The Government has recently filed an appeal against the Apex Court’s judgment on SC/ST act. Now, it’s the time for citizens to leave the path of violence and carry forward their complaints and let the judicial take necessary actions.

The nation observed Ambedkar Jayanti on April 14 around the time when there were disturbances in some parts of the country consequent to a judgement of the Supreme Court regarding the enforcement of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Much of the protests have been triggered by opponents of the Bharatiya Janata Party (BJP) who have tried to lay the blame at this party’s door in a bid to generate hostility against it among the Dalits, even as the Narendra Modi Government has filed a review petition in the apex court.

The political twist given to the court’s judgement and the violence on the streets is truly unfortunate because it goes against the firm advice given by BR Ambedkar when the Constituent Assembly adopted the Constitution. Once the Constitution is adopted, he said, citizens must abandon the unconstitutional path to put forth their grievances.   

In the judgement that has triggered the agitation, the court said that it had noted the working of the Act over the last three decades and it had been “judicially acknowledged” that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.

Innocent citizens are termed as accused, which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance.

The apex court said that the under privileged need to be protected against any atrocities to give effect to the Constitutional ideals and the Atrocities Act has been enacted with this objective. “At the same time, the said Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens, as has been found on several occasions in decisions referred to above. Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution. This court must enforce such a guarantee. Law should not result in caste hatred. The Preamble to the Constitution, which is the guiding star for interpretation, incorporates the values of liberty, equality and fraternity”. Also, the Act was “not intended to deter public servants from performing their bona fide duties”.

Following the court’s judgement on March 20, agitators took to the streets and a Bharat Bandh was organised against what they called the “dilution” of the Act. They said, the judgement would completely nullify the main purpose of the Act and actually protect the perpetrators of atrocities against the Dalits. While some questioned the theory that the Act was being misused, others said the premise on which the court had drawn its conclusions was incorrect. There were also the argument that this would completely jeopardise the efforts of the Indian state to protect the Scheduled Castes and Scheduled Tribes  who have faced and continue to face oppression across the country.

The Narendra Modi Government promptly filed for a review of the judgement. It took the stand that offences under this Act were heinous crimes which were committed to humiliate and subjugate SCs and STs. It said that the Government was committed to ensuring the well-being of the Dalits and tribals and that it did not agree with the reasoning of the Supreme Court. Law Minister Ravi Shankar Prasad said it was important to note that the Union Government was not a party to the proceedings at all and, therefore, a very comprehensive review petition had been filed. The Government noted that less than 25 per cent of the cases filed under the Act resulted in conviction of accused persons. Therefore, the court’s judgement would only further impede justice for the victims of atrocities.

The Government felt that the accusations hurled at it by its opponents were baseless because it enjoyed the confidence of the Dalits. Electoral studies have shown that the BJP’s share of the Dalit vote jumped from 12 per cent in 2009 to 24 per cent in 2014. Also, the party bagged 66 of the 131 Lok Sabha seats reserved for Dalits and Tribals in the country. While doing so, it had completely wrecked the electoral base of the pro-Dalit Bahujan Samaj Party which did not win a single reserved seat. The Congress also saw erosion of its Dalit base.

Speaking in the Constituent Assembly on November 25, 1949, Ambedkar cautioned the citizens and told them what they had to do if they wished to maintain democracy “not merely in form, but also in fact”. He said, “The first thing in my judgement we must do is to hold fast to Constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for Constitutional methods of achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where Constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the grammar of anarchy, and the sooner they are abandoned, the better for us”.

Now that the Union Government has filed a strong review petition on their behalf, the Dalits and the tribal communities, which are anguished over the court order, must allow the judicial process to take its course. Any group or community that feels aggrieved about something must remember Ambedkar’s sage counsel. Because, as he has warned, violent methods of protest could imperil democracy.

(The writer is Chairman, Prasar Bharati)

Writer: A Surya Prakash

Courtesy: The Pioneer

In a landmark judgment, the Delhi High Court, has ruled that the Central Government can direct Medical Council of India (MCI) in respect of, inter alia, matters pertaining to enhancement of MBBS seats in medical colleges.

Under Section 10A of the Medical Council of India Act 1956, the powers/functions of MCI and the Central Government have been defined but, in some cases, the MCI and the Central Government have been taking different/opposing stands and because of which, there had been spurt of litigation in various courts in India.

In the case of Chettinad Hospital and Research Institute vs. Union of India & Ors., in Delhi High Court, Justice Rekha Palli has ruled, that since, the Central Government is the final authority for granting pemissions, etc. under the MCI Act 1956, therefore, it has got the power to give directions to the MCI. Not only this, the court has held the conduct of the MCI as an example of “red tapism”, “callous”, etc.

Chettinad Hospital and Research Institute had applied for increase of MBBS seats from 150 to 250 seats. MCI, without affording opportunity required under the MCI Act recommended rejection of the scheme of the institute, however, after examining the application the Central Government disagreed with MCI and directed MCI to process the application. In spite of the Central Government’s directive, MCI again recommended the rejection of the application; therefore, the institute approached the Delhi High Court.

Mr. Arun Bhardwaj, Senior Advocate, appearing for the institute raised several important legal arguments, including the powers of the Central Government vis a vis the powers of MCI under provisions of the MCI Act 1956. It was contended that there is requirement of medical seats in India and the conduct of MCI is contrary to the law settled by the Supreme Court.

