India Legal 15 May 2017

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Exciting
New FrontierIndia is poised to enter the international
arbitration arena in a big way
High Court says: “The worst
judgment in recent times”
Real estate law: dead
end for fraudsters
NirbhayaJudgment
SupremeCourtupholdsdeathsentence,saysthere’sno
scopeformagnanimityinthisbrutalcrime

ECENT inventions and business methods call
attention to the next step which must be taken
for the protection of the person, and for secur-
ing to the individual … the right ‘to be let alone’
… Numerous mechanical devices threaten to
make good the prediction that ‘what is whispered in the
closet shall be proclaimed from the house-tops.’”
Does this read like an observation made in the media
by one of India’s liberal commentators with reference to
the recent hearings in the Supreme Court on the compul-
sory linking of the biometric Aadhaar card with income
tax returns?
It is not.
These words were written by a young American law-
yer, 34-year-old Louis Brandeis 26 years before he would
join the Supreme Court and turn into a legal legend. The
invention he referred to, wrote Leah Burrows, in an arti-
cle for BrandeisNOW in 2013, is the portable camera
and in the context of the business methods of celebrity
journalism and snooping.
Brandeis and his law partner Samuel Warren pub-
lished “The Right to Privacy” in the ‘Harvard Law Re-
view’ in 1890. It has been universally hailed as the pio-
neering dissertation advocating a legal right to privacy.
Nearly 30 years later, in 1928, with the popularisation
of the telephone and the invention of wiretapping,
Supreme Court Justice Brandeis scripted a land-
mark dissent against the Chief Justice’s opinion, in
which Brandeis, opposing eavesdropping, assert-
ed the sanctity of the constitutional right to pri-
vacy (Olmstead v. United States).
Burrows quotes Steve Whitfield, the Max
Richter Professor of American Civilization:
“First as an attorney, then as a jurist,
Brandeis was the single most import
figure in the history of the concept of
privacy.” Brandeis was also the
first jurist to recognise the threat
technology posed to citizens.
It’s like a déjà vu in the
Indian Supreme Court where
Senior Advocate Shyam Divan has
argued: “My fingerprints and iris are
mine and my own. As far as I am con-
cerned, the State cannot take away my
body. This imperils my life. As long as my
body is concerned, the State cannot
expropriate it without consent, and for
a limited purpose.”
The debate stems from two writ petitions against
amendments to the Income Tax Act filed by CPI leader
Binoy Viswam, represented by Arvind Datar, the other by
retired Major General Sudhir Vombatkere and Dalit
activist Bezwada Wilson, represented by Divan. Section
139AA, introduced through the Finance Act, 2017, pro-
vides for mandatory quoting of Aadhaar or enrolment
ID of Aadhaar application form for filing of I-T returns
and making application for allotment of PAN with effect
from July 1, 2017.
Divan argued this was intrusive and violative of indi-
vidual privacy and rights which have been expanded
under Article 21 of the Indian constitution. Attorney
General Mukul Rohatgi countered Divan’s “bodily intru-
sion” argument by asserting that there was no absolute
right of a citizen over his own body. If this was the case,
then it would deny the State the right to impose the
death penalty or restrictions on suicide and drug abuse
or fingerprinting of criminals.
US Chief Justice Taft, who had written the majority
opinion against which Brandeis had dissented, defended
the decision by asserting: “By the invention of the tele-
phone fifty years ago and its application for the purpose
of extending communications, one can talk with another
at a far distant place. The language of the (Fourth Ame-
ndment) cannot be extended and expanded to include
telephone wires reaching to the whole world from the
defendant’s house or office. The intervening wires are not
part of his house or office any more than are the high-
ways along which they are stretched. We think, therefore,
that the wiretapping here disclosed did not amount to a
search or seizure within the meaning of the Fourth Ame-
ndment (safeguarding the right to privacy and freedom
from unreasonable searches).”
“The progress of science in furnishing the Govern-
ment with means of espionage is not likely to stop with
wiretapping,” Brandeis wrote in Olmstead, (a case in
which the government illegally wiretapped the conversa-
tions of a suspected bootlegger).
“Ways may someday be developed by which the
Government, without removing papers from secret draw-
ers, can reproduce them in court, and by which it will be
enabled to expose to a jury the most intimate occur-
rences of the home.”
Today, Brandeis’ words sound prophetic, writes
Burrows. “Brandeis was ahead of his time in his aware-
ness of the role technology played in evolving legal
R“
WHOSE BODY IS IT ANYWAY?
Inderjit Badhwar
Letter from the Editor
4 May 15, 2017

| INDIA LEGAL | May 15, 2017 5
standards,” explains Frederick Lawrence, a noted legal
scholar specialising in First Amendment (freedom of
expression) issues.
Burrows does, however, acknowledge that it is diffi-
cult to speculate how Brandeis would respond to the
American National Security Agency’s (NSA) massive
electronic data mining programme, known as PRISM.
On the one hand, Brandeis would want to protect citi-
zens from intrusion: “He would be concerned about the
accumulation of data that might be used to compromise
individual privacy.”
O
n the other hand, Brandeis might have difficulty
reconciling privacy and security. “Brandeis could
not have anticipated the right of privacy would
be pitted against national security and the challenge of
terrorism. The stakes are considerably higher today than
in Brandeis’ time.”
Also, the expectation of privacy has changed since
Brandeis’ era. “Thanks to Facebook, Foursquare, Twitter
and other social media sites. Today, many people volun-
tarily and actively give up their right ‘to be let alone.’”
Burrows quotes from an interview with Dan Breen, a
senior lecturer in legal studies: “He (Brandeis) would
have a hard time in the Internet age, where there is noth-
ing but information and no separation between your life
and someone else’s. What is certain, however, is that
Brandeis would have welcomed a robust debate about
privacy in the digital age. Brandeis believed in the value
of experience. He would think that a genuine debate
would be the best way to handle this situation.”
Fast-forwarding to the recent Indian Supreme Court
debate, Justice AK Sikri (who was on the bench with
Justice Ashok Bhushan) responded to Rohatgi: “You
cannot raise the spectre of crime to say that we will
treat everyone as an accused. The liberty of individuals
is to be maintained. We live in a society and we have
to live with dignity. You cannot stretch this theory to
that extreme. Isn’t there a balance between dignity and
state interests?”
The main thrust of Divan’s argument is contained in
these lines:
“This is fundamentally altering the relationship bet-
ween State and individual. We gave birth to the State.
We are sovereign. Will we be put on an electronic leash
for our entire lifetimes? If from birth onwards, the State
knows everything about you, will the relationship bet-
ween State and individual remain the same?” Also:
“Biometric information, specifically finger prints and
iris scan are intimate parts of a person’s body. They be-
long to the person, not the State. According to John
Locke, ‘Though the Earth, and all inferior Creatures be
common to all Men, yet every Man has a Property in his
own Person’, and Salmond reminds us that he speaks of a
man’s right to preserve his own property i.e. his life, lib-
erty and estate. As Peter Benson notes in Philosophy of
Property Law: ‘The right of bodily integrity is, first of all,
a right, i.e. it refers to the fact that each individual has
the rightful exclusive possession and use of his or her
own body as against everyone else.’”
The debate and the arguments are for real. What is
truly puzzling is why these critical national issues of
constitutional importance now being argued in the
apex court, sailed through parliament as amendments
to the Finance Bill without any red flags and nary a
peep of protest.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
VEXING ISSUE
Does compulsory biometric registration violate
principles of natural justice?

Contents
A New Legal Frontier
With Mumbai and Gurugram emerging as destinations for international arbitration, alternate
dispute resolution is opening up new vistas
14
LEAD
VOLUME. X ISSUE. 26
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6 May 15, 2017
Congratulations, India Legal
It was another feather in the cap for noted journalist Inderjit Badhwar who won the IDEX
Award for “Legal Journalism of the Year” for his astute legal analysis and incisive reporting
13
AWARDS
A Judge’s Impunity
Inadequacies within the system limit action against sitting judges and this is what Justice
CS Karnan is currently exploiting. Should the apex court ignore him till he retires in June?
20
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Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs .........12, 27
International Briefs..........45
Media Watch ..................49
Satire ..............................50
Cover Illustration and Design:
ANTHONY LAWRENCE
Leading from the Front
Congress president Sonia Gandhi is back in action and has initi-
ated a reshuffle keeping in mind assembly elections in six states
24
POLITICS
“The Worst Judgment”
A Tamil Nadu sessions court order jailing five persons for life
based on their tribe has invited the ire of the Madras High Court
28
COURTS
The Ravaging of Munnar
The NGT has rapped the Kerala government for reneging on vows
to rein in the construction mafia in this eco-sensitive hill station
32
ENVIRONMENT
Who Will Bell the Cat?
As Kashmir teeters on the edge of a precipice, experts are urging the centre and
all stakeholders to hold talks for a political solution
35
STATES
A Noble
First Step
Prime Minister Modi’s push for
generic medicines can be successful
only if pharmacies, drug controllers
and doctors put aside their greed and
patients are educated
46
HEALTH
Customer is King
The Real Estate (Regulation and Development) Act will make unscrupulous devel-
opers pay for their false promises and give hope to homebuyers
42
ACTS&BILLS
Cry Me a River
Though the Rs 18,000-crore Ken-Betwa project in Bundelkhand is the first in a
grand plan to solve India’s water woes, its effects have environmentalists up in arms
38
Rarest of Rare, Indeed
The Supreme Court has upheld the death sentence of the four
convicts in the Nirbhaya case. Excerpts from the judgment
31

