India Legal 01June 2016

NDIA EGALL
June 15, 2016 `100
www.indialegalonline.com
I STORIES THAT COUNT
4004 26
Wherearethelawsagainst
domesticslavery?
Choosetheethicalpath
—JusticeLNageswaraRao
ofSupremeCourt
Practisingin
uncle’scourt
InderjitBadhwar NavankShekharMishra
Lawgradsdon’thavetofollowthebeatentrackasa
newworldofalternateopportunitiesawaitsthem
BySuchetaDasgupta10
CareersGalore
Shobha
John
Fly by
error 56
Neeta
Kolhatkar
Jiah Khan:
interest
18
Ramesh
Menon
UK’s Supreme
Court restrains
press
66
LEGAL STUDENTS
imbroglio
that wasn’t
By Meha Mathur
62

private households as 4.75 million. Why? Because
they are named differently by entities employing
them, the categorization is as diverse as one can
imagine and the definition ambiguous.
This is despite the fact that India had arrived at
a definition of a “wage worker” in 2008, says the
Law and Policy Brief Report. The Unorganized
Workers Social Security Act passed in that year
offered a semblance of legal recognition to domestic
workers. The “wage worker” was defined as “a per-
son employed for remuneration in the unorganized
sector, directly by an employer or through any con-
tractor, irrespective of place of work, whether exclu-
sively for one employer or for one or more employ-
ers, whether in cash or in kind, whether as a home-
based worker or as a temporary or casual worker, or
as a migrant worker, or workers employed by house-
holds including domestic workers, with a monthly
wage of an amount as may be notified by the Central
Government and State Government, as the case
may be”.
The need to recognize domestic workers was
expressed at the international level in 2011. The Law
and Policy Brief analysis tells us that the
International Labour Organization (ILO) Domestic
Workers Convention 2011(No. 189) had defined the
term “domestic worker”. According to the
Convention, “domestic work is work performed in
or for a household or households” and a domestic
worker is “any person engaged in domestic work
within an employment relationship”. The
Convention also addressed the oppression faced by
this community and evolved guidelines for their
welfare, which include working hours, protection
against abuse, harassment and violence, salary,
occupational hazards and social security. It also
extended its ambit to include child domestic work-
ers, live-in domestic workers, migrant domestic
LETTER FROM THE EDITOR
LAVERY was among the greatest of social
evils that afflicted the march of civilization.
By and large, it stands universally abol-
ished. On paper. But the practice continues
in mutant shapes and forms. In India—a
constitutional republic in which rights are continu-
ally expanding under Article 21—the untrammeled
exploitation of domestic workers is a matter of
national shame. They slog, they suffer. Through an
ongoing process of social churning, organized labor,
sex workers, child laborers, gays, have given birth to
influential lobbies. But there is no really powerful
voice for this huge army of informal workers. After
six decades of independence for India, there is really
no legal independence for India’s domestic sloggers.
Better late than never, a Law and Policy Brief
Report from OP Jindal University spotlights this
injustice. Written by Upasana Mahanta, Assistant
Professor and Assistant Director, Centre for
Women, Law and Social Change, Jindal Law School,
the well-researched document analyzes what all has
been done and needs to be done for domestic work-
ers in India, and the difficulties encountered while
framing policies for them.
Here are some highlights of the report:
At a time when castes and communities are fighting
for social recognition and achieving it, there is no
benchmark definition of domestic workers in India.
They are persona non grata. Secondly, evaluating or
weighing domestic service is an onerous task.
Another area of significant concern that the
report highlights is that there is no exact data to
arrive at the number of domestic workers in India.
Unofficial estimates on domestic work in India vary
from 2.5 million to 100 million, while the National
Sample Survey Organization estimates of 2004-05
pegs the number of domestic workers employed in
LEGAL HURDLES
FOR DOMESTIC
WORKERS
INDERJIT BADHWAR
S
4 June 15, 2016

