India legal 03 september 2018

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
September3, 2018
Aadhaar Verification:
Defying the Supreme Court
Sexual Assault Cases:
Problem of mindset
ThewarningsignsforKerala’sworstfloodsinacenturywereallthereinthe
MadhavGadgilandKKasturiranganreportsaswellasadvicefromenvironmentalists.
Weretheynotheededontime?
CountdowntoDisaster

S this week’s cover story demonstrates,
India has an abysmal record of paying
heed to warnings of impending doom
even when they are backed by scientif-
ic evidence. This attitude is a toxic
mixture of governmental lethargy, callousness,
fatalism and denial. In a microcosm, the flooding
of Kerala, displacing more than a million people,
is one of the worst natural disasters in this centu-
ry. It is India’s New Orleans moment when Hurri-
cane Katrina rendered homeless some 4,00,000
residents in the south-eastern part of the US.
The hurricane arrived in August 2015 with
winds raging at up to 127 mph killing about 1,500
people. Government sources then averred that the
tragedy was unavoidable because Katrina was just
too big for the levees that were built to protect
the city. But investigators were later to discover
that this was just not so. Important levees, inclu-
ding canals in the city, one report said, “failed
with water levels well below levels they were
designed to withstand”.
As we face the impending horrors of global
warming which are causing floods, unprecedent-
ed storms and droughts and every conceivable
pattern of changes in the weather, there is no
escaping the fact—no matter how strong your
fatalism—that many of the weather disasters we
now suffer, as we are doing in Kerala—are not
only “natural” but also man-made. “Man-made”
because warnings by climatologists, engineers,
environmentalists, architects, hydrologists, went
unheeded by apathetic governments.
But the Kerala ecological disaster was just
waiting to happen, writes Papia Samajdar. The
ecosystem of India’s Western Ghats is under
severe stress and several committees had warned
that if untrammeled development and the felling
of trees, erosion of hills continue in this fragile
region, catastrophe would follow. “Roughly 30
percent of Western Ghats is under forests (before
2010) and this is a stabilising effect on the cli-
mate and rainfall on the western and eastern
sides. It has also played a vital role in carbon
sequestration and reduction of global warming.
However, the Ghats are under serious threat,”
Samajdar says.
In order to start preventive measures, Jairam
Ramesh, the then Union environment minister,
set up the Western Ghats Ecology Expert Panel
under Professor Madhav Gadgil in 2010. The
Gadgil panel found that mining, industries, real
estate and hydro-power were resulting in pollu-
tion and depletion of groundwater, siltation of
water bodies, increased frequency of floods, loss
of fertile agricultural land and deforestation.
In what amounts to a malafide action, the gov-
ernment under pressure from industrial and min-
ing lobbies junked Gadgil’s report and appointed
yet another group to go into the subject. This new
committee of sarkari experts reduced the ecologi-
cally sensitive area to 60,000 hectares, a stupen-
dous 43 percent decrease from that recommend-
ed by the Gadgil report. “The committee excluded
the area already under private control from pro-
tective regime to avoid unnecessary conflict,’’ a
member admitted.
There is a pattern to this criminal negligence
and the examples abound. For several decades,
Uttarakhand (then Garhwal) environmentalist
Sundarlal Bahuguna, the founder of the Chipko
Movement (hugging trees to save them), has been
shouting himself hoarse, warning against im-
pending disaster from construction of large dams
and destruction of mountains and forests. He vir-
tually predicted the devastation of Kedarnath—
the holy Hindu shrine that was swept away by
one of the deadliest floods in that area.
By axing trees and blasting mountains to build
dams and roads, the mountains are being weak-
ened, he said. “This in turn is paving the way for
natural calamities and compelling the people to
GREED-DRIVEN
SELF-DESTRUCTION
Inderjit Badhwar
Letter from the Editor
A
4 September 3, 2018
Committeescome
andgo,theNGTtries
itsbestbutthereis
noendto
themindless
destructionofthe
environment.The
Keralatragedywill
playitselfoutonTV,
politicianswillmake
politicalpoints,and
ultimately,
everythingwillbe
sweptundertherug.

run for shelter. By tampering with the fragile eco-
logy of the Himalayan state, we are inviting large
scale destruction like the Kedarnath flash flood
disaster in 2013.”
Another committee followed. This time it was
an Expert Body (EB) constituted on the direc-
tions issued by the Supreme Court in a judgment
dated 13.08.2013 (Alaknanda Hydro Power Co.
Ltd. versus Anuj Joshi & others). In a report sub-
mitted in April 2014 to the Ministry of Environ-
ment and Forests, the EB recommended that
strategic environmental assessment (SEA) be car-
ried out in other major river basins of Uttara-
khand such as the Yamuna and Kali.
“Scientific studies should be conducted for
establishing baseline data on river parameters,
diversity and populations of floral and faunal
species in different rivers of Uttarakhand at dif-
ferent elevation zones. Such studies should be
used for deciding upon the minimum distances
between two consecutive hydro-electric projects
(HEPs). Until such scientific studies are complet-
ed, no new HEPs should be cleared on the rivers
of Uttarakhand within a distance that may later
be revoked,” the EB recommended.
E
ven as this new report gathers dust, prepa-
rations are under way for clearance to
build the Sharda dam in areas bordering
Nepal. The ecological havoc will be gargantuan,
according to environmentalists. Additionally, in
adjoining Himachal Pradesh, four-laning of roads
with entire mountains being levelled and hun-
dreds of thousands of trees still being felled in the
lower Himalayas from Kalka to Shimla is already
causing landslides and unprecedented rises in
temperature in this fragile zone.
The Expert Body of 2014 also highlighted seri-
ous concern about the Indian deltas, which are
shrinking due to changes in river courses: “The
Ganga-Brahmaputra delta is also noted in this
category. This seems to be a major issue in near
future therefore we recommend that the studies
should be carried out regarding the impacts on
sediment transportation due to projects existing
on the way of Himalayan rivers of heavy silt load.”
We have long known about the unique charac-
teristics of floodplains, such as low relief terrain,
proximity to waterways and nutrient rich soil,
which have enabled rural and urban development
to thrive. Yet, right in the middle of the nation’s
capital, the Yamuna’s floodplain was dealt a mor-
tal blow by spiritualist Sri Sri Ravi Shankar’s Art
of Living (AOL) jamboree in March 2016, atten-
ded by over 35 lakh people, including central gov-
ernment ministers.
“The flood plains are not and cannot be equat-
ed to waste lands. They should not be treated as
lands lying fallow and utilized in the manner
which is unacceptable and would have adverse
impacts. It is the duty of the statutory authority,
Government and the people at large to protect
and preserve the flood plains or river Yamuna,”
the National Green Tribunal noted in a judgment.
It held AOL “responsible” for “causing damage
and environmental degradation” to the Yamuna
floodplains. But the Tribunal which had asked
AOL to pay `5 crore as compensation chose not
to punish the perpetrators any farther. Earlier
this year, an NGT-appointed expert committee
had noted that the rehabilitation of the flood-
plains would cost over `42.02 crore and may take
up to ten years.
Committees come and go, the National Green
Tribunal tries its best but there is no end in sight
to the mindless destruction of the environment.
The Kerala tragedy will play itself out on national
TV, politicians will make political points, one-
upmanship will be the name of the game in the
courts and, ultimately, as historical experience
shows, all lessons learned, warnings given, the
tragedy of lives lost and livelihoods shattered, will
be swept under the rug as we plunge headlong
into greed-driven environmental self-destruction.
| INDIA LEGAL | September 3, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Rajeev Tyagi
WRATH OF NATURE
(Left) Kedarnath was
devastated by flash
floods in 2013; (right)
the floodplain of
Yamuna in Delhi was
dealt a mortal blow in
2016 by the Art of
Living jamboree
Anil Shakya

ContentsVOLUME XI ISSUE 42
SEPTEMBER3,2018
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6 September 3, 2018
A Disaster Foretold?
The warning signs for Kerala’s worst floods in a century were all there in the Madhav
Gadgil and K Kasturirangan reports as well as advice from environmentalists. Were
they not heeded on time?
LEAD
14
The Gates of Hell
In the wake of the devastating floods, Kerala and Tamil Nadu once again take their fight
over the water levels in the Mullaperiyar Dam to the apex court
SUPREMECOURT
20
No to NOTA
The Chief Justice Dipak Misra-led bench has ruled that the “None of the Above” option
could undermine the purity of democracy if allowed in the Rajya Sabha elections
23

Death of a Rising
REGULARS
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Cover Design:
ANTHONY LAWRENCE
Cover Photo:
UNI
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
International Briefs..........29
Media Watch ..................49
Satire ..............................50
Cavalier Investigation 30
Kosher on the Face of It
UIDAI rolls out face recognition as an additional feature though the Supreme Court
verdict on making Aadhaar mandatory for services is still awaited
42
Enabling the Rapist
The judiciary has voiced concern over rising
child rape, but a change of mindset with
regard to understanding people’s behaviour
is crucial to curbing it, writes Dr Rajat Mitra
38
47Anachronistic IPR
Intellectual Property Rights is unable to
achieve its objectives in an age when
digitisation has radically changed the
consumption of copyrights
Extramarital Abetment?
In a controversial judgment, a two-judge bench has convicted a
man stating that his extramarital affair abetted his wife’s suicide
24
Jharkhand’s Khunti gang-rape
was a nasty ploy through which
the State got to the Pathalgadi
movement in the region and
successfully stifled it
Road to Perdition
Moves to build a highway through the eco-
logically sensitive Corbett National Park
were abandoned thanks to the green tri-
bunal’s show-cause notice
35
MYSPACE
COURTS
The Uttarakhand High Court has slammed the state government’s bid
to hand over prime property to Emami in the name of medico-tourism
32
An acquittal under the Narcotic Drugs and Psychotropic Substances
Act exposes the Punjab Police’s non-compliance with its provisions 45
Saving a Sanatorium
FOCUS
STATES
Controversial Petition
The demand by 356 soldiers for all court-monitored probes into fake
encounters in Manipur to be stayed will undermine the rule of law
26
Medium Is the Massage 34
The Delhi High Court has taken notice of a public interest litigation on
massage parlours soliciting customers for prostitution.
ENVIRONMENT
SPOTLIGHT

