal. Moscow, even in its Soviet-era heyday, could rarely break through the 'choke points' of the Black Sea (encircled by foreign land), Gulf of Bothnia and the Siberian port of Valdivostok (winter snow). No doubt they built a formidable navy aircraft-carrier Admiral Gorhkov, but they could rarely match the operational resilience of the Western fleet in the Indian Ocean.
The Japanese Navy too has traditionally been active on the Pacific Ocean owing to its proximity and vastness. Except for its momentous success of sinking the Royal Navy battleship HMS Prince of Wales and battle-cruiser HMS Repulse on 10th December, 1941 in the South China Sea, it has rarely ventured into the Indian Ocean. Hence, both Russia and Japan are unlikely to have strategic clash of interests with regard to India. Since Western navies have been naval pioneers and dominated global naval affairs since the beginning of the 16th century, their retreat in this century cannot be accepted, or acceptable. Dependence to independence may be desirable for India but its unlikely to be so for the powers of yester-years.
One hopes and prays that the happenings onboard INS Sandhayak referred to as micro 'incident' and not a 'mutiny' is just so. A few words of caution here to avoid such situations in the future. A survey ship is not a warship. It does not have the rigours of excitement or tension of action. Hence, it is surprising that an episode like this happened on a non-combat vessel, as the human mind normally cracks under pressure. One hopes Section. 46 of the Navy Act, 1957 dealing with ill-treatment will be looked into when punishing the sailors. The Act clearly states: "Every person subject to Naval Law who is guilty of ill-treating any other person...being his subordinate in rank or position, shall be punished  with imprisonment up to seven years". Thus, whichever way one may look at INS Sandhayak, it does not give me any pleasure but to warn that choppy waters lie ahead as the Indian Navy rises in stature, status and strength.
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BREAK THE STALEMATE.

Given the unequivocal stand of the Narendra Modi government in its submissions to the Apex Court, it is very likely that the Supreme Court will outlaw triple talaq. However, this will not bring BJP any closer to its manifesto promise of introducing the Uniform Civil Code (UCC). Most people rooting for enactment of UCC are under the mistaken impression that only Muslims and Christians follow their customary or religiously ordained laws. There are countless examples to establish that customary practices have not vanished among Hindus, despite countless reforms introduced since the 1950s codification of laws.

Hindus by and large continue folloowing customary practices prevalent among their respective castes, sects and communities even though laws enacted by the state for the Hindu community have been totally secularised. For instance, most Hindu groups avoid intra-gotra marriage because they consider people belonging to the same gotra as sharing a brother-sister bond. Therefore sagotra marriage is treated as bad as incest even thoudh there is no bar on sagotra marriages in the Hindu Marriage Act.

It defies comprehension why the supposedly progressive Nehru government chose to institutionalise the practice of India's secular courts doing out justice as per religious laws of different communities, even though Article. 44 of the Directive Principles of State Policy in the Indian Constitution clearly mandates that "the state shall endeavour to secure for all citizens a Uniform Civil Code throughout the territory of India".

It is equally puzzling that those who defend the divine sanctity of Muslim personal Law have willingly submitted to adjudication by India's secular courts where non-Muslim judges unfamiliar with the intricacies of Islamic law and zero knowledge of Arabic decide matters ostensibly based on Sharia and Quran. It's as good as having IAS officers manage the affairs of mosques and deliver Friday sermons or lead Eid prayers. Today even raising this issue threatens to tear as under the Indian polity because all self-styled secular parties have tarred this constitutional promise as part of BJP's Hindutva project. Hence the virulent stalemate over UCC. But the solution to this contentious problem is actually quiet simple.

I present below a proposal I had offered in 1985 soon after the furore that broke out with the Supreme Court judgment in Shah Bano case. It has the potential to break the stalemate on UCC without either coercing Muslims and Christians into reform or compromising the constitutional promise of equal citizenship rights to all. Its points can be summarised as follows:

• India's secular courts should stop adjudicating disputes on the basis of personal laws of any community - be it Hindu, Muslim, Christian or Parsi.
• Instead, the state should confine itself to adjudicating cases only under the existing secular laws such as the Indian Marriage Act, Indian Divorce Act, Indian Succession Act, Indian Wards and Guardianship Act. These should be applicable to all citizens that choose to approach secular courts, irrespective of caste, creed, gender or religion. But these laws need to be carefully reviewed and improved in order to make them egalitarian and gender just.
• Those who wish to continue with religio-customary practices of their community should be free to do so provided they don't expect India's secular law courts to be saddled with the burden of adjudication and enforcement. Let the onus of ensuring compliance with customary laws rest with consensually accepted authority figures of that community - be it the local imam or granthi, the family priest, caste panchayat or the spiritual gurus of the concerned sects.
• However, if even one party to the family dispute feels dissatisfied with the verdict of the authority adjudicating customary law, he/she should have the right to approach the secular courts where the dispute should be adjudicated only within the framework of secular laws applicable to all. 

Those who think this amounts to giving a free hand to retrogressive elements among Hindus, Muslims, Christians, Sikhs, Parsis would do well to remember that family laws enacted by the state, including provisions of the Indian Penal Code, come into play only when someone invokes their protection through the police and law courts. For example, the current law against bigamous marriages among Hindus works in favour of only those Hindu women who choose to sue their husbands in a court of law. A Muslim woman who accepts the second or third marriage of her husband or doesn't legally lodge a complaint after being arbitrarily abandoned is not going to benefit even if the arbitrary triple talaq is declared illegal. This is true not just for India but also for countries that give no legal recognition to Muslim or Hindu Personal Law as India does. 

There is now concrete evidence that when better options are available neither Muslim nor any other group of women hesitate from availing of them. Today, a growing number of Muslim women are filing cases under Dowry Prohibition Act as well as the laws against domestic violence, even though these laws don't draw legitimacy from the Holy Quran or the Shariat. Neither the All India Muslim Personal Law Board nor any mullah or maulvi has dared openly prohibit Muslim women from doing so. This is because these laws don't have the word 'Hindu' attached to them. 

Though these community neutral laws have several flaws, they have had the salutary effect of bringing Hindu, Muslim, Christian, Sikh, Buddhist, Tribal and Non-Tribal women on a common platform to fight for what are common problems for women of all communities. Therefore, if we are serious about a UCC, let us do away with laws with a communal tag and let the two systems compete with each other on the basis of voluntary compliance.

[Based on an article written by Madhu Purnima Kishwar published in Times of India dated 23rd March, 2017 (Tuesday), p. 12].

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JUDGMENT NEEDED IN AYODHYA DISPUTE.