UNEQUAL CITIZENS
(Left) Thousands of
children are illegally
employed in India;
(Below) domestics
demand legislation to
safeguard their rights
a few of the recommendations made by the task
force. But we also learn that the delivery has not
been as effective as it should be. For example,
domestic workers are clueless about the insurance
scheme and benefits unrolled for them. The criteria
for availing of the insurance scheme is shrouded in
confusion. Then, the states need to get cracking on
extending minimum wages to domestic workers.
The challenges remain. The report zeroes in on
the three major challenges that need to be overcome
to bring about a radical shift in the way domestic
workers function in India. They are: classifying the
type of work performed by a domestic worker; iden-
tifying an employer-employee relationship in a
domestic household; recognizing domestic environ-
ment as a workplace.
The Modi government would win plaudits and
accolades from progressive-minded people from all
across the world if it enacts effective legislation to
protect the interests of domestic workers. The
resistance would be stiff. The task is difficult, not
insurmountable.
workers and private employment agencies.
Admittedly, baby steps have been taken by the
government over the years. The Law and Policy
Brief analysis refers to the draft Domestic Workers
Welfare and Social Security Bill of 2010 that focused
on the exploitation of women and children as
domestic workers. It pointed out that rampant
exploitation and oppression were flourishing in the
absence of any legal protection. But the effort was in
vain as the Bill is yet to be passed by parliament.
Following this, a task force was set up which sub-
mitted its final report to the Ministry of Labour and
Employment on September 12, 2011. In its recom-
mendations, it proposed adoption of a national pol-
icy on domestic workers so that they could reap the
benefits of a labor rights’ framework. The policy is
nowhere in sight.
The task force also pushed for a code of practice
which was nothing but a clutch of regulatory
guidelines which were to take care of pressing
issues till a proper and separate law on domestic
workers was in place.
It is heartening to know from the report that the
national policy, touted as a landmark document to
serve the interests of domestic workers, was drafted.
It recognizes significant contributions made by
domestic workers for India’s economy and lays the
responsibility on states and the center to protect the
labor rights of domestic workers. It also breaks
down the concept of domestic workers into part-
time workers, full-time workers and live-in workers.
It recommends a minimum wage, normal hours of
work, overtime compensation, paid annual leave,
sick leave, maternity benefits, pension benefits, the
right to form unions, guidelines for placement agen-
cies handling employment of domestic workers and
grievance redressal, among others.
Women domestic workers in India received their
share of attention in 2013. The report says that
“domestic work” was included within the ambit of
the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act 2013.
While defining the woman domestic worker, the Act
notified “sexual harassment” as physical contact and
advances; a demand or request for sexual favors;
sexually colored remarks; showing pornography;
any other unwelcome physical, verbal or non-verbal
conduct of sexual nature. The law was notable
because for the first time, domestic space was
included as part of the workspace for women.
Actually, the government has tried to implement editor@indialegalonline.com
Anil Shakya
5INDIA LEGAL June 15, 2016

JUNE15,2016
Conflict of Interest?
The CBI has moved the Bombay High Court against the Maharashtra
government for appointing a special public prosecutor who had earlier
represented Rabia Khan, the mother of deceased actress Jiah Khan.
NEETA KOLHATKAR
Green Pastures
Litigation is not the only career open to law graduates. There are a host of
other jobs they can opt for. SUCHETA DASGUPTA
10
LEAD
18
No Quota for Jats
The Punjab and Haryana High Court has stayed a law passed by the state
government providing job reservations to this dominant community.
VIPIN PUBBY
20
23
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Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
Ajith Pillai
Bureau Chiefs
Neeta Kolhatkar, Mumbai
Vipin Kumar Chaubey, Lucknow
B N Tamta, Dehradun
Consultant
Patricia Mukhim, Shillong
Principal Correspondent
Harendra Chowdhary, Mathura
Reporters
Alok Singh, Allahabad
Gaurav Sharma, Varanasi
Associate Editors
Meha Mathur, Sucheta Dasgupta
Deputy Editor
Prabir Biswas
Senior Sub-Editor
Shailaja Paramathma
Sub-Editor
Tithi Mukherjee
Junior Sub-Editor
Sonal Gera
Art Director
Anthony Lawrence
Deputy Art Editor
Amitava Sen
Graphic Designer
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Photographer
Anil Shakya
Photo Researcher/News Coordinator
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Production
Pawan Kumar
Head Convergence Initiatives
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Convergence Manager
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Technical Executive (Social Media)
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Technical Executive
Anubhav Tyagi
No Unholy Matrimony
Getting into wedlock with a married person is no ground for dismissing
that person from government service, the Allahabad HC has ruled.
TITHI MUKHERJEE
COURTS
6 June 15, 2016

