India Legal 05 March 2018

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ILL and Melinda Gates, the known
universe’s richest power couple—until
they recently surrendered that posi-
tion by a hair’s breadth to Amazon
Czar and Czarina Jeff and MacKenzie
Bezos—don’t seem to share the prevailing pes-
simism about where our world is headed. Given
the daily overdose of news about climate change,
increasing violence, war and pestilence, the ra-
pid destruction of the rule of law under authori-
tarian jackboots, resurgent racism, terror…most
of us seem to take for granted that we are on a
one-way ticket to hell.
But, surprise, surprise…the Microsoft wun-
derkinds Melinda and Bill don’t seem to think
so. In fact, they put their money where their
mouth is by investing more and more of their
wealth into charity, in particular the Bill &
Melinda Gates Foundation which has a large
presence in India, a country of which Gates is a
personal fan and unabashed admirer because of
its ingenuity, scientific temper and the high-tech
orientation of its younger generation.
A hallmark of India is its investment in the
thoughtful application of scientific and techno-
logical advances to meet the needs of the poorest
populations, Gates believes. On a recent visit to
India, Bill Gates explained why he is “an opti-
mist about India”. The country, he told the
National Institute for Transforming India, is
“taking technology, including digital technology,
and using it” to “write a new chapter in the his-
tory books about how a people and country can
rise to big challenges”.
You don’t invest in a losing proposition.
That’s common sense. Yet the Gates’ continue
investing in the world in the belief that they’re
backing a winning horse. In fact, that’s where
a lot of their wealth has gone. They recently
donated $4.6 billion worth of shares in
Microsoft Corp, making this his largest
donation in 17 years. Earlier, the philanthropist
donated $64 million, according to a Securities
& Exchange Commission filing reported
by Bloomberg.
Bill’s total number of gifts to charitable dona-
tions amount to $50 billion, according to CNBC.
His last contribution of this size came in 2000
when he gave away $5.1 billion worth of Micro-
soft shares. Just a year earlier, he gave away $16
billion worth in shares. Forbes estimates his cur-
rent net worth at about $90 billion.
It has been a practice for Melinda and Bill to
release each year a joint letter about what they
believe should determine the priorities to make a
better world. It is their private “State of the
Union” message. And this year’s message is opti-
mistic and upbeat notwithstanding develop-
ments in US politics, political upheavals in
Europe, civil wars and tidal waves of refugees.
T
heir letter—their 10th annual missive—
released last week, trumpets their “out-
spokenness about our optimism. The
headlines are filled with awful news. Every day
brings a different story of political division, vio-
lence, or natural disaster, or sexual harassment”.
Despite the headlines, “we see a world that’s
getting better”. They compare today to the way
things were a decade or a century ago. And they
find the world healthier and safer than ever.
“The number of children who die every year has
been cut in half since 1990 and keeps going
down. The number of mothers who die has also
dropped dramatically. So has extreme poverty—
declining by nearly half in just 20 years. More
children are attending school. The list goes on
and on.”
The letter is so eminently quotable that para-
phrasing it in precis form would do it injustice.
Here are a few memorable lines:
“Being an optimist isn’t about knowing that
life used to be worse. It’s about knowing how life
can get better. And that’s what really fuels our
optimism. Although we see a lot of disease
and poverty in our work—and many other big
THE ACHHE DIN
OF BILL & MELINDA
Inderjit Badhwar
Letter from the Editor
B
| INDIA LEGAL | March 5, 2018 3

problems that need to be solved—we also see
the best of humanity. We spend our time learn-
ing from scientists who are inventing cutting-
edge tools to cure disease. We talk to dedicated
government leaders who are being creative
about prioritizing the health and well-being of
people around the world. And we meet brave
and brilliant individuals all over the world
who are imagining new ways to transform
their communities.”
That’s their response when people ask them
how they can be so optimistic. “It’s a question
we’ve been getting more and more, and we think
the answer says a lot about how we view the
world.” Here are excerpts from “tough questions”
people throw at them along with the answers:
Why don’t you give more in the United States?
Melinda: Our foundation spends about $500
million a year in the United States, most of it
on education. That’s a lot, but it is less than
the roughly $4 billion we spend to help develop-
ing countries.
Take vaccines. We assumed that since it was
possible to prevent disease for a few cents or a
few dollars at most, it was being taken care of.
But it turned out that we were wrong, and tens
of millions of kids weren’t being immunized
at all.
Why don’t you give money to fight climate
change?
Bill: We do! Some of it involves our foundation,
and some of it involves our own personal invest-
ments. Personally, we’re investing in innovations
that will cut back on greenhouse gases (what’s
called climate-change mitigation). The world
needs new sources of reliable, affordable
clean energy, but it has been dramatically under-
funding the research that would produce these
breakthroughs.
Hundreds of millions of people in developing
countries depend on farming for their liveli-
hoods. They had almost nothing to do with caus-
ing climate change, but they will suffer the most
from it. When extreme weather ruins their har-
vest, they won’t have food to eat that year. They
won’t have income to spend on basic necessities
like healthcare and school fees. For smallholder
farmers, climate change is not just an ominous
global trend. It is a daily emergency.
Are you imposing your values on other cultures?
Bill: On one level, I think the answer is obvious-
ly no. The idea that children shouldn’t die of
malaria or be malnourished is not just our value.
It’s a human value. Parents in every culture want
their children to survive and thrive.
Melinda: We’re acutely aware that some devel-
opment programs in the past were led by people
who assumed they knew better than the people
they were trying to help. We’ve learned over the
years that listening and understanding people’s
needs from their perspective is not only more
respectful—it’s also more effective.
Does saving kids’ lives lead to overpopulation?
Melinda: We asked ourselves the same question
at first. Hans Rosling, the brilliant and inspiring
public health advocate who died last year, was
great at answering it. I wrote about the issue at
length in our 2014 letter. But it bears repeating,
because it is so counterintuitive. When more
children live past the age of 5, and when mothers
can decide if and when to have children, popula-
tion sizes don’t go up. They go down. Parents
have fewer children when they’re confident those
children will survive into adulthood. Big families
are in some ways an insurance policy against the
tragic likelihood of losing a son or a daughter.
We see this pattern throughout history. All
over the world, when death rates among
children go down, so do birth rates. It happened
in France in the late 1700s. It happened in Ger-
many in the late 1800s. Argentina in the 1910s,
Brazil in the 1960s, Bangladesh in the 1980s.
Bill: There’s another benefit to the pattern
Melinda describes—first more children survive,
then families decide to have fewer children—
Letter from the Editor
4 March 5, 2018
Ithasbeenapractice
forMelindaandBill
Gates(above)to
releaseeachyeara
jointletteraboutwhat
theybelieveshould
determinethe
prioritiestomakea
betterworld.Itistheir
private“Stateofthe
Union”message.
Photos: UNI

which is that it can lead to a burst of economic
growth that economists call “the demographic
dividend”. Here’s how it works.
How are President Trump’s policies affecting
your foundation’s work?
Bill: In the past year, I’ve been asked about
President Trump and his policies more often
than all the other topics in this letter combined.
For decades the United States has been a
leader in the fight against disease and poverty
abroad. These efforts save lives. They also create
US jobs. And they make Americans more secure
by making poor countries more stable and stop-
ping disease outbreaks before they become pan-
demics. The world is not a safer place when
more people are sick or hungry.
President Trump proposed severe cuts to for-
eign aid. To its credit, Congress has moved to put
the money back in the budget. It’s better for the
United States when it leads, through both hard
power and soft power.
I believe one of the duties of the president of
the United States is to role model American val-
ues in the world. I wish our president would
treat people, and especially women, with more
respect when he speaks and tweets. Equality is
an important national principle. The sanctity of
each individual, regardless of race, religion, sex-
ual orientation, or gender, is part of our coun-
try’s spirit. The president has a responsibility to
set a good example and empower all Americans
through his statements and his policies.
Is it fair that you have so much influence?
Melinda: No. It’s not fair that we have so much
wealth when billions of others have so little. And
it’s not fair that our wealth opens doors that are
closed to most people. World leaders tend to
take our phone calls and seriously consider what
we have to say. Cash-strapped school districts are
more likely to divert money and talent toward
ideas they think we will fund.
Even though our foundation is the biggest in
the world, the money we have is very small com-
pared to what businesses and governments
spend. For example, California spends more than
our entire endowment just to run its public
school system for one year.
There’s another issue at the heart of this
question. If we think it’s unfair that we have so
much wealth, why don’t we give it all to the gov-
ernment? The answer is that we think there’s
always going to be a unique role for foundations.
They’re able to take a global view to find the
greatest needs, take a long-term approach to
solving problems, and manage high-risk projects
that governments can’t take on and corporations
won’t. If a government tries an idea that fails,
someone wasn’t doing their job. Whereas if we
don’t try some ideas that fail, we’re not doing
our jobs.
Why are you really giving your money away—
what’s in it for you?
Bill: It’s not because we think about how we’ll be
remembered. We would be delighted if someday
diseases like polio and malaria are a distant
memory, and the fact that we worked on them
is too.
There are two reasons to do something like
this. One is that it’s meaningful work. Even
before we got married, we talked about how we
would eventually spend a lot of time on philan-
thropy. We think that’s a basic responsibility of
anyone with a lot of money. Once you’ve taken
care of yourself and your children, the best use of
extra wealth is to give it back to society.
Maybe 20 years ago, we could have made a
different choice about what to do with our
wealth. But now it’s impossible to imagine. If
we’d decided to live a different life then, we
wouldn’t be us now. This is who we chose to be.
Editor’s Comment: The true meaning of com-
mitment to Achhe Din by
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Inthepastyear,I’ve
beenaskedabout
PresidentTrumpand
hispoliciesmoreoften
thanalltheothertopics
inthislettercombined.
Heproposedsevere
cutstoforeignaid.
Toitscredit,Congress
hasmovedtoputthe
moneybackinthe
budget,”says
BillGates.

