India Legal 05 February 2018

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AMUL
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WARThecompanyrecently
wenttocourtagainstfive
manufacturersusingits
nametosellproducts
rangingfrombiscuitsto
underwear.Theinstant
recognitionthebrand
evokesmakesitaprime
targetforimitators

N the eve of India’s 68th Republic Day
anniversary, I chanced upon some of
the most stirring phrases of leaders
who had fought for the nation’s
Independence, many of whom lived
on to become members of the new country’s
Constituent Assembly. The most striking ones
are those most of us memorised during our
formative years in school. But they are worth
repeating in the same spirit as we repeat birth-
day, Christmas and Diwali jingles and good
wishes year after year:
“Long years ago we made a tryst with destiny
and now the time comes when we shall redeem
our pledge. ... At the stroke of the midnight hour,
when the world sleeps, India will awake to life
and freedom.” —Jawaharlal Nehru. “The sanctity
of law can be maintained only so long as it is the
expression of the will of the people.”—Bhagat
Singh. “Every Indian should now forget that he
is a Rajput, a Sikh or a Jat. He must remember
that he is an Indian.”—Sardar Vallabhbhai Patel.
“We believe in peace and peaceful development,
not only for ourselves but for people all over the
world.”—Lal Bahadur Shastri. “If yet your blood
does not rage, then it is water that flows in your
veins. For what is the flush of youth, if it is not
of service to the motherland.” —Chandra
Shekhar Azad.
I have an admission to make. While I am
moved by these inspiring words of India’s great-
est sons and daughters, I prize one poem above
all. It is my personal national anthem written by
the bard Iqbal. “Sare jahan se achha Hindustan
hamara/Hum bubulein hain iske/Yeh Gulsitan
hamara….Mazhab nahin sikhaata/Aapas men
bair rakhna/Hindi hain hum watan hai/Hin-
dustan Hamara.” Beatific sentiments…(We
Hindis—not Hindus—but Hindis, the diverse
people of Hindustan live in the greatest nation
on earth. We are taught to love all religions.)
Iqbal also intones: “Roma, Mishar, and
Yunan/ Sab mit gaye jahan se’Kuschh baat hai ki
hast mitati nahin hamaari/ Sadiyon raha hai
dushman daur-e-jaman hamara.” (Rome, Egypt,
and Greek civilisations have disappeared from
the face of the earth. There is something in us
that sustains us forever; for centuries, though
our enemy has been at our doorstep).”
Iqbal wrote this before India was given her
grand Constitution. I believe he was convinced
that India’s indomitable spirit preserved her
through the ages. I also believe that it is this in-
effable spirit that gave birth to the Constitution.
This document provides institutional protection
to the Republic in which the people are sover-
eign, are guaranteed certain basic rights, and are
governed according to their will and the
supremacy of the Rule of Law.
But many things have changed since January
26, 1950, when our Founding Fathers gifted us
this Republic. Have we been able to keep our
republic? While we have established our national
government and fundamental laws, we need to
examine whether the separation of powers bet-
ween the Executive, Judiciary and Legislature
operates as it should. This is a critical system
of checks and balances that ensures the sover-
eignty of the people and accountability of
the government.
When our Founding Fathers adopted the par-
liamentary Westminster model of England, it
may have been suitable at the time. But today, as
the government has spread its tentacles into
every aspect of our personal lives, the challenge
is to keep Executive excesses in check. It is not
possible when the Legislature—our Parliament—
is a slavish extension of the Executive. The min-
ister who is in the Executive branch cannot be
expected to police himself when he is simultane-
ously a legislator and also in charge of the civil
services. Both, under the doctrine of separation
THROUGH MY
LOOKING GLASS Inderjit Badhwar
Letter from the Editor
O
4 February 5, 2018

of powers, are expected to be watchdogs over the
Executive in order to ensure that it carries out
legislative mandates and does not exceed the
authority given to it by Parliament.
It is also incongruous when, under an archaic
British law still in the statute books, a state gov-
ernment can order the dropping of criminal
charges against its legislators and supporters
stemming from violations when its members
were not in elected office.
We seriously need to look at constitutional
changes that will guarantee the independence of
legislators as powerful guardians against fraud,
waste and corruption. How we can do that is
another story. For the time being, the judiciary
seems to be playing that role.
Social tension, internecine hatred and vio-
lence, and bigoted resistance to free expression
and lifestyles are mounting. India’s venerable
Supreme Court has mostly risen above politics.
It has tried to grapple with Executive excesses
such as the misuse of Article 356 and assaults on
the right to privacy.
But in this surcharged atmosphere of the
politicisation of the steel frame of Indian gover-
nance, exemplified by politicians calling for the
impeachment of a sitting chief justice, will India
as a nation rise above its baser instincts on the
strength of the common sense and goodwill of
its people?
M
y hunch is that India survives the
worst and emerges stronger. After our
bloody Partition, what emerged was a
stronger India, aflame with poverty and exploita-
tion, yet led by wise men and women who kept
anarchy and class warfare at bay with minimal
repression. There were fa-mines in the early
years, caste discrimination, misogyny, patriar-
chal hegemony, mistreatment of widows, out-
bursts of religious savagery...but the idea of a
constitutional India guided by principles of lib-
erty and the Rule of Law held.
Iqbal Sahib’s idea of Sare Jahan Se Achha will
probably hold and survive. But men and women
of wisdom will have to constantly re-examine the
Constitution and model it to suit India’s chang-
ing political and social priorities. They will have
to focus on empowering people so that the Exe-
cutive branch is kept in check through a more
innovative system of the separation of powers.
We need more than just words and road
shows to move this nation into its manifest des-
tiny as envisaged by those who led us into our
freedom. I just drove through central and west
Uttar Pradesh, often promoted as a state (India’s
most populous) in which multinationals and
local entrepreneurs are rushing in to invest.
Roads like bomb craters. Abandoned high-rise
buildings on the fringes of cities. Twenty-hour
power cuts with most villages barely even boast-
ing of a single light bulb. Invisible infrastructure.
Unemployed, angry youth. Distressed farmers.
Distress sales alongside food inflation. Closed
small industries. Robberies and murders rising.
(Read about a farmer crushed to death under a
tractor in his own field by loan sharks and recov-
ery agents) ….
…..then switched on the telly in Delhi and
relaxed to the news on NDTV with Vikram
Chandra and a suave reporter and FICCI types
with their pseudo Brit accents extolling “shining
India” as the world’s greatest investment desti-
nation, and PM Modi’s debut in snow-covered
ski resort Davos, hyped as an earth-shattering
event, while the bottom scroll on the TV screen
talked about the raging senseless violence of cen-
sorship and communal hatred over the release of
the mythological film Padmaavat…
I felt like Alice walking through the looking
glass. Which world am I living in on this
Republic Day? A PR dream nourished by a
fawning, overfed media, or a reality show of an
uncaring political burlesque?
| INDIA LEGAL | February 5, 2018 5
Weneedmorethan
justwordsandroad
showstomovethis
nationintoitsmanifest
destinyasenvisagedby
thosewholedusinto
ourfreedom.Iqbal’s
ideaofSareJahanSe
Achha willprobably
holdandsurvive.But
menandwomenwill
havetoconstantly
re-examineandmodel
theConstitutionto
suitIndia’schanging
politicalandsocial
priorities.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UNI

ContentsVOLUME XI ISSUE 12
FEBRUARY5,2018
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Technical Executive Anubhav Tyagi
6 February 5, 2018
Amul Goes to War
The dairy cooperative tries to protect its market reputation and brand image by going to
court against infringers of its popular trademark
LEAD
MYSPACE
12
Institution in Peril
A political party looks for support to impeach CJI Dipak Misra. Justice N Chapalgaonkar says
it will affect the judiciary’s credibility and should be weighed against any likely electoral gain
16
INVESTIGATION
Closure Unlikely
The apex court’s decision to constitute an SIT to re-examine 186 closed cases in the anti-Sikh
riots of 1984 has rekindled hope among the victims, but will it lead to any breakthrough?
18

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................21
International Briefs..........47
Media Watch ..................48
Satire ..............................50
Cover Illustration & Design:
ANTHONY LAWRENCE
Written in the Stars
Will Rajinikanth and Kamal Haasan be able to match the money
power and organisational strength of the AIADMK and the DMK?
STATES
33
My Brother, Sreejiv
The young man’s death in 2014 has brought into sharp focus the
controversial issue of Kerala’s many custodial deaths
22
HUMANRIGHTS
Clear-Cut Transgression
The fact that there is a no comprehensive and uniform definition
of an “office of profit” led to disqualification of 20 AAP MLAs
28
POLITICS
DEFENCE
With India under rising threat,
the need of the hour is a
national security policy under a
new ministry and greater
centre-state co-ordination
39
Lawful Crusade
Under increasing attack in Madhya Pradesh, the Catholic Association has moved
the high court, seeking protection for its educational institutions
36
Half-Baked Legislation
The Transgender Bill has too many lacunae and does not protect
the rights of the third gender, be it jobs or fundamental freedoms
26
ACTS&BILLS
Indians are
increasingly putting
money in real estate
in the Emirates,
which gives them
the benefit of
becoming NRIs to
save on taxes
42Second
Homes
GLOBALTRENDS
A recent Bloomberg report has
revealed how a secret unit of the social
media website helped create these to
influence elections for governments
around the world
44Facebook’s
Troll Armies
For a Security
Solution

8 February 5, 2018
“
RINGSIDE
“The commission
has always been
acting neutrally,
based on objective
facts. This is why
the EC has earned
a name globally....
Whenever you are
acting as a referee
in a match... these
things (accusations)
are bound to
be there.”
—CEC OP Rawat on
doubts cast over the
poll panel’s integrity
“God had some-
thing in mind, that
is why he gave us 67
seats. He knew 20
MLAs would be
disqualified after
three years... (The
disqualification is)
Tughlaqshahi of the
worst order.”
—Delhi chief minis-
ter Arvind Kejriwal
after 20 MLAs of the
Aam Aadmi Party
were disqualified by
the president
“Come to India if
you want wealth
and wellness. Come
to India if you want
health and whole-
ness. Come to India
if you want prosper-
ity with peace...
You will always
be welcome.”
—PM Modi making
a strong case for
India before
investors while
attending the World
Economic Forum
at Davos
“This regime
thrives only on hol-
low ad campaigns.
It needs to be
brought down.”
—Uddhav Thack-
eray, after the Shiv
Sena decided to fight
the Maharashtra
and Lok Sabha polls
in 2019 alone
“India’s image in
the world has
become that of a
strong nation and
we have given a
strong message to
the world that we
can attack our
enemies not only on
our soil, but also in
their territory....”
—Home Minister
Rajnath Singh, on
the Army crossing
the LoC to kill
Pakistani soldiers
“Darwin's theory (of
evolution of hu-
mans) is scientifi-
cally wrong. It
needs to change in
school and college
curriculum....”
—Minister of State,
HRD, Satyapal
Singh, contesting
Darwin’s theory
of evolution
“Time has perhaps
come for a dedicat-
ed ministry of
national security
affairs. The home
ministry is
overburdened...
national security
matters need con-
stant oversight....”
—J&K Governor
NN Vohra, suggest-
ing the need for
a ministry focussed
only on India’s
national security
“I believe, and I am sure, each one of those present
in the gathering believes that for the survival of a
liberal democracy, an impartial and independent
judiciary is essential, without which, I don’t think,
liberal democracy can flourish.”
—Supreme Court judge Justice J Chelameswar, speaking
at a book launch event in New Delhi