8 September 3, 2018
“
RINGSIDE
“I would like to
quell unfortunate
rumours that my
decision is linked to
any desire for any
seat. I continue
to hold all my
ex-party colleagues
in high regard.”
—Aam Aadmi
Party senior leader
Ashish Khetan,
after resigning from
the party
“I don’t know how
you can impeach
somebody who has
done a great job. If I
ever got impeached,
I think the market
would crash, I think
everybody would be
very poor....”
—US President
Donald Trump, who
is facing political
turmoil, in an inter-
view to Fox network
“I will not be cowed
down by such acts.
They are not God.
They can’t kill me.”
—Former J&K Chief
Minister Farooq
Abdullah, after he
was roughed up by
Kashmiris during
his special Eid
namaaz in the
Hazratbal mosque
“We as a team want to dedicate this win to the
flood victims in Kerala. This is our bit we can do
as the Indian cricket team. A tough time there. I
haven’t thought about the 2014 failures, but I’d
like to dedicate this one to my wife who is here
and keeps motivating me. She’s copped a lot in
the past but she deserves the credit for this one.”
—Indian cricket captain Virat Kohli after winning the third
Test against England at Nottingham
“He was the kind of
editor one would get
into arguments with,
and then he would
come to my room
and fix it, say sorry…
he had no ego. He
just wanted good,
honest work.”
—Eminent photogra-
pher Raghu Rai on
veteran journalist
Kuldip Nayar, who
passed away recently
in New Delhi
“Lawmakers will
have to make a
law to this effect.
But, at present,
there is no such
possibility. We are
going ahead with
our schedule for
the 2019 Lok
Sabha elections.”
—CEC OP Rawat
on simultaneous
Lok Sabha and
assembly polls
“It was a small
space.... He was
unable to distribute
it individually.... He
threw the packets
towards them so
that they could
catch them....”
—Former PM HD
Deve Gowda on son
Revanna, slammed
for throwing biscuits
at rain-affected vic-
tims in Karnataka
“It was a meeting
between two
friends.... All I can
say is that we talked
about peace. The
rest is up to the
governments con-
cerned…to take it to
a logical conclusion.”
—Punjab minister
and Congress leader
Navjot Singh Sidhu
on his meeting with
Pak PM Imran Khan

10 September 3, 2018
An inside track of
happenings in Lutyens’ Delhi
The other surprise appointment last week was
that of Ahmed Patel, the Congress warhorse
from Gujarat, who was made party treasurer.
Patel was Sonia Gandhi’s political secretary
through her long stint as party president which
made him the de facto number 2 in the organi-
sation. His re-appointment as treasurer after two
decades is on her recommendation and is con-
nected to the fact that the
Congress is starved for
funds with a majority of its
corporate donors having
shifted loyalties to the BJP.
Sources say that at an
informal interaction of sen-
ior party leaders last mon-
th, Rahul Gandhi had been
informed that with the
party’s coffers steadily
depleting, the Congress needed to raise `1,000
crore if it hoped to counter the BJP’s publicity
and campaign blitzkrieg in the forthcoming
assembly and Lok Sabha polls. The man Patel
replaces, Motilal Vora, now 90, was clearly found
wanting. What Sonia must have recalled was
that Patel, as the party’s treasurer during its
wilderness years from 1996 to 2000, had
ensured that there was never a crisis of funds.
MONEY MATTERS
The surprise appointment of Satya Pal
Malik as governor of J&K, a state entan-
gled in an upsurge of militancy and
protests, is nothing less than a high-
stakes gamble, one that could
boomerang badly. Till a few weeks ago,
the frontrunner for replacing NN Vohra as
governor was former Home Secretary
Rajiv Mehrishi. Since 1965, all governors
have been retired bureaucrats, intelli-
gence or army officers or those with
strong connections to the state, as in
Karan Singh, son of the erstwhile ruler
of Kashmir.
The reason the centre decided on a
career politician like Malik, is to manipu-
late the formation of a BJP government
by engineering defections from Meh-
booba Mufti’s PDP and to try to garner a
working majority in the 89-seat assembly.
In fact, the reason why Vohra refused an
extension was precisely because he
opposed the formation of another govern-
ment in the state.
Malik, a politician with a socialist
background, is 72 and better known for
his links to VP Singh and the Jan Morcha.
He joined the BJP only in 2004. BJP pres-
ident Amit Shah and local politician
Sajjad Lone are leading the charge to
poach from the PDP, their former alliance
partner. Already five PDP MLAs have
rebelled against Mehbooba. The BJP with
25 MLAs would require another 19 legis-
lators to form the government. The state
is currently under governor’s rule.
Kashmir experts say it is a dangerous
move, recalling that militancy started in
the state after the infamous “rigged” elec-
tion manipulated by the centre under
Rajiv Gandhi and Farooq Abdullah of the
National Conference.
GAMBLE IN THE VALLEY
That there is some domestic politics
involved in the Modi government’s
handout to Kerala, as opposed to
the massive amount required, is
quite obvious. The refusal by the
centre to accept the `700 crore
offered by the UAE government has
become a public controversy after
Prime Minister Modi thanked the
UAE for its “generous offer” and then
had the Ministry of External Affairs
turn it down. UAE Prime Minister
Mohammed bin Rashid al Maktoum
had tweeted—in Malayalam and
English—urging “everyone to donate
generously” towards relief efforts
in Kerala. The same day, Modi
tweeted: “A big thanks to
@hhshkmohd for his gracious
offer to support people of kerala
during this difficult time. His con-
cern reflects the special ties
between governments and people
of india and UAE.”
Now, the centre is falling back
on a policy formulated after the
2004 tsunami of not accepting
foreign assistance for natural dis-
asters on the grounds that it has the
ability and resources to respond to
emergency requirements. However,
the Kerala crisis is unprecedented
and the devastation so horrific that
not to accept help from countries
like the UAE which have a large
number of workers, managers and
entrepreneurs from Kerala, seems
churlish and smacks of petty politics
involving a non-BJP ruled state.
Now, the Indian mission in the UAE
has urged that donations be given in
cash directly to the Kerala chief min-
ister’s disaster relief fund.
THE KERALA CONUNDRUM

Delhi
Durbar
THE BIGOTED BRIGADE
The attacks on cricketer-turned-politi-
cian Navjot Singh Sidhu from the BJP
and its supporters in the media for his
embrace of the Pakistan army chief at
newly-elected Prime Minister Imran
Khan’s swearing-in in Islamabad can
be understood. A general election is
nearing and the Pakistan factor is guar-
anteed to win over a section of voters
and become a political weapon.
However, to be attacked by his own
chief minister Amarinder Singh is noth-
ing but the height of hypocrisy. Apart
from the fact that Sidhu went in his per-
sonal capacity as a friend of Khan’s, a
contemporary on the cricket field, there
is another reason why the Punjab CM
is being hypocritical, and that is a lady
called Aroosa Begum, often referred to
as the First Lady of Punjab. She is the
CM’s close companion (partner in con-
temporary terms), resides in his house
where she plays hostess, and often
accompanies him to non-political
events. She is a Pakistani journalist he
met during a visit to Pakistan in 2004.
She was then married with two children
and was a fairly well-known journalist at
the time, and someone who was con-
sidered well-connected with the
Pakistan military establishment. She
moved to Chandigarh a decade ago
and while she returns to Pakistan occa-
sionally, she is very much a permanent
resident of India now. For Amarinder to
be chastising Sidhu for his Pakistan
hug is a clear case of the pot calling
the kettle black.
THE SIDHU GOOGLY
Statistics are used the way a drunk
uses a lamppost—for support rather
than illumination—which explains why
the government has moved so swiftly
to suppress a report which showed
higher growth under the UPA than in
any of the NDA years. The report
appeared last week on the website of
the Ministry of Statistics and
Programme Implementation, and
immediately triggered a verbal battle
between the BJP and the Congress.
The back series report prepared by
a government-backed panel under
economist Sudipto Mundle (right), con-
cluded that India grew at a record 10.8
percent in 2010-11 when Dr Manmohan
Singh was prime minister. It compared
growth rates between the old series,
2004-05, and the new series based on
2011-12 prices.
Once the cat was out of the bag,
the PMO called the ministry which
hastily removed the report from its web-
site. The PMO followed up with a note
saying the official line was that the
report was only a draft and
“should not be quoted any-
where”. The report is now only
visible in the “Draft Report”
section of the National
Statistical Commission, and
government spokesmen are
quick to dismiss it as the per-
sonal views of Mundle. In an
interview after the storm broke,
Mundle defended the report
and said it was a committee
report, not his personal view.
THE GDP BATTLE
At a time of a natural calamity leading to
a massive humanitarian crisis, one
would imagine that every Indian would
be standing shoulder to shoulder, here
and abroad, with their brethren from
Kerala. Alas, members of the right wing
and their supporters cannot tone down
their bigotry and unfathomable logic.
Right in the midst of wall to wall cov-
erage on televisions showing the rav-
ages wrought by flooding, RSS ideo-
logue S Gurumurthy (left) gave vent to
his bias by saying that the floods were
the result of the Supreme Court allowing
women inside the Sabarimala temple.
The tweet caused widespread anger,
more so since Gurumurthy has just
been appointed to the board of the
Reserve Bank of India, making him an
ex-officio government servant. He was
ably, or disably, supported by another
prominent personality, Mohandas Pai,
chairman of Manipal Global Education
and former director at Infosys, also
known for his right-wing views (he is the
biggest investor in Arnab Goswami’s
Republic TV).
He retweeted a post by US-based
NRI Rajiv Malhotra, a hardcore propo-
nent of Hindutva, who had urged people
to “donate for Hindus and not victims of
other faiths”. His mind-twisted tweet
said: “please donate to help Kerala hin-
dus. Christians and Muslims worldwide
are raising money for their own people
and agendas.” Most of the Hindutva
trolls linked the natural calamity to the
local population’s dietary habits, particu-
larly beef eating.

Courts
—Compiled by India Legal Team
Voluntary retirement is
not a right, says SC
The apex court agreed with the UP govern-
ment’s rejection of applications for volun-
tary retirement by four senior doctors on
government payroll, saying that seeking vol-
untary retirement is not a matter of right. The
doctors were of the rank of joint directors
and senior consultants. The top court said in
its order that the government’s decision was
just in the backdrop of larger public interest
and a severe shortage of good and experi-
enced doctors in the state.
The case came in the apex court after the
Allahabad High Court directed the state gov-
ernment to grant voluntary retirement. This
order was set aside by the top court.
While responding to a petition seek-
ing a ban on political candidates
with criminal cases against them, the
Supreme Court made it clear that
enacting laws was the responsibility of
Parliament and it can’t venture into the
arena. Attorney General (AG) KK Venu-
gopal also sent out a warning of sorts,
saying that it was upto the electorate to
take a call on the criminal antecedents
of a candidate and nobody can be pro-
nounced guilty unless convicted by the
courts. The top court put the issue of
disqualification off the table.
However, the bench,
headed by Chief Justice of
India, Dipak Misra remarked:
“...what can we do to stop
this rot (criminalisation of
politics)?” It asked the AG if
it can in any way deprive
these candidates from at
least using the symbol of
their party. There seemed a
way out, because a directive
to the Election Commission
to frame a rule under the symbols or-
der would not be a legislative exercise
but an administrative decision taken by
the poll body under Article 324 of
its powers.
The AG said that the ground realities
are such that if all are excluded from
contesting polls, electoral funding will
be an issue and then the polls would
be fought in Courts, and not in the
election arena.
The tricky issue will continue to be
debated in the apex court.
SC move on crime and politics
Conversion through the Vishwa
Hindu Parishad’s (VHP) “shuddhi
ceremony” is good by law, the Madras
High Court decreed recently. Justice R
Suresh Kumar was adjudicating on the
eligibility of the appointment of a jun-
ior graduate teacher under the Sche-
duled Caste (SC) category.
The candidate, a woman called
Daisy Flora when she was a Christian,
converted to Hinduism and was na-
med A Megalai. The authorities re-
fused her appointment on the ground
that she was a convert. She moved
court, after the state’s counsel argued
that mere conversion could not get a
person the SC status, unless he/she
was accepted by the community.
The judge said: “The Vishwa Hindu
Parishad, one of the reputed and inter-
nationally acclaimed organisations for
Hindu religion, which is constantly and
steadfastly propagating the greatness
and richness of Hinduism and Hindu
rites and customs in this country, had
performed the necessary pooja called
‘Shuddhi Satangu’ on November 1,
1998. The name of the petitioner,
which was originally Daisy Flora, has
been changed into A Megalai. On
completion of the pooja by pandits of
Vishwa Hindu Parishad, it has been
declared that she had con-
verted from Christianity to
Hinduism.”
‘Shuddhi’ ceremony good enough for court
KK Sharma joins
London chambers
Senior Advocate KK Sharma joined The 36
Group, a multi-specialist set of barristers’
Chambers (offices) in London, thereby add-
ing to the ranks of other Indian lawyers who
have been inducted into the prestigious insti-
tution. Sharma has joined as a Door Tenant
(a barrister who has
been granted permission
to join a set of chambers
and work with them from
premises outside the
chambers themselves) to
expand Group’s Asia
international litigation and
arbitration practice. He is
a senior advocate specialising in high-value
commercial dispute resolution across various
sectors such as real estate, finance, intellec-
tual property and general civil litigation. With
a practice of over 37 years, he brings with
him a vast wealth of litigation knowledge to
this London-based worldwide chamber.