ContentsVOLUME XI ISSUE 16
MARCH5,2018
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Technical Executive Anubhav Tyagi
6 March 5, 2018
How Deep is the Rot?
The Nirav Modi scam has exposed the vulnerability of India’s banking sector, reeling under a
staggering burden of debt. How deep is the rot and can it be stemmed?
LEAD
12
SUPREMECOURT
Autonomy is Key
A petition seeks directions to
the centre to make the
Election Commission of India
independent so that it can
ensure free and fair elections,
a basic need for democracy to
function and an important
feature of the constitution
22

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Followuson
Facebook.com/indialegalmedia
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
International Briefs..........39
Media Watch ..................48
Satire ..............................50
Cover Design
ANTHONY LAWRENCE
Centre Backpedals
In the face of numerous instances of Aadhaar glitches, the UIDAI
has backtracked and said other papers would do for authentication
24
“Unshakeable Constitution”
Speaking at the India
Legal Show, former
Supreme Court judge
Justice VS Sirpurkar
assured the audience
that Indian jurisprudence
and democracy will
stand the test of time
and thus cannot be
brought into peril
30
SPOTLIGHT
Two teenagers have moved the Chhattisgarh
High Court seeking justice for victims of
alleged fake encounters. There are indications
that it could prove to be a landmark case
46
40
Divided We Change
Justice AK Mittal’s elevation as chief
justice of the Delhi High Court was
delayed twice due to dissension
within various collegiums. It could be
used by the government to press for
revisions in judges’ appointments
28
Citizens in the
Crosshairs
Karnataka’s Big Fight
The Congress is doing all that it can to retain power in the last large state under its
rule even as the BJP tries to revive its victory march
POLITICS
Kerala has appealed to the top court to
solve the vexed problem of canine maul-
ings and bites. A state government plan
conceived in 2016 may have the answers
Who Let the
Dogs Out?
44
COURTS
Defence Dilemmas
With an armyman’s father moving court, will the plummeting ties
between the forces and the people jeopardise national security?
32
MYSPACE
Striking at the Heart
In the Economic Survey, the government accepts the need to address pendency. This,
and the inability to fill judge vacancies, may shake citizens’ confidence in rule of law
36
FOCUS
STATES

8 March 5, 2018
“
RINGSIDE
“Have you seen my
(party’s) flag and
symbol? It has the
map of new South
India. Those six
hands represent the
six southern states.
The star in the mid-
dle with six pointers
represent truth,
people and justice,”
—Actor Kamal
Haasan at a func-
tion to launch his
political outfit,
Makkal Needhi
Maiam
“We said, ‘If you
fire, you will have to
face the conse-
quences. If you kill,
the result won’t be
good for you. We
can see the results
today. Criminals are
moving around on
the streets holding
up placards saying ‘I
am not a criminal.’”
—UP CM Yogi
Adityanath on how
law and order has
improved consider-
ably in the state
“The Congress gave
us five Gandhis in
60 years while the
BJP has given us
three Modis in four
years. So the BJP
wins on the
Duckworth-Lewis
method.”
—Trending on
social media
“Every sport has
its space. The surge
in leagues and the
rising sponsorships
in sports other
than cricket are
ample proof...”
—Minister of youth
affairs and sports
Rajyavardhan Singh
Rathore on how
cricket is no longer
the dominant sport
“It isn’t Pakistan
alone, it is China
too. General (Bipin
Rawat) said that the
Army is ready to
fight on both fronts.
But there aren’t two
fronts anymore.
Now it is one single
front, circling
around.... Pakistan
and China aren’t
separate”
—J&K minister
Naeem Akhtar, on
China too playing a
role in Kashmir
“We are refraining from doing new deals while
my father is in office. We are turning down
deals worth hundreds of millions of dollars
around the world."
—Donald Trump Jr, on how a real estate firm owned
by the Trump family is faring after his father, Donald
Trump, became US president
“The issue is of dig-
nity of all govern-
ment employees....
all our resolutions
in Delhi are jointly
on behalf of DASS,
DANICS and IAS
associations.”
—Manisha Saxena,
secretary, IAS
(AGMUT) Officers’
Association, on the
strike by Delhi
bureaucrats after the
chief secretary was
allegedly assaulted
by AAP MLAs
“The first important
question is with
regard to the lack of
ethics.... Therefore,
it is incumbent on
us, as the state, till
the last legitimate
capacity to chase
these people to the
last possible conclu-
sion...”
—FM Arun Jaitley
while addressing
PSU banks after the
PNB bank fraud

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
TRUMP LEGACY
Despite the optimism
reflected in official state-
ments, the Doklam incident
involving Chinese troops
and build-up on the border
has left deep psychological
scars and caused virtual
panic in South Block. The
result is that for the first
time, prior to the annual
boundary talks between
Bhutan and China (due
next month), top officers
from India have flown into
Thimpu to brief the Bhutan
government on the stand
they should take. They
included National Security
Adviser Ajit Doval, Chief of
Army Staff Bipin Rawat and
foreign secretary Vijay
Gohkhale. The icing on the
cake was the pledge that
Prime Minister Modi will
pay an official visit to
Bhutan later this year.
THE DOKLAM
EFFECT
His designation may be Additional
Principal Secretary but PK Mishra is
seen as the most powerful person
in the PMO—he served many years
in Gujarat as the then chief minister
Narendra Modi's right hand man.
Not surprisingly, the wedding of
Mishra’s son last week was a high
profile affair with the who’s who of
government and business, includ-
ing everyone who matters in the
PMO (the PM was out of town), gathered at
the Airports Authority of India Institute in New
Delhi. The gossip was about two subjects—
Nirav Modi and the name of the next cabinet
secretary. The wedding invite clearly stated
“no gifts” but everyone came with presents,
leading to jokes about packets that looked
like jewellery boxes and whether they had
the Nirav Modi stamp on them. The choice of
cabinet secretary, according to the power hit-
ters present, had narrowed down to frontrun-
ner Finance Secretary Hasmukh Adhia,
petroleum secretary KD Tripathi and dark
horse, Commerce Secretary Rita Teaotia.
MARRIAGE WOWS
There is underway a mass
political movement in the
heart of the capital—the
shifting of party headquar-
ters out of Lutyens’ Delhi.
This followed a Supreme
Court directive asking par-
ties to vacate official bunga-
lows located in Delhi’s most
prized location. The BJP
moved from Ashoka Road
and inaugurated its spank-
ing new headquarters on
Deen Dayal Upadhyay Marg
last week on its plot allotted
by the UPA government. The
Congress has delayed its
shift to a nearby location but
will have to give up four gov-
ernment bungalows it occu-
pies—24, Akbar Road, the
party headquarters, 26
Akbar Road (officially a Seva
Dal office), 5, Raisina Road,
the Youth Congress office,
and C-II/109, Chanakyapuri,
which is occupied by
Vincent George, Sonia
Gandhi’s close aide.
MOVING HOUSE
Before he became President,
Donald Trump flew to India to
inaugurate one of his real
estate projects here. The
glossy brochures released
then had photos of Trump and
his family, including Ivanka, in
the Trump Tower in Manhattan.
His son, Donald Trump Jr was
in India to inaugurate the glitzy
new Trump high rise in
Gurgaon. The brochure, how-
ever, is different—President
Trump’s name and image, as
well as that of his daughter
Ivanka, who joined his admin-
istration, has been removed
from brochures, websites and
billboards from projects in
India and elsewhere in the
world, under US law. Trump Jr
is a private citizen so there are
no rules that prohibit him from
pursuing his business inter-
ests, even though President
Trump is still a beneficial owner
of the family business. India is
the Trump Organisation’s
biggest international market,
with four real estate projects
underway. The Trump family
earned as much as $3 million
in royalties in 2016 from ven-
tures in India, according to the
President's financial records.

The Supreme Court sought a response
from its registry on a petition questioning
Rule 7B of the Supreme Court Lawyers’
Chambers (Allotment and Occupancy) Rules.
Petitioner Vishnu Shankar Jain, who is also
an advocate-on-record, pleaded that the rule
was discriminatory and violated fundamental
rights. The Court, however, did not stay
the Rule, which says that a chamber in the
Court premises, allotted in the name of an
advocate, is automatically passed on to
his/her child or spouse, provided the con-
cerned person is a lawyer of the apex court.
The Court, however, in a notice issued in
October last year had stated that the number
of appearances and seniority level of a
lawyer must be taken into account before
allocating any chamber.
The petitioner claimed that the Rule “over-
rides” the stipulations and denies level-play-
ing field to other advocates. Are these cham-
bers “heritable property”, the petition asked.
Courts
10 March 5, 2018
Malayalam actor Priya
Prakash Varrier got pro-
tection from the Supreme
Court against any criminal
proceedings against her and
the director and producer of
the Malayalam film Oru
Adaar Love. An FIR has been
filed in Telengana while crim-
inal complaints have been
lodged in Maharashtra relat-
ed to a promotional song of
the film, which is yet to
be released.
The Court stayed all
criminal action against them
in all states if it was based
on the promotional song or
related to her participation in
it. Neither will any such
police complaint be taken
cognizance of, the bench
ruled. Varrier and others had
challenged the FIR and crim-
inal complaints against the
lyrics of the song, which had
allegedly hurt Muslim senti-
ments, in the top court. The
petitioners pleaded that the
allegation was wrong, based
on misinterpretation of an
already popular song in
Kerala. They also pleaded
that filing of FIR and criminal
complaints violated their fun-
damental rights.
Actress Varrier gets relief
—Compiled by Prabir Biswas
UPSC can’t reveal
marking system
The Supreme Court has ruled
that RTI can’t compel the
Union Public Service Commi-
ssion, which holds the civil serv-
ices examination, to disclose
details about marks awarded and
the scaling system. The Court
was referring to a petition that
wanted comprehensive informa-
tion on marks awarded to exami-
nees and the results of all candi-
dates in the 2010 Civil Services
Preliminary Examination. The peti-
tion was filed by a group of failed
candidates. They had earlier
approached the Delhi High Court,
which had asked UPSC to furnish
all information within a fortnight.
UPSC then challenged the order in
the apex court.
The Court quashed the High
Court order, agreeing with UPSC
that such a step was uncalled for.
“Weighing the need for trans-
parency and accountability on the
one hand and requirement of opti-
mum use of fiscal resources and
confidentiality of sensitive infor-
mation on the other, we are of the
view that information sought with
regard to marks in Civil Services
Exam cannot be directed to be
furnished mechanically,” it said.
In a landmark judgment that could help bring
down the large number of vacancies for
judges, the Supreme Court ruled that retired
judicial officers can be appointed as judges
of any high court under Article 217(2)(a) of
the Constitution.
The Court further said that additional
judges can also be appointed to high courts
provided that their tenure is of less than two
years and the appointment is done in con-
formity with provisions laid down under
Article 224 of the Constitution.
The judgment, passed by a bench of
Justices AK Sikri and Ashok Bhushan, fol-
lowed a petition filed by advocate Sunil
Samdaria, who had challenged the appoint-
ments of two additional judges—Justices
Virendra Kumar Mathur and Ram Chandra
Singh Jhala—to the Rajasthan High Court.
The top court has upheld the appointments
of these two additional judges.
SC chamber allotment in question
Retired judicial officers
can be HC judges: SC

