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4. 4 July 15, 2019
N terms of nationalist dogma, public pledges
or agitations by political parties—particularly
the BJP—for the abolition of the special status
granted to the state of Jammu & Kashmir
under Articles 370 and 35A have tremendous
emotional appeal. Why, people on the street de-
mand to know, should this Muslim-majority state
which seems to want to separate from India and
perhaps even join Pakistan, be mollycoddled with
provisions like a prohibition on non-state people
buying land in territory that is irrevocably India’s.
Actually, the BJP has itself blown hot and cold
on this issue. In Modi’s first avatar as prime minis-
ter when the party was in partnership with a
regional Kashmiri party—the PDP—these issues
were put on a backburner. The BJP’s latest mani-
festo, ushering in Modi 2, has now made the aboli-
tion of these Articles a priority. The irony is that
many historians argue with considerable convic-
tion that these Articles, far from encouraging sep-
aratism, are, indeed, articles of faith which keep
J&K within India’s legal and emotional embrace.
The people of Kashmir embraced India and
spurned Pakistan well before India embraced
Kashmir. How many people recognise this fact
as the strongest building block on which to re-
establish the trust and camaraderie which made
Kashmir an irrevocable part of the Indian Union
in 1947?
Very few. Largely because most of us are guid-
ed by emotion and political expediency. In today’s
climate of instant punditry, few of us want to
bother to educate ourselves to make informed
judgements. Prime Minister Narendra Modi,
much to the consternation of his critics, his sup-
port base and Hindu hardliners, appears to have
taken an enlightened approach towards trying to
calm things down in Kashmir on the basis of his-
torical realpolitik rather than jingoistic suitability
during his first term.
His first Independence Day statement was
heard with great attention in Jammu and Srina-
gar: “The problems in Kashmir can’t be resolved
through gali (abuse) or goli (bullet), but only by
embracing Kashmiris.”
The formula for achieving this, his former
home minister, Rajnath Singh, later elucidated,
would be a “permanent solution based on five Cs—
compassion, communication, co-existence, confi-
dence-building and consistency”. He went even
further. He actually debunked leaks springing
from his own government that it would support a
petition in the Supreme Court seeking the abroga-
tion of Article 35A of the Constitution. This 1954
provision amended the Constitution of India to
provide for special safeguards for the permanent
residents of the state of Jammu & Kashmir.
“The central government has nowhere initiated
anything with regard to this issue (of Article 35A).
We have not gone to court. I want to say it clear-
ly—I am not talking only about Article 35A, what-
ever our government does, we will not do anything
against the sentiments and emotions of people
here. We will respect them,” Singh said.
This could well have been another manifesta-
tion of the hard-side-soft-side approach in deal-
ing with popular insurgencies, but it was still a
move that separated dealing with genuine terror
with force from seeking to accommodate legiti-
mate differences within a solution-oriented
framework. Lumping all Kashmiris into the hard-
line category of jehadis and pro-Pakistani
Islamist separatists and crushing them ruthlessly
into submitting to a historical narrative into
which they cannot buy is precisely what strength-
ens Pakistan and its surrogates. Delhi made the
mistake once of turning the war against Sikh ter-
rorists into a war against Sikhs in general and
paid a terrible price. Similarly, India’s war against
armed Kashmiri terrorists often transforms
itself into a war against all Kashmiris, leaving
them little room to edge back into the space of
mainstream politics to achieve their aims. And
Pakistan gains by default.
It need not be so. Because in this case, history
has been on the side of independent India. Only,
India has repeatedly failed to take the historical
bull by the horns. Modi’s “five Cs” were a reitera-
ARTICLE 370 AND ALL THAT
Inderjit Badhwar
I
TheBJPhas
blownhotand
coldontheissue
ofabolishing
Articles370and
35A.PMModiin
hisfirsttermhad
putthese
issuesona
backburner.But
hisgovernmentin
itssecondterm
hasmadethe
abolitionofthese
Articlesapriority.
ButKashmir’s
embracewillnot
beachieved
throughsuch
simplisticand
emotionally-driven
measures.
Letter from the Editor

5. tion of that often-used but least understood term
“Kashmiriyat”. It does not mean a break-away
from the Indian Union. It means “dignity”. This
dignity, PDP co-founder and former deputy chief
minister Muzaffar Hussain Baig tells me, most
Kashmiris, deep within their hearts, would like to
have within the Indian Union. But India, instead
of accepting their embraces, pushes them away
into the arms of others through denying them due
process, playing toppling games and rigging the
democratic process. And herein lies the irony of
this vexatious problem.
D
own the ages, the original people of Kash-
mir have been the victims of foreign mas-
ters—Afghan, Mughal, Sikh, Dogra rulers.
The crowning indignity was the sale of the whole
of the region for `50 lakh, under the Treaty of
Amritsar in 1846, by the Paramount Power, Great
Britain, to Maharaja Gulab Singh because of his
loyalty to England. The next 100 years saw
Dogra rule, autocratic and repressive, over the
Kashmiri people, which they bitterly resented and
finally organised the Muslim Conference (later
National Conference) as a political organisation
to gain azadi from monarchic absolutism and
establish democracy. Their tallest leader was
Sheikh Abdullah.
Mahatma Gandhi called the ceding of the
Kashmir region to Maharaja Gulab Singh a “sale
deed”. He made this observation in August 1947,
just two weeks before India became an independ-
ent country. When much of India was burning and
killing with pre-Partition communal hatred,
Kashmir, still an independent country which had
joined neither India nor Pakistan, was calm.
Gandhi, on his first Srinagar visit, called Kashmir
“a ray of hope”. The only friction in Kashmir was
then between the Kashmir freedom movement
and the monarchy backed by the British. The
movement, called “Quit Kashmir”, was spearhead-
ed by Abdullah’s National Conference which had
rejected the Muslim League and Jinnah’s two-
nation theory and was pledged to Hindu-Muslim
unity. The mass agitation was directed at replacing
the monarchy with a constitutional republic. And
it had made common cause with India’s independ-
ence movement.
Did you know? Stone-pelting by agitators did
not start with the Kashmiri youth in this century.
In 1944, when Jinnah visited Kashmir to try and
garner support for the Muslim League, his sup-
porters, protected by the state police, were pelted
with stones showered on them in Baramulla by
National Conference agitators who had also pre-
pared a garland of shoes to put around the neck of
Jinnah. The Muslim-led secular forces of Kashmir,
the most powerful mass-based group in the Valley,
were stone-pelting the future leader of Muslim-
majority Islamic state Pakistan!
By August 1947, India’s 561 independent states
had acceded to the Indian Union. Maharaja Hari
| INDIA LEGAL | July 15, 2019 5
BUILDING BRIDGES
Prime Minister
Narendra Modi
interacting with a
group of youth and
children from J&K in
New Delhi in
February 2017
UNI

6. Singh had not yet made up his mind. But he was
tilting towards Pakistan or independence. This
was largely because the leaders of the Indian inde-
pendence movement had backed Abdullah’s “Quit
India” national movement directed against the
Maharaja and his British backers.
Pakistan’s military attempt to annex Kashmir
in October 1947 was foiled by the Indian Army
after the Maharaja, who had fled his country for
India, and Sheikh Abdullah, who had been
released from jail and appointed Martial Law
Administrator to organise the resistance against
Pakistani invaders, agreed to sign the Instrument
to accede to India. The Indian Union would
henceforth be responsible for Kashmir’s defence,
communications and foreign policy. Kashmir
would retain its internal autonomy and its people
would decide their ultimate fate through balloting
under Indian and UN auspices after all Pakistani
troops and invaders were withdrawn.
Said Abdullah, with sarcasm in his speech to
the UN in February 1948: “Today Pakistan has
become the champion of our liberty. I know very
well that in 1946, when I raised the cry of ‘Quit
Kashmir’, the leader of the Pakistan Government,
who is the Governor-General now, Mr Moham-
mad Ali Jinnah, opposed my Government, declar-
ing that this movement was a movement of a few
renegades and that Muslims as such had nothing
to do with the movement.
“Why was that so? It was because I and my
organisation never believed in the formula that
Muslims and Hindus form separate nations. We
do not believe in the two-nation theory, nor in
communal hatred or communalism itself. We
believed that religion had no place in politics.
Therefore, when we launched our movement of
‘Quit Kashmir’ it was not only Muslims who suf-
fered, but our Hindu and Sikh comrades as well.”
Despite the UN resolutions, Pakistan refused to
withdraw from the occupied areas. No self-deter-
mination exercise could be held and the relation-
ship with Kashmir, through a special status provi-
sion called Article 370, was enshrined in the
Indian Constitution. The provision was later
accepted by Kashmir’s Constituent Assembly
which converted the once princely state into a
democratic republic within the Indian Union.
I
n his opening remarks to the Kashmir
Constituent Assembly, Abdullah reiterated his
state’s special relations with India: “You are
no doubt aware the scope of our present constitu-
tional ties with India, we are proud to have our
bonds with India, the goodwill of whose people
and Government are available to us in unstinted
and abundant measure. The Constitution of India
has provided for a federal Union and in the distri-
bution of sovereign power has treated us different-
ly from other constituent units. With the excep-
tion of the items grouped under Defence, Foreign
Affairs and Communication in the Instrument of
Accession, we have complete freedom to frame our
Constitution in the manner we like.
“In order to live and prosper as good partners in
a common endeavour for the advancement of our
peoples, I would advise that, while safeguarding
our autonomy to the fullest extent so as to enable
us to have the liberty to build our country accord-
ing to the best tradition and genius of our people,
we may also by suitable constitutional arrange-
ments with the Union establish our right to seek
and compel federal co-operation and assistance in
this great task as well as offer our fullest co-opera-
tion and assistance to the (Indian) Union.”
Article 35A reinforced Article 370. It was a
confidence-building measure with the people of
Kashmir where a plebiscite was no longer an
option. As explained by the leading independent
website Jammu-Kashmir.com, the idea that the
residents of J&K needed to be protected was not
new but had been put into effect by the Dogra
Maharaja of Kashmir, who promulgated the 1927
Hereditary State Subject Order.
This distinguished between state and non-state
Letter from the Editor
6 July 15, 2019
LEGITIMATE
CONCERN
A protest in
Srinagar by traders
and civil society
to protect Article
35A in Jammu
and Kashmir
UNI

