India Legal 19 February 2018

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Isthereadifferenceinthewaymaleandfemalejudgeshandlecasesofrape,
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Maharashtra: Fake
caste certificates
India Legal Conclave honours Prof.
Upendra Baxi: Man who touched many lives

VERY day in the weekly life cycle of
India Legal is special. Who knows what
news will come tumbling out of the
courts at any given moment? Expec-
tancy nourishes excitement. But there
are always some days which are more singular
than others. And last week there occurred one
such special occasion. The evergreen jurist
Upendra Baxi, the penultimate man for all sea-
sons, paid a long visit to our editorial offices to
be part of an informal conclave in which he
regaled the participating judges, constitutional
luminaries, journalists and senior lawyers with
anecdotes and flourishes of legal lore.
Baxi is a one of a kind. He is flagrantly and
fearlessly liberal. He is what the Americans call a
“strict constructionist” of the Constitution for
whom liberty, far from being a vague precept of
political philosophy with little practical value to
the toiling masses, is in effect, a living embodi-
ment of their sovereignty in pursuit of a life
which need not necessarily be nasty, brutish
and short.
For the unlettered, (forgive my presumptu-
ousness), a brief introduction to Baxi should suf-
fice. He is an incorrigible, indomitable scholar,
having served as vice-chancellor of Delhi Uni-
versity, taught in the US at Duke and UCLA, and
is a professor at the University of Warwick in the
UK. Look only at the titles of some of his works
and you’ll have a fair idea of where, as the saying
goes, Baxi’s head is at: Voices of Suffering,
Fragmented Universality, and the Future of
Human Rights; The Development of the Right
to Development; From Human Rights to the
Right to be Human: Some Heresies.
During his interaction at India Legal, an acc-
ount of which appears elsewhere in this issue,
Baxi was typically irreverent in his approach to
the so called “judges’ revolt” in the Indian Sup-
reme Court. He told us such crises are always
welcome. They are a catharsis from which, ulti-
mately, arise the solution of problems often
swept under the rug and left to fester.
Ever the gadfly, the scholar has held forth on
some of the most controversial issues which have
plagued and sullied the nation’s affairs through-
out its modern political history. He has been a
vociferous critic of the suppression of the right
to dissent.
But this does not pit him against the legiti-
mately constituted authority of the right of a
state to govern with resolve. He balances the
scales, because he is no champion of anarchy
which is a fertile breeding ground for despots
and the emergence of demagogues and oligarchs.
As a paper published by the Symbiosis Law
School puts it, Baxi believes that constitutionally,
sincere citizens agree on two things: First, any
assailant of unity, integrity and democratic sov-
ereignty ought to be dealt with according to the
law; and second, intimidation and violence,
especially aggression or predation-moral vigilan-
tism of any sort have no place in any pursuit of
rashtra bhakti.
I
n Kedar Nath Singh v. State of Bihar, the
Supreme Court made it clear that allegedly
seditious speech and expression may be
punished only if the speech is an “incitement to
violence or public disorder”. Further the Court
also stated that Section 124 A (the anti-sedition
section of the Indian Penal Code) is not uncon-
stitutional and not violative to Article 19(1)(a) of
the Constitution. Thus, words and speech can be
criminalised and punished only in situations
where it is being used to incite mobs or crowds
to violent action. Mere words and phrases by
themselves, no matter how distasteful, do not
amount to a criminal offence unless this condi-
tion is met.
Baxi has supported this contention: “Sedition
should never be a way of governance of dissent.
Our Supreme Court has ruled early that every
citizen has a right to discuss and dissent; only
incitement to violent or criminal action stands
TWO GENTLE GIANTS
Inderjit Badhwar
Letter from the Editor
E
| INDIA LEGAL | February 19, 2018 3

outlawed. Shouting slogans that are not anti-
Indian, and conducting and joining protest
marches, are regarded by the court as an integral
aspect of freedom of speech and expression and
democratic dissent. Freedom of speech is now
seen as the touchstone of democracy, and the
ability of individuals to criticise the state is cru-
cial to maintaining freedom.”
Perhaps some of the most memorable lines
that Baxi will be remembered for concern his
passionate outrage over the Bhopal gas disaster
in which some half a million people were ex-
posed to leaking MIC gas from a Union Carbide
plant in December 1984. Over a period, the
death toll is estimated at anywhere between
5,000 and 8,000 with as many disabilities.
Baxi’s target was none other than another
iconic jurist Fali Nariman who defended Union
Carbide in court. Nariman’s memoir, Before
Memory Fades, records an exchange with his
peer with uncanny candour. The occasion was
Seminar magazine asking them to use its
editorial platform for an exchange of views on
the 20th anniversary of the gas disaster in
December 2004.
Nariman had written: “In toxic torts, anger
against the industrial enterprise believed to be
responsible is infectious, evoking strange respon-
ses. Affluent sections of society unaffected by the
tragedy—who share the rage of the victims—
themselves do nothing to alleviate the loss; they
have heard people and the press repeatedly say
that retribution must come from the wrongdoer:
the industrial or chemical company must be
compelled to pay. This results in a climate of
opinion which favours the view that only victims
of natural disasters require public help and sup-
port: as to others, the polluter (the perpetrator)
should pay.”
T
his point of view was shared by the Sup-
reme Court in cases stemming from the
Bhopal gas case. In accepting the civil set-
tlement reached in February 1989 between the
Union of India, representing the victims, and
Union Carbide, the Court averred: “It is indeed a
matter for national introspection that public
response to this great tragedy which affected a
large number of poor and helpless persons limit-
ed itself to the expression of understandable
anger against the industrial enterprise but did
not channel itself in any effort to put together a
public-supported relief fund so that the victims
were not left in distress, till the final decision in
the litigation. It is well-known that during the
recent drought in Gujarat, the devoted efforts of
public spirited persons mitigated, in great meas-
ure, the loss of cattle-wealth in the near famine
conditions that prevailed.”
Baxi protested furiously. He responded with a
public letter to Nariman: “I had to regretfully
decline the invitation to contribute to the
Seminar (December 4 issue)… because of my
resolution not to share any public platform with
Fali Nariman ever since he assumed the UCC
advocacy. I now make an exception because even
some movement colleagues have read his contri-
bution here as offering a veiled apology for his
advocacy of an unjust cause and an unscrupu-
lous client. No close reading of what he now says
remains necessary to dispel this strangely erro-
neous impression. Instead, what we really get
here is an elaborate apologia for the uncon-
scionable settlement that he so assiduously actu-
ally promoted.”
After several exchanges, Baxi wrote a
poignant letter to Nariman, starting with “Dear
Fali”, which Nariman chivalrously reproduced in
his memoirs, recorded by Sundeep Dougal in
Outlook, in a perspicacious recounting of the
duel between the two gentle giants. Wrote Baxi:
“Honest differences of opinion in the Indian
public culture almost all too often remain mired
Letter from the Editor
4 February 19, 2018
Perhapssomeofthe
mostmemorablelines
thatUpendraBaxi
(above)willbe
rememberedfor
concernhispassionate
outrageoverthe
Bhopalgasdisasterin
whichsomehalfa
millionpeoplewere
exposedtoleakingMIC
gasfromaUnion
Carbideplantin
December1984.
Anil Shakya

and caricatured, often cruelly, in terms of per-
sonalized politics, a tendency that I have com-
bated all through, perhaps unsuccessfully in my
associational public life in India...”
He added: “...I sincerely believe (and you may
equally sincerely believe that I remain mistaken)
that your active defence of the UCC did a great
harm to the protection and promotion of human
rights. To say this is not to attack in any way
your otherwise impeccable personal and
professional credentials. Fali, you may say that
the matters end where your professional con-
science begins. If more than 2,00,000 Bhopal
victims and those acting on their behalf think
otherwise, don’t they also deserve the dignity of
equal respect?”
H
e concluded: “I can only guess what you
actually know in terms of the ringside
view of settlement orders. Obviously,
we differ profoundly, concerning the architecture
of judicial perfidies or performance. I had hoped
that your response, twenty years after, would at
least have been consistent to your understanding
of human rights responsibilities of a human
rights lawyering, long since released of profes-
sional privilege. Even state archives remain
unprotected by a thirty year requirement of offi-
cial disclosure. I must now await a decade of life,
against all available health evidence to the con-
trary, of how the settlement orders eventually
were accomplished. But activist lifetimes, even
when perishable, hopefully have an appeal be-
yond individual longevity. I hope that future
archival retrieval will respond much better to the
many issues of contention between us.
“What a long way of saying ‘Thanks’, Fali, for
your animated rejoinder!
“Much love to Bapsi {Mrs Nariman} and you,
Upen”
Nariman responded obliquely, leaving Baxi to
have his final say. He referred to lines from Oli-
ver Cromwell, the 17th century Lord Protector of
England, as quoted in Anecdotes of Painting in
England (1763) by Horace Walpole. While com-
missioning a portrait of his, Cromwell advises
the artist: “Mr Lely, I desire you would use all
your skill to paint my picture truly like me, and
not flatter me at all; but remark all these rough-
nesses, pimples, warts, and everything as you see
me, otherwise I will never pay a farthing for it.”
Those were testing times for the Supreme
Court, but the debate, no matter how sharp-
edged, remained civilised, so far removed from
the epithets and vulgar dissonance which mark
today’s polarised India often dripping with hate.
The Supreme Court, indeed the legal system,
faces a crisis today. As Pratap Bhanu Mehta
wrote: “For all its thunderous bluster, the
Supreme Court has to constantly reclaim its
legitimacy.”
Thank the Lord that India is blessed with
children like Fali and Upen who, like Diogenes
holding a lantern to the faces of citizens of
Athens, continue their search for honesty, probi-
ty, and enlightening, liberating discourse.
AGREEING TO
DISAGREE
The sharp-edged debate
between jurist Fali
Nariman (left) and
Upendra Baxi over the
Bhopal gas tragedy
(above) remained
civilised—far removed
from today’s vulgar
dissonance
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
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ContentsVOLUME XI ISSUE 14
FEBRUARY19,2018
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6 February 19, 2018
Gender and Judgment
Is a female judge more sensitive to issues affecting women and girls than her male
colleagues? India Legal interviews legal luminaries of both sexes to see if this is true
LEAD
LEGALEYE
12
Hobson’s Choice
An apex court order to sack those who forged caste certificates to get jobs has left the
Maharashtra government in a quandary as the numbers affected could lead to a backlash
18
Rational Safeguard
Poor women and widows are often at the mercy of small and micro-loan recovery agents, but
the Civil Procedure Code has a protection built in to save them from more exploitation
22

