India Legal 02 October 2017

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RESIDENT Donald Trump, in his
maiden speech to the United Nations
General Assembly, has enunciated
what appears to be a dangerous new
war doctrine in which the interna-
tional rule of law would be subordinated to
the interests of the “sovereignty” of nation
states. This is a sharp departure from the con-
cept of nations coming together as stakeholders
in the quest for collective security and avoidance
of a Third War that could extinguish civilised
life as we know it.
He reiterated his tired campaign theme of
“America First” and actually urged all nations to
adopt this principle in the pursuit of narrowly
defined nationalist interests in a rant that The
New Yorker described as the dogma of identity
politics on steroids. The US President, who used
this hallowed international platform to annou-
nce that “our military will be the strongest it’s
ever been”, then actually proceeded to issue
threats to use it.
Note some of his most remarkable jingo-lin-
guistic flourishes: “Major portions of the world
are in conflict, and some, in fact, are going to
hell.” He called Iran “reckless” and a supporter
of forces (among them Al Qaeda) that “speak
openly of mass murder, vowing death to
America, destruction to Israel, and ruin for
many leaders and nations in this room”.
(That is tantamount to calling for a
regime change.) He promised he
would “totally destroy” North Kor-
ea and its leader Kim whom he
described as the “Rocketman on a
suicide mission” if they continued
pursuing their nuclear and missiles pro-
gramme. He described as an “embarrass-
ment” the Security Council and Nato-backed
nuclear deal with Iran initiated by his prede-
cessor President Obama. He threatened
military action in Venezuela “to help them
regain their freedom, recover their country,
and restore their democracy”.
This champion of alt truth democracy, who
continued to berate Iran and Cuba for repres-
sion and torture, sees nothing but benign tole-
rance in the regimes of Saudi Arabia and
Turkey. And never mind the alt fact that Al
Qaeda and ISIS, both Sunni outfits, revel in ter-
rorist murder of Shias who are championed by
Shia-majority Iran.
Trump’s most drawn-out theme was, howev-
er, straight out of the ultra right-wing media
organisation Breitbart News, headed by his for-
mer advisor Steve Bannon. Trump harped on
the need for greater sovereignty of all nations to
do whatever they pleased within their own bor-
ders: “The nation-state remains the best vehicle
for elevating the human condition,” he said.
(Read: The nation state solving its own prob-
lems as it sees fit is a far better than the collec-
tive security concept of the UN). In other wor-
ds, all nations are better off by building walls,
and never mind that this completely contradicts
Trump’s justifying punishing Iran, Cuba, Vene-
zuela and Korea on the basis of human rights
violations within their own walls.
T
he trouble is that when you contradict
history you get trapped by it. The world
is not a safer place after Trump’s speech.
It is infinitely more dangerous. It will not rein in
North Korea. Kim will be even more belligerent.
It will further destabilise the Middle-East by
freeing Iran from its commitment to allow inter-
national inspection of its nuclear facilities.
As Richard Haass, the current president of
the Council on Foreign Relations and the head
of the State Department’s policy-planning staff
under the George HW Bush Administration,
told American journalist Robin Wright: “The
defining challenges of the twenty-first century
are global in nature. That is what was missing—
whether proliferation or terror or climate cha-
nge or hacking or democratic disruption. A
pinched approach to sovereignty is inadequate.”
In her analysis which appears in The New
TRUMP’S
GEOPOLITICAL RECESSIONInderjit Badhwar
Letter from the Editor
P
4 October 2, 2017

Yorker, she also quotes Ian Bremmer, the presi-
dent of the Eurasia Group, a risk-consulting
firm, as saying that the long-term fallout from
Trump’s speech may be to accelerate identity
politics and anti-globalisation sentiments that
fuel so many of today’s conflicts. The world, he
said, has been headed toward a “geopolitical
recession… weakened global institutions can’t
respond quickly or effectively to challenges
{and} increase the prospects for more wars”.
Just as it is today, even in the 1950s, North
Korea had become the flashpoint for World War
III after it invaded the South and American
forces helped repel the invasion. Not many
Indians will remember that the war came to an
end when a newly independent India played a
critical role in brokering a ceasefire through the
United Nations. Prime Minister Nehru believed,
as an article of faith, that the UN was the only
venue for the resolution of international conflict.
He said at the time: “However difficult the path,
it has to be pursued by repeated attempts at co-
operation on the part of all nations. Once that
attempt is given up, the consequence can only
be a preparation for conflict on a world-wide
scale and ultimately, the conflict itself.”
India’s first prime minister was not the only
great statesman who clung to this belief. In
November 2001, another tall Indian leader,
Prime Minister Atal Bihari Vajpayee said in his
address to the 56th UN General Assembly:
“This fundamental and seamless linkage bet-
ween peace, security and development can be
recalled in the sage words of the great Indian
poet Rabindranath Tagore: From now onward,
any nation that takes an isolated view of its own
interests will run contrary to the spirit of the
New Age, and will know no peace. From now
onward, the anxiety that each country has for
its own safety must embrace the welfare of the
whole world.”
P
ossibly the best known Secretary General
of the organisation, Dag Hammarskjold,
once stated that the UN was not just a
product of do-gooders but a harsh reality. “The
day will come when men will see the UN and
what it means clearly. Everything will be all
right—you know when? When people, just peo-
ple, stop thinking of the United Nations as a
weird Picasso abstraction, and see it as a draw-
ing they made themselves.”
| INDIA LEGAL | October 2, 2017 5
NEW WAR
DOCTRINE
Trump harped on
the need for greater
sovereignty of all
nations to do
whatever they
pleased within their
own borders
UNI

Theworldisnota
saferplaceafter
Trump’sspeech.It
willnotreinin
NorthKorea.Kim
willbeevenmore
belligerent.Itwill
furtherdestabilise
theMiddle-Eastby
freeingIranfrom
itscommitmentto
allowinternational
inspectionofits
nuclearfacilities.
Past presidents who had used and proved
America’s might in war after war, still attested
to the superiority of the international covenants
of law and their instruments in avoiding future
human conflict and eliminating human suffer-
ing. Harry S Truman said the UN was designed
“to make possible lasting freedom and inde-
pendence for all its members”.
And former Vice President Hubert Humph-
rey could very well be answering Trump today
when he said many decades ago: “The heroes of
the world community are not those who with-
draw when difficulties ensue, not those who can
envision neither the prospect of success nor the
consequence of failure—but those who stand
the heat of battle, the fight for world peace
through the United Nations.”
Hearing Trump speak, many people across
the globe wistfully recalled one of the greatest
speeches delivered before the UN General
Assembly on September 25, 1961 following the
death of Hammarskjold. The speaker was
President John F Kennedy: “A noble servant of
peace is gone,” he said, “but the quest for peace
lies before us.
“The problem is not the death of one man—
the problem is the life of this organisation. It
will either grow to meet the challenges of our
age, or it will be gone with the wind, without
influence, without force, without respect. Were
we to let it die, to enfeeble its vigor, to cripple
its powers, we would condemn our future.”
J
FK’s stirring peroration is worth quoting at
length. Delivered at the height of the Cold
War and nuclear brinkmanship, it is prob-
ably more relevant today than it was then. In
the development of the UN, he said, “rests the
only true alternative to war—and war appeals
no longer as a rational alternative. Uncondi-
tional war can no longer lead to unconditional
victory. It can no longer serve to settle disputes.
It can no longer concern the great powers alone.
For a nuclear disaster, spread by wind and water
and fear, could well engulf the great and the
small, the rich and the poor, the committed and
the uncommitted alike. Mankind must put an
end to war—or war will put an end to mankind.
“So let us here resolve that Dag Hammars-
kjold did not live, or die, in vain. Let us call a
truce to terror. Let us invoke the blessings of
peace. And, as we build an international capaci-
ty to keep peace, let us join in dismantling the
national capacity to wage war.
“This will require new strength and new
roles for the United Nations. For disarmament
without checks is but a shadow-and a commu-
nity without law is but a shell. Already the
Letter from the Editor
FRIENDSHIPS OF
CONVENIENCE
Trump meets Saudi
Arabia’s King Salman
bin Abdulaziz
al-Saud during his
visit to the kingdom in
May this year
6 October 2, 2017
UNI

United Nations has become both the measure
and the vehicle of man’s most generous impuls-
es. Already it has provided—in the Middle East,
in Asia, in Africa this year in the Congo—a
means of holding man’s violence within bounds.
“But the great question which confronted
this body in 1945 is still before us: whether
man’s cherished hopes for progress and peace
are to be destroyed by terror and disruption,
whether the ‘foul winds of war’ can be tamed in
time to free the cooling winds of reason, and
whether the pledges of our Charter are to be ful-
filled or defied-pledges to secure peace, prog-
ress, human rights and world law.”
He concluded: “…But I come here today to
look across this world of threats to a world of
peace. In that search we cannot expect any final
triumph—for new problems will always arise.
We cannot expect that all nations will adopt like
systems—for conformity is the jailer of freedom,
and the enemy of growth. Nor can we expect to
reach our goal by contrivance, by fiat or even by
the wishes of all. But however close we some-
times seem to that dark and final abyss let no
man of peace and freedom despair. For he does
not stand alone. If we all can persevere, if we
can in every land and office look beyond our
own shores and ambitions, then surely the age
will dawn in which the strong are just and the
weak secure and the peace preserved.
“Ladies and gentlemen of this Assembly, the
decision is ours. Never have the nations of the
world had so much to lose, or so much to gain.
Together we shall save our planet, or together
we shall perish in its flames. Save it we can—
and save it we must—and then shall we earn the
eternal thanks of mankind and, as peacemakers,
the eternal blessing of God.”
Earlier in the speech, JFK made a frank
observation: “In this Hall, there are not three
forces, but two. One is composed of those who
are trying to build the kind of world described
in Articles I and II of the Charter. The other,
seeking a far different world, would undermine
this organization in the process.”
Kennedy’s speech was the articulation of
America’s forward-looking soft power at its best,
an America at its noblest, its most humble self,
a country with which any nation would want to
live in peace and to emulate. Trump’s speech
reflected victimhood, selfish aggrandisement,
Rambo-hood, a backward-looking bully-nation
whom any nation would shun. Small wonder
that China’s Xi, Russia’s Putin, and Germany’s
Merkel did not attend the debut performance of
an American President thumping his chest on
the world’s largest international stage.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Everythingwillbeallright—youknow
when?Whenpeople,justpeople,
stopthinkingoftheUnitedNations
asaweirdPicassoabstraction,andseeit
asadrawingtheymadethemselves.
—DagHammarskjold,SecretaryGeneralof
theUN,1953-61
Unconditionalwarcannolongerleadto
unconditionalvictory.... Foranuclear
disaster,spreadbywindandwaterand
fear,couldwellengulfthegreatandthe
small,therichandthepoor,thecommit-
tedandtheuncommittedalike.
—USPresidentJohnFKennedy
Howeverdifficultthepath,ithastobe
pursuedbyrepeatedattemptsatco-oper-
ationonthepartofallnations.Oncethat
attemptisgivenup,theconsequencecan
onlybeapreparationforconflictona
world-widescale.
—PrimeMinisterJawaharlalNehru

