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India Legal 31 December 2018

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Promise and Performance
A year-end analysis of key controversial issues the apex court will have to confront when it reconvenes after its winter break

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India Legal 31 December 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com December31, 2018 Genocide Law: Why India lags behind Madhav Godbole: Former home secretary speaks out on the judiciary PromiseandPerformanceAyear-endanalysisofkeycontroversialissuestheapexcourtwillhavetoconfront whenitreconvenesafteritswinterbreak Babri Masjid CBI RafaleSabarimala SUPREME COURT Alok Verma, CBI director Rakesh Asthana, CBI special director
  2. 2. 4 December 31, 2018 HE mob violence in Bulandshahr in Uttar Pradesh on December 3, 2018, instigated and engineered with mali- cious intent, which led to the cold- blooded murder of a police officer brave enough to step forward single-handedly to pacify the mob, marks the most dangerous turn yet in the direction taken by the politics of hate in recent times. It shows that in India’s most popu- lous state, Uttar Pradesh, the fundamental princi- ples of governance, constitutional ethics and humane social conduct stand perverted. The chief minister of the state acts as a high priest of the agenda of bigotry and majoritarian supremacy— an agenda which now seems to take precedence over everything else. The paragraph above, brimming with barely controlled outrage, was jointly penned by some 80 retired civil servants who have run the Gov- ernment of India for several decades serving under different political dispensations. Their devotion to their country and its constitutional value system is beyond question. Among them are stalwarts like foreign secretaries Sujatha Singh, Shyam Saran and Shivshankar Menon who was also National Security Advisor; former Delhi Lt Governor Najeeb Jung; former Ambassador to Japan Aftab Seth and former Punjab and Maha- rashtra police chief Julio Ribeiro. (see box) Enough is enough, they are saying. They are also correctly pointing out that it is their duty to protect from anarchy, misgovernance, thuggery and government-instigated violence a country which they have cradled, and actively helped to build and guide into progressive modernism. “This is a critical moment,” they say in their open letter, “and we cannot take it lying down anymore. We call upon all citizens to unite in a crusade against the politics of hate and division— a politics which aims to destroy the fundamental principles on which our Republic is founded. We ask all citizens to whom constitutional values matter to join us in reasserting our sovereignty as citizens.” Their immediate aim is to press for the resig- nation of Chief Minister Yogi Adityanath for his failure to abide by the Constitution to which he has sworn allegiance. “We know that this can happen, if together, we build a groundswell of public opinion by which we hold him accountable for his conduct and compel him to resign.” They are also asking all citizens to: Remind the chief secretary, the Director General of Police, the home secretary, and all other members of the higher civil services con- cerned, of their constitutional duty to fearlessly implement the Rule of Law rather than the per- verse dictates of their political masters. Request the High Court at Allahabad to take suo motu cognisance of this incident and order a judicial inquiry supervised by them to uncover the true facts, expose the political collusion, fix responsibility and recommend action. Work towards a citizen-led national campaign against the politics of hate and violence—in par- ticular, the structural violence directed against Muslims, Adivasis, Dalits and women—violence which finds sustenance in the structures of politi- cal power. Salute Inspector Subodh Kumar Singh for his bravery in standing up for constitutional values and refusing to yield to political pressure even at the cost of his life and for setting an example to his children and the younger generation that val- ues matter more than career success. It is indeed perverse and unconscionable that the Yogi who became chief minister has now officially equated the alleged killing of a cow with the killing of a police officer and described this criminality variously as an “accident” and a “conspiracy”. Why is this incident such a frightening indica- tor of the complete collapse of constitutional val- ues? As the letter states: “This is not the first instance of a situation intentionally created to foment communal tension. The history of UP is replete with such instances. This is not the first time that a policeman has been killed by a fren- “HOOLIGANISM AND THUGGERY” Inderjit Badhwar T Theletterwas jointlypennedby some80retired civilservantswho haverunthe GovernmentofIndia forseveraldecades, servingunder differentpolitical dispensations.Their devotiontotheir countryandits constitutionalvalue systemis beyondquestion. Letter from the Editor
  3. 3. zied mob. This is also not the first time that the politics of cow protection has been used as a means of isolating and cornering the Muslim community and deepening the social divide. “All this we have seen before but, so far, we had the confidence that whenever a political party actually forms a government, it keeps its partisan political agenda at bay and begins to exercise power with a sense of responsibility so as to gain wider political acceptability. The Bulandshahr episode, which follows a succession of events aimed at isolating and intimidating Muslim com- munities in UP, shows that, under Yogi Aditya- nath, that confidence is misplaced and that hooli- ganism and thuggery have been mainstreamed into governance not just to intimidate minorities but to teach a lesson to anyone, including police personnel and others in the administration, who dare to be even-handed in their approach to minority communities.” T he letter further avers that while it may be premature to come to conclusions about the murder of Inspector Subodh Kumar Singh before the investigations are over, “there is no doubt that there was nothing spontaneous about the violence that led to his killing, nor is there any doubt as to who the political elements were that aided and abetted the violence. This was a deliberate attempt to display majoritarian muscle and send a message to the Muslim com- munities living in the region that they have to live in fear, accept their subordinate status and con- form to the cultural diktats of the majority”. Ample videographed evidence exists, says the letter, to show that those engaged in violence and their leaders, as well as those who egged them on, are allowed to roam scot-free, while, at the same time, alleged cow killers, against whom not a shred of evidence exists, are taken into custody, just because they are Muslims. Three of the main accused in the mob violence leading to the death of the police officer flaunt their affiliations to the Sangh Parivar and one of them openly declares that the slain police officer was corrupt, friendly with Muslims and anti-Hindu, implying thereby that he deserved his fate. The world over, in any civilised society, the killing of a policeman is a more serious offence than any other crime because it represents an assault on the very basis of that civilisation, the signatories observe. “It brooks no tolerance and even the most fractious of social and political groups come together to ensure that the perpetra- tors of such a crime are given exemplary pun- ishment so that no one ever dares to attack the | INDIA LEGAL | December 31, 2018 5 FRENZY OF HATE (Above left) Mob violence in Bulandshahr on December 3, 2018 (Above) Inspector Subodh Kumar Singh was praised for standing up for constitutional values and refusing to yield to political pressure even at the cost of his life (Left) The letter pressed for the resignation of UP Chief Minister Yogi Adityanath for acting as a high priest of the agenda of bigotry and majoritarian supremacy UNI TwitterTwitter
  4. 4. authority of law. In UP, on the other hand, we are witness to the entire administration, presided over by a chief minister who flaunts his bigotry as his badge of identity, preparing the ground not for bringing the perpetrators to book but for pro- tecting them as defenders of faith and culture. This is the Rule of Lawlessness.” I n a bold and frontal attack on serving officers complicit in the crime, the signatories point out that “with honourable exceptions”, their colleagues in service, in the police and the civil administration, appear to have capitulated readily to this “perverted political order. They seem to have forgotten that their primary allegiance is to the Constitution and the Rule of Law, and that their constitutional status provides them an armour of such extraordinary strength that, had they taken steps to check the growing menace of the Hindutva brigade, they could certainly have prevented the outbreak of violence. Instead, they not only allowed these hooligans to grow in confi- dence and gather political strength, they helped them gain impunity in their lawless actions. “Our Prime Minister, who is so voluble in his election campaigns and who never tires of telling us of how the Constitution of India is the only holy book he worships, maintains stony silence even as he sees a chief minister handpicked by him treat that same Constitution with sheer contempt. It is evident that for the Sangh Parivar, constitutional morality is of no value and is 6 December 31, 2018 Letter from the Editor Theletterconcludes that“neverbeforein recenthistoryhasthe politicsofhate, divisionandexclusion beensodominant andthepoisonous ideologywhich informsitpenetrated sodeepintothe bodypolitic....” P Ambrose, IAS (Retd), Former Additional Secretary, Ministry of Shipping & Transport, GoI L Bajaj, IAS (Retd) Former Chairman, Administrative Reforms and Decentralisation Commission, Govt of Uttar Pradesh Bala Baskar, IAS (Retd) Former Principal Adviser (Finance), Ministry of External Affairs, GoI Vappala Balachandran, IPS (Retd) Former Special Secretary, Cabinet Secretariat, GoI Gopalan Balagopal, IAS (Retd) Former Special Secretary, Govt of West Bengal Chandrashekhar Balakrishnan, IAS (Retd) Former Secretary, Coal, GoI Meeran C Borwankar, IPS (Retd) Former DGP, Bureau of Police Research and Development, GoI Ravi Budhiraja, IAS (Retd) Former Chairman, Jawaharlal Nehru Port Trust, GoI Sundar Burra, IAS (Retd) Former Secretary, Govt of Maharashtra Kalyani Chaudhuri, IAS (Retd) Former Additional Chief Secretary, Govt of West Bengal Anna Dani, IAS (Retd) Former Additional Chief Secretary, Govt of Maharashtra Surjit K Das, IAS (Retd) Former Chief Secretary, Govt of Uttarakhand Vibha Puri Das, IAS (Retd) Former Secretary, Ministry of Tribal Affairs, GoI R Dasgupta, IAS (Retd) Former Chairman, Food Corporation of India, GoI Nareshwar Dayal, IFS (Retd) Former Secretary, Ministry of External Affairs and former High Commissioner to the United Kingdom Pradeep K Deb, IAS (Retd) Former Secretary, Dept of Sports, GoI Nitin Desai, IES (Retd) Former Secretary and Chief Economic Adviser, Ministry of Finance, GoI Keshav Desiraju, IAS (Retd) Former Health Secretary, GoI G Devasahayam, IAS (Retd) Former Secretary, Govt of Haryana Sushil Dubey, IFS (Retd) Former Ambassador to Sweden P Fabian, IFS (Retd) Former Ambassador to Italy Prabhu Ghate, IAS (Retd) Former Addl Director General, Department of Tourism, GoI Arif Ghauri, IRS (Retd) Former Commissioner of Income Tax, GoI Gourisankar Ghosh, IAS (Retd) Former Mission Director, National Drinking Water Mission, GoI Hirak Ghosh, IAS (Retd) Former Principal Secretary, Govt of West Bengal Tuktuk Ghosh, IAS (Retd) Former Special Secretary and Financial Adviser, Ministry of Road Transport & Highways, Shipping & Tourism, GoI Meena Gupta, IAS (Retd) Former Secretary, Ministry of Environment & Forests, GoI Ravi Vira Gupta, IAS (Retd) Former Deputy Governor, Reserve Bank of India Deepa Hari, IRS (Resigned) Vivek Harinarain, IAS (Retd) Govt of Tamil Nadu Sajjad Hassan, IAS (Retd) Former Commissioner (Planning), Govt of Manipur MA Ibrahimi, IAS (Retd) Former Chief Secretary (rank), Govt of Bihar Kamal Jaswal, IAS (Retd) Former Secretary, Department of Information Technology, GoI Jagdish Joshi, IAS (Retd) Former Additional Chief Secretary (Planning), Govt of Maharashtra Najeeb Jung, IAS (Retd) Former Lieutenant Governor, Delhi John Koshy, IAS (Retd) Former State Chief Information Commissioner, West Bengal Ajai Kumar, Indian Forest Service (Retd) Former Director, Ministry of Agriculture, GoI Arun Kumar, IAS (Retd) Former Chairman, National Pharmaceutical Pricing Authority, GoI Brijesh Kumar, IAS (Retd) Former Secretary, Department of Information Technology, GoI TheSignatories