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Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................33
International Briefs..........41
Media Watch ..................49
Satire ..............................50
Cover Illustration:
ANTHONY LAWRENCE
Touching Lives
At the India Legal conclave, former DU vice-chancellor Dr Upendra
Baxi was honoured for mentoring many successful people
26
SPOTLIGHT
No One Killed Sohrabuddin?
A dhaba owner turning hostile was one of many controversial twists
in the case which went unreported due to a media gag
34
COURT
SCIENCE
There are no laws to
regulate cryonics, a
technology which can
arguably help preserve
dead bodies so that they
may be revived decades
later, but legal questions
must be answered
44
38
Twin Dilemmas
The top court is gripped by two contentious issues—the memoran-
dum of procedure for judges’ appointments and the BH Loya case
30
Delhi’s refusal to intervene as Maldives
plunges into emergency with the arrest of
the Supreme Court chief justice disappoints
and exacerbates Chinese interference
46Garland of
Opportunity
Is Freezing
People Ethical?
A Humanitarian
Crisis
The death of army captain Kapil Kundu last week was another grim
reminder of the human cost of the near-constant strife on the border
36
DEFENCE
Landing up
in Trouble
With the CBI chargesheet indicting
him, Haryana ex-CM Bhupinder
Singh Hooda’s deals, which
deprived farmers of crores, have
returned to haunt him a year before
the state elections
STATES
GLOBALTRENDS
Over in the United States, prisoners are sometimes offered freedom in exchange
for pleading guilty to a crime they probably did not commit. It’s a bad deal
Innocent, and Guilty
42
SUPREMECOURT

8 February 19, 2018
“
RINGSIDE
“Met several people
in last few days. A
consensus amongst
all—BJP getting less
than 215 seats, un-
employment biggest
problem, youth
worried about its
future and middle
class very disen-
chanted with BJP.”
—Delhi CM Arvind
Kejriwal, on Twitter
“We are treating this case as a land dispute. There are appeals and
cross-appeals before us and we are going to deal with it”
—Chief Justice of India Dipak Misra during the hearing of the Ram
Janmabhoomi-Babri Masjid case in the apex court
“Mujhe kuch logon
ne bataya ki Karna-
taka ki Congress
sarkar 10% ki
sarkar hai (Some
people told me that
the Congress
government in
Karna-taka is a 10%
government)...”
—Modi during his
election campaign in
Karnataka
“You have divided
political parties by
using the ED,
Income Tax, NIA.
You have gone after
people who are
aligned with us.
Businessmen are
fearful of speaking
to us on the phone
because our phones
are being tapped
and they fear being
targeted for having
sided with the
Opposition.... You
have reduced all of
us to terrorists, you
have made us
international
terrorists. Fear is
not a good thing,
especially in a
democracy.”
—Ghulam Nabi Azad
lashing out at the
Narendra Modi
government in the
Rajya Sabha
“The NDA is not
giving due respect
to alliance part-
ners… The previous
NDA government
led by AB Vajpayee
gave a lot of respect
to Shiromani Akali
Dal and appointed
two governors and
the minority com-
mission chairman
from among party
leaders. There is
nothing now that
suggests an alliance
—no chairmanship,
no Governor… no
one from SAD has
even been appoint-
ed as a member of
the minority
commission.”
—SAD leader and
Rajya Sabha MP
Sukhdev Singh
Dhindsa blaming the
NDA government for
giving due impor-
tance to its allies
“Hear me out... You
will have to listen to
me for six years....
Selling pakodas is
not a shameful job,
comparing one who
does so to a beggar
is.... A tea seller’s
son is now sitting in
this House as PM.”
—BJP chief Amit
Shah to the Congress
in the Rajya Sabha
“Muslims should not stay in India. They divided
the nation on the basis of population. So, what’s
the need of them staying here (in India)? They
have been given lands. (They) should go to
Bangladesh or Pakistan.”
—Bharatiya Janata Party (BJP) MP Vinay Katiyar

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
SHAH EN SHAH
Smriti Irani is generally all
smiles and exudes bonhomie
at public functions; it’s effective
PR and it’s a rare function when
she is spotted without her
famous smile and some jocular
remarks. Rarely does the mask
slip, as it did last week during
an interaction with the public
during a function hosted by her
ministry at Siri Fort auditorium.
One member of the public
stood up to ask a pertinent, or
impertinent question—did the
minister for textiles wear the
same saris she propagated
under her handloom campaign?
Ministry officials present were
quick to tell the questioner to sit
down and zip up and Irani her-
self looked clearly flustered and
shot back that it was not neces-
sary for her to wear handloom
saris on every occasion.
SMRITI
AND THE SARI
There’s a new buzz in the
Rajya Sabha thanks to the
arrival of BJP president Amit
Shah who made his parlia-
mentary debut last week. It is
patently clear that he is the
second most important per-
son in the NDA and in his
hands lie the fortunes of any-
one with political ambitions,
not to mention existing MPs.
The signs are obvious: the
moment he walks in, or swag-
gers in, to the upper house,
there is a noticeable buzz in
the air and he is immediately
surrounded by MPs belong-
ing to the NDA. He is ignored
by the Opposition and he
ignores them in turn, espe-
cially Sonia and Rahul.
He occupies the seat allot-
ted to Venkaiah Naidu before
his elevation, which is a front
row seat in the block next to
the two-seater occupied by
Narendra Modi and Jaitley.
When he made his maiden
speech, the loudest claps
and thumping of desks came
from union cabinet ministers,
a testament to the unbridled
power he wields.
The secret clause that the
NDA government is waving to
avoid disclosing pricing and
other details of the Rafale
deal signed between India
and France has raised any
number of red flags. The
secret clause is to do with
details that will be concealed
in case there is a dispute at a later stage in
the agreement between India and France
and the matter goes for arbitration. The
biggest red flag is over the cost per aircraft.
Defence Minister Nirmala Sitharaman
refused to give details but in an earlier reply
in the Lok Sabha, the minister of state for
defence had stated that the cost of each air-
craft was “approximately `670 crore”.
However, Indian air force officers have con-
firmed that the unit cost is higher—`1,640
crore. This was the deal worked out between
Prime Minister Modi and his French counter-
part which commits the manufacturer,
Dassualt, to upgrade the armament’s pack-
age, ensure 75 per cent fleet availability
which will include spare parts and engine
replacement, and logistics support for five
years. The undisclosed aspect of the deal is
that the upgrade will also apply to India’s
existing fleet of Mirage 2000 aircraft, also
made by Dassault, which carries a nuclear
weapons payload. The deal has been con-
troversial ever since the NDA government
scrapped the earlier one being negotiated by
the UPA which called for 126 aircraft and a
technology transfer clause. Now, India gets
36 fighters, enough for just three squadrons,
by 2020 when the IAF’s current inventory is
35 squadrons out of a requirement of 45.
France was desperate to sell the Rafale
which, apart from the French air force, had
only attracted interest from Egypt and Qatar.
The deal was a financial windfall for France
(and Anil Ambani) and would only have been
agreed to by India if there is a secret agree-
ment. Naval sources suggest that the Rafale
deal has also elements to do with the
Scorpene Submarines being built in India
and a new weapons/radar suite from the
French company, Thales. Clearly, the French
have got the better of the deal.
RED FLAGS
FOR RAFALE

The centre was reprimanded by the
Supreme Court for its failure to compel
states to implement the Solid Waste
Management Rules notified in 2016. The
Court observed that this had led to a pile-up
of garbage and incidence of vector-borne
diseases in many cities. It was not convinced
by the centre’s argument that states and
Union territories need to implement the law
and the centre could not
enforce it.
A voluminous report filed
in an affidavit by the centre,
containing responses from
some states was also shot
down by the Court. It termed
the report as “solid waste” as
it did not have thorough infor-
mation and wasn’t presented
in a proper format. Also,
questions asked by the Court
did not elicit satisfactory
responses from the centre’s counsel. The
concerned bench remarked: “We are not
garbage collectors.” The centre’s plea that
22 states had set up advisory boards could
not impress the Court.
The Court asked the centre to submit the
report in a tabular and coherent form with
important details mentioned about advisory
boards in three weeks’ time.
Courts
10 February 19, 2018
The apex court expressed
its concern over data in a
government advertisement
that 13 of the 20 most pol-
luted cities of the world were
from India. It observed that
grand health insurance sche-
mes planned by the centre
will not be effective unless
the critical problem of air
pollution is solved at the ear-
liest as people will continue
to fall sick.
Advocate Aparajita Singh
who is amicus curiae in the
case informed the Court that
pollution had spread its ten-
tacles to all parts of India
and the situation was indeed
critical. However, the centre
was still in a planning mode
and implementing measures
was a long-term objective,
she pointed out. The centre
said it was alive to the prob-
lem and taking it seriously.
Tackle pollution on a war footing
—Compiled by Prabir Biswas
Adult marriages
are sacrosanct
Reiterating its earlier stand on
the right of adults to select
their life partners, the top court
ruled that individual rights, group
rights or collective rights have no
role to play in the matter. The
counsel for khap panchayats
pleaded that they were only agai-
nst same gotra or sapinda mar-
riages, as boys and girls from the
same gotra are considered sib-
lings. It argued that even the
Hindu Marriage Act prohibits sapi-
nda marriages and these are pro-
hibited by genetic science as well.
However, CJI Dipak Misra, who
headed the three-judge bench,
said that the Court was not con-
cerned with sapinda or gotra, it
was only bothered with the right
of adults to get married according
to law. Even if the marriage was
“null and void”, khaps must stay
away rather than function as
conscience keepers of society,
he said.
The Court was hearing a peti-
tion filed by an NGO against hon-
our killings. It again reminded the
centre to treat honour killings seri-
ously and file its response to ami-
cus curiae Raju Ramachandran’s
suggestions.
Mining leases in Goa quashed; SC slams state
While observing that the Goa government
had shown “undue haste” in renewing
mining leases of 88 companies for the sec-
ond time before the amended mining Act
from the centre came into effect, the apex
court cancelled all of them. The amended Act
had made auction of leases compulsory
before awarding them. The Court also asked
the companies to wrap up operations by
March 15. It noted that the state government
gave in to the “commercial and profit-making
motives” of private players. It ruled that the
new mining leases will be issued as per the
Mines and Minerals (Development and
Regulation) Act 1957 after getting environ-
mental clearances, and asked the concerned
ministry to “take all necessary steps”.
Implement garbage law: SC

