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India Legal 11 February 2019


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Squeezing the Defaulters
The Insolvency and Bankruptcy Code to deal with the NPA crisis will tilt the power away from debtors by forcing them to sell their assets

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India Legal 11 February 2019

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I February11,2019 Rupinder Suri: Bar Council debate Brexit: A State of Emergency? TheInsolvencyandBankruptcyCodetodealwiththeNPAcrisiswilltiltthepower awayfromdebtorsbyforcingthemtoselltheirassets SqueezingtheDefaulters
  2. 2. UDGET 2019 will make headlines for a couple of weeks because of unprece- dented tax sops to middle class wage earners and related election-eve gifts such as direct subsidies to poorer farm- ers, but will it improve the Indian economy in the long run? Can it compensate for the bashing that the nation’s overall commercial, agricultural and business welfare taken from hastily conceived and ham-handedly imposed measures such as demon- etisation and GST? Actually, the real story last week—even though temporarily eclipsed by the good-feel budget—was the government’s clumsy and undemocratic attempt to suppress the real data showing the true state of the economy: unemployment figures. They were shocking beyond belief. Instead of having created an extra four crore jobs as the government had promised in 2014, it wound up raising the unemployment figure to over six percent—the worst in 45 years in 2017-2018. The labour force participation rate too, has plummeted to a momentous low of 37 percent. Small wonder then that the ruling party was trying to hide this figure from the public by refus- ing to release the report prepared by NSSO, caus- ing two top statisticians of this prestigious and politically neutral agency to resign in protest. The Centre for Monitoring Indian Economy (CMIE) had earlier cited similar figures. Fudging political- ly unpalatable figures—as this government has repeatedly done—such as GDP growth, RBI cri- tiques, NPA realities, downturn in industrial pro- duction—is ultimately self-destructive. Running away from harsh economic realities not only dis- torts the country’s participation in the global economy but also deters the initiation of remedial fiscal, monetary and developmental policies. When you refuse to recognise the existence of a problem, you cannot possibly fix it. And the Indian economy which was zipping along at a robust growth rate and creating jobs prior to 2014-2015 has undeniably hit a brick wall. The government, even in the face of reports from its own officials and the central bank, has refused to recognise that demonetisation and the disastrous implementation of GST were catastrophic for farmers and the unorganised sector. Subsidies and tax relief are band aid remedies which skirt the issue of basic structural reforms which this government has stubbornly refused to undertake. The evidence has been staring it in its face. There were ground-level, grassroots warn- ings aplenty. The devastating NSSO unemploy- ment figures prove that the most recent drubbing received by the BJP in the heartland states of Madhya Pradesh, Rajasthan and Chhattisgarh was no accident. It was a groundswell rejection of the government’s economic policies and refusal to atone for the sin of demonetisation. But the gov- ernment remains in denial. Only a few months back, countless thousands of farmers converged on Delhi from all across the country demanding a joint session of Parliament to acknowledge the ballooning agrari- an catastrophe, the implementation of the MS Swaminathan Commission report, increased mini- mum support prices and passing of the Farmers’ Freedom from Indebtedness Bill, 2018, and Farmers’ Right to Guaranteed Remunerative Minimum Support Prices for Agricultural Commodities Bill, 2018. These bills were tabled in the Lok Sabha in August by Hatkanangale MP Raju Shetti, the leader of the Swabhimani Paksha, an independent farmers’ political party in Maharashtra. The umbrella organisation for the farmers’ rally is the All India Kisan Sangharsh Coordination Committee, a union of roughly 200 farmer groups. A similar, unprecedented farmers’ march took place earlier last year in Maharashtra when they trekked to Mumbai to demonstrate their growing economic misery. Couldn’t the government sense that a massive crisis was at hand and address it head-on instead of talking about bullet trains and sea planes and “collusion with Pakistan”? Shortly afterwards, in June 2018, the BJP received a polit- ical drubbing in the bypolls across India. ECONOMIC FOLLIES Inderjit Badhwar Letter from the Editor B Fudgingpolitically unpalatable figures—asthe Modigovernment hasrepeatedly done—suchasGDP growth,RBI critiques,NPA realities,downturn inindustrialproduc- tion—isultimately self-destructive. Runningawayfrom harsheconomic realitiesnotonly distortsthe country’sparticipa- tionintheglobal economybutalso deterstheinitiation ofremedialfiscal, monetaryanddevel- opmentalpolicies. | INDIA LEGAL | February 11, 2019 3
  3. 3. A day after the results poured in, The Indian Express carried two headlines on its front page: “Opposition Parties Take 11 of 14 Assembly and Lok Sabha Seats”. Side by side, it ran a feel-good headline for the ruling party: “Good Rabi Crop, Uptick in Factory Output Lift GDP up to 7.7 Per Cent”. It made no sense whatsoever. How could the economy be growing at about the fastest rate in the world while the government receives a simultaneous thrashing at the hands of voters in what could be a prelude to the 2019 general elections? In Kairana, UP, which had become the riot-torn crucible for vote-catching Hindu-Muslim politics following bloody communal clashes and a religion-based exodus of population that swept the BJP and its majoritarian sabre- rattlers into power, “Jats and Muslims stepped over riot faultlines to vote together”, the Express said. J ust before the recent by-elections in the five states (where the BJP lost three and failed in the other two), I wrote: “Actually, this is an example of why statistics should be damned, and political parties should be careful of using ‘surging’ GDP and related feel-good econometrics as vote-catching electoral propaganda. It just doesn’t work. And history seems to be repeating itself. Even as assembly elections are nearing completion in five crucial states and farmers are converging on Delhi, the ruling party is playing roulette with GDP figures, re-naming cities which have Muslim-sounding names, erecting statues, playing dirty pol- itics with the CBI and trying to revive passions over build- ing a Ram temple in Ayodhya.” When a voter is unemployed, his pockets empty, jobs decreasing, diesel and petrol prices skyrocketing, mandis in distress, prices soaring, GST raising the cost of anything you touch, markets shrinking and uncountable jobs sacrificed at the altar of economic adventurism like demonetisation which failed to distinguish between a “black economy” and a cash-based economy, he’s going to punch you right in the nose when you tell him you stand for the farmer and the working man. They are not “playing victim” as some would have us believe. According to Sujan Hajra, chief economist at Anand Rathi, a financial analysis firm, India has one of the world’s highest food spoilage rates; one of the world’s lowest per capita productivities and farmer incomes; poor rural roads affecting timely supply of inputs and transfer of out- puts; inadequate irrigation systems; poor seed quality; inef- ficient farming practices; harvest spoilage causing over 30 percent of wastage and lack of organised retail and compet- ing buyers. Their grievances cut across identity lines—no returns on investment, loans they couldn’t repay, inadequate support prices, unrequited money from the sales of their cane, sui- cides and their kids dying in hospitals because of lack of oxygen. Farmers are part of India’s large unorganised sector. (There is abysmally low productivity in the farm quarter— 50 percent workforce and just 16 percent GDP.) As pro- fessor Arun Kumar, one of India’s best known international economists, notes, this (total unorganised sector) is 93 per- cent of total employment and 45 percent of total output. Data for this sector is not available in the routine because it is dispersed across the length and breadth of the country in tens of millions of small and cottage units which do not report their data to any agency. The largest component of the unorganised sector is agriculture, constituting 45 per- cent of the workforce and 14 percent of the total output of the economy. Data for agriculture is collected for each of the growing seasons and becomes available with a short time lag, but it is not collected for each quarter. The non-agriculture part of the unorganised sector con- stitutes 48 percent of the workforce and 31 percent of the total output. It is the data for this part that is not available for some years, Prof Kumar explains. One of the top demands of the farmers who marched to Parliament last week is implementation of the Swaminathan report. As one of the organisers told Scroll in a recent interview: “If they {the BJP} lose elections in all five states, then they will sure- ly implement it,” (referring to Maharashtra’s brother farm- ers in UP who had similar grievances about returns on investment, loans they couldn’t pay back, inadequate sup- port prices, unrequited money from the sales of their cane, suicides, their kids dying in hospitals because of lack of oxy- gen… but their Executive Yogi was off in Karnataka preach- ing Hinduism-in-danger and down-with-Jinnah-portraits. Immediately after Prime Minister Narendra Modi announced the demonetisation of `500 and `1,000 notes on November 8, 2016, I carried an exclusive interview with Prof Arun Kumar, considered one of the world’s leading Letter from the Editor 4 February 11, 2019 SKIRTING THE TRUTH Vice-Chairman NITI Aayog Dr Rajiv Kumar addressing a press conference in New Delhi on the job data of National Sample Survey Office PIB
  4. 4. authorities on the impact and generation of black money. Kumar predicted that not only was demonetisation the wrong way of tackling tax evasion and recovering wealth, but also that the move would have adverse political conse- quences for Modi because the poor would be the worst suf- ferers. He called it a “foolish” step. The India Legal story went viral. It also generated a chorus of trolls against critics of the Modi initiative who were labelled as supporters of tax evaders and money launderers. Immediate political results of the psychodrama seemed to favour Modi, specially in the Uttar Pradesh state elec- tions. Initially, it was a brilliant political move in which, notwithstanding their suffering, the afflicted saw their tor- ment as a temporary hardship inflicted on them by a Robin Hood figure who was punishing the rich to reward the poor, even if it meant waiting a while. Initially, Modi won the throw of the dice. The courts did not interfere. Political opposition was virtually nonexistent. His party’s obvious preference for social and cultural trans- formation over economic reform and modernisation has paid political dividends. But for how long? His constituency is not very different from Indians who did not support him. The expectation of enhanced prosperity—the acche din pledge—still rings in all ears. If you create a good slogan, you could well wind up being hoisted on your own petard. Catchy slogans, as all spin doctors will tell you, are a dou- ble-edged sword. People don’t forget them. A nd the early chickens seem to be coming home to roost. The propaganda benefits of notebandi have lived their shelf life. The biggest dividend was UP. What counts now, as the euphoria wanes, following Karnataka, the crystallisation of a viable political opposition and the recent nationwide bypolls, is the ground reality and the longer-term economic consequences. Manufacturing and construction have slumped. Private investments in new