Lead/ India’s Banking System
12 March 5, 2018
TheNiravModi-PNBscamandothersbeforeithaveshownthatlaxcorporategovernance,
dishonestofficialsandsuaverogueshavebledthebankingsector,leadingtohugeNPAs.
Nothingshortofdrasticreformsandpunishmentwillcleanupthisvitalsector
By Kingshuk Nag
How Deep is
the Rot?
Photos Courtesy: Facebook

N a TV discussion post Nirav
Modi, one panellist pointed out
how none of the three last RBI
governors who wrote books—
where they discussed banking and
other matters—referred to the ris-
ing NPAs (non-performing assets)
at any great length. This is a trifle
strange considering that the bad debts
of banks is growing exponentially and
stands at a staggering `9.5 lakh crore
presently! Considering that loans of `6
lakh crore have been written off in the
last few years, this would imply that
NPAs would be `15.5 lakh crore. “They
are standing on Eiffel Tower and their
vision does not extend to the happen-
ings on the ground,” wryly comments
former managing director of State Bank
of Hyderabad Santanu Mukherjee. By
implication, when the chief regulator of
the banking system is not focused on
rising bank scams, the entire system is
lax—right down to individual banks.
In an honest system, an NPA reflects
the inability of the loanee to pay back
what he has borrowed due to the failure
of the business in which the money is
invested in. But in India, many NPAs
are because the intention of the loanee
may be to defraud the system. “Loans
are given against collaterals such as
plant and machinery. Often times, they
are overvalued on books with the con-
nivance of bank managers to get a high-
er amount of loan. Project costs are
overstated and some part of the loan
from banks is siphoned off by promot-
ers,” says an assistant general manager
of State Bank of India (SBI) who didn’t
want to be named. “This process of
obtaining fraudulent loans has acceler-
ated since 2002-03 when a group of
specialised investment managers has
emerged. Some of them liaise with
banks to procure funds for projects
which might not be financing worthy,”
says Amitabha Guha, a retired deputy
managing director of SBI.
I
HIS GALLERY: (Clockwise from far left)
Celebrities showcasing jewellery made by
Nirav’s companies; in a photo with PM Modi
at Davos; with Prince Charles
UNI

14 March 5, 2018
In this scenario, the Nirav Modi-
PNB scam has added a new dimension
to bank frauds. The basic facts about the
fraud—which have now been widely dis-
cussed—centres on the Letters of
Undertaking (LoU) issued by the Brady
Road branch of Punjab National Bank
(PNB) in Mumbai in favour of diamond
trader Nirav Modi’s companies without
insisting on any collateral since 2011.
What is more, deviating from the nor-
mal practice of giving LoUs to diamond
exporters for only 90 days, PNB was
extending it for 365 days for Modi’s
companies. The scam is preliminarily
estimated to be over `11,000 crore. With
the LOUs—by which PNB stood
guarantee—Nirav Modi’s companies
were able to get loans from banks to
whom they were issued. These include
Union Bank, Axis Bank, Allahabad
Bank, Canara Bank and the Bank
of India.
T
hough the loans were made to
purchase diamonds overseas, it is
suspected that much of it was
diverted for other uses. Also named with
Nirav Modi in the FIR filed by the CBI
is his maternal uncle, mentor and part-
ner Mehul Choksi.
He is believed to be the mastermind
of the high-profile business that had
roped in top Bollywood actresses like
Priyanka Chopra to endorse the brand
of diamond jewellery that went by Nirav
Modi’s name (see box).
The scam was enabled by an interna-
tional system called SWIFT (Society for
Worldwide Interbank Financial Teleco-
mmunications) which was set up in
1973 with its headquarters in Belgium.
This platform is used by 11,000 financial
institutions in 200 countries and terri-
tories to facilitate swift transfer of
funds. This, in turn, enables easy busi-
ness transactions.
Compared to 2.4 million SWIFT
messages per day globally in 1995, the
number has shot up to 17 million per
day. Due to the sheer volumes of the
messages, it is imperative that banks
which use SWIFT have a strong regula-
tory mechanism. PNB obviously did not
have any. As a result, deputy manager
Gokulnath Shetty was able to send mes-
sages using his SWIFT code but bypass-
ing the official system.
“When funds are transferred on the
basis of a SWIFT message, there should
be a counter entry in the Nostro account
to reflect the foreign currency transfer.
In all fairness, due to the huge volume
of SWIFT messages, there is a gap in
the reconciliation of accounts which
should be done at the end of the day.
The shortage of staff is the prime rea-
son for this,” confides a deputy gener-
al manager of the Bank of Baroda.
“We have now been advised post the
PNB scam that the reconciliation
should be on a daily basis,” says a sen-
ior manager of SBI. He adds: “Let’s
see whether this can be done effec-
tively with such huge volumes.”
Although the original assessment
was that a compromised Gokulnath
Shetty was acting solo, this view had to
be revised. First, he had been on the
same desk for seven years, helping him
cover his tracks. The issue was who
allowed him to continue undisturbed for
so long on the desk and how come
nobody noticed the huge transactions.
“There were huge supervisory lapses. No
processes were being followed. Huge
credits in the Nostro account should
have stood out like a sore thumb to the
top management and the board. The
entire lot should be sacked and crimi-
nally prosecuted,” says a long WhatsApp
message doing the rounds in PNB after
the scam broke out. “I don’t think the
chairman of PNB should have reason to
know, but certainly it should have come
to the notice of the general manager or
module head who is the brand con-
troller and supposed to independently
inspect the branch once in a quarter,”
says Guha, who incidentally was deputy
managing director in charge of inspec-
tions (internal audit) at SBI before
I
n the light of Nirav Modi’s `11,300-
crore fraud on Punjab National Bank
(PNB), it was reported that actress
Priyanka Chopra, who was the brand
ambassador for Nirav Modi Jewels,
may cancel and terminate her contract
with his company.
Her legal team has charged Modi
with defrauding her and not paying her
dues for endorsement and an adver-
tisement that also featured actor
Sidharth Malhotra, who is also planning
to sue Modi for the same reason.
In this regard, two legal issues arise:
What is the liability of the brand ambas-
sador in this case and under which
section of the Indian Contract Act can
Priyanka sue Modi for non-payment
of dues?
Liabilities of a brand ambassador
are covered wholly by the contract bet-
ween the endorser and the company
Brandsandtheirambassadors

retirement. After Shetty, many other
officials of PNB have been arrested.
For decades together, the SWIFT sys-
tem of transmitting messages was reput-
ed to be foolproof, but now with the
PNB scam, there is suspicion that simi-
lar frauds may be taking place in other
banks undetected.
I
n fact, proof of it came barely days
after the PNB scam when a small
private bank, City Union Bank,
reported that it suffered “three fraudu-
lent remittances of nearly $2 million”,
and that “no entries were made in the
ledger of the banks and had been
pushed through SWIFT”. Though no
official was named in the fraud, City
Union Bank also had its equivalent of
Gokulnath Shetty.
“Scams are rising because the quality
and integrity of senior managers in
banks is declining. When a young man
joins as a Probationary Officer, he is
full of enthusiasm. But very soon, he
falls in line with the system where pro-
motions depend on the bosses, many of
whom are compromised. And the more
senior he becomes, the more compro-
mises he has to make,” says a 55-year-
old chief manager of a PSU bank who
found himself at the wrong end of the
stick because of his inability to
make compromises.
“It is different from the government
where directly recruited Grade A (Class
One) officers will go up to a fairly senior
position on a time scale before ‘selec-
tions’ are kicked off. For IAS and other
central services officers, this will be from
the level of joint secretary. So you are at
nobody’s mercy and can be honest. But
in PSU banks, you are at the mercy of
bosses from your first promotion
onwards,” says a management officer of
UCO Bank.
The most telling example of how top
bank managers compromise is demon-
strated by how Vijay Mallya secured a
`950 crore loan from IDBI Bank in
2009. By then, Kingfisher Airlines was
already making huge losses and eroded
its entire capital base and no banker in
his proper mind would loan out money
for the ailing company. At this point,
Mallya, who was also a Rajya Sabha MP,
approached IDBI Bank. Its chairman,
Yogesh Agarwal, was allegedly spoken to
by someone who mattered in North
Block. Believed to be a highly ambitious
man, Agarwal started off as a probation-
ary officer in SBI and rose to the level of
managing director, but desired to be
chairman. However, he was beaten to
the post by his batchmate, OP Bhatt.
Agarwal left SBI to join IDBI as the top
boss. The help of crucial North Block
officials was of prime importance here.
On examining Kingfisher Airlines’
papers, Agarwal realised that the airline
could not be lent money without proper
collaterals. Strangely enough, Mallya’s
team came out with a report from a for-
eign consultant that valued the net
worth of the Kingfisher brand name
and with each brand, the terms and con-
ditions vary. In this case, Modi is liable
for the fraud committed against PNB. But
as this is not related directly with Nirav
Modi jewellery, Priyanka is not liable.
When a brand ambassador finds out
about the fraudulent nature of the owner
of the company he/she endorses, he/she
is at liberty to end ties with the brand.
There have been other examples of
celebrities ending their contract for the
same reason. For example, cricketer MS
Dhoni ended his association with the
Amrapali Group and Amitabh Bachchan
with Nestle after the Maggie noodles
scandal broke out. Nonetheless, in June
2017, an FIR was registered against
Bachchan for endorsing Maggi.
Coming to Priyanka, she can sue Ni-
rav Modi under Section 73 of the Indian
Contract Act that deals with breach of
contract. This section provides that if one
party fails to perform his or her duty, then
other party is at the liberty to end the
contract and claim compensation in case
some damage has been incurred.
—By Srishty Raj
CO-CONSPIRATOR
(Above) Retired deputy manager of Punjab
National Bank Gokulnath Shetty;
Enforcement Directorate officials sealing the
Gili showroom in Thane
UNI