Lead/ Kerala Floods/Environment
Thiscouldwellbetheplaintivesentimentof
thedespairingpeopleofGod’sOwnCountry
astheybattletheaftermathoftheworst
floodsinacentury.Thewarningsignswereall
there.Weretheyignored?
By Papia Samajdar
FURY OF THE RAINS
(Top) An aerial view of the flood-affected
regions in Chengannur, Kerala; (left) a woman
cries as she holds her son after evacuation
from a flooded area in Aluva
Cry, the
Beloved
HE death, devastation and
distress in God’s Own
Country have gripped the
nation like no other calamity.
Kerala, the once bountiful
and beautiful land of 44
rivers, has been devastated by the fury
of the rains and the onslaught of surging
waters from as many as 35 of its 61
dams. The combined effect of the tor-
T
Country!

rential rainfall and water released from
its dams led to one of the worst floods
India has seen.
By August 21, the death toll in these
floods had risen to 370. A total of 3,274
relief camps had been set up to accom-
modate and feed some 10,28,000 dis-
placed people. The floods were declared
a “calamity of severe nature”. A prelimi-
nary estimate by local authorities
shows approximately 82,000 km of local
roads washed out, 134 bridges destroyed
and 45,000 hectares of farmland
submerged. An ASSOCHAM report
pegs the economic damage as high as
`20,000 crore.
But this ecological disaster was just
waiting to happen, if one goes by reports
of various committees. More than 50
percent of the total land area of Kerala
lies in the Western Ghats. These Ghats
run for about 1,500 km from the mouth
of the Tapti river near the border of
Gujarat and Maharashtra to the south-
ern tip of Tamil Nadu. This covers six re-
gions—Tamil Nadu, Karnataka, Kerala,
Goa, Maharashtra and the Dang forests
in Gujarat. The region is one of the three
biodiversity hotspots in India, the other
two being the Indo-Myanmar border
region and the Eastern Himalayas.
Roughly 30 percent of the Western
Ghats is under forests (before 2010) and
this has a stabilising effect on the cli-
mate and rainfall on the western and
eastern sides. It has also played a vital
role in carbon sequestration and reduc-
tion of global warming. However, the
Ghats are under serious threat.
In the last 80 years, there has been a
population increase of 1,500 percent in
the region of Idukki, Wayanad and the
eastern parts of the northern districts of
Kerala. This led to large-scale felling of
trees to make space for plantations, tou-
rism resorts and other related indus-
tries. Kerala, in fact, is home to 2.8 per-
cent of India’s population and contri-
butes almost 4 percent to India’s GDP.
The main drivers of its economy are
construction (13.4 percent) and real
estate (15.3 percent). Agricultural activi-
ties contribute 12.7 percent.
S
eeing the delicate ecosystem in the
Western Ghats, Jairam Ramesh,
the then Union environment min-
ister, set up the Western Ghats Ecology
Expert Panel under Professor Madhav
Gadgil in 2010. This was done after peo-
ple associated with the Save the Western
Ghats project pointed out threats to the
region due to excessive mining, con-
struction, hydro-power and real estate.
The panel was tasked with assessment
of the region in terms of ecology and
biodiversity and to make recommenda-
tions to conserve and rejuvenate the
region. It was asked to study the impact
of population pressures, development
activities and climate change on the
Ghats. It submitted its report in 2011
to the ministry and the findings were
indeed grave.
The Gadgil panel found that:
Environmental Impact Assessment of
various developmental projects in the
region was weak, especially for biodiver-
sity and socio-economic issues.
Some of the impact of existing
industries constituted depletion and
pollution of groundwater, siltation of
water bodies, increased frequency of
floods, loss of fertile agricultural land
and deforestation.
UNI

Power transmission lines, transporta-
tion systems and infrastructure had a
significant impact on the region’s
environment.
The panel divided 142 talukas in the
Western Ghats into three categories—
Ecologically Sensitive Zones (ESZ) I, II
and III—and recommended that the
entire region covering 1.37 lakh hectares
be declared an Ecologically Sensitive
Area (ESA) and accorded different
degrees of protection.
ESZ-I restricted almost all develop-
mental activities, such as mining, ther-
mal power plants, and so on. The
Report recommended that “no new
dams based on large-scale storage be
permitted in this sensitive zone. Since
both the Athirappilly of Kerala and
Gundia of Karnataka hydel project sites
fall in ESZ-I, these projects should not
be accorded environmental clearance”.
The Gadgil Committee report speci-
fied that the existing system of gover-
nance of the environment should be
changed. It asked for bottom-to-top
approach (right from gram sabhas)
rather than a top-to-bottom one. It also
asked for decentralisation and more
powers to local authorities. It recom-
mended constitution of a Western
Ghats Ecology Authority as a statutory
authority under the Ministry of Envi-
ronment and Forests, with powers un-
der Section 3 of the Environment
(Protection) Act, 1986.
T
he UPA government, however,
decided against making the re-
port public. “A misinformation
campaign was started by vested inter-
ests,” Professor Gadgil had reportedly
said then. In 2012, under pressure
from industries and the mining lobby,
the government decided to set up
another committee to look into the rec-
ommendation of the Gadgil
Committee. This was headed by Dr K
Kasturirangan and it submitted its
report in April 2013.
The Kasturirangan report reduced
the ecologically sensitive area to 60,000
hectares, a stupendous 43 percent
decrease from that recommended by the
Gadgil report. “The Committee excluded
the area already under private control
from the protective regime to avoid
unnecessary conflict,” said Sunita
Narain, head of the Centre for Science
and Environment and a member of the
Kasturirangan Committee.
This Committee recommended strin-
gent checks on hydro-power projects,
including cumulative impact assessment
of such projects and ensuring minimum
water flow in the rivers in the lean sea-
son. It, however, recommended a ban on
construction projects of over 20,000 sq
m, but excluded those already undergo-
ing the process of approval. The
Committee also recommended that the
centre provide incentives to states to
promote sustainable development and
maintain forest cover and encourage the
setting up of a high-level committee to
monitor the implementation of these
recommendations.
In 2014, the then ruling UPA govern-
ment issued a draft notification asking
six states to demarcate the ESA, clarify-
ing it was a voluntary and non-binding
exercise. The Kasturirangan Committee
had recommended 13,108 sq km in 123
villages in Idukki district and 12 out of
ALLAYING CONCERNS
Kerala CM Pinarayi Vijayan (with folded
hands) and Leader of the Opposition Ramesh
Chennithala (gesticulating) at a relief camp
“People’spressurecanensurethatthe
governmenttakesmeasuresfora
favourableenvironment.Scienceand
datashouldbeusedproperly.”
—ProfessorMadhavGadgiloftheWestern
GhatsEcologyExpertPanel,2010
TheKeralafloodsshouldbean
eye-openerforgovernmentscateringto
thedemandsofindustries.Riskmitiga-
tionanddisasterpreparednessneedto
beinsyncwithextremeweatherevents.
Lead/ Kerala Floods/Environment
UNI

Goa and coastal Karnataka usually
account for 40-46 percent of the coun-
try’s rainfall during the monsoon.
Kerala received 1,606 mm of rainfall by
mid-August 2017. This year, it received
2,191.11 mm rainfall, half of which was
concentrated between August 8 and
August 16. This accounts for 250 per-
cent more rain in the stipulated period,
causing water levels in the 61 dams to
rise dangerously.
In addition to the Gadgil and Kas-
turirangan reports, there have been
other warnings of impending disaster in
Kerala. According to the Rashtriya Barh
Ayog, an estimated 8.70 lakh hectares
of the total area of 38.90 lakh hectares
in Kerala is prone to floods. And in May
2006, the Central Water Commission
(CWC) had prepared Guidelines for
Development and Implementation of
Emergency Action Plans for Dams and
circulated it to state governments for
action. In 2011, the National Committee
on Dam Safety of the central govern-
ment notified several state governments
to prepare emergency action plans for
each of their large dams.
Even central agencies have been
guilty of not doing enough and that
includes the CWC. It is responsible for
flood forecasting and issuing alerts
14 districts in Kerala be protected as
the ESA. In 2015, the Kerala govern-
ment decided to demarcate the ESA in
the state. It told the central government
that only forest land protected by the
forest department would be demarcated
as ESA.
According to a former Kerala
Biodiversity Board chairperson and a
member of the Gadgil Committee, VS
Vijayan: “The state was trying to regu-
larise the illegal forest encroachment.”
Environmental activists point out
that there were large-scale encroach-
ments by influential settlers who enjoy
the backing of political parties and
the Church.
As the western side of the Western
Ghats is granite-rich, rampant illegal
quarrying has been taking place here.
Though there is no government data
on the total number of quarries,
researchers put the total number at
5,924 spread over 7,157.6 hectares.
“Most of the quarries are illegal,”
Gadgil had said.
According to a study by the Indian
Institute of Science, Kerala lost
9,06,440 hectares of forest land bet-
ween 1973 and 2016, nearly half of its
forest land. This increased incidents of
landslides, especially during the mon-
soon. To add to this, the natural
drainage system of the state was re-
duced by unmindful construction. The
wetlands of Kerala, which acted as nat-
ural aquifers, were shrinking, increasing
the impact of floods.
T
he Kerala floods should be an
eye-opener for the central and
state governments which often
cater to the demands of industries.
Disaster-preparedness, risk mitigation
and emergency planning need to be in
sync with the rising number of extreme
weather occurrences. Appropriate use
of technology and data interpretation
should be used to take preventive deci-
sions to avoid large-scale destruction
and loss. People should be made aware
of the risks and dangers of unmindful
development at the cost of environmen-
tal destruction. We have seen this in
Chennai, Mumbai and in Srinagar.
“People’s pressure can ensure that the
government takes measures leading to
favourable environment. Along with
people’s pressure, science and data
should be used honestly and properly,”
remarked Gadgil.
Such rampant destruction, along
with extreme weather phenomenon, is a
recipe for disaster. Kerala, the Konkan,
“Thecommitteeexcludedtheareaunder
privatecontrolfromtheprotectiveregime
toavoidunnecessaryconflict.”
—SunitaNarain,headoftheCentrefor
ScienceandEnvironmentandamemberof
theKasturiranganCommittee
“TheKeralagovernmentwastrying
toregularisetheillegalforest
encroachmentinthestate.”
—VSVijayan,formerKeralaBiodiversity
Boardchairpersonandamemberof
theGadgilCommittee
“Thefirstfunctionofdamsisstorage.
Therightthingtodowithanystorage
systemistohaveaproperinputand
output,predictionandmanagement.”
—DrAmitaSingh,chairperson,Special
CentreforDisasterManagement,JNU

