Will Mediation Work? Chief Justice Jagdish Singh Khehar has tossed the Ram Mandir-Babri ball back into the laps of community leaders to try again for a non-legal solution even as tensions mount

1. Chief Justice Jagdish Singh Khehar has tossed the
Ram Mandir-Babri ball back into the laps of
community leaders to try again for a non-legal
solution even as tensions mount
Will
Mediation
Work?
InvitationPrice
`50
NDIA EGALL STORIES THAT COUNT
April 03, 2017 ` 100
www.indialegallive.com
I
Telecom Wars:
Survival of the Biggest
Donald Trump: Looming
Constitutional Crisis

4. OLLOWING the BJP’s stunning electoral
victory in Uttar Pradesh, several politicians
and public figures have raised the issue of
rigged electronic voting machines (EVMs)
and manipulation of postal ballots. Critics
argue that when suspicions arose, the Election
Commission (EC) could have intervened, failing
which, aggrieved candidates could have
approached the courts for redress.
There are endlessly confusing arguments about
the powers, or lack of them, of the EC. Without get-
ting into the merits or demerits of these accusa-
tions, one thing is abundantly clear. The law, as
interpreted by the Supreme Court, clearly lays out
that the EC has colossal discretionary powers—
which it must use in the interests of preserving
democracy—to postpone and reschedule election
and order re-polls. But it has to see the electoral
process to its conclusion and announce the results
thereafter. Candidates with grievances of any sort
can resort to only one remedy available to them—
filing an election petition after the process is com-
plete. Even the high courts should be wary of
entertaining appeals mid-way notwithstanding
how compelling their arguments are.
These principles were laid down in an
exceptional Supreme Court judgment
penned in 1978 by the venerable Krishna
Iyer in a bench comprising Justices M
Hameedullah Beg, PN Bhagwati, PK Goswami and
PN Shingal (Mohinder Singh Gill vs Chief Election
Commissioner).
On March 22, 1977, the Chief Election
Commissioner received a wireless message from
the Returning Officer of Punjab’s Ferozepur parlia-
mentary constituency: “Mob about sixteen thou-
sand by over powering the police attacked the
counting hall where postal ballot papers were being
counted. Police could not control the mob being
out numbered. Part of postal ballot papers except-
ing partly rejected ballot papers and other election
material destroyed by the mob.”
The CEC ruled “… as a consequence it is not
possible to complete the counting of the votes in
the constituency and the declaration of the result
cannot be made with any degree of certainty.” Even
as the EC was mulling a repoll and recount, Gill
approached the CEC to revoke the order and to
declare the result of the election, but without suc-
cess. He then appealed to the High Court arguing
that the EC had no jurisdiction to order a re-poll of
the entire parliamentary constituency; the order
was violative of the principles of natural justice as
no opportunity of a hearing was afforded to the
appellant before passing the order.
T
he matter was ultimately referred to the
Constitution Bench of the Supreme Court,
which said in a final ruling: “We are clearly
of opinion that the Election Commission is compe-
tent in an appropriate case to order repoll of an
entire constituency where necessary. It will be an
exercise of power within the ambit of its functions
under Article 324. The submission that there is
complete lack of power to make the impugned
order under Article 324 is devoid of substance.
Such an order, relating, as it does, to election within
the width of the expression as interpreted by this
Court, cannot be questioned except by an election
petition under the Act.”
In this observation, the Court reiterated the
famous N.P. Ponnuswami v. Returning Officer,
F
PREGNANT
PROBLEM OF POWER Inderjit Badhwar
Letter From The Editor
4 April 3, 2017

5. Nanmakkal Constituency & Ors. 1952 case: “The
Representation of the People Act provides for only
one remedy, that remedy being by an election
petition to be presented after the election is over,
and there is no remedy provided at any intermedi-
ate stage.”
“The super-authority,” said the Supreme Court
in the Gill judgment, “is the Election Commission,
the kingpin is the returning officer, the minions are
the presiding officers in the polling stations and the
electoral engineering is in conformity with the elab-
orate legislative provisions.”
Further: “If the grounds on which an election
can be called in question could be raised at an earli-
er stage and efforts, if any, are rectified, there will
be no meaning in enacting a provision like article
329 (b) and in setting up a special tribunal. Any
other meaning ascribed to the words used in the
article would lead to anomalies, which the
Constitution could not have contemplated, one of
them being that conflicting views may be expressed
by the High Court at the pre-polling stage and by
the election tribunal, which is to be an independent
body, at the stage when the matter is brought up
before it."
The Court, in reminding us all that constitu-
tional and statutory remedies exist and must be
pursued, made a telling observation: “The pregnant
problem of power and its responsible exercise is
one of the perennial riddles of many a modern con-
stitutional order. Similarly, the periodical process of
free and fair elections uninfluenced by the caprice,
cowardices or partisanship of hierarchical authority
holding it and unintimidated by the threat,
tantrum or vandalism of strong-arm tactics, exacts
the embarrassing price of vigilant monitoring.
Democracy digs its grave where passions, tensions
and violence, on an overpowering spree, upset
results of peaceful polls, and the law of elections is
guilty of sharp practice if it hastens to legitimize the
fruits of lawlessness. The judicial branch has a sen-
sitive responsibility here to call to order lawless
behaviour. Forensic non-action may boomerang,
for the court and the law are functionally the body-
guards of the People against bumptious power,
official or other.”
editor@indialegallive.com
WELL-DEFINED
POWERS
(L-R) The Election
Commission of India
building in Delhi, Polling
officers checking EVMs
TheSC-interpretedlawsaysthattheEChaspowersto
postpone,rescheduleelectionandorderre-polls.Butitmust
seetheelectoralprocesstoitsendandannouncetheresults.
| INDIA LEGAL | April 3, 2017 5
Anil Shakya UNI

6. Contents
Conflict Resolution
The Chief Justice of India offers a negotiated settlement to the Ram Mandir-Babri Masjid
dispute, but with tensions on the rise, can it work out?
16
LEAD
VOLUME. X ISSUE. 20
APRIL3,2017
OWNED BY E. N. COMMUNICATIONS PVT. LTD.
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309
Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411
e-mail: editor@indialegalonline.com
website: www.indialegalonline.com
MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,
Mumbai-400058
RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar,
Ranchi-834002.
LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,
Lucknow-226001.
PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak,
Opposite Lalita Hotel, Patna-800023.
ALLAHABAD: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001.
Editor Inderjit Badhwar
Senior Managing Editor Dilip Bobb
Deputy Managing Editor Shobha John
Executive Editor Ajith Pillai
Contributing Editor Ramesh Menon
Associate Editors Meha Mathur,
Sucheta Dasgupta
Deputy Editor Prabir Biswas
Staff Writer Usha Rani Das
Senior Sub-Editor Shailaja Paramathma
Art Director Anthony Lawrence
Deputy Art Editor Amitava Sen
Senior Visualizer Rajender Kumar
Graphic Designer Ram Lagan
Photographers Anil Shakya, Bhavana Gaur
Photo Researcher/ Kh Manglembi Devi
News Coordinator
Production Pawan Kumar
CFO
Anand Raj Singh
VP (HR & General Administration)
Lokesh C Sharma
Advertising
Valerie Patton
Mobile No: 9643106028, Landline No: 0120-612-7900
email: marketing@encommunication.org
Circulation Manager
RS Tiwari
Mobile No: 8377009652, Landline No: 0120-612-7900
email: indialegal.enc@gmail.com
PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd
andprintedatSuperCassettesIndustiesLtd.,C-85-86&94,Sector4,Noida,Distt.
GautamBudhNagar,UP-201301. Allrightsreserved.Reproductionortranslationinany
languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor
permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof
writersinthemagazinearenotnecessarilyendorsedby
ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe
returnofunsolicitedmaterialorformateriallostordamagedintransit.
AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd.
Managing Editor (Web) Parsa Venkateshwar Rao Jr
Editor (Content & Planning) Sujit Bhar
Senior Content Writer Punit Mishra
(Web)
Technical Executive Sonu Kumar Sharma
(Social Media)
Technical Executive Anubhav Tyagi
6 April 3, 2017
Unravelling the Riddle
An analysis of the 137-year-old dispute shows why the Muslim community should be
magnanimous enough to accept the verdict of the Allahabad High Court
20
Safeguard against Injustices
A Private Member’s Bill by Shashi Tharoor promises remedies against all sorts of discrimi-
nation. But will it convince the political class enough for it to be passed in parliament?
22
ACTS&BILLS

7. REGULARS
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
Ringside............................8
Delhi Durbar......................9
Courts.............................10
Briefs...............................14
Media Watch ..................48
Satire ..............................50
Cover Design & Illustration:
ANTHONY LAWRENCE
Constitutional
Crisis
Will the links between the Russians and
the US president hit America at its core?
Will the compromised material Putin has
trigger Trump’s resignation?
46
| INDIA LEGAL | April 3, 2017 7
A Question of Veracity
There are numerous cases of men being falsely implicated by women and it is
only the courts that can offer succor
GENDER
GLOBALTRENDS
38
How to Clean a City
A landmark judgement has issued guidelines for waste man-
agement which could serve as a template for the entire country
30 Mega Entity
The Vodafone-Idea merger has led to the birth of India’s largest telecom entity.
Will it lead to a duopolistic market with the consumer being squeezed?
40
TELECOM
Abdicating Responsibility?
The new national health policy is tilted in favour of the private
sector, a clear departure from the established norm
26
HEALTH
Right Person for the Job
There are several points to be factored into the MoP for
appointment of judges for quick clearance of case backlog
24
LEGALEYE
Is This Life?
Though the Uttarakhand High Court has granted “living entity”
status to the Ganga, political will is imperative to save it
ENVIRONMENT
28
For God’s Sake
The murders of atheists like H Farook show how their constitu-
tional rights are unprotected while their killers go scot-free
CRIME
36
Pee and Pay
Can the government make it mandatory for restaurants to give
access to the public to their toilets based on Article 15(2)?
SOCIETY
34 Ghost in the Machine
Can EVMs be manipulated? That’s the question that Mayawati and the BSP
posed before the Election Commission, post-UP assembly election
42
MYSPACE
Teach, Don’t
Indoctrinate
A proposed state-run TV channel aims to
educate the public on legal issues. It can
serve its purpose only if it does not
become a mouthpiece of the government
44
MEDIA

8. 8 April 3, 2017
“
RINGSIDE
There is no need to make humble requests
anymore, as the basic reason for which members
get elected is to attend parliament.
—Prime Minister Narendra Modi, interrupting
parliamentary affairs minister Ananth Kumar who was
requesting MPs to attend parliament
There is nothing unethical.
The word unethical comes
into picture when you
indulge in horse-trading of
people from other political
parties…. In a hung situa-
tion, to form a governing
coalition post-election is a
necessity of democracy.
—Goa CM Manohar
Parrikar, on the BJP being
invited to form the govern-
ment, in The Times of India
It is clearly the RSS agen-
da and UP is the new
experimental field for it….
This gentleman has a
criminal record. Several
charges like rioting and
more serious offences are
against him in various
courts in UP. Then why
this rhetoric of ending
criminalisation?
—CPI (M) leader Brinda
Karat, in FirstPost
One should not raise
questions about a chief
minister barely a day
after he takes charge. I
will not speak a single
word against him for
six months.
—Samajwadi Party
General Secretary Ram
Gopal Yadav, talking about
UP Chief Minister Yogi
Adityanath with
mediapersons
It is now clear… that the
beliefs and approach to
leadership that have guid-
ed my career are inconsis-
tent with what I saw and
experienced at Uber, and I
can no longer continue as
president of the ride
sharing business.
—Outgoing Uber Prez
Jeff Jones, in a statement
citing reasons for resign-
ing from the company
If you intend to fight,
fight the newspaper and
television. Let go of your
stubbornness to salvage
journalism. Journalists
themselves do not want
to be saved!
—NDTV anchor Ravish
Kumar, receiving Kuldip
Nayyar Award for
Journalism in recognition
of his “outstanding
journalism”
Just one advice, start
respecting human beings
also apart from animals.
All are not as successful
as you are. All are not as
talented as you are…You
are the wittiest, and the
best in your field. But
don’t act like a ‘God’.
—Comedian Sunil Grover,
on a popular show host
Kapil Sharma’s outburst
against him, on Twitter

