The lack of laws to control the civilian use of drones in India could cause a major security hazard in the light of the Pathankot attack...and much more

1. NDIA EGALL
January 31, 2016 `100
www.indialegalonline.com
I
10
ThelackoflawstocontrolthecivilianuseofdronesinIndia
couldcauseamajorsecurityhazardinthelightofthe
Pathankotattack,warnsShobhaJohn
Drone-gerous!
Topdecisionsofthe
SupremeCourtin2015
NEETA
KOLHATKAR
Maharashtra’s
loss of face in
Lakhan Bhaiya
encounter
case 14
BOOK
EXTRACT
Does India
need the
presidential
system?
52
SAJEDA
MOMIN
Should rape
laws be
changed as
per role
of guilty? 42
AJITH
PILLAI
Has the
Lodha panel
put BCCI
on the back
foot? 30
FormerChiefJusticeof
IndiaHLDattu
ChiefJusticeofIndia
TSThakur
ll l li
a
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24

3. were perhaps the most chilling words uttered by
any Framer. He said, ‘A republic, Madam, if you can
keep it,’” recounts Turley.
Franklin’s words were more than a boast, Turley
reminds us. “They were a warning. The curious
thing about a democratic system is that it contains
the seeds of its own demise. Freedom is not some-
thing guaranteed by any parchment or promise. It
is earned by each generation which must jealously
protect it from threats, not only from outside, but
from within a nation.”
Some 226 years after those fateful words were
uttered, observes Turley, the true import of
Franklin’s warning has become all too real for
Americans. “The last 10 years has seen the rise of a
security state of unprecedented size and the dimin-
ishment of privacy and core protections for citizens.
Recently, a federal judge ruled that the massive
NSA surveillance program was unconstitutional.
US District Court Judge Richard Leon not only
said that the collection of ‘metadata’ constitutes an
unreasonable search or seizure, but that the
Framers like Franklin would be ‘aghast’ at the very
thought of it,” says Turley.
A
s France’s Hollande prepares to visit India,
we should introspect on our nationhood—
not just internal and external security
which are givens but on what makes us even more
powerful as a people—our ability to safeguard
our freedoms, our rights, our liberties and our dig-
nity. These precepts are embodied in our constitu-
tion. But do we honor, obey and practice them?
Have Indians “kept” the republic bestowed on
us by Nehru, Patel and Ambedkar? Is the adminis-
trative and political system that was shaped by
and evolved from the Indian constitution so
NDIA’S Republic Day is commemorated each
year with pomp and circumstance and is asso-
ciated increasingly with a jingoistic display of
military muscle in order to impress the poten-
tates—last year the President and First Lady of
the US and this year France’s Francois Hollande—
of the striking power of the world’s most populous
democracy. Last year symbolized the growing bilat-
eral ties between India and Uncle Sam, the world’s
largest democracies. This year’s exercise, perhaps,
is to demonstrate India’s solid support for Europe,
especially France, following the Islamic State’s ter-
ror activities and the Paris mayhem.
All well and good. But the gaping hole in cele-
brating the occasion seems to widen with each suc-
cessive year. This is the nation’s failure as a whole to
introspect on where it is headed. Have we failed our
democracy or has democracy failed us? Does the
nation’s political system build the character of its
people or does the national character build the
political system?
One of America’s greatest intellectuals and a
founding father of that nation’s constitution,
Benjamin Franklin, tried to answer this question in
the summer of 1787. As Jonathan Turley, professor
of law at The George Washington University Law
School, recaptures the event, a crowd had gathered
around Independence Hall in Philadelphia then to
learn what type of government their representa-
tives had formed for the new nation. When
Benjamin Franklin walked out of the Consti-
tutional Convention, a lady who called herself Mrs
Powel could wait no longer. “Franklin was one of
the best known of the Framers working on the new
US Constitution. Powel ran up to Franklin and
asked, ‘Well, Doctor, what have we got, a republic or
a monarchy?’ Franklin turned to her and said what
I
OUR REPUBLIC:
HAVE WE KEPT IT?
INDERJIT BADHWAR
LETTER FROM THE EDITOR
INDIA LEGAL January 31, 2016 3

4. stitution was adopted only recently, in 1999”.
Why then are the Indian constitution and sys-
tem of governance considered holy cows? Amend-
ments are welcome because they often are conven-
ient to political parties. But talk about an entirely
new system and you’ll see that the ox of the entire
political ruling class is gored. The system protects
them and they protect the system. One good reason
for not touching the current constitution and sys-
tem is that it embodies fundamental rights, free-
doms and the Rule of Law.
Nothing could be truer. No true Republican or
Democrat would want these touched. Those seek-
ing change argue that change is needed for the very
reason that a growing illiberal state operating with-
in a culture of impunity is playing fast and loose
with these lofty principles. Notwithstanding party
discipline, Nehru had actually supported the idea
of independent legislators who were free to express
themselves and haul up ministers and ministries
for misconduct, malfeasance and misfeasance.
We need not report here the frauds perpetrated
on our Republic by the abuse of the democratic sys-
tem itself—scams, bureaucratic skullduggery, judi-
cial improprieties, the abuse of the prison system,
the criminal-police-politician-business nexus. They
thrive in an Indian system which is for all purposes
today an executive dictatorship which thrives and
rests on an assertion of Executive Privilege (a
Royalist concept) that combined the obeisance of
an oligarchic sub-structure.
What many reformers seek, therefore, is a
systemic change which will promote rather than
dilute the cause of individual freedoms and collec-
tive progress.
A
ctually, not too many years ago, even with-
out the promulgation of a new constitution,
we came within inches of losing whatever
freedoms and fundamental rights we now enjoy.
And this Republic Day, many of us should pay hom-
age to Supreme Court judges who ruled so wisely in
the case that saved Indian democracy. As Senior
Advocate Arvind P Datar wrote in The Hindu sev-
eral years ago: “Exactly forty years ago, on April 24,
1973, Chief Justice Sikri and 12 judges of the
Supreme Court assembled to deliver the most
important judgment in its history. The case of
Kesavananda Bharati v State of Kerala had been
heard for 68 days, the arguments commencing on
October 31, 1972, and ending on March 23, 1973.
The hard work and scholarship that had gone into
sacrosanct that it cannot be tweaked or altered if,
unforeseen by the Founding Fathers, it has pro-
duced perverse consequences? Would the Foun-
ding Fathers, were they alive today, have perhaps
opted for some other system of governance in
which basic rights and good governance are better
preserved and more zealously safeguarded?
T
he French, after all, gave the world the slo-
gan of “Liberty, Equality, Fraternity”. But
even that nation is now on its fifth republi-
can constitution. As an excerpt from Bhanu
Dhamija’s new book, Why India Needs The
Presidential System, in this issue of India Legal
points out: “They adopted their current hybrid sys-
tem in 1958 because, as (political scientist) Beyme
says, ‘De Gaulle was realistic enough to see that in
the current system he would have a considerably
stronger position than he would have had in the
presidential system.” The German constitution is
only about 60 years old “and the nation is nowhere
as large or diverse as India. The current Swiss con-
MOMENT OF
PRIDE
US President Barack
Obama’s presence
at the 2015 Republic
Day celebrations
was trumpeted as a
big achievement by
the government
LETTER FROM THE EDITOR
Nehru supported the idea of
independent legislators who could
haul up ministers for misconduct,
malfeasance and misfeasance.
4 January 31, 2016

5. ensuring that we use these freedoms to progress
into a more liberal and fairer state? Perhaps not.
Dhamija’s book posits that the concentration of
powers in a select few is what is wrong at the core
level, making the present parliamentary system
non-participatory and virtually designed by oli-
garchs for oligarchs. He says: “The Indian system
has failed because efficiency without effectiveness is
no virtue, and responsibility without oversight is
not possible. Without a genuine separation of insti-
tutions and powers it is impossible to achieve these
qualities in governance.”
He makes a book-long argument for a presiden-
tial system of government to replace the current
dispensation. Whether that is an alternative is
another matter. What is important, though, is that
on Republic Day, instead of only watching a parade
of armor, all concerned Indians should cogitate on
a seminal matter: how to make governance more
accountable and ensure better safeguards to pre-
vent the system from succumbing to any further
oligarchic control.
the preparation of this case was breathtaking.
Literally hundreds of cases had been cited and the
then Attorney-General had made a comparative
chart analysing the provisions of the Constitutions
of 71 different countries!
“All this effort was to answer just one main
question: was the power of Parliament to amend
the Constitution unlimited? In other words, could
Parliament alter, amend, abrogate any part of the
Constitution even to the extent of taking away all
fundamental rights?
“Article 368, on a plain reading, did not contain
any limitation on the power of Parliament to
amend any part of the Constitution. There was
nothing that prevented Parliament from taking
away a citizen’s right to freedom of speech or his
religious freedom. But the repeated amendments
made to the Constitution raised a doubt: was there
any inherent or implied limitation on the amend-
ing power of Parliament?
“The 703-page judgment revealed a sharply
divided court and, by a wafer-thin majority of 7:6,
it was held that Parliament could amend any part
of the Constitution so long as it did not alter or
amend ‘the basic structure or essential features of
the Constitution.’ This was the inherent and
implied limitation on the amending power of
Parliament. This basic structure doctrine, as future
events showed, saved Indian democracy and
Kesavananda Bharati will always occupy a hal-
lowed place in our constitutional history.”
Has India ever repaid its debt to these judges by
“The curious thing about a democratic
system is that it contains the seeds of
its own demise.”
—Jonathan Turley, professor of law, The George
Washington University Law School
IN SOLIDARITY
This year’s Republic
Day chief guest
French President
Francois Hollande,
during a memorial
service in Paris
editor@indialegalonline.com
INDIA LEGAL January 31, 2016 5

6. JANUARY31,2016
The Year Gone By...
India Legal looks back at major judgements passed by the apex court in
2015. SHAILENDRA SINGH, PRABIR BISWAS, SANDEEP SHARMA
Order Expunged
Gujarat High Court judge JB Pardiwala’s views on reservation nearly led
to his impeachment before the paragraph was deleted. KAUSHIK JOSHI
18
Drone Attack!
While the market for
drones will grow to
$93 billion in the next
decade, the industry in
India has no regulations,
leading to fears that
they could be used
by terrorists.
SHOBHA JOHN
24
Lawkeepers as Lawbreakers
The apex court gave no reprieve to 11 cops convicted in the Lakhan Bhaiya fake
encounter case even though the Maharashtra government did its best to protect
them. NEETA KOLHATKAR
14
LEAD
10SUPREME COURT
COURTS
Fast-Forward Divorce
A recent Gujarat High Court ruling waiving the six-month separation period for
grant of divorce spells hope for couples in discord. RK MISRA
22
VOLUME. IX ISSUE. 10
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Editor
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Managing Editor
Ramesh Menon
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Shobha John
Executive Editor
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Associate Editors
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Art Director
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Graphic Designers
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Anubhav Tyagi
6 January 31, 2016