In view of the importance of the matter, the Delhi High Court called upon the Additional Solicitor General to appear. Ms. Maninder Acharya ASG, appeared on behalf of the Central Government and stated that the Central Government has got powers under Section 10A to give directions to the MCI and the conduct of MCI is a glaring example of “red tapism”.

For the MCI, Mr. Vikas Singh, Senior Advocate appeared and opposed the submissions of Mr. Arun Bhardwaj and Ms. Maninder Acharya ASG. While delivering the landmark judgment, the Delhi High Court has settled the law that since the Central Government is the final authority, therefore, under Section 10A of MCI Act, the Central Government can give directions to MCI. This judgment has far reaching consequences and is expected that the delays in respect of setting up of medical colleges, courses, increasing the number of seats, etc. would come to an end.

Writer: Dr Rahul Misra, Associate Editor Opinion Express Group

In today’s world, technology holds a lot of importance and, therefore, a number of people misuse technology without knowing its consequences. Increase in misusing technology leads to reduction in our minds capabilities. It also affects the human interference, reducing it at a rapid scale, from our lives, raising a number of questions that needs to be addressed.

The drive from Gururgram to Delhi, especially in the evenings, can be enormously painful and a grim reminder of how poorly we manage our traffic. I had a similar experience recently when despite our best attempts, we got stuck in the endless snarls and kept crawling for over two hours. What made the experience worse was the pin drop silence inside the car, all this while. Even as the driver negotiated the harsh traffic and relentless honking, the other two young occupants remained engrossed with their smartphones. One watched an Amazon video, while the other enjoyed MP3 music. Technology has pervaded human interface.

My ordeal continued as I reached a dinner party after the gruelling drive and was confronted with a rather unique ‘human-like object’ which had almost all the 30 odd guests, children and elderly alike, in awe of it. They all scrambled for the attention of Alexa, the virtual assistant from Amazon, almost endlessly during the three-hour get together and this naturally meant all of them compromising a great deal with the good old human connect. Welcome to the new age of rapidly diminishing human interface.

We live in exciting times and perturbing too! Suddenly we find human minds getting increasingly subservient to artificial concoctions. Ask a child a time during the day, or which date was last Wednesday and her first instinct would be to reach out to a handset nearby. Ask a youngster about the first President of India, or in which year the Emergency was declared or what had happened on 9/11 and where and her first instinct would be to Google it, even though she may knows it. This tendency to allow technology to intervene and mediate, and in the process reduce our minds natural capacities, is also becoming prevalent among not so young as well. Ask a 35-year-old professional if he had time for a meeting the next day at 1 pm, and his first reaction would be to reach out to his handset to check his calendar.

Look at this screaming headline in the UK’s leading daily The Telegraph and one begins to wonder what have we done to ourselves: The human brain can store 4.7 billion books — 10 times more than originally thought. The article elaborated, “The human brain has a capacity of one petabyte…One petabyte is the same as 20 million four-drawer filing cabinets filled with text, 13.3 years of HD-TV recordings, 4.7 billion books or 670 million web pages.” The pattern of behaviour of modern men and women stands in stark contrast to this fact. The over-dependence on technology and our temptations of allowing gadgets to mediate our existence are beginning to threaten not only the capacities of human brains but also the social and cultural milieu in which we live.

Little wonder, suddenly the debate over data privacy and the way these new age superpowers in Facebook and Google are invading individuals’ private space is turning curious, and compellingly relevant. What could be the possible reasons for these apparent vulnerabilities of human existence? One certain reason could be the terrible technology tilt. It is indeed true that technology has made things far easier than we could imagine. So, my young colleague can watch many episodes of Stranger Things on Netflix without any anxiety of reaching home and make herself cozy in front of the television set. She can communicate seamlessly with family and friends on WhatsApp groups, or share pictures of her Manali trips with them in a few clicks. She can put alarms on her phone, listen to her favourite music or tell Google to remind her of a meeting next Wednesday. But in the process, she may have, and possibly inadvertently, allowed her brains and natural reflexes to take a back seat. Her human interface is getting minimal, and this has implications, not too difficult to comprehend.

Another reason for this growing vulnerability could be called the handheld model of child socialisation — where grandma’s folklores are replaced by jingle bells, antics of siblings by Tom & Jerry cartoons, and sweat on the ground by stress on the screens. The handheld phones have scrupulously displaced cradle model of socialisation and the results are far too glaring to be ignored. Children are hooked on the phones likes honeybees with hives! Human mediation in the lives of modern children are hugely limited and that could potentially be making them far less social than their predecessors. This has definite social implications, including a society far less cohesive than it used to be.

The rapidly diminishing human interface from our lives is staring at us with many questions that we must take up earnestly.

(The writer is a strategic communications professional)

Writer: Navneet Anand

Courtesy: The Pioneer

Recent ruling from the Delhi’s High court forbids Monsanto from stopping supplies. As a result, this will slow down the ability of a number of multinationals to establish a seed monopoly and an increase in domestic seed companies is evident.

