India Legal 18 June 2018

At`10lakhcrore,theNPAscamisactuallyacomplex,self-serving
exercisethathidesamuchbiggerscandal
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June18, 2018
Air India: The valuable asset no one wants
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“Our cities are not India. India lives in her seven and a
half lakh villages and the cities live upon the villages”—
MK Gandhi. “It is very sad that farmers who are sustaining
life on earth are forced to agitate for legitimate demands.”—
MS Swaminathan.
OHANDAS Karamchand Gandhi and Mankombu
Sambasivan Swaminathan are both Fathers. One
fathered the birth of independent India. The other,
the emergence of a nation self-sufficient in food
grain production following years of agricultural
stagnation and famines.
Gandhi will forever be in the news so long as there is a
world and there is an India. But today, the man hogging the
headlines and entering into the daily conversation of peasants
who may not even have heard his name before is the 1925-born
nonagenarian Swaminathan.
Farmers’ protests have broken out across the land. Last
week marked the anniversary of the death of six peasants felled
and many wounded by police bullets during a kisan rally in
Madhya Pradesh. The tillers of the soil are demanding more
remunerative prices for their produce and freedom or waivers
from billions of rupees of debt. Thousands of indebted farmers
have chosen suicide as a way out of their penury.
What has now erupted as the most volatile political issue
facing the nation has been in the making for decades. Despite
more than half of India’s 1.3 billion population making their liv-
ing from farming, their contribution to the overall economy has
been diminishing, notwithstanding increases in output. This
actually translates into a full-blown crisis and cannot be dis-
missed as what TV pundits and glib politicians are calling farm-
ers’ “issues”. A national crisis is not just an “issue” but a cata-
clysmic phenomenon with drastic political and social conse-
quences in which the very foundation of the economy can be
devastated.
Actually, the Indian economy was in a shambles well into
the late 1960s and ’70s because try as it might, the nation could
not grow enough food to feed itself. Notwithstanding planned
expenditures on irrigation and the use of modern fertilizers,
farm production dwindled to the extent that India lived a ship-
to-mouth existence depending on wheat imports from the US
on concessional terms. No imports equalled starvation.
The highest import bill for India was food grains. Late into
the 1960s, India used to spend as much as `700 crore (a mas-
sive sum given exchange rates of those years and virtually no
foreign exchange surpluses) only on import of food grains, this
being the single largest outgo on foreign exchange.
Then came Swaminathan, or “MS”, as his friends called him.
This genius—and agricultural scientist—wrought a virtual mir-
acle called the “Green Revolution” by introducing high-yielding
varieties of seeds which doubled and tripled and quadrupled
production. “Basket case” India was soon to be transformed
into a surplus country.
Without doubt, relative prosperity came to millions of farm-
ers, many of whom moved into the consuming class and rural
markets became a new area for economic penetration by small
business and organised corporate sectors. Ironically, even as
production has flourished, the lot of farmers, after the initial
urge of relative well-being, has turned to misery.
And now they have “Swaminathan” on their minds. One of
their main demands is the implementation of the “Swami-
nathan Commission Report”. This is a slogan that unites them
all, whether or not they are aware of the contents of the report
or even know who “MS” is.
For those who know him not, or have for the first time heard
that his “report” exists, or why demands for its immediate
implementation are being raised, here’s a brief sketch of this
great man.
He is a living legend. Period. According to his official bio, his
stated vision is “to rid the world of hunger and poverty”. Swami-
nathan is an advocate of moving India to sustainable develop-
ment, especially using environmentally sustainable agriculture,
sustainable food security and the preservation of biodiversity,
which he calls an “evergreen revolution”.
From 1972 to 1979, he was director general of the Indian
Council of Agricultural Research. He was principal secretary,
Ministry of Agriculture, from 1979 to 1980. He served as direc-
tor general of the International Rice Research Institute (1982–
88) and became president of the International Union for the
Conservation of Nature and Natural Resources in 1988.
In 1999, Time magazine placed him in the “Time 20” list of
most influential Asian people of the 20th century. The revival of
his name today on the roads of rural India is that he had
forseen an agrarian crisis—“farmers’ distress” as it is popularly
called in today’s headlines—many, many moons ago.
He chaired the National Commission on Farmers, and sub-
mitted five reports between December 2004-October 2006.
Following from the first four, the final report focussed on causes
of farmer distresses and the rise in farmer suicides, and recom-
mended addressing them through a holistic national policy for
farmers. The findings and recommendations encompass issues
of access to resources and social security entitlements. This
SWAMINATHAN REDUX
Inderjit Badhwar
Letter from the Editor
M
| INDIA LEGAL | June 18, 2018 3

was over 12 years ago. And most of what he predicted came
true while his recommendations gathered dust! Today, leaders
of agitating farmers’ organisations across the country have re-
discovered these reports and are demanding execution of
their recommendations.
H
ow many people, including bureaucrats in the finance
and agriculture ministries have actually read Swami-
nathan’s report or are even aware of the contents? For
their edification, I reproduce below excerpts of a summary of
the report which stressed constantly modernising farming
methods and social protection for landless farmers through
greater governmental involvement. Its focus was on faster and
more inclusive growth. If only someone had been listening! The
key issues were:
A medium-term strategy for food and nutrition security in the
country in order to move towards the goal of universal food
security over time; enhancing productivity, profitability, and
sustainability of the major farming systems of the country; poli-
cy reforms to substantially increase flow of rural credit to all
farmers; special programmes for dryland farming for farmers in
the arid and semi-arid regions, as well as for farmers in hilly
and coastal areas;
Enhancing the quality and cost competitiveness of farm com-
modities so as to make them globally competitive; protecting
farmers from imports when international prices fall sharply;
empowering elected local bodies to effectively conserve and
improve the ecological foundations for sustainable agriculture.
More than a dozen years ago, Swaminathan actually used
the term “farmers’ distress”. He wrote: “Agrarian distress has led
farmers to commit suicide in recent years. The major causes of
the agrarian crisis are: unfinished agenda in land reform, quan-
tity and quality of water, technology fatigue, access, adequacy
and timeliness of institutional credit, and opportunities for
assured and remunerative marketing. Adverse meteorological
factors add to these problems.
“Farmers need to have assured access and control over basic
resources, which include land, water, bioresources, credit and
insurance, technology and knowledge management, and mar-
kets. The NCF recommends that ‘Agriculture’ be inserted in the
Concurrent List of the Constitution.”
Some of the main recommendations include:
Distribute ceiling-surplus and waste lands; prevent diversion
of prime agricultural land and forest to corporate sector for
non-agricultural purposes. Ensure grazing rights and seasonal
access to forests to tribals and pastoralists, and access to com-
mon property resources; establish a National Land Use
Advisory Service, which would have the capacity to link land
use decisions with ecological, meteorological and marketing
factors on a location and season specific basis. Set up a mecha-
nism to regulate the sale of agricultural land, based on quan-
tum of land, nature of proposed use and category of buyer.
Out of the gross sown area of 192 million hectares, rain-fed
agriculture contributes to 60 percent of the gross cropped area
and 45 percent of the total agricultural output. The report rec-
ommended a comprehensive set of reforms to enable farmers to
have sustained and equitable access to water. Increase water
supply through rainwater harvesting and recharge of the aquifer
should become mandatory. “Million Wells Recharge” pro-
gramme, specifically targeted at private wells, should be
launched.
Substantial increase in investment in irrigation sector under
the 11th Five Year Plan apportioned between large surface
water systems; minor irrigation and new schemes for ground-
water recharge.
Apart from the size of holding, the productivity levels prima-
rily determine the income of the farmers. However, the per unit
area productivity of Indian agriculture is much lower than
other major crop-producing countries.
Substantial increase in public investment in agriculture-relat-
ed infrastructure, particularly in irrigation, drainage, land
development, water conservation, research development and
road connectivity. A national network of advanced soil testing
laboratories with facilities for detection of micronutrient defi-
ciencies. Promotion of conservation farming, which will help
farm families to conserve and improve soil health, water quan-
tity and quality and biodiversity.
Timely and adequate supply of credit is a basic requirement
of small farm families. Expand the outreach of the formal
credit system to reach the really poor and needy. Reduce
rate of interest for crop loans to 4 percent simple, with govern-
ment support.
Moratorium on debt recovery, including loans from non-insti-
tutional sources, and waiver of interest on loans in distress
hotspots and during calamities, till capability is restored. Es-
tablish an Agriculture Risk Fund to provide relief to farmers in
the aftermath of successive natural calamities. Issue Kisan
Credit Cards to women farmers, with joint pattas as collateral.
Develop an integrated credit-cum-crop-livestock-human
health insurance package. Expand crop insurance cover to the
entire country and all crops, with reduced premiums and create
a Rural Insurance Development Fund to take up development
work for spreading rural insurance.
4 June 18, 2018
Letter from the Editor
SUICIDAL NEGLECT: Farmers protests have broken out all over

