India legal 27 February 2017

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I
Judge
intheDockAs the March 10 deadline for Justice Karnan’s response
to contempt notice nears, the larger issue of disciplining
judges assumes a national dimension
Vyapam ruling: Who
were the real culprits?
Tamil Nadu: Governor’s
dubious dabbling

| INDIA LEGAL | February 27, 2017 3
T is ironical that in today’s world, which
has been shaped by waves upon waves of
human migrations over the millennia,
“immigration” and “migrants” have become
dirty words in the minds of millions of peo-
ple across the globe. Thanks to the refugee crises
stemming from conflicts in the Arab world and
parts of Africa, outsiders pouring into different
countries are considered a dangerous, polluting
sub-human species unworthy of The Rights of
Man which civilised democracies have held to be
universal and valid at all times.
In characterising immigrants as a scourge,
Trumpism in America and the alt-right in Euro-
pe have made the world forget that the act of
migrating across borders as well as the interests
of migrants—whether documented aliens or not
—is actually governed by domestic statutes and
international conventions under the rule of law.
This is only a natural corollary to the march
of human civilisation which has been shaped
culturally, linguistically, socially and ethnically by
migrants who made their way to distant lands
due to climate changes, pestilence, war, conquest,
epidemics, persecution, forced deportations, eth-
nic cleansing, economic hardship, political parti-
tions, and the compulsions of technology.
In ruling against President Trump’s immigra-
tion ban, the US system of justice simply reasser-
ted the principle that in a democracy guided by
the rule of law, the Rights of Man cannot be
arbitrarily abolished by executive fiat. Due
process, in this case drawing its strength
from international agreements as well as
state laws and individual liberties, can-
not be sacrificed at the altar of some con-
jured up emergency.
Above all, the laws and conventions on refu-
gees and immigrants are also based on humani-
tarian principles founded on historical experi-
ence. For example, had the Jews not kept perpet-
ually migrating starting with their expulsion by
the Babylonians and Assyrians, and then the
Romans and czars and Nazis, they would proba-
bly be extinct today. So would the Gypsies.
Actually, immigration is the true face of
globalisation. Hence, world covenants such as
UNESCO’s International Convention on the
Protection of the Rights of All Migrant Workers
and Members of Their Families which came into
force in July 2003. Its primary objective is to
protect migrant workers and their families, a
particularly vulnerable population, from exploi-
tation and the violation of their human rights.
The Convention does not propose new human
rights for migrant workers. Part III of the Con-
vention “is a reiteration of the basic rights which
are enshrined in the Universal Declaration of
Human Rights and elaborated in the interna-
tional human rights treaties adopted by most
nations”.
So why are those rights subject to another
International Legal Instrument?
“T
he Convention seeks to draw the
attention of the international commu-
nity to the dehumanization of migrant
workers and members of their families, many of
whom being deprived of their basic human
rights. Indeed, legislation implementing other
basic treaties in some States utilizes terminology
covering citizens and/or residents, de jura
excluding many migrants, especially those in
irregular situations.”
Excerpts:
Basic freedoms
Applying these fundamental rights to migrant
workers and members of their families, the
Convention provides for their right to leave and
enter the State of origin (Art. I). The inhumane
living and working conditions and physical (and
sexual) abuse that many migrant workers must
endure are covered by the reaffirmation of their
“right to life” (Art. 9) and prohibition against
cruel, inhuman or degrading treatment of pun-
ishment (Art. 10) as well as slavery or servitude
and forced or compulsory labour (Art. 11).
I
IMMIGRANTS HAVE RIGHTS
Inderjit Badhwar
Letter From The Editor

4 February 27, 2017
Letter From The Editor
Migrant workers are also entitled to basic free-
doms like the freedom of thought, conscience
and religion (Art. 12), and the right to hold and
express opinions (Art. 13). Their property should
not be confiscated arbitrarily (Art. 15).
Due process
The Convention then goes on to explain in detail
the need to ensure due process for migrant work-
ers and members of their families (Art. 16 - 20).
Investigations, arrests and detentions are to be
carried out in accordance with established proce-
dures. Their right to equality with nationals of
the State before the courts and tribunals must be
respected. They must be provided with necessary
legal assistance, interpreters and information in
a language understood by them. When imposing
a sentence, humanitarian considerations regard-
ing the person's migrant status should be taken
into account. The arbitrary expulsion of migrant
workers is prohibited (Art. 22).
Most importantly, migrant workers are to be
treated “as equal to the nationals of the host
country in respect of remuneration and condi-
tions of work [overtime, hours of work, weekly
rest, holidays with pay, safety, health, termina-
tion of work contract, minimum age, restrictions
on home work, etc. (Art. 25)]. Equality with
nationals extends also to social security benefits
(Art. 27) and emergency medical care (Art. 28).
While enumerating this bundle of rights, the
Convention recognises that “the human problems
involved in migration are even more serious in
the case of irregular migration” and the need to
encourage appropriate action “to prevent and
eliminate clandestine movements and trafficking
in migrant workers, while at the same time
assuring the protection of their fundamental
rights” (Preamble).
As measures for preventing and eliminating
illegal labour migration, the Convention propos-
es that the States concerned should collaborate
in taking appropriate actions against the dissem-
ination of misleading information relating to
emigration and immigration, to detect and eradi-
cate illegal or clandestine movements of migrant
workers and impose sanctions on those who are
responsible for organising and operating such
movements as well as employers of illegal
migrant workers (Art. 68). However, the funda-
mental rights of undocumented migrant workers
are protected by the Convention (Art. 8 - 35).
In this context it is worth studying India’s
Law Commission’s 175th report (2000). It was in
response to former Home Minister LK Advani’s
Themarchofhumancivilisationhasbeenshaped
culturally,linguistically,sociallyandethnicallyby
migrantswhomadetheirwaytodistantlandsdueto
climatechanges,pestilence,war,conquest....
UNCERTAIN
FUTURE
Afghan refugees
arrive at the Greek
island of Kos on an
overcrowded dinghy
Photos: UNI
concerns of millions of immigrants streaming
into India across its eastern borders. It was, and
still remains, a far more serious situation—a har-
binger of communal violence, overcrowding,
criminal activities and local job losses—than the
entry of immigrants from Syria and Somalia into
the US or Europe.
T
he Law Commission’s lengthy recommen-
dations were calibrated and grounded
solidly in international commitments as
well as India’s own Constitutional principles. It is
a lengthy report, a far cry from Trump’s ban-‘em-
‘n-lock-‘em-up-n’throw-‘em-out approach.
The Commission chose the option of recom-
mending incorporation of new provisions in the
existing Foreigners Act as to make it effective
enough to meet the main problem of illegal
immigration, without interfering with the exist-
ing legal frame-work.
“The Commission is of the view that the prob-
lem of illegal migration from neighboring coun-
tries has to be tackled seriously by providing a
machinery for effective and speedy detection of
illegal entrants. The function of determining
whether a person is an illegal entrant or not is
proposed to be entrusted to the Immigration
Officers whose orders shall be appealable, to be
heard and decided by an Immigration Tribunal,
manned by a person who has been a District
Judge or an Additional District Judge.
“The matters shall be decided by them
according to the principles of natural justice.
Besides, facilitation centers are also proposed to
be provided for detaining the foreigners pending
the determination of their status, and pending
their deportation. So far as the offences under
the Act are concerned, they are proposed to be
tried by the Immigration Court which would be a
court of District & Sessions Judge to be speciﬁed
by the appropriate government in each district.”
The problem of legal and illegal immigration
into India, especially West Bengal, and Assam,
continues unabated. It is a politically volatile
issue. But in tackling it, given the human dimen-
sions of the problem, the government has chosen
the wiser course of toughness, tempered by legal
due process.
editor@indialegalonline.com
Theproblemoflegaland
illegalimmigrationinto
India,especiallyWest
Bengal,andAssam,
continuesunabated.In
tacklingit,giventhehuman
dimensionsoftheproblem,
thegovernmenthaschosen
thewisercourseof
toughness,temperedby
legaldueprocess.
HUMAN MARCH
(Top) Rohingya
migrant women in
Indonesia
(Above) Activists of
the All Assam
Students’ Union
stage a
demonstration
against illegal
Bangladeshi
migrants in
Guwahati

Contents
Karnan’s Latest Caper
The seven-judge SC bench hearing against the Calcutta High Court justice will be
a protracted one, punctuated by several ethical issues
16
LEAD
VOLUME. X ISSUE. 15
FEBRUARY27,2017
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6 February 27, 2017
Point of No Return?
Already embroiled in controversies, the judge’s open defiance of the Supreme
Court summons will go against him
20
Governor Reluctant
Sasikala nominee E Palanisamy finally gets the call to step in
as Tamil Nadu CM
23
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Ringside............................8
Dilli Durbar........................9
Courts.............................10
Briefs...............................14
Media Watch ..................49
Satire ..............................50
Cover Illustration & Design:
ANTHONY LAWRENCE
Stumbling Blocks
The parliamentary standing committee points out loopholes in
the memorandum pertaining to judges’ appointments
30
GST’s Fatal Flaw
The decision to cross-empower states to collect IGST may run
into trouble as the power to collect it rests only with the centre
ECONOMY
32
Blame It on the Chair
While shifting the responsibility of declaring a Bill a Money Bill to outwit
the opposition, the government has put the Speaker in a tight spot
MYSPACE
38
Congress’
Herald Shame
The newspaper could embarrass the
party over allocation of prime land in
Panchkula in record time by the
Hooda government
CONTROVERSY
47
STATES
No Closure in Vyapam
The Supreme Court has cancelled the degrees of 634 doctors connected to
the scam but the real culprits remain unidentified
40
Damages Ahoy!
After 38 years, the Supreme Court
directed a compensation of `60 lakh
each for the Narmada oustees. Both
the Gujarat and Madhya Pradesh
governments have welcomed it
44
Is It a House for Aam Aadmi?
The Union budget’s new affordable housing initiative is overrated and does not
have the legal teeth to stop builders from exploiting it
34
SPOTLIGHT
Ancestral Burden
Thousands of Muslims could lose property inherited from those
who moved to Pakistan under the enemy property ordinance
LEGALEYE
28
Lessons from Tamil Nadu
The DA case verdict is an indictment of the nexus between
politicians, civil servants, cops as well as the judicial system
25

