India legal 31 December 2015

AstheCongressgoesonthewarpathin
defenseofitsFirstFamilyinthe
NationalHeraldcontroversy,legislation
comestoafullstop
AjithPillaiexaminesthenationalfallout
Venkatasubramanianuntanglesthelegal
intricacies
Political
Paralysis
NDIA EGALL
December 31, 2015 `100
www.indialegalonline.com
I
ByNEETA KOLHATKAR
BhaigetsnewJaan
STORIES THAT COUNT
26
PAPIA
SAMAJDAR
Legal
ownership
race in
space 70
LAW
TWEAKED
SO
BEATLES
CAN LIVE
ON IN
RISHIKESH 58
18
TS THAKUR
Chief Justice
speaks out
on arbitration
42

the progress towards a better world.
But does prayer work for all? Actually,
through a process of philosophical introspec-
tion, historical experience and practical
necessity over the ages there have evolved—
simultaneously with the evolution of the
human species—formulae prescribed for
fighting ourselves out of this black hole into
the universe of greater enlightenment. It
is my belief that evolution’s ultimate destina-
tion is greater harmony, peace and enlighten-
ment. If the human species is not to perish, it
must pursue ethics which is a compulsion of
evolution.
T
he formulae I speak of are not the reli-
gious beliefs of ascetics or religious
pathfinders—even though many of
them may have their origins in religious texts
and sermons—but the down-to-earth enunci-
ation and application of precepts by men and
women of wisdom designed to make all
humankind reach out to and follow “eternal
truths” which will make us better citizens of a
better world.
One all-encompassing precept is that of
human rights which time and again finds
utterance in various cultures and in various
forms. In ancient India, Raj Dharma bound
all kings to bow to basic principles of justice.
It was a version of what we now call the Rule
of Law, the gold standard which differentiates
democracies and republics from authoritari-
an regimes, absolute monarchies and banana
republics.
VER since the United Nations adop-
ted the Universal Declaration of
Human Rights in 1948, December
10 is observed every year to memori-
alize this remarkable milestone in
the journey of humankind towards the goals
of dignity, freedom, equality of opportunity
and social and economic justice for all. The
international covenants adopted by the
United Nations—with India as a signatory to
both—are the International Covenant on
Economic, Social and Cultural Rights and the
International Covenant on Civil and Political
Rights. Formalized in 1966, these pledges
actually commit the world to uphold what are
perhaps the highest and noblest values of
human civilization as articulated by saints,
sages, philosophers, revolutionaries and
political visionaries.
Today’s reality, notwithstanding these
goals, is that we watch with helpless horror
the chaos, blood-letting, massacres, lack of
justice, inequalities and the spreading culture
of impunity that prevails in every part of the
globe. If one has any belief in the ancient
Indian theories of yugas (eons), then surely
what prevails today is the kalyuga—the dark
eon—ruled over by dark knights.
So what do we do? Simply wring our
hands or hold our heads in distress and pray
to the heavens for relief? Prayer may be com-
forting and may bring on a personal sense of
psychological calm. The practice may even
transform you into a better human being and
the more the “better human beings”, the more
LETTER FROM THE EDITOR
KALYUGA AND
THE RULE OF LAW
INDERJIT BADHWAR
E
4 December 31, 2015

lawyers or even basic justice. Hundreds of
thousands languish without trial, without
court-framed charges in jails. This makes a
mockery of the very fundamental concept of
the Rule of Law without which Human
Rights are nothing but a mirage.
Religious hatred-inspired murders, police
brutality, extra-judicial killings, the misuse of
the law to protect criminals and send inno-
cents and political opponents to jail, fake
encounters, torture by police…they are
reported liberally in the Indian press.
The silver lining is that they are reported
by a relatively free press and from social and
political platforms through the exercise of
free speech and peaceful assembly.
So what should Indians do to observe
Human Rights day? They can study the UN’s
pronouncements and make solemn speeches.
Or they can express their gratitude to their
own founding fathers by ensuring that they
exercise the freedoms they have been given to
fight for the preservation of the Rule of Law
and freedom and dignity for all.
Some of the best prescriptions to fight
ourselves out of many of the evils of Kalyuga
exist in front of our very noses—in the Indian
constitution.
In England, Raj Dharma has its ori-
gins in King John’s Magna Carta of
1215. One of the most important doc-
uments in history, it guaranteed the
people certain rights and bound the
king to certain laws at a time when
England was mainly operated on a feu-
dal system of land ownership. In
ancient Greece, the Big Three—Soc-
rates, Aristotle and Plato—were philo-
sophers who critically studied matters
of ethics, science, politics and democ-
racy. The French Revolution in 1789
ushered into Europe ideas of “Liberty,
Equality, Fraternity”, while the Chartist
Movement in England in the 19th
Century created a working class pres-
sure group for political freedom.
Perhaps the clearest enunciation of
human rights as embodied in legally
and constitutionally enforceable “free-
doms” was pronounced by US Presi-
dent Franklin D Roosevelt in 1941: freedom
from fear, freedom of speech, freedom of wor-
ship and freedom from want.
T
he Indian constitution is a document
which reflects the collective wisdom of
progressive liberal minds which have
been propelling the principle of human
rights, human, freedom and the Rule of Law
which are inextricably intertwined. India’s
constitutionally protected fundamental rights
under various sections and Directive Prin-
ciples under Article 1V include freedom of
religion, speech, movement, association and
empower all Indians to seek justice against
the state’s wrongdoings. And Prime Minister
Nehru warned that governments would
ignore these directives “at their own peril”.
The Indian constitution is a formidable
testament to the fact that the concept of
human rights was central to the collective
thinking and vision of the nation’s founding
fathers. But has India lived up to the expecta-
tions of international conventions and the
beliefs of her founding fathers?
The country has tried to, in fits and starts,
but the transgressions stick out. I will not go
into statistics here, but suffice it is to say that
most Indians—despite our highly evolved
judicial system—do not have access to
Has India lived
up to the
expectations of
international
conventions and
the beliefs of her
founding
fathers? The
country has
tried to, in fits
and starts,
but the
transgressions
stick out.
IL
editor@indialegalonline.com
INDIA LEGAL December 31, 2015 5
UNI

Salman Khan was acquitted in a hit-and-run case by Bombay High
Court, thanks to shoddy investigation and a weak prosecution,
reports NEETA KOLHATKAR
DECEMBER31,2015
18
LEAD
Down with Parochialism
The Gujarat government’s parochial bid to reserve seats in private
medical colleges for non-resident Gujaratis was struck down by the High
Court for being unconstitutional. KAUSHIK JOSHI explains why
12
Haven for Terrorists
A porous Indo-Bangladesh border has ensured that extremists, even
those from the dreaded IS, have free passage as the BSF and police
fumble, writes SUJIT BHAR
Herald of Bad News?
New Life for “Bhai” 26
32
COURTS
CRIME
STATES
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The Delhi High Court ruling in the National Herald case will make political parties
accountable for fund spending. All eyes will be on December 19 when the accused,
including Sonia Gandhi and Rahul, appear in court, writes
VENKATASUBRAMANIAN. Bitter mudslinging over the verdict has stalled
parliament. In such a scenario, democracy is the worst casualty, says AJITH PILLAI
Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Associate Editors
Meha Mathur, Sucheta Dasgupta
Deputy Editor
Prabir Biswas
Art Director
Anthony Lawrence
Deputy Art Editor
Amitava Sen
Graphic Designer
Lalit Khitoliya
Photographer
Anil Shakya
Photo Researcher/News Coordinator
Kh Manglembi Devi
Production
Pawan Kumar
Head Convergence Initiatives
Prasoon Parijat
Convergence Manager
Mohul Ghosh
Technical Executive (Social Media)
Sonu Kumar Sharma
Technical Executive
Anubhav Tyagi
6 December 31, 2015

38
REGULARS
Cover Design: ANTHONY LAWRENCE
SOCIETY
TOURISM
AJITH PILLAI joins millions of Beatles fans in welcoming the
Uttarakhand government’s decision to convert an ashram that
the Fab Four lived in into a heritage property
Edit............................................................................... 4
Quote-Unquote............................................................ 8
Ringside..................................................................... 9
Supreme Court........................................................... 10
Courts......................................................................... 16
National Briefs.......................................................30, 31
Is That Legal............................................................... 74
International Briefs................................................ 76, 77
Campus Update......................................................... 78
Figure It Out............................................................... 79
People................................................................... 80, 81
Wordly Wise................................................................ 82
BOOK REVIEW
Praful Bidwai’s
book is an objective
critique of commu-
nist parties and
their failures, says
AJITH PILLAI.
Also, an extract
from The Phoenix
42
LEGAL EYE
Integrity matters
Chief Justice of India TS Thakur says that while arbitration is a
way to reduce pendency of cases, the legal framework has to
change to let it function effectively. RAMESH MENON reports
45“Give Credit
Where It’s Due”
Law secretary PK Malhotra has praised Congress PM PV
Narasimha Rao and former finance minister Manmohan
Singh for the reforms that liberalized our economy.
NEETA KOLHATKAR reports
BJP’s Gujarat Debacle
Close on the heels of the Bihar defeat, the BJP suffered visible
dents in Gujarat’s self-government polls as it alienated Patels,
OBCs, tribals and Dalits. RK MISRA discusses the result
A Long Way to Go
INTERVIEW
50Left
Dissected
In a multi-religious and multi-cultural society such as ours,
family can be seen as a metaphor for India and is more
effective than the Hindutva model, argues ABHAY VAIDYA
46
58
Despite a strong judiciary, India has lagged in implementing
global procedures while settling international disputes. Judge
Ronny Abraham of the ICJ speaks to NEETA KOLHATKAR
US’s Double Standards
HUMAN RIGHTS
International humanitarian laws were flouted when the US
bombed a Medecins Sans Frontieres hospital in Afghanistan
on October 3, leaving 30 dead, asserts ANUJ RAINA
SPOTLIGHT
With the US allowing its citizens to mine asteroids,
the pursuit of land rights in outer space just got
keener. PAPIA SAMAJDAR warns other countries
could follow suit with disastrous consequences
64
66
Family Vs
Hindutva Model
Strawberry Fields Forever
The Race in Space70
FollowusonFacebook.com/IndiaLegalMagazineand
Twitter.com/IndiaLegalMag

