India Legal 04 June 2018

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ord, God of Abraham, God of the Pro-
phets, God of Love, you created us and you
call us to live as brothers and sisters...Keep
alive within us the flame of hope, so that
with patience and perseverance we may
opt for dialogue and reconciliation. In this way
may peace triumph at last, and may the words
‘division’, ‘hatred’ and ‘war’ be banished from the
heart of every man and woman. Lord, defuse the
violence of our tongues and our hands. Renew our
hearts and minds, so that the word which always
brings us together will be ‘brother’, and our way of
life will always be that of: Shalom, Peace, Salaam!”
This is part of Pope Francis’ invocation for
peace. He chanted this recently for Syria and Iraq,
for Israel and Palestine, for the impoverished
Central African Republic. In his traditional Sunday
blessing, he has asked for an end to “vendettas”.
In strife-torn Kashmir last month, hundreds of
Hindu priests and devotees prayed for peace and
harmony in the state to honour the great Adi
Shankaracharya on his jayanti. Many of them had
come from Kanchipuram. As one worshipper put
it: “Our Guru (Acharya Sri Jayendra Saraswathi) is
for the whole world and he taught us to pray for
peace, harmony and brotherhood, especially
for Kashmir.”
On the holy occasion of Ramadan, world lead-
ers including Justin Trudeau and Benjamin
Netanyahu reached out to their Muslim “brothers
and sisters” and repeated the blessings of the
Prophet. Nobody accused them of “Muslim
appeasement” for political gain, or the Vatican’s
interference in the internal politics of other nations
through Christian doctrines.
In contrast, India showed its worst communal
face. In a rare gesture, worthy of applause by all
who revere the Indian Constitution and its com-
mitment to religious freedom, tolerance and liber-
ty, Prime Minister Narendra Modi first tweeted his
Ramadan greetings in Urdu and in English. He
also posted a sound clip of his last “Mann ki Baat”
programme in which he had extended his greetings
in advance, exhorting one and all to follow the wis-
dom of the Prophet. Saying that the holy month
stood for the virtues of harmony, kindness and
charity, he said: “I convey my greetings and pray
that the Holy Month brings peace and happiness
in everyone’s life.”
Modi, for the first time in his life perhaps, expe-
rienced what it is like to be at the receiving end of
bigotry and venom. Hindutva trolls and venomous
bhakts showed their fangs on Twitter. Here’s a taste
of the mindless hatred:
“Forget getting Muslim votes, even Hindu vot-
ers will desert you.” “O secular modiji thoda control
karo. Nota bhi hara sakta ai apko. muslimm vote
dega nahi, hindu se milegi nahi.” “Why Modi does-
n’t tweet in Sanskrit, Why Muslims don’t say ‘Jai
Shri Ram’?” “Have you ever wished Hindus in
Sanskrit on Ram Navami?”
Similarly, a wave of bigoted condemnation by
right-wing brigades has crashed on Archbishop
Anil Joseph Couto of Delhi who more or less
repeated the sentiments of the Pope, the
Shankaracharya and the Ramadan wishes of world
leaders. In a May 8 letter to local churches, he
wrote: “We are witnessing a turbulent political
atmosphere which poses a threat to the democratic
principles enshrined in our constitution and the
secular fabric of our nation… This is our cry,
Heavenly Father, in these troubled times as we see
the clouds eclipsing the light of truth, justice and
freedom… As we look forward towards 2019 when
we will have a new government, let us begin a
prayer campaign for our country… which marks
the Anniversary of the Apparition of the Blessed
Mother at Fatima consecrating ourselves and our
nation to the Immaculate Heart… It is our hal-
lowed practice to pray for our country and its polit-
ical leaders all the time but the more so when we
approach the general election.”
Howls of protest from the BJP and its presi-
dent, Amit Shah, followed. They saw this as an
anti-BJP harangue, as religious interference in pol-
itics, as a foreign (the Vatican’s) attempt to influ-
ence the upcoming elections, so much so that
Subramanian Swamy even recommended cutting
THANK YOU, FATHER
Inderjit Badhwar
Letter from the Editor
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activistssaw
thisasan
anti-BJPharangue,
asreligious
interferencein
politics,asa
foreign(the
Vatican’s)attempt
toinfluencethe
upcomingelections.
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| INDIA LEGAL | June 4, 2018 3

ties with the Vatican.
Forget, for the moment, the delicious irony here.
An avowedly Hindu-oriented party determined to
create a millennial Hindu Rashtra through politico-
religious polarisation, expressing righteous indigna-
tion over a religious minority (Christians are about
three percent of India’s population) attempting to
split the country along religious lines because of a
letter from an archbishop!
Couto was at pains to explain that he was not
indirectly referring to any particular party but rather
offering the hope of prayer to spread balm over what
has been a surcharged atmosphere of intolerance
and bigotry in which Christians have certainly been
among the victims of paranoid hyper-nationalism.
Couto had said nothing new. The same trepidation
(unaccompanied by prayer, though) has been re-
peated by eminent personalities like former BJP
Finance Minister Yashwant Sinha and Admiral Ram
Das and anti-terrorist hero and former police chief
Julio Ribeiro in blunt language.
Had the archbishop chosen to speak more direct-
ly about the threats to the Christian minority—and
he has a right to speak for his community should he
so desire—facts would have supported him. In its
2018 report, the United States Commission on
International Religious Freedom said religious free-
dom was continuing on a “downward trend” in India.
Stories in Indian and international newspapers
are increasingly highlighting this problem: “Chris-
tian pastors were set upon by a gang wielding knives
and metal rods, leaving one so badly injured he suf-
fered brain damage.” (Rebecca Flood in the London
Express, August 2017.) “Christians In India
Continue To Live In Fear, Despite Modi’s Promises
Of Equality.” (Arielle Dreher, Religion News Service.)
“Compared to 2016, attacks against Christians in
India by extremists more than doubled in 2017 amid
efforts to label the religious minority a danger to the
state. The persecution ranges from threats and phys-
ical violence to destruction of church property, but
false allegations against Christians have also
increased.” (Catholic News Agency.)
Reuters recently reported that the sensational
vandalism at Delhi’s famous Mt Carmel School “rip-
pled through other Christian schools. The attack was
the sixth this year in an ongoing series targeting
Christian communities and schools across India”.
It was also the turning point for Prime Minister
Modi to address the growing safety concerns of
India’s minority Christian community. Modi imme-
diately asked the Delhi police commissioner to inves-
tigate the attacks, and he addressed the Christian
community, saying: “The government will not allow
any religious group, belonging to the majority or the
minority, to incite hatred against others overtly or
covertly. Mine will be a government that gives equal
respect to all religions.” But even after Modi’s
address, the attacks continued. In March, an elderly
nun was raped in Kolkata, and a Christian school in
West Bengal received anonymous threats, according
to a Times Of India report. In April, St Mary’s
Church in Agra, Uttar Pradesh, was vandalised, set-
ting off a wave of protests.
Actually, latent prejudice against Christians,
fanned by Hindutva ideologues, is not new. It sur-
faced prominently during the debates in the
Constituent Assembly. The burning issue was
whether freedom of religion should include the right
to convert and propagate.
“All this talk,” said one writer at the time, “about
mass conversions being achieved by improper means
is absolute balderdash… For several centuries
Hindus have kept the so-called untouchables from
their temples and still do so in most places. It is a
curious mentality that excludes a homeless man
from one’s own house and will not allow him to enter
someone else’s… Man has certain inalienable rights
which not even a majority vote can take away. One of
these rights is that he is free to choose his religion or
4 June 4, 2018
Letter from the Editor
“Iconveymygreetingsand
praythattheHolyMonthbrings
peaceandhappinessin
everyone’slife.”
—PrimeMinisterNarendra
Modi’spublicmessageonthe
occasionofRamadan
Instrife-tornKashmirlastmonth,
hundredsofHindupriestsand
devoteesprayedforpeaceand
harmonyinthestatetohonour
thegreatAdiShankaracharya(left)
onhisjayanti.

society, without his motive being impugned by gov-
ernment, whether fascist, communist or democratic.”
The famous British Methodist missionary, Rev.
Stanley Jones noted that there was widespread fear
among Christians that in independent India, they
would be persecuted, eliminated, or forced to return
to the castes from which they had been converted.
He provides this fascinating account of his own
subsequent meeting with senior Congressmen even
as the Constituent Assembly debate raged:
“So I went to Sardar Patel, the strongman of the
Congress, and asked him what part the missionaries
can play, if any, in this new India… He very thought-
fully replied, ‘Let them go on as they have been going
on—let them serve the suffering with their hospitals
and dispensaries, educate the poor and give selfless
service to the people. They can even carry on their
propaganda in a peaceful manner. But let them not
use mass conversions for political ends.’ ‘If they do
this then there is a place for them in the new India?’ I
asked. ‘Certainly,’ he replied, ‘we want them to throw
themselves in with India, identify themselves with the
people and make India their home.’ This was quite
clear and straightforward and from the man who has
to do with the question of who shall or shall not come
into India, for he is the Home Member.
“I then saw C Rajagopalachari and asked him the
same question. His reply was that ‘while I agree that
you have the right of conversion, I would suggest
that in this crisis when religion is dividing us it
would be a better part of your strategy to dim con-
versions and serve the people in various ways until
the situation returns to a more normal state. If you
are not willing to do that then I would suggest that
instead of ‘profess, practise and propagate’ as sug-
gested in the Committee, it should be ‘believe, wor-
ship and preach’. Then I further asked, ‘Will the mis-
sionaries be tolerated or welcomed as partners in
this new India?’ His reply was: ‘If they take some of
the attitudes I suggest, then they will not only be
welcomed, they will be welcomed with gratitude, for
what they have done and will do.’
“The fourth man to whom I went was the man
whom Gandhiji calls ‘the uncrowned king of India’,
Jawaharlal Nehru, and when I asked him whether
missionaries will be tolerated or welcomed as part-
ners in the making of the new India his reply was: ‘I
am not sure as to what is involved in being looked on
as partners. But we will welcome anyone who throws
himself into India and makes India his home.’
“The fact of the matter is that the greatest hour of
Christian opportunity has come in India. I have
never had such a hearing in forty years as I have had
in these last six months in India. The tensions have
been let down. The combativeness against the
Christian faith has been eased into an attitude of
wistful yearning…
“The Christian Church must now search its own
heart and set its own house in order. It must cease
from little irrelevancies and give itself to big things.
The big thing in India is to present Christ in such a
way as to become inescapable in the India to be. And
the Church itself must be the message—it must show
itself the embodiment of the new order.”
Debate and discussion led ultimately to the
Constituent Assembly adopting Article 19 with two
minor amendments accepted by BR Ambedkar. The
right of Christians to propagate religion and to con-
vert included minor children. Article 19 later became
Article 25 of the Constitution.
On August 15, 1948, a year after India became
independent, the new nation established diplomatic
relations with the Vatican. I do not believe that
Archbishop Couto of Delhi departed from the tone
or vision of the founding fathers.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Letthem(missionaries)goonas
theyhavebeengoingon—let
themservethesufferingwith
theirhospitalsanddispensaries,
educatethepoorandgive
selflessservicetothepeople.
Theycanevencarryontheir
propagandainapeacefulmanner.”
—SardarVallabhbhaiPatel
“Thisisourcry,HeavenlyFather,in
thesetroubledtimesasweseethe
cloudseclipsingthelightoftruth,
justiceandfreedom…Aswelook
forwardtowards2019whenwewill
haveanewgovernment,letusbegin
aprayercampaignforourcountry...”
—DelhiArchbishopAnilJosephCouto