8 February 27, 2017
“
RINGSIDE
Don’t demonise Trump,
analyse Trump…. India
may not be part of the
problem but India will
be affected by Trump’s
policies.
—Foreign secretary
S Jaishankar, at the
Gateway of India
Geonomic Dialogue in
Mumbai
In a bid to remain in power, Akhilesh has
joined hands with the party that tried to kill
his father. Akhilesh doesn't realise Congress's
cunning; Mulayam knew it well. I want to
tell Akhilesh that he should have remembered
this before sitting in the lap of the Congress.
—Prime Minister Narendra Modi, at a rally in
Kannauj, Uttar Pradesh
No force can separate
me from my party….
No matter where I am,
I will always think of
the party…. They can
only imprison me but
not my love for you and
the party.
—AIADMK general
secretary VK Sasikala,
addressing party MLAs
at the Golden Bay Resort
outside Chennai before
her arrest, on Jaya TV
Hindu population is
reducing in India
because Hindus never
convert people.
Minorities in India are
flourishing unlike some
countries around.
—Minister of State for
Home Kiren Rijiju,
reacting to Congress
allegations that the BJP
is converting Arunachal
as Hindu State, on
Twitter
We all have heard stories
about Don Bradman, the
records that he has and
how well he used to bat.
But when people say that
‘Had the Don played in
this era, he would have
been very much like
Virat,’ one can very well
imagine how great Don
would have been.
—Former Indian skipper
Kapil Dev, speaking to
India Today
In my biopic, if ever it’s
made, you will play that
stereotypical Bollywood
biggie, who is... very
snooty... and completely
intolerant to outsiders
and flag-bearer of nepo-
tism...the movie mafia....
—Bollywood actress
Kangana Ranaut,
speaking to Karan Jauhar
on Koffee with Karan
We live in a glass
house, which is good
for transparency. But
don’t stare at us for
too long. It distracts
and defocuses. We
need to get on with
our job.
—Infosys Chairman
R Seshasayee, on the
controversy regarding
a severance payment of
`17.4 crore to ex-CEO
Rajiv Bansal, in The
Times of India
Delhi
DurbarAn inside track on
happenings in Lutyen’s Delhi
The buzz in the finance ministry is all
about P Chidambaram’s new book
Fearless in the Opposition: Power and
Accountability. It is not the contents—a
collection of columns that have
appeared in The Indian Express—that
have raised eyebrows but the introduc-
tion penned by former RBI governor
Raghuram Rajan. In it he has lavished
praise for the meticulous research and
understanding that Chidambaram
brings to his writings. Sample this:
“Having seen Mr Chidambaram at
work when I was the Chief Economic
Adviser (CEA) at the Finance Ministry, I
can attest to the care with which he
made decisions. After leaving office, I
understand Mr Chidambaram follows
the same procedure while writing…
The nation benefitted from his careful
decision making while he was in office
and benefits today from these pieces
while he is in the Opposition.” Many
see the former RBI governor’s introduc-
tion as his approval of Chidambaram’s
analytical essays, which includes a
section devoted to demonetisation.
The former finance minister has been a
scathing critic of notebandi and many
of the facts and figures he has quoted
seems to be based on inside informa-
tion. Many believe that Rajan’s glowing
introduction is a veritable confirmation
of this.
Cabinet Ministers are feeling like
truant schoolboys these days with
a steady stream of instructions and
messages from the PMO regarding
performance and related matters.
His latest is the one asking minis-
ters to provide details of all tours
they have undertaken in the last
three months to promote initiatives
of government, particularly demon-
etisation. The exercise is aimed at
knowing if they were balancing their
own ministerial duties with the larg-
er initiatives by the government
and, in particular, if they were com-
bining any personal visits to their
home towns. A few days earlier,
they were all asked to refrain from
attending weddings and similar
social events, seen by the Prime
Minister as a waste of time. Another
note asked them to keep their pre-
sentations short during cabinet
meetings. We have heard of heli-
copter parenting but Helicopter PM
is a new one.
— Illustrations: UdayShankar
LAVISH PRAISE
MODI’S EAGLE EYE
Believe it or not but no
lesser mortal than Amar
Singh (the former Mr
Controversy and the
original Page 3 politi-
cian) is finding it dif-
ficult to stay in the
news. After his
ouster from the
Samajwadi Party, fol-
lowing his spat with
Akhilesh Yadav, Singh
finds himself out in the
cold. His cronies are
doing the rounds of
Lutyen’s Delhi with the
“hot news” that their
boss will be releasing
tapes which they prom-
ise will be “a bigger
bombshell than Radia
and bigger than any
earthquake that Rahul
Gandhi or Narendra
Modi have felt.” A few
TV journalists were ini-
tially interested but the
Singh camp has so far
offered nothing. Almost
a decade ago some
phone tapes, allegedly
leaked by Singh’s men,
were anonymously sent
to select journalists but
yielded no stories. “Wait
and watch. This time
there will be a TNT
explosion,” one is
promised.
O IS ZERO
Nothing unites
opposition and
ruling party leaders
in the national capi-
tal as a good joke.
This one comes
from Tamil Nadu
where supporters
of Sasikala were
spreading this line:
What does the ‘O’
in O Paneerselvam
stand for? Zero (0)
if you count the
seven MLAs who
support him! The
tables, of course,
have turned, and
Sasikala loyalist
Edappadi K
Palanisamy has
taken oath as CM.
AMAR’S
ARMOURY

10 February 27, 2017
The apex court halted all future
hearings in the Madras High
court against Justice KSP
Radhakrishnan, a former judge
of the Supreme Court. The
Madurai bench of the High Court
had issued notice to him in
January, on a PIL filed by agri-
culturist S Chakrapani. The peti-
tioner alleged that it was ethical-
ly wrong on the part of Justice
Radhakrishnan to accept an
award from PETA. Incidentally,
Justice Radhakrishnan was part
of the apex court bench which
had delivered the Jallikattu ban
ruling in May 2014. The petition-
ers pleading for the ban included
PETA, among others.
Chakrapani had pleaded in
High Court that Justice
Radhakrishnan had violated the
constitution by accepting the
award in 2015 and wanted the
Court to order the former judge
to give back the award to PETA.
Radhakrishnan approached
the top court citing Judges
Protection Act, 1985 which
grants legal immunity to a judge
against any action taken or
words spoken by him in the
capacity of a judge.
The apex court also issued
notice to Chakrapani.
Proceedings
stayed against
former SC judge
The Supreme Court clarified that
people may choose not to stand
up in cinema halls if a film, documen-
tary or a newsreel showed the nation-
al anthem. The apex court had last
November made it mandatory for all
cinema halls to screen the anthem
before a film commenced and people,
except the differently-abled, were
asked to stand up and show respect.
The issue came up before the
court after immense confusion fol-
lowed in the light of its earlier order
and there were numerous incidents of
people being insulted and attacked
when they did not stand up while the
national anthem was shown in a film.
Lately, many people were assaulted
when they did not stand when the
national anthem was shown in the
Aamir-Khan starrer Dangal.
The Court also ruled that people
could avoid singing along with the
national anthem played in cinema
halls. It also stated that cinema halls,
however, must continue to play the
anthem as per its interim orders. The
next hearing is on April 18.
National anthem
during screenings
The AAP government’s order
according “primary” impor-
tance to the “neighbourhood”
factor for admissions to private
schools in Delhi was struck
down by the Delhi High Court.
The Court observed that
the order issued by the
Directorate of Education (DoE)
for the academic year 2017-18
was unfair to parents and chil-
dren staying far from a school
of their choice. In its interim
order, the top court ruled that
the order was “restrictive and
unreasonable”.
Around 300 schools that had
come up on DDA-alloted land were
affected by the order. This aspect was
criticised by the Court, which wanted
to know why around 1,400 schools
had not been covered by the order.
The Court also observed that the
order left a huge room for manipula-
tion and abuse by parents. This vital
aspect was not considered by the
DoE order, it pointed out.
The Court cited Section 12 (1)(c)
of the Right to Education Act to
negate the government’s contention
that the neighbourhood criterion was
as per the Right to Education Act.
Delhi HC raps AAP govt
on school admissions
Courts
Those cured of mental illness at hospitals
in India must be rendered all help to set-
tle down in normal life again, the apex
court observed. It also pointed out that the
centre should come up with a comprehen-
sive policy, applicable in all parts of India,
in this regard, if it did not have one.
While issuing a notice to the Union
health ministry, the Court reminded the
centre that welfare of the mentally-chal-
lenged was a matter that fell in the
Concurrent List. Therefore, the Centre had
all the power to evolve norms, it observed.
While hearing a petition that prayed that
people cured of mental illness be rehabili-
tated, the Court directed the centre and the
states to help in this task.
Needapolicyforthe
mentallyill
The issue of cattle smuggling came up
before the apex court recently through
a PIL filed by Akhil Bharat Krishi Goseva
Sangh. The organisation brought to the
court's notice unchecked smuggling of
cattle through the porous Indo-Bangladesh
border. It pointed out that despite the cen-
tre apprising the states about the menace,
measures taken were insufficient consider-
ing the seriousness of the issue.
The centre apprised the court that draft
recommendations had already been sub-
mitted by the committee constituted for the
purpose. However, West Bengal wanted
some more time to study the recommen-
dations, it said. Other states were also
involved and more discussions were
required, it pleaded.
The apex court will hear the matter on
April 3.
Themenaceofcattle
smuggling
The Chief Justice of India (CJI) JS
Khehar wasted no opportunity to
award huge fines to two petitioners in
separate cases after finding them friv-
olous. The men earning the wrath of
the CJI-headed bench were an RJD
MLA Ravindra Singh and a retired pro-
fessor from Maharashtra. While
Singh’s petition was a defamation suit
questioning the authenticity of
news reports published in a ver-
nacular magazine in 1994, the
teacher’s plea raised objection to
a Gujarat government order
linked to quota. Singh was fined
`10 lakh and the teacher was
asked to cough up `1 lakh.
The CJI was focussed on the
apex court’s new motto to
“weed out frivolous litigation”. He was
outraged by these petitions eating
away precious time of the top court
which was saddled with a backlog of
more than 60,000 cases.
In Singh’s case, the Court did not
approve his decision to file a plea in
the Patna High Court in 2015 and then
rush to the SC when the High Court
dismissal order was amply clear. A
request by the MLA to reduce the fine
amount was dismissed. The professor
was allowed to withdraw the plea but
was asked to pay the fine.
CJI Khehar
dismisses two
frivolous litigations
The apex court ruled that criminal-
turned-politician and Rashtriya
Janata Dal leader Mohammad
Shahabuddin be moved within a week
to Tihar Central Jail in Delhi from a jail
in Siwan district of Bihar. The bench
also ordered that further trial against
him in Bihar courts be conducted
through video conferencing from Tihar
jail and no special treatment be meted
to him in Delhi. Observing that free
and fair trial must be facilitated and
ensured, the bench also observed that
Shahabuddin was being tried in more
than 40 cases. One of the cases
includes the murder of a journalist,
Rajdev Ranjan, working with
Hindustan, in May 2016 in Siwan.
The Court was reacting to two
petitions pleading that fair trial was not
possible if Shahabuddin stayed in
Bihar as witnesses would fear to
depose against him. One petition was
filed by the widow of Rajdev Ranjan
while the other was by Chandrakesh-
war Prasad, whose sons were killed
allegedly at the behest of Shahabud-
din. The court struck down the argu-
ment that his fundamental rights were
violated by the verdict.
Shahabuddin
shifted to Tihar jail