“As long as there is rule of law, an
independent judiciary and courts
are upholding the rights and
obligations (of all), I don’t think
anyone has to fear anything.”
—Chief Justice of India TS Thakur on the
climate of intolerance and its effect in India,
The Economic Times
“We will go to Centre, the PM
and the President....wherever
it is required to ensure that
the bill is enacted as law. Aur
agar woh paas nahin kartey,
toh phir humein apni ungli
tedhi karni bhi aati hai (if they
don’t pass the bill, we will be
forced to resort to other
tactics as we know how to
have our way).”
— Delhi CM Arvind Kejriwal after the
Delhi assembly passed the Delhi Jan
Lokpal Bill 2015, The Times Of India
QUOTE-UNQUOTE
“I am the daughter-in-
law of Indira Gandhi. I
am not scared of
anyone. I am not
disturbed.”
— Congress president Sonia
Gandhi to mediapersons, on
facing trial in the
National Herald case
“English education can only train us
enough to be able to earn our daily
bread.... We don’t need such
schools but those that teach us to
serve for the betterment of
other human beings.”
— RSS chief Mohan Bhagwat, at
a statue unveiling function of
RSS founder KB Hedgewar, The
Times Of India
“Forty percent of Indians don’t have
food, homes and other facilities in the
country. But intellectuals which make
0.1 percent of the population and the
voice of society have a tendency to
become a club and the arrogance of
that club becomes a burden upon
society.”
—Eminent filmmaker Shekhar Kapur on
intolerance at the International Film
Festival of India in Goa
“I request the government, please
do not learn the wrong lessons from
Pakistan. Be tolerant. Listen to your
people, embrace your own people.
Mahatma Gandhi gave voice to the
people. Pakistan became a failure
because their leaders crushed
voices of their people... were intoler-
ant. Let us not learn the wrong
lessons.”
—Congress vice-president Rahul Gandhi
in parliament
“I regret that I could not
select judges when
there were so many
vacancies in the high
courts. The judicial
process took a long
time to determine the
constitutional validity of
the NJAC...”
—Outgoing chief justice of
India HL Dattu, on selecting
judges for the higher judiciary,
The Times Of India
“Even if the entire Indian
Army comes, they
cannot defend people
against militants and
terrorists.”
— Former Jammu and Kashmir
chief minister and National
Conference patron Farooq
Abdullah, stressing that the
Kashmir issue can only be
solved through political
dialogue, at a seminar on
Indo-Pak relations
8 December 31, 2015

“I have always found that mercy bears richer fruits
than strict justice.”
Abraham Lincoln
VERDICT
Aruna

SUPREME COURT
Help for acid victims
Making a case for acid
victims, the
Supreme Court ruled that
the minimum compensa-
tion of `three lakh fixed
for them was not enough.
The Court also felt that
considering the social,
economic and personal
problems that the victims
face, there was a need to
slot them as “disabled”.
The Court wanted that
they lead a full life.
Being in the disabled
category would allow acid
victims to get social wel-
fare benefits under The
Persons with Disabilities
(Equal Opportunities,
Protection of Rights and
Full Participation) Act,
1995. The Court directed
all state governments to
include acid victims in the
disabled category.
The Court was
extremely unhappy with
the rise in acid attacks all
over India despite repeat-
ed directions to states to
regulate the sale of acid.
It was hearing a case in
which the Bihar govern-
ment meted out shabby
treatment to a Dalit girl,
Chanchal, with 90
percent acid burns. Her
sister was also a victim
of an acid attack. They
were not accorded
proper medical care in
government hospitals
and a compensation of
`2.42 lakh was paid to
the sisters by the state
government.
The case was brought
to the Court by NGO
Parivartan Kendra.
It was for Parliament to
bring in a uniform civil
code and the judiciary
was not in a position to
either direct the govern-
ment to introduce it or to
legislate it itself, the
Supreme Court observed.
The Court, however,
made it clear that if a
Muslim woman brings a
case of triple talaq before
it, it will certainly scruti-
nize its legal validity and
protect her fundamental
rights.
The court was hearing
a petition from advocate
and BJP member Ashwini
Kumar Upadhyay whose
counsel pleaded that a
uniform civil code was
essential in India.
His plea: The need to
have a uniform civil code
is enshrined in Article 44
of the constitution under
the Directive Principles of
State Policy. It is a goal
which the founding fathers
envisaged.
Although the petitioner
pleaded that there were
several cases in which the
Apex Court had impressed
upon the center to enforce
uniform civil code, the
Court clarified that the
observations only reflect-
ed “hope” and “expecta-
tion”. But it came down
heavily on Upadhyay for
being a spokesperson for
Muslim women citing gen-
der discrimination.
10 December 31, 2015
The crucial “visitors’ diary” from
former Central Bureau of Investi-
gation (CBI) chief Ranjit Sinha’s resi-
dence was finally made available to the
special probe panel by the Supreme
Court. The panel, set by the apex court,
is investigating whether Sinha’s alleged
meetings with the coal scam accused
at his residence led to the dilution of
the CBI investigation in the case. The
diary allegedly has records of tainted
people in coal and 2G spectrum cases
visiting Sinha.
The panel head, former CBI special
director ML Sharma, was also directed
by the court to let other members go
through the diary and submit a report
within 12 weeks.
In May, the court had ordered that a
probe be initiated against Sinha in the
light of his alleged questionable meet-
ings with the coal scam accused.
Probe panel
gets visitors’
diary
Judiciary and
uniform civil code

— Compiled by Prabir Biswas; Illustrations: UdayShankar
State governments must con-
sult the center and seek its
permission before releasing con-
victs whose cases have been
probed by a central agency. A
constitution bench
of the Supreme Court gave this
ruling while referring to the deci-
sion of the Jayalalithaa
government to release seven
convicts in the Rajiv Gandhi
assassination case last year.
The Supreme Court had com-
muted the death sentence of
three convicts, Perarivalan,
Murugan and Santhan, to life
imprisonment in February 2014.
The Jayalalithaa government
immediately decided to free
them, as well as four other
lifers in the case. The center had
moved the Apex Court which
stayed the move.
After this verdict, the pros-
pects are bleak for the convicts.
The apex court has already ruled
that in case death sentence is
reduced to life imprisonment, the
convict will have to spend their
rest of life in jail. It further held
that hardened criminals do not
deserve sympathy and rehabilita-
tion should not be a issue in their
case.
The interest of victims and
national cause should take
precedence. This is crucial to
maintain the rule of law, the
court observed.
While commenting on the
powers of the state on remit-
tance, the Court ruled that state
ought to seek the opinion of the
concerned court before pardon-
ing the sentence of a convict.
Remission is center’s call
Justice Tirath Singh Thakur
took charge as chief justice of
India on December 3, 2015. He
took charge from HL Dattu who
retired on December 2, 2015.
Justice Thakur will hold the post
till January 4, 2017.
Justice Thakur became a
Supreme Court judge on
November 17, 2009. Among the
prominent cases dealt by him are
the IPL betting and spot-fixing
scam, the Subrata Roy Sahara
case and Saradha scam.
Righttoproperty,a
constitutionalright
Right to property can’t be shrugged off or
overlooked as it’s a constitutional right under
Article 300 A, the Supreme Court observed. It
was adjudicating a case wherein a group of
farmers in Rajasthan had approached the Court
for fair compensation against land acquired by
the state government. It ruled that the state
government was bound by the constitution to
give proper compensation to landowners.
The state government was taken to task by
the Court for going back on promises made to
farmers while acquiring their properties in 2001.
It is not possible to block
social networking sites
carrying vulgar and offen-
sive material but the gov-
ernment could consider
initiating legal action
against them, the Apex
Court ruled. It asked the
center to do the needful.
The Court was res-
ponding to a plea from an
NGO, Prajwala, which
wanted the government to
prosecute social network-
ing sites that were being
used for disseminating
vulgar material. As the
center could not check
such content, the sites
needed to be blocked,
it requested.
The center had clarified
that it was not feasible to
track people who used
mobile phones for upload-
ing sex videos and circu-
lated them through
WhatsApp. It also main-
tained that regulating such
material was not possible.
The court’s reaction
came after it became
aware of two cases: one in
which rape videos had
been spread through
WhatsApp in Mumbai; and
the second one in which a
sex racket was being man-
aged through Facebook.
TSThakur,thenewCJI
Regulate social
networking sites

An attempt by the
Gujarat government to
reserve seats in private
medical colleges for
non-resident Gujaratis
was struck down by the
High Court as it goes
against the constitution
By Kaushik Joshi
COURTS/Gujarat HC/ Medical Admissions
R
egionalism has come to the fore in admis-
sions to medical colleges in Gujarat.
Thankfully, in an order dated September
7, 2015, the Gujarat High Court declared
invalid a rule framed by the state govern-
ment to give priority to non-resident
Gujaratis (NRGs) for admission to self-
financed (private) medical colleges there.
The division bench of acting Chief Justice Jayant Patel
and Justice NV Anjaria quashed and set aside sub-clause
(i) of clause (4) of sub-rule C of rule 7 of the Gujarat
Professional Medical Education Courses (Regulation of
Admission and Payment of Fees), (Amendment) Rules,
2015. The petitioner was Kolsani Sai Yaswanath Reddy
GOOD NEWS FOR THE AILING
The Gujarat court order puts merit
over identity in medical college
admissions. It comes as a relief
for deserving candidates.
StopBeingParochial!
UNI

from Andhra Pradesh, but being a minor, it
was filed by his father, Kolsani Venkata Nagi
Reddy.
FOUR CATEGORIES
The petitioner challenged the following
order of categories framed by the govern-
ment for admission to self-financed colleges:
Merit list of genuine NRIs who are domi-
ciled in Gujarat
Merit list of genuine NRIs who are not
domiciled in Gujarat
Merit list of dependant NRIs who are
Merit list of dependant NRIs who are not
Gunvant Thakar, advocate for the peti-
tioner, argued that giving reservation for
NRIs domiciled in Gujarat was violative of
Article 14 of the constitution, besides Article
15(1) and Article 29(2). Article 14 of the con-
stitution says: “The State shall not deny to
any person equality before the law or the
equal protection of the laws within the terri-
tories of India. Article 15 (1) provides that
there shall be no discrimination on grounds
only of religion, race, caste, sex, place of
birth or any of them.”
The petitioner posed some valid ques-
tions: Were the four categories based on
intelligible differentia, can the concept of
NRI and domicile of Gujarat be grouped
together and can categorization have a
rational nexus with the objects sought to be
achieved.
In its verdict, the court observed that
“observance of merit criteria for the pur-
pose of admission is in itself ensuring the
equality clause and adherence to the tenets
of Article 14. In all admissions, especially to
the higher courses, the object sought to
A division bench
of acting Chief
Justice Jayant
Patel (left) and
Justice NV
Anjaria (right)
quashed
sub-clause (i)
of clause (4) of
sub-rule C of
rule 7 of Gujarat
Professional
Medical
Education
Courses
Rules, 2015.
AT THE RECEIVING END
Students, too, had
opposed the government
move on grounds that it
was a “political whim”