7. subjects, forbidding the latter from owning land in
the state. This separation of powers and a large
degree of autonomy for the state was encoded in
Article 370 of the Constitution of India and the
subsequent Constitutional Order of 1950. The
1954 Presidential order (35A) superseded the 1950
Order and this was accepted by Bakshi Ghulam
Mohammad of the Jammu and Kashmir National
Conference who was the prime minister of Jammu
and Kashmir at that time.
On November 17, 1956, the state legislature
defined a Permanent Resident (PR) of the state as
a person who was a state subject on May 14, 1954,
or who had been a resident of the state for 10
years, and had “lawfully acquired immovable
property in the state”.
Till recently, several individuals and one NGO
have challenged its legal validity. Others have
called it discriminatory as thousands of residents
of J&K have been denied basic rights such as own-
ing property and sending their children to state
schools because of the provisions of Article 35A.
I
ndia’s first prime minister, Jawaharlal Nehru,
has pointed out that the former maharaja of
the state had stuck to this, that nobody from
outside should acquire land there. And that con-
tinues. “So the present Government of Kashmir is
very anxious to preserve that right because they
are afraid, and I think rightly afraid, that Kashmir
would be overrun by people whose sole qualifica-
tion might be the possession of too much money
and nothing else, who might buy up, and get the
delectable places,” he said.
That, in short, was the genesis of Article 35A; it
was a law meant to protect the people of the state
from a huge influx of outsiders. As a result, the
state’s constitution, framed in 1956, retained the
erstwhile maharaja’s definition of permanent resi-
dents, that is: “All persons born or settled within
the state before 1911 or after having lawfully
acquired immovable property resident in the state
for not less than ten years prior to that.”
Small wonder that the Modi government’s pro-
nouncement on Article 35A during its first term
drew an enthusiastic response from former Chief
Minister Omar Abdullah, the grandson of Sheikh
Abdullah, the founder and tallest democratic
leader of Kashmir. Omar tweeted: “This is a very
important statement from the Union Home
Minister. His assurance will go a long way towards
silencing the noises against 35A.”
Why we lost Kashmir’s embrace after such an
auspicious beginning sealed with blood and strug-
gle is another story. Searching once again for that
embrace and completely de-legitimising the Pak-
istani claim is one of the greatest leadership chal-
lenges of modern India.
And it will not be achieved through simplistic
and emotionally-driven measures such as the abo-
lition of Articles 370 and 35A.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | July 15, 2019 7
RELENTLESS FIGHT
(L-R) Security forces gearing up for an encounter
with militants in Pulwama in May this year;
Jawaharlal Nehru with Sheikh Abdullah
Article35A
reinforcedArticle
370andwasa
confidence-build-
ingmeasurewith
thepeopleof
Kashmir.Theidea
thattheresidents
ofJ&Kneededto
beprotectedhad
beenputinto
effectbythe
DograMaharaja
ofKashmir.
UNI
kashmirreader.com

8. With the disposal of petitions
challenging the Kashi corridor
project, the apex court has cleared
the way for fruition of the PM’s
dream and for Varanasi to get a
picture postcard image
ContentsVOLUME XII ISSUE35
JULY15,2019
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LEAD
12The Drop of Life
As India grapples with a severe water crisis and a deficient monsoon, conserving this precious
resource is the only way out. But for that, the centre and states have to be on the same page
22Rite of Passage
SUPREMECOURT
8 July 15, 2019
LEGALEYE
18Divisive Idea
The Modi government’s revival of the All-India Judicial Service proposal has raised eyebrows
as critics feel it could play havoc with federalism, a basic feature of the Constitution

9. REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design:
ANTHONY LAWRENCE
Ringside .........................10
Courts.............................11
Media Watch ..................29
International Briefs..........49
Satire ..............................50
Threat to Mangroves 40
Though the environmental clearance of the bullet train project lists stringent
conditions for the protection of mangroves, the fact is that there is no land
available for their reforestation
Gehlot’s Soft
Hindutva
The Congress government in Rajasthan has
filed a charge sheet against lynching victim
Pehlu Khan. Will this reckless gamble pay
dividends in two crucial bypolls?
46
Not a Freeway
While interpreting the Bihar Prohibition and Excise Act, the apex
court held that occupants of a private car on a public road cannot
claim a right to privacy. Will it curtail this right in all its forms?
24
Terms of Engagement
The Chhattisgarh government’s policy seems confused as it mulls
curtailing the rights and facilities extended to surrendering Naxals and
letting criminal cases against them remain
COLUMN
44
Retributive Action
The centre’s idea of sending home commanders in whose area
terrorist attacks took place is retrograde, bad in law and will crush
morale. It won’t stop a suicide bomber, only good intelligence will
26 Controversy’s
Child
Even though jailed Dera Sacha Sauda
chief Gurmeet Ram Rahim withdrew his
parole application, he faced strong
public criticism and put the Haryana
government in a quandary
| INDIA LEGAL | July 15, 2019 9
MYSPACE
Pendency of bills in the Upper House is a cause for concern. The
government should be mandated to reconsider bills which lapse in
the Rajya Sabha due to dissolution of the Lok Sabha
36
Delayed Deliveries
ACTS&BILLS
30
33
The chief justice of Pakistan
has brought in structural and
systemic changes in its
judicial system through
model courts
Silent
Revolution
Lure of the Lucre
Even as the Medical Council Amendment Bill seeks to ensure
transparency in medical education, the fact is private hospitals are
getting highly commercialised and patient-doctor trust has eroded
HEALTH
Stirrings from
the Valley
In a shocking incident, the editor of an Urdu
daily, Ghulam Jeelani Qadri, was arrested in
J&K as he didn’t respond to a warrant issued
on June 22, 1993. It was left to the judiciary to
order his bail
38
MEDIA
42
GLOBALTRENDS
STATES

10. 10 July 15, 2019
““I am not sorry and
I don’t regret...when
I reached there wo-
men were being
pulled, in police pro-
tection...I had to
pick up the bat to
shoo them away....”
—Indore MLA Akash
Vijaywargia on ass-
aulting an Indore
Municipal Corpo-
ration official
“The factory (MCF)
is producing more
than its capacity....
But now why the
future of the work-
ers is in limbo?...why
the government
wants to resort to
corporatization.”
—Congress chairper-
son Sonia Gandhi in
Parliament, on the
railway ministry’s
proposal to privatise
its production units
“I have been impa-
tient, sometimes
even rude... Many of
my orders have been
too cryptic. I request
the bar to appreciate
that since pendency
is heavy, I was more
bent on disposals...
could not afford to
write long orders.”
—Madras High Court
judge GR Swamina-
than’s self-appraisal
report to the Bar
“Tamil people had
been helping other
States whenever
they faced trouble....
Would it be possible
for Bedi to continue
in her position if she
had made...remarks
about people of Bi-
har...UP...Gujarat?”
—DMK President
Stalin on Puduche-
rry L-G Kiran Bedi
blaming Tamils for
the water crisis in TN
“Without even both-
ering that there are
women, they hit us
though we pleaded
not to be hit. Even
animals are not
thrashed like this.”
—C Anita, the Telan-
gana forest depart-
ment official who
was assaulted by a
group that included
TRS MLA Koneru
Krishna Rao during
a plantation drive
“...have played twice
the number of
matches you have
played and...still
playing...have heard
enough of your ver-
bal diarrhoea.”
—India player
Ravindra Jadeja on
Sanjay Manjrekar’s
commentary ruling
him out of the
50-over format,
on Twitter
“This field indeed
brought a lot of love,
support, and app-
lause my way, but
what it also did was
to lead me to a path
of ignorance....my
relationship with
my religion was
threatened.”
—Dangal actor Zaira
Wasim on her deci-
sion to quit acting,
on Facebook
“...I have no hatred or anger towards the BJP but
every living cell in my body...resists their idea of
India.... The attack on our...Constitution...is
designed to destroy the fabric of our nation….the
capture of our country’s institutional structure, is
now complete...elections will go from being a deter-
minant of India’s future to a mere ritual....”
—Congress President Rahul Gandhi in his resignation letter
Anthony Lawrence
RINGSIDE
G21 Summit
Ivanka
Trump

11. Courts
| INDIA LEGAL | July 15, 2019 11
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
ICJ to rule on
Kulbhushan Jadhav
Reversing a 2011 Gujarat High Court
decision, the Supreme Court convict-
ed 12 persons for killing former Gujarat
Home Minister Haren Pandya and sen-
tenced them to life imprisonment. A bench
comprising Justices Arun Mishra and
Vineet Saran set aside the High Court
judgment and restored the trial court ver-
dict. In June 2007, a special court had
convicted the 12 accused for Pandya’s
murder. On appeal, the Gujarat High Court
reversed the verdict and acquitted all of
them. The CBI and the Gujarat government
then appealed before the Supreme Court.
Pandya was shot dead on March 26,
2003, in Ahmedabad while he was out on
a morning walk.
12 convicted in Haren
Pandya murder case
ASupreme Court bench of Justices
Ashok Bhushan and KM Joseph
upheld the rights of tribal communities in
Meghalaya to grant leases for coal mining
on their land, subject to the power of the
State “to check, control and prohibit coal
mining operations”. The bench was hear-
ing a clutch of appeals challenging a ban
imposed by the National Green Tribunal
(NGT) on April 17, 2014, on mining in
Meghalaya. It clarified that this ban will
operate only in cases of illegal mining,
which appear to be quite rampant. The
bench also directed the state government
to deposit the `100 crore fine imposed on
it by the NGT for failing to curb illegal coal
mining with the Central Pollution Control
Board. It further slammed the government
over the December 2018 mining tragedy
in which 15 people were killed in an illegal
coal mine in East Jaintia Hills district.
“(This) proves beyond any shade of doubt
that the order banning mining in…Megha-
laya was neither enforced, nor were seri-
ous endeavours taken to stop pollution,”
the bench said.
The judgments of the
apex court will soon be
available in six regional
languages—Hindi, Telugu,
Assamese, Kannada, Mar-
athi and Odia. The transla-
tions will be posted on the
apex court’s website from
July-end onwards. Chief
Justice of India Ranjan
Gogoi has given formal
clearance to an indige-
nously developed software
for this purpose. The six
languages have been cho-
sen on the basis of the vol-
ume of appeals that origi-
nate from the High Courts
of the states where these
languages are spoken. To
start with, matters relating
to individual litigants in civil
disputes, criminal matters,
landlord-tenant issues and
matrimonial discord will be
undertaken for regional
language translations.
Regional language push for SC judgments
Salman gets warning
in poaching case
SC allows coal mining in Meghalaya
Bollywood superstar Salman Khan
was warned by a district and ses-
sions court in Jodhpur that his bail
would be cancelled if he fails to appear
at the next hearing on September 27.
Khan’s counsel, HM Saraswat, had
moved an exemption application, stat-
ing that the actor cannot appear in
court because of his shooting sched-
ule. After the court’s warning, Saras-
wat said that Khan will be present on
the next date of hearing. In April 2018,
a trial court had convicted
Khan for killing two black-
buck and sentenced him
to five years’ imprison-
ment, while acquitting
the other actors
accused in
the case.
The International Court of Justice
(ICJ) will give its verdict on India’s
appeal against the death sentence
awarded by a Pakistan military court
to former Indian Navy officer Kulbhu-
shan Jadhav, on July 17. “A public sit-
ting will take place at 3 pm (6.30 pm
IST) at the Peace Palace in The Hague,
during which Judge Abdulqawi Ahmed
Yusuf, President of the Court, will read
the Court’s decision,” said the ICJ. In
April 2017, Jadhav was sen-
tenced to death in Pakistan
on charges of espionage
and terrorism. On May 8,
2017, India filed an app-
eal before the ICJ.