8 May 15, 2017
“
RINGSIDE
The red beacon used to be fixed atop a vehicle but slowly and
steadily it permeated into the psyche and got firmly entrenched
in the mindset. The concept behind the 'New India' is that EPI
should replace VIP. EPI means Every Person is Important. We
should accept the importance of 125 crore Indians.
—Prime Minister Narendra Modi, in Mann Ki Baat
India, with a popu-
lation of 1.3 billion
is not a part of the
UNSC. Over 1.7 bil-
lion people live in
the Islamic world
but they too are not
a part of the UNSC.
A nation like Japan
is not a part of the
group. This is not a
healthy sign. We
need a fair and just
world order by
bringing in signifi-
cant reforms in
the UNSC.
—Turkish President
Recep Tayyip
Erdogan, support-
ing India’s case for
permanent UNSC
seat, at a special
convocation in
Jamia Millia
Islamia during his
India visit
We are pure vegetari-
ans, who don’t con-
sume even onion and
garlic. Are we low on
vigour?
—UP Chief Minister
Yogi Adityanath, at a
working committee
meeting in Lucknow
Who will give us the
certificate that there
will be no dengue this
year? Who will assure
this court? We are
talking of life of peo-
ple here. Can you
permit 21st century
Delhi to be reeling
under malaria,
chikungunya, gas-
troenteritis?
—A bench of acting
Chief Justice Gita
Mittal and Justice Anu
Malhotra, taking on
the AAP government
and the corporations
on the dismal hygiene
conditions in Delhi
He would say, ‘Yeh
toh normal cheez
hai, ismein galat kya
hai?’ Mere liye yeh
accept karna bahut
difficult tha.
Activism ka koi
matlab nahi banta,
jab aap ye sab kar
rahe ho. (He would
say ‘this is normal,
what’s wrong about
it?’ Your activism
loses meaning when
you indulge in such
things). When he
kept pursuing me
even after my
refusal, I decided
to leave.
—Actress Shilpi
Marwaha, explain-
ing that she left
Asmita theatre group
after its founder
Arvind Gaur
harassed her, in The
Times of India
I have never under-
stood, why is India
afraid to talk about
Kashmir with
Pakistan? They have
more explaining to do.
—Former RAW chief
AS Dulat, in The
Indian Express
Bodies of soldiers
being mutilated is an
extreme form of a
barbaric act. The
Government of India
strongly condemns
this act and the whole
country has full confi-
dence and faith in our
armed forces which
will react appropriate-
ly to this inhuman act.
The sacrifice of these
two soldiers will not
go in vain.
—Defence Minister
Arun Jaitley, on two
Indian armymen
killed by Pak army
infiltrators

The legal community is
buzzing with speculation
after the extraordinary
“special sitting” called
by the Supreme Court
on a Sunday to hear a
case involving a proper-
ty dispute between fac-
tions of the Singhania
industrial house. The
urgency that led to the
SC working on a
Sunday involved a dis-
pute relating to the own-
ership of a Juhu bunga-
low in Mumbai. The
case, heard by a bench
of Justices Dipak Misra
and AM Khanwilkar, also
involved a powerhouse
of advocates—Kapil
Sibal, P Chidambaram,
Shyam Divan and Dinyar
Madon appearing for
various branches of the
family spread over
Mumbai, Kolkata and
Kanpur. A Bombay High
Court order had backed
an earlier arbitration
agreement and ordered
patriarch Vijaypat
Singhania and his son,
Gautam, to hand over
the prized Juhu bunga-
low to Hari Shankar
Singhania of Kolkata “on
or before May 4”. The
Court sitting on a
Sunday to hear a peti-
tion by Gautam
Singhania (head of
Raymonds) evoked
curiosity and raises
questions as to how the
rich and powerful get
such special treatment
by the judiciary.
The ballooning security crisis in
Kashmir and Chhattisgarh,
headlined by schoolgirls joining
stone-pelters for the first time in
Srinagar, the killing of 26 CRPF
men in Sukma and the behead-
ing of two soldiers along the
LoC, has caused panic stations
in Delhi. A series of meetings at
Home Minister Rajnath Singh’s
residence reevaluated the gov-
ernment’s hardline approach,
and decided on a mid-course
correction. The meetings,
attended by NSA Ajit Doval,
home secretary Rajiv Mehrishi,
DG CRPF RR Bhatnagar,
Research and Analysis Wing
(R&AW) chief Anil Dhasmana
and IB chief Rajiv Jain, culminat-
ed in a meeting at the PMO with
the prime minister along with
J&K Governor NN Vohra, who
happens to be an experienced
security expert, and Ram
Madhav, the BJP’s Kashmir
interlocutor. Vohra shot down a
proposal to impose Governor’s
Rule, saying it would exacerbate
the situation. It was decided to
abandon the hardline approach
and take a softer line by initiat-
ing talks with all stakeholders,
including the separatists who
had been isolated under the ear-
lier strategy. On Maoists, a simi-
lar effort will be made to interact
with the civilian population along
with the induction of advanced
drones to track militants.
An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
SUNDAY FOR SINGHANIAS
Social media has led to
some unexpected opportu-
nities in governance. Last fortnight,
a series of tweets exchanged
between Railway Minister Suresh
Prabhu and Odisha Chief Minister
Naveen Patnaik resulted in an “in
principle” nod for a 35-km rail link
between Konark and Puri! It started
with a tweet from Patnaik’s office:
“CM@Naveen_Odisha proposes
state sharing 50%of project cost for
new rail line from Puri to Konark to
boost tourism potential #Odisha.”
This was followed by:
“CM@Naveeen_Odisha urges
upon Union Min@sureshprabhu for
early sanction of project & signing
an MOU for timely completion.”
The railway minister promptly
agreed through a tweet. Could
anyone believe that a rail link is just
a tweet away?
FAST-TRACKED
ON TWITTERWhat’s in an acronym?
Plenty. Ask officers of the
Indian Foreign Service and
the Indian Forest Service.
Associations of both have
approached the Department
of Personnel and Training
(DoPT) with the plea that
each has the right to the
abbreviation “IFS”. The forest
folks claim ownership
because the Imperial Forest
Service, which later got the
“Indian” tag was formed in
1928 while the foreign service
was created in 1946 just
before Independence. They
also point out that the foreign
service has just 600 officers
while the forest service has
6,000. The vexed issue is cur-
rently before Jitendra Singh,
the minister in charge of
DoPT. The big question
before him: Should he miss
the forest for the foreign serv-
ice or the foreign service for
the forest?
ACRONYM-OUS
BABUS
PANIC STATIONS

The Supreme Court took serious
objection to the Kerala govern-
ment ignoring its earlier order, deliv-
ered on April 24—to reinstate for-
mer state director general of police
(DGP) TP Senkumar. It issued a
contempt notice to the state chief
secretary and asked her to respond
by May 8.
It also slapped a fine of Rs
25,000 on the state government for
filing a petition seeking clarification
of its verdict. The Court dismissed it
and did not relent even after the
state government's plea that it was
withdrawing its petition. It asked the
state to deposit the money with the
Supreme Court Legal Services
Committee.
Senkumar had approached the
Court pleading that the state gov-
ernment was deliberately not follow-
ing its directions on the matter and
sought contempt proceedings.
He was blamed by the Left Front
government for poor handling of the
Puttingal Temple fire tragedy and the
rape and murder of a Dalit law stu-
dent in the state, and removed from
his post. However, the apex court
felt that the reasons cited by the
state for removing him were unfair
and arbitrary.
Kerala fined for not
reinstating DGP
All universities will have to fall in line
as far as verification of LLB certifi-
cates of practising advocates is con-
cerned, the Supreme Court ruled. It
took a serious note of the fact that the
universities were asking for money to
do the job despite the Court telling
them not to do so.
The verification move was started
by the Bar Council of India, in accor-
dance with the Bar Council of India Cer-
tificate and Place of Practice (verifica-
tion) Rules 2015. This was an attempt
to find out lawyers with fake law
degrees and stop them from practising.
The Court made it clear that vice-
chancellors of the errant universities
will have to appear in person before it
for explanation and face contempt char-
ges. All universities were made party to
the case and given eight weeks’ dead-
line to finish the job.
The matter had come before the Co-
urt through a PIL questioning the verifi-
cation norms laid down by the BCI.
The scourge of farmers’ suicides due
to crop failures and other factors
has caught the Supreme Court’s atten-
tion and it has in the past asked the
centre to address the problem serious-
ly. The Court has now taken note that
there has been no difference in their
conditions, and they are still being driv-
en to end their lives. It is hearing this
matter in response to a petition filed by
Citizens Resources and Action Initia-
tive (CRANTI), which pointed out the
dismal scenario in Gujarat. But the Cou-
rt showed concern over the existing sit-
uation in the entire country and wanted
a concrete action plan from the centre.
In the last hearing, CRANTI submit-
ted the report at ground zero and came
up with some suggestions like imple-
menting the Ramesh Chand Committee
Report and Pradhan Mantri Fasal Bima
Yojna (after some changes), bringing
down the debt levels of farmers, etc.
The centre, while presenting statis-
tics on suicides, told the Court about
multi-dimensional measures it has
taken. It wanted some time to respond
to the NGO’s submissions and the
Court granted it four weeks. It also
pointed out that the onus was not only
on the centre; the states too must take
action as the matter fell in their domain.
The Court differed with the centre’s
approach to let Niti Aayog handle the
issue and pointed out that the latter had
too many issues on its platter.
Courts
10 May 15, 2017
Centre gets
reprieve in
farmers’
suicides
Strict norms on
verification of LLB
certificates

The Bombay High Court ordered that artworks of
well-known modern Indian painter MF Husain lying
with IndusInd Bank at Lokhandwala, Mumbai, must
be taken to Fine Art Warehouse in Wadala. This was
necessary for preserving them and ensuring that their
financial worth is not diminished.
The High Court came to know about 25 canvases
which could fetch `25 crore while hearing an arbitra-
tion case between NAFED and
Swarup Group of Industries.
NAFED pleaded that the art-
works, in all probability, would
suffer damage if allowed to lie in
the bank’s locker. It wanted the
artworks kept in an art gallery
or an art warehouse.
Agreeing with NAFED’s con-
tention, the High Court ordered
that they be taken to the ware-
house in Wadala and kept in a
humidity- and temperature-con-
trolled ambience. The job was
entrusted to the deputy sheriff
of Mumbai.
TransferMFHusain’sworks
toartwarehouse
Does Article 21 (right to life) allow a person the
right to refuse treatment on his death-bed? Can a
person mandate this in a “living will” before his death?
The issue came up before the Supreme Court in a
plea filed by four petitioners. But the court passed
the ball to the centre’s court on the ground that the
matter was too sensitive and within the ambit of the
legislature.
The petitioners made it clear that their demand was
not linked to euthanasia They were told to present their
case in front of the secretary, ministry of health and
family welfare.
Referring to the directions of a
TADA court that there is a
need to look into the conspiracy
angle behind former Prime Minis-
ter Rajiv Gandhi’s assassination
in 1991, the Supreme Court
asked the CBI to probe the matter
and file a report.
The Court also wanted to
know the time needed by the pro-
be agency to complete the task.
One of the convicts in the
case, AG Perarivalan, had pointed
out that the conspiracy angle in
the case had been ignored by CBI
as well as the Multi-disciplinary
Monitoring Agency under it and
alleged that many influential peo-
ple were involved in the killing.
He is now serving life imprison-
ment after his death sentence
was commuted by the top court.
The centre submitted that the
probe was already being done
and more time was required as a
few accused had run away to for-
eign countries and needed to be
brought back to India through
extradition.
The Chief Justice of India
(CJI) JS Khehar has made his
displeasure known on frivolous
petitions which result in colossal
wastage of the Court’s time. His
predecessor CJI Thakur had also
come down hard on them, espe-
cially against lawyer-activist
Prashant Bhushan, blaming him
for running a PIL centre and ask-
ing him to scrutinise complaints
before filing PILs.
And now, an NGO has faced
the wrath of the CJI-headed
bench for filing 64 PILs which
had been thrown away by various
benches of the Court in the past
as they lacked merit.
Suraj India Trust was asked to
pay up `25 lakh within a month
for its “misadventure” and sum-
marily banned from filing any PIL
in any court of India. The top
court took note of baseless alle-
gations made by the NGO against
the Supreme Court and Rajasthan
High Court judges in its PILs.
Before taking action, the Court
asked the chairman of the NGO to
explain his case, but received no
acceptable response. It was livid
that the Court’s “jurisdiction had
been misused”, including the
avenue for seeking legal redressal
through PILs.
— Compiled by Prabir Biswas
Centretodecideon“livingwill”
Probe conspiracy angle in Rajiv killing
`25 lakh fine for
frivolous PILs