ContentsVOLUME XI ISSUE 29
JUNE4,2018
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6 June 4, 2018
Justice Squeezed
Despite the crying need for speeding up and modernising the grossly inefficient judicial system,
a large chunk of the meagre funds allotted in the budget remains unused
LEAD
14
Don’t Weaken
India
A proposal from the PMO prioritising
performance in the short Foundation
Course over the UPSC merit list in
allotting service and cadre would
compromise the services
THENATION
20

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
International Briefs..........41
Media Watch ..................48
Satire ..............................50
SPOTLIGHT
Dangerous by Design
The Varanasi flyover collapse shows that most structures in India
do not adhere to the Building and Other Construction Workers’ Act
30
42
Considering that the JD(S) and the Congress fought each other while making
extravagant election promises, each will be keeping a watchful eye on the other
No Faith in This Friendship
46Monument
to Graft
Environmentalists and political parties alike
oppose the Tamil Nadu government’s
decision to build a memorial to former
Chief Minister J Jayalalithaa
Cover Design:
ANTHONY LAWRENCE
Putting It
on Record
A top court directive to include
videography in crime probes will
help upgrade the criminal justice
system, but implementation is
easier said than done
MYSPACE
36
ENVIRONMENT
Reckoning in Tuticorin
The protests over the environmental damage by Sterlite Copper are
the result of clearances granted indiscriminately
33
Nepotism
Rules
Veteran kabaddi players have
knocked on the Delhi High Court’s
doors to end one family’s stranglehold
over the sport’s administration
38
CONTROVERSY
STATES
Rules of
Engagement
The corporate milieu brings
the sexes together, but
laws such as the Sexual
Harassment of Women at
Workplace Act have pro-
moted an antagonistic view
of the mating game
24
FOCUS
COLUMN
Friend in Court
The apex court’s directive to
all high courts to institute anti-
sexual harassment committees
will go a long way in making
women working there, including
advocates, feel safe, writes
Kumkum Sirpurkar
28

8 June 4, 2018
“
RINGSIDE
“Fear would be an
exaggerated word. I
would say there is
anxiety... among the
minorities... because
the government is
not... conveying the
right message.”
—Cardinal Oswal
Gracias, president of
the Catholic Bishops’
Conference of India
“Such people should
be booked who
forget their sisters
and lay their hands
on the sisters of oth-
ers. Just let us come
to power this time,
we will get their
hands chopped.”
—Arvind Rajbhar, the
general secretary of
the Suheldev Bhartiya
Samaj Party, on the
rape of a woman in
Chandauli district of
Uttar Pradesh
“The area mentioned
by the report totally
belongs to China. It
is completely within
China’s sovereignty.
We hope relevant
media can refrain
from hyping up
based on
groundless report...”
—Chinese foreign
ministry spokesman
Lu Kang on mining
operations in Lhunze
county adjacent to
Arunachal Pradesh
“I am convinced that
democratic liberties
only belong to the
bold and vigilant
people. The docile
and timid don’t have
liberties.... If some-
thing is good, it is to
be preserved; if
something is doubt-
ful, it is to be checked
and rectified; if
something is bad, it
is to be destroyed.”
—SC judge Justice J
Chelameswar
“Governors—who are under the Constitution
appointed by the Central government—are
sometimes men/women-of-straw, and regard
themselves as holding office on behalf of the
political party in power at the Centre and
act accordingly.”
—Eminent jurist Fali Nariman on Karnataka Governor
Vajubhai Vala's decision to invite the BJP to form the
government in Karnataka
“Now there is a
health insurance
scheme planned for
10 crore families.
There is the crop
insurance scheme.
We have only a limit-
ed amount of money.
So if we subsidise
(petrol/diesel), toh
gadbad ho jaayega.”
—Union Minister and
BJP leader Nitin
Gadkari on why the
centre should not
subsidise fuel prices
“Landed safely at
Pasighat airport
few minutes ago
flying from
Guwahati on
Alliance Air.
Proud to be part of
this historic
moment....”
—Arunachal Pra-
desh Chief Minister
Pema Khandu on
Twitter, after he
flew on the first
commercial flight
to the state
“There is a storm of
protectionism at the
global level which is
centred around the
concept of Me and
Myself... India belie-
ves in... We, Us and
Ourselves...”
—Union Minister
Sushma Swaraj on
Donald Trump’s “Me
First” approach

The swearing-in ceremony of
Karnataka Chief Minister HD
Kumaraswamy on May 23 proved to be
the grandest show of unity yet among
the non-NDA parties who, despite their
ideological and political differences,
are trying to cobble a front that could
stop the Narendra Modi juggernaut in
May 2019. The geniality between UPA
chairperson Sonia Gandhi and BSP
supremo Mayawati, knocking their fore-
heads, holding hands and waving to
the crowds in a hitherto unseen public
display of affection, made national
headlines. What went relatively unre-
ported, though, was the lukewarm
camaraderie between Sonia and West
Bengal Chief Minister Mamata
Banerjee. While Banerjee greeted
Sonia and her son, Congress President
Rahul Gandhi, with her usual courtesy,
she didn’t go overboard like Mayawati.
The ceremony had also brought
Banerjee and her arch rivals, CPI(M)
General Secretary Sitaram Yechury and
Kerala Chief Minister Pinarayi Vijayan,
to the same dais. The Trinamool chief
ensured that she wasn’t seen in the
same frame as the Left leaders.
Banerjee has been discussing the pos-
sibility of stitching a federal front, with-
out the Congress playing a lead role.
An all-out PDA with Sonia and Rahul, in
such a scenario, would have sent
mixed signals about her seriousness
on forming the federal front.
10 June 4, 2018
An inside track of
happenings in Lutyens’ Delhi
The rumour mills in Delhi are abuzz with
speculation that Finance Minister Arun
Jaitley, now convalesc-
ing from a kidney
transplant, may not
be recalled from
his rest period to
present the next
budget before the
election. The ebul-
lient and erudite
English-speaking face
of the BJP is reportedly not pleased with
some of the economic “initiatives” attrib-
uted to his ministry. The advisers
appointed to serve him, including his
OSD, have direct access to the Prime
Minister’s Office.
Circles close to Jaitley also hint that
“Arunji” is not too pleased with his “tem-
porary” replacement, Railways Minister
Piyush Goyal, who has been in the news
because of allegedly dubious business
deals benefiting companies linked to
him through his position. This does not
augur well for the party’s image. There
is also an apparent conflict of interest.
Goyal is also the BJP party treasurer,
and critics maintain that putting a pri-
vate party’s top finance man in charge
of the nation’s treasury is not ethical or
proper at all.
FOX GUARDING
THE CHICKENS
The capital’s police chiefs have been a
friendly lot. The best known motto for their
force was “With You Always”. Some of the
notables among them include Ved
Marwah, Vijay Karan, Arun Bhagat, MB
Kaushal, Nikhil Kumar and TR Kakkar.
Most of them followed an open door policy
for citizens with grievances and reporters.
The current Commissioner, Amulya
Patnaik, a 1985-batch officer of the
AGMUT (Arunachal Pradesh, Goa,
Mizoram and Union Territories) cadre, who
took office in January 2017 after Alok
Verma’s exit, is a bird of a different feather.
He maintains a reclusive aura, preferring
to communicate with the powers that be—
the home ministry—rather than the hoi
polloi (Greek for aam
aadmi… pun intended!).
He shunts off appoint-
ment seekers, including
those from the Delhi
government, to his fac-
totums. An insider
quipped that the
new motto for the
service should
be “Without
You, Always”.
WITHOUTYOU
UNITEDBUTDISTANT
Some of the aftershocks of recent eco-
nomic experiments like demonetisation
and the hasty implementation of the
Goods and Services Tax are refusing to
go away no matter how positive a face the
government may want to put on these ini-
tiatives. Fearing adverse political conse-
quences, the government has been
instructed not to put out the latest employ-
ment statistics compiled by the secretary
of labour which shows an estimated loss
of two crore jobs during the last year. This
figure (which some economists say is
much lower than the reality on the ground)
negates the Modi government’s boast of
creating one crore jobs a year each year
since 2014. The instructions are also
meant for the 2018 statistics as well. The
“jumla” hashtags are out again.
NO NEWS IS GOOD NEWS

