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India Legal 28 January 2019


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Crisis in the Collegium
An analysis and review of how judges handled the controversial induction of two new entrants into the apex body

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India Legal 28 January 2019

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I January 28,2019 Crisisin theCollegium Ananalysisandreviewofhowjudgeshandledthecontroversialinduction oftwonewentrantsintotheapexbody SY Quraishi: Fair elections and social media UP Police Encounters: Court demands answers SUPREME COURT
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  3. 3. HE last thing that the Indian Supreme Court needs right now is yet another controversy that will be used by opponents of an independ- ent judiciary to cast aspersions on its probity and integrity. But it appears as if each time a fire is doused, another conflagration is kindled. Ever since the virtually open warfare broke out between the Executive and the Judiciary over the validity of the Colle- gium system for the promotion, transfer and ele- vation of judges, there has been an uneasy truce between these co-equal branches of our Rep- ublican system of government. The Supreme Court has stuck tenaciously to the paradigm that no matter what the criticism of the Collegium, comprising the five senior-most justices, as a “private club” whose monopoly should be busted through the induction of out- siders into their decision-making in order to avoid any suspicion of favouritism or nepotism, it should be completely insulated from Executive tampering which could lead to the politicisation of the only institution empowered to uphold and enforce the Constitution. To this end, the Court threw out as unconstitutional legislation intro- duced by the Modi government that would have allowed Executive ingress into this exclusive domain. There followed several other crises, not the least among them being open warring between different benches, the mini-mutiny as expressed in the unprecedented press conference led by four senior judges, including current CJI Ranjan Gogoi in which they expressed their dissatisfac- tion with the selection process and assignment of cases. This was followed by the ugly spectacle of a politically-inspired impeachment motion against former CJI Dipak Misra. Hardly had the dust set- tled following Gogoi’s elevation to the top post than the CBI leadership crisis hogged the front pages. This was exacerbated by revelations that Justice AK Sikri, who had been chosen by the CJI to participate in the final adjudication process concerning ousted CBI chief Alok Verma (who had become a thorn in the side of the Modi gov- ernment), had been offered a plum foreign post- ing after his retirement—an offer that Justice Sikri was forced to decline after the matter became public. And now, the Supreme Court is straddled with yet another controversy following the out-of-turn elevation of two judges. The question is not whether the two honourable justices are qualified and thoroughly competent. What is troubling is that this whole matter has once again given ammunition to adversaries of judicial independ- ence who will use this as an example to cast aspersions on the highest court of the land. They will try and create doubts about the fairness of the system in order to take political advantage in pushing their own agendas at the expense of the Court’s reputation. Our cover story analyses what went wrong in the selection process and why this would give ammunition to those who would try and bring the whole system into disrepute. To recap from this story: “The New Year has meant key changes in the Supreme Court in terms of two new judges joining the Court on January 18. The chief justice of Karnataka High Court, Dinesh Maheshwari, and a judge of Delhi High Court, Justice Sanjiv Khanna, were administered the oath of office by the Chief Justice of India, Ranjan Gogoi, in his Court, despite a raging controversy over the mer- its of the Collegium’s recommendation to elevate them, overlooking their lack of seniority over the other eligible judges in the consideration zone. The critics of the Collegium’s decision alleged that while recommending these two judges for eleva- tion to the Supreme Court, it simply ignored the TROUBLING QUESTIONS Inderjit Badhwar Letter from the Editor 4 January 28, 2019 TheSupremeCourtisnowstraddledwithanothercontroversyfollowing theout-of-turnelevationoftwojudges.Thequestionisnotwhetherthe twojusticesarequalifiedandcompetent.Whatistroublingisthatthis issuehasagaingivenammunitiontoadversariesofjudicialindependence touseitasanexampletocastaspersionsonthetopcourt. T
  4. 4. requirements of law and the established conven- tions. Their grievance was that the Collegium unjustly jettisoned its resolution adopted at its December 12, 2018, meeting in which it recom- mended the elevation of the Chief Justice of Delhi High Court, Justice Rajendra Menon, and the Chief Justice of Rajasthan High Court, Justice Pradeep Nandrajog, to the Supreme Court. These two judges were senior to Justices Maheshwari and Khanna, and seniority being an important criterion, it was pointed out, the Collegium ought not to have ignored it.” O ur correspondent writes: “Conventions and the procedure established by the Supreme Court’s judgment in the Second Judges case, the critics pointed out, require that once the Collegium resolves to recommend judges for appointment, the names are sent forthwith to the government for processing. But the Collegium which recommended certain names of judges in its meeting on December 12 last year did not ensure that its resolutions were uploaded on the Supreme Court’s website, and formally sent to the Centre for processing.” The article further says: “The Collegium was of the considered view that both Justices Mahesh- wari and Khanna are more deserving and suitable in all respects than other chief justices and senior puisne judges of High Courts for being appointed as judges of the Supreme Court of India. “While recommending their names, the Collegium claimed to have taken into considera- tion their combined seniority on all-India basis of chief justices and senior puisne judges of High Courts, apart from their merit and integrity. The Collegium also claimed to have kept in mind the desirability of giving due representation on the Bench of the Supreme Court, as far as possible, to all the High Courts.” Our legal analyst concludes in his piece that critics are right in asking the CJI and the Colle- gium members whether there is any strong and cogent reason to justify a departure from the order of seniority, as envisaged in the Supreme Court’s judgment in the Second Judges case, and if so, it must be shared with the public. “But the CJI appears to have taken a stand that disclosure of adverse material against a judge serving in the High Court could compromise his or her continuance as a High Court judge, and therefore, should be better avoided. The reason is convincing if there is supersession of one or two judges, or when a need is felt to elevate a not so senior judge to ensure geographical, social and regional diversity. But when the list of superseded judges in the all-India list of eligible High Court judges is so huge, as in the present case, misgiv- ings are bound to arise as to whether there are strong and cogent reasons for departing from the principle of seniority,” our story says. It ends on a sobering note: “Questions contin- ue to be asked a year after that (four-judge) press conference whether the current CJI, Ranjan Gogoi, who was part of that presser, has taken the necessary systemic steps to inspire the confidence of the public in the institution of the Court and made it more transparent.” | INDIA LEGAL | January 28, 2019 5 Twitter: @indialegalmedia Website: Contact: Theadversariesofjudicialindependencewilltryandcreatedoubts aboutthefairnessoftheCollegiumsystemintheSupremeCourtin ordertotakepoliticaladvantageinpushingtheirownagendasatthe expenseoftheCourt’sreputation. Anil Shakya
  5. 5. ContentsVOLUME XII ISSUE11 JANUARY28,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: website: MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 January 28, 2019 14Controversy over Collegium The elevation of two judges to the Supreme Court after supersession of many high court judges raises questions of propriety and whether established procedure was followed LEAD 18Sway with Me The Supreme Court has struck down several provisions of a Maharashtra law which imposed unreasonable curbs on the functioning of dance bars in Mumbai SUPREMECOURT 20A Matter of Right By ruling that a person born of a void marriage is entitled to compassionate appointment, the apex court has ensured the dignity of the family of an employee who died in harness
  6. 6. | INDIA LEGAL | January 28, 2019 7 Teetering on the Edge REGULARS Followuson Twitter:@indialegalmedia Cover Illustration & Design: ANTHONY LAWRENCE Ringside............................8 Courts ...............................9 Is That Legal...................10 Delhi Durbar ...................12 Media Watch ..................49 Though British Prime Minister Theresa May has narrowly won a no- confidence vote, she is under pressure to find a credible Plan B for Brexit that will get the support of Parliament 46 Just Desserts Dera Sacha Sauda chief Gurmeet Ram Rahim Singh has been awarded a life sentence for the murder of a journalist. He is also serving 20 years’ imprisonment for raping two female devotees 28 Precarious Freedom The Kerala High Court has quashed the premature release of 209 prisoners by the state governments citing procedural anomalies GLOBALTRENDS Muddled Mess A longstanding financial dispute between Le Meridien hotel and New Delhi Municipal Council threatens to change the fate of this luxury hotel A Bridge Too Far A flyover meant to ease Bengaluru’s traffic woes has run into trouble as the Karnataka High Court has directed the Bengaluru Development Authority to seek environmental clearance first Trial by Gun Rocky Mountain High The Uttar Pradesh government’s encounter policy has met with widespread condemnation, forcing the top court to examine a plea for a court-monitored probe The controversial Char Dham project in Uttarakhand has been cleared by the top court despite ecological concerns 24 32 34 Endless Agony 36 Justice SN Dhingra, who heads the SIT looking into 186 cases linked to the 1984 anti-Sikh riots, says that the entire state machinery, the government and the judiciary failed the victims INTERVIEW 22 Sacrosanct Rules “Election silence” should be extended to digital platforms and social media and should be strictly followed, says former Chief Election Commissioner SY Quraishi OPINION 30 40 COURTS SPOTLIGHT Future Perfect Astrology as a science is growing in India and one of its foremost proponents is KN Rao, former D-G of the Indian Audit and Accounts Service 44 PROFILE
