Deadlocked Yet Again The turf war between the judiciary and the executive over appointment of judges reaches another cul-de-sac. There are no signs of a modified Memorandum of Procedure which the law ministry was expecting

1. InvitationPrice
`50
NDIA EGALL STORIES THAT COUNT
May8, 2017 ` 100
www.indialegallive.com
I
Lessons from Sukma
The turf war between the judiciary and the
executive over appointment of judges
reaches another cul-de-sac. There are
no signs of a modified Memorandum
of Procedure which the
law ministry was expecting
Deadlocked
Yet Again

4. 4 May 8, 2017
AST week our website www.indialegallive.com
ran a passionate piece by Col R Hariharan, a
soldier, intelligence advisor to the govern-
ment, and leading national security analyst,
emphasising that “nationalism is not a dirty
word.” He is pained when he sees so-called liberals
mocking the sacrifices of security forces battling
and dying to preserve the unity and integrity of
India or being made the scapegoats for bad policies
made by politicians.
In a similar vein, V Anantha Nageswaran, Visiting
Fellow, Vivekananda International Foundation, a re-
search institution to which Prime Minister Modi pays
close attention, wrote recently that Indian national-
ism “is not outmoded in the context of the rise of
China and Pakistan, the manner of their rise, their
systematic and persistent hostility to India combi-
ned with their use of the social media and other
pecuniary motivations.”
He was responding to Justice AP Shah’s MN Roy
Memorial Lecture. In a blistering speech, the former
Delhi High Court chief justice and chairman of the
Twentieth Law Commission had criticised incipient
intolerance and suppression of dissent in insidious
ways. Shah argued that nationalism “cannot be com-
pelled.” Nageswaran, while conceding the impor-
tance of someone of Shah’s stature to raise his
voice, countered:
“(But) Indians have to accept certain (that can
be defined) restrictions in their exercise of funda-
mental liberties. The state machinery will try to
take advantage of the situation to place res-
trictions on domestic political dissent.
But, courts, civil society and the media
should and would play the role of
‘checks and balance’.”
Fair enough. But what I find
anti-national is the use of national-
ism as a figleaf to justify hidden agen-
das of majoritarianism characterised by
the fanning of religious hatred. Who would
ever imagine that Julio Ribeiro would one
day, in a column for The Indian Express,
lament that he feels persecuted and insecure
in his own country.
Ribeiro is a Christian. But more than
that, he has been a frontline soldier who was twice
wounded in assassination attempts by separatist mili-
tants for leading from the front as Punjab’s police
chief, in New Delhi’s battle against armed separatists.
Ribeiro shed his blood for India in the same way as
the jawans Col Hariharan speaks for in Kashmir and
the Northeast.
Y
et, for those who would use nationalism as a
political cudgel against minorities in the sur-
charged atmosphere of India’s current political
scenario Ribeiro is expendable. It is gut-wrenching to
read him:
“Today, in my 86th year, I feel threatened, not
wanted, reduced to a stranger in my own country.
The same category of citizens who had put their trust
in me to rescue them from a force they could not
comprehend have now come out of the woodwork to
condemn me for practicing a religion that is different
from theirs. I am not an Indian anymore, at least in
the eyes of the proponents of the Hindu Rashtra.
“What should I do? What can I do to restore my
confidence? I was born in this country. So were my
ancestors, some 5,000 or more years ago. If my DNA
is tested, it will not differ markedly from Bhagwat’s. It
will certainly be the same as the country’s defence
minister’s, as our ancestors arrived in Goa with the
sage Parshuram at the same time. Perhaps we share a
common ancestor somewhere down the line. It is an
accident of history that my forefathers converted and
his did not. I do not and never shall know the circum-
stances that made it so.”
Ribeiro’s last words in that piece always come
back to haunt me: “What does reassure me in these
twilight years, though, is that there are those of the
predominant Hindu faith who still remember my
small contribution to the welfare of the country of
our birth.”
That’s what nationalism is all about. As Justice
Shah said, it cannot be compelled. It has to be innate,
it has to arise from compassion, it has to arise from
love and tolerance. Only then can it be beautiful.
L
NATIONALISM CAN BE BEAUTIFUL
Inderjit Badhwar
Letter from the Editor
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

6. Contents
The Longest Standoff
The executive and judiciary are hopelessly deadlocked over the appointment of judges to
the higher judiciary with a modified Memorandum of Procedure nowhere in sight
14
LEAD
VOLUME. X ISSUE. 25
MAY8,2017
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6 May 8, 2017
A Workable Solution
In order to get things moving, the Court has told the government that the Lokpal can be
appointed even if there is no Leader of the Opposition in the Lok Sabha
18
SUPREMECOURT
Symbolic Gesture? 20
Though banning red beacons on vehicles from May 1 will not end the culture of privilege
among VIPs, it could check their misuse for committing crimes

7. REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................12
International Briefs..........46
Media Watch ..................48
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
| INDIA LEGAL | May 8, 2017 7
Price of Dissent
Democratic protesters in Kerala are under attack with the LDF
government booking them under the Unlawful Activities Act
34
Judge Me Not
Anuja Dhir has become the first non-white judge to sit at London’s Central
Criminal Court and it wasn’t an easy journey
38
PROFILE
Saving JNU
UGC’s decision to drastically cut the
number of MPhil and PhD seats in
this university will deplete its
research base and affect education
42
EDUCATION
Victory for Senkumar
The court asked the Kerala government to reinstate its DGP who
had waged a year-long battle. The order has wider implications
22
Double Whammy
While shifting to a Jan-Dec fiscal cycle may require legislation, it
shouldn’t be hasty and must not clash with the GST rollout
26
ECONOMY
Caught in the Crossfire
In the decades-long conflict between Maoists and security forces,
the Adivasis have been the worst sufferers
29
FOCUS
Dry Days Ahead
With elections in MP and Chhattisgarh next year, their CMs are
gearing up to impose prohibition despite an indifferent public
32
STATES
Frozen Ties
The court battle between Hindustan Unilever and Amul has more to do with mar-
ket domination than how ice creams and frozen desserts are made
36
CORPORATE
The Other Side
of Gandhi
Mr and Mrs Jinnah by Sheela Reddy
examines the Pakistan leader’s
traumatic personal life and is also
a revisionist look at the Mahatma
44
BOOKREVIEW
Us vs Them
The coalition of newsrooms behind the American project titled Documenting Hate
has recorded a wide variety of violence occurring in all corners of the US
40
GLOBALTRENDS

8. While she is a religious mind and
she has forgiven her tormentors,
we are common people and we
have been pained so much that we
want to sue Digvijaya Singh and
those news channels that assassi-
nated her character for vested
interests. I want to teach them a
life lesson so that they cannot do
this to anyone else in future.
—Upama Singh, Pragya Singh’s sis-
ter, on her being granted bail in the
Malegaon blast case, in Mail Today
8 May 8, 2017
“
RINGSIDE
It is an act of desperation. We have
accepted it as a challenge. We will review
the strategy and if necessary, we will
revisit it.
—Home Minister Rajnath Singh, reacting to
the Maoist attack on CRPF convoy in Sukma,
in Hindustan Times
There isn’t a single crime or
misbehaviour even in
Kashmir that hasn’t first
been exposed by an Indian
individual, by an Indian
person or authority, by an
Indian media person or an
Indian NGO. Indians are
the first to bring these up.
—Congress MP Shashi
Tharoor, in an exclusive
interview on Conflict Zone,
Deutsche Welle TV
Jahan par Vajpayee ji chhor
gaye the, wahin se issko
aage le jaana padega nahin
toh J&K ki haalat sudharne
ka koi chance nahin hai
(We should take the dia-
logue forward from the
point where Atal Bihari
Vajpayee left it. Otherwise
there is no possibility of any
improvement).
—J&K Chief Minister
Mehbooba Mufti, to ANI
We need a debate on why Hindutva is becoming
like the IS. The Hindu right wing is talking in
the same criminal language as IS. As a Hindu, I
resent what Hindutva is doing to Hinduism.
They are distorting and destroying it.
—Author Nayantara Sahgal, speaking to IANS at
the Dehradun Literature Festival
Hi, I am Nawazuddin Siddiqui. I
had got my DNA test done and
when the reports came in, I found
that...I am 16.66 percent Hindu,
16.66 percent Muslim, 16.66 per-
cent Sikh, 16.66 percent Christian,
16.66 Buddhist, 16.66 of all the
religions in the world, but when I
discovered my soul I found that I
am a 100 percent artist.
—Actor Nawazuddin Siddiqui, in a
video that he posted on Twitter
Triple talaq in fact works in the favour of women
ultimately. It results in quick separation and
women are spared the prolonged divorce
proceedings. When people raise the issue and
complain about it, we find it amusing.
—Chairman of Islamic Academy and leader of
Islamic organisation Jamat-e-Islami Hind
Professor Hasan Raza, in The Times of India

9. | INDIA LEGAL | May 8, 2017 9
The defection of Congress
leaders to BJP ranks in
Karnataka, Uttar Pradesh, Goa
and Manipur, and now prior to
the Delhi municipal polls, has
given the saffron party’s dirty
tricks department a bright
idea. It is singling out
Congressmen who are individ-
ually popular but undervalued
in the party and floating
rumours on social media that
they are about to join the BJP.
Two prime targets are Shashi
Tharoor and Kamal Nath.
Tharoor is popular in media
and intellectual circles and has
a global profile, thanks to his
lectures, books and long stint
at the UN. In the party, howev-
er, he is not given his due for
fear he will overshadow RG.
Kamal Nath is a major force in
his district of Chindwara in MP
and has been an effective
strategist and fund-raiser for
the party. He too is forced to
play second fiddle to other
leaders in the party.
DIRTY TRICKS
PLAYBOOK
Some like it flashy. Others like it
staid and conservative. When
he was defence minister,
Manohar Parrikar wanted the
ministry’s portal to look colour-
ful. He also wanted it full of
data and snippets. In short, he
wanted a website which
engaged visitors. But the new
minister, Arun Jaitley, will have
none of that. He wants a con-
ventional portal which is not
generous with the information it
dishes out. Apparently, he does
not wish it to compromise
national security. As a result,
the old designs have been
scrapped and a new “old look”
is being planned. For bureau-
crats, familiar with the sudden
change of priorities when one
minister replaces the other, all
this is part of the game.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Puducherry is some 2,300 kms from
New Delhi. But that does not prevent
Governor Kiran Bedi from keeping
close tabs on what happens in the
national capital. She closely moni-
tored the campaigning for the recent-
ly-concluded municipal corporation
polls and offered tips on social media
on how to make Delhi a better place.
Not just that, she reportedly contacted
friends in the media to give her
updates on Kejriwal’s campaign and
prospects. Bedi was the BJP’s chief
ministerial candidate in the Delhi
assembly elections which Kejriwal
swept. She was also once closely
associated with the Aam Aadmi Party,
and later became Kejriwal’s bitterest
critic. The BJP trouncing AAP in the
municipal elections must surely have
been greeted with three cheers at the
Raj Bhawan in Puducherry.
An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
NEW OLD WEB
Invitations from
embassies/High
Commissions in Delhi
are coveted because
of the chance to sam-
ple exotic dishes.
Canada begs to be
different. A recent
dinner in honour of
the visiting defence
minister saw a lavish
spread of Indian
food, including mut-
ton biryani. The man
called in to do the
cooking honours was
a chef from Qutub
Hotel, the much-
neglected govern-
ment-run four-star
hotel. It is possible
that the choice of cui-
sine may have had
something to do with
the chief guest, Harjit
Sajjan, the Sikh mem-
ber of Justin
Trudeau's cabinet.
DINNER
DIPLOMACY
If you haven’t been watching
videos on YouTube featuring
National Security Advisor Ajit
Doval, then you have been
missing something. Statistics
made available by friends of
the super sleuth say that one
popular news video, in which
he figures, has a mindbog-
gling 10,04,351 views.
Another had 9,47,121 views.
Rather impressive, although
the most popular videos
were shot before he became
NSA when he was on the
lecture tour circuit and spoke
candidly about tackling
Pakistan and China. The tac-
tics he revealed then were
unconventional and not
something he could ever
say, wearing his NSA cap.
YOUTUBE STAR
LONG DISTANCE
INTEREST

