India legal 11 December 2017

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Kerala conversions:
Love and religion
Tihar Jail: Exclusive
details on recent violence
HIGHCOST
OFJUSTICEWithlawyerschargingexorbitantfees
andfrivolousappealsleadingtodelays
incases,amajorityoflitigantsfindthat
theirsearchforjusticecanbeavery
expensiveone.Isthereawayout?

N a recent post, I ladled praise on the
Supreme Court for what I believed was a
bold decision in today’s prejudice-charged
Indian social milieu, allowing a Kerala
woman, Hadiya, to appear before three of
the nation’s most powerful judges and cry pierc-
ingly and clearly for her freedom.
For close to 11 months, she had been ordered
to remain closeted in her father’s custody—sepa-
rated from the Muslim man she loved and then
married. This followed a Kerala High Court
decision annulling the marriage, based on a case
filed by her father that her husband had forcibly
converted her to Islam and imprisoned her
in wedlock.
This practice goes by the name of “love
jihad”—the coercive tactic, according to
Hindutva and RSS activists, of Mohammedan
radicals inveigling Hindu girls to embrace Islam
and marry Muslims. There followed what is pos-
sibly the most extraordinary sequence of events
in Indian judicial history. On an appeal from
Hadiya’s husband contesting the right of the
High Court to send his spouse into exile, the
Supreme Court first referred the matter to the
National Investigation Agency (NIA), India’s
counter-subversion outfit which investigates ter-
ror groups such as the ISIS, and then decided to
call Hadiya to Delhi to testify on her own behalf.
Had she been coerced, intimidated, forced to
convert and shackled to a religious fundamen-
talist beast in holy matrimony?
Hadiya’s answers under direct questioning by
the judges were clear, concise, unwavering. All
resounding, ineluctable “no’s”. The Court struck
down part of the lower court’s decision. It direct-
ed her to complete her studies, freed her from
enforced paternal bondage, reinstalled her in a
women’s hostel. The “findings” of a purported
100-page NIA report could be studied at a
later date.
But much of what that report presumably
contains had already been leaked. And some of
the readers of my earlier post were disturbed
that the Court, during the proceedings, referred
to the “Stockholm Syndrome”, a preposterous
theory spun by the NIA in order to justify Ha-
diya’s continued confinement. This Syndrome
theory suggests that “victims” like Hadiya are
fatally indoctrinated by their captors to the
extent that they will not only fall in love with
their tormentors, but also support their nefari-
ous causes and refuse to testify against their own
torture and suffering even when freed.
This is what the NIA and Hadiya’s father
had sought to portray—that she was the captive
not of her enforced custody with her father
but rather the indoctrinated, brainwashed, psy-
chopathic victim of the husband and the
Islamic radicals.
W
orldwide, this theory gained currency
in the infamous criminal case of Patty
Hearst, the white American heiress of
the multi-billion-dollar Hearst media empire. In
1974, she was kidnapped by an armed, violent
left-wing group. Three years later, the world was
stunned to see photographs of her splashed
across newspapers. She was holding a gun, help-
ing the same goons robbing a bank. Her defend-
ers, during the trial in which she was convicted
for seven years, viewed her as a casualty of the
Stockholm Syndrome—a phrase invented just
two years before her capture, when some Swe-
dish bank workers who were held captive for a
week had actually begun to take the side of
their subjugators.
The theory seemed fashionable for a while,
but there are no real takers for it now, and the
US courts did not fall for it. As one expert com-
mentator put it: “Not everyone agrees that the
Stockholm Syndrome is real. There are no stan-
dard criteria by which to identify the disorder; it
isn’t included in psychiatry’s main diagnostic
manual. Critics insist it’s largely a figment of the
media’s imagination.”
AN INDIGNANT WOMAN
THEY COULD NOT SILENCE
Inderjit Badhwar
Letter from the Editor
I
4 December 11, 2017

| INDIA LEGAL | December 11, 2017 5
In an authoritative article on the subject,
“Why Stockholm Syndrome Could Be A Total
Myth”, Erin Fuchs, one of the world’s top legal
journalists, quotes Emory University clinical psy-
chologist Nadine Kaslow: “There is very little
evidence to sort of validate that Stockholm
Syndrome exists. It is mostly talked about in
the media.”
In her iconic piece, “The Myth of Stockholm
Syndrome and how it was invented to silence an
indignant young woman”, activist-author Bar-
bara Roberts spoke at length to Dr Allan Wade
of the Centre for Response-Based Practice. Wade
was the first psychiatrist to interview one of the
Stockholm hostages, Kristin Enmark, and pres-
ent original source material to develop a quite
different and contextual view of the hostage-tak-
ing and the notion of the Stockholm Syndrome.
I
n an introduction to Dr Wade’s presentation
on the subject, Roberts writes: “He (shows)
how Kristin prudently and courageously
resisted the violence of the hostage takers, pro-
tected and kept solidarity with other hostages,
worked through a disorganised response from
authorities, preserved and reasserted her basic
human dignity, and carefully managed a highly
fluid situation.”
From this analysis, Dr Wade showed how the
Stockholm Syndrome and related ideas such as
“traumatic bonding”, “learned helplessness”, “bat-
tered women’s syndrome”, “internalised oppres-
sion”, and “identification with the aggressor/opp-
ressor” shift the focus away from actual events in
context to invented pathologies in the minds of
victims, particularly women.
Writes Roberts: “This is new stuff for us all.
Many of us have heard about the Stockholm
Syndrome and received it as ‘truth’, unthinkingly.
Some of us may have felt it helped us understand
a little bit more of the perplexing experience of
abuse. But it’s really interesting to find that the
term ‘Stockholm Syndrome’ was invented by a
psychologist who didn’t even interview the
woman it was supposed to describe!”
As Roberts rightly says, let us really chew the
cud on this:
The term Stockholm Syndrome is a myth
invented to discredit women victims of violence.
It not only discredits them, it obscures their
prudent and courageous resistance to violence.
It shifts the focus away from actual events in
context, to invented pathologies in the minds of
victims, particularly women.
The Stockholm Syndrome can be seen as one
of the many concepts used to silence individuals
who, as victims, speak publicly about negative
social (i.e., institutional) responses.
The same applies to related ideas such as
“traumatic bonding”, “learned helplessness”,
“battered women’s syndrome”, “internalised
oppression”, and “identification with the aggres-
sor/oppressor”.
These bullet points could well be about
Hadiya.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Inanarticleonthesubject,“WhyStockholmSyndromeCouldBeATotalMyth”,
ErinFuchs(above),atoplegaljournalist,quotesEmoryUniversityclinical
psychologistNadineKaslow:“Thereisverylittleevidencetosortofvalidate
thatStockholmSyndromeexists.It ismostlytalkedaboutinthemedia.”
Erin Fuchs/Facebook

ContentsVOLUME XI ISSUE 4
DECEMBER11,2017
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6 December 11, 2017
High Cost of Justice
With lawyers charging exorbitant fees
and frivolous appeals delaying cases
routinely, the search for justice is a
costly one. Is there a way out
for litigants?
LEAD
12
Final Authority
The Delhi High Court has held that the RTI Act is not above apex court rules when
it comes to dissemination of information
COURTS
22
Laudable Move
In a judgment that has
kindled hope of freedom
among undertrials, a
bench has struck down
Section 45(1) of the
Prevention of Money
Laundering Act
20
SUPREMECOURT

Not on the Same Page
REGULARS
Followuson
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs .........19, 33
International Briefs..........47
Media Watch ..................48
Satire ..............................50
Cover Illustration & Design:
ANTHONY LAWRENCE
The Superhighway Robbers
The Trump Administration’s plan to block open access to the internet demon-
strates its policy of favouring big business at the cost of the working class
36
In an attempt to stem this horrendous crime, the Madhya Pradesh cabinet has
come out with a legislative proposal to award capital punishment to convicts
42Death for Child Rape
TRAI Is
Wise
Considering that India
has no laws on net neu-
trality, its recommenda-
tions, if implemented, will
ensure that no internet
user is discriminated
against on any ground
FOCUS
34
STATES
No More in Z+ Club
An assessment by the home ministry has led to RJD supremo
Lalu Prasad Yadav’s cover being whittled down to Z category
NATIONALSECURITY
32
Violence in
Tihar
The brutal beating of some
prisoners in the high-security
jail by the prison police has
opened a can of worms. Who
were these convicts and what
was the provocation?
24
SPOTLIGHT
Judicial Maverick
Madras High Court judge N Kirubakaran has often sparked
debate with his unconventional judgments and remarks
28
PROFILE
Beijing’s initiative to mediate between
Yangon and Dhaka in planning the return
of the Rohingyas to Rakhine state
indicates its desire to take on a bigger
diplomatic role as a global power
44Dragon’s
Peacemaker Act
GLOBALTRENDS
As more cases emerge from Kerala of girls converting to Islam, the views of the state
high court and the Supreme Court on the issue are at divergence
SOCIETY
40

8 December 11, 2017
“
RINGSIDE
"Suno Modi, Lalu darne wala insaan nahin hai.
Kisi aur ko darao, jaise Nitish ko daraya. Bihar
ki 11 crore janta aur baccha-baccha mera rak-
shak hai. (Listen Modi, Lalu is not one to be
intimidated. Intimidate someone else, like you
intimidated (Bihar CM) Nitish. Bihar's 11 crore
people and its every child is my protector)."
—RJD chief Lalu Yadav after the central government scaled
down his security cover from Z+ to Z
“With a third class
engineering degree, all
I could have become
was a politician, and
that would have been
unacceptable.”
—Former India cap-
tain Bishen Singh Bedi
at the Times Litfest
Delhi 2017
“Every day someone is say-
ing my national pride or
my Rajasthan pride or my
Bengal pride is wounded. I
just want to know why
your pride is so fragile that
anyone can hurt it so easily.
If someone says Rabindra-
nath Tagore does not
write well. Fine, it’s his or
her personal opinion. Why
should I take an offence
on it?”
—Filmmaker and actor
Aparna Sen on the protests
against Padmavati
“They asked for photo-
graphs and videos
showing evidence of
the surgical strike. Did
my Army go there to
shoot a film the way
you videograph your-
self having food at a
poor’s house?”
—PM Modi, referring to
the opposition attack on
the surgical strikes
launched by his govern-
ment in Pakistan
“It indicates that per-
haps the impact of two
very significant struc-
tural reforms—demon-
etisation and GST—is
behind us and hopeful-
ly in coming quarters
we can look for an
upwards trajectory.”
—Finance Minister
Arun Jaitley, on the
rebound in GDP growth
in the past quarter
“Hum aur Musalman, dono
ek he vanshaj ke hain.
Yahan ka koi Musalman
Babur ka aulaad nahin
hai. Yahan ka Musalman jo
hai Ram ka aulaad hai...
(We (Hindus) and Muslims
are from the same lineage.
Here, no Muslim is a child
of (Mughal emperor) Ba-
bur. The Muslim here is a
child of Ram...”
—Minister of State Giriraj
Singh, asking Muslims to
help in building the Ram
Temple in Ayodhya
“Together India and
US have made new
discoveries. Both
nations have gone to
Mars. Values of open-
ness and rule of law,
freedom of speech—
India and US have so
much in common.
Indian and US consti-
tutions begin with the
same three words, ‘We
the People’.”
—Former US president
Barack Obama, while
addressing the Hindus-
tan Times Leadership
Summit in Delhi

