India legal 15 September 2016

NDIA EGALL
September 15, 2016 `100
www.indialegalonline.com
I STORIES THAT COUNT
TortuousRoad
toJustice
Chief JusticeTS Thakur
22lakhcases
pending...andstill
counting
ByRameshMenon
20Judgesshould takelessholidaysByJusticeKChandru
Ajith Pillai
Taming the
Algo Trade
48
Shobha John
Tax on Fat 54
Seema Guha
Balochistan Missile 70
Nayantara Roy
Judiciary’s
Helping
Hand
36

CAN MODI’S
INDUSTRIAL MODEL
BE GREENED?
INDERJIT BADHWAR
Prime Minister Modi, like his friend Barack Oba-
ma, has made clean air, a cleaner Ganges, cleaner
cities cornerstones of his good governance promis-
es. While the US, under Obama, is clearly moving
faster than before towards cleaner energy and try-
ing to shake off its dependence on oil, India is
marking time, perhaps even sliding backwards.
One result of all the international conferencing has
been the emergence of a clearly recognized need
for clearly enunciated energy and environmental
policies by national governments. Does India have
any? Have they done any good? Are we progress-
ing in the right direction? Apparently not.
A
brief prepared by the OP Jindal Global
University’s Law and Policy Research Gro-
up bluntly states that the Modi govern-
ment’s energy and environment policies have pro-
duced more harm than meets the eye. In a sweep-
ing review of India’s regulatory landscape in the
context of the pledges made by Modi on renewable
energy and nuclear power, the promises “do not
seem justified by the budget or official statements”.
There is a glaring paucity of funds to set these
policies in motion, says the report, which also cites
“lack of targeted incentives, shortage of energy
supply for immediate consumption, an increasing
dependence of (dirty) coal, the evolving issue of
nuclear liability, corrupt environment regulatory
mechanisms and scarce public participation (in
Environment Impact Assessments, among other
things)”.
Policy and administrative frameworks have
failed to grapple with India’s burgeoning energy
needs and policies. Here are highlights from this
illuminating survey:
LETTER FROM THE EDITOR
t is fashionable for all world leaders to boast of
their commitment to preserving the environ-
ment. They flaunt statistics at global warming
and climate change summits, speak about dis-
criminatory regulations which favor the ad-
vanced nations at the expense of poorer countries,
pledge themselves to carbon credit regimes and
words and phrases like “clean energy”, “alternative
fuels”, “hydrocarbon emissions”, “greenhouse
effects”, “user-friendly energy policies” et cetera fly
fast and furious.
This has gone on for decades. But the polar ice-
caps continue, it seems, to recede even as winters
get harsher in the northern hemisphere, El Nino
plays havoc with the monsoon bringing crop fail-
ures to countries like India even as floods occur in
regions which had never before experienced a del-
uge, rain forests recede, air pollution chokes us all
and rare cancers and genetic mutations rise.
Does anybody really give a damn? Are interna-
tional conclaves nothing more than debating soci-
eties? They need not be. They give us the future
shock scenarios. They lay down roadmaps. They
provide talking points for good science. They can
serve to unite humanity in the service of nature.
But environmental concerns are only as good as
the ability of nations to make laws and to regulate.
International norms like the Euro standards for
motor vehicle emissions can only be enforced if
individual nations first begin to clean their house
and actively seek domestic solutions. Politics, and
the exigencies for making a quick buck, unfortu-
nately, set the clock back and fast-forward the
doomsday scenarios.
Take the case of India, one of the most polluted
countries in the world—air, ground and water.
I
3INDIA LEGAL September 15, 2016

sion of global greenhouse gases.
The current environmental policy has been criti-
cized by activists who attack the current frame-
work as designed only to meet Prime Minister
Modi’s ambitions for industrial investment and
growth and is wholly indifferent to the current
needs of the industry. The recent suspension of the
Greenpeace NGO seems evidence of an alliance
between industry and government to silence criti-
cism of this economic model.
Critics have lambasted the Subramaniam Co-
mmittee report of environmental reform as “highly
regressive” and causing “irreversible damage to
environment and human rights”. The Committee’s
recommendations, they argue, are oriented tow-
ards providing unprecedented access to land,
water and other natural resources to large corpo-
rate bodies in order to pave the way for mega infra-
structure, industrial and urban projects. They
deplore the manner in which NGOs and environ-
mental activists were not consulted and character-
ize the report as a result of secretive consultations
The Modi government must adopt a reliable
national energy policy to keep pace with its indus-
try-oriented economic model and reduce depend-
ence on foreign resources, minimize carbon emis-
sions and ensure the availability of lifeline levels of
energy at affordable prices.
The Integrated Energy Policy Report published
by the Planning Commission revealed that half of
all Indians do not have access to energy and nearly
700 million of them rely on biomass as their pri-
mary source of fuel; the nation is largely depend-
ent on imported oil; there are massive transmi-
ssion losses from the electricity grid; and India is a
major contributor to the steadily increasing emis-
WAKE-UP CALL
(L-R) Irreversible
damage to the
environment is visible
in frequent flooding of
cities; Investing in
clean energy like solar
panels is the need
of the day
LETTER FROM THE EDITOR
Politics, and the exigencies for
making a quick buck, unfortunately,
set the clock back and fast-forward
the doomsday scenarios.
4 September 15, 2016

to the pressure for developing cleaner alternatives.
The report concludes that there is pressing need
to implement an integrated energy policy. If India
is to meet its goal of 8 percent growth, it cannot
ignore the challenge of meeting energy needs.
“The main areas of action include a reduction in
energy consumption through efficiency and con-
servation, augmenting clean energy resources and
supply, accelerating power reforms and promoting
government support of the renewable sector.”
The survey is absolutely on target when it sug-
gests that the challenge remains in matching these
“green” reforms with the ambitious new industrial
model and a need for a sustainable and energy-
efficient future.
While recognizing that there is no single ans-
wer to India’s energy problems, the report recom-
mends the formulation of a policy framework
“without massive commitments of land and with
reduced hydrocarbon dependence”, the harness-
ing of renewable energy options and a sensible and
calibrated shift to nuclear energy options wher-
ever possible.
with corporate bodies and lobby groups.
The Modi government has revamped its method
of issuing “single window” green clearances for
industrial and infrastructural projects that alle-
gedly have been slowed down by the pace of their
approval.
The Union budget makes only token allocations
for “green” projects such as electrical vehicles.
While nuclear power may prove to be a viable,
clean and sustainable source of energy, it is crucial
that the government implement sufficient and sat-
isfactory rehabilitation schemes for those dis-
placed, ensure mechanisms for safe disposal of
nuclear waste and invest in training of employees
of nuclear power plants. The government must
address issues of liability, rehabilitation and the
spectrum of health effects that are associated with
nuclear power to instill confidence in the public.
Power sector reforms have barely taken off. Pri-
me Minister Modi must balance efforts to add
more environmentally sustainable power with
promises to bring universal access to electricity to
India’s 1.24 billion people. While coal will continue
to dominate for now, the environmental hazards of
coal burning, including air pollution in New Delhi,
and emissions of lung-damaging particulates add
NEED FOR BRAVE
SOLUTIONS
Prime Minister
Narendra Modi and
Japan’s PM Shinzo
Abe at the Nuclear
Security Summit in
Washington in April.
Mere lip service to
alternative and
sustainable energy
will not suffice
editor@indialegalonline.com

SEPTEMBER15,2016
Take a Break, Rotationally!
The backlog of cases can be tackled not just by increasing the number of judges but
having efficient ones who don’t take too many holidays. JUSTICE K CHANDRU
Insufferable Delay
The Chief Justice of India has once again highlighted the shortage of judges,
reminding the Executive that over 2.18 crore cases are pending resolution.
RAMESH MENON
10
LEAD
20
Don’t Hold Your Tongue
In an outstanding judgment, the court has said that Telugu, Kannada, Malayalam
and Odia are classical languages, just like Tamil, bringing an end to a needless
controversy. R RAMASUBRAMANIAN
26
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Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Bureau Chiefs
Neeta Kolhatkar, Mumbai
BN Tamta, Dehradun
Principal Correspondent
Harendra Chowdhary, Mathura
Reporters
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Associate Editors
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Staff Writers
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Photographers
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Technical Executive
Anubhav Tyagi
COURTS
Death on a String
Manjhas have led to several deaths and numerous legislations. But it would be more
effective for the center to have one law to ban them. NAYANTARA ROY
30
The Bombay High Court has allowed women entry into the sanctum sanctorum of Haji Ali
Dargah in Mumbai, giving a shot in the arm to gender justice. NEETA KOLHATKAR
32Prejudice the Loser

REGULARS
Quote-Unquote ........................................................... 8
Ringside .......................................................................9
National Briefs..................................................... 23, 39
Supreme Court.......................................................... 24
Courts.........................................................................34
International Briefs......................................................74
Campus Update.........................................................75
Wordly-Wise................................................................80
Figure-It-Out ...............................................................81
People ........................................................................82
A book by journalist JOSY JOSEPH describes the world of defense
dealers and how major deals are struck
Arms and the Middleman 64
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
36The judiciary has often come to the rescue of hapless couples
hounded by relatives for marrying against their wishes. A liberal
attitude can certainly make things better. NAYANTARA ROY
No Honor in These Killings
70Was the PM’s decision to bring up this issue in his I-Day speech a
tactical move to counter Pakistan vis-à-vis Kashmir? SEEMA GUHA
Modi’s Balochistan Punch
Cover Design: ANTHONY LAWRENCE
Cover Photo: ANIL SHAKYA, UNI
LEGAL EYE
BOOK EXTRACT
GLOBAL TRENDS
Thanks to a Bombay High Court ruling, SEBI has been pushed into
regulating high frequency trading. But will this rein in unethical brokers
armed with algorithms? AJITH PILLAI
48Taming Algo Trading
COMMERCE
The higher judiciary in Jharkhand has ensured that the government
becomes pro-active in setting up an old age home.
PRABHAT SINGH
33Positive Judicial Activism
Vexing Vyapam
With 700 accused and suspects
absconding in this huge job-
cum-admission scam in MP and
many let off on bail, observers
now wait for the CBI to submit
its report. RAKESH DIXIT
PROBE
76France had recently banned this swimwear used by Muslim women
from its beaches, sparking debate on whether this is an Islamophobic
move or a battle for the next government. SAJEDA MOMIN
Go-Ahead for Burkinis
60Two spunky women, the wife of Maulana Azad’s nephew and her sister,
declined lucrative inducements to migrate to Pakistan and elected to
remain in India instead. FIROZ BAKHT AHMED
Lessons of 1947
MY SPACE
54Kerala has introduced a fat tax, while the Delhi High Court asked Delhi
to issue directions to schools on junk food. But can this money be used
to bring down the prices of fruits and veggies? SHOBHA JOHN
When Fat Is Taxing
HEALTH
The center’s decision to appoint an independent administrator for
Chandigarh in the run-up to the polls in Punjab has kicked up a
veritable storm among political parties. VIPIN PUBBY
Unseemly Row
FOCUS
52
44
40Though the Transgender Persons Bill is a welcome move, unless
society changes its perception, little progress will be made to allow
them to lead a life of equality. USHA RANI DAS
Still Second Class Citizens
ACTS & BILLS