7. While the Justice Lodha Committee’s reforms are meant to
radically transform cricket governance, will the BCCI find ways to
circumvent them, asks AJITH PILLAI
Rubbish to Riches
30
REGULARS
Cover Design: ANTHONY LAWRENCE
INVESTIGATION
SPORTS
Edit............................................................................... 3
Quote-Unquote............................................................ 8
Ringside..................................................................... 9
Supreme Court........................................................... 16
Courts......................................................................... 21
National Briefs.......................................................39, 75
Inside the Courtroom.................................................. 41
International Briefs...................................................... 76
Campus Update......................................................... 78
Figure It Out............................................................... 80
Wordly Wise................................................................ 81
People......................................................................... 82
CRIME
The Park Street case public prosecutor
sought a lesser sentence for the three
convicts who were not directly involved
in the offense. It has reopened dialogue
on rape laws. SAJEDA MOMIN
BCCI on the
Back Foot
Power to the People
BOOK EXTRACT
Staff crunch in the CBI has ensured that the probe into
MP’s massive job-cum-admission scam proceeds at a
snail’s pace. RAKESH DIXIT
34
Would India have been better off adopting the
presidential system of government? BHANU DHAMIJA’s
thought-provoking treatise asks this seminal question
A Climate Less Congenial
ENVIRONMENT
To fulfil its pledges at the Paris summit, India must cross a
$2.5 trillion funds hurdle. However, little can be expected in
terms of foreign aid. SWATI PRASAD
A blueprint to take care of our humongous solid waste
burden and recycle it is on the cards. PRAKASH BHANDARI
52
58
WILDLIFE LAWS
A top court order asking
states to ensure better
treatment of captive
elephants augurs well for
their dwindling population.
RAMESH MENON
All That Bull
LEGAL EYE
The stay by the Supreme Court in the center’s notification lifting the ban
on Jallikattu has given a breather to bulls. But for how long, given that it
is an emotive and political issue in Tamil Nadu? MEHA MATHUR
72
Vyapam: A Dead End?
INTERVIEW
Laws are for everyone, yet it is the poor who are punished
for breaking them, says Olga Tellis, whose PIL in 1981 led to
a verdict in favour of slum dwellers. NEETA KOLHATKAR
36Being a Change-Maker
62
FollowusonFacebook.com/IndiaLegalMagazine
andTwitter.com/IndiaLegalMag
Justice for Suzette 42
46With zero pharmaceuticals background, Chris Harris sold
illegally imported execution drugs to the US while based out
of India. CHRIS MCDANIEL, TASNEEM NASHRULLA
Catch Me If You Can
66Tuskers’ Trials
INDIA LEGAL January 31, 2016 7

8. QUOTE-UNQUOTE
“Attempts to separate myth from fact,
history from mythology, belief from
scientifically verified facts are often frowned
upon. Pursuant to it, occult is dubbed
scientific and superstition as ‘culture’.”
—Vice-President Hamid Ansari lamenting that
criticism and questioning is not accepted in India, at a
Rajya Sabha TV event in New Delhi
“Compared to the Congress,
we have a smaller talent
pool and less exposure, but
it's only a matter of time that
we expand our base.”
— BJP Vice-President Vinay
Sahasrabuddhe, to Reuters
“Obviously the morale is
high but Martina and I have
played long enough to
understand that past
results, reputations and
seedings do not count.
Once you are out there on
the court, one has to
perform at a high level on
a daily basis to deliver.”
—Tennis player Sania Mirza, on
her leading doubles ranking for the
40th week with Martina Hingis, in
Mail Today
“It's the prerogative of the
government to decide
whether it needs a brand
ambassador, and if so,
who that ambassador
should be.”
— Aamir Khan on the
center’s decision to discontinue
with him as Incredible India's
brand ambassador, in
The Times Of India
“Asha Parekh had
come to me seeking
recommendation for the
prestigious Padma
Bhushan award,
saying that she was
entitled to it.”
— Union minister
Nitin Gadkari, at a
function in
Nagpur
“If the Indian Constitution allows the
hanging and shooting of the accused
(perpetrators of crime against women),
Delhi Police with full authority will do it on
the spot… Mein jab pange leta hoon toh
bahut khatarnak tarike se leta hoon (I am
dangerous when I get after someone).”
— Delhi Police Commissioner BS Bassi at the Delhi
Police’s Annual Press Conference
“It just goes to show that if there is
leadership, engagement and a good
system, people will be disciplined and
take the country to great heights. That
is my biggest learning
from the odd-even
experiment.”
—Delhi CM Arvind
Kejriwal at the
Bengal Global Investment
Summit in Kolkata
8 January 31, 2016

9. Justice is a temporary thing that must at last come to an
end; but the conscience is eternal and will never die.
— Martin Luther
VERDICT
Aruna
INDIA LEGAL January 31, 2016 9

10. The Supreme Court was kept busy in the year gone by, adjudicating in a slew
of cases relating to women’s rights, reservation policy, corruption, electoral
reforms and freedoms guaranteed under the constitution. Some of the
verdicts sparked debate and courted controversy—like the court refraining
from extending the jail terms for the guilty in the Uphaar fire case, rejecting
the mercy plea of Yakub Memon sentenced to death in the1993 Bombay
blasts case and declaring as unconstitutional an amendment to validate the
National Judicial Appointments Commission Act which would have impacted
appointments in the higher judiciary.
Here are some of the judgments which made news, in a nutshell:
TheWheels
ofJustice
Thumbs down to NJAC
Supreme Court Advocates-On-Record Association and ANR
vs Union of India
Judgment: 16.10.2015
Even though, the National Judicial Appointments
Commission Bill (NJAC) was passed by parliament and
ratified by 20 states, the
Supreme Court struck it down.
A constitution bench declared
both NJAC and the 99th
Constitution Amendment as
“unconstitutional and void” and
brought back the much criti-
cized Collegium system. The
need to clean up the appoint-
ment process of judges to the
high judiciary was the basis for
the proposed NJAC.
Death for Yakub Memon
Yakub Abdul Razak Memon ...Petitioner vs State
of Maharashtra and Anr
Judgment: 30.07.2015
Despite last-ditch attempts from law-yers of
Yakub Memon (the 1993 Mum-bai serial
blasts convict) as well as human rights
activists to save him from the
gallows, the apex court ruled
that he had to be hanged to
death. The Court even sat for an
unprecedented pre-dawn hear-
ing to hear the defense for the
last time before affirming that the
sentence was inevitable. The only
condemned prisoner in the case
was hanged amid criticism from
sections of society.
SUPREME COURT/ Verdicts 2015
10 January 31, 2016

11. Upholding Freedom of Speech
Shreya Singhal vs Union of India
Judgment: 24.03.2015
Keeping in mind the concern of netizens, the apex court struck down Section 66A of the
IT Act, describing it as “draconian”. It ruled that the Section was an infringement of the
right of free speech and expression guaranteed by the constitution. The Court further held
that it upset the balance between the right of net users and the reasonable restrictions that
could curb it.
No compromise in rape cases
State of MP vs Madanlal
Judgment: 01.07.2015
Slamming the verdicts of high courts that suggested mediation or compro-
mise between the victim and the accused in rape or attempt to rape cases,
the apex court held that the move was unthinkable. The Court observed that
such a practice would go against the dignity of women and does not deserve
legal sanction.
INDIA LEGAL January 31, 2016 11

12. SUPREME COURT/ Verdicts 2015
Rights of unwed mothers
ABC vs State (NCT Of Delhi)
Judgment: 06.07. 2015
In a landmark judgment, the apex court made it clear that
an unwed mother can become the sole
guardian of her child. The Court
ruled that revealing the
father’s identity or seek-
ing his consent was not
mandatory in the process
of attaining guardianship.
It also ruled that the con-
cerned authorities must
issue birth certificates to
children of unwed or single
parents after an affidavit of
guardianship had been provided.
Panchayat polls and minimum qualifications
Rajbala & ors vs State of Haryana & Ors
Judgment: 10.12.2015
The Haryana government’s decision to fix educational
qualifications for contesting pan-
chayat polls was upheld by the
apex court. While upholding
the validity of the Haryana Pan-
chayati Raj (Amendment) Act,
2015, the Court observed that edu-
cation alone empowers a person to
differentiate between “right and wrong”,
“good and bad”.
Fine can substitute jail
Sushil Ansal vs State Through CBI
Judgment: 22.09.2015
Citing advanced age as a reason, the apex
court refrained from sending Gopal
Ansal (75 years) and Sushil
Ansal (67 years) to jail in
the 1997 Uphaar hall
fire case. But the
condition was that
they pay a fine of `30
crore each within three
months. However, it
held them guilty of
criminal negligence that
resulted in the death of
59 people.
Compensation for acid attack victims
ParivartanKendravsUnionofIndiaandOthers
Judgment: 07.12.2015
Unhappy with the apathy shown by states towards acid attack victims and allowing these
attacks to occur despite guidelines delineated by it, the Supreme Court increased the com-
pensation amount to be paid. While asking states and UTs to be more attentive towards the
plight of these victims, the Court in its December 2015 verdict also directed that they be
included in the disabled category for getting social welfare benefits under The Persons with
Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
RBI not immune to RTI
Reserve Bank of India vs Jayantilal N Mistry
Judgment: 16.12.2015
The apex court ruled that the RBI was
not immune to disclosing any infor-
mation related to public and private
sector banks if sought under RTI
Act 2005. It asked the central bank
to put all its reports in public do-
main. The apex court did not enter-
tain the RBI’s plea that revealing such
details would flout the “fiduciary rela-
tionship” that the RBI had with banks.
12 January 31, 2016
Restrictions on govt ads
Common Cause vs Union of India
Judgment: 13.05.2015
Putting an end to the practice of projecting individual functionaries of the government or a politi-
cal party through government advertisements, the apex court banned their pictures from appear-
ing in such releases. Exemptions were given only to the president, prime minister and the chief
justice of India. It said the practice led to creating a “personality cult” at the cost of public money.