  7. 7. 8 January 28, 2019 “ RINGSIDE “Right from the time I came into politics in 1996, I have been saying that local mil- itants are sons of the soil and our maxi- mum efforts should be to save them because they are assets....” —PDP chief Mehboo- ba Mufti on why local militants shouldn’t be allowed to walk the path of violence “I am disappointed to see that the pres- ent-day BJP is no longer following the principles of the late Vajpayeeji.” —Former Arunachal Pradesh Chief Minister Gegong Apang after resigning from the party “People of Assam have been lucky to have not been affect- ed by the partition of the country in 1947 on religious lines.... But all were not as lucky as you.... But if those who suffered during Partition, if they face religious persecution, where will they go?....” —Ram Madhav, BJP national general secre- tary, on the need for the Citizenship Bill “For the first time, I would like to make it public that giving a party post to Pra- shant Kishor was not entirely my deci- sion. I got calls from Amit Shah twice to give him a post in the party.” —Bihar CM Nitish Kumar on appoint- ing Prashant Kishor the number two in the JD(U) “If the news is true that a charge sheet has been filed, I would like to thank police and Modiji. The filing of a charge sheet after three years, ahead of elections, clearly shows it to be politi- cally motivated....” —Former JNUSU President Kanhaiya Kumar on the sedi- tion case against him “If you’re Hindu be Hindu, Muslim be Muslim, Christian be Christian. Why do you want to convert the whole world?” —Home Minister Rajnath Singh, expressing his concern over mass conversion “Virgin girl is like sealed bottle or sealed packet. Are you willing to buy broken seal while purchasing a bottle of cold drinks or a packet of biscuits.... To most boys virgin wife is like angel.” —Kanak Sarkar, a Jadavpur University professor, expressing his opinion on virgin brides, on Facebook “In Supreme Court, we remember Justice Sabharwal every day—be it reiteration of the basic structure principle in IR Coelho’s case, the push he has given to environmental jurispru- dence in TN Godavarman (case), or the height to which he had carried the power of judicial review in Raja Ram Pal’s case.” —Chief Justice of India Ranjan Gogoi, at the release of a book on former CJI YK Sabharwal
  8. 8. The Supreme Court agreed to hear a plea by Zakia Jafri against the Special Investigation Team (SIT)’s clean chit to then Gujarat Chief Minister Narendra Modi in connection with the 2002 Godhra riots. Zakia, the wife of Ehsan Jafri, an ex-MP who was killed in one of the worst incidents during the riots, had challenged the Gujarat High Court’s 2017 order rejecting her plea against the SIT’s deci- sion. In February 2012, the SIT had filed a closure report, giv- ing a clean chit to Modi and 63 others, including senior govern- ment officials, citing lack of “prosecutable evidence”. The apex court has ordered Zakia’s plea to be listed for hearing after four weeks. Courts | INDIA LEGAL | January 28, 2019 9 Twitter: @indialegalmedia Website: Contact: —Compiled by India Legal Team SC bans coal transportation Irked by the little headway made by the cen- tre in appointing a Lokpal, the Supreme Court asked the Lokpal search committee to complete its deliberations and submit a panel of shortlisted names by February 28. A bench of Chief Justice of India Ranjan Gogoi and Justices L Nageswara Rao and SK Kaul also directed the centre to provide all infra- structure and facilities to enable the commit- tee to complete its task. The eight-member search committee, headed by former Supreme Court judge Justice (retd) Ranjana Prakash Desai, was constituted on September 27, 2018, but has not met even once. The names suggested by the committee will be vetted by a selection committee comprising the prime minister, Lok Sabha speaker, chief justice of India, leader of opposition in the Lok Sabha and an eminent jurist. Taking serious note of the delay, the apex court had, on January 4, asked the centre to apprise it of the steps taken so far for app- ointment of a Lokpal. The latest order comes on a plea which sought initiation of contempt proceedings against the centre for delaying the appointment. The matter has been posted for further hearing on March 7. In a major setback for the BJP, the Supreme Court refused to set aside a division bench order of the Calcutta High Court which had denied permission to the party to hold its rath yatras in West Bengal. A bench led by CJI Ranjan Gogoi said that it was within the preroga- tive of the state government to grant or refuse permission after taking law and order issues into consideration. The Court also said that the apprehension of violence, cited by the state government as the reason for denial of permis- sion, was not unfounded. It added that the BJP can, however, hold normal rallies with the approval of the state government. The Supreme Court reiter- ated its direction to states to select their Director Gen- erals of Police (DGPs) from a list of officers empanelled by the Union Public Service Commission (UPSC). It dis- missed the pleas filed by Punjab, Haryana, West Bengal, Bihar and Kerala, seeking a modification of its July 3, 2018, order. On July 3 last year, the Supreme Court had passed a slew of directions on police reforms and revamped the selection process for DGPs. In their pleas against this order, the states had argued that the police being an exclusive state subject, they should be allowed to choose their DGPs through an internal state committee rather than the UPSC. A bench of Chief Justice of India Ranjan Gogoi and Justices L Nag- eswara Rao and SK Kaul didn’t find merit in this argu- ment and said that the earlier directions on selection and appointment of DGPs were issued in the larger public interest and to protect police officials from political interference. The Supreme Court banned the transportation of extracted coal lying at various sites in Meghalaya. This order comes even as the authorities have failed to rescue the 15 miners trapped inside an illegal rat-hole coal mine for over a month. The order was passed by a bench comprising Justices AK Sikri and SA Nazeer who refused the plea of miners to allow them to transport the extracted coal at vari- ous places. The bench issued notices to the Meghalaya govern- ment, the centre and others seek- ing their response on various issues connected with coal mining in the state, and posted the matter for further hearing on February 19. States’ plea against DGP order dismissed by apex court No relief for BJP in rath yatra case SC to hear Zakia Jafri’s plea against SIT order Finalise shortlist for selection of Lokpal, says SC
  9. 9. 10 January 28, 2019 ISTHAT Can a parent ask for maintenance from his or her child or file an application for maintenance against his or her child? According to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, a parent who is unable to maintain himself or herself from his own earnings or out of the property owned by him or her, is entitled to make an application under Section 5 of the Act. However, such a claim cannot be made against a minor child. As per this Act, children are obliged to maintain their parents and this obligation extends to the needs of the father or mother or both, as the case may be, so that such parent may lead a normal life. Apart from this Act, remedy has also been provided under Section 125 of the Code of Criminal Procedure. What requirements are to be fulfilled by a person to be declared an indigent person while filing a suit? According to Order XXXIII Rule 1 of the Code of Civil Procedure, 1908, a person is considered indigent for the purpose of a particular suit, if he or she does not pos- sess sufficient means or funds (other than the property which is the subject matter of the suit) to enable him to pay the court fee prescribed by law for the plaint in such suit. If no fee is prescribed then the person qualifies as indigent if he does not possess property worth one thousand rupees other than the property which is the subject mat- ter of the suit. If a person inherits or receives any property during the pendency of the suit, such property will be taken into account for the purpose of calculation of his funds, and accordingly, the court will declare whether he or she qualifies as indigent or not. Who Qualifies As An Indigent Person? —Compiled by Deepankar Malviya Parents Can Claim Maintenance From Child Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What procedure should be followed if a woman is harassed? If a woman is harassed, the first step is to file an FIR at the nearest police station. A zero FIR can also be filed at any police station which will send the information to the jurisdictional police station. The police cannot refuse to file an FIR in such cases, but if they do so, the complainant can talk to the SHO or the SP of the area or file a private complaint before the magistrate. Once an FIR is lodged, the police has to promptly start the investigation and send a report to the concerned magistrate who is empowered to take cognisance of the matter. The investigation is to be com- pleted without undue delay. During the investigation the investigating officer has to maintain a case diary on its progress. Once the investigation is completed, a police report is filed along with the charge sheet of which the magistrate takes cogni- sance and the court case begins. File An FIR In Sexual Harassment Cases ? Twitter: @indialegalmedia Website: Contact: What procedure should be followed by a landlord if the tenant occupying his land refuses to vacate it? Once valid ground for eviction is established by the landlord, the landlord must serve an eviction notice to the tenant to vacate the property. The notice must give the tenant reasonable time to act on it. The eviction notice is filed in the court with appropriate jurisdiction. The court then sends the notice to the tenant on behalf of the landlord. The tenant may refuse to act on the eviction notice and contest it in court. The court in this case will be the court under whose jurisdiction the property falls. If the tenant contests the notice in court, the court will hear the arguments and evidence presented by both parties and then take a decision. What To Do If A Tenant Refuses To Vacate Land?
