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India Legal 17 December 2018


Published on

“Mobocracy in the garb of
democracy can never be justified”
chairperson of NHRC,
on the human rights
challenges facing
India today and why
Acts, laws and policies
alone cannot change
the country unless
mindsets too change

Published in: News & Politics
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India Legal 17 December 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I December17, 2018 GDP Figures: Politics over economics Bulandshahr: Killing fields “Mobocracyin thegarbof democracycan neverbejustified” JUSTICEHLDATTU, chairpersonofNHRC, onthehumanrights challengesfacing Indiatodayandwhy Acts,lawsandpolicies alonecannotchange thecountryunless mindsetstoochange EXCLUSIVE INTERVIEW
  2. 2. AST week, a courageous police officer with an impeccable service record was brutally murdered in UP’s Bulandshahr by those who fit the description of ter- rorists. Subodh Kumar Singh, accompa- nied by a police posse, was investigating a cow slaughter report when crowds of stone pelters accosted him. The policemen were in the process of register- ing an FIR when Bajrang Dal activists began to hurl rocks at them. Meanwhile, the carcasses of cows in a tractor-trolley were placed in the mid- dle of the Bulandshahr-Delhi highway. Singh received serious head injuries. But even as his col- leagues put him in a vehicle and tried to drive away to the nearest hospital, they were intercept- ed and Singh was gunned down. If you believe that this type of violence occurs only in Baramulla and Srinagar, think again. As our UP correspondent (whose special report appears in this issue) puts it, with the Yogi Adit- yanath government’s controversial stand on cow slaughter, “non-State actors are taking the law into their own hands in the name of ‘gau raksha’ and feeling free to clash with the police because they feel that the government is on their side. These incidents in isolation are extremely danger- ous, but their alarming frequency now seems even more lethal”. In Bulandshahr itself, three such incidents, ranging from stone-pelting to a full-on tussle with the police in the name of cow slaughter, have taken place this year. What is perverse beyond belief is that Chief Minister Yogi Adityanath’s government has asked the police to give priority to investigating the alleged cow slaughter rather than the slaughter of the guardian of law in the line of duty. There can be no more hideous an example of the disdain for human rights than this latest inci- dent from the Hindi heartland and the govern- ment’s tepid response to it. It is a tragic irony that Singh lost his life to a murderous mob on the eve of National Human Rights Day. Despite the Constitution, which fully imbibes the spirit of the UN-mandated Universal Declaration of Human Rights, India has a dubious reputation in this field with innocent civilians often having to face the brunt of police brutality. Interviewed exclusively by India Legal on this subject, Justice HL Dattu, the chairperson of the National Human Rights Commission (NHRC) and former chief justice of India, says that while acts, laws and policies are introduced as forceful instruments for seeking change, mindsets too should alter. The essence of social orders, he stresses, is to serve better and not to rule one another as superiors because as human beings, we are born equals. He states: “In a welfare state and a democracy, it is the duty of the government to ensure protection of people’s rights. But the real challenge lies in the lack of awareness about the law, particularly among lower level officials who mostly deal with and have a direct interface with the public.” I n response to a query on how the NHRC is tackling the growing menace of lynching of minorities and cattle traders, Dattu has said that the NHRC has been very proactively taking suo motu cognisance of media reports on mob lynching, be it in cases involving people suspected of cow slaughter, witch-hunting or child-lifting. “I may not agree with the suggestions that the incidents of lynching happened only against people belonging to a particular community,” he states, “but we will not hesitate in recommending punitive action against any public servant if found guilty, but not merely on perceptions. Mobocracy in the garb of democracy can never be justified.” Let us hope that Subodh Singh’s death will not have been in vain. DANGEROUS ESCALATION Inderjit Badhwar Letter from the Editor L Whatisperverse beyondbeliefisthat UPCMYogi Adityanath’s governmenthas askedthepoliceto givepriorityto investigatingthe allegedcow slaughterrather thantheslaughter oftheguardianof lawinthe lineofduty. | INDIA LEGAL | December 17, 2018 3 Twitter: @indialegalmedia Website: Contact:
  3. 3. ContentsVOLUME XII ISSUE5 DECEMBER17,2018 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 4 December 17 , 2018 Bolster NHRC’s Powers Justice HL Dattu, chairperson of the National Human Rights Commission and former chief justice of India, shares his thoughts on the human rights challenges before India LEAD 16 Clarify, Don’t Harass It is crucial for the apex court to clarify the jurisdictional aspect of cruelty under the IPC lest the very objective underlying this law stands defeated 18 Storm in a Book The legal fight over a book on Baba Ramdev continues. Ramdev claims that its contents are baseless and defamatory, while Juggernaut Books says that it is a work of “serious journalism” SUPREMECOURT A Premature Move The Supreme Court quashes a Bombay High Court order on abetment of suicide, saying the latter cannot decide on the mental state of the accused till the probe is complete 19 12 20Questionable Claims A PIL filed before the Delhi High Court contends that UIDAI claims regarding Aadhaar are false as unclaimed dead bodies cannot be identified through this biometric system COURTS
  4. 4. | INDIA LEGAL | December 17, 2018 5 Collector’s Item REGULARS Followuson Twitter:@indialegalmedia Cover Design: ANTHONY LAWRENCE Cover Photo: UNI Ringside............................6 Courts ...............................7 Is That Legal.....................8 Delhi Durbar ...................10 Media Watch ..................48 Satire ..............................50 A coffee table book, Architecture of Justice, showcases pictures of court buildings of India in all their glory. The black-and -white as well as coloured photos reveal a “classic piece of history from India’s pre-Independence days” 44 Swinging into Action In the wake of the #MeToo wave, the J&K government has proposed making “sextortion” a criminal offence through amendments to various laws 34 No End in Sight 38 Though the Kerala HC has appointed a panel to oversee the Sabarimala pilgrimage, the state government still wants to impose restrictions and continue with the ban orders Pitch Queered 40 The police recruitment exam paper leak takes the shine out of the Vibrant Gujarat campaign Push for E-vehicles 42 The Delhi government’s plan to boost e-vehicle use over the next five years is a commendable one although costs and infrastructure issues could derail it Calm in Cauvery In the first of India Legal’s series on significant judgments by former chief justices, we begin with Justice Dipak Misra’s landmark judgment on the Cauvery river dispute 22 Politics Over Economy To show a vibrant economy under Modi, the government has released GDP back series data, slashing the UPA era growth rate 24 The apex court’s order to states to appoint senior police officers in consultation with UPSC has been challenged by a few states 28 ENVIRONMENT PHOTOFEATURE The Madhya Pradesh High Court has rescinded a rustication order issued against a college student in Bhopal for allegedly calling teachers “unpatriotic” Upholding Natural Justice 36 Warring for Control SPOTLIGHT The killing of an SHO in Bulandshahr shows the inability of the Yogi government to handle cow slaughter-related communal violence 30Killing Fields STATES SPECIAL No Common Yardstick The Kerala government is being rebuked for choosing to implement the orders of the Supreme Court selectively 32 ECONOMY
  5. 5. 6 December 17, 2018 “ RINGSIDE “I see the quick media narrative about my extradition decision.... The most important point is public money and I am offering to pay 100% back. I humbly request the Banks and Government to take it. If payback refused, WHY?” —Absconding Indian businessman Vijay Mallya on Twitter “... And this Vasun- dhara, give her rest, she has become very tired… has become very fat… Earlier she was thin… She is a daughter of Madhya Pradesh. Ask her to rest.” —Janata Dal (United) leader Sharad Yadav in a video while addressing a poll rally in Alwar “We have issued work orders of about `10 lakh crore and so far no contractor has had to come to my Delhi office to get the order...if I find any problem with the quality of roads, I will run a bulldozer over them.” —Union minister Nitin Gadkari at a book launch function in Delhi “It is not the job of politicians to con- struct temple or mosque. Let the (Supreme) Court take a call on this. We have almost entered election year, and the BJP is again fuelling people’s gain politically.” —Union minister and RLSP chief Upendra Kushwaha “We fear that mili- tants will come from there (Pakistan)... it is well known that Pakistan supplies terrorism throughout the world. Therefore, we are concerned about our country.” —Union minister Vijay Sampla on the Kartarpur corri- dor between India and Pakistan “My father wanted me to be a good citi- zen, one who doesn’t incite violence in the name of religion. Today my father lost his life in this Hindu-Muslim dis- pute, whose father will it be tomorrow?” —Abhishek, the son of Inspector Subodh Kumar Singh, killed in Bulandshahr “In your constitu- ency...children are dying.... There is no oxygen in the hospi- tals of Gorakhpur.... You are coming here and talking about building walls of hatred...” —AIMIM chief Asa- duddin Owaisi on UP CM Yogi Adityanath's comment that he will flee Hyderabad like the Nizam if BJP wins “States such as Uttar Pradesh have given so many prime ministers, including current Prime Minister Narendra Modi (who is the MP from Varanasi). None of you ask them (the leaders) why the state is lagging behind in industrialisation and why there are no jobs there... most of them prefer to rush to Mumbai. The burden on the city's infrastructure is increasing.” —MNS chief Raj Thackeray in Mumbai