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
TIGER IN
THE ROOM
The choice of chief election commissioner
has now become a political bellwether. Once
a highly respected and independent institu-
tion, of late the Election Commission has
acquired unseemly political baggage which
is reflected in the appointment of the CEC,
usually a retired bureaucrat. The outgoing
CEC, AK Joti, was often charged with being
close to the BJP, having served under
Narendra Modi in Gujarat; more so after his
decisions relating to elections in the state
last year.
His replacement, OP Rawat (above, left), is
made of sterner stuff. He has been critical of
defections through the use of money and
state machinery for intimidation (the maxi-
mum defections in recent elections have
been to the BJP) and what he called the
“creeping ‘new normal’ of political morality”.
Rawat was also accused by the BJP of
favouring Congressman Ahmed Patel’s
Rajya Sabha nomination last year. Rawat’s
tenure ends in December 2018 but the buzz
is that he will be asked to quit before that
and offered a tempting sinecure, so that
Sunil Arora (right) can become CEC well in
time for the general election, which, rumour
goes, the BJP is likely to call earlier than the
scheduled May 2019 date.
Arora served as joint secretary in the min-
istry of civil aviation and was CMD, Indian
Airlines. His career blossomed under AB
Vajpayee and Narendra Modi. There is no
question where his loyalties lie.
ELECTION COMMISSIONER
AS BELLWETHER
The annual Raisina Dialogue
has started to attract some
global heavy-hitters and is
now a must-attend event for
those involved in geo-politics
and geo-economics. The mul-
tilateral conference held in
New Delhi was started in 2016
by the Observer Research
Foundation, a think-tank, in
collaboration with the ministry
of external affairs. This year,
apart from Prime Minister
Narendra Modi, the attendees
included former Afghanistan
president Hamid Karzai,
retired US general David
Petraeus, naval chiefs from
Japan, Australia, India and the
US, the UK army chief, for-
eign, defence and security
ministers from Russia, the US,
Iran, Australia, Singapore,
Poland, and Hungary, apart
from past and present ambas-
sadors of various countries.
The 2018 theme was
“Managing Disruptive
Transitions: Ideas, Institutions
and Idioms” but almost the
entire focus during the two-
day conference was on China
and its increasingly dominant
role in international affairs. The
conclusion was that Beijing is
disrupting established institu-
tions and trade routes and
building its own alternatives
but the rest of the world has
little idea how to respond.
Scary thought.
There’s a serious backstory to the presence
of Narendra Modi at Davos. Despite the hype
surrounding his presence and his address to
the gathering, the fact is that he refused to
attend during his first two years as prime min-
ister. This was in reaction to his being denied
an invitation to Davos post the 2002 riots
when he was Gujarat chief minister and was
keen to attract investment to the
state. Heavy lobbying on his
behalf by the Confederation of
Indian Industry (CII) and corpo-
rate titans like Mukesh Ambani
and the Hindujas could not sway
World Economic Forum (WEF)
chairman Klaus Schwab. Finally,
when the WEF decided that with
India having such a large pres-
ence at Davos and the country’s
rising global profile, he could no
longer be ignored, a senior Indian
executive employed by the Geneva-based
WEF (who happened to be a Gujarati) was
asked to intervene. He met Modi who set two
conditions: one, Schwab would have to come
to Delhi and apologise in person, and, sec-
ond, Modi would be asked to deliver the
inaugural speech. Schwab flew down in June
last year and delivered an apology and the
invitation. He also, to use Modi’s own words,
rolled out the red carpet.
THE DAVOS DENIAL

The Supreme Court while hearing a petition
filed by Hadiya’s husband Shafin Jahan
has refused to interfere in her marriage and
asked the National Investigation Agency (NIA)
to leave aside that angle in its probe. The NIA
had alleged that the woman from Kerala had
married Jahan after indoctrination.
The Court has made it clear that any con-
clusion of the NIA probe regarding the alle-
ged “love jihad” angle will not alter her mari-
tal status, even if it was “devised”. It has
ruled that Hadiya as an adult had stated in
the Court that she married Shafin Jahan “out
of her own free consent” and had not been
under illegal confinement. It did not agree
with the argument put up by the counsel for
Hadiya’s father that the marriage was simply
a ploy to “legitimise her confinement” and “a
last step in a much larger modus operandi”.
CJI Dipak Misra observed that the “criminal
conspiracy, criminal affability or criminal
action” must be delinked from the marriage
angle or else a bad precedent in law would
be set. The final hearing is on February 22.
Courts
10 February 5, 2018
All documents related to
CBI special judge BH
Loya’s death must be exam-
ined impartially, the apex
court observed while
accepting that the issues
flagged by two PILs seeking
an independent probe into
his death were critical. The
top court transferred all peti-
tions pending in the Bombay
High Court to itself and
debarred other high courts
from taking up the issue.
The Court said it would
analyse all documents sub-
mitted by the Maharashtra
government and the petition-
ers without concluding on
the basis of stories pub-
lished in the media. Loya,
who was hearing the Sohra-
buddin fake encounter case,
died of a heart attack in
Nagpur in 2014. The next
hearing is on February 2.
SC calls for
impartial stand
in Loya case
—Compiled by Prabir Biswas
“Do not put up
photos anywhere
after divorce”
The Supreme Court debarred
a man and woman from dis-
playing pictures of each other
anywhere, even online and in
the social media, after annulling
their marriage. The couple was
asked to appear in the Court
after the wife had filed a crimi-
nal complaint against him.
However, the couple made a
request to the CJI-headed bench
hearing the matter that the
vexed issue be put to rest, the
marriage be dissolved, the hus-
band be allowed to pay a one-
time and substantial alimony to
his wife for her maintenance
and also pleaded that the wife’s
complaint be quashed.
The Court then asked the
husband to pay `37 lakh to his
wife and quashed all criminal
proceedings against him. It also
ruled that “all allegations in any
petition” must be removed from
the records and debarred the
concerned parties from having
access to the “certified copy of
the said pleadings.”
Centre asked to decide on Rajiv convicts’ release
Hadiya’s
marriage
can’t be
questioned,
says SC
Athree-judge bench of the
Supreme Court has
asked the centre to take a
call on the Tamil Nadu gov-
ernment’s decision to remit
the life imprisonment of
seven convicts in the Rajiv
Gandhi assassination case. It
gave a deadline of three
months for the purpose. The
apex court was approached
by the centre, challenging the
state government’s move to
free the life convicts without
its permission in 2014. Later
a five-judge constitution ben-
ch ruled that as per law the
states could not remit the
sentences when the cases
were probed by a central
agency or adjudicated under
a central law, and stayed
their release. It, however,
asked a three-judge bench to
decide if the convicts
deserved to be set free.

12 February 5, 2018
VER the last several
decades, Amul’s blue-
haired girl in a dotted
frock has delighted and
entertained the public by
commenting on signifi-
cant events and current issues with wit
and timely punchlines. That effort has
made the brand one of the most popular
and respected in the country.
That achievement comes with its
downside. Not many know that Amul
has been fighting several significant and
serious trademark battles over the years,
with the latest being a petition in the
Gujarat High Court against five Indian
trademark registry offices situated in
Delhi, Mumbai, Kolkata, Chennai and
Ahmedabad for allowing third parties to
Amul’scutelittlegirlshowsaggressionasthecompanygoesontheoffensiveagainst
infringersofitspopulartrademark
By Diljeet Titus and Rai S Mittal
Brand Protection
Lead/ Corporate/ Amul
O
Anthony Lawrence

register and use the name “Amul” and
names similar to “Amul” for a wide
range of products.
Amul is an abbreviation of Anand
Milk Union Limited. From being identi-
fied solely with milk and butter, Amul
went on to become a major brand for a
range of products that the Gujarat Co-
operative Milk Marketing Federation
Ltd (GCMMF) marketed.
Due to its wide popularity and repu-
tation, “Amul” was granted the status of
“well-known trademark” by the
Intellectual Property Appellate Board in
2013 and was included in the list of
“well-known trademarks” in 2015 by
the Controller General of Patent,
Designs and Trade Marks. “Amul” is a
reputed and well-known mark, and thus
enjoys significant protection in India
and globally.
LEGAL PROTECTION
Under Indian law, a “well-known trade-
mark” would denote a mark which has
become so famous to a substantial seg-
ment of the public which uses such
goods that the use of such mark in rela-
tion to other goods or services would be
likely to be misleading.
The factors generally considered for
determining a trademark as well-known
in India include—
Knowledge and recognition of the
trademark in the relevant section of
the public.
Duration, extent and geographical
area of use and promotion of the
trademark.
Duration and geographical area of
registrations and pending applications
in respect of the trademark in India,
reflecting the use and recognition of
the trademark.
Records of successful enforcement
by the entity of its rights to the trade-
mark and whether the trademark has
been recognised as well-known by
courts/tribunals.
Importantly, in order to be protected
as a “well-known trademark”, it is not
essential that the trademark should be
well known to the public at large in
OneandonlyAmul
The Gujarat High Court in 2007 restrained the defendant from using the trade-
mark “Amul”. The Court observed that Amul has the right to restrict others from
using its registered trademark, even for a different category of products.
The Delhi High Court had barred Bharat Confectionery Works from using the
trademark “Amul” for its biscuits.
In 2013, Amul won a dispute with a co-operative union of milk producers agai-
nst the use of brand “Imul”. “Imul” was found to be deceptively similar to “Amul”.
Silver Bakery, a Rajkot firm manufacturing bakery items under the name “Amul”
was restrained by the Anand district court from misusing the brand.
Amul won a favourable injunction against Shakti Dairy/Jarf Dairy regarding
infringement of its trademark.
There are many other lawsuits awaiting decisions in different courts of India.
POWER OF REPUTATION
Besides Amul, other Indian and global brands which are protected as well-known trademarks
include Yahoo, Microsoft, Playboy, Canon, Nirma, Bata, Infosys and Bisleri
Amul has been involved in much litigation with various companies
regarding trademark violation in the past