  5. 5. necessarily subordinate to the ideals of majoritar- ian supremacy.” I n what is possibly the most authoritative and scathing denunciation of a government and an administration, by some of the most powerful former civil servants who once ran almost every branch of India’s governance, they conclude: “Never before in recent history has the politics of hate, division and exclusion been so dominant and the poisonous ideology which informs it pen- etrated so deep into the body politic. Never before has hate been directed with such calculated intent against minority communities, hate which is nursed, aided and abetted by those in power. Violence has been given social and political sanc- tion and perpetrators of violence have been treat- ed with kid gloves while victims have been pun- ished and harassed. “It is a measure of the rapid erosion of consti- tutional values that we, as a group, have felt a compelling need to speak out as many as nine times in the last eighteen months. The pace of erosion has been frightening and with each slip we seem to sink further into a lawless abyss.” | INDIA LEGAL | December 31, 2018 7 Harsh Mander, IAS (Retd) Govt of Madhya Pradesh Aditi Mehta, IAS (Retd) Former Additional Chief Secretary, Govt of Rajasthan Shivshankar Menon, IFS (Retd) Former Foreign Secretary and Former National Security Adviser Sonalini Mirchandani, IFS (Resigned) GoI Sunil Mitra, IAS (Retd) Former Secretary, Ministry of Finance, GoI Noor Mohammad, IAS (Retd) Former Secretary, National Disaster Management Authority, Govt of India Deb Mukharji, IFS (Retd) Former High Commissioner to Bangladesh and former Ambassador to Nepal Shiv Shankar Mukherjee, IFS (Retd) Former High Commissioner to the United Kingdom Pranab S Mukhopadhyay, IAS (Retd) Former Director, Institute of Port Management, GoI Nagalswamy, IAS (Retd) Former Principal Accountant General, Tamil Nadu & Kerala Amitabha Pande, IAS (Retd) Former Secretary, Inter-State Council, GoI Niranjan Pant, IA&AS (Retd) Former Deputy Comptroller & Auditor General of India Alok Perti, IAS (Retd) Former Secretary, Ministry of Coal, GoI R Raghunandan, IAS (Retd) Former Joint Secretary, Ministry of Panchayati Raj, GoI K Raghupathy, IAS (Retd) Former Chairman, Staff Selection Commission, GoI P Rai, IAS (Retd) Former Director General, National Skills Development Agency, GoI P Raja, IAS (Retd) Former Chairman, Maharashtra Electricity Regulatory Commission Babu Rajeev, IAS (Retd) Former Secretary, GoI Y Rao, IAS (Retd) Julio Ribeiro, IPS (Retd) Former Adviser to Governor of Punjab & former Ambassador to Romania Aruna Roy, IAS (Resigned) Manabendra N Roy, IAS (Retd) Former Additional Chief Secretary, Govt of West Bengal Deepak Sanan, IAS (Retd) Former Principal Adviser (AR) to Chief Minister, Govt of Himachal Pradesh Shyam Saran, IFS (Retd) Former Foreign Secretary and Former Chairman, National Security Advisory Board C Saxena, IAS (Retd) Former Secretary, Planning Commission, GoI Ardhendu Sen, IAS (Retd) Former Chief Secretary, Govt of West Bengal Aftab Seth, IFS (Retd) Former Ambassador to Japan Ashok Kumar Sharma, IFS (Retd) Former Ambassador to Finland and Estonia Navrekha Sharma, IFS (Retd) Former Ambassador to Indonesia Pravesh Sharma, IAS (Retd) Former Additional Chief Secretary, Govt of Madhya Pradesh Raju Sharma, IAS (Retd) Former Member, Board of Revenue, Govt of Uttar Pradesh Rashmi Shukla Sharma, IAS (Retd) Former Additional Chief Secretary, Govt of Madhya Pradesh Ashok Vardhan Shetty, IAS (Retd) Former Vice Chancellor, Indian Maritime University, GoI Rajdip Singh, IPS (Retd) Former Special Director General, Border Security Force, GoI Sujatha Singh, IFS (Retd) Former Foreign Secretary, GoI Tirlochan Singh, IAS (Retd) Former Secretary, National Commission for Minorities, GoI Jawhar Sircar, IAS (Retd) Former Secretary, Ministry of Culture, GoI, & for- mer CEO, Prasar Bharati Narendra Sisodia, IAS (Retd) Former Secretary, Ministry of Finance, GoI Thanksy Thekkekera, IAS (Retd) Former Additional Chief Secretary, Minorities Development, Govt of Maharashtra SS Thomas, IAS (Retd) Former Secretary General, National Human Rights Commission Geetha Thoopal, IRAS (Retd) Former General Manager, Metro Railway, Kolkata Hindal Tyabji, IAS (Retd) Former Chief Secretary rank, Govt of Jammu & Kashmir Ramani Venkatesan, IAS (Retd) Former Director General, YASHADA, Govt of Maharashtra Arvind Verma IPS (Resigned) Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  6. 6. ContentsVOLUME XII ISSUE7 DECEMBER31,2018 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 8 December 31, 2018 16Promise and Performance A year-end analysis of key controversial issues the Supreme Court will have to confront when it reconvenes in 2019 after its winter break LEAD 20Death by Negligence The Supreme Court has expressed concern over the number of pothole deaths in the last five years and the lack of seriousness accorded to road safety by concerned authorities SUPREMECOURT 24 Convicted after 34 Years In a painful closure for the families of the 1984 riots victims, the Delhi High Court has sentenced former Congress MP Sajjan Kumar to spending the remainder of his life in jail COURTS
  7. 7. | INDIA LEGAL | December 31, 2018 9 Affordable and Viable REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design: ANTHONY LAWRENCE Ringside .........................10 Courts.............................11 Is That Legal...................12 Delhi Durbar ...................14 Media Watch ..................49 Availability of essential diagnostics, proper pricing and quality control will be the positive takeaways once the National List of Essential Diagnostics is formulated by the ICMR 48 Objection Overruled 44 The Kerala High Court has come to the rescue of those freely expressing themselves against powerful people on social media A Lucid Interpretation In the third of India Legal’s series on significant judgments by former chief justices, we bring you a verdict by former CJI Dipak Misra on the issue of jurisdiction of Indian courts in international arbitration 34 An Affair Gone Wrong The Bombay High Court has ruled that phone sex does not amount to adultery and cannot be a cause for abetment of suicide 28 FOCUS BOOKEXTRACT SPECIAL By ordering a stay on the online sales of medicines, the Delhi High Court has stopped an illegal practice which endangers health Lakes in Peril 40 The NGT has pulled up the Karnataka government for the sorry state of lakes in Bengaluru and appointed former Supreme Court judge Santosh Hegde to head a lake conservation panel Building New Bridges 46 After the Kartarpur shrine in Pakistan was opened to Indian pilgrims, the Punjab government has proposed a land swap up to four kilometres near the shrine by both countries I Beg to Differ In a post-script to the Introduction of the reprint of the book, The Judiciary and Governance in India, former Home Secretary and Secretary, Justice, Madhav Godbole talks about recent developments and decisions of the Supreme Court which raise serious forebodings HEALTH Caught in a Web 36 Time for a Genocide Law Sajjan Kumar’s conviction in the 1984 riots case shows the need for such a law in India. But is there political will? 26 30 Fight Over Pollution 38 In a heartening move, the Madras High Court has set aside an NGT order which allowed the reopening of the Sterlite Copper plant in Tuticorin ENVIRONMENT Quota Clamour 42 Frustration among the youth and reservation sops in Maharashtra have prompted the Gujarat government to offer benefits for the newly-carved “unreserved classes” STATES
  8. 8. 10 December 31, 2018 “ RINGSIDE “I promise you that if, by the grace of God, we come to power, we will bring the resolution of regional autonomy within 30 days which will touch people’s hearts.” —National Confer- ence President Farooq Abdullah, on giving autonomy to different regions of Jammu and Kashmir “Metro should be affordable for every- one.... They compare DMRC fares with fares in global cities, but do they also check the GDP and minimum wages prevalent there?.... —Delhi Deputy CM Manish Sisodia on the need to bring down Metro fares “Talks are on to forge a grand alliance at the national level... So I think everyone should sacrifice their ego as much as possi- ble in the interest of the nation and to save the constitution and the country....” —RJD leader Tejash- wi Yadav after RLSP’s Upendra Kushwaha joined the “grand alliance” “`15 lakh will not come at a single time, but will come slowly. The govern- ment does not have so much money. The RBI was asked for money but they are not giving….” —Union Minister and NDA partner Ramdas Athawale on PM Modi's comment to bring back black money to India “This is just the beginning. One after another, there will be more typo errors… typo errors will soon be visible in the JPC issue, Rafale issue, farm loan waiver and demonetisation.…” —Congress President Rahul Gandhi to the media on the centre seeking correction in the Supreme Court’s Rafale judgment “Many...attempted to form an alliance, bringing all leaders together. If someone is giving his own opinion, we cannot take this... as that of the alliance.” —SP chief Akhilesh Yadav on DMK chief MK Stalin suggesting Rahul Gandhi as the PM candidate for the 2019 polls “Many industries come but offer em- ployment to outsi- ders...Uttar Pradesh and Bihar...people from MP are dep- rived of employment opportunities. They (industries) will get incentives only if they employ 70 percent local people.” —Madhya Pradesh CM Kamal Nath “Having scrambled the egg needlessly when GST was introduced, Government is trying to unscramble it! Typical of NDA. BJP/NDA gover- nance mantra is ‘Leap before you look’. Which is the reason for the damage caused by GST to businesses, especially MSMEs. We should have started with 18 percent as the standard rate....” —Former Union Finance Minister P Chidambaram, on Twitter
