India Legal 27 August 2018

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
August 27, 2018
A B Vajpayee: Man
for all seasons
Triple Talaq as criminal
offence: The triple threat
TheMuzaffarpurandDeoriashelterhomerapecaseshaverestartedadialogueonchild
safetyininstitutionalcare.TheSupremeCourthassteppedinbuttheissueisentangledin
sexualexploitation,adoptionlawsandindifferentstateagencies
ScarredforLife

To run this vast and diverse land, its leaders need
not have 56-inch chests, but hearts as large as
the universe.
In their desperate search for a credible lineage
to establish their political legitimacy in the mod-
ern, independent Indian nation, carved out by
patriots and thinkers belonging mostly to the
Congress party, the ruling BJP’s hardline ideo-
logues have appropriated at various times, Swami
Vivekananda, Gandhi, Bal Gangadhar Tilak, Go-
pal Gokhale, Subhas Bose, Sardar Patel and Am-
bedkar, all of whom, while often at loggerheads
with one another on various policy issues, were
united in their passionate quest for a free and lib-
eral India.
Of course, Jawaharlal Nehru, the icon of In-
dian modernism, and his progeny are exempted
from this pantheon. In fact, De-Nehrufication has
become an oft-expressed article of faith in the
Narendra Modi era as the prime minister tries to
etch his own legacy in the unfolding chapters of
India’s destiny. This is the extreme form of politi-
cal partisanship which blinds most BJP leaders to
the richest, uncontroverted legacy they already
have: the recently departed Atal Bihari Vajpayee.
And, ironically, the man whom BJP leaders
demonise—Pandit Nehru—publicly predicted
that Vajpayee would one day lead India as prime
minister. Nehru was so enraptured by his oppo-
nent’s eloquence and breadth of knowledge in
Parliament that in 1957, he foretold Vajpayee’s
fate. In a meeting with a foreign dignitary, Nehru
said: “This young man one day will become the
country’s prime minister.” This was national
bipartisanship at its best.
This largeheartedness, and the lessons it con-
tained for bipartisan nationalism, was neither
forgotten nor ignored by Vajpayee. Just before he
demitted his first term as prime minister in
the late 1990s, Vajpayee went down memory
lane in a brilliant farewell address in Parliament.
He recalled:
“My friends in Congress may not believe me,
but in South Block there always hung a portrait
of Nehruji. I used to see it occasionally. In Parlia-
ment I had my share of disagreements with
Nehru. I was new. I was a back-bencher. Often, in
order to get a chance to speak I had to threaten
a walkout.
“But gradually I made space for myself and
perhaps a name as well. And when I became for-
eign minister (after ousting the Congress party
during the Janata regime in 1977) I saw one day,
that the portrait of Nehruji was no longer in the
passageway. I asked, where has that photograph
gone? I received no answer. But the portrait was
restored [the whole House applauded].
“Does this sentiment merit respect? Should
this feeling develop in our nation? It was not as if
there were no disagreements with Nehruji. And
these differences emerged strongly during de-
bates. Once I told Panditji openly that his
character was a strange mix of Churchill and
Chamberlain. He did not get angry. Later in the
evening, I met him at a banquet and he told me,
you delivered a terrific speech today, and depart-
ed laughing.
“In today’s world if you express this kind of
criticism you will invite vicious animosity. People
will stop talking to you.
“During the Human Rights Conference in
Geneva, the issue of Kashmir was raised by our
neighbour (Pakistan). The then PM, Narasimha
Rao (Congress), chose to send me to represent In-
dia. The representatives of our neighbour nation
and their ministers were both surprised and
taken aback. One Pakistani politician observed
that Indian democracy is a strange one as an
Opposition leader has been sent to take a stand
for the nation, while in our country Opposition
VAJPAYEE, NEHRU…AND
A DASH OF WASHINGTON
Inderjit Badhwar
Letter from the Editor
| INDIA LEGAL | August 27, 2018 3

leaders create international difficulties.
“One of our leaders remarked, ‘Don’t think,
Narasimha Rao is a simple man. He is extremely
shrewd.’ He told me that he (PM Rao) might not
have sent you (Vajpayee) just to represent the
nation. Maybe there could be a thought that if
things in Geneva don’t go India’s way and a hos-
tile vote against India happens, to share the
blame, Vajpayee can be made the sacrificial goat
[Laughter].
“But I did not believe this line of thought.”
I
ndian political leaders, who borrowed heavily
from America’s founding fathers when they
sat down to frame their own Constitution on
the principles of liberty, equality, the importance
of open debate and strong checks and balances on
executive authority in order to ensure accounta-
bility to the people, may do well to read the fare-
well address of President George Washington in
September 1796. It remains more valid than oth-
ers for all those who profess to be practitioners of
democracy across the world.
In 1796, as his second term in office drew to a
close, Washington chose not to seek re-election.
Says the official website devoted to his legacy:
“Mindful of the precedent his conduct set for
future presidents, Washington feared that if he
were to die while in office, Americans would view
the presidency as a lifetime appointment. Instead,
he decided to step down from power, providing
the standard of a two-term limit that would even-
tually be enshrined in the Twenty-Second
Amendment to the Constitution.”
The website, Mount Vernon (named after
Washington’s estate and home), explains that in
that farewell speech, he cautioned against dan-
gers that could destroy the American Union,
prominent amongst them regionalism and parti-
sanship. He warned his countrymen not to let
regional loyalties overwhelm national attach-
ments: “The name of American…must always
exalt the just pride of patriotism more than any
appellation derived from local discriminations.”
At this time, many Americans primarily identified
with their state or region, but Washington re-
minded the citizenry not to allow such attach-
ments to divide them, lest “designing men” con-
vince them that differing local interests made the
Union unworkable or unnecessary.
Washington feared that pandering to identity
politics would politicise good governance. While
Letter from the Editor
DEATH OF A
STATESMAN
President Ram Nath
Kovind (extreme right),
Vice-President M
Venkaiah Naidu (third
from right), Prime
Minister Narendra
Modi (sixth from right)
and other senior
politicians visited
Vajpayee's residence
in New Delhi to
pay their respects
UNI
4 August 27, 2018

partisanship is now seen as part of the adversarial
political system, the founders of both the Ameri-
can and Indian republics actually feared that
entrenched parties would become disruptive, and
the tools of demagogues seeking power. “Faction-
alism,” as Mount Vernon puts it, “encouraged the
electorate to vote based on party loyalty rather
than the common good. Washington feared that
partisanship would lead to a ‘spirit of revenge’ in
which party men would not govern for the good
of the people, but only to obtain and maintain
their grip on power. As a result, he warned
Americans to guard against would-be despots
who would use parties as ‘potent engines…to sub-
vert the power of the people and to usurp for
themselves the reins of government’.”
I
n Washington’s own words: “The alternate
domination of one faction over another, shar-
pened by the spirit of revenge, natural to
party dissension, which in different ages and
countries has perpetrated the most horrid enor-
mities, is itself a frightful despotism. But this
leads at length to a more formal and permanent
despotism. The disorders and miseries which
result gradually incline the minds of men to seek
security and repose in the absolute power of an
individual; and sooner or later the chief of some
prevailing faction, more able or more fortunate
than his competitors, turns this disposition to the
purposes of his own elevation, on the ruins of
public liberty.
“It is important, likewise, that the habits of
thinking in a free country should inspire caution
in those entrusted with its administration, to con-
fine themselves within their respective constitu-
tional spheres, avoiding in the exercise of the
powers of one department to encroach upon
another. The spirit of encroachment tends to con-
solidate the powers of all the departments in one,
and thus to create, whatever the form of govern-
ment, a real despotism.”
Ironically,themanwhomBJPleadersdemonise—PanditNehru—predicted
thatVajpayeewouldonedayleadIndiaasprimeminister.Nehruwasenrap-
turedbyhisopponent’seloquenceandbreadthofknowledgeinParliament.
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ContentsVOLUME XI ISSUE 41
AUGUST27,2018
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6 August 27, 2018
No Country for Orphans
The horrific exploitation of the young in shelter homes in Bihar and Uttar Pradesh have
restarted a dialogue on child safety in institutional care. The Supreme Court has
stepped in but the issue is mired in sexual abuse, adoption graft and State indifference
LEAD
14
Walk on the Wild Side
The Uttarakhand High Court has taken the state to task on various issues ranging from
shifting of Van Gujjars to commercial use of elephants and tiger deaths
COURTS
18
Elephant Instinct
The Supreme Court and a gutsy collector have red-flagged encroachments in jumbo
corridors in the Nilgiris and cracked down on resorts in the area
20

Differential
Prosecution
REGULARS
Followuson
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Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
| INDIA LEGAL | August 27 2018 7
Cover Illustration & Design:
ANTHONY LAWRENCE
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
International Briefs..........33
Media Watch ..................49
Satire ..............................50
Slammer Shocker 28
Modi Course-Corrects
Taxing those who create wealth and giving it
to freeloaders has led to many millionaires
leaving India. The prime minister has realised
that embracing socialism is not the panacea,
says Sanjiv Bhatia
34
First among Royals
The National Company Law Tribunal rules that the offspring of the late Prince Jagat Singh
are entitled to inherit Jaipur’s estate, till date denied by their step-uncle and his son
40
COLUMNS
Not the American Way
It’s hard to justify US President Donald Trump’s
approach to immigration, seeing as it is entirely out
of character for a nation founded by English émigrés
nearly 400 years ago, writes Kenneth Tiven
38
46Priestly
Transgressions
Why is the CPI(M)-led government in
Kerala hesitant when it comes to
arresting Jalandhar Bishop Franco
Mulakkal? Is it because he belongs to a
politically significant community?
LEGALEYE
Don’t Set Them Free
As the centre asserts its power to not remit the terms of Rajiv
Gandhi’s seven assassins, Tamil Nadu has few options
22
Muzaffarnagar officials oppose
the Uttar Pradesh government’s
decision to withdraw 2013 riots
cases against Jats, but their
votes are important for the BJP
Can’t Have It All
While a petition asks why married persons are
debarred from the Judge Advocate General arm
of the Army, many forget that its tough criteria are
unsuitable for family life, Maj Gen Nilendra
Kumar analyises
36
MYSPACE
PROPERTY
In a relief to homebuyers,
the apex court has
lambasted various
real estate companies
and said it will not
hesitate to sell their
properties and render
them homeless
30
Even after the Supreme Court stipulated that inmates can’t be denied
basic rights, there is no significant improvement in prison conditions
44
Unsafe as Houses
FOCUS
SPOTLIGHT
STATES
Three Steps Backward
Despite diluting the Bill that criminalises instant triple talaq, the centre
has failed to get the draft law passed by Parliament
24