pediatrics resident at Civil Hospital,
Ahmedabad, said: “Some political or bureau-
cratic whim often comes into play during
such exams and the students have to suffer.
This year it is the NRG (non-resident
Gujarati) over NRIs. Do they realize how
agonizing it is for the students?”
AGAINST STATUTE
Kolsani Venkata Nagi Reddy, the father of
the petitioner, said: “The amended rule was
clearly a denial of admission to meritorious
students from other states of India. The clas-
sification in favor of NRGs is based on terri-
torial consideration which goes against the
constitution. It is utterly discriminatory. To
provide for reservation on the ground of
place of birth is not tenable. Therefore we
had to challenge it.”
But what do NRGs feel about this ver-
be achieved is maintaining the merit order.
Therefore, any rule of mechanism flowing
from the provisions of law or rules which
have a tendency of compromising with merit
selection cannot be said to have rational
nexus with the object intended to be
achieved.”
WHERE IS THE MERIT?
The court further ruled that the very basis of
these categorizations is not only a mismatch
to the NRI category seat quota, but operates
mischievously vis-a-vis a desired order of
merit to be observed for admission of stu-
dents in the courses. In essence, it said that
the rule in question, to the extent it provides
for domicile of the state as the basis and the
categories devised on those criteria for the
preparation of merit list, is violative of Article
14 and therefore, ultra vires. The court
ordered the government to delete the words
“who are domiciled in Gujarat” in these cate-
gories. Following this order, the merit list will
now be prepared in the following order:
Merit list of genuine NRIs and merit list of
dependant NRIs.
Meanwhile, the advocate-general for
Gujarat prayed that the judgment be stayed
for some time to enable the state to move the
higher court. The court rejected this and
ordered that “the matter pertains to admis-
sion process in a medical faculty and the
same should not be deferred, as it may result
into wastage of an academic year for the stu-
dents concerned”.
Thakar, the advocate for the petitioner,
did not mince words while arguing against
the amended rule. He said: “Priority to
NRGs (non-resident Gujaratis) in crucial
matters like medical admission would be
gross injustice to meritorious students.
Making such a rule amounts to parochialism
and discrimination.”
Even students were against this move of
the Gujarat government. Dr Vijay Nakum, a
COURTS/Gujarat HC/ Medical Admissions
After deletion of the words, “who are domiciled
in Gujarat”, the merit list will now be made in
the following order: Merit list of genuine NRIs
and merit list of dependant NRIs.

IL
dict? Roshan Shah, an NRG from Canada,
cautiously said: “Per se it seems to amount to
discrimination against other NRIs. More so,
in matters of academic merit. There is no
basis for it except a narrow, parochial out-
look. NRGs who have settled abroad do not
contribute to the economy here in India. If
this aims at checking brain-drain, it won’t
work as NRG medicos have their eyes on
greener pastures abroad.” Shah even advo-
cates mandatory social service in rural areas
for all medicos just like conscription in
Singapore.
However, Pinakin Pandya, 55, an NRG
settled in the US, supports the government
move. “Many of us NRGs contribute liberally
towards rural development in their native
places. Besides, they also chip in at times of
natural calamities. So, why shouldn’t they
enjoy certain privileges?” he argued.
Harikrishna Barot, 70, a retired bank
employee and an NRG, said: “Why shouldn’t
NRGs be considered for privileges?
Whenever the state government issues an
appeal for donations in times of floods or
earthquakes, NRGs have contributed
generously.”
The Gujarat High Court order comes as
a relief to students of other states who seek
admission to medical courses in self-
financed medical institutions in Gujarat.
Let’s face it: Being an Indian is more impor-
tant than sticking to narrow, parochial
boundaries.
“Giving reservation
for NRIs domiciled
in Gujarat is
violative of
Article 14 of the
constitution.”
—Gunvant Thakar
Advocate for petitioner
“It amounts to
discrimination
against other
NRIs. More so,
in matters of
academic merit.”
—Roshan Shah
A non-resident Gujarati

COURTS
In a significant judgment that
is going to stand in good
stead for companies installing
mobile towers in various
places, the Himachal Pradesh
High court struck down the
plea that they pose serious
health hazards.
While quashing a clutch of
petitions that pointed to the
health implications, the Court
observed that there was noth-
ing to prove the connection. It
came to this conclusion after
examining the issue by looking
at earlier verdicts in favor of
towers and going through
research reports.
The High Court’s order
ratified the stand taken by
Cellular Operator Association of
India (COAI) which had been
maintaining that a false alarm
was being raised about mobile
tower radiation affecting the
health of people.
Go-ahead for mobile towers
Gender equality and govt jobs
Despite CBI closing a 1984 anti-Sikh
riots case against Jagdish Tytler and
holding him not guilty, a Delhi court felt
that the probe done by the central investi-
gating agency was not enough. The case
was in relation to Tytler’s alleged role in
the killing of three men at Gurudwara Pul
Bangash on November 1, 1984.
The court threw light on the “witness-
es” whom the CBI claimed as “untrace-
able”, and observed that they needed to
be examined. It also took serious
cognizance of arms dealer Abhishek
Verma’s stand that Tytler had won over
the “witnesses”. The court did not wish
away Verma’s statement to the CBI that
Narinder, the son of key witness in the
case, late Surinder Singh, was packed off
to Canada on Tytler’s directions and `1
crore was paid to him to retract his state-
ment. It asked the CBI to put Verma to a
lie-detector test, if needed. It also wanted
the CBI to get Narinder’s account.
The court fleshed out 11 points that
needed to be investigated by the CBI.
Taking responsibility for the probe, the
court pointed out that it would keep a tab
on the probe every two months to ensure
that all angles were taken care of. It slat-
ed the next hearing on February 2, 2016.
Probe Tytler further
The Allahabad High Court clarified
that the privilege to get a govern-
ment job after the death of a father
or mother—who was a government
employee—could not be limited to
sons; even married daughters could
lay claim to the job.
It observed that married daugh-
ters must be treated as part of the
“family”, as defined by UP
Recruitment of Dependants of
Government Servants Dying-in-
Harness Rules, 1974. Leaving them
out would be unlawful and against
the constitution, it observed.
The Court asked the UP
government to give due importance
to job claims made by married
daughters along with unmarried or
divorced ones.
The order came while the High
Court was looking into a petition
where a claim by a married woman
from Azamgarh, UP, had been
set aside by the town’s district
magistrate.

— Compiled by Prabir Biswas; Illustrations: UdayShankar
The Madras High Court banned all kinds of
protests, demonstrations or rallies in Tamil
Nadu in relation to the bringing down of the Babri
Masjid, on December 6, starting next year.
The mosque in Ayodhya, Uttar Pradesh, was
razed on December 6, 1992, causing widespread
riots and escalating communal tension.
The court issued directions to Tamil Nadu chief
secretary, home secretary, and director general of
police in this regard. It ruled that the order applied
to all organizations, irrespective of the religion they
belonged to.
The court also did not grant permission to an
organization, the Hindu Munnani, to hold protests
for building the Ram Temple in Ayodhya on
December 6, this year.
NoBabriMasjidprotest
While giving a piece of its mind to the Indian
Railways, the Bombay High Court wondered
whether the public transporter was at all bothered
about the safety and comfort of passengers. The
Court was reacting to an online video that showed
a person falling off a train on the Central Railways
due to overcrowding. It blamed the Railways for
failing to make proper arrangements in train
coaches and platforms and develop other facilities
to keep pace with the rapid increase in the number
of commuters.
There was no long-term planning, no clear
vision as to how the Railways wished to tackle the
issue, the court observed. It also took the Railways
to task over its failure to make passengers aware
about safety, especially while boarding over-
crowded trains.
Railwayspulledupforapathy
ADelhi court did not permit
filing of an FIR against
Union Minister VK Singh for
his “dog” remark after two
Dalit children were burnt alive
in Faridabad this October. The
court felt that Singh’s com-
ment had been interpreted out
of context, twisted and mag-
nified out of proportion to
make it seem castiest.
The court also observed
that there were prima facie
no evidence that Singh
wanted to belittle any caste
or creed.
Advocate Satya Prakash
had sought an FIR under cer-
tain sections of the SC/ST
(Prevention of Atrocities) Act,
the IT Act and the Indian Penal
Code. The Delhi Police had
already given a clean chit to
Singh in its action-taken
report.
Singh’s comment that the
government could not be
blamed if anyone throws
stone at a dog has triggered a
huge controversy and the
opposition is gunning for his
removal as a central minister.
Slamming the centre for its
sloppy attitude in coming
up with a sanction note for
additional police force in
Delhi, the Delhi High Court
showed concern over the
rising incidents of crime in
the capital.
It also took the bureau-
cracy to task for delaying the
matter. The court pointed out
that while judges could write
reams of pages on a judg-
ment, the bureaucrats could
not finish a three-page sanc-
tion note in time.
The court did not take
kindly to the assurance given
by Additional Solicitor General
Sanjay Jain that an inter-
ministerial cabinet note was
underway. It asked the center
to clear the air on whether it
was at all interested in aug-
menting the police force, in
the next hearing.
Sanction police force in Delhi
VK Singh absolved
PILoncarsinDelhi quashed
The Delhi High Court rejected a PIL against the
Kejriwal government’s decision to restrict the
movement of private vehicles in Delhi from January
1, 2016. The PIL was seeking a stay on the move.
The Court ruled that the objection was too early as
the proposal was yet to be implemented.

LEAD/ National Herald Case
Swamy’s
DarkHeraldThe Delhi High Court ruling in the Herald
case will make political parties
accountable for fund spending. All eyes
will be on December 19 when the
accused will appear before the trial court
By Venkatasubramanian
T
HE Delhi High Court’s ver-
dict in Rahul Gandhi vs Dr
Subramanian Swamy, deli-
vered by Justice Sunil Ga-
ur, on December 7, set off a
huge political storm both
inside and outside Parlia-
ment. The ruling dismissed the challenges to
the issue of summons by a lower court to
Congress officials in connection with a com-
plaint of misappropriation of party funds.
The judgment provoked the Congress to alle-
ge that NDA was encouraging proxy litiga-
tion to harass political rivals.
In his judgment, Justice Gaur began by
saying that the probity of a legendary nation-
al political party was under the scanner in
these petitions, which had challenged the
issue of summons by a lower court to Cong-
ress president Sonia Gandhi, vice-president
Rahul Gandhi, party officials Motilal Vora,
Oscar Fernandes and Sam Pitroda, journal-
ist, Suman Dubey and the company, Young
Indian Private Company (YI), floated by
the party.
BACK TO THE WALL?
The facts and legality of
the case will pose a tough
challenge to Sonia-Rahul
to emerge unscathed in
the trial court

