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India Legal 15 August 2016


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SC strikes a BALANCE: In a hard hitting judgment, the apex court rules that AFSPA cannot be permanently imposed
By Ramesh Menon

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India Legal 15 August 2016

  1. 1. NDIA EGALL August 15, 2016 `100 I STORIES THAT COUNT 12 ILRFConclave: EnsuringAccessToJusticeForAll BySuchetaDasGupta andSandeepSharma Ajith Pillai Cricket cleanup: Will other sports follow? 34 Nayantara Roy Amend archaic abortion law 30 Dinesh C Sharma Goodbye to Delhi’s ageing diesel cars 60 Kalyani Shankar Should the governor’s post be abolished? 48 SCstrikesa BALANCE Inahardhittingjudgment, theapexcourtrulesthat AFSPAcannotbe permanentlyimposed ByRameshMenon20 Irom Sharmila Droupadi Murmu, Governor of Jharkhand Virender Singh, Chief Justice, High Court of Jharkhand
  2. 2. AUGUST15,2016 A Memorable Day On July 23, 2016, India Legal embarked on a journey to promote grassroots involvement in making the fruits of justice available to all. INDERJIT BADHWAR Shadow of the Gun Since it was passed in 1958, the Armed Forces Special Powers Act has been widely misused resulting in countless killings and rapes in the North East. A recent Supreme Court order questions the controversial law and brings hope. RAMESH MENON 20 LEAD 7 A Judge’s Diary Pro-active action by Virender Singh, Chief Justice of the Jharkhand High Court, has shown justice has a humane side. RAMESH MENON 18 Archaic Act A recent apex court judgment allowing a rape victim to terminate her 24-week pregnancy reflects the need to amend the abortion law in the light of scientific advances and new social realities. NAYANTARA ROY 30 12 VOLUME. IX ISSUE. 23 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. For advertising & subscription queries CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Circulation Manager RS Tiwari PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAmarUjalaPublicationsLtd.,C-21&22,Sector-59,Noida.Allrights reserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Editor Inderjit Badhwar Managing Editor Ramesh Menon Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Bureau Chiefs Neeta Kolhatkar, Mumbai Vipin Kumar Chaubey, Lucknow BN Tamta, Dehradun Principal Correspondent Harendra Chowdhary, Mathura Reporters Alok Singh, Allahabad Gaurav Sharma, Varanasi Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writer Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Sr Visualizer Rajender Kumar Graphic Designer Ram Lagan Photographer Anil Shakya Photo Researcher/News Coordinator Kh Manglembi Devi Production Pawan Kumar Convergence Manager Mohul Ghosh Senior Content Writer (Web) Punit Mishra Technical Executive (Social Media) Sonu Kumar Sharma Technical Executive Anubhav Tyagi Justice for All The first-ever conclave of the India Legal Research Foundation in Ranchi examined the reasons why access to justice still eludes the poor and powerless. SUCHETA DASGUPTA and SANDEEP SHARMA INDIA LEGAL CONCLAVE SUPREME COURT 4 August 15, 2016
  3. 3. REGULARS Response .................................................................... 6 Quote-Unquote ......................................................... 11 National Briefs........................................................... 29 Supreme Court.......................................................... 39 Is that Legal............................................................... 74 International Briefs .................................................... 75 Figure It Out .............................................................. 80 Wordly Wise .............................................................. 81 China’s belligerent reaction to the recent UN court verdict that it has no territorial claims in the South China Sea reveals its larger design to dominate the region. BHASKAR ROY Angry Dragon 68 48 There is a debate in legal and political circles on whether the post should be abolished after the controversial events in Uttarakhand and Arunachal Pradesh. KALYANI SHANKAR Do We Need Governors? The National Green Tribunal’s order to scrap diesel vehicles in Delhi which are more than 15 years old will help the capital breathe easy. DINESH C SHARMA End of the Road 60 76 ENVIRONMENT In three weeks of political churning, Theresa May has emerged as unelected prime minister of Britain. But the road ahead is a daunting one as the country prepares to exit EU. SAJEDA MOMIN The Brexit PM Cover Illustration and Design: ANTHONY LAWRENCE LEGAL EYE 64The murder of social media star Qandeel Baloch highlights the sexism and feudal mindset in Pakistani society which has no law to to punish such “honor killings”. FIROZ BAKHT AHMED Dishonorable Deed MY SPACE DIPLOMACY GLOBAL TRENDS The top court accepting the Lodha panel reforms could impact beyond cricket. Lawmakers will now find it easier to debar politicians from holding office in other sport federations as well. AJITH PILLAI 34Sports the Winner In July, four members of the Karnataka police force committed suicide unable to cope with the pressures of duty: an alarming trend. IMRAN QURESHI 56 Suicidal Stress SOCIETY In a landmark judgment, the Madras High Court dismissed a ban on Perumal Murugan’s 2010 novel Madhorubhagan thus upholding the author’s right to practice his craft. R RAMASUBRAMANIAN 42Writer’s “Resurrection” COURTS 53 The Chief Justice of India had to step in after a confrontation between the press and the legal fraternity took an ugly turn bringing courts in Kerala to a standstill. NAVEEN NAIR Unbecoming Conduct STATES The actor was acquitted in two poaching cases by the Rajasthan High Court. NAYANTARA ROY 41Salman Gets a Breather 5INDIA LEGAL August 15, 2016
  4. 4. 6 August 15, 2016 Can triple talaq be overturned? This is with reference to the story, “No, No, No!” by Ramesh Menon (July 15, 2016 issue) that dealt with the triple talaq. A uniform civil code should solve this and other problems once and for all. But I don’t see our governments, including the present one display- ing the guts to implement it. Sudhir Narasimhan on Facebook RESPONSE Thanks to Inderjit Badhwar for providing in one article all the complexities involved in resolving the Kashmir issue (“Another Gory Chapter on Kashmir”, July 31, 2016). It is rich in detail, convincing in arguments, and above all, compassionate to all the stakeholders. Pro- bably, only he could have written with such a world view. But whether we like it or not, Kashmir has now got mixed up with territorial loyalties, religious and national identity and cultural identity of diverse peoples living in India and Pakistan. So, it is as much an issue of Pakistan as India, though we may not accept it officially. A peaceful solution involves the ability of the leader- ship from both countries to evolve a mutually accept- able solution; but the more difficult job for them is to sell the mutually-agreed solution to their people. It does not look within the realm of possibility consid- ering over 43,000 people have died in Jammu and Kashmir alone from 1988 to 2016. This includes not only the people of the state but from other parts of India and Pakistan as well. With honor killing tradition deeply rooted in the psy- che of the sub-continent, I doubt whether the issue will ever be resolved to the satisfaction of all the people from both sides. That’s why an out-of-the-box solution involving a new design of a quasi-nation will have to be evolved. It is alright to suggest this from my armchair. How many will buy an ideal solution when personal stakes of the peo- ple are so high? So I am waiting for my grand-daughter's generation in both countries to be a little more wiser, less emotional and more universal in their outlook to evolve a solution. Col R Hariharan, who was head of intelligence, IPKF, now advises the NSA and RAW Kashmir deconstructed
  5. 5. TAKING LAW TO THE PEOPLE INDERJIT BADHWAR on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists . . . it is fundamental that justice should be the same, in substance and availability, without regard to economic status,” said Justice Lewis F Powell, Jr, US Supreme Court in 1976. “Courts exist for the convenience of the liti- gants and not in order to maintain any particular system of law or any particular system of adminis- tration,” noted Justice MC Chagla, former Chief Justice of Bombay High Court. T heir wisdom, and those of countless lumi- naries who have fought and argued pas- sionately for the majesty of the Rule of Law, guides the editorial spirit of India Legal magazine and the conclave on “Access to Justice” organized by the ILRF. India Legal magazine is now completing more than two years of publication as a revamped and relaunched fortnightly magazine. And there is plenty to commemorate and rejoice about. At a time when the market wisdom was against launching new magazines and periodicals because of “commercial viability” problems, our well wish- ers Rajshri and Pradeep Rai—both journalists and lawyers—took a leap of faith. And their belief—as the growth and progress of the magazine has demonstrated—has been rewarded by success. Our job was not to pander to fashionable mar- ket trends or infotainment but to persuade readers back into serious reading rather than just flipping through. I believe that one measure of our success lies in how quickly we began to attract some of the LETTER FROM THE EDITOR ULY 23, 2016 was a proud day for the India Legal family. The magazine was part of the launch of a unique public service initiative which brought a governor, the chief justice of a high court, sitting judges of the high and lower judiciary, journalists, top lawyers, senior bureaucrats, and law students under one roof. The occasion—starting from Ranchi, the capi- tal of Jharkhand—was the first conclave sponsored by the India Legal Research Foundation (ILRF), partnered by India Legal magazine and APN News. Subject: “Access to Justice.” This will be a year-long theme for similar conclaves ILRF is planning for all major cities across India. The objective of the year-long exercise is to promote grassroots involvement in making available the fruits of justice to all those who are given this basic right within our democracy but often cannot even pick the low-hanging fruit. When I joined India Legal as its editor, little had I imagined that one day I would be add-ress- ing the legal community directly as I did at the conclave rather than through my laborious pen. When I returned from the US many years ago as Editor of India Today, a friend who had just attended a court hearing seemed very depressed. He shook his head and said, “date mil gayee.” (“I’ve got a date”) I was puzzled. In the West “date” means getting to meet and court a young lady who might become your lifetime partner. Of course, as I learned in India, this means your case has been postponed to some other indefinite date. I also learned that these delays in the judicial process were a sad flaw in our system of justice. “Equal justice under law is not merely a caption J 7INDIA LEGAL July 15, 2016