13. Center’s nod needed for remission
Union of India vs V Sriharan @ Murugan
& Ors
Judgment: 02.12.2015
Bringing clarity on the release of convicts in the
Rajiv Gandhi assassination case, the Supreme
Court restricted the Tamil Nadu government from
setting free seven convicts. It ruled that the state
government can’t take a unilateral decision to set
free the convicts in cases
probed by a central
agency and the center’s
nod is needed. The
apex court had earlier
commuted the death
sentences of three con-
victs to life imprisonment.
Thereafter, the state govern-
ment had decided to release
them as well as other four lifers.
The center had objected to the move.
No reservation for Jats
Ram Singh & Ors vs Union of India
Judgment: 17.03.2015
Sensing that there was a political agenda behind the center’s plea to
reconsider its verdict against including Jats in the OBC category, the apex
court stuck to its stand by dismissing the review petition of the NDA govern-
ment. The Court observed that the attempt was “negative” and “retrograde”. It
had earlier struck down the March 2014 notification by the UPA government
to include Jats in the central list of OBC category.
No reprieve for Chautalas
(Raksha Jindal vs Central Bureau
of Investigation)
Judgment: 03.08.2015
In a major ruling that corrupt
politicians need to be dealt with
an iron hand, the Supreme
Court upheld the convic-
tion and 10-year jail sen-
tence of former Haryana
CM Om Prakash Chautala by
the Delhi High Court. The
case related to the teachers'
recruitment scam in Haryana.
The Court also did not spare his
son, Ajay Chautala, and 53
others involved in the scam.
—Compiled by Shailendra Singh, Sandeep Sharma
and Prabir Biswas
Cleaning up cricket
(Board of Control for Cricket in India vs Cricket
Association of Bihar & Ors)
Judgment: 22.01.2015
In a significant verdict aimed
at cleaning up murky opera-
tions in the BCCI, the apex court
restricted the then ousted BCCI
chief N Srinivasan from contesting
for the presidency. The Court ruled
that Srinivasan must stay away
from BCCI affairs as there was a
conflict of interest over his company,
India Cements, owning the IPL
franchise, Chennai Super Kings.
It also took the BCCI to task for
allowing betting and match-fixing that could kill
cricket in India.
Ban commercial surrogacy
(Union of India vs Jan Balaz & Ors)
Interim Order: 14.10.2015
Concerned over commercial surrogacy and its ill-
effects in India, the apex court suggested a possible
ban on commercial surrogacy.
The Court noted that it was a
major profit-making busi-
ness and asked the gov-
ernment to bring com-
mercial surrogacy under
the ambit of law. The
observation was critical as
the center later banned the
import of human embryos
for commercial surrogacy.
The ban has, however, hit poor women who
sustained their families by being surrogate mothers.
INDIA LEGAL January 31, 2016 13

14. T
HE Mumbai police faced another
setback recently. While the first
setback was the Bombay High
Court passing strictures against
it for lapses in investigation in
the Salman Khan case, the second was when
the Supreme Court stayed the appeal of 11
policemen convicted in a fake encounter case
where Ram Narayan Gupta, alias Lakhan
Bhaiya, an alleged member of the Chhota
Rajan gang, was killed in November 2006.
The 11 policemen had, on January 4,
2016, applied for more time to surrender but
the Supreme Court Bench of Justices Sharad
Bobde and PC Pant stayed their appeal and
ordered them to surrender immediately.
Seven cops did. Later three more surren-
dered, except one. The petition was also
withdrawn by the cops from the apex court.
The Supreme Court then asked the
Bombay High Court, which had earlier pro-
nounced the policemen guilty, to decide the
case within six weeks.
The brother of Lakhan Bhaiya, advocate
Ramprasad Gupta, told India Legal that as
per law, he was expecting this verdict from the
Supreme Court. He said the Maharashtra
government’s earlier decision to stay the jail
sentence of the 11 cops had sent a wrong mes-
sage to society. “When the cops were found
guilty by the Bombay High Court in the fake
encounter against my brother, I don’t know
why the government stayed their jail convic-
tions. It sends the message that whatever
wrong the police do, the state shall stand by
them. I welcome the order,” he said.
Now that they had been found guilty, Gu-
pta said he wants to see them hanged. He
cited the verdict of Justices Markandey Katju
and Gyan Sudha Misra in May 2011 where
they had said that fake encounter killings fell
within the category of “rarest of rare” cases
and policemen found involved in such killings
“must be given the death sentence”. Gupta
said: “I had challenged the government in the
Bombay High Court and referred to Justice
Katju’s judgment.”
Interestingly, the case has seen a few
twists and turns. While the trial court and
High Court found the 11 policemen guilty, the
person who allegedly ordered and supervised
the killing, encounter specialist Pradeep Sha-
rma, was acquitted.
It was in July 2013 that sessions judge VD
Jadhwar convicted three policemen—senior
inspectors Pradeep Suryavanshi, Tanaji De-
sai and Dilip Palande—for Lakhan Bhaiya’s
killing and others for aiding and abetting it.
Advocate Abha Singh said the govern-
ment has powers under Section 432 of the
CrPC to suspend sentences. “Firstly, we need
to understand that Lakhan Bhaiya was an
aide of dreaded gangster Chhota Rajan. He
was not an innocent man,” she said. “But
SUPREME COURT/Lakhan Bhaiya Case
Though Maharashtra stayed the jail convictions
of 11 Mumbai policemen for allegedly killing
gangster Lakhan Bhaiya, the apex court took a
dim view of it and asked them to surrender
By Neeta Kolhatkar
DEATH BY
ENCOUNTER?
(Top) Lakhan
Bhaiya
MumbaiPolice
UnderaCloud
Illustration: Amitava Sen
14 January 31, 2016

15. IL
there is a travesty of justice that the one to
order the killing has been let off, while others
have to pay the price. We are time and again
seeing two sets of justice. If we go by what
Chhota Rajan has said, that he fears the
Mumbai police because some of them are
close to Dawood Ibrahim, there is all the
more reason for the court to be careful before
acquitting Sharma.”
O
fficials in Chief Minister Devendra
Fadnavis office said that the govern-
ment will not appeal in the Supreme
Court over this matter as it wants to avoid fur-
ther controversies. “The government only
took a lenient stand because these are consta-
bles and policemen in the lower rank. While
the senior officer was let off, there is nothing
wrong in it as the state is empowered to do so
under Sections 432 and 433 (A),” said an offi-
cial on condition of anonymity. “For the
record, the National Human Rights Commi-
ssion had stated that it was a genuine enco-
unter. However, the court has taken a differ-
ent view. We will go by the Supreme Court
order,” he said.
Meanwhile, the accused policemen are
being supported in the Supreme Court by
Patit Pavan Sanghatana, a Hindu right-wing
outfit. Incidentally, its founder member,
Nitin Sontakke, was arrested in July 2014 by
the Economic Offences Wing for allegedly
duping Indian Bank, Pune, to the tune of `84
crore in 2010.
Sontakke tersely said the apex court has
only admitted their application and they have
vowed to fight for these policemen. “We have
asked senior Supreme Court lawyer KTS Tulsi
to represent the policemen in Court. These
are not just the sentiments of our Sangh-
atana. Former chief minister Narayan Rane,
former deputy chief minister, Ajit Pawar and
the late home minister RR Patil too believed
in helping the police. They fight against anti-
social elements; who will ascertain that they
are guilty? Not the media; let the Supreme
Court decide that,” Sontakke said.
He alleged that the media conducted its
own trial and called the accused cops “guilty”,
which he said was malicious. “I challenge the
media to see the report filed in the trial court.
It is a public document. See whether they
CREDIBILITY
CRISIS?
(Top) For the Mumbai
police, the Lakhan
Bhaiya verdict was
another setback
(Above, L-R)
Advocate Ramprasad
Gupta, brother of
Lakhan Bhaiya; Nitin
Sontakke, the founder
of Patit Pavan
Sanghatana
have cleared the policemen. The same trial
court stated that evidence against these cops
is poor. The media is spreading wrong views
instead of seeing the facts placed before the
court,” asserted Sontakke.
Gupta and his family, meanwhile, have
received police security after the killing of an
eye-witness and threats to him. “The threats
have not stopped. This fight has been against
all odds and is still not over,” said Gupta.
“Legally this case is important. Till 2006,
many encounters took place in Maharashtra
and other areas. After the order of Justices
Katju and Misra, we saw a decrease in them.”
This case has highlighted the stiff opposi-
tion to encounter killings by courts. The
defense used by the police that they have
cleansed the system by taking the law into
their hands, is not well-received.
Neeta Kolhatkar
INDIA LEGAL January 31, 2016 15

16. SUPREME COURT
Taking a grim view that nothing was
being done for whistleblowers’ pro-
tection, the Supreme Court asked the
center to apprise it of the steps it
wished to take in this regard. The
Court noted that the center should
either frame a new law for the purpose
or tone up the current administrative
system so that whistleblowers do not
face threats or harassment. The
Whistleblowers Protection Bill is yet to
be passed by parliament.
Noting that disclosure of leads on
corruption was nothing unusual and
was in fact a global phenomenon, the
Court gave the government seven
days to come up with a response. The
center submitted that a legislation was
on its way but the Court felt that the
situation couldn’t be allowed to remain
in a limbo.
The Court was responding to a
2014 PIL filed by NGO Parivartan
which pleaded that whistleblowers
be protected.
Need a law on
whistleblowers
The apex court permitted the Gujarat
government to go ahead and file a
chargesheet against Patidar Anamat
Andolan Samiti convenor Hardik Patel
in a trial court for his call to kill
policemen in the state.
The Gujarat government was asked
by the Court to hand over a copy of
the chargesheet to Patel’s counsel as
soon as it was filed.
While ruling that it would finally
decide whether sedition charges could
be slapped against Hardik or not, it did
not concede to the state government’s
insistence to examine the chargesheet
right away, observing that it must be
taken up by the trial court first.
Pendency of cases is a major issue
for the judiciary. In an unprecedented
initiative, an internal study on the issue,
ordered by the Chief Justice TS Thakur,
examined the role of 13 senior judges in
bringing down pendency. The study, con-
ducted by the SC registrar from July
2015 till 11.25 am on December 12,
2015, concluded that five of the judges
brought down pendency while the other
eight actually contributed to it.
All the judges headed a two- or three-
judge bench. The parameters for the
study were: Number of cases listed
before a judge, number of cases in which
the concerned judge issued notices, and
the number of cases disposed.
Internal study
on pendency
of cases
Sikhs go to
court against
jokes
Taking up the grievance of the Delhi
Sikh Gurdwara Management
Committee against disparaging
jokes on Sikhs, the apex court
observed that it would look into its
PIL seriously. It was alleged by the
committee that the jokes were
infringing upon the human rights
of the community.
The PIL highlighted the rampant
traffic of such jokes on internet and
claimed that these were showcasing
the Sikhs as a community with “low
intellect”. The impact of such jokes
had been intimidating with many
Sikhs even changing their names to
save themselves from disgrace, the
PIL alleged.
Sedition charge against Patel
16 January 31, 2016

17. — Compiled by Prabir Biswas; Illustrations: UdayShankar
Former chief justice of
India (CJI) SH Kapadia
passed away in Mumbai
in the early hours of
January 5. He was 68
years old.
The first Parsi CJI was
appointed on May 12,
2010 and retired in
September 28, 2012.
Some of his verdicts like
the one on Ayodhya title
and Vodafone tax issue
attracted wide attention.
Justice Kapadia rose
from being a humble
office assistant to
become a Supreme Court
judge on December 18,
2003—a judicial career
that will inspire many
upcoming lawyers.
After banning registra-
tion of all diesel cars in
the National Capital Region
(NCR), the Supreme Court
questioned the center’s
role in reducing pollution
caused by diesel cars.
The Court observed
that the government
should have done with all
official diesel cars more
than 10 years old that
were plying in NCR. The
Court asked the center to
come back within three
weeks with an affidavit
citing that a decision had
been arrived at on remov-
ing such diesel cars after
seeking the approval of all
concerned departments.
In another hearing on
diesel cars, the Court took
a dig at the car manufac-
turers of diesel vehicles
with 2,000 cc engine
capacity or more, asking
them whether their vehi-
cles emitted oxygen. The
auto majors had sought
relief on the apex court’s
ruling to ban the sale of
such vehicles in NCR from
January 1 to March 31,
this year. They pleaded
that small cars contributed
more to pollution than big
diesel vehicles.
The Court made it
clear that the ruling will
remain in force unless and
until the auto majors could
prove, backed by a com-
prehensive and bona fide
study based on figures,
that the concerned diesel
vehicles were indeed less
polluting.
Onus on polluter
JusticeSHKapadianomoreWoes of Air India
Lashing out at Air India for being in the red,
the apex court noted that private airlines
at the same time were making money. The
Court also pulled up the national carrier for
failing to provide connectivity from Delhi to
Shimla despite having an airport in Himachal
Pradesh’s capital, built at a cost of around
`100 crore.
The Court wanted to know who should
take the blame for Air India’s loss-making
operations. Its observations came while it
was hearing an appeal by Air India against
the verdict of the Himachal Pradesh High
Court. The High Court had ordered the
national carrier to commence flights on an
experimental basis on the Delhi-Shimla route,
The apex court had earlier stayed the High
Court’s verdict.
Air India contended that it was not eco-
nomically viable to run operations between
the two destinations because the airport was
too small for big aircraft to land and it had
no refuelling facility. However, the Court
refused to buy this argument, pointing out
that Chandigarh, half an hour by air from
Shimla, had regular operations from other
parts of India and Air India should connect
Chandigarh to Shimla.
The Court, while continuing its stay, asked
the Ministry of Civil Aviation, the Airports
Authority of India, the Directorate General of
Civil Aviation and the Himachal Pradesh gov-
ernment to respond on the issue. The matter
will be taken up on February 16.
INDIA LEGAL January 31, 2016 17