  9. 9. The Delhi High Court quashed the summons issued by a trial court to Union minister Smriti Irani in a defamation complaint filed against her by Congress leader Sanjay Nirupam. Justice RK Gauba, the single judge, however, dismissed a plea by Nirupam seeking to quash the summons issued to him in a cross-defamation complaint filed by Irani, and said the case against Niru- pam will continue. Irani and Nirupam had allegedly made “derogatory and scurrilous comments” against each other in a TV debate held in December 2012 after the Gujarat state election results, and subsequently filed crimi- nal defamation complaints against each other. Courts | INDIA LEGAL | December 31, 2018 11 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team Calcutta HC stays BJP rath yatras Aspecial CBI court in Mumbai acquitted all 22 accused in the alleged fake encounter killings of Sohrabuddin Sheikh, his wife, Kausar Bi, and aide, Tulsiram Praja- pati in 2005. Passing the order, special judge SJ Sharma said the prosecu- tion could not establish a nexus between the accused and the alleged offences, and “210 witnesses were brought but satisfactory evi- dence didn’t come and witnesses turned hostile”. Sheikh, an alleged gangster, and his wife were killed, a few days apart, in two separate fake encounters in 2005 by the Gujarat police. His aide, Prajapati, was killed in another fake encounter in 2006 in a joint operation by the Gujarat and Rajasthan police. The police had alleged that Sheikh was a Lashkar-e-Taiba (LeT) operative and was on his way to Gujarat to assassinate a major political leader. After much wrangling, the CBI took over the case in 2010 and charged the accused, including serving and retired police officials, with murder and crimi- nal conspiracy, among other charges. This order has come as a relief for the Gujarat government while justice continues to elude the three victims. Advocate Madhavi Divan has been appointed the additional solicitor general (ASG) in the apex court with effect from December 17, 2018, till June 30, 2020. With this, she becomes the third wom- an to have been appointed ASG, senior advocate Indira Jaising and incumbent senior advocate Pinky Anand being the earlier appointees. Divan obtained a degree in English from St Stephen’s College, Delhi University, and then pursued law at University of Cambridge, UK. After starting her practice in the Bombay HC, she moved to the top court where she rep- resented two state governments— Gujarat and MP. Delhi HC relief for Smriti Irani in defamation case While hearing a PIL seeking facilities for street children, the Bombay High Court asked the state government to consider con- ducting a census of such children in Mumbai and other parts of the state. The last such census was conducted by the Tata Institute of Social Sciences (TISS) in 2013 and pegg- ed their number at over 37,000, with around 30% being girls. During the hearing, two TISS professors, appointed as amicus curiae, out- lined three key steps to protect them—prov- iding night shelters, special de-addiction cen- tres, and restarting the work of the task force headed by the state chief secretary. After hearing this, a bench of Chief Justice Naresh Patil and Justice Makarand Karnik directed the state to have a meeting of the task force to discuss the problems faced by street chil- dren and asked, “What has the committee done in the past three to four years?” Adivision bench of the Calcutta High Court put on hold a sin- gle-judge bench verdict, permitting the state BJP to hold its proposed rath yatras across West Bengal. The bench also directed the single- judge bench to take a fresh look at the case and consider feedback from state intelligence units before taking a final call. The yatras, sch- eduled to be flagged off by BJP chief Amit Shah on December 7, had to be postponed after the TMC government twice denied permis- sion to hold them, citing fear of communal unrest. Following this, the BJP had moved the HC. Bombay HC orders census of street children Acquittal for Sohrabuddin case accused Advocate Madhavi Divan is new ASG
  10. 10. 12 December 31, 2018 ISTHAT What is a valid will? What are the major ingredients of a valid will? Is an “informal will” valid? If you are of sound mind and at least 18 years of age, you can make a will. A valid will is one which complies with the legal requirements set out in legislation. To be valid, a will must be: In writing—handwritten, typed, or printed Signed—ideally your signature should be at the bottom of each page and at the end of the will Witnessed—two adult witnesses (who are not beneficiaries) must be present when you sign the will, and they must also sign at the end of the document. You and the two witnesses must all be together when the will is signed and witnessed. If a will is not executed in strict compli- ance with these requirements, it will be considered “informal”. An informal will may be accepted under certain circum- stances, but it is safer to comply with these relatively simple formalities. How is reservation in education and jobs considered legal when the Constitution prohibits discrimination based on caste? There is an exception to Article 15, which states that there shall be no discrimination on grounds of religion, race, caste, sex, pla- ce of birth or any of them. The exception is provided under Article 15(4) and says that: “Nothing in [Article 15] or in clause (2) of Article 29 shall prevent the State from mak- ing any special provision for the advance- ment of any socially and educationally bac- kward classes of citizens or for the Sche- duled Castes and Scheduled Tribes.” In add- ition to Article 15(4), Article 46 requires the State to promote with special care the edu- cational and economic interests of the wea- ker sections, in particular, the Scheduled Castes and Scheduled Tribes, and protect them from social injustice and exploitation. Constitutional Basis for Reservation —Compiled by Divyansh Trivedi Essential Components of a Valid Will Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis If I have clicked a photograph, can it be patented or copyrighted? How does one determine if their work is patentable or copyrightable? Patents are for inventions, whereas copy- rights refer to the expression of an idea, such as an artistic work. They are govern- ed by different laws. Inventions that are new, have an inventive step and are capa- ble of industrial application can be patent- ed under the Indian Patent Act, 2005. To qualify for copyright protection, a work must be original, in the sense that it is the author's own intellectual creation, and must exist in some physical form. Accor- ding to Section 2(c) of the Copyright Act, 1957, “artistic work” means a painting, sculpture, drawing (including a diagram, map, chart or plan), engraving or photo- graph, whether or not such work has artistic quality. Therefore, a photograph is an artistic work which is copyrightable and not an invention that is patentable. A Photograph is Copyrightable ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Is an Indian citizen partner required for a foreigner or foreign company to start a business in India? No, if a foreign company wants to start a business in India in the form of a branch office or liaison office or as a 100 per cent subsidiary, then it does not require an Indian citizen partner. Such legal entities, if set up with the required permissions, can legally repatriate the funds back to their country at any point of time. Only in cases of joint ventures is an Indian part- ner required. In addition to that, there are restrictions with regards to the permis- sibility of FDI in certain sec- tors. If it is a 100 per cent automatic route sector, then approval of the government to start the business is not necessary. In such auto- matic route cases, paper- work is to be done through an authorised dealer and approved by the Reserve Bank of India. Starting a Business in India
  11. 11. 14 December 31, 2018 An inside track of happenings in Lutyens’ Delhi Former Prime Minister Manmohan Singh, 86, called the “speak-less one” by his critics, has as strong a presence—as well as a voice—as he did when he occupied the top post. He not only attends plenary sessions of his party, seated next to Sonia Gandhi, but is also playing a pow- erful and active role in shaping the eco- nomic policies platform for the Congress in the upcoming 2019 elections. Also, he is a master at taking sharp but politely worded digs and jabs at Narendra Modi. Over the years, he has repeatedly accused Modi of using intem- perate language unbecoming a prime minister and advised his successor against intemperate behaviour in public discourse. Also, in an indirect upper-cut to Modi on the occasion of the release of his book, Changing India, in reference to Modi’s never having held a press confer- ence since he became PM, Singh said: “I was not the Prime Minister who was afraid of talking to the press. I met the press regularly, and on every foreign trip that I undertook, I had a press confer- ence on return.” He continued: “People say I was a silent Prime Minister, but these volumes will speak for themselves. I don’'t want to boast about my achieve- ments as a Prime Minister, but the events that took place are well described in these volumes.” Even though Singh suffers from long- standing diabetes and has undergone several open heart surgeries, he obvio- usly has miles to go…. VOICE OF MANMOHAN It was indeed ironical that shortly before Kamal Nath (above) took over as Madhya Pradesh chief minister, Sajjan Kumar (right) was sentenced to jail by the Delhi High Court for his role in the 1984 pogrom in Delhi in which more than 3,000 Sikhs were butchered following the assassination of Indira Gandhi. Nath and Kumar are both devout Congressmen (Kumar has now resigned) whose party was accused of egging on the massacre. Nath was summoned before the Nanavati Commission investigating the ethnic clea- nsing but was exonerated due to lack of evidence. Nath’s opponents, including the Akali Dal, have gone on the offensive, saying that his elevation will create an anti- Congress sentiment and hurt the party in the 2019 elections. The question was debated at length within the Congress high command and the main factor favouring Nath was that he, unlike Kumar, has never been charged with a crime. In terms of pure perceptions, will Nath’s selection damage the Congress in Punjab or areas with substantial Sikh voters? The party’s top echelons, including Punjab Chief Minister Amarinder Singh, think not. This view is backed by intellec- tuals like Professor Jagrup Singh Sekhon, head of the political science department at Guru Nanak University in Amritsar, who said the Sikhs in Madhya Pradesh had voted for Nath. He told Scroll: “If they do not have any problem with him, why would Sikhs in Punjab be bothered? Had that been the case, the Congress would never have come to power in Punjab after 1984. People only seek that justice is done.” Also, the Congress has ruled Punjab thrice since the 1984 massacre, and Sheila Dikshit of the Congress con- tinued her sway as Delhi CM for 15 years. WASKAMALNATHAMISTAKE?
