The Pros and Cons of the NMC Act

Healthcare dispensation in India has not exactly been in the best of health of late. It has been at the receiving end of numerous symptoms viz: corporatisation and its fallout, reluctance among doctors to serve in the hinterlands, privatization of medical education and, corruption within the ‘watchtower’ of practice of medicine in India—the Medical Council of India (MCI). It is imperative that this vital, yet ailing sector be nursed back to health and vitality.

The BJP-led NDA government brought in the National Medical Commission (NMC) Bill, which was passed by the Rajya Sabha and Lok Sabha on August 1 and July 29, 2019 respectively to become an Act. The Act, which will repeal the Indian Medical Council Act 1956, was not received well by India’s medical fraternity. Doctors owing allegiance to, and exhorted by the Indian Medial Association (IMA), struck work across India.

An earlier version of the Bill was introduced during the previous Lok Sabha and later referred to the Parliamentary Standing Committee on Health and Family Welfare. It lapsed with the dissolution of that Lok Sabha. Is the bill disastrous, as the doctors led by the IMA make it out to be?

Health, Law, National

By George Jacob

September 13, 2019

The Opacity of Judicial Appointments

Late last evening, in response to the questions raised regarding Justice V K Tahilramani’s resignation purportedly over her seniority being overlooked, the Supreme Court issued this rather cryptic statement:

“… it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same.”

This interesting sleight of hand whereby the Collegium reiterates that it ‘does’ have cogent reasons for the transfers but ‘won’t disclose them’ is reflective of an understanding the judiciary has long held regarding accountability of its own actions—as long as the appointment process is formally free of the executive, the Collegium needn’t be accountable to anyone else for its actions.

Law, National, Opinion

By Mythili Vijay Kumar

September 9, 2019

Ram Jethmalani and the Emergency

Ram Jethmalani was the Chairman of the Bar Council of India during the most tumultuous period (1975-1977) for judiciary and democracy in contemporary Indian history.

Under his stewardship, Bar Council of India streamlined the rules for the general conduct of legal profession through the introduction of Bar Council of India Rules, 1975. When lawyers appearing for unpopular and infamous accused in criminal matters were decried, the Bar Council of India under the Chairmanship of Jethmalani provided the much needed safeguard when it stated in the 1975 Rules in no unclear terms that:

“It shall be the duty of an advocate to fearlessly uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which required that no man should be convicted without adequate evidence”.

Features, Law, National, Obituary, Opinion, Politics, Profile

By Mukund P Unny

August 31, 2019

A Brief History of Judicial Perversions

Subsequent to the Emergency, it could be argued that the judges in the higher levels of judiciary have recovered their lost self-respect but that trend is being reversed steadily. The less said the better about the judges in the lower courts. The recent episode of a judge’s tussle with that Russian tome War and Peace made me sit down to string together a bunch of rambling that have made the general public squirm in embarrassment at the way the judges conduct themselves.

Following the furore that the comments of Justice Sarang Kotwal, of the Mumbai High Court, caused across the country about War and Peace, he lost lost no time in trying to save whatever remained of his reputation: “No, I didn’t mean that way…actually I was not referring to War and Peace…it’s a classic I know, but only reacting to the lists of CDs and books seized….” Justice Kotwal had sternly demanded the previous day as to why Vernon Gonsalves, facing trial in the Bhima Koregaon case, was keeping such objectionable books as War and Peace.

The next day Yug Chaudhary, an advocate representing another accused in the Bhima Koregaon case, helpfully told the judge that the media had wrongly reported that the court raised questions on the accused keeping a copy of Leo Tolstoy’s War and Peace whereas the book found in the punchnama was War and Peace in Junglemahal: People, State and Maoists by Biswajit Roy; not War and Peace by Leo Tolstoy. Now if that had been the case, why would the judge have observed, “…War and Peace is about war in another country. Why were you keeping these books at your house?” Are we to understand the judge didn’t know where Junglemahal existed?

Law, National, Opinion, Politics

By T N Gopalan

August 24, 2019

Balkanising the Idea of India: NRC in Assam and siege in Kashmir

While the entire country and its media are busy dissecting the legality of the abrogation of Article 370 in Kashmir, another part of India is being ripped apart on the basis of ancestry and citizenship troubles. Actually, if one looks at it, Kashmir and National Register of Citizens (NRC) in Assam lie at the two extreme ends of the ‘Idea of India’, both in territorial and metaphorical terms, where that idea is being mutilated everyday.