18. The order of a
judge of the Gujarat
High Court where
he remarked on
reservation almost
led to his
impeachment
before the offending
paragraph
was deleted
By Kaushik Joshi
COURTS/ Gujarat/Impeachment Move
DisorderoverOrder
ROW OVER QUOTA
(Top and right) Gujarat High Court;
Hardik Patel being produced in a
court in Ahmedabad
18 January 31, 2016
UNI

19. any citizen of this country to ask for reserva-
tion after 65 years of independence….”
Irked by this comment on reservation, as
many as 58 Rajya Sabha MPs petitioned its
chairman and Vice-President Hamid Ansari
to initiate impeachment proceedings against
Justice Pardiwala. The MPs included senior
Congressman Oscar Fernandes, CPI leader
D Raja and Janata Dal (U) leader KC Tyagi.
A judge of the Supreme Court or a high
court can be removed only by an order of the
President of India and that too after adop-
tion of an impeachment motion by each
House of parliament by a majority not less
than two-thirds of the total membership of
that House.
Alarmed by the ugly turn of events,
I
N a surprising turn of events, an inn-
ocuous remark in a judicial order by
Justice JB Pardiwala snowballed into
a major controversy in the Gujarat Hi-
gh Court recently.
On December 1, 2015, while deciding a
petition moved by Hardik Patel (leader of
the Patidar Anamat Andolan Samiti who is
spearheading the Patel quota agitation) and
others to quash sedition charges against
them, Justice Pardiwala had in para 62 of
the judgment observed: “If I am asked by
anyone to name two things which have
destroyed this country or rather have not
allowed the country to progress in the right
direction, then the same are (i) Reservation
and (ii) Corruption. It is very shameful for
Justice V Ramaswami of the
Supreme Court was the first judge
against whom impeachment proceed-
ings were initiated in independent India.
He was charged
with ostentatious
expenditure at his
official residence
during his tenure
as Chief Justice of
Punjab and
Haryana. The BJP
and Left parties
submitted a notice
of motion to parliament seeking his
removal. A committee formed to look into
the issue found Ramaswami guilty of 11
out of 14 charges. The impeachment
motion was placed in the Lok Sabha for
debate and voting was on May 10, 1993.
Out of 401 members present that day,
there were 196 votes for impeachment,
no votes against and 205 abstentions by
the Congress and its allies. As the
motion required not less than two-thirds
majority of the total number of members
present in both houses of parliament, it
failed to pass. This was challenged
before the Supreme Court which upheld
the decision of parliament. Meanwhile,
then CJI Sabyasachi Mukherjee advised
Justice Ramaswami to desist from dis-
charging judicial functions as long as the
probe continued and his name was
cleared. Justice Ramaswamy was sent
on leave for five months.
Justice Soumitra Sen, a former judge
of the Calcutta High Court, was the first
judge to be impeached in the Rajya
Sabha for misappropriation of funds he
received as a receiver appointed by the
High Court and misrepresenting facts
with regards to it. In 2009, 58 Rajya
Sabha MPs moved a petition for his
impeachment and a committee found
him guilty. The report said that oral and
documentary evidence had established
that two separate accounts were opened
by Justice Sen as receiver in his own
name and a sum of `33,22,800, got from
the sale of goods, was brought into the
two accounts. On August 18, 2011, the
Rajya Sabha passed the impeachment
motion by an overwhelming majority of
189 votes in favor and 17 against. But
ahead of the
impeachment
motion against
him in the Lok
Sabha, Justice
Sen resigned on
September 1,
2011 and the Lok
Sabha dropped
the impeachment proceedings.
Meanwhile, the then chief justice of the
Calcutta High Court withdrew all judicial
work from Justice Sen for several
months.
Justice PD Dinakaran was the Chief
Justice of the Sikkim High Court.
Following allegations of corruption and
subsequent impeachment proceedings,
he resigned on July 29, 2011. In
September 2009,
there were allega-
tions of judicial
misconduct and
corruption against
him by Chennai-
based Forum for
Judicial
Accountability.
These were confirmed by the Tiruvallur
collector in two reports. After this, the
Supreme Court collegium dropped his
name for elevation. Later, on a complaint
from 76 MPs, the Rajya Sabha chairman
admitted a motion for his removal. The
panel to probe the charges also found
them true. Mysteriously, Justice
Dinakaran had a change of heart and
wrote to the law ministry seeking with-
drawal of his resignation. It was rejected.
His pre-emptive resignation helped scut-
tle the probe against him.
Judgeswhofacedimpeachmentproceedings
INDIA LEGAL January 31, 2016 19

20. IL
COURTS/ Gujarat/Impeachment Move
CRY FOR
IMPEACHMENT
(L-R) Congress'
Oscar Fernandes,
CPI leader D Raja
and Janata Dal (U)
leader KC Tyagi
Advocate-general of Gujarat Kamal Trivedi
and public prosecutor Mitesh Amin decided
to file a Speaking to Minutes note to put
the matter to quietus by requesting the
Court to delete the controversial observa-
tions. (See Box)
A
min informed India Legal that it was
felt that the remarks in para 62 of the
judgment were not relevant for
deciding the main matter. Acting on the
request, a single-judge bench of the Gujarat
High Court presided over by Justice JB
Pardiwala ordered the deletion of the “anti-
reservation” observations in para 62 of
the judgment.
BM Mangukiya, the advocate who
appeared for the original applicant submit-
ted that he had no objection if para 62 was
deleted from the original judgment.
Justice Pardiwala then observed in his
order dated December 18, 2015: “I am of the
view that having regard to the relief prayed
for in the main matter which was an applica-
tion under Section 482 of the Criminal
Procedure Code, for the quashing of the FIR,
para 62 was not relevant or necessary for
deciding the main matter.”
The court accepted the prayer of the state
and ordered deletion of this para 62. It also
directed the registry to issue a fresh certified
copy of the judgment.
Thus, a judicial order took a dramatic
shift not witnessed in years.
What is meant by putting a
matter to quietus by a court?
It means that it is no longer neces-
sary to proceed with the matter
because of some development. The
matter is therefore put to an end. In
other words, the matter becomes
infructuous.
What is meant by Speaking to
Minutes note?
Whenever an advocate wants a
judgment to be corrected/modified,
he files a note in the office showing
the points on which he wants to
speak to the minutes. He shall also
serve a copy of this to the advocate
on the other side. If the court agrees
to this change, it passes a
“Speaking to Minutes” order which
is a modified/corrected order. Such
a nomenclature is predominantly
used in the High Court of Judicature
at Bombay. Other courts can have a
different nomenclature for the same.
—Shailendra Singh
JudicialTerminology
“If I am asked by anyone to name
two things, which have destroyed
this country or rather, have not
allowed the country to progress in
the right direction, then the same
are (i) Reservation and (ii)
Corruption. It is very shameful for
any citizen of this country to ask
for reservation after 65 years of
independence. When our
Constitution was framed, it was
understood that the reservation
would remain for a period of 10
years, but unfortunately, it has con-
tinued after 65 years of independ-
ence. The biggest threat, today, for
the country is corruption. The
countrymen should rise and fight
against corruption at all levels,
rather than shedding blood and
indulging in violence for the reser-
vation. The reservation has only
played the role of an amoeboid
monster sowing seeds of discord
amongst the people. The impor-
tance of merit, in any society, can-
not be understated. The merit
stands for a positive goal and
when looked at instrumentally,
stands for ‘rewarding those actions
that are considered good’. Then,
this instrumental nature of merit
that should be given importance—
emphasizing on and rewarding
merit is a means towards achieving
what is regarded as good in the
society. The parody of the situation
is that India must be the only coun-
try wherein some of the citizens
crave to be called backward.”
ContentiousPara62
20 January 31, 2016

21. COURTS
The Jammu and Kashmir High
Court recently struck down an
earlier ruling by its single bench on
hoisting of the state flag along with
the national flag on government
cars and buildings. The single
bench had directed the state
government to do so on the ground
that the J&K constitution mandated
such a practice.
The single bench had issued the
order after hearing a petition which
wanted the PDP-led government in
the state to go back to its earlier
position of simultaneously hoisting
both the flags. The government
was forced to withdraw it after
objections from the BJP, its partner
in the state government.
The High Court also put on hold
the single bench’s observation that
the Jammu and Kashmir (Sixth
Amendment) Act, 1965 was
against the structure of the state’s
constitution. The amendment had
replaced sadr-e-riyasat (head of the
state) with governor. The bench’s
comment that Article 370 was
beyond abrogation, repeal or
amendment was also stayed by
the High Court.
J&KHCrevisesits
verdictWhile interpreting Section 354 of the
Indian Penal Code (IPC) along with
Section 8 of IPC, a Mumbai sessions court
ruled that a woman too can be prosecuted
for assaulting another woman with the
intention of outraging her modesty.
Section 8, related to gender, clearly
states: “The pronoun ‘he’ and its deriva-
tives are used of any person, whether male
or female.” Section 354 deals with assault
or criminal force used against a woman
with the intent to outrage her modesty.
The Court was adjudicating a case
wherein 11 women and a man had assault-
ed a 22-year-old woman, tore off her
clothes and paraded her naked in Sewri,
south Mumbai, in 2010. It was a reaction
to her brother allegedly raping a four-year-
old girl, followed by his arrest.
It overruled the defense argument that
only men could be charged for outraging a
woman’s modesty. All of them were held
guilty and sent to jail for two years by the
Court along with a fine of `1,000 each.
354, for women too
Online social networking service Facebook
earned a reprieve from the Gujarat High
Court recently over objectionable comments
on its website.
Although it had removed the comments,
Facebook had to get a stay from the High
Court on criminal proceedings launched by a
metropolitan court on the matter.
A credit cooperative society in Gujarat
took exception to the defamatory comments
made by some members of Adarsh Credit
Cooperative Society Ltd in 2014. The
comments had appeared in many other
social networking sites besides Facebook.
Although they removed them on requests
made by the society, Facebook did not do
so. The society approached a metropolitan
court. It also wanted action against
Facebook for allowing the comments to stay
on its website.
The metropolitan court asked Facebook
to respond while starting criminal proceed-
ings against it. Facebook removed the com-
ments but had to rush to the High Court to
seek relief against criminal proceedings.
Relief for Facebook
— Compiled by Prabir Biswas
Illustrations: UdayShankar
Relief for Yeddyurappa
The Karnataka High Court recently ruled
that there would be no legal action
against former state chief minister
BS Yeddyurappa in pursuance of 15 FIRs
registered against him by the Lokayukta
police. The FIRs were related to the alleged
illegal de-notification of land owned by the
Bangalore Development Authority.
The FIRs filed under the Prevention of
Corruption Act in June 2015 were based
on the Comptroller and Auditor General’s
(CAG) report. But the Court ruled that no
new case could be filed against the BJP
national vice-president on the basis of the
CAG report.
The former CM had challenged the
FIRs on the ground that the Lokayukta
Police could not prosecute him on a CAG
report as the onus lay with the legislature
to go by it or reject it.
INDIA LEGAL January 31, 2016 21