In this case, which has its origins in the
trial court, the maverick BJP leader Swamy
sought to expose cheating, fraud, criminal
misappropriation, etc., by office bearers of
the Congress, who also happen to be direc-
tors and shareholders of YI and Associated
Journals Private Limited (AJL). AJL was
engaged in publishing National Herald,
which had a historical association with the
Congress during the freedom struggle and
even after Independence.
O
n June 26, 2014, the trial court, after
recording the evidence of Swamy; a
chartered accountant, MR Venka-
tesh; an official from the Registrar of Com-
panies, Gulab Chand; and journalist J Gopi-
krishnan summoned the seven accused for
offences under Sections 403, 406 and 420
read with Section 120-B of the IPC. Section
403 deals with dishonest misappropriation
of property, Section 406 with punishment for
criminal breach of trust and Section 420
with cheating and dishonesty inducing deliv-
ery of property. Section 120-B deals with
punishment for criminal conspiracy.
When AJL had closed the printing and
publication of National Herald in 2008, it
owed a huge debt of `90 crore to the
Congress. Although this debt had accumulat-
ed over a period of time, this was the out-
come of interest-free loans extended by the
Congress to AJL from time to time.
AJL was a public limited company with
immovable assets of crores of rupees. The
Congress had assigned the debt of `90 crore
to YI on receiving a paltry amount of `50
lakh only.
Both Sonia Gandhi and Rahul Gandhi
owned 38 percent each of shares of YI. The
debt which AJL owed to the Congress then
stood transferred to YI, which was formed in
November 2010.
In December 2010, AJL increased its
share equity by allotting large chunk of its
shares to YI in lieu of the debt owed to the
Congress which now stood assigned to YI.
Thus, AJL became a wholly-owned company
of YI by merely paying `50 lakh and thus, YI
acquired complete control of AJL which had
real estate assets of at least `2,000 crore,
that too in prime areas of New Delhi, Luck-
now, Bhopal, Mumbai, Indore, Patna, Pan-
chkula and other places. According to Swa-
my, the conservative real estate worth of AJL
is `5,000 crore.
NAMING NAMES
(L-R) Oscar Fernandes,
Motilal Vora, Suman
Dubey and Sam Pitroda

Swamy (right)
alleged that
Sonia and
Rahul Gandhi
had hatched a
criminal
conspiracy
with the other
accused to
defraud the
Congress and
AJL by
dubiously
forming YI to
misappropriate
the huge
assets of AJL.
ILLEGAL MOVE?
The current
owner of the
National Herald
House, has
rented out the
property to MNCs
and to the
Ministry of
External Affairs
for its Passport
Seva Kendra
Swamy alleged that Sonia and Rahul
Gandhi had hatched a criminal conspiracy
with the other accused to defraud the
Congress and AJL by dubiously forming YI
to misappropriate the huge assets of AJL.
They thus committed a criminal breach of
trust reposed in the Congress and the AJL
and its shareholders. He alleged that the
rights of shareholders of AJL and its proper-
ties had been dishonestly misappropriated by
the accused by conversion of a loan of `90
crore into equity shares in favor of YI.
C
uriously, while the Memorandum of
Association of the AJL bars the com-
pany from entering into any transac-
tion which is not for furthering its objective
to publish newspapers, YI declared, after
having possession of the vast real estate of
AJL, that it would not engage in publishing a
newspaper as it was against the declared
objective submitted for obtaining registra-
tion under Section 25 of the Companies Act.
The National Herald House is a prime
property on Bahadur Shah Zafar Marg in
Delhi and was given by the government for
the purpose of publishing a newspaper at
concessional rates. Yet, YI, the current owner
of National Herald House, has rented out
this property to MNCs and to the Ministry of
External Affairs for its Passport Seva Kendra.

acquiring control over `2,000 crore worth of
assets of AJL. As all the accused had alleged-
ly acted in consortium with each other to
achieve the nefarious purpose or design,
there were sufficient grounds for proceedings
against all of them, it said.
It was asserted by the accused before the
High Court that due to historical and emo-
tive relations, money was advanced by the
Congress to AJL from time to time and the
party’s objective was to uphold the legacy and
tradition of secularism and non-alignment.
The accused also strongly argued that
there was no legal bar on disbursement of
Such commercial use of property is consid-
ered illegal.
In August 2014, the trial court prima facie
concluded that YI was created as a sham or a
cloak to convert public money to personal
use or as a “special purpose vehicle” for
“It is a matter of serious concern as
allegations of fraud, etc are leveled
against the Congress Party, who has
ruled the nation for many decades”
— Justice Sunil Gaur (left), Delhi High Court
T
he Congress alleges that the
National Herald case against its top
functionaries, including Sonia
Gandhi and Rahul Gandhi, is nothing
short of political vendetta. Its charge
rests on the Enforcement Directorate first
closing the case in January and reopen-
ing it in August this year.
The latter action, the Congress main-
tains, is linked to two letters written by
Dr Subramanian Swamy to Prime
Minister Narendra Modi on inaction on
the part of the ED director in the matter.
He also demanded the appointment of a
new ED chief, whereupon, Karnal Singh
(right) was appointed. Seven days after
his appointment, Singh issued a circular
on August 26 that revoked the order of
his predecessor, Rajan Katoch, to dis-
continue the case.
In his first note to Modi dated August
11, 2015, Swamy, who is also a BJP MP,
opened with this point: “It is a matter of
surprise that even after more than a year,
the Enforcement Directorate
does not have a full time direc-
tor. The present Director who is
holding additional charge as
Secretary in the Ministry of
Heavy Industry, seems to have
no interest in pursuing any
matter related to the Congress
party perhaps due to the fact
that he is a close relative of Mr
Digvijay Singh, who is the
General Secretary of the
Congress Party.”
The letter then goes on to
give details of the case involving
Sonia Gandhi, Rahul Gandhi and other
Congress functionaries and ends with:
“....Therefore I urge you to see that a full
time Director of the Enforcement
Directorate is appointed immediately and
that a clear cut direction be given to
properly investigate the matter of money
laundering submitted to them last year
by me in the National Herald scam.”
Swamy dashed off a letter the follow-
ing day (August 12, 2015), reiterating the
“poor functioning” of the ED under
Katoch and gave further details of how
the National Herald case was poorly
investigated. It pressed for the “immedi-
ate appointment of an able, honest and
educated high official” as the ED direc-
tor. Katoch was removed seven days
later on August 19. Karnal Singh took
over on that very day and reopened the
National Herald case in a matter of days.
But the two letters written by Swamy
does not take away from the legalities or
merits of the case.
— Ajith Pillai
WHYNOW?

They made a pointed reference to the BJP
investing in Canstar Fund.
T
he accused told the High Court that
the constitution of the Congress per-
mits formation of a trust to hold imm-
ovable properties belonging to the party, and
that there is no allegation that the accused
were the trustees of the funds of the
Congress. Secondly, it was argued that there
was no entrustment of any money to the
Congress. Therefore, there is no question of
any misappropriation or breach of trust as
the donations received by the Congress could
be dealt with in the manner it liked.
Thirdly, it was suggested that AJL had no
net worth and was unable to repay the debt
to the Congress. Fourth, the accused pointed
out that neither the Representation of the
Peoples Act nor the Income Tax Act or any
other Act prohibits giving of loans by a polit-
ical party. Reliance was placed upon a deci-
sion of the Income Tax Tribunal in the
money to a newspaper, which was closely
linked to the Congress.
They cited Section 13A of the Income
Tax Act which contemplates “income from
other sources” in respect of political parties,
which are run on donations and contended
that other political parties have also invest-
ed money in mutual funds.
These are the properties owned by AJL
as per documents produced by
Subramanian Swamy and reported by
agencies.
A seven-storey building with one lakh
square feet of office space in Delhi
A 22,000 sqft building in Indore
A 50,000 sqft property in Bhopal
A 3,400 sq yard plot in Bandra
A two-acre plot in Lucknow
A 3,360 sqm plot in Panchkula
Properties in Patna
Sep 9, 1938
Jawaharlal Nehru estab-
lished National Herald
(NH). The masthead had
the words: “Freedom is in
Peril, Defend it with All
Your Might”. K Rama Rao
was the first editor. It was
run by Associated
Journals Ltd (AJL), a
“Sec 25” company and
had seven shareholders,
including Kailash Nath
Katju (grandfather of
Markandey Katju), Nehru,
PD Tandon and Sri
Krishna Dutta Poliwal
Mar 22, 2002 Motilal
Vora becomes chairman
and MD of AJL
Sep 30, 2008
AJL still has over 1,000
shareholders, including
Congress office bear-
ers and businessper-
sons. Even Shanti
Bhushan’s father,
Vishwamitra, owned
shares in AJL
Nov 23, 2010
Young Indian Pvt Ltd incor-
porated as a “Sec 25”
company. Suman Dubey
and Sam Pitroda are direc-
tors. AICC decides to
assign AJL’s `90-crore
debt to Young Indian
Dec 13, 2010
Rahul Gandhi becomes a
director of Young Indian.
He holds 38 percent
shares. AJL transfers its
entire equity to Young
Indian in lieu of the debt.
Young Indian pays AJL
`50 lakh
Jan 22, 2011
Sonia Gandhi and Oscar
Fernandes join the board
of directors. Sonia has 38
percent shareholdings, the
remaining 24 percent are
equally shared by Vora
and Fernandes
April 1, 2008
NH stops publishing
A chronology of what
transpired after
National Herald was
launched in 1938 by
Jawaharlal Nehru
RichHaul
Thepast
unraveled…

lenge that Swamy lacked the locus to make
the complaint against alleged breach of trust,
as he himself was not a victim of such alleged
breach of trust, by holding that the right of a
private citizen to proceed against the corrupt
could not be restricted.
The High Court also noted with concern
the impropriety of extending interest-free
loans to a separate legal entity, namely, AJL,
by the Congress, particularly when the
source of the party’s funds is largely from
donations given by the public. “Any citizen
can legitimately question the siphoning of
funds by a political party,” the High Court
held, making it legally possible for any future
challenge to misappropriation of funds by
any political party. In sum, the High Court
found sufficient grounds for summoning the
accused by the trial court.
With fresh summons being issued by the
trial court to the accused to appear before it on
December 19, the likely twists and turns in this
case would be of interest to everyone.
Bharatiya Janata Party vs Deputy Commi-
ssioner of Income Tax [CIT (2003) 258 ITR
1] to maintain that a political party could
invest in commercial ventures.
The accused also refuted allegations that
writing off the loans by the Congress was an
illegal act or that there was breach of trust
qua the shareholders of AJL. They relied on
a Supreme Court decision in the Bacha F.
Guzdar, Bombay vs Commissioner of Income
Tax, Bombay (1955) 1 SCR 876 to assert that
a shareholder is not the owner of the assets
belonging to the company.
The High Court, having heard both
Swamy and the counsel representing the
accused, concluded that in a democratic set
up, how a political party of national stature
acts is everybody’s concern. “Rather, it is a
matter of serious concern as allegations of
fraud, etc. are leveled against the Congress
Party, who has ruled the nation for many
decades,” the High Court held.
Therefore, the Court repelled the chal- IL
Nov 14, 2011
The paper was slated to
come out but didn’t
Feb 2013
Subramanian Swamy
files a petition in a Delhi
court against the four
Congress leaders alleg-
ing fraud and criminal
breach of trust
June 26, 2014
Delhi court summons
Sonia Gandhi and Rahul
in the NH case
Aug 1, 2014
Delhi HC issues notice to
Swamy on a batch of peti-
tions filed by the Gandhis
and others in the case
seeking stay on summons
issued for August 7
Aug 6, 2014
HC stays proceedings
against the Gandhis and
others
Dec 15, 2014
HC extends stay till dis-
posal of appeals
Jan 12, 2015
Judge recuses himself
from hearing Sonia and
Rahul’s plea
Jan 2015
Enforcement Directorate
decides to close the case
Jan 19, 2015
Supreme Court asks
Swamy to make out a case
in the Delhi High Court for
speedy trial of the NH
case.
Aug 26, 2015
ED reopens the case
Dec 7, 2015
Delhi High Court bench
refuses to quash summons
against Sonia, Rahul
Dec 19, 2015
The day Sonia and Rahul
have to appear before the
trial court
The Delhi High
Court repelled
the challenge
that Swamy
lacked the
locus to make
the complaint,
as he himself
was not a victim
of alleged
breach of trust.
It held that the
right of a
private citizen
to proceed
against the
corrupt could
not be
restricted.