  6. 6. telling of all breaking stories and investigations within the perspective of their legal parameters. It’s to the credit of the unspoken wisdom of our Constitution that we are a nation of laws and not man-made whimsies. Take any major political, social or economic issue facing the nation or the world, research and write on it within the legal framework and you’ve got an India Legal story! A word about Pradeep Rai, the President of ILRF which drew inspiration from the magazine. Pradeep Rai is a many-faceted individual who has been able to link the legal pro- fession with activism and human rights. Sensing a vacuum in this area—the lack of adequately trained reporters and editors capable of transmit- ting and explaining the experience of law as it impacts the human condition, society and gover- nance—he ventured to create a platform that amalgamates the two streams. This combination of law and journalism—he has a passion for both—led Pradeep to explore new depths and avenues over the last decade until he could build a bridge which would help him strad- dle both professions. The organization was actua- lly started by his journalist wife Rajshri, an IIMC graduate and NDTV anchor, some family mem- bers and interns—with his pet magazine ventures, Views on News, and India Legal. Pradeep kept a strong distance from editorial decision-making or interference though he was always available for advice on complex issues and helping reporters gain access to reliable sources. They were able to project the two magazines on a national footing only in early 2014 when the senior management hired a professionally-driven editorial staff with editors of national and international standing capable of guiding a team and drawing in some of the best known writers as contributors on a regular basis. Editorial independence and ability to scoop stories missed by the general media has been the hallmark of our publications. India Legal and Views on News—which we are now developing into a daily website—between them provide wide coverage of the judiciary, the law, developments and trends in the media as well as governance and inside reports on the bureaucracy. I will take the liberty to reproduce Pradeep’s Rai’s address to the gathering from the dais which included Governor Droupadi Murmu and Chief finest writers, reporters and editors in the coun- try—many of them legendary in their own life- times—to write for us. Our very first issue with the cover story “How Did She Die” raised serious questions about Sunanda Pushkar’s death along with the first exclusive photographs of her dead body showing bruise marks. The story later went viral and her death is still under investigation. During the first event-packed, frenetic six weeks during which our fortnightly magazine was on the stands, the one question I was repeatedly asked is why we call it “India Legal”. Not that people didn’t like the title. They found it authorita- tive, catchy and different. But they remain mysti- fied by our choice when they read the contents and discover that the magazine is not simply a hand- book or digest for the legal profession. Precisely. And yet, members of the legal com- munity who read it find it fits their niche reading needs. I write this not to wallow in self-praise but rather to suggest that India Legal was probably the right choice of a name. It is obvious that the mag- azine has mined a rich vein of readers’ interest. It has placed a niche perspective of the law within the wider ambit of a general readership. It has become a marketplace for the discussion and A BRAVE NEW INITIATIVE Pradeep Rai, president, India Legal Research Foundation, addressing the conclave on “Access to Justice” in Ranchi LETTER FROM THE EDITOR 8 August 15, 2016
  7. 7. limits of our vocation. We enjoy reaching for the stars! And it is in the course of this journey that ILRF or India Legal Research Foundation has taken birth. “Many of you, I am sure, are aware that India Legal is the country’s only news conglomerate which serves as a unique platform focusing on a comprehensive and sweeping range of news, views, opinion and breaking stories from all courts, the legal and judicial community through a network of magazines, TV channels, websites, and partner- ships with prestigious colleges, their professors and students, like the National Law University, Delhi, NALSAR, and Jindal Global Law School. “Some of the leading lights of the judicial com- munity have used our platforms to directly address the concerns of the judiciary. The participants have included former Chief Justices, Union Minis- ters for Law and Justice, and top Senior Advocates. My Honoured Guests and Colleagues, and Friends, I would now like to share a secret with you which has just been revealed to me by the top editorial team of the India Legal-APN family. APN News has recently launched the India Legal Helpline. It is a live call-in show in which ordinary people in need of proper guidance call our team of expert lawyers present in the NOIDA studio. I am told, it’s becoming one of the top TV shows. In this endeavor we are being supported by our electronic media partner, APN News. The confidential Justice Virender Singh, (whose speeches appear in an accompanying story in this issue): “Y our Excellency Governor Murmu; Your Honour Chief Justice Virender Singh; Your Lordships of the High Court of Jharkhand; Ladies and Gentlemen, I do not know how to express my joy and feeling of elation that such a distinguished congregation has gathered here today to pay respect to one of the greatest gifts of freedom and liberty endowed to us by our Founding Fathers—the Access to Justice. “These may be simple sounding words. But their beauty and spirit lies in their very simplicity. Access is another word for the “right to entry,” or the “right to use.” Justice means fairness, impar- tiality, righteousness, even-handedness, fair deal- ing, honesty, integrity. I could go on and on. It is not for me to preach to this distinguished gather- ing, which day in and day out faces the formidable challenge of implementing this “right.” But simply to emphasize that it is from this juridical principle of natural justice that human beings can derive the moral ammunition to strive for what each individ- ual craves day by day: A Life of Dignity. “If I may be allowed to inject a personal note in this small welcoming note to all of you, I would like to state that the pursuit of these core values propelled me into the profession to which I am wedded. But most of us have a desire to go beyond LEGAL NEWS ABOUNDS A bouquet of news offerings from India Legal-APN family INDIA LEGAL August 15, 2016 9
  8. 8. based prejudices and incidences of farmers’ suicides are issues that have remained as blots on our democracy. “The framers of our Constitution were fully aware of the fact that justice is the greatest interest of man.... In their arduous quest for justice during National Freedom Struggle they felt the prime impor- tance of framing a Constitution for a free nation where justice for its citizen becomes easily accessible. “The notion of ‘access to justice’ in our Constitution is placed on the high pedestal of fundamental rights. Access to justice is an inbuilt content of Article 14 which guarantees equality before the law and equal pro- tection of laws. If, in accessing justice, the common man has to encounter barriers and impediments, the equality clause in our Constitution becomes no more than a promissory note! A Paper Tiger! “So, in a judiciary where access is gagged and the institutions which are responsible do nothing to remove the obstacles, such a system ceases to be an independent judicial system. As early as in 1956, the Apex Court, while interpreting Article 14, decided that our Constitution is not meant only for the elite, but it is also for ‘the butcher, the baker and the candlestick maker’. In subsequent years the Apex Court incorporated access to justice in Article 21 by various judicial interpretations. Articles 22(1) and 22(2) specifically ensure the ‘access to justice’ for persons who are arrested and detained in custody.... “Under our constitutional dispensation, sover- eignty vests in the people. So, we the people of India can legistimately boast of a people-oriented jurisprudence with unimpeded access to justice. However, there is much more to be done in this regard and ILRF has taken the initiative and em- barked upon this arduous journey and an onerous task with clear vision of realizing the first Mission of Mahatma ‘to wipe every tear from every eye’.” news that the editorial team has allowed me to share with you is that they are now expanding into the realm of the English medium, by launching a new channel, India Legal Live. “Today’s theme is very much a part of India Le- gal Research Foundation’s attempt of providing free and high quality legal services to those unable to afford legal help. This conclave is very much a part of that overall design by spreading the word and sensitizing all concerned through debate and interaction. It is also a celebration of the best of the past history of Ranchi, a part of our nation from where some of the wisest teachings spread across the world. “T his is a collective effort of TAKING THE LAW TO THE PEOPLE through the judiciary, the press and the legal fraternity. I do believe that in promoting social and constitutional causes, the “trickle down” theory can really work. Legal literacy, just as literacy about health and environment, is essential in strengthening civilized existence. And what better way for awareness to spread than “trickling down” into the mind space through the media and media- related events such as this pre-sent one? “But, unfortunately, we have not been success- ful in ensuring that the fruits of development reached the lower-most strata of society. Poverty, illiteracy, high rates of infant and maternal mortal- ity, adverse gender ratio, unemployment, poor health-care system, caste, gender and religion- STRUGGLE FOR JUSTICE Litigants at Tis Hazari Court in New Delhi LETTER FROM THE EDITOR 10 August 15, 2016
  9. 9. “It is excruciatingly sunny outside. When we step in…we shut our eyes in the cool here so that they get some moisture. Aur aap bolte ho woh sote hain (And you say he sleeps)!” —Congress leader Renuka Chowdhury defending Rahul Gandhi after he was shown napping in the Lok Sabha during the parliament session “IS has given a wrong meaning to Islam. If someone killed Muslims in Gujarat that doesn’t justify killing innocent Hindus in Mumbai.” —Zakir Naik, condemning the Islamic State as “an anti-Islam state”, in The Times of India “Dalits across the country not only treat me as a leader but as a Devi (goddess).” —BSP chief Mayawati, justifying the Dalit backlash in the wake of the derogatory comment on her by BJP functionary Dayashankar Singh, on Firstpost “The aim is to rapidly and effectively take all steps needed to eliminate the threat against democracy, the rule of law and the people’s rights and freedoms.” — Turkey’s President Recep Tayyip Erdogan, after declaring a three-month state of emergency in the country, in The New York Times “They (the Indian authorities) have had access to many executives of Kingfisher Airlines, and they have had access to thousands of documents. If the missing link is only to interview me, come to London and interview me, get on the radio conference and interview me, send me an email with questions and I will reply. I have nothing to hide.” —Vijay Mallya, accusing the Indian government of conducting a witchhunt against him, in Autosport magazine QUOTE-UNQUOTE “I have no prime ministerial ambition. I am fine in my own state. But I am for stronger regional parties. Stronger states make a stronger center. This is true federalism. But what are they (Modi government) doing? —West Bengal CM Mamata Banerjee criticizing the Modi government, in The Times of India “We have ignored the grand bargain under which Kashmir acceded to India. I think we broke faith, we broke promises and therefore we have paid a heavy price.” —Congress leader and former Home Minister P Chidambaram on why Kashmir is burning, to India Today TV 11INDIA LEGAL August 15, 2016
  10. 10. “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” —Justice Hugo Black, US Supreme Court in 1964 INDIA LEGAL CONCLAVE/ Jharkhand The first-ever conclave of the India Legal Research Foundation held in Ranchi took a long hard look at the reason why access to justice still eludes the poor and powerless. Addressing this vexed question is the mission of the India Legal magazine which will raise this issue in all major cities in India and involve judges, lawyers, bureaucrats, law students and others in finding a solution By Sucheta Dasgupta and Sandeep Sharma in Ranchi Reaching Out, T HE first ever conclave of India Legal on Access to Justice held in Ranchi this fortnight was a re- sounding success as it was attend- ed by Droupadi Murmu, the Governor of Jharkhand, Justice Virender Singh, the Chief Justice of the High Court of Jharkhand, Justice Anant Bijay Singh, Justice Apresh Singh, Justice Harish 12 August 15, 2016