The Supreme Court urging parties to the Ram Janmabhoomi-Babri Masjid dispute to make another attempt at resolving their differences through negotiations has come as a bit of a surprise. The dispute, which saw the demolition of the Babri Masjid in Ayodhya in 1992, has dragged on for decades. The Allahabad High Court attempted to resolve what amounted to a complicated legal tussle with its judgment of 30th September, 2010. However, this was stayed by the Apex Court on 09th May, 2011. Against this backdrop, the Apex Court's latest insistence on negotiations - including Chief Justice J.S. Khehar offering himself as a possible mediator - is certainly well meaning. But it is unlikely to yield results. Earlier attempts at out-of-court settlements have failed to make any headway for decades. And there is nothing to suggest that things have changed in this regard now. On the contrary, with BJP's electoral victory in March 2017 in Uttar Pradesh, the Hindu parties to the dispute could be seen as having a distinct advantage. This makes negotiations on the basis of equality implausible.

Given this scenario, it will be far more pragmatic for the Supreme Court to hear the case and provide a final judgment on the title of the disputed land. In this regard, it is expected that the Apex Court will go strictly by the law. Everything else is extraneous - whether they be political 'sentiments' (in which case the judiciary is superfluous) or a judge's personal moral preferences (which would constitute judicial overreach). A reference to sentiments is not enough as there can be contrasting sentiments on any issue. Giving free rein to sentiments is a recipe for anarchy and the dispute has triggered enough rioting and destruction already.

A way to un-complicate the seemingly intractable issue may be to treat it as a local dispute between the Nirmohi Akhara and the Sunni Wakf Board, and disregard politically supercharged interventions that have occurred since Partition. Additonally, there's no denying that the demolition of the Babri Masjid was an act of criminality for which recompense needs to be made. Taking all of this into consideration, the Supreme Court should expedite the hearing of the Ram Janmabhoomi- Babri Masjid case. It should not allow any new parties to join the case and give its judgment on the basis of constitutionality and law.

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POLITICAL LINKS CANNOT DECIDE GOVERNMENT LAWYERS.

An advocate's performance in courts, and not his political connection, would count for her/his appointment as government lawyer, the Supreme Court has said dismissing the Bihar government's plea for a free hand in making appointment of government lawyers. The Nitish Kumar government engaged Attorney General Mukul Rohatgi in addition to Standing Counsel Shoeb Alam to challenge the Patna High Court's judgment directing the State to follow the model procedure set by the Apex Court for appointment of Government Lawyers for District Courts and Additional Advocates General (AAG) for Punjab and Haryana. The two states were infamous for appointing dozens of advocates as AAGs merely because of their proximity to politicians.

Rohatgi argued before a Bench of Chief Justice J.S. Khehar and Justices D.Y. Chandrachud and Sanjay Kishan Kaul that the state already has put in place a litigation policy which envisages a process for appointment of Government Lawyers. "Where will this end? If the High Court can direct today how Government Lawyers should be appointed, tomorrow it would be for public sector enterprises, panchayats and other semi-government organisations", he said.

With the common knowledge that governments are the biggest litigants, The CJI-headed Bench said: "The cases involving the governments were crucial in many aspects touching key areas of governance. A certain degree of competence was required from the advocates to represent the government and render  meaningful assistance to the courts. Have some mercy on the courts too. Mere connection with politicians should never be the criteria to appoint an advocate as government lawyer.

With these remarks, the Supreme Court dismissed the Bihar government's appeal against the 17th November, 2016 judgment of the Patna High Court, which had asked the state government to adopt the Punjab and Haryana model dictated by the Apex Court for selection of Government Lawyers in Brijeshwar Prasad case in 2016. The Apex Court had also said that though these directions were for Punjab and Haryana, other states would do well to reform their system of selection and appointment of Government Lawyers to make the same more transparent, fair and objective. The High Court had faulted the Bihar litigation policy saying it did not satisfy the criteria of transparent, fair and objective appointment process. 

In Brijeshwar Prasad case, the Apex Court had regretted that "the states continue to harp on the theory that in the matter of engagement of state counsel, they are not accountable and that engagement is only professional and/or contractual, hence, unquestionable. It is too late in the bay for any public functionary or government to advance such a contention leave alone expect this court to accept the same".

It said: "The government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous consideration (read political connection of advocates)".

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KEEP YOUR PERSONAL LIFE STRICTLY PRIVATE.

Many young and vulnerable teenagers have admitted to sharing personal photos and information on social networking sites like Instagram, Facebook and Snapchat. The craze for innovative selfies has led many of them to even click semi-nude or nude photos and share it with their close friends. The problem is, if these photos ever gets leaked publicly into social networking sites, they become viral. There have been many cases where criminals (juveniles themselves) have blackmailed young and innocent teens based on these pictures.

Yet another dangerous trend among teens is that while they start experimenting with sex, they are also shooting videos of the act. Here again the danger is, if it leaves the person's phone, it can spread virally. There is ahuge industry that laps up child porn and sex videos online. They are always on the lookout for such content.

We never know what we will get sucked into. Be smart - do not share intimate photos on social networking sites. That's very dangerous. Keep your personal life strictly private.

Word of caution: The online world is a scary place. Think again before posting immediate, romantic or PDA Photos.

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ARE EVMs REALLY TAMPER-PROOF?

The brouhaha over the electronic voting machines or EVMs is nothing new. Leaders - cutting across party lines - have in the past raised doubts on the machines' integrity. Some researchers have even claimed that they could break into EVMs. In 2010, the BBC reported that after connecting a home-made device to an EVM, University of Michigan researchers were able to change results by sending text messages from a mobile phone. Hari Krishna Prasad Vemuru, Managing Director of Hyderabad-based NetIndia Pvt. Ltd., a technology solutions firm, have showed on local TV how an EVM could be rigged.

Mr. Vemuru who also participated in the University of Michigan research, claimed, "The EVM chip could be replaced with a look-alike and instructed to silently steal a percentage of votes in favour of chosen candidate". Until that time, the Election Commission of India had been claiming that their EVMs were in safe custody", he told Medhanet, a technology consultancy website. He was arrested for allegedly stealing an EVM from Mumbai, and was later released. He claimed a person gave him the EVM to see whether it could be broken into. He said he returned the machine to the person after showing how it could be rigged.

One of the reasons why allegations of EVM tampering refuse to die down could be lack of trust in technology. What happens after one pushes that button on the machine rests on blind faith in science. A parallel may be drawn on such a lack of trust in digital devices from demonetisation in November, 2016. Before high-value notes were banned, mobile wallet firms struggled to make decent money although the infrastructure was sound.

The first widespread use of EVMs was in 1964 US Preidnetial election in seven countries. In 1975, the US National Bureau of Standards published a study, which identified three main problems in using computers to tally votes. They were: "Management failures, such as failures to institute adequate equipment and procedure testing; human operational failures, such as errors in operational failures, such as problem errors...".

