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India Legal 10 December 2018


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Can India Prevent Another 26/11?
Ten years after the Mumbai attacks, a security expert finds the anti-terror apparatus hobbled by petty politics

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India Legal 10 December 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I December10, 2018 Can India Prevent Another 26/11?TenyearsaftertheMumbaiattacks,asecurityexpertfindstheanti-terrorapparatus hobbledbypettypolitics Gujarat Lawyers: Solidarity against judge’s transfer Jayalalithaa: Legacy of defamation
  2. 2. VEN as this is being written, countless thousands of farmers who have con- verged on Delhi from all across the coun- try are marching to Parliament. They are demanding a joint session of Parliament to acknowledge the ballooning agrarian catastro- phe, the implementation of the MS Swaminathan Commission report, increased minimum support prices and the passing of the Farmers’ Freedom from Indebtedness Bill, 2018, and Farmers’ Right to Guaranteed Remunerative Minimum Support Prices for Agricultural Commodities Bill, 2018. These bills were tabled in the Lok Sabha in August by Hatkanangale MP Raju Shetti, the leader of the Swabhimani Paksha, an independ- ent farmers’ political party in Maharashtra. The umbrella organisation for the farmers rally is the All India Kisan Sangharsh Coordination Committee, a union of roughly 200 farmer groups. A similar, unprecedented farmers’ march took place earlier this year in Maharashtra when they trekked to Mumbai to demonstrate their growing economic misery. Couldn’t the government sense that a massive crisis was at hand and address it head-on instead of talking about bullet trains and sea planes and “collusion with Pakistan”? Shortly afterwards, in June 2018, the BJP received a political drubbing in the bypolls across India. A day after the results poured in, The Indian Express carried two headlines on its front page: “Opposition Parties Take 11 of 14 Assembly and Lok Sabha Seats”. Side by side, it ran a feel-good headline for the ruling party: “Good Rabi Crop, Uptick in Factory Output Lift GDP up to 7.7 Per Cent”. It made no sense whatsoever. How could the economy be growing at about the fastest rate in the world while the government receives a simul- taneous thrashing at the hands of voters in what could be a prelude to the 2019 general elections? In Kairana, UP, which had become the riot-torn crucible for vote-catching Hindu-Muslim politics following bloody communal clashes and a reli- gion-based exodus of population that swept the BJP and its majoritarian sabre-rattlers into power, “Jats and Muslims stepped over riot fault- lines to vote together”, the Express said. Actually, this is an example of why statistics should be damned, and political parties should be careful of using “surging” GDP and related feel- good econometrics as vote-catching electoral propaganda. It just doesn’t work. And history seems to be repeating itself. Even as assembly elections are nearing completion in five crucial states and farmers are converging on Delhi, the ruling party is playing roulette with GDP figures, re-naming cities which have Muslim-sounding names, erecting statues, playing dirty politics with the CBI and trying to revive passions over building a Ram temple in Ayodhya. When a voter is unemployed, his pockets empty, jobs shrinking, diesel and petrol prices skyrocketing, mandis in distress, prices soaring, GST raising the cost of anything you touch, mar- kets shrinking and uncountable jobs sacrificed at the altar of economic adventurism like demoneti- sation which failed to distinguish between a “black economy” and a cash-based economy, he’s going to punch you right in the nose when you tell him you stand for the farmer and the working man. After BJP’s debacles in the June bypolls, I wrote that glib national TV commentators and their talk show guests had suddenly awoken to what they called “farmers’ issues” as being impor- tant to the elections. The wisdom of morons! Actually, like the economy, it IS the farmers, Stupid! Their “distress” is the country’s distress— yours and mine. These folks are not just another wrapped item in your shopping basket of goodies. They ARE the issue, and they are the force that combined under common banners cutting across caste and religious divides to march on Delhi. They are not “playing victim” as some would have us believe. According to Sujan Hajra, chief economist at Anand Rathi, a financial analysis firm, India has one of the world’s highest food IT IS THE FARMER, STUPID! Inderjit Badhwar Letter from the Editor E Thefarmers’ “distress”isthe country’sdistress— yoursandmine. Thesefolksare notjustanother wrappeditemin yourshopping basketofgoodies. TheyAREtheissue, andtheyarethe forcethatcombined cuttingacrosscaste andreligiousdivides tomarchonDelhi. | INDIA LEGAL | December 10, 2018 3
  3. 3. spoilage rates; one of the world’s lowest per capi- ta productivities and farmer incomes; poor rural roads affecting timely supply of inputs and trans- fer of outputs; inadequate irrigation systems; poor seed quality; inefficient farming practices; harvest spoilage causing over 30 percent of wastage and lack of organised retail and compet- ing buyers. Their grievances cut across identity lines—no returns on investment, loans they couldn’t repay, inadequate support prices, unrequited money from the sales of their cane, suicides and their kids dying in hospitals because of lack of oxygen. Farmers are part of India’s large unorganised sector. (There is abysmally low productivity in the farm quarter—50 percent workforce and just 16 percent GDP.) As Professor Arun Kumar, one of India’s best known international economists, notes, this (total unorganised sector) is 93 per- cent of total employment and 45 percent of total output. Data for this sector is not available in the routine because it is dispersed across the length and breadth of the country in tens of millions of small and cottage units which do not report their data to any agency. The largest component of the unorganised sector is agriculture, constituting 45 percent of the workforce and 14 percent of the total output of the economy. Data for agriculture is collected for each of the growing seasons and becomes available with a short time lag, but it is not collected for each quarter. The non-agriculture part of the unorganised sector constitutes 48 percent of the workforce and 31 percent of the total output. It is the data for this part that is not available for some years, Professor Kumar explains. One of the top de- mands of the farmers who marched to Parliament last week is implementation of the Swaminathan report. As one of the organisers told Scroll in a recent interview: “If they {the BJP} lose elections in all five states, then they will surely implement it,” (referring to the ongoing assembly polls in Madhya Pradesh, Rajasthan, Chhattisgarh, Telangana and Mizoram). E very Indian needs periodically to be reminded of just who Swaminathan is. After India became an independent nation in 1947, the highest import bill for the country was food grains. Late into the 1960s, India used to spend as much as `700 crore (a massive sum given exchange rates of those years and virtually no foreign exchange surpluses) only on import of food grains, this being the single largest outgo on foreign exchange. Enter Swaminathan, or “MS”, as his friends called him. This genius—and agricultural scien- tist—wrought a virtual miracle called the “Green Revolution” by introducing high-yielding varieties of seeds which doubled and tripled and quadru- pled production. “Basket case” India was soon to be transformed into a surplus country. From 1972 to 1979, he was director-general of the Indian Council of Agricultural Research. He was principal secretary, Ministry of Agriculture, from 1979 to 1980. He served as director-general of the International Rice Research Institute (1982-88) and became president of the Inter- national Union for the Conservation of Nature and Natural Resources in 1988. In 1999, Time magazine placed him in the “Time 20” list of most influential Asian people of the 20th century. The reason for the revival of his name today on the roads of rural India and in farmers’ marches in Mumbai and Delhi is that despite the Green Revolution in India, he had foreseen an agrarian crisis—“farmers’ distress” as it is popularly called in today’s headlines—many, many moons ago. He chaired the National Commission on Far- mers, and submitted five reports between Dec- ember 2004 and October 2006. Following from the first four, the final report focussed on causes of farmer distresses and the rise in their suicides, and recommended addressing them through a holistic national policy for farmers. The findings and recommendations encompass issues of access 4 December 10, 2018 Letter from the Editor EveryIndianneeds periodicallytobe remindedofjustwho MSSwaminathan (above)is.This geniuswroughta virtualmiracle calledthe“Green Revolution”andhe hadforeseenan agrariancrisis— “farmers’distress” asitispopularly calledintoday’s headlines—many, manymoonsago.