ContentsVOLUME. X ISSUE. 46
OCTOBER2,2017
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Technical Executive Anubhav Tyagi
War of Wages
Minimum pay may be a fundamental right, but the centre refuses to harmonise MGNREGA
wages with the statutory remuneration of agricultural labourers in states
16
LEAD
Deaths behind Bars
A bench has issued a slew of directions to the centre and states to improve the conditions
in jails so that unnatural deaths are eliminated
SUPREMECOURT
20
Pay to Become Civil Judge
Evidence of sale of question papers for the exam to recruit judicial officers in Haryana has
shocked judges who have scrapped it and ordered an SIT probe
COURTS
24
8 October 2, 2017

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside .........................10
Delhi Durbar ...................11
Courts.............................12
National Briefs .........14, 23
Media Watch ..................49
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
How Innocent Is a Retweet?
Arun Jaitley’s case against AAP’s Raghav Chadha raises legal
questions about whether the act is liable for defamation damages
26
With the UK’s Serious Fraud Office
seeking an independent probe into the
liquor baron’s case, the possibility of his
extradition stands further postponed
GLOBALTRENDS
46
Reproof for Lothario
A woman gets succour after a Delhi court orders her husband,
who reportedly married two more times, to pay her maintenance
28
Cry of the Rohingyas
The centre has hardened its stand on these refugees with an affidavit filed in the
Supreme Court saying they might have links with terror groups
38
New Face of Choppergate
The Delhi High Court’s refusal of bail to Shivani Saxena shines the
light on her alleged involvement in the AgustaWestland scandal
34
PROBE
How to Regulate Data Security
As the BN Srikrishna panel sets out to recommend a new law,
questions on how it would include right to privacy await resolution
36
FOCUS
Not the
Beggar’s Fault
A draft bill which aimed to decriminalise
this activity was abandoned by the
government after activists said it didn’t
adequately address poverty
42
ACTS&BILLS
Mallya’s Options
Parity in Promotion
With over 100 officers moving the top court over bias in promo-
tions, it’s time the army took a serious look at their complaint
30
DEFENCE
Simultaneous Is Impractical
While holding polls concurrently may save money, this
is not fully feasible, says ex-EC SY Quraishi
32
MYSPACE
HUMANRIGHTS

10 October 2, 2017
“
RINGSIDE
In its short history, Pakistan has become a geog-
raphy synonymous with terror. The quest for a
land of pure has actually produced ‘the land of
pure terror’. Pakistan is now ‘Terroristan’, with
a flourishing industry
producing and exporting global terrorism.
— Eenam Gambhir, India’s First Secretary
to the UN, at the 72nd session of the
UN General Assembly
Everything about every
part and organ of the hu-
man body is vegetarian.
When we put an alien
substance like meat into
the human body, we
become prone to disea-
ses…. First you eat meat,
then meat eats you.
—Women and Child
Development Minister
Maneka Gandhi, speaking
at the launch of a film
The Evidence-Meat Kills,
in Delhi
India is still a country that
has all the sectarian squab-
bles. If they don’t say, ‘Look
we are not going to be fight-
ing with each other but
rather we are going to get
on, become more tolerant
with each other and get on
with the task of modernising
the country’, they will simply
keep losing ground.
— Nobel laureate in
chemistry Venkatraman
Ramakrishnan, in
Cambridge, UK
Be it a motorcycle, car or
park, couples can be seen
behaving in a vulgar fash-
ion. They hug each other
as if the girl will eat the
boy or the boy will eat the
girl. It will be appropriate
to take action and put
such couples behind
bars before anything
wrong occurs.
—BJP MP Sakshi Maharaj,
speaking to mediapersons,
in Bharatpur
It was like a fatwa issued
against me from the pow-
ers that be. Even if I gave
a hit, work wouldn’t fol-
low. Shootout at
Lokhandwala became a
huge hit but I sat at home
for a year after that.
—Actor Vivek Oberoi, on
his career debacle follow-
ing a rift with Salman
Khan over Aishwarya Rai,
in India Times
Quite frankly, the Congress
party could have done a lot
better. But we are better
than the NDA, which is
absolutely centralised. Still,
we could do much better
ourselves and law-making
should be part of the
national discourse.
—Congress Vice-President
Rahul Gandi, in Princeton
I think instead of using this
emotive term as it is highly
charged, it is better just to
say Muslims. It’s just a
description that nobody
can deny. We are talking
about the Muslim commu-
nity in the Rakhine state,
and I do not see any point
using terms that inflame
passions further.
—Myanmar state counselor
Aung San Suu Kyi, on why
she refrained from using the
term Rohingyas in her
recent address, to ANI

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
PROFESSIONAL
APPROACH
The elevation of YC Modi as the next head of
the National Investigation Agency (NIA) is fur-
ther proof that Prime Minister Narendra Modi
is obsessed with appointing Gujarat cadre
officers in top positions. Modi is the 14th offi-
cer from Gujarat to be given a vital appoint-
ment at the Centre. The PM’s favoritism may
be rooted in factors like loyalty and bureau-
crats he has worked with before, but the lat-
est appointment is controversial: YC Modi is
a senior IPS officer who investigated the
assassination of former Gujarat home minis-
ter Haren Pandya in 2003. The investigation,
headed by Modi, led to the conviction of 12
persons under the
Prevention of Terrorism
Act. They were all sub-
sequently acquitted by
the Gujarat High Court
in 2011, after spending
eight years in jail, with
Justice DH Waghela
observing: “What
clearly stands out…is
that the investigation in the case of murder of
Shri Haren Pandya has all throughout been
botched up and blinkered .... The investigat-
ing officers concerned ought to be held
accountable for their ineptitude resulting
into injustice...”
The newly formed team
around Rahul Gandhi will be
targeting young corporate-
types and professionals once
the Congress vice-president
returns from his US tour.
Congress MP Shashi Tharoor
has been put in-charge of the
initiative as head of the newly
launched Indian Professional
Congress (IPC). It is a virtual
U-turn from the traditional
Congress vote-bank of
minorities and backward
classes but it is in line with
his latest image-building
exercise where he is engag-
ing with heads of think-tanks,
Ivy League colleges and IT
professionals. Tharoor is
busy setting up new chapters
of the IPC starting with
India’s IT hub, Bengaluru
where Rahul will hold his first
Town Hall interaction with
members. A membership
drive is currently on and it
costs `1,000 for an individual
to join. The Congress feels
that IT and other corporate
professionals were backing
Modi but may have some
doubts considering the nega-
tive feedback on the
government’s eco-
nomic policies.
There will be four
regional centres
and till last week,
around 1,000
professionals
had signed.
It is now an open secret; that economist
Bibek Debroy who had joined Niti Aayog,
has put in his papers over differences he
had with other senior officials over certain
economic policies. He had joined the gov-
ernment’s premier think-tank which replaced
the Planning Commission, as one of three
full-time members (Amitabh Kant is the CEO)
and initially was supportive of the govern-
ment. Of late, there has been a discernible
change. He was dismissive of the Bullet Train
on the day it was inaugurated by the Prime
Minister, and was quoted as saying that
“95% people are those that travel in unre-
served compartments, and not Rajdhani or
Shatabdi. To them, this day counts for noth-
ing."(Debroy had done a comprehensive
report on the Railways for Niti Aayog).
However, in order to avoid the embarrass-
ment of a high-profile economist quitting the
government, Debroy has reportedly been
offered chairmanship of the Prime Minister’s
Economic Advisory Council which is to be
revived. The PM, it seems, wants a more
independent view of the economy and
impact of economic policies, an area where
the NDA government is seen as vulnerable.
Another surprise bureaucratic elevation, that
of Alphons Kannanthanam, as Union Minister
of state for Tourism and Information
Technology, has not started with any
great promise. The former bureau-
crat from Kerala put his foot firmly
in his mouth when he dismissed the
growing criticism of rising fuel
prices by saying: “Who
buys petrol? Somebody
who has a car or a bike
and certainly he is not
starving. Somebody
who can afford to pay, has to pay.” It was a
ridiculous statement to make, considering
that transport of goods across the country is
largely by road and high fuel prices (at a
time when global prices are at an all time
low) will adversely impact inflation. His
wife literally added fuel to the fire when
she gushed to a Kerala TV Channel about
how she and her husband were such
good friends with Narendra Modi
who “always has a hug for my
husband”. Earlier, Alphons’s beef
remark to foreign tourists
had created a similar embar-
rassment.
FOOT IN MOUTH
GUJARAT FIXATION
FRICTION AT NITI AAYOG

Two Allahabad High Court judges are
under the scanner of the Supreme Court
for violating its order related to MBBS admis-
sions in medical colleges for 2017-18. A
Lucknow bench of the High Court, compris-
ing Justice SN Shukla and Justice Virendra
Kumar, had allowed a private medical college
in UP to admit students for MBBS for the
same year. However, the apex court had
categorically asked all high courts not to go
for any interim order to colleges for MBBS
admissions for that year.
According the media reports, the probe
agencies have intensified their investigation
to find out the reason for such intransigence.
The Chief Justice of India, Dipak Misra,
hasn’t taken kindly to such a conduct and
has called for a scrutiny. He may take tough
action against them if found that the judges
have prima facie defied the Court order.
The Medical Council of India had app-
roached the apex court challenging the
Lucknow bench order. The apex court stayed
the High Court order and ruled that the
students admitted against its order cannot
study further.
The Chief Justice of India,
Dipak Misra, made it
clear that only advocates-
on-record will be permitted
to mention their cases in
front of him for an out-of-
turn listing and hearing. He
took the decision after a jun-
ior advocate, PV Dinesh,
brought to his notice that
senior advocates do not wait
in queue but break the line
for “mentioning” cases. As a
result, many junior advo-
cates do not get a chance to
plead for an urgent hearing
despite having stood in
queue for hours, he alleged.
He also pointed out that the
practice of senior advocates
pleading for early listings
was against the tradition of
the highest court.
“Mentioning” matters in the
top-court is an age-old prac-
tice and convention.
Advocates-on-record are
those lawyers who pass a
examination conducted by
the apex court, and all peti-
tions in the top court can
only be filed through them.
Say no to
Aadhaar card
Courts
At a time when the central gov-
ernment has made Aadhaar
card mandatory for all citizens
and there is hardly any scope to
avoid it, a man from Mumbai has
stood his ground. John Abrahim
and his family do not have an
Aadhaar card despite having
faced tough times. His son could
not get admitted to a college and
has had to face hurdles in getting
treated in a hospital, his pension
benefits may be blocked, but he
remains unfazed. His contention:
the system can’t compel him to
do something against his wishes.
The Bombay High Court did
not accede to his plea that his
son be admitted in St. Xavier’s
College without an Aadhaar card
after a court order. The Court
even asked him to submit the
card, assuring that it will consider
asking the college to take him.
But Abrahim flatly refused.
Abrahim has now approached
the Supreme Court for redressal,
arguing that his son’s fundamen-
tal rights (in this case Right to
Education) had been violated. The
top court has sought a response
from the Maharashtra government
on the issue within two weeks.
Allahabad
High Court
judges face
action
12 October 2, 2017
Early hearing
pleas only
for AoRs
The Calcutta High Court struck down the
Mamata Banerjee government’s ban on
idol immersion after 10 pm on September 30
and throughout October 1, due to Muharram.
The Court, on the contrary, permitted immer-
sion to take place on all days till 12 am from
September 30 onwards. The decision was
arbitrary, sans any evidence to back it up,
and merely based on the fear that law and
order could be affected as both Muharram
and Bijoya Dashami fell on consecutive days,
the Court observed. It, however, directed the
police authorities to ensure that separate
routes are designated for both.
Immersion not an issue
— Compiled by Prabir Biswas

