India Legal 17 July 2017

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HE final Supreme Court judgment
which sent former high court judge
CS Karnan to jail for contempt of court
was not without considerable hand-
wringing and introspection by the apex
court justices who penned the 90-page magnum
opus. This was partly an acknowledgement of
the public criticism of some of the glitches that
plague the judicial system—particularly the tho-
rny issue of weeding out the black sheep from
the family.
Several months ago, when this errant judge
was openly and brazenly defying and mocking
the Supreme Court, an India Legal cover story
entitled “Judges In The Dock” took the subject
head on. It said in its introductory line: “The
shocking case of Justice Karnan and others
before him reiterates the need to evolve a mech-
anism that makes those who preside over our
courts accountable.”
We wrote that a section of the public believes
that complaints of misconduct or corruption
against the higher judiciary are being ignored
and no adverse consequences are evident. The
Supreme Court has an in-house mechanism
to deal with complaints, but that system
lacks transparency. Only in selective
cases is the judge involved trans-
ferred. The executive is equally to
blame in handling complaints
against the judges.
The article emphasised that
laxity on the part of the judiciary and
executive encourages people like Justice
Karnan to defy the Supreme Court: “His
case has clearly shown that the executive
needs to play a more pro-active and effec-
tive role in conducting enquiries into com-
plaints against judges and initiate prompt
legal action as laid down in the constitu-
tion. More than anything, the Justice Karnan
episode exposes the need to have a law that gov-
erns accountability of judges.”
Section 16(1) of the Contempt of Court Act
also does not express clearly its scope and ambit
to include high court judges as well. Therefore,
the Supreme Court of India had to find ways by
interpreting the constitution and Contempt of
Court Act, 1971, to deal with the present issue.
A comprehensive bill to oversee the conduct
of judges and quick action against offenders is
clearly needed. The Judicial Standards and
Accountability Bill, 2010, goes some way to-
wards resolving the issue of errant judges. It
attempts to lay down enforceable standards of
conduct for judges and requires them to declare
details of assets, including of their family mem-
bers. The bill was introduced in parliament after
being stalled for a long time and now, a commit-
tee has demanded some changes.
W
hen the seven-judge Supreme Court
Bench released its detailed decision last
week, Chief Justice JS Khehar sounded
wistful, even a little sad. His opening line was:
“The task at our hands is unpleasant. It concerns
actions of a Judge of a High Court.” Among the
very least of Karnan’s transgressions who had
defied just about every judicial canon of Indian
jurisprudence was this defiant letter to the
Supreme Court—released to the public— after it
had relieved him of his administrative duties in
the wake of unproven allegations hurled by him
against dozens of sitting and retired judges of
the higher benches:
1. “My Lords, you have constituted an unconsti-
tutional Bench after breaking the Indian Consti-
tutional Law and passed a Suo-Motu contempt
order against me in Suo-Motu Contempt Peti-
tion no. 1 of 2017 wherein you have restrained
KARNAN VERDICT:
A CLARION CALL
Inderjit Badhwar
Letter from the Editor
T
4 July 17, 2017

my judicial and administrative
work, the said order has been
passed with malafide intention in
order to harass a Dalit Judge
(myself).
2. “The factual position of the
case is that I have levelled a com-
plaint dated 23.1.2017, against
20 Judges for dishonesty before
the Hon’ble Prime Minister of
India which is pending enquiry.
Under these circumstances, the
above mentioned Hon’ble Judges
have issued a Suo-Motu con-
tempt order in order to protect
the corrupt Judges. As such the
above mentioned Hon’ble Judges
have also colluded with them and
secured their support by way of
operating judicial power out of
cause of action, out of jurisdic-
tion, out of provision and consti-
tuted a wrong forum.
3. “Judge means a dignified per-
son of Law who has to hear both
sides of the case and pass order
in accordance with law. In the
instant case the Hon’ble Judges have defended
the case on behalf of the 20 erring Judges.
Therefore, the Hon’ble seven Judges and other
20 Judges as mentioned are the Opposite par-
ties/respondents and myself
a complainant. As such the Hon’ble seven
Judges passed a Suo-Motu order which is illegal
and improper. Hence I request you to cancel
the unconstitutional Bench and restore my nor-
mal work.
4. “However, the Hon’ble seven Judges have pre-
vented me in carrying out my judicial and
administrative work from 8.2.2017 until now.
Therefore, I am calling up on all seven Judges to
pay compensation, a sum of Rs.14 Crores
(Rupees fourteen crores only) as compensation
since you have disturbed my mind and my nor-
mal life, besides you have insulted me in the
general public consisting of a population of 120
crores in India due to lack of legal knowledge.
Now all seven Judges shall pay a part of the
compensation within a period of 7 days from the
date of receipt of this order, failing which on the
same stand of yours (same footing), I will res-
train judicial and administrative work of yours.
5. “This is for your information.”
I
nterestingly, even as the Supreme Court
ruled that it was left with no other choice
but to convict and sentence Karnan to im-
prisonment, it did not blindly assert any concept
of impunity from scrutiny and accountability
and went through considerable pains to discuss
the issue of contempt threadbare and also to
question whether it could be invoked as a tool
for silencing criticism.
“The main proceeding might or might not
have ended in finding the guilt of the contemnor
of scandalising the judiciary,” the judges wrote.
“(But) the contemnor aborted all attempts to
judicially resolve the charge of commission of
contempt brought against him by the initial
notice of the Court dated 08.02.2017. Rather,
he chose to engage in a tirade challenging the
COURTING
CONTROVERSY
Justice CS Karnan
was brazen in
defying sitting
judges of even the
apex court
| INDIA LEGAL | July 17, 2017 5

Letter from the Editor
very jurisdiction of this Court to enquire into an
allegation of contempt against a sitting Judge of
a High Court.”
The judgment cited some enlightened words
from Lalit Kalita & Others, a land-
mark free speech versus contempt
case involving media criticism of
the judiciary: “Judiciary is not
over-sensitive to criticism; in
fact, bona fide criticism is
welcome, perhaps, because
it opens the doors to self-
introspection. Judges are
not infallible; they are
humans and they often
err, though, inadver-
tently and because of
their individual per-
ceptions. In such a
situation, fair crit-
icism of the
viewpoint
expressed in a
judicial pro-
nouncement
or even of
other forms of judi-
cial conduct, is consistent
with public interest and public good
that Judges are committed to serve and
uphold. The system of administration of justice,
therefore, would receive due impetus from a
realization amongst Judges that they can or have
actually erred in their judgments; another per-
spective, a new dimension or insight must,
therefore, always be welcome. Such a realization
which would really enhance the majesty of the
Rule of Law, will only be possible if the doors of
self-assessment, in the light of the opinions of
others, are kept open by Judges.
“But when should silence cease to remain an
option? Where is the line to be drawn? A con-
temptuous action is punishable on the touch-
stone of being a wrong to the public as distin-
guished from the harm caused to the individual
Judge. Public confidence in the judicial system is
indispensable. Its erosion is fatal. Of course,
Judges by their own conduct, action and per-
formance of duties must earn and enjoy the pub-
lic confidence and not by the application of the
rule of contempt. Criticism could be of the
underlying principle of a judicial verdict or its
rationale or reasoning and even its correctness.
Criticism could be of the conduct of an individ-
ual Judge or a group of Judges. Whichever man-
ner the criticism is made it must be dignified
in language and content because crude expres-
sions or manifestations are more capable of
identification of the alleged wrong with the
system as a whole. Motives, personal interest,
bias, pre-disposition etc. cannot be permitted to
be attributed as being responsible for the judicial
verdict, unless, of course, the same can be estab-
lished as an existing fact. It is the above category
of acts or publications that would fall within
the prohibited degree warranting action in con-
tempt law.”
J
ustices J Chelameswar and Ranjan Gogoi,
in their separate judgment, which agreed
with the other five judges that Karnan
should be convicted, went several steps ahead
and made a plea for reforming the system. They
wrote that this case extended beyond the imme-
diate problem because it highlighted the “need
to revisit the process of selection and appoint-
ment of judges to the constitutional courts, for
that matter any member of the judiciary at all
levels; and the need to set up appropriate legal
regime to deal with situations where the con-
duct of a Judge of a constitutional court requires
corrective measures—other than impeachment—
to be taken.”
Whentheseven-judge
SupremeCourtBench
releaseditsdetailed
decision,ChiefJustice
JSKheharsounded
wistful,evenalittle
sad.Hisopeningline
was:“Thetaskatour
handsisunpleasant.It
concernsactionsofa
JudgeofaHighCourt.”
6 July 17, 2017

They added: “The conduct of the contemnor
ever since his elevation to the bench has been con-
troversial. Obviously, there is a failure to make an
assessment of the personality of the contemnor at
the time of recommending his name for elevation.
Our purpose is not to point fingers to individuals
who were responsible for recommendation but only
to highlight the system’s failure of not providing an
appropriate procedure for making such an assess-
ment. What appropriate mechanism would be suit-
able for assessing the personality of the candidate
who is being considered for appointment to be a
member of a constitutional court is a matter which
is to be identified after an appropriate debate by all
the concerned—the Bar, the Bench, the State and
Civil Society. But the need appears to be unques-
tionable.
“We are only sad to point out that apart from
the embarrassment that this entire episode has
caused to the Indian Judiciary, there are various
other instances (mercifully which are less known to
the public) of conduct of some of the members of
the judiciary which certainly would cause some
embarrassment to the system.
“The framers of the Constitution were people of
a great sense of patriotism and maturity, men and
women who maintained high standards of civic
morality. Obviously, they expected those who are to
be chosen for the higher constitutional offices or to
be appointed to public service would be chosen by
assessing their suitability (efficiency and integrity)
by employing appropriate standards. The makers
of the Constitution were conscious of the fact that
ascendance to higher offices need not necessarily
always guarantee rectitude and the incumbent of
any constitutional office could resort to behaviour
inconsistent with the nature of the office and stan-
dards of conduct expected. Thereafter, provisions
were made in the Constitution for impeachment of
holders of various constitutional offices starting
from the President of India.
“When it came to the members of the constitu-
tional courts equally, it was visualised that there
can be such occasions. But the standards and pro-
cedure for impeachment of judges are much more
rigorous for reasons obvious. There can be devia-
tions in the conduct of the holders of the offices of
constitutional courts which do not strictly call for
impeachment of the individual or such impeach-
ment is not feasible. Surely there must be other
ways of dealing with such cases. The text of the
Constitution is silent in this regard. May be it is
time for the nation to debate this issue.”
Every Indian who believes in the Rule of Law
should take these words to heart. It is a clarion call
for reform.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
JusticesJChelameswar(L)
andRanjanGogoi(R) ,intheir
separatejudgment,went
severalstepsaheadandmadea
pleaforreformingthesystem.
Theywrotethatthiscase
highlightedthe“needtorevisit
theprocessofselectionand
appointmentofjudgestothe
constitutionalcourts,forthat
matteranymemberofthe
judiciaryatalllevels....”

