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India legal 18 march 2019


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In a severe blow to the centre, the Delhi High Court has blocked an ordinance confiscating without compensation the independent International Centre For Alternative Dispute Resolution whose chairperson is the Chief Justice of India

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India legal 18 march 2019

  1. 1. Prof NR Madhava Menon: Poetic justice to death convict J&K Constitution Amendments: Electoral gambit? Inasevereblowtothecentre,theDelhiHighCourthasblockedanordinance confiscatingwithoutcompensationtheindependentInternationalCentre ForAlternative Dispute Resolution whosechairpersonistheChiefJusticeofIndia NAKEDAGGRESSION NDIA EGALL STORIES THAT COUNT ` 100 I March18,2019 IC A D R TAKEOVER BID
  2. 2. Editor N Ram of The Hindu, who was in the forefront of exposing illegal payments in finalising the pur- chase of the Bofors gun for the Indian military during Rajiv Gandhi’s premier- ship in the mid-1980s—and hailed by the BJP as a hero—is today facing flak from the BJP as an anti- national traitor. So much so that the government’s attorney general, KK Venugopal, has argued in the Sup- reme Court, alluding to Ram, that the Official Secrets Act (OFA) should be invoked against him for publishing “stolen documents” indicating malfeasance by the Modi government—indeed by the Prime Minister’s Office—in the deal with France for the purchase of 36 Rafale multi-role fighter planes for the Indian Air Force. The details of the allegations—which include favouritism and contract manipulation—have been widely reported by most media outlets, espe- cially online portals. What is important is that these allegations are not hearsay or gossip or based on talks with anonymous sources but rather founded on official documents and notations. It is ironical that most of the Bofors revelations, which helped bring Rajiv Gandhi down, were also based on government documents often sourced by The Hindu and other publications from the very politi- cal party that is now denouncing Ram as a traitor who should be locked up under the Official Secrets Act. Next, they will probably raise the demand that reporters and editors who touch this sensitive subject, which is an election issue, should be tried for treason. Ram has already called the OFA “obnoxious”— a piece of legislation that should be junked because it was formulated by the British to protect the Raj and its imperialist crimes from public scrutiny and debate. His newspaper, he said, is “totally justified” in publishing the information related to the Rafale fighter jets deal and under- lined that he and the newspaper are protected by the law. He has pledged not to reveal the identity of his sources. In several interactions with the media, Ram has stated: “You may call it stolen docu- ments...we are not concerned. We got it from con- fidential sources and we are committed to protect- ing these sources. Nobody is going to get any information from us on these sources. But the documents speak for themselves and the stories speak for themselves.” Investigative journalism, especially when aimed at the government, always inflames the powers that be and they shroud their wrongdoings with the cover of national security and patriotism, which, as a famous saying goes, are the last refuge of scoundrels. “We are fully protected under Article 19(1)(a) of the Constitution of India which gives expres- sion of freedom, and also by the Right to Informa- tion Act, specifically Sections 8(1)(i) and 8(2), which overwrites the Official Secrets Act of 1920,” Ram has publicly stated. He added: “All I can say is that we are fully jus- tified in publishing this information. The inves- tigative journalism comes into play precisely when the information which should be in the public domain is not there, or is consciously suppressed as a cover-up. And I think it’s our duty to (unearth such details) provided the issue is relevant and of the larger public interest.” The Editors Guild of India unequivocally con- demned the attorney general’s comments before the Supreme Court pertaining to documents based on which the media, including The Hindu, had reported on the Rafale deal. Venugopal had sought dismissal of a petition for a review of the apex court’s earlier judgment, giving the government a clean chit, on the ground that the fresh petition had relied on documents that were “stolen” from the defence ministry and that investigations were going on to find out if it was a crime and violative of the Official Secrets Act. The Guild said that although the attorney gen- eral later clarified that the investigation and con- templated action would not be initiated against WHO PROTECTS THE NATIONAL INTEREST? Inderjit Badhwar Letter from the Editor V Itisironicalthat mostoftheBofors revelations,which helpedbringRajiv Gandhidown,were alsobasedongov- ernmentdocuments oftensourcedby TheHindu and otherpublications fromtheverypoliti- calpartythatis denouncingRamas atraitor.Nowthey willprobablywant thatreportersand editorswhotouch thissensitivesub- ject,alsoanelec- tionissue,shouldbe triedfortreason. | INDIA LEGAL | March 18, 2019 3
  3. 3. journalists or lawyers who used these documents, “the Guild is perturbed over such threats. These will intimi- date the media in general and curb its freedom to report and comment on the Rafale deal in particular. Any attempt to use the Official Secrets Act against the media is as reprehensible as asking the journalists to disclose their sources. “The Guild denounces these threats and urges the government to refrain from initiating any action that might undermine the media’s freedom and independence.” What I found of equal interest were the Supreme Court’s comments. Venugopal argued that the review petition must be dismissed because the documents on which it was based were not admissible. “Having these documents is an offence under the secrecy act. The gov- ernment is planning to launch a prosecution.” Justice KM Joseph stated: “The issue here is that the law of the country has been broken by corrupted practices. Even stolen evidence can be looked into, provided it is rele- vant and authentic. You must talk about the law.” When the government insisted that the Court cannot look into the documents unless the source is known and is lawful, Justice Joseph observed: “There were allega- tions of corruption in Bofors. Now will you say the same thing that a criminal court shouldn’t look into any such document?....We are here to enunciate the law…. Now where do we get an authority which says if a document comes from an unknown or unlawful source, documents cannot be looked into?” Justice SK Kaul then intervened: “If the documents were stolen, the government should put its own house in order. It is one thing to say that we should look at these documents with suspicion. But to say we can’t even look at those documents may not be a correct sub- mission in law.” The government also argued that the plea for an inquiry into the Rafale deal should be dismissed also on the grounds that Pakistan had used F-16 aircraft during the recent cross-border dogfights. “Recent incidents have shown how vulnerable we are. When others have superior F-16 aircraft, should we also not buy better air- crafts? There will be damage done to the country by seeking a CBI inquiry,” the government argued. Justice Joseph disagreed: “Are you going to take shelter under national security when the allegation is of grave crime, corruption?” Central to this entire exchange is who represents or defines the national interest—a government which has a vested interest in hiding embarrassing information or the Press or whistleblowers who feel it is their duty to expose waste, fraud and corruption? T he US has a strong Whistleblower Protection Act which is premised on the constitutional doctrine that government employees owe their allegiance not to their political bosses, but to the constitution and to the people of America who are sovereign, and must therefore be protected from official retaliation when they expose wrongdoing and lies by their departments, agencies or political superiors. Perhaps the most celebrated whistleblower of our time is Daniel Ellsberg, the former top security US mili- tary analyst and government contractor. He disclosed a classified government study about the Vietnam war, later known as the “Pentagon Papers”. Ellsberg’s act, according to US watchdog group Government Accoun- tability Project (GAP) proved several administrations had directly lied to the Congress and the public about their intentions and actions in Vietnam. This ultimately led to protests, contributed to the resignation of Presi- dent Richard Nixon, and emboldened the media when the Supreme Court decided against prior restraint against publishing stories in New York Times Co. v. United States. There was a mention of US laws and precedents dur- ing the Indian Supreme Court hearing. And Ram has referred to Ellsberg, a reference many Indians may have missed. To quote directly from his official biography: “Inspired by a young Harvard graduate named Randy Kehler who worked with the War Resisters League and was imprisoned for refusing to cooperate with the military draft—as well as by reading Thoreau, Gandhi and Dr. Martin Luther King—Ellsberg decided to end what he saw as his complicity with the Vietnam Letter from the Editor 4 March 18, 2019 RIGHT TO REVEAL Calling the Official Secrets Act as “obnoxious”, N Ram of The Hindu has said that his newspaper is “totally justified” in publishing the information on Rafale
  4. 4. War and start working to bring about its end. He recalled, ‘Their example put the question in my head: What could I do to help shorten this war, now that I’m prepared to go to prison for it?’ “In late 1969, with the help of former RAND col- league Anthony Russo, Ellsberg began secretly photo- copying the entire Pentagon Papers. He privately offered the Papers to several Congressmen, including the influential J William Fulbright, but none was will- ing to make them public or hold hearings about them. So, in March 1971, Ellsberg leaked the Pentagon Papers to The New York Times, which began publishing them three months later. “When the Times was slapped with an injunction ordering a stop to publication, Ellsberg provided the Pentagon Papers to The Washington Post and then to 15 other newspapers. The case, entitled New York Times Co. v. United States, ultimately went all the way to the United States Supreme Court, which on June 30, 1971, issued a landmark 6-3 decision authorising the newspapers to print the Pentagon Papers without risk of government censure. “Not specifically because Ellsberg released the Pentagon Papers—which covered only the period up to 1968 and therefore did not implicate the Nixon admin- istration—but rather because they feared, incorrectly, that he possessed documents concerning Nixon’s secret plans to escalate the Vietnam war (including contin- gency plans involving the use of nuclear weapons), Nixon and Kissinger embarked on a fanatical campaign to discredit him. An FBI agent named G Gordon Liddy and a CIA operative named Howard Hunt—a duo dubbed “the Plumbers”—wiretapped Ellsberg’s phone and broke into the office of his psychiatrist, Dr Lewis Fielding, searching for materials with which to blackmail Ellsberg. Similar ‘dirty tricks’ by ‘the Plumbers’ eventually led to Nixon’s downfall in the Watergate scandal. “For leaking the Pentagon Papers, Ellsberg was charged with theft, conspiracy and violations of the Espionage Act, but his case was dismissed as a mistrial when evidence surfaced about the government-ordered wiretapping and break-ins. “Ever since his leak of the Pentagon Papers, Ellsberg has remained active as a scholar and anti-war, anti- nuclear weapons activist. He has authored three books: Papers on the War (1971), Secrets: A Memoir of Vietnam and the Pentagon Papers (2002) and Risk, Ambiguity and Decision (2001) as well as countless articles on