projects are at a standstill. While gross domestic product (GDP) growth was 6.1 percent, gross value added (GVA) growth—a metric that more economists now favour as it excludes indirect tax collection—slowed even more sharply in the fourth quarter to 5.6 percent, compared to 6.7 per- cent in the third quarter, says another recent study. These figures have not been conjured up by propagan- dists. These are the latest figures from no less a source than the Central Statistics Office which the prime minister and his team can scarcely afford to ignore. And will Prof Arun Kumar have the last laugh on demonetisation? He insists that demonetisation has not only not dented the black economy, but has damaged the white economy, especially the unorganised sectors. “Forget about the loss of revenue from exporting buffalo meat after government’s ban on procuring animals from market place for slaughter, the real impact will be on India’s poorest farmers and the economy of livestock which is worth more than `3 lakh crore. It is all set to kill an economy that India’s small and marginal farmers switched over to as adaptation to uncertain monsoon and dwindling income from regular crops.” Arun Kumar bemoans the fact that “political parties are now bereft of ideology or principles—the aim is to get to power to serve the vested interests who fund them. Busi- nessmen are scared of the government and do not wish to be seen as opposed to it. With the changes introduced in the recent Budget, the fear of a raid raj has only grown. The media has been adversely impacted”. The critical decision Modi will have to make—and make very soon—is how far can he stretch the Cultural Raj at the expense of real economic growth in order to avoid the possi- bility of a popular backlash if acche din remains a chimera. And herein lies a lesson for Modi’s opponents on the Right as well as the Left not to exult in haste in the celebra- tion of the end of the Modi honeymoon. It is far from over. But there is a lot he has not done. He has NOT: cleaned up the Ganga; restored eight percent GDP growth; created three crore jobs as promised (instead unemployment is soaring in a phenomenon called “jobless growth”); intro- duced judicial reform; ended the rape and subjugation of women; rebuilt our cities or renewed urban India; acceler- ated farm production; introduced meaningful tax reform; introduced disinvestment plans; revamped Air India; cut down the bureaucracy; shut down terrorist camps in Pakistan, attracted make-in-India investment. Modi has called his latest budget a “trailer”. It will remain one if the main feature flops at the box office. Twitter: @indialegalmedia Website: Contact: | INDIA LEGAL | February 11, 2019 5 AGRARIAN CATASTROPHE Farmers at the long march organised by the All Indian Kisan Sabha at Azad Maidan in Mumbai in March 2018 UNI
  5. 5. ContentsVOLUME XII ISSUE13 FEBRUARY11,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 February 11, 2019 14Creditors First The Insolvency and Bankruptcy Code is an excellent step in the development of modern bankrupt- cy laws because it gives greater power to creditors than debtors, forcing the latter to sell assets LEAD 20Poll Vault As election season begins, the centre has sought permission from the apex court to transfer land near Ayodhya’s disputed site to a trust leading the campaign for construction of the Ram Mandir 18Fabricated Guilt In a recent case, the Supreme Court acquitted three persons who had been convicted of multiple murders and sentenced to death, pointing out major loopholes in the police case SUPREMECOURT
  6. 6. | INDIA LEGAL | February 11, 2019 7 Turbulent Waters REGULARS Followuson Twitter:@indialegalmedia Cover Design and Illustration: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Durbar.............................12 Media Watch ..................49 46 STATES Chaotic Times The hysteria over “no-deal” Brexit has reached fever pitch in Britain. Government officials are considering declaring a state of emergency if the situation so demands 38 Courting Caste 44 The Karnataka cabinet has cleared a bill to continue implementing reservation in promotions for SCs/STs even though the matter is pending in the apex court GLOBALTRENDS Roar Ends in Whimper Feisty House speaker Nancy Pelosi resisted the charms of President Donald Trump and he has caved in over his demand for a $5.7-bn partial wall with Mexico COLUMN 40 Room for More Despite all that has been done for the transgender community by Tamil Nadu, the Madras High Court has asked whether it can reserve government jobs for them 26 COURTS All is Not Well The Comptroller and Auditor General’s report on the National Rural Health Mission in Chhattisgarh paints a bleak picture of healthcare in the state 32 FOCUS Commendable Move With the creation of a national bench of the GST Appellate Tribunal, indirect tax disputes are likely to be settled, making things easier for taxpayers and taxmen 36 COMMERCE In an attempt to further boost tourism, the Gujarat government has cleared two ponds near the Sardar Sarovar Dam of crocodiles so that seaplane services can take off 22Don’t Pass the Buck The BCI’s plea for an annual budget for lawyers must be backed by a detailed study on the needs of advocates and the legal system, says Rupinder Suri, former president, Supreme Court Bar Association MYSPACE Vendetta Wars The recent CBI raids on Samajwadi Party politicians and officials, including former UP Chief Minister Akhilesh Yadav, in multiple cases point towards pre-poll manoeuvres to hobble them 28 PROBE
  7. 7. 8 February 11, 2019 “ RINGSIDE “We are unique in the world that we are enriched by so many cultures, religions. Now they want to squash us into one culture. So it is a dangerous time. We do not want to lose our richness....” —Author Nayantara Sahgal at an event organised by Marathi writers and artistes in Mumbai “I continue to have faith and belief in my conduct as a profes- sional and I am cer- tain that truth will ultimately prevail.” —Former MD & CEO ICICI bank Chanda Kochhar after being sacked with retrospective effect “I have been a Parlia- mentarian seven times, but I don’t take a single anna of MP’s pension. I don’t even take MLA allowance. I paint because I am passionate about it, not because I want to make a living....” —West Bengal CM Mamata Banerjee on Amit Shah’s comment that she sells her pain- tings to ponzi firm owners in the state “It will not affect me, but Congress lead- ers....If they want to continue (with Sidd- aramaiah) I’m ready to step down, they must think about all these things... they are crossing a line.” —Karnataka CM HD Kumaraswamy, after a Congress MLA said that former CM Sidd- aramaiah should again take charge “If you love your chil- dren, vote for those who are working for your children. And if you don’t love your children, vote for Modiji… You can either do deshbhakti or Modibhakti. It’s not possible to do both.” —Delhi CM Arvind Kejriwal, addressing school students and parents “I’m trying to finance a channel, to set up a channel called Harvest...(but) this government doesn’t want to give us a licence. We got a licence ultimately. Then this afternoon, suddenly it was shut down…I’m talking about how dissent is stifled....” —Congress leader Kapil Sibal on his fledgling TV channel “People like political leaders who show them dreams. But if those dreams are not fulfilled, the people thrash these leaders.” —Union minister and senior BJP leader Nitin Gadkari, at the launch of a BJP-affili- ated transport outfit in Mumbai “Nobody says don’t earn. You are joining profes- sion to earn. Unlike any business, what is the most admired about this profession is that you can earn a lot by maintaining moral and ethical values, which in some of the other professions, maybe in some businesses, have to be sacrificed.” —Supreme Court judge Justice AK Sikri, speaking at the convocation of Gujarat National Law University, Gandhinagar
  8. 8. Courts | INDIA LEGAL | February 11, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team SC takes stock of detention centres The Supreme Court admitted a petition challenging the compulsory recitation of Sanskrit and Hindi hymns during the morn- ing assembly sessions of 1,125 Kendriya Vidyalayas (KVs) spread across various states in the country. The petition has been put up for hearing before a five-judge con- stitution bench of the apex court. It specifi- cally challenges the daily singing of the prayer “Asato Ma Sadgamaya” in KVs. It has been filed by Veenayak Shah, a lawyer belonging to Madhya Pradesh, who claimed that his children have schooled in a KV. The petition urged the Supreme Court to ask KVs to “dis- continue any form of prayer from the morning assembly or otherwise”. Shah argued that making children begin their day by reciting prayers impedes incul- cation of a scientific temperament in them. He further contended that this practice vio- lates the fundamental rights guaranteed under Articles 28(1) and 19 of the Constitution. The Nani Palkhivala birth centenary celebrations began on January 16 in New Delhi in a big way. To mark the occasion, a book, Bemisal Palkhivala: Ek Prerna Shroat, has been released. The book, the first such work in Hindi, has been author- ed by Maj Gen Nilendra Kumar (retd), who was Director, Amity Law School (2009-16). The 116-page book, with over 50 pictures, carries a sketch of Palkhivala’s life and the fine qualities that led to his success in advocacy. It has an interesting collection of his quotes. The foreword of the book is by TN Chaturvedi, former governor of Karnataka and Kerala and member of the Rajya Sabha. It has been pub- lished by Newgen Digital Works. 100 years of Nani Palkhivala’s birth Constitution bench for KV plea The Supreme Court agreed to hear a joint petition of the centre and an organisa- tion working for the Bhopal gas tragedy victims for a five-fold increase in the com- pensation awarded to them. The petition was filed by Gas Peedit Mahila Udyog Sangathan convener Abdul Jabbar in 2004. The petitioners have sought `7,413 crore from Union Carbide Corporation (US) for the MIC leak that killed 5,000 and maimed over five lakh people in December 1984. In 2010, the UPA government supported the petition and the Court clubbed the two peti- tions. After a gap of nine years, the apex court has decided to take up the petition for hearing. The hearing is likely to be held sometime in April. Bhopal gas victims may get second lease The Supreme Court sought detailed information from the centre about detention centres in Assam. A bench comprising CJI Ranjan Gogoi and Justice Sanjeev Khanna was hearing a petition filed by activist Harsh Mazumdar on the condition of deten- tion centres in Assam and their inmates. The apex court asked the centre to provide the exact number of detention centres and the number of foreigners living in each of the cen- tres. The bench also sought informa- tion about the period of detention of detainees and the status of their cases. The bench asked the centre to submit all the details within three weeks and posted the matter for fur- ther hearing on February 19. The Supreme Court allowed Karti Chidambaram, son of senior Congress leader P Chidambaram, to travel abroad but only after depositing `10 crore with its registry. The apex court asked Karti to appear before the Enforcement Directorate on March 5, 6, 7 and 12 for questioning in con- nection with the INX Media and Aircel Maxis cases, saying, “Don’t play around with the law”. “You go wherever you want to go between February 10 and 26 but you must coop- erate with the investigation,” a bench led by CJI Ranjan Gogoi said. “Please tell your client that he will have to cooperate. You have not cooperated. We wanted to say a lot of things. We are not saying them right now,” the bench further said. Karti Chidambaram gets SC nod to travel abroad