ContentsVOLUME. X ISSUE. 34
JULY17,2017
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Technical Executive Anubhav Tyagi
8 July 17, 2017
State as Landgrabber
A PIL has questioned the unscientific acquiring of land for SEZs in seven states and sought
the return of unutilized land to the farmers
20
COURTS
The Aadhaar Time Bomb
The government’s move to link citizens’ unique identification numbers to their respective
bank accounts leaves them vulnerable as it can invite massive cyber fraud
14
LEAD
Paid but Undeclared
The Election Commission has disqualified MP minister Narottam Mishra for not coming
clean on his poll expenses, especially those related to favourable media coverage
22

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside .........................10
Delhi Durbar ...................11
Courts.............................12
National Briefs .........25, 42
Media Watch ..................49
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Systemic Failure
A petition has asked for a more stringent law against lynching when
existing ones are not being implemented by enforcing agencies
30
LEGALEYE
Israel’s Green
Lessons
With 26 centres of excellence helping
Indian farmers learn micro-irrigation tech-
niques, strengthening ties between the
two countries offers hope for cultivators
46
Robbing the Aravallis
The plan of some government officials to deforest 52 acres to
Bharti Realty will set a dangerous legal precedent in the region
32
ENVIRONMENT
Play Safe with China
Given our neighbour’s superior military might and border infrastructure, India
would do well to avoid any escalation in the current face-off
Keep It in the Family
Nepotism rules the roost when it comes to appointing law officers by state
governments with Punjab taking this generosity to an extreme level
40
STATES
COLUMN
AGRICULTURE
Web of Inconveniences
As the top court opens after the summer recess, advocates and
judges must contend with technical glitches and server faults
24
The End Game?
The police are piecing together evidence against Kerala superstar Dileep for
complicity in an actress’ “rape”. But questions still remain if he will be charged
36
No Tax on Tax
Teething troubles notwithstanding, the GST regime is expected to
bring down prices by minimising cascading taxes
26
ECONOMY
44

10 July 17, 2017
“
RINGSIDE
Today the Governor told me
a lot of things. I am feeling insulted.
The Governor’s is a constitutional
post. I have come to power through
the mandate of the people….
I am not in power at the mercy of the
Governor. He is speaking like a
block president of the BJP.
—West Bengal Chief Minister
Mamata Banerjee, in The Hindu
The Tryst with Destiny was a
defining moment in the history
of this ancient country. Nothing
can be compared with that
midnight hour. GST is a partial
reform of indirect taxes…. It is
simply a stop on a long journey.
There was no need for a mid-
night celebration.
—Former Finance Minister
P Chidambaram, in FirstPost
The way you are
expanding graves, there
will be no place to live.
There is no place for
people to live. There is
space only for graves.
Please help the city
to live.
—A Delhi High Court
bench of Acting Chief
Justice Gita Mittal and
Justice C Hari Shankar,
to the Delhi Waqf Board
Social media has speeded up
our decision making but faster
is not necessarily better.
—University of San Diego's law
and finance professor Frank
Partnoy, in Outlook
I agree that everything that’s
happening in India today is
outrageous, ugly, cruel and cer-
tainly #NotInMyName…. But,
when I read fiction, I want to
read fiction, not a swirling bowl
of newspaper headlines and
deeply personal polemic topped
with lashings of (totally gor-
geous) literary flourishes.
—Author Anuja Chauhan, on The
Ministry of Utmost Happiness,
in The Week
India has a weak PM.
—Congress vice president
Rahul Gandhi, on the govern-
ment not protesting against the
US referring to Kashmir as
“Indian-administered Kashmir”,
on Twitter
The leadership and the party
have kept memories of past
“humiliations” at the hand of
foreign powers... alive in the
minds of the population, and
this in turn triggers hyper-
nationalistic reactions that
make it all the more difficult to
work for reasonable and fair
solutions to border problems
with neighbours.
—Former Foreign Secretary
Nirupama Rao, on China’s
belligerent stand in internatio-
nal relations, in The Wire
Dear Mr Modi, I
love you. Please
continue to love
me forever.
—Moshe
Holtzberg, whose
parents were
killed in 26/11
attacks, during
his meeting with
Narendra Modi
during the latter’s
Israel visit

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
FROSTY PROS
The recent vote by a majority of
trustees of the capital’s presti-
gious India International Centre
(IIC) to replace the current presi-
dent Soli Sorabjee with NN Vohra
seemed bizarre. Vohra is posted
as governor of J&K and his
tenure still has two years to go.
The buzz in bureaucratic circles,
however, is that Vohra wants to
quit and move back to Delhi (he
was IIC president some years
ago). Vohra, it seems, is frustrat-
ed with his role as interlocutor
between the centre and the state
government which are in dis-
agreement over how to stem the
surge in militancy and civilian
support. The bureaucratic buzz is
that the centre is looking to
reward outgoing Home Secretary
Rajiv Mehrishi who is retiring.
There is the likelihood of him
replacing Vohra—Mehrishi has
been visiting Srinagar regularly
and was there last week, just
before handing over charge in
North Block.
CHANGE IN THE
VALLEY?
Most people who work in the PMO
expand their horizons, literally, as is the
case with the prime minister’s personal
yoga teacher, HR Nagendra. A mechani-
cal engineer-turned-yoga innovator,
Nagendra now sits on several official
committees, apart from those related to
yoga-related events here and abroad (he
presided over the International Yoga cele-
brations in New York last year) under the
Ayush banner. He is now actively involved
in committees tasked with selecting candi-
dates for educational institutions, includ-
ing chairman of the University Grants
Commission. His original brief was to
introduce yoga in universities but now
he clearly plays a larger role. His expand-
ing influence redefines the meaning of
Power Yoga.
Minister of Power, Piyush Goyal is a man
of suave statistics. In March this year, he
proudly declared that 71 percent of the
18,452 villages across the country without
electricity had been electrified and he was
well on his way to ensure that power lines
reach all villages by 2018. He even provid-
ed data. As many as 13,028 had been
provided power, he claimed. But last fort-
night, the progress report on his ministry
by NITI Aayog had questioned his record.
It said that while the number of villages
electrified was accurate, the minister had
not added the caveat that a large number
of households in them still have no power
connection. “An inherent challenge in the
process is ensuring the coverage of
households as opposed to only villages,”
says the NITI Aayog report. It noted that
impressive electrification rates with poor
household electrification is misleading
and gives the false impression that the
rural pockets covered have been fully pro-
vided with power connections. The devil,
as many in the power ministry will tell you,
is in the details.
MISLEADING STATS
POWER YOGA
The Army is not known to
share too much information
with the press—least of all its
PR department. So what was
the need for the recent circu-
lar that directed all PROs not
to go beyond their brief and
only read out approved
announcements at press
briefings and not answer any
questions? According to
sources, an IB report to the
Defence Ministry warning it
against PROs becoming
friendly with certain journalists
has prompted this action. It
appears rather peculiar since
there have been no major
exposes in recent times on
the armed forces in the
media. In any case, PROs are
not known to make any open
revelations or share exclusive
information at press confer-
ences. If anything, the latest
directive has only added frost
to interactions with the media
and made them less informal.

The apex court observed that shops sell-
ing liquor on roads under city areas but
still within 500 metres from highways was
not a violation of its order.
The Court had banned selling of liquor
within 500 metres of state and national
highways. It had, however, amen-
ded it, bringing down the distance
to 220 metres for cities, towns
and municipalities with a maxi-
mum population of 20,000.
The Court observed that its
liquor ban order was to ensure
that drivers taking to high-speed
highways can’t get alcohol.
“Roads within the city are very
different from those outside the
city,” it said and pointed out that
city roads do not witness “fast moving
traffic”. The Court was hearing a challenge
from an NGO, Arrive Safe Society, in
Chandigarh against the Punjab and
Haryana High Court’s order. The High
Court had dismissed its objection to the
Chandigarh administration’s move to deno-
tify highways passing through the city.
The apex court will, however, examine
the petition again on July 11.
Those who could not exchange `500
and `1,000 notes by December 30,
2016, but had valid reasons must be given
yet another chance by the government, the
Supreme Court insisted. Anybody’s hard-
earned money can’t be allowed to go
waste, and the issue is serious, the Court
observed.
The PM had assured the nation on
November 8 that those with authentic
problems could deposit their old currency
by March 31, 2017, at the RBI. But the
centre later reneged and allowed only peo-
ple staying outside the country and the
armed forces to do so.
Several petitions had come up before
the apex court blaming the centre for shift-
ing its stand and seeking another opportu-
nity, but the Court zeroed in only on 10,
which it found worth taking up. It was in
this regard that it had asked the centre to
reconsider.
When the centre showed its
reluctance, citing chances of
misuse, the Court wanted to
know the reason behind
such intransigence. On
sensing that the Court could
issue an order, the counsel for
the centre sought time for
instructions and put the onus
on RBI. The Court then asked
both the centre and RBI to file
responses within two weeks.
SC allows
another MTP
Courts
12 July 17, 2017
Allow old
currency
exchange
No liquor ban for
city roads
In yet another case, the
Supreme Court recently
allowed a woman from
Kolkata to undergo abor-
tion of her 26-week fetus
immediately as a “special
case”. The Court con-
curred with the medical
report from a board of
SSKM Hospital, Kolkata,
(set up by the Court to
examine her condition),
which advised medical
termination of pregnancy
(MTP) on the ground that
if the child is allowed to
take birth, it may not live
long due to a congenital
defect. The mother may
also undergo “mental inju-
ry” if MTP is not done, the
report said.
As per law, MTP is not
allowed beyond 20 weeks.
Though the amendments
proposed in the Medical
Termination of Pregnancy
Act, 1971, in 2014 have
increased the limit to 24
weeks, the cabinet is yet to
give its assent. The apex
court has allowed MTP in
many cases as an excep-
tion in the past one year.
The Court in this case
observed that it is the
personal liberty of the
woman to take a decision
whether to continue with
her pregnancy.