In India, EVMs made in 1989-90 were used on an experimental basis for the first time in 16 Assembly constituencies in Madhya Pradesh (five), Rajasthan (five) and Delhi (six) in the 1998 Assembly polls. The Election Commission of India (ECI) has maintained that the machines cannot be tampered with. The ECI has relied on science and the finality of electrical signals in its defence and has avoided walking on the quicksand of political accusations. But allegations of tampering have flown thick and fast. 

Back in 2009, when the United Progressive Alliance came to power again after the general elections, Bharatiya Janata Party leaders Subramanian Swamy and G.V.L. Rao found something fishy with the EVMs. Rashtriya Janata Dal chief Lalu Prasad Yadav recently told reporters that the EVMs should be examined as they "were made in Gujarat and were supplied from there". Prime Minister Narendra Modi belongs to Gujarat. The Supreme Court in 2009 dismissed Mr. Rao's petition. The election watchdog then came out with answers detailing point-by-point steps on the process that it followed to check "alleged fallibility" of EVMs. Petitions filed before at least three High Courts were also dismissed.

But the results in the 2017 Assembly elections have once again caste doubts over the integrity of the EVMs. The Aam AADmi Party (AAP), nursing a grudge against the winners in Punjab, and the Bahujan Samaj Party, unable to fathom why it lost the plot in Uttar Pradesh, want the authorities to check the integrity of EVMs. The Samajwadi Party has also joined the chorus.

EVMs over the years:

• The first widespread use of EVMs - comprising a punch-card and a computer to tally the votes - was in the 1964 US Presidential election in seven countries.
• In India, EVMs made in 1989-90 were used on experimental basis for the first time in 16 Assembly constituencies in Madhya Pradesh (five), Rajasthan (five) and Delhi (six) in the November 1998 Assembly polls.
• The 2004 general polls was the first national elections in which EVMs, made by state-run Bharat Heavy Electricals Limited (BHEL) and Electronics Corporation of India Limited (ECIL). were used.

Security Risks: 

• In 2010, University of Michigan researchers claimed they could break into EVMs.
• Indian Techie Hari Krishna Prasad Vemuru also showed on local TV how to rig an election machine in 2010.

Court cases:

• In 2009, BJP leaders Subramanian Swamy and G.V.L. Rao alleged that EVMs had been tampered with after the Congress came back to power.
• A petition was filed with Supreme Court, which dismissed Rao's petition.
• Similar petitions were filed before the Chennai High Court, the Mumbai High Court and the Madhya Pradesh High Court (Jabalpur Bench).
• The Mumbai High Court dismissed the petition.

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SUPREME COURT: ANTHEM ORDER A CASE OF OVERREACH.

The virus of making citizens take a stand on nationalism or patriotism every day seems to have now crept into the Supreme Court, but it is far from clear under what law. Nor does it seem logical that the court should arrogate to itself the right or privilege of enacting legislation in this regard or any other. Law making must remain the domain of the legislature. A two-judge Bench moved by the perceptions of a septuagenarian in a decades-old cases, decided on Wednesday that the National Anthem shall be sung at the start of every film in every cinema in the country, and that those who paid for a ticket to watch the movie must further be called upon to display a sense of 'committed patriotism' by standing up when the Anthem plays. The doors of the theatre must be kept shut to prevent them from seeking the exit. Thus, those at a film show become a captive audience. But what of those who do not visit the cinema? How does the Supreme Court propose to extract the last ounce of patriotism out of them? Will the ruling be extended to the enactment of plays, the space of the circus, to football and cricket matches, or to home theatres? The court should coolly take on board the fact that its decision will end up being implemented by goon squads, as in the case of beef vigilantism.

The Supreme Court is among the few national institutions that still retain their credibility; and it has retained its dignity, even when the arena of justice as a whole struggles to give citizens their due. Why must then it play with zany ideas fit only for the rough and tumble of the political jungle or the drill yards of parties that are ultra-nationalistic or quasi-fascist in their flavour or orientation? In the aftermath of the crushing defeat in 1962, when 'Aye mere watan ke logon' became for millions the one way to extract solace, cinemas used to play the National Anthem when films ended. It was a completely silly idea even then, and had to be given up with the passage of time. But there was a tortured justification then. Today there is none. Those well read in the law have said of the order that it is a case of 'judicial legislation', and of 'overreach' by the Supreme Court. The political class is likely to keep quiet even if it disagrees with the court, for in today's climate no party would like to be branded'anti-national'. We urge the Supreme Court itself to find a way to self-correct. It must show that it has faith in the sturdy un-imposed patriotism of the masses. 

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ELEVEN-YEAR-OLD SUES PAKISTAN PRESIDENT FOR SPEECH PLAGIARISM.

Eleven-year-old Mohammad Sabeel Haider, who is sixth-grade student at Islamabad Model College for Boys, has sued officials of Pakistan's President's House over alleged plagiarism of his speech without his consent. Sabeel Haider said that he was chosen to deliver a speech at the President's House in Islamabad on 22nd December, 2016. The ceremony was recorded and was supposed to be aired on Pakistan Television on 25th December, 2016, marking the 141st birth anniversary of Mohammad Ali Jinnah, the founder of Pakistan.

However, when Sabeel arrived at the President's House, he was informed he will no longer be delivering the speech. He said in his petition that a tenth-grader delivered the speech he had written and prepared, alleging that his intellectual property was stolen. According to Sabeel's lawyer, as per Section. 3 of Intellectual Property and Copyrights Ordinance, 1967, a literary piece that the person has produced themselves cannot be used by a third party without their consent.

Calling it 'stealing', the counsel termed the act of the respondents a violation of intellectual property, intellect, and copyrights and sought that they be restrained from airing the speech on electronic or social media. The counsel said Haider's speech was forwarded for approval from the presidency, adding that the respondents had approved it.

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ALL YOU NEED TO KNOW ABOUT ANIMAL TESTING.

Remember, these dogs are not 'abused' or 'rescued', they are 'retired' from their services to human kind. There are authorities and laws in place to ensure that animals are not abused both during testing and also when they are ready to be released. A lot of NGOs have played a crucial role in tying up with labs to help rehabilitate them via shelters. Here are the guidelines that ensure their safety:

• Chapter IV of the Prevention of Cruelty to Animals Act, enacted by India in 1960, contains information about experimentation on animals.
• The Animal Welfare Board of India was also set up as a product of this Section of the Act and the government also initiated the committee for the Purpose and Control and Supervision of Experiments on Animals (CPCSEA).
• The CPCSEA plays a very important role in regulating the use of animals before, during and after being exposed to experiments. The CPCSEA, as mandated by law Rule. 9(c) of the Breeding of and Experiments on Animals (Control and Supervision) Rules 1998 - which states that "animals intended for the performance of experiments are properly looked after both before and after experiments" - finds it necessary to frame guidelines which limit the use of animals in testing/research and their care after use in experiments.
• CPCSEA guidelines are based on the premise that animals in labs undergo psychological, physiological and physical trauma, not just from the interventions, but also from solitary confinement, lack of natural conditions et al.
• CPCSEA defines a time limit for which dogs can be tested and/or housed in labs.