10. The centre can’t ignore any longer
the need to have a law that deals
with custodial torture as it is in
national interest, the Supreme Court
ruled. It insisted that the centre ratify
the UN convention against torture
signed in 1997 and directed the cen-
tre to file a response within 10 days.
The Court observed that the absence
of any anti-torture law was a major
bottleneck while seeking extradition
of accused persons from other
nations. India’s reputation worldwide
was also at stake, the Court said.
The centre assured the court that
the matter was being looked into by
the Law Commission. It said that the
centre’s point of view would be pre-
sented before the Court after India
attends a conference in Geneva on
the subject in early May.
The centre’s response came
when the court wanted to know
India’s stand at the conference.
The Court was responding to a
PIL from former law minster and
Congressman Ashwini Kumar, who
prayed that the centre be asked to
frame a law in line with the princi-
ples of the convention. Earlier too,
the Court had asked the centre to
respond on the issue. The amicus
curiae in the case, Colin Gonsalves
also favoured the stand taken by
Kumar. The home ministry records
submitted in the court also showed
a spike in custodial deaths of prison-
ers. India is yet to ratify the conven-
tion, along with eight other nations.
Need a law for
custodial torture
Given that the National Green Tribunal
is already looking into the Yamuna
pollution matter, the Supreme Court ruled
that the green panel will now handle the
issue completely, including monitoring all
projects. The top court had been moni-
toring suo motu all efforts by the centre,
Delhi, Haryana and UP to clean up the
river since 1994.
The top court observed that there
can’t be two parallel courts dealing with
the same issue. Moreover, after going
through the orders of the tribunal, the
Court felt it was doing a fine job. It,
however, asked Solicitor General Ranjit
Kumar (amicus curiae for the case in the
apex court) to approach the court in
case the NGT faces difficulties in dealing
with any constitutional or legal angle on
the matter.
The Court expressed its displeasure
that pollution levels in the river still
remained high after spending `4,500
crore. Kumar laid the blame on the
increased levels of untreated sewage
released into the river.
The Supreme Court took serious objec-
tion to a man from Srinagar still being
kept in jail despite being held “not-guilty”
in 10 out of the 11 criminal cases sla-
pped against him by the Delhi and UP
police. It questioned his 16-year stay in
jail when others arrested along with him
had been granted bail in all cases.
The man from Srinagar, Gulzar Ahmad
Wani, a former AMU research scholar,
was apprehended in 2001 by Delhi Police
for terror activities in UP. As of now, he is
an accused only in the Sabarmati Exp-
ress blast of 2000 in Uttar Pradesh.
However, the hearing in the case is yet to
be completed. Wani is currently languish-
ing in the Lucknow district jail.
Wani had appealed in the apex court
against his prolonged incarceration. His
request for bail in the Allahabad High
Court had been struck down. He pleaded
that all charges slapped by the police
were baseless and he was being project-
ed a “terrorist” as he was a Kashmiri.
While dismissing the plea of the UP
police that Wani be kept in jail, the top
court was furious that on the contrary no
concrete effort had been made to fast
track the Sabarmati trial. It observed that
Wani should not bear the brunt for the
laxity of the trial court.
The Court had said in September
2016 that the trial must come to an end
within six months. Wani must be granted
bail on November 1, 2017 if the prosecu-
tion does not complete examination of
witnesses by October 31, 2017, the
Court ruled. It, however, asked the con-
cerned trial court to set the terms and
conditions for the bail.
Courts
10 May 8, 2017
Accused
can’t suffer
due to
delay
NGT to decide on
Yamuna pollution

11. It is not possible for the Court to ask the cen-
tre to enforce fundamental duties of citizens,
the Supreme Court ruled and dismissed a peti-
tion in this regard. It also took a dig at the peti-
tioner— spokesperson of the Delhi chapter of
the BJP—that he could himself achieve the
objective as the BJP was the ruling party at the
centre. The petition was filed by Ashwini Kumar
Upadhyay, who wanted the JS Verma Commi-
ttee recommendations (1999) on fundamental
duties implemented and had sought the Court’s
directions on this.
Noordersonfundamental
dutiesofcitizens
Pleading that the Official Secrets Act (OSA) is
being invoked to throttle freedom and rights
enjoyed by journos, Poonam Agrawal, a scribe
herself, approached the Apex Court for redressal.
The Nasik police had slapped various charges on
her under OSA for doing a sting operation to
expose the alleged wrongs done by Army offi-
cers under the Sahayak (buddy) system.
The Court, while observing that the issue
needs to be delved into, sought a response from
the centre and the Army.
Pleading that OSA, framed in 1923, is too
draconian in today’s time and age, Agrawal sub-
mitted that rules should be framed to prevent its
abuse. She also prayed that the court should ini-
tiate a probe into the Sahayak system which is
exploitative.
All income earned from Formula
One racing championships will
henceforth be taxed and the amount
will be decided by an IT assessing
officer, the Supreme Court ruled. The
Court based its verdict on the
ground that holding such races was
very much a business activity and
fell in the income tax ambit. It also
took into account that there was an
existing “permanent establishment”
to hold such races in India.
A “permanent establishment” is a
fixed place where business is con-
ducted and income generated, lead-
ing to tax liability in the jurisdiction
where it is located. The Court ruled
that the Buddh International Circuit
(BIC), owned by the Jaypee Group,
was a “permanent establishment”.
The races were discontinued in
2013 due to tax issues, as Formula
One World Championship, the body
that arranges Formula One racing
events, did not want to pay taxes.
The apex court supported the
Delhi High Court ruling which slap-
ped taxes on the three Formula One
races (three editions of the Grans
Prix) held between 2011 and 2013
by the Jaypee group.
The apex court wanted to know
what could be done to rehabilitate
people who had been cured of their
mental illness at hospitals, dis-
charged, but left to fend for them-
selves by their families. While show-
ing utmost concern over the issue,
the Court wanted to know from the
centre if “half-way homes” could be
set up for such people so that they
can be rehabili-
tated. The matter
came before the
Court through a
PIL which stated
that 300 poor
people were
already languish-
ing in mental
hospitals in UP
despite having
been cured.
The Court
was not happy with the centre’s
response that the “half-way homes”
issue was being discussed with the
concerned states as the matter was
under their jurisdiction. It expressed
anxiety as to whether laws enacted
for disabilities and the mentally-ill
were being implemented properly. It
wanted the centre to review the
existing laws and systems on men-
tally-ill people and “tell what kind of
directions are required for interim
rehabilitation”.
Need to rehabilitate
mentally-ill persons
| INDIA LEGAL | May 8, 2017 11
— Compiled by Prabir Biswas
PleaagainstabuseofOSA
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Formula One
income taxable

12. Briefs
Acase has been filed by the CBI
against its former director,
Ranjit Sinha, under the Prevention
of Corruption Act, for influencing
the investigation in the coal scam.
Sinha is the second director of the
CBI to be booked by the same
agency, after his predecessor, AP
Singh. If found guilty, he would
face a maximum imprisonment of
seven years. An FIR against Sinha
has been lodged under the
Prevention of Corruption Act. The
case against Sinha stems from a
PIL filed in the Supreme Court by
lawyer Prashant Bhushan on the
basis of the entries in the visitors’
diary maintained at his residence,
which showed that he had met
some of the influential accused in
the “coalgate” scam. The agency
will examine whether FIRs or
chargesheets filed by the CBI in
any of the 54 coal scam cases
were influenced in favour of
the accused.
The Centre has suggest-
ed in a report to the
Supreme Court that all
cows, along with their
calves, oxen and bulls, be
tagged with a universal
identification number to
check their smuggling
across the border. “Each
animal will be tagged with
a UIN with proper records
of identification details—
age, breed, sex, lactation,
height, body colour, horn
type, tail switch and spe-
cial marks,” the report said.
It said “mass-tagging” of
cattle was already prac-
tised for insurance pur-
pose. The Centre also told
the Supreme Court that a
committee headed by joint
secretary (home) was
formed to look into the
issue of cattle smuggling.
Now, UID for cattle
After refusing to issue a
red-corner notice against
Lalit Modi, the Interpol has
denied one against arms dealer
Sanjay Bhandari. The Delhi
police, through the CBI, had
moved for a RCN against
Bhandari, currently in London’s
Mayfair area. The Interpol, in
its statement, said that the
case registered under sections
of the Official Secrets Act
appeared to be of “political
nature” and did not fulfil the
necessary criteria for issuance
of a red notice. Bhandari is
being probed in connection
with the recovery of classified
defence ministry
documents from his house in
2016, including papers of the
Policy Planning and Force
Development branch of the
ministry of defence.
Interpol rejects
RCN against
Sanjay Bhandari Feminist film Lipstick
Under My Burkha has
been cleared for release in
India after the Film
Certification Appellate
Tribunal (FCAT) decided it
can be screened with an “A”
certificate. FCAT alleged
that the Central Board of
Film Certification (CBFC)
was “misdirected” in deny-
ing certification to the film
on the ground that the film
is women-oriented. It stat-
ed that the film also does
not portray any communi-
ty in bad light. Starring
Konkona Sen Sharma and
Ratna Pathak Shah,
Lipstick has been screened
in the Miami International
Film Festival.
Lipstick cleared for release
12 May 8, 2017
CaseagainstformerCBIchief
Hotels get service
charge guidelines
The government has
approved the guidelines
enabling customer’s discretion
whether to pay the service
charge or not. “Hotels/restau-
rants should not decide how
much service charge is to be
paid by the customer,” tweet-
ed Food and Consumer Affairs
Minister Ram Vilas Paswan.
He added that guidelines are
sent to states so that neces-
sary actions are taken at their
end. According to the new
guidelines, the service charge
column would be left blank
before the final payment is
made. However, service tax
will remain compulsory. Even if
it is paid, the hotel should
make public how much money
actually reaches the staff.
Restaurant associations have
mentioned that
guidelines are
not laws.