Acclaimed author and social activist Arundhati
Roy got relief from the Supreme Court on a
criminal contempt case against her. The apex
court stayed the contempt proceedings at the
Nagpur bench of the Bombay High Court.
Arundhati had incurred the wrath of the High
Court for expressing strong views in Outlook
against the arrest of Delhi University professor
GN Saibaba for his Maoist links. A contempt
notice was slapped on her in December 2015.
The High Court felt that the tone and tenor of the
article was nothing short of “scurrilous”. Roy
herself had objected to the notice.
The top court had earlier declined to stay the
contempt order.
After Roy refused to apologise for her com-
ments in the article, the Court listed her objec-
tion for final hearing.
Proceedingsagainst
Arundhatistayed
The Maharashtra govern-
ment received a warning
from the Supreme Court that if
all encroachments on the 980
sq mt area near the Haji Ali
Dargah were not removed by
Brihanmumbai Municipal Corpora-
tion (BMC), the consequences would
be grave. The shrine is located in
south Mumbai.
BMC was given a deadline of two
weeks, starting July 3, to complete
the task. The Court took note of the
fact that the Dargah trust had forma-
lly given its consent to do away with
the said encroachments.
The Court’s stringent order came
after the trust said that it could not
remove encroachments from the 500
sq mt area. As per the Court’s order,
the area to be cleared includes the
approach road to the shrine as well.
It also directed the BMC to “beautify
the area”. The request from some
encroachers for more time was
dismissed.
The Court had earlier made it
clear that only the mosque would
remain and the rest of the area sho-
uld be cleared of encroachments. The
Bombay High Court had ruled that a
task force be set up to accomplish
the task.
After hearing strong arguments
from the counsels representing
social activist Teesta Setalvad and her
husband Javed Anand, and the
Gujarat government in a corruption
case, the apex court reserved its
order. The couple had been accused
of siphoning funds given to their
NGOs for rehabilitating the 2002
Gujarat riot victims. Their personal
accounts had been frozen and no
relief was provided to them by the
Gujarat High Court. The couple had
then approached the apex court.
Additional Solicitor General Tushar
Mehta, representing Gujarat, went all
out to prove—by submitting vouch-
ers—that Setalvad and her husband
had misused funds (including using it
to buy liquor and dine in expensive
restaurants), and pleaded for her cus-
todial interrogation. But Kapil Sibal,
appearing for Setalvad, argued that
the money to the NGOs came from
Ford Foundation, and not the state
government. The Foundation had
passed all expenses (including liquor
and food) and did not file any com-
plaint, he contended. He also claimed
that the vouchers presented by Mehta
were only given by his client. He alle-
ged that the state government was
targeting her as she was working for
justice and peace.
A resident of Gulbarg Society in
Gujarat had alleged that the couple
was misusing funds and the Gujarat
Police had booked the couple for
cheating, breach of trust and misap-
propriation of funds.
Judgment on
Setalvad reserved
Remove
encroachments
from Haji Ali
The apex court agreed with a petitioner that
EVMs with voter verifiable paper audit trail
(VVPAT) could be employed in the Gujarat ass-
embly elections, slated for December. It obser-
ved that the step will be significant in enhancing
transparency in polls.
The counsels for the petitioner informed the
Court that in pursuant to the centre releasing
funds, the Election Commission had obtained
more than 80,000 such EVMs. The Gujarat polls
required only 70,000 machines, they pleaded.
The Commission argued that not all
machines had been tested to ensure they were
flawless and issues may crop up if used. It also
contended that the staff must be trained to han-
dle them. But the Court felt that the EC was try-
ing to be difficult and asked it to file an affidavit
in four weeks.
EmployEVMswithVVATfor
Gujaratpolls
— Compiled by Prabir Biswas

Lead/ UID Programme
S India sitting on an Aadhaar crime
bomb that will soon begin ticking?
Imagine a scenario where money is
transferred from your account into
another or vice versa by an unkno-
wn entity without your knowledge;
when your fingerprint is placed at a
scene of a serious crime to implicate
you; when criminals track virtually all
your activities and plot their next move;
when foreign funds are transferred into
your bank with devious intent and you
find your account blocked pending
investigations into your mysterious
source of foreign monies…. All this and
much more is very much in the realm
of possibility thanks to your 12-digit
Aadhaar number.
And to speed us on the risk-prone
biometric highway is the June 1,
2017 notification (No2/F. No P.
12011/11/2016-Es Cell-DOR) of the
Department of Revenue under the
Finance Ministry which makes it com-
pulsory for account holders to link their
accounts with their PAN and Aadhaar
I
Thegovernment’sdecisiontolinkthese
vitalnumberstobankaccountscould
triggerawaveofeconomicoffences.It
istimethisdecisionthatthreatensthe
bankingsystemisreviewed
By Ajith Pillai
Aadhaar
Crime
Bomb
14 July 17, 2017
Illustration: Anthony Lawrence

A copy of a fingerprint is all that will
be required to effect transfers or pay-
ments into another account using the
Bhim app or a point of sale (POS)
machine which requires only a finger-
print as proof and bypasses the need to
swipe a debit or credit card. The Bhim
app, introduced to facilitate cashless
transfers by the unlettered, necessitated
the need to link UID numbers and data
to banks. Now the government has
mandated that all accounts holders
must also be linked through Aadhaar.
This gives a different dimension to
data theft as it can facilitate serious
financial fraud. It is no longer just about
big corporations mining data to size up
your credit rating or spending patterns
to focus and target their marketing
efforts. Neither is it about the CIA keep-
ing a tab on India’s demographics. What
we are talking about is an invasion of
numbers before December 31. 2017.
Companies too will have to submit the
same identification numbers to the
banks, of their board members or those
who have been authorised to transact
business on their behalf.
M
any cyber security experts are
of the view that the Unique
Identification (UID) pro-
gramme, launched in 2010, has evolved
dangerously and will become a veritable
password for those indulging in a range
of cyber-related crimes. At the recei-
ving end will be ordinary Indians who
now have to furnish the number for vir-
tually every activity of their daily life—
from buying a cellphone to opening a
bank account.
To them, and to a sizeable section in
the police, cyber-crime is an alien con-
cept and the government’s reluctance to
accept glitches in the UID programme
has not helped. But despite all the app-
rehensions and a clutch of pending peti-
tions in the Supreme Court relating to
the validity of the scheme and privacy
concerns, the government has been
doggedly pushing ahead with ushering
in a biometric revolution of the kind the
world has hitherto not seen.
Initially meant to provide an identity
for the poor and to ensure that there are
no leakages in money transfers under
various welfare schemes, the Aadhaar
net has been widened to encompass vir-
tually every aspect of life. School admis-
sions, mid-day meal schemes, driving
licences, pensions, income tax payments,
rail and air tickets and soon, opening a
bank account or maintaining one, will
require the person’s Aadhaar number.
And each time one shares a number
with a new agency/service platform, the
number of points from which personal
data can be accessed by undesirable ele-
ments multiplies. And once the data
thief gains access to the data, which
includes facial image, image of the iris
and fingerprints, he can access the res-
pective bank account because it will be
linked to the Aadhaar card.
ALL-PERVASIVE: Access to basic services
like health and education will also be
determined by biometric scans

privacy which may come with a huge
criminal quotient and could impact
every citizen.
The dividends from data mining are
so huge and the implications so varied
that this has already begun. It will not
be long before the crimes start. Here are
some pointers which also reveal how
data is not secure with the government:
On February15, 2017, the Unique
Identification Authority of India
(UIDAI) which is mandated to imple-
ment the Aadhaar scheme reportedly
filed cases against employees of Axis
Bank, Suvidha Infoserve and e-Mudhra
for attempting unauthorised authentica-
tion and impersonation by illegally stor-
ing Aadhaar biometrics. The security
breach came to light after 397 fake bio-
metric transactions were carried out in
five days of February.
On February 18, the Hindi news daily
Dainik Bhaskar reported the arrest of
six salespersons of telecommunications
service provider Reliance Jio in Madhya
Pradesh for selling SIM cards at inflated
prices by using the Aadhaar data and
fingerprint scans of other customers.
In April this year, the Aadhaar details
of one lakh pensioners in Jharkhand
who had seeded their UID numbers to
bank accounts was freely available on
the website of the Jharkhand Directo-
rate of Social Security. A few days later,
a leading national daily found that
“secured” data was available on the web-
sites of a scholarship database in UP;
the PDS website of the Chandigarh
administration; a pensioners’ listing in
Kerala and the Swachh Bharat Mission.
Lead/ UID Programme
I
n 2010-2012, Unique Identification
Authority of India (UIDAI) awarded
contracts for biometric profiling to
three US-based Biometric Solution
Providers (BSPs). These were—L-1
Identity Solutions, Morpho-Safran, and
Accenture Services Pvt. Ltd. All three
reportedly have business contracts with
US, British and French intelligence agen-
cies. There are also reports in the inter-
national media of former intelligence
operatives in the employment of these
companies and their subsidiaries.
The companies, as per the contract,
were given `20 crore each by UIDAI for
their services. The charges paid per card
was `2.75.
This money went to foreign compa-
nies. The UID programme was not an
indigenous effort as claimed by Nandan
Nilekani, chairman of the UIDAI, when it
was launched and the contracts with the
foreign companies were signed.
The UIDAI has often made state-
ments that the data collected is encrypt-
ed and inaccessible to the BSPs. But the
TheForeignHand
SMALL BEGINNING: Then PM Manmohan
Singh and Congress leader Sonia Gandhi
launching the Aadhaar number in Nandurbar,
Maharashtra, in 2010
16 July 17, 2017
PIB

