India Legal 09 October 2017

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Nirbhaya Fund:
Criminal Lapse
Courts: Adjournment
Disease
October9, 2017
Thepoliceassaultonthewomen-ledstudenteruptionhasinvitedwidespreadcriticismand
highlightedgrowingdiscontentoverauthoritarianismand administrativebunglingonthe
renownedcampussituatedintheprimeminister’sconstituency
PLUS:LAWCOLLEGESONTHEBOIL
h lli lt th ll dd t d t ti h i it d id d iti i d
CALLOUS
CRACKDOWN
BANARAS HINDU UNIVERSITY

ustice Karanam Sreedhar Rao has rightly
focused attention in his column in this
issue of India Legal on the malignancy
that has metastasised throughout our
judicial system. It is an affliction known
as pendency, a fancy word for interminable
delays in the delivery of justice in both civil and
criminal cases. Supreme Court Chief Justice
Dipak Misra recently attributed this to what he
called the “adjournment disease”. He was refer-
ring to a major flaw in the system which allows
lawyers and judges and litigants to play fast and
loose with it by escaping hearing dates when
convenient, or using procrastinating tactics to
defer ongoing cases to future dates.
One painful example is of a company petition
in the Karnataka High Court that is awaiting
admission since 1985! Rao notes: In the
Calcutta High Court, a civil suit is pending since
173 years. It was filed prior to the establishment
of the Calcutta High Court 144 years ago. There
are nearly 2.96 crore cases pending in subordi-
nate courts and 5,000 judges are needed to
tackle the pendency. In the High Courts,
31,16,492 civil cases are pending, out of which
5,98,631 go back over a decade; and 10,37,465
criminal cases are pending of which 1,87,999
have crossed the 10-year mark.
Statistics are easy to gloss over, just so
many numbers. But if you give a human
face to every one of these numbers, you
will see that this situation is not only
tragic but also a damning indict-
ment of the working of our consti-
tutional government. The funda-
mental principle of the Rule of Law
is to ensure speedy justice to all who
need it. But the system seems unable or
simply refuses to deliver it.
Astonishingly, the malady has not been
impervious to diagnosis and remedial pre-
scriptions from government and the judges
themselves. But the sickness refuses to go
away. Analyses and recommendations are
simply stuffed into bureaucratic drawers and
forgotten. Law commissions have come and
gone, judgments have been penned and deli-
vered, but the harrowing, soul-destroying
delays go on forever.
The adjournment disease, an important
contributor to the larger affliction, is not the
only ailment that plagues the system. The Law
Commission of India in its 77th report submit-
ted about 40 years ago mentioned frequent
adjournments as an important cause of delay.
Though the Code of Civil Procedure provides
that “no such adjournment shall be granted
more than three times to a party during hea-
ring of the suit”, Indian courts appear to pay
scant heed.
M
ost people will be startled to learn
that this scourge was present even in
pre-Independence British India. Some
of the high-level groups which investigated the
causes include the Rankin Committee (1924); a
High Court Arrears Committee under the chair-
manship of Justice SR Das (1949) and a com-
mittee under Chief Justice Hidayatulla (1969).
The work of this last committee was extended
and later chaired by Justice Shah in 1972. It was
known as the High Court Arrears Committee.
The collective findings of various commis-
sions and committees are well summarised by
the International Journal of Legal Develop-
ments and Allied Issues (Volume 2 Issue 6). The
major factors as spelled out in this illuminating
study are:
Vacancies in Judiciary. From the Supreme
Court downwards, the entire system is riddled
with this deficiency. Part of it has been caused
by the Executive-versus-Judiciary tussle over the
Collegium-National Judicial Appointments
Committee (NJAC) imbroglio. The stalemate
was best summed up by former Chief Justice TS
Thakur: “Vacancies in the judiciary, especially
state High Courts, have become a national chal-
lenge, and efforts were being made to persuade
MORE THAN JUST AN
ADJOURNMENT DISEASEInderjit Badhwar
Letter from the Editor
J
4 October 9, 2017

the government to expedite the matter. We have
been talking very often about pendency of cases
in the courts.”
Inadequate number of courts. The Law
Commission of India in Report No 245 deals
with the establishment of additional courts in
elimination of delay and speedy clearance of
matters. In fact, Imtiyaz Ahmad v State of UP
specifically gave directions for creation of addi-
tional courts.
Judicial officers unable to tackle cases
involving specialised knowledge. Lack of spe-
cialised knowledge on the part of judges directly
impacts the justice delivery system. With the
advancement of science and technology, many
new offences such as cyber pornography and
cyber stalking have emerged.
Abuse of Public Interest Litigation. Under
the guise of PILs, petitioners often seek to pro-
mote private or political vested interests, caus-
ing consequent delays. For this reason, Justice
Bhagwati cautioned against misuse of PILs in
the landmark judgment Janata Dal v HS
Chowdhari.
Lack of adequate arrangements to monitor,
track and bunch cases for hearing. This inade-
quacy leads to an incalculable waste of time.
Added to this is the frequent transfer of judges
which retards the justice delivery system. Often,
with no continuity available following a transfer
or a bench-change, a new judge orders a de
novo trial in which the wheel has to be re-
invented at the cost of an enormous delay.
Role of administrative staff of the court. If
court babus under-perform or are derelict in
their duty, they contribute to hampering a
speedy trial. In addition, a large number of
appeals also impede speedy disposal of cases
| INDIA LEGAL | October 9, 2017 5
Photos: Prashant Panjiar
Statisticsareeasy
toglossover,just
somanynumbers.
Butifyougivea
humanfaceto
everyoneofthese
numbers,youwill
seethatthissitua-
tionisnotonly
tragicbutalsoa
damningindict-
mentofthework-
ingofourconstitu-
tionalgovernment.

Lackofspecialised
knowledgeonthe
partofjudges
directlyimpacts
thejusticedelivery
system.Withthe
advancementof
scienceandtech-
nology,manynew
offencessuchas
cyberpornography
andcyberstalking
haveemerged.
because the courts are busy in disposal of the
appeals backlog.
Delay in serving of summons. People are
naturally inclined to avoid summons. Add to
this the lack of qualifications or knowledge of
process servers, their negligence and lethargy.
Very often, they fail to serve the summons in
time, and are virtually free of proper supervi-
sion.
Delay in filing written statement. The law
provides that “defendant should file written
statement within 30 days from the date of serv-
ice of summons on him”. But this provision is
not followed in true letter and spirit. Defendants
tend to prolong the matter.
Non-appearance of parties on the day fixed
for hearing. The provisions of CPC state that if
both parties don’t appear on the day fixed for
hearing, the suit can be dismissed. Consequen-
tly, a plaintiff may file a fresh suit or the court
may restore it.
Non-compliance by judges of laid-out proce-
dures. Trial judges often do not read in advance
the pleadings of the parties. This leads to inordi-
nate delays in framing the issues and proceed-
ings in a proper and timely manner.
Delay in investigation. In criminal cases, the
role of the police is significant in the speedy
disposal of cases. If a police officer completes his
investigation in time, it will speed up the justice
delivery process. This rarely happens. And
delays in filing the charge sheet or the comple-
tion report hamper speedy trials.
Excessive Cross-examination. The Law
Commission’s 77th report states that “sometimes
questions are put to the witnesses in cross-
examination which are unnecessary, slanderous
and harassing. It is on such occasions it becomes
necessary for the trial judge to control the pro-
ceedings”. The Indian Evidence Act also pro-
hibits asking indecent and scandalous questions.
The courts are also directed to forbid questions
which intend to annoy or insult. Further, the
Code provides that questions should not to be
asked without reasonable grounds. Such unne-
cessary questioning wastes the time of the court.
The role of a judge is extremely pertinent in
supervising cross-examination.
Practice of taking on a large case load.
Scheduling too many cases on a day is not desir-
able if there is no reasonable chance of their
being taken up for hearing. The Law Commi-
ssion observed: “In the matter of controlling
the case diary and in fixing cases for each work-
ing day the trial judges discharge a very impor-
tant duty. There is a tendency on the part of
presiding judges to leave the matter of fixing
dates to their readers and sheristadars (subordi-
nate officers).”
I
n 2008, Common Cause, an NGO founded
by HD Shourie, filed a writ petition before
the Supreme Court in which it sought
redressal for crores of Indian citizens “who are
routinely denied justice because of its delayed
and therefore, ineffective dispensation. It is to
restore to them their fundamental and constitu-
tional rights guaranteed under Articles 21, 14, 19
and the Preamble, and to enforce the constitu-
tional obligations of State under Article 39A of
the Constitution of India…. As a consequence of
this, the petitioners fear that there has been a
loss of public confidence in the judiciary, and an
increasing resort to lawlessness and violent
crime to settle disputes.”
The petitioners stated that their motive in
going to the apex court was to ensure that “pub-
lic confidence in the judiciary (is) restored
immediately, in order to arrest and reverse this
negative trend”. The petitioners reiterated that
over the past half century, various authorities
such as the Law Commission, benches of the
Supreme Court, eminent lawyers and judges,
had identified problems in the judicial system,
Letter from the Editor
6 October 9, 2017
LITANY OF CASES
The humongous stack of
files is indicative of the
burden of litigation the
Indian courts have to
grapple with