Briefs
Petroleum Minister
Dharmendra Pradhan has
proposed a one-year term
instead of the regular five-yearly
one for Shashi Shanker, next
chairman-and-managing direc-
tor of public sector undertaking
ONGC (Oil and Natural Gas
Corporation). Shanker, who is
ONGC’s director (technical), will
replace incumbent Dinesh
Sarraf. He has also proposed to
review Shanker’s performance
every quarter, instead of after
the first year, depending on
which the ministry would
decide if the incumbent would
continue for the balance of the
tenure. In February 2015,
Shanker was suspended for
alleged irregularities in an
unawarded `23-crore tender for
buying 21 blowout preventers
but was reinstated in July. Saraf,
meanwhile, has been shortlisted
to head the downstream regula-
tor Petroleum and Natural Gas
Regulatory Board on superan-
nuation.
Now, a new ONGC
chief yearly?
—Compiled by India Legal Team
18TamilNaduMLAsdisqualified
ED summons Rabri Devi again
in railways scam
In a notification issued by
the law ministry, 25 new
additional judges have been
appointed—19 to the Alla-
habad High Court and six
to the Calcutta High Court.
Names cleared for the Alla-
habad High Court are Salil
Kumar Rai, Rahul Chatur-
vedi, Rajiv Joshi, Rajesh
Singh Chauhan, Jayant
Banerji, Irshad Ali, Saral
Srivastava, Jahangir Jam-
shed Munir, Rajiv Gupta,
Ajit Kumar, Rajnish Kumar,
Abdul Moin, Rajeev Misra,
Dinesh Kumar Singh, Vivek
Kumar Singh, Chandra
Dhari Singh, Neeraj Tiwari,
Siddharth and Ajay Bhanot.
Those for the Calcutta High
Court, meanwhile, include
Protik Prakash Banerjee,
Rajasekhar Mantha,
Sabyasachi Bhattacharyya,
Moushumi Bhattacharya,
Shekhar R Saraf and
Rajarshi Bharadwaj. These
are the first appointments
under CJI Dipak Misra.
Tamil Nadu Assembly
Speaker P Dhanapal has dis-
qualified 18 MLAs of the TTV
Dhinakaran camp on charges of
having “voluntarily given up
their membership from the
AIADMK” by submitting a peti-
tion to Governor C Vidyasagar
Rao, communicating their lack
of confidence in the CM. The
decision came just two days
before a high court deadline for
a floor test by Chief Minister
E Palaniswami. The rebel MLAs
and the opposition DMK have
challenged the speaker’s deci-
sion. The MLAs moved the
Madras High Court, calling their
disqualification illegal after
which the Court extended its
stay on the floor test. By-polls to
the 18 constituencies lying
vacant after the disqualifications
have been withheld by the Court.
25 additional judges
appointed
Punjab Chief Minister,
Captain Amarinder Singh,
has written to the prime minis-
ter demanding incentives for
farmers to stop them from
engaging in stubble burning.
The CM had earlier written a
letter to PM Modi in July and
requested a bonus on paddy
procurement to compensate
farmers for the additional mon-
ey required to dispose of paddy
straw. Stubble-burning after
the kharif and rabi harvests
causes air pollution in north
India, leading to health prob-
lems. Steps taken so far to deter
farmers from stubble burning
have proved futile.
Punjab CM moots
green bonus
14 October 2, 2017
The Enforcement Directorate has sum-
moned former Bihar chief minister Rabri
Devi. Along with the CBI, it’s probing irregu-
larities in tender awards to IRCTC hotels when
Rabri’s husband, Lalu Prasad, was railway
minister. The CBI had filed an FIR in July
naming Lalu, Rabri and son Tejashwi as
accused. Tejashwi and Rabri are accused of
running benami companies for the purpose of
laundering money received through bribes. ED
had summoned Rabri earlier but she had
sought time, owing to personal commitments.

Lead/ MGNREGA
RIME MINISTER Nar-
endra Modi, his colleagues
in the NDA government
and the BJP never tire of
reiterating their slogan,
Sabka Saath, Sabka Vikas
or of talking about Antyodaya, a doc-
trine which talks about the “rise of the
last person”.
Yet, if draft recommendations of the
Nagesh Singh Committee constituted by
the ministry of rural development are
anything to go by, it is evident that the
government’s plank of working for the
“last man” is confined to poll slogans.
This Committee was constituted to
look into harmonising minimum wages
prescribed under the Mahatma Gandhi
National Rural Employment Guaran-
tee Act (MGNREGA) with statutory
minimum wages of agricultural labour-
ers in states.
While the Committee submitted its
report to the centre in July 2017, the
government has been steadfast in reject-
ing demands for making public the rec-
ommendations that were accepted. But
there has also been no attempt by the
government to deny or counter reports
that have been carried in some sections
of the media about the final outline of
the Committee’s report. It seems that
the final recommendations have end-
orsed the draft report’s view that “there
is no compelling argument for conver-
gence of minimum wages for agricul-
tural labour and wages notified for
MGNREGA workers”.
ACT’S AIM
MGNREGA 2005 guarantees every
rural household a minimum of 100 days
of manual work per year at the notified
wage rate. Much of the success of this
Act depends on the rate at which work-
ers are paid.
Schisms between MGNREGA and
the issue of minimum wages have exist-
ed since the drafting of the legislation.
The draft, as prepared by the National
Advisory Council, stated that “in no cir-
cumstance shall labourers be paid less
than the statutory minimum wage of
agricultural labourers applicable in the
State”. But the Bill that was finally pass-
ed by parliament included a “non-
obstante” clause which stated that
“notwithstanding anything contained in
the Minimum Wages Act 1948, the
Central Government may, by notifica-
tion specify the wage rate for the pur-
poses of this Act”. Also, `60 per day was
set as the floor MGNREGA wage.
In the initial years of MGNREGA,
workers were paid the state minimum
wage for agriculture or `60, whichever
P
Despitetheapexcourtsayingthatminimumpay
isafundamentalright,thecentrehasmadeno
attempttoharmonisethesewithstatutoryminimum
remunerationofagriculturallabourersinstates
By Ankita Aggarwal
16 October 2, 2017
The
War of
Wages

was higher. However, in January 2009,
the Ministry of Rural Development
(MoRD) used Section 6(1) of the
employment guarantee Act to delink
MGNREGA from minimum wages.
Also, the MGNREGA wage was frozen
at a real value of `100 at the December
2008 price level (states giving MGNRE-
GA wages of a higher amount were allo-
wed to maintain the wage levels).
This move was met with fierce oppo-
sition from activists, jurists and labour
groups and the matter was taken to
the Andhra Pradesh and Karnataka
High Court. The Andhra Pradesh High
Court suspended the January 2009
EXPLOITING POVERTY: (Above) MGNREGA
workers in several states have been working
at less than the minimum wages; (right)
Activist Aruna Roy speaking at a MGNREGA
protest in Delhi recently
Ankita Aggarwal
nregapaschimmedinipur.com

notification and the government was
instructed to pay the state minimum
wage. The central government main-
tained that the difference between the
state minimum wage and the MGNRE-
GA wage should be paid by the state
government. States have refused to con-
tribute towards the payment of wages as
the Employment Guarantee Act clearly
puts the entire financial burden of
wages on the central government.
LEGALITY QUESTION
On September 23, 2011, the Karnataka
High Court held that the Karnataka
Minimum Wages Act prevailed over the
Employment Guarantee Act and accord-
ingly, instructed payment of minimum
wages to MGNREGA workers. The
centre challenged the High Court rul-
ing on the grounds of fiscal constraints,
but the Supreme Court re-fused to stay
this judgment.
Payment of less than the minimum
wages raises serious questions of legality
and the Supreme Court has recognised
this as a fundamental right. In Sanjit
Roy vs State of Rajasthan, the apex
court stated that “where a person pro-
vides labour or service to another for
remuneration which is less than the
minimum wage, the labour or service
provided by him clearly falls within the
meaning of the words ‘forced labour’
and attracts the condemnation of Article
23…. if anything less than the minimum
wage is paid to him, he can complain of
violation of his fundamental right under
Article 23”.
The judges also said: “The State can-
not be permitted to take advantage of
the helpless condition of the affected
persons and extract labour or service
from them on payment of less than the
minimum wage.” Justices PN Bhagwati
and RS Pathak based their judgment on
a previous year’s ruling in People’s Uni-
on for Democratic Rights and Ors
vs Union of India and Ors (1982),
in which the Supreme Court
included “compulsion arising
from hunger and poverty, want
and destitution” in the definition
of “forced labour”.
In July 2009, the central gov-
ernment’s labour department put
on record that workers cannot be
paid less than the minimum
wages. A year later, the Central
Employment Guarantee Council’s
Working Group on Wages also
made an emergency recommen-
dation of paying MGNREGA
wages in accordance with the
Minimum Wages Act and doing
away with Section 6(1) of the
employment guarantee Act.
CENTRE’S RIGID STAND
The central government, however,
turned a blind eye to the Court
rulings and expert opinion within
and outside the government. It
made no attempt to harmonise
MGNREGA wage rates with min-
imum wages. As a result, MGN-
REGA workers in several states
have been working at less than their
state’s minimum wage at various points
in time. For instance, in 2015-16, the
MGNREGA wage rates of 15 states were
lower than the corresponding agricul-
tural minimum agricultural wages (see
box). The difference was highest in
Telangana, where the MGNREGA wage
rate was `116 less than the state’s mini-
mum agricultural wage.
In 2013, MoRD constituted a com-
mittee under the chairmanship of Prof
Mahendra Dev to look into the matter of
MGNREGA wage revision. Two years
later, the Committee recommended that
“the baseline for MGNREGA wage
indexation from 2014 may be the cur-
rent minimum wage rate for unskilled
agricultural labourers fixed by the states
under the Minimum Wages Act or the
current MGNREGA wage rate, whichev-
er is higher”. The central government
did not accept even the conservative rec-
ommendations of this committee and
18 October 2, 2017
Lead/ MGNREGA
“Thecentrecannotjustify
notmakingMGNREGA
wagesatparwithMinimum
Wagesonthegroundthat
statesdonotfollowauni-
formmethodologyindeter-
miningthelatter.Thisisa
violationofthepowers
giventostatesunderthe
MinimumWageAct,1948.”
—GautamMody,general
secretary,NewTradeUnion
Initiative
“Curiously,budgetary
constraintsariseonly
whenitcomestoindexa-
tionofwagesofthoseat
thebottomoftheincome
scale.Budgetarycon-
straintshavenotstopped
dearnessallowancesof
the‘better-off’frombeing
indexed.”
—ReetikaKhera,associate
professor,economics,IIT,
Delhi
“InJharkhand,theNREGA
wageiscurrently`62less
thanthestate’sminimum
wage.Thegapbetween
thesetwowagerateswill
continuetoexistiftherec-
ommendationsofthe
NageshSinghCommittee
areaccepted.Thiswilldo
greatinjusticetotherural
workersofthestate.”
—JamesHerenj,convenor,
JharkhandNREGAWatch