A report released in May 2017 by the
Centre for Internet and Society, a
Bangalore-based organisation looking at
multi-disciplinary research and advoca-
cy in internet use, reveals that in the
past few months, data of 13.6 lakh citi-
zens was leaked from four major gov-
ernment data bases, including the por-
tals of NREGA and National Social
Assistance Programme.
A note generated on March 25 by an
official of the Ministry of Electronics
and Information Technology accessed by
the New Indian Express, confirmed that
biometric data was not secure. “There
have been instances wherein personal
identity or information of residents,
including Aadhaar number and demo-
graphic information and other sensitive
personal data such as bank account
details etc. collected by various
Ministries/Departments... has been
reportedly published online and is acc-
essible through an easy online search,”
said the note displayed on the front page
of the newspaper. The same ministry on
March 5 had issued a statement that the
Aadhaar data was absolutely secure.
T
he financial misuse of data has
not been lost on experts. Sunil
Abraham, executive director of
CIS, has been quoted as saying: “Bio-
metrics is an inappropriate technology
for financial services. Linking Aadh-
aar, which has your biometric data,
with bank accounts makes you a lot
more vulnerable to financial frauds
than before. Your fingerprint can easily
be collected at a restaurant or any other
public place and can be used to steal
your identity and commit frauds. The
government needs to rethink its use for
Aadhaar as it will impact over a billion
people.”
contract with the three companies,
accessed by an RTI activist, shows that
they had access to unencrypted biomet-
ric data. As part of their contract, these
BSPs had to weed out duplicate appli-
cations. This involved comparing the
biometric data of all applicants which
necessitated access to it.
It is not known whether the mass of
biometric data was copied and stored
abroad or sold. But given the demand
for data, the possibility of this having
happened cannot be ruled out. Also,
one cannot say with certainty that it will
not be put to use in future by intelligen-
ce agencies or exploited by corporates.
Clause 4.1.1 of Annexure ‘E’ of the
contract admits that demographic data
is inaccurate. Despite RTI requests,
UIDAI has refused to provide Annexures
‘I’, ‘J’ and ‘K’ of its contracts with Bio-
metric Solution Providers. It has even
refused to comply with the orders to do
so by the Chief Information Commi-
ssioner, citing security reasons. These
annexures give the technical bids of
the contractors which would specify the
limitations.
“Biometricsisaninappro-
priatetechnologyforfinan-
cialservices.Linking
Aadhaar,whichhasyour
biometricdata,withbank
accountsmakesyoualot
morevulnerabletofinancial
fraudsthanbefore.”
—SunilAbraham,
executivedirectorofCentre
forInternetSociety
“Justimagineatrickster
operatingfromoutsideIndia
withleakedAadhaardatabase
andhundredsofPOSmachi-
neswiththebiometricpay-
mentsystem.Hecanpull
moneyoutfrombank
accountstoananonymous
destinationabroad.”
—PrashantPandey,
Vyapamwhistleblower
“LinkingofAadhaarto
bankaccountswillenable
benamibankaccounts
andscalebenami
transactionstodestroy
theIndianeconomy
alongwiththeIndianbank-
ingsystem.”
—ProfAnupamSaraph,
systemsandgovernance
expert
“Asacitizen,whyshouldI
surrenderallmypersonal
detailstothegovernmentso
thatitcanbemisusedagainst
me?Whyshouldpeopleknow
whichhospitalIgoto?Onceall
myactivitiescanbemapped,
theinformationcanbeusedto
perpetrateacrimeagainstme.”
—IndiraJaising,
humanrightslawyer

Prashant Pandey, who knows a thing
or two about cyber security and was the
whistle-blower in the Vyapam scam,
fears that the linking of Aadhaar cards
to bank accounts could lead to serious
frauds. He told India Legal: “Just imag-
ine a trickster operating from outside
India with leaked Aadhaar database and
hundreds of POS machines with the bio-
metric payment system, Bhim. He can
pull money out from bank accounts to
an anonymous destination abroad. The
possibilities are immense unless security
is tightened and data secured.”
Professor Anupam Saraph, an expert
in governance of complex systems, des-
cribes the linking of Aadhaar to bank
accounts as a move which will “enable
benami bank accounts and scale bena-
mi transactions to destroy the Indian
economy along with the Indian bank-
ing system”.
In his blog, Saraph lists several rea-
sons why he feels the Aadhaar-bank
account linking is dangerous. Innocent
account holders, he notes, will find their
UID numbers being used as “mules for
money laundering”. Or their payments
under government schemes easily com-
promised by tricksters. Worse, they can
be “framed for economic offences” if
someone deliberately transfers illegal
money into their accounts. This, in turn,
would lead to harassment and accounts
being frozen pending investigation.
But how can fingerprints be copied
and misused? Pandey pointed to the
example of the Vyapam entrance exami-
nation scam for MBBS in Madhya Pra-
desh. Here, qualified persons fronted for
the real candidates and wrote the exam
on their behalf despite fingerprint scan-
ners being used before allowing access
into the examination hall. How were the
scanners fooled? “The fake candidates
merely copied the fingerprints of the
real candidates on a silicon film and
wore it on their thumb. This happened
in not one or two cases but in several
hundreds of them. What happened in
Vyapam is proof of how unreliable fin-
gerprint identification is,” he said.
Fingerprints from the Aadhaar data-
base, once accessed, can easily be copied
and used to implicate someone in a
crime. Pandey believes it is a real possi-
bility. “Your fingerprint can be placed at
the scene of a crime by vested interests
who can frame you with the help of the
police. The prospect of misuse is fright-
ening,” he said. Pandey hopes to demon-
strate how Aadhaar data can be misused
before the apex court.
Noted human rights activist and sen-
ior Supreme Court lawyer Indira Jaising
said that privacy concerns are not to be
taken lightly. She told India Legal: “As a
citizen, why should I surrender all my
personal details to the government so
that it can be misused against me? Why
should people know which hospital I go
to or which school my child attends?
Why should they know where I am trav-
elling to or on which airline I have
booked my tickets? Once all my activi-
ties can be mapped, the information can
be used to perpetrate a crime against
me. Why should I allow that?”
H
owever, those who endorse the
UID scheme brush aside priva-
cy concerns by saying that such
apprehensions reside only in the minds
of those who are involved in illegal
activity or have unaccounted wealth and
would not like their bank transactions to
be monitored. However, what is missed
out is that there are already enough
ways to keep tabs and there is no need
Lead/ UID Programme
ModusOperandi
AADHAARDATABANK
Biometricdatais
stolen
SILICONFILM
Fingerprint
iscopiedonfilm
BHIM APP
Copiedfingerprintusedon
app/POS machinetotransfermoney
BANK
Moneytransferredto
anotheraccount
Here’s how the system is not foolproof and leaves you vulnerable to theft
18 July 17, 2017
Infographic: Amitava Sen
T
he Supreme Court on July 7 heard
applications for interim relief to
stay notifications which make
Aadhaar mandatory for availing benefits
and entitlements. The applications are
by the same petitioners whose chal-
lenge against the constitutionality of the
Aadhaar Act is pending before a consti-
tution bench of the apex court.
The notifications make Aadhaar
mandatory for a number of schemes,
including those which enable children to
get hot meals, scholarships for disabled
students and those in the SC/ST/OBC
categories, schemes for women res-
cued from trafficking, bonded labourers
and Bhopal gas victims. The notifica-
tions make possession of an Aadhaar
number or proof of enrolment in the
Aadhaar database mandatory.
The petitioners said that Aadhaar as
a precondition for availing social bene-
fits violates the fundamental rights of cit-
izens. The hearing began with the senior
counsel for the petitioners, Shyam
Divan, taking the bench through the ear-
lier orders of the Supreme Court, includ-
ing those of August 11, 2015 and
October 15, 2015, which clearly stated
that Aadhaar shall be voluntary.
Setupconstitutionbench:JusticeChelameswar

to store personal data which can easily
be stolen. “As for Aadhaar providing bio-
metric proof of identity, the less said the
better,” said Colonel Thomas Mathew, a
Bangalore resident and one of the first
to file a civil suit in the apex court
against Aadhaar.
“The UID/Aadhaar number is for all
residents in India (who could also be
outsiders on an extended visa). It cannot
hence, serve as an ID for Indian citizens.
It is not an ID card, but a number in a
database. The UID scheme envisages
that people would be identified every
time identification is needed, by scan-
ning biometrics and querying the
UIDAI database. This is impractical.
UIDAI itself admits that demographic
data is inaccurate. If demographic data
is unreliable, UID cannot be proof of
ID,” Mathew told India Legal.
As for the fallibility of biometric
data, he quotes the 2010 study titled
“Biometric Recognition—Challenges
and Opportunities” by four US national
academies—the National Academy of
Sciences, the National Academy of Engi-
neering, the Institute of Medicine and
the National Research Council.
The first principal finding of the
research was that “biometric recognition
is inherently probabilistic and hence,
inherently fallible”. According to esti-
mates, under field conditions, the false
matches are 1 in 16.
Added Mathew: “The actual number
of false matches is even more—1 in 10.
This fact is known from an ignorant,
inadvertent admission of UIDAI in its
counter-affidavit to my writ petition in
which it stated that 80 million fake/
duplicate enrolments were detected
(at a time when about 800 million
enrolments were done). So, mathema-
tical prediction is proved by ground
reality data.”
Even in the Madrid train bombings
case of 2004, fingerprints taken at the
scene of the crime matched those of 20
people in the FBI database. When even
the limited data bank of criminals with
the FBI is fallible, imagine the probabil-
ity of error when the entire population
of a country as vast as India is involved.
Ahead of the 2014 general elections,
the BJP had opposed the UID progra-
mme. In fact, Mathew was invited to
make a presentation against Aadhaar
before a BJP Parliamentary Party
presided by LK Advani. The unanimous
view then was that Aadhaar was a secu-
rity risk and must be vehemently oppo-
sed. But things changed after the BJP
came to power. Notes Mathew: “The
party has done a complete ‘U’ turn with-
out giving any reasons.”
In the final analysis, before the nat-
ion heads towards a total Aadhaar
regime, it is perhaps time for the gov-
ernment to reassess the entire UID pro-
gramme to plug the inherent security
lapses. Also, it must not promote its use
as proof of identity. It was only last
month that the Union home ministry
issued a communiqué: “Aadhaar (UID)
card is not an acceptable travel docu-
ment for travel to Nepal/Bhutan.” A
valid national passport or election ID
card issued by the Election Commi-
ssion would however serve as proof.
Therein lies the harsh reality and
identity crisis…
“TheAadhaarnumberisforall
residentsinIndia.Itcannothence,
serveasIDforIndiancitizens.Itisnot
anIDcard,butanumberinadatabase.
Everytimepeoplehavetobeidentified,
identificationisneededbyscanning
biometricsfromtheUIDAIdatabase,
whichisimpractical.”
—ColonelThomasMathew,
anti-Aadhaarcampaigner
Divan said that allowing the Aadhaar
project to go-ahead unchecked and
seeking to link it to almost every aspect
in life is effectively reducing the citizen
into a 12-digit number and transforming
the country into a concentration camp for
the citizens.
The Court was of the view that the
correct course would be for both parties,
i.e. the petitioners and the government,
to jointly impress upon the chief justice
the need to constitute a constitution
bench to dispose of the entire batch of
petitions. Attorney General KK Venugopal
agreed with join Divan in this issue. The
bench also indicated that in the eventual-
ity of the CJI not being able to form a
constitution bench, the petitioners could
come back to the court and argue for
interim relief.
These applications were earlier heard
on May 9 and then on June 27 by a
vacation bench consisting of
Justices AM Khanwilkar and
Navin Sinha. The July 7
hearing was before a spe-
cial three-judge bench
headed by Justice
Chelameswar along with
Justices Khanwilkar and
Sinha. Justice
Chelameswar also head-
ed the bench that passed
the order dated
August 11,
2015 that
referred the batch of petitions to a consti-
tution bench. It did so as it felt it required
a definitive pronouncement, among other
issues, on the existence and scope of a
fundamental right to privacy under the
constitution.
The July 7 hearings mark the
first time that the government has
agreed to mention before the CJI
the need to constitute a larger
bench to hear the constitutional
challenge to the project and the
Aadhaar Act. In October 2015, the
government had mentioned before
the then CJI, HL Dattu, to get the
constitution bench only to hear and
decide their applications for modi-
fying the August 11 order.