reasons for delay in the dispensation of justice
and specific measures to overcome delays and
expedite the disposal of cases.
The petitioners reminded the Court that the
Supreme Court had recognised these problems
and taken several initiatives such as passing
directions in All India Judges Association
(2002) 4 SCC 247 to increase judge-strength
five-fold, to fill up existing vacancies by 2003, to
create ad hoc posts and commensurate infra-
structure by 2007, and yet these directions still
awaited implementation.
The Court had also passed directions in Sal-
em Advocate Bar Association, Tamil Nadu Vs
Union of India (UOI), (2005) 6 SCC 344,
P Ramachandra Rao (2002) 4 SCC 578, Sham-
bhu Nath (2001) 4 SCC 667, and Hussainara
Khatoon, 1980 1 SCC 93, to strictly adhere to
procedural laws laid down in the Code of Civil
Procedure (CPC) and the Code of Criminal
Procedure (CrPC) respectively, in order to
ensure effective and timely disposal of both civil
and criminal matters. “Yet many of these direc-
tions are not taken seriously, with the result that
justice is delayed and denied to litigants. The
Parliament has also, enacted several laws
including amendments in the CPC 2002, and
the CrPC through new or revised sections to
streamline and rationalize procedures. The
aim today, is to merely achieve strict imple-
mentation of directions and laws already laid
down. Today therefore, the petitioners merely
seek implementation of past directions by this
Court and of laws that have already been enact-
ed by Parliament
“Many cases in India take up to 10 years for
disposal and usually take far longer than the
stipulated 6 months or 2 years for trials, result-
ing in enormous pendency. The pendency of
cases in India, was about 3 crores in 2007.
Although justice is meant to be ‘simple, speedy,
cheap, effective and substantial’, yet it remains
elusive to Indians, and one of the major reasons
are these delays in the dispensation of justice.”
This was stated by the petitioners a decade
ago. The figures have not changed much since
then. The effective implementation of many
such recommendations is still pending, proving
the adage that in India the more things change,
the more they remain the same.
PAINSTAKINGLY SLOW
Lawyers mull over cases (left) as litigants
wait for their turn in an open courtyard
(above) at Patna High Court
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ContentsVOLUME. X ISSUE. 47
OCTOBER9,2017
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Technical Executive Anubhav Tyagi
BHU: Hard Lessons
The police crackdown on the women’s agitation highlights growing anger over authoritarian-
ism and administrative bungling on the premier campus of Banaras, the PM’s constituency
16
LEAD
Law Schools Turn Battlegrounds
The campuses of some premier universities have descended into chaos as students fight it
out with the managements over funding, administration and faculty
22
Who Cares for Women’s Safety?
As the bench widened the scope of a petition seeking to curb offences against them, the
shocking under-utilisation of the Nirbhaya Fund comes under the scanner
SUPREMECOURT
26
8 October 9, 2017

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Followuson
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside .........................10
Delhi Durbar ...................11
Courts.............................12
Briefs........................14, 48
Media Watch ..................49
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Cover Photo: GETTY IMAGES
Media, Judge
Thy Own
The press’ reluctance to condemn
a journalist for his mortifying
tweets on the prime minister’s
birthday exposes its double
standards and lack of courage
40
Crisis of Credibility
The Supreme Court collegium is under fire for transferring Justice
Jayant Patel to the Allahabad HC, seen as a demotion
36
FOCUS
Slaves in Our Midst
Such is the lack of concern for bonded labourers that despite a law mandating a
compensation of up to `3 lakh for them, no one has received the amount
42
RIGHTS
MYSPACE
Retrograde Jurisprudence
Two recent rape verdicts have been criticised for referring to the
victims’ character and the lack of a definite “no” from their side
30
COURTS
That’s the letter that sums up what’s hap-
pening in the US under the Trump presi-
dency. It is also the highest grade one
can give for his performance
GLOBALTRENDS
46D Is for The
Donald
Three for Sorrow
While two MP judges have been sacked for breaching the
two-child norm, many more like them are allegedly in service
34
The Adjournment Malady
Urgent efforts have to be made by judges and lawyers to speed
up disposal of cases in order to shore up the judiciary’s image
COLUMN
38

10 October 9, 2017
“
RINGSIDE
A hard landing appears inevitable. Bluff and
bluster is fine for the hustings, it
evaporates in the face of reality. The prime
minister claims that he has seen poverty from
close quarters. His finance minister is work-
ing over-time to make sure that all Indians
also see it from equally close quarters.
—Finance Minister during NDA-I,
Yashwant Sinha, on the state of Indian economy today,
in The Indian Express
Don’t blame us for
Haqqanis or the Hafiz
Saeeds. These were the
people who were your dar-
lings just 20 to 30 years
back. They were being
dined and wined in the
White House and now you
say go to hell Pakistanis
because you are nurturing
these people.
—Foreign Minister
Khawaja Asif, addressing
the US during the 72nd
session of UN General
Assembly in New York
I support the vice chan-
cellor in this matter
because it looks like a
naxalite movement, whi-
ch means they wanted to
enter the vice chancellor’s
office and there they
would have conducted
violence.
— BJP leader Subraman-
ian Swamy, on the unrest
in the BHU campus,
speaking to ANI
I may not agree with
their ideologies, but I
respect those who
believe in their ideolo-
gies. In politics, it is
not opposing ideologies
that is the problem, but
the absence of it.
—Union Minister
Nitin Gadkari, at the
Townhall event organ-
ised by The Week and
Mojo in Delhi
You derived immense
pleasure in ridiculing
other political parties
and their leaders,
but when tables are
turned on you, police
force is being asked
to intervene.
—Shiv Sena leader Raj
Thackeray, criticising
the BJP for spreading
hatred and misinforma-
tion on social media, in
a Facebook post
The grand coalition has
been voted out. This gov-
ernment has been unelect-
ed, and you, chancellor,
are the biggest loser.
—Michael Schultz of SPD,
hitherto the partners of
Angela Merkel’s party CDU,
on German election results
in which Merkel’s CDU
returned to power with a
reduced 33 percent vote, in
Deutsche Welle
The most difficult job in
India is to be an honest
politician. An honest
politician suffers the most
and I have experienced it.
—Congress vice-president
Rahul Gandhi, interacting
with a group of entrepre-
neurs in Rajkot during his
Gujarat tour

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
ECONOMY
DICTATES
POLITICS
While the law ministry is formulating a new
law to ensure that Aadhaar data is secure,
bureaucrats involved with the exercise have
been collecting complaints against the UID
card. Among them is one from Shailesh
Gandhi, former Central Information
Commissioner. His thumbprint was not
found to be authentic by the system to vali-
date his Aadhaar identity from the database
when he filled forms at his bank! Similar
complaints have apparently surfaced from
across the country leaving many in the law
ministry to wonder if biometric data had
been accurately recorded in the first place. In
which case, would it have to be recorded all
over again? Perhaps, the UIDAI bosses need
to provide an explanation
That the government is wor-
ried about the downturn in
the economy was reflected in
the BJP’s massive National
Executive meeting staged
last week in the capital. It is
normally attended by mem-
bers or special invitees but
this time, all elected repre-
sentatives of the party, 1,400
MLAs, 337 MPs and MLCs
from all states were called
and told to focus on eco-
nomic issues when they
return to their respective con-
stituencies or assembly
seats, to counter the attacks
by the Opposition. The key
issues they were told to
focus on was the anti-corrup-
tion drive, pro-poor measures
like distribution of LED bulbs
to cut down power bills, the
`16,000 crore outlay to pro-
vide power to every village
for free. They were told to
focus on economic stimu-
lants being prepared by the
newly-formed Economic
Advisory Council and the
positive impact of reforms
like demonetisation and GST
that will be reflected in the
coming months when the
economy recovers.
Call it superstition, past experience or sheer
coincidence, but Prime Minister Narendra
Modi seems to have taken a liking to offi-
cials who are named Rajiv or Rajeev. The
former Union Secretary Finance and later
Home, Rajiv Mehrishi, who retired last
August, has just been appointed as
Comptroller and Accountant General of
India (CAG), a post that is on par with a
judge in the Supreme Court. His replace-
ment as Home Secretary was also a Rajiv,
as in Rajiv Gauba. Another key position,
head of the Intelligence Bureau, also hap-
pens to be a Rajiv (Jain). Last week, follow-
ing the shakeup at Niti Aayog, the task force
set up to provide a major thrust to job cre-
ation is headed by the think-tank’s vice-chair-
man, Rajiv Kumar. Another key task force
member is Rajeev Kher, former Secretary,
department of Commerce. For those who
say what’s in a name, here’s the answer.
These are taxing times, quite literally. It is
now an established trend for critics of this
government to suddenly receive income-tax
notices or worse, raids by IT officials. NDTV
was the classic example, but there have
been others, and now we have one more,
Harsh Mander, the well-known human rights
activist and former bureaucrat. Less than a
week after he launched a campaign,
Karwan-e-Mohabbat, to show solidarity with
victims of communal violence across India,
he was slapped with an income-tax notice
for the think-tank he runs, the Centre for
Equity Studies. A day before the notice,
Mader was scheduled to pay homage at the
site where Pehlu Khan had been lynched by
gau rakhsaks, a move that the Bajrang Dal,
Hindu Jagran Manch and VHP vociferously
opposed. Rakesh Sinha of the RSS had also
gone on a news channel to claim that
Mander was anti-RSS and said on air that
the funding of Mander’s organisation would
be investigated. The IT notice arrived four
days later.
TAXING TIMES
IDENTITY CRISIS
POWER OF A NAME

BSP MLA from Mau Sadar in UP, Mukhtar
Ansari has been acquitted in a double
murder case due to lack of evidence. A local
court in Mau also acquitted seven others in
the case, while convicting three
others—Raju Kannojia, Amresh
Kannojia and Arvind Yadav—to
life imprisonment. At the time of
acquittal, Ansari was lodged in
Banda district jail.
The case pertains to the
murder of a contractor, Manna
Singh, who was attacked in City
Kotwali police station area of
Mau district when he was travel-
ling in his SUV with his associ-
ate, Rajesh Rai, on August 29,
2009. While Manna Singh died
on the spot, Rai succumbed to
injuries after two months.
The police filed a chargesheet against 11
persons, including Ansari. He had allegedly
got Manna Singh killed because of his refusal
to give Ansari a commission in a contract.
Though Ansari has been acquitted in this
case, he has other cases pending against
him and will remain in jail.
The Delhi High Court
ordered Delhi University
to admit a general category
student, Manmeet Kaur
Sareen, to the LLB course at
Law Centre 2, as a sched-
uled tribe (ST) seat was
going vacant. The order was
passed by Justice Indermeet
Kaur. Manpreet had scored
231 marks, securing 1,342
position, whereas the last
cut-off in the general catego-
ry was 233.
She had
approached
the High Court
with a plea
that as some reserved cate-
gory seats were going
vacant, she should be given
admission. Delhi University,
while informing the Court
that there were 14 vacant
seats in the three law cen-
tres, cited rules which said
that vacant seats could nei-
ther be carried forward to
the next year nor converted
to general category.
But the judge observed
that justice would not be
served if an available seat
went vacant.
Honeypreet's
bail plea rejected
Courts
The Delhi High Court dis-
missed an anticipatory bail
petition of Honeypreet Insan,
adopted daughter of Dera Sacha
Sauda chief Ram Rahim.
Honeypreet, who has been
charged with inciting violence
after Ram Rahim’s arrest, has
been evading arrest.
Ram Rahim had been sen-
tenced to life imprisonment in
two rape cases, and there was
widespread violence in Sirsa
district, where Dera Sacha
Sauda has its headquarters,
and Panchkula, where the sen-
tence on Ram Rahim was
passed by a special CBI court.
It’s alleged that Honeypreet had
instigated the violence following
the sentence.
Rejecting the bail plea,
Justice Sangita Dhingra Sehgal
said the intention behind filing
the plea in Delhi was to delay
proceedings in a Panchkula
court. Justice Sehgal added that
“the easiest way out is that you
surrender”. The counsels for
Delhi and Haryana police also
opposed the bail plea, pointing
out that she was trying to hood-
wink the court by giving a wrong
address of a Delhi property.
12 October 9, 2017
“Give ST seat to general
category student”
The case of 10-year-old rape survivor who
had delivered a baby took a new turn
when the member secretary of the Chandi-
garh State Legal Services informed the
Supreme Court bench of Justices Madan B
Lokur and Deepak Gupta that the DNA sam-
ple of the child did not match that of the
accused. The rape survivor had delivered a
baby after being denied permission to abort
the fetus as it was more than 20 weeks. The
member-secretary informed the Court that
another person had now been arrested and
his sample sent for forensic examination to
two different labs.
The Court requested the laboratories to
expedite the process of the test report.
DNA mismatch
— Compiled by Meha Mathur
Mukhtar Ansari
acquitted