Promote sustainable livelihoods for the poor by improving (i)
financial services (ii) infrastructure (iii) investments in human
development, agriculture and business development services
(including productivity enhancement, local value addition, and
alternate market linkages) and (iv) institutional development
services (forming and strengthening producers’ organisations
such as self-help groups and water user associations).
The mid-term appraisal of the 10th Plan revealed that India is
lagging behind in achieving the Millennium Development
Goals of halving hunger by 2015. Therefore, the
decline in per capita food grain availability and
its unequal distribution have serious implications
for food security in both rural and urban areas.
Several studies have shown that the poverty is
concentrated and food deprivation is acute in
predominantly rural areas with limited resources
such as rain-fed agricultural areas.
Implement a universal public distribution sys-
tem. The NCF pointed out that the total subsidy
required for this would be one per cent of the
Gross Domestic Product. Reorganise the delivery
of nutrition support programmes on a life-cycle
basis with the participation of panchayats and
local bodies. Eliminate micronutrient deficiency
induced hidden hunger through an integrated
food cum fortification approach.
Promote the establishment of Community
Food and Water Banks operated by Women Self-
help Groups (SHG), based on the principle
“Store Grain and Water Everywhere”. Help small
and marginal farmers to improve the productivi-
ty, quality and profitability of farm enterprises
and organise a Rural Non-Farm Livelihood
Initiative. Formulate a National Food Guarantee
Act continuing the useful features of the Food for
Work and Employment Guarantee programmes.
By increasing demand for food grains as a result
of increased consumption by the poor, the economic conditions
essential for further agricultural progress can be created.
In the last few years, a large number of farmers have commit-
ted suicide. Cases of suicides have been reported from states
such as Andhra Pradesh, Karnataka, Maharashtra, Kerala,
Punjab, Rajasthan, Odisha and Madhya Pradesh. The NCF has
underlined the need to address the farmer suicide problem on a
priority basis.
Provide affordable health insurance and revitalise primary
healthcare centres. The National Rural Health Mission should
be extended to suicide hotspot locations on priority basis. Set
up state-level Farmers' Commission with representation of
farmers for ensuring dynamic government response to their
problems. Restructure microfinance policies to serve as
Livelihood Finance, i.e. credit coupled with support services in
the areas of technology, management and markets.
Cover all crops by crop insurance with the village and not
block as the unit for assessment. Provide for a social security
net with provision for old age support and health insurance.
Promote aquifer recharge and rainwater conservation.
Decentralise water use planning and every village should aim at
Jal Swaraj with gram sabhas serving as pani panchayats. En-
sure availability of quality seed and other inputs at affordable
costs and at the right time and place. Recommend low-risk and
low-cost technologies which can help to provide maximum
income to farmers because they cannot cope with
the shock of crop failure, particularly those associ-
ated with high-cost technologies like Bt cotton.
Need for focused Market Intervention Schemes
(MIS) in the case of life-saving crops, such as
cumin in arid areas. Have a Price Stabilisation
Fund in place to protect the farmers from price
fluctuations. Need swift action on import duties to
protect farmers from international price. Set up
Village Knowledge Centres (VKCs) or Gyan
Chaupals in the farmers' distress hotspots. These
can provide dynamic and demand-driven informa-
tion on all aspects of agricultural and non-farm
livelihoods and also serve as guidance centres.
Public awareness campaigns to make people
identify early signs of suicidal behaviour.
Promotion of commodity-based farmers’ organi-
sations, such as Small Cotton Farmers’ Estates to
combine decentralised production with centralised
services, such as post-harvest management,
value addition and marketing, for leveraging insti-
tutional support and facilitating direct farmer-con-
sumer linkage.
Improvement in implementation of Minimum
Support Price (MSP). Arrangements for MSP need
to be put in place for crops other than paddy and
wheat. Also, millets and other nutritious cereals
should be permanently included in the PDS.
MSP should be at least 50 percent more than the weighted
average cost of production.
Availability of data about spot and future prices of commodi-
ties through the Multi Commodity Exchange (MCD) and the
NCDEX and the APMC electronic networks covering 93 com-
modities through 6,000 terminals and 430 towns and cities.
State Agriculture Produce Marketing Committee Acts
[APMC Acts] relating to marketing, storage and processing of
agriculture produce need to shift to one that promotes grading,
branding, packaging and development of domestic and interna-
tional markets for local produce, and move towards a Single
Indian Market.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
In1999,Time magazine
placedSwaminathaninthe
“Time20”listofmostinflu-
entialAsianpeopleofthe
20thcentury.Therevivalof
hisnametodayontheroads
ofruralIndiaisthathehad
forseenanagrariancrisis—
“farmers’‘distress’”asitis
popularlycalledintoday’s
headlines—many,many
moonsago.

ContentsVOLUME XI ISSUE 31
JUNE18,2018
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6 June 18, 2018
The Lies that Bind
At a mind-blowing `10 lakh crore, Non-Performing Assets are part of a complex self-serving
exercise that makes a mockery of the Insolvency and Bankruptcy Code introduced last year
LEAD
14
Free to Cohabit
In far-reaching judgments, various courts have approved of live-in
relationships among adults even if the boy is not of marriageable age
Wifely Entitlement
The Madhya Pradesh High Court has ruled that a woman has the right to know her
husband’s salary, thereby upholding a Central Information Commission ruling
COURTS
20
24

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Contact:editor@indialegallive.com
SPOTLIGHT
A Measure of
Justice
In the shocking rape and prostitution
case of a minor by influential people
in Kashmir in 2006, five men were sentenced to jail for 10 years,
though two others were acquitted
33 44
Unwilling techies forced to quit in disgrace with the help of bouncers by India’s top
companies have now formed a forum and gone to court to take them on
IT Workers, Unite!
47Hard Choices
India is caught between the US and
Russia, its old ally, and despite American
pressure, is unlikely to jeopardise this
time-tested relationship
Cover Design:
ANTHONY LAWRENCE
Silence of the Lambs
Union minister Maneka Gandhi recently drew attention to the plight of sexually abused
male children, a group more vulnerable than girls and deserving equal compassion
FOCUS
38
COLUMN
No Thoroughfare
The defence minister’s move to throw open cantonment roads to
the public has seen armed forces personnel raising valid objections
35
No Takers for Maharaja
The government’s attempt to disinvest
Air India has come a cropper as no
bids were received for it. How can the
airline be made more attractive to
potential suitors?
41
AVIATION
TECH
GLOBALTRENDS
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
Media Watch ..................49
Satire ..............................50
Incremental Progress
The Madras High Court has
ruled that it’s not mandatory
to fill up the column for
father’s name in a birth
certificate. But this would
be difficult to implement for
all records
26
By the Grace of GoD
The Delhi High Court set free two men held for smuggling garments
as they did not get the documents listing their Grounds of Detention
28
Lessons in Litigation
The Delhi High Court highlighted some issues over BCI’s powers
while giving three Amity Law School students a second chance
30
Live and Let Live
The Kerala High Court has rejected a petition for custody of a
transwoman by her mother and ruled she can live as she chooses
32

8 June 18, 2018
“
RINGSIDE
“We are considering it and
we will take people’s views
and advice...whatever
changes are to be made,
we will do that.”
—Bihar CM Nitish Kumar
on reports that prohibition
laws are being misused
“As has been stated by numerous legal scholars, I have
the absolute right to PARDON myself, but why would
I do that when I have done nothing wrong?...
—US President Donald Trump on Twitter,
referring to the Russia inquiry
“...Good that he doesn’t
take real questions...Wou-
ld have been a real embar-
rassment for us all....”
—Rahul Gandhi blaming
PM Modi of giving
pre-scripted interviews
in Singapore
“Whether the situation
needs to calm to begin a
political dialogue or the
start of a political dialogue
would help calm the situa-
tion...we need to curtail
the anger....”
—Dineshwar Sharma, the
centre’s agent for J&K
“I have worked in movies for 50
years. I’ve worked with hundreds
of actresses and not a single one—
big ones, famous ones, ones
starting out—have ever suggested
any kind of impropriety at all...."
—Veteran filmmaker Woody Allen arguing
that he should be the poster boy of the
#MeToo movement
“I ask them (BJP) to
implement ‘one nation
one election’ from 2019
itself and hold UP assem-
bly polls with the 2019
Lok Sabha elections.”
—Samajwadi Party chief
Akhilesh Yadav on holding
simultaneous polls “We lost bypolls one after another as the backward
classes are angry and that is why party candidates lost
elections in Gorakhpur, Phulpur, Kairana and
Noorpur. Public preferred SP-BSP alliance instead.”
—UP minister OP Rajbhar and president of BJP's ally
Suheldev Bhartiya Samaj Party
“The soul of India resides
in pluralism and toler-
ance... Secularism and
inclusion are a matter of
faith for us.... For us
democracy is not a gift but
a sacred trust...”
—Former president Pranab
Mukherjee at the RSS
headquarters in Nagpur
“There should have been
no arrests of Dalits in the
Koregaon-Bhima matter.
It is not right to term the
Ambedkarite activists as
Naxalites....”
—Social justice minister
Ramdas Athawale

With Chief Justice Dipak
Misra’s retirement in October
fast approaching, the Modi
government, which has been
drawing criticism from the
Opposition and even senior
judges of the apex court for
meddling in the affairs of the
higher judiciary, has begun
brainstorming on the next
Chief Justice of India (CJI).
Traditionally, the outgoing
CJI recommends the name of
his successor, based on sen-
iority among his seniormost
judges, to the centre. By this
convention, the next CJI
should be Justice Ranjan
Gogoi (left). However, Justice
Gogoi’s participation in the
unprecedented press confer-
ence held at Justice Jasti
Chelameswar’s residence ear-
lier this year has cast doubts
on whether the incumbent will
go by convention to name his
successor this time.
The political grapevine in
New Delhi is abuzz with
rumours that a top BJP
leader, a senior cabinet minis-
ter and two bureaucrats from
upper echelons have been
roped in to open backchannel
discussions with Justice
Gogoi on the succession
issue. The centre wants a
smooth transition in the
Supreme Court but also
wants to be reassured that
the next CJI would not be
“antagonistic” towards it.
10 June 18, 2018
An inside track of
happenings in Lutyens’ Delhi
As part of the BJP’s newly launched
“Sampark for Samarthan” campaign,
spearheaded by party president Amit
Shah, he has been meeting a host of
VIPs/celebrities, from Ratan Tata to
Madhuri Dixit, Kapil Dev and former army
chief Dalbir Singh Suhag and even Baba
Ramdev which is like preaching to the
converted but there is a side story there
(see “The Yogi versus the Guru”). The
meeting lasts five minutes during which he
hands over a pamphlet listing the NDA’s
achievements over the last four years,
exchanges some pleasantries and asks
the individuals and their families for their
support. He has
assigned himself 50
such celebrities/VIPs
and being Amit Shah no
one is likely to refuse
but there is one prob-
lem. All ministers, MPs
and party officials have
been asked to make a
list of 25 such “influ-
encers” and meet them
personally. The problem
is that most MPs and
office-bearers are finding it difficult to
meet the quota, more so since many big
shots are abroad on holiday to escape the
Indian summer. Sadly, the one man in the
cabinet who has the widest possible con-
tacts among VIPs and celebrities is Arun
Jaitley, who is laid up in bed for the next
six weeks at least.
MEET AND GREET
Former Central Information Commissioner
Shailesh Gandhi has raised a red flag
over attempts by the Department of
Personnel and Training (DoPT) to make
changes to the Right to Information (RTI)
Act. Recently, the DoPT had announced
that an amendment to the RTI Act is under
consideration. This has got activists all
over the country up in arms.
Gandhi has now, ironically, filed an RTI
application seeking the details of the
proposed amendments that are under
consideration, and demanded the copy
of the record giving details of the
pre-legislative consultation. In its reply, the
DoPT said that the matter regarding the
amendment of the RTI Act (2005) “is
under consideration and has not reached
finality”. Gandhi is apprehensive that the
DoPT wants to undertake the amendment
without any pre-legislative consultation.
Section 4(1) (c) of the RTI Act mandates
that the government “publish all relevant
facts while formulating important policies
or announcing the decisions which affect
the public”. Diluting the RTI Act would
make the government’s workings far
more opaque.
TRANSPARENCY FEARS
CHIEF CONCERNS

