India Legal 16 April 2018

NDIA EGALL
` 100
I
www.indialegallive.com
April 16, 2018
TheviolentagitationsbyDalitsmayhaveendedbuttheSC/STActand
allegationsofitsdilutionbytheSupremeCourthasturneditintoan
explosivepoliticalandelectoralissue
SC Petition: Can
lawmakers practice law?
Copyright Act:
Amitabh’s lament
WHYBLAMETHE
JUDICIARY?

prominent news website recently
quipped that Information and
Broadcasting Minister Smriti Irani
had most likely failed to remember
the meaning of her first name. The
word “smriti” means memory. And had Irani put
her powers of recall to full use she would proba-
bly have thought twice before issuing her
ill-fated order which was directed against accre-
dited journalists for disseminating “fake news”.
As hastily withdrawn, at the prime minister’s
intervention, as it was issued, the Smriti Diktat
would punish journalists on the basis of mere
allegations of “fake news” through withdrawal of
their accreditation—a government-issued badge
that allows them access to officialdom.
This thinly veiled attempt to gag the media
was the second time in less than a year that the
ruling BJP’s mandarins were forced to backtrack
under a barrage of protests. Had Irani forgotten
so soon how a similar, perhaps more draconian,
attempt by Rajasthan Chief Minister Vasun-
dhara Raje to muzzle the press through an ordi-
nance which would have punished the reporting
of corruption charges against government offi-
cials had bitten the dust?
Actually, the Modi government is not very
different from others, in India as well as across
the world, in trying to scuttle press freedom by
attacking it from public pulpits, trying to curb it
through the law, buying out powerful news orga-
nizations or intimidating owners and reporters.
In the worst case scenario (as an investigative
report in this issue shows), reporters who
doggedly expose unpleasant truths are simply
murdered. Gauri Lankesh’s daylight extermina-
tion at her own doorstep is only one of many
such examples.
Actually, India is now ranked 136 on the lat-
est World Press Freedom Index. It is placed in
the “difficult situation” slot, with nations like
Pakistan and Afghanistan. “With Hindu nation-
alists trying to purge all manifestations of anti-
national thought from the national debate, self-
censorship is growing in the mainstream media.
Journalists are increasingly the targets of online
smear campaigns by the most radical national-
ists, who vilify them and even threaten physical
reprisals,” the report said.
The watchdog’s analysis also found that pros-
ecutions were used to “gag journalists overly crit-
ical of the government”, including the use of the
sedition law that comes with life imprisonment
as punishment.
Irani’s record in dealing with the press is not
exactly an envious one if we use this internation-
al standard. In March 2016, an official forensic
report found that Shilpi Tiwari, an aide close to
her, had peddled doctored videos of JNU stu-
dents allegedly mouthing anti-national slogans.
More recently, a senior journalist who courted
controversy for running provocatively sensitive
fake news about the Hindu-Muslim clashes in
Kasganj, UP, was Irani’s choice for a plum job at
Prasar Bharati.
Why do people in power suspend their mem-
ory when it comes to throttling the press? Be-
cause they really believe they can get away with
it. But in a country with a strong Constitution
and a functioning democracy, it is not as easy as
it sounds. In India, freedom of speech is guaran-
teed under Article 19(1) (a) of the Constitution of
India. Apart from this, provisions relating to
freedom of speech are also contained in various
international conventions like the Universal
Declaration of Human Rights (UDHR), Euro-
pean Convention on Human Rights and
the International Covenant on Civil and
Political Rights.
The Indian experience shows how most
attempts at curbing this freedom have simply
not succeeded. Raje and Irani are not the only
ones who have tried and failed. Prime Minister
Indira Gandhi, perhaps the most powerful leader
India ever had, was to face a bitter consequence
of censoring the media during the Emergency.
KEEP THE REPUBLIC
GOING, FOLKS
Inderjit Badhwar
Letter from the Editor
A
| INDIA LEGAL | April 16, 2018 3

Her Information Minister Vidya Charan
Shukla and his army of censors ensured that
nothing adverse to the Emergency, which had
suspended democracy and jailed the opposition,
should appear anywhere. What replaced truthful
and free reporting was the fake news that the
steps taken during this period—among them
sterilization of males, suspension of habeas cor-
pus, arbitrary arrests, rigid discipline and slum
clearance, re-forestation—were wildly popular.
B
elieving the universal government-spon-
sored fake news that she was riding a
tidal wave of popularity, she ordered elec-
tions to be held. She was swept out of office. In
the absence of alternative, free reporting, she
had become a victim of her own propaganda
spin doctors. Even while most newspapers and
their owners crawled before her, the public
remained ever conscious of its rights. Having
tasted the ballot and the freedom that goes
with it for some two decades, the people were
not about to relinquish so easily their fundamen-
tal rights.
Smriti Irani is not the only one with a short
memory. Jagannath Mishra’s infamous press bill
met the same fate as did Jayalalithaa’s, and so
did the draconian defamation bill of Mrs
Gandhi’s son, Rajiv in the 1980s.
There is no gainsaying that fake news is a
huge problem. It always has been and its most
ardent purveyors are governments, whether they
are authoritarian or liberal. Dissemination of
information is distorted through layers of
bureaucratic prisms. It is the reporter’s duty to
catch the real news and report it fairly before
this prismatic distortion is allowed to occur.
George Orwell saw this with rare clarity in his
dystopian novel 1984. The most important gov-
ernment department was the Ministry of Truth
whose only purpose was to spread lies about an
imaginary war in order to manufacture “nation-
alism” and loyalty to Big Brother, the ruler. It
was also assigned the task of controlling history
(“if you control the past you control the present”)
and creating a new language called Newspeak.
This lexicon was designed to corrupt the mind to
restrict rather than to broaden ideas.
Thus, freedom became slavery and slavery
equalled freedom. Truth became lies (or fake
news) and lies became truth. In fact, the other
important arm of Big Brother’s government was
the Ministry of Plenty whose sole purpose was to
continue to spread the word, mostly through
the controlled media, that the nation was
thriving, when, in fact, there were starvation
and shortages.
Big Brother also coined a slogan to describe
his vision and hypnotize the public. He called his
doctrine “Ingsoc” (short for English Socialism).
In real life, Stalin beguiled his masses with “pro-
letarian power” even as he murdered his own
people. Mao’s “little red book” fooled the Chinese
with utopian well-being even as millions starved
in Henan.
Hitler’s propaganda minister Joseph
Goebbels, the master of fake news, used the
media to spread lies about the Jews to fan anti-
semitism as the leitmotif of the blood-thirsty
Third Reich; he also invented false attacks on
Germans living in Czechoslovakia and German
outposts by Polish forces in order to justify
Hitler’s invasion of those countries.
Letter from the Editor
4 April 16, 2018
PRESSURE ON
THE PRESS
(L-R) Union
Information and
Broadcasting minister
Smriti Irani; Vidya
Charan Shukla, who
was the information
minister under Indira
Gandhi during the
Emergency. Their
attempts to gag the
media backfired
Whydopeoplein
powersuspendtheir
memorywhenit
comestothrottling
thepress?Because
theyreallybelieve
theycangetaway
withit.Butina
countrywithastrong
Constitutionanda
functioning
democracy,itisnotas
easyasitsounds.

America, possibly still the freest and most
open society in the world, has not been immune
to fake news and attempts to control the media.
President Trump, known to be a habitual,
shameless and congenital liar, calls the media
“the real enemies of the American people”. Spiro
Agnew, President Nixon’s vice president, who
had to resign in disgrace, called the press “the
nattering nabobs of negativism” when the
administration’s policies were under attack.
F
ake news billowed out of the Pentagon
during the Vietnam in the 1960s and
1970s war trying to make success out of
abject failure. Reporters who covered the daily
evening military briefing in Saigon dubbed this
the “Five O’Clock Follies” because they knew
they were being lied to about body counts and
ground realities. Richard Pyle, Associated Press
Saigon bureau chief during the war, described
the briefings as "the longest-playing tragicomedy
in Southeast Asia's theater of the absurd".
Ingsoc, and the Communist and fascist slo-
gans were by no means unique. Slogans have an
immediate effect because they package the fake
identity and personality of a regime into a dream
line. Trump’s “America First” is catchy and clev-
erly concocted by a man who actually puts him-
self and his family interests ahead of America.
India, too has its slogans, catchy but meaningless
in the end: “Garibi Hatao”; “Social Justice”;
“Acche Din”. Slogans have a shelf life because
most of them turn out to be fake, and the public
ultimately sees through them. But in order to
propagate them, leaders and politicians need to
control or prevent the media from exposing
their hollowness.
Ultimately, the fight against fake news and
propaganda lies in the hands of fearless journal-
ists. Even during the most tyrannical control
over freedom of expression when fascists were
ruling Europe and dictators were running Iron
Curtain countries, the regimes feared small
underground pamphleteers and broadcasts and
free thinkers and poets as the greatest threat to
their hegemony.
The American press, individuals and propri-
etors and editors, has fought back relentlessly
and without flinching through endless vicissi-
tudes, and remains free, today taking on Trump’s
mighty machine blow for blow. In India, the
fight against control and exposes of fake news
has been waged mostly by a handful of web por-
tal and social media chat rooms.
The opposition is formidable. The troll
wehrmacht is fearsome. But somehow, in this
diverse land with a savvy young and IT-literate
population, the truth seeps out. Fake news like a
recent item purveyed by Postcard News about a
Jain monk been beaten up by minority assailants
in Karnataka, can create a violent reaction. But
the attempt failed only because it was effectively
countered by unassailable evidence to the con-
trary by Alt News which is now becoming a
fightback model for combating trolls and gov-
ernment propaganda.
Research, vigilance and a commitment to
professional standards of reporting can be a
powerful weapon against control and intimida-
tion. Finally, mainline media houses, many of
them somnolent for the last three years, are wak-
ing up to the importance of their own independ-
ence. The strongly worded letters written by the
Editors Guild and the Indian Newspapers
Association to the government opposing the
Irani diktat and questioning the re-constitution
of the Press Council and the Accreditations
Committee are new straws in the wind that have
started blowing. Ultimately, the Press has to
stand up for itself, or nobody else will.
The good thing is that India is not yet a dicta-
torship, nor Stalin’s Russia nor the Weimar
Republic and there are enough brave people
around with access to alternative media tools to
defend the powerful Constitution gifted to us by
the founding fathers. They were fearless and
matchless. They gifted us a Republic. Let us
keep it.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Research,vigilance
andacommitmentto
professional
standardsofreporting
canbeapowerful
weaponagainst
controland
intimidation.Finally,
mainlinemedia
houses,manyofthem
somnolentforthelast
threeyears,are
wakinguptothe
importanceoftheir
ownindependence.
RARE INSIGHT
George Orwell saw
with clarity the
problems posed by
fake news in his
dystopian novel 1984

