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NDIA EGALL
August 31, 2016 `100
www.indialegalonline.com
I STORIES THAT COUNT
5650
NayantaraRoy:
LGvsKejriwal:
BattlingfortheDurbar
JusticeKSreedharRao:
WhyBlanket
ProtectionforJudges?
Ajith Pillai
Encouraging Child Labor 38
Sujit Bhar
Mystery
of Netaji’s
Gold
34
Ramesh Menon
Poisonous Milk 26
KASHMIR PLEBISCITE
Bikram Vohra
Forgotten POWs 60
“Don’tmakeafool
ofyourself…”ThisadmonitionfromanAmericanprofessorcouldwellapplytotheeminent
lawyer’scontroversialadvocacyofareferenduminthetroubledstate
ByInderjitBadhwar88
PrashantBhushan
India Legal 31 August 2016
India Legal 31 August 2016
AUGUST31,2016
Dial D for Defamation
The apex court rapped Tamil Nadu CM J Jayalalithaa for filing a case too many
against her critics and has asked her to exercise tolerance. INDIA LEGAL TEAM
Tread Carefully, Prashant Bhushan
The senior advocate calling for a plebiscite in the Valley distorts history and gives
moral firepower to those hell-bent on preventing a resolution of the Kashmir crisis
within the framework of the Indian Constitution, writes INDERJIT BADHWAR. Also,
INDIA LEGAL BUREAU lists the several controversies that cast a shadow on the
integrity of the champion PIL lawyer
8
LEAD
22
Mystery of Netaji’s Gold
On July 29, a PIL was filed in Calcutta High Court asking for a probe into the
missing “treasure”. Could this stir another hornet’s nest? SUJIT BHAR
34
26
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Editor
Inderjit Badhwar
Managing Editor
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Deputy Managing Editor
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Executive Editor
Ajith Pillai
Bureau Chiefs
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Toxic Milk
The top court has called for amending laws so that those adulterating the
nourishing drink are punished more stringently. RAMESH MENON
SUPREME COURT
4 August 31, 2016
COURTS
REGULARS
Quote-Unquote ........................................................... 6
Supreme Court.......................................................... 30
Courts.........................................................................32
National Briefs..................................................... 37, 49
International Briefs......................................................74
Campus Update.........................................................75
People ........................................................................82
Haryana and Delhi deny the existence of Najafgarh Jheel, claiming it is
merely a depression in the ground where water collects. But the water
body finds mention in several official records. NAYANTARA ROY
The Lake that Never Was 68
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
50
The Delhi High Court
recently ruled in favor of
the lieutenant-governor
in the turf war between
him and the chief minis-
ter, Arvind Kejriwal. Its
judgment is in line with
constitutional provisions,
says additional solicitor
general Sanjay Jain.
NAYANTARA ROY
“Capital Belongs to All”
Going against the Geneva Convention, 54 Indian soldiers
captured by Pakistan during the 1971 war were never sent back. The
Indian government too has been apathetic. BIKRAM VOHRA
The Forgotten 54 60
76
HUMAN RIGHTS
The Indian High Commission has notched up unpaid dues worth
millions to London’s transport authorities as its cars refuse to pay
congestion charges. SAJEDA MOMIN
Fee or Tax?
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
INTERVIEW
64The Dalit community has consolidated itself like never before,
emerging as a threat to the BJP in Gujarat and Uttar Pradesh.
KALYANI SHANKAR
The Una Uprising
POLITICS
ENVIRONMENT
DIPLOMACY
A new law proscribes employing children below the age of 14 but
makes exceptions for those who work in family businesses outside
school hours, laying it open to misuse. AJITH PILLAI
38Encouraging Child Labor
While the Judges Protection Act of 1985 accords protection to judges
for acts done during the discharge of their duties, they are also made
liable for civil, criminal and disciplinary action on the advice of the
High Court or the President. JUSTICE K SREEDHAR RAO
56Blanket Protection?
LEGAL EYE
Indirect taxes have been the bane of the common man. With a com-
mon tax regime now in place, will corporates pass on the benefits to
consumers? SUMIT DUTT MAJUMDER
44The GST Dream
5INDIA LEGAL August 31, 2016
FOCUS
ECONOMY
Cross-Border Heartbreak
He travelled to Pakistan without a visa to rescue his lady friend
from forced marriage. Now his parents are fighting a legal battle to
bring him home. NEETA KOLHATKAR
54
SPECIAL STORY
80The opinion of the judiciary should be reflected only through judgments
and not through oral observations, be it on Kashmir or any other
contentious issue. DEVADATT KAMAT
No Sermons Please!
MY SPACE
“I have ended my fast today
because I want power. I
want to be able to have the
power to repeal AFSPA from
Manipur. I want to become
the Chief Minister of Manipur
to be able to do this.”
—Irom Sharmila Chanu, while
addressing a press conference on
the day she broke her 16-year-old
hunger strike
“All our PMs have done
their best to improve
relations with our
neighbours but yeh
padosi hai ki maanta hi
nahin hai (this neighbour
does not agree).”
—Home Minister Rajnath Singh,
referring to Pakistan’s
continuing support to
terrorism, on NDTV.com
“It makes me angry that people are
running shops in the name of cow
protection… Some people indulge
in anti-social activities at night, and
in the day masquerade as cow
protectors.”
—PM Narendra Modi, at a townhall-style speech to
mark the second anniversary of “MyGov initiative”
in New Delhi
“I can say with
confidence there
has never been a
man or a woman—
not me, not Bill
Clinton, nobody—
more qualified than
Hillary Clinton to
serve as president
of the United States
of America.”
—US President Barack
Obama, endorsing the
next presidential
candidate Hillary Clinton
at Philadelphia, US
“You know we have a treaty with Japan,
where if Japan is attacked, we have to
use the full force and might of the United
States. If we’re attacked, Japan doesn’t
have to do anything. They can sit home
and watch Sony television, OK?"
—Republican candidate Donald Trump, at a
campaign event in Iowa
“Goal of Team India
at the Olympics: Rio
jao. Selfies lo. Khaali
haat wapas aao (go
to Rio, take selfies,
return empty-
handed. What a
waste of money
and
opportunity.”
—Author Shobhaa
De, on India's
listless performance
at the Rio Olympics,
on Twitter
QUOTE-UNQUOTE
“Ms. De, kindly run on the
hockey pitch for 60 mins
& hold a rifle like Abhinav
and Gagan. Bit tougher
than u think.”
—Hockey player Viren
Rasquinha, tweeting in
response to Shobhaa
De’s criticism of Indian
sportsmen
6 August 31, 2016
India Legal 31 August 2016
LEAD/ Kashmir Plebiscite
It is not anti-national to
express dissent but in
the light of the current
crisis in Kashmir, it is
inappropriate for people
of stature to be shooting
from the hip on issues
such as referendum and
plebiscite
By Inderjit Badhwar
A Lesson
Mr Bhushan
FAULTY
UNDERSTANDING
Prashant Bhushan
raised the referendum
issue on flawed
premises
for
8 August 31, 2016
S
INCE I started covering
the trials and tribulations
of Jammu & Kashmir
starting in 1986 as a
reporter and editor, I have
met, interviewed and kno-
wn every important actor
on the scene—chief minis-
ters, ministers, sepa-
ratists, clergymen, exiled Pandits, slain lead-
ers, bereaved mothers, governors, intelli-
gence officials, Pak-trained border crossers,
prime ministers in Delhi. You name them.
My views on Kashmir, my understanding
of “Kashmiriyat” and the socio-political psy-
che that fuels this passionate, ineluctable
identity-urge were derived from the people
and wisdom of that soil and not from propa-
gandist-posturing by either Delhi or Rawal-
pindi and its paid apologists and hit men. My
outlook is well-known. The problem is
between Delhi and the people of Kashmir
and not between India and Pakistan. Pak-
istan has no role to play in this except that of
a blood-stained mischief-maker into whose
hands Indian governments and politicians
have stupidly played since 1948.
That is why statements by lawyers like
Prashant Bhushan, the uncrowned Emperor
of India’s PIL domain, advocating a ple-
biscite of referendum in Kashmir, distort his-
tory and give moral firepower to those hell-
bent in preventing a just resolution of Kash-
miri grievances within the Indian union.
There are many who speak like Bhushan.
Particularly the Pakistani rulers and their
surrogates in Kashmir. And possibly Indian
“liberals” and outfits like People’s Union for
Civil Liberties (PUCL) of which Bhushan was
an integral leader. Pakistani leaders will nat-
urally talk this language because it fits the
ideological underpinning of their state and
raison d’etre. For them, historical distortion
is a chronological compulsion because ple-
biscite means a choice between India and
Pakistan, and not azaadi (independence)
VALLEY OF DISCONTENT
J&K has erupted in protests
on several occasions since
1953, the latest being the
death of Burhan Wani
9INDIA LEGAL August 31, 2016
UNI
which most Kashmiris dream about, albeit
with different nuances and interpretations.
When a man of Bhushan’s eminence talks of
a referendum, he provides further ideological
ammunition to pro-Pakistani elements with-
in Kashmir—the hardliners bent on sabo-
taging peaceful solutions between Delhi and
Kashmir’s leaders. Positions harden. The
cycle of violence escalates.
W
hen senior lawyers like Bhushan
talk plebiscite, saner voices in
Pakistan like Air Marshal Asgar
Khan, a war hero, who openly says on
Pakistan TV that his own nation was the
aggressor in Kashmir, and that Kashmiri
integrity was protected by the Indian Army
at the invitation of the Kashmir government,
and therefore Pakistan has no legitimacy in
Kashmir, take a back seat. When the pro-
plebiscite (read pro-Pakistani) sentiment
gains ground in Kashmir, armed militancy
thrives. Leaders of great stature like Abdul
Ghani Lone, Mir Mustafa, Qazi Nissar,
Maulana Farooq who were willing to find
solutions within India, are brutally slain by
outfits like the Hizbul-Mujahideen.
Today’s uprising in the Valley is a replay of
many similar upheavals from the past—in
1953 when Sheikh Abdullah was arrested; in
1964; in 1984 when Jammu
Kashmir Liberation Front
(JKLF) founder Maqbool
Butt was hanged; in 1990
when over three lakh mourn-
ers came out on the streets
after the killing by security
forces of militant Ashfaq
Majid.
1990 was a watershed
year, I wrote in a cover story
for India Today (April 30,
1990). Even though there we-
re mass protests in earlier
years, the separatist forces
had identifiable leaders who
espoused secularism and th-
ere were few, if any, terrorist
assassinations of innocents.
“But today, the movement
is dominated by the money
provided by Pakistan and
Saudi Arabia and the muscle power of the
pro-Pakistan, fundamentalist Jamaat-i-Is-
lami and its Hizbul Mujahideen and Allah
Tiger terror groups. The Jamaat is supposed
to be strong in Baramula and Sopore and the
“secular” JKLF in Srinagar and Anantnag.
But this is now merely semantics.
“For what once used to be a mass move-
ment for the preservation of ethnic identity,
of Kashmiriyat, of which Article 370 was sup-
posed to be the symbolic guardian, has been
consumed by a fundamentalist fury that gives
the movement sustenance and spiritual guid-
ance. The liberal spirit of sufism that had so
infused the valley has now been exorcised.”
The words I wrote then still ring true as
Prime Minister Modi gropes for a solution
following the killing of Burhan Wani. “The
bottom line of the militants is secession. And
the bottom line of the Indian government
cannot go outside the constitution. The two
positions are irreconcilable. The time for the-
orizing, post-mortems and historical regurgi-
tations is over. From the secessionists’ view-
point, the insurgency has the Indian govern-
ment exactly where it wants it—divided in
dealing with the problem.
“And temporary reverses must not be
allowed to reverse the process of a sustained
reclamation. The country can no longer
The plebiscite
was also to be
conducted
regionally,
including in
Gilgit and
Baltistan. But
Pakistan
has ceded the
region to China,
which has
invested
billions there.
MISGUIDED FURY
Burhan Wani (2nd row,
center) became a poster
boy for the young
generation of Kashmiri
militants
10 August 31, 2016
LEAD/ Kashmir Plebiscite
afford to behave like a tenant put on notice to
vacate somebody else’s property.”
I quote again from that article written in
1990 because there’s such a strong sense of
déjà vu: “The bulk of the people follow what-
ever institution wields the big stick. Today,
that stick is in the hands of the militants. The
primary task before the government is to re-
establish its writ and show that it has the
political will to do so. To demonstrate that
the country will not compromise an inch of
its territory. It was the absence of this mes-
sage during the Farooq regime and a lack of
clarity of purpose under VP Singh’s govern-
ment that has hobbled the state administra-
tion and given a certain strategic advantage
to the secessionists.
“Confusion and delay in regaining India’s
lost administrative turf in Kashmir will sim-
ply give Pakistan and the militants the most
precious resource they can ask for—time.
Their strategy is to wear New Delhi down
to such an extent that the cost of maintaining
Kashmir will become an impossible burden;
or to keep a ready-made Pakistan inside
India to be used by Pakistan to create con-
stant problems.”
“The view from New Delhi is that in the
long run, time is on its own side because in
the peaks and valleys that characterize
terrorism all over the world, the fundamen-
talists, when they realize that they can’t really
break loose of India’s grip, when they
begin suffering economically, will
wear down and seek a solution with
the Centre. But this is precisely the
kind of thinking that led to escalating
violence in Punjab.
“In Kashmir the wait-and-wear-
down attitude, considering how per-
ilous the situation already is because
of years of fence-sitting, is bound to
make the problem even more intrac-
table. The longer, for example, that
security forces wait for orders to hit
known training centers inside the val-
ley’s villages—so far more or less out
of bounds—the more powerful will
terrorist cadres become.”
This is why the Prashant Bhu-
shans of this world must exercise
extreme caution in their utterances
on referendum or plebiscite while simultane-
ously claiming – later—that Kashmir is an
integral part of India. Because the damage is
already done.
Be it far from me to label Bhushan—or for
that matter anybody who criticizes the
Indian state—an “anti-national”. I am not in
favor of dividing the country into nationals
versus anti-nationals for political gain. Nor
do I subscribe to the idiotic theory that pub-
lic denunciation of corruption and proclama-
tion of the desire for freedom from religious
fanaticism, casteism, corruption and repres-
sion, or the expression of a divergent view on
international policies is secessionist or sedi-
tious. Our Founding Fathers encouraged free
speech and dissent with reasonable res-
traints, with the burden of proof on the state
to prove that public utterances had actually
resulted in harm to India’s integrity. And I
applauded the Supreme Court for striking
down the pernicious censorship of the social
media through 66-A of the IT Act.
S
o to Mr Bhushan I say, of course,
express yourself by all means, but then,
be ready to face the heat from those
who would expose your statement as a bogus
distortion of history. Bhushan’s argument
championing referendum in Kashmir is built
on historical quicksand, and he would do
well to listen to renowned South Asian
The UN
resolution is
very clear on
plebiscite. There
were three
sequential and
conditional
steps. And the
first step was
that Pakistan
was to
demilitarize to
the satisfaction
of the UN
body to be
established.
ISSUES OF IDENTITY
The mass movement was
originally for preservation of
Kashmiriyat
11INDIA LEGAL August 31, 2016
UNI
scholar Christine Fair, author, and professor
of Peace and Security Studies at the presti-
gious Georgetown University in the US.
At a well-publicized seminar (available on
YouTube), Ms Fair upbraided a Pakistani
Fulbright Scholar for “making a fool” of him-
self in saying that India was guilty of violat-
ing international law and promises to the
Kashmiri people by denying them the UN-
guaranteed right to a plebiscite on joining
India or Pakistan. She could well have been
talking to Prashant Bhushan.
The Fulbright scholar had argued that the
UN pledge of a plebiscite gave Pakistan the
legal basis for being a party to the Kashmir
dispute. He also said that Islamist Jehadis
were created and funded by the US and the
CIA when the Soviets entered Afghanistan.
The Kashmiri crisis, he said, preceded the
Jehadi creation. “The Soviets were pushed
out and the US left Pakistan and Afghanistan
in the lurch.”
Professor Fair’s retort is a textbook exam-
ple of how to counter historical disinforma-
tion. I reproduce parts of it verbatim:
“Have you read the UN Security Council
Resolution of 1948 (on plebiscite in Jammu
and Kashmir)?” The Fulbright Scholar
admitted he had not. She admonished him:
“First thing I would ask you is to read it. Go
to the UN Security Council Website and read
that fabulous resolution. Every Pakistani
points to it but nobody has actually read it.
Take the actual version and compare that to
the claims made by Pakistan’s permanent
representative to the UN and you are going
to understand your confusion.
“T
he resolution is actually very clear.
There were three steps. They were
sequential, and they were condi-
tional. Very first step was that Pakistan was
to demilitarize to the satisfaction of the UN
body to be established. Then, conditioned
upon the UN being satisfied that this demili-
tarization (was complete), India was also
supposed to de-militarize with a presence
being permitted to defend itself against
Pakistani aggression.
“The third, both those steps having been
taken in sequence to the preference of the
UN, then the plebiscite would be held. So all
those Pakistanis who are so upset about the
plebiscite that never happened, they have
their own government to blame because
Pakistan never fulfilled the first necessary
condition. So I’m going to encourage you to
read that before ever making a fool of your-
self again by presenting it in public. So just
do yourself a favor by reading that document.
“Second, I want you to learn a little about
your own country’s Afghanistan policy. Sir,
do you know that it was Zulfiqar Ali Bhutto
who began the ISI cell in Afghanistan? It was
also Bhutto who began setting up what
became the “Seven Donkeys” before even the
Soviet Union crossed over. Did you know
this, Sir? (Answer: No.)
“So this idea that somehow the United
States used Pakistan in some sort of effort to
expel the Soviets is a completely incorrect
reading of your own history. After King Zahir
Shah (of Afghanistan) was ousted and Moha-
mmed Daoud Khan came to power and
began pro-Soviet policies, driving the Isla-
mists into Iran and Pakistan respectively,
Zulfiqar set up an ISI cell so he could use
those disenchanted and disenfranchised
Islamists as vectors of Pakistan’s policies in
Afghanistan. Did you know that we first
sanctioned Pakistan in April of 1979 because
of advances made in its nuclear weapons pro-
gram? If we were so interested in sucking it
into our evil Jehad designs we sure didn’t
AirMarshalAsgarKhan
ofPakistan
A war hero, he
openly says on
Pakistan TV that
his own nation
was the
aggressor in
Kashmir, and
that Kashmiri
integrity was
protected by the
Indian Army.
12 August 31, 2016
LEAD/ Kashmir Plebiscite
make that difficult for our-
selves because when the
Soviets did cross over we had to
do a bunch maneuvering to get
a waiver. And do you know that
the first of that money did not
get into Pakistan until 1982
because of that requirement to
get a waiver?
“So before you go blaming
the United States for using and
abusing poor Pakistan, you
should familiarize yourself
with your own history because
Pakistan has been instrumen-
talizing Islamists long before
the Americans even knew what
an Islamist was. Now going to
your next point about leaving
Pakistan high and dry. Let’s
talk about the Pressler Amendment. The
Pressler Amendment was actually designed
so Pakistan can continue proliferating, while
we continue arming you, because we had first
sanctioned you in April 1979. Everyone
understood the name of this game. When we
withdrew in 1990, we withdrew. Pakistan,
however, continued mucking around with
the Islamists. So this idea that the Jehad
today or the Taliban today or the Al Qaeda,
this is really a grotesque empirical error…
that I really don’t quite expect from Fulbright
students because everything you said is a
highly stylized re-telling that you get from
Pakistani media in your curriculum.”
Incidentally, the plebiscite was also to be
conducted regionally—separately for Jam-
mu, Kashmir, Ladakh, Gilgit and Baltis-tan.
But as an analyst correctly points out in an
internet post, the plebiscite /referendum is
no longer valid for other reasons as well:
Because of Punjabi-speaking settlers, the
demographics have changed significantly in
PoK; Pakistan has ceded a part of Kashmir to
China (Shaksgam Valley); China has invested
billions of dollars in Gilgit-Baltistan and
even has some troop presence there.
Would Pakistan be willing to hand over
Gilgit-Baltistan to India—even temporarily?
Handing over Gilgil-Baltistan means China
and Pakistan would no longer share any
borders.
*************************
THE UN RESOLUTION EVERYBODY
TALKS ABOUT BUT NO ONE CARES TO
READ
Resolution 47 (1948)
On the India-Pakistan question submitted
jointly by the Representatives for Belgium,
Canada, China, Colombia, the United
Kingdom and United States of America and
adopted by the Security Council at its 286th
meeting held on 21 April, 1948.
(Document No. 5/726, dated the 21st April,
1948).