The announcement by
Yoga guru Baba Ramdev
that he was pulling out
his ambitious Patanjali
food park project from
Uttar Pradesh has
exposed a deep rift
between the two saffron
robed power hitters,
Ramdev and UP chief
minister Yogi Adityanath.
Patanjali is 95 percent
owned by its CEO
Acharya Balkrishna who
said that the company hadn’t been
able to complete the formalities
needed to qualify for the centre’s
food park scheme because the
Uttar Pradesh government had
been dragging its feet on the
paperwork. “We did not get any
cooperation from the state govern-
ment for this project. We have wait-
ed for a long time for clearances
but could not get from the state
government. Now we have decided
to shift the project,” he said.
The privately held company had
applied a year ago, when such
clearances normally take a maxi-
mum of three months. Patanjali
food products are well established
in the market and through the retail
chain, so the lack of clearance is
clearly to do with personal enmity.
The Yogi and the Guru see them-
selves as rivals, both being close
to Prime Minister Narendra Modi.
The project is estimated to involve
`6,000 crore and create 10,000
jobs. For a state government to sit
on such a proposal for so long in
fact suggests an ulterior motive.
To avoid embarrassment, frantic
last-minu-te interventions are
underway to salvage the project.
The BJP is clearly worried about its
performance in the 2019 elections
in the southern part of the country.
Karnataka was a warning and the
fierce attacks on the central gov-
ernment by former ally Chandra-
babu Naidu, is another negative.
Amit Shah has been trying to woo
YSR Congress chief Jagmohan
Reddy but it is Rajinikant that the
BJP is trying to convince to align
with them.
Last week, Rajinikant was flown
down to Delhi in a private aircraft,
where a limousine picked him up
from the tarmac and drove him
straight to 7, Race Course Road
where the Prime Minister was wait-
ing. The duo had lunch together
with an interlocutor, Krishnamurthi,
a close friend of the Tamil superstar
and a BJP supporter. Modi’s pitch
was basically that Rajinikanth
would be better off aligning with a
national party than going on his
own. The star listened but made no
commitment.
THE RAJINI EFFECT
Prime Minister Narendra Modi faced some
embarrassment during his recent trip to
Singapore. He was invited to speak before a live
audience on Asia and its future. The moderator
asked him a question on the issue and Modi
responded in Hindi, going on to speak for
almost 3 minutes. When it was the turn of the
translator, she spoke for well over 4 minutes,
reading out from a paper handed over to her by
the PM’s PR team. It then dawned on the audi-
ence that the entire exchange had been script-
ed and the translator, not being Indian, had fol-
lowed the script, adding much more than Modi
had said. Maybe he had decided not to add or
forgotten to add the extra bits which contained
facts and figures. Either way, it was a script that
got lost in translation, or gained.
GAINED IN TRANSLATION
Delhi
Durbar
THEDEEPEND
Generally, the job of the Chief Economic Adviser
(CEA) to the Government of India is like diving
into the deep end, considering the perennial
economic challenges, from jobs to dwindling
foreign investment, farmer’s woes, erratic mon-
soon and rising prices. The current CEA, Arvind
Subramanian, may be low profile but he is quite
used to the deep end—literally! He is a fitness
freak and can be seen every morning at the
India Habitat Centre’s health club, Litezone, in
the swimming pool where he spends almost an
hour. Not many have seen the CEA in a pair of
swimming trunks but those who do can testify
to how fit he keeps himself. After all, his job is to
do with figures.
THE YOGI VERSUS THE GURU

Abu Salem, once a star in Dawood Ibra-
him’s gang, was sentenced to seven
years’ rigorous imprisonment by Delhi’s Tis
Hazari Court for extorting `5 crore protection
money from a Delhi-based businessman
Ashok Gupta in 2002.
The matter being heard at the Patiala
House Court was transferred to the Tis
Hazari Court along with Judge Tarun Sehra-
wat, who was adjudicating the case at the
Patiala House Court. The order of transfer
was passed by Additional Sessions Judge
Saurabh Kulshrestra. Judge Sehrawat passed
the verdict.
One of the accused, Sajjan Kumar Soni,
had died during the trial. Salem was convict-
ed under Section 387 (putting person in fear
of death or of grievous hurt, in order to com-
mit extortion), Section 506 (criminal intimi-
dation) and Section 507 (criminal intimida-
tion by an anonymous communication) of
the IPC. The Patiala House Court, at its last
hearing, had acquitted the other accused—
Chanchal Mehta, Majid Khan, Pawan Kumar
Mittal and Mohammad Ashraf, citing lack of
evidence against them.
Courts
12 June 18, 2018
—Compiled by India Legal Team
CBI ordered to
return Jignesh
Shah’s passport
Media can’t use
the ‘D’ word
The Bombay High Court held
that it was “illegal and contrary
to law” to forcibly retain the pass-
port of businessman Jignesh
Shah, even though he was the
prime accused in the multi-crore
NSEL scam. The agency has held
the passport for over three years.
The Court ordered the agency to
return the passport to him.
The order was passed by
Justice Prakash Deu Naik who
allowed an application filed by
Shah, the founder and chairman
of 63 Moons (formerly Financial
Technologies of India Ltd), chal-
lenging a September 2017 order
of a special CBI court rejecting
his application.
The Bombay HC’s Nagpur
Bench directed the I&B min-
istry to convey the message to all
media houses to not use the word
“Dalit” in their stories or news
broadcasts. The Court said that
this was as per a notification
issued by the Ministry of Social
Justice and Empowerment to not
use the word for someone from
any particular scheduled caste.
In this atmosphere of reclai-
ming of official bungalows,
Janata Dal(U) leader Sharad
Yadav, disqualified from the
Rajya Sabha and removed
from party leadership posi-
tions for allegedly engaging
in anti-party activities, was
allowed by the Supreme
Court to hold his official
bungalow. This directive
came on a plea filed by
JD(U) Rajya Sabha member
Ramachandra Prasad Singh,
who sought the ouster of
Yadav from his official bun-
galow and the stay on the
remuneration which Yadav
is getting as a Rajya Sabha
member.
During the course of the
proceedings, Yadav told the
apex court that he will not
take any kind of remunera-
tion. The Court also directed
the Delhi High Court to
decide on the appeal by
Yadav challenging
his Rajya Sabha
membership
disqualification.
Arather tricky sports issue
came before the Delhi
High Court bench of Justice
Pratibha M Singh. In an
appeal, some national golf
players asked the Court to
look into how the Indian Golf
Union (IGU)—despite being
de-recognised on March 28,
and its president being
removed from his office on
April 20 by the Ministry of
Youth Affairs and Sports—
kept conducting trials for
international events, such as
the Asian Games to be held
in August in Jakarta.
The national squad play-
ers have contented that the
IGU receives grants from the
Ministry and hence is ans-
werable to it. The stated duty
of the Union was to select
Indian contingents for all
international competitions,
regulate, control and admin-
ister the sport of golf in India
and is covered under the
ambit of National Sports
Development Code 2011.
The body also annou-
nced trials for the World
Amateur Team Champi-
onship, scheduled in August
in Ireland in an arbitrary
manner, the plea said.
Sharad Yadav
keeps official
bungalow
De-recognised IGU dragged to
court by players
Salem gets 7
yrs for extortion

The
Scam
within
a ScamAtamind-blowing`10lakhcroreapproximately,
Non-PerformingAssetsarenotjustabout
individualsandcorporationsdefaultingonpayments
theyowebutispartofamorecomplexself-serving
exercisethatmakesamockeryoftheInsolvencyand
BankruptcyCode,introducedin2016
By Sujit Bhar
Lead/Non-Performing Assets
EEP financial scams are
not new to India. They
range from fodder scams to
the notional 2G scams and
illegal mining operations.
However, the issue of non-
performing assets (NPA) in banks has
become a huge albatross hanging from
the neck of the NDA government. Initial
estimates peg the NPA figure at an as-
tonishing `10 lakh crore, more than the
GDP of some countries and certainly
D
14 June 18, 2018
more than the annual budgets of most
states in India.
However, what is of greater concern
is that NPAs are not just to do with bad
business decisions or the propensity of
some promoters to decamp with public
monies, but, as it turns out, there is
another method to this madness. It
becomes clear when the reconstruction
of the company, through the new Na-
tional Company Law Tribunal (NCLT)
yields a new “buyer” that bids for higher
gains. Within such bidding consortia—
if checked for facts—will often be found
the original promoter, who had refused
to pay his dues in the first place. His
return to legality can be sanctified
through loopholes that exist within leg-
islations, even after amendments.
Worked in flashback style, one can
start at May 19, when Tata Steel ann-
ounced its acquisition of Bhushan Steel
Ltd (BSL), a debt-laden steel major
against whom insolvency proceedings

Nirav Modi who flee the country, the
disease is beyond treatment and legal
and criminal processes have to be initi-
ated to save connected assets and stake-
holders. However, it was thought that
the disease was still treatable when the
government two years ago brought in
the Insolvency and Bankruptcy Code
which was to have provided a logical
exit route. It was allied to the account-
ing processes that identified and set
aside unpaid dues as NPA.
T
he innovative approaches of
Indian promoters have brought
the inadequacies of the Code to
the fore, with illegitimate activity, and
not just bad business decisions or a bad
market environment having destroyed
the business. Promoters who have huge
unpaid dues to their names are return-
ing to try and reclaim their companies,
presenting a different “front” or a con-
glomerate of investors with a name that
is technically acceptable to the bankers
or insolvency experts. In the process,
they want to pay a pittance to regain
control, forgetting the massive NPA.
The issue had become so big that the
government brought in an ordinance to
amend the Code and specifically deny
such promoters—who are wilful default-
ers—a return route. The amendment too
(it has been formally incorporated into
the Code by parliament), it seems, has
fallen short. The ordinance was promul-
gated late last year and Section 29A was
added to the Code. The relevant portion
says: “A person shall not be eligible to
submit a resolution plan if such person,
or any other person acting jointly with
such person, or any person who is a pro-
moter or in the management control of
such person, is an undischarged insol-
vent.” It also makes sister concerns and
corporate guarantors ineligible to bid
for these companies.
However, there are legitimate win-
dows open, still, for the original promot-
ers. They have to pay back the dues, in
which case the NPAs are transformed
into standard assets. This the defaulting
promoters would not do, because in
had been initiated under the Insolvency
and Bankruptcy Code (IBC), last year.
While the Tatas’ `32,500 crore bid,
accepted by the NCLT, gave the compa-
ny a notional controlling stake of 72.65
per cent in BSL, they were to soon dis-
cover that controlling stake did not nec-
essary mean they were in control. When
company officials wanted to assert their
presence at BSL’s Dhenkanal plant in
Odisha, there was resistance from peo-
ple loyal to the original promoters. This
has, in turn, been causing problems in
the complete takeover, forcing the Tatas
to lodge a complaint with the NCLT.
To understand why this was happen-
ing, one needs to take a look at the larg-
er picture. Bhushan Steel is one of the
hundreds of companies which took
thousands of crores in loans and then
failed to pay back. An NPA on any
financial platform is a symptom of a big-
ger, hidden malaise. When the malig-
nancy grows to be a Vijay Mallya or a
Anthony Lawrence