  11. 11. CONCERN FOR THE COMMON MAN (L-R) Chief Justice of the High Court of Jharkhand Justice Virender Singh, Governor of Jharkhand Droupadi Murmu, and Editor-in-Chief of India Legal Inderjit Badhwar addressing the “Access to Justice” conclave (Facing page) Distinguished speakers on the dais Reaching All Chandra Mishra, Pravin H Parekh, former president of the Supreme Court Bar Association and other luminaries, including bureaucrats and lawyers. The conclave dis- cussed how justice to all was a must as it was a fundamental right but was not reaching many of those who needed it most. There are various causes for unequal jus- tice. These include lack of infrastructure, shortage of judges, rising pendency, adminis- trative lapses like shoddy police investiga- tion, presence of a criminal-politician nexus, undertrial prisoners not being able to secure bail even after many years in jail and so on. Droupadi Murmu, Jharkhand’s first woman governor, said that access to justice as a human rights concept based on dharma was familiar in ancient India. The state in ancient India was neither sacerdotal, nor paternalistic. The concept of dharma was multi-dimensional. It was embraced and sus- tained in a compassionate sweep. It gave birth to both human rights and laws to safe- guard them, she said. Stressing on the link between poverty and lack of knowledge of law, she said law educa- tion should become part of our curriculum so that justice becomes accessible to all. She congratulated the India Legal Research Foundation (ILRF) for its bold initiative to make justice accessible to all (see box). CREATIVE ALTERNATIVES Making use of the alternate dispute resolu- tion mechanism is one such way to provide access to justice. Justice Virender Singh noted the importance of this method of case disposal in jurisprudence and underscored how it would go a long way in reducing the already-humongous caseload on Indian jud- ges and make way for speedy justice. Enactment of the Legal Services Authorities Act on the strength of Article 39A of the Constitution of India paved the path for 13INDIA LEGAL August 15, 2016
  12. 12. establishment of legal services authorities across the country with this objective in sight, he said. “It is a matter of great satisfaction for us that the Jharkhand Legal Services Authority (JHALSA) and the District Legal Services Authorities are playing a tremendous role towards giving the citizens access to justice. Apart from enhancing legal literacy among common people, conflicts are being resolved through the Alternate Dispute Resolution (ADR) mechanism in large numbers. At present, the success rate of mediation in Jharkhand is 49 percent,” Singh said. JHALSA and DLSAs are also playing an important role in extending a helping hand to victims of crime, he noted. After an amendment was brought in Section 357A CrPC, victim compensation schemes were formulated by state governments. Till June “Jailsarefullof poorpeople” Administration of justice was one of the paramount functions of the state, Droupadi Murmu, Governor of Jharkhand said, adding that it was the duty of the state to promote justice on the basis of equal opportunity and pro- vide legal aid to all citizens of the coun- try. “The Supreme Court has empha- sized, while interpreting Article 21 in the light of Article 39A, that legal assis- tance to the accused who is arrested with jeopardy of his life or personal lib- erty, is a constitutional imperative man- date not only by Article 39A but also by Articles 14 and 21. In the absence of legal assistance, injustice may result and every act of injustice corrodes the foundations of democracy,” she said. She said: “Gaon ke log teen jagah jane se hichkichate hain—thana, doc- tor khana aur court. Sochte hai jo bacha khucha hai, who bhi chala jayega.” (People in villages are scared of visiting three places-police station, doctor’s clinic and court. They are apprehensive that they would lose whatever they have.) “I am aware of these facts as I also come from the poorest among the poor families,” she said. Murmu said that when she visited jails, she always found that it was full of poor people who had no knowledge of the law. It is therefore important that law education should be included in the academic curriculum to make justice accessible to all, she stressed. She praised the effort of the India Legal Research Foundation (ILRF) to address this need. “Considering all those important aspects and the chal- lenges ahead, I express my best wish- es to ILRF. I also commend them for taking up a bold initiative which would go a long way in realizing the cherished goals enshrined in our Constitution.” IN STEP WITH TIMES Jharkhand Armed Police (JAP) Band playing the National Anthem INDIA LEGAL CONCLAVE/ Jharkhand 14 August 15, 2016
  13. 13. LEGAL EAGLES (Clockwise from above, left) Jharkhand Governor Droupadi Murmu lights the ceremonial lamp as Former President of Supreme Court Bar Association Pravin Parekh, Justice Virender Singh and ENC Ltd MD Rajshri Rai look on Rajshri Rai hands a plaque to Registrar General of the High Court of Jharkhand Anil Kumar Choudhary Inderjit Badhwar, National Law School-Delhi Registrar Prof GS Bajpai, Jharkhand HC judge Justice Anant Bijay Singh, Pravin Parekh and senior advocate with Jharkhand HC Mani Mala Pal, at an interactive session this year, a sum of `81,061,000 was dis- bursed to victims under the Jharkhand Welfare Scheme 2012 and `13 lakh given out under Victim Welfare Fund Rules 2014 as interim compensation to victims, he said. “Awareness of ADR, coupled with the contributions of the legal services authorities and organizations such as the ILRF, are effective means for combating the menace of huge numbers of pending cases and increas- ing litigation. I feel that adhering to them will help us reach the ultimate goal of access to justice for all,” Singh stated. Justice Singh said it was noteworthy that India Legal was holding up the legal issues of the day before society. “Its excellent analysis of our legal system to strengthen our democ- racy adds remarkable value to it. I can say that India Legal has been nicely performing its role as the fourth pillar of democracy.” He said he agreed with all the issues that India Legal had raised on concerns like pendency and the reach of justice to all. WHAT AILS THE SYSTEM Justice Anant Bijay Singh led an interactive session with lawyers, NGO representatives, media-persons and law students. Questions were asked regarding the ambit of the Right to Information Act, delay in court hearings, predominance of the English language in the conduct of hearings which was a handicap for the poorest of poor as well as other perti- nent topics relating to access to justice. A panel of experts comprising the judge him- self, as well as National Law University Registrar Prof GS Bajpai, senior advocate with the Supreme Court Pravin Parekh, and senior advocate Mani Mala Pal, took part. Parekh said the Constitution had ensured justice and fundamental rights for all, which was interpreted by our courts in a purposive way. “It is important that the lowest of the low in the country get justice at a reasonable cost. Unfortunately, many clients have to shell out lakhs of rupees today to get justice,” Parekh said. Senior advocate Pradeep Rai said that the mission of the newly-formed ILRF was to wipe every tear from every eye. He said that as early as in 1956 the apex court, while inter- preting Article 14, decided that our Cons- titution is not meant only for the elite, but is also for “the butcher, the baker and the can- dlestick maker”. “In subsequent years, it incorporated access to justice in Article 21 by various judicial interpretations. Articles 22(1) and 22(2) specifically ensure access to justice for persons who are arrested and 15INDIA LEGAL August 15, 2016
  14. 14. IL detained in custody.... A judiciary where access is gagged and the institutions which are responsible do nothing to remove the obstacles ceases to be an independent sys- tem,” he said. Vimal Kirti Singh, former principal secre- tary, energy, Jharkhand, pointed out that authorities should be alert enough to protect the rights of citizens so that they do not have to go to court to secure them. He also advised automation and digitization wherever possi- ble to promote efficient governance. “Karna- taka has made sure that the number of prop- erty disputes there goes down. It has comput- erized records, making it easy for people to access them and confirm which piece of land belongs to whom.... In comparison, the peo- ple of Jharkhand still take ages to figure out the same thing,” he said. INDIA LEGAL’S JOURNEY India Legal editor-in-chief Inderjit Badhwar said that soon after launching India Legal it attracted some of the finest writers, reporters and editors in the country, many of whom were legends in their own lifetime. A short film by APN TV was shown at the conclave, highlighting the infrastructural problems currently plaguing our judiciary. The film brought home the point that jus- tice delayed is justice denied. At present, there is only one judge for 73,000 people or, 17 judges for 10 lakh people. Transpose this with the Law Commission recommendation saying there should be 50 judges per 10 lakh people. Pendency of cases is a serious issue. Till June this year, about 60,000 cases were pending in the Supreme Court. In the high courts, the figure has crossed a staggering 42 lakh and in the lower courts it is nearly 2.65 crore! There are only 16,438 judges currently operating in the lower courts. In the 24 high courts of the country, there are 621 judges against a sanctioned figure of 1,079 judges. In the Supreme Court there are 29 judges while the sanctioned strength is 31. There are about 80,000 cases pending in the Jharkhand High Court of which more than a half have been pending for over a year. But there is a silver lining. In the year 2015, the Supreme Court cleared over 47,000 cases. In 2013, it was 40,000 cases in which the judges reached a verdict and in 2014, the judges dispensed with 45,000 cases. Clearly, we have a long way to go to ensure that jus- tice reaches the litigant faster, but a begin- ning has been made. MOMENTS TO CHERISH (Clockwise from top) NLU Registrar Prof Bajpai felicitating Pravin Parekh APN correspondent Prabhat Singh felicitating ILRF President Pradeep Rai Registrar (Establishment) of the Jharkhand HC SK Singh, Registrar General Anil Kumar Choudhary, and Justices Harish Chandra Mishra, Anant Bijay Singh and Aparesh Singh of the Jharkhand HC sing the National Anthem INDIA LEGAL CONCLAVE/ Jharkhand 16 August 15, 2016
  15. 15. INDIA LEGAL CONCLAVE/ Judge’s Initiative Pro-active action by Virender Singh, Chief Justice of the Jharkhand High Court, has helped reach justice to those who never dreamt they would get it By Ramesh Menon Humane Faceof Justice W HEN his nine-year-old daughter staggered home severely injured and bleed- ing, her father, a poor laborer, was overwhelmed with shock at what she told him. She had been raped by a driver who abducted her and assaulted her by the banks of a nearby river. The distraught father registered a case with the police in August 2015. He also took his daughter to a local hospital near Hathipada village in East Singhbhum district of Jharkhand. But doctors were unable to stop her bleeding and she was rushed to Jamshedpur. There too doctors battled to save her and finding that her intestines were severely damaged rushed her to Ranchi. There she underwent a colostomy to remove the damaged intestine and attach a colosto- my bag. 18 August 15, 2016 Illustration: Anthony Lawrence