The international arbitration process involving
the Vodafone Group’s legal battle against the
Indian government for the tax demand of
`11,000 crore has taken a curious turn. The
NDA government had diluted the earlier rigid
stand on the retrospective tax issue to calm
global investors. Vodafone had plumped for
international arbitration in Holland and then
the UK. Now the government has proposed
the name of a senior advocate as arbitrator.
Prior to 2014, Vodafone was represented by
Arun Jaitley wearing his advocate’s
gown. Now, as finance minister,
he is deciding on the strategy in
the government’s legal battle
with Vodafone, including the
fact that he has a say in
the choice of the arbi-
trator, albeit to be
cleared by the PMO.
The aces in Gujarat’s
upcoming election may be
Narendra Modi, Rahul
Gandhi and Amit Shah but
there are three kings who
could play a pivotal role in
helping the Congress make
a dent in the BJP’s citadel.
Hardik Patel (left) has gal-
vanised the powerful Patidar
community, Alpesh Thakore
(centre) is drawing impres-
sive crowds for his OBC
bandwagon (the OBCs
count for 54 percent of
Gujarat’s population) which
he has hitched to the
Congress while Dalit activist
Jignesh Mewani has rallied
the community behind his
anti-BJP plank. The caste-
religion interplay is key to the
state’s voting history. The
three young next-gen lead-
ers have created a new
caste matrix which has
replaced old discredited
lodestars like the Samajwadi
Party and Mayawati’s
Bahujan Samaj Party. All
three have been attracting
large crowds so it will be
interesting to see what
impact the trio’s combined
attacks on the BJP, and
their affiliation with the
Congress, have on the even-
tual outcome.
An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
A ROYAL AFFAIR
The Indian government seems to have
pulled out all stops to ensure that
Ivanka Trump’s Hyderabad sojourn
was a success and that she goes back
with glowing reports for her father.
Hyderabad has never looked so clean
and welcoming thanks to the massive
drive that removed all dogs, stray cows
and beggars from the streets leading
to the venue, her hotel and the
Falaknuma Palace. The government
even flew in the Indian ambassador to the
US, Navtej Sarna, who has just been given a
year’s extension, to greet her on arrival at the
airport. Ambassadors are only brought back
when a head of state from the country they
are posted in, is visiting India. Ivanka’s official
position is adviser to the US President who
happens to be her dad. The elaborate wel-
come, the hospitality, the security protocol
are all normally given to the head of an
important state, and Prime Minister Narendra
Modi playing attentive host suggests that the
way to the President’s heart may be through
his favourite daughter.
GUJARAT’S THREE KINGS
CONFLICT OF INTEREST
Ajeya Singh was the US-edu-
cated son of former Prime
Minister VP Singh whom the
Congress tried to implicate
unsuccessfully in the St Kitts
scam in the 1990s. But political
rivalries, including current
ones, were apparently thrown
to the winds, seeing all the
VIPs who attended the wed-
ding reception of his daughter
in Lutyens’ Delhi. Singh, the
Raja of Manda, invited over
1,000 people, including Vice-
President Venkaiah Naidu
(there were some who swore
they saw Narendra Modi but no
one confirms it though Modi’s
top political IAS aide, PK
Mishra, was there), Union min-
isters Rajnath Singh, Arun
Jaitley, Vijay Goel, Ram Vilas
Paswan, Suresh Prabhu,
Piyush Goyal and Dharmendra
Pradhan. Other VIPs included
former PM Manmohan Singh,
Rajiv Shukla, Naresh Gujral,
Amar Singh, Sanjay Singh,
Pawan Verma, Hardip Puri,
Jyotiraditya Scindia, Jitin
Prasada, Shashi Tharoor and
KTS Tulsi. Foreign bigshots
attending were Prime Minister
of Sri Lanka Ranil Wickreme-
singhe and his wife, Maithree,
and the Sri Lankan Minister of
Law and Justice. It was a feast
fit for kings considering that the
groom is the son of BJD Rajya
Sabha member AU Singh Deo,
erstwhile Maha-raja of Bolangir,
a friend and Doon School
buddy of Odisha CM Naveen
Patnaik. The haute cuisine
included exotic dishes like
goose liver pate, nihari gosht,
and duck curry.
PRINCESS DIARIES

The centre, through a Special Leave
Petition, questioned a high court’s verdict
commuting the death sentence of a convict-
ed person to life imprisonment. The death
sentence was upheld by the Supreme Court
and even approved by the governor and the
president of India.
The case relates to Sonu Sardar, who
was held guilty and awarded capital punish-
ment in 2008 for killing five members of a
family in Chhattisgarh in November 2004.
Later the apex court upheld the verdict.
Sonu’s mercy petitions to the Chhattisgarh
governor and the President were rejected.
Sonu approached the Delhi High Court in
2015, challenging the decision of the gover-
nor and the president. He pleaded that the
death sentence be scaled down to life impris-
onment. A division bench commuted the
death sentence to life imprisonment in
June 2017.
The centre asked the apex court if the
High Court under Article 226 has the powers
to review the decision of the president under
Article 72 and pointed out that only the apex
court can consider such a plea and is the
final judicial authority to decide such a plea.
The apex court thereafter issued notice.
The Chief Justice of India, Dipak Misra,
agreed to take a positive call on constitut-
ing a constitution bench to adjudicate all peti-
tions challenging Aadhaar linkage to
several services. Many of these
are pending before the top court
and in all likelihood will be
taken up this week.
The Court’s indication
came after Attorney General
KK Venugopal and senior advocate Shyam
Divan requested the CJI that the petitions
be heard as soon as possible by a constitu-
tion bench.
The centre’s notification to link bank
accounts and mobile phones with Aadhaar
by December 31, 2017, and February
6, 2018, respectively, has been
severely objected to on the
ground that it is a breach of the
Right to Privacy. The Court has
already declared Right to
Privacy a fundamental right.
Courts
10 December 11, 2017
Constitution bench may
hear Aadhaar pleas
The Supreme Court did
not accept a plea from a
37-year-old woman from
Bengaluru for a DNA test,
which she said would prove
that she is the biological
daughter of former Tamil
Nadu chief minister J Jaya-
lalithaa. She wanted Jaya-
lalithaa’s body to be ex-
humed for the DNA test. The
top court asked her to ex-
plore other legal avenues
for redressal.
Introduced as Amrutha,
the petitioner claimed that
she was adopted and bro-
ught up by the late chief
minister’s sister and her
husband. There were even
witnesses to buttress her
claim, she pleaded. She
referred to Article 21 of the
Constitution, saying that she
had the right to be aware of
her identity through her “nat-
ural/biological mother”.
Plea for DNA test on Jaya rejected
—Compiled by Prabir Biswas
Life and property
loss in protests
unbearable: SC
Can high
courts
overrule
president’s
orders?
Those involved in mob violence
that leads to loss of life and
public property can’t be spared
and the centre must come up
with a stringent law and mecha-
nism to ensure that those respon-
sible pay for their deeds, the
Supreme Court observed. The
Court was not happy that its
guidelines on the issue had not
been followed by the centre.
The Court was of the view
that the district courts must be
armed with the responsibility to
prosecute such people and
decide on the compensation they
should pay in such cases. It
pointed out that there was a dire
need for a law to “provide reme-
dy” and “a forum to hear such
cases”. All agitations must be
captured in video to find out who
were behind the eruption of vio-
lence, it said.
The Court was hearing a peti-
tion by advocate Koshy Jacob
who wanted SC guidelines to be
implemented soon. The Court
disposed of the petition, but after
getting the centre’s assurance
that it was acting in accordance
with the laid-down objectives.

Lead/ Litigation Expenses
HE “burden’’ that the
president talked about
may be to do with our col-
lective conscience but it is
also the financial one that
a majority of litigants has
to bear when they find themselves
entering India’s complex judicial system.
Kovind should know: he was a practis-
ing lawyer until 1993 before he got into
politics. It is quite ironical, literally a
travesty of justice, that a poor country
like India is saddled with such an ex-
pensive legal system. Much of that is to
do with the fees that lawyers charge.
Law Commission Chairman BS
Chauhan, speaking at a
seminar last September,
said: “I retired as a Supreme
Court judge. If I have a case,
I cannot afford them
(lawyers). They are so
expensive nowadays and
they charge per hour, per day,
like taxis.”
Last July when celebrity lawyer Ram
Jethmalani and his client, Delhi Chief
Minister Arvind Kejriwal, had a falling
out, he quit as counsel and promptly
sent his client a bill of `3.5 crore which,
he said, was a reduction of his normal
legal fees. “I have given a discount, I
have not asked for the retainer fee I nor-
mally charge my other clients,’’ he said.
Jethmalani had originally offered to
appear virtually pro bono but once
lawyer and client differed on the case
being heard in the Supreme Court, he
changed his mind and presented a bill
which included `22 lakh per appearance
in court. This, he declared magnani-
mously, was also minus what he would
charge for client conferences.
He, along with Harish Salve and Fali
Nariman, occupy the top spots when it
comes to fees charged but there are a
host of other legal eagles who charge
between `5 lakh and `15 lakh an appea-
rance (see box 1). The costs vary from
client to client. If the client is in
Mumbai, a Delhi lawyer like Salve or
Mukul Rohatgi will charge for business
class air travel, stay in a prominent five-
star hotel along with their team, and bill
for meals and local transport and con-
ference or consultation fees, even if the
consultation is over the phone. A hand-
ful of senior advocates also charge some-
thing called “clerkage” which is 10 per-
cent of the total professional fee.
Therefore, if the appearance fee is `5
lakh, the bill will be for `5.5 lakh.
Nobody knows whether it goes to clerks,
is used for office expenses or spent on a
T
“India has acquired a reputation of
an expensive legal system. In part,
this is because of delays but there is
also a question of affordability of
fees. The idea is that a relatively
poor person cannot reach the doors
of justice for a fair hearing only
because of financial or similar
constraints while it’s in our
constitutional values and republic
ethics. It is a burden on our collective
conscience.’’
—President Ram Nath Kovind, on
November 25, National Law Day
Withlawyerschargingexorbitantfeesandfrivolousappeals
delayingcasesroutinely,amajorityoflitigants
findthattheirquestforjusticecanbeavery
expensiveone.Isthereawayout?
By Usha Rani Das
High Cost
of Justice
Illustration: Anthony Lawrence