Opponents of genetically modified crops received a boost when the Delhi High Court upheld the Indian Patent Act, which states that seeds and life forms cannot be patented, and the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act), which biotechnology multinationals have tried to undermine, and ruled that key plant genetic material cannot be patented. The court was deciding a dispute between Monsanto and Nuziveedu Seeds Ltd, Prabhat Agri Biotech Ltd and Pravardhan Seeds Private Ltd, over interpretation of law, especially Section 3(j) of the Indian Patent Act and applicability of PPV&FR Act for transgenic plants.

Justice S Ravindra Bhat and Justice Yogesh Khanna, on April 11, ruled that Monsanto Technologies LLC does not have the patent for Bt Cotton seed varieties ‘Bollgard’ and ‘Bollgard II’. The Bench permitted Monsanto three months to register the seed varieties under the Plant Varieties Act (PV Act), which would entitle the firm to trait fee (royalty) as fixed by the Government, give it control over plant reproductive materials, but not the key genetic material, which would be available to the public for further research and development.

The ruling is a boost to domestic seed companies that used Monsanto’s gene to prepare Bt Cotton seeds for farmers, and will seriously curb the ability of multinationals to establish a seed monopoly in India, which is the goal of the GM industry. This could downsize the market for genetically modified seeds in India (in any life form) and pave the way for more environmentally sustainable agriculture.

Bt Cotton was pushed into India by the backdoor, which emboldened the MNCs to try to create monopolies in GM food crops, viz, Bt Brinjal (scuttled by then Environment Minister Jairam Ramesh) and GM Mustard. Illegal trials of many GM food crops have been exposed in many places. Swadeshi Jagran Manch co-convener Ashwani Mahajan and Bharatiya Krishak Samaj president Krishan Bir Chaudhary said the ruling vindicates efforts to protect farmers’ rights and India’s food security. The Competition Commission of India has been urged to take note of the judgement, complete its investigations into the company and ensure full refund of Rs 7,000 crore extracted as excess royalty from eight million farmers since 2002.

The judgement is especially rewarding in view of covert attempts by officials of the Union Ministry of Agriculture to help the company during hearings last year. Additional Solicitor General Tushar Mehta realised that while the Government of India stands aloof from the dispute between two private parties, the court should be apprised of the views of the Union Government, in writing, as its judgement could impact multiple litigations regarding seed patents and transgenic traits, in which the Centre is involved. A ruling delivered without knowledge of the Centre’s views could adversely affect the Indian farmer and consumer.

Mehta asked senior Ministry officials to file the Written Submission, Affidavit, and Application prepared by his office, as only the Ministry could intervene in the matter. The crux of his concern was that the law laid down in this case [FAO(OS)(COMM) No. 86 of 2017] could be extended to other crops like rice, wheat, soyabean, groundnut among others and even animals like chicken, pig, sheep, goat, wherever a transgenic trait is introduced. However, in a shocking act of subversion, the concerned officials failed (or refused) to file the written submissions in time; it took a special effort to place the Centre’s views on record.

Briefly, Monsanto’s patent from the Indian Patent Office (No. 214436) included the ‘nucleic acid sequence’ and process to insert the same in plant cells, and covered 27 claims. Monsanto claimed its invention comprised of identification of desired gene (Cry2Ab) from the DNA of Bacillus Thuringiensis (BT) bacteria, which is found naturally in soil; making (synthesizing) nucleic acid sequence by copying the Cry2Ab for insertion into a plant cell; and the method of inserting the said nucleic acid sequence into a plant cell.

Monsanto claimed its patent is a biotech invention containing infusion of Bt gene into the cotton genome, and eradicating pests afflicting the cotton plant. It sold 50 Bt Cotton ‘Donor’ seeds to Nuziveedu and its subsidiaries under licensing agreements in 2004 and 2015, which the companies used in their breeding programme to inherit the Bt cotton trait to their proprietary cotton plant varieties. Monsanto never licensed any ‘technology’.

Nuziveedu countered that Bt Cotton plant varieties developed by its group have distinct characteristics apart from the Bt Trait and Donor Seeds variety sold by Monsanto. They applied for Intellectual Property (IP) protection for all their varieties. Cotton was brought under the Essential Commodities Act, 1955, in December 2015, to help fix the sale price of cotton seeds to farmers at affordable prices uniformly across India. The Centre estimates that during 2010-15, domestic seed companies paid Monsanto’s subsidiary roughly Rs 1,600 crore in excess of actual trait value fixed by various State Governments.

The All India Kisan Sabha; Dept of Agriculture and Cooperation; State of Telangana; National Seed Association of India and some seed companies filed cases against Monsanto group before the Competition Commission of India. The CCI in April 2016 asked Monsanto not to enforce post-termination clauses on Nuziveedu group, which said it was not obliged to pay more than the “trait value” fixed by State Governments, adding that Monsanto’s patent concerns an un-patentable matter by reason of Section 3 (j), and is liable to be cancelled.

Nuziveedu argued that the Bt Trait cannot be sold directly to farmers, but has to be transferred into superior cotton hybrids through traditional plant breeding methods so that the seeds have the agronomic traits required for production of cotton. Moreover, “plants” are excluded from patentability by Article 27(3)(b) of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

Registration of a plant or transgenic variety under Section 28 of the PV Act confers certain exclusive rights to the breeder; Section 30 allows researchers to use any registered variety for developing new varieties; while Section 39 gives farmers the right to save, sow, re-sow, exchange, share and sell farm-saved seeds of any protected variety, including transgenic variety.