IL
National Herald Case/Parliament
I
T is a truism that when parliament’s
functioning is derailed, it is democra-
cy itself that suffers. In the last dec-
ade or so we have repeatedly been
witness to hostilities in the Lok Sa-
bha and the Rajya Sabha stalling proceedings
and causing needless adjournments. More
recently, an aggressive opposition first en-
sured that the monsoon session was a
washout. It persisted with its non-coopera-
tion in the winter session resulting in pre-
cious time—that should ideally have been de-
voted to discussing issues of national impor-
tance and passage of key bills—being wasted.
Who is responsible for this impasse? It is
easy to blame either the opposition or the
ruling dispensation. The truth lies some-
where in between. It cannot be denied that
the primary task of ensuring the smooth
functioning of parliament is the responsibili-
ty of the treasury benches. However, the
opposition too owes it to people to ensure
that the democratic process proceeds with-
out too many hindrances.
Ironically, there was a glimmer of hope
that the sabre-rattling would be within per-
missible limits. Prime Minister Narendra
Modi’s meeting with Manmohan Singh and
Sonia Gandhi and the placatory noises he
LEAD/
Parliament has
been plunged
into paralysis
over the
National Herald
case with the
Congress
projecting it as
a BJP
conspiracy
By Ajith Pillai
made seeking the support of the opposition
were seen as positive signals.
But these efforts were drowned out in the
flood of controversies that followed. Conten-
tious issues like intolerance towards minori-
ties and those who propagated views seen as
anti-government and anti-Sangh Parivar
remained unresolved.
On the contrary, the fires continued to be
stoked at regular intervals by the right-wing
fringe and BJP leaders who projected the
entire intolerance issue as politically orches-
trated by anti-national intellectuals.
Indeed, what we have been seeing in par-
liament is a reflection of the larger ideologi-
cal war raging outside. It is a battle between
those who believe in the Nehruvian ideal of a
secular state and those who repose faith in
the principles of a strident Hindu rashtra. It
is this widening fissure between them that
frequently raises its ugly head and has con-
tributed to several controversies.
It also found reflection in the National
Herald misappropriation case. Congress
leaders are now projecting it as a BJP con-
spiracy not only against the Nehru-Gandhi
family but also as an attempt to “eliminate”
the Congress. This charge may be far-
fetched. But it would best be left for the
courts to decide whether the Gandhis are
guilty or innocent. This, incidentally, is the
official stance of the BJP. But its leaders have
all too often not suppressed their glee at the
Gandhis courting trouble.
Very clearly, much more needs to be done
before the forthcoming budget session vis-a-
vis conflict management. Perhaps, the ruling
dispensation and the opposition should initi-
ate a dialogue while parliament is in recess
instead of holding last-minute talks before
the house reconvenes.
As for the Congress, it must learn to live
with the fact that Sonia and Rahul have a
long legal battle ahead. But that should not
come in the way of it functioning as a respon-
sible opposition.
UnheraldedCrisis

CRIME/ Salman Case
“Bhaijaan”
WalksFreeDecember 10 was a watershed day for
Salman Khan as he was acquitted in a
hit-and-run case. Like many other cases
in India, shoddy investigation and a weak
prosecution led the accused to walk free
By Neeta Kolhatkar
A
FTER 13 years, the verdict in
Salman Khan’s case was
straight out of a film. He was
acquitted by the Bombay High
Court for running his car over
five pavement dwellers outside a bakery on
Hill Road, Bandra, in September 2002. One
person was killed and four injured. The High
Court order came after a session’s court in
May convicted him of culpable homicide not
amounting to murder and sentenced him to
five years jail.
On December 10, 2015, as tension height-
ened in the High Court and people milled
around, Salman’s bodyguard, Shera, reached
the Court first to survey how best the star
could avoid the scores of media persons and
innumerable fans, which included bystan-
ders, police, lawyers and even Court staff.
The Bombay High Court suddenly resem-
bled a busy Mumbai street where a film
shooting was taking place. Salman entered
the gate adjacent to that of the judges’ wear-
ing a white and blue check shirt and sporting
a stubble. He had come straight from Karjat
and looked tense and exhausted. The judge
arrived at 1.35 pm and pronounced the order
exactly a minute later.
Delivering the verdict, Justice AR Joshi
said: “On the basis of evidence submitted by
the prosecution, Salman cannot be convict-
ed.” He added: “Prosecution has failed to
establish its case against the appellant
accused (Salman Khan) on all charges.”
MANY LAPSES
The Court made stringent observations abo-
ut the conduct of the lower court during this
trial and criticized the lapses in police inves-
tigation. The judge said: “The burden is on
the prosecution to establish the guilt of the
accused and this needs to be done beyond
reasonable doubt.”
As per observations, the trial in the lower
court was based only on the statement of one
key eyewitness, Ravindra Patil, who was
Salman’s bodyguard and attached to the
Mumbai police. Patil was present in Salman’s
car at the time of the crash and in May, the
session’s court took his evidence while con-
victing the actor. However, on December 10,
the High Court said Patil was not a “wholly

reliable witness”, and his version needed to
be corroborated with that of other witnesses.
Incidentally, the case saw 27 prosecution wit-
nesses and one defense witness.
Police investigations could not prove that
the person driving the car was Salman. The
Court further said the trial court had erred in
accepting bills of Rain Bar and Restaurant
(where Salman had gone prior to this inci-
dent) without ascertaining the blood sample
and alcohol test and more so, without a
panchanama. The court also questioned why
the mandatory procedure of recording the
statements of at least five people was not
conducted.
This led the Court to observe that investi-
gations were conducted in a faulty manner
and had many loose ends and hence, the ben-
efit had to be given in favor of the accused.
Salman was asked to pay `25,000 as a per-
sonal bond to ensure that in case Maharash-
tra went in for appeal to the Supreme Court,
he would be present in court. It also ordered
the police to return his passport to him.
RELIEVED SALMAN
Soon after the verdict, a much-shaken and
visibly overwhelmed Salman wept. Later, he
intermittently smiled and cried, coming to
terms with the fact that the biggest scare (of
going to jail) was averted after 13 years.
In September 2002, soon after the inci-
dent, Salman was arrested by the Bandra
police after an FIR was registered. His blood
sample was collected at JJ Hospital to deter-
mine the alcohol content. He was granted
bail the same day, but arrested later when he
surrendered again before the Bandra police.
Later, after a PIL was filed in the Bombay
HC, Salman was directed to pay `19 lakh
within two weeks to the victims as compen-
sation. Out of this amount, `10 lakh was to be
given to the family of Nurullah Mehboob
Sharif, the person who died in the incident.
Hearing the present verdict, Maharashtra
Chief Minister Devendra Fadnavis, who is in
the midst of a stormy season in the Assembly,
said that his government would decide on
CRUCIAL EYE WITNESSES
Ravindra Patil, Salman
Khan’s bodyguard, was the
sole defense witness and
was not considered reliable
by the High Court
Singer Kamaal Khan was
also present in the car with
Salman Khan in 2002
“On the basis
of evidence
submitted by the
prosecution,
Salman cannot
be convicted.
Prosecution has
failed to establish
its case against
the appellant
accused on all
charges.”
Justice AR Joshi, of
the Bombay High
Court

IL
YOURS FAITHFULLY
Salman Khan’s fan
following remains
undiminished despite
the court cases
es, including singer Kamaal
Khan (who was in the car
with Salman), should have
been examined. “There could
have been further examina-
tion of Kamaal Khan and
other witnesses that were
dropped in the High Court.
Also, the prosecutor did not
pursue the case effectively
and the police did not match
the magnitude of the other
party’s legal panel,” said
Singh. He added, “They
should have appointed a sen-
ior counsel, as prescribed
under the police manual. In
fact, they should conduct an
inquiry against the police and
prosecute those who saved
the accused.” Singh said this
procedure is mandatory when
strictures are passed against
the prosecution and the
police by the court.
Advocate Niteen Pradhan
told India Legal that the public needs to
accept the decision and was critical of the
coverage given to this case. “Media trial and
public perception do not determine the
court’s verdict,” he said. He came down heav-
ily on the media for trying to drive Salman
Khan’s case as the national agenda for the
day. “We are experts in sensationalizing non-
issues. The victim’s widow was to be paid a
hefty compensation and one needs to deter-
mine whether it was paid to her at the right
time. Now she has remarried and has a large
family and it needs to be ascertained if this
money eventually reaches her or will be used
by her family,” said Pradhan.
Immediately after the verdict, pandemo-
nium broke out as hundreds of people
descended inside the courtroom and crowd-
ed the corridor to get a glimpse of the star.
Court staff even brought family members to
see Salman and ran across the dais of the
judge. As lawyers and others took selfies with
the star from every angle despite a rule pro-
hibiting mobile cameras inside court, the
craze over Bollywood stars continued
unabated.
the further course of action after examining
the HC verdict.
Amit Desai, Salman’s advocate, told the
media on behalf of his client: “It is very satis-
fying. It’s a big relief for him and he is very
happy.” Meanwhile, Salman Khan tweeted
that he accepted “the decision of the judiciary
with humility. I thank my family, friends &
fans for their support & prayers”.
WEAK EVIDENCE
The legal fraternity welcomed the verdict and
said it needs to be respected. However,
lawyers felt that the prosecutor and the
police did not do a thorough job. Former IPS
officer and advocate YP Singh said that if
there were faults in the evidence, it could
have been sent for retrial and other witness-
The court observed that investigations
were faulty and had many loose ends
and hence, the benefit had to be given
in favor of the accused.
CRIME/ Salman Case
UNI

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Ajith Kumar,
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Rajinikanth
26
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SHARMA
Murdoch’s
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bad news 18
BIKRAM VOHRA
Letting stories
hang 22
VIEWSONNEWSDECEMBER 22, 2015 `50THE CRITICAL EYE
www.viewsonnewsonline.com
GOVERNMENT FUMBLES
AS PUNJAB BURNS
By Vipin Pubby 50
WILL THE PARIS CLIMATE
SUMMIT CLEAN UP THE AIR?
By Papia Samajdar 38
Governance Section
VIEWSONNEWSDECEMBER 22, 2015 `50THE CRITICAL EYE
www.viewsonnewsonline.com
INDIA, CANNY UNDERDOG
IN CLIMATE TALKS?
By Darryl D’Monte 44
WILL THE BIHAR
LIQUOR BAN WORK?
By Vipin Pubby 50
Governance Section
CNN, IBN RENEW
TIE-UP 33
TV REVIEW
Black-ish and the
race divide 38
Also
VIEWSONNEWSTHE CRITICAL EYE