8 August 27, 2018
“
RINGSIDE
“I don’t know who
came to kill me. But
I certainly do know
who made my life
vulnerable. That
includes spokesper-
sons of ruling party
& shrill media
anchors....”
—Umar Khalid,
JNU student, on
Twitter after he was
attacked by a man in
New Delhi
“The Indian rupee
just gave the Sup-
reme Leader, a vote
of No confidence,
crashing to a historic
low. Listen to the
Supreme Leader’s
master class on eco-
nomics in this video.”
—Congress President
Rahul Gandhi, after
the rupee crossed the
`70 mark against the
dollar, on Twitter
“We are told what to
eat, what not to eat,
what to keep in your
fridge, what to wear
if you are a woman…
we cannot assume
that all of us have
the same freedom….
The limits to free-
dom should…
come from a sense
of justice….”
—Writer and
journalist Antara
Dev Sen
"Atalji was my closest friend for over 65 years.
I cherish the memories of my long association
with him, right from our days as pracharaks of
the RSS, to the inception of the Bharatiya Jana
Sangh, the struggle of the dark months during
the Emergency leading to the formation of
Janata Party and later the emergence of the
Bharatiya Janata Party in 1980.”
—Senior BJP leader LK Advani
“Every journey has
an end. My associa-
tion with AAP,
which was beauti-
ful/revolutionary has
also an end. I have
resigned from the
party/requested PAC
to accept the
same....”
—Senior AAP leader
Ashutosh, on Twitter
“Had it (Madras
HC verdict on
burial site) been
negative, I would
have died and
(been) buried next
to Kalaignar.”
—DMK Working
President MK
Stalin, referring to
the fight to get M
Karunanidhi's
burial space on the
Marina beach
“Delhi Police is try-
ing to implicate CM
Kejriwal in a false
case to defame him.
I have told this to
the police and will
say the same thing
in court....”
—Delhi CM Arvind
Kejriwal's personal
secretary, Bibhav
Kumar, a prosecution
witness in the Anshu
Prakash case
“Please drive Biman
Bose out of this
house… They used
my father all these
years and now they
have come to show
respect.”
—Pratap Chatterjee,
the son of late
Somnath Chatterjee,
after the Left Front
chairperson went to
pay tribute to his
father at his house

10 August 27, 2018
An inside track of
happenings in Lutyens’ Delhi
One single American diplomat was
responsible for the sharp slide in Indo-US
relations in the early ’90s. Her name was
Robin Raphel and she was posted in New
Delhi as Political Counsellor. She had
influential contacts in diplomatic, military
and ISI circles in Pakistan from the time
her first husband was ambassador in
Islamabad, along with her background as
a CIA analyst dealing with South Asia. She
made her pro-Pakistan leanings known in
controversial fashion
when she labelled
Kashmir “a disputed ter-
ritory”–a first in the
annals of US diplomacy.
Raphel’s outspoken
advocacy for Pakistan
on the Kashmir issue led
to pressure from India
for her to be removed
from her post. She did leave the State
Department in 1997, only to become a
lobbyist for Pakistan. She is now back in
the Great Game. She has
been revealed as a key
player in back channel talks
with the Taliban in Afghan-
istan, which again, should
make India wary. New
Delhi’s plans for Afghan-
istan, post a US withdrawal,
is still a work in progress
and now that Raphel is
once again calling the shots in the State
Department, it could revive nightmares of
her earlier stint in the region.
ROBIN’S RETURN
It seems that opinion poll results for the
forthcoming elections to the Madhya
Pradesh, Rajasthan and Chhattisgarh
Assemblies, scheduled for November,
have given the BJP and its president, Amit
Shah, the added aggression they needed
for pushing their agenda of
simultaneous provincial and
general elections. A recent
ABP-CVOTER survey has pre-
dicted a Congress resurgence
and BJP rout in these three
states. It is thus no surprise
that the survey result coincid-
ed with Shah writing an eight-
page letter to the Law
Commission unambiguously
backing the simultaneous
polls proposal. The Election
Commission, which in princi-
ple has backed simultaneous
polls, has maintained that
implementing the proposal would require
a slew of amendments to various laws,
and also the Constitution. However, Shah
seems to have found a way to bypass
the need for these amendments in the
short term.
Sources say Shah and Narendra Modi
are contemplating asking MP CM Shivraj
Singh Chouhan, his Chhattisgarh and
Rajasthan counterparts—Raman Singh
and Vasundhara Raje, respectively—to
resign as chief ministers as soon as their
tenures end. The centre can then impose
President’s Rule in these states and lift it
just before the Lok Sabha polls in April-
May 2019. Telangana, Andhra and Odisha,
as per schedule, go to polls along with the
Lok Sabha. States like Maharashtra,
Haryana, Arunachal Pradesh, Sikkim and
Jharkhand—all BJP/NDA-ruled—are
scheduled for Assembly polls in the
months following the Lok Sabha elections.
These states could be asked to dissolve
their Assemblies and bring the polls for-
ward to April-May. As a result, Shah
believes, no amendment to the laws would
be needed for effecting simultaneous polls
for at least 11 states and the Lok Sabha.
SHAH’S SHADOW
Tall claims flow easily off the
tongues of PM Narendra Modi
and his party colleagues.
While they continue to paint
BJP-ruled states as shining
models of good governance,
the truth, based on statistical
evidence, points to the con-
trary. According to the Public
Affairs Index (PAI) 2018, while
the BJP alone, or along with its
alliance partners, rules 18 of
the 29 states, only one BJP
ruled state is among the list of
five best-governed in India.
The PAI was prepared by the
Public Affairs Centre (PAC), a
Bengaluru-based think-tank,
on the basis of detailed study
over several parameters like
law and order, economic free-
dom, environment, transparen-
cy, delivery of justice, social
protection, human develop-
ment, women and children,
among others. As per the
study, four of the top five
states are from the south with
the CPI(M)-led Kerala heading
the list, followed by Tamil Nadu
(AIADMK), Telangana (TRS)
and Karnataka (JD-S-Cong-
ress). The only BJP ruled state
to figure in the top five is Him-
achal Pradesh. The top 10 list
includes all the southern
states–none of which are gov-
erned by the BJP. Andhra
Pradesh, ruled by the Telugu
Desam Party, is placed ninth.
Bihar (JD-U) is at the bottom
of the list while Jharkhand,
Madhya Pradesh and Uttar
Pradesh (all BJP states) are
just above Bihar. Moral of the
story: When Modi starts
boasting, fact checkers go
into overdrive.
KEEPING FACT
CHECKERS BUSY

Delhi
Durbar
The government has given the go-
ahead to shift the annual Indian Aero
Show from its traditional venue of
Bengaluru to Lucknow, which has no
facility for staging such an event involv-
ing a battery of civilian and military air-
craft and related products. The deci-
sion is purely political. UP Chief
Minister Yogi Adityanath has been put-
ting pressure on Modi and Amit Shah
to push his state as a destination for
business and he believes the Aero
Show will be an attractive addition to
his wooing of industrialists.
It has caused great consternation in
Karnataka, a Congress-ruled state,
with Chief Minister HD Kumaraswamy
speaking to the defence minister and
informing her that Bengaluru has the
infrastructure in place at the Yelahanka
air base and asking why the Centre
has taken such a decision. Karnataka
Deputy Chief Minister G Parameshwara
tweeted: "We have been India's
defence hub since Independence, but
under the NDA, we are constantly los-
ing key defence projects and flagship
programs.” It will be the first time since
its inception in 1996 that the Aero
Show is being held out of its home
venue in Bengaluru.
SHOW OF STRENGTH
Saddam Azad, son of Congress veteran
and Leader of Opposition in the Rajya
Sabha Ghulam Nabi Azad, got married
on August 11 to fashionista Gauri Karan
of Gauri & Nainika fame. While wed-
dings in political families and of celeb
couture designers are generally high on
pomp and show, this do saw nothing of
the sort. Saddam and GaurI—whose
pedigree is as impressive as her
hubby’s (she is the daughter of former
CBI director and member of the erst-
while Hyderabad nobility Raja Vijay
Karan) got married at a low-key cere-
mony attended by only close friends
and relatives. The ceremony and a
Havana Nights-themed pre-wedding
bash were organised at the sprawling
farmhouse of the Karan family in south
Delhi’s Chattarpur. While Ghulam Nabi
Azad was busy with his political obliga-
tions through the pre-wedding festivi-
ties, which coincided with the last few
days of Parliament’s high-octane mon-
soon session, sources close to
him revealed that the Congress veteran
is now inviting his colleagues and
friends in batches to his residence for
post-wedding feasts. These very
personal dinners will also give Azad
Senior a chance to introduce his politi-
cal heir, Saddam, to the who’s who of
Indian politics.
WEDDING BELLS
The textile ministry seems to have a
revolving door. The ministry, headed by
Smriti Irani, has had three secretaries
in the past two years, since Irani was
shifted from I&B. Rashmi Verma was
replaced by Anant Kumar Singh who
lasted under a year, and he has now
been replaced by Raghavendra Singh.
Earlier, Irani upset staff and bureau-
crats in I&B with her autocratic ways
and proposed hiring of outsiders in
Doordarshan. Textiles seems to be no
different, with Anant Kumar Singh
resisting efforts to retain a senior offi-
cial who had been transferred under
his orders but Irani wanted retained.
The stand-off eventually found its way
to the PMO which ruled in favour of
Irani—the official was transferred but
so was Anant Kumar.
The Palika Services Officers’ Institute in
Delhi’s Chanakyapuri, a club for
bureaucrats, is under the scanner after
a CBI raid unearthed some unsavoury
goings-on. Two 1980-batch IAS offi-
cers—a former NDMC chairman and
an additional secretary—are being
quizzed for their involvement in what
appears to be hawala transactions
worth thousands of dollars. The probe
started after an FIR was lodged
against Rakesh Tiwari, who used to run
the canteen at the CBI headquarters.
He has been accused of receiving
money from Mumbai-based Neeraj
Kochar through hawala transactions
to influence a disproportionate assets
case against Vivek Batra, an IRS offi-
cer. The arrests of Tiwari and Kochar
unearthed luxury watches, `80 lakh in
cash, jewellery worth `1.6 crore and
documents on hawala deals. It is a
test case for the recent amendment to
the Prevention of Corruption Act
which seeks to protect serving and
retired bureaucrats.
TEST CASE
THE IRANI SHUFFLE