9. There are two spins being given at the party
headquarters on Akbar Road to the
Congress debacle in UP. One school holds
Rahul Gandhi (right) completely responsible
and recommends a major surgery at the top
if the Congress is to revive. But there are oth-
ers who blame it all on Prashant Kishor, the
wiz-kid strategist who forged the mahagat-
bandhan between the Congress and the SP.
After the results, Kishor has literally become
an untouchable with Congress chief ministers
of Karnataka and Himachal Pradesh saying
they don’t require his services when assem-
bly elections are due next year. Meanwhile,
the buzz is that the Samajwadi Party may not
pay for the “disservice” rendered by Kishor,
adding to his woes. The
Congress, it is learnt, will
clear the 60 percent share
it owes him, but Akhilesh
may not cough up the
other 40 percent. Moral
of the story: those
who work for
political parties
must take their
money in
advance.
Delhi
DurbarAn inside track on
happenings in Lutyen’s Delhi
It seems incredible, but just one remote
district in Pauri-Garhwal in Uttarakhand has
produced a contemporary power list that is
impossible to match. That list includes the
current National Security Adviser, Ajit Doval
(left), the newly-elected chief minister
of the state, Trivendra Singh Rawat,
as well as his predecessor, Harish
Rawat, the current army chief, Bipin
Rawat, the recently appointed chief of
India’s external intelligence agency,
the Research & Analysis Wing
(R&AW), Anil Kumar Dhasmana, and
the Director General of Military
Operations (DGMO), General AK
Bhatt. Collectively, considering the
institutions they head, they are easily
the most powerful group in the gov-
ernment. And to think they all belong
to a district which has a population of just five
lakh! The buzz is that Doval may be the man
pushing his jaatbhai—he has control over
R&AW, the army chief superseded two others
and the DGMO (Bhatt has just taken over)
plays a key role in dealing with Pakistan and
cross-border surgical strikes.
| INDIA LEGAL | April 3, 2017 9
One man whose political
fortunes seem on the
downside is Home Minister
Rajnath Singh (left). The
fact that his name was
being mentioned in the
context of a shift to the
chief minister’s bungalow in
Lucknow immediately after
the election results were
out, suggested that his role
as head of the home min-
istry could be under threat.
That was followed by the
fact that his son, Pankaj,
who had won handsomely
from Noida in his debut
assembly election, was not
even considered for a post
in Yogi Adityanath’s ministry
even though other first-
timers like Srikant Sharma
and Siddharth Nath Singh
got in. Sharma is said to be
a loyalist of Finance
Minister Arun Jaitley, while
SN Singh owes his political
clout to BJP chief Amit
Shah. Even during the wild
celebrations by the BJP
after the election results,
Rajnath stayed in the
background.
A tweet by maverick
politician Subramanian
Swamy (above) when
votes were being
counted for the UP
elections raised many
eyebrows. It said: “I
think Mayawati will pull
off a Donald Trump.”
The correction only
came a few hours
later: “I had intended
to say Namo, instead
by oversight, I said
Mayawati.’’ As a man
who tweets obsessive-
ly, it’s difficult to imag-
ine him misspelling
Mayawati for Namo.
COMEDY OF
ERRORS
HOME OR OUT?
PAURI POWER
THE FALL GUY

10. The Supreme Court agreed
with the contention of the
Competition Commission of
India (CCI) that telecasting
dubbed serials of films in
Bengali was not illegal and
attempting to disrupt their
telecast was against the
Competition Act 2002.
The CCI had gone to
Court against a decision of
the Competition Appellate
Tribunal supporting a move
by Eastern India Motion
Picture Association (EIMPA)
and Coordination Committee
of Artists and Technicians of
West Bengal Film and Tele-
vision Investors. They had
asked TV channels in West
Bengal not to show the
Mahabharat serial, dubbed in
Bangla. Doing this, they felt,
was against the interests of
the film and TV industry in
West Bengal. In their com-
munication to the channels
they also cited the old and
accepted trend in the state
not to telecast serials dubbed
in Bangla.
Two of the TV channel
owners went to CCI after
EIMPA and the other commi-
ttee said that they would
withdraw their support if
the channels did not fall in
line. CCI had challenged
the tribunal’s stand in the
apex court.
Telecasting
dubbed serials
not illegal
To provide relief to people restricted
by the Specified Bank Notes Cessa-
tion of Liabilities Ordinance from depo-
siting `500 and `1,000 notes after
December 31, 2016, the Supreme Court
asked the centre and RBI if they were
thinking about giving them another
chance to do so by March 31, 2017.
The ordinance became operational on
December 31, 2016.
The top court wanted to know why
the centre didn’t think of allowing people
with “real problems” to deposit banned
currency by March 31, 2017, when it did
the same for NRIs and people staying
abroad. It pointed out that the PM him-
self had given an assurance on Nov-
ember 8 that demonetised currency
could be deposited by March 31, 2017,
at RBI branches all over India. The centre
should have taken cognizance of his
assurance, it felt.
The centre was asked to file its
response by April 11. The Court was
responding to a plea which alleged that
despite the PM’s promise and the RBI’s
notification, the ordinance was imposed.
The counsel for the centre argued
that law was above the PM’s promise
and the earlier RBI notification and noth-
ing could be done.
Extending the banned
notes deadline
The Supreme Court not only put its
seal of approval on the Calcutta High
Court order asking for a CBI probe into
the Narada sting case but also extended
the timeframe of the probe to one month.
The Calcutta High Court had asked the
CBI to submit a preliminary enquiry into
the sting operation done by Narada
News, within 72 hours. The sting had
shown ministers of Trinamool Congress
accepting bribes for favours. As per
media reports, CBI had already comple-
ted the preliminary enquiry.
The Bengal government had rushed to
the top court after the March 17 High
Court verdict arguing that the probe wou-
ld be unfair and motivated as the CBI
was under the NDA government’s con-
trol. It also questioned the high court’s
intention in asking for a CBI probe,
although it later apologised profusely.
The state government was ready
for a SIT probe overseen by the
Supreme Court. The top court struck
down the plea, but gave the assur-
ance that if doubts arose over the
veracity of the CBI probe, the High
Court would be asked to monitor it.
It observed that doubting the inten-
tions of the CBI wouldn’t be proper
as it was a premier agency of the
country. The report of the prelimi-
nary enquiry could always be
challenged in courts, the top cou-
rt observed.
Courts
10 April 3, 2017
No relief for
Mamata

11. AGurugram court handed out life sen-
tences to 13 accused in the murder of
Awanish Kumar Dev, the general manager
(human resources) of the Maruti Suzuki
plant in Manesar. Apart from the 13, four
more were given five-year imprisonment,
with 14 others, accused in rioting, injuring
officials and the murder in the plant being
fined and released. The accused had
already served four years in detention, so
they had one year left.
In August 2012, when disciplinary act-
ion was taken against a worker at a facility
of the plant, employees got agitated and
went on the rampage. They torched a part
of the factory in which the manager,
Awanish Kumar Dev, was present at the
time. The workers had not stopped at that.
They assaulted 100 others, bludgeoning
them with rods. The wounded included
some foreigners and policemen.
Marutimurdercase
APIL to double the number of judges at
high courts was set aside by the
Supreme Court as it felt that the existing
vacancies needed to be filled beforehand.
According to reports, the 24 high courts
have a sanctioned strength of 1,079 judges
but are operating with 624 judges.
The PIL pointed out that such a move
was necessary to ensure time-bound deliv-
ery of justice. The Court felt that the plea
was redundant but agreed to send the PIL
to a committee which discussed ways to
expedite the judicial process.
PILonjudgesstruckdown
Karnataka was directed by the Sup-
reme Court to continue releasing
2,000 cusecs of water from the Cau-
very river to Tamil Nadu till it took a
final call on all pleas (from Karnataka,
Kerala and Tamil Nadu) on the Cauvery
Water Dispute Tribunal order, after
hearing them from July 11.
Tamil Nadu and Kerala were in the
top court over the sharing of Cauvery
waters. While Tamil Nadu alleged that
Kerala was flouting the Tribunal’s
orders for building check dams, Kerala
denied that water from the Cauvery
river was being used for the purpose.
The Court, however, sought an
undertaking from Kerala on this but did
not pass orders to stop the construc-
tion of check dams.
Cauvery Tribunal
orders to stay
ALudhiana farmer has been com-
pensated for the loss of his land in
kind. The Railways had acquired a
piece of Sampuran Singh’s land for
laying a track but he felt he had
been underpaid. He approached a
trial court in 2015 and won the
case for enhanced compensation of
`one crore. But when the Railways
still didn’t pay him, he filed an
appeal. Additional Session Judge
Jaspal Verma not only ordered the
Swarn Shatabdi train running
between Delhi and Amritsar to the
farmer, he also gave the farmer own-
ership of the station master's office
in Ludhiana.
The Railways sought further time
to pay the compensation, and the
court has agreed to give it three
weeks’ time, till April 7.
The Supreme Court was told that the
tanks used by the priests of the
Sree Padmanabhaswamy Temple in
Thiruvananthapuram to bathe (before
performing daily rituals) were filthy,
with sewer being released into them
from areas close by. The amicus curi-
ae, Gopal Subramaniam, also pointed
out that the principal deity needed to
be restored and the roof of the sanc-
tum sanctorum fixed.
Taking strict cognizance of the
feedback, the Supreme Court ordered
the Kerala Water Authority to stop the
flow of sewer into the tanks by May
15. It also asked the temple adminis-
tration to invite expressions of intent
from experts to do the other jobs,
including cleaning up of the tanks by
April 17. The Court would then look
into these applications and decide how
the work will be shared.
Repair Kerala temple
| INDIA LEGAL | April 3, 2017 11
Train as
compensation!