Briefs
Union HRD minister Prakash Javadekar
has announced that the government is
planning to give top universities full auton-
omy to designing their own curriculum and
hiring professors. “We are making a major
shift by granting the best institutions,
which have been consistently get-
ting A grade or B+ grade from the
NAAC (National Assessment and
Accreditation Council) more freedom
of action. Middle-level institutes will
have 50 percent autonomy and the
third level of institutes more regulation,”
Javadekar said. Barring the degree award-
ed in the name of the university, the
autonomous institutions will decide every
other aspect, such as curriculum, conduct of
examination, hiring of professors or intro-
duction of new courses, the minister said.
Petrol and diesel price are now
being revised daily in sync with
international rates as per a pilot project
in five cities across India—Puducherry,
Visakhapatnam, Jamshedpur,
Chandigarh and Udaipur. State-owned
fuel retailers Indian Oil Corp, Bharat
Petroleum Corp Ltd and Hindustan
Petroleum Corp Ltd, which own more
than 95 per cent of the nearly 58,000
petrol pumps in the country, are run-
ning this project. These rates would
portray the fluctuation in international
oil prices and rupee-dollar exchange
rates. IOC stated that the customers
can verify the prices on their mobile
app or on their website. The new sys-
tem has been effective from May 1.
NITI Aayog has called for the
introduction of a “judicial per-
formance index” in its draft three-year
action agenda. The aim of the index is
to check delays in trial and to address
the issue of pendency of cases. The
index would help high courts and HC
chief justices to keep track of perform-
ance and monitor improvements. The
report underlined the need to speed
up decision-making in corruption
cases. It has also pitched for the need
to set up a separate administrative
cadre in the judiciary, which should
report to the chief justice in each high
court, to maintain judicial independ-
ence and free judges from administra-
tive responsibilities. To decongest the
courts, the Aayog has suggested shift-
ing workload out of regular courts by
way of setting up commercial courts,
commercial division and commercial
appellate division under High Courts
Act, 2015.Daily pricing for petrol,
diesel commences
The Election Commission has cancelled
the Anantnag Lok Sabha bypoll owing
to security concerns. It was slated for May
25. “Keeping in view the ground situation
and having considered the reports of the
divisional commissioner and CEO, it is not
conducive to hold bypolls,” an EC official
stated. In the 10-page order, EC mentioned
“certain elements” which are active in the
area that will scuttle free and fair elections.
The decision comes after the Centre told the
EC it can provide only half of the 75,000
paramilitary personnel it had requested.
EC cancels Anantnag
LS bypolls
“Topvarsitiesfree
todecidecurricula”
12 May 15, 2017
Call for judicial
performance index
The National Green Tribunal on
May 3 asked the electricity board
official present in court why it had not
disconnected the power lines of the
hotels which had made unauthorised
constructions in Kasauli, Himachal
Pradesh, even after other authorities
had asked them to disconnect the
lines. When the officer sought pardon,
the court ordered that the power lines
would have to be cut by May 4, or the
“bench will impose cost directly on the
chairman of the electricity board.” The
bench will hear the hotels’ matter on
May 26.
NGT cuts off power
to Kasauli hotels
—Compiled by Ratnadeep Choudhary

erations, environment laws, beef ban,
uniform civil code and triple talaq.
Run by a team of stalwarts in the
field of journalism, the magazine is
assisted by a large team of Supreme
Court and High Court lawyers who pro-
vide first-hand reports of the happen-
ings in various courts. Credibility, quali-
ty, relevance and high production values
are its hallmarks.
Other prominent winners of IDEX
awards for 2017 include:
Icon of the Year
— Justice BN Srikrishna
Women in Legal Leadership
— Lakshika Joshi
Law firm of the year
—Cyril Amarchand Mangaldas and
Khaitan and Co
IP Law firm of the year
—Gaggar and Partners
Best In-House Legal Department to
work for
—Siemens
Dispute Management Lawyer
of the Year
—Sitesh Mukherjee, Trilegal
Start-up Law Firm of the Year
—TRA Law
Corporate M&A Team of the Year
—Mahindra & Mahindra Ltd
Awards/ IDEX
N a mark of recognition, the presti-
gious IDEX legal award for “Legal
journalism of the year” went to
India Legal’s editor-in-chief
Inderjit Badhwar. Badhwar is a
Pulitzer prize nominee and has worked
for two decades in the US, with his work
being published in leading newspapers
such as The Washington Post. His 2004
novel, The Chamber of Perfumes (origi-
nally titled Sniffing Papa) won France’s
most prestigious international award in
the “Best foreign debut novel” category.
The awards for the legal fraternity
were set up in 2011 by The Ideas
Exchange, a division of IX Events Ltd,
to acknowledge and felicitate in-house
counsels, law firms and start-ups in this
sector. Incidentally, The Ideas Exchange
and its parent company, IX Events Ltd,
have contributed extensively in the field
of conferences and exhibitions. It has
offices in Mumbai, Johannesburg and
London, though its capabilities extend
across Asia, Africa and Europe.
Thomson Reuters and American
Express were the presenting partners
and sponsors of the event.
IMPRESSIVE LINE-UP
Winners of the IDEX awards for 2017
At India Legal, Badhwar’s in-depth
analysis of political and social issues, be
it the government crisis in Uttarakhand
and Arunachal Pradesh, cow vigilan-
tism, environment degradation, courts’
pendency, executive-judiciary tussle or
the Kashmir imbroglio have created a
new benchmark for legal writing.
India Legal has covered path-break-
ing stories in the last three years on
issues as diverse as demonetisation, mis-
use of governor’s powers, Lokayukta, the
Sunanda Pushkar murder case, Vijay
Mallya’s extradition case, non-perform-
ing assets of banks, frauds in sports fed-
I
NotedjournalistandIndiaLegal’seditor-in-chiefgetsanother
featherinhiscapbywinning“Legaljournalismoftheyear”
awardforhisastutelegalanalysisandincisivereporting
By India Legal Team
KudosforIndiaLegal

Lead/ Arbitration Hubs
14 May 15, 2017
UMBAI and Gurugram
(the old Gurgaon) seem
to be vying with each
other to make India the
hub of international
arbitration. The Mum-
bai Centre for International Arbitration
(MCAI) was set up in October 2016, and
on January 19, 2017, Gurugram District
and Sessions Judge Harnam Singh
Thakur disclosed that the Punjab and
Haryana High Court has passed a reso-
lution and a proposal was sent to the
Haryana government for setting up an
international arbitration centre in Guru-
gram, which houses a bunch of Fortune
500 companies.
The race has just begun, and there is
excitement in the air about the possibili-
ties of India tapping the talents of its
legal community of former judges and
lawyers to provide arbitration services
in a free market global economy. Pri-
vate companies from different countries
are already entering into partnerships
through complex commercial agree-
ments. Differences and disputes are
bound to arise and there is a need for a
A Legal
Sunrise
Indiaispoisedtoenterthe
internationalalternativedispute
resolutionarenainabigway.But
toseizetheopportunity,Indian
lawfirmsmustgainacceptance
inthecountryandabroadfor
theircompetenceandreliability
By Parsa
Venkateshwar Rao Jr
M
Illustration: Anthony Lawrence

legitimate institutional framework to
resolve the disagreements, which at the
same time avoids the legal labyrinths
of litigation.
To the question whether India has a
long way to go before it can make its
presence felt globally, senior Supreme
Court lawyer Gaurab Banerjee says:
“Delhi alone deals with 200 arbitration
cases in a year, which is what Singapore
does. Singapore knows how to market
itself.” Right now, London is the leading
arbitration centre, followed by Singa-
pore and Hong Kong.
MINDSET MUST CHANGE
There are others who feel that India is
still to acquire the expertise as well as
the infrastructural facilities to attract
international arbitration cases.
D Sengupta, joint registrar of the
1965-established Indian Council of
Arbitration (ICA) says: “There is a need
to change the mindset. The Indian arbi-
tration scene is still dominated by reti-
red judges and lawyers. Arbitration is
meant to move away from the rigidities
of the legal system.”
He cites the example of a dispute
between a Mumbai-based construction
company and a public sector unit in
Kolkata, where the arbitration went on
for 40 hearings. It was only when a con-
struction engineer was named as an
arbitrator that the matter was resolved
in the next two hearings.
He also says that lawyers in India are
not dedicated to arbitration issues, and
that they take up the assignment as
something additional to the regular cou-
rt cases they handle. This is why many
lawyers want the arbitration hearings to
be after 4 pm. Justice Rekha Sharma,
who has taken up arbitration assign-
ments after her retirement from the
Delhi High Court, concurs. She says that
this impedes the pace of hearings.
Banerjee agrees with the need to
move away from retired judges being
appointed arbitrators, but he is opti-
mistic that change is bound to happen
as the number of arbitration cases rise,
and there are not enough retired judges
to man the arbitration tribunals. He
thinks then the lawyers will take over
as arbitrators.
Neeti Sachdeva, registrar and secre-
tary general of the MCAI, says that her
institution has a training programme for
young lawyers in arbitration and it wou-
ld soon create a pool of experts who
would ease the working of the system.
She also emphasises the need to move to
institutional arbitration and away from
ad hoc arbitration. The difference is this.
Most commercial agreements nowadays
have an arbitration clause. When the
partners disagree, they approach a
OrganisationslikeMCIAandICA
wantdisputantstoapproach
arbitralinstitutionswhichwill
providethearbitratorsfroma
panelofretiredjudges,lawyers,
businesspersonsandexperts.
FACILITATING THE PROCESS
A seminar on international arbitration
organised by industry body FICCI in
Gurugram. FICCI also gave space to
ICA for its operations