Briefs
Senior advocate and founder of
Human Rights Law Network,
Colin Gonsalves, has been awar-
ded the 2017 Right Livelihood
award. The announcement was
made at the International Press
Centre at the Swedish Ministry for
Foreign Affairs by Ole von Uexkull,
executive director of the Right
Livelihood Award Foundation, and
Maina Kiai, jury member and for-
mer UN special rapporteur on the
right to freedom of peaceful
assembly and association.
According to the press release
of Right Livelihood Award
Foundation: “Colin Gonsalves is
recognised by the jury for his tire-
less and innovative use of public
interest litigation over three
decades to secure fundamental
human rights for India’s most mar-
ginalised and vulnerable citizens.”
Gonsalves is a graduate of the
Indian Institute of Technology,
Bombay, and switched to law and
enrolled at the Bar in 1982.
Colin Gonsalves wins
Right Livelihood Award
—Compiled by India Legal Team
EDattachesKartiChidambaram’sassets
Central government doctors to retire at 65
Small enterprises, which
are facing difficulty in
complying with the proce-
dures linked to invoice and
returns under the Goods
and Services Tax Act, should
be allowed to file quarterly
returns while the tax pay-
ment may be monthly, West
Bengal Finance Minister
Amit Mitra has said.
In a letter to Finance
Minister Arun Jaitley,
Mitra mentioned the diffi-
culties being faced by ex-
porters and asked him to
consider changes in the new
refund rules.
“For those having a
turnover not exceeding `75
lakh, we need to bring in a
concept of quarterly return,”
Mitra wrote. He added:
“Further, these
taxpayers may be
allowed to raise a
single invoice or
bill for both
exempted and
taxable supplies.”
Mitra, who was
chairman of the
empowered com-
mittee of finance
ministers, has
urged Jaitley to issue cor-
rective measures to protect
small and medium enter-
prises even as several
segments of the export
sector are experiencing
a slowdown.
The Enforcement Directorate has
attached `1.16 crore of assets
related to Karti Chidambaram. In
a statement, the agency said that
Karti’s father and former finance
minister, P Chidambaram, had
“bypassed” rules to approve a 2006
Maxis-Aircel investment deal dur-
ing his tenure.
Chidambaram, however, said
that the accusations were a “crazy
mixture of falsehoods and conjec-
tures”, and that the ED’s press note
was intended to “intimidate” him.
In the press note, the ED said that
the finance minister was competent
to accord approvals to proposals of
up to `600 crore, but Chidam-
baram cleared the `3,500 crore deal
bypassing the Cabinet Committee
on Economic Affairs by showing it
as an `180 crore investment.
The agency said that a company
promoted by Karti and a nephew
of P Chidambaram received approx-
imately $2,00,000 from a Maxis
Group company for a legal compli-
ance software.
“Let small traders file
quarterly returns”
14 October 9, 2017
The retirement age of
central government
doctors has been raised
from 60 to 65 years. Law
and Justice, and Infor-
mation Technology
Minister Ravi Shankar
Prasad said the decision
was taken at a cabinet
meeting presided over by
Prime Minister Narendra
Modi. The move follows
the government’s earlier
one in July of raising the
retirement age of medical
officers working in central
armed forces like the
CRPF and BSF to 65
years. The superannuation
age of specialist medical
officers of the central
armed police forces and
Assam Rifles has also been
increased from 60 to 65
years. However, the new
age-limit will not apply to
Central Health Service
doctors. The decision is
aimed at addressing the
shortage of doctors.

Lead/ Campus Unrest/ Banaras Hindu University
16 October 9, 2017
Hard LessonsHowdidoneofIndia’spremieruniversitiesdescendsoquicklyintochaosandviolence?
Acomprehensiveanalysisofwhatwentwrongandwhoisresponsibleforthemess
By Puneet Nicholas Yadav

HERE are many ironies
about the events that
unfolded in Banaras Hindu
University (BHU) over the
past week. That the police
companies—largely com-
prising male personnel —stormed into
the BHU campus and its girls’ hostels to
mercilessly beat up students and at least
two lady wardens a day after the PM’s
aborted attempt of visiting the varsity
T
WHAT WOMEN WANT: (Left) Girl students of
BHU confront the police force following an
incident of molestation on the campus;
(above) Congress and Swaraj Abhiyan
activists assemble at Jantar Mantar in Delhi
to condemn the lathi-charge at BHU
campus from where he and his party
began their victory march at the hus-
tings, is only one such irony. That the
incident happened in the Lok Sabha
constituency of a PM who never tires
of hammering the nation’s electorate
with his Beti Bachao, Beti Padhao slo-
gan is another.
The police brutality against the girl
students of BHU isn’t just about the
ironies. It is indicative of a much larger
problem—turning institutions of learn-
ing into personal fiefdoms for the spread
of regressive ideologies. At the core of
the crisis lies the suppression of individ-
ual and collective freedoms that are the
hallmarks of any modern university.
THE GENESIS
On the face of it, the recent goings-on in
BHU seem like a simple case of admin-
istrative failure. A girl is allegedly mol-
ested and files a complaint. Several
other girl students claim that there are
frequent incidents of sexual harass-
ments on the varsity campus. The girls
raise obvious demands—the vice-chan-
cellor should listen to their grievance,
more CCTV cameras and better street
lighting should be installed in the
campus. The vice-chancellor, Girish
Chandra Tripathi in this case, doesn’t
bother listening to the complaints and
when the girls persist with their
protests, the might of the police is
unleashed on them.
In the meanwhile, reports of institu-
tionalised gender-discrimination, ques-
tionable appointments to key posts in
the varsity—including that of a rape
convict being made the varsity hospital’s
medical superintendent, etc. begin to
tumble out. The V-C decides to dig in
his heels claiming he has done no
wrong, dismisses a case of molestation
as “simple eve teasing”, terms the protest
as the handiwork of “outside, anti-social
elements”, and suggests that he “can’t
listen to every girl on the campus”.
Getty Images
UNI

Tripathi told APN, a sister concern of
India Legal: “I have always listened to
the grievances of the girl students but it
is not possible to listen to what every
girl says. We have close to 40,000 stu-
dents living inside the BHU campus but
there are also nearly one lakh outsiders
who come to the campus or stay in and
around it. The campus is spread across
1,300 acres. I have spoken to the girl
who had filed the molestation complaint
and to others who have reported about
incidents of eve-teasing and even these
girls do not agree with the kind of
protest that is being witnessed in the
university campus.”
Nonetheless, his lack of any action
regarding the molestation case on his
campus could make him complicit in
this crime.
The situation has continued to wors-
en. The varsity’s chief proctor, Onkar
Nath Singh, was made to take moral
responsibility and resign. The first-ever
woman chief proctor—Royana Singh—
was appointed a day later. The Union
human resource development ministry
began leaking reports that the V-C will
retire as scheduled, on November 27,
but may be asked to “go on a long leave”
until then.
This pretty much sums up the events
of the past week at BHU. But dig just a
little deeper to find out how things were
allowed to reach such a pass and the
real story begins to unravel.
DEGENERATION OVER TIME
Professor Dipak Malik, former director
of BHU’s Gandhian Institute of Studies,
believes that the events that unfolded at
the central university last week were
“the result of a natural progression of
the degeneration that had begin to set
in decades ago”.
While Malik says that “the immedi-
ate problems that one sees in BHU are
largely the result of the manner in
18 October 9, 2017
“BHUhasseenallits
democraticbodiessys-
tematicallydemolished
overthepastfew
decades.Thereisno
students’unionor
teachersassociationfor
checksandbalances.”
—ProfDipakMalik,
ex-director,Gandhian
InstituteofStudies,BHU
“Theadministrationand
theV-Csimplydon’tcare
aboutthestudentsany-
more.Theywantgirlsto
staylockedupintheir
hostelswhilelumpen
elementsareallowedto
runriotinthecampus.”
—KashinathSingh,
formerprofessorofHindi
literatureatBHU
“Ihavealwayslistened
tothegrievancesofthe
girlstudentsbutitis
notpossibletolistento
whateverygirlsays.We
havecloseto40,000
studentslivinginside
thecampusbutthere
arealsonearlyonelakh
outsiders.”
—GCTripathi,V-C
E
stablished in 1916 by Hindu
Mahasabha leader Pandit Madan
Mohan Malaviya, Banaras Hindu
University (BHU) is among the world’s
largest residential campuses with nearly
40,000 students staying inside a sprawl-
ing 1,300-acre area.
A central university, BHU attracts stu-
dents from across the country and
serves as one of the main educational
institutions in Purvanchal. It has a `760-
crore annual budget and boasts of 14
faculties, 140 departments and six insti-
tutes, including an Indian Institute of
Technology.
However, instead of adopting the cel-
ebrated ethos of Banaras—one of the
world’s oldest cities to have been con-
tinuously inhabited—the varsity has
been criticised for promoting gender
discrimination, casteism and regional-
ism. This, even as the University can
boast of reflecting the same diversity as
the city which gives the institution its
name. In BHU, one sees students from
nearly all regions, castes and linguistic
groups. Yet, in recent years, the varsity
has attracted criticism which it did dur-
ing the early years it was founded—alle-
gations of pandering to a patriarchal
mindset, promoting Brahmins and
Thakurs over students of other castes
and favouring people from UP—espe-
cially Allahabad—in appointments.
The University, which had RSS
founding member MS Golwalkar as its
student and later also a faculty member,
has in recent years had senior staff
members—including current vice-
chancellor GC Tripathi—openly flouting
their RSS links.
The BHU V-C seems to have repeat-
edly endorsed the institution’s discrimi-
natory practices that prevent girls from
seeking equal opportunities as boys.
Tripathi seems unwilling to acknowledge
incidents of sexual harassment—includ-
BetrayalofHistory
The ancient city associated
with religious fervour has also
witnessed regressive trends