12. The Supreme Court
has said that a larger
bench should examine
the process of designat-
ing senior advocates.
This was considering
the importance of the
issue and the effect it
may have on advocates
if the Court gave a ver-
dict. It decided to place
the matter before the
chief justice of India so
that a larger bench
could be constituted.
Former additional
solicitor general, Indira
Jaising, had
objected to the
current system
adopted by high
courts and the
Supreme Court.
She alleged that
it was unconsti-
tutional, unfair,
opaque and
exclusive. Jaising had
approached the Court in
July 2015. She felt that
promising lawyers did
not get the designation
and the voting system
under secret procedure
was riddled with inten-
sive lobbying. Jaising
pleaded for fresh and
uniform rules in the
matter.
The Bar Association
wanted the old system
to continue till the apex
court reached a conclu-
sion but the National
Lawyers’ Campaign for
Judicial Transparency
held the view that it
couldn’t be allowed.
Advocates’
matter
before CJI
T
he case relating to posting
of objectionable videos of
women and children on
social media went a step further
in the Supreme Court. After
internet companies still showed
helplessness in blocking such
content, the Court formed a
committee led by additional
secretary in the Ministry of
Electronics and IT. It would also
have home ministry officials and
an advocate, Aparna Bhatt.
But most significantly, Goo-
gle, Microsoft, Yahoo and Face-
book were asked by the Court
to depute experts to attend a
meeting with the committee for
15 days from April 5 to April 20.
According to the Court order,
the head of the committee was
also asked to submit a report on
the deliberations. The hearing
has been postponed to April 24.
The apex court is looking
into various aspects of the mat-
ter for more than a year now on
a petition filed by Prajwala, an
NGO in Hyderabad.
Committee on
offensive videos
— Compiled by Prabir Biswas
Courts
Why were welfare schemes of the gov-
ernment like the Mahatma Gandhi
National Rural Employment Guarantee
Scheme (MGNREGS) and the National Food
Security Act not being taken
seriously by states hit by
drought, the Supreme Court
wondered. It asked the chief
secretaries of all these states to
appear in court and give an
explanation on April 26. The
Court had earlier asked the
states to set up a foolproof sys-
tem that worked in implementing
the schemes.
The centre was also asked to inform the
Court about its efforts to make MGNREGS
effective in these states in a detailed report.
The Court’s remark came after it noticed
certain loopholes related to man-days of
workers involved in the scheme.
The Supreme Court agreed that
pension, allowances and perks
given to former MPs and MLAs
were indeed questionable at face
value. It wants proper guidelines to
be framed in this regard and has
referred the matter to the centre
and the secretary generals of the
Lok Sabha and Rajya Sabha, the
Election Commission and the
attorney general.
The Court was responding to a
petition from NGO Lok Prahari wh-
ich had objected to such “need-
less” benefits, and wanted it to
pass an order to cancel them. It
pointed out that money for these
benefits came from ordinary, tax-
paying citizens’ salaries.
The NGO’s plea was earlier
struck down by the Allahabad
High Court. The top court had also
asked advocate Kamini Jaiswal to
assist in the case, and she raised
many significant points: a) money
for pension given to erstwhile
legislators came from the Conso-
lidated Fund of India, to which
they did not contribute; b) a
majority of legislators were too
rich to depend on pensions;
c) there was no legal process to
sift or scrutinise the facilities;
d) uncalled for changes had been
made over the years in the con-
cerned act to suit MPs.
Examine facilities
for former
lawmakers
12 April 3, 2017
Explanation sought
over welfare schemes

13. Courts/ Lawyers’ Protest
HE Bar Council of India
(BCI) has withdrawn its rec-
ommendations to the Law
Commission of India seek-
ing a ban on lawyers going
on strike and imposing tough penalties
(fines and suspension of licenses) on
those who seek to defy the rule. One of
the recommendations was tough action
against lawyers who keep away from
appearing in courts and for other defi-
ciency of services.
BCI president Manan Kumar Mishra
was forced to take this step after lawyers
in Delhi did not attend courts as a mark
of protest and instead, assembled out-
side BCI’s office in Delhi on March 23.
They took objection to BCI’s sugges-
tions, claiming it was an infringement
on their rights and their freedom was
being restricted. The strike was called by
the lawyers’ coordination committee of
the All District Court Bar Associations.
Mishra assured the lawyers that the
recommendations had been withdrawn,
and said that he had to take this step
keeping their sentiments in mind. He
pointed out that the Delhi Bar
Association’s demands could not be
ignored as it had always supported BCI
and was very active. He said that it was
time that members of the Delhi Bar
Association, other such associations
across India sat down together to evolve
a consensus on the issue.
Mishra said that the Law Commi-
ssion had sent a different set of sugges-
tions on penalising errant lawyers to the
law ministry despite withdrawal by the
BCI. He said that no suggestions could
be accepted which did not have the
sanction of bar councils and bar repre-
sentatives. Government nominees by
themselves could not decide arbitrarily
on the action to be taken against
lawyers, he stressed.
A countrywide agitation by lawyers
would take place in case the Law
Commission did not retract, he said.
CORRUPT SYSTEM
Rajiv Khosla, former president, Delhi
High Court Bar Association, who spear-
headed the strike, was livid when asked
about the action taken by the Law
Commission. He told India Legal: “The
Law Commission can only recommend
and even its earlier recommendations
have been struck down by the govern-
ment.” Supporting the strike called by
the lawyers, he said: “The interests of
lawyers need to be protected from a
biased, corrupt and high-handed legal
system. We are only fighting for the
rights of litigants and the public are vic-
tims of the current judicial system.”
Hitting out at the Law Commission,
Khosla said: “The Law Commission is
headed by a retired judge of the Sup-
reme Court and it wants to ensure that
lawyers remain mere puppets in the
whole scheme of things. The judiciary
wants to suppress lawyers and throttle
their voice.” Lashing out at the judicial
system, he said: “Lawyers have to bear
the brunt of a system that smacks of
corruption, nepotism and other ills.
They are squarely blamed for all the
malaise in the system. The situation is
deplorable, to say the least.”
He lamented that the government
had looked the other way instead of
tackling the issue. “The government is
scared of the judiciary; an effective
mechanism needs to be evolved to tackle
problems.” When asked what would be
the next step if the Law Commission
does not withdraw its recommenda-
tions, Khosla warned: “An all-India
strike by lawyers would follow and we
will ensure that all judicial work comes
to a standstill in India.”
Gathering
Storm
AnattemptbytheBarCouncilofIndiato
acttoughagainsttheseprofessionals
goingonstrikewasthwartedwhenthey
warnedofanall-Indiaprotest
By Prabir Biswas
| INDIA LEGAL | April 3, 2017 13
T
ON THE SAME PAGE: (L-R) BCI President
Manan Mishra and former president of Delhi
High Court Bar Association Rajiv Khosla
Despite the withdrawal of suggestions by the
BCI, the Law Commission submitted its own
recommendations to the government

14. Briefs
The Election Commission has
supported the demand for a
lifetime ban on contesting polls for
those candidates who have been
convicted in criminal cases. The EC
was responding to a PIL by Delhi
BJP spokesperson Ashwini Kumar
Upadhyaya in the Supreme Court.
The EC is in favour of setting up
special courts to decide criminal
cases involving people's representa-
tives, public servants and members
of the judiciary. As of now, convicts
are debarred from contesting for six
years after serving their sentences.
The SC-mandated Environment
Pollution Control Authority, in
consultation with the Central
Pollution Control Board, has pro-
posed in a draft plan for air pollution
control that parking on footpaths be
made a cognizable offence and vehi-
cles be impounded for severe parking
violations. Among “short term”
measures, it seeks raising parking-
related fines to 10 times the present
amount. The draft plan also suggests
that parking areas be demarcated
and equipped with metering sys-
tems, signages and IT for informa-
tion on parking availability to reduce
cruising time and on-street manage-
ment.
The Jat agitation in the national
capital region has been suspend-
ed for a fortnight following assur-
ances by Haryana chief minister ML
Khattar even as dharnas continue to
disrupt life in the state. The commu-
nity demands inclusion in the Other
Backward Classes (OBC) list which
would give them reservation in edu-
cation and jobs. A law was passed by
the Haryana assembly on March 29
last year in the wake of the Jat agita-
tion, providing 10 percent quotas in
government jobs for Class III and IV
posts and six percent reservations in
Class I and II posts to them.
However, the High Court had stayed
it in May.
Will parking on footpaths
be an offence?
New CBSE format
for VI-IX classses
The Central Board of Secondary
Education has replaced its con-
tinuous and comprehensive evalua-
tion scheme for classes VI-X with a
“uniform system of assessment,
examination and report card”. The
new format, a “gradual movement
towards quality education through
standardisation of teaching, assess-
ment, examination and report card“,
will require schools to adhere to the
CBSE’s template. These range from
exams to report cards, which will
bear the logo of the board. The
changes being brought in are linked
to the restoration of the Class X
board exams from 2018, Board
chairperson RK Chaturvedi has said.
Cabinet clears four
GST Bills
The Union Cabinet has cleared
four supporting GST legislations,
paving the way for their introduction
in parliament. The Compensation
Law, the Central-GST (C-GST),
Integrated-GST (I-GST) and Union
Territory-GST (UT-GST) would be
introduced as money bills. While the
State-GST (S-GST) has to be
passed by each of the state legisla-
tive assemblies, the four other laws
have to be cleared by parliament.
“With the Cabinet approval of these
four bills, the GST regime in India is
in the final stages of culmination
and the GST law will most likely be
implemented from July 1, 2017,” the
finance ministry said.
Jat stir called off for now
EC banon
convicts
14 April 3, 2017

15. Anil B Divan, senior advocate, consti-
tutional expert and one of the most
respected members of the Supreme
Court bar, passed away on March 20.
He was 86. The father of eminent
Supreme Court senior advocate Shyam
Divan, Anil was yet to hang up his
gown, having appeared in the Cauvery
water disputes as counsel for the gov-
ernment of Karnataka. He had recently
been appointed by the Supreme Court to
replace Fali Nariman as amicus curiae
in the BCCI case. A founder of the
Centre for Public Interest Litigation in
the 1980s, he appeared in many land-
mark cases, including the Jain hawala
case, the Oleum gas leak case, the
Bhopal gas tragedy case, the case chal-
lenging the Prevention of Terrorism Act
and Rupa Hurra vs Ashok Hurra case,
in which the law relating to curative
petitions was set out. He also appeared
in the NJAC case and had been a
member of the Committee on
Judicial Accountability.
Legal luminary Anil Divan
passes away
The CBI has arrested the chairman-
cum-managing director of public
sector enterprise Engineering Projects
India Limited (EPIL), SPS Bakshi. Its
two executive directors have also been
held. They were caught taking a bribe of
` 10 lakh. CBI spokesperson RK Gaur
said a case was registered against the
trio and a Raipur-based company for
criminal conspiracy. The bribe was
reportedly sought from the company in
exchange of a contract for a project
in Odisha.
PSU officers in CBI net
| INDIA LEGAL | April 3, 2017 15
Women employees in the central
government, who file com-
plaints of sexual harassment at the
workplace, can now claim up to 90
days of paid leave during pendency of
the inquiry. The special leave will be
granted on the recommendation of
the internal panel probing the charges
and will be in addition to leave given
to central government employees. The
move comes amid complaints of the
accused trying to threaten survivors.
The government has proposed to make
the Aadhaar number mandatory for
filing income tax returns and while apply-
ing for a new Permanent Account
Number (PAN) from July 1. According to
the new provisions in the finance bill, tax-
payers must link their PAN cards with the
Aadhaar numbers or else these will be
deemed invalid. Those not having
Aadhaar cards as of now must submit
their enrollment numbers. The move
comes after the labour ministry made the
linking of Aadhaar cards with employee
provident fund (EPF) accounts mandato-
ry in January despite an order to the con-
trary by the apex court.
On March 23, the centre justified the
step with Finance Minister Arun Jaitley
saying it was necessary to plug evasion
and fraud and the UID could eventually
replace other identity cards such as PAN
and voter ID. Mentioning that 98 percent
of Indian adults, or 108 crore people, have
such a card, Jaitley said: “We can't allow
people to say ‘I won't apply for Aadhaar,
but through multiple PAN cards will con-
tinue to evade taxes’.”
The Enforcement Directorate has attached assets
of controversial Islamic preacher Zakir Naik and
others, worth `18.37 crore. These were in the form of
mutual funds, properties and bank balance. The
move is in connection with the money laundering
probe against Naik. The agency issued a provisional
order under the Prevention of Money Laundering
Act attaching mutual funds worth about `9.41 crore
and five bank accounts containing deposits worth
`1.23 crore in the name of Naik’s NGO, Islamic
Research Foundation.
Soon, Aadhaar must
for filing I-T returns
ED attaches Zakir Naik’s assets
—Compiled by Sucheta Dasgupta
Paid leave for harassed women