The power tussle between the Delhi
government and the Lieutenant
Governor (LG) of Delhi on who is the
boss of the capital remained unresolved.
The Supreme Court after hearing the
matter for more than a week referred all
related pleas to a constitution bench. The
matter had come up before the top court
after the Delhi government had chal-
lenged the Delhi High Court order of
August 2016, which had ruled in favour
of the LG. The High Court had ruled that
the LG was the “administrative head” for
all purposes and all decisions of the state
government must get his sanction. But
the AAP government had challenged the
verdict in the top court
Incidentally, the centre itself wanted
the matter to be adjudicated by a larger
bench as Article 239AA needed to be
interpreted properly.
The top court observed that crucial
aspects of law and constitution linked to
the issue needed to be looked into and
only a constitution bench was fit enough
to tackle the matter. It further ruled that
AAP and centre should argue afresh
before the bench.
When the centre and Delhi govern-
ment contended that governance of Delhi
will be hit if the dispute lingered, the
Court ruled that both could approach the
chief justice of India for an early hearing.
Constitution bench to
take up AAP-LG issue
The centre was asked by the
Supreme Court to adopt a
favourable approach towards com-
munity radio service operators and
private FM stations as far as broad-
casting news and current affairs pro-
grammes was concerned. The bench
dealing with the matter, however,
observed that allowing them to inde-
pendently air news programmes may
not be possible, but contents of
newspapers and TV channels could
be picked up.
The centre cited the possible
breach of national security and public
order as the reason for denying the
permission. It argued that these radio
stations run by private operators
could be misused. Moreover, there
was no system in place to monitor
their content, it pleaded. It apprised
the court that norms had been
evolved for community radios to air
news taken directly from AIR.
The Court was dealing with a
petition from NGO Common Cause
which pleaded that the centre’s deci-
sion to deny community radios and
private FM stations the permission
was unconstitutional and violated the
right to freedom of speech and
expression. Refusing to accept the
centre’s argument that the content
could not be monitored, the counsel
for the NGO wondered how licences
were given to private radio stations.
Allow private FM
stations to air news
Courts
The apex court was asked to
take a call on whether the
Lok Sabha Speaker was correct
in authorising the changed
Aadhaar law as a Money Bill in
the Lok Sabha. The plea was
filed by Congress leader Jairam
Ramesh. The Court, however,
was “tentatively not convinced”
and asked Ramesh’s counsel to
take into account points raised
by the centre and gave four weeks’ time
to frame the case properly. It felt the mat-
ter was “important and serious”.
The centre reiterated that all proce-
dural norms were adhered to as per the
constitution. It further argued that the
Lok Sabha Speaker’s decision was
above judicial scrutiny but the Court
begged to disagree.
Ramesh’s counsel contended that the
bill was classified as a Money Bill so that
it could not come under the scanner of
the Rajya Sabha. The upper house has
no power over a Money Bill.
The Aadhaar (Targeted Delivery of
Financial & Other Subsidies, Benefits &
Services) Bill, 2016 was passed in the
Lok Sabha in March 2016. However, the
Rajya Sabha later made several changes
and sent it back to the Lok Sabha. But it
bypassed the changes and passed it.
See analysis on page 46 of this issue.
Controversy over
Aadhaar Bill
The five new appointees to the
Supreme Court Bench were
administered their oaths at 10.30 am
on February 17 by the Chief Justice
of India JS Khehar. The new
appointees are Justices Deepak
Gupta, SA Nazeer, Mohan
Shantanagoudar, SK Kaul and Navin
Sinha. They are promoted chief jus-
tices from Chhattisgarh, Karnataka,
Kerala, Madras and Rajasthan High
Courts respectively.
Proceedings at the court started
at 11.15 am, instead of the sched-
uled 10.30 am and the five judges
immediately took up positions in
five courts. They were seen in action
in courts 1, 2, 3, 4 and 5, and were
appended to cases that were already
in process.
The addition of these five judges
boosts the bench strength of the
apex court to 28, which is still three
short of the sanctioned strength of
31. Two more recommendations are
expected.
The apex court, as also other
court across the country, is burdened
with huge pendency and only with
the coming in of Justice Khehar as
CJI has the pathway opened up again
for the induction of new judges.
Recently, nine judges were appointed
full-time chief justices of different
high courts of the country.
Some of those courts were func-
tioning under acting chief justices for
a long time.
Those nine appointments sig-
nalled a clearance of the logjam that
existed between the judiciary and the
executive, which had stalled appoint-
ment of fresh judges, as well as reg-
ular promotions.
— Compiled by Prabir Biswas; Illustrations: UdayShankar
The Supreme Court has asked Google
India, Yahoo! India and Microsoft to
set up an “in-house expert body”each,
which will delete all words which could
point to sex determination at the level of
pre-natal diagnostics leading to female
foeticide, impacting the sex ratio. It
directed that the search engines
“become responsive to the India law.”
Justices Dipak Mishra and
R Bhanumathi issued the order in the
course of the hearings in the petition
filed by Sabu Mathew George, a med-
ical practitioner in the field of public
health and nutrition in 2008.
While posting the case to April 17
for further hearing, the judges said that
the search engines “shall appoint their
“in-house expert body” which shall take
steps to see that if any words or any
key words that can be shown in the
internet which has the potentiality to go
counter to Section 22 of the 1994 Act
should be deleted forthwith.”
The reference was to Pre-Natal
Diagnostic Techniques (Prohibition of
Sex Selection) Act, 1994.
The court took note of the submis-
sion of the counsel for petitioner,
Sanjay Parikh, that despite the court’s
earlier order about auto-blocking “the
literature and write-ups that would help
people to go for a male child which ulti-
mately leads to reduction of sex ratio, is
still being shown on certain web sites.”
The counsel for the search engines
said that they will “verify” this.
The order mentioned, “…it is can-
vassed by Mr (KV) Viswanathan (one
of the counsel for the search engines)
with immense vehemence that it does
not come within the proposed list of
words that find mention in the order
dated 19th September, 2016, and,
therefore, it cannot be construed as
a violation.”
Be that as it may, the court said that
the petitioner and others may approach
the nodal agency set up by the Govern-
ment which should look into the issue
and “intimate” the search engines.
It said: “That apart, the “in-house
expert body” that is directed to be con-
stituted, shall on its own understanding
delete anything that violates the letter
and spirit of language of Section 22 of
1994 Act and, in case there is any
doubt, they can enter into a communi-
cation with the Nodal Agency appoin-
ted by the Union of India and, there-
after, they will be guided by the sugges-
tion of the Nodal Agency of the Union
of India.”
5 new SC
judges
take oath
Justice Deepak Gupta
Justice Mohan
Shantanagoudar
Justice Navin Sinha
Justice SA Nazeer
Justice SK Kaul
SC asks search engines
to set up “in-house
expert body”

Briefs
In Tamil Nadu, the legal
fraternity has closed its
ranks to demand elevation of
Justice N Paul
Vasanthakumar (left) to the
apex court. Ardent admirers
of the Chief Justice of
Jammu and Kashmir High
Court point out how he had
disposed of more than one
lakh cases, of which over
2,500 were reported in
reputed law journals. Apart
from seniority, he is credited
with integrity and command
over all genres of law. Top
lawyers have started finalis-
ing representations, signa-
ture campaigns and meet-
ings since the Supreme
Court collegium has not yet
recommended the senior
most Tamil Nadu judge for
appointment as an SC judge,
even though he is just weeks
away from his superannua-
tion (slated for March 15).
“The chartered Madras
High Court has only one
judge in Justice R
Banumathi. The court
traditionally has had at least
two judges representing
Tamil Nadu,” Madras High
Court Advocates Association
(MHAA) said.
Relatives of former chief justice of
India KG Balakrishnan may
land in trouble as an income tax
assessment report has revealed
that his daughters and sons-in-law
had not disclosed crores of
rupees discovered during the assess-
ment of their assets. The report was
presented to the SC while the apex
court was hearing a PIL seeking an
SIT probe against Balakrishnan’s
family members alleging that they
had purchased properties worth
crores of rupees during his tenure at
the SC. The report carries the assess-
ment of incomes of Balakrishnan’s
relatives from financial years 2005-
06 to 2012-13. The report has
nothing
against
the former
CJI but
mentions
that his fam-
ily members
had under-
valued their
assets.
An NRI couple from
London allegedly got their
adopted son, Gopal Sejani,
murdered to claim
life insurance worth
`1.3 crore. The Gujarat
Police said the couple
Kanwaljitsinh Raizada and
Aarti Loknath Dhar had
planned the murder two
years ago, along with one
Nitish Mund. The couple
had notarized an adoption deed in
July 2015 and purchased the
insurance in August. “But Sejan’s
passport could not be made since the
adoption procedures had not been
followed,” Junagadh
Superintendent of Police
Nilesh Jajadia told
The India Express. Sejani
lived with his sister and
brother-in- law, Harsukh
Patel, in Maliya after his
father died and mother
remarried.
Trouble for ex-CJI kin
KVIC slaps legal
notice to Fabindia
Multi-city apparel and home fur-
nishing store Fabindia has
been served a legal notice by the
Khadi and Village Industries
Commission (KVIC) for selling its
readymade garments as khadi prod-
ucts without approval. The notice
sent to Fabindia says that the com-
pany had been warned and contin-
ued to break rules despite its assur-
ances not to do so. It also said that
the price tags on the garments sold
by Fabindia have “Khadi” printed on
them, which is an illegal act and
amounts to indulging in unfair trade
practice. Fabindia said that it has
received the notice and has called
for a meeting with KVIC officials to
understand and resolve the issue.
Centre tells CBI to
prosecute Kumar
The centre has sanctioned the
Central Bureau of Investigation to
prosecute Rajendra Kumar, former
principal secretary to Delhi CM
Arvind Kejriwal in a corruption case.
It has rejected Kumar’s application
for voluntary retirement. The inves-
tigative agency had earlier
filed a chargesheet against
Kumar in a case relating to criminal
conspiracy to cause loss of `12
crore to the Delhi government in
award of contracts between 2007
and 2015. Kumar has pleaded inno-
cent and claimed that he was pres-
surised to implicate Kejriwal but the
CBI insisted that it was acting
on the basis of strong evidence.
Murdered for insurance
Lawyersrootfor
JusticeVasanthakumar
Michael Flynn (below), the US
national security adviser
resigned after a slew of intelligence
leaks over the past month claimed
that he had secretly discussed
sanctions with Sergei Kisilyak, the
Russian ambassador to
Washington and then tried to
deny the conversations. Even
though it is being said that Flynn
“crossed no lines,” White House
Counsellor Kellyanne Conway said
that “it was misleading the vice-
president that made the situation
unsustainable.” In his resignation
letter, Flynn wrote “the fast pace
of events” during the presidential
transition meant that he had
“inadvertently briefed the vice-
president elect and others with
incomplete information regarding
my phone calls with the Russian
ambassador.”
In September 2015, after German
carmaker Volkswagen admitted
behind closed doors to the US
Environmental Protection Agency
that it had installed cheating soft-
ware in around 11 million of its
diesel vehicles worldwide, the infor-
mation went public. This week, a
federal judge in San Francisco has
approved a preliminary $1.2 billion
(1.13 billion Euros) buy-back or
repair plan. The landmark compen-
sation deal will see Volkswagen
compensate the owners of around
78,000 diesel vehicles
caught up in the com-
pany’s cheating
scandal. The deal
also covers Audi
and Porsche,
other Volkswagen
brands.
Kim Jong-nam (below), the
estranged half-brother of North
Korean leader Kim Jong-un, was
assassinated in Kuala Lumpur air-
port while on his way back to Macau
from Malaysia. South Korean intel-
ligence services said they believed he
was attacked by two North Korean
female agents with “poisoned nee-
dles.” Malaysian Prime Minister
Najib Razak has ordered a thorough
investigation into the apparent
assassination. At one point Kim
Jong-nam was considered heir-
apparent to his father, Kim Jong Il.
However, his prospects were dashed
after an incident in which he was
arrested attempting to visit
Disneyland in Tokyo on a false
passport.
—Compiled by Karan Kaushik and Shailaja Paramathma
Beginning 2017-18 academic
session, all Central Board of
Secondary Education (CBSE) affiliated
schools will have to follow the
National Council of Educational
Research and Training (NCERT)
curriculum. The decision was taken in
the presence of Human Resources
Development Minister Prakash
Javadekar. The move is expected
to standardise the curriculum
across schools in the country. The
decision has come following com-
plaints by parents about non-availabil-
ity of NCERT books and of schools
forcing them to buy books from
private publishers at escalated prices.
All CBSE shools to follow
NCERT curriculum
Board members of tech giant Info-
sys are raising questions about
the salaries paid to the company’s
CEO Vishal Sikka and other execu-
tives, according to reports. The letter
that questions why Sikka’s salary has
been increased, has been signed by
three of the company’s founders,
Narayana Murthy, Nandan Nilekani
and Kris Gopalakrishnan. The CEO
reportedly had a $7.3 million base
salary, benefits and bonus last year,
up from just $680,000 base salary
in 2015.
Infosys CEO’s salary
under question
North Korean leader
assassinated
Payback time
Leaks cost
Flynn his post

