India Legal 10 September 2018

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ARETHESETERRORISTS?
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NDIA EGALL STORIES THAT COUNT
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September10, 2018
Hindu Courts:
Parallel peril
General Musharraf Interview:
Blast from the past

HE issue of holding simultaneous elec-
tions to the Lok Sabha and state
assemblies continues to hog the head-
lines as India inches closer to state
elections followed by the national
grand finale in 2019. The ruling BJP has floated
several trial balloons on the issue, including the
possibility of achieving this goal through the leg-
islative process, which would probably entail a
constitutional amendment. Several months ago,
the Law Commission had released a preliminary
draft white paper in favour of the idea. But can
this be done in 2019?
Even though it found several positive points to
support its own position, the Commission, in an
update of its earlier draft, as it nears the end of its
term under the chairmanship of Justice (retd.)
Balbir Singh Chauhan, has cautioned against
moving too expeditiously, keeping in mind the
existing framework of the Constitution. The
bottomline drawn by the panel is that all stake-
holders must engage in a healthy and sustainable
debate on the issue because simultaneous polls
are “not possible within the framework of
the Constitution”.
In a recent interview to The Indian Express,
Justice Chauhan stated that his panel had raised
several fundamental questions and placed them
for public discussion. “We are very happy to have
been able to start a robust discussion on this.
Fifty MPs came to argue. We want to strengthen
the faith of the people in the system. We did not
want to give a report to favour anyone. We did
not want to submit a half-baked report.”
The Commission, in effect, raised the seminal
issue of whether simultaneous polls would “tinker
with democracy, basic structure of the Consti-
tution or the federal polity of the country”. The
report says: “The Commission has ensured that
the amendments to the Constitution and other
statutes are kept to the barest minimum….”
Even as the Election Commission is studying
the report and various options it suggests, the
Law Commission has made it clear that in the
three states where elections are due in January
2019 (Chhattisgarh, Madhya Pradesh and
Rajasthan), and Mizoram (at the end of 2018),
“extension of up to six months is required to
attain synchronization with the elections to the
House of the People in 2019, which will entail
amendment to Article 172 of the Constitution”.
India Legal in its February 12, 2018, editorial
had already picked up the issue right after Prime
Minister Narendra Modi had publicly floated the
idea. The write-up delved into every possible
angle involved—legal, political and economic—
and analysed the pros and cons as well as the
background to find out whether the idea thrown
up by Modi had any basis or it was merely backed
by political expediency. It is now pertinent and
relevant to remind our readers about the salient
points of that edit:
Actually, the proposal to hold national and
state elections simultaneously preceded his public
advocacy of it by nearly two decades. As early as
1999, the Law Commission, chaired by Justice
Jeevan Reddy, supported the idea. More recently,
the Parliamentary Standing Committee on Per-
sonnel, Public Grievances, Law and Justice came
to a similar conclusion. The Modi government,
therefore, had a readymade political wicket on
which to bounce its own ball and avoid public
criticism of trying to queer the pitch in its
own favour.
The ball was set rolling again when the prime
minister, in a rare interview to private television,
promoted the idea as healthy and desirable for
Indian democracy. Shortly thereafter, he received
backing on the eve of Republic Day from none
other than the president of India (whose
WHAT’S THE HURRY?
Inderjit Badhwar
Letter from the Editor
T
TherulingBJPhas
floatedseveraltrial
balloonson
simultaneouspolls,
includingthe
possibilityof
achievingthisgoal
throughthe
legislativeprocess,
whichwould
probablyentaila
constitutional
amendment.
| INDIA LEGAL | September 10, 2018 3

address is usually cleared by the Prime Minister’s
Office), who virtually repeated what former
President Pranab Mukherjee had said earlier:
“With some election or the other throughout the
year, normal activities of the government come to
a standstill because of code of conduct. This is an
idea the political leadership should think of. If
political parties collectively think, we can change
it…. The Election Commission can also put in
their idea and efforts on holding the polls togeth-
er and that will be highly beneficial.”
T
wo former chief election commissioners, N
Gopalaswami and SY Quraishi, have pub-
licly supported the concept. Gopalaswami
was completely gung-ho, urging the ruling party
to display the political will to make necessary
constitutional amendments to implement the
measure, while Quraishi, who saw merit in its
cost- and time-effectiveness, counselled obtaining
a wider political consensus. The NITI Aayog, a
government-controlled think-tank that took on
many of the functions of the old Planning
Commission after Modi became prime minister,
also jumped onto the bandwagon with its own
report, forcefully concluding that, as is the case of
all long-term structural reforms, “implementing
this measure would also cause some short-term
pain. However, this would be a stepping stone
towards improved governance and a larger initia-
tion of electoral reforms—a desperately needed
measure to re-boot the Indian polity”.
Strong words, indeed. But all the advocates of
this “reform”, taking shelter in the recommenda-
tions of the 170th report of the Law Commission
as well as the Parliamentary Committee, seem to
ignore that both cautioned against any impulsive
move in this direction without widespread con-
sultation. The Law Commission was careful to
suggest phasing the measure in but with the ad-
vice and consent of all chief ministers. And the
Parliamentary Committee also warned that club-
bing all national and state elections “can (only) be
possible with the cooperation of political parties
which represent the political will of the people”.
The Parliamentary Committee took a balanced
view of the pros and cons of the issue. It noted
that proponents made forceful arguments that
frequent elections led to suspension of develop-
ment programmes, welfare activities due to impo-
sition of the Model Code of Conduct, massive
expenditures by government and various stake-
holders, black money, engagement of government
personnel and security forces for prolonged peri-
Letter from the Editor
PEOPLE’S MANDATE
Voters waiting in a
queue to cast their
ballots in Chandigarh
4 September 10, 2018
Photos: UNI

ods of time, perpetuation of caste, religion and
communal issues.
But Prime Minister Narendra Modi is a man
in a hurry. He stated recently: “If India is to meet
the challenge of change, mere incremental
progress is not enough. A metamorphosis is need-
ed….My vision for India is rapid transformation,
not gradual evolution.” But the Parliamentary
Committee also counselled: “It is difficult to
quantify the gains from simultaneous elections.
This would require estimating impact of those
policies which should have been done but could
not be done due to electoral compulsions. Since
the existing cycle of frequent elections still works
in one way or the other, one can argue why get
into sweeping amendments of the Constitution
when we don’t know the quantum of benefits
through this reform? True, the existing system is
not entirely broken. But, the political class is
duty-bound to provide citizens a governance
framework that best fits the needs of its popula-
tion—a large proportion of which is young and
demanding. Elections are meant to elect
Governments who are then supposed to focus on
rapid and transformative national development.”
C
ritics have argued that such a step may
undermine the depth and breadth of
Indian democracy, and that its operational
feasibility is also a challenge. But as the
Association for Democratic Reforms points out,
the concept of simultaneous polls isn’t new to
India. The first elections to the Lok Sabha and all
state legislative assemblies were held together in
1951-52. However, with the premature dissolution
of some state assemblies in 1968 and 1969, this
cycle was disrupted. In 1970, the Lok Sabha itself
was dissolved early and fresh elections were held
in 1971.
As a result, says political analyst Nilesh Ekka,
for the last 48 years, there have been separate
polls for electing central and state governments.
He also analyses the “many hurdles in implemen-
tation of simultaneous elections”. These include:
the proposal could be motivated by political con-
siderations as voters tend to vote for the same
party at the central and the state levels during
simultaneous elections; the Constitution might be
misused if the Parliament/assembly is premature-
ly dissolved for political gains as Articles 83(2)
and 172 (1) of the Constitution provide for a set
term of the Lok Sabha and assemblies; the possi-
bility of its implementation every time might not
be a reality as state assemblies can be dissolved at
any time without completing the fixed term;
administrative and security concerns associated
with simultaneous elections should be addressed
at length before implementation.
“All this presupposes that the Lok Sabha and
Legislative polls will result in stable governments
that last their entire tenures and so will regimes
in the states,” he says. Only in the last 15 years
have all three Lok Sabhas lasted their full five-
year terms. He points out that the anti-defection
law and Supreme Court judgment in SR Bommai
vs. Union of India [1994] also ensure stability
and continuity of legislative bodies to complete
their full terms.
I am inclined to agree with his balanced view
that while holding simultaneous elections is an
interesting concept, whether it will decrease the
evils that the government wants to get rid of
needs to be debated thoroughly.
There could be another, perhaps intangible,
benefit of frequent elections in a large country
like India: They could serve to keep governments
on their toes and periodically remind them that
people power is the best safeguard of democracy
and accountability.
TheLawCommission,headedbyJustice(retd.)BalbirSinghChauhan
(above),hascautionedagainstmovingtoofastonholdingsimultaneous
polls,keepinginmindtheexistingframeworkoftheConstitution.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

ContentsVOLUME XI ISSUE 43
SEPTEMBER10,2018
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(Web)
The New Terror
The arrests of five rights activists for their purported roles in instigating the Bhima
Koregaon violence have brought back memories of the Emergency and are seen
as a move by the government to crush dissent ahead of the 2019 polls
LEAD
14
Game of Names
With so many labels flying
about and landing on
often unlikely targets, is
patriotism a uniform only
the BJP can don with ease?
Shiv Visvanathan says that it
is indeed so
20

Exception or
Precedent? REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design:
ANTHONY LAWRENCE
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
International Briefs..........35
Media Watch ..................48
Satire ..............................50
Piety for Votes
The move to make desecration of all religious texts punishable is an indication of
how religion has taken over the political landscape
42
In Dire Straits
With the High Court wanting closure of all establishments not registered under the
Clinical Establishments Act, Uttarakhand faces a healthcare crisis
44
Anachronistic,
Unsustainable
By enacting a new law against blasphemy, the
Punjab legislative assembly has turned its
back on its duty to protect free expression
40
The Next Chief
As the tenure of Chief Justice of
India Dipak Misra comes to an
end on October 2, he prepares
to pass the mantle to Ranjan
Gogoi, a judge who stands out
for his spunk and forthrightness
24
If Kerala is allowed to impose a cess on the
Goods and Services Tax in order to mobilise
resources in the aftermath of the floods, will
other states, too, demand the same?
More Equal, Less Error-Prone
The Reserve Bank of India’s proposal for a public credit registry is a move towards
a more mature credit market which should help all borrowers, especially the poor
36
STATES
COURTS
LEGALEYE
The Madras High Court has ordered doctors to look into a father’s plea
of euthanasia for his nine-year-old son who has total brain damage
29
46
Right to Let Go
Two hijackers of a 1981 Indian
Airlines plane, who have
already served sentences in
Pakistan, are acquitted by a
Delhi court due to lack of
conclusive evidence
30
Crash
Landing
Easy Come, Easy Go?
Some Tamil Nadu bureaucrats are critical of the recent apex court
decision restricting suspension of government officers to a “short duration”
26
Extra-Legal Justice 32
In Uttar Pradesh, a Hindu court has been set up to decide
on matters to do with all disputes involving Hindus. These
“kangaroo courts” threaten to usurp the sovereign functions
of the State by taking the law into their own hands
ECONOMY
SUPREMECOURT
Future Is the Past
Is Pakistan setting its eyes on the Line of Control as its new
official border with India? In June 2014, former President Pervez
Musharraf told APN Editor-in-Chief Rajshri Rai that at the Agra
Summit, both sides had agreed to this plan
22
INTERVIEW