12. 12 July 15, 2019
OU only know the value
of water when the well is
dry, goes an old adage.
And India is realising
this the hard way. As the
monsoon got delayed, a
water crisis erupted in many parts, espe-
cially Chennai where long queues of
people fought over this precious re-
source. Concerns about water availabili-
ty for agriculture and domestic uses also
increased as water tables got depleted
all over India. Truly, the time for water
wars had begun.
It is a wake-up call for India. It has
realised that it will be sentenced to
hydrological poverty if urgent steps are
not taken. In his first Mann Ki Baat
address after being re-elected, Prime
Minister Narendra Modi called for a
national effort to augment and protect
India’s water resources. He said that
India was tapping just eight percent of
the rainfall it received and every drop of
Drop of LifeAsIndiagrappleswithaseverewatershortageandadeficientmonsoon,conservingthisprecious
resourceistheonlywayout.Butforthat,thecentreandstateshavetobeonthesamepage
By Ramesh Menon
Y Close running taps.
Put up notices in public conven-
iences on the need to save water.
Repair dripping taps.
Install water-efficient flushes that
have sensors to control water.
Close the tap as you shave, brush
Therearewaysto
conservewater
Lead/ Water Crisis

13. | INDIA LEGAL | July 15, 2019 13
water needed to be conserved. He want-
ed a database created on innovative
methods to conserve water. This chal-
lenge can only be met by concerted and
joint action, he said.
But this cannot be done alone by the
central government. SK Sarkar, former
secretary, ministry of water resources,
told India Legal: “Water is a state sub-
ject and the central role is limited. Any
national programme will have an impact
only if all the states work with the cen-
tre. At the moment, there is no legal
compulsion on the part of the states to
undertake water management. This has
to change. There needs to be a common
central approach towards conserving
water. If the new Jal Shakti Ministry has
to be effective, state bodies will have to
be restructured. The National Water
Bill, 2016, has been pending in Parlia-
ment due to lack of consent from many
states who fear that they will lose their
power over water.”
There are other ramifications. Water
takes a lot of energy, time and money to
extract, transport and filter over long
distances. This ends up consuming non-
renewable fossil fuels and leads to dan-
gerous by-products like carbon dioxide
and then climate change.
Surprisingly, despite numerous laws
in various states and cities that call for
rainwater harvesting, strict implementa-
tion is lacking. According to government
sources, there is lack of commitment.
In India, individual landowners have
overwhelming control over
GOING DRY
People fill plastic pots from a well in Chennai
which is experiencing severe water crisis; a
restaurant in the city remains shut due to
water shortage
your teeth or soap/rinse clothes.
Ensure overflow valves in overhead
tanks are working.
Don’t use too much detergent
for clothes.
Operate automatic washing machines
only when fully loaded.
Don’t use bath tubs.
Don’t use a hose to wash cars or
the floor.
Water used to wash cereals, vegeta-
bles and fruits can be used to
water plants.
Encourage rooftop water harvesting in
your colony/bungalow.
Become part of active water conserva-
tion programmes.
Minimise grass lawns; don’t overwater
your lawns.
Use drip irrigation sprinklers for
large gardens.
Remove weeds as they soak the water
that plants should get.
Drink boiled water instead of using
the RO water purifiers as they waste a
lot of water to give you a glass of drink-
ing water.
UNI
UNI

14. Corporation plans to cut more than
2,000 trees in Aarey Colony, one of the
few green lungs left in Mumbai, to con-
struct a car shed for the metro project.
What environmental effect will this have
and how long will it be before the cut
trees re-grow?
On top of that is the sorry state of
water storage. On July 3, an earthen
dam in Ratnagiri district of Maharash-
tra was breached and water washed
away homes, killing 14. Villages had
complained of leakages for over two
years, but it was unheeded. The water
resources department in the state has
been facing a funds crunch for mainte-
nance and repairs of over 3,000 dams.
Only about two percent of the capital
costs of dams was allocated for repairs.
Hopefully, the new water bill on the
anvil will look at these anachronisms.
The Groundwater (Sustainable
Management) Bill, 2017, recognises that
groundwater is a common resource and
needs to be protected. Sarkar, who is at
present a Distinguished Fellow and
Senior Director, Natural Resources and
Climate Programme at The Energy and
Resources Institute, said: “The state
groundwater. This makes any law on
groundwater redundant and ineffective.
W
hile groundwater is the pri-
mary source of water for
domestic use and irrigation,
the focus of planners has largely been on
surface water. It is imperative that this
changes as water tables all over India
are depleting. It is generally felt that
people own groundwater resources. If
you have a well, you naturally feel you
own the water in it. More importantly,
there was no punishment for over-
exploiting groundwater. Mechanical
pumping and free water for farmers in
various states have led to overuse and
wastage, affecting natural recharge sys-
tems. Even laws were drafted to give
states some control on regulation, but
nothing was done to stem the unlimited
control that landowners had over
groundwater.
Short-sighted schemes have also
been floated despite the water crisis. For
example, the Brihanmumbai Municipal
14 July 15, 2019
“Waterisastatesubjectandthecentral
roleislimited.Anynationalprogramme
willhaveanimpactonlyifallthestates
workwiththecentre.Atthemoment,
thereisnolegalcompulsiononstatesto
undertakewatermanagement.”
—SKSarkar,formersecretary,ministryof
waterresources
COURTING DISASTER
With water tables dropping rapidly, the
country is staring at hydrological poverty
CapeTown
ShowstheWay
This South African port city has
reduced water consumption in
ingenious ways. Indian cities would
do well to follow its example.
E
ven as various cities in India
grapple with a severe water cri-
sis due to delayed monsoons,
they could take a leaf out of South
Africa’s book. Or, more specifically,
Cape Town. The way it has tackled this
problem suggests what people must
do to avoid a Zero Water situation. Two
years ago, consumption there dropped
60 percent as people listened to con-
stant exhortations to shower shorter,
drink less and flush less.
Signs went up urging people that “if
is yellow, let it mellow” to reduce toilet
flushing. Public bathrooms in offices
and shops removed faucets and
replaced soap dispensers with hand
sanitisers. Car washes—if you could
Lead/ Water Crisis
UNI

15. | INDIA LEGAL | July 15, 2019 15
find one open—switched to using spray
or cleaning fluid. The city set limits on
water used per person per day and heav-
ily surcharged excessive use. People of
all races found themselves queuing for
public water as the drought lengthened.
While the bottled drinking water busi-
ness boomed, larger grocery companies
did not price gouge, though smaller
shops did. Used bath water became
the choice for plant watering and toilet
flushing. Homeowners and businesses
that could afford counter measures
installed elaborate water tank systems to
catch runoff from roofs if and when it
rained. Hotels removed bathtub drain
stoppers and suggested guests take
three-minute showers.
The cause of the problem was a com-
bination of population growth through
migration as well as climate change
issues. South Africa’s political climate
brightened in 1994 when a new constitu-
tion brought democracy and Nelson
Mandela to the presidency. It also
brought people to Cape Town, doubling
the population between 1994 and 2017
to just over four million people.
Almost no water reservoirs were built
because annual winter rains had general-
ly supplied enough water. In the green
and vibrant Western Cape, sufficient
water for agriculture and humans was
assumed. But 2017 was the driest year
since 1933, with local scientists saying
that a drought of this severity would sta-
tistically occur approximately once every
300 years. As water levels fell, the fear
level rose along with incessant messages
to conserve. From 1.2 billion litres a day
before the crisis in early 2016, consump-
tion dropped to 742 million litres a day by
mid-2017 and declined as Zero Day
approached to about 550 million litres a
day in March 2018. Finally, the onset of
winter rains between April and July 2018
helped bring dam levels to 70 percent
capacity. At the low point, reservoirs were
at 13 percent capacity and could be mis-
taken for large mud puddles.
It has been tough on agriculture
because wine and fruit tree farmers have
cut their water use significantly, some-
times by not growing anything. Crop
losses were estimated at a billion dollars
in 2017.
Hardships, yes, and a new apprecia-
tion for what happens when essentials
start to dwindle. Will the attitude last?
—Kenneth Tiven
DESPERATE MEASURE People collecting water from a spring in Newlands, Cape Town
government must entrust power to local
bodies if the national mission to save
water has to work. Article 243 (G) of the
Constitution says that water manage-
ment has to be delegated to local bodies
and self-government.”
I
In areas where groundwater levels
are more than eight metres below
the surface in Delhi and National
Capital Territory, the Central Ground
Water Authority has directed that roof-
top rainwater harvesting systems be
installed. This has to be executed by
group housing societies, institutions,
schools, hotels, industrial establish-
ments and farmhouses.
The Ministry of Urban Development
has made modifications to building bye-
laws, making it mandatory. It requires
rainwater to be harvested in all new
buildings on plots of 100 sq m and
above if sanction has to be given.
Various states are now implementing
some measures to save water. In Punjab,
the Central Ground Water Board, the
Punjab Irrigation Department and the
Agriculture Department have sounded
warnings about the rapidly dropping
water table. They are finally being heard
as Punjab’s Local Bodies Department
has restricted the use of water and even
slapped penalties on violators. Users
cannot use the main supply line to water
lawns and wash cars. First-time viola-
tors will have to shell out `5,000, sec-
ond-time violators `2,000 and third-
time violators `5,000 and their connec-
tions will be disconnected.
Tamil Nadu has made rainwater har-
vesting mandatory for all new buildings.
Water and sewer connections will be
given only after rainwater harvesting
plans are completed. In Puducherry, the
PWD has been constructing these struc-
tures on the rooftops of all government
buildings for the last 16 years. In Kerala,
all new buildings will have to have rain-
water harvesting structures. However, if
the area has water-logging problems,
the rule will not apply.
Under the Madhya Pradesh Bhumi
Vikas Rules, 1984, rooftop rainwater
harvesting has been enforced in munici-
palities for buildings larger than 250 sq
m. The state has offered a six percent
rebate on property tax for those imple-
menting rainwater harvesting. In Rajas-
than, rainwater harvesting is mandatory
for all public establishments and proper-
ties on plots larger than 500 sq m, other-
wise water supply is cut. The state is also
working on a draft bill that proposes