ANIMAL TESTING IN COSMETIC INDUSTRY AND MEDICAL STUDIES: A TIMELINE.

• In 2013, India became the first country in South Asia to ban the testing of cosmetics and its ingredients on animals. Following appeals from various quarters, the decision was taken by the Bureau of Indian Standards (BIS) Cosmetics Sectional Committee, chaired by the Drugs Controller General of India, in line with the European Union's stand. Violation of the Drugs and Cosmetics Act by any person or corporate manager or owner can attract a prison term of 3-10 years and/or a fine of Rs. 500/- to Rs. 10,000/-.
• In 2014, the Indian Ministry of Health and Family Welfare announced a ban on the import of animal-tested cosmetics - a decision hailed by many, as this saves millions of animals from being blinded, poisoned and killed in cruel tests.
• In 2016, the Ministry of Health and Family Welfare passed an amendment to Schedule Y of the Drugs and Cosmetics Rules, 1945, which spares animals testing for new drug registrations, in cases when complete data from earlier toxicity.   

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JUDICIAL PRONOUNCEMENT SAFEGUARDS RULE OF LAW...

The Apex Court has once again proved itself to be the only hope of the people of our country. In a landmark judgment delivered by Honourable Justices A.K. Patnaik and S.J. Mukhopadhyaya on 10th July, 2013 in Lily Thomas v. Union of India and Others, the Supreme Court has upheld that the Rule of Law is Supreme. In the instant case, the Supreme Court has declared sub-section (4) of Section. 8 of the Representation of the People Act, 1951 as ultra vires the Constitution. An analysis of the relevant Constitutional and Statutory Provisions would enable one to appreciate and applaud the judgment of the Court in its right perspective. The Constitution under Article. 102(1) and 191(1) provides for the disqualification of membership of either House of the Parliament and Legislative Assembly or Legislative Council of a State respectively. In exercise of this power conferred under Article. 102(1)(e) and under Article. 191(1)(e) of the Constitution, Parliament provided in Chapter-III of the Representation of the People Act, 1951 the disqualifications for membership of Parliament and State Legislatures. Further Sub-sections (1), (2) and (3) of Section. 8 of the Representation of People Act disqualifies a person convicted of an offence enumerated in any of these sub-sections of Section. 8 from the date of conviction.

As it is nothing is fool proof so also the law of the country. No law is defect-free, so also the Representation of People Act. This is evident in Section. 8(4) of RP Act which provides protection to the tainted among the elected representatives of the people. The said provision which was in challenge in this case provides that notwithstanding anything in sub-sections. (1), (2) or (3) in Section. 8 of the Act, a disqualification under either sub-section shall not, in any case of a person who on the date of the conviction is a Member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or an application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed off by the Court. After examining the Constitutionality of the said Section in detail, the Court declared that the sub-section (4) of Section. 8 as ultra vires the Constitution.

There is a great victory for the people of India who desire a corruption free, crime free political leadership. But we could see the political leadership is very much disturbed after this judgment. Like a caged tiger, they have started pacing up and down in panic to find out ways and means to stop this judgment being implemented. Opinions are gaining momentum in the political circles for a Constitutional Amendment to thwart the effect of this judgment. If they do it, the people of our country will not forget them. According to Jeremy Bentham, the greatest happiness of the greatest number is the foundation of morals and legislation. Let our political leaders not take away the greatest happiness that this judgment gives to the people of our great nation.

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MINDSET CHANGE MUST TO HALT HATE CRIMES.

Chief Justice of India J S Khehar said on 08th March, 2017 (Wednesday), that making strict laws was not sufficient to prevent crimes against women. He emphasized that the mindset of society had to change to ensure women enjoy equal status as men.

"A man goes outside his house as per his will, but wife has to take permission for the same. A man spends money as he chooses but wife spends as per his nod. A man is considered to be the master of the house but not wife, because she cooks, washes clothes, keeps the house clean and makes all efforts to make life comfortable. This is the mindset which must change. Kids also see the behaviour of their parents and follow the same mindset where a girl child is treated as liability and a boy is considered as a future asset", he said.

Speaking at a seminar organised by Supreme Court's Gender Sensitisation and Internal Complaints Committee, Khehar said there was Psychological as well as Physiological issues behind rape and eve-teasing. He said crimes against women were more prevalent in lower strata of society and it was not only punishment which could set things right. He said that needs of the poor and deprived must be taken care of by the society. 

Justice Deepak Misra said that putting restriction on women's freedom was a medieval practice that must be done away. He said a progressive society should not tolerate gender discrimination. 

Justice R Bhanumathi, the Gender Sensitisation and Internal Complaints Committee (GSICC) chief and the lone woman Supreme Court Judge, said that the Court has always been upfront in protecting the rights of women and in implementing constitutional mandate against gender discrimination.

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SUPREME COURT: CANNOT DIVORCE OVER ONE CRUELTY EPISODE.

The Honourable Supreme Court held on 08th March, 2017 (Wednesday) that isolated incidents of cruelty against spouse cannot be a ground to seek divorce, and marriage could be dissolved only if such incidents were of a recurring nature. A Bench of Justices R K Agrawal and A M Sapre also ruled that a husband or wife could not seek divorce on the basis of incidents which took place years before the petition was filed. It set aside the order of a family court and the Delhi High Court which had granted divorce to a man on the basis of alleged incidents of cruelty against him, which took place a decade before he approached the Court for dissolution of marriage. Six years after the marriage was dissolved by the family court, the Apex Court allowed the plea of his wife for restitution of her conjugal rights.

"A petition seeking divorce on some isolated incidents alleged to have occurred 8-10 years prior to filing of the petition cannot furnish a subsisting cause of action to seek divorce after 10 years or so of occurrence of such incidents. The incidents alleged should be of recurring nature or continuing one and they should be in near proximity with the filing of the petition", the Bench said. The Court noted that the couple had starved living together after the alleged incidents, which means that her conduct was condoned by the husband and he could not raise that ground. The Court refused to take into account a recent incident when the wife had chided him in his office in the presence of his colleagues.

"In the first place, no decree for divorce on one isolated incident can be passed. Secondly, there could be myriad reasons for causing such isolated incident. Merely because both exchanged some verbal conversation in the presence of others would not be enough to constitute an act of cruelty unless it is further supported by some incidents of a like nature", the Court said.

"In our considered opinion, both the courts below failed to take note of this material aspect of the case and thus committed jurisdictional error in passing a decree for dissolution of marriage", the Apex Court said and set aside the divorce order. It said the couple should live together to take care of their two daughters and bring peace, harmony and happiness in their life.