economics, foreign policy and nuclear disarmament. In 2006, he received the Right Livelihood Award, known as the ‘Alternative Nobel Prize’, ‘for putting peace and truth first, at considerable personal risk, and dedicating his life to inspiring others to follow his example’”. America has a rich histo- ry of whistleblowers and massive retaliation against them. If they, like Ellsberg, received any protection, it was from the free press and the courts. There was no leg- islation to safeguard their rights until 1989, when the Whistleblower Protection Act (WPA) came into being. The Whistleblower Protection Act of 1989 is a law that protects federal gov- ernment employees in the United States from retaliato- ry action for voluntarily dis- closing information about dishonest or illegal activities occurring in a government organisation. WPA, also prohibits a federal agency from taking action or threatening to take action against an employ- ee or applicant for disclosing information that he or she believes violated a law, compliance rule or another reg- ulation. The disclosed information could include reports of management wrongdoing, waste of funds, abuse of authority and a potential risk to public health or safety. The US Office of Special Counsel has jurisdiction over allegations of federal whistleblower retaliation and investigates federal whistleblower complaints. A whistleblower is anyone who uncovers activities that could be illegal, unethical or inappropriate and then reports that activity to authorities or otherwise makes the activities known—i.e., reporting the wrong- doing to a news outlet. A whistleblower can be someone working in or with the public sector at the local, state or federal govern- ment level. A whistleblower may also be someone working in or with private, for-profit companies, as well as non-profit entities. In India, proposed legislation on this subject has been languishing. And perhaps justice and protection will come from the courts and judiciary rather than the Executive. Twitter: @indialegalmedia Website: Contact: | INDIA LEGAL | March 18, 2019 5 A TEMPLATE FOR WHISTLEBLOWERS Ram has referred to US Daniel Ellsberg (above), who leaked the Pentagon Papers to The New York Times
  5. 5. ContentsVOLUME XII ISSUE18 MARCH18,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 March 18, 2019 12Naked Aggression A rushed ordinance brought in by the centre to replace the International Centre for Alternative Dispute Resolution with the New Delhi International Arbitration Centre has been stayed by the Delhi High Court LEAD 18Creative Licence A convict had his death sentence commuted to life after the judges saw his poems and circumstances and felt it did not fit the “rarest of rare” category, writes Prof NR Madhava Menon SUPREMECOURT 20Aadhaar Revisited There is no need for any immediate judicial challenge to the Aadhaar and Other Laws (Amendment) Ordinance, 2019, as it will come up for automatic reconsideration within six months ACTS&BILLS 23Free Up Spaces A PIL in the Delhi High Court has brought up the chaos caused by abandoned and unused vehicles in public spaces in the capital COURTS
  6. 6. | INDIA LEGAL | March 18, 2019 7 Ghost from the Past REGULARS Followuson Twitter:@indialegalmedia Cover Design ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 46 No Let-Up As former aides spill the beans and multiple House committees begin to probe Donald Trump’s myriad dealings, the US president is starting to feel the heat 40 GLOBALTRENDS Kerala Chief Minister Pinarayi Vijayan faces an uncertain future as the Supreme Court is set to hear a corruption case involving him and Canadian company SNC-Lavalin Wild Fire A fire which blazed through the Bandipur National Park and was allegedly man-made, has destroyed over 4,000 hectares of forest. The matter has been brought to the notice of the Supreme Court 34 CRIME Myopic Move? The centre's decision to ban the Jamaat-e-Islami Jammu and Kashmir under the Unlawful Activities (Prevention) Act seems inexplicable and surprising Hope Kindles, At Last 44 The Urban Job Guarantee Scheme of the Kamal Nath government will benefit 6.5 lakh unemployed youth. However, it is unlikely to cure the dire joblessness in the state A Conflict of Interest? The collaboration between ICMR and Pfizer is a part of the latter’s CSR activity and is independent of its commercial interests 48Turf Wars The centre’s extension of two constitutional amendments to J&K has met with strong opposition from political parties in the state who feel that the move is electorally motivated and violates its autonomy 24 28 Of Bloody Political Feuds An arrest warrant has been issued by a court in Kutch against former BJP legislator Chhabil Patel for his alleged involvement in the murder of Jayanti Bhanushali, former vice- president of Gujarat BJP 30 COLUMN ENVIRONMENT Turn Over a New Leaf The draft policy released by the Delhi government for the preserva- tion and transplantation of trees affected by any project is concep- tually simple and breathtaking 32 Sit Down, Be Counted A year after the Kerala government brought in rules to improve the working conditions of salesgirls working in textile and jewellery shops, little seems to have changed STATES No Free Spills The NGT has come down heavily on the Indian Oil Corporation refinery in Panipat for blatantly polluting the environment 36 Rainbow Love The Rajasthan High Court has come out in support of a lesbian couple and asked the police to ensure that they suffer no physical harm 38 SPOTLIGHT 42 MYSPACE
  7. 7. 8 March 18, 2019 “ RINGSIDE “Did we go to Nawaz Sharif? Did we invite them to Pathankot? Prime Minister had got ISI to investigate Pathankot. Pri- me Minister is going to Mr Nawaz Sharif’s (fami- ly) wedding and we are the poster boys. He is the poster boy of Pakistan....” —Congress president Rahul Gandhi on Narendra Modi’s allegation that the Opposition is the poster boy of Pakistan “...when the whole country wants to defeat Modi- Shah duo, Cong is helping BJP by splitting anti-BJP vote. Rumours r that Cong has some secret unders- tanding wid BJP. Delhi is ready to fight against Cong-BJP alliance....” —Delhi CM Arvind Kejri- wal after the Congress deci- ded against an alliance with it, on Twitter “Narendra Modi, Nitish and Paswan exerted themselves for months, even used the government machinery to ensure a handsome turnout.... The number of people who gathered there was about the same that I get flanked by whenever I stop my car at a paan ki gumti....” —RJD chief Lalu Prasad Yadav on the BJP-led coali- tion rally in Patna “That statement will be made by the government. Air Force is not in a posi- tion to clarify how many people were inside... We don’t count human casual- ties, we count what targets we have hit or not hit... We can’t count how many people have died....” —Air Chief Marshal BS Dhanoa on the casualties inflicted by the IAF in the air strike against Pakistan “There should not be any statement and one should understand the feelings prevailing in the country. This is not a political issue and...concerns the unity and integrity of the country. Where the people of the country are united, there should not be any political statement....” —Bihar Chief Minister Nitish Kumar, referring to the Pulwama attack and the air strike by the IAF “I’ve always said the Congress is with us in the gathband- han. Mayawatiji is there, Jayanth Chaudharyji is with us, the Congress is also with us…. I don’t know where this question of Congress not being there is coming from… Congress is also part of the grand alliance....” —Samajwadi Party president Akhilesh Yadav at a press conference in Lucknow “Whoever is raising these issues is being branded as anti- national and Pakistani. We are proud to be Hindustani. My father was also a freedom fighter and we need no lessons on nationalism from those who killed Gandhiji.” —West Bengal CM Mamata Banerjee on the Opposition seeking proof of casualties in Balakot strike
  8. 8. Courts | INDIA LEGAL | March 18, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team NGT imposes `500 crore fine on Volkswagen Ending weeks of speculation, the Supreme Court ordered that the Babri Masjid-Ram Janmabhoomi title suit be referred for court- monitored mediation. The constitution bench, comprising Chief Justice Ranjan Gogoi and Justices SA Bobde, DY Chandrachud, Ashok Bhushan and S Abdul Nazeer, appointed a panel of three mediators for the purpose and directed that while the entire process must be concluded within eight weeks, the first status report of the negotiations should be filed with the court within four weeks. The panel of mediators will be chaired by Justice FMI Kalifulla, who had retired from the Supreme Court in July 2016, and will also comprise Art of Living founder Sri Sri Ravi Shankar and Madras-based senior advocate Sriram Panchu, one of the country’s fore- most legal minds on mediation. The bench has ordered that the mediation process should begin within a week from March 8 in Faizabad, Uttar Pradesh, and that it should be kept confidential. The media has been barred from reporting on its proceedings. The court proceedings in the title suit, if still required, will commence only after the mediation process concludes. Apex court refers Ayodhya dispute for mediation While the Supreme Court was hearing a clutch of review petitions against its December 14, 2018, verdict which had ruled out a court-monitored probe into the Rafale deal, Attorney General KK Venugopal, appear- ing for the centre, told the Court that the doc- uments related to the Rafale deal were stolen from the office of the Ministry of Defence. The A-G also submitted that the said docu- ments were protected under the Official Sec- rets Act and thus urged the Court to dismiss the review pleas as they were based on doc- uments that were “inadmissible as evidence”. Arguing that the documents published by The Hindu newspaper and the one shared by news agency ANI were not supposed to be in the public domain, the A-G also raised the “national interest” argument. However, the bench said that similar circumstances existed in the Bofors scam trial and if the centre’s claims were to be accepted, all cases linked with Bofors should be closed too. The National Green Tribunal (NGT) slapped a fine of `500 crore on German automaker Volkswagen for installing “cheat devices” in its cars that helped the company manipulate the emission tests. The NGT ordered that the penalty must be paid in two months’ time. In November last year too, the NGT had slammed the carmaker for not depositing `100 crore in accor- dance with its previous order, and in January this year, it ordered the company to pay the fine within “24 hours”. The tribu- nal also constituted a team of representatives from the Central Pollution Control Board, Ministry of Heavy Industries, Automotive Research Association of India and National Environmental Engineering Research Institute, which recommended a fine of around `171 crore on the car- maker for causing health dam- age due to excessive nitrogen oxide emissions and worsening the air pollution in Delhi. Justice AK Sikri, the sec- ond senior-most judge in the apex court after Chief Justice Ranjan Gogoi, retired on March 6. During his six- year tenure, Justice Sikri was part of different bench- es which decided various significant issues, such as the rights of the transgender community, the constitution- al validity of Aadhaar and the separation of powers bet- ween the Delhi government and the Lieutenant Governor. However, recently, he court- ed controversy over his selection as a member of the Commonwealth Secretariat Arbitral Tribunal, days after he was nominated by the CJI to the selection panel that decided to remove CBI director Alok Verma. Justice AK Sikri retires from Supreme Court Rafale documents stolen: Attorney General to SC