At a time when the Supreme Court
has lambasted the CBI for going
slow in its probe into fake encounters by
the armed forces, more than 350 serv-
ing army officers and soldiers have
approached the Court seeking that pro-
visions of the Armed Forces (Special
Powers) Act (AFSPA) should not be
diluted without amending the Act itself.
The Supreme Court has accepted their
plea and will hear the matter on
August 20.
The officials in their petition have
objected to the pressure being put on
the CBI to speed up the ongoing probe
and file chargesheets against the per-
sonnel in Manipur in fake encounter
killings and pleaded that this makes
them vulnerable and lowers their
morale to fight terrorism. Human rights
should not become critical at the
expense of action against terrorism, the
petition said. It also pleaded that cer-
tain guidelines be laid down by the
Court in favour of those involved in
combating terrorism.
Courts
12 August 27, 2018
—Compiled by India Legal Team
Lawyer couple
suspended by BCTN
An advocate couple was suspended for
unprofessional conduct by the Bar
Council of Tamil Nadu and Puducherry
(BCTN). The husband and wife had allegedly
forced the car of a Madras High Court judge
to stop and used “filthy language” against
the driver. The incident took place on a road
teeming with people. To make matters
worse, they again hurled abuses at the driv-
er at the judge’s residence and even ques-
tioned the judge’s authority.
The BCTN took serious note of the road
rage incident, observing that their uncouth
behaviour had “damaged” the reputation of
the judge and the judiciary. It acted on a
complaint from the personnel security officer
of the judge. The couple has been asked to
respond by August 21.
The Chief Justice of India (CJI),
Dipak Misra made some dis-
cerning observations in his
Independence Day speech at the
Supreme Court. While referring to
various comments made on the
Judiciary, he pointed out that there
is nothing great in criticising an
institution but the challenge lies in
making it even better.
He said: “To criticise, attack and
destroy the system is quite easy. What
is difficult and challenging is to trans-
form it into a performing one. For
that, one has to transcend one’s per-
sonal ambitions or grievances. Cons-
tructive steps need to be taken with a
positive mindset.”
The CJI also said that there may be
some people trying to bring down the
prestige and honour of the institution,
but one has to be careful not to fall in
their trap. He urged all to try and be
productive so that the Judiciary could
attain “greater heights”. He pointed out
that hard work must be done quietly
and with utmost sincerity and it is work
that shall make the right “noise”. He
also said that all should “serve the lady
of justice, the queen of justice…when
the queen of justice sheds tears, all of
us shed tears”. The others who spoke
at the function were Union Law minister
Ravi Shankar Prasad, Attorney General
KK Venugopal and President, SCBA,
Vikas Singh.
CJI: Take
Judiciary
to greater
heights
SC accepts plea supporting AFSPA provisions
SC advice in Kerala
flood situation
The SC became pro-active in trying to
ameliorate the pains of the flood-affected
people of Kerala when it talked about explor-
ing the possibility of reducing the level of
water at the Mullaperiyar dam in Tamil Nadu
from the current 141 feet to 139 feet. The
Court asked the national crisis management
committee and sub-committee constituted
by Union cabinet secretary to look into this,
because it was not an expert. The Court
said that advice from the committee on res-
cue, relief and rehabilitation will be binding
on the Kerala government.

Lead/ Shelter Homes for Children
14 August 27, 2018
ones. According to the latest report by
the Ministry of Women and Child
Development, the total number of chil-
dren in these institutions (registered
and unregistered) are 3,68,267. And
according to a 2007 report by this min-
istry, 56.37 percent of children in CCIs
across the country faced physical abuse
UNI
Scarred for LifeThehorrificexploitationofhaplessminorsintheseinstitutionsinBiharandUPshowsalackof
understandingofgroundissuesandsystems,leavingthematthemercyofexploitativeadults
By Papia Samajdar
HE horrendous ill-treat-
ment and rape of children
in shelter homes in
Muzaffarpur and Deoria
have left the nation
stunned and shocked.
These places are meant to be warm, car-
ing places for children who have been
traumatised by circumstances. Many are
orphans and have mental health issues
and need to be nurtured back into socie-
ty. But the reality is far from that. In
fact, these are places straight out of hell,
where the children are beaten, starved
and sexually assaulted, leaving them
mental wrecks for the rest of their lives.
The Juvenile Justice (JJ) Act defines
a child care institution (CCI) as:
“Children’s home, open shelter, observa-
tion home, special home, place of safety,
specialised adoption agency and a fit
facility recognised under this Act for
providing care and protection to chil-
dren, who are in need of such services.”
This includes a list of basic mental
healthcare services. The JJ Act also
mandates that any such institution be
registered, irrespective of being run by a
state government or an NGO.
The Supreme Court had issued a writ
petition directing all unregistered child
care institutions to be registered by
December 31, 2017. It said that such
institutions should be linked to spe-
cialised adoption agencies so that the
children deemed fit for adoption can
find a home. The Act also places respon-
sibilities on the state government to
form specialised committees to monitor
the institutions and ensure that all
norms of child protection and safe-
guards are followed.
T
However, ground realities are far
from ideal. There are still many child
care institutions which are not regis-
tered. According to the National
Commission for Protection of Child
Rights (NCPCR), until July 2018, there
were 5,850 registered CCIs in the coun-
try and more than 1,300 unregistered

ion. The girls have now been placed in
shelters across the state and are being
counselled. The Bihar Social Welfare
Department is in charge of their recov-
ery and it has taken on board two coun-
selling centres to help.
The rising number of such cases
against children in shelter homes mag-
nifies the need for mental healthcare for
them. Whether the government and
social welfare departments are equipped
to deal with the magnitude of this crisis
is something no one monitors. Although
the National Policy for Children 2013
talks about giving adequate mental
healthcare services to children, aware-
ness and understanding about this sub-
ject is at a very nascent stage. Besides
the exploitation these children undergo
in these shelter homes, many of the
unregistered ones are also indulging in
illegal adoption.
According to the United Nations
Convention on the Rights of the Child,
the best environment for a child to grow
up is in a family or family-like environ-
by the staff of these institutions, 80 per-
cent of children in special needs homes
suffered physical abuse and 47.08 per-
cent of those in institutional care report-
ed sexual abuse. “There is a lack of com-
prehensive and reliable data on children
without parental care in developing
countries, including India,” says Kendra
Gregson, Advisor, South Asia, UNICEF.
T
he Muzaffarpur and Deoria shel-
ter home rape cases have restart-
ed discussions on child safety and
protection in institutional care. In cases
of sexual abuse over a period of time,
the trauma caused to the children could
lead to serious mental health issues if
not addressed in time. In the recent
Muzaffarpur case, 34 girls aged seven to
17 years were allegedly raped for
months, and most of them have speech
impairment. With so much media atten-
tion and political furore over this case,
the Supreme Court has had to step in to
ensure that the victims do not come into
the limelight, even in a morphed fash-
ment. Every child has a right to a family.
In India, some 170 million children are
living in difficult situations and need
care. This means that either they do not
have parent(s) or their parents are
unable to take care of them.
The world over, institutional care in
child care centres is known to be the last
care option, preceded by forms of alter-
native care which provide the child fam-
ily or family-like care. These include fos-
ter care or group foster care, sponsor-
ship, kinship care and adoption.
However, in India where a large
number of children need care, what are
the other solutions that the country pro-
vides? As the world moves towards
deinstitutionalisation of child care, how
is India placed? What are the policies of
the government to safeguard the rights
of the children, while encouraging its
populace to provide care?
Globally, adoption of a child is con-
sidered a legal and permanent solution
in the absence of biological parents or
where the biological parents’ rights are
surrendered, and the child becomes a
legal member of the adoptive family.
Foster care is a temporary living situa-
tion in which the foster family has guar-
dianship only. The child’s biological par-
ents still remain his legal parents, unless
the parental rights are terminated by
Accordingtoa2007report,56.37percent
ofchildreninCCIsfacedphysicalabuseby
staff,80percentofchildreninspecial
needshomessufferedphysicalabuseand
47.08percentreportedsexualabuse.
TWO STATES, SAME HORROR
(Clockwise from below left) Girija and Mohan
Tripathi arrested for running a sex racket at a
shelter in Deoria; outrage over the Muzaffarpur
shelter rapes; main accused Brajesh Thakur;
young ones rescued from the Deoria home
UNI ANI tweet

law. The model guidelines for Foster
Care, 2015, based on Section 42 of the
Juvenile Justice Act (ICPS) and the
United Nations Convention on the
Rights of the Child, define foster care as
“placement of a Child by the Child
Welfare Committee for alternative care
in the domestic environment of a family,
other than the child’s biological family,
that has been selected, qualified,
approved and supervised for providing
such care. Foster carers/parents means
persons/parents selected, qualified,
approved and declared fit by the Child
Welfare Committee for the placement of
the child under foster care”.
I
n case financial support is required
by the extended family, it can be
provided through sponsorship pro-
vided by the ICPS or other schemes.
The eligibility criteria for a child to be
placed in foster care is from 6-18 years.
Foster parents and these children
require counselling. The idea is to
ensure that children are brought up in a
family and have time to adjust to their
new family. The guidelines provide a
monitoring and tracking mechanism for
the children.
However, pushing for adoption of
children in the lower age group has left
the system of foster care crippled. The
fact that prospective adoptive parents in
India want children as young as one
year or less is creating a dent in ensur-
ing the best interests of older children.
This means that children still in their
formative years would not have the
security of permanency. Considering
that most of these children have suffered
some form of trauma or abuse before
being rescued, they need considerable
psychosocial support.
I Bose, a prospective parent, told
T
hough many cases of child care
institutions torturing children have
come to light, little action is taken
against perpetrators. In 2001, the owners
of Anchorage Shelter Home in Mumbai
were charged with sexually abusing the
boys in their care. The home was run by
British nationals and provided lodging
and food to street kids. However, the
Bombay High Court acquitted the
accused on the grounds that the acts
(oral sex) were ruled not to indicate defini-
tive crime under IPC Section 377 and the
testimonies of the children were not reli-
able. The Supreme Court reversed the
order after 10 years and in March 2011
sent the accused back to jail for six years.
Many acts of child sexual abuse were
neither defined nor outlawed in India until
the Protection of Children from Sexual Off-
ences (POCSO) Act was passed in 2012.
But not every accused gets convicted.
In 2012, when a girl died of vomiting
and diarrhoea, post-mortem reports
showed that she was repeatedly sexually
abused in an orphanage called Arya
Anathalaya in New Delhi. The NGO HAQ,
which assisted the police in investigating
the case, filed a report claiming that a
majority of the children interviewed faced
sexual harassment, ill-treatment, eve-
teasing and rape. The police arrested
three staffers, including the chief warden
and booked a 14-year-old boy on
charges of sexual abuse. However, the
management of Arya Anathalaya con-
tended that the Child Welfare Committee
had no authority over it and barred HAQ
from entering its premises. The warden
got bail and is working with the institution
at another location.
In July 2017, reports of the illegal
adoption (selling) being run by a nun at
Mother Teresa’s Missionaries of Charity,
Ranchi branch, sent authorities into a flur-
PROTECTOR PREDATOR?
Bihar social welfare minister Manju Verma after
resigning over allegations against husband
Chandeshwar Verma in the Muzaffarpur case
Lead/ Shelter Homes for Children
16 August 27, 2018
TheMuzaffarpurandDeoriashelterhome
(above)caseshaverestarteddiscussionson
childsafetyininstitutionalcare.Incasesof
sexualabuseovertime,thetraumacould
leadtoseriousmentalhealthissues.
Infamouscases