  6. 6. The Supreme Court pas- sed directions for setting up special courts in every district of Bihar and Kerala to conduct trials in criminal cases pending against sitting and former MPs and MLAs. The bench also sought com- pliance reports from the Patna and Kerala high courts by December 14. These directions were passed by Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph while hearing a PIL which sought fast-track- ing of criminal trials against lawmakers. The Court took cognisance of the fact that 4,122 criminal cases are pending against sitting and former MPs and MLAs, of which 2,324 lawmakers are incumbents, and 430 out of 4,122 cases involve off- ences punishable with life sentence or death. Courts | INDIA LEGAL | December 17, 2018 7 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team MLAs nomination by L-G valid: SC While hearing a petition filed by witnesses in the rape cases against Godman Asaram Bapu, the Supreme Court approved the draft witness protection scheme prepared by the centre. The Court also directed the centre, all states (except J&K) and Union Territories to enforce it in letter and spirit. The scheme proposes to keep the identity of the witness secret, hold in-camera hearings in specially designed courts where the witness does not come face to face with the accused and ensure protection and relocation of witnesses in extreme cases of threats to his life. Approving the scheme, a bench of Justices AK Sikri and S Abdul Nazeer observed that the right to life under Article 21 includes the right of witnesses to testify in courts without fear or pressure. The bench also said the scheme shall have the force of law under Articles 141 and 142 of the Constitution until a suitable law is enact- ed by Parliament. The scheme has been framed by the centre based on inputs received from 18 states and Union Terri- tories, 5 State Legal Services Authorities and open sources including civil society, three High Courts as well as police personnel. The National Green Tribunal (NGT) has directed the Delhi government to immediately deposit a fine of `25 crore with the Central Pollution Control Board for failing to curb air pollution in the capital. The NGT bench headed by Justice AK Goel warned the state govern- ment that failure to comply will attract a fine of `10 crore per month till the order is fully execut- ed. The bench also said the gov- ernment can recover the amount from its officers and from polluters acting in violation of the law. Speed up criminal trials against MPs and MLAs, says SC The Supreme Court allowed the Income Tax (I-T) department to continue with the tax reassessment of Congress leaders Rahul Gandhi, Sonia Gandhi and Oscar Fernandes, in connection with the National Herald case. The Court, however, said that any assess- ment order passed by the I-T department cannot be given effect to until the final dis- posal of the case. The apex court is yet to hear an appeal filed by the Gandhis against a Delhi High Court order refusing to grant them relief. This tax probe follows a private crimi- nal complaint filed by BJP leader Subramanian Swamy before a trial court in connection with the National Herald case. Athree-judge bench of the Supreme Court led by Justice AK Sikri upheld the nomination of three MLAs to the Puducherry leg- islative assembly by Lieutenant- Governor (L-G) Kiran Bedi. The bench categorically ruled that the L-G had the power to nominate the MLAs. Bedi’s decision had first been challenged in the Madras High Court by a sitting Congress MLA, who contended that certain basic procedures were not follow- ed and the nominations were thus illegal. Since the High Court had decl- ined to interv- ene, the peti- tioner filed an SLP before the apex court. SC allows tax probe against Sonia, Rahul Witness Protection Scheme gets Supreme Court nod NGT imposes fine on Delhi govt
  7. 7. 8 December 17, 2018 ISTHAT What action can be taken by an employee if the employer does not make full and final settlement of the account once the employee leaves or is forced to leave his service in the private sector? If an employee does not get any payment after having entered into a full and final settlement, when he leaves or is forced to leave the service, then he can file a civil suit against his employer for recovery of dues. In case gratuity has not been paid, the employee can proceed against the employer under the provisions of the Payment of Gratuity Act, and in case of provident funds not being released after the employee has left, he can proceed against the employer under the Employees’ Provident Fund Act. If a wife has deserted her husband and is living apart without any reasonable cause, can the husband file for judicial separation or divorce, and is there a time period pre- scribed for filing such petition? In case a wife has deserted her husband and is living away from him, without any proper or reasonable cause, the husband is entitled to file for judicial separation or divorce. There is a condition, however, that the desertion should be for a continuous period of two years, immediately preceding the filing of petition before a court of law. Thus, it has to be proved that the wife has deserted her husband for a continuous period of two years, and without any justifi- able cause. When Wife Deserts Husband —Compiled by Deepankar Malviya Recovery of Dues from Employer Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis If a servant meets with an accident and injures someone, what is the liability of the master in that situation? If a servant meets with an accident while carrying out his master’s orders, and injures so- meone, the liabil- ity for the whole incident will fall on the master because of the principle of vicarious liabil- ity. Vicarious liability is a liability which falls on the superior for the act of the sub- ordinate; one major factor that binds this liability on the superior is that the subordi- nate should have been carrying out the orders of the superior when the incident occurred. If the servant was not carrying out any orders and was working at his own free will, he will be responsible and no liability will devolve on the master. Master’s Liability for Servant’s Acts ? Twitter: @indialegalmedia Website: Contact: In case of an accident which leads to the death of a person, how is the compensation calculated? If the fault of the driver is not proved, the legal heirs of the deceased are enti- tled to a compensation of `50,000, which has been fixed, and is based on the principle of “No Fault Liability”. However, in case a death has occurred in an accident due to the fault of the driver, the compensation to be awarded is calcu- lated on the basis of the life expectancy of the deceased which is multi- plied by the income of the individual. The income of the person is calculated at 50 percent of the actu- al income, as it is ass- umed that the person uses 50 percent for per- sonal expenses. Apart from these factors, the health of the deceased at the time of the accident is also taken into account along with his past health record. Compensation for Accident Victims
  8. 8. With Lalu Prasad Yadav, the BJP’s most devastat- ing and vociferous pop- ulist critic in jail, the rul- ing party has another voice to contend with— that of cricket star- turned-politician Navjot Singh Sidhu. His anti- BJP tirades, delivered in classic one-liners and stinging couplets replete with earthy imagery and folk poetry, are brutally unsparing of Prime Minister Modi and his alter ego, Amit Shah. He has become a one-person battering ram against the RSS brigades as well as his former party (BJP), as he travels across the country during the election season. His lines such as “Congress Gave Us Four Gandhis, BJP Gave US Three Modis” have gone viral. The BJP’s social media armies see him as another Lalu avatar, who punches with greater effect than even Rahul Gandhi’s rejuvenated Twitter cells. According to insiders, a BJP-friendly media outlet recently assigned a reporter to edit one of Sidhu’s video diatribes and add voices shout- ing “Pakistan Zindabad” to discredit Sidhu as a pro- Pakistani “anti-national.” 10 December 17, 2018 An inside track of happenings in Lutyens’ Delhi Much is being made of India’s suc- cess in getting the Dubai govern- ment to extradite Agusta-Westland chopper scam middleman Christian Michel. Michel is a British citizen and Dubai would not normally extra- dite a Britisher to a third country because of the diplomatic implica- tions. The Dubai government, in fact, had to pass a special adminis- trative order to pave the way for the extradition. The actual reason is a quid pro quo—Dubai was grateful to India for its help in sending back princess Sheikha Latifa Bint Moha- mmed Al Maktoum, daughter of the ruler of Dubai, who had run away from the kingdom on a friend’s yacht a few weeks earlier. Dubai authorities tracking the yacht called up the PMO and asked for help in returning the runaway royal to Dubai. It was red flagged for the prime minister who ordered National Security Adviser Ajit Doval to do whatever was necessary to intercept the yacht, Nostromo, and capture the princess and return her to Dubai, forcibly, if necessary. Doval got in touch with the Coast Guard and gave them the co-ordi- nates as sent from Dubai. Three Coast Guard cutters along with a naval helicopter swung into action and intercepted the yacht around 30 miles off the Goa coast, where heavily armed Marcos swarmed aboard and took over the vessel which was then diverted to Dubai where the princess was handed over. Dubai’s ruler was extremely grateful and indebted to India, hence the decision to send Michel to New Delhi. Three prominent women will be missing in electoral action when the 2019 Lok Sabha polls get underway. External Affairs Minister Sushma Swaraj has already announced that ill health prevents her from contesting from the Vidisha constituency for the third time—in 2014, she won the seat by a margin of over 400,000 votes, but her kid- ney transplant in 2016 has clear- ly taken its toll. Another BJP minister, firebrand Uma Bharti, a prominent face of the Ayodhya temple movement, has also announced she will not be con- testing the 2019 polls, ostensi- bly to work on cleaning the Ganga but sources say she too is facing health problems. The most prominent woman to be missing in action in 2019 is Sonia Gandhi. The former Congress president has been unwell for some time now and her campaign this year for the state assembly elections was highly restricted. She can no longer spend days on the cam- paign trail—she needs frequent health checks abroad. Sources say she has informed selected people in the party that she would like daughter Priyanka to contest from her Rae Bareli constituency. Priyanka is no stranger to the constituency, having campaigned there for the last two general elections on behalf of her mother and the constituents know her well, and respect her. WOMEN’S HEALTH THEPRINCESSFACTOR LALU PRASAD SIDHU
  9. 9. | INDIA LEGAL | December 17, 2018 11 Twitter: @indialegalmedia Website: Contact: Delhi Durbar With polling for the Madhya Pradesh assembly over, the euphoria in the Congress camp is eerily similar to what it was when the party contested the 2008 elections; confident that it would trounce the Shivraj Singh Chouhan-led BJP government. The BJP, in 2008, had completed its first term in office in MP and the five years had seen three chief ministers—Uma Bharti, Babulal Gaur and Chouhan. The Congress back then was confi- dent of reclaiming the state it had comprehensively lost in 2003. Even before the votes were counted, the Congress’ state leadership had begun discussing allocation of ministerial berths. On counting day, the Congress was rejected by the voters, although it registered its best performance in the state over the past 15 years, winning 71 of the state’s 230 seats against its tally of 38 in 2003 and 58 in 2013. Circa 2018. With the BJP battling strong anti- incumbency, the Congress is again buoyant about its potential victory. A coterie around state president Kamal Nath (below, right) has begun drafting the blueprint for his would-be cabinet, with the post of chief minister, of course, reserved for Nath, who inci- dentally has not contested the polls. Incumbent Leader of the Opposition Ajay Singh (below, left) is being pitched for the home minister’s role while senior leaders Rajendra Singh, KP Singh, Sajjan Verma, Arif Aqueel are tipped for other ministerial berths. Former Union minister Suresh Pach- ouri, who had been lobbying for the chief minister’s post in 2008, is touted to take over as the speaker, much to his chagrin. But will the Congress be fourth time lucky? We’ll know on December 11. COUNTING CHICKENS, AGAIN? Union minister Piyush Goyal was recently scheduled to fly to Guwahati with a