court citing the arbitration clause, and
the court appoints an arbitrator. In
some agreements, each of the partners
names its own arbitrator, and the two
arbitrators then choose a third one, who
will preside over the arbitration.
But organisations like MCIA and
ICA want disputants to approach arbi-
tral institutions which will provide the
arbitrators from a panel of retired jud-
ges, lawyers, business persons and expe-
rts, and also provide the physical infra-
structure to hold the proceedings of ar-
bitration. The secretarial staff will pro-
vide the support in preparing the arbi-
tration verdicts and other paper work.
Of course, there will be a charge for
services and there is a tariff list. It is a
lucrative option as well. Though arbitra-
tion institutions are not-for-profit orga-
nisations, they provide services with the
promise of concluding matters expedi-
tiously and efficiently, and they collect
the user-charges as it were.
SLOW EVOLUTION
There are arbitration institutions and
traditions in India which have evolved
slowly in the last half-century and so.
For example, the ICA was established in
1965 after a Government of India team
toured other countries and prepared a
report and recommended the setting up
of an arbitration centre.
The ICA was supported by the gov-
ernment but it was recognised that to be
credible it had to remain at arm’s length
from the government. The ICA was
given space by the Federation of Indian
Chambers of Commerce and Industry
(FICCI), and the support of FICCI has
proved invaluable, says Sengupta. From
1997 onwards, the ICA has become self-
sufficient and it does not receive finan-
cial assistance from the government.
An interesting view of the Indian
arbitration market is to be found in the
decision of the London Court of Inter-
national Arbitration (LCIA), which shut
off its special offering of LCIA India ru-
les in June 2016. The LCIA India rules
were formulated in 2009 with the hope
of serving the Indian clientele and their
specific needs.
The statement said: “…after six years,
it has become apparent that Indian par-
ties are equally content to continue
using the LCIA Rules and there are
insufficient adopters of LCIA India
16 May 15, 2017
In June 2016, the London Court of
International Arbitration awarded dam-
ages of $1.1 billion to DoCoMo because
the Tatas could not find buyers for the
26.5 percent stake when the Japanese
company wanted to exit. RBI had object-
ed to the payment, but the Delhi High
Court overruled the objection in an
order last week. But the Court asked
Tata Sons to seek the clearance of
Competition Commission of India.
Singapore’s Arbitration Tribunal had
imposed a penalty of `2,562 crore on
Ranbaxy in the dispute with Japanese
pharma major, Daiichi Sankyo. The
Japanese company has moved the Delhi
High Court for enforcement of the arbi-
tration award. Ranbaxy is arguing that
Indian law does not provide for "conse-
quential changes" and also that Daiichi
Sankyo had since made monetary gains
by selling its Ranbaxy shares to Sun
Pharma.
The London Court of International
PastbattlesProminent arbitration awards
involving Indian companies
(L-R) Shivinder and Malvinder Singh of
Ranbaxy
“Hardly a conducive atmosphere ”
Harish Salve, a chartered accountant who
turned to law, is actively engaged in arbitration
cases in London and Singapore. He is one of
the few senior Supreme Court lawyers who is
an arbitrator at the Singapore International
Arbitration Centre. He also volunteers to be an
arbitrator in emergency cases
Is the institutional framework for arbitra-
tion in India in place?
In theory there is an institutional frame-
work. But unlike Maxwell Chambers (in
Singapore) or the IDRC in London, there
is no facility in which arbitration hearings
can be held. Five star hotels are not
convenient venues. There are no facili-
ties for “live notes” (live transcription of
oral hearings) which is a given in all
international arbitrations.
What holds back India from emerging an
international arbitration hub?
Lawyers do not take arbitrations seri-
ously. Arbitrations go on endlessly—
adjournments are asked for and gran-
ted for the asking. If the arbitrators are
strict, the courts intervene: Hardly a
conducive atmosphere for arbitrations.
I do not see—in the short-term—
India becoming a relevant centre for
arbitrations.

clauses to justify a continuation of the
LCIA India Rules as a separate offer-
ing. This situation is not expected to
change in the near term. Accordingly,
the LCIA has concluded that the best
way for it to serve the Indian market is
to do so from London, as it has tradi-
tionally done.”
GLOBAL STANDARDS
This means that Indian companies are
content to use international rules and
norms for arbitration as set out by the
LCIA. This would imply that Indian
arbitral institutions will have to provide
global standards for domestic as well
as foreign companies in India to attract
those seeking settlements of commer-
cial disputes.
The Arbitration and Conciliation
Amendment Act of 2016 has now man-
dated through Section 29A that arbitra-
tion should happen in a year’s time, and
that it could be further extended by six
months. Senior Supreme Court lawyer
Gautam Mukherjee thought that this
was good and that it will help speed up
the proceedings.
Two persons disagreed. Justice
Rekha Sharma felt that it was too short
a time in which to settle a matter, and
felt that the initial period should be 18
months, and the extension could be for
another six months.
Justice AP Shah, former chairman
of the Law Commission, in his speech
Arbitration had asked construction major
Unitech to pay $300 million to Cruz City
1 because the company and its sub-
sidiary refused to buy shares of Mauri-
tius-based Cruz City 1’s Cyprus-based
partner Kerrush according to an agree-
ment between them. Cruz City approa-
ched Delhi High Court for enforcement
of the arbitration award. Unitech is argu-
ing that paying an assured return to a
foreign partner violates the Foreign
Exchange Management Act. The Court
rejected Unitech’s contention and said
the London arbitration tribunal's award
did not go against public policy in India.
The Permanent Court of
Arbitration at The Hague has ruled
against India and in favour of Devas
Multimedia, which had entered into
an agreement with Antrix Corpo-
ration, the commercial arm of ISRO.
A 2011 draft audit report found
irregularities in the deal between
Antrix Corporation and Devas,
which involved Antrix leasing 70
Mhz of S-Band to Devas for 12
years, in return for upfront payment
of $30 million. The deal was
scrapped because of political furore
over the deal.
The ISRO-Antrix deal landed in legal
dispute
AN EMERGING HUB
The Nani Palkhivala Arbitration
Centre in Mumbai

at the Ninth International Arbitration
Conference at the Nani Palkhivala
Arbitration Centre in Mumbai on
February 18, 2017, said: “Section 29A
has had some positive impact - because
of the stipulated timelines, arbitrations
are moving quickly. Arbitrations must
move faster, but the principle that ‘final-
ity is good but justice is better’ is also
relevant. In complex cases, a tribunal
will need substantially more time than
provided to conclude the matter.” It was
during his tenure as chairman that the
246th Law Commission Report recom-
mended changes in the Arbitration and
Conciliation Act, 1996.
Justice Mukul Mudgal also feels
that Section 29A is unrealistic. He says
that the one-year timeline works if
the period of preparation and sub-
missions is excluded. One year
should be the time allotted for
actual pleadings. He says the
Delhi Arbitration Tribunal follows
this norm and it works well.
Though international commer-
cial arbitration is the dominant
note in discussions about arbitra-
tion and arbitral institutions, arbi-
tration seems to be gaining in the
country away from the arc-lights as
it were. Justice Shyam Kishore
Sharma, who is now the Lokayukta
in Bihar, was heading the Bihar Arbi-
tral Tribunal, which was set up eight
years ago. He was the second head of
the Tribunal. He expressed great satis-
faction with the number of disputes he
had been able to resolve as an arbitra-
tor, which usually involved construction
companies. He said that he was able to
solve 300 to 350 cases in a span of nine
months to a year.
UNIVERSAL NORMS
He felt that the Indian arbitration sys-
tem is satisfactory, but he was not com-
placent. He said that there is need for
evolving to meet global standards.
Arbitration is a general norm in com-
mercial disputes, but the norms and ins-
titutions are yet to establish themselves
and command universal consent. In
many cases, one of the disputing parties,
unhappy with the arbitration award
comes back to the courts. The courts
have refused to intervene because of the
arbitration clauses that were written
into the agreements. In a recent case
been the Union of India and Reliance
Industries, the Union of India, unhappy
with the arbitration tribunal in London,
appealed against it in Indian courts.
Paying attention to the arbitration
clauses in the agreement between the
parties, the Supreme Court Bench com-
prising Justices AK Sikri and RF
Nariman said in the judgment delivered
on September 22, 2015, that if the par-
ties had chosen London and the English
Arbitration Law, then it cannot be chal-
lenged by invoking the Arbitration and
Conciliation Act of 1996.
There is ample case law in the Supre-
me Court that has emerged over the last
decade and more with regard to arbitra-
tion matters, and it points out to issues
of jurisdiction. The tendency to chal-
lenge arbitration awards in the courts
will have to lessen if arbitration is to
become the norm.
The other important issue that co-
mes up is whether India needs compet-
ing arbitration institutions given the
large size of the country’s economy.
Sachdeva of MCIA is of the firm view
that not competition, but credibility, is
the answer. She refers to LCIA, which
commands the respect of disputants
beyond British borders. Sengupta of
ICA also emphasises the issue of credi-
bility but he thinks that competition
among arbitration institutions need not
be a bad thing.
Mumbai and Gurugram can be arbi-
tration hubs but they need not necessar-
ily compete with each other. What will
be of greater importance is to gain
acceptance in the country and abroad
for its competency and reliability.
18 May 15, 2017
JusticeAPShahbelievesthat
becauseofstipulatedtimelines,
arbitrationsaremovingquickly,
butsubstantiallymoretimeis
neededtoconcludethematter.
JusticeMukulMudgalsaysthat
theone-yeartimelineworksifthe
periodofpreparationisexcluded.
Oneyearshouldbeallottedfor
actualpleadings.
NeetiSachdeva,
registrarand
secretarygeneral,
MCAI,emphasises
theneedtomove
toinstitutional
arbitrationand
awayfromadhoc
arbitration.

