India Legal - 26 August 2019

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
August26, 2019
ARoyalChallengeAquestionasked“justoutofcuriosity”bytheSupremeCourthasledtoseveralpeoplestaking
claimtoLordRam’slineage.Theseclaimshavebrieflyovershadowedthelanddisputecasein
whichthelegalargumentshaveraisedsomeotherintriguingquestions.
PlusBookExtract:Canreligionbeseparatedfrompolitics?
J&K: Winning global
support
Real Estate: Amendments
to Insolvency Act
BABRI MASJID-RAM JANMBHOOMI DISPUTE

he million-dollar top-of-the-mind que-
stion in India, even as businesses and
market analysts see no positive signs
heralding a turnaround in the scary
economic slowdown, is whether the
country is in any shape to achieve Prime Minister
Narendra Modi’s $5 trillion vision in five years.
It is a laudable target and there is nothing
wrong in dreaming big. But targets and timetables
must be based at least on a preponderant variation
of possibilities. In order to seek some answers, we
organised, last week, a private seminar to which
we invited iconic Professor Arun Kumar who occ-
upies the Malcolm Adiseshiah Chair at the Insti-
tute of Social Sciences in New Delhi. In the view
of this eminent economist, the Indian economy
may well be destined to reach that level but not in
five years.
Before making optimistic predictions and in-
dulging in feel-good hyperbole—vintage Narendra
Modi—his spin doctors need to understand where
India stands today and the steps that need to be
taken in order to achieve that goal.
But where we stand today may be difficult to
gauge in the currently vitiated atmosphere in
which the Right to Information is being curbed,
government-employed economic dissenters are
being shown the door and disinformation appears
to rule the commanding heights of the economy.
Do we, for example, have any reliable informa-
tion on the rate of growth? This is a primary indi-
cator without which projections and goals are sim-
ply an exercise in the blind leading the blind. But
controversies continue to swirl around this funda-
mental question as the government mounts a
fierce political challenge to those who insist that
the Indian economy, like Humpty Dumpty, has
tumbled off the wall and is on the path to a
great fall.
But that is not all. A national controversy rages
over the extent of actual unemployment and
underemployment accelerating rapidly across all
sectors of the economy. Rural distress is now being
augmented by continuing losses of jobs in the
manufacturing sectors, including the once-boom-
ing automobiles industry.
There is a surreal atmosphere of distrust as an-
alysts begin to suspect official data. In fact, Pro-
fessor Kumar says that the “assumption about the
unorganised sector data included in GDP calcula-
tions is no more valid. If that is included appropri-
ately, the rate of growth will be one percent”. Not
6.8 percent and a far cry from the optimistic
7.5 percent.
Is slowing growth a legacy issue? Did the gov-
ernment, as it has now been arguing, inherit a
deteriorating economy? Is the international envi-
GREAT EXPECTATIONS
Inderjit Badhwar
T
EminenteconomistProfessorArunKumarsaid
that“assumptionabouttheunorganisedsector
dataincludedinGDPcalculationsisnomorevalid.
Ifthatisincludedappropriately,thegrowthrate
willbeonepercent”.Not6.8percentandafarcry
from7.5percent.
Letter from the Editor
4 August 26, 2019
Anil Shakya

ronment causing the slump? Kumar argues that
the economy under previous regimes had gone up
to 8 percent growth several times. The decline
came only relatively recently. International factors
are important but, Kumar asks, “are they crucial?”
After all, India was never an export-driven eco-
nomy, thanks to pent-up internal demand which
revved up after the liberalisation in the 1990s. In
today’s economic circumstances, the RBI has cut
interest rates four times and stock markets have
been bullish most of the time, but investment has
simply not picked up.
Kumar makes the following observations which
every politician should heed:
Due to the slowdown, revenues were short by
`1.6 lakh crore. To keep the fiscal deficit at 3.4
percent, the government cut back expenditure.
But this only deepened the demand problem in
the economy. Then the government played with
the fiscal deficit figures to show a lower figure.
The CAG says it is more like 5.5 percent. If states’
deficits are taken into account, it may be 8-9 per-
cent. Hence, the capacity to raise expenditure is
limited unless fresh revenue resources are found.
The main factors behind the slowdown are gra-
tuitous shocks administered to the economy:
Demonetisation. The NBFC Crisis. Each of them
impacted the unorganised sector which employs
94 percent of the workforce. When the income
of such a large segment declines, the demand
goes down.
But now the slowdown is hitting the organised
sectors. It has been particularly harsh on automo-
biles, FMCG, cement and freight. Credit off-take
remains low. High NPAs have made the banks
wary of lending. When the demand is down,
capacity utilisation declines and investment is
postponed. Interest rate cuts in this situation do
not lead to higher investment. Note again: Stock
markets have touched record highs but not led to
higher investment.
Another million-dollar question: Can the rate of
growth be increased? Currently, the official rate of
growth is 5.8 percent and slowing, WPI inflation
is at about 3 percent. The nominal growth rate
envisioned in the budget is nowhere close to the 12
percent assumed in the budget.
So, revenue of the government will again be
short. To keep the fiscal deficit at 3.3 percent,
expenditure will likely be cut, and non-tax revenue
may be increased via disinvestment and land mon-
etisation. But this will still be inadequate. It
is a transfer only, and does not lead to increased
investment.
What should be the rate to get to $5 trillion?
The government is assuming a 12 percent nominal
growth in its budget—this is unlikely. It is plan-
ning `100 lakh crore of investment in five years.
Again highly unlikely. Due to differential inflation
between the US and India, the rupee may decline
by 15 percent, taking the dollar to `80 from `70.
In 2018-19, the economy was at `190 lakh crore.
By 2023-24 end, we will need to be at `400 lakh
crore. So, India will need 16 percent growth to
achieve the $5 trillion mark.
Given the international uncertainties facing
India, looming trade wars, crises in oil producing
countries... Modi has a tough row to hoe.
IN DOLDRUMS
The economic
slowdown has been
harsh on the
automobile sector,
among others; there
was no focus on the
economy in PM
Modi's Independence
Day speech this year
| INDIA LEGAL | August 26, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
PIB

In his soon to be published book, Babri Masjid–Ram Mandir Dilemma: An Acid Test for India’s
Constitution, Madhav Godbole, former Union home secretary and secretary, justice, provides rare
insights into the events surrounding the demolition of the Babri Masjid
ContentsVOLUME XII ISSUE41
AUGUST26,2019
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LEAD
12Royal Challenge
A question asked “just out of curiosity” by the Supreme Court has led to several people staking claim
to Lord Ram’s lineage. These claims have briefly overshadowed the land dispute case in which the
legal arguments have raised some other intriguing questions
Don’t Mix Religion and Politics
6 August 26, 2019
16Claims Aplenty
In response to the apex court’s query, the Jaipur and Udaipur royal families said they belonged to
Lord Ram’s dynasty and there was ample evidence to prove it. What is this evidence?
18
SUPREMECOURT
22Key Stakeholders
In a welcome move, the apex court has upheld the law elevating the
status of allottees of real estate projects to creditors in order to
ensure greater accountability of the promoters

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PUBLISHERS PVT LTD,
Ringside............................8
Courts.............................10
Is that Legal....................11
Media Watch ..................37
Satire ..............................50
Cardinal Sins
Financial frauds and amorous
adventures of its leaders have left the
church in Kerala a divided house, and
its moral authority weakened
47
Legal luminary Shamnad Basheer, who died on August 8, was an
inspiring and gifted teacher and his well-written petitions made a
difference to the lives of ordinary citizens, writes Prof Upendra Baxi
A Void Difficult to Fill
Heinous Conspiracy
The J&K government and the victim’s family have challenged the
judgment of the trial court before the Punjab & Haryana HC and
sought greater punishment for the accused in the Kathua case
CRIME
Bridge over Troubled Waters?
The Inter-State River Water Disputes Amendment Bill, 2019, has not evoked much
confidence over the central tribunal it seeks to establish with different benches
40
28
GLOBALTRENDS
Checkmate
Prime Minister Modi’s muscular
politics in abrogating Article 370
has ensured that Kashmir remains
an internal matter despite Pakistan
and China trying to rake it up in
many forums
34
The Draft Model Tenancy Act is aimed at promoting the growth of
rental housing and thus addresses the huge shortage of housing
and takes some load off the overburdened litigation process
Home Run 25
STATES
Firm Stand
The Madhya Pradesh government is refusing Gujarat’s plea to release more water to test
the strength of the Sardar Sarovar Dam unless displaced people are rehabilitated
44
COLUMN
A Right for Every Human
A recent talk held in Chennai on human rights dwelled upon the need
for states to become more responsible to ensure basic freedoms
FOCUS
33
30
Not so
Noble
The prime minister’s Ayushman
Bharat Scheme is riddled with
dishonest practices by hospitals
and common service centres,
leading to their de-empanelment
and FIRs being lodged
38

8 August 26, 2019
““Its outcome is not to
the liking of many peo-
ple of our country. It is
important that the
voice of all these people
be heard. It is only by
raising our voice that
we can ensure that in
the long run, the idea of
India...will prevail.”
—Former PM Manmo-
han Singh, while refer-
ring to the centre scrap-
ping Article 370
“Dear Maalik ji, I saw
your feeble reply to my
tweet. I accept your
invitation to visit
Jammu & Kashmir and
meet the people, with
no conditions attached.
When can I come?”
—Rahul Gandhi in a
tweet to the J&K gover-
nor after the latter with-
drew his invite, citing
too many preconditions
“Like a parasitic creeper, we will hang on to one family
and do our politics. But that family has lost its charisma.
The public has rejected them. It would be better for them
to opt for a new leadership.”
—Senior BJP leader Shivraj Singh Chouhan on Sonia Gandhi
becoming the interim president of the Congress
“When your parents start to get calls and your daughter
gets online threats you know that no one wants to talk.
There isn’t going to be reason or rationale.... This would be
my last tweet as I leave Twitter. When I won’t be allowed to
speak my mind without fear, I would rather not speak....”
—Filmmaker Anurag Kashyap, quitting Twitter
“NASA has said in near
future if computers
have to speak, then they
can only do so on the
strength of Sanskrit,
else computers will
crash because Sanskrit
is a scientific language.”
—Union HRD minister
Ramesh Pokhriyal
‘Nishank’ at a function
in IIT Bombay
“Our Minister OP
Dhankar used to say
that he will have to
bring daughters-in-law
from Bihar. People
nowadays have started
saying the route to
Kashmir is cleared and
now we will bring girls
from Kashmir.”
—Haryana CM ML Kha-
ttar on the success of the
Beti Bachao-Beti Padhao
campaign in the state, in
Fatehabad, Haryana
“Why is that whenever there are no politi-
cal overtones to the case, the CBI does a
good job...in a number of high-profile and
politically sensitive cases the agency has
not been able to meet the standards of judi-
cial scrutiny. Equally true is...such lapses
may not have happened infrequently....”
—Chief Justice of India Ranjan Gogoi at a lecture
organised by the CBI in Delhi
Afilash T Issac
RINGSIDE