  4. 4. to resources and social security entitlements. This was over 12 years ago. And most of what he pre- dicted came true while his recommendations gathered dust! Today, leaders of agitating farmers’ organisations across the country have re-discov- ered these reports and are demanding execution of their recommendations. How many people, including bureaucrats in the finance and agriculture ministries have actu- ally read Swaminathan’s report or are even aware of the contents? For their edification, I reproduce below excerpts of a summary of the report which stressed constantly on modernising farming methods and social protection for landless farm- ers through greater governmental involvement. Its focus was on faster and more inclusive growth. If only someone had been listening! The key issues were: A medium-term strategy for food and nutrition security in the country in order to move towards the goal of universal food security over time; enhancing productivity, prof- itability and sustainability of the major farming systems of the country; policy reforms to substan- tially increase flow of rural credit to all farmers; special programmes for dryland farming for farmers in the arid and semi-arid regions, as well as for farmers in hilly and coastal areas; enhanc- ing the quality and cost competitiveness of farm commodities so as to make them globally compet- itive; protecting farmers from imports when international prices fall sharply and empowering elected local bodies to effectively conserve and improve the ecological foundations for sustain- able agriculture. M ore than a dozen years ago, Swami- nathan actually used the term “farmers’ distress”. He wrote: “Agrarian distress has led farmers to commit suicide in recent years. The major causes of the agrarian crisis are: unfin- ished agenda in land reform, quantity and quality of water, technology fatigue, access, ade- quacy and timeliness of institutional credit, and opportunities for assured and remunerative mar- keting. Adverse meteorological factors add to these problems. “Farmers need to have assured access and control over basic resources, which include land, water, bioresources, credit and insurance, technology and knowledge management, and markets. The NCF recommends that ‘Agriculture’ be inserted in the Concurrent List of the Constitution.” What has now erupted as the most volatile social-economic issue facing the nation has been in the making for decades. Despite more than half of India’s 1.3 billion population making their living from farming, their contribution to the overall economy has been diminishing, notwith- standing increases in output. This actually trans- lates into a full-blown crisis and cannot be dis- missed as what TV pundits and glib politicians are calling farmers’ “issues”. A national crisis is not just an “issue” but a cataclysmic phenomenon with drastic political and social consequences in which the very foundation of the economy can be devastated. Twitter: @indialegalmedia Website: Contact: | INDIA LEGAL | December 10, 2018 5 A STIR FOR RIGHTS (Top and above) Farmers from different states at the Kisan Mukti March in Delhi. Led by the All India Kisan Sangharsh Coordination Committee, they were demanding loan waivers and better prices for their produce UNI UNI
  5. 5. ContentsVOLUME XII ISSUE4 DECEMBER10,2018 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Associate Editor Sucheta Dasgupta Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 December 10 , 2018 Can India Handle Another 26/11? Ten years after the Mumbai attacks, India’s security network is far from prepared to counter another strike, hobbled as it is by petty politics and lack of co-ordination LEAD 14 Formula for Liberty In a forward-looking judgment, the Delhi High Court has held that a request for anticipatory bail is not a relevant factor while considering regular bail COURTS 18 For Whom the Bar Strikes In a rare show of solidarity, advocates in Gujarat went on strike over the transfer of Justice Akil Kureshi to the Bombay High Court, and even met Chief Justice Ranjan Gogoi on the issue 20
  6. 6. Auditing the Auditors REGULARS Followuson Twitter:@indialegalmedia | INDIA LEGAL | December 10, 2018 7 Cover Design: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Delhi Durbar ...................12 International Briefs..........28 Media Watch ..................33 Satire ..............................50 The crash of some leading British firms has forced the Competition and Markets Authority to launch an examination of the auditing sector’s Big Four companies 48 Caught Napping The trail of destruction left behind by Cyclone Gaja has shown up Tamil Nadu’s disaster management department as inefficient and the centre as callous to the state’s needs 36 How to Green the Valley 40 An amicus curiae was fixed by the top court to examine a National Green Tribunal order that requires the Karnataka government to plant 10 trees for every one felled Don’t Muzzle the Messenger 42 The Madras High Court has quashed a case file by Jayalalithaa against India Today’s Tamil edition, saying if the Press is gagged, democracy will be imperilled Freeway for a Few 46 Lawyers have petitioned the Karnataka High Court, demanding that they and farmers be exempted from paying at national highway toll plazas Reality and Perception Lawyers in Delhi, upset at their fraternity being shown in a bad light in Aaj Tak’s television promo, have sent a legal notice to the channel 22 Professional Etiquette The practice of law has a moral compass which is key to maintain- ing independence and accountability, and instilling trust in clients 24 The Union ministry of women and child development plans to use the Nirbhaya Fund to set up over 1,000 fast-track courts 26 ENVIRONMENT STATES GLOBALTRENDS A mandatory online form for students appearing for the Gujarat Boards asks only Muslims among them to identify their religion, sparking a controversy Faith before Merit 38 No More Justice Delayed FOCUS For the first time, the Supreme Court has directed that government agencies and officials who look the other way while polluters destroy the environment will be prosecuted with fines or prison terms 30Account for the Poisoning SPOTLIGHT LEGALEYE Final Gift Honoured The government proposes social support up to `5 lakh to organ donors’ kin and `1 lakh to hospitals as a means to boost the practice 34 MYSPACE
  7. 7. 8 December 10, 2018 “ RINGSIDE “...he should exercise due restraint becom- ing of the office of the prime minis- ter....he is the prime minister for all citi- zens of our country and his conduct must be worthy and con- sistent with that obligation....” —Former PM Manmo- han Singh on Modi’s speeches in states not ruled by the BJP “My father was an atheist and religion played no part in his life. He was cremated according to his wishes and so was my mother a few months later.” —Nirmala Kurien, daughter of Dr Ver- ghese Kurien, on alle- gations that he used Amul's money to fund religious conversions “We have always maintained the Congress has this proclivity for soft Hindutva and com- promising with com- munalism. This has been the history of the Congress and we have always fought against that....” —CPI(M) general secretary Sitaram Yechury at a press meet in Delhi “I told her, I can make it a crown of roses. And I think I have made it a crown of flowers, if not roses.” —Supreme Court judge Justice Kurian Joseph while refer- ring to his wife’s objection to his decision to become a judge in his farewell speech on November 29, 2018 “I would rather sug- gest there should be no mandir or no masjid constructed… An institute or some other project should be thought of to build… which will not hurt anyone’s feelings....” —Minister of State for Social Justice and Empowerment Ramdas Athawale on the Ram Mandir “I was in the Army.... Every soldier knows what another soldier is thinking. Who has taught to kill soldiers by taking them by surprise? Who taught to attack peo- ple holding a reli- gious congregation in Rajasansi Amritsar? We, Punjabis, know how to give a befit- ting reply to such forces….” —Punjab Chief Minister Amarinder Singh at the Kartarpur Corridor function in Punjab “I don’t know when I will be transferred. I will not lose my job, but the threat of transfer is there....” —Governor Satya Pal Malik on his decision to dissolve the J&K assembly “It is in our best interest to heed the advice of the Constitution. If we do not, our hubris will result in sharp descent into chaos. The Constitution has become an integral part of the lives of the Indian people. This is not an exaggeration, one need only to look at the astounding variety of issues that the courts hear daily.” —CJI Ranjan Gogoi at a function to celebrate Constitution Day (November 26) in New Delhi
  8. 8. While commuting the death penalty imposed on a man convicted of killing three people and attempting to kill a fourth, the Supreme Court said the question of whether the accused was capable of reformation was not considered at the time of trial. The convict had been awarded the death sentence by a trial court in 2013, which was confirmed by the Chhattisgarh High Court in 2014. An apex court bench of Justices Kurian Joseph, Deepak Gupta and Hemant Gupta observed that a posi- tive change in a death row convict “should also weigh with the court while taking a decision as to whether the alternative option is unques- tionably foreclosed”. The bench also discussed the validity of the death penalty laid out in the Indian Penal Code and upheld it by a 2:1 majority. Justice Joseph gave the dissenting opinion, inter alia, on the grounds that the death penalty has failed to act as a deterrent. Courts | INDIA LEGAL | December 10, 2018 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team Justice Kurian Joseph retires The petition by CBI chief Alok Verma seeking quashing of the centre’s deci- sion to divest him of his charge has been listed for further arguments on December 5 in the Supreme Court. Verma retires on January 18. He has been on forced leave since October 24 when the centre, in a midnight decision, divested him of his cha- rge. On November 29, a bench headed by Chief Justice Ranjan Gogoi resumed hearings on Verma’s plea. The bench heard submis- sions by senior advocates Fali Nariman, Rajeev Dhavan, Kapil Sibal, Indira Jaising and Dushyant Dave—all of whom said that the centre had violated the law by sending Verma on leave without referring the complaints against him to a three-member panel of the prime minister, chief justice of India and leader of the opposition which is mandated to appoint, transfer, or suspend a CBI direc- tor. Attorney General KK Venugopal, appear- ing for the centre, rebutted the arguments, saying that while the panel has a recom- mendatory role, the government is the final appointing authority, and so, Verma’s ouster was within the prerogative of the Executive. The Supreme Court pulled up the Karnataka government for the tardy progress of the probe into the murder of scholar MM Kalburgi, more than three years ago in Dharwad, Karnataka. The apex court was hearing a plea by Kalburgi’s wife, Uma Devi, who had sought an SIT probe into the case. The Court said the Karnataka government was “doing nothing” and directed it to submit a report within two weeks about the possi- ble time frame by which the inves- tigation could be completed. Death penalty debate revived in apex court The Supreme Court slammed the Bihar govern- ment for going “soft” on charges of abuse of children at 17 shelter homes and transferred the probe into all 17 cases, flagged in the Tata Institute of Social Sciences report, to the CBI. Until now, the CBI has been probing only the Muzaffarpur shelter home case. The Bihar government’s plea against this move did not find favour with the bench which said that: “The attitude of the state is extremely unfortunate, tragic and shameless, to say the least…the police is not doing its job.” The bench also told the state government to promptly provide any assistance requested by the CBI, and asked the CBI to file a status report by January 31, 2019. On his last working day in the Supreme Court (November 29), Justice Kurian Joseph was given a warm send-off by the members of the bar and the bench. At the function, Chief Justice Ranjan Gogoi made an emotional speech and wished his brother judge well. Justice Joseph received praise from several oth- ers, too, for “handling cases with sensitivity and a human touch” and for being “the most popular judge with a smile”. Justice Jos- eph was elevated to the Supreme Court in March 2013, after serving as a judge of the Kerala High Court and later as chief justice of the Himachal Pradesh High Court. CBI to take over Bihar shelter home cases SC hears CBI vs CBI matter; further arguments on Dec 5 Expedite Kalburgi probe, says SC