“29A. A person shall not be eligible to
submit a resolution plan, if such person,
or any other person acting jointly or in
concert with such person—
is an undischarged insolvent;
is a wilful defaulter in accordance with
the guidelines of the Reserve Bank of
India issued under the Banking
Regulation Act, 1949;
has an account, or an account of a
corporate debtor under the management
or control of such person or of whom
such person is a promoter, classified as
non-performing asset in accordance with
the guidelines of the Reserve Bank of
India issued under the Banking Regu-
lation Act, 1949 and at least a period of
one year has lapsed from the date of
such classification till the date of com-
mencement of the corporate insolvency
resolution process of the corporate
debtor: Provided that the person shall be
eligible to submit a resolution plan if
such person makes payment of all over-
due amounts with interest thereon and
charges relating to non-performing
asset accounts before submission of
resolution plan;
has been convicted for any offence
punishable with imprisonment for two
years or more;
possible, the loophole could possibly
have been capped. “There will always be
loopholes in laws,” senior corporate law-
yer Vidender Ganda told India Legal.
“The government has been trying to seal
the gaps, but a return route for promot-
ers has not really been denied.”
The BSL case is a classic example of
why the Code has failed to tame Indian
promoters. BSL had been declared a
stressed asset with unpaid dues amount-
ing to `56,000 crore and Tata Steel won
the bid in an insolvency auction. But
when the bidding process was still on,
BSL promoter Neeraj Singal had said
that promoters put their lives into
building a company, meaning that their
rights remain immutable. The law and
the markets would disagree. But the
Tatas’ first move to take control of the
newly acquired plant was met with
stiff resistance. Hence the Tatas
complained.
The objective of the Singals was to
wait for the outcome of another similar
case where the promoters are trying to
wrest back control despite huge unpaid
dues. That complicated backdoor entry
CodeAmendment–29A
The Insolvency And Bankruptcy
Code (Amendment) Act, 2017
not paying the dues in the first place,
they had clearly shown their intention to
reroute massive funds into their pockets
(mostly offshore accounts).
When the NCLT accepts an insolven-
cy petition, the return routes narrow
down. And that is when the reverse bid-
ding process (a backdoor entry) begins.
The ordinance wanted to address this
part, but the new Section 29A (see box)
actually details cases in which the pro-
moter may not be allowed to return. If it
had detailed the parameters only thro-
ugh which a return would have been
forbesindia.com Anil Shakya
16 June 18, 2018

is disqualified to act as a director
under the Companies Act, 2013;
is prohibited by the Securities and
Exchange Board of India from trading in
securities or accessing the securities
markets;
has been a promoter or in the man-
agement or control of a corporate debtor
in which a preferential transaction,
undervalued transaction, extortionate
credit transaction or fraudulent transac-
tion has taken place and in respect of
which an order has been made by the
Adjudicating Authority under this Code;
has executed an enforceable guaran-
tee in favour of a creditor in respect of a
corporate debtor against which an appli-
cation for insolvency resolution made by
such creditor has been admitted under
this Code;
has been subject to any disability,
corresponding to clauses (a) to (h),
under any law in a jurisdiction outside
India; or
has a connected person not eligible
under clauses (a) to (i).
Explanation.—For the purposes of this
clause, the expression “connected per-
son” means—
(i) any person who is the promoter or in
the management or control of the resolu-
tion applicant; or
(ii) any person who shall be the promoter
or in management or control of the busi-
ness of the corporate debtor during the
implementation of the resolution plan; or
(iii) the holding company, subsidiary
company, associate company or related
party of a person referred to in clauses
(i) and (ii)...
is being attempted by the Essar Group,
promoters of Essar Steel, which collec-
tively owes various banks upwards of
`43,000 crore. Recently Essar sold its
refinery business to Russian oil giant
Rosneft. Though Essar retains the dis-
tribution network, it is a relatively small
business. However, during his prolonged
negotiations for the deal, the Ruia bro-
thers of Essar developed very good con-
tacts with Russian business interests
which they used to good effect. Steel had
been Essar’s core competency, till the
company spread itself thin and the
world steel market plummeted. The
NCLT has been looking into proposals
from ArcelorMittal, the world’s largest
steel maker, the Tatas and even Vedanta.
Of these, ArcelorMittal, who don’t have
a plant in India, looked the best bet.
However, the Ruias seem determined
to get back what they think is theirs. It
is being said that a consortium of Rus-
sian bank VTB and Hong Kong-based
SSG Capital Management is being
formed to present a bid and the Ruias
would have a small stake in that consor-
tium. That is because despite the
amendment to the code, the door has
been left slightly ajar for a promoter to
return, should he so desire. All eyes are
now on how the offer from the consor-
tium will be entertained by the NCLT or
the courts. “If somebody can weave
around the ten-odd disqualifications
mentioned in the amendment (see box)
then he/she can be back,” senior Ganda
told India Legal. “These are early days of
the Code as well as the amendment—
approximately 270 days. The authorities
have not been able to put in a proper
administration yet and there will be
HOUDINI ACTS
(From far left) The Ruia brothers,
Shashi (left) and Ravi; the Bhushan
Steel Plant at Ghaziabad; Nirav Modi;
Mehul Choksi; Vikram Kothari
jijomurali.blogspot.comamong.
facebook

changes initiated as experience grows.”
Technically, if the consortium’s bid
succeeds, the it could agree to hand over
operational control to the Ruias—who
took massive loans in the name of the
company and did not bother to pay
back. That means that technically, while
around `43,000 crore will remain unre-
alised by the banks, the Ruias would
have the company back by investing a
much lower amount in the consortium.
There could be no greater irony than the
consortium getting an AA rating. By
association, the Ruias too would gain in
rating and the banks would then have
no problem advancing more loans
to them.
Then there is the case of JSW and
the Jindals, wanting to take control of
the bankrupt Monnet Ispat. Within this,
another issue has come to the fore. It is
The NPAs share among Indian banks are almost as skewed as wealth in our society. While the wealth of only 57
Indian billionaires is equal to the entire wealth of the bottom 70 percent of the country, the RBI has said in a reply
to an RTI application that just 12 companies have ‘cornered’ 25 percent of the gross NPAs. All are in the bankrupt-
cy zone and their cases are being handled by the National Company Law Tribunal (NCLT).
Skeweddistribution
Overall
NPA
Rs 10 lakh crore
or
$149.6 Billion
BHUSHANSTEELLTD
`44-56,000
SBI (lead banker)
LANCOINFRATECHLTD
`44,364
IDBI
ESSARSTEELLTD
`37-43,000
SBI
BHUSHANPOWER&
STEELLTD
(sisterconcernofBhushanSteel)
`37,248
PNB
ALOKINDUSTRIES
`22,075
SBI
AMTEKAUTOLTD
`14,074
SBI
MONNETISPATAND
ENERGYLTD
`12,115
SBI
ELECTROSTEELSTEELS
LTD
`10,273
SBI
ERAINFRA
ENGINEERINGLTD
`10,065
Union Bank
JAYPEEINFRATECHLTD
(subsidiaryofJaypeeGroup)
`9,635
IDBI Bank
ABGSHIPYARDLTD
`6,953
Standard Chartered Bank
JYOTISTRUCTURESLTD
`5,165
SBI
Figures in Crores
Three times the
Indian defence
budget
(now at Rs
2,95,511 crore)
GDP of the state of Kazakhstan
($ 137 billion, as per the World
Bank’s 2016 estimate)
Onthecorporatedefaulters,thetoponesare:BankNPAs:Howbigisit?
UNI
18 June 18, 2018

the Code amendment’s “connected peo-
ple” section. In the second week of May,
the Competition Commission of India
(CCI) cleared JSW Steel’s (a consortium
led by it) bid for the company, saying
there were no competition issues that
could hinder the takeover. But the tweak
in the ordinance, which says that back-
door entrants would be clubbed under
the definition of “connected people”, has
come into the picture and it is being
alleged that Jindal is trying to get hold
of Monnet through the back door. Sajjan
Jindal, chairman JSW Group, has said
that Section 29A-c shows the “immatu-
rity” of the new bankruptcy laws and
expects it to be dropped, but there has
been criticism that this is a backdoor
entry as Jindal’s sister Seema is married
to Monnet Ispat’s current promoter
Sandeep Jajodia.
While the above are some of the big
boys of the Indian corporate world,
smaller players have always bought back
into their own, asset-stripped compa-
nies. With promoter shareholding of
listed companies sometimes shooting up
beyond the statutory 75 percent, there
remain several options for him/her to
raise further funds without diluting
shareholding.
One such is deep debt, either by
pledging shares to banks or restructur-
ing outstanding loans. The buy-back
costs far less for the promoter (than
paying back dues) and a pliable bank
can easily shift dues as NPAs and rene-
gotiate with the same promoter.
The Modi government says it is
determined to break this unholy
alliance, but for that to happen, it will
take more than the IBC in its current
form to prevent what is actually the
biggest scam happening in India, mostly
on legal footing.
T
hese scams are well-planned.
According to a senior official of a
security establishment, who
remains anonymous, “these are pre-
conceived, meticulously planned, with
active participation from bank officials,
and even external auditors.”
How does this work? “It starts from
the blueprint stage. For example, each
item of machinery to be purchased—
imported, or from domestic markets—is
over-invoiced. In this age of internet con-
nectivity, it is easy to cross-check the
actual price of an item even in a foreign
market, but due diligence is never car-
ried out, not even by auditors later.
If, for example, a range of machinery
costs `1,000 crore, the invoices raised
will be to the tune of `3,000 crore, and
tenders floated will receive replies from
interested parties abroad who will be
willing to deliver the right price, with a
kickback. The bank consortia in India
takes a cut (bribe) from the proceeds
and a huge amount is transferred
abroad. Hence, from the very beginning,
`2,000 crore would be quickly siphoned
off by the promoters.”
How does that affect business? It will
be a double delight for the promoter.
“With over-invoicing, the net worth of the
company, right from the word go, will be
grossly overstated. Hence, when the
bank loans money to the company
based on such an inflated asset value,
the loans will be higher. The entire prem-
ise of the loan is based on lies,” he said.
“Think of Vikram Kothari and Rahul
Kothari, of Rotomac Global Pvt Ltd,
makers of pens,” he said. “How much
capital infusion do you think is needed
to make ball point (or even gel) pens?”
According to the CBI’s transit remand
copy of February 2018, the complaint
was filed by Brijesh Kumar Singh, De-
puty General Manager/Regional Mana-
ger Bank of Baroda, Regional office
Kanpur. The document says that the
promoters had “cheated” Bank of
Baroda of `456.63 crore, and also “not
repaid loan amount to six other banks
(to the tune of) `2,919.39 crore.”
“The very fact that such a huge
amount was given as loan by the banks
(six of them) for a pen factory is indica-
tive of the rot within the system,” he
said. “The net asset value of the entire
operation could not have been any-
where near that figure.” he added.
Lawyer Devender Ganda says:
“Think of the monies loaned (through
Letters of Understandings) to diamond
merchant Nirav Modi. What was the col-
lateral offered, when all Modi has are
rented shops? Most of Modi’s assets
are beyond the borders of India. Under
which law would Indian banks reclaim
Modi’s assets that are beyond the juris-
diction of Indian courts?”
“The system is rotten. There is no
accountability anywhere, no fear of law.”
says a India Legal source.
That’s the Indian way.
Howitworks
UNI