Rising pollution levels in Delhi got
alarm bells ringing finally, and
the effect was seen in various offices.
Officials from the Central Pollution
Control Board (CPCB) visited the
Supreme Court and installed air fil-
tering equipment in the courtrooms
and on the premises to check for pol-
lutants and shall come up with reme-
dies. Following a PIL by environmen-
talist MC Mehta on the alarming
spurt in air pollution in Delhi-NCR,
Chief Justice of India-led bench
ordered the CPCB to install air
sampling equipment in the
Supreme Court.
NATIONAL BRIEFS
Park Street
rape accused
found guilty
The center has said that it will intro-
duce a comprehensive law to crimi-
nalize marital rape by amending the
IPC, CrPC as well as the Indian
Evidence Act and was awaiting the Law
Commission’s report on the issue. “The
issue of marital rape is very complicated
and it is very difficult to explain and
describe it. The cases are of an extreme
private nature and no records of any
consent are available. The matter
has been dealt in detail by a parlia-
mentary committee as well as the
Law Commission,” Minister of State
for Home Affairs Kiren Rijiju said in
the Rajya Sabha while replying to a
debate on a private member’s bill.
He said the parliamentary commit-
tee in its report has recommended
the need for a comprehensive review
of the criminal system of law.
The BJP-appointed one-
man commission, under
former Delhi High Court
judge SN Dhingra to probe
alleged irregularities in grant
of licenses to developers in
four villages of Gurgaon, is set to sum-
mon businessman Robert Vadra,
reports The Indian Express.
The licenses were issued by the
previous Congress government
between 2008 and
2014. When in oppo-
sition, the BJP had
repeatedly said it
would probe the deals
if it came to power.
Incidentally, in its
report for 2013-14
tabled in the Haryana
assembly early this
year, the Comptroller
and Auditor General had
come down heavily on the
Department of Town and Country
Planning and the Hooda government
for helping builders.
Criminalizing of marital rape mooted
Panel to summon
Robert Vadra
over land deal
Air filters installed in apex court
Almost four years after 37-year-old
Suzette Jordan was gangraped in
Kolkata, in what came to be known as
the Park Street rape case, a Kolkata
court has found three of the five
accused guilty of the crime, NDTV
reports. Two others, the main accused
Kader Khan and Ali, are still abscond-
ing. Jordan, who announced her
identity in public, died of meningitis
this year.
Additional sessions judge Chiranjib
Bhattacharya pronounced Ruman
Khan, Naser Khan and Sumit Bajaj
guilty of gangrape. The trial in the case
began only in 2013, delayed by the
accused who demanded copies of the
crucial CCTV footage that had been
sent to Hyderabad for forensic tests.
The accused claimed the case was false.
Jordan was examined and cross-exam-
ined over almost six months.
The case sparked furor when politi-
cal leaders, including chief minister
Mamata Banerjee dismissed her allega-
tion stating that she was trying to make
the government look bad. The then
joint commissioner of police (crime)
Damayanti Sen, who originally appre-
hended Ruman, Naser and Bajaj, was
transferred to Barrackpore soon after.

Delhi Chief Minister Arvind
Kejriwal got lawyers in a tizzy
with the proposed even-odd vehicular
policy. Even as the Delhi High Court
Bar Association wanted the state gov-
ernment to exempt lawyers from the
policy, many advocates started adapt-
ing to the proposed plan.
A bemused bench of Chief Justice
G Rohini and Justice Jayant Nath
kept receiving requests for change of
dates only to ensure lawyers could
drive in the city on the proposed
dates. The bench had earlier termed
the PILs filed against the AAP in this
matter as “premature”, saying, “the
Delhi government has proposed an
idea, which is to be implemented
from January 1, 2016, on trial basis
for 15 days, so let them try it”.
A case of doing
too much?
Close security watch
at metro stations
In a significant remark on
the judiciary’s intervention
in CBI investigations, a par-
liamentary committee headed
by EM Sudarsana
Natchiappan has stated: “…
various high courts and
Supreme Court are frequently
issuing directions to the CBI
to handle cases relating to
Prevention of Corruption Act,
1988 as also of 'public order'.
As a result, the jurisdiction
and powers of the CBI have
widened and deepened and
have far exceeded than what
was contemplated under the
Delhi Special Police Act,
1946.” It slammed the process
of establishing special CBI
courts leading to the intro-
duction of a dual judicial sys-
tem. It said the practice is
making the CBI the most
sought-after investigating
agency and is relegating the
state police to the level of
home guards, reports The
Times Of India.
Aparliamentary standing committee wants
Delhi police to increase its visibility and
work in close coordination with the CISF at
metro stations as they are “vulnerable to terror-
ist attacks”. It raised concerns about the safety of
people from the North-East and pointed out
that crime against women “has a disheartening
trend,” reports The Indian Express.
The Union cabinet, chaired by Prime
Minister Narendra Modi, approved
the Real Estate (Regulation and
Development) Bill, 2015 which will now
be taken up for consideration by the
parliament, reports NDTV. The bill pro-
vides a uniform regulatory environment
to ensure speedy adjudication of dis-
putes and orderly growth of the real
estate sector. It ensures mandatory dis-
closure by promoters to the customers
through registration of real estate proj-
ects and also of real estate agents with
the Real Estate Regulatory Authority. It
aims at restoring the confidence of con-
sumers by institutionalizing transparen-
cy and accountability in this sector.
The odds of an
even car
Human Rights Day
PM clears Real
Estate Bill
“Review ban on gay sex”
—Compiled by Shailaja Paramathma
Union Finance
Minister Arun
Jaitley said at the
Times LitFest in Delhi:
“The Supreme Court’s
2014 verdict banning
gay sex is not in
accordance with
evolving legal
jurisprudence and the
court needs to
reconsider it.” He said
that he supported the
decriminalizing
of gay sex. He also said
that the courts in the
country have always
upheld and defended
the right to free speech
and expression.
The National Human Rights
Commission celebrated the
International Human Rights Day on
December 10 under the slogan “Our
Rights, Our Freedoms, Always”.
In a gathering attended by Chief Justice
of India TS Thakur and Union Minister
Kiren Rijiju, a resolution was taken to
always uphold human rights. Former CJI
RM Lahoti also addressed the meeting.

Infiltration into Bengal from Bangladesh
has acquired scary dimensions as IS
sympathizers could be among them.
With little collaboration between the BSF
and police, could it become another
playground for terrorists?
By Sujit Bhar in Kolkata
STATES/ West Bengal
W
EST Bengal’s 2,216.7km
porous border with
Bangladesh is seeing
massive infiltration into
India and there are omi-
nous signs that terror
outfits, even dreaded
Islamic State (IS) sympathizers, may have come in. By
unofficial estimates, there are on an average, around
600 illegal entrants into India every day. This, however,
is denied by the Border Security Force (BSF). What was
mainly an economic issue and a struggle for life has
now turned ugly. In the midst, the police, which is
responsible for keeping citizens safe by drawing out
sensitive information to pre-empt attacks, is restive
and short on confidence, laid low by constant political
interference.
According to a highly placed source, the police
force in border districts has been virtually rendered
useless and the BSF, manning the actual border, gets
little or no backup information to act upon. The infil-
tration continues unabated. This is despite the fact
that the BSF here has killed no fewer than 15-20 peo-
InTerror’s
Crosshairs

ple every year. Still, terror walked in,
when in October 2014, the Bardhaman
blast took place.
LAX ADMINISTRATION
Looking back, it was found that the fault lay
with Indian security nets and poorly shared
intelligence. Some time before the blast,
Indian Mujahideen (IM) co-founder Yasin
Bhatkal had been arrested in Kolkata. But a
pathetic lack of coordination between cen-
tral and local intelligence agencies allowed
Bhatkal, travelling on a false identity, to
walk away despite being found with a cache
of fake Indian currency notes. The result
showed up in Pune’s German Bakery
blast in 2010, which killed 17 and injuring
60. It was suspected that the raw material
for the blast was given to Bhatkal in Kolkata
by an IM operative in Nadia, a district
bordering Bangladesh. It is believed that
fake currency was used liberally to source
and purchase raw materials for the blast
and also to fund terrorist sleeper cells with-
in Bengal.
Kolkata is fast becoming the center of
arms caches and transfers from the border
with Bangladesh. This has been proven over
and over again in recent years. Yet intelli-
gence, the very plinth on which any security
environment rests, has been hacked from
inside by political freewheeling.
Ask any officer in-charge of a police sta-
tion in the border districts and one can find
little evidence of pre-emptive arrests. Even if
an arrest is made, political dadas land up
immediately and virtually order the sus-
pect’s release. Added to that are the fast-
changing demographics of these districts,
which indicate that influx of people is taking
place rather than organic growth. Though
the vote bank swells for the ruling Trinamool
party—it was little different in the latter
stages of the Left Front rule—it has grown to
fearsome proportions now and adds to the
overall threat perception.
According to a senior IPS officer who
didn’t want to be named: “Thanedars have
been rendered useless, their capabilities
never allowed to be put to use against
threats and all men at their disposal ren-
dered puppets of the ruling party.” The result
is an absolute vacuum of information and a
situation in which any number of terrorist
threats can emanate.
HANDS TIED
A thanedar India Legal spoke to in South 24
Parganas district, which is extremely suscep-
tible to infiltration, said: “The situation is
such that we dare not take any serious action
against wrongdoers and people found
There are
around 600
illegal entrants
into India
every day.
But what was
mainly an
economic issue
and a struggle
for life has now
turned ugly.
TERROR KNOWS NO BOUNDARIES
West Bengal is India’s new terrorist haven thanks to
the porous Bangladesh border. (Above) Yasin
Bhatkal was arrested with fake currency in Kolkata
DANGEROUS TERRAIN
Sleuths on way to inspect
the site of the Bardhaman
blast. A Bangladesh link to
the mishap has been found

happen through massive, unchecked
infiltration.”
So what is the BSF’s job? Would the new
fencing being constructed help? “The fenc-
ing could help, but the problem remains on
two fronts. First, a fourth of the India-
Bangladesh border is riverine, making it
very difficult to man and patrol. Also, huge
cattle smuggling has resulted in gaping
holes in the fencing,” said the bureaucrat.
This theory has been supported by a BSF
official who has said that with lack of enough
manpower at the border “two BSF jawans
with batons would naturally step aside from
herds of marauding cattle being driven at
full gallop towards the border by smugglers
in the dead of night”.
with suspected movements. Under law, they
can be easily apprehended and may yield
important and useful information, leading
to further arrests. However, they represent a
large section of the vote bank, and with the
2016 assembly elections coming up, the rul-
ing party is in no mood to put public safety
over votes.”
The IPS officer points to the demograph-
ic change. “Not many years ago, this area
had a 40-45 percent Muslim population. I
have myself seen it grow to
around 50 percent in a few years and now I
have information that it has become around
60 percent,” he said. “The rate at which the
demographics have changed cannot
emanate from organic growth. It can only
STATES/ West Bengal
Kolkata is fast
becoming the
center of arms
caches and
transfers from
Bangladesh.
This has been
repeatedly
proven in recent
years. Yet
intelligence,
the very plinth
on which
any security
environment
rests, has been
hacked from
inside by political
freewheeling.