these were shot down by the finance
ministry, as revealed in a Right to
Information query.
Once again, the ministry constitu-
ted a committee on the alignment of
MGNREGA wages with the minimum
agricultural wages, this time headed
by the Additional Secretary (MoRD),
Dr Nagesh Singh. The committee has
given four specious arguments to
endorse delinking MGNREGA wages
with the minimum wages for agricul-
tural labour in states.
WIDE VARIATIONS
The most prominent of the Committee’s
arguments is the lack of a uniform
method followed by states in determin-
ing their minimum agricultural wages.
The requirement of agricultural workers
to work for 1-1.5 hours more daily than
MGNREGA workers and the wide
variations in rates for them across states
are cited as other reasons for not consid-
ering it necessary to pay MGNREGA
workers at least at par with agricultu-
ral workers.
Perhaps the most ludicrous justifica-
tion cited by the Committee for not
adhering to the Minimum Wages Act is
the failure of the government to enforce
minimum agricultural wages, especially
for women. The Committee seems to
imply that the gender equality in pay-
ment of MGNREGA wages compensates
for not paying the minimum wage under
the Employment Guarantee Act.
The delinking of MGNREGA with
minimum wages has not only led to a
serious breach of law, but has also
severely undermined the ability of the
Employment Guarantee Act to provide
some economic relief to rural house-
holds. MGNREGA workers have been
victims of immense injustice for almost
a decade now. They have had to work at
stagnating real (at times even nominal)
wages, suffer chronic delays and face
routine violations of their other legal
entitlements under the Act.
The appointment of the Nagesh
Singh Committee after rejecting the
modest recommendations of the Mah-
endra Dev Committee for no apparent
reason was a clear signal from the min-
istry of its lack of intent to determine a
fair and constitutionally valid wage for
MGNREGA workers.
It is hard not to conclude that the
NDA government led by Prime Minister
Modi wants to weaken MGNREGA to
the point that workers themselves
decide to reject this programme for its
failure to provide any economic support
worth toiling seven hours daily.
The writer is co-convener of NREGA
Sangharsh Morcha
StateswithahigherminimumwagethantheMGNREGAin2015-16
WageRate(Rs)
Telangana
Tripura
AndhraPradesh
Punjab
Sikkim
Jharkhand
Mizoram
WestBengal
MadhyaPradesh
Odisha
Bihar
TamilNadu
Goa
Rajasthan
HimachalPradesh
State Minimum Wage MGNREGA wage rate
300
250
200
150
100
50
0
296
180
262
167
261
180
210
220
167
212
162
220
183
206
174
187
159
200
174
186
162
205
183
225
208
189
173
170
162
266
Source: Data collected from respective state governments
Rajender Kumar

is a realisation that first-time offenders
are more likely to find it difficult to
adjust with prison conditions and may
think of harming themselves
out of desperation.
The Court also proposed to extend
the time or frequency of meetings bet-
ween prisoners and their family mem-
bers and lawyers by encouraging the use
of phones and video-conferencing.
More significantly, the Court directed
state governments to include eminent
members of civil society in the Board of
Visitors, who could initiate prison ref-
orms, including rehabilitation of prison-
ers. The Court also asked the authorities
to study and emulate the system of open
prisons which has been successfully
experimented in Shimla and Delhi.
SIGNIFICANT CASE
While these steps have the potential to
reduce the number of unnatural deaths
in prisons, official data on which is still
unclear, their significance for the future
of prison administration is enormous.
The Supreme Court first took notice
of the case in 2013 when former Chief
Justice of India RC Lahoti wrote a letter
to his successor, bringing to his atten-
tion the incidence of unnatural deaths
Supreme Court/ Prison Reforms
20 October 2, 2017
N September 15, a Sup-
reme Court bench of
Justices Madan B Lokur
and Deepak Gupta gave a
momentous judgment to
improve the living condi-
tions in prisons. It issued a slew of dir-
ections to the centre and states in
defence of prisoners’ rights.
First, it requested the chief justice of
each high court to register a suo motu
public interest petition with a view to
identify the next of kin of prisoners who
had died an unnatural death since 2012,
and award suitable compensation, in
case adequate compensation has not
already been awarded.
Secondly, the Court directed the sta-
tes to appoint counsellors and support
persons, particularly for first-time
offenders and involving the services of
recognised NGOs. This is because there
in prisons. He also stressed the need to
improve living conditions in jails so that
prisoners could live a life of dignity.
Chief Justice Lahoti’s letter was sub-
sequently treated as a public interest lit-
igation, and notices were issued to all
states and Union Territories to submit
written responses on the condition of
prisons. The Supreme Court warned
that it might be compelled to summon
chief secretaries/ chief administrators of
those states and Union Territories which
did not file their responses on the issue.
On March 13, 2015, the Social Jus-
tice Bench of Justices Madan B Lokur
and UU Lalit began to hear the case.
The bench was shocked to find that the
living conditions in prisons were miser-
able despite a grant of `609 crore under
the 13th Finance Commission for their
improvement. The bench asked the cen-
tre to explain how this grant was utilised
and how much of it was given to states
under the 14th Finance Commission.
As the prisoner population in the
country mostly comprises undertrials,
A Life of
Dignity
Behind
Bars
Inalandmarkjudgment,the
apexcourthasissuedaslew
ofdirectionstoimproveliving
conditionsinprisons
By
Venkatasubramanian
O
REHABILITATION OR RETRIBUTION?
The philosophy of India’s criminal justice
system is based on reform, but in practice,
it’s deterrence that gets precedence
Representative Image: Anil Shakya

the Court wanted to know how many
of them were languishing in prisons
mainly on account of their inability to
provide adequate surety for bail, and
how many had committed compound-
able offences.
The bench made it clear that it was
not necessary or compulsory that an
undertrial must remain in custody for at
least half the period of his maximum
sentence only because the trial had not
been completed in time.
UNDERTRIALS LANGUISHING
While doing so, the bench showed its
concern for the children of women pris-
oners, and directed the home ministry
to amend the Model Prison Manual to
provide for a crèche for them. The ben-
ch found to its dismay that many under-
trials were granted bail, but were unable
to furnish the bail bond, thus leading to
more overcrowding in prisons and
affecting their psychological condition.
In Maharashtra alone, the bench was
told, there were 797 undertrials who
were entitled to bail and 503 of them
were indeed released with the efforts of
the State Legal Services Authority.
It is at this point that the bench app-
ointed Gaurav Agrawal, a young and
dynamic advocate, as amicus curiae in
the case, to assist the Court.
The bench came to know from him
that there were several jails where over-
crowding was more than 150 percent.
An excessive prison population, needless
to say, has its own problems of hygiene,
sanitation, management, discipline, and
the like.
The Supreme Court continued to
emphasise in many of its rulings that a
person, while in custody, should not be
stripped of his fundamental right under
Article 21 of the constitution. The res-
trictions imposed on a prisoner have the
sanction of law by which his enjoyment
of fundamental rights is curtailed, but
his basic human rights should not be
crippled by the police treating him in an
inhuman manner.
The Court, in the meantime, also
began to monitor unnatural deaths of
prisoners while in custody, gross inade-
quacy of prison staff and their inade-
quate training. The bench came to know
that the average suicide rate in prisons
is over 50 percent more than the num-
ber reported among the non-prison
population.
Agrawal told the Court that merely
because a person is in prison, it does not
mean that he should be cut off from the
outside world. If a prisoner is allowed
to maintain contact with the outside
world, it would substantially reduce the
feeling of isolation and reduce the possi-
bility of any harmful activity, the Court
was told.
On September 15, Justices Lokur
and Deepak Gupta in their judgment
emphasised that the central govern-
ment, despite constitutional limitations
imposed by prisons being a state sub-
ject, should share its expertise and give
guidance to the state governments.
Attorney General KK Venugopal
expressed a bizarre view during the
hearings that state governments have
other development priorities, which
require greater attention than prison
reforms. The bench made it clear to him
that Article 21, which applies equally to
prisoners, cannot be put on the back-
burner and as mentioned in the Nelson
Mandela Rules, even prisoners are enti-
tled to live a life of dignity.
NELSON MANDELA RULES
The UN General Assembly adopted the
Standard Minimum Rules for providing
internationally accepted guidelines for
implementation by prison administra-
tors. They are called Nelson Mandela
Rules in honour of Nelson Mandela, the
late South African president, who spent
most of his life in prison during the
apartheid regime. Although these rules
are not binding on nation states, the
recognition given to them by the Indian
Supreme Court is significant and
accords them legal sanctity.
The Court made it clear that no
state government can shirk its
TheSupremeCourthasempha-
sisedinmanyofitsrulingsthata
person,whileincustody,should
notbestrippedofhisfundamen-
talrightunderArticle21.
TEARFUL MEETING
A prisoner meets his daughter in jail
UNI