“I had just returned from a visit to
Islamabad and can safely report that
what I found was not hell, but a country
that is home to people just like us,
who happen, sadly, to be ruled by
a regime that does not inspire
confidence.”
—Actor-politician Divya Spandana, aka
Ramya, reacting to Defense Minister
Manohar Parrikar’s remarks that going to
hell and going to Pakistan were the same,
in The Times of India
When I first saw a Bofors
gun firing, the first thought
that came to my mind was
that Rajiv did a good job.
It was for the same reason
that I soft-pedalled the
issue (‘file gayab kar di’).”
—SP chief Mulayam Singh
Yadav, in Hindustan Times
“I have never said I am Samajwadi. I am
Mulayamwadi…But it has become kind of
a crime to be Mulayamwadi. I will hand it
(resignation letter) directly to (Rajya Sabha
Chairman) Hamid Ansari.”
—SP MP Amar Singh, alleging that people close to
Mulayam Singh Yadav were being insulted in the
party, in The Indian Express
QUOTE-UNQUOTE
“I want to express my gratitude to the people
of Balochistan, Gilgit & POK for the way they
whole-heartedly thanked me....When they
thank the Indian PM, it’s an honour for the
125 crore people of the country...”
—Prime Minister Narendra Modi, while delivering
his Independence Day speech from the
ramparts of the Red Fort
“Modiji a prayer for you: ‘Asatoma Sadgamaya
Tamasoma Jyotirgamaya Mrityorma Amritam
gamaya Om shanti shanti shanti’. Lead me from
ignorance to truth—from darkness to light—from
death to immortality. Let there be peace for all
living creatures.”
—Congress vice-president Rahul Gandhi, responding to
PM Modi’s claim that the BJP had suffered more after
1947 than Congress had under the British, on Twitter
“By mentioning Balochistan
at key speech, Modi fuels
theories about India’s role in
rebellion there. The Pak FO
will have a field day now.”
—Senator Sherry Rehman of
Pakistan, on Twitter
“I promise, I will
be there and
will achieve
something more
in Tokyo.”
—Shuttler PV Sindhu,
after winning the
silver at the
Rio
Olympics,
in India
Today

“No great idea in its beginning can ever be within the
law. How can it be within the law? The law is stationary.
The law is fixed. The law is a chariot wheel which binds
us all regardless of conditions or place or time.”
—Emma Goldman, feminist, in
Anarchism and Other Essays
VERDICT

LEAD/ Pendency of Cases
The Chief Justice of India has once again highlighted the paucity
of judges and the delay in filling the vacancies as over 22 lakh
cases pile up taking years to be heard
By Ramesh Menon
JUDICIALNIGHTMARE
Prashant Panjiar

J
USTICE delayed is justice
denied is an axiom that all of us
in India understand as we see
thousands of cases hanging on
without justice for decades.
Every day, the number of pend-
ing cases in courts increases.
There are presently over 2.18 crore cases
pending which, observers say, will take over
300 years if the present rate of disposal car-
ries on. Out of these, more than 22.5 lakh
cases are over 10 years old. It is a long time
before justice is delivered. The irony is strik-
ing when in many cases, the judgment arrives
after the petitioner has died.
Over the last four months, the 43rd Chief
Justice of India, Tirath Singh Thakur, has
raised the question of pending appointment
of judges as many times. Clearly, it is some-
thing that has troubled him more than any-
thing else. On April 25, he raised it at Vigyan
Bhavan in the capital during a meeting of
chief justices and chief ministers in the pres-
ence of Prime Minister Narendra Modi urg-
ing him to move on the pending appoint-
ments. A Lok Sabha discussion in March
“Access to justice is a
fundamental right
and the government cannot
afford to deny the people
their fundamental right.”
—Chief Justice TS Thakur
ENDLESS WAIT
Anxious litigants wait
to see their paperwork
done at the Patna High
Court
UNI
Anil Shakya

indicated that appointments were pending of
44 percent judges in high courts, 25 percent
in subordinate courts and 19 percent in the
Supreme Court.
C
hief Justice Thakur did not mince
words when he said that it was easy to
criticize the judiciary but what was
required was to lessen the load of judges by
filling up vacancies as it was stuck up at the
government level. Modi promised to look
into the matter. But as nothing moved, the
chief of the apex court again raised it when
he was hearing the case of a PIL filed by Lt
Col Anil Kabotra that the long delay in dis-
posal of cases was violating the fundamental
rights of litigants to speedy justice.
Chief Justice Thakur said that the logjam
in appointment of judges to HCs was unac-
ceptable and the judiciary could not be
brought to a grinding halt. “People have
started feeling the pinch because of delay in
dispensation of justice. The government
must tell us what the problem is,” he said.
Again, when Modi did not refer to the
increasing pendency which was denying jus-
tice to millions in his Independence Day
speech, the Chief Justice said that he was dis-
IN LIMBO
An analysis of
pendency of cases data
in India shows Uttar
Pradesh leading with
51.3 lakh cases,
followed by Maharashtra
with over 30 lakhs,
Gujarat with over 22.4
lakhs, Bihar with over 14
lakhs and Rajasthan
with over 13 lakhs
Prashant Panjiar
Bombay High Court
Patna High Court

appointed. “You may make roads, schools,
hospitals, but please also say something
about people waiting for justice,” he said.
Political circles sat up as it is rare for any
chief justice to be so outspoken when he is in
office. “Now, I speak bluntly both inside and
outside the court as I know I have reached
the peak of my career. From here I have
nowhere else to go. So, I have no hesitation in
saying anything,” he said.
The fact that two-thirds of the prisoners
languishing in Indian jails are undertrials
awaiting a hearing is telling. Many of them
have been waiting for years. By the time
their case comes up for a final hearing, they
have already completed what could have
been their sentence if convicted. And if they
were found innocent, how can the state
compensate them for travesty of justice?
Disturbing questions. Equally disturbing
answers.
T
he Allahabad High Court has 88
vacancies, the Madras High Court has
40 and the Punjab and Haryana High
Court has 37. Obviously, there is pressure
that could have been eased with appoint-
ments being made on time. Eighty percent
EMPTY SEATS
There are about 426
vacancies in the high
courts where the total
sanctioned strength is
1,029. Only 15,360
posts in the subordinate
courts are occupied
whilethe santioned
strength is 20,358.
However, filling up the
vacanceis will not solve
the problem as it would
need 3,989 courtrooms
to be set up
Allahabad High Court
Madras High Court

of the backlog is in nine mainline states
with larger populations. Mukul
Mudgal, former chief justice of the
Punjab and Haryana High Court, told
India Legal: “Most of the tribunals
must be abolished as it only adds to the
litigation burden. It is only a sinecure
for retired bureaucrats creating addi-
tional costs. Judgments pronounced by
one judge should be enforced by that
judge within 30 days. Independent
experts who advise the government
should not unnecessarily ask the gov-
ernment to litigate. The government is
the biggest litigant and most of its
cases are routinely dismissed. Those
who deliberately delay cases must be
penalized and those filing false affi-
davits should be severely prosecuted.
Lastly, the Plea Bargaining Act must be
revisited and a more practical one
must be framed.”
Shockingly, judges spend an aver-
age of about 2.5 minutes to hear a case.
In another five minutes they decide on
The judge-population ratio
(sanctioned strength) has from
1975 increased to 17 judges per
million but the vacancies have
surpassed the 5,000 mark and
so have the backlogs.
The pendency of cases has
remained abnormally high at
3.10 crore.
There are 4,600 vacancies of
judges in the subordinate judiciary
which is more than 23% of the
strength.The situation in high courts
is worse with almost 44% (462)
judges' posts vacant. The Supreme
Court too has six vacancies on a
sanctioned strength of 31.
At the current rate of disposal,
HCs require an additional 56 judges
to break even and an additional 942
judges to clear the backlog.
The average pendency of a case
in the 21 high courts is over three
years.
The average time in which a
decision is likely to be reached in a
subordinate court is six years.
If a case goes to the Supreme
Court, an average litigant ends up
spending up to 13 years in the legal
system.
The total amount of money spent
by litigants, and the average wage
and business loss add up to
`80,000 crore a year.
High court judges have to
hear cases in a matter of minutes,
ranging from 15 in the most
relaxed courts to about 2.5 in the
busier ones.
Adjournments are frequent and
vacations are long, despite Section
309 of the Criminal Procedure Code
recommending that witness exami-
nation be ideally conducted daily
without a break.
With 24 high courts functioning
with a 43% vacancy, and only 599
judges instead of the sanctioned
1,044, it is estimated that judicial
pendency could soar to a
staggering one crore cases by
the end of the year.
Most states are reluctant to
increase the strength of the trial
court judges citing fund crunch.
12,000-odd trial judges with mini-
mal infrastructure try to chip away
at nearly 2.6 crore pending cases.
Disturbing
facts
Prashant Panjiar

it. That is the kind of pressure they face to
dispose of what seems an endless mountain
of cases. A survey by research agency Daksh
found that in the Patna High Court, a judge
got just two minutes to hear a case. No won-
der Justice Thakur has described the number
of judicial vacancies as a national challenge.
He said efforts were being made to persuade
the government to expedite it.
W
hile speed in the dispensation of
cases is paramount to ensure full
access to justice, it must be en-
sured in a manner that does not compromise
on the quality and the fairness with which
disputes are resolved.
The Law Commission of India has been
underlining the need to address this paucity
of judges for almost 30 years now, but it has
fallen on deaf ears. Former Union law minis-
ter Ram Jethmalani told India Legal that
while India was blessed to have the kind of
judiciary it does, the government is not
investing in improving the infrastructure and
appointing the requisite number of judges.
Chief Justice Thakur obliquely indicated
through his utterances in court that he knows
what to do and will go ahead and do it if he is
forced to do so.
According to the National Judicial Data
Grid, there are more than 2.19 crore cases
pending. Out of these, 22.3 lakh cases have
been pending for more than 10 years, 37 lakh
cases for 5 to 10 years and 64.3 lakh cases for
2 to 5 years. It is an issue that should cause
alarm for any government. Both the Prime
Minister and the Law Minister, Ravi Shankar
Prasad, have said that they are working on it.
There are less than 15 judges per million
in India. Twenty- nine years ago, the Law
Commission had recommended that the
strength of the judiciary should be increased
as soon as possible to ensure that there were
at least 50 judges per million. That has not
happened.
A robustly functioning judicial system
bestows faith among citizens that their
democracy is alive and there is a rule of law.
This is the big crisis that the judiciary has to
face today. Maybe, that is also what is
The Campaign for Judicial Accountability
and Judicial Reforms that advocates
judicial reforms, has patrons such as
Justice PB Sawant (retired), Supreme
Court of India, Justice H Suresh, former
judge, Bombay High Court, Arundhati
Roy, activist and author, and Banwari Lal
Sharma of the Azadi Bachao Andolan
among others. In a statement they said:
“Closing down the courts for extended
periods of time during the long summer
months is a vestige of colonial India.
There is no justification in a modern
democracy to retain the colonial practice
of long vacations for courts. Judicial
officers should get service benefits,
including leave and vacation benefits,
similar to what other public
service officials of comparable
seniority get.”