16. Lead/ Ayodhya Dispute
16 April 3, 2017
HIEF JUSTICE of India,
Justice JS Khehar, through
his oral observations in
court on March 21, in res-
ponse to the plea of Bha-
ratiya Janata Party (BJP)
member of Rajya Sabha and habitual
gadfly Dr Subramaniam Swamy for the
construction of Ram temple on the site
of Babri Masjid in Ayodhya has sent the
political class and the media into a tizzy.
Khehar said that he would be able to
take up the Ayodhya case only after the
summer vacation, or until three more
judges are appointed to the apex court.
He also said that this was a difficult iss-
ue, involving sentiments, and it would
be better if the parties involved were to
come to an out-of-court settlement. He
offered that he would not mind being
the mediator, or if the parties wanted he
could ask someone from among the
“brother judges” to be the mediator.
Chief Justice Khehar said: “These are
issues of religion and sentiments. These
are issues where all the parties can sit
together and arrive at a consensual deci-
sion to end the dispute. All of you may
sit together and hold a cordial meeting.”
He asked Swamy to contact the parties
and get back to the court.
Subramaniam Swamy filed a petition
for the construction of Ram temple on
the mosque site in November, 2016. It
was clubbed with the other appeals
against the Allahabad High Court judg-
ment in the Ayodhya case. Swamy want-
ed an early hearing of the case. He is
seeking “judicial intervention” for res-
Temple Tensions
Rise Again
TheoverwhelmingvictoryoftheBJPintheUPassemblyelectionsfuelsexpectationsthat
thepartywoulduseitselectoralmajoritytobuildtheRamtempleonthesiteoftheBabriMasjid
By Parsa Venkateshwar Rao Jr
C

17. olving the issue and for building the
temple. He is not challenging the Alla-
habad High Court judgment like the
other appellants.
T
he Muslims have reacted with
alarm, and the Hindu organisa-
tions welcomed the Chief Jus-
tice’s remarks. Kalraj Mishra, a seasoned
BJP leader from Uttar Pradesh and
member of the Union cabinet, told India
Legal: “It is a good suggestion. If the
two sides agree to an out-of-court settle-
ment, we would welcome it.”
When asked whether the BJP would
take the initiative of bringing about a
compromise, given the fact that the par-
ty is comfortably ensconced in power
both at the Centre and in the state, he
clearly ruled out any role for the BJP in
the matter.
BJP patriarch LK Advani told rep-
orters: “The Supreme Court’s observa-
tion is a welcome step and I hope in the
light of the apex court’s advise, all con-
cerned parties will reach a consensus
and find a solution to resolve the Ram
Temple issue.”
Asaduddin Owaisi, leader of the All
India Majlis Ittehadul Muslimeen
(AIMIM) of Hyderabad, and Member of
Parliament (Lok Sabha), said there
could not be any talk of mediation and
compromise because earlier attempts to
do so have failed, and that the Supreme
Court must now dispose of the appeal
against the Allahabad High Court judg-
ment of September 30, 2010, now pend-
ing in the apex court. As to whether he
feared that the BJP would pass a law
facilitating the construction of the tem-
ple on the disputed site, he told India
Legal: “The BJP government would not
do it. It will wait for the Supreme Court
to give its verdict.” Owaisi, known as an
adversarial Muslim voice, is confident
that the BJP would not use its majority
in Parliament and a brute majority in
the UP assembly to push for the con-
struction of the temple.
Majid Memon, prominent Mumbai
criminal lawyer and the Nationalist
Congress Party (NCP) member of Rajya
Sabha, welcomed the Chief Justice’s sug-
gestion, but thinks it would be difficult
for Justice Khehar to push for it. “Jus-
tice Khehar has only few months left in
office and it will not be possible for him
to oversee the mediation. It will require
a longer time,” he told India Legal.
A senior Congress functionary and
member of Rajya Sabha, speaking on
condition of anonymity, welcomed the
suggestion. And he too expressed the
confidence that the BJP would not mis-
use its legislative majority in Delhi and
Lucknow to push for the construction of
the temple. He said UP Chief Minister
Yogi Adityanath would not be the
Hindutva hothead in office.
T
he reason that the observations of
Justice Khehar went viral, using
the jargon of social media, is that
there is a sense of expectation on the
part of Hindu right-wingers and appre-
hension on the part of the Muslims and
secularists that with the BJP enjoying
an impregnable majority in the Uttar
Pradesh assembly poll verdict, and a
simple majority in the Lok Sabha post-
2014, the party which gained political
dominance over the contentious Ram
Janmabhoomi-Babri Masjid dispute is
now finally in a position to facilitate the
construction of the “grand temple” in
Ayodhya at the site where the Babri
Masjid stood and which was razed to
the ground by a mob of karsevaks or
Hindutva storm-troopers on Decem-
ber 6, 1992.
The BJP’s calibrated stance over the
issue has been that there should either
be a negotiated settlement or all sides
should have to abide by the court ver-
dict. But the party is not a disinterested
or a neutral bystander. The construction
of Ram temple in Ayodhya is part of the
core agenda of the BJP, along with Art-
icle 370 regarding special status to Jam-
mu and Kashmir and Uniform Civil
Code (UCC).
Since Modi’s take-over of the party,
the issue of Article 370 has receded into
the background, especially so since the
BJP is part of the coalition government
along with the Peoples Democratic Party
(PDP) led by Mehbooba Mufti in
Srinagar. The party has not abandoned
the goal of bringing in the UCC. Many
Muslims suspect that the BJP’s opposi-
tion to triple talaq is part of the strategy
to push forward UCC.
The stand of the BJP on the Ram
temple issue is not as clear as its posi-
tion with regard to the other two ques-
tions. During the 2014 Lok Sabha elec-
tion campaign, then prime minister-
ial candidate Modi did not refer to it.
The party’s then in-charge of UP, Amit
Shah cursorily referred to the goal of
building a grand Ram temple in
Ayodhya, but subject to the proviso of
negotiated settlement or abiding by the
court verdict.
The question that right-wing Hindu
| INDIA LEGAL | April 3, 2017 17
“Theseareissues
whereallthe
partiescansit
togetherandarrive
ataconsensual
decision....”
ChiefJusticeof
India,JSKhehar
Ihopeinthelight
oftheapexcourt’s
advise,allcon-
cernedpartieswill
reachaconsensus
andfindasolution.
LKAdvani,onCJI’s
observation
LegalluminarySoliSorabjipoints
outthatjudgmentofthecourt
wouldbebindingonallthe
parties,whichisnotsointhe
caseofamediateddecision.

18. Lead/ Ayodhya Dispute
and Muslim organisations face is whe-
ther they would accept the apex court
verdict if it goes against them. Zafaryab
Jilani, Lucknow-based lawyer and
convenor of the Babri Masjid Action
Committee (BMAC) told India Legal in
a telephonic conversation:“We will abide
the verdict of the court. What the court
says will be the law of the land.” But he
insisted that the court must deliver the
judgment, and that there is no scope for
mediated settlement.
J
ilani explained that there were four
attempts at mediation over the last
30 years, and all of them had fai-
led. The first was by the Kanchi Shan-
karacharya, Chandrasekhara Saraswati
in 1986 but it fell through because the
All India Muslim Personal Law Board
(AIMPLB) wanted the terms and condi-
tions of the compromise from the Hindu
side to be presented in black and white,
and it was not done.
The second attempt was during
Samajwadi Janata Party leader Chandra
Shekhar’s tenure as prime minister in
late 1990 and early 1991. The talks fell
through because Congress withdrew
support to his minority government.
The third attempt was made by
18 April 3, 2017
Prime Minister PV Narasimha Rao in
the second half of 1992, months before
the Babri Masjid was demolished.
The fourth attempt was made by
Kanchi Shankaracharya Jayendra
Saraswati in 2002. But the compromise
document prepared by him, which came
into public domain, was unacceptable
as it said that Muslims should surren-
der three mosques, including the one
at Ayodhya.
Jilani says that keeping in mind
these failed attempts at a compromise, it
does not serve any purpose to suggest
another round of mediation. But he said
that Chief Justice Khehar’s suggestion
for an out-of-court settlement was legal
because Section 89 of the Civil Proce-
dure Code (CPC) empowered the court
1528: During the reign of Mughal
Emperor Babur, a mosque, Babri Masjid
was built in Ayodhya on a site which
many Hindus consider as the place of
birth of Lord Ram. Babri Masjid was
named after Babur.
1853: First recorded violent clashes
broke out at the religious site.
1859: The colonial British administra-
tion created fences to separate worship
places; Muslims were allowed to use the
inner court while the Hindus used outer
court.
1949: Idols of Ram Lalla are placed
surreptitiously under the central dome.
The Government proclaimed the site as
a disputed area and locked the gate.
1950: Gopal Simla Visharad filed first
suit in Faizabad civil court for rights to
perform pooja to Ram Lalla.
Paramahansa Ramachandra Das also
filed a suit for continuation of pooja and
keeping idols in the structure.
1959: Nirmohi Akhara filed third suit.
1961: UP Sunni Central Wakf Board
filed fourth suit
1984: Vishwa Hindu Parishad (VHP)
formed a committee to liberate the birth
place of Lord Ram and build a temple.
1986: Muslims also formed Barbi
Mosque Action Committee after the dis-
trict judges issued an order to open the
gates of the mosque and allow Hindus
to worship there.
1989: The newly-elected Rajiv Gandhi
government allowed the VHP to perform
shilanyas for the Ram temple on the dis-
puted land. VHP laid the foundation to
build a Ram Temple adjacent to the dis-
puted mosque site.
1989: The four suits pending were
transferred to the High Court.
1990: The then BJP president Lal
Krishna Advani took out a cross-country
rathyatra to garner support for a Ram
temple at the site. He was arrested in
Bihar on October 23. The BJP withdrew
its support to the government.
1991: Kalyan Singh government in UP
acquired 2.77 acre land in the area and
gave it on lease to Ram Janmabhoomi
Nyas Trust. The Allahabad High Court
stopped any permanent construction
activity in the area.
1992: In July, several thousand karse-
vaks assembled in the area and the work
for maintenance of temple started. This
activity was stopped after intervention of
the prime minister. Meetings started
between Babri Masjid Action Committee
and VHP leaders in presence of the
home minister. On October 30, Dharam
Sansad of VHP proclaimed in Delhi that
the talks have failed and Karseva will pre-
sume from December 6.
6 Dec 1992: The Babri Mosque was
demolished by a gathering of near
200,000 karsevaks. Communal riots
across India followed.
16 Dec 1992: The Congress govern-
ment at the Centre, headed by PV
Narasimha Rao, set up a commission
of inquiry under Justice Liberhan.
A timeline of the dispute as it has unfolded
Ayodhya:SuchaLongJourney
TheRamtempleinAyodhyais
partofthecoreagendaofthe
BJP,alongwithArticle370and
theUniformCivilCode.