fancy five-star family lunch.
While corporate and affluent clients
can afford to spend between `2 and `3
crore on a case, a majority clearly can-
not. A survey conducted by Daksh, a
civil society organisation, revealed that
90 percent of the litigants earn less than
`3 lakh per annum. The study, done
in 2015-16, found that civil liti-
gants spent an average of `497 per
day to attend court and incurred a
loss of `844 per day on
account of
wages and
work time lost while appearing in
court—totalling `1,341 for every day
spent in court. In criminal cases, the liti-
gant spent `542 per day to attend court
and lost `902 per day due to loss of pay
and business income, adding up to
`1,444. In a broader perspective, he/she
loses wages totalling `50,000 crore a
year at an average of `1,746 per case per
day for attending lower court hearings.
After adding the lawyer’s fees, the liti-
gant’s expenses cross `80,000 crore
annually, which is 0.70 percent of
India’s GDP (in 2015-16).
For many at the lower end of the
socio-economic scale, it is a burden that
becomes unbearable. Jyoti’s husband
earns about `6,000 per month. She, her
husband and their two sons travel for
2.5 hours every week to come to the
Delhi District Legal Services Authority
(DDLSA) to seek a lawyer. They are
fighting a property dispute case. It has
been three months now since they
approached the DDLSA but they haven’t
got a lawyer yet. “We spend `400 every
week to travel from our village to Delhi.
My husband is a daily wage earner. He
loses one day’s income for coming here,”
she said.
E
ven when the services of a lawyer
are obtained, the problems just
keep mounting. It took Rajender
Singh more than a decade to finally get
justice in his case against the Lt Gover-
nor of the Andaman and Nicobar Is-
lands. Singh was a lecturer and had filed
an application for regularisation of his
service in 1987. The tribunal at the
Calcutta High Court had asked him to
complete his MPhil degree and granted
him study leave for a period of three
years. Though he completed his degree,
he was not granted the position by the
university. He was asked to approach
the tribunal several times unnecessarily.
Following this, he was “harassed” by the
Union Public Service Commission
(UPSC), his university authorities and
government officials for years before
the Court finally provided him relief
in 2005.
There are many Singhs in India who
struggle for years to get justice. Some
fight the case for years, even decades,
some lose hope and give up while most
don’t even think of coming to court to
settle their issues. Expensive litigation,
exorbitant lawyer fees coupled with an
almost non-existent legal aid system
have made one of the world’s strongest
judiciary systems inaccessible to the
common man. As senior advocate
Rajeev Dhavan told India Legal: “It
(legal system) is for the middle class
and the people who can pull together
the money.”
The Supreme Court is well aware of
the problem. In Vinod Seth vs Devinder
Bajaj, the apex court had observed:
“Under no circumstances, costs should
be a deterrent to a citizen with a gen-
uine or bona fide claim, or to any person
belonging to the weaker sections whose
rights have been affected, from app-
roaching the courts.” That judgment was
seven years ago and since then the costs
have only gone up. As Chauhan said:
“IretiredasaSupremeCourt
judge.IfIhaveacase,Icannot
affordlawyers.Theyareso
expensivenowandchargeper
hour,perday,liketaxis.”
BSChauhan,chairman,
LawCommission
“Justiceischeap,lawyers
areexpensive.Thelegal
systemisforthemiddle
classandthepeoplewho
canpulltogetherthemoney.”
RajeevDhavan,
senioradvocate

“Big lawyers can defend any kind of
greatest offence.” A “big lawyer” charges
anywhere between `2 lakh per hearing
and `20 lakh, according to estimates.
While Fali S Nariman charges `10-15
lakh per appearance in the Supreme
Court, Shyam Divan charges almost `3.5
lakh. KK Venugopal mostly does pro
bono cases but also charges `2.5 lakh
per hearing.
A
ccording to a 2015 Mint report,
Jethmalani is one of the highest
paid lawyers in India at the
Supreme Court, who charges at least
`25 lakh per hearing. Former finance
minister P Chidambaram charges in the
range of `6-7 lakh for one appearance
before a bench of the Supreme Court.
Former law minister Kapil Sibal charges
up to `15 lakh for one appearance at
the Supreme Court. Congress politician
Abhishek Manu Singhvi, Harish
Salve, Gopal Subramanium, KTS
Tulsi, Dushyant Dave, Jayant Bhushan
also fall in the “big and expensive”
lawyers bracket.
If a senior counsel appears outside
Delhi, the fee sees a steep rise as the
bills for business class or chartered
flights and hotel accommodation be-
come an important addition to the fee.
Besides, though the litigant pays for the
senior counsel to appear in court and
fight the case, there is little he/she can
do to ensure that the counsel does so.
The system, however, is equally
responsible. Dhavan said: “We have to
see it at three levels—subordinate
courts, high courts and the Supreme
Court. They say justice is cheap but civil
justice requires a court fee. So, justice is
cheap, lawyers are expensive. At the
local level, many people cannot afford
lawyers. They give up their cases. They
take on lawyers who are generally not
quite up to the mark. We know there are
many tout lawyers. And tout and inferi-
or lawyers can’t give any kind of justice
even if they do give cut-price justice.”
There are numerous reasons why
legal fees add up to an exorbitant
amount. Ranjeev C Dubey, managing
partner of N South, Advocates, told
India Legal: “The legal system is not
expensive per se. To move the system,
you need lawyers who can use their in-
court relationships to get ahead of the
queue. It’s a valuable service for which
they charge premium prices. In addi-
tion, since they know what they are
charging for, they don’t want to do the
slog work. So suddenly, you now need
two lawyers. But then who is to make
the case winnable? You need a really
smart lawyer. So now you are paying for
three lawyers. This is how costs add up.”
Sometimes the senior is overbur-
dened by cases and hence cannot always
OUT OF REACH?
(Clockwise from
extreme left) Senior
lawyers Ram
Jethmalani, Fali S
Nariman and Harish
Salve occupy the
top spots when it
comes to fees
charged

appear at hearings. So, it has become a
common trend to engage other seniors
as back-up. But in such cases though the
back-up lawyer’s fee is usually low, he
demands a higher fee.
Further, the lack of competent
lawyers makes the system expensive and
out of reach of the ordinary citizen.
Matthews J Nedumpara, an advocate
practising at Bombay High Court, told
India Legal: “There is a lack of compe-
tent lawyers and the best talents are
available to the elite class of people who
can afford them.” According to advocate
AC Philips, a senior advocate gets elabo-
rate audience, in a preferential manner,
for which he charges exorbitant fees,
which the common man can’t afford. He
told India Legal: “Section 23(5) of the
Advocates Act provides for preferential
hearing for senior advocates. It means,
those citizens who cannot afford the
premium fees of senior advocates often
have their cases pending for more than a
year.” According to the 2017 Doing
Business report of the World Bank, the
Indian judicial system follows the rules
of adjournments (the maximum
adjournments that can be given is three)
in less than 50 percent of the cases.
S
upreme Court advocate Indira
Jaising told India Legal: “The sys-
tem is log-jammed, but the rich
and the famous manage to get their
cases fast-tracked.” And the “rich and
famous” are out of the reach of the com-
mon man. The Transparency Inter-
national Annual Report 2010 said that
in India court efficiency is also crucial,
as a serious backlog of cases creates
opportunities for demanding unsched-
uled payments to fast-track a case.
The complicated judicial process also
makes it less accessible to ordinary citi-
zens. Not everybody can afford to go
through the process because the process
is itself a punishing one, said Dhavan.
When one goes to court and gets an
adjournment, he has to pay the lawyer
again for the second hearing. Even if the
lawyer agrees to do it for a lump sum,
there are often hidden costs—like some-
times the clerk too asks for money for
photocopying pages and other services.
Besides, quite often the parties file
frivolous litigation and appeals continu-
ously in court so that the case never
ends. Hence, the petitioner is harassed
for years without justice. In Vinod Seth
vs Devinder Bajaj, the Supreme Court
had observed: “The lack of appropriate
provisions relating to costs has resulted
in a steady increase in malicious, vexa-
tious, false, frivolous and speculative
suits, apart from rendering Section 89 of
the Code of Civil Procedure ineffective.
Any attempt to reduce the pendency or
encourage alternative dispute resolution
processes or to streamline the civil jus-
tice system will fail in the absence of
appropriate provisions relating to costs.
There is, therefore, an urgent need for
the legislature and the Law Commi-
ssion of India to revisit the provisions
Expensivesystem
Approximate charges of senior counsel per appearance
Source: Mint
Senior counsel
Supreme Court fees
per hearing
(` lakh)
Delhi High Court fees
per hearing
(` lakh)
Ram Jethmalani 25 25
Fali S Nariman 8-15 -
KK Venugopal 5-7.5 7-15
Gopal Subramanium 5.5-15 11-16.5
P Chidambaram 6-7 7-15
Harish Salve 6-15 6-15
AM Singhvi 6-11 7-15
CA Sundaram 5.5-16.5 -
Dushyant Dave 5.5-10 5.5-10
Salman Khurshid 5 8-11
KTS Tulsi 5-6 8-9
Kapil Sibal 5-15 9-16
Shanti Bhushan 4.5-6 4.5-6
L Nageswara Rao 3-5 -
Sidharth Luthra 3.5 4-5
Rajeev Dhavan 3-5 -
Gopal Jain 2.2-3 2.2-3
Balbir Singh 2.7 1.7
Ajit Sinha 2-5 -
Raju Ramachandran 2-4 -
Shyam Divan 2-4 -
KV Vishwanathan 2-3 3.5
Dhruv Mehta 2-2.5 2.75
Jayant Bhushan 1-2.2 -
Ravi Sikri 0.75-1 -