  16. 16. IL Justice Virender Singh (left) read about the plight of the father and girl in the Hindustan Times, Ranchi, and admitted the news item as a public interest litigation. He ordered the state administra- tion to pay an interim compensa- tion of `1 lakh on the same day before sundown to the father of the victim. He also directed that the best medical care and protection were provided to the victim. After she was discharged, her father had to take her for her daily dressing to a doctor four kilometers from home. As he lived in a Maoist infested area, there was no public transport plying and he had to physically carry her as he did not even own a cycle. His meager savings had depleted by then and he was finding it difficult to treat her. He was forced to sell his livestock. Sometimes, a simple pro-active and posi- tive action from the judiciary can work a mir- acle. When Virender Singh, Chief Justice of the High Court of Jharkhand, read about the plight of the father and girl in the Hindustan Times, Ranchi, he admitted the news item as a public interest litigation taking suo motu cognizance on August 29 though it was a non-working day. He ordered the state administration to pay an interim compensa- tion of `1 lakh on the same day before sun- down to the father of the victim. He also directed that the Jharkhand State Legal Services Authority ensure that the best med- ical assistance, care and protection were pro- vided to the victim. As the court had ordered action, the dis- trict administration provided a job card to the father under MNREGA, a bicycle, a blan- ket, clothes and financial assistance for the construction of a house under the Indira Awas Yojna. That’s not all. When well-known cardiolo- gist Dr Naresh Trehan, chairman of Medanta-The Medicity at Gurgaon, heard of the medical plight of the girl, he said that he would adopt her and ensure her free treat- ment at Medanta in Ranchi. Justice Virender Singh referred to this act in his speech at the recent India Legal Conclave in Ranchi applauding her treatment that was the best available in India at the high-profile hospital and also that two psychologists worked on getting the girl tide with her trauma. The Governor of Jharkhand, Droupadi Murmu, who was at the India Legal Conclave, pledged to provide funds for the girl's schooling and healthcare after listening to the heart-rending story. Earlier, as news travelled about the plight of the girl and her poor parents, donations poured in. The father now has ` 40.64 lakh in his account which will go for the welfare of the girl in the years to come. Justice Singh had this point to note: “This is access to justice. The pain that she suffered cannot be alleviated by pecuniary compensa- tion. But we did whatever we could do within the parameters of the law to achieve that end. When you hit your bed in the evening, your conscience asks you, ‘Judge, what have you done today?’ And the answer comes forth, ‘yes, I have done something’, and you go to bed with a calm mind.” Surendra Sardar, the 42-year-old rapist, was soon arrested and sentenced to rigorous life imprisonment. The sentence would run till his death, the court said as he had tried to rape another minor. The wheels of justice had come full circle. In another case that deserves mention, Justice Virender Singh directed a couple who wanted a divorce to stay in one room togeth- er for a few weeks. When they underwent that advice, they reconciled and realized it is better to be together than live apart. Both are now happily working together as para-legal volunteers counseling warring couples. Justice Singh pointed out that breaking up of a marriage was not only a tragedy for a cou- ple but for their children too, and so it is important for family courts to dig deeper into each case and try to save the marriage rather than break it. INDIA LEGAL August 15, 2016 19
  17. 17. W HEN armed mili- tants would often barge into his modest home in Imphal in the dead hour of the night, little Thounaojam Herojit would crouch in fear. They wanted his father to pay them as he was a govern- ment servant and was seen as the enemy. Each time they would demand thousands of rupees. So, his father had to sell pieces of his small landholding to meet their incessant demands. But when he grew up, there was a new emotion: anger. Little did these mili- tants realize that one day Herojit would turn his gun on them and without blinking shoot them point-blank. Earlier, this year, Herojit, 35, a head constable with the Manipur Police, confessed that he had killed over a hundred in encounters. Returning home after the encounters, he would bathe outside before entering his modest home. He would then get his wife, Ratna, to wash his uniform even if it was not soiled. It is only years later that she knew why. One of his last encounters was in 2009 of Chungkham Sanjit who had earlier been a militant with the PLA but had left it to live a normal life. Following orders of senior offi- Chronicles of 20 August 15, 2016 The imposition of this draconian Act way back in 1958 has seen mindless killings of innocent people, rapes of women and all-pervasive fear. However, a recent Supreme Court judgment could well change matters By Ramesh Menon TERROR’S CHILD Thounaojam Herojit with an under-barrel grenade launcher captured from Manipuri militants LEAD/ AFSPA/Manipur Illustration: Anthony Lawrence
  18. 18. Deaths Foretold TRAGIC END Sanjit, a former insurgent, was one of the many who were killed in fake encounters by Herojit. Sanjit had come overground and started living a normal life 21INDIA LEGAL August 15, 2016 cer, Akioijam Jhalajit, he had pushed the unarmed youth into a pharmacy in Imphal and shot him six times in full view of those who were in the shop. Sanjit’s body was then dragged out and thrown into a truck which had the body of a woman who was five months pregnant. She had fallen to a stray bullet moments before Sanjit’s death at the busy marketplace. He used to return home and record the details of each encounter in a notebook. As the pages of one got exhausted, he started another. That also got full, so he started the third. He felt no remorse during the killings, he said. But later, he felt that he must confess. In another instance, he chanced upon seven insurgents from the United National Liberation Front, who wanted a lift from a truck in which Herojit was traveling. After taking their guns, Herojit lined them up in a lonely place and shot them dead. That day, the police issued a statement that seven mili- tants had been killed in an encounter with the police. Herojit was suspended in 2008 after the death of a journalist, Konsam Rishikanta, working in Imphal Free Press but reinstated soon after. In 2009, he got a gallantry medal and was promoted as head constable. But as the trauma of these numerous fake encoun- ters caught up with him, he tried to escape by consuming various types of drugs. He fears for his life. He wonders whether he can escape the immense guilt that shrouds him and if fate will catch up with him. M anipur’s stunning landscape of mountains, water bodies and lush greenery, mixed with its tingling fresh air and the melodious songs of women as they work in the fields, stand out as stark contrasts in a state wracked by violence, fear and death. Insurgent activity for decades followed by retaliatory action by security forces has made life hell for ordinary people. Tension hangs around the state like a cloak. Images of tor- ture and death refuse to go away. When life is normal on certain days, the fear is that it will not last. It has been like this for many years now and people wonder how the next tragedy will unfold. Numerous terrorist groups oper- ate in the state. Some are demanding inde- pendence from India and mostly survive with foreign funding and arms. It is a lucrative business as they go around extorting money in the name of taxes. When Ravi Nitesh, a human right activist, recently visited Manipur, he asked a Class X student how the Armed Forces Special Powers Act (AFSPA) which gives security forces special powers to search, arrest, Tehelka
  19. 19. destroy property and kill, had affected him. The 15-year-old replied: “AFSPA has snatched our right to dream. Youngsters all over India can dream. We cannot. Every time I move out of home, my family worries if I will return. My grandfather and father have been victims of atrocities. No one is safe here, not even journalists. We live in constant fear.” For Manipuris, life is hell. They feel trapped in a state ravaged by frequent bandhs, attacks, arbitrary detentions, execu- tions and shortages. But more than every- thing else, it is the fear of impending death that mentally maims them. After any ambush on security forces, villagers flee from the area, fearing a backlash from uniformed forces even though they may have nothing to do with the attack. Over a period of time, even the state police forces have taken shelter under the Act, though they cannot under the law and have killed many in the name of encounters. Observers in the state feel that many of these extra-judicial killings have nothing to do with terrorism and are done just to win accolades and gallantry medals from the state government. Or to settle scores. The rant against AFSPA in the state has got louder with every encounter. “Almost every house in Manipur has a story about what AFSPA has done to people there,” says Nitesh. In 2011, he filed an RTI asking the National Human Rights Commission how many times its members had traveled to Manipur to probe human right violations between 2000 and 2011. The reply was that in those 11 years, none of its officials had visited Manipur. He was not sur- prised. This was when news about human right violations had got highlighted in the “The SC judgment on AFSPA demolishes the framework that is often used as a camouflage to hide or disguise fake encounters.” —Colin Gonslaves, senior lawyer and human rights activist 22 August 15, 2016 MISERY PERSONIFIED Manipur has been witnessing protracted violence, bandhs, insurgent activity and fake encounters for more than two decades UNI LEAD/ AFSPA/Manipur
  20. 20. media all the time. The Naga People’s Movement for Human Rights was formed in the JNU campus to fight AFSPA, among other things. In October 1980, it petitioned the Supreme Court, chal- lenging the constitutionality of AFSPA. Seventeen years later, the Supreme Court delivered a judgment on November 27, 1997, which said that it was constitutional to have AFSPA as it was applied only in affected areas and there were Do’s and Don’ts worked out by the army to ensure it would not do anything wrong. Well-known jurist Fali Nariman called it one of the most conserva- tive judgments in the annals of the Indian judiciary. In 2000, Human Rights Alert constituted an independent peoples’ commission of inquiry in Manipur under Justice Hosbet Suresh and lawyers Colin Gonsalves and Preeti Verma to look into the human rights impact of the prolonged imposition of AFSPA. Their report in October 2000, after meeting numerous victims of the Act, said that the Do’s and Don’ts the army followed under AFSPA were hardly complied with and were breached most of the time. Referring to the earlier Supreme Court judgment that said that AFSPA was constitutional, Justice Suresh said: “Sanction to kill cannot be con- stitutional.” One week after this report came out, on November 2, 2000, a bomb went off by the side of a road in Malom village near Imphal when an Assam Rifles convoy was passing by. No one was hurt, but the jawans rounded up 10 civilians and shot them dead at a bus stop as they suspected they were insurgents. Ironically, it included a 63-year-old woman and a school student who had won a national award for bravery. Three days later, Irom Sharmila, a 28- year-old woman who was a volunteer UNENDING VIOLENCE Security men inspect a site after a truck of the 6th Dogra Regiment was ambushed by militants in Chandel district of Manipur 23INDIA LEGAL August 15, 2016 “Almost every house in Manipur has a story about what AFSPA has done to people there.” —Ravi Nitesh, Convenor, Save Sharmila Solidarity Campaign