team of senior officers on an important government assignment. The accompanying officials reached Delhi airport promptly at 6 am and waited patiently for the minister. When Goyal did not show up after a long wait, a worried official called his residence. The response from the factotum who answered the phone at Goyal’s residence was: “Sahib is sleeping.” The official tour was called off. This is not the first time Goyal has been involved in a controversy. A few months ago, when Finance Minister Arun Jaitley was recovering from a kidney transplant and Goyal was “acting” in his stead, he reportedly called several top Mumbai industrialists to inform them that he would soon occupy that post perma- nently. This did not sit well with the BJP hierarchy. DISQUIET ON THE WESTERN FRONT Till just a few months ago, the Cong- ress party sounded confident of sweeping the Rajasthan assembly polls while its leaders were unsure of the outcome of the elections due in MP, Chhattisgarh, Telangana and Mizoram. With polling now over for each of these states, there seems to be a mood reversal within the Grand Old Party. Congress insiders now seem confident of reclaiming MP, Chhatt- isgarh (both under BJP rule for 15 years) and Telangana but say the fight against the Vasundhara Raje-led BJP in Rajasthan hasn’t been a cakewalk. The Congress is now cautiously optimistic of Rajasthan but feels that the victory will be narrow. The disquiet in the party’s western front has been trig- gered by a slew of factors. The faction- al feud between chief ministerial hope- fuls Ashok Gehlot and Sachin Pilot, which the duo had managed to keep dormant for several months, erupted soon after the party began the process of selecting its candidates. Unlike MP, Chhattisgarh and Telangana, the Congress’s campaign in Rajasthan had also peaked too early. Its initial aggres- sion went missing as polling day approached. And then there was Congress President Rahul Gandhi's embarrassing “Kumbhakaran lift yojana” gaffe. The BJP, in contrast, had reserved its most virulent leg of the campaign for the last five days of canvassing— fielding Prime Minister Narendra Modi and BJP President Amit Shah, and not Raje, to take on the Congress. The Congress party’s poll observers returning from Rajasthan have been telling journalists that the dreaded “Modi factor” is back in play. ZZZZZZZZ…
  10. 10. Lead/ Interview/ NHRC Chairman HL Dattu What are the biggest human rights chal- lenges in India today? How effectively has the NHRC been able to respond to them? In a welfare state and a democracy, it is the duty of the government to ensure protection of people’s rights. We have a Constitution, which fully imbibes the spirit of the UN-mandated Universal Declaration of Human Rights. We have several laws and mechanisms to protect people’s rights. But the real challenge lies in the lack of awareness about the law, particularly among lower level offi- 12 December 17, 2018 to dealing with complaints of sexual assault against women, but there are still cases where police officials did not apply them. The NHRC has been trying its best to build awareness about the importance of protection and promotion of human rights. But government departments, both at the centre and particularly in states, need to carry on with a mass- scale campaign to make people, both in the system of governance and in public, aware of their rights and duties as well as the protection mechanism to prevent cials who mostly deal with and have a direct interface with the public. We have been organising awareness workshops on elimination of bonded labour for long, but our experience is that most of the officials are not aware of the provi- sions of the Bonded Labour System (Abolition) Act—the amount of immedi- ate relief to be given to a rescued bond- ed labourer, issuing his release certifi- cate and ensuring his rehabilitation at his native place in close co-ordination with concerned district authorities. There is a change in the IPC with regard On the occasion of International Human Rights Day (December 10), JUSTICE HL DATTU, chief of the National Human Rights Commission (NHRC) and former chief justice of India, in an exclusive interview to VRINDA AGARWAL speaks about major human rights challenges such as lynchings and refugee influx facing India. He says that while Acts, laws, and policies are introduced as forceful instruments for seeking change, mindsets too should alter. The essence of social orders, he stresses, is to serve better and not to rule one another as superiors because as human beings, we are born equals. Excerpts: “Mobocracy in the garb of democracy can never be justified”
  11. 11. | INDIA LEGAL | December 17, 2018 13 “Theneedofthehour istostrengthenthe NHRCintermsofits powers,human resourcesand infrastructure, keepinginview thelast25years ofitsfunctioning, people’sexpecta- tions,andourinter- nationalobligations forhavinganindep- endentandautono- mousnationalhuman rightsinstitution.” human rights violations. Cure is fine, but prevention is still a better option, where we all, as equal stakeholders, not just the NHRC, need to focus on its challenge. You have been quite vocal about the NHRC’s recommendations not being taken seriously. Has anything changed as a result of this? Not really as of now, but at least it has generated a debate. Even the courts have expressed their concerns on the issue of NHRC’s recommendatory pow- ers. Ultimately, it is for Parliament to amend the Act appropriately to make the best use of the directions of an apex body like the NHRC, in the interests of good governance and people’s welfare. The Protection of Human Rights (Amendment) Bill, 2018, is due for dis- cussion in the winter session of Parliament. Are you happy with the Bill? Can cross- party consensus be achieved? Parliamentarians, cutting across party lines, are best equipped to take a call on this draft Bill prepared by the government, as and when it is placed before Parliament. All I can say is that the need of the hour is to strengthen the NHRC in terms of its powers,
  12. 12. 14 December 17, 2018 human resources and infrastructure, keeping in view the last 25 years of its functioning and people’s expectations, as well as India’s international obliga- tions for having an independent and autonomous national human rights institution. The independence and autonomy of the NHRC has been questioned on many occasions. Is there a sound basis for this questioning? As far as human rights issues are con- cerned, the Commission has a history of taking cognisance of their violations on merit, irrespective of any political dispensation in the seat of power. The NHRC has been able to effectively use its mandate under the Protection of Human Rights Act, passed by Parliament in 1993. However, nobody can stop subjective appraisal of the Commission’s functioning by certain individuals. It is for the people to see through the facts and unfounded allegations. What is the estimate of the number of cases pending with the NHRC? What steps are being taken to reduce case pendency? Whenever a complaint of human rights violation is received by the Commission, on an average, in a week’s time or maybe earlier appropriate action is taken. Out of the cases where the Commission has sought a report from concerned government authorities, and which are not provided in time, the cases may take longer for final disposal. But the word pendency in this context should not give the impression that nothing is happen- ing at the end of the Commission in such matters. Till October 2018, the number of complaints received by the Commission was 6,294. Those disposed of, including old and fresh cases, were 7,479, and cases under consideration were 21,158. We are adopting all possible measures at our command to expedite the disposal of complaints. Vacancies at various levels, including at the level of members, stitutional guarantees. If there are instances of misuse of the SC/ST Act, it is also true that some people belonging to the SC/ST communities still face atrocities and discrimination. We have seen this in our open hearings and camp sittings. The law is there for all to guide them to work for a society where nobody’s fundamental rights are violat- ed and everybody lives as an equal citi- zen of the country. Ultimately, it is for the people to take a call to use the provi- sions of the law for constructive purpos- es only and not for harming others. Do our enabling laws and policies take us apart instead of bringing us clos- er? We need to study whether the dynamics of caste conflicts are changing and multiplying fast into class conflicts in India, and if so, reasons thereof and remedies to redress it. Acts, laws and policies are intro- duced as forceful instruments for seek- ing change when we tend to fail in our resolve to change ourselves within. However, no acts, laws and policies can change mindsets unless one resolves to change. Why do we not resolve to senior officers and supporting staff create some challenges for us. Recently, there has been a lot of debate on the misuse of the SC/ST Atrocities Act. How can caste-based violence be addressed? All stakeholders, including the political leadership, civil society and academi- cians, need to inform and educate peo- ple about issues related to castes. The Supreme Court delivered in the recent past a judgment which, through an ordi- nance, the government neutralised. The crux of the judgment was very clear; it did not do away with the provisions of the SC/ST Act, but only put checks and balances to ensure that they were not misused to implicate an innocent per- son, amounting to violation of his con- “Wewillnothesitateinrecom- mendingpunitiveactionagainst anypublicservantiffoundguilty inmoblynchingincidents,butnot merelyonperceptions.” Lead/ Interview/ NHRC Chairman HL Dattu
  13. 13. change ourselves, that we will do away with notions of discrimination, on any count, among fellow citizens? The essence of social orders and positions is to serve better and not to rule one another as superiors because as human beings, we are born equals. The government plans to deport Rohingya refugees living illegally in the country. The Supreme Court has also favoured the government on this issue. How far can the NHRC intervene in this matter? The Commission observed that the Rohingyas are, no doubt, foreign nation- als, but also human beings who fear per- secution back home. As it was a sensi- tive matter involving a major policy of the government, the Commission, very succinctly, also clarified, suo motu, in its intervention in the matter that from the human rights’ angle, its intervention was appropriate in the matter. With the positions hardened on both sides of the argument and different parties approaching the Supreme Court, the Commission also thinks it appropriate to make a mention of its stand during the course of the hearing in the apex court when the situation arises. The NHRC has limited jurisdiction over J&K, a hotbed of human rights viola- tions. Just recently, an 18-month-old girl in Kashmir was hit by pellets fired by the Army. Do you think it’s time to reconsider the NHRC’s powers in J&K? The NHRC’s jurisdiction extends to the whole of India, provided however, that it shall apply to J&K only in so far as it pertains to matters relatable to any of the entries enumerated in List I or List III in the Seventh Schedule of the Constitution as applicable to it. There is also a State Human Rights Commission which looks after rights violations by public authorities in J&K. However, wherever there is an involvement of cen- tral government officials in a case of human rights