Courts/ Live-in Relationships
20 June 18, 2018
OR both boys and girls, the
attainment of majority at the
age of 18 is a significant mo-
ment. It endows them with
the right to choose whom
they will live with, unper-
turbed by the control hitherto exer-
cised by their parents or guardians.
However, as the minimum age for mar-
riage is 18 for girls and 21 for boys, this
has led to some incongruity: while girls
are free to marry whom they want once
they become majors, the boys will nec-
essarily have to wait for three years
more. The legal status of the live-in
relationship during this interlude,
therefore, poses some difficulty to be
reconciled by courts.
Two recent judgments, the first by
the Supreme Court, and the other by the
Kerala High Court, have approved live-
in relationships of adults who want to
marry, even if the boy is not of the legal-
ly marriageable age of 21 years.
In the first case, Nandakumar v the
State of Kerala, Justices AK Sikri and
Ashok Bhushan of the Supreme Court
held on April 20 that two adults, even if
they are not competent to enter into
wedlock, have the right to live together.
“It would not be out of place to mention
that ‘live-in relationship’ is now recog-
nised by the Legislature itself, which has
found its place under the provisions of
the Protection of Women from Domes-
tic Violence Act, 2005,” Justice Sikri
wrote in his judgment.
In this case, the appellant, who was
less than 21 years, had married a girl,
who was 19, against the wishes of her
father, who filed a habeas corpus peti-
tion seeking her production in the Ker-
ala High Court. The High Court, finding
that the appellant was below the mar-
riageable age of 21 years on the date of
marriage, held that a valid wedlock was
not solemnised between them. A certifi-
cate issued by the local authority under
Born
Free,
Live
Free!
Infar-reachingjudgments,courtshaveapprovedofsuchrelationshipsamongadultsevenifthe
boyisnotofmarriageableage
By Venkatasubramanian
F
Anthony Lawrence

either the minor husband or minor wife.
The petition under Section 3 of the Act
may be filed by a minor contracting
party through his or her guardian or
next friend along with the child mar-
riage prohibition officer, or at any time
but before the child filing the petition
completes two years of attaining majori-
ty, that is, 20 years.
In the second case, decided by a
bench of the Kerala High Court on June
1, an 18-year-old boy was allowed to live
with a 19-year-old girl, overcoming con-
cerns expressed by the girl’s father that
the boy was not of marriageable age
and, therefore, any child born to them,
would be illegitimate.
The High Court noted that the girl
had attained puberty and has the capac-
ity to marry both under Section 251 of
Mahomedan Law as well as the provi-
sions of the PCMA. The High Court
held that the marriage of the boy, who
was not yet 21, is voidable at his
instance under Section 3 of the PCMA
on the ground that he was a “child” at
the time of marriage.
The High Court further noted that
the girl was living with the boy out of
her own volition and she, being the
major, has a right to live wherever she
wants to as is permissible or to move as
per her choice. “The detenue (the girl)
has every right to live with the fourth
respondent (the boy) even outside her
wedlock since live-in relationship has
been statutorily recognised by the
Legislature itself,” the High Court
observed. For this, the High Court
relied on the Supreme Court’s April 20
decision in Nandakumar v State
of Kerala.
The High Court bench of Justices V
Chitambaresh and KP Jyothindranath
observed as follows: “We cannot close
our eyes to the fact that live-in relation-
ship has become rampant in our society
and such living partners cannot be
the Kerala Registration of Marriages
(Common) Rules, 2008, was also not
produced, the High Court found.
Therefore, it entrusted the custody of
the girl to her father.
D
isagreeing with the High Court,
the Supreme Court found merit
in the submission that as the
girl was not a minor daughter of her
father, her custody could not be entrust-
ed to him. The Supreme Court further
reasoned: “It cannot be said that merely
because Appellant No. 1 (the minor hus-
band) was less than 21 years of age,
marriage between the parties is null and
void. Appellant No. 1 as well as
Thushara (the girl) are
Hindus. Such a marriage is
not a void marriage under
the Hindu Marriage Act,
1955, and as per the provi-
sions of Section 12, which
can be attracted in such a
case, at the most, the mar-
riage would be a voidable
marriage.”
Section 5 of the Hindu
Marriage Act states that a
marriage may be solem-
nised between any two
Hindus if the bridegroom
has completed 21 years and
the bride, 18 years at the
time of marriage. Section 12
of the Act states that any
marriage so solemnised, shall be void-
able and may be annulled by a decree of
nullity, on any of the specified grounds.
Interestingly, none of the grounds speci-
fied under this provision deal with the
marriageable age of either the bride or
the bridegroom.
The Prohibition of Child Marriage
Act, 2006 (PCMA), however, makes
child marriage voidable at the option of
JusticesAKSikriandAshokBhushanof
theSupremeCourtheldon
April20thattwoadults,eveniftheyare
notcompetenttoenterintowedlock,
havetherighttolivetogether.
SHOWING THE WAY
The Supreme Court upheld the validity of
Hadiya’s (above left) marriage to Shafin
Jahan, setting an important precedent
facebook

22 June 18, 2018
separated by the issue of a writ of
habeas corpus, provided they are major.
The Constitutional Court is bound to
respect the unfettered right of a major
to have live-in relationship even though
the same may not be palatable to the
orthodox section of the society. We are,
therefore, constrained to dismiss the
writ petition declaring that the detenue
is free to live with the fourth respondent
(the boy) or marry him later on his
attaining the marriageable age.”
C
ommon to both these cases is the
precedent set by the Supreme
Court in the recent Hadiya case.
Here, a Hindu girl, Akhila aka Hadiya
married a Muslim boy, Shafin Jahan,
forcing her father, KM Asokan, to seek
her custody first from the Kerala High
Court and later from the Supreme
Court, alleging “love jihad” and conver-
sion through undue influence. In an
unprecedented intervention, the High
Court set aside their marriage and
entrusted her custody to her parents
even though both the boy and the girl
were within marriageable age.
Indicting the parents’ use of the writ
of habeas corpus to secure the custody
of adult daughters, the Supreme Court
held in the Hadiya case: “Thus, the piv-
otal purpose of the said writ is to see
that no one is deprived of his/her liberty
without sanction of law. It is the pri-
mary duty of the State to see that the
said right is not sullied in any manner
whatsoever and its sanctity is not affect-
ed by any kind of subterfuge. The role of
the Court is to see that the detenue is
produced before it, find out about
his/her independent choice and see to it
that the person is released from illegal
restraint. The issue will be a different
one when the detention is not illegal.
What is seminal is to remember that the
song of liberty is sung with sincerity and
the choice of an individual is appositely
respected and conferred its esteemed
status as the Constitution guarantees. It
is so as the expression of choice is a fun-
damental right under Articles 19 and 21
of the Constitution, if the said choice
does not transgress any valid legal
framework. Once that aspect is clear, the
inquiry and determination have to come
to an end.”
The Supreme Court held in this case
that the High Court had unwarrantably
taken exception to their marriage forget-
ting that parental love or concern can-
not be allowed to fluster
the right of choice of an
adult in choosing a man
to whom she gets mar-
ried. The Supreme
Court added that social
values and morals
have their space, but
they are not above con-
stitutionally guaranteed
freedom. The Supreme
Court made it clear that
sans lawful sanction,
the centripodal value of
liberty should allow an
individual to write
his/her script. “The
individual signature is
the insignia of the con-
cept,” it emphasised.
The Supreme Court, disapproving of
the tendency to take decisions on behalf
of adult individuals, observed: “The
courts cannot, as long as the choice
remains, assume the role of parens
patriae. The daughter is entitled to
enjoy her freedom as the law permits
and the court should not assume the
role of sentiment of the mother or the
egotism of the father. We say so without
any reservation.”
The Supreme Court, during the hear-
ing of the Hadiya case, dismissed the
centre’s suggestion that an adult woman
may be susceptible to indoctrination
and deprogramming by vested interests
backed by a well-oiled machinery and,
therefore, needs to be guided in her
choice of her spouse.
That the Supreme Court took more
than four months to grant Hadiya her
freedom from the clutches of her par-
ents, and even more time to decide that
she, as a major, has a right to choose her
spouse, shows that it is not easy for our
courts to resolve such issues. Once
resolved, however, they become valuable
precedents in settling cases giving rise to
similar, if not identical, issues.
TheKeralaHighCourtdecidedonJune1
thatan18-year-oldboybeallowedtolive
witha19-year-oldgirl,despiteconcerns
expressedbythegirl’sfatherovertheboy
notbeingofmarriageableage.
Courts/ Live-in Relationships
wikimedia.org

Courts/ Husband’s Salary
24 June 18, 2018
N a landmark judgment, the
Madhya Pradesh High Court has
ruled that a woman has the right to
know the remuneration of her hus-
band and that she can’t be denied
this information by considering her
a third party under the Right to Infor-
mation (RTI) Act, 2005.
With this ruling on May 15, a High
Court bench of Justices SK Seth and
Nandita Dubey allowed Bhopal-based
petitioner Sunita Jain, a non-practising
lawyer, to seek higher maintenance from
her estranged husband, a senior officer
with the state-run Bharat Sanchar
Nigam Limited.
The petitioner had pleaded that her
estranged husband, Pawan Kumar Jain,
was drawing a salary of `2.25 lakh per
month, but was giving her only `7,000
as monthly maintenance. In her mainte-
nance case, she had filed an application
under Section 91 of the CrPC for a
direction to her estranged husband to
submit his pay slip for determination of
proper maintenance amount, which was
earlier rejected by a trial court. The
High Court has now asked BSNL to pro-
vide Pawan’s pay slip to the petitioner.
The judgment has far-reaching
implications because it upholds the
Central Information Commission’s
(CIC) ruling in January 2014 that
wives of all government servants have
the right to know the salary of their
husbands.
M Sridhar Acharyulu, Information
Commissioner, had said that “each
spouse in a marriage has the right to
learn about the other’s salary particu-
lars for maintenance purposes”. He
had asked all government offices to
make available the details of their
employees’ salary in
the public domain
as mandated
under the RTI
Act’s suo motu disclo-
sure provision.
Sunita Jain’s counsel KC
Ghildiyal said that after a district
court had rejected his client’s plea that
her husband produce pay slip, she had
filed an RTI application in the BSNL
office to get his salary details but she
was denied the information. She took
the matter to the Central Information
Commission (CIC), which, on July 27,
2007, asked the BSNL Central Public
Information Officer to furnish the
required details.
Pawan, however, challenged the CIC
order before a single bench of the
Madhya Pradesh High Court, which set
it aside in March 2015. The bench
ruled in favour of the husband on the
ground that salary of a person can’t be
disclosed to anyone under the Right to
Privacy. Sunita then moved the double
bench of the High Court, which ruled in
her favour.
The double bench said that the Sup-
reme Court order in Girish Ramchandra
Deshpande vs CIC, on the basis of which
the single bench had quashed the CIC
order, was different in nature. It ruled
that in this case, it was the wife who
wished to know the exact salary of her
husband and she has a right to it.
The bench in its judgement deliber-
ated on the difference between Section
8(1)(J) and Section 4(1)(b)(x) of the RTI
Act. Section 8(1)(J) stipulates:
Paying
for the Slip
Inaninterestingdevelopment,theMadhyaPradeshHighCourt
hasruledthatawifehastherighttoknowherhusband’s
salary,therebyupholdingaCICrulinginJanuary2014
By Rakesh Dixit in Bhopal
I
Anthony Lawrence