ContentsVOLUME XI ISSUE 22
APRIL16,2018
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6 April 16, 2018
SUPREMECOURT
Sealed with
Indifference
While the centre and the court
spar over the spread of illegal
constructions in Delhi, thou-
sands have been rendered
jobless and homeless in the
absence of an alternative
plan. Is there a way out of
this mess?
17
Whose Fault Is It, Anyway?
Amid widespread violent protests against the apex court’s changes in implementing the SC/ST
(Prevention of Atrocities) Act, the government has been forced to seek a review of the verdict
LEAD
12

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
International Briefs..........31
Media Watch ..................47
Satire ..............................50
No Court to Call Its Own
Despite the Andhra Pradesh Reorganisation Act being enacted four years ago, both
Andhra Pradesh and Telangana continue to function from the same high court
32Lawyer and Lawmaker 20
42
In a first in Uttar Pradesh, two jailed legislators who are yet to be convicted were
prevented by the Allahabad High Court from voting in the Rajya Sabha elections
No Ballot Behind Bars
48Rights of a Child
Newspapers are flush with reports of
rapes of minors and their abandoned
offspring. In India, 170 million children
are living in difficult situations and need
care. Are our laws robust enough to
uphold their interests?
OPINION
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
Amitabh Bachchan may well
want his famous father’s
works to remain in his
possession forever, but
the Copyright Act puts them
in the public domain 60
years after the author’s death
44
To check bawdy music which glorifies drugs, guns and misogynistic mindsets, the
Punjab government will form a commission and act under various statutes
Culture Police
Under the Gun
The recent killings of three journalists again show the risks under
which they work and the lack of concern or action by authorities
SPOTLIGHT
28
ACTS&BILLS
Rebel with
No Cause
22
Follow what’s Universal
To draw foreign investments and make India an arbitration hotspot,
marrying national interest with a global outlook is key
26
34
Though it was introduced
with great fanfare by the
Uttar Pradesh government,
the outlawing of illegal
slaughterhouses has led to
more problems than benefits,
with a growing number of
bovines who raid crops and
attack people
A Ban that Backfired
STATES
38
The Madhya Pradesh chief minister has raised the retirement age of government
employees as this will benefit the exchequer and his party in the November polls
To Please the Vote Bank
LEGALEYE
A petition asking for a
ban on lawmakers
practising in courts
has started a serious
debate in legal circles
with the Bar Council
of India making
known its opposition
to the idea but with a
condition
MYSPACE

8 April 16, 2018
“
RINGSIDE
“Women who wear jeans
and shirts and dress like
men, give birth to chil-
dren called transgender.
There are over six lakh
transgenders in Kerala.”
—Rajith Kumar, a botany
professor from Kerala
“This is not like distribut-
ing biscuits. This is about
the lives of human being.
Did you get it? How do
I make an announcement
now? I don’t carry a box
full of money in my
pocket.”
—Minister of State for
External Affairs Gen
(Retd) VK Singh to jour-
nalists who asked if fami-
lies of those killed in Mosul
would get compensation
“I feel bad. He should be
given relief. He has done
a lot of humanitarian
work.”
—Jaya Bachchan, reacting
to Salman Khan’s arrest in
the blackbuck case
“These phrases like
Congress-mukt Bharat
are political slogans… it is
not in the parlance of the
RSS. The word mukt
(free or liberated) is used
in politics and not part of
the Sangh’s lexicon. We
never use the language of
excluding anyone.”
—RSS chief Mohan
Bhagwat at a book launch
in Pune
“Kejriwal has damaged
his credibility due to his
apologies tendered to dif-
ferent people against
whom he once levelled
allegations. It has left
the party workers demor-
alised... whatever the
national leaders say
echoes in different units
of the party.”
— AAP’s Kumar Vishwas
who did not apologise to
Arun Jaitley
“When you’re building something like
Facebook which is unprecedented in
the world, there are things that you’re
going to mess up. What I think people
should hold us accountable for is if we
are learning from our mistakes.”
—Facebook chief Mark Zuckerberg on why he deserves
to lead the company despite allegations of data leak
“It is obvious that we
have capable people to
manage our country, run
our country. No outsider
needs to know or tell us
what we need to do.”
—Sachin Tendulkar, react-
ing to Pakistani cricketer
Shahid Afridi's tweet
requesting the UN
to intervene regarding
Kashmir violence
“I am not saying this as
an IT minister... My per-
sonal opinion is Aadhaar
should not be linked
with the voter ID card. If
we do this, our detrac-
tors will say, ‘PM
Narendra Modi is snoop-
ing on us to know
what we eat, which
movie we are watching’
and so on. I don’t want
that to happen.”
—Union IT minister Ravi
Shankar Prasad

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
A new controversy has aris-
en over the fake author of a
book on the prime minister’s
radio show, Mann Ki Baat.
Ex-minister Arun Shourie told
a news channel that the man
listed as author, Rajesh Jain,
had nothing to do with it. To
add to the embarrassment,
Jain himself told the channel
that he was not the author.
Last year, two books were
released in Rashtrapati
Bhawan by the President.
One was Marching with a
Billion: Analysing Narendra
Modi's Government in Mid-
Term by India Today journal-
ist Uday Mahurkar who had
written an earlier hagiogra-
phy on Modi. The second
was Mann Ki Baat: A Social
Revolution on Radio. The
Press Information Bureau
release said it was authored
by Rajesh Jain, “a former
aide to Prime Minister
Narendra Modi”. Jain says
he was told to be present at
the function and has no idea
who wrote the book and why
he was asked to stand in for
the author. Despite his
denials, the PIB site and
narendramodi.in (Modi's
website) continue to present
him as the author. There is,
however, a connection
here with the PM. Jain works
with Bluekraft Digital
Foundation that used to
organise the Mann Ki Baat
broadcasts. Bluekraft is also
listed as “the technology
and knowledge partner” to
Exam Warriors, the second
book authored by the
prime minister.
FAKE AUTHOR
The speculation as to why Finance Minister
Arun Jaitley did not show up to be sworn in
as a Rajya Sabha member was because he
was in a special unit at the All India Institute
of Medical Sciences in New Delhi undergo-
ing tests for a serious medical condition
related to his kidneys. Jaitley has now
admitted he is unwell but his latest medical
problem is more serious and connected to
his long-time Type 1 diabetic condition.
In the run-up to the Lok Sabha elections,
the prime minister will not like to keep such
a key ministry headless, so Piyush Goyal
(far left) will be shifted from Railways to
handle the finance portfolio. The problem is
that Jaitley’s surgery could involve a trans-
plant and he is consulting with Amar Singh
who had a similar operation in Singapore.
Doctors say he could be out of action for as
long as 60 days, which would leave two key
portfolios, finance and corporate affairs, in
unfamiliar hands, and at a politically sensi-
tive time.
The engagement celebrations of
Akash Ambani and Shloka
Mehta in Goa recently were in
keeping with the status of his
father, Mukesh Ambani, as
India’s richest individual. The
family had flown down 100
guests from Mumbai in the two
private Airbus aircraft they use
for personal purposes. Nita
Ambani had flown in a day earli-
er. The family had taken over the
entire Taj Holiday Village and the
adjoining Taj Fort Aguada
Resort, coordinated by industri-
alist Raj Salgaonkar, who is mar-
ried to Mukesh’s sister and lives
in Goa. The decorations in the
lobby and party areas—huge
hearts made from wine coloured
roses and gold balloons—were
the most ostentatious that
money could buy, and the three-
tiered cake was cut to the
strains of a harp played by a
professional. The ceremony
ended with a spectacular fire-
works display that also featured
hearts exploding in the sky.
OPULENT FAREHORS DE COMBAT
The composition of the Advisory Committee
on Ministry of Defence Capital Projects is
questionable. Apart from retired bureaucrats
and members of the armed forces, it has
two civilians, Amber Dubey of Ernst & Young
and MH Rehman from KPMG. The commit-
tee tracks the progress of defence projects
over `500 crore. Many of these are sensitive
“Mission Mode” projects that include a guid-
ed rocket for the Pinaka multiple rocket
launcher, a medium-range surface-to-air
missile system, long-range SAM systems for
India’s indigenous aircraft carrier and a sub-
marine-launched cruise missile.
Both civilians are from leading account-
ing companies; one is British and the other
is headquartered in Holland. If defence firms
from those two countries are bidding for any
of the projects under review of the commit-
tee, there could be conflict of interest issues.
PRIVACY ISSUES

Bollywood star Salman Khan is out on bail,
following a two-night stay at Jodhpur jail
where he was noticed chatting up with jail
officials, relaxing in comfortable chairs and
was on April 7 also observed having a cup of
tea and striking a friendly conversation with
the DIG prison inside his chamber. His bail
application was barely opposed by
the prosecution.
The entire issue had boiled down to a
fight between the prosecution and the
celebrity status of the Bollywood actor, where
despite the best efforts of Judge Ravinder
Kumar Joshi, who has been hearing the bail
case, the celebrity seems to have won
the day.
Chief Judicial Magistrate Dev Kumar
Khatri had sent Salman to five years in
prison. Anything under three years and
Salman would not have had to appeal for
bail. He would have been allowed to go with
a bond.
It has also been questioned as to why the
other accused were let off despite a clear
case of violation of Sections 34 and 120B of
the IPC. If they could get the benefit of the
doubt, the argument is that Salman too
should get it. If not, then they should also be
in jail, say experts.
Salman’s alleged accomplices in the
crime, Bollywood stars Saif Ali Khan, Tabu,
Neelam and Sonali Bendre were set free.
Also acquitted was a local guide, Dushyant
Singh. Salman was accused of killing the
endangered blackbucks— belonging to the
antelope family—in Kankani village near
Jodhpur on the night of October 1, 1998 dur-
ing the shooting of the film, Hum Saath
Saath Hain.
The decision of the judge was in the
midst of a transfer order where the Rajasthan
government on April 7 transferred 87 judges,
including Judge Joshi. Joshi has been trans-
ferred to Sirohi from Jodhpur, but he gave the
verdict before the routine transfer could take
official effect.
The defendants had filed a 51-page bail
application saying that the witnesses are not
reliable and cannot be relied upon.
Courts
10 April 16, 2018
—Compiled by India Legal team
According to India Legal sour-
ces, the CBI has issued look-
out circulars against Deepak Ko-
chhar, the husband of ICICI Bank
CEO and MD Chanda Kochhar,
and Venugopal Dhoot, the promot-
er of the Videocon Group, and has
alerted all airports that they
should not leave the country until
the preliminary enquiry being
done by the CBI is complete. The
case relates to Dhoot’s `65-crore
loan given to Deepak, following a
`3,250-crore loan taken by
Videocon from ICICI Bank. The
CBI is probing if there was any
quid pro quo. It is already ques-
tioning Deepak's brother Rajiv
Kochhar on the issue.
Former President Pranab
Mukherjee’s most recent
book—The Turbulent Years
1980-1996—has hit some tur-
bulence. While the first one
was from extreme right-wing
activists, the second was from
the Delhi High Court. On April
6, the High Court’s Justice
Pratibha M Singh sent a notice
to the former president, asking
him to reply to a charge in a
suit filed by a social worker,
UC Pandey, and some lawyers.
They wanted some portions of
Mukherjee’s book deleted. In a
later development, however,
not only did Justice Singh
recuse herself from the case,
she also had the notice to
Mukherjee withdrawn. She said
the matter will be listed further
as per the order of Acting Chief
Justice Gita Mittal on April 9.
Salman gets
bail, prosecution
offers no hurdle
Delhi HC backtracks on notice to former president
Alert at airports
against Kochhar,
Venugopal Dhoot
The apex court put on hold the
suo motu contempt proceed-
ings by the Kerala High Court
against former vigilance director
of the state, Jacob Thomas and
even issued a notice to it. The
Court took the step after Thomas
had allegedly made corruption
allegations against two judges in a
complaint to the CVC. He had
blamed the judges for passing
adverse orders in corruption
cases probed by him. In his plea
against the order, Thomas said
that his comments were not tar-
geted at the judges but only
against the system per se.
SC stays contempt
proceedings