“
RINGSIDE
“When ducks swim
in water, oxygen
level automatically
increases in the
waterbody. It (oxy-
gen) gets recycled.
Fish in the water will
get more oxygen.
They also benefit
from the bird drop-
pings....”
—Tripura CM
Biplab Kumar Deb at
a boat race function
in the state
“They say they will
start the exercise
(National Register of
Citizens) in Bengal. I
want to see who
dares to do that. We
are Bengal tigers. It
will not be so easy.
Before you start any-
thing here, remem-
ber that your days
will be finished
in 2019....”
—West Bengal CM
Mamata Banerjee
“In 23 years of my
journalism, no one
asked my caste, sur-
name… But as I was
introduced to party
workers as Lok
Sabha candidate in
2014 my surname
was promptly men-
tioned despite my
protest....”
—Former AAP leader
Ashutosh on AAP
using his surname
“Some may feel this is a celebration because
there are different performances. I would like
to say this is a consolidated effort of spend-
ing energy to raise contribution for a noble
cause. Energy spent is energy gained.”
—CJI Dipak Misra at an event organised for the Kerala
flood victims in Delhi, where SC judges Justices KM
Joseph and Kurian Joseph sang songs
“When I am not
being contacted, not
being invited and no
work is assigned,
then I formed a
SSP. Now it is for the
SP chief to decide
what action he has
to take.”
—Senior leader
of Samajwadi Party,
Shivpal Yadav, after
floating the Samaj-
wadi Secular Morcha
“I am not Kalaig-
nar. I can’t match
his mastery over
the language. But I
can dare to try.
Kalaignar’s princi-
ples will guide us
forever. Kalaignar
had appreciated my
hard work. I con-
tinue the work....”
—MK Stalin after
being elected
DMK president
“Google search
results for ‘Trump
News’ shows only
the viewing/report-
ing of Fake News
Media... they
have it RIGGED,
for me & others,
so that almost all
stories & news
is BAD....”
—US President
Donald Trump
“Yes, we have
taken the decision
to sell RK Studio.
It is already up for
sale. After the fire,
it is not viable
to build the
studio again.”
—Randhir Kapoor,
on putting up the
RK Studio in
Mumbai, built by
his father and
actor, the late Raj
Kapoor, for sale

An inside track of
happenings in Lutyens’ Delhi
The Modi government may have stopped
Kerala from accepting the `700 crore that
the ruler of Dubai and the Prime Minister
of the United Arab Emirates offered as a
grant in the wake of the flood disaster but
Sheikh Mohammed bin Rashid Al
Maktoum is undeterred. Through the
many foundations that the royal family
operates, he has sent massive supplies of
relief material that would easily compen-
sate for the loss of the substantial cheque.
Sources say that over the space of one
week, 12 special Emirates aircrafts carried
over 175 tonnes of cargo from Dubai to
Thiruvananthapuram, the nearest Emirates
base to the areas most affected by the
flood. The goods—food packets, dry fruit,
blankets for the people in the cold hilly
areas who were among the worst affected
and life-saving boats to rescue the thou-
sands marooned or still staying in shel-
ters. While consignments were handed
over to the local flood relief organisations
and others involved in the rescue and
rehabilitation operations, it appears the
Sheikh is also keeping a close watch on
the state’s path to recovery. Though the
UAE has a consulate in
Thiruvananthapuram, he has directed his
Delhi-based ambassador to travel to
Kerala and make an assessment of the
state’s requirements. There is every indi-
cation that the Sheikh, who recently said
that the people of Kerala “have always
been and are still part of our success
story in the UAE” will find ways to circum-
vent New Delhi’s rules and contribute on a
scale that would make up for the money
he promised but could not deliver.
HIS BENEVOLENT
HIGHNESS
Visitors to the finance ministry seeking an
appointment with the minister in charge,
Arun Jaitley, are first cautioned with an
unusual request. Even politicians who
know Jaitley well or corporate VIPs, who
have got close to him over the years, are
sternly warned that there will be no hand
shakes or hugs. In fact, the instructions
are to stand on the other side of his large
desk and keep a minimum of five feet of
distance. These are the instructions given
by his doctors at AIIMS to avoid the risk of
infection until he is fully recovered from his
kidney transplant and a weakened
immune system. Jaitley follows the same
practice at home where his bedroom was
turned into an ICU and his family and
friends still maintain a safe distance. Even
finance ministry officials speak to him from
the door and leave files on a side table for
him to pick up at his convenience. Most of
them are taken home since Jaitley only
works for two hours, between 10 am and
noon, and works from home the rest of the
day. For Jaitley, it is a dramatic change.
He liked to meet visitors in a relaxed
atmosphere on the sofa at the entry to his
office where he used to stay late for gos-
sip sessions with politicians, lawyers and
favoured journalists.
SAFE DISTANCE
Congress President Rahul
Gandhi’s hope of giving a gen-
erational makeover to the
Grand Old Party seems to
have fizzled out. The reshuffle
in the AICC and the commit-
tees announced to oversee
preparations for the 2019 Lok
Sabha polls show that the
Congress Old Guard has
found Rahul to be their ardent
patron. With the exception of
his confidants, Randeep
Surjewala and KC Venugopal,
all others in the nine-member
“core committee” constituted
by Rahul are veterans bor-
rowed from his mother Sonia
Gandhi’s war room. These
include AK Antony, Ghulam
Nabi Azad, P Chidambaram,
Ahmed Patel (who earlier
made a comeback as the
party’s treasurer),
Mallikarjun
Kharge, Jairam
Ramesh and
Ashok Gehlot.
The Young Turks have been
accommodated in the 19-
member manifesto committee
but here too the Old Guard
has not been ignored. The
over-reliance on veterans per-
haps has to do with the fact
that Rahul believes that
the party must revive
the ghost of the NDA’s
2004 India Shining cam-
paign if it hopes to give
the BJP a challenge in
2019. The Congress
will, in poll rallies,
draw compar-
isons with Modi’s promises of
New India and the hoax that
India Shining was. The poll
promises, aka party mani-
festo, will build on the populist
sops that brought the
Congress to power in 2004.
The sceptics in the party, how-
ever, believe that Rahul is
making the mistake of seeing
Modi as a re-modelled
Vajpayee, removing Amit
Shah’s wily machinations from
the equation and being
caught in the 2004 time warp
sans any new vision.
OLD WINE,
NEW BOTTLE

Delhi
Durbar
Arvind Kejriwal’s Aam Aadmi Party (AAP)
is imploding. It had lost its founding mem-
bers like Prashant Bhushan, Yogendra
Yadav, Anjali Damania, Prof Arun Kumar,
Mayank Gandhi, Meera Sanyal, Medha
Patkar, etc. some years ago. Six months
ahead of the 2019 Lok Sabha polls, the
party has now lost journalists Ashutosh
and Ashish Khetan. The resignations
aside, the bigger challenge facing AAP is
a severe cash crunch. A source said AAP,
which had fielded 432 candidates in the
2014 polls, higher than the BJP’s 428,
may not have funds to field even 100
nominees in the forthcoming general elec-
tion. In Delhi, a hunt for new candidates is
on. Kejriwal believes that many of his cur-
rent MLAs are unlikely to retain their seats
and several of them could abandon ship if
the Lok Sabha poll results favour the BJP.
The party, till a year after its 2015 Delhi
victory, was receiving huge amounts of
donations. The inflow began drying up
after many of the donors’ names dis-
played on the AAP website started receiv-
ing notices from Income Tax authorities.
Earlier this year, Kejriwal decided to
nominate outsiders—businessman Sushil
Gupta and chartered accountant ND
Gupta—to the Rajya Sabha from Delhi.
Sources say the decision to favour the
Gupta duo over party leaders was motivat-
ed by the hope that these men would rally
some donors to AAP. The failure of the
Guptas to deliver, sources say, could
result in further rebellion within AAP ranks
at a time when Kejriwal is dreaming of
emerging as a key face of the non-NDA,
non-UPA federal front envisaged by his
Bengal counterpart, Mamata Banerjee.
MONEY MATTERS
Petrol pump operators across
the country have been arm-
twisted into putting up bill-
boards on their premises dis-
playing a portrait of Narendra
Modi with a message invoking
the schemes his government
has launched. Those who do
not comply have been told by
their public sector suppliers that
their supply of fuel will be
blocked. The verbal advisories
have been conveyed to petrol
pump owners by representa-
tives of Indian Oil Corporation,
Hindustan Petroleum
Corporation Ltd and Bharat
Petroleum Corporation Ltd.
Officials from these companies
have been visiting petrol pumps
they supply to confirm that the
hoarding has been erected and
also suggest flagship pro-
grammes that should be high-
lighted, like the one providing
LPG cylinders for BPL families
under the Pradhan Mantri
Ujjwala Yojana. For petrol pump
owners, their only source of
diesel and petrol are public sec-
tor oil firms. Confirmation of the
arm-twisting came from the
president of the Consortium of
Indian Petrol Dealers, who
revealed this sinister develop-
ment to The Hindu newspaper.
FUEL BLOCKADE
If the BJP high command had hoped that
its pan-India “Kalash Yatra” for dispersing
the last remains of former Prime Minister
Atal Bihari Vajpayee would evoke sympa-
thy and support from the masses for the
saffron party, the plan seems to have
backfired, at least in the poll-bound states
of Madhya Pradesh and Chhattisgarh.
Vajpayee hailed from Gwalior in Madhya
Pradesh and had represented the state’s
Vidisha constituency in the Lok Sabha
before opting for Lucknow as his seat.
When the “Kalash Yatra” reached
Vajpayee’s home town, the Shivraj Singh
Chouhan government failed to extend an
official invitation to his relatives in the city
to attend the condolence meet and didn’t
make arrangements for their commute.
Later, at another condolence meet,
Chouhan and his family members were
seen smiling while paying tributes to
Vajpayee—an image widely broadcast by
local television channels and newspapers.
The party’s Chhattisgarh leaders too
left the high command red-faced as senior
ministers in the Raman Singh cabinet—
Brijmohan Agrawal and Ajay Chan-
drakar—were caught on camera sharing a
joke, thumping the table in front of them
and animatedly guffawing while sharing
the dais with the chief minister at a func-
tion to pay respects to Vajpayee. This
video went viral on social media. Vajpay-
ee’s niece, Karuna Shukla, who had
defected to the Congress in 2014 after
years of being sidelined by the BJP’s
Chhattisgarh unit, has demanded the res-
ignations of Agrawal and Chandrakar
while asserting that the saffron party was
using the BJP founder’s demise as a tool
for garnering votes.
ASHES TO ASHES