THE SECURITY COUNCIL
Having considered the complaint of the
Government of India concerning the dispute
over the State of Jammu and Kashmir, hav-
ing heard the representative of India in sup-
port of that complaint and the reply and
counter complaints of the representative of
Pakistan. Being strongly of opinion that the
early restoration of peace and order in
Jammu and Kashmir is essential and that
India and Pakistan should do their utmost to
bring about cessation of all fighting. Noting
with satisfaction that both India and Pak-
istan desire that the question of the accession
of Jammu and Kashmir to India or Pakistan
should be decided through the democratic
method of a free and impartial plebiscite,
Considering that the continuation of the dis-
pute is likely to endanger international
AuthorChristineFair
She upbraided a
Pakistani
Fulbright
Scholar for
saying that India
was guilty of
violating
international law
and promises to
the Kashmiri
people by
denying them
the UN-guaran-
teed right to a
plebiscite on
joining India or
Pakistan.
13INDIA LEGAL August 31, 2016
peace and security, Reaffirms its resolution
38 (1948) of 17 January 1948;
Resolves that the membership of the Commi-
ssion established by its resolution 39 (1948)
of 20 January 1948, shall be increased to five
and shall include, in addition to the member-
ship mentioned in that Resolution, represen-
tatives of... and ..., and that if the member-
ship of the Commission has not been com-
pleted within ten days from the date the
adoption of this resolution the President of
the Council may designate such other Mem-
ber or Members of the United Nations as are
required to complete the membership of five;
Instructs the Commission to proceed at
once to the Indian subcontinent and there
place its good offices and mediation at the
disposal of the Governments of India and
Pakistan with a view to facilitating the taking
of the necessary measures, both with respect
to the restoration of peace and order and to
the holding of a plebiscite by the two
Governments, acting in co-operation with
one another and with the Commission, and
further instructs the Commission to keep the
Council informed of the action taken under
the resolution; and, to this end.
Recommends to the Governments of
India and Pakistan the following measures as
those which in the opinion of the Council and
appropriate to bring about a cessation of the
fighting and to create proper conditions for a
free and impartial plebiscite to decide whe-
ther the State of Jammu and Kashmir is to
accede to India or Pakistan.
A - RESTORATION OF PEACE AND
ORDER
1. The Government of Pakistan should
undertake to use its best endeavours:
(a) To secure the withdrawal from the State
of Jammu and Kashmir of tribesmen and
Pakistani nationals not normally resident
therein who have entered the State for the
purposes of fighting, and to prevent any
intrusion into the State of such elements and
any furnishing of material aid to those fight-
ing in the State;
(b) To make known to all concerned that the
measures indicated in this and the following
paragraphs provide full freedom to all sub-
jects of the State, regardless of creed, caste,
or party, to express their views and to vote on
the question of the accession of the State, and
that therefore they should co-operate in the
maintenance of peace and order.
2. The Government of India should:
(a) When it is established to the satisfaction
of the Commission set up in accordance with
the Council’s Resolution 39 (1948) that the
tribesmen are withdrawing and that arrange-
ments for the cessation of the fighting have
become effective, put into operation in con-
sultation with the Commission a plan for
withdrawing their own forces from Jammu
and Kashmir and reducing them progres-
sively to the minimum strength required for
the support of the civil power in the mainte-
nance of law and order;
(b) Make known that the withdrawal is tak-
ing place in stages and announce the comple-
tion of each stage; When the Indian forces
shall have been reduced to the minimum
strength mentioned in (a) above, arrange in
consultation with the Commission for the
stationing of the remaining forces to be car-
ried out in accordance with the following
principles:
(i) That the presence of troops should not
afford any intimidation or appearance of
intimidation to the inhabitants of the State;
(ii) That as small a number as possible
CLEAR AGENDA
Sheikh Abdullah dreamt of
an independent Kashmir,
certainly not merger with
Pakistan
In Kashmir the
wait-and-wear-
down attitude,
considering how
perilous the
situation already
is because of
years of
fence-sitting, is
bound to make
the problem
even more
intractable.
14 August 31, 2016
LEAD/ Kashmir Plebiscite
should be retained in forward areas;
(iii) That any reserve of troops which may
be included in the total strength should be
located within their present base area.
3. The Government of India should agree
that until such time as the plebiscite admin-
istration referred to below finds it necessary
to exercise the powers of direction and super-
vision over the State forces and policy provid-
ed for in paragraph 8, they will be held in
areas to be agreed upon with the Plebiscite
Administrator.
4. After the plan referred to in paragraph 2
(a) above has been put into operation, per-
sonnel recruited locally in each district
should so far as possible be utilised for the re-
establishment and maintenance of law and
order with due regard to protection of mino-
rities, subject to such additional require-
ments as may be specified by the Plebiscite
Administration referred to in paragraph 7.
5. If these local forces should be found to be
inadequate, the Commission, subject to the
agreement of both the Government of India
and the Government of Pakistan, should
arrange for the use of such forces of either
Dominion as it deems effective for the pur-
pose of pacification.
B - PLEBISCITE
6. The Government of India should under-
take to ensure that the Government of the
State invite the major political groups to
designate responsible representatives to
share equitably and fully in the conduct of
the administration at the ministerial level,
while the plebiscite is being prepared and
carried out.
7. The Government of India should under-
take that there will be established in Jammu
and Kashmir a Plebiscite Administration to
hold a Plebiscite as soon as possible on the
question of the accession of the State to India
or Pakistan.
8. The Government of India should under-
take that there will be delegated by the State
to the Plebiscite Administration such powers
as the latter considers necessary for holding a
fair and impartial plebiscite including, for
that purpose only, the direction and supervi-
sion of the State forces and police.
9. The Government of India should at the
request of the Plebiscite Administration,
make available from the Indian forces such
assistance as the Plebiscite Administra-
tion may require for the performance of its
functions.
10. (a) The Government of India should
agree that a nominee of the Secretary-Gene-
ral of the United Nations will be appointed to
be the Plebiscite Administrator. The Ple-
biscite Administrator, acting as an officer of
the State of Jammu and Kashmir, should
have authority to nominate the assistants
and other subordinates and to draft regula-
tions governing the Plebiscite. Such nomi-
nees should be formally appointed and such
draft regulations should be formally promul-
gated by the State of Jammu and Kashmir.
The Government of India should under-
take that the Government of Jammu and
Kashmir will appoint fully qualified persons
nominated by the Plebiscite Administrator to
act as special magistrates within the State
judicial system to hear cases which in
the opinion of the Plebiscite Administrator
have a serious bearing on the preparation
and the conduct of a free and impartial
plebiscite. The terms of service of the
Administrator should form the subject of a
separate negotiation between the Secretary-
General of the United Nations and the
Government of India. The Administrator
NO LOCUS STANDI
Indian army countering
pakistani advances in 1947.
Pakistan is nothing but
an aggressor and
mischief-maker in the state
15INDIA LEGAL August 31, 2016
Paramvir Chakra Awardee Bana Singh,
Subedar Major and Honorary Captain
Those who are tarnishing the image of army
have no right to live in this country. The army
is protecting the country. It’s people’s duty to
show gratitude to, and respect the land
which is nurturing you. You have to protect
its image. We have to fight these traitors.
Justice Vijender Jain, Chairman of the Human
Rights Commission, Government of Haryana
If you look at all the elections held since
1947—be it parliamentary, or legislative
assemblies—people have exercised their
right to vote. And whenever separatist forces
have contested, they have never succeeded.
By talking of referendum whom are we help-
ing? Are we helping national interest, or sep-
aratists, or terrorists, or Pakistan?
The Bar Council has nothing to do with this matter. Our democra-
cy gives people the right to speak anything because the essence of
democracy is dissent.
Justice Santosh Hegde, former solicitor general
of India, retired Supreme Court judge
Jammu & Kashmir is an integral part of India.
Soon after Independence, there was some
problem with some vested interests, but that
is under the UN resolution. Of late, some
people have been internally instigated by
external forces to create disturbances in the
state and I am sure that the forces will
answer them properly. As for some lawyers
asking for plebiscite, I think they have no
interest in Kashmir at all and I don’t think they know law either. I think
the Bar Council of India should take action against them because
they have no patriotism. The constitution doesn’t prevent anyone
from saying anything, but the sedition law, under Section 124A of the
Indian Penal Code, speaks about it. Anybody who utters anything—
speaks or acts—against the country is guilty of sedition.
Martyr Pawan
Kumar’s father
There’s only one
institution in the
country which works
with love and devo-
tion to the country,
and is ready for
supreme sacrifice in
the service of the
nation. The jawans
posted in the North-
East, in -50 degree
temperatures and in
the sweltering 50
degree conditions of
Rajasthan, protect
our country and lay
their lives, but it’s
some people sitting
in the center who
have got the right to
declare them mar-
tyrs. To those who
argue that our sol-
diers get a salary for
the work they are
doing, I would ask,
in which other organ-
ization are people
ready to give their
life for a salary?
OthervoicesonKashmir andthearmy’srole
Pawan Kumar
16 August 31, 2016
LEAD/ Kashmir Plebiscite
should fix the terms of service for his assis-
tants and subordinates.
The Administrator should have the right
to communicate directly, with the Govern-
ment of the State and with the Commission
of the Security Council and, through the
Commission, with the Security Council, with
the Governments of India and Pakistan and
with their representatives with the Commi-
ssion. It would be his duty to bring to the
notice of any or all of the foregoing (as he in
his discretion may decide) any circumstances
arising which may tend, in his opinion, to
interfere with the freedom of the Plebiscite.
11. The Government of India should under-
take to prevent to give full support to the
Administrator and his staff in preventing any
threat, coercion or intimidation, bribery or
other undue influence on the voters in the
plebiscite, and the Government of India
should publicly announce and should cause
the Government of the State to announce
this undertaking as an international obliga-
tion binding on all public authorities and
officials in Jammu and Kashmir.
12. The Government of India should them-
selves and through the Government of the
State declare and make known that all sub-
jects of the State of Jammu and Kashmir,
regardless of creed, caste or party, will be safe
and free in expressing their views and in vot-
ing on the question of the accession of the
State and that there will be freedom of the
Press, speech and assembly and freedom of
travel in the State, including freedom of law-
ful entry and exit.
13. The Government of India should use and
should ensure that the Government of the
State also use their best endeavour to effect
the withdrawal from the State of all Indian
nationals other than those who are normally
resident therein or who on or since 15th
August 1947 have entered it for a lawful pur-
pose.
14. The Government of India should ensure
that the Government of the State releases all
political prisoners and take all possible steps
so that:
(a) all citizens of the State who have left it on
account of disturbances are invited and are
free to return to their homes and to exercise
their rights as such citizens;
(b) there is no victimisation; minorities in all
parts of the State are accorded adequate pro-
tection.
15. The Commission of the Security Council
should at the end of the plebiscite certify to
the Council whether the plebiscite has or has
not been really free and impartial.
C - GENERAL PROVISIONS
16. The Governments of India and Pakistan
should each be invited to nominate a repre-
sentative to be attached to the Commission
for such assistance as it may require in the
performance of its task.
17. The Commission should establish in
Jammu and Kashmir such observers as it
may require of any of the proceedings in pur-
suance of the measures indicated in the fore-
going paragraphs.
18. The Security Council Commission should
carry out the tasks assigned to it herein.
The Security Council voted on this
Resolution on 21-41948 with the following
result: In favor: Argentina, Belgium, Canada,
China, France, Syria, the UK and the USA.
Against: None
Abstaining: Belgium, Colombia, Ukrai-
nian S.S.R. and USSR. IL
LITANY OF VIOLENCE
(Clockwise from above left)
JKLF founder Maqbool
Bhatt was hanged in 1984,
while Abdul Ghani Lone,
Maulana Farooq and Qazi
Nissar, who were willing to
find solutions within India
were slain by extremists
17INDIA LEGAL August 31, 2016
I
T is rightly said that Prashant
Bhushan is a man who loves
wearing different hats. One
day, he is a champion PIL
lawyer. On another, he dons
the mantle of an activist. And
then, literally at the drop of a
hat, he is seen in the garb of a politician.
Over the years, the multiple roles he
enacts have ensured him a place in the
news, often for all the wrong reasons.
In fact, he has courted controversy
and there is no dearth of accusations
against Bhushan. These include ques-
tionable land deals, filing PILs serving
vested interests by the dozen and operat-
ing numerous NGOs which nurture
questionable agendas. It is another mat-
ter that such allegations run counter to
the anti-corruption crusader image he
projects.
Changing tracks is another art he has
mastered. Remember Bhushan was ini-
tially involved with the India Against
Corruption movement led by Anna
Hazare but soon fell out with him and
joined Arvind Kejriwal to set up the Aam
Aadmi Party (AAP). However, he quick-
ly announced differences with the “muf-
fler man” and formed Swaraj Abhiyan,
which is strongly opposed to the AAP.
Bhushan has also courted contro-
versy on several counts. He has labeled
judges corrupt and has advocated for
a plebiscite in Kashmir. He infamously
demanded a referendum on deployment
of security forces in Naxal-affected areas.
More recently, he attracted criticism
for condemning the killing of militant
commander Burhan Wani by the armed
forces in Kashmir.
Here are some of the controversies he
is associated with:
FILING SUSPECT PILs
Sources have it that Prashant Bhushan
shoots off anonymous complaints listing
charges against individuals/organiza-
tions and then uses these to file PILs. In
fact, Bhushan was pulled up by the Chief
Justice of India TS Thakur for running a
LEAD/ Prashant Bhushan
There are questions and
issues that cast a shadow
on the integrity of the
loquacious PIL lawyer
By India Legal Bureau
CourtingControversy
18 August 31, 2016
DUBIOUS PURCHASE
This tony civil lines property in Civil
Lines area of Allahabad was bought
by Shanti Bhushan, Prashant’s father,
for a paltry amount
PIL center. The court asked: “Why
should we hear PILs filed by CPIL
(Centre for Public Interest Litigation
that Bhushan is associated with)? You
are a professional litigant. Can you
become a ‘center’ for PIL? Can anyone
walk into your office and tell you 'I want
to file a PIL’?”
The apex court observed further:
“Prashant Bhushan, you have an image
of a crusader. But can you become the
centre for public interest litigation? Can
the system be taken for a ride in such a
manner? We cannot allow this. We must
be satisfied that you have a committee
which scrutinizes the complaints and
allows only genuine ones to be converted
into public interest litigations…We must
have the confidence that when CPIL files
a petition, it is not prompted by someone
who has a vested interest, even though
the cause may appear genuine. If a
corporate rival gives documents for filing
of a PIL, will you do it? Why would that
corporate source not come out in the
open and pursue the litigation in its own
name? Why should CPIL be a front
for settling corporate rivalry or personal
vendetta? CPIL should not become
proxy litigant. It should not become
an instrument in the hands of commer-
cial players.”
Bhushan maintained that CPIL was
formed by senior lawyers and had a com-
mittee of senior advocates, scrutinising
every petition before it is filed in court.
“There is a committee which comprises
Fali Nariman, Anil Divan, Kamini
Jaiswal, my father and myself. All peti-
tions are scrutinized by us,” he said. Fali
Nariman and the others quickly reacted,
saying that they had nothing to do with
the PILs as claimed by Prashant.
JAIN HAWALA CASE
This involved payments allegedly recei-
ved by politicians through four hawala
brokers, namely the Jain brothers. It was
a US$18 million bribery scandal that
implicated some of the country's leading
politicians in the Nineties. Crusader-
journalist Vineet Narain who was at the
forefront of the expose said: “I have
burnt my fingers with the Bhushans dur-
ing my Jain Hawala crusade...contro-
19INDIA LEGAL August 31, 2016
INVESTIGATION
OF AUDIO
(Left) The clip of the
telephonic conversation
which reveals that the CD
mentioning Prashant was
not tampered
(Below) The
controversial Palampur
property
EXCLUSIVE!
versy and suspicion had arisen even ear-
lier on the Bhushans...after initially
helping me in drafting the petition (Jain
Hawala case), the Bhushans, made sev-
eral attempts to sabotage the biggest
crusade against corruption and finally
derailed the case.”
HIMACHAL LAND SCANDAL- 1
Prashant Bhushan found himself entan-
gled in a land scandal in Himachal when
he was found to have secured property
by filing a false affidavit to ensure that
he got domicile status (DS). Once he
secured ownership he sold the land only
to purchase another property which was
possible because he had domicile status.
The case is currently being investigated
by the state government.
HIMACHAL LAND SCANDAL-2
In February 2010, the BJP government
in Himachal Pradesh permitted the
Kumud Bhushan Educational Society,
headed by Prashant Bhushan, to buy
tea-estate land at Kandwari near
Palampur in Kangra district to set up
an educational institution on condition
that it would be built within two years
of purchase of the land. The clearance
was given when there was a total ban
on the sale of tea gardens in the state to
non-agriculturists. The Congress
government ordered a probe into the
sale in March 2013 when it came to
power. This is what the investigations
revealed:
Permission was granted to purchase
122 kanal (15.25 acres) of tea estate land
to start an educational institute within
two years. However, no school or college
came up. Instead, an institute called
“Shambhawana” was set up, which con-
ducted occasional seminars and work-
shops. It was not affiliated to any univer-
sity or board. DIG AP Singh, head of the
vigilance bureau, wrote to the state gov-
ernment that there was a clear violation
of rules and the property should be con-
fiscated. The report said the educational
institution required only 22 kanal (2.75
acres) of land, but the society purchased
122 kanal.
STAMP DUTY EVASION CASE IN
ALLAHABAD
Prashant’s father, Shanti Bhushan bou-
ght a house in the tony Civil Lines area
of Allahabad for a paltry advance and
then paid the remaining amount many
years later. The property had been gross-
ly undervalued during the sale. As a
result stamp duty of `45,000 was paid
for real estate worth about `20 crore.
The Assistant of Stamp Duty in
Allahabad, Dr KP Pandey, said Bhushan
has been found guilty of evading stamp
duty and the property and related taxes
had been grossly under-valued. Shanti
Bhushan and his three children were
slapped a notice for alleged stamp duty
evasion in 2011. A fine to the tune of `1.3
crore was slapped on Bhushan, his two
sons Jayant and Prashant and daughter
Shefali.
20 August 31, 2016
LEAD/ Prashant Bhushan
Major General SP Sinha
People like Prashant Bhushan are traitors.
Prashant Bhushan’s father has said it and
the laboratory of Government of India has
confirmed it that it is Prashant Bhushan’s
voice. His father also says that Prashant
Bhushan files PILs and manages these very
well in the court (see graph). These people
are traitors. In what capacity can they talk
about Kashmir?
What
public
figures,
andthose
whohave
worked
with
Bhushan
sayabout
him
Ashok Pandit, film-maker
Prashant Bhushan belongs to the cate-
gory which I call “white-collar terrorists”.
What kind of education has he got, and
how did he become a lawyer? He
should be in Pakistan and practise law
there. He should go for psychological
treatment. It’s not a normal man’s
behavior.
NOIDA FARM HOUSE CASE
By declaring themselves as agriculturists
by submitting a project report on the farm-
ing they intended to do, Shanti Bhushan
and Prashant’s brother, Jayant, became
owners of 10,000 sq m farmland plots in
Noida. What was not mentioned was the
manner in which the Mayawati govern-
ment allotted 10,000 sq m land to
Bhushan senior and another plot of the
same dimension to his son Jayant. There
was also a question of conflict of interest,
since Jayant appeared against Mayawati in
the Noida Statue Park case. This land was
allotted at a quarter of the prevailing mar-
ket rate.
DOCTORED CD CASE
An audio CD surfaced in 2011, in which
Shanti Bhushan claimed that son Prashant
could manage (fix) any case for just `4 to 5
crore. He was purportedly speaking to a
leading politician. However, Shanti
Bhushan denied such a conversation took
place. But after a few days, he agreed that
he had met with the politician and had
telephoned him. Prashant and Shanti
Bhushan claimed that the CD was doc-
tored and submitted a private lab report
supporting their assertion. However, the
expert who conducted the tests revealed
that he had just listened to the audio with-
out conducting tests to come to that prem-
ise. The report was submitted in nine
hours. Later, verification reports of the
government and Delhi Police indicated
that the CD was genuine.
CONFLICT OF INTEREST
When a PIL was filed in the Allahabad
High Court against a builder, Shanti
Bhushan insisted on appearing in the mat-
ter. However, the petitioner said in court
that he did not want Bhushan to represent
him as he had a vested interest in the mat-
ter. Shanti Bhushan then requested the
court that he be appointed as amicus curi-
ae in the case. The court turned this down
saying that as he was an interested party
he could not be appointed.