HE recent case of an eight-
month-old infant being
brutally raped by her
28-year-old cousin has
shocked society and comes
in the backdrop of numer-
ous other such horrendous crimes.
It has raised demands for stricter
punishment than what the Protection of
Children from Sexual Offences Act calls
for. The infant is critical and has been
shifted to AIIMS for better care.
In such a scenario, it is pertinent to
look at how judges react to cases of
rape and gender issues coming up
before them in court. Would a lady
judge treat such a crime and others
against women in a more sensitive way
as compared to the clinical, dispassion-
ate way of a male judge?
Incidentally, there was only one lady
judge in the Supreme Court—Justice
Lead/ Crimes Against Women
Guided by
Gender?
Increasingrapeandgendercasesbringtotheforethequestionwhethermaleandfemale
judgeswouldtreattheissuesdifferently.IndiaLegal broachesthesubjectwithafew judges
By Sujit Bhar
TNO MEANS NO
All India Democratic Women’s
Association members protest
against rising rape cases in Delhi

R Banumathi—till senior advocate Indu
Malhotra became the first woman
lawyer to be directly elevated from the
bar to the bench in this court. Malhotra
will be only the seventh woman judge
since Independence to make it to the
top court, showing how screwed gender
representation is even at the top court.
India Legal spoke to a number of
judges, male and female, for their views
on how treatment of gender issues
varied. While they all said that the
inherent impartiality of the system
ensured that equal justice was delivered
to all, irrespective of gender, there were
subtle differences. Male judges were
found to be particular about the many
legal angles in a case and were often
clinical in assessing a crime. Lady
judges, they said, had a feminine
instinct that could often see right
through a man’s defence.
Former Supreme Court Judge Gyan
Sudha Misra even cited “aakrosh” (anger)
that existed within lady judges which
helped them see beyond the surgical pre-
cision of their male counterparts.
However, it wasn’t as if male judges failed
to realise the import of gender-based
issues. Former Supreme Court Judge
Sujata Manohar referred to the Shah
Bano case as an example “of judges over-
coming a harsh provision of personal law
to give a woman maintenance”. She also
cited the top court’s judgment on talaq-e
biddat given by an all-male bench.
In the horrendous and hugely publi-
cised Nirbhaya rape and murder case,
Justice R Banumathi had hit the nail on
the head when she said in her separate
judgment: “Offences against women are
not a women’s issue alone, but human
rights issue.”
At the same time, there is the con-
trasting judgment of the all-male Kerala
High Court bench on an inter-faith
marriage. The bench of Justices
Surendra Mohan and Abraham Mathew
on May 24 last year had ordered that
the marriage of two consenting adults,
Akhila (alias Hadiya) and Shafin Jahan,
was invalid in law and ordered the girl
to be taken back to her parents. Chief
Justice Dipak Misra had rightly asked
that bench whether it could dissolve a
marriage between two consenting
adults. Would the judgment have been
different if the bench had at least one
lady judge?
Here are the detailed opinions of
four judges India Legal spoke to:
Justice Sujata Manohar, former
judge, Supreme Court:
“Impart gender justice education as
part of judicial training”
Judgments cannot and should not
depend on a judge’s personal views or
his/her likes or dislikes. They have to be
based on law as applicable to the facts
established before a court of law. This
judicial process has to be followed by all
judges. Hence, in most cases where the
facts are clearly established and the
applicability of law is clear, there is no
difference in the judgments delivered,
either by male or female judges.
What happens when the law requires
to be interpreted, especially those for
the protection or empowerment of
women? We have the classic example of
judgments delivered by male judges
(there were hardly any female judges in
the higher judiciary then), of interpret-
ing and applying Section 14 of the
Hindu Succession Act, 1956 in the late
50s and 60s. The judges construed the
Section to give effect to the intention of
the legislature to give Hindu women full
ownership rights over property.
A US lady judge expresses anger
and anguish in a verdict
T
he anger of a lady judge in deal-
ing with sexual abuse was seen
recently in the US in the case of
Larry Nassar, 54, a gymnastics team
doctor who worked at Michigan State
University and trained Olympians. He
had sexually abused more than 150
girls over 25 years and his victims
included Olympic medallists Simone
Biles, Gabby Douglas and Aly Raisman.
One of his youngest victims was Kyle
Stephens, who was only six at the time
the abuse began.
Not only did Judge Rosemarie
Aquilina of Ingham County circuit court
in Michigan award a 175-year jail sen-
tence to the culprit, Larry Nassar, but
she also declared: "I just signed your
death warrant."
Justice Aquilina described the crimi-
nal as “precise, calculative, manipula-
tive, devious, despicable”. One would
believe that all epithets except “despica-
ble” would have come from a male
judge as well. Bolstering her judgment,
she said: “…anywhere you walk,
destruction will occur.” She also said: “I
find that you don't get it. That you’re a
danger. I'm a judge who believes in life,
and rehabilitation. But I don't find that's
possible with you.”
Her feminine side was seen when
she addressed the victims: “You are no
longer victims. You are survivors.”
“Ijustsignedyour
deathwarrant”
Incidentally,therewasonlyoneladyjudgeintheSupremeCourt—Justice
RBanumathi—tillsenioradvocateInduMalhotrabecamethefirstwomanlawyer
tobedirectlyelevatedfromthebartothebench.

Where judges are sensitive to women’s
issues, they have interpreted the law to
uphold women’s rights. The Shah Bano
case is another example of judges
overcoming a harsh provision of per-
sonal law to give a woman her mainte-
nance. The recent Supreme Court
judgment on (instant) triple talaq is
another example.
It is not, however, easy to eradicate
deep-seated patriarchal values or alter
traditions that perpetuate discrimina-
tion. Cultural traditions, unfortunately,
colour decision-making at times. In case
of criminal prosecution for a grave
crime against a woman, this can amount
to the failure of the legal system to deal
effectively with violence perpetrated by
men on women—be it rape, dowry-
related crimes or sexual harassment.
However, we do have many instances
where male judges who are sensitive to
gender issues have given decisions that
have greatly supported women.
For example, in Ashok Kumar v State
of Rajasthan, the court convicted the
brother-in-law of a woman who was
burnt to death, and expressed anguish
over the evil of dowry. After the infa-
mous decision of the Supreme Court in
the Mathura rape case, the Supreme
Court held in a later case that a raped
woman must be looked upon as an
injured person who is a victim of crime
and her evidence must be treated as evi-
dence of an injured victim (State of
Maharashtra v Chander Prakash).
A new area where the perception of
male and female judges may differ if the
former are not sensitive to women’s
actual experiences is that of sexual
harassment. One must not fall into the
trap of saying that only women can
understand women’s issues. We have a
judiciary trained to be objective. But,
maybe for such sensitive areas, we need
a judiciary trained to be sensitive to
gender-related issues. A better repre-
sentation of women judges in the judi-
ciary can help promote such gender
sensitivity.
Not every judge can be expected to
be from a cultured part of society. So
what is necessary is gender justice edu-
cation for the judiciary at all levels. It
should be a part of the judicial training
programmes. Greater inclusion of
women in the judicial process as inves-
tigators, prosecutors and judges will
also lead to better sensitisation of all
judges to gender issues and will pro-
mote greater balance in the judicial
decision-making process.
Justice Narendra Chapalgaonkar,
former judge, Bombay High Court:
“Women judges are more aware but
rarely overzealous”
Why should the gender of the judge
be relevant in assessing his/her judicial
performance or general outlook? As the
number of women judges is rising
notably, this point appears to have
cropped up. Wrong notions about
women's intelligence, born out of male
pride, have already been discarded.
It is assumed by a few that as women
judges are educated in law and the
Constitution, their feminine instincts
may overshadow their judicial outlook.
Fortunately, it doesn't appear to be true.
Women judges are naturally more aware
about prevailing injustices against
women, but are rarely overzealous.
However, most of them gather suffi-
cient poise while deciding the cause
before them. Generally, women judges
look at facts and the law in the same
manner as their male brethren. As for
the flaws that have entered the system,
no exception can be carved out on the
basis of gender.
“Generally,womenjudgeslookatfacts
andthelawinthesamemanneras
theirmalebrethren.”
—JusticeNarendraChapalgaonkar,former
judge,BombayHighCourt
“Itisnoteasytoeradicatedeep-seated
patriarchalvaluesoraltertraditionsthat
perpetuatediscrimination.”
—JusticeSujataManohar,formerjudge,
SupremeCourt

Justice DM Dharmadhikari, former
“Male judges are often over-sensitive
in gender conflict cases”
It is a legislative myth in the working
of family and penal laws that only
female judges can effectively dispense
justice to women in conflict with men.
There are many examples which show
that female judges have given justice
to males in conflict with women and
vice-versa.
The recent case of a complaint
against a judge of a high court by a lady
judge of a subordinate court due to
alleged indecent behaviour was cleared
by the committee constituted by the
Supreme Court. It comprised a sitting
female judge of the Supreme Court. The
lady judge of the subordinate court pur-
sued the matter and a parliamentary
committee under the Judges Inquiry Act
was constituted which comprised two
lady judges of superior courts. That
committee also cleared the High Court
judge. This makes it apparent that male
judges of the apex court had adopted a
hyper-sensitive approach in the matter
and caused immense damage to the rep-
utation of the High Court judge. He had
to suffer mental and physical agony
caused by an aspersion on his reputa-
tion and character for which there is no
compensation in law.
Similarly, a judge of the Supreme
Court had to suffer great mental harass-
ment on the allegation of an intern,
where again the hyper-sensitivity shown
by male judges could be seen and ulti-
mately, the accusation was found to be
not worth an inquiry. These show that
male judges show over-sensitiveness
many times towards the cause of women
and vice-versa.
There are provisions in family laws
and Protection of Women from
Domestic Violence Act that in cases
arising under these enactments, as far as
possible, the presiding judges should be
women and so also the family counsel-
lors. When workshops and conferences
of female judges presiding in family
courts are held, they share their experi-
ences. In many cases, once a marriage
has broken down or there is a breach
UK’s first woman SC president sees
gender equality as a fitting legacy
T
he first and only woman to become
a law lord, one of 12 in the UK's judi-
cial system, Brenda Hale was the
only female justice until she recently
became the Supreme Court’s third presi-
dent. Hale has been known to refer to “my
brand of feminism”, and many in the judi-
ciary speak about a Hale Doctrine which
assumes that issues surrounding gender
equality could eventually prove to be her
biggest legacy.
In one of Hale’s best remembered deci-
sions, Yemshaw v Hounslow, a woman
had left the family home with her two
young children in response to her hus-
band’s abusive behaviour, but the coun-
cil—and the Court of Appeal—found that
she didn’t qualify as a person suffering
domestic “violence” because her husband
had never physically attacked her.
“Was this,” Hale asked, “a classic case
of domestic abuse, in which one spouse
puts the other in fear through the constant
denial of freedom and of money for
essentials, through the denigration of her
personality, such that she genuinely fears
that he may take her children away from
her however unrealistic this may appear to
an objective outsider?” Hale’s decision
expanded the definition of domestic vio-
lence, laying the way for a broader under-
standing that prevails today.
TheHaleDoctrine
“Infamilymattersandoffencesinvolving
women,courtsshouldcomprise
bothmaleandfemalejudges.”
—JusticeDMDharmadhikari,formerjudge,
SupremeCourt