exercising the chief justice who feels that
pendency is now affecting the common man’s
search for justice. After all, a well oiled judi-
cial system that delivers speedy justice is the
hallmark of a good democracy that ensures
that rights of its citizens are ensured and pro-
tected. Delayed justice also affects the social,
economic and political fabric of the country.
As India is at the crossroads of change that is
sweeping the world, it can ill-afford a weak-
ened judiciary.
There has been a palpable wave of tension
that is simmering between the government
and the judiciary ever since the apex court
rejected the NJAC Act and restored the col-
legiums system to appoint judges. It is a
stroke that political entities are not likely to
forget soon. Clearly, the government wanted
to exercise its powers in getting a hand in the
appointments.
A comparative analysis of the pendency of
cases in India shows Uttar Pradesh leading
with 51.3 lakh cases. It is followed by
Maharashtra with over 30 lakhs, Gujarat
with over 22.4 lakhs, Bihar with over 14 lakhs
and Rajasthan with over 13 lakhs.
At the end of 2015, there were 426 vacan-
cies in the high courts in India where the
total sanctioned strength is 1,029. The total
sanctioned strength of the subordinate
courts is 20,358. However only around
15,360 of these posts were occupied. Just fill-
ing up the vacancies would not solve the
problem. There are only 16,513 courtrooms
in India at the moment and in case these
vacancies are filled, 3,989 courtrooms would
be needed.
D
aksh conducted an empirical study
called “The Access to Justice Survey”
by interviewing litigants in several
district courts over the period of November
2015 to February 2016. The surveyors physi-
cally visited 305 locations in 170 districts of
24 states in India. The reasons that litigants
stated for delays in their cases ranged from
the judges not passing orders quickly to other
parties not appearing in courts.
As many as 49.3 percent respondents felt
that there were not enough judges for civil
cases, while 50.4 percent respondents felt
that there were not enough judges for crimi-
nal cases. Over 63 percent felt that there
were too many cases in the court. 3.8 percent
were waiting for more than 10 years to see
that their cases are disposed of.
Daksh also focused on the economic
impact of undue delays in court cases. It eval-
uated the economic burden that is felt by the
litigating parties as well as the national econ-
omy on the whole. The survey states that the
loss of productivity due to attending repeti-
tive court hearings because of wages and
business lost comes to 0.48 percent of the
“India is blessed
to have such a
judiciary. The
government is
not investing in
improving the
infrastructure
and appointing
necessary
judges.”
—Former Union law
minister Ram
Jethmalani
“Most of the
tribunals must be
abolished as it
only adds to the
litigation. It is a
sinecure for
retired bureau-
crats creating
additional costs.”
—Justice Mukul
Mudgal, former chief
justice, Punjab and
Haryana High Court

12.9 14.4
11.8 10.8
Surveyrespondents’perceptionfor
reasonsfordelayingeneral
Litigants responded that the lack of
judges in subordinate courts is the primary
reason for delay in general in the courts
Litigantsnot
appearingincourt
Powerfullitigants
influencingjudges
Costincurredandearningslostforcourthearing
Civil litigants spend `497 per day on average for court hearings.
They incur a loss of `844 per day due to loss of pay. Criminal
litigants spend `542 per day for court hearings on average and
incurred a cost of `902 per day due to loss of pay
Estimateddisposaltimeatthetimeoffilingcase
On asking litigants how much time they expected it would take for their cases to
be disposed, we found that 55% of civil litigants and 67% of criminal litigants
expected their cases to be resolved within a year when they first filed their cases
Lessthan1year 1-3years 3-5years Morethan5years
67.3 25.4 3.5 3.8
55.1 35.7 5.6 3.6
0 10 20 30 40 50 60 70 80 90 100
Criminal
Civil
Figuresin%
Criminal Civil
497
844
542
902
Figuresin`
Spendingoncourthearing Lossofpay,business
Criminal
Civil
Costscivillitigantsexpecttoincurtillthecaseis
decided:Incomelevel-wise
Litigants in the lowest income bracket incur a greater
proportionate cost of litigation than others
*Medianisthemiddlepoint,wherethenumberofrespondentsaboveequalsthosebelow
AnnualIncome MedianExpenditure
(`) (`)*
Below1lakh
1lakh-3lakh
3lakh-5lakh
5lakh-10lakh
10,000
16,000
26,000
25,000
Averagecostperday
The average daily expenses of plaintiffs is 21%
less than that of defendants
Criminal
Civil
589
465
463
643
Figuresin`
Expensesthatlitigantsexpecttospendtillthe
caseisdecided:civilvscriminal
Criminal
Civil
20,000
15,000
10,000
20,000
Figuresin`
Defendant/Accused
Plaintiff/Complainant
Defendant/Accused
Plaintiff/Complainant
17INDIA LEGAL September 15, 2016Source: Daksh

Indian GDP. Civil litigants were found to
spend `497 per day on average for court
hearings. They incur a loss of `844 per day
due to loss of pay. Criminal litigants spend
`542 per day for court hearings on average
and incurred a cost of `902 per day due to
loss of pay. The average cost incurred by the
litigants per day per case came to about
`1,039. This indicates that only those who
can afford such a high cost of litigation can
afford resolution of their legal disputes. This
goes against the constitutional provision that
guarantees equal protection of the law to
every citizen.
T
he 245th Report of the Law
Commission of India on Arrears and
Backlog said that one of the problems
was that India does not have general statuto-
ry time limits for cases as the US does
through its Speedy Trial Act. While the Civil
Procedure Code, and the Criminal Procedure
Code, has time frames for completing certain
stages of the case, these statutes generally do
not prescribe time limits within which the
overall case should be completed, or each
step in the trial should be concluded. On the
judicial side, setting of mandatory time limits
was attempted by the Supreme Court in a
series of cases. However, in 2002 a seven
judge bench of the Court in P
Ramchandra Rao vs State of
Karnataka held that mandatory
time limits could not be pre-
scribed by the court.
The Malimath Committee, in
2013, recommended the use of a
two-year time frame as the norm
by which delay and arrears in the
system should be measured.
Additionally, the Law
Commission report mentions
that the Supreme Court has also
recently advocated the use of
case-specific time tables for the
timely disposal of cases, in the
case of Ramrameshwari Devi vs
Nirmala Devi which makes it
possible for the courts to remain
flexible with the time limits they
impose on cases depending on
the type of case it is.
However, the 245th Report did not rec-
ommend mandatory time frames for the dis-
posal of cases as it feared it would affect the
quality of judgments. Instead, the
Commission recommended using the Rate of
Disposal Method to determine how many
additional judges should be appointed to
clear backlog for an interim period until
when the judiciary’s human and physical
infrastructure can be increased.
Pendency of cases is a complex issue that
has no easy answers. But some plausible
solutions can be put into place:
Court infrastructure has to be improved to
meet the increasing pressure.
Technology that can cut red tape and
delays should be exploited.
All the vacancies should be filled as soon
as possible.
Court administration should be tightened.
There must be a system to deal with or
change cumbersome procedural laws that
result in delaying the administration of
justice.
As cases pile up every day, the problem
becomes larger. This issue demands immedi-
ate attention from the government if faith in
India’s judicial system has to be kept alive.
With inputs from Punkhuri Chawla
IL
Anil Shakya

T
HE emotional appeal made by
Chief Justice of India TS Thakur
regarding the appointment of
new judges took everyone by
surprise. Recently, he asserted
that the present backlog of cases requires a
cleaning job by over 70,000 judges. Even
earlier, conservative estimates indicated that
with the present rate of disposal, without
adding anything new, it may take around 125
years to clear the backlog in courts.
Mere geometric expansion will not solve
the problem. It may only result in “diminish-
ing marginal returns”. Any prudent entrepre-
neur will first conduct a manpower study
before agreeing to deploy more hands. So far,
there has been no worthwhile study either on
the rate of disposal of cases by judges in high-
er courts or on the capability and compe-
tency of people appointed to such posts. How
will you explain this: Some judges of higher
courts are not even disposing a few hundred
LEAD/ Column Justice K Chandru
In a surprisingly frank article, this former judge says the
backlog of cases can be tackled not just by increasing
the number of judges but having efficient ones who
don’t take too many holidays
“Judges Should
Take Breaks on a
Rotational Basis”
cases in a decade of tenure? Or that there are
judges who never even attend courts due to
ill-health for several years? A Delhi maga-
zine, attempting to list the Top 10 judges
of Delhi High Court, was visited with a
contempt notice. Unless the accountability
question is answered, we will be driving
towards a mirage.
MISSING THE POINT
In the last few years, we heard judges exhort-
ing to litigants the benefits of Alternative
Disputes Resolution such as Mediation,
Conciliation and Arbitration. Some high-
lighted the magic effect of Lok Adalats dis-
posing of millions of cases. But they have
hardly answered why there is so much pen-
dency of old cases. The demand that the ratio
of judges be increased in proportion to the
population is to miss the wood for the trees.
Subordinate courts have some minimum
norms fixed for disposal of cases, whereas for

the higher judiciary, there is no such burden.
The first and foremost question is whether
the current working hours and the number of
days the courts work reflect the existing state
of backlog.
A holiday for an industrial worker comes
after arduous work. But ironically, judges
work in between two holidays. Though high
courts are supposed to have 210 working
days with five hours and 45 minutes of court
hours, in practice, such work schedules are
hardly kept. Apart from 30 to 40 days of ann-
ual court boycott by lawyers, judges also have
many excuses such as attending to committee
meetings, full court meetings and court func-
tions. All these functions take place during
precious court hours.
SCRAP VACATIONS
There are many who only list a minimum
number of cases in the daily cause list for dis-
posal. After grant of liberal adjournments,
they retire to their chambers. Apart from
this, there is an unethical enjoyment of sum-
mer vacation for five weeks and Christmas
and Dasara vacations for another three
weeks. During colonial days, unable to bear
the heat, British judges had conceived of the-
se long and periodical vacations. The first
attempt towards accountability to the people
of this country who only bear the burden of
bearing the expense of a costly judiciary is to
scrap vacations.
A court which is to keep vigil of the rights
of people guaranteed by the constitution
cannot be closed down periodically in the
name of holidays and vacations. Judges who
claim parity with the salary and perks of min-
isters and secretaries should also work
round-the-year.
On the issue of cutting vacations, judges
draw support from wealthy and prosperous
senior lawyers who cry against it. They say
that overworked lawyers need some
GAME OF PATIENCE
Litigants at the Tis
Hazari court in Delhi
Anil Shakya