ARUNDHATI ROY CASE
The Supreme Court suo moto issued
contempt notice in 2002 against
Prashant Bhushan, Medha Patkar and
Arundhati Roy for blocking the road
leading to the apex court and hurling
abuse on the court and judges. However,
the court accepted the apology of
Prashant Bhushan and Medha Patkar
through their counsels, Ram Jethmalani
and Shanti Bhushan.
Arundhati Roy was sent to jail as she
refused to apologise. Another contempt
proceeding involving Prashant is pend-
ing in the Supreme Court.
BURHAN WANI CONTROVERSY
Prashant Bhushan added further fuel to
the recent Kashmir controversy over the
killing of Hizbul Mujahideen commander
Burhan Wani. The lawyer stated that
most people suspected that Wani was
killed by the security forces in a fake
encounter. This was the line being pushed
by separatist groups in the valley.
21INDIA LEGAL August 31, 2016
Vineet Narain, senior journalist
I won’t indulge in a personal attack on any-
one, but my experience with Prashant
Bhushan has been very bitter. Bhushan was a co-petitioner with
me in the Hawala case. How he cheated me during that case
and tried to derail the case really hurt me. I have said this open-
ly on channels and public meetings. What he is doing with PILs
now—it’s for him to see, or for those who are at the receiving
end, or the judiciary.
Arvind Kejriwal, Chief Minister,
Delhi (Recording of what he said
about Bhushan after AAP’s landslide
victory in 2015 Delhi Assembly
elections)
He left no stone unturned to ensure that
we get defeated in the Delhi assembly
elections. Had he been with any other
party, he would have been kicked out.
You do not know who he is... he is
number one kameena (scoundrel).
Kamal Haq, Panun Kashmir
spokesman
Respect towards the armed
forces is a duty not only of citi-
zens but also the ruler. The
forces have never been so
demoralized as in the last one
year. If the ruler says in a public
meeting that he ensured punish-
ment for an army officer
because of excesses, you are
demoralizing the forces. And
you are encouraging people like
Prashant Bhushan who have
such a thinking. There should
be a law, wherein if you commit
any kind of “violence” against
the forces, it will be considered
a war against the country.
IL
SUPREME COURT/TN/Defamation Cases
A
Supreme Court bench of
Justices Deepak Mishra and
Rohington F Nariman observed
the following on July 28 while
hearing a petition from actor-
turned-TN politician Vijayakanth: “The
penal provision of defamation (Sections 499
and 500 of the IPC) should not be used to
throttle dissent … the court must step in, if
there are continuous efforts to harass per-
sons by filing a number of defamation cases.
Just because any one calls a government
corrupt or lacking in administrative ability
he cannot be slapped with defamation case.
There has to be a tolerance to criticism.
Defamation cases cannot be used as a polit-
ical counter weapon and cases for criticizing
the government or bureaucrats create a
chilling effect. Even though we upheld
defamation law, if we find there is a deliber-
ate design to engage government law offi-
cers to file cases, it is the duty of the court to
protect them. We direct the government of
Tamil Nadu to furnish the complete list of
Fighting
StateFuryWith numerous defamation cases filed by
the CM, the apex court has asked the
state to be tolerant to criticism and
give it a list of those in the firing line
By India Legal Team
22 August 31, 2016
Anthony Lawrence
The Hindu
The Times
of India
India
Today
Rediff.com
The Economic Times
NDTV
CNN IBN
Times Now
Junior Vikatan
Nakkheeran
weekly
Anandha
Vikatan
defamation cases filed by the Chief Minister
either through the office of the Public
Prosecutor or otherwise within two weeks
and we adjourn the case for further hearing
to September 21.”
These golden words gave some reprieve
to Vijayakanth. The petition requested the
court to stay the arrest warrant issued by a
Tiruppur district sessions judge on a
defamation case filed by Tamil Nadu Chief
Minister J Jayalalithaa against Vijayakanth
and his wife, Premalatha, for a public speech
of theirs. The defamation case was filed on
behalf of Jayalaithaa by the Tiruppur dis-
trict public prosecutor.
Interestingly, though the Supreme Court
had stayed all the proceedings in this case in
March 18 this year, the Tiruppur sessions
judge went ahead and issued non-bailable
arrest warrants against Vijayakanth and his
wife on the pretext that neither they nor
their counsel attended the proceedings. The
bench also stayed the arrest warrants.
ALARMING SITUATION
In fact, a few days back while hearing anoth-
er defamation case filed by Jayalalithaa
against Vijayakanth, a bench headed by
Justice Deepak Mishra was taken aback by
the sheer number of such cases filed by the
CM and her council of ministers against
their political opponents.
The situation is so alarming in Tamil
Nadu that anyone criticizing Jayalalithaa or
her ministers is in for trouble. At the
Principal Sessions Judge’s (PSJ) Court in
Chennai alone there are 162 defamation
cases against politicians, media houses,
journalists and even against a lady TV news
reader. No one knows how many cases are
pending in the districts as this figure is
unavailable but conservative estimates say it
could be not less than 200. The filing of
defamation cases started as early as January
2012, just six months after Jayalalithaa
came back to power for a third term.
Defamation cases are pending against
The Hindu, The Times of India, India
Today, Rediff.com, The Economic Times,
NDTV, CNN IBN, Times Now and scores of
Tamil newspapers, magazines and television
channels. One of the leading Tamil maga-
zine groups—the Vikatan group of publica-
tions which publishes the bi-weekly Junior
Vikatan and weekly—Anandha Vikatan—is
also facing 45 defamation cases. Another
leading Tamil political biweekly, Nakkh-
eeran, is facing 19 defamation cases.
WATCH OUT
Even for expressing one’s opinion, defama-
tion cases are filed. In 2014, then Janata
Party president, Dr Subramanian Swamy,
had tweeted that it was not Jayalalithaa but
he who was responsible for Tamil Nadu win-
ning its rights in the Mullaperiyar issue in
the Supreme Court. For this, Jayalalithaa
filed a defamation case against him.
Similarly, a leading Tamil daily Dinamalar
carried an article which said that the Tamil
Nadu government is considering privatizing
bus transport in rural areas. A defamation
case was filed. The Times of India carried a
front page article about rampant corruption
in Road Transport Offices in the state and
titled it: “TN gives license to its drivers to
kill”. A defamation case was filed against it.
The importance attached by the
Justices Rohington F Nariman and
Deepak Mishra (above L and R) say
that the penal provision of defamation
should not be used to throttle dissent.
23INDIA LEGAL August 31, 2016
tional validity of Section 499 and 500 on
May 13, 2016, there were some sane voices
which said that at least the Supreme Court
should have done away with these provi-
sions. A retired Madras High Court judge
who did not want to be named said: “The
Supreme Court could have read down
Section 199 of the Code of Criminal
Procedure that allows public prosecutors to
step into the shoes of allegedly defamed
public servants. In my view, this is patently
unfair, unethical and against natural justice
to allow the State to use its legal machinery
to suppress criticism without the public ser-
vants concerned being required to testify
in court on the actual injury or loss of repu-
tation suffered by them.”
As of now, not a single defamation case
filed by the government has seen the light of
day, ie, reached the trial stage. “The main
aim is to harass the journalist or the politi-
cian. And this has its own chilling effect at
least as far as media persons are concerned.
Generally, no media outlet wants to fight lit-
igations for long and in this age of costly
legal affairs, protracted battles are unthink-
able. So media houses want to avoid this
nightmare and the government attains its
desired results,” said MP Thirugyanam, a
senior Tamil journalist.
For politicians, the situation is worse.
Vijayakanth, being the leader of the
opposition in the assembly, had to visit dis-
trict after district to attend defamation cases
filed by Jayalalithaa for his public speeches.
This forced him to repeatedly knock on
the doors of the Supreme Court for relief
and it was at one of these hearings on July
“If only the media had taken up these cases
seriously as an assault on the freedom of
expression and shown some backbone, things
would not have gone this far.”
—GS Mani, a SC lawyer representing Vijayakanth (above)
Jayalalithaa government to defamation
cases can be gauged by the fact that it has
appointed a special lawyer to oversee them.
“If the special lawyer is satisfied that a par-
ticular news item against the chief minister
or a minister warrants a defamation case,
then he will prepare the affidavit and the
city public prosecutor will file the complaint
in court. This has been the procedure for the
past four-and-half years,” said a former gov-
ernment lawyer.
One advantage for the government is
that as it is the complainant, it needn’t
come to court either during the pres-
entation of the case or in subsequent
hearings. However, under normal cir-
cumstances, if the complainant is a pri-
vate citizen, he will have to come for all
hearings.
STATE MACHINERY
In fact, when the Justice
Deepak Mishra bench
upheld the constitu-
SUPREME COURT/TN/Defamation Cases
TO TWEET OR
NOT TO TWEET
Dr Subramanian Swamy
24 August 31, 2016
UNI
28 that the Justice Deepak Mishra bench
came down heavily on the Jayalalithaa
government.
N Ramesh, the advocate representing the
Vikatan Group of Publications said: “Even
after the Supreme Court’s July 28 anguish,
yet another defamation case was filed
against us in the first week of August. We
were indulging in nothing but fair criticism
and this is the duty of both the media and
the opposition. It seems the Tamil Nadu
government is not ready to mend its ways.
Repeated filings of defamation cases are
nothing but an attempt to gag the media.”
Almost all the top politicians of the state
—DMK president M Karunanidhi, his son,
MK Stalin, Pattali Makkal Katchi leader Dr
S Ramadoss, his son Anbumani Ramadoss,
MP, DMDK president Vijayakanth and
leaders of Left parties are all facing defama-
tion cases by the government.
TAME MEDIA
Some of those connected with these cases
blame the media in Tamil Nadu. “If only the
media had taken up these cases seriously as
an assault on the freedom of expression and
shown some backbone, things would not
have gone this far. There were absolutely no
protests from the media when the govern-
ment was day in and day out strangulating
their voices,” said GS Mani, a Supreme
Court lawyer representing Vijayakanth.
In the previous DMK regime too, the
government had filed defamation cases
against the media and political opponents.
“But there was a qualitative difference—it
filed cases only if the criticism was com-
pletely personal and below the belt. They
definitely allowed some space,” said Aazhi S
Senthilnathan, a writer and journalist.
Defamation laws were the brain child of
Lord Macaulay. He conceived this in 1837
and they were subsequently made law in
1860. While upholding the constitutional
validity of Section 499 and 500 IPC, the
Justice Deepak Mishra bench said: “These
laws stood the test of time and hence there is
no need to strike them down”. After this
judgment, Dr Subramanian Swamy, one of
the petitioners who challenged the constitu-
tional validity of both these sections, said he
would try to take this issue to a large consti-
tutional bench.
Meanwhile, for “Amma” and her minis-
ters, it is business as usual.
DMK chief M Karunanidhi and his son,
MK Stalin (left), PMK leader Dr S
Ramadoss and his son Anbumani
Ramadoss (above) are all facing
defamation cases.
IL
25INDIA LEGAL August 31, 2016
UNI
UNI
SUPREME COURT/ Adulteration
M
ILK has always been synony-
mous with health and bal-
anced nutrition. Rewind to
your childhood and images
flash of being chided for not
drinking the morning glass-full. And it’s not
just children—both the young and the old
consume milk since traditional wisdom has
it that a glass a day not only keeps the doctor
away but helps build stronger bones and
keeps the body in ship shape.
Unfortunately, the milk we imbibe today
and persuade our children to religiously
consume may actually be detrimental to
health. Chances are that the wholesome
product we think we are buying may be a
toxic cocktail of urea, detergent powder,
shampoo, white paint, refined oil and con-
taminated water. Over 68 percent of milk in
the country has been found to be adulterat-
ed in a study conducted in 2011 by the Food
TOXIC!The Supreme Court
ruling last fortnight
directing the Center and
states to amend laws to
ensure stringent
punishment for those
guilty of adulterating milk
and other food produce
is a welcome step
By Ramesh Menon
Ingredients
Urea
Detergent powder
Shampoo
White paint
Refined oil
Contaminated water
Toned Milk
26 August 31, 2016
Rajender Kumar
Safety and Standards Authority of India
(FSSAI). It was found that adulteration
was rampant in the country with the worst
states being Bihar, Chhattisgarh, Odisha,
West Bengal, Mizoram, Jharkhand and the
Union territory of Daman and Diu. In
some of these states, the adulteration was
alarmingly found to be 100 percent in the
samples tested!
The National Survey on Milk
Adulteration, 2011, found that eight percent
of 1,791 samples were adulterated with
detergents. Ditto six percent of the samples
tested in 2015 by the Ministry of Health.
Food and drug administration officials
in Pune found that almost 90 percent of
the milk samples tested in 2014-15
were adulterated.
The Indian Council of Medical Research
has pointed out that such adulteration could
lead to the destruction of body tissue, cause
impairments, heart problems, cancer and
even death. It noted that while there would
be no immediate effects, the long-term
impact is cause for serious concern.
Operation Flood, launched in 1970 and
the white revolution that followed made
India the world’s largest producer of milk.
But this creditable achievement is now
being undermined by rampant adulteration
being practiced by unscrupulous suppliers.
Even water taken from untreated sources,
often used to dilute milk, contaminates and
is considered injurious to health. But the use
of chemicals like urea and detergents to cre-
ate “synthetic” milk has taken adulteration
to another hazardous level. More than two-
thirds of the milk in India does not meet
food safety standards.
This is the reason why last fortnight the
Supreme Court minced no words when it
observed that it favored awarding life
WHITHER FOOD SAFETY?
Milk being mixed with
harmful adulterants before
being packaged for sale
27INDIA LEGAL August 31, 2016
imprisonment to
those guilty of adul-
terating milk. The
court was responding
to a petition filed by a
group of concerned
citizens hailing from
different states who
pleaded for more
stringent punish-
ment for adulterating
milk. At present the
crime is only punish-
able with a fine or a
jail term of six
months. Conviction
is rare and so are the
surprise checks to
test the quality of
milk.
A bench compris-
ing Chief Justice of
India TS Thakur and Justices R Banumathi
and UU Lalit expressed the view that adul-
teration of milk could adversely affect the
growth of future generations and the men-
ace had to be urgently tackled. The bench
called upon the governments both at the
center and the state to amend lenient laws
that are prevalent and follow the states of
Uttar Pradesh, West Bengal and Odisha
which have made a crime like adulteration
of milk punishable with life imprisonment.
It also wanted a complaint mechanism to
be evolved which could be used to
check corruption and the unethical
practices followed by food authorities across
the country.
Advocate Anurag Tomar, who appeared
for the petitioners, contended that milk con-
taminated with synthetic material was being
sold in various states, particularly in the
north, posing a serious threat to the life and
health of consumers. He pleaded that the
Center should be directed to amend the pre-
vailing Food Safety Act and make punish-
ment very stringent. Tomar told India
Legal: “It is now up to the Center to act on
the suggestion of the Supreme Court. It is in
public interest and is a very serious health
issue affecting all of us. The directions of the
Supreme Court are also very practical and
will bring in efficiency in the detection
of adulteration.”
Uday Mawani, Chief Executive Officer of
the Ahmedabad based Consumer Education
and Research Centre (CERC) told India
Legal that consumers often found that the
POISONED DRINK?
(Right) Milk being
poured at
a tea stall;
(Below) Samples of milk
at a lab in Delhi
28 August 31, 2016
Bhawna Gaur
SUPREME COURT/ Adulteration
IL
FSSAI helpline never worked and the
response to complaints of milk adulteration
was poor and the redressal mechanism inef-
fective. Moreover, as milk was transported
over long distances without maintaining
proper temperature, it gets infected with
microbes rendering it unfit for consump-
tion, he said.
Soon after the directions from the
Supreme Court, the Telangana government
decided to make adulteration of milk a
non-bailable offence with a maximum pun-
ishment of a life term. It is now left to other
states to follow suit and take up adulteration
seriously as it is not just milk but other foods
that are also being adulterated.
Strict anti-adulteration laws can help
fight the malaise which is playing havoc
with public health. Look at how food items
are rendered spurious before they reach the
consumer. Tiny chalk crystals are mixed
with sugar. White stone is powdered and
added to salt. Brick powder mixes with red
chilli powder. Sawdust and even powdered
cow dung is mixed with coriander powder.
Honey is adulterated with jaggery syrup.
Sweets could have harmful coloring agents
that are banned as they are carcinogenic.
Adulteration has become big business. It
remains to be seen if the Center actually acts
on the suggestions of the Supreme Court.
It is high time that laws are amended
to discourage the practice of tampering with
food products and punishing those
guilty of being part of the vicious adulter-
ation chain.
A bench comprising Chief Justice of India TS Thakur and Justices
R Banumathi and UU Lalit (L to R) felt that milk adulteration could adversely
affect the growth of future generations and had to be tackled.
Tamil Nadu
Karnataka
Kerala
Madhya Pradesh
Maharashtra
Rajasthan
Punjab
Jammu & Kashmir
Gujarat
Mizoram
Odisha
Chattisgarh
Bihar
West Bengal
Delhi & Haryana
FSSAI Survey
% ofsampleswithmilkadulteration
0 10 20 30 40 50 60 70 80 90 100
Andhra Pradesh
29INDIA LEGAL August 31, 2016
SUPREME COURT
The Supreme Court sought an
explanation from three police
officers in Dharbhanga, Bihar, for
handcuffing a merchant navy
captain in a dowry case. The
apex court had prohibited hand-
cuffing of accused persons as a
rule in a 1980 verdict, noting
that it be done only in special
circumstances like violent
behavior of the accused, or pos-
sibility of him/her defying legal
procedures.
The concerned cops may be
tried for contempt of court. They
were asked to appear in court in
case they did not file a response
within 30 days.
The Merchant Navy officer
had approached the apex court,
pleading for contempt action
against the cops. He alleged that
despite cooperating with the
probe, the police had arrested
and handcuffed him while he
was appearing in the trial court
for hearing. He also objected to
being arrested without any prior
notice and pleaded it was
against Section 41 of CrPC.
Pulled up for handcuffing
The Supreme Court
took a serious note
of the abysmally poor
rate of conviction
(around 20 percent)
in the 2008
Kandhamal riots
case. The riots took
place in western
Odisha following the
killing of a VHP member.
More than 50 Christians
were butchered in the may-
hem, which also caused
widespread damage.
While pulling up the
state government, the Court
referred to its 1974 verdict,
wherein it had stated that
minorities were as impor-
tant as the majority in India
as envisaged by the consti-
tution, and nothing should
be done to make them feel
neglected. The Court had
further held that the minori-
ties had every right to con-
serve their religion, culture
and language.
The Court not only
asked the Odisha govern-
ment to re-visit all cases
and do the needful so that
the guilty do not go unpun-
ished, but also give addi-
tional compensation to the
victims.
The Supreme Court refused
to take a fresh look at its
1996 verdict on the anti-
defection law. According to
the law, all MPs were bound
by the party diktat even after
they had been expelled.
The matter came up after
politicians Amar Singh and
Jaya Prada sought clarity on
whether lawmakers could be
prosecuted under anti-defec-
tion law after they did not
follow the party whip after
expulsion.
The bench dealing with
the matter observed that the
queries were no longer rele-
vant as both of them had
completed their tenure as
Rajya Sabha MPs. Both
Singh and Jaya Prada had
been expelled from
Samajwadi Party in 2010.
Expelled BJP MP
P Mohapatra too had
moved the apex court
on the issue.
The Supreme
Court, in its Novem-
ber 2010 order, had
stated that Singh
and Jaya Prada
were not above the
anti-defection law.
Miffed over poor
conviction rate
No re-look at
anti-defection law
30 August 31, 2016
—Compiled by Prabir Biswas, Illustrations: UdayShankar
In a major relief to BJP
president Amit Shah, the
Supreme Court ruled that
there was no need to revisit
the 2005 Sohrabuddin fake
encounter case. It struck
down the plea of social
activist Harsh Mander, who
had objected to Shah’s
acquittal by the Mumbai
Sessions Court in Decem-
ber 2014.
The apex court even
questioned the locus standi
of Mander in filing the plea,
observing that he was in no
way linked to the case. The
Bombay High Court had
approved the trial court’s
decision and did not even
take up Mander’s petition.
Incidentally, Sohrabu-
ddin’s brother too had taken
back his plea against Shah’s
acquittal in the Bombay
High Court.
Shah was finally declared
not guilty by a CBI court in
Mumbai after being charge-
sheeted earlier. The apex
court had asked the CBI
court to adjudicate the case.
The counsels for Mander
said that “public must get the
feeling that nobody is above
the law”.
Former chief ministers of
Uttar Pradesh and their
families can’t be allowed to
stay indefinitely in official
bungalows in Lucknow and the
rules framed by the state gov-
ernment in this regard were
illegal, the Supreme Court
observed. It struck down a
1997 rule of the state govern-
ment earmarking bungalows
for erstwhile chief ministers.