Courts/ SEZs
20 July 17, 2017
OMMON law has evolved the
doctrine of eminent domain
which invests power in the
sovereign authority of the gov-
ernment to acquire the land of
its citizens. The British enacted the
Land Acquisition Act, 1894. After
Independence, the said legislation
underwent several amendments made
by the states. The right to property as a
fundamental right was mutated as only
a constitutional right mandating pay-
ment of fair compensation for acquisi-
tion of private property. The parliament
enacted a refurbished land acquisition
act in 2015. In the erstwhile and current
legislation, the state is empowered to
acquire land for public purpose. Each of
the states have also enacted a law for
acquisition of land for industrial devel-
opment and delivering the land to pri-
vate entrepreneurs for establish-
ment of industries.
The concept of Special Economic
Zone (SEZ) is borrowed from the
Chinese. In the context of globalisation
of markets, each state started wooing
local and foreign investment for indus-
trial development. This trend became
evident from 2000 onwards, resulting in
enacting of the SEZ Act in 2005.
FLAWED ACQUISITION
The object of acquisition of land to aug-
ment industrial development is laudable
but the implementation is gravely
flawed by unscientific and aggressive
takeover of agricultural land by the state
without proper data regarding the
demand of investors vis-a-vis the extent
of land acquired. In many areas of the
state, fertile cultivable land is acquired
for SEZs. The states have not followed
the policy of utilising waste land for
SEZs. The wholesome objective of aug-
menting industrial activity and increas-
ing employment opportunity is belied by
unscientific and unneeded acquisition.
The CAG report of 2013 discloses
that between 2006 and 2013, about
60,375 hectares were acquired, out of
which only 28,488 hectares become
operational. More than 53 percent of the
total land acquired was in disuse. The
Be Fair and Square
APILseekingthereturnofunutilisedlandtothefarmershasbeenfiledintheSupremeCourt
By Justice K Sreedhar Rao
C

report further states that the percentage
of acquired land which was unutilised in
various states was as follows: West
Bengal and Odisha, 96 percent;
Maharashtra, 70 percent; Gujarat and
Andhra Pradesh, 48 percent and
Karnataka 40 percent. It is reported
that if the unused acquired land had
been cultivated, close to one million
tonnes of food grain could have been
produced. Besides this, there would
have been employment opportunities for
agriculture labour and trade.
A PIL has been filed in the Supreme
Court against seven states for unscien-
tific acquiring of land for SEZs and
seeking return of unutilised land to the
farmers. The Supreme Court issued
notices to the concerned states in this
regard. In retrospect, the reason for
public purpose of acquisition becomes
unfounded. The landowners at the time
of acquisition may not have the data to
contest it and to show that it does not
serve public purpose. The unutilised
land would stand testimony to the fact
that the public purpose projected at the
time of acquisition has been belied.
VIOLENT RESISTANCE
Also, the acquisition of land for SEZs in
various states has not been a smooth
affair and there has been violent resist-
ance. The Singur episode in West
Bengal, for example, is a sad picture of a
police state. The state in land acquisi-
tion matters does not act fairly and
equitably. Often, it results in displace-
ment and reallocation of the population.
Also, when there is no fair compensa-
tion to the landowners, the cases get
quagmired in long-drawn-out litigation,
with the result that they get enhanced
compensation from the court after 15
to 20 years.
The state usually fixes compensation
for the land disproportionately and at a
lower rate even in cases where the
acquisition is for the benefit of a private
investor. The state authority will sell the
land so acquired after some cosmetic
development at almost four to five times
higher than the compensation paid to
the land owner.
In the current land acquisition act,
the compensation amount payable is
fixed at such a high rate that it makes it
impossible for any investor to pay it.
Authorities of the state while approving
the project would instigate the private
investor to go for a negotiated settle-
ment with the land owner for the pur-
chase without recourse to legal proce-
dures to avoid public ire and resistance.
There are even instances of chief
ministers and ministers selectively
denotifying some of the land acquir-
ed when it was found that its value in
the area near SEZs had appreciated as
a result of the acquisition. The power
of denotification of the acquired land
is rampantly misused by corrupt politi-
cal authorities.
The decision of the Supreme Court
as to how the state should deal with the
unused land is awaited, but the state has
to learn lessons from its experience and
do land acquisition based on the gen-
uine need of the investors. The land so
acquired for SEZs should be waste land
and in remote and under-developed
areas. However, infrastructural facilities
like proper road transport and air con-
nectivity to connect such SEZs is to be
provided. The state has to totally revise
and revamp the existing policy of SEZs
to make them development-friendly.
—The writer is former acting chief
justice of the Karnataka and
Gauhati High Court
Thestateusuallyfixescompen-
sationforthelanddisproportion-
atelyandatalowerrateevenin
caseswheretheacquisitionisfor
thebenefitofaprivateinvestor.
SOCIAL COST OF SEZS
(Facing page) Unfair and unequitable land
acquisition often results in displacement and
reallocation of the population; (top) Entry to
a Special Economic Zone
mangaloresez.com

Courts/ MP/ Paid News
22 July 17, 2017
HE Election Commission’s
decision to disqualify an MLA
for furnishing wrong accou-
nts of his poll expenditure
has been legally challenged.
Madhya Pradesh’s minister for water
resources and public relations Narottam
Mishra has challenged his disqualifica-
tion for three years under Section 10A of
the Representation of the People Act,
1951. And the verdict is likely to be pro-
nounced in the Madhya Pradesh High
Court’s Gwalior bench soon.
Section 10A empowers the Election
Commission (EC) to disqualify a candi-
date if he fails to submit an account of
his poll expenses in time and in the
manner required by the Act. In Mishra's
case, the money spent by him on paid
news did not reflect in his poll expenses
account filed with the EC.
Paid news is the practice of disguis-
ing advertising as journalism and where
mainstream media publishes favourable
articles in exchange for payment. Mish-
ra is the second MLA in India to be dis-
qualified on this account. The first was a
BSP MLA from UP, Umlesh Yadav, who
was disqualified in October 2011. She
was elected to the Bisauli constituency
in 2007. Wife of controversial politician
DP Yadav, Umlesh was disqualified for
failing to provide a “true and correct
account” of her election expenses. She
had failed to include the amount she
had spent on advertisements which
were dressed up as news during her
election campaign. Umlesh did not chal-
lenge her disqualification. So, Mishra’s
disqualification is the first case of paid
news that has come up for hearing
before a high court bench.
Significantly, India’s top lawyers have
involved themselves in the case. While
Congress’ Rajya Sabha members Kapil
Sibal and Vivek Tankha are to appear on
behalf of the complainant, former attor-
ney general of India Mukul Rohtagi has
Inafirstcaseofpaidnewsbeforeahighcourt,anMLAwhowasdisqualified
forthreeyearsbytheEC,hasappealed,sayingthereisnoproof
By Rakesh Dixit in Bhopal
T
Political Faux Pas
CHANGING FORTUNES
MP’s Minister of Public
Relations Narottam Mishra
welcoming President Pranab
Mukjherjee on his arrival at
Datia in June this year
UNI

agreed to defend the minister. They
were scheduled to appear in Court on
July 5 for final arguments but, owing to
a lawyers’ strike, the single-bench head-
ed by Justice Vivek Agrawal reserved the
verdict for July 10. Therefore, the law-
yers did not come and in their absence,
Mishra and the complainant, Rajendra
Bharti, pleaded their case.
M
ishra sought a stay on the
EC’s order as there was “no
proof that he had paid money
for the news”. Besides, he said, the case
pertained to the 2008 assembly election
and he had already won the 2013
assembly election from the same con-
stituency. He has described the order as
“anomalous and based on imagination
and possibilities”. Mishra, who is the
government’s spokesman, is considered
the number two in the Shivraj Singh
Chouhan cabinet.
Mishra’s lawyer MPS Raghuvanshi
said: “We have made a plea to the court
that the EC order is not based on any
proof that Narottam Mishra gave money
for the news. So we are urging the court
that until investigation into the matter
is completed, it should stay the order.”
In May 2014, the Supreme Court had
dismissed a petition by former Maha-
rashtra Chief Minister Ashok Chavan
challenging the authority of the EC to
investigate complaints that candidates
contesting elections had paid for news
coverage. The apex court ruled that the
EC had the power to inquire into com-
plaints of paid news and disqualify can-
didates if expenditure on such ads was
not reported as part of a candidate’s
election spending.
Mishra’s so-called paid news appea-
red 42 times in the form of an appeal for
votes in various newspapers in the run-
up to the assembly polls in November
2008. He won on a BJP ticket from
Datia assembly seat, defeating his near-
est rival and BSP candidate Rajendra
Bharti who later joined the Congress.
In its order, the EC stated that
Mishra “was complicit in the publication
of the impugned paid news as news ite-
ms and has derived benefit from and
taken advantage of the same, without
reporting or acknowledging it, and the-
reby attempting to bypass the rigours of
the law”. It further said: “As laid down
under Section 7(b) of the Representative
of the People Act, 1951, Mishra stands
debarred from being member of either
Houses of the state legislature and also
from contesting polls for three years
from the date of issue of the disqualifi-
cation order.”
Last year, the EC questioned Mishra
in Delhi about the allegations made in
the disqualification petition, but was
not satisfied with his clarification. It has
taken the view that even if it was true
that he had made no payment, he ought
to have included a notional amount in
his accounts.
Also, candidates cannot simply claim
that these reports were not authorised
by them. As long as the intention to
boost someone’s prospects is clear, and
there was no objection from the candi-
date, the EC can rule that there was
“implied authorization”. Three days after
he was disqualified, Mishra moved the
Gwalior bench of the High Court which
refused to grant a stay on his petition
but issued a notice to the poll panel
seeking its reply by July 5.
Even as the High Court decision is
awaited, a wordy duel is taking place
between the Congress and the BJP.
While Mishra said his disqualification
was a “conspiracy to thwart develop-
ment works he has been carrying out in
his constituency”, BJP state president
Nand Kumar Singh Chouhan described
the EC’s order as dooshit (contaminat-
ed) and ruled out action against the
minister. Speaker Sita Sharan Sharma
questioned the EC’s power to debar an
MLA. “The power to disqualify an MLA
is vested with the governor and he is yet
to take a call on the order,” he claimed.
Meanwhile, the Congress has sought
the immediate resignation of Mishra.
“It has been proved how BJP ministers
are winning polls,” said the leader of
the opposition, Ajay Singh. State Cong-
ress president Arun Yadav echoed his
party colleague.
Veteran journalist P Sainath, who
has written extensively on the phenome-
non of paid news, said the minister’s
disqualification is a welcome sign for
democracy. “But more such people need
to be disqualified. A large number of
elected people’s representatives escape
punishment for paid news for lack of a
concrete law to deal with this crime,” he
told India Legal.
Senior journalist Paranjoy Guha
Thakurta said he was delighted to know
that a minister had been disqualified for
paid news. “This will hopefully set a
good precedent for the poll panel to
penalise many more such offenders in
future,” he said. Thakurta was one for
the two members of the Press Council’s
sub-committee that highlighted the
problem of paid news in a report in
April 2010.
It is obvious that politicians need to
be careful as the EC is keeping a close
watch.
“Moresuchpeopleneedtobedisquali-
fied.Alargenumberofelectedpeople’s
representativesescapepunishmentfor
paidnewsforlackofaconcretelawto
dealwiththiscrime.”
—PSainath,veteranjournalist