Why
Blame the
Judiciary?
AmidwidespreadagitationagainsttheSupremeCourt’s
decisiontoallegedlydilutetheSC/ST(Preventionof
Atrocities)Actandadeafeningpoliticalbacklash,theModi
governmenthasbeenforcedtoseekareviewoftheverdict
By Puneet Nicholas Yadav
Lead/ Dalit Protests
N April 4, a minor Dalit
girl stormed into the office
of the superintendent of
police of Satna district in
Madhya Pradesh. The girl
was carrying a six-month-
old foetus in a plastic bag. The girl
claimed that seven months earlier, she
had been abducted and raped repeated-
ly—over a span of two months—by one
Neeraj Pandey and two of his accom-
plices and become pregnant.
After being let off by her captors, the
girl had reportedly made unsuccessful
attempts to file a police complaint of
abduction and rape against Pandey
under various sections of the Scheduled
Castes and Scheduled Tribes (Preven-
tion of Atrocities) Act and the Indian
Penal Code. His family had then prom-
ised to get her married to him if she
agreed not to file a case against him.
Then, on April 3, as the girl was going
O
12 April 16, 2018

The SC verdict had further said:
“The underprivileged need to be pro-
tected against any atrocities to give
effect to the Constitutional ideals… At
the same time, the said Act cannot be
converted into a charter for exploitation
or oppression by any unscrupulous per-
son or by police for extraneous reasons
against other citizens…We are of the
view that cases under the Atrocities Act
also fall in exceptional category where
preliminary inquiry must be held. Such
inquiry must be time-bound and should
not exceed seven days. Even if prelimi-
nary inquiry is held and case is regis-
tered, arrest is not a must.”
The Supreme Court’s verdict, against
which the centre reluctantly filed a
review petition on April 2 following
widespread violence and a deafening
political backlash, if not overturned, has
the potential to adversely affect the
investigation and subsequent judicial
to see a doctor along with her mother,
Pandey and his accomplices allegedly
abducted her again and took her to the
residence of a local doctor—Sapna
Pandey—where she was forced to abort
her six-month-old foetus and given
death threats. The girl alleged that even
after this horrific ordeal, local police
officers refused to register her complaint
against Pandey and his accomplices,
accusing her instead of having consen-
sual sex with her assaulter and then
blackmailing him. She was thus forced
to approach the Satna SP—Rajesh
Hingankar—carrying her aborted foetus
with her.
Till a day after her complaint, no
arrest had been made, though
Hingankar had referred her complaint
to BD Pandey, superintendent of police
(Satna city), for appropriate action. A
case was finally filed under relevant sec-
tions of the IPC and the SC/ST Act.
The purpose of relating this sordid
incident is that it comes nearly a fort-
night after the Supreme Court, in a
widely criticised and controversial ver-
dict, diluted the SC/ST Act. The Court
had quashed the stringent social justice
legislation’s provisions mandating
immediate arrest of persons accused
of offences named in the Act and deny-
ing anticipatory bail to them in
these crimes.
T
he Supreme Court bench of
Justices AK Goel and UU Lalit
had, in their March 20 verdict in
the Subhash Kashinath Mahajan v/s the
State of Maharashtra case, set an outer
limit of seven days for a “preliminary
inquiry” to be held into a complaint filed
under the provisions of the SC/ST Act
against a non-Dalit or tribal to deter-
mine whether a case could be registered
against the accused.
"Unfortunately,forabetterpartof
theproceedings,thecentremadeno
attempttodefendtheprovisionsof
theAtrocitiesAct.Itisonlyafterthe
courtdilutedtheActthatthe
AttorneyGeneralwasrushedintofile
thereviewpetition.Thegovernment
didn’tgaugehowseriousthe
situationcouldget,”
—DrUditRaj,BJPMP
“Reportsshowthatnotmorethan
10percentofthetotalcasesfiled
undertheAtrocitiesActarefake.
Peoplearefalselyimplicatedincases
registeredundertheIPCoron
chargesofdomesticviolenceand
rapetoo.WouldtheSCdilutetheIPC,
domesticviolenceoranti-terrorism
lawsalso?”
—PLPunia,ex-NCSCchief
IN PURSUIT OF JUSTICE
Dalit protests on Delhi-
Agra highway
UNI

The SC verdict has been widely criti-
cised as one that dilutes the SC/ST
Act. What is your opinion?
The case before the Supreme Court
was an appeal against a Bombay High
Court verdict. The Court was supposed
to adjudicate on whether charges
made out under the Atrocities Act
against Dr Subhash Kashinath
Mahajan, the Director of
Technical Education,
Maharashtra, following a
complaint filed by
Bhaskar Karbhari
Gaidwad, a Scheduled
Caste employee of the
department, should be
quashed or not.
However, the Court,
without such a prayer being made,
decided to review the provisions of the
Atrocities Act. The result is a serious
miscarriage of justice and blatant judi-
cial excess.
The court appears to have proceed-
ed on the ground that there was
rampant abuse of the Atrocities Act
and that many complaints filed
under it were aimed at blackmailing
or harassing non-SC/ST public
authorities or rivals.
The preamble of the Act is centred on
a key word—prevention (of atrocities
against SCs and STs). The provi-
sions—denial of anticipatory bail,
immediate arrest—which have now
been diluted—were meant to be tools
for this prevention. Without these provi-
sions, the Act is redundant. The
Atrocities Act was a well-drafted piece
of legislation with enough safeguards
within it to prevent its abuse. Now, the
investigation process laid out under the
Act has been diluted and that is a
major cause of concern because if a
case is derailed at the investigation
stages, then there is no hope of secur-
ing prosecution of the offenders.
The Court has quoted the National
the conviction rate for crimes against
SCs had fallen to an appalling 16 per-
cent in 2016. For STs, the scenario was
worse with the conviction rate falling
from 26 percent in 2010 to just around
8 percent in 2016.
As many as 40,801 crimes against
SCs were registered across the country
in 2016, up from 38,670 the previous
year. The NCRB data also shows a mas-
sive spike in the pendency of cases and a
decline in the number of those where
the trial was completed. In 2010, the
number of pending cases was 31,931
while it increased to 41,191 in 2016.
According to a reply tabled by Union
Minister of State for Home Affairs
Hansraj Ahir in Parliament, a total of
38,564 cases were registered for
alleged crimes against Dalits in 2016
but chargesheets were filed in only
73.8 percent of these cases.
Many Dalit and tribal rights
activists believe that the Supreme
Court, while delivering its verdict,
proceeded on the presumption that a
majority of the cases filed under this
law are bogus and motivated by the
spirit of blackmail and so the legisla-
tion was blatantly misused to harass
non-SCs/STs.
Consider this observation of
Justices Goel and Lalit in their ver-
dict: “There can be no dispute with
the proposition that mere unilateral
Thereisnodenyingthatalargepartof
theblameforthedilutionofsocial
justicelegislationbytheapexcourtrests
withModi’sgovernment,whichmany
believe,failedto defendthelaw.
14 April 16, 2018
“SCcan’tremainamutespectator
toatrocitiesonDalits”
Former Lok Sabha MP Prakash Ambedkar, grandson of Dr BR Ambedkar,
who has been in the vanguard of Dalit agitations since the caste clashes in
Pune districts Bhima-Koregaon on January 1 this year, spoke to India Legal’s
Puneet Nicholas Yadav about the apex court’s verdict in the Subhash
Mahajan v/s the State of Maharashtra and Anr case. Excerpts:
proceedings in cases like the one cited of
the raped Dalit girl. The judgment takes
away the protective and preventive
mechanism that the Act provided to
multitudes of Dalits and tribals against
oppression by members of higher castes
and the apathy shown towards them by
public authorities when they dared to
speak up.
A
look at the data collated by the
National Crime Records Bureau
(NCRB) over successive years is
enough to reveal how vulnerable Dalits
and tribals remain and how their quest
for justice is frustratingly unending. The
latest NCRB “Crime in India” report for
the year 2016 shows that there had been
a sharp decline in conviction in cases
registered under the SC/ST Act. From
the already abysmal 38 percent in 2010,