Judiciary’shelpinghand
and warnings based on the data collect-
ed by them. The first forecasting station
was established in 1958 at the old Delhi
bridge to monitor the Yamuna. The
CWC, however, has not established a
single flood forecasting station in 15
states and Union Territories, including
Kerala. Of the 184 flood forecasting sta-
tions, Kerala has none in spite of it
being ranked the seventh most flood-
prone state in the country.
E
ven the Indian Meteorological
Department had predicted the
likelihood of extreme rain in Ke-
rala. And sure enough, Kerala received
30 percent more rain in August, while
the district of Idukki received 70 per-
cent excess rain, causing its dam sluice
gates to be opened after 26 years.
Then there is the issue of dam man-
agement for which Kerala has been crit-
icised. Dr Amita Singh, chairperson,
Special Centre for Disaster Manage-
ment, JNU, reportedly said: “This flood
was not caused merely by excess rain.
The first function of dams is storage.
The right thing to do with any storage
system is to have a proper input and
output, prediction and management.”
Himanshu Thakkar of the South Asia
Network on Dams, Rivers and People
told India Legal: “Dams can help con-
trol floods. However, if not managed
properly, they can lead to devastation.”
(See accompanying story.)
However, 57 percent of the dams in
Kerala are operated by the Kerala State
Electricity Board and the rest by the
irrigation department. For both the
departments, the purpose of dams is
electricity and irrigation. Flood control
is not the main purpose.
The lack of planning can also be seen
in the Five Year Plans. During the
Eleventh one over 2007-12, Kerala had
proposed four Flood Management Prog-
rammes at an estimated cost of `279.74
crore to the centre. The centre disbursed
two instalments totalling `118.90 crore
over the Eleventh and Twelfth Plans.
However, CAG auditors noted that they
did not find any specific proposal for
flood management in these programmes.
In short, this calamity was natural
and man-made and vital lessons should
be learnt from it for future generations.
—The writer is a communications
consultant
T
he chief justice of India, judges,
advocates and the legal fraternity
came together to contribute to-
wards relief measures for Kerala.
In two donation drives organised by
the Supreme Court Bar Association and
the Delhi High Court Bar Association on
August 18 and August 22, respectively,
17 truckloads of material comprising toi-
letries, soap, medicine, detergents,
feeding bottles, clothes, chlorine, mat-
tresses, mosquito nets, shoes, gloves
and toys were collected.
Justice Kurian Joseph (above)
played an extraordinary role in making it
a big success. On both days, he stayed
at the venue until past midnight, per-
sonally collecting and sorting the
donated items and motivating the
donors. The Kerala government had
placed a request for 5,000 gumboots. A
female advocate single-handedly ful-
filled that request.
The effort also saw tremendous par-
ticipation by the legal community.
Twenty-three tonnes of relief material
were loaded onto the Mangala Express,
which reached Kerala on August 25.
The first day’s contributions were flown
out via a special aircraft by the Navy.
The Supreme Court Bar Association
has already transferred `30 lakh to the
Kerala government. Attorney General
of India KK Venugopal has contributed
`1 crore, while his predecessor, Mukul
Rohatgi, donated `50 lakh. A few
senior advocates donated up to `10
lakh for the cause. The total amount
collected at the time of going
to press is estimated to have crossed
`25 crore.
NATURE HITS BACK
The ecological disaster was imminent due to
rampant deforestation in the Western Ghats
Lead/ Kerala Floods/ Environment
tourism-of-india.com

Fight
Over
Three
FeetInthewakeofthedevastatingdeluge,Keralaand
TamilNaduonceagaintaketheirfightoverwaterlevels
inthedamtotheSupremeCourt
By Stephen David in Bengaluru
S a unit of measure, three
feet is the height of a nor-
mal cricket bat. But that’s
exactly the height over
which flood-devastated
Kerala and neighbouring
Tamil Nadu are fighting each other—the
bone of contention being what consti-
tutes dam safety levels at the Mulla-
periyar dam. Built in the upper reaches
of Western Ghats in Kerala, it is operat-
ed by Tamil Nadu under a British-era
lease. Kerala says 139 feet is one safety
level. For Tamil Nadu, it is 142 feet.
For Kerala, three feet is not just a
unit of measurement but the difference
between life and death. Three feet could
mean safety to three million people liv-
ing downstream of the dam on the Peri-
yar basin. For Tamil Nadu, increasing
the water level by three feet to 142 feet
A
means irrigating more land in the arid
parts of the state.
With no stopping the flood of char-
ges and counter-charges, the Supreme
Court, which has been hearing the dis-
pute, has now asked Tamil Nadu to
reduce the water level to 139 feet till
August 31, while posting the matter for
further hearing to September 6 and
asking other southern states including
Puducherry and Karnataka to also file
their responses.
On August 23, in a 10-page affidavit
before the apex court, Kerala blamed
the sudden release of water from the
Mullaperiyar dam for the deadly
deluge in God’s Own Country that
killed over 300 and displaced nearly
nine lakh people.
However, Tamil Nadu, seeking time
to file its counter, denies that charge.
“We are only concerned with the safety
and lives of people,” Chief Justice Dipak
Misra told the Tamil Nadu legal team
even as the top court decided to take up
the case again on September 6.
With the rains grinding to a halt and
post-flood relief and rehabilitation
measures taking centristage, Kerala is
hoping that the apex court will come up
with a new formula to ensure that there
are proper mechanisms and regulatory
bodies to cap the water level at the
Mullaperiyar dam at lower levels—any-
DAM OF CONTENTION
The 100-year-old Mullaperiyar dam (above),
located near the Tamil Nadu-Kerala border
wordpress.com
Lead/ Kerala Floods / Mullaperiyar Dam

inter-state water disputes, had
said that every dam has a shelf
life: the dam in question was
built in 1895 by a British army
engineer and his team, braving
nature’s fury.
Most dams, said Iyer, are
meant to last a century and
even with some engineering
structural strengthening, it can-
not be there forever. That’s one
line of thought that Kerala
hopes to leverage to hammer
home the point of dam water
level safety.
Way back in 1979, media
reports on Mullaperiyar dam
safety caught the attention of
the centre. Later that year, the
Central Water Commission held a meet-
ing with top representatives from Kerala
and Tamil Nadu and initiated some
emergency measures for strengthening
the dam. After additional engineering
work on the dam, it was decided to raise
the water level to 145 feet.
Kerala, hoping to get some relief, lost
it again. The matter became sub-judice
with several petitions until, on the apex
court directive, a June 2000 expert
committee was asked to study the safety
of the dam. This committee’s March
2001 report added to Kerala’s woes:
with some dam strengthening, it said,
142 feet is a safe water level. It threw in
a kicker too: Tamil Nadu could raise it
to 152 feet—another 10 feet—after addi-
tional strengthening measures.
In its February 2006 orders, the
Supreme Court permitted Tamil Nadu
to raise the dam water level to 142 feet
and carry out the remaining strengthen-
ing measures. The following month,
Kerala hit back by passing the Kerala
Irrigation and Water Conservation
(Amendment) Act, 2006 (on March 18,
2006) which prohibited the raising of
the water level beyond 136 feet in the
where between 136 feet and 139 feet—
preferably constantly monitored by a
supervisory committee comprising the
Central Water Commission chief and
the secretaries of Tamil Nadu and Ke-
rala. Even a management committee
from the centre to manage the daily
operations at the dam will be helpful.
Kerala let go of an opportunity to
stake claim to at least partial ownership
to operate the 17-storey-high dam when
the agreement was revisited in 1970
long before it took the 2006 legislation
enactment route to force lowering the
dam water levels to what it termed safe
levels: 136 feet from the 152 full reser-
voir level that the dam is designed for.
Tamil Nadu has kept the water levels at
142 feet for a long time after interven-
tion from the judiciary.
T
he apex court will also ask for a
detailed flood disaster manage-
ment plan apart from submis-
sions on future flood threats from the
dam. The new info before it will help
state governments and key central agen-
cies to consolidate a pan-India foolproof
disaster management plan to deal with
calamities—natural or what prominent
ecologists like Madhav Gadgil said
about Kerala, “man-made disaster”.
Professor Gadgil’s 522-page report to
the centre in 2012 had warned of the
catastrophic threats from deforestation
and illegal plundering of the Western
Ghats, one of the world’s top biodiversi-
ty hotspots, to other parts of Kerala
abutting the Ghats.
Gadgil had headed a 14-member
panel which included five from top cen-
tral government bodies including the
national biodiversity board which,
among other recommendations, called
for establishing a separate policing
force, Western Ghats Ecology Authority,
which many say could have helped
stave off the crisis that Kerala is crippled
with today.
Many years ago eminent water
expert Ramaswamy Iyer, a specialist in
SLIPPERY TIES
Kerala Chief Minister Pinarayi
Vijayan (left) with Tamil Nadu CM
Edappadi K Palaniswami
Ina10-pageaffidavitbeforethe
apexcourt,Keralablamedthe
suddenreleaseofwaterfromthe
Mullaperiyardamforthedeadly
delugeinGod’sOwnCountry.