  9. 9. 10 February 11, 2019 ISTHAT Which offences can be compounded under the Indian Penal Code (IPC), 1860? Certain offences punishable under the IPC can be compounded under Section 320 of the Criminal Procedure Code (CrPC). These include offences under Section 298 (uttering words deliberately to insult the religious sen- timents of a person); Section 323 (voluntari- ly causing hurt); Section 334 (voluntarily causing hurt on provocation); Section 447 (criminal trespass); Section 500 (defama- tion); Section 312 (causing miscarriage to a woman), etc, of the IPC. These offences can be compounded by the person who was a victim of the offence. The victim may resort to a compromise, and the accused may be discharged from the offence. Abetment of these offences may be compounded in a similar manner. Where an accused has already been convicted and an appeal is pending, no such compromise can be rea- ched without the permission of the court. Do persons deriving income from agricul- ture need to pay income tax on it? Persons earning money through agriculture do not have to pay income tax, as agricul- tural income is exempted under Section 10 (1) of the Income Tax Act, 1961. Sec- tion 2 (1A) of the Act defines agricultural income to include “any proceeds from growing and sale of crops, income from sale of seeds, rent received from a land used for agricultural purpose, profits rec- eived from a partner from a firm engaged in agricultural activities”. However, by virtue of the Finance (No. 2) Act, 2014, a person whose agricultural income exceeds `5,000 in the previous year, and if his income excluding the agricultural income exceeds the basic exemption limit, then such persons will be required to be pay tax on agricultural income. This is a method of levying tax on agricultural income in an indirect manner. Agricultural Income is Exempted under I-T Act —Compiled by Sankalan Pal Certain Criminal Offences Can Be Compounded Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What are the rules dealing with arrests and interrogation of a female witness? While arresting a woman, certain rules have to be followed. Section 46 (4) of the Criminal Procedure Code (CrPC) provides that except in certain situations, no wom- an can be arrested after sunset and before sunrise. If there are exceptional conditions, a woman police officer must obtain prior permission from the judicial magistrate within whose jurisdiction the offence was committed. According to Section 51 (2), CrPC, a woman can be searched only by a woman police officer while maintaining strict decency. Further, Section 160, CrPC, permits female witnesses to record their statements at their residence. While arrest- ing a woman, the presence of a woman officer is mandatory, and women must be kept in separate lock-ups from men. Under Section 53 (2), if a woman is required to undergo a medical examination, it must be done only by or under the supervision of a female medical practitioner. Certain Rules Apply to Arrests of Women ? Twitter: @indialegalmedia Website: Contact: Can a police officer refuse to perform his duties of taking charge of a matter, helping someone etc., by saying he is off-duty? According to Section 22 of the Police Act, 1861, a police officer is always on duty and may be employed as a police officer at any time. This means that a police officer, whether in uniform or not, cannot refuse to help someone, or to perform any such obli- gations as expected to be performed as an officer to preserve law and order in society. Section 23 of the Act enumerates the duties of a police officer. A police officer has a duty to try to prevent the commission of an offence and bring offenders to justice. A police officer may lawfully enter a gaming shop or drinking shop without a warrant. He is also dutybound to execute all the orders issued to him by any competent authority. A Police Officer is Always on Duty
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  11. 11. 12 February 11, 2019 The Republic Day parade clearly was a massive tribute to Mahatma Gandhi, with nearly every tableaux dedicated to the Father of the Nation. However, there was also one clear irony that was writ large on the gala event. For a party that came to power promising a Congress-mukt Bharat, Prime Minister Narendra Modi’s BJP ensured that one of the lasting sym- bols of the Congress party of yore— the Gandhi topi—was firmly back in vogue, if only for the day. Though the topi draws its name from the Mahatma, everyone recog- nises its staunchest patron to be the man Modi and Amit Shah love to hate—Pandit Jawaharlal Nehru. While the current crop of Congress leaders seems to have tucked the topi away, sporting it only at events like the party’s plenary ses- sion or national executive meets, BJP governments—at the centre and in most states—ensured that the caps were on wide display on Rajpath, bringing back memories of the Neh- ruvian era. Among the few states that departed from the Gandhi-themed tableaux was Congress-ruled Punjab which revived its Jallianwala Bagh massacre theme to commemorate 100 years since the brutal killings. Evidently, as Modi and Shah try to appropriate icons like the Mahatma and Sardar Patel for want of even a single founding father of independent India among the BJP’s own ranks, eras- ing the Congress’s legacy and symbolism is going to get tougher. What more could Rahul Gandhi want in these testing times of reviving the Congress’s fortunes? If the buzz in the corridors of 24, Akbar Road is anything to go by, Varun Gandhi may quit the BJP in the run-up to the general election due in April-May, citing the Modi government’s apathy towards farmers and marginalised communities as the reason. Congress insiders say that Varun would seek re-election from Sultanpur, adjoining the Nehru-Gandhi family’s pocket borough of Amethi and Rae Bareli, on a Congress ticket. Even more interesting is the gossip around the political machinations of Maneka Gandhi. Her bitterness against Sonia Gandhi is often cited as the rea- son why the “Other Gandhis” continue to be in the BJP. Varun has always maintained cordial relations with his elder cousins—Rahul Gandhi and Priyanka Vadra. It is believed that Varun’s homecoming is being carefully orchestrated by Priyanka. If things go as planned, Varun may even get a chance to lead the Congress in central UP while Priyanka heads the campaign in the eastern districts. The delay in Varun’s departure from the BJP is being attributed to some stringent conditions put forth by his mother. Maneka is willing to contest as an independent from her stronghold of Pilibhit provided the Congress, SP and BSP jointly support her candidature. She also wants an assurance that Varun will get important responsibilities in the Congress. Will Rahul agree and help re- unite the Nehru-Gandhi pack? YET ANOTHER BOMBSHELL? BJP’S GANDHI TOPI While India and Israel celebrated their 27th year of diplomatic relations last week, national security cir- cles spread the word that Israeili PM Benjamin (Bibi) Netanyahu would probably visit Delhi in mid-February. Both countries are prepar- ing for elections. Israeli National Security Adviser Meir Ben-Shabbat recently visited India and met with Prime Minister Narendra Modi as well as national security chief Ajit Doval. Israeli newspaper Haaretz reported that Ben-Shabbat flew on an Air India flight from Israel through Saudi airspace, which is one of the results of the understandings reached during Netanyahu’s previous visit to India where he bonded well with the Indian premier. Both share right-wing views on the “containment” of Islamists. Defence analysts reveal that India is interested in an addi- tional security deal with the Israeli arms industry. During Netanyahu’s previous visit, a deal was made to purchase anti-tank Spike missiles. According to official data from Israel, 58 percent of Israeli arms exports goes to Asian and Pacific countries. This number was greatly influenced by a deal between India and Israel Aerospace Industries for two billion dollars. BIBI AND NAMO An inside track of happenings on the national stage
  12. 12. | INDIA LEGAL | February 11, 2019 13 Twitter: @indialegalmedia Website: Contact: Going by Mayawati and Akhilesh’s announcement, the Opposition’s grand alliance, at least in UP, has fallen apart prematurely. Bua and Bhatija have declared that their parties will contest 38 seats each. They have left two seats for “other” parties and will support the Congress in its family bastions of Amethi and Rae Bareli. Rahul Gandhi too has declared that his party will contest all seats in UP. Priyanka Gandhi Vadra’s political debut as the party general sec- retary in charge of eastern UP too sig- nals that the Congress wants to aggres- sively reclaim lost ground in the state which was its bastion over three decades ago. Many believe that the respective stands of the BSP, SP and Congress chiefs are mere grandstanding and that readjustments will be made closer to the Lok Sabha polls. Authoritative sources say the contrary and cite two reasons. The SP-BSP combine is likely to play to its strength by fielding a substantial number of Muslim, OBC, SC and ST candidates. Had the Congress joined the alliance, it would have had to do the same and the BJP would have consoli- dated the upper caste vote, riding high on the Modi government’s Bill providing 10 percent quota for the economically weaker sections. However, the Congress is now free to field several upper caste faces in UP aside from giving its usual share of SC, ST, OBC and minority can- didates. It hopes that the strategy will help in a better consolidation of voters against the BJP than a formal grand alliance would have achieved. All its prominent faces in the state—from Rahul and Priyanka to Jitin Prasada, RPN Singh, Raj Babbar, Pramod Tiwari— belong to the forward castes anyway. The BJP clearly should not be cele- brating the fall of the Mahagathbandhan just yet. HOLD YOUR HORSESRahul Gandhi’s surprise announcement that if voted to power at the centre later this year, his party would ensure a Minimum Income Guarantee (MIG) for every poor Indian, has left the BJP stunned and proponents of fiscal pru- dence fuming. Gandhi’s Twitter announcement came days ahead of the Modi government’s presentation of its final Union Budget, on February 1, before the Lok Sabha polls. There has been speculation that to beat the huge voter dissatisfaction it faces on account of growing unemploy- ment, the Modi government is likely to break with convention and announce a full Budget instead of an interim one. A highlight of the fiscal statement could be declaration of a Universal Basic Income (UBI) scheme. By pre-empting what the Budget may announce, Rahul stole some of the thunder from an obviously populist move. It also complements Rahul’s con- tinued diatribe against the Modi government’s failure to tackle unemployment and poverty. Congress insiders say that Rahul’s discussions with econo- mists—including the venerable Professor Arun Kumar who has been scathing in his criticism of Modi’s de- monetisation and the GST rollout on macro, small and medium enterpris- es—on the blueprint for an MIG have been on for nearly six months. The Congress manifesto and vision docu- ment for the Lok Sabha polls is expect- ed to have a detailed chapter on how the MIG will be rolled out. The mani- festo committee, chaired by P Chidambaram, believes that a compre- hensive MIG would be the party’s big ticket promise and be billed as the nat- ural corollary to the UPA-era social out- reach scheme, the MGNREGA. It will be interesting to see if Rahul has sufficiently shocked the Modi gov- ernment to hit back with a counter punch when Piyush Goyal tables the Union Budget. ONE-UPMANSHIP? The Republic Day celebrations threw up another visual that would have left Prime Minister Modi and his party pre- sident, Amit Shah, seething—that of Rahul Gandhi and Union minister Nitin Gadkari seated together, exuding a bonhomie rarely seen these days between Congress and BJP leaders. Gadkari has emerged as a sort of Leader of Opposition within the other- wise sycophantic cadre of the BJP that has become as enamoured of the Modi-Shah duo as Congress leaders are of the Nehru-Gandhi clan. The Gandhi-Gadkari photo-op comes at a time when the Union minister has been regularly taking potshots at Modi and Shah’s style of leadership amid rumours that he nurses ambitions of emerging as the consensus PM candi- date of the NDA coalition four months from now if Modi fails to deliver a 2014- like landslide victory for his party in the Lok Sabha polls. Gadkari, known now as the man the RSS may consider as a Modi alterna- tive, has emerged as an unwanted conscience keeper of the prime minis- ter and the BJP president. He has warned against “artificial marketing”, making tall poll promises and failing to deliver on them, and believing that good oratory skills alone can help win elections. While he has said all this without naming the person the jibes are against, the target is obvious. R-DAY OPTICAL Durbar