  12. 12. | INDIA LEGAL | December 31, 2018 15 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Delhi Durbar Following the merciless drubbing received by the ruling BJP in the three states of the Hindi heart- land, the party was in for another severe embar- rassment. Recently, when Prime Minister Narendra Modi visited Maharashtra to lay foundation stones for metro rail projects, Kishore Tiwari, a leading luminary of the state’s farmers’ movement, demanded that Modi and party president Amit Shah be replaced. He recom- mended Union minister Nitin Gadkari (below) as a suitable alternative to Modi. Tiwari is the chairman of the state government’s Vasantrao Naik Sheti Swavalamban Mission (VNSSM). In his letter to RSS chief Mohan Bhagwat and general secretary Bhaiyyaji Suresh Joshi, Tiwari laid the de- feat of the BJP in Raj- asthan, Madhya Pradesh and Chhattisgarh at the feet of “arrogant leaders who implemented devas- tating decisions like demonetisation, GST, fuel prices hike and other anti- people measures. “Leaders who pursue an extremist and dictatori- al attitude in the party and government are danger- ous for the society and the country... This has been witnessed before and if history is not to be repeated, hand over the reins to Gadkari for the 2019 polls.” Tiwari said that Modi and Shah were concerned “only in grandiose Bullet Trains and Metro Rail projects”. Gadkari has not been silent either. Even as the Modi-Shah duo’s star campaigner, Yogi Adityanath, flopped in all the states where he campaigned, especially in pushing hard on building the Ram Mandir ASAP, Gadkari, speaking at a TV channel conclave, argued that the temple in Ayodhya should be built through mutual consent because it is “not a communal or religious issue”. Ashok Gehlot, the irascible and snappish new Congress chief minister of Rajasthan, has begun to double down on exhibiting his political pri- macy even though—under a compromise formula worked out by party chief Rahul Gandhi following the election triumph in the state elec- tion—he must share power with Deputy CM Sachin Pilot. It is widely known that Pilot, as PCC president, and his Young Turk brigade, starting in 2013, played a major role in reviving and bringing back to power the Congress with 99 seats after it had been decimated to a puny 21 seats under Gehlot’s last regime. The victory margin would have been larger had not Gehlot—the master manipu- lator who was a key strate- gist in massively improving the Congress’s performance in the previous Gujarat elec- tions—helped field between 15 and 20 “independent” candidates who cut into the Congress’s winners in Raj- asthan and gave him a bar- gaining chip for the top post. Even as Pilot staked his claim as the most prominent leader of the campaign, Gehlot’s refusal to budge was backed by Congress Old Guard stalwarts like Ahmed Patel and Ghulam Nabi Azad who have Sonia Gandhi’s ear. Even though the compro- mise formula—CM and deputy CM—calls for a “seat sharing” arrangement between die-hard Pilot loyal- ists and Gehlot backers in the yet-to-be formed ministry, Gehlot has acted with light- ning speed to move bureau- crats loyal to him in key posi- tions who are likely to remain there until the general election and do his bidding to strengthen his hold further. Some Cong- ressmen call the CM-deputy CM arrangement as akin to two engines powering the train forward. But what if they pull in opposite directions? GEHLOT’S MACHINATIONS STRAINS IN THE PARIVAR?
  13. 13. Lead/ Issues Before The Supreme Court 16 December 31, 2018 HE Chief Justice of India (CJI), Ranjan Gogoi, was at his best when he delivered the inaugural address at a Constitution Day function held in the Supreme Court on November 26. Recalling the day (November 26, 1949) when our found- ing fathers subscribed to the constitu- tional document and unfolded the social, economic and political philoso- phy for the governance of free India, he emphasised that it brought hope to the hearts of many Indians, heterogeneously living in the nation. He dwelt on the initial criticisms voiced against the Constitution and how time has weakened them in due course, even if they were valid at the time of its inauguration. One such criticism was by Ivor Jennings, who said it was too large and therefore, far too rigid. There can be little disagreement with the CJI when he said that the vigour with which the Constitution has moved on in the last seven decades is testimony to its resilience. Then he addressed another criticism voiced by a founding father of the Cons- titution. A member of the Assembly, this individual was quoted as saying that what was needed was “the music of the Veena or the Sitar”, but they got an “English band” instead. The member, whom the CJI did not identify, was none other than Kengal Hanumanthaiah. He was a member of the Constituent Ass- embly, representing Mysore and the Indian National Congress. Some of his ideas were indeed incorporated in the Constitution: federalism and a parlia- mentary system of government, with the president being indirectly elected. Des- pite the many foreign influences, the Constitution provided the space and opportunity for indigenous forces to internalise it. Hanumanthaiah became the second chief minister of Karnataka in 1952, and later became the Union minister for law and social welfare, and later railways in the early 1970s. His hostility to things foreign mellowed as he gave up his demand to demolish the Karnataka High Court for representing the colonial vestige in India. But he could ensure that the architectural style of the Vidhana Soudha, located opposite the High Court, was Indian. The CJI’s purpose in recalling Hanu- manthaiah’s words was to drive home the point that despite many foreign in- fluences in its making, the Indian Constitution has today become an inte- gral part of the Indian people. To prove his point, he referred to “astounding variety of issues that courts hear daily”. It appeared as though the CJI had left many things unsaid about these two things: while the people consider the Constitution an integral part of their daily lives and seek justice from the courts on various issues affecting them, those who practise the Constitution day in and day out—lawyers and judges— have not been inspiring enough to strengthen the people’s trust in it. Ayear-endanalysisofkeycontroversialissuestheapexcourtwillhavetoconfrontwhenit reconvenesafteritswinterbreak By Venkatasubramanian T Promise and Photos: Anil Shakya
  14. 14. | INDIA LEGAL | December 31, 2018 17 This was alluded to by none other than Attorney General (AG) KK Venu- gopal, when he alleged in the open court that the bench, presided over by CJI Gogoi, was dismissing matters without hearing them and that this was unfair to the litigants who had come to the apex court from far, seeking justice. The CJI took the AG’s comment in the right spirit, and promised to make amends. But the feeling that the Court, in its anxiety to expedite hearing of matters before it, compromises on the quality of hearing and thereby the people’s trust in it, persists. The key element of such trust is the independence of the Judiciary which can protect the Constitution against all odds. On this issue, the signals during the first three months of the current CJI’s tenure have been rather mixed. While there is a case for greater under- standing and cooperation between the Judiciary and the Executive on adminis- trative matters like filling up vacancies of judges, provision of infrastructure for the Judiciary at all levels, etc, there should be little interaction between the two organs on pending matters before the Judiciary as the government is the major litigant. Thus, the CJI could fill vacancies in the Supreme Court and High Courts with considerable ease as compared to his predecessors, who had run-ins with the centre. Four new judges joined the Supreme Court on November 2: Justices Hemant Gupta, R Subhash Reddy, Mukesh Ku- mar Rasikbhai Shah and Ajay Rastogi. Of them, Justice Shah’s elevation caused surprise, if not criticism, as he had pub- licly praised Prime Minister Narendra Modi as his hero. Justice Kurian Joseph, who was part of the Supreme Court’s Collegium which recommended Justice Shah’s elevation from the Patna High Court where he was chief justice said if Justice Shah had said so, it was his view. Meanwhile, Justice Joseph retired on November 29, while Justice Madan B Lokur’s term ends on December 30. The number of vacancies in the Supreme Court, which has a sanctioned strength of 31, will then be five. Two more judges will retire next year during the current CJI’s term: Justice AK Sikri in March and Justice Abhay Manohar Sapre in August. QUIET DIPLOMACY In Justice Joseph’s view, there is nothing wrong in the CJI interacting with the centre to resolve pending administrative issues. His reaction was sought to the Performance SincetakingchargeasCJI,JusticeRanjanGogoi(left)hasauthoredjustoneverdict. Thisisperhapstofocusmoreonadministrativeissues.Hiscolleaguesonthebench, JusticeSKKaul(centre)andJusticeKMJosephtogetherauthoredeightjudgments.