The apex court gave two
months’ time to all former
chief ministers to vacate their
bungalows and asked the state
to slap appropriate market rent
for illegal occupation.
The Court gave its verdict
on a plea from NGO Lok
Prahari. The UP government
contended that the judiciary
had no business to intervene in
decisions taken by the execu-
tive. It also argued that there
was no special treatment
meted out to former CMs as
observed by the judiciary, as
these persons were anyway
accorded privileged status and
some were even enjoying Z-
plus security and thus needed
commensurate infrastructure.
Refuting the argument, the
apex court cited the Uttar
Pradesh Ministers (Salaries,
Allowances and Miscellaneous
Provisions) Act of 1981,
which mandated that chief
ministers must vacate their
bungalows within 15 days of
leaving office.
It is all over in
Sohrabuddin case
No official housing for
former CMs
Acting on a PIL filed by a UP politician Ranvir Singh and look-
ing into inputs from several central agencies, the Supreme
Court asked the CBI to investigate money-laundering allegations
against a BSP MLC in UP, Mohammad Iqbal, and submit its
report within three months. The fact that Iqbal was embroiled in
other criminal cases went against him. Iqbal has been accused
of setting up fake companies for money laundering. Reports
from Special Fraud Investigation Organisation (SFIO),
Enforcement Directorate (ED) and Central Board of Direct Taxes
(CBDT) submitted before the court pointed towards these
frauds. All these agencies had done their home work on a com-
plaint against Iqbal. The apex court also directed the CBI to go
through all these reports before filing its assesment.
CBIprobeagainstBSPMLC
31INDIA LEGAL August 31, 2016
COURTS
Madras High Court invokes loco parentis
The Madras High Court took over the role
of a parent (loco parentis in legal par-
lance) of a mentally-retarded man who had
lost his parents and had been abducted and
married by his former wife for huge property
bequeathed by his father.
The man, Manoj Rajan, was born with
speech and hearing problems. His mother
died when he was a teenager. The only son
of an industrialist, he got married to Priya
Darshini in 2008. But his wife divorced him
shortly afterwards, claiming that he was
mentally unfit.
Rajan was left with huge property upon
his father’s death. The responsibility of look-
ing after Manoj and his property was taken
over by his friend Ananth. He arranged for
Manoj’s stay at a home for the mentally-
challenged in Gudalur, in Nilgiris, Tamil Nadu.
Priya Darshini approached the Madras
High Court, claiming that Manoj had been
illegally detained in the home. But her claim
was struck down by the High Court based on
a police report. She later kidnapped him from
the home and remarried him. But the Gudalur
police did not take legal action against her
despite a complaint filed by the home author-
ities. Ananth then approached the High Court,
which found Manoj and brought him back to
the home. The Court also found out that huge
property in the name of Manoj had been ille-
gally sold by his wife.
The Court asked CB-CID, Tamil Nadu Po-
lice, to probe Manoj’s remarriage and proper-
ty sale, lodged him in a Madurai home, and
entrusted his safety to the Madurai police.
Miffed over
manual
scavenging
Aghast at the fact that
more than 200 manual
scavengers still existed in
Delhi, the Delhi High Court
took a serious note of the
incorrect information pre-
sented by civic agencies.
They had claimed that
there were no manual scav-
engers in the capital. How-
ever, a report from the Delhi
State Legal Services Autho-
rity filed before the Court
stated that 233 people were
on the rolls of civic agencies
as manual scavengers.
The court was also not
happy with the civic agen-
cies for allowing such a
“disgraceful” practice to
exist in today’s age.
The Delhi High Court refused
to entertain a clutch of peti-
tions on striking down the ban
on the BBC documentary, India’s
Daughter, based on the
Nirbhaya gangrape.
The petitioners contended
that the ban imposed by the trial
court in March 2015 infringes
upon the fundamental rights of
the freedom of speech and
expression. They also cha-
llenged the center’s direction to
TV channels asking them not to
telecast the film.
The Court ruled that it was up
to the trial court to take a deci-
sion as the issue was before it. It
also observed that the trial court
was capable of dealing with the
case and there was no need to
intrude using special powers
(Article 226 and 227) as the
matter was still being probed.
As far as the center’s direc-
tion was concerned, the Court
felt it was only advisory in
nature.
Trial court to decide on
Nirbhaya documentary
32 August 31, 2016
The law finally caught up with
Mahmood Farooqui, accused of
raping an American research scholar
at his home in New Delhi in
2015. A special Fast
Track Court awarded
him a seven-year
jail term along with
a fine of `50,000.
The Court felt
that the rape sur-
vivor’s allegation,
who had herself
testified in Court,
against the 38-year-
old Peepli Live co-
director was reli-
able enough.
It also asked the
Delhi State legal Services Authority
to compensate all expenses incurred
by the rape survivor while fighting
her case in India.
The Special Court
also took into acc-
ount the state-
ments given by
one of Faroo-
qui’s old friends,
who was
responsible for
connecting
Farooqui with
the woman,
and another
childhood
friend of the
filmmaker.
The Gujarat government’s notifi-
cation to set aside 10 percent
seats for the economically back-
ward classes in the general catego-
ry was struck down by the Gujarat
High Court. The court ruled that it
was “unconstitutional” and “illegal”.
People from higher castes with
an annual income of `6 lakh
were placed in the economically
weaker category by the state
government.
The Court observed that
poor income was not an indi-
cation of backwardness. It
contended that the govern-
ment’s decision violated the
cap of 50 percent seats for
reservations set by the Sup-
reme Court. It struck down the
contention of the state govern-
ment that the quota was a classi-
fication and not reservation and
pulled it up for arriving at a decision
without any empirical study.
The Court’s judgment came
after it heard petitions challenging
the notification. The state govern-
ment has moved the Supreme Cou-
rt against the High Court verdict.
Farooqui given seven-year term
Quota for EWCs unconstitutional No murder in Jiah
Khan case
After getting a response from the CBI on the
Jiah Khan suicide case, the Bombay High
Court fixed the next hearing for August 23 and
said that till then the interim stay on trial
against Sooraj Pancholi will continue. The cen-
tral investigating agency, in its submission,
reiterated in the Court that murder was ruled
out and it had no interest in shielding Pancholi,
the accused. Jiah’s mother has approached
the High Court pleading that Pancholi had
murdered her daughter.
Life term for Abu
Jundal
Sayed Zabiuddin Ansari alias Abu Jundal
was sentenced to life by a MCOCA Court
in Mumbai for their involvement in the 2006
Aurangabad arms haul case. Six others were
also given life terms. They were held guilty
under the Unlawful Activities Prevention Act
and other sections. Jundal is also an accused
in the 26/11 terror attacks.
Need laws on cow
slaughter
The Himachal Pradesh High Court has asked
the central government to come up with a
law that bans cow slaughter in India. The
Court also wanted the center to stop import
and export of cow or calf, as well as ban the
sale of beef and beef products, all within six
months. It did not agree with the center’s con-
tention that it was the state’s prerogative to
decide on the issue.
This is the second time that the High
Court has issued the verdict. It did the same
last October.
— Compiled by Prabir Biswas; Illustrations: UdayShankar
33INDIA LEGAL August 31, 2016
COURTS/ Subhas Chandra Bose Funds
W
HEN Subhas Chandra
Bose took over the lead-
ership of the Indian
Independence League
and the Indian National
Army (INA) from an ageing Rash Behari
Bose on May 11, 1943, after his radio broad-
cast from Tokyo, he had the arduous task of
rebuilding it into a hard-nosed battle regi-
ment which it had ceased to be. The idea
was to return the INA to its full potential
with the help of Imperial Japan and, to an
extent, Hitler’s Germany. The funds for this
huge task mostly came from Japan which
also provided the Andaman and Nicobar
Islands as a base for the government-in-
exile after Singapore was used as a base.
Bose, though, had his feet on the ground
and realized that to be able to carry out daily
duties and to fund the huge expenses of a
standing army he needed funds that were
not tied to the imperial design. Bose, thus,
sent out an appeal to Indians within the
country and to all expatriates (especially in
the Far East) to send in money and all that
they can afford. The response was rousing
and the money collected at the provincial
Azad Hind Bank in Singapore is said to have
amounted to `114 crore and gold orna-
ments, 11.3 kg (some estimates put it at a
WhereisNetaji’s“Treasure”?On July 29, a PIL was filed in Calcutta High Court asking for an inquiry
commission to look into the disappearance of gold and jewelry of the
INA. Could this stir another Hornet’s Nest?
By Sujit Bhar
34 August 31, 2016
UNI
staggering 900kg). They were said to be dis-
tributed among banks in Bangkok, Burma,
Malaya and other places in Southeast Asia.
AZAD HIND BANK
Post the historic Imphal victory, the British
came back with a vengeance and the INA
was defeated. That, and the huge setbacks
that Japan was suffering in war, prompted
the Japanese to start diverting funds to the
front tackling American advances. Bose
escaped, carrying a part of the “treasure” in
suitcases, while part of it lay in Azad Hind
Bank in Singapore’s accounts. Bose’s where-
abouts have remained disputed till date.
The large amount of money reported to
be in the said banks too remained disputed.
On July 29, a PIL was filed in Calcutta High
Court seeking an order directing the center
to constitute an inquiry commission and
submit a report on the whereabouts of the
INA “treasure” “received by the government
after transfer of power and submit a report
to the court”.
The “treasure” obviously refers to the
monies and the gold, reportedly at the banks
and the “received” tag emanates from a ref-
erence to an alleged letter written by the
then governor of Singapore on May 6, 1950,
to the secretary of state for the colonies in
London. In the letter, the governor had alle-
gedly communicated that the gold received
from INA funds at Singapore after the end
of World War-II weighed approximately
5,634 gms and that it was deposited in the
Indian Overseas Bank. And the clincher in
the PIL is that the gold was deposited here
in the name of Jawaharlal Nehru!
The fact that such allegations have been
made without substantial documentary evi-
dence shows that there seems to have been
no paper trail vis-à-vis the said money.
Admitting the PIL, the Calcutta High
Court division bench of Chief Justice
Manjula Chellur and Justice Arijit Banerjee
directed the center to file an affidavit within
four weeks. The matter has been fixed for
final hearing after eight weeks.
EXTENSIVE EMBEZZLEMENT?
After submitting the petition on behalf of
activist Surojit Dasgupta, advocate Rudra-
jyoti Bhattacharya alleged that there has
been extensive embezzlement of INA
“funds” at various stages. According to the
petitioners, “for continuance of provincial
government of Azad Hind in exile and fund-
ing India's freedom struggle, Netaji had
appealed to people of Indian origin to con-
tribute so as to materialize the aim and
objective of the Indian National Army”.
They further said the donations, which “in
accumulation, amounted to several hundred
crores (of Rupees) in cash, gold and jew-
ellery”, were deposited in the said banks.
One of the foundations of this PIL seems
to be a top secret letter dated October 20,
1951, signed by KK Chettur, a member of the
Indian liaison mission in Tokyo, and
addressed to S Dutt, secretary, Common-
wealth Relations. The letter allegedly states
that Bose’s call for financial help from the
people of India and expatriates resulted in
donations pouring in, and that as of January
26, 1945, donations in cash, gold (11kg
IN COMMAND
(Facing page) A
portrait of Netaji
at an exhibition
(Above) Subhas
Chandra Bose
supervising his
army
(Below) Indian
National Army’s
women’s wing
35INDIA LEGAL August 31, 2016
300 gm) and other valuables received by the
Azad Hind government in exile were equal
to his (Netaji’s) weight. The PIL does not say
so, but some reports have talked about a
“war chest” of 100 kg of gold and jewelry.
It wasn’t just the gold that has been miss-
ing, says the petition. The petitioners quote
one PK Banerjee of the Indian Embassy in
Japan who had written another top secret
letter dated March 7, 1961, to the then joint
secretary, Ministry of external affairs in
Delhi. In it, Banerjee had allegedly des-
cribed that he had seen in the INA “trea-
sure” a priceless emerald Buddha statuette
of an amazing 17,880 carats. The value of
that has not been ascertained. The PIL says
that there are no less than 37 IB and
Ministry of External Affairs files which have
references to the INA treasure, but most of
them are still classified.
According to the petition, there is anoth-
er file, this one with the PMO—the petition-
ers claim that the file No. is 2(67)/56-
71PM—which “refers to a trust formed
under the supervision of the Working
Committee of the Indian National Congress
set up to handle a sum of `2 lakh of the INA
fund. Nehru and Bidhan Chandra Roy (erst-
while Congress leader and former chief min-
ister of West Bengal) were among the signa-
tories of the trust deed”.
The value of the “treasure” apart, the PIL
stresses on the embezzlement issue. This
has been done for so long by so many that
the money has virtually been lost. That there
was a large amount of money and gold in the
banks is incontrovertible.
BOSE WEIGHED
Kolkata-based Aruna Chatterjee, a member
of INA's Jhansi Brigade (the women’s wing)
has been reported in the media as recalling
one incident in Rangoon (now Yangon)
where Subhas Bose was actually weighed
against the gold ornaments. Not that he
liked the idea of being weighed against gold
(some reports say he was totally against
this), but he probably gave in to public pres-
sure. “Where has this huge wealth gone?”
Chatterjee has asked. “I understand that the
INA used some of this during the War. But
then, a portion of it was transferred to India.
The country wants to know who is the cus-
todian of this wealth? The government
needs to come clear.”
Whatever be the fate of the PIL, it is clear
that there needs to be some clarity on the
issue with Bose being the huge public figure
that he was. A public outcry had resulted in
the NDA government, especially its leader
Narendra Modi, promising a declassifica-
tion of related files for the public. But when
they were declassified, the only controversial
fact that came out was that the Congress
had tailed Bose’s family for a decade after
Independence. While this put the Congress
in a poor light, the rest of the revelations
were so mundane that one wondered why
they were classified as “Secret” at all.
Netaji researcher R Moitra told India
Legal: “Basically, we Indians have been
taken on a wild-goose chase for a long, long
time. For example, I am sure there is no con-
nection between Netaji’s death/disappear-
ance with Renkoji temple in Japan where
the freedom fighter’s ashes were allegedly
kept after recovery from a plane crash. It is
complete hogwash, and politicians and oth-
ers have taken the opportunity to make gov-
ernment-funded Japan visits allegedly to
pay homage at the temple, while the real
story lies hidden in those top secret files.
This PIL would face a rebuff from the gov-
ernment. Slowly, this too, will gather dust
till another one comes along.”
ONE MORE GIFT
Family members of
Subhas Chandra Bose
presenting his portrait
IL
Bose’s call for
help from the
people of India
and expatriates
resulted in
donations
pouring in, and
as of January
26, 1945,
donations in
cash, gold (11kg
300 gm) and
other valuables
received by the
Azad Hind
government in
exile were equal
to his (Netaji’s)
weight.
36 August 31, 2016
UNI
COURTS/ Subhas Chandra Bose Funds
INDIA LEGAL August 31, 2016 37
Third party insurance
premium to go up
In a move to provide quick relief to the
families of those killed or grievously
injured in road mishaps, the transport
ministry may increase third party insur-
ance premium for motor vehicles by 10
to 15 percent after amendments to the
Motor Vehicles Act are passed. The rea-
son cited for this increase is the substan-
tial raise in compensation proposed in
the amendments for accident victims.
The compensation will be increased to
`2 lakh from `25,000 in the case of
death in hit-and-run cases while in
cases involving grievous injuries, it
would go up to `5 lakh. The compensa-
tion will have to be paid within 30 days
by insurance companies as per the pro-
posed amendments. Also, penalty for
driving a vehicle without insurance
would be doubled.
A merger after 94 years?
The Rail Budget may be merged with the General
budget after 92 years. The Finance Ministry is exam-
ining the Railway ministry’s proposal of merging the two.
If if happens, the burden on the railway ministry will be
shifted to the finance ministry since the former is facing a
severe revenue deficit at present, reports The Times of
India. On account of the Seventh Pay Commission rec-
ommendations, Railways is facing an additional burden
of `30,000 crore. The Railways will also be rid of the
annual dividend currently paid for gross budgetary sup-
port from the government if the merger takes place.
— Compiled by Karan Kaushik
Helmets must for kids above 4 years
Katju faults Lodha committee
Former Supreme Court judge,
Markandey Katju, has dubbed
the Justice RM Lodha Committee,
appointed for probing BCCI irreg-
ularities, as “unconstitutional and
illegal”. Katju has been appointed
by the BCCI to advice on the SC
verdict on implementation of the
Justice Lodha committee recom-
mendations. He advised the Board
to file a review petition before a
larger bench of the apex court and
not to meet the Committee as
scheduled on August 9 terming
the panel as "null and void”.
Meanwhile, the BCCI has been
asked to implement the Lodha
Committee recommendations by
October 15 and the cricket body,
in turn, will submit its “first
progress report” to the panel
by August 25.
22 lakh cases
stuck for over
10 years
As per latest statistics
released by
the  Supreme Court, by
May 31, courts across
the country had a pen-
dency of 2.18 crore cases
of which 27 percent or
59.3 lakh cases have
been  pending  for over
five years, reports The
Times of India.
Of the 59.3 lakh
cases pending for more
than five years, as many
as 22.3 lakh cases have
been on board of courts
for more than 10 years,
the eCommittee statis-
tics revealed.
The eCommittee
conceded that the
national average of dis-
posing of very old cases
has come down. The
National Judicial Data
Grid statistics revealed
that at the end of April
30, there were 27.4 lakh
undated cases pending
in various courts and it
increased to 28.8 lakh
cases by May 31.
The government has introduced
amendments to the Motor
Vehicles Act in the Lok Sabha,
including a proposal to make hel-
mets mandatory for children aged
above four years while travelling
on two-wheelers. Sikhs wearing
turbans will be exempt from this
rule. The amendments also seek to
make it mandatory for car passen-
gers aged below 14 years to be
secured with a safety belt or a
restraint system. Violation would
attract a fine of `1,000. The bill
specifies that the rider has to
“securely fasten” the headgear.
NATIONAL BRIEFS
FOCUS/ Child Labor Law
FailingourChildren
38 August 31, 2016
O
N paper, the amendments
to the Child Labour (Pro-
hibition and Regulation)
Act 1986 passed by the
Rajya Sabha on July 19
and cleared a week later by
the Lok Sabha look pro-
gressive. It bans employing children under
14 years and prohibits adolescents between
14-18 years from working in notified haz-
ardous industries.
Further, the new law stipulates harsher
punishments for employing children in
violation of the Act with a fine between
`20,000-`50,000 plus a six-month jail
term for first time offenders and a one- to
three-year jail term for those who repeat
the offence.
If the amended act is a step forward, as
projected by the government, why are child-
rights activists almost unanimous in their
criticism? It seems the devil is in the details
of the amended law. For example, the ban on
employing children below 14 years comes
Amendments to the Child Labour (Prohibition and Regulation)
Act 1986 proscribe employing children below the age of 14.
But exemptions in the new law render it open to gross misuse
By Ajith Pillai
WHEN HOME IS NOT
A HAVEN
Children working in
family based enterprises.
Learning the ropes or
losing innocence?
39INDIA LEGAL August 31, 2016
UNI UNI
with terms and conditions that make it
willy-nilly legal to employ them after school
hours and vacations in family businesses
and enterprises. Similarly, the number of
hazardous industries where adolescents and
children cannot be employed has been cut
from 83 under the old law to just three in
the amended Act, further opening the doors
to employing those below 18.
Seen from this perspective, the new law
has several provisos which are regressive. As
former bureaucrat and rights activists
Harsh Mander put it across in a signed col-
umn: “…on closer scrutiny, we discover the
same pattern as many other pronounce-
ments of this government vis-a-vis the poor:
The reality of what is being offered is the
reverse of what appears on paper.” For
example, he notes that under the amended
law, hazardous industries have been nar-
rowed down to those which are categorized
as such for adult workers “without recogniz-
ing the specific vulnerabilities of children”.
What are the apprehensions and reserva-
tions about the new law from field workers
who interact with children on the ground?
Chetna (Childhood Enhancement through
Training and Action) is a Delhi-based NGO
which has been working for child empower-
ment for the last 14 years. It believes that the
FOCUS/ Child Labor Law
WHERE DID
PLAYTIME GO?
Children may work
after school hours.
But who will
ensure that they
actually go to
school?
40 August 31, 2016
UNI
Chetna is not alone in expressing its con-
cern. Child Rights and You (CRY) has also
put on record its reservations. The organiza-
tion’s CEO, Puja Marwaha, has articulated
this position in the media: “Allowing chil-
dren to work in family enterprises is likely to
have far-reaching implications for their edu-
cation and learning outcomes, as well as
their health and overall development. These
children face issues of inattentiveness, fati-
gue and lesser attendance at school and lack
of playtime with peers in and after school.