  13. 13. Lead/ Insolvency and Bankruptcy Code 14 February 11, 2019 HE continuous entry and exit of companies is a nat- ural feature of free market economies. When a pro- ductive entity fails, there is a cost to society, and bank- ruptcy laws are required to protect the contractual rights of interested parties and to allow for the orderly liquidation of the firm’s assets to maximise its value. A good bankruptcy law has to bal- ance several objectives. It has to protect the rights of creditors and other stake- holders—essential to the development of stable credit markets—and prevent the premature liquidation of viable firms— essential to risk-taking and entrepre- neurship that drives economic growth. There are two kinds of bankruptcy laws. In liquidation bankruptcies, also known as “creditor in control” laws, debtors must surrender their property, which is subsequently sold, and the pro- ceeds distributed to creditors. In return, all debts are permanently discharged. In reorganisation bankruptcy laws, also referred to as “debtors in possession” laws, debtors are allowed to keep their T ThoughtheIBCisawelcomestepinthedevelopmentofmodernbankruptcylaws,itgivesmore powertocreditorsthandebtors,forcingthelattertosellassetsatdiminishedvalue By Sanjiv Bhatia LEFT IN THE LURCH Homebuyers including those who bought flats in real estate projects have been badly hit by several builders going insolvent Creditors’ Paradise
  14. 14. property, but must agree to a reorgani- sation and repayment plan. In return, the court provides a moratorium on creditor claims to allow the debtor time to reorganise and rehabilitate. The 2015 World Bank Ease of Doing Business Index ranked India 135th out of 190 countries on ease of resolving insolvency. Insolvency resolution in India took 4.3 years on an average, com- pared with the UK (one year), the US (1.5 years) and South Africa (two years). To consolidate the vast array of frag- mented and often conflicting laws on insolvency, the government passed the Insolvency and Bankruptcy Code (IBC) in May 2016. The salient feature of this law was a paradigm shift from a “debtor in possession” to “creditor in control” regime. In effect, the law now gives greater power and leverage to creditors than debtors. There is now increased pressure on debtors as any whiff of in- solvency could trigger a change in cor- porate control. Many developed countries have shied away from creditor-in-control laws as they increase the risk associated with borrowing and inhibit business owners from borrowing. Even an otherwise sound business can go through periods of revenue and profit stress due to macroeconomic and industry-specific | INDIA LEGAL | February 11, 2019 15 factors—the real estate sector in India is a good example of this. Even if a company’s debt is small in relation to its market value, creditors could force the sale of all its assets, often at dimin- ished values. This is especially painful for small and medium-sized businesses where the owner-promoters have a lot of personal goodwill invested in the firm. Academic studies have shown that economic activity is affected in countries with bankruptcy laws that increase the risk of borrowing. A major thrust of most bankruptcy laws is to prevent wanton destruction of the value of a distressed firm. Insolvency laws in most countries differentiate between “financially distressed” firms and “economically distressed” firms. A financially distressed company may be an otherwise viable company (producing goods and services that soci- ety wants), but for a multitude of rea- sons is currently unable to service its debt. Such companies are more valuable if their assets are kept together as a functioning unit rather than sold off on a piecemeal basis. The value of such a firm can be preserved by restructuring its debt or selling parts of it. Pushing viable businesses into liquidation, inst- ead of allowing for successful restruct- uring, destroys their value and imposes unnecessary cost on all its stakeholders. T he Indian Bankruptcy Code (IBC) has been written to cure a legacy of unscrupulous promoters who successfully gamed a moribund judicial system to create endless delays and legal tangles to keep creditors at bay. The current banking crisis is par- tially the result of a long history of unscrupulous borrowing. The focus of the bankruptcy law is, therefore, on pro- viding relief to creditors and not neces- sarily on preserving the market value of financially distressed companies. “The defaulter’s paradise is lost,” noted the Supreme Court in a recent ruling on the constitutionality of the IBC, clearly sug- gesting that the focus of the law was JusticesRFNarimanandNavinSinha(right)oftheSupremeCourtnoted,“The defaulter’sparadiseislost”inarecentrulingontheconstitutionalityoftheIBC, clearlysuggestingthatthefocusofthelawwastoprotectcreditors(especially financialcreditors)fromunscrupulousdefaulters. Anil Shakya
  15. 15. to financial creditors over operational creditors, citing the fundamental right to equality under Article 14 of the Constitution. The Supreme Court dismissed the Article 14 argument, stating that there was a difference in the relative importance of financial creditors because repayment of debt allows the capital to be re-injected into the economy and is vital for economic growth. The preference given to financial creditors is troubling, given the judicial system’s dismal record on enforcing contracts. Operational credi- tors, while not direct lenders of money to the company, provide goods on credit and these contractual arrangements can often be more useful to a business than bank debt. But enforcing these unsecu- red contracts in Indian courts is a long and hard process which often leaves operational creditors without remedy. It is time for the judicial system to step up and expedite the enforcement of con- Lead/ Insolvency and Bankruptcy Code 16 February 11, 2019 to protect creditors (especially financial creditors) from unscrupulous defaulters. The IBC mandates the resolution of insolvency within 180 days (extendable by 90 days if a majority of creditors agree) and allows creditors to initiate the process. This bias in the IBC towards creditor-driven insolvency reso- lution could push companies into liqui- dation and destroy their market value. Insolvency resolution under the new law relies on the vote of financial creditors whose interest in recovering their claims (and cutting losses) may predispose them to sell off the company’s assets rather than evaluate the risk of restruc- turing it and allowing existing debtors to continue operating it. Data from the Insolvency and Bankruptcy Board of India confirms this—almost 80 percent of the cases admitted for insolvency res- olution since the enactment of the law have resulted in liquidation. R ecently, the constitutionality of the IBC was challenged on three grounds. A PIL was filed by aggrieved homeowners who, as unse- cured creditors, were left without a rem- edy during the insolvency of several real estate companies. They challenged the constitutionality of the preference given TheEssarSteelcaseshowshow wealthtransferoccursunderbank- ruptcylawsthatfavourcreditors.Its majorcreditor,theSBI,caninfluence thesaleofEssartobidderArcelor evenifitresultsinatransferofwea- lthfromtheminoritycreditorsand existingshareholders,theRuias,led byPrashantRuia(left),toArcelor. BOLD MOVE Minister of State for Finance and Corporate Affairs, Arjun R Meghwal at the first Insolvency and Bankruptcy Board meeting in 2016 UNI
  16. 16. | INDIA LEGAL | February 11, 2019 17 Twitter: @indialegalmedia Website: Contact: The verdict will have an impact on some significant insolvency cases such as that of Essar Steel. The debt-laden company was put up for sale under the IBC, and all the lenders approved Arcelor Mittal’s bid of `42,000 crore for the company’s assets. Essar Group’s pro- moters, the Ruia family, realising that the economic value of the firm was higher than Arcelor’s bid, have since sought to regain control by pledging to repay the entire amount of `54,000 crore that is owed. Under Section 12A of the IBC, the Ruias might be able to regain control if they can convince 90 percent of the lenders to withdraw the insolvency petition. But Arcelor Mittal is arguing that Section 29A of the IBC prevents the errant promoters (Ruias) from regaining control of the company. The Essar Steel case is an excellent example of the wealth transfer that occurs in bankruptcy laws that favour tracts. Similar to the time-bound insol- vency resolution in the IBC, all contract disputes must be settled in court within 180 days. It is essential to pair judicial efficiency with a good bankruptcy law to create an effective financial system. Studies have shown that if enforcement of contracts is strong, debtors and credi- tors try to avoid risky behaviour, thereby reducing the chances of financial dis- tress and bankruptcy. T he second challenge to the IBC was against the broad sweep of Section 29A, which bars not just the existing promoters but also individ- uals or entities “related” to them from attempting to take over the ailing com- pany. These provisions are intended to ensure that errant promoters do not game the system by claiming debt relief and then repurchasing the company (at a lower price) through the resolution process. The petitioners had argued that such a blanket ban does not distinguish between unscrupulous promoters and those who can’t pay their debt for other reasons (a poor economy, for example). They argued that this provision violates Article 14 of the Constitution by treating “unequals as equals”. The Supreme Court rejected the argument that Section 29A of the IBC violates Article 14, and clarified that the definition of a related person would mean only persons connected with the business activity of the insolvent company. The third challenge was to Section 12A of the IBC which requires 90 per- cent of the Committee of Creditors (CoC) to approve the withdrawal of an insolvency petition filed against a corpo- rate debtor. It was argued that this Section gives tremendous power to the CoC to reject legitimate settlements between creditors and corporate deb- tors. The Supreme Court again ruled against the petitioners, observing that the figure of 90 percent is the domain of legislative policy, and in the absence of anything to show that it is arbitrary the Court would not encroach upon the domain of the legislature. creditors. It is clear that the enterprise value of Essar Steel exceeds `54,000 crore, but its major creditor, State Bank of India (SBI), doesn’t care. The SBI wants its `15,000 crore back, and the sooner the company is sold, the faster the bank can recover its money. Being on the CoC, the bank can influence the sale of Essar to Arcelor even if it results in a transfer of wealth from minority creditors and existing shareholders (the Ruias) to Arcelor. Despite some shortcomings, the IBC is an excellent first step in the develop- ment of a set of modern bankruptcy laws in the country. Over time, changes need to be drafted to ensure proper resource allocation, efficiency and stabil- ity, as well as equality and fairness. —The writer is a financial economist and founder, Agoodbankruptcylawmustprotectthe rightsofcreditorsandotherstakeholders andpreventprematureliquidationof viablefirms—essentialtorisk-takingand entrepreneurshipforeconomicgrowth. DOWN AND OUT Macroeconomic and industry-specific factors have created huge stress in the realty sector Anil Shakya