Courts
10 August 26, 2019
—Compiled by India Legal Team
The Supreme Court refused to interfere
with the restrictions placed by the cen-
tral government in J&K and adjourned the
matter for two weeks. The Court said it
was of the opinion that the government
should be given some time to restore nor-
malcy in the state. “Every pros and cons
has to be considered in a matter like this.
Who will be responsible if something really
bad happens tomorrow? The government
would also want normalcy as soon as pos-
sible,” the Court said while hearing a peti-
tion filed by activist Tehseen Poonawalla.
The petitioner had questioned the “regres-
sive measures” adopted by the centre in
J&K before the abrogation of Article 370
through a Presidential Order on August 5,
and sought lifting of prohibitory orders,
release of political leaders and restoration
of communication services. Attorney
General KK Venugopal told the Court that
the situation was being monitored on a
daily basis and the centre was hopeful of
lifting the curbs in a few days subject to
the “ground situation”.
No re-verification
of NRC, says SC
SC refuses to interfere on J&K curbs
Abench led by CJI Ranjan Gogoi
rejected a plea to reopen the
exercise to update the National
Register of Citizens (NRC) for
Assam. The plea contended that
those born in India after March 24,
1971, and before July 1, 1987,
were not being included in the NRC
unless they had ancestral links to
India. Refusing to grant relief, the
bench referred to Rule 4A of the
Citizenship (Registration of Citizens
and Issue of National Identity
Cards) Rules, 2003, which fixes the
outer cut-off date as the midnight
of March 24, 1971. The bench also
said that to secure the NRC data,
an appropriate regime should be
enacted on the lines of the security
regime for the Aadhaar data.
Even as Punjab wit-
nessed protests over the
alleged demolition of a tem-
ple in Delhi, the Supreme
Court stood firm on its
decision and said its orders
were not influenced by poli-
tics and political considera-
tions. The Court also
threatened to initiate con-
tempt proceedings against
those provoking dharnas
and demonstrations. The
controversy relates to the
centuries-old Guru Ravidas
temple in Tughlaqabad for-
est area. On August 10, it
had been demolished by
the Delhi Development
Authority (DDA) as part of
a drive to carry out the
Supreme Court’s orders.
On August 9, the apex
court had ordered vacation
of the forest area illegally
occupied by the Guru
Ravidas Jainti Samaroh
Samiti and removal of all
encroachments in the next
24 hours.
SC stands firm
on Ravidas
temple issue
Senior advocate and for-
mer Additional Solicitor
General (ASG) Amarendra
Sharan passed away on
August 12 after suffering a
heart attack. He was 69 and
is survived by wife Madhu
Sharan, also an advocate,
and two daughters and a
son. Sharan was the ASG
during the UPA-I regime
from 2004 to 2009. He had
also served as a special
counsel for the CBI in the
coal block allocation scam
cases before the apex
court. After doing his LLB
from Patna University, Sha-
ran enrolled as a lawyer in
1975 and started practice in
the Patna High Court. Later,
he shifted to Delhi and. in
the year 2000, he was des-
ignated a senior advocate.
Former ASG Amarendra Sharan no more
Justice Lokur sworn
in as Fiji judge
Justice Madan B Lokur, who
retired from the Supreme Court
in December last year, was appoint-
ed a judge of the Supreme Court of
Fiji on August 12. Justice Lokur
was sworn in by the President of
Fiji, Maj Gen (Retd) Jioji Konrote, in
the presence of the Chief Justice of
the Supreme Court of Fiji, Kamal
Kumar, and others. This is the first
time that an Indian has been appo-
inted to the Supreme Court of ano-
ther country. Justice Lokur, who
took oath on the Bhagvad Gita,
would be going to Fiji twice a year
to handle civil, criminal, constitu-
tional, commercial matters, etc.

ISTHAT
Is anticipatory bail applicable in
Uttar Pradesh?
The provision of pre-arrest or antici-
patory bail is back in Uttar Pradesh
after more than 40 years and came
into effect from June 6 this year. It
was scrapped during the Emergency.
Earlier, the Code of Criminal Proce-
dure (Uttar Pradesh Amendment) Bill,
2018, bringing back the provision
was approved by the state assembly
and ratified by the president. Section
438, CrPC, lays down the conditions
under which such bail can be grant-
ed. Anticipatory bail is generally
allowed for a person who is appre-
hending arrest on a non-bailable
offence either by a Sessions court or
a High Court. The Allahabad High
Court and the Supreme Court were
insisting the state government bring
the law back. Several writ petitions
seeking restoration of the bail provi-
sion were also filed in various courts.
The State Law Commission also
wanted anticipatory bail to be brought
back in Uttar Pradesh.
— Compiled by India Legal team
Pre-arrest Bail
Back in UP
Is there a time limit for courts to
take cognisance of an offence?
There is a time limit within
which a court must take cogni-
sance of an offence. The time
period is mandated by the Law
of Limitation. An aggrieved per-
son must approach the court for
redressal or justice within this
period. Any suit filed after the
expiry of the time limit is struck
down by this law. According to
Section 468, CrPC, 1973, the
period of limitation shall be:
(a) Six months, if the offence is
punishable with fine only;
(b) one year, if the offence is
punishable with imprisonment
for a term not exceeding
one year;
(c) three years, if the offence is
punishable with imprisonment
for a term exceeding one year
but not exceeding three years.
Law of Limitation
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What are the legal remedies available to a victim
of domestic violence other than approaching the
nearest magistrate’s court?
According to the Protection of Women from Do-
mestic Violence Act, 2005, a victim of domestic
violence can approach the Protection Officer
appointed under the statute.
Protection Officers are nominated by the state
government and have the power to ensure shel-
ter, medical assistance and help for filing a com-
plaint with the magistrate. These officers also
educate the aggrieved person on all rights avail-
able under the Act. They are also responsible for
preparing the domestic violence report on
behalf of the aggrieved woman and submitting it
to the magistrate.
What is a habeas corpus writ petition?
Habeas corpus is a Latin term which literally
means, “you may have the body”. The writ is used
by courts to order the physical presence of a per-
son to find out if he has been illegally detained,
thus violating his fundamental rights.
Articles 32 and 226 empower the Supreme
Court and High Courts, respectively, to exercise
such powers under habeas corpus to protect fun-
damental rights and ensure release. The protection
of life and personal liberty is a fundamental right
under Article 21 of the Constitution which is violat-
ed in case a person is illegally confined.
Protecting
Fundamental Rights
Role of Protection
Officers

Lead/ Supreme Court/ Legal Arguments
12 August 26, 2019
ORD Ram and his lineage are
at the centrestage of the Ayo-
dhya case hearing. A question
asked “just out of curiosity” by
the Supreme Court has led to
several people staking claim
to being his descendants. Interestingly,
none of those claiming to be the living
scion of Ikshwaku, Lord Ram’s Sun
dynasty, happens to be in Ayodhya.
“We are just wondering if anyone
from the Raghuvansha dynasty is still
living there (at Ayodhya),” asked Chief
Justice of India Ranjan Gogoi, heading
the five-judge constitution bench hear-
ing the Babri Masjid-Ram Janmabho-
omi title dispute case. The other judges
on the bench are Justices SA Bobde,
DY Chandrachud, Ashok Bhushan and
SA Nazeer.
The question was put to senior advo-
cate K Parasaran, representing Ram
Lalla Virajman, who argued that the
presiding deity and the birthplace were
both “juristic” entities and hence capa-
ble of holding properties and instituting
lawsuits. “I have no information. We will
try to find it out,” Parasaran replied to
the bench as arguments in the case
moved towards the presiding deity’s
Confusion
Confounded
TheconstitutionbenchhearingtheBabriMasjid-RamJanmabhoomititle
disputecasefacessomedifficultchallenges
By Atul Chandra in Lucknow
L

According to one report, the Jaipur
royal has a file with the names of all
those belonging to Lord Ram’s lineage.
She also said that she wanted a Ram
temple to be built in Ayodhya and was
ready to submit the documents pertain-
ing to her ancestry, if required, to hasten
the process. If Diya Kumari is to be
believed, there are many other families
which trace their lineage to Lord Ram.
Her assertion was followed by the
royals of Mewar also claiming to be
descendants of Lord Ram. Lakshyaraj
Singh of the royal family of Mewar
claimed that they were descendants of
Lord Ram’s elder son, Luv. It is said that
Luv had established Luvkote, present-
day Lahore, in ancient times. According
to Lakshyaraj Singh, Luv’s descendants
moved to Ahad (Mewar) and established
the Sisodia dynasty. Like Lord Ram, the
Sisodias were Suryavanshis and wor-
shippers of Lord Shiva.
The earliest history of the Sisodia
clan claims that they moved from
Lahore to Shiv Desh (Chitor) in AD 134.
Lakshyaraj also quoted British historian
James Tod, who in his book, Annals and
Antiquities of Rajasthan, wrote about
the Kachhwaha clan and Lavites, the
descendants of Luv, who established
Luvkote (Lahore). Under the heading
“Kachhwaha”, Tod wrote: “The
Kachhwaha race is descended from
Kush, the second son of Rama. They are
the Kushites as the Rajputs of Mewar
are the Lavites of India. Two branches
migrated from Kosala: one founded
Rohtas on the Son river, the other estab-
lished a colony amidst the ravines of the
Kuwari, at Lahar.” In Chapter 5, Book 2,
History of the Rajput Tribes, Tod names
tribes which claim to have descended
from Suryavansh: “The Suryavansa or
Solar Line—From Rama all the tribes
termed Surj’avansa, or Race of the Sun,
claim descent, as the present princes of
Mewar, Jaipur, Marwar, Bikaner and
their numerous clans.…” In a more
direct reference, he says: “First the
descendants of Kusa, second son of
Rama, from whence the princes of
Narwar and Amber.…”
right to be treated as a person and his
right to property.
The poser on Ram’s descendants was
made on the fourth day of the hearing.
Replying to a query from the bench as
to how the janmasthan (birthplace of
Ram) can be regarded as a “juristic per-
son” having stakes as a litigant in the
case, Parasaran said: “The idol is not
necessary in Hinduism for a place to be
regarded as a temple. Hindus do not
worship gods in any definite form,
rather they worship them as divine in-
carnation having no form.” Parasaran
cited the example of the Kedarnath
temple which has no idol of any deity.
Therefore, he said, “there is no need of
an idol for terming a place as a temple,
having the character of a ‘juristic’ per-
son, capable to own properties and
institute lawsuits”.
Extending these arguments further
to the Ayodhya land in contention, the
counsel for Ram Lalla Virajman, senior
advocate CS Vaidyanathan, said that the
Allahabad High Court “had mixed up
facts” in its three-way distribution of
land because “the whole premises were
held to be a deity”. In its September 30,
2010, judgment, a three-judge bench of
the Allahabad High Court had divided
the land amongst the three litigants.
While one of the judges, Justice Sudhir
Agarwal, ruled that only the central
dome was the janmasthan, Justice
Dharam Veer declared the entire area
the birthplace.
V
aidyanathan said: “The High
Court mixed up the three con-
cepts. It says place is deity and
deity is owner of place. And then it says
they (Hindus and Muslims) have joint
possession. In my view, the HC is not
right in mixing up the facts.
“The High Court says the premises,
which is the place of birth of Lord Ram,
vests in the deity. But the place itself is
the deity….When the place itself is the
deity, there cannot be joint possession
or title.”
At this point, Justice Chandrachud
asked: “That postulates that your world-
view is universal….Here we have two
beliefs. One says that the place repre-
sents God personified, the other says it’s
only a place of worship. How do you
balance both?”
“The High Court accepts the place as
the deity. If that is so, there can’t be
joint possession,” Vaidyanathan replied,
adding that if “the place is the deity, it
can’t be divided or mutilated. It will
continue to remain the deity despite
the fact that a mosque was built on it”.
He based his argument on the order
passed by Justice Dharam Veer of the
Allahabad High Court.
Soon after, three of Lord Ram’s
dynasts emerged, not in Ayodhya, but in
Rajasthan which is known for its war-
rior Kshatriya Rajputs. The first to claim
descent was Princess Diya Kumari of
Jaipur, a BJP MP from Rajsamand. She
said that her family had descended from
Lord Ram’s son, Kush, and that she had
enough evidence to prove her claim.
“Wearejustwonderingifanyonefrom
theRaghuvansha dynastyisstillliving
there,”askedCJIRanjanGogoi,heading
thefive-judgeconstitutionbench
hearingthecase.