“Notwithstanding anything contained in
this Act, there shall be no obligation to
give any citizen information which re-
lates to personal information the disclo-
sure of which has no relationship to any
public activity or interest, or which
would cause unwarranted invasion of
the privacy of the individual unless the
Central Public Information Officer or
the State Public Information Officer or
the appellate authority, as the case may
be, is satisfied that the larger public
interest justifies the disclosure of such
information.”
Section 4(1)(b)(x), on the other
hand, obliges public authorities to dis-
play in public domain the monthly
remuneration received by each of its
officers and employees.
T
he justices observed: “While deal-
ing with the Section 8(1)(J) of the
Act, we cannot lose sight of the
fact that the appellant (Sunita Jain) and
the respondent No 1 Pawan Kumar Jain
are wife and husband and as a wife she
is entitled to know what remuneration
the respondent No 1 is getting. The
present case is distinguishable from the
case of Girish Ramchandra Deshpande
(supra) and therefore the law laid down
by their Lordships in the case of Girish
Ramchandra Deshpande (supra) are not
applicable in the present case”.
In a similar case, the CIC had ruled
in January 2014 that wives of govern-
ment servants have a right to know
salary particulars of their husbands. The
ruling came in response to a petition by
Jyoti Seharawat who had sought to
know the salary of her husband, an
employee in the home department of
the Delhi government.
The home department refused to
share the information, citing a letter
from her husband where he had written
that his salary slip could not be dis-
closed to “a third party”. The petitioner
then moved the CIC for redressal. Ta-
king note of her petition, Acharyulu
warned the home department that “such
denial of information will be wrongful
and could incur penalty”.
The information commissioner clari-
fied that details about a government
employee’s salary is no third party infor-
mation and these have to be voluntarily
disclosed under Section 4(1)(b)(x) of the
RTI Act.
He said that the salary paid to the
public authority was sourced from the
tax paid by the people in general and it
had to be disclosed mandatorily under
the RTI Act.
The CIC has already made it clear
that “as per the provisions of various
personal laws applicable to people of
different religions, the husband as
an earning member of the family has
a legal duty to maintain the wife and
children. It is an undisputed fact that
the dependents such as wife and chil-
dren can seek a direction from courts
of justice”.
It further said: “Even after the
divorce, the family law ordains that hus-
band has a duty to provide for necessary
maintenance of the wife and children.
Section 125 of the CrPC mandated that
husband has a general duty to maintain
wife and children. The wife’s entitle-
ment to know the salary particulars of
her husband gets further fortified by all
these legal provisions.”
The CIC has also issued a general
warning that denial of information
about salary might amount to denial of
justice with malafide intentions either to
harass the spouse, delay the process of
justice, avoid payment of money neces-
sary for maintenance through giving
wrong information or denying correct
information to the court of law. The
public authority or its public informa-
tion officers or Appellate Authority can-
not inadvertently be a party to this
malafide denial of justice to the spouse.
UPHOLDING WOMEN’S RIGHTS
Information Commissioner, MS Acharyulu
Inasimilarcase,theCentralInformation
CommissionhadruledinJanuary2014
thatwivesofgovernmentservants
(below)havearighttoknowsalary
particularsoftheirhusbands.

Courts/ Paternity Issue
26 June 18, 2018
RECENT judgment of the
Madras High Court will
have far-reaching conse-
quences, but may be diffi-
cult to implement. The
Court had ruled in a case
of artificial insemination that it’s not
mandatory to fill the father’s name in a
birth certificate. It directed concerned
authorities to issue a fresh birth certifi-
cate with the column asking for father’s
name to be kept blank. While feminists
and some women lawyers hail this judg-
ment, a majority of lawyers and com-
mon citizens feel this judgment will be
difficult to implement.
The case related to petitioner Ma-
dhumitha Ramesh who was married to
a man called Charan. She later got legal-
ly separated from him. After her divorce,
she conceived a child through artificial
insemination and delivered. While get-
ting discharged from the hospital, she
was issued a birth certificate by the
Tiruchi Corporation (the competent
authority to issue birth/death certifi-
cates), where the father’s name was
filled as Manish Madanpal Meena, a
male friend of Madhumitha’s who
helped her during her delivery. This was
done despite Madhumita making sever-
al requests to the authorities to keep this
column blank.
Challenging this,
Madhumitha approached
the Madurai bench of the
Madras High Court and
on November 13, 2017, Justice R
Mahadevan passed an order directing
her to file a fresh representation before
the concerned revenue divisional officer
within two weeks from the date of
receipt of a copy of the order. Justice
Mahadevan also said that the concerned
authority shall pass appropriate orders
within two weeks by taking into consid-
eration the pitiable condition of the
petitioner (Madhumitha).
When there was no positive response
from the Tiruchi Corporation, Madhu-
mitha once again approached the Madu-
rai Bench of the Madras High Court. Af-
ter hearing her case, Justice MS Ramesh
said in his order: “On the factual side,
affidavits of the petitioner’s former hus-
band and her friend (who was wrongly
identified as the father of the child)
asserting that the child was not biologi-
cally their daughter were also submitted.
Madhumitha also swore a similar affi-
davit.” He directed the chief health offi-
cer to delete the name of the father
which had been erroneously entered.
Justice Ramesh also quoted Section
15 of the Registration of Births and
Deaths Act, 1969 and the corresponding
state rules in Tamil Nadu. These provi-
sions deal with the correction or cancel-
lation of entry in the register of births
and deaths. The judge also specifically
restrained the concerned authority from
insisting on another name for the moth-
er’s friend. The judge added the follow-
ing: “I have made the above observa-
tions consciously in order to restrain the
first respondent, namely, ‘The Assistant
Commissioner, K Gopalapuram Circle,
Trichy Corporation’.”
Feminists and a section of lawyers
and social activists hailed the judgment.
Jyothi Sarkar, a feminist and social
rights activist, told India Legal: “This
judgment definitely advances the activi-
ties of progressive social groups, espe-
cially of feminists. This case is an un-
usual paternity case and the judgment
strengthens the spirit of earlier rulings
by several High Courts in India and also
the Supreme Court. For single women,
this is great news.”
A few lawyers cite a famous ruling of
Papa Don’t
Preach
Inaprogressivejudgment,theMadrasHighCourt
hasruledthatit’snotmandatorytofillthefather’s
nameinabirthcertificate.Butexpertssaythis
wouldbedifficulttoimplementforallrecords
By R Ramasubramanian
in Chennai
A

the Supreme Court in 1999. Latha Rao,
an advocate in the Madras High Court,
said: “In that case, a woman, Githa
Hariharan, was the petitioner. She chal-
lenged RBI’s rejection of an application
where she wanted to make investments
in her son’s name (with her as the ‘nat-
ural guardian’). However, the RBI cited
Section 6 of the Hindu Minority and
Guardianship Act, 1956, which said the
‘natural guardian’ was the father.
In her petition, Hariharan argued
that the provision discriminated against
women in the matter of guardianship
rights over her children. In its ruling,
the Supreme Court asserted the pre-
eminence of the child’s welfare in all
considerations, and held that in this
instance, the mother was the ‘natural
guardian’.
Rao further added that though there
would be difficulties for Madhumitha
while bringing up her child, there has to
be a beginning. “As the child grows,
Madhumitha will face many problems.
One is legal and the second is the cruel
face of society. Nasty questions could be
raised about the father of the child. The
curiosity and sadistic pleasure of society
in this case will generate a lot of heart-
burn for both the child and the mother,”
said Rao. Both, she said, would have to
stand up to society and that will encour-
age others facing similar problems. “If I
am in Madhumitha’s position, I, too,
would do what she is doing now and
change society’s perceptions,” she said.
And that is what even well-estab-
lished lawyers are saying—that the mo-
ther and child will face a Herculean
task. Manu Sundaram, a lawyer in Ma-
dras High Court, said: “This is indeed a
great judgment. But there are practical
problems which both the mother and
child will face. You can’t move even an
inch if you refuse to fill the father’s
name. Whether it is getting an Aadhaar
card, ration card, buying an insurance
policy, getting a driving license, passport
or a PAN card, the problems are many.”
He mentions the practical difficulties
of many matters now going online. Take
for example, passport. “While applying
online, one has to fill the name of the
father in a particular column. If that is
kept blank, one cannot go to the next
page and that will be the end of the
matter,” said Sundaram. “Changes in
such matters can be done only after
Parliament enacts a law which grants
citizens the option to keep this column
blank. It cannot be compulsory. Also, all
computers and software must be upgra-
ded to accept this change.”
Another lawyer said: “To get any
card, the father’s name is a must. If it
isn’t filled up, the application will be
rejected. You will once again have to
come to the High Court with a fresh
petition and argue the case by citing
Justice MS Ramesh’s order. And the
inherent danger is that you cannot
expect or get the same order which was
delivered by him. That is a subjective
matter and left to the discretionary pow-
ers of judges. You may not get a positive
and progressive judgment such as the
one from Justice Ramesh.”
Madhumitha may have won the bat-
tle, but certainly not the war.
FormotherslikeMadhumithawhose
childrenareconceivedthroughdonors
anddonothavefatherseveninname,
therearedifficulties,bothfromthelegal
aswellasthesociologicalpointofview.
Anthony Lawrence
UNI