in the marriage relationship, the alleged
woman victim becomes revengeful and
vindictive, so much so that she involves
innocent relatives of the husband.
In matrimonial cases where the hus-
band is living in one state and the wife
in another, the power to transfer the
case to the place of residence of the wife
is readily granted by male judges of the
Supreme Court without considering the
harassment and inconvenience it might
cause the husband.
Experience shows that male judges
become over-sensitive and women
judges fall back on their experience
as females in such cases. In family mat-
ters and offences involving women,
courts should comprise both male
and female judges and wherever
possible, NGOs working in the field and
having male and female members
should be allowed to assist the court
in reconciliation.
Justice Gyan Sudha Misra, former
“Lady judges feel more anger in
gender-related cases”
Once, when I was a part of a high
court bench, a rape case of a four-year-
old came before us and I had a differ-
ence of opinion with my male counter-
part. That was the one time when I felt
that maybe the amount of “aakrosh”
(anger) that develops in the mind of a
lady judge is more than in a male judge
in a gender-related case. I am not sure
how a male judge would feel in a rape
case, but as a woman, I would think:
“How did this happen, why did
this happen?”
Male judges, too, get angry, but they
look at it dispassionately, quite like a
surgical procedure to treat the
“disease”. They study the evidence and
then deal with it in a mathematical
precise manner. But when it comes to
the psychological aspect, a lady
judge thinks more about the how and
why of the issue.
During the rape case of the four-
year-old—she subsequently died—I
noticed the psychological aspect of the
rapist. He had been given the death sen-
tence by the trial court. But I saw that
he was supposed to get married soon,
and despite that, he had lured this
child with balloons and chocolates and
raped her.
We had overturned the death sen-
tence on him, but the way my male
counterpart on the bench saw it was a
2+2 situation where evidence was
matched leading to an implication. But I
differed. While he did commit the
crime, I felt that he did not think or
plan it.
Even among men, there are different
viewpoints. You cannot typecast all
males as one. But the attitude generally
is: “Ab choriye, kya hota hai… thik
hai dekh liya (Let’s leave it, it has
been resolved).”
Without taking any names, I want to
refer to a case where an IAS officer in
Chandigarh had filed a case because
she was given a “pat on the back” (by a
senior police officer). My reaction to
that was again how did this happen and
why did it happen? But male colleagues
said: “Arre aap mahilaein bas youn hi
har cheez ka bounder bana dete hain
(You women make a mountain out of a
molehill.)”
In another rape case (the rape hap-
pened in 1997 and the judgment came
in 2011) which came up before the
Supreme Court, we allowed the rapist to
pay compensation to the victim in lieu
of punishment. But a newspaper ques-
tioned this judgment and asked: “How
could this happen when a lady judge
was on the bench?” I again felt the same
“aakrosh” in my mind, but I had to con-
sider that 14 years had passed and both
the parties were agreeable. Hence, it
depends on how one looks at a case,
male or female.
“Malejudgestoogetangry,buttheylook
atitdispassionately,quitelikeasurgical
proceduretotreatthe‘disease’.”
—JusticeGyanSudhaMisra,formerjudge,
SupremeCourt

HE figures are startling and
have left the Maharashtra
government with hard choic-
es. Out of 63,600 employees
recruited under the Sche-
duled Caste and Scheduled
Tribes category by this government dur-
ing the past four decades, 11,700 are
reported to have forged their caste cer-
tificates to get employment. The state
government is bound by a Supreme
Court’s judgment last year to dismiss
them from service, notwithstanding the
number of years they have been in
employment. However, the huge num-
ber of such employees means that it
could face a backlash in the form of
social and political unrest.
On July 6 last year, the Supreme
Court bench comprising of the then
Legal Eye/ SC Order to Maharashtra
Caught
in a BindAnapexcourtordertosackthose
whoforgedcastecertificatesto
secureemploymenthasleftthe
stategovernmentinadilemmaas
theirnumbersarenearly11,700and
itcouldfaceabacklash
By Venkatasubramanian
The judgment, authored by Justice
Chandrachud, points out that service
under the Union and States, or for that
matter under the instrumentalities of
the State, subserves a public purpose.
These services are instruments of gover-
nance. Where the State embarks upon
public employment, it is under the man-
date of Articles 14 and 16 and should
follow the principle of equal opportuni-
ty, the bench held.
Elaborating further, the bench held
that affirmative action in the Consti-
tution is part of the quest for substan-
tive equality. Available resources and
opportunities provided in the form of
public employment are in contemporary
times short of demands and needs. Hen-
ce, the procedure for selection and the
prescription of eligibility criteria have a
T
chief justice, JS Khehar, and Justices
NV Ramana and DY Chandrachud held
in Chairman and Managing Director,
Food Corporation of India and others v
Jagdish Balaram Bahira and others that
protecting the services of a candidate
who is found not to belong to the com-
munity of tribe for whom the reserva-
tion is intended, substantially encroach-
es upon the legal rights of genuine
members of those reserved communi-
ties. It said their just entitlements are
negated by the grant of a seat to an inel-
igible person.
In such a situation where the rights
of genuine members of reserved groups
or communities are liable to be affected,
government circulars or resolutions
seeking to validate it cannot operate to
their detriment, the bench held.
QUOTA CONTROVERSY
Members of the Dhangar
community demanding
reservation from the
Maharashtra government
in Mumbai

significant public element in enabling
the State to make a choice amongst
competing claims, the bench reasoned.
The bench was categorical that the
selection of ineligible persons, therefore,
is a manifestation of a systemic failure
and has a deleterious effect on good gov-
ernance. It gave specific reasons for its
conclusion. Firstly, if a person who is
not eligible is selected, he gains access to
scarce public resources. Secondly, the
rights of eligible persons are violated as
a person who is not eligible for the post
is selected. Thirdly, an illegality is perpe-
trated by bestowing benefits upon an
imposter undeservingly.
These effects upon good governance
find a similar echo when a person who
does not belong to a reserved category
passes of as a member of that category
and obtains admission to an educational
institution. As a result, those for whom
the Constitution has made special provi-
sions are ousted when an imposter is
selected under that quota, the bench
suggested, calling this a fraud on
the Constitution.
Such a consequence must be avoided
and stringent steps taken by the Court
to ensure that unjust claims of impos-
ters are not protected in the exercise of
the jurisdiction under Article 142 of the
Constitution, the Supreme Court held.
T
he bench added: “The nation
cannot live on a lie. Courts play a
vital institutional role in preserv-
ing the rule of law. The judicial process
should not be allowed to be utilised to
protect the unscrupulous and to pre-
serve the benefits which have accrued
to an imposter on the specious plea
of equity.”
Article 142 of the Constitution
enables the apex court to use its extraor-
dinary powers to ensure complete jus-
tice in a given case, even if the legal pro-
visions do not allow a remedy suitable in
the facts of a given case. The bench,
however, was clear that once the legisla-
ture has stepped in by enacting Maha-
rashtra Act XXIII of 2001, the power
under Article 142 should not be exer-
cised to defeat legislative prescription.
The Bombay High Court had held in
the case of Arun Sonone that mere in-
validation of the caste claim by the
Scrutiny Committee—which is autho-
rised to determine the genuineness of
the certificate submitted by a reserved
category candidate—would not entail
withdrawal of benefits or discharge from
employment or cancellation of appoint-
ments made earlier.
The Supreme Court, however, found
the High Court’s decision in Arun
Sonone unsustainable. Section 11 (1) (a)
of the Maharashtra Scheduled Castes,
Scheduled Tribes, De-Notified Tribes
“Thenationcannotliveonalie.Courts
playavitalinstitutionalroleinpreserving
theruleoflaw.Thejudicialprocess
shouldnotbeallowedtobeutilisedto
protecttheunscrupulousandtopreserve
thebenefitswhichhaveaccruedtoan
imposteronthespeciouspleaofequity.”
—SupremeCourtjudgment
onJuly6,2017
SECURE JOBS
Government employees in Mumbai on
election duty in April 2014
UNI
UNI

(Vimukta Jatis), Nomadic Tribes, Other
Backward Classes and Special Backward
Category (Regulation of Issuance and
Verification of) Caste Certificate Act,
2001 explains the offence as obtaining a
false caste certificate (by furnishing false
information), filing a false statement or
document or by any fraudulent means.
Under Section 11(1)(b), the offence con-
sists in securing a benefit exclusively
reserved for designated castes, tribes or
classes by a person who does not belong
to that category in terms of appoint-
ment, admission in an educational insti-
tution against a reserved seat or election
to a local authority or cooperative socie-
ty against an office which is reserved for
that category. Offences punishable un-
der Section 11 have been made cogniz-
able and non-bailable under Section 12.
The apex court held in the FCI case
that Section 11(1) must be read and con-
strued in a prospective sense, and hav-
ing regard to the guarantee contained in
Article 20(1) of the Constitution. But
the Court made it clear that the formal
termination of an employment or the
withdrawal of admission is a necessary
consequence which flows out of the
invalidation of the caste or tribe claim.
The only exception to this principle con-
sists of those cases where, in exercise of
the power conferred by Article 142, the
Court considered it appropriate and
proper to protect the admission which
was granted or, as the case may be, the
appointment to the post.
I
nterestingly, Section 7 of the Maha-
rashtra Act of 2001 enables the
Scrutiny Committee to verify a caste
certificate whether issued before or after
the commencement of the Act, and if it
concludes that it is false and is obtained
fraudulently, it is empowered to order
its cancellation and confiscation. Section
10 provides for the withdrawal of bene-
fits secured under a false certificate. The
apex court was categorical that such
withdrawal of benefits cannot be op-
posed on the ground that there was ab-
sence of dishonest intent.
In the FCI case, the Scrutiny Commi-
ttee invalidated the ST certificate grant-
ed to the respondent on the ground that
his belonging to the Mahadeo Koli
Scheduled Tribe, as claimed by him, was
not established. Although he was app-
ointed in 1984, his services were termi-
nated in 2013.
The Bombay High Court accepted
his contention that he was entitled to
protection of services with continuity,
while the management would be at lib-
erty to withdraw such benefits as were
granted after September 28, 2000.
During the pendency of the manage-
ment’s SLP in the Supreme Court, the
respondent was reinstated and was
granted further promotions. Eventually,
he retired in August 2015 with his ter-
minal benefits.
The Supreme Court, therefore, held
that no further benefits of any nature
whatsoever would be admissible to the
respondent on the basis of his claim,
which has been invalidated. “However,
in the peculiar facts, we are not inclined
to order recovery (of benefits granted to
him) has to be made from the respon-
dent,” the Court said. Thus, wherever
the employee is found to have obtained
a caste certificate fraudulently, and is
still in service, he will not be able to pro-
tect his employment.
The Maharashtra government, it
appears, has no option, but to comply
with the Supreme Court’s judgment
which seeks to correct an “egregious
constitutional fraud”.
The apex court’s decision is based on
a fine balance of the letter of law with a
sense of compassion, while reflecting a
profound awareness of the human ele-
ment involved. Leaning in favour of the
employees who played fraud on the
Constitution would mean serious injus-
tice to the classes of people for whom
reservations were originally envisaged.
Itappearsthatinthecurrentscenario
theMaharashtragovernmenthasno
optionbuttocomplywiththeSupreme
Court’sjudgmentwhichseekstocorrect
an“egregiousconstitutionalfraud”.
NO ROOM FOR FORGERY: The FCI office in
Lucknow. The SC gave clear guidelines in the
FCI case that people getting jobs through
fake quota certificates can’t be spared
Legal Eye/ SC Order to Maharashtra