14 August 26, 2019
The Rajputs of Mewar, known as the
Ranas, worship Eklingnath, just as Lord
Ram worshipped Shiva. Also, the Sun is
Mewar’s royal emblem. Lakshyaraj’s
uncle was also reported to have said that
“the history of 76 generations is listed
with the family” and that the “former
royal family of Jaipur gave the genealo-
gy to the court 25 years back”. Two local
historians—Professor Chandrashekhar
Sharma and Dr Ajatshatru Singh—are
reported to have substantiated the claim
of Lakshyaraj and his uncle. Affirming
their claim, Prof Sharma reportedly
said: “Genealogy of the Mewar royals
being Suryavanshi exist.”
A
Pakistani travel website
(https://www.travel-
culture.com/pakistan/lahore-his-
tory.html) also mentions Lahore’s myth-
ological links. “According to a legend,
Lahore was known in ancient times as
Lavapuri (City of Lava in Sanskrit) and
was founded by Prince Lava or Loh, the
son of Rama, the Hindu deity. To this
day, Lahore has a vacant temple dedicat-
ed to Lava (also pronounced Loh hence
Loh-awar or the fort of Loh),” the web-
site post reads.
In a Facebook post, Rajasthan
Congress leader Satyendra Singh
Raghav dismissed Diya Kumari’s claim
and said that Raghav Rajputs were the
real descendants of Lord Ram. Raghav,
who belongs to the Bargurjar Rajput
clan of Alwar, claimed he too has docu-
ments to prove his claim. Jayaas and
Sikarwar Rajput clans are also believed
to have descended from Luv. According
to Valmiki’s Ramayana, the post said,
Kush and Luv were made kings of
Dakshin (south) and Uttar (north)
Kaushal, respectively.
Raghav said that according to poet
Kalidas: “Ram ordained Luv as the ruler
of Sharavati and Kush as ruler of
Kushavati.” While Sharavati is modern-
day Shravasti in Uttar Pradesh, Dakshin
Kaushal, of which Kushavati was the
capital, is in present-day Chhattisgarh.
Raghavs, counted among Rajasthan’s
36 royal races, are said to have descend-
ed from Luv, Lord Ram’s elder son.
Bhairon Singh Shekhawat, the former
vice-president, belonged to this clan.
These claims have briefly overshad-
owed the Babri Masjid-Ram Janma-
bhoomi case. However, as the constitu-
tion bench specifically asked about a
“living descendant in Ayodhya”, these
claims may not be given any considera-
tion by the apex court judges as it could
be akin to opening a Pandora’s Box.
As for the present raja of Ayodhya,
Bimlendra Pratap Mohan Misra, being
a Brahmin does not make him a descen-
dant of Ram. A resident of Ayodhya said
that as far as he knew, there was no liv-
ing being in Ayodhya who belonged to
Lord Ram’s lineage. On the contrary,
the race to establish ties with a mytho-
logical past has reduced Lord Ram,
God incarnate, to the level of humans,
he said.
Responding to the Facebook post by
Raghav, one Sangram Singh Shekhawat
responded: “The issue is not about the
real descendant of Lord Ram but about
any of his dynasts being alive today in
Ayodhya. So instead of arguing over it,
the royal families who say they are in
possession of records and the advocate
should approach the court.” This, the
post said, would help settle the Ayodhya
dispute faster.
Lead/ Supreme Court/ Legal Arguments
SenioradvocateKParasarancitedthe
exampleoftheKedarnathtemple(left)to
supporthisargumentthatinHinduisman
idolisnotnecessaryforaplacetobe
regardedasatemple.Rajeev Tyagi

Lead/ Jaipur-Udaipur Royals’ Claims
16 August 26, 2019
EING born and brought
up in Jaipur, one can see
ample symbols which
depict that the Jaipur royal
family belonged to the
Suryavanshi (Sun dynasty)
lineage. The most prominent among
them are Sun God heritage pillars erect-
ed on the road divider of Johari Bazaar.
There are other places such as Tripolia
Gate and the main gate of Rambagh
Palace Hotel where this symbol is
prominently displayed. So it does not
come as a surprise when Diya Kumari,
BJP MP from Rajsamand, and a mem-
ber of the Jaipur royal family, claimed
that they were descendants of Lord
Ram’s son, Kush. Most Rajputs belong
to three basic lineages—Suryavanshi,
Chandravanshi and Agnivanshi. Lord
Ram belonged to the Raghuvanshi kula
/Raghav (one of the main branches of
the Suryavansha dynasty).
Ramu Ramdev, officer on special
duty at the City Palace, told India Legal
that just like Lord Ram had two sons—
Luv and Kush—Laxman and other
brothers of Lord Ram too would have
had children. But when the Supreme
Court raised the issue of descendants of
Raghuvansha (Lord Ram), then only the
Jaipur royal family decided to speak up.
A five-judge constitution bench
headed by Chief Justice Ranjan Gogoi
had asked the question during the
Ayodhya hearing to Senior Advocate K
Parasaran, who was appearing for Ram
Lalla Virajman, one of the parties in the
case. Parasaran then argued that the
deity and the birthplace both were
“juristic” entities and hence, capable of
holding properties and instituting law-
suits. “We are just wondering if anyone
from the Raghuvansha dynasty is still
living there (at Ayodhya),” the bench
said. “I have no information. We will try
to find it out,” Parasaran had responded.
Ramu Ramdev said: “This is akin to
WhentheSupremeCourtraisedtheissueofdescendantsofLord
Ram,theJaipurandUdaipurroyalfamiliessaidtheybelongedtohis
dynastyandtherewasampleevidencetoproveit
By Asif Ullah Khan in Jaipur
GODLY CONNECTION
Princess Diya Kumari (second from right) of
the Jaipur royal family; (above) Mahendra
Singh of the Mewar-Udaipur royal family. Both
have claimed to be descendants of Lord Ram
B
The Royal
Challenge
facebook.com

Gayatri Devi, the third wife of Sawai
Man Singh, contested the Lok Sabha
election of 1962 as an independent and
won by a record margin, securing
1,92,909 votes out of the 2,46,516 cast.
Later, she joined the Swatantra Party
founded by C Rajagopalachari and held
the seat in 1967 and 1971. Her differenc-
es with Indira Gandhi were well-known
and she was arrested during the Emer-
gency for alleged tax violation.
The only time a member of the Jai-
pur royal family contested on a Congress
ticket was in 1989 when Brig Bhawani
Singh, Diya Kumari’s father, contested
the Lok Sabha polls from Jaipur. Ironic-
ally, at that time the BJP was leading
the Ram Janmabhoomi movement and
Bhawani Singh lost to BJP’s Girdhari
Lal Bhargava by a huge margin.
Diya Kumari, unlike her father, join-
ed the BJP on September 10, 2013,
before a crowd of two lakh people in the
presence of then Gujarat CM Narendra
Modi, BJP President Rajnath Singh, and
Vasundhara Raje. The same year, she
was elected to the Rajasthan assembly
from the Sawai Madhopur seat. In the
2018 assembly polls, she was denied a
ticket from this seat but was later elect-
ed to the Lok Sabha from Rajsamand.
However, the biggest irony of this
debate over the descendants of Lord
Ram is that Kasur and Lahore, which
were founded by Kush and Luv, are in
present-day Pakistan. The famous
melody queen of the sub-continent,
Noor Jehan, also hailed from Kasur.
According to film historian Karan Bali,
after Partition, Noor Jehan opted for
Pakistan, not for communal reasons, but
because she wanted to be close to her
birthplace, Kasur.
Blood is obviously thicker than
water.
saying that your father had no children
and no one from your family is left.
Then you will be forced to speak out.
Here the question is about Lord Ram.
So Diya Kumari had to speak up.” He
said the Kushwaha or the Kachhawa
clan is named after Kush, the older son
of Lord Ram, and the Jaipur royal fami-
ly belongs to this clan. According to the
lineage of this clan, King Dashrath was
the 62nd descendant; Lord Ram the
63rd; Kush the 64th, and Late Brig
Bhawani Singh, who was the father of
Diya Kumari, the 307th descendant.
Ramdev said that other historical
evidence which proves that members of
the Jaipur royal family were descen-
dants of Lord Ram can be found in the
works of historian Prof R Nath. Two of
his books—The Jaisinghpura of Sawai
Raja Jai Singh at Ayodhya and Studies
in the Middle Indian Architecture—
show that Jaisinghpura and the temple
at Ram’s birthplace were under the
authority of Sawai Jai Singh II and it
was he who built the Ram Temple. Nine
documents and two maps of Jai Singh
are preserved in the Kapad–Dwar col-
lection in the City Palace Museum of
Jaipur. Prof Nath, who has examined
these records, concluded that Jai Singh
had acquired the land of Ram Janma-
sthan in 1717. The ownership of the land
was vested in the deity.
Ramdev said that in 1776, Asaf-ud-
Daula, the nawab wazir of Oudh, had
ordered Raja Bhawani Singh to ensure
that there should be no interference in
Jaisinghpura, which existed between
Ayodhya and Allahabad. After the death
of Aurangzeb, Sawai Jai Singh bought
huge swathes of land between 1717 to
1725 and carried out major development
works. These include the nine-storey
palace, Kot Ram, a place for Lord Ram’s
khadau (wooden sandals) and Sita’s
angnikund (hearth).
When told that some of the members
of the erstwhile Jaipur royal family were
adopted from other royal families like
Diya Kumari’s grandfather, Raja Man
Singh, Ramu Ramdev said: “First of all,
they were adopted from families which
had the same blood and secondly, after
adoption under Hindu law, they become
part of the family which adopted them.”
Meanwhile, Mahendra Singh, a
member of the Mewar–Udaipur royal
family, too, has claimed to be a descen-
dant of Lord Ram. Ramdev said: “Yes,
like the Jaipur royal family, they are also
Suryavanshis. The only difference is that
Mewar’s Sun God has a moustache.”
I
n Jaipur, meanwhile, Diya Kumari
and her mother, Padmini Devi, add-
ressed a press conference where
they made it clear that their claim to be
the descendants of Lord Ram should in
no way be construed as an attempt to
interfere in the proceedings of the apex
court. Diya Kumari said she was ready
to provide documents if the need arose.
“I do not want to interfere in the pro-
ceedings of the court but if they demand
these documents from us, we will defi-
nitely provide all of them. There are
many of his descendants, and the whole
of India should be proud of it,” she said.
Incidentally, the Jaipur royal family
never had cordial ties with the Congress.
UNI
POLITICAL CLOUT
Princess Diya Kumari is a BJP MP from
Rajsamand; she joined the party in 2013