Mullaperiyar Dam and placed it in the
Schedule of “Endangered Dams”.
Tamil Nadu filed a suit in the apex
court on March 31, 2006, calling Kera-
la’s Act unconstitutional. The centre
played referee by convening an inter-
state meeting of the Kerala and Tamil
Nadu chief ministers on November 29,
2006 but it was a dead ball. No consen-
sus. Even with the then prime minister
intervening in December 2007, it ended
in a deadlock.
In April 2010, an empowered com-
mittee was set up headed by Justice Dr
AS Anand. After holding more than 20
meetings including site visits, the Anand
Committee in its April 2012 report to
the apex court concluded that the “dam
is hydrologically safe and that the
proposal of the State of Kerala to build a
new dam requires reconsideration by
State of Kerala”.
The Anand-led empowered commi-
ttee also suggested two options: Kerala
could construct a new dam and the
existing dam may not be dismantled,
demolished or decommissioned till the
new dam construction is completed and
it becomes operational. The second
alternative is to repair, strengthen and
restore the existing dam.
Following this, a constitution bench
of five judges of the Supreme Court
heard the Mullaperiyar Dam Case in
July-August 2013, and in its May 5,
2014 judgment declared the Kerala
Irrigation and Water Conservation
(Amendment) Act, 2006 unconstitu-
tional and directed the Union govern-
ment to set up a three-member Super-
visory Committee on the safety of the
Mullaperiyar Dam on restoration of the
FRL (full reservoir level) to 142 feet.
T
he following month, a three-
member Supervisory Committee
on Mullaperiyar Dam was set up
with its office at Kumily, Kerala. Central
Water Commission Chief Engineer
(Dam Safety Organisation) LAV Nathan
(the two other members included Tamil
Nadu PWD principal secretary and
Kerala Water Resources Department
additional chief secretary) headed
this team.
It was tasked with inspecting the
dam periodically and recommending all
the necessary measures to keep the
Mullaperiyar dam functioning at the
highest levels of safety.
For the people of Kerala, the century-
old dam is an emotional issue: it is
owned and operated by Tamil Nadu
although it is located in Kerala.
On August 16, the bench of the
Supreme Court—Chief Justice Dipak
Misra and Justice DY Chandrachud—
asked the National Crisis Management
Committee (NCMC), Kerala and Tamil
Nadu government teams to lower the
water level at the Mullaperiyar dam by
three feet: from 142 feet (maximum
capacity) to 139 feet.
The Supreme Court has asked for a
detailed disaster management plan to
be filed by August 24. Additional Soli-
citor General PS Narasimha and Cabi-
net Secretary Pradeep Kumar Sinha—
on behalf of the centre—are monitoring
the developments closely; India’s top
bureaucrat Sinha, who has video con-
ferenced with the Kerala and Tamil
Nadu chief secretaries, will also, with
inputs from Delhi-based central agen-
cies, draw up a state-of-the art structur-
al risk mitigation manual.
Whether to lower the dam level or
raise it will be a part of the findings for
the court that is expected to address
all the concerns raised in the August
16 petition, including the charge “that
no concrete steps have been taken by
any of the States or Central government
till date to implement the (court) direc-
tions in true letter and spirit”.
Another key charge for the current
state of disaster is the “unpreparedness
of the state and the central government
during this natural calamity as there is
no plan which is announced or commu-
nicated to the public at large till date”.
Has Tamil Nadu risked the lives of
thousands downstream of the Mulla-
periyar dam? Could the unprecedented
natural calamity in Kerala have been
tackled more effectively? Are politicos
indifferent to the untold suffering of the
people? What kind of warning systems
will be effective? What is the ideal dis-
aster management plan to avoid such
catastrophic situations again?
Maybe this time the Supreme Court
will put to rest all these concerns.
Withthefloodsaccountingforover300deaths,theSCbenchofCJIDipakMisra(left)
andJusticeDYChandrachud(right)askedTamilNadutolowerthewaterlevel.“Weare
onlyconcernedwiththesafetyandlivesofthepeople,”theCJIsaid.
Lead/ Kerala Floods / Mullaperiyar Dam

Supreme Court/ Conduct of Elections
N an embarrassment for the
Election Commission of India, the
Supreme Court on August 21
quashed a notification issued by
the poll panel in January 2014—
later modified in November
2015—which allowed members of leg-
islative assemblies to cast a negative
vote in elections for the Rajya Sabha.
The apex court bench of Chief Jus-
tice Dipak Misra and Justices AM
Khanwilkar and DY Chandrachud,
while delivering its verdict in Shailesh
Manubhai Parmar vs Election
Commission, held that allowing legisla-
tors to vote “None of the Above”
(NOTA) in the Rajya Sabha polls
“defeats the fairness ingrained in an
indirect election”.
The judgment, authored by Chief
Justice Misra, however, asserted that
“the option of NOTA may serve as an
elixir in direct elections”—polls in
which the common citizen votes to elect
a councillor, MLA or MP. The poll pro-
cess for electing Rajya Sabha members,
the verdict underscored, was one in
which negative voting “would not only
undermine the purity of democracy
but also serve the Satan of defection
and corruption”.
The case was filed by Gujarat Cong-
ress leader Shailesh Parmar who had, in
the run-up to last year’s hotly contested
Rajya Sabha elections in the state, chal-
lenged the EC’s decision to introduce
negative voting in the polls for the
Council of States.
NOTA was introduced in the Lok
Sabha polls following a 2013 decision of
the Supreme Court in People’s Union for
Civil Liberties (PUCL) vs Union of
India. The EC had, the following year,
extended this option to the Rajya Sabha.
Ever since, elections to as many as 222
Rajya Sabha seats were held with the
inclusion of NOTA in the ballots.
Senior advocate Abhishek Manu
Singhvi, who appeared for Parmar,
argued that allowing NOTA in Rajya
Sabha polls “creates an anomalous situ-
ation and brings in horse-trading, cor-
ruption and use of extra-constitutional
methods which were sought to be avoid-
ed by the introduction of the Tenth
Schedule in the Constitution through
the 52nd Amendment in 1985”.
Chief Justice Misra said in his ver-
dict: “The introduction of NOTA… will
be an anathema to the fundamental
criterion of democracy.” He dubbed
“absolutely erroneous” the interpreta-
tion of the PUCL verdict by the EC
while allowing negative voting for Rajya
Sabha polls.
“The introduction of NOTA in such
an election will not only run counter to
the discipline that is expected from an
elector… but also be counterproductive
to the basic grammar of the law of dis-
qualification of a member on the ground
of defection,” the verdict said.
It further said that “NOTA will
destroy the concept of value of a vote
and encourage defection”. It added:
“The introduction of NOTA in indirect
elections may on a first glance tempt
the intellect but on a keen scrutiny, it
falls to the ground, for it completely
ignores the role of an elector in such an
election and fully destroys the demo-
cratic value.”
No to NOTA
I
TheCourthasruledthatthoughthisoptionmaybe“an
elixir”indirectpolls,itcouldunderminethepurityof
democracyifallowedintheRajyaSabhapolls
By India Legal Bureau
NOTAwasintroducedintheLokSabha
pollsfollowinga2013decisionofthe
SupremeCourtinPUCLvsUnionof
India.TheEChad,thefollowingyear,
extendedthisoptiontotheRajyaSabha.
indialegallive.com

Supreme Court/ Extramarital Relationships
24September 3, 2018
ECTION 113A of the In-
dian Evidence Act pre-
sumes that if a married
woman commits suicide
within seven years of mar-
riage, and her husband or a
relative of his subjected her to cruelty,
the crime would be seen as abetted by
him or the relative. The word “cruelty”
in this provision has the same meaning
as under Section 498A of the Indian
Penal Code, which deals with the off-
ence of subjecting of a married woman
to cruelty by her husband or his relative.
Section 498A defines “cruelty” as any
wilful conduct which is of such a nature
as is likely to drive the woman to com-
mit suicide or to cause her grave injury
or danger to life, limb or health (whe-
ther mental or physical). Under Section
306 IPC, if any person commits suicide,
whoever abets the commission of such
suicide, shall be punished with impris-
onment of either description for a term
which may extend to 10 years, and shall
also be liable to fine.
Section 113A was inserted through
an amendment to meet the social chal-
lenge of saving a married woman from
being ill-treated or forced to commit
suicide by the husband or her in-laws,
demanding dowry. The prosecution has
to establish beyond reasonable doubt
that the deceased committed suicide on
being abetted by the person charged
under Section 306, IPC.
On August 9, a bench of Justices R
Banumathi and Vineet Saran in
Siddaling v The State, through Kalagi
Police Station, Gulbarga district,
Karnataka, held that the appellant’s illi-
cit relations with another woman would
have definitely created a psychological
imbalance in the deceased (wife) which
led her to take the extreme step of com-
mitting suicide. “It cannot be said that
the appellant’s act of having illicit rela-
tionship with another woman would not
have affected to negate the ingredients
of Sections 306 IPC,” the bench con-
cluded in its judgment.
In this case, the husband was con-
victed under Section 498A IPC and 306,
IPC, and sentenced to undergo rigorous
imprisonment for two years and five
years, respectively, by the trial court.
The Karnataka High Court set aside the
separate sentence imposed under Sec-
tion 498A, and maintained the sentence
imposed under Section 306.
The Supreme Court rejected the plea
for leniency in the quantum of sentence.
It kept in view the fact that the wife
committed suicide within four months
of her marriage, and within three mon-
ths of the convening of the panchayat
which enabled her to return to her hus-
band after he promised not to continue
his illicit relationship.
The appellant’s counsel, Girish Anan-
thamurthy submitted to the apex court
that there has to be a mens rea to com-
mit the offence punishable under Sec-
tion 306, IPC. Also, there ought to be an
active or direct act leading to the dece-
ased committing suicide, which is lack-
ing in the present case. He cited the
A Complicated Affair!
Inadebatablejudgment,theapexcourtconvictsamanonthegroundsthathisillicitrelations
withanotherwomanabettedhiswife’ssuicide
By Venkatasubramanian
S
TheSCinitsjudgmentreliedona2004
verdictinRandhirSinghvStateofPunjab
toholdthatabetmentinvolvesamental
processofinstigatingapersonoraiding
thatpersonincommittingtheact.
Anthony Lawrence