  9. 9. 10 March 18, 2019 ISTHAT Is the right to free education a fundamental right? The right to free education is a fun- damental right in India, and thus no citizen can be deprived of it. Article 21A of the Constitution provides for free and compulsory education to all children between 6 and 14 years of age. Article 45 also imposes upon states a responsibility to pro- vide for early childhood care and education. Further, the Right of Children to Free and Compulsory Education Act enacted in 2009 describes why education is impor- tant and provides for free education to children up to the age of 14 years. The Act also directs all pri- vate schools to reserve some seats for children from the poorer sec- tions of society. There is separate legislation for persons with disabilities with regard to free edu- cation as well. What things have to be kept in mind by the courts in child custody cases? After the separation of a married couple, the big question that arises is as to who should retain custody of the minor child from the marriage. The law in India gives importance to the welfare of the child, his/her education and the financial condition of the parents in determining the question of custody of the child. Generally, the parent who can take better care of the child is given the custody. The Guardian and Wards Act, 1890, is the legislation which deals with the manner in which custody cases are to be decided. While deciding such cases, courts must also ensure that the child can receive love and affection from both parents even if his/her custody is given to one parent. There can be physical custody where one parent is given the sole right to custody of the child. There can also be joint custody, where both parents have the custody of the child on a rotational basis. If a parent has legal custody, it means that the concerned parent is entitled to take all decisions on behalf of the child. But Hindu and Muslim laws give more preference to mothers. Welfare Most Important in Child Custody Cases —Compiled by Sankalan Pal Right to Education is a Fundamental Right Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Are we allowed to use loud speakers and public address systems in public places? Under Rule 5 of the Noise Pollution (Regulation and Control) Rules, 2000, loudspeakers can be used in public places only with the consent of the concerned authority. Further, loudspe- akers and public address systems can- not be used between 10 pm and 6 am except in closed premises like audito- ria, banquet halls, conference rooms and community halls. This is necess- ary to reduce noise pollution and pre- vent nuisance to other citizens. How- ever, the state government may allow use of loudspeakers from 10 pm to midnight during cultural and religious festivals. Beating of drums and blowing of trumpets is also prohibited at night as per a Supreme Court judgment. Violation of these rules is punishable under the Environment Protection Act. UseofLoudspeakers SubjecttoConditions ? Twitter: @indialegalmedia Website: Contact: Where can you file caveat petitions? Caveat petitions are filed as a precautionary measure when you are expecting a case to be filed in the near future and have certain legal interest in it. So, through this petition, you can get a decree from the court where you ensure that you are given a notice and are heard when such cases are filed. The caveat is valid for a period of 90 days. Section 148A of the Civil Procedure Code (CPC) gives a party the right to file a caveat. Caveats may be filed in both High Courts and the Supreme Court. Caveat petitions are primarily filed in civil cases but criminal matters may also entail the need to file a caveat and such permission to file a caveat varies from court to court. Caveat Petitions Can be Filed Under CPC
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  11. 11. Lead/ ICADR Ordinance 12 March 18, 2019 T midnight on March 2-3, the centre issued an ordi- nance called the New Delhi International Arbitration Centre Ordinance, 2019. The Government of India gazette notification said its purpose was the creation of “an independent and autonomous regime for institutionalised arbitration and for the acquisition and transfer of the undertakings of the In- ternational Centre for Alternative Dis- pute Resolution and to vest such under- takings in the New Delhi International Arbitration Centre (NDIAC) for the bet- ter management of arbitration so as to make it a hub for institutional arbitra- tion and to declare the NDIAC to be an institution of national importance….” Lofty ideals? But retribution was quick in coming as barely four days later, in a dramatic turn of events, the Delhi High Court imposed a stay on the ordinance whose aim was to replace the International Centre for Alternative Dispute Resolution (ICADR), a premier institution set up in the capital in 1995 under the Societies Act, with the centre- controlled NDIAC. Dr HR Bhardwaj, former Union law minister and founder patron of the ICADR, told India Legal: “There was no valid ground for the government to issue this ordinance. This is a grossly ill- advised move and reeks of illegality as it attempts to take over the properties and assets of a registered society. The ICADR has a 25-year-old history and its members are some very distinguished jurists….Even the chief justice of India is involved with the institution in his capacity as its chairperson. Ostensibly, the move has been justified on the ArushedordinancebroughtinbythecentretoreplacetheInternationalCentre forAlternativeDisputeResolutionwiththeNewDelhiInternationalArbitration CentrehasbeenstayedbytheDelhiHighCourt By India Legal Bureau A Naked Aggression INDIA’S PRIDE (Right) The 70th meeting of the ICADR’s governing council held on February 17, 2019; (below) the ICADR was set up in 1995 under the Societies Registration Act and had gained credibility in the field of alternative dispute resolution
  12. 12. | INDIA LEGAL | March 18, 2019 13 grounds that the ICADR was not per- forming up to expectations. If that was indeed the case, the government should have used other less radical and adver- sarial means to address the problem.” Bhardwaj went on to say that as the patron of the institution, he had sug- gested to the government that a com- mittee be constituted to look into the issues plaguing its functioning, if any. The ICADR was set up in 1995 under the Societies Registration Act and is considered a pioneer in the field of alternative dispute resolution. It was established to promote, popularise and propagate alternative dispute resolution methods to facilitate early resolution. The society is an autonomous organisa- tion working under the aegis of the Supreme Court of India with its head- quarters at New Delhi and regional cen- tres at Hyderabad and Bengaluru. The society has established a vast network in international arbitration and has received grants from various institu- tions, including the World Bank. A highly placed legal luminary is of the view that by bringing in the ordinance, the centre has virtual- ly forced its way into taking over the institution. “The government has bull- dozed its way to take over the centre. It has confiscated the building and money, and the employees are facing an uncer- tain future.” He added that the ICADR was established with the primary aim of making it similar to top arbitration centres that exist in London, Singapore and other cities but with the govern- ment taking it over, it will lose its credibility. This credibility was never under question since its inception. Many prominent figures from the legal frater- nity and other fields have participated in its general body and governing council meetings. Being a society, the institution was self-sustainable. The assets and properties of the society were created out of the subscription of its members, rental income, while another source of income was from organising training programmes, seminars, conferences, Photos: ICADR
  13. 13. etc; and there has been no contribution from the government except the grant- in-aid and a corpus of `3 crore and grant of `27.72 crore given in 1995 at the time of registration. ICADR’s chap- ters in Telangana, Andhra Pradesh, and Karnataka have received grants from the respective state governments to the tune of `17 crore. I n its organisational set-up, the soci- ety has prominent figures from legal and other fields in its general body and governing council, like Attorney General of India KK Venugopal, senior advocate Fali S Nariman, senior advo- cate, K Parasaran, senior advocate and the former deputy chairman of the Planning Commission, Montek Singh Ahluwalia, and the like with Bhardwaj as its patron and the chief justice of India as its chairperson. The institution from 1998-2019 has also organised about 16 international conferences for imparting knowledge/training in arbi- tration, conciliation and mediation in all major cities in the country. The confer- ences have been attended and addressed by eminent foreign dignitaries, especial- ly from countries that are known global- ly for arbitration. The society has entered into several cooperation agree- ments with many foreign organisations covering the areas of mutual exchange of information, mutual assistance in conduct of proceedings and mutual assistance in organising, training and other activities. A former law secretary, who did not want to be named, told India Legal: “Having the chief justice of the Supreme Court as its chairman meant that the Centre had some credibility, but that’s now gone and the irony is the current CJI is remaining silent on the issue.” On its part, the government has maintained that the institutional changes were not something out of the blue and had been in the pipeline for nearly a year and a half. A source said that as early as August 2017, the govern- ment had announced that it would app- roach Parliament for making necessary amendments in the existing law aimed at turning India into an international arbitration hub. Minister for Law and Justice Ravi Shankar Prasad had then announced that an autonomous body to be known as the Arbitration Promotion Council of India, having representatives from all stakeholders, would be set up for grad- ing arbitral institutions in India, and an arbitration bench will be created to deal with such commercial disputes. A com- mittee had even been set up under re- tired Supreme Court judge BN Srikrish- na to suggest changes. “The changes in the arbitration law proposed by the committee are not in isolation but part of the larger aim of ensuring good gov- ernance,’’ the law minister had said while releasing the report in 2017. “If Singapore can become an international hub, then why not India,” Prasad was then quoted as saying. The Committee had also suggested a revamp of the International Centre for Alternative Dispute Resolution (ICADR) working under the aegis of the Ministry of Law and Justice, Department of Legal Affairs. It wanted the ICADR to be 14 March 18, 2019 TOP LEGAL BRAINS: The then CJI KG Balakrishnan and Law Minister HR Bhardwaj, among others, at an international conference on alternative dispute resolution in New Delhi in February 2007 Lead/ ICADR Ordinance
