Over the years politicians in India have increasingly mixed religion and politics despite the authors of the Constitution seeking to separate the two elements.

In fact, under the Constitution, secularism has been laid down as the cardinal principle of governance. However on the ground politicians see the mix of religion and politics as a potent vote catching mechanism.

In current scenario, as a result of competing sectarian politics there are discussions of parties adopting a soft Hinduism line rather than “ Hindutva”, a term referring to fanatic Hinduism, particularly in light of notorious cow vigilante groups gaining prominence.

The Supreme Court has on several occasions attempted to differentiate between the terms ‘Hindu’, ‘Hinduism’ and ‘Hindutva’ . The court has tried to define it in different contexts — ranging from pure religious point of view to use of religion in elections.

In all its judgements the SC has however never identified Hindutva as the militant or fanatic version of Hinduism.
Hindu Religion Not Bound By Narrow Definitions 

Nearly half a century ago, a five-judge constitution bench comprising Chief Justice P B Gajendragadkar, K N Wanchoo, M Hidayatullah, V Ramaswami and P Satyanarayanaraju in ‘Sastri Yagnapurushadji’ case [1966 SCR (3) 242] had sought to provide the historical and etymological genesis of the word ‘Hindu’.

In the judgment for the bench, Justice Gajendragadkar stated that the genesis of the word ‘Hindu’ has been controversial, but it is generally accepted that the word comes from the river Sindhu, or Indus that flows via Punjab.

The judgement further noted that it is difficult to define the Hindu religion or “even adequately describe it”. The court pointed out that in the Hindu religion, there was no one prophet, or one god or even one philosophical concept. The religion does not fit into “narrow traditional features” of any religion or creed, and it may be described as “a way of life and nothing more,”  the court said.

In 1966 the SC attempted to define ‘Hindu’ in its judgement in ‘Commissioner Wealth Tax, Madras vs Late R Sridharan’ [1976 (Sup) SCR 478], stating that as Hinduism “embraces so many diverse forms of beliefs, faiths, practices and worships” that it is hard to define the term ‘Hindu’ with precision.
In recent years, reacting to perceived appeasement of a certain community by some politicians, other sections of politicians have launched ‘save Hinduism’ election campaigns, which seem against the Constitution’s ‘secularism’ spirit.
Do ‘Hindutva’ Speeches Violate the Representation of the People Act?

The Representation of the People Act has in fact banned candidates from seeking votes on the basis of religion.

The erstwhile chief of Shiv Sena  Bal Thackeray had made a series of ‘Hinduism’ and ‘Hindutva’ themed speeches, while campaigning in 1987, which was debated in the SC.

The SC considered the question: whether the use of ‘Hinduism’ and ‘Hindutva’ in an election campaign was against the RP Act?

Hindutva Term Not Necessarily Hostile To Other Religions

A bench led by Justice J S Verma in Ramesh Yeshwant Prabhoo case [1996 SCC (1) 130] had stated that the words ‘Hinduism’ or ‘Hindutva’ may not be “understood and construed narrowly,” in relation to strict Hindu religious practices outside of “the culture and ethos of the people of India”, relating to the “way of life of the Indian people.”

It also said that considering the terms to indicate “hostility, enmity or intolerance” towards other faiths or to profess communalism, is the result of “an improper appreciation and perception” of the true meaning of these terms.

The judge said that the misuse of the expressions to promote communalism will not change the “true meaning” of these terms, adding that such misuse of the terms must “be checked .“

The SC concluded by stating that it was  “a fallacy and an error of law” to assume that references to Hindutva or Hinduism in a speech makes it a speech based on the Hindu religion or that it indicates a hostile attitude to other religions.

Considering these rulings, the self-appointed guardians of Hinduism need to make a conscious attempt to assimilate and reflect all the cultures and customs in India .

India has laid the foundation for taxing the income of foreign digital service companies to boost revenue and join the global move to end the practice of base erosion and profit-shifting typically used by multinational companies.

The 2018 Budget has proposed a new rule that indicates that a MNC can have a business connection in India despite not having a physical presence in the country.
Move To Benefit Local Digital Enterprises

Tax officials have said that the rule targets digital companies like Google and Facebook which are based overseas but provide digital services in India and also app developers having users in India,.

The measure intends to encourage Indian digital enterprises and provide a level playing field for them, apart from pushing foreign entities to set up shop here.

The measure comes in wake of the equalisation levy, called the Google tax ,being introduced in 2016, covering online advertising payments made to foreign entities with a permanent establishment in India.

Under this rule, such companies are required to pay 6% of the gross payments to the government and receive an equivalent deduction at the time of computing income for tax purposes.

When a company has a permanent establishment in India, tax is paid on its income, just as local companies do.