13. | INDIA LEGAL | May 8, 2017 13
The Delhi Police Crime Branch has
arrested AIADMK (Amma) deputy
general secretary TTV Dhinakaran in con-
nection with an alleged attempt to bribe
Election Commission officials to secure
the “two leaves” symbol for his faction. He
was said to have made the attempt
through middleman Sukesh
Chandrashekhar, who was arrested last
week. Along with Dhinakaran, his
close friend Mallikarjuna was taken
into custody.
Post his arrest, calls to sack him from
the party have got a further boost. The
faction led by Sasikala and Dhinakaran
has decided that both will be evicted from
their positions to facilitate a merger with
the O Panneerselvam faction.
Finally, Dhinakaran arrested
Chetan Bhagat accused of
plagiarism
The Forest Advisory Committee
(FAC)—which takes a call on diver-
sion of forests for any major develop-
ment project—has given an in-principle
nod to the ambitious `18,000 crore
Ken-Betwa River linking project with-
out insisting on reducing the height of
the proposed dam. It has agreed with
the water resources ministry’s argument
that a decrease of just five metres of the
dam’s height would make the project
unfeasible.
The decision of the FAC is a climb-
down from its earlier position—wherein
it wanted that the height of the
Dhaudam dam be re-examined in the
interest of the Panna tiger reserve,
whose 4,141 hectares would face sub-
mergence due to the project. It had then
wanted the height of the proposed dam
be reduced by at least five metres to
avoid the submergence.
Ken-Betwa project to get nod
Amid reports that several manufacturers, includ-
ing Abbott and Medtronic, are seeking to with-
draw premium, high-priced stents from the Indian
market on account of the price cap imposed by the
National Pharmaceutical Pricing Authority (NPPA),
the government has invoked special powers under
the law to prohibit all stent makers from withdraw-
ing their products from the market for the next
six months.
The companies have also been directed to submit
a weekly report on coronary stents produced and dis-
tributed, along with the production plan for the next
week to the NPPA and the Drugs Controller General
of India (DCGI). The move was made after the
department of pharmaceuticals (DoP) came across
reports regarding shortage of coronary stents.
The Competition Commission of
India (CCI) has ordered a detailed
investigation against Swiss drugmaker
Roche for allegedly blocking the entry of
low-cost alternatives to its breast cancer
drug Trastuzumab in order to
maintain a market monopoly
over the medicine.
The probe has been
ordered in response to a com-
plaint filed by Bengaluru-
based Biocon and US firm
Mylan, who together sell
biosimilars of the drug in over a dozen
countries, including India, at a price
lower by over 25 percent than Roche’s
(`75,000 for a 440mg vial). In the com-
plaint filed last year, the two firms have
alleged that Roche wrote to doctors,
hospitals, and regulators in a bid to mis-
lead them about the safety and
efficacy of biosimilars.
In an interim order, the
CCI said it found merit
in Biocon’s and Mylan’s
arguments, and ordered
its director general to
conduct the probe.
Swiss pharma co faces probe
—Compiled by Ratnadeep Choudhary
No withdrawal of coronary stents
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Acivil court in Bengaluru granted
temporary injunction holding back
author Chetan Bhagat from selling his
book One Indian Girl following a
writer’s suit claiming that the work was
a copy of one of her short stories,
Drawing Parallels, from her book, Life,
Odds & Ends. Anvita Bajpai, an IIT and
IIM graduate, had filed a suit, seeking a
permanent injunction restraining
Bhagat and his publisher from selling
the book and also claimed damages of
`1 lakh. The court has passed a tempo-
rary injunction order on April 19 until
the next hearing.

14. Lead/ Supreme Court vs Government
14 May 8, 2017
HERE is a constitutional
battle being fought
between the BJP-led NDA
government of Prime
Minister Narendra Modi
and the Supreme Court
with regard to the appointment of
judges to the higher judiciary, namely
the high courts and the Supreme Court.
The Modi government brought in the
99th Constitution Amendment Act and
the National Judicial Appointment
Commission (NJAC) Act in 2014. The
idea of the NJAC did not originate with
the NDA. It was mooted during the sec-
ond term of the Congress-led United
Progressive Alliance (UPA) government
and a parliamentary standing commit-
tee made a detailed recommendation.
But UPA2 could not push through the
Deadlocked
Yet Again
Theturfwarbetweenthe
judiciaryandtheexecutive
overappointmentofjudges
reachesanothercul-de-sac.
Therearenosignsofa
modifiedMemorandumof
Procedure(MoP)heralding
transparencyseeingthe
lightofday
By Parsa
Venkateshwar Rao Jr
T
AConsultative
Process
The working of the presidium as
spelt out in what is called the
Second Judges case of 1993:
The process of appointment of
Judges to the Supreme Court and the
High Courts is an integrated “participa-
tory consultative process” for selecting
the most suitable persons available for
appointment; and all the constitutional
functionaries must perform this duty
collectively with a view primarily to

15. | INDIA LEGAL | May 8, 2017 15
legislation for setting up the NJAC.
The NJAC was meant to take away
the exclusive privilege enjoyed by the
Supreme Court to nominate judges
through what has become the collegium,
comprising the Chief Justice of India
(CJI) and four senior-most judges of the
Supreme Court. The NJAC, on the other
hand, would have included the law min-
ister, two eminent jurists apart from the
CJI and two other senior judges of the
apex court.
The NJAC Act and the Constitution
Amendment that went with it were
challenged by the Advocates-on-Record.
And the Supreme Court had in its judg-
ment of October 15, 2015 struck both of
them down, holding them null and void,
and unconstitutional. When the five-
judge constitutional bench headed by
then Justice JS Khehar was hearing the
case, it was argued by the government as
well as those who opposed the NJAC,
that there is need for improving the col-
legium system, and that there is need
for greater transparency. In the judg-
ment quashing the NJAC, the court had
agreed to hear separately suggestions for
improving the working of the collegium.
NEW CRITERIA DRAWN UP
It was in response to this demand that
the same constitutional bench heard
arguments in November 2015, and it
issued an order on December 16, 2015
setting out some of the criteria that
could be included in the Memorandum
of Procedure (MoP). The order men-
tioned four of them: Eligibility criteria;
Transparency; Secretariat; Complaints;
and Miscellany.
The court arrived at these four heads
after hearing arguments from Attorney
General Mukul Rohatgi and other sen-
ior counsels including those from other
high courts, and from the Supreme
Court Bar Association. As the court
wanted to get a wider feedback, it had
agreed that a committee comprising
Additional Solicitor General Pinki
Anand and Senior Advocate Arvind
Datar would compile all the suggestions.
Most of the suggestions were sent to the
website of the Department of Justice,
and Anand and Datar brought them
under 32 broad heads after sifting
through 11,500 pages of them.
The five-judge bench headed by
Khehar in its order of December 16,
2015 had asked the government to
reach an agreed decision, subserving the
constitutional purpose, so that the occa-
sion of primacy does not arise.
Initiation of the proposal for appoint-
ment in the case of the Supreme Court
must be by the Chief Justice of India,
and in the case of a High Court by the
Chief Justice of that High Court; and for
transfer of a Judge/Chief Justice of a
High Court, the proposal has to be initiat-
ed by the Chief Justice of India. This is
the manner in which proposals for
appointments to the Supreme Court and
the High Courts as well as for the trans-
fers of Judges/Chief Justices of the High
Courts must invariably be made.
In the event of conflicting opinions by
the constitutional functionaries, the
opinion of the judiciary “symbolised by
the view of the Chief Justice of India”,
and formed in the manner indicated,
has primacy.
No appointment of any Judge to the
Supreme Court or any High Court can be
made, unless it is in conformity with the
opinion of the Chief Justice of India.
In exceptional cases alone, for stated
strong cogent reasons, disclosed to the
Chief Justice of India, indicating that the
recommendee is not suitable for appoint-
ment, that appointment recommended
by the Chief Justice of India may not be
made. However, if the stated reasons are
not accepted by the Chief Justice of
India and the other Judges of the
Supreme Court who have been consult-
ed in the matter, on reiteration of the rec-
ommendation by the Chief Justice of
India, the appointment should be made
as a healthy convention.
The opinion of the Chief Justice of
India has not mere primacy, but is deter-
minative in the matter of transfers of High
Court judges/Chief Justices.
In making all appointments and trans-
fers, the norms indicated must be fol-
lowed. However, the same do not confer
any justiciable right in any one.
Only limited judicial review on the
grounds specified earlier is available in
matters of appointments and transfers.
Thecourtarrivedat4criteriaheadsafterhearingargumentsfromA-GMukulRohatgi
(farleft)andotherseniorcounsels.Asthecourtwantedtogetfeedback,itagreedthat
acommitteecomprisingAdditionalSolicitorGeneralPinkiAnand(centre)andSenior
AdvocateArvindDatar(right)wouldcompilethesuggestions.

