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India Legal 25 February 2019

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Twenty-eight years have gone by and there is still no movement on the murder charge against the Bihar chief minister. We scrutinise the FIR and related documents

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India Legal 25 February 2019

  1. 1. NDIA EGALL ` 100 I www.indialegallive.com February25,2019 Justice Surya Kant: Facing a headwind Delhi Judgment: Confusion rules Twenty-eightyearshavegonebyandthereisstillnomovementonthemurdercharge againsttheBiharchiefminister.WescrutinisetheFIRandrelateddocuments Twenty eightyearshav onebyandtherTwenty eightyearshaveeggonebyandther Justice Delayed Nitish Kumar:
  2. 2. N October 2018, I wrote an editorial for India Legal in which I observed that what started off as political sparring between the Opposition and the Modi government over the Rafale aircraft deal could well turn into the Bofors-type knockdown and drag-out which brought the Rajiv Gandhi government to its knees. I tempered this, though, with some cau- tion: “While I am not predicting that this defence arrangement, which has raised alarms of crony capitalism and shady quid-pro-quos, may be the ultimate spoke in the wheels of the Modi jugger- naut, there is scarcely any doubt that its shadow will loom over the upcoming general election in 2019.” We were not too far off the mark. At that time, l’affaire Rafale had gained national currency be- cause the Supreme Court had examined a petition questioning the bona fides of the transaction. While the apex legal body refused to delve into the price and related technical specifications of the contract, or to issue notice to the government in the matter, it nonetheless asked the centre to provide details of the decision-making process in a sealed cover. The petition had sought a directive from the apex court asking the centre to reveal details of the Rafale deal along with price comparisons. The government had sought dismissal of the PILs filed in the case, citing politics as the motive behind the challenge. Attorney General KK Venugopal, stressing national security as the main reason to preserve secrecy, argued that the Court was being misused in order to gain political bene- fit for the forthcoming elections. Subsequently, the Supreme Court gave a clean chit to the government even as critics howled that all relevant documents and notations had not been provided to the Court and that the CAG report referred to by the judges had not even been finalised. And now that the CAG report has been tabled, it has opened up another can of worms for the Modi government in which pricing, perform- ance and guarantees have become major issues. While politicians trade charges on specifics, one macro issue that fails to receive adequate atten- tion is that Modi’s most attractive promise during his tenure—Make In India (the initiative for con- verting this nation into an attractive international manufacturing hub)—has taken a public beating. In the midst of the current din in the media which has left most people confused, we repro- duce from earlier stories written in India Legal a synopsis and timeline in order to make some sense out of the mess: The new Rafale deal is a defence agreement bet- ween the governments of India and France for the purchase of 36 Rafale fighter aircraft in fly-away condition. It is part of the upgrading process of Indian Air Force equipment. Specifically, petitions by two lawyers had requested a Court-monitored investigation into the `59,000-crore deal for 36 fighters from France’s Dassault. The Rafale deal was announced in 2015 after Prime Minister Narendra Modi’s talks in Paris with then French President Francois Hollande. The Opposition has accused the government of going for a not-so-favourable contract to benefit Anil Ambani. Both the government and the busi- ness tycoon have denied the charge. The Rafale controversy soared sharply after Hollande’s com- ment in an interview in France in September 2017 that his government was virtually arm-twisted into the selection of Anil Ambani’s start-up, Reli- ance Defence, as India offset partner for Dassault. As part of the offset clause, Dassault has to ensure that business worth at least half the amount— `30,000 crore—is generated in India. Several months before Hollande’s statement, and well before this controversy hit the headlines, an India Legal editorial, painting on a larger but related canvas, called Prime Minister Modi’s “Make in India” initiative “a bit of a flop”. The edi- torial cited the new Rafale deal as a prime exam- ple of bad tidings for India’s attempts at becom- THE ABC’s OF L’AFFAIRE RAFALE Inderjit Badhwar Letter from the Editor I WithChinanow wieldingitsnext- generationfighters inTibetandthe situationinKashmir remainingexplosive, itisimperativethat thegovernment pullsoutallstops andrapidly proceedswiththe processbegunin 2016—toidentifya suitablelighter fighterwhichisnot onlyofthenext generationbutcan beprocuredinlarge numbersatafford- ablecostandwithin thenextthreeyears. | INDIA LEGAL | February 25, 2019 3
  3. 3. ing a self-sufficient manufacturer of armaments for its defence. The defence sector, anointed as the lead agency in what could have been a laudable scheme, “en- visaged to galvanise manufacturing, continues to languish at the altar of procedural delays and has failed to demonstrate its true potential”. (This is not criticism from some opposition party or lan- guage from the recent petition before the Sup- reme Court, but rather, the words of India’s own Ministry of Defence which has written a stinging indictment of the lethargy that so often overtakes and stymies otherwise praiseworthy enterprise.) In particular, the report, addressed to the prime minister, says that the “desired level of indigeniza- tion and self-reliance in defence manufacturing research and development and timely equipping of Service are some of the areas where the situa- tion continues to be far from satisfactory”. Perhaps the prime minister himself has some- thing to answer for on this subject. India has hardly been transformed into a “come hither” nation during the last three years of Narendra Modi’s governance. The ease of doing business, notwithstanding official statistics, is no easier than before. The corruption index, high taxation, countervailing duties and protectionism remain high. There is a loss of confidence in the banking system. Consumer buying has ebbed since demon- etisation. New investments are not even worth talking about and Chinese goods are literally swamping the marketplace. At a sectoral level—defence—the continuing Rafale purchase for the Air Force appears to be eating into Modi’s grandiloquent design. For more than two decades, defence experts have been pre- dicting a virtual existential crisis for the Indian Air Force. Its frontline fighter strength has inex- orably depleted, with the inevitable phase-out of obsolescent aircraft, scientifically predicted according to their age, airframe fatigue, outmoded systems and laughable armament avionics. The much ballyhooed “two-front war” would be noth- ing short of a disaster under these circumstances. The Rafale deal by the Modi government drasti- cally reduced the IAF’s requirement with no advantage to Indian industry. The “Make in India” bombast was defeated by the same person who coined the phrase! T he points elaborated below explain the Rafale controversy in a condensed but comprehensive chronological perspective: 1. More than 20 years ago, IAF planners began identifying options to keep their strength at the sanctioned 42 combat squadron level, specifically to replace the 20 squadrons of MiG-21 variants plus 10 squadrons of MiG-23s/27s which consti- tuted the bulk of the IAF combat force, with next- generation multi-role fighters. 2. In fact, this situation was well understood much earlier, when in 1983, the Government of India constituted the Aeronautical Development Agency (ADA) to manage, fund and monitor progress of the light combat aircraft (LCA) to be indigenously designed, developed and manufac- tured in India to meet the IAF’s expected MiG-21/27 replacement requirements from the late 1990s. 3. This programme has tragically floundered for over three decades. The handful of Tejas LCA Mark-IIs produced by HAL for the IAF have fun- damental flaws in their essential design due to inexperienced engineers at ADA and inadequacy of production infrastructure at HAL, Bengaluru. In consequence, instead of some 200+ LCAs serv- ing with the IAF already, there is today just one Letter from the Editor 4 February 25, 2019 FAVOURED PARTNER Anil Ambani boarding a Rafale fighter jet for a sortie during Aero India 2017 at Air Force Station Yelahanka in Bengaluru Photos: UNI
  4. 4. LCA squadron under raising, equipped with just a handful of LCAs which too have doubtful opera- tional capability. 4. The possibility of this situation had alarmed IAF planners in the late 1990s when the govern- ment was urged to hedge against continued delays in the LCA programme and efforts made to induct 126 Mirage 2000s to supplement the 50-odd Mirage 2000s already in IAF service, which were considered the most effective multi- role fighters extant. This requirement was accept- ed by the government and was the basis for for- malisation of the “Medium Multi-Role Combat Aircraft” programme, with the IAF shortlisting four fighter aircraft types that best met its re- quirement. These were the Dassault Mirage 2000, Lockheed Martin F-16, Saab Gripen and MiG- 29M (later re-numbered MiG-35). 5. The initial request for information (RFI) was sent to the four companies in 2004 but, inexplica- bly, the follow-on request for proposal (RFP) was delayed till 2007. When it was finally made, amazingly, it included far heavier, complex and very expensive aircraft types such as the Eurofighter Typhoon, Boeing F-18 Super Hornet and Dassault Rafale. 6. This was considered by experts as being most unprofessional since the very purpose of having a “medium” multi-role fighter to replace the MiG- 21/27s (by implication also affordable in large numbers) was now completely defeated. The MMRCA competition became farcical as, even though six different fighter types were strenuously evaluated, and included flight-testing and arma- ment-firing, the shortlisted types were not only 50 percent heavier than the MMRCA specifications, but at least twice as expensive to procure and multiple times more expensive to operate. As a wag put it: “Some termed this as comparing apples with pineapples!” Inevitably, the Dassault Rafale was chosen in January 2012, but the con- tract was not formalised for its procurement and licence production in India (a total of 126 aircraft) floundered till the change of government in 2014. Why? 7. The new prime minister’s flash announcement while visiting Paris in mid-2015, ordering 36 Rafales directly from France with no follow-on transfer of technology or production in India, took the community by surprise as this not only drastically reduced the IAF’s requirement (from 126 aircraft) but gained absolutely no advantage for Indian industry and the “Make in India” bom- bast was defeated by the very person who had coined the phrase! Technically too, the MMRCA tender remained “live” and the other contender (Eurofighter) was still in the running. There could have been an international legal dogfight over this but the losers did not choose to pursue it. 8. The situation in 2019 is very dark for the In- dian Air Force and the only silver lining could be acceptance of its plea to select a single-engine fighter and procure/build this type in India in suf- ficient numbers to arrest the drastic decline of the combat fleet. The handful of Rafales will only equip two squadrons by 2021, while the blighted LCA will equip perhaps another two by the same time. By 2021, however, the IAF will have lost all its remaining 11 squadrons of MiG-21/27s, leaving the service “on a par” with its key adversary, the Pakistan Air Force, which will have about the same number of combat squadrons. 9. With China now wielding its next-generation fighters in Tibet and the situation in Kashmir remaining explosive, it is imperative that the gov- ernment pulls out all stops and rapidly proceeds with the process begun in 2016—to identify a suitable lighter fighter which is not only of the next generation but can be procured in large numbers at affordable cost and within the next three years. The sad irony is that instead of “making in India”, the country is today the world’s largest sin- gle importer of arms. And despite this, it cannot even meet the real defence needs of its air force. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | February 25, 2019 5 RAW DEAL PM Modi and French president Francois Holland in Paris. Modi’s flash announcement on the Rafale deal drastically reduced the IAF’s requirement with no advantage to India whatsoever