relating to costs and compensatory costs
contained in Section 35 and 35-A of the
Code.” The same was the case with
Rajender Singh who had to approach
the tribunal several times due to frivo-
lous petitions from opposing parties.
P
resident Kovind’s remarks on
poor people being kept out of the
judicial system were based on his
experiences as an advocate when he was
part of the constitutionally mandated
legal service organisation dispensing
free legal aid to those in financial diffi-
culties. However, free legal aid in India
exists in theory but rarely works in prac-
tice. Article 39A of the Constitution of
India provides that the State shall
ensure that the operation of the legal
system promotes justice on a basis of
equal opportunity, and in particular,
provides free legal aid, by suitable legis-
lation or schemes or in any other way, to
ensure that opportunities for securing
justice are not denied to any citizen by
reason of economic or other disability.
Articles 14 and 22(1) also make it oblig-
atory for the State to ensure equality
before law and a legal system which pro-
motes justice on a basis of equal oppor-
tunity to all. For this purpose, numerous
legal services authorities were formed.
The problem is they simply don’t
work, according to Dhavan. “Whether
one is entitled to legal aid is in itself the
question. In certain cases, one has to
prove that he/she cannot afford a law-
yer. The process is so cumbersome that
one loses hope,” he said. Deepika Sach-
deva, a legal aid counsel, told India
Legal that there are cases where the rich
also take the help of legal aid services
just to avoid paying a lawyer. She said:
“Legal aid services are for those who
can’t afford to go to court because of the
high fees of lawyers. The rich also mis-
use it. Though 99 percent of cases are
genuine, one percent are false. We first
check the jurisdiction. We check his/her
place of work, nationality, income affi-
davits, etc. Accordingly, we first counsel
the person as a pre-litigation process.
We try to solve it through mediation
first so that cases do not pile up in court
and the person gets quick relief. After
that a lawyer is assigned to the person.
The process usually takes at the most
10-15 days. The lawyer should give
his/her client a day-to-day update of the
case.” But people often have to wait for
months before they are assigned a
lawyer. It rarely happens that they are
given a daily update of the case by their
respective lawyers.
Ashish Gupta has been coming to the
DDLSA for the past seven years. Yet he
is not even close to justice. His father
N
ational Legal Services Authority
(NALSA) was formed to provide
free and speedy legal services to
the poor. Legal services authorities have
been formed in every state and district.
Every person who has to file or
defend a case shall be entitled to legal
services under this Act if that person is
from the disadvantaged sections like
SCs or STs, victims of trafficking, beg-
gars, women and children, or the men-
tally ill or disabled.
NALSA also serves those who are
victims of natural disasters, ethnic vio-
lence, caste atrocities or industrial disas-
ters. There is a verification process
which confirms the applicant’s annual
income and status. If the applicant
meets the eligibility criteria and has a
prima facie case in his/her favour, the
Authority provides counsel at the State’s
expense. Court fee and incidental ex-
penses in connection to the case are
also paid.
India Legal also has a legal aid pro-
gramme called, India Legal Research
Foundation (ILRF). It provides free legal
aid to people who are socially and eco-
nomically backward or who belong to
the downtrodden sections of the society.
The team of legal experts at ILRF pro-
vides them legal advice or opinion.
While it does not appoint lawyers, the
legal experts make them aware of the
appropriate legal procedures to avail
legal remedy for their cases.
India Legal's sister TV channel, APN,
a media associate to ILRF, is also dedi-
cated to providing a platform to supple-
ment the group's objective of access to
justice and justice for all.
NationalLegalServicesAuthority
IftheclientisinMumbai,a
well-knownDelhilawyerwill
chargeforhigh-classairfare,
five-starstay,meals,transport,
conferenceandconsultationfees.
NALSA

was allegedly killed by some locals who
then seized his properties. Having lost
the only means of income, Gupta and
his mother beg on the streets. But they
haven’t lost the will to get their shop
back. He had filed an RTI on the details
of his shop, claiming that the plot was
also registered under his grandfather’s
name, in September. It has been more
than 45 days but he hasn’t got a reply.
When he came to DDLSA, he was told
to come after 20 days as he had filed
the RTI in October. When he stood his
grounds, the front office brought out
the documents which showed that he
had filed the RTI in September. After
this, he was asked to come after 10
days. “I have been as-signed a new
lawyer every now and then. Four
lawyers have represented me till date,”
he said.
W
hen his first lawyer was
asked why he left his client
after one and a half years,
his cold reply was: “He is mentally
unstable. They keep on filing false cases
like these. We have to assign a lawyer
and hence we don’t drop these cases.”
Are clients with mental health problems
not allowed justice in India? Though
Sachdeva said they take into account
the mental condition of the litigants,
clients at the legal aid services’ centre
beg to differ. There are no checks and
measures to ensure that the lawyer
assigned takes the case seriously and
tries his level best to expedite justice
in court. Hence, cases end up in court
for ages.
The Daksh database currently has
details of more than 40 lakh cases
pending before various courts. The
average pendency of any case in the 21
high courts for which data is available is
about three years and one month (1,128
days). For a case in any of the subordi-
nate courts, the average time in which a
decision is likely to be made is nearly
six years (2,184 days). Assuming that a
case does not go to the Supreme Court,
an average litigant who appeals to at
least one higher court is likely to spend
more than 10 years in court. And if
one’s case does go to the apex court, the
average time increases by at least three
more years.
The legal aid teams at the high court
as well as the Supreme Court are equal-
ly weak. Everybody follows “a means
test and a merits test”. First, one must
establish that he is really poor and this
benchmark is facile. Even if one does
finally get a lawyer from the legal aid
team, the lawyer would discredit the
case as an empty litigation despite it
being quite litigious, said Dhavan. “We
all pretend that there is great legal aid
in the country. Even in the Supreme
Court, it is very rare that someone from
the legal aid team will actually fight the
case. So, litigation is a luxurious bridge.
It will continue to be so for quite some
Somefightcasesforyears,
somelosehopeandgive
upwhilemostdon’tevengo
tocourttosettletheir
issues.Expensivelitigation,
exorbitantlawyerfeesand
analmostnon-existent
legalaidsystemhave
madeoneoftheworld’s
strongestjudicialsystems
inaccessibletothe
commonman.
Anil Shakya
Anil Shakya

time,” he added. “No one is satisfied
with the services,” said Meenu who is
coming to the DDLSA for the past two
months in the hope of justice.
F
inally, experts also point out that
while there are lawyers available
the commitment is lacking. The
240th Report of the Law Commission
states: “A litigant, who starts the litiga-
tion, after some time, being unable to
bear the delay and mounting costs,
gives up and surrenders to the other
side or agrees to settlement which is
something akin to creditor who is not
able to recover the debt, writing off the
debt. This happens when the costs keep
mounting and he realises that even if
he succeeds he will not get the actual
costs. If this happens frequently, the cit-
izens will lose confidence in the civil
justice system.”
The judgment on the appointment
of senior counsel, Indira Jaising vs
Secretary General, in which the
Supreme court has held that income is
not an issue to be considered in desig-
nations will go a long way in creating a
pool of competent seniors for
these litigants. Jaising said:
“The court has also given due
recognition to pro bono work
which will also encourage
many people to do pro bono
work and legal aid.” But
Dhavan is not very hopeful.
“In some states in
America, the judicial system
says 10-30 percent of one’s
practice should be pro bono.
What rich firms do is they
farm out the legal aid. So, a
mention of pro bono is nearly
an exhortation. It’s like saying
to lawyers, ‘be good’. It does-
n’t provide any service.”
For quick relief, National
Lok Adalats are organised in
the Patiala House Courts.
Sachdeva said: “We try to re-
solve as many cases as possi-
ble there. One has to under-
stand that this is not the only
work we have. We have other work too.”
Though she said that once a case goes to
court, it usually takes two-three months
to resolve, people like Ashish, Meenu
and Jyoti had to wait for months to get
a lawyer.
Between expensive lawyers, frequent
adjournments and delaying tactics, no
litigant ever knows what his legal costs
will be till the judgment is delivered and
the bill arrives. The classic case was
Ashok Kumar Mittal vs. Ram Kumar
Gupta where the apex court observed:
“The present system of levying meager
costs in civil matters (or no costs in
some matters), no doubt, is wholly un-
satisfactory and does not act as a deter-
rent to vexatious or luxury litigation
born out of ego or greed, or resorted to
as a ‘buying-time’ tactic. A more realistic
approach relating to costs may be the
need of the hour.”
What that approach could be is still
in open court.
“Thesystemislog-
jammed,buttherich
andthefamousget
theircasesfast-
tracked.Thecourthas
givenduerecognition
toprobonowork.”
IndiraJaising,advocate,
SupremeCourt
“Youneedlawyerswho
usetheirin-court
contactstogetahead
ofthequeue.They
chargepremiumprices
forvaluableservices.”
RCDubey,managing
partner,NSouth
Advocates
The rich use their money to hire the
most expensive lawyers who are able
to employ their status to jump the
queue and speed up delivery. The
powerful use other methods. When
Neelam Katara took on the politically
powerful Yadav family over the mur-
der of her son, Nitish, she had little
idea of the ordeal she would face.
The trial began in 2003, and due to
political interference, the UP govern-
ment had to withdraw the public
prosecutor, SK Saxena, from the
case. In August 2006, the Supreme
Court, responding to an appeal from
Neelam Katara, shifted the trial from
Ghaziabad to Delhi because of DP
Yadav's considerable influence in the
area, including its administration
and judiciary.
The number of adjournments on
frivolous grounds only added to the
length of the trial and the costs. As
she told India Legal: “The number of
adjournments should be monitored.
This is how they (powerful families)
influence the courts. They think if
they somehow keep getting adjourn-
ments, the other person would even-
tually give up and drop the case.”
She refused to give up and on
October 3, 2016, the Supreme Court
of India sentenced Vishal and Vikas
Yadav to 25 years in prison. It took
Neelam Katara 16 years to get justice
for her murdered son. She refuses to
reveal what it cost her financially but
it was her courage, perseverance
and dogged deter-
mination to see
her son’s killers
brought to jus-
tice that kept
her going. Not
many litigants
possess those
qualities.
Richandpowerful

The Uttar Pradesh Police was widely
reported for arresting a herd of don-
keys for eating up costly plants. However,
it denied making such an arrest. In a
tweet, the force said it had “nothing to do
with their arrest or custody”. The donkeys
were released from the Urai district jail
four days later and a video of their release
put out in the media. The owner of the
donkeys, Kamlesh, who went to the police
station to get his animals released, was
turned away by the police. It was alleged
that he had let the animals loose despite
warnings that a senior police officer had
arranged for some expensive shrubs to be
planted inside the jail.
Briefs
The government-appointed
expert committee under
Justice BN Srikrishna released a
white paper on drafting a new da-
ta protection law. The committee,
which was set up by the ministry
of electronics and IT, has called
on all the stakeholders to share
their views by December 31. The
white paper identifies seven prin-
ciples for the data protection law.
The key areas include technology
agnosticism which means that the
data protection law must be flexi-
ble so that it can adapt to chang-
ing technologies and follow the
principles of data minimisation
and informed con-
sent. The commit-
tee also sug-
gested areas to
be focussed on
for strengthening
online security.
Srikrishna committee
issues white paper on
data protection law
—Compiled by Lilly Paul
Ametropolitan court in
Gujarat issued a non-
bailable arrest warrant
against Dalit leader Jignesh
Mevani and 12 others for not
appearing in court in connec-
tion with his rail roko protest
held in January. However, the
court cancelled his warrant
the next day after Mevani
appeared in court and also
granted him exemption from
appearing for the next hear-
ing on December 9. His
lawyer submitted before the
court that Mevani had been
busy filing his nomination for
the upcoming assembly elec-
tions. Mevani is going to con-
test as an independent candi-
date from Vadgam constitu-
ency in Banaskantha district.
UP police jails donkeys for
eating costly plants
Exactly a day after
the Aam Aadmi
Party celebrated its
fifth anniversary, it
was slapped with a
`30 crore tax notice by
the income tax depart-
ment. The party is
accused of a massive
mismatch in donations
that it received and
those that it docu-
mented. The party is
also said to have con-
cealed details of its
overseas donations.
The income tax
department said that
AAP was given 34
chances to explain the
issue. Delhi chief min-
ister Arvind Kejriwal
called it the “height of
political vendetta”. The
party also said that
this is the first time a
political party's dona-
tions have been treated
as taxable earnings.
Gujaratcourtissues,thencancels
warrantagainstJigneshMevani
Govt to table NCBC bill in
Lok Sabha again
The government is planning to
reintroduce a bill in parlia-
ment giving constitutional status
to the National Commission for
Backward Classes (NCBC), bring-
ing it on a par with the National
Commission for Scheduled Castes
and Scheduled Tribes. The bill
was passed in both houses of par-
liament during the last session
but the Rajya Sabha passed it
with some amendments. The new
version of the bill will now be
tabled in the Lok Sabha in the
upcoming winter session, starting
on December 15. The opposition
is critical of the timing of the bill,
calling it a move to please Guja-
rat’s OBCs.
AAP gets `30 cr
tax notice