The DGCA has notified rules for the sector, but flights are still not risk-free.
Why has increased automation not led to more safety? SHOBHA JOHN
Fly by Error
REGULARS
Edit............................................................................... 4
Quote-Unquote........................................................... 8
Ringside.................................................................... 9
National Briefs.......................................................15, 43
Supreme Court........................................................... 16
Courts......................................................................... 24
International Briefs.......................................................71
Figure It Out................................................................ 80
Wordly Wise................................................................ 81
People......................................................................... 82
A draft citizenship bill in the neighboring country has trig-
gered controversy as it denies citizenship to the descendants
of those who fought against the formation of Bangladesh
during the 1971 war. PRAKASH BHANDARI
A complex sex tangle involving a celebrity and an order restraining
publication of its details has sparked off a debate in the UK about the
limits of privacy laws in the internet age. RAMESH MENON
Privacy a Vanishing Value 66
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
56
28
Young lawyers should have the moral courage to uphold the dignity
of the profession, says newly appointed Supreme Court judge
L Nageswara Rao. NAVANK SHEKHAR MISHRA
26“Choose the Ethical Path”
Who is a Bangladeshi?
The new Wetlands Rules 2016 seek to shift the onus of protecting
them onto the states. This is problematic for the cause is already
suffering from a multiplicity of authorities. DINESH C SHARMA
Watery Mess
50
In contravention of the Bar Council of India’s code of
conduct, several high court judges have their kin practicing
in the same court. NAVANK SHEKHAR MISHRA
ACTS & BILLS
Arguing in Chacha’s Court
40
Three controversial bills in Manipur have widened the
schism between the hill people and those in the valley.
Will political parties exploit it in the coming election in
2017? RAMESH MENON
Rumble in the Hills 34
INTERVIEW
The HRD ministry has ordered the overturning of a notification
that drastically increased teaching hours across grades, thereby
questioning the wisdom of this measure. MEHA MATHUR
U-Turn by UGC
EDUCATION
AVIATION
62
It’s high time the Rs 20,000-
crore cleanup mission,
Namami Gange, addressed
key concerns—construction
of several hydel projects and
water diversion.
DEVENDER SINGH ASWAL
Mission Possible?
FOCUS
ENVIRONMENT
LEGAL EYE
An NGO has started a unique initiative to empower survivors of acid
attacks and help them rediscover meaning and beauty in their lives.
TITHI MUKHERJEE
Gutsy Fighters 72
SOCIETY
In a win for animal rights, the top court backs sterilization or vaccination
as a solution to the problem of strays. SHAILAJA PARAMATHMA
A Dog’s Life 76
SPOTLIGHT
44
Cover Illustration and Design: ANTHONY LAWRENCE