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FIVE SECTIONS OF THE INDIAN PENAL CODE THAT WOMEN CAN USE TO FIGHT CRIMES THAT INCLUDE STALKING, DEFAMATION AND ONLINE ABUSE.

1. Section. 509: 'Word, Gesture or Act intended to insult the modesty of a woman' pertains directly to sexual harassment. Though initially designed to address the widespread issue of street sexual harassment (or 'eve-teasing' in its watered-down version), Section. 509 can be applied to the harassment of women in online spaces. In 2001, a young man in the 11th Grade was convicted under Section. 509 for making vulgar remarks about female classmates on a website called Amazing.com. It was not only a successful use of Section. 509 to curb online harassment, but the first time a minor had been booked under the law.
2. Under the Criminal Law (Amendment) Act, 2013, the addition of Section. 354-A to the Indian Penal Code provides a more comprehensive definition of sexual harassment. It makes physical contact and advances involving unwelcome and explicit sexual overtures; demand or request for sexual favours; showing pornography against the will of a woman; or making sexually coloured remarks, a criminal offence.
3. Sexual. 354-D of the new Act pertains to 'stalking' - making it a crime - and also includes crimes that involve monitoring the electronic communication of a woman.
4. Section. 507 of the Indian Penal Code - criminal intimidation by anonymous communication - is another provision that may be used by women facing harassment and threats online.
5. Section. 499 pertains to defamation. If a woman is being defamed or publicly shamed online she can take legal recourse.

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LIABILITY OF REGISTERED CONTRACTORS HAVING INDEPENDENT CODE NUMBER CAN'T BE FASTENED UPON PRINCIPLE EMPLOYER. [EPF Apellate Tribunal].

M/s. Human Development Foundation v. Assistant Provident Fund Commissioner, ATA No. 319(10) 013, decided on 01st April, 2016. 

An appeal was filed by the appellant before the Employees' Provident Fund Appellate Tribunal, challenging the order dated 14th August, 2012, passed by the EPF Authority, under Section 7-A of the Act. The EPF Appellate Tribunal observed that the EPF Authority passed the impugned order without following the due procedure of law. Despite having information that employees concerned are contractors' employees, the EPF Authority neither joined those contractors nor summoned the concerned employees, without considering that contractors registered with department are 'independent employers' and their employees cannot be treated to be employees of the principal employer. Liability of unregistered contractors would fall on the principal employer in view of Clause. 30 of the EPF Scheme, 1952 but not in the case of registered contractors. Hence, impugned order is set aside. Appeal is allowed. Matter is remanded back for fresh consideration and for passing a speaking order by identifying the beneficiaries.

---------------------------------------------------------------------------------AN ORDER PASSED ONLY ON THE BASIS OF REPORT OF ENFORCEMENT OFFICER WITHOUT CONDUCTING PROPER ENQUIRY IS NOT SUSTAINABLE. [EPF Appellate Tribunal].
M/s. Cello Sales and Marketing v. Regional Provident Fund Commissioner, ATA No. 184(5) 2015, decided on 31st March, 2016.

An appeal was filed by the appellant before the employees' Provident Fund Appellate Tribunal, challenging the order dated 17th May, 2013 and 17th October, 2014, passed by the EPF Authority, under Sections. 7-A and 7-B of the Act. The EPF Appellate Tribunal observed that the appellant was making due compliance of the Act. Impugned order dated 17th May, 2013 was passed on the basis of report of Enforcement Officer that appellant was taking shelter of various allowances to hide Provident Fund liability. EPF Authority passed its order without finding the nature of allowances, without conducting proper enquiry and without enforcing attendance of any of the employees. Object of the Act is not to gather money to meet pre-conceived targets but to collect fund for welfare of the workmen to be identified, once they superannuate. EPF Authority has not carried out its legal obligation since it has not given proper opportunity of being heard, not provided a fair and transparent procedure and applied its mind for disposing the matter by a reasoned or speaking order. Hence, appeal is allowed. Impugned orders are set aside. EPF Authority is directed to refund the amount, if any, deposited by the appellant, with interest.

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DAMAGES IMPOSED UNDER SECTION. 14-B ARE WAIVEABLE BUT NOT THE INTEREST UNDER SECTION. 7-Q OF THE EPF ACT. [EPF Appellate Tribunal].

Shree Hanuman Prasad Poddar Andh Vidyalay v. Assistant Provident Fund Commissioner, ATA No. 761 (14) 2015, decided on 31st March, 2016.

An appeal was filed by the appellant before the Employees' Provident Fund Appellate Tribunal, challenging the order dated 09th June, 2015, passed by the EPF Authority, under Sections 14-B and 7-Q of the Act. The EPF Appellate Tribunal observed that the delay in depositing the EPF dues, as determined by the EPF Authority, could not be paid by the EPF Authority, could not be paid by the appellant since the matter was pending adjudication in respect of applicability of the Act. During the pendency of litigation, the EPF Authority did not make any effort to get vacated the stay order. Appellant was having a stay order passed by the Court in his favour due to which he did not deposit the EPF dues. The appellant is a registered society running a charitable institution for the welfare of the blind, dependent upon donations from the government and certain people of the society. Hence, damages imposed under Section. 14-B of the Act are waived but the interest imposed under Section. 7-Q of the Act could not be waived and the same would be deposited by the appellant within one month. Appeal is disposed of by modifying the order of the Appellate Tribunal to that extent.

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FATHER'S NAME NOT NEEDED FOR PASSPORT [DELHI HIGH COURT].

Shalu Nigam and Another v. The Regional Passport Officer and Another. W.P. (C) 155/2016 decided on 17th May, 2016.

Facts of the case: The Petitioner No. 1 has filed a writ petition before the High Court seeking re-issuance of her daughter, Petitioner No. 2's Passport without insisting upon her father's name being mentioned in the application. 

Contentions of the Petitioner No. 1: The Petitioner No. 1, who appeared in person stated that "she is divorced from her husband and has raised Petitioner No. 2 as a single parent since her birth on 24th August, 1997. She contended that the biological father had completely abdicated his responsibilities towards Petitioner No. 2 since her birth". 

The Petitioner No. 1 stated that the "respondents insistence upon Petitioner No. 2 mentioning her father's name in the application violated the rights of Petitioner No. 2 to determine her name and identity. She pointed out that the entire record of Petitioner No. 2 - daughter which included her educational certificates and Aadhar Card, etc. did not bear the name of her father. She submitted that if the directions sought for in the present petition are not issued, the Petitioner No. 2 - daughter would be compelled to alter her identity that she had been using since her birth as daughter of Petitioner No. 1 rather than of her biological father. According to her, through the malafide, arbitrary and discriminatory decision of respondents, Petitioner No. 2 was being compelled to mention the name of her biological father who had refused to accept her because she is a female child. She emphasised that respondents had originally in the year 2005 and subsequently in 2011 issued a Passport without insisting upon Petitioner No. 2's father.

