India Legal 07 August 2017

NDIA EGALL STORIES THAT COUNT
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August7, 2017
EyeballtoEyeball

long overdue piece of legislation aim-
ed at safeguarding the rights, safety
and privacy of kids was finally enact-
ed in 2012. Known as the POCSO
(Protection of Children from Sexual
Offences) Act, it was a laudable initiative to pun-
ish more harshly and bring to book more spee-
dily sexual predators who take advantage of
defenceless youngsters. The Act defines a “child”
as a person under 18 years of age.
But while formulating the legislation, as our
senior editor Sujit Bhar wrote in an extensive
analytical piece for this magazine’s website
www.indialegalive.com, parliament did not take
into consideration situations of victims who are
over 18, but who suffered the disability of pos-
sessing the “mental age” of a child, maybe even
an infant. And five years later, the judicial sys-
tem has had to grapple with this vexing issue.
But first, the major features of the Act as
already spelled out in an earlier story on our
website: It filled holes in the existing laws
through which offenders could escape.
The Act deals with a wide range of sexual
offences, including penetrative sexual
assault, non-penetrative sexual assault
(kissing, fond-ling), and non-con-
tact-based sexual acts such as
sexual harassment.
Unlike the Indian Penal
Code which treats sexual
intercourse by a man with his
wife above the age of 15 years
as an exception to rape, the
POCSO Act does not permit any
exception. In fact, penetrative sexual
assault and non-penetrative sexual
assault by a person who is related to a
child through marriage constitutes an
aggravated offence.
The Act also provides for estab-
lishing special courts inter alia empowering the
state to make special provisions for children.
Recently, a Supreme Court bench of Chief
Justice JS Khehar and Justices DY Chandrachud
and Sanjay Kishan Kaul heard a petition filed by
Gaurav Kumar Bansal praying for the appoint-
ment of independent public prosecutors to pur-
sue cases filed under the Act. He also pleaded for
the establishment of fully separate courts, with
child-friendly infrastructure and atmosphere for
trials. These would be different from the
Juvenile Justice Courts, which already exist.
The Court found the issue to be important
enough and issued a Writ of Mandamus to lower
authorities, including high courts, to make avail-
able such facilities for children. The petitioner
also said that there was a shortage of judges for
dealing with such cases. Despite his having filed
several pleas in the Delhi High Court and having
received a sympathetic response regarding the
appointment of a special judge to hear these
cases, no action had been taken. He requested
the Supreme Court to issue a Writ of Manda-
mus, directing the different state commissions to
appoint an independent public prosecutor as
defined under Section 32 of the POCSO Act.
The apex court order said: “The petitioner
has invoked the jurisdiction of Delhi High Court.
We are satisfied with the petitioner that the issue
is very important and needs prompt attention.
We, therefore, request the high court of Delhi to
expeditiously dispose of the writ petition.
“We also have perused the different annex-
ures where it was shown that public prosecutor
has not been appointed in various states, such as
Gujarat, Himachal Pradesh, Tamil Nadu,
Punjab, Tripura, Haryana, Maharashtra, Chha-
ttisgarh, Kerala, Nagaland, Mizoram, Megha-
laya, Puducherry and Andaman and Nicobar,”
the order said.
“We consider it just (and) appropriate to
POCSO: A GAP IN THE LAW
Inderjit Badhwar
Letter from the Editor
A
4 August 7, 2017

| INDIA LEGAL | August 7, 2017 5
require the registry of this court to transfer to
registrar general of the different states and the
chief justice of respective high courts to take a
suo motu (action) to implement Section 32 of
POCSO Act 2012, to appoint independent pub-
lic prosecutor.
“The high courts should also examine the
available infrastructure, so that a child-friendly
atmosphere is provided where the case pertain-
ing to above will be dealt with.”
W
hile this has certainly created greater
movement on this issue, thanks to the
prodding by the apex court, a major
drawback of the Act—the controversy over the
mental age of a victim—remains unresolved.
This worrisome issue recently came up for inter-
pretation before the Supreme Court. Following
lengthy deliberations, the Court ruled that it is
the biological and not mental age of a rape sur-
vivor which should be the yardstick for deciding
whether the case would be filed under the strin-
gent POCSO Act.
As www.indialegallive reported: “This para-
dox was highlighted in the order of the bench of
Justices Dipak Misra and RF Nariman, who said
that it was up to the legislators to interpret and
provide guidelines for judgments to run on.
They said: ‘…to include the perception of mental
competence of a victim or mental retardation as
a factor will really tantamount to causing vio-
lence to the legislation by incorporating certain
words to the definition. By saying age would
cover mental age has the potential to create
immense anomalous situations without there
being any guidelines or statutory provisions.
Needless to say, they are within the sphere of
legislature’.”
The bench also said: “If a victim is mentally
retarded, definitely the court trying the case
shall take into consideration whether there is a
consent or not. In certain circumstances, it
would depend upon the degree of retardation or
degree of understanding. It should never be put
in a straight jacket formula. It is difficult to say
in absolute terms.”
This was the judgment in a case being fought
by the 68-year-old mother of a 40-year-old
woman whose is suffering from cerebral palsy
since birth and her mental age has been deter-
mined through tests to be that of a six-year-old.
She had been the victim of a sexual assault, and
while the sole accused has died in custody, her
mother wants this case to be moved to the
Special Court dealing with POCSO matters.
Clearly, there are gaps in the otherwise com-
mendable legislation which still need to be filled
by India’s parliamentarians.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UnliketheIndianPenalCodewhichtreatssexualintercourse
byamanwithhiswifeabovetheageof15yearsasanexcep-
tiontorape,thePOCSOActdoesnotpermitanyexception.
Illustration: Anthony Lawrence

ContentsVOLUME. X ISSUE. 38
AUGUST7,2017
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6 August 7, 2017
Eyeball to Eyeball
India or China, who will blink first in the latest standoff in the Doklam area near the Bhutan
tri-junction border? The battle of nerves continues
14
LEAD
The Privacy Conundrum
It is a right that has not been clearly defined by the constitution and interpreted variously by
the judiciary. The nine-judge bench has to resolve this ambiguity
21
SUPREMECOURT
Triumph of the Judiciary
The legal fraternity sees in Pakistani prime minister Nawaz Sharif’s disqualification a victory
for South Asian jurisprudence and a prospect of better probity in public life
19
LEGALEYE

REGULARS
Followuson
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
Briefs........................12, 31
Media Watch ..................50
Cover Design: ANTHONY LAWRENCE
A Shut-and-Open Case
The sealing and desealing of two Lutyens’ Delhi outlets show up
flouting of several rules, including an apex court directive
27
Too Early to Exult
Though the Trump Administration has
blocked $350 million aid to Pakistan,
India should not read too much into the
gesture for the US cannot abandon it
altogether until the situation in
Afghanistan stabilises
47
DIPLOMACY
Home with a View
A housing project by Kerala’s LDF government holds out hope of
assimilation and acceptance to the transgender community
34
STATES
Policing the Internet
Not enough priority is being accorded to cyber crime, the global cost of which will
cross $6 trillion by 2021. A dedicated task force is required to tackle it successfully
CYBERCRIME
38
RoadApp for Corruption
A Gujarat firm got an untendered contract to develop an app
for the New Delhi Municipal Council. Its terms are controversial
24
INVESTIGATION
Over the Rainbow
A Standing Committee report has some valuable suggestions on
the Transgender Persons (Protection of Rights) Bill
32
ACTS&BILLS
Not a Civilian
Force
A dejected BSF has
moved court for pay and
benefits at par with the
Army, arguing that its work
entails equal risk and
responsibilities
DEFENCE
40
Diaspora of Devilry
The deeds of Indians living
abroad may not always make
their country proud. The com-
position of Interpol’s newest
most wanted list is proof of
the fact
GLOBALTRENDS
44
Where No Doctors Dare
To address the manpower crisis in the rural health sector, the
government needs to invest in infrastructure big time
35
MEDICINE

8 August 7, 2017
“
RINGSIDE
Shouldn’t (Kumar) as the VC of an intellectual
university be demanding more PhD seats, as
now almost 800 seats have been cut, or more
books for the library, or more fellowships for
students? Today he asked for a tank, tomorrow
he may ask for an AK-47.... Let him run the
university with tanks, if he thinks he can.
—President of the JNU Students Union Mohit Pandey, on
JNU VC Jagadesh Kumar’s plan to install an army tank to
instill patriotism among students, in the Hindustan Times
The soul of India resides
in pluralism and tolerance.
We derive our strength
from tolerance. We may
argue, we may agree or we
may not agree. But we
cannot deny the essential
prevalence of multiplicity
of opinion. Otherwise, a
fundamental character of
our thought process will
wither away.
—Pranab Mukherjee,
addressing the nation for
the last time as president
You being the son should say
why no chargesheet has been
filed (for three-and-a-half
years). We thought the son
will be extremely keen to
know as to who is the person
(responsible for Sunanda’s
death).
—Delhi HC bench of Justices
GS Sistani and Chander
Shekhar, addressing Sunanda
Pushkar’s son Shiv Menon, on
his questioning Subramanian
Swamy’s locus standi in taking
a keen interest in the probe
I was told I couldn’t
leave the room till the
Adani article was
pulled out.
—Journalist Paranjoy
Guha Thakurta, on the
circumstances in which
he resigned as the editor
of Economic and
Political Weekly, run by
the Sameeksha Trust, in
The Wire
Me and all of India
prouder even in this
loss than you can ever
be mate. We fought
well & will only get
better & stronger.
Enjoy for a change!
—Virender Sehwag,
responding to British
journalist Pierce
Morgan’s tweet
following the defeat of
Indian team against
England in the women’s
world cup
We won’t allow any technol-
ogy that takes away jobs.
In a country where you have
unemployment, you can’t
have a technology that ends
up taking people’s jobs.
—Union road transport and
highways minister Nitin
Gadkari, in the Hindustan
Times
The India of the 21st
century will be one that is in
conformity with our ancient
values as well as compliant
with the Fourth Industrial
Revolution. There is no
dichotomy there, no
question of choice. We must
combine tradition and
technology, the wisdom of
an age-old Bharat and
the science of a contempo-
rary India.
—President Ramnath
Kovind, in the central hall of
parliament on the day of his
swearing-in