ments that prisoners cannot be treated
as chattel.
WRETCHED CONDITIONS
More shocking is a finding by the
Comptroller and Auditor General of
India that the hospital in Tihar Jail,
Delhi, was ill-equipped to handle any
emergency as there was a shortage of
doctors and other medical staff ranging
from 18 percent to 62 percent. The
Court also noted with concern another
finding—that essential medicines were
not available for a period ranging from
one to 34 months.
The Supreme Court in its judgment
also reflected on the larger question of
what leads to violence in prisons and
responsibilities for providing better
facilities to prisoners, and if a state is
unable to do so, it should be far more
circumspect in arresting and detaining
persons, particularly undertrials who
constitute the vast majority of those in
judicial custody.
State governments and the prosecu-
tion do not have to oppose every bail
application, nor do they have to ask for
the remand of every suspect pending
investigation, the bench said. More
importantly, it reminded the govern-
unnatural deaths. The Court reasoned
that the philosophy of our criminal jus-
tice system is based on reformation and
rehabilitation of prisoners, but in prac-
tice, it is the theory of retribution and
deterrence which gets precedence. The
prohibition of handcuffing and solitary
confinement are instances of our em-
phasis on reformation, but similar
adherence to this theory is missing in
other aspects of prison administration,
the Court observed.
As the Court continues to monitor
the implementation of its directions
without disposing it, one hopes to see
further progress in ensuring the dignity
of prisoners.
22 October 2, 2017
(Fromleft)TheSCbenchofJusticesMadanBLokurandDeepakGupta
tooknoteoftheletterthatformerCJIRCLahotihadwrittentohissuc-
cessorin2013,onthematterofunnaturaldeathsinprisons.
Supreme Court/ Prison Reforms
POSITIVE FOCUS: Several prisons have
taken initiatives for the emotional well-being of
inmates, like introducing yoga, meditation
and sports
Dasna Jail, Ghaziabad: In Septem-
ber 2017, undertrial Hazi Jawed (27)
died here within four days of his
arrest. He was allegedly beaten up.
Byculla Jail, Mumbai: In June
2017, Manjula Shette (40) died at the
women’s prison here. Inmates allege
that she had died after being assault-
ed by prison guards.
Puzhal Central Prison, Chennai: In
September 2016, P Ramkumar, a sus-
pect in the murder of an Infosys
techie, allegedly committed suicide.
Bhopal Central jail: Eight members
of the banned Students Islamic
Movement of India were killed in an
encounter after they escaped from the
jail in 2016. Political parties alleged
the deaths were staged.
Tihar Jail: In March 2013, Ram
Singh, an accused in the Nirbhaya
case, allegedly committed suicide by
hanging himself from the ceiling.
Tihar Jail: Businessman Rajan Pillai
died in July 1995 within a week of his
arrest due to complications from cir-
rhosis of the liver. He was denied
medical treatment.
SuspiciousDeaths
UNI

Briefs
The Doda district administra-
tion has banned the entry of
outsiders without police registra-
tion for two months. The move
comes three days after Gandoh
subdivisional magistrate Dil Mir
Choudhary issued a similar order
banning entry of outsiders there
without prior permission.
Citing braid-cutting incidents
that have triggered a “wave of
terror” among people, District
Magistrate Bhawani Rakwal has
imposed a ban on the entry of
“unknown persons, scent sellers,
beggars, street hawkers and
labourers from outside the state
without their registration at the
concerned police station/police
post’’. The order under Section
144 of the CrPC shall remain in
force for two months.
A copy of the order was sent
to the Doda SSP, requesting him
to direct the officers in charge of
all police stations and posts to
implement the decision. Village
defence committees will also be
activated in their concerned
areas of jurisdiction to prevent
such incidents.
Doda district bans
entry of outsiders
—Compiled by India Legal Team
Anti-cyberfraudbillroundthecorner
The Noida Authority has filed
a claim before the National
Company Law Tribunal for `650
crore against Amrapali Silicon
City Pvt Ltd to recover dues
from a project wherein land was
given to it on lease. Amrapali
owes the Authority a total of
`1,200 crore. Silicon City. in
Noida’s Sector 76, has over
4,000 flats which were to be fin-
ished by the end of 2013 but
even four years past the dead-
line, Amrapali is yet to finish the
work and hand over possession
to homebuyers. Amrapali is
already facing insolvency pro-
ceedings, initiated on a plea by
the Bank of Baroda. It owes BoB
`55 crore.
Noida moves NCLT against Amrapali
The Assam government is set to bar
those having more than two children
from being elected or nominated to pan-
chayat and other local body elections as well
as government jobs, according to a resolu-
tion on its new population policy, passed by
the assembly. Assam Health and Family
Welfare Minister Himanta Biswa Sarma,
while moving the resolution, said that serv-
ice rules will soon be changed to give effect
to the two-child policy for state govern-
ment employees.
The policy, which seeks to arrest Assam's
population growth through socio-economic
and health interventions, states that it
would also propose to the centre to include
the two-child norm as a criterion for anyone
seeking to contest assembly elections.
The finance ministry has been asked to
look at a possible Digital Payments
Act in the wake of rise in the number of
cyber fraud cases post demonetisation. At
a high-level meeting chaired by home
minister Rajnath Singh, trends relating to
online financial transactions, which as
per RBI data grew from 255
crore in 2013-14 to 998
crore in 2016-17 and are
expected to rise fur-
ther to 2,500 crore in 2017-18, were
analysed. An inter-ministerial committee
comprising representatives of the home
ministry, ministry of electronics and infor-
mation technology, RBI, intelligence, tele-
com and financial services will be formed
to assess risks and make recommenda-
tions. The committee will also have two
members from banks and e-wallet compa-
nies. A standard protocol for e-wallet
companies is also being contemplated.
Assam enforces two-child norm
The Haryana government will soon
bring in a new education act to focus
on safety, infrastructure and curriculum in
schools. The draft act is being formulated
in collaboration with the Federation of
Indian Chambers of Commerce and
Industry and a Karnataka-based firm and
will prescribe penalties for schools that
violate safety norms. According to addi-
tional chief secretary, school education,
KK Khandelwal, the new act
will cover all government, pri-
vate, aided and unaided sch-
ools. The move comes in the
wake of the murder of seven-
year-old Pradhyumn Thakur at
Ryan International
School in
Gurugram.
Haryana ponders law on
schools safety

VEN as the process for selec-
tion of civil judges in Har-
yana and Punjab recently
came in for high praise as it
was being conducted under
the direct supervision of the
High Court, a new development has left
a black mark on the judicial system.
The Punjab and Haryana High Court
has found shocking evidence of corrup-
tion in the recruitment of judicial offi-
cers in Haryana, forcing it to order an
FIR and constitution of a Special
Investigation Team to work under its
Courts/ Punjab and Haryana/ Recruitment Scandal
24 October 2, 2017
direct supervision. The exam was subse-
quently scrapped.
OFFICIAL SUSPENDED
A full bench of the High Court, headed
by Justice Rajesh Bindal and comprising
Justices Rajan Gupta and GS Sandha-
wala, has ordered scrapping of the
Haryana Civil Services (Judicial)
Preliminary Examination, 2017 for
appointment of civil judges. The Court
has also directed the suspension of
Registrar (Recruitments) Balwinder
Kumar Sharma, as a preliminary inquiry
Exam
Paper
Going for
`1.5 cr
Inashockingcaseof
corruptioninajudicialexam,
theCourthasorderedanFIR
andaSpecialInvestigation
Teamtoprobethematter
By Vipin Pubby
in Chandigarh
E
ENSURING
COMPLIANCE
The Punjab and
Haryana High Court
has ordered an FIR
and constitution of an
SIT to probe this
exam scam
Illustration: Anthony Lawrence

ordered by the Court had pointed to his
direct involvement in the leakage of the
examination paper.
The full bench ordered that “keeping
in view the seriousness of the matter
and the report of the Registrar
(Vigilance), prima facie, pointing out
involvement of Balwinder Kumar
Sharma, Registrar (Recruitments), and
further recommendations made by the
committee for deeper probe and disci-
plinary action against him, we recom-
mend that the officer be placed under
suspension with immediate effect pend-
ing disciplinary proceedings”.
COMPLICIT IN CHEATING
The inquiry found that Sharma had pro-
vided the examination paper to Sunita, a
candidate known to him. She subse-
quently topped the written examination
and also provided the question paper to
another candidate, Sushila, who topped
in the reserved category.
Both were students at a coaching
centre in Chandigarh. While sharing
videos of classes, Sushila is reported to
have accidentally shared an audio clip
where she is talking to another girl and
offering the leaked question paper for
`1.5 crore. When Suman, who was also
studying in the same coaching centre,
questioned Sushila about it, she made
the same offer to her too. Although
Suman refused, she started recording
her conversations with Sushila and
later moved the High Court through
her husband.
Sharma stated before the officer con-
ducting the preliminary inquiry that he
was “being made a scapegoat to save
someone”. However, he didn’t name any-
one and couldn’t provide any evidence
to back his claims. Initially, he denied
that he was acquainted with Sunita.
However, investigations revealed that he
was in touch with her and had excha-
nged at least 760 calls and text messages
with her. Confronted with the evidence,
Sharma had no reply. The question pap-
er was set by two sitting judges of the
High Court, Justices TS Dhindsa and
AK Mittal.
THREE COMPLAINTS
The inquiry report said the High Court
had received three anonymous com-
plaints where it was alleged that two rel-
atives of a senior High Court official had
appeared in the HCS (Judicial Branch)
Examination, 2017. The complaints stat-
ed that even the “practice of having non
temperable seals on the question papers
was not found for the examination (and)
which was simply pasted with glued
white paper and no videography of can-
didates was done”.
Sharma was not only part of the
exercise to prepare the question paper
since May but was also in possession of
the paper with the master answer key in
his pen drive till a day after the exami-
nation on July 17.
The High Court bench ordered that
the FIR be lodged in Chandigarh as the
leakage took place in this city. Manoj
Kumar, the complainant and Suman’s
husband, has been questioned by the
police. The FIR was lodged against
Sharma, Sunita and Sushila under the
Prevention of Corruption Act, 1988
(Sections 8, 9 and 13 (1-D) and 13-2),
besides IPC 409, 420 and 120-B.
The High Court is likely to monitor
this case and appears keen to nail the
accused to maintain the honour of the
Court. The irony is that the selection
procedure for Haryana judicial services
had come in for high praise when CBI
Special Judge Jagdeep Singh, barely
six years into service, had displayed rare
courage in convicting and sentencing
Gurmeet Ram Rahim, chief of the Dera
Sacha Sauda.
With the exam scrapped and no new
dates being announced, all eyes are now
on nailing the accused who leaked the
question paper.
(Fromleft)TheHighCourtbenchheadedbyJusticeRajeshBindalandcomprising
JusticesRajanGuptaandGSSandhawala,hasorderedscrappingoftheHaryanaCivil
Services(Judicial)PreliminaryExamination,2017.
In exams held for the post of
Delhi judges in May 2015, only 15
out of 659 candidates cleared
them. Among the 15, the topper
and another candidate were
daughters of a sitting Delhi High
Court judge.
46 candidates of the Patna
District Judges Examination, 2015
moved the SC as they had perfor-
med well in the written test but were
given only 12 marks out of 50 in the
interview. Only nine were declared
successful against 99 vacancies.
Othercorruptioncases
injudicialexams