Court’s judgment in Gurcharan Singh v
State of Punjab (2016) which held that:
“To constitute abetment, the inten-
tion and involvement of the accused to
aid or instigate the commission of sui-
cide is imperative. Any severance or ab-
sence of any of these constituents would
militate against this indictment. Re-
moteness of the culpable acts or omis-
sions rooted in the intention of the
accused to actualise the suicide would
fall short as well of the offence of abet-
ment essential to attract the punitive
mandate of Section 306 IPC. Contiguity,
continuity, culpability, and complicity of
the indictable acts or omissions are the
concomitant indices of abetment. Sec-
tion 306 IPC thus criminalises the sus-
tained incitement for suicide.”
I
n this case, the SC acquitted the
accused of the offence of abetment
of suicide of his wife and two chil-
dren on the grounds that the suicide
note left behind by the deceased con-
tained omnibus of allegations of denial
of share in the property by the husband
and his relatives. However, the top court
in its August 9 judgment relied on a
2004 judgment in Randhir Singh v
State of Punjab to hold that abetment
involves a mental process of instigating
a person or in any manner aiding that
person in committing the act.
Courts should carefully assess the
facts of each case before deciding whe-
ther the cruelty meted out to the victim
induced her to commit suicide, the ben-
ch observed. The top court concluded
that the appellant continued his rela-
tions with another woman.
The High Court judgment reveals
that in addition to an illicit relationship
with another woman, the appellant
harassed the victim on the grounds that
she was not fair and not adept in cook-
ing. It observed: “If the husband lives
with another woman that definitely
cause (sic) mental agony to the wife and
it may lead to suicide also.” By using the
word “may” here, the Court indicates
that the husband’s illicit relations with
another woman might have abetted her
suicide, and therefore, it could only be a
probable reason. However, rather than
giving the benefit of the doubt to the
husband, the High Court found him
guilty in view of Section 113A, which
mandates presumption of guilt. The
Supreme Court did not find any reason
to depart from the High Court’s finding.
Both the High Court and the Sup-
reme Court did not find the husband
guilty of the offence under the Dowry
Prohibition Act, although the trial court
convicted and sentenced him for that
offence. But the factual matrix of
Randhir Singh v State of Punjab, relied
on by the Supreme Court in its August 9
judgment, shows that it was a dowry
death and conspiracy. The Supreme
Court held in Randhir Singh v State of
Punjab that: “More active role which
can be described as instigating or abet-
ting the doing of a thing is required
before a person can be said to be abet-
ting the commission of offence under
Section 306 IPC.” It also held in
Randhir Singh v State of Punjab as fol-
lows: “If it transpires to the Court that a
victim committing suicide was hyper-
sensitive to ordinary petulance, discord
and differences in domestic life, quite
common to the society to which the vic-
tim belonged and such petulance, dis-
cord and differences were not expected
to induce a similarly circumstanced
individual in a given society to commit
suicide, the conscience of the court
should not be satisfied for basing a find-
ing that the accused charged for abet-
ting the offence of suicide should be
found guilty.”
The August 9 judgment of Justice
Banumathi, however, does not cite these
sentences from the 2004 judgment,
which confirmed the conviction of the
accused persons, but reduced their sen-
tences. It comes close on the heels of an
order, pronounced by her (along with
Justice Saran) upholding conviction of a
woman accused of abetment of suicide
of a young girl, by calling her a “prosti-
tute”. The order in the case, Rani
@Sahayarani v The State of Tamil
Nadu, pronounced on August 8, con-
firms the High Court’s finding of convic-
tion and the award of a sentence of one
year to the accused for the offence. The
dying declaration of the deceased clearly
stated the abusive language used by the
appellant against her, the order finds.
“The deceased was aged 26 years and
being a young unmarried girl, could
have been upset over such verbal abuse
heaped on her which led her to take a
decision of committing suicide by set-
ting herself ablaze. Based on the said
dying declaration, the courts below
rightly convicted the appellant…,” the
bench concluded.
The August 8 order, like the August
9 judgment, is silent on whether the
abuse could have led a similarly circum-
stanced individual to commit suicide.
The latter is problematic because the
constitution bench has reserved its judg-
ment on decriminalisation of adultery
and is expected to declare Section 497 of
the IPC unconstitutional.
TheverdictbytheSCbenchofJustices
RBanumathi(above)andVineetSaranis
problematicastheCourtmaydeclare
Section497unconstitutional.

Supreme Court/ Armed Forces Special Powers Act
N an unprecedented move, 356
Army officers recently filed a writ
petition in the Supreme Court ask-
ing for all court-monitored investi-
gations into fake encounters by the
Armed Forces to be stayed. The first
prayer of the petitioners is to protect the
“bona fide” action of soldiers under the
Armed Forces Special Powers Act
(AFSPA), “so that no soldier is harassed
by initiation of criminal proceedings”.
In order to understand this plea, one
has to first understand AFSPA and how
it is used. AFSPA gives the Indian Army
the power to maintain public order in
“disturbed areas”. It has the authority to
prohibit a gathering of five or more per-
sons in an area and can use force or even
open fire after giving due warning if it
feels a person or group is in contraven-
tion of the law. If reasonable suspicion
exists, the Army can also arrest a person,
search premises without a warrant and
ban the possession of firearms.
A “disturbed area” is one which is
declared by notification under Section 3
of AFSPA. An area can be disturbed due
Apetitionby356soldiersaskingforallcourt-monitoredprobes
intofakeencountersbytheArmedForcestobestayedwillturn
theConstitutiononitshead,jeopardisingdemocracy
By MG Devasahayam
A Suicidal Plea
IPOWER TO THE PEOPLE
Activists stage a dharna against
AFSPA in Imphal. There have
allegedly been 1,528 extra-judicial
killings by security forces in
Manipur between 2000 and 2012
UNI

to differences or disputes between mem-
bers of different religious, racial, lang-
uage or regional groups, castes or com-
munities. The central government or a
state/Union Territory can declare the
whole or part of its territory disturbed
through a notification in the Official
Gazette. It can be invoked in places
where “the use of Armed Forces in aid of
the civil power is necessary”.
AFSPA came into force in the context
of increasing violence in the North-East
decades ago, which the state govern-
ments found difficult to control. The
Armed Forces (Special Powers) Bill was
passed by both Houses of Parliament
and was approved by the president on
September 11, 1958, making it into a law.
It is in effect in the whole of Naga-
land, Assam, Manipur (excluding seven
assembly constituencies of Imphal) and
parts of Arunachal Pradesh. The centre
revoked it in Meghalaya on April 1, 2018.
Earlier, AFSPA was in effect in a 20-km
area along the Assam-Meghalaya border.
In Arunachal Pradesh, the impact of
AFSPA was reduced to eight instead of
16 police stations in Tirap, Longding and
Changlang districts bordering Assam.
Tripura withdrew AFSPA in 2015. Jam-
mu and Kashmir also has a similar Act.
A
s a law facilitating one-time/short
engagement of the Army in inter-
nal security (IS) duties to quell
insurgency, AFSPA cannot be faulted.
But the problem is the prolonged and
endless deployment of the Army in IS
duties of all kinds, which is the job of the
police and at most, paramilitary forces.
As per Army Doctrine 2004, the Indian
Army's primary role is to preserve
national interests and safeguard the sov-
ereignty, territorial integrity and unity of
India against any external threats by
deterrence or by waging war. To perform
this role, the Army keeps aloof from the
civilian crowd, concentrating on training
and battle-readiness.
Relegating the Army to its second-
ary/tertiary role by decades-long deploy-
ment in counter-insurgency and IS
duties dilutes its authority, corrupts
ranks and compromises efficiency
through lack of training. Besides, over
time, the Army is looked upon merely as
another state force with its soldiers los-
ing the respect and mystique they tradi-
tionally enjoyed. Familiarity breeds con-
tempt and military men find themselves
at the receiving end.
This is precisely what is happening in
Kashmir and several places in the north-
east. As the civilian population is directly
involved, politics and politicians come in.
Power games begin and wittingly or un-
wittingly, the Army becomes a pawn in
it. The endeavour of power-mongers has
always been to create a situation of
intense hostility, inextricably miring the
military and forcing it to resort to exces-
sive force.
While exercising draconian powers,
there is bound to be misuse. In a July
2016 verdict, the Supreme Court ripped
off the cloak of immunity and secrecy
provided by AFSPA to security forces for
deaths caused during encounters in dis-
turbed areas. In July 2017, it directed a
CBI probe into alleged extra-judicial
killings by the Army, Assam Rifles and
the police in insurgency-hit Manipur. It
had asked the CBI director to appoint a
Special Investigating Team (SIT) to
probe the alleged killings. The order
came after a PIL sought a probe into and
compensation for the alleged 1,528
extra-judicial killings by security forces
in Manipur between 2000 and 2012.
Earlier, commissions headed by for-
mer apex court judges had found serious
human rights violations by security
forces and had recommended scrapping
of AFSPA or making drastic changes in
the Act. But successive governments and
Army top brass have been defending
AFPSA with all their might. Over the
years, the effort of ruling politicians has
been to make the Army an instrument of
an increasingly autocratic State. So, the
big question arises: What is the man-
VICTIM OF THE STATE
Th Manorama Devi remembered on her 14th
death anniversary. Her 2004 murder, allegedly
by Assam Rifles personnel, sparked a furore
SuccessivegovernmentsandArmytop
brassaredefendingAFSPA.Thequestion
is:whatistheArmy’smandate—defend-
ingdemocracyoroppressingthepeopleat
thewhimofanautocraticstate?
UNI

date of the Army—defending democracy
or oppressing the people at the whim of
an autocratic State?
This issue was highlighted when
Prime Minister Indira Gandhi imposed
Emergency in June 1975, turning a
vibrant democracy into an enslaved
autocracy. Putting the entire blame on
Jayaprakash Narayan and the movement
led by him, she made specific reference
to JP calling upon the Army not to obey
any order it considered wrong. “You have
not sold your conscience and honour for
the sake of your bread,” JP had exhorted
the Army, and challenged the Home
minister to try him for treason.
I
ndia’s professional Army had
remained resolutely non-political
since Independence. During the
Emergency it kept its faith and stood in
defence of the constitutional principle of
democratic governance. Fortuitously, the
Emergency ended within a short period
and democracy was restored with Indira
Gandhi’s defeat in the 1977 elections.
Coming to the petition of the 356
Army officers, this “show of strength” was
triggered by two cases which brought the
Army to the brink of prosecution. First is
the Manipur case and the second is the
deaths of three civilians in Shopian,
Jammu and Kashmir, in January 2018.
The state government had filed an FIR
against Major Aditya Kumar of 10
Garhwal Rifles in this case. His father, Lt
Col Karamveer Singh, approached the
court, seeking to quash the FIR. In
March 2018, the chief justice of India
stayed investigation into this case.
The Manipur case has been referred
to repeatedly in the petition, with the
petitioners asserting that the historic
orders passed by the Supreme Court in
2016 and 2017 to investigate cases of
alleged fake encounters are against the
Indian Constitution. The petition is also
an ex parte application for stay, which
means the victims who are seeking jus-
tice for alleged fake encounters may not
be heard in court.
The Army officers feel that the FIRs
which are being filed against them by the
CBI and state governments are “motivat-
ed and indiscriminate”. They call the vic-
tims “anti-nationals”. In the petition,
they ask the Court to initiate an investi-
gation of the victims and petitioners
themselves. They even ask for Armed
Forces personnel who are the accused in
this case to be given “adequate compen-
sation” by the Court.
Their petition says that Army officers
need to be safeguarded from “persecu-
tion and prosecution”. They asked the
Court to ensure that no legal proceeding
should be instituted against them with-
out the sanction of the central govern-
ment. Army officers claim that the CBI
cannot investigate them. They go a step
further and say that even FIRs cannot be
filed against them.
The filing of this plea by serving Ar-
my officers assumes significance as the
CBI’s SIT has recently filed charge-sheets
in two separate encounter cases in Mani-
pur in which murder charges were slap-
ped. The Supreme Court is scheduled to
hear this petition on September 4, 2018.
In sum and substance, what the
Army officers are seeking is total immuni-
ty from any legal action and freedom to
shoot and kill at will civilians in “disturb-
ed areas” by just branding them insur-
gents, terrorists or anti-national elements!
As we have seen, the Army has a pri-
mary role—defending India by war or
deterrence, and a secondary/tertiary role
in counter-insurgency and aid to civil
power. In its primary role, where ene-
mies are involved, Armed Forces person-
nel certainly enjoy immunity without
question. They don’t even need AFSPA
for this. But giving them such immunity
in their secondary/tertiary role where
citizens are involved will be turning the
Constitution on its head, abandoning
democracy and rejecting the rule of law.
Hence, giving AFSPA a free run as
demanded by this bunch of Army offi-
cers would be suicidal for the democrat-
ic republic of India. This cannot be
countenanced!
—The writer is a former Army and IAS
officer. He fought in the 1965 war and
also participated in counter-insurgency
(Nagaland) and aided civil power (Tamil
Nadu) operations
TWIST OF FATE?
Major Nitin Leetul Gogoi, who was court-mar-
tialled recently, used a Kashmiri man as a human
shield (left) in Budgam in 2017 and was awarded
Thepetitionwastriggeredbytwocases—
theManipurencountersandthedeathsof
threeciviliansinShopianinJanuary2018.
ThestategovernmentfiledanFIRagainst
MajorAdityaKumarinthesecondcase.
Supreme Court/ Armed Forces Special Powers Act
topyaps.com