Companies Must Pay Tax Everywhere They Make Profit

A tax expert noted that companies selling digital goods or services having a taxable presence in India can be viewed as an alternative to the equalisation levy.

The new measure uses a principle highlighted by the OECD that every government possess the right to collect tax that is due on any value created in the economy and that companies are required to pay necessary tax in every market wherein they make a profit.

Foreign digital service companies which are based in countries having applicable tax treaties with India will not be affected, however India may have to renegotiate the tax pacts to include the proposed rule.

The Bombay High Court dismissed a PIL challenging the remission of actor Sanjay Dutt’s sentence in the 1993 serial bomb blasts case stating that it has not found any violations by the state.

Dutt was allowed to leave the Yerwada prison in Pune last year eight months before the completion of his five-year sentence , for “exemplary conduct displayed” during his time in the jail.

The PIL had also questioned the “frequent parole and furlough” leaves granted to him.

State Has Proven Its Claims

A bench comprising Justices S C Dharamadhikari and Bharati Dangre noted that the state government had successfully backed its claims of impartiality by offering valid documents from the Home department.

In its order, the court stated that there was “nothing contrary in the records” given by the state Home department and in the state’s explanation. It has also clarified that no “violations or abuse of discretionary powers”  were found .

Develop Scheme For Deciding Parole And Furlough Applications

The court has however directed the state to devise a scheme by which all applications by convicts for parole and furlough are henceforth decided upon expeditiously and transparently.

The bench stated there must be no impression of “favours” while allowing parole or furlough.

According to the PIL, even though there were several other inmates who had exemplary conduct, only Dutt was favoured by the prison authorities for the relaxation.

The state government had denied the charge.

In a previous hearing, the state provided a detailed chart containing the dates during which Dutt was out of jail on parole and furlough, as well as the reasons for the same, showing that due procedure had been followed.

The bench also highlighted that none of the inmates of the Yerwada prison had filed any complaints or allegations that their rights being breached or that Dutt had been granted undue favours.

The judges however cautioned against using PILs to target an individual. The bench noted that a Public Interest litigation must not be used as “a public(ity) interest litigation.”

Dutt was found guilty of illegal possession and destruction of an AK-56 rifle in 1993 serial blasts case.

As an undertrial , he spent just over a year and four months in jail and as a convict around two-and-a-half years between June 2013 and February 2016. In this period, he remained out of jail for around five months on parole and furlough.

The Bombay High Court has granted relief to a man who was denied a job in the Central Industrial Security Force (CISF) for having a tattoo on his arm.

The court in its ruling said that the tattoo cannot be considered an impediment in his appointment, and has asked the CISF to review his claim for employment as it had been acknowledged that he was eligible for the job in every way but for his tattoo.

Job Advertisement Failed To Specify Condition

The petitioner Shridhar Mahadeo Pakhare was found medically unfit for a constable/driver in the CISF due to a tattoo on his right arm.

According to Pakhare, the job advertisement had not stated that the candidate would not be eligible for recruitment to the CISF if the candidate had a permanent tattoo. Pakhare also pointed out that the tattoo was of a religious symbol which would not interfere with the duties assigned.

He however has informed the court that he has been making efforts to remove the tattoo using laser treatment, and that over 90 per cent of it was gone now. He added that he was continuing efforts to remove it completely.

Religious Sentiments Must Be Given Weightage

A bench of R M Borde and R G Ketkar noted that “religious sentiments of a citizen” needs to be given “due weightage” while recruitment adding that exceptions to the rule are made for higher posts.

The bench stated that there was “no reason” for the hold the petitioner “ineligible,” observing  that nearly 90 percent of the tattoo was now evidently removed . It said that since the petitioner was eligible for the employment in all other ways, his application must be considered.

Requirement A Discriminatory Practice

In his plea, Pakhare has said that the reason given by the Medical Board was “unreasonable” and interferes with “his religious sentiments”.

He has also observed that some selected exception was given in in the Armed Forces regarding tattoos that depict religious symbols or figures /names and said that similar exceptions should be extended by the CISF too as both are “disciplined forces.”

Pakhare has also alleged discriminatory practices by CISF as an advertisement for the post of a sub-inspector in 2017 allowed such tattoos, especially if they were religious in nature.

The court stated that simply because the post applied for by the petition was subordinate to that of the sub-inspector, “different parameters” regarding medical fitness cannot be applied. The bench has therefore said that it wasn’t “permissible” for the employer to treat differently the various classes of employees and apply “different parameters”  .

In its order , the bench has directed the government to considered the petitioner’s claim for employment and has said that the medical opinion which found the petitioner ineligible due to tattoo mark should not be “construed as an impediment” .

The Chief Justice of India (CJI) Dipak Misra has created a new system with respect to allocation of cases, a move that addresses one of the issues raised by the four senior-most Supreme Court judges in their controversial press conference last month .