19. to ask the contesting parties to go for
arbitration or mediation.
F
ormer attorney general Soli Sor-
abji told India Legal that Justice
Khehar’s suggestion was “well-
intentioned but impractical” and the
court now must decide the case. He
said a judgment of the court would be
binding on all the parties, which is not
so in the case of a mediated decision.
The Supreme Court will have to
decide the case on legal merits and
demerits. What is the crux of the
Allahabad High Court judgment? In a
section of the judgment called “Gist of
the Findings”, it noted that “both the
parties (Hindus and Muslims) have
failed to prove the commencement of
their title. Hence by virtue of Section
110 Evidence Act both are held to be
joint title holders on the basis of joint
possession.”
The High Court therefore gave the
preliminary decree that 2.77 acres of the
disputed site should be partitioned
among the Nirmohi Akhara, the Hindu
Mahasabha representing the deity, Ram
Lalla, and the Sunni Wakf Board.
It is usually the case that only one of
the parties is aggrieved with a verdict.
But here, all the parties involved in the
case challenged the judgment. Justices
Aftab Alam and RS Lodha of the Sup-
reme Court had stayed the order of the
Allahabad High Court on May 9, 2011.
Justice Aftab Alam of the Division Ben-
ch which issued the stay order said: “At
least on one issue, all of you are unani-
mous. The High Court has granted a
new relief which no one has asked for it.
The High Court has done something on
its own. It has to be stayed.”
Justice Lodha described the High
Court’s conclusion as “something stra-
nge” and observed: “A new dimension
has been given by the High Court as the
decree of partition was not sought by
the parties. It was not prayed for by
anyone. It has to be stayed.”
| INDIA LEGAL | April 3, 2017 19
1993: The government took over 67
acres of land around the area, sought
SC's opinion on whether there existed a
Hindu place of worship before the struc-
ture was built.
1994: Case sent back to Lucknow
Bench of HC.
27 Feb 2002: VHP declared March
15 as the deadline to begin construction
of Ram Temple. Hindu activists returning
from Ayodhya on a train were attacked in
Godhra. Nearly 58 people were killed.
Mar 2002: 1,000-1,500 people were
reportedly killed in the riots following the
Godhra incident in Gujarat.
Apr 2002: The Lucknow bench of
Allahabad High Court of three judges
began hearings of the case.
Jan 2003: Archeologists started a
court-ordered survey to find out if a Ram
Temple existed on the site.
Aug 2003: The survey found evi-
dence of temple beneath the mosque.
However, Muslim groups disagreed with
the findings
Sept 2003: A court ruling charged
seven Hindu leaders and said they
should stand trial in the demolition case.
However, no charges were brought
against LK Advani on the ground that the
case was relating to the volunteers who
had razed the mosque. The same was
upheld by Allahabad High Court in 2010.
Nov 2004: An Uttar Pradesh court
ruled that previously ruling of exonerating
LK Advani should be reviewed again
since he said in October 2004 that his
party was unwaveringly committed to
build the Ram Temple.
July 2007: The apex court refused to
admit a review petition on the case.
July 2009: The Liberhan Commission
filed its report on Babri Mosque demoli-
tion—17 years after it was set up.
Nov 2009: The commission’s content
was made public which followed huge
uproar in the parliament as the report
named many leading BJP politicians.
Sept 2010: Allahabad High Court’s
ruling gave one-third possession of the
site each to Muslims, Hindus and
Nirmohi Akhara.
By a 2-1 majority verdict, (in the ben-
ch of Justice SU Khan, Justice Sudhir
Agarwal and Justice DV Sharma), plain
tiffs representing Lord Ram, the Nirmohi
Akhara and the Waqf Board were
declared joint title-holders of the pro-
perty. The bench asserted that the
portion under the central dome of the
demolished three-dome structure where
the idol of Ram Lalla had been kept in a
makeshift temple was the birthplace of
Lord Rama “as per faith and belief of
the Hindus.”
2010 Allahabad High Court upheld the
decision of trial court to drop the charges
against LK Advani.
Dec 2010: The Akhil Bharatiya Hindu
Mahasabha and Sunni Waqf Board
moved to the Supreme Court, challen-
ging part of the Allahabad High Court’s
verdict.
2011: The CBI appealed against the
High Court order against dropping of
charges against LK Advani. Advani
and others sought dismissal of the CBI
petition, citing delay as reason.
9 May 2011: The Supreme Court
stayed the High Court order splitting the
disputed site in three parts; remarked
that the HC verdict was surprising as
no party wanted a split of the site.
March 21, 2017: The Supreme Court
said charges against senior BJP leader
LK Advani and other leaders cannot be
dropped and that the case may be
revived. The apex court said Ram
Temple is a sensitive issue and should
be settled out of court through discus-
sion between the two sides.
BMACconvenorZafaryabJilani
saysthere’snoscopefora
mediatedsettlementasfour
earlierattemptshavefailed.

20. Lead/ Ayodhya/Legal Background
20 April 3, 2017
HIEF JUSTICE Jagdish
Singh Khehar has acted
with sagacity in asking for
an amicable settlement in
the Ram Janmabhoomi-
Babri Masjid Case. The
failure of previous endeavours should
not stand in the way of another attempt.
There were a total of four suits filed,
which were clubbed and jointly tried by
the three judge bench of the Allahabad
High court.
The judges, in separate judgments,
passed an equitable order on the basis of
the facts and evidence directing the divi-
sion of the disputed land into three
parts. The area of the land where the
makeshift temple is situated is to be
allotted to the Plaintiff-deity. The area
where the Ram chabutara and Sita rasoi
is shown on the map, is to be allotted to
Nirmohi Akhara and the third portion is
to be allotted to Sunni Wakf Board.
There were 28 issues framed in the
suit and the contentions would be rele-
vant to understand the rival claims.
Whether Babur/Mir Baqi construc-
ted the mosque in the year 1528 on the
area after demolishing an existing
Hindu temple.
Whether the Sunni Wakf Board has
title to the property and was in exclusive
possession and uninterruptedly per-
forming prayers in the mosque till its
dispossession in 1949.
Whether the Ramlala Virajman deity
has title to the property and is in exclu-
sive possession, while uninterruptedly
performing prayers and worship
Whether the other plaintiff, Nirmohi
Akhara, has title to the property by
adverse possession or otherwise.
PRE INDEPENDENCE LITIGATION
The dispute between Hindus and
Muslims over worshipping rights started
in 1853, resulting in periodic violence.
In 1855, the civil administration made
arrangements for both Hindus and
Muslims to worship, by dividing the
mosque premises. In 1885, Raghubar
Das, the Hindu mahant of Ram chabu-
tara, filed a civil suit before Faizabad
sub-judge for constructions of a temple.
The sub-judge and the district judge
dismissed the suit but both observed
that the mosque was built on a land
considered sacred by Hindus. The order,
however, was to maintain status quo on
the grounds that it was too late to reme-
dy the grievance.
Historical records disclose that Mus-
lims and Hindus jointly offered prayers
till 1855. The priest of Babri Masjid in
1858, in his petition to the British govt,
stated that the courtyard had been used
by Hindus for hundreds of years.
POST INDEPENDENCE
The second phase of the litigation start-
ed in December 1949 when idols were
installed under the middle doom of the
temple. The District administration, to
avert a law and order problem, locked
the gates. Priests were allowed to go
inside from an alternative entrance to
conduct worship. A comprehensive suit
was filed seeking declaration that the
The
Deity’s
DomainTheChiefJusticehasthrowntheproverbialcat
amongthepigeonsbyhissuggestionfor
negotiationsbetweenthetwosidesinthe
Ayodhyadispute.JJusticeKSreedharRao,
looksatthelegalimplications
C
Holidayiq.com

21. entire disputed area belongs to the deity.
It sought perpetual injunction against
the Sunni Waqf Board and individual
Muslims not to interfere in construc-
tion of a temple and for demolition of
the mosque.
The Board filed a counter suit for
declaration that the disputed property is
a public mosque known as Babri Masjid
and prayed for delivery of possession of
the mosque after removal of the idols. In
law, a suit for declaration is not tenable
without consequential relief. The Waqf
Board did not seek consequential relief
of possession but left it to the discretion
of the court. Such a suit could not be
maintainable in law.
With regard to the title to the disput-
ed property, two of the judges found
that the Sunni Waqf Board had no title
to the property. However, the other jud-
ge held that the Waqf Board, the deity
and Nirmohi Akhara were in joint pos-
session and nobody had exclusive pos-
session. Therefore an equal allotment
of one-third to each of them should be
made. In Hindu law a deity is a perpetu-
al minor capable of owning the property.
The person who manages the property
of the deity is only the trustee , as
guardian on behalf of the deity, can sue
and be sued. In Muslim law, a property
dedicated for religious and charitable
purposes will be owned by Allah and
called Waqf property. The Waqf can be
created orally. Once created, its validly is
irrevocable. A person can create Waqf of
a property rightfully held by him.
There is irrefutable finding that
beneath the mosque under the sub-soil,
exists a temple. The fact that the temple
was destroyed or was in a ruined state
does not take away the title of the deity
over the land. Similarly, in Muslim law,
if a mosque is destroyed or is dilapidat-
ed, the property vests in Allah and con-
tinues to be Waqf property. It is a invio-
lable mandate of the holy scriptures of
Islam that a person can dedicate a prop-
erty to Waqf over which he has a right.
But a disputed property cannot be dedi-
cated to Waqf. In the present litigation
the disputed property is vested with the
deity irrespective of whether temple was
destroyed or ruined. It is impermissible
in Islam to dedicate the property for
Waqf by constructing a mosque over
which the deity had lawful rights.
The finding of the majority of the
judges was that the Waqf of Babri
Masjid was not lawful and valid accord-
ing to the tenets of Islam. Hence the
Sunni Waqf Board cannot claim title
over the disputed property.
A different view taken by Justice
Sigbhat Ullah Khan is also, in one way,
correct because the facts and evidence
disclose that in the year 1885 the civil
administration managed by British
divided the mosque into two parts by
putting a divider. It was found by the
judges that Hindus were conducting
worship in the outer courtyard and the
inner courtyard and there had been
joint worship by both communities.
Therefore construing the disputed prop-
erty as a joint property would justify the
division and distribution of the land in
three equal parts.
DEMOLITION AND AFTER
The first disputed contention about the
demolition of the temple and construc-
tion of the mosque by Babur/Mir Baqi is
a vexed question which relates to histor-
ical antiquity. There are historical ver-
sions which suggest that Babur demol-
ished the temple and constructed a
mosque over the land. Some Left wing
historians seriously contest the theory of
demolition, pointing to historical acc-
ounts by Tulsidas, Babarnama,
Akbarnama and the English traveller
William Finch, which do not refer to the
mosque built by Babur. The ASI excava-
tion did establish a temple structure
beneath the sub-soil structure of the
mosque. A mosque was built in Ayodhya
called Hanumangarhi by a general of
Aurangzeb in the 17th century. The land
on which it was built was granted to
Hindus by Nawab of Awadh on the con-
dition that the Hindus should not pre-
vent Muslims from conducting prayers
in the mosque, which had become dilap-
idated. When Muslims of Ayodhya req-
uested the mahant for permission to
reconstruct the mosque, he offered to
construct the mosque at his cost.
The world is being divided on reli-
gious lines. It is the need of the hour
that India should stand united. The
cause of secularism would be well
served by an amicable settlement, as
suggested by the Chief Justice.
The author is former acting chief
justice of the Gauhati and Karnataka
High Courts
| INDIA LEGAL | April 3, 2017 21
Thefactthatthetemplewas
destroyedorwasinaruinedstate
doesnottakeawaythetitleofthe
deityovertheland.
TESTIMONY TO HISTORY
(Left) Hanumangarhi and (above) Sita rasoi in
Ayodhya, deeply associated with the
religious beliefs of Hindus for centuries