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
VENKAIAH’S
REPLACEMENT
It’s still early days to judge if
the new head of the Congress
Party’s social media wing has
made any significant impact.
But Kannada film star Divya
Spandana—better known as
Ramya—has certainly upped
the glamour quotient at the
party headquarters on Akbar
Road. The 34-year-old actress,
who recently replaced
Deependra Singh Hooda, has
been fighting several problems
faced by new entrants into a
high-profile job, including dis-
gruntled colleagues. Hooda’s
men have not been exactly
cooperative but Ramya has
been given a free hand by
Rahul Gandhi.
The AICC has also loosened
the purse strings for her. Ramya
and her team will not only
handle Rahul Gandhi’s Twitter
handle @officeofRG but will
also question government
policies and functioning on
micro-blogging sites.
NEW GLAM
QUOTIENT
There is quiet satisfaction when predictions come
true. It was in the July 17 issue of India Legal that
this column speculated on the elevation of MEA
spokesperson Gopal Bagley to the PMO. Well, we
are happy to report that we have been bang
on target. On July 22, the appointments committee
of the cabinet (ACC) issued a notification that
Bagley had been appointed as joint secretary.
We had also said that Bagley is likely to be
replaced as MEA spokesperson by Ravesh Kumar,
consul general in Frankfurt. Well, that change has
also happened.
Prime Minister Narendra Modi doesn’t fail
to surprise. Take the appointments to key
posts in the new President’s secretariat.
They were made full four days before Ram
Nath Kovind took oath as the 14th
President. This, many bureaucrats point
out, goes against tradition since it is
unusual to make appointments before the
new incumbent takes charge at the
Rashtrapati Bhavan. Well, Modi seemed in
a hurry to appoint Sanjay Kothari, a retired
IAS officer of the Haryana cadre as the
President’s secretary. But more than
Kothari, may believe that Bharat Lal, the
joint secretary to the new Prez, is the man
to watch out for. The Gujarat cadre officer
was very close to Modi when he was the
Gujarat Chief Minister and is likely to play
a significant role in Rashtrapati Bhawan.
Last but not the least is the elevation of
journalist Ashok Malik as the press secre-
tary to the President. This is considered
as just desserts for a scribe who has been
dedicated to the BJP ever since the days
of the Ram Mandir movement,
NAMO’S SURPRISE
BANG ON TARGET
Who will fill the slot that will be
left vacant in the Rajya Sabha
should Venkaiah Naidu assume
office as the Vice-President of
India on August 5? If the
grapevine in the BJP is to be
believed, then the frontrunners
are Ram Madhav and P
Muralidhar Rao. Both are
currently party general secre-
taries and hail from Andhra
Pradesh and Telangana
respectively. Ram Madhav’s
USP is that he is close to the
RSS and has for long been part
of its think-tank. Muralidhar Rao
has his association with the
Swadeshi Jagran Manch. No
one in the BJP is
certain who will
emerge as the
choice. That,
as they say, is
best left to
the PM.

The Supreme Court observed that it was
willing to re-examine certain proposals of
the Lodha committee so that the “gentleman’s
game remains nearly perfect”. The major are-
as of discomfort put up before the Court by
BCCI relate to the number of national selec-
tors, criteria set for appointing selectors, one-
state-one-vote rule and conditions earmarked
for associate memberships. However, the
Court made it clear that the BCCI must imple-
ment the recommendations to the extent pos-
sible, barring those which it had brought up
before the Court.
Meanwhile, former BCCI president N Sri-
nivasan and BCCI administrator Niranjan Shah
were debarred by the Court from attending its
next Special General Body Meeting (SGM).
The court-appointed Committee of
Administrators (COA) had complained that
both Srinivasan and Shah had managed back-
door entries to attend the SGM on June 26 as
“nominees” from their respective cricket asso-
ciations. They had “hijacked” the meeting and
threw a spanner in implementing the Lodha
panel reforms, the COA alleged. Srinivasan
and Shah were disqualified from attending
BCCI meetings as per the Lodha panel rules.
The Court said only BCCI office bearers
will attend the meetings. It asked the BCCI to
call the next SGM for implementing the Lodha
reforms and get back to it on “difficult” areas.
The next hearing is on August 18. In the July
26 meeting, the SGM raised five issues of
concern instead of the four red flagged earlier.
The matter related to the killing of Kashmiri
Pandits in the Valley during 1989-90 came
up before the apex court. A PIL wanted a fresh
probe into several cases of murder and looting
of Pandits who had to escape from the Valley.
The PIL was filed by Roots of Kashmir. Its
counsel pleaded that more than 200 FIRs reg-
istered and linked to the killing of 700 pandits
were still to be probed, including those men-
tioning JKLF leaders Yasin Malik and Farooq
Ahmed Dar alias Bitta Karate. It also alleged
that the centre and state did not pursue the
matter and the Pandits could not be part of the
probe as they were away from the Valley. It
pleaded that only the Supreme Court could
provide justice to the community.
Dismissing the PIL, the Court said that 27
years had passed but the petitioner had not
raised the issue. It ruled that it was too late to
re-examine the FIRs as “no fruitful purpose
would emerge”. In all likelihood, evidence
would not be available, the court felt.
Why no CBI
probe into SIMI
killings?
Courts
10 August 7, 2017
The Supreme Court dem-
anded an explanation from
the centre and the Madhya
Pradesh government on why a
CBI probe had not been initiat-
ed into the killing of the eight
undertrials, allegedly members
of the Students Islamic Fede-
ration of India (SIMI) in
October last year in the state.
The undertrials were lod-
ged in Bhopal central jail. The
state government had claimed
that they had escaped from
the high security prison and
were killed in a gunfight with
the police, but later, allega-
tions surfaced that they
had been killed in a state-
managed encounter.
Under pressure, the state
government had ordered a
judicial probe done by a one-
man commission.
The mother of one of the
members killed, Mehmooda
Mohammed Salim Mucchhale,
filed a Special Leave Petition
in the Court, pleading that the
on-going probe could not be
relied upon and wanted an
independent CBI or SIT inves-
tigation under the Court’s
supervision. The Madhya Pra-
desh High Court had earlier
turned down her request.
The petitioner claimed that
the one-man commission had
not yet heard the family mem-
bers of those killed nor allo-
wed them to cross-examine
the witnesses.
Later, the Court issued
notices to CBI, the centre and
the Madhya Pradesh govern-
ment on the plea.
Too late to re-examine
Pandits’ killings
SC may revisit Lodha reforms

The Delhi High court asked the Delhi police and
Subramanian Swamy to respond to issues raised
by Sunanda Pushkar’s son Shiv Menon. Menon had
questioned Swamy’s locus standi in the case and
objected to the BJP leader asking for a multi-agency
court-monitored probe, alleging that his motive was
to gain publicity. He prayed that Swamy should not
be given a copy of the status report filed by the
Delhi Police He even sought a restraint order against
Swamy, which the court declined. Delhi Police is yet
to file its latest probe report. While expressing con-
cern over the police failure to file a chargesheet
even after more than three years, the Court was
rather taken aback by Menon’s stance and wanted
to know the reason behind opposing Swamy, who
had pointed towards the delay and wanted the case
to be taken away from the Delhi Police.
Delhipoliceslammedin
SunandaPushkarcase
The Madras High
Court ruled that
Vande Mataram must
be sung/ played in
Tamil Nadu regularly.
While schools, colleges
and universities were
asked to do it at least
once a week (Monday or Friday),
government offices, private compa-
nies and industries had to ensure
that the national song was sung at
least once in a month.
Justice MV Murlidharan also
ruled that people who had genuine
problems in singing Vande Mataram
should not be forced. A translated
version of the song in Tamil and
English must be uploaded on the
state government’s website and
circulated on social media, he said.
Linking his order to patriotism, the
judge insisted that Vande Mata-
ram must be sung by people “fre-
quently” and “from different walks
of life”.
Meanwhile, the SC is examining
the issue of framing a national poli-
cy to promote and propagate Vande
Mataram. It observed that Article
51A(a) only refers to national flag
and national anthem.
The centre told the Supreme Court that it would
submit a comprehensive affidavit filed by scien-
tists explaining the issues raised by petitioner Aruna
Rodrigues on GM Mustard cultivation and trials.
The Court asked it to do so by July 28. It also ruled
that the government must not go ahead with any
activity on GM Mustard, or else a stay on commer-
cial cultivation was inevitable. The next hearing is
on July 31.
The counsel for Rodrigues alleged that the centre
was conducting open field trials without proper
tests, and this could affect indigenous varieties of
mustard crops. Greenhouse experimentation could
be carried out, the counsel suggested. Earlier, the
centre tried to allay fears of the petitioner by claim-
ing that no decision on commercial production had
been taken and even if seeds were sowed, two
years would be needed to commence production.
Centretosubmitscientific
reportonGMMustard
— Compiled by Prabir Biswas
The appointment of “Shiksha
Mitras” as full-time teachers in
primary schools of UP was struck
down by the Supreme Court.
“Shiksha Mitras” were recruited by
the state government in 1999 to
enable children’s education in rural
areas. The state government regu-
larised them as teachers in junior
schools in May 2014, by relaxing
the rules of recruitment set by the
National Council Teachers’ Edu-
cation in 2010, which required them
to pass the intermediate exam to
be eligible.
The verdict will affect 1.78 lakh
“Shiksha Mitras”. The Court ruled
that they did not have the qualifica-
tions as decided by the centre
under the Right of Children to Free
and Compulsory Education Act
(RTE). It observed that the Act
clearly says that children aged 6-14
years have the right to receive edu-
cation only from qualified teachers.
Upgrading of “Shiksha Mitras” as
regular teachers without requisite
qualifications could not be allowed,
it ruled, and pointed out that losing
jobs was not important at the cost
of fundamental rights of children.
However, it clarified that those who
had acquired the qualifications in
the meantime should be considered
for appointments and allowed to
enjoy the same terms as before.
The Court was hearing a chal-
lenge against the Allahabad HC ver-
dict, which struck down the UP
government’s move.
Question over
regularising
“Shiksha Mitras”
Vande Mataram a must
in Tamil Nadu

