Uncategorized – The Law Blog

Debatable topics, Now happening, Uncategorized

The Tyranny of Forced discipline

Posted on 18 Dec 201618 Dec 2016 by The Law Blog

This article has been written by Raina Mahapatra. Raina is currently pursuing her undergraduate course from Symbiosis Law School, Pune.

The Indian Express I opened today looked up at me with a plethora of information and a particular article on the seventh page caught my eye, quite rightly so. “No beard, uniformity must in IAF”, it read.

The Supreme Court on Thursday said that IAF personnel had no right to sport a beard on religious grounds, lest the ‘uniformity and discipline’ of the defence forces be hampered. Citing the power of the Parliament to determine the extent of restriction on fundamental rights among armed forces personnel as provided for in Article 33 of the Constitution, the apex court dismissed the appeal by Airmen Mohammed Zubair and Ansari Aaftab Ahmed. The appeal was put forward challenging the High Court’s dismissal of their plea for quashing the IAF order directing them to shave off their beards. The bench headed by Chief Justice T S Thakur and comprising of Justices D Y Chandrachud and L Nageswara Rao held that the petitioners had failed to show that their case fell within the ambit of Regulation 425(b) which says “personnel whose religion prohibits the cutting of the hair or shaving of the face of its members will be permitted to grow hair or retain beard.”

According to the court, although India treats every religion equally, such an action is quintessential to a cohesive, disciplined and coordinated functioning of the armed forces.

And while some might find this unrelated, it brought into my mind’s questioning the SC Anthem Ruling that plunged into controversy not so long ago wherein the honorable Supreme Court once more demonstrated that cinema is a soft target for all concerns nationalistic. How is it, if our nation respects all religions, that there is a requirement to strip down one off his unique identity in order to instil a sense of ‘uniformity’ within him? Why does our nation require symmetry in physical appearance or an outward act of patriotism so badly?

Days after it forced the patriotic pill down our collective throats by making the playing of national anthem and standing to it mandatory before movie screenings in all cinema halls, 12 people were detained during the International Film Festival of Kerala for not rising and 8 people, who chose not to rise in opposition, got beaten up in a Chennai cinema hall by a mob of 20.

What needs to be understood is that most of these people who voluntarily choose not to obey such a rule are not doing it out their hatred or lack of love for their nation but as a necessary act of defiance against the compulsory thrusting of nationalism against their will.

Since when does our judiciary require positive acts on our behalf in order to be satisfied of the feeling of patriotism that rests in our heart? How is nationalism being forced down our throats as a compulsion the only manner in which the SC can finally be satisfied with our patriotism? How is the judiciary the only possible protector of our nationalistic feelings now? The questions never end.

Of all places, especially in a country wild about movies, cinema halls are visited by the people to take a break from their lived reality and blow off steam; for the Supreme Court to single out the largest mass entertainment venue for such mandatory “inculcation” reeks of a design to deepen the state’s coercive powers over us. The only ones it has empowered through this order are chest-thumping jingoists and aggressive elements. Literally bashing people who do not consent to be force-fed nationalism, physically and legally, can be pictured in totalitarian, big-brother regimes, but not in the country we call home. Yet it is being allowed to happen.

The Freedom to Speech and Expression being guaranteed by our constitution surely imbibes within itself the right to denial and positively express our intention against something that is being forced on us without any reason. And yet, the forced discipline.

The December book bucket

Corporate and Finance, Uncategorized

GST on the way, Labor Reforms on the Anvil!

Posted on 29 Oct 201629 Oct 2016 by The Law Blog

This article has been written by Amrit K.N. Pradhan. Amrit is a student at Rajiv Gandhi National University of Law, Patiala.

“Precaution is better than cure” – Johann Wolfgang von Goethe.

I have probably heard this fable more than ever in my lifetime, it looks like the trend will continue. It certainly puts my parents and my sister on the brink. I apologise to them.

Changing tracks…

Since the inception of NDA-II under the reigns of PM Modi the business environment has certainly made headway. The World Bank Group’s “Ease of doing Business” (an index which measures the regulations and protections offered by a country.)deserves a healthy share of the pie. The fable has been so much in vogue that now a provincial version of it has been ‘manufactured’.