16. Lead/ Supreme Court vs Government
16 May 8, 2017
prepare the Memorandum of Procedure
(MoP). While it listed the broad head-
ings mentioned above which could be
incorporated, it made it clear that the
new MoP should be in conformity with
the system of choosing the judges of the
Supreme Court and the high courts as it
had been spelt out in two of the earlier
judgments of the court, known as the
Second Judges case of 1993 and the
Third Judges case of 1998.
These two judgments set out the
process, where the CJI, in consultation
with four senior-most judges of the
Supreme Court, will recommend names
for appointment as judges of the
Supreme Court, and the CJI in consulta-
tion with the Chief Justice of the partic-
ular High Court will recommend names
for appointment as judges of that High
Court. The Supreme Court grouping of
the CJI and the four senior-most judges
came to be known as the collegium. In
the case of the high courts, the chief jus-
tice along with two senior-most judges
constituted the collegium.
Following the court’s order, govern-
ment prepared the draft MoP incorpo-
rating the new criteria and sent it to the
CJI on March 22, 2016. The court sent
back the draft MoP in the summer
(May-July) of 2016. The government
then sent a revised version of the MoP
on August 3, 2016. The court returned
the MoP in March, 2017 and let it be
known that this was the final version in
the eyes of the court.
The final version put the government
in a tight spot because the court rejected
all the major changes that were suggest-
ed with regard to wider consultation in
choosing judges, transparency on the
decisions of the collegium and the need
for setting up a secretariat to look at the
complaints that came up against those
nominated to be judges.
GOVERNMENT DILEMMA
An official in the Ministry of Law and
Justice succinctly expressed the dilem-
ma of the government in the face of the
MoP that has come back from the court:
“The government is not in a mood to
confront and it is not in a mood to
yield.” Preparing a MoP which would
not include major changes would mean
that it is back to the old ways of the col-
legium deciding the appointment of
judges of the Supreme Court and high
courts through undisclosed consulta-
tions among brother-judges.
After having failed to get through its
proposal of the NJAC, the government
had hoped that it could change signifi-
cantly the contours of the functioning of
the collegium. What was considered a
closed-door process was sought to be
made more open. But the court is in no
mood to oblige. The government is in
the unenviable position of not being
able to push through the modified MoP
and unwilling to accept the status quo.
When the Supreme Court Collegium
(SCC) recently cleared the names of 51
candidates to be appointed judges of
high courts, it seemed that there was a
thaw between the Supreme Court and
the government, and the MoP issue has
been sorted out. It was not. There is a
deadlock over the MoP.
Though government sources deny it,
there is no doubt that the deadlock over
the MoP hangs like a shadow over the
appointment of judges. The government
source said that every year about 80
judges retire from the high courts, and
the urgency grows for getting in new
appointees to fill places vacated by the
superannuated.
Says Additional Solicitor General
Anand: “There is no consensus between
the Supreme Court and the government
on the issue of who would take the final
The expression “consultation with
the Chief Justice of India” in Articles
217(1) of the Constitution of India
requires consultation with a plurality
of Judges in the formation of the
opinion of the Chief Justice of India.
The sole, individual opinion of the
Chief Justice of India does not con-
stitute “consultation” within the
meaning of the said Articles.
The Chief Justice of India is not
entitled to act solely in his individual
capacity, without consultation with
other Judges of the Supreme
Court, in respect of materials and
information conveyed by the
Government of India for non-
appointment of a judge recom-
mended for appointment.
Strong “cogent reasons” do not
have to be recorded as justification
for a departure from the order of
seniority, in respect of each senior
Judge who has been passed over.
What has to be recorded is the pos-
itive reason for recommendation.
The views of the Judges consult-
ed should be in writing and should
be conveyed to the Government of
India by the Chief Justice of India
along with his views to the extent
set out in the body of this opinion.
The Chief Justice of India is
obliged to comply with the norms
and the requirement of the consul-
tation process, as aforestated, in
making his recommendations to the
Government of India.
Recommendations made by the
Chief Justice of India without com-
plying with the norms and require-
ments of the consultation process,
as aforestated, are not binding
upon the Government of India.
RoleoftheCJI
The Third Judges case of 1998
clarified the role of the Chief
Justice in the functioning of the
presidium, and emphasis was
laid on the consultative process
in the presidium:
“ItisnotlikeaUPSCexamination
andinterview,wherethemarks
havetobemadepublic.The
choosingofajudgeisdifferent,
andthereisneedforbeing
discreetwithregardto
theprocesses.”
—ArvindDatar,advocate

17. | INDIA LEGAL | May 8, 2017 17
call on the question of integrity.”
She said as corruption and merit
were the two main concerns of both the
judiciary and the government, integrity
implied that a person was incorruptible
and that he or she is also deserving in
terms of judicial competence.
TRANSPARENCY LACKING
The mode of appointing judges remains
a moot issue. Senior advocate in the
Supreme Court, Arvind Datar, told India
Legal that the “collegium system” in the
Supreme Court has worked well. There
have been mistakes but their incidence
is not alarming. He is more concerned
about the modus operandi with regard
to the choice of judges of high courts.
He thinks that there is not enough of
internal transparency.
He says: “If a high court collegium
recommends 15 names to the Supreme
Court for appointment as judges in the
high court, 11 are accepted and four are
rejected. No reasons are given as to why
the four are rejected. When the chief
justice of a high court has recommended
names, he or she would have scrutinised
the eligibility of the person before mak-
ing the recommendation. The Supreme
Court should share with the high court
chief justice the reasons for rejecting the
four persons. And the CJI should even
meet the four persons before rejecting
their candidacy.”
He says it is not necessary for the CJI
to make public the reasons for rejecting
candidates, but feels that the SCC’s rea-
soning for rejecting some should be
shared with that high court’s collegium.
Though he was one of the two, along
with Anand, of a committee that sifted
through thousands of suggestions that
poured in for changing the functioning
of the collegium at the Supreme Court
and make it more open and transparent,
Datar is quite clear that there cannot be
too much openness, or too much trans-
parency in the process of selecting
judges for the Supreme Court. “It is not
like a Union Public Service Commission
(UPSC) examination and interview,
where the marks have to be made pub-
lic. The choosing of a judge is different,
and there is need for being discreet with
regard to the processes. Everything with
regard to choosing a judge cannot be
made public.” What Datar demands is
internal transparency. He is worried
that the best people could be overlooked
because of the peremptory rejection
mode of the SCC.
Ministry sources are worried on the
same issue of getting the best people to
be judges, but they approach the issue
from the other end—that of widening
the consultation process in order to tap
a wider talent pool. One of the main
reservations about the existing function-
ing of the collegium, both at the
Supreme Court and high courts is that
confining consultation to senior judges
who are members of the collegium nar-
rows the range of the talent scan. It is
argued that the consultation should not
be confined to the four senior-most
judges in the Supreme Court and to two
senior-most judges in high courts. It is
said that in a high court, where there
are 60 judges, it is possible that some of
the lawyers who could make good judges
may not appear before the senior judges
who are members of the collegium.
Unless suggestions are taken from a
greater number of judges, it is quite
likely some of the bright lawyers would
go unnoticed. It is felt that by not
accepting the need for open and wider
consultation in looking out for potential
judges, the collegium ends up looking at
a limited talented pool.
Datar’s point that judges cannot be
chosen through a public talent contest
is a view that cannot be pushed aside.
Choosing judges is not the same as
choosing a member of the legislative
assembly (MLA) or a member of
parliament (MP). At the same time,
choosing a judge cannot be fair and
efficient if it is restricted to a very
limited group of senior judges.
Somewhere the balance has to be
struck between being too open and
being too closed. The Supreme Court
and the Modi government would have to
reach out to each other to reach the elu-
sive consensus.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
ThefinalversionoftheMoP
putsthegovernmentinatight
spotbecausethecourtrejected
allthemajorchangesthat
weresuggested.
NEED FOR SPEEDY JUSTICE
Litigants waiting at the Gurgaon
District Court complex
Anil Shakya

18. Supreme Court / Lokpal and Lokayuktas Act
IVE years ago, when Anna
Hazare began an indefinite
fast to urge the then UPA
government and the political
class to pass a legislation to
create a Lokpal, it galvanised
people across the country. The hasty pa-
ssage of the Lokpal and Lokayuktas Act
in parliament in 2013 brought an end to
Hazare’s agitation even though it did not
help the ruling Congress itself at the
hustings. One would have expected that
those who succeeded the UPA would
make the Lokpal a reality considering
the potential it had to make and un-
make governments and keeping in view
the lessons of contemporary history.
With both the political class and
social movements turning their back on
the Lokpal issue, it required two NGOs
—Common Cause and Youth for
Equality—to file PILs in the Supreme
Court to seek its direction on making
the Lokpal start functioning. The
Supreme Court bench of Justices
Ranjan Gogoi and Navin Sinha after
hearing the petitioners and the govern-
ment for three successive years, deliv-
ered its judgment on April 27 and
observed that the Lokpal and Lokayuk-
tas Act, 2013 is a perfect legislation. It
further said there is no hurdle to imple-
ment it. So, why did the political class
drag its feet on implementing this Act?
RELUCTANT PARTIES
After the passage of the Act in parlia-
ment, it was brought into force by a
notification issued in the Official
Gazette on January 16, 2014. The outgo-
ing UPA government rightly avoided
Out of the Deep Freeze
InamovetomakethisActworkable,theapexcourthastoldthegovernmentthattheLokpal
canbeappointedevenifthereisnoLeaderoftheOppositionintheLokSabha
By Venkatasubramanian
F
ANTI-CORRUPTION CRUSADER
Anna Hazare went on an
indefinite fast to exert pressure
on the Indian government to
enact the Lokpal
appointing the members of the Lokpal
as general elections were round the cor-
ner. Strangely, the BJP government
which came to power in 2014, also
avoided taking steps to appoint mem-
bers of the Lokpal, citing a technical
requirement on who could be members
of the selection committee.
Under Section 4 of the Act, the
chairman and members of the Lokpal
shall be appointed by the president after
obtaining the recommendations of the
selection committee. This committee
should consist of the PM as the chair-
person, the Speaker of the Lok Sabha,
the Leader of the Opposition in the Lok
Sabha, the Chief Justice of India or a
judge of the Supreme Court nominated
by the CJI and one eminent jurist, as
recommended by the chairperson and
18 May 8, 2017
Anil Shakya

19. amendment bill in parliament. It held
that the Act, as it exists, is otherwise
viable, and the amendment sought to be
introduced by parliament only aimed at
a more efficient working of some of the
provisions of the Act. “A law duly enact-
ed and enforced must be given effect to,”
the Court held. It reasoned: “If, at pres-
ent, the Leader of the Opposition is not
available, surely, the Chairperson and
the other two Members of the Selection
Committee, namely, the Speaker of the
Lok Sabha and the Chief Justice of India
or his nominee may proceed to appoint
an eminent jurist as a Member of the
Selection Committee under Section
4(1)(e) of the Act.”
The Court further held that the
opinion of the Parliamentary Standing
Committee against Selection and Search
Committees performing their roles
despite vacancies, is not sacrosanct, and
does not have any material bearing on
the validity of the existing provisions of
the Act.
The Court’s moral exhortation will
hopefully end the stalemate on making
Lokpal a reality sooner than later.
the other members.
The Act makes it clear that no appoi-
ntment of a chairperson or a member
shall be invalid merely by reason of any
vacancy in the selection committee. It
has to constitute a search committee
consisting of at least seven persons of
standing and having special knowledge
and expertise in matters relating to anti-
corruption policy, public administration,
vigilance, policy making, finance, law
and management or in any other matter.
The Act requires that not less than 50
percent of the members of the search
committee shall be from among SCs,
STs, OBCs, Minorities and women.
AMENDMENTS PROPOSED
As per the results of the 2014 general
elections, the Congress does not have
the requisite 10 percent strength of the
membership of the Lok Sabha for its
chief to be recognised as the Leader of
the Opposition. Therefore, the govern-
ment proposed an amendment to the
Act saying that where there was no
Leader of the Opposition, the Leader of
the single largest Opposition party in
the House would be a member of the
selection committee. Another amend-
ment proposed is that an eminent jurist
shall be nominated for a period of three
years and shall not be eligible for
renomination. Yet another one proposed
that no appointment of a chairperson or
a member or the nomination of an emi-
nent jurist shall be invalid merely by
reason of any vacancy or absence of a
member in the selection committee.
These proposals left the Lokpal Act
in deep freeze. The Bill carrying these
amendments was referred to the Parlia-
mentary Standing Committee on Dec-
ember 25, 2014, after it was introduced
in the Lok Sabha. The Committee took
almost a year to submit its report on
December 3, 2015. The Committee had
suggested that the Search and Selection
Committees should not take any deci-
sion unless their vacancies are filled up,
and recommended suitable provisions in
the Bill to ensure filling up of such vaca-
ncies at the earliest. But the Committee
approved the provision that the leader
of the single largest opposition party be
granted the status of the Leader of the
Opposition for the purpose of the mem-
bership of the selection committee.
The government claimed to the
Court that the report of the standing
committee has been under its scrutiny
for more than a year, and it will be con-
sidered in the Monsoon Session of par-
liament this year. It told the Court that
there could be no direction to parlia-
ment to frame any law or to amend the
existing one or to complete a legislative
exercise within any time frame.
The Court said the Lokpal Act could
be workable despite the pendency of the
TheCourtheld:“If,atpresent,
theLeaderoftheOppositionis
notavailable…theSpeakerof
theLokSabhaandtheChief
JusticeofIndia...mayproceedto
appointaneminentjurist....”
WHEN THE SUN SHONE
The hasty passage of the Lokpal in parliament
in 2013 brought an end to Hazare’s stir but it
did not help the Congress at the hustings
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | May 8, 2017 19
UNI