  9. 9. ISTHAT A person wants an FIR lodged at the local police station, but the police- men refuse to oblige. What legal action can he take so that there is prompt response? Every person has the right to file a complaint at a police station and the concerned police official/s must reg- ister an FIR if the offence is cognis- able. However, on being refused, he can send a written complaint to the senior police officer, such as the superintendent of police or even the police commissioner. If, after going through the complaint, the senior officer finds that the offence is indeed cognisable, he may investi- gate the issue himself or direct his subordinate to file the FIR and start the investigation. However, if nothing is done even at this stage, a complaint can be filed with the judicial magistrate/metro- politan magistrate, who can then order that an FIR be lodged and investigation started. What is the legal procedure to be followed in case a cheque is dishonoured and returned by the bank due to insufficient funds in the person’s account? Dishonour of cheques is quite common and this happens due to several reasons: wrong name, wrong account number, overwriting, insufficient funds, the signature registered with the bank not matching with the one on the cheque, etc. However, if a cheque is dishonoured due to insufficient funds in the bank account, an affected person can file a suit for recovery, which is a summary pro- ceeding under Order XXXVII of the Code of Civil Procedure, 1908. Another method is to file a criminal com- plaint under Section 138 of the Negotiable Instruments Act, 1881. But before filing the complaint, a statutory notice must be given to the other party. A Cheque Bouncing Case —Compiled by Deepankar Malviya Lodging an FIR Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis If a frivolous FIR has been filed to spite someone, can the affected person seek legal remedy? If a frivolous FIR has been filed, the affect- ed person can take the following steps: An application can be filed in the high court under Section 482, CrPC, for qua- shing the frivolous FIR. The Section em- powers the high court to prevent the ab- use of any court process and secure the ends of justice. There are several grounds on which a frivolous FIR can be qua- shed—the act/omission for which the FIR was filed does not constitute an offence, the act/omission never took place or the FIR contains baseless allegations. Another method is by filing a writ peti- tion under Article 226 of the Constitution under which the high court can issue the writs of Mandamus or prohibition. The third option is to file a counter-FIR against the same person. Action Against Frivolous FIRs ? Twitter: @indialegalmedia Website: Contact: A person books a commodity on an e-commerce site. He pays the money but does not receive the product or gets a damaged product. Can he take legal action? The Consumer Protection Act, 1986, extends pro- tection to the consumer on the sale and purchase of a commodity or service on an e-commerce platform. A consumer case can be filed provided the money has already been paid for goods or services booked online. Therefore, in this case, the affected person can easily file a complaint in the appropriate consumer forum under the Consumer Protection Act, 1986. 10 December 10, 2018 Online Shopping Gone Wrong
  10. 10. Mohammad Azharuddin, the former Indian cricket captain who started his political innings with the Congress and became an MP from Uttar Pradesh’s Moradabad seat in 2009, finds himself sidelined by the party. Azharuddin’s last truly political outing was in the 2014 Lok Sabha polls when the Congress fielded him from Rajasthan’s Tonk seat. The switch from Moradabad was because local leaders were opposed to his renomination. Azhar was among hundreds of other Congress candidates in 2014 who got swept away by the Modi wave. Ever since, he has been trying to stay politically relevant. Sources say the party had asked him to make space for himself in his home state of Telangana where the Congress was wiped out in the Lok Sabha and assembly polls due to the popularity of Telangana Rashtra Samiti chief K Chandrashekhar Rao—the architect of the newly carved state. The Congress wanted to pit Azhar as its Muslim face in the state against AIMIM chief and Hyderabad MP Asaduddin Owaisi. Azhar wanted to be fielded in the assembly polls from a safe seat in Secunderabad but his hopes were dashed by the Congress leadership. The former skipper was negotiating with a close kin of Rao to facilitate his entry into the TRS when a desperate Congress high command decided to appoint him as working president of the state unit. 12 December 10, 2018 An inside track of happenings in Lutyens’ Delhi If the famous judges’ press conference in January this year was unprecedented, then one of its key participants, Chief Justice Ranjan Gogoi, pulled off yet another unique event last week. On the eve of Constitution Day, the chief justice of India hosted a dinner at the judges’ lounge of the Supreme Court which had in attendance Vice-President M Venkaiah Naidu and Prime Minister Narendra Modi. Other judges of the top court and chief justices of Bangladesh, Myanmar, Thailand, Nepal and Bhutan, who were in New Delhi to attend the BIMSTEC confer- ence, were also present. This was perhaps the first time ever that an incum- bent prime minister visited the Supreme Court premises to dine with the chief justice of India. The invite to Modi has expectedly raised eyebrows, particularly among those who had lauded the judges at the January presser for resisting political interference in the higher judiciary. Senior advocate Indira Jaising even posted images from the dinner on Twitter with pithy comments –”Deeply Disappointed” and “Pretty pic- ture, agree?” With the Supreme Court, especially its bench headed by Chief Justice Gogoi, now a target of daily derision and ridicule by senior BJP leaders for not expediting the Ayodhya title suit proceedings, speculation about what the head of the Judiciary discussed with the head of the Executive has already gained momentum. The dinner also came at a time when Chief Justice Gogoi’s bench is hearing sev- eral other sensitive cases, including CBI Director Alok Verma’s petition, which have put the Modi government in an embar- rassing spot. The chief justice also had a one-on-one interaction with the prime min- ister following the dinner. Curiously, Attorney General KK Venugopal, the gov- ernment’s top law officer, left the Supreme Court premises much before Modi’s delayed arrival at the venue. Senior Congress leader Kapil Sibal has done it again. Months after his appearance and contro- versial arguments in the politi- cally polarising Babri Masjid- Ram Janmabhoomi title suit left the Congress leadership red- faced, the veteran lawyer has again forced his party into an embarrassing spot. While Congress President Rahul Gandhi is leaving no opportunity to brand Anil Ambani as the biggest beneficiary of the Modi government’s alleged crony cap- italism, Sibal has been hired by Reliance Communication— owned by Anil Ambani—to appear in a legal dispute against Reliance Jio— run by Mukesh Ambani—in the Supreme Court. Sibal’s appear- ance for Reliance Communication in the top court on November 27 led journalists to question Congress spokespersons on how the party viewed one of its most prominent legal hawks rep- resenting the one industrialist Rahul Gandhi loves to hate. Offi- cially, the party has decided to stick to the line that the media must view Sibal’s professional commitments as the country’s top-billing lawyer, separately from his political work as a Con- gress member. Off the record, though, many party leaders have been expressing their discomfi- ture on the issue. Congress leaders are also joking about the possibility of Sibal appearing as Anil Ambani’s lawyer in the scores of defamation cases the controversial, debt- ridden tycoon has slapped against various media houses—includ- ing the Congress- affiliated National Herald—for their report- age on the Rafale deal. DOUBLE ROLE DIN OVER DINNER TAKING GUARD
  11. 11. | INDIA LEGAL | December 10, 2018 13 Twitter: @indialegalmedia Website: Contact: Delhi Durbar There is an official list of VIPs which also includes spiritual figures and those who occupy certain official posi- tions in government and public sector. The hierarchy and who qualifies for special treatment can be seen at the Reserved Lounges maintained by the Airports Authority of India at airports across the country. Only two religious figures—Shankaracharya of Dwarka and Mata Amritanandamayi—make it to the list, which means others like Sri Sri and Sadhguru, despite their high profile, political clout and celebrity sta- tus, are missing from the access list. Other relatively unknown VIPs who make it because of occupying a cer- tain post include chairman, All India Council for Technical Education, and chairman, Appellate Tribunal for For- feited Property. These worthies rank above the Solicitor General of India! HOLY HIERARCHY In the run-up to crucial state elections, it was inevitable that fake news and distorted facts would show an incre- ase but even by that reckoning, Amit Malviya, head of the BJP’s IT cell, has taken cut-and-paste propaganda to a new low. On November 27, Malviya tweeted a video of Manmohan Singh in which the former prime minister is heard saying “the governments of Madhya Pradesh and Chhattisgarh were very good”. The clip Malviya sent appeared to show Singh praising the BJP-ruled state governments and he then added a caption which read: “Prime Minister Dr Manmohan Singh contradicted Rahul Gandhi, says gov- ernments of Madhya Pradesh and Chhattisgarh were ‘very good’… Waters down everything Congress president has been saying over the last few days!” Once the clip went viral, and the original speech was uploaded, it turned out to be a crass and clumsy example of political edit- ing. In the actual speech, Singh was not praising BJP governments in Madhya Pradesh and Chhattisgarh. He was, in fact, advising Prime Mini- ster Modi to not discriminate against non-BJP ruled states. His original statement said: “My relationships with the government of Madhya Pradesh, the government of Chhattisgarh were very good.” He was talking about his tenure as prime minister when these states were under BJP rule. FAILING THE TEST An audit, commissioned by the Central Information Commission, has revealed some startling facts about the transparen- cy of information on the websites of min- istries, official agencies, universities, banks and public sector undertakings. The audit report, released last week, showed that 35 percent of all the govern- ment bodies audited got an “E” grade, the lowest ranking possible. The informa- tion meant to be available on the websites under Section 4 of the RTI Act, was as sparse as possible and pointed to blatant non-compliance in disclosing basic infor- mation about their functioning and admin- istration, including transfers, allocation and utilisation of funds, trips abroad by officials and even lacked information on meetings held and decisions taken. Ironically, the worst offenders, according to the report, are the Central Vigilance Commission and the Election Commission. The “E” grade ranking also went to a number of ministries as well as Punjab National Bank, in the eye of the storm for loans to prominent absconders. In fact, the audit would have produced even more shocking results had everyone responded to the proforma sent out by the two-man audit team. Of the 2,092 public authorities who were sent the ques- tionnaire, only 830 responded. What the audit clearly shows is that many of India’s public institutions have a lot to hide, RTI or no RTI. FAKING THE NEWS