The first major instance, where NDA-II tried to make its mark in promoting a conducive business environment was by introducing The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015. The bill created five special categories which were exempted from taking consent from 80% of land owners (70% in case of PPP.), a tumultuous process. They were defence, rural infrastructure, affordable housing, industrial corridors and infrastructure projects including public private partnerships where the government is the owner of the land.

The process was a certain hindrance in fast-tracking business investments and projects in the country. The Government in power passed the muster easily in Lok Sabha but same was not the case in the Rajya Sabha, where it did not have a majority like it had in Lok Sabha. It passed ordinances under Article 123 of the Indian Constitution several no. of times, in the meantime they tried to garner the required votes to pass the bill. Unfortunately for Indian economy and business environment, the time gained through promulgation of ordinances garnered zero returns.

Remember, your debut class in economics where one of the first things you learned or noticed that Land, Labour and Capital are the basic factors of production. So, NDA-II also noticed the basic need to make the land acquisition process easier and quicker to have an able base to setup businesses in the country and take the country on the path of “Development and Job Creation” (a plank on which PM Modi won the Elections 2014.). But, it failed.

Next basic thing is Labour. You can criticize them for skipping it prima facie. For a moment, if I tell you it was a wise political move to not to escape the bad impression in the eyes of the general public which LARR Bill had created and jump on easing the capital flow. Then, I am sure the criticism would be repudiated.

The Government eased the capital flows by making it easier for sectoral firms to utilize and attract foreign investment through FDI. SEBI chipped in by easing the regulation environment for FIIs or Foreign Institutional Investors. GST was part of easing the Capital flow, it faced hurdles but ultimately it passed the muster. Fingers crossed! by April 1, 2017 hopefully we will contribute to the governance process by paying our fair share legally under the GST or Goods and Services Tax.

Looks like the script of ‘one single nation, one single tax’ will be played around with to account for four slabs of 6%, 12%, 18% and 26%. I am on the cusp of reading and learning through Emeritus Fellow of Merton College, Oxford economist Vijay Joshi’s latest writing, India’s Long Road – The Search for Prosperity. It has gone quarter of way in appreciating the current reign of PM Modi. However, it also points out frailties in Labour, divestment of governmental stakes in PSUs, vicious tax evasion and India’s reticence in joining the free-trade agreements currently being negotiated throughout the world are some of the lucid pointers which needs quick appraisal for the current government to grow at a rate near to 8% to fulfil the promises of “Economic Development and Job creation”.

First of those suggested by Vijay Joshi, who has been the Special Advisor to Ministry of Finance as well as Governor, Reserve Bank of India is planning to be dealt with by Team Modi & Co. The work had begun when the current government took over in May, 2014 to amalgamate and cull down the various Acts into as few and updated as possible. As per sources, they have been trimmed into four Labour Codes underlining Labour, Industrial Relations, Social Security plus Industrial and Safety Welfare.

The Labour Code underwrites Minimum Wage Act, 1948 as the parameter for wages. The Industrial Code restricts formation of a trade union. Social Security amalgamates 6 acts into one code, Industrial Safety and Welfare does the same with three underlying acts.

This should up the ante of India in World Bank’s Ease of Doing Business Index 2017. Rankings apart, on the ground applicability of the law will be crucial to ‘Ease of Doing Business’.

Fundamental Rights, Uncategorized

Right to Education under Law

Posted on 17 Oct 201617 Oct 2016 by The Law Blog

This article has been written by Neeti Rana. Neeti, a recent graduate of Law College, Uttaranchal University, is a habitual writer and has a penchant for legal research.

Education is a fundamental human right and essential for the exercise of all other human rights. It promotes individual freedom and empowerment ad yields important development benefits. Yet millions of children and adults remain deprived of educational opportunities, many as a result of poverty. Education is a powerful tool by which economically and socially marginalised adults and children can lift themselves out of poverty and participate fully as citizens.

Education has been neither free nor compulsory. For the state to guarantee education provision through a legislative enactment is a major shift, given a history of provision which has consistently failed disadvantages groups, privileging the interests of minority urban elite. As studies have consistently shown over time, those excluded continue to reflect inequalities within the wider social, economic and political fabric, particularly those of caste, class and gender. Axes of inclusion are broadly predicted around the following occupational and social classification children of the upper castes or from smaller families, or from households that are economically better off or dependent on non-agricultural occupation, with parents who are better educated, or from villages that have better access to schools thus underlining the roles played by social position , economic opportunity and the power exercised by local community leadership in securing state provided resources in education. Cutting right across these axes is the gender gap, which is more or less consistent across social groups.