heard by a seven-judge bench of CJI
JS Khehar and Justices Dipak Misra,
Jasti Chelameswar, Ranjan Gogoi,
Madan B Lokur, PC Ghose and Kurian
Joseph. He was directed to hand over
all files relating to his judicial and
administrative functions to the court’s
Registrar General, and the constitution
Lead/ Justice Karnan/ Contempt Notice
EVENTEEN-ODD years
ago, the then Chief Justice
of India (CJI) AS Anand
had warned that the
erosion of credibility of
the judiciary in public
mind was the greatest threat to the
independence of the judiciary which
needed to guard against any “internal
latent danger”.
Since then, many cases involving
controversial conduct of judges of
different status have been disposed of
with mere expressions of lament and
worry on the state of the judiciary in
the country.
Now we have the case of Justice
Chinnaswamy Swaminathan Karnan,
which presents developments so far
unknown to either constitutional
experts or within the principles of judi-
cial order. This shows another of the
aberrations in the existing system of
selection of judges.
Justice Karnan is facing contempt of
court proceedings, and his case is being
bench’s unambiguous and stern order
hinted at the consequences in store for
the sitting judge of the high court.
Earlier, and realising that he had
hugely exceeded in his actions, Justice
Karnan had tried to pacify the apex
court judges by pretending that he was
mentally disturbed. This ploy failed.
A Judge too farTheseven-judgeSCbenchhearingagainstJusticeKarnanwillbelonganddifficult,
punctuatedbycasteissues
By Rakesh Bhatnagar
S
Justice CS Karnan, a sitting judge of
the Calcutta High Court, became the
first judge ever in India to be issued a
contempt notice by the Supreme Court.
On February 8, a seven-judge bench,
comprising senior-most judges of the
apex court, issued the notice against
Justice Karnan for writing letters
addressed to the Chief Justice of India
(CJI) and the Prime Minister with dis-
paraging comments about several sit-
ting and retired judges of the high
courts and the Supreme Court of India.
The apex court’s seven-judge bench
comprised CJI JS Khehar and Justices
Dipak Misra, J Chelameswar, Ranjan
Gogoi, Madan B Lokur, PC Ghose and
Kurian Joseph.
The decision of the Chief Justice of
constituting a high-powered seven-
judge bench must have been taken after
a lot of thought. As per Article 129 and
215 of the constitution of India, the
Supreme Court and every high court
shall be a court of record and shall have
all the powers of such a court, including
the power to punish for the contempt of
Trickylegalquestions
The Seven-judge SC bench needs to
find a constitutional a way to deal
with a HC judge
One must realise that the judiciary
is already struggling to retain its inde-
pendence from the influence of politi-
cal executive; hence such behaviour
from within the system can only weaken
the fabric.
Justice Karnan said he had issued an
“erroneous” order due to his “mental
frustration resulting in the loss of his
mental balance.” In a letter to Justices
Khehar and Banumathi, Justice Karnan
claimed he was “disturbed” due to vari-
ous incidents where he was “ridiculed”
by some judges, and that made him
frustrated. This order was about his
staying his own transfer to Calcutta
High Court on February 15, 2016.
Justice Karnan gave an undertaking,
which said: “Hereafter, I will still con-
tinue to foster a harmonious attitude to
one and all, and will appreciate your
kind reciprocation and oblige.”
Justice Karnan not only failed to
show up in front of the bench on
February 13, he dashed off a letter to the
Registrar General of the Supreme Court,
raising serious concerns about the
motive behind the contempt proceed-
ings against him. His letter, written on
his official letterhead of the Calcutta
High Court, said: “This said order does
not conform to logic, therefore is not
suitable for execution. The characteristic
of this order clearly shows the upper
caste judges are taking law into their
hands and misusing their judicial power
by operating the same against a SC/ST
Judge with mala fide intention of get-
ting rid of him. Therefore, the suo motu
contempt order dated 08.02.2017 is not
sustainable under law.”
He also stated that last year he had
attempted to file a case against CJI
Khehar under the SC/ST Act and
requested that the contempt case
against him be heard after the retire-
ment of Justice Khehar. This was a clear
affront. He challenged the composition
of the bench on the ground that it is
headed by CJI Khehar, who allegedly
had a personal grudge against him.
It is no surprise that Justice Karnan
invoked his caste (he is a Dalit), ignor-
ing the fact that he had been appointed
as a judge of a high court not on the
basis of his caste. No quota system exists
in the selection of judges to high courts
or the Supreme Court. That a parlia-
mentary committee on scheduled castes
and scheduled tribes has strongly rec-
ommended reservation for SC/ST in
this area is another matter.
USING THE CASTE CARD
In the past also, the-then judge of the
Supreme Court V Ramaswami had
invoked his caste (Dalit) when proceed-
ings for his removal or impeachment
started in Parliament. DMK leaders had
raised a hue and cry, saying the judge
had been victimised because he was a
Dalit. He couldn’t be impeached as
caste politics dominated the mind of
Congress. Of the 401 members present
in the Lok Sabha on the day of the vote
on impeachment, 196 voted for his
removal and 205 members of the ruling
Congress and its allies abstained.
The motion, which required no less
than a two-thirds majority of the total
number of members present in both
houses of the Parliament and an
itself. Article 16 of the Contempt of Courts
Act, 1971, states that a judge shall also
be liable for the contempt of his own
court or of any other court.
In Harish Chandra vs Ali Ahmed, 1987, it
has been clarified that since the expres-
sion “judge or judges” used in Article 14
of the Contempt of Courts Act, 1971,
refers only to the judge, so judges of the
Supreme Court and high courts are
excluded in the expression ‘judge’ used
in section 16. Hence this should be inter-
preted to include only a judge of the
subordinate court, not a judge of a high
court or the Supreme Court. So it was
never envisaged that a judge of a higher
court would be guilty of contempt of his
own court.
That is why the constitution of India
says that the Supreme Court and high
court judges can be removed by the Pre-
sident of India under Article 124 (4) of the
constitution on the ground of “proved
misbehavior and incapacity”. Article 217
(b) of the constitution of India provides for
appointment and conditions of the office
of a judge of a high court, where a Judge
may be removed from his office by the
president in the manner provided in Cla-
use ( 4 ) of Article 124 for the removal of
a Judge of the Supreme Court.
Article 124 of the Constitution of India
talks about the removal of a judge of the
Supreme Court; this clearly means that
there are no such provisions that are spe-
cifically pinned down in our constitution
for the removal of a high court sitting jud-
ge except as provided under Article 124.
The constitution of India is silent about
any other manner except under article
124 (4) to deal with the judges of higher
courts. Section 16(1) of Contempt of
Court Act also does not express clearly
the scope and ambit of the said act to
include high court judges as well.
It appears that the Supreme Court of
India has to find ways by interpreting the
constitution and Contempt of Court Act,
1971, to deal with the present issue.
By Shailendra Singh
TheMadrasHighCourt(facing
page)witnessedturmoilwhen,in
2015,JusticeKarnan(right)
accusedthethenChiefJustice
Kaulofharassinghimbecausehe
wasaDalit.

