Delhi’s pollution levels are alarming. But the government’s knee-jerk measures to combat it are bound to fail in the absence of a strong public transport network and strict implementation of existing green laws... and much more

1. January 15, 2016 `100
www.indialegalonline.com
YearEnd Special
STORIES THAT COUNT
Inderjit Badhwar
Dilip Bobb
Kalyani Shankar
Ajith Pillai
Ramesh Menon
Shobha John
Dinesh Sharma
Abhay Vaidya
Vipin Pubby
RK Misra
www indialegalonline com
January 15, 2016 ``100
www.indialegalonline.com
STSTSTTTOROROORORORIEEIEIEIEIESSS THTHTHTHTHATATATATAT CCCCCOUOUOUOUOUNTNTNTNTNT
NDIA EGALEL
June 15, 2015 `100
www.indialegalonline.com
NI
NJAC:
Stalemate
over judges’
appointments
persists 10
KEJRIWALVSJUNG:
Stand-offsimmers i
ARUNASHANBAUG:
Justicederailed28 40
MODI:
MilestoGo
PACHAURI
CASE: ICC
guilty 48
INDIAN
RAILWAYS:
`29,236.77
crore scam 44
ALSO
Thetrumped-upeuphoriacontinuesbutmuch
remainstobedonetoboostgrowthanddevelopment22
NDIA EGALEL
April 15, 2015 `100
www.indialegalonline.com
NIEXCLUSIVE
Inascathingexposeofthe
telecomczars,thePMOand
investigators,former
ministerARajatellshisside
oftheeventsthatledtohis
jailingandongoingtrial
YES!
IAMTHE
SPECTRUM
RAJA
A EGAE
HASHIMPURA:Nobody
massacred42innocents
JATRESERVATIONS:
SupremeCourtstrikesagain34 10 16
66A:Off
withitshead!
ALS0
54
26
54
MISSING COMPANIES:
Will the law catch up?
MASARAT RELEASE:
Fueling separatism? 40
NDIA EGALEL STORIES THAT COUNT
March 31, 2015 `100
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TheGatheringStorm
WilyGodmen:Atrailofmurders,rapes,
fraudsandahypnotizingspellonfollowers36 40
Whatconstitutesacorporatefavor?
ThecaseofthesackedHTstaffer
ALS0
5054
Ironically,evenastheworldcheersIndiansocialprogress,thegovernment
appearsregressingtowardsrepression
54
MP Governor:
Raj Bhawan’s
lure 5
Why corporates lap
up well-connected
Whatpricewitnessprotection?
AjithPillaitalkstolawyers,judges,cops 16
SHOULD
WE
SHOOTTHE
MESSENGERS?
NDIA EGALEL
August 15, 2015 `100
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i
ShantanuGuhaRayinterviews
MalegaonprosecutorRohiniSalian
RoyaltusslesoverKingSolomon’smines:
SreePadmanabha, Mysoretreasuretroves 60 34
ALSO
YAKUB
Ramesh
Menon tells
you how to
make an
online will
and rest in
peace 63
DEFAMATION LAW:
Strange bedfellows 28
Pachauri’s
ignoble
exit from
TERI
38
NDIA EGALEL STORIES THAT COUNT
February 28, 2015 `100
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NI
Whoscripted
Modi’sDelhiDisaster?
INVESTIGATION HowCBIunderformerboss
RanjitSinhabecameanewemploymentexchange
ALS0
WillModiaddresstheimpatient
electorateandbringhisgrowth
agendaontheright track?
BUDGET 2015
26
Hurdlesinthe
civilaviation
sector
MAKE IN INDIA
36
24
NDIA EGALEL
June 30, 2015 `100
www.indialegalonline.com
NI
DILIPBOBBprofilesthe
intrepidreporterwho
exposedFIFAscam
JAYALALITHAA:
Surprisinglegal
challenge
ORDINANCERAJ:But
whywasSC/ST
allowedtolapse?76 28 66
Thetrumped-upeuphoriacontinuesbutmuch
remainstobedonetoboostgrowthanddevelopment22
NDIA EEEEEEEEEEEEEEEEGGGGGGGGGGGGGALEN
ThetTheteetthetTheettrumprumperruummmpeerruummmppeed ud upp-updd-upppddd uupppppeueupeuphhoeeuupphoeuphohouphp riiacriacaccia ooontintinnontinont no nuuesssbbuesbuesues utmutmmmuuututmmmumuuccchhcchchcch
reeemmmaaiireeememmaireemmmaaiinnssttoonnsnsttoosttobbeedededbedbedonetononneettnettoobobbobooooobboooobbboostgrtgrsstggrg oowthwowthwtowthhandaanddddandda dddanndddddeevveeeloooeveloevveeevelooeveloe oppmmenteenntppmmentmeeenntppmmmeentenpp 22222
Dangerous
MEALSFoodproductcompanieshave
misledconsumerslongenoughand
cannomorecontinuetheirslewof
misinformation. 20
VYAPAM
HORROR:
32 dead
and still
counting 50
CENSORSHIP:
Thumbs up
for Ambedkar-
Periyar Study
Group 36
JUSTICE
DHINGRA:
Man
behind
Vadra land
probe 46
SPECIAL:
Kashmir’s
teleterrorism 44
Exclusivedetailsandanalysisof
India’shottestjudicialcontroversy12
YourLordships,
Webegtodiffer
NDIA EGALEL
November 15, 2015 `100
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NI
RAMESHMENON
Liberatedsexworkersturnintoparalegalvolunteers
STORIES THAT COUNT
42
NJAC
NNNDDDDIAN
Exclus
India’shot
Your
Web
SHOBHA
JOHN:
New
guidelines
to make
58
PAPIA
SAMAJDAR:
bio-medical
waste 70
KALYANI
SHANKAR:
Santhara—religion
the land 48
VIPIN
PUBBY:
largesse to
30
MEENA
MENON:
Will
Maharashtra
continue
with dance
bar ban? 38
Special column
NARENDRA
CHAPALGAONKER
20
Justice
MadanBLokur
Justice
AdarshKGoel
Justice
JChelameswar
Justice
KurianJoseph
Justice
JagdishSKhehar
NDIA EGALEL
July 15, 2015 `100
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NI
WHOISAFRAIDOFTHEEMERGENCY?LKAdvani’sfearssparkoffanationaldebate
FormerlawministerHRBhardwaj,SeshadriChari,JusticeMukulMudgal,RajeevDhawanspeakout
THENAME
BOMBERItisevidentthatDelhidoesnothavea
solidcaseagainstModi,whohascertainly
shakenupthepoliticalestablishment,
forcingeveryonetoduckforcover 22
ONE RANK
ONE
PENSION:
Soldier
writes to the
chief justice
of India 48
NJAC:
Festering
controversy
10
INDIRA JAISING
unplugged: 40
BANK
LIQUIDITY:
Where’s
the money
honey?
44
NEW TARGETS:
Successful Dalits
57
28
Lalit Modi

4. LETTER FROM THE EDITOR
impacts the day-to-day functioning of modern India,
the creature of a long-drawn out, hotly-debated consti-
tutional exercise.
Obviously, we focused, keeping in mind the need to
uphold the highest standards of writing on the courts,
the Supreme Court and activities of bar associations
and councils, ensuring that we missed no develop-
ments. Covering stories involving judicial accountabi-
lity remained a primary focus. Most of our stories are
written by big name journalists from India and abroad.
Our special task is to brief them in detail so
that they do not miss out on spe-
cial legal angles or the fun-
damental legal base of
the stories we
commission.
RITING the year-end edit is often a lone-
ly and onerous task. This is largely
because, through the year, magazines
have their ups and downs in terms of the
quality, merit, credibility, display and
power of the stories they run. So, finding the best from
among them to feature in a special edition requires
exceptional diligence and institutional memory. And
the editors of India Legal have been up to their necks in
the process of choosing, and dropping, and adding.
The final result in on the cover. Actually the task
was both easy as well as excruciatingly difficult. Easy,
because most of the stories from which we chose had
quality and focus. Difficult, because notwithstanding
the editorial merit of the story under consideration, we
were faced with the task of determining how accurately
the article reflected India Legal’s USP.
There was little doubt in any reader’s mind as soon
as our magazine hit the stands with its first edition,
that the market was witnessing a genuinely new prod-
uct that stood out of the clutter. The name itself sug-
gested a whiff of change. The moment you picked it up
and began leafing through it, the first impression you
received was that contrary to what it sounded like,
India legal was not a technical legal manual or a
newsstand version of Manupatra. It was, in
fact, a hard core newsy, current affairs maga-
zine containing investigations and contro-
versies with a solid legal angle that would
be of special interest not only to lawyers
and judges—the core audience—but also
to general readers, MPs, politicians, students,
diplomats and think tanks trying to make sense of
how the rule of law, natural justice, judicial precedents,
case histories, judicial activism and accountability
W
A FRESH AVATAR
INDERJIT BADHWAR
Special
Issue
4 January 15, 2016

5. In case they fail to meet this requirement, India
Legal’s editorial board approaches some of the nation’s
senior most lawyers and retired judges to provide us
guidance. It is small wonder then—thanks to the
magazine’s growing credibility with this difficult-to-
please but powerful community—that we were able to
carry interviews with the Union Law Minister and the
Chief Justice of India on the cover of the same issue of
the magazine.
A
s we have spread our wings and our reach with
the support of a portal run by a special team
and are bringing more and more legal stories to
our sister concern—APN-TV—and are planning to add
an additional channel—India Legal TV—to our group,
we have expanded our reporting and editorial staff to
include law students and trained lawyers who will
report not only from the capital but from every major
city and region in India.
Ultimately, our magazine is not for, of, and by
lawyers—even though this community is now increas-
ingly involved in its content creation. It is about justice,
exposing corruption and charlatans, taking a
critical stance on legal matters of national and consti-
tutional importance. It was in this spirit that we ran a
lead editorial on the Supreme Court’s prolix
ruling on the National Judicial
Appointments Commission,
titled “Your Lordships, We
Beg To Differ.”
Actually, if
you look at
any major story that has caught national attention in
the recent past or currently, it stems either from the
courts and judiciary, or contains a major legal angle.
Let’s name a few—the NJAC debate, the Nirbhaya story
which led to the passing of the Juvenile Justice Act, the
CBI’s raid on Delhi Chief Minister Arvind Kejriwal’s
office and the attacks and counter attacks on the cor-
ruption within the DDCA, stringent rape laws, the vis-
itors’ list in the former CBI chief’s diary, the still-con-
tinuing attempts to implicate Prime Minister Modi and
his number two Amit Shah in the 2002 Gujarat riots,
the brouhaha over Netaji Bose’s files, Yakub Memon’s
hanging and the recrudescence of the death penalty
debate, the Supreme Court’s activism as well as initial
steps taken by the Kejriwal government to check diesel
pollution levels and the Nestle noodles debate.
These are the stories the nation is talking about.
These are the stories we covered. Reading them again
they are definitely not old wine in new bottles. They are
new wines in new bottles. Let me cite an example from
this issue. Veteran Kalyani Shankar has penned an
analysis of why it is always premature to write off the
Nehru-Gandhi dynasty no matter how politically down
and out it may be. Where we value-add to this story is
a box item on scams and intrigues that Congress’ First
Family and the party have weathered. Here are some of
them: In 1966 Ram Manohar Lohia charged in
Parliament that Indira Gandhi had accepted an expen-
sive mink coat from shipping magnate Dharam Teja. In
1971, scandal rocked Mrs Gandhi again when it was
alleged that the SBI’s chief cashier was instructed to
hand over `60 lakhs to a “messenger” of Mrs Gandhi,
Sorab Nagarwala. There were other scams—Maruti
favouritism (1977), Bofors (1987), 2G Spectrum
(2008), Vadra-DLF controversy (2012), chopper
controversy (2013)… and the ongoing National
Herald case.
India Legal has been on top of all the recent
newsbreaks covering them from the very spe-
cial perspective of a new avatar in journalism.
India Legal is about justice, exposing
corruption and charlatans, taking a
critical stance on legal matters of
national and constitutional importance.
of
editor@indialegalonline.com
INDIA LEGAL January 15, 2016 5