allegation by any individual belonging to
any caste, when such allegation is clearly
motivated and false, cannot be treated
as enough to deprive a person of his lib-
erty without an independent scrutiny.
Thus, exclusion of provision for antici-
patory bail cannot possibly, by any rea-
sonable interpretation, be treated as
applicable when no case is made out or
allegations are patently false or motivat-
ed. If this interpretation is not taken, it
may be difficult for public servants to
discharge their bona fide functions and,
in given cases, they can be blackmailed
with the threat of a false case being reg-
istered under the Atrocities Act, without
any protection of law… even a non pub-
lic servant can be blackmailed to surren-
der his civil rights.”
Congress leader and former Chair-
person of the National Commission for
Crime Records Bureau (NCRB) 2015
report in its verdict. It says that clo-
sure reports were submitted in 15-16
percent of the cases filed under the
Atrocities Act and that in 75 percent of
the cases, there had either been an
acquittal or withdrawal. Does this not
support the view that the Atrocities Act
is misused rampantly?
This interpretation is flawed. The Court
has mentioned this data in a single fleet-
ing sentence. The judges didn’t seem
bothered to find out why these closure
reports were filed or why such a large
percentage of cases had ended in
acquittals or were withdrawn. Stringent
provisions of the Atrocities Act were
meant to enable Dalits and tribals to get
justice—something they have been
denied for centuries in our country due
to caste hierarchy. However, members of
these communities face all kinds of
intimidation tactics even after they file
cases invoking this Act. This is why
denial of anticipatory bail and immediate
arrest were extremely important provi-
sions so that the accused don’t pres-
surise the complainant to withdraw the
case or influence investigators to bury
evidence and secure acquittal.
The centre didn’t seem keen on filing
a review petition before the SC. It
sought a review only after a delega-
tion of Dalit MPs from the BJP and
Union ministers like Ram Vilas Paswan
and Ramdas Athawale urged Prime
Minister Narendra Modi. Do you think
the government is serious about
ensuring that the Atrocities Act isn’t
diluted?
The role of the centre as well as the BJP-
led Maharashtra government, which
were both parties in the case before the
SC, has been mischievous. During argu-
ments in the apex court, neither the cen-
tre nor the state government showed any
seriousness in defending the Atrocities
Act. This, I believe, is because the BJP
and its government are essentially
Brahmanical in their ideology and social
outlook. They feed on the divisions in
society to stay in power. Despite the
harsh criticism of the verdict, the wide-
spread protests by Dalits, activists and
even BJP MPs, the centre seemed too
meek when it moved the review petition,
while the Maharashtra government
wasn’t even keen on being a party in
seeking the review. For the BJP, it makes
political sense to keep the Dalits and
tribals oppressed so that they can
polarise the electorate and continue to
enjoy power. The narrative built by their
social media managers in the aftermath
of the verdict has been about ending
reservations, though the judgment has
absolutely nothing to do with quotas for
SCs and STs.
It appears, for now, that the apex court
isn’t keen on reviewing its verdict.
The apex court bench (of Justices AK
Goel and UU Lalit) seems to have
forgotten that this is a sovereign nation
where the will of the people is
supreme.The Supreme Court is not and
cannot act like a Sultanate. If the people
are agitated because of a verdict given
by it and there is unease among millions
of people about their safety and security,
the highest court of the land cannot
remain a mute spectator; it is bound by
law to re-visit the verdict. I do not wish to
impute any motives, but perhaps the
Supreme Court would have shown
greater sensitivity to this issue if its
benches had judges that belonged to
the Dalit or tribal communities. Perhaps
the composition of the current Supreme
Court benches is the reason why the ver-
dict had a prolonged discussion on the
dignity of the accused (non-SC/ST per-
son), while keeping silent about the dig-
nity of the Dalit or tribal victim.
Scheduled Castes (NCSC), PL Punia,
believes that by presuming that a major-
ity of the cases filed under the Atrocities
Act are bogus, the apex court had set a
“dangerous and unfair precedent”. He
told India Legal: “Various reports by the
government and the NCRB have proved
that not more than 10 percent of the
total cases filed under the Atrocities Act
are found to be fake. However, the apex
court seems to have assumed—and the
government let it assume—a contrarian
view. People are falsely implicated in
cases or murder or dacoity that are reg-
istered under the IPC or on charges of
domestic violence and rape or even in
cases linked with terrorism. Would the
Supreme Court now dilute stringent
provisions in the IPC, domestic violence
Act or various anti-terrorism laws?”
There is no denying that a large part
of the blame for the dilution of social
justice legislation by the apex court rests
with Prime Minister Narendra Modi’s
government which, many believe, failed
to adequately defend the law’s provi-
sions. Coming as it does at a time when
the government is facing an uphill task
of winning back the electorally signifi-
cant Dalits and tribals ahead of assem-
bly elections due later this year and
leading up to the general election of
April-May 2019, the verdict’s political
fallout is massive.
The successful albeit violent and
Asmanyas40,801crimesagainst
SCswereregisteredacrossthecountryin
2016,upfrom38,670thepreviousyear.
TheNCRBdatashowsamassivespikein
thependencyofcases.

disruptive, Bharat bandh call given by
Dalit organisations on April 2—which
coincided with the centre moving a hur-
riedly drafted review petition in the
Supreme Court, only to be deferred for a
full hearing later this month—estab-
lished unequivocally that the SCs and
STs largely blame the Modi government
for the dilution of the Atrocities Act.
The centre reportedly decided to file
the review petition after the over three
dozen Scheduled Caste MPs of the BJP
along with the party’s allies like Union
ministers Ram Vilas Paswan and
Ramdas Athawale urged the prime min-
ister to do so. While Modi has main-
tained his characteristic silence over the
backlash, he has left his ministers—
Home Minister Rajnath Singh and Law
Minister Ravi Shankar Prasad—to
assure the affected communities, in
vain, that the government is sensitive
towards them and won’t allow the
Atrocities Act to be watered down.
Several Dalit MPs of the BJP whom
India Legal spoke to conceded that the
government could have been more
proactive. “When the Court asked the
centre to make its submissions in the
case, the law ministry should have
ensured that it sent Attorney General
KK Venugopal to plead. Unfortunately,
for a better part of the proceedings, the
centre was represented by an additional
solicitor general who made no attempt
to defend the provisions of the Atrocities
Act. It is only after the Court diluted the
Act and the Opposition-backed Bharat
bandh put the government on notice
that the attorney general was rushed in
to file the review petition. This shows
that the government didn’t gauge how
serious the situation could get,” Dr Udit
Raj, Dalit activist-turned BJP MP said.
He added that the situation “could have
been salvaged had the BJP leadership
been receptive to issues raised by its
MPs from the Dalit and tribal commu-
nities but unfortunately, they have no
voice in the party or the government”.
T
he way ahead for the centre with
regard to the review petition
looks daunting. The apex judici-
ary is currently saddled with infighting
among its seniormost judges. Chief
Justice Dipak Misra is staring at the
possibility of a united Opposition mov-
ing an impeachment motion against
him, while a section of his brother
judges accuse him of doing the Modi
government’s bidding in judicial pro-
nouncements and appointments. It
remains to be seen whether the review
petition will, in this disturbing scenario,
become another flashpoint between the
Executive and the Judiciary. Until then,
the Dalit and tribal communities have
no option but to wait and watch
whether a law meant to curb atrocities
against them turns into one which abets
their oppression. Will they blame the
Judiciary or the Executive for this
atrocity by law? The latter looks
more plausible.
Thecentrereportedlyfiledthereview
petitionaftertheoverthreedozen
ScheduledCasteMPsoftheBJPalong
withtheparty’sallieslikeUnionminister
RamVilasPaswanurgedthePMtodoso.
PAYING LIP SERVICE?
Prime Minister Narendra Modi unveiling a
plaque at the Dr Ambedkar International
Centre in New Delhi
16 April 16, 2018
“...thereareinstancesofabuseof
theActbyvestedinterestsagainst
politicalopponentsinPanchayat,
Municipalorotherelections,toset-
tleprivatecivildisputesarisingout
ofproperty,monetarydisputes....”
—ExcerptfromJusticesAKGoeland
UULalit’sMarch20verdict
UNI

Supreme Court/ Delhi’s Sealing Drive
HE Supreme Court has
come down heavily on the
centre for failing to solve
the issue of unauthorised
constructions which have
made Delhi an “unlivable
place”. On April 4, 2018, a bench of Jus-
tices Madan B Lokur and Deepak Gupta
said: “The people of Delhi are suffering;
our children are suffering. Our lungs are
already damaged. The lungs of our chil-
dren will also be damaged. Why?
Because the Union of India, the Delhi
government, Delhi Development Autho-
rity and municipal corporations of Delhi
say you can do whatever you want, but
we will not do anything.”
The Supreme Court made the obser-
vations while hearing arguments on the
Delhi Laws (Special Provisions) Act,
2006, that protects unauthorised
properties from being sealed. The bench
said: “It is a 30-year-old problem. The
MCD (Municipal Corporation of Delhi)
was granting licences left, right and
centre without having any concern for
anybody...There is gross misuse of com-
mercial establishments in residential
areas. The people of Delhi are not
relevant to you.”
The Court also took the centre to
task for a “complete breakdown of law
and order” in Delhi as traders staged
protests following the sealing of their
shops and businesses. The sealing drive
is against those who are using residen-
tial areas for commercial purposes and
have not paid the conversion charge.
While the Court blames the centre,
the latter is pleading for more time to
come up with an alternative plan for
resettlement of traders who have lost
their homes and shops. Mukul Rohatgi,
appearing for the centre, asked the
Court on April 4 to give time to the
authorities for rehabilitation.
Experts believe the situation cannot
be solved so quickly as a nexus exists
between politicians, bureaucrats, traders
and MCD and DDA officials. Supreme
Court advocate PS Sharda told APN:
Trapped in the Muddle
WhilethecentreandtheCourtsparoverthespreadofillegalconstructions,thousandsof
tradersandworkershavebecomejoblessandhomeless.Whatdoexpertssay?
By Usha Rani Das
T
IS IT JUSTIFIED?
The sealing drive in South
Extension, New Delhi

Supreme Court/ Delhi’s Sealing Drive
18 April 16, 2018
“This is not a recent drive. It went to the
Supreme Court in 1990 for the first
time. The Court said that the Delhi gov-
ernment is unwilling to take any action.
The Court just asked them to imple-
ment their own laws. The DDA has its
responsibility as well as the authority.
Unfortunately, Delhi has become a gas
chamber today. If there is a disaster,
thousands more will be sacrificed be-
cause of the immaturity of some. The
Court does not have vested interests in
it… It is because of some fringe elements
in the DDA and similar organisations
that the situation has become worse.”
The sealing drive started initially in
2005 when the Delhi High Court sent a
notice to the MCD to remove commer-
cial construction in residential areas.
This was followed by violent protests in
the city that led to the deaths of four
people. In March 2006, the Supreme
Court ordered sealing of all unautho-
rised constructions in Delhi and
appointed a monitoring committee to
conduct the sealing drive. The then
Congress-led government at the centre
promulgated a law (Delhi Laws [Special
Provisions] Act) to stop the sealing
drive and made amendments to the
Master Plan 2021 that gave respite to
the traders as commercial and residen-
tial establishments could now function
simultaneously in a restricted manner.
On December 15, 2017, the bench
revived the powers of the monitoring
committee after the reports submitted
by it showed widespread unauthorised
construction in Delhi. When asked the
reasons for the long gap between the
two sealing drives, ADN Rao, one of the
lawyers who is amicus curiae in the case,
told India Legal: “The legislation has
been interfering in between.”
T
he centre had framed the Delhi
Laws (Special Provisions) Act in
2006 to give protective cover for
one year against sealing. But after 2007,
it passed successive Acts and ordinances
to extend the deadline and the last such
law was passed by Parliament in
December 2017 to protect illegal con-
structions till 2020. It said the govern-
ment had passed the law in 2006, say-
ing it needed to collect data on unautho-
rised constructions in Delhi but even
after 12 years the centre had failed to
carry out any survey.
KJ Rao, a member of the monitoring
committee, told India Legal: “The prob-
lems are innumerable. Illegal construc-
tions, misuse of properties, unautho-
rised constructions. It has diluted the
quality of life in the city. The hearing is
on April 9. Let’s see what happens.”
Former Chief Justice of Meghalaya
High Court Uma Nath Singh told APN:
“The Court has been considerate
enough. It has given enough time to all
to solve the situation…Hence they have
revived the powers of the committee. As
far as the human angle is concerned,
why don’t the trader unions and associa-
tions stop traders from carrying out
such illegal activities?”
Additional Solicitor General ANS
Nadkarni, appearing for the centre, told
the bench that the law was passed to
grant relief to the poor living in unau-
thorised colonies and was not meant to
override the SC’s judgment to initiate
sealing. “The law was enacted on May
2006 to provide temporary relief to the
people of Delhi against action for viola-
tion of the provisions of the Master Plan
and building bye-laws for a period of
one year to avoid hardship and loss to a
large number of people. This was to
enable the government to take a bal-
anced and well-considered view on poli-
cies involving such unauthorised devel-
opment so that the development of
Delhi takes place in a sustainable and
planned manner. It would also provide
temporary relief to persons residing or
carrying out commercial activities or
otherwise dependent upon such unau-
thorised development,” he said.
“A substantial portion of the city pop-
ulation lives in slums/unauthorised
colonies, therefore the government,
being duty-bound to protect the poor,
had to intervene on humanitarian
grounds even as such inhabitants are
encroaching on public or private land. It
may be submitted that it was an emer-
gent circumstance whereby people can-
not be left to their fate as the unautho-
rised development that has happened
was due to the failure of agencies to
OnApril4,2018,anSC
benchofJusticesMadan
BLokurandDeepakGupta
said:“TheMCDwas
grantinglicences...with-
outhavinganyconcernfor
anybody...Thereisgross
misuseofcommercial
establishmentsin
residentialareas....”
BLEAK FUTURE Thousands of traders and
workers are now jobless due to the sealing