  14. 14. | INDIA LEGAL | March 18, 2019 15 declared an institution of national importance and also takeover of the institution by a statute. The Committee was of the view that a revamped ICADR had the potential be a globally competi- tive institution, Prasad had stated then. H owever, the ICADR was not convinced. With the ordinance being issued late on March 2, the options available with ICADR to challenge it were limited. On March 6, the ICADR knocked on the doors of the Delhi High Court seeking an urgent hearing against the ordinance, but failed to get it. In the meantime, the centre wrested control of its headquarters at Vasant Kunj whose estimated value, land and infrastructure included, is around `500 crore. Besides taking pos- session of the premises, it seized the accounts of the ICADR and nearly `30 crore deposits of the institution were frozen. “The ICADR staff was not allowed to enter the premises. The accounts have been frozen. The cheques issued prior to issuance of the ordinance have not been honoured. The doors have been shut on us. This is blatant confisca- tion of an institution,” said a source speaking to India Legal. On March 7, the ICADR matter was squeezed into the supplementary cause list in the High Court for a post-lunch hearing. Senior advocate Dushyant Dave, representing the ICADR, argued that the enactment of the ordinance was unconstitutional and the forceful occu- pation of a premier institution whose chairperson is the chief justice of India does not send positive signals within the legal fraternity. “What is the emergency to bring an ordinance? What is the dif- ference between the existing institution and the one proposed by the centre? Government is issuing tenders to fight arbitration and simultaneously discour- aging its own institution to attract glob- al traffic on arbitration….There aren’t any charges of financial impropriety on the institution. In fact, government could work with us and use our facility. We seek protection from the honourable court,” said Dave. The ICADR has a total of 33 employ- ees, who are bound to lose their jobs as the ordinance does not consider over the liabilities of the institution. “The gov- ernment will take everything including the furniture in the institution, and leave behind a sheet of paper, the regis- tration certificate of the society,” added the source. The centre’s counsel, defending the ordinance, informed the Court that it was issued on the satisfaction of the President of India, and it is obvious that the highest office would have seen merit in the ordinance; though it is subjective, and definitely not out of judicial purview. “The government is acting as per the recommendation of BM Sri- IN COMMAND: Justice AK Sikri (centre) of the Supreme Court, who retired recently, at the 69th meeting of the ICADR’s governing council on January 13, 2019 “Therewasnovalidgroundtoissuethis ordinance.Itisanillegalandill-advised moveasthecentreattemptstotakeover propertiesandassetsoftheICADR.” —DrHRBhardwaj,formerUnionlaw ministerandfounderpatronoftheICADR
  15. 15. 16 March 18, 2019 krishna report on improving arbitration. The ordinance is in accordance with the report. India’s ranking on the World Bank’s Ease of Doing Business Report has suffered due to poor performance in arbitration. The prime minister has assured the world on improving ease of doing business and commerce in India. Every day we are suffering, as we do not fare well on the indices of ease of doing business, and our arbitration is below global standards…,” the centre’s counsel pleaded before the court. T aking a sharp jibe at the centre’s counsel, the Court said: “What is the emergency in bringing the Ordinance….you cannot take over insti- tutions overnight….If you take over the institution, how will they continue?” The centre further argued that the institution was funded by the govern- ment and it had every right to take over an institution that failed to deliver results, and replace it with an efficient set-up. “It is an urgent situation; we have to improve our credibility in the world on ease of doing business and commerce in the country. In this scenario, the urgency has arrived. With the proposed new institution via this ordinance, we will have a healthy and vibrant mecha- nism to address commercial issues,” sub- mitted the centre’s counsel. The Court junked the centre’s argu- ment that the ICADR has merely sorted out 55 arbitrations in a period of 24 years, and its record speaks volumes of its failure as an institution. “We are con- sidering the constitutional aspect of the ordinance, and not the functional aspect or performance of the institution since its establishment….All of a sudden you have come with an ordinance,” said the Court. The Court also probed the centre’s counsel on the urgency involved in bringing in an ordinance overnight under the Constitution, and dismissed its rhetoric that the ordinance was brought post the satisfaction of the President. Though the centre’s counsel tried extre- mely hard to cut a bargain on the ordi- nance, the Court remained steadfast. In fact, justifying the ordinance, the centre told the Court that after the bill to replace the ICADR was passed by the Lok Sabha, the institution knew that the ordinance was on its way. “They knew what is coming,” said the centre’s counsel. The statement perturbed the Court, and the chief justice said that the gov- ernment too had failed on many counts, especially in appointing judicial officials in district-level courts. Finally, the Court said that it was staying the ordinance aimed at replacing the ICADR with a centre-con- trolled institution. The centre’s counsel seemed to be shocked and double-checked with the Court that it had indeed made a state- ment staying the ordinance issued by the President. The Court reiterated that it had decided to stay the ordinance. The centre’s counsel argued that it had already taken over the property and assets of the institution. The Court rep- rimanded the centre’s counsel, saying “we will help you, but not in this man- ner”. “You (centre) utilise their facility… .we will permit them (ICADR) to func- tion from the same property, as they were doing earlier,” said the Court. For the moment, the bulldozer has been stopped in its tracks. —With inputs from Vrinda Agarwal and Sumit Saxena Twitter: @indialegalmedia Website: Contact: TOWERING AND ILLUSTRIOUS ICDAR’s sprawling campus and its foundation stone plaque Lead/ ICADR Ordinance TheDelhiHighCourt,whilestayingthe ordinance,slammedthecentrefortrying to“takeoverinstitutionsovernight”.It alsojunkedthecentre’sargumentthat theICADRhadfailedasaninstitution.
  16. 16. Supreme Court/ Death Convict 18 March 18, 2019 OURTS adopting therapeutic and reformative approaches in administering punish- ments are not alien to crimi- nal courts in the country. However, in the matter of the death penalty, courts were more res- trained and respected the mandate of the legislature. The best they could do was to limit its imposition to the “rarest of rare cases” and leave it to the judg- ment of individual judges to apply the standards to determine such cases on the lines set by the apex court. Despite many attempts to get the death penalty declared unconstitutional, the Supreme Court felt the need of retaining it in the statute book in the present circum- stances. It was left to the Executive to recommend mercy by the president in appropriate cases. The discretion of the president in this regard has also been circumscribed through judicial review of the Executive privilege to give pardon. The law thus evolved over a period of time got some twists and turns in the hands of “anti-death penalty” and refor- mist judges of the Supreme Court who found ways and means to commute dea- th sentences to life imprisonment. Such an approach may appear alien to the sentencing jurisprudence obtaining in current times for “rarest of rare cases”. One such instance was recently reported in a decision rendered by Justices AK Sikri, Abdul Nazeer and MR Shah of the Supreme Court. The media published the news with the headline, “Murder convict’s poem saves him from death sentence”, giving the impression that writing poems while in jail can save one from the gallows. The fact of the matter was that along with other facts and circumstances of the case, the poem with a reformative appeal persuaded the judges to decide that his case was not in the rarest of rare category. The convict at the time of kidnap- ping and murdering a minor child was an adolescent. He spent 18 years in jail awaiting the gallows and all these years, conducted himself as a person who repented his crime. He endeavoured to be a civilised individual, continued his studies from jail and completed his graduation. He thus demonstrated to the Court that he was not a professional killer, was unlikely to repeat the crime if given a chance to integrate himself in society and was in no way a continuing threat to society. To add to these facts, his poem written in jail, though not with the hope of commutation of the death sentence, also strengthened the judicial inference of reformative potential. It is on the basis of this evidence that the court concluded that it was not a fit case Poetic Justice Aconvicthadhisdeathsentencecommutedtolifeafterthe judgessawhispoemsandcircumstancesandfeltitdidnotfit the“rarestofrare”category By Prof NR Madhava Menon C Sixteen years after six men were con- victed of rape and murder and awarded life imprisonment, the Supreme Court acquitted them after finding loopholes in the prosecution case. The judgment was delivered by a bench of Justices AK Sikri, S Abdul Nazeer and MR Shah who ordered compensation of `5 lakh each to the six persons, while slamming the Maha- rashtra police and prosecution for botching up the case. The Court also directed the police to conduct further investigation into the case. The six men—Ankush Maruti Shinde, Rajya Appa Shinde, Ambadas Reprieveafter16years Anthony Lawrence
  17. 17. | INDIA LEGAL | March 18, 2019 19 for the death penalty under the “rarest of rare” principle. What is the message the decision conveys in the matter of awarding the death sentence? Firstly, the “rarest of rare” principle remains the law of the land and must continue to guide the sentencing judge. Secondly, the purpose of retaining the death penalty in the statute book is not retribution in the conventional sense. It is intended to deter like-minded persons and prevent commission of heinous crimes even though its deterrent/preventive poten- tial is a matter of doubt. Thirdly, refor- mation serves social goals in criminalis- ing conduct and restorative justice to some extent gives relief to the victims as well. Expiation used to be sufficient punishment in ancient times. Coupled with remorse and compensation to the victim, restorative justice can reduce the gravity of the offence. In fact, this is the principle under which “plea bargaining” is introduced in the Criminal Procedure Code to let people regain their freedom from long incarceration. O ne would have appreciated the judgment more if the Court had ascertained the views of the vic- tim’s relatives before commuting the sentence of death. One of the weakest links of the present criminal justice sys- tem is its near total neglect of the vic- tim. Alternatively, the Court could have heard the assessment of the case from experts who could have given the extent of reform on the part of the convict. Anyways, the judgment, if circulated among those awaiting death in jails across the country, will certainly help improve prison discipline and the con- duct of convicts. They will invent new ways of demon- strating their reform potential to strengthen their cases for being taken out of the rarest of rare category. —The author is a former Director of the National Judicial Academy and is at present Hony. Director of the Kerala Bar Council MKN Academy for Continuing Legal Education, Kochi AWARDED CAPITAL PUNISHMENT (From L to R) Yakub Memon, Mohammed Afzal Guru, Mohammad Ajmal Amir Kasab and Dhananjoy Chatterjee Twitter: @indialegalmedia Website: Contact: March 5, 2019: The apex court upheld the death penalty imposed on a man for killing six relatives of his wife, including two minors, in Punjab’s Fatehgarh Sahib in 2012. The bench of Justices AK Sikri, S Abdul Nazeer and MR Shah termed the crime “rarest of rare”. A sessions court in Fateh- garh Sahib had sentenced Khushw- inder Singh to death on March 15, 2013, and this was confirmed by the Punjab and Haryana High Court on September 20, 2013. July 30, 2015: Yakub Memon, a convict in the 1993 Mumbai serial blasts case, was hanged in a jail in Nagpur. February 9, 2013: Mohammed Afzal Guru, convicted in the 2001 Parliament attack case, was hanged inside Delhi’s Tihar Jail. November 21, 2012: Mohammad Ajmal Amir Kasab, a Pakistani terrorist, was hanged in Pune’s Yerwada Jail for taking part in the 2008 Mumbai terror- ist attacks. He was the only attacker captured alive by the police. August 14, 2004: Dhananjoy Chatterjee was hanged at Alipore Central Jail in West Bengal on his 42nd birthday for the rape and murder of a teenage girl. —India Legal Team Rarestofrarecases Laxman Shinde, Raju Mhasu Shinde, Bapu Appa Shinde and Suresh Shinde— were convicted for the murder of five members of a family and rape of one of them at a village in Maharashtra’s Jalna district on June 5, 2003. In June 2006, a trial court sentenced all of them to death. The Bombay High Court, while uphold- ing the conviction and death penalty awarded to three of them, altered the sentence in respect of the other three to life imprisonment. Later, in 2009, while hearing an appeal against the Bombay High Court decision, the Supreme Court not only upheld the death penalty award- ed to the three, but also awarded the death penalty to the other three. In the acquittal order, the Supreme Court said there were several inconsis- tencies in the police case which rested on the testimony of the wife of one of the murdered persons who was an eye-wit- ness to the crime. The Court said that though the wife had identified four per- sons from an album of notorious crimi- nals, this aspect was not probed by the police. As a result, the real culprits man- aged to escape the law, while the police falsely implicated the six accused per- sons. The Court took cognisance of the fact that the accused hailed from nomadic tribes and that all of them (except one who was a juvenile at the time of the crime) had lived in jail under sub-human conditions for 16 years. —India Legal Team