14 February 5, 2018
India or that the mark should be
well known in any jurisdiction outside
India. Under law, a trademark which
qualifies to be well-known enjoys better
protection—a well-known trademark is
allowed to proceed for registration even
if the product it represents is otherwise
devoid of distinctive character.
Further, a trademark registration
application can be refused if it conflicts
with an earlier registered trademark
which is well known, even if such
a trademark is sought to be regi-
stered in respect of dissimilar goods
and/or services.
There has been a growing consensus
amongst the authorities that stringent
efforts are required to deal with the
menace of trademark infringement and
passing off, and, in particular, misuse of
well-known and leading brands.
Judicial authorities in India have
maintained that if a well-known mark is
not protected from unauthorised use,
then a segment of the public that uses
particular goods with a well-known
trademark may get confused on seeing
the same trademark applied to goods of
other persons.
Besides Amul, other Indian and
global brands which are protected as
well-known trademarks include Bajaj,
Bata, Bisleri, Infosys, Nirma, Pepsi,
Benz, Philips, Canon, Cartier, Dunhill,
Yahoo, Playboy, Microsoft, BBC, Mars
and Castrol.
THE ONGOING DISPUTE
Amul discovered that the Indian trade-
mark registry offices were granting
applications for registration of its well-
known trademark “Amul” to other enti-
ties for other products. Amul applied to
the Gujarat High Court against the five
offices of the trademarks registry. The
Gujarat High Court granted ad interim
relief to Amul, directing the registry
offices not to entertain any fresh appli-
cations for registration of the trade-
mark, “Amul”, from any other party.
The case thus reflects a failure on the
part of the registry offices to observe
legal provisions which bestow a duty on
them to protect the exclusivity of well-
known trademarks.
Lead/ Corporate/ Amul
TheGujaratHighCourtgranted
adinterimrelieftoAmul,directing
registryofficesnottoentertain
anyfreshapplicationsfor
registrationoftrademark“Amul”.

was forced to rename itself “A Tek”. In
addition, several such lawsuits are pend-
ing before different courts in India. It is
believed that several more cases are also
in the pipeline.
RECENT TRADEMARK CASES
The Delhi High Court recently declared
Christian Louboutin’s “Red Sole” a well-
known trademark.
In another recent judgment, the
Delhi High court ruled that the name of
Kentech RO Systems and their domain
name www.kentechro.com infringed
upon the “KENT” mark. In yet another
case, the Bombay High Court restrained
the use of the mark “KWIKHEAL” as
the word “KWIK” was considered to be
the dominant part of the plaintiff’s
trademark “FEVIKWIK”.
However, in a recent case, titled as
Toyota vs Prius Auto, the Supreme
Court, while holding that intellectual
property rights are “territorial” and not
“global”, refused to grant an injunction
restraining the defendant from using its
registered trademark, “Prius”, even
though Toyota was the prior user of the
mark. The Court observed that even
though Toyota’s Prius mark was well
known outside India, Toyota had failed
to prove that it enjoyed a reputation in
the “Indian” market in the year 2001
when the defendant began using the
mark in India.
As Amul and many others have vig-
orously defended their valuable trade-
marks, the trend of protecting well-
known marks from misuse in relation to
different products/services will grow as
intellectual property is one of the most
valuable assets of a business.
The problem is that the temptation
to use, or misuse, a brand name like
Amul is, as the tagline says, utterly but-
terly delicious.
—The writers are advocates in
Titus & Co
This is not the first time that Amul
has had to defend its mark. There have
been many instances in the past. In a
judgment passed by the Gujarat High
Court in 2007, it restrained the defen-
dant from using the trademark “Amul”,
observing that the registered proprietor
has the right to restrict others from
using its registered trademark even for a
different class of goods. In another case,
the Delhi High Court restrained Bharat
Confectionery Works from using the
mark “Amul” on its biscuits.
In 2013, Amul won a dispute with a
co-operative union of milk producers
against its use of brand “Imul” for milk,
as the name “Imul” was found to be
deceptively similar to “Amul”. Silver
Bakery, a Rajkot firm manufacturing
bakery items under the name “Amul”,
was restrained by the Anand District
Court from such brand misuse. Another
dispute with Shakti Dairy/Jarf Dairy for
infringement of the “Amul” mark with
similar designs/colour scheme on pack-
ages for milk witnessed the court granti-
ng an injunction order.
Similarly, in a dispute for infringe-
ment of the “Amul” mark for milk prod-
ucts with a similar design/colour
scheme, the court granted an injunction
stay against one Satyam Dairy. As a
result of legal action against a company
called AmulTek Software Solution, it
Intellectualpropertyisavaluable
assetofabusiness.Theproblem
isthatthetemptationtouse,or
misuse,theAmulbrandis,utterly
butterlydelicious.

motion recommending his removal has
to be only on the ground of proved mis-
behaviour or incapacity. Protection has
been given to the judges of the Supreme
Court and high courts in the interest of
their independence. They should dis-
pense justice without fear or favour.
There is a material difference bet-
ween the motion of no-confidence
against a council of ministers and one
that seeks the removal of a judge. A
motion of no-confidence in a legislature
serves an opportunity to criticise the
UNDER ATTACK
The Chief Justice of
India, Dipak Misra
My Space Justice Narendra Chapalgaonkar/ CJI Impeachment Move
16 February 5, 2018
Don’tHarmtheInstitution
AnattempttoimpeachChiefJusticeDipakMisrawillaffectthecredibilityofthejudiciaryand
shouldbeweighedagainstanylikelypoliticalgain
T has been reported in the media
that some politicians are toying
with the idea of initiating impeach-
ment proceedings against Chief
Justice of India (CJI) Dipak Misra.
This appears to be in reference to
the recent controversy about allocation
of work among four brother judges of
the Supreme Court by the CJI.
A judge of the Supreme Court is not
removable during his tenure except by
adopting the procedure prescribed in
Article 124(4) of the Constitution. The
I
Anil Shakya

policies of the government in office. It
succeeds only on very few occasions.
Even if it fails, the purpose is served.
Such motions do not injure the prestige
of parliament, the state legislature or
parliamentary democracy as a system.
SERIOUS IMPLICATIONS
The motion of impeachment against a
judge has wider and more serious impli-
cations. It creates an impression in the
public mind that the judicial system on
which we rely so much is not trustwor-
thy. Even if the motion fails, the damage
is done. The scar is always visible to the
public eye. People may forget the names
of the incumbents sought to be impea-
ched, but they remember the institution.
The political atmosphere in the
country is today so polluted that it is im-
possible to have any serious discussion
with a cool mind. Let us hope that this
will not infect other areas of public life.
Judges and the judiciary are sometimes
subjected to unfounded allegations.
Against this background, it is necessary
to be cautious while taking any step
which will affect the judiciary as
an institution.
What kind of misbehaviour by a
judge would be a justifiable ground for
removal? The question is not easy to
answer. But it can safely be said that any
degree of suspicion about a possible
future act or omission will not consti-
tute misbehaviour. Previous attempts to
remove judges through impeachment
are well known. Such a move rarely cul-
minates in removal, it only affects the
credibility of the institution in the pub-
lic mind. This possibility should be
weighed against the likely political gain.
DIFFICULT PROCESS
The procedure prescribed for removal of
a judge of the Supreme Court or a high
court is difficult and time-consuming.
There is the inherent possibility of seek-
ing the removal of a judge or defending
a judge for the wrong reasons. Political
views are likely to get prominence over
the impartial examination of the allega-
tions against the judge. This has ren-
dered the remedy ineffective.
In-house machinery is sought to be
put to use as a correctional measure.
Unless such a procedure is incorporated
in the Constitution, it may not serve in
all circumstances. Any such procedure is
bound to be supervised by the CJI. If
the allegation of impropriety is against
the head of the institution itself, who
will lead the action? The makers of the
Constitution had devised checks and
balances and authorised parliament to
act in such cases.
All governments have a tendency to
overpower the judiciary. Therefore, it
is always better that the judicial
fraternity sits together and finds a solu-
tion on its own. The prime considera-
tion would naturally be to protect judi-
cial independence.
—The writer is a former judge
of Bombay High Court
Sitaram Yechury,
general secretary,
CPI(M)
“We are discussing
with opposition parties
on possibility of an
impeachment motion
against CJI in Budget session.”
“I think by the time Parliament opens
on January 29, the matter will be very
clear. We will be moving towards
impeachment motion. It is time for the
legislature to play its role along with
the executive.”
“Consultations are on with secular
Opposition parties.”
“The main point is it has been nearly
two weeks now since senior judges
have raised certain very important
points. And we had hoped that the mat-
ter will be settled within the judiciary.
We, at least the CPM, are very firm on
the position that the independence and
integrity of the judiciary is non-nego-
tiable. That should be upheld.”
Tariq Anwar, leader,
Nationalist
Congress Party
“We are of the view
that the matter should
be sorted out with the
Supreme Court. But it is not happening.
So we, the Parliament, have no other
option but impeachment. But we will
take a decision only after taking all
Opposition leaders into confidence….”
Ashwani Kumar,
senior Congress
leader and former
law minister
“Given the totality of
circumstances, this is
not a case for explor-
ing the extreme remedy of impeach-
ment which, as per established law and
practice, can only be resorted to where
facts constituting moral turpitude are
established beyond doubt.”
Manish Tewari,
former Union
minister
“As far as I under-
stand there has been
no substantive discus-
sion about it so far.
And impeachment is an extremely seri-
ous matter and all facts and circum-
stances, attendant or otherwise, have
to be considered in very great detail
before a decision can be reached
either way.”
Tryingforaconsensus
As the CPI(M) continues its efforts to rope in all opposition parties to
move an impeachment motion against the Chief Justice of India, Dipak
Misra, in Parliament, political leaders from the party as well as the
Congress shared their views on the issue to the media.