Courts
—Compiled by India Legal Team
Afive-judge constitution bench
of the Supreme Court recent-
ly held that “…a person who is
recognised as a member of Scheduled
Castes/Scheduled Tribes in his original
state will be entitled to all the benefits
of reservation under the Constitution in
that state only, and not in other states
or union territories...”. However, the
bench added that “pan-India reserva-
tion” would apply for services in the
National Capital Territory of Delhi. The
bench also cautioned against unilateral
action by states on the touchstone of
Article 16(4) of the Constitution. To this
effect, it ruled that if a state wanted to
extend reservation benefits to a new
group, “constitutional discipline would
require the state to make its views in
the matter prevail with the central
authority, so as to enable an appropri-
ate parliamentary exercise to be made
by an amendment of the Lists of
Scheduled Castes/Scheduled Tribes for
that particular state”.
In a move aimed at continuing moni-
toring of the preparation of the
National Register of Citizens (NRC) in
Assam, the Supreme Court proposed
the sample re-verification of at least 10
percent of the names which have been
included in the final draft of the NRC.
The court-appointed coordinator,
Prateek Hajela, was asked to submit a
report on the proposal and the possible
time-frame needed for conducting the
exercise. The top court also approved
the centre’s suggestion to extend the
period for filing claims and objections
from one month to two months. How-
ever, it questioned the centre’s proposal
to allow claimants who have been ex-
cluded from the final draft of the NRC
to submit additional documents to back
their claims. Concerned that this would
ultimately amount to redoing the exer-
cise, the Court asked Hajela to submit
a report on this aspect as well before
September 5, 2018.
Another apex court directive on NRC
Adivision bench of the
Madras High Court
recently asked the Na-
tional Highways Authority
of India (NHAI) to create
exclusive lanes for VIPs,
including sitting judges,
at all toll plazas on na-
tional highways. The cen-
tral government and NHAI
were also directed to is-
sue a circular to this ef-
fect. The Court backed
its order by saying that
it’s embarrassing for
VIPs and sitting judges to
wait at toll plazas and
display identity docu-
ments. The judges
warned that any violation
of the order would am-
ount to contempt of court
by NHAI.
Favourable
treatment
for VIPs
SC issues notice to
centre and WhatsApp
Adivision bench of the Supreme Court
issued notice to the central government
and WhatsApp Inc while hearing a petition
filed by Delhi-based think tank Centre for
Accountability and Systemic Change. The
petition rued the lack of government regula-
tion of WhatsApp’s services in India and
pleaded that the company should not be
allowed to conduct payment services unless
it meets the requirements stipulated by the
Reserve Bank of India. It further brought to
the Court’s notice that WhatsApp
had not yet appointed a griev-
ance officer for its users in
India. The Court has given the
parties four weeks to file their
replies to the notice.
There will be no second
chance for the Taj: SC
Hearing a petition filed by environmentalist
MC Mehta, the Supreme Court once
again expressed anguish over the deteriorat-
ing condition of the Taj Mahal and told the
Uttar Pradesh (UP) government that there will
be no second chance to preserve the monu-
ment once it is gone. The bench advised the
UP government that its vision document
must address the interests of the Taj Trape-
zium zone and the Taj Mahal. The Court also
slammed the government for providing an
incorrect list of polluting industries around
the monument. Further, it asked the govern-
ment to respond
on the question
of declaring Agra
a heritage city
before the next
date of hearing
on September
25, 2018.
SC rules
on job
reservations
for SCs/STs

Lead/ Arrests of Activists
IN LAW I REPOSE MY FAITH
P Varavara Rao upon his return
to his Hyderabad residence
where he is under house arrest
HE Supreme Court’s
unequivocal stand on the
importance of dissent in a
democracy was evident
when it ordered the house
arrest of five lawyers,
academicians and civil rights activists
against a request for their police cus-
tody. This is a stern indictment of a
State eager to silence those who dare to
speak the truth.
This order by the Supreme Court
T
Crackdown
bench of Chief Justice Dipak Misra and
Justices AM Khanwilkar and DY
Chandrachud on August 29 pertains to
the clampdown on these champions of
civil liberties even as there were unsub-
stantiated accusations of them conspir-
ing against the government.
The arrests of these five took place
on August 28 at dawn in various cities
by the Pune Police and forced Justice
Chandrachud to succinctly say that “dis-
sent is the safety valve of democracy; if
TherecentnationwidearrestshavebroughtbackmemoriesoftheEmergencyandareamoveby
thegovernmenttosilencecriticismandshoreupitschancesbeforethe2019elections
By Puneet Nicholas Yadav
UNI

dissent is not allowed, then the pressure
cooker may burst”. Coordinated pan-
India raids were conducted at the resi-
dences of eight lawyers, academicians
and civil rights activists. The stated trig-
ger was leads uncovered during a probe
into the violence between Dalits and
upper class Marathas that broke out at
Bhima Koregaon near Pune on January
1. The probe reportedly pointed towards
an alleged role by these activists in a
“big conspiracy” against the State.
The raids began at about 5.45 am.
Those raided included revolutionary
poet Varavara Rao in Hyderabad, civil
rights activist and author Anand
Teltumbde in Goa, People’s Union for
Civil Liberties national general secretary
and lawyer Sudha Bharadwaj in
Faridabad, human rights activists Arun
Ferreira, Vernon Gonsalves and wife
Susan Abraham in Mumbai, social com-
mentator Gautam Navalakha in Delhi
and tribal rights activist Father Stan
Swamy in Ranchi (see interview).
Subsequently Rao, Bharadwaj,
Ferreira, Gonsalves and Navalakha were
taken into custody by the raiding party.
The charges invoked against them were
under Sections 153A, 505(1)(b), 117,
120B and 34 of the Indian Penal Code
and Sections 13, 16, 17, 18, 18B, 20, 38,
39 and 4 of the Unlawful Activities
(Prevention) Act (UAPA).
The police secured transit remand
for them from respective local courts
and initiated the process of taking them
to Pune for further investigation.
Though the police managed to take Rao,
Ferreira and Gonsalves to Pune, lawyers
for Bharadwaj and Navalakha managed
to get stay orders against their transit
remands by the Punjab and Haryana
High Court and the Delhi High Court,
respectively. Curiously, all documenta-
tion produced by the Pune cops before
and after the police action was in
Marathi, a language that most of the
activists were not conversant with. The
police told the activists that they would
give them Hindi or English translations
of the search warrants, the panchnama
and the seizure lists, but did not.
A
day later, eminent personali-
ties—Romila Thapar, Devaki
Jain, Prabhat Pattnaik, Maja
Daruwala and Satish Deshpande—peti-
tioned the Supreme Court seeking
immediate release of the activists who
were raided and arrested “in complete
violation of their fundamental rights”.
A battery of legal luminaries, including
senior advocates Abhishek Manu
Singhvi, Indira Jaising, Huzefa
Ahmadi, Dushyant Dave, Rajeev
Dhavan, CU Singh, Raju
Ramachandran and Sanjay R Hegde,
argued on behalf of the petitioners.
The Supreme Court ordered that the
five rights activists would be placed
under house arrest till the next hearing,
posted for September 6, and issued
notices to the centre and the
Maharashtra government seeking their
replies to the petition.
The centre and the Maharashtra
government now have to show hard
evidence of the Pune police’s “conspira-
cy theory”. Spin doctors of the regime,
including willfully pliant media
on Dissent
Adaylater,RomilaThapar,Devaki
Jain,PrabhatPattnaik,MajaDaruwala
andSatishDeshpandepetitioned
theSupremeCourtseekingimmediate
releaseoftheactivists.
Anil Shakya

INDICTING THE GOVERNMENT
A top court bench of Chief Justice
Dipak Misra (left), and Justices AM
Khanwilkar and DY Chandrachud
(far left) upheld the importance of
dissent in politics and society
houses, have already begun their famil-
iar exercise of discrediting the activists,
painting them as “Urban Naxals” and
“Half Maoists” (see box). The unsub-
stantiated reports, flashed across many
television news channels following the
arrests, claimed that the activists were
arrested for their alleged role in a “plot
to assassinate Prime Minister
Narendra Modi”. The reports were part
of the ludicrous, albeit worrisome,
exercise of branding public intellectu-
als as terrorists.
T
he assassination plot doesn’t fig-
ure anywhere in the FIR regis-
tered against the accused. The
Pune police first saw this phantom plot
when it made arrests of other intellectu-
als in June this year during its probe
into the Bhima Koregaon violence.
However, despite its claims of having
recovered a letter detailing the said plot,
the police’s counsel strangely didn’t sub-
mit this ostensibly crucial document as
evidence in court.
The intellectuals arrested in June
were Professor Shoma Sen from
Nagpur University, human rights
lawyer Surendra Gadling, journalist
Sudhir Dhawale, activists Rona Wilson
and Mahesh Raut. These five were
charged by cops with the same offences
that the activists arrested on August 28
were accused of. Each of these arrested
activists has impeccable academic and
social credentials and many have been
felicitated internationally for their
work among the oppressed sections of
Indian society.
Incidentally, none of these arrested
activists is named in the FIRs that were
registered by the Pune police following
the Bhima Koregaon violence. It is per-
tinent to note that the Pune police or
the governments at the cen-
tre and in Maharashtra
have not explained why no
purposeful action has been
taken against those named
in these FIRs by eyewit-
nesses to the violence, and
against those who gave
communal speeches that
About 6 am on August 28, 83-year-old social activist and Jesuit priest FATHER STAN SWAMY
woke up to a loud knock on his window. As he came out of his room, he saw some 25 armed
policemen frantically searching his residence. The police team from Pune, assisted by another
from the local thana of Ranchi’s Namkum locality, told Swamy that his name was part of an
FIR filed in Pune with regard to his alleged role in inciting the communal violence that
broke out following an Elgar Parishad programme at Bhima Koregaon on January 1. While
Swamy was not taken into custody, the police seized a slew of material from his residence-
cum-school, including his laptop and mobile phone. Swamy spoke exclusively to
India Legal’s PUNEET NICHOLAS YADAV through an associate about the
raids and the “concerted effort to silence dissenting voices that make the BJP
government uncomfortable”. Excerpts:
“Thisisafighttothefinish”
Why did the police conduct raids at
your residence?
The stated purpose of the raids was that I am
part of a conspiracy against the government
and was involved in the Elgar Parishad meeting
in Bhima Koregaon. I do not know the exact
details of the FIR that the Pune police men-
tioned because the documents shown to me by
the raiding party were in Marathi. The police
team asked me to sign the panchnama and the
seizure list—also in Marathi—which I initially
refused because I do not understand the lan-
guage. We asked the cops to provide us a
translation in Hindi or English. Later, on the
advice of our lawyer friends, I asked the police
to explain the content of the FIR and the panch-
nama to us in Hindi, which they did. I signed the
documents on the condition that the translated
versions will be provided to me at the earliest.
The entire raid and our conversation with the
Anil Shakya