  12. 12. Lead/ Security 14 December 10, 2018 RE we better prepared for another attack like 26/11? Unfortunately, the answer is not simple as it is inter- woven with the interna- tional environment, and internal political and structural dynamics. On the 10th anniversary of the Mumbai attacks of November 26, 2008, in which 166 people lost their lives, rela- tives of the victims came together at the Gateway of India, facing the iconic Taj Mahal Hotel which bore the brunt of them. The media went on a high, bash- ing Pakistan and its “deep state” while recounting details of the attack. INTERNATIONAL DIMENSION Internationally, Israel and the US came out with strong statements of solidarity with the victims of the attack and India. US Secretary of State Mike Pompeo in his message said that the fact that the perpetrators of the attack had not been prosecuted so far was “an affront to the families of the victims”. He called upon all countries, “particularly Pakistan, to uphold their UN Security Council obli- gations to impose sanctions against the terrorists responsible for this atrocity, including LeT and its affiliates”. International solidarity, particularly from the US and Israel, is expected as Can India Handle Even10yearson,thecountryisnotfullypreparedforanother terroristattackandisboggeddownbypettypoliticsandlack ofco-ordinationbetweenvariousagencies atthegrassroots By Col R Hariharan A NOT ON THE SAME PAGE (Left) While Maharashtra Governor Vidyasagar Rao (in the middle) and CM Devendra Fadnavis (in blue jacket) paid tributes to martyrs on 26/11, Pakistani minister Fayyaz ulHasan (below) attended a JuD function across the border UNI
  13. 13. | INDIA LEGAL | December 10, 2018 15 their citizens were victims of the attack; moreover, they had been in the forefront of the international war on jihadi ter- rorism. Despite this, in the world of realpolitik, national interest is invariably the sole consideration for nations aiding other countries in fighting their wars, particularly terrorism. So India has to fight its own war on terrorism. There is unlikely to be any change in Pakistan’s attitude in prosecuting Hafiz Saeed and six others involved in the Mumbai attack. This was evident from the presence of Punjab minister Fayyaz ul-Hasan at a function organised by the Jamat-ut-Dawa, founded by Saeed, on November 26, 2018. The backdrop on the stage was a huge blow-up of Elias Davidsson, author of the book, The Betrayal of India: Revisiting the 26/11 Evidence. Hasan’s presence at the func- tion lends credibility to Pakistan’s right- wing narrative of how India orchestrat- ed the whole Mumbai “drama” in November 2008. This was not unexpected. The Pakistan Army calls the shots regarding defence and India policies and uses trans-border terrorists as a strategy to bleed its neighbour. In fact, there are clear indications of Pakistan trying to revive Khalistani ter- rorism in Punjab, leveraging this move- ment’s connections in Canada, Italy and the UK. On November 4, 2017, the Punjab police arrested five men said to be part of a Khalistani module that killed RSS members in Ludhiana, Dera Sacha Sauda followers and a Christian pastor in October-November, 2017. The suspects, on interrogation, confirmed that the Khalistan Liberation Force car- ried out the killings at the bidding of Pakistan spy agency, the Inter Services Intelligence. Since then, Punjab police and intelligence agencies have scaled up their vigilance on Khalistani activities. According to the Punjab police chief, tech-savvy young men are influenced by Khalistan separatist propaganda on social media. The grenade attack by two Khalistani terrorists on a Nirankari sat- sang in a village near Amritsar on November 18 is a strong reminder that Punjab could emerge as an option for Pakistan-supported terrorist operations in the near future. So the question really is not our readiness to face yet another Mumbai-type attack, but to face a mas- sive attack launched by educated, tech- savvy and indoctrinated terrorists and aided by inimical powers. And the way to face them is to overcome our core weaknesses in the war against terror and structurally improve our systems. IMPROVE SYSTEMS The abysmal response of the counter- terrorism apparatus to the 26/11 attacks showed that the national leadership had failed to establish a fool-proof system to handle terrorist threat. In fact, these attacks showed the same systemic weak- nesses seen in the earlier Mumbai blasts case of 1993 and the parliament attack in 2001. The 26/11 episode revealed that there were glaring systemic weaknesses, both at the state and central levels. There was lack of co-ordination in intelligence gath- ering and dissemination which could forewarn and help agencies respond before a terrorist strike. After an attack takes place, the security response is often uncoordinated, tardy and delayed. CO-ORDINATION OF INTEL After the 26/11 attacks, Union Home Minister P Chidambaram mooted a radi- cal overhaul of India’s security and intel- ligence apparatus. The National Intel- ligence Grid (NATGRID), a network Another 26/11?DASTARDLY ATTACK Terrorist Ajmal Kasab during the 26/11 attack in Mumbai in 2008 ThereareclearindicationsofPakistan tryingtoreviveKhalistaniterrorismin Punjab,leveragingthismovement’s connectionsinCanada,ItalyandtheUK. ThosearrestedhaveconfirmedISI’shand.
  14. 14. 16 December 10, 2018 to collate data from the databases of var- ious agencies and ministries, came up in 2016. NATGRID’s data is now available to 11 central agencies, including the Research and Analysis Wing and the Intelligence Bureau. Two phases of NAT- GRID have been implemented and two more, related to banking transactions and internet usage, are in the offing. The National Investigation Agency was creat- ed on December 31, 2008, to combat ter- ror. Its director-general, YC Modi, has claimed it is a success story with a con- viction rate of 95 percent in 165 of the 185 cases registered since its inception. However, the National Counter Terrorism Centre (NCTC), modelled on the lines of the National Counter-terror- ism Center of the US and meant to be receiving actionable intelligence inputs, has run into rough weather due to polit- ical wrangling. Many chief ministers see it as an instrument of the centre to poach on the preserve of states where public order and policing are concerned. This stalling is a major failure in intelli- gence sharing on a real time basis between states and the centre. State policing continues to be the weakest link in national security. Many states have not implemented the recom- mendations of successive police com- missions to improve the quality of polic- ing. So, after 2008, though the centre allocated more funds to improve and strengthen state police forces, their capability varies widely from state to state. MARITIME SECURITY The fact that 10 LeT terrorists could travel by sea unchecked for four days and infiltrate Mumbai to carry out the 26/11 strikes exposed the vulnerability of our maritime security. To rectify this, the Coastal Security System was refur- bished with more fund allocations for coastal infrastructure, including police stations and radar installations. According to the Indian Navy web- site, at the apex level, the National Committee for Strengthening Maritime and Coastal Security (NCSMCS) co- ordinates all matters related to maritime and coastal security. Joint Operations Centres have been set up by the Navy in Mumbai, Visakhapatnam, Kochi and Port Blair, manned by the Navy, Coast Guard and marine police. They act as command and control hubs for coastal security. As a result, inter-agency co- ordination between nearly 15 national and state agencies has improved. Also, a chain of 74 automatic identification sys- tem receivers, complemented by 46 coastal radar installations, cover the entire coast. After Prime Minister Narendra Modi came to power, a proposal to cre- ate a National Maritime Authority to ensure cohesive policymaking and effec- tive co-ordination for coastal security figured in the president’s address to Parliament in June 2014. However, this Lead/ Security TREAD CAUTIOUSLY The scene outside the Nirankari centre in Amritsar’s Rajasansi village where an attack took place in November; (below) Pakistani PM Imran Khan with Navjot Singh Sidhu at the inauguration of the Kartarpur Sahib Corridor twitter/@MalikDilawar
  15. 15. | INDIA LEGAL | December 10, 2018 17 FAR FROM FOOL-PROOF In the absence of a National Maritime Authority, coastal security continues to be an ad hoc affair Twitter: @indialegalmedia Website: Contact: has not materialised so far; so NCSMCS continues to be an ad hoc solution. Overall, our coastal security is better than it was in 2008 but it is still a work in progress. Its weakness is the contin- ued neglect by states, reflected in the indifferent performance of coastal police personnel who lack marine capabilities. LEGAL ASPECTS The world over, governments have been grappling with enacting laws to handle terrorist threats. India is no exception. Our judicial process, never known for speedy disposal of cases, adds to the agony of enforcement agencies. There is lack of a viable counter-terrorism act. There is confusion in jurisdiction between multiple central and state secu- rity agencies. Cross-border issues, with political ramifications, also affect the apprehension and prosecution of terror- ists in sanctuaries abroad. The Indian Penal Code and the Code of Criminal Procedure, 1973, already contain provisions related to terrorist activity, including the offence of waging war against the government, sedition to bring hatred or contempt or inciting disaffection towards the government. These have been used in prosecuting terrorists involved in almost all cases of terrorist attacks, including the 1993 Mumbai blasts case and 26/11 terrorist Ajmal Kasab’s trial. After the assassination of Indira Gandhi in 1984, the parliament enacted in 1985 the terrorism-specific Terrorism and Disruptive Activities (Prevention) Act (TADA). It was used extensively to combat insurgency in Punjab. The Act defined “terrorist act” and “disruptive activities”, put restrictions on the grant of bail and gave enhanced power to detain suspects and attach properties. After widespread allegations of misuse, TADA was allowed to lapse in 1995. In 2001, after the terrorist attack on Parliament, the Prevention of Terrorism Act (POTA), 2002, was enacted. POTA covers political dissent, allowed pro- longed pre-trial detention and reversed the presumption of innocence of an accused. Misuse of some of its draconian provisions led to widespread protest and it was repealed in 2004. However, courts allowed investigation and prosecution of cases booked under TADA even after repeal of the Act. As a result, a number of cases are still pending and many accused are languishing in jails without trial. At present, the Unlawful Activities (Prevention) Act (UAPA), originally enacted in 1967, is used as the primary anti-terrorism law. It enables the State to impose reasonable restrictions on the rights to freedom of speech and expres- sion, peaceful assembly without arms and formation of associations or unions that threaten national sovereignty and integrity. However, it has been amended by Parliament five times. It was under the UAPA that five activists were recent- ly arrested in the Bhima-Koregaon case for alleged support to CPI (Maoist- Leninist) activities (it is a proscribed organisation). Since Independence, India’s integrity and unity have been threatened from time to time by separatists, left-wing extremists and terrorist organisations supported by Pakistan. However, its enactments to combat these disruptive forces lack clarity. Law-enforcing agen- cies, too, have to respect the constitution and be accountable for their actions to prevent misuse of Acts like the UAPA. Unfortunately, with party polemics vitiat- ing the political climate, we may continue to meander in combating the forces threatening our national sovereignty. —The writer is a retired officer of the Intelligence Corps and associated with the Chennai Centre for China Studies and the South Asia Analysis Group Thereislackofaviablecounter-terrorism act.Thereisconfusioninjurisdiction amongmultipleagencies.Cross-border issues,withpoliticalramifications,also affecttheapprehensionofterrorists. UNI