  17. 17. Supreme Court/ False Implication 18 February 11, 2019 HE Supreme Court recently ruled that conviction for murder cannot be awarded merely on the basis of eye- witnesses providing a gra- phic and vivid description of the manner in which the alleged off- ence was committed. The four appell- ants, belonging to a nomadic communi- ty in Karnataka, had been convicted for the gruesome murder of a man and two children in 2009 and sentenced to death by subordinate courts in the state. Acq- uitting three of them, the apex court ripped apart the police case which relied solely on the description of the commis- sion of the offence by eyewitnesses. The bench noted that an impression had been created by the police based on the allegations by the key witness in the case (a daily wage labourer) that the four accused persons had committed the murder. This impression was then car- ried into the Test Identification Parade which was held subsequently. Could this Supreme Court judgment nip the trend of false implication? Some legal experts are of the view that the police, in order to close a case, tend to manufacture false theories. And people from the lowest strata of society who have limited access to resources often face the brunt of such police negligence. Srinivas, the complainant, was work- ing as a coolie on the land belonging to one Sharanappa Gouda, which was adjacent to the land of his elder brother, Basavarajappa, in Shivapur village of Yadgiri district, Karnataka. Srinivas told the police that Basannagouda, a relative of Basavarajappa, was working as a supervisor and his two sons, Shivareddy and Srinivasreddy, were employed as coolies on the land of Sharanappa. On February 14, 2009, at around 11 pm, Srinivas informed the police of the murder of Basannagouda, Shivareddy, and Srinivasreddy. Surykanthamma, the mother of the two children, was griev- ously injured in the attack on her family in their house. Based on Srinivas’s com- plaint, an FIR was lodged against unknown persons. Srinivas also informed the police that he had heard three or four people talking in Telugu around the house at the time of the inci- dent. Recuperating in a hospital, Surykanthamma identified Palya (who belongs to the nomadic tribe, Chikgari- kara) from the photographs of suspects shown to her by the police as one of the accused. On the basis of her identifica- tion, the police concluded that the other accused too would be from the same tribe and that the motive of the crime was dacoity. The police asked Srinivas to provide graphic details of the accused, and sketches were prepared accordingly. Later, the police nabbed Basavaraj, Yankappa, and Ramesh from an area inhabited by some tribes near the loca- tion of the crime. The police recovered an axe, knives, jewellery and some cash from them, claimed to have been looted during the course of the incident. This discovery was significant as a forensic examination had confirmed that the The Malice of Fabrication Inarecentcase,theSupremeCourtacquittedthreeofthefourpersonswhohadbeenconvicted ofmultiplemurdersandsentencedtodeath,citinglackofadequateevidence By Sumit Saxena T SHOOTING IN THE DARK The police often manufacture false theories in order to close a case and wrongly implicate people from vulnerable sections of society UNI
  18. 18. | INDIA LEGAL | February 11, 2019 19 cause of death was haemorrhage possi- bly caused due to injuries inflicted on vital organs by a knife and axe. How- ever, the police could not satisfactorily establish the manner in which recovery was made from the accused. During the trial, the subordinate courts had even recorded that the assail- ants were unknown persons and there was no known motive for the crime. However, the prosecution had informed the courts that during interrogation, the accused had confessed to the commis- sion of the crime. The trial court had ruled that on the basis of the entire evi- dence available on record, it was estab- lished that the prosecution had success- fully established the guilt of the four accused persons, and sentenced them to death. This order was affirmed by the Karnataka High Court. The accused had filed a special leave petition in the Supreme Court challenging the order. The Supreme Court said that the eyewitnesses, Srinivas and Surykanth- amma, had given a graphic and vivid description of the manner in which the crime was committed by the accused persons but that was insufficient as proof of identification. The bench also took cognisance of the fact that the Test Identification Parade was held 27 days after the arrests of the accused. It added that although the lower courts had discounted the delay on the ground of procedural formalities, the prose- cution had failed to establish to the satis- faction of the court that “the eyewitnesses had correctly identified the accused”. The bench said this req- uirement was very cru- cial as the accused and the eyewitnesses were not known to each other from before. The Karnataka gov- ernment’s counsel requested the Court to consider the plight of the mother who had witnessed the horrific murder of her children. The CJI directed the state counsel not to pursue the Court with misplaced sympa- thies, as conviction could not be based on perceptions. The CJI said that proof of identification is not open to any com- promise; there must be strong corrobo- rative evidence in the absence of motive. The Court said the police theory regard- ing the recovery of an axe and knives from the accused could not be relied upon to enforce a conviction. T he Court said the police had recorded the evidence of the mother in the hospital, she was apparently asked to identify the accused from some photographs; and she could only identify one out of the four accused, Palya. The Court said that, given her trauma, it was necessary to carefully scrutinise her evidence to con- firm the identification of the accused. “We are of the view that it would be safer if some more corroborative evi- dence on the point of identification is available on record. No such evidence is forthcoming,” noted the bench. The Court said the prosecution is dutybound to show how the recovery of the articles was made in order for the evidence to be admissible under Section 27 of the Evidence Act, but no such evi- dence was forthcoming. On January 23, the Court set aside the death penalty awarded to all the accused persons other than Palya, whose sentence was com- muted to life imprisonment. Advocate SN Bhat, counsel for the accused, said: “This case is an example of the age-old malady afflicting our police and its methods of investigation. It appears that police have not taken to scientific methods of investigation even though many sophisticated tools are available. In this case, for instance, the police did not pick up any evidence from the crime scene to connect the accused to the crime like fingerprints or any other telltale pieces of evidence. The police first constructed a hypothesis that the crime was the handiwork of a tribe and went looking for the suspects from that vulnerable section of society.” Ajay Pandey, professor of law at OP Jindal Global University, told India Legal: “Fabrication of facts and false framing of innocents cannot have any place in a fair criminal justice system. The role of the police should be to pro- tect and promote truth for the criminal justice system to work well and win con- fidence of people. To this effect, as a society, we need to work to ensure urg- ent and effective police reforms. The judicial system must look into police misadventure in fabrication and ensure adequate consequences for wrongdoers. These aspects should also form a part of police training and sensitisation.” Legal experts claimed it appears that, in this case, the focus of the investiga- tion was to first determine the suspects and then procure evidence in support of their culpability. “This case once again exposes the fragility of the life and per- sonal liberties of our citizens, particular- ly those belonging to the lower strata of society,” said Bhat. “Thiscaseexposesthe fragilityofthelifeandper- sonallibertiesofourciti- zens,particularlythosefrom thelowerstrataofsociety.” AdvocateSNBhat, counselfortheaccused “Thejudicialsystemmust lookintopolicemisadven- tureinfabricationand ensureadequateconse- quencesforwrongdoers.” ProfAjayPandey, OPJindalGlobalUniversity Twitter: @indialegalmedia Website: Contact:
  19. 19. Supreme Court/ Ayodhya Dispute 20 February 11, 2019 HE government has moved the Supreme Court seeking dilution of its earlier Ayo- dhya order which had said that the centre must main- tain status quo on the 67.703 acres of land it had acquired at the site back in 1993. This comes amidst growing clamour from the Hindu-right to begin construction of the Ram Man- dir with just three months to go before the Lok Sabha polls. The Supreme Court is still undecided on when it will begin hearing the peti- tions challenging the Allahabad High Court’s verdict of 2010 that had ordered transfer of the disputed site in three parts to the three competing claimants. However, the centre wants the Court to allow transfer of a major chunk of the land—except the 0.313 acres on which the Babri Masjid stood—to the Ram Janmabhoomi Nyas, one of the parties in the title suit which is leading the campaign for construction of the Ram Mandir. “It is respectfully submitted that the acquisition took place in the year 1993 and 25 years have passed, the original landowners whose land, which were not in dispute but were still acquired, are entitled to get it back and the Central government is duty bound to restore/re- vert/hand over the same land,” read the centre’s application that was filed with the apex court registry on January 28. The application reads: “Permit the central government to restore/revert/hand over back superfluous/excess vacant land (other than the disputed land measuring 0.313 acres) to the own- ers/occupiers from whom the respective lands were acquired under the Act of 1993.” It may be recalled that the 67.703 acres of land at the site and its vicinity were acquired by the centre in 1993 through the contro- versial Acquisition of Certain Area at Ayodhya Act. On three occasions since—in the 1994 Ismail Faruqui verdict, in 2003 and then again in 2011—the Supreme Court has directed the centre, the statu- tory receiver of the acquired land under the Act, to maintain status quo at the site. The top court’s stand on the land has consistently been that the plots acquired by the centre under the Act are “intrinsically connected” and cannot be separated until the title suit is adjudi- cated. For, if the land is transferred under Section 6 of the Act, during the pendency of the hearing, “further com- plications may arise.” In 2003, a five-judge constitution bench of the Court had said: “...status quo has been maintained from 1992 on- wards…. When for a long time, a partic- ular state of affairs has prevailed—as in the present case for over a decade—and Poll Vault T DRUMMING UP SUPPORT People at a “Dharma Sabha” organised by the VHP in Ayodhya for the Ram temple Thecentre’sapplicationcomesatatime whentheRSSanditsideologicalallies havebeendemandingthattheModi governmentbringinanordinanceto enableconstructionoftheRamMandir. UNI AsthecentremovesapleaseekingtransferoflandnearthedisputedsitetotheRamJanmabhoomi Nyas,leavingaside0.313acresonwhichtheBabriMasjidstood,alleyesarenowonthetopcourt By India Legal Bureau