keep up with the growing demand. It is
therefore imperative that the govern-
ment frames policies for dealing with
this unauthorised development for
inclusive development of all sections in
Delhi,” the centre said in its affidavit.
T
housands of shops in Khan Mar-
ket, Sadar Bazar, Greater Kailash,
Hauz Khas, Amar Colony,
Gandhi Nagar, and so on, have been
closed. Praveen Khandelwal, secretary of
the Confederation of All India Traders,
told India Legal: “The process of draft-
ing the Master Plan for Delhi 2021-41
has started. The sealing should be halt-
ed till a resettlement plan is given to the
traders. The MCD should only carry out
sealing through the due process of law
as has been specified in the MCD Act.
The MCD Act states that before carrying
out any raid, the municipal commission-
er will file a complaint with the munici-
pal magistrate, a notice would then be
sent to those accused of any violation,
they will respond to it and, following a
hearing, the matter would first go to the
appellate tribunal and then the lieu-
tenant-governor. If the appeal is rejec-
ted, then sealing would be carried out.
The sealing is illegal otherwise.” He also
said that about six lakh traders of Delhi
could be impacted by the sealing drive.
Rakesh Yadav, president of the Sadar
Bazar Traders Association, told APN:
“Young blood does not want to come
and work here. There is no proper infra-
structure, no safety, and hence, cus-
tomers’ count has decreased over the
years. The stay order was in 2006 but
till now, no government official or any
agency has come and discussed anything
with us. There has been no
development in the area yet.” Pradeep
Gupta, president of the Gandhi Nagar
Traders Association, accused the DDA
of being corrupt.
Gaurav Chauhan, one of the lawyers
representing the traders, told India
Legal that previously one could go to the
Appellate Tribunal MCD to file a case
but under the current SC orders, once
the shops are sealed, the aggrieved party
has to approach the monitoring com-
mittee whereby he has to pay a fee of `1
lakh. “How can a simple trader pay such
a hefty amount?” he said.
An official of the monitoring com-
mittee, however, told India Legal: “Ille-
gal constructions have become a menace
to the city. It is degrading the quality of
life. But what can we do? When our offi-
cials go on the spot, the traders protest
and do not let us carry out the orders.
What can even the police do when three
or four of them are gheraoed by hun-
dreds of people?”
Former IAS officer Capt Dwivedi said
the public had been involved enough in
the decision-making process. He told
APN: “When the Master Plan was made,
it was open to public discussions for
quite a while. No one came forward
then. The public was made well aware of
the plan. It is true that these markets
exist from the pre-Independence period.
But the situation was different then.
Shops which were 10x10 ft have in-
creased to 10x22 ft. Eighty percent of
the pavements has been encroached by
these constructions.”
Senior advocate Vikas Singh said
that municipal authorities don’t take
any action when these illegal construc-
tions start. He said: “And, when these
people settle down, it becomes a human
problem. Till you give an alternative
space, where will these families go? The
encroachments have caused water, elec-
tricity, sewer, traffic and various other
problems to the common man.”
While the situation has boiled down
to a fight between the centre and the
apex court, it is the common man who is
left in the lurch.
“Illegalconstructions,
misuseofpropertiesand
unauthorisedconstruc-
tionshavedilutedthe
qualityoflifeinDelhi.”
—KJRao,amemberof
themonitoringcommit-
teeformedbytheSC
“Thesealingshouldbe
haltedinthecitytilla
resettlementplanis
giventothetraders.It
isillegal.”
—PraveenKhandelwal,
secretary,Confede-
rationofAllIndiaTraders
“Theencroachments
havecausedwater,
electricity,sewer,
trafficandvariousother
problemstothecom-
monman.”
—VikasSingh,
senioradvocate
“Itisbecauseofsome
fringeelementsinthe
DDAandsimilar
organisationsthat
thesituationhas
becomeworse.”
—PSSharda,advocate,
SupremeCourt
“Thecourthasbeen
considerateenough.It
hasgivenenoughtime
toalltosolvethe
situation…”
—UmaNathSingh,for-
merChiefJusticeofthe
MeghalayaHighCourt

My Space Justice Sreedhar Rao/ Ban on Lawmakers
20 April 16, 2018
HE petition filed by
Ashwini Kumar Upadh-
yay before the Supreme
Court of India seeking a
ban on lawmakers prac-
tising in courts has
stirred a hornets’ nest and opened up a
serious debate within legal circles.
Section 49(1)(c) of the Advocates’ Act,
1961, empowers the Bar Council of India
(BCI) to enact rules for ensuring the
standards of professional conduct and
etiquette to be observed by advocates.
The BCI Rules 47 to 51 lay down the dos
and don’ts for maintaining the integrity
and dignity of the profession.
An advocate is prohibited from engag-
ing in any business but he may be a
sleeping partner in a firm which, in the
opinion of the BCI, is not derogatory to
the dignity and ethics of the profession.
An advocate may be a director or a
chairman of the board of directors of a
company with or without a sitting fee,
but shall not be a managing director or
a secretary of a company.
An advocate shall not be a full-time
salaried employee of the government
or under any person, including
legal entities.
The Supreme Court in one case had
held that law officers can-
not appear before the
courts on behalf of their
employers as they were
full-time employees.
An advocate can review
parliamentary bills for
remuneration, do press
vetting for newspapers,
but should not be
employed full-time in
broadcasting, journalism,
teaching, and the like.
These restrictions were enacted at a
time when the complexity of the issue in
question was not contemplated.
The submission of the BCI before the
Supreme Court was that it did not have
any objection if advocates elected as
members of parliament or state legisla-
tures appeared in courts to practise law.
However, it was submitted that if an
advocate was a party to an impeachment
motion, he shall not appear before that
particular presiding judge. This submis-
sion of the BCI appears to be puerile,
because in no case would an advocate
moving an impeachment motion
appear before such a judge and even
otherwise, on the ground of personal
bias, the judge would recuse himself.
Hence, there appears to be no virtue or
merit in the submission before the
Supreme Court.
On the question of whether an advo-
cate who is an elected member of parlia-
ment or a state legislature has a right to
practise in courts, the submission of the
BCI appears to be a hasty decision and
not deliberated in depth, considering
the conflict of duties of an elected office
vis-a-vis the duties of a lawyer.
Lawmakers
and
Lawyers
ApetitionfiledbeforetheSupremeCourtseekinga
banonMPsandMLAspractisingincourtshas
triggeredseriousdebateinlegalcircles
T
ThesubmissionoftheBarCouncil
ofIndiathatanadvocatewhoisaparty
toanimpeachmentmotionshallnot
appearbeforethatparticularpresiding
judgeappearspuerile.

for getting elected to the Rajya
Sabha. Section 3 of the
Representation of People Act,
1951, substituted by Act 40 of
2003 w.e.f. 28.8.2003, declares
that “a person shall not be quali-
fied to be chosen as a representa-
tive of any state or union territo-
ry to the Council of States unless
he is an elector to the Parliamen-
tary Constituency in that State
or territory of India”. By Act 40
of 2003, an amendment was
effected by substitution w.e.f.
20/8/2003 which deleted the
requirement of being an elector
to the parliamentary constituen-
cy in that state or territory
and prescribed that he is an elec-
tor for the parliamentary
constituency in India.
In the US, to be a member of
the House of Representatives,
one need not be a resident of the
state which he represents. The
residential/domicile qualification
of the state becomes imperative
since he/she is expected to repre-
sent the interest of the state con-
cerned. The object of a bicameral
parliament is to effectively guard
the interests of states which do
not have equal representation in
the Lok Sabha.
When the unamended law
was in vogue, it was difficult for political
parties to bring their favourites to the
Rajya Sabha, who are not electors of
that state or territory. Many of the mem-
bers nominated faced the risk of crimi-
nal prosecution for filing false declara-
tions about residence or domicile. All
the political parties in order to over-
come the impediment employed politi-
cal chicanery and dumped the law. It is
time to weed out the arbitrary practice
of law-making and the decisions of bar
councils to maintain healthy practices
of democracy.
The legal profession demands abso-
lute integrity and total devotion. Like-
wise, elected representatives in parlia-
ment and state assemblies also owe a
duty to their constituencies which elect-
ed them. The MPs and MLAs should
not merely do the job of law-making,
but also bring to the notice of the
House the problems of the people so
that a debate is initiated to highlight
the failure of the bureaucracy and politi-
cal governance.
This aspect of their duty calls for reg-
ular visits to their constituencies. Be it
a member of the Lok Sabha or Rajya
Sabha or assembly or council, there is
no difference in the duties and responsi-
bilities towards the constituency they
represent. The role of elected represen-
tatives needs total dedication towards
the people of their constituency and not
just attending Parliament or the assem-
bly while in session.
T
he BCI seems to have glossed
over the onerous and sacred
duties and responsibilities of
elected representatives towards parlia-
ment and assemblies which conflicts
with the duties and responsibilities of an
advocate. It should have invited a wide
debate in legal circles before a final deci-
sion was taken in the matter for submis-
sion before the Supreme Court.
Article 84(c) empowers Parliament
to make a law regarding qualifications
UNPOPULAR STAND
(Facing page) The Bar Council of India; (clockwise
from above) senior lawyers Abhishek Manu Singhvi,
P Chidambaram, Salman Khurshid and Kapil Sibal
are likely to be affected by the Bar Council’s
decision not to allow lawyer-politicians to appear
before a judge against whom they have backed an
impeachment motion