16. 16 July 15, 2019
tries and bus stands.
In Daman and Diu, the PWD has
been instructed to ensure rooftop rain-
water harvesting structures. In Goa, the
PWD has been asked to construct rain-
water harvesting structures for both
existing and upcoming government
buildings. In Lakshadweep, rainwater
harvesting structures are being con-
structed on different islands.
In Meghalaya, the government has
instructed different departments to pro-
vide funds from their annual plans for
rooftop rainwater harvesting structures
in government buildings. While in
Nagaland rooftop rainwater harvesting
is compulsory for all new government
buildings, in Arunachal Pradesh build-
ing byelaws are being framed to make it
mandatory for government buildings.
Under the West Bengal Municipal
(Building) Rules, 2007, installation of
rainwater harvesting systems is manda-
tory. In Andaman and Nicobar islands,
building byelaws are being amended to
incorporate mandatory provision for
these systems. Odisha is contemplating
the formulation of a comprehensive
water law.
Various cities too have started their
own measures to conserve water. Benga-
Singh, Haryana’s minister for public
works, said that the state wants to bring
in a law against wasting water. It pro-
poses a fine of `10,000 or a three-
month jail term. The Union Territory of
Chandigarh has made it mandatory for
all new buildings to implement rainwa-
ter harvesting irrespective of the size of
the plot or roof.
I
n Himachal Pradesh, installation
of rainwater harvesting systems is
mandatory for all buildings con-
structed in urban areas. It is also
mandatory for schools, government
buildings, rest houses, upcoming indus-
cash penalties and jail for misuse of
water. In Gujarat, developers of build-
ings with an area between 500 sq m and
1,500 sq m will have to install rainwater
harvesting structures. They will have to
provide percolation wells with a rainwa-
ter harvesting system. It is also manda-
tory for all government buildings.
In Haryana, rainwater harvesting has
been made mandatory in all new build-
ings by the Haryana Urban Develop-
ment Authority. Drilling of tube wells
has been banned in certain areas. Viola-
tors would be prosecuted under Section
180 and 181 of the Haryana Municipal
Corporation Act, 1994. Rao Narbir
W
ater shortage and manage-
ment are now becoming a
worldwide issue. In some
African countries, the per capita avail-
ability is as low as 47 litres a day, while
in the US it may be as high as 578
litres. But no country today can ignore
the impending water crisis.
It is amazing what the city-state of
Singapore, which does not have its own
water source, has done with rainwater
harvesting. Interestingly, 20 years ago,
it was illegal to use rainwater for per-
sonal use there. The rationale was that
rainwater was a common resource and
so its collection, storage and re-use
would be done only by the Public
Utilities Board. But now, individual col-
lection and use has been permitted.
Singapore heavily relies on treated
wastewater. It is passed through numer-
ous stages like membrane-based filter-
ing, reverse osmosis and ultraviolet dis-
infection to make it fit enough for drink-
ing and cooking. The quality of this
wastewater exceeds the drinking water
standards of the United States’ Envi-
ronmental Protection Agency. This treat-
ed wastewater is today meeting around
40 percent of Singapore’s water
demand and is projected to meet 55
percent of the demand by 2060.
Qatar has stiff fines going up to
QR 20,000 for wasting water. Residents
cannot use a water hose in gardens
or to wash cars. It is also against the
law to neglect damaged pipes causing
leakage. Qatar uses power to run
huge desalination plants to provide
drinking water.
According to studies of the National
Academics of Sciences, Washington,
Globalcrisis
Lead/ Water Crisis
rainwaterharvesting.wordpress.com/balasubramaniam
STORAGE SYSTEM
A rainwater harvesting system at a house in
Bengaluru. Anyone owning a building with an
area of 1,200 sq ft must install one

17. | INDIA LEGAL | July 15, 2019 17
luru, which has seen an explosion in real
estate and population in the last few
decades, has made it mandatory for any-
one owning 2,400 sq ft of land or a
building with an area of more than
1,200 sq ft to have rainwater harvesting.
In Mumbai, rainwater harvesting is
mandatory for all buildings constructed
on plots more than 1,000 sq m.
The Surat Municipal Corporation too
has made rainwater harvesting manda-
tory for new buildings with a plot size of
4,000 sq m or more. In Kanpur, rainwa-
ter harvesting has been made mandato-
ry in all new buildings with an area of
500 sq m or more.
In Nagpur, all layouts of open spaces,
amenity spaces of housing societies and
new constructions on an area of 300
sq m and above will need to have rain-
water harvesting structures such as an
underground storage tank or percola-
tion pits. If these rules are violated, it
would attract a fine of `1,000 per year
per 100 sq m of the built-up area.
In Indore and Gwalior, rainwater
harvesting is mandatory in all new
buildings with an area of 250 sq m or
more. In the latter city, the engineer-in-
charge has been authorised to impose
a penalty of `7,000 in case of non-com-
pliance. In Hyderabad also, it is manda-
tory in all new buildings with an area of
300 sq m or more.
In Gurugram, those wasting treated
water for gardening or to wash cars will
be penalised. Even Indian cricket cap-
tain Virat Kohli was not spared as his
domestic help was fined by the munici-
pal corporation of Gurugram for wash-
ing a luxury hatchback outside his resi-
dence in DLF Phase-1 in early June.
Individuals will be fined `1,000 and
institutions `2,000. Repeat offenders
will be charged more. The Mussoorie
Dehradun Development Authority has
now included the installation of rainwa-
ter harvesting systems.
Laws are good only if implemented.
Till now, there was only a knee-jerk
approach to water conservation. India
is entering a stage where water issues
will not only dominate, but dictate
events. The demand for water is going
up every day, but rainfall, as this year
has shown, has been erratic and climate
change will ensure that it will be like
that every year. Droughts have been
recurring too.
In the end, only a long-term action
plan with proactive steps will work.
water scarcity in the US will intensify as
the population and the economy grow.
Learning how to deal with it would be a
continuing challenge.
In Germany, there are strict regula-
tions restricting the use of treated water
for flushing toilets and landscape gar-
dens. Germany has innovatively trapped
rainwater flowing on streets by directing
it into underground storage tanks. Most
cities in Germany charge residents a
stormwater drainage fee. But the fee
is waived if rainwater is retained or
recharged in the soil. Grants and subsi-
dies are given to encourage rainwater
harvesting installations.
Fourteen of the 33 countries that will
be water-stressed in the next 20 years
are in the Middle East. Saudi Arabia
plans to import its grain needs to
save water.
American intelligence has predicted
that North African and Middle East
countries might suffer instability be-
cause of a water crisis. In the coming
years, south-western US and China’s
Ningxia province could witness an
increase in water stress by 40 to 70 per-
cent. Water supply in Botswana and
Namibia is limited and there are fears of
it worsening in the years to come.
WATER
FOR ALL
A water
treatment plant
in Singapore
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Thewaterstoragesituationisdismalin
India.Recently,anearthendamin
Maharashtrawasbreachedandwater
washedawayhomesandkilledpeople
duetoinactiononleakagecomplaints.
commons.wikimedia.org

18. Legal Eye/ All-India Judicial Service
18 July 15, 2019
HE resounding mandate
received by the Narendra
Modi government in the
Lok Sabha elections has
made many wonder whe-
ther it could be explained
in terms of the presidential-style cam-
paign of the prime minister. If it is in-
deed the result of such a campaign, one
of the interesting consequences for gov-
ernance would be the centre’s determi-
nation to push through long-pending
reforms despite a lack of consensus
among the stakeholders.
One such reform is Law Minister
Ravi Shankar Prasad’s announcement
that the centre would write to high
courts and state governments seeking
their opinion on the creation of an All-
India Judicial Service (AIJS). This was
prioritised by the new government soon
after returning to power.
The proposal to constitute such a
service has always remained on paper
because of resistance from powerful lob-
bies. These lobbies include high courts
A Hidden Motive?
TheModigovernment’srevivalofthisproposalhasraisedeyebrowsascriticsfeelitcould
playhavocwithfederalism,abasicfeatureoftheConstitution
By Venkatasubramanian
T
SEVERELY SHORT-STAFFED
According to a study, there are currently
5,133 posts vacant in subordinate courts
Anil Shakya

19. | INDIA LEGAL | July 15, 2019 19
and state governments who apprehend
that it could play havoc with federalism,
a basic feature of the Constitution. If
these two (AIJS and federalism) are
inconsistent, the defenders of AIJS ask,
why does the Constitution provide for
AIJS? Article 312 (1) says if the Rajya
Sabha has declared by a resolution, sup-
ported by not less than two-thirds of the
members present and voting, that it is
necessary in the national interest to do
so, Parliament may by law provide for
the creation of one or more all-India
services and regulate the recruitment
and conditions of those appointed to it.
Article 312 (2) says services known
at the commencement of this Consti-
tution as the Indian Administrative
Service and the Indian Police Service
shall be deemed to be services created
by Parliament under this Article. Other
all-India services too have been created,
but they do not face the kind of criticism
which the proposal to constitute
AIJS does.
A
rticle 312(3) says the all-India
judicial service referred to in
Clause (1) shall not include any
post inferior to that of a district judge
as defined in Article 236. As High Court
and Supreme Court judges are selected
through the collegium mechanism
comprising judges from both courts,
AIJS applies to only the selection of dis-
trict judges.
But the provision relating to AIJS
was inserted in the Constitution through
the infamous 42nd Amendment during
Emergency. While many of the dracon-
ian provisions of this amendment curb-
ing the fundamental rights of citizens
were subsequently reversed by the 44th
Amendment during the later Janata
Party regime, the amendment to Article
312 envisaging the creation of AIJS sur-
vived because it was felt it was innocu-
ous. Besides, Entry 70 of the Union List
provides Parliament the exclusive autho-
rity to enact a law creating Union Public
Services, all-India Services and Union
Public Service Commission. As all-India
services include AIJS within its ambit,
Parliament’s competence to legislate on
the matter has never been in doubt.
But the itch to centralise, noticeable
among the powers-that-be during
Emergency and now, is what causes con-
cern among critics of the proposal,
although it was first mooted by the Law
Commission in the 1950s.
In December last year, Niti Aayog
released a vision document, titled
“Strategy for New India @ 75” which
proposed a slew of judicial reforms,
including AIJS. But it disappointed
observers because it sought to ignore
complex facets of the debate. Niti Aayog
also proposed to recruit prosecutors and
legal advisers under AIJS, which goes
beyond the mandate of the Constitution.
The first and foremost question
which arises is whether AIJS could help
fill up the vacancies in the subordinate
judiciary in time. The idea of recruiting
district judges through an all-India
examination and allocating them to
each state along the lines of other all-
India services does appear attractive on
paper. After all, it promises transparen-
cy and efficiency, besides a possibility
that the best legal talent would be
tempted to join as district judges.
The late Prof NR Madhava Menon,
the doyen of legal education in the
country, wrote in January in India
Legal: “Given the regular supply of tal-
ented law graduates from National Law
Schools and similarly placed institu-
tions, there are now in the profession,
advocates with seven to 10 years of
practice experience who would be
inclined to join the district judiciary as
they have a chance to get promoted to
the higher judiciary in reasonable time.
They don’t have to retire as district
judges if they show good performance at
the district level. The job profile and sta-
tus in the judiciary are certainly more
attractive than what is on offer in other
central services.”
He added: “If the judicial academies
give proper training and High Courts
provide the freedom within identified
parameters to innovate at work, district
judges’ efficiency will increase consider-
ably and this would reduce appeals aris-
ing from their decisions. For motivated
young men and women, job satisfaction
and personal reputation are more imp-
ortant than money and power. They are
less likely to become corrupt as they
consider their professional career more
significant than anything else.”
Critics of AIJS say that district
judges, if recruited through an all-India
examination, may be unable to perform
their duties well as they would not be
LawMinisterRaviShankarPrasad
recentlysaidthatthecentrewouldwrite
tohighcourtsandstategovernments,
seekingtheiropiniononthecreationof
anAll-IndiaJudicialService.
“Aunifiedjudiciarywillstrengthenthe
federalschemeofgovernanceandenable
thejudiciarytomanageitsinternaladm-
inistrationefficientlywithouthavingto
dependonthegovernment....”
—LateProfNRMadhavaMenon