preceded it—Hindutva leaders Milind
Ekbote and Shambhaji Rao Bhide,
both with ties to the BJP and its parent
organisation, the RSS.
Counsel appearing for the prosecu-
tion in the local court in Pune and the
Supreme Court have made serious alle-
gations against the arrested but none of
these charges are mentioned in the
remand report prepared by the cops.
This report claims that all the activists
are members of the banned CPI
(Maoist) and lists reasons why they
should be in police custody. The plot to
police was videographed by my associ-
ates. Though the police promised to give
us the translated documents, I am yet to
receive them. They seized my laptop,
tab, mobile phone, diaries, books, a
press release on the Pathalgadi move-
ment that was lying on my study table,
some audio cassettes and CDs.
Many have said that the clampdown is
reminiscent of the Emergency.
I saw the oppression during the
Emergency. What is happening today is
worse. During the Emergency, those per-
ceived to be against Mrs (Indira) Gandhi
were arrested and put in jails. Civil liber-
ties were curtailed, in some cases
crushed. Today, there is an unofficial
Emergency. The BJP, whether at the cen-
tre or in the states that it rules, has
become paranoid because it feels that
its popularity with the electorate is wan-
ing. Anybody who questions the govern-
ment and its failures is silenced. What is
different from the Emergency is that the
dissenters are not simply being put
behind bars. Lynch mobs, with the evi-
dent patronage of political masters, have
been given a free pass to eliminate
those who the government sees as its
enemy. I work among the tribals of
Jharkhand. I have been raising issues of
their oppression, starvation deaths and
corruption in social reform schemes like
MGNREGA that were meant to benefit
the marginalised. I, and others like me,
have thus become a thorn in the side of
the BJP regime.
Though the police haven’t officially
said so in the FIR, there have been
claims of “evidence” that you and
other activists were part of a plot to
assassinate Prime Minister Narendra
Modi. All of you have been dubbed as
“Urban Naxals” who are trying to hatch
a “big conspiracy” against the State.
How do you respond to such charges?
These are ludicrous allegations. All that
we are doing is fighting for the rights of
the backward and the marginalised; and
we are doing so peacefully. Is it a con-
spiracy against the State to work for and
with the oppressed classes? The
Jharkhand government had earlier
slapped a case of sedition against me.
Now there is this laughable accusation
of a plot to assassinate the PM. The
script is familiar. If the government can’t
silence dissenters, it goes all out to
tarnish their reputation, discredit them
and brand them traitors and enemies of
the State. At 83 years of age, I can’t care
less about such fake and motivated
charges.
My comrades and I have resolved to
continue working for the people whose
voice the government wants to muzzle. If
the price for fighting for our underprivi-
leged fellow citizens, our rights and the
survival of our democracy is to be
defamed by our elected representatives,
or worse, be silenced, so be it. This is a
fight to the finish and at stake is humani-
ty, democracy and above all, the values
that this country stood for and must
stand for. No price is too high to pay, not
even our lives.
assassinate the PM, or that the activists
were facilitating funding, ammunition
supply and legal aid to Naxals, or even
their involvement in planning the Elgar
Parishad event in Bhima Koregaon find
no mention in this list.
And in a new development, Pune
police commissioner K Venkatesham
reportedly said that the material found
during investigation had led police to
probe the larger networks and opera-
tions of the banned CPI(Maoist) and
the recent arrests were a fallout of this.
Rao, Gonsalves and Ferreira had
been produced in a Pune city court,
while the Supreme Court was hearing
the petition demanding stay of their
arrest. The prosecution’s claims are
important to recall. Part of the barrage
of verbal accusations made against the
activists was that they were part of a
“conspiracy to set up an Anti-Fascist
Front to overthrow the government”.
This claim, too, was made without any
substantial evidence. If there is a fascist
government in Maharashtra or the
country, should there not be a concert-
ed effort to vote it out?
TEMPORARY
REPRIEVE
(From far left)
Gautam Navlakha,
Sudha Bharadwaj,
Arun Ferreira and
Vernon Gonsalves
have also returned
to their respective
homes post the
court order

TheUrban
Naxal
Even the ludicrous claim of a plot to
assassinate Modi needs to be checked.
This claim has surfaced before also when
Ishrat Jahan was killed in a police
encounter. This was when Modi was the
chief minister of Gujarat. During the
Gujarat assembly poll campaign in
January, Modi too made a garbled refer-
ence to such a plot when he accused his
predecessor, Dr Manmohan Singh, for-
mer Vice President Hamid Ansari and
others of “conspiring with Pakistan” to
get rid of him. Finance Minister Arun
Jaitley later offered a half-apology for this
accusation. And it is being raised now
weeks after an opinion poll predicted a
rout for the BJP in poll-bound Madhya
Pradesh, Chhattisgarh and Rajasthan and
a steady decline in Modi’s popularity.
While the State is unleashing terror
on advocates of civil liberties, it is allow-
ing a free run to Hindutva-propagating
lynch mobs, social media trolls and
extremist fringe outfits, a majority of
whom swear allegiance to the RSS/ BJP
or Modi.
Predictably, there has been a political
backlash over this State-sponsored despot-
ism against NGOs and public intellectuals.
Congress President Rahul Gandhi, CPI-
(M) General Secretary Sitaram Yechury,
Bengal Chief Minister Mamata Banerjee
and other opposition leaders have united
in their criticism of the arrests.
C
elebrated Man Booker Prize win-
ning author Arundhati Roy pith-
ily summed up the situation:
“That the raids are taking place on the
homes of lawyers, poets, writers, Dalit
rights activists and intellectuals instead
of on those who make up lynch mobs
and murder people in broad daylight
tells us very clearly where India is head-
ed. Murderers will be honoured and cel-
ebrated. Anybody who speaks up for jus-
tice or against Hindu majoritarianism is
being made into a criminal.”
Senior advocate Indira Jaising
asserted that the country had “gone past
that stage (of Emergency)”, adding “one
day there will be no one to defend the
rule of law; one day there will be no rule
of law to defend”.
Eminent jurists, too, have expressed
serious concern over the prevailing
witch-hunt to taint and silence those
who raise uncomfortable questions
against the BJP and its governments.
Former Chief Justice of India RM
Lodha has dubbed the arrests “an
attempt to suppress the dissenting voice
and an act to undermine the fundamen-
tals of Constitutional democracy”.
Former Supreme Court judge Justice PB
Sawant who was among the organisers
of the Elgar Parishad event told India
Legal: “The police are alleging that the
arrested activists are involved with the
Naxalites and were part of the team that
organised the Elgar Parishad confer-
ence. This is a lie. I was one of the
organisers, along with Justice Kolse
Patil (retired). I have never met these
activists to discuss or plan Elgar
I
mmediately after the Supreme Court
proceedings on the arrests of five
“activists”, failed filmmaker Vivek
Agnihotri (Chocolate, Buddha in a Traffic
Jam, Hate Story), inevitably took his
familiar right-wing stand by asking peo-
ple to make a list of those who were
defending “Urban Naxals”. Why he want-
ed the list compiled was left unsaid but it
would be no surprise he was asking that
the police add them to the definition he
created, Urban Naxals. He has even writ-
ten a book using the same title earlier
this year. Since then, Republic TV and
Times Now, both of which dutifully
toe the Modi government line, have used
the phrase numerous times in their so-
called debates. Republic TV’s Arnab
Goswami, in one of his toxic pro-
grammes, even linked “Urban Naxals” to
Kashmir separatists.
NDA ministers have picked up on the
phrase. Agnihotri’s book was launched
by Textiles Minister Smriti Irani, who, in
her remarks, sounded a dire warning
about threats to the government and
country by “urban Naxals”. Finance
Minister Arun Jaitley was also quick to
adopt the formulation when he tweeted in
June about the “Half Maoist”, a mysteri-
ous category of people who were a “seri-
ous threat to Indian democracy” as the
“over-ground face of the underground”.
From Anti-national to Urban Terrorist to
Half Maoist may be a play on words, but
its interpretation by ministers and its
Anil Shakya