18 years of age. It was put in place to
ensure non-institutionalisation of chil-
dren in need. However, lack of aware-
ness, cultural demands and lack of prop-
er counselling are some of the problems
plaguing the programme. People forget
that children older than six also deserve
a family-like environment. But without
proper implementation and awareness,
they remain in child care institutions.
There is no publicly available data
on foster care in India and the number
of children placed under it. “In our
experience, foster care is not very
popular in India,” said Rakesh
Shrivastava, secretary, Ministry of
Women and Child Development.
Coming to adoption, there are about
30 million infertile couples in India,
according to a 2016 data collated by
NGOs. There are some 14,000 applica-
tions from prospective parents as
against only 900 children available for
adoption. According to the Central
Adoption Resource Authority, the nodal
body under the Ministry of Women and
Development which regulates and mon-
itors adoption, between April 2017 and
March 2018, 3,276 successful adoptions
took place.
After the adoption process was taken
online, the government had expected
that corruption would be curbed.
“However, the speed is yet to take off.
We are yet to see a surge in the number
India Legal: “I have been waiting to
adopt a child for the past three years
now. The options given to us are older
children five years and above. My wife
and I have decided to wait till we can
choose a child less than two years.”
When asked why, he said that the older
the child, the more difficult it is to
assimilate him.
The foster care programme is still
new in India and is temporary for the
child. It can be extended till he attains
of successful adoptions,” said Shrivas-
tava. Also, in adoption, the best interests
of a child often get ignored, though this
has been the basis of various acts revolv-
ing around the child. The current sys-
tem matches the demands of prospec-
tive parents with that of a child.
Specialised adoption agencies which
take care of the children often do not
have an opinion on the matter.
I
t is a moot question how successful
the government has been in stop-
ping the “black market” in adoption.
Given the number of unregistered child
care centres which often serve as a front
for illegal adoption, the sheer demand-
supply gap forces prospective parents to
find an easier solution.
According to Arun Dohle, founder,
Against Child Trafficking: “The online
system has done nothing to address the
issue of corruption and illegal adoption.”
And the government has been unable to
curb this.
Though policies and laws around
child care seem robust, understanding
of ground issues, lack of data, inade-
quate systems and the sheer number of
children in need makes these policies
and legal instruments weak. “There is
no right or wrong option, it is the man-
ner in which care is provided which
needs to be appropriate,” said Dr
Shantha Sinha, founder of MV
Foundation which works for providing
support to out-of-school children.
The government and civil society
need to work together and create mass
awareness about alternative forms of
care and should not promote one form
over the other. As there is no one rule to
fit all, all forms of alternative care
should have a robust framework, apt
understanding and appropriate systems
to ensure protection of the children.
—The writer is a
communications consultant
ry to monitor child care centres. Though
that particular centre was shut, both its
management and the local government
claimed this was an anti-Christian agen-
da. This happened two years after the JJ
Act mandated every child care centre be
registered with CARA as a specialised
adoption agency.
In West Bengal, political party mem-
bers were involved in funding an NGO
which served as a front for selling 17
children under the guise of adoption. The
police made four arrests in this case.
In March 2018, an unregistered child
care home housing children with HIV
came under the scanner for torture. The
child welfare committee had taken no
action in spite of being aware that it was
functioning without registration. The mat-
ter came to light only when an activist
reported it to the National Human Rights
Commission. No action was taken
against the caretaker, the main perpetra-
tor, as the parents of the victims refused
to file a police complaint. Though physi-
cal and sexual abuse was reported by
the District Child Protection officer under
the POCSO and JJ Acts, no case was
filed. The home is in the process of
being closed down. The existence of
many more unregistered homes cannot
be ruled out.
“Theonlinesystem(startedsinceAugust
2015)hasdonenothingtoaddressthe
issueofcorruptionandillegaladoption.”
—ArunDohle,founder,Against
ChildTrafficking

Courts/ National Parks
18 August 27, 2018
HE Uttarakhand High
Court has taken the state
government to task for its
incompetent and lack-
adaisical efforts regarding
wildlife and forest conser-
vation. In addition to directing its atten-
tion to the general mismanagement of
Corbett National Park and Rajaji
National Park, the Court instructed the
government to arrange for the immedi-
ate removal of Van Gujjars from Rajaji
National Park.
On the relocation of the Van Gujjars,
the Court said: “We give a last opportu-
nity to the state government to apprise
the court how soon these Van Gujjars
would be relocated since the affidavit
filed by the Additional Chief Secretary
on this issue was vague and evasive.
“The state cannot be a spectator. It is
an alarming situation. Remedial meas-
ures are required to be taken at the ear-
liest to save the wildlife,” it reiterated.
The Van Gujjars residing in the for-
est area have been a big challenge for
the state government as well as the Park
authorities ever since it came into offi-
cial existence in 1983. After a govern-
ment census on Van Gujjars in 1998,
around 1,560 families were identified in
the area. Thereafter, 1,392 such families
were relocated in Pathri and Gaindi-
khata villages in Haridwar.
However, due to land paucity, 168
families could not be relocated. Gradu-
ally, their population shot up to 1,610
families in the area. Aside from the fam-
ilies residing in Rajaji National Park, 911
from Shyampur, Rasiabadh and Chidia-
pur ranges are also to be relocated.
According to data collected during a
three-month census in August 2017, 131
Van Gujjar families also live in
Amangarh Tiger Reserve along with
over 2,000 livestock, including cows,
buffaloes and goats. This Reserve is
spread over 9,542.48 hectares and is
home to over 13 tigers, 35 elephants and
other wild animals. It is also a buffer
zone of Corbett National Park.
Sixteen years after Uttarakhand was
formed, there is still no plan to relocate
Batting for Wildlife
TheUttarakhandHighCourthasslammedthestateonVan
Gujjars,commercialuseofelephantsandtigerdeaths
By Govind Pant Raju in Lucknow
T
WHAT PRICE TOURISM?
Tourists enjoying elephant
rides in Jim Corbett
Tiger Reserve
Kh. Manglembi Devi

those living on encroached forest land.
Government norms, land and funds
constraints keep coming in the way of
any specific policy or action.
It’s a no-brainer that these norms
must be changed to suit the need of the
times. Forest officials believe that the
Gujjars have to be shifted from the for-
est. “The Van Gujjars must be shifted
first from the protected areas and then
the process of relocating them from the
non-protected areas of the forest divi-
sion will start,” said a Haridwar divi-
sional forest officer.
I
n a series of decisive actions, the
Uttarakhand High Court has also
banned the commercial use of ele-
phants in the Corbett Tiger Reserve.
The order came after the Court was
apprised that these elephants were sub-
ject to immense cruelty, chained and ill-
treated and some of them were used
commercially by the owners of the
resorts in the Corbett Tiger Reserve
area. It also restricted the number of
vehicles entering its ranges daily to a
maximum of 100. The High Court
directed the state government that not
more than 100 vehicles, including pri-
vate and commercial Gypsys, be permit-
ted to enter Sitabani, Bijrani and Dhela
zones of Corbett Tiger Reserve, includ-
ing Kalagarh and Rajaji National Park
in a day.
The division bench of Justices Rajiv
Sharma and Lokpal Singh held that the
captivity of elephants
was in violation of
Sections 40 and 42
of the Wildlife
Protection Act, 1975.
“The chief wildlife
warden through the
concerned Divisional
Forest Officers
(DFO) is also direct-
ed to issue notices to
the owners of the
elephants to explain under what law
they are using the elephants commer-
cially, including joyrides, in breach of
the Wildlife Protection Act,” the Court
ordered. According to the Court direc-
tive, forest officials have now taken pos-
session of these privately owned ele-
phants, although the supervision of
these pachyderms has become a new
problem for the officers.
Previously, the Court had taken a
strict view of the quick succession of
tiger deaths in the state and had
expressed resentment over the under-
utilisation of the Special Tiger
Protection Force constituted in May
2014. It had warned the government
that “if no categorical assurance for the
deployment of Special Tiger Protection
Force in Corbett Tiger Reserve is given,
we may be constrained to request the
Ministry of Defence to deploy the Eco-
Task Force to protect tigers”.
These strict measures of the High
Court have taken the government and
forest department officials by surprise,
while the wildlife tourism industry
is apprehensive about the Court’s
strict stance.
However, for the Van Gujjars, there
is hope that the government will now
make proper arrangements for their
rehabilitation.
FOREST DWELLERS
A Van Gujjar family in
Rajaji National Park
The doctrine of parens patriae (father
of the country) originated in British
law as early as the 13th century. It
implies that the King is the father of
the country and is under obligation to
look after the interests of those who
are unable to look after themselves.
The Uttarakhand High Court has,
on August 13, invoked the doctrine
of parens patriae to become the
legal guardian of cows and other
stray cattle.
The Court was hearing a PIL filed in
2017 by one Alim from Sohalpur
Gada village in Roorkee tehsil of
Haridwar district. Alim had sought its
intervention to stop illegal cow
slaughter in his village.
A division bench of Acting Chief
Justice Rajiv Sharma and Justice
Manoj Kumar Tiwari directed all circle
officers “to patrol the rural areas once
in 24 hours to ensure that no cow is
slaughtered”. Owners of cattle would
be prosecuted if the cattle are “found
on the streets, roads and public
places”. These were part of a slew of
30 “mandatory directions” issued to
ensure cow protection.
Significantly, the Court has banned
slaughter and export “for the purpose
of slaughter” of “any cow, bull, bul-
lock, heifer or calf”, and sale of beef
and beef products across
Uttarakhand, which is in line with the
Uttarakhand Protection of Cow
Progeny Act, 2007. Also pertinently, it
has directed the state government “to
register cases against persons who
leave vagrant any cow free
for wandering after milking her”.
Uttarakhand HC
becomesgau rakshak
indiamike.com