22. A
GUJARAT High Court judg-
ment has given a ray of hope to
couples living in disharmony and
seeking a quick end to their mar-
riage. The order has waived the
mandatory six-month cooling period in granti-
ng divorce by mutual consent and allowed a
quick end to matters.
The order by Justice RD Kothari recently
took cognizance of the fact that a trial court
had, in a very short order, rejected an appli-
cation for divorce only on the ground that it
did not have the powers to waive the six-
month period. Taking the facts of the case
and the circumstances into cognizance, the
high court ruled: “The present petition is
allowed. 6 months period for seeking divorce
is hereby waived. The order dated 11.12.2015
COURTS/Gujarat/Divorce
A Gujarat High Court order has waived the
mandatory six-month cooling period in
granting a divorce. Could it pave the way
for quick divorces in other cases too?
By RK Misra in Gandhinagar
Fast-Track Separation
passed by the trial court is hereby set aside.
Rule is made absolute.”
NO POWERS
The case before the high court involved
Nilamben and Bharatkumar Patel who were
married in 2002, but due to irreconcilable dif-
ferences, decided to separate in 2008. They also
obtained the customary divorce on August 18,
2008, the court noted. Thereafter, the parties
filed a divorce petition by mutual consent on
August24,2015,undertheHinduMarriageAct.
They then filed for a waiver of the six-month
period in October 2015 before a trial court.
However, this was rejected by this court as it said
it had no powers to do so. Aggrieved, the couple
knocked on the doors of the high court.
Granting the waiver, Justice Kothari set
aside the order of the trial court, saying that
it had rejected the application without con-
sidering the facts and circumstances of the
case. The high court enumerated these by
saying the couple had been residing separate-
ly for more than seven years and gave the rea-
sons for the urgency as expressed by the wife.
“Besides these circumstances, the trial court
could have verified their willingness and
urgency and could have satisfied itself,” the
22 January 31, 2016

23. high court order said.
The reasons for the wife’s urgency was that
she intended to get married and as her would-
be husband was abroad, the passport proce-
dure (which involved change of husband’s
name) needed to be completed, preferably by
the end of January 2016.
Interestingly, the trial court had cited a judg-
ment by Justice Abhilasha Kumari of the
Gujarat High Court in the Jigneshkumar
Dilipbhai Patel v/s principal senior civil judge
case in rejecting the waiver plea. In this case,
Justice Kumari had ruled on November 30,
2013, that the trial court had not considered its
applicability and cited principles of law laid
down by the Supreme Court in the following
judgments—Anil Kumar Jain v. Maya Jain
(supra) and Manish Goel v. Rohini Goel (supra).
SC JUDGMENT
The SC judgments said that neither civil courts
nor the high court can pass orders to curtail the
statutory waiting period of six months pre-
scribed under Section 13B(2) of the Act. Except
for the Supreme Court, no high court or civil
court has the power to grant relief by invoking
the doctrine of irretrievable breakdown of mar-
riage, she had stated, as she rejected the peti-
tion. The case before Justice Kumari pertained
to a couple, Jigneshkumar and his wife, who
were married in 2009 according to Hindu rites
and rituals. Unable to adjust, they started liv-
ing separately from 2011 and filed a divorce
petition in October 2013 before the principal
civil judge, Kalol, Gandhinagar, under Section
13 of the Hindu Marriage Act, 1955, seeking
dissolution of marriage and a decree of divorce.
They also filed an application under Section
13B (2) seeking waiving of the statutory six
months period for granting divorce.
The reason cited for seeking a waiver was
that the wife had got a student dependent visa
on the basis of her marriage and had gone to the
UK on it. This would now expire in December
2013 and she needed to apply for an extension of
visa before the said date, for which the decree of
divorce was needed. The couple was, however,
permitted to withdraw the marriage annulment
application before the High Court so that it
could be filed before the principal civil judge at
Kalol. But with the rejection of the plea by the
civil judge, the matter was back before the high
court which rejected the plea for waiver.
Meanwhile, the ministry of external affairs
(MEA) had, in a circular late last month, stipu-
lated that any married Indian—be it in India or
abroad—divorced abroad will have to secure an
Indian court's order before applying for
changes in the passport. Earlier, an authentica-
tion from MEA on a divorce decree granted by
a foreign country's court was enough. But
changes became necessary after an increasing
number of fraud cases came to light. “Some
cases were detected but many were not,” said a
senior passport office functionary.
Hina Desai, a councillor, expressed satisfac-
tion with this decision. “Women go through a
lot of mental trauma when they are victims of
marital fraud. This will help curb them because
the divorce will need to be validated in an
Indian court.” While she was fine with the six-
month cooling period, she strongly advocated
safeguards to protect the interests of women.
Nilesh Bhavsar, a lawyer, said the cooling-
off period will be helpful in genuine cases of
couples seeking a divorce by mutual consent
and who are in a hurry. “It prevents needless
waste of time and money as it saves people the
effort to go to the Supreme Court. The court’s
approach is humanitarian and positive.”
Justice Kothari’s judgment could well act as
a beacon in other troubled cases too.
The ruling comes
after two SC
judgments had
held that courts
could not curtail
the mandatory
waiting period.
Lawyers have
praised the
Gujarat verdict as
a humanitarian
and positive one.
IL
Anil Shakya
INDIA LEGAL January 31, 2016 23

24. T
HIS Christmas, many chil-
dren in the US would have
got a gift that would have
sent their dreams soaring.
Literally. In fact, the
Federal Aviation Authority
(FAA), the US regulatory
body, expected more than a million drones to
be sold during the holiday season. While they
are advertised as toys, they are anything but
that as they have the potential to cause harm.
Alarmingly, there are no regulations for this
thriving industry.
Take the case of California-based Owen
Ouyang who was flying a drone near his
house on a hill at 750 feet. As luck would
have it, his drone lost signal and nearly col-
LEAD/ Law on UAVs
The global
production of
drones is expected
to soar to $93 billion
in the next decade.
However, as this
industry has no
regulations, there is
fear that they could
be used by terrorists
and criminals
By Shobha John
ThatDroneover
24 January 31, 2016

25. lided with a California Highway Patrol heli-
copter. While Ouyang managed to get his
drone back home, what he didn’t bargain for
was a police car showing up outside his house
a little later. He wasn’t charged, but it sure
gave him the heebie-jeebis.
NEFARIOUS ACTIVITIES
And this is what owners of drones don’t real-
ize. These attractive machines can crash into
low-flying planes and even be used for nefar-
ious activities such as terrorism. This ass-
umes significance in the light of the Path-
ankot air base in Punjab being recently infil-
trated by JeM militants, leading to six of
HI-TECH
SURVEILLANCE
(Left) A Belgian police
officer pilots a drone
which can watch over
crime and terror
threats;
(Below) An Israeli
soldier launches a
drone outside the
Gaza Strip. Israel is
the leading exporter
of drones
myHead!
Photos: UNI
INDIA LEGAL January 31, 2016 25

26. them being killed and seven security person-
nel losing their lives.
In fact, on December 1, in a report tabled
in parliament, the home ministry had, on the
basis of inputs by intelligence agencies, said
that terror groups may carry out attacks
across India using sub-conventional aerial
platforms. India is anyway using UAVs along
its Western sector to stop infiltration from
Pakistan and could use them along its 1,138
km Indo-Bangladesh border too, where ter-
rorists are known to sneak in.
Thanks to the small sizes of some drones,
they are often difficult to detect and stop,
making them a viable option for criminals
and terrorists. And if they carry bombs or
chemical weapons, the damage can be great.
In fact, last May, a man was detained in
Washington for trying to fly a drone over the
White House.
In August, 2015, an Allegiant Air plane
was flying into Los Angeles airport when its
pilot reported that a small drone under the
plane’s wing almost hit him. Shockingly, the
FAA said that nearly 700 incidents of such
nature occurred in 2015 alone.
DIFFERENT SIZES
UAVs, or drones, are pilotless aerial vehicles
used for reconnaissance, surveillance, intelli-
gence gathering and aerial combat missions.
While in India drones are mainly used by the
armed forces, their civilian use is climbing
up. “Small UAVs usually fly lower than 400ft
and those used by forces may be operated up
to 3,000-3,500ft. There is little danger of
them hitting planes flying at around 35,000
ft,” said Ankit Mehta, co-founder of idea-
Forge, a Mumbai-based company making
drones. There are many classes of UAVs—
those which fly above 30,000 ft, those
between 20-30,000 ft, micros which can be
carried by one person and minis which fit
into a palm.
In fact, US-based Teal Group (a team of
analysts on the aerospace and defense indus-
try) estimates that UAV production will soar
from current worldwide production of $4
billion annually to $14 billion, totalling $93
billion in the next 10 years. Military UAV
research spending would add another $30
billion over the decade.
However, the International Civil Aviation
Organization (ICAO), a UN body, will come
up with guidelines for civilian drones only in
2018. Once approved, these will guide
ICAO’s 191 member states in setting their
own regulations. The FAA, meanwhile, is in
the process of creating regulations for small
UAVs (less than 55 pounds), which are
expected to be out by the middle of this year,
said Philip Finnegan, director of corporate
analysis, Teal Group Corp, to India Legal via
email from Fairfax, Virginia. Incidentally,
smaller drones are sold faster than the bigger
military UAVs. Finnegan further said: “FAA
IN WAR AND PEACE
(L-R) Lebanese soliders carry
parts of an Israeli drone
which fell near the
Israeli-Lebanese border;
Mumbai police showing the
drone that flew around
BARC in July 2015
LEAD/ Law on UAVs
Photos: UNI
26 January 31, 2016