  5. 5. ContentsVOLUME XII ISSUE15 FEBRUARY25,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 February 25, 2019 14Inexplicable Delay A 28-year-old murder case has come back to haunt Bihar Chief Minister Nitish Kumar even as he harbours hopes of playing a national role in the forthcoming general election LEAD 18Moment of Reckoning? In a scathing indictment of former UP Chief Minister Mayawati, the apex court has hinted that she may have to return `2,000 crore spent by her on building statues SUPREMECOURT 21Poor Little Rich Man The Supreme Court has reserved verdict on Ericsson’s contempt plea against Reliance Communications and its chairman, Anil Ambani, for failing to pay dues worth `550 crore
  6. 6. | INDIA LEGAL | February 25, 2019 7 CPM’s Hot Potato REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Durbar.............................12 Media Watch ..................50 48 STATES Innovative Crackdown Exasperated by the conduct of accused, judges across various courts in the country, including the Supreme Court, are passing orders which, to ordinary minds, may appear strange 30 LEGALEYE Realty Sop The real estate sector’s long-pending demand for relief may fructify as the centre plans to bring under-construction and finished houses under the GST rate of five percent 34 COMMERCE With the party’s strongmen being accused of criminal conspiracy in the death of a Muslim Students Federation activist in Kerala, it has been left red-faced Split Wide Open Even as the UP government has recommended withdrawal of Muzaffarnagar riots cases against 100 Hindus, a district court has awarded life imprisonment to seven Muslims for killing two brothers 27 COURTS Unceasing Confusion With the Supreme Court split on the issue of who controls Delhi’s bureaucracy, the power tussle between the AAP government and the Lt-Governor has got prolonged 22 Quota Conundrum 47 The Rajasthan government has acceded to the demand for reservations from the Gujjar community but will the move stand judicial scrutiny? 44Blind Allegiance By invoking the National Security Act against three Muslim youth for cow slaughter, the Congress government in MP is using soft Hindutva like the previous BJP regime Appointment Gaffe Our legal team investigates the truth behind the allegations designed to thwart the entry of Himachal Pradesh’s chief justice into the Supreme Court 24 Black Friday In a move aimed at stemming illegal arrests by the police on Fridays, the Madras High Court has said there is no need to apprehend people at the investigation stage 28 Steaming Ahead In an attempt to push ahead with the bullet train project, forest and environmental norms have been given the go-by, thereby threatening areas in national parks and wildlife sanctuaries 32 MYSPACE No Bit Player The death of the CEO of a big cryptocurrency exchange has left $145 m of assets inaccessible and raised questions about the need to regulate this industry 38 ECONOMY 42Yogi’s Loss, Didi’s Gain The tannery industry in Uttar Pradesh has been severely hit by the Clean Ganga project and the Kumbh Mela. Many are shifting base to West Bengal
  7. 7. 8 February 25, 2019 “ RINGSIDE “This is now treason. Mr Narendra Modi is doing what spies do. He is informing somebody of a def- ence matter. He is under oath to protect these secrets and is now giving the secrets to Anil Ambani...the entire defence estab- lishment does not know....This itself will put the prime minis- ter in jail.” —Congress President Rahul Gandhi, accus- ing Prime Minister Narendra Modi of treason “My wish is that the prime minister be- comes prime minister again.” —SP patriarch Mulayam Singh Yadav in Parliament on the last day of the 16th Lok Sabha “I have submitted a written complaint to CBI, demanding strict action, as Rajeev Kumar is trying to influence police officers who can play an impor- tant role in the investigation.…” —Former Trinamool Congress MP Kunal Ghosh, on chit fund scam probes being done in West Bengal “Priyanka and Scindiaji will work for the Lok Sabha election but their mission goes beyond that to the assembly polls. We will not relent until we estab- lish a Congress gov- ernment in UP.” —Congress President Rahul Gandhi at Priyanka's roadshow in Lucknow “Yes, it is true that Sharanagouda came and met me...at the circuit house in Devadurga.... Karna- taka CM Kumara- swamy has indulged in third grade politics by sending Sharana- gouda to carry out a sting on me.” —Karnataka BJP President BS Yeddyu- rappa, on audio clip on poaching BJP MLA “Media trials were there earlier also. But today what is happening is that when an issue is raised, a petition is filed, (and) even before it is taken up by the court, people start discussing what should be the outcome...it has an influence on how a judge decides a case...It is not so much in the Supreme Court....” —Supreme Court judge Justice AK Sikri while speaking at the first Law Association for Asia and the Pacific (LAWASIA) conference in New Delhi “It is an app that peo- ple use for personal use.... If you have a problem with that, don’t watch it. If you ban everything on the basis of whether or not it matches with your values, nothing will be left out….” —Congress spokes- person Khushbu, on a Tamil Nadu minister seeking a ban on mobile app TikTok “The desire of the government is not clean, the intention is not clean….The freedom of speech to speak to people… the freedom to travel in flights, is being cur- bed....This govern- ment is scared of the youth....” —Former UP CM Akhilesh Yadav after he was stopped from going to Prayagraj
  8. 8. Courts | INDIA LEGAL | February 25, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team Larger bench to decide AMU case The Supreme Court directed the centre to fill vacancies in the posts of informa- tion commissioners within six months and said “the process to appoint chief informa- tion commissioner should be same as in the case of chief election commissioner”. A bench of Justices AK Sikri and Abdul S Nazeer passed these directions while hear- ing a PIL filed by social activist Anjali Bhardwaj, rais- ing concerns over vacancies in the posts of information commissioners across the country. The bench further directed the centre to pre- empt vacancies, and initiate the process of appointment of information commission- ers to the Chief Information Commission (CIC) two months before a vacancy arises. It also told the centre to consider eminent citizens too for the posts of information commissioners. During the previous hearings, the bench had slammed the centre for suggesting only the names of bureaucrats (retired as well as serving) for the posts. The Supreme Court directed the National Commission for Mino- rities (NCM) to consider a plea filed by BJP leader and advocate Ashwini Upadhyay seeking framing of guide- lines for identification of minorities on a statewise basis. The bench com- prising Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna also said the NCM should take a decision on the representation within three months. In his petition, Upadhyay argued that the central government, through its 1993 circular, notified only five communities—Muslims, Christians, Sikhs, Buddhists and Parsis—as a “minority” community, without defining “minority” and fram- ing parameters for identification. SC directs NCM to define minorities Select information commissioners: SC Lawyers across the country observed a protest on February 12 to press for their demand for allocation of `5,000 crore in the Budget for the welfare needs of advo- cates. The Bar Council of India (BCI) which had organised the protest claimed that nearly 40,000 advocates participated in the protest in Delhi, and more than 20 lakh on a country-wide basis. The BCI also said that if its demands are not met it will hold another protest on March 2, and may take stronger action to voice its concerns. This threat is being perceived as an attack on the Narendra Modi government, which seems to have lost favour with the BCI. Lawyers observe protest on February 12 Athree-judge bench of the Supreme Court led by CJI Ranjan Gogoi has decided to refer to a seven-judge bench the centre’s petition seeking a direction to withdraw the minority tag from the Aligarh Muslim University (AMU). In 2005, a single judge of the Allahabad High Court had ruled that AMU was not a minority institution. Thereafter, AMU had filed an appeal against the order but it was dis- missed. Later, the Supreme Court stayed the order, as a result of which AMU’s minority status has continued. However, in July 2016, the centre changed its stance and, citing a pre- vious apex court judgment, said that AMU was not a minority institution as it was set up by an Act of Parliament. The principal bench of the National Green Tribunal (NGT) has been taking up cases through video confer- encing on alternate days, in order to compensate for the lack of functional zonal benches. Various zonal benches of the NGT have been shutting down due to shortage of judicial mem- bers. As a result, numerous petitioners have been forced to approach the principal bench in Delhi. Justice Adarsh Kumar Goel, chair- man, NGT, has been han- dling matters of other zonal benches through video con- ferencing. This is a matter of grave concern as envi- ronmental issues from many areas of the country are not being addressed. Shortage of NGT benches a major concern
  9. 9. 10 February 25, 2019 ISTHAT Is hunting legal in India? Hunting is an activity which is consid- ered illegal under Indian law and is pun- ishable with heavy penalties. The Wildlife Protection Act,1972, prohibits hunting of all animals mentioned in the different schedules of the Act, and imposes a penalty on anyone found guilty of hunting. Hunting for pleasure is banned. The only circumstances when a person can hunt, without falling foul of the law, are: (a) when an animal is very dangerous to the human popula- tion; or (b) if an animal has become too disabled or diseased to recover; or (c) when there is destruction of property or crops by a particular animal. Wild ani- mals are the property of the govern- ment, and are therefore protected under different enactments. Hunting has been made illegal to curb endangerment and extinction of wild animals. Can Parliament amend the fundamental rights guaranteed under the Constitution of India? Parliament has the powers to amend the fundamental rights guaranteed under the Constitution, provided such amendment does not violate the basic structure of the Constitution. In a landmark case, the Supreme Court ruled that the fundamental rights can be amended by Parliament. Further, Article 368 of the Constitution deals with the powers of Parliament to amend the Constitution. But the require- ment that the basic structure of the Constitution not be altered poses a limita- tion on the powers of Parliament to amend the fundamental rights. If any fundamental right is closely related to the basic struc- ture of the Constitution, then such funda- mental rights cannot be amended. Some of the basic structure elements of the Constitution include the right to life, secu- larism, unity and integrity of the nation, democracy, sovereignty, and so on. Parliament Can’t Alter the Basic Structure —Compiled by Sankalan Pal Hunting is Illegal Under Indian Law Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis Is freedom of speech and expression absolute in India? Article 19 of the Constitution guarantees to all citizens the fundamental right to freedom of speech and expression. However, it also imposes some restrictions on the exercise of this fundamental right. Therefore, free- dom of speech is not an absolute right under the Constitution. This freedom is sub- ject to the following exceptions: security of the state, friendly relations with other states, defamation, public order, decency and morality and contempt, sovereignty and integrity of India, incitement of an offence. Further, Sections 153A and 153B of the Indian Penal Code (IPC) punish those who promote hatred and enmity between differ- ent religious or racial groups. The IPC also provides that anyone who hurts the religious sentiment of others would be guilty of abusing his freedom of speech. FreedomofSpeechis NotAnAbsoluteRight ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com How can a partnership firm be dissolved? Dissolution of a partnership firm means the discontinuation of all partnership activities between the partners. It is different from dis- solution of a partnership. In case of dissolu- tion of a partnership, the trigger event is the death or retirement of a partner. There is a change in the composition of the partner- ship. The other partner may continue to carry on the business under the same name. The remaining partners may purchase the shares of the outgoing partner. This is disso- lution of the partnership. In the case of dis- solution of the firm, there is dissolution of the partnership also. A partnership firm can be dissolved by agreement under Section 40 of the Partner- ship Act. Just like a partnership firm is cre- ated by an agreement, similarly, a partner- ship firm can be dissolved by an agreement. Section 43 of the Act allows dissolution of a firm by notice. Section 41 deals with certain cases where the dissolution of the firm is compulsory. These are insolvency of part- ners, illegal business activities, expiration of business, completion of work, contingent partnership. A partnership firm can also be dissolved with the help of a court. A Partnership Firm Can be Dissolved by Agreement