Courts/ Elephant Corridors
20 August 27, 2018
N eco-conscious judiciary,
ably assisted in its conser-
vation mission by a feisty
young Tamil Nadu state
service bureaucrat, has
given a new lease of life to
elephants in the Nilgiris. On August 9,
four days before World Elephant Day, a
three-member bench of the Supreme
Court directed Tamil Nadu to seal or
close down 27 illegal buildings (mostly
resorts/commercial buildings) construct-
ed in the elephant corridor within 48
hours. The owners of some of the resorts
had filed appeals in the Supreme Court
against a Madras High Court order in
this regard.
The owners of 12 buildings, including
a famous movie star whose lawyers were
present in the Supreme Court, have
resubmitted their documents to the
Nilgiris collectorate for further scrutiny.
Officials have been directed to go through
each document with a toothcomb and
not spare a single defaulter. The new col-
lector—J Innocent Divya, 43, who took
over her new assignment in July 2017—
has been on a mission to restore the lost
greenery of the Nilgiris.
The Supreme Court had upheld
Divya’s 70-page sealed action-taken
report that was presented before it. This
detailed dossier was on illegal, commer-
cial construction that had come up in the
sprawling district over the years. Of the
39 resorts that were flagged for demoli-
tion, only 12 got a temporary reprieve,
while lawyers were not present for the
other 27.
Yesteryears actor Mithun Chakra-
borty’s building is among the 12.
However, sources at the Nilgiris collec-
torate told India Legal that a team of offi-
cials will scrutinise the papers that have
been submitted for approval and punitive
action, including sealing the complexes,
will be taken if needed. The Supreme
Court gave two months’ time to report
the action taken for some other names
that were mentioned in Divya’s report.
WOMAN ON A MISSION
Divya, operating from her office in
Udhagamandalam (formerly Ooty), has
already earned a reputation for cracking
down on environmental pollutants in her
district. From ticking off private hospitals
for not effectively disposing of medical
waste to banning plastic and other anti-
green products, she has earned laurels for
her bold moves.
She has embarked on a major drive to
restore the old glory of her district and
these are some of the measures she has
taken: 19 items of plastic are banned,
including paper bags and paper plates
which contain wax; sanctions for houses
will be through a multi-layer team from
the departments of forests, mining, agri-
engineering and the local gram panchay-
at; heavy fines for littering and compulso-
ry wet waste composting and dry waste
recycling with tie-ups with major stake-
holders. Her itinerary is online and so are
her team’s initiatives. Her predecessors—
P Sivasankaran, Supriya Sahu and Anand
Saving the Jumbo
TheSupremeCourtandagutsycollectorhavered-flaggedviolationsingreen
corridorsintheNilgirisandcrackeddownonresortsinthearea
By Stephen David in Bengaluru
ROAMING FREE
Thre are more than 100 elephant corridors in
India, but many have seen encroachments
A
UNI

V Patil—too had made efforts to make
the hills plastic-free, but Divya has given
heft to the movement.
The apex court judges noted that ele-
phants are a national heritage and were
distraught that illegal constructions had
come up on their habitat. Ecology
researcher Joshua David, who had done
elephant research and conservation in
the Nilgiris between 1997 and 2006
before he founded Beacon Foundation, a
citizens’ initiative for safe and sustainable
society, told India Legal: “As a flagship
species, the elephant has the right of way
in an elephant corridor. Tourism and
businesses cannot claim a right to liveli-
hood in a protected area. That privilege
belongs only to forest-dependent tribals
and wildlife.” An elephant corridor is a
narrow strip of land that links two large
habitats. Securing this space is key for
their survival.
Elephant herds are known to migrate
across 500 sq km every year. But due to
unlawful urbanisation, they are trekking
into human zones, causing conflicts and
sometimes deaths of villagers, who, in
turn, take revenge on the hapless pachy-
derms. India has some 25,000 elephants.
A 2017 800-page study, Right of Passage,
jointly published by Wildlife Trust of
India in collaboration with Project
Elephant and UK-based NGO Elephant
Family, reported over 100 elephant corri-
dors across India: 28 in south India, 25
in central India, 23 in northeastern India,
14 in northern West Bengal and 11 in
northwestern India. Hundreds of ele-
phants die either from accidents with
trains, on state and national highways, in
canals and mining areas, while fragmen-
tation, degradation and habitat loss con-
tinue to plague them.
MAN-ANIMAL CONFLICT
Both Divya’s bold action, spurred by the
top court, and teamwork from many non-
government players have helped to stem
unnecessary deaths of both humans and
elephants. It is estimated that 400 to 500
humans lose their lives in conflicts with
elephants every year, while some 100 of
these animals are killed in retaliation or
by poachers. Rogue elephant poachers
like Veerappan—shot dead in October
2004—were responsible for killing more
than a hundred elephants.
From time to time, the Ministry of
Environment and Forests highlights the
issue of elephant corridors in 22 states
and asks them to urgently reduce inci-
dents of man-elephant conflict and fatali-
ties. More than a dozen states have not
responded favourably to the centre’s dik-
tat. The apex court, peeved over the non-
chalant attitude of some states, was told
that an expert panel was constituted to
give suggestions, including establishing
elephant corridors.
In a response to a PIL before it, the
Supreme Court had some time ago sug-
gested that nine states acquire land
across 27 high-priority corridors to
enable safe movement of elephants. The
Project Elephant Director in the Ministry
of Environment, Forests and Climate
Change, RK Srivastava, had noted that
identifying corridors is an ongoing
process. Non-profit players were involved
in acquiring a 25-acre land to usher in
India’s first-ever privately bought ele-
phant corridor in Karnataka in 2007.
“The key is to involve the local
community and sensitise them to care for
elephants,” says Rev Prem Mitra,
chairman of A Rocha India, a conserva-
tion organisation whose team has
worked closely with farmers and the
community around Bannerghatta
National Park in Bengaluru.
The red flag in the green corridor is a
small step from the apex court, but a
giant leap for elephant welfare.
ONE STEP AT A TIME
Though 39 illegal resorts were ordered to be
pulled down, 12 got a reprieve; (above)
bureaucrat J Innocent Divya is on a mission
to restore the glory of the Nilgiris district
Representative photo: ureadthis.com
“Tourismandbusinessescannotclaima
righttolivelihoodinaprotectedarea.
Thatprivilegebelongsonlyto
forest-dependenttribalsandwildlife.”
—JoshuaDavid,ecologyresearcher

Legal Eye/ Rajiv Gandhi Assassination Case
22 August 27, 2018
HE seven convicts in the
Rajiv Gandhi assassina-
tion case—Sriharan alias
Murugan, AG Perarivalan
alias Arivu, T Suthendra-
raja alias Santhan,
Jayakumar, Robert Payas, Ravichan-
dran and Nalini—have already spent 27
years in prison as part of their life sen-
tence. While life convicts are eligible
for remission of their sentences after
completing 14 years in prison, it is not
mandatory. Besides, the Supreme
Court has made it clear that the state
government is required to consult the
centre before it remits the sentence of
prisoners when the offence has been
investigated by central agencies such as
the Central Bureau of Investigation
(CBI). Therefore, when the centre
informed the Supreme Court on Au-
gust 10 that it had rejected the propos-
al of the Tamil Nadu government to
release the seven convicts, it was clear
that it did not treat them on a par with
similar prisoners whose sentences
might have been remitted in accor-
dance with law.
“The assassination was an unparal-
leled act in the annals of crimes com-
mitted in this country,” the centre told
the state government in a letter. “The
brutal act brought the Indian demo-
cratic process to a grinding halt inas-
much as the general elections to the
Lok Sabha and assemblies in some
States had to be postponed,” it added.
The centre noted that “16 innocent
lives were lost, and many sustained
grievous injuries in the gruesome,
inhuman, uncivilised and merciless
bomb blast”. The centre ruled out
remission of their sentences as in its
view, the assassination showed “excep-
tional depravity”, including the use of a
woman as a human bomb.
The apex court bench of Justices
Ranjan Gogoi, Navin Sinha and KM
Joseph took on record the centre’s let-
ter to Tamil Nadu and posted it for fur-
ther hearing. The bench is examining
the plea of the convicts that the denial
of remission of their sentences
amounts to discrimination, arbitrari-
ness and unreasonableness.
Remissions are of two kinds. One
depends upon the good conduct of a
convict, referred to as “earned remis-
sion”. This case involves the interpreta-
tion of Section 435 of the Code of
Criminal Procedure (CrPC) which
imposes a restriction upon the state
government to consult the centre while
exercising its powers under Sections
432 and 433 of the Code—dealing with
remission powers—under certain con-
tingencies. In the Rajiv Gandhi assassi-
nation case, though 26 accused were
convicted by the Special Court, the
Supreme Court confirmed the convic-
tion against only seven, acquitting the
rest. It confirmed the death sentences
of four, namely, Nalini, Santhan,
Murugan and Arivu, and commuted
the death sentences of the remaining
three to imprisonment for life. Subse-
quently, even the death sentences of
Santhan, Murugan and Arivu were
Tug of War!
Asthecentreassertsitspowertonotremitthesentencesof
thesevenconvictsinthisdastardlycase,TamilNadu’s
optionsappeartobelimited
By Venkatasubramanian in Chennai
T
FREEDOM DREAM
Nalini Sriharan's death sentence was upheld
by the Supreme Court. In 2000, this was
commuted to a life sentence
youtube.com