16 March 5, 2018
at `4,000 crore! On this basis, IDBI
loaned `950 crore to Kingfisher to shore
up its operation. But according to an
Enforcement Directorate chargesheet in
2017, the top management of IDBI Bank
conspired with Mallya to give out this
loan. Much of the loan amount was not
used for reviving Kingfisher but diverted
for other purposes and some of it was
transferred overseas, as per the
chargesheet. Agarwal was made the
chairman of Pension Fund Regulatory
and Development Authority after he
retired from IDBI. He was arrested after
Mallya scooted from India and there
was ruckus about la-affaire Kingfisher.
The Indian government is now fight-
ing a legal battle in a London court to
extradite Mallya. But the way it is pro-
ceeding, there is little hope of getting
Mallya back home. Similar may be the
case with Nirav Modi. There are
rumours that he may be holed up in
either Dubai, New York or Hong Kong.
Wherever NiMo, the new nickname for
Nirav Modi, may be hiding, he is still
showing the thumb at PNB. In a letter
to PNB after the scam broke out, he
asserted that the bank’s “overzealous-
ness” had shut the doors on his ability to
clear dues (that he claimed was only
around `5,000 crore) by damaging the
brand value of his businesses.
In the case of another absconder,
Jatin Mehta, he and his family are holed
up in St Kitts in the Caribbean islands
with whom India has no extradition
treaty. Mehta was the promoter of
Winsome Diamonds and Jewellery
Limited and had defaulted on repay-
ment of a ` 7000-crore loan granted by
TheNiravModi-PNB scamhasaddeda
newdimensiontobankfrauds.Taxpayers
willhavetobearthebruntofthecolossal
lossinthebalancesheetofPNBand
othernationalisedbankshitbythescam.
AseniorvigilanceofficerwiththeSBIexplainshowNirav
Modi’sfraudonPunjabNationalBankwouldhaveunfolded
By Sujit Bhar
The Anatomy
of a Bank Scam
HE entire Nirav Modi affair
may seem right out of an
Arabian Nights tale. How-
ever, according to a former
vigilance chief of India’s
largest public sector bank,
State Bank of India, it is impossible to
keep such large chunks of transaction
out of the core banking system’s knowl-
edge without being red flagged, unless a
whole line of people starting from Pun-
jab National Bank manager Gokulnath
Shetty to people near the very top have
had been complicit in the crime.
In the long run, as both sides—
banker and client—ignored acceptable
norms of risk appetite, Nirav Modi and
the banker suddenly found themselves
riding a tiger. There remains a theoreti-
cal possibility that the jeweller may still
be able to square his commitments to
the bank and get his business and credi-
bility right back on its feet. As this ex-
vigilance officer pointed out: “Consider-
ing the huge profile Nirav Modi used to
enjoy around the world, it is inconceiv-
able that he went out with the express
and only purpose of scamming a bank.
It was an unavoidable corollary to his
illegal actions and greed.”
T
FAKE HONOUR? Satish K Nagpal,
chief vigilance officer, PNB, receiving the
Vigilance Excellence Award from Vice
President Venkaiah Naidu in Delhi last year

In a telephonic conversation, the offi-
cer told India Legal: “I guess that was
the day I realised, that even as a senior
person involved in the process of clean-
ing up banking operations, I was work-
ing with my hands tied behind my back,
so to say.” The officer, for obvious rea-
sons, has chosen to remain anonymous.
This former minster has been and
remains one of the most respected and
influential politicians of the country.
Therefore, it stands to reason in the
Nirav Modi case that while there must
have been a long line of people in the
banking world whose pockets have been
lined, there would have been other sen-
ior officials—many true-blue honest
ones— whose hands may have been
forced through political pressure. “Even
if I do not consider the fact of pathetic
salaries paid, you have to also remember
that targets set for chairpersons of pub-
lic sector banks within this economic
scenario are patently unrealistic. That
pressure filters down to lower rank offi-
cials and ambition quickly translates to
greed. This had been somewhat demon-
strated in the sinking of Barings Bank
The officer, who has been in charge
of vigilance, said that he had himself
seen how a very senior politician once
had virtually forced bankers to refinance
Gitanjali Gems, despite the (Nirav
Modi’s uncle) Mehul Choksi-owned
organisation showing all signs of a failed
/mismanaged venture. This was before
the whistleblower entrepreneur from
Bengaluru, Hari Prasad, had alerted the
Prime Minister’s Office of a possible
huge scam developing in that bank.
Prasad’s letter of July 29, 2016 fell on a
wall of deaf ears and inaction.
of PNB and other nationalised banks hit
by the NiMo scam. Last October, Jaitley
had announced a `2.11 lakh crore bank
recapitalisation plan over the next few
years to shore up the capital of PSU
banks. Out of this, `88,139 crore was to
be infused in financial year 2017-18 that
closes March-end.
IDBI Bank (swindled by Kingfisher
Airlines) is to get `10,610 crore, while
PNB is to get `5,473 crore. But with the
latest hit, this is not going to be enough
for PNB, which was founded in Lahore
in 1894 as part of Punjabi renaissance.
Analysts say that recapitalising banks
may shore up finances but would do
nothing to shore up management
practices and keep bureaucrats and
politicians away from messing into
bank affairs.
It is easy to recommend privatization
of banks but with poor corporate gover-
nance practices ailing large parts of the
private sector, nothing short of radical
reforms may help.
a consortium of banks led by PNB.
After keeping mum for a few days,
finance minister Arun Jaitley on Febru-
ary 20 blamed the management and
auditors for the scam. This was even as
the RBI came out with a statement that
it had thrice warned banks since August
2016 that a potential abuse of SWIFT
could take place. Meanwhile, Prime
Minister Narendra Modi is sought to be
embarrassed by a group photo with Ni-
rav Modi at the World Economic Forum
in Davos on January 23.
However, this is of little solace to tax
payers who will have to bear the brunt
of the colossal loss in the balance sheet
“Idon’tthinkthechairmanofPNBshould
havereasontoknowofthescam,butit
shouldhavecometothenoticeofthe
generalmanagerormodulehead.”
—AmitabhaGuha,retireddeputyMD,SBI
Gokulnath
Shetty
illegally gets
Level-V
SWIFT
password
PaymentforDiamondpurchase
Branch
Audit
Brady Road
Nirav Modi
gets deal
CBS Check
Avoided
RBI
Audit
PNB HQ. Audit
plus
Controller Audit
The Checks
LoUFraud
Route
Diamond R Us
Solar Exports
Stellar Diamonds
PSU Bank’s
Nostro A/C in country X
(Recd Guarantee via
LoU from PNB)
Nostro A/c
Audit
PSU Bank’s
Nostro A/C in country Y
(Recd Guarantee via
LoU from PNB)
Thefraud,despitecheckpoints
CBS: Core Banking System; RBI: Reserve Bank of India; LoU: Letter of Understanding
Payment
Delivery
Infographic: Rajender Kumar

18 March 5, 2018
when rogue trader Nick Leeson had, in
1995, sold over a billion dollars worth of
risky futures derivatives without over-
sight, because the bank had reposed too
much faith in him.
T
his correspondent’s pointed
question to the official was:
Aren’t there statutory checks and
balances in this Letter of Undertaking
(LoU) system? He said: “Absolutely. For
people like Nirav Modi, the initial hur-
dle would be tough. This would be
at the local level, where there are strin-
gent checks. That is where the initial
greasing of palms took place at the
Brady Road branch, before the poker
pool grew.”
Overcoming suspicion, explained the
banker, Nirav Modi would quickly ven-
ture beyond the boundaries of the coun-
try. That is where he needed the LoUs
for his three companies, Diamond R Us,
Solar Exports and Stellar Diamonds. “An
LoU is a structured message from one
bank to another, which basically says
that ‘this is a man whose credentials are
known to us and that we would stand
guarantor for your payments (in foreign
currency) towards his business expenses’.
This message is sent through the SWIFT
system. That messaging is password pro-
tected, and this password (a level V pass-
word, which Shetty could not legally
have had), was accessed by the manager
and shared with other operators com-
plicit in the fraud. Recent CBI interroga-
tions have revealed the involvement of
other managers at higher levels.
“Hence, say, Nirav Modi’s diamond
purchases from the Antwerp Exchange
were paid by either another bank or the
same bank’s Nostro account,” he said. “I
would assume that PNB’s LoU might
not be honoured by a foreign bank,
hence it would have been another
Indian bank’s Nostro account that took
it up. So far, there has been little that is
illegal, except for the initial palm-greas-
ing at the local level. Initially, these
amounts were in under-radar ranges of
`20-50 crores. As demand grew, the
amounts and greed grew too, and more
LoUs were initiated. The catch here is
that Nirav Modi, all this while, had used
PNB’s leverage to access funds from
other banks (to pay his purchases), but
had himself not squared his dealings
with PNB. That was when this moved
into the ‘fraud’ domain.”
There is another glaring glitch.
“SWIFT messages, especially LoUs, and
that too in such large amounts, would
have to regularly hit the Core Banking
System (CBS) network,” said the official.
“But PNB’s CBS has not been updated
(State Bank’s system is an updated one)
and all these SWIFT messages rema-
ined off-radar. Hence, the messages did
not show up. Nirav Modi, with help
from the likes of Shetty, had zeroed in
on and used this weakness. That was
why he had specifically chosen PNB,
I guess.
“However, that does not exhaust the
checks. When transactions in any
Nostro account grow to such humon-
gous levels, it is bound to come to the
The Winsome
Swiss Account
India Legal’s July 24, 2017 issue had carried details of Sonia Jatin Mehta’s bank account,
Singapore address and the address and SWIFT code of a bank in Zurich to which she had
transferred `1.86 crore. Despite this, the government showed a shocking lack of urgency in
taking any action against her or her husband who is the promoter of Winsome Diamonds and
owes banks `7,000 crore. This is in stark contrast to the rush of activity and arrests post the
Nirav Modi scam. Modi and Jatin Mehta have a lot in common. They are both Palanpur dia-
mond merchants from Gujarat, both raised massive loans through letters of credit from PSU
banks, both reached their current position as willful defaulters before making a quick exit
from the country. In both cases, PNB was the facilitator of loans and is now saddled with the
unpaid debt. Like Modi, Mehta used seven companies, including Winsome Diamonds and
Jewellery Limited, a listed firm, to raise `4,687 crore. The consortium, consisting of 14 banks,
had provided these loans in tranches from 2009 to 2012. All these credit facilities were provid-
ed based on overseas orders that the companies had got from UAE companies. Just before the
loans came due, Mehta fled the country and took citizenship in St Kitts.
Jatin Mehta