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  11. 11. 12 February 25, 2019 It seems the decks have already been cleared for Mukesh Ambani’s Reliance Jio to take over Anil Ambani’s Reliance Communications (RCom) following the fil- ing of bankruptcy pro- ceedings by RCom before the National Company Law Tribunal to seek a fast resolution on paying back its lenders. Once accepted, the company is likely to be up for auction acc- ording to established procedure. In the current sce- nario, only two mobile operators are in the race—Mukesh Ambani’s Reliance Jio and Bharti Airtel. However, interna- tional agency Moody’s Investors Service has, it seems in the nick of time, downgraded the credit rating of Bharti. This could be an insur- mountable hurdle in its claims for taking over RCom. But that’s not all. To make matters worse for Airtel, the government has tweaked the default- ing rules which originally disqualified any compa- ny whose relatives were officials of the defaulting company, from the bid- ding process. Mukesh Ambani can now gobble up his brother’s debt-rid- den company. And this `36,000-crore company could well sell for what amounts to peanuts. The guess is the company will be bought over by paying peanuts, any- where between `2,000- 3,000 core The centre deliberately delayed the meeting of the selection committee to choose the CBI direc- tor by one day to ensure that Rina Mitra, the Madhya Pradesh-cadre,1983-batch IPS officer, doesn’t get the top job. Earlier this week, she was appointed by West Bengal Chief Minister Mamata Banerjee as principal adviser on internal security. This has triggered whispers in Writers’ Building in Kolkata about the exact duties of the new office. A senior IPS officer was quoted as saying, “A post of state security adviser has alre- ady been created. As SSA, former DGP Surajit Kar Purkayastha is enjoying sweeping authority over security and law enforcement agencies. Tra- ditionally, these were responsibilities of the home secretary and the DGP,” while all Mitra could say was: “I’m yet to receive the order. So, I’m not aware of the responsibilities yet. But I think it’ll be related to internal security. Once I receive the order, I’ll take over the responsibilities within the next few days.” Mitra was the only woman among the 11 officers who had been shortlisted for the top job in the CBI. That Mamata lost no time in appointing her to a newly created sensitive job obviously means that the Iron Lady of Kolkata will lose no opportunity to spite the prime minister. PEANUTS! With Mamata Banerjee, Mulayam Singh Yadav and Mayawati blowing hot and cold against the Congress party, NCP chief and proven master of power politics Sharad Pawar is back in the sad- dle as the principal architect of a grand Opposition alliance. Over the past few months, Pawar seemed to have taken a back seat to let N Chandrababu Naidu make similar efforts. Naidu’s recent United Opposition rally was a roaring success. But indications from the Congress camp of breaking its alliance with the TDP, months after the coalition came a cropper in the Telangana polls, have triggered doubts on whether the Andhra CM has the political dexterity and stature to deliver a Mahagathbandhan. Pawar hosted a dinner for leaders of all Opposition parties at his residence on February 13 and achieved the rare feat of getting Congress President Rahul Gandhi and AAP chief Arvind Kejriwal together to discuss an alliance. A senior Opposition leader present at the rally revealed that Pawar managed to convince all present that a pre-poll alliance was the only way to halt a repeat of the 2014 Lok Sabha poll results and even succeeded in getting Kejriwal and Rahul to discuss the possibility of an AAP- Congress alliance in Delhi with the Grand Old Party as a minor partner. The wily politician that the Maratha strongman is, he had also hosted a bipartisan dinner days before the February 14 one, which, aside from Opposition leaders, also had BJP leaders like Nitin Gadkari in attendance. Those who know Pawar well believe that the NCP chief is simulta- neously positioning himself for the prime minis- ter’s post, irrespective of which front comes to power in May. STILL MARATHA STRONGMAN An inside track of happenings on the national stage WELCOME TO KOLKATA The fake-it-till-you-make-it façade of Opposition unity was left in tatters on February 13, the last day of the Budget session and Parliament’s last sitting before Narendra Modi seeks a fresh mandate. Samajwadi Party patriarch Mulayam Singh Yadav, seated next to UPA chairperson Sonia Gandhi in the Lok Sabha, left the Opposition ranks rattled and the BJP all smiles by voicing his hope that Modi returns as prime minister. In the Central Hall, the garrulous West Bengal chief min- ister, Mamata Banerjee, left Sonia Gandhi stunned with her “we’ll not forget this” remark, signalling her anger against the Congress’s top man in Bengal, Adhir Ranjan Chowdhury, for his frontal attack against her and the Trinamool Congress for alleged involvement in the Saradha chit fund scam. The comments by Yadav and Banerjee coin- cided with the rally hosted by the Aam Aadmi Party to project a supposedly united Opposition committed to ousting the Modi government in the upcoming Lok Sabha polls. Later in the day, when asked about his remark, Mulayam seemed to have an amnesia moment, claiming, “I don’t think I said this.” Banerjee, too, told reporters that she was committed to fighting alongside the Congress, and even her arch enemy, the Left, to oust the BJP from power. But by then, the BJP’s spin doctors had already pro- jected a fading mirage of the Opposition unity and the media had lost interest in the clarification. NOW YOU SEE IT NOW YOU DON’T Durbar
  12. 12. Lead/Nitish Kumar/ Murder case 14 February 25, 2019 HE wheels of justice are known to grind very slowly. But turn they do, although in many cases the wait may involve years if not decades. On January 31, 2019, a full 28 years after a case of murder was registered against Nitish Kumar, the Patna High Court reserved judgment on the Bihar chief minister’s petition seeking quashing of cognisance taken against him with the chief minister’s counsel informing the Court that the case was nothing but “political vendetta”. The Court has not indicated a specif- ic date for pronouncement of the judg- ment, but an early—and adverse—ver- dict could spoil the carefully crafted plans of the Bihar Janata Dal (U) leader to take upon himself a larger role in national politics in the run-up to the Lok Sabha elections. The case that has come back to haunt him after nearly three decades relates to the murder of a Congress worker, Sitaram Singh, on November 16, 1991, while repolling was being held in some booths during the elections to Barh Lok Sabha constituency in Patna district. The next day, an FIR was lod- ged by Ashok Singh, who claimed to A28-year-oldmurdercasecomesbacktohauntNitishKumarevenasheentertainshopesof playinganationalroleintheforthcominggeneralelection By India Legal Bureau T Inexplicable Delay Photos: UNI
  13. 13. | INDIA LEGAL | February 25, 2019 15 UNDER THE SCANNER The first page of FIR registered the day after the alleged murder. It implicates Nitish Kumar as the main accused in the murder case SEEKING ARREST The second page of the same FIR. The complainant Rajaram Singh wants that the accused be arrested COURT ORDER The part of an ACJM order. It prima facie makes out a case for offence under Section 302, 307, and Arms Act, against Kumar and others HIDING THE TRUTH An election affidavit filed by Kumar from the Nalanda Lok Sabha constituency in 2004. As per the document, Kumar has not disclosed details of the pending murder case against him FURNISHING PAPERS The notorised declaration that Kumar filed before the 2012 elections ACCEPTING THE TRUTH Part of the same declaration mentioned above. Here Kumar has disclosed the details of the case filed against him
  14. 14. be a relative of Sitaram, in which he acc- used Kumar and several others of hatch- ing a conspiracy to kill Sitaram. Kumar was the Janata Dal candidate in the contest which he went on to win. T he FIR, a copy of which is in the possession of India Legal, states that “Sitaram and Rajaram along with known people had gone to cast their vote in the elections. At the east of the polling booth, the group saw Nitish Kumar, a candidate of Janata Dal, Yogendra, the then Mokama MLA, Dilip Kumar Singh, Dularchand Yadav, and Baudhu Yadav, along with other crimi- nals armed with pistol, rifle, and gun. Suddenly, Nitish, with a deliberate intent of killing Sitaram, fired at him. Sitaram died on the spot.” According to complainant Ashok Singh, four other persons—Suresh Singh, Mauli Singh, Mannu Singh and Rambabu Singh— were injured in the incident. The court of then Additional Chief Judicial Magistrate (ACJM), Barh, Ranjan Kumar, had issued summons to Kumar and Dularchand Yadav under Section 202 of the CrPC. The summons were issued on the basis of statements by two witnesses, Ramanand Singh and Kailu Mahto. The case thereafter was to take a lot of twists and turns. January 31, 1993—Police claim they completed a probe into the case after which they submitted a report, rejecting the charges against Kumar and another accused. Lalu Prasad Yadav was then chief minister. August 5, 2008—The ACJM of Barh accepted the police report and exonerat- ed Kumar, who had by then become chief minister. January 20, 2009—A protest petition was filed in the ACJM’s court, challeng- ing Kumar’s exoneration. April 22, 2009—The Patna High Court ordered a stay on further proceedings in the case at the ACJM’s court, following an appeal against the latter’s orders by one of the charge-sheeted accused. August 31, 2009—The ACJM took cognisance of the protest petition filed in January and ordered summons ag- ainst Kumar. The Court said: “Prima facie case for the offence under Section 147, 148, 149, 302, 307 IPC and 27 Arms Act is being made against both the acc- used persons for which cognisance is 16 February 25, 2019 NATIONAL OUTREACH Bihar CM Nitish Kumar’s dreams of playing a pan-India role in politics rests on the verdict of the Patna High Court in the alleged murder case Thecaserelatestothemurderofa Congressworker,SitaramSingh,on November16,1991,duringrepollingin someboothsduringtheelectionstoBarh LokSabhaconstituencyinPatnadistrict. Lead/Nitish Kumar/ Murder case