commuted to life imprisonment by the
Court because of the inordinate delay
in disposing of their mercy petitions by
the president. Nalini’s death sentence
was commuted by the governor of the
state in 2000.
In a landmark judgment on Dec-
ember 2, 2015, the constitution bench
of the Supreme Court held that the
word “consultation” in Section 435
means concurrence of the centre.
During the hearing of this case, the
centre conceded before the Court that
since the period of imprisonment un-
der various central acts invoked against
the accused had already been suffered
by them, the requirement of remission
or commutation by the centre did not
arise, and it was for the state govern-
ment to pass such an order under
Section 435(2) of the CrPC. However,
the centre insisted that since the CBI
investigated the case, its own concur-
rence to remit sentences by the state
government is mandatory.
In the 2015 judgment, the Supreme
Court made it clear that the right to
claim remission, commutation,
reprieve, etc. as provided under Article
72 or Article 161 of the Constitution
will always be available as constitution-
al remedies. In the context of the rejec-
tion by the centre of Tamil Nadu’s plea
to remit the sentences under Section
435 of the CrPC, the state government
can perhaps explore whether it can use
its powers under Article 161 of the
Constitution, and recommend to the
governor to remit the sentences. There
is no restriction on it to consult the
centre before
invoking its pow-
ers under Article
161. The Supreme
Court held in 2015
that the powers
under Section
432/433, CrPC, on
the one hand, and
those under Article 72 and 161, on the
other, are distinct and different. The
Tamil Nadu government had contend-
ed, however, that the power to remit
sentences would not undermine the
nature of crime committed as the two
issues are clearly distinguishable. The
centre, which has now cited the nature
of the crime committed by the convicts
as the ground for rejecting their plea
for remission, has clearly disagreed
with the state government’s view.
T
he Supreme Court, which is yet
to examine this issue, had held
in 2015 that comparatively
greater weight ought to be attached to
the opinion of the centre which,
through the CBI or other central inves-
tigating agencies, was in charge of the
investigation, and had complete car-
riage of the proceedings. In their dis-
senting judgment (which has not
been disputed by the majority judges)
in the 2015 case, Justice Abhay
Manohar Sapre and Justice UU Lalit
observed: “Each of the convicts, having
undergone about 23 years of actual
imprisonment, there is definitely
change in circumstances. An earlier
exercise of power under Article 72 or
161 may certainly have taken into
account the gravity of the offence, the
effect of such offence on the society in
general and the victims in particular,
the age, capacity and conduct of the
offenders and the possibility of any ret-
ribution. Such assessment would natu-
rally have been as on the day it was
made. It is possible that with the pas-
sage of time the very same assessment
could be of a different nature. It will,
therefore, be incorrect and unjust to
rule out even an assessment on the
subsequent occasion.”
The two dissenting judges differed
from the majority three judges only on
the question of whether the courts are
justified in imposing a sentence of
imprisonment beyond the remission
powers of the centre and the states.
While the majority judges held that it
is permissible, the minority judges dis-
agreed. The issue before the three-
judge bench currently is different, as
none of the convicts in the Rajiv
Gandhi assassination case are under a
sentence of imprisonment which is
beyond the remission powers of the
state and central governments as
expressly stated by the Court.
Therefore, the views of the minority
judges regarding change in the circum-
stances warranting a fresh assessment
of the eligibility of the convicts for
remission, assumes significance.
RajivGandhi
(right)waskilled
inasuicide
bombblastin
Sriperumbudur,
TamilNadu,on
May21,1991,
carriedoutbythe
LTTE.Hewas47.
FATES IN BALANCE
(Clockwise from right)
Murugan, Perarivalan,
Santhan, Jayakumar,
Robert Payas and
Ravichandran have
also spent 27 years
in prison, just
like Nalini

Focus/ Draft of Muslim Women Bill
24 August 27, 2018
YEAR ago, a historic
verdict by a constitution
bench of the Supreme
Court had outlawed ins-
tant triple talaq or talaq-
e-biddat, terming it
“arbitrary, unconstitutional, illegal and
even un-Islamic”. The minority verdict
delivered by then Chief Justice JS Khe-
har and Justice S Abdul Nazeer had
favoured legislative recourse for banning
talaq-e-biddat. The Narendra Modi gov-
ernment latched on to this minority ver-
dict and declared that such a legislative
framework would be brought in soon. It
is a different matter that the majority
verdict—delivered by Justices Kurian
Joseph, Rohinton Nariman and UU
Lalit—had overruled the minority ver-
dict and outlawed instant triple talaq
with immediate effect, thereby render-
ing futile the need for a legislative ban
against talaq-e-biddat.
But the Modi government went
ahead with its plan anyway. It set up a
five-member group of ministers that,
within three months of the Supreme
Court’s verdict, drafted the Muslim
Women (Protection of Rights on Ma-
rriage) Bill and then sought to have it
cleared by Parliament during the de-
layed and curtailed winter session that
was convened in January.
The draft law which reiterates ins-
tant triple talaq as illegal (the top court
had already done so unequivocally) and
a criminal offence punishable with a
three-year jail term for the erring hus-
band, had sailed through the Lok Sabha
Triple Whammy
DespitedilutingtheBillthatcriminalisesinstanttripletalaq,thecentrefailedtogetthe
draftlawpassedbyParliamentwhiledoubtslingerovertherealagendabehindit
By Puneet Nicholas Yadav
A
Photos: UNI

but got stuck in the Rajya Sabha.
Six months after that embarrass-
ment, the cabinet recently approved
amendments that diluted various provi-
sions of the Bill ostensibly to accommo-
date the Opposition’s concerns. The cen-
tre may have hoped that doing so would
enable passage of the amended draft
legislation during Parliament’s recently
concluded monsoon session. This was
not to be.
Listed in the Rajya Sabha’s legislative
business curiously for discussion and
passage on August 10—last day of the
session which was also a Friday (nor-
mally reserved for Private Member Bills
and resolutions)—the Bill was not intro-
duced by the centre. The chairman, M
Venkaiah Naidu, announced that dis-
ruptions would not enable a debate on
such crucial legislation. The Bill has
thus been deferred to the winter session.
P
redictably, the Treasury benches
were quick to blame the Congress
and other Opposition outfits for
“deliberately” stalling the passage of the
Bill due to “vested interests”—a view also
voiced by the prime minister in his
Independence Day address. The optics—
a hardline Hindutva party fighting the
“secularists” to ensure justice for thou-
sands of wronged Muslim women—
make for an interesting narrative in an
election year. The political machinations
behind the Bill are, thus, just as impor-
tant as the provisions of the draft law.
There are three key differences in the
revised Bill, although the contentious
issue—of making instant triple talaq, an
essentially civil dispute in a marriage
contract, a criminal offence—has not
been resolved.
The draft law passed by the Lok
Sabha during the winter session had
made pronouncement of talaq-e-biddat
a non-bailable offence. The amend-
ments approved by the cabinet allow a
magistrate to grant bail after hearing
the victim. Secondly, while the earlier
draft allowed anyone to file a complaint
against a Muslim man for divorcing his
wife through three consecutive talaq
pronouncements, the amended draft
says that only the wife or her relatives
can do so. Lastly, the new draft makes
the offence compoundable—a magis-
trate can allow withdrawal of the case if
the wife seeks reconciliation and the
husband agrees.
The changes in the proposed law
reflect some of the concerns raised by
Opposition parties and stakeholders
from the Muslim community against the
original Bill. However, they also raise
new doubts. The most vociferous
protests against the Bill continue to
come from members of the All India
Muslim Personal Law Board (AIMPLB)
and Muslim politicians like Hyderabad
MP Asaduddin Owaisi. Owaisi has
maintained his criticism of the Bill
being “a tool to imprison Muslim men”
and demanded that it be sent to a select
committee of Parliament for further
deliberations. Various Opposition par-
ties too favour a greater scrutiny of
the Bill by a Parliamentary Select
Committee.
Why the Modi government is reluc-
tant to do so is inexplicable, even worri-
some, as conventionally, governments
refer crucial Bills to different parliamen-
tary panels so that disparate views are
factored in before arriving at a consen-
sus. Even progressive Muslims who have
been demanding a strong deterrent
against the abhorrent practice haven’t
wholeheartedly lapped up the proposed
draft Bill despite the changes.
Zakia Soman, co-founder of the
VEXED ISSUE
(Facing page) Muslim
women protesting
against the triple
talaq Bill; (right) PM
Narendra Modi in his
Independence Day
speech took credit for
trying to end triple
talaq and blamed
“some people” for
stalling it; (below)
Asaduddin Owaisi
(extreme right) has
maintained his
criticism of the triple
talaq Bill

Focus/ Draft of Muslim Women Bill
26 August 27, 2018
Bharatiya Muslim Mahila Andolan
(BMMA) which fought hard in the apex
court to have talaq-e-biddat declared
illegal, believes that the changes are bet-
ter than the earlier provisions and wants
Opposition parties to support the Bill’s
passage. However, she insists that a bet-
ter way out would have been to bring in
a codified Muslim Personal Law. “The
changes to the Bill leave scope for recon-
ciliation, unlike the earlier draft.
However, our demand for a codified law
still exists. There is no guarantee that
attaching criminality will act as a deter-
rent and the issue of desertion of the
wife, something common even in other
communities, remains unresolved. A
codified law could deal with such issues
better,” Soman told India Legal.
Professor Faizan Mustafa, vice chan-
cellor of Hyderabad-based National
Academy of Legal Studies ad Research
(NALSAR), was blunt with his criticism.
“I firmly believe that a civil matter like
marital dispute should not be made into
a criminal offence. A better way out
would have been to work within the
means of civil jurisprudence. The gov-
ernment could have brought a law
which said that a husband pronouncing
instant triple talaq will have to pay the
wife five times the agreed mehr (dower)
and face jail upon non-payment.”
Mustafa says that the three-year jail
term is “extremely disproportionate to
the offence”. “If you look at the Indian
Penal Code, offences like culpable homi-
cide not amounting to murder, printing
and smuggling of counterfeit currency,
certain categories of sedition charges,
etc., attract a lesser penalty. The provi-
sion is bizarre,” he told India Legal.
T
he Congress party, which has to
take the blame for forcing Mus-
lim women to continue facing the
ignominy of being forced out of mar-
riage due to talaq-e-biddat because of its
legislative reversal of the 1985 Supreme
Court verdict in the Shah Bano case, has
now been backing the move to ban
instant triple talaq. However, it is still
opposed to the Modi government’s Bill.
Sushmita Dev, All India Mahila
Congress chief, told India Legal: “We
support any move to declare instant
triple talaq illegal. However, the draft
Bill is unacceptable because it doesn’t
ensure that the wronged wife gets the
means to sustain herself and her chil-
dren after being abandoned by her hus-
band following an illegally pronounced
divorce. Where is the guarantee that the
husband will provide financial assis-
tance? Why will he or his family pay the
wife if he is imprisoned?”
While Modi and his law minister,
Ravi Shankar Prasad, have been quick to
blame the Opposition for stalling the
passage of the Bill, the events that
unfolded in the monsoon session tell a
different story. For a better part of the
session, the Bill was not listed for dis-
cussion and passage in the Rajya Sabha.
Then, days ahead of the session’s conclu-
sion, the cabinet approved changes to
the Bill and listed it for passage on
August 10—the last day of the session.
Disruption in proceedings of the
Rajya Sabha had been witnessed
through the session. It was evident that
the last day would be no different given
the Opposition’s relentless attack over
the alleged Rafale deal scam. Even if the
Rajya Sabha had cleared the new ver-
sion of the Bill, it would have to be sent
back for discussion and passage by the
Lok Sabha—something that was unlike-
ly to happen within a day.
Why didn’t the government show
greater sincerity and urgency in getting
the Bill passed by Parliament if the
interests of Muslim women was a sub-
ject “close to the heart” of the prime
minister? Perhaps BJP leader Subra-
manian Swamy gave the game away
long before the changes were even made
to the draft Bill. More than a month
back, in candid interviews to a news
agency and portal, he claimed that the
BJP raked up the issue of banning triple
talaq to “divide the Muslim community’s
vote, gain votes of Muslim women while
continuing to consolidate its Hindu sup-
port base”.
Promises of social reform, even
unfulfilled ones, are a good gamble for
winning elections. The next Lok Sabha
polls are less than a year away. Muslim
women may, however, need to wait
longer for the actual reform to happen.
The journey for justice is still far
from over.
“Maritaldisputecan’tbe
madeintoacriminaloff-
ence.Abetterwayoutis
toworkwithinthemeans
ofciviljurisprudence.”
—Prof.FaizanMustafa,
vicechancellor,NALSAR
“ThechangestotheBill
leavescopefor
reconciliationunlikethe
earlierdraft.Ourdemand
foracodifiedlawexists.”
ZakiaSoman,co-founder,
BMMA
“Wesupportanymove
todeclareinstanttriple
talaqillegal.However,
thedraftBillis
notacceptable.”
—SushmitaDev,AllIndia
MahilaCongresschief