Contentions of Respondent No. 1: Mr. Rajeev Kumar, learned counsel for Respondent No. 1 stated that the "computerised Passport application form has a column with regard to father's name under the heading 'Family Details'. He stated that the said form must be filled by the Petitioner No. 2". In support of his contention, he relied upon Chapter. 8, Clause. IV (4.5) of the Passport Manual which reads as under:-

"IV. Parent name not to be deleted from Passport consequent to Divorce.

4.5. Request for deletion of parent name from Passport due to parents' divorce should not be accepted. By virtue of the divorce decree, only the relation as wife and husband severs. The divorce decree does not result in severance of the relation between the child and the parent, unless the parent has legally disowned the child".

Mr. Rajeev Kumar, learned counsel for Respondent No. 1 submitted that "it is a well recognised principle of law that the relationship between parents and children do not get dissolved, except in cases of valid adoption. Consequently, according to him, the name of the father has to be mentioned by Petitioner No. 2, before the Petitioner No. 2's application for issuance of Passport can be considered". In support of his submission, he relied upon a judgment of the Madras High Court in Mrs. B.S. Deepa v. The Regional Passport Officer, W.P. (C) No. 29105/2014. 

Contentions of Amicus Curiae: Keeping in view the important question of law that was involved in the present proceedings, the Court vide order dated 22nd January, 2016 had appointed Mr. Amit Bansal, Advocate, as the learned Amicus Curiae. Mr. Amit Bansal, learned Amicus Curiae, pointed out that in Kavneet Kaur v. Regional Passport Officer, W.P. (C) 3582/2014 decided on 31st July, 2014 "a Coordinate Bench of this Court had set aside the order of External Affairs, by which the petitioner's request for including the name of her step father as her father in the Passport had been denied. He stated that the Court allowed the said Writ Petition principally on the ground that the said request was not in violation of any provision of the Passport Manual and further on account of the fact that all relevant documents mentioned the name of her step father and any variance in the Passport would create confusion".

Mr. Amit Bansal submitted that in Ms. Teesta Chattoraj v. Union of India, LPA 357/2012 decided on 11th May, 2012, a Division Bench of this Court had held that "no rights of a biological father can be recognised by any Court of Law who had failed to discharge any responsibility towards his child". 

Learned Amicus Curiae pointed out that in R. Gayathri v. Regional Passport Officer, W.P. (C) 14182/2013 the High Court of Madras on 16th May, 2013 "allowed the petitioner to mention the name of her step father in her Passport instead of the name of her biological father on the grounds of fair play, equity and prudence as the petitioner had been brought up by her step father only and her school records too reflected the name of her step father as her father".

Mr. Bansal laid emphasis on the judgment of the Supreme Court in Githa Hariharan v. RBI, (1999) 2 SCC 228, wherein it had been held that the "mother can act as natural guardian of child, inter alia, in the event the father is indifferent towards the child or if the child is put under custody of mother by mutual understanding between the parents". In the said case, the Supreme Court further directed the organisations like RBI to formulate a methodology to meet such situations where the child is being brought up by the mother only.

Opinion of the Court: This Court was of the opinion that "the respondents can insist upon the name of the biological father in the Passport only if it is a requirement in law, like Standing Instructions, Manuals, etc. In the absence of any provision making it mandatory to mention the name of one's biological father in the Passport, the respondents cannot insist upon the same".

In the present case, "there is no legal requirement for insisting upon the father's name. Respondents' reliance on Clause 4.5 of Chapter 8 of Passport Manual, 2010 is misplaced as the said Chapter deals with "change in entries in Passport". It does not pertain to entries to be made in the first instance. Consequently, Clause 4.5 of Chapter 8 is not applicable to the present case.

In fact, a Coordinate Bench of this Court in Ishmaan v. Regional Passport Officer, W.P. (C) 5100/2010 decided on 21st February, 2011 directed "issuance of a Passport to an applicant without mentioning her father's name on the ground that the instructions issued by the respondent itself permitted mentioning of only mother's name in the Passport". The relevant portion of the said order is reproduced here-in-below: 

"4. The Respondents have themselves enclosed another set of instructions in a reference letter (Annexure R-2) issued on 21st April, 1999. Clause 3.2 (a) thereof reads as under-

3.2 Child born out of wedlock or child having single parent (Reference letter No. V.1/402/2/1/97 dated 21st April, 1999).

a) Cases where: 

(i) the mother who is an Indian citizen, claims that the biological father had no contact with the mother or the child after the child's birth; or where

(ii) the child's father is either unknown (for example a child born after a rape, etc.) or

(iii) has terminated the relationship with the mother after conception.

In these cases, the PIA should obtain an affidavit from the mother to that effect sworn before a magistrate (Appendix 23). In these cases, the name of the father should be left blank and should not be entered in the Passport without his written consent. As admission by a woman of the birth of a child out of wedlock invites social stigma, it may be presumed that rarely would she utter a lie in this regard. However, to safeguard against cases of abduction/kidnapping, the PIA should insist on the affidavit of the mother being supported by a birth certificate from a hospital or the Registrar of Births and Deaths or a Municipality". 

5. It is plain that as far as the present case is concerned, with the decree of mutual divorce having been passed by the competent Civil Court in 2007 itself, the case of the Petitioner would be covered under Clause 3.2 (a) of the above instructions dated 21st April, 1999.

6. The Petitioner's mother should now produce before the Regional Passport Officer ('RPO') an affidavit sworn by her before the Magistrate in terms of Clause 3.2 (a) within a period of two weeks. The said affidavit will also incorporate the necessary assertion that the Petitioner's mother will inform the RPO in the event she proposes to remarry. If such an affidavit is furnished, then the RPO will ensure that the name of the father in the Passport of the Petitioner is left blank. The necessary correction in the Passport be made withing a further period of two weeks after the said affidavit is furnished". 

The present respondents on 20th February, 2015 in W.P. (C) 845/2015, Priyanshi Chandra v. Regional Passport Officer had, on instructions, stated before a Coordinate Bench of this Court that "the request of the applicant, to issue her a fresh Passport, without mentioning her father's name would be granted if she produces an affidavit in terms of Clause 3.2 (a) of the instructions contained in letter dated 21st April, 1999".

In the opinion of this Court, "the judgment of Madras High Court in Mrs. B.S. Deepa (supra) offers no assistance to the respondents. Firstly, the issue involved in the aforesaid Madras High Court judgment was the validity of the adoption deed on the basis of which the petitioner had sought a direction to respondents to mention the name of her adoptive father as father's name in the Passport. In the present case, the Petitioner No. 2 does not want to mention her father's name at all in her Passport. Secondly, the Madras High Court keeping in view the evolving societal norms relating to divorce, remarriage, single parents, etc. directed the respondents to mention the name of the step father of the applicant on her Passport instead of her biological father's name. Thirdly, Madras High Court after detailed discussion on the requirement and insistence upon by the respondents on mentioning father's name in a person's Passport had directed the Ministry of External Affairs to incorporate suitable provision in the Passport Manual making it optional for the parties to indicate the names of one or more biological parent in the said form. Consequently, the respondents were in essence directed by the Madras High Court to reconsider their requirement of making it mandatory for the applicants to mention the name of their biological father in their application form for issuance of Passports".