  10. 10. 12 January 28, 2019 An inside track of happenings in Lutyens’ Delhi The homecoming of veteran politician Sheila Dikshit to active politics as the new chief of the Delhi unit of the resurgent Congress party has been more widely welcomed by rank-and-file workers than was expected. In fact, her elevation as president, replacing the younger Ajay Maken, had smooth sailing even within the portals of the high command where there was near unanimity between the so- called old and new guard. The Congress badly needed this show of unanimity after a mini civil war broke out over the chief ministerial rivalry between Ashok Gehlot and young fire- brand leader Sachin Pilot in Rajasthan fol- lowing the Congress’s recent victory in the assembly polls. Maken and Dikshit had been known to be at loggerheads in the past which is part of the story behind the Congress’s poor showing in Delhi which allowed AAP to sweep to power. But with a different political wind blow- ing across the country, the Congress is looking to regain strength in Delhi’s seven Lok Sabha seats which may entail some backroom arrangement with the ruling AAP which could be losing steam but is still a dominant force. Dikshit seems to be the pick because she is a three-time CM, an able administrator, and a tough but flexible negotiator who will be far more adept in dealing with Arvind Kejriwal and his party honcho Gopal Rai than Maken who is seen not only as a divisive element within the Delhi Congress but also as an uncompromising hardliner when it comes to AAP. Her obvious drawbacks are her advan- cing age (she is 80) and relatively poor health. She has just returned from abroad following a heart procedure as well as eye surgery. But friends who have met her say her energy levels are high. For politicians, age is just a number. Former prime minister Manmohan Singh at 86 has emerged as the most formidable critic of Prime Minister Modi, and LK Advani at 91 and Murli Manohar Joshi at 84 are still chugging along. For yesteryear’s rockstar of Madison Square Garden, Prime Minister Narendra Modi, Congress President Rahul Gandhi’s trip to Dubai must have been galling. Compared to the choreographed hype seen in New York in September 2014, the Gandhi scion’s Dubai trip got a spontane- ous response and was a smash hit on the internet. Though almost ignored by the mainstream media here, social media was flooded with videos of his visit. It started with the stupendous welcome at Dubai air- port with excited people falling over them- selves to see him, followed by his speech at a stadium which was chock-a-block with Indians, mainly Malayalees, not only from the Emirates but other parts of the Gulf region too. There was also a video of him being invited to the opulent resi- dence of Yousuf Ali, the richest Indian in the UAE. One had barely taken in the ostentatious gold and white interiors than another video surfaced of Rahul and his entourage, which included Sam Pitroda, having breakfast with another top businessman, Sunny Varkey. The decor, complete with lovely flower arrangements, crois- sants, turkey and other delicacies, was a sight to behold though Rahul is believed to have had only orange juice and scrambled eggs. This attempt to woo cash-rich NRIs has already given jitters to the gov- ernment, leading to fake news about the visit going viral. A web- site, My Nation, claimed that Rahul was embarrassed by questions from a 14-year- old about Congress rule earlier, while one Twitter user said Rahul had breakfast worth £1,500 at the Hilton. Some social media post also claimed that he had beef at the breakfast meeting. All were found false. It was a case of Saffron going Green! GAGA OVER RAGA RETURN OF THE NATIVE
  11. 11. | INDIA LEGAL | January 28, 2019 13 Twitter: @indialegalmedia Website: Contact: Delhi Durbar Recently ousted Madhya Pradesh Chief Minister Shivraj Singh Chouhan had hoped that his party’s narrow defeat in the assembly polls, despite being faced with 15-year anti-incumbency, would have helped him stay on as the BJP’s face in the state. However, Prime Minister Modi and party President Amit Shah don’t seem eager to give Chouhan a chance at resurrecting his political fortunes. Chouhan had hoped to be nominated as Leader of Opposition in the state assembly but the central leadership put a stop to his ambition. Chouhan-baiter and Bundelkhand heavyweight Gopal Bhar- gava has got the post. Chouhan has instead been made the party’s national vice-president, a post he shares with nine other leaders including lightweights like Vinay Sahasrabuddhe, Renu Devi, Shyam Jaju and the other two dethroned chief ministers, Raman Singh and Vasundhara Raje. In Amit Shah’s era, party vice-presi- dents have little say in the BJP’s working. Even before Shah took the reins, the gen- eral secretaries had a more prominent role than the vice-presidents. Before becoming the chief minister, Chouhan was among the party’s most influential general secretaries. The buzz now is that Chouhan may not even lead the party’s upcoming Lok Sabha campaign in the state and will have a limited role in selection of candi- dates. The Modi-Shah duo will instead depend more on the feedback from Chouhan’s rivals, BJP national general secretary Kailash Vijayvargiya, state unit chief Rakesh Singh and Bhargava, while drafting the campaign. Chouhan may, however, be asked to contest the Lok Sabha polls—in all likelihood from Vidisha, the seat currently held by Sushma Swaraj who has announced that she will not be returning to the elec- toral fray. STICKING IT TO SHIVRAJBolstered by the New Year’s Day Women’s Wall that saw more than 30 million women—or so it is claimed— link hands along Kerala’s 620-km-long national highway, left and progressive elements in Kerala decided to go a step farther. The decision had a lot to do with the fact that, on the day the eyes of the entire state were focused on the great wall of Kerala, two women, with not a little help from the local Marxist government and its handpicked police officers, sneaked in under cover of darkness and created history by becoming the first women to enter the Sabarimala temple after the land- mark September 28 judgment of the Supreme Court. Frontal outfits of the ruling CPI(M) thus hit upon the idea of a two-day pro- women event at Kochi’s Marine Drive. Named Aarppo Arthavam (Celebrate Menstruation), its primary aim was to debunk the orthodox notion of menstru- al impurity and to protest against primi- tive attitudes towards women’s monthly cycles. Soon it got the tacit support of the CPI(M) whose cadres took to social media to spread the word and it even became one of the top trending stories on social media. So much so that Chief Minister Pinarayi Vijayan even agreed to be the chief guest at the event’s closing session. Cameth the hour but never cameth the chief minister. The organisers wait- ed and waited and waited …and wait- ed. Vijayan is normally a stickler for punctuality, so eyebrows went up at the long delay. Soon, it dawned on them that the CM would not grace the occasion. The reason: The “grand” entrance to the venue was built in the shape of a giant female sexual organ. It’s easy to understand why a CM, even one as progressive as Pinarayi Vijayan, opted to back out. NO ENTRY While the controversy over the recent sacking of Alok Verma as CBI director has not completely died down, a new one may soon erupt over who may lead the agency after the selection panel finalises a candidate to replace interim chief Nageswara Rao with a full- time one. The selection panel, compris- ing Prime Minister Narendra Modi, Chief Justice of India Ranjan Gogoi and Congress leader in the Lok Sabha Mallikarjun Kharge, is scheduled to meet on January 24 to discuss Verma’s successor. The Ministry of Home Affairs has prepared a shortlist, with 17 potential candidates, for the selection panel’s consideration. Among the frontrunners are NIA chief YC Modi, NSG Director General Sudeep Lakhtakia (both from the 1984 batch), Special Secretary (Internal Security) Rina Mitra, Uttar Pradesh DGP OP Singh (both 1983 batch) and Mumbai police commis- sioner SK Jaiswal (1985 batch). Many believe that YC Modi is the PM’s choice. He was part of the Supreme Court-appointed SIT that probed the 2002 Gujarat riots and gave a clean chit to Narendra Modi. The Congress has claimed that Verma was removed because he was about to order a preliminary inquiry into alleged irregularities in the Rafale deal. If the prime minister succeeds in pushing for YC Modi’s appointment by a majority opinion (Kharge is expected to dis- sent), protests from the Congress are a given. However, to stun the Opposition, Narendra Modi may back the nomina- tion of Mitra. This choice may leave Kharge with little to protest against— she has had a long stint in the CBI in the past, is among the seniormost IPS officers eligible for the job and, most significantly, would be the first woman CBI director. CBI ROULETTE
  12. 12. Lead/ Supreme Court/ Appointment of Judges 14 January 28, 2019 TheelevationoftwojudgestotheCourtbytheCollegiumaftersupersedingmany HighCourtjudgesraisesquestionsofproprietyandwhethertheprocedure establishedbytheSecondJudgescasewasfollowed By Venkatasubramanian Setting the Clock Back? Anthony Lawrence
  13. 13. HE New Year has ushered in key changes in the Supreme Court with two new judges joining it on January 18. The Chief Justice of Karnataka High Court, Dinesh Maheshwari, and a judge of the Delhi High Court, Justice Sanjiv Khanna, were administered the oath of office by Chief Justice of India Ranjan Gogoi in his Court despite a raging con- troversy over the merits of the Colle- gium’s recommendation to elevate them, overlooking their lack of seniority over other eligible judges. Critics of the Collegium’s decision alleged that while recommending these two judges for elevation to the Supreme Court, it simply ignored the require- ments of law and established conven- tions. Their grievance was that the Collegium unjustly jettisoned the resolu- tion adopted at its December 12, 2018, meeting in which it had recommended the elevation of the Chief Justice of Delhi High Court, Justice Rajendra Menon, and the Chief Justice of Rajasthan High Court, Justice Pradeep Nandrajog, to the Supreme Court. These two judges were senior to Justices Maheshwari and Khanna, and seniority being an important criterion, the Colle- gium ought not to have ignored it, it was pointed out. Conventions and the procedure es- tablished by the Supreme Court’s judg- ment in the Second Judges case, the crit- ics said, require that once the Collegium resolves to recommend judges for appointment, the names are sent forth- with to the government for processing. But the Collegium which recommended certain names in its meeting on December 12, did not ensure that its resolutions were uploaded on the Supreme Court’s website and formally sent to the centre for processing. The reason, according to the resolu- tion uploaded on January 10, was that the required consultation could not be undertaken and completed as the winter vacation of the Court had intervened. “By the time the Court re-opened, the composition of the Collegium under- went a change. After extensive delibera- tions on 5th/6th January, 2019, the newly constituted Collegium deemed it appropriate to have a fresh look at the matter and also to consider the pro- posals in the light of the additional material that became available,” the res- olution read. T he Collegium was of the consid- ered view that both Justices Maheshwari and Khanna are more deserving and suitable in all respects than other chief justices and senior puisne judges of High Courts for being appointed as judges of the Sup- reme Court. While recommending their names, it claimed to have taken into consideration their combined seniority on an all-India basis of chief justices and senior puisne judges of High Courts, apart from their merit and integrity. The Collegium also claimed to have kept in mind the desirability of giv- ing due representation on the Bench, as far as possible, to all High Courts. Justice Dinesh Maheshwari was appointed a judge of the Rajasthan High Court on September 2, 2004, and transferred to Allahabad High Court on July 19, 2014. He was elevated as chief justice of Meghalaya High Court on February 24, 2016, and was thereafter transferred to Karnataka High Court on February 12, 2018. His serial no. was 21 in the combined seniority of High Court judges on an all-India basis. Justice Khanna was appointed a judge of the Delhi High Court on June 24, 2005, and stood at no. 33 in the combined seniority of High Court judges on an all-India basis. The Colle- gium said that it was well aware of his seniority in the Delhi High Court also. Justice Khanna will retire on May 13, 2025, and will have a tenure of six months as CJI. This will be after the term of Justice DY Chandrachud as CJI gets over on November 10, 2024. Justice Khanna supersedes two judges of the Delhi High Court, namely, Chief | INDIA LEGAL | January 28, 2019 15 CriticsoftheCollegium’sdecisionallegedthatwhilerecommendingJustices DineshMaheshwari(left)andSanjivKhannaforelevationtotheSupremeCourt,it simplyignoredtherequirementsoflawandestablishedconventions. T
  14. 14. appointed Justice AN Ray as the chief justice of India, thus superseding him. Justice HR Khanna also sided with the majority in the landmark decision in the Kesavananda Bharati case, a 7:6 split verdict which held that Parliament does not have the power to amend the Constitution so as to abro- gate its basic features. Irrespective of his illustri- ous lineage, Justice Sanjiv Khanna’s suitability for joining the Supreme Court in his own right has never 16 January 28, 2019 Justice Rajendra Menon and Justice Shripathi Ravindra Bhat. While Justice Menon retires on June 6 this year, Justice Bhat retires on October 20 next year. The age of superannuation for High Court judges is 62, while for Sup- reme Court judges it is 65. If appointed to the Supreme Court, Justices Menon and Bhat will have tenures of just three-and-a-half and four-and-a half years, respectively. A lthough judges have been app- ointed with such tenures earlier, a judge with a long tenure of five or six years is likely to contribute more to the Supreme Court’s jurisprudence, and can hope to preside over benches, and be a member of the Collegium before his retirement. Justice Khanna is the nephew of a legendary judge of the Supreme Court, HR Khanna, who gave a landmark dis- sent in the habeas corpus case during the Emergency, setting aside the centre’s move to suspend the fundamental rights of citizens. Justice HR Khanna resigned when Prime Minister Indira Gandhi been in doubt. But the controversy over the choice of Justice Maheshwari is not easy to brush aside. He retires on May 14, 2023, a comparatively shorter tenure than Justice Khanna. Besides, his elevation to the Supreme Court was stalled by the previous Collegium when Justice J Chelameswar was its member. Justice Chelameswar opposed his elevation be- cause Justice Maheshwari as chief jus- tice of Karnataka High Court chose to deal with the centre directly rather than through the Collegium regarding the suitability of a district judge recom- mended for the post of High Court judge. While the Collegium reiterated its recommendation to appoint that judge to the High Court, the centre had some misgivings and asked Justice Mahesh- wari to inquire into his suitability in view of allegations of sexual harassment against him. The centre’s decision not to go ahead with the Collegium’s recom- mendation in view of Justice Mahesh- wari’s report was cited by Justice Chela- meswar as adverse material against him. CJI Gogoi is reportedly of the view that the decision of the Collegium not to recommend a person for appointment ItwaspointedoutthattheelevationofJusticesRajendraMenon(left)andPradeep NandrajogwasignoreddespitetheirbeingseniortoJusticesMaheshwariandKhanna. Seniorityisacriticalcriterion,andtheCollegiumshouldn’thaveignoredit. Lead/ Supreme Court/ Appointment of Judges CJIRanjanGogoiisreportedlyofthe viewthatthedecisionofthe Collegiumnottorecommendaperson forappointmentdoesnotmeanthat heisnotsuitableforalltimetocome. DecisionsoftheCollegiumcouldbe reviewedbyasuccessiveCollegium.