Separate Religion
from Politics
18 August 26, 2019
Lead/ Book Extract/ Babri Masjid–Ram Mandir Dilemma: An Acid Test for India’s Constitution

ing it? And, for that matter, is the
Muslim or Sikh religion under any
threat? This question needs to be asked
and answered in respect of each religion
in the country.
Though not happily worded, the
Liberhan Commission has rightly rec-
ommended:
“A government which is formed on
the premise of religion (sic) or which
has religious issues on its political agen-
da must also be barred. A government
which is formed by professing its sup-
port to a particular religion or which
has a religious issue or purpose as its
have a serious problem with the
inter-mixing of religion with poli-
tics, whether it is the majority reli-
gion or the minority religions. The
Chief Minister of Uttar Pradesh
Yogi Adityanath has proudly declared:
“Current politics and religion are inter-
twined…” (India Today, January 28,
2019, p. 56). In particular, I am unable
to understand why Hindus, who are in
an overwhelming majority in the coun-
try, feel the need to form separate org-
anisations and political parties to pro-
tect their religion. Is the Hindu religion
under threat in India? Who is threaten-
In Babri Masjid–Ram Mandir Dilemma: An Acid Test for
India’s Constitution, Madhav Godbole, former Union Home
Secretary and Secretary, Justice, provides rare insights
through his comprehensive and detached analysis. The author,
who was closely associated with the events when the Babri
Masjid was demolished, throws light on how all major consti-
tutional bodies failed in discharging their responsibilities. He
further asserts that India cannot be at peace till an amicable
solution is found to the Ramjanmabhoomi–Babri Masjid dis-
pute. He suggests a solution based on equal respect for the
sentiments of the two communities. Excerpts from the book:
I
FESTERING WOUND
The Babri Masjid site with
Ram Janmasthan and Sita
ki Rasoi; (right) author
Madhav Godbole
Photo Source: Konark Publishers Pvt Ltd,

ed, the Constituent Assembly (Legis-
lative) had passed a resolution moved by
Madabhushi Ananthasayanam Ayyangar
on April 3, 1948, to separate religion
from politics. It was passed almost un-
animously, with only one Muslim mem-
ber opposing it. Since there was so
much support for it, it is not clear why a
suitable provision for it was not made in
the Constitution at that stage itself. I
wonder if this was because there was
hidden opposition to it. Nehru had
strongly supported the resolution but
took no action on it during his 17-year
term as Prime Minister.
The question of communal riots was
discussed at great length in the Jabalpur
session of the AICC on October 29,
1967, when there was a strong demand
by several members to ban communal
parties. An amendment was also moved
for imposing a ban on communal par-
ties. But the AICC dithered by saying it
would be difficult to decide whether a
party was communal or not. Indira
Gandhi, who was the Prime Minister at
stated agenda must therefore fall foul of
the explicit and implicit prescriptions of
the Constitution.
To achieve the ideal of a secular
state, the incorporation of religious
agenda within political manifestos or
electoral promises be made an electoral
offence and should incur summary dis-
qualification for the individual, or for
the political party if such blatant resort
to religious and casteist sentiment is
part of the party’s substantive poll
plank.”
The minority judgment of the Sup-
reme Court in the Faruqui case referred
to above has observed: “Secularism is
given pride of place in the Constitution.
The object is to preserve and protect all
religions, to place all religious commu-
nities on a par.”
It is significant to note that even
while the Constitution was being draft-
the time, went along with this view pro-
pounded by SK Patil.
A
ny such amendment of the
Constitution would have called
for a two-thirds majority in both
Houses of Parliament. Such an amend-
ment would also have to be approved by
at least fifty percent of the State legisla-
tive assemblies. As stated in Chapter 4,
it was only during the time of Jawahar-
lal Nehru, Indira Gandhi and Rajiv
Gandhi that the ruling Congress Party
enjoyed such massive majority in
Parliament and in the states. But none
of the three stalwarts of the Nehru-
Gandhi family took any steps in the
matter. No government since then has
enjoyed such a majority to undertake
this major task.
After the demolition of the Babri
Masjid, the Narasimha Rao-led govern-
ment wanted to re-establish its secular
credentials. In my discussion with Prime
Minister Rao in January 1993, I had
drawn his attention to the fact that:
FUEL TO FIRE
A VHP rally in Delhi in December 2018 to
demand early construction of the Ram temple
Anil Shakya
Lead/ Book Extract/ Babri Masjid–Ram Mandir Dilemma: An Acid Test for India’s Constitution
20 August 26, 2019

the Akali Dal, the Shiv Sena and the
Muslim League. I had observed:
“The phenomenal rise of communal
political parties and organisations dur-
ing the last two decades, in particular,
underlines that the separation of reli-
gion from politics would sound the
death knell for these parties and organi-
sations, and they would oppose it tooth
and nail. It would, therefore, be a mira-
cle if any steps were taken in the matter
in the foreseeable future. And unless
this is done, any talk of India as a secu-
lar state will continue to be meaning-
less.” (Ibid: 237)
The NDA, headed by the BJP, with
the Shiv Sena and the Akali Dal as
allies, now has a massive mandate again.
It’s further despairing to see that most
other so-called “secular” political par-
ties, and in particular, the Congress too,
have become disturbingly BJPised. As a
result, the objective of separation of reli-
gion from politics has to be written off
at least in the near future. India will
now be practising ‘majoritarian secular-
ism’, if there was one, as a unique exper-
iment. I hope we make a success of it.
Babri Masjid–Ram
Mandir Dilemma:
An Acid Test for
India’s Constitution
Author: Madhav Godbole
Published by: Konark
Publishers Pvt Ltd,
New Delhi
Pages: 296
Price: `650
There were sharp differences not
only between political parties but also
among thinkers, intellectuals and jurists
on the subject. It would, therefore, be
better if the pros and cons were dis-
cussed in a forum such as the NIC so as
to start a national debate on the subject.
I said the government’s seriousness of
purpose and its commitment to the
cause of secularism could be underlined
in a paper to be put up to the NIC. After
the meeting of the NIC, a committee of
jurists and political thinkers could be set
up to draft specific legislative proposals.
At each stage, these could be discussed
in an open manner so as to arrive at the
highest possible common denominator.
I had urged, therefore, that the propos-
als for amendment of the Constitution
should not be pressed till a national
consensus was arrived on the subject.
The Prime Minister had agreed with
this assessment and had asked how soon
a preliminary paper could be prepared
for submission to the NIC. I had told
him that it could be got ready within
two months. He then asked me to go
ahead with the work.
It came as a surprise to me when I
read in the newspapers while on casual
leave in Pune in early March 1993 that
the Prime Minister had announced the
government’s decision to introduce the
Bills for separation of religion from poli-
tics…Obviously, the pressures to move
ahead immediately were too strong,
making the government unmindful of
the fact that such haste would prove
counterproductive to the very cause of
secularism. (Godbole 1996: pp. 416-17)
N
arasimha Rao’s effort to score a
point over other political par-
ties by introducing the Bills for
amendment of the Constitution and the
Representation of the People Act, with-
out any prior consultations, backfired
completely, as was to be expected. No
effort was made to build a consensus
among the political parties, either before
or after the introduction of the Bills.
The way the Bills were piloted by the
government in Parliament was simply
shocking, to put it mildly. It led me to
conclude: “One wonders whether the
Congress party itself was serious about
the issue or whether this was only a
window-dressing to show that, though
the Babri Masjid had been demolished
under its watch, it was firmly committed
to secularism” (Ibid: 237).
At least four undeniably communal
parties were ruling in India—the BJP,
InMarch1993,thenPM
NarasimhaRao’sattemptsto
introducetheBillsforseparation
ofreligionfrompoliticsbackfired
duetolackofconsensus.

Supreme Court/ Pioneer Case
22 August 26, 2019
HOSE who have invested
their wealth in a home are
vital stakeholders in build-
ing projects. In the begin-
ning, the Insolvency and
Bankruptcy Code (IBC),
enacted in 2016, recognised only three
categories of stakeholders—corporate
debtors, financial creditors and opera-
tional creditors. However, special enact-
ments, including the Consumer Prot-
ection Act, 1986, and the Real Estate
(Regulation and Development) Act,
2016 (RERA), conferred rights on allot-
tees of real estate projects which the
IBC divested.
Thus, when 646 home buyers in
projects floated by Jaypee Infratech
Limited (JIL) approached the Supreme
Court in 2017, it was persuaded by the
view that the liquidation of JIL would
not subserve the interests of home buy-
ers. The Court recognised that a home
for the family is a basic human yearning.
In diverse contexts, it has been held
by the Supreme Court to be a part of
the right to life as a fundamental consti-
tutional guarantee. All the counsel for
the home buyers appealed to the Court
to exercise its jurisdiction to ensure
complete justice for them instead of
leaving them at the mercy of the liqui-
dation process.
The concerns of the home buyers
were sought to be assuaged by the
Insolvency and Bankruptcy (Amend-
ment) Ordinance, 2018, which came
into force on June 6, 2018. As a result of
this, home buyers were first brought
within the purview of financial credi-
tors. A “financial creditor” is defined in
Section 5(7) as “any person to whom a
financial debt is owed and includes a
person to whom such debt has been
legally assigned or transferred”.
“Financial debt” is defined as debt along
with interest, if any, which is disbursed
against the consideration for the time
value of money and includes any
amount having the commercial effect
of a borrowing. As a result of the
change in the definition of “financial
debt”, amounts raised from allottees
under real estate projects are deemed to
be amounts “having a commercial effect
of a borrowing”. Hence, outstandings
to allottees in real estate projects are
statutorily regarded as financial debts.
Inawelcomemove,theapexcourt
hasupheldthelawelevatingthe
statusofallotteesofrealestate
projectstocreditorsinorder
toensuregreateraccountability
ofthepromoters
By Venkatasubramanian
A
Dream
of a
Home
T
MINDLESS APATHY
Under-construction flats are a common sight,
with many projects facing huge delays; (right)
home buyers protest at Jantar Mantar in Delhi