  18. 18. Acts & Bills/ Aadhaar Ordinance 20 March 18, 2019 HE ordinance promulgat- ed by the government on March 2, 2019, has once again brought the focus back on the use of Aadhaar and a possible challenge to it in the Supreme Court. Aadhaar has become an “Instrument of Identity” similar to the “Social Security Number” and similar national identity instruments prevailing in other countries. Even the Supreme Court has conceded that Aadhaar can play a signif- icant role in efficient and transparent governance, and more importantly, in the prevention of corruption. However, the use of Aadhaar is being repeatedly challenged by privacy activists, alleging that its widespread use could lead to infringement of privacy—a fundamental right of all citizens. It would, therefore, not be surprising Aadhaar Revisited Thereisnoneedforanyimmediatejudicialchallengetotheordinancesinceitwillcomeupfor automaticreconsiderationwithinsixmonths By Na Vijayashanker TABOVE BOARD? A woman at an Aadhaar registration centre in Howrah, West Bengal
  19. 19. | INDIA LEGAL | March 18, 2019 21 if some privacy activists again knock at the doors of the Supreme Court with a plea to get the ordinance scrapped, per- haps alleging that it is an attempt to violate the principles of privacy laid out in the Supreme Court judgment of September 2018 on Aadhaar (KS Putta- swamy vs Union of India case). The Puttaswamy judgment raised serious concerns about the use of Aadhaar by private sector companies which had been permitted under Section 57 of the Aadhaar Act. The majority judgment struck down that part of Section 57. Consequently, Section 57 of the Aadhaar Act stood read down with the following effect: 57. Act not to prevent use of Aadhaar number for other purposes under law. Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force. Provided that the use of Aadhaar num- ber under this section shall be subject to the procedure and obligations under section 8 and Chapter VI. It must be recognised that the Puttaswamy judgment did not impose a blanket ban on the use of Aadhaar, either by the government or other enti- ties. It only prohibits the use of Aadhaar under any contract not pursuant to any law. The Court therefore suggested that a proper law should be passed to enable the use of Aadhaar. T he citizens of the country are well aware of the fact that Aadhaar is an “Identity Infrastructure” creat- ed by two successive governments at enormous cost to the people of the country. Therefore, it is illogical to block the use of this infrastructure to be harnessed fully for the benefit of the citizens. However, after the Puttaswamy judg- ment, the private sector stopped using Aadhaar as an identity management tool since the widely used Aadhaar authentication-based e-KYC system was not part of the Aadhaar Act. The e-KYC system used for Aadhaar was part of the notified rules of the Controller of Certifying Authorities for e-Sign as an electronic signature under Section 3A of the Information Techno- logy Act, which may be considered as an extension of a statutory base for its use in that context. But KYC which was part of many other regulations such as the RBI guidelines was more of an adminis- trative guideline or a best practice adopted by the industry. Hence, the government was under an obligation to clarify the use of Aadhaar by private sector companies by enacting suitable legislation so that it became part of Section 57 after its partial strik- ing down by the Supreme Court. Further, the Justice Srikrishna Committee on Data Protection had rec- ommended a full set of amendments to the Aadhaar Act in an appendix to its report. While the government had intro- duced the Personal Data Protection Bill as recommended by the Srikrishna Committee, it had to introduce the Aadhaar-related amendments recom- mended by the committee as a separate amendment bill. The government was therefore corr- ect in introducing the Aadhaar (Amend- ment) Bill on January 2, 2019. Though this Bill was passed by the Lok Sabha, it could not be passed in the Rajya Sabha during the current tenure and Inabigrelieftotelecomcompanies,they havebeenpermittedtouseAadhaarfor identificationwithoptionsbeingmade availabletothepublictousealternative modesofidentityverification. NO QUICK RESOLUTION The Aadhaar (Amendment) Bill will have to wait until the next Parliament meets UNI
  20. 20. 22 March 18, 2019 hence lapsed. In order to ensure that the private sector is not inconvenienced due to the lack of a lawful process of using Aadhaar, the government came up with the Aadhaar ordinance. Hence, sufficient justification can be provided for the need for the ordinance and its promulgation by the government at this point of time. Key Provisions of the Ordinance Some of the key provisions of the ordinance which we can take note of are as follows: The ordinance completely removes Section 57 of the Aadhaar Act though only a part of it had been struck down by the Supreme Court. The other changes are meant to offset the adverse effect of the removal of Section 57. This was an unwarranted overreac- tion by the government. A distinction is sought to be made bet- ween the use of Aadhaar for “Authenti- cation” and “Verification” and the con- cepts of “Offline Verification” and “Vol- untary Permission to use Aadhaar based on an Informed Consent”. However, the distinction made between “Authenti- cation” and “Verification” is very fragile and may require re-consideration. “Offline Verification” is defined as a “process of verifying the identity of the Aadhaar number holder without auth- entication, through such offline modes as may be specified by regulations” [Proposed amended section 2(pa)]. On the other hand, “Authentication” is def- ined as “a process by which the Aadhaar number along with demographic infor- mation or biometric information of an individual is submitted to the Central Identities Data Repository for its verifi- cation and such Repository verifies the correctness, or the lack thereof, on the basis of information available with it” [current section 2(c)]. The distinction made out appears to be merely a play of words and would be difficult to justify. A fairly large civil penalty of up to `1 crore has been introduced for each vio- lation in case any entity in the Aadhaar ecosystem fails to comply with the pro- visions of the ordinance. The imposition of the penalty is sup- ported by the proposal for appointment of one of the officers of the UIDAI as an adjudicator and TDSAT as the appellate authority. After a matter is decided by the TDSAT, further appeals would lie directly before the Supreme Court, thus completely eliminating the role of the high courts. In case of Cyber Appeals, further appeals from TDSAT go to the respec- tive state high courts and a similar pro- vision could have been made in the Aadhaar Act also since many of the members of the Aadhaar ecosystem could be small entities across the coun- try, and a TDSAT with a presence only in Delhi without sittings and benches elsewhere would create a huge financial burden on the litigants. This provision has been made to make the work of UIDAI easy at the cost of inconveniencing the litigants. The criminal penalty prescribed under Sections 38 and 39 of the Act has been enhanced from imprisonment of 3 years to 10 years and the imprisonment term under other sections has also been enhanced, thus making the law more stringent. This should please the privacy activists. In a consequential amendment to the Indian Telegraph Act, telecom compa- nies have been permitted to use Aadhaar for identification with options being made available to the public to use alternative modes of identity verifi- cation. This provision comes as a big relief to telecom operators. In a consequential amendment to the Prevention of Money Laundering Act, 2002 (PMLA 2002), the use of Aadhaar has been permitted for banking compa- nies while others may use Offline Veri- fication and other alternatives. The Fintech industry is not happy with their exclusion. Perhaps those Fin- tech companies which are not “Banking Companies” but are registered in some regulatory category with RBI or SEBI could be provided the use of Aadhaar. The ordinance includes “Virtual Identity” also as an “Aadhaar number” [Proposed amended section 2(a)]. This has defeated the very purpose of introduction of the Virtual Aadhaar ID, and the government has missed an opportunity to declare it as a derivative service which does not violate the pri- vacy of the Aadhaar holder particularly when it is used without the use of biometrics. In summary, it can be stated that the “Ordinance” was perhaps justified but some of the provisions of the ordinance must be revisited when the Bill is finally taken up for discussion when the next Parliament meets. It can also be stated that there is no need for any immediate judicial chal- lenge to the ordinance since its life span is short and it will come up for auto- matic reconsideration within the next six months. —The writer is a cyber law and techno-legal information security consultant based in Bengaluru Twitter: @indialegalmedia Website: Contact: Privacyactivistshavebeenchallenging theuseofAadhaarasanattemptto violatethefundamentalrightto privacywhichwasupheldbytheSCinthe JusticeKSPuttaswamy(above) case. Acts & Bills/ Aadhaar Ordinance