6. JANUARY15,2016
Sunset of a Dynasty?
Commentators are more than ready to write off the Congress and, by extension, the
Gandhi family, given their diminishing numbers in the Lok Sabha, but that may not
hold true today. KALYANI SHANKAR
The Netaji Dilemma
Conspiracy theories aside, the center’s justification of not declassifying the Netaji files
as it would hurt India’s relationship with foreign powers is only an excuse. SUJIT BHAR
32
Choking Capital
Delhi’s pollution levels are alarming. But the government’s knee-jerk measures to
combat it are bound to fail in the absence of a strong public transport network and
strict implementation of existing green laws. RAMESH MENON
14
No Retribution for 2002
The clean chits to Narendra Modi and Amit Shah by the courts in the Gujarat riot
and encounter killing cases lend renewed strength to arguments made by both the
BJP leaders. RK MISRA
28
SUPREME COURT
20
POLITICS
INVESTIGATION
HISTORY
Juvenile Justice?
It gathered momentum too late in the day but was passed by the Rajya Sabha. A quick
overview of the debate surrounding the new juvenile justice law. TEAM INDIA LEGAL
ACTS & BILLS
36
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Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Associate Editors
Meha Mathur, Sucheta Dasgupta
Deputy Editor
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Art Director
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Technical Executive (Social Media)
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Technical Executive
Anubhav Tyagi
6 January 15, 2016

7. The Punjab and Haryana High Court has on its
payrolls a large battery of law officers, often
recruited on questionable grounds.
VIPIN PUBBY — November 15
Trust Deficit
Yakub Memon’s sentence sparks
debate on whether intelligence
agencies should be lenient on those surren-
dering to them. Similar is the case of witness-
es who come forward to report crimes and
end up paying with their lives.
AJITH PILLAI — August 15
64It’s My Life
A landmark survey has shown that
Muslim women want the triple talaq to be
banned. The community is indeed being
swept by winds of change.
AJITH PILLAI — September 15
David and
Goliath
Neither Free,
nor Fair
The apex court struck down an amendment
validating the National Judicial Appointments
Commission Act passed by parliament. A
letter from the Editor reads between the lines
of this judgment. — November 15
40
Stuck in a
Quandary
Even though the courts are massively overbur-
dened, the judiciary is being increasingly
called upon to rule on matters which defy
precedent and may not find parallels in exist-
ing case laws. A letter from the Editor lists its
various dilemmas. — June 30
70Money down
the Drain
Instant Health
Debacle
For long India’s staple snack, Nestle’s Maggi
Noodles faces ouster as high doses of lead
and MSG have been discovered in state after
state. DINESH C SHARMA — June 30
THE BEST OF INDIA LEGAL 2015
Cover Design: ANTHONY LAWRENCE
54
74Silver Lining
at Last
Sex workers in parts of Karnataka and
Telangana feel empowered, thanks to their
new role as paralegal workers.
RAMESH MENON — November 15
96Whose Right is
Paramount?
In the debate about child pornography,
the issue of amateur sex videos preying
on innocent girls has been lost. Why
aren’t ISPs being charged for this?
ABHAY VAIDYA — September 15
86Faith Matters
The Jain custom of Santhara—voluntary
end to one’s life through fasting—brings
up the question of whether or not religion
is more important than the law of the land.
KALYANI SHANKAR — November 15
45
Home Truths
from the Church
Sexual misdemeanors by the clergy are noth-
ing new. But for the first time, a Kerala nun is
paid `12 lakh to remain mum about her
sexual abuse. TK DEVASIA — May 15
80
New Lease of Life
By allowing a 14-year-old girl to abort her
fetus in the 24th week despite the MTP Act
prohibiting it, the apex court has shown its
humane side. SHOBHA JOHN — August 31
92
60
It’s been a clash of egos and authority as Delhi CM Arvind Kejriwal and L-G Najeeb Jung slug it
out. At the heart of the ugly stand-off is the question: Who rules Delhi?
DILIP BOBB — June 15
48
INDIA LEGAL January 15, 2016 7
“We tackle
complex issues”
Judge Ronny Abraham, president, ICJ, says
that India is finding the best ways to handle
increasing commercial disputes.
NEETA KOLHATKAR — December 31
90

8. “The ministry of
defense is a bad
organization.
Accountability within
the ministry is zero…”
—General VP Malik, former
chief of Army Staff, on
whether Indian defense
forces are technologically
equipped to fight a war,
in The Times of India
QUOTE-UNQUOTE
“There are three Ds through
which parliament functions.
These are debate, dissent and
decision.”
—President Pranab Mukherjee, while
delivering the keynote address in memory
of Jawaharlal Nehru, at Calcutta
University Centenary Hall, in Kolkata
“Why am I not in politics?
Because I think it would have
killed me in a couple of
years... you should cultivate
a sense of insensitivity to be
in politics.”
—Azim Premji, IT czar, at
the Indian Institute of Management-
Bangalore’s first global alumni
conclave and leadership summit
“If Jaitleyji were let off without
investigations on basis of
his press denial, then shud all
coal n 2G accused also be
similarly let off?”
—Arvind Kejriwal, Delhi Chief
Minister, hitting out at Finance Minister
Arun Jaitley for financial irregularities in
the DDCA, on Twitter
“You never learn acting
till you die...it’s not
multiples and formulae.”
—Shah Rukh Khan, replying
to a follower as to when will
Khan learn acting, on Twitter
“The current Juvenile
Justice Act never
envisaged that the
society will have to
deal with such a brutal
rapist one day. This
case has beaten all.”
—Kiran Bedi, social activist
and BJP leader, on Twitter
“My daughter’s name was
Jyoti Singh… I am taking her
name today and so should all
of you… I feel angry,
not ashamed.”
—Asha Singh, Mother of 23-year-
old paramedical student, gangraped
on December 16, 2012, in
The Indian Express
8 January 15, 2016
Special
Issue

9. Justice has nothing to do with what goes on in the court
room; justice is what comes out of the court room.
Clarence Darrow
VERDICT
Aruna
INDIA LEGAL January 15, 2016 9

10. The Apex Court
refused to imme-
diately stay the Delhi
High Court’s recent
verdict that put an
end to the practice of
reserving 60 per cent
seats for children of
Group A government
officers by the
Sanskriti School in
New Delhi. Observing that
it needed to hear the matter
before arriving at a conclu-
sion, the Apex Court fixed
the next hearing on
January 4, 2016.
Arguing for the school,
Attorney General Mukul
Rohatgi wanted the Apex
Court to stay the High
Court order on the ground
that it was wrong on the
part of the Court to take
suo motu cognizance of
the matter and issue a
judgment without hearing
arguments from the other
side. He argued that the
High Court’s judgment
would have a bearing on
the character of the school
set up by the center and
considered a top school
in Delhi.
Senior advocate KK
Venugopal also pleaded
with the Apex Court to
allow the admission
process for the 2016-17
academic session.
SUPREME COURT
Observing that the state had no busi-
ness to interfere with the appoint-
ment of priests in temples, the Apex
Court upheld a plea by Adi Saiva
Sivachariyagal Nala Sangam, which
objected to an order of the Tamil Nadu
government. The state government had
issued an order in 2006 that it would
decide on the appointment of priests to
temples in the state.
The Apex Court observed that priests
could be appointed according to rules
mandated by the scriptures and that the
tradition was acceptable so long as it
did not violate the principle of non-
discrimination based on caste, creed or
color, enshrined in the constitution.
The Court made some significant
observations on Hinduism in the
process. It said that the foundations of
Hinduism lay in “the collective wisdom
and inspiration of centuries”. Hinduism
doesn’t have a single founder, a single
scripture or a single set of teachings,
the Court noted.
It further held that there is no parti-
cular belief or doctrine that guides
Hinduism as all forms of beliefs are
included in its ambit, without a direction
to follow or reject any one belief.
State can’t appoint priests
The Reserve Bank of
India (RBI) must put in
public domain all inspec-
tion reports on “unethical
business practices” adop-
ted by public and private
sector banks, the Apex
Court ruled. It took the
central bank to task for
not sharing such details
despite information dem-
anded through RTI.
The Court observed
that it was obligatory on
the part of RBI to let the
people know about such
corrupt activities and the
bank must initiate tough
action against such finan-
cial institutions.
The RBI had app-
roached the Court against
directions from the Cen-
tral Information Commi-
ssion. The Commission
had several times ordered
RBI to furnish such infor-
mation under RTI. RBI
claimed that doing so
would go against the
“fiduciary relationship” it
had with the banks and
harm India’s economic
interests. But the Court
did not buy the argument
and said that the bank
was bound by Section
2(f) of the RTI Act.
RBI must share
probe report
Verdict on Sanskriti
School reserved
Special
Issue
10 January 15, 2016

11. — Compiled by Prabir Biswas; Illustrations: UdayShankar
In an urgent hearing, the Supreme Court put on
hold the swearing-in of Justice Virendra Singh as
Lokayukta of Uttar Pradesh after a PIL raised objec-
tions to his appointment. The PIL apprised the Court
that the retired judge of the Allahabad High Court
was part of the list of five candidates said to have
been okayed by the selection panel for the post
despite objections from Allahabad High Court Chief
Justice DY Chandrachud. The Apex Court itself had
appointed Singh as the candidate for the post on
December 16 after the UP government dragged its
feet on the issue despite directions from the Court.
Singh was to be sworn-in on December 20.
Justice Chandrachud himself had written a letter
to UP Governor Ram Naik, expressing his displeas-
ure over Akhilesh Yadav going back on his word.
The Court decided to take up the matter on January
4, 2016.
UPLokayukta’s
appointmentonhold
Araponstatesfor
neglectingNFSA
The states of Uttar Pradesh, Madhya Pradesh, Maharashtra,
Odisha, Jharkhand, Karnataka, Andhra Pradesh and Telangana
were recently asked by the Supreme Court to notify steps taken
to provide free foodgrains to people hit by drought. The states
are supposed to distribute foodgrains under the National Food
Security Act (NFSA) in times of distress. The Apex Court also
asked the center and the Ministry of Agriculture and Farmers
Welfare to respond on the issue.
A PIL filed by AAP leader Yogendra Yadav’s Swaraj Abhiyan
had alleged that the states were sloppy and careless in imple-
menting NFSA. This was nothing but an infringement of the rights
of people under Article 21 and 14 of the constitution, it pointed
out. Highlighting that the people were denied even two square
meals a day, the PIL pleaded that it was the solemn duty of the
states to offer relief to the people during tough times.
The petition wanted the Court to direct the concerned states
to provide satisfactory compensation for crop loss due to
drought and subsidy for cattle fodder, among other demands.
Taking a serious note of the laid-back attitude of
state governments in forming three-member
Waqf tribunals to settle Waqf property cases, the
Apex Court asked them to notify the setting up of
such tribunals within four months from December
15, 2015.
The amended Waqf Act, passed in 2013, had
mandated the state governments to set up the three-
member tribunals to adjudicate such cases. The
Court rebuked the state governments for their
lax attitude.
The Apex Court made it clear that only the three-
member tribunal could decide on cases related to
Waqf property. However, till the time three-member
tribunals are formed by states, the existing tribunals
could adjudicate cases, it held.
The reference came in connection with a
September order of the Bombay High Court, wherein
it had turned down an order of a single-member tri-
bunal on the ground that it had no authority to
decide Waqf property cases after the changed Waqf
Act came into being. It had instead directed that the
case be tried by a civil court. The Apex Court ruled
that the High Court had made an error of judgment
in the case and ruled that the one-member tribunal
will continue to hold sway till a three-member tribu-
nal was formed.
Directive on
Waqf Tribunals
of
INDIA LEGAL January 15, 2016 11