The sound and the fury of
The Donald declaiming
against the possibility of a mid-
term impeachment notwith-
standing, the list of his former
associates about to face prison
time has just grown longer.
But Paul Manafort (top left) and
Michael Cohen (above left) are not the
only ones who are possibly in for the long
haul, so to speak—the former was convict-
ed on five counts of submitting false tax
returns, one count of failing to report
bank and financial accounts and two
counts of bank fraud on August 21 in rela-
tion to his electoral propaganda work in
Ukraine and faces a maximum of 80 years
of jail time while the latter pleaded guilty
on the same day to eight felony charges
including making illegal contributions to
benefit Trump's campaign and violating
campaign finance laws to pay off women
who allegedly had affairs with him—he
will still be in jail for several years.
Michael Flynn (above) served as
Trump’s former national security adviser.
Weeks after Trump’s inauguration, he was
fired for misleading Vice-President Mike
Pence about his contacts with Russian
officials. He may spend six
months in the slammer.
George Papadopoulos
(above right) also faces six
months if convicted. He was
Trump’s foreign policy adviser
during his campaign and allegedly lied to
the FBI about his communications with
people who said they were linked to the
Russian government.
Not to forget Manafort’s right-hand
man, Rick Gates (top right). Gates, too,
contributed his efforts to the Trump cam-
paign. But like Manafort, he, too was in-
dicted for working on behalf of pro-Rus-
sian Viktor Yanukovych and laundering
$4 million. He has pleaded guilty and it is
71 months for him post-sentencing.
Less than honourable mentions?
Representative Duncan Hunter was
indicted last week for spending campaign
funds on personal vacations and dental
work. Representative Chris Collins has
also been indicted, for insider trading.
All this gives the lie to the US presi-
dent’s promise to hire the “best men” once
elected. It also threatens to trump his
winning ways in the mid-term elections
come fall.
Argentine President Mauricio
Macri has made known his plan
to report Venezuela to the Inter-
national Criminal Court at The Hague
during a recent TV interview. Macri,
along with the presidents of Colom-
bia, Chile, Paraguay and other South
American countries, is considering
proposing a petition to the ICC to
investigate the government of socialist
President Nicolás Maduro for crimes
against humanity. “For me, there is no
doubt: In Venezuela, human rights
are systematically violated by steam-
rolling the opposition and everyone,”
he said. The Organization of Amer-
ican States, meanwhile, has also
reported rights violations by Vene-
zuelan officials including enforced dis-
appearance, torture, sexual violence
and false imprisonment.
Briefs
—Compiled by Sucheta Dasgupta
Argentine prez to
report Maduro
All the President’s
“best men”
The Malaysian parliament has
repealed a controversial law con-
cerning “fake news”. It was introduced
in April under former Prime Minister
Datuk Seri Najib Razak. Creating,
publishing or disseminating any fake
news or any publication containing
fake news attracted up to six years in
prison and fines of up to $130,000.
During his campaign, incumbent PM
Mahathir Mohamad (below) had
promised to repeal the law. The Anti-
Fake News (Repeal)
Bill, 2018, is a fulfil-
ment of that prom-
ise. It will promote
human rights
and healthy
dissent,
stake-
holders
said.
Malaysia repeals
fake news law

Supreme Court / NDPS Act
cardinal principle of crimi-
nal jurisprudence is that
an accused is presumed
innocent unless proved
guilty. But under the
Narcotics, Drugs and
Psychotropic Substances Act, 1985, the
burden of proof that he is innocent is on
the accused.
A Supreme Court bench of Justices
Ranjan Gogoi, R Banumathi and Navin
Sinha on August 16 held that an accused
under the Act is entitled to acquittal if
the Informant and the Investigating
Officer (IO) are the same person.
The bench made this possible thro-
ugh its liberal interpretation of the Act’s
stringent and draconian provisions, for
abuse by the prosecution while setting
aside the conviction of an accused,
Mohan Lal.
The First Information Report in the
case was lodged on February 3, 1997 by
a sub-inspector of Balianwali Police Sta-
tion, Punjab, against Mohan Lal, alleg-
ing that four kg of opium was recovered
from his bag. Upon conclusion of inves-
tigation, Mohan Lal was chargesheeted,
put on trial and convicted.
While arguing his criminal appeal
before the Supreme Court, Mohan Lal’s
counsel, Chanchal Kumar Ganguli, sub-
mitted that with the NDPS Act being a
stringent law carrying a reverse burden
of proof, there had to be strict adher-
ence to the law and procedures. The
investigation is not only
required to be fair and
judicious, but must also
appear to have been so.
The Supreme Court
found that no reasons
had been furnished
why key Prosecution
Witnesses (PW)—
Darshan Singh, an illit-
erate person, who was
in the police vehicle used for patrol and
ASI Balwinder Singh—had not been
examined by the prosecution, despite
service of summons and issuance of
bailable warrants. In their absence, nei-
ther the consent memo nor the seal
could be stated to have been proved, the
bench held.
While Darshan Singh’s signature was
found on the consent memo, the signa-
tures of Balwinder Singh, and PW-4
were not found on it. The bench doubt-
ed the veracity of the sample seal hand-
ed over to Balwinder, asking whether it
was the same as the seal on the case
property retained in his private custody
by PW-1 which was sent for chemical
analysis later. “The mere fact that there
may have been a seal cannot lead to any
presumption in the absence of the
examination of ASI Balwinder Singh,”
the bench noted.
The bench did not find any reason
for the police officer who first appre-
hended the accused not to deposit the
seized narcotics in the malkhana (store
room to preserve case property), as
required. Nor did he enter it in the roz-
namcha (police daily diary). The bench
questioned the delay of nine days in
sending the sample for chemical analy-
sis. The sample was retained by PW-1 in
his private custody in a rented accom-
modation. PW-4 admitted that the
recovery memo was not signed by the
accused and that copies of documents
were not supplied to the accused. He
also admitted that no memo in this
regard was prepared in his presence.
More significant, the bench held that
PW-1, being the informant, could not
have been the IO himself. Asking
whether in criminal prosecution, it will
be in consonance with the principles of
justice, fair play, and fair investigation, if
the informant and the IO were the same
Theapexcourt’sacquittalofanaccusedunder
theActraisesquestionsaboutinvestigators’
compliancewithitsprovisions
By Venkatasubramanian
A
Benefit
Of Doubt
HUGE NARCO HAUL
Under the NDPS Act, the onus of proving
innocence lies on the accused

person, the bench held that in such a
case it is necessary for the accused to
demonstrate prejudice, especially under
laws such as the NDPS Act, carrying a
reverse burden of proof.
Sub-clause (1) of Section 35 of the
Act states that in any prosecution for an
offence under this Act, the court shall
presume the existence of a culpable
mental state of the accused, but it shall
be a defence for the accused to prove
that he had no such mental state with
respect to the act named as an offence in
the prosecution. This presumption is
rebuttable. Sub-clause (2) of this section
clarifies that a fact is said to be proved
only when the court believes it to exist
beyond reasonable doubt and not mere-
ly when its existence is established by a
preponderance of probability.
Section 54 of the Act requires that it
may be presumed that, unless and until
the contrary is proved, the accused has
committed an offence under this Act in
respect of any narcotic drug or psy-
chotropic substance or controlled sub-
stance or any materials which have und-
ergone any process towards the manu-
facture of the same, for the possession of
which he fails to account satisfactorily.
Section 37 of the Act makes every
offence punishable under this Act cog-
nizable. It imposes a bar on release of an
accused of specified offences on bail or
on his own bond unless the Public Pro-
secutor (PP) has been given an opportu-
nity to oppose the application for such
release, and where the PP opposes the
application, the court is satisfied that
there are reasonable grounds for believ-
ing that he is not guilty of such offence
and that he is not likely to commit any
offence while on bail.
Section 37, coupled with other strin-
gent provisions of the Act, such as the
minimum sentence of 10 years’ impris-
onment and absence of any provision for
remission, do not dispense with the
requirement of the prosecution to estab-
lish a prima facie case beyond reason-
able doubt. After this, the burden of
proof shall shift to the accused, the
bench held.
H
ad the investigator been differ-
ent from the complainant, the
issues for consideration may
have been different, the bench added.
The appellant, Mohan Lal, in his de-
fence, had resorted to the plea of false
implication by PW-1 on account of a dis-
pute over a tractor purchase.
The bench held that a fair trial of an
accused, a constitutional guarantee un-
der Article 21 of the Constitution, would
be a hollow promise if the investigation
in an NDPS case were not to be fair or
give rise to serious questions about its
fairness. “In the nature of the reverse
burden of proof, the onus will lie on the
prosecution to demonstrate on the face
of it that the investigation was fair, judi-
cious with no circumstances that may
raise doubts about its veracity. The obli-
gation of proof beyond reasonable doubt
will take within its ambit a fair investi-
gation, in absence of which there can be
no fair trial,” the bench made it clear.
The bench explained that if the
probe itself was unfair, to require the
accused to demonstrate prejudice would
be fraught with danger, vesting arbitrary
powers in the police which might lead to
false implication also. “Investigation in
such a case would then become a farce,”
the bench added.
The bench made it clear that if an
informant police official in a criminal
prosecution, especially when carrying a
reverse burden of proof, makes the alle-
gations, and is himself asked to investi-
gate, serious doubts will naturally arise
with regard to his fairness and impar-
tiality. “It is not necessary that bias must
actually be proved; it would be illogical
to presume and contrary to normal
human conduct, that he would himself
at the end of the investigation submit a
closure report to conclude false implica-
tion with all its attendant consequences
for the complainant himself. The result
of the investigation would therefore be a
foregone conclusion,” the bench noted.
“Justice must not only be done, but
must appear to be done also. Any possi-
bility of bias or a predetermined conclu-
sion has to be excluded. This require-
ment is all the more imperative in laws
carrying a reverse burden of proof,” the
bench emphasised, while directing the
appellant to be set free.
It has been found that a large num-
ber of offenders in NDPS cases are
acquitted due to non-compliance with
mandatory procedures. The number of
acquittals in such cases greatly outnum-
ber the convictions. If the investigators
comply with all the mandatory proce-
dures, there would be fewer acquittals
by the courts on technical grounds.
Thebenchstatedthatifaninformant
policeofficialinacriminalprosecution
makestheallegation,andishimself
askedtoprobe,doubtswillnaturallyarise
withregardtohisimpartiality.
prlog.org