violation in J&K, the Commission may take cognisance. The North East has its own chal- lenges. For instance, in the case of encounter deaths, we have made several recommendations on which, eventually, the government of Manipur had to act when the Supreme Court intervened. The Commission had decided to respond to the stay order on its proceed- ings challenged by the government of J&K in the High Court of Jammu & Kashmir sometime back. I am of the view that mere technicalities of a provi- sion may not be a ground to strike down the recommendations of the Commi- ssion which are there only to take gov- ernments along in their efforts towards good governance. As for any changes in our jurisdic- tion, I would say it would again depend on the decision of Parliament, which is solely empowered to amend the PHR Act. Our views on the matter are already in the public domain. Lynching attacks on Muslim cattle traders have become commonplace and often, the police is found acting hand- in-glove with the perpetrators. How is the NHRC tackling this menace? The NHRC has been very proactively taking suo motu cognisance of media reports on mob lynching, be it in the cases involving people suspected of cow slaughter, witch-hunting or child-lifting. I may not agree with the suggestions that the incidents of lynching happened only against people belonging to a par- ticular community. We will not hesitate in recommending punitive action against any public servant if found guilty, but not merely on perceptions. Mobocracy in the garb of democracy can never be justified. Recently, the Supreme Court has underscored the need for having a separate law to deal with the menace of lynching. If that helps, it’s fine. Of late, there has been a lot of debate on whether judges should accept post- retirement government jobs or not. Even the Bar Council of India recently passed a resolution asking judges to avoid doing so. What are your thoughts on this issue? It is for an individual whether to accept post-retirement positions or not. The fact remains that there are statutory provisions for appointing retired judges in certain positions. The element of imputing subjective criticism in some people’s minds can never be removed; people need to understand that whoso- ever is working in a position post- retirement, be it a judge or a bureaucrat, will ultimately be guided by his mandat- ed authority and jurisdiction only in taking decisions and nothing else. | INDIA LEGAL | December 17, 2018 15 “Itisforanindividualwhether toacceptpost-retirement positionsornot....Theelement ofimputingsubjectivecriticism insomepeople’smindscan neverberemoved.” Twitter: @indialegalmedia Website: Contact:
  14. 14. Supreme Court/ Ramdev Book 16 December 17, 2018 HE “one-sale-off-the- shelves” saga of the book Godman to Tycoon: The Untold Story of Baba Ramdev continues. Re- cently, a Supreme Court bench comprising Justices Madan B Lokur and Deepak Gupta issued notice to the yoga guru on a plea filed by the publisher, Juggernaut Books. The plea challenged the Delhi High Court Order restraining the publication and sale of the book, purportedly based on the god- man’s life. Though the publisher had made Amazon India and Flipkart Internet Private limited, who were also selling the book online, parties the Court found it unnecessary. The book on the controversial god- man—who now runs one of India’s biggest FMCG companies with sales that jumped from a few crores in 2009 to more than `10,000 crore now—is written by journalist Priyanka Pathak- Narain. Juggernaut Books has main- tained all along that it is “a work of seri- ous journalism” and the product of over 50 interviews, many of them taped, with key players who are close to Ramdev and his family. Additionally, the book also contains a detailed 25-page note on the sources that lists the interviews, articles, police reports and RTI replies which are the basis for each chapter. Perhaps wary of the legal complica- tions that the book—believed by many to be an explosive expose on the hugely polarising yoga guru’s life—might get mired in, Juggernaut had reportedly submitted the manuscript for a detailed legal scrutiny prior to publication. The taped interviews had also been vetted by a forensic laboratory, Juggernaut has stated, to counter any possible allega- tions of doctoring the material to suit a certain narrative. Despite all this, on August 4, 2017, exactly a week after its launch, a trial court, while ruling that the contents of the book were defamatory and untrue and had been written without Ramdev’s knowledge, passed an ex parte order. The Court restrained the publisher from publishing and selling the book and also restrained the online sale of the book by Amazon India and Flipkart Internet Private Limited till further orders. All pending deliveries of the book were also put on hold. However, on April 28, 2018, the Additional Senior Civil Judge (ASCJ) passed an order lifting the ban on sale and publication of the book by Theapexcourthasissuedanoticetothegodmanonapleaby JuggernautBookschallengingtheDelhiHighCourt’sbanonthe publication,distributionandsaleofhisunauthorisedbiography By Shaheen Parween TWELL CONNECTED (Above) Ramdev with PM Modi; Juggernaut Books has maintained that the book is “a work of serious journalism” What’s Baba Trying To Hide? UNI
  15. 15. the trial court. Aggrieved by the order of the ASCJ, Ramdev filed a plea before the Delhi High Court, where Justice Anu Malhotra stayed the order of the ASCJ and said that the right to reputation under Article 21 of the Constitution cannot be sacrificed at the altar of the right to freedom of speech and expression. Ramdev in his petition submitted that the book was published intentional- ly with a view to harm his reputation and the author had written and the pub- lisher had published defamatory, dero- gatory and vexatious material about him, regardless of these being untrue. This had caused wrongful loss to him and gains to the respondents. One of the instances mentioned in the book is related to the CBI investiga- tion into the disappearance of Shankar Dev, who was Ramdev’s guru. It is alleged that the writer has projected it as if the probe was influenced and the case file was being surreptitiously han- dled. However, Ramdev claimed that judicial records made it evident that the closure report filed by the CBI had been accepted by the courts. The godman has also alleged that the publishers made false statements that he had not allowed the post-mortem of Rajeev Dixit, once his close aide, who met with a mysterious death. Ramdev claims that the medical record and death certificate of Dixit clearly stated that he had died due to cardiac arrest. Further, it has been stated by Ramdev in his plea that the book dis- cusses various chapters of his private life and, therefore, consent ought to have been taken from him prior to its publication. The fact that no such con- sent was taken from him is a violation of his fundamental right to privacy and reputation under Article 21 of the Constitution. Moreover, it has also been alleged that in order to tarnish Ramdev’s image among millions of his followers, the publisher was making copies freely available on the internet and had also reduced the price of the book from `300 to `50 in order to increase its circulation and defame him. The publisher in a written statement submitted that nothing contained in the book was defamatory and it was written with journalistic objectivity in a fair and impartial manner and in good faith for the public good. The author also claims that whatever was written in the book was based on documents that were publicly available. The interviews, she claimed, were also recorded and had been published after due verification to the maximum extent possible for a journalist. I ndian courts have been compara- tively placid in dealing with issues of defamation unlike western democracies which are known to award enormous damages on proof of libel. Nevertheless, there have been some notable cases. In R. Rajagopal vs State of Tamil Nadu, the publisher of the Tamil maga- zine, Nakkeeran, had brought a plea before the Supreme Court for prohibit- ing the state of Tamil Nadu, the inspector general of prisons and the superintendent of prisons from interfer- ing with the publication of the autobiog- raphy of the serial killer, Auto Shankar, who had been convicted for six murders and sentenced to death. When Raja- gopal, the editor of Nakkeeran, unveiled a pre-publication publicity drive, prison officials persuaded Shankar to request the magazine not to publish the autobiography. However, the Supreme Court, while allowing the publisher to publish the autobiography, said, “It must be held that the petitioners have a right to pub- lish, what they allege to be the life story/autobiography of Auto Shankar insofar as it appears from the public records, even without his consent or authorization. But if they go beyond that and publish his life story, they may be invading his right to privacy and will be liable for the consequences in accor- dance with law.” An equally celebrated case was Khushwant Singh vs Maneka Gandhi where the latter, a Union minister now, had filed a suit for injunction and dam- ages against the celebrated editor, Khushwant Singh. Gandhi claimed that she was aggrieved by the contents of a chapter in the book titled Truth, Love and a Little Malice, which were pur- portedly defamatory. The apex court held that “in case of an article/publication of an allegedly offending and defamatory nature, a pre- publication injunction of restraint should not be granted in case the defen- dant who supports the publication cites truth as a defence and pleads justifica- tion. In such a case damages are appro- priate remedy”. Experts say that with more defama- tion cases now piling up in courts, it is necessary to strike a balance between the right to privacy under Article 21 and the right to freedom of press under Article 19 of the Constitution so that either right is not trampled upon. | INDIA LEGAL | December 17, 2018 17 Twitter: @indialegalmedia Website: Contact: BabaRamdevtookobjectiontothe statementsinthebookthathehadnot allowedthepost-mortemofRajeevDixit (above),oncehiscloseaide,whomet withamysteriousdeath.