  15. 15. CJI meeting Modi when the latter want- ed to visit Court No. 1 in the Supreme Court on November 25. CJI Gogoi had invited the prime minister to attend a dinner he was hosting for judges from the BIMSTEC countries—Bangladesh, Bhutan, Myanmar, Nepal and Thailand. After all, the CJI met the prime minis- ter, in the presence of other judges, not alone, Justice Joseph underlined. Only a few days earlier, the centre acquiesced to the CJI when the latter insisted that Justice Akil Kureshi of the Gujarat High Court, before his transfer to Bombay High Court, be designated as the Acting Chief Justice (ACJ) of the Gujarat High Court for two weeks. The centre had initially named his junior, Justice AS Dave, as the ACJ of the Guja- rat High Court, but later relented before the CJI. It was still unclear, however, why the Collegium recommended Jus- tice Kureshi’s transfer to Bombay High Court when he could have continued as ACJ in Gujarat High Court. The CJI intervened again when the Gujarat High Court Bar was on the verge of a pro- longed agitation against Justice Kure- shi’s transfer. He defused the crisis by giving an audience to its members and seeking their cooperation in the interest of the institution. CONTROVERSIAL JUDGMENT Since assuming office as CJI, Justice Gogoi has authored just one judgment. This is perhaps to focus more on admin- istrative issues. His colleagues on the bench, Justice Sanjay Kishan Kaul and Justice KM Joseph, together authored eight judgments. But the only judgment CJI Gogoi au- thored—Manohar Lal Sharma v Na- rendra Damodardas Modi—raised seri- ous questions about the procedure adopted by the bench presided over by him, and was subjected to trenchant criticism by civil society. The case— relating to the procurement of 36 Rafale fighter jets for the IAF—was decided in favour of the centre. The concerns expressed by the petitioners over non- compliance with established procedures and allegations of commission of off- ences under the Prevention of Corrup- tion Act were simply brushed aside as devoid of merit. The bench, without any convincing reasons, decided that the deal between India and France for the procurement of the jets required no intervention by it, let alone a roving inquiry by it as it was satisfied that there was no reason to doubt the process. The centre was accused of misrepre- senting to the Court that the Comp- troller and Auditor General of India (CAG) had submitted its report over the pricing of the jets, and that the Public Accounts Committee (PAC) of Parlia- ment had examined it. The misrepre- sentation became the basis of a factual error which crept into the judgment. The centre, in a fresh application before the Court, sought corrections in the jud- gment, saying some words mentioned in its report submitted to it in a sealed cover got twisted to convey a meaning contrary to facts. The centre claimed that it only 18 December 31, 2018 Lead/ Issues Before The Supreme Court CJIGogoiwasabletofillvacanciesintheSCandHighCourtswithconsiderableease ascomparedtohispredecessors.ThenumberofvacanciesintheSCbytheyear-end willbefiveaftertheretirementsofJusticesKurianJoseph(right)andMadanBLokur. Anil Shakya Twitter
  16. 16. | INDIA LEGAL | December 31, 2018 19 sought to convey the normal procedure with regard to consideration of the CAG report by the PAC, and not the facts as such. The words, “the report of the CAG is examined by the PAC”, became “the report of the CAG has been examined by the PAC” in the judgment. “Only a re- dacted portion of the report is placed before the Parliament and is in public domain” became “only a redacted por- tion of the report was placed before the Parliament and is in public domain”. While the Court adjourned for the Christmas and New Year vacation on December 14, the controversy over whether the bench ought to recall its judgment in the wake of the faux pas raged. Critics of the judgment found it odd that the bench, comprising judges known for their judicial acumen, could accept the claims of the centre at face value rather than subject them to seri- ous scrutiny. Others wondered whether the jurisprudence of “sealed covers” adopted by the bench to keep undis- closed the pricing details shared with it by the government was appropriate to deal with such cases. Substantial errors, on which the judgment was based, went unnoticed because the petitioners were unaware of what was mentioned in the sealed cov- ers, it was pointed out. Others were out- raged that the Court frequently resorted to sealed covers to decide issues of gov- ernance and felt it would alienate the public who consider the Constitution an integral part of their lives. Dismissal of petitions raising serious issues of public interest and alleging violation of funda- mental rights on the basis of contents in sealed covers would shake the confi- dence of the people in the courts, be- sides widening the gap between them and the judiciary, it was felt. While the controversy over the Rafale judgment is unlikely to die down when the Court reopens next year, another bench of the Supreme Court quietly turned down the centre’s demand that it should not monitor the CBI’s probe into the extra-judicial killings in Manipur by the armed forces on the ground that the morale of the lat- ter was likely to suffer. The bench of Justices Lokur and UU Lalit dismissed the centre’s plea seeking its recusal from continuous monitoring of the case, say- ing the morale of the armed forces is not likely to suffer erosion by inaccurate reporting of the observations of the judges dealing with the case. Justice Lokur, whose last working day was December 14 (as he retires on December 30, 2018), observed at a farewell function organised by the Supreme Court Bar Association: “It is very important to maintain the inde- pendence and integrity not only of the judiciary, but also of the Bar; Bar has to remain independent and cannot be sub- ordinate to the Bench or to any other authority or institution.” When the Supreme Court reopens after the holidays, the independence of the Bar as well as the bench will be on trial in the wake of its Rafale judgment and the likely outcomes of cases relating to the CBI’s internal crisis, right to wor- ship for women of menstruating age at Sabarimala (review) and the Babri Masjid title dispute. The outcomes in these cases will show whether the judiciary has been able to uphold the people’s confidence in it by fulfilling its role as a neutral and unbiased arbiter, while narrowing the gap between the Constitution’s promise and performance. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com WhentheSupremeCourtreopensaftertheholidaysin2019,theindependenceof theBarandthebenchwillbeontrialinthewakeofitsRafalejudgmentandcasessuch astheBabriMasjidtitledispute,entryofwomenofallagesintotheSabarimala TempleandtheCBI’sinternalcrisis. UNI
  17. 17. Supreme Court/ Potholes 20 December 31, 2018 N December 6, a Supreme Court bench of Justices Madan B Lokur, Deepak Gupta and Hemant Gupta took notice of the shock- ing number of deaths caused by potholes. During the period 2013-17, a total of 14,926 people lost their lives in various parts of the country due to the menace of potholes. Earlier in the year, the same bench rapped the central and state governments for the rise in pothole deaths. In fact, the num- ber of people killed in 2017 due to pot- holes was 3,597 compared to 2,324 in 2016. Saying that the number of deaths due to potholes far exceeded those caused by terrorist attacks, the bench asked the Supreme Court-appointed road safety committee headed by Justice KS Radhakrishnan to look into the matter in July. In the December 6 hearing, the bench asked for a response from the centre. The case in question was a writ petition filed by S Rajaseekaran, an orthopaedic surgeon and chairman and head of Department of Orthopaedic Surgery in Ganga Hospital at Coimba- tore in 2014. He had sought the Court’s intervention for strict enforcement of the prevailing laws under Article 32 of the Constitution. His petition also sought directions from the Court for Split Wide Open TheCourthasheldauthoritiesresponsiblefordeathsdueto thismenace.ButuntiltheMotorVehiclesAmendmentBillgets passed,therewillbenocompensationforsuchdeaths By Papia Samajdar O SILENT KILLER A road filled with potholes in Mumbai, a common sight during the monsoon newsmobile.in
  18. 18. | INDIA LEGAL | December 31, 2018 21 infrastructure upliftment, post-accident care facilities and minimisation of fatali- ties in road accidents. Potholes are a common sight on Indian roads. They increase in number and size every monsoon. But why is this so? In order to be durable, a road req- uires proper design, quality material used in construction, labourers’ skills and drainage systems. One of the biggest reasons behind potholes after the rains is a combination of thin or incorrectly compacted road bed and inadequate drainage. During rain, water collects in the soil under the road bed, and if this is not thick enough, it becomes unstable. This reduces its load- bearing capacity and weak spots are formed, leading it to collapse. Prithvi Singh Kandhal, associate director (emeritus) at the National Centre for Asphalt Technology, US, told India Legal: “There is a fundamental engineering problem in roads which is not common public knowledge. Of the 10 types of bituminous paving mixtures specified and used in India, seven are water trapping and only three are dense-graded and of desirable mixture.” In 2015, India committed to improv- ing road safety under the Brasilia Decla- ration on Road Safety which called for stringent laws to prevent road accidents. Tied to the 2030 UN Sustainable Dev- elopment Goals, India along with other participants committed to reducing by 2020 the number of deaths caused due to road accidents by half. The Motor Vehicles (Amendment) Bill, currently in the Rajya Sabha, seeks to make existing laws stringent both for road users and for those responsible for their construction and maintenance. The government is following a four- pronged strategy to address road safety based on the four Es—education, en- forcement, engineering and emergency care. From including chapters on road safety in school textbooks to conducting road safety audits, increasing penalties for traffic defaulters and hiking compen- sation for accident victims, the Motor Vehicles (Amendment) Bill is a positive act. The Bill has been passed in the Lok Sabha. In 2015, Nitin Gadkari, the Union transport minister, stated that all new central road projects would be made of concrete. Concrete pavements are superior to bitumen or flexible pave- ments. “It requires less maintenance, sustains climatic extremes better, and is eco-friendly. Well-made rigid pavements are long-lasting and suffer no damage,” said Sanjay Londhe, director, Ashoka Buildcon, a construction engineering company. O n March 9, 2017, the govern- ment approved a National Road Safety Policy. According to this policy, road safety was made a part of road design. Identification and rectifica- tion of accident-prone spots or black spots have been accorded the highest priority. Apart from that, ambulances are to be provided at gaps of 50 km across highways and road safety audits have to be taken up. On November 30, 2017, the Supreme Court had issued additional guidelines to governments to come up with a road safety action plan by March 31, 2018. The guidelines included setting up of State Road Safety Councils, District Road Safety Committees, Lead Agency, creation of a Road Safety Fund and a permanent road safety cell. In October 2017, the Lokayukta had initiated suo moto proceedings against civic authorities in Bengaluru for deaths caused due to potholes. The Lokayukta held them accountable for the sub- standard work done by the contractors and the supervision thereof by the authorities. In Maharashtra, the government recently tweaked the tender norms of road contractors in order to break their monopoly and bring in transparency. The previous norms allowed the partici- pation of only those firms which were licensed with the Department of Public TheSupremeCourtbenchofJusticesMadanBLokur(left),DeepakGupta(centre) andHemantGuptasaidthenumberofdeathsduetopotholesfarexceededthose causedbyterroristattacksandaskedthecentretorespondontheissue. “There’safundamentalengineering probleminroads.Ofthe10typesof bituminouspavingmixturesusedinIndia, onlythreeareofdesirablemixture.” —PrithviSinghKandhal,associatedirector (emeritus)attheNationalCentrefor AsphaltTechnology,US