Focus/ Prison Reforms
28 August 27, 2018
UK court hearing India’s
extradition plea on Vijay
Mallya has asked for a
video of Mumbai's Arthur
Road jail, where the flam-
boyant ex-liquor tycoon
will be detained if sent back to India.
Purportedly, the purpose of the request
is to verify Mallya’s concerns about the
prison wards being unliveable and lack-
ing even natural light and ventilation.
This unusual situation could result in
one of two possible outcomes. First, as a
knee-jerk reaction, Arthur Road jail
could be hastily dressed-up for the pur-
pose of conveying a picture that helps
move the extradition plea forward.
Second, in a greatly unwise move, the
Ministry of Home Affairs may provide
the UK court with as-is photographs of
the jail and possibly jeopardise the
extradition trial.
There is a third scenario too, which
although improbable, stares at us with
glaring necessity: that the Indian gov-
ernment finally sees, in full light, the
deteriorating condition of prisons, and
the inhuman treatment meted out to
privilege-less citizens in the name of
correctional reform.
That prisons in India are overcrowd-
ed dens where violence and deprivation
perpetuate on a daily basis is common
knowledge. But to fully understand the
gravity of the situation, one must note
that most prisons in the country are
100-150 years old and were built during
the British rule when the prisoner popu-
lation was relatively negligible. Over
time, due to population growth and tri-
als getting delayed, the number of pris-
oners has increased substantially. As a
result, the number of inmates in most
prisons is about two to three times over
their capacity.
In Mumbai’s Arthur Road jail, there
are over 2,700 inmates against a sanc-
tioned capacity of 804 inmates. In
Delhi’s Tihar jail, considered one of the
best prisons in the country, there are
10,500 inmates against a sanctioned
capacity of 7,000 inmates. A large num-
ber of inmates are undertrials who have
been languishing behind bars despite
getting bail as they are too poor to fur-
nish the bail bond. According to the
National Crime Records Bureau, 67 per-
cent of the prisoner population compris-
es undertrials.
As stressed by the National Human
Rights Commission (NHRC) on many
occasions, prisons are “plagued with
numerous problems like severe over-
crowding, under-staffing, lack of ade-
quate medical care, physical maltreat-
ment of prisoners including custodial
deaths, lack of infrastructure, poor
Despitefar-reaching
measuresbeing
suggestedandthe
SupremeCourt
stipulatingthatinmates
cannotbedenied
basichumanrights,
significantimprovement
stilleludesIndianprisons
By Vrinda Agarwal
Jailhouse Shock
A
COPS OUTSIDE, DANGER INSIDE
Police officials gather outside Arthur Road jail
in Mumbai after an inmate’s death
Thesmallchildrenofwomeninmates
livewiththeminsidetheprisonandhave
tobereleasedoncetheyattainsixyears
ofage,sometimeswithnooneonthe
outsidetocareforthem.

administration and inadequate inter-
agency communication”. While the rich
and privileged find a way to work
around the problems, for others, prisons
are living hell. Such inhuman
conditions have persisted despite the
Supreme Court having interpreted
Article 21 of the Constitution to stipu-
late that prisoners cannot be denied
basic human rights.
W
omen prisoners, although
recognised as a separate cate-
gory of prisoners by the
Supreme Court, suffer no better fate
than their male counterparts. In fact,
they have to face the additional burden
of managing their hygiene and sanitary
needs in a prison environment that is
often hostile. The reality is even grim-
mer for those women inmates whose
small children live with them inside the
prison and have to be released once they
attain six years of age, sometimes with
no one outside to care for them. The
Supreme Court recently suggested that a
pragmatic policy be framed to address
the issue of welfare of such children
after they are released from prison.
Barring interventions by the courts,
the cause of prison reforms in India
has been a neglected one, lacking insti-
tutional character and real impact.
Prisons are a state subject under the
Constitution, thus state governments are
responsible for the administration of
prisons within their territory. However,
some states have not even updated their
prison manuals to align them with the
Model Prison Manual 2016 prepared by
the Ministry of Home Affairs.
The continued neglect by the central
and state governments towards prison
reforms has led to organisations like the
NHRC playing an interventionist role
and responding to serious lapses that
are brought to its notice. The NHRC has
also made several recommendations for
prison reforms which include replace-
ment of the Prisons Act 1894 with a new
one, uniformity in prison manuals,
reducing overcrowding, setting up of
more courts, increased spending on
prison reforms, etc.
In the past, the central government
has also set up various committees to
suggest recommendations for prison
reforms. Foremost among them is the
All India Jail Committee (1919), which
recognised reformation and rehabilita-
tion of offenders as one of the objectives
of prison administration. This was
followed by the Indian Jail Reforms
Committee (1980) under Justice AN
Mulla, the RK Kapoor Committee
(1986) and the Justice Krishna Iyer
Committee on Women Prisoners (1987),
and the All India Prison Manual
Committee (2000).
In 2007, the Bureau of Police
Research and Development (BPRD) had
framed a draft national policy on prison
reforms and correctional administration.
This policy suggested enactment of uni-
form and comprehensive legislation on
reformation and rehabilitation of offend-
ers and envisaged that the subject of
prisons be included in the Concurrent
List of the Seventh Schedule to the
Constitution. Other key recommenda-
tions included development of a well-
organised prison cadre to ensure efficient
functioning of prisons and setting up of
a National Commission on Prisons as the
nodal authority on all matters relating to
prisons and allied services.
Undoubtedly, several studies have
been carried out and far-reaching meas-
ures have been suggested, yet there has
been no significant improvement in the
condition of prisons. While addressing a
seminar on prison reforms organised by
NHRC in 2014, Home Minister Rajnath
Singh had mentioned that state govern-
ments will be provided with more funds
for modernisation of prisons. He
added that the central government will
work to ensure that the recommenda-
tions made by NHRC are implemented
by the state governments.
If the Ministry of Home Affairs is
still looking for an opportune time to act
on those assurances, now would be a
good one.
Adraftnationalpolicyonprisonreforms
andcorrectionaladministrationsuggests
enactmentofcomprehensiveand
uniformlegislationonreformationand
rehabilitationofoffenders.
NEW BUILDINGS, OLD PROBLEMS
Prisoners being shifted to a newly
constructed jail complex in Amritsar
UNI

Property/ Courts’ Activism
30 August 27, 2018
HOUSANDS of harried,
stressed and anxious
homebuyers in the Na-
tional Capital Region
heaved a sigh of relief early
this month as the Supreme
Court sent a tough message to default-
ing real estate companies who had
abandoned their projects or were not
delivering houses to those who had
invested in them.
The apex court said that it would sell
their properties and use that money to
get the houses constructed. For the first
time, homebuyers saw light at the end of
a dark tunnel as many had invested
their life’s savings and were waiting to
get possession.
Many skyscrapers in Noida and
Greater Noida stand as ugly, half-built
sentinels. There are no construction
workers in sight. The concrete struc-
tures are reminders of numerous
fly-by-night real estate companies that
have cheated thousands. They had
stopped the construction saying they
had no funds.
After giving builders enough time to
mend their ways, bring in ethical prac-
tices and put their finances in order, the
Court ordered attachment of all proper-
ties and bank accounts of the Amrapali
Group. It also attached 40 subsidiary
companies, promoters and directors for
defrauding thousands of homebuyers.
A bench of Justices Arun Mishra and
UU Lalit said: “You are in the hands of
the Court now and you have to act cau-
tiously and uprightly. Don’t play smart
with us. We will sell every inch of
your property and render you homeless.”
They pointed out that the real estate
company had made homebuyers
wait for years and so the Court would
not hesitate to go to any lengths to pro-
tect their interests.
The Court asked Amrapali to file
details and valuations of its assets and
gave the company a fortnight to comply.
This was after the Group said it had
identified seven properties that could be
sold for around `400 crore. The Court
then said it was not enough as `5,112
crore was required to complete the
unfinished projects. It asked for all asset
valuations which could then create the
required amount.
Shell Companies
Inareliefforhomebuyers,the
SupremeCourthasslammed
variousrealestatefirmsand
saiditwillnothesitatetosell
everyinchoftheirproperties
andevenrendertheir
promotershomeless
By Ramesh Menon
T