12. COURTS
Azam Khan under
scanner
The move by the opposition
and dissident MLAs to
dislodge the Congress gov-
ernment led by Arunachal
Pradesh Chief Minister
Nabam Tuki proved unsuc-
cessful after an order of the
Gauhati High Court.
The Court on December
17 stayed all proceedings
related to the crisis: advanc-
ing of the assembly session
by Governor JP Rajkhowa;
holding of makeshift assem-
bly sessions by Congress
dissidents and BJP MLAs on
the orders of the governor;
impeachment of Assembly
Speaker Nebam Rebia; voting
out the Tuki government by
the makeshift assembly and
appointment of Kalikho Pul as
the new speaker. The interim
order will prevail till February
1, 2016.
The Court’s order came
after a petition was filed by
Rebia. It took serious objec-
tions to Rajkhowa’s conduct
in the entire matter, especially
his decision to advance the
assembly session. It obser-
ved that the governor had
violated constitutional norms
by his unilateral decision.
Later, a petition filed by
the deputy speaker of the
state assembly, TN
Thongdok, in the Gauhati
High Court on December 21,
pleaded for annulling its
December 17 verdict.
However, Justice BK Sarma’s
court decided to hear the
petition on January 4, 2016.
Framing a law on banning cow
slaughter was not within the
purview of the judiciary and it was
for the legislature to decide,
observed the Delhi High Court.
While turning down a petition
filed by an NGO, Sadh Foundation,
that urged the Court to make a law
in this regard, the High Court
observed that the separation of
powers between the judiciary and
the legislature restricted its inter-
vention. It also referred to the
Supreme Court’s decision on the
matter. The top court had held that
it could not issue a verdict on cow
slaughter ban as the prerogative
lay with the government.
No law on
cow slaughter
Get all clearances
for cricket: HC
Aland transfer, allegedly at the behest of
Azam Khan, a cabinet minister in the UP
government, came under the scrutiny of the
Allahabad High Court.
A PIL was filed by social activist Nutan
Thakur, who claimed that Khan had transferred
1,500 sq yards of government land and build-
ing of Maulana Jauhar Ali Shodh Sansthan,
Rampur, to Maulana Jauhar Ali Trust, owned by
him. This, he did at an abysmally low lease.
Thakur wanted the transfer to be annulled and
legal action taken against officials connected
with the deal.
According to her, all rules and regulations
were broken to seal the deal and transparency
was thrown out of the window.
The Court asked the state government to
respond to the PIL within two weeks. The mat-
ter will again be taken up on January 20, 2016.
Temporaryrelief
forTukigovt
— Compiled by Prabir Biswas; Illustrations: UdayShankar
After being singed by allegations of irreg-
ularities, the Delhi and District Cricket
Association (DDCA) had to brace for more
trouble. The Delhi High Court restricted it
from holding ICC T-20 World Cup games
in the capital next year unless it gets all
necessary go-aheads from the concerned
government departments.
So far, the Court had been granting
“interim temporary licence” to DDCA for
holding matches or other events, as was
done in the case of the India-South Africa
Test match from December 3 to 7, 2015.
This was after DDCA’s fervent pleadings.
The association has been having serious
issues with municipal corporations, tax
department and the Delhi Urban Art
Commission (DUAC). The Court had in its
last order asked DDCA to get all mandatory
clearances by March 31, 2016.
The Court’s order came after DDCA
approached it for yet another provisional
certificate from DUAC and North MCD so
that matches slotted for Delhi could be held
in March next year.
12 January 15, 2016
Special
Issue

13. Justice Vikramjit Sen (left) is
likely to become the new
Lokayukta in Karnataka.
The state government has
already selected him for the
post. A former judge of the
Karnataka High Court, Sen
will retire from the Supreme
Court on December 30, 2015.
Earlier, Lokayukta Justice Y
Bhaskar Rao had to quit office
after his son, Ashwin Rao,
was arrested for running an
extortion racket from the
Lokayukta office.
Incidentally and for reasons
unknown, Sen’s candidature
was also propped up by Cath-
olic connections in Karnataka,
according to sources.
NATIONAL BRIEFS
THE Lok Sabha shot down an
effort by Congress MP Shashi
Tharoor to legalize gay sex
through a private member's bill at
the introduction stage itself,
Livemint reports.
The MPs prevented any discus-
sion aimed at dropping Section 377
from the Indian Penal Code (IPC)
of 1860 that criminalizes homosex-
uality. The ruling BJP members
scored a victory as the introduction
of the bill was disallowed by a
majority of 71, against 24 voting for
it. Tharoor tweeted: “Surprising to
see such intolerance.”
Criticizing the attitude of MPs,
Bangalore-based NGO Sangama,
working for LGBT communities,
said that no responsible parliament
should ignore the harassment and
persecution of sexual minorities on
account of the archaic Section 377.
THE government indi-
cated in the Lok Sabha
that a fresh bill could be
brought in to change the
present system of probing
complaints of misbehavior
and incapacity against
judges of the Supreme
Court and high courts, as
the Judicial Standards
and Accountability Bill
has lapsed, Hindustan
Times reports.
“The Judicial
Standards and
Accountability Bill has
lapsed. We are working on
it,” Law Minister DV
Sadananda said in the Lok
Sabha, in an indication
that the proposed legisla-
tion could be brought
afresh. He said any deci-
sion will be taken “after
taking suggestions from
the stakeholders.”
Gowda was responding
to questions on the
judiciary, including
pending cases, allegations
of corruption against
judges and lack of
transparency in
their appointment.
Judicial
accountability
AS many as 58 members of
the Rajya Sabha have peti-
tioned the Vice-President and
Rajya Sabha Chairman
Mohammad Hamid Ansari to
initiate impeachment proceed-
ings against Justice J B
Pardiwala of the Gujarat High
Court for his “unconstitutional”
remarks against reservations in a
case pertaining to Patidar leader
Hardik Patel, reports NDTV.
The lawmakers alleged that
while delivering the judgment on
a special criminal application
against Hardik Patel, Justice
Pardiwala ruled that two things
have “destroyed this country or
rather, (have) not allowed this
country to progress in the right
direction...(I) reservation and
(II) corruption”.
However, within a few hours
of the move by MPs, the state
government moved a petition in
the Gujarat High Court request-
ing deletion of the controversial
comments, and in response,
Pardiwala expunged the entire
offending paragraph from
the judgment.
Row over quota
remarks
Bill to legalize gay
sex thwarted
— Compiled by Anuj Raina
Vikramjit Sen, the next Lokayukta
FOUR armed juveniles entered the premises
of Karkardooma Court in Delhi recently and
fired randomly inside a courtroom. The incident
occurred when a high-risk undertrial, Irfan, was
being brought into the courtroom for hearing. A
head constable, Ram Kunwar Meena, escorting
Irfan was killed in the firing. The metropolitan
magistrate who was to hear the case barely es-
caped a bullet. Irfan, too, was critically injured.
All the four assailants were later nabbed by
lawyers, litigants and police.
Rivalry between two gangs is said to be the
trigger behind the attacks. The attackers, sus-
pected to be contract killers, wanted to kill
Irfan. A case of murder and attempt to murder
was registered.
Firing at
Karkardooma
court complex
of
INDIA LEGAL January 15, 2016 13

14. T
HE air pollution saga in
Delhi gets murkier with
each passing day as
authorities helplessly grap-
ple with it. It has been
unable to get a fix on the
dangerous reality that has
made the capital the most polluted city of the
world. It has put the health of its population
in severe danger.However, the story of Delhi
being a heavily polluted city is not new.
SUPREME COURT/Tackling Delhi’s Pollution
While the apex court very recently cracked
down on diesel pollution, the government has
proposed a new formula to reduce Delhi’s
traffic burden. But that may end up as a
cosmetic move. What’s needed is to improve
public transport and enforce existing laws
By Ramesh Menon
GASSED!
Special
Issue
14 January 15, 2016

15. Twenty-two years ago, I had done an exhaus-
tive piece in India Today on precisely this
topic. Today, the situation is worse and more
serious. For more than two decades, Delhi
has seen more than a thousand new vehicles
hogging its streets every single day! It is now
clear that the breaking point has been
reached.
HISTORIC JUDGMENT
As no government really cracked down on
pollution or strictly enforced norms, the
Supreme Court this fortnight in a historic
judgment banned the sale of high-end diesel
luxury cars and SUVs with an engine capaci-
ty of 2,000 cc or more for a period of three
months. It also made it mandatory for taxis
to shift to CNG, slapped a huge tax on trucks
entering Delhi and has taken 10-year-old
commercial vehicles running on diesel off the
city’s roads. The court ordered immediate
paving of roadsides along with vacuum
cleaning of roads as dust has emerged as a
major health hazard. Municipal authorities
have been asked to curb burning of waste.
Incidentally, diesel vehicles contribute
hugely to particulate matter and nitrogen
oxides that are rising in Delhi. These emis-
sions were branded as human carcinogens
by the International Agency for Research on
Cancer of the WHO for their strong links
DangerousBreath
Rating of Delhi: Very unhealthy
Health Effects in Delhi: Significant aggravation of heart or lung disease and
premature mortality in persons with cardiopulmonary disease and the elder-
ly. Significant increase of respiratory problems in the general population.
Cautionary Statement for Delhi: People with heart or lung disease,
older adults and children should avoid physical activity outdoors. Everyone
else should reduce prolonged or heavy exertion.
Delhi Air Quality Score:
Delhi:
201
Beijing:
160
Shanghai:
134
London:
86
Paris:
65
Washington
DC: 42
of
Photos: Anil Shakya
INDIA LEGAL January 15, 2016 15

16. with lung cancer.
A draft report of the Indian Institute of
Technology, Kanpur, has shown that diesel
vehicles are the major source of particulate
matter emissions in the transport sector. In
areas like upmarket Vasant Kunj, diesel vehi-
cles were found to contribute 90 percent of
particulate matter pollution.
The court extended the proposed ban to
the National Capital Region as it feared that
Delhites would go beyond the borders to pur-
chase diesel cars. All city cabs, including app-
based services such as Uber and Ola, will
now have to move to CNG.
TARGETING THE RICH
Diesel was always subsidized as it was crucial
to the transport sector. Every little increase in
the price of diesel would make those of essen-
tial commodities sky-rocket. But, ironically,
it helped the rich operate expensive diesel-
run SUVs and luxury cars. Today, 30 percent
of vehicles in Delhi run on diesel. The court
pertinently asked why the rich were being
allowed to pollute the capital and said that
they can’t go around in luxury sedans and
SUVs polluting the environment as people’s
life were at stake.
Senior advocate Harish Salve who was the
amicus curiae said that the blame must lie
with diesel vehicles as one diesel car is equal
to eight petrol cars as far as pollution is con-
cerned. Senior advocate Dushyant Dave who
appeared for automobile manufacturers
argued that diesel vehicles formed only a
small part of the overall number of vehicles
and they should not be targeted as impracti-
cal curbs would affect thousands of workers
and huge investments. He said even Beijing
had not banned diesel vehicles. But the
bench of Chief Justice TS Thakur and
Justices AK Sikri and R Banumathi dis-
agreed saying: “Let us stop it for three
months. The worst polluted city in the world
should take drastic measures.”
Earlier in October this year, the court had
ordered that light duty vehicles would have
to pay Rs 700 and three-axle vehicles would
pay Rs 1,300 to enter Delhi as an
“Environment Compensation Charge”. The
court had taken note of a study by the Centre
for Science and Environment (CSE) which
Burning of
biomass and
garbage in
winter has
led to rising
pollution.
Special
Issue SUPREME COURT/Tackling Delhi’s Pollution
16 January 15, 2016