Supreme Court/ Prevention of Money Laundering Act
N a laudatory move, the Supreme
Court recently struck down a provi-
sion of an act which denied pre-
sumption of innocence of the acc-
used and, therefore, bail. Presump-
tion of innocence is the cornerstone
of the rule of law and intrinsic to the
right to life, liberty and equality.
Section 45(1) of the Prevention of
Money Laundering Act, 2002 imposed
two conditions for grant of bail where
an offence is punishable with more than
three years in jail. One was that the
Public Prosecutor (PP) must be given a
chance to oppose any bail application.
The second was that the court must be
satisfied, where the PP opposes the
application, that there are reasonable
grounds for believing that the accused is
not guilty of the money laundering
offence, and that he is not likely to com-
mit any offence while on bail.
The presumption of innocence,
which is attached to any person being
prosecuted for an offence, was inverted
by the conditions specified in Section
45. Under the provision, the court was
to be satisfied that there were reason-
able grounds to believe that the person
was not guilty, and that he was not likely
to commit any offence while on bail.
The court thus held that Section 45 was
a drastic provision which turned on its
head this fundamental presumption.
PERSONAL LIBERTY
On November 23, a Supreme Court
bench of Justices Rohinton Fali Nari-
man and Sanjay Kishan Kaul struck
down this provision as unconstitutional
and violative of Articles 14 and 21 of
the Constitution.
The bench said: “All the matters
before us in which bail has been denied,
because of the presence of the twin con-
ditions contained in Section 45, will
now go back to the respective courts
which denied bail. All such orders are
set aside, and the cases remanded in the
respective courts to be heard on merits,
without application of the twin condi-
tions contained in Section 45 of the
2002 Act. Considering that persons are
languishing in jail and that personal lib-
erty is involved, all these matters are to
be taken up at the earliest by the respec-
tive courts for fresh decision.”
As a result of the decision, a number
of accused who are facing prosecution
under the Act are likely to be found eli-
gible for bail. Among them are Nation-
alist Congress Party leader Chhagan
Bhujbal and Kashmiri separatist leader
Shabbir Shah. According to a newspaper
report, almost no one got bail until a
chargesheet was filed in the PMLA
cases. Of the over 120 persons accused
by the Enforcement Directorate and
arrested under the PMLA since 2005,
only three have successfully secured bail
within months of their arrest, said
another report.
The PMLA was introduced to make
money laundering an offence and attach
the properties of those involved so that
this serious threat to the financial sys-
tem is adequately dealt with. The Act,
passed by parliament in 2002, became
Relief in
Sight
Inajudgmentthathas
broughthopetomany
undertrialsfacingprosecution
formoneylaundering,the
apexcourtstruckdown
Section45(1)oftheAct
whichimposedstringent
conditionsforbail
By
Venkatasubramanian
I
UNI

effective only on July 1, 2005. Simply
put, money laundering involves using
the proceeds of crime and claiming it as
untainted property. The offence is pun-
ishable with rigorous imprisonment
from three to seven years (with the max-
imum imprisonment fixed at 10 years)
and is also liable to fine.
FUNDAMENTAL RIGHTS
The petitioner, Nikesh Tarachand Shah,
and others like him before the Supreme
Court submitted that Section 45 of the
Act, which seeks to impose two addi-
tional conditions for grant of bail, is
manifestly arbitrary, discriminatory and
violative of their fundamental rights
under Article 14 read with Article 21 of
the Constitution.
Part A of the Schedule of the Act
contained two paragraphs. Para 1, con-
taining Sections 121 and 121A of the
IPC, deals with waging or attempting to
wage war or abetting waging of war
against the Government of India and
conspiracy to commit such offences.
Para 2 dealt with offences under the
Narcotic Drugs and Psychotropic
Substances Act (NDPSA), 1985.
Part B of the Schedule, as originally
enacted, referred to certain offences of a
heinous nature, which included murder,
extortion, kidnapping, forgery and
counterfeiting. Paragraphs 2 to 5 of Part
B dealt with certain offences under the
Arms Act 1959, Wildlife (Protection)
Act, 1972, Immoral Traffic (Prevention)
Act, 1956, and the Prevention of
Corruption Act, 1988.
SERIOUS OFFENCES
When the Act was originally enacted, it
was clear that the twin conditions appli-
cable under Section 45(1) would only be
in cases involving waging of war against
the Government of India and offences
under NDPSA. Even the most heinous
offences under the IPC were contained
only in Part B so that if bail were asked
for, the twin conditions imposed by
Section 45(1) would not apply.
Incidentally, one of the reasons for
classifying offences in Part A and Part B
of the Schedule was that offences speci-
fied under Part B would be attracted
only if the total value involved in such
offences was `30 lakh or more.
Thereafter, the Act was amended
several times. In 2009, an amendment
inserted more offences under Parts A
and B of the Schedule. In 2012, a very
important amendment was made by
which offences under Part B were trans-
planted into Part A. This made bail dif-
ficult to obtain even for those accused of
minor offences.
The court held that before applica-
tion of a section which makes drastic
inroads into the fundamental right of
personal liberty guaranteed by Article
21, we must be doubly sure that such
provision furthers a compelling State
interest for tackling serious crime. Pro-
visions akin to Section 45 were upheld
earlier on the ground that there was
such a compelling State interest, the
court added. The court’s upholding of
the draconian provisions of the Terrorist
and Disruptive Activities (Prevention)
Act (TADA), for example, was justified
on this ground.
The impact of the ruling on the gov-
ernment’s fight against black money is
yet to be observed, although the court
has held that the provision being found
unconstitutional does not serve the pur-
pose of the PMLA.
PMLA ARRESTEES
(On facing page) Jignesh Kishorebhai
Bhajiawala, son of Surat-based financier
Kishore Bhajiawala, separatist leader Shabbir
Shah (above) and former Maharashtra deputy
chief minister Chhagan Bhujbal
Asaresultofthedecision,
anumberofaccusedwhoare
facingprosecutionunderthe
PMLAActarelikelytobefound
eligibleforbail.
UNI

Courts / Delhi High Court / RTI Application
HE Delhi High Court has
held that the RTI Act cannot
override Supreme Court
Rules (SCR) when it comes
to dissemination of informa-
tion. Justice Manmohan stressed that
when the matter is of a judicial nature,
then the due procedure followed must
also be by way of judicial proceedings
and the RTI Act cannot be resorted to.
The Court’s order follows a plea filed
by the Registrar, Supreme Court, who
had challenged a May 2011 order of the
Central Information Commission (CIC)
directing the apex court to answer the
queries of the petitioner, RS Misra, as to
why his Special Leave Petition (SLP)
was dismissed.
Misra was a postgraduate chemistry
teacher in Kendriya Vidyalaya and
received a termination letter under
Article 81(b) of the Education Code in
November 2003. Misra challenged it
in the Central Administrative Tribunal,
but it was dismissed. He then filed peti-
tions in the High Court and Supreme
Court, both of which dismissed his plea.
Thereafter, he sought information
through the RTI Act as to why his
SLP was dismissed. He finally moved
the CIC, which directed the apex court
to provide information regarding
his queries.
The CIC, which oversees the imple-
mentation of the transparency law, ruled
that persons seeking information from
the court were entitled to use the RTI
Act. Further, the CIC said the Supreme
Court Rules appeared to be inconsistent
with those of RTI as the latter were
arbitrary in disclosing information. It
said that the Supreme Court did not
require an applicant to furnish the
intent/reason for seeking information.
The Act says that “a person who is
not a party to the case, appeal or matter”
needs to show “good cause” as to why
he/she is seeking documents related to
the legal matter in question. What
amounts to “good cause” will be deter-
mined by the court, if and when the
information requested by an applicant
will be shared. It was clear that the CIC
was of the view that the SC rules were
not helping in the enforcement of the
fundamental right to information.
However, the Delhi High Court set
aside the CIC order and condemned the
applicant’s conduct of writing letters to
apex court judges, asking why his SLP
regarding termination of his services as
a teacher was dismissed. The Court said:
“Dissemination of information under
the SCR is part of judicial function,
exercise of which can’t be taken away by
any statute. It’s a settled legal position
that the legislature isn’t competent to
take away judicial powers of the Court
by statutory prohibition.”
Devadatt Kamat, the Supreme Court
advocate who appealed on behalf of the
apex court, said: “If the public begins to
enquire about the logic behind every
judgment, then it will impede the inde-
pendence of the apex court.” This is true.
It is necessary for the freedom of the
judiciary to follow this principle. Also,
RTI allows for almost any kind of query
with few restrictions, whereas the Court
allows for requests for court documents
only. When an order is reasoned, the
logic behind the order should not arise
as it opens the floodgates for question-
ing any/all orders passed by judges and
would be tantamount to questioning the
judicial system. Moreover, the RTI Act
does allow for a court’s public informa-
tion officer to decline to release infor-
mation that would hurt an ongoing
prosecution or that would amount to
contempt of court.
The Supreme Court’s information
officer argued successfully that the pro-
cedure for accessing court documents is
already clearly outlined in the Supreme
Court Rules and information seekers
should use that procedure. This was
further established by the High Court
when it ruled that the information
regarding administration functions of
the Court can be accessed through an
RTI, and for judicial functions the rules
set in the SC Rule Act, 1966, should
be applied.
TheHChasheldthattheRTIActisnotmoreimportantthan
apexcourtruleswhenitcomestodisseminationofinformation
By Jahnavi A
T
DISCLOSURE ISSUES: The Central
Information Commission office in Delhi
SC Rules Supreme

Spotlight/ Jails/ Security
case has been filed in the
Delhi High Court con-
taining serious allega-
tions against jail staff
and security personnel
inside Asia’s largest and
India’s only super-security and VIP jail,
Tihar, for mercilessly beating up some
under-trial inmates on two days in
September and November. The applica-
tion, made under Article 226 of the con-
stitution, read with Section 482 CrPC,
seeks “issuance of urgent interim direc-
tions for the protection of the life and
commenting that Indian jails, even the
super special jail complex of Tihar, are
way below standards, compared to
international jails and hence should no
more be called centres for reformation.
India Legal is now in possession of
exclusive inside information, as also an
official version on what exactly hap-
pened inside the jail, especially on
November 21, and why. First, here are
Trouble in TiharThebrutalbeatingofsomeprisonersinhigh-securityTiharJailrecentlyhasopenedacanof
worms.Whoweretheseconvicts?Whatprovokedtheprisonpolicetobeatthemso
mercilessly?ExclusivedetailsobtainedbyIndiaLegal separatefactfromfiction
By Sujit Bhar
A
STOREHOUSE OF SECRETS
The entrance to Central Jail No. 1 of
Tihar Prisons
Rajeev Tyagi
limb of the petitioner (an inmate going
by the name Jamal, alias Ranjha) and
certain other inmates inside the prison”.
The incidents described in the peti-
tion—on September 13 in Central jail
(CJ) No. 3 and on November 21 in
Central Jail No. 1—have started a huge
debate in the media and elsewhere as to
the reason behind the beating of in-
mates and on whether the security per-
sonnel of Tihar Jail behaved highhand-
edly, going against all that is laid down
in jail manuals. The incidents have
opened a can of worms with many even