FIREARMS ISSUE
Another sticky issue is that while the BSF
has advanced night vision equipment (such
as LORROS, HHTI, BFSR, night vision gog-
gles), with Bangladesh being a friendly
neighbor, firearms are not issued as a regu-
lar practice at the border. So, even when they
can see infiltrators, they actually have no
viable way of stopping them.
The BSF has taken steps in this regard
though. BSF director-general DK Pathak
reportedly said that his forces had taken an
aggressive strategy, with a special joint task
force being set up with Border Guards
Bangladesh. Mapping of Border on Posts
(BOPs) is on too at a fast pace.
Pathak also said: “The earlier stand of
not retaliating to the attacks of infiltrators
has led to casualties of our troops. Non-
lethal strategy can’t be used at the cost of
casualties of our men. We try to follow non-
lethal means as far as possible, but not
beyond a limit and this strategy has reduced
injury and casualty rates of our troops.”
The fence is a deterrent, but when cattle
smugglers cut the fence, it is used by infiltra-
tors even before it can be repaired. “That is
where local law-keeping agencies—the police
force—come into play. They can keep a watch
on the local population and immediately spot
new people or families and check their cre-
dentials,” said the senior official. “Even that is
problematic. Political interference means
that the infiltrators get their ration cards and
Aadhaar cards, voter IDs and other docu-
mentation done at a quick pace. Some are
able to ‘buy’ land and settle down, even
though there is actually no land available to
‘buy’. The forgery will stay hidden in official
records for years, maybe decades, before
coming to light. Meanwhile, the infiltrators
would have become naturalized citizens,
adding to the vote bank.”
ISLAMIC STATE ATTACK
What has now has lent an ominous color to
this situation is the IS. On November 26, the
IS owned up to an attack on a Shi’ite
DOING WHAT
HE CAN
BSF DG DK
Pathak has taken
some steps to
stop infiltration
(Left) The logistics
for the Pune blast
was supplied from
Nadia, close to
the Bangladesh
border
Police can
immediately
spot new
people or
families. But
political
interference
has ensured
that infiltrators
get their
documents at
a quick pace.
Some even
buy land
and settle
down even
when none
is officially
available.

BAD NEWS NEXT DOOR
Islamic State has assumed
responsibility for an attack on a
Shi’ite mosque in Bangladesh
that claimed one life. Women
affected by the tragedy (above)
comfort each other
IL
mosque in Bangladesh that killed a cleric and
wounded three. This was the second attack
within a month on Bangladesh’s tiny Shia
population. It was a completely pre-planned
attack, with three young men hiding in the
mosque in northwestern Bogra district and
shooting men indiscriminately during
prayers. Not long ago, two foreigners, four
secular bloggers and a publisher were killed
in that country.
According to the IPS officer: “It’s just a mat-
ter of time before IS sympathizers—believed to
be the most brutal of all jihadists—slip into
Indian territory. Their immediate work would
be to establish themselves within the commu-
nity in Bengal—as others have—and then
source funds from within India and from out-
side and even use fake currency notes. Having
done that, they would not only be in a position
to carry out terror attacks within Bengal, but
use their bases to infiltrate other parts of the
country, quite like a virus. Two major rail sta-
tions in Kolkata which are easily accessible
from these border districts are Sealdah and
Howrah. They connect to the rest of the coun-
try,” he said.
But is the state prepared to tackle this?
“Not at all,” he said. “If the BSF is facing sev-
eral handicaps with a very porous border,
the state police has been rendered virtually
helpless through political interference. In
order to fetch short-term political gains, the
state government has allowed long-term
destruction to creep in unchecked.”
The policeman corroborated this. “Small-
time felonies these days—like the stealing a
chicken—are often leading to riot-like situa-
tions. This is new to these areas. We are sit-
ting on a ticking time bomb. The policeman
on foot can only travel so much and oversee
that much. And when we find suspects, one
phone call from him brings the political
dadas to the thana. We are people with fam-
ilies and we need our jobs,” said one of them.
What is scary is that the information
bank has touched a nadir. The BSF has little
to fall back on, and even when this force and
the state police collaborate, they come up
against fake documentation of suspects, cre-
ated deliberately to add them to the vote
bank. “Petty politicking has struck a death
blow to the security atmosphere of this very
sensitive area,” says the officer.
And that’s a dangerous game to play.
STATES/ West Bengal

S
UPERSTITION is as much a
part of Indian life as salt. So
when a flock of crows were
found dead outside the BJP
office in Ahmedabad on Nov-
ember 22, the first leg of polling
to 323 local self-government
bodies in Gujarat, it was seen as a bad omen.
The ruling BJP retained six of eight
municipal corporations—Ahmedabad, Vado-
dara, Rajkot, Surat, Jamnagar and Bhav-
nagar (seen as urban segments)—that went
to the polls that day, while the Congress got
10 against the six it held in 2010. In Rajkot,
the BJP won by a mere four seats (38 to the
Congress’ 34). In Ahmedabad, it was down to
142 as against 151 in 2010. In Surat, it fell to
80 from 98 in 2010. In Vadodara, Bhavnagar
and Jamnagar, the BJP won comfortably.
The Congress, meanwhile, improved its tally
After the Delhi and Bihar poll debacles,
the BJP had to contend with a poor
showing in Gujarat’s local elections. Not
only did it alienate the Patels, but also the
OBCs, tribals and Dalits
By RK Misra in Ahmedabad
STATES/ Gujarat Local Polls/BJP
from 14 (in 2010) to 36 (in 2015).
However, disaster struck in the second leg
of polling on November 29 when over 2.6
crore people cast their franchise for 31 dis-
trict panchayats, 230 tehsil panchayats and
56 municipalities. The Congress swept the
district and tehsil panchayats, bagging 23
and 132 respectively against 39 and one it
held in 2010. On the other hand, the BJP
which controlled 30 of the 31 district pan-
chayats in 2010 was down to a dismal six and
its control of tehsil panchayats whittled down
to 73 from the 192 it controlled in 2010.
There was a tie in Gir-Somnath and Dangs
districts between the two parties.
URBAN VS RURAL
The results show that there was a broad ver-
tical divide. While the BJP retained its old-
time urban vote bank, it was swept away
TOO EARLY IN THE DAY
Even as the BJP workers
celebrated their victory in
Ahmedabad in the civic polls,
the party got a rude shock in
large swathes of the state
AnotherOne
BitestheDust
Photos: UNI

District and tehsil
panchayats:
Congress bags 23 and
132 seats respectively
against 39 and one in
2010.
BJP gets six and 73
against 30 and 192 in
2010.
Municipal corporations:
BJP wins Ahmedabad,
Vadodara, Rajkot, Surat,
Jamnagar, Bhavnagar.
Congress wins 10 seats
against six in 2010.
BlowtoBJP
Rajkot
Jamnagar
S a u r a s h t r a
N o r t h G u j a r a t
C e n t r a l
G u j a r a t
Bhavnagar
Ahmedabad
Viramgam
Mehsana
Vadodara
Surat
Weakeninghold
Areas where the BJP was wiped out
Tenuous hold

COURTING CONTROVERSY
The poll reverses have taken
the BJP by surprise as Modi
had handed over an almost
opposition-less Gujarat to CM
Anandiben Patel. (Below) The
State Election Commissioner,
Varesh Sinha, obliged the
government in the poll process
areas from the BJP that it has been virtually
wiped out in Saurashtra and North Gujarat
and has just a tenuous hold in Central
Gujarat. What’s more, rural Gujarat voted
with a vengeance, with 69 percent turnout
compared to about 47 percent in urban
municipal corporations. Not only did the
Patels move away from the BJP, but last-
ditch desperate attempts to entice OBCs,
tribals and Dalits also failed to yield results.
What led to this rural angst was the heavy
urban tilt in governance and a feeling of
neglect. This was reflected in the state
government’s agrarian policies where agri-
cultural land was given to industries while a
heavy-handed approach was taken towards
rural protests.
While considerably relieved at the show-
ing in urban areas, Anandiben Patel is belie-
ved to be disturbed at the rural “washout”.
She has cause to be for if one was to calculate
the 182 assembly seats, the Congress has
almost drawn even with the BJP.
MODI’S CONCERN
The reverses in Gujarat are also a matter of
concern for the national BJP leadership as
this is the home state of Prime Minister
Narendra Modi and the Gujarat model of
governance has been much bandied about at
the national level. During his 13 years as CM,
Modi had sent the Congress cartwheeling out
of reckoning and handed over an almost
opposition-less state to Anandiben. In just 18
months, the Congress is back with a bang in
Gujarat and as things stand, seems to be
gearing up for a fight during the next assem-
bly elections in 2017. For Modi, after the
reverses in Delhi and Bihar, the loss of
Gujarat will prove a catastrophe, more so
because it will come just two years ahead of
the general elections in 2019.
While a change of guard in Gujarat is not
likely in the near future, it cannot be entirely
ruled out if the slide is not arrested. In fact,
the situation for the BJP in urban Gujarat
would also have been disquieting were it not
for the fact that the State Election Commi-
ssion (SEC) headed by a retired civil servant
of the Gujarat cadre, Varesh Sinha, virtually
acted as a “B” team of the state government.
The SEC obliged the government by going
in rural areas where the Congress made a
spectacular comeback.
Ironically, the Patels, a solid vote bank for
the BJP, did not back the party. They consti-
tute about 14 percent of the total 63 million
population of Gujarat and 21 percent voter
representation. But this time, they chose to
move away from the present establishment
headed by a Patel chief minister, Anandiben
Patel; a Patel state BJP chief, RC Faldu; a
cabinet where seven of 24 ministers were
Patels and an assembly where 42 of 182 leg-
islators were also from their community.
Instead, the Patels cast their lot with the
Congress, where the top three leaders—state
party chief Bharatsinh Solanki, Cong-ress
legislature party chief Shankersinh
Vaghela and another leader Shaktisinh
Gohil—were Kshatriyas.
What began as a demand for
caste-based reservation led by
Hardik Patel, 22, turned into a full-
scale confrontation after a public meet-
ing in Ahmedabad led to a clash with
the police which left eight dead. The
government’s move to put Hardik and
half-a-dozen others behind
bars on sedition charges
only added fuel to fire.
Such has been the
alienation in rural
STATES/ Gujarat Local Polls/BJP