27. regulation is a critical step towards develop-
ment of a commercial UAV market. Curr-
ently, individuals and companies are allowed
to apply for exemptions to use commercial
UAVs and regulations will help broaden the
market considerably.”
Till the time that regulations come up,
registration of drones is needed in the US.
Violations can lead to fines up to $2,50,000
and imprisonment up to three years. The
FAA, incidentally, has been working with
Transport Canada for common safety stan-
dards for drones weighing under 25 kg to
facilitate commerce between them.
While each country presently is responsi-
ble for creating its own regulations, remote
areas in Latin America and Africa may cho-
ose to allow them to operate without regula-
tions, informed Finnegan.
BANNED IN INDIA
In India, commercial UAV use has been
banned pending the issuance of new rules by
the Director General of Civil Aviation
(DGCA). On October 7, 2014, the DGCA
issued a notice on use of UAVs for civil appli-
cations. It said: “UAS (unmanned
aircraft systems) has potential for a
large number of civil applications.
However, its use besides being a
safety issue, also poses a security
threat. The airspace over cities in
India has high density of manned
aircraft traffic. Due to lack of regula-
tion, operating procedures/stan-
dards and uncertainty of the tech-
nology, UAS poses threat for air col-
lisions and accidents. The civil oper-
ation of UAS will require approval
from the Air Navigation Service
provider, defense, Ministry of Home
Affairs and other concerned security
agencies, besides the DGCA. DGCA
is in the process of formulating the
regulations…. Till such regulations
are issued, no non-government
agency, organization or individual
will launch a UAS in Indian civil
airspace for any purpose whatsoev-
er.” This means that government
agencies can fly them, but not pri-
vate operators. But this has often
been flouted with impunity.
Drone flying in India has often led to
panic reactions. In July 2015, a drone was
seen flying near the Tata Institute of Social
Sciences in Mumbai, located close to Bhabha
Atomic Energy Research Centre (BARC).
Though two employees of real estate website
Housing.com were questioned for flying it
close to BARC, no case was registered.
While state governments have banned
private use of drones, the police has often
used it for crowd control. In October 2014,
the police deployed a drone in Trilokpuri in
East Delhi during communal riots to scan the
rooftops for bricks which could be used as
weapons. And sure enough, the drone sent
images of bricks stored on rooftops, which
the police then recovered.
Drones have also been illegally used at
PATRIOTISM TAKES
WINGS
Drones during
Independence Day
In a report tabled in parliament recently,
the home ministry said that terror groups
may carry out attacks across India using
sub-conventional aerial platforms.
INDIA LEGAL January 31, 2016 27

28. LEAD/ Law on UAVs
weddings of Richie Riches who want to cap-
ture this special moment for eternity and are
known to whirr about the heads of guests at
a height of 25 ft or more. Equipped with high
resolution cameras, zoom lenses and advan-
ced stabilizers, they are a novelty factor.
PRODUCTIVE USES
The civilian use of drones has many other
advantages too. Mehta of ideaForge told
India Legal that the market for UAVs in
India has expanded significantly in the
defence and internal security side. “Almost
all central armed police and defence forces
plus state police have bought mini and micro
UAVs to support their operations. Other uses
of drones are in news and media operations,
movies and advertising, real estate, agricul-
ture and the energy sector.”
ideaForge has deployed over 100 drones
with various forces for anti-terrorism activi-
ties, traffic management, agriculture, border
monitoring, etc. and is selling only to govern-
ment customers as per regulations. In 2013,
it made its first drone, NETRA. A newer
version, NETRAv2, can now fly for more
than 40 minutes and over a distance of more
than 4 km. It weighs less than 1.5 kg and can
be made to hover over an area, zoom in
and stream live video. ideaForge also
has a fixed-wing UAV called SKYBOX
UAV, which can fly for over 90 minutes
and has a range of over 7 km in its high-
est configuration. The cost of both
ranges from $60,000 to $1,00,000,
said Mehta.
IGNORED ISSUES
Air-Vice Marshal Manmohan Bahadur
VM (retd), Distinguished Fellow, Centre
for Air Power Studies, said that in order
for drones to fly in a common airspace,
“they should be certified, need a colli-
sion and hazard avoidance equipment,
foolproof security for communication
and data links”. He said it was impera-
tive that the armed forces, DGCA and
Airports Authority of India deal with
airspace management issues, conflict/
dispute resolution, certification of UAVs
and training of operators. “Another
important issue is that of liability. If a
UAV causes a mishap, who would be
responsible—the manufacturer or the
operator who could be controlling it
from a different country?” he asked.
However, Mehta said it would be dif-
ficult for drones to have collision detec-
tion systems like in planes. “Portable
UAVs are very small and cannot afford
unreasonable weight penalties if they
are to remain useful. Avoidance of
“DGCA is in the process of formulating the
regulations…. Till such regulations are issued, no
non-government agency... will launch a UAS in
Indian civil airspace for any purpose whatsoever.”
— DGCA notice of October 7, 2014
CREATIVE FLIGHT
(Below) NETRAv2 drone
developed by an Indian
company is sold to
government customers;
(Bottom) A drone deployed
during a film shoot in Himachal
Courtesy: IdeaForge
Muhindro Khundrakpam
28 January 31, 2016

29. manned aircraft is easily achieved by restrict-
ing the airspace used by UAVs.”
Drones are also being used by state gov-
ernments. The Mussoorie Dehradun Deve-
lopment Authority (MDDA) will, in the next
three months, deploy a drone to record pic-
tures and videos of encroachment of govern-
ment land and illegal colonies mushrooming
in the city. The MDDA has earmarked `10
lakh for the project. DHL will also reportedly
invest $16.3 million and introduce drones in
India for deliveries and managing logistics.
As part of the plan, state-of-the-art ware-
houses will be set up near high demand
growth regions such as Navi Mumbai, Ahme-
dabad, Kolkata, Ambala and Kochi. Drones
have also been used in disaster management.
However, the civilian use of drones has
increasingly come under attack abroad due
to privacy issues. More than 20 US states
approved drone laws last year. But the FAA
wants civilians to follow its own limited weak
rules. Interestingly, e-retail giants such as
Amazon and Google, which can use drones
for delivery, had hired lobbyists to visit avia-
tion committees on Capitol Hill so that
enough leeway is allowed for drones to fly. In
Chicago, drones are prohibited above sch-
ools, libraries, churches and private property
without permission. In Los Angeles, those
using drones near airports can face up to six
months in jail.
MILITARY DRONES
As far as military drones are concerned, they
generally operate in restricted airspace, said
Finnegan. “In the US, that means that civil
aircraft are not allowed into areas in which
military UAVs are operating,” he said.
Surprisingly, India is the largest importer
of military drones. It recently sought 100
UAVs from the US, both armed and surveil-
lance versions, worth $2 billion to bolster
itself against Chinese incursions. They inc-
lude the latest Avenger drones and Predator
XPs for Intelligence, Surveillance and
Reconnaissance. And between 1985 and
2014, India accounted for 22.5 percent of the
world’s UAV imports, followed by the UK
and France.
According to the Stockholm International
Peace Research Institute (SIPRI), 1,574 UAV
transfers took place between 1985 and 2014.
India’s first UAV delivery was from Israel in
1998. Israel, in fact, is the leading exporter of
drones, accounting for 60.7 percent between
1985 and 2014. China became the second-
largest exporter of armed UAVs in 2014, deli-
vering five drones to Nigeria, which deployed
them against Boko Haram, a terrorist outfit.
Considering the increasing importance of
drones, it is imperative that regulations be
put in place fast for this exciting industry. IL
SURVEYING THE
AFTERMATH
(Top) A drone deployed by
China to assess the damage
after explosions in Tianjin in
August 2015
TopRecipientsofUnmannedAerialVehicles,1985-2014
TopSuppliersofUnmannedAerialVehicles,1985to2014
Totalshare
1985-2014
Recipient
Supplier 1985-89 1990-94 1995-99 2000-04 2005-09 2010-14
1985-89 1990-94 1995-99 2000-04 2005-09 2010-14
Totalshare
1985-2014
India
UK
France
Egypt
Italy
Israel
USA
Canada
SovietUnion
France
-
-
-
65.5
-
8.5
66.5
-
25.1
-
18.3
21.4
60.3
-
-
55.9
15.9
31
n.a.
7.3
69.1
13.2
-
n.a.
7.9
79.6
12.8
-
n.a.
1.0
65.9
27.4
-
n.a.
0.7
60.7
23.9
6.4
1.9
1.6
-
-
60.3
21.4
-
14.6
-
18.9
-
-
56.8
-
6.7
0.7
9.4
39.6
23.2
4.0
-
1.2
13.2
33.9
3.7
0.7
9.8
22.5
20.5
9.8
7.4
5.2
Source: Stockholm International Peace Research Institute
UNI
INDIA LEGAL January 31, 2016 29

30. C
RICKET lovers across the country
and those who value accountability
and transparency in the manage-
ment and conduct of the game
have been hailing the recommen-
dations submitted by the Justice Lodha
Committee to the Supreme Court on January 4.
But what of the highly influential Board of
Control of Cricket in India (BCCI) which
administers the game? According to insiders, a
SPECIAL REPORT/CRICKET/ Lodha Panel Recommendations
The Lodha panel has recommended drastic and
sweeping reforms to make BCCI more
transparent, accountable and effective. But will
our cricket bosses re-lay the pitch or resort to
half-hearted measures and cosmetic changes?
By Ajith Pillai
plan is afoot among some of its members to
ensure that a few key suggestions drawn up
by the Lodha panel are not implemented.
“You could call it damage control. Some of
the recommendations if implemented will
involve the complete reframing of BCCI’s
constitution and that may not be feasible.
There are several other sticking points which
are commercial in nature and some which
constitute changes in the eligibility of those
who qualify as board members. Bringing the
Board under the ambit of RTI is also seen as
a hurdle with every decision coming under
the scanner of vested interests. Sudden and
sweeping changes are not possible, although
some of the recommendations will be consid-
ered like the appointment of a full-time pro-
fessional CEO, setting up of a separate body
for IPL and legalizing betting,” a source in the
BCCI told India Legal.
The Committee’s recommendations are
TIME FOR
TOUGH
MEASURES
Justice RM
Lodha talking to
media after
submitting the
report to the
Supreme Court
Shaken,butWillTheyStir?
Getty Images
30 January 31, 2016

31. not legally binding on the BCCI although
there will be a hue and cry if they are rejected
outright. Also, as the panel is a high-powered
one headed by Justice RM Lodha, a former
CJI and comprising of two other retired apex
court judges, the Board cannot be dismissive.
A
s the Committee was appointed by the
highest court in the land, the BCCI will
have to respond to the suggestions in
court but will only have to act if directed by the
apex court.
The Board is uncomfortable with the fol-
lowing recommendations:
The Lodha Committee has suggested restri-
cting advertising slots during live telecast of
international matches. This would mean that
ad time can only be sold during drinks, lunch
and tea breaks or between innings. In effect,
there will be no ad breaks between overs as is
the practice internationally. Also, the panel
has suggested that the “entire space of the
screen during the broadcast will be dedicated
to the display of the game, save for a small
sponsor logo or sign”.
This, many in the Board feel, will severely
hit the economics of the game which is driven
by advertising. In turn, it would also impact
cricket fans. Not only will tickets cost more but
the current subscription for dedicated sports
channels which is `10 or less per month would
go up substantially as channels which pay
huge monies for telecast rights currently
recover it from ad profits.
Also, viewership during breaks is far less
than during the course of a game, so advertis-
ing rates would see a drop. “Our argument will
be that this will be detrimental to the game,”
says a Board official. The BCCI, the most cash
rich board among cricketing nations, has an
annual surplus of `385 crore and total assets
worth about `3,500 crore.
The panel has suggested a “one state one
association” formula to streamline function-
ing. But the Board is of the view that merging
well-established and historic associations like
those in Gujarat and Maharashtra will not be
good for the game. For example, the latter cur-
rently has two associations—Bombay and
Maharashtra—which have their Ranji teams
and individual allotment of Test matches and
other games. A merger would not help the
game grow in large states and reduce the num-
ber of Ranji teams and hence, games in the
domestic league.
The Board is not happy with the cooling off
period recommended for BCCI office bearers
between two terms. It may agree to the
“Sudden and
sweeping
changes are
not possible,
although
some of the
suggestions
will be
considered
like the
appointment of
a full-time
professional
CEO, setting
up of a
separate body
for IPL and
legalizing
betting,” a
source in the
BCCI told
India Legal.
WILL IT WORK?
The Lodha
Committee has
suggested
a separate
governing body
to manage IPL
UNI
INDIA LEGAL January 31, 2016 31