The ruling forbids Monsanto from stopping supplies to seed companies and holding farmers hostage. Monsanto will have to abide by Indian laws to operate in India. Reluctance will help revive the native seed industry which has been undermined by the agri-MNCs and their links with public-funded agricultural institutions that never bothered to assess the impact of GM seeds on soil, animal and human health.

(The writer is Senior Fellow, Nehru Memorial Museum and Library; the views expressed are personal)

Writer: Sandhya Jain

Courtesy: The Pioneer

People who were contrasting the NMC Bill must upsurge to the occasion, see its benefits and help expanding it rather than discontinuing is channel in toto. Actual functioning and implementation of the bill cannot be determined now, till will tell the benefits and effects of the same. The overhauling of the Medical Council of India (MCI) is underway in earnest. The Union Cabinet has approved the successor body, the National Medical Commission (NMC), which now stands the scrutiny of the Rajya Sabha Standing Committee on Health and Family Welfare. This later protracted debate, agitation and bitter contentions on the Bill from the entire spectrum of stakeholders. The most strident voice against the NMC has come from the Indian Medical Association, the largest conglomerate body of doctors of India. Their objections include a loss of autonomy for running the profession, an ill-thought bridge course proposal for alternate medicine practitioners to get licenses for allopathic practice, Government intrusion and opacity in decision-making that will embody the NMC as a result thereof. While most objections carry merit in their contentions, equally so, many are also fears that are being propounded prematurely. The advent of the NMC must be taken into historical context. The Medical Council of India, established in 1933, was the statutory body responsible for regulating medical education and professional licensing for doctors in India. The body was envisaged to be a self-regulating entity that was run by doctors for the interest of doctors and medical education in the country. The sordid unfolding of scandal, scams, corruption and the stark fall in standards of medical education has left a legacy that needed urgent and widespread reforms. While many may disagree on the nature of the successive body, there is unanimity on the need to dissolve the MCI in its current avatar. Initial piecemeal steps at reform were attempted by successive Governments but to little avail. The need for radical reform was deemed to be the only suitable way forward. Prof Ranjit Roy Chaudhury Expert Committee Report became the basis of the NMC — a larger umbrella body with an expanded mandate. The mandate now includes licensing of doctors, regulating undergraduate and postgraduate medical education through separate bodies, entrance and exit examinations, assessment of medical colleges, monitoring professional conduct and exerting appellate authority powers over State medical education boards. This onerous mandate was rightfully divided over multiple bodies which ensured that the NMC was more nimble and its decision-making not left to any monolithic power centre or cabal. The NMC is contoured to create a widely representative and consensus-driven organisation. The NMC will have a secretariat and Medical Advisory Board (constituted by States and Union Territories, comprising of doctors). Each of the four boards —Under-Graduate Medical Education Board, Post-Graduate Medical Education Board, Medical Assessment and Rating Board and the Board for Medical Registration — will find representation in the NMC. Nominees (of rank no less than Joint Secretary) from the Health Ministry, Human Resource Development Ministry and the Directorate General of Health Services, five members to be nominated by the Union Government and five rotating members from the Advisory Council. Qualification criteria for the NMC Chairman and Board heads are stringent and nominees can only be doctors. With a clear intent, NMC is envisioned as an inclusive body made up of a mix of members from the widest possible institutions. However, the NMC architecture in the Bill and its actual implementation and functioning is one that only time can tell. The NMC Bill will mark a radical move as it evolves from an elected body to a primarily nominated body. The ‘elected body model’ came under criticism, where the sanctity of the regulator, being made up of the regulated, was constantly under scrutiny. The new nominated model will take away some autonomy and equally, arbitrariness, that monolithic power centres in the erstwhile MCI came to embody. Issues like bridge courses and Government oversight remain contentious. But amongst three broad reform options — piecemeal corrections, complete Government take over and a mixed model, the latter seems to be the most acceptable and is seemingly the essence of the NMC. How this new body operates can only be determined with time. The Government has taken a consultative view of the final makeup of the body by asking for stakeholder representations on the Bill. One must use this avenue to get a better Bill, but not protest to stop the NMC in toto. This will not serve the interests of medical education and the fraternity but only ingratiate vested interests that have brought medical education to its nadir in the first place. (The writer is general manager, Operation and Public Affairs, Indraprastha Apollo Hospitals. He can be reached at dr.karanthakur@gmail.com)

Writer: Karan Thakur Courtesy: The Pioneer

The supreme court on Tuesday, declared that Article 370 of the constitution has acquired permanent status through years of existence. This will limit the power of Central government to make laws for the state – Jammu and Kashmir.

In any other country, the Supreme Court‘s observations on Tuesday that Article 370 of the Constitution conferring special status to the State of Jammu and Kashmir by limiting the powers of the Union Government and allowing the State Government to legislate independent laws would have sparked widespread public debate. Instead, caught up as our politicians – both those who support and those who oppose Article 370 — are in a discourse informed by competitive sloganeering sans substance, and that too in an election year, nobody is talking about it.