to check for fraud and such. That is not
very effective when a fraud has already
happened.”
So what really happened? Did Nirav
Modi really want to scam the bank? “I
don’t think that was the intention.
Nirav Modi’s would be the typical gam-
bler mindset. One must understand that
Nirav Modi has built a multi-billion
dollar brand on a rather narrow product
spread. He has little elbow room to
hedge his risks. His revenue has not
grown as fast as his capital expenditure
and he was bound to fall short every
time, which he did. At the same time,
the banker, unable to effect recovery
was forced to go along with Nirav Modi,
till the outstanding reached Himalayan
heights.”
Interesting as it is, how did Nirav
Modi manage to establish his credential
and trust with the bank in the first place
when it is the experience of every small
entrepreneur that a bank simply does
not care for his or her need for a loan,
however small the demand may be?
Loan departments of public sector
banks seem to be structured to dissuade
the small entrepreneur from asking or
availing of loans, the government’s huge
chest thumping claims notwithstanding.
No bank officer will even look at you if
you approach him/her without a collat-
eral whose net worth is several times the
loan asked for, or if your CIBIL score
shows even minor financial restructur-
ings from long back.
The officer was clear about this.
“Look, it is all about the manager’s or
officer’s reading of X’s ability to pay
back. Actually, there is not standard
specification, and at a level, rates can
vary from zero percent to 110 percent.”
Basically, despite all the talk of struc-
ture, it is all in the realm of the arbi-
trary. That was the systemic flaw that
Nirav Modi utilised.
And can the money be recovered?
“Remember, in all the scams so far
involving banks, recovery has barely
crossed 1 percent,” said the officer. This
will be no different.
notice of the concerned bank,” he said.
“That was where another greasing of
palms happened, I guess, to shove it
under a carpet of accounting anomalies.
Then there are regular (annual) bank
audits (see flow chart). How was it that
no red flag ever showed? PNB’s own
auditors need to be questioned. Then
there are Controller audits and RBI
audits. Am I to believe that none of
these regular and statutory audits ever
found reason to red flag these transac-
tions, especially when Nirav Modi was
rarely able to square his dealings
with PNB?”
S
o how was it that even the vigi-
lance departments of the banks
involved did not get into the act?
“Vigilance comes in when it sees a red
flag in audit. That is where investigation
starts. Vigilance is not part of a regular
checking system. Hence vigilance never
stepped in. There is preventive vigilance,
but that is mostly recommendatory in
nature, with officials being ‘taught’ how
N the rogues list of those declared
as wilful defaulters by banks,
Winsome Diamonds and Jewellery
Ltd is ranked number two. With
`7,000 crore in bad debts, the com-
pany is just a rung below Vijay
Mallya who has a cumulative outstand-
ing of `9,000 crore. The latter, as we
know, is safe in England until such time
that the Indian authorities can deport
and bring him back to India to face trial.
But what of the Winsome Group and
its promoter, Jatin Mehta? All that we
know is that he and wife, Sonia, have
fled the country and taken citizenship
in the Federation of St Kitts and Nevis,
a tax haven with which India has no
extradition treaty. They are currently
based in Dubai and London but travel
widely between Singapore, London,
Europe and the US and maintain Swiss
bank accounts.
A document accessed exclusively by
India Legal confirms that Sonia has a
Swiss account. On June 28, Sonia
I
THE MONEY TRAIL:
Jatin Mehta and the document showing his
wife Sonia Mehta’s Swiss account

20 March 5, 2018
Jatin Mehta applied for a bank to tele-
graphically transfer 3,98,603.85 Singa-
pore dollars (SGD) worth approximately
`1.86 crore from her Far Eastern Bank
Account No: 4333 666 7444 in Singa-
pore to an account in Bank Vontobel
AG, Gotthardstrasse 43, Zurich, Swit-
zerland (SWIFT CODE:
VONTCH22XXX). She gave her Singa-
pore address as 33, Jalan Mutiara,
Singapore-249208.
Such bank transfers do not come as
a surprise to ED officials. Those who
operate and live abroad require easy
access to funds in Europe and the US.
They find a Swiss bank account a matter
of convenience. However, much of the
assets of the Mehtas in India have been
attached and their bank accounts have
been frozen.
Jatin Mehta also owns a company in
the UK. Called the Diamond Distri-
bution Company (UK), it was incorpo-
rated on August 1 last year. Mehta has
listed his address with the Registrar of
Companies in the UK as 1 Bell Street,
2nd Floor, London, England, Nw1 5BY.
According to CBI sources, the
Mehtas gave up their Indian citizenship
in 2013-2014 and now have a St Kitts
and Nevis passport. The government of
this dual-island nation in the Caribbean
has a “citizenship by investment” pro-
gramme which has attracted several for-
eign nationals from across the world to
the tax haven.
Those who make a substantial con-
tribution to the development of the
country are offered citizenship for
life without much red tape or tedious
verifications. The St Kitts passport pro-
vides visa-free travel to over 100 coun-
tries, including Schengen nations,
Switzerland, UK and Ireland.
According to an ED official in
Mumbai, what makes St Kitts a perfect
haven is the fact that one doesn’t have to
reside or visit there to be a citizen. “You
just have to donate US $2,50,000 per
head to the Sugar Industry Diversifica-
tion Foundation (SIDF), a charitable
organisation set up by the government
ostensibly for displaced sugar industry
workers, and you are a citizen. In six
months, you get your passport which is
valid for 10 years and renewable. It is a
simple process. You transfer the money
and meet the officials once in Dubai,
London or Zurich and your papers move
without any further questions asked,”
said the official.
A
lternatively, a prospective citi-
zenship seeker can invest in real
estate. The minimum required is
US $4,00,000 per head in approved
projects. There is a lock-in period of five
years, after which the property acquired
can be sold. Indian investigators are not
clear about the plan opted by the
Mehtas to acquire citizenship.
Apparently, Jatin Mehta and his wife
applied for citizenship in 2013-2014. It
was in March 2013 that the Winsome
Group started having trouble with
repayment of bank loans. In October of
that year, the company and its promoter
were declared wilful defaulters and the
loans declared as non-performing
assets. The CBI, which was handed over
the case in 2014, has subsequently filed
cases against Mehta and his company.
While Mallya’s every move has been
monitored by the media in the UK, the
Mehtas have not quite commanded
the same attention. Is it because the lat-
ter have never been in the public eye
while the king of good times, as Mallya
is better known, was always in the news
given his flamboyance and Rajya Sabha
MP tag?
Jatin Mehta also has political con-
nections. His son, Suraj, is married to
Krupa, the daughter of Gautam Adani’s
brother Vinod Shantilal Adani. The
marriage took place in January 2012
and created a buzz in the jewellery trade
then because Vinod Adani was a known
gold trader in Dubai and Winsome
was also into the yellow metal and dia-
monds business.
Gautam Adani of the Adani Group
is known to be close to senior BJP lead-
ers and is said to be in the good books
of none other than Prime Minister
Narendra Modi. Some would go so far
as to say that it is this link that has kept
investigators from pursuing the Win-
some case with as much enthusiasm as
they have shown in the Mallya matter.
Interestingly, Vinod Shantilal Adani’s
name made news when it figured in the
Panama papers. Two companies he had
dealings with had offshore accounts
in the British Virgin island. But that
revelation did not add up to much. In
fact, the Panama papers itself has not
triggered any serious investigation so
far in India.
The bank transfer document acce-
ssed by India Legal only proves that
Sonia Mehta had the finances to trans-
fer money to her account in Switzerland.
The Mehtas, one can confidently con-
clude, have no financial crunch although
they are in debt and owe thousands of
crores to Indian banks.
Thebanktransferdocumentaccessed
byIndiaLegal onlyprovesthatSonia
Mehta,JatinMehta’swife,hadthe
financestotransfermoneytoher
accountinSwitzerland.

22 March 5, 2018
HERE can be no debate
over the aphorism that free
and fair elections are the
cornerstone of any democ-
racy. But how best to
ensure such elections
would depend on the nature of the insti-
tution entrusted with the responsibility
to conduct them. Article 324 of the
Constitution vests superintendence,
direction and control of the conduct of
all elections to the Parliament and state
legislatures to the Election Commission.
It also does so for elections to the offices
of the president and the vice-president.
The Supreme Court has, in a number of
cases, interpreted this provision to
enable the EC to exercise more powers
to ensure free and fair elections, consid-
ered a basic feature of the Constitution.
A case filed by Ashwini Kumar
same manner and on the grounds as a
judge of the Supreme Court, but is silent
on election commissioners. He referred
to the Supreme Court judgment in T.N.
Seshan v Union of India and others
(1995) in which it was held that the CEC
is not superior to the election commis-
sioners, but is on par with them. The
Court in that case opined that the
scheme of Article 324 clearly envisages a
multi-member body comprising the
CEC and the ECs. “If the CEC is consid-
ered to be a superior in the sense that
his word is final, he would render the
ECs non-functional or ornamental,” the
Court had observed. It made it clear
Supreme Court/ EC’s Powers
Apetitionseeksdirectionstothecentretomakethisvitalbodyindependenttoensurefree
andfairelections,whichisabasicfeatureoftheConstitution
By Venkatasubramanian
Upadhyay last year sought directions
from the Supreme Court to the centre to
take steps to make the EC even more
autonomous than it is at present. On
February 19, a Supreme Court bench of
Chief Justice Dipak Misra, Justices
AM Khanwilkar and DY Chandrachud
asked additional solicitor general Pinky
Anand to file the centre’s response to the
petition when attorney general KK
Venugopal expressed his reluctance to
assist the court in the matter in view
of his disagreement with the centre on
the issue.
CEC AND ECS
The first reform sought by Upadhyay
was the amendment of Clause 5 of
Article 324, which provides that the
chief election commissioner (CEC) shall
not be removed from office except in the
T
Give More Autonomy
DEMOCRACY’S GATEKEEPERS
Chief Election Commissioner OP Rawat (in
grey suit) along with Election Commissioners
Sunil Arora and Ashok Lavasa in New Delhi
PIB