The new system will come into effect from February 5, and under it, cases will be allocated based on the subject matter they deal with, as per a posting on the official website of the Supreme Court.

CJI To Hear PILs

In the new roster system, the CJI will take up all special leave petitions (SLPs), as well as all matters that concern public interest, social justice, elections, arbitration, and criminal matters.

These areas typically form the bulk of the matters heard by the apex court. The remaining judges will hear matters related to

• labour disputes
• taxation matters
• compensation matters
• consumer protection matters
• maritime law matters
• mortgage matters
• personal law matters
• family law matters
• land acquisition matters
• service matters
• company matters etc

Change Triggered By Judges’  Concerns 

On January  12 Justices J. Chelameswar,  Ranjan Gogoi , Madan B. Lokur and Kurian Joseph  called a press conference in an unprecedented move where they alleged that the chief justice was failing to follow established norms in regards to allocation of cases among the judges of the apex court.

This they argued was likely to “adversely” affect the justice delivery system.

Justice Gogoi is next in line to become the CJI while Chelameswar  Joseph and Lokur will be retiring this year.

The judges went public with their grievances after submitting a seven-page letter of protest to the chief justice that morning . Justice Chelameswar said that the judges had decided to bring the issues to the public driven by the fear that a failure to communicate their concerns may result in jeopardizing the institution of the Supreme Court and thereby the democracy.

Cases Allocated ‘Selectively’

The judges’ letter had questioned the irregular procedures followed by the CJI for assigning cases.

The letter noted that often cases having “far-reaching consequences for the nation and the institution” were being assigned “selectively” to the preferred benches without “any rational basis” for such assignment. .

The case involving the controversial 2014 death of the CBI judge B.H. Loya who was handling in the Sohrabuddin Sheikh encounter case was cited as being one of them.  The case had been initially listed before a bench headed by Justice Arun Mishra but it has now been taken over by a bench headed by the CJI.

Among the issues raised by the judges  the delay in finalizing the memorandum of procedure (MOP) was also included. This document is created by the Union government and then given to the top court. It covers the procedure of appointment of judges to the higher judiciary.

The Madras High Court  has asked the government to expeditiously finish the inquiry into custodial deaths and release compensation to the next of kin within four months. The HC passed the direction while hearing a suo moto plea initiated by it on Supreme Court direction.

In September 2017, the Supreme Court has asked all high courts to initiate such suo moto proceedings in order to identify and compensate the victims of custodial deaths.

The suo moto has directed the state government to ascertain the next of kin of the prisoners who died between 2012 to 2015 and whose death thereafter was classified as unnatural by the National Crime Records Bureau (NCRB), for necessary compensation.

Report Submitted By Principal Secretary

In this context, the principal secretary to the home department submitted a report to a bench comprising Chief Justice Indira Banerjee and Justice Abdul Quddhose .

The report stated that around 157 cases of custodial deaths had been reported in the state during 2012-16. Out of these 134 have been concluded using judicial magistrate reports while in 23 cases, inquiry is still ongoing.

The bench noting the submission directed the pending inquiry to be completed expeditiously and stated that if the cases are entitled to compensation, the compensation must be released at the earliest not later than four months.

The bench has posted the matter to June 8, for submission of a status report.

The Indian government is reportedly asking the Supreme Court to apply a rare doctrine to the country’s $11 billion tobacco industry which will affect its legal right to trade, as a part of its efforts to deter tobacco companies from challenging tough new regulations.

Making the request for the first time, the Central government has asked in its petition that tobacco be classified as “res extra commercium”, a Latin phrase that means “outside commerce ,citing court filing by the Health Ministry on Jan. 8.

If the government’s application is successful, then there would be far reaching consequences for the tobacco industry. It will eliminate the industry’s legal standing to trade and give the authorities more leeway to impose restrictions.

Tobacco Worse than Alcohol

An earlier application of the doctrine by the Supreme Court to alcohol in the 1970s allowed at least two Indian states to ban it completely and has enabled courts to take a stricter stance on liquor regulations. Constitutional law experts believe that similar things can happen with tobacco if a similar ruling was made.

Government counsel R. Balasubramanian, appearing on behalf of the Ministry of Health in the case said that the effects of tobacco are “much more than even alcohol,” adding that the designation would be a “fillip to the drive against tobacco.”

Balasubramanian has clarified that the government is not considering banning tobacco and the doctrine is only being used to limit the industry’s legal rights.

Government Seeking To Discourage Consumption 

The government has been taking several measures in recent years to curb tobacco consumption which kills over 900,000 person in India each year. The measures include raising tobacco taxes, pushing smoking cessation campaigns and enacting laws that mandate covering most of the package in health warnings.