Vishwas, all from AAP.
They had made allegations of corrup-
tion against Jaitley when he was presi-
dent of the Delhi and District Cricket
Association (DDCA) from 2000 to 2013.
The case even went to the Supreme
Court for speedy disposal and for ans-
wering the question of law: whether
retweeting a defamatory tweet can
amount to defamation under Section
499 of the India Penal Code. However,
the three-judge bench headed by the
26 October 2, 2017
Courts/ Arun Jaitley Suit
Watch Out Before
Retweeting!
Theminister’scaseagainstAAPspokespersonRaghavChadharaiseslegalquestionsabout
whetheraretweetofadefamatorytweetisalsoliablefordamages
By Vinay Vats
chief justice of India directed the Delhi
High Court to adjudicate the matter by
September 25, 2017.
N
ow the issue which has not been
considered so far is whether
retweeting of a defamatory
tweet can amount to defamation under
Section 499. This Section defines
defamation as: “Whoever, by words
either spoken or intended to be read, or
by signs or by visible representations,
makes or publishes any imputation con-
cerning any person intending to harm,
or knowing or having reason to believe
that such imputation will harm, the rep-
utation of such person, is said, except in
the cases hereinafter expected, to
defame that person.”
The purpose of the law of defamation
is to protect one’s reputation, honour
and dignity in society. It has three essen-
tial ingredients, i.e. publication, words
either spoken or written or by signs or
by visual representation, and the state-
ment should have been made with
intent to harm the reputation of the
person. However, it has some excep-
tions—the statement is true or the same
has been made in public interest.
The Information Technology Act,
2000 talks about Section 66A which
gives punishment for sending offensive
HE Internet Age has revolu-
tionised communication for
the better, but it also throws
up many questions. The
manifestation of freedom of
speech has been amplified,
but it also has its flip side. For instance,
exercising this freedom in certain cases
could well invite penal provisions of the
Indian Penal Code as well as the Infor-
mation Technology Act.
This issue arose in the Delhi High
Court when a petition was filed by Aam
Aadmi Party (AAP) spokesperson
Raghav Chadha for quashing of a defa-
mation case by Union Minister Arun
Jaitley against him. Chadha had retwee-
ted an allegedly defamatory tweet by
Delhi CM Arvind Kejriwal made
against Jaitley. Apart from Chadha,
five other facing charges of defama-
tion are Kejriwal, Ashutosh, Deepak
Bajpai, Sanjay Singh and Kumar
T
INTENT IS IMPORTANT
Union Minister Arun Jaitley has filed a
defamation case against AAP spokesperson
Raghav Chadha (extreme left) for a re-tweet
UNI

ent matter is now pending before the
court of Justice Sangita Dhingra Sehgal
of the Delhi High Court.
On the one hand, it is well justified
on the part of petitioners that the
alleged defamatory act committed by
them falls under IT Act, more specifical-
ly Section 66A which was struck down
in 2015 and the act is further not cov-
ered under Section 499 IPC.
The charges against the accused are
liable to be quashed as they do not con-
stitute any offence which is covered
under any provision of the law. Also, it is
pertinent to note that there is a slight
difference between publishing and
republishing where writing an original
post or tweeting amounts to publishing.
However, sharing the same post or
retweeting amounts to republishing. It
is worth questioning if publication is an
essential ingredient of defamation but
would republishing or retweeting in this
case attract the same penalty.
It is apparent that despite having
legislation, India is lacking in laws to
tackle cases such as the present one.
The writer is an advocate, Supreme
Court of India
Adding one more facet to it, Section
5 of IPC talks about the maxim gener-
aliaspecialibus non derogant which
means any special or local law will
prevail over the provisions of the IPC.
Hence, Section 499 will not apply.
Section 499 only deals with print
media and oral statements and it never
contemplated electronic media. Grover
also argued that Chadha was not part
of making or publishing the main con-
tent and hence, he is not liable for
defamation.
Senior Advocate Siddharth Luthra,
appearing for Jaitley, submitted that the
six accused persons shared a defamatory
content on social media and tried their
level best to defame Jaitley. This attracts
Section 34 which talks about common
intention and makes all of them respon-
sible. All of them, apart from the tweet-
er, even held press conferences and cir-
culated defamatory statements and did
not even spare Jaitley’s family. The pres-
messages through a computer resource
or communication device or any infor-
mation that is grossly offensive or has a
menacing character. It also includes any
other information which one knows to
be false, but for the purpose of causing
annoyance, inconvenience, danger, obs-
truction, insult, injury, criminal intimi-
dation, enmity, hatred or ill will, persist-
ently by making use of such computer
resource or a communication device. It
also covers the act of sending any elec-
tronic mail or electronic mail message
for the purpose of causing annoyance or
inconvenience or to deceive or to mis-
lead the addressee or recipient about the
origin of such messages.
The punishment for the above said
offences was imprisonment for a term
which may extend to three years and
fine. However, the said section was
struck down by the Supreme Court in
2015 as the same was violative of Right
to Freedom of Speech and Expression
and was widely misused by the police
to arrest innocent people for posting
critical comments against reputed per-
sonalities and political as well as statu-
tory bodies.
I
n the present petition, Chadha’s
counsel, senior advocate Anand
Grover contends that as the act took
place in electronic form, it invites provi-
sions of Information and Technology
Act, 2000. But as Section 66A was
struck down in 2015, Chadha was safe-
guarded from this Act.
“This is a case of per se defamation
and not even implied defamation or
defamation by innuendo.”
—Sidhharth Luthra
“It is like a newspaper in my hand
and I give it to someone. That would
not amount to republication. The tweet
is already in the public domain. If I
retweet it, at most, my followers would
be added to the people who know
about it.”
—Anand Grover
LEGAL TANGLES: The digital drive of the
Modi government opens up a Pandora’s box
regarding privacy and defamation
PIB

Courts/ Ex-Armyman Case
28 October 2, 2017
Delhi court has asked an
alleged trigamist, a for-
mer Army captain, to pay
his first wife, who now
lives separately, an inter-
im monthly maintenance
of `50,000. Captain Chand Singh (retd)
has been married to Samjho Devi under
the Hindu Marriage Act, 1955, for over
50 years. Since 2015, Samjho Devi has
been living with her second daughter,
Suraj, in Delhi, as she was being con-
stantly abused and assaulted in her mat-
rimonial home, even by her stepchil-
dren. The case was argued on her behalf
by Vinay Vats from India Legal
Research Foundation.
In his order dated September 19,
Dharmesh Sharma, principal judge of
Tis Hazari district courts, said: “The
maintenance will be payable from
February 2017, the date of filing of the
application (by Samjho Devi). The
payments pending till date may be made
in three installments, payable on Octo-
ber 31, November 30 and December
31, respectively.”
RICH MAN
Despite his unkempt and humble
appearance, Singh, 86, owns over 10
properties in Jaipur and Dadri tehsil,
Bhiwani district, Haryana. The proper-
ties were bought with profits made from
running a Hindustan Petroleum petrol
pump in Jaipur, which he acquired as an
ex-serviceman in 1983. They include
two double-storey houses in Jaipur, a
one-bedroom flat and five shops in the
same locality, a farmhouse in Amer on
the outskirts of Jaipur, two more shops
and a couple of plots in Dadri, in
addition to his ancestral property in
Bhagvi village in that tehsil. His
monthly income from these properties is
close to `10 lakh. Samjho Devi has
demanded a monthly maintenance of
`1-2 lakh.
Singh, who was with the Maratha
Light Infantry on short service commis-
sion and released from service in 1975,
has had a rather colourful life. Accord-
ing to Samjho Devi, Singh married
Manorama Solanki while in service, had
a live-in relationship with Preeti Yadav
in 1988 and married Murti Devi in
1990. While Solanki is a teacher from
Ajmer and Yadav is an Agra-based advo-
cate, Murti Devi, a housewife, is from a
neighbouring village. She had been
Anembattledwifegets
succourafteraDelhicourt
ordersheroctogenarian
husband,whoreportedly
marriedtwomorewomen,to
payhermaintenance
By Sucheta Dasgupta
A
Lothario’s
Messy
Marriages
LAW CATCHES UP
Capt Chand Singh (retd) with
Murti Devi after a hearing at
Tis Hazari courts
Photos: Bhavana Gaur