IL
Minister Arun Jaitley, has chosen to turn its
back on the BJP. Unjha, a small town, con-
sidered the cumin seed capital of the country
and a BJP bastion for over two decades, saw
the party facing the ignominy of not being
able to put up a single candidate. While the
Congress managed to win a seat here, the
remaining 35 went to independents, includ-
ing 18 women.
One saving grace for the BJP was that in
Viramgam, the home town of Hardik Patel, it
bettered its tally.
Even as the Congress gets ready to drive
home the advantage of these elections with a
burst of activity, the Aam Aadmi Party (AAP)
has also decided to fish in troubled waters. It
is in the process of restructuring its Gujarat
unit and has appointed regional heads in a
bid to provide a “third option” to the people
of Gujarat in the 2017 elections. According to
Sanjay Singh, an AAP leader from Delhi, his
party would organize 50 rallies in rural
Gujarat over the next six months.
These local self-government polls have
undoubtedly raised the political temperature
in Gujarat and the state could see more
action in the coming months.
along with it in the promulgation of an ordi-
nance to postpone local self-government
elections. Thankfully, the Gujarat High Court
intervened and ordered elections to be held
promptly, leading the SEC to cut a sorry fig-
ure in court.
Even during the holding of elections, the
SEC was mired in controversy when over a
lakh of voter names was found “deleted”. The
Gujarat Congress was scathing in its criti-
cism of the SEC.
The Congress, as expected, is upbeat.
State party chief Bharatsinh Solanki has
termed the poll verdict as a decisive mandate
against the BJP government. Anandiben, on
her part, has gone on record to state that she
will go back to the drawing board to ensure
that she regains the confidence of the rural
areas. Already, she has initiated numerous
measures to undo the damage.
BJP IGNOMINY
The damage has been immense. Mehsana,
the home district of Modi, Anandiben and
numerous other ministers has fallen to the
Congress. Even the village Karnali in Vado-
dara district, adopted by Union Finance
NEW CASTE
EQUATIONS
(Above, L-R) The Patels
reposed their faith in
the Congress, where
AICC spokesperson
Shaktisinh Gohil,
Congress legislature
party leader
Shankersinh Vaghela
and Gujarat Congress
president Bharatsinh
Solanki are all
Kshatriyas

I
Fthe arbitration process has to work
well in India, its legal format must
undergo a change with professionalism
coming in. India had potential to grow
in this arena but lack of professional-
ism on the part of arbitrators and lawyers is
bringing a bad name to the country, said
Chief Justice of India TS Thakur.
He was speaking at an international con-
ference: “Arbitration in the Era of
Globalization” in Delhi, which was organized
by the Indian Council of Arbitration (ICA)
and FICCI.
“Go outside India to figure out why arbi-
tration is not flourishing in India. An arbitra-
tor in India will just sit for two hours for arbi-
tration and is more interested in marking his
presence. But in places like London, an arbi-
Arbitration is an alternate mechanism to resolve disputes and while
it reduces the pendency of cases, arbitrators should be people with
impeccable integrity, says Justice TS Thakur
By Ramesh Menon
LEGAL EYE/Arbitration
trator will sit for eight hours at a stretch as
there is professional dedication. Singapore
had become popular too because of the legal
format it follows. Similarly, if a litigant is
paying a lawyer, then the lawyer cannot seek
an adjournment to suit his schedule. An arbi-
tration bar should be there to bring in profes-
sionalism,” he said.
RESOLVING CASES
Justice Thakur said that due to the huge pen-
dency of cases, the judiciary was supportive
of the alternate dispute resolution mecha-
nism of arbitration and wanted it to lessen its
burden. “We will welcome a system like arbi-
tration as it relieves us of the burden of pen-
dency of cases and helps resolve disputes
quickly. We welcome these measures as it
Honesty is
Not the
Monopoly of
Judges: CJI

consumes less time and money,” he said.
He stressed that the arbitration process
must be pure without any extraneous consid-
eration. “Our greatest concern is the integrity
of the arbitrator when we are sitting in judg-
ment of an award granted. One of the greatest
challenges is to ensure that the arbitrator is of
impeccable integrity. The judiciary also needs
to be sensitized about how it needs to look at
arbitration awards as binding,” he said.
“Honesty is not the monopoly of judges
only and the judiciary does not say that the
entire system barring judges is suspect…
Arbitrators should have impeccable integrity
so that there is no doubt in the minds of con-
cerned parties about the award being decid-
ed. When comparison is being made between
a judicial arbitrator and non-judicial arbitra-
tor, we can say that the judicial arbitrator has
been more reliable and credible," Justice
Thakur said.
In a lighter vein, he said that arbitration
was also popular in Indian mythology. In the
Mahabharata, when the Kauravas and the
Pandavas were fighting, Lord Krishna became
the arbitrator. He tried to settle the fight by
mediating which shows us that mediation is a
divine function. But he failed and so the lesson
is that if we fail, we must remember that even
Lord Krishna failed, he said.
STOP DELAYING
The government has proposed amendments
to the Arbitration and Conciliation Act, 1996,
where an arbitrator will have to settle a case
within 18 months. However, after the
Honesty is not
the monopoly of
judges… We
don’t say that
in the entire
system, only
the judges are
honest and
everyone else is
a suspect.
Arbitrators
should have
impeccable
integrity so that
there is no doubt
in the minds
of concerned
parties about
the award being
decided.
Justice Thakur, Chief
Justice of India
Anil Shakya

IL
besides the Chief Justice. Over five crore
cases are processed yearly in India. Out of
them, two crores are disposed of despite the
lack of infrastructure to do so, he stressed.
Former Supreme Court judge SS Nijjar in
his keynote address said that the commercial
and legal world had realized that arbitration
has to be taken seriously. “India has the tag of
how arbitration is for bravehearts and not for
the weak. For arbitration to succeed, it must
be speedy and the fee structure must be con-
trolled apart from the fact that the arbitrator
must be impartial,” he said.
Other topics discussed at the conference
were bilateral investment treaty awards, the
best arbitration practices, the changing
face of arbitration in India and the global
scenario.
completion of 12 months, certain restrictions
will be put in place to ensure that the arbitra-
tion case does not linger on. Justice Thakur
said that it was heartening that the govern-
ment was conscious of this requirement and
was considering making amendments.
Justice Thakur said that critics of the
judiciary were always pointing to the fact
that there was a huge pendency of cases. As
India grows and emerges as a huge economy,
there are bound to be challenges and there
will be a large spurt of litigations when new
laws are made and challenged. This was a
challenge before the judiciary, he said.
In a country with a population of over
1.25 billion, there are around 15,000 judges
in the lower judiciary, 800 judges in the high
courts and 30 judges in the Supreme Court,
The judiciary
encourages
arbitration to lessen
the burden of
adjudication and
solve business
disputes. Conditions
applied to arbitrators
will be a deterrent.
Justice SS Nijjar, former judge,
Supreme Court
India has set a
precedent in judiciary
amongst SAARC
nations and that
could be replicated
in arbitration with
the support of the
government and
the judiciary.
NG Khaitan, President, Indian
Council of Arbitration
The arbitration
practice in India
should be more
contemporary, in
line with global
standards, making
the business
environment more
stable and certain.
Dr Jyotsna Suri, President,
FICCI
Photos: Anil Shakya
LEGAL EYE/Arbitration

IL
reforms, which as I said earlier, began in 1996."
ARBITRATION ACT
Though he patted the Congress government of
1991 for economic reforms, he did not stop to crit-
icize it for the amendment in the arbitration act.
"Although we had an amendment in 1996
and it was thought that it would be an improve-
ment on the earlier enactment, unfortunately
our experience has been that because of the
intervention of our courts at every stage at the
time of appointment of arbitrator, at the time of
passing an interim order and even at the time
of the award being given and the appeal, the
way Section 34 of the Arbitration and
Conciliation Act of 1996 was interpreted, it
probably created more problems for the busi-
ness community," said Malhotra. The objective
of quick resolution of commercial disputes was
not achieved, he said.
“Justice Madan Lokur had mentioned that
when this act was passed, we came to know
there were certain deficiencies which needed to
be corrected. And the process of correcting or
amending this act also began way back in
2003," said Malhotra.
LEGAL EYE/ India’s Reforms
I
N a bold statement recently, law secre-
tary PK Malhotra said the country
should give credit to the Congress gov-
ernment led by Prime Minister PV
Narasimha Rao and then finance minis-
ter, Dr Manmohan Singh, for initiating the
reforms that we are seeing today. Coming on the
heels of a diktat from the present BJP govern-
ment asking bureaucrats to adhere to a certain
code of conduct, this statement was surprising.
Malhotra was speaking at a conference on
Alternate Dispute Resolution organised by
ICDAR (International Conference on
Document Analysis and Recognition). He said:
"The process of liberalization of the economy in
India started in 1991 when PV Narasimha Rao
was the PM and Dr Manmohan Singh was the
finance minister. With that process of liberaliza-
tion, foreign firms started coming here and par-
ticipating in the Indian business community.
And if today, we are seeing any economic reform
and stability in our economy as compared to
other economies, the credit goes to the reform
process that began in 1991."
The law secretary then went on remind the
legal fraternity of the need for judicial reforms
and especially in the Arbitration and
Conciliation Act, 1996. "With international
companies coming and establishing their com-
mercial interests here, obviously the number of
such disputes is likely to increase and it has
increased, thereby necessitating judicial
UNEXPECTED
ENCOMIUM
PK Malhotra (centre)
believes it’s the former
PM and his finance minis-
ter Manmohan Singh
(right) who ushered in the
new economic model
“Rao Architect of Liberalization”
The BJP has debunked Congress initiatives,
but its own law secretary has praised the
ex-PM for opening up the economy
By Neeta Kolhatkar

An analogy can be
drawn between a close
family and a pluralistic,
multi-religious,
multi-cultural India.
This family model
can promote
Hindu-Muslim unity
more effectively than
the Hindutva model
By Abhay Vaidya
United
IndiaisLike
aFamily
SOCIETY/Hindu Rashtra Vs Famliy
I
t may sound incredulous, but the
fact is that Indian liberals and
right-wing organizations such as
the RSS have a common meeting
point which is fundamental to
India’s identity and ethos. Both
agree that at the very core of
India is its evolution as a pluralistic, multi-
religious, multi-cultural and multi-ethnic
society. This in itself is a good starting point
for any discussion on India, although from
this point on, the RSS and its political wing,
the BJP, take a divergent, divisive path in its
pursuit of a Hindu Rashtra.
Consistent with its dream of creating a
Hindu Rashtra ― a nation with Hindus and
Hinduism at the helm ― the RSS claims that
India is fundamentally a pluralistic society
because this is the very character of
Hinduism. The RSS then rejects the word
“secularism” calling it an unnecessary impo-
sition of Western thought on India while
interpreting it narrowly as “an equality of all
religions” when in fact, secularism means the
separation of state from religion and reli-
gious influence.
SECULARISM DEBATE
While addressing a seminar on secularism in
Chennai, senior RSS leader and ideologue
Manmohan Vaidya had said that “secularism
evolved along the themes of separation of the

India legal 31 December 2015

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