Acts & Bills/ Copyright Act
22 April 16, 2018
MITABH BACHCHAN
recently blogged about
his rights over the works
of his famous father and
poet, Harivansh Rai
Bachchan. The superstar
expressed surprise and anger over the
fact that he had exclusive rights to his
father’s work only for 60 years after his
death and that thereafter, they would be
in the public domain and could be used
by anyone without permission.
Harivansh Rai, a litterateur, a renowned
poet and Hindi writer, died in January
2003. His most famous work was
Madhushaala (1935). A recipient of the
Sahitya Akademi award and the Padma
Bhushan, Harivansh Rai’s contributions
also include Hindi translations of
Shakespeare’s works.
In his blog, Amitabh emphasised
that he had inherited his father’s work
and that he would never allow its “dilu-
tion”. “So who designed 60 years?.... why
not perpetuity?” the actor wrote. “…So
what gets left ... becomes for the entire
Universe to tread, scratch, mutilate, use
Why is
Amitabh Angry?
BigBmaywanthisfather’sworkstoremaininhispossession
foreverbutaccordingtotheCopyrightAct,60yearsafterthe
deathofthepersonconcerned,theygointothepublicdomain
By Diljeet Titus & Rai S Mittal
A
MIFFED WITH THE LAW
File photo of Amitabh Bachchan with his late
father, Harivansh Rai Bachchan, whose most
famous work was Madhushaala
cinestaan.com

in commercial consideration on their
own creative discretion .. ??? RUB-
BISH..!”
Another case where similar concerns
were raised was Visva Bharati University
no longer enjoying the copyright to the
works of Rabindranath Tagore.
Bollywood movies like Mela, Shaheed,
CID, Babul and other Hindi classics of
the 1930s and 40s are beyond the copy-
right time-frame and are in the public
dom-ain. The Indian film industry has
been demanding protection for a longer
term.
BRITISH STATUTE OF ANNE
Discussions over copyright for perpetu-
ity versus copyright for a limited term
are as old as when the British Statute of
Anne of 1710 was enacted. This was per-
haps the first statute to provide for
copyright regulations. Upon coming into
force, the law granted 14 years of protec-
tion, which could be renewed for anoth-
er 14 years if the author was still alive.
As the copyrights so issued by the
Statute of Anne started to expire, cer-
tain booksellers started raising ques-
tions about copyright terms and corre-
sponding rights and initiated lawsuits in
order to continue to hold the rights of
the books they had been printing.
Considering the problems faced by
booksellers in various countries and
upon negotiations about proposals for a
multilateral convention governing copy-
right law, the Berne Convention was
introduced in 1886. It was meant to pro-
vide mutual recognition of copyright
between nation states and to promote
development of international standards
for copyright protection. The Berne
Convention was revised in 1908 to pro-
vide copyright protection during the life
of the author and 50 years after his
death.
The first related legislation in India
was governed by the Copyright Act,
1914, which was mainly based on the
UK Copyright Act, 1911, which was com-
pliant with the Berne Convention of
1886. India became a member of the
Berne Convention in 1928. By an
amendment made to the Indian law in
1991, “50 years” of copyright protection
after the death of the author was
increased to 60 years.
The concern arises because copyright
is not protected in perpetuity. It is pro-
tected worldwide, including in India,
only for a limited period. In the case of
original literary, dramatic, musical and
artistic works, the duration of copyright
is the lifetime of the author or artist and
60 years from the year following that
person’s death. Films, sound recordings,
photographs, posthumous publications,
anonymous and pseudonymous publica-
tions, works of the government and
works of international organisations are
protected for 60 years, counted from the
year following the date of publication.
Like copyright, patents for any
invention granted under Indian law are
available for a limited period of 20
years. Once the patent for a particular
invention expires, it enters the public
domain and can be freely used.
Similarly, the maximum validity of reg-
istration under the (Indian) Designs
Act, 2000, is 15 years.
TANGIBLE PROPERTIES
The most basic argument used by sup-
porters of perpetual copyright is that
intellectual property rights in copyright
are analogous to other property rights or
rights in tangible properties. Hence, it is
argued that owners of copyright should
have the same perpetual right to retain
and to bequeath this property to their
descendants that owners of ordinary
goods possess. As a scholar said: “It
makes no sense to imagine somebody
Ontheexpiryofcopyright,society
asawholeisgrantedthesameright
toappreciateandexploittheproperty
thatoncewasundertheexclusive
controlofasingleperson/family.
IN PUBLIC DOMAIN
Visva Bharati University (below) no longer
enjoys the copyright to the works of Nobel
laureate Rabindranath Tagore

Acts & Bills/ Copyright Act
24 April 16, 2018
after a certain time coming in and
taking your rug or your chair and saying
‘Sorry, your ownership has expired’.”
The other strong contention in sup-
port of perpetual copyright is that copy-
right expiry transfers wealth from pri-
vate copyright holders to corporations.
It is argued that freeing a work into the
public domain is less a public benefit
than a transfer of wealth from private
individuals and their families/ descen-
dants to the stockholders of various
businesses who will continue to profit
from it.
Demands for perpetual copyright
have been widely criticised. This line of
thought distinguishes intellectual prop-
erty rights from those associated with
material goods which are scarce—land,
for example, cannot be created anew,
and only a limited number of people can
occupy and use a space at any given
time. However, copyrighted works are
not scarce. Books are created anew by
authors and can be read by millions,
depriving none from using the work.
This line of thought argues that copy-
right expiry ultimately provides a net
benefit to society.
Critics also state that copyright expiry
does not deprive a creator’s heirs of the
right to continue to appreciate and use
the works of that creator and it is not to
be compared with the situation of a gov-
ernment legally confiscating their physi-
cal possessions after a set period of time.
On the expiry of copyright, society as a
whole is granted the same right to
appreciate and exploit the property that
once was under the exclusive control of
a single person/family. Critics argue that
the wider potential for the creative
exploitation of works that were formerly
under the exclusive control of a copy-
right owner promotes learning.
SOCIETY BENEFITS
It is also the view that the existing copy-
right term provides more than sufficient
compensation for creators of intellec-
tual property. Copyright should not
become some kind of a welfare system
used to benefit distant descendants who
happen to come into possession of a
valuable copyright merely through birth.
Society too is an important heir to copy-
righted works.
Critics of perpetual
copyright say that creative
activity involves the cre-
ation of works that build
upon previous material. If
this prior material were
perpetually copyrighted,
their respective copyright
holders would have the
indefinite right to allow or
deny its use as they see fit.
Many new works could not
be produced if the inter-
ested parties were denied
permission or could not
afford the demanded fees.
Perpetual copyright would
thus create a significant
disincentive to the creation
of new literary or artistic
works which build upon
older material.
The question as to
how long a copyright
should last has troubled scholars and
policymakers for long. Copyright exists
primarily to encourage the creation of
new work and benefit from it. With an
exclusive right, a publisher can charge a
higher than reasonable price and there-
by earn profits. As the higher price is
contrary to public interests in the long
run, it is believed that copyright should
last only as long as it is necessary to
accomplish the incentive function.
While it can be expected that copy-
right owners will attempt to obtain fur-
ther extensions of the copyright term in
future, it is also obvious that they will
meet with opposition. Whether oppo-
nents of copyright extension will have
the political power to succeed in defeat-
ing such attempts remains to be seen. A
perpetual copyright, as Amitabh seeks,
is quite unlikely to see the light of day.
—The writers are advocates
in Titus & Co
NO MORE PRIVATE LEGACY
Bollywood movies like
Shaheed, CID, Babul and Mela
of the 1930s
and 40s, are already free
of copyright shackles

a review, we have been raised to the
position of 100. But I don’t think we can
be very proud to occupy this ranking. To
be attractive, we have to take many
steps. One, we have to have an inde-
pendent judiciary which we have,
speedy justice which we don’t have and
legal representation according to the
choice of the litigant. Now, the last
thing is the one which is lacking.
“There is an institution known as
Foreign Legal Consultants in all coun-
tries. For the last 15-20 years, delega-
tions have come from England, from the
Law Society, and attorneys from the
American Bar Association and pleaded
their case. Not having them is an
impediment, and it is time we realise it.
The matter came up before the Supreme
Court recently and it held
that the maximum that
would be permitted will be
for foreign lawyers to fly in
and fly out, which would
mean that they would be
entitled to appear in arbi-
trations, and then leave the
country straightaway. This
is not satisfactory if you
want to attract foreign
investors who have to have
lawyers of their choice.
Therefore, the Bar Council
HE need for arbitration
reforms, why policy
changes are required in
the Indian legal system
and an in-depth look at
how the Australian White
Industries case led to the adoption of
the present model for bilateral treaties—
these were some of the topics discussed
at a seminar on international commer-
cial law in Panaji. It was organised by
the International Law Association’s
Indian chapter on March 30 and these
discussions are likely to be valuable in
India’s journey towards becoming a
more attractive business destination and
a premier arbitration centre.
“NEEDED, FOREIGN LEGAL
CONSULTANTS”
Attorney General KK Venugopal
(below) felt that the system of foreign
legal consultants, if implemented, would
catapult India into becoming one of the
top arbitration centres like London,
Singapore and Amsterdam. This would
also be a catalyst in attracting invest-
ments. He said: “We were 130 in terms
of the ease of doing business. Following
Legal Eye/ Seminar on International Commercial Law
LegalluminariesagreethattodrawforeigninvestmentsaswellasmakeIndiaanarbitration
hotspot,marryingnationalinterestwithanunderstandingofinternationallawwasthekey
By India Legal Bureau
of India and various law firms should
realise that it is in their own interest to
have foreign lawyers come in, advise
their own clients and also Indian clients
if they want to, but only in regard to
their domestic law.
“As far as arbitration is concerned,
international arbitrations require a
totally different environment and ap-
proach. Why is it that India has not
been a successful centre for arbitration?
Take Singapore, for instance. The Sing-
apore International Arbitration Centre
is now a very, very busy centre of arbi-
tration. Two years ago, they had
only 70-80 cases. Today, they have
364 new cases, many of which are
Indian ones where the Indian govern-
ment is involved.”
“BALANCE UNIVERSAL NORMS
WITH NATIONAL INTEREST”
Justice AK Sikri (facing page, left) of
the Supreme Court felt that each coun-
try is doing its utmost to ensure maxi-
mum progress for itself. Hence, to that
extent, India too should ensure its own
“parochial” interest. He said: “We are in
an era of globalisation. Every matter has
cross-border ramifications, including
intellectual property disputes. What
should be the law? Even arbitration law
should be uniform, so that we avoid
26 April 16, 2018
Needed, Glocal Worldview
T
Anil Shakya