  15. 15. | INDIA LEGAL | February 25, 2019 17 taken against them. Office clerk is directed to issue summon for the appearance of the accused person.” August 31, 2009—The ACJM took cognisance against Kumar and Dular- chand and directed the accused to appear before the Court on September 9, 2009. September 8, 2009—Kumar moved the Patna High Court against the cogni- sance and succeeded in securing a stay on the lower court’s order on proceed- ings on the protest-cum-complaint petition. October 28, 2009—The High Court also issued a showcause notice to the ACJM to explain why the order of stay passed by the High Court earlier was violated. May 15, 2010—The High Court admit- ted an application by Radhe Krishna Singh, who claimed to be Sitaram’s brother, challenging the previous High Court order that had stayed the cogni- sance against Kumar. January 31, 2019—The High Court reserved judgment on Kumar’s petition seeking quashing of cognisance taken against him in the murder case. Kumar and his party referred to the case as a matter with political overtones and vendetta, unleashed by the opposition. I n the years since, the case has come in handy for Kumar’s detractors to target him with former ally-turned- bitter foe Lalu never sparing an oppor- tunity to hit out at Kumar. In his inim- itable style, Lalu once tweeted: “Bihar has a murderer in whose stomach there are teeth. He has bitten several leaders and political parties and the poor with his poisonous teeth.” In another tweet, the RJD leader said, “...under Nitish, Bihar has the dubious distinction of see- ing a state whose self-declared patriot CM faces grave charges of murder.” While Kumar awaits the High Court verdict, some respite has come his way from the Supreme Court on a PIL that was an offshoot of the Barh murder case. In July 2017, ML Sharma, a Delhi- based lawyer, had filed the PIL in the Supreme Court seeking cancellation of Kumar’s election to the Bihar Legislative Council on the ground that he had allegedly concealed the pending crimi- nal case against him in the affidavit he filed before the Election Commission. Sharma also claimed that Kumar had hidden his criminal records while filing election affidavits since 2004, except in 2017. In September the same year, in response to the notice from the apex court, the poll body submitted that the chief minister was obliged to disclose any criminal record against him only after cognisance of an alleged offence was taken by a magistrate. He had made such a declaration in the prescribed form in 2012, the commission said, and also pointed out that no such disclosure was required to be made by Kumar post-2012, as he had not contested any election since. In May last year, the apex court dis- missed Sharma’s PIL, saying it was “devoid of any merit”. Sharma, who has a reputation of being a “serial petition- er” filed another PIL, seeking a CBI investigation into the alleged manipula- tion of Kumar’s election affidavits and charged the chief electoral officer of Bihar of aiding the chief minister. He pulled in the Election Commission and even the Prime Minister’s Office as respondents. The court slammed the advocate while throwing out the PIL. Earlier the central Election Commi- ssion, too, had called the PIL “frivolous”, “based on incorrect facts” and “without any cogent evidence”. Nitish is without doubt a charismat- ic leader and an efficient administrator but he knows his hopes of playing a piv- otal role in the forthcoming pre- and post-poll arithmetic will depend to a large extent on what the Patna High Court has to say on the nearly three- decade-old murder case. ThecasehascomeinhandyforKumar’sdetractorstotargethim.Hisformerally- turned-bitterfoeLaluYadavtweeted:“...underNitish,Biharhasthedubiousdistinc- tionofseeingastatewhoseself-declaredpatriotCMfacesgravecharges.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  16. 16. Supreme Court/ Mayawati 18 February 25, 2019 OR Mayawati, the former chief minister of Uttar Pradesh, the day of reckoning seems to be drawing near. The Bahujan Samaj Party (BSP) president may have to return crores of public money which she spent on ins- talling hundreds of statues, including her own, in Lucknow and Noida during her tenure as chief minister. On February 8, the Supreme Court hinted that Mayawati may be asked to return the money—approximately `2,000 crore—from her own pocket. A verdict in the case could settle once and for all the issue of spending public mo- ney on building statues. The former chief minister and several others are al- ready facing an inquiry by the Enforce- ment Directorate for the alleged multi- crore scam. A PIL filed by advocate Ravi Kant in Day of Reckoning? InascathingindictmentoftheformerUPchiefminister,theCourthassaidthatshemayhavetoreturn `2,000crorespentbyheronstatues.Thisisthe17thtimethismatterhascomeupforhearing By Atul Chandra in Lucknow FPROMOTION OR PROPAGANDA? A deluge of BSP supporters at the Kanshi Ram memorial in Lucknow Photos: UNI
  17. 17. Posting the matter for April 2, Justice Gogoi said: “Please come prepared on the next date of hearing… you now know our tentative view.” When senior lawyer and BSP MP Satish Mishra sought a date in May in view of the likeli- hood of Lok Sabha elections being held in April, the CJI refused to heed his request. “No, we won’t defer it. Please don’t make us say anything more. We would want to say a lot more, but don’t make us. Come prepared on the next date,” Justice Gogoi simply said. A late entrant on Twitter, Mayawati tweeted her reaction on the Supreme Court’s observation a day later from her Twitter handle, @Sushri Mayawati, asking the media and BJP leaders to stop kite flying. “Humble request to media please don’t distort oral observation of Hon’ble court. Sure to get justice in this matter also. Media and BJP leaders please stop kite flying.” Another tweet from her justified the memorials. “Marvellous Sthals/Memo- rials/Parks etc. built to honour hitherto ignored great Sants, Gurus and great | INDIA LEGAL | February 25, 2019 19 2009 came up for the first time in the court of Chief Justice Ranjan Gogoi, who remarked: “We primarily think Ms Mayawati should return this money she has spent from the public exchequer on statues, elephants.” Justices Deepak Gupta and Sanjiv Khanna were the other two judges on the bench. Inciden- tally, ever since the PIL against Maya- wati was filed, it has come up 17 times for hearing, but no progress has been made. The PIL had sought a restraint order against the Mayawati government to prevent it from misusing public funds for political advantage. According to the petitioner, about 90 percent of the cul- ture department’s budget was spent on building statues of Mayawati, her men- tor, Kanshi Ram, and the BSP’s party symbol, elephants. men born in deprived and oppressed Dalit and OBCs are new grand identity and tourist attraction of Uttar Pradesh which gives regular income to govern- ment,” Mayawati tweeted, and added that her party’s position will be placed before the apex court at the next hear- ing. SC Mishra also said that too much was being made out of the Court’s observation. Mayawati had attacked the BJP and RSS the day Prime Minister Narendra Modi unveiled Sardar Vallabhbhai Patel’s Statue of Unity in November 2018. She had said: “All those in the BJP and RSS should apologise, especially to the people of Bahujan Samaj” for terming the statues installed by the then BSP government to honour Dalit icons like Babasaheb Ambedkar and others as wasteful expenditure. M oney for Mayawati’s whimsi- cal project, spread over app- roximately 500 acres in Luck- now and Noida, came from budgetary allocations in 2008-09 and 2009-10 and over `2,000 crore was alleged to have been spent on the statues. The Comptroller and Auditor General of India in its report tabled in the UP Assembly in July 2014 had said that the four memorials—Dr Bhimrao Ambedkar Samajik Parivartan Sthal, Manyavar Kanshiram Smarak Sthal, Baudh Vihar Shanti Upvan and Eco Park in Lucknow and Manyavar Kanshiram Green Garden, Noida—were originally sanctioned on an outlay of `943.43 crore in 2007. By the end of her tenure in 2012, this was revised to `4,558 crore. According to one estimate, `4,708 crore was said to have been spent on Dalit memorials and parks in Lucknow alone. These included: `1,363 crore on Ambedkar Samajik Parivartan Prateek Sthal (125 acres); `730 crore on Kanshiram Memorial (70 acres); `655 crore on Ramabai Rally Sthal (51 acres); `460 crore on Baudh Shanti Upvan (10.8 hectares); `1,000 crore on Kanshi- ram Eco Park (70 acres); `300 crore SELF-GLORIFICATION BSP chief Mayawati offering tributes to the party founder Kanshi Ram at his memorial in Lucknow. Also seen is her own statue IntheveryfirsthearingonJune29, 2009,theSChadslammedMayawation theissue.Whileissuingnoticetoher whenshewastheCM,ithadsaidthat publicmoneymustbespentjudiciously.
  18. 18. on Gomti Vihar Park (30 acres) and `200 crore on Gomti Park (20 acres). Besides these, `685 crore was spent on Dalit Prerna Sthal and Green Garden spread over 80 acres in Noida. Two other memorials—Ambedkar Park at a cost of `86 crore over 10 hectares and Buddha Park (`46 crore) over four hectares—were set up in Greater Noida’s Badlapur, Mayawati’s village. With reference to Mayawati, who was in power in 2009, the petition said that hundreds of crores of tax payers’ money was being spent “for personal glorification” by constructing statues of leaders in power. According to the peti- tion, 60 statues of elephants costing over `52 crore were installed in a park which amounted to wasteful expendi- ture of public money. It also claimed that such open display of the BSP’s party symbol was a violation of Election Commission directives. (On the EC’s order, these elephant statues were cov- ered during elections.) In the very first hearing on June 29, 2009, the apex court slammed the BSP chief. While issuing a notice to the state and Mayawati, who was the chief minis- ter, the Supreme Court said: “The huge public funds which are meant for improving conditions of people living below the poverty line cannot be legiti- mately diverted for erecting statues and parks.” While telling the state to set its priorities right, the Supreme Court said that public money must be spent judi- ciously. Mayawati then gave an under- taking that no further construction work would be undertaken at the Dalit memorials in Lucknow. I n 2012, Akhilesh Yadav had called the memorials a `40,000-crore scam. Explaining how he arrived at that humongous figure, Akhilesh said that the price of land used must also be accounted for. Akhilesh’s father, for- mer Chief Minister Mulayam Singh Yadav, had even threatened to demolish the statues. This time around, Akhilesh was dis- creet in his reaction in view of the politi- cal alliance he has entered into with the BSP. “I don’t have full information about this. The Court might have made some observations. BSP’s lawyers will put their side in the Court,” Akhilesh said. Besides the case coming up in the Supreme Court, the Enforcement Directorate (ED) has also registered a criminal case under the Prevention of Money Laundering Act to inves- tigate financial irregularities in the construction of these memo- rials. The ED case is based on a complaint filed by the state vigi- lance department in 2014. The vigilance department alleged that the construction of memori- als had caused “a loss of Rs 111,44,35,066 to the government exchequer and unlawful gain to public servants and private indi- viduals”. ED teams searched the premises of seven officials and other persons in connection with the alleged scam. Earlier, the UP Lokayukta indicted Naseemuddin Siddiqui and Babu Singh Kushwaha, cabi- net colleagues of Mayawati, and 12 BSP legislators for wrong- doing in the purchase of sand- stone for the memorials. It was on the Lokayukta’s report that the vigilance department lodged an FIR against them in 2014. Others mentioned in the FIR includ- ed engineers and officers of Rajkiya Nirman Nigam, Public Works Depart- ment and Noida. In 2010, Mayawati decided to create a special force called the State Special Zone Security Force for the protection of all the Dalit memorials built by her gov- ernment. An amount of `9 crore was allocated for this force of about 1,000 personnel. The recent Supreme Court oral observation, however, has sent confused signals to many. Questions are being raised as to why the top court merely passed an oral order suggesting that Mayawati should return the money instead of just postponing the hearing to a later date? There is also an emerging opinion that the Court may have given away its mindset in the case. It remains to be seen how the SC looks into the matter on April 2. 20 February 25, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Supreme Court/ Mayawati APILfiledbyadvocateRaviKantin2009cameupforthefirsttimeinthecourtofCJIRanjan Gogoi(left).TheotherjudgesonthebenchwereJusticesDeepakGupta(centre)andSanjiv Khanna.TheCJIpostedthematterforApril2,whilestronglyrefusingtodeferitfurther.