that such an intention is difficult to cull
out from Article 324 or attribute to the
framers of the Constitution. We must
reject the argument that the ECs func-
tion is only to tender advice to the CEC,
the Court had held.
The proviso to Clause 5 of Article
324, however, says that “any other
Election Commissioner or a Regional
Commissioner shall not be removed
from office except on the recommenda-
tion of the Chief Election Commiss-
ioner”. The equation of the other elec-
tion commissioners with regional com-
missioners is inconsistent with the
Supreme Court’s judgment, which clear-
ly held that the CEC and the ECs enjoy
the same decision-making powers.
In his petition, Upadhyay argued:
“The reason for giving protection to the
CEC as enjoyed by the Judge of this
Hon’ble Court in matters of removabili-
ty from office is in order to ensure
autonomy to the ECI from external pulls
and pressure. However, the rationale
behind not affording similar protection
to ECs is not explicable. The element of
independence sought to be achieved
under the Constitution is not exclusively
for an individual alone, but for the insti-
tution. Hence, autonomy to the ECI can
only be strengthened if the ECs are also
provided with the similar protection as
that of the CEC.”
According to Upadhyay, the present
constitutional guarantee is inadequate
and requires an amendment to provide
the same protection and safeguard in
the matter of removability of ECs as
available to the CEC.
PROTECT SALARIES
The Dinesh Goswami Committee on
Electoral Reforms (1990) had recom-
mended that the protection of salary
and other allied matters relating to the
CEC and election commissioners should
be provided for in the Constitution itself
just as it was in respect of the chief jus-
tice and judges of the Supreme Court.
The EC, time and again, in its corre-
spondences with the centre, and in its
reports, has said that the current word-
ing of Article 324(5) is “inadequate”
and requires an amendment to bring
the removal procedures of ECs on par
with the CEC to provide them with the
same protection and safeguards as
the CEC.
During the tenure of TN Seshan as
CEC in the early 1990s, the EC had rec-
ommended to the centre that its expen-
diture should be charged on the
Consolidated Fund of India. Accepting
the proposal, the centre had introduced
the Election Commission (Charging of
Expenses on the Consolidated Fund of
India) Bill, 1994 in the 10th Lok Sabha.
The Bill’s objective was to provide for
salaries, allowances and pension
payable to the CEC and ECs and
administrative expenses, including
salaries, allowances and pension, of the
ECI staff to be charged upon the
Consolidated Fund of India. However,
the Bill lapsed on the dissolution of
the 10th Lok Sabha in 1996 and was
never re-introduced.
The Law Commission too concurred
with the view that the expenditure of
the ECI should be charged on the
Consolidated Fund of India, and recom-
mended the revival of the Bill to bring
out this reform.
EC VS CENTRE
The present framework of the Repre-
sentative of People Act, 1951, empowers
the centre to make rules after consulta-
tion with the ECI, but it is not bound to
accept the latter’s recommendations.
Upadhyay pointed out that as a result of
this lacuna, rules framed or amended
by the centre have not been in line with
the EC’s recommendations. “Moreover,
there are several instances when rules
opposed to the recommendations of the
ECI have been framed,” he claimed.
Upadhyay emphasised that many
expert bodies have suggested that the
rule-making authority should be con-
ferred on the ECI along the lines of the
Supreme Court/High Courts instead of
the centre, and the new framework
must empower the ECI to make rules
after consultation with the government
rather than the other way round. He
said that conferring the rule-making
power to the ECI is not only necessary
to insulate it from executive/political
pressure, but also essential to ensure
free and fair elections in the spirit of
Article 324.
There is one more reform which
Upadhyay discusses in his petition, but
does not mention in its prayers: the ele-
vation of the CEC from among the elec-
tion commissioners by seniority, and
the appointment of other election com-
missioners on the basis of the recom-
mendation of a collegium. While
Upadhyay claims he would amend his
prayers to include this, the reform
which EC has proposed, but which is
not currently his concern, is the power
to deregister political parties for violat-
ing its lawful directions. This, however,
is debatable.
DuringthetenureofTNSeshan(above)
asCECintheearly1990s,theEChad
recommendedtothecentrethatits
expenditureshouldbechargedonthe
ConsolidatedFundofIndia.

24 March 5, 2018
VEN as a Supreme Court
constitution bench of Chief
Justice Dipak Misra and
Justices A K Sikri, AM
Khanwilkar, DY
Chandrachud and Ashok
Bhushan hears crucial matters on
Aadhaar—its linkages and privacy and
security issues—common people contin-
ue to suffer. If they fail to either
present their Aadhaar cards or authori-
ties fail to authenticate them, people are
deprived of basic rights and entitle-
ments. Even the bench agreed that
authentication was at the heart of issues
related to Aadhaar.
The centre had so far remained un-
moved at the inhuman treatment meted
out to legitimate claimants of basic serv-
ices if they don’t have an Aadhaar card.
Even as some died of starvation, being
denied rations for weeks because of a
identification papers, where available,
should be deemed enough. That shows
that the Authority’s high-brow attitude
regarding their faulty system has taken a
severe beating. And then, Union Law
Minister Ravi Shankar Prasad pretty
much parroted the same instruction.
If Aadhaar data was so readily acces-
sible by service providers and if the sys-
tem was so well-oiled, what was the
need for the Supreme Court to hear so
many appeals against this or why were
top authorities making such defensive
statements? It helps the political leader-
ship of the country to ignore the hard-
ships people have to undergo due to
Aadhaar as bad publicity can backfire. It
has already put the BJP in a bind.
There is also a legal angle to this
issue which came up during submissions
at the apex court. This is with regard to
Article 21 (Right to Life) and earlier
Supreme Court/ Aadhaar Issue
InthefaceofnumerousinstancesofAadhaarglitches,thegovernmentandtheUIDAI
havebacktrackedandsaidthatotheridentificationpaperswoulddo
By Sujit Bhar
Assomediedofstarvationafter being
deniedrationsforweeksduetoatechni-
calglitchinthesystem,thepoliticalclass
glossedoveritwithcommentsthatnever
touchedtheactualissue.
technical glitch in the Aadhaar system,
the political class had glossed over these
cases with comments that never touched
on the actual issue. But when two
women were forced to deliver their
babies within the compounds of govern-
ment hospitals as they were denied
medical care because they didn’t have
Aadhaar cards, better sense seems to
have prevailed on the authorities.
First, the Unique Identification
Authority of India (UIDAI) issued a
statement that nobody can be denied
access to basic services because of the
lack of an Aadhaar card. Alternative
E
Belated Recognition
Justice Dipak Misra,
Chief Justice of India
Justice AK Sikri,
Supreme Court judge
Justice AM Khanwilkar,
Supreme Court judge
Justice DY Chandrachud,
Supreme Court judge
Justice Ashok Bhushan,
Supreme Court judge

Supreme Court judgements. Article 21
secures two rights: Right to life and
right to personal liberty.
But there is a catch. A recent paper
has shown how the Supreme Court’s
interpretation of Article 21, as in
Maneka Gandhi vs Union of India, also
linked it to the right to live with human
dignity. And if that was not enough, in
Francis Coralie vs Union Territory of
Delhi[iv], the Court had observed: “The
right to live includes the right to live
with human dignity and all that goes
along with it, viz., the bare necessities of
life such as adequate nutrition, clothing
and shelter... and must include the right
to basic necessities of life and also the
right to carry on functions and activities
as constitute the bare minimum expres-
sion of human self.”
In Bandhua Mukti Morcha vs Union
of India, Justice PN Bhagwati had obse-
rved: “It is the fundamental right of
everyone in this country… to live with
human dignity free from exploitation.
This right to live with human dignity
enshrined in Article 21 derives its life
breath from the Directive Principles of
State Policy and particularly clauses (e)
and (f) of Article 39 and Articles 41 and
42 and at the least, therefore, it must in-
clude protection of the health and stren-
gth of workers, men and women, and of
the tender age of children against abuse,
opportunities and facilities for children
to develop in a healthy manner and in
conditions of freedom and dignity, edu-
cational facilities, just and humane con-
ditions of work and maternity relief.”
Bhagwati called these: “... the mini-
mum requirements which must exist in
order to enable a person to live with
human dignity and no State, neither the
Central Government nor any State
Government, has the right to take any
action which will deprive a person of
the enjoyment of these basic essentials.”
H
ence, hospitals which have
refused these admissions
directly infringe upon the
rights of those women. By that exten-
sion, would Aadhaar cards too be an
infringement? That was pointed out in
Court by senior counsel Kapil Sibal. He
said: “The right to receive entitlement...
is one’s status. So in case of our status,
we don’t need Aadhaar to claim our
right. Certain entitlements are available
to non-citizens also. No service can be
denied, especially to those who are
below the poverty line. This statute
impacts our fundamental right i.e. right
to livelihood.”
The recent statement of the UIDAI
and Prasad on alternate IDs makes the
government look befuddled. After all,
the administration had remained stiff
about its draconian move to try and
track every move of the public. But now
it has been pushed on the back foot.
At a recent meeting of IT ministers
and secretaries from different states,
Prasad said that in the absence of the
Aadhaar card or number, any alternate
identity proof should be enough for the
person to claim his due of essential ser-
vices such as healthcare and food gra-
ins. Prasad admitted that biometrics do
not match due to worn out finger-
prints. He was finally speaking the
same language as a section of the me-
dia. He said that food grain shops can-
not deny claimants their quota of ration
and conceded that this has been one of
the biggest failures of the Aadhaar sys-
tem. The minister said that in such
cases, the beneficiary’s name and other
details must be noted in a register.
Adding to the already existing chaos
over the porous database, Prasad added
another one—of facial recognition sys-
tem which is unreliable. He said that
facial identification will kick-off from
July 1. This is to “end the problems
faced by labourers, farmers and senior
citizens”. Will it?
According to Robinson Meyer of US
daily The Atlantic, who has researched
the credibility of different face recogni-
tion softwares, it all starts with the
“most benign” one—those available in
smart phones. This software, says
Meyer, just says: “‘Hey, here’s a face,’
then (often) auto-focuses the lens on it.
This is called face-detection. Then there
is facial characterization, which dis-
cerns the demographics of a face: It
sees not a generic human but a white
MISMATCH; (Left) Facial recognition could
add to Aadhaar related issues as the software
is unreliable; (below) former UIDAI chairman
Nandan Nilekani
UIDAIissuedastatementthatnobody
canbedeniedaccesstobasicservices
becauseofthelackofanAadhaarcard.
Alternativeidentificationpapers,where
available,shouldbedeemedenough.