Investigation/ 1984 Riot Cases
18 February 5, 2018
transferred to this panel are from a
bunch of 199 that another SIT—
appointed in February 2015 by the Modi
government and headed by IPS officer
Pramod Asthana—had recommended
for closure, along with 42 other cases
that a Supreme Court-appointed super-
visory committee had examined.
One has to bear in mind that after
over 33 years, many witnesses and even
the accused may either not be traceable
YetAnotherProbe?
TheSupremeCourt’sdecisiontoconstituteanSITtore-examine186closedcaseslinkedwith
the1984riotshasrekindledhopeamongthevictims,butwillitleadtoanybreakthrough?
By Puneet Nicholas Yadav
OR Sardar Gurlad Singh
Kahlon, the Supreme Court’s
decision to accept his plea for
re-opening 186 cases linked
to the 1984 anti-Sikh riots
has rekindled hope that jus-
tice is finally within reach.
A three-member Special
Investigation Team (SIT) headed by
Justice SN Dhingra, a retired judge of
the Delhi High Court, was constituted
on January 11 by the Supreme Court in
response to Kahlon’s plea and will be the
11th panel to probe the riots.
In the more than 33 years that have
F
passed since the mass killings claimed
3,300 lives, as many as 10 committees,
teams and commissions have been con-
stituted by successive governments and
the Supreme Court to probe the riots.
Most have only added insult to injury
for the likes of Kahlon, giving them a
ray of hope before dashing it as farcical
probes got underway.
Will the new SIT, also comprising
IPS officer Abhishek Dular, currently on
central deputation with the CBI, and
Rajdeep Singh, who recently retired as
Special DG of the BSF, be able to deliver
the much-delayed justice? The 186 cases
A LONG WAIT
Family members of 1984 anti-Sikh riots
victims stage a protest in Amritsar
UNI

or alive. Some victims may have moved
on and not want to be reminded of old
horrors. As such, there is the risk of this
SIT hitting a dead end. Nonetheless,
Justice Dhingra and his SIT colleagues
will need to get down to business soon
as the Supreme Court wants the panel
to submit its interim report within two
months, i.e. by mid-March.
But even a fortnight after the SIT
was constituted, Justice Dhingra is
waiting for a written notification for-
malising the constitution of the panel he
is supposed to head. Neither is there any
clarity on the terms of reference for the
new probe nor which of the 241 shut
cases would be re-opened.
In the 1990s, Justice Dhingra as a
trial court judge had presided over sev-
eral cases linked to the anti-Sikh riots.
He had also famously incarcerated
Congress heavyweight HKL Bhagat and
awarded a death sentence to Kishori
Lal, known as the “butcher of
Trilokpuri” for his role in the massacre.
Speaking to India Legal, Justice
Dhingra confirmed: “I have not seen the
SC order yet. I have to see what the
terms of reference are. It is only after
receiving the formal order and the terms
of reference that I can determine the
procedure to be adopted by us for the
probe.” Asked whether he knew which of
the total 241 closed cases his team had
to re-examine, he said: “I don’t have any
of these details yet.” But what he is sure
of is this: “I can’t make the same mis-
takes that earlier SITs and inquiry com-
missions made.”
He added: “Once I have the details of
the 186 cases that the SIT has to re-
open, I will have to go through all the
files individually to see what the report
of the earlier SIT was. We will have to
examine whether a genuine effort was
made to find the culprits or was evi-
dence actually missing…witnesses and
accused will have to be tracked down if
they are there.”
POLITICAL TREMORS
The re-opening of the cases will,
undoubtedly, also have political ramifi-
cations as the riots broke out in the
immediate aftermath of the assassina-
tion of then prime minister Indira
Gandhi by her Sikh bodyguards. The
alleged role of the Congress party and
several of its leaders—the late Bhagat,
and former MPs Sajjan Kumar and
Jagdish Tytler, to name a few—has been
under investigation for years and
become a blot on the Grand Old Party.
HS Phoolka, a Supreme Court advo-
cate who has been fighting a large num-
ber of court cases linked with the riots,
believes that earlier investigations and
court rulings in these cases “were biased
and carried out not to ensure justice but
to bail out the Congress and its leaders.
At least in this aspect, things have
changed now and we hope that the role
of political leaders who were instrumen-
tal in organising the mass murder will
finally be exposed by this new SIT”.
Is the Congress worried that the re-
opening of the cases could dent its
already dwindling electoral fortunes?
Officially, the party has welcomed the
SIT. Captain Amarinder Singh, chief
minister of Punjab and a person who
had famously quit as an MP in 1984 in
protest against the riots—has welcomed
the SIT. “It is high time justice be pro-
vided in these cases. More than 30 years
have passed since the gory violence
claimed many lives. While various com-
missions had been set up to investigate
the cases, justice continues to elude the
victims,” said Singh.
A senior Congress leader, speaking
on condition of anonymity, told India
Legal: “There is nothing more that the
party wants than to have justice deliv-
ered in these cases. But the present
political situation and the appointment
of a pro-conviction judge on the recom-
mendation of the Modi government
raises some fear that this might turn out
to be another politically motivated
witch-hunt.”
However, Phoolka asked: “If a judge
convicts an accused on the basis of evi-
dence against him, how can there
TAINTED
LEADERS
(L to R)
Congressmen
HKL Bhagat,
Sajjan Kumar,
Jagdish Tytler
EvenafortnightaftertheSITwas
constituted,JusticeDhingrais waiting
forawrittennotificationformalising
theconstitutionofthepanelheis
supposedtohead

T
he Justice SN Dhingra SIT will be
the 11th probe panel that will look
into the 1984 riots cases. In 1985,
then prime minister Rajiv Gandhi had
appointed an inquiry commission head-
ed by Justice Ranganath Misra to
inquire into allegations of organised
arson in Delhi, Kanpur and parts of
what is now Jharkhand.
The Justice Misra
Commission had con-
cluded that the violence
was an involuntary reac-
tion and that the
Congress did not have a
role in fanning it though
some of its leaders par-
ticipated in the pogrom
“entirely on their own”.
This Commission’s recommendation
came in 1986.
Next, the Delhi administration
appointed three committees on
February 23, 1987—the Kapoor-Mittal
Committee (to inquire into the conduct
of the Delhi police), the Justice (retired)
ML Jain Committee (to look into
offences committed during the riots)
and the RK Ahuja Committee (to estab-
lish the death toll in Delhi). It was the
Ahuja Committee that recorded the
death toll in Delhi at 2,733. In March
1990, the Delhi administration appoint-
ed a fresh committee of retired Gujarat
High Court Chief Justice P
Subramanian Poti and retired IPS offi-
cer PA Rosha with revised terms of ref-
erence. The committee was subse-
quently reconstituted and examined
669 affidavits that were filed before the
Justice Misra Commission, besides 415
new affidavits and 403 FIRs recorded
by the Delhi Police. The committee
highlighted major lapses on the part of
the Delhi police.
The first NDA government led by
Atal Bihari Vajpayee appointed a com-
mission led by former Supreme Court
judge Justice GT Nanavati. In its report
submitted on February 9,
2005, this commission
indicted Congress lead-
ers and workers for “help-
ing the mobs in attacking
the Sikhs” but recom-
mended the re-opening of
only four out of 241
closed cases.
Shortly after coming to
power in 2014, the Modi-
led BJP government tasked former SC
judge Justice GP Mathur to examine
the possibility of constituting an SIT
to re-investigate the 1984 cases. A
three-member SIT was formed on
February 12, 2015, and headed by
1985-batch IPS officer Pramod Asth-
ana. After three extensions and re-
investigation of 286 cases, the SIT told
the SC in March 2017 that it had closed
199 cases. After nearly three years of
investigations it had filed chargesheets
in only 12 cases.
On August 16, the SC appointed a
panel comprising its former judges,
Justices JM Panchal and KSP Radha-
krishnan, to examine the Asthana SIT’s
decision to close the 199 cases and
referred another 42 closed cases to it.
33years,11inquiries
20 February 5, 2018
be a conflict of interest? I think anyone
who questions the integrity of Justice
Dhingra has no understanding of how
the law functions.”
ENOUGH EVIDENCE
But how will the new probe be any dif-
ferent from the 10 others that have been
carried out earlier? Phoolka added: “We
have to hope that it will be. The griev-
ance of the (Sikh) community was that
the SC didn’t do enough in all these
years to secure justice for the riot vic-
tims. At least in that aspect, this is a
right decision. Secondly, there is enough
evidence on record to show that cases
which were closed by the earlier SIT and
many others which were probed by the
CBI or the Delhi police were never
properly investigated. Purely on this
ground, a re-investigation is called for.”
He cited a riots case in Delhi
Cantonment where one FIR was filed
for 31 murders in 1984, but when the
case was probed, the investigating
agency filed its chargesheet in only five
of the murders. Later, this case was shut
because the agency could not produce
even a single eyewitness in court for
these five murders.
With less than 45 days left for it to
submit its interim report and no comm-
unication yet on the terms of reference,
it remains to be seen whether the hopes
of the riot victims will be belied or are a
harbinger of justice. For Kahlon, “even if
justice is served in one of these 186
cases, I would feel some progress—even
if only symbolic—has been made.”
“Itisonlyafterreceivingtheformal
orderandthetermsofreferencethatI
candeterminetheproceduretobe
adoptedbyusfortheprobe….Ican’t
makethesamemistakesthatearlier
SITsandinquirycommissionsmade.”
—JusticeSNDhingra
“Thereisenoughevidenceon
recordtoshowthatcaseswhich
wereclosedbytheearlierSITand
manyotherswhichwereprobedby
theCBIortheDelhipolicewere
neverproperlyinvestigated.”
—HSPhoolka,advocate
Investigation/ 1984 Riot Cases
Justice Ranganath Misra

As current Chief Election
Commissioner AK Joti demits office,
he will be succeeded by Election
Commissioner Om Prakash Rawat (far
right), a retired 1977-batch IAS officer of
the Madhya Pradesh cadre. He was
appointed Election Commissioner on
August 14, 2015. Former finance secre-
tary Ashok Lavasa (right) has been
appointed an Election Commissioner.
With this, the three-member commission
will now comprise Rawat, Lavasa and
Sunil Arora. Rawat’s tenure will be rather
short, as it will end this December, after
which Arora, the seniormost in the
Commission, will take over as the chief of
the Election Commission.
Briefs
The Allahabad High Court
imposed a `5,000 fine as costs
on the law ministry and the Prime
Minister’s Office for the delayed
response to a PIL filed by Sunil
Kandu. The bench of Justices Sudhir
Agarwal and Abdul Moin passed the
order on Kandu’s petition, contend-
ing that only 10 of the 5,000 reports
submitted by the Comptroller and
Auditor General are considered by
the centre every year. The Court in
August last year had given a month’s
time to the respondents to file their
response. While the Additional
Solicitor General, appearing on
behalf of the respondents, failed to
do so, the Court imposed costs of
`5,000 and directed listing of the
matter after three weeks.
Allahabad HC fines law
ministry and PMO
—Compiled by Lilly Paul
After Madhya Pradesh, the
Haryana government is
planning to award the death
penalty to rapists found guilty of
raping girls aged 12 years or below.
Following a sudden increase in
rape cases in the state, Chief
Minister Manohar Lal Khattar
made the announcement propos-
ing the death sentence for chil-
dren’s rapists. Haryana has wit-
nessed nine rapes in the past week.
Khattar also urged the media not
to sensationalise rape incidents
without proper verification as 25
percent of the cases recently
reported were found to be fake. He
said that since in most of the cases,
relatives are found to be the cul-
prits, it was the responsibility of
society as well to create awareness
among people.
OP Rawat new CEC, Ashok Lavasa appointed EC
In his third conviction
linked to the fodder
scam, former Bihar chief
minister Lalu Prasad
Yadav was held guilty in
the Chaibasa Treasury
case by a special CBI
court in Ranchi. Along
with Yadav, another for-
mer Bihar CM,
Jagannath Mishra, was
also convicted in the
case and both have been
sentenced to five years
in prison. The case per-
tains to the fraudulent
withdrawal of `33.67
crore from the Chaibasa
(now in Jharkhand) dis-
trict treasury in 1992-
93, while Yadav was the
Bihar CM. Yadav is
already lodged in
Ranchi’s Birsa Munda
jail after two earlier
convictions in the fodder
scam. Justice SS
Prasad of the special
CBI court held Yadav,
Mishra and 48 more
guilty while acquitting
six others.
Haryanaplanstoawarddeath
penaltytochildren’srapists
Serial blasts
suspect held
Abdul Subhan Qureshi
alias Tauqeer, a suspect
in the Gujarat and Delhi
serial blasts of 2008, has
been arrested by the Delhi
police after a gunfight.
Tauqueer was on the
National Investigation
Agency’s most wanted list.
He was on the run for a
decade and was wanted in
six states. Tauqeer was arres-
ted from the Ghazipur area
in East Delhi. Along with 38
others, he was chargesheeted
for being a member of the
banned Students Islamic
Movement of India. The
NIA had declared a reward
of `4 lakh for information
about his whereabouts.
Lalu convicted in third fodder scam
case, awarded five-year jail term