Are they even left with an option to let go of
their economic roles, so essential to their
family’s survival? Working children remain
at great risk of dropping out of school.”
According to her, the amended law which
is “based on the premise that education and
work for children can go hand in hand” goes
against the spirit of the Right to Free and
Compulsory Education Act (RTE) 2009.
Marwaha also sees little merit in the
government justification for exempting
family businesses from the ban because, as
labor minister Bandaru Dattatreya inform-
ed the Rajya Sabha, in a family-run enter-
prise, the employer-employee relationship is
not typically what one normally sees and is
better bonded.
CRY’s studies have revealed that children
working in the unorganized sector like
new law will only serve to endorse child
labor and does not address the core issues of
children who are exploited from the age of
five or six.
Sanjay Gupta, director of Chetna spelt
out the core apprehensions to India Legal:
“By allowing children below 14 to work in a
family business or enterprise, the law has
opened the doors to exploitation. What does
family business mean? It includes establish-
ments and services run by the parents and
siblings as well as the extended family of the
mother and father of the child. This is very
vague as most exploited children are tutored
to say that they work for some chacha
(uncle) or the other when complaints are
registered with the police. Under the new
law, such work is permissible and in any
case, we don’t have a system by which the
police will go out of its way to verify if the
DNA of the child and his employer match.
Most police stations, we fear, will not enter-
tain complaints of child exploitation once
the child says he works with the consent of
his parents for a relative.”
But will the new law which bans children
from working during school hours encour-
age parents to send their children to school?
It may not, fear child rights activists. Notes
Gupta: “As many of us see it, many of the
children will register with schools but may
not actually attend classes. The fact that a
child is registered with a school will serve
literally as a certificate to work. The police
will henceforth not entertain complaints of
exploitation by an employer if a child is reg-
istered with a school and is working in a
family enterprise which could be almost
anything provided it’s not hazardous. In the
months to come, you will see a dramatic
increase in the number of children under 14
joining schools but whether they attend
classes is another question.”
As things stand, several government-run
schools across the country face the threat of
closure because of lack of students. In fact,
schools are known to approach child rights
groups to help them in getting students
enrolled at least for the record. The amend-
ed Child Labour Act will help shore up gov-
ernment statistics vis-à-vis number of stu-
dents admitted to a school.
“This bill uses
Indian family
values to justify
economic
exploitation of
children. It is
misleading the
society by
blurring the lines
between learning
in a family and
working in a
family enterprise
...Children have
been failed
again.”
—Kailash Satyarthi,
Nobel laureate
41INDIA LEGAL August 31, 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
India Legal 31 August 2016
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India Legal 31 August 2016

  • 1. NDIA EGALL August 31, 2016 `100 www.indialegalonline.com I STORIES THAT COUNT 5650 NayantaraRoy: LGvsKejriwal: BattlingfortheDurbar JusticeKSreedharRao: WhyBlanket ProtectionforJudges? Ajith Pillai Encouraging Child Labor 38 Sujit Bhar Mystery of Netaji’s Gold 34 Ramesh Menon Poisonous Milk 26 KASHMIR PLEBISCITE Bikram Vohra Forgotten POWs 60 “Don’tmakeafool ofyourself…”ThisadmonitionfromanAmericanprofessorcouldwellapplytotheeminent lawyer’scontroversialadvocacyofareferenduminthetroubledstate ByInderjitBadhwar88 PrashantBhushan
  • 4. AUGUST31,2016 Dial D for Defamation The apex court rapped Tamil Nadu CM J Jayalalithaa for filing a case too many against her critics and has asked her to exercise tolerance. INDIA LEGAL TEAM Tread Carefully, Prashant Bhushan The senior advocate calling for a plebiscite in the Valley distorts history and gives moral firepower to those hell-bent on preventing a resolution of the Kashmir crisis within the framework of the Indian Constitution, writes INDERJIT BADHWAR. Also, INDIA LEGAL BUREAU lists the several controversies that cast a shadow on the integrity of the champion PIL lawyer 8 LEAD 22 Mystery of Netaji’s Gold On July 29, a PIL was filed in Calcutta High Court asking for a probe into the missing “treasure”. Could this stir another hornet’s nest? SUJIT BHAR 34 26 VOLUME. IX ISSUE. 24 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi- 834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. For advertising & subscription queries r.stiwari@yahoo.com CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAmarUjalaPublicationsLtd.,C-21&22,Sector-59,Noida.Allrights reserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Bureau Chiefs Neeta Kolhatkar, Mumbai BN Tamta, Dehradun Principal Correspondent Harendra Chowdhary, Mathura Reporters Alok Singh, Allahabad Gaurav Sharma, Varanasi Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writer Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Sr Visualizer Rajender Kumar Graphic Designer Ram Lagan Photographer Anil Shakya Photo Researcher/News Coordinator Kh Manglembi Devi Production Pawan Kumar Convergence Manager Mohul Ghosh Senior Content Writer (Web) Punit Mishra Technical Executive (Social Media) Sonu Kumar Sharma Technical Executive Anubhav Tyagi Toxic Milk The top court has called for amending laws so that those adulterating the nourishing drink are punished more stringently. RAMESH MENON SUPREME COURT 4 August 31, 2016 COURTS
  • 5. REGULARS Quote-Unquote ........................................................... 6 Supreme Court.......................................................... 30 Courts.........................................................................32 National Briefs..................................................... 37, 49 International Briefs......................................................74 Campus Update.........................................................75 People ........................................................................82 Haryana and Delhi deny the existence of Najafgarh Jheel, claiming it is merely a depression in the ground where water collects. But the water body finds mention in several official records. NAYANTARA ROY The Lake that Never Was 68 FollowusonFacebook.com/indialegalmedia andTwitter.com/indialegalmedia 50 The Delhi High Court recently ruled in favor of the lieutenant-governor in the turf war between him and the chief minis- ter, Arvind Kejriwal. Its judgment is in line with constitutional provisions, says additional solicitor general Sanjay Jain. NAYANTARA ROY “Capital Belongs to All” Going against the Geneva Convention, 54 Indian soldiers captured by Pakistan during the 1971 war were never sent back. The Indian government too has been apathetic. BIKRAM VOHRA The Forgotten 54 60 76 HUMAN RIGHTS The Indian High Commission has notched up unpaid dues worth millions to London’s transport authorities as its cars refuse to pay congestion charges. SAJEDA MOMIN Fee or Tax? Cover Design: ANTHONY LAWRENCE Cover Photo: UNI INTERVIEW 64The Dalit community has consolidated itself like never before, emerging as a threat to the BJP in Gujarat and Uttar Pradesh. KALYANI SHANKAR The Una Uprising POLITICS ENVIRONMENT DIPLOMACY A new law proscribes employing children below the age of 14 but makes exceptions for those who work in family businesses outside school hours, laying it open to misuse. AJITH PILLAI 38Encouraging Child Labor While the Judges Protection Act of 1985 accords protection to judges for acts done during the discharge of their duties, they are also made liable for civil, criminal and disciplinary action on the advice of the High Court or the President. JUSTICE K SREEDHAR RAO 56Blanket Protection? LEGAL EYE Indirect taxes have been the bane of the common man. With a com- mon tax regime now in place, will corporates pass on the benefits to consumers? SUMIT DUTT MAJUMDER 44The GST Dream 5INDIA LEGAL August 31, 2016 FOCUS ECONOMY Cross-Border Heartbreak He travelled to Pakistan without a visa to rescue his lady friend from forced marriage. Now his parents are fighting a legal battle to bring him home. NEETA KOLHATKAR 54 SPECIAL STORY 80The opinion of the judiciary should be reflected only through judgments and not through oral observations, be it on Kashmir or any other contentious issue. DEVADATT KAMAT No Sermons Please! MY SPACE
  • 6. “I have ended my fast today because I want power. I want to be able to have the power to repeal AFSPA from Manipur. I want to become the Chief Minister of Manipur to be able to do this.” —Irom Sharmila Chanu, while addressing a press conference on the day she broke her 16-year-old hunger strike “All our PMs have done their best to improve relations with our neighbours but yeh padosi hai ki maanta hi nahin hai (this neighbour does not agree).” —Home Minister Rajnath Singh, referring to Pakistan’s continuing support to terrorism, on NDTV.com “It makes me angry that people are running shops in the name of cow protection… Some people indulge in anti-social activities at night, and in the day masquerade as cow protectors.” —PM Narendra Modi, at a townhall-style speech to mark the second anniversary of “MyGov initiative” in New Delhi “I can say with confidence there has never been a man or a woman— not me, not Bill Clinton, nobody— more qualified than Hillary Clinton to serve as president of the United States of America.” —US President Barack Obama, endorsing the next presidential candidate Hillary Clinton at Philadelphia, US “You know we have a treaty with Japan, where if Japan is attacked, we have to use the full force and might of the United States. If we’re attacked, Japan doesn’t have to do anything. They can sit home and watch Sony television, OK?" —Republican candidate Donald Trump, at a campaign event in Iowa “Goal of Team India at the Olympics: Rio jao. Selfies lo. Khaali haat wapas aao (go to Rio, take selfies, return empty- handed. What a waste of money and opportunity.” —Author Shobhaa De, on India's listless performance at the Rio Olympics, on Twitter QUOTE-UNQUOTE “Ms. De, kindly run on the hockey pitch for 60 mins & hold a rifle like Abhinav and Gagan. Bit tougher than u think.” —Hockey player Viren Rasquinha, tweeting in response to Shobhaa De’s criticism of Indian sportsmen 6 August 31, 2016
  • 8. LEAD/ Kashmir Plebiscite It is not anti-national to express dissent but in the light of the current crisis in Kashmir, it is inappropriate for people of stature to be shooting from the hip on issues such as referendum and plebiscite By Inderjit Badhwar A Lesson Mr Bhushan FAULTY UNDERSTANDING Prashant Bhushan raised the referendum issue on flawed premises for 8 August 31, 2016
  • 9. S INCE I started covering the trials and tribulations of Jammu & Kashmir starting in 1986 as a reporter and editor, I have met, interviewed and kno- wn every important actor on the scene—chief minis- ters, ministers, sepa- ratists, clergymen, exiled Pandits, slain lead- ers, bereaved mothers, governors, intelli- gence officials, Pak-trained border crossers, prime ministers in Delhi. You name them. My views on Kashmir, my understanding of “Kashmiriyat” and the socio-political psy- che that fuels this passionate, ineluctable identity-urge were derived from the people and wisdom of that soil and not from propa- gandist-posturing by either Delhi or Rawal- pindi and its paid apologists and hit men. My outlook is well-known. The problem is between Delhi and the people of Kashmir and not between India and Pakistan. Pak- istan has no role to play in this except that of a blood-stained mischief-maker into whose hands Indian governments and politicians have stupidly played since 1948. That is why statements by lawyers like Prashant Bhushan, the uncrowned Emperor of India’s PIL domain, advocating a ple- biscite of referendum in Kashmir, distort his- tory and give moral firepower to those hell- bent in preventing a just resolution of Kash- miri grievances within the Indian union. There are many who speak like Bhushan. Particularly the Pakistani rulers and their surrogates in Kashmir. And possibly Indian “liberals” and outfits like People’s Union for Civil Liberties (PUCL) of which Bhushan was an integral leader. Pakistani leaders will nat- urally talk this language because it fits the ideological underpinning of their state and raison d’etre. For them, historical distortion is a chronological compulsion because ple- biscite means a choice between India and Pakistan, and not azaadi (independence) VALLEY OF DISCONTENT J&K has erupted in protests on several occasions since 1953, the latest being the death of Burhan Wani 9INDIA LEGAL August 31, 2016 UNI
  • 10. which most Kashmiris dream about, albeit with different nuances and interpretations. When a man of Bhushan’s eminence talks of a referendum, he provides further ideological ammunition to pro-Pakistani elements with- in Kashmir—the hardliners bent on sabo- taging peaceful solutions between Delhi and Kashmir’s leaders. Positions harden. The cycle of violence escalates. W hen senior lawyers like Bhushan talk plebiscite, saner voices in Pakistan like Air Marshal Asgar Khan, a war hero, who openly says on Pakistan TV that his own nation was the aggressor in Kashmir, and that Kashmiri integrity was protected by the Indian Army at the invitation of the Kashmir government, and therefore Pakistan has no legitimacy in Kashmir, take a back seat. When the pro- plebiscite (read pro-Pakistani) sentiment gains ground in Kashmir, armed militancy thrives. Leaders of great stature like Abdul Ghani Lone, Mir Mustafa, Qazi Nissar, Maulana Farooq who were willing to find solutions within India, are brutally slain by outfits like the Hizbul-Mujahideen. Today’s uprising in the Valley is a replay of many similar upheavals from the past—in 1953 when Sheikh Abdullah was arrested; in 1964; in 1984 when Jammu Kashmir Liberation Front (JKLF) founder Maqbool Butt was hanged; in 1990 when over three lakh mourn- ers came out on the streets after the killing by security forces of militant Ashfaq Majid. 1990 was a watershed year, I wrote in a cover story for India Today (April 30, 1990). Even though there we- re mass protests in earlier years, the separatist forces had identifiable leaders who espoused secularism and th- ere were few, if any, terrorist assassinations of innocents. “But today, the movement is dominated by the money provided by Pakistan and Saudi Arabia and the muscle power of the pro-Pakistan, fundamentalist Jamaat-i-Is- lami and its Hizbul Mujahideen and Allah Tiger terror groups. The Jamaat is supposed to be strong in Baramula and Sopore and the “secular” JKLF in Srinagar and Anantnag. But this is now merely semantics. “For what once used to be a mass move- ment for the preservation of ethnic identity, of Kashmiriyat, of which Article 370 was sup- posed to be the symbolic guardian, has been consumed by a fundamentalist fury that gives the movement sustenance and spiritual guid- ance. The liberal spirit of sufism that had so infused the valley has now been exorcised.” The words I wrote then still ring true as Prime Minister Modi gropes for a solution following the killing of Burhan Wani. “The bottom line of the militants is secession. And the bottom line of the Indian government cannot go outside the constitution. The two positions are irreconcilable. The time for the- orizing, post-mortems and historical regurgi- tations is over. From the secessionists’ view- point, the insurgency has the Indian govern- ment exactly where it wants it—divided in dealing with the problem. “And temporary reverses must not be allowed to reverse the process of a sustained reclamation. The country can no longer The plebiscite was also to be conducted regionally, including in Gilgit and Baltistan. But Pakistan has ceded the region to China, which has invested billions there. MISGUIDED FURY Burhan Wani (2nd row, center) became a poster boy for the young generation of Kashmiri militants 10 August 31, 2016 LEAD/ Kashmir Plebiscite
  • 11. afford to behave like a tenant put on notice to vacate somebody else’s property.” I quote again from that article written in 1990 because there’s such a strong sense of déjà vu: “The bulk of the people follow what- ever institution wields the big stick. Today, that stick is in the hands of the militants. The primary task before the government is to re- establish its writ and show that it has the political will to do so. To demonstrate that the country will not compromise an inch of its territory. It was the absence of this mes- sage during the Farooq regime and a lack of clarity of purpose under VP Singh’s govern- ment that has hobbled the state administra- tion and given a certain strategic advantage to the secessionists. “Confusion and delay in regaining India’s lost administrative turf in Kashmir will sim- ply give Pakistan and the militants the most precious resource they can ask for—time. Their strategy is to wear New Delhi down to such an extent that the cost of maintaining Kashmir will become an impossible burden; or to keep a ready-made Pakistan inside India to be used by Pakistan to create con- stant problems.” “The view from New Delhi is that in the long run, time is on its own side because in the peaks and valleys that characterize terrorism all over the world, the fundamen- talists, when they realize that they can’t really break loose of India’s grip, when they begin suffering economically, will wear down and seek a solution with the Centre. But this is precisely the kind of thinking that led to escalating violence in Punjab. “In Kashmir the wait-and-wear- down attitude, considering how per- ilous the situation already is because of years of fence-sitting, is bound to make the problem even more intrac- table. The longer, for example, that security forces wait for orders to hit known training centers inside the val- ley’s villages—so far more or less out of bounds—the more powerful will terrorist cadres become.” This is why the Prashant Bhu- shans of this world must exercise extreme caution in their utterances on referendum or plebiscite while simultane- ously claiming – later—that Kashmir is an integral part of India. Because the damage is already done. Be it far from me to label Bhushan—or for that matter anybody who criticizes the Indian state—an “anti-national”. I am not in favor of dividing the country into nationals versus anti-nationals for political gain. Nor do I subscribe to the idiotic theory that pub- lic denunciation of corruption and proclama- tion of the desire for freedom from religious fanaticism, casteism, corruption and repres- sion, or the expression of a divergent view on international policies is secessionist or sedi- tious. Our Founding Fathers encouraged free speech and dissent with reasonable res- traints, with the burden of proof on the state to prove that public utterances had actually resulted in harm to India’s integrity. And I applauded the Supreme Court for striking down the pernicious censorship of the social media through 66-A of the IT Act. S o to Mr Bhushan I say, of course, express yourself by all means, but then, be ready to face the heat from those who would expose your statement as a bogus distortion of history. Bhushan’s argument championing referendum in Kashmir is built on historical quicksand, and he would do well to listen to renowned South Asian The UN resolution is very clear on plebiscite. There were three sequential and conditional steps. And the first step was that Pakistan was to demilitarize to the satisfaction of the UN body to be established. ISSUES OF IDENTITY The mass movement was originally for preservation of Kashmiriyat 11INDIA LEGAL August 31, 2016 UNI
  • 12. scholar Christine Fair, author, and professor of Peace and Security Studies at the presti- gious Georgetown University in the US. At a well-publicized seminar (available on YouTube), Ms Fair upbraided a Pakistani Fulbright Scholar for “making a fool” of him- self in saying that India was guilty of violat- ing international law and promises to the Kashmiri people by denying them the UN- guaranteed right to a plebiscite on joining India or Pakistan. She could well have been talking to Prashant Bhushan. The Fulbright scholar had argued that the UN pledge of a plebiscite gave Pakistan the legal basis for being a party to the Kashmir dispute. He also said that Islamist Jehadis were created and funded by the US and the CIA when the Soviets entered Afghanistan. The Kashmiri crisis, he said, preceded the Jehadi creation. “The Soviets were pushed out and the US left Pakistan and Afghanistan in the lurch.” Professor Fair’s retort is a textbook exam- ple of how to counter historical disinforma- tion. I reproduce parts of it verbatim: “Have you read the UN Security Council Resolution of 1948 (on plebiscite in Jammu and Kashmir)?” The Fulbright Scholar admitted he had not. She admonished him: “First thing I would ask you is to read it. Go to the UN Security Council Website and read that fabulous resolution. Every Pakistani points to it but nobody has actually read it. Take the actual version and compare that to the claims made by Pakistan’s permanent representative to the UN and you are going to understand your confusion. “T he resolution is actually very clear. There were three steps. They were sequential, and they were condi- tional. Very first step was that Pakistan was to demilitarize to the satisfaction of the UN body to be established. Then, conditioned upon the UN being satisfied that this demili- tarization (was complete), India was also supposed to de-militarize with a presence being permitted to defend itself against Pakistani aggression. “The third, both those steps having been taken in sequence to the preference of the UN, then the plebiscite would be held. So all those Pakistanis who are so upset about the plebiscite that never happened, they have their own government to blame because Pakistan never fulfilled the first necessary condition. So I’m going to encourage you to read that before ever making a fool of your- self again by presenting it in public. So just do yourself a favor by reading that document. “Second, I want you to learn a little about your own country’s Afghanistan policy. Sir, do you know that it was Zulfiqar Ali Bhutto who began the ISI cell in Afghanistan? It was also Bhutto who began setting up what became the “Seven Donkeys” before even the Soviet Union crossed over. Did you know this, Sir? (Answer: No.) “So this idea that somehow the United States used Pakistan in some sort of effort to expel the Soviets is a completely incorrect reading of your own history. After King Zahir Shah (of Afghanistan) was ousted and Moha- mmed Daoud Khan came to power and began pro-Soviet policies, driving the Isla- mists into Iran and Pakistan respectively, Zulfiqar set up an ISI cell so he could use those disenchanted and disenfranchised Islamists as vectors of Pakistan’s policies in Afghanistan. Did you know that we first sanctioned Pakistan in April of 1979 because of advances made in its nuclear weapons pro- gram? If we were so interested in sucking it into our evil Jehad designs we sure didn’t AirMarshalAsgarKhan ofPakistan A war hero, he openly says on Pakistan TV that his own nation was the aggressor in Kashmir, and that Kashmiri integrity was protected by the Indian Army. 12 August 31, 2016 LEAD/ Kashmir Plebiscite