  19. 19. Supreme Court/ Potholes 22 December 31, 2018 Works. This has been discontinued and now all contractors can participate. These norms have been made applicable to roads, bridges, building construction and maintenance contracts. The performance of roads is depend- ent on the quality of construction more than the design recommendations. According to the Supreme Court guide- lines, there is a need for regular road safety audits. The same is also mention- ed in the National Road Safety policy. However, there is a dearth of qualified auditors in road safety engineering. Availability of good quality material for road construction is another challe- nge faced by the industry. India lags in exploring new materials, technologies and equipment which can improve the structural strength of roads, impacting their durability considerably. Eighty per- cent of India’s road network is for rural roads. Construction of a sustainable road surface for low-volume roads is a challenge, according to A Veeraragavan, professor in the Department of Civil Engineering, IIT Madras. As for deaths caused by potholes, the Supreme Court on December 7 held the authorities responsible for road mainte- nance accountable. However, there is no law to hold them legally accountable. Until the Motor Vehicles (Amend- ment) Bill gets passed, there is no way to ensure compensation for deaths caused due to potholes. The Court asked the states and UTs to come up with a remedy for monetary compensation. According to the data shared by the states with the Supreme Court comm- ittee, Tamil Nadu reported 877 fewer deaths due to road safety measures, followed by Andhra Pradesh and West Bengal. The overall reduction of deaths nationwide in all kinds of road accidents was three percent in 2017. The Motor Vehicles (Amendment) Bill, if passed, will help in plugging the gaps in existing laws. It will hold buil- ders accountable for poor quality of infrastructure. Contractors, consultants and civic agencies will be held accounta- ble for faulty design, poor construction and lack of road maintenance—leading to accidents. That will be a good move, indeed. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com In August 2018, a toddler fell out of an auto-rickshaw in Kolkata when the driver tried to swerve past a pothole at top speed. In July 2018, a 40-year-old woman was crushed to death in Mumbai after the scooter she was riding pillion on hit a pothole (see picture above). The incident was caught on CCTV camera and showed the driver losing control after hitting the pothole. As both the riders slipped, a bus ran over the woman. On October 28, 2017, a 61-year-old businessman in north Delhi fell off his scoot- er after hitting a pothole. In spite of wearing a helmet, he bled to death and was declared brought dead by doctors. While passers-by told his family that the acci- dent was caused by a pothole, the PWD denied it. In July 2017, an 18-year-old boy died while trying to dodge a pothole filled with water during rain in Mumbai. He was riding a scooter and not wearing a helmet. He hit his head on the ground after losing control of the scooter. His elder brother, who was riding pillion, also got hurt. Passers-by did not stop to help the brothers and medical help was delayed. Tragicdeaths In2015,NitinGadkari,theUniontrans- portminister,statedthatallnewcentral roadprojectswouldbemadeofconcrete. Concretepavementsaresuperiorto bitumenorflexiblepavements.CRUEL FATE A woman in Mumbai fell off a scooter after hitting a pothole and was run over by a bus
  20. 20. in the case. All were local leaders of the Congress. Three other accused were in custody from 2013. The aggrieved fami- lies, along with the CBI, filed a petition in the High Court against that decision. The High Court concluded that “whe- re there has been a manifest irregularity in the appreciation of evidence by the trial Court, the appellate Court might interfere with the judgment of acquittal by the trial Court and instead convict the accused if it is satisfied of their guilt”. The Court mentioned that while Kumar had organised peace rallies, blood dona- tion camps and helped in the rehabilita- tion of victims of the 1984 violence, it cannot take away his guilt. It said that “this cannot take away from his involve- ment in the riots in the first place which Courts/ Sajjan Kumar Conviction 24 December 31, 2018 USTICE delayed can often seem like justice denied. In the case of some victims of the anti-Sikh riots of 1984, it arrived 34 years later. Recently, the Delhi High Court reversed a trial court’s verdict and convicted Sajjan Kumar, a former Congress MP, to spend the rest of his life in jail for his involvement in the riots. The Court asked him to surrender by December 31. He filed an appeal seeking 30 days to surrender but the Court dis- missed it. In 2013, a trail court had acquitted Kumar of all charges. It was alleged that he orchestrated the killings of five Sikhs and helped in burning down a gurud- wara in Delhi’s Raj Nagar. The case was brought forward by the CBI, and the Delhi High Court proceeded to convict him for the “offences of criminal conspir- acy and abetment in the commission of the crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony, defiling and destruction of the Gurudwara by burning”. The High Court termed the mass killings as “crimes against humanity” and said that it would continue to shock the “collective con- science of the society”. Kumar is the first senior leader of the Congress to be convicted. Following the conviction, the 73-year-old leader resi- gned from the Congress. The riots shook Delhi in the aftermath of the assassina- tion of Indira Gandhi, the then prime minister, by her Sikh bodyguards. Over 2,700 people were killed in Delhi alone. The 200-page judgment talked at length about the circumstances sur- rounding the events of 1984. The bench, comprising Justices S Muralidhar and Vinod Goel, condemned the apathy of the Delhi Police in taking proper action in the matter. It stated that the “abject failure by the police to investigate the violence which broke out in the aftermath of the assassi- nation of Smt Indira Gandhi is apparent by several circumstances”. The bench said that it was peculiar that despite there being as many as 341 deaths, only 21 FIRs were registered over four days. And of these, only 15 were related to murders/deaths. The Court mentioned that for each murder, there needed to be a separate FIR. The High Court upheld the trial court judgment which had con- victed five other accused—former coun- cillor Balwan Khokhar, former legislator Mahender Yadav, Krishan Khokar, Girdhari Lal and retired naval officer Captain Bhagmal—for their involvement Justice after 34 Years Inapainfulclosureforthefamiliesofsomevictimsofthe1984riots,theDelhiHighCourt sentencedformerCongressMPSajjanKumartospendtheremainderofhislifeinjail By Naved Ahmed J PAST CATCHES UP The HC has quashed Sajjan Kumar’s (centre) request for more time to surrender uni
  21. 21. all around them.” It said that the “criminals have enj- oyed political patronage” but “it is imp- ortant to assure the victims that despite the challenges truth will prevail”. The CBI had filed an appeal against Kumar after the 2013 verdict of the trial court, alleging that the mobs were engaged in a “planned communal riot” and “religious cleansing”. The High Court refused to deal with the matter in a lenient way. It realised the extraordinary nature of the case where there were efforts to intimidate the victims’ families and where cases against Kumar were suppressed by not even recording or registering them. “Even if they were registered they were not investigated properly and even the investigations which saw any progress were not carried to the logical end,” the order said. The judgment clearly stated the cunning and mala fide intentions of the perpetrator. There was a two-pronged strategy adopted by the attackers, it said. “First was to liquidate all Sikh males and the other was to destroy their resi- dential houses leaving the women and children utterly destitute. The attack on the Raj Nagar Gurudwara was clea- rly a part of the communal agenda of the perpetrators.” The bench stated that it was common for crimes against humanity to target minorities and they were “spearheaded” by dominant political parties. And due to their political background, these politicians keep evading prosecution and punishment. Besides this case, there are other cases against Kumar (see box). This judgment shows that no one is above the rule of law, no matter how big. There is now hope among families of other victims that the perpetrators of crime will be eventually brought to book. India has seen numerous riots since Independence which have targeted minorities and disadvantaged groups and this judgment proffers hope that justice will finally be done. One Anwar Kaur alleged that Sajjan Kumar had instigated a mob that lynched her husband Navin Singh in Sultanpuri. This case was initiated by the CBI, but on Dec- ember 23, 2002, the district court acquitted Kumar and the other accu- sed, stating that “evidence fails mis- erably to prove the case against Sajjan Kumar”. The case is pending on appeal. Another Sultanpuri case has been pending in the Patiala House Courts since 2005. It took five years for the trial court to frame charges in this case as Sajjan Kumar had appealed in the High Court. It was only in 2013 that the trial began. A Special Investigation Team was set up in February 2015 on the direc- tion of the home ministry to re-inves- tigate closed cases and it registered two FIRs against Sajjan Kumar. The trials in those cases are yet to com- mence. The two FIRs are based on complaints about killings in Janak- puri and Vikaspuri. In the first case, one person was killed and in the second, a person was set on fire and suffered severe burns. He remained bedridden for decades and died a few years ago. | INDIA LEGAL | December 31, 2018 25 resulted in the murders of the five deceased in the present case”. T he Court did not sympathise with Kumar’s claim that the political support of Sikhs rests with him. It said: “The Court also cannot agree with his description of the violence as being the result of a ‘self-evoked provocation which resulted in an outburst of crime in Delhi and other parts of the country’ when thousands of Sikh men, women, and children have been butchered while the law and order situation deteriorated Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com TheDelhiHighCourtbench,comprising JusticesSMuralidhar(left)and VinodGoel,condemnedtheapathyof theDelhiPoliceintakingproperaction inthe1984riotscases. Awaiting justicetoo There are other cases involving Sajjan Kumar: VIOLENT ACTS Angry mobs pelting stones at Sikhs’ houses in Delhi in 1984 sikh24.com
  22. 22. yer HS Phoolka, who represented the 1984 victims, had said it showed the cr- eeping criminalisation of Indian politics. “Before the 1984 riots, there were no criminals in politics. Criminals followed politicians. But 1984 made them realise people leading mobs and killing others could get elected and become leaders. So a way was opened for criminals to make politics a profession,” he said. This probably sums up the problem in handling mass killings—political actors and subservient law enforcement agencies conniving to protect criminal elements. Politics rides on the back of governance like King Vikram’s Vetala, a spirit that would not get off, until the King solved the riddle. Unfortunately, governance is not the king in our case, so it is the politician, the Vetala, who solves the riddle to suit his end. The judges also called for changes in criminal law to include specific offences for “crimes against humanity” and “geno- cide”. Such a loophole allowed the accused responsible for mass crimes to evade prosecution and punishment. The bottomline is that India has not defined Column/ Mass Killings Colonel R Hariharan 26 December 31, 2018 HE sentencing of Congress leader Sajjan Kumar to life imprisonment for his role in the 1984 anti-Sikh riots, where more than 2,700 were killed in the capital, is not the first case of mass killing. Nor is it the first time when the long arm of the law was not strong enough to deliver justice as the accused had the right polit- ical connections. This is an apt case study for a host of things that are wrong with our law en- forcement, judicial system, criminal prosecution, et al. When it comes to han- dling real life cases, particularly mass killings like the 1984 anti-Sikh massacre, politics seems to take precedence over all other considerations. In this context, the observations of the Delhi High Court bench of Justices S Muralidhar and Vinod Goel while con- victing Sajjan Kumar are relevant. They said “cases like these are to be viewed in the larger context of mass crimes that require a different approach”. Noting that in Delhi alone, 2,733 Sikhs were killed and nearly 3,350 Sikhs done to death all over the country, the judges said this was “neither the first instance of mass crime, nor tragically, the last”. They indicated a familiar pattern of killings in Mumbai in 1993, Gujarat in 2002, Kandhamal, Odisha, in 2008 and Muzaffarnagar in UP in 2003. The com- mon link in such crimes was targeting of minorities and “attacks spearheaded by dominant political actors being facilitat- ed by law enforcement agencies”. While they were stating the obvious, this is not the first time judges have made such a statement. On August 21, 2009, additional sessions judge Surinder S Rathi in Delhi had found three persons guilty of rioting, attempt to murder and arson. He had observed: “Though we boast being the world’s largest democra- cy and Delhi the national capital, the sheer mention of the incidents of 1984 anti-Sikh riots in general and the role played by Delhi Police and state machin- ery in particular makes our heads hang in shame in the eyes of the world polity.” In a way, the 1984 riots were a water- shed in Indian politics. Delhi-based law- How About a Law for Genocide? SajjanKumar’sconvictionshows theneedforthislawinIndiawhich hasoftenbeenrockedbypogroms. Butistherepoliticalwilltodoso whenitcouldleadtoprosecution ofpublicservants? T CRIME AND COMPLICITY Vehicles burnt during the Gujarat riots Pramod Pushkarna ThoughtheModigovernmentshowed alacrityinreopeningtheriotscaseof SajjanKumar,itseemstobeinnohurry torecognisetheneedforenactinglaws aspertheUNConventionongenocide.