The Court also took judicial notice of the fact that "families of single parents are on the increase due to various reasons like unwed mothers, sex workers, surrogate mothers, rape survivors, children abandoned by father and also children from through IVF technology".

Consequently, the Court was of the view that "mother's name is sufficient in certain cases like the present one to apply for Passport, especially as a single woman can be a natural guardian and also a parent". The Court further found merit in the submission of the petitioners that "if the respondents direction to Petitioner No. 2 to mention her father's name is not quashed, it would compel the Petitioner No. 2 to alter not only her name, but also her identity that she had been using since her birth, i.e., daughter of Petitioner No. 1 rather than her biological father who had abandoned her at the time of her birth".

"As regards the contention of the respondents that the computer does not accept the application form without the name of the father being filled up, this Court was informed by the learned Amicus Curiae that the online Passport application as updated on 29th January, 2016 provides that in the column of Family Details, only one detail out of the details of Father/Mother/Legal Guardian, is mandatory and required to be filled. In any case, technology is intended to ease and facilitate transactions and cannot be the basis for creating and defeating anybody's legal rights. If the only impediment, in way of granting the relief sought by the petitioners, is the software, the same ought to be suitably modified to accept the application of the Petitioner No. 2, if she is otherwise entitled for re-issuance of the Passport.

The fact that the respondents had on previous two occasions, in the year 2005 and 2011 issued Passport to Petitioner No. 2, without insisting on father's name, makes it evident that the said requirement is not a legal necessity, but only a procedural formality, which cannot be the basis of rejecting the Petitioner No. 2's case. Consequently, it appears that legally and factually there is no impediment in issuing the Passport to the Petitioner No. 2, without mentioning her father's name".

Decision of the Court: "Accordingly, the respondents are directed to modify their software and accept Petitioner No. 2's application and issue her a Passport without insisting upon mentioning her father's name. With the aforesaid direction, present petition and application stand disposed of. This Court places on record its appreciation for the services rendered by learned Amicus Curiae Mr. Amit Bansal". 

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WIDOW HAS RIGHT ON PROPERTY: COURT.

[Based on news item published in Telangana Times dated 06th March, 2017 (Monday), p. 10].

A widow has a right to enjoy the property purchased by her husband in her name in the manner she wants and her daughter and son-in-law cannot lay claim over it, a Delhi Court has held. The observation was made while deciding the case in favour of a 65-year-old woman who had moved the Court against her daughter and son-in-law's refusal to vacate a portion of the house and challenging the right of the elderly over the property in North-West Delhi's Shastri Nagar.

Lajwanti Devi wanted the portion of the property given to her daughter and son-in-law in 1985 for their personal use but they refused to vacate. The Court, which perused the facts of the case, expressed anguish that the widow who had allowed the couple to use the premises due to the close relationship, was compelled to rush to the Court after they declined to vacate it.

Additional District Judge Kamini Lau, while holding the woman as the owner of the house, noted that the property was purchased by the woman's husband in 1966 in his wife's name to "provide her a secure life" after his death and her daughter and son-in-law were only having "permissive possession" of the house and they could not be allowed to defeat her right.

Lajwanti Devi, a widow, has a right to enjoy the property purchased by her husband in her name, in the manner she wants", the Court said, directing the couple to vacate the house.

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MINOR'S WELFARE PRIORITY IN GRANTING CUSTODY: SUPREME COURT OF INDIA.

[Based on a news item written by J. Venkatesan, published in Deccan Chronicle dated 18th February, 2017 (Saturday)].

The Supreme Court on 17th February, 2017 (Friday) held that the welfare of minor child is the paramount consideration while granting custody of the child either to father or mother, separated after divorce. A Bench of Justices A.K. Sikri and R.K. Agarwal gave this ruling while entrusting custody of a 15-year-old girl to the father, ignoring the claims of the mother who chose to live in the United Kingdom.

The Bench said in the appointment or declaration of any person as guardian of a Hindu minor  shall be the paramount consideration. The best interest of the child has been placed at the vanguard of family/custody disputes according the optimal growth and development of the child primacy over other considerations. 

Writing the judgment Justice Sikri said the effect of separation of spouses, on children, psychologically, emotionally and even to some extent physically, spans from negligible to serious, which could be insignificant to noticeably critical. Rightful place of the child has been recognised in many international forums, which are adopted in this country as well.

Child-centric human rights jurisprudence that has been evolved over a period of time is found on the principle that public good demands proper growth of the child, who are the future of the nation.

Allowing appeal filed by the father Jitendra Arora, the Bench pointed out that in this case the child Vaishali is a mature girl of fifteen years of age. At this age, she can fully understand what is in her best interest. She is competent to take a decision for herself. There has been interaction with her by different Benches of this Court from time to time.

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CHEQUES AND BALANCES.

Having elections to decide who is to govern us meets only the most basic definition of a democracy. But at a deeper level, democracies require checks and balances in governance. Otherwise, no matter how free and fair the elections, they would be autocracies with periodic changes of leadership. The proposal in 2017's budget to amend Section. 132 of the Income Tax Act is an example. The amendment would do away with the requirement for Income Tax officials to demonstrate they had "reason to believe" that violations existed, or that the assessee would not comply, before conducting a search "raid". The danger in this is obvious. Without having to show they had good reasons for raids, there is nothing to prevent iT officials from conducting them arbitrarily. Harassment and rent seeking - the term economists use for corruption - are sure to follow.

Nevertheless, it is worth taking stock of the opposite arguments as well. Checks and balances are meant to prevent the autocratic, mindless or subjective exercise of authority, but not to block its legitimate. justifiable application. So where does the Indian government's crackdown on IT evaders stand? The statistics clearly show that the pace has been considerably stepped up in the past two years. For instance, the number of raids in the first half of 2016, at 148, was nearly triple of the 55 in the first half of 2015.

But these are paltry figures. Only 37 million of India's 1.3 billion people filed tax returns in 2015-16. They included barely 41 percent of the 42 million people employed in the formal sector and only a third of the 56 million engaged in the informal sector. This is exacerbated by the large number of tax cases tied up in disputes. As of last year (2016), the tally of disputed cases was nearly 67,000 in the Supreme Court and various High Courts, 1.53 lakh in the Income Tax Appellate Tribunals, and 3.7 lakh with Income Tax Commissioners (Appeals).