  20. 20. Legally speaking, Jilani may be right in his assumption that the Nyas lost its ownership right to the land once it was acquired by the centre in 1993 because land given on lease does not fall in the free-hold category and so the leasehold- er cannot assert the claim of being an owner. Though Prime Minister Narendra Modi had, in a recent interview, claimed that his government would wait for a resolution of the dispute by the Supreme Court, his colleagues in the government did not seem to share the same view. The application comes days after Union Law Minister Ravi Shankar Prasad nearly commanded the Supreme Court to rule favourably for construction of the Ram Mandir. Prasad had said: “The Ayodhya case has been pending for the last 70 years. The Allahabad High Court order was in favour of the temple (in 2010), but then it is on hold in the Supreme Court now. This matter should be cleared soon.” It is premature to state whether the top court will rule favourably on the centre’s application given the sensitive nature of the title suit. However, in the unlikely scenario of the Court granting the centre’s request, the decks will be cleared for the govern- ment to hand over a large chunk of the acquired land to its owners—a majority of them affiliated with the votaries of building the Ram Mandir. In such an event, preliminary ground- work for construction of the Mandir may com- mence before the Lok Sabha polls, giving the BJP a massive advan- tage at the hustings. The party can then reach out to the majori- ty Hindu electorate and state that it was finally fulfilling its long-stated poll promise of ensuring that a massive Ram Mandir is built at the Babri Masjid site. Not surprising, then, that the grand- standing of the Hindu-right has already begun. Even though it isn’t clear yet whether the apex court will even enter- tain the centre’s application, Hindu seers who attended the Param Dharam Sansad in Allahabad on January 30 gave a clarion call for starting the construc- tion of the Ram Mandir from February 21. Urging “all Hindus” to be ready to “face bullets for the construction of the Ram Mandir”, Shankaracharya Swami Swaroopanand Saraswati told the con- gregation that Hindus must march for Ayodhya with bricks for the shilanyas and reach the site by February 21. The build-up is reminiscent of frenzy that preceded December 6, 1992, when the Babri Masjid was demolished and the nation burned in the fires from the consequent Hindu-Muslim riots. The embers from that conflagration have not gone cold in the 26 years since. The Supreme Court can stop them from flar- ing up into an inferno. Will it? | INDIA LEGAL | February 11, 2019 21 when the adjudication of the disputes which are pending before the High Court are reaching final stages, it will not be appropriate to disturb that state of affairs.” The bench had also reiterated, per- haps with almost prophetic foresight, an observation made by the Court earlier in Ismail Faruqui that said: “…in the event of the Muslims succeeding in the adju- dication of the dispute requiring the dis- puted structure to be handed over to the Muslim community, their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by exercise of rights of ownership of Hindu owners of the adja- cent properties.” The application by the centre now comes at a time when the RSS and its ideological allies, such as the VHP and Bajrang Dal, have been demanding that the Modi government bypass the legal proceedings in the pending Ayodhya title suit and bring in an ordinance to enable construction of the Ram Mandir at the disputed site. Expectedly then, the VHP’s international working president, Alok Kumar, welcomed the centre’s application, calling it a “step in the right direction”. T he Muslim parties in the title suit have, predictably, slammed the centre’s move. The Sunni Central Waqf Board has also disputed the claim that the Ram Janmabhoomi Nyas owns 42 acres of the supposedly “undisputed” land that the centre wants to return to the trust. Zafaryab Jilani, counsel for the Sunni Central Waqf Board, told mediapersons that the Nyas was a lessee and projecting it as an original owner in a legal application was misleading. “We will challenge the centre’s move if the Supreme Court admits its applica- tion. The centre’s claim that the Ram Janmabhoomi Nyas is the owner of a major part of the land is legally wrong. This land (around 42 acres) was given to the Nyas, a wing of the VHP, in 1991 on lease. But this lease was cancelled by the 1993 Act,” Jilani said. Twitter: @indialegalmedia Website: Contact: ZafaryabJilani,counsel, SunniCentralWaqfBoard, toldthemediathatpro- jectingRamJanmabhoomi Nyasasanoriginalowner wasmisleading. ShankaracharyaSwami SwaroopanandSaraswati hasaskedtheHindusto marchtoAyodhyawith bricksfortheshilanyasand reachthesitebyFeb21.
  21. 21. My Space/ BCI Letter to PM Rupinder Suri 22 February 11, 2019, TheBarCouncilofIndia’spleaforanannualbudgetforlawyersneedsdetailedstudyandshouldbe linkedtotheirneedssothatauthoritiescannotrejectthemasbeingtoodemanding Outrageous Demands? Council of India prior to the general election in 2014. It is a fact that there is no social security for advocates. If, God forbid, a lawyer suffers from a serious accident or ailment, there is nobody to look after him or his family. This is especially so today with the shift from joint to nuclear families. While I endorse the need for a sound and well-thought-out social security scheme for lawyers, there is need for a detailed study by the Bar Council of India. The demand should be rationally linked to the need so that authorities ANAN Kumar Mishra, chairman, Bar Council of India, and a pioneer who brought the focus on practising lawyers with doubtful law deg- rees, has taken another step for the welfare of lawyers. In a letter to Prime Minister Narendra Modi on January 22, 2019, he has asked for a `50,000- crore annual budget for their welfare. The letter reminds the prime minis- ter of the assurance he gave at the golden jubilee celebrations of the Bar Anil Shakya UNCERTAIN FUTURE (Top) There is no social security cover for lawyers and the legal profession is unfavourable to many who struggle to make both ends meet M
  22. 22. | INDIA LEGAL | February 11, 2019 23 cannot reject the same at the outset as being outrageous. Anyone studying law was never given any promise or assurance that he would get a monthly stipend equivalent to `10,000 per month or a pension. The legal profession is extremely benign to a few and unfavourable for a large num- ber of lawyers. Unfortunately, there is a large segment who is not doing well and finds it difficult to make both ends meet while living a life of dignity befitting a lawyer. While National Law Universities and certain other colleges impart premium legal education, the bulk of law colleges is failing to keep up with the required standards of education. As a result, lawyers graduating from these colleges are at a distinct disadvantage as com- pared to the ones who have studied in good colleges. The buck cannot be passed by the Bar Council of India as it has been en- trusted with ensuring that the standards of legal education are consistently main- tained. There is mushrooming growth of law colleges with hardly any infrastruc- ture or good faculty. Curiously, there is hardly a law college which has been directed to be closed for this reason. There is urgent need for the Bar Council of India to do a detailed analy- sis on the needs of the justice system and advocates required in order to restrict admission in law colleges. This will ensure that there is no oversupply of lawyers. Additionally, and perhaps more importantly, there is a need to establish dedicated law academies for lawyers for providing continuous legal education on the same scale as judicial academies. The cost for these legal academies, updated infrastructure, libraries, etc., should necessarily be to the account of the judiciary budget as lawyers play a very big role in the justice delivery system. I ndependent of this budgetary allo- cation, in case things go amiss, a special provision should be made for social security and old age care for lawyers. A part of court fees should potentially be reserved for such a provi- sion. In this context, it is relevant to appreciate US President Ronald Reagan who once said: “Welfare’s purpose should be to eliminate, as far as possi- ble, the need for its own existence.” Without well-thought-out, struc- tured and cogent reasons for the demands for such a large amount, we may fall into the vicious trap of being reliant on such freebies being doled out in the garb of “welfare”. There can be no situation more dangerous than when an advocate—an officer of the court— whose focus should be upholding the interests of the client and facilitating speedy justice is diverted towards clam- ouring for these freebies. It is reiterated that there is great need for upgradation of our fraternity—not just the exterior facade but also from within. This is linked to the more pertinent, IftheBCIismakingademandforfinancial supportandissuccessfulinsecuringthe same,theremustbeacorrespondingduty uponthemtoutilisethosefundstowards dischargingtheirstatutoryduties. APPEAL FOR SUPPORT (Below) Manan Kumar Mishra, chairman, BCI; Narendra Modi addressing the gathering at the BCI’s golden jubilee event in March 2014 Anil Shakya Anil Shakya
  23. 23. 24 February 11, 2019 but less highlighted, portion of the list of demands—the need for greater partici- pation of lawyers in the justice delivery system. The important question that needs to be extricated from the list of demands in the letter is—what is required to improve the standard of lawyers, and therefore, what support is required from the Union government? If the Bar Council of India is making a demand for financial support and is successful in securing the same, there must be a corresponding duty upon them to utilise those funds towards dis- charging their statutory duties. The Advocates Act, 1961, clearly lays down the duties of the Bar Council of India and states that it shall promote legal reform and legal education. To borrow a phrase from Justice AK Sikri at a recent convocation: “Legal education isn’t over after you leave university. In fact, it begins when you start practising.” There is no doubt that a new entrant in the field of law will require adequate cushioning in monetary form. But more important is the need to impart the required skill and training to survive in the industry. In fact, in view of the ever-changing laws and progress of soci- ety, this principle ought to apply across the board, without reference to age or experience. in the United Kingdom, etc., all have mandatory provisions requiring a mini- mum number of CLE/CPD hours each year. It is interesting to note that India plays host to many international events which award these CLE/CPD hours and yet our own “regulator” does not recog- nise the same. W hile there are several essential points mentioned in the letter to the prime minister, they are rambling and most do not have any basis attached to them. Issuing such a letter with a subtle “threat” of “a massive demonstration at Delhi” (the legality/ne- cessity of which is also questionable) seriously erodes its credibility and makes a rational mind doubt the very timing of the letter and whether it is politically motivated. While dedicated allocation of funds may be the need of the hour for our fra- ternity, it is essential that the same is efficiently utilised. The demands we make through the apex regulator should not be vague and without reason. It is hoped that we do not fall prey to an accusation of ulterior motive and can have a healthy deliberation on some vital issues touched upon in the letter. It is an oft-quoted cliché that welfare was never intended to be a career opportunity. The implications of associ- ating this cliché with the legal profes- sion—which is a noble one and consid- ered to be a “calling”—is dangerous for the very existence of an independent bar and, therefore, an independent judiciary. —The writer is a Senior Advocate and former President, Supreme Court Bar Association Budget allocation would be more efficient if it is made towards organising training and academic programmes in the name of Continuing Legal Educa- tion (CLE) or Continuing Professional Development (CPD). The CLE/CPD credit system, as prevalent in most jurisdictions abroad, requires fresh law graduates and current practitioners to continue attending a required number of legal education classes for a particu- lar time period in order to achieve and maintain high standards of competency, legal awareness, legal application and professionalism. This concept is not unknown to our profession and even Professor (Dr.) NR Madhava Menon, the leading academician in our profes- sion, has made this express request to the Bar Council of India. CLE/CPD is, in fact, considered to be part of “best practices” across the globe. The New York State Bar, the Victoria Bar, Law Society for Upper Canada, Solicitors Regulatory Authority Twitter: @indialegalmedia Website: Contact: Thereisnodoubtthatanewentrantin lawwillrequireadequatecushioningin monetaryform.Butmoreimportantisthe needtoimparttherequiredskilland trainingtosurviveintheindustry. QUALITY OR QUANTITY? Students after passing out of a law college in Bengaluru. A majority of law colleges has failed to maintain high standards My Space/ BCI Letter to PM / Rupinder Suri UNI