The gap between discourse and operational framework in all policy efforts in education, and more wide development, has long been cited as a reason for India’s poor performance in securing equitable educational opportunity for all. Despite a range of commitments made in the Indian Constitution to equality, addressing the historical disadvantages faced by certain groups, and universal education, policies on the ground have done little to fulfil the ambitious vision developed at the birth of the modern Indian nation-state. This gap appears in danger of persisting even with the shift to guaranteeing the right to education. In this section, some of the issues raised by the current approach are explored.

To quote Justice PN Bhagwati, Former Chief Justice of India: “The child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into their maturity, into a fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being, otherwise there cannot be a healthy growth of the nation.”

Every generation looks up to the next generation with the hope that they build up a nation better than the present. Therefore education which empowers the future generation should always be the main concern for any nation. It is now an undisputed fact that right to education can be realised on a national level only through compulsory education, or better say, through free compulsory primary education. However, due to the widespread poverty and various prejudices in the society, the efforts to develop an educational system in India with full access, equality and quality of educational has not been achieved. The inability to check the dropout rates among the marginalised sections of the population is another cause of worry.

Criminal Law, Debatable topics, Uncategorized

Everything you need to know about the Law Of Sedition

Posted on 14 Sep 2016 by The Law Blog

Sedition, simply put, is any conduct or speech made that is intended to persuade others to oppose the State. The law of sedition was originally drafted by Thomas Macaulay but was only brought in India by the British to repress free speech during India’s struggle for independence. Presently, this law is read as Section 124A under the Indian Penal Code. As per the Code, ‘Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India’ shall be punished with life imprisonment.^[1] Hence, the offence is considered grave in nature.

Essentially, this section requires:

Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards, the Government of India.
Such act or attempt may be done (i) by words, either spoken or written, or (ii) by signs, (iii) by visible representation.

To be called as an offence, what this section must have is the intention with which the language is used and what is rendered punishable by section 124-A of the penal code is the intentional attempt, successful or otherwise, the rouse as against Government the feelings enumerated in the section, a mere tendency in an act to promote such feelings is not sufficient to justify a conviction; in other words, the prosecution must bring home to the accused that his intention was as is described in the section itself.^[2]

The latest example of the offence was seen when the Delhi Police arrested Kanhaiya Kumar, the President of the Jawaharlal Nehru University (JNU) Student’s Union, on the complaints of sedition as he allegedly raised anti-India slogans in a student rally. However, he was later released on an interim bail.

Interestingly, when the first amendment took effect in the Constitution, which included restrictions on the Fundamental Right of freedom of speech and expression through the addition of words “in interest of” and “public order”, Mr. Jawaharlal Nehru was of the opinion that the law of sedition should be declared unconstitutional. He had said, “…now so far as I am concerned [Section 124-A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons. The sooner we get rid of it the better.”

Thus, there has been ever rising conflict between Section 124-A and Article 19 (1) (a). This dispute came to an end in 1962 where the issue before the court was whether Section 124A was violative of Article 19(1)(a) relating to freedom of speech and expression.^[3]The Supreme Court held the offence to be constitutionally valid. Such actions would be penal as long as the matters related to the intent or tendency to induce public disorder or violence.

There is no denying the fact that Section 124-A has been misused by the law enforcement agencies. There is a reason why sedition has lost its potency and that is because this was a colonial law introduced to suppress the opinion and expression which ought to be raised. However, with the changes the State has gone through, a change is also required in this law.

Yes, national security is our priority and therefore Section 124-A is protected by the reasonable restrictions but mere usage of words or actions cannot suffice the intent to influence an educated society against the State. The question of the hour is “Do we require a law which was only introduced to ultimately contain the voice of the people who had the courage to speak and change the future of India?”

The answer, in my opinion, shall be unanimous.

[1] The Indian Penal Code, 1960

[2] Satyaranjan Bakshi v. Emperor (AIR 1927 Cal 698)

[3] Kedar Nath Singh vs State Of Bihar 1962 AIR 955

AUTHOR

Srishti Gupta