  15. 15. | INDIA LEGAL | January 28, 2019 17 Twitter: @indialegalmedia Website: Contact: does not mean that he is not suitable for all time to come. Decisions of the Collegium could be reviewed by a suc- cessive Collegium, and reversed, if need be, he reportedly felt. While Gogoi may indeed be correct, it is not easy to ignore the aberrations in the process of decision-making by the Collegium which were noticed even ear- lier. Members of the Collegium are known to let their biases and prejudices regarding those who are eligible to pre- vail over objective considerations of their suitability for the Supreme Court. This has, in the past, played havoc with a judge’s chances of playing a meaning- ful role in the Supreme Court, let alone making it as CJI in due course. I n the Second Judges case, the nine- judge bench of the Supreme Court held in 1993: “Inter-se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects … It is, there- fore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained bet- ween them while making their appoint- ment to the Supreme Court … this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court.” Critics are, therefore, right in asking the CJI and the Collegium whether there is any strong and cogent reason to justify a departure from the order of seniority as envisaged in the Second Judges case, and if so, it must be shared with the public. But the CJI appears to have taken a stand that dis- closure of adverse material against a judge serving in the High Court could com- promise his continuance there, and therefore, should be avoided. This reason is convincing if there is supersession of one or two judges, or when a need is felt to elevate a not so senior judge to ensure geographical, social and regional diversity. But when the list of superseded judges in the all-India list of eligible High Court judges is so huge, as in the present case, misgivings are bound to arise as to whether there are strong and cogent reasons for departing from the principle of seniority. On January 12, 2018, four senior- most judges of the Supreme Court held a press conference to expose then CJI Dipak Misra’s “less than desirable” way of administering the Court and the Collegium posing a real danger to democracy. Questions continue to be asked a year after that press conference whether the current CJI Gogoi, who was part of that presser, has taken the necessary steps to inspire the confidence of the public in the Court and made it more transparent. The recent appointments to the Court are likely to add to the misgivings about the functioning of the Collegium and the apex court. JusticeSanjivKhannaisthe nephewofJusticeHRKhanna(left), whogavelandmarkverdictsinthe habeascorpus caseduringthe EmergencyandinKesavananda Bharati.But,hissuitabilityforthe SChasneverbeenindoubt. JusticeMaheshwari’s elevationwasstalledbythe CollegiumwhenJusticeJ Chelameswar(left)wasits member.AsChiefJusticeof KarnatakaHC,Justice Maheshwaridealtwiththe centredirectlyonadistrict judge’sappointment.
  16. 16. Supreme Court/ Dance Bars 18 January 28, 2019 ATE evenings will never be the same again in Mumbai with the Supreme Court overruling the Maharashtra government’s ban on dance bars in the state, allowing tips and alcohol inside dance bars. The Court, in its judgment, said that there can’t be a total prohibition on dance bars, asserting that there may be regulations but not total prohibition. The apex court, however, upheld cer- tain state laws governing dance bars, while weeding out others. It was the Indian Hotel and Restaurant Associ- ation and the Bhartiya Bargirls Union that had challenged certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurant and Bar Rooms and Protection of Dignity of Women (Working therein) Act, 2016, and the rules framed under the Act. The petitioners approached the Court to regulate how the dance bars would operate in the state. The Supreme Court bench compris- ing Justices AK Sikri and Ashok Bhushan gave the judgment, upholding some parts of the legislation, while quashing others. Section 8(4) of the said Act, which prohibits showering of cur- rency notes and coins on the dancers, has been partly struck down. The Court has allowed payment to dancers person- ally, saying: “We, therefore, uphold the provision insofar as it prohibits throw- ing or showering of coins, currency notes or any article or anything which can be monetised on the stage. How- ever, handing over of the notes to the dancers personally is not inappropriate.” The segregation of the bar room area from the hotel has also been quashed by the bench, saying there is no rationale or justification in imposing “such a condi- tion which appears to be quite unrea- sonable”. While quashing the condition of keeping such establishments 1 km away from an educational or religious institution, the bench took into account the “ground realities particularly in the city of Mumbai where it would be diffi- cult to find any place which is 1 km away from either an education institu- tion or a religious institution”. Also quashed was the condition that mandated the installation of CCTV cam- eras, holding it violative of the right to privacy. The Act had put a restriction on serving of alcohol in the premises, which was also set aside since it amounts to “moral policing”. The regulations might have been alleviated, but the true purpose had not been sidelined, the Court mentioned. “The present legislation is given a cloak of bringing regulatory regime to regu- late the places where there are dance performances. For this purpose, the impugned Act does not permit dance performances without obtaining licence under Section 3 of the Act. Further, it makes obscene dances a penal offence. No quarrel on this.” Therefore, the time restriction on such establishments has been upheld by the Court. Mentioning the operation hours of such dance bars being between 6 pm and 11.30 pm, the Court said, “we do not find it to be man- ifestly unreasonable”. It is the second time that the apex court has passed judgment on dance bars. In 2013, the Court had upheld the right of bar dancers to pursue their pro- fession after the state government banned girl dancers from performing in the city's bars. —By Naved Ahmed Dancing The Night Away Theapexcourtstrikesdownseveralprovisionsofstatelawsimposedin2016 thatplacedcurbsonthefunctioningofMumbai’soncefamousdancebars Twitter: @indialegalmedia Website: Contact: ASupremeCourtbenchcomprising JusticesAKSikriandAshokBhushan gavethejudgment,upholdingsome partsofthelegislation,while quashingothers. L
  17. 17. Supreme Court/ Compassionate Appointment 20 January 28, 2019 T is a settled principle of law that a child born of a void marriage cannot be treated as illegitimate. Yet, in a strange case—the centre, which ought to have applied this law in specific cases—was an appellant in the Supreme Court against a High Court verdict, which affirmed this sound principle. In Union of India vs VR Tripathi, the centre appealed against the judg- ment of a division bench of the Bombay High Court, delivered on April 1, 2016, in the Supreme Court. On December 11 last year, a Supreme Court bench of Justices DY Chandrachud and MR Shah dismissed the centre’s appeal as having no merit. In the case, the father of the respon- dent was employed as a technician for Central Railway at Mumbai. He had a second marriage during the existence of his first marriage and died in harness in 2009. The respondent in the case was a son from the second marriage. He appl- ied for compassionate appointment on the death of his father, but his applica- tion was rejected on March 6, 2012, by the Railways. Aggrieved, the respondent moved an Original Application before the Central Administrative Tribunal (CAT). The Tribunal held in favour of the respondent. However, the Railways sought a review and upon dismissal of this petition, the centre and the Railways instituted writ proceed- ings before the Bombay High Court. The High Court held that Section 16 of the Hindu Marriage Act (HMA), 1955, recognises the legitimacy of a child born from a marriage which is null and void under the provisions of Section 11. Under Section 11, any mar- riage solemnised after the com- mencement of the Act shall be null and void and may, on a peti- tion presented by either party against the other, be so declared by a decree of nullity if it contra- venes any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5. Section 5 (i) requires that neither party has a spouse living at the time of the marriage, while Section 5 (iv) requires that the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits a marriage bet- ween the two. Section 5 (v) requires that the parties are not sapindas of each other unless the custom or usage gov- erning each of them permits a marriage between the two. There were earlier judgments in sim- ilar cases in other courts. A circular issued by the Railway Board in 1992 dis- qualifying children born of a void mar- riage from being eligible for compas- A Legitimate Demand TheCourtheldthatapersonbornofavoidmarriageisentitledtosuchappointmentand ensuredthedignityofthefamilyofanemployeewhodiedinharness By Venkatasubramanian I Thefatheroftherespondentwasa Railwaysemployee.Hehadasecond marriageduringtheexistenceofthefirst marriage.Thesonfromthesecond marriagesoughtthejob. Anthony Lawrence