which the current V-C, who closely
subscribes to the regressive and patriar-
chal ideology of the Sangh Parivar, has
been running the varsity’s affairs”, he
also insists that “the rot had set in
much earlier”.
“Unlike institutions like the Jawahar-
lal Nehru University or the Delhi Uni-
versity, BHU has seen all its democratic
bodies systematically demolished over
the past few decades. There is no stu-
dents’ union, no teachers association to
maintain checks and balances. The writ
of the vice-chancellor and his/her politi-
cal masters sitting in Delhi (the BHU
V-C is appointed by the centre through
the HRD ministry) runs large,” says Prof
Malik, whose association with BHU
dates back to nearly five decades.
BHU alumnus Shatrudra Prakash,
who is also a Member of the Legislative
Council (MLC) from the Samajwadi
Party, blames the entire episode on vice-
chancellor Tripathi and the “patronage
he receives from the BJP and RSS”.
He says: “Ever since Tripathi took over
as V-C, he has handed over the running
of the university to a coterie of Brah-
mins and people from Allahabad
(Tripathi’s native place) who also sub-
scribe to his narrow-minded ideology
which he has imbibed from the Sangh
Parivar. The proctoral board is full of
people handpicked by the V-C on the
basis of their caste, affiliation with the
RSS and BJP or those who belong to
Allahabad. As many as 400 posts in the
varsity have been outsourced to non-
BHU staff by Tripathi”.
Prakash says that while the V-C had
blamed “BHU outsiders” for last week’s
violence, “it is actually Tripathi who gave
free access to non-BHU faculty and stu-
dents to enter the university campus”.
The senior SP leader alleged that in the
past two years, incidents of eve-teasing,
molestation and harassment had shot
up within BHU and that “those involved
in these activities are mostly outsiders
who continue to come to the campus as
and when they wish”.
Prakash’s allegation is backed by at
least five girl students that India Legal
spoke to. “There have been at least 20
cases of eve-teasing on the campus over
the past two months and our repeated
efforts to get the V-C to act on these
complaints have been futile. Instead,
restrictions are imposed on us. Girls
aren’t allowed to stay out of their hostel
beyond 8 pm (6 pm in case of some hos-
tels). While boys are allowed to have
non-vegetarian food in their hostels,
girls have to stick to vegetarian food. We
can’t use our mobile phones after 10 pm
and, if caught doing so, then we are
made to put our phones on speaker
mode,” says Pratyusha (name changed),
a resident of the Triveni hostel complex.
Girls at the varsity also claim that if
members of the BHU proctoral board
do agree to listen to complaints of sexu-
al harassment or eve-teasing, the griev-
ance-redressal forum often turns into a
platform for shaming victims. “The only
job of the proctors—who have an
ing molestation of a girl. He dismissed
these as “simple eve-teasing”, something
that under the Indian law, post the Nir-
bhaya guidelines against sexual harass-
ment and violence, can be construed as
complicity in hushing up a crime against
a woman.
Through more than 4,000 years of its
documented history, Banaras has always
been hailed as a microcosm of civilisa-
tion. Its relevance in Hindu mythology as
the city founded by Lord Shiva, the land
of Raja Harishchandra’s sacrifice or its
connection with the sacred River Ganges,
are often talked about. The fact that it is
here that Gautam Buddha is said to have
delivered some of his earliest sermons or
that Guru Nanak came here during his
quest for founding Sikhism are all well-
documented. Yet, all this seems to be lost
on the BHU of today.
UP accounts for sending the largest
number of prime ministers to parliament,
but this is the first time that one has been
elected from Varanasi. As the University
descended into anarchy last week, Prime
Minister Narendra Modi—who had kick-
started his election campaign in April
2014 from the Lanka Gate of BHU—
was prevented from visiting the
Durgakund temple in the campus. His
route was diverted when he arrived in
the city a day before lathis rained on
the varsity’s girl students. This speaks
volumes about the chaos that BHU has
found itself mired in.
—Puneet Nicholas Yadav
GATEWAY TO THE PAST: The entrance to
BHU campus, which had an illustrious past
but now courts controversies
wikimedia/ kuber patel

the first time in the 100-year history of
BHU that girls have risen up in protest
against injustice meted out to them.
The administration and the V-C in par-
ticular simply don’t care about the
students anymore. They want girls to
stay locked up in their hostels while
lumpen elements are allowed to run
riot in the campus.”
Professor Singh adds: “The V-C is
petty minded, has no vision for the
institution and is known for pandering
to the whims of the RSS. He has been
building his personal fiefdom, appoint-
ing people to key posts not on their
merit but because they are Brahmins
or hail from his native town of Alla-
habad or have connections with senior
BJP leaders.”
Endorsing the claim made by BHU
students who called the resignation of
chief proctor ON Singh a “farce”, Pro-
fessor Singh says: “The moral responsi-
bility for the incident rests with the V-C
and he should have resigned. Instead, he
has chosen to shamelessly carry on. This
spoils the reputation of the university
which only last year completed 100
years of its establishment.”
VIOLATION OF LAW
Not allowing girls to step out of their
hostel after 6 pm or 8 pm or denying
them other facilities which are available
to their male counterparts is not just
oppressive but also a blatant violation of
their constitutional rights and several
other legal provisions laid down by the
University Grants Commission (UGC)
and the All India Council for Technical
Education (AICTE).
annual budget of `16 crore—now is to
carry out moral policing and to catch
couples who move together. Girls have
had to even give in writing that they are
guilty of moving with their friends and
will never do so in the future,” says
Mineshi Mishra, a final-year Psychology
(Hons) student at the university.
NOT NEW TO BHU
Denial of equal rights to girl students
isn’t a recent development at the univer-
sity. In fact, it is something that can be
traced back to the days when the insti-
tution was founded by Hindu Maha-
sabha leader Pandit Madan Mohan
Malaviya. Malaviya’s reservations aga-
inst women seeking gender parity are
well-documented, as are his views that
endorse the supremacy of Brahmins in
India’s caste system. It was this ideology
that in the formative years of BHU saw
renowned poet and writer Mahadevi
Verma being denied admission to the
MA, Sanskrit course, ostensibly on
account of her being a woman and a
non-Brahmin.
In later years, while BHU adminis-
trators like Dr S Radhakrishnan, Acha-
rya Narendra Deva and Triguna Sen
tried to introduce some reforms aimed
at introducing greater gender parity and
eliminating discrimination on the basis
of caste, regional and linguistic differ-
ences of BHU students, many of these
measures didn’t always reach their
intended conclusion. These divisions
have clearly resurfaced in recent years.
Celebrated writer and former pro-
fessor of Hindi Literature at BHU,
Kashinath Singh, points out: “This is
20 October 9, 2017
MineshiMishra,afinal-year
Psychology(Hons)studentatthe
university,saystheonlyjobofthe
proctorsnowistocarryoutmoral
policingandtocatchcoupleswho
movetogether.Girlshavehadto
giveinwritingthattheyareguilty
ofmovingwiththeirfriendsand
willneverdosointhefuture.
Article 14 of the constitution clearly
prohibits any discrimination on the
basis of sex. Similarly, AICTE and UGC
rules expressly state: “Concern for the
safety of women students must not
be cited to impose discriminatory rules
for women in the hostels as compa-
red to male students. Campus safety
policies should not result in securiti-
sation, such as over monitoring or
policing or curtailing the freedom of
movement, especially for women
employees and students.”
However, the BHU administration
seems inclined towards pressing ahead
with a patriarchal agenda that places
unreasonable restrictions on girls.
Prof Malik believes that the “sys-
temic failure” and “betrayal of the trust
that girl students and their parents have
placed in the university” are a direct
fallout of BHU turning into a “labora-
tory where the likes of Tripathi want to
create ideologically narrow-minded
individuals like themselves instead of
students of academic brilliance”.
Predicting worse times to come, Prof
Malik says: “Fascism has taken roots in
our institutions of learning and BHU is
a prime example.” That may be a bit of
an exaggeration but the hard lesson
from the BHU fiasco is that it takes just
one man in a position of power to des-
troy the reputation of one of India’s
most prestigious universities.
—With inputs from Lilly Paul
BHUalumnusandSPleader
ShatrudraPrakash feelsthatever
sinceGirishChandraTripathitook
overasvice-chancellor,hehas
handedovertherunningofthe
universitytoacoterieof
Brahminsandpeoplefrom
Allahabadwhosubscribetohis
narrow-mindedideology.