IL
breaks just like machines are shut down for
overhauling. This problem can be solved by
lawyers taking rotational offs. Similarly,
judges can also enjoy a break on a rotational
basis, but on no account should there be a
vacation for courts. If necessary, courts with
the existing infrastructure and with addition
of some more judges can work in two shifts.
OLD TECHNOLOGY
The advancement of technology and science
has had little influence on court proceedings.
Records are yet to be digitized. We still use
thousands of tons of precious paper, thereby
contributing to the fast depletion of forest
cover in the country. There are one or two
paperless courts in the country, but it may
take over a century for all courts to switch
over to complete e-governance. Judges are
also not provided sufficient and able para-
legal help and efficient court staff to aid in
the management of court work. There are
also some judges who appease the Bar by
their liberal admission of cases. Unless the
inflow is under check, there can never be an
increased outflow, thereby making a dent in
the backlog.
The competency and capacity of those
appointed is again a question to be pondered.
While there are cries for social justice in the
matter of appointments, there is hardly any
voice raised that the criteria of efficiency
should not be sacrificed.
The mode of selection by the collegium
resembles that of an Old Boys Club. A quick
support to this nomenclature can be seen
from the fact that the most efficient chief jus-
tices of the Madras High Court have never
made it to the Supreme Court. The collegium
system, far from making a proper selection in
the matter of appointments, only contributed
to the increasing deterioration of the stan-
dards and capacity of judges.
It has been more than two decades since
the present system of selection has been in
vogue but we are yet to see a Krishna Iyer or
a PN Bhagwati in the making. It is alright to
argue that the independency of the judiciary
has to be assured. But you cannot pack the
judiciary with mere numbers and attempt to
solve the mind-boggling backlog. The judici-
ary is practically sitting on a volcano and any
refusal to solve the problem of these cases
will result in an automatic negation of the
rule of law and denigration of the judiciary.
Instead of seeking an increase in num-
bers, the CJI should ponder over what has
gone wrong so far and where to begin re-
forms. Unless judges adopt the motto pre-
scribed by retired Chief Justice of India SH
Kapadia that “judges must work like a horse
and live like a hermit”, the target will be
far off.
The writer is a retired judge of
Madras High Court
Late Justice
SH Kapadia, CJI
from 2010 to
2012, believed
that “judges
must work like a
horse and live
like a hermit”.
Unless we adopt
that approach,
we will never be
able to clear the
backlog.
It has been
more than two
decades since
the present
system of
selection has
been in vogue
but we are yet
to see a
Krishna Iyer or
a PN Bhagwati
(left) in the
making.
LEAD/Column/Justice K Chandru

Budget may be presented in January
The Union Budget may be pre-
sented a month before the usual
time. The finance ministry is plan-
ning on advancing the budget pre-
sentation to January 31. The move
will help in initiating revenue
mobilization and capital expendi-
ture measures right from the begin-
ning of the fiscal year. This will
need the consent of the Parliament
Secretariat. This means that the
budget session which begins in the
last week of February and goes on
till mid-May would also get
advanced.
The move, if implemented, will
help departments to start spending
allocated money right away at the
beginning of the fiscal year instead
of waiting for it to get parliament's
nod. Also, the government will be
able to prepare for implementation
of the GST which is scheduled to
roll out from April 1.
The Supreme Court’s guide-
lines on the traditional
custom of Dahi Handi were
violated by many groups on
Janamashtmi.
The apex court had ruled
that no one below 18 years of
age should be a part of the
custom and that the height of
the human pyramid should
not exceed 20 feet. The Court
said it could not be allow such
human pyramids because peo-
ple could get hurt.
Meanwhile, MNS chief Raj
Thackeray felicitated partici-
pants of a nine-tier pyramid
at an event organized by an
MNS-backed organizer.
The MNS insisted on
forming a 40-ft human pyra-
mid and was booked by the
police. Twenty-one complaints
were lodged against organisers
at various police stations in
Mumbai for flouting the rules.
Dahi Handi rules violated
India's first comprehensive
Anti-Human Trafficking Bill
is in the process of being fina-
lized. The new Bill will consid-
er trafficking of children and
transgenders and of those vic-
timized under police or armed
forces' custody as aggravated
forms of trafficking. The pun-
ishment for this would be at
least 14 years of imprisonment
as per the latest amendments
to the Bill. Maneka Gandhi,
Union Minister for Women
and Child Welfare, is hoping
that the Bill will soon be
passed in parliament. The Bill
aims at preventing human traf-
ficking and rescue and rehabili-
tation of victims. The South
Asian region, including India,
is counted as one of the fastest
growing ones in the world for
human trafficking by the
United Nations office on Drugs
and Crime.
Anti-human Trafficking Bill to be
finalized soon
While mothers-to-be are wait-
ing for the Maternity Leave
(Amendment) Bill, 2016, to be
passed, fathers may also get some
respite. The Ministry of Women
and Child Development has insis-
ted on including paternity leave
rights to the Amendment. When
the Bill was up for discussion in
the Rajya Sabha, it was argued that
the responsibility of taking care of
a child should be shared by both
parents. If the Bill is passed by
both houses, the new guidelines
will allow fathers to take paternity
leave. However, minister Maneka
Gandhi has recently said that there
are high chances that this leave will
become just another holiday for
dads as they are rarely seen avail-
ing their regular leaves to care for
their offspring.
Prez rejects mercy pleaGood news for
dads-to-be
Showing no mercy at
all to two lovers—
Shabnam and Saleem-
who are convicts in a
death row, President
Pranab Mukherjee has
rejected their mercy peti-
tion. Eight years ago, the
two had killed seven
members of Shabnam's
family in Amroha, Uttar
Pradesh, as her family
was against their rela-
tionship. Earlier, they
had sent their mercy
petition to the governor
of UP, Ram Naik, which
had also been rejected.
Since then, their mercy
plea had been pending
with the President. The
couple’s mercy pleas
were based on the fact
that their child would be
orphaned if both were
sentenced to death.
NATIONAL BRIEFS
—Compiled by Karan Kaushik

SUPREME COURT
While alluding to his affidavit sub-
mitted in the Bombay High Court
where he had held that RSS as an
organization was not responsible for
killing Mahatma Gandhi—rather a per-
son linked to the outfit was—Rahul
Gandhi refrained from taking a bel-
ligerent stand on the issue.
Earlier, he had refused to apologize
for his “RSS killed Gandhiji” remark
made at a rally in Bhiwandi, Maha-
rashtra, in March 2014 and wanted
the case to proceed on merit. The
apex court had then ruled that he
could not denigrate the RSS and must
say sorry or face trial.
Rajesh Kunte, secretary of the
RSS, Bhiwandi chapter, had filed a
criminal defamation case against
Rahul in a Maharashtra court. Rahul
had later approached the apex court,
pleading that the criminal defamation
charge be quashed.
Rahul’s counsel in the Court, Kapil
Sibal clarified that Rahul did not con-
demn the RSS per se, but only a per-
son linked with it. The Court seemed
to agree with Sibal and was in a frame
of mind to drop criminal defamation
charges against Rahul. It sought
agreement from Kunte’s counsel, who
wanted Rahul’s statement recorded
before closing the case. The Court
adjourned the matter for September 1.
RaGa pleads not guilty
An insurance company
is not liable to pay
compensation for “bur-
glary” unless there is
forced entry, use of vio-
lence or even a threat of
it. The apex court made
this observation while
adjudicating an insur-
ance claim made by an
Orissa PSU from the
New India Assurance
Company under its
“burglary and house-
breaking policy”. The
Court rejected the plea
of the PSU.
Contending that the
provisions regarding
burglary in the insur-
ance policy were unam-
biguous, the Court stat-
ed there was no room
to misinterpret the agree-
ment or attribute a new
meaning or take away
the intended meaning.
The apex court itself has
taken a clear stand on
this in 2004—there must
be violence or force
before a burglary (theft)
takes place in order to
justify a claim.
Deconstructing
insurance policy
Observing that there
was no deterrent to
bring down deaths in
road accidents caused
due to reckless driving,
the apex court ruled that
the quantum of punish-
ment or penalty under
Section 304 A of IPC
was not severe enough.
It took the center to task
for doing nothing to
change the law. As of
now, Section 304A
entails a maximum imprisonment of
two years or a fine or both.
The Court took serious cog-
nizance of the state of affairs
wherein an irresponsible or an
inebriated driver has scant regard
for the safety of pedestrians and
doesn’t care two hoots for the law.
It noted that the center had not
acted despite the court’s orders on
reviewing Section 304A in this
regard and the grim fact that close
to 400 lives are lost on the roads
every day due to rash and negli-
gent driving.
The counsel for the center told
the court that he will get back with
the government’s views on the
matter at the next hearing.
Concerned over accident
deaths