22. Acts & Bills/ Discrimination and Equality Bill
RIVATE Members’ Bills
(PMBs)—those presented
by Members of Parliament
other than ministers—
have a very poor record of
seeing the light of day.
Between 1952 and 1968, while 14 PMBs
became laws, between 1968 and 2014,
none of the PMBs were enacted. In
2014, the Rights of Transgender Persons
Bill, a PMB, was introduced by DMK
MP Tiruchi Siva. The government
adopted the Bill, with changes, and
passed it in 2016.
The reason the government cites for
non-passage of a PMB is that it would
come up with a better bill or that the
bill's concerns are already addressed in
the existing laws. Therefore, when
Congress MP Shashi Tharoor intro-
duced the Anti-Discrimination and
Equality Bill in the Lok Sabha on March
10, it evoked interest and curiosity.
In the 14th Lok Sabha, 328 Private
Members’ Bills were introduced, but
only 14 were discussed. If Tharoor’s Bill
provokes a debate in parliament and
outside, it must be due to its merits. The
chief merit is that it extends prohibition
of discrimination on grounds of religion,
Let’s Be
Fair to AllAPrivateMember’sBillbyShashi
Tharoorpromisesremediesagainstall
sortsofdiscrimination.Butwillitbe
passedinparliament?
By Venkatasubramanian
P
22 April 3, 2017
INCLUSIVE APPROACH
The proposed Bill seeks to
extend prohibition of
discrimination to many
disadvantaged
sections of society.
(Clockwise from top left)
Miss Wheelchair India 2015
Priya Bhargava; Members of
the All Jammu and Kashmir
Handicapped Association
staging a protest
demonstration;
members of a
khap panchayat
UNI

23. at present an exception among liberal
democracies for not enacting a compre-
hensive law against discrimination, cov-
ering both the public and the private
sectors,” the Bill noted.
Tharoor tweeted that the Bill owed
its origin to the efforts of Tarunabh
Khaitan, who is an Associate Professor
and the Hackney Fellow in Law at
Wadham College, Oxford University,
UK. Author of “A Theory of
Discrimination Law” (OUP 2015),
Khaitan had proposed a similar Bill to
the Delhi government last year. The
AAP government, which initially
showed interest in its adoption, back-
tracked for inexplicable reasons.
Khaitan has expressed the hope that the
Lok Sabha will now send the Bill to a
standing committee for scrutiny.
One of the key features of this Bill,
according to Khaitan, is that discrimina-
tion is normally seen as a civil rather
than a criminal offence. The focus is on
compensation and redress for the vic-
tim, rather than punishment for the dis-
criminator. The usual modes of enforce-
ment of civil court orders will apply for
non-compliance. The only departure
from the civil nature of the Bill is that
there are some special provisions for
aggravated discrimination where a mag-
istrate can be approached for a protec-
tion order.
The Bill mandates the formation of
Central and State Equality Commissions
to inquire into any matter, seek any
information and facilitate the resolution
of any dispute or issue any order under
the Act.
Whether it will lead to a just and
equitable society waits to be seen.
race, caste, sex or place of birth, and
those not mentioned in Article 15(1) by
the State to similar discriminative acts
by non-State private entities.
WIDE SPECTRUM
A “protected characteristic” in relation
to a citizen of India is defined in the Bill
as “caste, race, ethnicity, descent, sex,
gender identity, pregnancy, sexual orien-
tation, religion and belief, tribe, disabili-
ty, linguistic identity, HIV status,
nationality, marital status, food prefer-
ence, skin tone, place of residence, place
of birth or age”. Based on this definition,
the term “disadvantaged group” is given
a wider meaning, which includes any
group which suffers untouchability,
racial and ethnic minorities in the
relevant geographical area, women and
inter-sex persons, transgendered
persons, hijras and gender non-con-
forming persons.
Thus, the Bill’s ambit includes situa-
tions when an employer refuses to inter-
view a candidate because he belongs to a
scheduled caste or when an employer
fires a female employee after her mar-
riage because he makes a stereotypical
assumption that married women do not
make efficient workers. A hospital which
hires only female nurses based on the
stereotypical assumption that women
are more caring than men or a housing
society which offers apartments on rent
only to married couples would attract
the rigours of the Bill. If a university has
a policy of conducting random security
checks of rooms of only Kashmiri stu-
dents, it too is likely fall foul of this Bill.
Creating an intimidating, hostile or
bullying environment for a person of a
protected group is deemed as harass-
ment and would invite penal action
under the Bill. Thus, a co-worker sprin-
kling “holy water” on a machine previ-
ously operated by a Dalit colleague
would be deemed harassment under
the Bill.
A khap panchayat ordering villagers
to stop all interaction with the families
of a couple who belong to different reli-
gions would be considered boycott in
relation to religion-cum-marital status,
again attracting the penal provisions of
the Bill. Threatening a Hindu boy with
violence unless he breaks off his roman-
tic relationship with a Muslim girl
would also be considered an offence
under the Bill.
MORAL BRIGADE
The Bill targets the moral brigade’s bid
to force a woman walking hand in hand
with a man who is not married to her to
tie a rakhi on the man’s wrist. A woman
in love with a man belonging to the
same gotra as hers, but finds her move-
ments restricted and monitored by her
family, could also get relief from the Bill.
Tharoor’s Bill reasoned that instead
of merely mandating punish-
ment for offences, we must
simultaneously engender
greater understanding and
empathy within the system
among the individuals who
constitute that system. “India is
WhenCongressMP
ShashiTharoor(left)
introducedtheAnti-
Discriminationand
EqualityBillinthe
LokSabha,itevoked
considerableinter-
estandcuriosity.
Tharoortweetedthat
theBilloweditsorigin
toTarunabhKhaitan
(left)ofOxford
University,who
proposedasimilar
BilltotheAAPgovt
inDelhi.
| INDIA LEGAL | April 3, 2017 23
NO POLICING NEEDED
The Bill targets the moral brigade
who may attack a couple holding
hands

24. HE Collegium system failed
to make recommendations
in time as laid down in the
Second and Third Judges
case; as a result, in all high
courts, the vacancy position
became alarming. Due to this, the prob-
lem of huge pendency of arrears
remained unsolved. The timely filling up
of vacancies is only an inchoate solution
for expeditious and just disposal of cases
before high courts. It is necessary that
the right persons are appointed with the
right subject knowledge and experience
for dealing with civil and criminal cases.
CASE PENDENCY
According to the Ministry of Law &
Justice, as on December 31, 2014, the
pendency of civil cases in high courts
was 31,16,492. Of these, 5,89,631 are
pending for more than 10 years. The
pendency of criminal cases was
10,37,465, out of which 1,87,999 are
pending for more than 10 years.
In the Supreme Court as on February
19, 2016, the pendency of civil cases was
48,418, out of which 10,132 were pend-
ing for more than 10 years. The penden-
cy of criminal cases was 11,050, out of
which 84 have been pending for more
than 10 years.
In a district, the judge is supposed to
dispose of 14 sessions cases in a month.
The ratio of disposal of civil/criminal
Legal Eye/ Memorandum of Procedure
T
The Right Person
for the Right Job
criminal and civil appeals should be
worked out with each high court
depending on its total/working strength.
The optimum rate of disposal and the
time-frame is achievable only if the
right persons are appointed for the
right cases.
It has been disclosed that 60 percent
of the inflow and pendency of cases in
every high court relating to civil and
criminal cases arises from subordinate
courts, while a majority if the remaining
40 percent relate to writ petitions and
appeals. Company matters and tax cases
are comparatively few in number. The
present rate of disposal is a little less
than the annual inflow in every high
court. Only writ petitions are getting
disposed of expeditiously, while civil and
criminal cases remain unattended,
resulting in a staggering backlog pend-
ing for over a decade.
It is, therefore, necessary that two-
thirds of the posts of judges in every
high court be filled up by persons who
have proficiency and extensive practical
knowledge in civil and criminal law. The
MoP should prescribe that. In every rec-
ommendation, it should insist that this
ratio be maintained. The recommenda-
tions for such judges should be substan-
tiated with authentic, verifiable materi-
al. This would be the right solution for
expeditious and just disposal of cases
and would also obviate arbitrariness and
TheMoPbetweenthejudiciaryandthegovernmentshould
keepinmindvariousissuesbeforethereisspeedydisposalof
thehugebacklogofcasesplaguingourjudicialsystem
By Justice K Sreedhar Rao
appeal varies from 3-4 appeals, equiva-
lent to one sessions case, according to
different yardsticks fixed by different
high courts. This would mean that a dis-
trict judge who disposes only civil
appeal should dispose of 56 of them to
reach the quota in a month. This means
three appeals a day. A judge of a high
court should have a capacity for a higher
number of disposals. Assuming that he
disposes of at least 4-5 civil appeals a
day, he would be disposing of 80-100
appeals a month. With 210 working
days, a judge should dispose of at least
800-1,000 appeals a year.
In the case of a high court, assuming
that at least 15 judges proficient in civil
law are made to deal with only civil
appeals, there would be disposal of
2,88,000-3,00,000 such cases yearly by
all high courts. In such a scenario, it
would take 10-11 years to dispose of the
arrears of 31,16,492 cases. If a similar
exercise is done in respect of criminal
cases, it would take around four years to
mop up the arrears.
The number of judges to be assigned
Thenumberofjudgestobe
assignedcriminalandcivil
appealsshouldbeworkedout
witheachHCdependingonits
totalworkingstrength.
24 April 3, 2017

25. MoP should give more thrust to merit
cum seniority as compared to the pres-
ent practice of seniority cum merit.
Whether it was under the aborted
NJAC or the Collegium system, unless
the right person is appointed for the
right job, neither the problem of arrears
nor the expeditious and just disposal of
cases will become a reality. The legal
scholarship and practical experience of
the recommendee is a matter that would
be decided objectively by the High Court
Collegium and the Supreme Court
Collegium as per the norms in MoP.
According to the old MoP, which the
Supreme Court collegium has virtually
rejected, the social antecedents, the
character and integrity of the recom-
mendee is a matter that the government
through the Intelligence Bureau would
collect andconvey to the Collegium for
consideration. If the entire process
becomes a matter of record, the ques-
tion of either the collegium or the gov-
ernment erring would not arise.
In that MoP, it could be agreed that
in the event of a conflict of views with
regard to any recommendation between
the Collegium and the government, it
would be desirable to leave it to the sole
decision of the President.
The writer is former acting
chief justice of Karnataka &
Gauhati High Court
nepotism that is now in vogue.
Invariably, every judge of a high
court having a service of around 10
years or more should be made to deal
with cases of different branches of law
and sufficiently for a period of two years.
This would give him sufficient expertise
on the subject. Elevation to the Supreme
Court or as chief justice of a high court
should be based on merit cum seniority.
Merit has to be objectively measured
and assessed on the basis of qualitative
and quantitative performance. The
assessment should be made a part of
the MoP.
AD HOC JUDGES
A citizen who has been at least five years
a judge of a high court or two or more
such courts in succession can be
appointed a judge of the Supreme Court
under Article 124. Article 127 provides
for appointment of an ad hoc judge to
the Supreme Court for a particular peri-
od if he is qualified to be appointed as a
judge of the Court. This provision has
remained unexplored. In the total
strength of 31 judges in the MoP, at least
10 posts should be earmarked for
appointment of ad hoc judges who are
proficient in dealing with civil and crim-
inal cases. This would give a competitive
zeal, incentive and encouragement to
judges of high courts who may not have
sufficient seniority but have the merit.
In the past, instances of elevation
from the Bar directly to the Supreme
Court were a rarity. The aggressive
number of elevations of senior
advocates of the Supreme Court Bar
who have earned lucratively from the
apex court can act as a dampener to the
legitimate expectations of judges of high
courts who have rendered devoted serv-
ice on paltry salaries. That apart, favor-
ing only senior advocates of the
Supreme Court for elevation gives a
sense of discrimination and inferiority
among senior advocates practicing in
different high courts. The MoP should
ensure that elevation from the Bar to
the Supreme Court should be only in
exceptional cases.
The MoP should provide that when-
ever a recommendation of the High
Court Collegium is not acceptable to the
Supreme Court Collegium, the issue
should be discussed with the Chief
Justice of the High Court before its final
rejection. The proceedings have to also
be recorded for perusal by the President.
There should be comparative analysis of
merit of all judges of high courts who
come up for consideration in the
Supreme Court. The MoP should incor-
porate the above requirement.
The obsessive adherence to the rule
of seniority vis-à-vis merit can be obvi-
ated when the assessment of merit is
transparent and objective. Hence, the
IN NEED OF SPEEDIER JUSTICE
(Left) Lawyers outside the apex cout that is plagued by huge pendency of cases;
(above) The Supreme Court of India
| INDIA LEGAL | April 3, 2017 25
Photos: Anil Shakya