Delhi
Durbar
Congress president Rahul Gandhi’s
attempt to avoid an implosion within the
Madhya Pradesh unit of his party ahead
of the assembly polls due in the state in
November was witnessed yet again
recently when he constituted six poll-
related committees for the MP
Congress. After appointing Kamal Nath
state Congress chief and Jyotiraditya
Scindia as head of the campaign com-
mittee, thereby giving the two rival
satraps key roles in MP politics, Rahul
has now sought to pacify heads of the
other two factions—former Chief Mini-
ster Digvijaya Singh and former Union
Minister Suresh Pachouri. Digvijaya,
sulking over being sidelined in state pol-
itics while his arch-rival, Scindia, bags
plum roles, has been made chairman of
the party’s coordination committee. His
close aide and veteran MLA Rajendra
Singh has been made chairman of the
manifesto committee. Pachouri, whose
term as PCC chief proved disastrous for
the Congress during the 2008 assembly
polls, has strangely been made head of
the election planning and strategy com-
mittee. The big loser is Ajay Singh,
Leader of Opposition in the MP assem-
bly, whose name is missing from all six
panels. Clearly, managing factional
feuds in the MP Congress is proving to
be a tightrope walk for Rahul.
RAHUL’S TIGHTROPE WALK IN MP
The movers and shakers of the steel
frame of Indian governance—the
bureaucrats—especially in the IAS and
central services—are fuming. Their
grouse is that Gujarat cadre officers
are hogging all promotions at the
expense of qualified babus from the
UP and Bihar cadres. PM Modi has a
special liking for officers from his home
state. Starting in 2014, some of the
people shifted from Gujarat to Delhi
under Modi’s dispensation include
Hasmukh Adhia (revenue secretary),
Rita Teotia (commerce secretary), PK
Pujari (secretary, ministry of power),
Tapan Rai (secretary, corporate affairs),
Arvind Kumar Sharma (joint secretary,
PMO), RP Gupta (joint secretary, coal),
Raj Kumar (joint secretary, economic
affairs), Atanu Chakraborty (director-
general of hydrocarbons), Anita Karwal
(joint secretary, HRD ministry) and
Guruprasad Mohapatra (chairman,
Airports Authority of India). Gujarat-
cadre IPS officers Rakesh Asthana and
YC Modi were moved into top CBI
slots. AK Patnaik was made head of
the national intelligence grid.
GUJARAT SHINING
Fuel prices are clearly the Modi gov-
ernment’s Achilles heel. At his first
press conference following the
Karnataka debacle, BJP President
Amit Shah spoke on a range of issues,
but when an NDTV reporter asked why
his government had decided to
increase the prices of petrol and
diesel after freezing them for more
than 15 days, coinciding with the poll
campaign in Karnataka, Shah
accused the journalist of running an
agenda. Shah told him: “I will only talk
about Karnataka today although I
understand your agenda.”
TAILPIECE
The BJP is supposed to be
a “janata” or “people’s”
party—a party with a differ-
ence with its ear to the
ground. One of its proudest
boasts was that, as com-
pared to the aloofness of
the imperious Gandhis
occupying 10, Janpath
guarded by zealous door-
keepers, its leaders mingled
openly in an open door poli-
cy. That’s not quite how
things are now.
Prime Minister Modi,
except for larger-than-life
appearances in political rallies and trips
abroad, is hardly the approachable man
he used to be. And the attitude seems
to have trickled down to the BJP brass.
Its swanky new headquarters at Deen
Dayal Upadhyay Marg now has a caste
system enforced by the elevator. If you
wish to visit the fourth and fifth floors
where the bigwigs sit, chances are you
will never make it. The elevator will auto-
matically come to a grinding halt after
reaching the third floor from where the
saffron party’s bouncers will let you pro-
ceed only if you are specially anointed.
HALT!WHOGOESTHERE?

Over 200 Kashmiri migrant teachers work-
ing in Delhi government and MCD
schools had been in limbo since 1994, as
they were on contract. However, the Delhi
High Court (above) saw to it that their servic-
es were honoured and jobs regularised.
Despite working in government organisa-
tions, they enjoyed no benefits as per law.
The Court said that “it was sad for the
society that the teachers had to knock at the
court’s door with their claims. The petition-
ers’ hope of returning to their
homes, and for peace in the
Valley may not yet be attainable;
but the acceptance of their
claims, should act as a balm,
re-kindle their confidence in the
society and our commitment to
equality and equal opportunity”.
It further observed that migrant
teachers had to toil for 20
years, with less than the mini-
mum scale, and “this is a sad
commentary for the state which
in the first place could not assure the securi-
ty and safety of their lives and possessions
that led them to flee their native state and
become refugees, in a manner of speaking,
in their own country.” The plea, filed through
advocate BL Wali, had contended that the
pay that migrant teachers received for PGT
category was `32,712 and for TGT category
it was `32,248, whereas for regular PGT, it
was more than `1 lakh and for regular TGT, it
was between `85,000 and ` 90,000.
Courts
12 April 2, 2018
—Compiled by India Legal Team
Sunanda death
case on fast track
The trial of Sunanda Pushkar’s
death has been transferred to a
Patiala House special fast-track
court. The next date of hearing is
May 28. The transfer has been
done on the ground that Shashi
Tharoor, who has been named as
an accused in the police
chargesheet, is an MP. The apex
court had ruled that fast-track
courts would be formed to con-
duct trial in cases involving MPs
and MLAs. It had also given
instructions to complete these
trials within a year. The Delhi
Police had submitted the
chargesheet at the Patiala House
Court under various sections.
Plea on CLAT exam
glitches in SC
The apex court decided that the
issue of discrepancies and
glitches in the CLAT 2018 exams
will be dealt with on May 30. It
was told that a grievance redres-
sal committee had been formed to
look into the technical glitches
during the examination. The com-
mittee will examine every single
representation and take appropri-
ate decision from case to case.
The Court said reports must be
prepared by May 29 for submis-
sion on May 30. It also said that a
separate email ID should be creat-
ed for filing online complaints. On
pleas made in various High Cou-
rts, the apex court said it would
wait for the committee’s report.
The Delhi High Court gave the go-ahead for
the auctioning of Taj Mansingh Hotel in
New Delhi. The Court dismissed the plea of
the Tata Group-owned Indian Hotels
Company Limited (IHCL), which had chal-
lenged the tender procedure followed by the
New Delhi Municipal Council (NDMC) for the
proposed auction of the hotel. It had earlier
reserved the judgment.
In April 2017, the Supreme Court had
allowed the civic agency to e-auction the
hotel. It had then directed NDMC to take into
account the unblemished records and capa-
bilities of IHCL while auctioning the property.
NDMC had given the hotel for a lease of
33 years to IHCL. In 2011 after the lease
expired, IHCL again was given nine tempo-
rary extensions on various grounds, with
three of them granted last year itself.
In its arguments, IHCL had raised several
issues, including the revenue-sharing model.
The apex court granted
Tamil Nadu BJP leader S
Ve Shekhar interim relief
from arrest till June 1 for
allegedly sharing a derogato-
ry Facebook post on women
journalists. It also issued a
notice to the state govern-
ment and directed that no
coercive action be taken
against him till the matter is
heard on June 1. Earlier, the
Madras High Court had dis-
missed the actor-turned-
politician’s plea for anticipa-
tory bail after the state’s
cyber crime cell lodged an
FIR against him under sec-
tions related to IPC and
Tamil Nadu Prohibition of
Women Harassment Act.
Shekhar contended that he
was not the author of the
post and had not read the
contents while forwarding it.
He later challenged the High
Court verdict in the SC.
Migrant teachers’ jobs regularised
Taj Mansingh hotel to
be auctioned
Interim relief for Tamil Nadu politician

Courts/ UP High Court/ Judicial Service Exams
N another spat between the Judi-
ciary and the Executive—this time
over the Uttar Pradesh Judicial
Service Exams—the latter has put
its foot down and rejected a request
from the former. This is the first time
that such a request has been sent and
rejected, said sources.
Judicial Service Exams are held in
May across the country, and while in
some states, it is conducted by respec-
tive High Courts, in others, it is con-
ducted by the State Public Service
Commission. In UP, it is conducted by
the UPPSC.
However, recently, the chief justice of
the Allahabad High Court, Justice Dilip
Babasaheb Bhosale, sent a letter to the
Yogi Adityanath administration asking
that the conduct of the exams be trans-
ferred to the High Court. That would
have enabled the Court to have total
control over all civil judges’ and judicial
officers’ appointments. As of now, they
are selected through online exams.
Approximately 300 such officers will
be selected.
India Legal has learnt from sources
that within a week of receiving the letter
from the chief justice, the UPPSC (read
the government) wrote back, rejecting
the idea.
As of now, the UPPSC notification,
asking for online applications for the
“2018 UP Judicial Service Civil Judge
(Junior Division) Examination 2018
(Pre-Mains Exam)” stays, but there is a
rider in the notification.
It says: “UPPSC Civil Judge Exam
will not (be) conduct(ed) on 13 May,
2018. UPPSC has still not received
Requisition regarding Vacancies. After
Receiving Details of Vacancies, Online
Application will start.”
A government notification (a news
item) alongside gives further insight
into the impasse. Explaining why the
exam could not be held on May 13 as
scheduled, it says that it was supposed
to get details of the vacancies by Janu-
ary 15. However, as the details were not
received, this exam is being postponed.
While this has no direct bearing on the
spat with the Judiciary, it shows that
there is some communication gap.
T
he eligibility criteria of the candi-
dates for the pre-exam makes it
clear why a court would want to
conduct the same. It says (among other
things) that candidates “must be a
Bachelor of Laws of a University estab-
lished by Law in U.P. or any other
University of India recognized for this
purposes by the Governor”, or “Must be
an Advocate enrolled under the provi-
sions of the Advocate Act 1961 or a
Barrister of England or Northern
Ireland or a Member Faculty of
Advocates in Scotland...”
These candidates after selection will
be directly involved in dispensing
justice in courts and it is not surprising
that the court wants to be involved in
these exams.
With the oft-proposed National
Judicial Appointments Commission in
limbo, High Courts have this cumber-
some responsibility. In instances where
they directly conduct the recruitment to
lower courts, the judges themselves set
the questions and supervise corrections.
And the person in charge of all this is
the registrar who has a small workforce
at his disposal.
Last year, nine High Courts opposed
a proposal to have an all-India service
for the lower judiciary. Eight sought
changes in the proposed framework
and only two supported the idea. But it
is clear that most of the 24 High
Courts want control over the subordi-
nate judiciary.
Testing Times?
AnotherJudiciary-Executivetusslehaserupted,thistimeover
theconductofexamsforsubordinatejudiciaryinthestate
By India Legal Bureau
UNSEEMLY ROW
(L-R) Chief Justice DB Bhosale of the
Allahabad High Court; UP CM Yogi Adityanath
I