28 June 18, 2018
HE Delhi High Court recently
quashed the detention order
of two persons, arrested
under the Conservation of
Foreign Exchange and Pre-
vention of Smuggling Activities Act,
1974 (COFEPOSA Act). The Court ruled
that the Relied Upon Documents
(RUD)—which explains the Grounds of
detention (GoD)—were not supplied to
them by the Detaining Authority(DA), a
must under the COFEPOSA Act.
Holding the detention as illegal and
unconstitutional, the bench of Justices
Vipin Sanghi and PS Teji said that “it is
well settled law that RUDs are an inte-
gral part and parcel of the GoD. The
Court held that the documents pertain-
ing to the case were shown to the de-
tenues well beyond the stipulated time
and the petitioners contended that they
were merely provided the soft copies of
the concerned documents on CDs, with-
out the relevant hardware to read CDs—
either a CD player, or a desktop comput-
er, or a laptop. It felt that the petition-
ers’ right to make effective representa-
tions against their detention at the earli-
est was denied.
The Court’s decision came on the
pleas of duo Dharaneesh Raju Shetty
and Sahil Mohd Zafar who were de-
tained allegedly for the smuggling of
readymade garments and evading duty.
They contended that the RUD was in
the form of a compact disk with pictures
of the WhatsApp chat between the peti-
tioners and one other person.
The counsel for the petitioner con-
tended that in the Smitha Gireesh vs
Union of India case, (supra), some of the
documents were supplied on CDs. The
detenue in this case had asked for a CD
player so that he could view or read the
documents. However, it was not given to
the detenue. The Court had then ruled
that it was violative of Article 21 and 22
of the Constitution as it took away the
right of the detenue to make an effective
representation at the earliest.
The Bench said that “the detention of
the petitioners stand vitiated on account
of non-supply of either the printed co-
pies/hard copies of the documents con-
tained in the CDs of the RUDs in both
the cases, or the non-provision of a CD
player/laptop/desktop computer to the
petitioners, to enable them to read and
peruse the documents contained in the
CDs to be able to, firstly, know as to
what documents the detaining authority
has relied upon and, secondly, to be able
to deal with the said incriminating
material in their representations”.
A
ppearing for the Centre, its
standing counsel Amit Mahajan
submitted that the documents
were “shown” on the computer screen to
the detenues. The Court while nixing
the argument said, “It would be too
much to expect the dentenues to be able
to remember the contents of the docu-
ments that they may have viewed on the
computer screen, and to be able to effec-
tively make their representation there-
after. The DA cannot reasonably expect
normal human beings to be able to do
so. Supply of the RUDs is not an empty
formality. Thus, the submission that, at
least, one of the detenues, namely, Dha-
raneesh Raju Shetty has been “shown”
the documents on the 14th day of his
detention is of no avail”.
“The submissions of Mr Mahajan,
counsel for the Centre that the supply of
documents on CDs is akin to supply of
illegible documents cannot be accepted.
It is worse than supplying documents in
a completely foreign language without
true translations. It is like supplying doc-
uments in a locked trunk without the key
to unlock the trunk,” the bench said.
Courts/ Release of Detenues
BytheGraceofGoD
TheDelhiHighCourthassetfreetwopersonsheldunderCOFEPOSAonthegroundthatthe
documentsdetailingtheirGroundsofDetention(GoD)hadnotbeengiventothem
By Kunal Rao
T
COSTLY SLIP-UP
Delhi High Court said the petitioners’ right to make
representation against their arrest was denied

Courts/ Law College Attendance and Exams
30 June 18, 2018
S aspiring lawyers, they
could not have hoped for a
better start. Three stu-
dents pursuing a law
course at Amity Law
School, which is affiliated
to the Guru Gobind Singh Indraprastha
(GGSIP) University, were detained and
prevented from writing their end-
semester examinations due to shortage
of attendance. GGSIP had earlier direct-
ed all its affiliated colleges to publish the
list of students detained in a given
semester due to shortage of attendance
at least 10 days prior to the scheduled
date of the end-semester examinations.
The applicants, who are BA LLB
students, have alleged in their petition
before the Delhi High Court that they
were unable to meet the attendance
criteria because the college concerned
had not held the mandatory number of
classes as prescribed by the University
and the Bar Council of India (BCI).
They have pleaded that the reasons for
preventing them from sitting for the
examinations was not only vague and
cryptic, due to lack of any scientific and
cogent reasons, but also illegal as they
were regular students and not to be
blamed for insufficient attendance.
They also stated that the said infrac-
tions on part of the Amity Law School
were brought to the attention of the
University, but to no avail.
In addition, the applicants also poin-
ted out that the concerned law school
was in violation of Rule 10 of the BCI
Rules, which stipulates that the law
school was statutorily obligated to con-
duct at least 648 hours of class over a
period of 18 weeks during a semester of
the dual degree integrated course. How-
ever, in the applicants’ ninth semester,
the law school only conducted 151 hours
of class over a total of 69 working days.
Of the 648 hours, 540 were to be de-
dicated to in-class lectures, whereas 108
hours were to be dedicated to tutorials,
moot court exercises, seminars, etc.
It was further contended that the law
school is statutorily obligated to abide
Lessons in
Litigation
WhileadjudicatingtheAmityLaw
Schoolcase,wherestudentswere
debarredfromsittingforexams,
theDelhiHighCourtbroughtup
somecriticalissuesoverBCI’s
powersontheissue
By Rajesh Kumar
A
mouthshut.com

by the BCI rules and conduct the
mandatory number of class hours pre-
scribed by the same. It miserably failed
to do so, and has only conducted about
35 percent of the mandatory prescribed
class hours, the applicants pleaded.
T
he University contended that an
expert committee constituted
after hearing not only the affect-
ed students but also the representatives
of the law school, with reference to its
report dated February 21, 2018, found
that as per its academic calendar, class-
es were to be conducted for a period of
15 weeks beginning from August 1,
2017, to November 10, 2017. There-
fore, based on its aforementioned find-
ings, the committee, vide its report
dated February 21, 2018, made the fol-
lowing recommendations:
That the Respondent No. 2, i.e. Amity
Law School, Delhi, must give attendance
for vivas and two internal examinations
and that the same should be followed in
future as well.
That Respondent No. 2 should
organise special classes for seven days
including moot courtroom exercises,
tutorials and practical training con-
ducted in the subject. Six classes may
be held each day. These classes would
take care of loss of attendance for
seven days when classes were not held
after November 3, 2017, as per the aca-
demic calendar notified by GGSIP
University (Respondent No. 1). This
should be done as soon as possible as
some students may lose their chance
for higher studies.
The attendance should be given only
for class lectures and moot court exer-
cise, tutorials and practical training
conducted in the subject and not for
any other activity like sports, dance,
drama, preparation of an activity, photo
session, etc. If any policy is formulated
which is not strictly covered in these
activities, prior written permission
should be obtained from the Bar
Council of India (Respondent No. 3) as
also GGSIP University.
That the academic calendar notified
by GGSIP University be strictly fol-
lowed in letter and spirit including
timely notification of attendance to
the students and its communication to
the University.
That the results of the end-term exam-
inations held in November-December
2017 for ALSD (Respondent No. 2) stu-
dents should not be declared till the stu-
dents have complied with the atten-
dance requirement prescribed under
BCI rules, as pointed out in the above
recommendations.
Justice Rekha
Palli of the Delhi
High Court formulat-
ed three issues while
passing the judg-
ment. These were:
(i) What is the Bar
Council of India
expected to do when
its recognised law
colleges do not abide
by the Rules of Legal Education, Bar
Council of India Rules, and do not hold
the mandatory number of class hours
prescribed thereunder?
(ii) Does the Bar Council of India have
the power to conduct suo motu inspec-
tions of centres of legal education under
the Rules of Legal Education, Bar Coun-
cil of India Rules, so as to ensure compli-
ance of the said rules by law colleges and
universities across the country?
(iii) Does the Bar Council of India have
the power to make ex-parte observations
in respect of a University's specific find-
ings with regard to its affiliated colleges?
The High Court concluded that the
BCI, which is an expert body comprising
distinguished legal experts, will give its
thoughtful consideration to the afore-
said issues and take pro-active measures
to monitor the standards of legal educa-
tion being maintained by accredited law
colleges/universities across the country.
The Court allowed the application
with a direction to the university and
college to conduct within ten days, seven
days of extra classes/tutorials for all
those students desirous of attending the
same. It is further directed that, within
five days of the conclusion of the afore-
said extra classes/tutorials, the college
and university shall provisionally recal-
culate the attendance of the students for
the ninth semester on the basis of the
recommendations made in the expert
committee report of February 21, by
including the attendance for the extra
classes/tutorials.
SITE OF DISCORD
Amity Law School (above) was recently asked to
conduct extra classes, as per BCI (right) Rules,
to enable three of its students to write their
exam. It is a win for law students all over India
Anil Shakya

32 June 18, 2018
HE Kerala High Court has
refused to interfere on a peti-
tion filed by the mother of a
25-year-old transgender say-
ing that gender was a matter
of personal choice. The mother had
approached the court with the com-
plaint that her son was behaving abnor-
mally due to the influence of an active
transgender gang in the area, bent upon
exploiting his mental disorder. The
mother feared the gang might force him
to undergo surgery for organ transplant.
A division bench comprising Justices
V Chitambaresh and KP Jyothindranath
disposed of the petition filed by the
mother hailing from Kochi who had
sought order for his custody.
The court had earlier asked that the
person be subjected to a medical exami-
nation and a report be placed before the
court by June 7. After considering the
report submitted by the mental hospital
which said that the transgender suffered
from no mental disorder, the court ruled
that the person was free to choose the
gender of choice. A detailed order is
expected later.
The petitioner resides with her hus-
band and son Aby James in Ernakulam
district. Her son showed some psycho-
logical abnormalities during his gradua-
tion years and underwent treatment at
Stella Maris Hospital, for less than a
month in September 2017. He was diag-
nosed with mood disorder and psychotic
features, but returned to normal life.
The petition submitted that from
March 2018, her husband and she noted
some behavioural changes in their son,
including causing violence and throwing
items, etc.
She stated that her son had befriend-
ed with some transgender persons,
despite being warned by the parish
preacher. When she tried to consult a
psychiatrist, her son showed reluctance.
Subsequently, on April 5, 2018, he
left home without any information, but
returned within a week. Later, he left
home again on May 9, 2018.
A report was lodged at the Kalam-
assery Police Station. On being called by
the police, the petitioner’s son informed
that he is a transgender and not inter-
ested in living with his parents.
The mother contended that this was
due to the psychotic disorder and sub-
mitted that he should be protected from
forced organ transplantation. She said
even though specific averments were
made against chances of illegal organ
transplant under the influence and coer-
cion of transgender friends Ananya and
Rathi, the police only registered a case
under Section 57 of KP Act (to locate a
missing person).
On May 19 afternoon, the police
informed her that they are going to pro-
duce her son before the Court of Judicial
First Class Magistrate II Aluva.
She rushed to the court and saw her
son wearing women’s apparel for the
first time, and pleaded that he should
be produced before a medical practi-
tioner soon.
The magistrate let her son at liberty
after recording a statement, and even
refused to record that the petitioner
appeared in person before the court.
She submitted before the High Court
that her son is not a transgender “physi-
cally and psychologically”. His mental
aberration of mood disorder was mis-
used by the transgender gang and due to
the psychological pressure, he changed
his name to Arundhati.
On May 22, the petitioner claimed
that her son made frequent phone calls
to her and met her. He informed her
about being in the clutches of the trans-
gender group,who did not permit him to
go back home.
Courts/ Kerala/ Gender
MatterofChoice
TheKeralaHC,accusedofjudicialoverreachfororderingamedical
examonatransgender,rejectsamother’spetitionforcustody
By Kunal Rao
T
FREEDOM TO CHOOSE:
Transgenders at the Queer Cultural Fest in
Thiruvananthapuram
UNI