  19. 19. | INDIA LEGAL | February 25, 2019 21 Supreme Court/ RCom-Ericsson case HE long and arduous legal battle between Reliance Communications (RCom) and Ericsson is nearing its end as the Supreme Court on February 13 reserved its judgment in the matter. Ericsson had initiated cont- empt proceedings against RCom after it failed to honour the settlement that had been reached between them. As per the apex court’s order of Aug- ust 3, 2018, Ericsson had agreed to rece- ive an amount of `550 crore against the original debt of `1,500 crore. Initially, the deadline was set for September 30, 2018, which was later extended till De- cember 15, 2018. When RCom defaulted on both dates, contempt proceedings were initiated by Ericsson against Anil Ambani. Ambani, along with Reliance Telecom chairman Satish Seth and Reliance Infratel chairperson Chhaya Viran, had to appear personally in court on two consecutive days. Ericsson, represented by senior advo- cate Dushyant Dave, contended that RCom had furnished an unconditional undertaking as per the apex court’s order. And it was on the basis of this undertaking that Ericsson had agreed to a settlement of `550 crore. He further submitted that RCom had earlier agreed to pay the amount, but later reneged on the deal, thus acting in contravention of the apex court’s order. He also said that although RCom cited insufficiency of funds as the reason for non-payment to Ericsson, it had publicly announced that it holds solid assets worth `2,000 crore. Ericsson also submitted that RCom never had any intention of fulfilling the commitment while the order was pend- ing; and RCom had paid a huge amount to DoT (Department of Telecommunica- tions). Bringing out the peculiarity in the case, Dave said that these are not ordinary citizens but well-informed ones, and are wilfully in contempt of court. They have money for Rafale and other matters, he said. RCom, represented by senior advo- cates Mukul Rohatgi and Kapil Sibal, submitted that these debts arose out of a corporation’s obligation, and individuals cannot be held liable for them. Rohatgi further elaborated that contempt would arise only if it were an individual obliga- tion. The bench, comprising Justices RF Nariman and Vineet Saran, heard argu- ments from both sides and reserved its judgment in the matter. In another interesting situation, the apex court dismissed two court masters for allegedly tampering with its order. The court masters allegedly turned an order that had not exempted the perso- nal appearance of Ambani to make it seem as if the order had exempted him. Chief Justice Ranjan Gogoi took the decision on dismissal of the officials. Whatever the final judgment, there is trouble brewing for RCom which is neck-deep in debt and needs a miracle to stay afloat. —Naved Ahmed Tumultuous Battle TheCourtreservedverdicton Ericsson’scontemptpleaagainst RComanditschairman,AnilAmbani, forfailingtopay`550croredues Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com T TAKING ITS TIME The case was heard by Justices RF Nariman (left) and Vineet Saran of the SC; Anil Ambani What does the Contempt of Courts Act, 1971, say? Section 2(b) “Civil contempt means wilful disobedi- ence to any judgment, decree, direc- tion, order, writ or other process of a court or wilful breach of an undertak- ing given to a court.” Section 12(4) “Where the person found guilty of contempt of court in respect of any undertaking given to a court is a com- pany, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of busi- ness of the company, as well as the company, shall be deemed to be guilty of the contempt and the punish- ment may be enforced, with the leave of the court, by the detention in civil prison of each such person. Provided that nothing contained in this sub- section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exer- cised all due diligence to prevent its commission.” Whenisitcontempt?
  20. 20. including the one filed by the Delhi gov- ernment, had sought clarity, the verdict was unanimous but with more reasons for the BJP-led centre and L-G Anil Baijal to rejoice. The bench was unanimous in its view that the Anti-Corruption Branch of the Delhi government cannot investigate corruption cases against central govern- ment officials. It also held that the elect- ed regime had no power to constitute commissions of inquiry. Both these are, arguably, bigger setbacks for the Kejri- wal government than the continuing stalemate on who controls Delhi’s babus. The AAP came into existence riding on the popularity of Kejriwal as an anti- corruption crusader and chief architect of Anna Hazare’s now forgotten Lokpal campaign. The unprecedented victory of AAP in 67 of Delhi’s 70 assembly seats had convinced Delhiites that the Kejri- wal government would move swiftly on graft cases pending against political and bureaucratic stalwarts. To this end, it was essential that the Delhi government exercise control over the anti-corruption branch and have powers to constitute commissions of inquiry. The February 15 verdict has nixed any such ambition of the Delhi government. The only solace that Kejriwal and AAP can draw from the verdict is on two minor counts. The bench held that under Section 108 of Delhi’s Electricity Act, the Delhi government “has power to issue directions to the DERC (Delhi Ele- ctricity Regulatory Commission) in mat- ters of policies involving public interest”. The verdict also held that “Lieutenant Governor, while appointing the Special Supreme Court/ Delhi—L-G Tussle 22 February 25, 2019 EEKS after a Sup- reme Court constitu- tion bench, on July 4, 2018, came down heavily against Del- hi’s Lt-Governor for being an “obstructionist”, the Arvind Kejriwal-led government had moved the apex court seeking clarity on some aspects of the judgment. On February 15, as Justices AK Sikri and Ashok Bhushan tilted the scales back in favour of the Lt-Governor, Kejriwal was left wondering if he had been unnecessarily swayed by the July 4 verdict. The bench of Justices Sikri and Bhushan was split on the crucial ques- tion of who holds the powers to transfer the Delhi government’s bureaucrats and suggested that Chief Justice Ranjan Gogoi constitute a three-judge bench to resolve the deadlock. On five other mat- ters over which a bunch of petitions, Capital Confusion WiththeCourtsplitonwhocontrolsDelhi’sbureaucracy,thepowertusslebetweenthe governmentandtheLt-Governorhasgotmorevexatious By India Legal Bureau STOPPED IN TRACKS Delhi CM Arvind Kejriwal (left) and L-G Anil Baijal have been engaged in a turf war due to the apex court’s delay in deciding the case W Photos: UNI
  21. 21. | INDIA LEGAL | February 25, 2019 23 Public Prosecutor, is to act on the aid and advice of the Council of Ministers”, effectively giving the state government powers to appoint prosecutors. The verdict of the bench on another dispute between the Delhi government and the LG—whether the revenue dep- artment of the state had the power to revise the minimum rates of agricultural land (circle rates)—was only a condi- tional win for Kejriwal. The Court ruled that though the state government had powers to decide circle rates, the L-G can, in case of a difference of opinion, refer the matter to the president. While many sticky issues are now set- tled, confusion continues on whether the Delhi government has the powers to transfer bureaucrats or must defer to the wisdom of the L-G. The July 4 verdict by the constitution bench comprising then Chief Justice Dipak Misra and Justices Sikri, AM Khanwilkar, DY Chandrachud and Bhushan had given broad interpreta- tions of Articles 239 and 239AA of the Constitution which deal with separation of powers between the Delhi govern- ment and the L-G. Chief Justice Misra had authored the majority verdict, with the concurrence of Justices Sikri and Khanwilkar, while Justices Chandrachud and Bhushan had written separate albeit concurring opinions. The majority view of the constitution bench had held that exclusion of the Legislative or Executive power in List II for the Delhi govern- ment was limited to only three subjects—Entries 1 (public order), 2 (police) and 18 (land). The Kejriwal gov- ernment’s argument was that “the issue of exclusion of any other additional Entry either in List II or in List III—the State and Concurrent Lists respective- ly—would not arise”. Senior advocate and Congress leader P Chidambaram, who argued the Delhi government’s case before the bench of Justices Sikri and Bhushan, had submit- ted that in the light of the constitution bench verdict, the Delhi government had powers over Services as these were listed under Entry 41 of List II. Incidentally, Justices Sikri and Bhushan were also part of the constitu- tion bench that had, on July 4, limited the L-G’s powers to matters related to public order, land and police. Justice Sikri on February 14 conceded that the issue of who controls the bureaucracy in Delhi, especially in the light of the July 4 verdict, presents “a very peculiar situa- tion”. He ruled that “it cannot be said that once the manpower (bureaucratic cadre) is allocated to Union Territory of Delhi, the GNCTD should not have any power to deal with such employees”. He thus proceeded to “carve out a just and fair mechanism”. He ruled: “The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the LG and the file submitted to him directly.” He added that officers of ranks below joint secretary can be trans- ferred by the Delhi government. He also suggested that for “greater transparency, a Civil Services Board can be formed which can be headed by the Secretary (Services) for Grades IV and III officials; by the Chief Secretary for Grades II and I level officers”, and that this Board should decide on transfers and postings of such officers. I n his separately penned verdict, Justice Bhushan held that the L-G had absolute powers over transfers and postings of the entire bureaucratic cadre assigned to the Delhi government and that the mechanism suggested by Justice Sikri was not needed. The continued ambiguity over who controls Delhi’s bureaucracy and the rejection of his government’s control over the anti-corruption branch has left Kejriwal incensed. Soon after the ver- dict, he slammed the apex court for met- ing out “injustice to the people of Delhi”. He said: “We have been suffering for the last four years. For every work and for getting each file cleared, if the Delhi chief minister and his ministers have to hold protests and sit on hunger strike at the L-G house, how will the government work? What sort of democracy is it?” This outburst gave the BJP, rejoicing over the setback to the AAP government, added ammunition to slam Kejriwal for being an “anarchist”. BJP spokesperson Sambit Patra even claimed that the party will explore the possibility of moving a contempt of court plea against Kejriwal for his uncharitable remarks against the Supreme Court. With the forthcoming Lok Sabha polls, the BJP will surely go for Kejri- wal’s jugular with the hope of repeating its 2014 clean sweep in Delhi’s seven parliamentary seats. The battle between AAP, BJP and the Congress will now be fought in the people’s court with the administrative stalemate in Delhi’s elect- ed government being a key plank. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com JusticesAKSikri (farright)and AshokBhushan weresplitonthe issueofwhoholds thepowertotrans- ferDelhigovern- ment’sbureaucrats andsaidthematter shouldbedecided byalargerbench.