Hearing a petition seeking the declaration of Article 370 as a temporary provision which lapsed with the dissolution of the Jammu and Kashmir Constituent Assembly on January 26, 1957, the petitioner also sought a declaration that State Constitution of Jammu and Kashmir was void, inoperative and ultra vires of the Constitution of India. The petition has been filed at a time when the validity of Article 35A of the Constitution has also been challenged for denying women marrying outside the State the right to inheritance and restricting their employment while the same does not apply to men. It is in this context that the Bench referred to a 2017 apex court verdict as having “settled” the challenge to Article 370 by ruling that the provision had acquired permanence as it could no longer be abrogated, given the Jammu and Kashmir Constituent Assembly had ceased to exist and the President would therefore be unable to get fulfil the mandatory requirement of getting its recommendation for scrapping the Article. The Bench directed the Centre to formulate its response in three weeks, when the next hearing of the ongoing matter has been scheduled. The Additional Solicitor-General assured the Court the implication of the judgment would be studied by Government.

Verily, the cat has been set among the pigeons. The Government must respond both legally, as is its duty, and politically, as it is its moral obligation to given the ruling party’s long standing demand that Article 370 must be abrogated. While better legal minds than ours are seized of the matter, it stands to reason that the obvious line of argument to take is that the State Assembly of Jammu and Kashmir, as the successor to the State’s Constituent Assembly and born of it, would be a perfectly competent authority to make the recommendation to the President. The intention behind the requirement for a recommendation was clearly to ensure the people, through their representatives, had a say in the matter and that condition is adequately and fully met by reference to the State Assembly duly elected by universal adult franchise. Further, it may be argued that as compared to the Constituent Assembly, the State Assembly is a more representative body. There also needs to be a legal distinction drawn between the plea to strike down Article 35A, which is on the grounds of denial of gender equality, and that of the abrogation of Article 370, which relates to territorial jurisdiction of the Indian state which is Constitutionally bound not to deny any person equality before the law within the “territory of India”. If one accepts, as we do, Jammu and Kashmir as an integral part of India, there can be no question of Article 370 being allowed to stand. Ditto, if we affirm that there can be no discrimination on the basis of gender in India, Article 35A too must go.

Politically, the sober elements in the BJP and other one India forces including right-thinking sections of the Congress have their work cut out given the heightened expectations that some movement towards the abrogation of Article 370 would be made given the mandate in the General Election of 2014. The patience of the Indian people is not infinite.

Writer: Pioneer

Courtesy: The Pioneer

Politicians in National Capital, Delhi, are attacking the rich community to take stringent policy decisions, judiciary is following the legal action.

The sealing being undertaken by the oddly-named Environmental Pollution Control Agency is a smart move to rein in the rampant zoning violations that have been taking place in the national capital for the past three decades. The crackdown on zoning laws is a first for an Indian city and for that the Supreme Court has to be commended, particularly as they have refused to give relief to traders who have violated laws for years on end. The Supreme Court judges looking after this case have correctly observed that short-term relief given by the authorities two decades ago was perpetually extended. This coupled with the rampant land-grabbing and construction of illegal colonies is a smack on the face of urban planning, Delhi, like any other major Indian city with the notable exception of Chandigarh is an urban mess.

While the EPCA would have been correct to consider the fact that the city has grown, the traders demand for a Central Ordinance to legalise their wrongs forgets the fact ordinances can’t be passed during a Parliamentary session no matter how useless. The Supreme Court has now decided to act against illegal operations in residential areas, which have seen rampant commercialisation particularly over the past decade. This despite the creation of millions of square feet of new commercial zones in the city, as people turned their homes into showrooms and offices creating a traffic nightmare in some upscale areas. The Court mention of the deadly fire in Mumbai thanks to illegal construction at a bar is noteworthy. Until today, no sealing action has taken into account the rampant violation of fire-safety norms across New Delhi. Some of the city’s toniest areas like Khan Market and Hauz Khas Village are veritable fire traps, something that most patrons recognise. Several office buildings violate fire-safety norms.

The fact is that India and Indians always have a way around rules and regulations, we even celebrate it by calling it ‘Jugaad’. The problem in India is not of a lack of laws and rules, but a lack of enforcement. The Supreme Court and the EPCA are just enforcing the laws and people are crying. Yes, the rules should keep up with the times, and on that front there has been a failure of governance for decades on end, and even the judiciary by refusing to act for years has to share some of the blame. But if India is to become a modern country it have to become a law-abiding nation, and yes, the laws should apply equally to the rich and poor. But, while sparing the poor for now, the Supreme Court must indicate that the free lunch of breaking rules is over for everyone.

Writer: Pioneer

Courtesy: The Pioneer

As business failures slow down expansion in the third-largest economy in Asia, law enforcement seek to deal decisively with these failures that will lead to a major overhaul of the India’s bankruptcy law.

The Insolvency and Bankruptcy Code, 2016 was conceived as a path-breaking legislation to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals, in a time bound manner. The avowed objective was also to secure maximisation of the value of assets of such persons, to promote entrepreneurship and balance the interest of all the stakeholders. The Legislative intent was to improve ease of doing business and to facilitate more investments, leading to a higher economic growth and development.

The Supreme Court of India in a recent judgment in Innovative Industries versus ICICI Bank (2018) 1 SCC 407, authored by Hon’ble Justice RF Nariman, has exhaustively dealt with the provisions of the Code. It has eruditely delved into the Bankruptcy Reforms Act, 1978, adopted by the US and the Insolvency Act of 1986 applicable in the UK which has served as a model for the present Code. Whereas, the US code continues to favour the debtor, the UK code favours the creditor.