  23. 23. | INDIA LEGAL | December 31, 2018 27 genocide by law, though the UN conven- tion on genocide ratified it in 1959. “Ge- nocide” does not find a place in the In- dian Penal Code. The UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948, as Resolution 260. It came into force on January 12, 1951. And on December 2017, 149 states ratified or acceded to the treaty. India had partici- pated in the 1948 genocide convention and contributed to its drafting. India rat- ified it on August 27, 1959. A ctually, by ratifying the conv- ention, India has recognised genocide as an international crime, which it has undertaken to pre- vent and punish as per Article I of the Convention. It has also undertaken to enact the necessary legislation “to give effect to the provisions” of the Conven- tion, to provide effective penalties for persons guilty of genocide or any other acts related to genocide through a com- petent tribunal. The Convention in Article II defines genocide as “any of the following acts with intent to destroy, in whole or in part, a national, ethnic, racial or reli- gious group, as such: (a) Killing mem- bers of the group; (b) Causing serious bodily or mental harm to members of the group: (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or part; (d) Imposing measures intended to prevent births within the group; (and) (e) Forcibly transferring children of the group”. Article III renders punishable not only acts of genocide but other acts related to it like conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide. Though the Narendra Modi govern- ment showed alacrity in reopening the 1984 anti-Sikh riots case of Sajjan Kumar, it still does not seem to be in a hurry to recognise the need for enacting laws in conformity with the UN con- vention on genocide. In fact, in the Raj- ya Sabha on March 2, 2016, a question was raised about the government’s plans in enacting laws in conformity with the UN convention on genocide and racial discrimination and, if not, reasons for not enacting them. Answering the ques- tions, Kiren Rijiju, minister of state for home, said: “By acceding to the Convention on the Prevention and Punishment of the Crime of Genocide in 1959, India has recognised genocide as an international crime. The principles embodied in the Co-Convention are part of general international law and therefore already part of common law of India. The provisions of the Indian Penal Code including the procedural law (Criminal Procedure Code) provide effective penal- ties for persons guilty of the crime of genocide and take cognisance of the acts which may be otherwise taken to be in the nature of genocide.” The catch in the minister’s contention that the provisions of the IPC, including the procedural criminal law, “provide effective penalties for persons guilty of crime of genocide” is flawed because genocide is not defined in the IPC. This probably shows the government’s reluc- tance to enact separate laws to handle genocide and crimes related to it because Article IV of the UN Convention says “persons committing genocide or any other acts enumerated in Article III shall be punished, whether they are constitu- tionally responsible rulers, public offi- cials or private individuals”. In other words, a separate law for genocide would mean sacrificing the protection given to public servants from prosecution under Section 197 of the Code of Criminal Procedure, 1973, which had been used to prevent and delay prosecution of guilty public servants. But Article 51(c) of the Constitution enjoins the State to “foster respect for international law and treaty obligations”. Article 253 mandates the Parliament “to make any law for implementing any treaty, agreement or convention”. So both the government and Parliament have an obligation to enact separate laws for genocide and related acts as required by the UN Convention. HL Mencken, editor of The Baltimore Sun, described democracy as the art and science of running a circus from the monkey cage. As the world’s largest democracy, we seem to be a living exam- ple of it. Bangladesh was able to overcome both domestic and international road- blocks to prosecute those involved in the mother of all genocides in the run-up to its independence? Why can’t we? —The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Analysis Institute Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “Beforethe1984riots,therewereno criminalsinpolitics...But1984 madethemrealisepeopleleading mobsandkillingotherscouldget electedandbecomeleaders.” —HSPhoolka,Delhi-basedlawyer Aseparatelawforgenocidewould meansacrificingtheprotectiongiven topublicservantsfromprosecution underSection197oftheCode ofCriminalProcedure,1973.
  24. 24. Courts/ Abetment 28 December 31, 2018 N what has come as relief for a woman convicted under Section 306 of the Indian Penal Code (IPC) for abetment of her husband’s sui- cide in a case of phone sex, a single bench of Justice Mridula Bhatkar of the Bombay High Court set aside the order of a sessions judge. A Thane-based banker had set him- self on fire in his house in July 2015. His father alleged that he was subjected to harassment and ill-treatment by his wife, and when he came across objec- tionable communication between a friend of his and his wife on the phone, he was disturbed and informed his father that he may commit suicide. However, according to the wife, there was no trust in their relationship and neither of them was happy with the other. But she had no intention of dis- closing the communication she had with the friend to her husband, and hence there was no intention on her part to make him commit suicide. Justice Bhatkar, after hearing both parties, was of the view that though there was evidence to show that there was harassment and nagging, it cannot be said that there was abetment of suicide. The phone communication was done secretly so that it would not come to the knowledge of the deceased. The Court also observed that phone sex does not fall within the definition of adultery, as defined under Section 13(1) of the Hindu Marriage Act. The Act states that adultery means having voluntary sexual intercourse with a person other than the spouse. At the time when the Act was made, lawmak- ers had no idea about the existence of phone sex. Hence, phone sex cannot be termed adultery but is an act of unfaithfulness and infidelity. Such acts do not consti- tute mens rea which is an essential element for abetment of suicide under Section 107 of the IPC. Moreover, the Court was of the view that if the accused had deliberately dis- closed the phone sex to the deceased and repeated it despite a warning given by him that it would drive him to sui- cide, then she would have been guilty of abetment. But in this case, the judge said no such intention could be made out. The Court further said that though the act of committing suicide by the husband, who was deeply hurt by his wife’s behaviour, was very unfortunate, the latter had not abetted the suicide. Further explaining the word “abetment” in Section 306 by linking it with Section 107 of the IPC, the Court observed that “life is never throughout a bed of roses but there are difficulties, fights, failures what is called wear and tear of life. Every individual reacts dif- ferently to the situation depending on his or her mindset. Some persons are strong and some are weak. “Thus, the impact of reaction to a particular incident is always different from person to person and therefore, the lawmakers of Indian Penal Code who drafted Section 306 have linked it with Section 107 by using the word abetment”. Not a Case of Adultery TheBombayHChasruledthatphone sexisanactofunfaithfulnessbutcan’t beheldasabetmentofsuicide By Shaheen Parween I Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A DIFFERENT VIEW The Bombay High Court set aside the order of a sessions judge in the case TheHighCourtwasoftheviewthat iftheaccused(wife)haddeliberately disclosedthephonesextoher husband,thenshewouldhavebeen guiltyofabetment. wikipedia Anthony Lawrence
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  26. 26. and remained inactive. As a result, issues of centre-state relations have had to be agitated in the Supreme Court. It is unbelievable but matters such as in-fighting in the CBI had to be taken to the Supreme Court, instead of being dealt with by the government adminis- tratively. Normally, a controversy such as the Rafael contract should have been debated in Parliament. If necessary, a parliamentary committee could have been appointed to look into allegations T has been a decade since I wrote the above introduction. This has been a significant decade which, for the first time, has given rise to seri- ous forebodings about the role of the judiciary. This is particularly worri- some considering the unique position which the judiciary occupies in India’s national life. Of the three organs of the state, the judiciary continues to be the most trust- ed, enjoying the highest public credibili- ty. The Supreme Court has been the court of first, rather than the last, resort. Since Parliament has become irrelevant for resolving any major issues, the Sup- reme Court had to step in even in mat- ters such as electoral reforms. In a politically fragmented polity, Constitutional bodies like the National Development Council and the Inter- State Council have become irrelevant of irregularities and corruption. But since these instruments of democratic governance and accountability have become non-functional and have lost all credibility, the issue had to be raised in the Supreme Court. In no other country, the judiciary has been asked to take a hand in the governance of the country to this extent. It is for this reason that some recent developments, stance and decisions of the Supreme Court raise serious con- cerns and forebodings. The press conference held by the four senior-most judges of the Supreme Court on January 12, 2018 was most dis- concerting and unsettling for common stake-holders. It was more shocking to see that the concerned judges did not see anything wrong in having taken the step. No one was surprised at the inter- nal dissensions among the judges of the Supreme Court. This is not uncommon in any institution, particularly one in which there is so much talent and schol- arship under one roof. In his press conference after his retirement, Justice Kurian Joseph has dilated on a number of issues which led to the holding of the press conference. These included roster and the manner In a post-script to the Introduction of the reprint of the book, “The Judiciary and Governance in India”, which is being brought out by Rupa Co, former home secretary MADHAV GODBOLE talks about recent developments and decisions of the Supreme Court which raise serious forebodings AcontroversysuchastheRafael contractshouldhavebeen debatedinParliament.... But...theissuehadtoberaised intheSupremeCourt. I 30 December 31, 2018 “Judiciary Cannot be a Law unto Itself” Books/ The Judiciary and Governance in India