Lead/ Judiciary/ Budget
Financially
Anthony Lawrence

ment. The central government also
releases additional funds under the
Centrally Sponsored Scheme (CSS) for
development of judicial infrastructure.
The law department sanctions establish-
ment of new courts and the home de-
partment releases funds for creation and
maintenance of judicial infrastructure.
According to latest statistics gathered
by the Supreme Court, the total pending
cases in the subordinate courts across
the country has risen from 2.68 crore in
2013 to 2.71 crore in 2015. But for dis-
pensation of these cases, there is not
sufficient infrastructure—judges, staff
supporting them, lawyers, courtrooms,
and so on—due to which this pendency
increases every year. There is a shortage
of 5,018 courtrooms in the subordinate
judiciary. As of January 2016, there are
15,540 court halls to cater to the sanc-
tioned strength of 20,558 judicial offi-
cers. There is a shortage of 8,538 resi-
dential quarters for accommodation of
judges in the subordinate courts. Also,
there are currently 41,775 vacancies of
judges, magistrates and judicial officers.
To solve this, the Budget had pro-
posed an outlay of `630 crore under the
CSS for constructing 600 additional
court halls and 350 residential units in
the coming year. But will this work? The
answer can very well be guessed by
analysing the performance under the
13th Finance Commission Grant. In
2010, the Commission had given a spe-
cial grant of `5,000 crore spread over
five years to both the Union and state
UDGET alloca-
tion for the judi-
ciary is a serious
concern. In so far
as the Supreme
Court is con-
cerned, the government is not providing
sufficient budget and, time and again,
the Chief Justice has to intervene to
seek sufficient allocation of Budget,” for-
mer Chief Justice of India (CJI) P
Sathasivam had said in his farewell
speech in 2014.
What the former CJI and the current
governor of Kerala said in 2014 is some-
thing that CJIs and judges of the apex
court and various high courts have men-
tioned before and that too repeatedly—
the measly budgetary allocation is gross-
ly inadequate to improve infrastructure,
set up new courts and appoint judicial
officers, all of which are imperative to
bring down the massive pendency rate
of cases, from the apex court all the way
down the ladder.
To get an idea of the magnitude of
the problem, consider this—there are
more than 3.3 crore cases pending in
courts across the country, many of them
for over 10 years. Of these, around
60,000 are in the Supreme Court, a lit-
tle over four lakh in various high courts
and about 2.9 crore in the district and
subordinate courts. Simple logic sug-
gests that with more courts and more
judges, the problem could be tackled
easily. But for that, you need money and
the judiciary has scarce resources. For
decades now, the judiciary in India has
survived on a negligible allocation that
has ranged between 0.2 percent and 0.4
percent of the annual budget.
The problem of meagre allocation of
funds is compounded by under-utilisa-
tion of the available funds. The Union
Budget for 2017-18 had earmarked
`1,174.13 crore for the judiciary. The
Supreme Court was allocated a sum of
`247.06 crore, a marginal increase of `4
crore from last year and included ad-
ministrative expenditure, salaries and
travel expenses for the chief justice and
other judges, security personnel and
related needs like stationery, office
equipment, security equipment, mainte-
nance of CCTV and printing of the
annual report of the Court. The apex
court’s budget is prepared by its regis-
trar general, which is forwarded by the
law ministry to the finance ministry.
The same process is followed by high
courts who forward it to the state gov-
ernments. However, high courts also
have the additional responsibility of
preparing budgets for lower courts with-
in their jurisdiction.
The primary responsibility of infra-
structure development for the subordi-
nate judiciary lies with the state govern-
B“
StrangledDespitethecryingneedforspeedingupandmodernisingthegrosslyinefficientjusticedelivery
system,alargechunkofthemeagrefundsallottedintheBudgetremainsunused
By Usha Rani Das
Fordecadesnow,thejudiciaryhas
survivedonanegligibleallocation.
Theproblemofmeagreallocationof
fundsisfurthercompoundedbyunder-
utilisationoftheavailablefunds.

Association, told India Legal: “Has the
judiciary utilised whatever funds it has
been allocated? The answer is ‘no’. They
have not even spent the meagre amount
that has come. If you spend less than
what has been allotted to you, then next
year that much less amount is allotted to
you in the budget. How can they justifi-
ably ask for more money when they
have not spent the amount allotted
properly and sensibly?”
As a result, the judiciary keeps beg-
ging the executive for the funds and the
funds don’t come. A closer look at the
financial audit reports of some repre-
sentative states paints a scarier picture.
In Uttar Pradesh, the state government
had planned to construct 500
16 June 4, 2018
governments to be utilised for the fol-
lowing purposes—operation of morn-
ing/evening/special shift courts, estab-
lishing alternative dispute resolution
centres and training of mediators/con-
ciliators, Lok Adalats, legal aid, training
of judicial officers, state judicial acade-
mies, training of public prosecutors, cre-
ation of posts of court managers and
maintenance of heritage court buildings.
Data gathered from the ministry of
law and justice shows that at the end of
the five-year period, funds of `1,010
crore, a mere 20 percent, were ultimate-
ly utilised (see Table 1).
A
s the initial funds are not
utilised, the rest of the funds
that are due are held up which
adds to a cumulative deficit in the judi-
ciary's budget every year. Rupinder
Singh Suri, senior advocate and former
president of the Supreme Court Bar
BLEAK SCENARIO
The judiciary at all levels is affected by poor
infrastructure, lack of judges, supporting staff,
insufficient lawyers and courtrooms. All these
have had an adverse effect on pendency of
cases over the years
Photos: Anil Shakya

courtrooms and 400 residences for judi-
cial officers in the district and subordi-
nate judiciary in the Five Year Plan
(2012-17).
T
he 2016 report of the Comptroller
and Auditor General of India for
Uttar Pradesh found major defi-
ciencies in the utilisation of the funds.
An expenditure of `827.50 crore was
incurred on construction of courtrooms
and residential accommodation for judi-
cial officers during 2011-16. The state
government could utilise only 33 percent
(`401 crore) of the budget allocation for
construction of courtrooms and residen-
tial buildings. It could only complete
construction of 37 percent courtrooms
and 28 percent residences. Against the
Plan outlay of `1,093.00 crore during
2012-16, only `699.86 crore (64 percent)
could be spent.
This is bound to affect the smooth
functioning of the courts. The report
states: “Lack of effective monitoring by
the government and inability of the exe-
cuting agencies to speed up the slow
pace of work were the main reasons for
this unsatisfactory state of affairs.”
Though, as per the directions of the
Supreme Court, it was mandatory to
provide residential accommodation to
each judicial officer, there is an acute
shortage. Only 107 residences were
available against the required 234,
thereby leaving a shortage of 127 resi-
dences (54 percent). The report added:
“...the shortage of residences is likely to
continue in future, as against 140 court
rooms under construction only 78 resi-
dences (56 per cent) were being con-
structed. The construction of residential
accommodation and court rooms was
marred with deficiencies such as lack of
supporting infrastructure, inadequate
survey, clear site not being available,
delayed approval of maps, slow pace of
work, etc.”
The story is repeated in almost all
the states. The 2016 audit report of
Odisha shows that the overall percent-
age of utilisation of funds received dur-
ing 2013-16 was 62.20 and the percent-
age of utilisation of funds received un-
der the State Plan was nearly 66.
However, utilisation of funds under the
13th Finance Commission was only
31 percent (see Table 2). Of the sanc-
tioned 180 new courts, construction of
buildings for 140 courts was taken up,
out of which 125 projects were complet-
ed and 15 were in progress. However, no
action was taken for creation of infra-
structure in respect of the remaining 40
new courts.
The audit report of Assam for the
year ended March 2017 also shows that
only `209.96 crore was utilised out of
the total grant received of `312.10 for
administration of justice.
T
here have been several instances
that have highlighted gross mis-
management of funds of the
judiciary. In Nagaland, the government
is said to have allegedly withdrawn
`22.42 crore from the state exchequer
for the construction of judges’ bunga-
lows but no area has been earmarked
yet. The government allegedly also with-
drew `44.24 lakh against electrification
and water supplies though the basic
structure of the High Court building is
yet to be completed. The construction
started in 2007 with an estimated
budget of `43 crore. Eleven years hence,
only 35 percent of the work has been
completed.
The Gauhati High Court directed the
Central Bureau of Investigation (CBI) to
conduct a preliminary investigation into
charges of misappropriation of public
money in the construction of the com-
plex in Kohima.
Between March 2009 and March
2017, there were 18 withdrawals by the
Department of Justice and Law, Naga-
land, and the project cost was increased
to `52.63 crore. The department also
took a loan of nearly `2.46 crore from
HUDCO. The Court said: “There-fore,
there is a prima facie case of misappro-
priation of huge public money and
siphoning off the same in a systematic
manner to the gross prejudice to the
public exchequer.”
Though the situation is slightly bet-
ter in Delhi, tales of misappropriation of
funds abound. The recent turmoil in the
Tis Hazari courts started as lawyers
were protesting against the renovation
of the court buildings. A source, on
ThoughaspertheSCdirections,itwas
mandatorytoprovideresidentialaccom-
modationtoeachjudicialofficer,thereis
anacuteshortage.Only107residences
wereavailableagainsttherequired234.
Bhavna Gaur

condition of anonymity, told India
Legal: “Lawyers themselves are one of
the main hindrances to infrastructure
development. They are afraid that they
might not be allocated a chamber in the
new building and they don’t want to lose
their old chamber. Hence, they went
on strike.” Delhi Bar Council President
Ajayinder Sangwan told India Legal:
“We have a new building at Delhi High
Court on which crores of rupees have
been spent. And it is lying vacant. It is a
total wastage of funds that they could
have utilised better.”
In another incident that has become
a benchmark of the rusty infrastructure
of the judiciary, a former judge of the
Allahabad High Court heard a case in
the back seat of his car because of
unavailability of courtrooms.
The underutilisation of budgets is
also a factor in e-courts. The 2018-19
Budget allocated a sum of `480 crore
for the E-Court Mission to digitise 709
new courts and provide technical in-
frastructure to over 6,000 courts. It also
entails wi-fi connectivity and providing
solar energy in 41 court complexes. But
according to data available of 2013-14,
out of the total budget estimate of `108
crore which was revised to `77.58 crore,
only `38.89 crore has been utilised.
A
ccording to those in the know,
the digitisation of the Supreme
Court and the Delhi High Court
are on track. But a different picture pre-
vails in the rest of the country. Audit of
Phase I of the mission completed in
2015 found major shortfalls in deploy-
ment of technical manpower. The 2016
CAG report on Uttar Pradesh found that
out of 468 thin client machine sets sup-
plied in four districts, 208 sets (44 per-
cent), worth `27.87 lakh, were lying idle
for more than five years. Supreme Court
advocate Eeshan Chaturvedi told India
Legal: “I would want more budget. This
year’s budget (`1,174.13 crore) must only
go into digitising because digitising is a
one-time cost.”
According to the 2016-17 Annual
18 June 4, 2018
“Ifyouspendlessthanwhathasbeen
allottedtoyou,thennextyearthat
muchlessamountisallottedtoyouin
thebudget.Howcantheyjustifiably
askformoremoneywhentheyhavenot
spenttheamountallottedproperly?”
—RupinderSinghSuri,senioradvocate
andformerpresidentofSCBA
“Judicialbudgetisnotaplanned
budget.Sotheycanchooseanamount
astowhatisrequired.Itshouldbea
plannedbudget.Thewholeprocessof
allocation,releaseandutilisationgets
laidinbureaucracy.”
—AKTripathi,aformerjudgeofthe
AllahabadHighCourt
Utilisationoffundsunder13thFinanceCommission
Schemes Allocation
Money
Released
Money
Spent
Operation of morning/evening
courts/shift courts
2500.00 850.49 237.93
Lok Adalats/legal aids 300.00 120.36 67.89
Training of judicial officers 250.00 151.05 110.37
Training of public prosecutors 150.00 78.16 52.45
Maintenance of heritage court
buildings
450.00 198.93 106.03
State judicial academies 300.00 171.00 123.02
ADR Centres/training to
mediators
750.00 391.21 272.10
Court managers 300.00 106.73 40.37
Total 5000.00 2067.93 1010.16
` in crore