  18. 18. | INDIA LEGAL | January 28, 2019 21 sionate appointment was set aside by a division bench of the Calcutta High Court in Namita Goldar vs Union of India in 2010. In 2000, in Rameshwari Devi vs State of Bihar, the Supreme Court had upheld the entitlement of the family of a deceased employee to pen- sionary benefits notwithstanding the fact that he had contracted a second marriage. Given this legal background, the Bombay High Court found no rea- son to differ with the view of CAT. The centre went to the Supreme Court and in its submissions argued that compassionate appointment was not an alternative source of employment or recruitment; it is not a matter of a heri- table right and depends on the extant rules or schemes under which such ben- efits or facilities are envisaged. It further said that Section 16(3) of the HMA envisages that a child born from a mar- riage which is void under Section 11 has a claim only in respect of the property of the parents and no further. The centre also contended that the Supreme Court’s decision in Ramesh- wari Devi is distinguishable since pen- sion is a matter of right as a result of the previous service of an employee and therefore, represents an entitlement in the nature of property. The State, the centre argued, can deny compassionate employment to children of a void mar- riage, as a legitimate instrument of its policy to discourage bigamy. T he counsel for the respondent argued that while the centre could assert that a second spouse is not entitled to compassionate app- ointment, such a facility could not be denied to children from a second mar- riage once their legitimacy operates as a matter of law. In the Namita Goldar case, after its circular was struck down by the Calcutta High Court, the Railways did not appeal against it and implemented it. However, it brazenly brought in another circular on April 3, 2013, reiterating the earlier circular, contrary to the decision of the Calcutta High Court. The Supreme Court, relying on a pre- vious judgment, held that the reason behind a provision for grant of compas- sionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting from the death of the bread-earner. It is an excep- tion to the general rule that recruitment to public services should be on the basis of merit. The Court held that legitimacy of a child born from a marriage which is null and void is a matter of public policy. This is in order to protect such a child from the consequences of illegitimacy. The bench made it clear that it was not open to the State, while making schemes or rules, to lay down a condition which is inconsistent with Article 14 of the Constitution. The bench held that the effect of the Railways circular was that, irrespective of the destitution a child born from a second marriage of a deceased employee may face, compassionate employment is to be refused unless the second marriage was contracted with the permission of the administration. Such a condition of exclusion is arbitrary and ultra vires, the bench concluded. Any stipulation or condition which is imposed must have or bear a reasonable nexus to the object which is sought to be achieved, the bench held. Children do not choose their parents; to deny com- passionate appointment though the law treats a child of a void marriage as legit- imate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination, the bench added. The bench considered it improper on the part of the Railway Board to issue a fresh circular on April 3, 2013, reiterat- ing the terms of the earlier circular dated January 2, 1992, even after the decision in Namita Goldar, which attained finality. The Supreme Court directed the Railways to take a decision on the appli- cation of the respondent for compas- sionate appointment within three months from December 11, 2018. Through this judgment, the Supreme Court upheld the principle that discrimination between two classes of legitimate beneficiaries—legitimate children in this case—would defeat the whole purpose of ensuring the digni- ty of the family of an employee who died in harness, and was therefore unconstitutional. Twitter: @indialegalmedia Website: Contact: TheSCbenchofJusticesDYChandrachud(left)andMRShahsaidthatchildrendonot choosetheirparentsanddenyingcompassionateappointmentisdeeplyoffensiveto theirdignityandoffensivetotheconstitutionalguaranteeagainstdiscrimination.
  19. 19. Supreme Court/ Char Dham Project 22 January 28, 2019 Supreme Court bench of Justices RF Nariman and Vineet Saran recently gave the green signal to Prime Minister Narendra Modi’s Char Dham devel- opment project in Uttarakhand. The project proposes to provide all-weather connectivity to the four holy towns of Kedarnath, Badrinath, Yamunotri and Gangotri in the hill state. The petitioner in the case, Citizens for Green Doon, told the Court about the damage the project would cause to the environment. It argued that the environment impact assessment for the 900-km project had not been carried out and cautioned that the “blatantly illegal” project would leave the region vulnerable to ecological disasters like the 2013 floods in Kedarnath. The Supreme Court had, in October last year, stayed an order of the National Green Tribunal (NGT) which cleared the project. The Tribunal bench headed by NGT Chairman Justice AK Goel had said in its order of September 26, 2018, that it was “inclined to clear the project in view of the larger public interest and the country’s security in the construc- tion of the highway”. Following this order, Citizens for Green Doon appro- ached the Supreme Court which stayed the NGT order and sought a response from the central and state governments. Arguing for the petitioner in the Supreme Court, advocate Sanjay Parikh said that the order of the green tribunal bench contravened the apex court’s dir- ection of August 27 in which it asked the NGT chairman to assign “one clear day” to the original bench which had heard petitions concerning environmen- tal clearance pertaining to the project. The original bench comprised Just- ices Jawad Rahim and SP Wangdi and expert member Nagin Nanda. This bench had stayed the felling of trees for the project and reserved the case for final hearing on May 31. When Justice Goel took over as NGT chairman, the matter was listed for hearing before a bench headed by him. This prompted Citizens for Green Doon to move the Supreme Court. It pointed out an anom- aly—that the Char Dham project was approved by a bench which was differ- ent from the one which had originally heard the petition. While seeking the replies of the centre and Uttarakhand governments, Justices Nariman and S Abdul Nazeer of the apex court stayed the NGT judgment. Considered strategically significant, the project ran into its first obstacle when the Dehradun-based NGO filed a petition before the NGT in February 2018. The matter was heard for four months before the Tribunal reserved its decision. On September 4, the NGT referred the case to a larger bench. In the course of the hearing, the peti- tioner gave video evidence of environ- mental damage caused by violation of norms and debris dumping. Explaining how the National Highways Authority of India (NHAI) and the Ministry of Road Transport and Highways (MoRTH) were violating ecological norms, Himanshu Arora of Citizens for Green Doon was quoted as saying that “since Rocky Mountain High Thecontroversialproject whichaimstoprovide connectivitytotheholytowns ofKedarnath,Badrinath, YamunotriandGangotrihas beenclearedbythe apexcourtdespite ecologicalconcerns By Atul Chandra in Lucknow VULNERABLE ECOLOGY An all-weather route to the Char Dham is likely to ease travel disrupted by inclement weather A
  20. 20. | INDIA LEGAL | January 28, 2019 23 any road project beyond 100 km needs environmental clearance and environ- ment impact assessment, they divided the 900-km project into more than 53 segments. As a result, thousands of trees are being cut for this project, triggering the falling of several other trees.” That loss is never counted, he said. That the project was divided into 53 segments to avoid ecological bottlenecks was confirmed by the Union environme- nt ministry which said in its affidavit that the project did not require green clearance because none of its 53 stretch- es was more than 100 km long. This is in conformity with the ministry’s guide- lines for the expansion of existing high- ways less than 100 km in length. The NHAI and MoRTH argued that they had built retaining walls along the roads to prevent the muck from flowing into the Mandakini river valley, but the NGT found that the retaining walls wer- en’t enough. “When it rains, the entire muck goes down in the river. This doesn’t work,” the NGT said after watch- ing the video evidence. Citizens for Green Doon also pointed out the shifting stands of the centre when it came to describing the Char Dham project. While the MoRTH and environment ministry’s affidavits stated that “Char Dham is a programme and not a single project”, thus not requiring a single environmental clearance, the Union cabinet called it Chardham Mahamarg Vikas Pariyojna (Char Dham Highways Development Project), a sin- gle project. According to one report, the Uttarakhand government and MoRTH had separately applied for specific stretches for felling of 40,000 trees. T he Char Dham project was laun- ched by the prime minister on December 27, 2016. It is estimat- ed to cost `12,000 crore. Originating from Rishikesh, the highway will inclu- de long bridges and tunnels to eliminate slide-prone areas and will reach upto the India-China border. According to one source, 15 big bridges, 101 small bridges, 3,596 culverts and 12 bypasses are to be built under the project. Good roads in the region are considered of great strategic importance, given the heavy Chinese deployment. Also, one has to consider the high quality of roads built by China. To underline the significance of the highway, the Border Roads Organisation (BRO) told the NGT: “The road is extremely important from strategic point of view, as it is in close proximity to the China border…defence prepared- ness will get adversely affected in case the roads are not improved as per the requirement of defence forces.” The BRO also stated that “in the eventuality of any aggression, movement of heavy weapons, plants and equipments, artillery guns etc. would not be possible in case roads are not improved”. The BRO made these submissions in its 12-page affidavit filed in response to a plea filed by one Birendra Singh Matura and others against the violation of Bhagirathi Eco Sensitive Zone Notification in the name of road widen- ing work to connect Kedarnath, Badri- nath, Gangotri and Yamunotri. These border points are Nelang Valley, which is in India’s operational control in the Gangotri region and Barahoti Valley in the India-China border area, which also is in India’s control. Environmentalists are concerned about the denuding of mountains and displacement of the local population. RC Sharma, head of the environment science department in HN Bahuguna University, Srinagar, Garhwal, was quot- ed as saying: “You can’t cut the hill verti- cally at 90 degrees as they are doing now. If the base is removed the moun- tain will fall, landslides will naturally happen, and we are already watching this happening. There are places in the hills where we never saw landslides, but since this construction started, numer- ous landslides are happening.” These and many other similar con- cerns have been brushed aside as project completion is going full steam ahead. However, it is unlikely to be over before the 2019 Lok Sabha elections. In fact Mansukh L Mandaviya, the Union min- ister for road transport and highways, told the Lok Sabha in March 2018 that the project is targeted to be completed by March 2020. Till then, it will be Rocky Mountain High. Twitter: @indialegalmedia Website: Contact: TheBorderRoadsOrganisationhas toldtheNGTthattheroadisinclose proximitytotheChinaborder,and defencepreparednesswillgetadversely affectedincasetheroadisnotimproved.