HERE are an increasing
number of complaints of
women purportedly exploit-
ing laws framed for their
benefit even amid a growing
awareness in society about
their rights. In this scenario, an interest-
ing case came up in the Delhi High
Court last month which questioned the
constitutionality of Section 56 of the
Legal Eye/ Section 56 of CPC
Lend Her a
Helping Hand
Poorwomenandwidowsareoftenatthemercyofsmallandmicro-loanrecovery
agents,butthelawhasanin-builtsafeguardforthemagainstfurthergrief
By Sucheta Dasgupta
es due to frauds committed by people
who took loans with mala fide intention
and later took advantage of this section.
“Women are taking undue advantage of
this section as they are well aware that
they are protected under it and no
recovery of money could be effected
without the fear of arrest and deten-
tion,” it said.
The petition argues that this Section
T
Civil Procedure Code, 1908 (CPC).
Section 56 states that “the court shall
not order the arrest or detention in the
civil prison of a woman in execution of a
decree for the payment of money”.
In the present case, Anil Kumar, who
operates a non-banking finance compa-
ny (NBFC), has filed the writ petition
wherein he claims that banks and
NBFCs are suffering huge financial loss-
UNI

is ultra vires of Articles 14, 15, 19(g) and
21 of the constitution. Following the
hearing on January 8, the division
bench of Acting Chief Justice Gita
Mittal and Justice C Hari Shankar
issued a notice to the Ministry of Law
and Justice and the Law Commission,
seeking their responses.
WOMEN CREDITWORTHY
However, Kumar’s claims are not borne
out by facts from the microfinance and
mainstream banking sectors. Numerous
studies and data analyses have shown
that women are, in fact, a safer bet when
it comes to lending and are more consci-
entious borrowers.
Activist and National Sarda Equal
Opportunities Awardee Subhash Men-
dhapurkar, who heads SUTRA (Society
for Social Uplift Through Rural Action),
a Government of India-registered
organisation working with microfinance
institutions (MFIs) and self-help groups
(SHGs), told India Legal: “Women
borrowers are far more creditworthy
than men. That is the beauty of microfi-
nance. It is successful because it is
women-only. When they take loans,
women will invest the money in poultry,
dairy farming, their children’s educa-
tion, house repairs, agriculture, etc., to
improve the quality of life for their fami-
ly. In the case of men, it is not so. It has
been seen that when the money is not
used for the family and economic activi-
ty, the propensity towards repaying the
loan is far lower.”
Then again, what has largely been
ignored in this equation is the quantum
of individual loans and the economic
and social class of the borrowers. The
average quantum of loan is a paltry
`5,000. Only in rare cases, does this
sum touch a ceiling of `1 lakh. But the
rate of interest charged is quite high
and ranges between 24 percent and 36
percent. It far exceeds the rates charged
by banks.
All India Democratic Women’s Asso-
ciation (AIDWA) national secretary
Tapasi Praharaj says this is one of the
main drawbacks of the microfinance
system. This system works like a chain
with each link adding its own margin,
jacking up the final rate of interest to be
paid by the borrower. One of the chief
demands of AIDWA has been lowering
it to a more rational value. “Linkage
loans typically require three to four
years for approval, thereby reducing the
risk factor for banks vis-à-vis non-pay-
ment,” says Praharaj.
Also and importantly, larger loan
amounts are sanctioned only after the
credibility of the borrower has been
established through a repeated cycle
TOWARDS SELF-RELIANCE
A Mahila Mandal in progress in Durgaganj,
Uttar Pradesh; (facing page) women farmers
in Patna participate in a state-level meeting
I
n India, micro-finance began with
non-governmental initiatives in the
late 1980s when the first self-help
group (SHG) was formed by Mysore
Resettlement and Development
Agency (MYRADA). In 1986, MYRADA
approached the National Bank for
Agriculture and Rural Development
(NABARD) for grants to their SHGs.
NABARD launched the bank-SHG
linkage programme in 1992.
Two major policy changes that
have given further boost to micro-
finance in the next decade were the
setting up of the Swarna Jayanti Gram
Swarozgar Yojana and the inclusion of
credit to SHGs and microfinance insti-
tutions (MFIs) as part of the priority
sector credit for banks.
This Yojana was recast as the
National Rural Livelihood Mission
(NRLM) in 2011 and launched with a
budget of $5.1 billion. It is one of the
flagship programmes of the ministry
of rural development. Also known as
the Deen Dayal Antyodaya Yojana,
it is one of the world’s largest poverty
alleviation initiatives and is supported
by the World Bank with a credit of
$1 billion. Union Budget 2018
increased the allocation for NRLM by
`1,250 crore from `4,500 crore to
`5,750 crore.
Makinga
difference
Wikipedia.org

of loan-taking and repayments, a prac-
tice which acts as an in-built and effec-
tive safeguard against default.
STRUGGLES AND INJUSTICES
Like men, women have to show solven-
cy to get loans. But it is harder for them
as most do not have an individual
income. Neither do they have property
or land to offer as collateral. Only a
minuscule percentage of women own
land in India, and that’s why 99 percent
of loans are given to men. For most illit-
erate and poverty-stricken women,
SHGs are the only way to secure loans,
and these groups themselves weed out
insolvent members.
Widows as well as women whose
husbands have taken loans and later
failed to return them have it particularly
bad. Many have not even been co-signa-
tories for these loans and yet, they are
forced to bear the brunt of loan sharks.
Without any law to protect them except
Section 56 which shields them from the
indignity of arrest and police harass-
ment, these women are nonetheless rou-
tinely persecuted and their property and
possessions taken away by banks and
moneylenders. Meanwhile, they are
denied fresh loans by SHGs and banks.
Says Praharaj, “As there is no other
protection or recourse for these women,
they have no choice but to approach pri-
vate moneylenders if they don’t have
land to give in lieu of the loan their hus-
bands took or any other collateral. These
new loans are then given at exorbitant
interest rates. It traps them in a vicious
circle that ends in destitution.”
Take the example of one Kalavati
from Matkanda village in Ghadsi in
Solan district of Himachal Pradesh. Her
husband, Chet Ram, had taken a loan of
`11,000 way back in 1987 under the
Zilla Udyog Vikas Scheme and failed to
repay it. Because of this, she was denied
Forwomen,itishardertogetloans,as
likemen,they,too,havetoshowsolvency
firstandmostdonothaveanindividual
income.Theyalsodon’thavepropertyor
landtoofferascollateral.
In Guntur, Andhra Pradesh,
27-year-old Borugadda Sudha
jumped into a well in 2009
after being unable to return
`15,000 taken from an MFT
(microfinance company). Her
husband, Ganapathi Rao,
had died in a foundry accident
six months ago.
In Narsipatnam, also in
Andhra Pradesh, agents of a
micro-finance company
allegedly abducted a 10-year-
old girl in 2010 after her
mother failed to repay a loan.
In Cuttack, Odisha,
Sanjukta Mohanty, who took
a `12,000 loan from a micro-
finance institution, was unable
to pay her instalments after
her husband deserted her.
Inexplicably, she went missing
and remains untraced till date.
Her house was auctioned
three months later and the
MFI took the money.
Atthereceivingend
SUPPORT AND SUSTENANCE
A woman harvests wheat, grown thanks to an SHG loan; (top
right) the widow of a farmer who committed suicide in Karnataka
shares her troubles with Rahul Gandhi, the Congress president
Legal Eye/ Section 56 of CPC
UNI
UNI

a loan by the SHG and had to approach
a local sahukar. She ended up losing her
cow and buffalo. Soon, her kids dropped
out of school. Till date, she has not been
able to repay him and is barely able to
support herself and her children.
Even when a loan is sanctioned to a
widow, she may not end up with the
money in her hands.
As Nirmal, an activist with SUTRA,
tells India Legal: “The male members of
the family sometimes intercede on their
behalf and stop the release of money.
One such case took place in Bilaspur
district of Himachal Pradesh where the
father-in-law returned a loan taken by a
young widow to build a small home for
herself and her children on a small plot
of land that had been left to her by her
own husband.”
MFI ROLE
Collection agents of banks and MFIs are
equally culpable in this exploitation.
Very often, they use abusive language
against defaulting borrowers, including
asking them to prostitute themselves to
pay them.
In Guntur, Andhra Pradesh, 27-year-
old Borugadda Sudha jumped into a well
after being unable to return `15,000
taken from an MFI in 2009. Her hus-
band, Ganapathi Rao, had died in a
foundry accident six months earlier. In
Narsipatnam, also in Andhra Pradesh,
agents of a micro-finance company
allegedly abducted a 10-year-old girl in
2010 after her mother failed to repay a
loan. Around the same time, in Cuttack,
Odisha, Sanjukta Mohanty, who took a
`12,000-loan from an MFI, was unable
to pay her instalments after her husband
deserted her. Inexplicably, she went
missing and remains untraced till date.
Her house was auctioned three months
later and the MFI took the money.
The Reserve Bank of India guidelines
dated 2007 have recommended a due
diligence procedure for engagement of
recovery agents so that they do not use
muscle power and are trained in soft
collection techniques—regular
reminders, proper documentation of the
process and loan restructuring—but
implementation remains a grey area.
LIMITED PROTECTION
This is not the first legal challenge to
Section 56.
In October 2016, the Bombay High
Court dismissed a PIL containing the
same plea. The bench of Chief Justice
Manjula A Chellur and Justice MS
Sonak stated in the judgment: “Keeping
in view the prevailing customs, the legis-
lature has considered it appropriate to
grant women a special protection… the
legislative object is basically to grant a
limited protection. For this limited pur-
pose, Article 15(3) [the right to equali-
ty] protects this provision.”
In the case of Veena Madhukant vs
State Bank of India (2007), the Kerala
High Court bench of Justices HL Dattu
and Kurian Joseph, too, upheld the con-
stitutionality of Section 56. Four years
ago, in Cyril Britto vs Union of India,
the Kerala High Court had held Section
56 to be constitutionally valid.
The defaulter may still face punish-
ment under Sections 403 or 420 of the
IPC for dishonest misappropriation of
funds and cheating. Section 25 in The
Recovery of Debts Due to Banks and
Financial Institutions Act, 1993, stipu-
lates arrest as one of the methods of
dealing with a defaulter, even though
banks do not usually take this route and
go for debt rescheduling and loan
restructuring instead.
If the court thinks the default is
more civil in nature, CPC is set into
motion. If the wrongdoing is deemed
criminal, then it no longer applies.
However, the court may still use its dis-
cretion to grant bail to a woman offend-
er as per Section 437 of the Criminal
Procedure Code.
Sometimes, dispensation of justice
requires a small measure of affirmative
action and a helping hand.
“Womenborrowersare
morecreditworthythan
men.Thatisthebeautyof
microfinance.Itis
successfulbecauseitis
women-only. Womenuse
themoneyforthefamily.”
—SubhashMendhapurkar,
socialactivist
“Linkageloansrequire
threetofouryearsfor
approval,therebyreducing
theriskfactorforbanks.
Theirinterestratesaretoo
highandmustbelowered
toamorerationalfigure”
—TapasiPraharaj,national
secretary,AIDWA
“Malemembersofthe
familysometimes
intercedeonbehalfof
womenandstop
thereleaseoffunds
evenafteraloanto
themisapproved.”
—NirmalChandel,
activistwithSUTRA