  • 13. make that difficult for our- selves because when the Soviets did cross over we had to do a bunch maneuvering to get a waiver. And do you know that the first of that money did not get into Pakistan until 1982 because of that requirement to get a waiver? “So before you go blaming the United States for using and abusing poor Pakistan, you should familiarize yourself with your own history because Pakistan has been instrumen- talizing Islamists long before the Americans even knew what an Islamist was. Now going to your next point about leaving Pakistan high and dry. Let’s talk about the Pressler Amendment. The Pressler Amendment was actually designed so Pakistan can continue proliferating, while we continue arming you, because we had first sanctioned you in April 1979. Everyone understood the name of this game. When we withdrew in 1990, we withdrew. Pakistan, however, continued mucking around with the Islamists. So this idea that the Jehad today or the Taliban today or the Al Qaeda, this is really a grotesque empirical error… that I really don’t quite expect from Fulbright students because everything you said is a highly stylized re-telling that you get from Pakistani media in your curriculum.” Incidentally, the plebiscite was also to be conducted regionally—separately for Jam- mu, Kashmir, Ladakh, Gilgit and Baltis-tan. But as an analyst correctly points out in an internet post, the plebiscite /referendum is no longer valid for other reasons as well: Because of Punjabi-speaking settlers, the demographics have changed significantly in PoK; Pakistan has ceded a part of Kashmir to China (Shaksgam Valley); China has invested billions of dollars in Gilgit-Baltistan and even has some troop presence there. Would Pakistan be willing to hand over Gilgit-Baltistan to India—even temporarily? Handing over Gilgil-Baltistan means China and Pakistan would no longer share any borders. ************************* THE UN RESOLUTION EVERYBODY TALKS ABOUT BUT NO ONE CARES TO READ Resolution 47 (1948) On the India-Pakistan question submitted jointly by the Representatives for Belgium, Canada, China, Colombia, the United Kingdom and United States of America and adopted by the Security Council at its 286th meeting held on 21 April, 1948. (Document No. 5/726, dated the 21st April, 1948). THE SECURITY COUNCIL Having considered the complaint of the Government of India concerning the dispute over the State of Jammu and Kashmir, hav- ing heard the representative of India in sup- port of that complaint and the reply and counter complaints of the representative of Pakistan. Being strongly of opinion that the early restoration of peace and order in Jammu and Kashmir is essential and that India and Pakistan should do their utmost to bring about cessation of all fighting. Noting with satisfaction that both India and Pak- istan desire that the question of the accession of Jammu and Kashmir to India or Pakistan should be decided through the democratic method of a free and impartial plebiscite, Considering that the continuation of the dis- pute is likely to endanger international AuthorChristineFair She upbraided a Pakistani Fulbright Scholar for saying that India was guilty of violating international law and promises to the Kashmiri people by denying them the UN-guaran- teed right to a plebiscite on joining India or Pakistan. 13INDIA LEGAL August 31, 2016
  • 14. peace and security, Reaffirms its resolution 38 (1948) of 17 January 1948; Resolves that the membership of the Commi- ssion established by its resolution 39 (1948) of 20 January 1948, shall be increased to five and shall include, in addition to the member- ship mentioned in that Resolution, represen- tatives of... and ..., and that if the member- ship of the Commission has not been com- pleted within ten days from the date the adoption of this resolution the President of the Council may designate such other Mem- ber or Members of the United Nations as are required to complete the membership of five; Instructs the Commission to proceed at once to the Indian subcontinent and there place its good offices and mediation at the disposal of the Governments of India and Pakistan with a view to facilitating the taking of the necessary measures, both with respect to the restoration of peace and order and to the holding of a plebiscite by the two Governments, acting in co-operation with one another and with the Commission, and further instructs the Commission to keep the Council informed of the action taken under the resolution; and, to this end. Recommends to the Governments of India and Pakistan the following measures as those which in the opinion of the Council and appropriate to bring about a cessation of the fighting and to create proper conditions for a free and impartial plebiscite to decide whe- ther the State of Jammu and Kashmir is to accede to India or Pakistan. A - RESTORATION OF PEACE AND ORDER 1. The Government of Pakistan should undertake to use its best endeavours: (a) To secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistani nationals not normally resident therein who have entered the State for the purposes of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fight- ing in the State; (b) To make known to all concerned that the measures indicated in this and the following paragraphs provide full freedom to all sub- jects of the State, regardless of creed, caste, or party, to express their views and to vote on the question of the accession of the State, and that therefore they should co-operate in the maintenance of peace and order. 2. The Government of India should: (a) When it is established to the satisfaction of the Commission set up in accordance with the Council’s Resolution 39 (1948) that the tribesmen are withdrawing and that arrange- ments for the cessation of the fighting have become effective, put into operation in con- sultation with the Commission a plan for withdrawing their own forces from Jammu and Kashmir and reducing them progres- sively to the minimum strength required for the support of the civil power in the mainte- nance of law and order; (b) Make known that the withdrawal is tak- ing place in stages and announce the comple- tion of each stage; When the Indian forces shall have been reduced to the minimum strength mentioned in (a) above, arrange in consultation with the Commission for the stationing of the remaining forces to be car- ried out in accordance with the following principles: (i) That the presence of troops should not afford any intimidation or appearance of intimidation to the inhabitants of the State; (ii) That as small a number as possible CLEAR AGENDA Sheikh Abdullah dreamt of an independent Kashmir, certainly not merger with Pakistan In Kashmir the wait-and-wear- down attitude, considering how perilous the situation already is because of years of fence-sitting, is bound to make the problem even more intractable. 14 August 31, 2016 LEAD/ Kashmir Plebiscite
  • 15. should be retained in forward areas; (iii) That any reserve of troops which may be included in the total strength should be located within their present base area. 3. The Government of India should agree that until such time as the plebiscite admin- istration referred to below finds it necessary to exercise the powers of direction and super- vision over the State forces and policy provid- ed for in paragraph 8, they will be held in areas to be agreed upon with the Plebiscite Administrator. 4. After the plan referred to in paragraph 2 (a) above has been put into operation, per- sonnel recruited locally in each district should so far as possible be utilised for the re- establishment and maintenance of law and order with due regard to protection of mino- rities, subject to such additional require- ments as may be specified by the Plebiscite Administration referred to in paragraph 7. 5. If these local forces should be found to be inadequate, the Commission, subject to the agreement of both the Government of India and the Government of Pakistan, should arrange for the use of such forces of either Dominion as it deems effective for the pur- pose of pacification. B - PLEBISCITE 6. The Government of India should under- take to ensure that the Government of the State invite the major political groups to designate responsible representatives to share equitably and fully in the conduct of the administration at the ministerial level, while the plebiscite is being prepared and carried out. 7. The Government of India should under- take that there will be established in Jammu and Kashmir a Plebiscite Administration to hold a Plebiscite as soon as possible on the question of the accession of the State to India or Pakistan. 8. The Government of India should under- take that there will be delegated by the State to the Plebiscite Administration such powers as the latter considers necessary for holding a fair and impartial plebiscite including, for that purpose only, the direction and supervi- sion of the State forces and police. 9. The Government of India should at the request of the Plebiscite Administration, make available from the Indian forces such assistance as the Plebiscite Administra- tion may require for the performance of its functions. 10. (a) The Government of India should agree that a nominee of the Secretary-Gene- ral of the United Nations will be appointed to be the Plebiscite Administrator. The Ple- biscite Administrator, acting as an officer of the State of Jammu and Kashmir, should have authority to nominate the assistants and other subordinates and to draft regula- tions governing the Plebiscite. Such nomi- nees should be formally appointed and such draft regulations should be formally promul- gated by the State of Jammu and Kashmir. The Government of India should under- take that the Government of Jammu and Kashmir will appoint fully qualified persons nominated by the Plebiscite Administrator to act as special magistrates within the State judicial system to hear cases which in the opinion of the Plebiscite Administrator have a serious bearing on the preparation and the conduct of a free and impartial plebiscite. The terms of service of the Administrator should form the subject of a separate negotiation between the Secretary- General of the United Nations and the Government of India. The Administrator NO LOCUS STANDI Indian army countering pakistani advances in 1947. Pakistan is nothing but an aggressor and mischief-maker in the state 15INDIA LEGAL August 31, 2016
  • 16. Paramvir Chakra Awardee Bana Singh, Subedar Major and Honorary Captain Those who are tarnishing the image of army have no right to live in this country. The army is protecting the country. It’s people’s duty to show gratitude to, and respect the land which is nurturing you. You have to protect its image. We have to fight these traitors. Justice Vijender Jain, Chairman of the Human Rights Commission, Government of Haryana If you look at all the elections held since 1947—be it parliamentary, or legislative assemblies—people have exercised their right to vote. And whenever separatist forces have contested, they have never succeeded. By talking of referendum whom are we help- ing? Are we helping national interest, or sep- aratists, or terrorists, or Pakistan? The Bar Council has nothing to do with this matter. Our democra- cy gives people the right to speak anything because the essence of democracy is dissent. Justice Santosh Hegde, former solicitor general of India, retired Supreme Court judge Jammu & Kashmir is an integral part of India. Soon after Independence, there was some problem with some vested interests, but that is under the UN resolution. Of late, some people have been internally instigated by external forces to create disturbances in the state and I am sure that the forces will answer them properly. As for some lawyers asking for plebiscite, I think they have no interest in Kashmir at all and I don’t think they know law either. I think the Bar Council of India should take action against them because they have no patriotism. The constitution doesn’t prevent anyone from saying anything, but the sedition law, under Section 124A of the Indian Penal Code, speaks about it. Anybody who utters anything— speaks or acts—against the country is guilty of sedition. Martyr Pawan Kumar’s father There’s only one institution in the country which works with love and devo- tion to the country, and is ready for supreme sacrifice in the service of the nation. The jawans posted in the North- East, in -50 degree temperatures and in the sweltering 50 degree conditions of Rajasthan, protect our country and lay their lives, but it’s some people sitting in the center who have got the right to declare them mar- tyrs. To those who argue that our sol- diers get a salary for the work they are doing, I would ask, in which other organ- ization are people ready to give their life for a salary? OthervoicesonKashmir andthearmy’srole Pawan Kumar 16 August 31, 2016 LEAD/ Kashmir Plebiscite
  • 17. should fix the terms of service for his assis- tants and subordinates. The Administrator should have the right to communicate directly, with the Govern- ment of the State and with the Commission of the Security Council and, through the Commission, with the Security Council, with the Governments of India and Pakistan and with their representatives with the Commi- ssion. It would be his duty to bring to the notice of any or all of the foregoing (as he in his discretion may decide) any circumstances arising which may tend, in his opinion, to interfere with the freedom of the Plebiscite. 11. The Government of India should under- take to prevent to give full support to the Administrator and his staff in preventing any threat, coercion or intimidation, bribery or other undue influence on the voters in the plebiscite, and the Government of India should publicly announce and should cause the Government of the State to announce this undertaking as an international obliga- tion binding on all public authorities and officials in Jammu and Kashmir. 12. The Government of India should them- selves and through the Government of the State declare and make known that all sub- jects of the State of Jammu and Kashmir, regardless of creed, caste or party, will be safe and free in expressing their views and in vot- ing on the question of the accession of the State and that there will be freedom of the Press, speech and assembly and freedom of travel in the State, including freedom of law- ful entry and exit. 13. The Government of India should use and should ensure that the Government of the State also use their best endeavour to effect the withdrawal from the State of all Indian nationals other than those who are normally resident therein or who on or since 15th August 1947 have entered it for a lawful pur- pose. 14. The Government of India should ensure that the Government of the State releases all political prisoners and take all possible steps so that: (a) all citizens of the State who have left it on account of disturbances are invited and are free to return to their homes and to exercise their rights as such citizens; (b) there is no victimisation; minorities in all parts of the State are accorded adequate pro- tection. 15. The Commission of the Security Council should at the end of the plebiscite certify to the Council whether the plebiscite has or has not been really free and impartial. C - GENERAL PROVISIONS 16. The Governments of India and Pakistan should each be invited to nominate a repre- sentative to be attached to the Commission for such assistance as it may require in the performance of its task. 17. The Commission should establish in Jammu and Kashmir such observers as it may require of any of the proceedings in pur- suance of the measures indicated in the fore- going paragraphs. 18. The Security Council Commission should carry out the tasks assigned to it herein. The Security Council voted on this Resolution on 21-41948 with the following result: In favor: Argentina, Belgium, Canada, China, France, Syria, the UK and the USA. Against: None Abstaining: Belgium, Colombia, Ukrai- nian S.S.R. and USSR. IL LITANY OF VIOLENCE (Clockwise from above left) JKLF founder Maqbool Bhatt was hanged in 1984, while Abdul Ghani Lone, Maulana Farooq and Qazi Nissar, who were willing to find solutions within India were slain by extremists 17INDIA LEGAL August 31, 2016
  • 18. I T is rightly said that Prashant Bhushan is a man who loves wearing different hats. One day, he is a champion PIL lawyer. On another, he dons the mantle of an activist. And then, literally at the drop of a hat, he is seen in the garb of a politician. Over the years, the multiple roles he enacts have ensured him a place in the news, often for all the wrong reasons. In fact, he has courted controversy and there is no dearth of accusations against Bhushan. These include ques- tionable land deals, filing PILs serving vested interests by the dozen and operat- ing numerous NGOs which nurture questionable agendas. It is another mat- ter that such allegations run counter to the anti-corruption crusader image he projects. Changing tracks is another art he has mastered. Remember Bhushan was ini- tially involved with the India Against Corruption movement led by Anna Hazare but soon fell out with him and joined Arvind Kejriwal to set up the Aam Aadmi Party (AAP). However, he quick- ly announced differences with the “muf- fler man” and formed Swaraj Abhiyan, which is strongly opposed to the AAP. Bhushan has also courted contro- versy on several counts. He has labeled judges corrupt and has advocated for a plebiscite in Kashmir. He infamously demanded a referendum on deployment of security forces in Naxal-affected areas. More recently, he attracted criticism for condemning the killing of militant commander Burhan Wani by the armed forces in Kashmir. Here are some of the controversies he is associated with: FILING SUSPECT PILs Sources have it that Prashant Bhushan shoots off anonymous complaints listing charges against individuals/organiza- tions and then uses these to file PILs. In fact, Bhushan was pulled up by the Chief Justice of India TS Thakur for running a LEAD/ Prashant Bhushan There are questions and issues that cast a shadow on the integrity of the loquacious PIL lawyer By India Legal Bureau CourtingControversy 18 August 31, 2016 DUBIOUS PURCHASE This tony civil lines property in Civil Lines area of Allahabad was bought by Shanti Bhushan, Prashant’s father, for a paltry amount
  • 19. PIL center. The court asked: “Why should we hear PILs filed by CPIL (Centre for Public Interest Litigation that Bhushan is associated with)? You are a professional litigant. Can you become a ‘center’ for PIL? Can anyone walk into your office and tell you 'I want to file a PIL’?” The apex court observed further: “Prashant Bhushan, you have an image of a crusader. But can you become the centre for public interest litigation? Can the system be taken for a ride in such a manner? We cannot allow this. We must be satisfied that you have a committee which scrutinizes the complaints and allows only genuine ones to be converted into public interest litigations…We must have the confidence that when CPIL files a petition, it is not prompted by someone who has a vested interest, even though the cause may appear genuine. If a corporate rival gives documents for filing of a PIL, will you do it? Why would that corporate source not come out in the open and pursue the litigation in its own name? Why should CPIL be a front for settling corporate rivalry or personal vendetta? CPIL should not become proxy litigant. It should not become an instrument in the hands of commer- cial players.” Bhushan maintained that CPIL was formed by senior lawyers and had a com- mittee of senior advocates, scrutinising every petition before it is filed in court. “There is a committee which comprises Fali Nariman, Anil Divan, Kamini Jaiswal, my father and myself. All peti- tions are scrutinized by us,” he said. Fali Nariman and the others quickly reacted, saying that they had nothing to do with the PILs as claimed by Prashant. JAIN HAWALA CASE This involved payments allegedly recei- ved by politicians through four hawala brokers, namely the Jain brothers. It was a US$18 million bribery scandal that implicated some of the country's leading politicians in the Nineties. Crusader- journalist Vineet Narain who was at the forefront of the expose said: “I have burnt my fingers with the Bhushans dur- ing my Jain Hawala crusade...contro- 19INDIA LEGAL August 31, 2016 INVESTIGATION OF AUDIO (Left) The clip of the telephonic conversation which reveals that the CD mentioning Prashant was not tampered (Below) The controversial Palampur property EXCLUSIVE!
  • 20. versy and suspicion had arisen even ear- lier on the Bhushans...after initially helping me in drafting the petition (Jain Hawala case), the Bhushans, made sev- eral attempts to sabotage the biggest crusade against corruption and finally derailed the case.” HIMACHAL LAND SCANDAL- 1 Prashant Bhushan found himself entan- gled in a land scandal in Himachal when he was found to have secured property by filing a false affidavit to ensure that he got domicile status (DS). Once he secured ownership he sold the land only to purchase another property which was possible because he had domicile status. The case is currently being investigated by the state government. HIMACHAL LAND SCANDAL-2 In February 2010, the BJP government in Himachal Pradesh permitted the Kumud Bhushan Educational Society, headed by Prashant Bhushan, to buy tea-estate land at Kandwari near Palampur in Kangra district to set up an educational institution on condition that it would be built within two years of purchase of the land. The clearance was given when there was a total ban on the sale of tea gardens in the state to non-agriculturists. The Congress government ordered a probe into the sale in March 2013 when it came to power. This is what the investigations revealed: Permission was granted to purchase 122 kanal (15.25 acres) of tea estate land to start an educational institute within two years. However, no school or college came up. Instead, an institute called “Shambhawana” was set up, which con- ducted occasional seminars and work- shops. It was not affiliated to any univer- sity or board. DIG AP Singh, head of the vigilance bureau, wrote to the state gov- ernment that there was a clear violation of rules and the property should be con- fiscated. The report said the educational institution required only 22 kanal (2.75 acres) of land, but the society purchased 122 kanal. STAMP DUTY EVASION CASE IN ALLAHABAD Prashant’s father, Shanti Bhushan bou- ght a house in the tony Civil Lines area of Allahabad for a paltry advance and then paid the remaining amount many years later. The property had been gross- ly undervalued during the sale. As a result stamp duty of `45,000 was paid for real estate worth about `20 crore. The Assistant of Stamp Duty in Allahabad, Dr KP Pandey, said Bhushan has been found guilty of evading stamp duty and the property and related taxes had been grossly under-valued. Shanti Bhushan and his three children were slapped a notice for alleged stamp duty evasion in 2011. A fine to the tune of `1.3 crore was slapped on Bhushan, his two sons Jayant and Prashant and daughter Shefali. 20 August 31, 2016 LEAD/ Prashant Bhushan Major General SP Sinha People like Prashant Bhushan are traitors. Prashant Bhushan’s father has said it and the laboratory of Government of India has confirmed it that it is Prashant Bhushan’s voice. His father also says that Prashant Bhushan files PILs and manages these very well in the court (see graph). These people are traitors. In what capacity can they talk about Kashmir? What public figures, andthose whohave worked with Bhushan sayabout him Ashok Pandit, film-maker Prashant Bhushan belongs to the cate- gory which I call “white-collar terrorists”. What kind of education has he got, and how did he become a lawyer? He should be in Pakistan and practise law there. He should go for psychological treatment. It’s not a normal man’s behavior.