Briefs
Chhattisgarh minister Brijmohan
Agrawal has been accused of devel-
oping a village into an international
tourist destination which sits on 4.12
hectares of state forest land. The vil-
lage, Jalki, was marked for special
development work by the state govern-
ment. Agrawal was also a member of
the cabinet that approved setting up of
a committee to decide on the matter.
This is contrary to the claims of the
minister that he and his wife had not
done anything wrong and were
unaware of the land belonging to the
forest department. The minister’s wife
also planned to build a resort on the
land along with her son. Chhattisgarh
Chief Minister Raman Singh has issued
an inquiry in the matter asking for a
report from the chief secretary.
Finance Minister Arun Jaitley intro-
duced a bill which gives RBI the
authority to direct banking companies
to resolve the problem of stressed
assets. Titled, Banking Regulation
(Amendment) Bill, 2017, it seeks to
amend the Banking Regulation Act,
1949, and also to replace the Banking
Regulation (Amendment) Ordinance,
2017, which was floated in May this year.
With this bill, the RBI is being empow-
ered to refer the cases to Insolvency and
Bankruptcy Board in the backdrop of
non-performing assets of banks hitting
over `9 lakh crore.
The women and child develop-
ment ministry has launched
an online platform to enable
women employees of the central
government to file complaints
related to sexual harassment at the
workplace. A national survey will
be conducted soon to assess the
nature and magnitude of the prob-
lem. Officials have been asked to
make the “SHe-box”, or the sexual
harassment electronic box, as
“interactive” as possible. Its ambit
will be widened to include women
employees in the private sector
as well. The decision to launch the
“SHe-box” was taken in October
2016, following complaints from
various government departments.
Victims can report incidents di-
rectly on this box. Once received,
the complaints will be taken up
with the respective ministries or
departments.
The Rashtriya Swayamsevak Sangh’s
economic wing, the Swadeshi Jagran
Manch (SJM), which promotes indige-
nous goods, has slammed the centre by
claiming that the newly-introduced
Goods and Services Tax will badly hit
small scale industries (SSIs) and push
more Chinese goods into the Indian mar-
ket instead. SJM’s national co-convener,
Dr Ashwani Mahajan, has claimed in an
article written by him in the July edition
of Swadeshi Patrika (the mouthpiece of
the SJM) that there is currently a
provision or exemption in excise
duty for production of up to `1.5
crore in small scale industries.
“However, according to the provi-
sions of GST, any entity whose busi-
ness is `20 lakh or more, must reg-
ister itself for GST in the state where
it carries its business. In the special
category states, this limit is only 10
lakh rupees,” the article said.
RSS slams GST on SSIs
12 August 7, 2017
WCD ministry
launches SHe-box
AColonel has slapped a legal
notice on defence secretary
Sanjay Mitra over the scrapping of
free rations to army officers serving
in non-conflict areas. The govern-
ment has decided to give officers
in peace areas an allowance of
`96 for daily purchases instead of
free rations. Several army officers
have spoken against the decision.
Colonel Mukul Dev said he would
move court if the order was not
revoked within 60 days.
As of now, soldiers continue to
draw free rations in both peace
and field areas.
Legal notice for not
supplying free rations
—Compiled by Lilly Paul
Minister
undercloud
overforest
land
Banking Regulation Bill
introduced in parliament

Lead/ Indo-China Stand-off
14 August 7, 2017
LTHOUGH it has been
over five weeks since the
face-off between Indian
and Chinese troops start-
ed in the strategically
important Doklam area
in the India-China-Bhutan tri-junction,
there is no sign of easing of tensions. It
all started in mid-June when Indian
troops joined the Royal Bhutanese army
to physically prevent Chinese PLA engi-
neers from constructing a road in the
disputed area.
When the news hit the Indian media
with visuals of Indian and Chinese
troops scuffling with each other, China’s
state-controlled media let loose a bar-
rage of propaganda, misinformation,
threats and reminders of PLA prowess.
The provocative tone of the op-eds on
A
TheconfrontationinDoklamareaisnotjustaboutIndianintrusionintoadisputedterritorynear
Bhutan.ItisaboutIndiashowingthatitcannolongerbetakenforgranted.Willitfulfillthe
obligationsofArticle2oftheIndia-BhutanFriendshipTreaty?
By Colonel R Hariharan
A Battle
of Nerves
such a subject in the Communist party
tabloid, Global Times, is nothing unusu-
al. But when Xinhua and China Daily
also joined the chorus, reminding India
of its 1962 defeat, it probably was an
indication that the Doklam standoff
may well be part of a larger campaign to
“cut down India to size”.
This should be seen in the light of
growing Indo-US defence cooperation,
Photos: UNI

particularly after Prime Minister Nar-
endra Modi met President Donald
Trump for the first time in June. This
resulted in India acquiring state-of-the-
art military equipment and augmenting
defence capabilities in sea, air and land.
Also, India indicated that it would not
sacrifice its national interests and terri-
torial sovereignty in Pakistan-occupied
Kashmir in order to join the Belt and
Road Initiative which Beijing had con-
vened. India had no other option but to
stay out of the summit after the China-
Pakistan Economic Corridor (CPEC) not
only violated Indian territory, but quali-
tatively changed its strategic equation
with both countries.
T
he Doklam standoff is not merely
related to Indian intrusion in
269 km of disputed territory
along the Bhutan border. It is a moment
of truth for India as well as China in fur-
thering their relations peacefully. India’s
patchwork relations have come a long
way since Modi spread out the red car-
pet to Chinese President Xi Jinping.
India has become more assertive and
articulate in stating its case at interna-
tional forums, whether it is China’s
selective approach to Pakistani terror-
ism or its admission into the Nuclear
Suppliers Group.
The standoff is already impacting
Indo-China relations at the bilateral,
regional and international levels. Even
when both sides decide to cool their
rhetoric and sit down to devise a face-
saving measure, we can expect this to
influence relations at the strategic, eco-
nomic and political levels.
President Xi is looking for a second
term in office from 2018. The Congress
of the Communist Party of China (CPC)
in September 2017 will decide this. By
all indications, he would probably be re-
elected. During the first five-year term,
he carried out sweeping reforms to erad-
icate corruption in the CPC, PLA and
the government. His contenders have
fallen by the wayside. He has emerged
as the most powerful leader of China
after Mao Zedong and Deng Xiaoping
and controls all three arms of China—
the party, PLA, and the government. So
he cannot afford a loss of face by simply
shaking hands with India after its troops
entered Doklam Plateau.
High expectations were built when
Modi embarked on his jhoola strategy to
win over Xi during his visit to India in
September 2014. Xi also seemed to
reciprocate it. Despite sticking to their
national agendas, both showed maturity
in not allowing the compulsions of
realpolitik to allow their relations to
drift. Though the Doklam incident has
the potential to reduce it to an aspira-
tional level, sheer economic compul-
sions, where overall trade between the
two countries is $70 billion a year, may
force them to bury the hatchet. Wars are
expensive and counter-productive.
But not to be missed in the Doklam
incident is China’s use of a national
strategy where psychological warfare
was waged using multi-media, propa-
ganda and legal props. This was evident
when sober Chinese media like
STRATEGIC TIES
Prime Minister Narendra Modi meeting
Chinese President Xi Jinping in Kazakhstan
TheDoklamstandoffisnotmere-
lyrelatedtoIndianintrusion
alongtheBhutanborder.Itisa
momentoftruthforIndiaand
Chinainfurtheringtheirties.
ThePoliticsofTerritory
The Doklam Plateau is a narrow region lying in the tri-junction
of Bhutan, China and India
Doklam
Sikkim

16 August 7, 2017
Xinhua played down the stand-off ini-
tially, but slowly changed their tone
after the Modi-Xi meeting on the side-
lines of the G-20 summit at Hamburg
three weeks ago failed to ease the ten-
sion. Their meeting, despite the smiles,
hearty handshakes and five-minute
exchange of pleasantries, showed that
India and China were not on the same
page on finding a solution to the
Doklam gridlock. Their mutually appre-
ciative references to each other’s contri-
bution to BRICS indicated that their act
was carefully calibrated to prevent rela-
tions from being strained further.
After G-20, there was no stopping
the Chinese media and it went into an
overdrive with a cleverly plotted propa-
ganda campaign. It carried veiled
threats of an imminent attack on India
and probably even planted fake news of
158 Indian troops killed in clashes in
Pakistan’s TV channel Dunya (later
denied by the Chinese). It also had
agenda. Some defence analysts like Lt
Gen Harcharanjit Singh Panag remind-
ed the Chinese of the high costs of a
similar adventure in 1967 in the same
area along the Sikkim border. That’s
when the Chinese lost 400 lives while
Indian losses were barely one-fifth of it.
Overall, the Chinese seem to have
won the propaganda war because Indian
media stories were reactive or mere
reproductions of Chinese statements.
This is the price democratic societies
pay for protecting freedom of expres-
sion. In times of war, this can hobble
India, unless it takes the impossible
option of blocking Chinese media.
There was also the orchestration of
foreign policy objectives which suited
China’s system of governance. There
were the usual blow hot, blow cold
statements from the Chinese foreign
and defence ministries. For example,
Chinese Foreign Minister Wang Yi’s
statement on July 25 that Indians had
“admitted” to entering Chinese territory
and the “simple solution” was for its
troops to “conscientiously withdraw”
indicate that “withdrawal” was the core
reports of a massive build-up of PLA
troops and movement of armaments
and testing of new tanks for fighting in
Tibet. Even a routine military exercise
was painted to show as a preparation for
war, with a reminder to India of its
defeat in 1962. The Chinese media cam-
paign was mixed with fact and fiction,
appeals to patriotism, citing of interna-
tional law to interpret boundaries and
treaty obligations, raising the five princi-
ples of Panchsheel and interspersing
these with reports of PLA’s prowess and
the dangers of India “day dreaming”.
Most of these stories were faithfully
reproduced in India’s free media, which
carried wide-ranging op-eds advising
the government not to give an inch of
territory and not to go to war as it
would kill the country’s development
Chinawagedpsychologicalwar-
fareusingmulti-media,propa-
gandaandlegalprops.Sober
ChinesemedialikeXinhuaplayed
downtheDoklamissueinitially.
INDIA ABSENT
President Xi Jinping (sixth from front row)
at the Belt and Road Forum in Beijing

ests. Neither Government shall allow
the use of its territory for activities
harmful to the national security and
interest of the other.”
In fact, uncontrolled entry of Tibetan
grazers and Chinese soldiers in Doklam
Plateau had figured during 24 rounds of
border talks between China and Bhutan.
Indian troops went in to support the
Bhutanese army which had protested
when the Chinese started constructing a
road through the Dolam (Bhutanese
name for Doklam) to the tri-junction
area. The tri-junction is close to the
Siliguri corridor, a narrow 21-km strip of
land that provides the lifeline between
the North-east and the rest of India.
China has a history of providing arms to
insurgent movements in the North-east.
So there was no question of India allow-
ing the Chinese to occupy Doklam
Plateau as it would compromise the
security of India and Bhutan.
issue for China. Its foreign ministry
spokesman, Lu Kang, elaborated it in a
media briefing a day later: “…the crux of
the incident is that the Indian border
troops illegally trespassed into Chinese
territory and the solution….is for Indian
troops to pull out unconditionally. This
is a precondition basis for any meaning-
ful dialogue between the two countries.”
On the other hand, Chinese defence
ministry spokesman Col Wu Quan
warned India not to “push your luck”
and underestimate the PLA. “China’s
determination and resolve to safeguard
national security and sovereignty is
unshakable,” he added.
I
ntrusion of troops into disputed ter-
ritory between the borders of both
countries is not uncommon because
it is part of showing their claim to the
territory. The Chinese often flaunt their
military muscle by intruding into India’s
border, particularly when its leaders
visit India. Even when Xi was on his
maiden visit to India in September
2014, Chinese troops had intruded near-
ly one-and-a-half kilometres in sizeable
strength across the Line of Actual
Control in Ladakh. Similarly, a few days
before Chinese premier Li Keqiang was
to visit India in May 2013, there was a
face-off when Indian troops stopped
intruding Chinese troops in Ladakh.
But the Doklam stand-off is not like
other intrusions. This was the first time
India entered Bhutan’s disputed area in
aid of Bhutanese troops. The Chinese
seemed peeved that India intruded into
Chinese territory with impunity and
muscled into a bilateral issue between
China and Bhutan. All these years,
China had been accustomed to India
playing down Chinese intrusions.
This time, India showed that it could
not be taken for granted and that it
would support Bhutan to fulfill the obli-
gations of Article 2 of the India-Bhutan
Friendship Treaty 2007. Article 2 states:
“In keeping with the abiding ties of close
friendship and cooperation between
Bhutan and India, the Government of
the Kingdom of Bhutan and the
Government of the Republic of India
shall cooperate closely with each other
on issues relating to their national inter-
EASING MATTERS
Indian National Security Advisor Ajit Doval
(extreme left) at a meeting with Chinese
President Xi Jinping in Beijing on July 28