AW schools are turning into
battlegrounds, casting a
shadow over the educational
standards of the next gener-
ation to join the legal frater-
nity. Students in a number
of National Law Universities (NLUs),
prestigious nurseries for any law aspi-
rant, have been on strike and clashed
with the police and the administration,
Lead/ Student Unrest/ Legal Education
22 October 9, 2017
leading to chaos and casualties—one
vice-chancellor was forced to resign.
September witnessed protests in at
least four NLUs—Guwahati, Ranchi,
Lucknow and Vizag—which were
demanding an Institute of National
Importance (INI) status, similar to
IITs and IIMs.
At the National University of Study
and Research in Law (NUSRL) at
Thepastfewmonthshaveseensomepremierlawuniversities
descendintochaosastheadministrationandstudentsbattleit
outoverfunding,infrastructureandfaculty
By Chandrani Banerjee
L
Lawless Law
Campuses
PUSHED TO THE BRINK
(Above) students
protesting at RMLNLU,
Lucknow;
(top) banners at
NUSRL, Ranchi
Photos: Twitter

Ranchi, a recent protest called by the
students’ union went on for more than
10 days and ended only on September
20. An earlier protest in April had
demanded a complete administrative
overhaul, including the ouster of then
vice-chancellor, BC Nirmal. It was called
off only after a temporary V-C, Gautam
Chaudhary, replaced Nirmal. However,
the students made it clear that they
would protest again if there was no
improvement in the management of the
law school. Similar protests in Guwa-
hati National Law University and
Judicial Academy (NLUJA) last May,
forced the police to storm the campus,
armed with shields, batons, barricades
and water cannons.
These signs of lawlessness are worry-
ing for India’s NLUs, which were set up
as premier institutes on the lines of IITs
and IIMs. Over the years, things seem to
have deteriorated and complaints by
student bodies have multiplied. These
range from lack of services, recruitment
issues and poor faculty. Most of the
problems have arisen in NLUs in the so-
called Tier-3 cities, giving credence to
the view that legal education institutes
are expanding too fast without the cor-
responding control on quality and infra-
structure, including well-trained faculty.
The result: simmering discontent has
bubbled over. The constant discord
between the administration and the stu-
dents has also put a question mark on
the tag of “excellence” given to these
institutions. Students are selected
through a tough Common Law
Admission Test (CLAT) and only the
best and brightest get in. That image
has taken a beating with the rise in vio-
lence and administrative failures.
ASSAM PROTESTS
At the Guwahati National Law Univ-
ersity and Judicial Academy, where
clashes between students and police
erupted last May, a third-year student
told India Legal: “The issue stems from
the administration’s apparent reluctance
to provide students services that they
have charged as a part of the annual fee.
There was no university campus till
February 2017. It is only after protests
and blocking the cavalcade of the Chief
Justice of Guwahati High Court, Ajit
Singh, that action was taken and a new
campus came up. This is the case with
most of the newly formed NLUs. We
will fight till we get INI status.”
NLUs have been divided as per loca-
tion and are situated in Tier-1, Tier-2
and Tier-3 cities. Those in Tier-3 cities
are managed either by the chief minister
of that state or the respective high
courts. Therefore, funds are not from
the central government and the state
has to look after their functioning. This,
allege students, has often led to mal-
administration and malpractises.
In Ranchi, the situation has not
improved despite the V-C being
replaced. In late August, students
alleged in a letter to the administration,
that the promises made earlier were cos-
metic, so a sit-in protest near the cam-
pus gates culminated in a verbal alterca-
tion between the V-C and around 200
students. The students demanded CCTV
footage of the faculty recruitment
process due to the poor standard of the
teachers there. Chaudhary refused, after
which a major confrontation took place.
The police was called and patrolled
AWAITING JUSTICE
Protesting students at NUSRL, Ranchi
Thelawlessnessisaworryingsignfor
India’sNLUs,whichweresetupas
premierinstitutesonthelinesofIITs
andIIMs.Overtheyears,thingsseem
tohavedeterioratedandcomplaintsby
studentbodieshavemultiplied.These
rangefromalackofservices,
recruitmentissuesandpoorfaculty.

24 October 9, 2017
of a National Law University, and that
the last two recruitments of teachers
had led to the appointment of highly
incompetent candidates. They also
claimed that funds allotted to the
University had been used as per the
whims and fancies of the administrative
officers and not in the interests of the
the campus. Meanwhile, the Jharkhand
High Court intervened and authorised
the police to use force to clear out
the protestors.
Several of them were also arrested.
One of the protestors, a fifth-year stu-
dent, said: “We were manhandled by the
police. Water cannons were used to dis-
perse the students.”
LUCKNOW VARSITY PROBLEMS
Similar problems have cropped up at
Ram Manohar Lohiya National Law
University (RMLNLU) in Lucknow.
Here, too, there have been demands for
the removal of the V-C.
In September, the students sent a
signed complaint to Chief Minister Yogi
Adityanath where they alleged sexual
harassment of male and female students
by two senior administrative officers.
They demanded the immediate removal
of Vice-Chancellor Gurdeep Singh,
registrar Shambhu Kumar, joint
registrar JD Gangwar and assistant
registrar Sanjay Diwakar, and an inquiry
into the issue.
They also alleged that the quality of
teachers was nowhere near the standard
students. Also, they alleged that the
budget allocation for various commit-
tees catering to student interests was
highly arbitrary, hampering their devel-
opment. Time and again, they say,
unreasonable monetary penalties were
imposed on the students.
Plus, the University faced a huge cri-
Lead/ Student Unrest/ Legal Education
AstudentattheGuwahatiNational
LawUniversityandJudicialAcademy
saidthatitisonlyafterprotestsand
blockingthecavalcadeoftheChief
JusticeofGuwahatiHighCourt,Ajit
Singh(above),thatactionwastaken
andanewcampuscameup.
StudentsofRamManoharLohiya
NationalLawUniversity,Lucknow,sent
asignedcomplainttoChiefMinister
YogiAdityanathwheretheyalleged
sexualharassmentofmaleandfemale
students,anddemandedtheremovalof
theV-C,GurdeepSingh(above).

sis on the placement front and the
administration had offered no coopera-
tion or funds to facilitate this. RMLNLU
spokesperson Alka Singh told India
Legal: “There is an urgent need to look
into the demands put forward by the
students. NLU is a premier institute and
students who have come to the college,
beating the tough entrance exam,
should get the desired satisfaction
from it.”
VIZAG ISSUES
Similar problems also surfaced at the
Damodaram Sanjivaya National Law
University, Vizag. The university was
fighting for its campus since 2008 and
got it a year back. The campus wit-
nessed protests.
Support for the students’ cause has
also come from Guwahati NLU and
Amity Law School, Lucknow. Also, the
Students Bar Association of National
Law School of India University,
Bangalore; Student Bar Council of
NALSAR, Hyderabad and Student
Juridical Association of Kolkata NLU
have come forward and issued a state-
ment expressing solidarity with the
protesting students.
A joint statement said: “The recent
unfortunate turn of events at the
National University of Study and
Research in Law (NUSRL), Ranchi,
have starkly highlighted the problems
plaguing all National Law Universities,
old and new alike….
“The lax attitude of their administra-
tion is regrettable. The mismanagement
of university funds robs these students
of their legitimate aspirations of availing
even basic amenities that are expected
of a public university.”
What the students are demanding
seems reasonable enough. They include
annual publication of audit reports,
appointment of a financial officer,
setting up of a school review
commission, permission for formation
of a students’ union and increase in
funds. Unless these problems are tack-
led, legal education in the country
will suffer.
AttheNationalUniversityofStudy
inResearchandLawatRanchi,a
protestcalledbythestudents’unionin
Septemberdemandedacomplete
administrativeoverhaul,includingthe
ousterofthethenVice-ChancellorBC
Nirmal(above).
DOWNWARD SLIDE
(L-R) Premier institutes like IIT,
Kharagpur, and IIM, Ahmedabad
flourish while mainline law
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candidates take extensive
coaching, a costly proposition
successaheadeducation.cominsideiim.com

T was a double whammy which the
centre could well have avoided in
the Supreme Court. On August 1, it
suffered the ignominy of having to
pay `25,000 as fine for its failure
to submit an affidavit in time
before a bench which was monitoring its
steps to prevent and compensate victims
of sexual assault. The fine was to be
deposited with the Supreme Court Legal
Supreme Court/ Nirbhaya Fund
26 October 9, 2017
Services Committee, as directed by the
bench of Justices Madan B Lokur,
Prafulla C Pant and Deepak Gupta. And
when the centre did submit an affidavit,
after paying up the fine, the Court found
it guilty of non-application of mind and
obfuscation in preparing it.
Although the centre retrieved the sit-
uation by agreeing to submit a better
affidavit before the next date of hearing
Astheapexcourtwidensthescopeofapetitionseekingeffectivestepstocontainsexual
offences,theunder-utilisationofthisFundcomesunderscrutiny
By Venkatasubramanian
IMASS UPRISING
The Nirbhaya rape
incident led to angry
demonstrations all
over the country
Insulting Her Memory

on October 4, the contents of its first
affidavit left it vulnerable to criticism
from civil society and the Court for the
manner in which it dealt with the safety
and security of women in the country.
The case in which the centre’s hastily
drawn affidavit exposed its lack of pre-
paredness is Nipun Saxena v Union of
India, being heard since 2013. Nipun
Saxena, who had filed his petition as a
law student, is now a young lawyer. He
sought effective steps to ensure security
for women in public places, the estab-
lishment of a Criminal Injuries
Compensation Board and a ban on the
two-finger test to check the virginity of
rape survivors as it violates their dig-
nity. Apart from the one filed by Saxena,
the Court has tagged five other peti-
tions, making similar prayers, to be
heard together.
One of the shocking disclosures from
the centre’s affidavit was that more than
90 percent of the `3,100-crore “Nir-
bhaya Fund”, announced by the Union
Ministry of Finance, following the
Nirbhaya incident in Delhi in 2012, is
yet to be utilised since 2015.
According to the affidavit, the centre
has sanctioned just `264 crore—8.5 per-
cent of the earmarked funds—till
August 2017.
T
he Nirbhaya Fund is a dedicated
fund for implementation of ini-
tiatives aimed at enhancing the
safety and security of women in the
country. It is a non-lapsable corpus
fund. It was set up with a corpus of
`1,000 crore during 2013-14. An
amount of `1,000 crore was provided in
2014-15, and for the financial years
2016-17 and 2017-18, an amount of
`550 crore for each financial year was
provided. The corpus, transferred to the
public account for the Nirbhaya Fund,
up to 2017-18 is `3,100 crore.
The Ministry of Women and Child
Development (MWCD) is the nodal
ministry to appraise schemes under
the Fund and also review and monitor
the progress of sanctioned ones in
conjunction with other ministries and
departments. On October 26, 2015, an
empowered committee of officers—an
inter-ministerial committee—was con-
stituted under the chairmanship of
Secretary, MWCD, for appraising and
approving various schemes/projects
by the ministries/departments to be
funded from it. Till July 21, the commit-
tee had appraised and recommended 22
proposals amounting to `2,209.19 crore.
These proposals of different ministries/
organisations are at various stages of
implementation.
Of the 21, seven have been proposed
by the ministry of home affairs, one
each by the ministry of railways, and
ministry of electronics and information
technology, two by MWCD, two from
Andhra Pradesh and one each from
Rajasthan, Haryana, Gujarat,
Uttarakhand, Karnataka, Madhya
Pradesh, Uttar Pradesh and Odisha.
The MWCD initiated three schemes
from the fund—“One Stop Centre”,
Universalisation of Women Helpline
and Mahila Police Volunteer. Popularly
known as Sakhi Centres, the One Stop
Centre scheme is being implemented
across the country since April 1, 2015. It
aims at establishing centres to provide
first aid, medical help, police and legal
assistance and counseling to women
affected by violence. The scheme aimed
to set up 186 such centres by July this
year, even as the government claimed
that 79 of them had become operational
in February.
The Department of Telecommunica-
(L-R)ThebenchofJusticesMadanBLokur,PrafullaCPantandDeepakGuptaslapped
afineof`25,000onthecentreforfailuretosubmitanaffidavitbeforeabench
monitoringitsstepstocompensatevictimsofsexualassault.Aftertheaffidavitwas
submitted,theCourtstillfounditguiltyofnon-applicationofmindinpreparingit.