Spotlight/ Justice Karnan
20 May 15, 2017
ARROGANT DEFIANCE
Justice Karnan at his Kolkata
residence from where he has
been issuing notices to
Supreme Court judges
Judge Unaccountable
HE controversial case of
Justice CS Karnan of the
Calcutta High Court is
being keenly followed by
the judicial world, not
quite because of Justice
Karnan per se but because there is curi-
osity about what the Supreme Court can
really do to address Justice Karnan’s
intransigence which has brought to light
the inadequacies that exist within the
judicial system. And this is what the go-
vernment seems interested in exploiting.
Justice Karnan, who had sent a letter
to the Prime Minister, with allegations
of corruption against 20 judges of the
Supreme Court and high courts, has had
a running battle with Chief Justice of
India, JS Khehar, and six other judges of
a constitution bench that has been
formed to tackle his allegations. This
fight is on for over three months now.
Inadequacieswithinthejudicialsystemwhichlimitactionagainstsittingjudgesiswhat
JusticeCSKarnanisexploiting.ShouldtheapexcourtignorehimtillheretiresinJune?
By Sujit Bhar
T

“Itisclearthathe
(JusticeKarnan)cannot
betakenseriously.Heis
retiringinJune.
Otherwiseitshouldhave
beenimpeachment.What
purposewillbeservedby
puttinghiminjail?Heis
notinasaneposition.”
–Senioradvocate,
KKVenugopal
“OnFebruary8,
wehaddirected
himtoforthwith
refrainfromany
administrative
orjudicialwork.So
whathehasdone
afterthatorder
iscontemptuous.”
–ChiefJusticeofIndia,
JSKhehar
“Heisajudgeandwas
doingwork.Hecannot
saythatonedayheis
finenextdayheisnot.
Thecourthasbeen
morethanpatient.If
yourlordshipsdon’t
actnowwhatwill
happenlater?”
–AttorneyGeneral,
MukulRohatgi
selection process might have been
faulty? This is the case of the sanctity of
the current Memorandum of Procedure
(MoP) that the judiciary and the execu-
tive are warring over.
ACRIMONIOUS JUDGE
One needs to look back at some events
at the Madras High Court, to get a
clearer picture after Karnan’s elevation
from a lawyer on the civil side to judge
on March 30, 2009. In a little over two
years, he had hit out at brother judges in
a complaint to the National Commission
for Scheduled Castes (NCSC).
In November 2011 he complained
about how he was being harassed and
victimised, citing an example of a
judge who supposedly “crossed his leg
deliberately touching mine” at a mar-
riage function.
There is no quota route for High
Court judges. They move up on merit. If
Justice Karnan (a Dalit) felt slighted, it
was either a genuine case of discrimina-
tion, or the seeds of a persecution com-
plex were just germinating within.
Meanwhile, Justice Karnan, though
stripped of all his judicial powers, has
been running a “court” at his official res-
idence in Kolkata from where he has not
only “summoned” the seven judges and
but has also issued an “order” which
bars them from leaving the country. The
entire farce has now come to such a pass
that the Supreme Court bench has orde-
red a medical test to prove his sanity.
Karnan has so far stubbornly refused to
submit to this.
TREADING SOFTLY
To be fair, the constitution bench has
dealt with Justice Karnan with kid
gloves. But while its patience is wear-
ing thin, Attorney General Mukul
Rohatgi’s insistence for immediate act-
ion is bringing the executive-judiciary
tussle into focus as well. The bench is
treading softly.
If one follows the arguments in
court relating to the case, it is clear
that the constitution bench, headed by
Chief Justice JS Khehar, has had a
tough time taking a position. The bench
asked for advice from Rohatgi, but if his
line of argument was to be considered,
the bench should start firing on all
cylinders pushing towards Karnan’s
final punishment.
Senior advocate of the Supreme
Court, KK Venugopal, gave an alterna-
tive picture. Venugopal, who had
appeared in a related matter at the
Madras High Court (which was Justice
Karnan’s original court before being
transferred to Kolkata) had this submis-
sion to make before the Supreme Court
on May 1: “It is clear that he (Justice
Karnan) cannot be taken seriously. He is
retiring in June. Otherwise it should
have been impeachment.What purpose
will be served by putting him in jail? He
is not in a sane position. Adjourn the
matter post his retirement. Look at his
letters, they are so atrocious. It shows he
is not in a position to think.”
Venugopal was reacting to Rohatgi’s
comment in court after Justice Karnan
failed to present himself on May 1.
The Attorney General had said: “He is
not present and he has been passing
orders against hon'ble judges after the
last hearing.”
To that the Chief Justice Khehar
commented: “On February 8 we had
directed him to forthwith refrain
from any administrative or judicial
work. So what he has done after that
order is contemptuous. His conduct is
exfacie contempt.”
When Rohatgi insisted:“His mental
balance is lost,” the Chief Justice made
an interesting and pertinent point. He
said: “If it is so, he is not responsible.”
However, Rohatgi had countered:
“He is a judge and was doing work. He
cannot say that one day he is fine next
day he is not. Calling SC judges
accused... The court has been more than
patient. If your lordships don't act now
what will happen later?”
Does that establish that Justice
Karnan was actually conducting normal
work before this incident? Or does it
tend to establish that the judiciary has
not been able to separate the wheat
from the chaff and that the primary

for the post of judges, Karnan barged
in, complaining of unfair selection of
names. Justice R K Agarwal, who was
at the time Chief Justice of the court,
had written to the then Chief Justice of
India, P Sathasivam, saying: “Justice
Karnan barged into my chambers hurl-
ing a volley of invectives… In fact, some
of my brother judges are afraid of
him...” The plea to transfer Karnan to
another court was raised, especially
with a lawyers’ boycott looming.
DALIT CARD
Justice Karnan was still wielding the
Dalit card. Though his case has become
a bit too much of an embarrassment for
the judiciary. The Dalit card had been
wielded before as well—during the
impeachment of Supreme Court Judge
V Ramaswami in 1993. The impeach-
ment was defeated in Parliament when
DMK leaders claimed the judge was
being victimised because he was a Dalit.
The judge resigned.
Nobody had even thought of
impeaching Karnan, but the frustration
within the judiciary was growing. In
2015, Karnan’s persecution complex
started playing up again. He accused
Justice Sanjay Kishan Kaul, then Chief
As per some published reports, howev-
er, there is no dearth of precedents of
caste-related discrimination within the
Tamil Nadu judiciary. However, this
does not in any way point a finger
towards the overall selection process.
Perhaps, the caste issue would have
been tackled with some seriousness,
had Justice Karnan not delivered some
rather controversial judgements there-
after. In June 2013, Karnan ruled that a
couple, not married but living together,
will be considered married once they
have pre-marital sex. He also ruled that
the “husband” cannot marry someone
else without getting a court decree of
divorce from the “wife.” The Supreme
Court threw out this judgement a year
later. Judges on the apex court bench
which dismissed Karnan’s ruling were
Justices BS Chauhan and Jasti
Chelameswar.
There has been little hiatus between
Karnan’s media-attention grabbing
actions. In January 2014, while a divi-
sion bench of the Madras High Court
was hearing a PIL on recommendations
UNPRECEDENTED MOVE
In a dubious first, CS Karnan stayed his
own transfer to Calcutta High Court
22 May 15, 2017
P
eter Ramesh Kumar is Justice
CS Karnan’s lawyer. Kumar
had been practising with the
Madurai bench of the Madras High
Court. He says that he was also
president of Madurai Bar Association
for eight years, till 2015, when “an
RSS-backed group took over the
reins and I, was booked for con-
tempt. I had to spend six months in
jail, just because I refused to join the
RSS-backed side.”
Kumar spoke to India Legal over
phone from Madurai. Two things he
said are pertinent. He believes Just-
ice Karnan has no way out but to sp-
end six months in jail and pay a fine
for contempt. “After June 11, his retir-
ement, all this will come together,” he
says. “Till then, Karnan will fight.”
The second point that he special-
ly emphasises—he says his client
Justice Karnan also believes this—is
on the RSS links within the judiciary.
“Some of the 20 judges that Karnan
had complained about in his letter to
the Prime Minister have RSS links,”
says Kumar. When it is pointed out
that this was a rather serious charge
to level, Kumar says “This is the
truth, and you can quote me on this.”
So what about the Dalit angle and
the caste-hate angle that Karnan has
been harping all along? “That is cer-
tainly there but it is not possible for a
judge to paint the top judiciary in
RSS colours in public. Hence he took
the Dalit angle.”
Adds Kumar: “RSS-backed
lawyers in Madurai forced several
renowned lawyers out of their jobs.
They have spread their tentacles in
the judiciary as well. Karnan wanted
to tell this to the Chief Justice in his
chambers but that was not possible.”
Karnan did meet Chief Justice JS
Khehar, but no such discussion sup-
posedly took place.
“Tillhisretirement
Karnanwillfight”
Sujit Bhar spoke to Justice CS
Karnan’s lawyer
Spotlight/ Justice Karnan

Justice of Madras High Court, not only
of harassing him because he was a Dalit
but also of assigning him “insignificant
and dummy” cases. Karnan had called
the Chief Justice “corrupt”.
In February, soon after the Supreme
Court had transferred him to the
Calcutta High Court, Justice Karnan
“stayed” the order of his own transfer. It
would be futile to look into the rule
books for a precedent, because there is
none. It was an act not anticipated by
the writers of the constitution, and nei-
ther by the Supreme Court. The apex
court bench of Justices JS Khehar and
R Banumathi lifted this stay quickly.
Karnan had exploited the limitations of
Indian law when it comes to acting
against judges of the higher judiciary.
The intellectual instability point had
not arisen till recently. It was Justice
Karnan himself who provided this
excuse to the top court. When he had
to move to the Calcutta High Court, he
sent a letter of apology to Justices
Khehar and Banumathi, saying he had
issued an “erroneous” stay order on
his transfer because of his “mental
frustration resulting in the loss of my
mental balance.”
Perhaps realising that the Dalit card
that he had used all along now has its
limitations he had turned to mental
frustration as a ploy. Remember that the
DMK’s strength has been diluted within
Tamil Nadu since the times of Justice
Ramaswami. With DMK leader
Karunanidhi too old to act, his son
Stalin is today no more than a regional
itch for the central government. And
AIADMK supremo Jayaram Jayalalithaa
is no more. The Dalit power base in the
state has dissipated.
Justice Karnan case is one that just
might be a blot and may push the
government’s case vis-à-vis appointment
of judges. That politicians want a bigger
say in the selection of judges is not
news. The judiciary is still at logger-
heads over the MoP and Karnan has
possibly only added to its woes.
The May 1 interactions between the
Attorney General, the Chief Justice and
senior advocate Venugopal presents a
very telling picture—a picture in which
Justice Karnan is in the background of a
huge canvas. Whether he is made an
example out of (or not) is being keenly
watched by the government as well as
the legal fraternity.
Possibly Venugopal’s advice of letting
things be till Karnan retires in June was
a wise one. Or maybe the top rung of the
judiciary wants to prove its supremacy
in all matters judicial. If and when
Justice Karnan pays the price of his
transgressions, it would mean more
than removing the proverbial fly from
the ointment.
“JusticeKarnanbargedintomychambers
hurlingavolleyofinvectives…Infact,
someofmybrotherjudgesare
afraidofhim...”
—FormerMadrasHCChiefJustice
RKAgarwal,inanotetothenCJI,
PSathasivam
O
n May 1 the Supreme Court
ordered the medical examina-
tion of Justice CS Karnan. The
Supreme Court’s constitution bench
headed by Chief Justice JS Khehar, ord-
ered: “Press statements made by him
(Justice Karnan) indicate that he may
not be in a position to defend himself in
his current position and we, therefore,
consider it in the fitness of things that
he be medically examined. We direct a
board of doctors be formed and exam-
ine him and submit the report. The com-
mittee shall examine him on May 4. The
DGP of West Bengal is to form the team
to assist the medical board to carry out
the orders of this court.” The court also
ordered that all “judgments” by Justice
Karnan will be treated as invalid.
When the police and medical team
arrived at his residence on May 4,
Justice Karnan simply refused to under-
go any medical examination. What he
gave in writing to the doctors was: “I
declined to avail medical treatment
since I am quite normal and have a sta-
ble mind. Further my strong view about
the Supreme Court order (is that) it
amounts to insult and harassment
towards the judge (myself).” The other
curious point was about “guardian con-
sent”. He said he doesn’t have that “as
my family members are not here.”
The Mental Health Care Act, 2017 S
2(1)(i) says: “Informed consent” means
consent given for a specific intervention,
without any force, undue influence,
fraud, threat, mistake or misrepresenta-
tion, and obtained after disclosing to a
person adequate information including
risks and benefits of, and alternatives to,
the specific intervention in a language
and manner understood by the person.”
A Supreme Court verdict in May
2010 (Selvi vs State of Karnataka) was
explicit that no test can be forced upon
a person, not even a polygraph or
narco-analysis test. “We hold that no
individual should be forcibly subjected
to any of the techniques in question,
whether in the context of investigation in
criminal cases or otherwise. Doing so
would amount to unwarranted intrusion
into personal liberty.”
Againstthelaw
Can Justice Karnan be subjected
to a test?