  21. 21. “Probes into fake encounter allegations would demoralize security forces who would have to bat- tle insurgency with their hands tied.” —Mukul Rohtagi, attorney-general of India with Human Rights Alert, was so incensed with the incident that she decided to go on an indefinite hunger strike demanding the removal of AFSPA. For the past 16 years, she has not had a morsel of food or water and is being force-fed at the Jawaharlal Institute of Medial Sciences in Imphal. She has been arrested numerous times on charges of attempting to commit suicide, but her resolve has not broken. Her action galva- nized numerous activists to demand the removal of AFSPA. One of them was Nishant, who, after his M Tech in gas engineering, decided to set up the Save Sharmila Solidarity Campaign in 2009 to sensitize society in India about what he calls, a “draconian law”. It took him numerous trips to Manipur to figure out the complications that ordinary lives were caught in because of human right violations. In a significant and far-reaching judg- ment, the Supreme Court recently said that AFSPA cannot continue forever and it was only a temporary measure to restore law and bring in normalcy. It clearly laid out princi- ples and points of law stating: There cannot be immunity for armed forces in human right violations The army and police can be investigated and prosecuted in accordance with law Criminal courts also have the jurisdic- tion to prosecute Truth about the violations must be found out Magisterial inquiries conducted are of no relevance as only the judicial inquiries are relevant Inquiries conducted by the human right cell of the army does not inspire confidence Internal disturbances have to be handled by a civilian administration and the role of the army is only to aid it. This has been one of the most hard-hit- ting judgments on human rights as the Act has been in force in Manipur for nearly 35 years. It said that it showed a failure of gov- ernance as no solution had been found. Senior lawyer and human rights activist Colin Gonslaves told India Legal: “The extraordinary judgment is a major break- through as it demolishes the framework which is often used as a camouflage to hide or disguise fake encounters.” The judgment was in response to a peti- tion filed in the Supreme Court in September 2012 by the Extra Judicial Execution Victim Families Association (EEVFAM). It wanted a Special Investigative Team to probe the 1,528 extra-judicial executions and compensate affected families. The court randomly picked six cases out of the lot and appointed Justice Santosh Hegde to head a commission of inquiry that would investigate the encoun- ters. Justice Hegde found that all of them were fake encounters and all the seven who were killed had no criminal antecedents. One of them was Azad Khan, a 12-year- old who was reading a newspaper to his mother when the Assam Rifles and police barged in and dragged him to a paddy field and shot him. Another shocking case involved a young villager who was cycling 24 August 15, 2016 Irom Sharmila plans to end her 16-year-old hunger strike on August 9 as she wants to now politically fight for removal of AFSPA. She has been under arrest all these years and has been fed with a nasal tube. She will contest the 2017 elections, she said. LEAD/ AFSPA/Manipur
  22. 22. around looking for his cow when he was picked up and shot dead. Then, there were cousins Nobo and Govin who were having tea at a stall when they were picked up and shot dead. Said Babloo Loitongbam, executive direc- tor, Human Rights Alert: “The judgment has brought hope to hundreds of families who have suffered under AFSPA and lost dear ones. We are working on documenting all the 1,528 cases in as much detail that we can find as the Supreme Court now wants to look into all these cases. How can we have such a law in a democratic civilized country?” Nirjhari Sinha, convenor of the Jan Sangarsh Manch, Ahmedabad, who vis- ited Manipur along with her late hus- band Mukul Sinha, a human rights activist and lawyer, said that it was ter- rifying to step out on the lonely streets of Manipur after 8 pm as there were uniformed men all around with guns. She said she would never forget the tales that she heard from young widows who had lost their husbands to encounters. “All these widows wanted was proof that their husbands were militants as this was the charge the army used to shoot them dead,” she said. In a significant observation, the Court said that if the Act had been deployed for so many years in Manipur, it directly reflected the failure of both the security forces and the government that had not resolved the problem. The Court said that while Manipur faced a public order situ- ation since 1958 for almost 60 years and gen- erations have gone by, issues continued to fester. It was high time that concerted and sincere efforts were made by civil society, insurgents, the state and central govern- ments to find a lasting, peaceful solution. The Court said that the use of excessive force or retaliatory force by the Manipur “There is a crying need to try armed forces personnel guilty of sexual offenses in conflict areas under the ordinary criminal law.” —Gopal Subramaniam, former Solicitor General of India SHOCK TREATMENT On July 15, 2004, 12 women stripped before the Kangla Fort in Imphal to protest against the alleged rape and execution of Thangjam Manorama by Assam Rifles jawans 25INDIA LEGAL August 15, 2016 Yahoo
  23. 23. police or the armed forces was not permissi- ble. Any allegation of excessive force result- ing in the death of any person by the Manipur police or armed forces must be thoroughly probed. The case will come up for hearing again in mid-August. The petitioners had pointed out that the Manipur police had not registered a single FIR against the secu- rity forces despite complaints that they were extra-judicial executions. Many of those killed had no criminal records but were labeled as militants, they said. In his submission to the Court, Mukul Rohtagi, attorney-general of India, argued that probes into allegations of fake encoun- ters would demoralize security forces, and they would end up battling insurgents with their hands tied behind their backs in a war- like situation. The Supreme Court bench of Justices Madan B Lokur and Uday Lalit rejected his arguments outright pointing out that there was no war-like situation in Manipur and what was under the scanner was the smoking gun and not the encounter operations. Security forces were deployed only to aid civil authorities and not for an indefinite period, the Court said. Rohatgi had referred to Article 355 which said that it was the duty of the Union to pro- tect every state against external aggression and internal disturbances and ensure that the government of every state is carried on in accordance with the provisions of the consti- tution. He stated that militant groups were operating in the north-east and demanding separation from India and had the support of countries inimical to the interests of the country. He said they were killing innocent people to create fear and indulging in extor- tion and had no fear of the law. There was a constant threat to Manipur from the militant groups, so counter-insurgency operations were carried out. As they had deadly weapons, the lives of armed personnel were under threat and so AFSPA was put into force, he argued. Rohatgi said that only 5,000 militants were holding a population of 23 lakh in Manipur to ransom and were exploiting eth- nic rivalries, tribal divides and unemployed youth to fuel tension. The Ministry of Defence had issued instructions to the armed forces to observe restraint in their opera- tions. “Situations of internal disturbances are not issues that can be decided in a court of law,” he said. The Ministry of Defence did not respond to queries of India Legal. On July 15, 2004, 12 women, who were all mothers, stripped before the Kangla Fort in Imphal that housed security personnel of the Assam Rifles to protest against the alleged rape and execution of 32-year-old Thangjam Manorama by its jawans. She had been picked up on the night of July 11 and hours “How can we have a law like AFSPA in a democratic, civilized country like ours?” —Babloo Loitongbam (left), executive director, Human Rights Alert 26 August 15, 2016 Jitendra Singh, minister of state for Development of Northeastern Region says decisions on sensitive issues like AFSPA should be left to the armed forces. LEAD/ AFSPA/Manipur
  24. 24. later, her body was found riddled with bul- lets. Forensic tests confirmed rape. The secu- rity forces said that she was a militant of the banned People’s Liberation Army. The encounter death of Manorama led to statewide protests. The women stood in front of the entrance to the Fort carrying banners asking the jawans to rape them too. All of them were arrested and jailed for three months. Soon after, the Assam Rifles moved out of the Fort and AFSPA was lifted from seven assembly constituencies of Imphal but continued in the rest of the state. O ne of the women, L Gyaneshori, who took part in the protest at the Fort told Human Rights Watch: “Manorama’s killing broke our hearts. We had campaigned for the arrest memo to pro- tect people from torture after arrest. Yet, it did not stop the soldiers from raping and killing her. They mutilated her body and shot her in the vagina. We mothers were weeping. Our daughters can be raped. They can be subjected to such cruelty. Every girl is at risk. We shed our clothes and stood before the army. We said: ‘We mothers have come. Drink our blood. Eat our flesh. Maybe this way you can spare our daughters.’ But noth- ing was done to punish those soldiers. The women of Manipur were disrobed by AFSPA. We are still naked.” The killers of Manorama were never found. This fact resonates in the state even though 12 painful years have flown past. C Upendra Singh, retired district sessions judge, who was the chairman of a commis- sion to probe into the death of Manorama, said: “This is the most shocking custodial killing of a Manipuri village girl.” His report said that she was picked up by armed troops of the 17th Assam Rifles at midnight from her home and later found dead with gunshot injuries on her private parts and thighs. Barging into her home, the jawans had dragged her out as she screamed out to Khumaleima, her mother, saying, “Ima Ima Khamu (Mother please stop them).” Assam Rifles had said that they had recovered a grenade and a radio set from her house and that she was shot as she tried to flee. Her family disputes this. In December 2006, then Prime Minister Manmohan Singh declared that the Act would be amended to make it more humane on the basis of the recommendations. But that never happened. In 2009, the UN Commission for Human Rights said the law was outdated and had no place in the 21st century. Neena Ningombam of the Extra Judicial Execution Victim Families Association said that 31 women and 98 children were killed by the security forces between 1979 and 2012. As the encounters invited national atten- tion through the media, the central govern- ment set up a committee under former Supreme Court judge BP Jeevan Reddy to look into the working of AFSPA. The Committee said the Act was a symbol of hate, a weapon of oppression and an instrument of discrimination and recommended its repeal. It also said that if the military needs a legal framework to fight insurgency, it must be a part of the general law and there must be a window for commoners to register their grievances, if any. The government did not act on the recommendation. The UPA just chose to be silent on the report. Soon after it took over, the NDA government rejected it in toto. Let us look at the origins of this draconian law. It was the British in India who whipped up the Armed Forces Special Powers Ordinance in 1942 to suppress the freedom movement led by Mahatma Gandhi in India. Lord Linlithgow, the viceroy of India hur- riedly promulgated it on August 15, 1942, after the Congress passed the historic “People’s lives in Manipur are fettered by an overwhelming and intrusive military presence where their lives could change any minute. AFSPA is a tangible symbol of oppression with justice and human rights being inevitable casualties.” —Minnie Vaid (left), author of Iron Irom- Two Journeys 27INDIA LEGAL August 15, 2016 Anjalika Sharma