mine in India but things went wrong. It
led to an International Chamber of
Commerce award delivered in London.
Its enforcement is pending and being
contested in two courts.
“On January 10, 2008, the famous
Venture Global judgment was delivered.
This case laid down the astonishing
proposition that the same award could
be a domestic award for the purposes of
setting aside under Section 34 and a
foreign award for enforcement under
Part II. This was the state of our law
when the White Industries appeal came
up before us. Six days later, Justice
Markandey Katju was part of the
bench. Immediately, he said Venture
Global seems to be incorrect and it
went to a three-judge bench. White’s
patience ran out. In January 2009,
White invoked the treaty and said sev-
eral provisions of it had been broken.
“An award is something that crys-
tallises a dispute between two parties
over an investment but it is not an
investment by itself, but White stated
that this particular award amounted to
an investment. The tribunal went on to
hold in favour of White Industries that
the award was indeed an investment.
Given this judgment which came as a
great shock to India, the model text of
bilateral treaties today is a vast
improvement over what was being fol-
lowed in the earlier two models.”
conflict of arbitration laws. UNCITRAL
(United Nations Commission on
International Trade Law) came out with
a model arbitration law and exhorted all
countries to have their arbitration laws
based on that model. India, too, passed
the Arbitration and Conciliation Act
1996. There was pressure, too, from the
World Trade Organisation that all coun-
tries laws should be of equal measure. In
2000, we repealed our earlier Trade-
mark Act. Sweeping amendments to
Copyright Act were made in order to
make it international-compliant. The
Competition Act was enacted in 2007
and gave a go-by to the archaic MRTP
Act. In 2016, we had the new Insolvency
and Bankruptcy Code.”
“MARRY RULE OF LAW WITH
GLOBAL INVESTMENT LAW”
Senior advocate Aryama Sundaram
(centre) underlined the important roles
that both the legislature and judiciary
must play in improving the business
environment. He said: “Today, there are
two very important subjects—one, rule
of law; two, international investment
law. In the absence of the three C’s—
clarity, consistency and certainty—in a
country’s rule of law, you are not going
to have international investment in the
country. We need to marry rule of law
with international investment law. Or
else, we will be left behind.
“The Kesavananda Bharati case judg-
ment enunciates the rule of law as one
of the most important aspects of the
doctrine of basic structure. It states:
‘The rule of law affirms parliament’s
supremacy while at the same time
denying it sovereignty of the constitu-
tion. Deprivation of property may also
cause serious concern in the area of for-
eign investments, especially in the con-
text of international law and interna-
tional investment agreements.
Whenever a foreign investor operates
within the territory of a host country,
he and his properties are subject to
the legislative control of the host
country along with international
treaties and agreements. Even if the
foreign investor has no fundamental
right, let him know that the rule of law
prevails in this country.’”
“WHITE INDUSTRIES CASE SAW
CURIOUS REASONING”
Supreme Court judge Rohinton
Nariman (right) debunked the White
Industries judgment and explained how
it laid the foundation of the current
model for bilateral investment treaties.
He said: “The bilateral investment
treaty, apparently, has come a long way
from the first Bilateral Investment
Treaty (BIT) that was between two
nations, Pakistan and Germany, in
1959. Our first BIT was in 1994 with
the UK. We have gone through three
distinct phases in this regard. The third
model was in 2013 and it really came
upon the heels of a very celebrated deci-
sion which is referred to as the White
Industries Australia Limited case. This
case was between White Industries and
Coal India. They were to set up a coal

crime and politics. The groups that get
away with these murders are criminal
and political groups and government
officials. Both were evident in the three
deaths mentioned above.
Nishchal and Singh were allegedly
run down by Mohammed Harsu, an ex-
village chief who pressurised journalists
in the area to write stories in favour of
him and had grudges against these two.
Sharma, on the other hand, had con-
HE chilling death of three
journalists within a fort-
night has again shifted the
focus on the profession’s
vulnerability in the coun-
try. The death of Sandeep
Sharma in Madhya Pradesh on March
26 and Navin Nishchal and Vijay Singh
in Bihar on March 25 within a span of
24 hours also drew the attention of the
international media to the dire working
conditions of the press in India.
These deaths highlight what media
watch organisations such as the
Committee for Protection of Journalists
(CPJ) have been pointing out for long—
the culture of “impunity” which led to
these deaths. The CPJ’s annual report,
last published in 2017, has constantly
ranked India high in its Global
Impunity Index. India is one of the
countries where murders go uninvesti-
gated and no one gets convicted. As per
the CPJ, no convictions have taken place
in the last decade. Not just that, India
has also never responded to UNESCO’s
requests regarding the judicial status of
journalists’ killings.
According to the CPJ, those targeted
mostly worked as rural and small-town
journalists and reported on corruption,
Spotlight/ Mediapersons’ Killings
Therecentdastardlykillingsofthreejournalistsinthelineofdutyhasonceagainshownthe
risksunderwhichthemediaworksandthelackofconcernorconcreteactionbyauthorities
By Lilly Paul
stantly reported on the illegal sand
mafia operating in Madhya Pradesh and
had also conducted a sting operation on
a sub-divisional police officer, Indra
Veer Singh Bhadouria, taking a bribe to
allow illegal sand mining in the region.
This is not the first time that journal-
ists have been killed for reporting on
illegal mafia gangs. Earlier, in June
2015, Sandeep Kothari was abducted
and brutally burnt to death by people
T
28 April 16, 2018
Murders Most Foul
SHOOTING
THE MESSENGER
(Above) Bihar
journalists demonstrating
against the killing of scribes
in Patna;
(L to R) Journalists
Sandeep Sharma, Navin
Nishchal and Vijay Singh
were gunned down in
March this year

Institutions (Prevention of Violence
and Damage or Loss to Property) Bill,
2017, claimed to be a “landmark” law
for the protection of journalists, was
cleared in the assembly. However, SM
Desh-mukh, president of the
Maharashtra Patrakaar Halla Virodhi
Samiti, thinks that it is a sop given to
journalists by the state government in
order to keep protests at bay. He says
the state government gets false credit
for being the first to formulate the law
for journalists, it has not done anything
in reality. “We struggled for 12 years to
get the Bill passed which was ultimately
done in 2017. But it has not been imple-
mented so far in the state. When we
talk to the chief minister about it, the
response is that it is with the president.
It’s been a year but the Bill has not been
formulated into law yet. This is why we
have planned to protest by burning a
copy of the Bill in all of Maharashtra,”
Deshmukh told India Legal.
He said that no party in the state
has been in favour of a law for the pro-
tection of journalists because every
linked to the illegal sand mining racket
in Madhya Pradesh. He had reported on
it for five years, which other journalists
think made him a target.
POLICE ROLE
As for the police, there has been a sig-
nificant lack of interest in taking action
against the guilty. Many a time, the
police’s role in the death of journalists is
evident. Therefore, the journalists and
their relatives are left in the lurch. For
example, Jagendra Singh, a freelance
journalist who also published his reports
on Facebook, was burnt by a group of
police officials, who raided his home. He
had written extensively about
Samajwadi minister Ram Murti Verma
and his corruption. Singh was burnt
alive in front of his family members at
his residence. Singh’s last Facebook post
on his page, “Shahjahanpur Samachar”,
was also against Verma. In his dying
declaration recorded on video, Singh
named police inspector Prakash Rai as
being present with other police person-
nel while kerosene was poured on him
and he was set ablaze. Crying in pain,
the dying scribe had asked: “Why did
they have to burn me? If the minister
and his people had something against
me, they could have hit me and beaten
me, instead of pouring kerosene over
me and burning me.”
As Steven Butler, Asia programme
coordinator of the CPJ, said at the 2018
BG Verghese Memorial Lecture:
“Journalists in India are murdered in
retaliation to their work… This seems
odd as countries with higher rates of
crime and murder like the United
States don’t have nearly as many jour-
nalists killed. There has been not a sin-
gle conviction upheld over a period of
25 years. That is a horrifying record.
Murder is the ultimate form of censor-
ship and in India, it works.”
Given the pathetic condition of jour-
nalists in India and the constant attacks
on them, there has been a longstanding
demand for formulating a law in this
regard. The journalist community
heaved a sigh of relief when the
Maharashtra Mediapersons and Media
“JournalistsinIndiaaremur-
deredinretaliationtotheir
work….Thisseemsoddas
countrieswithhigherrates
ofcrimeandmurderlikethe
UnitedStatesdon’t
havenearlyasmany
journalistskilled.”
—StevenButler,Asia
programmecoordinator,CPJ
“InMaharashtra,nosingle
partycanclaimthatits
membershavenotattacked
journalists.Thisiswhythey
thinkthatifthereisanysuch
law...thenpartyworkerswill
beintrouble.”
—SMDeshmukh,president,
MaharashtraPatrakaarHalla
VirodhiSamiti
“Wearen’taskingforsecurity
foralljournalists.Weareask-
ingforthebareminimum,
thatwhentheyareonduty,at
leastthentheyshouldnotbe
harassedsothattheycan
workfreely.”
—RasBihari,president,
NationalJournalistsUnion
ofIndia
“Doessocietythinkthatit
cansurviveifjournalistsare
beatenupandfiredfrom
theirjobs?Peoplewillhave
tocomeforwardthenext
timeanysuchincidenthap-
pens.Societywillhaveto
comeoutonthestreetsto
savedemocracy.”
—RavishKumar,TVjournalist