Politics/ Congress Party/ Sonia Gandhi’s Leadership
24 May 15, 2017
HY has Congress Pre-
sident Sonia Gandhi
moved back to centre-
stage ever since her
return from New York
last month after her
medical check-up? It is clear that she is
desperate to control the damage to the
party and keep it united as also to pro-
vide a challenge to the BJP.
Congress old-timers, who want Sonia
and not Rahul to take charge when the
party is sliding day by day, are relieved.
Punjab Chief Minister Amarinder Singh
echoed these feelings when he said
recently: “The Congress will be happy if
Sonia Gandhi decides to continue as
party chief for another term, but she has
to take a call.”
Other senior leaders have similar
thoughts and while some have aired this
publicly, others do so privately. That
things have undergone a subtle shift is
evident from the meetings held at 10
Janpath over the past few days with
Sonia presiding over them and Rahul
sitting in. This is unlike the old days
when she used to direct party leaders to
Rahul for a decision.
OLD DAYS
The present situation reminds one of
December 1997 when Sonia came out of
her mourning period and took over the
party leadership from Sitaram Kesri.
She not only checked the erosion but
also revived the party and brought it to
power in 2004. She remained the power
behind the throne and made Man-
mohan Singh the prime minister. The
party came back to power in 2009 on
the back of high growth and excellent
laws such as the Right to Information
and social welfare programmes.
Captainof
theShip!
EvenastheCongressseesoneofitsworst
slidesinrecenthistory,SoniaGandhiisback
inactionandhasinitiatedareshufflekeeping
inmindassemblyelectionsinsixstates
By Kalyani Shankar
W

But the Congress began to decline
after 2010 due to various scams such as
2G and CWG. She made Rahul the vice-
president of the party and he was taking
most decisions since 2013. After the dis-
astrous results of the 2014 Lok Sabha
polls and the subsequent assembly polls,
the slide continued. This even led to
ludicrous situations with the media
claiming that one Vishal Diwan, an
engineering student from Hoshangabad
in Madhya Pradesh, has approached the
Guinness Book of World Records to
enlist Rahul’s name for losing as many
as 27 elections in the past four years.
Despite all the push from his mother
and the party, Rahul has not delivered.
He now has few options--perform by
becoming a 24/7 politician, quit his
political ambitions or see the party per-
ish. Obviously, Sonia wants her son to
succeed and has realised that perhaps
he needs more time.
ROLE OF BUFFER
Another reason for Sonia’s re-entry is
the growing tension between the old
guard and Rahul’s young team which
probably needs a buffer. And who better
than Sonia to play that role? The old
guard, apprehensive about their future
in the new dispensation, has confidence
in her. The UP poll debacle has created
fresh doubts in their minds about
Rahul’s capabilities and therefore, they
are looking to Sonia for protection.
Many senior leaders like ND Tiwari
and SM Krishna have left the Congress
to join the BJP, questioning Rahul’s
style of functioning. There are others in
the queue as the BJP is willing to emb-
race them. Even as the murmurs against
Rahul grow, assembly elections due in
six states over the next 18 months, inclu-
ding Gujarat and Karnataka, are worry-
ing. The prospects appear dim in Karna-
taka, the only big state where the Cong-
ress is ruling, apart from four small
states and two in coalitions. Sonia, who
had kept the seat warm for her son since
1998, naturally would not allow this dis-
content to reach a climax.
Sadly, the party’s status quo culture
continues even three years after its
worst debacle in 2014. It had not fared
well in subsequent assembly polls either,
except in Bihar. UP was a disaster,
though winning Punjab gave some hope.
This goes to show that the party is con-
fused about its poll strategy—whether to
go alone or find allies to fight the elec-
tions. It has tried both and failed.
There is an existential and
leadership crisis both at
the central as well as state
levels. Infighting and fac-
tionalism are at their
worst. Those whom
Rahul had put in impor-
tant positions have all turned
out to be pygmies. So, the moth-
er-son duo realise that it is
imperative to put the house
in order.
CONGRESS RESHUFFLE
Sonia now has decided to
reshuffle the party. This
was evident when she
took away the charge
of Goa and Karnataka
from senior Congress general secretary
Digvijaya Singh. He was criticised for
not being able to form the government
in Goa despite the Congress emerging as
the largest party in the recent assembly
polls. The charge has now been given to
KC Venugopal, a leader close to Rahul.
She has also got rid of two general secre-
taries–Gurudas Kamat (old guard) and
Madhusudan Mistry (a Rahul loyalist).
Interestingly, former Rajasthan chief
minister Ashok Gehlot has been given
charge of Gujarat. More changes are
expected but the trend seems to be to
give opportunities to the younger lot but
at the same time, retain senior leaders
who have delivered. Sonia will remain
the captain of the ship, while Rahul will
look after strengthening the states.
Another factor in Sonia taking con-
trol is the opposition space which the
Congress seems to have ceded to other
parties. With a weaker Congress, other
parties like the JD (U) and Trinamool
The Congress effected organisa-
tional changes in several state
units on May 4. AICC secretary and
former Rajya Sabha MP Avinash
Pande is now the general secretary
for Rajasthan, replacing Gurudas
Kamat. He will be assisted by Vivek
Bansal, Quazi Nizamuddin, Deven-
der Yadav and Tarun Kumar.
In Punjab, Sunil Jakhar is the new
president, in place of Captain
Amarinder Singh, who took over as
chief minister. In Uttarakhand, where
the Congress fared badly in the
assembly elections, Pritam Singh
has replaced Kishore Upadhyay
as president.
There are also plans to appoint
new presidents in Madhya Pradesh,
Chhattisgarh, Bihar and Kerala
among other states, according to
media reports.
Newfacestakecharge

Politics/ Congress Party/ Sonia Gandhi’s Leadership
26 May 15, 2017
Congress are taking the lead in chal-
lenging the BJP.
Sharad Pawar had been blunt in say-
ing that Rahul should get “serious” if he
is keen to emerge as an alternative to
the “hard working prime minister
(Modi)”. RJD chief Lalu Prasad Yadav
reportedly said: “Even now if they put
Priyanka (Gandhi) forward, the
Congress will see a dramatic change.
Rahul will have to go deeper in politics
and in his understanding of issues. The
Congress does not understand why
some core members of the party have
defected. Because he doesn’t meet peo-
ple, doesn’t give them time, core votes
have been lost.”
When Congress managers pushed
Rahul to hold a meeting of leaders of
the opposition last year, the response
was poor. As a tried and tested leader,
Sonia is now trying to become a rallying
point for the opposition.
The other parties would be willing to
unite under her leadership as they did
in 2004 to oust the Vajpayee govern-
ment. Therefore, it is not surprising that
leaders like Sharad Pawar (NCP), Sita-
ram Yechuri (CPI-M), Lalu Prasad
Yadav (RJD), Mamata Banerjee
(Trinamool Congress), Nitish Kumar
(JD (U)), D Raja (CPI) and Mayawati
(BSP) to name a few, have responded
to her invitation to hold talks for a com-
mon opposition candidate for the
upcoming presidential and vice-presi-
dential polls. The main objective is a
token contest as the BJP needs just
25,000 votes in the presidential polls
and has enough to elect the vice-presi-
dent too.
While all this is going on, the Cong-
ress is set for a makeover in October
when its presidential polls are sched-
uled. Sonia has led the party for a record
number of years from 1998. It may be
no surprise that the party might ask
Sonia to continue, while Rahul is still
making up his mind. The only hitch
could be her failing health.
KCVenugopal,LokSabhaMP
fromAlappuzha,Kerala,and
closetoRahulGandhi,has
replacedDigvijayaSinghas
Karnatakaincharge.
SharadPawaroftheNCPhas
respondedtoSonia’sinvita-
tiontoholdtalksforacom-
monoppositioncandidatefor
thepresidentialandV-Ppolls.
RJDchiefLaluPrasadYadav
hassaidthatRahulGandhi
willhavetogodeeperin
politicsandinhis
understandingofissues.
Inarecentreshuffle,
SoniaGandhigotridof
generalsecretary
GurudasKamat(above)and
MadhusudanMistry.
WRONG CALCULATION
Former UP chief minister and SP president
Akhilesh Yadav (far right) with wife
Dimple and Congress vice-president Rahul
Gandhi during a road show in Varanasi