  25. 25. IL Indian soldiers and paramilitary men to crush it. He got AFPSA (1958) passed in parliament to boost the army attack and provide them legal protection. One of the few MPs who spoke up against it was Surendra Mohanty who said that while all of us wanted a free India, we did not want one with barbed wires and concentration camps where havaldars could shoot anybody. What followed were large-scale atrocities which Nagas even today recall with anger and bitterness. Gavin Young, a reporter from The Observer who was witness to it as he traveled through the state at that time, wrote: “The stories of burned rice stores and houses seemed end- less. Individuals told how they had been beaten and tied up for hours without water; how they had been bound and hung downwards from beams to be flogged; how sons, brothers and fathers had been bay- oneted to death.” A 2008 Human Rights Watch report called “These Fellows Must Be Eliminated: Relentless Violence and Impunity in Manipur” says that for 50 years there had been a failure of justice in Manipur and the army protected under AFSPA has been involved in numerous violations of human rights and so could not be held accountable for serious crimes. “In the name of national security and armed forces morale, the state protects abusers and leaves Manipuris with no remedy to secure justice”, the report said. The Justice JS Verma Committee that suggested amendments to laws relating to crimes against women said that there was an imminent need to review the continuance of AFSPA. Gopal Subramaniam, one of the committee members, said that there was a crying need to try armed forces personnel guilty of sexual offences in conflict areas under the ordinary criminal law. When will these numerous voices be heard? The Supreme Court remains the only hope for thousands of victims and their families. 28 August 15, 2016 Quit India resolution on August 8, 1942. The British were under a lot of pressure, with the Japanese making advances during World War II. They had entered Burma and also parts of Nagaland and Manipur. So the law put in had all kinds of rigorous clauses giving extensive powers to the army. India created the Armed Forces Special Powers Act drawing on this British ordinance and added some more provisions which made it stringent. It added vaguely defined powers like using force to search any place without warrant, destroying a place if there was suspicion that it was being used by armed groups and even killing any person it suspected of carrying weapons. While the British Ordinance had only authorized captains or officers above this rank to take action, the Indian Act gave the power to lower ranks, which included non- commissioned officers. Garnering huge pow- ers under this Act, security forces have till now being shielded from being tried under human right violations. But with the latest observation by the Supreme Court, it will not continue to be the case. When the Naga insurgency which was demanding independence from India broke out in 1954, Prime Minister Jawaharlal Nehru thought it best to send in battalions of Jammu and Kashmir Assam Nagaland Manipur (except Imphal municipal area) Arunachal Pradesh (only Tirap, Changlang and Longding districts, plus a 20-km belt bordering Assam) Meghalaya (confined to a 20-km belt bordering Assam) Statesunder AFSPA SEARCH OPERATION Manipur residents are often subjected to checks by security forces. The abnormal has become normal here LEAD/ AFSPA/Manipur
  26. 26. NATIONAL BRIEFS — Compiled by Sucheta Dasgupta Child labor bill passed Parliament has passed the contro- versial Child Labour Amend- ment Bill, 2016, which allows a child to help out in family enterprises after school hours. The new legislation extends the ban on child labor to all sectors of 18 hazardous occupations and 65 processes. It also stiffens penalties for those employing children. However, under the new law, children will be allowed to work in family businesses, outside school hours, and in enter- tainment and sports, if it does not affect their studies. Children aged 15 to 18 years will be permitted to work, except in mines and hazardous industries. The government says the exemptions aim to strike a balance between education and India's eco- nomic reality. Meanwhile, UNICEF has raised concerns about the Bill. Bachpan Bachao Andolan founder and Nobel Peace prize winner Kailash Satyarthi too is of the opinion that the changes would lead to further victimization of poor children. Just as education became a fundamental right in 2009, health, too, could become one soon. Pending for nearly two years, a draft national health policy proposed by the ministry, which advo- cates a National Health Rights Act, will be for- warded to the Union cabi- net early August. The Act, if passed, will make “denial of health“ an offense. The policy proposes that the Center, in coordination with the states, use the legal clause available under the Clinical Establishments Bill and ensure health as a fundamental right. It propos- es that public health expendi- ture be raised to 2.5 percent of the GDP from the current 1.2 percent. The Center has cleared the appointment of chief justices to three high courts—Patna, Punjab and Haryana and Allahabad. The new appointees include Justice IA Ansari as chief justice of Patna High Court, Justice DB Bhosale for Allahabad High Court and Justice SJ Vazifdar for Punjab and Haryana High Court. Earlier, the Center had requested the Supreme Court collegium headed by Chief Justice of India TS Thakur to reconsider acting Patna HC chief justice Ansari’s appoint- ment. But the collegium took a tough stand, causing the Center to give in. The Center has also accepted the recommendations of the collegium for the transfer of Justice Indira Banerjee from Calcutta HC to Delhi HC and Justice MM Shantanagoudar from Karnataka HC to Kerala HC. Appointments to three high courts Congress leader Digvijaya Singh and his family have been listed in the below poverty line (BPL) category in the census list of socially and economically backward classes for free LPG connec- tions under the Prime Minister’s Ujjawala Yojana. “This is a conspiracy against me and my family. I demand a probe,” Singh, who was once chief minister of Madhya Pradesh and is also a descendant of the erstwhile ruler of Raghogarh, said. Officials in Guna district, however, maintained that Singh and his family were included in the BPL list in 2011 after a socio-economic caste census. The family has lodged a complaint with the district collector and sought an investigation even while Singh blamed the state government for the mess. Health, a fundamental right Digvijaya wants probe for BPL listing 29INDIA LEGAL August 15, 2016
  27. 27. SUPREME COURT/ MTP Act O N July 25 Ms X, a rape victim from a disadvantaged back- ground, was permitted to termi- nate her 24 week old pregnancy by a Supreme Court order after a team of doctors had examined her. The judgment by the apex court brought the focus on a recent spate of cases where courts have aided young rape survivors to over- come the limitations of legislation on med- ical termination of pregnancy. The Medical Termination of Pregnancy Act (MTP Act) which was enacted in 1971 was considered progressive then because it allowed for medical termination of pregnan- cy. Prior to 1971 abortion was an act punish- able under the Indian Penal Code, a law that came into force under British rule in 1860! But according to rights lawyer Colin Gonsalves, who appeared for Ms X, the law remains frozen in the 70s, both in terms of factoring in medical advances as well as in keeping up with social realities. The law needs to be amended. SERIOUS ABNORMALITIES In Ms X’s case the fetus showed terrible abnormalities when the mother was exam- ined after 20 weeks—according to medical analysis it would not have survived the birth. A gynecologist who did not want to be identified, explained that the description given by the team of doctors who examined Ms X on the orders of the Supreme Court showed that not only were the organs of the fetus outside the body, but also that the vault AbortionNeeds anAmendmentAn apex court order allowing a rape victim to terminate her 24-week pregnancy brings into focus the need to change an outdated legislation which controls medical intervention. It is time our lawmakers wake up to scientific advances and to social realities By Nayantara Roy 30 August 15, 2016 Rajender Kumar
  28. 28. of the skull was not formed, a condition called anencephaly wherein the frontal lobe is missing. The gynecologist explained that this baby would not have survived birth in any case and labor would have been prolonged due to the missing frontal lobe of the brain which normally helps the fetus participate in the labor process. The shoulders would have got stuck and there was danger to the mother of obstructed labor with uterine rupture and post-partum hemorrhage. All fierce sounding medical terms which effec- tively mean that the mother would probably have died giving birth to a child who would not have survived anyway. Further, in Ms X’s case, the gynecologist explained that the trauma of carrying the baby to term would be tenfold that of the trauma of terminating the pregnancy at the 24 week stage. Section 3(2)(b) of the MTP Act of 1971 puts a ceiling on termination of pregnancy after 20 weeks. Section 5 sets out an excep- tion to Section 3 in case the mother’s life is in danger. However, there is no provision if the mother’s life is not endangered but the fetus has abnormalities. The onus of caring for such a child including the possible med- ical expenditure on such a child would be on the pregnant woman, no matter her age, sit- uation or ability to provide. The explanations to section 3 do take into account situations such as pregnancy caused by rape, the anguish of which could pose a grave risk to mental health. It allows for terminating a pregnancy arising out of failure of contraception but only applies it to a married couple. The woman’s “foreseeable environment” is also taken into account when considering grave risk to mental health. But all this is considered to be within the 20-week limit. While abortion has historically been a key issue for feminists in the United States, in India, the women’s rights movement has focused on stopping female feticide. 31INDIA LEGAL August 15, 2016 UNI
  29. 29. Cases pleading for termination of preg- nancy being heard in court expose the limi- tations of the current legislation. Gonsalves’ client Ms X obtained relief from the Supreme Court which applied the exception set out in section 5 to her case. Even as her case was being heard a 15 year old victim of rape sought the Delhi High Court’s inter- vention to enable her to abort a 24 week old fetus. The Court constituted a medical panel to determine the physical and mental condi- tion of the 15 year old to ascertain if the pregnancy can be terminated. Similarly, in January this year the Madras High Court directed a medical board to determine whether the five month pregnancy of a 14 year old, rescued from the flesh trade, could be terminated. REASON TO REVISIT ACT American birth control activist and sex edu- cator Margaret Sanger had famously said “no woman can call herself free who does not own and control her body”. The MTP Act, 1971 while introduced by the then health minister S Chandrasekhar as a step towards the emancipation of women does not give women the right to make this important decision regarding abortion but places the decision making in the hands of healthcare providers. This is a view endorsed by Shweta Krishnan, research associate at IIT Madras, in her paper in the Indian Journal of Medical Ethics. She points out that the Medical Termination of Pregnancy (Amendment) Bill of 2014 intends to make much needed changes in the current Act. These will go a long way towards saving women from reaching out to what Gonsalves terms “the underground” in order to terminate pregnancies that the limita- tions of the current Act force many women to resort to. Poverty and lack of access to information and knowledge of what to do is probably why so many cases seeking termination of pregnancy after the 20-week period have been allowed by various courts across the country. But among the poor who lack prop- er healthcare, there is the chance that a woman may not even realize that she is T he MTP Act in its current form allows termination of preg- nancy on the advice of one allopathic medical practitioner for up to the first 12 weeks of preg- nancy. Between 12 and 20 weeks, the advice of two allopathic med- ical practitioners is required in order to terminate the pregnancy after which period termination is not allowed except under excep- tional circumstances as spelt out in Section 5. Termination of pregnan- cy is allowed within the 12- and 20- week period only on the grounds that the continuance of the preg- nancy would involve a risk to the life of the pregnant woman or “of grave injury to her physical or men- tal health”. In the alternative there should be a substantial risk that if the child were to be born it would “suffer from such physical or men- tal abnormalities as to be seriously handicapped”. Section 5 lays down exceptions to Section 3. This section allows ter- mination of pregnancy over the 20- week period prescribed in Section 3 and does away with the require- ment of the advice of two medical practitioners if a medical practition- er is of the opinion, in good faith, that termination is immediately necessary to save the life of the pregnant woman. Thecurrentlaw The MTP Act allows termination of pregnancy beyond 20 weeks only under exceptional circumstances SUPREME COURT/ MTP Act Lawyer Colin Gonsalves supports the MTP (Amendment) Bill but feels that it’s unlikely to be passed anytime soon. In 1919, American activist Margaret Sanger espoused the woman’s right over her body. The term, birth control, is attributed to Sanger. 32 August 15, 2016