deserted by her husband and was cho-
sen by Singh’s sister for the match in
order to produce a male heir for Singh.
As Samjho Devi was not present during
either of the weddings and came to
know of them much later, she could not
object to them.
However, after she came to know of
the last marriage, she lodged an FIR in
Jaipur police station against it. She had
been beaten and sent to her parents’
house during the wedding so the family
could welcome the new bride home.
ILLEGAL ACT
Under the Hindu Marriage Act, a sec-
ond marriage, during the subsistence of
the first, is illegal from the outset (void
ab initio) and any relationship arising
from the same does not have any validi-
ty. Section 494 of the Indian Penal Code
makes such a marriage punishable by a
prison term of up to seven years and a
fine. Under Section 495, concealment of
such a marriage is punishable by exten-
sion of that term up to 10 years.
However, Singh denies the marriage
to Solanki. He says he is currently in a
live-in relationship with Murti Devi, the
cook, and has three offspring by her. He
says she has been in his employment for
the last 27 years. “Samjho Devi is unlet-
tered and easily influenced by those
around her. She is now being misguided
by her daughter and her husband, who
are after my property. As I don’t like the
food prepared by her, I had hired Murti
Devi as a cook in the household,” Singh
told India Legal.
Incidentally, Murti Devi was seen
accompanying Singh to all the hearings
and his sister introduced her as “chhoti
bhabi” while in conversation with
India Legal.
While Singh has three daughters,
Madhu Bala, Suraj and Bharti with
Samjho Devi, he has two daughters and
a son (Tara, Nisha and Aakash), with
Murti Devi.
He is also paying a monthly sum of
`500 to Yadav, whom he had reportedly
deserted after coming to know that she
was a divorcee with a son. A case filed
by Yadav against him is currently pend-
ing in Allahabad High Court.
MANY ALLEGATIONS
Singh has made Murti Devi the owner
of most of his properties, including his
Jaipur houses. According to daughter
Suraj, he made Samjho Devi work as a
mason to construct these houses in
order to “save labour charges”.
Suraj, who has no dearth of horror sto-
ries to narrate, also alleges that she and
her sister were made to walk from Delhi
to Haridwar bearing kanwars so that a
son might be born to her father and
Murti Devi who, she says, keeps arms in
her home. She also says she had earlier
let Aakash stay in her Delhi home so
that he could go to a reputed school.
However, Singh says Suraj is only
trying to extract money from him
through her mother and is after his
properties, citing how she had asked for
`4 lakh per month for looking after
Aakash during his one-year stay.
Surprisingly enough, he had complied
with her request.
Singh has, meanwhile, fought prop-
erty wars with his brother over the own-
ership of his petrol pump business and
is quite close-fisted about his wealth.
He wants to reconcile with Samjho
Devi and take her to live with him in a
joint family arrangement, along with
Murti Devi and her children.
Singh’s parental family too is accused
of torturing Samjho Devi for not bearing
him a male heir. When Madhu Bala was
born, Singh’s parents tried to get rid of
Samjho Devi, first by poisoning her and
then pushing her into a well. She was
saved by Master Surajmal, a school-
teacher, and an eyewitness. Singh had
left for his Army posting at that time.
The next hearing of the case is in
November. For all her efforts and her
pains, Samjho Devi has earned herself a
moral victory.
JUSTICE PREVAILS
Samjho Devi and her daughter Suraj at
Tis Hazari courts
AccordingtohisfirstwifeSamjho
Devi,ChandSinghmarried
ManoramaSolanki,hadalive-in
relationshipwithPreetiYadav
andmarriedMurtiDeviin1990.

Defence/ Parity Plea
30 October 2, 2017
HEN a young officer
under training earns his
spurs, he has dreams and
aspirations of leading his
men into battle. He can-
not even in his wildest imagination
think of being considered almost a non-
combatant who will be denied future
promotions just because he belongs to a
certain cadre. This becomes more
humiliating when he finds himself in
more dangerous situations when facing
the same enemy as his other colleagues
in the Infantry and Artillery, who are in
a better position to defend themselves
with superior weapon systems.
It is well-known that unlike the civi-
lian sector, the Army is a top-of-the-
shelf professional and action force. Its
key result area spells life or death for a
nation. This makes the armed forces
extremely demanding on performance,
with vacancies in the higher ranks
often very limited. This shortage then
becomes a source of fierce competition
and rivalry.
In a recently reported problem, offi-
cers of the Indian Army Service corps, ie
ASC, Ordnance and EME amounting to
over a 100 Majors and Lt Colonels,
moved the apex court as they felt that
the vacancies provided to them for the
next promotion had been limited time
and again.
This was in spite of the Ajai Vikram
Singh committee’s recommendations to
ensure better career prospects in the
armed forces, wherein it had said that
promotions to the rank of Colonel, who
is a battalion Commanding Officer,
would be granted on completion of 26
years of service and promotion of offi-
Arms and the MenWithover100LtColonelsandMajorsmovingtheSupremeCourtoveralleged
“discrimination”inthepromotionofofficersoftheservicescorps,isn’tittimethearmy
tookaseriouslookattheircomplaint?
By Praful Bakshi
W
UNI

cers to Lt Colonels would be on comple-
tion of 13 years of service from the pres-
ent 18 years.
T
here may be no dearth of sugges-
tions or recommendations by
such committees, but at the
end of the day, it is the top echelons of
the Army, predominantly made up of
Infantry and Artillery officers, who call
the shots. The outcome of this can be
well imagined as officers of support
services are left to struggle with limi-
ted vacancies.
The main argument put forth by sup-
porters of this unfair practice is that it is
the Infantry and Artillery which face the
dangers and hardships of combat situa-
tions, including counter-insurgency and
low intensity conflict. This argument is
far from the truth.
Let us take the example of a typical
young ex-NDA, ASC officer. Let’s call
him Raja Vaid. He goes through IMA
and is forced to join ASC when his first
two choices of service were Infantry and
Armored Corp. He had to give his third
choice of service corps as per the regula-
tory order of that time. Like every officer
of the support services, he has to be
attached for three years to an infantry
battalion in a forward location.
Thereafter, Vaid is required to com-
plete a tenure of 28 months with the
Rashtriya Rifles in J&K as a company 2
IC (second in-command). This means
he has to lead his 150 to 200 men in all
anti-terrorist or counterinsurgency ops
and face ceasefire violations with all the
available resources at his disposal.
After that, he will have one or more
postings in a forward brigade location
and handle the logistic supply. The for-
ward posts depend on supply officers
who fight against all odds to deliver
much-needed supplies.
The point to note here is that the
danger to these convoys moving from
one location to another is constant.
They are exposed to fire from enemy
artillery and ambushes and, in the event
of war, aircraft bombardment. Their
position is far more vulnerable than the
troops in concrete bunkers and trenches
who are not only well-protected, but
well-defended.
All ASC, Ordnance and EME officers
can also be part of airborne para forces
or other fighting units, where they face
the same dangers and threat as regular
fighting officers.
The EME officer has to move right
into the tank battle zone to recover a
damaged vehicle/tank and do repair
work. The ASC officer not only moves
right up to the most forward location
with fuel, water and food, but he has to
bring in ammunition in his convoy from
ordnance depots and tanks on special
tank transporters. It is these mobile
movements in a battle area that attract
maximum fire from the enemy. The
same is true of field ordinance depots
which always attract the first raid from
enemy fighter bombers.
I
f anyone goes through the list of
causalities during the Kargil war,
they would be surprised to find a
number of ASC, Ordnance and EME
officers not only on the wounded list,
but who have been awarded Mahavir
Chakras, Vir Chakras, Sena medals and
the like. Capt Neikezhakua (MVC),
Capt Haneefudin (Vrc), Col Jamwal
(Vrc) and the recently martyred Maj
Satish Dhaiya (Vrc) are among them.
Similarly, many battle honours have
been won by the service arms like in the
Battle of Kangla Tongbi fought by vali-
ant men of the Army Ordnance Corp
against the Japanese.
An army where the officer cadre
develops such serious fault lines that a
court verdict is the last answer is dan-
gerously exposed to various factions
which would not only politicise the issue
but make the army vulnerable to politi-
cal machinations. It would be an invita-
tion for a Pakistan-like situation to
develop in India.
Thepositionofconvoysisfar
morevulnerablethanthetroops
inconcretebunkersandtrenches
whoarenotonlywell-protected,
butwell-defended.
IN SERVICE OF THE NATION
(Facing page) Service Corps tableau passes
through Rajpath on Republic Day;
(left) Army supplies being carried in difficult
terrains on mules

Given that we now have about 9.3
lakh polling booths in the country for
the Lok Sabha elections, at least 11 mil-
lion people are required to conduct
smooth polls.
It is, therefore, argued that frequent
elections mean that a huge number of
public servants have to be present for
election duty, and hence are unable to
“The time has come to take a serious
look at the possibility of simultaneous
elections to parliament and state
assemblies, and even municipal bodies,
panchayats and cooperative bodies.
Otherwise, in this country, this festival
of elections will go on. In India, there
is a continuous election season and
election fever. Development takes a big
hit. This has to be understood by all.
That is why this suggestion for
simultaneous elections.”
—Venkaiah Naidu
he Vice-President of India
strongly advocated holding
simultaneous elections at
all three levels of gover-
nance in India recently.
Such an idea was also pro-
posed by Prime Minister Narendra
Modi, and senior BJP leader LK Advani
before him.
A Lok Sabha committee was set up to
examine the feasibility of such a propos-
al. Niti Aayog has also published a paper
on the subject.
Various arguments are put forward
in favour of simultaneous elections. The
foremost is that frequent elections ham-
per the normal functioning of the gov-
ernment and also disrupt day-to-day life
of citizens.
This happens because as soon as the
Election Commission announces the
election dates, the Model Code of
Conduct comes into operation. This
means that the government cannot
announce any new schemes, including
at the state level, make any new
32 October 2, 2017
My Space SY Quraishi
Simultaneous Polls:
Desirable But Not Feasible
appointments and cannot transfer or
appoint officials in direct or indirect
line of election management. Ministers
get busy in election campaigning and
stop attending their offices. The district
administration also gets busy with con-
ducting elections at the cost of virtually
everything else.
Further, Article 324(6) of the con-
stitution requires the president or the
governor of a state to provide the
Election Commission with whatever
staff it may require.
T
Whilesuchanexercisemaysavemoneyandleadtobetteradministration,
oneshouldlookformorepracticalalternatives
A FUNDAMENTAL RIGHT
Young voters show off their ink marks after
casting vote
UNI

carry out their normal responsibilities.
The second argument for simultane-
ous elections is cost—the cost of organ-
ising the election and campaign expen-
ditures borne by parties and candidates.
Organisation costs include production
of EVMs, printing of stationary, the bal-
lot paper that is put in the EVMs and
deployment and travel of staff, including
security personnel.
A
lthough there is no precise meas-
ure of the total cost of an elec-
tion—a large part of it being
indirect costs borne by respective
departments and state governments, it
is estimated that a general election in
India costs around `4,500 crore. The
more serious issue, however, is the cost
borne by parties and candidates, given
that there is no cap on the amount that
can be spent by political parties for
every election. One estimate put the
total cost of contesting the elections of
2014 at `30,000 crore.
Another argument in favour of
simultaneous elections is that they lead
to escalation of the curse of 4 Cs—com-
munalism, casteism, corruption, and
crony capitalism. Frequent elections
mean that there is no respite from these
evils at all.
While these arguments may seem rea-
son enough to move towards simultane-
ous elections, the truth is that, while the
idea is desirable, it is doubtful if it is fea-
sible. Let us consider a practical con-
straint. Even if elections were to be held
simultaneously, every state and assem-
bly will witness its own political course.
What is one to do if a particular state
witnesses an upturned majority in case
a few of the MLAs decide to shift
their “loyalty”?
How are simultaneous elections to be
continued in such a scenario? Or, as was
the case in 1998, what happens if the
Lok Sabha is dissolved within 13 days?
Do we also dissolve all democratically
elected state assemblies for reasons
beyond the states’ boundaries? The
same argument extends to panchayat
elections. Why should they be affected if
rageous spending by political parties
during the election season can be tack-
led if a ceiling is put on it. Corporate
funding must be banned and replaced
with state funding of political parties
There is an urgent need to set up a
transparent system of public funding of
parties. Even the duration of elections
can be reduced from the present 2-3
months to a bare minimum of 33 days if
sufficient number of paramilitary com-
panies are made available.
A far-reaching electoral reform like
simultaneous election should be
attempted only with complete political
consensus. I am sure the government
will spare no effort to create that con-
sensus instead of forcing it through the
might of its majority.
The writer is a former Chief Election
Commissioner of India and
author of An Undocumented
Wonder—the Making of the Great
Indian Election
the state assembly is dissolved?
Separates elections are not without
some other benefits, like the following:
1. Politicians are notorious for disap-
pearing for five years once the election is
over, forgetting their accountability to
the people. Frequent elections ensure
that politicians show their faces to the
people regularly.
2. Election time results in creation of
work opportunities for thousands of
workers at the grassroot level. Frequent
elections ensure more jobs.
3. Common people, particularly the
poor, love frequent elections.
W
hile all the reasons given in
support of synchronised
elections are legitimate and
need to be solved in order for Indian
democracy to evolve, as seen above,
simultaneous elections may not be a fea-
sible option.
There is a need to look for more
practical alternatives. The issue of out-
Themainargumentinfavourof
simultaneouselectionsisthatit
hampersthenormalfunctioning
ofthegovernmentandalso
disruptsthelifeofcitizens.
VOTING POWER
An old lady gets help to cast her vote as
other voters queue up
UNI