Report of the Ministry of Law and
Justice, out of `400 lakh estimated for
creation of capital assets of the National
Judical Academy (NJA), an amount of
`88.30 lakh has been released for con-
struction of 20 residential flats for staff
of NJA while the release of the second
instalment of `88.30 lakh is under
process. Chaturvedi said: “The NJA is
where judges are trained. Unless you
have proper infrastructure budgeting
you cannot have the quality of justice
dispensation that the country requires.
That is why the judiciary needs to invest
heavily in NJA.”
While some say the judiciary is at
fault, others feel that it should not
depend on the executive for the release
of funds. Supreme Court Bar
Association President Vikas Singh, told
India Legal: “The government does not
give priority to judiciary. There is such
low utilisation of budget mainly because
of lack of appointment of judges. There
should be a huge infrastructure upgra-
dation so that justice is affordable and
quick.” The Policy and Action Plan
report of the National Court
Management Systems (NCMS) commit-
tee formed by the SC states: “If the insti-
tution of Judiciary is not independent
resource-wise and/or in relation to
funds, from the interference of the
Executive, judicial independence will
become redundant and inconsequential.
Executive cannot be allowed to interfere
in the administration of Justice by hold-
ing back funds for development of judi-
cial infrastructure and expansion of
Courts and declining right to appoint
sufficient staff, etc.”
A former judge of the Allahabad
High Court, Justice AK Tripathi, told
India Legal: “Judicial budget is not a
planned budget. So they can choose an
amount as to what is required. Accor-
ding to that it is allocated. It should first
of all be a planned budget. Also, the
whole process of allocation, release and
utilisation gets laid in bureaucracy.
Definitely the budget cannot be utilised.
If we want to increase the sanctioned
strength of the staff, we have to depend
on the executive. “
In a December 2017 piece in The
Indian Express, SC lawyer Siddhartha
Dave wrote: “Politicians often use statis-
tics to criticise the judiciary; they say it
is not doing its work properly and
should improve its efficiency. But what
is conveniently omitted are other statis-
tics: As of April 2017, there were 430
posts of judges and additional judges
lying vacant in high courts, and 5,000
posts vacant at the district level and
lower. When suggestions to fill vacancies
are made by the chief justice, the gov-
ernment’s response is the same: They do
not have the money for it. By what mira-
cle does the Executive hope to reduce
the pendency of cases without filling
vacancies? It probably doesn’t, since
that is the only stick it has to beat an
independent judiciary with.” Any debate
about the reasons why justice is both
delayed and denied in India is an end-
less one. But the double whammy of
meagre resource allocation and its
underutilisation is something that the
country could do without.
“Wehaveanewbuildingatthe
DelhiHighCourtonwhichcroresof
rupeeshavebeenspent.Anditis
lyingvacant.Itisatotalwastage
offundsthattheycouldhave
utilisedbetter.”
—AjayinderSangwan,president,Delhi
BarCouncil
“TheNationalJudicialAcademy(NJA)is
wherejudgesaretrained.Unlessyou
haveproperinfrastructurebudgeting,you
can’thavethequalityofjusticedispen-
sationthatthecountryneeds.Thejudi-
ciaryneedstoinvestheavilyinNJA.”
—EeshanChaturvedi,SupremeCourt
advocate
“Thegovernmentdoesnotgivepriority
tojudiciary.Thereissuchlowutilisation
ofthebudgetmainlybecauseoflackof
appointmentofjudges.Thereshouldbe
ahugeinfrastructureupgradationso
thatjusticeisaffordableandquick.”
—SupremeCourtBarAssociation
PresidentVikasSingh

AproposalbythePMOthattheserviceandcadreofanAISprobationerbeallottedbasedonhis
performanceintheshortFoundationCoursewouldrenderthe UPSCmeritlistworthless
By MG Devasahayam
The Nation/ All India Services
RTICLE 312 of the
Constitution provides that
Parliament may by law reg-
ulate the recruitment and
the conditions of service of
persons appointed to the
All India Services (AIS) common to the
Union and states. The Indian Adminis-
trative Service (IAS) and the Indian
Police Service (IPS) were covenanted in
the Constitution by this very Article.
The All India Services Act, 1951,
enacted thereupon, lays down: “Central
Government may, after consultation
with the Governments of the States con-
cerned, make rules for the regulation of
recruitment and the conditions of
service of persons appointed to an all-
A
20 June 4, 2018
Dangerous Tampering?
particular vacancy/vacancies shall be
determined by the central government
in consultation with the Commission
and the state government concerned.
“Commission” here refers to the Union
Public Service Commission (UPSC) con-
stituted under Article 315 of the
Constitution with the mandate (Article
320) to deal with matters relating to
recruitment to civil services and posts.
For this purpose, the UPSC conducts
examinations in three stages—
Preliminary, Mains and Interview. After
India Service.”
The Act also says that Rules under it
shall be laid before Parliament as soon
as possible. They shall be subject to
modifications, whether by way of repeal
or amendment as Parliament may make
on a motion during the session in which
they are so laid. This means that all
Rules to “regulate the recruitment, and
the conditions of service of persons
appointed to the AIS” are subject to the
approval of Parliament.
UPSC ROLE
Section 4(2)(a) of the IAS (Recruit-
ment) Rules, 1954, requires that the
method/methods of recruitment to be
adopted for the purpose of filling up any
REWRITING RULES
Prime Minister Narendra Modi with
officer trainees at a yoga session at
LBSNAA, Mussoorie
UNI

which says that service as well as cadre
would be allotted based on the proba-
tioner’s performance in the short FC
becomes policy.
QUESTIONABLE PROPOSAL
This would render the merit list recom-
mended by the UPSC after the rigid
examinations worthless. Ab initio, this
is an absurdity. The short FC is basically
aimed at instilling a feeling of esprit
de corps among the probationers who
have been appointed after a gruelling
selection process and provide an op-
portunity to establish camaraderie
among them which could prove benefi-
cial in future. Introducing intense com-
petition to im-prove the rank to get into
a more coveted service will vitiate the
atmosphere and lead to mental stress
and tension. This is not conducive to
good governance.
From the haste with which this pro-
posal is being pushed through by the
PMO and DoPT it looks as if there is
something sinister in the move (see
DoPT letter). The PMO wants this to be
implemented this year itself and the
DoPT wants a response within a
this year-long exercise, the UPSC pre-
pares a merit list recommending candi-
dates for appointment to the IAS, IPS
and Central Services and sends it to the
Government of India (GoI) which is
binding. Based on these recommenda-
tions, the cadre-controlling authorities
of the government (department of per-
sonnel & training (DoPT) for the IAS
and ministry of home affairs for the
IPS) issue appointment orders.
All those appointed to these and
Central Services (called probationers)
together do the first three months at the
Lal Bahadur Shastri National Academy
of Administration (LBSNAA),
Mussoorie, as a Foundation Course
(FC). After that, they go to the acade-
mies specific to their service for further
training. IAS probationers stay back at
the LBSNAA to continue their training.
Their cadre is decided before the end of
the first year. In the second year of pro-
bation, all officers go to their respective
states for field training after a brief stint
in Delhi as Assistant Secretaries to GoI.
As of now, this is the arrangement.
All these can change if a proposal
from the Prime Minister's Office (PMO)
THE OFFICIAL MISSIVE
The Department of Personnel & Training's
letter to Abhay Kumar Singh, DDG (Estt &
Training) that mentions the PMO’s desire to
give weightage to the Foundation Course in
cadre allocation
“TheIndianUnionwillgo.Youwillnot
haveaunitedIndiaifyoudonothavea
goodAllIndiaServiceswhichhasinde-
pendencetospeakoutitsadvice...Ifyou
donotadoptthiscourse,Iwilltakethe
serviceswithmeandgo.”
—SardarVallabhbhaiPatelinhisspeechto
theConstituent AssemblyinOctober1949

Jawaharlal Nehru in April 1948 advocat-
ing the formation of an independent
civil service in the functioning of which
“political considerations, either in its
recruitment or in its discipline and con-
trol, are reduced to the minimum, if not
eliminated altogether”. This was strong-
ly opposed by the chief ministers of
states as well as many members of the
Constituent Assembly. In his speech to
this Assembly in October 1949, Patel
had thundered: “The Indian Union will
go. You will not have a united India if
you do not have a good All India Ser-
vices which has independence to speak
out its advice ... If you do not adopt this
course, I will take the services with me
and go.” Sardar Patel had his way and
the AIS was established to be the bul-
wark of post-independence governance.
This was the status till now.
Prime Minister Narendra Modi,
claiming the mantle of the Sardar, will
have the service, which withstood the
test of time during the last seven
decades, commandeered, if he is able to
have his way. The Modi proposal is the
antithesis of Sardar Patel’s idea of hav-
ing an independent and apolitical AIS.
Under Modi’s watch, the PMO has
become a tool for demolishing institu-
tions and instruments of democratic
governance. Aided and abetted by the
Niti Aayog, it is destroying whatever
public character was left with the AIS.
Recently, based on the recommenda-
tions of the Aayog, the PMO directed
the DoPT to prepare a broad outline of
modalities for privatising the IAS by
selecting corporate candidates for
appointment in the ranks of deputy
secretary, director and joint secretary.
Another gem from the PMO is the
new arrangement of IAS probationers
starting their “field training” as
Assistant Secretaries in Delhi instead of
Assistant Commissioners/Collectors in
a district. This is significant because the
USP of the IAS is the valuable grass-
roots experience the officers gain, their
wide contacts with the public and polit-
ical leadership right from their first
posting in the block/tehsil and their
variegated exposure in different assign-
ments. This is a boon for bottom-up,
people-centred policymaking, conceiv-
ing and designing development-cum-
welfare programmes and their effective
and expeditious implementation.
Instead of carrying the grassroots agen-
da upwards, the IAS officers will now
carry them the other way around.
Sustained assault on the legislative,
executive, judicial and economic insti-
tutions by the PMO has considerably
stymied governance. Commandeering
the AIS, its key instrument, could be
the proverbial “last straw on the camel’s
back” that could sink governance.
—The writer is former administra-
tor, Chandigarh Capital Project, and
chief administrator, HUDA
Thefearisthatpliantbureaucratsand
academicswithextraordinarypowerswill
openthedoorsofsought-after-services
topeoplewhoseideologicaloutlook
suitsthecurrentgovernment.
22 June 4, 2018
week. The Parliament, UPSC, state gov-
ernments and AIS aspirants be damned!
If this hasty proposal is implement-
ed, it will theoretically be possible for a
candidate whose rank in the UPSC civil
services examination allows him to get
into only, say, the Indian Ordnance
Factories Service, to climb up to the cov-
eted IAS on the basis of his “perfor-
mance” in the FC. This method could
ruin whatever objectivity the UPSC
examination provides and put pressure
on probationers to appeal to the subjec-
tive assessments of their examiners.
The fear is that pliant bureaucrats
and academics with extraordinary pow-
ers will open the doors of sought-after-
services to people whose ideological out-
look suits the current government, cre-
ating a loyal or “committed” bureaucra-
cy in the long haul. This fear is strength-
ened by the fact that several coaching
centres with close connections to the
RSS have sprung up all over India with
participation by serving and retired
bureaucrats. The new proposal could
serve the interests of these centres.
AGAINST CONSTITUTION
What is being attempted is at logger-
heads with the constitutional scheme of
things. Responding to the grave crisis
created by Partition and the post-British
administrative vacuum, Sardar Vallab-
hbhai Patel wrote to Prime Minister
STEEL FRAME OF GOVERNANCE
IAS officers of the 2014 batch listening to the
PM’s address in New Delhi
The Nation/ All India Services
UNI