—Compiled by Prabir Biswas, Illustrations: UdayShankar
The Supreme Court again
pulled up the Jayalalithaa
government in Tamil Nadu
for misusing Sections 499
and 500—related to crimi-
nal defamation.
The apex court
observed that the rampant
practice was against the
tenets of good governance.
The Court had earlier
taken the state government
to task for slapping criminal
defamation provisions
against its critics and
observed that the Jaya-
lalithaa dispensation could
not use it as a political tool
to throttle dissent.
The bench dealing with
the case was miffed that
more than 200 defamation
cases had been filed by the
Jayalalithaa government in
the last five years against
her political adversaries, the
press and against others for
views expressed against her
government or its policies.
It asked the state govern-
ment to take criticism
constructively.
The apex court’s strin-
gent observations were in
response to a plea from
DMDK supremo A Vijaya-
kanth, who pleaded that
criminal defamation cases
lodged against him be
dismissed.
The Court issued
notices to the Tamil Nadu
government and other
authorities concerned. The
matter will be taken up
after five weeks starting
August 25. The top court
had earlier ruled that
Sections 499 and 500 were
legally tenable.
Slapping defamation
is poor governance
Yet another petition ques-
tioning the constitutional
validity of the triple talaq
came up before the Sup-
reme Court recently. It
was filed by Ishrat Jahan
from Howrah, West Bengal.
The Court, refusing to
issue any interim order,
clubbed it with other peti-
tions for a detailed hearing.
It, however, agreed to issue
a notice on the matter.
Jahan wanted clarity
over her rights related to
children and matrimonial
home as she had been ora-
lly divorced by her husband
staying in Dubai.
According to the peti-
tioner, he had also married
for the second time and
the children were with the
husband.
Three petitions are
already pending before the
apex court against the
practice of triple talaq,
allowed by the Muslim
personal law.
Anothertripletalaqpetition
The apex court expressed
its concern for people
(sick, old or weak) affected
by the more than 50-day
unrest in the Kashmir valley
while lashing out at Bhim
Singh, the leader of the
Jammu and Kashmir
National Panthers Party, for
trying to gain political
mileage out of the situation.
Singh had alleged that
the law and order in the
valley had gone for bad to
worse and pleaded for
governor’s rule.
Asking the center to
send people stirring vio-
lence or whipping up anti-
India feelings to jail, the
Court asked Singh to tour
the valley and get a hang of
the situation at ground zero
first-hand, if he was so
concerned about peace.
Singh should submit the
report within two weeks,
the concerned bench said,
detailing the contribution
of the judiciary in amelio-
rating the sufferings of
the people.
The bench even asked
the center to render all help
to Singh on his visit and
initiate legal action if he
went there with the inten-
tion to create trouble.
The bench was also
inclined to dismiss the peti-
tion as a similar plea was
being heard by the Jammu
and Kashmir High Court
and wanted to know why
Singh did not approach the
High Court. The matter will
come up again after two
weeks.
UnhappywithValleyunrest

COURTS/ Madras/ Classical Languages
I
N a sterling judgment, a bench of
Chief Justice Sanjay Kishan Kaul
and R Mahadevan of the Madras
High Court upheld the status of
classical language accorded to Telu-
gu, Kannada, Malayalam and Odia by the
Union government.
In an order issued in 2008, the central
government had granted classical language
status to Telugu and Kannada. This was
challenged by a Chennai-based senior advo-
cate, R Gandhi, in the Madras High Court
the same year. Incidentally, in 2015, classical
status was accorded to Malayalam and Odia.
After seven years of petitions filed in this
regard, the bench, in an important ruling on
August 8, 2016, said: “From the records it is
evident that the expert body was satisfied
Don’tLose
YourTongue!In an outstanding
judgment, the court has
said that Telugu,
Kannada, Malayalam and
Odia are classical
languages, just like Tamil,
bringing an end to a
needless controversy
By Ramasubramanian
in Chennai

that the languages comply with the eligibi-
lity criteria. Therefore, this court cannot go
into the opinion and finding of the expert
body. The facts which made the expert body
recommend the promulgation of such decla-
ration have been placed before us and a copy
has also been furnished to the petitioner. As
such we do not find any reason to interfere
with the impugned declaration. This court
cannot convert itself into a forum for debate
on such matter.”
LANGUAGE STIR
It was on October 12, 2004, that classical
language status was granted to Sanskrit and
on November 25, 2005, to Tamil by the cen-
ter through a home ministry notification.
This was done on the basis of recommenda-
tions by the Dr Gopi Chand Naren Commi-
ttee which was established exclusively to
look into this issue. In fact, the decision to
grant this status to Tamil was agreed in
principle by the Atal Bihari Vajpayee gov-
ernment in early 2004 when the DMK was
a constituent of the NDA government.
But trouble broke out when the center
decided to grant classical language status to
Kannada and Telugu in 2008. There were
murmurs and protests in Tamil Nadu at that
time, the grouse of Tamil activists being that
the center’s decision was being done due to
political considerations and despite the
absence of necessary ingredients as laid
down in the guidelines. When Gandhi sub-
mitted these points both in his petitions and
oral arguments, the bench strongly rejected
them and asked the petitioner to approach
the authorities concerned. It added that the
petitioner could also give his suggestions for
determination of the type of literature that
could be the benchmark for qualification of
“classical language”.
The 39-page short order was at its best
when it countered Gandhi’s arguments that
Tamil would lose its prominence if these
four languages were accorded classical lan-
guage status with the following words: “Pro-
minence of a language would not depend on
the development or fall of other languages.
Rather the growth and importance can be
attributed only to the usage of the language
and creative contribution in the forms of
arts and literature. Undisputedly Tamil has
a history and literature which are ancient.”
WHO IS SUPERIOR?
The bench was equally firm in rejecting the
claim of the governments of Karnataka,
Andhra Pradesh, Kerala and Odisha that
their respective languages were superior to
others. “Being a sensitive subject it would
have been wise for the respondents to
Chief Justice Sanjay Kishan Kaul (left)
and Justice R Mahadevan reasoned that
granting classical status to one language
doesn’t negate the importance of another.

existence of textsrecorded history of the
language and not the existence of the litera-
ture. What is acceptable as literature has to
be determined by the expert body and not by
this court, it said.
The bench indicated that grant of classi-
cal language status has a lot to do with cen-
tral funds grant for development of that par-
ticular language. “The significant aspect is
that once a language is declared a classical
language, funding is made available to est-
ablish a centre of excellence for studying
and creation of boards to look to measures
to promote and protect the language. Awar-
ds are given for excellence in the language.
Thus it is really financial assistance for
measures to protect and promote the gro-
wth of the language.”
ALLOCATION OF FUNDS
But the bench cautioned that the status of
classical language is not an end in itself: “It
was not necessary that for promotion of a
language it must be declared a classical lan-
guage. The Central as well as state govern-
ments are well within their rights to pro-
mote the languages and cultures of this
country by allocating funds which is actually
in practice by all the states.”
In the penultimate paragraph of the
The judgment quoted American author
Oliver Wendell Homes’s wisdom that
every language is a temple, in which the
soul of those who speak it is enshrined.
COURTS/ Madras/ Classical Languages
restrict themselves for justification of the
declaration of their language as ‘classical’
rather than a debate over the superiority of
one language over the other,” the bench said.
It said the whole issue started with the
National Common Minimum Program of
the UPA alliance for setting up a committee
to examine the question of declaring all lan-
guages in the 8th Schedule of the constitu-
tion as official languages. In addition, Tamil
was to be declared as a classical language.
The Sahitya Academy was consulted and the
opinion was that there was no doubt about
the classical status of Tamil. But it may not
be the government’s job to declare any lan-
guage as classical, as it was more of a critical
concept than a matter of official policy.
ANTIQUITY CRITERIA
As there was no procedure to declare any
language a classical language, the union
home ministry was assigned the job of rop-
ing in the ministries of culture and other rel-
evant ministries to work out the modalities.
Thereafter, a meeting of experts was organ-
ized by the Sahitya Academy. It was noted
that there was apparently no defined criteria
in existence for a classical language. A cabi-
net decision was taken on submission of the
consultative report by this set of experts.
The bench also mentioned that there was
a submission from a Tamil minister in the
union government that unless a language
was more than 2,000 years old and fulfilled
all other prerequisites, classical language
status should not be given. Basically, the
antiquity criteria of 1,000 years was sought
to be enhanced for which discussions took
place. It was also opined that to raise the bar
to 2,000 years would mean exclusion of
many other languages. Finally, it was agreed
to limit it to 1,500–2,000 years.
The bench further mentioned that this
parameter was fixed only to authenticate the

adequate funds for the development of the
language. A classic example is the poor sta-
tus of Tamil University in Thanjavur which
is crying for proper funds,” said A Marx, a
Tamil writer and social activist.
Sheldon Pollock, an American Sanskrit
scholar in Columbia University, had this to
say about the dire straits of Indian classical
languages: “I have been observing with
extreme bemusement the debate over the
classical status of Indian languages, since
the issue was first raised in 2006 in the case
of Kannada. Yes of course it is dangerous to
introduce invidious distinctions among lan-
guages and yes of course, the scholarship
upon which these distinctions are founded
is often empirically thin and theoretically
weak.... I am reminded of what great poet
Bhartrihari said: One should not wait until
the house is burning to dig a well. And the
house of Indian classical language study is
not only burning, it lies almost in ashes.
Who cares if language X, Y or Z is given
‘classical’ status if there is no one who can
read it? And if the award of classical status
is a means to ensure serious scholarship,
then there are a dozen or more languages in
India—indeed the entire pre-modern liter-
ary past—that is in desperate need of this
recognition.”
judgment, the bench said: “It is for the
experts to verify whether languages satisfy
the norms and recommend for the declara-
tion. Having satisfied, they have recom-
mended for the declaration of the languages
in consideration to be ‘classical’. The facts
which made the expert body recommend
the promulgation of such declaration has
also been placed before us and a copy has al-
so been furnished to the petitioner. As such
we do not find any reason to interfere in the
impugned declaration. This court cannot
convert itself into a forum for debate on
such matters.”
It concluded the judgment with an apt
quote by American author Oliver Wendell
Homes: “Every language is a temple, in whi-
ch the soul of those who speak it is en-
shrined.”
There was no reaction either from Tamil
activists or any political party in the state to
this judgment. But some sane voices wel-
comed this judgment. “The argument that
granting classical language status to other
languages will result in the loss of promi-
nence to Tamil is absurd. What’s happening
in Tamil Nadu in the name of language is
nothing but pure politics.... Those politi-
cians who are crying foul about Tamil being
not given proper status have failed to allot
American
Sanskrit scholar
Sheldon Pollock
says if the award
of classical
status is a
means to
ensure serious
scholarship, then
there are a
dozen or more
languages in
India that are in
need of this
recognition.
IL