by now, well-established
in Dubai. Both Rajiv and
Shivani, a former jour-
nalist, are prominent fig-
ures in Dubai’s ultra-rich circles, includ-
ing the expanding army of wealthy
Indians.
Back in India, the other side to the
Saxena success story is emerging with
the Enforcement Directorate (ED) case
against them featuring in court. “The
offence alleged against the petitioner
falls under the category of economic off-
ences which stand on a graver footing.
These crimes are professionally commit-
ted by white-collared people which infl-
ict severe injuries on both health and
wealth of the nation. Such offences need
to be dealt with a heavy hand and relea-
sing such accused on bail will affect the
community at large and also jeopardize
Probe/ AgustaWestland Chopper Deal
34 October 2, 2017
HY would a man
who drives a cus-
tomised 458
Ferrari Spider, has
a luxury apart-
ment in the Emir-
ates Crown building in the upscale Palm
Jumeirah in Dubai, and heads a global
network of accounting and consultancy
firms which employ 6,800 professionals
operating in 81 countries across all con-
tinents, take the risk of getting involved
in an arms deal involving bribery and
illegal money routing?
The arms deal in question is the
VVIP chopper deal involving the sale of
AgustaWestland helicopters to India
which was scrapped after proof emerged
that bribes were paid. (The former chief
of the Indian Air Force and members of
his family have already been indicted in
the investigation). The man in question
is Rajiv Saxena, head of M/S UHY
Saxena and M/S Matrix Holdings, both
located in Dubai, whose wife, Shivani
Saxena, is currently lodged in a jail in
India in connection with the money
laundering case connected to the Rs
3,600 crore VVIP chopper scam.
Last week, the Delhi High Court
denied her bail request, declaring that
“economic offences need to be treated
with a heavy hand”. Shivani Saxena is a
director of the two Dubai-based firms
started by her husband and which are,
the economy of the country,” Justice AK
Pathak observed.
According to the case filed by the
ED, UK-based AgustaWestland
International Ltd. had paid 58 million
euros as kickbacks through Tunisia-
based Gordian Services Sarl and IDS
Sarl. These companies siphoned off the
money in the name of consultancy con-
tracts to Interstellar Technologies Ltd
and others, and these funds were further
transferred to UHY Saxena and Matrix
Holdings Ltd in Dubai. The ED had
arrested Shivani Saxena in Chennai
under the provisions of the Prevention
of Money Laundering Act (PMLA). She
is currently in judicial custody. The ED’s
The Matrix
of Bribery
TheDelhiHighCourt’srefusalofbailtoShivani
Saxenashinesthelightonahigh-flyingDubai-based
coupleallegedlyinvolvedintheVVIPchopperscam
By India Legal Team
W
BEHIND THE
SPARKLE
Shivani Saxena (left)
and her husband
Rajiv Saxena are
prominent figures in
Dubai’s ultra-rich
circles

case is that UHY Saxena and Matrix
Holdings were the ones through whom
“the proceeds of crime have been routed
and further layered and integrated in
buying the immovable properties/shares
among others”.
Saxena was clearly unaware of the
seriousness of the charges and had land-
ed in Chennai where the authorities put
her under arrest. She had approached
the Delhi High Court saying she was
unwell and needed specialised medical
treatment. Her application was rejected
on the grounds that she only needed
physiotherapy, which was being provid-
ed to her in jail.
Her arrest has added an element of
intrigue to the VVIP chopper case, with
the role of the Dubai-based Saxena cou-
ple being largely overshadowed by the
sensational arrests of the ex-Air Chief,
SP Tyagi, his relatives and the man who
organized the bribe payments, middle-
man Christian Michel, also based in Du-
bai. The ED’s investigation found that
Michel, declared a fugitive, had diverted
$28 million through the two Saxena fir-
ms M/s UHY Saxena, Dubai & M/s Ma-
trix Holdings. This $28 million was bel-
ieved to be kickbacks for officials in the
Indian Air Force and defence ministry.
Among those arrested was promin-
ent lawyer Gautam Khaitan who repor-
tedly admitted to setting up a shell com-
pany to receive money from the Italian
helicopter company to be paid as bribes.
Some $42 million was directly handled
by Michel as part of the payoffs. The lat-
est twist in the AgustaWestland tale, the
refusal of bail to Shivani, has now tur-
ned the spotlight on her and her hus-
band, Rajiv Shamsher Bahadur Saxena.
R
ajiv Saxena moved from
Mumbai to Dubai in 1992 and
has been hailed as
an example of enterprise and success.
His first company, UHY Saxena, was
one of the first chartered accountant
firms in Dubai. Shivani Saxena started
her career in Delhi as a journalist and
then went into public relations. In
1985, she met Rajiv in Mumbai and they
got married.
In Dubai, Shivani’s arrest has shoc-
ked the Indian community. In the UAE,
Rajiv Saxena’s name is synonymous with
accountancy. In 2016, UHY Saxena rep-
orted an income of $640 million. His
lifestyle--the Ferrari is just one of a fleet
of supercars--is much talked about in
Indian expatriate circles and the plush
offices of UHY-Saxena in Mazaya Busi-
ness Avenue (Matrix Group Ltd has the
same address) are symbolic of a highly
successful business. Rajiv’s title is Mana-
ging Partner but he is the man who real-
ly runs the show. He is a member and
honorary treasurer of the Ferrari Club of
Dubai and enjoys a pretty hectic social
life in the city’s high-flying circles.
UHY Saxena has over 70 profession-
als working in the four offices situated
in the UAE. In 2001, Rajiv set up the
Matrix Group Limited as an independ-
ent business unit. The company has
interests in hospitality, mining, power,
metals and real estate with interests in
India, the UK, Europe and Africa. It’s a
long way from his middle class origins
in Mumbai but the ultimate irony is that
a man who audits other companies and
institutions looking for illegalities and
shady bookkeeping is now facing an
audit of his own accounts. If the denial
of bail to Shivani is based on solid evi-
dence, that bright yellow Ferrari could
be gathering dust for some time.
Thelatesttwistinthe
AgustaWestlandtale,therefusal
ofbailtoShivani,hasnowturned
thespotlightonher
andherhusbandRajivSaxena.
TROUBLED WATERS
(Above) In December 2016, the
CBI arrested former Air Chief SP
Tyagi and two others in the
`3,600 crore AgustaWestland
chopper case; (left) the VVIP
chopper of the Indian Air Force
Anil Shakya

36 October 2, 2017
Focus/ Data Protection
DigitalDilemma
AstheBNSrikrishnaCommitteebeginsitsworkon
recommendinganewlawfordataprotection,crucialquestions
onhowitwouldbalancerighttoprivacyawaitresolution
By Venkatasubramanian
tary, Department of Telecom, Dr Ajay
Bhushan Pandey, CEO, UIDAI, Dr Ajay
Kumar, additional secretary, Ministry of
Electronics and Information Technology
(MeitY), Prof Rajat Moona, Director,
IIT, Raipur, Dr Gulshan Rai, National
Cyber Security Coordinator, Prof
Rishikesha T Krishnan, director, IIM,
Indore, Dr Arghya Sengupta, research
director, Vidhi Centre for Legal Policy,
Rama Vedashree, CEO, DSCI, and joint
secretary, MeitY, who will function as
the member convener. The Committee
may co-opt other members in the group
for specific inputs.
The terms of reference of the
Committee are to study various issues
relating to data protection, and to make
suggestions for consideration of the gov-
ernment on principles to be considered
for data protection and suggest a draft
data protection bill.
MeitY, in consultation with the
chairperson and members, was to collect
necessary information and provide it to
the Committee within eight weeks of the
date of this OM to enable it to start its
deliberations. With the Committee
expected to start its work early next
month, it has led to expectations that a
draft data protection law would soon be
in place.
To begin with, why is a data protec-
tion regime considered important by the
stake-holders, including the govern-
N the midst of the Supreme Court’s
hearing on the right to privacy on
August 1, the government told the
nine-judge bench that it had set up
a committee of experts, headed by
Justice BN Srikrishna, a former
judge of the Supreme Court, to deliber-
ate on a data protection framework.
The government’s decision to set up
the committee was an admission that it
was concerned about violation of the
right to privacy, despite its assertions
before the Court that it is not a funda-
mental right. It was a step aimed at
assuaging the concerns of the Supreme
Court that in the absence of a robust
data protection regime, any compromise
with the right to privacy would be
fraught with serious consequences for a
person’s liberty. That the government
did not think such a regime was a pre-
requisite before it made Aadhaar enrol-
I
ment mandatory to avail various bene-
fits and services, however, makes its
decision suspect.
Notwithstanding this cloud over the
government’s intention, the outcome
of its deliberations is expected to bring
clarity to many issues awaiting judici-
al determination.
SAFE & SECURE
The Office Memorandum (OM) dated
July 31 setting up the Committee says
the need to ensure growth of the digital
economy while keeping personal data of
citizens secure and protected is of
utmost importance. The committee has
been asked to identify key data protec-
tion issues in India and recommend
methods of addressing them.
Apart from Justice Srikrishna, chair-
person of the Committee, other mem-
bers include Aruna Sundararajan, secre-
Photos: Anil Shakya

India Legal 02 October 2017

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