26. Health Policy/ Private Sector
HE new National Health
Policy (NHP) announced
by the government on
March 15 promises every
citizen a healthy future.
Together with the ann-
ouncement made in the budget speech
about time-bound elimination of dis-
eases such as tuberculosis and kala-azar,
it is being projected as the biggest
health initiative of the Modi govern-
ment. But its critics say that it is tilted
in favour of the private sector and does
not focus on increasing public invest-
ment in health.
The first draft of the policy was pla-
ced in the public domain on December
2014 and has been the subject of consul-
tations with state governments and the
Central Council for Health and Family
Welfare. Since the draft was released by
the present government, it is supposed
to reflect its thinking. The previous UPA
government had established a high-level
experts group on Universal Health Cov-
erage (UHC) and had committed to im-
plement the report’s recommendations.
The UHC, as defined by the World
Health Organisation (WHO), implies
the government makes available a
minimum set of health services includ-
ing medicines to all citizens. Since the
role of the state is central to the con-
cept of UHC, it is deemed necessary to
strengthen primary care through new
and additional investments. The new
policy swears by UHC but it has pro-
posed its own definition which, in fact,
goes against the well-accepted concept
of universal health.
A NEW DEFINITION
The policy assures “availability of free,
comprehensive primary health care
services for all aspects of reproductive,
maternal, child and adolescent health
and for the most prevalent communica-
ble, non-communicable and occupation-
al diseases”. However, the state will not
do this. Instead, delivery of health care
services will be linked to a “health card”
to enable every family to have access to
a doctor of their choice from amongst
those volunteering their services. For
ensuring improved access and afford-
Shifting the Goal Post
Thenewpolicyannouncedbythegovernmentistiltedinfavourofthissectorproviding
universalhealthcoverage.Thisisacleardeparturefromtheestablishednormthatthe
stateiscentraltoprovidingmedicalservices
By Dinesh C Sharma
T
26 April 3, 2017
UNIVERSAL HEALTH
A doctor doing the
rounds in the children’s
ward in Patna Medical
College and Hospital
Photos: UNI

27. areas or regions with under-serviced
communities will be given opportuni-
ties. The idea is to use such private pro-
viders for tasks such as disease notifica-
tion and surveillance, sharing and sup-
porting laboratory services for identifi-
cation of drug resistant tuberculosis or
other infections and supplying restricted
medicines needed for special situations.
“This would greatly encourage such
providers to do better,” the policy says.
Overall, the policy brought in by the
NDA government is tilted in favour of a
greater role of the private sector in the
provision of health services across the
spectrum, and does not argue forcefully
in favour of enhancing public invest-
ment in health. While the role of private
sector in a large country like India can’t
be undermined, it can’t be given the
role of primacy. At a time, when many
countries in the world, including those
in Asia are moving towards a genuine
UHC framework led by public sector,
India is moving towards a system domi-
nated by the private sector without any
significant regulation or quality control.
The implementation of this policy will
further privatise Indian health system,
which is already among the most priva-
tised systems in the world. This certain-
ly does not augur well for health and the
well-being of people.
ability of quality secondary and tertiary
care services, it is proposed to use “a
combination of public hospitals and well
measured strategic purchasing of servic-
es in health care deficit areas, from pri-
vate care providers”.
The second point on which the policy
falls short of expectations is the need to
increase health expenditure as a per-
centage of the Gross Domestic Product
(GDP). The policy proposes raising pub-
lic health expenditure to 2.5 percent of
the GDP by 2025 which, it says, is “a
potentially achievable target”. The first
draft issued in 2015 had mentioned the
target year as 2020. At present, India
spends just 1.15 percent of GDP as pub-
lic health expenditure.
In addition to shifting the goal post,
the policy is now talking about a greater
spending by state governments. Funds
will be released based on a system of
incentives, development indicators and
capacity of states to spend. Otherwise,
general taxation will remain the pre-
dominant means for financing health
care. Like in providing care, for funding
too, the government will look to the pri-
vate sector. The policy says “funds avail-
able under Corporate Social Responsi-
bility (CSR) would be leveraged for well-
focused programmes aiming to address
health goals”.
In addition to “strategic purchasing
of services” from the private sector and
seeking private funds through CSR, the
policy wants the government to further
enhance the role of this sector. One of
the key objectives of the policy is to
“influence the operation and growth of
the private healthcare sector and med-
ical technologies” to ensure alignment
with public health goals. The govern-
ment will enable private sector contri-
bution “to making health care systems
more effective, efficient, rational, safe,
affordable and ethical”. The policy cla-
ims that “strategic purchasing” of servi-
ces from the private sector by the gov-
ernment to “fill critical gaps in public
health facilities would create a demand
for private health care sector, in align-
ment with the public health goals”.
PRIVATE SECTOR’S ROLE
Private sector engagement will go be-
yond contracting and purchasing, the
policy says. Private providers in rural
TIMELY HELP
(Left) A doctor attends to a patient in
Bodh Gaya; (above) Union Health Minister
JP Nadda
| INDIA LEGAL | April 3, 2017 27
Thenationalhealthpolicysays
“fundsavailableunderCSRwould
beleveragedforwell-focused
programmesaimingtoaddress
healthgoals”.

28. Environment/ Ganga and Yamuna
28 April 3, 2017
EW rivers in the world have
got the attention and rever-
ence that the Ganga has.
Though it is considered the
most holy river in India, it
continues to be ravaged by
man-made pollution, making it toxic
and dangerous at many stretches.
Government schemes to clean the
Ganga have been on for over 30 years at
a huge cost to the exchequer. But, for
the dying river, this is tokenism. So
when the Uttarakhand High Court ruled
that the Ganga and the Yamuna were
living entities, it ruffled a few feathers in
government circles who have been
repeatedly pulled up by the National
Green Tribunal for not taking punitive
action against polluters or the required
steps to keep the river alive.
A division bench of Justices Alok
Singh and Rajiv Sharma pointed out
that the two rivers were losing their very
existence. The judgment was intended
to ensure the preservation of both rivers.
Just a few days ago, New Zealand had
passed a landmark bill making the
Whanganui River a living entity with
full legal rights. A leading lawyer said
that the Uttarakhand High Court had
taken inspiration from this unique move
to pass the landmark order.
What this would mean is important.
As both the rivers have been stamped
living entities, they would have legal
rights like a person. The Court has des-
ignated an authority which would func-
tion like a guardian to the rivers and
also file cases on their behalf if they
F
ThoughtheUttarakhandHighCourthasgivenanordergranting“livingentity”statustothese
dyingrivers,thiswillhelpsavethemonlyifthereispoliticalwilltoimplementexistinglaws
By Ramesh Menon
IsthisLife?
POLLUTED WATERS
The Yamuna in Delhi
is a sorry sight
Anil Shakya

29. were being abused or polluted, for
instance.
The Court has appointed the
Director of the Namami Ganga pro-
gramme, the chief secretary and advo-
cate-general of Uttarakhand, who like
guardians, will ensure the well-being of
the rivers. They have been appointed to
serve as “parents” for Ganga and
Yamuna. “The Advocate General shall
represent at all legal proceedings to pro-
tect the interest of Rivers Ganges and
Yamuna,” the order said.
In numerous cases, officials of both
Uttar Pradesh and Uttarakhand have
been pulled up by the courts for not
ensuring the protection of the rivers.
Now, after this ruling, they can be sued
on behalf of the rivers. They would be
largely responsible for the funds that are
allocated for cleaning the rivers.
A
fter this ruling, the central gov-
ernment has to set up a Ganga
Management Board within two
months, which the Court said would
look after irrigation, rural and urban
water supply and generation of hydro
power, navigation and industries near
the river. Mining in the river bed of the
Ganga and its highest flood plain area,
the ruling said, has been forthwith
banned. The Court asked the district
magistrate and sub-divisional
magistrate to ensure the order
was implemented.
Kartikeya Sarabhai, Director, Centre
for Environment Education,
Ahmedabad, said: “It is on the major
rivers that our civilisation has evolved.
Today, many of our rivers are highly pol-
luted and have become sewers. It is crit-
ical that we restore them not only for
their ecological importance but also for
us as our lives are ultimately connected
to them.”
Noted environmental activist and
lawyer MC Mehta told India Legal: “It is
a wonderful order that underlines the
value of water in our lives.” He has bat-
tled with the courts on numerous envi-
ronmental issues. He pointed out that
there were many laws that can protect
the river, but have never been imple-
mented or enforced. “We have given the
Ganges the status of a God. But look at
the way we have destroyed it. It is
almost dead. There is no political will to
save the Ganga and Yamuna. State
authorities have told the courts that they
do not even know how many industries
there are on its banks and how many
drains are being emptied into it. There
is little hope with realities like this,”
said Mehta.
Mehta had, in an earlier petition,
pointed out that those who were pollut-
ing the Ganga were violating the funda-
mental rights of people living beside it.
The NGT had in a series of hearings
subsequently pulled up officials who
could not answer basic questions on
how thousands of crores had been spent
in the guise of cleaning it.
The Court said that in order to pro-
tect the recognition and faith of society,
Ganga and Yamuna were required to be
declared as living persons as they were
central to the existence of half of the
Indian population, their health and
well-being. Undoubtedly, this is an
unusual order but whether this will save
both these dying rivers remains to be
seen. It already seems too late as much
of the damage is irreversible.
Mehta stressed: “Empty platitudes
will not help. We all have seen
millions of people pray to the river
and worship it. But that has not stopped
criminals from killing it. There have to
be strict punishments as there are laws
for it. But, they have not been
implemented as no one cares. We
have seen executives in charge of these
rivers make fools out of politicians and
we have seen politicians make fools out
of people. Only if we see the river reviv-
ing from its death bed will there
be hope.”
| INDIA LEGAL | April 3, 2017 29
“Manyofourrivers
are pollutedand
havebecomesewers.
Itiscriticalthatwe
restorethem...”
—KartikeyaSarabhai,
CentreforEnvironment
Education
“Onlyifwesee
theriverreviving
fromitsdeath
bedwillthere
behope.”
—MCMehta,noted
environmental
activistandlawyer
RIVER MANAGEMENT A FARCE
Garbage being dumped into the Ganges In
Allahabad
Anil Shakya