  16. 16. Courts/ Bail Application 18 December 10, 2018 HE Delhi High Court has ruled that the acceptance or rejection of anticipatory bail to an accused under Section 438, CrPC, is not a relevant factor while considering his regular bail plea under Section 437, CrPC. Section 437 provides for bail in cases of non-bailable offences and allows the court or a police officer the discretion to grant bail for a non-bailable offence that is not punishable with death or life im- prisonment. However, persons below 16 years, women and sick persons may be awarded bail even if the offence is pun- ishable with death or life imprisonment. Section 438, on the other hand, pro- vides for anticipatory bail which can be applied for in a high court or sessions court when a person apprehends arrest or has reason to believe that he may be arrested on a charge of having commit- ted a non-bailable offence. The power of the court to grant or refuse bail is discretionary and depends on the nature and gravity of the circum- stances in which the offence is comm- itted; the position of the accused vis-a- vis the victim and witnesses; the likeli- hood of him fleeing from justice; the likelihood of him repeating the offence and tampering with evidence or influ- encing witnesses, and so on. In this case, the Bench clarified the referred questions of law as follows: While considering a regular bail appli- cation under Section 437(1), the fact of the rejection or acceptance of the antici- patory bail application, is not germane. There are cases when the Investigating Officer (IO) may not arrest the accused, using his discretion, even after rejection of anticipatory bail by the high court. When a chargesheet is filed in such cases before the court/magistrate, it’s not open to the court to examine the correctness of the IO’s discretion. The magistrate/court is only concerned with the final report/chargesheet, as filed. On the issue of duration of an antici- patory bail application, the Court explained the current position of law through various precedents. In Gur- baksh Singh Sibbia v State of Punjab (1980), the Supreme Court held that the anticipatory bail granted by the Court should ordinarily continue till the trial of the case. On the other hand, in KL Verma v State (1998), it was held that anticipatory bail should be for a limited duration. In HDFC Bank Ltd v JJ Mannan (2010), the Supreme Court held that protection under Section 438, CrPC, is only till the investigation is completed and the chargesheet filed. These conflicting positions were noticed recently by the Supreme Court in Sushila Aggarwal v State (NCT of Delhi) & Anr (2018) and the issue was referred to a larger bench. Since that case is still pending, the High Court ref- used to delve into this question of law. On the question of whether the court can release an accused on bail when he has been chargesheeted without arrest under Section 376, IPC (rape), or any other offence punishable with life imp- risonment or death, the Court answered affirmatively but made it subject to cer- tain grounds. In such cases, the accused may be granted bail under Section 437 (1), CrPC, provided: (1) there are no rea- sonable grounds for the court to believe that the accused is guilty of an offence punishable with death or life imprison- ment; or (2) the accused is under the age of 16 years or a woman or sick. The existence of the above circums- tances merely enables the court to con- sider an application for grant of bail under Section 437(1), CrPC. However, the considerations which are relevant to decide whether to grant bail or not depend on the facts and circumstances of each individual case. Refusal of bail is a restriction of an individual’s personal liberty, a right granted under Article 21, which should not be unduly curbed. Arresting an accused before trial is a preventive measure, not a punitive one. Courts have time and again set precedents and articulated their stand on balancing an accused’s liberty with procedural requirements to facilitate justice. The current judgment is yet another example of this. Pitching for Liberty TheDelhiHighCourthassaidthatarequestforanticipatory bailisnotarelevantfactorwhileconsideringregularbail By Shivani Bhasin Twitter: @indialegalmedia Website: Contact: T STRIKING A BALANCE Justices IS Mehta (far left) and Vipin Sanghi were part of the Delhi HC bench in this case
  17. 17. Courts/ Turmoil in Gujarat HC 20 December 10, 2018 ARELY has the transfer of a High Court judge creat- ed the sort of upsurge wit- nessed when Justice Akil Kureshi of the Gujarat High Court was moved to the Bombay High Court. The Bar struck work and, in one voice, urged the apex court to reconsider its decision. It relented only after a meeting with Chief Justice Ranjan Gogoi. On October 29, the Supreme Court Collegium had recommended the trans- fer of Justice Kureshi, the second senior- most judge of the Gujarat High Court, to Bombay. It also recommended the elevation of Gujarat High Court Chief Justice R Subhash Reddy as a Supreme Court judge. Ideally, after Justice Reddy’s promotion, Justice Kureshi should have been made acting chief jus- tice. But, on November 1, the centre issued a notification appointing Justice A Dave to this post and asked Justice Kureshi to take charge in Mumbai on or before November 15. On November 2, the government issued a fresh notification, “in superses- sion” of the earlier one, and appointed Justice Kureshi to perform the duties of the chief justice of the Gujarat High Court till his transfer. So, in effect, Justice Kureshi was acting chief justice for a very short time. This reportedly came about after the CJI took up the matter with the government. On November 3, in an interaction with the media in the Supreme Court press lounge, Chief Justice Gogoi admitted to the “mistake” and said that it has been “cor- rected”. “Mistakes do happen,” he said. No sooner was it known that Justice Kureshi was transferred to Mumbai than speculation was rife in legal circles that the move was by the government to prevent him from taking over as the act- ing chief justice of the Gujarat High Court. The Gujarat High Court Advo- cates Association (GHCAA) called a meeting immediately after the news of his transfer on November 1 and passed a unanimous decision stating that it found no reason to justify his transfer from seniormost puisne judge of the Gujarat High Court to number five in the Bom- bay High Court “ostensibly in the inter- est of better administration of justice”. The resolution said that the “Bar be- lieves that such a transfer is unjustified and has no connection with better administration of justice. On the con- trary, it impinges on the independence of the judiciary. It also resolved to dep- recate and condemn the transfer”. Not only did it then decide to strike work indefinitely, but it decided to chal- lenge the transfer through a writ peti- tion. Yatin Oza, president of GHCAA, told India Legal: “The urgent meeting saw a record attendance and it was felt that injustice had been done to a judge of immaculate professional credentials.” Twenty senior advocates of the Guj- arat High Court in a letter made a plea “with a feeling of deep anguish and dis- may” to the five-member Supreme Court Collegium to reconsider the transfer decision. The letter stated that Justice Kureshi was currently the seniormost judge of the Gujarat High Court after Justice MR Shah was recommended for elevation to the Supreme Court and Justice KS Jhaveri who is currently the chief justice of the Orissa High Court. “Justice Kureshi is one of the finest judges of the High Court and is respect- ed by all for his intellect as well as for his dignified conduct both on and off the Bench...even a brief look at his judgments would make it apparent that he decides without fear or favour, as indeed every judge must.” The letter points out that there were whispers going around for quite some time that InarareshowofsolidarityoverthetransferofJusticeAkilKureshitoBombayHighCourt,theBarin thestatewentonstrikeandrelentedonlyaftermeetingChiefJusticeRanjanGogoi By RK Misra in Gandhinagar R Rooting for a Judge UNFAIR TREATMENT Justice Akil Kureshi of the Gujarat High Court was given the transfer order
  18. 18. Justice Kureshi would be sidelined because many of his judgments did not find favour with the present dispensa- tion. “The sudden transfer of a senior judge, otherwise in line for appointment as acting chief justice of our court to puisne judge at number 5 in seniority in another court, sends an absolutely wrong signal, affects the morale of inde- pendent judges and does great disserv- ice to the institution,” the letter said. It reiterated that in the past, the country has witnessed attempts by an assertive Executive to subvert and over- whelm the Judiciary as it was the only institution which could rein in the for- mer’s misuse of power. “An individual judge wages a lonely battle at great sac- rifice and risk. If at times like these, the institution does not stand behind a judge as his or her pillar of strength and lend support, it would be failing in its constitutional duty at a crucial moment in our country’s history,” it stated. The GHCAA president, who along with his office-bearers called on Chief Justice Gogoi and had more than an hour’s meeting, refused to divulge the details, but said that their decision to postpone their strike should be indica- tive enough. “The meeting was con- structive,” he added. Lawyers, across the board, have nothing but praise for Justice Kureshi. “Even as a lawyer, soft-spoken Justice Kureshi’s integrity was above board. He is a rock-solid judicial person. It has never mattered to him who a person is, whether you are the juniormost or the seniormost. He is a judge of meticulous credentials, unimpeachable integrity and unassailable grace,” said legal lumi- nary Krishnakant Vakharia. Another legal veteran Sudhir Nanavaty too had nothing but praise for him. S enior advocate and former presi- dent of the Supreme Court Bar Association Dushyant Dave termed the transfer of Justice Kureshi as the last straw on the camel’s back and voiced concern about whether the Judiciary could recover from this move to assert its strong independence and impartiality, at least in Gujarat. “One really wishes that the Collegium, espe- cially of the extraordinary calibre as at present, would venture to cross-check the input or materials that concerned authorities may have placed before it from independent sources, especially members of the Bar and former Supreme Court judges who came from Gujarat High Court,” he stated. Oza said that Justice Kureshi was being penalised by the present govern- ment for his judicial pronouncements. These pertained to the Lokayukta case in which he had ruled against the Narendra Modi-led Gujarat government by upholding the decision of the gover- nor in appointing retired Gujarat High Court judge RA Mehta to the post and for his decision to send Amit Shah, now BJP president, to judicial custody in the Sohrabuddin alleged fake encounter case. “The Lokayukta order of the Guj- arat High Court