  16. 16. Supreme Court/ Section 498A 18 December 17, 2018 HE jurisdictional aspect of Section 498A of the Indian Penal Code (IPC) came up before the Supreme Court recently. This section, which deals with a husband or a relative of his sub- jecting a woman to cruelty, says: “Whoever, being the husband or the rel- ative of the husband of a woman, sub- jects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” The case related to a petitioner, Rupali Devi, who had been subjected to cruelty by her in-laws over dowry demands. While she had gone to her parents’ home and was living with them, her husband had a second marriage. Upon protesting, she was beaten up and turned out of the house. Left with no choice, she filed a case of cruelty against her husband and his relatives before the chief judicial magistrate (CJM) of Deoria in Uttar Pradesh. However, it was held that the CJM did not have territorial jurisdiction to deal with the case; the same view was affirmed by the Allahabad High Court. Aggrieved by the order of the High Court, the petitioner approached the apex court where the following question was raised: “Whether a case of cruelty on account of dowry harassment pun- ishable under Section 498A of the IPC can be registered, investigated and punished in a jurisdiction different from the one from which the aggrieved spouse has been forced out on account of such harassment?” The petitioner argued before the Court that Sections 177 and 178 of the Criminal Procedure Code, which deal with jurisdictional matters, must be interpreted “liberally so that a woman forced to leave her matrimonial house on account of the conduct of the accused persons is not left without an effective remedy against such conduct thereby frustrating the very object underlying Section 498A (IPC)”. The Gujarat High Court, too, had dealt with a similar matter. However, its stand on this issue was in stark contrast to that of the Allahabad High Court, as it opined that cruelty under the IPC was a continuing offence and that the agg- rieved wife was “left with no other option, but to go back to her parents’ house for shelter. If she was asked to prosecute her case under Section 498A of the IPC at her matrimonial home, it would amount to deprivation of her right to prosecute the case”. Crimes such as cruelty and ill-treat- ment of women are a reality in India despite laws being in place to prevent them. Section 498A of the IPC was introduced with the intent to curb the practice of cruelty by a husband and his relatives. Therefore, the provision for cruelty should be interpreted in such a manner that it fulfils the object of elimi- nating such social evils from society. For Section 498A to fulfil its objec- tive, it is necessary to first have a clear understanding about its jurisdiction. A number of cases have been dealt with by various high courts regarding the juris- dictional aspect of cruelty under the IPC. It is, therefore, crucial for the apex court to clarify this matter. T Needless Harassment Whendealingwithacaseofcrueltyonaccountofdowryharassment,itisimportanttoclarifyif thecourthearingthecasehasterritorialjurisdictiontodealwithit By Pragya Ratna UNDER LEGAL SCRUTINY Women protest outside the Supreme Court against the dilution of Section 498A, IPC Twitter: @indialegalmedia Website: Contact:
  17. 17. | INDIA LEGAL | December 17, 2018 19 the Supreme Court as the investigation had not been completed. The apex court reversed the High Court order to quash the FIR, and stated: “There are definite allegations that the first respondent would keep on calling the wife of the victim on her mobile and keep harassing her, which allegations are supported by the statements of the mother and the wife of the victim recorded during investigation.” The top court further stated that the High Court was not justified in quashing the FIR as it shouldn’t have questioned the intentions of the accused as such a question would only be answered at the appropriate stage. In the present case, as the investigation was yet to be com- pleted and the chargesheet to be filed, it said that “the High Court ought not to have gone into the aspect whether there was requisite mental element or inten- tion on part of the respondent”. The apex court then ordered resumption of the investigation. This is yet another instance of the top court coming to the aid of those who are unfairly and unjustly treated. Supreme Court/ Suicide Case HE Supreme Court recently observed that High Courts are not authorised to quash an FIR by adjudging the mental state of an abettor of suicide until the pending investigation is complete. A Supreme Court bench of Justices UU Lalit and DY Chandrachud allowed an appeal after the Bombay High Court quashed an FIR relating to a sui- cide, saying the accused did not have any intention to aid, instigate or abet the sui- cide of the deceased. The case was filed in 2015 when the accused, Vinayak Bhagat, a teacher in a village school, started harassing his col- league by calling her repeatedly on the phone. Her husband, Sanjay, tried to rea- son with him and asked him to stop the unwarranted behaviour, but in vain. This resulted in a verbal altercation between the accused and the husband. A few days later, the latter committed suicide and left behind a suicide note addressed to an officer of a police station, implicating the accused as an abettor. The note said that his family had been ruined by Bhagat and therefore he should not be pardoned and should be hanged until death. After the case was registered, the accused applied for anticipatory bail, which was rejected. But when he applied for quashing of the FIR, it was granted by the Bombay High Court. The judgment said that prima facie there was no mate- rial evidence to suggest that the accused had any intention to aid, abet or instigate the commission of the suicide. It said: “There is no reference to any active or direct act on the part of the applicant which led Sanjay to commit suicide. Similarly, there is neither any instigation nor any intentional act done which com- pelled the deceased to commit suicide.” However, the case went in appeal to Twitter: @indialegalmedia Website: Contact: T ENSURING JUSTICE A Supreme Court bench of Justices UU Lalit (left) and DY Chandrachud said that the High Court was not justified in its decision Theaccusedwasharassinghis colleague.Herhusbandcommitted suicideafternotbeingabletostopthe accusedandleftbehindasuicidenote implicatinghimasanabettor. A Matter of Intent TheSCpulleduptheBombayHighCourtforquashinganFIRin acriminalcaseandsaidthatitcannotadjudgethemental stateofanaccuseduntiltheinvestigationiscomplete By Naved Ahmed
  18. 18. Courts/ Biometric Data 20 December 17, 2018 N the Supreme Court hearings on the constitutional validity of the Aadhaar Act, the government repeatedly highlighted its advan- tages and portrayed it as an instru- ment which can change the face of public welfare and services in the coun- try. However, a recent PIL in the Delhi High Court seeks directions to the cen- tre and the Unique Identification Authority of India (UIDAI) to utilise Aadhaar biometrics to identify un- claimed dead bodies. The case came up before Chief Justice Rajendra Menon and Justice V Kameswar Rao. The UIDAI informed the bench that it was technically not possible to match the fingerprints of an unidentified body with the biometrics of 1.2 billion people stored in its database. It further submit- highlights the difficulties faced by inves- tigating agencies in the identification of unclaimed dead bodies. According to the 63rd annual report of the National Crime Records Bureau (NCRB), “Crime in India”, 34,592 un- identified bodies were recovered in 2015. Some 100 bodies were recovered on a daily basis. The petitioner said that the NCRB has the biometrics of people involved in, or convicted for an offence punishable with rigorous imprisonment of one year or more, under Sections 3 and 4 of the Identification of Prisoners Act, 1920. Thus, the NCRB has the bio- metrics of about 4.5 million convicts and undertrials, and in case an uniden- tified body is found and matched with any of those biometrics, it is promptly handed over to the concerned family. But in cases where it doesn’t match, the NCRB is dependent on biometric data available with the UIDAI. But the UIDAI does not share Aadhaar details, due to the restrictions imposed under Sections 28, 29 and 33 of the Aadhaar Act, 2016. Dead bodies that are not mutilated ApetitionfiledbeforetheDelhiHighCourtsaysthattheUIDAI’s claimsregardingAadhaararefalseasunclaimeddeadbodies cannotbeidentifiedthroughthisbiometricsystem By Shivani Bhasin I A CRUEL FATE Investigating agencies often find it difficult to identify dead bodies that are mutilated False Claims? ted that matching of biometrics, includ- ing fingerprints and iris, is done on a one-to-one basis and an Aadhaar num- ber is required for it. The petition, filed by social activist and lawyer Amit Sahni, seeks directions to the centre and states to mandatorily scan the biometrics of unidentified bod- ies and match them with pre-existing biometrics or Aadhaar details so that the body can be handed over to the fam- ily for last rites, to ensure a “respectable and dignified exit”. The petition also Accordingtothe63rdannualreportof theNationalCrimeRecordsBureau, 34,592unidentifiedbodieswere recoveredin2015.Some100bodies wererecoveredonadailybasis. Ralf Roletschek/
  19. 19. and are found with an identity card are easily identifiable by law enforcement agencies. But the identity of those who don’t fall in either category is difficult to determine. Due to this anomaly, a per- son who is alive is often presumed dead due to wrong identification. This has been used intentionally by those who have criminal charges against them to facilitate their disappearance. The petition also pointed out that law enforcement agencies have to follow a whole set of rules titled “Duties of police regarding missing persons and unidentified dead bodies”. Photographs of the dead have to be published in newspapers and in the electronic media for identification. In many cases, hair, stool, vomit, etc, of the unidentified body are also to be preserved. As per UIDAI’s website, more than 1.2 billion people have been enrolled for Aadhaar, which constitutes more than 90 percent of the population. The peti- tioner stressed the benefits of using Aadhaar’s biometric information for unidentified bodies and claimed it was the easiest, most economical, fastest, and most accurate method to establish the identity of a person. This would not only reduce the burden on the excheq- uer for disposing of dead bodies, but also do away with the hassles relating to preservation of body parts. H owever, Section 29 of the Aadhaar Act says that “no core biometric information, collect- ed or created can be shared with any- one”; it can be done only with prior per- mission of a district judge as per Section 33 of the Act. Thus, the petition prayed for directions for establishment of spe- cial courts for speedy disposal of appli- cations under Section 33 on the same day or the day after a body is discovered, regardless of holidays. The petitioner has also sought directions to the govern- ment to frame guidelines to ensure proper disposal of unidentified bodies. Pursuant to a notice issued by the Court in this matter to the UIDAI and NCRB, the former had said it was im- possible to identify unclaimed bodies using Aadhaar data on technical grounds. However, Sahni placed an application before the Court about the UIDAI claiming through CDs, pam- phlets and news reports that several missing persons had been traced using Aadhaar. The UIDAI has claimed in news reports that more than 500 chil- dren had been traced using Aadhaar biometrics. Sahni contended that news reports and pamphlets “falsify the stand of the UIDAI that dead persons cannot be identified by using Aadhaar”. Sahni said: “On one hand, the Aadhaar autho- rity is claiming that it is useful for trac- ing missing persons and on the other hand, they are opposing my PIL for us- ing Aadhaar to establish identity of un- identified dead bodies.” The UIDAI has been asked to file a reply to the applica- tion. In fact, the UIDAI website claims: “It (Aadhaar) is unique and robust enough to eliminate duplicates and fake identities and may be used as a basis/primary identifier to roll out sev- eral government welfare schemes and programmes for effective service deliv- ery thereby promoting transparency and good governance.” This objective will be fulfilled only when the UIDAI involves other govern- ment departments. Only then can the biometric data of this huge population become an asset. | INDIA LEGAL | December 17, 2018 21 Twitter: @indialegalmedia Website: Contact: ThePILfiledbysocialactivistandlawyerAmitSahniwas heardbyChiefJusticeRajendraMenon(left)andJustice VKameswarRao(right)oftheDelhiHighCourt.TheUIDAIhas beenaskedtofileareplytotheapplication. USEFULNESS IN DOUBT? According to the UIDAI website, more than 1.2 billion people have enrolled for Aadhaar