Supreme Court/ Nirbhaya Fund
28 October 9, 2017
to be compensated and at what stage
the compensation has to be paid. The
bench, it appears, clearly understood
that there is a distinction between
acceptance of proposals from different
agencies and the actual sanctioning of
amount for the purpose of implemen-
tation, on which there has not been
much progress.
For the setting up of One Stop
tions (DoT) allocated 181 as the Women
Helpline number to all states and Union
Territories. The centre claimed that it
has released funds to 33 states and UTs
to make the Women Helplines opera-
tional and link them to the One Stop
Centres. In February, the government
claimed that these helplines were opera-
tional in 18 States and UTs.
Other schemes being funded by the
Nirbhaya Fund include Mahila Police
Volunteers, Emergency Response Sup-
port System, Central Victim Compen-
sation Fund and the Integrated
Emergency Response Management
System of Railways.
A
lthough these schemes look fine
on paper, the gap between them
and their implementation made
the Supreme Court express its displeas-
ure on September 23. It said: “An
unhappy state of affairs prevails on the
issue since there is a lot of confusion in
the absence of clarity on who is respon-
sible for paying compensation to sexual
assault victims, and at what stage it has
to be paid.”
The bench of Justices Lokur and
Deepak Gupta further observed that
there is no system on how the funds
have to be disbursed, how victims have
Centres, for instance, the government
has released just `64.11 crore instead of
the proposed `120 crore.
Senior counsel, Indira Jaising, ami-
cus curiae in the case, has submitted to
the Court that there is no uniformity in
disbursal of funds to the victims. She
brought out the disparity by suggesting
that in Goa, the amount is `10 lakh,
while in some other states, it is only `1
lakh. The centre, she claimed, had
transferred `200 crore under the
Nirbhaya scheme to each state, but
there is no clarity on whether this was a
one-time transfer or annual procedure.
T
he Supreme Court expressed its
concern over the involvement of
multiple agencies in the imple-
mentation of projects meant to be
financed from the Nirbhaya Fund.
Although MWCD is considered the
nodal ministry for the management of
the Fund, the empowered committee
draws officials from other ministries
because of various dimensions of the
Fund. In the absence of coordination
between them, it is likely to lead to con-
fusion on who is involved and what is
their responsibility.
The Supreme Court found the cen-
tre’s affidavit wanting in details such as
state-wise number of victims of sexual
assaults and the amount of compensa-
tion given to them. Besides disparities in
the victims’ compensation schemes of
state governments, the bench is also
concerned with the absence of any pro-
vision for interim compensation to the
victims in most states, absence of effec-
tive witness protection schemes, etc.
The Supreme Court’s orders, in this
case, will hopefully translate into better
results on the ground.
SeniorcounselIndiraJaisingsubmitted
totheCourtthatthereisnouniformityin
disbursaloffundstothevictims.Whilein
Goa,theamountis`10lakh,insome
otherstates,itisonly`1lakh.
A FRIEND IN NEED
Sakhi Centres are meant to provide first
aid, medical help, police and legal
assistance to women affected by violence

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Courts/ MP/ Dismissal of Judges
30 October 9, 2017
HEN lawyers Ashraf
Ali and Manoj
Kumar were selected
in May this year as
additional district
judges (trainee) by
the Madhya Pradesh government
through lateral entry, they would not
have expected that their services would
be short-lived. But that is what hap-
pened, as within two months of their
posting, the administrative committee of
the Madhya Pradesh High Court
declared them ineligible for the job and
recommended their dismissal. The
judges had flouted the two-child rule
that makes state government employees
ineligible for service if their third child
is born after January 26, 2001. Manoj
Kumar was posted in Gwalior and
Ashraf Ali in Jabalpur.
The committee in its meeting in July
had recommended to its full bench the
termination of the service of these
trainee judges under Rule 9C of the
Madhya Pradesh Higher Judicial Service
(Recruitment and Condition of Service)
Rules, 1994. In 2000, the rules were
amended to bring in the two-child poli-
cy. The amended Rule 6(5) thus states:
“A candidate shall be eligible for
appointment only when, as per amend-
ment brought about by the Government
of Rule 6 of Madhya Pradesh Civil
Services (General Conditions of Service)
Rules 1961, dated 10-03-2000.
(a) A male candidate is not married
before 21 and a female candidate before
18 years of age.
(b) The candidate doesn’t have a
third offspring after 26th of January
2001.”
MP RULES
And on July 26, the full bench of the
Court presided by the chief justice
endorsed the administrative committee’s
recommendation. The matter was for-
warded to the law and legislative affairs
department for action.
After terminating the services of the
Stork’s Untimely Visit
Whiletheservicesoftwojudgeshavebeenterminatedforviolatingthetwo-childnorm,there
areallegationsthatmanymoresuchviolatorsareservingthestate
By Rakesh Dixit in Bhopal
W
Anthony Lawrence

trainee judges, the department issued a
gazette notification quoting sub rules 5
and 6 of Madhya Pradesh Civil Services
(General Condition of Service) Rules,
1961, that say trainees are not eligible
for service or recruitment if they have
more than two living children, one of
whom is born after January 26, 2001.
“Services of additional district
(trainee) judge at Gwalior, Manoj
Kumar, and additional district (trainee)
judge Ashraf Ali, posted at Jabalpur,
stand terminated,” HC registrar general
Mohammed Fahim Anwar said. “The
action was taken for having violated the
two-child norm.”
In Manoj Kumar’s case, the admin-
istrative committee found that he had
not furnished information in the requi-
site form that he had three children
and one of them was born after January
26, 2001. It was only after Kumar was
posted at Gwalior as fourth additional
district judge that he informed the
Madhya Pradesh High Court that he
had three children.
The Court, in turn, referred the mat-
ter to the administrative committee.
When India Legal sought his reac-
tion, Kumar declined to comment. A
lawyer from Ghaziabad, Manoj intends
to resume his legal practice, according
to sources close to him.
Ashraf Ali, the second dismissed
judge, had allegedly concealed informa-
tion about his third child born after
January 26, 2001. The High Court re-
ceived an anonymous complaint about
Ali having three children. Ali was
unavailable for comment.
WHISTLE-BLOWER
This is the first time that the MP gov-
ernment has dismissed judges for flout-
ing the two-child policy since it came
into force 16 years ago. Although the
administrative committee had recom-
mended the judges’ termination in July,
the law department dilly-dallied in
accepting the recommendation. Action
against them swiftly followed after a
suspended additional district judge,
RK Srivas, wrote a letter to the
President of India on September 10. In
his letter, Srivas alleged that at least 15
additional district judges in Madhya
Pradesh had flouted the two-child policy
but neither the MP High Court nor the
state government had taken any action
against them.
Srivas had created a scene in the
Madhya Pradesh High Court principal
bench in Jabalpur by sitting on dharna
in front of the court premises in July. He
alleged that the Court was victimising
him by transferring him frequently for
highlighting injustice in the judiciary.
The High Court subsequently suspend-
ed him for gross indiscipline.
Undeterred, Srivas later drove a bicy-
cle from Neemuch, where he was post-
ed, to Jabalpur to highlight his
demands. He also wrote a five-page let-
ter addressed to the president, the prime
minister and the chief justice of India.
One of the 12 points he raised in the
memorandum highlighting “injustice
prevalent in the MP high court” was vio-
lation of the two-child policy by judges.
Incidentally, the previous case of termi-
nation of government employees in the
state for violating two-child policy also
pertains to the lower judiciary.
Three peons, posted at Damoh dis-
trict court, were sacked on the charge of
violating the two-child norm. Citing
Section 6(6) of MP Civil Services Rules,
1961, district and session judge Anjuli
Palo sacked the three—Kalyan Singh
Thakur, Chanda Thakur and Lalchand
Burman—on June 23, 2016. The sacked
peons too had demanded a similar
inquiry across the state. They alleged
that if a similar inquiry was held across
the state, lakhs of government employ-
ees would be found violating the two-
child norm.
Sources in the law department admit
that there might indeed be many viola-
tors of this norm. “Now that judges have
been terminated, similar complaints are
likely to pour in against others who have
had a third child after January 26, 2001.
The action is likely to open “a can
of worms,” said a senior officer in the
law department.
A MAN OF GRIT
Action against the judges was taken after
suspended additional district judge, RK
Srivas (left), wrote to the President of India
Srivasallegedthatatleast15
additionaldistrictjudgesinMP
hadfloutedthetwo-childpolicy
butneithertheMPHighCourtnor
thestategovernmenthadacted.

