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Last week in courts by @alokpi: Liquorshop ban • Disabilities bill passed • Cauvery forever • GST wait • more...

The Supreme Court of India just finished its work for this year and had an action-packed, if shortened week, the High Courts have been at it, and the organs of Government are all functioning, grinding out laws, rules, guidelines, notifications and much more to govern/rule/harass/intimidate/thieve the populace (delete as per political persuasion). Parliament has... well... you saw how that went.



A. None for the Road: The Supreme Court on banning liquor shops on the Highways

The Supreme Court directed that all liquor shops along national and state highways be shut, liquor shops be relocated away from the highways, and even their signage be put out of sight. This was done ostensibly in the interests of putting an end to drunken driving which at claimed 7835 lives all over India in 2012.

The cause is no doubt noble. The concern, welcome. The problem though lies in what the court has done. A mere advisory from the Central Government to the State Governments has been turned into the law of the land. Policy has been made with no rigorous analysis of the costs and benefits. Will such a ban actually reduce deaths by drunken driving? Is there a well conducted study which has conclusively drawn the link between drunk driving and presence of liquor shops on highways? The judgement doesn't go into any of this.

More disconcerting perhaps are the classist notions that inform the SC judgements, even the ones in PILs; slum dwellers bad, apartment dwellers good; pollution from autos/taxis/buses bad, pollution from cars good; desi daaru bad, imported whiskey in five star hotels, good; pubs and microbreweries, presumably ok, but thekas on highways, hell no! Anuj Bhuwania's forthcoming book on the Supreme Court will cast some light on this troubling aspect of our courts' thinking.

B. Disabilities Bill passed in Parliament

Notwithstanding a session that was largely washed out, Parliament still found time to do one useful thing: pass the Rights of Persons with Disabilities Bill.

Here's a good summary of the features of the latest bill that was introduced and passed. This Bill is supposed to replace the Persons with Disabilities Act, 1995. As always, PRS Legislative Research has a helpful page with all the essentials of the Bill.

The Bill has undergone quite a few changes over time, and PRS has this helpful graphic. The earlier version of the Bill had been criticised in several sections over the manner of its passage and its content. It was then referred to a Standing Committee of Parliament which has since recommended changes in the Bill.

How much does this newly passed Bill mean for the differently-abled community? For a start, there is no one monolithic community among the differently abled and rights activists have taken different views on it. I'll post links to the best writing on this Bill as they come out in the coming weeks.

C. Forever War aka The Cauvery River Water Dispute

It could have ended the previous week itself, but the Supreme Court held that the appeals under Article 136 of the Constitution by Karnataka and Tamil Nadu against the order of the Cauvery Water Disputes Tribunal were maintainable, thereby allowing the Supreme Court to go ahead and decide the issue finally. It has settled a thorny constitutional problem that has evaded a definitive answer for 66 years now, removing the ambiguity from one of the less happily drafted parts of our constitution. Article 262 genuinely permitted two views - that the Supreme Court could not hear any case concerning an inter-state river water dispute; or that the Supreme Court was barred from only hearing inter-state river water disputes under its "original jurisdiction" (as a trial court for inter-state disputes) under Article 131. The cynic would say "gee, the Supreme Court of India expanded its jurisdiction? Whoda thunk it?", but there are good reasons why it should hear at least appeals from these tribunals as the late Ramaswami Iyer (who was however of the view that Art. 262 was an absolute bar) and Harish Salve (in his essay in this book) have argued.

The case is now posted for hearing on the 4th of January, 2017. In the meantime, the Karnataka and Tamil Nadu cricket teams will face off in the Ranji Trophy quarter-final at Vizag with the pending appeals no doubt adding much spice and drama to a contest between two of the strongest sides in Indian domestic cricket.

D. Waiting for GST

One of the other big fall-outs of demonetisation has been a further delay in the rolling out of the Goods and Services Tax - it is highly unlikely that it will be rolled out on 1 April, 2017. States have used demonetisation as evidence of a trust deficit between the Union and States, thereby hampering consensus on two big issues: the shape of the GST laws to be passed by Centre and the States, and who will collect taxes from different categories of merchants. Without consensus on these two major issues, it's impossible to roll-out the GST.

But do the Union and the States necessarily need consensus?

The decisions on the structure and rates of the GST are taken by the GST Council - composed of both the Union and State Governments, but there's no legal requirement that these decisions be taken by consensus. In fact, the Union has an effective veto over any proposal in the GST Council, and could use it to force through a decision against the wishes of half the states. This though, will only heighten mistrust and resentment in the States and will harm GST, apart from being unconstitutional. I've explained why here.

Not So Big Stuff:

A. Rajasthan reservation ruckus

Another attempt at subverting the law laid down by the Supreme Court on reservations has been struck down, this time by the Rajasthan High Court (Yes, it's in Comic Sans. No, I have no idea why). Reservations of 5% of college seats and jobs in government in favour of the Gujjar community as "special backward class" were held unconstitutional. It follows the pattern of reservations for Patels in Gujarat, Marathas in Maharashtra and Jats across North India - all of which have withered in the face of judicial scrutiny. I wrote about why this is happening, a few weeks ago.

B. Much ado about a 'do':

The Supreme Court dismissed appeals filed by two Indian Air Force servicemen who challenged the orders of the authorities directing them to shave of their beards, on the grounds that it was contrary to the regulations, rejecting their claim that they were being grown for religious reasons (both of them being Muslims).

Here's my explanation on why we shouldn't read too much into this case, and how to think about issues of religion versus public welfare. On the issue of allowing service personnel to express religious faith publicly, this piece by Sushant Singh is worth a read.

C. Thakur v Thakur heads towards its season finale

We're arriving at the end of the Season 3 of the BCCI case, and it looks this season (Thakur v Thakur) is headed for a dramatic finale featuring perjury, contempt of court and a court-monitored administration of BCCI. Orders have been reserved by the Supreme Court but something tells me that, Anurag Thakur, in his all too brief career as a first class cricketer, and who never had to face the fearsome four of the West Indies pace bowling attack would rather face them all on a Jamaica mirror-top without body armour, than this 65 year old man:

Lot's more to come no doubt when the Supreme Court delivers its order upon re-opening in the new year.

Updates on Last Week's happenings

A. Demonetisation Blues

As expected, the Supreme Court has referred the demonetisation case to a larger bench/washed its hands off the whole affair. The case is now likely to become an academic exercise as it is unlikely to be heard for a few months at least. Nine specific questions have been framed for answers by the Constitution, when it is eventually constituted (word of advice: don't hold your breath. Or hold on to your demonetised notes)

B. DU Photocopying case

Here's an excellent piece by Lawrence Liang explaining the DU Photocopying judgement of the Division Bench of the Delhi High Court and why it should be welcomed as a move that strengthens education in India.

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