While the Kashmiris have been asking for their right to self-determination to be respected in accordance with the historical commitments made to them, the process of NRC has exposed the decades’ old faultlines of ethnicity and religion, wherein people living in different parts of Assam for over generations, including those born in India, are being stripped off their citizenship rights, designated as ‘foreigners’, and dragged to Foreigners Tribunal for years.

In this context, the question to be asked is—what does ‘nation’ mean, and who is a ‘citizen’ of this country? When India unconstitutionally annexed Kashmir by abrogating Article 370 of the Constitution on 5th August, 2019, and sought to impose its ‘nationhood’ on millions of Kashmiris through a total communication blackout for over two weeks, does that make all Kashmiris part of India?

Law, National, Politics, Society

By Amritananda Chakravorty

August 17, 2019

RTI Amendment: A Fundamental Blow to a Fundamental Right

Few things imperil representative democracy as gravely as irreverence for the mandate that sanctions it. ‘Transparency’ is a common phrase associated with a functioning democracy; opacity in Government functioning is accepted anathema. So how did the Right to Information (Amendment) Bill, 2019, survive scrutiny? And why does it pose a threat to democracy?

The ‘right to know’ has a chequered history in the context of India, post-independence, and is not without its share of bloodshed, even in the recent past—a bleak indicator of the potency of the disclosure of information in an inherently imbalanced power dynamic. The Supreme Court had held that citizens have a “right to know” as early as 1975, and recognized the ‘right to information’ as a fundamental right implicit in the right to freedom of speech and expression under Article 19 (1) (a).

However, a substantial push for an effective RTI regime is traced back to Devdoongri in Rajasthan and the Mazdoor Kisan Shakti Sanghatan (MKSS) in the 1990s, where peasants and landless workers in rural areas were often cheated of their complete wages, and were left remediless for lack of information to confront the administration with. Thereafter, hitherto isolated movements in various parts of the country transformed into one consolidated national movement and eventually culminated to give rise to The Right to Information Act, 2005.

Corruption, Law, National, Politics, RTI

By Gitanjali Balakrishnan

August 14, 2019

The Law as a Deterrent to Mob Lynching

In recent years, there has been an alarming spike in mob lynching incidents across the country. Most of the violence is directed against minority communities, creating a sense of insecurity and fear among them. In the backdrop of violence, hatred and bigotry, do we need to revisit our laws? Is there a need for a cohesive, clearly-defined law against lynching?

Cow vigilante violence involving mob attacks in the name of protecting cows targeting has risen since 2014. Most states in India have banned cattle slaughter. Taking the law into their own hands, these cow vigilante groups, claiming to protect cattle, have been responsible for several lynching deaths. Acts like former Union Minister of State Jayant Sinha’s garlanding of the Ramgarh lynching case accused seems to have emboldened and encouraged them.

According to a Human Rights Watch report, more than 100 cow vigilante attacks occurred in India in the last three years; “44 Indians, 36 of them Muslims, were killed and 280 injured” in these attacks, adds the report.

Crime, Features, Law, National, Politics

By Manisha Jain

August 9, 2019

Revocation of Article 370 is Legally Untenable

On August 5, 2019, the Government of India introduced a slew of measures, unilaterally and undemocratically, which, in effect, revoked the special status granted to the State of Jammu and Kashmir (J&K), by virtue of Article 370 of the Constitution. Before we understand the import of what changes have been streamrolled, it is important to understand the historical background of Article 370.

At the time of independence in 1947, the Indian Independence Act came into force, which gave an option to the 565 Indian Princely States, including the Princely State of Jammu & Kashmir ruled by Maharaja Hari Singh, to either remain independent, or join the Dominion of India or the Dominion of Pakistan. Though most Princely States signed an instrument of accession with India, the State of Jammu & Kashmir did not, since Maharaja Hari Singh wanted to remain independent.

However, just few months later, on 20^th October, 1947, Jammu & Kashmir was attacked by armed tribesmen from Pakistan, creating panic in Maharaja Hari Singh who did not have sufficient local army to quell the attack, and to protect the territory. Accordingly, he sought India’s help, and signed the instrument of accession with India on 27^th October, 1947.