QUOTE-UNQUOTE
“Tomorrow even if my child is
involved in illegality, I will not
spare him. I will take
stringent action against him.”
—Delhi CM Arvind Kejriwal, while
kicking off the party’s campaign in Goa
“We are thankful to
Ma-Mati-Manush. This is
a victory for the people,
this is a victory for
development….”
—Mamata Banerjee on her
party’s stupendous victory in
the assembly polls 2016, in
The Times Of India
“We would have loved to be on other
side of result. We went for a few but
wicket was nice. Me and AB (de
Villiers) getting out close to each
other was a big blow. Had I stayed
with AB a little longer, it would
have been different.”
—Virat Kohli, at the post-match
presentation ceremony of the
IPL 2016 final after his team Royal
Challengers Bangalore lost to
Sunrisers Hyderabad
“The return of Amar Singh is
dukhad (sad). Mulayam
Singh Yadav is the lord of
the party and I will not
challenge his decision, nor
is it within my jurisdiction to
do so.”
—Uttar Pradesh cabinet minister
Azam Khan speaking to media at
Rampur after Amar Singh was made
an SP candidate for the Rajya Sabha
“Congress has overdone the
naming game—they do not need so
many landmarks to prove that the
Nehru-Gandhi family
sacrificed so much
for the country.”
—Actor Rishi Kapoor,
over furore raised on his
remarks criticizing the
naming of national monu-
ments after the Nehru-Gandhi
family, in The Times Of India
“Will it (Congress) be the main
challenger to the BJP-led NDA in 2019,
or will it stand behind a hotchpotch
combination of ideologically disparate
regional groups?"
—FM Arun Jaitley, referring to Congress
position in the 2019 general elections, after its
debacle in the recent assembly polls, on
Facebook
“I thank the people of
Kerala who have given the
LDF another chance to rule
the state... I assure you that
I will stand as the sentinel of
the people of Kerala,
holding high the Left
approach and people's
issues.”
—Veteran CPM leader of
Kerala VS Achuthanandan, after his
party preferred Pinarayi Vijayan over
him as Kerala's next CM, in The
Indian Express
8 June 15, 2016

Justice that love gives is a surrender, justice that law
gives is a punishment.
—Mahatma Gandhi
VERDICT
INDIA LEGAL June 15, 2016 9
Aruna

LEAD/ Careers in Law
For a lawyer looking for an alternative placement, there are more than
enough work opportunities in today’s globalized world.
By Sucheta Dasgupta
Beyond the
Courts
10 June 15, 2016
Anthony Lawrence

Not interested in high-octane litigation? Not a problem. Arguably the most diverse profession on the
planet, law now offers a plethora of career options to its graduates, well-suited to individual needs,
talent, temperament and quest. One would do well to keep an open mind while examining them all.
Here are some of them:
Teaching is a preferred profession,
“even among well-known lawyers like
Ram Jethmalani”, feels Shital
Navandar who has been in this field for
over 11 years. After graduating in law,
one has to complete LLM and then
crack the NET/SET exam or do a PhD
to become a full-time lecturer in a col-
lege. The pay is according to UGC
scales. Having a PhD gives you the
chance to participate in research and
consultancy projects funded by
central and state governments, or
author books.
Teaching, of course, is not as
lucrative in terms of monetary remuner-
ation as some other jobs. Yet it is satis-
fying because it allows one to research
and contribute to the existing body of
knowledge as well as have a good
work-life balance. For thinkers and ora-
tors as well as those who like to inter-
act with the young and for those who
like being eternal students, updating
themselves on all new developments, it
is a good career fit. “Academics is a
lively and challenging field. You have to
be updated about everything around
you and can’t use your decade-old
notes to teach every year as law is not
like stagnant water, it is changing all
the time,” says Navandar.
Legalacademia
It started in the early 90s. Over the
last five years, it has emerged as
a popular career choice among
law graduates even as India—with
its “common law” system followed
in both the UK and the US and
surfeit of English-educated
lawyers—has become one of the
top destinations for outsourced
legal work. “It is like any other
desk job, with regular hours. We
soon see people who enjoy litiga-
tion leaving as they find this work
a bit tedious. But one also needs
good language skills and online
research skills. Diligence is a plus
point,” says Priyadarsini Deepak,
who has been with LegalEase
Solutions LLC, a Michigan-based
firm. The clients are mostly over-
seas lawyers and law firms and,
sometimes, multinationals.
Growth inside the organization is
fast; Deepak joined as a junior
research associate and became
research head (India operations)
in nine years. Pay is moderate;
while the work is detail-oriented
and often unexciting.
Leadership, tenacity and team
spirit are the three standout
qualities required by anyone
who wants to succeed in this
most lucrative and popular of
legal jobs in the present time.
A law firm job is a desk job,
involving long hours. It is also
a high-pressure job with a
huge attrition rate, cut-throat
competition and more than a
healthy measure of office poli-
tics. Top law firms pay salaries
in the range of `12-14 lakh a
year minus incentives and
perks. Salary increments may
go up to 50 percent of pay.
Growth inside the company is
quick; one may become a
partner in as few as seven
years from joining. Working
with big clients makes one
mature quickly.
LegalProcessOutsourcing Lawfirms