Human Rights/ Custodial Deaths in Kerala
22 February 5, 2018
port with the hashtag #JusticeFor-
Sreejith also caught on.
MPs from Thiruvananthapuram and
Alappuzha Shashi Tharoor and KC
Venugopal, respectively, met Union
minister Jitendra Singh to ask for a CBI
probe into the matter. Finally, Kerala
Chief Minister Pinarayi Vijayan also met
Sreejith on the 767th day of his protest
and assured him of a CBI inquiry.
POLICE BRUTALITY
The tragedy of Sreejiv’s life began on
May 12, 2014, 10 days before the mar-
riage of a young woman with whom he
had an alleged relationship. Some police
officials, including a sub-inspector,
Phillipose, who is said to be the woman’s
relative, barged into Sreejiv’s home at
midnight and harassed his mother and
Sreejith as Sreejiv was not at home. The
police later found him in a lodge in
Thiruvananthapuram and arrested him
MyBeloved
Brother,Sreejiv
Thisyoungman’sdeathin2014hasbroughtintosharpfocus
themanyliveslostbrutallyatthehandsofthepolice
By Lilly Paul
OR Puthenveetil Sreejith, his
brother Sreejiv was the only
companion he had ever had.
After losing their father at a
very young age, they spent
their childhood in an
orphanage. He lost his beloved brother
on May 21, 2014, to custodial death by
the Parassala police in Kerala. In 2016,
he started his struggle to get justice for
his brother.
Sreejith’s fight caught attention when
some unknown people uploaded a video
F
of him sitting in the rain in front of the
Kerala secretariat in Thiruvanantha-
puram, demanding a CBI probe into the
death of his brother. He has been sitting
in protest for some 800 days, facing the
elements, including Kerala’s torrential
rains. As the video went viral, the ver-
nacular media picked up his story. This
eventually led to massive support for
Sreejith from across the state, including
from Malayalam actors Nivin Pauly,
Prithviraj and Parvathy and Kerala
Blasters player CK Vineeth. Online sup-
STEADFAST RESOLUTION
Sreejith’s over-two-year-long fight for his dead
brother has finally got civil society’s attention
Photo Courtesy: Facebook

in a case of theft allegedly committed by
him a year before. He died in custody a
day before the woman’s marriage. The
police claimed he had consumed
pesticide crystals which he had hidden
in his underwear.
However, a report by then chairman
of the State Police Complaint Authority
(SPCA) and former Kerala High Court
judge Justice K Narayana Kurup
revealed startling details about his case.
Speaking to India Legal, Justice Kurup
reiterated that Sreejiv’s case was a “cus-
todial death”. A suicide note was “found”
and produced by the police, claiming it
was written by Sreejiv. Justice Kurup
said that the “suicide note was fabricat-
ed by the police. It was done to make it
appear like a suicide”. He said it was
shown to the family members of Sreejiv,
but they denied it was his handwriting.
“When I read the reports submitted by
the police, I found a ledger entry of a
lodge in Attingal, Thiruvananthapuram,
from where the police had taken Sreejiv
into custody. The handwriting in the
ledger entry, which was undoubtedly
Sreejiv’s, was different from the suicide
note submitted by the police. It was
later confirmed that both the writings
were by different people and it was
proven in court.”
While Sreejiv’s case has caught
media attention, the fact is that many
custodial deaths take place in India and
the victims are often forgotten and
denied justice. National Human Rights
Commission data from 2001 to 2010
records 14,231 deaths in police and judi-
cial custody in India. The NHRC’s
report of 2014 said there were 583 com-
plaints and intimations regarding custo-
dial death and rape in Kerala. However,
a report by the Asian Centre for Human
Rights—“Torture in India 2011”—says
that not all cases of police and prison
custody were reported to the NHRC.
A senior Supreme Court advocate
working with Human Rights Law
Network told India Legal that NHRC
had a more accurate number of these
deaths compared to the National Crime
Records Bureau (NCRB). NCRB data of
2016 shows only two custodial deaths in
Kerala. “This data is based on police
stations reporting the cases. And custo-
dial deaths are often shown as death
due to illness, natural causes or suicide.
The police hide the actual data and
hence NCRB statistics are not reliable,”
he said.
COMPROMISED DGP?
According to the vernacular media, the
Union deputy minister for home had in
December 2016 informed the Lok Sabha
that 30 percent of the cases filed with
the Kerala Human Rights Commission
were about police atrocities. PA Pouran,
general secretary, People’s Union for
Civil Liberties, told India Legal: “Under
the chief ministership of LDF chief min-
ister VS Achuthanandan, Kodiyeri
Balakrishnan was the home minister.
But now, both these posts are held by
the CM, Pinarayi Vijayan. Appointing
ex-DGP Raman Shrivastav as his advi-
sor in police matters speaks volumes.”
Pouran alleged that in 1991,
Shrivastav had ordered that he wanted
dead bodies of Muslims and on his
instruction, an 11-year-old girl,
Sirajunisa, was shot dead in her court-
yard with the police accusing her of
leading a mob to a nearby Brahmin-
dominated village. This was when
Palakkad was witnessing communal vio-
lence and the Sangh Parivar was taking
a procession through the town to lend
support to Murli Manohar Joshi’s ekta
yatra.
Many a time in Kerala, an accused is
arrested over a petty issue and later
found dead. Vineesh, 32, was picked
“Incaseswhereapersonispickedupby
thepolice,nobodyescapesphysicaltor-
ture.Onceapersonistakenintocustody
andlaterfounddead,thepolicehasto
explainwhathappenedtotheperson.”
—JusticeKNarayanaKurup,
formerKeralaHighCourtjudge
LAW-KEEPERS, LAW-BREAKERS
The Kerala Police is often accused of commit-
ting atrocities and hushing up custody deaths
UNI

24 February 5, 2018
up from his house on March 16, 2016,
by the Elamakkara police for not paying
a fine. Four days later, his family was
informed that he was being admitted to
Thrissur Medical College hospital.
When they reached there, they found
him dead.
BRUTAL DEATHS
In another case, Johnson, again a resi-
dent of Elamakkara, was arrested by the
police for drinking and creating a nui-
sance in public. He was released the
next day but was admitted to a hospital
as his health deteriorated. On the way to
the hospital, he told his relatives that he
was brutally beaten by the police and
that his hands were tied and his head
smashed against a wall. He died and
his post-mortem report mentioned this
head injury.
“In all such cases,” said Justice
Kurup, “nobody escapes physical tor-
ture. Once a person is taken into cus-
tody and later found dead, the police are
legally bound to explain what happened
to the person.”
In custodial deaths, there is a pre-
sumption of guilt and an FIR has to be
registered, informed the senior Supreme
Court advocate. “And if it is registered
under Section 376 of the IPC, then it
has to be investigated by a first class
judicial magistrate. Instead, it is often
investigated by an executive magistrate.
As for conviction of guilty police offi-
cials, that hardly happens as no case is
registered.”
Justice Kurup said that custodial
deaths should be investigated by a spe-
cial investigation team as directed by
the SPCA. “It is the fundamental princi-
ple in justice. If the police is involved in
a murder and investigates it, the find-
ings will definitely be one-sided,” said
Justice Kurup.
He said the SPCA has all the powers
of a civil court. Conclusions are based
on evidence and the recommendation
sent to the state government. In the
Kerala Police Act under which the SPCA
was formed, he said it is clearly stated
that the orders of the authority have a
binding effect on the government. “If
the police does not comply with our
directions, it amounts to contempt,”
Justice Kurup said.
Pinarayi has been criticised by the
Opposition and its own ally, the CPI.
“The Pinarayi government wants to en-
sure that no crimes are registered agai-
nst the police at any cost,” said Pouran.
REACHING A DEAD END
One of the cases that reached the Kerala
High Court is the custodial death of
Udayakumar who underwent police tor-
ture in Thiruvananthapuram’s Fort
police station in 2005. He was tor-
tured—made to lie on a bench and beat-
en on the soles of his feet and an iron
pipe was rolled down his thighs. His
post-mortem report said he had sus-
tained 22 wounds, including that from
the iron pipe. The High Court stayed
trial proceedings in the case and the
matter is being heard in a special CBI
court after his mother filed a petition in
the High Court.
A former police constable, Heeralal,
who was made an approver in the case,
had submitted an interrogation state-
ment admitting that he had prepared a
fake FIR on the instruction of his sen-
iors. But his statement was not even
submitted by the CBI before the court.
Three days after a forensic expert con-
firmed torture, the former ASI of Fort
police station and one of the witnesses,
Jalaludeen, turned hostile. In addition,
Suresh Kumar, who was arrested along
with Udayakumar, had already turned
hostile. With other witnesses also doing
so, the case seems to be going nowhere.
So, compared to these forgotten cus-
todial death cases, Sreejith has been
lucky. His struggle has found a voice in
society. Will justice be finally delivered
to him?
K
erala can never forget the death
of P Rajan, an engineering stu-
dent, and his father TV Eachara
Warrier’s relentless struggle to get him
justice. Rajan was picked up by the
police on March 1, 1976, for his alleged
involvement in a Naxal attack. His
father, a professor, did all he could to
trace him but finally realised that he
had lost him to police brutality. After
that, his sole aim in life was to get jus-
tice for his dead son.
In those days of the Emergency,
Warrier filed a habeas corpus in the
Ernakulam High Court with the home
minister, K Karunakaran, being one of
the respondents along with Kerala’s
home secretary, the IGP and other
police officials. Eight witnesses said
that Rajan was tortured by police offi-
cials. However, the government and the
police maintained that he was not
arrested. Justice P Subramaniam Potti
ordered Rajan to be produced in court.
Along with other respondents, Karuna-
karan then admitted in court that Rajan
had died in “unlawful police custody”
due to police torture.
Karunakaran was sworn in as chief
minister in 1977 and had to resign after
a month on April 25, 1977. Warrier
didn’t get to see his son again. The last
lines of Memories of a Father, a book
penned by Warrier, poignantly say: “I
don’t close the door. Let the rain lash
inside and drench me. Let at least my
invisible son know that his father never
shut the door.”
WhyaCMhadtoquit
K Karunakaran; and (right) P Rajan
Human Rights/ Custodial Deaths in Kerala