18 August 7, 2017
Clarifying India’s stand in the Rajya
Sabha, External Affairs Minister Sush-
ma Swaraj said that any unilateral
altering of the border by China would
amount to a “direct challenge” to India’s
security. She said they brought bull-
dozers and earth excavators to build
a road and their “intention is to reach
the tri-junction of India-China-Bhu-
tan…. If there is to be sit-down talks,
then both countries should withdraw
their soldiers”. This was India’s bott-
omline. Indications are that China
would reciprocate by defusing an explo-
sive situation.
Indian troops are placed in a tactical-
ly advantageous position in the Doklam
Plateau which overlooks Chumbi Valley
in Tibet. So it may not be prudent for
the Chinese to fight a battle there. But
that does not prevent its troops from
indulging in muscle-flexing. They also
have the option to create another con-
frontation along the Arunachal-Tibet
border like they did in 1987 at Sum-
drong Chu overlooking Tawang. Unless,
the situation is eased off diplomatically,
in many of the ministries, has not done
so in defence. The reforms carried out
so far are too few and too slow.
Unless there is a full-time defence
minister accountable to the nation, in
times of war we may well face a repeat
of 1962. This disastrous war is an exam-
ple of “the three ways in which a ruler
can bring misfortune upon his army” to
quote Sun Tzu’s classic The Art of War.
Sun Tzu’s list includes:
Hobbling the army by “commanding
the army to advance or retreat, being
ignorant of the fact that it cannot obey;
“Attempting to govern the army in the
same way he administers a kingdom
being ignorant of the conditions which
obtain in the army. This causes restless-
ness in the minds of soldiers.”
Employing the officers of the army
“through ignorance of the military prin-
ciple of adaptation to circumstances.
This shakes the confidence of the
soldiers”.
Can we change this style if we are
serious about the nation’s security? Let
us hope so.
these may well remain the military
options for China.
India and China have working moda-
lities in place to handle such situations
and avoid armed confrontation. This
arrangement had been working reason-
ably well because both sides want to
maintain peace along the border.
Ajit Doval, India’s National Security
Advisor (NSA) who was in Beijing to
attend BRICS, discussed the issue with
his Chinese counterpart and other lead-
ers. Moderate sentiments seeking to
avoid a conflict in social media increase
hopes that the NSA will succeed in a
plan to ease the confrontation at Dok-
lam Plateau.
Perhaps the weakest link in our abili-
ty to wage war is the amorphous and
opaque national security decision-mak-
ing process. In times of war, if Finance
Minister Arun Jaitley has to handle the
defence ministry as well, he would need
to become a superman to excel on both
fronts. Both the ministries have a heavy
backlog of work and after years of tin-
kering with patchwork solutions, they
suffer from non-performing assets of a
dubious value. It is baffling why Modi,
who has been keen to carry out structur-
al reforms and systemic improvements
AIMING RIGHT
People's Liberation Army soldiers practise
shooting at a military base
ExternalAffairsMinisterSushma
Swarajsaidthatanyunilateral
alteringoftheborderbyChina
wouldamounttoa“direct
challenge”toIndia’ssecurity.

Fivejudgesoftheapex
courtdisqualifyhim
fromofficeover
undeclaredassetsand
thePanamaPapers
whichlinkhischildren
tooffshorecompanies
By India Legal
Bureau
SC Orders PM’s
ResignationAWAZ Sharif resigned as
prime minister of Pakistan
on July 28 after five judges
of Pakistan’s Supreme
Court unanimously dis-
qualified him from hold-
ing public office for life over corruption.
This involved money laundering and
establishing offshore assets and compa-
nies and which were revealed in the
Panama Papers.
His brother, Punjab chief minister
Shahbaz Sharif, has taken over till elec-
tions, which are scheduled in 2018.
Shahbaz, of course, will have to get elec-
ted as a member of the National Assem-
bly in due course of time.
No Pakistani prime minister has ever
completed a full term in office since its
formation in 1947. In fact, Sharif has
been three times unlucky. He served as
PM from November 1990 to July 1993
and from February 1997 until he was
toppled in a coup in October 1999. The
Supreme Court had wielded its axe on
its 21st prime minister, Yousaf Raza
Gillani, when he was retroactively dis-
qualified and ousted by the court on
April 26, 2012.
The reaction of legal eagles in India
was of euphoria. Not because of the pol-
itics involved, but because of the bold
action of the judiciary in a practically
failed state. Justice NP Chapalgaonkar,
former judge of the Bombay High Court,
told India Legal : “Some sections of the
media in Pakistan said it was a black
day for Pakistan. I think the fact that
Sharif had to resign made it a memo-
rable day for Pakistani jurisprudence as
well as governance. Such an incident,
where constitutional and moral probity
were held high, is a welcome thing.
There are lessons in this for all of South
and South East Asia. We, in India, can
learn from it too. One needs to under-
stand that corruption in governance and
in public polity cannot be tolerated.”
The hearings in Sharif’s case were
spread over nearly 15 months and were
often marred by controversy. This was a
criminal case and the Supreme Court,
an appellate body, had initially refused
to hear it. But later, it not only admitted
the petition, but started its own probe
into the case.
Leading Pakistani newspaper Dawn
said: “Justice Ejaz Afzal Khan, who had
headed the apex court’s implementation
bench following its April 20 order on
the Panama Papers case, announced
that the larger bench had unanimously
deemed Sharif unfit for holding office
and would also order an accountability
N
Legal Eye/ Pakistan/ Nawaz Sharif’s Ouster
IGNOMINOUS EXIT
Nawaz Sharif has been barred from holding
public office for life
Photos: UNI

Legal Eye/ Pakistan/ Nawaz Sharif’s Ouster
court to open references against him
and his family.”
The court has ordered the case agai-
nst Sharif to be referred to the National
Accountability Bureau, said Justice
Khan. That will continue as a criminal
case, looking into the massive corrup-
tion charges levelled against him. The
charges against Sharif include money
laundering to buy assets in London in
the 1990s. The 2016 Panama Papers
leak revealed that the assets were being
managed through offshore companies
owned by Sharif’s children.
The court took pro-active steps and
asked the Election Commission of Pak-
istan (ECP) to de-notify the PM to fulfil
the technicalities of implementing the
order. The court order said that the ECP
should deseat the PM for not disclosing
his role in the Dubai-based Capital FZE
Company in his nomination papers.
I
t is not clear how this development
would affect India’s relations with
Pakistan. Tensions have remained
high between the two countries with
continual cross-border firings and ter-
rorist infiltrations. Fears of another
army takeover of the country were not
unfounded and that could totally alter,
even harm, the negotiations that have
taken place so far.
The official Indian reaction so far has
been cautious, with the government ref-
raining from commenting on the ouster
of Sharif. Delhi, though, “is keeping a
close watch”, was the official version. It
may be recalled that the personal equa-
tion between Prime Minister Narendra
Modi and Sharif kept going despite skir-
mishes across the border.
Justice Chapalgaonkar also said that
there was the fear of yet another Army
coup, quite common in Pakistan. “That
would be dangerous for India and the
relationship between the two countries.
Considering that, I think it was good
that Sharif’s brother took over quickly,
keeping the nation’s governance in civil-
ian hands,” he said.
He said the sanctity of judicial action
and its observations “can be an example
for us” in dealing with the many corrupt
elements in Indian politics. While he
did not directly refer to anybody, the
immediate reference could be to the
break-up of the Bihar government. In
this case, RJD chief Lalu Prasad Yadav
had insisted that his son, Tejashwi Yad-
av, would not demit the office of deputy
CM despite being implicated in a dis-
proportionate assets case by the CBI.
Whatever is the future of Pakistani
politics, its judiciary has been hailed.
“Suchanincident,whereconstitution-
alandmoralprobitywereheldhigh,isa
welcomething.Therearelessonsin
thisforallofSouthandSouthEast
Asia.We,inIndia,canlearnfromittoo.”
—JusticeNPChapalgaonkar,former
judgeoftheBombayHighCourt
JUBILANT OPPOSITION: Opponents of
Nawaz Sharif celebrate outside the apex
court in Islamabad on July 28
20 August 7, 2017

and Directive Principles of State
Policy.
This debate came up for the
first time in the Supreme Court in
1954 with MP Sharma v Satish
Chandra. Ratio decidendi of the
case was only confined to
whether search warrants issued
under section 138 of the Indian
Companies Act, 1913 is violative of
Art 20(3) and 19(1)(f) of Indian
constitution.
The eight-judge bench did discuss
the term right to privacy in terms of the
4th and 5th Amendment of the consti-
tution of America but it was felt that
there was no need to adopt a new fun-
damental right into the constitution.
The court noted: “A power of search and
seizure is, in any system of jurispru-
dence, an overriding power of the State
for the protection of social security and
that power is necessarily regulated by
law. When the constitution makers have
thought fit not to subject such regula-
tion to constitutional limitations by
recognition of the fundamental right to
privacy, analogous to the American
Fourth Amendment, there is no justifi-
cation for importing into it, a totally dif-
ferent fundamental right by some
process of strained construction.”
Kharak Singh v State of Uttar Pra-
desh, for the first time in 1963, specifi-
cally raised the issue of whether right to
privacy falls under the ambit of funda-
mental rights, such as, Article 19(1)(d),
19(1)(e) and 21. The majority of the six-
judge bench laid down that the said
right is not guaranteed under our con-
stitution. However, the minority deci-
sion by Justice K Subbarao was of the
view that right to privacy can be inferr-
ed from the term “personal liberty” in
Article 21.
HO would have tho-
ught that “privacy”
would seek the
attention of a
nine judge
bench of the
Apex Court and become a con-
stitutional issue? The right to
privacy has evolved as a very fas-
cinating development in the
jurisprudence of the Indian
constitution as the debate arose
because of the wide interpretation
given to Article 21 of the constitution of
India by the Supreme Court post the
Maneka Gandhi passport impounding
case in 1977.
The debate is significant since India
has ratified the International Covenant
on Civil and Political Rights (ICCPR)
which elaborates under Article 17 that
the government is under obligation to
safeguard the right to privacy to each
individual. Similarly, Article 12 of the
Universal Declaration of Human Rig-
hts states that every citizen should be
protected from any kind of arbitrary
interference.
The issue, which has come up for
adjudication to the nine-judge bench of
the Supreme Court, will look at whether
two earlier judgments of the apex court
in the MP Sharma v Satish Chandra
(1954) and Kharak Singh v State of
Uttar Pradesh (1963) in which the court
ruled that privacy is not a fundamental
right is still good in law.
As the Supreme Court itself set out
the agenda before the nine-judge bench:
“It is essential for us to determine
whether there is a fundamental right to
privacy in the Indian constitution.
Determination of the question would
essentially entail whether the decisions
in MP Sharma by an eight-judge Bench
Supreme Court/ Privacy Debate
and Kharak Singh by a six-judge Bench
that there is no such fundamental right
is the correct expression of constitution-
al provisions.”
AN OLD DEBATE
The ambiguity vis-à-vis privacy as a
fundamental right has arisen because
the Indian constitution does not exp-
ressly provide for the term “right to pri-
vacy” but the Supreme Court has culled
it from various articles of the Indian
constitution including Article 21, 20(2)
Shades of Grey
Privacyasa
fundamentalrighthasnot
beenclearlydefinedbythe
constitutionandsubjectedto
variousinterpretations.Itisthis
ambiguitythathastobe
resolvedbythenine-judge
benchofapexcourt.
By Vinay Vats
W