Courts/ Ayush Gram Lease
N a major blow to the state govern-
ment, the Uttarakhand High Court
has scuttled its plans to hand over
the historic Bhowali TB Sanat-
orium land to the Kolkata-based
Emami Group on a platter. In a
recent judgment, a division bench of
Justices Rajiv Sharma and Lokpal Singh
quashed the 2010 agreement through
which the government leased out a big
chunk of land belonging to the chest
institute at the TB Sanatorium, located
near Nainital, to the Emami Group for
35 years to build Ayush Gram and a lux-
ury hotel. Coming down heavily on the
government, the court called it a classic
case of misuse of power against the pub-
lic interest in the name of promoting
medico-tourism.
The court pointed out that while the
government had undertaken to establish
Ayush Grams at eight locations in the
state it decided to hand over only the
one at TB Sanatorium in Bhowali to a
private entity after diluting technical
and financial bids in its favour. On the
other hand, in Ayush Grams at Pithor-
agarh, Pauri Garhwal, Champawat,
Nainital, Bageshwar, Almora and
Uttarkashi, the government retained
control of management.
The Ayush Gram concept, the gov-
TheUttarakhandHighCourthasslammedthestategovernment’sbidtohandoverprime
propertytoaprivatefirmbasedinKolkatainthenameofmedico-tourism
By Atul Chandra
Nailing the
State’s Disinformation
I
ernment said in its counter-affidavit,
had been developed to promote medico-
tourism in the state. Through this con-
cept, the government aims to provide
specialised medical facilities for Ayur-
vedic, homoeopathic, unani, yoga and
Siddha treatments. The government also
stated that BPL card-holders will be
provided free medical facilities in Ayush
Gram and 10 per cent of indoor bed
facility will be reserved for BPL card-
holders but the court found the argu-
ment unconvincing.
Nailing the government’s doubles-
peak, Justices Sharma and Singh
reminded the government that it “had
taken a specific stand (in another PIL)
to open a multi-speciality hospital at
Bhowali on June 13, 2017. Setting up of
the hospital will require land, infra-
structure and wherewithal”. Questioning
the move to transfer the land to Emami,
the bench said, “The respondent has
acted unjustly, unfairly, unreasonably
and in an arbitrary manner while enter-
ing into the agreement with M/s Emami
Group, Kolkata.”
The judges further said: “It is a clas-
sic case where the respondent-State
has tried to help … Emami by misusing
its powers.” No cogent reason has been
given while accepting Emami’s finan-
cial bid “practically on one-sided shar-
ing of profit. The term of the lease has
been increased. The rigours of techni-
NEW LEASE OF LIFE
The Bhowali TB Sanatorium (left) may soon
be converted into a multi-specialty hospital
ratansharga.blogspot.com

cal and financial bids have been dilut-
ed”, the court said.
Holding officers of the state
“accountable for their action while
dealing with the State largesse”, the
judges described the agreement’s terms
and conditions as “unconscionable and
one-sided”. Allowing the petition, the
court quashed and set aside the
impugned order of July 28, 2010, and
also the Concession Agreement of
August 15, 2010.
The agreement between the Ayush
Department of Uttarakhand and the
business group was challenged by one
Mohammad Azam through public inter-
est litigation. The petitioner sought
quashing of the lease/contract agree-
ment for the construction of Ayush
Gram due to several blatant irregulari-
ties. For one, the petition said that the
agreement was loaded heavily in favour
of the Emami Group. The petition
pointed out that while the cost of the 15-
acre land at Bhowali sanatorium at the
prevailing circle rates “would be about
`9.00 crore”, it had been given on a 35-
year lease on a meagre consolidated rent
of `2.50 crore.
The petitioner also told the court
that about 10 acres of land belonging to
the sanatorium was given to the Emami
group for construction of a three-star
hotel/resort and setting up of Ayush
Gram, rendering the remaining area
unusable for a hospital.
Highlighting the flagrant violation of
environmental laws, the petitioner
pointed out that the leased land also
included forest area for which permis-
sion was not obtained under the Forest
Conservation Act. Permission was
sought from the central government for
only 0.95 hectares of land which has
been notified as ‘State Forest’. The area
includes 73 green oak trees and 23 trees
of other species.
The government had also not taken
permission from the State Pollution
Control Board, a mandatory require-
ment, for establishing the Ayush Gram
at the Bhowali sanatorium but had
transferred the buildings, including the
historical ‘Cappanacusha Castle’, which
used to be the residence of the Nawab of
Rampur and is 150 years old, to the les-
see on August 20, 2011.
The petitioner said that the tuber-
culosis sanatorium is still functioning.
Of its total strength of 300 employees,
225 reside in 155 houses on the cam-
pus. The petition claimed that Emami’s
proposal was blindly accepted by the
state government.
E
ven before this severe indictment
of the state government and its
bureaucrats, the High Court
had passed orders to ensure that the
Bhowali TB Sanatorium was not
allowed to lie in neglect. Clearly, the
High Court was monitoring the situa-
tion at the Bhowali TB Sanatorium
much more closely than the state gov-
ernment had thought. For example:
*In September 2017 the High Court
appointed two practising advocates of
the Court to inspect the Bhowali
Sanatorium near Nainital and “suggest
measures that would help in preserving
the facility while converting it into a
super-speciality hospital”. The survey
will be aimed at preserving the histori-
cal structures and flora and fauna in and
around the facility, one of the advocates
was quoted as saying by a newspaper.
*The same year the Court had sought
a report from the government on
Bhowali Sanatorium “within three
weeks”. Appearing on behalf of the gov-
ernment, Additional Secretary, Health,
Pankaj Pandey and Director-General,
health, DS Rawat, on July 5, 2017
informed the Court that they had pre-
pared a plan to convert the sanatorium
into a 100-bed multi-speciality hospital
at an estimated cost of `75 crore. It was
this statement which the court referred
to in its judgment of August 2018.
*In July 2018, the High Court
ordered the government of the state to
start a multi-speciality hospital on the
premises of the Bhowali Sanatorium
“within six months”.
This order was also passed by a divi-
sion bench of Justices Sharma and
Singh on a PIL which highlighted the
paucity of doctors, staff, space and
equipment at the three government
hospitals in Nainital. The Court
ordered that the government should
initiate the tender process for the con-
struction of new buildings for the
multi-speciality hospital in three
months. Minor repair of buildings at
Bhowali Sanatorium were to be under-
taken during the same period.
The government was also told to
release funds within seven days for the
treatment of TB patients admitted to
the Bhowali Sanatorium.
Established by the British in 1912,
the sanatorium is located at an altitude
of 6,000 feet. Eminent persons like
Kamala Nehru, wife of first prime min-
ister Jawaharlal Nehru, revolutionary
and writer Yashpal, and litterateur
Kailash Nath Katju underwent treat-
ment at this sanatorium.
“Therespondent(State)
hasactedunjustly,
unfairly,unreasonablyand
inanarbitrarymanner
whileenteringintothe
agreementwithM/s
EmamiGroup,Kolkata.”
—JusticesRajivSharma,
LokpalSingh(right)

Courts/ Illegal Sex Trade
VER the past decade,
there have been many
incidents of illegal flesh
trade in the garb of mas-
sage parlours in Delhi
and surrounding areas.
Many were busted by the Delhi police
but there are others which operate with
shocking ease.
Masquerading as massage parlours
allows such outlets to evade the police
and other law enforcement agencies and
helps them supply call girls to custo-
mers directly. Many of them are foreign-
ers who came to India on tourist visas
and have stayed back illegally. Arrests
over the past few years have revealed
that many are from Azerbaijan, Moro-
cco, Ukraine, Kazakhstan, Uzbekistan,
Thailand, and so on.
Such nefarious activities were taken
note of by the Delhi High Court recently
when a PIL was filed in this regard by
Ateet Bansal. The case came up before
the bench of Chief Justice Rajendra Me-
non and Justice V Kameswar Rao. The
PIL alleged that sex trafficking had be-
come a common occurrence in Delhi
and nearby areas.
It said that Bansal had chanced upon
advertisements in leading newspapers
and when he started investigating, he
received photographs of various women
and girls involved in the flesh trade.
He was also asked to meet them in a
posh place in Nehru Place and come to
IGNOU Road with `12,000 to meet
the girls.
When he reached there, he was beat-
en up by a group of people who told
him not to disclose the incident to any-
one. He managed to escape and tried
contacting the police, but to no avail. In
the meanwhile, residents and a watch-
man revealed to him that the locality
was prone to such incidents. Bansal
then started collecting evidence and
approached various officials regarding
such incidents, but no proper action
was taken by any official.
T
he PIL stated that “the petitioner
has approached all concerned
authorities for necessary action
yet no positive action has been taken till
date. It is respectfully submitted that
since June, 2017 the petitioner has tried
to meet, and sent numerous letters in
the form of complaint to many senior
police officials which are still pending”.
It also said: “Every year hundreds of
illegal immigrants stay back beyond the
visa permit and engage in illegal flesh
trade to earn quick money, owing to the
massage business being highly lucrative.
However, the police, even after repeated
tips, have been unable to take any ac-
tion against the offenders.”
The PIL said that a similar petition,
Y. Akbar Ahmad vs. The Additional
Director General of Police, was filed in
the Madras High Court. The judgment
by the chief justice of this Court said:
“We are, thus, of the view that no fur-
ther directions are required in the mat-
ter except that the concerned authori-
ties should continue to perform their
duties in accordance with law. But in
order to ensure the continued action,
we would monitor it for sometime to
see that seriousness is maintained.”
The petitioner said that incidents of
illegal flesh trade were reported by na-
tional and international newspapers
and people from foreign countries stay-
ing back for illegal flesh trade posed a
threat to the security of the nation. Ap-
art from them, there were women who
had been illegally brought to India as
part of the flesh trade.
Following the PIL in the Delhi case,
the bench issued a notice to the Delhi
government and police and asked them
to file a reply by November 27.
Medium
is the
Massage
O
TheDelhiHighCourttakesnoticeofa
PILonmassageparlourssoliciting
customersforthefleshtrade
By Deepankar Malviya
SEX RACKET
(Above) Police with a group of foreigners
involved in illegal flesh trade
deccanchronicle.com

India legal 03 september 2018

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