  • 21. NOIDA FARM HOUSE CASE By declaring themselves as agriculturists by submitting a project report on the farm- ing they intended to do, Shanti Bhushan and Prashant’s brother, Jayant, became owners of 10,000 sq m farmland plots in Noida. What was not mentioned was the manner in which the Mayawati govern- ment allotted 10,000 sq m land to Bhushan senior and another plot of the same dimension to his son Jayant. There was also a question of conflict of interest, since Jayant appeared against Mayawati in the Noida Statue Park case. This land was allotted at a quarter of the prevailing mar- ket rate. DOCTORED CD CASE An audio CD surfaced in 2011, in which Shanti Bhushan claimed that son Prashant could manage (fix) any case for just `4 to 5 crore. He was purportedly speaking to a leading politician. However, Shanti Bhushan denied such a conversation took place. But after a few days, he agreed that he had met with the politician and had telephoned him. Prashant and Shanti Bhushan claimed that the CD was doc- tored and submitted a private lab report supporting their assertion. However, the expert who conducted the tests revealed that he had just listened to the audio with- out conducting tests to come to that prem- ise. The report was submitted in nine hours. Later, verification reports of the government and Delhi Police indicated that the CD was genuine. CONFLICT OF INTEREST When a PIL was filed in the Allahabad High Court against a builder, Shanti Bhushan insisted on appearing in the mat- ter. However, the petitioner said in court that he did not want Bhushan to represent him as he had a vested interest in the mat- ter. Shanti Bhushan then requested the court that he be appointed as amicus curi- ae in the case. The court turned this down saying that as he was an interested party he could not be appointed. ARUNDHATI ROY CASE The Supreme Court suo moto issued contempt notice in 2002 against Prashant Bhushan, Medha Patkar and Arundhati Roy for blocking the road leading to the apex court and hurling abuse on the court and judges. However, the court accepted the apology of Prashant Bhushan and Medha Patkar through their counsels, Ram Jethmalani and Shanti Bhushan. Arundhati Roy was sent to jail as she refused to apologise. Another contempt proceeding involving Prashant is pend- ing in the Supreme Court. BURHAN WANI CONTROVERSY Prashant Bhushan added further fuel to the recent Kashmir controversy over the killing of Hizbul Mujahideen commander Burhan Wani. The lawyer stated that most people suspected that Wani was killed by the security forces in a fake encounter. This was the line being pushed by separatist groups in the valley. 21INDIA LEGAL August 31, 2016 Vineet Narain, senior journalist I won’t indulge in a personal attack on any- one, but my experience with Prashant Bhushan has been very bitter. Bhushan was a co-petitioner with me in the Hawala case. How he cheated me during that case and tried to derail the case really hurt me. I have said this open- ly on channels and public meetings. What he is doing with PILs now—it’s for him to see, or for those who are at the receiving end, or the judiciary. Arvind Kejriwal, Chief Minister, Delhi (Recording of what he said about Bhushan after AAP’s landslide victory in 2015 Delhi Assembly elections) He left no stone unturned to ensure that we get defeated in the Delhi assembly elections. Had he been with any other party, he would have been kicked out. You do not know who he is... he is number one kameena (scoundrel). Kamal Haq, Panun Kashmir spokesman Respect towards the armed forces is a duty not only of citi- zens but also the ruler. The forces have never been so demoralized as in the last one year. If the ruler says in a public meeting that he ensured punish- ment for an army officer because of excesses, you are demoralizing the forces. And you are encouraging people like Prashant Bhushan who have such a thinking. There should be a law, wherein if you commit any kind of “violence” against the forces, it will be considered a war against the country. IL
  • 22. SUPREME COURT/TN/Defamation Cases A Supreme Court bench of Justices Deepak Mishra and Rohington F Nariman observed the following on July 28 while hearing a petition from actor- turned-TN politician Vijayakanth: “The penal provision of defamation (Sections 499 and 500 of the IPC) should not be used to throttle dissent … the court must step in, if there are continuous efforts to harass per- sons by filing a number of defamation cases. Just because any one calls a government corrupt or lacking in administrative ability he cannot be slapped with defamation case. There has to be a tolerance to criticism. Defamation cases cannot be used as a polit- ical counter weapon and cases for criticizing the government or bureaucrats create a chilling effect. Even though we upheld defamation law, if we find there is a deliber- ate design to engage government law offi- cers to file cases, it is the duty of the court to protect them. We direct the government of Tamil Nadu to furnish the complete list of Fighting StateFuryWith numerous defamation cases filed by the CM, the apex court has asked the state to be tolerant to criticism and give it a list of those in the firing line By India Legal Team 22 August 31, 2016 Anthony Lawrence The Hindu The Times of India India Today Rediff.com The Economic Times NDTV CNN IBN Times Now Junior Vikatan Nakkheeran weekly Anandha Vikatan
  • 23. defamation cases filed by the Chief Minister either through the office of the Public Prosecutor or otherwise within two weeks and we adjourn the case for further hearing to September 21.” These golden words gave some reprieve to Vijayakanth. The petition requested the court to stay the arrest warrant issued by a Tiruppur district sessions judge on a defamation case filed by Tamil Nadu Chief Minister J Jayalalithaa against Vijayakanth and his wife, Premalatha, for a public speech of theirs. The defamation case was filed on behalf of Jayalaithaa by the Tiruppur dis- trict public prosecutor. Interestingly, though the Supreme Court had stayed all the proceedings in this case in March 18 this year, the Tiruppur sessions judge went ahead and issued non-bailable arrest warrants against Vijayakanth and his wife on the pretext that neither they nor their counsel attended the proceedings. The bench also stayed the arrest warrants. ALARMING SITUATION In fact, a few days back while hearing anoth- er defamation case filed by Jayalalithaa against Vijayakanth, a bench headed by Justice Deepak Mishra was taken aback by the sheer number of such cases filed by the CM and her council of ministers against their political opponents. The situation is so alarming in Tamil Nadu that anyone criticizing Jayalalithaa or her ministers is in for trouble. At the Principal Sessions Judge’s (PSJ) Court in Chennai alone there are 162 defamation cases against politicians, media houses, journalists and even against a lady TV news reader. No one knows how many cases are pending in the districts as this figure is unavailable but conservative estimates say it could be not less than 200. The filing of defamation cases started as early as January 2012, just six months after Jayalalithaa came back to power for a third term. Defamation cases are pending against The Hindu, The Times of India, India Today, Rediff.com, The Economic Times, NDTV, CNN IBN, Times Now and scores of Tamil newspapers, magazines and television channels. One of the leading Tamil maga- zine groups—the Vikatan group of publica- tions which publishes the bi-weekly Junior Vikatan and weekly—Anandha Vikatan—is also facing 45 defamation cases. Another leading Tamil political biweekly, Nakkh- eeran, is facing 19 defamation cases. WATCH OUT Even for expressing one’s opinion, defama- tion cases are filed. In 2014, then Janata Party president, Dr Subramanian Swamy, had tweeted that it was not Jayalalithaa but he who was responsible for Tamil Nadu win- ning its rights in the Mullaperiyar issue in the Supreme Court. For this, Jayalalithaa filed a defamation case against him. Similarly, a leading Tamil daily Dinamalar carried an article which said that the Tamil Nadu government is considering privatizing bus transport in rural areas. A defamation case was filed. The Times of India carried a front page article about rampant corruption in Road Transport Offices in the state and titled it: “TN gives license to its drivers to kill”. A defamation case was filed against it. The importance attached by the Justices Rohington F Nariman and Deepak Mishra (above L and R) say that the penal provision of defamation should not be used to throttle dissent. 23INDIA LEGAL August 31, 2016
  • 24. tional validity of Section 499 and 500 on May 13, 2016, there were some sane voices which said that at least the Supreme Court should have done away with these provi- sions. A retired Madras High Court judge who did not want to be named said: “The Supreme Court could have read down Section 199 of the Code of Criminal Procedure that allows public prosecutors to step into the shoes of allegedly defamed public servants. In my view, this is patently unfair, unethical and against natural justice to allow the State to use its legal machinery to suppress criticism without the public ser- vants concerned being required to testify in court on the actual injury or loss of repu- tation suffered by them.” As of now, not a single defamation case filed by the government has seen the light of day, ie, reached the trial stage. “The main aim is to harass the journalist or the politi- cian. And this has its own chilling effect at least as far as media persons are concerned. Generally, no media outlet wants to fight lit- igations for long and in this age of costly legal affairs, protracted battles are unthink- able. So media houses want to avoid this nightmare and the government attains its desired results,” said MP Thirugyanam, a senior Tamil journalist. For politicians, the situation is worse. Vijayakanth, being the leader of the opposition in the assembly, had to visit dis- trict after district to attend defamation cases filed by Jayalalithaa for his public speeches. This forced him to repeatedly knock on the doors of the Supreme Court for relief and it was at one of these hearings on July “If only the media had taken up these cases seriously as an assault on the freedom of expression and shown some backbone, things would not have gone this far.” —GS Mani, a SC lawyer representing Vijayakanth (above) Jayalalithaa government to defamation cases can be gauged by the fact that it has appointed a special lawyer to oversee them. “If the special lawyer is satisfied that a par- ticular news item against the chief minister or a minister warrants a defamation case, then he will prepare the affidavit and the city public prosecutor will file the complaint in court. This has been the procedure for the past four-and-half years,” said a former gov- ernment lawyer. One advantage for the government is that as it is the complainant, it needn’t come to court either during the pres- entation of the case or in subsequent hearings. However, under normal cir- cumstances, if the complainant is a pri- vate citizen, he will have to come for all hearings. STATE MACHINERY In fact, when the Justice Deepak Mishra bench upheld the constitu- SUPREME COURT/TN/Defamation Cases TO TWEET OR NOT TO TWEET Dr Subramanian Swamy 24 August 31, 2016 UNI
  • 25. 28 that the Justice Deepak Mishra bench came down heavily on the Jayalalithaa government. N Ramesh, the advocate representing the Vikatan Group of Publications said: “Even after the Supreme Court’s July 28 anguish, yet another defamation case was filed against us in the first week of August. We were indulging in nothing but fair criticism and this is the duty of both the media and the opposition. It seems the Tamil Nadu government is not ready to mend its ways. Repeated filings of defamation cases are nothing but an attempt to gag the media.” Almost all the top politicians of the state —DMK president M Karunanidhi, his son, MK Stalin, Pattali Makkal Katchi leader Dr S Ramadoss, his son Anbumani Ramadoss, MP, DMDK president Vijayakanth and leaders of Left parties are all facing defama- tion cases by the government. TAME MEDIA Some of those connected with these cases blame the media in Tamil Nadu. “If only the media had taken up these cases seriously as an assault on the freedom of expression and shown some backbone, things would not have gone this far. There were absolutely no protests from the media when the govern- ment was day in and day out strangulating their voices,” said GS Mani, a Supreme Court lawyer representing Vijayakanth. In the previous DMK regime too, the government had filed defamation cases against the media and political opponents. “But there was a qualitative difference—it filed cases only if the criticism was com- pletely personal and below the belt. They definitely allowed some space,” said Aazhi S Senthilnathan, a writer and journalist. Defamation laws were the brain child of Lord Macaulay. He conceived this in 1837 and they were subsequently made law in 1860. While upholding the constitutional validity of Section 499 and 500 IPC, the Justice Deepak Mishra bench said: “These laws stood the test of time and hence there is no need to strike them down”. After this judgment, Dr Subramanian Swamy, one of the petitioners who challenged the constitu- tional validity of both these sections, said he would try to take this issue to a large consti- tutional bench. Meanwhile, for “Amma” and her minis- ters, it is business as usual. DMK chief M Karunanidhi and his son, MK Stalin (left), PMK leader Dr S Ramadoss and his son Anbumani Ramadoss (above) are all facing defamation cases. IL 25INDIA LEGAL August 31, 2016 UNI UNI
  • 26. SUPREME COURT/ Adulteration M ILK has always been synony- mous with health and bal- anced nutrition. Rewind to your childhood and images flash of being chided for not drinking the morning glass-full. And it’s not just children—both the young and the old consume milk since traditional wisdom has it that a glass a day not only keeps the doctor away but helps build stronger bones and keeps the body in ship shape. Unfortunately, the milk we imbibe today and persuade our children to religiously consume may actually be detrimental to health. Chances are that the wholesome product we think we are buying may be a toxic cocktail of urea, detergent powder, shampoo, white paint, refined oil and con- taminated water. Over 68 percent of milk in the country has been found to be adulterat- ed in a study conducted in 2011 by the Food TOXIC!The Supreme Court ruling last fortnight directing the Center and states to amend laws to ensure stringent punishment for those guilty of adulterating milk and other food produce is a welcome step By Ramesh Menon Ingredients Urea Detergent powder Shampoo White paint Refined oil Contaminated water Toned Milk 26 August 31, 2016 Rajender Kumar
  • 27. Safety and Standards Authority of India (FSSAI). It was found that adulteration was rampant in the country with the worst states being Bihar, Chhattisgarh, Odisha, West Bengal, Mizoram, Jharkhand and the Union territory of Daman and Diu. In some of these states, the adulteration was alarmingly found to be 100 percent in the samples tested! The National Survey on Milk Adulteration, 2011, found that eight percent of 1,791 samples were adulterated with detergents. Ditto six percent of the samples tested in 2015 by the Ministry of Health. Food and drug administration officials in Pune found that almost 90 percent of the milk samples tested in 2014-15 were adulterated. The Indian Council of Medical Research has pointed out that such adulteration could lead to the destruction of body tissue, cause impairments, heart problems, cancer and even death. It noted that while there would be no immediate effects, the long-term impact is cause for serious concern. Operation Flood, launched in 1970 and the white revolution that followed made India the world’s largest producer of milk. But this creditable achievement is now being undermined by rampant adulteration being practiced by unscrupulous suppliers. Even water taken from untreated sources, often used to dilute milk, contaminates and is considered injurious to health. But the use of chemicals like urea and detergents to cre- ate “synthetic” milk has taken adulteration to another hazardous level. More than two- thirds of the milk in India does not meet food safety standards. This is the reason why last fortnight the Supreme Court minced no words when it observed that it favored awarding life WHITHER FOOD SAFETY? Milk being mixed with harmful adulterants before being packaged for sale 27INDIA LEGAL August 31, 2016
  • 28. imprisonment to those guilty of adul- terating milk. The court was responding to a petition filed by a group of concerned citizens hailing from different states who pleaded for more stringent punish- ment for adulterating milk. At present the crime is only punish- able with a fine or a jail term of six months. Conviction is rare and so are the surprise checks to test the quality of milk. A bench compris- ing Chief Justice of India TS Thakur and Justices R Banumathi and UU Lalit expressed the view that adul- teration of milk could adversely affect the growth of future generations and the men- ace had to be urgently tackled. The bench called upon the governments both at the center and the state to amend lenient laws that are prevalent and follow the states of Uttar Pradesh, West Bengal and Odisha which have made a crime like adulteration of milk punishable with life imprisonment. It also wanted a complaint mechanism to be evolved which could be used to check corruption and the unethical practices followed by food authorities across the country. Advocate Anurag Tomar, who appeared for the petitioners, contended that milk con- taminated with synthetic material was being sold in various states, particularly in the north, posing a serious threat to the life and health of consumers. He pleaded that the Center should be directed to amend the pre- vailing Food Safety Act and make punish- ment very stringent. Tomar told India Legal: “It is now up to the Center to act on the suggestion of the Supreme Court. It is in public interest and is a very serious health issue affecting all of us. The directions of the Supreme Court are also very practical and will bring in efficiency in the detection of adulteration.” Uday Mawani, Chief Executive Officer of the Ahmedabad based Consumer Education and Research Centre (CERC) told India Legal that consumers often found that the POISONED DRINK? (Right) Milk being poured at a tea stall; (Below) Samples of milk at a lab in Delhi 28 August 31, 2016 Bhawna Gaur SUPREME COURT/ Adulteration
  • 29. IL FSSAI helpline never worked and the response to complaints of milk adulteration was poor and the redressal mechanism inef- fective. Moreover, as milk was transported over long distances without maintaining proper temperature, it gets infected with microbes rendering it unfit for consump- tion, he said. Soon after the directions from the Supreme Court, the Telangana government decided to make adulteration of milk a non-bailable offence with a maximum pun- ishment of a life term. It is now left to other states to follow suit and take up adulteration seriously as it is not just milk but other foods that are also being adulterated. Strict anti-adulteration laws can help fight the malaise which is playing havoc with public health. Look at how food items are rendered spurious before they reach the consumer. Tiny chalk crystals are mixed with sugar. White stone is powdered and added to salt. Brick powder mixes with red chilli powder. Sawdust and even powdered cow dung is mixed with coriander powder. Honey is adulterated with jaggery syrup. Sweets could have harmful coloring agents that are banned as they are carcinogenic. Adulteration has become big business. It remains to be seen if the Center actually acts on the suggestions of the Supreme Court. It is high time that laws are amended to discourage the practice of tampering with food products and punishing those guilty of being part of the vicious adulter- ation chain. A bench comprising Chief Justice of India TS Thakur and Justices R Banumathi and UU Lalit (L to R) felt that milk adulteration could adversely affect the growth of future generations and had to be tackled. Tamil Nadu Karnataka Kerala Madhya Pradesh Maharashtra Rajasthan Punjab Jammu & Kashmir Gujarat Mizoram Odisha Chattisgarh Bihar West Bengal Delhi & Haryana FSSAI Survey % ofsampleswithmilkadulteration 0 10 20 30 40 50 60 70 80 90 100 Andhra Pradesh 29INDIA LEGAL August 31, 2016
  • 30. SUPREME COURT The Supreme Court sought an explanation from three police officers in Dharbhanga, Bihar, for handcuffing a merchant navy captain in a dowry case. The apex court had prohibited hand- cuffing of accused persons as a rule in a 1980 verdict, noting that it be done only in special circumstances like violent behavior of the accused, or pos- sibility of him/her defying legal procedures. The concerned cops may be tried for contempt of court. They were asked to appear in court in case they did not file a response within 30 days. The Merchant Navy officer had approached the apex court, pleading for contempt action against the cops. He alleged that despite cooperating with the probe, the police had arrested and handcuffed him while he was appearing in the trial court for hearing. He also objected to being arrested without any prior notice and pleaded it was against Section 41 of CrPC. Pulled up for handcuffing The Supreme Court took a serious note of the abysmally poor rate of conviction (around 20 percent) in the 2008 Kandhamal riots case. The riots took place in western Odisha following the killing of a VHP member. More than 50 Christians were butchered in the may- hem, which also caused widespread damage. While pulling up the state government, the Court referred to its 1974 verdict, wherein it had stated that minorities were as impor- tant as the majority in India as envisaged by the consti- tution, and nothing should be done to make them feel neglected. The Court had further held that the minori- ties had every right to con- serve their religion, culture and language. The Court not only asked the Odisha govern- ment to re-visit all cases and do the needful so that the guilty do not go unpun- ished, but also give addi- tional compensation to the victims. The Supreme Court refused to take a fresh look at its 1996 verdict on the anti- defection law. According to the law, all MPs were bound by the party diktat even after they had been expelled. The matter came up after politicians Amar Singh and Jaya Prada sought clarity on whether lawmakers could be prosecuted under anti-defec- tion law after they did not follow the party whip after expulsion. The bench dealing with the matter observed that the queries were no longer rele- vant as both of them had completed their tenure as Rajya Sabha MPs. Both Singh and Jaya Prada had been expelled from Samajwadi Party in 2010. Expelled BJP MP P Mohapatra too had moved the apex court on the issue. The Supreme Court, in its Novem- ber 2010 order, had stated that Singh and Jaya Prada were not above the anti-defection law. Miffed over poor conviction rate No re-look at anti-defection law 30 August 31, 2016
  • 31. —Compiled by Prabir Biswas, Illustrations: UdayShankar In a major relief to BJP president Amit Shah, the Supreme Court ruled that there was no need to revisit the 2005 Sohrabuddin fake encounter case. It struck down the plea of social activist Harsh Mander, who had objected to Shah’s acquittal by the Mumbai Sessions Court in Decem- ber 2014. The apex court even questioned the locus standi of Mander in filing the plea, observing that he was in no way linked to the case. The Bombay High Court had approved the trial court’s decision and did not even take up Mander’s petition. Incidentally, Sohrabu- ddin’s brother too had taken back his plea against Shah’s acquittal in the Bombay High Court. Shah was finally declared not guilty by a CBI court in Mumbai after being charge- sheeted earlier. The apex court had asked the CBI court to adjudicate the case. The counsels for Mander said that “public must get the feeling that nobody is above the law”. Former chief ministers of Uttar Pradesh and their families can’t be allowed to stay indefinitely in official bungalows in Lucknow and the rules framed by the state gov- ernment in this regard were illegal, the Supreme Court observed. It struck down a 1997 rule of the state govern- ment earmarking bungalows for erstwhile chief ministers. The apex court gave two months’ time to all former chief ministers to vacate their bungalows and asked the state to slap appropriate market rent for illegal occupation. The Court gave its verdict on a plea from NGO Lok Prahari. The UP government contended that the judiciary had no business to intervene in decisions taken by the execu- tive. It also argued that there was no special treatment meted out to former CMs as observed by the judiciary, as these persons were anyway accorded privileged status and some were even enjoying Z- plus security and thus needed commensurate infrastructure. Refuting the argument, the apex court cited the Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act of 1981, which mandated that chief ministers must vacate their bungalows within 15 days of leaving office. It is all over in Sohrabuddin case No official housing for former CMs Acting on a PIL filed by a UP politician Ranvir Singh and look- ing into inputs from several central agencies, the Supreme Court asked the CBI to investigate money-laundering allegations against a BSP MLC in UP, Mohammad Iqbal, and submit its report within three months. The fact that Iqbal was embroiled in other criminal cases went against him. Iqbal has been accused of setting up fake companies for money laundering. Reports from Special Fraud Investigation Organisation (SFIO), Enforcement Directorate (ED) and Central Board of Direct Taxes (CBDT) submitted before the court pointed towards these frauds. All these agencies had done their home work on a com- plaint against Iqbal. The apex court also directed the CBI to go through all these reports before filing its assesment. CBIprobeagainstBSPMLC 31INDIA LEGAL August 31, 2016