17. showed that about 23 percent of commercial
vehicles and 40-60 percent of heavy trucks
entering Delhi were actually using it as a
transit point and were going to other places.
Chief Justice Thakur said that the court
might increase the charge by 100 percent for
commercial vehicles travelling through
Delhi. It is estimated that 80,000 trucks
crossing Delhi everyday are adding to the
problem.
ODD POLICY?
Meanwhile, the Delhi government had
requested the Supreme Court to give its
stamp of approval to the formula to allow
only odd number and even number cars on
certain days, saying that it would embolden it
if it did. The court said that it was up to the
Delhi government to implement it if it
thought it was the way forward. It is bound to
lead to a lot of chaos as there are nearly 75
lakh vehicles and it would be impossible to
monitor them. Delhi does not have enough
traffic policemen to manage the present traf-
fic and one can imagine what can happen
when the formula kicks into force for a trial
period of 15 days from January 1, 2016.
Public transport in the capital is very inade-
quate and commuters and office-goers will
find it a serious problem on all the days pro-
posed. One of the reasons why there are so
many cars on the road is that the public
transport system has not evolved the way it
has in cities like Mumbai. Clearly, stop-gap
superficial methods to tackle air pollution
are not going to help.
Sunita Narain, director-general of CSE
told India Legal that the landmark decision
of the Supreme Court to stop the registration
of luxury diesel cars and SUVs in NCR, bar
entry of pre-Euro III trucks into Delhi, dou-
ble the environment compensation charge on
all trucks entering Delhi and mandate all
taxis in NCR to convert to CNG was achieved
after fighting for over 12 years.
“These steps are expected to catalyze
longer term solutions to clean up the air. This
winter, Delhi has already experienced a rapid
increase in pollution—PM2.5 levels have
remained three to four times the standard
Anil Shakya
World’sMostPolluted
Rank City and country PM2.5
1 Delhi, India 153
2 Patna, India 149
3 Gwalior, India 144
4 Raipur, India 134
5 Karachi, Pakistan 117
6 Peshawar, Pakistan 111
7 Rawalpindi, Pakistan 107
8 Khorramabad, Iran 102
9 Ahmedabad, India 100
10 Lucknow, India 96
11 Firozabad, India 96
12 Doha, Qatar 93
13 Kanpur, India 93
14 Amritsar, India 92
15 Ludhiana, India 91
16 Igdir, Turkey 90
17 Narayanganj, Bangladesh 89
18 Allahabad, India 88
19 Agra, India 88
20 Khanna, India 88
Source: World Health Organization
Indian cities have the dubious distinction
of leading the world insofar as fine partic-
ulate matter pollution is concerned
Diesel vehicles
contribute
hugely to
particulate
matter and
nitrogen oxides
pollution. WHO
says these are
carcinogenic
as they have a
strong link with
lung cancer.
of
INDIA LEGAL January 15, 2016 17

18. and on smoggy days, the level can go up to six
to seven times. The court had examined evi-
dences of health impacts which indicate that
the lung of every third child is impaired,”
she said.
Anumita Roychowdhury, Centre for
Science and Environment’s executive direc-
tor, said: “Dieselization adds to the burden of
particulate matter, nitrogen oxides, and
ozone which are the key pollutants. The cur-
rent emissions standards in India legally
allow diesel cars to emit more particulate
matter and nitrogen oxides that are greater
pollutants than petrol cars.”
FACTORS FOR POLLUTION
Another reason for rising pollution levels is
that a lot of biomass and garbage is burnt in
winter in Delhi and NCR. People often light
fires to keep warm, using whatever they can
gather. Little has been done to stop this.
Another factor is dust, which piles up on
the roadsides and is often gathered and
dumped on the divider, from where it again
falls on to the road when the wind blows. Or it
is just left on the road in heaps for it to spread
again. There seems to be no organized time-
bound system to clear it.
Then, there are frequent power cuts in the
capital, leading people to use diesel generators
which spew poisonous smoke. No one is talk-
ing of all these pollutants in this debate.
Then, there is adulterated fuel which again
causes a lot of harm and there are hardly any
checks on it. There have also been car-free
days where commuters were encouraged to
cycle. But there are no cycle tracks and cycling
in the present chaotic traffic that cares little for
etiquette or even traffic rules, is dangerous.
Clearly, knee-jerk reactions, like allowing
cars only with certain numbers on a certain
day, is not the answer as it is just not going to
work. Improving public transport, fine-tuning
the traffic management system by removing
encroachments and stopping illegal parking
and heavily fining polluting vehicles might be
a more practical solution. IL
SUPREME COURT/Tackling Delhi’s Pollution
The Supreme Court on December 17 banned registration of all diesel vehi-
cles with engine capacity of 2,000cc and more in the entire National Capital
Region till March 31
Trucks older than 10 years were banned from plying in Delhi
Trucks were banned from transiting through Delhi to other places
The environment compensation charge on trucks that do ply in the city was
doubled from `700 to `1,400 for light duty vehicles and from `1,300 to
`2,600 for three-axle vehicles This is payable in addition to toll tax
All app-based services including Uber and Ola must now completely switch
to CNG from March 1
The court on the odd-even rule
On the issue of the Delhi government's “odd-even” plan for alternately
allowing private vehicles to ply, the bench said, “We cannot say anything on
it. We are not too sure that this is the only way. This is one of the measures. It
is for you (Delhi government ) to implement”
The CJI observed that “he won't hesitate” to car pool with “brother judges”
APEXCOURT’SCLEANUPACT
Special
Issue
UNI
18 January 15, 2016

19. ABrazilian judge ordered the lifting
of a 48-hour suspension of the
services of Facebook Inc's WhatsApp
phone-messaging application, over-
turning an order from a lower court.
The ban lasted about 12 hours until
an appeals court judge overturned it,
said the BBC.
The interruption of WhatsApp’s
text message and internet telephone
service caused outrage in Latin
America’s largest country, where the
company estimates it has 100
million personal users, and led to
angry exchanges on the floor of the
Congress. WhatsApp is installed on
93 percent of Android devices in
Brazil, making it the most installed
app in the country, according to the
TechCrunch website.
BrazilliftsWhatsApp suspension
INTERNATIONAL BRIEFS
Japanese scribe
gets off the hook
AJapanese journalist
has been found not
guilty of defaming South
Korea's President Park
Geun-hye, Voice of
America reports.
Writing for Japan's
Sankei Shimbun, Tatsuya
Kato repeated rumors
about Park’s whereabouts
on the day of the Sewol
ferry disaster in April 2014
that killed more than 300
people—mostly teenagers
on a school trip. Kato
maintained that the report
was in the public interest.
Critics had said the deci-
sion to prosecute infringed
on free speech.
Park’s government has
faced a huge public back-
lash for its handling of the
rescue operation.
Japanese couples to
share surnames
The Japanese Supreme Court has
upheld a law that married couples
must have the same surname, in a blow
to women’s rights activists, reports
The Atlantic.
Campaigners have said the law is
discriminatory as most couples end up
using the husband’s surname. However,
the court said the law did not violate the
constitution. It did, however, deem a
separate law that stops women
remarrying within six months of a
divorce unconstitutional.
Amnesty International
says Turkey has round-
ed up scores of refugees
and asylum-seekers since
September and transport-
ed them to detention cen-
ters where some have
been mistreated or forcibly
returned to Syria and Iraq,
reports International
Business Times.
Turkey hosts
the world’s
largest number of
refugees, includ-
ing 2.2 million
Syrians. It has
denied that
Syrians are being
forced back, and
says that all
returnees are
interviewed by the UN staff.
This month, Turkey and
the EU reached an agree-
ment aimed to curb the
flow of migrants to Europe.
It includes an EU pledge to
provide 3 billion euros
($3.3 billion) to help
improve the conditions of
refugees in Turkey.
Turkey ill-treating refugees: Amnesty
Tatsuya Kato
ADanish government proposal to seize assets
of asylum-seekers to make them pay for their
maintenance has drawn sharp criticism in interna-
tional media. The Washington Post described the
plan as “extreme” and website Vox called it
“cruel”.Denmark expects to receive around
20,000 asylum seekers this year, compared to
15,000 last year. It further expects about 25,000
next year.
Integration minister Inger Stoejberg said the
police should be allowed to seize valuables to
make them pay for housing, healthcare and edu-
cation. She likened migrants to jobless Danes
who must sell their assets above a certain level to
claim benefits. Both the ruling centre-right Venstre
party and the right-wing, anti-immigration Danish
People’s Party back the bill, meaning it should
pass by February. Stoejberg said wedding rings,
watches or items “with a sentimental value”
should not be taken. The law will only apply to
cash worth more than 3,000 kroners ($436) and
“tangible assets of a considerable value”.
Denmark decides to seize
migrants’ assets for maintenance
— Compiled by Anuj Raina
of
INDIA LEGAL January 15, 2016 19

20. With the Congress ruling in just
nine states, it would seem that the
might of the Gandhi family is over.
But in politics, one can never write
off anyone and the family could
well come back
By Kalyani Shankar
Dynasty’s
Roulette
I
S India’s powerful Nehru-Gandhi
dynasty on the decline? This
political family—which produced
three prime ministers, including
Jawaharlal Nehru is obviously
gasping for breath. While it has
overcome obstacles earlier, can it
do so now?
Firstly, the dynasty is declining perhaps
because it is losing relevance politically. The
growing number of aspirational youth (65
percent of the population) are not impressed
by it. A good chunk of voters are born after
Indira Gandhi’s assassination in 1984.
Nehru’s memory is even further removed for
them. Few voters under the age of 30 remem-
ber Rajiv Gandhi either. So it is not surpris-
ing that the reverence for the first family is
disappearing fast.
Secondly, over the years, the Congress has
declined steeply in many states including
Gujarat, Madhya Pradesh, Uttar Pradesh,
Chhattisgarh, Jharkhand, West Bengal,
Odisha, Tamil Nadu, Telengana and Andhra
Pradesh. It has lost power in Tamil Nadu for
48 years, West Bengal for 37 years and UP
and Bihar for more than 25 years. In Punjab,
the party is facing a serious threat from the
Akali Dal-BJP combine, while in Delhi, it has
virtually disappeared. In Bihar, it is slowly
raising its head. The party is currently ruling
in just nine states.
Thirdly, even the rank and file of the
Congress is looking for a direction that can
restore its fortunes. At one time, it was a
democratic party with a formidable organi-
zation and a pan-Indian appeal. But from the
1970s onwards, it saw a decline in most states
due to Indira Gandhi’s style of functioning.
The Congress presently faces a structural
POLITICS/ Nehru-Gandhi Family
Special
Issue
20 January 15, 2016