  21. 21. | INDIA LEGAL | March 18, 2019 23 Courts/ Abandoned Vehicles PIL was filed in the Delhi High Court seeking the involvement of different agencies of NCT-Delhi to solve the problem of un- precedented growth of vehicles. It was filed by Umesh Sharma, an advocate of the High Court. The petitioner prayed for the cancel- lation of registration of all vehicles which were incapable of being used and have been abandoned and parked in va- rious public spaces. He said state agen- cies should be directed to remove all such vehicles and make adequate arr- angements for free movement of pedes- trians in various areas of Delhi. The petitioner highlighted the prob- lem of rapid urbanisation in Delhi which has led to a large number of vehi- cles being registered. This, in turn, had resulted in the shrinking of valuable space. Moreover, as many roads were being constructed, this had led to acute shortage of parking space. The petition- er further said that the ratio of available parking space and the number of vehi- cles was a complete mismatch, due to which people had no choice but to park their vehicles either on roads or in open spaces, further blocking the movement of traffic. Another problem was of old vehicles which were abandoned and left on roads as scrap, posing a hazard to the safety and security of citizens, and obstructing traffic flow. Relying on Section 55 of the Motor Vehicles Act, 1988, the petition said that this Section was not being complied with and not a single vehicle was reported as perma- nently incapable of being used on roads. The registering authority was simply sit- ting idle instead of taking action. Section 55, incidentally, refers to the cancellation of registration and says: “(1) If a motor vehicle has been des- troyed or has been rendered permanent- ly incapable of use, the owner shall, within fourteen days or as soon as may be, report the fact to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward to the authority the certificate of registra- tion of the vehicle. “(2) The registering authority shall, if it is the original registering authority, can- cel the registration and the certificate of registration, or, if it is not, shall for- ward the report and the certificate of registration to the original registering authority and that authority shall cancel the registration.” On November 15, 2018, the High Court had directed all the respondents to file their status report with regard to the action taken and any further action they proposed to take. On March 4, 2019, the North Delhi Municipal Corporation filed an affidavit stating that 25 abandoned/long-standing parking vehicles were being removed from Shivaji Stadium and sent to an NDMC godown in Udyan Marg. Si- milarly, 16 abandoned/long-standing vehicles were removed from the parking lots of Palika Bazaar. It also said that there were three vehicles parked in the Khan Market parking lot and similar action would be taken after verification. —Shaheen Parween Free Up Spaces Amuch-neededPILwasfiledintheDelhiHighCourtasking fortheirremovalfrompublicspacesinthecapital Twitter: @indialegalmedia Website: Contact: Thepetitionsoughtdirectionstovarious stateagenciestoremoveallabandoned vehiclesandmakeadequate arrangementsforfreemovementof pedestriansinvariousareasofDelhi. DAILY NUISANCE Abandoned vehicles not only obstruct free flow of traffic but are also a safety hazard A
  22. 22. Column/ Jamaat-e-Islami Jammu and Kashmir Pushp Saraf 24 March 18, 2019 ARLY in 2000 when mili- tancy continued to be at its peak in the Valley, Ghulam Mohammad Bhat, the then Ameer (chief) of the Jam- aat-e-Islami Jammu and Kashmir (or JeI), wrote a letter to me about an article I wrote where I referred to his organisation as a militant body. He wrote: “Jamaat has never been a mil- itant body and all the accusations against it are baseless and the charges levelled unfounded....The Jamaat believes in Islam which is a message of love and universal brotherhood.” He spelt out JeI’s political stance: “About the Kashmir dispute, we have made it amply clear on various occasions thro- ugh interviews and press statements that the solution of this complicated issue through peaceful means is a must for the people of this sub-continent...the issue should be amicably settled.” A few years earlier, another organi- sation, the JeI Hind, had sent a com- munication in the context of another observation made by me in an English daily, where it insisted that the expres- sions “Hind” and “Jammu and Kashmir” should be used to underline a distinction—though it and the JeI shared the same name, they were sepa- rate organisations with entirely differ- ent ideologies. Indeed, the JeI is independent of JeI Hind and is actually considered close to Needless Crackdown? ThedecisiontobanthisoutfitundertheUnlawfulActivities(Prevention)Actforfiveyearsis surprisingasithasneverbeenareckonableforceandlargelypursuesapolitico-religiousgoal E RIGHT PERSPECTIVE Ghulam Mohammad Bhat (centre), the chief of the JeI had clarified way back in 2000 that it was not a militant body
  23. 23. | INDIA LEGAL | March 18, 2019 25 JeI Pakistan in theory and practice. Ap- art from undertaking social and reli- gious activities, it has been active in the political spectrum as a supporter of the right to self-determination for the peo- ple of J&K to determine their future. It has a loyal albeit not large cadre and has taken part in elections, winning a maxi- mum of five assembly seats in 1972. It used the mainstream political route to reiterate its own stance instead of being amenable to the status quo or the nati- onal will as reflected in Parliament’s res- olution on February 22, 1994, that J&K is an “integral part” of India and “Pakis- tan must vacate the areas of the Indian State of Jammu and Kashmir, which they have occupied through aggression”. The JeI has never been a reckonable political force and its electoral perform- ance in 1972 could be attributed to the circumstances prevailing at that time. Sheikh Abdullah and the National Conference, strongly backing accession to the Indian Union and secularism and opposed to the Jamaat’s fundamentalist beliefs, were to return to the main- stream in 1975. If the JeI evoked much awe in the early 1990s, it was because of its open association with the Hizbul Mujahideen (HM), which was initially a homespun armed militant outfit. HM was called its “sword arm” and its supre- mo, based in Muzaffarabad (capital of “Azad” Kashmir), locally known as Moulvi Yusuf Shah alias Syed Salah- uddin, has been a senior JeI functionary. B hat’s attempt in the above-men- tioned letter to steer clear of his organisation’s terror links was feeble, but consistent with his own moderate thinking. He tried to pull the JeI back from its extremist approach and confine it to peacefully pursuing its politico-religious goal. As a result, there were a series of developments and a parting of political ways. Bhat tried to put the JeI on a course different from veteran Syed Ali Shah Geelani, the most popular face of the organisation, who had called the shots for too long. The JeI and Geelani gave a respectable veneer to their differences by agreeing to disagree without breaking the umbilical cord. For Geelani, it was Kashmir first without compromising his Islamic phi- losophy. He gave up the right to hold a post in his parent organisation by float- ing his own political outfit, Tehreek-e- Hurriyat. For the Jamaat, it has since been religion first. It says no to violence. Nonagenarian Geelani has personally avoided use of violence, but is evidently not averse to others pursuing it for the Kashmir cause as he sees it. He makes it a point to attend, if allowed to travel out of his house arrest, cremations even of foreign mercenaries killed in encounters with the security forces. His declared stand is that he stands for the right to self-determination of the people of J&K to decide their future and he will accept the verdict of plebiscite, although his vote will be for Pakistan. With this background, many obser- vers are surprised by the timing of the centre’s decision on February 28 to ban the JeI—perceived to be “moderate” at this moment—by declaring it an “unlaw- ful association” under the Unlawful Activities (Prevention) Act for a period of five years. The JeI has been charged, among other things, with being in close touch with militant outfits, supporting extremism, militancy and claims for secession of a part of Indian territory from the Union. The undisguised official view is that in the absence of the ban, there will be “escalation in its subversive activities, including attempt to carve out an Isla- mic State out of the territory of Union of India by destabilising the government established by law”. Even the JeI’s biggest ideological opponent, the National Conference, has been taken aback (JeI could never sig- nificantly make its presence felt as long as the formidable Sheikh Abdullah led the NC). NC vice-president and former chief minister Omar Abdullah has re- marked: “In the battle of ideas & TheJeIhasbeencharged,amongother things,withbeinginclosetouchwith militantoutfits,supportingextremism, militancyandclaimsforsecessionofa partofIndianterritoryfromtheUnion. INEXPLICABLE ACTION The recent crackdown on the Jei is not the first one and may not have the desired effect UNI
  24. 24. Column/ Jamaat-e-Islami Jammu and Kashmir/ Pushp Saraf 26 March 18, 2019 Twitter: @indialegalmedia Website: Contact: ideologies we have always opposed the Jamaat in the political space. The recent ban and crackdown against their leader- ship, members, schools & properties will serve no purpose except to drive their activities underground....In spite of these differences, I cannot support the recent crackdown against them...The move will yield nothing other than glamorising dissent.” W ith the exception of the BJP and the Congress, almost all mainstream political parties and separatist organisations, including the Joint Resistance Leadership com- prising Geelani, Mirwaiz Moulvi Farooq and Yasin Malik, are unanimous in their opposition to the ban. People’s Demo- cratic Party leader and former chief minister Mehbooba Mufti has warned that the ban could have “dangerous con- sequences” as it reeks of “political av- enge”, there being “currently an atmos- phere of revenge against Kashmiris”. She said: “Democracy is a battle of ideas. The crackdown, followed by the banning of Jamaat Islami, is condemnable and another example of highhandedness and muscular approach of the GoI (Government of India) to deal with the political issue of J&K.” She was a part- ner in power with the BJP till recently. Another ally of the BJP and People’s Conference (PC) Chairman Sajjad Lone has echoed similar sentiments: “Why has Jamaat been banned. Jamaat is a social, political and religious organisa- tion. In a vibrant democracy, ideas have to be fought not banned. This organisa- tion has given us illustrious leaders and legislators. How can they be banned? I strongly pitch for revocation of the ban.” In any case, the government’s own strike appears half-hearted. Hundreds of JeI leaders and workers were arrested even before the ban was declared. Many were picked up later, too. Early on con- fusion prevailed that along with the assets of the organisation, its education- al institutions and places of worship were also being seized. As it came under fire for depriving children of education and worshippers of prayers, the gover- nor’s administration took three days to clarify that schools, mosques and orphanages had been kept outside the scope of the seizures and sealing. Dispassionate observers feel that the government appears to have over-esti- mated the influence of the JeI. The last ban on the JeI, on April 16, 1990, by Governor Jagmohan, was done under more challenging circumstances. Militancy had rocked J&K and the country and the link between the JeI and the HM was too transparent to be ignored. The Jammu-Kashmir Libera- tion Front in whose name all this began in 1988 was being pushed into the back- ground. The Falah-i-Aam Trust of the organisation, which ran schools, was also declared unlawful and all its educa- tional institutions were shut down and students transferred to government-run institutions. The ban lasted five years, but this did not prevent the JeI from being a key player in the formation and growth of the Hurriyat Conference, a conglomeration of secessionist outfits, formed in 1993. It recovered rather fast to rebuild its structure, much like after it was first banned during the Emer- gency. In the post-Emergency period, especially after the death of Sheikh Abdullah, it became more vocal and was a major constituent of the Muslim Uni- ted Front that fought the 1987 assembly elections and became a forerunner of the Hurriyat Conference. Would the ban have the desired effect now that it has been imposed for the third time? —The writer is Editor of Border Affairs, a quarterly journal on India’s border states and neighbouring countries GhulamMohammadBhattriedtoputthe JeIonacoursedifferentfromveteran SyedAliShahGeelani(above),themost popularfaceoftheorganisation. PDPleaderandformerJ&Kchiefminister MehboobaMuftihaswarnedthattheban couldhave“dangerousconsequences” asitreeksof“politicalavenge”. TheJeI’sbiggestideologicalopponent, theNationalConference,hasbeentaken abackbytheban.Vice-presidentOmar Abdullahhassaiditwillservenopurpose.