AnandGrover,senior
advocate
HesubmittedthatArticle19
and21arelinkedandcon-
tainelementsofrighttopri-
vacy.Hecontendedthat
thereisnodignitywithout
privacyrelatingittoArticle
21oftheconstitution.
MeenakshiArora,senior
advocate
Shepointedoutthatthe
observationsbytheeight-
judgeandsix-judgebenchin
theMPSharmaandKharak
Singhcaseswere“stray
observations”whichare
erroneoustoday.
GopalSubramanium,
senioradvocate
Hesaidtherighttoprivacyis
thecoreofArticle21and
thishasnowbeensettledby
aseriesofjudgments.The
judgmentsinMPSharma
andKharakSinghcasesare
nolongergoodinlaw.
22 August 7, 2017
Supreme Court/ Privacy Debate
In Govind v State of Madhya Pradesh
(1975), the Supreme Court took a more
elaborate view and accepted a limited
fundamental right to privacy under
Article 19(a), (d) and 21 but observed
that it is not absolute and reasonable
restrictions can be imposed on it in pub-
lic interest. In Maneka Gandhi v Union
of India [1978], the Supreme Court laid
down a number of provisions which
made “right to life” or “personal liberty”
more meaningful.
Again, in 1995 in R Rajagopal v State
of Tamil Nadu, also known as “Auto
Shanker Case”, a two-judge bench of the
Supreme Court expressly held that right
to privacy of one’s own, one’s family,
marriage, motherhood, procreation and
right to be let alone is guaranteed under
Article 21 of the constitution and no one
can publish details concerning above
matters without the person’s permi-
ssion unless if what is published is based
on court records. The case had come up
after a Tamil weekly wanted to publish
the autobiography of serial killer, Auto
Shanker, which the publication alleged
he had written from his cell in death
row and sent across through a lawyer.
The Tamil Nadu government had oppo-
sed the publication of Shanker’s memoir.
In this case, the apex court ruled that in
the absence of any letter from the con-
demned prisoner or proof confirming
that he had indeed written his life story,
the Tamil weekly could only publish
those portions which were in the official
court records. Printing anything else in
the public domain would mean invasion
into the privacy of the condemned man
and his family.
Similarly, Supreme Court in People’s
Union for Civil Liberties v Union of
India (1997) observed that right to pri-
vacy is a part of right to life and liberty
enshrined under Article 21 of the consti-
tution. Although right to privacy has
established itself in India, it is not an
independent fundamental right but as a
part of Article 21. It can also not get
complete sanctity because of the majori-
ty view given in Kharak Singh v State of
Uttar Pradesh which was delivered by
an eight-judge bench.
There are essentially two lines of
argument emerging from the debate.
The first deals with the earlier decisions
of the Supreme Court and the other is
all about delineating the right to privacy
in today’s context.
PETITIONERS’ STAND
Arguing in the present case, which has
come up in the context of the Aadhaar
card-biometrics controversy, senior
advocate Gopal Subramanium contend-
ed that right to privacy is the core of
Article 21 and that this has now been
settled by a series of judgments deliv-
ered in RC Cooper v Union of India
(1970), Gobind v State of MP (1975),
Maneka Gandhi v Union of India
(1978), R Rajagopal v State of TN
(1994), PUCL v Union of India (1997),
Sharada v Dharampal (2003), District
Collector v Canara Bank (2005), Selvi
v State of Karnataka (2010) etc. The
judgments in MP Sharma and Kharak
Singh cases are no longer good in law.
His contention was that the preamble of
the constitution uses two words, “dignity
and liberty” and privacy is embedded in
both these.
Shyam Divan, appearing for several
petitioners, argued that there are a ser-
ies of decisions since 1975 which recog-
nise right to privacy and it includes
KKVenugopal,Attorney
General
Hesubmittedthatprivacy,
asafundamentalright,
couldhavebeenmentioned
inArticle21,butwasdelib-
erately omitted.Righttopri-
vacycannotbeconsidered
asabsoluteorunqualified.

right to be left alone, freedom
of thought, freedom to dissent,
bodily integrity (personal
autonomy and the self-deter-
mination of human beings over
their own bodies), information-
al self-determination. Conti-
nuing this argument, senior
advocate Soli Sorabjee con-
tended that although no exp-
ress term of right to privacy is
mentioned in the constitution,
but the same has to be con-
strued in consonance with
present developments.
It was argued by senior
advocate Arvind Datar that the
MP Sharma and Kharak Singh
cases were related to search/
seizure and surveillance respec-
tively and did not talk about
right to privacy. He also point-
ed out that if the US can recognise right
to privacy as a fundamental right then
why can’t India?
Urging that fundamental rights be
given an expansive interpretation, senior
advocate Anand Grover submitted that
Article 19 and 21 are linked and contain
elements of right to privacy. He also
contended that there is no dignity with-
out privacy relating it to Article 21 of the
constitution of India.
Senior advocate Sajan Poovayya sub-
mitted that the constitution being a liv-
ing document, it becomes imperative
to construe its provisions in the light of
the prevailing circumstances and
jurisprudential mores. Senior advocate
Meenakshi Arora pointed out that the
observations by the eight-judge and six-
judge bench in the MP Sharma and
Kharak Singh cases were “stray observa-
tions”which are erroneous today and the
present court should clarify the same.
Senior advocate Kapil Sibal appear-
ing for the states of Karnataka, West
Bengal, Punjab and Puducherry submit-
ted that data protection principles qua
state includes necessity, legitimate inter-
est, and proportionality and procedural
reasonableness. Right to privacy enjoins
the state to put in place a robust data
rights will be like injecting it into Part
III of the constitution and that can only
be done by a constitutional amendment.
He also contended that dignity is a goal
of the preamble but privacy is not. Pri-
vacy is totally a foreign concept.
Now the question arises, as posed by
Justice Dhananjaya Y Chandrachud: If a
person is ready to give his fingerprint to
Apple which is a foreign company, then
why not to Aadhaar? Or in the words of
Justice Jasti Chelameswar, is collection
of data without consent of an individual
violative of liberty? Being part of society,
an individual needs his space but the
issue is to what extent can he /she claim
it as a right. The Supreme Court will
soon define this in its judgment which
may change the fate of many govern-
ment initiatives and can reopen several
matters already adjudicated by the
Supreme Court.
protection law so that non-citizen actors
collecting data are also bound.
GOVERNMENT’S STAND
The Attorney General KK Venugopal
appearing for the government of India
started his arguments by reading Article
19 and 21 of the constitution. He sub-
mitted that privacy, as a fundamental
right, could have been mentioned in
Article 21, but has been omitted and this
was deliberate. Right to privacy cannot
be considered as absolute or unqualified
and each and every liberty or right sho-
uld not be elevated to the level of funda-
mental rights. He also contended that if
right to privacy be termed as a funda-
mental right then other fundamental
rights will get defeated.
Backing his arguments, senior advo-
cate Aryama Sundaram submitted that
privacy as a term cannot be defined and
bringing privacy under fundamental
QUESTION OF PRIVACY
The issue of Aadhaar and privacy has got
society and individuals worried and several
protests have been organised against it
Theambiguityvis-à-vis priva-
cyasafundamentalrighthas
arisenastheIndianconstitu-
tiondoesnotexpresslyprovide
fortheterm“righttoprivacy”.
counterview.net

Investigation/ NDMC/ Questionable Deals
24 August 7, 2017
N March 12, 2016, Delhi
Chief Minister Arvind
Kejriwal inaugurated an
App—NDMC-311—at a
function in Central Park.
It seemed a noble effort
in connecting Delhiites to the New
Delhi Municipal Council (NDMC) sys-
tem where they can see status of proj-
ects and file their complaints, as well as
access all civic services. However, inside
the app, there existed a complicated
software enabling corruption. Installed
to last five long years it was progra-
mmed to yield up to `21 crores in dub-
ious payoffs.
The application—the NDMC-311
App—was developed by a Gujarat-based
company, called Civic Solutions Pvt Ltd.
It was (as per its website) incorporated
on March 25, 2015 and registered in
Ahmedabad with a paid-up capital of `1
lakh. Its directors are Atit Tusharbhai
Purani, Jasmine Rakesh Patel, Smital
Kuldipakbhai Pandit and Pandit
Vibhutiben Smitalbhai.
TENDERING AVOIDED
The firm to which an important App
development was assigned by the
NDMC was not even a year old when it
bagged the contract. Also, the tendering
process was avoided by breaking up the
price of the software into several super
high-priced components. This allo-
wed the NDMC to give the contract
to the company through the nomina-
tion process.
Allegations of corruption have
been levelled against two top persons in
the Corporation. While the allegations
have certainly not yet been qualified
with detailed documentation, a comp-
laint letter from an advocate, PK
Chaudhary, has been sent to the office
of the Director of the Central Vigilance
Commission.
According to the allegations, the
I
t is rather intriguing that one of the
directors of Civic Solutions Pvt Ltd, Atit
Tusharbhai Purani, is also director of at
least four other clone-like firms. They all
operate from the same address:
Abhishree Adroit, Mansi Cross Roads,
Judges Bunglow Road, Vastrapur,
Ahmedabad, Gujarat 380015.
Each of these firms, including Civic
Solutions, during their incorporation list-
ed their activities as: “…computer related
activities (for example maintenance of
AnIntriguingWeb
AcontractawardedtoaGujarat-basedfirm
todevelopamobileapplicationfortheNew
DelhiMunicipalCorporationfacesallegations
ofcorruptionandawaitsademandfora
CVCinvestigation.
By Sujit Bhar
Appscam
O