Spotlight/ India Legal Conclave/ Dr Upendra Baxi Felicitation
AUGUST GATHERING (L-R) Senior advocate, Supreme Court, and Chairman, ILRF, Pradeep Rai; Rajshri Rai, Editor-in-Chief, APN; Dr Upendra
Baxi; Justice Shiva Kirti Singh; Justice Gyan Sudha Misra; Subhash Kashyap; and Inderjit Badhwar, Editor-in-chief, India Legal
A Man Who
Touched Many Lives
There are many adjectives one can shower on Dr
Upendra Baxi to describe his five-decade-long
illustrious career. He is a scholar of internation-
al repute in the field of law, an acclaimed author
of several books and papers, a widely celebrated
legal mind, an unabashed votary of India’s secu-
lar and liberal ethos and a recipient of the coun-
try’s fourth highest civilian honour—the Padma
Shri. Yet, if there’s one description that the hum-
ble Dr Baxi prefers over all of these ostentatious
titles, it is that of a teacher.
On February 4, India Legal felicitated Dr
Baxi for his continuing service in the field of
education and unparalleled contribution in
mentoring novices struggling to understand the
complex web of jurisprudence and later went on
to become leading lawyers and members of the
judiciary in India.
It was not surprising then that those who
came together to honour Dr Baxi at the conclave
included retired judges of the Supreme Court,
high courts and district courts, senior advocates
and academicians. What followed was a capti-
vating discussion on the challenges facing the
Indian judicial system.
These are some glimpses from the conclave:
Photos: Anil Shakya

HAILING DR BAXI
In September 1979, Dr Baxi, along with
three other professors, wrote an open
letter to the then judges of the Supreme
Court on their controversial judgment in
the Mathura custodial rape case.
Justice Shiva Kirti Singh, chairman,
Telecom Disputes Settlement and
Appellate Tribunal (TDSAT) and for-
mer judge of the Supreme Court, said:
“His contributions to law and legal
thinking will be written in golden let-
ters. He has been a great professor and
vice chancellor (of Delhi University
from 1990 to 1994) and a source of
inspiration for several generations.”
Rupinder Suri, senior advocate and
former president of the Supreme
Court Bar Association, lauded Dr Baxi
for that letter and the openness with
which he addresses all issues. “He is a
motivator and a catalyst. He has
touched so many lives and helped them
become better. He never imposes his
ideas and encourages you to have your
own ideas.”
“REVOLT” BY SENIOR SC JUDGES
Dr Upendra Baxi: There have been sev-
eral instances of friction in the Supreme
Court and high courts and in that sense,
the judiciary has permanently been in
crisis. As a citizen, I am happy to see
this crisis because there should be a cri-
sis in any organisation for it to be saved,
or else there would be no renovation.
The problem with the system of the
chief justice of India being “first among
equals” with regard to other judges of
the Supreme Court is that every holder
of that office tries to assert himself. It is
not easy to be “first among equals” and
only a few chief justices have emerged
unscathed from this challenge.
I must add that the media and the
public failed to pay attention to the two
major issues that the four judges
raised—the roster system and the col-
legium. Why isn’t the issue of collegium
being raised by the press or the bar? The
judges made it clear that the Supreme
Court had written to the central govern-
ment on Memorandum of Procedure
but even after several months, the gov-
ernment has not replied. The govern-
ment can’t take its sweet time to
respond to the Supreme Court. When
the chief justice of India writes a letter
on behalf of other judges, there must be
a reply.
Justice SK Singh: The press conference
by the Supreme Court judges and the
crisis was indeed unfortunate but I am
confident that this situation too shall
pass. Every system has its flaws and
gaps and they are to be understood and
preparations should be made in advance
to plug them. In a constitutional system,
there are occurrences which are extra-
constitutional but those situations must
be rare. Judges are wise people; chief
justices are sensitive to the needs of the
institution and they take care to ensure
that no crisis reaches a stage where it
blows up on the face of the nation.
ACCESS TO JUSTICE
Dr Baxi: The Supreme Court has very
clearly stated in one of its judgments
that there is a right to justice and
RAPT ATTENTION (L-R) Rajshri Rai, Dr Upendra Baxi and Justice Shiva Kirti Singh
LEGAL MIND
Professor Baxi making a point at the conclave
EXPERIENCE COUNTS Justice Shiva Kirti
Singh sharing his views

Spotlight/ India Legal Conclave/ Dr Upendra Baxi Felicitation
access to justice is a fundamental right
of citizens. However, access is multi-
dimensional. Religious organisations,
media, education and every other sec-
tion must strive to take people to justice.
There has to be a social movement or
else access to justice will always
remain limited.
Ved Kumari, dean and head of Faculty
of Law, University of Delhi: Access to
justice is not limited to some people get-
ting what they are entitled to from the
state but also what they are entitled to
get from fellow citizens.
Prof. BT Kaul, chairperson, Delhi
Judicial Academy: The Delhi Judicial
Academy has moved from traditional
teaching areas to sensitive programmes.
We deal with the sufferings of the com-
mon man and try to empower the weak-
est of the weak... The maximum number
of officers that have come to us recently
are girls. They are so brilliant that some
can easily be taken in as sessions judges.
SUBORDINATE JUDICIARY
Justice SK Singh: The jurisdiction of
district courts is in no way subordinate
to that of the Supreme Court. Under the
constitutional scheme, the Supreme
Court doesn’t have any administrative
control over high courts or district
courts in a state. So, the state judiciary
is not subordinate to the apex court.
Dr Baxi: There is no such thing as high-
er judiciary and lower judiciary. All
judges are equal. I recall an occasion
when (former) Chief Justice (YV)
Chandrachud got very upset with me
when I asked him to outline the differ-
ence between a nyay sarpanch and the
chief justice of India. I told him that in
the appointed jurisdiction, the nyay
sarpanch is as supreme as the chief jus-
tice of India. I feel that the Constitution
must be amended since it has a chapter
called “subordinate judiciary”... the term
should be changed.
WOMEN IN THE LEGAL
PROFESSION
Senior Advocate, Supreme Court,
Pradeep Rai: I do not think that
women now get a raw deal in the legal
profession. Aishwarya Bhati and many
others like her have proved that women
can be successful lawyers. The represen-
tation of women as judges has also seen
a gradual increase over the years. Some
people believe that the environment in
Indian courts is not conducive for
women lawyers because they face diffi-
culties and harassment from their male
counterparts. However, I do not share
this view. I agree that in India, women
have to work harder than men to suc-
ceed in a profession because our tradi-
tion is such that it is expected that a
working woman pays equal attention to
running household chores. But if a
woman decides that she will not be
JUDGE’S VIEW Justice K Sreedhar Rao in a
lighter moment
THINKING CAP Professor BT Kaul,
chairperson, Delhi Judicial Academy
TIME TO PONDER Subhash Kashyap, former
secretary general of the Lok Sabha
FRESH INSIGHT Ved Kumari, head,
law faculty, Delhi University
MAKING A POINT Manoj Sinha, director,
Indian Law Institute
HOLDING FORTH Senior advocate MC
Dhingra all set to answer a question

mention impeachment process for the
chief justice or any member of the judi-
ciary. The term impeachment has been
very loosely used in the judiciary.
Subhash Kashyap: There is no provi-
sion in the Constitution for impeach-
ment of a judge. It is only for the presi-
dent of India that impeachment is pro-
vided. There is a provision for removal
of judges but the procedure is not for
impeachment.
EXECUTIVE VS LEGISLATURE
Inderjit Badhwar, Editor, India Legal:
This is something I want to know from
Professor Baxi. Our Constitution wanted
legislators to be as independent from
the Executive as possible. But today, we
see that the Legislature has become a
slavish extension of the Executive. This
subject, I feel, has not been dealt with.
Do you feel that the Constitution proba-
bly needs to be tweaked to ensure true
separation of powers?
Dr Baxi: A cabinet form of governance
has been converted into a prime minis-
terial form of government from Pandit
Nehru’s time. That is a basic flaw be-
cause the prime minister is only one
among equals as per the norm envisaged
by the framers of the Constitution. The
people of India seem to have accepted a
de facto amendment of the Constitution.
The PM can’t treat the entire cabinet as
a footnote. The question really is: Why
have we accepted this change and when
will we protest?
—Compiled by Lilly Paul
bogged down by these traditions, then
nothing stops her from succeeding.
Aishwarya Bhati, additional advocate
general, UP: Traditionally, the legal
profession has been a male bastion and
litigation was something women did
not choose as a career option as it was
not conducive for them. But I see a lot
of women lawyers doing very well now
and the glass ceiling has been breached.
Women lawyers are very motivated. The
attitude of the judiciary towards women
lawyers is also becoming increasingly
positive. Presiding judges give women
lawyers a very patient hearing and this
is something that is very encouraging,
especially as a bulk of senior advocates
is men.
Manoj Sinha, director, Indian Law
Institute: We have an intake of brilliant
women. However, they simply want to
go abroad complaining that there is no
proper environment in India for prac-
ticing law. I see a distinct reluctance
among women to pursue a career as a
lawyer in Indian courts.
JUDICIAL ACTIVISM
Justice K Sreedhar Rao, former act-
ing chief justice of Gauhati High
Court: In the course of time, some
things have gone awry and led to criti-
cism of the manner in which judicial
activism is supposedly coming in the
way of the Executive. However, the situ-
ation has to be looked holistically as
sometimes, there might be lapses on the
part of the Executive and the
Legislature and so the Judiciary has to
step in as the custodian of law.
Subhash Kashyap, former secretary
general of the Lok Sabha: It was said
here that if the Executive and Legis-
lature fail to do their job, then the Judi-
ciary is the only alternative. My point is,
if the Judiciary doesn’t do its job, can
members of Parliament sit in courts
and do its job?
IMPEACHMENT MOTION
AGAINST CHIEF JUSTICE
Justice SK Singh: I agree with Mr
Kashyap. The Constitution doesn’t
SPEAKING FOR WOMEN Former Supreme
Court judge Gyan Sudha Misra
EDITORSPEAK Inderjit Badhwar makes a
forceful point
HONOURING A TEACHER Senior advocate Supreme Court and Chairman, ILRF, Pradeep Rai,
felicitating Dr Upendra Baxi at the conclave as Justice Shiva Kirti Singh looks on