absolute majority of its total member-
ship, thus failed. Ramaswami later
resigned.
There was also the case of Karnataka
High Court Judge PD Dinakaran, who
was elevated as Chief Justice of Sikkim
High Court even when the litigation
relating to his amassing disproportion-
ate wealth and misuse of the office of
judge was going on in the Supreme
Court. He had also sought shelter of his
caste (Dalit) and mustered support from
certain caste-oriented political parties
such as the DMK and Bahujan Samaj
Party. Ahead of the motion for impeach-
ment was moved, he resigned.
AT LOGGERHEADS
Karnan has been at loggerheads with his
fellow judges since 2011 when he
accused them of discriminating against
him because he was Dalit. In 2015, he
accused the then Chief Justice of the
Madras High Court Justice Kaul of
harassing him because he was a Dalit,
and assigning him “insignificant and
dummy” cases for dispensation whereas
judges junior to him were given high
profile matters.
Then he accused CJ Kaul of corrup-
tion. When the Supreme Court trans-
ferred him in the same month of
February he assumed such powers
which were hitherto unknown to the
constitution and the principles of judi-
cial governance.
In a surprise move, he stayed the
order of his own transfer to the Calcutta
High Court. But, the Registrar General,
Madras High Court lost no time and
moved the Supreme Court against such
an order of stay by judge who had been
transferred to another court. The
Supreme Court rescued the situation
from turning into complete lawlessness
in the high court. A two-judge bench of
Justices Khehar and R Banumathi
scrapped his order and lifted the stay on
his transfer.
Determined to act as he pleases,
Justice Karnan still behaved like a judge
of the Madras High Court and directed
the Chennai police commissioner to reg-
ister a case against the two judges
(Khehar and Banumathi) under the
SC/ST (atrocities) Act. He finally agreed
to join the Calcutta High Court after a
closed-door meeting with then CJI TS
Thakur. What had transpired between
then CJI Thakur and Justice Karnan is
still not known.
Remaining silent for a year, he once
again cried foul. He raised the banner of
revolt by writing letters to Prime Minis-
ter Narendra Modi.
“I have given a recent allegation that
there were 20 corrupt judges in the
Madras High Court and the Hon’ble
Justice S Kishan Kaul is No. 1 accused....
It is observed that the 7 judges (who
comprise the Constitution bench) are all
out for a contempt case against me,
presumably to clear the path for Jus-
tice Mr. SK Kaul’s elevation (to the
Supreme Court).”
“The Suo Motu contempt order
against me a Dalit judge and restraining
my judicial and administrative assign-
ment is unethical and goes against the
SC/ST Atrocities Act. It is certainly a
national issue and a wise decision would
be to refer the issue to the House of
Parliament.”
Meanwhile, the wife of Justice S
Manikumar, a sitting Madras High
Court judge, has approached the Sup-
reme Court accusing Justice Karnan of
“continuously harassing” her and her
family and making baseless allegations
against her husband. She has sought
protection from the Supreme Court. She
alleged that she and her family were
aggrieved by the actions of Justice Kar-
nan, including “abusive” telephone calls.
His interaction with other judges in
his parent Madras High Court was also
found to be so offensive that 21 of them
signed a memorandum making a com-
plaint to then Chief Justice of India, TS
Thakur, seeking the transfer of Justice
Karnan to another high court.
Karnan had plunged Madras HC into
a major crisis in 2015 by threatening
contempt of court proceedings against
CJ Sanjay K Kaul, who has now been
recommended by the collegium to be
appointed as a judge of the SC. Karnan
had accused Kaul of interfering in his
judicial work and sought a CBI probe
into the alleged forged educational qua-
lification of another HC judge.
It’s going to be a long legal battle
before the constitution bench which will
take up the case of contempt of court
against Justice Karnan on March 10.
Justice Karnan and judges do know that
he would retire on June 12, 2017 and
there won’t be adequate time to com-
plete the hearing as certain groups who
advocate for the rights of Dalits and
backward classes are gearing up to
intervene in the matter.
NOT SO ILLUSTRIOUS PAST
(L-R) PD Dinakaran of Karnataka High Court
was appointed CJ of Sikkim High Court
despite a pending case on misuse of office;
Supreme Court judge V Ramaswami invoked
his Dalit identity when he faced impeachment
Lead/ Justice Karnan/ Contempt Notice

often discrimination becomes a con-
venient excuse to brush things under
the collective carpet.
Soumitra Sen of Calcutta High Court
was impeached in 2011. Before Justice
Sen’s appointment as a judge, he was a
practising lawyer of the court. In 1983,
the Steel Authority of India Limited
(SAIL) filed a suit against the Shipping
Corporation of India, asking for an
inventory of fire bricks lying at Bokaro
Steel Plant (imported and then rejected
by SAIL) and to sell them. Sen was
appointed Receiver by the court and
instead of his five percent fee, Sen was
found to have defalcated funds that
were not his. The CJI constituted an
in-house committee, which accused
Justice Sen of breach of trust and mis-
appropriation of Receiver’s funds for
Lead/ Justice Karnan/ Contempt Notice/ Precedents
USTICE KARNAN is not the
first judge in India to have
been disciplined by the inter-
nal mechanism of the Indian
judicial system. Even in his
case, it took a long time to
bring proceedings against
him and he has now been stripped of his
duties, though has also been given a
reprieve of three weeks. Judges are
clearly reluctant to act against their own
since it lowers the image of the judiciary
as a whole.
PAST CASES
Within the judiciary and legal commu-
nity, stories abound of corruption, nepo-
tism and favouritism However, over the
last 70 odd years, only a handful of
judges have been taken to task.
Justice V Ramaswami of the Supreme
Court was the first judge against whom
impeachment proceedings were initiat-
ed. He was charged with excessive
expenditure on his official residence
during his tenure as a Chief Justice
of Punjab and Haryana High Court.
That impeachment process failed to go
through parliament, owing mainly to
the caste factor. He was a Dalit, and
personal gain. He was asked to pay up.
Justice Sen paid the entire money and
then went on leave. When his leave
expired, no more judicial work was
allotted to him.
Chief Justice Dinakaran of Sikkim
High Court resigned when impeach-
ment proceedings were initiated agai-
nst him for disproportionate assets.
This case was also diluted by caste fac-
tor (like Ramaswami and Justice
Karnan, he too was a Dalit).
In 2015, a three-judge committee
probed allegations of sexual harassment
levelled by a former additional district
and sessions judge of Gwalior against
Justice Gangele of the Madhya Pradesh
High Court. The lady judge had com-
plained that Justice Gangele had sent
her a message through the district court
registrar to “perform dance on an item
song” at a function at his residence. In
2014, she resigned her post, saying this
was the only way she could protect her
“dignity, womanhood and self-esteem.”
The probe committee found “insuffi-
cient” material to pin down the allega-
tion. The dead end reached by the probe
committee did not go down well with
the executive and 58 MPs submitted a
Judges in
the DockTheshockingcaseofJusticeKarnanand
othersbeforehimreiteratestheneedto
evolveamechanismthatmakesthosewho
presideoverourcourtsaccountable
By Sujit Bhar
J
WHEN LAW CATCHES UP: Justice Soumitra Sen of Calcutta HC was
impeached in 2011 on charges of misappropriation of funds
TheJudicialStandardsand
AccountabilityBill,2010,goes
somewaytowardsresolvingthe
issueoferrantjudges.It
attemptstolaydownenforceable
standardsofconductforjudges.
petition seeking impeachment of the
judge. Finally, a three-member panel
was set up by Vice-President Hamid
Ansari.
In June 2002, Punjab and Haryana
High Court Chief Justice Arun B Saha-
rya stripped three corrupt judges in his
court of their duties, creating a prece-
dent of administrative action for mis-
conduct. Credible allegations against
the judges—Justices Amarbir Singh Gill,
ML Singhal and Mehtab Singh Gill—
were that they were part of Punjab
Public Service Commission (PPSC)
chief Ravi Inder Pal Singh Sidhu’s jobs-
for-cash scam. In a massive act, Sidhu
had manipulated mark-sheets after
exam papers were leaned to help Jus-
tice Gill’s daughter Amol and Justice
Singhal's daughter Sapna to gain gov-
ernment jobs.
These cases are, in fact, rare and
expose a situation where judicial proce-
dures often fall short in prescribing
punishment to one of their own. It was
probably inconceivable at the time of
the inking of the constitution that it
would have to deal with high court and
even Supreme Court judges without
involving the Executive branch which,
in any case, is fraught with political,
religious and other petty biases. Last
year, the Madras High Court hit out at
the corruption within the subordinate
judiciary. At least eight judges face the
music for charges ranging from ineffi-
ciency to corruption. Those disciplined
included Melur judicial magistrate KV
Mahendra Boopathy (suspended) as well
as another district judge (also suspend-
ed) and five district judge cadre officers.
Final action is awaited.
THE ACCOUNTABILITY BILL
A comprehensive bill to oversee the con-
duct of judges and quick action against
offenders is clearly needed. The Judicial
Standards and Accountability Bill, 2010,
goes some way towards resolving the
issue of errant judges. It attempts to lay
down enforceable standards of conduct
for judges and requires them to declare
details of assets, including of their fami-
ly members. The bill was introduced in
parliament after being stalled for a long
time and now, a committee has dem-
anded some changes.
It does, however, provide a critical
set of instruments that can be drawn
upon to discipline judges who have
refused to abide by internal rulings,
while providing a way out in the short-
comings in the constitution as has been
seen in the Justice Karnan case.
The act will also allow the judiciary
to keep an appropriate distance from
the executive. Several instances of clash-
es with the executive have left the judici-
ary wary of confrontation and an instru-
ment of this nature will allow it to main-
tain its distinct nature.
KEY FEATURES OF THE BILL
The bill requires judges to declare
their assets, lays down judicial stan-
dards, and establishes processes for
removal of judges of the Supreme Court
and high courts.
It establishes the National Judicial
Oversight Committee, the Complaints
Scrutiny Panel and an investigation
committee. Any person can make a
complaint against a judge to the
Oversight Committee on grounds of
“misbehaviour”.
A motion for removal of a judge on
grounds of misbehaviour can also be
moved in parliament. Such a motion
will be referred for further inquiry to the
Oversight Committee.
Complaints and inquiries against
judges will be confidential and frivolous
complaints will be penalised.
There are questions about some
aspects of this proposed bill, the most
questionable being the fact that the
Scrutiny Panel has judges from the same
high court. Moreover, it is not clear
whether the power of the Oversight
Committee to impose minor measures is
constitutionally valid.
There are other minor quibbles but
there is a larger issue involved. There is
no question that the judiciary needs to
get rid of the black sheep, and there are
many, far more than the ones who have
been acted against. Again, it comes
down to the question of the judiciary’s
main weakness—a tendency to bury its
head in the sand when one of their own
steps out of line.
Ittookalongtimetobring
proceedingsagainstJustice
Karnan.Hehasnowbeenstripped
ofhisduties,thoughwitha
reprieveofthreeweeks.
COURTING CONTROVERSY:
Two judges of the Calcutta
High Court have faced serious
charges of misconduct