21. Anil Shakya
dilemma on several fronts—organizational
weakness, ideological stagnation and shrink-
ing social support. There is also a leadership
crisis with Sonia Gandhi’s declining health
and confusion over Rahul Gandhi taking
over the reins.
F
ourthly, there is a splintering of polity.
Several new dynasties from more than
a dozen politically significant families
have risen in some key states, including
Uttar Pradesh and Bihar. These regional
chieftains have a proprietorial hold over
their strong vote-bank. The Congress has
lost the capacity to breach these fortresses
unless it chooses to ride piggyback on them
as it did in Bihar.
Fifthly, the Gandhis are unable to battle a
declining public image because of their dis-
connect. After the 2014 Lok Sabha drubbing,
Sonia was forced to defend not only the fam-
ily but also the dynasty. “I take the responsi-
bility as the Congress president,” she had
declared after the defeat in an effort to shield
her son. The party is still backing the dynasty.
An internal report after the 2014 debacle
concluded that the defeat was due to a spate
of corruption scandals, poor handling of the
economy, infighting in the party and poor
leadership, thereby rejecting any specific
blame on the dynasty.
Sixthly, what is more worrying for the
Gandhis is not only the loss of key states, but
also the loss of traditional support of the
minorities, Dalits and adivasis to the growing
number of regional parties.
However, as experience shows, it is never
wise to write off a politician and more so the
Nehru-Gandhi dynasty. It always springs
back. Therefore, it will be premature to
FRESH CHALLENGE
Sonia and Rahul arrive at
the Patiala House district
court for hearing in the
National Herald case. It
was for the second time
that any member of the
Gandhi family had to
appear in a court
Though Rahul
continues to be a
reluctant prince,
it is only matter of
time before he
takes over the
party as the die is
cast. His friends
and supporters
believe that he is
shy, reserved,
decent and out
of place in
politics. Age,
however, is on
his side.
of
INDIA LEGAL January 15, 2016 21

22. ernment only to lose again in 1996. The next
two years, it remained influential by support-
ing the United Front government but from
1998, it sat in the Opposition. In 2004, when
everyone thought the party was finished, the
Congress rode back to power and led by
Sonia Gandhi, ruled for ten years until 2014.
However, the key to the revival was more to
do with the mistakes committed by others
and also the arithmetic when Sonia Gandhi
stitched a coalition of secular parties. Now
after the 2014 polls, with the Congress get-
ting its lowest-ever score of just 44, the
Gandhis are waiting once again to benefit
from the mistakes committed by the BJP and
Prime Minister Narendra Modi.
Italian-born Sonia Gandhi’s rise to power
is like a fairy tale. She transformed herself
from a housewife to a politician and from a
European to an Indian in the last 45 years.
Born in a middle class family in Turin, Sonia
met Rajiv Gandhi in Cambridge. It was a love
at first sight and the two got married in 1968.
Sonia remained a housewife until the assassi-
nation of Rajiv in 1991.
After 1998, when she joined politics, she
went on to become one of the most powerful
women in the world. She was rated third
most powerful in 2004 by Forbes magazine
and sixth in 2007. She was ranked ninth in
the list of world’s most powerful persons in
2011 and 12th in 2012. She also featured in
the Time’s list of 100 most influential
women in the world in 2008. She was
ranked sixth, a notch above US First Lady
Michelle Obama in Forbes list of 100 most
powerful women in 2012.
Congress leader Shashi Tharoor in an
article in Time on May 12, 2008, wondered:
“But which story is one to tell? That of the
Italian woman who became the most power-
ful figure in a land of a billion Indians? That
of the reluctant politician who led her party
to power? That of the parliamentary leader
who rejected the highest office in her adopt-
ed land, one she had earned by her hard work
and courage? That of the woman of principle
who demonstrated that one could stand for
right values even in a profession corroded by
cynicism and cant? That of the novice in pol-
itics, who became a master of the art, trusted
her own instincts that she could be right
NEVER SAY DIE
Indira Gandhi with her son
Sanjay Gandhi during the
Emergency. She lost power
after the Emergency in 1977
elections but soon bounced
back after the polls in 1980
write off the first family despite its steady
decline. The party looks to the Gandhi glue
for unity and survival even if it has shrunk.
After all, this is not the first time that the
dynasty is fighting for its survival.
I
ndira Gandhi who was booted from
office after the Emergency in 1977
bounced back in 1980. After her assassi-
nation, the party rode back to power winning
an unprecedented 404 seats out of the 533 in
the Lok Sabha, a record, which is yet to be
beaten. After the Bofors scandal, Rajiv lost
the elections, winning just above half of his
earlier performance. In 1991, after Rajiv’s
assassination, the party came to power with
PV Narasimha Rao heading a minority gov-
The Congress presently faces
organizational weakness, ideological
stagnation and shrinking social support.
There is a also a leadership crisis.
POLITICS/ Nehru-Gandhi Family
Special
Issue
22 January 15, 2016

23. more often than her rivals could ever have
imagined? The story of Sonia Gandhi is all
these stories and more.”
S
onia continues to remain an enigma.
Former external affairs minister K
Natwar Singh, a one-time family loyal-
ist, in his autobiography, One Life is Not
Enough, described her as “authoritarian,
obsessively secretive and suspicious”. But her
friends vouch for her warmness.
During Narasimha Rao’s regime (1991-
1996), her political ambitions became visible
when she created the Congress T (Tiwari) in
1994 with her loyalists, including ND Tiwari,
Arjun Singh, ML Fotedar, Natwar Singh and
Sheila Dixit. This experiment failed and she
had to wait for four more years to become
party president.
The timing of her entry was perfect as the
declining Congress needed a charismatic
leader and Sonia filled that vacuum. Sonia
claims that she took the decision to head the
party because of her duty to her husband’s
family. Her decision on December 27, 1997,
announced from 10 Janpath took many,
including the then party president Sitaram
Kesri by surprise. She covered the length and
breadth of the country covering 60,000 km,
speaking in 138 constituencies in 34 days
even as the party watched her breathlessly.
She eased out Kesri and took over the reins of
the party in March 1998. Till today, she has
remained the undisputed leader and the
longest-serving chief. Only twice was her
leadership challenged—once by the Sharad
Pawar-Sangma duo in 1999 and a second
time by the late Jitendra Prasad in 2000.
Both times, she emerged stronger.
Sonia became crafty by joining hands
with Tamil Nadu chief minister Jayalalitha
and pulled down the Vajpayee government in
1999. However, Vajpayee came back to power
and Sonia also entered parliament to become
the first woman Leader of the Opposition
in 1999.
By 2004, she managed to get respectabil-
ity in political circles and was able to gobble
up a non-BJP coalition, including the DMK,
Left parties and the RJD. In a master-
Experience
shows that it is
never wise to
write off the
Nehru-Gandhi
dynasty. It
always springs
back. This is
not the first
time the
dynasty is
fighting for
its survival.
ENIGMATIC RISE
(Above) Sonia Gandhi on the
cover of Time magazine in its
May 2004 issue, after
Congress regained power at
the center
(Left) Sonia with Rajiv Gandhi.
She took the plunge to head
the Congress, as a duty to her
husband’s family
of
INDIA LEGAL January 15, 2016 23

24. a series of scams relating to the Common-
wealth Games, 2G licenses, coal block alloca-
tions, and Adarsh housing scam.
S
onia also has achieved three things.
First, she brought a languishing party
to power not once but twice. Secondly
she has kept the flock together since 1998.
Thirdly, she also broke anti-Congressism in
other parties, including the Left, to the
extent they joined the UPA coalition. Anti-
stroke, she put her proxy, Manmohan Singh,
as prime minister to the surprise of all.
This was the second time she declined the
throne, the first being soon after Rajiv’s
assassination. She cleverly punctured the
high-pitched criticism of the BJP by this pro-
xy ruling. But it was no secret that Sonia con-
tinued to be the prima donna in her party as
well as in the country as nothing moved
without her knowledge for the next ten years.
However, the government was blackened by
Mink Coat controversy (1966)
In 1966, Ram
Manohar Lohia,
charged in par-
liament that
Indira Gandhi
had accepted
an expensive
mink coat from
Jayanti Dharma Teja, a shipping tycoon
and a dubious personality.
Nagarwala case (1971)
SBI’s chief cashier got a phone call
from someone speaking in the then PM
Indira Gandhi’s voice directing him to
hand over `60 lakh to her messenger, a
former army officer Rustom Sorab
Nagarwala. The cashier was directed to
collect the receipt later but when he
went to PM’s residence to collect the
same, he was told that no such request
has been made by the PM. Police
arrested Nagarwala and he was found
guilty after he confessed his crime in
court. However, the 1978 Reddy
Commission report found that the con-
fession should have been rejected as it
was not admissible evidence.
Maruti scandal
(1977)
In 1974, Indira
Gandhi’s name
came up again in
the first Maruti
scandal, where her son Sanjay was
favoured with a licence to make pas-
senger cars in the then highly restric-
tive-environment (Licence Raj).
Bofors scam (1987)
The then prime
minister Rajiv
Gandhi and
several of his
associates
were accused
of receiving kickbacks from Bofors AB
for winning a bid to supply 155 mm field
howitzer guns to India.
2G Spectrum scam (2008)
It is alleged that millions of dollars
Lockedinscamsandintrigues
FAILED ATTEMPT
Sonia Gandhi created the
Congress (T) in 1994 with her
loyalists, including Natwar
Singh (left) and ND Tiwari. But
the experiment failed to make
her party president
Corruption charges or allegations of being involved in controversies is nothing new for
the Gandhi family. It has been involved in legal battles right from 1948. We list a few:
POLITICS/ Nehru-Gandhi Family
Special
Issue
Rajeev Tyagi
24 January 15, 2016

25. Congressism was not only against the
Congress but also against the Gandhi family.
Between 2004 and 2014, the Congress
not only won two national elections and
ruled for two full terms but also won 21
assembly elections. But there is no evidence
that the party used its stint in power to ener-
gize the organization. Instead, it promoted
rootless leaders.
Sonia brought her son Rahul to succeed
her in 2004. Since then, these dual power
centers have confused many in this party
which believes in sycophancy. She has kept
her daughter Priyanka Vadra Gandhi in res-
erve in case Rahul failed. That stage has not
yet come.
As for Rahul Gandhi, he is yet to become
a 24/7 politician. Ironically, the man who
could have become prime minister at any
point in the past decade did not want the job.
Had he become at least a minister in 2004
when he joined politics, he would have learnt
a lot but he frittered away many opportuni-
ties. For instance, he could have intervened
during Anna Hazare’s “India against Corr-
uption” movement. He could have shown his
mettle when Sonia Gandhi went abroad for
treatment in 2014. He certainly did not show
his vote-catching ability in the Uttar Pra-
desh, Maharashtra, Haryana, Jharkhand and
other recent assembly polls where the
Congress failed miserably.
All his experiments with the NSUI, Youth
Congress and handpicked PCC presidents
did not succeed. He has not only alienated
senior leaders but has not been able to pick
the right people for the right job. He has not
grown into a good parliamentarian nor into a
good public speaker. Part of his problem is
the coterie around him who has no experi-
ence in politics.
However, though Rahul continues to be a
reluctant prince, it is only matter of time
before he takes over the party as the die has
been cast. The advantage for Rahul is that
there are no challengers within the party who
are willing to give him a long rope. His
friends and supporters believe that he is
were paid in
bribes to ensure
favours for cer-
tain firms in
2007-08 when
India issued 122
new licences to
mobile service providers. It was during
the Congress rule and under Sonia’s
presidency. Several licences were
issued to firms who were ineligible, or
who had no prior experience in the
sector, or who had concealed material
facts while applying.
Vadra-DLF controversy (2012)
The controversy surfaced in October
2013, when anti-
graft activist
Arvind Kejriwal
and his associ-
ates accused
Robert Vadra of
corruption. Kejriwal alleged that Vadra,
son-in-law of Congress President Sonia
Gandhi, purchased at least 31 proper-
ties mostly in New Delhi worth more
than `300 crore for which money came
from “unsecured interest-free loans
from DLF Ltd”. Both Vadra and DLF
denied the allegations.
Chopper scam (2013)
It is alleged that bribes were paid to
several Indian politicians and military
officials by
AgustaWestland
in order to win
the `36 billion
(US$ 540 million)
Indian contract
for the supply of
12 AgustaWestland AW101 helicopters
to perform VVIP duties for the President
of India and other important state
officials.
National Herald case
BJP leader Subramanian Swamy filed a
complaint before a trial court in 2012,
alleging that Congress leaders were
involved in cheating and breach of trust
in the acquisition of Associated Journals
Ltd (AJL) by Young Indian Pvt Ltd (YIL),
which has Sonia and Rahul on its board
of directors. Assets worth over `2,000
crore had been transferred to YIL.
The case created a sensation
when Rahul and Sonia made an
appearance in the Patiala House Court
in New Delhi.
— Compiled by Priyvrat S Chouhan
The dynasty can survive only as long as
people let it survive. If it fails to perform,
it may be booted out. But the Gandhis
have not yet reached that stage.
of
INDIA LEGAL January 15, 2016 25