Acts & Bills/ Transgender Persons (Protection of Rights) Bill, 2016
26 February 5, 2018
Court held that because transgender
people were treated as socially and eco-
nomically backward, they should get
reservations in admissions and jobs. The
meaning of “transgender” is across or
beyond sexual orientation. Gays, les-
bians and bisexuals are not third gender.
Under the Transgender Persons
(Protection of Rights) Bill, 2016, a
transgender person can make an appli-
A Half-hearted
Attempt…
TheBillhasmanylacunaeanddoesnotcompletelyprotectvariousrightsofthethird
gender,beitprivacy,employmentorfundamentalrights
By Neha Bahl and Dr NK Bahl
HE transgender communi-
ty is one of the most mar-
ginalised in the country. It
faces many problems rang-
ing from social exclusion
to discrimination, lack of
education and medical facilities, unem-
ployment and so on. Article 14 of the
Constitution guarantees “equality before
law” to all, while Articles 15 (1)(2) and
16 (2) prohibits discrimination on the
ground of sex alone. And while Article
19(1)(a) ensures freedom of speech and
expression to all citizens, discrimination
T
and atrocities against transgender peo-
ple continue.
National Legal Service Authority v.
UOI (AIR 2014 SC 1863) is a landmark
judgment of the Supreme Court as it
declared transgender people as the
“third gender”. The Court affirmed that
the fundamental rights guaranteed
under the Constitution will be equally
applicable to transgender people and
gave them the right to self-identification
of their gender as male, female or third
gender. This judgment is a major step
towards gender equality in India. The
FIGHTING FOR RIGHTS
Members of the transgender community
staging a protest in Thiruvananthapuram
Photos: UNI

cation to the district magistrate (DM)
for issuing a certificate of identity as a
transgender person. The DM will refer
such an application to a district screen-
ing committee. The certificate of identi-
ty will be issued on the basis of recom-
mendations by this committee.
However, if any change needs to be
made in the gender of the transgender
person, he can make another application
to the DM for a revised certificate.
The positive feature of the Bill is that
the right of residence of transgender
persons is assured. A transgender per-
son cannot be separated from parents or
the immediate family on the ground of
being a transgender. Thus, the right of a
transgender person to reside in the
house is confirmed. Vocational training
and healthcare facilities are also assured
to them. A national council for trans-
gender persons shall be constituted by
the central government for performing
functions assigned to it by this new law.
According to Clause 2(i) of the Bill, a
transgender is a person who is neither
wholly male nor wholly female; or a
combination of female and male; and
whose sense of gender does not match
with the gender assigned to that person
at the time of birth. This includes trans-
men and transwomen, persons with
inter-sex variations and gender queers.
This definition of transgender person is,
however, narrow.
The Bill also says that whoever com-
pels or entices a transgender person to
indulge in the act of begging or other
similar forms of forced labour or denies
the right of passage to a public place,
forces or causes such a person to leave a
household, village or other place of resi-
dence; or harms or endangers a trans-
gender person shall be punishable with
minimum six months’ imprisonment
which may extend to two years and a
fine. The punishment fixed for violations
of the provisions of the Bill can be criti-
cised for not being deterrent enough.
DRACONIAN PROVISIONS?
A few provisions of the Bill can be ter-
med draconian, making it seem more
like a projection, not a protection Bill.
The criminalisation of begging is one of
its worst provisions because at present,
begging is the primary livelihood of
transgender persons. If begging is made
an offence, most of them would land in
jail. They have no choice but to beg as
society indirectly forces them to beg by
blocking all other income options
through sustained discrimination.
Without an alternative source of
income, the Bill would make them out
to be criminals. And the police will get
an additional tool to harass them. There
is no provision in the Bill for reservation
or alternative employment.
Another negative aspect of the Bill is
the provision for formation of a “screen-
ing committee” to certify transgender
people. This amounts to asking them to
bare themselves in front of the govern-
ment committee to be identified as men
and women. Just because transgender
people are different, they cannot be
treated inhumanly. The identification
process should preserve their privacy.
The Bill appears to be violative of the
fundamental rights of transgender peo-
ple in as much as it forces them to live
with their biological family or at a reha-
bilitative centre. The guru-shishya
parampara, which is strong amongst
transgender people, will be destroyed if
this provision is implemented.
This Bill is also silent on the problem
of inter-sex babies born every year.
Around 10,000 inter-sex babies born
annually are subjected to medical abuse
and surgeries. Inter-sex people are born
with a reproductive anatomy that does
not fit the typical definition of male or
female. Thus, some of the provisions of
the Bill are unfair.
If Parliament represents the will of
the people, it should represent the will
of transgender people too. If those for-
mulating the Bill don’t know about
transgender people and their problems,
how can they ensure their rights?
—The writers are an assistant
professor of law, Amity Law School,
Noida, and a professor of law,
School of Law, Delhi Metropolitan
Education, Noida
TheBillhasaprovisionfortheformation
ofa“screeningcommittee”tocertify
transgenderpeople.Thisamountsto
askingthemtobarethemselvesinfront
ofthegovernmentcommittee.

Politics/ “Office of Profit”
28 Fabruary 5, 2018
HE compulsions of demo-
cratic politics often pro-
duce strange consequences.
A nascent political party
which comes to power on
the basis of popular sup-
port at the hustings finds it a challenge
to satisfy the rising aspirations of those
who backed it. When it seeks to do so
within the limitations of the constitu-
tion, it risks compromising propriety
and adopting dubious methods to cir-
cumvent accountability and rule of law.
The predicament of the ruling Aam
Aadmi Party in Delhi, whose 20 MLAs
stand disqualified for having accepted
the post of parliamentary secretary, an
“office of profit” and considered by the
constitution as a ground for disqualifica-
tion, is precisely this. For these MLAs
who stood disqualified by President
Ram Nath Kovind on January 21 on the
recommendation of the Election Com-
mission (EC), the term “office of profit”
would actually mean “office of loss”.
Appointed parliamentary secretaries
and sworn in as such by Delhi Chief
Minister Arvind Kejriwal on March 13,
2015, their appointments were set aside
by the Delhi High Court on September
8, 2016. The attempt of the Delhi
Legislative Assembly to retrospectively
exclude through legislation the post of
parliamentary secretary from being con-
sidered an “office of profit” failed
because then president Pranab
Mukherjee had refused to give his
assent to the bill passed by the assembly
to achieve that purpose.
Article 102(1) (a) of the Constitution
of India says a person shall be disquali-
fied for being chosen as, and for being, a
member of either house of parliament if
he holds any office of profit under the
Government of India or government of
any state other than an office declared
by Parliament by law not to disqualify
its holder.
Article 191 (1) (a) similarly says that a
person shall be disqualified for being
A Question of Propriety
Thedisqualificationof20AAPMLAsonthegroundthattheyfunctionedasparliamentarysecretaries
stemsfromthefactthatthereisanocomprehensiveanduniformdefinitionof“officeofprofit”
By Venkatasubramanian
T
OFFICE OF LOSS
AAP MLAs leave the Election Commission
office; their departure will be a setback for
the Delhi chief minister (on facing page)

| INDIA LEGAL | Fabruary 5, 2018 29
chosen as, and for being a member of
the legislative assembly or legislative
council of a state if he holds any office of
profit under the Government of India or
the government of any state specified in
the First Schedule other than an office
declared by the legislature of the state
by law not to disqualify its holder.
Thus, the constitution, without
defining what constitutes “office of prof-
it”, paves the way for parliament or a
state legislature to decide which office
would disqualify its holder from being a
member. In 2008, a Joint Parliamentary
Committee (JPC) deplored the propen-
sity of the government as well as states
to include an ever-increasing number of
offices under the exemption list. The
Constitution (91st) Amendment Act,
2003 places a ceiling on the council of
ministers in the Union and the states
[Articles 75 (1A) and 164 (1A)], and
prohibits members who were disquali-
fied on grounds of defection from hold-
ing any “remunerative political post” till
they get re-elected under Article 361B.
The JPC felt that the very purpose of
these amendments would be defeated if
one were to liberally interpret the con-
cept of “office of profit” so as to exempt
a very large number of offices from dis-
qualification under Articles 102(1)(a)
and 191 (1) (a).
The difficulty with these constitu-
tional provisions is that they are silent
on the principles to be applied in creat-
ing exceptions to the general rule. The
JPC held that such principles can be
deduced on the basis of general rules of
interpretation, reading the provision as
a whole and bearing in mind the avowed
object. Any interpretation which renders
the provision otiose (serving no pur-
pose), by the second part neutralising
the first part, had to be rejected, it said.
Therefore, it suggested amendments of
these provisions to provide for a com-
prehensive definition of the “office of
profit”, which would be applicable across
the country. The centre is yet to take
the initiative to bring the necessary leg-
islation in parliament.
In theory, the legislator seeks to
ensure the accountability of the
Executive. The restriction on the holder
of the “office of profit” continuing as a
legislator implies that the Executive
could seek to corrupt this role by nomi-
nating him to the post. The JPC on
Office of Profit, constituted in August
1959, examined the composition and
character of all committees of central
and state governments and recommend-
ed which offices should or should not
disqualify a person for being chosen
as/from being an MP. But these periodic
reviews have been insufficient to address
the concerns.
While setting aside the appointment
of 20 AAP MLAs as parliamentary sec-
retaries, the Delhi High Court did not
hold the office of parliamentary secre-
taries void ab initio. The High Court
order dated September 8, 2016 has only
prospective effect from the date of its
pronouncement.
In Hoti Lal v Raj Bahadur (1959),
the Rajasthan High Court held that
even if the appointment was irregular
that would not save a person from dis-
qualification under Article 102. The
AAP MLAs enjoyed the perks from the
date of their appointment, ie, March 13,
2015, till the time the appointment
order was set aside by the High Court.
The MLAs were appointed parlia-
mentary secretaries to ministers of
Delhi. The High Court did not set aside
the creation of the posts of parliamen-
tary secretaries. The EC in its order
dated June 23 last year, held that only
PapersfurnishedbytheDelhigovernment
showthattheparliamentarysecretaries
wereattendingmeetingswhichwerenot
advisoryinnature.Theywereinaposition
toinfluenceandexercisepower.
UNI UNI