Lead/ My Space
Alreadyembroiledinaseriesofcontroversies,JusticeKarnan’sopendefianceoftheSupreme
Courtraisesseriousquestions
HE judiciary in India occu-
pies a prime position. In the
past, the Supreme Court has
successfully managed to
provide legal solutions to
complicated issues involving socio-
political and economic matters that
have come up before it. The Judges of
the higher judiciary enjoy high degree
of independence and constitutional pro-
tection for discharging their duties
without fear or favour. The judges have
to adhere to self restraint of not airing
their views through any public platform
on any issue which has the possibility of
creating controversy.
The Judges of the higher judiciary
by and large have maintained high
standards of judicial ethics and mora-
lity. There are, however, a few excep-
tions, the black sheep in the system.
Justice Karnan has involved himself
in some serious controversies. As a
judge of High Court of Madras, he com-
plained to the SC/ST Commission agai-
nst his colleague judge for allegedly
insulting him on caste, based on flimsy
grounds. His boisterous protests in the
court hall and addressing the media
against recommendation of the names
for elevation to the Madras High Court
was also done in a manner which is not
befitting a judge. He further submitted
his objections against the recommenda-
tions to the president, chief justice of
India and the Union government.
Justice Karnan is also said to have been
discourteous to chief justices and
always tried to give a caste angle to all
his protests and objections.
The Supreme Court collegium took a
liberal attitude towards his wayward
conduct and restrained itself from tak-
ing any action. When he refused to con-
strain himself, the collegium transferred
him to Calcutta High Court. There too,
Justice Karnan flouted all legal barriers,
taking charge of the roster jurisdiction
not vested in him, registered a case suo
motu and, more shockingly, stayed the
order of his own transfer. He did tender
an apology to the Supreme Court for his
conduct and complied with the order of
transfer but the story did not end there.
He continued issuing reckless com-
plaints of corruption against the Judges
of Supreme Court and the Judges of
High Court of Madras to the Prime
Minister and to the President.
T
he Supreme Court finally initiat-
ed suo motu contempt proceed-
ing against Justice Karnan and
demanded his appearance before the
Court on February 13. However, he
ignored the order. The Supreme Court
condoned his absence keeping in view
the constitutional post he holds and
adjourned the case by three weeks in
view of his plea in his written explana-
tion where he asked for more time.
As he has done in the past, Justice
Karnan, a Dalit, is clearly trying to spin
the entire episode as a caste issue.
The Supreme Court should ideally
have ignored the letters written by
Justice Karnan to the President and to
the Prime Minister for an enquiry into
the allegations made against his fellow
Judges. He is in any case, due to retire
in July, 2017. This would have avoided
the unsavoury controversy. The execu-
tive authorities, to whom his letters
were addressed, could have dealt with
the allegations in the complaint.
A section of the public believes that
complaints of misconduct or corruption
against the higher judiciary are being
ignored and no adverse consequences
are evident. The Supreme Court has an
in-house mechanism to deal with com-
plaints, but that system lacks trans-
parency. Only in selective cases, is the
Judge involved transferred. The execu-
tive is equally to blame in handling
complaints against the judges.
The laxity on the part of judiciary
and executive encourages people like
Justice Karnan to defy the Supreme
Court. His case has clearly shown that
the executive needs to play a more pro-
active and effective role in conducting
enquiries into complaints against
judges and initiate prompt legal action
as laid down in the constitution. More
than anything, the Justice Karnan
episode exposes the need to have a law
that governs accountability of judges.
The Judicial Standards and Accoun-
tability Bill, which lays down judicial
standards and establishes processes for
removal of judges of the Supreme Court
and High Courts, has been pending in
Parliament since 2010. It is urgently
needed to restore the public image of
the judiciary, seriously dented by the
actions of one of its own judges.
—The author is former acting chief
justice of Gauhati High Court
The Curious Case of Justice Karnan
T
Justice Sreedhar Rao
HAT made Tamil
Nadu Governor
Vidyasagar Rao wait so
long before realisation
dawned on him that
the jailed AIADMK
general secretary Sasikala Natarajan’s
proxy candidate Edappadi K
Palaniswami’s contingent of 124 MLAs
added up to more than acting chief min-
ister O Panneerselvam’s contingent of
11? Earlier what made the governor fly
off to Mumbai when Tamil Nadu, a state
which he also presides over, was without
a chief minister after O Panneerselvam
resigned on February 5?
Questions are now being asked about
what transpired before the Governor
finally ended the suspense and formally
invited Palaniswami to form the govern-
ment on February 16. India Legal has
access to exclusive information about
the drama behind the procrastination
and why the Governor had to let democ-
racy prevail. So here goes:
BJP’S PLAN
Panneerselvam never had the numbers.
But in resigning as chief minister and
the governor accepting that resignation,
a constitutional crisis was precipitated.
There was no legal scope for taking
back an accepted resignation. If
Panneerselvam had to become CM
again, he had to be sworn in—which
implied that he would have to have
the numbers.
Considering he enjoyed the support
of only 11 MLAs, that option was ruled
out. Even if we factor in the BJP’s inter-
est in Panneerselvam, the party too
did not have the MLAs (it didn’t win a
single seat in the 2016 assembly elec-
tions!) to provide support. So, was the
DMK with 89 MLAs part of the BJP’s
grand plan?
It soon became clear to the BJP’s
central leadership that breaking the
AIADMK and then getting the DMK to
support the faction led by
Gubernatorial
Overreach?
WhydidGovernorVidyasagarRaodraghisfeetininviting
EdappadiKPalaniswamitoformthegovernmentwhen
therewasnodoubtaboutthenumbers?
By Sujit Bhar
W
Focus/ Tamil Nadu Politics/ Jaya’s Successor
DRAMATIC TURN OF EVENTS: Governor CH Vidyasagar Rao administering oath of office and secrecy to Edappadi K Palaniswami UNI

Panneerselvam was not working out. In
fact, India Legal learns from top sources
that the situation had become so unten-
able and critical, that the Union home
secretary had to plead with the
Governor that the delay was becoming
“increasingly embarrassing” and would
end up as a fiasco. That was when
Governor Rao decided to quickly call
Palaniswami and ask him to take oath
and then prove his majority on the floor
of the house in 15 days.
Surprisingly, BJP leader Subraman-
ian Swamy, who had filed the dispropor-
tionate assets case against Jayalalithaa
in 1996, was the governor’s severest crit-
ic. Virtually going against what was
ostensibly his party’s line, he said that
the unusual delay meant that there was
a possibility of “horse-trading” going on
and if a government wasn’t sworn in 48
hours a writ petition could be filed in
the Supreme Court.
Swamy’s comments were dismissed
by the Tamil Nadu BJP president as not
reflecting the position of the party’s
state unit. However, India Legal has
reliably learnt that the central leader-
ship of the BJP was quick to take
Swamy into confidence, and ask him to
go easy. Very clearly, central leaders of
the party figured that Swamy had a
point and there certainly was some sub-
stance in his observation that the inordi-
nate gubernatorial delay would not
stand the legal test. It would be interest-
ing to see if a writ, as Swamy had indi-
cated, is viable even after the govern-
ment has been formed.
The fallout of the political drama in
Chennai means that Panneerselvam, for
all practical purposes, is a spent force.
That he has been used as a political
football was open for all to see. But the
issue now is about Governor Rao’s
intransigence and the forces that acted
behind him. Why did he not discharge
his duty as a constitutional head of the
state at the very outset?
TWO PRECEDENTS
To understand the Tamil Nadu imbrog-
lio, one has to look back at recent inci-
dents involving the Raj Bhawans in two
states—Arunachal Pradesh and
Uttarakhand. In Arunachal the ruling
alliance was broken and the BJP seized
power with the help of rebels. In
Uttarakhand, however, the BJP used
some Congress rebels to plunge the
Harish Rawat government into crisis.
Uttarakhand Governor KK Paul set
March 28, 2016, for a floor test, at
which the BJP panicked. It looked likely
that the rebels it had wooed would be
bought back to the Congress fold. They
were anyway facing disqualification.
Given this scenario, President’s Rule was
hastily invoked.
Then a unique event transpired. For
the first time in Independent India, a
floor test was conducted in a state leg-
islative assembly under the direct super-
vision of the Supreme Court and Rawat
was reinstated. Had the apex court not
intervened, the floor test would have
been the prerogative of the Speaker or
the Governor.
What unfolded in Tamil Nadu is
shocking in political terms. For all prac-
tical purposes, Sasikala will be running
the government from jail (she has
requested a move to a Tamil Nadu
prison) and if you look at the rules gov-
erning jail terms, her remaining three
and-a-half years would be over quicker
than you think.
Jail laws differ from state to state,
but often one “day” is taken as the hours
between sunlight and sunset for the
simple imprisonment which Sasikala is
serving. The “night” spent in jail is
taken as another day—so 24 hours
equals “two days”. Also, parole is not
available to Sasikala and this will be
deducted from her days in jail.
But as far as she is concerned, the
downside is that she cannot contest
elections for 10 years. And therein lies
an opportunity for the BJP and the cen-
tre—if the embers of the rebellion lit by
Panneerselvam can be kept alive, it
could help break the AIADMK in future
and create an Arunachal-like situation.
If and when that happens, Article
356 will come to haunt Tamil Nadu.
Focus/ Tamil Nadu Politics/ Jaya’s Successor
OPanneerselvam(above)never
hadthenumbers.Butinresigning
asCMandthegovernoraccepting
thatresignation,aconstitutional
crisiswasprecipitated.
UNI
IN AMMA’S FOOTSTEPS
AIADMK General
Secretary Sasikala
consoling party workers
after Jayalalithaa’s demise
UNI
EBRUARY 14, 2017 will go
down in Tamil Nadu history
as the day justice finally pre-
vailed and the late Chief
Minister, J Jayalalithaa (JJ)
and her confidante, VK
Sasikala, among others, were finally
convicted by the Supreme Court under
the Prevention of Corruption Act (PCA)
for possessing assets disproportionate to
their known sources of income.
With that, the apex court rung down
the curtains on a controversial case that
lingered on for 21 years since BJP leader
Subramanian Swamy (then in the
Janata Party) first filed a complaint
against Jayalalithaa on June 14, 1996.
In the aftermath of the verdict, there
was political chaos in Tamil Nadu.
Sasikala’s bid to take over as chief min-
ister was thwarted by the verdict. She
is now cooling her heels at a jail in
Bangalore while her nominee, E Palani-
swami has been invited by Governor
Vidyasagar Rao to form the next govern-
ment. But many believe the turmoil in
the AIADMK, which surfaced after
Jayalalithaa’s demise last year, is not
quite over. There might still be a new
twist in the tale.
Political intrigue and controversy
was nothing new to Jayalalithaa. In fact,
she came to power in 1991 thanks to a
conspiracy-of-sorts hatched between her
and Rajiv Gandhi. It was thanks to this
that on January 31, 1991, the DMK
government headed by M Karunanidhi
was dismissed by the Congress-propped
Janata Party Prime Minister Chandra-
shekhar. That was followed by a drama-
tic turn of events when, on May 21 of
the same year, Rajiv Gandhi was assassi-
nated by a suicide bomber at Sriperum-
pudur. In the elections held in June
1991, due to a massive sympathy wave,
the AIADMK-Congress alliance romped
home with a huge majority. The DMK
could manage only two seats out of
Reining in the Kleptocracy
TheSupremeCourtverdictintheJayalalithaacaseisasevereindictmentoftheunholynexus
betweenpoliticians-civilservants-police,aswellasthejudicialsystem.It’stimewe
introspectonthejudgementandaddresscorruptionmoreeffectively
By MG Devasahayam
F
Focus/ Jaya-Sasikala’s Disproportionate Assets Case