was subsequently up- held by the Supreme Court,” he said. Numerous other lawyers echo this line of thought. On his part, Justice Kureshi remains unperturbed. He has shunned all media efforts to seek his views and dutifully taken up his new charge in Mumbai. The highly respected judicial officer has a Gandhian legacy. His grandfather, Abdul Kadir Bawazeer, was a close friend and lifelong associate of Mahatma Gandhi and came to India along with him from South Africa. His father, Hamid Kureshi, was born in Sabarmati Ashram and played in the lap of the Mahatma. He was a Gujarat High Court advocate and was head of the Sabarmati Ashram Preservation and Memorial Trust. He passed away in 2016. In keeping with his last wishes, he was cremated as he did not desire to waste space which would have been taken up by a ritual burial. With such an illustrious legacy, it is no wonder that Justice Kureshi too has made a mark in his field. | INDIA LEGAL | December 10, 2018 21 Twitter: @indialegalmedia Website: Contact: Justice Akil Abdul Hamid Kureshi was born on March 7, 1960. and retires on March 6, 2022. He passed BSc (Mathematics) in 1980 and LLB in 1983. He joined the Bar and started legal practice in July 1983. He was appointed Additional Central Government Standing Counsel from March 1992 to March 1998. He was assigned the entire work of the Central Administrative Tribunal, Ahmedabad. Besides han- dling many service matters for the government, he also looked into land acquisition cases, criminal matters and passport issues. He was appointed additional counsel for the income tax depart- ment in January 2000 and made additional judge of the Gujarat High Court on March 7, 2004. He was made a permanent judge on August 12, 2005. Makingamark UNITED STAND Advocates protesting against the transfer of Justice Akil Kureshi
  19. 19. of crime and violence against women, which is not expected from an esteemed institution like Aaj Tak”. The notice demands that Aaj Tak immediately stop the telecast of the promo, and publicly tender an apology and mentions that failure to do so will compel the BCD to take civil and criminal action against the channel and the concerned persons. It also demands that Aaj Tak disclose the names with complete addresses and other details of the institutions/mediums/ channels where the said pro- gramme has been telecast till date and to deliver all the edi- ted and original footage of the said programme to the BCD. KC Mittal, chairman, BCD, told India Legal that the promo “defames the entire legal fraternity. They must apologise or we are going to prosecute them for what they have done.” In its defence, Aaj Tak says the “promo highlights one of the funda- mental needs in society—to be honest and true. In the current state of affairs where credibility is the only answer to unsubstantiated noise, it is important to have brands like Aaj Tak that carry the flag of truth in an environment that is sensationally driven”. The “Saare Jahan Se Sacha” promo has three segments of about 45 seconds each. The other two show a doctor and real estate agent, respectively, in similar unflattering light. The doctor is seen forcing a patient to undergo a costly sur- gery that is not required; the realtor takes a middle class couple for a royal ride in the guise of selling them their dream home. There have been no protests from doctors, or realtors’ associations. Legal Eye/ Notice to Aaj Tak 22 December 10, 2018 AJ Tak says its campaign promo “Saare Jahan Se Sacha” represents the core of the India Today group- owned Hindi news channel— fearlessness, truth and no compromise. Lawyers in Delhi disagree. Last week, the Bar Council of Delhi (BCD) sent a legal notice to the TV chan- nel, claiming that its promo in which a lawyer is shown taking money from the relatives of one of the accused in a rape case defames the legal community. In the notice, the BCD said it has taken a serious view of the programme where in a series of promos titled “Saare Jahan Se Sacha”, one of the promos shows negotiations between a lawyer and his client (father of the accused) about a rape case during which the lawyer is sho- wn saying, “Bachche hain, galti ho jaati hai” (They are kids, they make mistakes) and shamelessly demanding fees and ex- tracting a bundle of notes from the client to do the needful to bail out his son. The notice, sent through Vishnu Sharma, secretary of BCD, said: “The above mentioned promo is indubitably defamatory, casting serious derogatory aspersions on the legal profession. The manner of presentation of a lawyer deni- grates, scandalises and causes disrepute to the legal profession in public, serious- ly damaging the image and reputation of members of the profession. The contents of the ad/promo of your TV programme is against the dignity, integrity and image of lawyers and demeans the whole issue LawyersinDelhi,upsetattheirfraternitybeingportrayedinabadlight inAajTak’sTVpromo,havesentalegalnoticetothechannel By Kunal Rao Twitter: @indialegalmedia Website: Contact: TOUCHING A RAW NERVE The Aaj Tak promos show a lawyer (above), a doctor and a real estate agent in poor light, causing protests from the Bar Council of Delhi ThenoticedemandsthatAajTak imme- diatelystopthetelecastofthepromo, andpubliclytenderanapology,otherwise theBCDwillbecompelledtotakecivil andcriminalactionagainstthechannel. The Jury Is Still Out A
  20. 20. Legal Eye/ Importance of Ethics 24 December 10, 2018 S per Black’s Law Dic- tionary, legal ethics, also termed as etiquette of the profession, refers to the minimum standards of appropriate conduct with- in the legal profession. This involves duties that its members owe to one another, their clients and courts. In gen- eral terms, legal ethics refers to the pro- fessional regulations that govern the conduct and moral lives of lawyers. The Preamble to the UN’s Basic Pri- nciples on the Role of Lawyers states: “…an independent legal profession is integral to upholding the rule of law. Whereas adequate protection of human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession.” The legal system of any government is executed through the administration of justice. A sound and healthy system for administration of justice is necessary to uphold the rule of law as mandated by the Constitution as well as to attain peace and stability in the nation. Courts, judges and lawyers, in turn, are said to be the torchbearers and true upholders of this system. As courts rely on the pleadings rendered by lawyers, this duty rests on their shoulders. The confidence of people may suffer a set- back and access to justice may be hind- ered if lawyers are unable to profess ethics in their professional conduct. There cannot be an exhaustive list of these desirables but honesty, fairness, equity, and integrity are a few qualities in the quest for justice. The code of pro- Thelegalprofessionisgovernedbyamoralcodethatisthekeytomaintainingindependenceand accountabilityandinstillingtrustamongclients By Ritu Gupta A A Question of Integrity UNI DISRUPTIVE TACTICS Lawyers of Patna High Court protest against the proposed Advocates (Amendment) Bill
  21. 21. fessional responsibility delineates con- duct that is “rational”, “judicious” and consistent with the “norms of the pro- fession and the rule of law”. The relationship between lawyers and clients is said to be based on the uberrima fides principle, which means utmost good faith. The abuse of this faith would not only block administra- tion of justice but be responsible for deterioration of the noble profession. Moreover, any such single incident puts a serious question mark on the entire fraternity, and professional ethics then become indispensable. The oft-quoted aphorism, “Not only must justice be done; it must also be seen to be done” is applicable to judges. At the same time, it is true for lawyers also while dispens- ing their duties as officers of the court. In the words of Immanuel Kant: “In law, a man is guilty when he violates the rights of others. In ethics, he is guilty if he only thinks of doing so.” In Noratanmal Chaurasia v MR Murli, the Supreme Court held that misconduct has not been defined in the Advocates Act, 1961, but professional misconduct envisages breach of disci- pline and may be defined as transgres- sion of some established and set stan- dards of practice. It is wide enough to cover omissions and commissions, whether done intentionally or uninten- tionally. Further, in Tulsidas Amanmal Karim, it was held that any conduct which, in any way, renders a person unfit for the exercise of his profession, or where he is likely to tamper with or embarrass the administration of justice by a high court or any subordinate court may be taken as misconduct. In this case, the following two tests were laid down: (1) the conduct of the advocate is such that he must be regard- ed as unworthy to remain a member of the honourable profession; and (2) the conduct of the advocate is such that he must be regarded as unfit to be entrust- ed with the responsible duties that an advocate is called upon to perform. The lawyer-client relationship too has various connotations and aspects. Some of them are: A lawyer is under a duty to act as per his capability and potential, and guide his client in the best possible manner. The action must be diligent and must be taken in a time-bound manner. He should treat the client fairly and protect his interests in the most befit- ting manner. He should avoid conflict of interest by not engaging with more than one client in the related matter. He should ensure the availability of resources needed to enable him to dis- pense his duties effectively. At every relevant point of time, the client should be updated and kept informed of the possible outcomes of the steps taken and the reasonable duration of time that may be involved in the process. He should advise the client in a swift and polite manner that is easily under- standable. The lawyer should maintain the confi- dentiality of the discussion and the doc- uments submitted to him, during the course of the pendency of litigation and even afterwards, till a reasonable time. He should act as per the trust and faith of the client. As the relationship with the client is contractual, reasonable professional fees should be charged from him as agreed with him. The lawyer is expected to resort to legitimate means to recover professional dues from the client. In their capacity as officers of the court, lawyers should not be complicit in misleading the court. If during the pendency of the case, a lawyer learns about any fraud or wrongful depiction by his client, he should convey the details to the court. Principle 14 of the UN’s Basic Principles on the Role of Lawyers says: “Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recog- nised by national and international law and shall at all times act freely and dili- gently in accordance with law and recognised standards and ethics of the legal profession.” Any deviant or defiant behaviour by lawyers brings disrepute to the entire legal community. Hence, professional ethics is the key to maintaining inde- pendence and accountability of the legal profession. The importance of such practices must be inculcated in budding lawyers when legal education is impart- ed to them. Professional bodies like Bar Councils must ensure inclusion of legal ethics in the curriculum of law universi- ties, faculties, schools and colleges. Bar Associations must take strict action against professionals who indulge in wrong practices. The principles of legal ethics would help build a justice deliv- ery mechanism that shall command respect from all stakeholders, and in turn, help establish the rule of law. —The writer is a professor at National Law University, Delhi | INDIA LEGAL | December 10, 2018 25 Twitter: @indialegalmedia Website: Contact: Theimportanceoflegalethicsmustbe taughttoyounglawyers.Professional bodieslikeBarCouncilsmustensureits inclusioninthecurriculumoflawuniver- sities,faculties,schoolsandcolleges.