20. Cynicism apart, the reasoning behind
this step was partly endorsed in 2013 by
the Supreme Court bench comprising
Justices GS Singhvi and C Nagappan in
the case of Abhay Singh v State of Uttar
Pradesh and Others.
UNPARALLED POWER
The apex court had then agreed that red
beacons symbolise power and starkly
differentiated between those who were
allowed to use it and those who weren’t.
But this is not the reason why the Court
wanted it banned selectively.
Supreme Court/ Red Beacons
20 May 8, 2017
HE ban imposed by the
Union cabinet on April 19
on the use of red beacons
on all vehicles from May 1
is, at best, a symbolic
gesture. How did the gov-
ernment suddenly realize that this sym-
bolised VIP culture? It would be naive
to consider this gesture as a sincere
attempt on the part of the government
to ensure that power and privilege are
not openly displayed as it is not likely to
lead to any dent in the privileges
enjoyed by our VVIPs.
A large number of those using vehicles
with red lights have no respect for the
laws of the country and treat ordinary
citizens with contempt, it reasoned. The
use of red beacons on the vehicles of
public representatives and civil servants
has perhaps no parallel in the world’s
democracies, the Court added.
After examining the relevant provi-
sions of the Motor Vehicles Act, the
bench was initially inclined to agree
with the Amicus Curiae, Harish Salve,
that the use of signs and symbols of
authority such as red lights are contrary
to the constitutional ethos and the basic
feature of republicanism. But on deeper
consideration, the bench accepted the
submissions of the then government
that the term “high dignitaries” used in
proviso to Rule 108(1) of the 1989 Motor
Vehicle Rules would take within its fold
various constitutional functionaries, that
is, holders of constitutional offices.
The bench found merit in the argu-
ment that when the framers of the
constitution considered it appropriate
to treat those occupying constitutional
positions as a special category, there
was no reason for the Court to exclude
them from the ambit of the term “high
dignitaries”. The bench also agreed with
the view that the use of red lights on
vehicles carrying the holders of constitu-
tional posts would in no manner com-
promise with the dignity of other citi-
zens and individuals or embolden them
to think that they were superior to other
people. This was more so because this
distinction would be available to them
only while on duty and would be co-ter-
minous with their tenure.
Yet, the Court approved of the partial
ban because of the misuse of red lights
on the vehicles carrying large number of
persons other than “high dignitaries”.
The governments of most states and
Union Territories, the Court suggested,
used the power of issuing notifications
to enlarge the list of persons entitled to
ThoughthebanontheselightsfromMay1willnotbringan
endtothecultureofprivilegeamongVIPsinIndia,itcould
checkthemisuseofthesevehiclesforcommittingcrimes
By Venkatasubramanian
T
ARRIVING IN STYLE
The red beacon atop vehicles is a well
recognised symbol of the VIP culture
Just a Symbolic
Gesture?
UNI

21. | INDIA LEGAL | May 8, 2017 21
use red lights with or without
flashers, whether on duty or
otherwise.
PARTIAL USE
The Court also noted that
there was an abysmal failure
on the part of the concerned
authorities and agencies of
various state governments
and UTs to check misuse of
these vehicles. As a result,
they were used for commit-
ting crimes, while police offi-
cials were scared of checking
them (in the belief that influential
VVIPs might be travelling in them), let
alone imposing a fine or penalty on
them and their occupants. Therefore,
the Court directed that in such cases,
vehicles carrying “high dignitaries” spec-
ified by the central government and
state governments might be fitted with
red lights but these could be used only
while the dignitary was on duty and not
otherwise.
The Court further limited the power
of states and UTs from enlarging the
scope of the term “high dignitaries” be-
yond what was already there in govern-
ment notifications. Thus, there were 12
categories of high dignitaries who could
have a red beacon with a flasher on their
vehicles, starting from the president to
include the vice-president, prime minis-
ter and judges of the Supreme Court. A
separate list of 15 high dignitaries who
could use a red beacon without a flasher
was also drawn up.
Clause iii of the Proviso to sub-rule
(1) of Rule 108 of the Central Motor
Vehicles Rules, 1989, gave exemption to
vehicles carrying high dignitaries as
specified by the central government or
the state government, from time to time,
from the ban on use of red beacons.
Sub-rule (2) permitted use of blue light
with flasher, if the same is determined
and notified by the state governments at
their discretion. Sub-rule (3) permitted
use of blue light with or without flasher
as a top light on vehicles escorting high
dignitaries who were entitled to use of
red light. Sub-rule (5) required state
governments to inform the centre
regarding notifications permitting use of
red light on top of vehicles used by dig-
nitaries. Sub-rule (6) required that red
or blue light of vehicles not carrying dig-
nitaries should not be used, but covered
by black cover. All these clauses were
omitted through the April 20 amend-
ment, notified by the Union Ministry of
Road Transport and Highways.
AMENDED PROVISION
Earlier, the use of red, blue and white
lights was permitted only on vehicles
specifically designated for emergency
duties and only if such use was specified
by state governments under sub-rule
(4). The April 20 notification of the
Ministry amended this provision to
include disaster management, along
with the emergency duties, and trans-
ferred the power to specify such use
from the state governments to the cen-
tre. This is perhaps not well thought-out
because the state governments during
emergencies and disasters must have the
power to specify such use. Ceding this
power exclusively to the centre would
mean abdication of responsibilities by
state governments during calamities.
This is because the Supreme Court in
January 2015 accepted the Delhi Police’s
plea and modified its 2013 order to per-
mit the use of red lights by operational
agencies which require unhindered acc-
ess to roads for the performance of their
duties, namely, ambulance services, fire
services, emergency maintenance, etc.
The Court accepted the contention of
the Delhi Police that red light has maxi-
mum penetration even in low-visibility
conditions such as fog, dust and at
night, whereas blue light has the mini-
mum wavelength and least penetration.
The 2013 Supreme Court judgment
also recommended imposition of
enhanced penalties to deter misuse of
red beacons on vehicles. At present, the
fines laid down under Section 177 of the
Motor Vehicles Act, 1988, range from
just `100 to `300. The April 20 notifica-
tion is silent on enhanced penalties and
is therefore, a disappointment.
TheCourtnotedthatthere
wasanabysmalfailureon
thepartoftheconcerned
authoritiestocheckvehicles
withbeacons.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
President
Vice-President
Prime-Minister
Former Presidents
Deputy PM
Chief Justice of India
Speaker of Lok Sabha
Cabinet ministers of the Union
Deputy Chairman of the Planning
Commission
Former Prime Ministers
Leader of Opposition in Rajya
Sabha and Lok Sabha
Judges of the Supreme Court
Shiningbeacons
According to a central govern-
ment notification of 2002,
amended in 2005, 12 categories
of “high dignitaries” can use the
red beacons with a flasher:
Fifteen other categories were allowed to
use red beacons but without a flasher
UNI

22. Supreme Court/ Kerala DGP
A Hard-fought Victory
ThereinstatementofTPSenkumarbytheapexcourthascomeasamajorembarrassmentto
theLeftFrontgovernmentandChiefMinisterPinarayiVijayan
By Naveen Nair in Thiruvananthapuram
N a major embarrassment to the
Kerala government, the Supre-me
Court asked it to reinstate
its DGP, TP Senkumar, who had
been replaced by Loknath Beh-ra.
Senkumar had waged a year-long
battle with the state government and
now feels vindicated.
On April 24, a Supreme Court ben-
ch of Justices MB Lokur and Deepak
Gupta said: “The removal or displace-
ment or transfer out of an officer from
a sensitive tenure post requires serious
consideration and good reasons that can
be tested so that the officer is not dealt
with as a pawn in a game.” This verdict
has set a benchmark and proved that
honest officers can hope to be protected
from transfers and removals based on
the whims and fancies of the govern-
ment of the day.
LANDMARK CASE
A beaming Senkumar told India Legal:
“This judgment vindicates the stand
that I had taken but it is also a judgme-
nt for future generations. This can now
be used by any officer who is honest and
has got the confidence that he is uprig-
ht. I hope that now all over India, gov-
ernments will think twice before chang-
ing officers as per their whims and fan-
cies.’’ He said this judgment might also
help in better policing as DGPs would
feel confident about taking the right ac-
tion without fear of losing their jobs.
Incidentally, Senkumar was looking into
I
FAITH RESTORED
Reinstated DGP TP Senkumar believes this
judgment will discourage state governments
from arbitrarily removing officers
22 May 8, 2017
UNI