Such allottees were brought within the
purview of the definition of “financial
creditors”.
Section 7 of the IBC creates a statu-
tory right in favour of financial creditors
to initiate the corporate resolution
process. Thus, the Supreme Court held
in the Chitra Sharma v Union of India
(2017) case that being financial creditors
under the IBC, allottees in a real estate
project necessarily constitute a part of
the Committee of Creditors (CoC). The
Supreme Court reiterated this ruling in
Bikram Chatterji v Union of India,
involving the Amrapali Group.
Based on these twin judgments, the
Insolvency Committee Report suggested
amendments to the Code, seeking to
clarify, as a matter of law, that allottees
of real estate projects are financial credi-
tors. After the Ordinance inserted three
amendments to the Code, Parliament
passed the IBC (Second Amendment)
Act, 2018, to replace it.
On August 9, the Supreme Court
bench of Justices RF Nariman, Sanjiv
Khanna and Surya Kant upheld the con-
stitutional validity of this Act in Pioneer
Urban Land and Infrastructure Limited
v Union of India.
The bench dismissed the argument
of the petitioners that the Act violated
two facets of Article 14. One, that the
amendment is discriminatory inasmuch
as it treats unequals equally, and equals
unequally, having no intelligible differ-
entia; and two, that there is no nexus
with the objects sought to be achieved
by the Code. The petitioners argued that
the amendments fly in the face of the
objects sought to be achieved by the
Code, that is, to maximise value of assets
so that the shareholders of a corporate
debtor do not suffer from bad manage-
ment or poor management.
T
hus, the petitioners contended
before the Supreme Court that
the “bad eggs” alone were looked
at. They said the entities who had
completed building projects in time and
were compliant with the law could yet
be jeopardised by petitions filed under
Section 7 of the Code to blackmail them
into making payments. This, they said,
would divert funds which were other-
wise to be used for the project. There-
fore, the petitioners challenged the ame-
ndments to IBC as manifestly arbitrary,
excessive, disproportionate, irrational
and without determining principle.
The petitioners alleged infraction of
their fundamental right under Article
19(1)(g) of the Constitution, and the
amendments, not being a reasonable
restriction in the public interest under
Article 19(6) would, therefore, have to
be struck down. The petitioners relied
on RERA to argue that it addresses all
concerns of the allottees, and therefore,
the enactment of a sledgehammer to kill
a gnat would render the amendments
excessive and disproportionate. Through
the amendment, Parliament brought in
persons who are not financial creditors
by forcibly inserting a square peg in a
round hole, the petitioners argued.
Allthecounselforthehomebuyers
appealedtotheCourttoexerciseits
jurisdictiontoensurecompletejustice
fortheminsteadofleavingthematthe
mercyoftheliquidationprocess.Photos: Anil Shakya

of property without authority of a con-
stitutionally valid law, the bench held.
Clarifying the law, the bench held
that the expression “borrow” is wide
enough to include an advance given by
the home buyers to a real estate devel-
oper for “temporary use”, i.e., for use in
the construction project so long as it is
intended by the agreement to give
“something equivalent” to money back
to the home buyers. The “something
equivalent” in these matters is obviously
the flat/apartment, the bench suggested.
The bench was emphatic that the
amounts raised from allottees under real
estate projects would be subsumed
within Section 5(8)(f) of the IBC even
without adverting to the explanation
introduced by the Amendment Act. The
bench drew attention to the fact that the
threshold limit to trigger the Code is
purposely kept low—at only `1 lakh—
making it clear that small individuals
may also trigger the Code as financial
creditors. This would include debenture
holders and bond holders, along with
banks and financial institutions to
whom crores may be due.
The bench underlined that the
Insolvency Law Committee itself had no
doubt that given the “financing” of the
project by the allottees, they would fall
within Section 5(8)(f) of the Code as
originally enacted. The amendment
adds an explanation to Section 5(8)(f),
by way of clarification, that any amount
raised from an allottee under a real
estate project shall be deemed to be an
amount having the commercial effect of
a borrowing.
The bench directed “recalcitrant St-
ates” to appoint permanent adjudicating
officers, a RERA and Appellate Tribunal
within a period of three months from
August 9, and asked the centre to ens-
ure that NCLT and NCLAT are manned
with sufficient members to deal with lit-
igation that may arise under the Code
especially from the real estate sector.
Supreme Court/ Pioneer Case
24 August 26, 2019
They submitted that allottees of real
estate projects are a huge, amorphous
and disparate lot, and including them as
financial creditors would be unworkable
as thousands of petitions would flood
the National Company Law Tribunal
(NCLT). When they are represented on
the CoC, they would speak in different
voices, being concerned only with their
own investment, having no concern
whatsoever for the financial betterment
of the corporate sector.
The centre submitted before the
Supreme Court that sufficient play in
the joints must be given to the legisla-
ture when it comes to economic legisla-
tion, and every experiment that the leg-
islature undertakes should not be inter-
fered with by the Court. The govern-
ment argued that the real reason for
including allottees as financial creditors
is because they finance the project in
which they will ultimately be given
flats/apartments.
Distinguishing RERA from IBC, the
Supreme Court held that the object of
the former is to see that real estate proj-
ects come to fruition within the stated
period and to see that the allottees are
not left in the lurch and are able to
realise their dream of a home or are
paid compensation along with the inter-
est. At the same time, the Supreme
Court cautioned, recalcitrant allottees
are not to be tolerated as they must also
perform their part of the bargain, name-
ly, pay instalments as and when they
become due and payable. RERA thus
ensures that the flat/apartment is con-
structed and delivered to the home
buyer in time, barring which compensa-
tion and/or refund with interest comes
their way.
If, however, the allottee wants the
corporate debtor’s management itself be
removed and replaced so that the corpo-
rate debtor can be rehabilitated, he may
prefer Section 7 application under the
Code, the bench held.
T
he IBC, it said, is beneficial
legislation which can be triggered
to put the corporate debtor back
on its feet in the interest of unsecured
creditors like allottees. The allottees, it
said, were vitally interested in the finan-
cial health of the corporate debtor so
that a replaced management may then
carry out the real estate project as origi-
nally envisaged and deliver the flat/
apartment as soon as possible and/or
pay compensation.
As the Amendment Act is made in
public interest, it cannot be said to be
an unreasonable restriction on the peti-
tioners’ fundamental right under Article
19(1)(g), and there is no infraction of
Article 300-A as no person is deprived
OnAugust9,theSupremeCourtbenchofJusticesRFNariman(left),
SanjivKhanna(centre)andSuryaKantupheldtheconstitutionalvalidityof
theIBC(SecondAmendment)Act,2018.

Column/ Draft Model Tenancy Act
T is one of the ironies of the hous-
ing sector in India that even
though there exists a huge shortage
of houses, particularly in urban
areas, the census count of 2011
showed that more than 1.1 crore
houses were lying vacant across the
country. Needless to say, that number
would have gone up tremendously in the
last eight years.
In a bid to promote the growth of the
rental housing sector, the Ministry of
Housing and Urban Affairs has drafted
the Model Tenancy Act, 2019. In her
first Budget speech, Finance Minister
Nirmala Sitharaman had promised such
an Act and said that the government
would bring in more measures which
would render the current rental laws—
that do not really address the “relation-
ship between the leaser and the lessee
realistically and fairly” redundant.
Most of the states in India already
have their own rental laws.
Maharashtra has “The Maharashtra
Rent Control Act, 1999”, Karnataka has
“Karnataka Rent Control Act, 2001
(known as the Karnataka Rent Control
Act, 1999)”, Delhi has the “Rent Control
Act, 1958” and Tamil Nadu has “Tamil
Nadu Buildings (Lease and Rent
Control) Act, 1960”. Ditto for most of
Brokers,
Please ExcuseTheActisaimedatpromotingthegrowthofrentalhousingandthusaddressesthehuge
shortageofdwellingsaswellastakessomeloadofftheoverburdenedlitigationprocess
By Alok Gupta
CRITICAL AREA
The tenancy law must factor in residential,
commercial or any other type of property
I
Anil Shakya

26 August 26, 2019
Column/ Draft Model Tenancy Act
deal is critical. First of all, only regis-
tered or licensed brokers should be
allowed to operate in the market. The
role of brokers as to their rights and
responsibilities should be well defined.
The Act to be brought in should be
enlarged to define the real estate bro-
king business, too. It needs to be under-
stood that an agent is a mere facilitator.
He is neither a part of the seller or the
buyer, nor is he the entity on whom a
deal depends. He is also not the under-
writer or the guarantor of the deal. He is
just a representative of one of the two or
both the parties.
There are three independent parties
in a typical rent deal. One, the owner;
two, the middleman, popularly known
as the broker or an agent; and three, the
tenant. From the owner’s side, an agent
is asked to bring in tenants at a good
rent while from the tenant’s side, an
agent is supposed to get the lowest rent.
He sometimes also helps in drafting and
registering the agreement. There is a
need to define the role of an agent vis-à-
vis his services taken in a deal.
Another area of concern is the role of
the electronic media related to the real
estate sector. The Act should also define
its role clearly.
The law to be brought in should also
factor in the type of properties to be
rented out. Whether residential, com-
mercial, industrial, land or any other.
Similarly, the law as of now doesn’t dis-
tinguish between an individual owner
and the company owner of a property,
an individual tenant, a group of tenants
and a company tenant.
The commercial terms and condi-
tions of any rent transaction should be
market-driven. Security deposit, advan-
ce rent, agreement period, hike in rent
every year should be allowed to be based
on the demand and supply and as ag-
reed between the two parties.
The law to be brought in should be
invoked only when and where the agree-
ments are incomplete and do not cover
the points of dispute between the two
agreeing parties.
Coming to the security deposit, it is
the other states.
In rent deals, most of the time, dis-
putes arise mainly due to two reasons.
One, the agreement between the two
parties is not well drafted and a lot of
issues are left to the “understanding” of
the parties involved. Two, the agreement
is not adhered to and later, one of the
parties starts asking the other party to
be “practical” or “considerate”. The par-
ties should enter into the agreement
only after giving a thought to all the
aspects of renting the property and the
probable causes of conflicts that may
arise later.
The owners, popularly known as the
“landlords”, even if they own just a small
apartment in a big society, do not rent
out their properties for fear of not get-
ting them back. The law has no business
to sympathise with any such forceful
occupier of the house. The current laws
restrain the owners from disconnecting
essential services, such as electricity and
water supply, for tenants. But when the
same owners do not pay their electricity
or water dues, they are not spared by
such service providers. Why should then
the owners be forced to follow any
such law?
The slow pace of the law and delay in
court judgments discourage the owners
from renting out their properties. On the
one hand, they take the risk of losing
their properties while on the other hand,
they don’t even get the returns worth
taking such risks. An owner gets in hand
less than half of the rent after deducting
the income tax, society charges, property
tax and other incidental expenses, such
as brokerage, stamp duty and registra-
tion fees, etc, leaving aside the interest
cost on the capital deployed.
I
n order to cope with the burden the
judiciary already has, the authority
to resolve property-related disputes
can be vested with the local police and
the IPS officer in charge of the region
can be given the power to pass and
enforce orders based on the agreement
entered into by the parties concerned. In
fact, if the broking industry is nurtured
well, regulated properly and licensed,
the broker of the deal can be authorised
to arbitrate disputes arising out of the
agreements between owners and ten-
ants.
The role of a broker or an agent in a
Onanaverage,anownergetsanetreturn
ofaroundthreepercentthroughrentper
annumoncapitalinvestedinapropertyin
anurbanarea.Thisismuchlowerthan
investmentsinFDsormutualfunds.
DO YOUR HOMEWORK
All possible concerns must be
discussed while finalising a rent
agreement; only licensed
agents should operate in the
real estate rental business
justdial.com