  25. 25. My Space/ ICMR-Pfizer Collaboration Dr KK Aggarwal 28 March 18, 2019 ECENTLY, there was a lot of furore over news that the Indian Council for Medical Research (ICMR) was collaborating with Pfizer, a drug multination- al company that sells antibiotics, for its Anti-Microbial Resistance (AMR) proj- ect. There were charges of conflict of interest (CoI) in this “public-private partnership” (PPP) as Pfizer had provid- ed an initial grant of `7 crore to set up a centre in Delhi to combat anti-microbial resistance and to enhance the surveil- lance programme for this malaise. As per officials of the ICMR, Pfizer offered its Corporate Social Responsi- bility (CSR) funds to it and there were no strings attached and no CoI. Those criticising this collaboration advocate that industry support to AMR activities, if any, should be in the form of unres- tricted educational grant with multiple grants to a common pool. They assert that the WHO document pertaining to PPPs states: “Pharmaceutical companies would have to be willing to contribute collectively, for example, through their industry associations.” They also say that to eliminate or at least reduce CoI, no single company should be selected as a partner to a specific educational or sur- veillance activity. Before deciding whether this collabo- ration amounts to CoI or not, let’s first understand the meaning of “conflict of interest” and “corporate social responsi- bility”. A conflict of interest is a situation in which a person/organisation has competing interests or loyalties. It is a situation in which an individual/organi- sation is involved in multiple interests, financial or otherwise, and serving one interest could involve working against another. Here, the personal interest of an individual/organisation might adver- sely affect a duty owed to make deci- sions for the benefit of a third party. A conflict of interest exists if the circum- stances are reasonably believed (on the basis of past experience and objective evidence) to create a risk that a decision may be unduly influenced by secondary interests, and not on whether a particu- lar individual is actually influenced by a secondary interest. The easiest way to explain the con- cept of CoI is by using some examples: When a public official’s personal interests conflict with his professional position. When a person has a position of authority in one organisation that con- flicts with his interests in another organisation. When a person has conflicting responsibilities. There are different types of activities that can create a possible conflict of interest. These include: Nepotism where favours are given to relatives and close friends, often by hiring them; self-deal- ing where someone in a position of responsibility in an organisation has outside conflicting interests and acts in their interests rather than the interest of A Conflict of Interest? DoestheCSRactivityofthepharmagiantwhichisindependentofitscommercialinterestsandwherea grantof`7crorewasgiventoICMRtosetupadiseasecentrecompromisethecollaboration? R Anthony Lawrence
  26. 26. | INDIA LEGAL | March 18, 2019 29 his organisation. However, these activi- ties do not involve wrongdoing or any criminal activity. For example, a busi- ness executive hiring her daughter might not be CoI unless the latter is given preferential treatment or more pay. If the executive isn’t in a position to give favours, there’s no CoI. C oming to CSR, the Companies Act, 2013, makes it mandatory for companies having a net worth of `500 crore or more or a turnover of `1,000 crore or more to constitute a CSR Committee. This Committee is entrusted with the work of undertaking activities known as CSR activities. It is mandatory for the company to spend, in every financial year, at least two percent of the average net profits made during the three preceding years in pursuance of its CSR policy. Also, it is mandatory for the company to give preference to the local area around where it operates for spending this CSR amount. Activities which may be included by companies in their CSR policies are mentioned in Schedule VII of the Com- panies Act. One of the provisions of Sec- tion 135 of the Act is that if the compa- ny fails to spend its CSR amount, the Board shall in its report specify the rea- sons for it. Activities which may be included by companies in their CSR policies are mentioned in Schedule VII of the Companies Act. These include: eradicating extreme hunger and pover- ty; promotion of education; promoting gender equality and empowering wo- men; reducing child mortality and im- proving maternal health; combating the human immunodeficiency virus, acquired immune deficiency syndrome, malaria and other diseases; ensuring environmental sustainability; employ- ment enhancing vocational skills; social business projects; contribution to the Prime Minister's National Relief Fund or any other fund set up by the central or state governments for socio-economic development and relief and funds for the welfare of the Scheduled Castes, Scheduled Tribes, other backward class- es, minorities and women, etc. In a circular on June 18, 2014, the Ministry of Corporate Affairs had clarified that while activities undertak- en in pursuance of the CSR policy must be relatable to Schedule VII of the Companies Act, 2013, the entries must be interpreted liberally so as to capture the essence of the subjects enumerated in the said Schedule. The items enlisted in this Schedule are broad-based and intended to cover a wide range of activi- ties. Further, the ministry clarified in a circular that enabling access to or im- proving the delivery of public health systems should be considered under the head “preventive healthcare” or “mea- sures for reducing inequalities faced by socially and economically backward groups”. In this context, the funding of the AMR project of ICMR by Pfizer falls under Clause (v) of Schedule VII of the Companies Act. The said CSR activity cannot be CoI as a CSR project of any company is independent of its commer- cial interests. There is an independent committee in a company which assesses any CoI by it. CoI should be disclosed by anyone in a company who is attending a particu- lar meeting and he should affirm that his decision will not be influenced and will be independent of the other party. Otherwise no doctor should become the health minister; no lawyer, the law min- ister and no industrialist, the finance minister. Conflict of interest has to be seen without a blinkered vision and in the spirit of the guidelines in this regard. —Dr KK Aggarwal is President, Heart Care Foundation of India, and President-elect, Confederation of Medical Associations of Asia and Oceania Twitter: @indialegalmedia Website: Contact: Though Schedule VII allows CSR activities to be aligned with govern- ment-run schemes, it has often moved beyond that. A collaboration between the two for social good would mean government poli- cies/schemes develop an ally in the private sector. This is a win-win sit- uation for both parties. Some examples: In 2017, Nestle part- nered with the Department of Medical and Health, Government of Rajasthan, to offer access to clean drinking water at two public health cen- tres. It did so through its NGO partner, Enable Health Society, as part of the Adarsh Public Health Center Yojna. The company also constructed 430 sanita- tion facilities in government schools across 11 states, which has benefitted more than 1,50,000 girl students. In 2016, Sun Pharma signed a tri-party agree- ment between ICMR, MP and Founda- tion for Disease Elimination and Control of India (its CSR arm) to launch a malaria-free India project in Mandla dis- trict of MP. The goal was to eliminate malaria from 1,233 villages and use the lessons learnt for the rest of the country. In 15 months, it was observed that there was a reduction in malaria cases by over 80 percent. In 2015, ITC entered into partnerships with several state governments and NABARD to undertake watershed development proj- ects. These targeted over 1,58,000 hectares in some of India’s most drought-prone regions. In 2012, Coca-Cola star- ted the “Support My School” campaign in 1,000 government schools all over India. It aimed to pro- vide them with adequate sanitation and basic amenities like toilets and other facilities, especially for the girl child. So far, 3,72,959 students (1,69,973 boys and 2,02,946 girls) have benefited. OtherCSRpartnerships
  27. 27. The killing is believed to be the out- come of simmering political and busi- ness rivalry between the two, with both facing allegations of rape and blackmail. Bhanushali had to quit his post because of the charge though it was withdrawn after a court-ratified settlement. The case is also proof of how grass- roots politics is impacted when a long- term political rival is inducted into a cadre-based party, creating clashes with grievous consequences. The pursuit of a Congress-mukt Bharat leading to a Congress-yukt BJP has its perils. Bhanushali, a former MLA, was shot dead in his sleep on January 7 while tra- velling in a train from Bhuj to Ahmeda- bad. He was killed by two masked men who then detrained. Examination of two used and three live cartridges from the Crime/ Murder of Gujarat BJP Leader 30 March 18, 2019 OLD power play can leave a deathly stink. Sizzling pas- sion, putrid politics, hateful rivalry and morbid money power in the borderlands of Kutch have created a vola- tile mix that is expected to impact the politics of Gujarat. A recent case that hogged the headlines was of former vice-president of Gujarat BJP Jayanti Bhanushali being shot dead and a red corner notice to be issued soon for his rival, former BJP legislator Chhabil Patel, who is suspected of being involved in the murder along with others. A court in Bhachau, Kutch, has already issued an arrest warrant for him. Other politi- cians too are nervous following “leaks” that recordings of their amorous adven- tures are with the absconding culprits. spot indicated the use of a country- made pistol. A Special Investigation Team (SIT) was constituted post-haste by DGP Shivanand Jha to crack the case. According to Ajay Tomar, addition- al DGP, CID, Bhanushali’s killing was a political murder, allegedly mastermind- ed by Patel and a woman, Manisha Gos- wami, who is absconding. Forty days after the murder, Ashish Bhatia, DGP, CID, announced the arrest of the two alleged killers, identified as Shashikant Kamble and Ashraf Anwar Sheikh. They were nabbed from a gov- ernment tourist guest house at Saput- ara, bordering Maharashtra, according to the top cop. He said they were given a `30-lakh contract by Patel to liquidate Bhanushali. The police claimed that two 7.65 mm caliber pistols, the murder AnarrestwarranthasbeenissuedbyacourtinBhachau,Kutch,forformerBJPlegislatorChhabilPatel forallegedinvolvementinthemurderofJayantiBhanushali,formervice-presidentofGujaratBJP By RK Misra in Gandhinagar C VIOLENT END Former BJP leader Jayanti Bhanushali (second from left) who was murdered; (inset) Manisha Goswami, who is allegedly involved, is absconding Fatal Political Rivalry Facebook