“It is submitted that around 9 pm on
November 21, 2017, the alarms
were falsely set off at Central Jail
No. 1 and almost all the inmates of
Block C and Block F of the High
Risk Ward therein were brutally
assaulted by Tamil Nadu Police and
Prison Officials, continuously for
more than one hour. An indicative
list of the inmates who were
assaulted and have sustained griev-
ous injuries is as follows:
(i) Ahtesham, s/o Farooq
(ii) Hakim, s/o Abdul Karim
(iii) Azeemushan, s/o Abdul Sattar
(iv) Sajid
(v) Shahid Yousuf, s/o Md Yousuf
(vi) Md Azhar, s/o Md Taufeeq
(vii) Mushtaq Ahmad, s/o Abdul
Hamid
(viii) Asadullah Rehman, s/o
Anees-ur-Rehman
(ix) Sehzad, s/o Siraj Ahmad
(x) Hakim, s/o Abdul Karim
(xi) Adnan, s/o Hussain Damodi
(xii) Shauqat, s/o Abdul Haque
(xiii) Irfan, s/o Mirajuddin
(xiv) Ashutosh, s/o Dinanath
To the knowledge of the petitioner,
Asadullah Rehman has been so
brutally beaten up that there has
been dislocation of the forelimbs.
Others who have sustained injuries
include, Imran, s/o Moazzam;
Sohail Ahmad, s/o Umar Farooque;
Md Sharif Moinuddin; Obadullah
Khan; Sameer, s/o Mufeez Ahmed
and Farhan, s/o Rafique. It is sub-
mitted that the assault was led by
Muthupandi, Chandrasekhar, P
Raja, Kalakesh, Gunaselvam, P
Kumar and R Suresh Kumar of the
Tamil Nadu Police.
“The above stated victims had
recently lodged their complaint
before the prison authorities against
the Tamil Nadu Police for continu-
ous harassment.”
the CCTV cameras were dysfunctional at
the relevant time, wherefore, no
scientific evidence as to the incident of
assault exists. This Hon’ble Court has
taken serious note of the same and has
directed the Union of India [the min-
istry of home affairs specifically] to con-
stitute a high-level committee to look
into the matter.”
The petition goes on to give details of
the incident (see box) and complains of
the “highhandedness of the prison
administration”, while expressing con-
cerns about the “safety of prisoners”. It
says that “such incidents of brutal and
indiscriminate violence against the
inmates at the hands of the prison staff
and the Tamil Nadu Police is continu-
ing unabated.”
The court had asked the MHA to
institute an inquiry, and on November
30, had dismissed the Delhi government
standing counsel’s insistence that the
situation was being handled on the
administrative side (the jail is within the
purview of the Delhi government,
though it’s special security staff, the
Tamil Nadu Special Police, is under the
MHA), and ordered that the investiga-
tion report was ground enough to lodge
an FIR.
Within the tense atmosphere of the
jail today, the truth is somewhat differ-
ent. According to a reliable source, con-
versant with the goings-on inside the
the allegations that have been levelled in
the petition with the court. The petition
reads as follows: “That the present peti-
tion relates to the incident that had
taken place on September 13, 2017,
inside Central Jail No. 3 of the Tihar
Prisons, wherein many inmates had
been brutally assaulted by the prison
staff and Tamil Nadu Special Police, and
the petitioner herein had been grievous-
ly injured and crippled for many days on
account of the same. It is submitted that
a similar incident has yet again taken
place in Central Jail No. 1 of the Tihar
Prisons and several inmates have yet
again been brutally assaulted on Nov-
ember 21, 2017, by the prison staff and
Tamil Nadu Special Police, and many of
them have sustained grievous injuries.
Further, the injured are not even being
given the required medical attention.
“That acting upon the instant peti-
tion and the two connected petitions...
this Hon’ble Court, vide its order dated
October 13, 2017, had directed the
respondents [which is NCT of Delhi in
the main] to conduct a fair inquiry into
the incident and submit the report. The
report submitted by the respondents
indicated, inter alia, that a majority of
HIGH-PROFILE PRISONERS
Former MP Shahabuddin arrives at a station
in Patna under tight security on the way to
Tihar Central Jail from Siwan Jail
Attackers
inuniform?
The complaint in the petition
is as follows:
UNI

jail, India Legal learns that some of the
inmates of the High Risk Ward (HRW)
of Central Jail 1 (in the November 21
incident) had initiated the trouble dur-
ing a regulation search by Tamil Nadu
Special Police (TSP) and jail staff (see
box on security system in the jail) for
smuggled cell phones and SIM cards.
These are inmates who are allegedly
either members of the dreaded Lashkar-
e-Taiba and/or IS activists and opera-
tives as well as feared gangsters.
There is an official version also avail-
able to India Legal on the incident. This
says: “Pillow covers (as also curtains)
are banned inside jails because they are
used to hide smuggled goods. The secu-
rity personnel were collecting the pillow
covers. As per instructions of prison offi-
cials, such ward searches were being
conducted twice a day. Recently, during
the search of the HRW of CJ-1, four
mobile phones were recovered from the
inmates of the HRW.
“Information was passed to the CJ-1
superintendent that the inmates of the
HRW were using the pillow covers to
hide prohibited articles, such as mobile
phones, SIM cards, etc. On the instruc-
tion of the CJ-1 superintendent, during
the ward searches, pillow covers were
removed from, A, B, D E and G blocks.
These inmates cooperated with the
search team. However, while confiscat-
ing the pillow covers seized from C and
F blocks, the inmates of C and F blocks
not only objected but started a scuffle
with TSP officers and personnel. They
shouted anti-national slogans (‘Paki-
stan zindabad’).
“The inmates of C and F blocks,
specifically (i) Irfan, s/o Mirajuddin and
(ii) Afsar, s/o Mohd Yusuf (iii) Ashutosh,
s/o Dinanath, and (iv) Shoukar, alias
Ashabuddin, s/o Abdul Hai, are known
gang leaders, operating in outer Delhi
and UP. The other inmates, such as
Gulam Mohd and others, are the terror-
ists belonging to Lashkar–e-Taiba.
“The inmates of C and F blocks then
started using filthy language, poured
water on the TSP team and started scuf-
fles. Moreover, one of the TSP officials
was forcibly being pulled in to the cell
despite warnings issued by Assistant
Superintendent (AS) Bijender Kumar
Gundu and TSP SI Muthupandi. They
refused to go inside their respective
cells. Instead they gathered and started
roaming in the verandah, where they
collectively attacked the physically chal-
lenged duty TSP Officer SI Muthupandi
and other TSP personnel. The TSP team
along with the AS suspected that they
might indulge in further unlawful activi-
ties on the spot and create a panic situa-
tion just like the recent incidents at
Acapulco Prison in Mexico on July 6,
2017, in which 28 inmates lost their lives
Whilethejailauthoritiesaccept
thattherewerelapses,itwas
evidentthatitwasthelivesofthe
securitypersonnelthatwere
underthreatfromthegangsters.
T
ihar is a very special jail, for special
inmates, who need special protec-
tion. The huge jail complex has
“hosted” inmates such as Sanjay Gandhi,
Lalu Prasad Yadav, Subrata Roy (of
Sahara), Chhota Rajan, Satwant Singh
and Kehar Singh (for the assassination of
Indira Gandhi), Charles Sobhraj, A Raja,
MK Kanimozhi, Suresh Kalmadi, Amar
Singh, Anna Hazare, Arvind Kejriwal and
many more.
Hence its security system is also very
Securitysystem
inside TiharJail
Since 1980, the premises have been
under the watch of Tamil Nadu Police
Spotlight/ Jails/ Security
THOSE IN CHARGE: Home minister Rajnath Singh and (right) Tihar Jail DG Ajay Kashyap

along with the Quick Response Team,
who came after the siren was blown,
used “minimum force” to keep all
inmates inside the block.
“Assistant Commandant M Selva-
mani and Inspector Sreekumar arrived
on the spot and got inside the HRW
along with the Deputy Superintendent
and evacuated the cell. First aid was
administered by the duty doctor of CJ-1
to the affected TSP personnel and in-
mates who were then referred to the
Deen Dayal Upadhyay Hospital for fur-
ther treatment.
“The following TSP personnel were
heavily injured: (i) 7955 Chandrasekar
(ii) NK 2056 Swaminathan (iii) NK
2533 Mahesh (iv) NK 2150 Thirupathi
(v) PC 2702 Sreedhar.
“The commandant of TSP has ord-
ered the suspension of SI Muthupandi
and five others for procedural lapses
made during the search and a request
has been made to the prison authority
for taking suitable action against the
miscreants/inmates of CJ-1 HRW.
“It is pertinent to mention that out of
25 miscreants / inmates identified, ten
inmates are terrorists having links with
IS and SIMI, five inmates are terrorists
from Lashkar-e-Taiba. Others are gang-
sters from Delhi and UP.”
The official version explains how the
and several escaped and the chaos at
Manaus, Brazil, on January 2, 2017,
whereby taking 12 prison guards as
hostage, almost 126 prisoners escaped
and 56 lost their lives. To avoid such an
untoward situation, the TSP personnel
situation had gone completely out of
control. And while the jail authorities do
accept that there were lapses in the
action as far as procedure was con-
cerned, it was also quite evident that it
was the lives of the security personnel
that were under threat from the dread-
ed gangsters.
NON-FUNCTIONAL CAMERAS
The other curious issue is of non-func-
tional CCTV cameras. While the
November 21 incident had video footage
(submitted to the court), many incidents
of inmate trouble aren’t, simply because
the cameras do not work. India Legal’s
source provided the reason.
“Most of the wiring in the jails, con-
necting the CCTV cameras, are not in
the nature of concealed wiring. Hence
the wires hang loose and jail inmates
regularly snip these wires to disable
the cameras. This is not an unknown
situation for jail authorities, but since
the CCTV cameras are handled by the
jail authorities, this differentiated com-
mand structure means that repairs
aren’t carried out in time,” said the high-
ly-placed source.
different from other jails. The jail is basi-
cally divided into two sections, comprising
the general wards and the high security
wards or High Risk Wards. It is manned
overall by jail staff. They are under the
government of Delhi. Security of the gen-
eral wards is handled by the jail staff.
However, beyond that, starting from
the main gate where security frisking is
conducted for incoming/transferee
inmates and for visitors, Tamil Nadu
Special Police (TSP) has been at work,
pretty effectively from 1980. TSP in Tihar
has always been headed by an IPS officer
of the rank of Superintendent of Police
/Commandant. At present, a senior super-
intendent of police-ranked IPS officer,
Abhishek Dixit, is heading the force. TSP
is also responsible for security within the
HRW. They are helped by jail staff.
The hierarchy is a bit complicated.
While the jail overall is under a Director
General of Police (under the MHA, the
incumbent at that post being Ajay
Kashyap, IPS), the jail staff is under the
state government. However, even at the
HRW, a jail superintendent is at the helm
who is also under the state government.
TSP operates under the superintendent,
though they are assisted by the jail staff.
According to security sources inside the
jail, this has created no problem in so far
as command structure is concerned.
Why was TSP assigned this special
task? Initially there was another force han-
dling this, with personnel having good
knowledge of Hindi. According to the
source, this created a clique between
inmates (who are mostly from northern
India) and some corrupt security staff,
with material such as phones, SIM cards,
food and even valuables and drugs arriv-
ing with ease inside. TSP personnel know
no Hindi, hence this communication route
is cut off.
TSP personnel have been quite suc-
cessful in preventing the smuggling of
contraband inside Tihar. In the current
year till September they have seized 904
contraband items, such as 41 mobile
phones, 78 SIM cards, nine surgical
blades, 102 improvised iron weapons,
about 4 kg of narcotics, `2.5 lakh in cash.
TSP officers often claim that due to their
effective searching and frisking, they
become obvious targets as far as com-
plaints from inmates are concerned.
GANG WARS
An inmate is escorted to his cell following a
2009 scuffle; (facing page) a prisoner hurt in
the same fight. Similar clashes have taken
place on the premises at other times