Focus/ Sexual Harassment of Women at Workplace Act
24 June 4, 2018
ONSIDERING their
impact on TRP ratings, if
sexual harassment didn’t
exist, advertisers would
have to invent something
like it. Hardly a week goes
by without one celebrity or another
“coming out” as a victim of sexual
harassment. Last month, it was singer-
actress Meesha Shafi. It’s a buzz so com-
pelling that even actor Ranveer Singh
got on the streetcar! A lot of it may well
be true, of course, not least because
these allegations often pertain to
intensely competitive industries with
limited opportunities. Nevertheless, no
one sees any irony in the idea that the
#MeToo movement—originally intended
to empower women—has ended up
incentivising them to retrospectively
redefine themselves as victims. On the
subject of the media circus that then
ensues, the less said the better.
The problem is not that the media
makes a gladiatorial circus out of sexual
harassment; it’s that the law itself incen-
tivises this redefinition. In 2013, the
Sexual Harassment of Women at
Workplace (Prevention, Prohibition and
Redressal) Act, popularly called POSH,
was enacted. The legislation’s intention
is clear enough. All workplaces must
have an Internal Complaints Committee
(ICC) to deal with such allegations.
They are designed as some sort of
combo all-purpose judge, jury and jailor
and have been granted powers normally
reserved for civil courts to discover evi-
dence and enforce the attendance of
witnesses. In culmination, ICCs can
order disciplinary action and compensa-
tion. For good measure, ICCs have been
granted certain powers to enforce inter-
im measures, too.
KANGAROO COURT
We need to have this law in context. The
Indian Penal Code already specifies a
range of offences against women that
sends a man to jail for three years for a
first offence and seven years for a repeat.
These provisions include 354 (outraging
the modesty of a woman), 354A (sexual
harassment), 354B (assault with intent
to disrobe), 354C (voyeurism), 354D
(stalking) and 509 (insulting the mod-
esty of a woman).
C
Inaworldwheremenand
womenarebeingincreasingly
throwntogetherinthe
workplace,societyhastaken
anantagonisticviewofthe
matinggame.Whatisneeded
isempathy,notjudgement
By Ranjeev C Dubey
RULES OF ENGAGEMENT
Cultural constructs surrounding the
behaviour of colleagues belonging
to opposite sexes need to be reset
and reimagined
POSH Retribution

Civil courts are already empowered
to grant compensation in tort law. What
this law does is create a new kind of civil
court within the workplace and confers
on untrained laymen the powers of a
court. This is alarming. It is hard
enough to get justice from a regular
court with an experienced judge: imag-
ine trying to get it from a kangaroo
court of corporate czarinas!
But what is objectionable about
POSH is the “attitude” that it promotes.
It’s a problem of cultures as much as of
interpretation of interpersonal human
behaviour. All POSH expects of us is
that we should set up a supplementary
mechanism to achieve a quicker cruci-
fixion. If a grievance ends up as a corpo-
rate and media circus, well, we complied
with the letter of the law, so what more
do you want? Surely, this cannot be a
good answer.
To truly address this, it is critical to
come to terms with the true nature of
the problem. This has several compo-
nents. At the very outset, we have the
problem of interpretation of behaviour.
All employees shine up to their bosses or
try and get along famously with their
colleagues to gain professional advan-
tage. It is easy for the other party to
interpret this as an invitation. When it
comes to the mating game, one way or
another, almost everyone is “trying their
luck”. Women have it harder mainly for
statistical reasons. Only about 15 per-
cent men are gay and it still being a
crime, most of them are truly under-
ground. In the ordinary course, I would
not interpret any guy’s behaviour as an
invitation to a sleepover. With 85 per-
cent potentially straight men in play at
work, women run about six times as
much “risk” as men!
That does not mean that the mating
call of the male shark is always unwel-
come at work. At a Bombay UBS
Transformance seminar in March 2018,
the audience was polled. How many
women had ever propositioned anyone?
Eight out of 40 said they had. Perhaps
there were more. How many men had
never propositioned anyone? No one
raised their hands. How many men and
women never wanted to be proposi-
tioned? No hands went up. It’s obvious.
Everyone wants to be in the mating
game. It’s a game of whom. The real
problem is that the mating game has no
agreed rules. It’s easy to get it wrong.
WORK-LIFE BALANCE
Here is the central rub. There was a
time when people had this exotic thing
called Work-Life Balance. The mobile
phone threatened it with instant mes-
saging. Then the internet eroded it in
the 1990s when BlackBerry ushered in
the era of emails on handheld phones.
WhatsApp has now performed its last
rites. Today, everyone works 24/7 and
there is little social life outside the work-
space. If you want down time, you ask
an office colleague to step out for a
AllPOSHexpectsofusisthatweshould
setupasupplementarymechanismto
achieveaquickercrucifixion.Ifa
grievanceendsupasamediacircus,well,
wecompliedwiththeletterofthelaw.
WORK HARD, PARTY HARDER
Today everyone works 24/7 and ends up shar-
ing drinks and leisure hours with workmates
highereducationplus.com
UNI

Focus/ Sexual Harassment of Women at Workplace Act
26 June 4, 2018
drink. Men and women are being
thrown together as never before, yet
society is taking an increasingly antago-
nistic view of the mating game. Thus,
while interaction magnifies, the rules by
which it may be conducted progressively
narrow. To add to the confusion, the
matchmaking aunt is extinct, too.
Matrimonial matches win catches at
work! Wouldn’t you then expect that
familiarity breeds attempt?
And what form should we expect
such attempts to take? The cultural
scripting that defined this business of
wooing decades back was clear: men
should woo aggressively and women
should succumb reluctantly. A million
women around the country still seek out
movies featuring the single biggest per-
sonification of this cultural construct:
Shammi Kapoor (who else!). They thor-
oughly enjoy what appears to be a very
abrasive, and physical, form of conquest.
Anybody who came of age in the 1960s
and still has a libido knocking on his
door would think this is the way to be.
Has much changed in the way heroes
woo their girls in the movies now?
The thing to understand is that, cul-
tural constructs apart, a range of genetic
compulsions drive behaviour. Very
briefly, every species seeks immortality
by passing down its genes. Extinction
stalks those who fail to mate. This is
why one in seven people worldwide have
a bit of Genghis Khan in them. Not for
nothing did Abraham Maslow put sexu-
al union as the most basic of his needs.
Sigmund Freud did better, putting it at
the heart of the human mind!
To try to understand something does
not necessarily mean to become an apol-
ogist for it. The truth is that a lot of
work spaces exhibit a wide range of
mating displays ranging from entirely
physical enhancements like lip-
stick and beard trims through
supplementary adornment such
as designer wear and accessories
to wealth displays like cars and
mobiles. Norms of social behav-
iour that expand contact,
enhance mating displays but
repress engagement cannot but
be a cauldron of unspent raging
passions that occasionally boil
over. The point here is that sex-
ual harassment, for want of a
better word, has to be seen in its
overall context.
In the irrationality that
is POSH, there remains no
space for recognition of the idea
that biologically, genetically,
indeed, as central to the evolu-
tionary impulse across species,
procreation and mating lies at
the heart of all animal behav-
iour. Suppressing it in specific
contexts is a process we call
“socialisation”. As people may
not truly understand the
rules of engagement in office, we need
merely recognise that the office environ-
ment requires another kind of socialisa-
tion training.
Bluntly put, I do not believe corpo-
rate best practice is achieved by setting
up a committee empowered to burn
witches at the stake. We need empathy
and behavioural training, not judge-
ment. Instead, POSH has restructured
our world into one where any proposal
you make to a lady results in either a
great and memorable relationship or a
great tryst with criminal law. In the face
of a law that fights instinct using the
crudest of tools, retribution cannot kill
the brinkmanship any more than AIDS
killed promiscuity.
—The writer is managing partner
of Gurgaon-based corporate
law firm N South
Normsofsocialbehaviourthat
expandcontact,enhancemating
displaysbutrepressengagementcannot
butbeacauldronofunspentraging
passionsthatoccasionallyboilover.
PROBLEM OF EVIL
(Clockwise from top left) Meesha Shafi is
the latest celebrity in a harassment row;
psychologists Sigmund Freud and
Abraham Maslow both prioritised the libido