Parishad events. It is evident that any-
one fighting for the cause of the Dalits
and tribals, as well as these oppressed
communities at large, is being sought
to be painted as anti-national. The
police are doing this at the behest of
the political masters.”
That Modi and the BJP despise
public intellectuals and NGOs working
with these oppressed communities and
religious minorities is a well-known
fact. With a slew of assembly elections
scheduled for later this year, leading up
to the big battle for the Lok Sabha in
2019, the plot to discredit these indi-
viduals as traitors is in full spate. As
Teltumbde, one of the activists whose
residence in Goa was raided in his
absence, says: “I have been critical of
the policies of the government and I
have done so with scholastic discipline.
I have also written books in which I
have criticised the Maoists for their
reliance on violence as a means to
achieving their goals. Yet, today, I find
myself being dubbed an Urban Naxal.”
So while the Supreme Court termed
dissent as the “safety valve of democra-
cy”, the Modi government views opin-
ion not in consonance with its policies
and politics as seditious. Perhaps it
hardline supporters adds a sinister
exclamation mark of terror.
Agnihotri claims that “urban Naxals”
are the "invisible enemies of India", and
endorsement of his views by NDA min-
isters and some television channels has
given the term some credibility. It has
also, sadly, given it enough ambiguity to
allow it to be used to discredit and even
jail those who raise their voices in dis-
sent or support marginalised sections
of society. So, the Dalit protesters at
Bhima Koregaon, and those who fought
for Dalit rights, are now Urban Naxals.
What is common about this motley
group is that they are intellectuals—
lawyers, journalists, poets, professors—
and live in cities, as opposed to jun-
gles, though nowadays with lynchings
and mob violence almost a daily occur-
rence, it’s tough to tell the difference.
The bottomline is that being an "intellec-
tual" equates with "influencer" and
equals “terrorist”. The Agnihotris and
Arnabs of this world have another name
for them—”Breaking India Forces”.
That particular phrase was coined by
another hardline Hindutva proponent,
Rajiv Malhotra, a US-based entrepre-
neur who expresses, and often, an
extreme right-wing view. His view,
echoed by many in the government like
Minister of State for Home Kiren Rijiju,
is that India’s biggest threat is internal
and is led by left-wing intellectuals, or
pseudo intellectuals, as they are
described. Now, they have a more hair-
raising branding—Half Maoists.
—Dilip Bobb
would bode well for the prime minister
to read the Law Commission paper on
sedition that came out days after the
national outcry against the activists’
arrests. The panel’s paper on the sedi-
tion law expressly states: “In a democ-
racy, singing from the same book is not
a benchmark of patriotism. People
should be at liberty to show their affec-
tion towards their country in their own
way… Expressions used in such
thoughts might be harsh and unpleas-
ant to some but that does not render
the actions to be branded seditious…
Right to criticise one’s history and the
right to ‘offend’ are rights protected
under free speech.”
T
he Unlawful Activities (Prevention)
Act of 1967 was created to pro-
vide for effective prevention of
unlawful activities by individuals and
associations and to deal with terrorist
activities, etc. This implies that it makes
available to the State the power to deal
with activities that are directed against
the integrity and sovereignty of the
country. The act came into force on
December 30, 1967, and it extends to
the whole of India. Since then, the Act
has been amended a total of six times
i.e., in 1969, 1972, 1986, 2004, 2008
and 2012.
Critics say that like the earlier anti-
terror laws such as TADA and POTA,
UAPA too criminalises ideology and
association. Thus, mere possession of
any literature of such an organisation or
even upholding an ideology common to
that organisation in the absence of any
violent act is construed as an offence.
Some of the drastic measures of
UAPA include: .
The Act introduces a vague definition
of terrorism to encompass a wide
range of non-violent political activity,
including political protest.
It empowers the government to
declare an organisation “terrorist” and
ban it. Mere membership of such a
proscribed organisation itself becomes
a criminal offence.
Allows detention without filing of a
chargesheet for up to 180 days, police
custody can be up to 30 days.
The Act creates a strong presumption
against bail and anticipatory bail is out
of the question. It creates a presump-
tion of guilt for terrorism offences mere-
ly based on evidence allegedly seized.
The Act authorises the creation
of special courts, with wide discretion
to hold in-camera proceedings
(closed-door hearings) and uses
secret witnesses.
Over the past few years, UAPA has
been invoked on several occasions.
The more noted cases are those of
human rights activist Binayak Sen and
Thirumurugan Gandhi, Maoist Khobad
Ghandy, Kerala Muslim leader Abdul
Nazer Mahdani and others. Last week’s
arrest of five activists, Vernon
Gonsalves, Arun Ferreira, Gautam
Navlakha, Sudha Bharadwaj and
Varavara Rao, has got even the judici-
ary riled and is as yet the most blatant
instance misuse of law.
—Dipankar Malviya
BlatantMisuse

Lead/ Column Shiv Visvanathan
VERY law a regime makes or
enacts has a structure of the
unconscious. This structure
is a many-layered site where
a regime plays out its own
fantasies of security and con-
trol. The BJP, in that sense, is a deeply
paranoid regime which uses law and
governance to control history, memory
and citizenship. At one level, it wants to
control civil society so that it can erase
it. It wants to ensure that the RSS is the
only form of civil society. Any attempt to
emphasise autonomy or plurality is a
threat to national security and is imme-
diately construed as unlawful activity.
The paranoid nature of BJP politics is
best seen in its attitude to the Bhima
Koregaon incident. In fact, the narra-
tives of the Bhima Koregaon incident
provide a genealogy of control.
The BJP is deeply involved in caste
politics and it employs the concepts of
caste and nation to control the behav-
ioural rules of the game. For decades
between the emergence of Jyotiba Phule
and the rise of Ambedkar, Dalits used
pan-Maharashtra symbols to voice their
ideas of liberation.
One of the most creative uses of such
a symbol centered around what Phule
always hailed as Shivaji’s sense of equal-
ity and justice. While Dalits employed
Shivaji as a wider symbol of their egali-
tarian dream, the communal right has
been desperate to appropriate Shivaji
for its own uses. It wanted to create a
Shivaji with an upper caste perspective.
The memory of Shivaji now gets con-
scripted into the Hindutva discourse. A
pan-Indian symbol got entrapped first
into a dominant caste discourse and
later into a communal one.
As incidents of violence increased in
the 1920s, Dalits wanted to rearticulate
memory and history. A control of mem-
ory, Dalits realised, was a control of the
political landscape. In resisting the
hegemony of the Marathas, especially
between 1920-40, the Dalits sought to
reclaim their history and spaces of their
identity. They focused on an event in
Peshwa history when soldiers of the
colonial army defeated the Peshwas. The
Bhima Koregaon battle became symbol-
ic of Dalit militancy and gave current
politics a genealogical edge. Dalits were
changing not just upper caste domi-
nance, but upper caste control of memo-
ry in the name of narrow nationalism.
Upper caste control of memory was seen
as hegemonic and groups seeking libera-
tion needed to liberate their memories
from the dominant discourse. The salute
to Mahar regiments that fought the bat-
tle against the Peshwas became a mom-
ent of popular commemoration. The
right wing which always insisted on con-
trolling history read Bhima Koregaon as
anti-national and unlawful. The para-
noid nature of dominant caste politics
surfaces with a vengeance against any
attempt to create a parallel or alterna-
tive history.
The Bhima Koregaon incident took a
contemporary turn after the caste clash
between Marathas and Dalits. Every
year, Dalits conducted a peaceful march
to this village near Pune which houses a
memorial to the Mahar regiment that
defeated the Peshwas. A march was
marred by violence by Hindutva groups,
but FIRs were now introduced not
against the communal right, but against
the organisers of the Elgar Parishad.
They were seen as challenging nation,
history, memory and dominant caste
discourses. The BJP regime now moves
from a control of memory to a control of
dissent, constructing a new discourse
where Dalit activists are a threat to the
prime minister, a fiction the police could
easily find as believable after the Rajiv
Gandhi assassination. They arrested five
When Democracy
Dies an Easy
Death...
TheBJP’sartoflabellinghastermeddissentanti-national,
pro-communist,terroristandMaoist.Patriotismisauniform
thatonlytheBJPcandonwithease
E
UNI

people for what they termed Maoist
activities. The politics of labelling is sig-
nificant here. From retaining the memo-
ry of the nation, these people now
threaten the nation itself.
The new recipe for arrest includes a
threat of violence, the promotion of
enmity between communities and to
this they added the fiction that the five
were a threat to the security of the pri-
me minister. The public prosecutor rel-
eased in court the news that they were
planning a Rajiv Gandhi-type incident
at one of Modi’s roadshows. Applying
the Unlawful Activities (Prevention) Act
(UAPA) was then easy and all five could
be arrested and detained for at least six
months. From appropriating history, the
regime moved to appropriating the law
for its own use. One style of historical
fabrication which helped create a mono-
lithic nationalism now leads to a fabri-
cation of cases. The irony is complete as
the regime unlawfully uses UAPA. What
was a Dalit revolt against history now
becomes a Maoist plot. Dalit politics
becomes an act of sedition as the regime
rewrites both law and history.
The Elgar Parishad, which attempted
to forge Dalit unity, now becomes taint-
ed with the brush of sedition. What the
BJP did not say was that the Elgar
Parishad was a significant electoral
plank for Dalits to rally against the BJP.
What is fascinating in the Machiavellian
sense is the BJP’s art of labelling.
Dissent is serially termed anti-national,
pro-communist, terrorist and Maoist.
The signals are clear and it is a message
not just for Dalits. Any form of dissent
that challenges policy, whether on trib-
als, defence or agriculture, is seen as a
form of sedition. Patriotism is a uniform
that only the BJP can don with ease.
The Urban Naxal becomes the brand
new term in Indian politics.
T
he Urban Naxal has now become
the regime’s favourite label for
civil rights activists, especially
lawyers who work on nature and human
rights. The arrests make little sense. The
list is an honourable one ranging from
Shoma Sen, a professor of literature in
Nagpur, to Sudha Bharadwaj, the ex-IIT
Kanpur alumnus, to Gautam Navlakha,
once the mainstay of journal EPW in its
prime, to Varavara Rao, the revolution-
ary poet whose theories of politics and
literature are well-known.
But words like conspiracy, terrorism
and Maoism are the new outcast words
of the nation which thinks that security
is now the sacred word, the easiest
weapon with which to manhandle civil
society. All the names mentioned are
honoured names in civil society and the
charge of terrorism against them is iron-
ic, but the regime has no sense of irony
and humour. That it would apply UAPA
against such distinguished company
makes the law look like an ass. To use
law to violate law seems to be the
favourite game of the Modi regime.
The inanity of BJP spokesperson
Sambit Patra should be the final word.
He accuses this quintet of human rights
activists of Balkanising India. Patra’s
sense of hyperbole is extreme, but it
reveals the deep anxieties of a regime as
election becomes a possibility. The BJP
has intensified its paranoid style of poli-
tics. When dissent is unlawful and a
proactive civil society taboo, democracy
dies an easy death. Amit Shah and com-
pany must be cheerful at that prospect.
—The writer is a member of the Compost
Heap, a commons of ideas exploring
alternative imaginations
TheBhimaKoregaonincidenttooka
contemporaryturnafterthecasteclash
betweenMarathasandDalits.What
wasaDalitrevoltagainsthistory
nowbecomesaMaoistplot.