Profile/ Justice N Kirubakaran
re we not ashamed of
opposing the NEET? Do
you underestimate the
ability of our students and
the standard of education
in Tamil Nadu? Do you
feel that our students will not do better
than students of other states? When all
other states have not objected what is
the reason for Tamil Nadu opposing it?”
These words were uttered not by any
political party, intellectual, academician
or mediaperson, but by Justice N
Kirubakaran, a judge of the Madras
High Court. He made these observations
in March while hearing a batch of peti-
tions seeking allotment of 50 percent of
PG seats in medicine in private colleges
for the government quota. The petition-
ers included not only students and par-
ents but the Tamil Nadu government.
The judge posed these questions when
the counsel for the state health depart-
ment brought to the notice of the Court
that the Tamil Nadu assembly had
passed a bill to exempt the state from
NEET (National Eligibility and
Entrance Test) and it was pending with
the president. Justice Kirubakaran made
these remarks when the whole state was
raging against the NEET exam.
Justice Kirubakaran is an interesting
personality in the Madras High Court
and is known for his unconventional
judgments and open remarks on varied
subjects. These include unverified advo-
cates, castration for child rapists, pulling
up government teachers who joined
strikes and making helmet-wearing
compulsory for two-wheeler riders in
Tamil Nadu. His rulings will definitely
nudge legal researchers and journalists
interested in analysing judicial verdicts
to delve deeply into studying the consti-
tution. Some of the controversial sub-
jects he has spoken on are:
POTENCY TESTS
In August 2014, Justice Kirubakaran
directed the central and Tamil Nadu
governments to respond to a query
whether it was not necessary to make
premarital clinical examinations
mandatory. “This view was taken after
observing a quick rise in divorce peti-
tions due to impotency and frigidity,” he
said. This unconventional direction of
the judge created debates on several tel-
evision channels across the country. In
one of the TV discussions, Dr R
Bhonsle, a sexologist, said: “Actually 90
percent cases of so-called impotency are
psychogenic or psychological. In many
TheNewsmakerJudge
Knownforhisunconventionaljudgments,thisMadrasHighCourtjudgehasoftencreatedastirwith
hisremarksoncastrationforchildrapists,potencytests,NEETandcompulsoryhelmet-wearing
By R Ramasubramanian in Chennai
A
OUTSPOKEN OR OPINIONATED?
Justice N Kirubakaran has been a permanent
judge of the Madras High Court since 2011
“
Youtube

cases, a good sexual relationship may
not be established because of situational
or relational issues. There is no test to
confirm till date that a man is impotent
for a biological reason. There is also no
exact test to decide whether a person
will get an erection or not. Similarly,
there is no method to examine a woman
and suggest frigidity because of biologi-
cal reasons. There are tests which might
suggest so but none can establish any
result beyond doubt. A semen test can
only tell about fertility and not potency.”
CASTRATION
In October 2015, while dealing with a
case related to child rape, Justice
Kirubakaran said: “When law is ineffec-
tive and incapable of addressing the
menace, this court cannot keep its
hands folded and remain a silent specta-
tor unmoved and oblivious of the recent
happenings of horrible blood-curdling
gang rapes of children in various parts
of India.” He added: “Castration for
child rapists would fetch magical results
in preventing child abuse.”
UNVERIFIED ADVOCATES
Yet another interesting order by Justice
Kirubakaran directed the Bar Council of
Tamil Nadu to check the growth of those
who had secured law degrees with a
basic qualification of MA obtained
through open universities. The issue
cropped up when he was dealing with a
petition by 17 MBBS students of a pri-
vate medical college. They were seeking
transfer to a state-run institution due to
a dispute between the trustees of their
college. Advocates had been engaged to
resolve the problem.
But suddenly the hearing took a new
twist when the advocate-general of Tam-
il Nadu told the court that persons who
had not even passed Class VI or VII
were able to procure open university
MA degrees and get into law colleges
and secure BL or LLB degrees.
Justice Kirubakaran termed this
shocking and directed the Tamil Nadu
Bar Council and the advocate-general to
cancel the membership of 713 lawyers
who had got their law degrees in such
a manner.
Accordingly, the Bar Council of Tamil
Nadu passed a resolution suspending
the 713 advocates from practising and
later issued show-cause notices to them.
But this order was stayed by a division
bench headed by the Chief Justice of the
Madras High Court, Justice Indira
Banerjee, after hearing some of the
affected lawyers who were so affected.
The bench transferred the matter to a
full bench. But a large section of lawyers
felt that the single judge’s order was
erroneous. “I welcome Justice
Kirubakaran’s earnest attempts to regu-
late law education. But the solution is
definitely not banning lawyers who got
their degrees in such a manner. It would
have been better if such graduates
HOT-BUTTON
ISSUES
Chennai Traffic
Police distribute
free helmets dur-
ing the 26th Road
Safety Week held
recently; (below)
activists of the
Tamil Maanila
Congress led by
its chief GK Vasan
protest against
NEET in Chennai
CourtingControversy
On NEET: “Are we not ashamed of opposing the NEET? Do you underestimate the
ability of our students and the standard of education in Tamil Nadu?”
On Potency Tests: “This view [of whether premarital clinical exams are a must] was
taken after observing a quick rise in divorce petitions due to impotency and frigidity.”
On Castration of Child Rapists: “This court cannot keep its hands folded...
Castration for child rapists would fetch magical results in preventing child abuse.”
On Striking School teachers: “They were not ashamed of the fact that only five
students from government schools made it to the MBBS course this year.”
UNI
UNI

were put through rigorous testing and
training and allowed to practise,” said M
Vetriselvan, a lawyer and an activist.
SOCIAL MEDIA OUTRAGE
While dealing with a case related to
Tamil Nadu government school teachers
boycotting classes and joining a strike
with other government employees, the
judge asked whether “the striking gov-
ernment schoolteachers were not
ashamed of the fact that only five stu-
dents from government schools made it
to the MBBS course in 22 government
medical colleges in Tamil Nadu this
year”. After this pulling up by the judge,
there was strong criticism against him
in social media.
The Tamil Nadu government then
informed the judge that they were tak-
ing action against those who posted
abusive comments against him. So far,
the police have arrested 11 people for
trolling and abusing Justice
Kirubakaran. Those arrested include a
65-year-old man.
HELMETS
On July 1, 2015, Justice Kirubakaran
passed an order making it compulsory
for two-wheel drivers to wear helmets.
Opposing this order, several lawyers in
the Madurai bench of the Madras High
Court took out a huge procession inside
the Court premises. Later, around 150
lawyers from Madurai came to Chennai
and tried to barge into the court hall of
a division bench which was hearing con-
tempt proceedings against two advo-
cates from Madurai for undertaking a
procession defying the compulsory hel-
met rule. The protesting lawyers raised
slogans against the judges and the
ruckus continued for over an hour.
Born on August 21, 1959, Justice
Kirubakaran started his practice in
Madras High Court in 1985. He handled
arbitration, sales tax, customs and
excise, rent control and criminal cases
during his tenure. He worked as an
additional central government standing
counsel and became an additional judge
of the Madras High Court on March 31,
2009. He was made a permanent judge
on March 29, 2011.
The unanimous opinion in both the
bench and the bar about Justice
Kirubakaran is that he is incorruptible
and has an appreciable social con-
science. However, P Sundararajan, an
advocate in Madras High Court, said:
“Justice Kirubakaran has failed to grasp
or understand certain basic tenets of
human psychology and the social struc-
ture of India. This is sadly a genuine
problem and is not only affecting the
bench and bar but society, too.”
Nonetheless, he has made a mark in
the judiciary with his no-nonsense atti-
tude and bold judgments.
Profile/ Justice N Kirubakaran
Theunanimousopinionin
thebarandthebenchabout
JusticeKirubakaranisthathe
isincorruptibleandhasan
appreciablesocialconscience.
TOGETHER WE STAND
Members of the Joint Action Committee of
Teachers Organisations and Government
Employees Organisations protest in Chennai
UNI