O
N Independence Day, two
children, aged three and four,
lost their lives in Delhi to
“Chinese” manjha, the nylon
string used to fly kites. In sep-
arate incidents, they were looking out of the
sun roofs of their cars when the string cut
into their necks. The previous day, a motor-
cyclist was killed when a kite string caught
his throat, causing him to fall and hit his
head on the road. This led the Delhi govern-
ment to ban kite strings on August 18.
In a PIL to the Delhi High Court in
Zulfiquar Hussain vs Government of NCT of
Delhi, the petitioner sought a “complete ban
on sale, production, storage, supply and use
of nylon, plastic and Chinese manjha and
other kite-flying thread that is sharp or
made sharp such as being laced with glass,
metal or other sharp objects in National
Capital Territory of Delhi” as it had caused
injuries and even deaths. The petitioner’s
nephew was seriously injured by nylon/plas-
tic kite thread. The petition cited various
newspaper reports of injuries and even
deaths due to synthetic kite string around
Many have died due to lethal kite strings,
evoking numerous laws across India. But it
would be more effective for the center to
implement one law to ban them
By Nayantara Roy
Death
ona
String
COURTS/Kite-Flying
POPULAR TRADITION
(Top) A participant flying
a huge kite during the
International Kite Festival
in Ahmedabad;
(Above right) Thread
makers preparing
special kite string ahead
of the Uttarayan festival
in Surat
UNI

IL
the country. These included the death of an
engineer in Bareilly when his throat was
slashed by kite string, a five-year-old boy
riding a bike with his father, a ten-year-old
in Delhi, a three-year-old girl in
Ahmedabad...the list goes on.
Similar petitions have been filed in Uttar
Pradesh, Rajasthan and Maharashtra. The
Allahabad High Court in its judgment in
Anurag Misra vs State of Uttar Pradesh on
November 19, 2015, ordered the prohibi-
tion, sale and use of this synthetic string
which they described as metallic/nylon,
including a glass coating. The petition
sought that kite-flying be restricted to desig-
nated areas and drew attention to the fact
that birds too were affected by this string.
The petition was filed after a death was
caused by the string.
An article in Scroll explains that
“Chinese manjha” is not really Chinese.
Polyproylene, which forms a large compo-
nent of the string, used to be imported from
China and Taiwan, hence
the name. But the string is
manufactured indigenously
in places like Bangalore,
Noida and Sonipat. It is
cheaper than Bareilly cotton
string that was traditionally
used and has a higher ten-
sile strength. It is banned in
Gujarat, Maharashtra,
Andhra Pradesh, Telengana
and Karnataka and in the
cities of Cuttack, Mumbai,
Allahabad and now Delhi.
The Allahabad High
Court in the Anurag Misra
case said: “We are conscious
of the limitations on the evi-
dentiary value of such news-
paper reports. However, having due regard
to the element of public interest involved,
we are of the view that the matter is serious
enough to warrant appropriate action by the
District Administration as we shall now
indicate, at a wider state level, since the
problem may not be only confined to the city
of Allahabad.” The Allahabad High Court
had hastened to clarify that it is not banning
kite flying per se, just the use of this danger-
ous string. It left the decision of designating
areas for kite-flying to the administration.
Even in the petition before the Delhi
High Court, the Court had expressed the
need for more data. Nevertheless, the fact
that people were being killed by the string
was such a serious issue that both courts
preferred to ban the use of the string.
D
efinitions of “Chinese” manjha vary,
although there appears to be con-
sensus that it is synthetic and has
glass or other sharp objects like metal
embedded in it. Different states have used
different methods to ban the string. In Uttar
Pradesh, the additional district magistrate,
Allahabad, issued an order under Section
144 of the Code of Criminal Procedure ban-
ning the manufacture and sale of Chinese
manjha. In Delhi, while Section 133 read
with Section 142 of the CrPC has been
invoked as an emergency measure till
October, a notification under Section 5 of
the Environment (Protection) Act, 1986, has
been passed banning the manufacture and
sale of this dangerous string. As such a noti-
fication allows time for objections, measures
under the CrPC have been put in place in the
interim by the divisional commissioner.
Widespread pleas for banning this string
may need an order across the country by the
central government. One kite string trader
reportedly said that the government has not
even clearly defined Chinese manjha.
Different states were using different laws to
ban the string. An appraisal of the most
effective laws should be done to ban it and it
should be implemented countrywide.
Both the Delhi and Allahabad High
Courts emphasized the need for the govern-
ment to spread awareness about the dangers
of using this kind of thread. There has been
a long tradition of dipping kite string in
glass paste. People must be informed that
such strings can kill.
Kite-flying has been evocative of happy
childhood and freedom, with festivals like
Independence Day and Makar Sankranti
being synonymous with this symbol of free-
dom. To retain these simple pleasures of life,
a solution needs to be found to make kite-
flying safe.
In UP, the
additional district
magistrate of
Allahabad issued
an order under
Section 144 of
the Code of
Criminal
Procedure
banning the
manufacture and
sale of Chinese
manjha. In
Delhi, Section
133 read with
Section 142 of
the CrPC has
been invoked as
an emergency
measure till
October.
UNI

T
HE division bench of Justices
VM Kanade and Revati Mohite
Dere pronounced a historic
judgment on August 26 allowing
Muslim women in the sanctum
sanctorum of the Haji Ali Dargah in
Mumbai. The verdict came four years after
the Haji Ali Trust had debarred women from
entering the sanctum sanctorum.
“The ban imposed by the Dargah Trust,
prohibiting women from entering the sanc-
tum sanctorum of the Haji Ali Dargah
contravenes Articles 14, 15 and 25 of the
Constitution, and as such restore status-quo
ante i.e. women be permitted to enter the
sanctum sanctorum at par with men. The
State and the respondent No. 2 the Trust
(have to) to take effective steps to ensure the
safety and security of women at the said
place of worship,” pronounced Justice Revati
Mohite Dere.
On upholding the rights of women which
had been denied in this case in contraven-
tion of the Constitution of India, Justice
Mohiti Dere elaborated, “The State is equally
under an obligation to ensure that the fun-
damental rights guaranteed under Articles
14, 15 and 25 of the Constitution are protect-
ed and that the right of access into the sanc-
tum sanctorum of the Haji Ali Dargah is not
denied to women.” The court however stayed
its order for six weeks, allowing the Trust to
appeal in the Supreme Court.
The court battle was initiated by the
Bharatiya Muslim Mahila Andolan (BMMA)
which took legal recourse to get back the
right of women to pray in the inner sanctum
sanctorum. At first it had appealed to vari-
ous authorities including the chief minister
for justice but when all efforts failed Dr
Noorjehan Safia Niaz and Zakia Soman, co-
founders of BMMA approached the High
Court. They asserted that the entry of
women was permitted till four years ago
when the Trust had in a meeting unanimous-
ly passed a resolution debarring their entry
into the sanctum. According to the Trust, it
is a grievous sin, as per Islam. The Trust
claimed that it is governed by the Consti-
tution and particularly Article 26 which
confers upon it a fundamental right to man-
age its own affairs in matters of religion and
disallows interference of a third agency. The
court however did not find this claim justifi-
able and struck it down.
A jubilant Noorjehan told India Legal,
“This order is a milestone for BMMA and
Muslim women in the fight for their rights.
This order will help restore Islamic and
democratic values. The constitutional frame-
work is there hence we can't be discriminat-
ed upon. Moreover, the Haji Ali Dargah
Trust is registered under Public Charities Act
which means it is bound by the laws of
the land.”
Meanwhile, trustees of the dargah have
said they will appeal in the Supreme Court.
They seemed surprised with the judgment
but refused to critically comment on the ver-
dict. Suhail Yacoob Khandwani, additional
trustee told India Legal, “We are not here to
say what the court should do or not because
we too agree the law of the land should be
protected. However, the trust still maintains
that there are separate rights for men and
women in Islam. There is a right to protect
one's religion, Islam doesn't say discrimi-
nate. All are equal but there are certain
rights for women and men.”
This is the second victory in recent times
for women in Maharashtra vis-à-vis entry
into places of worship. Earlier they were
allowed to enter inside the prayer area in the
Shani Shingnapur Temple.
COURTS/ Maharashtra/ Places of Worship
Discrimination
theLoserThe recent
Bombay High
Court verdict
allowing
women entry
into the
sanctum
sanctorum of
the Haji Ali
Dargah is a
shot in the arm
for gender
justice
By Neeta
Kolhatkar
IL
tourmet.com

IL
W
HILE there are several crit-
ics of judicial activism, a
court’s interference in the
functioning of governments
and civic authorities, can
also yield positive results. Take the recent
case where the construction of an old-age
home in Jharkhand was implemented fol-
lowing strictures by the state High Court.
Care of the aged population is a growing
concern as more and more families go
nuclear and the elderly become marginal-
ized, neglected, and in some cases even
homeless. The Jharkhand Senior Citizen
Advocates Service Sansthan, through its
president CD Singh, recently filed a PIL
addressing the issue. The case first came up
for hearing on February 10.
The petitioners wanted the state govern-
ment to formulate rules under Section 30 of
the Maintenance and Welfare of Parents
and Senior Citizen Act, 2007. They wanted
the state government to take steps for set-
ting up “old-age homes” in all districts.
The matter was taken up in the court of
Justice Virendra Singh, (Chief Justice,
Jharkhand High Court) and Justice Shree
Chandrashekhar. The government’s counsel
responded that it had already created the
legal framework under the “Jharkhand
Maintenance of Parents and Senior Citizens
Rules, 2013”.
Taking up the second demand, the Court
directed that the state take immediate steps
for identification of land measuring at least
about one acre in a residential locality for
establishing one “old age home” in Ranchi.
The court directed Manoj Kumar, Deputy
Commissioner, Ranchi, to identify appropri-
ate land. Kumar informed the Court that the
state had identified one acre land for con-
struction of the “old-age home” in Chiroundi
village, about 3-4 kms from Ranchi.
The state government further committed
to the Court that it was planning a 50-bed
home for the aged (with a provision for 50
more beds), and the cost of the project
would be `3.82 crore. The plan for the home
was drawn up by PK Singh, executive engi-
neer, building construction department of
the Jharkhand government. After obtaining
approval from the Planning Empowerment
Committee, it was submitted to Chief
Minister Raghubar Das for approval.
In its order dated August 3, 2016, the
High Court expressed satisfaction at the
task accomplished. The foundation stone of
the old-age home was laid on August 15,
2016, by centenarian Ved Narayan Gaud,
aged 102.
Chief Justice Virendra Singh and Justice
Shree Chandrashekhar must be credited for
addressing the issue. What is remarkable is
that the matter was expedited by all stake-
holders within five months of the High
Court taking up the PIL.
COURTS/ Jharkhand
Positive ActivismThe higher judiciary in the state ensures that the government
becomes pro-active in setting up an old-age home
By Prabhat Singh in Ranchi
PURPOSEFUL MOVE
(L to R) Chief Justice
Virendra Singh and
Justice Shree
Chandrashekhar