Newly elected Pakistani Prime Minister Imran Khan has expressed his
desire for a peaceful resolution of all outstanding issues with India,
including a solution to the elusive Kashmir problem. The last time the two
countries came close to a solution was during the Agra Summit between
then Pakistan president, GENERAL PERVEZ MUSHARRAF, and Indian
prime minister AB Vajpayee. The summit failed but now Pakistan says it
is preparing a proposal attempting to “resolve” the Kashmir issue,
describing the draft as a “model for conflict resolution”. Minister for
Human Rights Shireen Mazari spoke about the plan during a TV talk
show, but did not share the details of the proposal. However, Musharraf,
in an interview to APN editor-in-chief RAJSHRI RAI in Dubai, which
was published in India legal in July 2014, had revealed that at the Agra
Summit, both sides had agreed to the LoC becoming the official border. Is
that the basis of the draft that Pakistan says it is preparing? India Legal
reproduces the interview and his version of the proposal and how the
Summit was sabotaged. Excerpts:
Interview/ Pervez Musharraf
You were popular in Pakistan and a suc-
cessful president. What went wrong?
I failed in dealing with hardliners. I
wanted to deal with them firmly, but my
colleagues preferred a softer approach.
There was a considerable delay in send-
ing troops to Lal Masjid—almost a year.
And those who had initially supported
me in sending the troops later started
criticising me. Just as those who had
initially supported Indira Gandhi
when she imposed Emergency, later
rose up in opposition. But, I have no
regrets. I did what was in the best inter-
est of Pakistan.
What were the reasons behind your
Back to
the Future
depends upon the personalities who are
leading the countries. For example, a
Manmohan Singh-Asif Ali Zardari talk
won’t yield any result because both are
weak personalities. In my view, dialogue
between Indira Gandhi and Zia-ul-Haq
and between Rajiv Gandhi and Benazir
Bhutto could have yielded results. Simi-
lar equation existed vis-à-vis Atal Bihari
Vajpayee and me, because he was a pop-
ular leader with a tremendous grasp
over political matters and he wanted a
lasting solution to the problem.
On the other hand, I might have
erred, but during my tenure in the army
I had seen so many people dying. Kargil
had been under my direct control for 20
decision to attack India (Kargil War)
when Nawaz Sharif was in talks with
India to improve relations?
No doubt it was a mistake, which cost
both India and Pakistan. Although I
have maintained that Pakistan was not
to blame for the Kargil conflict, but to
tell the truth, Pakistan’s army was
involved. The Indian border in that
region was very porous and suited our
purpose. But Nawaz Sharif is lying when
he says he had no knowledge about the
attack. He was told everything.
Why did talks break down during the
Agra Summit in 2001?
A dialogue between India and Pakistan

Volcker Report had been made public as
early as 2001 and even the Vajpayee
government had not acted on it. But, the
same report suddenly became important
(in 2005) on account of (Natwar
Singh’s) opposition to the nuclear deal.
All that Natwar Singh did was to write a
letter to Saddam Hussain, in which he
mentioned knowing the bearer of the
letter. He was not even an MP then. I
would not like to say anything else.
Narendra Modi is emerging as
a popular leader. If he becomes
the prime minister after the
2014 elections, what will be
the future of India-Pakistan
relations?
I have never met him. From
what I have read, it’s not a pos-
itive image, but I have also
heard that he has done a lot of
work in Gujarat. I will be able
to comment on him only if I
get a chance to meet him. Just
like I did not have a positive
impression about Vajpayeeji,
but after meeting him my
impression changed and we
used to converse on phone too.
How do you visualise things if
Modi becomes the prime min-
ister of India?
Look, the relations between the
two countries are very fragile,
and things can improve only
when we have strong govern-
ments in both the countries.
India has had strong govern-
ments, but Pakistan has been
less fortunate. Our problems
can be solved if Modi emerges
as a strong PM and Pakistan
gets a strong government, in
which its army has faith. The
best time for dialogue was when I was
in talks with Vajpayeeji. I want both the
countries to have strong and popular
governments, so that their citizens
accept their decisions.
Why didn’t you provide adequate securi-
ty to Benazir Bhutto in 2007?
I was wrong there. But Benazir wanted
permission for security from abroad. In
my understanding, it was not possible to
give permission to a foreign security
team to safeguard a Pakistani national.
But now I think I should have deviated
from the convention.
“Wehadagreeduponthelineof
actualcontrol(beingtheofficial
border)duringourtalks.Butthen
enteredLalKrishnaAdvaniand
ruinedthewholething.”
years. I know this region like
the back of my hand. In my
view, the time was just right
for talks—in fact we had
agreed upon the line of actual
control (being the official bor-
der) during our talks. But then
entered Lal Krishna Advani
and ruined the whole thing. I
was very upset and wanted to
return without meeting Atalji.
But my diplomatic team
advised me to meet him before
leaving. I asked him: “Is there
anyone more important than
you in India and Pakistan?
But had I known this, I would
have done my homework on
that person.” Atalji remained
silent, and then patting me,
said that someday a solution
will be found.
Many Indians believe that you
have tried to vitiate the atmos-
phere in India through the ISI.
(Interrupting) More powerful
than ISI are RAW and IB. ISI
is nowhere in comparison; it pains me
that what the ISI does in India, RAW
and IB do in Pakistan.
Why do people accuse you of working as
a stooge of America?
The truth is that American interference
in both India and Pakistan has in-
creased tremendously over the years.
Pakistan’s economy depends to a large
extent on American support, so much so
that we have to factor in American help
even while preparing our budget blue-
print. But having said that how do you
explain American interference in India?
Do you really think so?
Of course. If that was not the case, why
was Natwar Singh removed? The
CANDID TALKS
(Facing page) Musharraf with
Rajshri Rai at his Dubai apartment;
(right) AB Vajpayee meets
Musharraf in Agra
Getty Images

Supreme Court/ Ranjan Gogoi
S the tenure of Chief
Justice of India Dipak
Misra comes to an end on
October 2, it is time to
pass the mantle to Justice
Ranjan Gogoi. He is the
seniormost judge in the Supreme Court
and is therefore the natural successor to
Chief Justice Misra. He has performed
his duties in the best interests of the
country even if it meant locking horns
with the chief justice.
He was born in November 1954 to
Keshab Chandra Gogoi, who served as
the chief minister of Assam for a brief
period of two months in 1982.
Justice Gogoi’s career spans four
decades and began when he joined the
Thetopjudicialpostwillgo
toajudgewhostandsoutfor
hisspunkandforthrightness.
JusticeGogoihasperformed
hisdutiesinthebest
interestsofthecountryeven
ifitmeantlockinghornswith
thechiefjustice.Hewill
haveatenureofayear,a
monthand14daysuntilhe
retiresonNovember17,2019
By Naved Ahmed
The New
Chief Justice
A
JS Studio

Bar in 1978. He practised mostly in his
home state of Assam, in Gauhati High
Court. He was appointed a Permanent
Judge of this Court on February 28,
2001. Thereafter, he was transferred to
the Punjab and Haryana High Court in
September 2010 and became its chief
justice in February 2011. He was elevat-
ed as a judge of the Supreme Court on
April 23, 2012.
Justice Gogoi came into the limelight
on January 12, 2018, when he, along
with three other senior judges—Justices
Jasti Chelameswar (now retired),
Madan Lokur and Kurian Joseph—held
a press conference to address the issue
of the CJI’s handling of the roster. A
statement released by these judges
accused Chief Justice Dipak Misra of
“selective assignment of cases”. They
also said that there was a need for
adopting corrective measures in the
judiciary other than impeachment to
increase its accountability.
W
hat stood out in the press
conference was that Justice
Gogoi was sticking his neck
out by going along with the “rebels”
when he was slated to become the next
CJI. This open rebellion could only
hurt his chances of taking charge of this
top judicial post. Nonetheless, it didn’t
stop him from airing his grievances
so publicly.
Despite being the second most
senior judge, Justice Gogoi in fact has
not been made a part of constitution
benches that decide cases of constitu-
tional importance.
His judicial career has, nonetheless,
been very industrious. He has authored
several important judgments during his
tenure as Supreme Court judge.
In Common Cause v. Union of India,
a Supreme Court bench comprising
Justices Gogoi and PC Ghose had
restrained ruling parties from publish-
ing photographs of political leaders or
prominent persons in government-fund-
ed advertisements. The Court further
ordered that an ombudsman be
appointed and put an embargo on
advertisements on the eve of elections.
In another case, Ram Singh v. Union
of India, a bench comprising Justices
Nariman and Gogoi declined to accept
that the Jat community be given back-
ward status in India. Right before the
2014 Lok Sabha elections, the govern-
ment had promised reservation to Jats
and this was notified in the Central List
of Backward Classes for nine states—
Bihar, Gujarat, Haryana, Himachal
Pradesh, Madhya Pradesh, NCT of
Delhi, Bharatpur and Dholpur districts
of Rajasthan, Uttar Pradesh and
Uttarakhand. The judgment stated that
the Jat community cannot be given
backward status.
Justice Gogoi also dismissed a plea
asking for a special investigation team
to look into the attacks on Kanhaiya
Kumar, a JNU student leader who was
arrested and charged with sedition by
the Delhi police for allegedly raising
anti-India slogans at a student rally.
Stating that a lot of time had passed
since the attacks, Justice Gogoi said, “we
don’t want to flog a dead horse”. And
this April, Justice Gogoi issued a notice
to 10 states seeking an explanation for
the delay in appointing the Lokayukta.
The 2018 press conference is not the
first time that Justice Gogoi has shown
his spunk. In 2016, he even went against
a judge. Then, a Supreme Court bench
of Justices Gogoi, Prafulla C Pant and
UU Lalit was addressing a special leave
petition by the accused in the Soumya
rape and murder case. The SC bench
overturned a High Court order and
acquitted the accused, Govindachamy, of
murder charges and the death penalty
was dismissed. Although the life sen-
tence for the offence of rape was upheld,
the judgment was criticised publicly.
Former Supreme Court judge Justice
Markandey Katju in a Facebook post
openly criticised the judgment, saying
the bench “erred in judgment” in the
Soumya case. Initiating suo motu pro-
ceedings for contempt, the bench called
Justice Katju to assist it and explain
how the judgment was an error. The
matter was disposed of ultimately with
an apology by Justice Katju.
J
ustice Gogoi’s powerful oratory on
free speech and expression in July
2018 was lauded by many. He was
speaking at the third Ramnath Goenka
Lecture on “The Vision of Justice” and
his speech stood out for its forthright-
ness and moral uprightness. He said
that “independent journalists and some-
times noisy judges” are democracy’s first
line of defence. Some of his outstanding
quotes were: “Justice is not a standalone
precept, but an amalgam of other ideals
like socialism, democracy, liberty, equal-
ity, fraternity. They are not isolated silos
because their undying endeavour is to
establish one discipline —of overall jus-
tice, of an inclusive society.” And quoting
US Founding Father Alexander
Hamilton, he said: “While civil liberties
will have nothing to fear from the union
of the judiciary alone, they will have
everything to fear from the union of the
judiciary with either of the other two
branches.”
He also said: “A chain is only as strong
as its weakest link. So is an institution.
And if introspection is where we have to
begin, we might as well begin there.”
His views on the judiciary remaining
uncontaminated, independent and fierce
to preserve its character will indeed be
tested as he takes over as India’s chief
justice during a tenure that will last a
year, a month and 14 days until he
retires on November 17, 2019.
SpeakingattheRamnathGoenka
Lecture,JusticeGogoisaid
“independentjournalistsandsometimes
noisyjudges”aredemocracy’sfirst
lineofdefence.“Justiceisnota
standaloneprecept,butanamalgamof
otheridealslikesocialism,democracy,
liberty,equality,fraternity”.