  22. 22. Supreme Court/Appointment Imbroglio 24 February 25, 2019 N the latest controversy over appointments to the Supreme Court, Himachal Pradesh Chief Justice Surya Kant has landed in the middle of a judicial storm. Known to be a tough, fair and no- nonsense judge who handled some of the most critical cases in the Punjab and Haryana High Court where he was previously on the bench, he is now rum- oured to be under serious consideration for elevation to the apex court. If appointed, he will serve as India’s chief justice from November 2025 to Feb- ruary 2027. But he is facing headwinds, thanks to opposition from National Green Tribunal head Justice Adarsh Kumar Goel, who recently retired from the Supreme Court, and serial PIL litigant Prashant Bhushan. Justice Goel had also served on the Punjab and Haryana High Court. Even though he has nothing to do with appointments, detractors of Justice Kant, among them Bhushan, are using an earlier letter written by Justice Goel opposing Justice Kant’s move to head the Himachal High Court. In February 2018, when Justice Goel was part of the Supreme Court, he wrote a letter to Chief Justice Dipak Misra “respectfully” disagreeing with the Collegium’s decision to send Justice Justice Surya Kant faces headwinds Our legalteaminvestigatesthe truthbehindtheallegations designedtothwarttheentryof theHimachalchiefjustice intotheSupremeCourt I IndiaLegalhasobtainedinformationonsomeoftheallegationsagainst JusticeKant(above)referredtobyJusticeAKGoel.Ourinvestigative teamhaslearnedfromreliablesourcesthatthechargesandallegations beingaimedatJusticeKantwerethoroughlyinvestigatedbyvarious chiefjusticesandthefindingswereforwardedtothelawministryand thechiefjusticeofIndiabetween2013and2015.JusticeKantwasnot onlyfullyexoneratedandvindicatedbutalso,theallegationswerefound tobemischievousandfrivolous.
  23. 23. | INDIA LEGAL | February 25, 2019 25 Kant to Himachal. He cited “com- plaints” received against him in March 2017 and his recommendation to former Chief Justice JS Khehar to get “a thor- ough inquiry” conducted. The Collegium, however, went ahead with its decision. But now that Justice Kant is being considered for the Supreme Court, Justice Goel’s objections have re-surfaced and given ammunition to Justice Kant’s opponents. Advocate Bhushan has now written to Chief Justice Ranjan Gogoi seeking an inquiry against Justice Kant regarding allega- tions of illegal property transactions and abuse of authority. India Legal has obtained information on some of the allegations against Justice Kant referred to by Justice Goel. Our investigative team has learned from reliable sources that the charges and allegations being aimed at Justice Kant were thoroughly investigated by various chief justices and the findings were for- warded to the law ministry and the chief justice of India between 2013 and 2015. Justice Kant was not only fully exoner- ated and vindicated but also, the allega- tions were found to be mischievous and frivolous. This kind of gratuitous witch hunt- ing is an example of attempts to vilify and decimate the credibility of the judi- ciary, said a source familiar with the issue. Chief Justice Gogoi has rightly observed that the judiciary is losing its aura and majesty and that the younger lot in the Bar is not willing to become judges. A former judge said that there are many bright young lawyers who oth- erwise may be willing to place their case for consideration for judgeship but who may develop second thoughts fearing that their reputation may be deliberately maligned for ulterior purposes. “If that were to happen, it would surely be the death knell for an independent, impar- tial judiciary.” There is also an unmistakable irony here. Justice Kant’s detractors have their own crosses to bear. For example, Bhushan may well refer to what he sees as illegal property transactions. But, as they say, when you point a finger at so- mebody, you are simultaneously point- ing four fingers at yourself. Bhushan has often courted controversies in Himachal land deals. India Legal reported some of these cases in August 2016: He found himself entangled in a land scandal in Himachal when he was found to have secured property by filing a false affidavit to ensure that he got domicile status. Once he secured ownership, he sold the land only to purchase another property which was possible because he had domicile status. The case is current- ly being investigated by the state gov- ernment. In February 2010, the BJP govern- ment in Himachal Pradesh permitted the Kumud Bhushan Educational Society, headed by Prashant Bhushan, to buy tea-estate land at Kandwari near Palampur in Kangra district to set up an educational institution on condition that it would be built within two years of purchase of the land. The clearance was given when there was a total ban on the sale of tea gardens in the state to non- agriculturists. The Congress government ordered a probe into the sale in March 2013 when it came to power. This is what the investigations revealed: Permission was granted to purchase 122 kanal (15.25 acres) of tea-estate land to start an educational institute within Thereisanunmistakableironyhere. JusticeSuryaKant’sdetractorshave theirowncrossestobear.Forexample, advocatePrashantBhushan(left)may wellrefertowhatheseesasillegal propertytransactions.But,astheysay, whenyoupointafingeratsomebody,you aresimultaneouslypointingfourfingers atyourself.Bhushanhasoftencourted controversieshimselfinHimachalland deals.IndiaLegal reportedsomeofthese inAugust2016. Anil Shakya
  24. 24. 26 February 25, 2019 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com two years. However, no school or college came up. Instead, an insti- tute called “Shambhawana” was set up, which conducted occasion- al seminars and workshops. It was not affiliated to any university or board. DIG AP Singh, head of the vigilance bureau, wrote to the state government that there was a clear violation of rules and the property should be confiscated. The report said the educational institution required only 22 kanal (2.75 acres) of land, but the socie- ty purchased 122 kanal. Prashant’s father, Shanti Bhushan, bought a house in the tony Civil Lines area of Allahabad for a paltry advance and then paid the remaining amount many years later. The property had been grossly undervalued during the sale. As a result, stamp duty of `45,000 was paid for real estate worth about `20 crore. The Assistant of Stamp Duty in Allahabad, Dr KP Pandey, said Bhushan has been found guilty of evading stamp duty and the property and related taxes had been grossly undervalued. Shanti Bhushan and his three children were slapped a notice for alleged stamp duty evasion in 2011. A fine to the tune of `1.3 crore was slapped on Bhushan, his two sons, Jayant and Prashant, and daughter Shefali. Declaring themselves as agriculturists by submitting a project report on the farming they intended to do, Shanti Bhushan and son Jayant became owners of 10,000 sq m farmland plots in Noida. What was not mentioned was the manner in which the Mayawati govern- ment allotted 10,000 sq m land to Bhushan senior and another plot of the same dimension to Jayant. There was also a question of conflict of interest as Jayant appeared against Mayawati in the Noida Statue Park case. This land was allotted at a quarter of the prevail- ing market rate. And Justice Goel certainly must be aware of the public humiliation and ordeal he himself had to endure in 2001 when national newspapers ran a story that the Union law ministry overlooked questions raised by the Intelligence Bureau about his integrity when he was appointed to the Punjab and Haryana High Court. The reports allegedly also noted that Justice Goel was general sec- retary of the All-India Adhiwakta Parishad, the lawyers’ wing of the RSS. Based on the newspaper reports, an independent advocate, Ajay Bansal of Haryana, wrote a strong letter to the president of India and the CJI, calling Justice Goel’s appointment “shameful” and urging its cancel- lation. He also threatened to file a “quo-warranto writ petition in the Apex Court of India”. In the Punjab and Haryana High Court case, Court On Its Own Motion vs Ajay Bansal And Ors. on 11 February, 2004 Equivalent citations: 2004 CriLJ 2601, Justices BK Roy and N Sud began contempt proceedings against all the newspapers, their publishers and editors, as well as Bansal. The Court found them guilty of criminal contempt. The media was let off with stern warnings following unconditional apolo- gies, while Bansal was asked to pay a fine because he apologised for only his harsh language and not for the content. In their closing remarks, the judges observed: “But those who attack the judiciary must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things, it cannot engage itself in an open war nor indulge in releasing contradictions. The sword of justice is in the hands of the Goddess of Justice, not in the hands of mortal Judges. Therefore, Judges must receive the due protection of law from unfounded attacks on their character. “A writing, casting, imputation of impropriety, lack of integrity and oblique motives to a Judge constitute a contempt of Court for the reason that such imputation or impropriety, lack of integrity and oblique motives may in the ultimate shake public confidence in the Courts and administration of Justice and harm public interest.” JusticeAdarshGoel(above)certainly mustbeawareofthepublichumiliation andordealhehadtoendurein2001 whennationalnewspapersranastory thattheUnionlawministryoverlooked questionsraisedbytheIntelligence Bureauabouthisintegritywhenhewas appointedtothePunjabandHaryana HighCourt.Thepaperswhich reportedthisstorywereheld incontemptbytheHighCourt. Supreme Court/Appointment Imbroglio Anil Shakya