  20. 20. Special/ Former CJI Dipak Misra’s Judgments 22 December 17, 2018 ISTORICALLY, despite Karnataka being an upper riparian state, it has suf- fered from constraints, resulting in its limited access to the surface flow of the Cauvery compared to Tamil Nadu. In the light of this, the Supreme Court modified the award passed by the Cauvery Water Disputes Tribunal inso- far as the share allocated to Karnataka is concerned, but kept the major part of the award intact. Pursuant to the Cauvery water dis- pute with Karnataka, Tamil Nadu raised the issue before the Union government in July 1986. It requested adjudication of the dispute by a tribunal constituted under Section 3 of the Interstate Water Disputes Act, 1956. On the basis of this request, the government constituted the Cauvery Water Disputes Tribunal in June 1990. The Tribunal, while adjudicating the water dispute affecting Karnataka, Ta- mil Nadu, Kerala and the Union Terri- tory of Puducherry, passed its award in February 2007. It is as follows: “Since the major shareholders in the Cauvery waters are the states of Karnataka and FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa chiefjusticemusttackle.IndiaLegalrunsaseriesonthesejudgments H CASEDETAILS Title: The State of Karnataka by its Chief Secretary vs State of Tamil Nadu by its Chief Secretary & Ors Bench: CJI Dipak Misra, Justices Amitava Roy and AM Khanwilkar Case no: Civil Appeal no. 2453 of 2007 Date of judgment: February 16, 2018 Bridge Over Troubled Waters By Justice K Sreedhar Rao
  21. 21. Tamil Nadu, we order the tentative monthly deliveries during a normal year to be made available by the State of Karnataka at the inter-State contact point presently identified as Billigun- dulu gauge and discharge station locat- ed on the common border as under: The total above quantum of 192 TMC of water comprises 182 TMC from the allocated share of Tamil Nadu and 10 TMC allocated for environmen- tal purposes.” Thereafter, the award was challenged in the Supreme Court by Karnataka, Kerala and Tamil Nadu. While observ- ing that the share allocated to Karna- taka was deficient, the Supreme Court granted an additional 14.75 TMC of water to Karnataka, ie, 10 TMC (on account of availability of groundwater in Tamil Nadu) + 4.75 TMC (for drinking and domestic purposes, including water needs for the whole of Bengaluru). Thus, 14.75 TMC would be deducted from the quantum allocated by the Tribunal in favour of Tamil Nadu. The final statement by the bench headed by CJI Dipak Misra said: “After considering all relevant materials broug- ht on record, we are of the view that having regard to imperative of economy of consumption of water, the final deter- mination of irrigated area arrived at by the Tribunal for Tamil Nadu, cannot be declared incorrect or fallacious. We do not find any perversity of approach in the Tribunal’s findings with regard to the allocation of water for domestic and industrial purposes in the State of Tamil Nadu. Hence, the same requires no interference. Drinking water require- ment of the overall population of all the states has to be placed on a higher ped- estal as we treat it as a hierarchically fundamental principle of equitable dis- tribution. The Tribunal has allocated a total of 30 TMC of water towards the overall needs of the State of Kerala and | INDIA LEGAL | December 17, 2018 23 we concur with the said conclusion of the Tribunal. The rejection of the stand of Kerala seeking trans-basin diversion for hydro-power projects by the Tribun- al is justified. We concur with the Trib- unal’s findings that the Union Territory of Puducherry is entitled for a second crop, having regard to its unique geo- graphical position and its irrigated area being approximately 43,000 acres. “The admission of facts along with the confirmatory empirical data suggests that around 20 TMC of groundwater is available beneath the surface in Tamil Nadu which the Tribunal has not taken into account citing it as a conjecture. We, while keeping in mind the risks associat- ed with over extraction of underground water, deem it fit that 10 TMC of the said available groundwater in Tamil Nadu can, in the facts and circumstances of the present case, be accounted for in the final determination of its share. ‘The Tribunal had drastically reduced the share of Karnataka towards domes- tic and industrial purpose for the reason being that only 1/3rd of the city of Bengaluru falls within the river basin and also on the presumption that 50% of its drinking water requirements can be met from groundwater supply. The said view taken by the Tribunal ignores the basic principle pertaining to drinking water, and is thus unsustain- able. Keeping in mind the global status that the city has attained, an addition of 4.75 TMC is awarded to Karnataka….” Twitter: @indialegalmedia Website: Contact: Month TMC June 10 July 34 August 50 September 40 October 22 November 15 December 8 January 3 February 2.5 March 2.5 April 2.5 May 2.5 STICKY ISSUE The sharing of Cauvery river waters has caused much strife amongst Karnataka, Tamil Nadu, Kerala and Puducherry
  22. 22. Economy/ GDP Figures 24 December 17, 2018 HERE are two kinds of statistics: the kind you look up and the one you make up. The recent revi- sion of past GDP numbers by the Modi government is a case of the latter. Quibbling about the past to make the present look good, act- ing as the saviour by questioning the achievements of past leaders and run- ning roughshod over the independence of institutions has now become the hall- mark of the Modi government. And since meaningful economic reforms and development have been elusive (despite the advantage of being the first govern- ment to have a majority in 30 years), State power has now been used to manipulate economic growth numbers. The NITI Aayog (which really has no expertise in calculating GDP) recently announced that it had recalculated GDP numbers going back to 2005. And sur- prise, surprise. Not only did they revise the GDP growth under the present gov- ernment upwards, but also revised downwards the growth under the previ- ous government. This shouldn’t come as a surprise as this government has a fetish for defining its achievement on a comparative basis. Remember all the chest-thumping about how the Indian economy was growing faster than the Chinese economy? When Raghuram Rajan, the former RBI governor, dared to remind everyone that India’s relative performance was immaterial and that the focus should instead be on real reform to get the country to double-digit growth, he was unceremoniously let go. The latest revision of past GDP num- bers, right before a major election, to Gaming the System Consumption,investment,governmentspendingandexportswereallhigherunderthe ManmohanSinghgovernmentthanunderModi.Yet,somehow,revisionsofpastGDPnumbers claimabettereconomicrecordunderModi.Factorfudging? By Sanjiv Bhatia 12 10 8 6 4 2 9.3 7.9 8.5 10.3 6.6 5.2 7.4 ManipulationofData 2006 UPA Years NDA Revision NDA Years Av. Growth 7.3% % Annual Growth 2012 2015 2018 Average UPA Growth Earlier 8.2% Revised Under Back Series 6.9% Average NDA-II Growth 7.3% The back series adjusts GDP numbers for the period using new methodology with the base year as FY12. T Rajender Kumar
  23. 23. | INDIA LEGAL | December 17, 2018 25 show illusory “development” was, there- fore, to be expected. How else would you wipe out memories of the most disas- trous State-imposed economic policy in Indian history—demonetisation? The recalculation of GDP has lowered the average annual growth rate for the years 2005 to 2012, from 8.2 percent per year to 6.9 percent to make the UPA govern- ment look bad, and raised the average growth rate of the Modi years to 7.3 per- cent. And since no one but the govern- ment has access to the underlying data used to calculate the GDP, what better way to show growth than by juggling these numbers—no one would have the ability to cross-check these revisions. But while statistics may be pliable, facts are stubborn things. Anyone living in India during the 2005 to 2012 period will tell you that those were times of unprecedented growth. A lot of new wealth was created, and there was a sig- nificant reduction in poverty as a result of a genuine increase in income (not from new welfare schemes). The real estate sector was booming, a communi- cation revolution was taking hold, bank lending was growing at 20 percent and exports at 14 percent annually, corpora- tions were making record profits, the stock market was booming and the dol- lar bought only `44. I t doesn’t feel like that today. Farmers are protesting, small shop- keepers are hurting, banks are not lending because they face loan defaults at an increasing rate, the real estate sec- tor is floundering, unemployment is increasing and the rupee keeps falling. The government keeps touting India as the world’s fastest-growing economy, yet there seems to be no corresponding increase in prosperity. The government claims that the economy has grown at an average 7.3 percent a year over the last four years which translates to a 40 percent increase in wealth over this period. But who is prospering from this? In its simplest terms, the GDP of a country is the sum of the money spent by consumers, businesses and the gov- ernment to buy goods and services pro- duced by it. To this is added goods and services that are exported minus the country’s imports. Thus, a country’s GDP is the sum of consumer spending (C), business investment (I), government spending (G), exports (X) minus imports (M). This produces the mathematical equa- tion: GDP = C + I + G + X - M. It is important to understand that this is a mathematical identity and, therefore, holds irrespective of whether GDP is calculated using factor or mar- ket prices and is invariant to the base year used to calculate it. We can thus use this to compare the economic growth under the two governments. Common sense tells us that it is improbable that personal consumption (C) was higher during the Modi years because we know that demonetisation destroyed people’s ability to buy goods and services. There is no arguing the fact that the body doesn’t get healthier if 84 percent of the blood is removed from it. The data confirms that. Personal con- sumption (C) during the 40 quarters of the Manmohan Singh government grew at an average quarterly rate of 3.2 per- cent. In contrast, in the 13 quarters of the Modi government, the average quar- terly growth in personal consumption is only 2.6 percent. We know from economic theory and the empirical evidence that higher levels of investment lead to higher GDP. Inv- estment (I) as a percent of GDP was sig- nificantly higher during the two UPA terms. It averaged 34.5 percent from 2004 to 2014 peaking at 41.1 percent in 2011. In comparison, investment has been declining during the Modi years, averaging 30.8 percent and declining to its lowest level of 29.8 in 2017. The third variable in the GDP identity is government spending (G). Higher levels of government spending lead to higher GDP. Government spending grew at an average quarterly rate of 4.1 percent under the Singh gov- ernment compared to only 2.2 percent under the Modi government. This too indicates a higher GDP under the Manmohan Singh administration. What about exports and imports? Higher exports (and lower imports) lead to higher economic GDP. How do the two governments compare on trade? WhenRaghuramRajan,theformerRBIgovernor, daredtoremindeveryonethatIndia’srelative performancewasimmaterialandthatthefocus shouldinsteadbeonrealreformtogetthecountryto double-digitgrowth,hewasunceremoniouslyletgo.