234. That was how Jayalalithaa became
Chief Minister.
KLEPTOCRATIC GOVERNANCE
An overwhelming majority in the
assembly, coupled with her being the
“Queen Bee” to the motely crowd of
AIADMK “slave bees”, turned
Jayalalithaa’s head as well as that of her
confidante VK Sasikala. What followed
was a despotic and whimsical rule sans
democratic norms or scruples. Soon
enough, Tamil Nadu morphed from
democracy to autocracy. Jayalalithaa
became Saint Mary, Mother Teresa and
Goddess Durga all rolled into one and
the citizens who voted her to power
became her “subjects”. Under her, Tamil
Nadu adopted the kleptocratic form of
governance—government of the thieves,
by the thieves, for the thieves.
During the run-up to next assembly
elections in 1996, Shekhar Gupta, then
with India Today, had accompanied
Jayalalithaa for three days while she was
campaigning in north Tamil Nadu.
Before leaving for Delhi he dropped in
for lunch. I asked him for his take on
the election. His reply was curt: “JJ will
lose”. I asked him why and he answered
in one word: “hubris”. That was precisely
what happened. AIADMK was trounced
by the combination of DMK and the
Tamil Manila Congress (the breakaway
faction of the Congress) with Jayalali-
thaa managing just 4 of 234 seats!
The corruption case which the Sup-
reme Court finally settled in February
2017 goes back to 1996, soon after
Jayalalithaa was voted out of power.
Subramanian Swamy had filed a com-
plaint that she had amassed wealth and
property disproportionate to her known
sources of income. Subsequently, Prof
K Anbazhagan, general secretary of the
DMK, joined the complaint which was
investigated under the special
court’s direction. During the
investigation, large amount of
incriminating evidence was
found and a charge-sheet filed
in the special court in
Chennai.
In 1997, the special judge
issued summons to
Jayalalithaa, Sasikala, VN
Sudhakaran and J Elavarsi
and charged them under the
IPC and PCA. These charges
were denied and the accused
sought trial.
Meanwhile, the Vigilance
and Anti-Corruption depart-
ment conducted further inves-
tigations and gathered evi-
dence of disproportionate
wealth amassed outside the
country in Sri Lanka, Dubai,
Malaysia, Singapore and Hong
Kong, and an additional
charge-sheet was filed. During
the course of investigation and trial, 258
witnesses were examined.
Jayalalithaa returned to power in
2001. In November 2003, the Supreme
Court moved the case to Karnataka,
with the direction to constitute a special
court in Bangalore and conduct the trial
on day-to-day basis. The objective was
to have a speedy trial conducted in
an impartial manner as demanded by
the accused.
LONG DRAWN CASE
It was on September 27, 2014, that the
special court judge in Bangalore, John
Michael D’Cunha passed a judgement
convicting Jayalalithaa, her “non-biolog-
ical sister” Sasikala and two others for
possessing disproportionate assets. They
were sentenced to four years’ imprison-
ment and a heavy fine. The AIADMK
supremo, who immediately stepped
down as chief minister, was also barred
from contesting elections for a period of
10 years. On May 11, 2015, the convic-
tion was set aside by the Karnataka
High Court which acquitted her of all
charges.
It had take 11 years for the trial court
judge to pronounce the judgment. This
is what D’Cunha said of the inordinate
delay: “It is borne out from the records
that, after the trial resumed before this
Court, the accused moved application
after application before this Court at
every stage of the proceedings raising
different interlocutory issues purpor-
tedly to vindicate different facets of their
right to a free and fair trial and virtually
every order passed by this Court was
carried in Appeal or Revision to the
Hon’ble High Court of Karnataka and
then to the Hon’ble Supreme Court of
India resulting in considerable delay in
the progress of the case.”
The case mainly involved Jayalali-
thaa, who became the first serving CM
to be convicted under the PCA. She was
the main accused and those who lived at
her Poes Garden residence in Chennai
during her first tenure as CM were the
co-accused namely—Sasikala, Sudha-
karan (proclaimed by Jayalalitha as her
Focus/ Jaya-Sasikala’s Disproportionate Assets Case
Jayalalithaacontinuestobea
deityandhergraveattheMarina
hasbecomeaplaceofpilgrimage.
ThestateAssemblyevenpassed
aresolutionfortheconfermentof
BharatRatnaonher.
JusticePinakiGhose
Henoticedaclose
collaborationbetween
Jayalalithaaand
Sasikalainmany
transactions,includ-
ingpurchasesoflarge
propertiesandopening
ofabout50bank
accounts.
JusticeAmitavaRoy
Hegaveathree-page
evocativejudgmenton
theplightofthe
commonman.Itwas
anexpressionofthe
court’s“deep
concern”for
escalatingcorruption
inthecountry.
Court’s finding on the percentage of dis-
proportionate assets being 8.12 percent
was “based on completely wrong reading
of the evidence on record compounded
by incorrect arithmetical calculations”.
He noticed a close connection between
Jayalalithaa and Sasikala and their col-
laboration in many transactions, includ-
ing purchases of large properties and
opening of about 50 bank accounts. The
trial court’s judgment was restored in
toto and this is a severe censure for
Justice Kumaraswamy.
Justice Amitava Roy, the second
judge gave a three-page evocative judg-
ment on the plight of the common man,
the upright and the honest who find
themselves in the minority in a society
where corruption has spread its “malig-
nant” hold over every strata of society.
He pointed to the Jayalalithaa case as a
“startling” example of how corruption
has a stranglehold over both the perpe-
trators and the sufferers.
If Justice Roy is true to his words,
the Supreme Court must take a closer
look at the manner in which Judge
Kumaraswamy conducted the case. He
allowed the Tamil Nadu government
headed by Jayalalithaa, the main
accused, to appoint the public prosecu-
tor whereas this was the responsibility
of the Karnataka government. By the
time Karnataka appointed a prosecutor,
Kumaraswamy had completed oral
hearing and gave just a day to the prose-
cutor for written submission which he
ignored while “writing” his judgment.
“foster son”) and Elavarasi (niece of
Sasikala). Jayalalitha, along with
Sasikala (accused No 2), floated compa-
nies that had both of them as partners.
Property, assets and money were acqui-
red and transferred in the name of these
companies though no actual business
activity was carried out.
After 1991, around 31 firms were
floated in the name of Sasikala, Sudha-
karan and Elavarasi, for which no
income tax returns were filed and no
assessment for commercial tax was
done. Jayalalithaa’s assets and funds
were found to be disproportionate to
the extent of around `66 crore.
The trial court convicted and sen-
tenced Jayalalithaa under the PCA to
simple imprisonment for a period of
four years and asked her to pay a fine
of `100 crore. Sasikala, Sudhakaran,
and Eavarasi were sentenced to simple
imprisonment for a period of four years
and to pay a fine of `10 crore each. After
her conviction, Jayalalitha stepped
down as Chief Minister and nominated
O Panneerselvam as her successor.
The conviction was appealed against
in the Karnataka High Court, and the
verdict was quashed by the special vaca-
tion bench of Justice CR Kumaraswamy.
Jayalalithaa returned triumphant as
chief minister and died in office on
December 5, 2016, as a “guiltless” per-
son. However, the Supreme Court’s
verdict will cast a long shadow over
her reputation and legacy.
BIZARRE LOGIC
The judgement by Justice Kumara-
swamy of the Karnataka High Court
acquitting all the accused is bizarre and
defies all logic. The Supreme Court has
rightly torn into this perverse judgment.
Justice PC Ghose, in his elaborate judg-
ment, has examined every facet of the
case in detail. He lauded the trial court
for being “meticulous, sensitive, vigilant
and judicious in appraisal”; by contrast,
he deplored the failure of the High
Court “to appreciate the evidence in the
correct legal context”.
Justice Ghose observed that the High
This warrants high-level enquiry and
stringent action.The least Justice Roy
should have done was to order a CBI
enquiry as part of his judgment.
MISPLACED TRUST
There is a strange quirk in the whole
episode. Jayalalithaa continues to be a
deity and her grave at the Marina has
become a place of pilgrimage. The Tamil
Nadu Assembly even passed a resolution
strongly recommending the conferment
of Bharat Ratna on her. All AIADMK
legislators continue to swear by her and
wannabe chief ministers are pledging to
carry on her “Golden Era”. It appears
that Tamil Nadu is still under the klep-
tocratic grip—an affront to the Supreme
Court verdict.
“Kleptocracy” is a system charac-
terised by rampant greed and corrup-
tion with politicians, civil servants,
police, as well as the judicial system in
the orbit. In such a system, the “rulers”
develop the mentality of the conqueror
and function as petty autocrats. State
kleptocracy is a joint venture between
the politicians, power brokers and the
bureaucracy. This was the case in Tamil
Nadu during Jayalalithaa’s chief minis-
tership and continues to be so.
The big question then is: will this
far-reaching Supreme Court judgment
stem the rot and jolt the state klepto-
cracy? The jury is still out on this.
(The writer is a former bureaucrat and
political commentator)
DREAMS DASHED
Sasikala arrives at the
Parappana Agrahara prison
in Bengaluru. She failed in
her attempt to become CM
UNI