Briefs
BB Rajendra Prasad, an income tax
commissioner in Mumbai, and
Pradeep Mittal, managing director of
Essar Group, have been
arrested by the CBI for
their alleged involvement
in a bribery case. Prasad,
Commissioner of Income
Tax (Appeals), has been
accused of providing a
favorable order in a case
pertaining to Balaji Trust
in which Essar Investments Ltd is a
trustee. “It was alleged that the
Commissioner of Income Tax (Appeals-
30), Mumbai, had recently passed an
order in an appeal matter favouring a pri-
vate trust whose trustee is a private com-
pany based in Mumbai.
For giving this favourable
order, he had allegedly
demanded a bribe amount
of `2 crore,” the CBI men-
tioned in a statement. The
CBI has seized graft money
amounting to `1.5 crore
so far.
Essar MD, I-T official
held for bribery
The Election Commission has not
found merit in a petition seeking
disqualification of deputy chief minis-
ter Manish Sisodia as an MLA for
allegedly holding office of profit as
deputy CM. In a recommendation
sent to President Pranab Mukherjee
recently, the Commission said that
Sisodia could not be disqualified as an
MLA for being deputy CM. The
Commission is said to have recalled
that several states have posts of deputy
chief minister and that could not be
construed as an office of profit. Last
year, a BJP leader, Vivek Garg, had
approached the President with a peti-
tion seeking Sisodia’s disqualification.
As per procedure, the matter was
referred to the EC.
Sisodia not holding office
of profit: EC
The union cabinet has passed an
ordinance to amend the Banking
Regulation Act which will enable RBI
to act against loan defaulters and
speed up the NPA (non-performing
assets) resolution process. The govern-
ment and the RBI have already listed
top 50 loan defaulters against whom
action can be taken. NPAs have been
on the rise in recent years and in
2013-15, a total of `1.14 lakh crore of
bad loans have been written off by the
state-owned banks. The amendments
will also enable the RBI to set up mul-
tiple oversight committees to deal
with NPAs.
Ordinance to arm RBI
against loan defaulters
With sirens replacing the red bea-
cons to preserve the VIP culture
in Telangana, state chief secretary
Sekhar Prasad Singh had to issue an
order to mute them in the thorough-
fares of the state capital. All depart-
ments have been asked to hand over
beacons to the transport department.
Singh directed all district collectors and
revenue officials to submit a compliance
report. The Centre Motor Vehicle Rules
do not provide for use of sirens or hoot-
ers except on emergency vehicles.
Stringent action will be taken by the
transport department if rules are bro-
ken. The Hyderabad police have been
asked to track when and where sirens
are being used.
Madhya Pradesh has become the first state to offi-
cially change its fiscal year from the April-March
financial cycle to a January-December one. “The state
cabinet has decided to change the financial year to
January-December from April-March. The state budg-
et will be tabled in December-January while the finan-
cial closure will be done in December every year,” said
Madhya Pradesh legislative affairs and public affairs
minister Narottam Mishra. The next budget of the
state is supposed to be presented in December 2017 or
January 2018. The decision came a week after the
meeting of NITI Aayog in which Modi pitched for a
change in the fiscal to January-December to match the
agricultural cycle of the country.
MP first state to change fiscal year
—Compiled by Ratnadeep Choudhary
Telangana bans use of
sirens by VIPs
Twitter: @indialegalmedia/ Website: www.indialegallive.com
MP Chief Minister Shivraj
Singh Chouhan

Courts/ “Worst Judgment”
AnorderpassedbyasessionscourtinTamilNaduhasinvited
anindictmentfromtheMadrasHighCourtwhichcalleditthe
“worstinrecenttimes”forconvictingfivepersonstolife
imprisonmentbasedontheirtribe
By R Ramasubramanian in Chennai
28 May 15, 2017
N one of the rarest of rare cases
in India’s legal history, a division
bench of the Madras High Court
recently released five life convicts
who had been sentenced for mur-
der and looting a temple hundi.
A bench of Justices S Nagamuthu and
N Seshasayee also passed severe stric-
tures on the Kancheepuram district ses-
sions court which handled the said case
by stating that their judgment was the
“worst in recent times”. The High Court
ruled that “in our little experience, we
have not come across this kind of
judgment”. Let this be the last judgment
that has ever been written on communal
considerations, the bench solemnly
declared in its verdict.
The sessions court had awarded life
imprisonment to the five accused in a
temple burglary case in 2010 and ruled
that they were from a particular tribe
called “Irulars”, known for their snake-
capturing skills and nomadic lifestyle.
However, today, they are mostly farm
workers. Irulars were even classified as
a criminal community during the British
period and their main occupation of
stealing and dacoity was cited as the
I
VICTIMS OF SOCIETY BIAS
File photograph of the Irular people,
listed among the Scheduled Tribes
Coloured by
Prejudice
www.indiansnakes.org
wikimedia.org

trial court to conclude in the instant
case that these accused had committed
murder and robbery because they
belong to the said community. Curiously
and shockingly, he has convicted all the
accused not on any legal ground but on
mere surmises. The judiciary cannot
afford to decide the cases by tracing the
criminal activities of the forefathers of
the accused. No court of law can stigma-
tize a community as a whole. Proof
beyond reasonable doubt of the guilt of
the accused should be reached on the
basis of the evidence on record. Any
finding of the guilt based on no evidence
but on communal considerations is
unconstitutional. In the instant case, the
trial court has traced the socio economic
as well as the communal background of
the accused and had come to the conclu-
sion that these accused have committed
the crime solely because they belong to a
particular community.”
COMMUNAL CONSIDERATION
The bench then made the stunning
observation in the controversial case:
“This judgment is a classic example as
to how a court of law in this country
should not pen down a judgment. In our
little experience we have not come
across this kind of worst judgment. Let
this be the last judgment ever written
reason for labelling them so by the
Britishers. But after Independence, the
government of India denotified them
and the tag of “criminals” was removed.
DENOTIFIED COMMUNITY
It all began, according to the prosecu-
tion, when five persons—Kumar, Mari,
Raja, Selvam and Palani—broke into the
Ponniamman temple at Thirumangalam
Kandigai village in Kancheepuram dis-
trict on January 2, 2010. While they
were looting the temple hundi, Subra-
mani, a guard there, raised an alarm.
The gang attacked him and killed him.
After five-and-a-half years, on July 31,
2015, the trial judge, who was also the
district sessions judge-II of Kanchee-
puram, concluded that the accused
must have committed the murder and
robbery because they belonged to a
particular community. He convicted
all five for murder and awarded them
life imprisonment.
The judge wrote this in spite of the
fact that after Independence, the
“Irular” community was denotified along
with other communities in India.
The trial court had extracted an
alleged confession from all the accused
RESTORING ORDER
The Madras High Court
ignoring the bar in Section 25 of the
Evidence Act which says: “No confession
made to a police officer shall be proved
as against a person accused of any
offence.” It concluded that all the accu-
sed together had killed Subramani with
a wooden rod and a crowbar.
This judgment was challenged by the
accused in the Madras High Court. In
its order, the High Court bench said:
“The above extractions, would go a long
way to expose the prejudice the learned
trial judge had against the people
belonging to a particular community. It
is not understandable as how a court
could presume that the people belong-
ing to a particular community will tradi-
tionally indulge in the commission of a
particular type of crime.
“It is ridiculous on the part of the
“Proofbeyondreasonabledoubt
oftheguiltoftheaccusedshould
bereachedonthebasisofthe
evidenceonrecord.Anyfindingof
theguiltbasedonnoevidence
butoncommunalconsiderations
isunconstitutional.”
–MadrasHighCourtjudgment
JusticeDHariparanthaman(left),whorecently
retiredfromtheMadrasHighCourt,said:“It’sa
greatverdict.Assoonastheorderwasoutinthe
media,IpersonallycalledupJusticeS
Nagamuthu(right)andcongratulatedhim.”wikimedia.org

out in the media, I personally called up
Justice Nagamuthu and congratulated
him. But one thing we all must bear in
our mind is that there are many com-
munal and caste feelings and prejudices
prevailing not only in sessions courts
but in every institution in India. The
division bench’s direction to the
Registry to circulate its order will surely
minimise this sort of behaviour by all
the sessions courts and lower courts in
the state.”
However, another retired judge of
the Madras High Court who didn’t
want to be named told to India Legal:
“The division bench has overstepped
in this case. If the bench wants to
acquit all the five accused, let it do so.
But in that process, it should not over-
step its limits and use several adjectives
in its judgment. To say that the con-
cerned trial court’s judgment is the
worst judgment in the judicial history
of India is not true. In fact, judicial
academies and the Supreme Court have
repeatedly said that any judgment by
any court should not destroy the car-
eer of a particular accused. There are
thousands of judgments in sessions
and high courts which were worse
than the Kancheepuram sessions cou-
rt’s judgment.”
He added that circulating both
orders to all sessions and magistrate
courts in Tamil Nadu would not make
any difference in lower courts because
the problem was more complicated.
Even lawyers had their own take on
the issue. Sundararajan, a lawyer in the
Madras High Court, said: “Sadly those
judges who belong to the oppressed
communities are failing to further qual-
ify themselves. The judicial academy
which trains judges should concentrate
more on this subject and inculcate the
great values of our constitution to them.
This problem prevails not only in Tamil
Nadu but throughout India.”
That is food for thought.
30 May 15, 2017
on communal considerations.”
The bench further said it is also not
understandable as to how the trial court
could come to the conclusion that the
traditional occupation of people belong-
ing to the particular community was
stealing. Assuming that during the
primitive period, the people were indul-
ging in thefts, it is ridiculous to con-
clude that in the instant case these
accused had committed murder and
robbery because they belong to the said
community, the bench stated.
SIDELINED COMMUNITY
The bench also expressed shock that the
trial court was surprised over the fact
that the people belonging to this com-
munity have now come to the main-
stream of society and started cutting
their hair, trimming their beards, wear-
ing full-sleeve shirts and pants.
The bench was so concerned about
this judgment and the inherent danger
it poses to all lower courts in the state
that it directed the Registry to immedi-
ately send a circular with a copy of the
judgment and its own to all principle
sessions judges in Tamil Nadu as well as
the Union Territory of Puducherry. This
was to impress upon them that in the
years to come, there should be no judg-
ment based on extraneous considera-
tions such as communal and social
background, and so on.
CASTE FEELINGS
The division bench’s order deeply divid-
ed the bar and the bench. Justice D
Hariparanthaman, who recently retired
from Madras High Court, said: “It’s a
great order. As soon as the order was
Thebenchmadethestunning
observation:“Thisjudgmentisa
classicexampleastohowacourt
oflawinthiscountryshouldnot
pendownajudgment.”
Courts/ “Worst Judgment”
The Irular tribe recently came into
prominence when the state of
Florida hired two men from this com-
munity in January 2017 to catch
Burmese pythons that were spreading
through the Everglades and invading
the area.
Masi Sadaiyan and Vadivel Gopal
were hired by the Florida Fish and
Wildlife Conservation Commission to
work closely with University of Florida
biologists and two python detector
Labrador retrievers to capture and kill
the snakes as they were preying on
native animals, some of them endan-
gered. According to the Commission,
`44,18,132 ($68,888) was paid to fly
them and their translators from India to
South Florida. They captured 13
snakes in less than two weeks; one of
the snakes was a 16-ft long female.
Fearing that the snakes would
come after the endangered wood rat
on Key Largo, then head south and
eventually reach the habitat of the
endangered Key deer, Indian expertise
was sought as native experts lacked
the skills. Kristen Sommers, head of
the Wildlife Commission’s exotic
species coordination section, told the
media: “Since the Irulars have been so
successful in their homeland at remov-
ing pythons, we are hoping they can
teach people in Florida some of
these skills.”
The snakes, which are native to
India, started showing up in the
Everglades in the 1980s and govern-
ment estimates say their numbers
increased between 5,000 and 10,000 in
the past decade.
AMomentofGlory
www.bbc.com