26. IL
worth of assets.”
However, when the Gandhis appeared
before the Sessions Court at Patiala House on
December 19 as per the High Court orders,
they and the others got bail on a surety of
`50,000 each. Metropolitan magistrate
Loveleen said: “Charges cannot be termed
serious in magnitude at this stage.” On
Swamy’s insistence that they might tamper
with evidence and even flee from the country,
Loveleen retorted: “They are respectable
people belonging to the oldest political party.
They have deep roots in society.”
W
hile the Congress is celebrating the
bail as a victory, the magistrate has
directed all accused to appear
before it in person on February 20, 2016. By
making out a purely legal case into a political
one, the Gandhi family is perhaps trying to
project the party as a victim and seeking pop-
ular support. They are also trying to relive the
Indira Gandhi era by evoking memories of the
legal case she had to fight, little realizing that
it was a different time and different players.
Even she had to fight her case legally.
Whatever image the Gandhi’s might be
trying to project, the case could harm them
politically. For one, they fail to realize that it’s
a gamble and can go either way in public per-
ception. Politics is about perceptions, after
all. While they expect a wave of sympathy,
many may turn against them.
They also need to be careful because the
case might take a long time to reach conclu-
sion. And each time it comes up in court, the
media will provide a flashback of the case,
which is not in the family’s interest.
They also need to reckon that Swamy is a
one-man army and does not let go his oppo-
nents, be it Ramakrishna Hegde, VP Singh,
Jayalalithaa or Vajpayee.
Finally, by claiming a political victory in a
bail, they are losing sight of the common-
place wisdom that bail is normal and jail is
abnormal in legal cases. The moral of the
Gandhi story is that the dynasty can survive
only as long as people let it survive. The
baton is about to passed over to Rahul
Gandhi. If the dynasty fails to perform, it
may be booted out. The Gandhis have not yet
reached that stage.
shy, reserved, decent and out of place in pol-
itics. Age, however, is on his side.
T
he Nehru-Gandhi family is also mired
in some legal controversies. The Jeep
scandal in 1948 was the first major
corruption case in independent India when
the first Indian High Commissioner VK Kri-
shna Menon ignored protocols and signed
`80 lakh contracts for the purchase of army
jeeps with a foreign firm. In 1958, much to
the embarrassment of the government, Feroz
Gandhi, Indira’s spouse, exposed the insur-
ance scandal involving Ram Krishna Dalmia.
In the late sixties, there was the mink coat
controversy when shipping tycoon Dharam
Teja was alleged to have gifted a mink coat to
Indira Gandhi. She also faced the Nagarwala
scam in 1971. The next one was the Maruti
scandal involving Sanjay Gandhi in 1974, fol-
lowed by the Bofors gun deal which
embroiled Rajiv Gandhi and made him lose
power. This was followed by the 2G contract
scam in 2008, followed by the Vadra-DLF
scam which surfaced in 2012. The Augusta
chopper scam broke out in 2013. The same
year, the Italian marines scan-
dal also surfaced.
The latest issue rocking par-
liament is the National Herald
case in which both mother and
son are alleged to be involved.
BJP leader Subramanian
Swamy has accused Sonia and
Rahul of setting up a firm called
Young Indian to buy the debt of
Associated Journals Ltd (AJL,
the company that owned Nati-
onal Herald) using Congress
party funds. The Congress cla-
ims that it had given a loan of
over `90 crore to AJL. The
Delhi High Court recently
observed: “From the complaint
and the evidence led so far, it
appears that (Young Indian
Company) was in fact created as
a sham or a cloak to convert
public money to personal use or
as a special purpose vehicle for
acquiring control over 20 bil-
lion rupees ($335 million)
POLITICS/ Nehru-Gandhi Family
Special
Issue
REAL TROUBLE?
The Gandhis can’t take the
National Herald case lightly
as Subramanian Swamy,
the accuser, is known not
to let go his opponents
UNI
26 January 15, 2016

28. Attempts to implicate Narendra Modi and
his right-hand man Amit Shah for the 2002
riots in Gujarat have come to naught as
courts have given them and others a clean
chit. Has Zakia Jafri’s fight been in vain?
By RK Misra in Gandhinagar
INVESTIGATION/ Modi & Amit Shah Cases
C
LEAN chits given by courts to
those in power are not as sim-
ple as they look. Behind them
are many issues—investigat-
ing agencies and their pull-
backs, political arm-twisting
and legal jugglery. The clean
chit given to then Gujarat chief minister,
Narendra Modi, former Gujarat minister of
state for home, Amit Shah and others in the
2002 riots cases have raised many eyebrows.
Of course, the fact that Modi is now the
prime minister and Shah the national BJP
president may have had a bearing on the
investigations. Power alters equations and
absolute power alters it absolutely.
ARDUOUS FIGHT
A petition challenging the clean chit given to
Modi and others by Zakia Jaffri in the 2002
riots cases is before the Gujarat High Court.
Futile Fight
for Justice?
Special
Issue
UNI
28 January 15, 2016

29. Her quest for justice has been an arduous
one after her husband, former Congress MP
Ehsan Jafri, was among 69 people killed in
the Gulbarg society massacre in Ahmedabad.
This was during the 2002 communal riots
that followed the Godhra train carnage in
which some thousand people died, largely
from the minority community. The adminis-
tration sought to thwart impartial investiga-
tion into the rioting cases and repeated
attempts at lodging an FIR were subverted.
In 2006, Zakia filed a complaint in the
Supreme Court against Modi and 62 others,
which included ministers, police officers,
bureaucrats and BJP leaders. The apex court
constituted a Special Investigation Team
(SIT) to probe the cases which included iden-
tified cases where it was felt that justice had
not been done. The SIT found substance in
the charges and filed charge-sheets in many
of these cases against those who were culpa-
ble and the courts handed out varying jail
terms to those involved.
However, it is the clean chit given to Modi
by SIT which was subsequently upheld by a
metropolitan magistrate that has been chal-
lenged in the Gujarat High Court in March
2014. Zakia’s revision petition argues that the
lower court has not taken into consideration
numerous aspects of the case, including the
larger conspiracy that began before the burn-
ing of the Sabarmati Express bogie near
Godhra railway station on February 27,
2002. The petition also said that even if riots
broke out in reaction to the bogie’s burning,
the state machinery had failed to control it.
Officials failed to do their duty, curfew was
not imposed in time and the army was not
called in immediately, it said.
Moreover, while upholding the SIT clo-
sure report, the lower court did not rely on
witnesses such as former DGP RB
Sreekumar, IPS officer Rahul Sharma and
POWERFUL DUO
(Facing page) Amit
Shah and Narendra
Modi during a National
Executive meeting
Zakia Jafri (above left)
waged a lone battle to
punish the killers of her
husband (above right)
former Congress MP
Ehsan Jafri. He was
among the 69 people
killed in the Gulbarg
Society massacre
during the riots that
followed the Godhra
train carnage
of
INDIA LEGAL January 15, 2016 29

30. The court rejected call records as evidence
against Shah in the Sohrabuddin case
saying the home minister of a state
needed to be in touch with his officers.
UNTOUCHED
The CBI did not chargesheet
Amit Shah in the Ishrat
Jahan fake encounter case
stance in the main contention made by the
applicant (Shah) that he was involved in the
case by the CBI for political reasons,” Judge
MB Gosavi held.
CBI director Anil Sinha had then stated
that the agency would study the court order
and decide the further course of action, even
as lawyer Abhishek Singhvi of the Congress
had charged that the investigating agency did
not present the case convincingly.
Small-time gangster Sohrabuddin Sheikh
and his wife, Kauserbi, were on their way
from Hyderabad to Sangli in Maharashtra by
bus in November 2005 when they were inter-
cepted and abducted by Gujarat’s Anti-
Terrorist Squad (ATS) and allegedly killed in
a fake encounter. Tulsiram Prajapati, a wit-
ness to the encounter, was subsequently
killed by the police at Chapri village
in Banaskantha district of Gujarat in
December 2006.
In September 2012, the CBI filed a
charge-sheet in a Gujarat court against 37
accused, including Amit Shah and senior IPS
officers such as DIG Vanzara and superinten-
dent of police Rajkumar
Pandian, under sections
302 (murder), 120B (crim-
inal conspiracy) and 201
(destruction of evidence)
of the IPC. In the same
year, the encounter cases of
Sohrabuddin and
Prajapati were clubbed
together and transferred to
Mumbai following a
Supreme Court order.
Interestingly, four
months after Shah was dis-
charged from these cases,
on April 13, 2015, Judge
Gosavi ordered dropping
of criminal proceedings
against another key
accused, Gujarat IPS offi-
cer Abhay Chudasama. A
day earlier, the same court
had discharged two other
accused—Ajay Patel and
Yashpal Chudasama. They
were all charge-sheeted by
the CBI in 2010. Arrested
suspended IPS officer Sanjiv Bhatt. Zakia
also asked for further investigation by an
agency other than the SIT in the lower court,
but this was turned down on the ground that
it was out of the jurisdiction of the court.
This also forms a ground in the revision peti-
tion, notwithstanding the fact that a plea for
reconstitution of the SIT before the Supreme
Court was turned down. The matter now
rests with the High Court.
NOT CULPABLE?
The case of Amit Shah has also seen interest-
ing twists and turns. A special CBI court in
Mumbai in December 2014 discharged him
in the Sohrabuddin Sheikh and Tulsiram
Prajapati fake encounter cases. “I find sub-
INVESTIGATION/ Modi & Amit Shah Cases
Special
Issue
Special
Issue
30 January 15, 2016