  22. 22. Focus/ Fast-Track Courts 26 December 10, 2018 LARMED at the high pendency rates of child sexual abuse cases, the Supreme Court had, in late April, directed high courts across the country to set up panels of their judges to regu- late, monitor and fast-track trials under the Protection of Children from Sexual Offences (POCSO) Act, 2012. In July, the Union law ministry came up with a proposal to set up “special” fast-track courts across India to try rape cases as part of a larger scheme to strengthen infrastructure for better investigation and quick prosecution in such cases. Last week, the Union ministry of women and child development announced the setting up of 1,023 fast- track courts, using the Nirbhaya Fund, to dispose of pending cases of rape of children and women. “The Empowered Committee of Officers under the Nirbhaya Fund, under the chairman- ship of Secretary, Women and Child Development (WCD) ministry, has approved three major proposals which include setting up of 1,023 fast-track special courts (FTSCs) to dispose of pending cases of rape and POCSO Act across the country,” the WCD ministry said in a statement. Fast-track courts were first set up in 1999 to speed up delivery of justice and reduce pendency in courts, which across India and at all levels accounts for near- ly 33 million cases as of December last year. Though they were established for a limited period, they were given periodic extensions. The first fast-track court for crimes against women was established in 2013 in Delhi and was announced by the government after the December 2012 gang rape and murder of a young girl in a moving transport bus in Delhi. The government also set up a Nirbhaya Fund which is meant to support the ini- tiatives of governments and NGOs working for the safety of women. More than 80 percent of the Nirbhaya Fund corpus remains unused till now and it was felt there would be no better way to utilise the funds than to set up fast-track courts that will exclusively deal with rape, POCSO and related cases. Often, cases take decades to be resolved and the lengthy legal pro- cedures invariably give the accused ample opportunity to tamper with evi- dence, intimidate witnesses, abscond or even evade the justice system. This, in turn, encourages other potential crimi- nals to commit such offences, secure in the knowledge that they can get away with it. At the other extreme, there are cases where undertrials remain in prison for years without any legal aid even when there is a real possibility of the accused being found innocent, if his trial were expedited. The FTSC project has a total finan- cial implication of `767.25 crore. In the first phase, 777 FTSCs will be set up, and in the second phase, 246 FTSCs will be set up. They will be spread across nine states and Union Territories TheUnionministryofwomenandchilddevelopmenthasdecidedtousetheNirbhayaFundtosetup morethan1,000fast-trackcourtstodisposeofpendingcasesofrapeofchildrenandwomen By Sankalan Pal A Slow Lane to Fast Track PLEADING FOR HELP Children sitting on dharna in Lucknow against the rape of young girls in Uttar Pradesh UNI
  23. 23. and will include 100 in Maharashtra, 83 in Uttar Pradesh, while Tamil Nadu, Telangana and Andhra Pradesh will have 39, 38, and 34, respectively. Since 2013, even though the initia- tive of fast-track courts has seen some positive results, as many as 14 states still do not have fast-track courts. Assam, where crimes against women top the charts, is one of the defaulting states. Some states like Kerala, Gujarat, Karnataka and Madhya Pradesh, have shown no inclination to experiment with FTSCs. It is necessary to resolve women related offences in a speedy manner, and to ensure that, fast-track courts must be established across the country in all states and Union Territories. The smaller states must have a minimum of one fast-track court. But setting up of fast-track courts alone will not be enough unless other elements of the criminal justice system are also strengthened. Scientific investigations are a crucial aspect of investigation into sexual offences against women. Thus, it is nec- essary that more forensic laboratories and equipment are in place. However, there is a huge scarcity of forensic laboratories, as a result of which evi- dence gets lost and cases are delayed. The home ministry has announced a proposal for the procurement of foren- sic kits for sexual assault cases to kick- start usage of such kits in states and UTs through TOTs (Training of Trainers), capacity building/training for forensics in sexual assault cases, and strengthening of the state forensic science labs under the Nirbhaya Fund with a total financial implication of `107.19 crore. Also, a stipulated period of six months has been prescribed for appeals in rape cases for their speedy disposal. Special teams for the purpose of effi- cient investigation will also be set up to handle these cases, while rape crimes against minor girls will be dealt with even more strictly with capital punish- ment awarded to persons found guilty of raping minors aged under 12 years. Since these sensitive cases will have to be dealt with with a lot of care and attention, it is imperative that judicial officers of the highest calibre, who do not get swayed by media attention or other distractions, be appointed to these posts. Staffing these FTSCs with ade- quate manpower is also crucial as the number of judges is just not enough to handle the increasing volume of cases. S ince the traditional ways of complaint filing, which can be quite frustrating at times, are still followed, introduction of online filing of complaints and alternative arrange- ments of filing FIRs should also be considered by the government. Another drawback of the fast-track courts scheme is that there is nothing to dis- tinguish such courts from the regular courts. They function just like any other court under the same conditions that exist in regular courts—political intimi- dation, inequality against marginalised sections, fear of victimisation, etc. In short, they are fast in name but in reali- ty, as slow as any other court. This year also saw the Union govern- ment, under directions from the apex court, setting up 12 fast-track special courts for lawmakers. These 12 courts are being set up in 11 states, where the involvement of politicians in criminal cases is more, for speedy trial of the lawmakers on a day-to-day basis. They are expected to look into more than 13,000 cases that are pending against 1,765 MPs and MLAs. The number works out to nearly 35 percent of India’s total number of elected MPs and MLAs and is a far from flattering reflection of the extent of criminalisation that has crept into the country’s politics. It is to be hoped that the fast-track courts will act equally swiftly against criminals of all kinds, be they politicians or rapists. | INDIA LEGAL | December 10, 2018 27 Twitter: @indialegalmedia Website: Contact: KNEE-JERK REACTIONS The first fast-track court for crimes against women was set up in the Saket court prem- ises (below) in 2013 after the Nirbhaya rape Fast-trackcourtswerefirstsetupin 1999tospeedupdeliveryofjusticeand reducependency,whichacrossIndiaand atalllevelsaccountsfornearly33million casesasofDecemberlastyear.
  24. 24. The Supreme Court of United Kingdom on November 27 declined an emer- gency application submitted by one Noel Conway, who suffers from a terminal motor neuron disease, challenging the Suicide Act of 1961, which makes assisted dying illegal. The judges, however, noted that Conway “could bring about his own death … by refusing consent to the contin- uation of his [non-invasive ventilation],” calling such actions an “absolute right at common law”. 28 December 10, 2018 Briefs —Compiled by Sucheta Dasgupta Twitter: @indialegalmedia Website: Contact: “Assisted” death illegal AChinese scientist's announcement that he has created genetically edited babies has rocked the scientific world. Thirty-four-year-old He Jiankui of the Southern University of Science and Technology in Shenzhen, China, said on November 25 that he had used the gene-editing technique Crispr to alter embryos and then implanted them in a woman who gave birth to twin girls weeks ago. Born of HIV positive dads, Lulu and Nana will be immune to HIV as a result of the modification, he said. A second pregnancy may be underway. Seven other couples also partici- pated in the research. He insists his actions have been safe and ethical. But the Second International Summit on Human Genome Editing in Hong Kong, where he made this announcement, has found it “deeply dis- turbing” and “irresponsi- ble”. Still, it rejected calls for a blanket moratorium on such research, saying the work could eventually lead to new ways to pre- vent a long list of serious genetic diseases. The Chinese government has suspended He’s research. World’s first gene-edited babies kick up a storm Alleged lack of cooperation from Indian officials is making the National Prosecuting Authority of South Africa withdraw corruption charges against the Saharanpur-origin Gupta brothers—Ajay, Atul and Rajesh—who enjoy the patronage of former South African President Jacob Zuma—in the Estina diary farm project scam in Free State province. A sum of $20 million (`139 crore), meant for poor dairy farmers in Free State, was allegedly sup- plied to the Guptas. The eight accused also include one of their relatives, the dairy director and three government officials. Charges against Guptas dropped The Malaysian government will soon pass a resolution that would make it compulsory for a permit to be obtained before building shrines, including mosques, temples and churches; Prime Minister Mahathir Mohamad has announced. He was speaking in response to a question about the recent riots near the Seafield Sri Maha Mariamman Temple in Selangor. The temple was built on land owned by private developer One City Development and there has been a dispute over its proposed relocation. “That (requirement) will solve the problem,” Mahathir said. Malaysia to soon issue permits to build shrines Rights advocates were disap- pointed last week when a federal judge in Michigan dropped charges against a Detroit doctor, Jumana Nagarwala (right), accused of female genital mutilation. In so doing, Judge Bernard A Friedman of the District Court of Eastern Michigan, United States, also declared unconstitu- tional the 1996 law banning the act, holding that the Congress lacked the authority to criminalise it. Filed in early 2017, the case is believed to be the first ever brought under the federal law against female genital mutilation. Nagarwala is a per- son of Indian origin, and she performed the surgery on nine girls from her sect, the Dawoodi Bohra. Four of them are from Michigan, the others are from Illinois and Minnesota. The judge also dismissed charges against Dr Fakhruddin Attar, who allowed his clinic in Livonia, Michigan, to be used for the procedure, and his wife, Farida, and Tahera Shafiq who assisted in it. Three women accused of tricking their seven-year-olds into undergoing the surgery were also exonerated. “Congress overstepped its bounds by legislating to prohibit (female genital mutilation),” Judge Friedman wrote in a 28-page opinion. Michigan is the 26th state to ban the practice, the state law being enacted months after Nagarwala’s arrest. It comes with a 15-year sentence. Nagarwala is still charged with "conspir- acy to travel with intent to engage in illicit sexual conduct" and obstruction. The United States attorney office is reviewing Judge Friedman's opinion. Defence lawyer Shannon Smith has said if the ruling is appealed, “we're hoping the Court of Appeals and Supreme Court agree that the 1996 law was unconstitutional”. “US Congress cannot ban female genital mutilation”