NDMC made an outright purchase and
was the owner of “The Software and
Source Code” of the complaint handling
and grievance redressal system. The
complaint says that the “The NDMC
had purchased the same by paying `15.8
lakh” to the software firm. This was said
to have been a deliberately reduced
price to enable the NDMC chairman to
clear the purchase and exercise the per-
sonal authority he commands of granti-
ng nomination for projects and purchas-
es of up to `20 lakh.
According to the complaint, what
transpired after the tendering process
was avoided was a violation of General
Financial Rules and CVC guidelines.
The approval of the non-tendered nomi-
nation was moved through the NDMC
Council at a meeting where the presid-
ing officer of the Council—a post held by
the Chief Minister of Delhi (in this
instant Arvind Kejriwal)—the designat-
ed MP of New Delhi area, the secretary
of NDMC and all official members were
not present.
DISSENT REPRESSED
The meeting mooted the idea that `11
lakh should be paid annually to Civic
Solutions Pvt Ltd as royalty, and an
“unspecified amount” each year as main-
tenance charges. Many in the depleted
council meeting objected, asking for a
re-negotiation to bring down rates.
The objection failed to gain currency,
says the complaint, and a “fresh propos-
al was prepared” with the royalty section
going up to `24 lakh, while the mainte-
nance charges were upped to `50 lakh
per year. The company was also given an
assurance that five of its employees
would be associated with the project
24x7 and each would be paid at the rate
of `790 per employee per hour. Inte-
restingly, the US Federal Minimum
wage as of May 1, 2017 is $9.20 per hour
which, as per the current exchange rate
of `64.33, comes to `592. It has been
said that some mid-level officials at
NDMC had objected and refused to be
party to the arrangement. The com-
plaint alleges that the Director IT was
changed three times presumably be-
cause each of them had their reserva-
tions about the contract.
COST INEFFECTIVE
But the app, nevertheless, was installed
and launched with much fanfare. The
pay-out from NDMC is seemingly a
good deal for Civic Solutions. But
websites of other firms/creation of multi-
media presentations for other firms etc.)”
All these firms started out with a paid
up capital of `1 lakh (exactly like Civic
Solutions) from the same address—
Abhishree Adroit—although from different
rooms in the same building. The firms
are: Space-O Infoweb Private Limited
(incorporated on August 30, 2012), Room
Nos. 1005, 1007, 1008; Space-O
Digicom Private Limited (incorporated on
September 17, 2012), Room No. 1006;
Upsquare Solutions Private Limited
(incorporated on June 24, 2017), Room
No. 1201 and Spaxi Solutions Private
Limited (Incorporated on May 22, 2017),
Room No 1001. Civic Solutions Private
Limited occupies Room No. 1002 at the
same address.
In India there is a tendency to main-
tain multiple companies with similar
functions to beat the tendering game
through multiple over-quoted false ten-
ders. However, that purpose is defeated
if either the names of the directors are
the same, or if the companies are at the
same address. Hence this multiple identi-
ty existence remains a mystery.
TO MAKE THE CITY SMART?
The NDMC-311-app was launched by Delhi
Chief Minister Arvind Kejriwal (fourth from
left) in 2016

26 August 7, 2017
there is a big question mark on whether
NDMC was paying too much for the
mobile application. Here is a breakdown
of the costs put into perspective:
The NDMC is paying an annual royal-
ty of `24 lakh for a software that it has
bought and owns rights to. A royalty is
paid for commercial use, but that is gen-
erally discontinued after a year. The
NDMC has a royalty payout life of five
years, as per the complaint. Even the
purchase price (`15.8 lakh) was way
lower than the royalty paid.
As general Annual Maintenance
Contract (AMC)—a pre-requisite for
any government contract executed—
the company is being paid a hefty
`50 lakh.
While earlier NDMC contractual staff
was doing similar work for `25,000 per
month, even for staff with higher educa-
tional levels, `790 per hour seems high.
Five such employees will be employed
by Civic Solutions.
As per the contract, if the company’s
staff claims 8 hours work per day for
25 working days, his or her salary would
be `1,58,000 per month. But should
the company claim that a worker
attends his/her work 24x7, that figure
jumps to `5,68,800 per month. This is
too high an amount for any level of
appointment with the government. For
five persons, for a year, this works out
to `3,41,28,000.
Considering the 24x7 deal is through,
the following are the amounts to be paid
(not considering the `15.8 lakh paid in
purchasing the software in the first
place) to Civic Solutions Pvt.Ltd:
Royalty—`24 lakh per annum = (in 5
years) `1.20 crore
AMC—`50 lakh per annum =
`2.5 crore
Payment to workers = `17.30 crore
Total = `21 crore.
The allegation is that a large amount
of money has changed hands. However,
who are the beneficiaries is not clear yet.
Meanwhile, an e-mail sent by India
Legal to Civic Solutions Pvt Ltd director
Atit Tusharbhai Purani for the compa-
ny’s response remained unanswered till
the time of filing this report.
PLAYING FAVOURITES
NDMC headquarters
in Delhi
Asperthecontract,ifthe
company’sstaffclaims8hours
workperday for25working
days,hisorhersalarywouldbe
`1,58,000permonth.
Bhavana Gaur

WO small shops—licensed
to sell poultry products
and meat—in the heritage
Gole Market complex of
Lutyens’ Delhi, barely a
kilometre from Connaught
Place, have brought to light illogical and
possibly illegal activity within the New
Delhi Municipal Council (NDMC).
Rules, including a Supreme Court direc-
tive, have been flouted and fingers are
being pointed to those at the very top of
the food chain.
While the incident is seemingly small
—the de-sealing of the shops after the
NDMC itself had sealed them for several
violations—voices within the NDMC
speak of several laws and rules being
violated. According to a complaint lod-
ged with the Central Vigilance Commi-
ssion (CVC) by advocate PK Chaudhary,
the entire de-sealing was done with
alleged kickbacks to the top manage-
ment of the NDMC. While the corrup-
tion angle remains unqualified in the
complaint, events certainly indicate ille-
gality within a body that has been en-
trusted with the preservation of heritage
structures in the national capital.
UNDER SCRUTINY
Sources within the CVC have told India
Legal that the Chief Vigilance Officer
of the NDMC has now taken up the
T
A Shut and
Open Case
Thesealingandde-sealingoftwo
Lutyens’Delhishopshassparkedoffa
controversywithacomplaintreaching
theCVC.Areallegationsofcorruptionin
highplacestrue?
By Sujit Bhar
HERITAGE AT THE CROSSROADS
Attempts are underway to convert Gole
Market in Lutyens’ Delhi into a museum, and
shops have been relocated
Photos: Bhavana Gaur

28 August 7, 2017
task of looking into the complaint and
though “it will take time for all files to
be scrutinised”, the process seems to be
underway. The procedure laid down is
that the chief vigilance officer of the
organisation concerned makes his/her
own report which is then forwarded to
the CVC.
The controversy started as an NDMC
lease expiry and rental rules violation by
the two shops. Status quo would have
been maintained had the licences of the
shops been renewed like 25-odd other
shops in the complex. The lease licences
of shop Nos. 36 and 37 had expired in
2012 and 2013, respectively.
ional spokesperson of the BJP. Her
intervention failed to provide any relief.
Rules state that in a case of a lease
lapsing, there remains little leeway for
readjustment. The property must under-
go fresh bidding (possibly an open auc-
tion) and the highest bidder would be
awarded the licence. However, this did
not happen because the auction process
could not be held. The shops were
sealed because they violated the direc-
tive of the monitoring committee set up
under Bhure Lal by the Supreme Court.
The shops in question are not in the
main Gole Market building on Lady
Hardinge Road, but in the phalange
across the traffic roundabout. While all
shops from the main heritage building
have been shifted—the main building
will possibly be converted into a muse-
um—this phalange still has shops with
very old rental deeds that have mostly
been renewed.
The two shops carried out the inno-
cuous business of selling poultry, fish
and meat products. There are other
shops in the area dealing in similar pro-
ducts, but they are off the Gole Market
complex.
SEALING AND DE-SEALING
The reasons why the shops were sealed
were as follows:
Subletting: The owners had sublet
their premises to an eatery chain SAN-
DOZ, with Gurmeet Singh, MD of the
eatery chain as the illegal lessee.
Encroachment
However, when the owners of the
shops—Arvinder Kaur Bedi and her son
Harmanjeet Singh Bedi—applied for
renewal, it was found that they had
committed several violations and their
applications were turned down. The
owners even approached Meenakshi
Lekhi, MP from New Delhi and a nat-
PAYING A PRICE
The shops in question in the phalange
across the Gole Market, with their
shutters down
Thehurrytocondonetheoffenders
NDMC file notations on
the two shops that show
the process followed in the
illegal de-sealing. The
contents of these documents
are also mentioned in the
main story
VoiceswithintheNDMCspeakof
severallawsandrulesbeingvio-
latedinthede-sealingofthe
shopsaftertheCorporationhad
sealedthemonseveralcounts.

Defacement: Not only were the two
shops made into one by breaking down
the separating wall, even the mezzanine
was being used with a staircase. All
these were illegal constructions.
These are gross violations of all laws
associated with a heritage structure.
However, a little later, the shops were
suddenly de-sealed. Not only was it
against the decision of the NDMC itself,
it was against the law of the land and a
Supreme Court directive against defac-
ing and misusing heritage property.
(See SC order in Aggarwal & Modi
Enterprises case).
Here are some interesting notations
from a copy of the NDMC file related
to the case of the two shops accessed by
India Legal which reveal how legal ad-
vice was ignored to allow the de-sealing:
The law department of the NDMC
after a thorough study had come to the
conclusion that the shops not be de-
sealed. The office of TK Sanyal advisor
(law and revenue) made the following
noting (page 138/N): “Given that the
concerned departments of NDMC have
found a large number of violations of
the license deed by the occupants of the
two shops and the Law department has
advised the initiation of action against
the unauthorized occupants under the
On September 1, 2015 YVVJ Raja-
sekhar, director (estates) put down his
own views (Page 139): “...I am not in ad-
item with Advisor L&R (law and rev-
enue). If we go by the advice of Advisor
(L&R), NDMC will end up with sealing
half of the markets in all the 40 markets
of NDMC... If we go by the advice of
Advisor (L&R)... there will be adminis-
trative chaos and it is legally not practi-
cable to shut down and seal 60% of the
market.”
Rajasekhar went on to say, in the
same note: “Now the limited point is
whether the violations mentioned in
para 2 at P-135/N are condonable or
PP Act, 1971, it would NOT be advisable
to de-seal the premises. In fact, NDMC
should consider taking action in similar
other cases of license deed violations.”
“On the issue of policy of renewal of
license deeds, NDMC will have to rev-
iew the extant policy in the light of the
judgment of Hon’ble Supreme Court
in Aggarwal & Modi Enterprises (P) Ltd
vs NDMC [(2007) 8 Supreme Court
Cases 75].”
Sanyal’ s conclusions were referred to
in a handwritten note to the secretary
and to the director of estates. But the
latter did not go along with the observa-
tions made by the law advisor.
BUSINESS AS USUAL
Licences of several shops in
Gole market area, like this one
next to the controversial shops,
have been renewed