20. issued. The recruitment of judges is a
three-step process involving a written
preliminary examination, a written
main examination and lastly, an inter-
view. Candidates who have cleared all
three are shortlisted for being appointed
as judges.
The Supreme Court, in Malik
Mazhar vs Uttar Pradesh Public Service
Commission, held that the process of
recruitment, which starts from the date
of issue of the advertisement and culmi-
nates with the date of appointment,
should be completed in 153 days for jun-
ior civil judges and 273 days for district
judges. The Daksh study has revealed
that this directive is being sidestepped
across the country. The Delhi High
Court, for instance, took 403 days to fin-
ish the recruitment process which began
in 2017.
The Vidhi Centre for Legal Policy has
blamed inadequate infrastructure and
manpower to conduct the examinations
and lack of awareness among potential
candidates about the examinations as
reasons for the vacancies not getting
filled up in time.
Even as the centre is toying with the
idea of creating AIJS, the Supreme
Court is exploring the feasibility of
bringing the examinations under one
centralised system. Obviously, the cen-
tralised system, as envisaged by the
Supreme Court in this case, will be
inconsistent with Articles 233–237 of
the Constitution which require state
governments and high courts to have
exclusive powers to conduct and choose
the method of selection of lower
court judges.
It is to be seen how the Supreme
Court overcomes this hurdle as Par-
liament alone has the power to amend
the Constitution.
ed all-India judiciary have to be neces-
sarily provided by the centre. “Such an
approach will strengthen the federal
scheme of governance while enabling
the judiciary to manage its internal
administration efficiently without hav-
ing to depend on the government for
getting even basic facilities,” he wrote.
According to a study by Daksh, a
civil society organisation, there are
currently 5,133 vacant posts out of the
sanctioned strength of 22,036 judicial
posts in subordinate courts. Out of
the 5,133 vacancies, for 1,324 posts,
the recruitment process has not even
been initiated.
Subordinate court judges are app-
ointed by the governor of the concerned
state after consulting the respective high
courts. The Daksh study shows that
judicial positions in many lower courts
are currently vacant because the proce-
dure for appointment has been delayed
or the notification for initiating the
process of recruitment has not been
proficient with the local language.
Prof Menon’s response to this was that
youngsters learn languages quickly, and
many law graduates are already profi-
cient in more than one Indian language
as they spend five years and more study-
ing law at a law school outside their
home states.
H
e also cited debates of the Con-
stituent Assembly to answer
the criticism that AIJS is
inconsistent with the principle of feder-
alism. He cited Ambedkar as having
said: “When diversity created by division
of authority in a dual polity goes beyond
a certain point, it is capable of produc-
ing chaos. The Draft Constitution has
sought to forge means and methods
whereby India will have Federation and
at the same time will have uniformity in
all basic matters which are essential to
maintain the unity of the country. The
means adopted by the Draft Consti-
tution for this purpose are: (i) a single
judiciary, (ii) uniform laws, civil and
criminal, and (iii) a common all-India
Service to man important posts.”
In Prof Menon’s words, a unified
judiciary helps to institutionalise the
idea of cooperative federalism. In his
view, the funds required for an integrat-
20 July 15, 2019
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
besonline.in
Theitchtocentralise,noticeableamong
thepowers-that-beduringEmergency
andnow,iswhatbotherscriticsofthe
proposal,althoughitwasfirstmootedby
theLawCommissioninthe1950s.
Legal Eye/ All-India Judicial Service
TARDY PROCESS
The recruitment of subordinate judges is a
three-step exercise including a written exam

22. Supreme Court/ Kashi Vishwanath Temple Extension Plan
22 July 15, 2019
ITH a two-judge
vacation bench of the
Supreme Court dis-
posing of a clutch of
petitions against
Varanasi’s Kashi
Vishwanath Temple Extension and
Beautification Plan, also called the
Kashi corridor project, the stage is set
for the age-old narrow lane leading to
the famous Shiva temple to get a wider,
modern look.
The 75-m-wide corridor will link
the Kashi Vishwanath temple with the
Ganga. After its completion, pilgrims
will be able to reach the temple directly
from Manikarnika, Jalasen and Lalita
ghats through this corridor without any
hindrance.
The petitions challenging the project
were filed by some house owners, shop
tenants and the Carmichael Library
Association, Gyanvapi. They had oppo-
sed the demolition of buildings, includ-
ing the library, to clear the way for
Prime Minister Narendra Modi’s ambi-
tious project. They claimed that the
project would adversely affect their lives
and jeopardise their livelihoods.
The Carmichael Library building,
which was acquired on February 15, has
26 shops which are occupied on rent.
The shopkeepers said they were being
deprived of their livelihood, and thus
demanded rehabilitation. According to
the district administration, the library
building, like others, was actually being
purchased by the state government and
the Kashi Vishwanath Temple Trust
for demolition to pave the way for the
project. Adequate payment had been
made for the buildings, the administra-
tion claimed. The library building’s ori-
ginal owner is said to have sold it to the
government, but the tenants invoked the
UP Rent Control Act for the settlement
of their tenancy rights and said their
case should be dealt with separately.
Justices Sanjiv Khanna and BR
Gavai of the vacation bench disposed of
the petition after the Uttar Pradesh gov-
ernment argued that the affected per-
sons had been offered compensation
ranging from `1 lakh to `10 lakh. The
traders found the compensation of `1-2
lakh too small to start life afresh.
In June, six shop owners who filed a
petition for increased compensation
were advised by the Supreme Court to
“engage with the UP government for
adequate compensation”. Appearing for
the UP government, senior advocate
Nidhesh Gupta contended before a vac-
ation bench of Justices Deepak Gupta
and Surya Kant that the project was
spread over 47,000 square metres and
“the petitioners’ premises in question is
merely 100 square metres. How could
they be allowed to stall the project”?
The Allahabad High Court too had
dismissed the petition on May 22. A
division bench of Justices B Amit
Sthalekar and Piyush Agarwal had
asked the petitioners to file a civil com-
plaint instead. Earlier, in July 2018, the
High Court dismissed a PIL challenging
“Stairway to Heaven”
Withthedisposalofpetitionschallengingthisproject,theapexcourthasclearedtheway
forfruitionofthePM’spetdreamandforVaranasitogetapicturepostcardimage
By Atul Chandra in Lucknow
W
DREAM PROJECT
Prime Minister Modi at the foundation stone
laying ceremony of the Kashi corridor project
UNI

23. | INDIA LEGAL | July 15, 2019 23
the corridor project on the ground that
large-scale demolitions and the corridor
would alter the city’s original appear-
ance. Chief Justice DB Bhosale and
Justice Yashwant Varma, who refused to
stop the development project, were of
the opinion that the “corridor was for
the benefit of public at large”.
Of the 291 buildings and houses to
be demolished, the government has
already “purchased through negotiation”
257 and only 34 remain. Two hundred
and fifty-seven structures have already
been demolished. With the Supreme
Court’s latest order removing all the
hurdles blocking the project, which will
be developed on a 39,310 sq-m area,
Varanasi is all set to acquire a picture
postcard image.
The state government made an ini-
tial allocation of `600 crore for the cor-
ridor. Of this, `290 crore was given to
the temple administration for purchas-
ing the properties. The Sri Kashi
Vishwanath Special Areas Development
Board was formed in July 2018 for bet-
ter execution of the project. Forty-three
historical temples and other structures
of architectural importance unearthed
during the demolition of the buildings
already purchased are being preserved
to retain some of the old look. Some of
the demolished two- and three-storey
structures were said to be around 300
years old.
On March 8, the prime minister laid
the corridor’s foundation stone by lay-
ing five bricks with the temple’s name
inscribed on them. He used the occa-
sion to target the previous government
of Akhilesh Yadav for a “non-coopera-
tive environment”. He reportedly said
that renovating the temple complex
was his “long-standing dream”. The
prime minister reportedly said: “I am
told the Mahashivratri celebrations this
time were special in Kashi. We are
working on projects that will improve
facilities for pilgrims in Kashi…We are
connecting the Kashi Vishwanath
temple with the Ganga so that devotees
can travel directly between the two
holy places.”
A
lthough the narrow lanes leading
to the famous temple are the
city’s identity, Modi went on to
add that the corridor will give Kashi “a
new identity in the whole world”.
Reminding the audience of his visit to
the pilgrim city in 2014, Modi recalled
having said that he “had been called by
Ma Ganga”. This project, he said, was
the purpose of the invitation.
The previous Samajwadi Party and
BSP governments had also mooted the
widening of the area around the temple,
but couldn’t muster the courage to imp-
lement their ideas for fear of a public
backlash. But with a strong BJP govern-
ment in the state and Modi again win-
ning from Varanasi with a huge margin,
realisation of the PM’s dream project
became easy.
According to Vishal Singh, CEO of
the Kashi Vishwanath Mandir Trust
which is responsible for the corridor
project, once completed, it would greatly
ease the difficulties of pilgrims. Some
one lakh people visit the temple on any
given day. The narrow lanes, which are
about two feet wide, cannot accommo-
date the crowd which spills over to the
main roads. Absence of toilets, drinking
water facilities and eateries make the
pilgrimage even more trying. Singh
strongly defended the project, calling it
“an essential service”. “This is the first
time in our history that there is so much
focus to improve a Hindu place of wor-
ship,” he reportedly said.
Singh told India Legal that the
Detailed Project Planning for the proj-
ect and tender documents were ready
and it was for the government to get the
approval of the finance committee and
the cabinet. “Paving and construction
will take time and the project should
take about a year and a half to com-
plete,” he said. However, he said the
exact area for the project “has been an
issue as we have been buying buildings
on the go”.
An Ahmedabad-based consultant—
HCP Design, Planning and Manage-
ment Private Limited—has been hired
for the corridor project and the blue-
print is said to be ready. HCP Limited
came to fame after completing the Sab-
armati riverfront development project.
The house owners, shop owners and
tenants who have been uprooted may
have voiced their anger against the BJP
and its leaders, but they were neither
able to stop Modi from returning to
power with a huge majority nor stall the
execution of the Kashi corridor project.
The wide corridor may eventually
rob Varanasi of its famous and unique
galiyaan (lanes), but it certainly won’t
turn it into Kyoto. That promise still
remains a dream.
Ofthe291buildingsandhousestobe
demolished,thegovernmenthasalready
purchased257andonly34remain.Two
hundredandfifty-sevenstructureshave
alreadybeendemolished.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Twitter