28 June 4, 2018
HE Supreme Court re-
cently directed the heads
of all High Courts to set
up anti-sexual harass-
ment committees in all
courts across the country
within two months. This was in accor-
dance with a law which came into effect
in 2013.
A bench comprising Chief Justice
Dipak Misra and Justices AM Khan-
wilkar and DY Chandrachud also asked
the registrar generals of High Courts to
file a report on whether its orders had
been complied with by July 15.
The bench said: “As far as the ques-
tion of constitution of such commi-
ttee(s) in other high courts/district
courts throughout the country is con-
cerned, the chief justices of each of the
high courts are requested to constitute
the committees in high courts as well as
the district courts, if not already consti-
tuted, within a span of two months.”
The directions came after a petition
was filed by a woman advocate who had
alleged that she was assaulted by some
lawyers observing a strike at the Tis
Hazari courts in Delhi. The Court tried
to mediate between the woman and bar
members of the Tis Hazari district
courts. FIRs were filed by her and an
accused lawyer in this case.
VISHAKA GUIDELINES
The concept of protection of women
from sexual harassment in the
workplace originated from the Vishaka
vs State of Rajasthan case. The Act came
into force in 2013. As per the directions
of the Supreme Court, all High Courts
and district courts should constitute two
committees—one on the administrative
side which will be meant for women
employees of the High Courts and dis-
trict courts and the second for lady
lawyers practising there.
In my opinion, this committee
should also include representatives of
the respective bar council and bar asso-
ciation so that it can lead to more effec-
tive working of the panel and fulfil the
purpose of the Act.
In my 48 years of practice in the
Nagpur High Court and district courts,
I have not come across any incident
of harassment.
However, during my practice, such
cases did come to light and we had no
specific solution as it was before the
judgment of Vishaka vs State of
Rajasthan. There was one such case I
couldn’t forget. One day, a young pri-
mary schoolteacher came to my office
with a problem—every month, she was
Column/ Anti-sexual Harassment Committees Kumkum Sirpurkar
Keeping a Watch
Theapexcourt’sdirectivetohighcourtstoformsuchpanels
willgoalongwayinmakingwomenworkingtherefeelsafe
LEGAL ARMOUR
Lady lawyers need
specific provisions under
the sexual harassment Act
for their protection
Anil Shakya
T

An NUJS alumna who had interned
under former Supreme Court Justice
AK Ganguly alleged in 2013 that he
had sexually harassed her. The SC
formed a committee to probe this,
which said its hands were tied as
Justice Ganguly had retired and the
intern was not on the SC rolls. Justice
Ganguly continued as head of the West
Bengal Human Rights Commission.
A woman additional district and ses-
sions judge resigned in 2014, alleging
that Justice SK Gangele of the MP
High Court had transferred her to a
remote location after she spurned his
sexual advances. After she sent a com-
plaint to the SC, CJI RM Lodha set up
a committee to probe it. The committee
cleared him in 2015, saying that her
account was riddled with “inconsisten-
cies and contradictions”.
Senior advocate Indira Jaising in
2016 said that she was harassed in the
corridors of the SC. “It happened a
couple of years ago…. It was another
senior male lawyer. I did not make any
complaint, but I stopped him then and
there and confronted him about it,” she
reportedly said.
—Compiled by Kuwar Singh
being transferred from one school to
another, which were under the zilla
parishad. She lived with her sister as she
had no parents. After a lot of question-
ing, it was revealed that the headmaster
of the school wanted some favours from
her and as she had refused, he trans-
ferred her from one school to another in
remote places, where it was difficult for
her to live. Each transfer was at the
month-end.
I filed a petition in the High Court
stating all the facts and the Court direct-
ed the zilla parishad to immediately
constitute a committee. The petition
was kept pending. Accordingly, a com-
mittee was constituted and ultimately,
her problem was solved.
WOMEN HESITATE
This incident demonstrates the impor-
tance of such committees in offices. I
have also observed that women are
reluctant to approach the committee
with their problems as they fear that
firstly, they will be defamed and second-
ly, it may affect their job.
Hence, it is not only important to
constitute such committees under the
Sexual Harassment of Women at
Workplace (Prevention, Prohibition and
Redressal) Act but also to sensitise
employees and make them aware of the
law. I have observed that most of the
time, women are not aware of the law.
It is also important that nobody
should try to take advantage of the Act
and settle personal scores. I remember a
case before the Sexual Harassment
Committee in an office in Nagpur where
a lady officer wanted to marry a certain
male officer. However, despite her ear-
nestness, he refused. She filed a case
against him before the Committee.
The Act was primarily designed for
an employer-employee relationship. It is
widely worded and says that a woman at
the workplace needs complete protec-
tion from sexual harassment, overt or
subtle in any possible form, and can be
used for the protection of women in
court too.
The following shall be the target
group:
Lady lawyers practising independently
Lady lawyers practising as juniors in
offices of established lawyers
Female interns interning with practis-
ing lawyers and judges and female
administrative staff working with prac-
tising lawyers in the capacity of attor-
neys, clerks, secretaries, stenographers,
typists, accountants, etc
Female lawyers, interns, administra-
tive and multitasking staff in solicitor
and lawyer firms functioning in the non-
litigation stream.
Rules should also be framed under
the Act so as to specifically include lady
lawyers. From a reading of the Act, it
seems that lady lawyers are not an
employee nor are in any employment.
There should also be a definition of
these terms—employee, employer, work-
place and respondent—so as to give pro-
tection to everyone as per the direction
of the Supreme Court.
The constitution of such committees
is necessary in all offices and specially in
courts. It is important for members of
the committee to be vigilant and strike a
balance so that the purpose of the Act
is achieved.
—The writer is a senior advocate and
wife of Justice VS Sirpurkar, a former
Supreme Court judge
Thedirectiontosetupanti-sexualharassmentpanelswasgivenbyaSupremeCourt
benchcomprisingCJIDipakMisra(left)andJusticesAMKhanwilkar(middle)andDY
Chandrachudinresponsetoapetitionfiledbyawomanadvocateallegingharassment.
Supremepower

Spotlight/ Faulty Construction
30 June 4, 2018
CCIDENTS are often wit-
nessed during construc-
tion and there seems no
end to it. Every now and
then, we come across a
gruesome accident, the
most recent being the Varanasi girders
collapse at a flyover construction site in
which 19 people were killed. The sad
part is that most of these accidents are
similar in nature. Yet, we fail to learn
lessons. No wonder construction is the
second most dangerous work, next only
to mining.
With technology in mining improving
day by day and construction still
employing traditional and outdated
methods, this industry is poised to take
on the dubious distinction of being the
most fatal industry. Although the official
record in no way points to the serious-
ness of the problem, a recent study at
IIT-Delhi based on statistics of the
A Dangerous
Workplace!
Thecollapseofgirdersataflyoverconstructionsitein
VaranasirevealsthatmostconstructioninIndiadoesnot
adheretotheBuildingandOtherConstructionWorkers’
Act,anddesignandimplementationoftemporary
structuresareoftenlefttoforemen,notengineers
By KN Jha
SHAMEFUL
MISHAP: Two
beams of an
under-construc-
tion flyover in
Varanasi
Cantonment area
collapsed recently
Inadequate bracing/restraining of girders
Structures are not guarded
No safety nets
Construction area
was not roped off
A
Source: zeenews.india.com

Indian construction sector from 2008 to
2012 indicates that the number of peo-
ple killed annually was anywhere
between 11,614 to 22,080.
While the lower estimate is based on
the cement consumption, the upper
range is based on the number of con-
struction workers. The number of fatal
accidents based on cement consumption
data seems conservative because some
construction projects may have activities
where cement consumption may not be
considerable, for example, excavation of
lakes, construction of bituminous road,
pipe laying, roofing work, and so on.
Even if one considers the data to be on
the lower side, it results in an alarming
figure of 38 (11,614/300 working days in
a year) fatal accidents per day. In other
words, the fatality rate (fatal acci-
dents/1,000 workers) in the Indian con-
struction sector works out to be 0.22
which is way above those in countries
such as the UK (0.02), Singapore
(0.05), and Taiwan (0.12) during the
same period.
Although the Building and Other
Construction (Regulation of
Employment and Conditions of Service)
Workers’ Act, 1996, popularly known as
BOCW Act 1996, stipulates certain con-
ditions, it is anybody’s guess regarding
its implementation. Let’s see the rules:
Regulation No. 41 (Overhead
Protection): The employer shall ensure,
at the building and other construction
work, that any area exposed to risk of
falling materials, articles or objects is
roped off or cordoned off or otherwise
suitably guarded from inadvertent entry
of persons other than building workers
at work in such area.
Regulation No. 42 (slipping, tipping,
cutting, drowning and falling haz-
ards): Whenever there is a possibility of
falling of any material, equipment at a
construction site relating to a building
or other construction work, adequate
and suitable safety net shall be provided
by the employer in accordance with the
national standards.
Regulation No. 49 (Stability of struc-
tures): The employer shall ensure that
no wall, chimney or other structure or
part of a structure is left unguarded in
such a condition that it may fall, col-
lapse or weaken due to wind pressure,
vibration or due to any other reason at
the site of a building or other construc-
tion work.
Regulation No. 101 (Concrete panels
and slabs): The employer shall ensure
at the construction site of a building or
other work that concrete panels are ade-
quately braced in their final positions
and such bracing shall remain in such
position until such panels are adequate-
ly supported by other parts of the con-
struction for which such panels are
going to be used.
At the root of most of these accidents
lies our neglect of temporary or enabling
structures. These structures are used in
the construction of permanent
SAFETY CONCERNS
Work underway at a construction site
Attherootoftheseaccidentsliesour
neglectoftemporaryorenabling
structures.Thesestructuresare
neededtotaketheloadtillthetimethe
permanentonesbecomeself-sufficient.
Anil Shakya

ers are used which are usually top heavy
and bottom light and not perfectly sym-
metric. This results in shifting of the
centre of gravity. Also, such girders are
pre-stressed. The pre-stressing is car-
ried out in two stages for precast gird-
ers. Due to the first stage pre-stressing,
the bearing area of the girder gets even
further reduced. Hence, the girder
becomes more and more unstable and
requires external support in the form of
a restraint. The instability is more pro-
nounced till the time girders are stit-
ched together in lateral direction. Till
this time, girders should be adequately
supported to resist the lateral loads du-
ring construction. Girders may collapse
even with a small load caused either
due to vibration or accidental hitting by
a crane during the construction work.
Adherence to the provisions of the
BOCW Act becomes all the more impor-
tant under such conditions, besides
proper restraining arrangement. It may
be mentioned that restraining arrange-
ments are needed only till the time gird-
ers are stitched together. They are not
very costly as they can be fabricated
even using scrap structural steel.
Although the exact reasons for the
Varanasi accident will be known only
after the detailed investigation is com-
pleted and reported, it is hoped that var-
ious stakeholders will learn lessons from
it and such unfortunate accidents are
not repeated in the future. In a civilised
society, there is no place for such acci-
dents at all.
—The writer is an Associate Professor
at IIT-Delhi who earlier worked for
L&T and is an expert in construction
engineering and management
32 June 4, 2018
structures and are supposed to take the
load till the time the permanent ones
become self-sufficient. Some examples
of temporary structures are formwork
and scaffolding in the case of reinforced
cement concrete construction, dia-
phragm wall in the case of deep excava-
tion and sheet piles in the case of
bridge construction.
A
ccording to a research study, in
building construction, 60 per-
cent failure is due to formwork
collapse, shoring collapse, inadequate
shoring and lateral bracing, 8 percent
due to premature removal of shore and
18 percent due to faulty materials. In
most of the cases, the cost, time, and
quality are also influenced by the man-
ner in which the temporary structures
have been executed at the site. Needless
to say, the “temporary structure” does
not deserve “temporary” treatment.
Despite the obvious importance of tem-
porary structures, lack of design or
improper design of these structures is
very common. Most of the time, the
design and implementation of these
structures are left to foremen, and the
Evenforimportantandcriticalstructures,
thedesignisnotvettedbyathird
partyatall.Wheredesignexists,the
implementationisnotas
perthedesignstipulationsatall.
engineers rarely pay attention.
Even for important and critical struc-
tures, the design is not vetted by a third
party. Where design exists, the imple-
mentation is not as per design.
Makeshift formwork arrangement
with non-standard formwork compo-
nents are in wide use. Shutter plates and
reinforcements are misused for provid-
ing access and diagonal bracings respec-
tively. Access to worksite and ladders are
scary, to say the least. Our construction
sites are ideal examples of how not to do
things rather than providing a lesson on
good practices.
Similar to the Varanasi incident are
other accidents that have taken place in
the recent past in UP—in Faizabad,
Lucknow, Agra-Bharatpur—in flyover
and bridge construction. In such con-
struction, either precast girders (as in
the case of Varanasi) or cast in situ gird-
CALLOUS NEGLECT
Firefighters and rescue workers
search for victims at the site of an
under-construction flyover after it
collapsed in Kolkata in 2016
Spotlight/ Faulty Construction
UNI