  25. 25. | INDIA LEGAL | February 25, 2019 27 Courts/ Muzaffarnagar Riots HE district court in Muza- ffarnagar recently awarded life imprisonment to seven Muslim youths for killing two brothers on August 27, 2013, in Kawal village even as the state government gave its nod for withdrawal of 38 cases against 100 individuals. Muzammil, Mujassim, Furkan, Nad- eem, Jahangir, Afzal and Iqbal were convicted by additional district and ses- sions judge Himanshu Bhatnagar, who found them guilty of killing brothers Sachin Singh and Gaurav Singh and also rioting. While five of them were accused of the murders, Afzal and Iqbal were summoned later when evidence of their complicity emerged during the trial. All the convicts were awarded two years’ imprisonment for rioting (Section 147, IPC), three years for rioting with deadly weapon (Section 148), five years for criminal intimidation (Section 506), life term for murder (Section 302), and slapped with a fine of over `2 lakh each. Nearly 80 percent of this amount will be given to the victims’ families. According to the FIR in the case, the two brothers were battered to death by five men after their two-wheeler collided with the vehicle of some locals. The twin murders allegedly caused large-scale co- mmunal violence in Muzaffarnagar and Shamli districts, which claimed 65 lives and rendered about 50,000 homeless. As per the prosecution counsel, over 6,000 cases were lodged in the two dis- tricts and 1,480 persons arrested. The sentencing of the seven accused comes at a time when the Yogi Aditya- nath government has, on January 10, recommended withdrawal of 38 crimi- nal cases against 100 individuals, all Hindus, who were charged for their role in the riots. Governor Ram Naik has also approved the government’s deci- sion, which was communicated to the district magistrate on January 29. The matter will now be placed before the district court. The decision to withdraw cases foll- ows BJP MP Sanjiv Balyan’s meeting with the CM last year. Balyan told a newspaper that the cases pertained to minor crimes and not rape or murder. He claimed that the Special Investiga- tion Team constituted by the govern- ment had “given a clean chit to rich and affluent people” while implicating the poor. “If they are Hindus, it’s not my fault. I’ll fight for them always and I am thankful to Chief Minister Yogi Aditya- nath,” Balyan reportedly said. Former CM Akhilesh Yadav had writ- ten to the Muzaffarnagar DM for his opinion on withdrawing the cases aga- inst the Muslims. The move was then dubbed as appeasement by the BJP. Bal- yan himself is facing charges for rioting, and the government is sitting over the SIT’s request for sanction to prosecute him. The government also doesn’t seem inclined to allow prosecution of politici- ans from other parties who were invol- ved in the riots. The BJP government initially mooted withdrawal of 113 criminal cases. The process was started last year when the Muzaffarnagar DM was asked to provide details of certain cases relating to mur- der, rioting, arson and promoting enmity between groups. But now that the BJP government has begun to let off some of the accused, it remains to be seen if Balyan will get a reprieve. Split Wide Open EvenastheUPgovernmenthasrecommendedwithdrawalof casesagainst100Hindus,adistrictcourthasawardedlife imprisonmenttosevenMuslimsforkillingtwobrothers By Atul Chandra in Lucknow Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com T MINDLESS VIOLENCE A victim of the Muzaffarnagar riots breaks down while others console her UNI
  26. 26. Courts/ Preventive Arrests 28 February 25, 2019 N an order aimed at giving accused persons some relief from police arrests, the Madras High Court has ruled that they need not be arrested in all criminal cases at the stage of investigation itself. The Court fur- ther added that the probe can be carried out effectively even without custodial interrogation. The issue cropped up in the court of Justice Anand Venkatesh during the hearing of the anticipatory bail petition of a person accused in a matrimonial dispute. The petitioner was accused of a second marriage while the first mar- riage was still valid as he had not taken a divorce. Black Friday Inamovetostemillegalarrests,theMadrasHighCourthassaidthattheyshouldnotbemadein criminalcasesattheinvestigationstageitselfandFridayarrestsshouldbechecked By R Ramasubramanian in Chennai I The judge told the prosecution that “the police should pull up their socks and show more quality and maturity in investigations. We are getting over- loaded with the filing of anticipatory bail petitions by various people appre- hending detention, especially against ‘Friday arrests’, a popular euphemism for arrests carried out on Fridays or a day prior to court holidays to ensure that the accused does not come out on bail immediately”. The judge added: “The police must be made to understand that all criminal cases need not necessarily involve arrest of accused persons during investigations and an effective investigation can be Amitava Sen done even otherwise. A change in atti- tude will bring down unnecessary filing of anticipatory bail petitions. A change in attitude if it could be effectively implemented at the investigation stage in matrimonial, commercial and proper- ty disputes and in other such minor offences will bring down filing of antici- patory bail petitions. Ultimately the aim was to stop unnecessary and illegal arrests.” The judge said that it was not neces- sary that the police should resort to the procedure under Section 41 A of the Code of Criminal Procedure (CrPC) when an anticipatory bail petition is filed. He said that the police could inde- pendently take a decision in accordance with the guidelines. Under Section 41 A of the CrPC, a police officer in all cases where the arrest of a person is not required, shall issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received to appear before him. Justice Venkatesh concluded: “Hen- ceforth in all anticipatory bail petitions filed before the Madras High Court and where the offence concerned carried a punishment of up to seven years, the police should instruct the public prose- cutor as to in which case they would invoke Section 41-A. The court would pass the necessary orders after record- ing the decision of the police with re- gard to 41-A.” Many lawyers in Tamil Nadu agreed with this judgment and said it was the need of the hour. “This is a welcome judgment. Friday arrests are a common thing in Tamil Nadu for the past few decades. Interestingly, over 50 percent
  27. 27. lower courts, but later acquitted by higher courts.” A part from matrimonial disputes, political activities of Opposition parties constitute the second biggest chunk of Friday arrests. “When- ever a political party plans a big protest on a sensitive issue, the government of the day unleashes Friday arrests, espe- cially if the protests are planned for the weekend or a Monday. This action was at its peak from 2008 till May 2009 when the Sri Lankan civil war was at its peak. The quantum of these arrests has come down in the past 10 years,” said P Srinivasan, an ex-member of the Maru- malarchi Dravida Munnetra Kazhagam led by former MP and votary of the Sri Lankan cause, Vaiko. But the police have a different take on this issue and says that this order will hamper the functioning of efficient offi- cers. “This order has been delivered with good intentions. The Court is of the view that innocents should not be har- assed at the hands of corrupt officers. But at the same time, one has to look at the ground reality. Even if station house | INDIA LEGAL | February 25, 2019 29 of these arrests are connected with mat- rimonial disputes and political activities of Opposition parties,” said Kasinatha Bharathi, an advocate in the Madras High Court. “Rampant misuse of the anti-dowry Act has been going on unabated in Tamil Nadu for the past several years. Though the Supreme Court had warned the police against misusing this Act, there was little imp- rovement at the ground level. I hope this judgment will help innocent people and put a brake on the gross misuse of laws by the police.” Echoing the same view, T Anna- malai, counsel for the petitioner in this case, told India Legal: “This is a great step in the right direction. In spite of the apex court’s repeated rulings and warnings against the misuse of the anti- dowry Act, it is going on unchecked in Tamil Nadu. The Supreme Court had cautioned the police that while register- ing FIRs against those who were acc- used, utmost care must be taken. “For example, in several FIRs, rela- tives of the accused, who lived hundreds of kilometres away from the com- plainant’s home, were also made an accused. This is glaring misuse of laws. The Supreme Court had also repeatedly said that you cannot punish a person on the basis of mere imagination. In cases of matrimonial disputes and dowry cases, there were incidents galore where innocents were punished by the officers call a person verbally for an inquiry on the basis of a complaint, he rushes to court for anticipatory bail. This affects the conciliatory efforts of local police officers in marriage dis- putes,” said M Karunanidhi, a retired superintendent of the Tamil Nadu police. He said conciliatory efforts actu- ally prevented suicides and murders in family disputes. He added: “While the Madras High Court order has been delivered with good intentions, it has the potential to affect the morale of honest police offi- cers because they cannot use the arrest weapon to get justice for innocent vic- tims. On the other hand, it will further embolden corrupt and inefficient police officers as they will take shelter under these orders which prevent Friday arrests. This will also be exploited by hardcore criminals. “The most affected will be innocent people who are cheated by those running chit funds. I have seen hun- dreds of cases where the mere warning of an arrest has worked wonders and those cheated are given their respective dues with interest in front of police officers.” That is perhaps a view that should be taken into consideration also. JusticeAnandVenkateshoftheMadras HighCourtsaidthatthepolicemust realisethatallcriminalcasesneednot necessarilyinvolvearrestoftheaccused personsduringinvestigations. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com T here is no single definition of arr- est under law, but the Supreme Court has defined it in Directorate of Enforcement vs Deepak Mahajan as: “The word ‘arrest’ when used in its ordi- nary and natural sense, means the apprehension or restraint or the depri- vation of one’s personal liberty. The question whether the person is under arrest or not, depends not on the legali- ty of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases.” Sections 41-60 of the CrPC lay down provisions regarding how a police officer or even an ordinary citizen can arrest another person. In non-cognis- able cases, the police cannot arrest a person without a warrant from a judicial magistrate. In cognisable cases, the police can arrest even without a war- rant, but needs to present the person before a magistrate within 24 hours. The SC further held in Joginder Kumar vs State of UP, 1994, that “no arrest can be made merely because it is lawful to do so. There must be a justi- fiable reason to arrest”. In DK Basu vs State of West Bengal, the Court laid down guidelines for arrest. One says that police officers carrying out the arrest must wear clear, visible and accurate identification with their desig- nation. The police officer should pre- pare a memorandum of arrest and have it attested it by at least one witness. The time, place and other particulars of arrest must be notified to a relative or a friend and the arrestee must be made aware of his rights. On request from the arrestee, he can be medically examined and injuries, if any, shall be noted. —By Naved Ahmad Whatisanarrest?