  30. 30. pregnant until the 20-week period lapses and fetal movement is first felt. Often rape victims who find themselves pregnant are too young to understand till it is too late. It is in this context that an amended law is important. THE PROPOSED LAW The MTP Amendment Bill, 2014, provides for termination of pregnancy up to 24 weeks. It will allow termination of pregnan- cy of up to 12 weeks on the decision of the woman herself. After 12 weeks and up to 24 weeks the advice and opinion of only one medical practitioner will be needed making the process less bureaucratic and cumber- some. This amendment takes into con- sideration that medicine has advanced since 1971 when D&Cs (dilation and curettage) were the only abortion methods available. At a later stage of pregnancy this method could prove dangerous to the mother. The current practice is to induce mini labour by administering oxytocin and a cervical dilatory agent so that the fetus is delivered along with the pla- centa. Then, if required, some scrap- ing might be done. Some doctors say that by this method the pregnancy can even be terminated in the eighth and ninth months. In Ms X’s case the Attorney General argued that having a liberal process for medical termination of pregnancy would increase female feticide. But Gonsalves points out that feticide is a completely dif- ferent issue. Krishnan in her paper says that the Pre-Conception and Pre-Diagnostic Techniques Act 1994 (PCPDT) is meant to tackle feticide. It is true that trade in fetuses is a grisly crime that is supported by markets as varied as beauty and medical treatments and might be a fall out of a liberal MTP regime. Special laws are needed to tackle this horrific crime. But the answer cannot lie in forcing unwant- ed pregnancies on people who cannot sup- port the progeny, especially in cases of severe abnormality of the fetus. The intent of the law should be to help victims expeditiously and not to burden them further. According to Krishnan the Abortion Assessment Project report says that 56 percent of the 6.4 million abortions per- formed annually in India are unsafe. Ten to 13 percent of maternal deaths are due to unsafe abortions. Drafting good laws is all about factoring in possible fall outs, social evils and whatever else may impact on a law, not restricting the law so that it cannot ful- fill its intent. In another case represented by Gonsalves, the Bombay High Court had rejected the plea of a pregnant woman to terminate her more than 20 week pregnan- cy. She had only just found out that the fetus was abnormal. An appeal has been filed in the Supreme Court challenging the MTP Act. The rights lawyer is all for a progressive MTP (Amendment) Bill but is pessimistic about our lawmakers passing it. T he US has also seen court rul- ings against abortion laws that make access to termination dif- ficult. Recently the US Supreme Court ruled against a Texas law that had made access to abortion very difficult due to excessive procedural regulations. The discourse in the US revolves around “life” and the immorality of taking “life”. In the 1973 landmark American case Roe versus Wade the right to privacy was extended to a woman’s decision to have an abortion. In order to protect maternal health as also human life abortion laws were tied to the third trimester of pregnancy. Subsequently in Planned Parenthood vs Casey the period during which abortion was allowed was linked to the viability of the fetus outside the womb, even with artificial help. With advances in medicine it has become possible to keep a fetus alive outside the womb at earlier stages. This linkage has resulted in various US state legisla- tions becoming more conservative on the period until which abortions are allowed. Nevertheless the courts in the US have in recent times ruled more liber- ally in favour of women as for exam- ple when the US Supreme Court recently struck down a proposed Arkansas law that would have pro- hibited abortion after 12 weeks. TheUSexperience The 1973 Roe vs Wade case was a watershed moment for America’s abortion rights activists IL 33INDIA LEGAL August 15, 2016
  31. 31. SUPREME COURT/ Lodha Committee Recommendations T HERE is this story that someone close to Vee- rappa Moily, Union law minister in UPA-II, likes to narrate. It does not have to do with the for- mer minister’s literary pursuits in his mother tongue, Kannada, nor his vision of India as a future superpower spelt out in four volumes in English titled Unleashing India. It has all to do with Moily’s effort to cleanse sports and push through a Bill in 2011 that would bar politi- cians from heading sports federations. The A Game-Changing With the apex court endorsing the findings of this panel, lawmakers will find it easier to frame effective legislation to debar politicians from holding office in sport federations By Ajith Pillai 34 August 15, 2016 UNI
  32. 32. move did not find favor with his own cabinet colleagues or politicians from all major political parties. STICKLERS FOR POWER The Sports Development Bill (2011) was summarily rejected at a cabinet meeting in August 2011. Among those who objected were ministers who headed sports federa- tions or were closely associated with them— Sharad Pawar, Praful Patel, Farooq Abdu- llah, Rajiv Shukla and Jyotiraditya Scindia. It was a major embarrassment for then sports minister Ajay Maken as well as Moily. Later, a revised form of the draft bill was prepared by a working group of legal experts and former and current sportspersons under the chairmanship of Justice (Retd) Mukul Mudgal. But the proposed law has not been tabled in parliament so far and media reports suggest that it has all but been abandoned by the NDA government. By all accounts, there is stiff resistance from the political establishment to any clean-up effort vis-à-vis sports. With the recent Supreme Court ruling on July 18, 2016, upholding the Lodha Commi- ttee recommendations on reforming the BCCI, there is a view emerging that it is time that some of the Committee’s recommenda- tions be applied to other sports federations as well. Congress leader and Supreme Court lawyer Manish Tewari, who represented ex- cricketers Bishan Singh Bedi and Kirti Azad in the apex court in the BCCI matter, felt that it is time for other sports bodies to ring in changes, however unpalatable. “Why should other sports be treated dif- ferently from cricket? What is good for the goose is good for the gander. I think the time has come that the Lodha Committee recom- mendations should be used as a template and the principles should be applied across the Indian Olympic Association (IOA) Verdict GAME OVER? (L-R) Rajya Sabha MP and senior BCCI functionary Rajiv Shukla and NCP president and former BCCI President Sharad Pawar stand to lose their clout if the reforms are implemented (Facing page) The money-spinning IPL has been at the center of several corruption controversies There are 70 recognized sports federations of which 38 are headed by politicians. What is worse, once the takeover happens, the netas and their cohorts don’t let go. INDIA LEGAL August 15, 2016 35 UNI UNI
  33. 33. and all the sports federations,” Tewari told a news agency following the SC judgment. REASON FOR RESISTANCE So why are sports bodies resistant to any government oversight or accountability? The main argument advanced has been that it would impinge on their autonomy thr- ough official interference. When the Draft Sport Development Bill was submitted to various stakeholders in 2011 and its revised form two years later, it was pointed out that there was no international precedent of such a broad sweep law covering all sports and that India would be the first to implement it. Most sports bodies the world over had self-regulatory mechanism and the judicial system came into the picture only when the- re was any illegality or crime involved like match-fixing. Moreover, it was argued that government involvement cannot guarantee professionalism in sports management. Sports federations, including the IOA, were also uncomfortable with age limits and limiting tenure duration of its office-bearers as well as restrictions on ministers and gov- ernment servants to be included. But the apex court ruling on the Lodha Committee recommendations has provided clarity on all these issues. In effect, a template, as Manish Tewari put it, has been provided. But behind all the objections, it is easy to see the sub-text: our politicians are loath to give up control over sports federations that they so immensely enjoy. According to the Delhi-based Centre for Public Policy Res- earch, there are 70 recognized sports feder- ations of which 38 are headed by politicians. What is worse, once the takeover happens, the netas and their cohorts don’t let go. Remember Jagdish Tytler headed the Judo Federation for 25 years and when age caught up with him, he quit only to become a patron for life! Then there is the Archery Federation which was headed by BJP’s Vijay Malhotra for 40 years (he is now hono- rary life president). The list goes on span- ning all parties…. SPORTSPERSONS TAKE OVER Sportspersons over the years have been harping on the fact that politicians need to One can understand politicians being interested in being part of the man- agement that runs popular, glamorous and cash-rich games like cricket. But what about lesser-known sports like handball or, say, Sepaktakraw (volleyball played with the foot) or even Kho-Kho? According to sports journalists, heading even the most nondescript sport federa- tion comes with the following perks— money, power, foreign travel and the prospect of furthering business interests. The popular impression is that sports bodies, other than those which manage games like cricket and tennis, are cash- strapped and hence compensate players poorly. But that may not be true. Sports organizations get grants from internatio- nal bodies like the Olympics Association Perksgalore Justice Lodha (left) has suggested sweeping reforms to rid cricket of corruption. Justice Mukul Mudgal (right) exposed the peril of betting in IPL. SUPREME COURT/ Lodha Committee Recommendations 36 August 15, 2016
  34. 34. be kept out of federations, which in turn have to function with transparency. Here is a representative sampling of what two icons of Indian athletics reportedly said. “For the good of sport, sportsmen should be at the helm of affairs,” said Milkha Singh, former track and field sprinter. “We have seen several politicians at the helm of various sports bodies in the country and there has not been much improvement. I feel the time has come for sportspersons to take over.” That is what ace sprinter PT Usha said. Her views are endorsed by the likes of Ashwini Nachappa, Kirti Azad and Bishen Singh Bedi. But critics will argue that getting rid of politicians from sports federations and bringing them under government oversight by passing a law will not bring professional- ism to sport. In fact, the sports ministry has a poor track record in this regard. Perhaps the private sector needs to be more involved. This was articulated in an assessment of the Draft Sports Development Bill by the Federation of Indian Chambers of Comm- erce and Industry (FICCI). for development of the sport. Much of the monies is siphoned off and shown as expenses in the books. There is very little accountability and no questions are asked and there is no media scrutiny of the bodies that run marginal sports. During foreign junkets to attend meet- ings not only is one hosted and taken care of but the representative of a sports body is often treated as a guest of the state and can meet senior officials, including ministers, in the country he is visiting. This opens up business possibili- ties and regular visits cement ties which could translate into deals not always connected with the sport. Similarly, he can represent foreign business interests back in India. For the politician, another perk is influ- encing team selection, deciding on coaches and the venue where a tourna- ment is to be conducted. As sports administrators, netas can also reward cronies by favoring their candidate for selection into a team. Lesser-known sports rarely attract controversy, so there is no public furore over who is chosen and who is not. Finally, there is this feeling among most politicians that their CV looks impressive if they are seen as associat- ing themselves with any sport. So what if it’s cycling or tug-of-war? VeerappaMoily He faced embarrassment when his draft Bill on BCCI reforms was rejected by many of his own partymen in the Congress. FarooqAbdullah The flamboyant National Conference leader was among those who opposed reforms suggested by Moily. JagdishTytler He headed the Judo Federation for 25 years and later became patron for life, when age caught up with him. INDIA LEGAL August 15, 2016 37