31. Rubabuddin had withdrawn his appeal
against Shah’s exoneration in the Bombay
High Court. Narmadabai, Tulsiram’s mother
has written a letter to Nirjhari, widow of
advocate Mukul Sinha, withdrawing permis-
sion to Jan Sangarsh Manch, the NGO fight-
ing the cases of encounter victims, to fight
cases on her behalf. She alleged that Sinha
and other lawyers had taken her thumb
impression on blank papers and vakalatna-
mas and she apprehended their misuse. She
directed that these not be used to initiate any
court proceedings and also stated that she
was registering this letter.
Interestingly, Rubabuddin was the first to
move the Supreme Court for his sister-in-law
Kauserbi after his brother was killed in an
alleged fake encounter. The probe ordered by
the apex court led to the arrest of a dozen or
more cops.
When the case was handed over to the
CBI, it was its investigations that led to the
resignation of Shah as MoS home and his
arrest later.
Again, is it a mere coincidence that rela-
tives who have been doggedly pursuing the
cases involving the killings of their near and
dear ones for years, were now retreating?
What has changed in these except those who
are in power? A lawyer connected with this
case said: “You said it.”
on April 28, 2010, IPS officer Chudasama
was granted bail on April 28, 2014, and
promptly reinstated in his job in August 2014
and posted in the vigilance squad that works
directly under the Director General of Police
of the state.
This, when the CBI charge-sheet had
described Chudasama as a “trusted officer” of
Shah. The CBI had defended its case against
Shah by submitting his call records and alleg-
ing that he was in constant touch with the
other accused during the time of the
encounter. These included Pandian, then
superintendent of police (ATS), Ahmedabad.
The court, however, rejected this contention
saying that the home minister of a state
needed to be in touch with his police officers
who were part of an anti-terror unit. Charge-
sheeted along with others, Shah spent three
months in jail in 2010 before being bailed
out by the Supreme Court.
WITHDRAWING CASES
There are other coincidences in these cases
which make one question the truth behind
certain matters. For example, earlier this
year, Rubabuddin, brother of Sohrabuddin
made it clear that he would not pursue crim-
inal proceedings in the fake encounter case.
Last month, Tulsiram Prajapati’s family also
decided likewise.
NADA FOR
THEIR TROUBLES
The court did not rely
on witnesses like
ex-DGP RB Sreekumar
and IPS officer Sanjiv
Bhatt (right) while
upholding the SIT
closure report on
Gujarat riots
IL
of
INDIA LEGAL January 15, 2016 31

32. S
IXTY-four files pertaining to
Netaji Subhas Chandra Bose were
declassified in Kolkata by Trina-
mool Congress chief Mamata
Banerjee recently. The files, com-
prising 12,000 pages, immediately became
the talking point for Netaji conspiracy theo-
rists. However, the only “shocking” informa-
tion that the files have revealed is that the
Bose family had been tailed by Intelligence
Bureau sleuths—and, hence, by the ruling
Congress party at the center—long after
Independence.
That is intriguing because had Bose died
in a Taiwan plane crash as has been
explained for long, then, there was actually
no need to put his family—political light-
weights post-Independence—under constant
surveillance even after the British left.
One can, of course, understand the hulla-
HISTORY/Netaji’s Files
The declassification of
some files on Netaji is an
attempt by the strident
Bengali bhadralok to
lionize this leader and by
the present central govt to
use its contents to turn the
screws on political rivals
By Sujit Bhar in Kolkata
What’sthe
“Secret”
inthePapers?
SENSE OF ALIENATION
Subhas Chandra Bose
felt Jawaharlal Nehru had
marginalized him in the
Congress and the
freedom struggle
Special
Issue
Special
Issue
32 January 15, 2016

33. baloo over this declassification and the non-
declassification of several other Top Secret
and Very Secret files held in New Delhi
archives, all on Bose. To put it bluntly, it is
Bose, and not Jawaharlal Nehru or even
Mahatma Gandhi, who is the lionized leader
in West Bengal.
To describe the mood, one just has to refer
to a letter written by Netaji’s nephew Sishir
Kumar Bose to Netaji’s wife, Emilie Schenkl,
in 1955. He wrote: “If you were in India
today, you would get the feeling that in
India’s struggle two men mattered—
(Mahatma) Gandhi and (Jawaharlal) Nehru.
The rest were just extras.”
ALIENATED BENGALI
The reverence with which Netaji was held in
West Bengal then is no different from what it
is today. Mamata’s action in declassifying his
files wasn’t just a political affront, it stemmed
from a deep-rooted sense of alienation that
Bengalis felt at being sidelined from main-
line politics, post-Independence. Till the
advent of CPM leader Jyoti Basu—and that
too for a brief while in the latter stages of his
political career when he called his not being
promoted as prime minister a “historic blun-
der”—Bengal lacked a leader who was prime
leadership material, and that rankled.
That is what keeps Netaji alive in the
hearts of the strident Bengali bhadralok, who
spew arguments and theories to no specific
end. That is the mindset that keeps Netaji
conspiracy theorists alive. Maybe there is fire
somewhere if the smoke is so thick. That is
what pushed members of the Bose fami-
UNI
“The blunt truth is that even if all files are
declassified, revealing ghastly secrets, none of
its findings would be legally enforceable today.”
—Arunava Ghosh, former politician
ENIGMA LIVES ON
Family members of Netaji
Subhas Chandra Bose
present his portrait to
Prime Minister Narendra
Modi in October
of
INDIA LEGAL January 15, 2016 33

34. “I am sure the current dispensation
wishes to use its contents to turn the
screws on its political rivals.”
—A retired political observer
HEATED EMOTIONS
Followers of Netaji
organize a padyatra
in Kolkata in April
2015, demanding
revelation of the truth
regarding his death
ly—relative nobodies—right into the main-
stream of state politics.
But what do the declassified files actually
tell? They are full of the inane to the mun-
dane. Petty matters of the Bose family—the
birth of a child, the growing up of Netaji’s
daughter Anita Bose (Pfaff) and such—noted
with care as if that was what state secrets
look like.
Meanwhile, debate rages on about
whether the Union government has any
moral right now to hold on to the rest of the
files. This, when it had promised before the
elections in 2014 that it would declassify the
files if it came to power.
HISTORICAL IMPORTANCE
As emotions run high, it is time to look at
what possible positions one can take if very
specific bits of information—and ghastly
ones at that—are indeed contained in the
yet-to-be declassified files. To objective
eyes and ears, a total declassification would
be welcome because that very act would
add value to our democracy and to the his-
tory of the Freedom Movement.
According to former politician and ace
lawyer Arunava Ghosh, the declassification
would “enrich history for sure, but the bogey
of ‘relationships with foreign powers being
spoiled’ is bunkum.” That is what the Union
government has claimed in not agreeing to
declassify the rest of the documents. He
points to the acceptance of war crimes by
Japanese soldiers in Korea. The result was a
decorative “sorry”.
What does it all lead to?
The Netaji files bogey has been scripted
by different “authorities” and “experts”. The
Japanese turned against him, say some,
especially since the timing was suspicious.
Bose, then 48, allegedly died in a plane
crash in Taiwan on August 18, 1945, three
days after Japan’s surrender to the Allied
Forces. Others are sure it was the Soviet
Union—“Netaji went to Stalin for refuge,
but the dictator sent Bose to Siberia instead
and had him executed.” All, however,
accept that the British would not be liable
to say sorry, because “they were the original
crime bosses anyway”.
“If it were the Russians,” says Ghosh, “it
would be stupid for anybody to expect the
dispensation of Vladimir Putin today to
take any blame for that act. It would be stu-
pid for any Indian agency, leave alone the
government, to try and apportion such
blame.” This, then, leads to a position
where the government should not be wor-
ried about the fallout of the declassification
anyway. While the declassification could
lead to fingers being pointed at the
Congress, the fact remains that Mamata
has openly courted this party, specifically
on the Bihar elections platform.
LEGAL ANGLE
If Japan were responsible for Netaji’s
death, then it would only have to repeat the
Korea act and say “sorry”. That is because
there is no legal option open today.
According to Ghosh: “The blunt truth is
that even if all files are declassified, reveal-
ing, in turn, ghastly secrets, none of its
findings would be legally enforceable today.
It is too late. According to Indian laws, a
private claim is not tenable after 12 years,
HISTORY/Netaji’s Files
Special
Issue
UNI
34 January 15, 2016

35. IL
and a government claim, after 20 years.”
He brings up the Winston Churchill
case. The-then British premier had routed
all food grain from Bengal to war-torn UK
in the early 1940s, leaving hundreds of
thousands dead in villages and the streets
of Calcutta. “Have we been able to do any-
thing about this proven fact?” he asks.
“What makes you think anything can be
done about Bose’s death?”
HISTORY & TRUTH
“However, I salute the true patriotic spirit
of Bose,” says Ghosh. “It has often been said
by Gandhians from upcountry that our
Independence came primarily through
peaceful means, through satyagraha. They
conveniently forget the huge amount of
bloodshed that preceded Independence.
Yes, these files must be declassified for the
sake of history, because history deserves
the truth,” he says.
A retired political observer (formerly of
the CPM) has a different angle. “I don’t
believe the government’s theory that
declassification would ‘prejudicially affect
relations with foreign countries’,” he says. “I
believe there would be stories of Indian
political wrangles being revealed instead.”
Bose wrote a letter in 1939 to his
nephew Amiya Nath Bose, where he said:
“Nobody has done more harm to me than
Jawaharlal Nehru.” But Bose was in poli-
tics, and he had to keep good relations with
Nehru and he tried. Says the observer: “If
you have to live in the water, you cannot
afford to quarrel with the crocodile.”
So why would the Union government
not declassify the rest of the files, held
secret for over 60 years? “I am sure the cur-
rent dispensation wishes to use its contents
to turn the screws on its political rivals,”
says the observer with a smile. “The same
way that earlier dispensations had kept the
lid tight on them.”
Ghosh says that in the end, the histori-
cal significance of the contents of the file
could well justify opening them up for the
public. “Where Netaji went, and how and
where he died may still remain shrouded in
mystery, but what we would come to know
was where he stood vis-à-vis the political
scenario of the country at that time.
Historians would be able to draw a clearer
picture of the Freedom Movement, and our
leaders would show up to be more human,
down from the pedestals we have put them
on. That would be the gain.”
To objective eyes and ears, a total declassifi-
cation would be welcome because that very
act would add value to our democracy and
to the history of the Freedom Movement.
FEW ICONS TO
BANK ON
(L-R) West Bengal CM
Mamata Banerjee’s
keenness to have the
Netaji files declassified
stems from a sense of
alienation that Bengalis
feel in national politics
Jyoti Basu, the only
Bengali politician of prime
ministerial mettle
of
INDIA LEGAL January 15, 2016 35

36. ACTS & BILLS/ Juvenile Justice
Billof ContentionTHE Juvenile Justice (Care and
Protection of Children) Amendment
Bill 2015 was finally cleared by the
Rajya Sabha on December 22. Having
already been passed by the Lok Sabha,
it now needs President Pranab Muk-
herjee’s assent to become law. The
amended bill was tabled in parliament
last year in the wake of the public out-
rage over the 2012 brutal gang rape of
a 23-year-old paramedical student in a
moving bus in Delhi. Among those
charged with the heinous crime was a
juvenile who was let off after serving a
three-year detention.
The new juvenile bill, which has
courted much controversy, facilitates
juveniles (16 years of age and above) to
be tried and punished as adults for
heinous offenses like rape and murder.
Critics of the bill have questioned its
constitutionality on the ground that it
does not adequately protect child
rights. Many also feel that the bill vio-
lates the UN Convention on the Rights
of the Child which mandates that all
children under the age of 18 years be
treated equally. India is a signatory of
the convention.
Votaries of lowering the cut-off age
for juveniles are of the view that
crimes committed by teenagers are on
the increase and leniency should not
be shown to those guilty of heinous
acts. Harsh punishment, they believe,
will serve as a deterrent.
There are several grey areas and
varying shades of opinion on this high-
ly emotive issue. MEHA MATHUR
and SUCHETA DASGUPTA collated
the views of lawyers, politicians and
social workers on the amended bill:
EnakshiGangulyThukral,
co-founder,Centrefor
ChildRights
“I am deeply disappointed. The legis-
lation is influenced by lynch mob and
media hysteria. Even women’s groups
are saying that women’s safety should
not be at the cost of putting children
into prisons. The two should not be
pitted against each other. The juve-
nile justice system is not about letting
children go free, but about putting
them into a separate system. And age
18 needs to be the age for juveniles.
We are also working with child sexual
abuse victims, and it’s not that we
have no understanding of their pain.”
VrindaGrover,lawyer,women’srightsactivist
“It’s a very unfortunate and regressive move. They have completely mis-
understood that the Juvenile Justice Act was in keeping with the prin-
ciples of international law, the entire purpose of which was reformative.
I represent women victims and I am not sympathizing with rapists, but
the Act was based on scientific analysis of the age for juveniles.
Under the new bill it’s the Juvenile Justice Board which will decide
the maturity of the person, even though these boards lack the expert-
ise. The parliament has done this without putting proper systems in
place. We have only played out to public sentiments which can be
uninformed sentiments. And we have only ensured that the problem
will get worse as they will turn into hardened criminals.”
Special
Issue
36 January 15, 2016