30. Environment/ Uttarakhand/ Waste Management
30 April 3, 2017
OLID waste management
is a major challenge that
urban India is confronted
with. And the problem will
only amplify with increased
urbanisation. According to
estimates of the Union Urban Deve-
lopment Ministry, by 2050, half of
India’s population will be concentrated
in cities and towns. The 2011 Census
revealed that as much as 31 percent of
the country’s 1.21 billion population
resided in cities.
This shift from the rural to the urban
settlements brings with it a host of
problems. The biggest challenge is gen-
eration of solid waste, which includes
garbage, sludge, sewage, discarded mat-
erials including solid, liquid and con-
tainerised gaseous material, and semi-
solid refuse. These come from dwellings,
community activities and industrial and
commercial establishments.
While there are laws which address
the need to manage solid waste, includ-
ing Municipal Solid Waste (MSW)
Management & Handling [M&H])
Rules, 2000, later renamed as Solid
Waste Management (SWM) Rules,
2016, the problem has not been effec-
tively addressed. It is in this context that
the March 16, 2017, judgement of the
Uttarakhand High Court is being seen
as a landmark one. Here, the two-judge
bench issued detailed guidelines on
solid waste management for the Uttara-
khand government. This could serve as
a template for other states to follow.
According to an official of the Union
Urban Development Ministry, the Court
has set deadlines for the state govern-
ment to act and the newly-elected BJP
government in Uttarakhand will have
little option but to abide by it. The offi-
cial said: “I don’t think that the state
will even consider going in appeal agai-
nst the High Court judgement. Much of
what the Court has noted is already
there in central government rules and
in the Prime Minister’s Swachh Bharat
programme. It is the implementation of
the rules and the timeline that the Court
has underlined that makes it a signifi-
cant order.”
BEYOND THE PIL
Judges Rajiv Sharma and Sudhanshu
Dhulia of the Uttarakhand High Court
passed the order while disposing off a
PIL filed by the Sai Nath Seva Mandal
in 2012. The PIL had raised concerns
over the municipal waste generated in
Kashipur town (Udham Singh Nagar
district) being dumped into the Dhela
Taming
the TrashAlandmarkjudgementhasissueddetailedguidelinesfor
municipalwastemanagementwhichcouldserveasa
templatethattheentirecountrywoulddowelltofollow
By Ajith Pillai
S
M
ost of the statistics relating to the
volume of municipal solid waste
(MSW) generated are based on
a Central Pollution Control Board
(CPCB) study conducted in 2004-05.
From it, a figure of 0.4 kg per capita per
day of MSW was arrived at.
Since then, various estimates have
been made. The 2009 CAG report on
waste management estimated that
urban India produced 48 million tonnes
of MSW annually. The Department of
Economic Affairs estimated 58 million
tonnes for the same year. The CPCB
report for 2012 cited 47 million tonnes.
In 2014, the Planning Commission put
its estimate at 62 million tonnes. And in
2016, the CPCB estimated the annual
MSW generated at 52 million tonnes.
But what is worrying is the CPCB
estimate that only 23 percent of the
waste generated is processed or taken
to landfills or treated. According to its
data, six major cities (Delhi, Mumbai,
Chennai, Kolkata, Hyderabad and
Delhitopsthelist

31. river near the Sai Temple. The Court
first addressed the specific issues raised
in the PIL. It later enlarged the scope of
the writ petition through its April 27,
2016, order by directing magistrates of
all 13 districts in the state to “provide
prompt information in regard to the
steps being taken and progress made in
the matter for implementation of Waste
Disposal Management Rules” drawn up
by the central government in 2000 and
revised in 2016.
After receiving feedback from the
districts, the Court was constrained to
observe that “nothing concrete has been
undertaken by the state agencies includ-
ing the Panchayati Raj institutions. The
garbage is thrown all over the public
places. The garbage is neither segregat-
ed nor stored as per the provisions of
these Rules at the source…. What
emerges from the affidavits filed by the
District Magistrates is that no scientific
method has been evolved, till date, for
disposal of the municipal waste. Shock-
ingly, the urban waste is also being
dumped in the forest land. A number of
local bodies have no land available with
them for landfill trenching ground…. It
is thus, evident that in most of the local
bodies, the land is not available for sci-
entific disposal of the municipal waste”.
| INDIA LEGAL | April 3, 2017 31
The action plan for municipal solid
waste management drawn up by the
Uttarakhand government in 2015 does
recognise the problem. It pointed out
that the state was generating upwards
of 3,000 metric tonnes of solid waste
every day, of which only 40 percent was
collected but not disposed scientifically.
Virtually all the waste was dumped in
water bodies, burnt or buried illegally
in vacant land. The report estimated
that by 2040, the quantum of waste
generated in the state would touch
9,000 tonnes a day and underlined the
need to initiate action with urgency.
SIGNIFICANT POINTERS
While ruling in favour of the petition,
the judges made this significant obser-
vation: “Every citizen has a legitimate
expectation and right to sue the elected
representatives, officers/officials of the
Municipal Corporation, Municipalities
and Panchayati Raj Institutions, indi-
vidually and by way of collective action
claiming damages/compensation on the
principle of accountability in case these
officers remain remiss in discharge of
their statutory duties cast upon them by
the Municipalities Act, Municipal Cor-
poration Act and Panchayati Raj Act.”
The mandatory guidelines drawn
FLIP SIDE OF URBANISATION: (Left) A garbage dump in the hills of Uttarakhand; The High
Court of Uttarakhand wants the state government to clean up the mess
Bangalore) are responsible for 10
million tonnes of garbage a year. Of
these, Delhi tops the list with 3.3
million tonnes.
Experts say the landfill sites provid-
ed for cities do not have effective
waste recycling systems and waste is
often burnt, releasing toxic gases into
the air. Moreover, the landfill sites are
overflowing. Delhi has only 164 acres
of landfills when it requires over 640
acres going by CPCB estimates.
The situation is indeed alarming
and calls for urgent action.

32. up by the Court pay meticulous atten-
tion to details. Here are a few signi-
ficant pointers:
Public premises like parks, streets etc.
shall be “surface cleaned” daily by con-
cerned authorities—municipal corpora-
tions, nagar panchayats, panchayati raj
institutions
Officials of these organisations/insti-
tutions shall ensure that no garbage is
deposited in any street or public place
Workers cleaning the streets or
removing garbage, including medical
waste, should be provided proper uni-
forms and protective gear
The state government should decide
on proposals sent by municipal bodies
for managing solid waste within four
weeks (of the court order)
The nagar nigams of Dehradun and
Haridwar are directed to complete the
tender process relating to existing solid
waste management schemes within
eight weeks and implement them
Principal secretary, urban develop-
ment, Uttarakhand, is directed to pre-
pare the state policy and strategy on
waste management after discussion
with stakeholders within three months.
Land must be allocated to local bodies
for setting up processing and disposal
facilities for solid waste
The town planning department must
provide a separate place for segregation,
storage and decentralised processing of
solid waste in the development plan for
group housing or commercial, institu-
tional or other non-residential facility
“exceeding 200 dwellings”
All local bodies, including panchayats,
must ensure door-to-door collection of
segregated solid waste from households,
informal settlements, commercial and
non-residential institutions
There shall be a direction to the pub-
lic not to “litter, throw or dispose of any
waste such as paper, water bottles, liq-
uor bottles, soft drink cans, wrappers
etc., or burn or bury waste on streets,
public spaces, drains, water bodies and
to segregate the waste at source”. Heavy
fines must be considered on those who
violate laws
Local authorities are directed to set up
material recovery facilities with suffi-
cient space for sorting of recyclable mat-
erials. Hazardous domestic waste must
be deposited and dealt with separately
All local bodies are directed to con-
struct, operate and maintain sanitary
refills as per Schedule-1 of the Rules
of 2016
A public awareness drive is called for.
There shall be a direction to local autho-
rities not to dump garbage in rivers,
streams and forest land. There shall also
be a directive to all municipal authori-
ties to ensure there is no mixing of bio-
medical waste with other municipal
solid waste
Magistrates must be appointed within
six months for ensuring compliance of
the provisions of various laws and to try
offences relating to littering, sanitation
and public health
BEYOND THE PIL
Justices Sharma and Dhulia, while
drawing up the guidelines, drew atten-
tion to a Supreme court order of 1996
(Dr B.L. Wadhera v. Union of India &
others) which said that citizens have a
“constitutional as well as a statutory
right to live in a clean city. The authori-
ties concerned have a mandatory duty
to collect and dispose of the garbage/
waste generated from various sources
in the city. Non-availability of funds,
inadequacy or inefficiency of staff, insu-
fficiency of machinery etc. cannot be
pleaded as grounds for non-perfor-
mance of the statutory obligations”.
Copies of the Uttarakhand High
Court judgement have been sent to the
chief secretary, secretaries of urban
development and rural development,
the Uttarakhand Pollution Control
Board and the Comptroller Auditor
General of India “for implementation
of the direction in letter and spirit”.
It will do Uttarakhand, a popular
religious and tourist destination, a
world of good if the order is compl-
ied with.
32 April 3, 2017
“...noscientificmethodhasbeen
evolved,tilldate,fordisposalof
themunicipalwaste.Shockingly,
theurbanwasteisalsobeing
dumpedintheforestland.”
—UttarakhandHighCourtjudgement
TASK AHEAD
The newly-elected BJP government
in Uttarakhand headed by Trivendra
Rawat will have little option but to
abide by the deadlines set by
the court
Environment/ Uttarakhand/ Waste Management
UNI

34. ple who are paying up to `20,000 a day
to enjoy a certain level of comfort, serv-
ice and ambience.
SC GUIDELINES
Article 15(2) of the constitution pro-
hibits restriction to any citizen of India
on entry to a public hotel, restaurant or
place of entertainment on the grounds
“only of religion, race, caste, sex
[and/or] place of birth”. It is a funda-
mental right guaranteed to all citizens
of India.
Indeed, but a hotel or a restaurant is
a business which charges its clientele
Society/ Use of Hotel Toilets
PENING the toilets of
private hospitality enti-
ties like hotels and
restaurants to the public
in South Delhi is so
absurd that you cannot
even begin to absorb the ramifications.
This is not democracy at work, this is
creating a state of chaos. These are
places that charge huge sums of money
from their patrons to maintain hygiene
and offer above average cleanliness and
washroom facilities. To turn this into a
railway station loo for a ridiculous ` 5
per individual is to inconvenience peo-
for a certain level of service. It is not a
public toilet and the entrant cannot seek
the shelter of the Supreme Court deci-
sion if he intends to relieve himself and
move on without a contractual obliga-
tion to use other facilities.
The Supreme Court has also stated a
club or premise opened only to serve its
affiliates or members shall not be con-
sidered a public place for the purpose of
this provision of law.
So there are exceptions.
In its spirit, the provision under law
can be so interpreted: “If a citizen of
India is not denied admission purely on
Down in the Dumps!
O
Canthegovernmentmakeitmandatoryforhotelsandrestaurantstogiveaccessto
thegeneralpublictotheirtoiletsbasedonArticle15(2)whichprohibitsrestrictionin
suchplaces?Surelytoiletsarenotouthouses
By Bikram Vohra
34 April 3, 2017