Supreme Court/ Suspension of Government Officers
N a ruling with far-reaching con-
sequences, the Supreme Court has
held that suspension of a govern-
ment employee must necessarily
be for a short duration only. The
apex court said this last week
while upholding the revocation of sus-
pension of P Pramod Kumar, Inspector
General of Police, Tamil Nadu. The Sup-
reme Court also upheld the Madras
High Court’s judgment which quashed
the charge memo issued against Kumar
by the CBI.
Recalling a 2015 Supreme Court
judgment, the division bench consisting
of Justices SA Bobde and L Nageswara
Rao said: “This Court in
Ajay Kumar Choudhary
Vs Union of India, (2015)
7 SCC 291, has frowned
upon the practice of pro-
tracted suspension and held that sus-
pension must necessarily be for a short
duration only.” Kumar was an IPS officer
of the 1989 batch hailing from Bihar
and belonging to the Tamil Nadu cadre.
When he was posted in 2009 as
Inspector General of Police (IGP) in the
Western Zone of Tamil Nadu, compris-
ing important districts like Tiruppur,
Coimbatore, Erode and others, a scam
came to light in that region. Called the
“Paazee scam”, the modus operandi of
the promoters of Paazee Forex Trading
Company was to collect money from
people on the promise that it would be
tripled in just a few months. A large
number of people deposited money only
Getting
Away Lightly
OpinionisdividedamongTamilNadubureaucrats
abouttheapexcourtdecisionrestrictingsuspen-
sionofsuchofficersto“shortduration”
By R Ramasubramanian
in Chennai
I BACK TO WORK?
P Pramod Kumar was cleared by the apex court
of all charges but the Tamil Nadu government is
yet to give him a fresh assignment
A
curious aspect of this saga is the
advocate whom suspended
police officer Pramod Kumar
hired to fight his case in the Supreme
Court. When former Union Finance
Minister and Senior Counsel P
Chidambaram appeared for Kumar in
the apex court, it raised eyebrows, par-
ticularly among politicians and serving
and retired top bureaucrats. Those who
lost their hard-earned money in the
‘Paazee scam’ are furious, but they did
not go overboard in displaying their
anguish, disapproval and disappoint-
ment. “Chidambaram is a great lawyer.
He is one of the finest legal brains India
has ever produced. In fact, somebody
should represent Pramod Kumar.
Suppose there is a person who is eco-
nomically poor and not in a position to
hire a lawyer, the court will bring him a
lawyer from the free legal aid board.
Kumar has a prerogative to hire any
lawyer of his choice, and equally,
Chidambaram has a right to represent
any client, irrespective of heinous crimes
and charges levelled against a person,”
said one of the victims. “Chidambaram
is not only a lawyer, but also a politician
so this will not go down well with the
people who lost their money in this
scam,” says G Satheesh Babu, a small
grocery shop owner in Coimbatore and
a close relative of a woman who lost
over one lakh rupees in the scam. “The
irony of the situation is that not only
myself, but also our entire family includ-
ing that particular woman who lost her
money, were dedicated Congress sup-
porters for four generations,” adds
Satheesh Babu.
This situation, of top politicians–
cum– lawyers representing a known
criminal or going against the wishes of
almost the entire population of a state
MoneyTalks

retired bureaucrats about the long-term
impact of the verdict. Some say it is a
complicated one and may affect the fight
against corruption. “The apex court says
that suspension must be for a short peri-
od only. There are hundreds and thou-
sands of corrupt officials in Tamil Nadu.
The total strength of Tamil Nadu gov-
ernment employees is slightly over 11
lakh. Out of this, a few thousand
employees are under suspension even
now. A majority of them were charged
with indulging in corruption. Now, even
before the disciplinary committees clear
them of all charges, they have to be rein-
stated by revoking their suspension
orders, as per the Supreme Court judg-
ment in the Pramod Kumar case. This
will have far-reaching consequences.
Out of the few thousand employees
under suspension, even by conservative
estimates, there will be at least a few
hundred heavily corrupt officers.
Reinstating them will create a night-
marish situation for the government. I
strongly believe this judgment may have
the potential to affect, at least at a mod-
erate level, the fight against corruption.
It’s sad that the highest court of the land
has not taken this reality into considera-
tion while delivering its judgment,” says
a recently retired deputy secretary level
officer of the Tamil Nadu government.
Suspension is a peculiar issue as far
as Tamil Nadu government officials are
concerned. For example, a 54-year-old
him. Then Kumar went to the Madras
High Court, challenging the trial court
order. On January 12, 2017, the Madras
High Court upheld the tribunal’s order
which lifted Kumar’s suspension and
also quashed the disciplinary proceed-
ings and exonerated him, stating that
there was no credible evidence to sus-
pend him and also no material available
to issue a charge memo.
C
hallenging this, the Tamil Nadu
government went to the Supreme
Court and a bench headed by
Justices Bobde and Rao heard the case.
After hearing both sides, the judges
ruled that there was no credible evi-
dence available against Kumar and
hence upheld the Madras High Court
order. It was at this stage that the
Supreme Court held that suspension of
a government employee must necessari-
ly be for a short duration only.
Opinion is divided among senior and
to find out much later that the con-
cerned company was basically fraudu-
lent in nature. Thousands of cheques
issued by the company bounced, send-
ing investors into a state of panic.
The depositors’ anger forced the
police to take immediate action. This
was when Kumar, who was the IGP of
the zone, made his entry. It was alleged
that Kumar received 1.85 crore from
the Paazee Company to protect three
directors of the firm. Initially, the case
was handled by the Tiruppur police.
Then it was handed over to the Crime
Branch Criminal Investigation
Department or CBCID of the Tamil
Nadu police in February 2010. Later, on
February 18, 2012, the case was handed
over to the CBI due to the alleged large-
scale involvement of police officers of
Tamil Nadu. On May 2 the same year,
Kumar was arrested by the CBI in New
Delhi. He was suspended on May 10,
2012, by the Tamil Nadu government
and also issued a charge memo by the
CBI.
Kumar challenged his suspension
and disciplinary proceedings before the
administrative tribunal. The tribunal
lifted the suspension, but refused to
quash the charge memo issued against
on a particular issue, has affected the
Congress party in the past too.
In October 2010, Congress
spokesperson and senior Supreme
Court lawyer Abhishek Manu Singhvi
appeared in the Kerala High Court for
top lottery owners of Kerala. At that
time, the Congress was aggressively
campaigning against lotteries in Kerala.
In fact, the Congress spokesperson in
New Delhi, Janardan Dwivedi, remarked
in an open press conference: “The party
has taken serious note of Singhvi’s
action. The matter is under considera-
tion by the party and therefore, it is
implied that he (Singhvi) will not brief.”
Just a couple of hours after
Dwivedi’s statement, Singhvi
announced, “No conflict of interest was
ever intended, it was purely under per-
sonal capacity. Nevertheless, keeping in
view the sentiments, larger interests and
interests of the party, I have decided not
to appear in this case.”
Abhishek Manu Singhvi P Chidambaram
Thejudgmentisuniqueasitreinforces
theconceptofsuspensionbeingpunitive
innatureifitisforanindeterminateperi-
odorifitsrenewalbeyondthreemonths
lackssoundreasoning.

state government employee is suspend-
ed on some charges, whether a clear cor-
ruption case or breach of the service
rules like participating in a political
activity, etc. The suspended employee
will get half of his last drawn salary. In
the above example, if the concerned
employee was drawing 50,000 as his
monthly salary, then after suspension he
will receive only 25,000 from the next
month onwards. At the age of 58, he will
retire (in Tamil Nadu the retirement age
of state government employees is 58).
But after retirement, he will not get any-
thing, ie neither half the salary he
received, nor pension.
S
ome officers say this judgment of
the Supreme Court is a ticklish
one. “I am not saying this judg-
ment is a bad one. But at the same time,
I cannot accept this fully. There is huge
corruption in Tamil Nadu. And among
those suspended, I personally know that
a few hundred are heavily into corrup-
tion. They will never change.
Reinstating them immediately after a
stipulated period will definitely not help
the government’s sincere efforts to, if
not completely, but to a large extent,
eradicate corruption,” says A
Venkatathiri, a 75-year-old former Tamil
Nadu government employee.
But there are others who take a con-
trary view. They refer to the Ajay
Kumar Choudhary Vs. Union of India
case in which the Supreme Court had
clearly pointed out that “the currency of
a suspension order should not extend
beyond three months, if within this
period, the memorandum of charges or
chargesheet is not served on the delin-
quent officer or employee; if the memo-
randum of charges or chargesheet is
served, a reasoned order must be
passed for the extension of the suspen-
sion. As in the case in question, the gov-
ernment is free to transfer the con-
cerned person to any department in any
of its offices within or outside the state,
so as to sever any local or personal con-
tact that he may have and which he
may misuse for obstructing the investi-
gation against him. The government
may also prohibit him from contacting
any person, or handling records and
documents, till the stage of his having
to prepare his defence”. So, it would not
be appropriate to say that the Supreme
Court has quantified suspension in a
loose timeframe. Rather, the judgment
is unique in the sense that it reinforces
the concept of suspension being puni-
tive in nature if it is for an indetermi-
nate period, or if its renewal beyond
three months is not based on sound
reasoning contemporaneously available
on the record.
They also reject the fears expressed
by some that the order will affect the
war on corruption. They say the order of
the Supreme Court does not talk about
punishment in corruption cases or oth-
erwise. The order mainly deals with the
cases of suspension of All India Services
officers, which technically is not consid-
ered punishment. It in no way gives
respite to those indulging in corrupt
practices, but provides a shield to those
who are being harassed by way of pro-
longed suspension without justifiable
reasoning. It also focuses on the irregu-
larities of the disciplinary authority in
cases dealing with All India Services
officers.
Also, the Court in its order has not
disputed the power or jurisdiction of the
state government for continuing the
officer’s suspension pending criminal
trial. There is no doubt that the allega-
tions made against the officer are seri-
ous in nature. The order also talks about
the liberty given to the investigating
agency to approach the Court, in case
the officer indulges in tampering with
evidence. The Court also observes that
no useful purpose would be served by
continuing the officer’s suspension. The
government of Tamil Nadu has the lib-
erty to appoint the officer to a non-
sensitive post as indeed it has legal
options in the form of filing review and
curative petitions before the apex court
itself.
As of now, it is not clear as to what
the Tamil Nadu government is going to
do next in the matter. Whether the
government will immediately appoint
him somewhere else or if it will wait
for a few more months, especially given
that the Lok Sabha elections are
around the corner, is the main ques-
tion. After the apex court verdict, the
Tamil Nadu government has no option
but to reinstate him in service but the
question on everyone’s lips is: where
will he be accommodated?
ThedivisionbenchoftheSC,comprisingJusticesBobde(left)andNageswaraRao,
referredtoa2015SCjudgmenttoupholdtheMadrasHCorderandcometothecon-
clusionthatthesuspensionofagovernmentemployeemustbeforashortduration.
Supreme Court/ Suspension of Government Officers