context, since the violations are condon-
able as stated by CA Department... we
may de-seal the premises subject to the
following conditions...” (four conditions
were listed). The accusation is: How
could Rajasekhar say this, despite res-
ponsible departments of the NDMC
being against it?
The complainants have shown these
major irregularities while pointing accu-
sing fingers at top officials. The CVC
seems to have already moved in the
matter, though SC Sinha, Director CVC,
told India Legal: “It is our policy at CVC
not to reveal any action of the organisa-
tion to any third party. I cannot remem-
ber off hand which file or case this refers
to, and if we have acknowledged receipt
of any complaint, due process of law will
be followed.”
A shopkeeper adjacent to the shops
in question told India Legal: “We all
had our leases renewed. I have no idea
why they (Bedis) could not. I guess there
must have been some irregularities.”
However, the fact that the restaurant
was running “even a year back” was con-
firmed. Also confirmed was the fact
that the shops were “quite suddenly”
de-sealed.
The shops are shut now, but the issue
remains hanging fire.
30 August 7, 2017
written note by the officer on September
15 was clear: “We may not be able to
permit condonation of the violations of
building bye laws as a stand-alone case.”
Which, in simple words, means NO.
On September 16, 2015, Rajasekhar
sent an official note, saying, among
other things: “...However, in the present
subject to any composition fee that may
be applicable.” The note also mentions
the SC Aggarwal & Modi Enterprises SC
order, though that order is specific abo-
ut property being “sold, leased, or trans-
ferred in fair competition”.
CONDONABLE VIOLATIONS?
This note went back to the law depart-
ment, where law officer Dharam Pal
noted on September 14, 2015: “The sta-
tus of the property as on today, where
the property is lying sealed, licence of
the property in question has already
been expired (sic). The licencee has
committed various violations of the
license deed by amalgamating two shops
into one and changing of permissible
trade and also sublet the shops in ques-
tion. Under these circumstances there
is no scope of retreatment from earlier
legal stand taken by Law Department.
However, there is no bar to de-seal if
the violations are condonable while tak-
ing an administrative decision in the
interest of the NDMC. However, any
renewal will be under 141 of the NDMC
Act, 1994.”
The file went back to the director
(estates), Rajasekhar. He made this not-
ing by hand: “Kindly clarify whether
the... Bldg and other violations can be
condoned after charging necessary com-
position/compoundable fee.”
The file then moved to the civil
architecture department and the hand-
Section 141(2) of the NDMC Act, 1994
reads as follows:
“(2) The consideration for which any
immovable property may be sold,
TheSupreme
CourtRuling
The following is the relevant sec-
tion of the Supreme Court order in
the Aggarwal & Modi Enterprises
... vs New Delhi Municipal Council
of 31 August, 2007 case
leased or otherwise transferred shall not
be less than the value at which such
immovable property could be sold, lea-
sed or otherwise transferred in normal
and fair competition.
“22. The mandate of Section 141(2) is
that any immovable property belonging
to NDMC is to be sold, leased, licensed
or transferred on consideration which is
not to be less than the value at which
such immovable property could be sold,
leased, or transferred in fair competition.
The crucial expression is “normal and
fair competition". In other words, NDMC
is obligated to adopt the procedure by
which it can get maximum possible
return/consideration for such immovable
property. The methodology which can be
adopted for receiving maximum consid-
eration in a normal and fair competition
would be the public auction which is
expected to be fair and transparent.
Public auction not only ensures fair price
and maximum return it also militates
against any allegation of favouritism on
the part of the Government authorities
while giving grant for disposing of public
property. The courts have accepted pub-
lic auction as a transparent mean of dis-
posal of public property.”
Theownersevenapproached
MeenakshiLekhi,MPfromNew
Delhiandanationalspokesper-
sonoftheBJP.Herintervention
failedtoprovideanyrelief.

—Compiled by IL Team
The government is planning to set up
a new agency—the National Finan-
cial Reporting Authority (NFRA)—to
regulate the Institute of Chartered
Accountants of India (ICAI). The move
comes in the wake of Prime Minister
Narendra Modi publicly criticising
ICAI’s indiscipline at a CA Day event.
He observed that of 1,400 pending
cases, only 25 auditors have faced action
in over a decade.
Agency to regulate CAs
Former president Pranab Mukherjee
has warned the government against
using the ordinance route to bring in
laws. In his farewell speech, he said it
must be used only under compelling cir-
cumstances and that there should be no
recourse to ordinances in monetary mat-
ters. The Modi government has enacted
30 ordinances since it took office.
Mukherjee, himself, had given his
assent to the government’s demonetisa-
tion decision.
Pranab frowns on
ordinance route
The defence ministry has agreed to
share detailed file notings with
regard to the Bofors pay-off case. The
public accounts committee had objected
to its recommendation that certain paras
in the 24-year-old CAG report be
dropped as relevant files are no longer
available. The issue was raised in a PAC
subcommittee meeting wherein a mem-
ber noted that the defence secretary had
agreed to share all the relevant files with
the MOD.
Defence secy to share
Bofors notings
Twitter: @indialegalmedia/ Website: www.indialegallive.com
Briefs
Poland’s president has signed into
law one of the three bills that
organises the judiciary in a way that
critics say limits its independence.
President Andrzej Duda’s office
announced the signing of the law
which allows the justice minister to
name the heads of all lower courts.
Critics say it is the shortest way to cor-
ruption. Duda’s decision followed days
of demonstrations across the country,
in which hundreds of thousands of
Poles took to the streets in Warsaw, as
well as other towns and cities, and held
vigils in front of courthouses.
Under banners with slogans such as
“Free courts” and “Freedom, equality,
democracy”, demonstrators pleaded
with Duda—himself a lawyer—to reject
all three laws, claiming they marked a
shift towards authoritarian rule.
The proposals had set Poland on a
collision course with the European
Commission, which had threatened to
stop Poland’s voting rights if it intro-
duced them.
Employees of the Turkish newspa-
per Cumhuriyet are being tried on
charges including the alleged support
of “terrorist organisations”.
The defendants could get between
seven-and-a-half and 43 years in
prison. What exactly they are charged
with, however, remains unclear,
reports DW. The group includes some
of the best known names in Turkish
media, such as the paper's chief editor
Murat Sabuncu, cartoonist Musa Kart
and investigative reporter, Ahmet Sik.
According to the prosecutors, the 19
reporters are on trial for “aiding an
armed terrorist group without being
members of it”.
California Governor Jerry Brown
signed into law a package of bills
intended to use market forces to cut
greenhouse gas emissions, extending
by a decade the state’s plan to combat
climate change. The legislation puts
California at the forefront of plans (by
mostly Democratic governors) to
reduce carbon emissions and adhere to
the goals of the Paris climate change
accord after Republican President
Donald Trump withdrew the United
States from the pact. “California is
leading the world in dealing with a
principal existential threat that
humanity faces,” Brown said at the
signing ceremony in San Francisco.
California governor
signs climate policy law
Turkish scribes face “terrorism” charges
Polish
prez signs
controversial
judiciary law

32 August 7, 2017
the previous attempts to secure justice
for the community—whether it was the
Supreme Court’s judgment in the
National Legal Services Authority
(NALSA) case in 2014, or the Private
Member’s Bill, introduced by DMK MP
Tiruchi Siva, which is still pending for
consideration, along with the govern-
ment’s bill in parliament.
UNSCIENTIFIC DEFINITION
The Bill defines a transgender person as
neither wholly female nor wholly male,
or a combination of female or male, or
neither female nor male. The report
rightly dismisses this definition as
unscientific and primitive, as it is based
on the underlying assumption of biolog-
ical determinism, that is, all persons are
born with innate and immutable biolog-
ical attributes, namely, chromosomes,
hormone prevalence and internal and
HE process of pre-legisla-
tive consultation with
stakeholders in civil society
helps to correct serious
injustices inherent in a
badly drafted bill before it
becomes law. The Transgender Persons
(Protection of Rights) Bill, 2016 is one
such legislation which was greeted with
universal criticism for its omissions and
commissions when it was introduced by
the government in the Lok Sabha.
Referring the Bill to a standing com-
mittee of parliament was the only option
the government had, given the intensity
A Rainbow in the Sky
AreportbyaStandingCommitteehasmadefar-reaching
recommendationsonthiscontroversialBillandhastakena
sensitivestandtosecurejusticeforthiscommunity
By Venkatasubramanian
T
of criticism to various provisions in it.
The Standing Committee on Social
Justice and Empowerment, which con-
sidered the Bill, and listened to various
stakeholders, has now submitted its
report to the Lok Sabha. It has made
key recommendations so as to make it
acceptable to the transgender communi-
ty. These recommendations won unani-
mous approval of the Committee which
was chaired by BJP MP Ramesh Bais
and included 18 Lok Sabha and 10
Rajya Sabha members.
The Bill received universal condem-
nation mainly because it did not reflect
Photos: Kh Manglembi Devi
Acts & Bills/ Transgender Persons (Protection of Rights) Bill, 2016