  21. 21. Supreme Court/ Encounter Killings 24 January 28, 2019 N an interview to a national news channel in June 2017, barely three months after he took charge as the chief minister of Uttar Pradesh, Yogi Adityanath said, “Agar apradh karenge toh thok diye jayenge (if they commit crimes, they will be shot down).” A year and a half down the line, it is clear that his words and the policy behind it have had a far more disturbing impact than imagined. By the state government’s own ad- mission, January 2018 saw the police conducting 1,038 encounters in which over 32 people were killed while 238 were injured. The highest number was reported from the Meerut zone where 569 encounters took place, followed by Bareilly, Agra and Kanpur. There were 51 encounters in Gorakhpur, the home The Gun Toting Yogi TheUttarPradeshgovernment’sencounterpolicyhasmet withwidespreadcondemnation,forcingtheSupremeCourtto examineapleaforacourt-monitoredprobe By Govind Pant Raju in Lucknow I ENCOUNTER STATUS? (Top) Uttar Pradesh CM Yogi Adityanath on a surprise visit to Police Lines in Lucknow UNI
  22. 22. | INDIA LEGAL | January 28, 2019 25 turf of the chief minister. However, the Adityanath government’s encounter pol- icy has been severely criticised by vari- ous human rights outfits as well as opposition parties. “The Yogi Adityanath government thinks that by adopting strict measures, crime can be brought under control and that's why they have adopted ‘encounter’ as state policy. But so far, the law and order has shown no improvement. To terrorise the opposition, various laws are also being misused by the government,” SR Darapuri, ex-IG (UP police) and human rights activist, told India Legal. Pointing to the misuse of the Na- tional Security Act (NSA), the former cop said, “More than 150 people were booked under NSA, most of them Muslims. What’s more, a close look at the encounter data shows that a majori- ty of victims are Muslims followed by Dalits, OBCs and weaker sections of society, while the number of actual hardened criminals being gunned down is extremely low. They are also suppress- ing those sections who are not in line with the ruling party. The minorities and Dalits are feeling terrorised in Uttar Pradesh.” I t is not just human rights activists. Political parties across the spectrum have also targeted the Adityanath government on its policy. Samajwadi Party chief Akhilesh Yadav remarked recently: “The BJP is misusing the Uttar Pradesh police, which is inflicting tor- ture on the people of the state and creat- ing fear among them. It is the duty of the government to see that everyone gets justice.” Condemnation has also come in from Shivpal Yadav’s party which has sent two memoranda to Governor Ram Naik while the Congress party has termed Aditynath’s rule as “en- counter Raj”. These protests were so far brushed aside by the government but with the apex court now stepping in, the state government has no option but to sit up and take note. Taking cognisance of the matter, the Supreme Court agreed to “Everyone should be guaranteed securi- ty, but those who want to disturb peace of society and believe in the gun, should be given the answer in the language of the gun itself,” said Yogi Adityanath, on February 9, 2018. The Uttar Pradesh chief minister is, if nothing else, a man of his words. As per the official records of the state govern- ment, 1,100 police encounters have taken place in the state in the 10 months since he took over in March 2017. The chief minister on several occasions has vehemently advocated the mass encounters and the unchecked powers of the police under the head, “Operation Clean”. Recently, while considering the “seri- ousness” of the encounter killings in the state, the Supreme Court in a PIL acknowledged the need for a detailed hearing and listed it for February 12. The petition was put up before the bench comprising (above, from left) Chief Justice Ranjan Gogoi and Justices Ashok Bhushan and SK Kaul and was filed by People’s Union for Civil Liberties, alleging that the encounter killings in the state are a blatant violation of the law and protection available to citizens under Article 21 of the Constitution. The plea, while referring to the guide- lines and directions laid down by the Supreme Court in PUCL vs. State of Maharashtra in 2014, stated that “Each such encounter is required to be investi- gated on the basis of FIR, followed by a Magisterial Enquiry and thereafter, a criminal trial in accordance with law.” The NHRC took cognisance of the state- ment of the chief min- ister dated November 19, 2017, and noted that the police is “mis- using their power in the light of an unde- clared endorsement given by the higher ups”. The petitioner contended that this endorsement of police encounters by the chief minister is in vio- lation of the right to life guaranteed to all. The petition also sought a court-mo- nitored investigation or an investigation under a monitoring committee headed by a retired Supreme Court judge. However, the UP government, repre- sented by senior advocate Mukul Roh- tagi, rebutted the claim, saying that in all the encounters that took place last year, the procedure set up by the Supreme Court was complied with. He stated that 30 of 48 suspected criminals killed in the last year belonged to the majority com- munity, thus denying any communal hue to the situation. Last week, after four UN human rights experts expressed concerns over 59 encounter deaths in 22 months from March 2017, the office of the United Na- tions High Commissioner for Human Rights had also red-flagged the encoun- ters. “We are extremely concerned about the pattern of events: individuals allegedly being abducted or arrested before their killing, and their bodies bearing injuries indicative of torture,” the UN experts said. The government has cited the encounters as proof of its resolve to rid the state of criminals and anti-socials. “Sympathy for criminals is dangerous in a democracy,” Adityanath had said last year but in giving the issue “serious consideration” and agreeing to examine the issue in detail, the apex court is seeking to restore the express constitu- tional provisions and thus the true spirit of democracy. —Shivani Bhasin SupremeCourtshowsconcern forencounterkillings
  23. 23. Supreme Court/ Encounter Killings 26 January 28, 2019 examine in detail a plea seeking a court- monitored CBI or SIT probe into alleged police encounters and killings in the state. A bench headed by Chief Justice Ranjan Gogoi and Justices Ashok Bhushan and SK Kaul perused the material on record and said issues raised in the petition by NGO People's Union for Civil Liberties (PUCL) required “serious consideration” and has fixed the hearing for February 12. Senior advocate Mukul Rohatgi, appearing for the Uttar Pradesh government, however, claimed all norms and procedures were followed by the state administration. E arlier, the top court had sought a response from the state govern- ment on the PIL filed by the NGO, alleging that there were about 1,100 encounters in 2017 in which 49 people were killed and 370 injured. The plea said that the families of those killed or injured also be granted compensa- tion. “By this petition, the petitioner is bringing to the notice of this court inci- dents of massive administrative liquida- tions taking place in the state of Uttar Pradesh in blatant violation of the rule of law, legal and constitutional protec- tion available to the citizens, in particu- lar, regarding life under Article 21 of the Constitution,” it said. The NGO, in its plea, also referred to news reports quoting Aditya- nath, his deputy, Keshav Prasad Maurya, and ADG (law and order) Anand Kumar, justifying encounter killings of criminals in the state. It sought a probe into the encounters by an inde- pendent agency—the CBI or a SIT comprising police officers Despitethecriticism,UPCM Adityanathhasmaintained thatthecrackdownwillcon- tinueuntilcrimeiscompletely wipedoutfromthestate.He saysthatitisunfortunate thatsomepeopleareshowing sympathytowardscriminals. September 29, 2018: Apple executive Vivek Tiwari was shot dead by a police- man in Lucknow. Tiwari was on his way to drop a colleague in his SUV and allegedly brushed against the bike of two constables when asked to stop for checking. He was shot at by constable Prashant Chaudhary. The SIT probing the case held Chaudhary guilty of killing Tiwari. February 8, 2018: A suspected criminal, Manoj Kumar Singh, was shot dead by the UP police in Hariharpur village, Sitapur district. The police claimed that he was a wanted criminal in several cases and killed in cross-firing after a team chased him. February 3, 2018: Gym instructor Jitendra Yadav from Noida’s Parthala Khanjarpur had an altercation with a sub-inspector and three constables. This led to him being shot at, with the bullet piercing his neck and damaging his spinal cord. He is now a paraplegic. One police officer was arrested and three suspended. January 17, 2018: Bagga Singh, 40, was killed in an encounter in Dulhipurva. The STF said it had received information that Bagga and his associate, who had a bounty on his head for murdering a crim- inal, would be passing through that area. January 9, 2018: An individual, Channu Sonkar, was killed in Jahanaganj. The police version was that he and another person were fleeing on a bike after trying to rob a woman and met with an acci- dent. While being taken to the hospital, Sonkar snatched a revolver from a policeman and escaped, but was shot in an exchange of fire. December 9, 2017: Aslam, who sold Questionable deaths UP has been in the news repeatedly for the huge number of encounter deaths. Here are some that took place over the last two years: FAKE OR REAL? Accused in a murder case being taken to a police station in Mathura after their arrest in an encounter UNI
  24. 24. | INDIA LEGAL | January 28, 2019 27 of “integrity and who have not served in the state of Uttar Pradesh”. Quoting the figure provided by the state government to the NHRC, it said 49 persons died between January 1, 2017, and March 31, 2018. Even after March 2018, the encounters did not stop. Four months ago, eyebrows were raised when Aligarh police woke up local reporters early one morning to cover a live encounter. The biggest reason for the loss of the Akhilesh government in Uttar Pradesh was the lack of law and order. On the very first day, Adityanath had assured that he would establish the rule of law in Uttar Pradesh. In his first address, the chief minister had said that in Uttar Pradesh, there is only one place left for criminals and that is jail. He said, “Those who are not in jail, they will either be out of Uttar Pradesh or will learn it the hard way.” Despite the criticism, Adityanath has maintained that the crackdown will con- tinue until crime is completely wiped out from the state. The BJP government in a booklet released on its first anniversary also claimed that in its first year in power, instances of crime have decreased as a result of the crackdown. The govern- ment says instances of dacoity have come down by 5.7 percent, murder by 7.35 percent, road hold-ups by 100 per- cent, abduction by 13.21 percent, atroci- ties against Dalits by 16.41 percent and arson by 29.73 percent. I n a reply to a question by a BJP MLC in the Legislative Council on February 15, 2018, Adityanath said, “It is unfortunate that some people are showing sympathy towards criminals. This is dangerous for democracy. The encounters will go on.” DGP Singh insists, “Do not call these ‘encounters’. It is a crackdown on criminals. So far, we have arrested over 3,000 criminals. It was necessary to mount such pressure on them and it has definitely acted as a deterrent.” In September last year, to encourage encounters, the government allowed senior police officers to announce bigger bounties on criminals—a senior superin- tendent could now announce a reward of `15,000 instead of just `5,000; an IG could now announce `1 lakh instead of the earlier `25,000. While the state police and the gov- ernment swear by a zero-tolerance poli- cy towards crime and criminals, there is a lurking suspicion about whether it has become a new metric to mask ulterior motives. Unsurprising but perhaps more dangerous is the fact that such zero-tol- erance rhetoric often ends up as a cover for the gross misuse of power. With the Supreme Court now stepping in, it remains to be seen if the state government sees some virtue in trying to be a little less intolerant. Twitter: @indialegalmedia Website: Contact: “TheYogigovernmentthinksthatby adoptingstrictmeasures,crimecanbe broughtundercontrolandtheyhave adopted‘encounter’asastatepolicy.But lawandorderhasnotimproved.” —SRDarapuri,ex-IG(UPpolice) andhumanrightsactivist “TheBJPismisusingthe UttarPradeshpolice,whichisinflicting tortureonthepeopleofthestate andcreatingfearamongthem.Itisthe dutyofthegovernmenttoseethat everyonegetsjustice.” —AkhileshYadav,SamajwadiPartychief chowmein and samosas in a village in Shamli, was shot dead by the police at Dadri, Noida. The police claimed that he was plotting a big crime and shot dead in an exchange of fire. October 23, 2017: Furquan, 33, a band- saw-machine unit worker in Shamli, was killed as, according to the police, he was linked to dacoities in Saharanpur, Shamli and Muzaffarnagar. He had been released a few days earlier after spend- ing seven years in Muzaffarnagar jail as an undertrial. His family claimed that he was with them when the dacoities “took” place. Despite bullet marks, his bones were found broken. October 2017: Sumit Gurjar, who was picked up by the Greater Noida police from Chirchita village in Baghpat, was lodged in a police station in Noida and killed in an exchange of fire. September 28, 2017: Mansoor was picked up by the police in plainclothes from his village in Saharanpur. Later, the Meerut police said he was wanted in more than 20 cases and had been shot dead in Pallavpuram area. The police also claimed he was in possession of a foreign-made revolver. September 8, 2017: Nadeem, a cloth vendor, was picked up by the police after an altercation with a jeweller. Two days later, he was shot dead in an encounter in Kakroli jungle in Muzaffarnagar.