  25. 25. 30 December 10, 2018 E have all heard of the concept that pol- luters must pay, an idea that the world has accepted. But in a landmark judg- ment in India, the Supreme Court has said that government agencies and offi- cials who do not take action against pol- luters will also have to cough up fines or even go to jail. A bench of Justices Madan B Lokur and Deepak Gupta said erring officials who connived with polluters should be brought to book and prosecuted under Section 15 of the Environment Pro- tection Act (EPA) that would invite a jail term of up to five years. Under this Act, defaulting government agencies would be liable to pay fines up to `1 lakh. It could also slap fines of `5,000 a day on erring officials or government agencies. The stern directive arrived on a day when the air quality in the capital had again plummeted to “very poor” catego- ry. Significantly, the Court has, for the first time, brought government officials and agencies on the same footing as pol- luters by allowing for their prosecution. With this direction, the Court has shown that it is no more ready to toler- ate a lackadaisical attitude among offi- cials, who in numerous cases that deal with environmental damage, have not followed court orders. Judges at the National Green Tribunal have time and again found that officials have not both- ered to even find out the information it asked for. Ravi Agarwal, Director, Toxics Link, told India Legal: “The fact that the Court had to step in with such a direc- tion clearly shows that we are in the midst of a crisis. It is indicative of how governance has broken down. It is good that the Court did what it did as it now puts accountability where it should and officials will do what they are supposed to be doing.” The Court permitted and empowered the Central Pollution Control Board (CPCB) to initiate prosecution after ad- vocate Aparajita Singh, who was amicus curiae, pleaded that the erring agencies and officials be brought under the ambit of Section 15 of the EPA so that the Board could discharge its duty accord- ing to laid down laws. Appearing for the CPCB, Additional Solicitor General ANS Nadkarni said that the Board had issued showcause notices to some nodal agen- cies and officials to indicate that crimi- nal prosecution against them would be initiated. The directions of the Court were welcomed by the Centre for Science and Environment(CSE), a Delhi-based organisation, which was actively involved in documenting and helping the government formulate policies to fight pollution. In its numerous cam- paigns, it has repeatedly said that laws are just not enough as what is crucial is implementation. Chandra Bhushan, deputy director of CSE, told India Legal: “What the Court did was just to reiterate the law. The law cannot differentiate between the private and public sector and both can be prose- cuted for breaking it or not doing what they are mandated to do. Even if the Delhi municipality lets out untreated water into a river, it will be prosecuted. It cannot now hide behind the fact that Inanovelandsternorder,theSupreme Courthassaidthatgovernmentagencies andofficialswhohaveconnivedwith pollutersshouldbebroughttobookand prosecutedeitherwithfinesorjailterms By Ramesh Menon W Heavy Price for Pollution Spotlight/ Pollution/ Crackdown on Erring Officials Anil Shakya
  26. 26. | INDIA LEGAL | December 10, 2018 31 it is a part of the government.” The CPCB told the Court that it had followed its earlier directions and creat- ed Twitter and Facebook accounts so that the public could lodge complaints about pollution. It said it had received 749 complaints from the National Capital Region in the first 22 days of November. It had taken action on 500 of these complaints, it said. The Court asked the Board to initiate prosecution against officials who had not acted on the remaining 249 com- plaints. “Why do not you prosecute these officials? You should prosecute them. Let these people realise what they have done,” the bench told Nadkarni. Though the Environment Pollution (Prevention and Control) Authority, con- stituted over 20 years ago, was vested with powers to file criminal complaints against polluters under Section 19 of the Environment Protection Act, 1986, it never did so. This just proves that laws are not the answer. Implementation is the key. V ivek Chattopadhyay, senior pro- gramme manager, Clean Air Programme, CSE, said: “The Supreme Court has set a higher bench- mark for enforcement. Observations by it indicate that even local agencies such as municipalities can be made legally accountable for not taking action on a complaint. The Court has given a stern message to the authorities to take the deterioration in the city’s air quality seriously. The mediocrity and non- accountability on complaints is often blamed for many instances of violation, including garbage burning, polluting industrial units or vehicles which spew toxic fumes. No action against polluters frustrates people.” Chattopadhyay added: “Apps and social media handles have become a popular grievance reporting system. This has made it transparent to find out whether action has been taken on a complaint. Inaction can no longer be hidden.” SPEWING POLLUTANTS (Clockwise from above) The Waste-to-Energy Plant at Okhla; a man collects recyclable items in the polluted Yamuna; Fire-fighters dousing flames at a dumping ground in Ghaziabad Anil Shakya UNI
  27. 27. An affidavit filed by the CPCB said that an efficient mechanism for resolv- ing the complaints through social media could be ensured if nodal agen- cies followed such accounts of the Board. It told the Court that in order to prioritise action on complaints received through social media, it has started attending to them by sending field teams to locations where there were allegations of pollution. An analysis of complaints during a clean air campaign revealed that the highest number of air pollution inci- dents was related to construction and demolition activities. It was followed by burning of waste, road dust, unpaved areas and roads, traffic congestion and industrial emissions. It is little wonder that the NCR was recently gripped by an environmental emergency. It led to knee-jerk reactions. The government banned the entry of trucks into the capital. This led to mas- sive traffic jams as trucks were parked along roads outside the city limits clog- ging them. The Delhi government was even toying with the idea of re-introduc- ing the odd-even scheme where only odd- or even-numbered cars would be allowed on a particular day. T here was also a Supreme Court order allowing only green crack- ers during Diwali, but no one knew what it meant. Timings to light crackers were limited to two hours. The police was told that it would be respon- sible for enforcing the directions of the Court. Of course, the order was blatantly violated as one could hear crackers burs- ting till 6 am the morning after Diwali. The police looked the other way. Only a minuscule percentage of violators was booked. However, the situation will be different next year as the police can be prosecuted, according to the direction of the apex court. An online survey among 7,558 Delhiites by Local Circles, a social engagement platform, found that 35 percent of the capital’s residents wanted to shift to cities with cleaner air. They said they were not happy with the steps taken to tackle pollution. Many said they were planning to get air purifiers and masks. Thirty percent of the partici- pants said they had a relative who had consulted a doctor for pollution-related health issues. A recent report of the World Health Organisation said that at least 60,987 children in India under the age of five had died due to causes linked to air pol- lution in 2016. Soon after, in November, another report from the United Nations Environment Programme (UNEP) that examined science-based solutions to air pollution in Asia, underlined the role of India’s Supreme Court in tackling pollu- tion. “The impetus for regulatory change sometimes comes from institutions out- side government agencies,” the report said, citing court orders such as the one that shifted Delhi’s entire public trans- port fleet onto compressed natural gas. It also mentioned other Indian laws such as the Air Prevention and Control of Pollution Act, 1981, Motor Vehicles Bill of 1988, Auto Fuel Policy of 2002, National Environment Policy of 2006 and the National Green Tribunal Bill of 2009. The report also suggested post-com- bustion controls which are end-of-pipe measures to reduce sulphur dioxide, nitrogen oxides and particulate emis- sions at power stations and in large- scale industry. Other measures include industrial process emission standards, especially for iron and steel plants, cement factories, glass production and chemical industry. It also suggested these standards for vehicles and dust control. It called for regulation of agri- cultural crop residues, residential waste burning, forest fires, livestock manure management, nitrogen fertilis- ers, brick kilns, international shipping and refineries. The government’s target is to reduce pollution by 20 to 30 percent. Will this direction by the top court help? One just hopes it will as we all have a right to breathe air sans poison. 32 December 10, 2018 “ThefactthattheCourt hadtostepinwithsucha directionshowsthatwe areinthemidstofacrisis. Itshowshowgovernance hasbrokendown.” —RaviAgarwal, director,ToxicsLink “TheobservationsbySC indicatethatevenmuni- cipalitiescanbemadelegally accountablefornottaking actiononacomplaint.” —VivekChattopadhyay, seniorprogramme manager,CSE “WhattheCourtdidwas justtoreiteratethelaw. Thelawcannotdifferen- tiatebetweentheprivate andpublicsectorand bothcanbeprosecuted.” ChandraBhushan, deputydirector,CSE Twitter: @indialegalmedia Website: Contact: Spotlight/ Pollution/ Crackdown on Erring Officials
  28. 28. | INDIA LEGAL | December 10, 2018 33 Media Watch Twitter: @indialegalmedia Website: Contact: I s there place for two Arnab Gos- wamis? Heavens forbid! It could lead to a rush for the emergency wards, but on the horizon is a Hindi version of the enfant terrible of television news. His name is Shamsher Singh and he will be editor of Republic TV’s Hindi channel called Republic Bharat, which will be launched in time for the 2019 polls. Singh has been hired from India TV, orig- inally NewsX owned by Peter and Indrani Mukerjea, now part of the ITV Group that also owns The Sunday Guardian news- paper. Singh has also worked for Zee and Aaj Tak. Republic TV’s majority owner is BJP MP Rajeev Chandrasekhar and he had hired a company called Client Associates, a financial consultan- cy firm, to look into whether an IPO would work better than finding a major strategic investor. The buzz in the Hindi news television space was that Chand- rasekhar was under pressure by his party bosses, mainly Amit Shah, to launch a Hindi version of Arnab and the pro-BJP channel he anchors as editor- in-chief and part investor, before the Lok Sabha polls. The Hindi TV news genre has a far greater reach than English channels. Chandrasekhar was willing to do that but he was reluctant to put in more money. The figure being quoted for a strategic investor is around `120 crore. What is certain is that Republic TV Hindi will be up and running by January- February 2019. A Bilingual Republic N ational news broadcasters are grinning all the way to the bank. After some challenging times with fierce competition leading to slash- ing of advertising rates, one event— assembly elections in five states—has boosted their bottom lines, courtesy of the BJP. In the run-up to the elections, the BJP emerged the biggest advertiser on television, dislodging big-time adver- tisers like Netflix, Trivago and Nestle. The data compiled by the Broadcast Audience Research Council (BARC) showed that the BJP’s advertising blitz appeared on television channels a mind blowing 22,099 times. The bonanza was confined to nat- ional channels, most- ly Hindi, apart from regional and local channels popular in Madhya Pradesh, Rajasthan and Chha- ttisgarh. The other beneficiary was advertising firm Ogilvy & Mather which has been working on BJP cam- paigns since the 2014 elections. Till November 14, the BJP had toppled number one advertiser Vimal Pan Masala. The big question, of course, is who all are funding the huge expense involved. Corporate India seems to be still betting on Narendra Modi and the Ambani brothers, Gautam Adani and a host of other biggies have electoral trusts as part of their portfolio. In assessing the money involved, a com- parison with FMCG giant Hindustan Unilever may be in order—HUL spent `1,070 crore on advertising in the quar- ter ending October-November. J ournalist and celebrity newscast- er Ravish Kumar never lets go an opportunity to lampoon the politi- cal classes, and he had a juicy oppor- tunity last week in Gwalior where he was invited to address the annual con- vocation at a prominent engineering college. On stage with him was the chief guest, the Jammu & Kashmir governor, fresh from his controversial move to dissolve the state assembly. Ravish started conventionally enough, reminding students about their res- ponsibilities and spoke on accounta- bility before he could no longer resist a dig at his fellow speaker on stage. “In the coming days you will venture into public life. You should be con- cerned about the state of the Chambal river and also about the state of the fax machine in the Raj Bhawan in Srinagar,” he quipped. The reference everyone knew by then—the fax machine that stopped working when a coalition of parties sent across a letter staking a claim to form the govern- ment. While Governor Satya Pal Malik put on a brave face, Ravish was not going to let the opportunity slip. Speaking in Hindi, he added: “You being the students of technology, should concentrate on technology which cleans sewers, and also make a fax machine that does not break down after 7 pm.” "Why did I say this? If I wished I could have kept this fact aside in hon- our of the special guest here, but I said it in his presence because he is the representative of democracy, and I have my complete faith in him that he will never tell me that Ravish Kumar has said it on the instructions of ISI. This is democracy. You face the per- son who you want to ask the ques- tion.“ Round One to Ravish. Light and Dark Money for Jam