32. upper age limit of 70 years for office bearers
and limiting them to serving no more than
three terms. But many are uncomfortable with
the cooling off period. The panel had recom-
mended this to ensure that one person does
not continue in office uninterrupted for sever-
al years. There is also discomfort over barring
serving ministers and government servants on
the Board but there is a realization that object-
ing to this would invoke public anger.
Bringing the BCCI under the ambit of the
RTI Act is seen by many in the Board as a “ret-
rograde step” that would “impede the smooth
functioning of the Board”. But objections to it,
according to sources, may not be officially
voiced since nothing short of a legislation
passed by parliament can make the Board
accountable under the Act. Says a Board offi-
cial: “It is well-known that political parties
which have entrenched interests in the game
will not clear any such bill in parliament. In
the past, such a move put forward by Ajay
Maken, the former sports minister, was reject-
ed by the Manmohan Singh cabinet. The BJP
was also not for it.”
T
he BCCI has been claiming that it does
not come under the purview of the RTI
Act as it is registered as a society in
December 1928 under the Tamil Nadu
Societies Registration Act. Therefore, it should
not be treated as a public authority but a pri-
vate entity which is not funded by the govern-
ment. The Lodha panel, however, has a differ-
ent view on this. To quote its report: “The
Right to Information Act, 2005 (RTI Act)
enacts that public authorities shall make
known the particulars of the facilities available
to citizens. Having regard to the emphasis laid
by the Supreme Court that BCCI discharges
public functions and also the Court’s reference
to indirect approval of the Central and State
Governments in activities, which has created a
monopoly in the hands of the BCCI over crick-
et, the Committee feels that the people of the
country have a right to know details about the
BCCI’s functions and activities. It is therefore
recommended that the legislature must seri-
ously consider bringing BCCI within the
purview of the RTI Act.”
It has also recommended that the BCCI’s
website should provide details about the orga-
nization’s functioning with regular updates.
“...the Committee proposes that clear princi-
ples of transparency be laid down, and the
BCCI website and office will carry all rules,
regulations and office orders of the BCCI, the
constitution of the various committees, their
resolutions, the expenditures under various
heads, the reports of the Ombudsman/
Auditor/Electoral Officer/Ethics Officer and
the annual reports and balance sheets. In
addition, norms and procedures shall be laid
down for the engagement of service profes-
sionals and contractors, and there shall be full
transparency of all tenders floated and bids
invited by or on behalf of the BCCI.”
Such levels of transparency, many former
BCCI must come
under RTI. Its operations
must become transpar-
ent. Details of contracts
and tenders awarded by
BCCI must be in the
public domain.
One state, one associ-
ation and one person-
one post recommended.
No BCCI office-bearer
can continue for more
than three terms. There
must be a cooling off
period between the
two terms.
Age limit of 70 years
must be fixed for posts
and no office-bearer can
be a serving minister or
government servant.
Board president cannot
hold the post for more
than two years.
Legalize betting.
Set up a steering com-
mittee headed by former
home secretary GK Pillai
with Mohinder Amarnath,
Diana Eduljee and Anil
Kumble as members.
Establish separate gov-
erning bodies for the IPL
and BCCI.
Far-Reachingmove
Key recommendations of
the Lodha Committee:
SPECIAL REPORT/CRICKET/ Lodha Panel Recommendations
EXPERT OPINION
Some of the former
cricketers the Lodha
Committee spoke to included
Rahul Dravid, Saurav
Ganguly, VVS Laxman and
Sachin Tendulkar
32 January 31, 2016

33. IL
players believe, would cleanse the game but
would severely cramp the arbitrary style of the
Board’s functioning. Notes an ex-cricketer:
“The era of opaque awarding of contracts and
the kickbacks it brings will end. Only those
interested in the game for its sake will now be
attracted. But will the recommendations be
implemented? I understand a few of them will
be implemented half-heartedly unless, of
course, the Board is pushed by the court.”
T
he cricketing community has been
largely silent on the recommendations.
It’s only the ubiquitous and rather vocal
former Test captain, Bishan Singh Bedi, who
has made his views known plainly. He tweeted
his reaction: “Justice Lodha & his team must b
complimented fr exhaustive document on
Indn Crkt..now how it’s implemented remains
2 b seen..!” and “Indn brain can’t b taken light-
ly-it’s known 2 find loopholes not plug ’em!
Let’s wait fr BCCI’s reply! Fr now many rats’ll
hide understandably.”
Three former Test cricketers contacted by
India Legal refused to comment. Reason: they
had appeared before the Lodha Committee
and had said what they wished to say before it.
One of them said that they would rather com-
ment once they became aware of BCCI’s
response. “We can’t afford to rub the Board the
wrong way, so we have decided to refrain from
saying anything at this point. What we have
said figures in the panel’s report,” one of them
said. One can understand their reluctance to
speak considering that most of them look for
opportunities to work with the BCCI as coach-
es, commentators and advisers.
Incidentally, the Lodha Committee met 74
persons associated with the game—players,
journalists, administrators, commentators, etc
—in six cities before making its recommenda-
tions. Among the cricketers it interviewed
were the likes of Saurav Ganguly, VVS
Laxman, Sachin Tendulkar, Rahul Dravid,
Kapil Dev, Bishan Singh Bedi and Kirti Azad.
Even non-Test players from smaller centers
were included in its ambit.
Meanwhile, BCCI general-secretary and
BJP MP Anurag Thakur has dashed off an
email to state cricket associations to study the
Lodha Committee report and send their feed-
back by the end of the month: “It is advised
that you convene a meeting of your Managing
Committee/Board before the 31st of January,
2016 and discuss the implications of the rec-
ommendations made by the Justice Lodha
Committee. As some of the recommendations
have far reaching consequences, it may be
advisable to seek an expert opinion as to how
the same would affect your Association,”
Thakur wrote.
While the sweeping changes suggested by
the panel have no doubt rattled the BCCI, the
big question is how much of it will be imple-
mented. One will have to wait for an Action
Taken Report by the Board before any realistic
impact assessment can be made. But that will
not happen overnight.
NEED FOR
TRANSPARENCY?
Selection committee
chairman Sandeep Patil
(second right), Secretary
Anurag Thakur (first right)
and Skipper M S Dhoni
deciding the Indian team for
the series against South
Africa last year
Photos: UNI
INDIA LEGAL January 31, 2016 33

34. shown no tangible progress. No fresh arrests
have been made. Over 2,200 accused, includ-
ing impersonators, bogus candidates, job
aspirants, middlemen, politicians and bur-
eaucrats are in jail. More than 400 suspects
are still absconding.
The only headway that the CBI has made
so far in this case was on September 24 when
40 searches were carried out in MP and UP,
including on the premises of former techni-
cal education minister Laxmikant Sharma
and officials of the Madhya Pradesh Profess-
ional Examination Board. Nothing substan-
tial was found, though the CBI traced phone
call details of some of the key accused. It
refused to divulge the details.
Till now, the CBI has taken
over 150 cases of rigging in admis-
sion and recruitments from the
STF, besides registering 18 pre-
liminary inquiries into some 40
Vyapam-related deaths. Of these,
the CBI picked up only the myste-
rious death of medical student
Nam-rata Damor for further
investigation and registered a
murder case against unidentified
accused. However, what led to a
national furore was four deaths
within three days in June of those
related to the scam (see box).
DEEP-SEATED ROT
The scam had unravelled with the
arrest of 20 impersonators in the
pre-medical test in Indore in July
2013. Arrests followed in quick
succession as it transpired that
W
HEN Madhya Pradesh
goes to the assembly elec-
tion in late 2018, the
Vyapam scam might not
be bedevilling the ruling
BJP and its chief minister, Shivraj Singh
Chouhan. He could well say the CBI is still
probing the scam and the opposition should
wait for its outcome.
While this is a hypothetical scenario, the
tardy pace of investigation makes this quite
possible. Over five months have elapsed since
the Supreme Court ordered the CBI to take
over the probe into the job-cum-admission
rigging from the MP government-controlled
Special Task Force (STF). But the CBI has
INVESTIGATION/Vyapam Scam
Though the CBI is investigating the Vyapam scam in Madhya Pradesh,
nothing much has come out of it due to severe staff shortage in the
premier investigating agency By Rakesh Dixit
ReachingaDeadEnd?
Photos: Anil Shakya
POLITICAL
FIELD DAY
Congress workers
target MP Chief
Minister Shivraj Singh
Chouhan during a
demonstration in New
Delhi on the issue of
Vyapam scam
34 January 31, 2016

35. IL
sal task of investigating 107 cases pertaining to
alleged corruption and nearly 50 cases per-
taining to the suspected deaths related to
Vyapam scam having more than 2,000 accu-
sed cannot be met with the existing manpower
and infrastructure of CBI.” It sought sanction
of 496 posts to probe the scam, including 108
constables, 36 head constables, 18 assistant
sub-inspectors, 36 inspectors, 63 inspectors,
18 DSPs, 9 ASPs, 9 SPs and three DIGs. This
would entail a recurring expenditure of
around `24.07 crore and a non-recurring one
of around `55 crore.
Devpreet Singh says the CBI’s demand for
setting up a special branch for the scam has
been notified. This will enable investigating
officers to avail of housing facility in Bhopal
and other places in MP. The CBI is now look-
ing for officers across its branches to work on
the scam. This exercise is likely to take a long
time and till then, investigation will be slow, if
not stop altogether.
Deadly
Trail Medical student
Namrata Damor
whose body was
found on a
railway track near
Ujjain in January
2012
Those found
dead in the
Vyapam scam
include...
TV journalist Akshay
Singh who died myste-
riously in Jhabua where
he had gone to inter-
view Damor’s parents
on June 29, 2015 A day before, Narendra
Singh Tomar, a veterinary
surgeon, died in Indore
jail while another
accused, Dr Rajendra
Arya, died in a Gwalior
hospital
A day after Akshay’s death,
Jabalpur medical college
dean Dr Arun Kumar was
found dead in a Delhi
guesthouse
not only admissions to medical colleges but
also all recruitment tests conducted by the
professional examination board or its Hindi
abbreviation, Vyapam, were rigged.
With the CBI taking over the Vyapam
probe, the opposition and whistleblowers in
the scam had hoped that Chouhan’s days in
office would be numbered. Their hope ste-
mmed from the widely-held belief that Prime
Minister Narendra Modi considers Chouhan
a potential rival in the BJP. They had hoped
the CBI probe into Vyapam would provide
Modi a good opportunity to cut the CM to
size. However, Congress leaders feel that
Modi is not likely to destabilize any BJP CM
on corruption at this moment.
Whistle-blower Prashant Pandey had
given an incriminating hard disc to Digvijaya
Singh which was sent to a forensic lab in
Hyderabad. But despite two months having
elapsed, the report hasn’t come out. “I am
optimistic that the CBI will take the probe to
its logical conclusion,” says Pandey. CBI spo-
kesman Devpreet Singh assures that action
will be taken against those who are found to
have tampered with evidence.
DISAPPOINTING CBI
Other whistleblowers share the Congress’ pes-
simism. Whistle-blower Ashish Chatur-vedi
says the CBI has been disappointing as it
didn’t interrogate the high and mighty accu-
sed in the case. Another whistle-blower, Ajay
Dubey, says the CBI has only strengthened the
perception that it doesn’t work indepen-dent-
ly. “It seems to be going the STF way,”
he says.
However, in a report submitted to the
Supreme Court, the CBI had said: “The colos-
SWANKY OFFICE,
SLUGGISH PACE
CBI headquarters in
New Delhi
INDIA LEGAL January 31, 2016 35