Supreme Court/ MoP and Allocation of Cases
Issues of Propriety
Thehighestseatofthejudiciaryhasbeengrippedbythesetwocontentiousmattersand
itcouldtakesometimetosortthemoutconsideringhowcomplextheyare
By Sujit Bhar
cial judge BH Loya, who was presiding
over the fake encounter case of
Sohrabuddin Sheikh.
The MoP deals with the procedure of
appointment of judges to the higher
judiciary and is an issue where the
Executive and the Judiciary don’t see
eye to eye. The judges had said that
“when the MoP was the subject matter
of a decision of a Constitution Bench of
this court, in Supreme Court Advocates-
on-record Association and Anr vs Union
of India, it is difficult to understand as
HEN the four judges
of the Supreme
Court—Justices Jasti
Chelameswar, Ranjan
Gogoi, Madan Lokur
and Kurian Joseph—
“revolted” against Chief Justice Dipak
Misra, they were primarily irked by two
issues—their involvment in the finalis-
ing of the Memorandum of Procedure
(MoP) and allocation of cases to specific
benches. This related specifically to the
case dealing with the death of CBI spe-
WWE REST OUR CASE
(L-R) Justice Kurian Joseph,
Justice Jasti Chelameswar,
Justice Ranjan Gogoi and Justice
Madan Lokur address a press
conference on January 12
UNI

to how any other bench could deal with
the matter”.
The rift between the collegium, com-
prising of the chief justice and these
four senior judges, and the Executive
came out in the open recently in the
case of Uttarakhand Chief Justice KM
Joseph. He had been recommended by
the collegium on January 10, 2017, to be
elevated as a judge in the Supreme
Court. The other name which was rec-
ommended at the time was Indu
Malhotra, a senior advocate of the
Supreme Court. So far, Malhotra’s eleva-
tion—she would be the first woman
advocate to directly join the Supreme
Court bench without being a judge—has
not seen any hurdle.
The collegium had made a strong
recommendation for Justice KM Joseph
as a Supreme Court judge and had said
that he was “more deserving and suit-
able in all respects than other Chief
Justices”. However, the government was
not too keen, and the reason for its
unhappiness was that a Uttarakhand
High Court bench headed by Justice
Joseph had in 2016 set aside the order
imposing President’s Rule in the hill
state. It was a huge victory for the oppo-
sition and a moral defeat for the centre.
In such a scenario, the MoP gathers
immense importance, not only because
the government has yet to okay the pro-
cedural recommendations that the top
court had sent to it, but the Executive
has been finding every occasion to bring
it up. On Constitution Day (November
24 last year), Law Minister Ravi
Shankar Prasad had brought up the
Justice CS Karnan issue and hinted
darkly that maybe Karnan’s assertions
(of corruption within the judiciary)
could have been looked into. The
Karnan episode has been an Achilles’
Heel for the judiciary.
It has been alleged in the media and
elsewhere that the fact that these four
judges had been kept out of a constitu-
tion bench that will decide eight impor-
tant cases (Aadhaar included), meant
that the CJI was “getting back” at them.
However, the issue of allocation of
cases also saw four former judges—
Justice PB Sawant, a former Supreme
Court judge; Justice AP Shah, former
Chief Justice of the Delhi High Court;
Justice K Chandru, a former judge of
the Madras High Court and Justice H
Suresh, a former judge of the Bombay
High Court—writing a letter to the CJI,
advising him not to let “junior” judges
“arbitrarily” head benches in important
cases.They said: “This issue needs to be
resolved and clear rules and norms must
be laid down for allocation of benches
and distribution of cases, which are
rational, fair and transparent.”
Chief Justice Misra is due to retire in
October and the tradition has been
JUDICIAL INDEPENDENCE ON TRIAL
The centre has made it known that it is
unhappy with the elevation of Uttarakhand
Chief Justice KM Joseph (right) to the
Supreme Court (below)
OnConstitutionDay,LawMinisterRavi
ShankarPrasad(below,right)hinted
darklythatmaybetheassertionsof
JusticeCSKarnanaboutcorruption
couldhavebeenlookedinto.
Anil Shakya

that the retiring chief justice recom-
mends his successor. It remains to be
seen if Justice Gogoi, who is next in line,
gets that recommendation.
ALLOCATION OF CASES
The other major issue in which the four
senior judges had expressed displeasure
was the allocation of cases. Technically,
while the CJI is the master of the roster
and the administrative head of the
court, all judges of the top court are
held to be equal, with the CJI being only
“first among equals”. However, a letter
from the four judges to the chief justice
implied that it apparently wasn’t so.
The letter criticised the “Master of
Roster” power and said: “(The) conven-
tion of recognising the privilege of the
Chief Justice to form the roster and
assign cases to different benches
of this court is a convention devised for
the efficient functioning of the court,
but it is not a recognition of any
superior authority, legal or factual,
over his colleagues.”
The judges reportedly said that
“there have been instances with cases
bearing far reaching consequences for
the nation and institution has been
assigned by the Chief Justice of this
court selectively to the benches of their
preferences without any rational basis
for such assignments. This must be
guarded against at all costs”.
The allocation of the Loya case—it is
with a bench of the chief justice—seems
to be a case in point, say insiders and it
saw many heated exchanges in the
Supreme Court. Initially, the case was
allotted to a bench which had Justice
Arun Mishra in it. But as questions were
raised over its allocation, Justice Mishra
virtually broke down under pressure
and not only adjourned the case but
directed senior counsel Harish Salve
(who was representing the Maharashtra
government) to hand over all relevant
documents to the petitioners seeking a
probe. Salve said that sensitive parts be
blacked out, but Justice Mishra dis-
agreed, saying that the petitioners
should know everything. The order
in this case said: “Let the documents be
placed on record within seven days and
if it is considered appropriate copies be
furnished to the petitioners. Put up
before the appropriate bench.”
That had raised questions and when
the rebel judges called for its realloca-
tion to an “appropriate” bench, they
were obviously talking about those with-
in the collegium.
Whether it was a justified claim
remains debatable, but when the judges
said in their press conference that
there was no politics involved and that
they simply had to take this step “so that
20 years down the line wise men do not
say that the four judges had sold their
souls”, some sort of impropriety
was implied.
Justice Arun Mishra’s name was not
mentioned by the four judges, but when
a question was asked during the press
conference held by them on whether
their protests had anything to do with
the allocation of the Loya case, Justice
Gogoi said “yes”. Justice Mishra had said
that he has been working hard and was
overburdened. In his “defence”, he had
said that even before, other chief jus-
tices—TS Thakur and JS Khehar—had
assigned tough cases to him. He is said
to have told the four judges that he was
unnecessarily targeted in the controver-
sy and had sincerely discharged his duty
as a judge.
While Chief Justice Misra was taking
an emotional Justice Mishra to his
chamber, Justice Chelameswar put his
arm around his junior’s shoulder and
told him that it had only been about
issues and not any particular judge.
Nonetheless, allocation of cases is a
serious issue and Justice Arun Mishra
had found himself in the firing line over
this issue.
—With inputs from Navank S Mishra
WhiletheCJItookanemotionalJustice
Mishratohischamber,Justice
Chelameswarputhisarmaroundhis
shoulderandtoldhimthatithadonlybeen
aboutissuesandnotanyparticularjudge.
CURIOUS DEVELOPMENT
CJI Dipak Misra (above) is hearing the
BH Loya (above, right) death case after
a bench headed by Justice Arun
Mishra (right) ordered that it be put up
before an “appropriate bench”
Supreme Court/ MoP and Allocation of Cases