It may be pertinent to mention that the Code was meant to ensure a collective process where all stakeholders participate to collectively assess the viability of a resolution. However, demonstrably, this aspect is lacking in the Code which lays over impetus to a financial creditor and a corporate debtor. The term “stakeholder” is not even defined under the Code. A perusal of the scheme of the Act leads to an irresistible conclusion that the Code is overtly “creditor friendly”.

The Code postulates two types of creditors, namely a financial creditor and an operational creditor. A financial creditor is defined as “any person” to whom a financial debt is owed whereas an operational creditor is one on whom an operational debt is owed. A financial debt, in broad terms, is money borrowed against interest. An operational debt means a claim on account of providing goods and services and includes employment. Section 7 of the Code provides for a procedure for initiation of corporate insolvency resolution process by a financial creditor.

Sections 8 and 9 provide for a procedure for initiation of corporate insolvency resolution process by an operational creditor. In keeping with the spirit of the Code, Section 12 provides for strict timelines for completion of the resolution process. The resolution process must be completed within 180 days with a maximum period of extension by another 90 days by the adjudicating authority i.e., the National Company Law Tribunal (NCLT).

The Code in Section 14 postulates a complete moratorium against enforcement of any security interest against the company in corporate insolvency or its assets, once the adjudicating authority admits the application under Sections 7 or 8 of the Code. Thereafter, there is a public announcement of corporate insolvency resolution process under Section 15 of the Code.

The Code further provides, under Section 16, for appointment of an interim resolution professional (IRP) by the adjudicating authority. Once an IRP is appointed, the management of the affairs of the corporate debtor vests in the IRP and the powers of the Board of Management or the partners, as the case may be, stand suspended under Section 17 of the Code.

The duties of the IRP inter-alia include assessing the financial health of the company after collecting all information relating to the assets, finances and operations of the corporate debtor. The IRP is further mandated to receive and collate all the claims of the creditors against the company. It is, thereafter, required to constitute a committee of creditors (COC). The COC in turn appoints a Resolution Professional (RP) to manage the affairs of the company. The COC comprises of all the financial creditors and their voting is determined on the basis of the financial debt owed to them. All decisions of the COC is to be taken by a vote of not less than 75 per cent of voting share of the financial creditors.

Section 23 of the Code mandates the RP to conduct the corporate insolvency resolution process. Under Section 25 it is obligated to invite prospective lenders, investors and any other person to forward resolution plans. It has to put all the resolution plans before the COC.

Further, Section 29 requires the RP to formulate an information memorandum containing all the details of the company and the same is required to be given to the resolution applicants.

Curiously, the Code suffered an amendment on November 23, 2017 by an Ordinance wherein Section 29A was inserted after Section 29 of the principal Act. A perusal of the Statement of Objects and Reasons of the Amendment Act clearly shows that the proposed amendment sought to restrict people who with their misconduct contributed to defaults of companies or who were otherwise undesirable, or could misuse their position due to lack of restriction to participate in the resolution process and regain control of the corporate debtor.

However, significantly, the element of ‘misconduct’ is conspicuously absent in Section 29A which seeks to totally exclude host of stakeholders viz. the earlier promoters, holding company, guarantors etc, from the resolution process.

Thus, the amendment is clearly against the purpose stated in the Statement of Objects and Reasons of the Amendment Section. Therefore, the questions that beg answers are: (i) How can misconduct be established without adjudication? (ii) Why should stakeholders who are victims of bonafide business failures be excluded from the resolution process? This is also against the interest of the stakeholders of the company who are entitled to the best resolution plan. A legal challenge to this amendment could well result in the amendment being declared as ultra vires Articles 14 and 19 (1)(g) of the Constitution of India.

Section 29A has the potential of obfuscating the very purpose of the Act i.e., the right of the creditors to choose the best resolution plan under Section 30 of the Act. This anomaly is compounded as the adjudicating authority is also compelled to put its seal of approval under Section 31 of the Act on a resolution plan which could very well be the second best in the light of an unreasonable fetter imposed by Section 29A of the Act.

The Supreme Court in Mobilox Innovations Private Limited versus Kirusa Software Private Limited (2018) 1 SCC 353, speaking through Justice Nariman, has in extenso taken note of “Legislative Guide on Insolvency Law of the United Nations Commission on International Trade Law” which is taken as Model Law. Even this Legislative guide does not contemplate a draconian provision of exclusion of some important stakeholders in Section 29A without having any reasonable nexus or rationale with the object sought to be achieved i.e. best resolution for all the stakeholders of the corporate debtor.

(The writer is an Advocate, Supreme Court of India)

Writer: Anupam Lal Das

Courtesy: The Pioneer

Legally, especially in terms of the Constitutional rights of individual citizens of India, there is little to quibble room on the Supreme Court order of March 20 which has paved the way for anticipatory bail to offenders under the SC/ST (Prevention of Atrocities) Act and introduced safeguards in an attempt to weed out false and/or frivolous complaint at the threshold point of filing of a complaint under the Act. The Court has not in any way interfered in the intent, provisions or aims of the Act which is a progressive and much-needed legal instrument to prevent atrocities against members of the Scheduled Castes and Scheduled Tribes; it has only, after detecting rampant misuse of the provisions for which official records are available with the National Crime Records Bureau tried to ensure that the warp and woof group politics does not trump individual rights. The so-called “dilution” of the Act, however, has sparked a violent, nationwide agitation in which at least nine persons lost their lives in a single day on Monday with all political parties including the ruling BJP taking a stand against the apex court verdict. Politics, we predict, will win over logic yet again in this benighted land.