Spotlight/ J&K Sex Scandal
DOZEN years before the
horrendous Kathua rape
case, where the trial was
shifted to Pathankot in
Punjab, another rape and
prostitution case was re-
ported from Kashmir Valley and the Su-
preme Court had intervened to shift the
trial to a special court in Chandigarh.
Among the 56 accused in the case
were two former ministers, senior
bureaucrats, police officers, leading law
officers and prominent businessmen of
Kashmir. The case not only hit the
national headlines for months together,
but led to the resignation three years
later of then J&K chief minister Omar
Abdullah. He withdrew it the next day
only after then governor NN Vohra
rejected the resignation and gave an
assurance that he had got the allegations
against Omar investigated by the CBI
and found no evidence.
The special CBI court in Chandigarh
has now found enough evidence to con-
vict five accused under Sections 376 of
the Ranbir Penal Code (applicable in the
state of J&K), Section 5 of the Immoral
Trafficking Prevention Act and Section
67 of the Information Technology Act,
among other provisions.
The five are former BSF Deputy
Inspector General (DIG) KC Padhi, for-
mer J&K Deputy Superintendent of
Police (DSP) Mohammad Ashraf Mir,
besides Shabbir Ahmad Laway, Shabbir
Ahmed Langoo and Masood Ahmad. All
were awarded 10 years each in jail for
the offences under various sections of
the RPC.
However, additional district and ses-
sions judge, Chandigarh, Gagan Geet
Kaur, acquitted two accused—former
J&K Additional Advocate General Anil
Sethi and businessman Mehrajuddin
Malik—by giving them the benefit of the
doubt. Incidentally, both the prime
accused, Sabeena and her husband
Abdul Hamid Bullah, who were charged
with sexually abusing minors and run-
ning a brothel, died of natural causes
during the pendency of the trial.
Initially, a case was registered in Sha-
heed Gunj police station under the IT
Act when CDs containing sexual abuse
of a minor girl surfaced. She was recog-
nised by some neighbours who lodged a
police complaint through an NGO. It
was found that the survivor, then merely
13 years, was lured by Sabeena and her
husband and was given a drink laced
with some intoxicant. She was then
raped by a 35-year-old man and given
`500. Subsequently, she was black-
mailed and sent to various clients, for
which she was given `250 each time.
The survivor, daughter of a plumber
and a domestic help, revealed that two
or three other girls were similarly sub-
jected to sexual abuse. However, the
others declined to be part of the investi-
gation. It was during the questioning of
Sabeena that many skeletons tumbled
out. She named very influential persons
besides “reformed” militants who were
offered the minors. The accused includ-
ed former J&K ministers Ghulam
Ahmed Mir and Raman Mattoo, former
principal secretary Mohammad Iqbal
Khandey and hoteliers Riyad Ahmad
Kawa and Hilal Ahmad Shah, who were
initially arrested and released on bail.
Subsequently, several witnesses tur-
ned hostile and even the survivor failed
to recognise some of the accused. She
had identified six of the accused in the
test identification parade and the sev-
enth, Anil Sethi, through photographs.
The entire Valley witnessed violent
incidents with mainstream and sepa-
ratist groups joining hands to protest
against the prostitution racket run in
the heart of the city. Two factions of
Finally,
Some
Justice!
Thoughfivemengot10years
fortheshockingrapeand
prostitutionofaminorin
2006,twowereacquitted
By Vipin Pubby
in Chandigarh
A
GUILTY
BSF Deputy Inspector General KC
Padhi is one of those convicted

Spotlight/ J&K Sex Scandal
34 June 18, 2018
the separatist Hurriyat Conference, led
by Mirwaiz Umar Farooq and Syed Ali
Shah Geelani, and Asiya Andrabi of the
Dukhtaraan-e-Millat and then opposi-
tion, the National Conference of Omar
Abdullah, joined to condemn the sexual
abuse of minors.
However, the Kashmir Bar Associ-
ation and political groups raised doubts
about the credibility of the state govern-
ment to investigate the racket. Follow-
ing the huge public and political out-
rage, then chief minister Ghulam Nabi
Azad ordered a CBI inquiry on May 1,
2006, which subsequently came out
with an extensive chargesheet. The Jam-
mu and Kashmir High Court also took
notice of media reports and ordered that
the CBI investigation be monitored at
the highest level of the state judiciary.
The prosecution and witnesses start-
ed getting threatening calls and a lot of
pressure was exerted on the latter. This
led to many resiling on their statements.
It was at that stage that the Supreme
Court intervened and ordered that the
trial shall take place outside the state in
Chandigarh. Three years later, the case
came back to haunt then chief minister
Omar Abdullah. Some leaders of the
People’s Democratic Party alleged in the
assembly that Omar was named at serial
number 102 in a list of accused pre-
pared by the CBI. He vehemently con-
tested it and was so upset that he drove
straight from the assembly to the gover-
nor’s residence to tender his resignation
till he was cleared of all charges.
Senior security officials detained in
connection with the scandal told the
CBI that Sabeena’s network was, in fact,
a source of information for them about
terrorists who visited her brothel in the
heart of Old Srinagar.
Subsequently, three of the four sur-
vivors turned hostile. Due to the sensi-
tive nature of the case, the trial was kept
in camera and victims were referred to
in code language. The main survivor,
who stood her ground, was kept in the
protective custody of the CBI.
CBI prosecutor KP Singh had told
the court that the survivor was driven to
prostitution due to poverty as she was
the eldest among four siblings. He said
the “sheer helplessness” of the survivor
became more and more evident during
the trial of the case. He pointed out that
her “repeated references to returning
home from the brothel/hotels/guest
houses on foot or auto rickshaws further
reiterated her poor background”.
In her statement in the court, the
survivor said that she was raped by five
to six persons and that two of the
accused had also made a video film of
the act. She said they had been raping
her repeatedly under the threat that
they would make the video public.
Shockingly, even her mother had stood
in the witness box—not in her defence—
but siding with the defence! This
despite the fact that she was listed as a
prosecution witness. Apparently, the
survivor and her family were under
tremendous pressure.
Attempts were made till the very last
to force the survivor to change her state-
ment. In a rare instance, both the
defence as well as the prosecution
approached the High Court seeking per-
mission of re-recording her statement.
The Court rejected the plea saying the
prosecutrix cannot be recalled once her
statement had already been recorded.
Pronouncing the quantum of sen-
tence in a packed courtroom on May 6,
judge Gagan Geet Kaur said the convicts
deserved no leniency. The court came
down heavily on Padhi and Mir, saying
such acts could not be expected from
those society regarded as its protectors.
The court also imposed a fine of `1 lakh
each on Padhi and Mir, ordering that
they will undergo another year of rigor-
ous imprisonment if they defaulted on
its payment. It slapped a fine of `50,000
each on Masood Ahmad, Langoo and
Laway, who will serve another six
months in prison if they fail to pay.
The amount will be used as compen-
sation for the loss of the victim's reputa-
tion and dignity, mental harm and loss
of opportunity of education, the judge
said. “A victim of rape inevitably suffers
acute trauma. Rape itself brings enor-
mous shame to the victim,” she said.
The court rejected the plea for a less-
er sentence for former BSF officer
Padhi, who cited factors such as his old
age (67 years) and killing 40 militants
while being posted in J&K. The defence
lawyers said they would approach the
High Court for quashing the convic-
tions. However, the fact that the men
were convicted proves that the allega-
tions of a prostitution racket flourishing
in the heart of Srinagar during the peri-
od of militancy were true. Only if the
witnesses had resisted pressures and the
other survivors stood their ground, there
could have been more convictions.
Therapetookplaceduringthetenureof
GhulamNabiAzad(right).Threeyearslater,
thenCMOmarAbdullah(left)facedallega-
tionswhichcausedhimtotenderhisresig-
nation.ItwasrejectedbyGovernorNNVohra.

HE word Cantonment is
taken from the French
expression Canton, indicat-
ing a Corner or District
where winter quarters
were established during a
military campaign so that army forma-
tions could encamp and train. In such
situations, the stay could be for a longer
period than during ordinary tactical
maneuvers. The French Canto, shares
its etymological expression with the
Swiss Canton.
In the study of evolution of mankind,
there is no doubt that urgency of securi-
ty and safety occupies a prominent
place. It is even mentioned in the Masl-
ows Theory of Hierarchy of Needs. As
early as 3000 BC, civilizations in Meso-
potamia and India were developed by
the creation of small towns along rivers
Column/ Cantonments Praful Bakshi
The Row over RoadsTherecentdecisionbythedefenceministertothrowopencantonmentroadstothepublichas
createdahugecontroversywitharmedforcespersonnelraisingvalidobjectionstothechange
T
with fortified banks and high walls
guarded by armed soldiers. The two-fold
requirement of this fortified living
enclosure was the protection of people
and the wealth of the community.
This above concept manifested in
various ways over time in the form of
fortified towns and vast settlements well
guarded by armed personnel who were
also part of the society. As the process of
European and specially British colonial-
isation grew, the phenomenon of devel-
opment of Military Garrison or Canton-
ment grew in the Indian sub-continent
(including Pakistan, Myanmar, Sri
Lanka, Malaysia, Ghana, South Africa,
Singapore and Nepal). The concept of
Cantonment or Cantt was adopted by
the British from the French Canton.
When the British started developing set-
tlements in India, these were of four
types—the port cities, cantonments, hill
stations and railway townships.
The port cities like Bombay, Calcutta
and Madras, the various hill stations
and the railway townships, also devel-
oped into cantonments due to security
needs subsequently, and in the case of
hill stations, the British officers and sol-
diers were stationed for considerable
periods for health and specialised train-
ing. Another reason for building canton-
ments by the British was to make their
officers, men and their families live in
cleaner and healthier environments
away from epidemics and other diseases.
The cantonments in India were
MINDLESS ENCROACHMENT
Police arrest Congress activists demanding
opening of roads passing through the
cantonment area in Secunderabad
UNI

India Legal 18 June 2018

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India Legal 18 June 2018