37. “We can do nothing about that
young man (the Nirbhaya rapist). He
will come, he will go his own way in
life and, God willing, be a decent cit-
izen after this; if it is possible. But it
will stop a large number of boys
who have got into this.”
—Maneka Gandhi,
union minister for women and
child development, in the
Rajya Sabha
“What is the harm in taking cog-
nizance of public sentiments? The
five-hour debate was by and large
rational. We now need to be gracious
about the fact that the entire House
except the CPM passed the bill,
acceding to what the people wanted.
Good bill, very good bill, ideal bill, we
can’t wait indefinitely for an ideal bill.”
—Derek O' Brien, TMC leader, in
The Indian Express
KavitaKrishnan,secretary,AllIndia
ProgressiveWomen’sAssociation(AIPWA)
“It sets a very unfortunate precedent as no law
should be enacted without due diligence. The gov-
ernment should have consulted with women’s
groups who work with rape survivors. AIPWA,
AIDWA, Pragatisheel Mahila Sangathan, Jagori,
Saheli have almost unanimously stood against this
bill. It has been our long-held position. The Justice
Verma Committee rejected both death penalty and
sending juveniles into the adult courts and jails.
The Committee, quoting extensively from stud-
ies of international experience, and praising the
maturity of women’s organizations on the issue,
noted: ‘We have heard experts on the question of
reduction of the age of a juvenile from 18 to 16
for the purpose of being tried for offences under
various laws of the country. We must confess that
the degree of maturity displayed by all the women’s
organizations, the academics and a large body of
thinking people in the way they have viewed this
incident humbles us....We are of the view that the
material is sufficient for us to reach the conclusion
that the age of ‘juveniles’ ought not to be reduced
to 16 years.’ On a more specific note, I would
say the parents’ anger in this case is justified. But
retribution does not equal justice for society as
a whole.”
Voices from parliament
“If tomorrow you catch hold of
a young ISIS terrorist, you will
say bring down the age by
another two years. The ques-
tion is not about the age but
the kind of crime that has
been committed.”
—Sitaram Yechury,
CPM general secretary, in
The Indian Express
“We are emotional, worried about
safety of women. At this juncture,
what is the hurry? Child crime is
static and not gone up… The parlia-
mentary standing committee as well
as Justice Verma Committee were
against reducing the age. This is a
concern. Please send it to a select
committee.”
—Kanimozhi,
DMK leader, in the Rajya Sabha
of
INDIA LEGAL January 15, 2016 37

38. KailashSatyarthi,Nobelpeacelaureateand
founder,BachpanBachaoAndolan,onTV18
“The new bill has provisions that were not there in
the old law. These children, aged between 16 and
18, who commit heinous crimes like rape and
murder will not be sent to a jail along with other
criminals but rather will be sent to a special place
of safety, till they turn 21. After which they will be
reviewed and if it is proven that he is reformed
then it is fine. But if not he will be sent for refor-
mation again.
I feel the Juvenile Justice (Care and Protection
of Children) Amendment Bill 2015 has many good
things as age is not the only factor in it.”
DrRanjanaKumari,director,Centrefor
SocialResearch
“I am very happy with the Rajya Sabha passing the bill. I was
campaigning for it, despite facing criticism. One problem with
the Juvenile Justice Act, 2000, was that it did not consider the
nature of crime. It was not acting as a deterrent. It’s important
to bring in a more stringent law. The power to decide on the
maturity of the person and quantum of punishment has been
given to Juvenile Justice Boards under the new bill. I don’t see
a reason to mistrust them. If you are, you are questioning the
complete system. Rather than questioning, we should now be
streamlining the system. I too believe in child rights but the
nature of crime will have to be considered. Rape and murder
are not juvenile crimes.”
KarunaNundy,advocate,
SupremeCourt
“The bill is very problematic. For a
deeper examination of the bill as well as
the statistics that seem to have necessi-
tated it, it should have been sent to a
select committee. If the juveniles leave
as unreformed adults, crimes against
women will go up as a result of it. It is
indeed a tragedy that it has been passed
in the Rajya Sabha. The parliamentari-
ans and other louder voices have failed
to look at the evidence that would actu-
ally reduce crimes against women.”
ACTS & BILLS/ Juvenile Justice
Special
Issue
38 January 15, 2016

39. Legal
India
The Best of
NJAC-Collegium
controversy...................Page 40
Need for judicial
reforms..........................Page 45
Yakub Memon’s
hanging.........................Page 48
Maggi ban......................Page 54
Arvind Kejriwal-Najeeb
Jung imbroglio..............Page 60
Muslim personal law ... Page 64
Appointment of state
Page 70
Sex workers as paralegal
volunteers.................... Page 74
Sexual misdemeanors
in Kerala churches...... Page 80
Judicial intervention
in Santhara ritual.......Page 86
Interview with ICJ
president, Judge
Ronny Abraham..........Page 90
Landmark ruling on
abortion...................... Page 92
Amateur sex videos......Page 96
NDIA EGALLI

40. LETTER FROM THE EDITOR
law not found in the text of Article 124. The inter-
pretation of the word “consultation” was in the
light of the constitutional debates, in which Dr BR
Ambedkar rejected giving primacy to the views of
the CJI and chose a mid-path of effective consulta-
tion with the CJI.
In the Third Judges Case in 1998, presided by
an 11-judge bench, the Attorney-General (A-G) at
the outset submitted that the government does not
want to seek review or reconsideration of the
rationale laid down in the Second Judges Case. The
arguments were addressed only on the question of
reference made by the president.
The Third Judges Case expanded the numerical
strength of the collegium to the CJI plus four
seniormost judges for elevation to the Supreme
Court and transfer of the judges of the High Court.
The CJI, plus two seniormost judges, were to be the
collegium for appointment of judges and chief jus-
tices of High Courts. It was further laid down that
the views of the concerned seniormost state judge
in the Supreme Court should be taken.
Since there were large numbers of vacancies in
high courts that remained unfilled, the judgment
in the Second Judges Case directed filling up the
vacancies immediately. It prescribed the time-
frame of the procedure. It was also stated that the
Supreme Court collegium is an expert and the best
judge to appoint suitable persons. Thus, it held that
executive interference in the appointments is obvi-
ated, which ensures the independence of the judici-
ary. The purpose for which the collegium system
was evolved utterly failed. Neither were the vacan-
cies filled up in time nor were efficient and suitable
judges appointed to high courts to dispose civil,
criminal and tax matters expeditiously. Cases of
HE long-awaited tantalizing Supreme
Court judgment in the NJAC case was
out in the public domain on October
16—about four months after the con-
clusion of hearings. The court essen-
tially struck down as unconstitutional the amend-
ment that validated the National Judicial
Appointments Act passed by parliament and thus
paved the way for the continuance of the collegium
system for the appointment of judges to the higher
judiciary. Union Law Minister Sadananda Gowda
reacted by saying the judgment was surprising.
Arun Jaitley called it the “tyranny of the unelect-
ed”. As usual, the declared and undeclared spokes-
men for the Congress party and other opposition
parties attacked Jaitley and hailed the judgment.
They were obviously guided by political interests,
forgetting that all the parties had unanimously
passed the legislation in parliament. Justice RM
Lodha, the former CJI, advised a no confrontation
course, but counseled improvement in the col-
legium system.
To put things in perspective, one must exam-
ine the background and contours of the appoint-
ments issue. The “First Judges Case” in 1981,
presided by a seven-member bench, interpreted
the words “shall in consultation with CJI in Article
217” to mean effective and meaningful consulta-
tion without giving primacy to the views of the
CJI. The Second Judges Case in 1993, presided by
11 judges, interpreted the words “consultation in
Article 124” to mean concurrence and that the
views of the CJI along with two seniormost judges
would be binding on the president.
This is how the collegium system was evolved.
The interpretation was essentially a judge-made
T
YOUR LORDSHIPS,
WE BEG TO DIFFER
INDERJIT BADHWAR
Special
Issue
40 January 15, 2016

41. JUDICIAL
CHURNING
(Above) The
landmark
judgment on
NJAC Act by
the apex
court raises a
number of
questions on
the future of
Indian
judiciary
this nature are still pending for over 10 to 15 years.
Also, a strong sense got ingrained in the high
court collegium that it must remain obeisant to
the Supreme Court collegium and to the state
judge in the Supreme Court. All recommendations
made by the high court collegium had to be in
accordance with the wishes of the apex court col-
legium and state judge or there was the imminent
risk of these being rejected. The reasons for rejec-
tion are not even made known to the high court
collegium. For this reason, the vacancies in the
high courts could not be filled up, and at times,
unsuitable persons got elevated.
T
he lack of transparency and objectivity in
the functioning of the collegium created lot
of discontent among jurists and civil socie-
ty. The Second Judges and Third Judges cases per-
mitted recommendations with dissent but the
collegium intelligently avoided recommending
any case with dissent to prevent indulgence of
the executive.
The recommendations for appointment,
non-appointment, transfer and complaints against
the judges are not subjected to RTI and judicial
review under the pretext that the litigative debate
would result in erosion of credibility of the decisions.
In the case of a junior judge to be elevated
overlooking his senior, it was said that the
outstanding merit of the person recommended
need not be compared with that of the senior judge
bypassed. Only the outstanding merit of the per-
son recommended be stated. The judgment of out-
standing merit is also a subjective one. The col-
legium system has been criticized by Justice
Punchi as judicial oligarchy.
There were abortive attempts to establish a
Judicial Commission in 1990 and 2003. The UPA
government too was strongly in favor of creating a
Judicial Commission. Both the houses of the pres-
ent parliament unanimously passed the constitu-
tional amendment to incorporate Article 124A and
enacted the NJAC Act. The object of NJAC was to
bring in transparency and objectivity in the matter
of appointments to the higher judiciary which was
being rampantly breached in the collegium system.
The basic challenge against the NJAC before
the Court was that it impinges the independence
of the judiciary which is one of the postulates of
the basic structure of the constitution. The consti-
tution bench, presided by Justice JS Khehar, by 4:1
struck down the NJAC and the constitutional
amendment as ultra-vires as it scuttles the judicia-
ry’s independence. The wisdom of the judg-
The lack of transparency and objectivity
in the functioning of the collegium
created lot of discontent among jurists
and civil society.
Anil Shakya
of
November 15
INDIA LEGAL January 15, 2016 41