23. cient—there must be some material on
record (other than a newspaper report)
but unfortunately nothing has been
pointed out to us during the course of
submissions. It is not enough to merely
contend that the State Government was
subjectively satisfied that the appellant
ought to be transferred out as the State
Police Chief,” the Supreme Court said.
KERALA POLICE ACT
It went on to add that Senkumar’s re-
moval violated all guidelines the Court
had previously set for such cases. It
came down heavily on the government
for not having an independent member
in the State Security Committee on wh-
ose final recommendations such an
order could be taken. It quoted from
Prakash Singh & Ors v Union of India
& Ors 2006, where a retired police
many cases related to several politicians.
While accepting the arguments of
Senkumar, the apex court rejected the
reasons for his transfer which the state
government had put forth. The two ins-
tances given by the government where
Senkumar had erred were the Puttingal
Temple tragedy that killed 130 people
and the Jisha rape and murder case in
Perumbavoor.
In the Puttingal case, the apex court
said there was nothing to prove that
Senkumar had interfered in the investi-
gations as the officer did not stand to
gain anything by doing so. As for him
not taking action against erring officers,
the court asked the government what
prevented the chief minister from doing
so for three months after the incident
and before the sacking of Senkumar?
Regarding Jisha’s murder, the gov-
ernment failed to prove that Senkumar
had intervened in the investigation or
tried to influence it from outside.
The third argument of the state agai-
nst Senkumar was that he had breached
Section 97(2)(e) of the Kerala Police Act
and brought “immense dissatisfaction
among the people on the working of the
police” in the above mentioned cases.
But the Court said that me-re subjective
arguments to prima facie prove dissatis-
faction as per the wishes of the govern-
ment cannot be grounds for removing
an officer.
“Mere repetition of the provisions of
Section 97(2)(e) of the Act is not suffi-
IN NEED OF REFORMS
(From far left) Yerwada Jail, Pune; Mumbai
Jail; a prisoner being taken to rom far left)
Yerwada Jail, Pune; Mumbai Jail; a prisoner
POLITICISING A TRAGEDY
The government had cited the Puttingal
Temple tragedy as an instance where
Senkumar had erred
| INDIA LEGAL | May 8, 2017 23
UNI
TheSupremeCourt
judgmentisa
personalblowfor
ChiefMinister
PinarayiVijayan.
Hishandlingof
thehome
departmentleaves
muchtobedesired
evenwithinhis
ownparty.

24. ssed in the detailed counter-affidavit
and elsewhere that the appointment of
the appellant was irregular if not illegal.
If that is so and the State Government
of Kerala is bent upon making irregular
or illegal appointments to sensitive
posts, then no one can help God’s own
country.’’
BLOW TO CM
The knives are already out for Chief
Minister Pinarayi Vijayan whose han-
dling of the home department leaves
much to be desired even within his own
party. The CPM state secretariat, in a
recent sitting, had severely criticised the
way he had led the police force in the
last 10 months.
Senkumar’s reinstatement has been
a personal blow for the CM. C Gouri-
dasan, Kerala Bureau chief of The
Hindu, said: “Senkumar was the first
officer who was removed by Vijayan
when he came to power. Now see what
has happened. He has come back and
proved his point. This is nothing short
of a body blow to the chief minister.’’
Ironically, in the course of hearing
this case, the Supreme Court had asked
the state government what difference
had been made after Senkumar’s
removal. “The reports we hear from
Kerala point to a lot of issues with the
police. Are you not changing your DGP
now?’’ asked the Court earlier this
month to senior counsel Harish Salve.
Activist CR Neelakandan comment-
ed: “We feel this is a judgment against
the policies of the government. The
Left government should learn a lesson
from this and change the way it is run-
ning the police establishment. Other-
wise, worse times could hit the Pina-
rayi government.’’
officer, Prakash Singh, had petitioned
the Court to set up a new police act to
ensure that it is accountable essentially
and primarily to the law of the land.
That judgment had called for the
setting up of a State Security Commi-
ssion whose decisions on such matters
would be binding on the state. But the
Court said this had been violated in the
Senkumar case. It also criticised the
Kerala Police Act, 2011, whose provi-
sions seem to overlook the guidelines
set up by this court.
“It was directed that the recommen-
dations of the State Security Commi-
ssion shall be binding on the State
Government. Incidentally, on our ask-
ing we were informed by learned coun-
sel for the State Government that as of
now, the State Security Commission
does not have any independent mem-
ber,’’ the judgment read.
DGP’S TENURE
The Court directed that the DGP sho-
uld have a minimum tenure of two yea-
rs irrespective of his period of superan-
nuation and he can be removed only
under special circumstances in consul-
tation with the State Security Commi-
ssion. The SC added: “All these direc-
tions were given by this Court so as to
insulate the Police from external pres-
sures and maintain the rule of law and
not of persons.”
The judgment further said that the
initial report filed by Additional Prin-
cipal Secretary Nalini Netto’s in both
cases did not point fingers at Senkumar.
But the “padding up” was later done to
ensure that his ouster looked legiti-
mate, implying that justice was denied
to Senkumar.
The judgment indicted the state gov-
ernment further by saying: “We are also
a little disturbed with the view expre-
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Theremovalordisplacementor
transferoutofanofficerfroma
sensitivetenurepostrequires
seriousconsiderationandgood
reasonsthatcanbetestedso
thattheofficerisnotdealtwith
asapawninagame.”
—SupremeCourtjudgmentinthe
Senkumarcase
FAIR JUDGMENT
In the Jisha murder case, the government
failed to prove that Senkumar had intervened
in the investigation
Supreme Court/ Kerala DGP
24 May 8, 2017
UNI

26. Economy/ Fiscal Year
26 May 8, 2017
PEAKING at the NITI
Aayog’s governing council
meeting in Delhi on April
23, Prime Minister
Narendra Modi made it
abundantly clear that he
favoured India shifting to a January to
December fiscal year from the current
April to March cycle which has been fol-
lowed since 1867. The proposed change
comes with some plusses and a few
minuses, including the costs involved in
shifting from one entrenched system to
a new one.
Sources in the finance ministry told
India Legal that an immediate change is
unlikely since it would come as a “dou-
ble disruption” to all concerned. Said an
official: “At a time when the govern-
ment, the tax authorities as well as the
entire business community is gearing
itself for the shock of the GST regime
rollout, the change in the financial year
(FY) will come as yet another major
headache. The general consensus in the
ministry is that the change in FY should
happen but perhaps it may not be advis-
able to push things in a hurry when we
have the GST rollout before us.”
Archit Gupta, CEO of ClearTax, a
portal that advises business houses,
said: “Any change in the financial year at
this crucial time prior to the launch of
GST may create additional challenges
for businesses. A change could result in
a transition period that may cause
business disruption and slowing down.
Until GST settles down, FY change
should not be considered in the next
two-three years.”
NO DEADLINE
The Prime Minister did not set any
deadline for implementing the new FY
although one cannot predict if he will
spring a surprise as he did with demon-
etisation. But as of April 23, he was
merely echoing a suggestion that has
been doing the rounds in the govern-
ment for several decades (see box). More
importantly, the need for a new financial
A Double Disruption?
Whileshiftingthefinancialyearcyclemayrequirelegislationforsmoothtransition,expertssay
thechangeshouldn’tbehastyandmustnotclashwiththeGSTrollout
By Ajith Pillai
S
Photos: UNI

27. | INDIA LEGAL | May 8, 2017 27
year cycle has been on the agenda of the
Modi government ever since the forma-
tion of the NITI (National Institution
for Transforming India) Aayog on
January 1, 2015, to replace the Planning
Commission.
In fact, in July last year, the centre
appointed a committee under Chief
Economic Advisor, Shankar Acharya to
examine the feasibility of changing the
FY. Some states agreed, although
Maharashtra objected. It felt that any
change would be “needlessly disruptive
to the state of Maharashtra at a time
when fixing the economy and imple-
menting GST and new financial norms
should be the priority.”
A discussion note for NITI Aayog
last year titled Need for Changing
India’s Financial Year by economists
Bibek Debroy and Kishori Desai spells
out in detail the need to shift from a
budget system that was introduced
seven years after the transfer of the
Indian administration from the East
India Company to the British Crown in
1860. “The present financial year in
India (1st April to 31st March) was
adopted by the Government of India in
1867 principally to align the Indian
financial year with that of the British
government,” says the note.
But the authors of the note also
recognised that shifting to a new FY
cannot happen overnight. They said a
legislation may be required to bring
about the change. They suggested intro-
ducing the New Indian Financial Year
Act and getting it passed in parliament.
The new legislation, they felt, should
address the following:
Define the new financial year and the
“transitional financial year”
Amend the definition of financial year
in General Clauses Act 1896
Detail appropriate changes to taxation
and financial administration statutes
and rules (including implications of rec-
ommendations of the 14th Finance
Commission) for the “transitional finan-
cial year” and the procedures
Detail changes in the statistical data
collection and dissemination guidelines
Facilitate similar changes to be adopt-
ed by state governments
REASONS FOR CHANGE
The key reasons cited for changing the
FY were two. One, the January-
December cycle will align with the com-
mon time-frame for budget years in
most developed countries. This will be a
clear positive as the Indian economy
gets increasingly globalised. Also, ease
of conducting business in India would
significantly improve since MNCs will
no longer have to deal with two financial
years—one in their home country and
the other in India. Said DK Joshi, chief
economist at Crisil, a rating agency: “A
change to the global practice is good. It
will align our numbers with the rest of
the world.”
At the domestic level, experts have
long been recommending that a change
in the FY is necessary to focus budget-
ary allocations in a country where agri-
culture plays a significant role in the
economy. The South-West monsoon
ChangingtheFYwillalign
withthetime-frameforbudget
yearsinmostdeveloped
countriesandeaseofconducting
businesswouldimprove.
SEASONS OF CHANGE
A change in the FY is necessary to focus budgetary
allocations in a country where agriculture plays a
significant role in the economy