  28. 28. | INDIA LEGAL | March 18, 2019 31 weapons, were recovered from a river- bed near Nashik. But some troubling contradictions emerge. Initial forensic examinations showed the use of a single country-made weapon. The police then said that three pistols from UP were purchased for `1.30 lakh, with two being used for the crime and the third being given to one Vishal Kamble who was lodged in Yerwada jail, Pune. Vishal, the police says, introduced the other two to Patel, and they stayed at his farm in Bhuj. The police then said they had gone off to Mumbai, Pune, Prayagraj, Vaishnodevi, back to Prayagraj and then Saputara where they were nabbed. But there was no plausible explanation for this. The SIT reconstruct of the crime would have one believe it was the handi- work of hardened killers, including for- mer members of Chhota Rajan’s gang. Bhatia is on record stating that Shashi- kant was involved in two murders else- where (but was acquitted in both) and Sheikh was involved in four cases. How- ever, the Pune police says they are petty criminals with little or no history of murder. But then, how did Patel, an experienced politician, hand over such an important assignment to veritable greenhorns? Bhanushali was a school drop-out who clawed his way up the BJP by sheer hard work. He won his first Vidhan Sabha election from Abdasa constituen- cy of Kutch in 2007. He was also a cot- ton trader and later, dabbled in real est- ate in Ahmedabad. Patel, a law gradu- ate, was with the Congress and shot into the limelight when he defeated former chief minister Suresh Mehta of the BJP in Mandvi constituency of Kutch in 2002. The victory of a Congressman acquired political importance as it came just after the Godhra train carnage and communal riots that created a pro-BJP wave and brought Narendra Modi back to power as chief minister. P atel and Bhanushali were pitted against each other in the 2012 assembly polls from Abdasa. Bha- nushali’s defeat sowed the seeds of an all-consuming rivalry. Patel then switch- ed over to the BJP in the run-up to the 2014 general poll and Bhanushali was eased out as president of the BJP’s Kutch unit. With Patel getting a party ticket in 2017, the rivalry got worse. However, the party made Bhanushali vice-president of the state unit. Patel, meanwhile, lost in 2017 to a Congress candidate. In July 2018, Bhanushali was sucked into a sex scandal when a 21-year-old charged him with rape on various occa- sions on the lure of getting her admis- sion into a design institute and a job. A complaint to the Surat police commis- sioner stated that the act had been fil- med to blackmail her. Bhanushali res- igned soon after. He later came before the Gujarat High Court seeking quash- ing of the complaint, stating that it had been concocted by one Manisha Goswami who had first targeted a rela- tive, Sunil Bhanushali, and tried to extort `10 crore from him. Sunil appro- ached the police and got Goswami arre- sted. However, she got judicial relief and came out of jail. Out of revenge, she asked another of her gang members, the 21-year-old, to target him. However, on August 3, this woman appeared before the High Court and stated that she had no objection to the FIR being with- drawn. The rape case was later closed. Interestingly, Goswami is now wanted for involvement in the murder. Patel, too, was arrested by the Delhi police last year for sexually assaulting a woman whom he had promised a job, but as he had secured anticipatory bail, he was released. Patel, who is out of India, has denied involvement in the murder. A warrant for his arrest was issued by a court in Bhachau, Kutch on February 12 and a red corner notice will soon be issued for him. All’s not well that ends well. Twitter: @indialegalmedia Website: Contact: T here was another case of sex and sleaze like the Bhanushali-Patel one which came into prominence in 2017, the Naliya gangrape of Kutch. On January 25, 2017, a 34-year-old woman from Mumbai filed a complaint in Naliya police station in Kutch claiming she was the victim of a sex racket that involved over 60 people, including politi- cians in Kutch. She also alluded to exploitation of minor girls. An SIT was constituted and 10 or more people, including some local BJP leaders, were suspended from the party and arrested. As protests grew, the gov- ernment appointed a one-man inquiry commission headed by Justice AL Dave, a former judge of the Gujarat HC, in March 2017. It held its first sitting on March 19, 2018. The commission sub- mitted its report on December 12, 2018, to the state government, which decided not to make it public. While indications of various pecca- dilloes of other politicians reportedly emerged from Bhanushali’s mobile, sources say that the absconding Man- isha Goswami too has in her possess- ion proof of sexual capers of some pro- minent politicians. Voluble SIT officers probing the Bhanushali murder clam up when questioned about Goswami, only stating that she is wanted in the Bhanushali murder and is absconding. Moresexandsleaze CORNERED IN THE CASE Former BJP legislator Chhabil Patel
  29. 29. of one year. All details of tree plantation and transplantation projects will be main- tained on the website of the Department of Forests & Wildlife (DFW). In addi- tion, a dedicated tree transplantation cell will be set up in the DFW to prepare Environment/ Delhi’s Draft Policy/ Tree Transplantation 32 March 18, 2019 HE draft policy of the Government of the Na- tional Capital Territory of Delhi (GNCTD) for the preservation and trans- plantation of trees affected by any project is a progressive and wel- come step. For the first time in India, a government has proactively decided to end the practice of mindlessly felling trees for the construction of buildings, roads or other “developmental” projects. The draft policy of February 27, 2019, for which suggestions and objec- tions have been invited, is conceptually simple and breathtaking. To begin with, all trees need to be preserved and pro- tected at the site itself. If this is not pos- sible, 80 percent of the indigenous trees at the site need to be scientifically trans- planted with the help of an authorised agency. The project proponent is also required to ensure that 80 percent of the transplanted trees survive for at least a year. In addition, 10 new trees should be planted for every tree that is felled or transplanted. And to ensure the survival of the new saplings, the draft policy stipulates that their height should not be less than eight feet. These sap- lings will also have to be geo-tagged. The draft policy also contemplates the creation of a monitoring mechanism to ensure the survival of these trees. Local committees comprising citizen groups, professionals and experts will be constituted at the ward or assembly level. These committees will be required to carry out regular monitoring of all projects involving the planting or trans- plantation of more than 100 trees in their local areas. They will also have to certify the tree survival rate at the end and regularly update the technical speci- fications for tree transplantation, to carry out empanelment of technical agencies, to define the benchmark tree survival rate, to carry out training and capacity building and to flag technical agencies who are unable to achieve the T DELICATE JOB: Transplantation of trees needs expertise, especially root ball excavation Turn Over a New Leaf Forthefirsttime,apolicyhassuggestedsimplesolutionsforprotectingorscientificallytransplanting trees,therebyincreasingthegreencoverinthecapital By Debi Goenka
  30. 30. | INDIA LEGAL | March 18, 2019 33 benchmark tree survival rate. What is also welcome is that exotic and invasive species such as subabul, eucalyptus and prosopis have been excluded from this policy and do not need to be protected or transplanted. The GNCTD is also required to update this negative list from time to time. Given the fact that Delhi is amongst the most polluted cities in the world, it makes a great deal of sense to ensure that every tree is protected and pre- served in situ. Secondly, by making transplantation mandatory, this policy ensures that the transplanted tree con- tinues to perform the much-needed function of generating oxygen and absorbing pollution. Thirdly, the fact that the saplings that are being planted need to be more than eight feet high will ensure that most of these will survive if they are looked after. And by mandating that 10 saplings need to be planted for every tree felled or transplanted, the policy has ensured that the tree cover of Delhi will actually increase. And, more impor- tantly, when it comes to transplantation and new plantations, first preference will be given to roadside plantation, thus ensuring that the trees are planted where they are most needed. The shortcomings of this policy are that there is no mechanism to penalise the project proponent if this tree planta- tion and transplantation exercise is not carried out properly. The only penalty that is contemplated under the draft policy is that some portion of the pay- ment being made to the technical agency that carried out the plantation would be deducted. This is one area where this draft policy needs to be strengthened. T here is no reason why this policy should not be adopted by other states and cities as well. Air pol- lution is impacting everyone’s life. Our greenery and tree cover are rapidly shrinking, and it is obvious that the existing government policy of compen- satory afforestation that is required to be carried out under the Forest Conservation Act, 1980, is just not working. The area under forests is also rapidly declining, both as a result of “development” projects and also because of unchecked encroachments under the Forest Rights Act. Tree transplantation is an idea whose time has come. It may be expensive and time-consuming, but no price is too steep when it comes to safeguarding our health and improving air quality. Transplantation of trees also requires a great deal of expertise. If the tree that needs to be transplanted is big, it would require large cranes and trailer trucks to remove and transport it. It would also require careful digging around the roots to ensure that they are not damaged. Great care would have to be taken to ensure that the “root ball” remains intact. In most cases, a large number of branches would also have to be trimmed. And at the transplantation site, the trunk would have to be propped up until its roots take hold and the tree is stabilised. It would obviously also take a while for new branches to grow and restore the tree to its former glory. For small and medium-sized trees, there are now specialised tree trans- plantation trucks that can literally exca- vate the tree from the ground, and carry it to the new location for transplanta- tion. There are already a number of agencies that are offering tree planta- tion services on a commercial basis. Hopefully, we will see fewer and fewer trees being felled, and more and more of them being transplanted. Large trees offer a whole range of benefits that smaller saplings cannot. And as the smaller trees grow to their full height, we will continue to benefit from the oxygen being produced from the trans- planted trees, thereby reducing the pol- lution load in the atmosphere. —The writer is Executive Trustee, Conservation Action Trust MY LIFE, MY SUPPORT A woman hugs a tree during the Save The Tree campaign in New Delhi AsDelhiisamongstthemostpolluted citiesintheworld,itmakessenseto ensurethateverytreeisprotectedand preservedinsitu.Thepolicywillhelpto increasethetreecoverofDelhi. Twitter: @indialegalmedia Website: Contact: UNI