  24. 24. rate earnings under the Singh adminis- tration compared to a mere 4 percent over 2014-18 was just statistical noise? Has economic theory been wrong for the last four decades or are we being fed a load of bull? This government’s obsession with simple constructs like GDP growth wi- thout understanding the complexities of measuring economic progress has been damaging to India’s growth because it shifts attention away from real reform to gaming the system. The GDP of any country is a fuzzy and imprecise meas- ure of the economic well-being of its cit- izens; so, precious little will be gained by trying to game that data. Let’s, instead, come to grips with reality. India is a long way from being considered prosperous. Let’s not detract from focusing on the hard work required to improve the quality of life in the country. Let’s not move our atten- tion away from the goals of “minimum government”, economic freedom, free markets, protecting individual rights, equal justice for all and increased per- sonal responsibility. And let’s not fudge data and demean the efforts of the real contributors to economic growth—the millions of Indians who get up every morning and go to work to produce the goods and services that create the GDP. The saddest thing of all is that India now joins the ranks of countries whose official data will not be trusted by global investors. The World Bank puts India’s 2018 GDP at $2.63 trillion. But recalcu- lating from 2005 using the new GDP growth numbers puts India’s GDP at $1.715 trillion, a reduction of $905 bil- lion. This drops India’s ranking from the 7th largest economy to the 12th largest, all thanks to the Modi government. Talk about cutting your nose to spite your face. —The writer is a financial economist and founder, Economy/ GDP Figures 26 December 17, 2018 Despite a weaker rupee (which should increase exports), exports have dropped since Modi came to power. In October 2018, India’s exports were $26.98 bil- lion—13 percent lower than when Modi came to power in 2014. In contrast, over the 10 years of the two UPA administra- tions, India’s exports grew at an average annual rate of 14 percent. According to the IMF Outlook Report for 2018, India’s exports-to-GDP ratio is 11.4 per- cent and this is the lowest since 2005. India’s export slowdown is particu- larly alarming during the Modi years because it comes at a time when overall world trade has grown at the fastest pace in 10 years. India has failed to take advantage of the surge in world trade. An indicator of an economy’s participa- tion in global trade is trade openness which is measured by the sum of exports plus imports as a percent of GDP. In 2012, India’s openness to trade was at 43 percent. By 2017, this number had dropped to 27.4 percent. Clearly, some- thing is amiss. All of Modi’s global hobnobbing and bear hugs have not resulted in greater trade opportunities for the country. The combination of slowing exports and increasing imports has pushed the trade deficit from $137 billion in 2013 to $162 billion in 2017-18. So, while we don’t have access to the detailed data required to calculate GDP, we do know that each of the five compo- nents that make up a county’s GDP was worse in the Modi years than during the Singh government. Yet, their sum is much higher, according to NITI Aayog. Are we supposed to believe that despite lower levels of consumption, invest- ment, government spending and exports, somehow mysteriously GDP was higher under Modi than Singh? Or that the 20-25 percent growth in corpo- GrowthRevisited GDP back series data slashes growth rate during UPA era Fiscal Year Beginning year GDP ($ B) End year GDP ($ B) Revised growth 2005 721.585 778.591 7.90% 2006 778.591 841.656 8.10% 2007 841.656 906.464 7.70% 2008 906.464 934.564 3.10% 2009 934.564 1008.395 7.90% 2010 1008.395 1094.108 8.50% 2011 1094.108 1151.002 5.20% 2012 1151.002 1214.307 5.50% 2013 1214.307 1292.023 6.40% 2014 1292.023 1387.633 7.40% 2015 1387.633 1501.418 8.20% 2016 1501.418 1608.019 7.10% 2017 1608.019 1715.756 6.70% Twitter: @indialegalmedia Website: Contact:
  25. 25. Spotlight/ State DGPs 28 December 17, 2018 HE Supreme Court’s deci- sion on petitions filed by two states, seeking modifi- cation of an earlier order on the appointment of director generals of police (DGPs), will be watched keenly, not only by the petitioner states, but other states as well. Appointment to the post of the head of police in states, and consequently, to other key posts such as senior superin- tendents of police (SSPs) and down to station house officers (SHOs), has become highly politicised. The police force, which is a state subject, is the key to power and administration in states. Naturally, no state is willing to give way. In some states, the power was grossly misused to openly align the police force with the political dispensation of the day. For instance, the previous Parkash Singh Badal government in Punjab had crossed all limits to realign the jurisdic- tions of police stations and police dist- ricts with those of the assembly consti- tuencies. This was ostensibly done for the purpose of better administration. However, the intention behind such a move was revealed soon after, when the ruling Shiromani Akali Dal appoint- ed “halqa in-charges” in various consti- tuencies. These appointments were totally political, and even included defeated party candidates. The idea, obviously, was that police stations in these constituencies will work as per the diktat of the “halqa in-charges”. Before the realignment of police dis- tricts, there were several assembly con- Erosion of Power Theapexcourt’sordertostatestosendalistofseniorpolice officerstotheUPSCafewmonthsbeforetheincumbent’s retirementmayberesisted,aslawandorderisastatesubject By Vipin Pubby in Chandigarh T PLANS GONE AWRY Former Punjab CM Parkash Singh Badal’s interference with police administration con- tributed to the Akalis’ defeat in the state polls UNI
  26. 26. | INDIA LEGAL | December 17, 2018 29 stituencies which came under the juris- diction of more than one police set-up. The political appointees interfered so much with the police administration that FIRs were registered only with the- ir concurrence. This led to huge resent- ment as these appointees evidently helped only their supporters. It’s believ- ed that one of the reasons for the big defeat of the Akalis was the resentment caused by the interference of political leaders with the police administration. Similarly, it was not uncommon for state governments to supersede senior- most police officers by appointing their favourites as DGPs. This was a regular practice in most states. In Bihar and Uttar Pradesh, for example, religious and communal overtones also influ- enced decisions regarding the appoint- ment of police chiefs. Not just that. Some chief ministers were appointing and removing DGPs at regular intervals, or whenever they thought the incum- bent was not listening to their orders, including those relating to postings and transfers of SSPs and SHOs. State governments would not only pick up officers of their choice for the top police post, but there were several instances of chief ministers appointing DGPs from other cadres of the Indian Police Service. Two prominent instances were the appointment of KPS Gill as the DGP of Punjab, and later, SS Virk to the same position. Gill belonged to the Assam cadre, while Virk was from the Maharashtra cadre. Both had worked in Punjab during the days of militancy as part of other paramilitary forces, and were picked up for their acumen rather than merely for being political fav- ourites. No doubt, their appointments were resented by police officers of the cadres concerned. While there were exceptions like Gill and Virk, a major issue of resentment and concern was the appointment of weak police officers to the top job after superseding several deserving officers. This led to a PIL in the Supreme Court back in 2006. While deciding the PIL filed by two former DGPs Prakash Singh and NK Singh, the SC issued several directions, including setting up of a State Security Commission, to ensure that the government did not exercise unwarranted influence on the police. This historic verdict led to the imple- mentation of several police reforms. The apex court had said the appoint- ment of DGPs and police officers should be merit-based and transparent, and officers like DGPs and SSPs should have a minimum fixed tenure of two years. Some states, however, found a way to circumvent the orders. They began app- ointing acting DGPs and making them permanent just before the date of their superannuation (at the age of 60), to enable them to get the benefit of a fur- ther two-year tenure till the age of 62. After a clutch of petitions raised these inconsistencies, and some states filed pleas seeking modification of the order, the Supreme Court, on July 3 this year, passed a slew of directions on police reforms and chronicled the steps for appointment of regular DGPs. The Court directed that states will have to send a list of senior police offi- cers to the Union Public Service Commission at least three months prior to the retirement of the incumbent. The Commission will then prepare a panel of eligible candidates and intimate the states, who will immediately appoint one person from that panel. This was challenged by, among oth- ers, the governments of Punjab and Bihar, who pleaded that the earlier order needed to be modified as they had already passed laws to deal with the issue of appointment of DGPs. A bench comprising Chief Justice Ranjan Gogoi and Justice SK Kaul has now agreed to hear the pleas seeking modification of the earlier order. The Bihar government said it has already framed a comprehensive law dealing with various aspects, including the pro- cedure for appointment of DGPs in pur- suance of the 2006 apex court verdict. Former minister and senior lawyer P Chidambaram appeared for the Punjab government and took a similar stand. The West Bengal government also filed a similar plea. While keeping in abey- ance any rule or legislation framed by any of the states or the centre in conflict with its earlier directions, the Supreme Court has agreed to hear the pleas. The state governments are likely to take a strong stand on retaining powers over the appointment of key police posts, citing that law and order is a state subject, and they must have the power to appoint and remove top cops based on their performance. Twitter: @indialegalmedia Website: Contact: APILfiledintheSCin2006byformer DGPsPrakashSingh(top)andNKSingh (above)ledtotheimplementationofkey policereforms,tocheckunwarranted Stateinfluenceonthepolice.
  27. 27. States/ UP/ Murder of a Policeman 30 December 17, 2018 HATEVER the ulte- rior motives behind the recent Bulandshahr inci- dent which resulted in the unfortunate death of a police officer and the entire western UP belt becoming communally charged, it has once again raised ques- tions about the state police’s ability to maintain law and order. It also exposes the sheer helplessness of the police before the power-hungry adhocracy enforced by the government’s poor han- dling of law and order. This becomes clear if we review past events. A few days ago in an isolated incident in Shamli, a person was snatched from a Dial-100 police car and murdered. This week, Pratyush Kumar, a youth leader participating in a BJP Yuva Morcha, was murdered in broad daylight in Lucknow. The youth had tried reporting a threat to his life three days earlier but the police refused any protection, saying he seemed physically strong enough to defend himself. With the Yogi Adityanath govern- ment’s controversial stand on cow slau- ghter, non-state actors are taking the law into their own hands in the name of “gau raksha” and feeling free to clash with the police because they feel that the government is on their side. These inci- dents in isolation are extremely danger- ous, but their alarming frequency now seems even more lethal. In Bulandshahr itself, three such incidents, ranging from stone-pelting to a full-on tussle with the police in the name of cow slaughter, have taken place this year. On September 8, at an institute in Chela, a tussle took place with the police on discovery of a dead cow on the prem- ises. On July 21, stone-pelting broke out in Secunderabad in a similar matter. On May 10, Hindu groups charged against the police when they discovered a dead cow in a truck in Khurja. The way matters are unfolding, the violent frenzy bears an increasing resemblance to the 2013 communal riots in Muzaffarnagar which resulted in the death of 67 and left thousands homeless. The incident eventually led to polarisation, with the BJP winning 73 of The Killing Fields Thedastardlyactshowsthatnon-stateactorsaretakingthelawintotheirownhandsinthe nameof“gauraksha”andattackingthepoliceastheyfeelthegovernmentisontheirside By Govind Pant Raju in Lucknow W SORDID REMAINS Vehicles on fire at Buland- shahr; (above) SHO Subodh Kumar Singh who was slain Ifthecowswerebrought there,thenwhydidthe policenottakeconcreteaction asitwasclearthatamob wasbeingincited? Twitter