Culture, Law, National, Politics, Society

By Amritananda Chakravorty

August 5, 2019

Justice Chitambaresh must Apologise or Retire forthwith

Lord Denning was the most well-known English Judge of the postwar era. His books and lectures on the law are read for their clarity of thought and simplicity of language, even today. He was appointed at a time when judges could decide their own ages of retirement. He was 83, when in 1982, he published a book titled – ‘What Next in the law?

Among the most controversial passages was the assertion that two leaders of the riots that broke out the previous summer, in the port city of Bristol, were not convicted because the defendants used their right to three pre-emptive challenges to determine the nature of the jury, which subsequently split along racial lines. “They are white and black, colored and brown,” the 83-year-old judge wrote. ”Some of them come from countries where bribery and graft are accepted and where stealing is a virtue so long as you are not found out. They no longer share the same code of morals or religious beliefs.”

Denning was denounced as a racist and despite his protestations of innocent intent, he had to choose to retire. He was given the customary honours due to his great service to the law, with Prime Minister Margaret Thatcher attending his retirement dinner. However, even today, no assessment of his many and magnificent contributions to the law is complete without recounting the manner of his exit.

Kerala, Law, National, Opinion, Politics, Religion

By Sanjay Hegde

August 5, 2019

Criminalisation of Triple Talaq: A conflict of Civil Law and Criminal Law

On 1 August, President Ram Nath Kovind gave his assent to the Triple Talaq Bill, which criminalises instant triple talaq with provisions of a jail term of up to three years. The Muslim Women (Protection of Rights on Marriage) Act, 2019, commonly referred to as the Triple Talaq Law, is effective retrospectively, from September 19, 2018. The Ministry of Law and Justice notified it in the gazette of India on January 31 so that the law comes into force with immediate effect.

After getting through the Lok Sabha, where the ruling NDA commands a brute majority, the bill was passed in the Rajya Sabha on 30 July, with 99 votes in favour and 84 against the bill. With a total strength of 240, the opposition, which still commands majority in the house of elders, failed to defeat the bill as 57 members stayed away.

Earlier, the Supreme Court of India, in Shayara Bano v. Union of India and others, had set aside the practice of talaq-e-biddat, which allowed Muslim men to divorce their wives instantaneously and irrevocably by pronouncing the word talaq (the Arabic word for divorce) thrice at the same time, on the basis that it violated the Constitution of India. The pronouncement could be oral, written, or, as in recent times, delivered by electronic means.

Law, National, Opinion, Politics, Religion, Society

By Arya Suresh

June 25, 2019

How the Emergency was declared on June 25, 1975

On 12 June 1975, Justice J.M.L. Sinha delivered the judgement declaring the election of Smt Indira Gandhi as ‘void’. Within one and a half hours, we got the news that Smt Indira Gandhi had obtained a stay order for twenty days.

The stay order was obtained through misrepresentation made on her behalf by her advocate Shri S.C. Khare. It was given in writing that as it was a question of election of the leader of the party and the office of the prime minister was involved, some time would be taken by the Congress party to elect another leader. This order was passed ex parte by Justice J.M.L. Sinha while our advocate Shri R.C. Srivastava, who was in Allahabad at that time, was not heard. Our advocate, while knowing that the stay order had been passed without a hearing, went to the learned judge’s residence and told him that the order was passed without hearing him, but the learned judge did not change his order.

Smt Indira Gandhi engaged Shri N.A. Palkhivala as her Senior Advocate. The order of Justice J.M.L. Sinha was that the stay order would continue for twenty days or till the time when the appeal was filed in the Supreme Court by Smt Indira Gandhi, whichever took place earlier.

Book Extract, Books, History, Law, National, Politics

By Rama Goyal

May 11, 2019

Dissent in the Times of Sedition

The law against Sedition or Seditious Libel has been in existence for hundreds of years and is a remnant of the monarchial rulers. In India, the law of sedition is the legacy of the colonial rule in the form of Section 124 A of the Indian Penal Code (IPC), 1860 which defines the offence of sedition as an offence when a person “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”.

In simple terms, Oxford English Dictionary defines sedition as “actions or speech which encourages rebellion against the authority of a state or ruler”. The law of sedition therefore takes within its ambit myriad forms of expressions and is often found to be infringing upon the precious freedom of speech and expression guaranteed under the Constitution.

At a time when it was necessary to defend the government from any act of rebellion or any feeling that might have led to a rebellion, the law of sedition or seditious libel was used by the English monarchy. However, it is encouraging to note that even at that time there were voices opposing the applicability of sedition law.

Law, National, Politics

By Fuzail Ayyubi