society where law
and order is supreme
and the citizens enjoy
inviolable fundamen-
tal human rights. But
when the incident of
gang-rape like the
present one surfaces,
it causes ripples in
the conscience of
society and serious
doubts are raised as
to whether we really
live in a civilized society and whether
both men and wo-men feel the same
sense of liberty and freedom which
they should have felt in the ordinary
course of a civilized society, driven by
rule of law.
“Certainly, whenever such grave vio-
lations of human dignity come to fore,
an unknown sense of insecurity and
helplessness grabs the entire society,
women in particular, and the only suc-
cour people look for, is the State to take
command of the situation and remedy it
effectively.”
Courts/ The Nirbhaya Judgment
N May 5, 2017, the Sup-
reme Court upheld the
Delhi High Court’s death
sentence to the four
accused—Akshay, Pawan,
Vinay Sharma and Mukesh—in the
2012 Nirbhaya rape and murder case.
The accused will file a review petition.
Here are some critical sections of the
historic judgment.
“...Justice demands that the courts
should impose punishments befitting
the crime so that it reflects public
abhorrence of the crime....
“Crimes like the one before us cannot
be looked with magnanimity. Factors
like young age of the accused and poor
background cannot be said to be miti-
gating circumstances....
“...I do not find any justification to
convert the death sentence imposed by
the courts below to ‘life imprisonment
for the rest of the life’. The gruesome
offences were committed with highest
viciousness. Human lust was allowed to
take such a demonic form....
“The present case clearly comes with-
in the category of ‘rarest of rare case’
where the question of any other punish-
ment is ‘unquestionably foreclosed’. If at
all there is a case warranting award of
PAYING WITH LIFE
FOR THEIR LUST
(L-R) Vinay, Akshay,
Mukesh and Pawan
have got death
sentence from the apex
court for the rape and
killing of Nirbhaya in
Delhi on the night of
December 16, 2012
death sentence, it is the present case. If
the dreadfulness displayed by the acc-
used in committing the gang-rape, un-
natural sex, insertion of iron rod in the
private parts of the victim does not fall
in the ‘rarest of rare category’, then one
may wonder what else would fall in that
category.... I concur with the majority in
affirming the death sentence awarded to
the accused persons....
“The incident of gang-rape on the
night of 16.12.2012 in the capital
sparked public protest not only in Delhi
but nation-wide. We live in a civilized
O
SupremeCourtupholdsdeathsentenceforNirbhayaconvicts,sayingno“mitigatingfactors”
canoutweightheviciousnesswithwhichthecrimewascommitted
RarestoftheRareIndeed
JUSTICE AT LAST: Nirbhaya’s parents at a
press conference at the Press Club of India
in Delhi following the SC judgment
Anil Shakya

Environment/ Kerala/ Land Encroachment
32 May 15, 2017
MENACING INROADS
Hotels and housing projects are
killing the beauty of the lush
green hills of Munnar
HE National Green
Tribunal (NGT) seems to
have finally lost its
patience over the issue of
land encroachments in
Munnar, the scenic hill
resort in Kerala. A suo motu notice has
been filed against the Kerala govern-
ment by the tribunal vis-a-vis the com-
mitments the state made in October
2015 to evict illegal encroachments and
constructions. The tribunal also wanted
an action taken report on the steps the
Kerala government had promised to
take to restore Munnar back to environ-
mental normalcy and free it from con-
struction clutter.
Though the NGT had in 2015 given
the state government the mandate to
step in and act against the land and
T
Munnar’sTheNationalGreenTribunalhasflayedthestategovernmentforitsinabilitytocrackdownon
theconstructionmafiablatantlygrabbinglandineco-sensitiveMunnar.
TheLeftgovernmentisaccusedofbeinghandinglovewiththebuilderlobby
By Naveen Nair in Thiruvananthapuram

told India Legal.
It was a little-known NGO, the
Munnar Restoration Society, that first
took the Munnar issue to the NGT. The
Tribunal’s October 2015 order had
directed the state government to take
steps to protect the deteriorating eco
system in Munnar. The government
filed an affidavit which had made the
Devikulam sub-collector as the nodal
officer for the eviction work at Munnar.
A few months ago, the same sub col-
lector Sriram Venkitaraman was heck-
led and abused by the local leaders of
the CPM for stepping up operations in
Munnar. Without doubt, the NGT has
suo motu taken cognizance of the events
that unfolded in Munnar over the last
few months.
There is also the line of argument
which believes that the NGT may have
lost its confidence in the state govern-
ment’s will to act in Munnar. This is
because the Munnar Mission 2—as it is
now known after the much-hyped first
attempt in 2007 failed—is all but a
damp squib.
CPM’S VESTED INTEREST
Though E Chandrasekharan, the rev-
enue minister, has expressed his com-
mitment towards saving Munnar, the
general consensus is that the govern-
ment is not giving him a free hand. The
minister is from the CPI, the junior
partner in the CPM-led Left Front gov-
ernment, and is being restrained from
taking action by big-wigs in the CPM
and in the government.
The CPM has its own compulsions to
ensure that the encroachers are not
resort mafia that had encroached land,
the authorities in this southern state
seem to have been sleeping on the order.
In fact, whatever action was initiated by
the revenue and district authorities
came to a halt due to extreme political
pressure. It was the relentless media
reporting on the sluggishness of the gov-
ernment that seems to have prompted
the tribunal to finally act.
“It will be a disaster if a place like
Munnar is pushed into becoming some-
thing like Delhi or Mumbai….You have
all the powers to act and if anyone
stands in between, they may be prose-
cuted for trying to obstruct duty,’’
observed the Tribunal.
The latest NGT order places on
notice the state chief secretary, the dis-
trict collector of Idukki, the sub-collec-
tor and tahsildar of Devikulam, the
Munnar gram panchayat, the executive
engineer of the national highways, The
state electricity board, the department
of geology and mining and the state pol-
lution control board. All these
officials/departments have been asked to
furnish their reports on the progress of
the eviction drive at the hill station
undertaken since 2015.
THE PROVOCATION
The immediate provocation for the NGT
to crack the whip apparently came from
a revelation in a national daily by the
land revenue commissioner, Munnar.
He pointed out the inability of the state
revenue department and other agencies
to act against the encroachers in the
face of stiff opposition from local leaders
of the ruling CPI led by its state power
minister from Idukki, MM Mani.
Activists who had been hoping for a
renewed intervention from the NGT are
now optimistic. “Let us hope that the
NGT’s intervention will give the much-
needed teeth for the officials to act
against those who are encroaching land
on a mass scale in Munnar. Now the
government will have to be much more
accountable,’’ Harish Vasudevan, an
environmental activist and lawyer
Wake-up CallOUT, OUT DAMNED SPOT!
Despite the NGT’s orders, building
projects are still being undertaken
in Munnar

would cut the power supply to all illegal
constructions.
The NGT also asked the state pollu-
tion control board on what sewage
plans are in place for Munnar. It said it
did not have any as only 30 percent of
Kerala had a sewage plan. The Tribunal
expressed shock at this and directed it
to get its act together in dealing with
Munnar immediately.
A visibly frustrated Tribunal then
asked the government to file a progress
report by May 29 on what it had done
since 2015. Here are some of the key
commitments the government had
made to the NGT then: non-issuance of
No Objection Certificates for construc-
tions meant for commercial purposes;
asking the state electricity board not to
give power connections to those with-
out NOC and ensuring that all illegal
and unauthorised constructions and
check dams are demolished.
Munnar is an important tourist des-
tination in Kerala and is also home to a
number of flora and fauna that come
under the endangered category. But
rampant encroachments upon govern-
ment and forest land over the last three
decades has reduced Munnar into a
concrete jungle and has severely
strained its fragile ecosystem. One
hopes that the NGT’s wakeup call will
finally goad the state government into
taking action.
34 May 15, 2017
acted against. Reason: many in the
party are hand in glove with the big
resort owners and land grabbers. For
instance, MM Mani’s younger brother
MM Lambodaran is among the top
encroachers in the area. He has grabbed
250 acres in the Chinnakanal area of
Munnar and figures prominently in the
list of land grabbers that the revenue
department has drawn up.
Any action against Lambodaran will
invite the ire of the party because
hurting him would mean hurting his
brother, MM Mani,which would cause
much collateral damage to the CPM in
Idukki district, an important strong-
hold for the Left given the sizeable
vote-bank among the tea garden work-
ers and farmers.
Moreover, it is an open secret that
Mani, who was inducted into the cabi-
net at the behest of Chief Minister
Pinarayi Vijayan is not only his trusted
lieutenant but also the CPM’s point per-
son when it comes to raising funds. For
obvious reasons Mani’s proximity to the
CM and his links with the resort and
real estate lobby in Munnar is some-
thing that comes in the way of action
being taken. Activists in Munnar say
the ruling party’s vested interest is what
is destroying Munnar. “To act strongly
in Munnar you need political will. But
the government does not have it
because the ruling party itself is reaping
benefits of the encroachment and the
illegal constructions here,’’ says Manoj
Nair, a social activist based in Munnar.
WHAT THE NGT WANTS
The Green Tribunal bench, comprising
Justice P Jyothimani and the expert
member Professor R Nagendran, had
come down heavily on various depart-
ments of the state government for not
implementing its 2015 orders in which
the state government had agreed to act
on several counts. The Tribunal is par-
ticularly upset with the state electricity
board which had in 2015 promised it
Environment/ Kerala/ Land Encroachment
Statepower
ministerfrom
Idukki,MM
Mani’sbrother,
MMLambodaran
isamongthetop
encroachersin
thearea,andfig-
uresinthelistof
landgrabbers
ThoughE
Chandrasekharan,
therevenueminis-
ter,hasexpressed
hiscommitment
towardssaving
Munnar,the
governmentis
notgivinghima
freehand.
GREEN BREAK
The Munnar hills are a major tourist
attraction in the South

States/ Kashmir
ON THE BOIL
Mistrust and despair have
pushed schoolgirls to
protest on the streets
The Witches’ Brew
AST week, the Supreme Cou-
rt waded into the Kashmir
quagmire. In a ruling on a
petition filed by the Jammu
and Kashmir High Court Bar
Association to stop the use of
pellet guns on protesters, the judges of
the apex court had this advice to give:
“The Court would get the government to
do so, once the Bar Association agreed
to get the students off the streets.” The
Bar Association also wanted Delhi to
explore talks with the Hurriyat. Spea-
king for the government, Attorney
General Mukul Rohatgi countered:
“They are separatists. What kind of dia-
logue they want to have?’’
This debate is rather strange consid-
ering that the government had already
said that pellet guns would be replaced.
But BJP leader Yashwant Sinha wrote a
stinging piece in a website on what he
felt was so-called judicial overreach. He,
like many others, could not figure out
why the Supreme Court was brought
into the scene by the lawyers.
Sinha wrote: “But if the plea of the
Association came as a surprise, the
AstheValleygoesupinflamesandteetersontheedgeofaprecipice,expertsare
urgingareluctantcentretoholdtalkswithallstakeholdersforapoliticalsolution
By Seema Guha
L
UNI

India Legal 15 May 2017

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