  28. 28. | INDIA LEGAL | December 17, 2018 31 the 80 seats in Uttar Pradesh. With the 2019 elections round the corner, another deep-rooted conspiracy cannot be ruled out. Both Bulandshahr and Muzaffar- nagar are communally charged cities. In both cases, one incident (eveteasing then, cow slaughter now) exploded into a Hindu-Muslim riot. The accused par- ties in Bulandshahr mostly belong to the Bajrang Dal and have continuously blamed Muslims who were gathered in the village to celebrate Ijitma (a three- day-long religious event). At a press conference here, a senior police official said that the Muslim gathering drew a crowd of 15 lakh. The figure sounds too big as the village is not large enough to accommodate such a huge number of people. It is being reported that local VHP and Bajrang Dal leaders went to the police station with their complaint of “cow slaughter”. While the police, headed then by SHO Subodh Kumar Singh (later slain), was in the process of registering an FIR, they were stone-pelted by the Bajrang Dal activists. Meanwhile, the carcasses of cows in a tractor-trolley were placed in the middle of the Bulandshahr- Delhi highway. The SHO was reportedly hit on the head by stones, resulting in severe injuries and blood loss. As the frenzy increased, the police decided to rush the SHO for medical treatment. They man- aged to get him into their vehicle and drive away. However, barely had they covered any distance that they were again intercepted by the crowd. What followed was extremely tragic—stones were pelted at them, followed by gun- shots which led to Kumar being killed. It was only after reinforcements arrived that the mob could be curbed. O m Prakash Singh, UP’s director general of police, said the force was investigating why cow carcasses were found three days before the anniversary of the Babri Masjid demolition. He also informed that two FIRs—one on cow slaughter and anoth- er on the violence—had been filed. Only after the top chain of command realised that the mob had taken the life of one of its own were local leaders booked. Among them was Yogesh Raj, a local Bajrang Dal leader. Seven Muslims were also among the 27 who were booked by the police. While the opposition has criticised the Yogi Adityanath government for attending a laser show in Gorakhpur when the violence broke out in Bulandshahr, there was considerable anger in the force against the killing of a member of their fraternity. The government’s response has been extremely lackadaisical with the chief minister busy assuaging the victim’s family with monetary compensation of `50 lakh. However, the CM’s response completely misses out on the preventive measures which need to be taken to avert such incidents in future. Nothing was done either to address the sheer helplessness of the police force which is repeatedly caught in such instances. Unless such measures are taken, inci- dents like Muzaffarnagar or Buland- shahr are likely to recur, disrupting the state’s harmony and that of the entire nation. On August 28 last year in Adoli vil- lage, Hindu fundamentalists started stone-pelting another community’s place of worship. Even after the incident, the police did not pay any heed or take precautions. This resulted in another such occurence. Now, Yogi Adityanath claims that the incident was a conspiracy and strict action will be taken. “The incident is part of a bigger conspiracy, and hence all those directly or indirectly related to cow slaughter should be arrested in a time-bound manner,” he said. The question that arises is that if there was any conspiracy to spoil the atmosphere of UP around December 6, then what were the state police and other security agencies doing? If the cows were brought there, then why did the police not take concrete action as it was clear that a mob was being incited? This also indicates the state’s inefficiency in implementing the rules of engagement with a violent mob, which has been reiterated by the Supreme Court. It should be evident to the state that just like cows’, human lives are also important. While the state government has been generous enough to allocate a corpus of `350 crore for gaushalas, neither cows nor human beings are spared the brutality of such events. In a state where it is becoming increasingly difficult to be near a cow (even a dead one), what hope can the common man have when even the police force is handicapped. Now,Yogi Adityanath claimsthatthe incidentwasa conspiracyand strictactionwill betaken. Twitter: @indialegalmedia Website: Contact:
  29. 29. States/ Kerala/ Piravom Church Dispute 32 December 17, 2018 N what appears to be a taunt to the LDF government in Kerala on its position that it is dedicated to com- plying with court orders in letter and spirit, the Kerala High Court came down heavily on the govern- ment, saying that it is selective in imple- menting court orders even when they are issued by the apex court. While considering a batch of petiti- ons seeking police assistance in imple- menting the Supreme Court’s judgment in a church case involving two rival fac- tions—Jacobite and Malankara Ortho- dox—a division bench comprising Justi- ces PR Ramachandra Menon and Devan Ramachandran said it had a prima facie suspicion that “the government appears to be implementing directions of courts selectively, to suit its interests”. Penning the judgment, Justice Ramachandran said that the issue was the implementation of a July 2017 ver- dict of the apex court, which decided a century-old dispute between the Jacob- ite and Orthodox factions in favour of the latter. The SC had upheld the latter’s claims over several prominent church assets. Responding to the petition, Advocate General CP Sudhakara Prasad submitted before the High Court that police intervention may lead to “blood- shed, loss of life by immolation or sui- cide or a complete breakdown of law and order”. Therefore, the political machinery was attempting to reach an out-of-court settlement between the fac- tions. The AG, however, expressed unequivocally that the judgment was final and binding. He submitted before the court that the government was exer- cising caution in view of the “peculiar” circumstances in the Piravom area. The division bench said: “We are complete- ly taken aback by the submissions of the learned Advocate General”, and added that it failed to under- stand how there could be an out-of-court set- tlement after the issue had been finally adjudicated by the apex court. The order further observed that: “We see that in certain other instances, the state has implemented judgments strongly by deploying a large number of police personnel and by imposing local restrictions under the Code of Criminal Procedure”. The remarks left little doubt that the Court was referring to the Marxist-led government’s over-enthusi- asm to implement the SC order that allowed entry of women of all age groups to the Sabarimala hill shrine. “We certainly fail to understand how in a case of relatively lesser magnitude as this, where admittedly at the best 200 to 400 people are involved, the state should shy away from its obligation to implement orders of the courts or why the police should helplessly say that they are incapable of executing directions and declarations of the Supreme Court,” the Court observed. The Court felt it was appropriate to give another chance to the AG to “think over” the submis- sions and posted the matter for further hearing on December 11, 2018. After the order was dictated, Senior Advocate P Ravindran, who appeared for one of the contesting church facti- Double Standards I PEACE BROKER? Syrian Orthodox Church Patriarch Ignatius Aphrem II (centre) met Kerala CM Pinarayi Vijayan (in white) regarding the church case TheMarxist-ledgovernmentisbeingrebukedforitsstrong pushtoimplementtheSabarimalaorderwhilechoosingto soft-pedalontheapexcourt’sorderinthePiravomchurchcase By NV Ravindranathan Nair in Thiruvananthapuram UNI
  30. 30. | INDIA LEGAL | December 17, 2018 33 ons, informed the Court that its prima facie observations may not be correct as the SC itself had permitted parties to enter into settlements, and the attempt of the government could not be seen as contrary to the top court’s directions. Responding to this submission, the Court said the statement filed by the government itself said that the settlem- ent attempts had been a failure despite the intervention of the chief minister. While the AG says the government should be given time for an out-of-court settlement, the leaders of the BJP and the Sabarimala Karma Samiti have been calling out the double standards of the government. Already, the AG has faced flak from the High Court for misleading the Court about the grave issues invol- ved in Sabarimala. While the AG want- ed to avoid an “unpleasant situation” in implementing the judgment in the Piravom church case, citing law and order issues, he has not even intimated the police about the court’s directions on partially lifting the ban orders at some points at Sabarimala and granting more concession on the restrictions imposed on the devotees. It may be noted that thousands of pilgrims are visiting the hill shrine on a daily basis during the pilgrim season and lakhs of women have spoken out against hasty implemen- tation of the court order. “Compared to the Piravom church case, the SC judgment on Sabarimala was of a declaratory nature and had put no timeframe to implement the order. But the government is being proactive in implementing the Sabarimala verdict only while opting for a negotiated out- of-court settlement in a case (Piravom case) in which the apex court has passed its final order,” pointed out some legal experts, such as BJP state president and noted lawyer PS Sreedharan Pillai. W hen the AG asked for two months’ time to arrive at an out-of-court settlement, Just- ice Ramachandran sought to know under what sanction of law the police and the state machinery are attempting an amicable settlement outside the court. “We fail to comprehend how any of these authorities can attempt a “set- tlement” when the views and declara- tions of law by the Honourable Supreme Court are completely beyond doubt; and in what manner they now seek latitude to permit them to implement these judgments solely with the consent of the warring factions,” the Court asked. When the AG said that any attempt to implement the court verdict may lead to law and order issues, the Court said: “It implies that the government has not made any attempt to implement the order. It’s obvious that these submissi- ons are more speculative and conjectur- al in nature, without even an attempt being made to implement the directions, particularly when the learned Advocate General himself says that the judgments can be implemented through police ass- istance only if so ordered by this court.” “The conspicuous failure or refusal of the authorities in doing so makes the intentions of the authorities question- able and impels us to a suspicion, at least, prima facie, that the government appears to be implementing directions of courts selectively, suiting its interests.” The Court’s observations are strong enough to shame anyone, but obviously not the hypocrites in the CPI(M). Twitter: @indialegalmedia Website: Contact: IGNITING RELIGIOUS FURY Both the St Mary’s Church (left) in Piravom and the Sabarimala temple (below) have seen violent clashes in the recent past UNI
  31. 31. States/ J&K/ Sexual Harassment at Work 34 December 17, 2018 TUNG into action by the #MeToo discourse, the J&K government has done something truly remark- able. It has gone one up on the Indian Penal Code (IPC), the criminal code applicable to the rest of the country, by seeking to legally define “sextortion”, in a bold search for a remedy to the menace of sexual harassment at work. According to J&K’s Law Department, “any person being in a position of autho- rity or a fiduciary relationship, or a pub- lic servant, who abuses such position or fiduciary relationship to employ physical or non-physical form of coercion to extort, request, or demand sexual favo- urs from any woman in exchange of some benefits or favours that such per- son is empowered to grant or withhold” shall be guilty of sextortion. The IPC does not define sextortion, although it is the foundation on which the Ranbir Penal Code (RPC), the crimi- nal code applicable to J&K, is based. Arguments that the IPC be amended to include a clear description of this evil have been heard off and on, in the wake of the #MeToo wave. A clear definition facilitates thinking, understanding and communication, which is helpful in the evaluation of a law. The Law Department has invested sextortion with words and meaning in one of the two draft Bills that it has released in the public domain for elicit- ing views. Both the Bills propose amendments to plug the loopholes, which the #MeToo wave has exposed in the RPC, the Code of Criminal Proce- dure (CrPC), the Evidence Act and the Prevention of Corruption Act. The Criminal Laws (Amendment) Bill, 2018, seeks to introduce a new Sec- tion 354E in the RPC. Besides explain- ing sextortion, the new section provides for “rigorous imprisonment for a term which shall not be less than three years but may extend to five years and with fine” on a person found guilty of this crime. It defines “sexual favour” as “any kind of unwanted sexual activity ranging from sexually suggestive conduct, sexu- ally explicit actions such as touching, exposure of private body parts to sexual intercourse including exposure over the electronic mode of communication”. It categorically asserts that: “It shall be no defence that sexual favour was derived with the consent of the victim.” The defi- nition of rape has also been widened in the present law to leave little doubt that the act will amount to rape even if a woman consents “in exchange for exer- cising or misusing authority”. Sexual favours, as elaborated in Section 354E, have also been addressed in the other proposed legislation—the Prevention of Corruption (Amendment) Bill, 2018—which seeks to make a pub- lic servant who demands or requests sexual favours liable for “misconduct”, and punish him with imprisonment for a term not less than one year but which may extend to seven years with a fine. Corresponding amendments have been proposed in the CrPC and the Evidence Act as well. The responses Inamovetoprotectwomeninthelightofthe#MeToomovement,thestategovernmentseeksto defineandcriminalisesexualharassmentthroughamendmentstoahostoflegislation By Pushp Saraf S No Sextortion, Please Photos: UNI NOTHING WAS SAID OPENLY, the signals were clear. Those in the know of things say that Rahul might not be know of things say that Rahul might not be EQUAL STAKEHOLDERS A group of women doing traditional Kashmiri embroidery on the outskirts of Srinagar