On top of that, at least for this year (2017), there will undoubtedly be a spike on account of demonetisation. The unprecedented number and amount of deposits since 08th November have led to speculation about the laundering of black money. In fact, this represents a unique opportunity for tax authorities, with a vast new database to scrutinise for possible tax evasion. If done swiftly, there is immense potential for not only identifying and confiscating black money, but also bringing large numbers of new assessees into the tax net.

However, it was never going to be easy to rapidly scale up such scrutiny or, indeed, conduct raids. It is not simply a matter of allocating more resources for it, but also having to deal with judicial hurdles. As the Finance Bill explains, "certain judicial pronouncements have created ambiguity in respect of the disclosure of 'reason to believe' or 'reason to suspect' recorded by the income tax authority to conduct a search under Section. 132". But therein lies the rub. If judges have imposed constraints on raids because of unconvincing reasons to believe they were justified, then it is almost inevitable they will find fault with altogether doing away with all justification! Though the executive and legislative branches may decide to abjure cumbersome procedural requirements in the interest of efficiency, that must pass the test of natural justice and constitutional guarantees in order to deter the judicial branch from overturning it.

The answer to dealing with judicial hurdles in stepping up tax enforcement does not lie in throwing the baby out with the bath water. The aim of simplifying procedural hurdles for tax officials, though a worthy one, cannot be the sole objective. Rather, it must be balanced with certain features that would prevent raids from being conducted whimsically. Some democracies are able to achieve this balance. In the United States of America, for instance, Supreme Court judgments over decades have chipped away at arbitrariness in issuing warrants, conducting raids, etc. requiring objective criteria to be demonstrated that there existed 'probable cause' as justification.

India needs similarly simple, unambiguous and objective criteria to establish prima facie justification for a search and seizure. In any event, raids must be a last resort, only if there is demonstrable risk of the assessee absconding or destroying evidence. Stipulating objective prerequisites for IT raids in India must not be convoluted. Tip offs from pre-defined credible sources, data algorithms to co-relate expenditure and income for identifying tax fraud, and other similar measures would fit the bill. Even the routine integration of findings by the government's other, non-IT investigative agencies - instead of today's case-to-case consideration - is much needed.

Using the principles of checklist management, IT officials could be given an objective list of items to be ticked off that would serve as a record of due process having been followed prior to a raid. And surely the finance ministry has the expertise to craft such a checklist that would pass judicial muster.

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RETHINKING INDIAN LIBERALISM.

Liberalism is visibly under retreat as a global phenomenon. Donald Trump's surprise victory, based on a shrill attack on such cherished liberal ideas like a human face to immigration, multi-culturalism and pluralism, and his counter espousal of a more insular white-centric political and economic ideology, shocked liberal ideologues. Following Brexit, a swing to the liberal right is simmering in Europe too. Are we seeing a similar trend in India, and if so why? Undoubtedly, a definitive shift in India to the right is being raised to a new crescendo after the BJP came to power in 2014. This may not be a permanent trend, but the new rightist upsurge should prompt liberals to seriously introspect about what has gone wrong. Could it be that, cocooned in the self-righteous certitudes of what should be, liberal opinion has overstated certain assumptions, and understand others, leading to a cumulative backlash against a more inclusive, tolerant and broad-minded society?

In response to this question, three aspects come to mind. Firstly, while it is true that we have evolved to become a ganga-jamuna, multi-cultural and plural tehzeeb - and that is the only way we can survive as a nation - certain liberal assumptions of how this has happened are an intellectual gloss and a distortion of historical facts. Jawaharlal Nehru, in his well-intentioned magnum opus "The Discovery of India", writes that it is 'wrong and misleading to talk of a Muslim invasion of India...Islam did not invade India; it had come to India some centuries earlier'. While it is, indeed, true that Muslim traders from the Arab countries practiced their faith undisturbed in Kerala more than a thousand years ago, it is wrong to believe that the Turkish, Afghani or Mughal invaders who came later did not come as Islamic invaders and proselytisers.

Thousands of temples were destroyed and mosques built in their place by them, often with the debris of the demolished temples. Where temples survived, mosques were built in deliberately close proximity. The destruction was devastating, obliterating or mutilating a huge chunk of ancient India's architectural heritage. The loss was irreparable. It is said that when in 1200 CE Bhaktiar Khilji destroyed Nalanda, the Harvard of Asia, the library continued to burn for months. The gradual and enriching synthesis that occurred between Hinduism and Islam happened in spite of this wanton destruction, and not because it did not happen. The purpose here is not to revive history to ignite acrimony, but merely to state that historical misrepresentation often serves to provoke dormant memories, thereby creating avoidable backlash.

Secondly, liberal India has continued to believe that any reference to the achievements of Hindu India is almost tantamount to communalising the historical narrative. Frankly, this is political correctness taken to a ridiculous extent. Ancient India saw a remarkable level of refinement and excellence in philosophy, science, literature, culture and the arts. To equate an acknowledgement of this contribution to non-secular obscurantism is a travesty of history. 

Somehow, there is a retinence in 'progressive' historical writing to give space to the Hindu imagination. For instance, the great kingdom of Vijayanagara with beautiful Hampi as its capital, flourished for two-and-half centuries from 1336 to 1565 CE as the last Hindu bastion against Muslim invasion, but has hardly received its due in our historical memory. At this apogee Vijayanagara comprised a vast territory from the River Krishna to the Indian Ocean. But it merits but one paragraph in The Discovery of India, and no one has thought it worthy to name at least one road in New Delhi after the Vijayanagara King Sri Krishnadevaraya, perhaps one of the greatest rulers in Indian history.

Thirdly, there is a need to revisit the 's' word: secularism. Religious faith is a dynamic conditioning factor for the vast majority of Indians. To understand this, and to cull from this the need to respect all religions, is one thing. To repeat the mantra of seuclarism without even a knowledge of such basics as the meaning of important religious festivals, is quiet another. 

Gandhiji was a convincing spokesman for communal harmony because he was thoroughly familiar with his own religion, the essential tenets of other religions, and the substance of his own culture. However, for much of the anglicised elite, secularism has often become a stance to be invoked, almost as a reflex, every time there is the slightest whiff of religion. For some of its members, faith is tantamount to medievalism, and all religions practice the equivalent of ritual and superstition. Such an attitude of disdainful dismissal would still be valid if it was not rooted in a nondescript cosmopolitanism, mistaken for too long as modernity. The crisis of liberalism is that the entirely valid concept of secularism is tending to maroon itself in a 'progressive' island of its own, cut off from the religio-cultural impulses that continue to animate the vast majority of Indians.

Ultimately, the biggest challenge before the liberal project in India is how to reiterateits valid beliefs while being rooted in the cultural ethos of the country. It is unlikely that those who see modernity only in Western categories, and know more about Shakespeare than Kalidasa, can become authentic spokesman for this cause.

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