30 Fabruary 5, 2018
the appointment of the respondents as
parliamentary secretaries was set aside,
and not the posts of these secretaries.
“In the present case, it is evident that
the respondents (MLAs) were de facto
holders of the office of parliamentary
secretaries, albeit by way of an appoint-
ment order, which was found to be suf-
fering from procedural and legal lapses
and was hence set aside by the Hon’ble
Delhi High Court and therefore, the
question of their disqualification is
maintainable,” the EC order said.
The MLAs challenged this order in
the High Court, which did not pass any
stay order. Therefore, the EC proceeded
with the conduct of inquiry in the refer-
ence case. In their written submissions,
the MLAs submitted that since the High
Court had already held their appoint-
ment as parliamentary secretaries to be
illegal and void, and as their petition
challenging the EC’s order was pending
before the High Court, the stage for fil-
ing written arguments along with the
entire documentary evidence had not
yet been reached, and the same might
not be required. They also maintained
that since the EC’s order dated June 23,
2017 is sub judice, the Commission
could not convene any hearing in the
matter as it might be rendered futile if
the High Court decided the petition in
their favour. The MLAs also said that
Election Commissioner OP Rawat had
recused himself from hearing this mat-
ter, so it was not clear as to how the
quorum would be met to hear the mat-
ter. As their constitutional rights were at
stake, this matter must necessarily be
heard by a full quorum, they pointed
out. The EC concluded that in the ab-
sence of any stay order on the operation
of its order, there was no legal impedi-
ment in passing the present order.
The EC refused to allow cross-exami-
nation of the petitioner/complainant on
the ground that he was not in posses-
sion of any information in his personal
or official capacity nor was he a witness
in these proceedings. The demand for
cross-examination would lead to unnec-
essary delay, the Commission held.
Rawat had recused himself from
hearing this matter due to some unsub-
stantiated allegations of association dur-
ing earlier postings to some political
leader. However, at the instance of the
chief election commissioner, he had
agreed to examine this matter, and with
Sunil Arora joining as Election
Commissioner from September 1, 2017,
a full quorum became available to ren-
der the EC’s opinion.
As the respondents had not made
any substantive submissions on the mer-
its of the case, the Commission served
them a second notice as a last opportu-
nity on November 2, 2017. It requested
the MLAs to submit written submis-
sions with respect to the information
supplied by the Government of National
Capital Territory of Delhi (GNCTD)
with respect to the facts pertaining to
the “office of profit” held by them. The
MLAs furnished a reply on November
20, 2017, wherein they repeated the sub-
missions made in their reply dated
October 16, and the petitioner filed his
In Hoti Lal v Raj Bahadur (1959), the
Rajasthan High Court held that even if
the appointment was irregular that
would not save a person from disqualifi-
cation under Article 102. Raj Bahadur’s
election from Bharatpur parliamentary
constituency was upheld.
In M Ramappa v Sangappa (1958),
the Supreme Court held that an “office
of profit” is an office which is capable of
yielding a profit or pecuniary gain. The
nomination papers of three candidates
for election as members of the state
assembly were rejected by the returning
officer. The Court upheld it.
In Jaya Bachchan v Union of India
(2006), the Supreme Court held that if
pecuniary gain is “receivable” in con-
nection with the office, then it becomes
an “office of profit”. Bachchan (right)
stood disqualified as a member of the
Rajya Sabha even as her counsel, Fali
S Nariman (left), said, “If someone
receives nothing, it is not an ‘office of
profit’ as there is no pecuniary gain.”
In Aires Rodrigues v State of Goa
(2009), the Goa bench of the Bombay
High Court quashed a state assembly
bill to appoint parliamentary secretaries.
The Digambar Kamat-led Congress
government was in power at the time.
In Bimolangshu Roy v State of Assam
(2017), the Supreme Court struck down
a law passed by the Assam assembly
13 years earlier to allow the then
Congress government headed by Tarun
Gogoi to appoint MLAs parliamentary
secretaries after parliament had put a
cap on the number of ministers.
Evolvingdefinition
A look at a few judgments relied on by the Election Commission while
recommending disqualification of the 20 AAP MLAs

| INDIA LEGAL | Fabruary 5, 2018 31
written submissions on December 15.
The EC, therefore, concluded that the
MLAs had nothing further to add, and
decided to render its opinion in the ref-
erence. The grievance of the disqualified
MLAs that they were not heard by the
EC thus lacks merit.
The term “office of profit” is a techni-
cal term which has not been defined in
the constitution or in any law. Certain
tests and factors have been identified by
various court judgments to determine
what constitutes an “office of profit”.
These can be summarised as under:
In M Ramappa v Sangappa (1958), it
was held by the Supreme Court that an
“office of profit” is an office which is
capable of yielding a profit or pecuniary
gain. On the other hand, if a profit does
actually accrue from an office, it is an
office of profit, no matter how it accrues.
In MN Kaul and SH Shakdhar’s trea-
tise, “Practice and Procedure of Parlia-
ment: With Special Reference to Lok
Sabha”, the authors observed: “To exam-
ine whether an office is an office of prof-
it or not, it is not the emoluments alone
that the MLA receives or is likely to rec-
eive if he holds that office that are to be
seen to determine this question. Other
aspects of the matter such as position,
power or patronage enjoyed by the hold-
er of that office are also relevant factors
to be taken into account even though
there might not be any monetary advan-
tage to the holder. The word ‘profit’ does
not necessarily mean any remuneration
in cash. But it certainly means some
kind of patronage or gain which is tan-
gible or which can be perceived.”
The order of appointment of parlia-
mentary secretaries dated March 13,
2015, entitled the MLAs to government
transport (for official work) and office
space in the minister’s office, and not to
any additional emoluments. The parlia-
mentary secretaries were to perform
functions as assigned by the ministers,
some of which were review meetings, or
meetings of an advisory or consultative
nature. In a few meetings, policy fram-
ing or executive decisions were taken,
and in some cases, the committee head-
ed by parliamentary secretaries “decid-
ed” and not recommended on the sub-
ject. In a few cases, the minister delin-
eated his constitutional obligation and if
a minister was absent, the parliamen-
tary secretary presided over the meet-
ing. Thus in many cases, the parliamen-
tary secretaries performed or were per-
mitted to perform the essential or con-
stitutional functions of a minister, which
is a move that attracts disqualification.
In Jaya Bachchan v Union of India
(2006), the Supreme Court held that if
pecuniary gain is “receivable” in connec-
tion with the office, then it becomes an
“office of profit”. The Court dismissed
her petition challenging her disqualifi-
cation as Rajya Sabha MP by President
APJ Abdul Kalam on the recommenda-
tion of the EC. The Court held that
material gains like rent-free accommo-
dation and chauffeur-driven car at state
expense were clearly in the nature of
remuneration and a source of pecuniary
gain and hence, constituted “office of
profit”. Senior counsel Fali Nariman had
appeared for Bachchan. The Election
Commission was wielding the stick as it
was dealing with disqualification of sev-
eral MPs and MLAs, and the issue need-
ed examination.
The petitioner in the AAP case
alleged that the Delhi government liber-
ally spent on furnishing the office rooms
allotted to the parliamentary secretaries.
One such secretary was found to have
four furnished offices. The MLAs were
subsequently given exclusive, designated
offices in the Delhi Legislative Assembly
for which the Public Works Department
spent `11,75,828 from the coffers of the
public exchequer.
The GNCTD in its reply to the EC
revealed that the minister of transport
had constructed office rooms, installed
an intercom, computers, and so on, for
his four parliamentary secretaries and
had further incurred an expenditure
DEMOCRACY’S GATEKEEPERS
President Ram Nath Kovind disqualified 20
AAP MLAs on the EC’s recommendation;
(near left) Chief Election Commissioner OP
Rawat had recused himself from hearing the
matter but later agreed
The91stAmendmentActplacesaceiling
onthecouncilofministers,andprohibits
thosedisqualifiedfordefectionfromhold-
ingany“remunerativepoliticalpost”till
theygetre-electedunderArticle361B.

32 Fabruary 5, 2018
of `3,73,871 for it. Also, rooms and cab-
ins were constructed for these MLAs.
Unlike ministers and other public ser-
vants, parliamentary secretaries were
provided with facilities and perks with-
out any backing of law. Worse, the
MLAs were conferred these perks with-
out even knowing their duties and
responsibilities. These entitlements were
capable of bringing about a conflict
between their duties and interests as
MLAs—the precise vice which attracts
disqualification under Article 102/191
and Section 15 of the GNCTD Act, 1991.
The idea behind the constitutional
provisions is to save the elected repre-
sentatives from the influence of the
Executive as their prime responsibility is
to discharge their legislative functions.
According to the EC’s opinion rendered
in 1953 in a case, if the Executive has
untrammelled powers of offering to
legislatures any appointments, positions,
or offices which carry emoluments,
there would be a clear risk that an indi-
vidual member might feel himself
beholden to the Executive. Thus, he
would lose his independence of thought
and action in his capacity as a member
of the legislature and a true representa-
tive of his constituents.
The facilities—office, car, telephone,
and the like—allowed the respondents
to entertain guests at the cost of the
public exchequer. The appointments
were an indirect device to provide them
with facilities akin to those available to a
minister, the petitioner claimed.
While determining the nature of
profit, what needs to be considered is
the matter of substance rather than the
form. The GNCTD has also stated that
one of the respondents was reimbursed
`15,479 on account of transportation
expenditure. The EC thus held that
office space and chauffeur-driven
car/transport were clearly receivable
material gains to which the respondent
MLAs were entitled after appointment
as parliamentary secretaries. “Such
baseless provision of the facilities to the
parliamentary secretaries, without there
being any duties, amounts to ‘profit’
under the doctrine of ‘office of profit’,”
the EC concluded.
Documents furnished by the GNCTD
showed that the parliamentary secre-
taries were attending meetings which
were not advisory in nature. In fact, they
had participated in the decision-making
process without the sanction of law.
They were in a position to influence and
exercise power and patronage, which
itself amounts to “office of profit” as
envisaged under the law. They were akin
to cabinet ministers and were availing of
facilities and exercising influence over
the administration without the sanction
of law.
The appointment of parliamentary
secretaries resulted in a four-fold
increase in the strength of ministers,
from seven to 28, in gross violation of
the constitutional embargo that there
should not be more than 10 percent of
members as ministers.
Ironically, the parliamentary secre-
taries were also administered oaths of
office by the chief minister, to give the
aura of office to them. For all practical
purposes, they were treated as ministers,
the EC concluded. The EC’s recommen-
dation also relies on the Supreme
Court’s judgments in Bimolangshu Roy
v State of Assam (2017) and Aires
Rodrigues v State of Goa (2009), to but-
tress its conclusion that the MLAs suf-
fered disqualification on the ground of
their brief tenure as parliamentary sec-
retaries. The EC pointed out that in
Punjab, Assam, Gujarat, Maharashtra,
Meghalaya and West Bengal, the office
of parliamentary secretary is covered
under their respective legislation for
removal of disqualification. Therefore,
the president’s refusal to give assent to a
similar bill, passed by the Delhi assem-
bly, is inexplicable in the absence of any
reasons. It is precisely this discrimina-
tion which might weaken the legitimacy
of the disqualification decision by the
president.
TheECpointedoutthatinPunjab,Assam,
Gujarat,Maharashtra,Meghalayaand
WestBengal,theofficeofparliamentary
secretaryiscoveredundertheirrespective
lawsforremovalofdisqualification.
OPTIMISTIC OUTLOOK
Delhi Pradesh Congress president Ajay
Maken (in brown kurta) talks to mediapersons
outside the Election Commission after a
hearing on the “office of profit” issue
UNI