28. Economy/ Fiscal Year
28 May 8, 2017
which sets in during May and retreats in
July is the principal rainy season
accounting for 75 percent of rainfall. It
is followed in October-December by the
South-East monsoon which covers
coastal areas of Tamil Nadu. But both
the kharif and rabi crops are impacted
mainly by the South-West monsoon.
The timeline of the current budget
is such that although finalisation of
budgetary estimates happens in
December-January, it is May by the time
parliament and the president approve
the Finance and Appropriation Bill.
As a result, when the new allocations
finally reach the implementing agencies,
it is May-end or June. That’s when the
new South-West monsoon is about to
kick in. So, the estimates and allocations
arrived at with data from the previous
year lose relevance.
As the NITI Aayog note points out:
“From the perspective of monsoons, it
essentially means that by the time
Government authorises fresh alloca-
tions, the impact of previous South-
West monsoon is well over (more than 8
months over) and by the time fresh allo-
cations reach implementing authorities
(May/June)–the (new) South-West
monsoon is just about to set in, thereby
leaving no immediate space for course-
corrections, if needed.”
UNDER-UTILISED FUNDS
It also points out that under the present
system, much of the development and
construction work for which monies is
allotted in May/June is immediately hal-
ted because of the monsoon and is resu-
med in August/September. This means
that implementation and utilisation of
funds in the current FY cycle is limited
and often under-utilised because the
funds reach the implementing agencies
when the monsoon is about to break.
The NITI Aayog paper acknowledges
that the change would come with atten-
dant teething troubles. To quote: “Any
change in the financial year would cause
in the short run considerable dislocation
in the administrative and statistical fiel-
ds of activity. But that consideration sh-
ould not deter us from adopting a more
rational, practical and convenient syst-
em, keeping in view the many advanta-
ges which will accrue therefrom…. Past
experience in such matters shows that
the process of adaptation to new sys-
tems superseding age-old practices will
not be unduly protracted or painful.”
So, a change in the old colonial prac-
tice can be expected although it may not
happen as soon as some would expect.
Unless, of course the prime minister vig-
orously pushes for it. The UPA had also
mooted changing the FY. But it could
not pull it off before its second term in
office concluded.
1865: Commission
of Inquiry into Indian
accounts set up by
the British govern-
ment suggested that
Indian FY should
begin on January 1.
The proposal was
shot down since it did
not conform with the
British FY.
1900: The Welby
Commission took up
the suggestion of the
Maharaja of
Darbangha to have a
FY starting in
November or January.
It was taken up in
1913 and 1922 by the
British but not consid-
ered feasible.
1954: A resolution
supported by then
Prime Minister
Jawaharlal Nehru was
passed at the
Congress Session at
Kalyani (West Bengal)
proposing that the FY
start on July 1. The
government rejected it.
1958: The
Estimates Committee
of the second parlia-
ment recommended
starting the FY on
October 1. It was
turned down by the
government.
1966: The first
Administrative
Reforms Commission
suggested a change
in the FY. In 1969, the
government placed
the recommendations
before the National
Development Council
but it was against
any change.
1984: The finance
ministry constituted
the LK Jha Commi-
ttee to review the FY
issue. Its report, sub-
mitted in April 1985,
recommended
January 1 as the ideal
date to begin the
financial year.
Thelongandwindingroad
Changing the
financial year
has been in the
pipeline for
long. Here are a
few attempts:
Economists
BibekDebroy(left)
andKishoriDesai
havespeltoutin
detailtheneed
toshiftfrom
thepresent
budgetcycle.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

29. | INDIA LEGAL | May 8, 2017 29
the deed had been done and the Maoists
had vanished into the surrounding for-
ests. The attackers took away weapons
from the dead security men: a dozen
AK-47 rifles, light machine guns, two
assault rifles, grenade launchers and a
number of wireless sets. On March 11,
a similar attack had occurred not far
from that spot and 13 CRPF men were
killed. So the signs of a renewed regr-
ouping by the armed left-wing outfit
were there for all to see.
Sukma district in Bastar area is a
stronghold of the Maoists. Seven years
ago, in April 2010, the guerrillas killed
N April 24, Maoists car-
ried out a deadly ambush
in Sukma district of
Chhattisgarh, killing 25
CRPF men and injuring
scores of others when
they were on their way to securing a
road being constructed there. Sukma is
part of what security experts call the
“Red Corridor’’ running from Orissa
through Chhattisgarh, Madhya Pradesh
and on to Andhra and Maharashtra.
The attack took place not far from
the CRPF battalion camp at Burkapal.
Unfortunately, by the time help arrived,
76 CRPF men. Three years later, in May
2013, they ambushed a convoy of politi-
cians travelling back from a meeting in
Sukma and wiped off 28-members of
the state Congress party. Those killed
included well-known Congress leader
Vidya Charan Shukla, a former pradesh
Congress president and a tribal leader,
Mahendra Karma, as well as his son.
Both were killed brutally as they were
on top of the hit list of the Maoists as
they blamed them for a number of
vicious attacks on their cadres.
Considering the recent history of
Maoist attacks in this area, it is
Sitting
Ducks
WhileattacksbyMaoistson
securityforceshavebeen
goingonforyears,thereal
sufferersaretheAdivasiswho
arecaughtinthecrossfire
By Seema Guha
O
DEADLY BATTLE
CRPF personnel injured in
a Naxalite attack at Sukma
being taken for treatment by
a helicopter to Jagdalpur
UNI
Focus/ Sukma Massacre

30. 30 May 8, 2017
surprising that the CRPF were so care-
less. Questions have been raised about
how long it will take for them to learn
the basic lessons and why better precau-
tions were not taken. Will more and
more men walk into traps set up by the
Maoists? There is little point in blaming
the ordinary jawan. The finger must
point to the top levels of the force as
well as the home ministry.
Now that the injured have been
flown out and the dead buried, the
CRPF will be combing the surrounding
villages to ferret out the sympathisers
who gave shelter to the Maoists. When
the state police gets into action, it is
even worse. The villagers are thrashed,
the women sometimes stripped, mol-
ested and even raped and young
men, arrested.
More often after such incidents, the
youth leave the villages and hide in the
forests for fear of false charges being
slapped on them. Human rights abuses,
however, are often perpetrated by the
state police than the CRPF.
ADIVASIS ATTACKED
A People’s Union for Democratic Rights
(PUDR) report refers to a large number
of “permanent warrants’’ issued against
Adivasis. Many are declared absconders.
A rough estimate indicates that as many
as 15,000-35,000 people live under the
threat and fear of these warrants in
nearby Bijapur area alone. Many young
Adivasis, when caught, are forced to
confess that they are Maoists and then
made to surrender. It is time the local
police impressed on their bosses at the
state headquarters and in Delhi that the
tide has turned.
Though the actual culprits have fled
the scene, they know the CRPF men will
come after them seeing this carnage. In
cases like this when their colleagues are
killed, men in uniform often go berserk
and attack the villagers. This happens
across the world in all conflict zones.
The men give vent to their frustration
by turning on the villagers. It has hap-
pened in Kashmir, Punjab, Nagaland
and in Manipur.
At the heart of the problem is lack of
development. The road that the slain
CRPF men were to guard was built
with the object of making these areas
accessible. But the Maoists know that a
road will help the forces move in
faster and help them keep better vigil on
their activities.
EVERYDAY REALITY
The low intensity warfare between the
state and Maoists has been going on for
over two decades. It has been fought in
interior forest areas hidden from the
public eye. The real sufferers are the
ordinary Adivasis who are caught in the
crossfire between the police and the
CRPF on the one hand and the Maoists
who kill every suspected informer on
the other hand.
Scholar and human rights activist
Bela Bhatia said: “The smell of gunpow-
der barely reaches cities but war is an
everyday reality for Adivasis living in the
hinterland. You can imagine the plight
of people who are caught in the crossfire
between Maoists and security forces for
a decade.”
As the areas where they live are iso-
lated and rich in minerals, the Adivasis
are in constant fear of the land being
taken away from them. Ever since the
1991 economic reforms, land has been
leased to mining firms in Orissa,
Chhattisgarh and Jharkhand. Adivasis
feel they are being thrown out of their
own land when it is bought at a cheap
price from them. This fear makes many
of them support the Maoists. The UPA’s
Forest Rights Act, if properly imple-
mented, will give much needed relief to
the Adivasis.
Human rights activist Gautam Nav-
lakha endorses former Congress minis-
ter Jairam Ramesh’s suggestion for a
Astheareaswheretheylive
areisolatedandrichinminerals,
theAdivasisareinconstantfear
ofthelandbeingtakenaway
fromthem.
SOLEMN REMINDERS
Security personnel paying tributes
to CRPF jawans killed in Sukma
at Patna airport
UNI
Focus/ Sukma Massacre

31. | INDIA LEGAL | May 8, 2017 31
10-year moratorium on mining in tribal
areas. “This will bring down the level of
anxiety of local tribals that their land
and livelihoods are being snatched
from them.’’
THE ROAD AHEAD
Ramesh himself could not get this done.
It is unlikely that the BJP will agree to
it. “But this is a good way to begin buil-
ding trust,’’ said Navlakha. “Successive
central governments have failed to abide
by the 5th schedule of the constitution
as well as implementation of the Pan-
chayat (Extension to the Scheduled
Areas) Act passed by parliament in
1996. The Forest Rights Act must also
be tweaked to protect the interests of
Adivasis,’’ he said.
Navlakha believes that the Maoists
are fighting for the rights of the Adivasis
which both the Congress and the BJP
have ignored. Laws have been passed
but successive governments have found
ways to tweak them so that they can get
around them and ensure that the
exploitation continues in the
name of development.
At a time when the ruling
BJP and its large Hindutva
support base is promoting
ultra-nationalism, criticism of
state troopers fighting “enemies
of the state’’ is frowned upon.
The common perception is that
the Maoists are violent and a
danger to the Indian state. Few
give a thought to the plight of
the ordinary Adivasis who have to live
through this constant hellfire. The state
police and the CRPF are tough and so
are the Maoists. Those suspected of
being informers are killed.
Where will this end? No government
wants to talk from a position of weak-
ness. The security forces want to get an
upper hand and then begin talks with
the Maoists. But neither side seems
interested in negotiations. The mood in
the government after losing so many
men will naturally be belligerent.
Manoranjan Mohanty, a Delhi-based
sociologist, thinks it is time the govern-
ment reworks its strategy in dealing
with the Maoists.
Area domination does not work.
Trusted civil society groups can help in
getting the two sides together. Simul-
taneously, Mohanty said, the adminis-
tration must implement government
welfare schemes in Adivasi areas. Many
of the welfare measurers had worked
well. The Maoists usually do not disrupt
schemes that benefit the Adivasis. Oft-
en, paramilitary forces use the opportu-
nity to arrest alleged “suspects’’.
But is anyone ready to listen to
saner voices?
RAGING WARS
(Left) CRPF personnel with the
bodies of CPI (Maoists) members
after a gunbattle at Chipadohar
Forest in Jharkhand; (below) an
Adivasi couple in Chhattisgarh
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
wikimedia.org
UNI