COURTS
All dying declarations need not be bona fide
and a person can’t be held guilty just bec-
ause the declaration holds him/her responsible,
the Bombay High Court observed. The court
further clarified that this was more relevant in
cases where the person giving the declaration
was not “conscious or well-oriented”.
The court’s observations came in a case
wherein a man was alleged to have set his wife
on fire. There were several dying declarations
given by his wife in front of the police and
executive magistrate, Nashik, saying the
husband had no role in her death.
However, in one declaration, the
wife blamed her husband of killing her.
But that came after her uncle had filed a
police complaint and the statement was
taken orally in the presence of her parents
and uncle.
The court took into account the different
versions of dying declarations and felt that the
accused could be granted bail while the trial
could continue to find the truth.
The Court ruled that it must be satisfied
that the dying declaration was genuine as there
was no way in which a dead person could be
grilled.
Concluding that it was a “bru-
tal, “inhuman” and “cold
blooded” crime a trial court in
Delhi awarded death penalty to
Ravi Kapoor and Amit Shukla,
responsible for killing an IT
executive Jigisha Ghosh. The
third convict, Baljeet Malik, was
awarded a life term.
Jigisha, an operations mana-
ger with Hewitt Associate was
kidnapped and killed in March
2009 and her body later found
in Haryana.
The court observed that the
harsh sentence was the need of
the hour as horrifying crimes
against woman were becoming
rampant. It felt that the crime was
gruesome enough to fall in the
“rarest of rare” category.
Fines were also slapped on all
the three convicts. While Kapoor
was asked to cough up `1.2
lakh, Shukla and Malik were
ordered to pay `2.8 lakh and
`5.8 lakh, respectively.
The Court also ruled that `6
lakh of the total fine amount from
all three be given to Jigisha’s
parents, who had lost their only
child. It also directed the Delhi
Legal Services Authority (South
District) to fix a befitting compen-
sation to them. The court’s deci-
sion was based on the premise
that Jigisha was the only earning
member in her family.
Harsh sentence for Jigisha’s
murderers
Doubt about dying declarations

The media must refrain from disclos-
ing the names of lawyers and even
judges unless absolutely necessary
while publishing or telecasting stories
on courts, the
Madurai bench of the Madras High
Court ruled. The Court observed that
they were getting unnecessary publicity
through media reports. It directed the
Registrar (Administration) to ask the
media to do so.
The significant verdict came after
the High Court found that an advocate
had filed a baseless PIL related to the
Dalits, just to hog media headlines.
He had alleged that the Dalits booked
under the POSCO Act by the Madurai
District Police in August had been
needlessly singled out, and demanded
compensation for them.
However, the advocate had noth-
ing to cite but news reports to support
his contention.
The Court also asked the Regis-
trar (Judicial) of the High Court to
inform and discuss the matter with the
Bar Council of Tamil Nadu and Pudu-
cherry and take action against the
advocate within six months. It felt the
advocate must be punished for breach-
ing the Code of Ethics and professio-
nal Conduct.
The PIL was dismissed.
It is time to do away with admitting
students under the sports quota in
educational institutions, as the practice
is only serving as a window for
mediocre students to gain entry, the
Hyderabad High Court observed. It
asked all state governments to take up
the issue seriously.
The Court gave its response while
dealing with a petition of an MBBS
student who wanted to secure admis-
sion on the basis of sports quota. He
had been denied admission by the NTR
University of Health Sciences. The stu-
dent had claimed that he be given
admission as per the sports quota
mandated by state government in 2008.
The state had included six more games
in the category.
Holding that sports quota had no
constitutional basis, the Court took
Andhra Pradesh government to task for
including “insignificant’ games under
the sports category.
No names of
lawyers & judges
in media
Stop admissions under sports quota
Justice Manjulla Chellur took over as
the new chief justice of the Bombay
High Court recently. She is the second
woman after Sujata Manohar (1994) to
occupy the august post.
Prior to her appointment as chief
justice of the Bombay High Court, Jus-
tice Chellur was the chief justice of the
Calcutta High Court.
She has also served as a perma-
nent judge of the Karnataka High
Court and chief justice of the Kerala
High Court.
She told India Legal in an exclusive
interview: “I have come to a very busy
and extremely energetic state.” When
asked why the same energy was miss-
ing from the judiciary of Maharashtra,
she said: “I will do my best”.
Justice Chellur was transferred
from the Calcutta High Court after chief
justice of the Bombay High Court, DH
Waghela, retired on August 10.
She is likely to retire in 2017.
—Neeta Kolhatkar
New Chief Justice
of Bombay HC
— Compiled by Prabir Biswas;
Illustrations: UdayShankar

Salvebythe
Judiciary
The legal fraternity has often
put balm on the wounds of
couples hounded by their
relatives for marrying
against their wishes. This
sorry state of affairs can be
ameliorated by a more
liberal approach to life
By Nayantara Roy
LEGAL EYE/ Honor Killings
her home in Chennai by her parents.
According to advocate Kawaljit Kochar
who argued the case for them in the
Supreme Court, the wife had gone on a work
trip to Hyderabad where she met her father.
He took her to Chennai on the pretext that
the family was reconciled to their marriage
and would have a proper ceremony for
them. Instead, they kept her confined in
their home. She was beaten but was able to
smuggle a photograph of herself with bruis-
T
HE judiciary has often come to
the rescue of distressed couples
and given them hope of a bet-
ter life. On August 17, Chief
Justice of India TS Thakur
came to the rescue of a young couple who
had married against the wishes of the
woman’s parents. They had fallen in love
and got married in July this year, and settled
down to live in Noida, Uttar Pradesh. But
the wife, a working woman, was confined to
Amitava Sen

es to her husband via a visitor.
When her husband tried to contact the
family, he was threatened and told that he
should not attempt to come to Chennai. As
the husband had moved from Noida to
Delhi for a few days, both the Noida and
Delhi police refused to register an FIR citing
lack of jurisdiction. Eventually, his advo-
cates filed a habeas corpus petition before
the Supreme Court. While jurisdiction
would have vested in the Madras High Cou-
rt, Kochar explained that the apex court
could also be approached under Article 32
as the wife’s right to life under Article 21 had
been violated.
However, once apprised of the serious-
ness of the matter, Kochar said Chief Justice
Thakur speeded up the process. Chennai’s
police commissioner was asked to aid the
registrar-general of the Madras High Court
in getting access to the petitioner’s wife in
order to record her statement and verify the
truth of the allegations. When she affirmed
that she was being confined against her will,
she was escorted to a safe-house and
brought to Delhi where she was produced
before the Supreme Court and reunited with
her husband.
T
his story had a fairytale ending of
sorts with the CJI acting as the fairy
godmother. Without his intervention
and the quick thinking of the husband’s
lawyers, this story could have had a different
ending. Strangely, unlike other similar tales,
this couple was from the same community.
Yet, there was vehement opposition from
her parents.
Other stories have not ended so well.
“Honor” killings by parents or relatives have
seen the death of many young people who
marry against the wishes of their family.
There is a difference in the type of killings
depending on the power construct. Deep
seated patriarchal values have resulted in
daughters being killed by their parents or
other relatives. On the other hand, when the
victim is the male, it is usually the family of
the girl or other members of the community
who carry out the killing. In all cases there is
total disregard for the law of the land and
the rights of an adult.
JusticeSanjayKishanKaul
“In a democracy like ours,
we are even unwilling to
give the major boy and
girl the right to determine
whom they want to marry.”
ChiefJusticeofIndiaTSThakur
On August 17, he came
to the rescue of a young
couple who married
against the wishes of the
woman’s parents.
In November 2014, Bhavna Yadav, a 21-
year-old Delhi University student, was str-
angled by her parents for having married a
friend against their wishes. In 2002, the
killing of Nitish Katara by Vikas Yadav, the
brother of the girl who allegedly wanted to
marry him, grabbed headlines. Yadav is the
son of UP politician DP Yadav.
It’s not just family members who carry
out such killings. Whole communities get
involved in the lives of two adults, even
when their own families are not opposed to
their marriage. In June 2001, Manoj Ban-
wala and his wife, Babli, were killed by a
khap panchayat in Kaithal district in Har-
yana for having made a sagotra marriage. In
April, this year, parents of a Hindu-Muslim
couple in Mandya district near Mysuru in
Karnataka sought police protection for the
wedding as caste groups and Hindu activists
were threatening the families.
In July this year, Madras High Court
pulled up the Tamil Nadu administration
for not being able to control an attack on

IL
Dalit colonies in Dharmapuri district by
upper caste groups. The attacks were trig-
gered by the suicide of the father of an upper
caste girl who had married a Dalit boy
against her father’s wishes. The boy was also
found mysteriously killed by the side of rail-
way tracks.
Conservative groups don’t see marriage
as an individual choice but as the joining of
an entire family with another. Extend that to
a community and you get busybodies ready
to commit murder.
Other countries such as Pakistan suffer
from this malaise as well. While the death of
Qandeel Baloch, a Pakistani model and
actress, at the hands of her brother has been
reported widely, there are other instances of
honor killings such as that of Aqsa Bibi and
her husband, Shakeel Ahmed. Both had
a court marriage against the wishes of
Bibi’s family. Her brother kidnapped them
and shot them both, this, despite his sister
being pregnant.
In 2004, Shafilea Iftikhar Ahmed, a 17-
year-old British Pakistani girl in the UK,
was suffocated to death in 2004 with a plas-
tic bag by her father while her mother sorted
out blankets and sheets, bin bags and tape
with which to dispose of her body. The rea-
son was that she did not want an arranged
marriage. In 2012, a UK court sentenced her
parents to life imprisonment with a mini-
mum of 25 years.
It is obvious that in India, having laws
alone won’t help. It is important to build
awareness among the general public, the
police force and in educational institutions
about the benefits of having a more liberal
outlook to life.
Justice Sanjay Kishan Kaul, chief justice
of Madras High Court, put the problem in a
nutshell when he said: “In a democratic
country like ours, we are even unwilling to
give the major boy and girl the right to
determine whom they want to marry. Not
only that, life and property are lost in the
meaningless fury of one community against
the other, reflecting a sorry state of affairs of
the society.”
However, the judiciary can provide suc-
cor to such distressed couples as was seen in
the Noida case.
Honor killings
by parents or
relatives have
seen the
death of
many young
people who
marry against
the wishes of
their family.
HEINOUS KILLINGS
(Right) Vikas Yadav, the
son of a UP politician,
was allegedly involved
in the murder of
Nitish Katara;
(Far right) Qandeel
Baloch, a Pakistani
model, was a victim of
honor killing
LEGAL EYE/ Honor Killings
Rajeev Tyagi