  27. 27. for Muslims and the Dhangar commu- nity soon. Another important case per- tains to review of the Supreme Court decision in the Hindutva case. The importance of this case needs no special emphasis in the current context of clam- our for declaring India a Hindu Rashtra. The same thing is true of the case pertaining to constitutional validity of Article 35A of the JK Constitution in which the hearing was postponed by the Supreme Court recently. The case of constitutional validity of the resettle- ment law of JK has reportedly been pending for over three decades. Some time ago, the then chief justice of India had talked about how difficult it was to spare judges for deciding consti- tutional issues. If this is so, should the Supreme Court not be split up and a separate apex court established only for deciding constitutional matters? After all, the issues involved therein are of national importance and keeping them pending for years together is not in the public interest. The Law Commission of India may be asked to examine the sub- ject in depth and prepare a paper for national debate and discussion. Judicial reforms have been talked about by every in-coming and out-going CJI in recent years. The number of pending cases at all levels continues to be as staggering as ever. Some judges in which it was decided upon, even granting that the chief justice is the master of the roster; systems and prac- tices which were considered necessary but were not being introduced; and the need to set up an administrative committee in the Supreme Court as in the High Courts. (IE, 1 December 2018, p. 10) Though systemic issues and trou- bling practices have been there all along, it is for the first time that they were aired publicly in such a shocking man- ner. Why had the demand for a collec- tive leadership become so important only now? By contrast, there were times when the Supreme Court exhibited exemplary unity and all judges offered to resign when the senior-most judge was proposed to be superseded in the appointment of the chief justice. The esprit de corps has been lost since a long time, with each judge acting for himself. This has permanently damaged the image and public esteem of the highest court of the country and it will take a long time before this unsavoury memory is erased from public mind. A dministrative decision-making in the Supreme Court has always been considered to be opaque by the stake-holders. For example, there are no “speaking orders” on why and for how long hearing in important cases is put off. The Ramjanmabhoomi-Babri Masjid matter is a case in point. There is reason to believe that if the decision in this long pending case had not been put off, the Babri Masjid could have been saved from demolition by mob violence in 1992. The sudden postponement of the hearing in this case from November 2018 to January 2019, and that too not for a substantive hearing but only for deciding procedural and other issues, has led to a dangerous and virulent poli- ticisation of the issue. It will be counter- productive to trivialise the importance of this case by treating it as just a land dispute. It is of utmost satisfaction that even on such an emotive and politically explosive issue, both sides, Hindus and | INDIA LEGAL | December 31, 2018 31 Muslims, have been patiently waiting for the decision of the apex court. It is in national interest that this respect for the judiciary is not permitted to be under- mined, consciously or unconsciously. The same thing can be said about several other important matters which have been pending for decades together. One such case pertains to reservation of 69 per cent granted in Tamil Nadu, which is way beyond the limit of 50 per cent laid down by the Supreme Court. This issue is of utmost national impor- tance considering the agitation for reservations by dominant communities such as Jats and Patels in some states. The government of Maharashtra has recently given 16 per cent reservations to Marathas taking the total reserva- tions in the state to 68 per cent, even without placing the report of the Back- ward Classes Commission before the state legislature. The state government is also likely to announce reservations Inhispressconferenceafter retirement,JusticeKurian Josephhasdilatedonissues whichledtotheholdingofthe SCjudges’pressconference. Anil Shakya
  28. 28. ing and complex issues pertaining to judicial reforms will be addressed in the dialogue. Speaking at the second J. Dadachanji memorial debate in December 2018, K.K. Venugopal, attorney general of India, has invited attention to two im- portant aspects of the working of the judiciary. He has rightly asserted that of the Supreme Court and chief justices of high courts, on retirement, have talked eloquently on the subject. One of them is Justice Kurian Joseph (IE, December 9, 2018, p. 7). One of the past CJIs had even shed tears on the plight of court litigants. In spite of this acute awareness of the seriousness of the problem, there has been no perceptible change in the situation. I have discussed this matter at length in the book. On taking over charge, present CJI Ranjan Gogoi has assured that this subject will receive his close attention. Justice Kurian has stated in the “Idea Exchange” referred to above that “the present CJI is going to have regular dia- logue with the head of nation”. This is reassuring. Let us hope the long-pend- the Supreme Court has taken over more powers than any other apex court in any other country. Venugopal has also hoped that the concept of Constitutional mora- lity newly invented by the Supreme Court dies soon. Both these concerns are valid and need to be debated nationally. I am particularly worried about the first concern. Such fears were also expressed by Jawaharlal Nehru who had asserted that the apex court should not be per- mitted to be the third chamber of Par- liament. As I have brought out in the book, we have come a long way since then. And I have no quarrel with it as the judiciary has come to occupy the legislative space which had remained vacant for too long a period. Thus, for example, the subject of electoral reforms was being deliberately soft-pedalled by political parties and by whichever gov- ernment came to power. Even after the Supreme Court decision directing intro- duction of some reforms, all political parties ganged up to oppose them. A nother case was of resistance to legislate a law for the Lokpal. Finally, it was because of Anna Hazare’s agitation and the mass upsurge that the UPA government relented, but the BJP government which came to power in 2014 has been reluctant to give effect to it. The people were left with no alternative but to request for the inter- vention of the Supreme Court. Enacting a separate law for the Central Bureau of Investigation (CBI) is another case where even the Supreme Court has been helpless. The question has been under discussion for over 50 years but has not impelled the government to enact a law. Dozens of such instances can be given to bring out why the activist role of the Supreme Court is inevitable in India. There is no alternative to the Supreme Court taking a hand in the governance of the country. India is destined to have a guided democracy, democracy guided by the Supreme Court. But for the same reason, the judici- ary has to be accountable and transpar- ent. It cannot be a law unto itself. The COST OF PENDENCY (Right) The postponement of the hearing in the Babri Masjid case by the Supreme Court has led to a dangerous and virulent politicisation of the issue; The constitutional validity of Article 35A (JK) is still awaiting a verdict from the top court Books/ The Judiciary and Governance in India 32 December 31, 2018 Thetimehascomeforeventhe SupremeCourttorealisethat inademocracy,therearelimits toeachinstitution’spowers andauthority. UNI
  29. 29. and refuses to accept any open, trans- parent system, there will be no other alternative than to convene a new Constituent Assembly to deliberate on the issues. To me, this will be opening a Pandora’s Box. The whole Constitution will then come up for review and with the fractious polity that we have now, one does not know what all compromis- es may have to be made to arrive at an acceptable new Constitution. Even the basic structure doctrine will come for reconsideration. A far as I can see, even the precept of secularism will be exam- ined anew. The consequences may be horrendous and even unthinkable. The time has come for even the Supreme Court, which is the world’s most powerful judicial institution, to realise that in a democracy, there are limits to each institution’s powers and authority. There is no getting away from checks and balances. Let us hope the Supreme Court will see the reason and step back from the precipice. —The writer is former Home Secretary and Secretary, Justice, Government of India selection of judges has to be above board. The process must be transparent and such that it evokes confidence about the fairness, integrity and judiciousness of the system. L ooked at from this point of view, the resistance of the Supreme Court to the setting up of a Na- tional Judicial Appointments Commi- ssion is totally unjustified. This law was passed unanimously by Parliament and still was declared unconstitutional by the Court. It is difficult to countenance the situation in which the selection of judges will not be open and transparent or that the collegium of judges will not be answerable to anyone. Justice V.R. Krishna Iyer, former judge of the Sup- reme Court, had minced no words when he called this an incestuous relationship. As for the Memorandum of Procedure concerning matters pertaining to the appointments, transfers, etc. of the judges of the higher judiciary too, there has not been agreement yet between the government of India and the Supreme Court. Here also, the Supreme Court is stone-walling the issue and is not pre- pared for any give and take with the government. Justice Kurian Joseph, who was a member of the collegium till his retirement, has in his interview to The Indian Express, said, “As far as the Memorandum of Procedure is con- cerned, the Supreme Court is of the view that it is final because it has approved it.” (IE, 1 December 2018, p. 10). This stance of the Supreme Court would have been understandable if India did not have a written Consti- tution. But the Indian Constitution is an elaborate, bulky, well conceived and well drafted document. The Supreme Court has the authority to interpret it but it is questionable whether it has the powers to rewrite the Constitution as it has done by its decisions on the basic struc- ture, appointments of judges and so on. As for the basic structure doctrine, I have argued in this book that it was invoked by the Supreme Court only due to the Constitution demolition brigade which was active under the then prime minister Indira Gandhi and its origin was in the “argument of fear”. However, due to the political situation in the country, over a period of time, the logic of basic structure has been accepted by all political parties. But matters pertain- ing to appointments of judges are not in the same category. If the Supreme Court continues to take a unilateral position on the subject The Judiciary and Governance in India Author: Madhav Godbole Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | December 31, 2018 33 Enactingaseparatelawfor theCentralBureauof Investigationisanothercase whereeventheSupremeCourt hasbeenhelpless. Anil Shakya
  30. 30. Special/ Former CJI Dipak Misra’s Judgments/ Arbitration 34 December 31, 2018 HOUGH the “lis” (present suit) in this case is limited, the significance it carries is global. At times, in arbitra- tion cases, the issue of jurisdiction of the court is disputed by the parties—sometimes to delay the final decision during the pendency of the case or where the award of the arbitrator is questioned on differ- ent grounds. Section 34 of the Arbitra- tion and Conciliation Act, 1996, deals with the seat of arbitration and venue thereof—of course, subject to the materi- al terms and conditions of the arbitration agreement. While interpreting the agreement and the relevant laws, conciliation between the two plays an important role. The same agreement and the same laws can be interpreted by two different courts in two different ways. Here is an example of one such conflict which arose in a case decided by former CJI Dipak Misra. In the case, the shareholders had ent- ered into an agreement which provided that any dispute arising between the par- ties would be decided by arbitration. The agreement further stated: “For the said purpose, each party shall nominate one FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa chiefjusticemusttackle.IndiaLegalrunsaseriesonthesejudgments T CASEDETAILS Title: Roger Shashoua Ors vs Mukesh Sharma Ors Bench: Justices Dipak Misra and R Banumathi Case No: SLP (Civil) no. 22616-22618 of 2016 Date of judgment: July 4, 2017 The Seat of Arbitration By Justice Bhanwar Singh Anthony Lawrence

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