to be understood as to why such an
amount is collected by owners from ten-
ants. Most of the time, tenants vacate
the premises and exit the agreement
abruptly either out of compulsion, such
as poor economic health or for a better
deal or due to the shifting of their base.
In such a situation, the owner is left
with no option but to adjust his dues
such as unpaid rents, unpaid TDS, dam-
age caused to the property, etc., and
other payables such as electricity char-
ges, telephone or data charges, unpaid
dues of other service providers like
maids, milkman, etc., from the security
deposit. If the deposit to be so collected
is capped at two months of the rent, it
would be too little for the owner to cover
his losses. As far as the penalty for not
vacating the premises is concerned, the
owner should be allowed to take posses-
sion of his premises immediately on
expiry (or termination) of the agreement
whether peacefully or forcefully.
R
egarding rent increment in the
middle of the term, it is a com-
mercial issue between the two
parties. Usually, an owner doesn’t want
to increase the rent in the middle of the
agreement unless the market becomes
extremely volatile. The reverse of the
same would apply for tenants. The same
should hence be market-driven and both
parties should clearly define such an
issue in their agreement.
The law seems to be silent on the
issue of cost of entering into the agree-
ment. The prime responsibility of regis-
tering the agreement is that of the ow-
ner, but the cost of the same should be
borne by tenants.
On an average, the owner gets a net
return of around three percent through
rent per annum on his capital invested
in buying the property in any urban
area. Which means, had the same
amount been invested in fixed deposits
in a bank, he would have got around
seven percent. If the same amount was
invested in a mutual fund, the return
would have been over nine percent per
annum. This means that investment in
properties fetches the lowest return.
There is no significant growth of the
capital value, too. This discourages the
investors from investing in the real
estate industry which is the prime rea-
son for its poor state these days.
The law to be brought in should fix
the minimum rent an owner should get
which should be linked to the current
market value of the property. This will
encourage more investors to come in
thereby throwing open more stocks to
the prospective tenants.
It is seen, majorly in urban areas,
that the house owners’ association or the
societies or the area local managements
usually levy a restriction on renting the
properties under their jurisdiction to a
particular set of prospective tenants.
Actually, it should be the owner’s pre-
rogative as to who he rents out to so
long as the primary usage of the proper-
ty is not changed. Singles, bachelors,
religion, caste or creed shouldn’t factor
in any way from taking a particular
property on rent. Surely, this is not an
endless debate. A logical conclusion can
definitely be drawn and a proper law or
a by-law framed after due diligence of
all the facts and situations.
—The writer is a real estate consult-
ant and a patron member of The Estate
Agents Association of India’. The views
expressed in this story are his own
Thecommercialtermsofrentdeals
shouldbemarket-driven.Securitydeposit,
advancerent,agreementperiodandrent
hikeshouldbebasedondemandand
supplyandasagreedbetweenparties.
SHOWING
CONCERN
Finance Minister
Nirmala Sitharaman
had pointed out in her
Budget speech that
the current rental laws
were archaic and
ambiguous and must
be realistic

Column/ Shamnad Basheer Obituary Prof Upendra Baxi
28 August 26, 2019
LVIDA, Shamnad!
The world of legal educa-
tion, research, and
activism suffered a huge
loss on August 8, 2019,
when Professor Shamnad
Basheer left us, at a young age and the
height of his attainments. Much more
was expected from him, but alas it was
not to be! Tributes have been pouring in
stating in effect: “To Sir, With Love”.
He was celebrated as the well-known
founder of SpicyIP, India’s leading blog
on intellectual property. I can read only
a few blogs, but his was one of them,
and I have relied on it often for accurate
and provocative writing. As PT Jyoti
Dutta wrote in Business Line (August 9,
2019), if “there is a singular achieve-
ment that Shamnad Basheer can be
credited with, it will have to be his
efforts to make a subject like Intellectual
Property (IP) a lot less intimidating”.
May I also add that he made IP law
more humane and to do so, in any sec-
tor, is a greater achievement than just
demystifying the law.
Generations will recall with gratitude
his contribution in Rameshwari’s Case
where Justice Rajiv Endlaw (of the
Delhi High Court) held that it was fair
use under copyright law to produce
Xeroxed course study materials for stu-
dent use. And everyone knows about his
contribution as amicus to the Novartis
Case where the Supreme Court decided
to refuse a patent under Section 3(d) of
the Indian Patent Act by interpreting
“efficacy” as “therapeutic efficacy” bec-
ause the subject matter of the patent in-
volved a compound of medicinal value.
Thus, the Court introduced, besides the
conventional attributes for a patent
(novelty, inventive step and application)
a new one of “medical efficacy”. The
actual social impact concerning generic
drug markets still remains to be
explored but normative breakthroughs
remain undoubtedly important.
Increasing Diversity by Increasing
Access (IDIA) was a passion with
Shamnad. He was its founder and man-
aging trustee. In a sense, IDIA was the
very constitutional idea of India because
Shamnad always believed in the poten-
tial of co-citizens, each one having the
potential to rise high, given the right
A Void Difficult to Fill
ThisinspiringandgiftedteachermadeasubjectlikeIPlessintimidatingandhiswell-written
petitionsmadeadifferencetothelivesofordinarycitizens
A

ecology of aspiration. Nandini Khaitan
(Indian Express, August 13, 2019)
recalls an IDIA scholar, Karthika
Annamalai, who, on being empowered
by a leading law school, secured a job at
a top firm of lawyers. She says she had
lived two lives: “One, of a village girl
who grew up in a world of sadness and
desperation, devoid of hope, and the
other, of an educated and confident
woman, who was given an amazing
opportunity to aspire.”
I had met Shamnad only once, I
think at the National Academy of
Juridical Sciences, Kolkata, were he was
a professor. I had, of course, met him in
print many a time and followed his itin-
eraries of legal activism but was never
destined to meet this inspirational and
future-shaping teacher again in this life.
On February 22, 2019, he wrote to
me: “I have grown up on your writings
and continue to savour the latest
insights from your fertile mind, whenev-
er available. Recently I was helping
some patients affected by the J&J hip
implant tragedy and had to do extensive
research on the Bhopal disaster. Your
extensive writings during that phase and
the persuasive advocacy really helped a
lot.” He wrote to me “to solicit” my
“important support for a petition that
we’ve put together. This petition
requests the BCI (the Bar Council of
India) to reconsider the rule prohibiting
academics from appearing in court and
practising law”.
It was a dignified and cogent peti-
tion. It maintained that the allegedly
“prohibitory” rule is “amenable to a
favourable interpretation. We also argue
that unlike most cases where the pro-
hibitory rule has been applied (prohibit-
ing ‘full time’ employees from practising
law), the nature of law teaching is such
that there is no conflict between the
teaching of law and the practice of it. In
fact, one aids the other! We also point to
the paradox of permitting practising
lawyers to teach in law schools (up to 21
hours a week!) whilst at the same time,
preventing law teachers from even prac-
tising a single hour in court!”
I
have not frequently seen such
learned and well-written petitions
in my life. And I do not know
whether Shamnad had the time to send
this to the BCI. If not, the BCI should
consider it now in respect of the memo-
ry of a gifted law teacher and among the
few pioneers of constitutional social jus-
tice in contemporary times.
Unfortunately, I could not join this
petition and explained to him the reas-
ons why I could not change my life-long
position concerning the prohibition on a
full-time teacher from entering the rea-
lm of practice. Having had the privilege
to initiate social action litigation, I, of
course, knew how mutually beneficial
judicial process and law teaching can be.
But both Lotika Sarkar and I appeared
as petitioners-in-person, with the judi-
cial permission to argue this matter on
behalf of the women in the Agra
Protective Home Case, whose constitu-
tional human rights were deeply violat-
ed. Such kind of appearance was legiti-
mated by what I have called epistolary
jurisdiction in social action litigation.
The amount of time this took was enor-
mous—the study of conditions at the
Agra Home, the study of the monthly
report by the District Magistrate, Agra,
to the Supreme Court, state affidavits
and rejoinders and the actual presence
and arguments in various courtrooms
where the matter was heard. There
were other SAL petitions. But at the
25th hour, we managed to respect
our teaching and other academic com-
mitments.
This history Shamnad knew; I briefly
brought him up in my short mail, with
other institutional features of engaging
full-time law teachers within the acade-
mia. I suggested we converse on the
phone, but we both were keeping indif-
ferent health and further conversation
never materialised, unfortunately. All I
can promise, Shamnad, is that I will
want to re-examine my own position
now in mourning and in your honour.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
Everyoneknowsabouthiscontributionas
amicus totheNovartisCasewheretheSC
decidedtorefuseapatentunderSection
3(d)oftheIndianPatentActbyinterpret-
ing“efficacy”as“therapeuticefficacy”.
msfaccess.org

Crime/ Kathua Gang Rape Case
30 August 26, 2019
HE wheels of justice turn
slowly but grind exceed-
ingly fine. This proverb
appears to be coming true
in the shocking case of the
gang rape and murder of
an eight-year-old girl in Kathua district
of J&K. The heinous crime rocked the
nation in 2018 and evoked the concern
of United Nations Chief Antonio
Guterres who described it as “horrific”.
The concerned parties have now taken
the battle to the Punjab and Haryana
High Court in Chandigarh after they
challenged the otherwise widely hailed
judgment of Pathankot’s district and
sessions judge Tejwinder Singh, who
sentenced six of the seven accused on
June 10 this year.
The J&K government and the vic-
tim’s family have taken separate but
almost identical stances. Among about
half a dozen petitions, three appeals
filed by the J&K government are consid-
ered most significant. The state govern-
ment has sought the death penalty for
the three main convicts (Sanji Ram,
Deepak Khajuria and Parvesh Kumar
who were awarded life sentence by the
trial court), conviction of an acquitted
accused, Vishal Jangotra, and three
police officials—former sub-inspector
Anand Dutta, special police officer
Surinder Kumar and head constable
Tilak Raj. The three uniformed men
were sentenced to five years in prison
for destruction of evidence and the
additional charge of conspiracy has now
been put on them.
Only the State can seek enhance-
ment of a sentence slapped on a con-
vict, deriving its power from Section
377, CrPC, which says, among other
things: “The state government may, in
any case of conviction on a trial held by
any Court other than a High Court,
direct the Public Prosecutor to present
an appeal to the High Court against the
sentence on the ground of its inadequa-
cy” and “when an appeal has been filed
against the sentence on the ground of
its inadequacy, the High Court shall not
enhance the sentence except after giv-
ing to the accused a reasonable opportu-
nity of showing cause against such
enhancement and while showing cause,
the accused may plead for his acquittal
or for the reduction of the sentence”.
The victim’s family too has raised
nearly the same demands, with the kno-
wledge that while under Section 372,
CrPC, it can’t ask for enhancement of
punishment for the convicts, it has the
right to challenge the acquittal. Section
372, CrPC, says: “The victim shall have a
right to prefer an appeal against any
order passed by the Court acquitting the
accused or convicting for a lesser offence
or imposing inadequate compensation,
and such appeal shall lie to the Court to
which an appeal ordinarily lies against
the order of conviction of such Court.”
The victim’s family has described it
as a “rarest of rare case” in accordance
with “the standards set by the Supreme
A Heinous
Conspiracy
TheJ&Kgovernmentandthevictim’sfamilyhavechallengedthejudgmentofthe
trialcourtandmovedthePunjabandHaryanaHighCourtforgreaterpunishment
fortheperpetratorsofthiscrime
By Pushp Saraf
RAREST OF RARE CASE
A man beats an effigy of
one of the Kathua rapists at
a protest in Ahmedabad;
(below) Justice Tejwinder
Singh who convicted them
T