AstheSupremeCourtopensafterthesummerrecess,
advocatesandjudgesarefacedwithaplethoraofproblems
online,includingteethingtroublesinthee-courtsystem
By Rajesh Kumar and Sucheta Dasgupta
NOT SO TECH-SAVVY: Advocates and
lawyers struggle as the Supreme Court
experiments with its digital transformation
24July 17, 2017
Web of Troubles
Courts/ Digitisation
ALL it a case of teething trou-
bles or holiday hangover. But
when advocates returned to
work after the summer break,
they were unpleasantly surp-
rised to find the perfectly functional
Supreme Court website changed while
they were away. Though the old website
was still accessible, it had not been up-
dated and daily cause lists, old judg-
ments, case statuses and orders were no
longer available.
The new website, shabby-looking in
comparison to its predecessor, had ske-
tchy information—the weekly advance
list of cases coming up for hearing was
missing and the daily cause list—cases
to be heard the following day—was con-
fusing with extra lawsuits populating it.
In place of the date of hearing, a cryptic
“Fixed Date” displayed in fluorescent
blue flashed at the user.
Various judgments and case statuses
were also not searchable and the inter-
face was forbidding and unfriendly. In
fact, the free-text search function was
still not working at the time of going to
the press. And, if the user did not know
the case or diary number, it was impos-
sible to get the information of a particu-
lar case. This caused major hiccups for
lawyers, researchers and journalists.
M
eanwhile, in the chief court
(courtroom No 1 of the apex
court complex), the techni-
cian was frantically trying to start the e-
court system on the judge’s computer so
that he could browse the case files dur-
ing a hearing. Minutes ticked into a
quarter-of-an-hour. Soon, he had to
abandon his effort and it was announ-
ced in open court that the e-court sys-
tem was not working owing to a mal-
functioning server.
The e-court system was conceived in
2005, and first implemented in the
Delhi High Court. This year, it was imp-
lemented in the Supreme Court. All ad-
vocates-on-record have been advised
to register themselves for obtaining
their code numbers so that they can file
petitions on behalf of their clients
electronically.
Almost all have complied and e-peti-
tions are being duly filed, but none of
the computers of the judges are able to
run this program. The e-court here has
thus remained on paper only.
Speaking of upgrades and renova-
tions, courtroom No 13 was expanded
and renovated during the summer
break. The entrance has been moved
and the judges’ dais shifted to an adja-
cent wall. Advocates, judges and atten-
dees have also found their gaze blocked
by three pillars, which are really rem-
nants of the wall that once separated the
two rooms, which stand in the middle,
denying them a full view of the proceed-
ings. The advocates could play peekaboo
with the judges if they so wished. A
merry start to the court proceedings!
C
Variousjudgmentsandcasesta-
tuseswerenotavailable;the
interfaceseemedforbiddingand
unfriendly.Thefree-textsearch
functionwasnotworking.
Bhavana Gaur

Briefs
The central government has
proposed an All India Medical
Services cadre similar to the
Indian Administrative Service (IAS)
and Indian Police Service Union.
The proposal comes five-and-a-
half decades after the Mudaliar
Committee recommended in its
1961 report the setting up of a
central health cadre. As health
falls on the state list, the centre
has written to the chief secretaries
of all states seeking their views. In
the letter dated June 9, the union
health secretary stated that cre-
ation of an All-India Medical
Service could help bridge the gap
between the state and centre on
issues involving the condition of
health services and would also
improve technical management at
both levels.
Govt proposes an
all-India health cadre
—Compiled by Lilly Paul
Achal Kumar Joti has been appoint-
ed the 21st Chief Election
Commissioner of India. He will take
office on July 6 after the incumbent
Nasim Zaidi demits office.
A 1975-batch IAS officer belonging
to the Gujarat cadre, Joti also served as
chief secretary of Gujarat during Prime
Minister Narendra Modi’s tenure as
CM before being appointed as one of
the three election commissioners on
May 7, 2015. The 64-year-old will serve
a term of one year as 65 is the retire-
ment age for CECs. His name was
approved by President Pranab
Mukherjee. Joti has also served as
chairman of the Kandla Port Trust and
as managing director of Sardar Sarovar
Narmada Nigam Ltd in Gujarat.
The Andhra Pradesh government has
decided to promote beer as the “health-
ier option” to all other forms of liquor. The
state prohibition and excise minister,
Kothapalli Samuel Jawahar, has said beer
parlours will be set up as the beverage has
less alcohol content than other liquors.
Discussing the new state excise policy
on a Telugu channel, Jawahar surprised the
audience when he called beer a “health
drink” and said that he is ready to prove it.
The minister also sent a WhatsApp mes-
sage to the channel listing the health bene-
fits of beer consumption.
The CBI has booked former Bihar
chief ministers Lalu Prasad and
Rabri Devi, and their son Tejashwi, now
deputy CM, for graft. This is linked to
the award of a tender for maintenance
of two railway hotels in Ranchi and
Puri in 2006 when the RJD head was
railway minister. Raids were also cond-
ucted at 12 locations, including their
Patna home. The CBI said the Railways
did not have details of bidders except
Sujata Hotels. The ownership of Del-
ight, a marketing company, mysterious-
ly changed hands to Rabri and Tejash-
wi. Lalu’s elder son, health minister Tej
Pratap, is also in trouble with BJP’s
Sushil Modi moving the EC for disqual-
ifying him as MLA for hiding his assets.
Andhra to push beer as
“health drink”
CBI books Lalu, Tejashwi
With the state
assembly
polls scheduled next
year, the Chhattis-
garh government
has cancelled the
caste certificate of
its ex-chief minister
Ajit Jogi and is like-
ly to file an FIR
against him. Bilas-
pur district collector
P Dayanand ord-
ered the cancella-
tion acting on the
recommendations
of a high-powered
committee formed
on the advice of the
high court.
Jogi’s tribal sta-
tus has always been
in question and it is
believed that he
hails from a sched-
uled caste and not a
scheduled tribe.
Over a year ago, the
ex-Congressman
floated his own
party, the Chhattis-
garh Janata Cong-
ress, which is emer-
ging as a force in
the state. Jogi’s son
Amit, who is MLA
from Marwahi, has
said he will chal-
lenge the move in
court.
Ajit Jogi’s caste proof annulled
AchalKumarJoti,
India’snewCEC

Economy/ GST
26 July 17, 2017
INALLY, after 11 years, the
Goods and Services Tax
(GST) was rolled out on
July 1. Even though it’s a bit
early, let’s take a look at the
expected impact of GST and
the immediate impact of its implemen-
tation. One of the expectations from
GST is that the prices of goods and
services will come down. No doubt, the
rate of tax is an important factor for
price reduction. But, there are other
equally important factors.
GST will bring down prices because
of its structure and form. First, the min-
imising of cascading taxes through a
free flow of input tax credit will lead
to elimination of the hidden tax, that is,
tax on the tax.
Secondly, by subsuming 17 indirect
taxes of the centre and the states into
one tax, GST will reduce overall compli-
ance costs. Also, subsuming of Entry
Tax/Octroi into GST will drastically
NoTaxonTax
Thenewregimeisexpectedtoputmoremoneyinthepocketsofconsumersasitcould
reducetransportationandlogisticscosts.Hiccupsneedtimetobesortedoutandwillbe
anongoingprocess
By Sumit Dutt Majumder
FVALUE FOR MONEY?
GST is expected to bring
down prices but the truth will
be out only after a few months
into the new tax-system
Shivani Sharma

GoodsattractingdifferentGST
reduce transportation and logistics
costs. GST will do away with check posts
at inter-state borders which were
responsible for piling up of trucks, loss
of man-hours and delay in transporta-
tion. All these costs were being finally
passed on to the consumers. With GST,
these costs will be marginalised, and
therefore, should bring down prices
across the board of all goods and servic-
es irrespective of their tax rates.
Now, the impact of GST rates. Theo-
retically, GST should have only one rate.
But, in India, people are at different lev-
els of society—some are below the pove-
rty line, there is the lower middle class,
the middle class, the upper middle class
and the super rich. Further, the govern-
ment has a commitment to the weaker
sections of society. Therefore, India can-
not have one rate of tax for all goods
and services. One cannot imagine a
“suit” and a “dhoti” attracting the same
rate of tax. So, there was a need for dif-
ferent rates keeping in mind the needs
of different classes of people.
Besides, India is not the only country
to have more than one rate. France, the
first country to introduce VAT in 1954,
has five rates. The UK, Australia and
many European countries have two or
more rates.
Against this background, the GST
Council decided to have four rates apart
from the exempted goods. Broadly
speaking, the five rate-slots are: zero
percent, five percent, 12 percent, 18 per-
cent and 28 percent, according to their
usage by different classes. For some of
the goods at the 28 percent slot, there
will be additional cess. Further, for gold,
diamond and other precious metals, a
special rate of three percent has been
fixed (see box).
BEFORE AND AFTER
If one were to compare the rates of
some items after GST and before, when
the sum total of central excise, service
tax, state VAT, etc, was imposed, the
incidence of tax has come down. These
are for the following items/sectors:
Automobiles including SUVs: From
55.3 percent to 43 percent; However,
hybrid cars have been excluded (where
tax rate has gone up to 28 percent plus
15 percent cess). The rationale behind
lower GST for SUVs and higher for
hybrid cars is difficult to fathom
FMCG items such as soap, tooth-
Exempted(0%) 5% 12% 18% 28%
Unpackedfoodgrains
Packed and branded
food grains
Ghee Pasta
Cigarettes
(plus cess)
Unbranded
atta&maida
Sugar Cheese Cornflakes Perfume
Freshvegetables Tea
Almonds and other
nuts
Soup Shampoo
Milkandmilkfood
forbabies
Roasted coffee
Pickles, jam & jelly Ice cream Air conditioner
Skimmed milk
powder
Fruit juice based
drinks
Soap Refrigerator
Apparels priced
upto `1000
Mobiles Toiletries Washing machine
Computers
Automobile (plus
cess in some cases)
Printers
Pastries & cakes
Infographics: Rajender Kumar