The primary argument against the Court order is that all laws are subject to misuse but that doesn’t mean we should do away with the law. This is a perfectly valid argument and one which we endorse. But when the data suggests widespread and cynical use of the justifiably harsh provisions of an Act to prosecute bigoted individuals who would dare insult and/or oppress in any way, manner of form our fellow citizens using their “caste” as a marker, and the highest law court in the land after due deliberation tweaks the mode of enactment of certain provisions of the Act which were specifically misused to strike a balance between the rights of an accused and the need to ensure protection from hate crimes to members of a historically oppressed community which is what an atrocity under the Act amounts to, all political parties and interest groups need to be more circumspect. It is perfectly understandable, however, given the cynical times we live in and with the General Election fast-approaching, no political party will listen to sober advice. That is par for the course. But it is still our duty to flag a vital issue emanating out of Monday’s Bharat Bandh agitation called by various SC/ST groups prima facie backed by different political parties in different States.

The violence which resulted in nine deaths including six in Madhya Pradesh and one in Rajasthan, both Assembly poll-bound States ruled by the BJP, apart from two in Uttar Pradesh where the Bahujan Samaj Party has its strongest base, should be a matter of grave concern for thinking, peaceful citizens including leading Dalit intellectuals and leaders. To be assertive in protesting an issue one feels strongly about is one thing, indulging in an orgy of violence, arson and wanton destruction of public property quite another. Any justification of such acts in the name of “an expression of rage”, however qualified, only empowers the anti-nationals who indulge in atrocities against members of the SC/ST communities. That some legal-activists, academic-activists and media-activists have accused the Supreme Court of having a “caste bias” because they disagree with its decision is the thin edge of the wedge for rule of law in India. Admitting the Government’s review petition filed against the March 20 order on Tuesday, the Court iterated that there has been no dilution of the Act and the innocent must be protected, while issuing notices to all parties and holding it will take up the issue of revisiting its order in 10 days’ time. Hopefully, all sides will use this time to think about how to de-politicise the situation rather than raise the pitch for electoral gains.

Writer: Pioneer

Courtesy: The Pioneer

Although India is a democratic republic but equality to the schedule cast and schedule tribes is still not available. People of SC/ST communities are suffering at every phase of their lives.

On March 20, 2018, the Supreme Court in its decision in  SK Mahajan versus the State of Maharashtra examined the manner in which the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 was being misused. While doing so, the Supreme Court unfortunately displayed selective amnesia by focusing on only certain instances of misuse, passing broad sweeping comments and issuing guidelines preventing such misuse while in essence ignoring the decades of abuse and exploitation that members of the scheduled caste (SC) and scheduled tribe (ST) have been and still are subjected to.

The judgment of the Supreme Court is another dispiriting blow to a country whose current Government formed by the Bharatiya Janata Party (BJP) has overtly and in some cases, subtly tried to implement the philosophy of division, discrimination and exploitation espoused by its philosophical father, the Rashtriya Swayamsevak Sangh (RSS).

In this week’s column, I will attempt to highlight the manner in which this Government has failed our most downtrodden communities and why we must be wary of their hate-filled approach that places more importance on the varna system than the words of our Constitution.

The state of affairs: When I say that SCs, STs and OBCs are some our most downtrodden communities, I don’t say so lightly. To give some perspective, STs constitute approximately 8.2 per cent of India’s population but only 22.6 per cent of such STs have toilet facilities. In terms of dropouts, over 70.6 per cent of SC boys and over 71.3 per cent  of SC girls drop out before Class X. In terms of absolute poverty, almost half of all Adivasis are classified as poor.

These are just cold, hard numbers for thought and looking back over the past few years at the suicide of Rohith Vermula, the hacking of Shankar, a 21-year-old Dalit in broad daylight and the innumerable instances of violence, paints a miserable picture where SCs, STsand OBCs are treated as second-class citizens in our country. Ideally, a responsible, sensitive Government which respects the words of our Constitution would take all efforts to ensure that this disparity in treatment, as well as the brutality that these communities are subject to, is addressed as a matter of priority.

Sadly, the BJP Government does not classify as one such Government. Instead, through its words and actions, the BJP has betrayed the Constitution of the country and has failed these communities.

Words and actions: As the numbers highlighted above show the status of SCs, STs and OBCs is deplorable. Reservation is an important tool, which can help bridge this disparity and enable SCs, STs and Dalits to achieve some amount of upward mobility and escape the shackles of poverty and deprivation. Clearly though, this is an idea which does not sit well with the BJP and the RSS. Repeatedly, we have seen comments from Mohan Bhagwat, Manmohan Vaidya and other leaders voicing their displeasure with the idea of reservation.

This is because reservation is a mechanism, which can help ensure that people of all castes and communities enjoy the benefits of India’s growth. The idea behind reservation is to ensure an India where no community or caste is left behind.