But last month a Karnataka court set aside the labeling rules after the tobacco industry successfully showed that the rules were “unreasonable” and also were in violation of its “right to trade”.

The government has appealed the ruling in the Supreme Court which has put the Karnataka court order on hold. The case is expected to be heard on March 12.

In its filing, the government has added the “res extra commercium” measure as it wants to stop the industry from filing similar cases again, Balasubramanian said. The government has stated that it must have the power “to regulate business and to mitigate evils” in order to safeguard public health.

Senior lawyer Sajan Poovayya, representing top Indian cigarette makers  ITC Ltd and Godfrey Phillips, has argued that the industry’s legal rights would be highly limited if the court applies the doctrine to tobacco.

Poovayya has said that he would fight the government’s argument “tooth and nail” and show to the court that eliminating the industry’s right to trade would end up imperilling millions of Indian farmers who depend on tobacco for their living. Currently around 45.7 million people in India depend on tobacco for their living according to industry estimates.

He also noted that there was a “need to look at the interest of those” already in the sector, adding that tobacco is “not destructive to health”.

A Global Precedent If Successful

The labeling rules for tobacco, which requires around 85 percent of a cigarette pack’s surface be covered with health warnings, has been a bone of contention between the government and the tobacco industry since its enforcement in 2016.

The industry has shut down factories across the country in protest for a brief while and filed several legal cases challenging the rules.

According to the Union Health Ministry the stringent health warnings on packages helps reduce consumption of tobacco by educating people on its ill-effects. A government survey conducted last year found that 62 percent of cigarette smokers have thought of quitting as a result of the warning labels on the packets.

Mary Assunta, a long-time tobacco control advocate and a senior policy advisor at the Southeast Asia Tobacco Control Alliance, has said she has never known of a country applying the “res extra commercium” doctrine to tobacco, but has hoped India would set a precedent.

Pratibha Jain, a partner at law firm Nishith Desai Associates and a specialist in Indian constitutional law stated that applying the doctrine would allow an outright ban on tobacco sales if a state so wished.

It would give the government complete autonomy to ban trading on tobacco and provide “constitutional cover” from future litigation, she said.

India would have been a different country had those responsible for the 1984 anti-Sikh riots been punished promptly, the Delhi High Court said while issuing a directive to the police to act against those involved in the recent attacks on properties of lawyers.

A bench comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar noted that the lack of punishment in “such “ cases indicates the “beginning of the rot” in the system.

The bench additionally expressed concern regarding the safety of the common man if senior lawyers were being attacked. It also rapped the police’s response time after being informed that the police was in the process of lodging FIRs in regards to the arson attacks which had taken place on January 4, 8 and 22.

The court has directed the police to expedite the forensic analysis of all the evidence collected from the site of the attacks.

Arson Attacks On Lawyers’ Properties And Cars

The lawyers targeted in the arson attacks are those who have been representing a woman lawyer who has alleged that she was assaulted by police officers and dragged out of her house in connection with a stalking case lodged against her over a property dispute.

On January 9 and 22, the properties and cars of senior lawyers Vikas Pahwa and Kirti Uppal, also the president of the Delhi High Court Bar Association (DHCBA), were subjected to arson attacks using inflammable substances.

Uppal’s car a Hyundai Tucson which had been parked outside his house in Nizamuddin West area in Delhi was torched by unknown miscreants.

Earlier on January 4, two cars — a Maruti Swift and a Honda Amaze – that had been parked near the east Delhi residence of advocate Ravi Sharma were set on fire by unidentified persons.

After hearing a plea for the investigation involving the incidents to be moved to a court-monitored SIT probe, the bench has posted it later this week wherein the agency is expected submit an order appointing a special investigator for probing the case.

Even before the plea seeking a SIT probe was mentioned, the bench had on its own raised the issue of the attacks as a PIL and asked for an action taken report from the police.

Another Bench raps Delhi Police For Poor Progress
Similarly another bench comprising Justices Siddharth Mridul and Deepa Sharma also mentioned that the “inevitability of punishment” was a deterrent for crime.

The bench was hearing the petition filed by the woman advocate regarding the alleged assault on her last December by some police officers.

The court proceedings were disrupted in the first half of the day after some lawyers beat up an unknown individual suspecting him to be the person torching the vehicles of the senior advocates.

Justice Mridul condemned the violence, noting that the court cannot be turned “into an ‘akhada’ (wrestling ground).”

The bench also sharply censured the Delhi Police for the lack of progress of the investigation into the arson attacks, and expressed alarm that the attacks were “so easy” to do “in the city of Delhi.”

On behalf of the police, standing counsel Rahul Mehra and advocate Tushar Sannu, assured both the benches that all necessary action would be taken immediately. They have also assured protection to all those persons connected with the case facing threat to their safety.