  24. 24. Courts/ Transgenders 26 February 11, 2019 N a move replete with noble inten- tions, the Madras High Court has issued a notice to the Tamil Nadu government following a petition on transgenders. The petition wanted directions to be issued to the gov- ernment to create special reservation for the transgender community in govern- ment jobs. It was filed by P Sudha, a Chennai-based transgender activist. The petition said: “Reservation is provided for the upliftment of certain communities and women in some cases as they were oppressed and denied equal opportunities for several decades. Though transgender community people have been identified as the third gender, no proper welfare measures are being taken by the state for the community’s upliftment or empowerment. The trans- gender community is in a constant bat- tle with oppression and discrimination from all sections of society.” It added: “Providing reservation to the transgen- der community was the need of the hour. This reservation could change the face of the community and hence I pray the court direct the state government to come up with a policy to provide reser- vation to the transgender community as a special case in government appoint- ments.” However, Tamil Nadu has been a frontrunner in the welfare of transgen- ders. Both the AIADMK and the DMK had initiated several welfare schemes for them. In 2008, the DMK government had established a dedicated Transgender Welfare Board. Also in 2008, Tamil Nadu became the first state to grant third gender status to transgenders. Even the Congress went out of its way for the community when its president, Rahul Gandhi, appointed Apsara Reddy, a Chennai-based transwoman and activist, as a general secretary of its women’s wing. The Tamil Nadu government is at present giving a monthly pension of `1,000 to transgender persons aged 40 and above. “The tragedy is that very few transgenders live beyond 60 years as our average lifetime is of 40 years. This is due to health complications arising out A Change of Heart? DespiteallthatTamilNaduhasdoneforthiscommunity,the MadrasHighCourthasaskedwhetherthepresentgovernment canreservegovernmentjobsforthem By R Ramasubramanian in Chennai I ApetitionfiledintheMadrasHC by PSudha,aChennai-basedtransgender activist,hassoughtdirectionsforthe governmenttocreatequotaforthetrans- gendercommunityingovernmentjobs. Photos: UNI
  25. 25. | INDIA LEGAL | February 11, 2019 27 of surgeries that most transgenders undergo for specific physiological prob- lems,” said transgender Shanthi. One of the major problems transgen- ders face is housing. “Landlords won’t easily accept us as tenants. Even if they do, we face several problems on a day to day basis. Suddenly, without any reason, the landlord will ask us to vacate imme- diately,” revealed another transgender, Jayanthi. She said that late Chief Minister J Jayalalithaa had done a lot to help them. “Before the end of her tenure and in the run-up to the assembly elec- tions in 2016, Jayalalithaa had allotted 260 furnished flats exclusively for the transgender community in northern Chennai. For the first time in our lives, this enabled several of our people to live together safely.” M ost of the transgenders India Legal spoke to said that more than the AIADMK govern- ment, it was the DMK government that had taken many positive steps for their welfare. “Apart from the creation of the Transgender Welfare Board in 2008, the decision to recognise us as a third gen- der was taken by the DMK government. It also introduced a pension scheme and issued identity cards to all those who registered their names with the Trans- gender Welfare Board. While it is true that the Jayalalithaa government allot- ted 260 houses to us, she could have done more. We are disappointed by the overall attitude of the AIADMK govern- ment,” said another transgender. In 2014, the Supreme Court granted third gender status to the transgender community. The Court also said the cen- tre and state governments should grant them the same benefits that the Most Backward Communities (MBC) enjoy. In Tamil Nadu, the transgender commu- nity is included in the MBC quota. Despite all these measures, an important development in the past seven to eight years forced a sizeable number of transgenders to return to the sex trade in Tamil Nadu. This was due to the stoppage of funds to several non- governmental organisations, both by the government and private players, who were working in prevention and awareness generation programmes on HIV/AIDS. A Subashree, who worked with an NGO, told India Legal: “From the mid- dle of the 1990s to 2011, there were many HIV/AIDS awareness program- mes in Tamil Nadu involving many NGOs. Though they received funds from both inside and outside India, the state government’s support was crucial. Hun- dreds of transgenders went around the state, working among sex workers and other vulnerable groups including truck drivers, and created awareness about HIV/AIDS. For this work, they were paid decently. But after the dwindling of funds to NGOs and the state govern- ment’s shrinking interest in the issue, the transgender community was sud- denly left in the lurch. As they don’t have any other talent or education, they went back to the age-old profession.” It’s not clear what stand the Tamil Nadu government is going to take on the present issue of reservation in gov- ernment jobs for transgenders. There was a move in 2013 when a petitioner approached the Madras High Court with the same prayer. At that time, the Tamil Nadu government told the High Court that reservation for them was not legally possible. Instead, it listed the welfare schemes initiated by the govern- ment for the welfare of transgenders. It remains to be seen whether in six years there has been a change of heart in the Tamil Nadu government. Twitter: @indialegalmedia Website: Contact: TamilNaduhasbeena frontrunnerinthewelfare oftransgenders.Boththe JJayalalithaa-led AIADMKandthe MKarunanidhi-ledDMK initiatedseveralwelfare schemesforthem. FIGHT FOR RECOGNITION Activists in Chennai protesting against the Transgenders Protection of Rights Bill; (right) two transgenders in a government hospital being honoured by CM K Palanisamy
  26. 26. Probe/ Uttar Pradesh/ Akhilesh Yadav 28 February 11, 2019 HAT does the Na- rendra Modi govern- ment do when it wants to rein in an inconvenient opposi- tion politician or party? It lets loose the Central Bureau of Investigation (CBI). They have done it again, it would seem, if the crackdown on some Samajwadi Party (SP) politi- cians, bureaucrats and other officials in cases related to the illegal sand mining in the state and financial anom- alies in the Gomti Riverfront project is any indication. The agency’s credibility would always be suspect as CBI DIG Gagandeep Gambhir, who was supervising the investigation into SP chief and former Chief Minister Akhilesh Yadav’s alleged role in illegal mining, was transferred in the changes effected by interim CBI Director M Nageswara Rao. The two CBI inquiries are in a way different. While it was the state govern- ment which first instituted a judicial inquiry into the riverfront case before bringing in the CBI, the probe into ille- gal mining was handed over to the cen- tral investigative agency by the Turning On The Heat Thoughthere’snothingtosuggestthattheformerCMisbeingpersonallytargeted,therecentCBIraids onSPpoliticiansandofficialsinmultiplecasespointtowardspre-pollmanoeuvrestopressurehim By Atul Chandra in Lucknow W
  27. 27. | INDIA LEGAL | February 11, 2019 29 Allahabad High Court. The High Court, in 2016, had asked the agency to look into all cases of illegal mining, submit a preliminary report on the involvement of officials and file FIRs wherever neces- sary. As such, the charge of political vendetta does not hold in the illegal mining case which started during Yadav’s tenure when there was an outcry against large-scale depletion of natural resources by a nexus of politicians, bureaucrats and contractors. The order for a CBI probe was passed by a division bench of the High Court comprising then Acting Chief Justice VK Shukla and Justice MC Tripathi on a bunch of PILs. The peti- tioners alleged that mining leases had been illegally extended in several cases and district magistrates were filing false affidavits claiming that there was no illegal mining activity in their areas. The petitioners also claimed that the illegal activities were going on with the con- nivance of officials who had the govern- ment’s patronage. T he High Court’s order pertained to the districts of Hamirpur, Deoria, Shamli, Siddharth Nagar and Fatehpur where illegal mining was alleged to be rampant. The principal secretary, mining, UP government, filed an affidavit in the case but the High Court was not satisfied with his reply. It said that the affidavit was filed “in a casual manner”. Subsequently, the CBI approached the High Court for clarity on the action it could take while probing the matter. This time, a division bench of the High Court comprising Chief Justice DB Bhosale and Justice Yashwant Varma said that the CBI “should not only probe the matter but expedite the legal pro- ceedings by filing FIRs”. The Court also asked the agency to focus on the above five districts even as the investigation order covered the entire state. The Yadav government opposed the High Court’s order for a CBI probe but its application was rejected. The state then went to the Supreme Court which allowed the CBI probe after initially staying the High Court order. In pursuance of the High Court or- der, the CBI on January 5 this year raid- ed several places in Lucknow, Kanpur and Jalaun. The raids were conducted at the residences of B Chandrakala, IAS, ThetwoCBIprobesareinawaydifferent. WhiletheUPgovernmentbroughttheCBI intotheGomtiriverfrontmatter,the probeintoillegalminingwashandedover totheCBIbytheAllahabadHighCourt. UNDER THE SCANNER (Above) UP CM Akhilesh Yadav laying the foundation stone of the Gomti Riverfront project (left) in 2015 in Lucknow Photos: UNI