National Security/ Threat Perception
HE centre has withdrawn the
“Z+” security cover to RJD
leader Lalu Prasad Yadav
after reviewing the threat
perception of various politi-
cians. He has now been given “Z” securi-
ty and will be guarded by an armed
commando squad of the Central Reserve
Police Force (CRPF) instead of the
National Security Guard (NSG).
Yadav was the chief minister of Bihar
from 1990 to 1997 and railway minister
from 2004 to 2009. He was an MP
from Saran constituency in Bihar but
was disqualified owing to conviction in
the fodder scam.
The Z+ security cover of former
Bihar CM Jitan Ram Manjhi has been
withdrawn too and he will now be
guarded by the state police. Other lead-
ers too have had their security scrapped
by the Ministry of Home Affairs after
an assessment of their threat perception.
In India, security is provided to high-
risk individuals by state governments
through the local police and by the cen-
tral government through the SPG
(Special Protection Group), NSG and
CRPF. Among the list of those protected
are the president, vice-president,
prime minister, Supreme Court and
high court judges, state governors and
chief ministers.
VVIP security is decided by a com-
mittee consisting of Intelligence
Bureau (IB) officials, the home minis-
ter and the home secretary after receiv-
ing assessment reports from the IB. In
some cases, security is also provided
on the recommendations of a state
government.
Depending on the level of threat,
security is classified into four main
levels. Z+ is the highest security level,
and additional SPG coverage is provided
to the most important people in the
country, including current and former
PMs. As of now, only six people get SPG
protection—Prime Minister Narendra
Modi, former PMs Manmohan Singh
and Atal Bihari Vajpayee, Congress lead-
ers Sonia Gandhi and Rahul Gandhi,
and his sister Priyanka Vadra.
It is interesting to note the number
of security personnel for each security
cover:
Z+ security cover has 55 personnel
(including 10+ commandoes and police
personnel)
Z category has a security cover of 22
personnel (including four or five NSG
commandoes and police personnel)
Y category has a security cover of 11
personnel (including one or two com-
mandoes plus police personnel)
X category has a security cover of five
or two personnel (only armed police).
For former PMs and their families,
SPG cover cannot be extended beyond a
year of leaving office, unless an assess-
ment of their threat perception warrants
it. Security cover has now become a sta-
tus symbol for a politician as earlier,
despite IB reassessment that a cover was
no longer needed, it was not removed by
the government of the day.
However, despite Z+ security, some
VVIPs have been killed. These include
former PM Indira Gandhi, former
Union minister Pramod Mahajan, who
was shot by his brother, and Rajbir
Singh, a famous encounter specialist.
—The writer is an advocate
in the Supreme Court
Lalu’s Security Downgraded
Anassessmentbythehome
ministryhasledtotheRJD
leader’s Z+securitycover
beingwhittleddownto
Zcategory
By Rajesh Kumar
T
NO LONGER IN THE ELITE CLUB
RJD supremo and former Bihar CM Lalu
Prasad with security personnel in Ranchi
UNI

UPriots:AllahabadHCgagsmedia
The Allahabad High Court
has barred the media from
reporting on the hearings of
the Gorakhpur riots, in which
Uttar Pradesh CM Yogi
Adityanath is the prime accus-
ed. Adityanath, who was then
the MP from Gorakhpur, was
arrested and jailed for a fort-
night after his followers set
a mausoleum on fire. His spee-
ches are said to be the prime
instigation for the tension that
occurred. The High Court order
says that it is constrained to
issue directions that “no one
shall publish” or cause to be
published “any proceedings of
this case till the delivery of
the judgment”.
Briefs
Following the mystery over
judge Brijgopal Harkishan
Loya’s death comes a press
conference by sitting Bombay
High Court judge Justice
Bhushan Gavai (below) claiming
that there was “nothing suspi-
cious” about the death. He said
that there was no cover-up or
mystery about Justice Loya’s
death, and that a senior judge
had rushed to help him when he
had complained of chest pain.
Justice Gavai is said to have
met Justice Loya at a Nagpur
marriage hours before he died in
December 2014. Justice Gavai
called a press meet in his
chambers. However, most of the
court reporters who were pres-
ent there chose not to report
the meet.
“Nothing suspicious
about Loya death”
—Compiled by Lilly Paul
In an Allahabad High
Court-like order, a spe-
cial CBI court in Mumbai
has barred media from
reporting on the day-to-
day proceedings of the
Sohrabuddin Sheikh
alleged fake encounter
case. The trial is being
held in Mumbai after the
apex court moved it out of
Gujarat. The additional
sessions judge gave the
order on an application
filed by the defence coun-
sel to ban day-to-day
reporting of the case pro-
ceedings. The defence
wanted a complete ban on
print, electronic and social
media. The court has
allowed the media to sit
through the proceedings,
but not report on them.
No media reporting on Sohrabuddin trial, says court
Following feedback from several states, the
Narendra Modi government is finally think-
ing of rolling back its ban on sale of cattle for
slaughter. The controversial May 25 order that
was issued by the Union ministry of environ-
ment, forests and climate change had banned
bringing of cattle to an animal market for the
purpose of slaughter. The imminent roll-back
comes after the country witnessed a spate of
attacks on Muslims transporting cattle by self-
styled “gau-rakshaks”, with a recent incident
being of Umar Khan of Alwar, Rajasthan. He
was shot dead and his dismembered body
was left on the railway tacks by a group of
cow vigilantes when he was transporting cows
to his village.
In a one of its kind initiative, an Artificial
Intelligence-based web portal, Legit
Quest, has been launched to simplify and
boost legal research in the country.
Launched on the eve of National Law Day
(November 26), the website allows users to
browse through millions of cases and get
the most relevant results within seconds.
The web portal was launched by veterans of
the law world—Justice AK Sikri of the
Supreme Court, Justice Ravindra Bhat of the
Delhi High Court, Chairman of the Law
Commission of India Justice BS Chauhan.
Veteran jurist Ram Jethmalani is the patron,
adviser and investor of the portal. Senior
Supreme Court advocate Pradeep Rai was
felicitated at the launch.
AI-based web portal Legit
Quest launched
Govt may roll back ban on
sale of cattle for slaughter

Focus / Net Neutrality / TRAI Recommendations
NDIA, the biggest democracy in
the world, is intrinsically being
recognised for its thought leader-
ship in the information technology
space. Crores of people access the
internet in India today. Sometime
back, India had shown the courage to
say an emphatic “no” to data colonisa-
tion. It stood up for the right to access
the internet without any conditionality
as part of its policy-making.
The Telecom Regulatory Authority of
India (TRAI) had categorically rejected
the demands from some internet players
to provide for conditional access to
those Indians who had not yet come
online. Since then,
much water has
flowed under the
bridge. The Supreme
Court in the case of
Justice KS
Puttaswamy (Retd.)
and Anr versus Union
of India has categori-
cally held that a per-
son’s fundamental
right to life under
Article 21 includes the
right to privacy. In
fact, net neutrality is
a principle that is
dedicated to making
the internet a neutral
platform for the pro-
liferation of all kinds
of services offered by
various stakeholders.
Today, people are
dependent on the
internet and they
have a fundamental
right to access it. It
can only be curtailed
in accordance with procedure estab-
lished by law. This intrinsically means
that net neutrality provisions have to be
incorporated as part of India’s legal poli-
cymaking process.
In this regard, it is interesting to note
the recent recommendations of TRAI
concerning net neutrality. In a path-
breaking step, TRAI stood up for net
neutrality. It recommended that no per-
son should be discriminated against on
any ground in accessing the internet.
The salient features of the said rec-
ommendations are:
a) The licensing terms should be ampli-
fied to provide explicit restrictions on
any sort of discrimination in internet
access based on the content being
accessed, the protocols being used or the
user equipment being deployed. In this
context, it has been recommended that
content would include all content, appli-
cations, services and any other data,
including end-point information
that can be accessed or transmitted over
the internet.
b) The “discriminatory treatment” as far
as content is concerned would include
any form of discrimination, restriction
or interference, including practices like
blocking, degrading, slowing down or
granting preferential speeds or treat-
ment to any content.
c) Service providers should be restricted
from entering into any arrangement,
agreement or contract with any person
that has the effect of discriminatory
treatment based on content, sender or
receiver, protocols or user equipment.
d) The scope of the proposed principles
on non-discriminatory treatment
apply specifically to “Internet Access
Services”, which are generally available
to the public.
e) In order to remove any ambiguity,
Internet Access Services have been
defined.
f) Specialised services, i.e. services other
I
ABreathofFreshAir
ConsideringthatIndiahas
nolawsonnetneutrality,
theserecommendations,
ifimplemented,will
ensurethatnopersonis
discriminatedagainston
anygroundinaccessing
theinternet
By Pavan Duggal
OPEN ACCESS
Smartphones have taken
the internet within the
reach of more Indians
Anil Shakya

than Internet Access Services, which are
optimised for specific content, protocols
or user equipment, and where the opti-
misation is necessary in order to meet
specific quality of service requirements,
shall be exempted from the principles of
discriminatory treatment.
g) It has been recommended that DoT
may identify specialised services.
However, these may be offered by the
service provider only if they are not
usable (or offered) as a replacement for
Internet Access Services; and the provi-
sion of such services is not detrimental
to the availability and overall quality of
Internet Access Services.
h) Further, it has been recommended
that Internet of Things (IoT), as a class
of services are not excluded from the
scope of the restrictions on non-discrim-
inatory treatment. However, critical IoT
services, which may be identified by
DoT, and which satisfy the definition of
specialised services, would be automati-
cally excluded. Content Delivery
Networks (CDNs), which enable a
Telecom Service Provider (TSP) to deliv-
er content within its network without
going through the public internet, are
exempted from the scope of any restric-
tions on non-discriminatory treatment.
i) TRAI has further recommended that
Internet Access Service Providers may
take reasonable measurements for traf-
fic management, provided the same are
proportionate, transient, and transpar-
ent. They may also take reasonable
measures to preserve the integrity and
security of the network, for provision of
emergency services, implementation of
an order of the court or direction of the
government, or in pursuance of an
international treaty.
j) TSPs shall be required to declare their
Traffic Management Practices as and
when deployed and the impact it may
have had on users. The disclosure
requirements shall also include informa-
tion about specialised services.
k) The telecom regulator, keeping in
mind industry practices, further stipu-
lated that for monitoring and investiga-
tion of violations, a collaborative mecha-
nism be established in the form of a
multi-stakeholder body comprising
members representing different cate-
gories of TSPs and ISPs, content
providers, representatives from research
and academia, civil society and con-
sumer representatives.
Pending the consideration of these
recommendations, the Authority may
regulate the manner in which the cur-
rent licensing requirement of unrestrict-
ed access to all content on the internet
is implemented and enforced. These
recommendations, if accepted by the
government, categorically
close the doors for service
providers to discriminate
against their customers
based on various com-
mercial and other vectors.
In our country, where
users have a lot of chal-
lenges in terms of getting
promised internet speed
and redressal, these recommendations
come as a breath of fresh air. They pave
the way for the evolution of India as a
digital superpower and a knowledge
economy.
Net neutrality, if not handled proper-
ly, could impact the Digital India
Programme of the government. When
one looks at existing laws, one finds that
the issue of net neutrality has not been
mentioned. India’s mother legislation on
cyberspace issues is the Information
Technology Act, 2000. This has been
sought to be supplemented by means of
various regulations. None of them refers
to net neutrality.
The onus is on the government to
tackle the recommendations of TRAI.
There are stakeholders who are not
happy with the recommendations.
Stakeholders would need to be encour-
aged to take holistic perspectives on
these issues. In the long run, having
effective non-discrimination in internet
access services could pave the way for a
stronger digital data eco-system and
help in establishing India’s thought
leadership in cyberspace issues.
—The writer is a Supreme Court
advocate and a leading expert in
Cyberlaw, Cyber Security Law
& Mobile Law
TRAIhasrecommendedthatcontent
wouldincludeallcontent,apps,
servicesandanyotherdata,including
end-pointinformationthatcanbe
accessedortransmittedovertheinternet.
ON THE RIGHT TRACK
Minister of State for
Finance and Corporate
Affairs Arjun Ram
Meghwal (in turban) at
the Digital India Summit
PIB

India legal 11 December 2017

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