Courts/ Rape Verdicts
32 October 9, 2017
Information Report (FIR) was also
condoned, as it was reasoned that a
survivor would take time to recover
from the trauma caused by rape, and
would require the support of her
family and friends to make a complaint
to the police.
Section 155(4) of the Indian
Evidence Act, for instance, was repealed
by parliament because it enabled the
defence to bring evidence of “general
immoral character” of a rape survivor.
Judgments by high courts in two
Tworecentjudgmentscameinforcriticismasreferencesweremadetothecharacterofthe
victimsandthelackofadefinite“no”fromtheirsidetogiverelieftotheaccused,thereby
settingbackprogressmadeinjurisprudenceinsuchcases
By Venkatasubramanian
The March Backwards
HE Supreme Court in a
plethora of cases in the
1990s, had ruled that the
sole testimony of the
raped survivor is sufficient
to convict an accused.
Thus, sexual history of the survivor
which suggests that she might be
promiscuous or lack of injuries on her
body which could imply absence of
resistance to rape, and therefore con-
sent, were considered to be irrelevant.
In many cases, delay in filing the First
T
FIGHTING IT OUT
Red Brigade members on dharna in
Lucknow, demanding steps to check
violence against women
UNI

mired in drugs, alcohol, casual sexual
escapades and a promiscuous and
voyeuristic world”.
The High Court then offered a
bizarre justification for why the accused
deserved to be released on bail. It said:
“The testimony of the victim does offer
an alternate story of casual relationship
with her friends, acquaintances, adven-
turism and experimentation in sexual
encounters and these factors would,
therefore, offer compelling reasons to
consider the prayer for suspension of
sentence favourably particularly when
the accused themselves are young and
the narrative does not throw up gut
wrenching violence, that normally pre-
cede or accompany such incidents.”
recent cases have, however, tended to
ignore this remarkable progress in
jurisprudence in coming to the aid of
rape survivors. In Vikas Garg v State of
Haryana, decided on September 13,
the Punjab and Haryana High Court
released three rape accused on bail
after questioning the testimony of the
survivor. The three accused were stu-
dents of Jindal Global Law School,
Sonepat, while the survivor was a stu-
dent of the Management School of OP
Jindal University.
A trial court had found all the three
guilty of gang rape and sentenced two of
them to 20 years, and one to seven years
imprisonment. Two of them had com-
pleted a jail term of more than two
years, while the third was about to com-
plete two years in jail. Their appeals
were pending before the High Court.
In the normal course, it is not open
for appellate courts to examine evidence
in order to determine whether the con-
victs deserved bail during the pendency
of their appeals. But the High Court
observed: “A perusal of the statement of
the victim as also her cross-examination
reveals a promiscuous relationship and
sexual encounters with all the three
accused persons over a period of time
and at no stage, did she ever make any
attempt to reveal her mental state to
either the authorities in the college or to
her parents or her friends.”
SOCIAL AND MORAL SCRUTINY
The High Court justified reproducing
her statement and her cross-examina-
tion in extenso to gain and give an
insight into the “immature but nefarious
world of youngsters unable to compre-
hend the worth of a relationship based
on respect and understanding”. The
High Court concluded that the entire
“crass sequence actually is reflective of a
degenerative mindset of the youth
breeding denigrating relationships
DIFFERENT STROKES
While the Nirbhaya case (right) set a
trend for tightening rape laws in favour
of the victim, in the elite OP Jindal
University (below) case, questions were
asked about the woman’s assumed
“consent” and social behaviour

34 October 9, 2017
victs found guilty of heinous offences
like rape, the bench offered one more
bizarre reasoning to justify bail: “We are
also of the opinion that the pendency of
the appeal, ironically may work as a
guarantee to prevent a repeat resulting
from the fear of incarceration in the
event of failure of the appeal.” Can the
appellate court offer similar reasoning
to grant bail to convicts awaiting deci-
sion on their appeals?
The High Court’s order abounds in
contradictions. Having granted them
The High Court thus noted that one
of the accused and the survivor
exchanged their respective nude pic-
tures, but ignored her testimony that
she did so because she was coaxed by
him. Again, her acceptance of a sex toy,
as suggested by one of the accused, is
cited as a factor suggesting that she too
suffered from misadventure, stemming
from a promiscuous attitude and a
voyeuristic mind. However, her expres-
sion of unwillingness to buy the sex toy
was ignored by the High Court.
The Court then concluded: “It would
be a travesty if these young minds are
confined to jail for an inordinate long
period which would deprive them of
their education, opportunity to redeem
themselves and be a part of the society
as normal beings. Long incarceration at
this stage when the appeal is not likely
to mature for some time is likely to
result in an irreparable damage.”
Even as one wonders whether similar
reasoning could be applied to other con-
bail, it directed the All India Institute of
Medical Sciences, Delhi, to depute a
trained psychiatrist to counsel the acc-
used, (whom it now called as victims),
and report to the Court on whether they
are free of their voyeuristic tendencies.
The High Court asked the three con-
victs to share the amount of compensa-
tion of `10 lakh to be offered to the sur-
vivor, equally, as if it could be a condi-
tion for grant of bail. That the Court did
not hear the survivor or her family on
the grant of bail to the accused is anoth-
er anomaly which needs to be addressed
if the bail is challenged.
The fact that the Court was ready to
consider the plea of the accused to travel
abroad for education makes one wonder
if their class influenced the verdict.
FAROOQUI CASE
In the second instance, the Delhi High
Court acquitted Mahmood Farooqui ,
the well-known writer and co-director
of the film, Peepli Live, for the rape of
Courts/ Rape Verdicts
“Thetestimonyofthevictimdoes
offeranalternatestoryofcasual
relationshipwithherfriends,
acquaintances,adventurismand
experimentationinsexual
encounters...”
–PunjabandHaryanaHC

at all that the prosecutrix was unwill-
ing,” the High Court explained.
It added that when there is an ass-
umed consent, it matters not if one of
the partners to the act is a bit hesitant.
Consent has to be an affirmative
one in clear terms, the Court agreed
subsequently. If this was so, why did it
interpret a feeble hesitation as consent
is not clear.
COURT’S INTERPRETATION
The High Court suggested that if the
parties are known to each other, are per-
sons of letters and intellectually/acade-
mically proficient, and if, in the past,
there have been physical contact, it
would be really difficult to decipher
whether little or no resistance was actu-
ally a denial of consent.
In an act of passion, actuated by
libido, there could be myriad circum-
stances which can surround consent and
it may not necessarily always mean yes
in case of yes or no in case of no, the
Court explained.
The Court’s interpretation of her post-
incident conduct is riddled with contra-
dictions, as it later agreed it could be
explained by her trauma.
Meanwhile, on a positive note, the
Bombay High Court, while refusing bail
to an accused, convicted and sentenced
to 10 years’ rigorous imprisonment
under the Protection of Children from
Sexual Offences Act, has held that
women of easy virtue have the right to
refuse consent.
The Court refused to consider the fact
that the accused was the sole earning
member of his family, for suspending
his sentence.
The first two verdicts have naturally
come in for a lot of criticism as not only
were they seen as “sexist” and setting
back women’s rights, but they seemed to
show how easily the judiciary was influ-
enced by the class of the accused in
granting relief to them.
to be so even when she knew about his
drinking habits and also when he was
heavily drunk and befuddled on that
day. The prosecutrix had exchanged
kisses and hugs with the appellant in
the past. The prosecutrix had accepted a
kiss from the appellant even while the
appellant was in the company of his
wife and the wife had, for a brief
period, gone out of the room, on an
earlier occasion.
(b) The prosecutrix had been cracking
jokes and indulged in playful banter
immediately prior to the occurrence.
(c) During the act, the prosecutrix
feigned orgasm.
(d) Prior to the act, the appellant had
asked her for sexual favours to which
she did not stoutly resent or deny.
(e) The prosecutrix continued to remain
in the company of the appellant.
(f) That the prosecutrix was under fear
was absolutely unknown to the appellant.
(g) The conduct of the prosecutrix, post
occurrence, namely her remaining in
the house.
(h) The prosecutrix did not communi-
cate about this occurrence to other
acquaintances, even when there was an
opportunity to do so.
The High Court further reasoned
that her unwillingness was only in her
own mind and heart, but she communi-
cated something different to him.
“If that were not so, the prosecutrix
would not have told the appellant that
he had gone too far on that night. At
what point of time, during the act, did
she not give the consent for the same,
thus, remains unknown, and it can safe-
ly be said that the appellant had no idea
an American research scholar who
had interacted with him during her stay
in India.
The Special Fast Track Court, Saket,
had found Farooqui guilty of rape in a
detailed judgment last year and had
sentenced him to rigorous imprison-
ment of seven years and a fine of
`50,000.
While acquitting Farooqui, the Court
gave a bizarre interpretation of consent,
and refusal. Consent, as defined under
Section 375 of the Indian Penal Code,
the High Court said, includes non-ver-
bal and verbal communication. It inter-
preted the circumstances of the incident
as indicating consent of the complainant
for a sexual encounter with Farooqui.
Although the past sexual history of
the prosecutrix with the accused cannot
be a ground for denying the absence of
consent during the incident in question,
the High Court concluded as follows:
(a) The prosecutrix had been in the
company of the appellant and continued
“Atwhatpointoftime,during
theact,didshenotgive the
consentforthesame,thus,
remainsunknownanditcan
safelybesaidthattheappellant
hadnoidea...”
—DelhiHighCourt
“NO” MAY NOT MEAN “NO”
Mahmood Farooqui (above),
writer and co-director of Peepli
Live (facing page), was acquit-
ted by the Delhi High Court
for the alleged rape of an
American scholar