  25. 25. Courts/ Ram Rahim Conviction 28 January 28, 2019 ITH a CBI court awarding a life sen- tence to 51-year-old Dera Sacha Sauda chief Gurmeet Ram Rahim Singh and three others for the murder of a journal- ist in 2002, the self-styled godman’s fate is sealed. He is also serving 20 years behind bars for raping two sadhvis. The judge ruled that the life sentence would not run in concurrence with the earlier sentence of 20 years, but will start once the earlier term ends. He also faces fur- ther sentencing in a case of alleged cas- tration of several of his followers on the promise of salvation. Rahim, who had a blind following running into lakhs, is currently lodged in the high-security Sunaria Jail at The latest conviction pertained to the gunning down of a Sirsa-based journal- ist, Ramchandra Chhatrapati. He was shot on October 24, 2002, and suc- cumbed to his injuries a month later. The firing took place outside his house after his Hindi evening daily, Poora Sach, published an anonymous letter in which tales of sexual exploitation of wo- men at the Dera headquarters in Sirsa were highlighted. Prior to the attack, Chhatrapati had written to the local po- lice about the threats he had been re- ceiving from the Dera authorities. Des- pite his requests, no security was provid- ed to him. Fortunately for the police, one of the shooters was nabbed immediately by locals. The other managed to flee after the shooting but was subsequently W Just Desserts VERITABLE FORTRESS (Above) The scene outside the CBI court in Panchkula on the day of the verdict; Gurmeet Ram Rahim Singh being taken to Rohtak jail after his conviction for raping two sadhvis Givenalifesentenceforthemurderofajournalist,inadditionto20yearsforrapingtwosadhvis,this godman’sfateissealed.Healsofacessentencinginacaseofallegedcastrationofseveralfollowers By Vipin Pubby in Chandigarh Rohtak. Such is the apprehension of his diehard followers creating a ruckus and indulging in violence that the entire hearing in the case was done through video conferencing. Public memory is still fresh about the massive violence that followed his conviction in the rape cases. The violence had led to the death of about 40 of his followers in police action and huge damage to property. The Haryana government had specifically requested the CBI court, which had been hearing the cases against him at Panchkula, to make an exemption from the practice of the accused facing the judge to hear the ver- dict and the sentence. With security arrangements beefed up across the state, the orders were passed without any untoward incident. UNI
  26. 26. | INDIA LEGAL | January 28, 2019 29 The CBI court in its verdict held Rahim and his former manager, Krishan Lal, guilty under Section 120B (criminal conspiracy) read with Section 302 (mur- der) of the IPC. Kuldeep Singh and Nir- mal Singh were held guilty under Sec- tion 302 (murder) of the IPC read with Section 120B (criminal conspiracy). Kuldeep Singh and Krishan Lal were also held guilty under Section 25 and Section 29 of the Arms Act, respectively. T he CBI, in its charge sheet, indi- cted all the convicts. “The investi- gation conducted by the CBI has, thus, established that accused Baba Gurmeet Singh, chief of Dera Sacha Sauda, Sirsa, accused Krishan Lal, Pra- bandhak of Dera Sacha Sauda, and acc- used Kuldeep Singh and Nirmal, car- penters at Dera Sacha Sauda, entered into a criminal conspiracy on or before October 23, 2002 to kill Ram Chander Chattarpati, a journalist of newspaper Poora Sach, Sirsa and in furtherance thereof, accused Krishan Lal gave his licensed revolver and a walkie-talkie of the Dera to accused Kuldeep Singh and Nirmal Singh in the presence of Baba Gurmeet Singh. Thereafter, both Kul- deep Singh and Nirmal Singh shot at Ram Chander Chattarpati on October 24, 2002 at his residence at about 7.30 pm resulting in his death subsequently on account of the said gunshot injuries,” the CBI court said. Recalling the sequence of events, Khatta Singh told the court: “On October 23, 2002, Gurmeet Ram Rahim returned after attending a gathering of his followers in Jalandhar when the then Dera manager, Krishan Lal, showed him the newspaper Poora Sach. The paper, owned by Ram Chander Chhatarpati, carried a report accusing Gurmeet Ram Rahim of sexually exploiting women at the Dera. Kuldeep Singh and Nirmal Singh were also with Krishan Lal. Gurmeet Ram Rahim lost his cool and ordered to ‘silence the voice of the man’ behind the newspaper. Next day, on October 24, 2002, I received a call from my house that the journalist had been shot at.” Khatta Singh said he received “num- erous blood-stained threat letters” from Dera followers during the course of the trial. He was provided security cover by the Punjab police. Incidentally, Khatta Singh had in 2012 changed the state- ment he gave against the Dera chief in 2007. He later wanted to record a fresh statement, but a CBI court in Panchkula declined his request. In 2017, he moved the Punjab and Haryana High Court through advocate Navkiran Singh. The Court allowed him to record a fresh statement in the trial court. Later, the defence counsel of the accused chal- lenged the High Court decision in the apex court, which rejected the plea of the defence. The self-styled guru has cooked his own goose, it seems. Twitter: @indialegalmedia Website: Contact: caught. A murder case was registered in 2003 against two employees of the Dera, Nirmal Singh and Kuldeep Singh, for the shooting. Even though Chhatra- pati’s son, Anshul, demanded that the Dera chief’s name be also included in the FIR, it was not done. He subseque- ntly petitioned the Punjab and Haryana High Court for a CBI investigation into the shooting. It was accepted by the Court in November. The murder case was later handed over to the CBI. Rahim’s former driver, Khatta Singh, had earlier told the police that it was the Dera chief who had ordered Chhatra- pati’s killing. After investigations, the CBI filed a charge sheet in 2007 with Khatta Singh as a key witness. The case carried on for long due to delaying tactics employed by the advo- cates for the accused. This led to the pri- mary accused, Nirmal Singh, getting bail in January 2017, 14 years after he was arrested. The other accused, Kuldeep Singh, had already been grant- ed bail shortly after the initial arrest. The Dera, which has scores of ashrams in various states and abroad, had its main support base in Punjab and Haryana. Politicians of all hues, ranging from the Congress to the BJP to the Shriomani Akali Dal, used to flock to the Dera headquarters in Sirsa to seek Rahim’s “blessings” and support before elections. The Dera supported the Congress in the 2007 assembly polls, but in 2012 it chose to remain neutral and followers were left to decide on their own. In the 2014 Haryana assembly elections, how- ever, the Dera came out in full support of the BJP. The BJP won these elections for the first time ever, but it fell out with the Dera chief after he apparently rub- bed party chief Amit Shah the wrong way. It is believed that the Dera chief had been taking the credit for the BJP victory in the state rather than giving the credit to Prime Minister Narendra Modi. The Haryana government en- sured that he was escorted to the courts from his base in Sirsa to hear the sen- tencing in the sadhvi rape case. JUSTICE AT LAST (Left) Ramchandra Chhatrapati, whose news- paper published a letter on sexual exploitation of women at the Dera headquarters
  27. 27. Courts/ Release of Prisoners 30 January 28, 2019 N a piquant situation, the fate of 209 prisoners in Kerala hangs in the balance. In 2011, the previous LDF government had ordered the premature release of prisoners who had completed 10 years in jail. In a recent development, the Kerala High Court has quashed this order. However, the present LDF govern- ment has said that it is impractical to bring back those who were released more than seven years ago. The full bench of the High Court comprising Chief Justice Hrishikesh Roy and Justices K Abraham Mathew and AK Jayasankaran Nambiar directed that the proposal for premature release of 209 prisoners shall be examined afresh within six months. In 2011, the government of Chief Minister VS Achuthanandan had invoked Article 161 of the Constitution and ordered the premature release of 209 prisoners who had completed 10 years’ imprisonment or more. Many writ petitions were filed challenging this move by the government. Meanwhile, Chief Minister Pinarayi Vijayan’s private secretary and CPI(M) leader MV Jayarajan has made it clear that the government will move the Supreme Court challenging the High Court verdict as it is an encroachment on the state’s powers. The High Court had found that less than five of the released prisoners who had been sentenced to life terms had completed 14 years. Surprisingly, there were over 100 convicts who had spent less than 10 years among those released (See box). In 1978, the government had brought in an additional “A” provision in Section 433 of the Code of Criminal Procedure (CrPC). In Maru Ram vs Government of India, the Supreme Court said that for life term, incarceration would be till the end of life. It made it clear that remis- sion was not a privilege of the convicted. However, several judicial commis- sions had recommended remission for sentenced persons. But they also said that there should be utmost scrutiny while granting remission and such con- I Back to Jail? Anil Shakya/ Representative image TheKeralaHighCourthasquashedthe prematurereleaseof209prisonersby thestategovernmentasitfoundtoo manyanomaliesintheprocedure.The governmentwillnowmovethe SupremeCourt By NV Ravindranathan Nair in Thiruvananthapuram Following the High Court order, the present government has started contact- ing the prisoners after collecting their addresses from the Department of Prisons. It has been pointed out that some of these prisoners have died and some are settled in other states or have even left the country. However, the High Court has not insisted on taking the released prisoners into custody urgently as many of them had not been impleaded in the writ peti- tions. But home department sources told India Legal that in view of the prac- tical difficulty in bringing them back, it had decided to trace them immediately. Officials say that as the High Court had ordered that the activities of the released prisoners in the last seven years be examined in detail during the review, it is important to trace them immediately. Some of the convicts released were linked to political parties. The home department has said that none of the prisoners were involved in any crime or got convicted since their release in 2011.