32. States/ MP & Chhattisgarh/ Prohibition
32 May 8, 2017
N 1926, the US government poi-
soned liquor caskets to prevent
people from drinking when it
imposed prohibition. It lasted just
eight years and cost more than
10,000 lives. Though prohibition
has its political uses and has been tried
by several governments, it is a moot
question if it actually works. After Bihar
chief minister Nitish Kumar used the
prohibition card to win the assembly
elections in 2015, the Madhya Pradesh
and Chhattisgarh governments too are
now itching to try it out. Their respec-
tive CMs— Shivraj Singh Chouhan and
Raman Singh—have declared that their
“eventual aim is to impose prohibition
albeit in a phased manner”.
In MP, Chouhan wants no liquor
shops in villages with a population less
than 3,000. But with over 3,500 liquor
vends in the state and roughly one shop
for every 15,000 population, this target
may seem laughable. Also, with the
Union finance ministry’s insistence on
capping fiscal deficit of states to below 3
enue of about `40,000 crore.
Besides this, MP has eight breweries,
10 distilleries and 22 bottling plants
which generate employment, though the
bulk of it comes from running liquor
vends. Each shop generates direct
employment for some five persons and
indirect one for another ten, who are
engaged in selling eggs, peanuts and
empty bottles. No wonder minister
Narottam Mishra said: “Prohibition is
our aim but we have to consider several
other issues before we decide
either way.”
And though the Supreme Court ban
on liquor vends near highways led to
many of these shops being displaced
elsewhere, people had a problem mainly
with their location rather than the sale
of it. Most don’t want them in their
immediate neighbourhood, though they
are silent on the morality of it.
Consumption patterns reveal the whole
story. The annual consumption of coun-
try liquor has grown from 390 lakh
litres ten years ago to 1,200 lakh litres.
Message
in the
BottleWithelectionsinboththesestatesnextyear,
theirCMsaregearinguptoimposeprohibition
despitealackadaisicalresponsefromthe
electorateandathrivingtradeinliquor
By Neeraj Mishra
in Bhopal and Raipur
I
“Prohibitionisouraimbut
wehavetoconsiderseveral
otherissuesbeforewe
decideeitherway.”
—NarottamMishra,minster
inMPcabinet
percent of the GDP, the task may seem
Herculean for both states. To top it,
both have a similar revenue profile with
heavy dependence on excise and mining
as major income sources. So prohibition
may not be easy to impose.
EXCISE REVENUE
In MP, excise revenue stands at `16,000
crore from direct duty, auction of shops
and a fixed license fee for bars and
restaurants. It has grown at the rate of
10 percent every year since 2004. Under
Chouhan, it has increased from `4,300
crore in 2011-2012 to `18,000 crore in
2017. That is nearly half of its total rev-

33. | INDIA LEGAL | May 8, 2017 33
India-made Foreign Liquor (IMFL)
grew from 145 lakh litres per annum
during the same period to 1,100 lakh
litres. Prof SRP Tripathi, a retired pro-
fessor of economics, said: “Rising
income and general acceptance of liquor
as only a minor vice has resulted in its
rapid expansion.”
GOVERNMENT HAND
Meanwhile in Chhattisgarh, though CM
Raman Singh declared in the assembly
that prohibition was the ultimate goal of
his government, it institutionalised
liquor sales by taking over all these
shops. As soon as the excise policy was
announced in January, the state admin-
istration was geared towards finding
new shops off highways. It also trained
2,000 sales personnel to man these out-
lets and had five constables for each of
the 800 liquor shops.
The state has only two breweries and
one distiller but the consumption of
liquor of its two crore population has
gone up. Almost each of the 30,000 vil-
lages in the state has at least one home-
made plant to brew mahua, the local
country liquor. No wonder one of the
bureaucrats who was in charge of the
excise department said: “It’s very diffi-
cult to impose moral discipline on an
unwilling population.” With hardly any
opposition to liquor, the government
was forced to form a Mahila
Nashamukti Sangathan to provide some
credible moral policing. It posted ads
urging people to give up liquor.
However, both Chouhan and Raman
Singh realise that prohibition may lead
to a no-gain-despite-pain situation. But
with elections in both states next year,
they have to be seen doing something
lest the opposition take advantage of the
situation. “The free rice provided to BPL
families (a Chhattisgarh government
scheme whereby 25 kg of rice is provid-
ed to each BPL family for a token
amount of `25) has led to spare incomes
which are used to buy booze,” said TS
Singh Deo, leader of the opposition. The
Congress has promised to impose prohi-
bition if voted to power. Even former
CM Ajit Jogi’s fledgling Janta Congress
has taken up the issue. However, the
joke is that those who oppose prohibi-
tion by day derive their strength from it
in the evenings.
Liquor trade and political patronage
go hand in hand. Though liquor shops
and bars are visible, almost 70 percent
of the trade is conducted underground.
Every liquor shop pays off everybody,
from the police to the politicians on a
monthly basis. If a retailer has bought a
shop for `1 crore a year from the gov-
ernment, he has to make at least `3
crore to remain in the trade and make a
profit out of it.
In the end, both Chouhan and Singh
will have to make the uneasy choice
between losing revenue and playing the
game of one-upmanship.
THIRSTY POPULACE
(Left) A liquor shop doing brisk business in MP; (above) a haat in Orchha where
locally-produced liquor is being sold
ruralindiaonline.org
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Website: www.indialegallive.com
Contact: editor@indialegallive.com

34. States/ Kerala/Activists Attacked
CTIVISTS and protestors
in Kerala have been at
the receiving end of the
government’s ire, result-
ing in various sections of
the Unlawful Activities
(Prevention) Act (UAPA) being slapped
on them. Recently, crackdown on dis-
senters was witnessed during the
protests relating to the death of Jishnu
Prannoy, an engineering student whose
family alleges that he was murdered.
On April 5, when Jishnu’s mother
Dissent at
Your Own Peril
TheLDFgovernmenthasdrawnflakforslapping charges
againstdissenters.Aredemocraticprotestsunderthreatnow
withtheuseoftheUnlawfulActivities(Prevention)Act?
By Naveen Nair in Thiruvananthapuram
A
MYSTERIOUS DEATH
(Above) Jishnu Prannoy, an
engineering student, found
dead in Thrissur;
(right) Police forcibly
removing Prannoy’s mother,
demanding a fair probe, in
Thiruvananthapuram
Not just that, Shajahan was suspend-
ed from service on April 10 by C-DIT
where he was a scientific officer, giving
credence to allegations that the LDF
government was adopting a vindictive
attitude towards activists who supported
Prannoy's family. While the legal frater-
nity has been trying to make sense of
these charges, five activists, including
these three, were arrested and later,
released on bail.
Kaleeswaram Raj, a senior advocate
in the Kerala High Court and the
Supreme Court, said that he could find
no conspiracy angle to the April 5 inci-
dents. “Not only is there no conspiracy
which would lead to Section 120B being
imposed, there has been no crime in this
matter. It was a peaceful agitation and
these activists were extending solidarity
to the aggrieved family. We could gather
nothing from the visuals shown by TV
channels nor from the versions given by
the police present,” Raj told India Legal.
He cautioned against the misuse of
Section 120B. “If you penalise a peace-
ful agitation, whether in the guise of a
conspiracy or by using any other provi-
sions of the IPC, you are actually penal-
ising a democratic protest, which is an
and family proceeded towards the DGP’s
office with a few activists demanding
justice, the police stopped and detained
them. These included KM Shajahan, an
activist, Shajir Khan, an educationist
who spearheaded many agitations
against corrupt practices, and Khan’s
wife, Mini, a civil rights activist and
lawyer. While the victim’s family was let
off after a short detention, the three
activists were charged with Section 120
B of the IPC which deals with punish-
ment for criminal conspiracy.
34 May 8, 2017
UNI

35. he was sacked and fell out with
Achuthanandan. But Shajahan’s fight
against Vijayan continued as he became
party to the SNC Lavalin case, where
he was a petitioner against Vijayan
and continued to malign him by
raking up the ghosts of Lavalin at all
public forums.
KICKBACK ROW
The SNC Lavalin case, incidentally, was
a corruption case against Pinarayi
Vijayan when he was the power minister
in the state in the nineties. Vijayan was
accused of taking crores as kickback
from a Canadian company, SNC Lavalin.
Though the trial court exonerated him,
a CBI review petition is still in the High
Court and Shajahan is a party to the
same. “Vijayan just wants to finish me
and for that, he will go to any extent. So
this criminal charge is not a surprise.
For him, I happened to be at the right
place at the right time,’’ Shajahan
alleged to the media.
Shajir Khan, meanwhile, had been
opposing the state’s higher education
policy which he claims has always
favoured the managements of private
self-financing colleges. Even in the
Prannoy case, it was Khan who first
supported the students’ protest at Nehru
College of Engineering where Prannoy
was found dead in January.
Meanwhile, the CPI has termed the
use of UAPA and Section 120B against
the activists as draconian. “This policy is
not in line with what the Left
Democratic Front would like to follow in
Kerala. The use of such laws against
people who democratically dissent is not
in our culture and we need to stop this
forever,’’ says Kanam Rajendran, state
secretary, CPI.
It now remains to be seen whether
the reinstatement of TP Senkumar as
DGP by the Supreme Court will change
the way men in uniform deal with
activists and dissenters in Kerala.
unhealthy trend,’’ he said.
This trend of attacking civil society in
Kerala is not new nor is it surprising.
Activists say that in the last few years,
the state has booked people who dissent
under UAPA. Following widespread crit-
icism from civil society, a review com-
mittee was formed under DGP
Lokanath Behera on December 24,
2016, and the results found were star-
tling. Out of 162 cases filed since 2012,
the committee found that 42 would not
stand the test of law. Of these 42 cases,
25 were filed during the present Left
Front government’s term.
VINDICTIVE GOVERNMENT
These also include two other cases
which have caught the public’s eye. One
is the arrest of Malayalam writer Kamal
C Chavara for allegedly insulting the
national anthem in a Facebook post in
December 2016. The post was an
excerpt from his novel,
“Smashanangalude Notepustakam”,
published in 2015. He was booked
under UAPA following a complaint by a
BJP worker in Kozhikode.
The second case is against activist
KP Nadir. who was picked up from
Kannur and charged under UAPA. His
crime? He was working among the trib-
als of Wayanad and accused of being a
Maoist, though the police had to retract
that charge later. “There is a clear pat-
tern that is emerging—if you are a part
of the political set-up and have a repre-
sentation in the assembly, then you can
do anything in the name of a protest.
But if the common man raises his voice,
then the state will use all
possible force to suppress
it. What happened to
Shajahan and Shajir
Khan is a message for all
of us,’’ NM Peason, another activist, said.
Chief Minister Vijayan, meanwhile,
rubbished these allegations at a press
meet saying that if he wanted to take
vengeance against Shajahan, he would
have acted much earlier. But when
asked why a conspiracy charge was filed
against him and other activists, Vijayan
said that was something only the police
would know. For a CM who prides him-
self on ruling with an iron fist, it would
be foolishness to believe that the police
who reports to him (he is also the home
minister) would take a call without
his knowledge.
But it is no secret in political circles
that Shajahan was a thorn in the flesh of
Vijayan. Shajahan, in fact, was the for-
mer personal secretary to VS
Achuthanandan, when he was the CM
of the previous LDF government. But
more than that, Shajahan was a foot sol-
dier whom Achuthanandan used for
politically attacking Vijayan during the
days when their rivalry was at its peak.
Following revelations of Shajahan
leaking inside information of the party,
“Thereisaclearpatternthatis
emerging—ifyouareapartofthe
politicalset-up,thenyoucando
anythinginthenameofaprotest.
Butifthecommonmanraiseshis
voice,thenthestatewilluseall
possibleforcetosuppressit.”
—NMPeason,anactivist
STATE VS ACTIVISTS
(L-R) Chief Minister Vijayan;
Shajir Khan, who has
spearheaded many
agitations against
corruption in
education, is among
those targeted
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| INDIA LEGAL | May 8, 2017 35