This, however, is not the idea of India that the BJP/RSS harbours. By adopting this language of exclusion and hatred, the BJP repeatedly demonstrates little regard for the values of our Constitution and lesser still for the dignity of all people irrespective caste, religion or creed.

Unfortunately, it’s not just the words of the BJP and the RSS that betray their true divisive intentions but their actions too.

I have seen the BJP try to implement this politics of divisiveness and hatred in my home state of Jharkhand. The BJP has consistently made attempts to take away the rights of SCs and STs in the state. Right from 2010, when Arjun Munda and his BJP Government made attempts to dilute the provisions of the Chotanagpur Tenancy Act (CNT) by waiving off the requirement to obtain the

deputy commissioner’s consent for transfer of tribal land (only to be rapped on its knuckles by the High Court) to just recently when Raghubar Das and his Government have sought to make some striking changes to the CNT and the Santhal Pargana Tenancy Act (SPT).

Both the CNT and the SPT were originally enacted to protect the land rights of the tribals from this region, however, the BJP Government has sought to systematically take away these protections and make it easier for private players to steal the land of tribals and Adivasis.

While originally, under Section 21 of the CNT, the use of tribal land for anything other than agriculture, constructions of ponds, well and brick making was barred, the BJP has sought to amend the act to empower the Government to make rules for non-agricultural use of agricultural land.

Other amendments to the acts seek to not only expand the list of projects for which tribal land can be acquired but also to do away with the provision of compensation in case of fraudulent transfers.

Another example of how the SCs/STs and OBCs are being targeted unfairly is the recent proposal of the University Grants Commission, which has received the nod of the Ministry of Human Resource Development.  As per this proposal, the University Grants Commission proposes to calculate the reservation department-wise rather than on the basis of the total number of posts in a University.

This proposed change is certain to impact the already low number of faculty members from the SC/ST and OBC community at central universities.

It is therefore clear that the BJP has adopted an all-out assault on the rights of SCs, STs and OBCs by attacking their right to education, their right to employment and their right to property. There is, however, no doubt that the people of the country are wising up to the mala fide motives of the BJP and no matter how many times Prime Minister Narendra Modi and his Government make empty promises and give long-winded speeches about being a Government that cares about its most neglected, the facts on the ground make for some uncomfortable viewing for those who respect and adhere to values of our Constitution.

(The writer, Jharkhand PCC president, is a former MP and IPS officer. Views expressed are personal and entirely of the writer)

Writer: Ajay Kumar

Courtesy: The Pioneer

The Supreme Court on Monday mentioned that we must to give equality to all communities but UCC is not negotiable.

Conflict is endemic to value pluralism in all its forms, a political philosopher with his ear to ground realities once wrote, so there is no point pretending that the patriarchal, misogynist and supremacist political-religious leaders of various communities will give in easily to the prospect of gender, economic and social equality enacting a prospective uniform civil code for India must be aimed at.

For over 70 years, we have waited for the cry for reform of personal laws that are in conflict with our Constitutional right to equality to emanate from within various religious communities. That has now come to pass in some measure and the both the executive and the judiciary have duly taken cognizance of this development as they are duty-bound to. But even if this were not the case, it is the duty — sadly neglected by post-Independence Central administrations to appease fundamentalists in minority communities in particular — of the Government to push forward with ensuring that no regressive community laws prime facie ultra vires of the Constitution allow individual rights of bonafide citizens of India regardless of gender, jaati or mode of worship to be trumped by group rights in the name of religious freedom.

It is against this backdrop that the Supreme Court on Monday, after its landmark ruling last year making instant triple talaq or talaq-e-biddat illegal, agreed to examine the constitutional validity of social (mal)practices such as polygamy and nikah halala, nikah misyar and nikah mutah among Muslims. While the practice of polygamy within the community allows Muslim men to have four wives, nikah halala is the humiliating process through which a Muslim woman who wants to re-marry her husband after a divorce must marry and consummate a marriage with a different man before she can get back together with her (first) husband. The other two forms of nikah are “temporary marriage” contracts entered into by men “for their pleasure” the petitioners, including aggrieved Muslim women, submitted. Allowing the petition, the apex court agreed to refer the matter to a Constitution Bench for a comprehensive hearing given its importance. Crucially, the Court served notice to the Centre to elicit its views, holding that the issues raised by the petitioners were not addressed by the Supreme Court Bench in the Shayara Bano case which abolished triple talaq.

The Centre must, now, representing the will of the people of India, ensure that it is unequivocal in its opposition to these practices in the Muslim (and any other communities where approximations of the same are practiced despite laws prohibiting it). Further, discriminatory property and/or inheritance laws in the Muslim and/or other communities minority or majority which make a mockery of gender equality must also be flagged by the Government in its reply to the notice. Even if a de jure Uniform Civil Code takes a bit of time given such a promulgation by the Government is dependent on many factors, not least a two-third majority in both Houses of Parliament, it would be the first step in ensuring that at least a de facto one law for one nation on the civil side too becomes a reality sooner rather than later. It may or may not win the Government votes but such a move will certainly earn it the eternal gratitude of millions of Indians from all communities, and especially Muslim women.

Writer: Pioneer

Courtesy: The Pioneer