Court”, further driving home the point
that the “case of rape and murder of a
minor child by a gang comes under this
category more so when the manner of
committing the crime exhibits complete
insensitivity, cruelty, depravity and per-
version. The motive itself is shocking.
The accused wanted to teach a lesson to
a community by killing and raping a
young member of the community, a
nearly eight-year-old innocent helpless
girl child”.
During investigation, the Crime
Branch of J&K police came to the con-
clusion that the eight-year-old belong-
ing to the Bakerwal community in
Kathua’s Rasana village was raped and
murdered in January 2018 as part of a
conspiracy to “dislodge” the nomadic
community from the village.
The convicts too have approached
the High Court. The appeal filed by
Tilak Raj was admitted on June 25. It
challenges the trial court’s verdict on the
ground that there is only oral evidence
against him and no recovery has been
made from him. The Court has stayed
till the pendency of appeal the recovery
of a fine of `50,000 that has also been
imposed on him. Anand Dutta too has
filed an appeal against his conviction.
T
he case is being heard in Punjab
at the behest of the Supreme
Court so as to ensure a fair trial,
which seemed impossible in Kathua
because of attempts to cause obstruction
of justice (“A beacon for all”: India
Legal, June 24, 2019 issue).
All the appeals were expected to
come up for hearing before a division
bench headed by Justice Rajiv Sharma
on August 7. When contacted at his
hometown in Malerkotla (Punjab),
Mubeen Farooqi, an advocate associated
with the case on behalf of the victim’s
family, told India Legal that the matter
could not be taken up on the scheduled
date because of a lawyers’ strike and has
now been listed for September 11. He
hailed the trial court’s judgment as a
“victory of truth” and the “victory” that
“belongs to all the communities,
Hindus, Muslims, Sikhs and Christians”.
He is associated with the application
filed in the High Court on behalf of the
victim’s family through well-known
advocate and human rights activist
Rajvinder Singh Bains.
Initspleas,theJ&Kgovernmentsaid:“It
isnotacaseofanyspurofthemoment
provocation...acalculatedandmeticu-
louslyplannedconspiracywashatched,
thevictimwasidentifiedandtargeted....”
Photos: UNI

32 August 26, 2019
Their petition asserts that even
though under Section 372, CrPC, the
enhancement of sentence is not covered,
“an appeal can be made to the con-
science of the court” to “suo motu” en-
hance the sentence of three convicts to
“death penalty in the interest of justice”
to be “commensurate with the crime
committed”. It recalls: “In this case,
there is a disturbing indication of politi-
cal and communal tinge by granting
protection to the perpetrators of crime,
elected officials coming to the aid of the
accused, and lawyer after lawyer eager
to represent the accused.” Senior advo-
cate Rajinder Singh Cheema, a promi-
nent lawyer, is representing the state
government.
In its pleas, the J&K government has
stated, inter alia: “It is not a case
of any spur of the moment provo-
cation or even a case where the
accused gets overcome by lust.
This is a case where a calculated
and meticulously planned con-
spiracy was hatched, the victim
was identified and targeted, and what
disturbs the moral fibre of the society is
that the same was done due to enmity
between the two communities, for which
an innocent girl of eight years paid the
ultimate price.”
T
he state and the victim’s family
have relied on almost similar evi-
dence to challenge the acquittal
of police officials on the conspiracy
charge and the exoneration of Vishal
Jangotra. The former has quoted the
trial court which held that the three
policemen played a part in misdirecting
the search party from visiting the area
where the victim was confined. Yet,
according to the petition, it failed to
draw the inference that this misdirec-
tion was not only to shield the culprits
but was “in pursuance of the conspiracy
hatched to execute the plan”.
The appeal states: “The trial court,
on one hand, has come to the conclusion
that the accused were in connivance
with the other main accused, but has
erroneously acquitted the accused of
other charges framed against them,
which stands proved beyond any shad-
ow of doubt.”
In the case of Jangotra, the following
arguments were advanced: the trial
court has “erred gravely” while accepting
his alibi that he was in Uttar Pradesh to
take an examination when the crime
occurred; it has ignored the confessional
statement of convict Parvesh Kumar and
the testimony of three witnesses regard-
ing Jangotra’s presence at the crime
scene besides misreading evidence of
the handwriting expert regarding the
attendance sheet of the examination
Jangotra purportedly took; and “an
interested witness”, his sister, has been
relied upon to show that he had used a
debit card at an ATM in UP while the
card could have been used by anyone.
The ball is now in the Punjab and
Haryana High Court.
Crime/ Kathua Gang Rape Case
DEPRAVED CULPRITS
(Clockwise from left) The three
main accused, Sanji Ram, Deepak
Khajuria and Parvesh Kumar; all
three were convicted and awarded
life sentences by the trial court,
which the J&K government
and the victim’s family have
appealed against

accordance with the Universal Declara-
tion, the Covenants recognise that “...
the ideal of free human beings enjoying
civil and political freedom and freedom
from fear and want can be achieved only
if conditions are created whereby every-
one may enjoy his civil and political
rights, as well as his economic, social
and cultural rights”.
Article 1 of ICCPR says that states
must commit themselves to promoting
the right to self-determination and
respect that right. It also recognises the
rights of people to freely own, trade and
dispose of their natural wealth and
resources. With regard to absolute
rights in land and property, ownership
has been a key issue and this has made
women less powerful. Women who have
land or housing security are less likely to
face domestic abuse.
Bringing the literature of rights into
action has indeed helped, said Prof Sait.
But the transition has not been easy.
There are a set of people who are ag-
ainst land rights for women, citing it
would amount to fragmentation of agri-
cultural land, etc. And many fear wo-
men in authority. But it has also been
proved that women in responsible posi-
tions tend to be less corrupt.
It was acknowledged with regret that
society has always turned a blind eye to
the violation of women. Misogyny is
rampant. It is important to identify,
specifically, who are the duty bearers
and rights holders—those with obliga-
tions to act.
The solution is gender-just laws. An
empowered woman empowers others. A
key message delivered was that in a
HRBA, the process is equally important
as the outcome. All people have rights—
they are rights holders. Governments,
institutions and individuals have res-
ponsibilities (or duties, obligations) that
correspond to these rights. People have
the right to claim their own rights. The
relationship between duty bearer and
right holder is the most important part
of a rights-based approach.
Sait said states would do well to
remember the universality and inalien-
ability of human rights. Nor can others
take them away from a person. Article 1
of the UDHR says: “All human beings
are born free and equal in dignity and
rights.” Universality also refers to the
obligation of each state to respect and
protect human rights in international
instruments.
But action still needs to be taken by
many states on these core values.
—The author is a barrister-at-law
(Honourable Society of Lincoln’s Inn,
UK) and a leading advocate in Chennai
Focus/ Human Rights
UMAN rights are at the
very core of society and
part of the development
of the marginalised. Ev-
ery human is entitled to
human rights. The Hu-
man Rights Based Approach (HRBA)
begins with an assessment to determine
the challenge, development indicators
and who are the most affected.
This was the main theme of a recent
talk organised by a Chennai-based
NGO, Roshni, and Soroptimists UK.
The speaker was Professor Siraj Sait of
the University of East London and a
member of a UN advisory group on gen-
der issues. This was followed by a study
of data on international human rights
obligations ratified by each country.
The Bill of Rights consists of the
Universal Declaration of Human Rights
(UDHR) together with the International
Covenant on Economic, Social and
Cultural Rights (ICESCR), 1966, and
the International Covenant on Civil and
Political Rights (ICCPR), 1966). In
Allpeoplehaverightswhilegovernmentsandinstitutions
haveresponsibilitiesthatcorrespondtotheserights.To
preventviolationoftheserights,fairlawsmustbeenacted
By Maithili Shaan Katari Libby
A Right for Every Human
H
DEMANDING BASIC FREEDOMS
A candlelight march on Human Rights Day
in Patna
UNI

Global Trends/ Kashmir Equation
34 August 26, 2019
HE scrapping of Kashmir’s
special status has once
again demonstrated Prime
Minister Narendra Modi’s
muscular politics. Not only
has the state been stripped
of the limited autonomy it enjoyed, it
has been bifurcated into the two Union
Territories of Ladakh and Jammu and
Kashmir, both under the direct control
of Delhi. The government believes that
this unilateral action will once and for
all take Pakistan out of the Kashmir
equation. Islamabad will have no right
to work towards a negotiated settlement
of the “core dispute’’ between India and
Pakistan.
Many believe it is a smart move. This
would stop the buzz of third party medi-
ation, more so when an unpredictable
US president such as Donald Trump has
spoken of his desire to play peacemaker.
Modi’s supporters believe he has
delivered a masterstroke. It has been
welcomed by a majority of Indians. The
decision, forced on a reluctant people
without prior consultation, may be the
final nail in the coffin for the Kashmir
Valley. India has permanently lost the
battle for the hearts and minds of those
in the Valley unless better sense prevails
and a dialogue begins. Yes, the
Buddhists of Ladakh are delighted, but
Ladakh is not just for Buddhists. There
are a large number of Shia Muslims liv-
ing there. These sections want to be
with the rest of J&K and there is sim-
mering anger among them.
Islamabad is naturally crying itself
hoarse, calling Delhi’s action illegal. It
Global CheckmatePrimeMinisterModi’smuscularpoliticsinabrogatingArticle370hasensuredthatKashmir
remainsaninternalmatterdespitePakistanandChinatryingtorakeitupinmanyforums
By Seema Guha
T
STRONG MESSAGE
Some believe the move is likely to stop the
buzz of third party mediation, as fuelled
recently by US President Donald Trump (right)
UNI