originally belonged to Patna and started
life as a scrap dealer. Unlike the licence
permit raj, powers had been decentra-
lised to state governments and Vedanta
was able to convince the then Maha-
rashtra government to allow it to set up
an aluminium smelter in Ratnagiri on
the Konkan coast with a capacity of
6,000 tonnes per annum. Five hundred
acres of land was also allotted to the
company for the purpose.
Even as there were massive local
protests, Sterlite Industries, set up by
Vedanta for the purpose, was deter-
mined to see the project through. But
protests escalated as locals realised that
once the smelter was in operation, it
would release sulphur dioxide and other
pollutants that would destroy the flora
and fauna of the ecologically sensitive
and fragile area. The locals also realised
that the jetty proposed as part of the
project (to receive imported raw materi-
als from Australia) would advance the
MassiveprotestsinTuticorinaretheculminationofenvironmental
damagebyapollutingcompanywhichreceivedclearancesfrom
thegovernmentandvariousagencieswithoutduediligence
By Kingshuk Nag
Environment/ Sterlite Industry
OLITICS is the art of the
possible, goes the old say-
ing. But it also represents
the naked pursuit of power
without any moral com-
punctions, making the
impossible possible till a strong counter-
reaction kicks in. When 13 people fell to
the bullets of police forces recently in
Tamil Nadu’s Thoothukudi (better
P
Exploding
Discontent
known by its anglicised name of
Tuticorin), it was the consequence of
actions in 1994 by then Chief Minister
J Jayalalithaa.
After liberalisation in 1991, many
multinationals came knocking to India
to take advantage of this opening up.
One of them was a company called
Vedanta that was based out of London,
but promoted by Anil Agarwal who
VICIOUS CRACKDOWN
Cops lathicharge protesters in
Tuticorin on May 22
UNI

ministry of environment was equally lax
and negligent. In 1995, it apparently
gave environmental clearance for the
project without an Environment Impact
Assessment (EIA) report and the Tamil
Nadu Pollution Control Board (TNPCB)
gave its “consent for establishment”
without the EIA.
A year earlier, the TNPCB gave a no-
objection certificate (NOC) for the proj-
ect, provided that it would be 25 km or
more inland from the Gulf of Mannar.
Moreover, it would have to set up a
green belt of 25 m around the periphery
of the project. It seems that Sterlite fol-
lowed these provisions only by default-
ing on them.
The Gulf of Mannar is the first bios-
phere reserve of the country. Located
between Tuticorin and Rameshwaram
in the Bay of Bengal, there are 21
islands. The area is rich in flora and
fauna with 36,000 species, including
coral reef, pearl oysters, white algae, reef
fish and shrimps and lobsters. In other
words, an aluminium smelter in Tuti-
corin is potentially more dangerous
than in Ratnagiri.
Complaints from the plant staff that
they had a choking sensation and bouts
of coughing started pouring in shortly
after it went into operation. The
Madras High Court, considering a PIL
in November 1998, came across a
report of the National Environmental
Engineering Research Institute
(NEERI) that showed that the opera-
tions of the plant contaminated the
ground water with arsenic, lead, copper
and aluminium. Moreover, the compa-
ny was churning out products that it
was not supposed to. It also noted that
the plant was only 14 km from the Gulf
of Mannar and there was no green belt
around it. NEERI was asked to do a
fresh report and strangely enough,
within a month reported that all was
hunky-dory. NEERI also recommended
an EIA, which should have been com-
pleted before the plant commenced
production! The report was completed
many years later in 2003!
Meanwhile, a series of accidents
started taking place: there were cases of
gas leaks and acid water run-offs in
nearby localities after rains. But the
Meanwhile,aseriesofaccidentsstarted
takingplace:therewerecasesofgasleaks
andacidwaterrun-offsinnearbylocalities
afterrains.Butthecompanywasadamant
aboutincreasingitscapacity.
34 June 4, 2018
sea into the surrounding areas, cutting
the coastline. A protest by a 30,000-
strong crowd in December 1993, which
destroyed some buildings being constr-
ucted, put Sterlite on notice. The district
collector of Ratnagiri then ordered a
halt in the construction of the project.
Now Agarwal started scouring for
better climes. This wasn’t too difficult.
Unmindful of the fact that Sterlite had
been pushed out of Maharashtra,
Jayalalithaa thought nothing of offering
the company a slot in Tamil Nadu in
Tuticorin in the south of the state. Had
she paused to analyse the exact prob-
lems the project ran into in Maha-
rashtra, she would have had the com-
mon sense to not allocate a site in the
Gulf of Mannar where the ecosystem is
even more fragile than in the Arabian
Sea in Ratnagiri. But those were the
heydays of liberalisation and it was fash-
ionable to berate the environmental
lobby with the argument that it was
anti-development. Moreover, it was the
first term of Jayalalithaa and she was
keen to be seen as a go-getter.
She was not the only guilty one; the
Environment/ Sterlite Industry
BLIND ENDORSEMENT
Despite it having been pushed out of
Ratnagiri, Sterlite was given a spot in Tuticorin
wikipedia.org

FRIENDS IN HIGH PLACES
(Clockwise from above left) Incumbent Tamil
Nadu CM EK Palaniswami, former CM J
Jayalalithaa and Union minister Maneka Gandhi
have all given their blessings to Vedanta and its
chairman Anil Agarwal (left) at various points
the company and asked it to pay a fine
of `100 crore for polluting the envi-
ronment from 1997-2012. But it
refused to close down the plant as its
produce is used for the defence, elec-
tricity, automobile and other indus-
tries. Moreover 1,300 people were
employed in the plant.
Five years later, in 2018, the capaci-
ty of the plant has increased dramati-
cally to 4,00,000 tonnes per annum.
The company now proposes to further
increase it to 8,00,000 tonnes per
annum. This has the locals up in
protest and in late March this year,
they had a massive show of strength
demanding that the existing plant be
shut and a new one not be allowed to
come up (the expanded unit will come
up at a separate location close by).
The agitation has continued ever
since and on its 100th day, a huge rally
of protesters was out on the road.
According to the police, the agitators
turned violent and in consequent
police firing, 13 people died. Tamil
Nadu Chief Minister EK Palaniswami,
ironically from Jayalalithaa’s party, is
defending the police action, averring
that the opposing political parties are
at work.
Whatever be the truth, for analysts,
this is a classic instance of development
versus environment with the laws
skewed against environment. And even
then, environment laws are observed in
breach or circumvented by post facto
approvals. Now, even as the plant is
closed, there are apprehensions that
copper prices will rise and gainful
employment for workers in the plant
and those involved in allied activities
will be hit.
company was adamant about increasing
its capacity. The Tamil Nadu govern-
ment allowed Sterlite to increase pro-
duction to 70,000 tonnes per annum
from the existing 40,000 tonnes. But
the company was producing much more.
A TNPCB report suggested in
November 2004 that Sterlite was churn-
ing out a capacity of 1,64,000 tonnes
per annum. But in 2005, the ministry of
environment and forests, instead of sug-
gesting action, advised the state govern-
ment to regularise the excess capacity.
Cut to 2013. On March 23 that
year, there was a massive gas leak from
the factory. Though nobody was killed,
many were affected and even miscar-
riages were reported. In April of the
same year, the Supreme Court indicted
UNI
UNI

36 June 4, 2018
RECENT Supreme Court
directive to the centre to
implement the scheme of
videography in crime
investigation seems to
have set the cat among
the pigeons. In fact, the Supreme Court
has gone into great detail to examine
and give directions to include videogra-
phy in the process of investigation to
upgrade and improve the criminal jus-
tice system. The case in reference,
Shaphi Mohammad versus the
Government of Himachal Pradesh, has
become an opportunity to improve and
revamp outmoded practices of the entire
trial and justice system.
In my police career—particularly as
DCP Crime in Delhi during the 1980s,
DIG in the CBI and DGP in two states
during the 2000s—I have participated
and closely monitored the process of
police modernisation. This includes the
use of forensic and scientific techniques
in part and videography as tools for
more accurate documentation. For
example, videography of the post-
mortem to the entire process of autopsy
by forensic experts is legally required,
but it has never been fully implemented.
Videography of activities in a police
station, including the presence and
examination of witnesses through CCTV
cameras, especially while they and sus-
pects are being dealt with is important.
It is needed to protect their rights and
for making them truthful and authentic.
The Supreme Court had given direc-
tion for the appointment of a committee
consisting of experts. This included the
heads of various agencies—the central
investigating agency such as the CBI,
state police, Central Forensic Lab—and
a senior legal professional besides the
representative of the home ministry to
implement this scheme.
In order to ensure implementation
of the project, the Supreme Court has
directed that it be done in four stages.
The first stage is meant for cities with
a population of over 50 lakh and at
least one district of every remaining
state/UT.
At least five police stations have been
mandated to be identified in selected
districts for implementation of the
scheme as a pilot project.
My Space/ Videography in Investigation Amod K Kanth
Filming Evidence
ASupremeCourtdirectivetoincludevideographyincrimeprobeswillhelpupgradethe
criminaljusticesystem,butimplementationiseasiersaidthandone
Photos: UNI
A

India Legal 04 June 2018

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