Bengaluru police have booked a
case against human rights advo-
cacy group Amnesty International on
sedition charges. An ABVP member
filed a complaint against the group
for having organized Broken Fami-
lies, an event on alleged rights viola-
tions in Kashmir. The FIR was regis-
tered under Sections 142, 143
(unlawful assembly), 147 (rioting),
124a (sedition), 153a (promoting
enmity) and 149 (common intent) of
the IPC. The group had invited fami-
ly members of those who have disap-
peared. Some people also raised slo-
gans against the army’s presence in
Kashmir while later on slogans for
azaadi were also raised. The Supre-
me Court has ruled in the past that
expression can be restricted on
grounds of pub-
lic order only
when incite-
ment to immi-
nent violence or
disorder is
involved. The
ABVP has,
however,
demanded the
arrest of people
who participat-
ed in this “anti-
national” event.
NGOs that apply for funding from for-
eign countries through the prior per-
mission route can do so only for a maxi-
mum of two times. The NGOs will have to
necessarily register themselves under the
Foreign Contribution (Regulation) Act
2010 after the second time in order to con-
tinue receiving funding from abroad. The
prior permission facility is essentially
meant for start-ups and they cannot make
use of it more than two times for the same
project. This move comes as a fresh inter-
pretation of Section 12 of FCRA, 2010 and
Rule 9 of FCRA Rules. If enforced, the rule
will impact NGOs like Amnesty India
which has applied eight times for prior
permission to receive funding from abroad
since 2000.
Double-check for judges’ appointments
The list of five lawyers for
appointment as judges and
transfer in the Delhi High Court
has left the government bewil-
dered. Out of the four cases ,
three have been sent to the
Intelligence Bureau for a double-
check on their background and
credentials.
This was because the govern-
ment was baffled with the first
report sent to it by the IB. The IB
left the “Integrity” column blank
for one candidate in its first
report. In the second case, it said
that the candidate had not fought
any major case. In the third case,
the IB said that his brother found
mention in the Essar tapes. The
fourth case pertains to a sitting
judge of a district court of Delhi
whose recommendation had been
stalled in 2014 for alleged finan-
cial improbity. These names were
sent for clarification to the IB a
second time in July.
The Odisha police
have booked
Congress MLA K
Surya Rao, also the
chief of a forum to
safeguard royal prop-
erties (Maharaja
Suraksha Committee),
for allegedly abetting
the suicide of two
Gajapati palace
staffers and their sib-
lings. Palace manager
Ananga Manjari Patra
and her three siblings,
including erstwhile
Puri royal Gopinath
Gajapati Narayan
Deo's personal assis-
tant Sanjay, allegedly
killed themselves
recently. On a com-
plaint by the commit-
tee, Ananga and
Sanjay had earlier
been booked for
reportedly trying to
grab Deo's property.
Rao is one of several
people, including
BJD’s former Gajapati
district chief Basant
Das, who have been
booked on a com-
plaint filed by a broth-
er of the deceased.
Both Rao and Das
have described the
allegations against
them as “baseless”.
Amnesty booked
for sedition
No prior nod for NGOs
NATIONAL BRIEFS
— Compiled by Karan Kaushik
MLA booked for palace
suicides

ACTS & BILLS/ Transgender Persons (Protection of rights) Bill 2016
T
AKA de chokra (Give me money,
boy).” Wearing a shabby salmon-
coloured salwar kameez, 40-year-
old Anju begs near Connaught
Place, earning `100-200 per day.
She is there every evening and leaves late at
night. Though Connaught Place has many
beggars like her, she stands out. She is a
transgender.
In search of their identity and aban-
doned by families, most transgenders resort
to begging or sex work as they are unable to
find regular employment. However, the new
Transgender Persons (Protection of Rights)
Bill 2016 passed by the cabinet in July
brings good news to the community.
FORWARD-LOOKING BILL
The Bill states: “Whoever compels or entices
a transgender person to indulge in the act of
begging or other similar forms of forced or
Victoryfor
ThirdGender?Though this Bill is a welcome move, unless
society changes its perception and abuse
of transgenders, little progress will be
made for them to lead a life of equality
By Usha Rani Das
“
EEKING OUT A LIVING
Anju begs near Connaught
Place in Delhi
Anil Shakya

bonded labor other than any compulsory
service for public purposes imposed by the
government shall be punishable with
imprisonment for a term which shall not be
less than six months but which may extend
to two years and with fine.”
It recognizes the rights of transgenders
as a third gender, gives them identity and
accepts them in all public spheres of life—
education, healthcare and politics. The Bill
has been welcomed by the community.
Lakshmi Narayan Tripathi, a trans-sexual,
posted this on social media: “I thank the
Indian Modi Government, specially the
ministry of social justice and empowerment.
Special thanks to Arun Jaitleyji to support
cabinet minister Thaawar Chand Gehlot for
passing the transgender bill in the cabinet.
India is making history and we are the glob-
al leader in the trans-movement.” Anjali
Gopalan, founder and executive director of
Naz Foundation (India) Trust told India
Legal: “Now there is something for the com-
munity to fall back on.”
It was in 2014 that the Supreme Court
recognized transgenders as the “third gen-
der”. In National Legal Services Authority vs
Union of India and others, Justices KS
Radhakrishnan and AK Sikri observed:
“We, therefore, declare Hijras, Eunuchs,
apart from binary gender, be treated as
‘third gender’ for the purpose of safeguard-
ing their rights under Part III of our
Constitution and the laws made by the
Parliament and the State Legislature.
Transgender persons’ right to decide their
self-identified gender is also upheld and
the Center and State Governments are
directed to grant legal recognition of their
gender identity such as male, female or as
third gender.”
EMBRACING SEXUALITY
This long-awaited victory led to pride
marches by transgenders all over the coun-
try. Hundreds came out in the open and
embraced their sexuality. But the road has
been rough after that, even though trans-
genders like Laxmi have attained national
recognition and are seen at various forums
for transgenders.
This community is slowly entering the
mainstream, be it politics, entertainment or
academics. Following a suggestion by the
Kochi police, Kochi Metro will hire trans-
sexuals in housekeeping, customer care and
crowd management. In another remarkable
move, two transgenders voted in the assem-
bly elections in Kerala, a first for them.
Hailing from Thiruvananthapuram,
Kochi Metro will
hire transsexuals
in housekeep-
ing, customer
care and crowd
management. In
another
remarkable
move, two
transgenders
voted in the
assembly polls
in Kerala, a first
for them.
AnjaliGopalan,Nazfounder
She is happy that
now there is
something for the
community to fall
back on.
LaxmiNarayanTripathi
She thanks the Modi
government for
passing the Bill and
says India is making
history.
ManabiBandopadhyay
She became the
first trans-sexual to
become the
principal of a
college in India.
MeeraParida
She feels the Bill is
discriminatory as it
does not include the
Transgenders
Marriage Act.

Surya, a mimicry artist in TV comedy shows,
exercised her franchise at a booth in
Vattiyoorkavu constituency, while Suji voted
in Nattika in Thrissur. The community also
contested elections in Tamil Nadu. C Devi,
33, contested against AIADMK supremo
J Jayalalithaa.
The eastern states are not far behind
either. Riya Sarkar became the first trans-
gender to man a polling booth in this year’s
assembly elections in West Bengal. A
teacher at Dum Dum Prachya Bani Mandir
for boys, she came dressed in a sari. She
reportedly said that she wanted to “make
sure” that everyone addresses her as
“madam”. She stated: “All my life people
have made fun of me; now I am confident
enough to assert myself.” On the other hand,
Manabi Bandopadhyay became the first
trans-sexual to become the principal of a
college, Krishnagar Women’s College in
West Bengal.
Realizing that our education system
plays a major role in creating awareness,
Meera Parida, a transgender from Odisha,
told India Legal that she was in talks with
the women and child development ministry
to include the definition of third gender in
the syllabus. Sanjeev Bhatnagar, a lawyer
who highlighted the cause of the Kinnar
community and stated that they are the
most deprived group of the third gender,
said: “They don’t have to hide anymore. This
bill would increase awareness about the
third gender in society.”
ABUSE AND HARASSMENT
However, these victories have not been easy
to come by. Two years after the Supreme
Court judgment, they are still subjected to
endless cruelty. Bandopadhyay was beaten
up and threatened before the state assembly
elections by professors of Krishnagar
College. She was also harassed in a college in
Jharkhand where she was previously a pro-
fessor. She told India Legal: “How does it
even matter?” She said that unless there
were significant changes in practice, it didn’t
matter what law or bill is passed. For some-
The Bills states:
No person shall discriminate against
a transgender person in educational
establishments, employment or occupa-
tion, healthcare services, accommoda-
tion, service, facility, benefit, privilege or
opportunity dedicated to the use of the
general public. This includes the right to
reside, purchase, rent, or otherwise
occupy any property, the opportunity to
stand for or hold public or private office.
The government shall take such
measures as may be necessary to pro-
tect the rights and interests of the trans-
gender person, and facilitate their
access to welfare schemes.
The central government shall by notifi-
cation constitute a National Council for
Transgender to exercise the powers
conferred on, and to perform the func-
tions assigned to it.
Whoever compels or entices a trans-
gender person to indulge in the act of
begging or other similar forms of forced
or bonded labor other than any compul-
sory service for public purposes
imposed by the government, forces or
causes a transgender person to leave
house-hold, village or other place of
residence shall be punishable with
imprisonment for a term which shall not
be less than six months but which may
extend to two years and with fine.
TransgenderPersons(ProtectionofRights)Bill2016
EMBRACING THE
RHYTHMS OF LIFE
Eunuchs dance to
Bollywood numbers on city
roads at a rally as part of
their Akhil Bhartiya
Manglamukhi Maha
Sammelan in Jammu
ACTS & BILLS/ Transgender Persons (Protection of rights) Bill 2016
UNI
UNI

India legal 15 September 2016

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India legal 15 September 2016