26 March 5, 2018
male in his early thirties... Other types
of facial recognition have more serious
implications. Some software uses facial
recognition for verification purposes,
activating a laptop or phone only when
the camera sees an approved visage. But
the gravest of all is when facial recogni-
tion is used to identify an unknown per-
son—when a database connects a
stranger’s face to a name.”
Meyer says: “It’s this kind (the last
kind) of facial recognition that people
worry about most... (and) even this most
serious form of facial recognition has
two different varieties. There’s an online,
computer-augmented form: Can soft-
ware identify you from a picture
uploaded to Facebook? And there’s an
offline, ‘in the wild’ form: Can software
identify you by taking your picture while
you’re just walking around?
“The Facebook AI team’s vaunted
algorithm, for instance, specializes in
photos online. It knows whether two
images depict the same person 97.25
percent of the time. On average, humans
score 97.5 percent on the same test.”
Regarding its offline uses, he is more
specific. He says: “An Israeli company
called Face Six says that 30 churches
around the world use its facial-recogni-
tion software, Churchix, to track parish-
ioners, but refused to specify to a Fusion
reporter which ones they are—which
renders its own assertions unverifiable.
Another company, FaceFirst, boasts that
it can identify known shoplifters as they
enter a store.”
While the use of such software is
expanding, how can they be admissible
in court when even the old technology
of lie detector tests isn’t? Facial recogni-
tion could add to the muddle that
Aadhaar has created, and the more the
government delves into technicalities it
doesn’t understand, the more will be the
glitches and the backlash. The political
price will be high.
Temporary databases: Kapil Sibal
cited foreign situations where govern-
ments gathered information only for ten
years. He said: “After 10 years, all data-
bases will be deleted and recreated.
That is what happens in the most
secure countries in the world.” He
added: “Even if you want to access the
database, it will only be for limited
things.” He said the current problems of
Aadhaar will be suffered by generations
to come. Basically, he challenged the
“architecture of the (Aadhaar) Act”.
Earlier, he had talked about the near
impossibility of authentication of
Aadhaar across India which has very
poor infrastructure. This includes no
electricity and no net connection in sev-
eral places. He had showed how
authentication is the key in the use of
Aadhaar number. He also pointed out
several instances of security breach.
Virtual existence: Senior counsel Go-
pal Subramanium (left) said: “When the
identification and authentication lies
with government, then there is no use of
a real person. Then the name is not the
name, it will just be a number. And the
virtual person will rule.”
Additional Solicitor General Tushar
Mehta countered this by saying:
“Nobody is excluded due to lack of
infrastructure. We have remedies for
that also.”
Aadhaar Bridge: This is a private play-
er which boasts of providing easy
access to all Aadhaar-linked services
with one log-in. The apex court has
observed that access to presumably
secure data of people to a private play-
er may not have been authorised by the
Aadhaar Act.
Willgenerations
suffer?
Supreme Court/ Aadhaar Issue
Some of the critical issues brought
before the Supreme Court in recent
weeks on Aadhaar through peti-
tions and senior counsels were:
“Therighttoreceiveentitlement...is
one’sstatus.Soincaseofourstatus,we
don’tneedAadhaartoclaimourright.
Certainentitlementsareavailabletonon-
citizensalso.Noservicecanbedenied,
especiallytothosewhoarebelowthe
povertyline.Thisstatuteimpactsourfun-
damentalrighti.e.righttolivelihood.”
—KapilSibal,senioradvocate,SC
“...theminimumrequirements...must
existinordertoenableaperson
tolivewithhumandignityandnoState,
neithertheCentralGovernment
noranyStateGovernment,hasthe
righttotakeanyactionwhichwill
depriveapersonoftheenjoymentof
thesebasicessentials.”
—JusticePNBhagwati

Courts/Punjab and Haryana High Court/ Justice AK Mittal Case
28 March 5, 2018
N a twist of irony for the current
puisne judge of Punjab and
Haryana High Court, Justice Ajay
Kumar Mittal, the word superses-
sion has proved to be a double
whammy. It has also raised a ques-
tion mark on the system of higher judi-
cial appointments through the col-
legium system.
Merely eight months ago, the col-
legium headed by then Chief Justice of
India JS Khehar had decided to elevate
Justice Mittal as the chief justice of
Delhi High Court. He was asked for his
written consent, which he gave.
However, two of the “consultee
judges”, Justices Ranjan Gogoi and AK
Sikri, who were asked their opinion
about the appointment, pointed out
that his elevation would result in the
supersession of Justice SS Saron who
had only a couple of months’ tenure left.
“Consultee judges” are those who had
served in the same court as the judge
under consideration. They said that
although both Justice Mittal and Justice
Saron had unimpeachable character, it
would not be in the fitness of things at
all to supersede the latter. Incidentally,
Justice Saron was known as a tough
judge and one of his last judgments
related to strict action against Dera
Sacha Sauda following violence
unleashed by the conviction of its chief,
Gurmeet Ram Rahim.
The collegium decided to hold back
the recommendation appointing Justice
Mittal till the retirement of Justice
Saron in September last year. In the
meantime, Justice Khehar retired, and a
new collegium was constituted under
Chief Justice Dipak Misra. However,
Justice Mittal’s elevation was again held
back following internal dissension with-
in the collegium. This came to the fore
when four of its five members came out
in public to air their grievances.
TWICE UNLUCKY
Subsequently, in another turn of events,
the collegium recommended that Justice
Surya Kant be appointed chief justice of
Cracks
in the
Collegium
Thisjudge’selevationaschiefjustice
oftheDelhiHighCourtwasdelayed
twiceduetodissensionwithinvarious
collegiums.Itcouldbeusedby
thegovernmenttopressfor
changesinjudges’appointments
By Vipin Pubby
in Chandigarh
I
MISSED ELEVATION
Justice SS Saron retired in September
last year

the High Court of Himachal Pradesh. As
Justice Kant is junior to Justice Mittal,
it meant his supersession again. There is
no doubt that Justice Kant is regarded
as a highly competent judge who is like-
ly to be elevated to the apex court in
future. Justice Mittal and Justice Kant
had joined the bench on the same day
in 2004, but the former was ranked
senior as he is four years older than
Justice Kant.
Interestingly, Justice Saron, who
retired on September 3 last year, could
have been elevated as chief justice of
Punjab and Haryana High Court after
the retirement of Justice Satish Kumar
Mittal in April last. However, it was
postponed due to the delay in finalisa-
tion of the Memorandum of Procedure
for the appointment of judges. By the
time it was finalised and sent to the cen-
tre, Justice Saron’s retirement was only
a few months away.
As per convention, the seniormost
judge of a high court is elevated as a
Supreme Court judge and the puisne
judge, or the judge next to him in sen-
iority, is elevated as chief justice of
another high court. In the case of
Punjab and Haryana High Court, tradi-
tionally the two seniormost judges are
elevated to the apex court, while the
next two are appointed as chief justices
of different high courts. Punjab and
Haryana High Court follows a different
system as it serves two states.
IB REPORT
The collegium has, however, maintained
silence on the fate of Justice Mittal.
Unverifiable reports say that at least two
members of the collegium, who were
also members of the collegium led by
Justice Khehar, had given adverse
remarks on Justice Mittal. These had
roots in a 14-year-old Intelligence
Bureau (IB) report regarding some land
deals before his appointment.
However, the fact is that he was
appointed a judge of the high court
despite the alleged remarks in the IB
report. Again, he was considered and
the collegium had decided to elevate
him as chief justice of Delhi High Court
despite that report. So how is it that the
IB report, if at all it exists, has been
used against him?
The Supreme Court maintains utmost
secrecy over its decisions and does not
want to come on record regarding the
exact reasons which led to the superses-
sion of Justice Mittal. The Print has
quoted the minutes of the meeting
which noted: “It is deemed necessary to
add here that while making the above
recommendation, we have also consid-
ered the name of Justice AK Mittal, who
hails from the same High Court as does
Justice Surya Kant.....Though Justice
AK Mittal is senior to Justice Surya
Kant in the seniority of judges of the
Punjab and Haryana High Court, having
regard to all relevant factors and since
we consider Justice Surya Kant more
suitable than Justice A K Mittal, we are
not recommending name of the latter,
for the present, for appointment as
Chief Justice.”
In another sideshow, Supreme Court
judge AK Goel, one of the “consultee
judges” for elevation of Justice Surya
Kant, has sent a letter to Chief Justice
Misra putting on record his “respectful
disagreement with the proposal”. Justice
Goel’s view would, however, not have
any bearing on the elevation.
The decision on Justice Mittal is like-
ly to kick off a debate on the collegium
system. The government is already keen
to change it. The U-turn in Justice
Mittal’s case is expected to be used
as an example by the government to
press for changes in the system of
appointing judges.
IN MIDST OF CONTROVERSY
The Punjab and Haryana High Court; Justice
Surya Kant (above) whose elevation as chief
justice of the High Court of Himachal was
recommended by the collegium though he is
junior to Justice AK Mittal
Thecollegiumhasmaintainedsilenceon
thefateofJusticeMittal.Unverifiable
reportssaythatatleasttwomembers
ofthecollegiumhadgivenadverse
remarksonJusticeMittal.

Spotlight/ India Legal Show/Justice VS Sirpurkar Felicitated
OR Justice VS Sirpurkar, a for-
mer Supreme Court judge and
a noted jurist, Baba Amte was
a major influence in his life. It
was Baba Amte who asked
Justice Sirpurkar’s father to
send him for practice as he believed he
could become a judge. Baba Amte’s
advice to the young Sirpurkar was to go
behind the law and know everything
about a given provision and why it was
brought in.
Ever since then, Justice Sirpurkar
has followed this principle and it has
stood him in good stead. He has served
in many high courts in India. He be-
came a judge of the Bombay High Court
in 1992 from where he was transferred
to Madras High Court. He served as
chief justice in both the Uttarakhand
and Calcutta High Court and in January
2007, he was elevated as a Supreme
Court judge. Justice Sirpurkar retired on
August 21, 2011.
Recently, Justice Sirpurkar was felic-
itated by India Legal. He and his wife,
Kumkum, who is a senior advocate,
spoke on many subjects and enlight-
ened the audience about various facets
of the judiciary. Both come from fami-
lies with a legal background and met in
college and then in court where they
were handling cases of the opposite
party. Justice Sirpurkar won the case
and also the hand of his wife after
crossing caste hurdles.
WOMEN IN THE JUDICIARY
When Rajshri Rai, APN Editor-in-Chief,
asked why there was less participation
of women in the judiciary, Kumkum
recalled how she was discouraged by her
fellow colleagues when she joined the
bar in 1970 but she went on to become
the president of the same bar. However,
she said that many women who join law
do not take up litigation and therefore,
are not seen in courts. Justice Sirpurkar
said the numbers were much better at
present and recalled a function in Latur
district court where the number of lady
ALL EARS, SIR Justice VS Sirpurkar (centre) flanked by his wife Kumkum (left) and Senior Advocate, Supreme Court, Pradeep Rai (right). The panel
also included Inderjit Badhwar, Editor-in-Chief, India Legal (second from right); Sr Managing Editor, India Legal, Dilip Bobb (second from left); Deputy
Managing Editor, India Legal, Shobha John (left) and Abhishek Dixit, Commandant, TNSP, Tihar jail (right)
“Indian Constitution and
Democracy Unshakeable”
30 March 5, 2018
Photos: Bhavana Gaur
TheformerSupremeCourtjudgespokeeloquentlyonmanyissuesfacingthejudiciaryandIndia
F