30 April 16, 2018
University students and teachers from
the university campus to Parliament
Street. The march was against privatisa-
tion of education and they were also
demanding suspension of a professor,
Atul Johri, who was accused of sexual
harassment. Police misbehaved with
these journalists and their cameras were
snatched away and a female journalist
was allegedly molested too.
Speaking of the recent attacks on
journalists, Ras Bihari, president,
National Journalists Union of India,
told India Legal that they have been
demanding a law for the protection of
journalists for long. “We aren’t asking
for security for all the journalists. We
are asking for the bare minimum, that
when they are on duty at least they
should not be harassed so that they can
work freely. We are also ready to abide
by a guideline, if made, saying that in
any controversial matter, while report-
ing, a specific distance should be main-
tained,” said Bihari.
He also expressed concern over the
situation of regional reporters, given
that even those in the capital are treated
other party has been involved in attack-
ing them. “In Maharashtra, no single
party can claim that its members have
not attacked journalists. This is why
they think that if there is any such law
and it is effectively implemented, then
party workers will be in trouble as the
Bill makes attacking journalists a non-
bailable offence,” he said.
ALARMING YEAR
The India Freedom Report: Media
Freedom and Freedom of Expression in
2017, released by The Hoot, termed
2017 an alarming year for journalists.
According to the report, 11 journalists
were murdered last year, 46 were
attacked and 27 cases were filed.
Minister of State for Home Hansraj
Ahir informed Parliament that 189 cases
of attacks on journalists were registered
in the last three years in different parts
of the country.
On March 23, journalists held a
protest march before the Delhi police
headquarters against the attacks on
them while they were covering a long
march conducted by Jawaharlal Nehru
so badly. “This is the condition in the
capital. These protests were going on in
Delhi when Parliament was in session,
and still journalists were assaulted. This
is not appropriate and a law is mandato-
ry to put a stop to these attacks. Though
the police suspended two officers that
seems eyewash.”
Bihari also said that attacks on the
media should be taken up as a special
issue and dealt with uniquely. Or else,
what significance would an arrest have if
the person got bail immediately?
As noted TV journalist Ravish
Kumar said during the recent journal-
ists’ protest in Delhi: “Does society think
it can survive if journalists are beaten up
and fired from their jobs? Society has to
think and come forward the next time
any such thing happens. People will
have to come out on the streets to save
democracy”. No country can survive by
eliminating or weakening the fourth pil-
lar of democracy.
Spotlight/ Mediapersons’ Killings
On September 5, 2017, India woke
up to the news of Karnataka journ-
alist Gauri Lankesh being shot dead.
The dastardly attack outraged the
public, who later flooded the streets
in Karnataka in protest against her
murder, allegedly by Hindu extrem-
ists. However, there are several
other journalists working for
regional organisations who too have
risked their lives by exposing the
illegal activities of politicians and
the influential. Here are some cases
that came to national attention:
In November 2017,
Sudip Datta
Bhaumik, a crime
reporter for Bengali
daily Syandan Patrika
was shot by a jawan
in Agartala, Tripura.
In September 2017,
Shantanu Bhowmik,
a journalist working for
a local TV channel,
was murdered by
members of the
Indigenous People’s
Front of Tripura in
Mandwai, Tripura.
On February 13, 2016, Tarun Mishra,
bureau chief of the Jan Sandesh Times,
was killed in Sultanpur, Uttar Pradesh.
He wrote against the many illegal activi-
ties taking place in the state.
In May 2016,
Indradev Yadav,
a local correspon-
dent for Taaza TV, a
Kolkata-based Hindu
news channel, was
shot dead in Chatra
district of Jharkhand.
In May 2016,
Rajdev Ranjan,
bureau chief of
Dainik Hindustan,
was killed when he
was returning from
his office in Siwan,
Bihar. Ranjan had
reported exten-
sively against for-
mer RJD MP
Mohammed Shahabuddin. In August,
2017, the CBI had filed a chargesheet
against Shahabuddin and six others in
the case.
In November 2016,
Dharmendra Singh, a
reporter of Dainik
Bhaskar, was shot
dead by three bikers
during his morning
walk. Singh reported
extensively on the
stone chip mafia in his
region in Bihar.
Nocountryforjournalists

China questions US tariffs
Briefs
Sri Lankan Prime Minister
Ranil Wickremesinghe has
defeated a no-confidence
motion in parliament. Late on
April 4, Wickremesinghe came
through the ballot with 122
votes against 76, needing 113
votes to keep control over the
225-member parliament.
However, 13 members of
President Maithripala
Sirisena’s Sri Lanka Freedom
Party rebelled against the
coalition government. Sirisena
has criticised the PM’s han-
dling of the economy and in
the past called on
Wickremesinghe who heads
the United National Party to
stand down.
Vietnamese rights lawyer jailed
Vietnamese human rights lawyer and activist
Nguyen Van Dai has been jailed for 15
years. Dai, 48, was charged in a Hanoi court
with activities “aimed at overthrowing the peo-
ple’s administration” in a tightly guarded trial.
His wife and five other activists have been given
jail terms of seven to 12 years. In March 2013,
Dai and others formed the Brotherhood for
Democracy, which conducted anti-government
activities to “build multi-party democracy” in
Vietnam, according to a copy of the official
indictment against Dai.
Wickremesinghe
wins trust vote
Acourt on April 6
found former
South Korean Presi-
dent Park Geun-hye
guilty of corruption,
abuse of power and
leaking of state
secrets. Park, 66,
who is said to have
colluded with friend
Choi Soon-sil, faced
18 charges and has
been jailed for 24
years. Meanwhile,
another former head
of state, Brazilian
Luiz Inacio 'Lula' da
Silva, who appealed
against a January
court ruling that
saw him sentenced
to 12 years in prison
on corruption
charges, has now got
an arrest warrant
served on him.
Judge Sergio Moro
issued it on April 5.
Park Geun-hye goes to
prison for 24 years
After US President Donald Trump
signed a presidential memorandum last
week proposing tariffs on up to $60 billion
worth of Chinese goods, Chinese officials have
questioned their legality at the World Trade
Organisation. The unilateral action complaint
was made at a meeting to the WTO's dispute
settlement body. The United States, on the
other hand, maintains that China is involved
in the theft of US intellectual property.
China has also, meanwhile, raised import
duties on a $3 billion list of US pork, apples
and other products.
Malaysia bans Mahathir’s party
The Malaysian Registrar of Societies has
ordered the temporary dissolution of for-
mer Prime Minister Mahathir Mohamad's new
political party because of missing paperwork
even as the country is gearing up for a general
election. The de-registration is a major setback
for Mahathir, 92, who is leading a campaign
by a federal opposition alliance to remove
Najib Razak, the prime minister. In a letter,
the Registrar of Societies said
Mahathir's Parti Pribumi
Bersatu Malaysia had failed
to meet a 30-day deadline
to hand over paperwork
proving the party had com-
plied with registration
requirements.
Across the UK, revolution is in the
air. Labour’s Stella Creasy and
fellow female MPs have urged women
to hold employers to account and
demand action over the gender pay
gap in the country. Of the 10,019
firms that submitted gender pay gap
data by the morning of April 5, 2018,
only 2,255 (22.5 percent) have a me-
dian women's hourly wage that is eq-
ual to or higher than that of men. The
remaining 7,764 (77.5 percent) pay
women less than men. It’s the first
time the information has been pub-
lished in the United Kingdom.
Creasy’s supporters include fellow
Labour MPs Jess Phillips and Lucy
Powell; Conservative MP Nicky
Morgan; Liberal Democrats Jo
Swinson, Christine Jardine and Layla
Moran; as well as the Scottish
National Party’s Hannah Bardell and
Plaid Cymru’s Liz Saville Roberts.
Will their campaign be effective?
MPs launch #PayMeToo campaign
—Compiled by Sucheta Dasgupta

States/ Andhra Pradesh Reorganisation Act, 2014
32 April 16, 2018
HOUGH the Andhra Pra-
desh Reorganisation Act,
2014, or the Telangana Act,
was enacted to create the
state of Telangana and
thereby divide Andhra Pra-
desh, even after four years there has
been little progress.
Recently, Sudhakar Reddy, a member
of the legislative council of Andhra Pra-
desh and a Congress member, appro-
ached the Supreme Court, alleging that
no action had been taken till date on
many provisions of the said Act. This
also includes setting up of separate high
courts for the two states as per Section
31 of the Act, distribution/allocation of
Andhra Pradesh Bhawan as per Section
48, distribution of employees, pension
liability and an apex council for distri-
bution of the waters of the Krishna and
Godavari rivers.
The Act was meant to create bound-
aries between the two states, determine
their assets and liabilities, and make
Hyderabad the permanent capital of
Telangana and the temporary capital of
Andhra Pradesh. The Act was published
in the official gazette on June 2, 2014.
However, the Bill in this regard was
rejected by the Andhra Pradesh assem-
bly and council because only 119 MLAs
were from Telangana out of 294. Non-
Telangana MLAs were strictly against
the bill to divide Andhra Pradesh into
two states. This is the first instance of a
state being reorganised despite opposi-
tion by the state legislature.
In August 2013, a Group of Ministers
was formed by the Union cabinet led by
Home Minister Sushil Kumar Shinde to
look into the division of Andhra Pra-
desh. Even after a long protest in both
Houses, the Bill was introduced by then
Lok Sabha Speaker Meira Kumar on
February 13, 2014. It was passed by
voice vote in the Lok Sabha with sup-
port from the BJP. Live telecast from
the House was cut off and the doors
were shut when the Bill was passed.
Some even called it a “black day” for the
Indian Parliament.
In order to stop the reorganisation of
Tardy Progress
T
DespitetheActbeingenactedfouryearsago,therehasbeen
littlemovementandbothAndhraPradeshandTelangana
functionfromthesamehighcourt
By Vinay Vats
highwayonlyway.com

Andhra Pradesh, some nine petitions
were filed in the Supreme Court. How-
ever, the Court rejected all of them, stat-
ing that it did not think it would be
appropriate for it to interfere.
H
owever, after the Bill was
passed, notices were issued to
the centre. One of the petition-
ers claimed that Parliament did not have
the power under Articles 3 and 4 of the
Constitution nor was there any other
provision which allowed the division of
a state except by an appropriate amend-
ment to Article 368. However, the law
ministry considered the issue and brou-
ght appropriate amendments to the Act
to make it legally valid.
At that time, there were discussions
for a common high court for Andhra
Pradesh and Telangana and it was felt
that this would not be feasible as the
existing high court was located in
Hyderabad and would become the high
court of Telangana after the reorganisa-
tion. It was stated in the Bill that there
would be a common high court for both
states and expenses incurred would be
shared by both states, based on the pop-
ulation ratio until a separate high court
was set up under Article 214 for the
residuary state of Andhra Pradesh. The
Andhra Pradesh Public Service Commi-
ssion was declared to be part of the state
of Andhra Pradesh and a separate one
was set up for Telangana.
Meanwhile, the name of the Andhra
Pradesh High Court was changed to the
High Court of Judicature at Hyderabad
but no separate high court was set up.
Other Sections of the Act were:
Section 89: It deals with project-wise
specific allocation, if such an allocation
has not been made by a tribunal consti-
tuted under the Inter-State River Water
Disputes Act, 1956.
Section 90: It is expedient in the pub-
lic interest that the Union should take
under its control the regulation and
development of the Polavaram Irrigation
Project for the purposes of irrigation.
Section 92: Principles, guidelines,
directions and orders issued by the cen-
tral government, on and from the
appointed day, on matters relating to
coal, oil and natural gas, and power
generation, transmission and distribu-
tion as enumerated in the Twelfth
Schedule shall be implemented by the
successor states.
Section 93: The central government
shall take all necessary measures as
enumerated in the Thirteenth Schedule
for the progress and sustainable
development of the successor states
within a period of 10 years from the
appointed day.
Section 94: Fiscal measures and tax
incentives to promote industries in
backward areas of both states.
7th Schedule: Dealt with fund distri-
bution.
8th Schedule: Dealt with river man-
agement
12th Schedule: Dealt with distribu-
tion of coal, oil and gas, and power
between the states.
13th Schedule: Establishment of edu-
cational institutions and development of
infrastructure. The centre was to take
steps to establish institutions of national
importance in the 12th and 13th Plan
periods in the successor state of
Andhra Pradesh.
It remains to be seen if the tardy
progress so far will be speeded up after
pressure from the Supreme Court.
SudhakarReddy,aCongresslegislator
fromAndhraPradesh,hasallegedinthe
SupremeCourtthatseveralprovisionsof
theAndhraPradeshReorganisationAct,
2014,areyettobeimplemented.
UNCERTAIN FUTURE
(Facing page) The board on the
Andhra-Telangana border signals
entry into Telangana; (right) Sushil
Kumar Shinde; (below) the High
Court of Judicature at Hyderabad
mirchi9.com

India Legal 16 April 2018

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