Economy/ GST
28 July 17, 2017
paste, hair oil, ice-cream, noodles, jam:
21-24 percent to 18 percent
Among building materials, steel: 18
percent to 12 percent
Coal, iron and copper ores: 11.7 per-
cent to 5 percent
For mobile phones: 26 percent to
12 percent
However, there has been an incre-
ase in tax rate for the following items/
sectors:
Detergents, shampoo, deodorants and
other miscellaneous FMCG products:
from 20-24 percent to 28 percent
Aerated water: 28 percent plus cess
Building materials like cement, paints,
tiles, sanitary wares and plywood: 18-26
White goods like air conditioners,
refrigerators, washing machines, etc: 26
Chocolates: 22-24 percent to 28
percent
Sanitary napkins: 4-6 percent to
12 percent
Solar power: 0 percent to 5 percent
GST RATES FOR SERVICES
Similarly, services where GST rates have
increased to 18 percent from 15 percent
are: Telecom, banking, insurance and
other financial services, cinema services
for tickets costing up to `100, entertain-
ment, hotel rooms with tariffs between
`2,500 and `7,500, restaurants at five
star hotels and AC restaurants with
liquor licences.
Services that will be hit the most
because of GST rate going up to 28 per-
cent are: Luxury hotels with room rent
tariff of `7,500 per day, cinema services
where ticket price is more than `100.
Services where GST has been reduced to
12 percent are: Non-AC restaurant and
business class air travel. Services where
GST has been reduced to 5 percent are:
AC rail travel, economy class air travel,
car aggregators like Uber and Ola and
space for advertisement in newspapers.
Services exempted from GST in-
clude: Education, healthcare, non-AC
rail travel, metro and local train, reli-
gious travel, lawyers and law firms,
music composers, photographers, etc.
While talking about the increase and
decrease in tax rates in the GST regime,
one should remember that because of
the benefits accruing from non-tax fac-
tors like seamless flow of input tax cred-
it, marginalisation of cascading of tax,
reduction in compliance costs, logistics
and transportation costs, etc, the inci-
dence of higher tax in some cases will
get mitigated. Thus, a fall in prices in
Exempted(0%) 5% 12% 18% 28%
Education AC rail travel
Business class air
fare
Telecom
Luxury Hotels
with tariff of `7500
and above
Healthcare
Economy class
air travel
Non AC restaurant
Banking and other
financial services
Cinema services
with tickets for more
than `100
Non-ACrailtravel
Cab aggregators like
Uber, Ola, etc.
Cinema service for
tickets upto `100
Insurance
Lawyersorlawyer’s
firm
Space for
advertisement
Restaurants at 5-star
hotels
Insuranceagents
Hotel rooms with
tariff between `2500
and `7500
Servicesbyauthor,
musiccomposeretc.
ServicesattractingdifferentGSTrates
Aminimisingofcascading
taxesthroughafreeflowof
inputtaxcreditwillleadto
eliminationofthehiddentaxand
bringdownprices.

general can be expected. We will have to
wait for a few months to see the actual
position. The jury is still out on this.
MSME CONFUSION
As for the immediate impact from the
point of view of implementation, a cer-
tain amount of confusion was always
expected in the Micro, Small and
Medium Enterprises (MSME) sectors
and retailers. Quite a few of them were
not ready with their computerisation
and customisation of their software with
GSTN, the IT infrastructure.
The situation was further aggravated
as the GSTN did not get time to be ful-
ly operational in its business processes.
The module for return filing and invoice
matching was to be operational only by
end-July and the excel sheet for upload-
ing invoices by June-end. Besides, the
last-minute rush for migration to GSTN
and fresh applications for registration
had put a lot of stress on the system.
This resulted in delays on the first stage
of registration itself.
Further, the MSME sector was wait-
ing to be helped by the GST Suvidha
Provider (GSP) for interface with the
GSTN. However, as GSTN was not fully
ready, it could not provide the applica-
tion software for the interface to the
GSPs. This is why the MSMEs were in-
convenienced. All these could have been
avoided if the implementation was defe-
rred to September 1. Anyway, the gov-
ernment must have had other compe-
lling reasons for maintaining the dead-
line. However, the centre must be cred-
ited with quick decisions in deferring a
few critical compliance requirements. It
offered tax-payers certain relaxations
like deferring the return filing till Sep-
tember, carrying on business without
waiting for registration number, etc.
GST, which has already shown some
positive impact, should be welcomed. It
is hoped that the initial difficulties of
the MSME sector and retailers will be
sorted out soon. The implementation
process has to be taken as “work in
progress”, and course corrections will
have to be a continuous process.
A GST that has come after a wait of
over 11 years must not fail us.
—The writer is former chairman,
Central Board of Excise and
Customs and author of the book,
Know Your GST- GST Unraveled
Onecannotimaginea“suit”and
a“dhoti”attractingthesamerate
oftax.So,differentrateswere
neededkeepinginmindtheneeds
ofdifferentclassesofpeople.
team-bhp.com

Whileapetitionhasaskedforlawsagainstthiscrime,eventhe
presentprovisionsarenotbeingenforcedbyagencies
By Justice Narendra Chapalgaonker
JUNGLE JUSTICE
A man attacked by a mob in Ramgarh district
of Jharkhand for allegedly carrying beef on
June 30
30July 17, 2017
Injuring Democracy
Legal Eye/ Lynchings
YNCHING, simply put, is mur-
der by mob. But it is something
more than a murder committed
by an unlawful assembly. When
the victim is accused of some
crime and the mob, without giving him
an opportunity to defend himself, bru-
tally murders him as a punishment, it
is lynching. Therefore, it is not only a
crime against a person but it is also a
crime against constitutional governance.
Its seriousness will have to be weighed
from this angle.
Incidents of lynching are now on the
rise. Victims are normally members of
minority communities and offenders
claim to defend the culture, religion and
even law. However, the enthusiasm of
some, claiming to be followers of the
philosophy for which the government
stands, may destroy the credibility of the
government and the constitution. The
downfall has already begun.
Assuming that the protection of the
cow is one of the holy causes, no sane
person would believe that lynching ser-
ves the purpose. The intended or unin-
tended purpose of such crimes is to cre-
ate fear in the mind of a section of socie-
ty. This fear often extends beyond the
communities and citizens become app-
rehensive to do or express anything wh-
ich the powerful persons may not like.
This hurts the liberal democracy which
has been assured by our constitution.
In the primitive stages of religious
and social history, lynching was used for
punishing certain crimes. When human
rights were recognised and a democratic
way of life was adopted, lynching was
discarded and condemned.
A petition against lynching is being
circulated on social media which would
later be presented to the president of
India and the prime minister. The move
is initiated by Muslim India, an organi-
sation working for Muslims in India and
their rights. However, the petition app-
ears to have been subscribed to by peo-
ple belonging to different religions.
When people start taking the law
into their hands and function both as
prosecutors and judges, the whole con-
stitutional system is endangered.
Equality before law remains a dead let-
ter in the statute book. Thus, a crime of
this nature has wider implications. Mere
formal denunciation of the incident will
not give an adequate message to the
offenders. The determination of the
state to deal with such crimes with a
firm hand, irrespective of the political
affiliations of the criminals, must be vis-
ible in its actions.
T
he offence of lynching has one
more aspect which must worry
all of us. Whether it is a girl
molested in public in the presence of
half-a-dozen people, a person stabbed in
full public view or a man hit by a rash
vehicle and lying in a pool of blood, the
fact that no one comes to help them is
worrisome. Have our sympathies
become frozen by the political climate?
Or is it an indication of people losing
their faith in the administrative machin-
ery of the state?
There is a demand that a more strin-
gent law for lynching be enacted. That
can surely be done. But the fault is not
with the law. There are legal provisions
presently which enable the guilty to be
punished for lynching.
If the law-enforcing agency is sin-
cere, if it is not influenced by the politi-
cal bosses and the witnesses are assured
of proper protection, the present provi-
sions can prove effective. The question
is how much independence the law-
enforcing agency would get and how
efficient it is.
—The author is former judge,
Bombay High Court
L
Whenpeoplestarttakingthelaw
intotheirhandsandfunction
bothasprosecutorsandjudges,
thewholeconstitutionalsystem
isendangered.
UNI

32July 17, 2017
Environment/ Aravallis
petition filed by an envi-
ronmental activist has
blown the lid of what see-
ms like a huge scandal
worth hundreds of crores
which could alter the eco-
logical landscape of the
National capital region. The issue of
clearance for a mega-buck real estate
deal in the Aravallis is currently with the
National Green Tribunal (NGT). The
players are equally big-time—Bharti
Telecom and the government
of Haryana. If the approval is given by
the NGT, over 52 acres of land in the
highly ecologically sensitive area of
Aravallis and situated within the Natu-
ral Conservation Zone (NCZ), could
soon become prime real estate, promot-
nearly 50,000 acres of such land will be
immediately handed over to real estate
developers.
The fact is that the land of the Ara-
vallis is locally termed as gair mumkin
pahar (infertile hills), the very concept
that brought the National Green Tri-
bunal into being. One of the objectives
was to stop desertification of land. In
this, the Aravalli range has played a vital
role. The range also replenishes ground
water for large tracts of land. Construc-
tion in NCZs is restricted to 0.5 percent
and residential construction is banned.
CRUCIAL MEETING
To get to the bottom of the blatant lie
that is being perpetrated by certain top
officials in collusion with billionaire
A
Landing a Deal
ed by Bharti Realty Pvt Ltd. The plan is
to build 2,000 luxury apartments and
accompanying urban facilities. As for
environmental concerns, no one seems
too bothered, except the petitioner.
Scarier than the thought of a devas-
tated eco zone is the impunity with
which senior government officials have
been running roughshod over laws that
bar construction in those areas.
That this is patently illegal has been
hinted at in some missives by other offi-
cials. Some letters are in the possession
of India Legal. Of the 8,000 trees in the
area, probably just 1,000 survive and
there is a move to term them as harmful
mesquite shrubs (see box) that should
be cut down. And if this project is
cleared, it will set a legal precedent as
Governmentofficialsaretryingtodeforestover52acresinthisecologicalsensitiveareafor
BhartiRealtyPvtLtd.Iftheprojectiscleared,nearly50,000acreswillbewithrealtors
By Sujit Bhar
UNDER THREAT
The Aravallis are
constantly facing
onslaught from builders
and the mining mafia
indiamike.com