  28. 28. Legal Eye/ Bizarre Orders 30 February 25, 2019 N February 12, Chief Jus- tice of India Ranjan Gogoi passed an unprecedented order. He ordered former interim director of the CBI, M Nageswara Rao and the agency’s legal adviser, S Bhasuran, to sit “in the corner of the court room” for contempt of court till it rose for the day. They were also directed to pay `1 lakh each as fine within a week. Their offence was that they “wilfully” disobeyed orders of the Court not to transfer an investi- gating officer probing the Muzaffarpur shelter home abuse case. Rao and Bhasuran sat in the visitors’ gallery of Court No 1, avoiding eye con- tact with anyone, for the remainder of the day as atonement. Their apology was hardly convincing to the Court as they time to file their responses. They were Swan Telecom Private Limited’s promot- er, Shahid Balwa, director of Kusegaon Fruits and Vegetables Private Limited Rajeev Agarwal, and the three firms, Dynamic Realty, DB Realty Limited and Nihar Constructions Private Limited. Justice Waziri directed them to appear before the Deputy Conservator of Forests (DCF) on February 15 for plant- ing the trees in Delhi’s South Ridge for- est area. The DCF was asked to allot them the land for this exercise. The companies were to be represented through their authorised signatories. Justice Waziri also ordered the pri- vate secretary to former Union minister A Raja to plant 300 trees, allowing him to file his response in the case as a last opportunity. The Court stipulated that the plants should be indigenous, three and a half years of nursery age and six feet in height. The respondents were asked to submit photographic proof in the Court ensuring the plants’ good health. On October 9 last year, Justice Waziri noted in his order in CBI v A. Raja & Others: “It is stated on behalf of the respondents that the entire records have not yet been made available to them. Nevertheless, on the basis of the records available, some respondents have filed preliminary response. The TCR (Trial Court Records) have been digitized. Let a digitized copy of the entire case file along with the TCR be made available to the parties through their counsel within two weeks from today. Replies by the respondents may be filed within six weeks. Rejoinder, if any, be filed before the next date. List Innovative Crackdown Exasperatedbytheconductofaccused,judgesarepassingorders which,toordinaryminds,mayappearstrange By Venkatasubramanian O insisted in their affidavits that the officer concerned, AK Sharma, a joint secre- tary, was transferred because it was a promotion and that they assumed that they could get the Court’s consent for it retrospectively. Although the Court has the power to sentence a contemner to sit in the courtroom till it rises for the day, to ask someone to sit in a corner of the courtroom, as if to humiliate him, is unheard of. The Chief Justice of India’s uncon- ventional order was similar to others passed by judges elsewhere. 2G CASE On February 7, Justice Nazmi Waziri of the Delhi High Court ordered five respondents in the 2G appeal case to plant 3,000 trees each for seeking more UNPRECEDENTED VERDICT CJI Ranjan Gogoi (left) had recently ordered former interim director, CBI, M Nageswara Rao (right) and the agency’s legal adviser to sit in a corner of the courtroom till it rose for the day
  29. 29. respondents by all permissible modes, returnable on August 10, 2018, with a response (if any) to be filed within four weeks from the date of service, and rejoinder (if any) to be filed within two weeks thereafter. He also ordered a copy of the petition to be made available to the contesting respondents within a week in CD form. On August 10, the counsel for some respondents stated that they were not supplied with the records of the case in CD form. They were also aggrieved that they did not get the lower court records. “Let it be requisitioned, digitized and made available in two weeks,” Justice Waziri, who began to hear the case, had held. On August 10, only respondent No. 1 (A Raja) had filed his reply. The February 7 order may appear bizarre, but many would say it is justi- fied to uphold the majesty of the Court. The respondents had taken this for granted by their repeated pleas for more time for filing responses. This seemed as if they were keen to delay the hearing of the CBI’s appeals for no reason. GILLETTE INDIA CASE On February 28, 2017, seemingly exas- | INDIA LEGAL | February 25, 2019 31 for further proceedings on 07.02.2019.” The case history shows that the first hearing of the appeal was on March 21 last year when Justice SP Garg issued a notice to all the respondents by all per- missible modes, returnable on May 25, 2018. The response should be filed with- in four weeks from the date of service, and the rejoinder filed within two weeks thereafter, he had said. He had also di- rected requisitioning of the TCR along with the e-record. On May 25, the counsel appearing for the respondents sought more time. Justice Garg granted them six weeks with a rejoinder (if any) to be filed with- in two weeks thereafter. He also directed the issue of a notice to the unserved perated by the delays perpetrated by the case counsel in Gillette India Ltd. vs Reckitt Benckiser (India) Pvt. Ltd., Jus- tice Gautam Patel of the Bombay High Court posted the matter for further hearing on November 3, 2020. He also directed Gillette India to deposit `10 lakh to cover a potential order of costs for wasting the Court’s time. He held: “No application for priority hearing will be entertained; at least not until the Plaintiffs deposit in advance an amount of not less than `10 lakhs to cover a potential order of costs for this attempt to consume scarce judicial time in a bat- tle over advertisements of rival depila- tion products for women.” Justice Patel recorded the reason for his order. “There is not the slightest urgency, and this is evident from the delay thus far and the application for three weeks’ time for an affidavit in rejoinder. Parties are in the meantime free to advertise, counter-advertise and re-advertise their respective products with such statements as they believe are permissible or as their in-house legal thinks fit.” This activist mode of various courts shows that they want their orders to be taken seriously and if not, punishment will follow. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TOUGH STAND (Above) Justice Nazmi Waziri of the Delhi High Court ordered planting of trees in a case; Justice Gautam Patel of the Bombay High Court told Gillette India to pay `10 lakh delhipedia.com
  30. 30. 32 February 25, 2019 HE Indian Railways is one of the lifelines of our coun- try. Originally built by the British to provide fast con- nectivity for their army, it has now become one of the biggest organisations in the world, both in terms of the number of “customers”, and the size of its workforce. Unfortu- nately, like all government-controlled organisations in India, it has suffered from lack of resources, political med- dling, bad investment decisions and wrong priorities. The Railways today is over-stretched, uncomfortable, dirty and passenger-unfriendly. One can safe- ly assume that it is being used only when there is no other alternative. The decision to introduce a bullet train between Mumbai and Ahmedabad, therefore, has become controversial. Why spend tens of thousands of crores on a project that will not really serve the vast majority of its clients when the Railways is so starved of funds that it cannot even invest in de-bottlenecking its over-congested corridors? A project where the fares will be even higher than airline fares and be unaffordable for the vast majority of Indians? The answer is simple—this project is only happening has been paid to this aspect has been because of the very lax requirements of JICA. Thus, public hearings that would have normally been mandatory under the Environment Protection Act have not been held under the provisions of the EIA Notification of 2006, but as per a self-determined procedure arrived at by the National High Speed Rail Corpo- ration Ltd (NHRCL) and JICA. There is now widespread opposition to the project at the ground level. Far- mers, tribals and fisherfolk are protest- ing about the manner in which surveys are being carried out on their lands and how these are being acquired. In Mum- bai itself, the NHRCL was not able to Gone with the Wind? Inanattempttostormahead withthePM’sproject,forestand environmentalnormshavebeen giventhego-by,thereby threateningareasinnational parksandwildlifesanctuaries T ONE FOR INDIA PM Modi with his counterpart in Japan, Shinzo Abe, waiting to board the bullet train at Tokyo station; the project diverts hectares of forest land from the flamingo sanctuary because of the “generous” loan being off- ered by the Japanese International Coo- peration Agency (JICA), and the sup- port of the Japanese government. Un- fortunately, the JICA loan of `90,000 crore only covers the cost of railway hardware and technology. It is still not clear what technology will actually be transferred to the Indian Railways. However, what seems to have been completely overlooked is the uncalcu- lated costs of this project—the cost of land acquisition, displacement, loss of livelihoods and, of course, the environ- mental and ecological costs. It is incredible, but true—a project that will probably cost more than `2,00,000 crore has not gone through either an environmental or social impact assessment because the much-diluted laws of our country do not require rail- way projects to go through environmen- tal scrutiny. Whatever little attention My Space/ Bullet Train Project Debi Goenka UNI Debi Goenka
  31. 31. tion of the Mumbai-Ahmedabad High Speed Rail Project was considered as a separate agenda item, and also cleared at the same meeting. There was no men- tion of the impact of this project on the ESZs of either Sanjay Gandhi National Park or Tungareshwar WLS. A mazingly, all these decisions were taken without any docu- mentation being placed before either the MSWLB or the Standing Committee of the NWLB. Would it be fair to say that both these Boards were railroaded? To make matters more interesting, the NHRCL has filed a writ petition in the Bombay High Court challenging the decision of the Maharashtra Coastal Zone Management Authority (MCZMA) not to grant it permission to destroy 24.0253 hectares of mangroves contain- ing 53,467 trees. It has also offered to pay for reafforestation of five times the number of mangroves that will be des- troyed, i.e. it is willing to pay for planta- tion of 2,67,335 mangroves over an area of 67.5 hectares. Amazingly, NHRCL has not made the MoEF a respondent; nei- ther have the petitioners in the original mangrove petition—the Bombay En- vironmental Action Group and myself— been joined as parties. And even though this is a proposal for diversion of forest land, the Forest Department has not been joined as a party. Instead, the man- grove cell, that will be paid the money | INDIA LEGAL | February 25, 2019 33 get land for its Mumbai terminal. Incre- dibly, even the Mumbai Metropolitan Region Development Authority (MMRDA) was unwilling to give up a plot in the Bandra Kurla Complex (which also has been constructed in vio- lation of the Coastal Regulation Zone Notification) until Maharashtra CM Devendra Fadnavis intervened. This project was discussed by the Maharashtra State Wild Life Board (MSWLB) on December 5, 2018, and was chaired by the CM. At this meeting, the MSWLB agreed to set up a commit- tee to consider the mitigation measures for the bullet train project. This com- mittee would be chaired by Praveen Pardeshi, a senior IAS officer, and the right-hand man of the CM. The merits of the project were not considered—it was assumed that the project was to be cleared and that the mitigation meas- ures proposed would be adequate. More surprisingly, MSWLB decided that the decisions of this committee would be binding and ratified at its next meeting. The Standing Committee of the National Board for Wildlife considered this project at its meeting on January 10, 2019. The bullet train project was not on the agenda, but was taken up for discussion with the permission of the chair. Interestingly, the project was bro- ken up into two separate agenda items— one for the Flamingo Sanctuary and one for the Sanjay Gandhi National Park and the Tungareshwar Wildlife Sanctuary (WLS). Not surprisingly, the Standing Com- mittee chaired by Union Environment Minister Harsh Vardhan cleared the project at this meeting itself even tho- ugh the project diverts 3.2756 hectares of forest land from the Thane Creek Fla- mingo Wildlife Sanctuary, and 97.5189 hectares within the Eco Sensitive Zone (ESZ) around the Flamingo Sanctuary. In addition, the diversion of 32.75 ha of forest land and 77.30 ha of non-forest land from Sanjay Gandhi National Park and 0.6902 ha of forest land and 4.7567 ha of non-forest land from Tungaresh- war Wildlife Sanctuary for the construc- for reafforestation, has been made a respondent. Doubtlessly, even this will be app- roved by the authorities, even though no one has any idea where the 67.5 hectares will be found. All reafforestation efforts of the mangrove cell have been dismal failures. Despite RTI requests and sever- al personal appeals, this cell is not even willing to share the locations of its man- grove plantations. Two site visits made with junior officers of the cell revealed the dismal state of affairs at the so- called reafforestation sites. It is, therefore, quite clear that this project is not being examined in its totality, and is being appraised in a piecemeal manner. So far, the only gov- ernment agency in Maharashtra that has not rubber-stamped this project is the MCZMA, but it too could be forced into approving this part of the project. If this project is ever completed, the environment and the forests will be destroyed, and we will probably be left with an “asset” that will be so expensive that no one will likely use it. —The writer is executive trustee, Conservation Action Trust A PROJECT IN TROUBLE Farmers protesting against land acquisition for the high speed rail corridor in Maharashtra Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Youtube.com

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