  35. 35. To quote FICCI: “Industry’s importance and role must be stressed beyond the con- text of collaboration with National Sports Federations (NSFs). There is mention of introducing and implementing professional management and processes within the spo- rts domain. Industry will be able to impart and introduce more stringent and fiscally professional and responsible practices therefore it must be given a defined role within the Sports Bill and the Sports Code. There is a strong case for public private partnerships (PPPs) for infrastructure relat- ed and capital intensive initiatives. Industry can also contribute to human capital res- ource projects such as skill training, and professional management expertise.” PROFESSIONAL MANAGEMENT However, pundits warn that wanton com- mercialization of sports comes with its own set of problems as has been illustrated in the case of cricket. Admittedly, professional management of sports bodies is the answer to many of the ills that currently plague sports federations which are run like fief- doms by politicians. Perhaps, to break their stranglehold and to professionalize sport, a legal framework needs to be put in place, otherwise change will be resisted. While delivering their verdict on the Lodha Committee recommendations, the apex court bench of Chief Justice of India TS Thakur and Justice FMI Kalifulla made this significant observation: “The truth is that resistance to change stems partly from people getting used to the status quo and partly because any change is perceived to affect their vested interest in terms of loss of ego, status, power or resources. This is true particularly when the suggested change is structural or organisational which involves some threat, real or perceived, of personal loss to those involved.” If the BCCI resisted change till now despite the spot-fixing scandal, then it is dif- ficult to see sports federations change in the absence of a law. The latest Supreme Court verdict can help our lawmakers frame a new and effective legislation that would be holis- tic and good for sport in the country. The Supreme Court verdict okayed most of the Lodha Committee recommendations for reforming the BCCI. Here are the key ones: All recommendations cleared by the Court will have to be implemented within six months No one above the age of 70 can become an office-bearer in the BCCI or state associations Ministers and bureaucrats barred from being office-bearers Officials cannot hold dual posts in the state unit and the BCCI Only one vote per state at BCCI meetings Parliament will decide on whether BCCI should be brought under the ambit of RTI and if bet- ting should be legalized Running of the BCCI will have to be stream- lined and become pro- fessional SCverdict PTUsha,acesprinter She says India has several politicians at the helm of various sports bodies in the country and there has not been much improvement. MilkhaSingh,formertrack andfieldsprinter He firmly believes that for the good of sport, sportsmen should be at the helm of affairs. IL SUPREME COURT/ Lodha Committee Recommendations 38 August 15, 2016 UNI
  36. 36. The Supreme Court made it clear that once it decides upon a law, the con- cerned authorities must “follow and implement it in letter and spirit”. The court’s observation came on a petition filed by an NGO, Lok Prahari, which claimed that despite the apex court’s 2013 ruling, instances of lawmakers los- ing membership of parliament or state legislatures, once convicted, were few and far between. The apex court, in its July 10, 2013 verdict, had struck down Section 8 (4) of the Representation of People Act 1951. The Section enabled convicted MLAs and MPs to legally challenge the order in a higher court within three months and get a stay and steer clear of Section 8 (1) (2) and (3) which disqualifies them for six years. After the order, MPs and MLAs were to be immediately disqualified for six months once convicted. The NGO alleged that no system was in place for the trial court to get in touch with the Election Commission and pass on the information about a lawmaker once he/she is held guilty of a criminal offense. The apex court asked the poll body and the center to respond on the petition. Are laws being followed? SUPREME COURT The Ministry of Defense will take charge of the controversy-ridden Adarsh Cooperative Society Building in Mumbai, the apex court ruled recently. It also asked the regis- trar general of the Bombay High Court to supervise the transfer—either personally or through somebody deputed by him—and prepare an inventory of all important documents related to the building. The court did not pass any order on the pleas from residents of the Society challenging and seeking a stay on the Bombay High Court’s April verdict to demolish the building. But the bench dealing with the case observed that it was “implicit” in the order itself that the demolition had been stalled till the court settles the issue. The counsel for the ministry informed the court that there will be no demoli- tion till the apex court takes a final call on the issue. Adarsh Society in charge of MoD Just because a tradition has sustained for thousands of years does not imply that we continue to cling to it, the apex court reminded proponents of Jallikattu, a brutal bull-taming sport in Tamil Nadu. To bring home the point, it asked the Tamil Nadu govern- ment, whether the same logic could be applied to child mar- riage which had existed for centuries in India. The court’s response came when the counsel for Tamil Nadu, Shekhar Naphade, argued that Jallikattu should be allowed as it was part of the culture and tradition of Tamil society since ancient times. The court was hear- ing pleas filed by animal rights activists against the center’s (NDA gov- ernment) notification in January this year, allow- ing the traditional sport on the occasion of Pongal. The January notification had overturned the 2011 notification of the central government (UPA) prohibiting the sport, as well as the 2014 order of the apex court, upholding the 2011 notification. The next hearing in the emotive matter is slated on August 30. Old, not always gold 39INDIA LEGAL August 15, 2016
  37. 37. The apex court took a serious note of the exploitation suffered by porters who lug sup- plies, ration and ammunition of the Army in hilly areas along the borders and held that this must stop. It blamed the system set up by the Army for the scourge. It was responding to a plea by some porters who complained that they were deprived of even minimum wages as sanctioned by law despite doing the job for years. They also lamented that there was no job security and some of them had been removed by the Army after receiving one- time compensation. The counsel for the Army contended that a scheme was being chalked out for porters and the information presented by them in court had been blown out of proportion. He requested for an opportunity to respond to their allegations. Granting his wish, the court gave the Army a week’s time and fixed the next hearing for July 29. But this was not before it had almost arrived at a decision to hand over the charge of examining the service conditions of the porters to the Armed Forces Tribunal. Porters can’t be exploited The apex court recently asked a Delhi- based management institute—FORE School of Management—to deposit `2 crore with its registry over an issue resulting from over-admissions. It was responding to the institute’s plea to sanction the admission of 51 “extra” students for the current academic year. The matter had gone to the Supreme Court with FORE seeking the court’s intervention to direct All India Council for Technical Education (AICTE) to grant approval for the extra seats. Parents of 22 affected students had also filed a petition against FORE in the court. They had dragged FORE to the apex court for play- ing with their career. FORE had over-admitted students in its two-year programs—Post Graduate Diploma in Management (PGDM) and International Business (PGDM-IB)—and had later asked the students to withdraw their names. And that too, a fortnight after the ses- sion had started. The institute had earlier applied to AICTE for the approval of extra seats but AICTE had refused citing a Supreme Court order that had set the deadline of April 30 for approval to technical institutes. However, FORE went ahead presuming that the approval will come later. The counsel for FORE, Salman Khurshid pleaded that the B-school had applied to AICTE much ahead of the deadline and met all requirements. He laid the blame on AICTE for delaying the sanction, putting at risk the career of so many students. The counsel for AICTE countered FORE’s plea on the ground that the denial had been issued well in advance. The bench dealing with the case listed the matter for August 9. FORE asked to deposit `2 crore —Compiled by Prabir Biswas, Illustrations: UdayShankar SUPREME COURT 40 August 15, 2016
  38. 38. COURTS/Rajasthan/Salman Khan Verdict Y ET again, the stars seemed to favor Salman Khan. On July 25, the Rajasthan High Court acquitted the actor in two sepa- rate cases where he was accused of poaching on chinkaras belonging to the deer family. In fact three separate cases were filed against Khan for killing deer on differ- ent days in the months of September and October 1998 while he was in Jodhpur for a film shoot. The trial court had convicted Khan under Section 51 of the Wild Life Prot- ection Act and sentenced him to one year of simple imprisonment with a `5,000 fine. But the High Court found all the evidence produced most unsatisfactory and replete with infirmities. Khan was convicted primarily on the statement of the driver of a Gypsy that Khan purportedly used for his hunting trips. The driver’s statement had been taken down under section 164 of the CrPC before a mag- istrate but was subsequently never exam- ined in court as he had “disappeared.” Therefore Salman Khan’s lawyer was not given an opportunity to cross examine him as per the requirement of section 33 of the Evidence Act. It was found that the driver had been kept in the illegal custody of the Forest Department at the time that his statement under Section 164 was recorded. Further, the testimony of the vehicle owner was that the driver had been left behind at the Umaid Bhawan Palace Hotel and had not driven Salman Khan. Regarding the driver’s testimony, the court said that it made Salman Khan appear to have been “multi-tasking”, driving the vehicle, shooting the deer, climbing out of the vehicle to cut the deer’s throat with a knife and climbing back in to take the wheel. The vehicle had been left unattended and uncovered, in the open, after recovery. Testimony from various witnesses showed discrepancies such as that they had not found blood or hair in the car at the time it was impounded but several days later they found deer bloodstains (proved by laborato- ry forensic reports) and hair in the vehicle. Even regarding the recovery of the vari- ous guns allegedly used the evidence showed that the .22 gun had been brought to Jodhpur only on the request of officials after the case had been filed. There was nothing to prove that it was in Jodhpur prior to the filing of the case. The other two weapons, a revolver and an air gun were not the usual weapons that are used in deer hunting. Importantly no deer carcass was recovered; therefore bullets could not be matched to corroborate the prosecution’s story. According to media reports, animal rights activists have alleged that the evi- dence has been deliberately weakened. Two days after the verdict the driver, Harish Dulani reappeared and told the media that his family had been threatened and that he would have come forward and deposed if he had been given protection. No One Killed the Chinkaras The actor is acquitted by the Rajasthan High Court in two poaching cases in which he had been earlier convicted By Nayantara Roy NOT GUILTY Salman outside the Rajasthan High Court premises IL 41INDIA LEGAL August 15, 2016 UNI