24. Supreme Court/ Right to Privacy
24 July 15, 2019
N the landmark judgment declar-
ing the right to privacy as a funda-
mental right, the Supreme Court
held in 2017 that this right includes
the right to be left alone. Do occu-
pants of a car privately-owned but
plying on a public road have a right to
privacy? Can they claim that the laws
meant to ensure decency in a public
place are inapplicable to them as what
they do within the confines of a private-
ly-owned car cannot be construed to off-
end the provisions of a law regulating a
person’s behaviour in a public place?
The Supreme Court’s judgment in
Satvinder Singh @ Satvinder Singh
Saluja and Others vs The State of Bihar,
delivered by a division bench of Justices
Ashok Bhushan and KM Joseph, has
serious implications for the exercise of
the right to privacy in a public place,
even though it is silent on the right to
privacy as such.
The Bihar government introduced a
new excise policy in 2015. It contem-
plated implementation of total prohibi-
tion in a phased manner. To achieve this
objective, amendments were made to
the Bihar Excise Act, 2015, by the Bihar
Excise (Amendment) Act, 2016, notified
on March 31, 2016. In Section 2 (17A),
the definition of a “public place” was
inserted in the following manner:
“Public Place means any place to which
the public has access, whether as a mat-
ter of right or not and includes all places
visited by general public and also inclu-
des any open space.”
The provision, it is obvious, is vague
and can be used to unreasonably restrict
the right to privacy. In Section 19 of the
Act, sub-section (4) was substituted in
the following manner: “Notwithstanding
anything contained in this Act and the
Narcotic Drugs and Psychotropic Sub-
stances Act, 1985 (61 of 1985), the state
government may by notification,
absolutely prohibit the manufacture,
bottling, distribution, sale, possession or
consumption by any manufactory,
bottling plant, license holder or any
person, in the whole State of Bihar or in
any specified local area in respect of all
or any of the intoxicants either totally
or subject to such conditions as it
may prescribe.”
In the Bihar Excise (Amendment)
Act, 2016, a new Section 53—“Penalty
for consumption of liquor in a public
place”—was inserted. This Section says:
“Whoever, in contravention of this Act
or the rules, notifications made there-
under—(a) consumes liquor in a public
place or an unauthorised place; or (b)
consumes liquor in a public place or an
unauthorised place or an authorised
place and creates nuisance; or (c) per-
mits drunkenness or allows assembly of
unsocial elements in his premises or on
the premises of a liquor establishment
shall be punishable.”
It further adds: “(1) In case of an
offence falling under clause (a), with a
term which shall not be less than five
years but which may extend to seven
years and with fine, which shall not be
less than one lakh rupees but which may
extend to ten lakh rupees; (2) In case of
an offence falling under clause (b), with
a term which shall not be less than
seven years but which may extend to 10
years and with fine, which shall not be
less than one lakh rupees which may
extend to 10 lakh rupees; (3) In case of
an offence falling under clause (c), with
a term which shall not be less than 10
years but which may extend to impri-
sonment for life and with fine, which
Leave Me Alone
TheCourt,whileinterpretingtheBiharProhibitionandExcise
Act,2016,deniedtherighttoprivacytooccupantsofaprivate
caronapublicroad.Willitcurtailthisrightinallitsforms?
By Venkatasubramanian
I
AGAINST THE LAW
Consumption of liquor in a public place is a
punishable offence under the Bihar Excise
(Amendment) Act, 2016
facebook.com

25. | INDIA LEGAL | July 15, 2019 25
shall not be less than one lakh rupees
which may extend to 10 lakh rupees.”
In the Bihar Prohibition and Excise
Act, 2016, the definitions of “place” and
“public place” were changed to the fol-
lowing effect—Section 2 (53): “Place
includes building, house, shop, boat,
booth, vessel, raft, vehicle, conveyance
or tent enclosure”; Section 2 (54):
“Public Place means any place to which
the public has access, whether as a mat-
ter of right or not and includes any open
space or any transport, whether public
or private.”
In place of Section 53 which provid-
ed for penalty for consumption of liquor
in a public place, a new Section, namely,
Section 37 providing for “penalty for
consumption of liquor” has been intro-
duced. Under this new provision, who-
ever consumes liquor or intoxicant in
any place, or is found drunk or in a state
of drunkenness at any place, or drinks
and creates a nuisance or violence at any
place including in his own house or
premises, or permits or facilitates
drunkenness or allows assembly of
drunken elements in his own house or
premises, shall be punishable with the
same severity, as had been prescribed
under Section 53.
In the present case, the appellants,
all Rotarians, were travelling from
Giridih, Jharkhand, to Patna to attend a
meeting of the Rotary Club on June 25,
2016. Their vehicle was stopped at
Rajauli checkpost, Nawada district,
Bihar, by an excise sub-inspector.
Nothing incriminating was found in the
vehicle. The appellants were subjected
to a breath analyser test in which a cer-
tain quantity of alcohol was found. They
were arrested and remained in custody
for two days. The chief judicial magis-
trate (CJM), Nawada, took cognisance
of the offence. The appellants first filed
an application under Section 482, CrPC,
praying for setting aside the CJM’s
order. The Patna High Court dismissed
the application on the ground that the
CJM had jurisdiction to try the case as
the Bihar Prohibition and Excise Act,
2016, which provides for cognisance of
offences by a special judge came into
force after the CJM took cognisance.
The Supreme Court considered
whether the definition of “public place”
as introduced by Section 2 (17A) should
include a private vehicle. The definition
of “place”, the bench held, as contained
in Section 2 (17) is an inclusive defini-
tion which specifically includes “vehicle”.
When the word “place” includes
“vehicle”, the term “public place” also
has to be interpreted in the same light,
the bench reasoned.
U
nderlining the key words, “any
place to which the public has
access” which is qualified by the
phrase, “whether as a matter of right or
not”, the bench held that when a private
vehicle is passing through a public road,
it cannot be accepted that the public has
no access. “It is true that the public may
not have access to a private vehicle as a
matter of right, but definitely the public
has the opportunity to approach a
private vehicle while it is on a public
road.” Thus the bench rejected the con-
tention that the vehicle in which the
appellants were travelling was not cov-
ered by the definition of “public place”
under Section 2 (17A) of the Bihar
Excise (Amendment) Act, 2016. It also
rejected the argument that private con-
veyances would be excluded from the
definition of “public place” as contained
in Section 2 (17A).
The bench agreed that the consump-
tion of liquor within Bihar constitutes
an offence under the Act. A person who
consumes liquor in a different state
cannot be penalised under Section 53(a)
unless there is some evidence to prove
that the act took place in Bihar. But the
bench noted the difference in phrase-
ology of the Bihar Prohibition and
Excise Act, 2016, and the Bihar Excise
(Amendment) Act, 2016, which applied
to the appellants. Under the former Act,
even a person who consumes liquor out-
side Bihar and enters Bihar, but is found
drunk or in a state of drunkenness can
be charged with offences under Section
37 (b) of that Act. Under the latter, the
consumption of liquor has to be within
the state of Bihar. The bench, therefore,
asked the appellants to approach the
jurisdictional magistrate to consider
their discharge on this ground.
But the larger question thrown up by
this judgment is whether Section 294 of
the IPC, which seeks to punish any
obscene act in “any public place” with
imprisonment of the doer for a term
which may extend to three months or
with fine or with both, could apply to
the occupants of a privately-owned
vehicle on a public road. If so, it has
grave implications for the sexual free-
dom of a consensual couple.
Hopefully, the Supreme Court’s
interpretation of the Bihar Prohibition
Act will not be stretched so as to
curtail the right to privacy in all its
manifestations.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
JusticesAshokBhushanand
KMJoseph(right)saidthat
whenaprivatevehicleispass-
ingthroughapublicroad,it
cannotbeacceptedthatthe
publichasnoaccesstoit.It
thusrejectedthecontention
thatprivateconveyancesare
notcoveredinthedefinitionof
“publicplace”undertheAct.

26. My Space/ “Soft Sacking” Army Commanders Maj Gen Ashok Mehta
26 July 15, 2019
HERE is a political spin
on the story leaked to
Hindustan Times about
the government’s decision
on “soft-sacking” of army
commanders in whose
area of responsibility terrorist attacks
are successfully carried out. The offend-
ing officers would be advised to put in
their papers, to go home. In other
words, enforced voluntary retirement.
The Modi 2.0 government has made
national security its crown jewel given
how the path-breaking surgical ground
and air strikes against Pakistan have
restored India’s power and dignity in the
eyes of the common man and enabled
Narendra Modi to be returned as prime
minister. During the last election cam-
paign, the ruling establishment show-
cased its achievements of preventing
terrorist attacks outside J&K in the rest
of India bar two border districts of
Punjab-Sunjwan and Pathankot. The
attacks in Uri, Sunjwan, Nagrota and
Pathankot were a huge embarrassment
for the government because some of
these happened after Modi’s impromptu
visit to Lahore to felicitate Prime
Minister Nawaz Sharif. These attacks in
J&K took the sheen off an otherwise
unblemished record of “no terrorist
attacks in the hinterland”.
Apportioning blame, that is, fixing
responsibility and accountability is a
serious moral issue of culpability. But
where in the chain of command does the
buck stop in military operational mat-
ters where a number of agencies and
departments are involved? The 1965 war
saw widespread dismissal of command-
ers from battalion to divisional level.
They were removed from command, not
asked to put in their papers for volun-
tary retirement, which is legally unten-
able. In the 1971 war which was a his-
toric victory, no one was directly taken
to task for lapses. Officers in the chain
of command were penalised by adverse
entries in their war reports. In the
Hindustan Times report, defaulting offi-
cers involved in Uri, Sunjwan and
Nagrota incidents are being asked to go
home. This generation of officers will
not take orders to go home easily.
The military tribunal and civilian
courts are proactive, given the proclivity
of aggrieved soldiers to approach courts,
a completely new phenomenon. Further,
even the Army Act, Section 18—with-
drawal of the pleasure of the president—
which is called the guillotine and
regarded unassailable, was in 2005
made justiciable by a landmark judg-
ment in the Delhi High Court by Justice
Sunanda Bhandare. This weapon is
unlikely to be employed as courts have
become intrusive. Brig Surinder Singh,
commander, 121 Independent Infantry
Brigade, who was sacked for negligence
and failure to detect Pakistani incur-
sions in Kargil, went to court and fought
epic battles there supported by the opp-
position Congress party. The fact is, he
challenged his dismissal for what he
thought were valid reasons—lack of
intelligence and resources.
The new Modi government wishes
now to replicate its record of no terror
strikes outside J&K to within J&K. This
will be difficult, if not impossible, to
achieve. The deterrent of offensive def-
ence has the Doval Doctrine stamp
(National Security Advisor Ajit Doval).
This is to ensure that the political objec-
tive of zero tolerance for terrorism is
achieved in J&K too. According to the
Hindustan Times report, the decision
to take punitive action against default-
ing commanders was taken soon after
the formation of the new government.
Asking officers to go home after con-
ducting inquiries into a mishap will not
go down well with the Army rank and
file and chain of command because
courts of inquiry are never able to
present the full picture of the terrorist
Taken to Task
Thecentre’sideaofsendinghomecommandersinwhose
areaterroristattackstookplaceisretrograde,badinlaw
andwillcrushmorale.Itwon’tstopasuicidebomber,only
goodintelligencewill
T
FIERCE ENCOUNTERS
Indian Army soldiers search for suspected
militants after a gunbattle in Mohra, Uri
Sector, on December 5, 2014