36. INTERVIEW/Olga Tellis
Recently, Justice Markandey Katju men-
tioned your PIL in a tweet. The PIL was
the turning point in slum demolition.
What prompted you to file it, considering
that few journalists have gone beyond
their line of duty, which is reporting?
In 1980, then Maharashtra chief minister AR
Antulay announced at a press conference
that the state government had approved the
demolition drive that was to be undertaken
by the Brihanmumbai Municipal
Corporation. I was a senior journalist then
and questioned Antulay on the efficacy of the
action as I realized that the government was
not going to stand by the poor and would
demolish their slums. A human rights group
had filed a case to stop the demolition, say-
ing the poor had no scope to move out in the
rains. The right to housing was only a
Directive Principle and not a basic funda-
mental right.
In the biting cold of December, the Railways undertook a demolition drive in Delhi,
resulting in the death of a baby. When this case came up for hearing in the Supreme Court,
Justice Markandey Katju tweeted about a landmark PIL filed by senior journalist
OLGA TELLIS in 1981, wherein the SC said that those living on the streets should be given
alternate accommodation before undertaking a demolition drive. Moreover, prior notice
should be issued to the slum dwellers. In an interview with NEETA KOLHATKAR, Tellis
says the poor get no justice in India and while we are a politically democratic country, we
have miles to go before achieving economic democracy. Excerpts:
“Rules Are There
Only for the Poor”
36 January 31, 2016

37. However, Justice B Lentin ordered
a stop to the demolition in the
monsoons. I was quite disturbed
that it was stalled only in the mon-
soons and spoke to human rights
groups and lawyers who said there
was no way out.
My contention was that the poor
were mostly from rural areas and had
migrated to cities due to the failure
of the government’s policies, lack of
employment opportunities and abject
poverty. It is primarily for economic
reasons that they are forced to live
on the streets.
I was part of a group that used to
meet every night and discussed vari-
ous issues and problems. Around this
time, Justice Bhagwati had just initi-
ated a PIL in the Supreme Court for
filing cases by independent citizens
and he had encouraged the public to
use it effectively for larger issues. I
sent a letter urging him to look into
the economic compulsions of the
rural poor and this being the main
reason for them to live on the streets.
I always wanted this letter to be an
economic document. It had to be
based on economic understanding;
only then would the courts under-
stand the compulsions and ramifica-
tions of this issue.
I sent my letter to the Supreme
Court, which was converted into a
PIL. I spoke to senior lawyer Indira
Jaising and she said she would fight
the case. That is how the compulsion
for providing alternate housing
before a demolition and later, provid-
ing it free to the poor in
Maharashtra, came into being.
We see the impact of this PIL even
today as the poor on the streets of
Mumbai have been granted free
housing. Did you anticipate such an
impact?
This judgment widened the scope of
the rights of the poor to providing the
right to quality of life. This then
widened the scope of Article 14 of the
constitution. It is not just about halting
a demolition. One needs to understand
the abject poverty of these people. They
come with absolutely nothing to these
streets. And the slums have inhuman
conditions. Safety, hunger, loss of
livelihood…so many issues are inter-
connected. Article 14 is about Equality
before Law—the state shall not deny to
any person equality before the law or
the equal protection of laws within the
territory of India. Equal protection
before law is important for people
across the strata.
One criticism is that your PIL went
beyond the duty of a reporter. Is
this activist journalism, which, in
fact, the media is turning to today?
I can’t be bothered about what a jour-
nalist is supposed to report. I don’t fol-
low any such rules of what I can or
should not do. I follow the Gita, which
clearly states that one should do one’s
work and do what is right. I did what I
felt was right and what was needed to
be done. I still follow this rule.
Recently, there was a demolition
in Delhi which resulted in the
death of a baby. We still see
slums being demolished either
INDIA LEGAL January 31, 2016 37
DIRE SITUATION
The scene after a
demolition drive by
the Railways in
New Delhi in
December
UNI

38. IL
by builders or agencies. Do we ever
learn from our lessons?
I feel that the poor in this country
never get justice. They are treated as
disposable commodities. What hap-
pened in Delhi is heart-wrenching.
Had the authorities been as sympathet-
ic to the poor as to the rich, our society
would have been different. So many
illegal flats, buildings and townships
without NOCs are legalized despite
court rulings. How are they allowed to
exist and function with all infrastruc-
ture? The rich and elite get away with
everything. We have no economic
democracy. We have only political
democracy. Sadly, there are no provi-
sions in our constitution to save the
poor. Rules are there for the poor and
none for the rich and elite.
The problem is politicians only
capitalize on such situations. We saw
Rahul Gandhi speak, but only after the
demolition. There are different ways
to earn political brownie points after
every such incident. Political parties
have their agenda and people need
to understand this. They need to rise
in protest.
Leading corporate lawyer Zia
Mody has used your case in her
book 10 Judgements That Changed
India. Your case is taught in law
colleges too. Do you feel proud that
you have made a difference?
If we look at this case, what was the
goal? We haven’t reached that goal.
Whether my case is being taught or
being mentioned in a book, doesn’t
matter because this is not the ultimate
goal of my case.
The basic issue remains, which is
that people living on the streets have to
be rehabilitated. At least Maharashtra
has a Slum Rehabilitation Authority
(SRA) and has come up with a plan to
give free housing to slum dwellers,
though this housing too is inhuman.
We then hear stories of this being con-
tested in court with the accusation that
many slum dwellers have sold out their
SRA flats. But is that an issue to be
contested? Almost all rich and elite are
doing it too. Almost all original owners
have been replaced by new occupants.
Why is this not challenged in courts?
We were promised all this would
change with Narendra Modi. But
whatever is happening is only at the
top as he has full control there. The
good thing is that Modi wants every-
thing online. I agree that once things
are online, corruption is reduced to
a large extent. Processes become
transparent. But for a complete
overhaul, we need the public to rise
and revolt. Then only will we see a
positive change.
INTERVIEW/Olga Tellis
UNEASY
COEXISTENCE
Slums and
high-rises exist
cheek-by-jowl in
Mumbai
JUSTICE PN BHAGWATI
This legal luminary had encouraged
the public to raise issues like the rights
of the poor in the early Eighties
JUSTICE MARKANDEY KATJU
When the Railways carried out the demoli-
tion in Delhi recently, he referred to the PIL
that Olga Tellis had filed in 1981,
AR ANTULAY
As Maharashtra CM, he
had approved the demolition drive by
Brihanmumbai Municipal Corporation
38 January 31, 2016

39. Sanjay Dutt to walk
free on Feb 27
Nearly 24 high courts have 43 percent vacan-
cies and only 599 judges as against the
sanctioned strength of 1,044. In this scenario,
the number of cases pending in the high courts
may spiral to a whopping 1 crore from the
present 45 lakh by the year-end. The Supreme
Court, too, has five vacancies and 60,000 cases
pending. With trial courts having 2.75 crore
pending cases, the total backlog of the judiciary
stands at 3.25 crore cases. Experts believe that
the disposal of cases has suffered as the process
for appointment of judges has come to a stand-
still for almost a year due to the controversy sur-
rounding the National Judicial Appointments
Commission. The collegium system is expected
to resume functioning only by February.
3.25 crore pending casesNew juvenile
law in force
Actor Sanjay Dutt, jailed
for possession of arms
in a case related to the 1993
Mumbai blasts, will be
released from Yerwada jail
in Pune on February 27,
nearly 103 days before the end of
his term, media reports have said.
The reprieve has been granted
on the grounds of good behaviour.
According to Maharashtra’s
home department officials, the deci-
sion to grant him remission was
taken by the jail superintendent
and the government had no role in
the matter. However, sources told
The Hindu that the decision was
cleared by Minister of State for
Home Ranjit Patil.
Meanwhile, a petition filed
in the Bombay High Court on
January 8 sought to restrain the
Maharashtra government from
releasing Dutt.
Pradeep Bhalekar, the petitioner,
has alleged that Dutt is being
favored while there are 27,740
other prisoners in the state who
deserve to be released on the
same ground.
Juveniles of 16 years of age
and above can now be
tried like adults if they com-
mit heinous offenses like
rape and murder as
President Pranab Mukherjee
has given his assent to the
Juvenile Justice (Care and
Protection of Children) Act,
2015. The lowering of the age
from the existing 18 years
means that those aged 16
and above will no longer
enjoy protection under the
Juvenile Justice law. Under
the juvenile law till now, even
those accused of heinous
offenses like rape could be
tried only by Juvenile Justice
Boards and, if found guilty,
could not be jailed for more
than three years.
The Delhi High Court has directed the
Delhi government to submit a status
report on the medical condition of for-
mer Indian National Lok Dal legislator
Ajay Chautala, who moved a petition
seeking his release on parole for 12 weeks
for medical treatment. Chautala is serv-
ing a 10-year sentence
in the 2000 teachers’ recruitment
scam case. His previous parole
application was rejected by the
order of the Delhi govern-
ment dated November
16. Chautala has sought
quashing of the order.
The Bombay High
Court has asked the
Indian Railways as to
why the sale of only one
brand of mineral water,
‘Rail Neer’, is permitted at
railway stations where
different brands and vari-
eties of food are available.
A division bench headed
by Justice NH Patil was
hearing a public interest
litigation by commuter
Lopesh Vora challenging
a circular issued by the
railway authorities last
year directing contractors
and caterers at railway
stations to stock and sell
only ‘Rail Neer’ packaged
drinking water supplied
by the Indian Railway
Catering and Tourism
Corporation. Vora has
claimed that a commuter
should have the right
to choose.
HC wants report on
Ajay Chautala’s health
“Why only
Rail Neer?”
NATIONAL BRIEFS
INDIA LEGAL January 31, 2016 39