  • 32. COURTS Madras High Court invokes loco parentis The Madras High Court took over the role of a parent (loco parentis in legal par- lance) of a mentally-retarded man who had lost his parents and had been abducted and married by his former wife for huge property bequeathed by his father. The man, Manoj Rajan, was born with speech and hearing problems. His mother died when he was a teenager. The only son of an industrialist, he got married to Priya Darshini in 2008. But his wife divorced him shortly afterwards, claiming that he was mentally unfit. Rajan was left with huge property upon his father’s death. The responsibility of look- ing after Manoj and his property was taken over by his friend Ananth. He arranged for Manoj’s stay at a home for the mentally- challenged in Gudalur, in Nilgiris, Tamil Nadu. Priya Darshini approached the Madras High Court, claiming that Manoj had been illegally detained in the home. But her claim was struck down by the High Court based on a police report. She later kidnapped him from the home and remarried him. But the Gudalur police did not take legal action against her despite a complaint filed by the home author- ities. Ananth then approached the High Court, which found Manoj and brought him back to the home. The Court also found out that huge property in the name of Manoj had been ille- gally sold by his wife. The Court asked CB-CID, Tamil Nadu Po- lice, to probe Manoj’s remarriage and proper- ty sale, lodged him in a Madurai home, and entrusted his safety to the Madurai police. Miffed over manual scavenging Aghast at the fact that more than 200 manual scavengers still existed in Delhi, the Delhi High Court took a serious note of the incorrect information pre- sented by civic agencies. They had claimed that there were no manual scav- engers in the capital. How- ever, a report from the Delhi State Legal Services Autho- rity filed before the Court stated that 233 people were on the rolls of civic agencies as manual scavengers. The court was also not happy with the civic agen- cies for allowing such a “disgraceful” practice to exist in today’s age. The Delhi High Court refused to entertain a clutch of peti- tions on striking down the ban on the BBC documentary, India’s Daughter, based on the Nirbhaya gangrape. The petitioners contended that the ban imposed by the trial court in March 2015 infringes upon the fundamental rights of the freedom of speech and expression. They also cha- llenged the center’s direction to TV channels asking them not to telecast the film. The Court ruled that it was up to the trial court to take a deci- sion as the issue was before it. It also observed that the trial court was capable of dealing with the case and there was no need to intrude using special powers (Article 226 and 227) as the matter was still being probed. As far as the center’s direc- tion was concerned, the Court felt it was only advisory in nature. Trial court to decide on Nirbhaya documentary 32 August 31, 2016
  • 33. The law finally caught up with Mahmood Farooqui, accused of raping an American research scholar at his home in New Delhi in 2015. A special Fast Track Court awarded him a seven-year jail term along with a fine of `50,000. The Court felt that the rape sur- vivor’s allegation, who had herself testified in Court, against the 38-year- old Peepli Live co- director was reli- able enough. It also asked the Delhi State legal Services Authority to compensate all expenses incurred by the rape survivor while fighting her case in India. The Special Court also took into acc- ount the state- ments given by one of Faroo- qui’s old friends, who was responsible for connecting Farooqui with the woman, and another childhood friend of the filmmaker. The Gujarat government’s notifi- cation to set aside 10 percent seats for the economically back- ward classes in the general catego- ry was struck down by the Gujarat High Court. The court ruled that it was “unconstitutional” and “illegal”. People from higher castes with an annual income of `6 lakh were placed in the economically weaker category by the state government. The Court observed that poor income was not an indi- cation of backwardness. It contended that the govern- ment’s decision violated the cap of 50 percent seats for reservations set by the Sup- reme Court. It struck down the contention of the state govern- ment that the quota was a classi- fication and not reservation and pulled it up for arriving at a decision without any empirical study. The Court’s judgment came after it heard petitions challenging the notification. The state govern- ment has moved the Supreme Cou- rt against the High Court verdict. Farooqui given seven-year term Quota for EWCs unconstitutional No murder in Jiah Khan case After getting a response from the CBI on the Jiah Khan suicide case, the Bombay High Court fixed the next hearing for August 23 and said that till then the interim stay on trial against Sooraj Pancholi will continue. The cen- tral investigating agency, in its submission, reiterated in the Court that murder was ruled out and it had no interest in shielding Pancholi, the accused. Jiah’s mother has approached the High Court pleading that Pancholi had murdered her daughter. Life term for Abu Jundal Sayed Zabiuddin Ansari alias Abu Jundal was sentenced to life by a MCOCA Court in Mumbai for their involvement in the 2006 Aurangabad arms haul case. Six others were also given life terms. They were held guilty under the Unlawful Activities Prevention Act and other sections. Jundal is also an accused in the 26/11 terror attacks. Need laws on cow slaughter The Himachal Pradesh High Court has asked the central government to come up with a law that bans cow slaughter in India. The Court also wanted the center to stop import and export of cow or calf, as well as ban the sale of beef and beef products, all within six months. It did not agree with the center’s con- tention that it was the state’s prerogative to decide on the issue. This is the second time that the High Court has issued the verdict. It did the same last October. — Compiled by Prabir Biswas; Illustrations: UdayShankar 33INDIA LEGAL August 31, 2016
  • 34. COURTS/ Subhas Chandra Bose Funds W HEN Subhas Chandra Bose took over the lead- ership of the Indian Independence League and the Indian National Army (INA) from an ageing Rash Behari Bose on May 11, 1943, after his radio broad- cast from Tokyo, he had the arduous task of rebuilding it into a hard-nosed battle regi- ment which it had ceased to be. The idea was to return the INA to its full potential with the help of Imperial Japan and, to an extent, Hitler’s Germany. The funds for this huge task mostly came from Japan which also provided the Andaman and Nicobar Islands as a base for the government-in- exile after Singapore was used as a base. Bose, though, had his feet on the ground and realized that to be able to carry out daily duties and to fund the huge expenses of a standing army he needed funds that were not tied to the imperial design. Bose, thus, sent out an appeal to Indians within the country and to all expatriates (especially in the Far East) to send in money and all that they can afford. The response was rousing and the money collected at the provincial Azad Hind Bank in Singapore is said to have amounted to `114 crore and gold orna- ments, 11.3 kg (some estimates put it at a WhereisNetaji’s“Treasure”?On July 29, a PIL was filed in Calcutta High Court asking for an inquiry commission to look into the disappearance of gold and jewelry of the INA. Could this stir another Hornet’s Nest? By Sujit Bhar 34 August 31, 2016 UNI
  • 35. staggering 900kg). They were said to be dis- tributed among banks in Bangkok, Burma, Malaya and other places in Southeast Asia. AZAD HIND BANK Post the historic Imphal victory, the British came back with a vengeance and the INA was defeated. That, and the huge setbacks that Japan was suffering in war, prompted the Japanese to start diverting funds to the front tackling American advances. Bose escaped, carrying a part of the “treasure” in suitcases, while part of it lay in Azad Hind Bank in Singapore’s accounts. Bose’s where- abouts have remained disputed till date. The large amount of money reported to be in the said banks too remained disputed. On July 29, a PIL was filed in Calcutta High Court seeking an order directing the center to constitute an inquiry commission and submit a report on the whereabouts of the INA “treasure” “received by the government after transfer of power and submit a report to the court”. The “treasure” obviously refers to the monies and the gold, reportedly at the banks and the “received” tag emanates from a ref- erence to an alleged letter written by the then governor of Singapore on May 6, 1950, to the secretary of state for the colonies in London. In the letter, the governor had alle- gedly communicated that the gold received from INA funds at Singapore after the end of World War-II weighed approximately 5,634 gms and that it was deposited in the Indian Overseas Bank. And the clincher in the PIL is that the gold was deposited here in the name of Jawaharlal Nehru! The fact that such allegations have been made without substantial documentary evi- dence shows that there seems to have been no paper trail vis-à-vis the said money. Admitting the PIL, the Calcutta High Court division bench of Chief Justice Manjula Chellur and Justice Arijit Banerjee directed the center to file an affidavit within four weeks. The matter has been fixed for final hearing after eight weeks. EXTENSIVE EMBEZZLEMENT? After submitting the petition on behalf of activist Surojit Dasgupta, advocate Rudra- jyoti Bhattacharya alleged that there has been extensive embezzlement of INA “funds” at various stages. According to the petitioners, “for continuance of provincial government of Azad Hind in exile and fund- ing India's freedom struggle, Netaji had appealed to people of Indian origin to con- tribute so as to materialize the aim and objective of the Indian National Army”. They further said the donations, which “in accumulation, amounted to several hundred crores (of Rupees) in cash, gold and jew- ellery”, were deposited in the said banks. One of the foundations of this PIL seems to be a top secret letter dated October 20, 1951, signed by KK Chettur, a member of the Indian liaison mission in Tokyo, and addressed to S Dutt, secretary, Common- wealth Relations. The letter allegedly states that Bose’s call for financial help from the people of India and expatriates resulted in donations pouring in, and that as of January 26, 1945, donations in cash, gold (11kg IN COMMAND (Facing page) A portrait of Netaji at an exhibition (Above) Subhas Chandra Bose supervising his army (Below) Indian National Army’s women’s wing 35INDIA LEGAL August 31, 2016
  • 36. 300 gm) and other valuables received by the Azad Hind government in exile were equal to his (Netaji’s) weight. The PIL does not say so, but some reports have talked about a “war chest” of 100 kg of gold and jewelry. It wasn’t just the gold that has been miss- ing, says the petition. The petitioners quote one PK Banerjee of the Indian Embassy in Japan who had written another top secret letter dated March 7, 1961, to the then joint secretary, Ministry of external affairs in Delhi. In it, Banerjee had allegedly des- cribed that he had seen in the INA “trea- sure” a priceless emerald Buddha statuette of an amazing 17,880 carats. The value of that has not been ascertained. The PIL says that there are no less than 37 IB and Ministry of External Affairs files which have references to the INA treasure, but most of them are still classified. According to the petition, there is anoth- er file, this one with the PMO—the petition- ers claim that the file No. is 2(67)/56- 71PM—which “refers to a trust formed under the supervision of the Working Committee of the Indian National Congress set up to handle a sum of `2 lakh of the INA fund. Nehru and Bidhan Chandra Roy (erst- while Congress leader and former chief min- ister of West Bengal) were among the signa- tories of the trust deed”. The value of the “treasure” apart, the PIL stresses on the embezzlement issue. This has been done for so long by so many that the money has virtually been lost. That there was a large amount of money and gold in the banks is incontrovertible. BOSE WEIGHED Kolkata-based Aruna Chatterjee, a member of INA's Jhansi Brigade (the women’s wing) has been reported in the media as recalling one incident in Rangoon (now Yangon) where Subhas Bose was actually weighed against the gold ornaments. Not that he liked the idea of being weighed against gold (some reports say he was totally against this), but he probably gave in to public pres- sure. “Where has this huge wealth gone?” Chatterjee has asked. “I understand that the INA used some of this during the War. But then, a portion of it was transferred to India. The country wants to know who is the cus- todian of this wealth? The government needs to come clear.” Whatever be the fate of the PIL, it is clear that there needs to be some clarity on the issue with Bose being the huge public figure that he was. A public outcry had resulted in the NDA government, especially its leader Narendra Modi, promising a declassifica- tion of related files for the public. But when they were declassified, the only controversial fact that came out was that the Congress had tailed Bose’s family for a decade after Independence. While this put the Congress in a poor light, the rest of the revelations were so mundane that one wondered why they were classified as “Secret” at all. Netaji researcher R Moitra told India Legal: “Basically, we Indians have been taken on a wild-goose chase for a long, long time. For example, I am sure there is no con- nection between Netaji’s death/disappear- ance with Renkoji temple in Japan where the freedom fighter’s ashes were allegedly kept after recovery from a plane crash. It is complete hogwash, and politicians and oth- ers have taken the opportunity to make gov- ernment-funded Japan visits allegedly to pay homage at the temple, while the real story lies hidden in those top secret files. This PIL would face a rebuff from the gov- ernment. Slowly, this too, will gather dust till another one comes along.” ONE MORE GIFT Family members of Subhas Chandra Bose presenting his portrait IL Bose’s call for help from the people of India and expatriates resulted in donations pouring in, and as of January 26, 1945, donations in cash, gold (11kg 300 gm) and other valuables received by the Azad Hind government in exile were equal to his (Netaji’s) weight. 36 August 31, 2016 UNI COURTS/ Subhas Chandra Bose Funds
  • 37. INDIA LEGAL August 31, 2016 37 Third party insurance premium to go up In a move to provide quick relief to the families of those killed or grievously injured in road mishaps, the transport ministry may increase third party insur- ance premium for motor vehicles by 10 to 15 percent after amendments to the Motor Vehicles Act are passed. The rea- son cited for this increase is the substan- tial raise in compensation proposed in the amendments for accident victims. The compensation will be increased to `2 lakh from `25,000 in the case of death in hit-and-run cases while in cases involving grievous injuries, it would go up to `5 lakh. The compensa- tion will have to be paid within 30 days by insurance companies as per the pro- posed amendments. Also, penalty for driving a vehicle without insurance would be doubled. A merger after 94 years? The Rail Budget may be merged with the General budget after 92 years. The Finance Ministry is exam- ining the Railway ministry’s proposal of merging the two. If if happens, the burden on the railway ministry will be shifted to the finance ministry since the former is facing a severe revenue deficit at present, reports The Times of India. On account of the Seventh Pay Commission rec- ommendations, Railways is facing an additional burden of `30,000 crore. The Railways will also be rid of the annual dividend currently paid for gross budgetary sup- port from the government if the merger takes place. — Compiled by Karan Kaushik Helmets must for kids above 4 years Katju faults Lodha committee Former Supreme Court judge, Markandey Katju, has dubbed the Justice RM Lodha Committee, appointed for probing BCCI irreg- ularities, as “unconstitutional and illegal”. Katju has been appointed by the BCCI to advice on the SC verdict on implementation of the Justice Lodha committee recom- mendations. He advised the Board to file a review petition before a larger bench of the apex court and not to meet the Committee as scheduled on August 9 terming the panel as "null and void”. Meanwhile, the BCCI has been asked to implement the Lodha Committee recommendations by October 15 and the cricket body, in turn, will submit its “first progress report” to the panel by August 25. 22 lakh cases stuck for over 10 years As per latest statistics released by the  Supreme Court, by May 31, courts across the country had a pen- dency of 2.18 crore cases of which 27 percent or 59.3 lakh cases have been  pending  for over five years, reports The Times of India. Of the 59.3 lakh cases pending for more than five years, as many as 22.3 lakh cases have been on board of courts for more than 10 years, the eCommittee statis- tics revealed. The eCommittee conceded that the national average of dis- posing of very old cases has come down. The National Judicial Data Grid statistics revealed that at the end of April 30, there were 27.4 lakh undated cases pending in various courts and it increased to 28.8 lakh cases by May 31. The government has introduced amendments to the Motor Vehicles Act in the Lok Sabha, including a proposal to make hel- mets mandatory for children aged above four years while travelling on two-wheelers. Sikhs wearing turbans will be exempt from this rule. The amendments also seek to make it mandatory for car passen- gers aged below 14 years to be secured with a safety belt or a restraint system. Violation would attract a fine of `1,000. The bill specifies that the rider has to “securely fasten” the headgear. NATIONAL BRIEFS
  • 38. FOCUS/ Child Labor Law FailingourChildren 38 August 31, 2016
  • 39. O N paper, the amendments to the Child Labour (Pro- hibition and Regulation) Act 1986 passed by the Rajya Sabha on July 19 and cleared a week later by the Lok Sabha look pro- gressive. It bans employing children under 14 years and prohibits adolescents between 14-18 years from working in notified haz- ardous industries. Further, the new law stipulates harsher punishments for employing children in violation of the Act with a fine between `20,000-`50,000 plus a six-month jail term for first time offenders and a one- to three-year jail term for those who repeat the offence. If the amended act is a step forward, as projected by the government, why are child- rights activists almost unanimous in their criticism? It seems the devil is in the details of the amended law. For example, the ban on employing children below 14 years comes Amendments to the Child Labour (Prohibition and Regulation) Act 1986 proscribe employing children below the age of 14. But exemptions in the new law render it open to gross misuse By Ajith Pillai WHEN HOME IS NOT A HAVEN Children working in family based enterprises. Learning the ropes or losing innocence? 39INDIA LEGAL August 31, 2016 UNI UNI
  • 40. with terms and conditions that make it willy-nilly legal to employ them after school hours and vacations in family businesses and enterprises. Similarly, the number of hazardous industries where adolescents and children cannot be employed has been cut from 83 under the old law to just three in the amended Act, further opening the doors to employing those below 18. Seen from this perspective, the new law has several provisos which are regressive. As former bureaucrat and rights activists Harsh Mander put it across in a signed col- umn: “…on closer scrutiny, we discover the same pattern as many other pronounce- ments of this government vis-a-vis the poor: The reality of what is being offered is the reverse of what appears on paper.” For example, he notes that under the amended law, hazardous industries have been nar- rowed down to those which are categorized as such for adult workers “without recogniz- ing the specific vulnerabilities of children”. What are the apprehensions and reserva- tions about the new law from field workers who interact with children on the ground? Chetna (Childhood Enhancement through Training and Action) is a Delhi-based NGO which has been working for child empower- ment for the last 14 years. It believes that the FOCUS/ Child Labor Law WHERE DID PLAYTIME GO? Children may work after school hours. But who will ensure that they actually go to school? 40 August 31, 2016 UNI
  • 41. Chetna is not alone in expressing its con- cern. Child Rights and You (CRY) has also put on record its reservations. The organiza- tion’s CEO, Puja Marwaha, has articulated this position in the media: “Allowing chil- dren to work in family enterprises is likely to have far-reaching implications for their edu- cation and learning outcomes, as well as their health and overall development. These children face issues of inattentiveness, fati- gue and lesser attendance at school and lack of playtime with peers in and after school. Are they even left with an option to let go of their economic roles, so essential to their family’s survival? Working children remain at great risk of dropping out of school.” According to her, the amended law which is “based on the premise that education and work for children can go hand in hand” goes against the spirit of the Right to Free and Compulsory Education Act (RTE) 2009. Marwaha also sees little merit in the government justification for exempting family businesses from the ban because, as labor minister Bandaru Dattatreya inform- ed the Rajya Sabha, in a family-run enter- prise, the employer-employee relationship is not typically what one normally sees and is better bonded. CRY’s studies have revealed that children working in the unorganized sector like new law will only serve to endorse child labor and does not address the core issues of children who are exploited from the age of five or six. Sanjay Gupta, director of Chetna spelt out the core apprehensions to India Legal: “By allowing children below 14 to work in a family business or enterprise, the law has opened the doors to exploitation. What does family business mean? It includes establish- ments and services run by the parents and siblings as well as the extended family of the mother and father of the child. This is very vague as most exploited children are tutored to say that they work for some chacha (uncle) or the other when complaints are registered with the police. Under the new law, such work is permissible and in any case, we don’t have a system by which the police will go out of its way to verify if the DNA of the child and his employer match. Most police stations, we fear, will not enter- tain complaints of child exploitation once the child says he works with the consent of his parents for a relative.” But will the new law which bans children from working during school hours encour- age parents to send their children to school? It may not, fear child rights activists. Notes Gupta: “As many of us see it, many of the children will register with schools but may not actually attend classes. The fact that a child is registered with a school will serve literally as a certificate to work. The police will henceforth not entertain complaints of exploitation by an employer if a child is reg- istered with a school and is working in a family enterprise which could be almost anything provided it’s not hazardous. In the months to come, you will see a dramatic increase in the number of children under 14 joining schools but whether they attend classes is another question.” As things stand, several government-run schools across the country face the threat of closure because of lack of students. In fact, schools are known to approach child rights groups to help them in getting students enrolled at least for the record. The amend- ed Child Labour Act will help shore up gov- ernment statistics vis-à-vis number of stu- dents admitted to a school. “This bill uses Indian family values to justify economic exploitation of children. It is misleading the society by blurring the lines between learning in a family and working in a family enterprise ...Children have been failed again.” —Kailash Satyarthi, Nobel laureate 41INDIA LEGAL August 31, 2016