27. BrigSurinderSingh,commander,121
IndependentInfantryBrigade,whowas
sackedforfailuretodetectPakistani
incursionsinKargil,foughtepicbattles
incourt,supportedbytheCongress.
| INDIA LEGAL | July 15, 2019 27
attacks.
Recently, I was in Lucknow’s
Headquarters Central Army Command
to participate in a seminar where I dis-
cussed this issue with some officers.
First, most officers had heard about the
report about punitive action against
commanders whose area of operational
responsibility is violated by terrorists.
Second, none seemed overly concerned
about the new rule and order. They told
me that officers are usually rewarded
and penalised according to their
units’/commands’ operational perform-
ance. The Annual Confidential Report
(ACR) is seen as the final arbiter of jus-
tice. They also said that the new govern-
ment orders, if implemented, will have
an adverse impact on morale. As J&K is
the main internal theatre of conflict,
ACRs stamped there normally see
careers break through or break down, so
critical is the operational command per-
formance there. Eight five percent of the
officers likely to be affected are from the
fighting arms, principally the infantry.
I
n 2016, soon after the Pathankot
attack in which fidayeen breached
the air force base perimeter and in
the aftermath of other attacks, the gov-
ernment formed a committee headed by
former Vice Chief of Army Staff Lt Gen
Philip Campose to investigate why
walled/fenced perimeter camps were
being penetrated by terrorists. In his
report, which has not been made public,
Campose commented on the layout,
defensibility, technology and other
resources available to commanders to
ward off terrorists from behind LoC
defences. The Campose report, which is
very comprehensive, made a slew of rec-
ommendations combining use of sur-
veillance and protective devices with
human resources while underlining the
overriding importance of intelligence.
His report noted the overreliance on
improvisation due to insufficiency of
resources. He had recommended a min-
imum allocation of `10,000 crore to
implement some of his recommenda-
tions. Not surprisingly, no provision was
made in the last two defence budgets for
enhancing the defensibility of existing
army camps/bases in rear areas behind
the LoC, some being decades old.
Although infiltration has reduced, army
installations that support troops on the
LoC remain vulnerable. Former home
secretary Rajiv Mehrishi had carried out
a similar exercise on the Punjab border
to alert troops. He had also made rec-
ommendations on the use of high tech-
nology gadgetry in the border areas for
early detection and identification. His
report is also under wraps.
On resources, our commanders ironi-
cally have made a fetish of celebrating
inadequacy of vital military equipment
and making a virtue of necessity. Two
instances come to mind—former Army
Chief Gen VP Malik’s famous quip dur-
ing the Kargil conflict “we will fight
UNI

28. 28 July 15, 2019
with what we have” and incumbent
Chief of Air Staff, Air Chief Marshal BS
Dhanoa making a similar comment
after the Balakot air strikes. In response
to a question about the crisis escalating
into war, he said: “The IAF will fight
with what it has.”
I
nstead of the authorised 42 fighter
squadrons, the IAF has only 30
squadrons with which it is expected
to fight a two-front war. BJP’s Maj Gen
BC Khanduri, former chairman of the
Parliamentary Standing Committee on
Defence, had noted with concern in
2017 that shortfalls in modernisation
and critical deficiencies in ammunition
undermined the capacity to fight a sus-
tained war. Khanduri virtually declared
the army “not fit for war” and lost his
job. As a soldier politician, he made it
eminently clear he was first a soldier.
Former Army Chief Gen VK Singh, who
was re-elected to Parliament, was
expected to keep Modi informed about
the ground reality and state of health of
the armed forces. As army chief, he had
done so in 2013 through his letter to
Prime Minister Manmohan Singh about
hollowness in critical inventories. This
got leaked to the media and created a
furore in Parliament.
If the Hindustan Times report is true
(the government has not rebutted it), it
will add to the anxieties of commanders,
especially those with areas of responsi-
bility on and/or behind the LoC where
they are fighting 360 degrees and 24/7.
I recall that two years before Pakistan
launched Operation Gibraltar in J&K in
August 1965, Pakistani infiltrators and
regulars were keeping our troops on
their toes by sniping, ambushing and
using mines and explosives in rear areas.
The army headquarters had told higher
commanders that it wanted zero attacks
in rear areas and on army posts and
when these happened, it expected
instant reprisals across the then Cease
Fire Line (now LoC).
So surgical strikes were indeed car-
ried out earlier too and sometimes at
more than one target against Pakistan
army posts. And as proof of strikes,
body parts were brought back. A
Pakistani attack on one’s own post was
the ultimate ignominy and resulted in
indirect sackings. Commanders were
removed and replaced, but not asked to
go home. To prevent attacks taking
place, most post commanders would
sleep at night with their boots on, lead-
ing to a fortress mentality.
In their zeal to prove commanders
and troops were alert, fit and kicking,
instances of staged Pakistani attacks
being beaten back with casualties were
not unknown. This earned rewards, but
subsequently encouraged immoral prac-
tices like fake killings, fake encounters
and fake attacks. The fear of being
sacked engendered recourse to carefully
choreographed fake operations, but
these were rare. Higher commands’
template for measuring success and fail-
ure must not just be headcounts or pre-
venting fidayeen attacks. The big picture
that must be viewed is of the unit’s oper-
ational and hearts and minds record.
The government’s idea of sending
home erring commanders is retrograde,
bad in law and bad for morale. It will
never stop a suicide bomber. Only good
intelligence will. As a political order, it is
infringement of the command preroga-
tive of the chief of army staff. Gen Bipin
Rawat must resist it, declare the deci-
sion unacceptable and add, the buck
stops with him.
—The writer has fought in all the wars
after 1947 and was Commander of the
IPKF (South) in Sri Lanka
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
My Space/ “Soft Sacking” Army Commanders / Maj Gen Ashok Mehta
Thegovernment’sideaofsendinghome
erringcommandersisretrograde.Asa
politicalorder,itisinfringementofthe
commandprerogativeofthechiefofarmy
staff.GenBipinRawatmustresistit.
Pramod Pushkarna
DIFFICULT TERRAIN
Indian soldiers fought a tough battle in Kargil
between May and July 1999

29. F
our of the country’s
leading English news-
paper chains are feel-
ing the effects of writing any-
thing critical of the Modi
regime: All four have seen a
cessation in government adv-
ertisements. The move, as
reported by Reuters, says the
publications involved are The
Times of India and The
Economic Times from the
Bennet Coleman stable, the
Kolkata-based The Telegraph
and the Chennai-based The
Hindu. It’s a classic ploy
employed by authoritarian
governments that are over-
sensitive to criticism. That the
media has been under pres-
sure—senior editors have lost
their jobs in the post-2014
era—is no secret, but many
big newspaper groups like
that of The Times of India and
The Economic Times attract a
substantial amount of govern-
ment advertising. Newspaper
executives from the group
who obviously did not want to
be named, confirmed a
freeze on government adver-
tising. In the case of the
Bennet Coleman group, this
could amount to 15 percent
of all advertising, which is a
major loss of revenue.
In the case of The Times
of India and The Economic
Times, they have largely
been neutral and objective
but some of their stories have
been rightly critical of the
government. The Hindu faced
a freeze after its editor-in-
chief’s devastating series on
the Rafale deal. The ABP
Group, which publishes The
Telegraph, has been the most
overtly critical and is paying
the price with a freeze on offi-
cial ads, mostly adverts for
government schemes.
W
hen Congress leader
Kapil Sibal decided to
launch a TV channel,
he called it Tiranga TV and the
logo was in saffron and green.
Being an opposition-owned
channel with anchors like
Barkha Dutt and Karan Thapar,
the government saw red. The
broadcaster had already
approached The Telecom
Disputes Settlement
and Appellate Tribu-
nal (TDSAT) to direct
the Ministry of Infor-
mation and Broad-
casting to take on
record its request for
changing the name
and logo of its news
channel from Harvest TV (its
original registered name) to
Tiranga TV. TDSAT has now
responded, allowing Sibal’s
holding company, Veecon
Media & Broadcasting, to use
the name and logo of Tiranga
TV but without the colours saf-
fron and green. Veecon had
contended that there is no
requirement to seek approval
from the I&B ministry for
change of name and logo of TV
channels for cases where there
is no change in directorship
and shareholding. The TDSAT
order, however, noted that the
law does not prohibit use of the
name “Tiranga” and that the
three colours, saffron, white and
green, in that order, are associ-
ated by Indians with the colours
of the Indian national flag but
use of these colours by itself is
not prohibited by the Schedule
under the Act of 1950.
The bench mentioned
that combination of
the word “Tiranga”
and colours of the
national flag do
conjure an image
of the flag and the
similarities created
by such a logo can be treated
as a colourable imitation of the
flag. “Therefore, the impugned
decision so far as it refuses per-
mission to the petitioner to use
its first choice or option cannot
be faulted,” it said in the order.
Sibal, being a leading advo-
cate, is certain to try and
ensure through the legal
process that he continues to fly
the flag.
| INDIA LEGAL | July 15, 2019 29
Media Watch
S
uch viewership numbers were what broadcasting
executives would dream about in their sleep.
Now, they are waking up to it every day, and it
could only involve one subject—cricket. Thanks to the
ongoing ICC Cricket World Cup 2019, Star TV, the offi-
cial broadcasters, are seeing record viewership—367
million viewers, as per BARC data so far—even when
India did not feature. Television viewership delivered a
phenomenal 182.7 million average impressions in the
first two weeks.
Naturally, ad rates are also creating new records,
along with the ones being set in the field. For brands that
are buying slots for all the 48 matches, the rates vary
between `8 lakh and `10 lakh for a 10-second spot,
going up to `15-18 lakh, if a brand only wants to adver-
tise in a particular match. For the India-Pakistan match,
ad rates hit a new record of `20 lakh for 10 seconds.
Television advertisement rates for World Cup 2019
have jumped to their highest, beating what Star India
charged for the Indian Premier League. Much also has
to do with timing for Indian viewers. During the last
World Cup held in Australia, matches were starting at
3.30 am Indian Standard Time (IST). This time, in
England and Wales, the matches start at 3 pm (IST)
and reach the most exciting phase during television
prime time. Original estimates said that Star TV was like-
ly to generate between `1,200 crore and `1,500 crore
through TV ads and another `300 crore on Hotstar.
Now, with India having reached the semi- finals, that
estimate could easily go higher.
Cricket Rules the Airwaves
Message for
the Medium
Flying the Flag