States/ Tamil Nadu/ Rajinikanth & Kamal Haasan
party soon. “My purpose is to challenge
the status quo plaguing TN. I have larg-
er goals, a longer time-frame and it is
not just about contesting elections. I am
getting the political party ready….The
foundation has to be prepared strong for
an organisation to sustain. The actual
launch of the party, naming and agenda
call for a lot more work which is going
on in consultation with thought leaders.”
He added that he would announce the
name of his political party on February
21 and begin his first state-wide tour
from his home town, Ramanathapuram.
Meanwhile, Rajinikanth, 65, ann-
ounced his decision to take the plunge
into politics on December 31 in Chen-
nai. He said: “The system has become
rotten. The need of the hour is spiritual
politics.” He said he would contest in all
234 constituencies in the assembly elec-
tions. “The political climate in Tamil
Nadu has made us hang our heads in
shame. There is widespread corruption
in the state politics and it has made peo-
ple from all other states in India laugh
at us,” he added. But he didn’t announce
the date for launching his political party
nor did he say anything about its princi-
ples and policies.
T
amil Nadu, interestingly, has
always been led by cine stars. The
Dravidian movement, started in
the 1920s, later became the Dravidar
Kazhagam (DK) party in the late 1930s.
Dominated and guided by the late Peri-
yar, called “Thanthai Periyar” (his origi-
nal name was EV Ramasami Nayakar),
the DK stood for the rights of non-Brah-
minical castes in Tamil Nadu. Periyar
himself was an aggressive atheist. But
he did not enter electoral politics. In
1949, the DK faced a split when chief
minister CN Annadurai, popularly
known as “Anna”, broke away from the
mother organisation and launched the
Dravida Munnetra Kazhagam (DMK).
The DMK boycotted the first general
election in 1952, but jumped into
electoral politics in the 1957 elections. It
won 15 seats in the 234-seat state
assembly. In 1967, the DMK captured
What Do the
Stars Foretell?
Thesepoliticalnovicesmustcompetewiththemoney
power,organisationalstrengthandfootsoldiersofthetwo
establishedparties,theAIADMKandtheDMK
By R Ramasubramanian
ITH superstars Raji-
nikanth and Kamal
Haasan announcing
that they will be
entering politics by
launching their own
political parties, an old debate has re-
surfaced— can actors capture political
power in Tamil Nadu in the next assem-
bly elections in May 2021 as easily as in
the past?
Tamil Nadu (TN) is the only state
where in its 47 years of existence from
1969 to 2016, only three people have
W
POLITICAL GAMBLE
Will the huge fan following of Rajinikanth (left)
and Kamal Haasan translate into votes?
become chief ministers. They are
DMK’s M Karunanidhi and AIADMK’s
MG Ramachandran (MGR) and J Jaya-
lalithaa and all were former actors. In
that sense, the present chief minister,
Edappadi K Palanisamy, is the first
Tamil chief minister who isn’t from the
film world.
On November 7, Kamal Haasan said
he was going to start his own political
Cinema.com

States/ Tamil Nadu/ Rajinikanth & Kamal Haasan
power in the state.
The political stalwarts in Tamil
Nadu—Anna, Karunanidhi and MGR—
had thus over two decades of political
experience in the state. They travelled
the length and breadth of the state be-
fore capturing power. Azhi Senthil-
nathan, a political analyst and writer,
told India Legal: “This is the main dif-
ference between them and Rajinikanth
and Haasan. They did not capture po-
wer all of a sudden. The DMK worked
in the state for at least 30 years before
capturing power in Tamil Nadu in the
1967 assembly elections. It took MGR
20 years to come to the helm of affairs,
while it took Jayalalithaa nine years. She
was groomed as a politician by MGR in
1982 and was involved in grassroots-
level politics. She was a Rajya Sabha MP
in the middle 1980s. Though there were
some initial setbacks, Jayalalithaa
fought her enemy, the DMK, tooth and
nail and captured power in 1991.”
However, this is not the case with
Rajinikanth and Kamal Haasan,
Senthil-nathan added. “They may have
fan clubs but they don’t have actual,
ground-level and street-smart politi-
cians on their side. Running a political
party, maintaining an organisational
structure and contesting elections are
not as easy as people think.”
Tamil Nadu has over 66,000 polling
booths and only the DMK and the
AIADMK have the manpower to nomi-
nate booth agents. “Booth committee
management is a major job to be tackled
in electoral politics. Major political par-
ties will strategise and re-strategise this
work constantly, sometimes months
before the actual elections. From where
will Rajinikanth and Kamal Haasan get
these numbers?” asked ex-MLA U Bala-
raman from the Congress.
T
here is also the issue of money
power in Tamil Nadu politics.
The state is known for its “cash
for votes” syndrome. An AIADMK
spokesperson told India Legal: “Today, a
person who wants to contest and win
assembly elections in Tamil Nadu needs
at least `10 crore.” Money power was
evident during the bypoll for RK Nagar,
the assembly represented by Jayalalithaa
till her death in December 2016. TTV
Dhinakaran, a nephew of Jaya’s aide VK
Sasikala, contested from here as an
independent and pulled off a huge victo-
ry. So obvious was the money power that
Election Commissioner OP Rawat
reportedly said that the Commission
needed to take “a very comprehensive
look at the whole system of preventing
abuse of money”.
“If enforcement is strict in one arena,
it raises its head in another arena. So
you are again back to square one. Like
distribution of freebies, distribution of
money. We enforced it so it was not
there. This time in RK Nagar, we could
catch only 23 lakhs. That is all, as
against 89 crores last time,” he said.
While both parties have their own
legal issues to tackle, money power,
orgnisational skills and foot soldiers are
their USPs. In that sense, Rajinikanth
and Kamal Haasan will need great sup-
port to take on these established politi-
cal parties.
In the case of Rajinikanth, the state
BJP is aggressively supporting him in
the hope that before the elections, they
can win him over and stitch up an
alliance. The party commands just two
percent of the vote share in the state.
The BJP has, however, been strongly
critical of Kamal Haasan for his views
on Hindutva and his emphasis on secu-
larism. The party will have an uphill
task in the state which stopped the
Modi juggernaut in the 2014 Lok Sabha
elections. So it is the BJP which desper-
ately needs Rajinikanth and not the
other way around.
There will be interesting times ahead
for Tamil Nadu politics. After all, both
Rajinikanth and Kamal Haasan have
huge fan followings. But the days of
MGR and Jayalalithaa are over.
Will these two novices in the political
firmament be able to make a dent in the
state’s politics? The stars will foretell.
InterestingtimeslieaheadforTamilNadu
politics.Afterall,bothpoliticalnovices
RajinikanthandKamalHaasanhavehuge
fanfollowings.Buttheheadydaysof
MGRandJayalalithaaareover.
VERY MUCH IN THE GAME
TTV Dhinakaran, a nephew of VK Sasikala,
pulled off a victory in the RK Nagar bypoll
34 February 5, 2018
UNI

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36 February 5, 2018
CCORDING to Census
2011, Christians in
Madhya Pradesh comprise
barely 0.3 percent of the
state’s population as
against over 90 percent
Hindus. Yet, this small community of
over two lakh members is under increas-
ing attack from saffron outfits for what
they call “posing a threat to Hindutva”
and three recent attacks on them have
hit national headlines.
In one of the incidents, saffron
activists went on the rampage because a
college run by Christians in Vidisha dis-
trict, St Mary's PG College, disallowed
them from singing a prayer inside the
campus on January 16.
In the second case, carol-singing
priests and seminarians in Satna were
attacked by right-wing groups ahead of
Christmas and accused of religious con-
version. The police detained the priests
instead of taking action against the
attackers. The third incident took place
in Ratlam district on January 15 when
Hindutva organisations called a bandh
to protest a missionary school’s decision
to penalise 20 students for “showing
disrespect to patriotic songs”. The pro-
testers, however, alleged that the stu-
dents were punished for chanting
“Bharat Mata ki jai”.
It was such attacks that forced the
Madhya Pradesh Catholic Diocesan
Schools’ Association to move Jabalpur
High Court on January 15 seeking pro-
tection for their educational institutions.
It alleged that the students’ body affiliat-
ed to the ruling BJP was trying to whip
up communal tension. The secretary-
general of the Catholic Bishops
Conference of India (CBCI), Theodore
Mascarenhas, said that institutions run
by the Christian community were being
increasingly targeted by the Akhil
Bharatiya Vidyarthi Parishad.
ABVP activists’ attempt to target St
Mary’s PG College in Vidisha has added
significance because the district is under
the parliamentary constituency of Union
External Affairs Minister
Sushma Swaraj. This Lok
Sabha seat is considered
a strong BJP fortress and
in the past sent former
prime minister Atal
Bihari Vajpayee and
Madhya Pradesh Chief
Minister Shivraj Singh
Chouhan to parliament.
However, neither
Swaraj nor Chouhan
have spoken about the
incident, much less as-
sured the college admin-
istration of protection.
The area has a minuscule
Christian population and
no history of religious
conversion.
More significant, the
Crusading in Court
Withthissmallcommunityunderincreasingattackinthestate,theCatholicAssociationhas
movedtheJabalpurHighCourtseekingprotectionforitseducationalinstitutions
By Rakesh Dixit in Bhopal
A
States/ MP/ Attacks on Christians
ANI
WAR OVER WORSHIP
ABVP activists outside St
Mary’s PG College, Vidisha

India Legal 05 February 2018

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