With the Modi government coming out
with the Startup India initiative, this is
an exciting time for legal entrepre-
neurs. Lawyers are uniquely equipped
for the job, with their knowledge about
starting a company, their superior
researching abilities and their fine com-
munication skills. All they require is a
business idea. Meet young Tanuj Kalia,
an NUJS Kolkata graduate, who heads
Lawctopus, a campus news-cum-
career web portal. An author and prize-
winning blogger at just 26, Kalia’s phi-
losophy is this: “Know yourself. With
your start-up, you are creating the
lifestyle for yourself. Some people like it
slow and idyllic, some people like if
fast. Don’t buy into what seems cooler
or bigger. Make it large, but know what
large means for you.”
In fact, legal entrepreneurship has
been a growing field with many
avenues. Ramanuj Mukherjee has co-
founded the four-year-old iPleaders, an
online legal education forum,
ClikLawyer, a marketplace for contract
enforcement, IP enforcement and
money recovery services, and
Superlawyer.in, a web-based legal
media venture. He believes that some-
one with leadership and problem solv-
ing skills and the ability to envision a
future that will inspire others, from
employees and investors to customers
is the man or woman for the job.
“However, in most cases people devel-
op these skills on the job, no one is
born with these skills,” he adds
Legalstartups
Research, advocacy and litigation
are the three aspects of the job of a
lawyer working with an NGO.
Passing the bar exam is a prerequi-
site if you want to head one of
these, though it may not be neces-
sary at the time of joining. Human
rights law is a minority field in India,
but not so abroad, says Colin
Gonsalves, co-founder of Human
Rights Law Network which repre-
sents the poorer sections of society
and works for environment, women,
Dalits, tribals and disabled. Himself
an IITian and a civil engineer, Colin
got attracted to law through his inter-
est in union issues and soon
enrolled in law school, studying by
night. “We are looking for people
with a passion for law and for mak-
ing India a better place to live in. We
pay reasonably but those who are
looking to make money will be dis-
appointed. There is a great deal of
satisfaction involved in the kind of
work we do. In fact, we also train
lawyers to develop their own client
base by working with us. To those
who are adventurous and who want
to do something meaningful with
their lives, there is no other option,”
Colin says.
NGOs
A think-tank focuses on research and
advocacy related to public policy. It
supports the work of the government by
bringing perspective that addresses
concerns of all relevant stakeholders
through research projects and consulta-
tion sessions. There are no set criteria
for joining a think-tank. Most think-tanks
have separate specialized verticals with-
in the organization. A lawyer is well
positioned to be eligible for various ver-
ticals in a think-tank given the close link
between law and policy in a variety of
disciplines. More importantly, a law
school curriculum equips you to be pre-
pared for handling new avenues of
research and advocacy, says Rachit
Ranjan, who is currently working as a
government relations lead with Uber but
earlier worked for the think-tank, Oval.
Think-tanks
12 June 15, 2016