judges was more than male judges.
However, the patriarchal mindset often
comes in the way of women lawyers.
Justice Sirpurkar recalled one incident
where his fellow judges got upset
with him for recommending
the names of two women
to be elevated as high
court judges.
Kumkum added:
“The patriarchal
system still prevails
and that’s why,
wherever I speak, I
say that more than
the ladies, it is the
males who should
be educated.”
CONSTITUTION IN PERIL?
Asked if the Constitution was in peril
given recent controversial statements
given by some ministers, Justice
Sirpukar said: “The Indian Constitution
and Indian democracy are absolutely
unshakable; it cannot be brought into
peril.” He said the father of the Indian
constitution, BR Ambedkar, had taken
all care while making it. “I consider him
the greatest person. He was the one who
created the bedrock,” said Justice Sir-
purkar. “But even before that, Gandhari
was the first person who introduced the
idea of rule of law when she didn’t bless
her son Duryodhan for war. Instead, she
said that the ones who have justice by
their side will be victorious—‘Yato
Dharma Tato Jaya’—which is also ins-
cribed in the logo of the Supreme Co-
urt,” said Justice Sirpurkar.
JUDICIARY IN GENERAL
Asked about regional representation in
the Supreme Court, Justice Sirpurkar
said: “I do not believe in regional repre-
sentation. If you are appointing a judge
to the Supreme Court, the first thing
that you should see is whether he is
competent enough, fearless and has
integrity. And if there is no judge from a
particular region, then the best judge
must be brought in.” He refused to be
drawn in about the questionable merit
of some judges by saying: “Before being
chosen to the Supreme Court, every-
thing is checked from your past, present,
to your probable future.”
When asked which judges
and lawyers he respected
the most, he said: “All”.
“Every lawyer is enti-
tled to be respected
because you are not
dealing with the
lawyer but the liti-
gant. Whether you
like the lawyer or
not matters the
least because you are
concerned with doing
justice to the litigant,”
said Justice Sirpurkar.
COMPASSION AND JUDICIARY
Asked by Pradeep Rai, senior advocate,
Supreme Court, about a
judgment where he had
reduced a death sen-
tence to life in a case
of honour killing,
he said: “My first
concern was that
he was a 23-year-
old boy, so age
was on his side.
He was from a typ-
ical old UP family
and his sister had
married a Keralite. So
the daily insults that he
would have had to face from society
was what I considered. I wondered what
was the point in giving him a death sen-
tence. I decided that he should live for
at least 30 years in jail so that when he
comes out, he is a better person.”
LEGAL LITERACY
Kumkum reiterated what Netaji Sub-
hash Chandra Bose had once said: “No
man is complete unless he knows law.”
As a member of the Maharashtra Legal
Service Authority, she said that they
conducted para legal camps for social
workers so that the basic principles of
law are disseminated. She said that
India Legal should continue spreading
legal literacy in remote areas. Justice
Sirpurkar said he had conducted legal
aid camps in remote areas of Uttara-
khand when he was the chief justice
there and said that people should know
basic facts. He said that a woman can’t
be arrested at night unless a lady con-
stable is present. “Until and unless these
facts are known, the law-abiding sense
of the public will not increase,” said
Justice Sirpurkar.
Abhishek Dixit, Commandant, TNSP,
Tihar jail, who was also a guest on the
show, said that were many incidents in
his career where he knew who the real
culprit was but he couldn’t prove it be-
cause there was no evidence. He asked if
Justice Sirpurkar also faced such cases?
He said: “It is quite one thing to say to
the court that my client has not done
it when you know that your client has
done it but it is quite another to
say my client doing it has
not been proved by
legally admissible evi-
dences. Even if a per-
son is the culprit and
you are aware of it,
your task is to prove
to the court that his
act is not proven
beyond reasonable
doubt by legally admis-
sible evidence. Once these
two distinctions are realised,
there is no question of it biting
your conscience.”
Asked how important it was to un-
derstand the psychology of a person
while giving a judgment, Justice Sir-
pukar said that a judge has to be an all-
rounder and he cannot do justice unless
he gets into the psychology of that per-
son. “Motive is different and intentions
are different. It is important to under-
stand the intentions,” he said.
—Compiled by Lilly Paul

My Space Col R Hariharan/ Civil-Military Relations
IVIL-MILITARY relations
have been on a downslide
for a long time. They
touched a new low when the
Supreme Court was
approached by a serving
officer’s father to protect his son from
prosecution while performing his official
duty. The Court ordered that “no coer-
cive action shall be taken” against Major
Aditya Kumar based on an FIR filed in
connection with the death of three civil-
ians in alleged army firing in Shopian
last month. That the army convoy was
on bonafide military duty in an area
under AFSPA (Armed Forces Special
Powers Acts) is a matter of detail.
The Court was responding to a peti-
tion filed by Lt Col Karamveer Singh
challenging the action taken against his
son who was named wrongly under
Sections 302, 307 and 336 of the Ranbir
Penal Code. The Court also issued a no-
tice seeking the response of the state
and centre within two weeks. Inciden-
tally, the Ranbir Penal Code or RPC is a
criminal code applicable in Jammu and
Kashmir (J&K). IPC is not applicable
under Article 370 of the Constitution.
In addition, the National Human
Rights Commission (NHRC) has taken
cognisance of a complaint by three chil-
dren of army officers alleging human
rights violations of army personnel in
recent incidents in the state. NHRC has
sought a “factual report” from the Min-
istry of Defence (MoD) in four weeks.
The children have also appealed to the
UN Human Rights Council (UNHRC)
against the violation of human rights of
soldiers, adding an unsavoury interna-
tional dimension to the issue.
Apathy, confusion and contradiction
sum up the present state of civil-military
relations. While the centre has not been
able to overcome its indifference, state
governments are no better. The mess in
J&K is a testimony to the mindless way
in which the BJP-PDP coalition govern-
ment headed by Mehbooba Mufti is
functioning. For too long, this coalition
of convenience had been running with
the hare and hunting with the hounds at
the same time. Mehbooba has been
adopting a soft approach to lynch mobs
and Pakistan’s Fifth Columns targeting
the security forces, while “cooperating”
with the centre in the operations against
terrorists. The BJP, with its double-
speak, bears equal responsibility for this.
T
he J&K government’s handling of
the “killing” of three stone throw-
ers by an army convoy escort on
January 27 in Shopian is a case study of
botched civil-military relations. Though
the army escort fired to protect the con-
voy from the mob which damaged army
vehicles and injured seven soldiers, in-
C
Thedistrustbetweenthetwowasevidentrecentlywhenanarmyofficer’s
fatherapproachedtheSupremeCourtforsuccour.Willtheplummetingties
bluntthecuttingedgeofthearmedforces?
LIP SERVICE? Defence Minister
Nirmala Sitharaman with Army
chief General Bipin Rawat (third
from right) and other officers
and jawans in Srinagar
32 March 5, 2018
UNI
Defence Forces: A Low Priority?

cluding a JCO seriously, Mehbooba reg-
istered an FIR against Major Aditya and
his unit on charges of murder, attempt
to murder and endangering life.
Former army chief General VP Malik
tweeted that the incident affected the
morale of security forces working on the
ground. He also found the political lead-
ers’ silence inexplicable. However, a me-
dia report quoted Mehbooba as saying:
“I do not accept that the Army gets de-
moralised by such actions. The Army is
an institution and has done a wonderful
job. But a black sheep can be any-
where…. If some Army officer has com-
mitted a mistake, an FIR has been
lodged and it is the duty of the govern-
ment to take it to a logical conclusion.”
Mehbooba also mentioned that she
had reported the matter to Union Min-
ister of Defence Nirmala Sitharaman.
The minister broke her stoic silence on
the CM’s statement only when she visit-
ed J&K when terrorists carried out two
more attacks on security forces a few
days later. While an attack on a CRPF
camp was thwarted in time, the one on
family quarters in Sunjuwan garrison
was prolonged and four soldiers and one
civilian were killed. The defence minis-
ter referred to the FIR on army person-
nel and reassured: “The government
and MoD will stand by the Army, which
is working under severe duress in J&K.
We will not let our soldiers down.” Her
words would have carried more credibil-
ity, had the state government immedi-
ately withdrawn the FIR issued against
Major Aditya and his unit. Evidently, the
CM is looking for a politically opportune
moment to withdraw the FIR or just
ignore Sitharaman. In the meanwhile,
Major Aditya will be kept on tenter-
hooks for the next few months or years,
while the state pushes the case to its
“logical conclusion” whatever it is.
I
n the light of these happenings, the
army has no option but to develop a
thick skin to survive. Troops fight-
ing terrorists will also now have to fend
off state government harassment.
Former IG of BSF Bhola Nath’s tweet
summed up situation: “My country, you
throw ink, egg or shoe at any leader, you
will get arrested on the spot immediate-
ly. But if you throw stones on forces,
army….Army men may be arrested! Do
we see such act of stone throwing on
Forces in any other countries?” How
much these mindless pinpricks will
affect the fighting edge of the armed
forces while the civil administration
hunts for black sheep among the troops
is an open question.
While the spontaneous flood of sym-
pathy for the army in social, print and
electronic media was welcome, it does
not appear to have shaken the political
class. Their callousness was evident
when a National Conference member
shouted: “Pakistan zindabad” in the
assembly, even as the bodies of soldiers
were being prepared for funeral. For the
political class, it was business as usual.
The military fraternity, which is usu-
ally only seen and not heard, has be-
come vocal about the Shopian incident
because it adds to their angst about the
government’s failure to live up to its pro-
mises on issues affecting national secu-
rity and the military’s professional capa-
bility. The low priority defence forces
enjoy in the national scheme of things
became evident when the prime minis-
ter and defence minister did not attend
the army chief’s Army Day reception to
the president for the first time ever.
Let alone the “One Rank One Pen-
sion” issue that left some residual bitter-
ness and Pay Commission woes of the
armed forces, many other proposals
for making up the deficiencies in com-
mand and control set-up and fire-power
continue to be caught in bureaucratic
red tape and the compulsions of Make
in India.
Ashley Tellis, a senior fellow at the
Carnegie Endowment for International
Peace has eloquently summed up the
current state of affairs: “The structures
that are dysfunctional, that have
stopped the military from making smart
choices, are still there…It’s not the way
to run a military of a major power. It
has to be among the worst procurement
processes of any major power.”
Our potential adversaries—China
and Pakistan—have evolved two extreme
models of civil-relations, which recog-
nise the armed forces’ role in shaping
the nation’s destiny.
President Xi Jinping in his quest for
consolidation of power has made “civil-
military integration” (CMI) his priority.
It is one subject he refers to frequently
in his speeches as the Bridge and Road
Initiative and “the Chinese dream”. The
State Council's May 2015 White Paper
TRUST DEFICIT Lt Col Karamveer Singh,
father of Major Aditya Kumar
Twitter
“Thekeyto
healthy
civil-military
relationsistrust
onbothsidesof
thenegotiation...”
—JamesMattis,
USSecretaryof
Defence
“Thestructures
thathavestopped
themilitaryfrom
smartchoices
stillexist.”
–AshleyTellis,
CarnegieEndow-
mentforInter-
nationalPeace

India Legal 05 March 2018

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