Now, would-be mothers having chil-
dren by surrogacy, will also get
maternity leave. The department of per-
sonnel and training has sent out an
instruction to all the central ministries
and departments to implement a 2015
Delhi High Court order granting materni-
ty leave to women employees having kids
through surrogacy. The “commissioning
mother” would get leave for both the pre-
natal and post-natal period, for up to 180
days, like the normal maternity leave. The
HC had passed
the order on a
plea filed by a
Kendriya Vidya-
laya teacher who
was denied mater-
nity leave because
she had a child
through the surro-
gacy route.
Briefs
The Delhi Legal Services
Authority (DLSA), along with
the District Legal Services Authority
(East, Northeast and Shahdara),
organised a mega legal services
camp based on the Delhi High
Court’s golden jubilee motto of
“Justice for All”. Several stalls
were put up including that
for Aadhaar cards, senior citizens
schemes, senior citizen legal
assistance, labour laws assistance,
Delhi Police assistance, Delhi health
schemes, banking assistance, traffic
assistance, and so on. Almost
5,000 people attended the
camp. The attendees were promised
“justice at the doorstep” with
the organisation of many more
such camps at different places in
the future.
DLSA organises mega
legal services camp
—Compiled by Lilly Paul
The All India Muslim
Personal Law Board
will soon release a model
nikahnama in which the bride-
groom will have to undertake
that he will not divorce his
wife through instant triple
talaq. The Board, in its annual
convention to be held from
February 9 to 11, will release
the new marriage contract
making it mandatory for all
Muslim men to commit that
they will not resort to instant
triple talaq. If a man still gives
divorce using instant triple
talaq, the marriage contract
could be used as a proof to
challenge it in court.
The decision of the Board
comes after the Lok Sabha
passed the Muslim Women
(Protection of Rights on
Marriage) Bill criminalising
instant triple talaq, nearly a
month ago.
Maternity leave also for women
having child through surrogacy
Five high courts get
new chief justices
Tripletalaq:Muslimgroomstotakeoath
The Centre has notified the
appointment of new chief jus-
tices to five high courts—Kerala,
Karnataka, Tripura, Manipur and
Meghalaya. Justice Tarun Agarwala
of the Allahabad High Court will be
the new chief justice of the
Meghalaya High Court while
Justice Abhilasha Kumari of the
Gujarat High Court will now lead
the Manipur High Court. Justice
Antony Dominic, acting chief jus-
tice of Kerala High Court, has been
elevated as the chief justice of the
same court. Justice Dinesh
Maheshwari, chief justice of
Meghalaya High Court, will now be
the chief justice of the Karnataka
High Court. Justice Ajay Rastogi of
the Rajasthan High Court has been
appointed as the new chief justice
of the Tripura High Court.
Bombay HC grants relief to man denied job due to tattoo
The Bombay High
Court, through a
verdict, has brought
relief to a petitioner,
Shridhar Mahadeo
Pakhare, after he was
refused a job by Central
Industrial Security Force
(CISF) due to a tattoo
on his arm. The Bombay
High Court directed the
CISF to reconsider
Pakhare’s application as
he was found fit for the
post. The petitioner’s job
claim was rejected
because he was declared
unfit due to the tattoo.
The bench of Justices
RM Borde and RG
Ketkar held that the
tattoo is a religious
symbol and one cannot
be forced to remove it.

HE Sohrabuddin Sheikh
fake encounter case in
Gujarat in November 2005
has seen many hostile wit-
nesses. The latest to turn
hostile, the 28th one, in
fact—was a dhaba owner in Sahajpur
area of Pune district. He had said in his
deposition to the CBI in November 2011
that he had seen Tulsiram Prajapati, an
associate of Sheikh, sitting in a police
vehicle outside his dhaba when the acc-
used policemen had stopped to have a
bite. However, in his latest deposition,
he said he had seen nothing.
India Legal found out from reliable
sources that just as the special public
prosecutor in the CBI court started que-
stioning him in January this year, he
denied his own statement given in 2011.
He had said earlier that as his dhaba
was on a highway, policemen often used
to come from Maharashtra, Gujarat,
Karnataka and Andhra Pradesh to have
a bite there. He said that some Gujarat
Courts/ Bombay High Court/ Sohrabuddin Case
Yet Another Hostile Witness
EvenastheCourtquashedatrialcourt'sorderbarringjournalistsfromreportingproceedings
inthisfakeencountercase,adhaba ownerturnshostile
By Ramesh Menon in Pune
questioned by the public prosecutor, he
repeatedly said that he knew nothing of
these details and had never said any-
thing of the sort. He also said that he
was not lying to save the accused.
The CBI had said that Prajapati was
a witness to the abduction of Sohrabu-
ddin and his wife Kausarbi and was,
therefore, killed in a fake encounter in
2006. Incidentally, the encounters took
place when Narendra Modi was the
chief minister of Gujarat and Amit
Shah, the home minister.
This vital deposition of the dhaba
owner came at a time when there was
an unusual gag order on reporting the
proceedings in this case. On November
29, Abdul Rehman, one of the accused,
moved an application pleading that the
press be restrained from reporting the
case. In his petition, he claimed that the
case was sensitive as several senior po-
lice officials were named as accused.
News reports, he claimed, would lead to
“sensationalism” and threaten “national
T
cops had come to his dhaba in two Tata
Sumo vehicles and told him that they
had picked up a criminal from Hyder-
abad and were heading to Gujarat. He
had even identified Prajapati after being
shown his photograph. However, when
TheCBIspecialjudgebannedthemedia
frompublishing,postingorreportingthe
courtproceedingsintheSohrabuddin
Sheikh(aboveright)andTulsiram
Prajapatifakeencountercases.
SAVING THE WATCHDOG
The Bombay High Court order
hailed the press as the most
powerful watchdog of society

“…thepresenceofthepress
andpublicprotectsthe
integrityofthetrial;andpublic
awarenessofcourtproceedings
helpsmaintainconfidencein
thejudicialsystem…”
—JusticeRevatiMohite-Dere,
BombayHC
security”. Several other accused in the
case supported his plea.
Soon after, CBI special judge SJ Sha-
rma banned print, electronic and social
media from publishing, posting or rep-
orting the court proceedings in the Soh-
rabuddin Sheikh and Tulsiram Praja-
pati fake encounter cases.
H
owever, in a landmark judg-
ment, the Bombay High Court
quashed the trial court's order
barring journalists from reporting these
proceedings and hailed the press as the
most powerful watchdog of society.
In its 39-page order, the Court
underlined that the press were the eyes
and ears of the public and by reporting
court proceedings and happenings in
the court, it was fulfilling the public’s
right to know and also understand the
working of the courts. It ruled that the
special CBI court had overreached its
powers by issuing the gag order. “The
right of the public to information flows
from the right of the press under Article
19 (1) (a) of the Indian constitution,”
Justice Revati Mohite-Dere said. She
said that the media had a right to free-
dom of expression and also served a
larger public purpose by disseminating
or being the carrier of information that
would otherwise not be easily available
or accessible to the public. “The de-
mands of a democratic society are that it
must know what is happening in the
country,” she said.
Sources also indicated that there was
a possibility that there would now be a
fresh plea by some of the accused to
shift the case to the Supreme Court.
India Legal has learned that Abdul Reh-
man is now contemplating challenging
the order of Justice Mohite-Dere.
Justice Mohite-Dere’s order said that
the press was the most powerful watch-
dog of public interest in a democracy
and so its presence in criminal trials en-
couraged all participants to perform
their duties diligently and conscientious-
ly. “It discourages misconduct and abuse
of power by the prosecuting agency,
prosecutors, judges and others,” she said.
The judgment is seen as important as
it clearly says that mere apprehension of
the accused that the media may sensa-
tionalise the proceedings was not a suffi-
cient ground for banning reportage on a
case. The judgment said that the pres-
ence of the press discouraged partial
and biased decision-making and discou-
raged witnesses from committing per-
jury. “In that sense, the presence of the
press and public protects the integrity of
the trail; and public awareness of court
proceedings helps maintain public con-
fidence in the judicial system…The Cri-
minal Procedure Code makes it clear
that an open trial is a rule and an excep-
tion can be made only on rare occasions.
The words ‘open courts’ are significant
since they affirm that the public is enti-
tled to know whether the justice delivery
system is adequate or not,” she said.
The defence pointed out media
reports raising doubts about the death
of Justice BH Loya, who was previously
presiding over the same case until he
suddenly died. On November 20, Loya’s
family pointed out suspicious circum-
stances surrounding his death at a time
when BJP president Amit Shah was still
an accused in the case before he was
acquitted, prompting numerous calls for
an official inquiry into the matter. “By
giving such natural death the colour of
killing him” the media had created con-
cerns that something untoward might
happen, argued the defence counsel.
The petitioners, a group of senior
court reporters and a Mumbai-based
journalists' union, contented that under
the Criminal Procedure Code, only
high courts and the Supreme Court can
issue such prohibitory orders. And
that too in rare cases and for a limited
period of time. The Court agreed with
their contention.
Lawyers Aabad Ponda, Mihir Desai
and Abhinav Chandrachud, appearing
for the journalists, argued that the ban
on reporting was illegal. People had a
right to know what transpired during
the trial as it had a large element of
public interest, they said.
Clearly, we will hear a lot more on
this case.
AWAITING JUSTICE
Mother of Tulsiram Prajapati demanding
justice for his son killed in a fake encounter
truthofgujarat.com

Defence/ Indo-Pak Ties/ Ceasefire Violations
HE constant conflict of
attrition on the Jammu and
Kashmir border with
Pakistan along the Line of
Control (LoC) and
International Border (IB) is
not a recent phenomenon as many of us
may believe. The seeds of this crisis were
sown in 1947-48, when the Razakkars/
Kabaylis raided Kashmir under the pol-
itical orders of the newly formed gov-
ernment under Mohammed Ali Jinnah.
Since then, Pakistan’s aim to bleed India
with a thousand cuts has led to the pres-
ent situation.
Today, there is a conflict in the form
of constant firing along the 780 km of
the LoC and 180 km of IB. The ceasefire
violations in 2017 alone have been 860
and 180, respectively. The intensity of
the cross border violations is so much
that in the last five weeks, there have
been 241 ceasefire violations and nine
armed forces personnel have been mar-
tyred, including an Air Force comman-
do. According to the Indian Army chief,
the causalities amongst the Pakistani
forces are far higher as both sides are
bringing in heavier weapon systems like
rocket launchers, mortars and light to
medium artillery. With such an escala-
tion, and Pakistan infiltrating more and
more terrorists into the Indian territory,
there seems to be very little or no space
for any sort of rapprochement or confi-
dence building measures.
Why have ceasefire violations
increased at such an hectic and violent
pace, is a question haunting military
thinkers and leaders. Though the ten-
sion along the LoC has been going on at
nearly regular basis with varying degree
of intensity, it became serious in 2003
when the retaliation from the Indian
side was intense, bringing in a period of
comparative peace for some time.
However, the turning point was in
July 2016, when largescale protests
started following the death of Hizbul
leader Burhan Wani. Eighty civilians
lost their lives with more than 1,000
people seriously injured, including a
large number of security personnel. The
situation deteriorated when an army
base was attacked by militants near the
Uri town and 19 Army soldiers lost their
lives. At a meeting of the Cabinet
Committee on Security on September
24, 2016, broad details and plans of tar-
geting various terrorist locations inside
POK were discussed. The subsequent
surgical strikes on September 29 by
India were the outcome.
The result was that Pakistan
increased the intensity of firing across
the border and the incidents of ceasefire
violations rose sharply from September
30, 2016 onwards. The casualties of
many civilians living close to the border
were the result of Pakistan gunners get-
CrossingtheLine
Thedeathofanarmycaptainandthreesoldierslastweekwas
anothergrimreminderofthehumancostofthenear-constant
cross-borderfiringbyPakistaniandIndianforces
By Praful Bakshi
FIGHTING A
PROXY WAR
Union Minister for Defence
Nirmala Sitharaman laying
a wreath on the mortal
remains of Captain Kapil
Kundu (inset) killed on
February 4, 2018 along
LoC, in New Delhi.
Chief of Army Staff
General Bipin Rawat is
also seen.
T
PIB

India Legal 19 February 2018

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India Legal 19 February 2018