  28. 28. | INDIA LEGAL | January 28, 2019 31 required facilities for the prisoners. The files also revealed that retention of prisoners in jail was becoming expen- sive for the state and there was no necessity to retain prisoners beyond 10 years when they had reformed and a threat to society did not appear proba- ble. The Court noted there was no con- sideration of the case of each prisoner vis-à-vis special circumstances that called for a departure from the mandate of Section 433 of the CrPC. The bench observed: “Our scrutiny of the files reveals that the only material available before the Council of Ministers was the Cabinet note, that was put up together with the statement showing the actual period of imprisonment under- gone by the prisoners, the gist of the case that led to the conviction, and remarks showing whether they had been recommended for a premature release by the police authorities, probationary officers or both and whether or not they fell within the excluded categories of prisoners as per the guidelines formulat- ed by the state government. There is nothing to suggest that the Council of Ministers was informed of the particular circumstances that warranted a recom- mendation for premature release of a prisoner who had an adverse report from either the police authorities or the probationary officer and a favourable report from the other. Similarly excep- tional factors that were taken into account for exempting the prisoners concerned from the rigours of 433A of the CrPC were also not made available before the Council of Ministers or for that matter before the Governor.” It added: “In our view, the said laps- es on the part of the state government would vitiate the impugned government order and the approval granted to it by the Governor, since the exercise of con- stituent power under Article 161 of our Constitution by high constitutional functionaries must take note of the effect of the decision on the family of the victims, the society as a whole and precedent it sets for the future.” The Court clarified: “We make it clear that if no decision is taken by the functionaries under Article 161 within the said period of six months, it will be deemed that there is no exercise of power under Article 161 in favour of prisoners concerned and steps shall be taken to reincarcerate such prisoners for serving out the remainder of their sen- tence.” The High Court verdict has come as a rude shock to the government which wanted to grant concessions to convicts involved in political killings. While pressure is mounting on it from its party villages in Kannur (where many political killings have taken place) to grant premature remission to the convicts, the Court verdict will dissuade it from doing so. cessions should not be given to those who have committed heinous crimes against women and children. T he High Court said: “The exercise of constituent power under Article 161 of the Constitution by high constitutional functionaries must take note of the effect of the decision on the family of the victims, the society as a whole and precedent it sets for the future.” During the hearing, the Court had called for files from the state govern- ment to examine the procedure followed while issuing the order releasing the prisoners. Perusing these files, the bench noted that the selection of prisoners for premature release was based on the finding by the government that jails in the state were overcrowded and it was getting difficult to provide minimum TheHighCourtcomprising (fromleft)ChiefJustice HrishikeshRoyandJustices KAbrahamMathewandAK JayasankaranNambiar directedthattheproposal forprematurereleaseof 209prisonersshallbe examinedafreshwithin sixmonths. Twitter: @indialegalmedia Website: Contact: Questionablereprieve Following are the exact number of prisoners released in 2011 from various jails in Kerala to constitute a total of 209: Nettukaltheri Open Jail, Thiruvananthapuram: 111 Kannur Central Prison: 45 Cheemeni Jail: 24 Poojappura Central Prison in Thiruvananthapuram: 28 Poojappura Women’s Prison: 1
  29. 29. Courts/ Bengaluru Flyover Project 32 January 28, 2019 HIS is one bridge too far for Bengaluru. Despite the Garden City having light- ning-fast data speeds which help it rake in bil- lions, it has a hardware problem: its eight million vehicles jostle for space on its clogged roads. An attempt to ease these jams, however, has not fructified as the Karnataka High Court has ruled that the Bengaluru Development Authority (BDA) cannot go ahead with its steel flyover project without seeking environmental clear- ance from the State Environment Impact Assessment Authority (SEIAA). This project was shelved by the pre- vious Congress government. However, there were hopes of it being revived when Bengaluru Development Minister and Karnataka Deputy Chief Minister G Parameshwara said that the government rush—the passenger traffic is expected to grow three-fold in the coming deca- de—with a BDA plan to build a steel fly- over to reduce travel time to the airport. It suggested a six-lane bridge, 6.7 km long, between Basaveshwara Circle and Hebbal Junction, which it hoped would cut time significantly. But some citizen groups were up in arms as the project involved cutting trees and also due to the high cost of mounting the 60,000-tonne steel bridge. After a slew of campaigns against it, the project ground to a halt. Opposition to the project came from the likes of former Supreme Court judge Santosh Hegde and Rajya Sabha MP Rajeev Chandrasekhar who backed an organisation that went to the High Court in October 2016. George saw it as an attack on his government by the Opposition as he claimed that the BDA had consulted experts from IIT Madras and IISc Bangalore. For every tree cut, the BDA said it would plant more trees. But that T Thou Shalt Not Steel ENVIRONMENTAL CONCERNS A series of protests had led the Siddaramaiah government to drop the project earlier Aflyoverwhichwasmeantto easethecity’snotorioustraffic hasrunfouloftheKarnataka HighCourtwhichhasdirected theBengaluruDevelopment Authoritytoseek environmentalclearancefirst By Stephen David in Bengaluru Shruthi Mohany/your story was mulling whether to review the project. Efforts by successive governments and even the wealthy private sector have not fructified to get the city a well-con- nected, seamless public transport sys- tem. While the state-run Bengaluru Metropolitan Transport Corporation runs a fleet of 6,500 buses across 2,000 routes, the eight-year-old 43-km Bengaluru Metro rapid transit system carries five lakh riders across its two lines daily. Ride-hailing service apps have helped cut some costs and time, but the city’s traffic jams see no signs of ending soon. One of the key stretches that BDA identified to ease traffic was a stretch from Kumara Krupa area to Hebbal Junction, one of the main thoroughfares going to the Kempegowda International Airport. With almost 27 million passen- ger footfalls for 2017-18, the airport has already become the third busiest in India. It has 75,000-80,000 passenger arrivals and departures on a single day. Around 2016, the Siddaramaiah-led Congress regime, under Bengaluru Development Minister KJ George, came up with the plan to beat the airport
  30. 30. | INDIA LEGAL | January 28, 2019 33 Siddaramaiah’s support is crucial for Parameshwara to go ahead with the project after due procedures. After the Karnataka High Court observation, he said he would direct the BDA to seek environmental clearance from the SEIAA before going ahead with the project. He also took to Twitter and said that due procedures would be followed to start the construction of the bridge. T he present chief minister, HD Kumaraswamy, had opposed the project when he was in the Opposition, but has now changed his tune. He told the media recently that as chief minister, his first priority was to ease the traffic congestion in the city and it didn’t matter whether it was a steel flyover project or any other kind of infrastructure intervention that would help find a solution to the traffic jams. While the BDA is putting together a complex set of papers and documents to get a nod from the SEIAA, a coalition of citizen groups has sent an appeal to the latter against the steel flyover project apart from planning a series of protests, online and offline, like the ones in 2016 and 2017 which led to the Siddaramaiah government dropping the project. According to those opposed to the steel project, the SEIAA may have to consider whether it is in violation of the Karnataka Town and Country Planning Act and any other court orders. Citizen groups planning novel protests like the last time—be it mockumentaries on YouTube or human chains—will have to steel their nerves again to mount their opposition. With public pressure mounting, the minister for the city’s development may find it beneficial to prod his officials and agencies under him to come up with a faster, reliable, integrated and sustain- able public transport system like in Singapore or London. With both sides of the project sharp- ening their lines of attack, the steel flyover project may take a while to take off. Meanwhile, Bengaluru’s citizens will have to get used to spending mind- numbing hours on the choked roads. Twitter: @indialegalmedia Website: Contact: OppositiontotheprojectcamefromthelikesofformerSupremeCourtjudge SantoshHegde(left)andRajyaSabhaMPRajeevChandrasekharwhobackedan organisationthatwenttotheHighCourtinOctober2016againsttheproject. didn’t cut ice with the groups that vehe- mently opposed it. “What the government must do now is to fast-track the Metro line work and increase the number of buses rather than spend almost `2,000 crore for such a small stretch,” said R Ashwini, a stu- dent volunteer and a regular Metro rider, to India Legal. “The government must work 24x7 and increase the Metro lines to cover the entire city,” he said. The first red flag against the steel fly- over came from the National Green Tribunal (NGT) which wanted the BDA to seek environmental clearance from the SEIAA. The NGT heard the submis- sions of the BDA, the state of Karnataka and the steel flyover project contractor, Larsen & Toubro. One of the groups that had opposed the project sought a third- party analysis on the environmental impact due to the construction of the steel bridge. Former Chief Minister Siddaramaiah had claimed that the project was totally transparent, while the Opposition alleged it was another scheme to siphon off funds for the 2018 polls. He claimed that the steel bridge was proposed in 2010 itself and announced in the 2014- 15 budget. TRAFFIC WOES Long snarl-ups on Bengaluru roads are a daily menace