Observation of the Additional Chief
Secretary, Govt of Haryana, about the
mesquite shrub, found in the Aravallis:
“I have seen various discussions in last
few months where the Forest Deptt itself
has planned to remove Mesquites
(Devil's tree), which grows like a weed
and does not allow any other plant to
survive around it, besides the thorns pre-
venting even wildlife to venture into the
area and replace them with other friendly
trees. In fact the State Govt is already
restoring the land under mesquites and
replacing the same by other species and
some such projects have already been
implemented.”
The position of the CPR
Environmental Education Centre,
Chennai, on it:
Indian Mesquite: The Shami tree (Ed:
this is mentioned as a “tree” and not a
“shrub”) has been considered a sacred
tree since ancient time. The tree is asso-
ciated with Devi (the Mother Goddess)
as well as Lord Shiva. The wood was
used to kindle the sacred fire during
Vedic times. Shamipuja—the worship-
ping of the Shami tree finds mention in
both Ramayana and the Mahabharata.”
The centre states:
“The tree is referred to as the ‘Golden
tree of the Indian deserts’, since all the
parts of the tree as useful in some way or
the other. The wood provided by the tree
is used in construction of houses, and
also for making agricultural implements.
The tree is also valued as a fodder tree.
The bark is used in treating muscular
and joint pains, leprosy, piles and worm
infestations. It also provides instant relief
to a person bitten by a snake or a
scorpion. The leaves and fruits are used
in preparing medicines for curing nerv-
ous disorders.”
It is for the government to decide
whether this is a “Devil’s tree” or a
“Devi’s tree”.
—Sujit Bhar
Devil’streeor
Devi’stree?
Sunil Bharti Mittal’s real estate venture,
one has to go back to a special meeting
of the NCR Planning Board, held on
December 20 last year. In the meeting’s
minutes on the Aravallis, it is stated:
“Additional Chief Secretary (ACS), Town
& Country Planning Department
(TCPD), Govt. of Haryana referred to
the Zoning Regulations stipulated in the
Regional Plan-2021 notified in 2005
and highlighted that the uses/activities
permitted in Natural Conservation Zone
(NCZ) are (i) Agriculture and horticul-
ture, (ii) Pisciculture; (iii) Social
forestry/ plantations including afforesta-
tion and (iv) Regional recreational activ-
ities with no construction exceeding
0.5% of the area with the permission of
the competent authority.”
It further says that “Zoning Regu-
lations of the RP-2021 have imposed
additional restrictions which are not
part of the existing Acts/Rules &
Regulations/ Notifications issued by the
Central Govt.”
There is, however, a section which
says: The “Govt. of Haryana, stated that
so far as issue of definition and delin-
eation of NCZ is concerned, the matter
is resolved. However, as concluded dur-
ing the meetings, the areas under NCZ
are to be governed inter alia by various
Statutes/Rules/ Notifications of con-
cerned Central Govt. Ministries/ Dep-
artments. Hence in such areas the
Zoning Regulations of RP-2021 (such as
restricting only 0.5% of construction,
that also for recreation activities), shou-
ld not be made applicable, since this is
an additional restriction. In order to
avoid any ambiguity, a clear decision
needs to be arrived at.
“After detailed discussions, it was
decided that Govt. of Haryana may
make a clear reference on the matter
and that will be considered separately.”
Hence this section has remained
ambiguous and till such areas are clearly
defined, they cannot be considered as
out of the NCZ.
GREEN SIGNAL
On June 22 this year, the additional
chief secretary of Haryana wrote to the
principal chief conservator of forests of
Haryana and his letter clearly gives the
green signal for construction work. His
argument was as follows:
“It is amply clear from the letter of
Dy Conservator Of Forest No 3945 Dt
CONCERNED CITIZENS’ INVOLVEMENT
An online petition shows the damage done
to the area in question

10/1/2014 that the concerned area of
Village Sarai Khwaja belonging to the
Bharti Reality Ltd (earlier Ajay Enter-
prises) is not covered under section 4 or
5 of PLPA Act and lies in the general
order of 28/11/1997 under section 4 of
PLPA. It also clearly states that the area
is NOT being treated as Forest' and FCA
is not applicable on this land. Further-
more the letter states that NO PLANTA-
TION UNDER ARAVALI PROJECT
has been undertaken by the Forest
Deptt on the above said land.”
The government officer appended a
Supreme Court order of 2013 in a case
of BS Sandhu in justifying his case. That
order has put doubts over the forest
cover argument in certain areas. It says:
“...by recording a blanket finding that all
land in village Karoran, District Ropar,
was ‘forest land’ for the purpose of
Section 2 of the Forest (Conservation)
Act, 1980, the High Court has affected
the legal rights of several villagers, agri-
culturists, farmers, shop owners, inhabi-
34July 17, 2017
has been superimposed digitally and it
shows only 2 trees on the said land.
Furthermore The Survey of India letter
No T-147/44-M-9 Dt 12/6/2017 flag
states very clearly that they shows ALL
WOODED AREA (FORESTS) whether
dense or open by a green wash on their
topographical maps. By that standard
also the area is not a Forest because
there is no green-wash area marked on
that plot till 1980.”
The salesmanship of the government
is clear in this letter. The letter also goes
on to state the promise by the Mittal
firm of planting a number of trees.
PERMISSION GRANTED
With the groundwork done by the gov-
ernment, the Dy Conservator Of Forest,
Faridabad, got into action and the very
next day, sent a letter to Bharti Land
Ltd (a copy of which is with India Legal)
saying that permission was accorded for
the felling of mesquite shrubs. One has
to remember that it had been, by then,
painfully proven by the government and
the forest department that there were
few trees and mostly shrubs.
While such activities were on, green
activist Lt Col (Retd ) Sarvadaman
tants of village Karoran, District Ropar,
who were carrying on their respective
occupations on their land even before
the enactment of the said Act on
25.10.1980. In our view, the High Court
should have been very careful before
recording findings which affect the
property rights of persons protected by
Article 300A of the Constitution.”
Not considering the fact that this
judgment wasn’t centred in and around
the contentious Sarai Khwaja Village,
and hence was possibly not applicable,
it was the handle that the government
used to push its case.
The letter also states: “...this case
fares even better because it was never
closed under section 4/5 of PLPA Act
1900 by any special order. Still, as a
matter of abandon caution, I have got
the Survey of India map of 1976 of this
area. On that map the area in question
TAKING NOTE OF ILLEGAL FELLING
A letter from Haryana’s principal chief conser-
vator of forests to chief secretary of the forest
department describes the status of the case
Despitegrowingprotests,the
waythegovernmenthas
approachedthiscase,itseemsit
isdesperatetogivetherealtor
thelastsay.
Environment/ Aravallis

Singh Oberoi filed a petition with the
NGT against all this. The Principal
Chief Conservator of Forests, Haryana
rushed a letter (Dt: June 24, 2017) to
the state’s additional chief secretary,
warning the top government official that
legal proceedings were on.
The letter states: “It may be seen that
the 0A (Ed: by Lt Col Oberoi) pertains
to land parcel belonging to Bharati Rea-
lty Private Ltd falling in village Sarai
Khwaja, District Faridabad. Therein,
Govt of Haryana decision vide ACS For-
ests letter number 5156-Ft-1/2016 /53
dated 24/4/2017 & Memo No. 5156-Ft -
1 -2016 /5733 dated 1/5/2017 have been
impugned. The Chief Secretary, Harya-
na, PCCF, Haryana and Divisional For-
est Officer, Faridabad are respondents
from Government of Haryana. Also,
through a Miscellaneous Application
No. 779 of 2017, the stay on the opera-
tion of the impugned letters has been
pleaded. TThe matter is listed for hearing
He said it was anybody’s guess what “the
very top” meant.
There are protests afoot, an online
application brewing, but the way the
government has approached this case, it
seems it is desperate to give the realtor
the last say. This overrules scientific the-
ories that the Aravallis are not only a
buffer for Delhi (against desertification),
but also present the most important
ground water recharging environment
in a mostly arid area.
“If one can look into the land-hold-
ing pattern of the Aravallis (though it is
a NCZ area, private land ownership is
allowed), it will be clear how much vest-
ed interest lives in these hills,” said the
source. “The course of this case will
decide the future of over 50,000 acres
that can be immediately opened up for
real estate, dealing a blow to our envi-
ronmental concerns.”
on 03/07/2017.” The last sentence is in
bold for emphasis in the original.
Thereafter, an interesting paragraph
follows. It says: “The Additional Advo-
cate General has advised to file reply on
part of State of Haryana and its respon-
dent departments/authorities well bef-
ore 3/7/2017. In this regard, it is sug-
gested that the reply should be filed by
the Government because the decision
into the matter has been taken at the
level of Government and the depart-
ment does not have full facts or grounds
based on which the decisions were tak-
en.” This is a most diplomatic way of
passing the buck, it seems.
A source, on condition of anonymity,
told India Legal: “It has to be remem-
bered that while the NGT was consider-
ing sending an expert committee to
inspect the area, the government had
already given permission for the felling
of the trees. The letter according per-
mission was given on June 23, a Friday.
Saturday was a holiday, fol-
lowed by Sunday. Most inter-
estingly, Monday was Eid,
another holiday. Hence the
felling of trees could continue
without any court interfering.”
The case for the real estate
project seems to have been
presented with care and in
quick time. A lot of back-
ground work has been done by
those concerned and the
source claimed that “there is
no way any government
department would work with
so much alacrity if there was
no pressure from the very top”.
Ifthecasegoesin
favourofSunilBharti
Mittal’srealestate
companyBhartiRealty,
itwillseverelycripple
groundwater
rechargingcapacity
oftheAravallisand
accelerate
desertificationof
theregion.
SWIFT DECISION
Some officials went out of the way to give
permission to Bharti Realty for tree-felling,
and prepared paperwork meticulously

AsthepolicepiecestogetherevidenceagainstsuperstarDileepforcomplicityintheabduction
andassaultofanactress,thebigquestioniswhethertheactorwillbeletoffthehook
By Naveen Nair in Thiruvananthapuram
36July 17, 2017
States/ Kerala/ Rape Controversy
HIS is one star-studded case
that the Kerala police are
pulling all stops to get to the
bottom of. The police enthusi-
asm is understandable since it
involves Dileep, the de facto
number one of the Malayalam film
industry or Mollywood. He is suspected
of having a hand in the conspiracy that
led to the molestation of a film actress
in a moving car in Kochi. The local
media is full of speculation about the
case and its progress.
Dileep literally controls every aspect
of Malayalam cinema, from casting to
production and distribution, and hence
the police is aware that a case of crimi-
nal conspiracy against him has to be
backed by solid evidence. That alone can
warrant an arrest. He has not been
T
The End Game?
FAMILY “HERO”
Dileep’s movies got
him a boy-next-door
image but the key
ingredient of all his
movies is misogyny
and it reflects the
deep-rooted sexism
in Kerala
YouTube

India Legal 17 July 2017

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India Legal 17 July 2017