external sexual anatomy.
The report, therefore, recommends
that a transgender person be defined as
a person whose gender does not match
with the gender assigned to that person
at birth and includes trans-men and
trans-women (whether or not they have
undergone sex reassignment surgery,
hormone therapy or laser therapy, are
gender-queers or have socio-cultural
identities such as kinnars, hijras, arava-
nis, jogtas, etc.)
The report wants the government to
recognise that transgender persons can
face discrimination not just from private
individuals and establishments, but also
from the State. It recommends a griev-
ance redressal mechanism by which dis-
criminatory acts committed either by
the government or by a private estab-
lishment can be made liable. The report
mentions that the proposed National
Council for Transgender Persons does
not have the teeth to seek punishment
of persons guilty of such discrimination.
A significant criticism of the Bill has
been that it does not recognise the right
of transgenders to decide their self-iden-
tified gender. The Bill, insofar as it
requires a screening process for this
purpose, has been rightly characterised
as running counter to progressive inter-
national jurisprudence. As gender iden-
tity is internal and personally defined, it
is not visible to others. The report
understands gender identity as a per-
son’s internal, deeply felt sense of being
either man or woman, or something
other or in-between. The report appre-
hends that the presence of medical pro-
fessionals on the screening panel, as
proposed by the Bill, increases the risk
that the gender identity of the applicant
will be based on some kind of assess-
ment of medical, biological or psycho-
logical eligibility. This would risk
pathologising trans-identities, the report
expressly cautions.
PLEA FOR QUOTA
The report has expressed its concern
over the Bill’s silence on granting reser-
vations to transgender persons under
the category of socially and educational-
ly backward classes of citizens, as rec-
ommended by the Supreme Court in the
NALSA judgment.
Another area of concern expressed
was the Bill’s failure to refer to impor-
tant civil rights like marriage and
divorce, adoption, etc., which are critical
to transgender persons’ lives and reality,
wherein many are engaged in marriage-
like relations, without any legal recogni-
tion from the State.
The report’s other recommendations
include separate HIV sero-surveillance
centres to be operated by central and
state governments for hijras/transgen-
ders as they face several sexual health
issues, provision of separate public toi-
lets for them, counselling services to
cope with trauma and violence, career
guidance and online placement support.
The report also recommends penal
action against abortions of intersex foe-
tuses and forced surgical assignment of
sex of intersex infants, separate frisking
zones for transgenders at public places
and appointment of transgender per-
sons to frisk others of their ilk.
As transgender persons remain at the
risk of criminalisation under Section
377 of the Indian Penal Code—an
obnoxious provision, which was unfor-
tunately declared constitutional by the
Supreme Court—the report makes a
subtle, but indirect suggestion that the
government considers its repeal.
Reports of Standing Committees of
parliament are not binding on the gov-
ernment. But this report, considering its
traction among the stakeholders and
members of civil society, is likely to
influence the government’s thinking
significantly.
Thereportrecommendsa
grievanceredressalmechanism
bywhichdiscriminatoryacts
committedagainsttransgenders
canbemadeliable.
U
S President Donald
Trump announced a
ban on transgender
people serving in the US
military in any capacity cit-
ing “tremendous medical
costs and disruption”
incurred by the military due
to them. It is unclear as to
what will happen to the
transgender personnel cur-
rently serving in the military.
This is contrary to the per-
ception he had created dur-
ing his election campaign
where he presented himself
as a friend of the transgen-
der community, although the
Republican party has many
members against the LGBT.
The announcement reverses
former president Barack
Obama’s policy of allowing
transgenders into the Army,
a year back. Ironically,
Trump’s move comes the
day the then Democratic
president, Harry Truman,
had racially integrated the
army, 69 years ago.
TrumpBacksOff

Ahousingprojectholdsouthopeforthecommunitythatfindsittoughtobreakprejudices
By Naveen Nair in Thiruvananthapuram
34 August 7, 2017
Roof over their Heads
HAT started off in Kerala
as a transgender policy in
2015 has begun to show
results unlike many other
policies of the govern-
ment that usually remain on paper.
Total acceptance for the transgender
community may take time, but the first
steps have been taken.
From beauty pageants, to plans for
an exclusive transgender school to gov-
ernment supported jobs on the Kochi
Metro, the times are changing. The lat-
est heart-warming story is a housing
project for the community.
Titled as “LIFE”, or better known as
“Livelihood Inclusion and Financial
Empowerment”, this new project of the
LDF government hopes to provide
dwellings to some 446 transgender per-
sons in the first stage. Although unwed
mothers and HIV positive persons have
also been included in the project, the
government hopes this would actually
bring change in the lives of the trans-
gender community.
“It is a matter of great pride as
Kerala will be the first state to bring in
such a revolutionary idea. This is only
the starting point as we hope to intro-
duce more such projects that will help
assimilate the transgender community
into society faster,’’ said KT Jaleel, min-
ister for local self government.
For the last one-and-a-half years, the
social justice department volunteers
have been conducting a door-to-door
survey to collect data on transgender
persons living across the state. This data
will form the basis for the allotment of
the houses. “The project is still in its
nascent stage. At the moment we have
spotted land in Thiruvananthapuram
but in Cochin we are still looking for it.
The purpose is to ensure that transgen-
der members in these cities get a safe
place to stay and not face harassment,’’
Anupama TV, director, social justice
department told India Legal.
Finding accommodation for a trans-
gender person is virtually impossible.
Ragaranjini is a transgender who works
at the ticket counter of the busy Eda-
pally Metro Station in Kochi. She and
22 others had joined the Metro in what
was believed to be a revolutionary move
in employing the community members.
But, she says, nine have quit in the last
one month since the Metro was launch-
ed by Prime Minister Narendra Modi as
they failed to get accommodation.
Explains Ragaranjini: “Nobody in
this city will give us a house to stay in. I
have been wandering along with my
partner for close to a month after which
through the Metro’s help, I have man-
aged to find a place for us. But the oth-
ers did not have the patience.” She goes
on to recount how she and a few of her
friends were chased by the local police
while they were at the bus station late at
night. “We were waiting to get a bus to
go home. But the police became suspi-
cious. That’s the mindset that people
still have,’’ she says.
As per the 2011 census, there are
some 3,902 members of the transgender
community in Kerala. Of them, a size-
able number live on the streets of major
cities—Thiruvananthapuram, Kochi and
Kozhikode. For them, the new project
holds out hope.
W
Frombeautypageants,toplans
foranexclusivetransgender
schooltogovernmentsupported
jobsontheKochiMetro,the
timesarechanging.
States/ Kerala/ Transgender Persons
ALL FOR SOCIAL JUSTICE
Kerala Assembly Speaker P Krishnan posing
for a selfie with transgenders
UNI

Medicine/ Doctors in Distress
T seems that the matter of overbur-
dened junior doctors in govern-
ment hospitals is finally gaining
traction with the Delhi High Court
asking the centre some probing
questions regarding staffing levels
and the doctor-patient ratio.
This ratio is a commonly used metric
to measure the number of doctors rela-
tive to the population in any given coun-
try. The number of “allopathic” doctors
per 1,000 people stands at a meagre
0.61 in India as compared to 2.554 in
the US and 2.806 in the UK. The actual
number of qualified MBBS doctors
working is likely to be even lower as
some of them may have retired and
there is no shortage of people who like
to call themselves doctors. Not just
Ayush practitioners, but registered med-
ical practitioners (RMPs) and even
quacks insist on using the tag of doctors.
And as creating doctors is a time-con-
suming and expensive undertaking, the
government is systematically encourag-
ing this behaviour. After all, it is system-
atically promoting Ayush professionals
as modern doctors and creating RMPs.
Though the Medical Council of India
is entrusted with the job of maintaining
an accurate medical register, the state of
its database is such that it doesn’t even
know whether the doctors on it are alive
or dead, let alone practising or not, and
if practising, in which part of the coun-
try and in what speciality.
WOEFULLY LACKING
Currently, we have approximately
63,835 medical seats in 426 MBBS
colleges. Even if all these students were
to work as doctors in India upon getting
qualified, it will take several decades to
reach the doctor-population ratios cur-
rently seen in developed countries. But
simply creating more doctors without a
comprehensive investment in the
healthcare infrastructure is not likely
Inordertoresolvethemanpowercrisisinthehealthcare
sector,thegovernmentwillneedtogreatlyinvestin
modernfacilitiessothatdoctorsandnursesareattracted
toworkinruralIndia
By Kamal Kumar Mahawar
I
HighCourttotheRescue
OVERWORKED AND
UNDERPAID
Most of the day-to-day
work in any public hospital
is carried out by junior
(resident) doctors and nurses
Anil Shakya

Medicine/ Doctors in Distress
to solve the problem. Doctors need clin-
ics, diagnostics, hospitals, nurses, para-
medical staff and a whole range of
modern equipment to deliver 21st-cen-
tury healthcare. For far too long, we in
India have only focussed on creating
doctors without a comprehensive plan
to address the issues facing our health-
care. The end result has been a totally
unplanned urban mushrooming of pri-
vate clinics and nursing homes compet-
ing with each other, often unethically,
for a small section of population which
can afford them. This has also created a
relative vacuum of facilities for the
urban poor and rural populations.
Yes, we need more doctors, but it is
also a fact that we are not able to
employ even the doctors that we create
in adequate facilities that are fit for the
purpose. It is worth examining here the
options available to doctors who pass
out of college today. They can either
work for the public sector for meagre
wages or start an independent practice
in the cut-throat and unprincipled pri-
vate world. Given the state of our public
sector, most prefer the latter even if the
journey is arduous in the beginning.
This is the reason why even institutes
such as AIIMS are now struggling to
recruit faculty.
There is another option, which many
graduates ultimately resort to and that
is to emigrate abroad. Western coun-
tries can employ more junior doctors
than their own systems can create,
whereas we are not able to offer post-
graduate training places to all our quali-
fied doctors. It is a sad reality that a
large number of our medical graduates
are left to fend for themselves when it
comes to obtaining post-qualification
training. No developed country allows a
fresh MBBS graduate to work independ-
ently, but in India, this is not only
allowed but encouraged.
DEVELOPED COUNTRIES
How are developed countries then able
to employ four times the doctors per
unit population? The answer is simple.
Those countries have modern healthcare
facilities for most of their population,
including those who live in remote loca-
tions. Building medical facilities across
the length and the breadth of the coun-
try for the urban poor and rural popula-
tions is not going to be easy. It will need
significant planning, support and vigi-
lance from the state, the involvement of
the insurance industry, contributions
from the charitable sector and newer,
more affordable models of care from the
private sector to cater to the lower mid-
dle classes. As far as the poor in the
society are concerned, they will continue
to rely on the public sector.
It is estimated that approximately 80
percent of Indian doctors work in urban
areas catering to approximately 28 per-
cent of the population. This leaves 20
percent of doctors for the rest of the
population. The situation is even more
alarming if you consider the almost
complete lack of specialisation among
rural doctors and that the nearest in-
patient facility in many areas can be sev-
eral kilometres away. In remote areas,
there is sometimes one doctor for tens
of thousands of people. It is not too dif-
ficult to understand how we have
reached this state.
Our governments have successively
failed to invest adequately in health.
Poor management, misplaced priorities
in the name of a number of short-sight-
ed schemes, and often, blatant corrup-
tion have meant that our public health-
care infrastructure is probably one of
the worst in the world. In a recent
report, India was ranked 154 out of 195
countries on healthcare index, even
below Sri Lanka and Bangladesh.
PRIVATE HEALTHCARE
In urban India, we at least have some
healthcare, which is, of course, largely
by the private sector. But private health-
care is funded out of patients’ pockets
and rural India simply does not have
deep pockets to enable the building of
hospitals and clinics by the private sec-
tor. And as the economic condition of
rural India is unlikely to improve dra-
matically in the near future, any attempt
to improve the healthcare of this section
ThoughtheMCIisentrustedwiththejobofmaintaininganaccurate
register,thestateofitsdatabaseissuchthatitdoesn’tevenknow
whetherthedoctorsonitarealiveordead.
UNI
36 August 7, 2017

India Legal 07 August 2017

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