Focus/ Justice Jayant M Patel’s Resignation
36 October 9, 2017
HE Supreme Court’s colle-
gium is facing a crisis of
credibility with Justice
Jayant M Patel of the
Karnataka High Court ten-
dering his resignation on
September 25. Justice Patel resigned fol-
lowing the collegium’s order of his trans-
fer to Allahabad High Court, where he
would have been the third senior-most
judge, as compared to his current No 2
position in the Karnataka High Court.
When the current chief justice, Subhro
Kamal Mukherjee retires on October 9,
he would ordinarily have become the
acting chief justice of the Court.
Prior to that, Justice Patel had been
on the bench of the Gujarat High Court
for 15 years, and during that tenure, had
ordered a CBI investigation into the
alleged fake encounter of Ishrat Jahan, a
case where fingers were pointed at the
BJP’s top state leadership.
This unprecedented transfer, with
only 10 months to go before his retire-
ment, has sent shockwaves among bar
associations, and drawn condemnation.
The focal point has been the opacity in
the collegium’s decision-making process
and there are demands that it disclose
the reasons for his transfer.
Speaking to India Legal, Justice Patel
emphasized that he had always taken
decisions without fear or favour and was
an upright judge. “Now that I have sent
in my resignation, the onus is on the
collegium to follow the due process of
law and come clean on the entire affair,”
he said. (Sources said the resignation
would be officially accepted by the
President) The judge declined to specu-
late on why he was transferred and
whether it was because he had not toed
the line of the powers-that-be. He stated
that he would “strictly abide by the
process mandated by judicial discipline”.
On September 26, the Gujarat High
Court Advocates’ Association (GHCAA)
passed a resolution approved by 99 per-
cent of the members condemning Jus-
tice Patel’s abrupt transfer. Expressing
its “strongest possible objection and dis-
approval against the decision of the col-
legium of the Supreme Court of India”,
it stated that the decision had shaken
the belief of the Bar in the independ-
ence of the judiciary and had the poten-
tial of “adversely affecting the morale of
the legal fraternity and the judiciary”.
Resolving to challenge the transfer
decision in the Supreme Court, the
GHCAA has decided to raise larger
issues, viz. seeking full disclosure of the
reasons of the collegium and/or High
Court with regard to the “recommenda-
tions of appointments, non-appoint-
ments, non-confirmations of HC Judge
and/or elevations or non-elevation of a
High Court Judge to Supreme Court or
Collegium Faces Flak
TheSupremeCourt’sdecisiontotransferthisjudgefromKarnatakatoAllahabadhasdrawn
widespreadcriticism.Butwilltheprotestsyieldanyresult?
By Saurav Datta
T
NEXT IN LINE:
Justice Jayant M Patel
(inset) would have
become the acting chief
justice of the Karnataka
High Court come October
NEXT IN LINE:
Justice Jayant M Patel
(inset) would have
become the acting chief
justice of the Karnataka
High Court come October

as Chief Justice of HC and for making
full-fledged Judicial review available in
such situations to the candidates conce-
rned or the Bar Association in general”.
The Karnataka State Bar Council too
released a statement on September 27,
saying that “the entire legal fraternity is
anguished and is greatly disturbed by
the shaking of faith/confidence in the
collegium system; which has meted out
such treatment to the Hon’ble Mr.
Justice Jayant Patel, who apparently, has
satisfactorily discharged his duties and
functions as a Judge”.
Members of the Bar feel that deci-
sion-makers in the judiciary and execu-
tive had apparently overlooked the spirit
of the NJAC verdict in achieving trans-
parency. It was also critical of the col-
legium for non-appointment of judges
to the High Court. “Because of the injus-
tice meted out to the upright judge, we
have called upon all lawyers in the state
to protest and abstain from work on
October 4”, it stated.
T
he Campaign for Judicial
Accountability and Reforms also
slammed the treatment meted
out to Justice Patel. It said that he was
“being victimized for his courage and
commitment to take on cases that went
against the political establishment.”
It made the following demands from
the collegium:
“eligibility criteria and process for
selection/transfer of judges are made
public;
names of short listed candidates are
disclosed, along with details of how they
satisfy the eligibility criteria, why they
were selected over those who were not,
and their background details;
putting in place an appropriate proce-
dure to maintain minutes of all meet-
ings of the collegium;
that the minutes of the meetings of
the collegium are made public.”
Yatin N Oza, senior advocate in the
Gujarat High Court and a former BJP
MLA, alleged to India Legal that the
collegium’s members were “determined
to ensure a judiciary committed to the
executive”. He alleged that it had delib-
erately prevented the transfer of Chief
Justice Mukherjee to another high court
so as to block Justice Patel’s ascension.
The Supreme
Court’s 1993 judg-
ment in Supreme
Court Advocates on
Record Association
v Union of India
referred to Article
222 which deals
with its power to
transfer judges. It said: “There is noth-
ing in the language of Article 222(1) to
rule out a second transfer of a once tra-
nsferred judge without his consent but
ordinarily the same must be avoided un-
less there exist pressing circumstances
making it unavoidable. Ordinarily a tra-
nsfer effected in public interest may not
be punitive but all the same the Chief
Justice of India must take great care to
ensure that in the guise of public inter-
est the judge is not being penalised.”
This is the second time Justice Patel
has been transferred; the first was in
2016 from Gujarat to the Karnataka
High Court. Although the consent of the
judge being transferred is not strictly
necessary, the 1993 judgment makes it
clear that it should be taken “unless
there exist pressing circumstances mak-
ing it unavoidable”. In addition, the cir-
cumstances must be in “public interest”.
What the “pressing circumstances” in
the present case are, no one will know
unless the collegium discloses it. The
problem is compounded by the fact that
transfer decisions of the collegium can-
not be challenged in court.
It now remains to be seen whether
the Supreme Court entertains and
decides favourably on the GHCAA’s peti-
tion. If it does, it would set a precedent
in transparency.
In the ongoing debate over Justice
Jayant M Patel, the Bar Council of
India said that it may not agree with
the decision of the collegium to trans-
fer him and may join hands with the
Gujarat High Court Advocates’
Association in the legal proceedings.
At the same time, the Council took
serious notice of a statement by
Dushyant Dave, former president,
Supreme Court Bar Association,
where he had made comments
against Chief Justice of India Dipak
Misra and the collegium. Calling
Dave’s remarks “derogatory and reck-
less,” the Council told him to file a
reply within four weeks after which it
would take further action. Dave had
spoken out against the collegium
after Justice Patel’s resignation and
said this system does not work well
for selecting judges.
The Council said Dave’s com-
ments on TV were “an attempt to
malign the image of judiciary and the
Institution. The personal attack
smacks of some personal vendetta
against the Chief Justice of India
which amounts to gross misconduct”.
BarCouncilHitsOutat
DushyantDave
HAUNTED BY THE
PAST: Justice Patel
had ordered a CBI
investigation into the
alleged fake encounter
of Ishrat Jahan

38 October 9, 2017
HE malaise of huge pen-
dency of cases in our
country is affecting the
legal system, resulting in
people feeling hopeless-
ness about its efficacy.
The problem of pendency also hit legal
systems of Europe earlier. The famous
quote of Voltaire aptly sums up the
common man’s plight in our country:
“I was never ruined but twice: once
when I lost a lawsuit, and once when
I won one.”
There are two types of litigants: one
who misuses the system to protect him-
self and who continues to take undue
advantage of it, and the other who gen-
uinely approaches for relief.
It was perhaps the perception of
Colonial lawmakers that Indian litiga-
tion is actually driven by those who
misuse the system. Therefore, the
Code of Civil Procedure and the Code
of Criminal Procedure are heavily
loaded in favour of the defendant or
the accused.
Chief Justice Dipak Misra too had
bemoaned the adjournment of cases,
which largely contributes to delay in
their disposal. This pendency has
assumed alarming proportions.
The causes for pendency may be
many, such as lack of clarity or loopholes
in the law, inadequate number of judges,
lack of learning and sincerity among
advocates and non-cooperation with the
courts for expeditious disposal of cases.
When a litigant is enjoying an undue
advantage and if delaying legal proceed-
ings is the only relief, it is quite natural
that he will resort to undesirable tactics
to forestall the expeditious disposal of
the case.
HUGE BACKLOG
It is, therefore, painful to note that one
research institute unearthed the fact
that a company petition in Karnataka
High Court was awaiting admission
since 1985. In Calcutta High Court, a
civil suit was pending for 173 years; it
was filed prior to the establishment of
the court 144 years ago. There are nearly
2.96 crore cases pending in subordinate
courts and 5,000 more judges are need-
ed to tackle pendency. In high courts,
31,16,492 civil cases are pending, and
out of them, 5,98,631 cases have been
pending for over a decade. Also,
10,37,465 criminal cases are pending
Let’s Speed It Up
ConstantadjournmentshaveledtoahugependencyofcasesinIndiaanditisuptojudgesand
lawyerstoamelioratethesituation
Column Justice K Sreedhar Rao
T
UNI

there and out of them,
1,87,999 were pending for
over a decade at the end
of December 2014.
Order 17 Rule 1 of the
Code of Civil Procedure
governs the adjournment
of a case by the court.
While advocates blame
the judge for adjourning
complicated cases, judges blame advo-
cates for seeking adjournments on frivo-
lous grounds.
There was an attempt in 2003 to
amend Order 17 Rule 1 CPC to disable
an advocate from seeking adjournment
on the ground that he is engaged in
another court. In fact, no research or
audit has been done on how effective
the amendment has proved for expedit-
ing the early disposal of cases.
The days of a devoted and disci-
plined bar have become a thing of
the past. Except for the Supreme Court,
in all high and subordinate courts,
strikes by lawyers are commonplace.
The bar no longer fears the judge. It is
the judge who fears the bar nowadays.
REGULATE PROCEDURES
Efforts have to be made on a war-foot-
ing to overcome the reasons for penden-
cy. The present system of listing and
calling of cases envisaged under Order
17 Rule 1 requires to be replaced by
explicit and detailed regulated proce-
dures. The present practice of over-list-
ing of cases keeps the judge, the lawyer
and the litigant in suspense as to which
case will be heard and decided. This
perhaps gives wide scope for adjourn-
ments and wastes judicial time.
Cases which are at the preparatory
or preliminary stage and not ripe
for effective hearing, evidence or argu-
ments should not be listed for the
judge to hear. The registry of the high
court or the chief administrative officers
of subordinate courts should attend to
the preliminary and preparatory work
of a case. Listing of cases should be
limited and proportionate to the judi-
cial time available for effective disposal
for the day.
Also, a case once listed, for hearing,
evidence or arguments should never be
adjourned at any cost. Seriously disci-
pline should be instilled in effectively
conducting the case listed for the day.
Such a rigorous practice would help in
ameliorating the situation and instill
confidence in the public and would
refurbish the sagging image of
the system.
The writer is former acting chief justice
of the Karnataka and Gauhati
High Court
Thepresentpractice
ofover-listingof
caseskeepsthe
judge,thelawyerand
thelitigantin
suspenseastowhich
casewillbeheard
anddecided.This
perhapsgiveswide
scopefor
adjournmentsand
wastesjudicialtime.
JUSTICE DELAYED
As cases pile up in
courts, litigants wait
for years before their
disputes get settled
Imaging: Anthony Lawrence

India Legal 09 October 2017

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