Courts/ Euthanasia Plea
HE Madras High Court has
admitted a writ petition
praying the Court issues a
writ of mandamus (order
to state and central govern-
ments) for subjecting a
nine-year-old boy to euthanasia. The
writ was filed by R Thirumeni, from
Cuddalore district in Tamil Nadu, who
said in his petition: “My nine-year-old
son is in a state of wakefulness without
any awareness about himself or about
anything in the environment since his
birth. All his movements and reactions
are based on reflex and there is no
response to or awareness of or reaction
to anything or voluntary movements.
My son suffers from a severe form of
total brain damage and he cannot even
recognize anything or anyone in his
environment. There is total motor dis-
ability and he cannot even sit. After sev-
eral medical tests, doctors diagnosed
that my son is suffering from a condi-
tion called Hypoxic Ischemic Encepha-
lopathy (HIE) and doctors told me that
this is an irreversible condition.” Thiru-
meni also told the court that he was
spending `10,000 on medicines for his
son and added he has two daughters
too and hence he cannot financially
afford this much money as he is only a
small tailor.
The petition came up for hearing
before a bench headed by Justices N
Kirubakaran and S Baskaran on August
24. Admitting the petition, the court
ordered notices to both the central and
state governments and posted the case
for further hearing on September 10.
The court has appointed a panel of three
people comprising a neurosurgeon, pae-
diatrician, and the Chief Medical
Officer, Chennai, to appoint doctors to
examine the child.
The definition of euthanasia as per a
five-judge constitution bench of the
Supreme Court is: “Passive euthanasia,
also called negative euthanasia or non-
aggressive euthanasia is an activity,
which entails withholding of medical
treatment for continuance of life. For
example, withholding of medical treat-
ment for continuance of life, like with-
holding of antibiotics, where without
giving it, a patient is likely to die”.
This means that if a patient has been
kept alive by the use of life-saving med-
ical equipment, such as a ventilator, or
drugs or substances, such as food admi-
nistered through a pipe or medicines,
then these would be stopped and the
patient would be allowed to die a ‘natur-
al course of death’.
The petitioner’s counsel, Kavitha
Rameshwar , summarised the condition
to India Legal in the following words: “I
did a lot of research into the child’s
medical condition and also met several
experts before filing the case. It took
me some time to take up the case as it
was both a personal as well as a
professional decision which had to be
very responsible.
“On March 7, 2018, the Supreme
Court legalized passive euthanasia by
means of the withdrawal of life support
to patients in a permanent vegetative
state. A five-judge Constitution Bench
headed by Chief Justice Dipak Misra
held that the fundamental right to life
and dignity includes the right to refuse
treatment and die with dignity. The fun-
damental right to a ‘meaningful exis-
tence’ includes a person’s choice to die
without suffering. The judgment has
laid down several stringent safeguards
and all concerns have been addressed”.
Meanwhile, petitioner Thirumeni is
keeping his fingers crossed and is
expecting a favourable order from the
Madras High Court that would end his
son’s suffering as well as give some relief
to the rest of his family.
TheMadrasHighCourthasorderedateamof
doctorstolookintoafather’spleatoputto
sleephisnine-year-oldsonwhosuffersfrom
totalbraindamage
By R Ramasubramanian in Chennai
RThirumeni(above)haspleadedtothe
MadrasHighCourtthathissonisina
stateofwakefulnesswithoutany
awarenessabouthimselforanythingin
theenvironmentsincebirth.
Time To Let Go
T

freed. The accused, Tejinderpal and
Satnam, were tried under Section 402B
of the Pakistan Penal Code by the Spe-
cial Judge, Lahore, and convicted for
hijacking of the Indian plane. The plane
was hijacked to secure the release of
Jarnail Singh Bhindranwale, who was
then in custody in India. The accused
used their kirpans to terrorise the crew
as well as passengers, which amounted
to use of force. Three other co-accused—
Gajinder Singh, Jagbir Singh Cheema
and Karan Singh—are still absconding.
Tejinderpal and Satnam underwent
imprisonment in Pakistan from Septem-
ber 30, 1981 to October 31, 1994. On
their return to India, both filed an appli-
Courts / Aircraft Hijack 1981
cation for discharge from the case, on
the grounds that they could not be tried
and convicted for the same offence
twice, as they had already undergone
sentences in Pakistan.
Tejinderpal, after serving the sen-
tence in Pakistan, reached New Delhi
from Canada on December 25, 1997.
Satnam reached India in 1999 through
Nepal. After initial confusion among
officials whether they could be tried for
the same offence twice, a trial court took
cognisance of the offences of sedition
and waging war against India against
them in August 2012. Satnam had been
already discharged from the case by
then Additional Chief Metropolitan
Magistrate (ACMM) Sangita Dhingra
Sehgal, on February 11, 2000. However,
Tejinderpal’s discharge application,
moved on July 19, 2000, was kept pend-
ing. He was investigated for the offence
of sedition, as it was not among the
offences for which he was convicted and
Crash
Landing
HIRTY-seven years after
the incident took place, a
Delhi court recently acquit-
ted two men of charges of
waging a war against the
country in a case relating
to the hijacking of a Delhi-Srinagar
Indian Airlines flight and forcing it to
land in Pakistan in 1981. Tejinderpal
Singh and Satnam Singh were granted
“benefit of doubt” by the Court, which
said that the prosecution had failed to
prove beyond “reasonable doubt” the
charges levelled against them.
The facts of the case are thus: On
September 29, 1981, an Indian Airlines
plane carrying 111 passengers and a
crew of six on a flight from Delhi to
Srinagar via Amritsar was hijacked by
five knife-wielding advocates of a sepa-
rate Sikh homeland. They forced the
pilot to fly to Pakistan, where security
forces captured them. Forty-five passen-
gers, who were held as hostages, were
T
Fiveknife-wieldingadvocatesofa
separateSikhhomelandhadforcedthe
pilottoflytoPakistan.Theywantedto
securethereleaseofJarnailSingh
Bhindranwale,thenincustodyinIndia.
TwohijackersofanIndianAirlines
plane,whohadalreadyserved
prisontermsinPakistan,are
acquittedbyaDelhicourt
aftertheprosecutionfailsto
provethecharges
By Venkatasubramanian

sentenced in Pakistan.
The Additional Sessions Judge, Ajay
Pandey, of Patiala House Courts, New
Delhi, on August 27 found that the
accused were not identified by any wit-
ness produced by the prosecution as hav-
ing committed any act of waging or
attempting to wage or abetting waging of
war against the Indian government. Two
prosecution witnesses, supposedly crew
members of the ill-fated flight, denied
the identity of the accused. Although the
Additional Public Prosecutor suggested
that the accused shouted slogans in the
plane, the two witnesses denied it. The
judge also found that the Investigating
Officer (IO) did not verify the names of
the crew members of the flight. Nor did
he ask Indian Airlines to supply the
names of the crew members of the flight.
There is no duty roster, no log book, or
any other data suggesting that the two
witnesses were crew members on the ill-
fated flight. The IO did not even obtain
the list of passengers on that flight from
Indian Airlines.
As a result, the judge agreed that the
possibility of some specific witnesses
being chosen by the IO to support his
case could not be ruled out, and their
testimony could not be said to be beyond
reasonable doubt.
First, the trial court concluded that
the accused were entitled to acquittal for
want of proper sanction. Sanction under
Section 196, CrPC, for prosecution of
accused persons was found to have been
granted without application of mind and
considering the facts of the case.
S
econd, this was a unique case as
prosecution of the accused was
initiated on the filing of applica-
tion for discharge by them. It was found
that the main chargesheet filed by the
police after registration of FIR No.
105/81 was not available either with the
police or in the court records. The
Ministry of Home Affairs was unable to
trace the documents regarding the pros-
ecution sanction given in the case. The
Court agreed with the submission that it
could not do any guesswork about the
grant or refusal of sanction for prosecu-
tion or about the proceedings in the
main chargesheet in the case.
The presence of the accused or pro-
viding them a hearing is not necessary
for grant of sanction under Section 196,
CrPC. No investigation was carried out
against Tejinderpal after his return to
India after serving a sentence in Pakis-
tan. Judge Pandey held: “Prosecution
case must stand on its own legs. It can-
not take benefit of the weakness of
defence. Conviction of accused would
make them liable to death penalty or life
sentence. Graver the punishment, high-
er the burden of proof. The court must
weigh all probabilities, legal and techni-
cal, to satisfy that there is no bar against
trial and that all requirements are
proved by prosecution beyond reason-
able doubt.
“If a reasonable doubt arises regard-
ing the guilt of the accused, the benefit
of that cannot be withheld from the
accused. The courts would not be justi-
fied in withholding that benefit because
the acquittal might have an impact upon
the law and order situation or create
adverse reaction in society or amongst
those members of the society who
believe the accused to be guilty. The
guilt of the accused has to be adjudged
not by the fact that a vast number of
people believe him to be guilty but
whether his guilt has been established
by the evidence brought on record.”
The court further said that “it is not
bound by the judgment of Special Judge
at Pakistan and an independent appreci-
ation of evidence is required to be done
on the basis of evidence led in the court
itself. The record on the basis of which
judgment was passed by the Pakistan
court, the charge-sheet, evidence, etc. is
not available before this court....
Reference of the earlier conviction by
the Pakistan court does not justify the
judgment or the reasoning in order of
conviction but only to highlight that the
accused might not be subsequently tried
in India.”
In the absence of identification and
description of specific role of each
accused by witnesses, the Court was of
the view that the prosecution miserably
failed to prove charges under Section
121 or 121A of the Indian Penal Code
against them.
Intheabsenceofidentificationand
descriptionofaspecificroleofeach
accusedbywitnesses,theCourtwasof
theviewthattheprosecutionmiserably
failedtoprovethecharges.
COURT GRANTS RELIEF
A Delhi-Srinagar IA flight was hijacked in
1981; (facing page) Tejinderpal Singh (far
left) and Satnam Singh have been acquitted
Wikipedia

India Legal 10 September 2018

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