can complete all projects of Amrapali.
The Court also asked for details of
the company’s present and past direc-
tors who had worked there since 2008.
It asked for a report on companies res-
ponsible for the maintenance of Am-
rapali’s different projects. It was clear
that the Court meant business.
The Court had earlier warned the
Amrapali Group, its promoters and di-
rectors of severe consequences if it failed
to raise `5,000 crore to complete its
half-done housing projects.
It said in no uncertain terms that it
would order the sale of all properties of
the Group, including their individual
homes, as buyers had been short-chan-
ged and cheated. As many as 43,000
homebuyers had invested in homes that
the real estate giant had promised. Of
them, 170 towers were in Noida and
Greater Noida alone.
Amrapali is not the only one to be
slammed by the Court. It also ordered
the sale of Jaypee Infratech Ltd (JIL) to
investors and promoters. In a unique
act, it offered homebuyers a seat at the
table if they were interested. Interes-
tingly, under the amended Bankruptcy
Code, homebuyers are classified as
financial creditors empowering them to
decide on the company’s future along
with lenders.
Clearing the decks to start insolvency
proceedings against another real estate
company, Jaiprakash Associates Limited
(JAL), a Supreme Court bench headed
by Chief Justice Dipak Misra and Jus-
tices AM Khanwilkar and DY Chandra-
chud said: “The claim of JAL that flats
were delivered is a fractured claim as
flats have been delivered in incomplete
stages and are not in accordance with
allotment letters. The flooring is not
complete, doors and windows are miss-
ing and no objection certificates have
Earlier, the Court had directed
Amrapali to complete its projects so that
homemakers could move in. Instead,
Amrapali approached the National
Buildings Construction Corporation
(NBCC), a public sector company,
requesting it to take over its projects.
The Group should not have done this
when a case filed by the homebuyers of
Amrapali projects was being heard in
the Court. The Court now plans to hand
over the amount to the NBCC so that it
not been obtained.” It further observed
that JAL did not have the capacity to
deliver the flats and 22,000 homebuyers
were suffering due to delays of more
than four years.
An audit report of JIL’s financials
show that it may have diverted more
than `10,000 crore to other businesses.
The Court noted that this cast serious
doubts on JIL’s credentials. Actually, the
Court had given enough time to JAL to
come clean. It had asked it to deposit
`2,000 crore by September 11, 2017, to
protect the interests of the homebuyers.
But, it had only deposited `750 crore.
J
AL has defaulted more than 30
banks to the tune of `30,000
crore. It has defaulted on fixed
deposits, foreign currency, convertible
bonds and payments to Noida Authority.
The Supreme Court bench permitted
the Reserve Bank of India to direct
banks to take JAL to bankruptcy courts.
This can be done under the Insolvency
and Bankruptcy Ordinance, 2018.
Arvind Jain, president of Developers
Township Property Owners Welfare
Society, told India Legal: “The sale of
personal properties is limited to Am-
rapali where diversion of funds was
detected. As far as Jaypee is concerned,
the Interim Resolution Professional
(IRP) has 270 days to reach a resolu-
tion. The final bidder will be selected by
a Committee of Creditors which in-
cludes the homebuyers. It remains to be
seen how the 20,000 homebuyers will
agree on one bidder. Once IRP submits
its recommendations to NCLT, some
parties may contest that. Once NCLT
gives its decision, it can be challenged in
NCLAT and finally, in the Supreme
Court. As insolvency proceedings will
take time since they have to pass
through these three layers of justice, it
will be a long-drawn affair. Only after
all the legal decks are cleared can con-
struction begin after evaluating all the
work that needs to be done in each
tower. The resolution is not going to be
either easy or quick.”
Finally, the successful bidder may
CONCRETE MESS
The Amrapali Group’s
ugly, half-built buildings
are a sharp reminder of
the way homebuyers
have been duped
ManyskyscrapersinNoidaandGreater
Noidastandasugly,half-builtsentinels.
Theconcretestructuresareremindersof
numerousfly-by-nightrealestatecompa-
niesthathavecheatedthousands.
Anil Shakya

have to take some regulatory approvals
and do site assessment for work to be
done. This will take more time. Unless
each of these is done, construction of
the flats cannot resume.
JAL told the Court that it would dou-
ble the number of workers from 4,000
to 8,000 so that work could be speeded
up for delivery of houses. But the Court
was not fooled. It said that it only meant
that it was increasing the strength from
17 workers per tower to 35 workers. As
there were 228 towers to be built, 8,000
workers would just amount to two
workers on a floor of four flats. At this
rate, completion of 21,532 flats would
take years, the Court said.
S
anjay Sawhney had invested in a
Noida flat and had to wait for
years to get it. After he moved into
it, he found the towers and other infra-
structure were incomplete. “It is a tragic
story for thousands of homebuyers who
toiled all their life to own a house. Small
investors came into the business mas-
querading as builders, took money from
buyers in advance and then siphoned it
off to other projects. The reality today is
that builders have exhausted their
funds. Who will now risk giving them
money? Buyers will pay the remaining
instalments only after they get posses-
sion. We are caught in a vicious circle,”
he said.
Rajeev Talwar, chairman, National
Real Estate Development Council, told
India Legal: “The real estate crisis is
partially because of circumstances and
partially created by companies. Action
must be taken against rogue companies.
But putting developers in jail is not the
answer as that will not help buyers get
their homes. A realistic way would be to
assess how much money is required to
complete each pending project. An
assessment should be done one building
at a time and then a bank could be
assigned to finance the builder so that
the flats are completed. That is a realis-
tic way out.”
Meanwhile, the Supreme Court
upheld a National Green Tribunal order
imposing damages of `100 crore or 10
percent of the project cost, whichever is
higher, on Goel Ganga Developers India
Pvt Ltd for raising construction in viola-
tion of the environmental clearance
rules and regulations.
The bench, comprising Justices
Madan B Lokur and Deepak Gupta, also
upheld the fine imposed upon the Pune
Municipal Corporation and
the direction given to its
commissioner to take appro-
priate action against the
erring officials.
The Court observations in
these two cases will hopefully
make numerous real estate
companies sit up and work
towards completing their proj-
ects and delivery of houses.
The apex court granted six
months for the fine to be paid.
In case it wasn’t paid, all the
assets of Goel Ganga Develop-
ers India Pvt Ltd, as well as of
its directors, would be attached
and sold to recover the fine, it
said. The developers also stand
to lose their licence if the fine
is not paid and they will also
not be allowed to develop
any real estate project in future, the
Court warned.
Over 4,000 complaints regarding
flats are waiting to be heard in Noida
and Greater Noida. Though the Real
Estate Regulatory Authority (RERA)
has been operational in Uttar Pradesh
since April 2017, it got a full-time chair-
man only in early August this year.
Over 80 percent of the complaints
related to housing in the state came
from Noida and Ghaziabad as it has
seen an unprecedented boom in real
estate. Scores of flats are lying incom-
plete without a single worker in sight.
The state is planning to set up a sepa-
rate bench in Greater Noida soon to
hear the pending complaints. This has
been a longstanding demand of home-
buyers in Noida.
Both RERA and governments in
various states will have to ensure that
there are adequate strictures and regula-
tions to protect homebuyers. They
have no choice as the courts have
shown that they are not going to tolerate
delays anymore.
32 August 27, 2018
Property/ Courts’ Activism
“Itisatragicstoryforhome-
buyers.Smallinvestors
cameintothebusiness
masqueradingasbuilders
andsiphonedoffthemoney
tootherprojects.”
—SanjaySawhney,
homebuyerinNoida
“Thecrisisispartiallydueto
circumstancesandpartially
createdbycompanies.
Actionmustbetaken
againstroguecompanies.”
—RajeevTalwar,chairman,
NationalRealEstate
DevelopmentCouncil
“AsfarasJaypeeis
concerned,insolvency
proceedingswilltaketime.
Theresolutionisnotgoing
tobeeithereasyorquick.”
—ArvindJain,president,
DevelopersTownshipPrope-
rtyOwnersWelfareSociety

The hopes of Indonesia’s Siti Aisyah
(25) and Vietnam’s Doan Thi Huong
(29) are fading fast. Both hailing from
farming families in the rural heartlands of
their respective countries who migrated to
the city for jobs but ended up working as
escorts, the two women are accused of
smearing VX nerve agent on North Korean
leader Kim Jong-un's half-brother, Kim
Jong Nam’s face in an airport terminal in
Kuala Lumpur on February 13, 2017. Kim
died within two hours of the attack.
Aisyah and Huong had pleaded that
they were hoodwinked by the North
Koreans into thinking they were playing a
prank for a reality show and had hoped
that the court would take a lenient view.
However, Malaysian High Court Judge
Azmi Ariffin was not convinced by their
defence and held that enough evidence had
been presented in the six-month trial to
infer that they and four North Korean sus-
pects engaged in a “well-planned conspira-
cy” to kill Kim (above).
“I must therefore call upon them to
enter their defence,” the judge said after
reading his ruling for more than two
hours. Indonesian Ambassador Rusdi
Kirana said he was shocked by the decision
but his government will abide by it.
According to the case presented so far,
the four men, known to Aisyah and Huong
by code names, recruited and trained the
women and supplied the banned chemical
weapon they smeared on Kim's face.
Huong applied the agent on Kim's face,
clasping her hands onto his cheeks from
behind, while Aisyah was recorded by air-
port security cameras running away from
Kim. Both are seen rushing to separate
washrooms to purportedly decontaminate
their hands. When the agent took effect on
him, Kim at first made to go to the toilet to
wash it off. But then he changed his mind,
went to the reception and asked for help. It
arrived in a few minutes and he was taken
to hospital. But that split-second decision
cost him his life.
What’s eating baker Jack Phillips
(below)? For one, his Colorado-
based Masterpiece Cakeshop had
famously refused a gay wedding cake
order from partners Charlie Craig and
Dave Mullins and on June 4 even won
the Supreme Court case over it, after
alleging religious discrimination. And
now, the maverick baker has taken on
the wrath of self-styled social justice
warriors again, by refusing to make a
cake celebrating a “sex change”, known
these days as gender transition.
In June 2017, transgender lawyer
Autumn Scardina had asked
Masterpiece for a cake with a pink
interior and blue exterior to celebrate
the anniversary of her transitioning
from male to female. "The woman on
the phone told me they do not make
cakes celebrating gender changes,"
Scardina wrote in a complaint to
Colorado's Division of Civil Rights.
On June 28 of this year, Colorado
regulators said there was “sufficient
evidence” to support Scardina’s claim
of discrimination based on her trans-
gender status and ordered “compul-
sory mediation” for the two sides.
But Phillips has gone and sued
the governor of Colorado, alleging the
state's decision violates his First
Amendment rights to freely exercise
his religious beliefs. “That’s a cake I
can't create for anybody,” he says.
Briefs
—Compiled by Sucheta Dasgupta
Maverick baker starts
new Cakeshop case
Women and their hus-
bands could be enti-
tled to paid bereavement
leave following a miscarriage
or stillbirth in New Zealand.
Labour MP Ginny Andersen
(right) has moved a bill legis-
lating three days’ leave in
parliament. Currently, the
bereavement provisions of
the Holidays Act 2003 are
ambiguous in their applica-
tion to miscarriage.
Employees get bereavement
leave for a minimum of three
days for the loss of a spouse
or partner, parent, child, sib-
ling, grandparent, grand-
child and a spouse or part-
ner’s parent.
Workers are entitled to
bereavement leave every 12
months as long as they meet
the criteria. But Andersen
said: “The lack of clarity has
meant some women have
been in the position of hav-
ing to argue with their
employer about whether they
are entitled to leave because
they have lost their unborn
child. A lot of women have
had more than one miscar-
riage and it can be very trau-
matic and difficult.”
No relief for
Kim Jong Nam
smearers
New Zealand mulls leave for miscarriage

India Legal 27 August 2018

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India Legal 27 August 2018