30. Acts & Bills/ Rajya Sabha
30 July 15, 2019
IRST the facts. On June 21,
when the Rajya Sabha had its
first full meeting after the for-
mation of the 17th Lok Sabha,
Venkaiah Naidu, the vice-
president of India, made the
following observations: “At the end of
the last and the 248th session of Rajya
Sabha, a total of 55 Bills were pending
consideration in this House. After the
lapsing of the 22 Bills that were referred
to earlier, the pendency in this House
now stands at 33 Bills. Three bills are
pending for more than 20 years, six bills
are pending between 10-20 years, 14
bills are pending between 5-10 years
and 10 bills are pending for less than 5
years. The oldest pending bill, the
Indian Medical Council (Amendment)
Bill, 1987, has been pending for more
than 32 years. This is certainly not a
happy situation...
“In order to streamline the process, I
suggest that if a Bill is not taken up for
consideration and passing in Rajya
Sabha within five years of introduction
of such Bills, such pending Bills should
be treated as deemed to have lapsed.”
Prior to making this observation, the
chairman of the Rajya Sabha also made
this significant remark: “Under the pro-
vision of Article 107 of the Constitution,
A Convenient
Lapse of Memory?
PendencyofbillsintheUpperHouseiscauseforconcern.AftertheformationofanewLok
Sabha,thegovernmentshouldbemandatedtoreconsiderthebillsandstrategyregardingthem
By Vivek K Agnihotri
F
GETTING TO TASK
Ministers MA Naqvi, Ravi Shankar Prasad and
TC Gehlot at Parliament House, New Delhi
UNI

31. | INDIA LEGAL | July 15, 2019 31
Bills passed by the Lok Sabha during
the course of its five-year term and
pending in Rajya Sabha get lapsed with
the dissolution of the House of the
People. Accordingly, 22 Bills passed by
the 16th Lok Sabha and were pending in
the Upper House got lapsed.
“In effect, Lok Sabha has to take up
these 22 Bills again for consideration
and passing. I am afraid it would take a
minimum of two sessions for doing so.
And this means that the efforts of Lok
Sabha for passing these 22 Bills have
been rendered waste. The Bills that got
lapsed in Rajya Sabha were important
from the socio-economic transformation
of our country.”
These two observations, taken
together, raise two major concerns.
First, that a large number of bills are
pending consideration in the Rajya
Sabha, some of them for decades, which
is not a happy situation. Second, some
bills, which, after a laborious and time-
consuming process, reach the stage of
getting discussed and passed, lapse due
to dissolution of the Lok Sabha and,
therefore, have to be dealt with from the
beginning.
The bills referred to as “pending in
the Rajya Sabha” are those which were
introduced in the House and have not
seen the light of day. In order to get to
the root cause of these not being taken
up for consideration and passage, we
need to look into the governmental logic
for introduction of a Bill in a particular
House. All so-called money bills
(Articles 109 and 110) are constitution-
ally mandated to be introduced in the
Lok Sabha. All the other bills can be
introduced in either House of
Parliament. But, in the context of the
persisting as well as current political
scenario in Parliament, the government
takes recourse to introducing in the Lok
Sabha a bill which is of great signifi-
cance and of more immediate concern
as it is confident of getting it passed on
account of its majority there.
O
ther bills, of a non-controversial
nature, where the Opposition
could be expected to fall in line
in due course may be introduced in the
Rajya Sabha for the purpose of balanc-
ing government business between the
two Houses. Moreover, towards the end
of the tenure of a Lok Sabha, the gov-
ernment pitches in for introducing bills
in the Rajya Sabha on account of its
confidence that bills will not lapse on
the dissolution of the Lok Sabha. Thus,
the government is able to flag its good
legislative intentions even though there
is little time or possibility of getting a
bill passed by both the Houses within
the remaining tenure of the Lok Sabha.
Thereafter, for one reason or another,
namely, change in government, lack of
consensus on the subject or change in
the situation which had led to the intro-
duction of the bill, it continues to be on
the rolls of the Rajya Sabha. This is bec-
ause the Rajya Sabha being a permanent
body (it is never dissolved), the Bills
there don’t lapse till they leave its por-
tals and reach the Lok Sabha. The gov-
ernment often has a convenient lapse of
memory and lets sleeping dogs lie indef-
initely. The remedy recommended by
Naidu is that all such Bills should be
deemed to have lapsed if they have been
kept pending for over five years.
At the same time, he expressed con-
cern about the constitutional provision,
namely, Article 107, the relevant provi-
sions (Clauses (4) and (5)) of which read
as follows:
“(4) A Bill pending in the Council of
States which has not been passed by the
House of the People shall not lapse on a
dissolution of the House of the People.
“(5) A Bill which is pending in the
House of the People, or which having
been passed by the House of the People
is pending in the Council of States, shall
subject to the provisions of Article 108,
lapse on a dissolution of the House of
the People.”
The “doctrine of lapse” enunciated in
the provisions above, implies that any
bill, irrespective of its origin, whether in
the Rajya Sabha or the Lok Sabha, laps-
es once it has entered the portals of the
Lok Sabha. But there are exceptions
such as when a bill passed by both
Houses has been sent for obtaining the
president’s assent or when the president
has notified his intention to summon a
joint sitting of Houses to consider a bill
upon which the two Houses have dis-
agreed (Article 108) or when a bill intro-
duced in the Rajya Sabha is pending
before a Department Related
Parliamentary Standing Committee
serviced by the Rajya Sabha Secretariat.
Be that as it may, in both types of
cases flagged by Naidu, there is need for
a “wider debate”. As far as the long-term
pendency of the bills in the Rajya Sabha
is concerned, the suggestion of Naidu
that they should be deemed as lapsed
after five years is eminently workable.
However, a better proposition would
“Theoldestpending
bill,theIndian
MedicalCouncil
(Amendment)Bill,
1987,hasbeen
pendingformore
than32years.This
iscertainlynota
happysituation...”
—VenkaiahNaidu,
vice-president
ofIndia

32. Acts & Bills/ Rajya Sabha
32 July 15, 2019
Lapsed Bills in the Rajya Sabha
include:
The Land Acquisition Bill passed by
the Lok Sabha in 2015
Factories (Amendment) Bill passed in
2016
The Motor Vehicles (Amendment) Bill,
2017
The Consumer Protection Bill, 2018
The Arbitration and Conciliation Bill,
2018
The Companies (Amendment) Bill,
2019
The Banning of Unregulated Deposit
schemes Bill, 2019
The Aadhaar and Other Laws
(Amendment) Bill, 2019
Triple Talaq Bills of 2017 and 2018
The Trafficking of Persons (Prevention,
Protection and Rehabilitation) Bill, 2018
The Citizenship (Amendment) Bill,
2019.
Bills pending in the Rajya Sabha
include:
The Constitution (79th Amendment)
Bill, 1992
The Provision of the Municipalities
(Extension to the Scheduled Areas)
Amendment Bill, 2001
The Seeds Bill, 2004, The Pesticides
Management Bill, 2011
The Mines (Amendment) Bill, 2011,
The Inter-State Migrant Workmen
(Amendment) Bill, 2011
The Indecent Representation of
Women (Prohibition) Amendment Bill,
2012
The Building and Other Construction
Workers Related Laws (Amendment)
Bill, 2013
The Wakf Properties (Eviction of
Unauthorised Occupants) Bill, 2014.
Thewaitinggame
be that after the formation of a new Lok
Sabha, the government should be man-
dated to reconsider the bills pending in
the Rajya Sabha and the minister for
parliamentary affairs should be required
to make a statement in Parliament
about the government’s strategy in
respect of those Bills. In other words,
he should say which of them would be
withdrawn, which would be pursued
and which would be replaced by a new
bill. In the event of the government
failing to make such a statement within,
say, six months of the formation of the
new government, all the bills pending in
the Rajya Sabha prior to the formation
of the Lok Sabha shall be deemed to
have lapsed.
The other concern voiced by Naidu is
of far greater import. It is about the
“indiscriminate” lapsing of the bills,
pending in either House, on the dissolu-
tion of the Lok Sabha in view of Clause
(5) of Article 107. The parliamentary
legislative process is a long-drawn one.
Various stages through which a bill has
to necessarily go through—introduction,
reference to the Department Related
Standing Committee (which may involve
consultations with stakeholders), and
passage after discussion and debate—
consume considerable time.
The time-frame is further stretched
as the parliament, of late, has about 60
to 70 sitting days per year spread across
three sessions (budget, monsoon and
winter). The way out would be to pro-
vide that a bill passed by the Lok Sabha
and pending in the Rajya Sabha at the
time of the dissolution of the former
may continue to be discussed in the
Upper House. But this would need to be
sent back to the new Lok Sabha for
reconsideration. It may, however, be
withdrawn or replaced by the govern-
ment, with the permission of the House,
at any time.
However, the changes proposed for
both the eventualities mentioned above
would require appropriate amendments
to the Constitution. There is another
way out, one which the government
sometimes adopts. It brings in bills to
replace some of the ordinances, promul-
gated under Article 111 during the previ-
ous Lok Sabha, in the first session of
Parliament summoned after the general
election. Most of the time, conversion of
such ordinances into acts is a well-
orchestrated short-cut to pet legislative
proposals. It, thus, to some extent, helps
circumvent the tortuous legislative
process.
—The writer is a former Secretary-
General of the Rajya Sabha
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Source: Rajya Sabha Debates
Thegovernmentshouldbemandatedto
reconsiderbillspendingintheRajya
Sabhaandtheministerforparliamentary
affairsshouldberequiredtomakea
statementinParliamentaboutthebills.
STREAMLINING PROCEDURES Members at a discussion in Lok Sabha