Legal Eye/ Enemy Property Act, 1968
ThousandsofMuslimscouldlosethepropertyinheritedfromtheirancestorswhomovedto
Pakistanunderanewordinanceissuedbythegovernment
By Ramesh Menon
Controversial Ordinance
bench of Chief Justice JS Khehar and
Justice NV Ramana gave a judgment
which said that enemy property should
not get transferred to the descendants
of the erstwhile owners and must go to
the government.
“We are of the view that enemy
property should not get transferred to
the descendants of the erstwhile own-
ers. It must go to the government. We
who fled to China after the 1962 war or
to Pakistan after the 1965 and 1971 con-
flicts. Some properties were left behind
by those who moved after partition to
East and West Pakistan.
The Enemy Property Act, 1968,
labeled these as “enemy properties” and
vested these properties to be taken care
of by the government.
In early February, a Supreme Court
HIS government is big on
surgical strikes, and now we
have one more. Nearly seven
decades after partition, the
Centre is pushing an ordi-
nance which revives the Enemy Property
Act of 1968. Armed with this, it aims to
dispose of over 16,000 properties valued
at several crores. Most of these are occu-
pied by relatives or legal heirs of those
T
AT GOVERNMENT’S
MERCY
This majestic property
bequeathed by
Raja Mohammed Amir
Mohammad Khan of
Mahumudabad in UP
is under a cloud
are very clear about it,” the bench said.
The relatives and legal heirs who
opted to stay back wanting to retain
their Indian identity, now face loss of
legally inherited properties. One of
them, who could lose numerous proper-
ties in north India, told India Legal: “It
hurts when we are now seen as ‘ene-
mies’ and the property we rightly inher-
ited is being taken over by the govern-
ment just because our ancestors chose
to move to Pakistan.”
The Supreme Court refused to enter-
tain Congress Rajya Sabha MP Husain
Dalwai's writ petition challenging the
validity of the Centre’s decision to
re-promulgate the enemy property
ordinance for the fifth time, terming it
a violation of a recent constitution
bench decision.
Earlier, a constitution bench of the
Supreme Court had sent a strong mes-
sage to the government on arbitrary
ordinances it promulgates. It asked why
the government had for the fifth time
re-promulgated the Enemy Property
Ordinance. It said that it was a clear
violation of an earlier order of the court.
It was hearing a PIL filed by Dalwai
challenging the ordinance.
In his petition, Dalwai said: “The
action of the government in re-promul-
gating the ordinance, bypassing the leg-
islative process of Parliament, is not
only arbitrary, it’s also a fraud on the
Constitution itself.”
The Enemy Property (Amendment
and Validation) Ordinance, 2016, was
promulgated by the President in
January last year to amend the Enemy
Property Act, 1968, and the Public
Premises (Eviction of Unautho-rised
Occupants) Act, 1971. The government
moved a bill on it to be passed in the
Lok Sabha but when it was presented in
the Rajya Sabha on March 15, members
wanted it referred to a select commit-
tee. Parliament was adjourned hours
after this happened.
The ordinance was therefore re-pro-
mulgated on April 2 last year. Again,
there was no action on the bill. So, it
was promulgated for the third time on
May 31, 2016 and later for the fourth
time. It was re-promulgated for the fifth
time on December 22 last year. No rea-
sons were given. Last year, the Presi-
dent had remarked that ordinances
should be promulgated only when there
was urgency. In fact, the Supreme Court
in a recent judgment had stated that re-
promulgation of ordinances was consti-
tutionally impermissible since it repre-
sented an effort to overreach the legisla-
tive body that is the primary source of
lawmaking authority in a parliamentary
democracy. Re-promulgation defeated
the constitutional scheme under which
a limited power to frame ordinances
had been conferred upon the President
and governors, it said.
Sources in the government argue
that there is nothing wrong with what
the Modi government is doing as
Pakistan had already disposed of all
properties that were left behind by
those who fled to India. One of those
whose properties in Uttar Pradesh
would be lost if the law came into force,
said on condition of anonymity, that the
government move would not be able to
stand scrutiny if challenged in any court
of law. Congress MP Shashi Tharoor
has said that the bill would certainly be
against the principle of natural justice
as it would deprive legitimate Indian
Muslims from their right to property
bequeathed to them.
Thousands of Muslims now
holding the property of their
ancestors, who chose to move to
Pakistan, are worried that they may
soon lose it to the government, which
under the new law, can acquire and dis-
pose it off. Clearly, we have not heard
the last of this controversy as it will
continue to simmer when it comes up
in parliament.
Intheirverdict,CJIJSKheharand
JusticeNVRamana saidthat
enemypropertyshouldnotget
transferredtothedescendantsof
theerstwhileownersandmust
gotothegovernment.
“Theactionofthegovernmentinre-promul-
gatingtheordinance,bypassingthelegisla-
tiveprocessofParliament,isarbitraryanda
fraudontheConstitutionitself.”
CongressMPHusainDalwai
“Thebillwouldcertainlybeagainsttheprin-
cipleofnaturaljusticeasitwoulddeprive
legitimateIndianMuslimsfromtheirrightto
propertybequeathedtothem.”
CongressMPShashiTharoorOWNERSHIP CRISIS
The Butler Palace in Lucknow classified as Enemy Property

Legal Eye/ Memorandum of Procedure
EMORANDUM of
Procedure (MoP) is
being literally used to
paper over the cracks
between the govern-
ment and the higher
judiciary. The Chief Justice of India
(CJI), JS Khehar, has said that the court
will take a final call with regard to the
MoP, maybe by the end of this month.
He said this recently while disposing of
a Public Interest Litigation (PIL) with
regard to appointment of judges to the
Punjab and Haryana High Court.
After the Supreme Court in late 2015
struck down the National Judicial
Appointments Commission (NJAC) Act
2014 as violating the basic structure of
the Constitution, it had agreed that
there was need for changes in the func-
tioning of the collegium, comprising the
CJI and four senior judges of the court,
in choosing the judges of the apex court
and those of the high courts. The apex
court conceded that the collegium was
not functioning as it ought to and there
was need to change its manner and mat-
ter of working.
But the matter is stuck for more than
a year. The Department of Justice (DoJ)
had sent to the court amendments to
the MoP for consideration and consent.
The last communication on the matter
dates back to July 1, 2016.
Meanwhile, the department-related
parliamentary standing committee of
personnel, public grievance, law and jus-
tice had tackled the burning issue of the
delay in appointment of judges to the
Supreme Court and High Courts in its
87th report, tabled in the two Houses of
Parliament in December, 2016. It is
aptly called, “Inordinate Delay in Filling
up the Vacancies in the Supreme Court
and High Court.”
Committee chairman and deputy
leader of the Opposition in the Rajya
Sabha, Anand Sharma says in the
“Introduction”: “The Committee decided
to take up the subject in view of the
alarming pendency of cases before the
The Inherent Loopholes
Somerareinsights fromaparliamentarystandingcommitteereportonjudges’selection
By Parsa Venkateshwar Rao Jr
M
ARDUOUS TASK AHEAD
The Supreme Court has in
December 2016 asked the
centre to prepare the
Memorandum of Procedure
for selection of judges to
the higher judiciary
Anil Shakya
Supreme Court and High Courts and
thereby addressing the slow pace of dis-
pensation of justice for the common citi-
zens of the country. One of the main
reasons identified for the large number
of vacancies to the extent of 43 per cent
in the High Courts is the delay in the
appointment of judges.”
T
he report reveals the deposition
of the secretary of the DoJ in the
Ministry of Law to the committee
with regard to the functioning of the
High Court collegiums and the Supreme
Court Collegium (SCC). The secretary,
DoJ, told the committee that in many
instances the high court collegiums did
not consult the chief minister and gov-
ernment with the regard to the names
suggested for the Bench “which is not
just violation of MoP but also bypassing
of authorities.”
The secretary, DoJ, also told the
committee: “Meritorious lawyers in the
Bar are not considered by the High
Court’s Collegium while those whose
names are recommended by High
Court’s Collegium are rejected by the
Supreme Court Collegium to the extent
of thirty per cent on an average. In some
cases, it has gone up to eighty to hun-
dred per cent.”
The DoJ submitted to the parliamen-
tary committee many of the amend-
ments to the MoP with regard to the
functioning of the collegium.
The committee makes the stark dec-
laration: “The Committee is privy to
supplemental MoPs as submitted to
Chief Justice of India. The response of
the Chief Justice of India was received
on 25.05.2016 and 01.07.2016. The
Supreme Court Collegium has agreed
with some of the suggestions made in
the revised MoP while it has not accept-
ed some other provisions. Many of the
proposals of the Government to bring
greater transparency, objectivity and
accountability in the appointment
process have not been accepted by the
Supreme Court Collegium (SCC). The
views of Government were conveyed to
the Chief Justice of India (CJI) on
3.8.2016. The response of the CJI is
awaited.”
There is much more disturbing news
that the standing committee discloses:
“The Secretary (Department of Justice)
in her deposition on 21st November,
2016 submitted that out of eighty-seven
names recommended by SCC, forty-four
have been cleared for appointment
while forty-three names were referred
back to SCC for reconsideration on vari-
ous grounds which includes holding
office of profit, adverse IB report, held
elected positions in political parties,
Contradictory/Lack of views of consul-
tee Judges, charges of sexual harassment
and corruption. These forty names
belong to five High Court i.e. Allahabad
(24), Madras (6), Uttarakhand (3),
Karnataka (3), Calcutta (07).”
The fact that lawyers with question-
able credentials had made it to the list
of nominees for the post of high court
judges should make the Supreme Court,
parliament and the government to sit up
and take notice.
The standing committee in its series
of recommendations for resolving the
stand-off between the government and
the higher judiciary, suggests some
remedies to bring about what it calls
“Glasnost in the process of appointment
of Judges.” One of them is both for the
collegium and the government to state
their reasons when they reject a nomi-
nee. It says, “At present, the reasons for
rejection of a particular candidate by the
Supreme Court Collegium are not dis-
closed. The Committee feels that in case
a candidate’s name is rejected for any
reason by the Collegium, the candidate
must be informed of the grounds of
rejection. The Committee also observes
the Government also rejects the names
recommended by the Supreme Court
Collegium without providing cogent rea-
sons therefor. Such practices are against
the principles of natural justice and
leads to opaqueness in the appointment
of judges.”
The other area of concern which the
committee has voiced is with regard to
the Government rejecting the recom-
mendations of the collegium on grounds
of “national security” and “larger public
interest”. This criterion is part of the
“revised MoP”. It says: “The Committee
apprehends that the Government may
reject any name duly approved by the
Supreme Court Collegium under the veil
of those parameters. This would tanta-
mount to giving veto power to the
Government, which is not as per man-
date of the Constitution.
“In order to avoid such a situation,
the Committee recommends that the
terms ‘national security’ and ‘larger pub-
lic interest’ should, in no unambiguous
terms be defined and circumstan-
ces/antecedents which fall within their
purview listed.”
The committee makes it clear that
the appointment of judges is not a mere
power tussle between the Government
and the Judiciary, and that the parlia-
mentary oversight through standing
committees in the matter cannot be
overlooked.
ChiefJusticeofIndiaJSKhehar
hassaidthattheapexcourtwill
takeafinalcallwithregardtothe
MemorandumofProcedurebythe
endofthismonth.Thematteris
stuckformorethanayearnow.

India legal 27 February 2017

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India legal 27 February 2017