has raised the alarm and is determined
to fight what it regards as a blatant vio-
lation of the UN resolution as well as a
grave injustice against the people of the
Valley. As a first step, Pakistan has
downgraded ties with India and sent
India’s High Commissioner to Pakistan,
Ajay Bisaria, home. It has put a stop on
the limited trade between the two coun-
tries and threatened to take Kashmir to
the UN Security Council (UNSC). Its
first attempt to do so has failed, with
Poland, the country currently heading
the Council, asking Islamabad to solve
the issue bilaterally. Pakistan will con-
tinue to raise the issue at the UNSC.
India believes all this is to raise an
alarm at a time when the US is hoping
to work out a deal with the Taliban in
Afghanistan. The idea is to tell Wash-
ington that Pakistan is in no position to
help in the peace talks as its attention
has been diverted to the Indian border.
Pakistan PM Imran Khan has hinted at
war, knowing that this is a constant
worry for the world. Yet, Pakistan’s
Afghan card has not made much of an
impact on the Americans. The Taliban,
which is itching for a deal, has also said
that Kashmir should not come into
the equation.
Can Pakistan drum up enough sup-
port and make India sweat? Is the world
in a mood to listen? During a press con-
ference aired on PTV on August 11,
Pakistan Foreign Minister Shah
Mehmood Qureshi said: “Giving vent to
emotions is easy and raising objections
is much easier. However it is difficult to
understand the issue and move forward.
They (United Nations Security Council)
are not waiting for you with garlands in
their hands. Any members out of the
P-5 nations can be a hurdle...Do not live
in a fool’s paradise.”
I
t is a fact that Muslim-majority
Kashmir Valley should have gone to
Pakistan at the time of Partition
considering that India was divided on
the basis of religion. The Hindu raja of
Kashmir, Hari Singh, wanted to remain
independent. But found out soon after-
wards that he was not in a position to
fight the tribal raiders sent by Pakistan
to invade his state and had to ask for
India’s help.
Kashmir’s special status under
Article 370 came about because of this.
The issue of Pakistan’s aggression was
taken to the UN by India. In 1948, the
UN passed a resolution on Kashmir.
There were three parts to it. First,
Pakistan was to take out all its fighters
from the state. India had to progressive-
ly reduce the presence of the army. A
plebiscite, conducted by a UN-appoint-
ed nominee, had to be held in the Valley
to determine the people’s wishes.
None of this happened. India has en-
sured it remains a bilateral issue. Over
70 years have gone by, and today, no one
is in the mood to rake up the past. The
liberal world is fast crumbling and liber-
ation struggles no longer elicit the same
response they once did. The world has
watched Israel steadily take over
Palestinian lands and extend its bound-
aries without a murmur. Obsessed as
the international community is with ter-
rorism, all this does not resonate.
Pakistan’s credibility is at an all-time
low and both Delhi and Kabul have rep-
eatedly charged Islamabad with foment-
ing terror in both Kashmir and Afghan-
istan. Considering all this, the chances
of the UNSC getting after India appear
distant. Yet, one can never tell how this
will finally pan out. China is the wild
card here. But even China does not want
a war in the region.
Kashmir borders both Pakistan and
China. Pakistan’s foreign minister, who
flew to Beijing to appraise the Chinese,
has been reassured that China will back
its move. India’s External Affairs
Minister S Jaishankar, on his three-day
visit to China, briefed the Chinese on
Kashmir. Beijing expressed its concern.
While it is not known what was said
behind closed doors, Jaishankar made
Delhi’s position clear while addressing a
meeting of the India-China media
forum in Beijing. “The future of the
India-China relationship will obviously
depend on mutual sensitivity to each
other’s core concerns. It is natural, both
as neighbours and as large developing
economies, that there would be issues in
our ties. Properly managing differences
Inthepresentglobalmilieu,thechances
oftheUNSCgettingafterIndiaappear
distant.Yet,onecannottellhowthiswill
finallypanout.Chinaisthewildcard
here.Butevenitdoesnotwantawar.
DESPERATE OVERTURES
China’s attempt to raise the Kashmir issue
in the UNSC flopped
Representative image/UN Photos

Global Trends/ Kashmir Equation
36 August 26, 2019
is therefore vital. As our leaders agreed
in Astana, differences should not
become disputes. That is how India-
China relations can remain a factor of
stability in an uncertain world,” he said.
The points made were substantial—
both nations must be sensitive to each
other’s core concerns and there would
be issues but these have to be handled
with maturity if Asia’s two largest
nations want stability in the region. So
the message is—don’t rock the boat by
making Article 370 an issue as Pakistan
would like it to be and don’t let the posi-
tive outcome of the Wuhan summit
go waste.
China has called for restraint on both
sides, but it is not yet clear what its ulti-
mate stand will be. China has already
raised its concern about Ladakh.
“China always opposes India’s inclu-
sion of Chinese territory in the western
section of the China–India boundary
under its administrative jurisdiction,” it
said in a statement soon after India
changed the status of Kashmir. “The
recent unilateral revision of domestic
laws by the Indian side continues to
undermine China’s territorial sovereign-
ty, which is unacceptable.’’
The ministry of external affairs
reminded China that the reorganisation
of J&K is India’s internal matter. For
good measure, it added that India did
not comment on Beijing’s domestic
issues. China has cracked down on local
Muslims in Xinjiang and on followers of
the Dalai Lama in Tibet, and is facing
the wrath of pro-democracy activists in
Hong Kong.
UN Secretary-General Antonio
Guterres called on India and Pakistan to
exercise “maximum restraint” and
refrain from taking steps that could
affect the status of J&K as he highlight-
ed the 1972 Simla Agreement to sort out
differences between the two countries.
The UN is well aware of what is hap-
pening in Kashmir.
In a 43-page report released in July
this year by the Office of the UN High
Commissioner for Human Rights, there
were serious concerns about abuses by
state security forces and armed groups
in both Indian and Pakistan-held parts
of Kashmir. The Indian government dis-
missed the allegations as motivated.
The UN is in no position to take
action without support from the UNSC.
Among the five permanent members,
Russia has openly sided with India.
France has been quiet while the Labour
Party in Britain is raising the issue but
not the government. The US has asked
for restraint on both sides. China is the
only country that may raise Kashmir at
the UNSC and bat for Pakistan. But
beyond that not much can happen.
T
he Muslim world has so far not
reacted as it would have done
decades ago. Pakistan had called
for an urgent meeting of the Organisa-
tion of Islamic Cooperation where the
important countries are Saudi Arabia
and the UAE. But as Talmiz Ahmad, for-
mer ambassador to Saudi Arabia and an
expert on the region, said: “The Saudis
and UAE are busy with developments in
their region, Yemen and Iran. They have
little appetite for Kashmir. At best, the
OIC would release a statement.’’
India’s relations with the Gulf
nations have also improved by leaps and
bounds. Saudi Aramco recently
announced buying a 20 percent stake in
Reliance Industries Ltd. Economic
interests are vital and no country is now
in the mood to sacrifice its interests for
a cause that does not directly affect it.
While China needs to be watched,
the rest of the world will possibly not
make much of a fuss. The internal
dynamics and total alienation of the
Kashmir Valley is more of a problem.
Delhi would have to make some over-
tures to the people unless it wants
Kashmir to become a hotbed for jihadi
elements. Pakistan will certainly do all it
can to stoke the flames.
“It’snatural,bothasneighboursandlarge
developingeconomies,thattherewould
beissuesinour(IndiaandChina)ties.
Properlymanagingdifferencesisvital...”
—SJaishankar,India’sexternalaffairs
minister,duringhisrecentChinavisit
“Givingventtoemotionsiseasyandrais-
ingobjectionsismucheasier.Theyare
notwaitingforyouwithgarlandsintheir
hands....Don’tliveinafool’sparadise.”
—PakistanForeignMinisterShahMehmood
QureshionPakistan’soutreachtotheUNSC
Twitter.com

A
uthor and columnist
Shobhaa De is never far
from controversy, largely
thanks to her outspoken nature
and the habit of shooting from
the hip. She’s back in the lime-
light again after former Pakis-
tan High Commissioner to
India Abdul Basit claimed that
in 2016 he had influenced one
of her articles on the Jammu
and Kashmir dispute asking
for a plebiscite to resolve
the crisis.
De has come out all guns
blazing in calling Basit’s version
“dangerous, malicious and un-
fair to anybody who believes in
the truth” and says she met him
once briefly at the Jaipur Litera-
ture Festival when she was with
a group of people at a publish-
ing reception.
However, the truth is that
she did write with some pas-
sion and feeling on Kashmir in
the wake of the death of Hizbul
Mujahideen commander Bur-
han Wani in 2016. In her regular
column in The Times of India,
titled “Burhan Wani is dead but
he’ll live on till we find out what
Kashmir really wants,” her final
paragraph said this: “Kashmir
is a love story. A dream. A fan-
tasy. Kashmir is a poem… an
elegy. Why shatter its pristine
beauty with ugly politics? Why
not display enough moral
courage and talk? Let sane
voices prevail over lethal bul-
lets. Tough. But not impossible.
Let’s see if the present govern-
ment has the guts to go ahead
with a referendum to resolve
the Kashmir crisis once and for
all. Let’s end the lingering pain
in the region and allow Kash-
miris to live in peace, with the
dignity and harmony they are
entitled to.”
De now defends her article
as the voice of a true patriot
and slams Pakistan for fuelling
the fire at an epochal time in
the history of Kashmir.
I
t is unusual to see a Hindu name, that
too of a woman, featuring on the mast-
head as editor of a newspaper in
Kashmir, but Anuradha Bhasin (above) is
the executive editor of Kashmir Times, a
leading English daily in J&K. She has the
lineage and power of her pen and convic-
tion to stand tall amongst all her male con-
temporaries.
Bhasin is now making headlines after
she filed a petition in the Supreme Court
recently, seeking removal of restrictions
imposed on the functioning of journalists in
the region after the revocation of Article 370.
She called for restoration of communication
services and freedom of movement for
journalists in Kashmir.
The Supreme Court passed the petition
on to the registrar but Bhasin, a peace
activist and daughter of Ved Bhasin, popu-
larly called the “Grand Old Man of English
Journalism in J&K”, who founded Kashmir’s
oldest daily, is a fighter as is her lawyer
Vrinda Grover.
Anuradha said: “We had adapted our-
selves to the crisis. But this time it is worse
than a crisis…We were actually dependent
on the news coming out from New Delhi.
Can you believe it!” The Delhi-based Editors
Guild of India has also urged the govern-
ment to take immediate steps to restore nor-
malcy for the media’s communication links.
Media Watch
T
he Karnataka-based
Deccan Herald newspa-
per with seven editions
and an influential voice in the
region, has opted for a major
makeover. It’s latest edition
sports a new masthead in
aqua blue, a colour intended
to attract younger readers.
It is the first major re-
design in the newspaper’s
70-year-old existence and no
expense was spared. The new
layout has been designed by
Edinburgh-based Palmer
Watson Words and Pictures
design agency. As part of the
redesign, a new weekly busi-
ness section has been intro-
duced along with a new
Sunday opinion page and a
supplement called “Showtime”
that focuses on showbiz. The
paper is also planning a new
tagline to replace the existing
“The Power of Good”.
Deccan Makeover
Hard De’s Night
Hard Times

India Legal - 26 August 2019

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