  28. 28. 30 February 11, 2019 who served as the district magistrate of Hamirpur, Bijnor, Bulandshahr and Meerut, SP MLC Ramesh Kumar Mishra, and Sanjay Dixit of the BSP as well as eight others. The CBI had regis- tered five preliminary inquiries in the case in the last two years. On the basis of the CBI’s FIRs, the Enforcement Directorate (ED) too regis- tered cases of money laundering against the accused. An ED official said that the case had been registered to probe the money trail of those involved. Coming soon after the Samajwadi Party and the Bahujan Samaj Party announced their political alliance for the Lok Sabha elections, the raids were obviously perceived as the BJP govern- ment’s vendetta. Saying that he is ready to face the CBI, Yadav warned the BJP at a press conference: “Why is the CBI conducting raids? Whatever they want to ask, they can ask me. But the BJP should remember that the culture it is leaving behind, it may have to face it in the future.” Denying that it was acting as the BJP government’s handmaiden, the CBI was quoted as saying that Yadav held the mining portfolio for a year, from 2012 to 2013, and had cleared 14 leases. Of these, 13 leases were cleared by him on a single day—February 17, 2013—in viola- tion of the e-tendering policy cleared by the High Court in January the same year. Controversial IAS officer Chandra- kala, who was the district magistrate of Hamirpur during that period, granted the leases on February 17—the day these were cleared by the chief minister, the agency said. T he Gomti Riverfront project was in Yogi Adityanath’s crosshairs from the day he took charge as chief minister, and to that extent the action being taken is politically motivat- ed. The chief minister was upset that out of the total `1,500 crore earmarked for the project, `1,433 crore had been paid to the executing agency. For com- pleting only 60 percent of the work, the agency had spent `1,427 crore and had raised a demand for another `1,500 crore. Yogi ordered an inquiry into the pro- ject by retired High Court judge Alok Kumar Singh as head of a judicial com- mission. He was to be assisted by AK Garg, professor of finance at IIM-Luck- now, and UK Chaudhary, a former pro- fessor of riverine engineering at IIT-BHU. The commission submitted its report in 45 days, the period stipulated by the chief minister. Submitted in May 2017, the report was learnt to have indi- cted a couple of senior bureaucrats, some engineers and bureaucrats. Soon after receiving the judicial inquiry re- port, another high-level panel was con- stituted to study Justice Singh’s findings and fix responsibility so that charges could be framed. Subsequently, in June 2017, an FIR was registered against several engineers of the state irrigation department. The police said that “an FIR was filed by an executive engineer against eight engi- neers of the irrigation department for their alleged role in anomalies in the execution of Gomti Riverfront Project”. On the state’s request, the centre referred the matter to the CBI on Nov- ember 24, 2017. Those named in the CBI FIR included chief engineers Gulesh Chandra, SN Sharma, Qazim Ali and then superintendent engineers Mangal Yadav, Akhil Raman, Kamlesh- war Singh and Roop Singh Yadav. Of these, Gulesh Chandra, Mangal Yadav, Akhil Raman and Roop Singh Yadav have since retired. On January 24, the ED carried out searches in Lucknow, Noida, Delhi, Rajasthan and Haryana. The premises of the accused and their associates were raided for documentary evidence. So far, nothing suggests that Yadav is being personally targeted for the proj- ect. However, politics before the Lok Sabha polls may decide whether he feels the heat of CBI probes or is left alone. AnAllahabadHighCourtdivisionbench ofthenChiefJusticeDBBhosale(top) andJusticeYashwantVarmasaidthat theCBIshouldprobeillegalminingin fivedistrictsofUPandfileFIRs. Twitter: @indialegalmedia Website: Contact: Probe/ Uttar Pradesh/ Akhilesh Yadav POLITICAL VENDETTA? The probe initiated by UP CM Yogi Adityanath in the Gomti riverfront case seems motivated
  29. 29. Focus/ Chhattisgarh/ National Rural Health Mission 32 February 11, 2019 More than 200 people lost their lives or turned blind in the past five years during routine eye operations at a government facility in Chhattisgarh. There is such a severe shortage of doctors that when the new Congress gov- ernment wanted to punish and transfer Dr Puneet Gupta, a nephrologist and superintendent of DK Hospital, Raipur, it had to create a special post to keep him in the medical college, Raipur. There are 155 Community Health Centres and 790 Primary Health Centres in the state but they have a shortage of 1,047 doctors, 1,336 nursing staff, 207 laboratory technicians and 202 pharmacists. Not Keeping WellTheComptrollerandAuditorGeneral’sreportontheMission inthestatepaintsableakpictureonthehealthfrontduring the2012-17periodunderreview By Neeraj Mishra in Raipur Representative Image: UNI IN DIRE STRAITS A patient after surgery at a hospital in Chhattisgarh. Lack of doctors and nurses is hampering the NRHM in the state
  30. 30. | INDIA LEGAL | February 11, 2019 33 T is in this backdrop that the re- port by the Comptroller and Audi- tor General (CAG) on the National Rural Health Mission (NRHM) was recently presented in the assembly. The report said extremely bleak things about the state of healthcare in Chhattisgarh. There is an 89 percent shortage of specialists which means that there are only about a dozen specialists in the state health services. And despite the flourishing of new pri- vate nursing colleges and an attractive starting salary of `40,000 being offered by the government, there is a 34 percent shortage of nurses against the sanc- tioned strength. Due to these shortages, the Infant Mortality Rate (IMR) and Maternal Mortality Rate (MMR)—IMR: 39/1000, MMR: 173/1,00,000—were far short of the NRHM goals—IMR: 25/1000, MMR: 100/1,00,000). It is, therefore, no wonder that Chhattisgarh stands at 15th place regarding IMR and at 12th place regarding MMR in the country. And that is the case where doctors are not available. However, the scenario isn’t very different even when they are available. The awful shortage of drugs, miserable lab services and poor diagnos- tic back-up ensure that. The CAG, which sampled the district hospitals/Community Health Centres (CHC)/Primary Health Centres (PHC), where doctors were available, found that patients were still deprived of necessary treatments for various illnesses as well as diagnostic services due to shortages of medical equipment (25 percent to 69 percent), drugs and consumables (40 percent to 76 percent) and laboratory services (36 percent to 71 percent). Bland percentages, however, do not reveal the extent of damage that has been caused to the entire system. Niharika Barik Singh, who recently took over as the health secretary, confessed that the shortage of doctors is the department’s biggest headache: “We can still get medicines, equipment and sup- port staff, but where do you get the doc- tors to serve in the rural areas? It is a universal problem across India that doc- tors do not want to serve in the villages anymore.” State Health Minister TS Singhdeo has been quoted as saying that the government cannot match the sala- ries being offered in the private sector and, therefore, there seems no end to the specialist crisis. The benefits of NRHM have also not been scooped up in other areas. The infrastructure for the CHCs should have been completed by now, but as many as 54 out of the 223 CHCs planned across the state have not even been completed as yet. Similarly, 99 out of 884 PHCs have not been completed despite the work order being issued long back. “In some cases, we have been handi- capped by non-participation of bidders, in remote areas of Bastar and Sarguja,” says Singh. But she still has to find out how `14 crore of public money was spent on these projects by the previous Raman Singh government with no com- pletion in sight. The health department has managed to establish a bulk of CHCs as First Referral Units (FRUs) as promised under NRHM. The state government had set the target at 46 FRUs, but it has only been able to get 28 on the ground. A major failure has been the Chhatt- isgarh Medical Services Corporation. It was established on the lines of similar sourcing corporations like Laghu Udyog Nigam and Beverages Corporation to act as the one-point sourcing unit for all drugs and equipment. However, it failed to supply drugs and equipment I TheCAGreport, whilelookinginto Chhattisgarh’s performanceonthe NRHM,hasdamnedthe previousRamanSingh governmentforthe poorheathcaresystem inthestate. Accordingtothestatehealthsecretary, NiharikaBarikSingh,medicines, equipmentandsupportstaffcanbe arranged,buttherealproblemliesin gettingdoctorstoserveinruralareas. UNI
  31. 31. Focus/ Chhattisgarh/ National Rural Health Mission 34 February 11, 2019 despite receiving indents from the department, on the grounds of non- availability of rate contract for medi- cines, non-receipt of tenders, and late receipt of annual demands from the Directorate of Health Services. Compare the CAG report, which has damned the government under the pre- vious chief minister, Raman Singh, with its overall perception of the NRHM and its sub-programme on Reproductive and Child Health (RCH). It estimates that financial mismanagement is rampant across India. The report highlights sub- stantial unspent balances with the State Health Societies every year. In 27 states, the unspent amount increased from `7,375 crore in 2011-12 to `9,509 crore in 2015-16. Delays were also noted in the transfer of funds from state treasur- ies to State Health Societies, ranging from 50 to 271 days. Similar problems of incomplete physical infrastructure, non-availability of human resources, medical equipment and medicines, and abysmal quality of healthcare and post- natal care abound all around. I n the years under scrutiny of the CAG—2012-17—the state has spent an average of `3,000 crore on its health budget. The last budget present- ed by Raman Singh had allocated about `3,600 crore for health services. He had also allocated another `980 crore for NRHM for building 25 new CHCs which have yet to see the light of day. The unspent money each year app- ears to have been diverted into fancier schemes like Mukhyamantri Swasthya Bima Yojana (MSBY) which was a pre- cursor to Modicare. Under MSBY, BPL patients would get a free card entitling them to an expenditure of up to `50,000, up from `30,000 previously. But soon it turned into a scam with pri- vate hospitals overcharging patients and treating them only if they had a card. In most cases, the hospitals charged them on the card as well as in cash. Even- tually, it ended with the state’s inability to pay card bills with private hospitals going on strike and dishonouring the MSBY card. The new set-up under Singhdeo will have to look into not only the misman- agement of NRHM funds but of the entire health department funds. It will probably begin with DK Hospital where Dr Puneet Gupta was the superintendent. He has been accused of having swindled crores of rupees in reconstruction and re-equip- ping. But, as Barik Singh says: “It’s not an easy department to handle for any government, and every day, crises rang- ing from malaria to diarrhoea usually saps the state’s energies.” We will have to wait and see if the Congress government fares any better in implementing the NRHM. Twitter: @indialegalmedia Website: Contact: T he Congress-led Chhattisgarh government will now look into var- ious scandals associated with for- mer Chief Minister Raman Singh. Des- pite his “clean image”, he will now have a lot to answer for. One of the first things the Congress government did was to appoint contro- versial former Bastar IGP SRP Kalluri (right) as head of the Economic Off- ences Wing (EOW) and Anti-Corruption Bureau in Raipur. He has been given express instruc- tions to follow these cases on a priority basis. Kalluri is well-known for his speed and unusual methods of investigation, which often border on the illegal. In the multi-crore PDS scam, also referred to as the NAN scam, unearthed in March 2015, a 5,000- page charge sheet was filed by the EOW. The scam cast a cloud over the PDS scheme which provides `1 per kilogramme rice to poor families. The CAG found that the government was supplying low-quality rice, gram and iodised salt to poor households. Two IAS officers have already been sus- pended following investigations. Now the cabinet has decided to reopen the case and has redefined some crucial terms which might create further problems for Raman Singh. The Antagarh tape case has also been given to the EOW. In 2014, the Congress candi- date for the Antagarh by poll, Manturam Pawar, had withdrawn his candidature at the last moment. The BJP won the seat. It was widely believed that Ajit Jogi had struck a deal with Raman Singh to do this. A Special Investigation Team recently interrogated Pawar. Dr Puneet Gupta, who is Raman Singh's son-in-law, is being implicated in another hospital construction and supply scam. He has been transferred out of the premier DK hospital. Taintedbyscams?