Hiring lawyers as court reporters is a relatively recent trend in
the wake of the 2012 Supreme Court judgement on media
guidelines, says Raghul Sudheesh, lawyer-turned-journalist-
turned publisher who graduated from the National University
of Advanced Legal Studies (NUALS), Kochi, and went on to
open the investigative legal news portal Live Law. Incidentally,
it was he who filed an intervention application in the media
norms case before the constitution bench of the apex court.
He has now opened Lex Lab, a law book publication compa-
ny. Legal Profession and Appointment of Judges, authored by
retired Madras High Court judge, Justice K Chandru, is its
first book. An activist by nature, Sudheesh warns that legal
journalism per se is not a very lucrative field, but promises
that “if you have the will and the mindset, you can write sto-
ries and make changes.”
Legaljournalismandpublishing
IP protects the product of the mind, says interna-
tional lawyer Bharat Dube who works out of
Singapore, Noida and Switzerland. He heads
Strategic IP Information Pvt. Ltd. SIPI monitors IP
infringements, in particular, counterfeit and pirated
products in the context of the internet on behalf of
rights owners. The rights owners, or clients, are
from a wide range of industries, including luxury,
fashion, pharmaceuticals, spirits, oil and gas as
well as automobiles.
Passing the bar is a prerequisite to working as
an IP lawyer in a law firm, feels Dube, who also
believes that a background in science proves help-
ful. “In my own case, I’m no longer a practicing
attorney, but am now a legal entrepreneur. The
people working in my company generally do not
have a law degree. We provide information to rights
owners, and are not practicing law,” he explains.
IntellectualPropertylawfirms
Sports law is a relatively
new field. It includes
transactional duties, liti-
gation and dispute reso-
lution as well as adviso-
ry and structuring work.
Nandan Kamath works
in Bangalore out of a
firm called LawNK. He
feels that the number of
opportunities to work in
this field in India is still
limited but growing.
“There is a real opportu-
nity to be distinctive and
to enjoy your work in
this field. Be patient
and focus on learning
the ropes well.
Everything else will take
care of itself,” says
Nandan.
Sportslaw

A legal background is most sought after in a variety
of UN job streams, such as human rights, political
affairs, humanitarian affairs and investigations. UN
has a variety of employment/dispute resolution tri-
bunals, such as UN Disputes Tribunal and UN
Appeals Tribunal. It has also created various stand-
alone tribunals to try war crimes, crimes against
humanity and other serious breaches of international
law, such as ICTY, ICTR and ICC. The work in all
these tribunals and courts most often entails legal
analysis, writing, drafting and litigation.
The recruitment process is different for different
types of job contracts within the UN, informs Neha
Bhat, who is a consultant with the UN High
Commissioner for Refugees and is currently based in
Côte d'Ivoire (West Africa). She works with refugees
from Liberia, Democratic Republic of Congo,
Republic of Congo-Brazzaville and Togo. She
explains that quite a few positions in the UN are
advertised internally. Some positions are advertised
only for those who are already members of pre-exist-
ing UN rosters in various fields, such as civil affairs,
political affairs, human rights and legal officers. To be
accepted on the roster, one must go through a writ-
ten test and interview. One must renew their member-
ship every two-three years. A masters’ degree, profi-
ciency in a second international language such as
Spanish or French, experience of working in hardship
or isolated locations and a drivers’ license all make
an individual stand out, Neha says.
UnitedNations
World Bank and IMF
Legal clerkship
District attorneys and public prosecutors
Judicial services
Judge advocate-general
Alternative dispute resolution
Cyber law
Tax law
Company secretaryship
Politics
Source: Law as a Career by Tanuj Kalia
Someothercareeroptions
14 June 15, 2016

NATIONAL BRIEFS
TRAI for “free internet”
— Compiled by Sonal Gera
As the Telecom Regulatory
Authority of India (TRAI)
looks at ways to increase inter-
net access, its chief RS Sharma
has confirmed that he is open to
the idea of web content being
provided free of cost or at dis-
counted rates, just like toll-free
phone helplines, if it’s made
available to subscribers of all
mobile operators. Sharma said
the proposal does not violate
net neutrality and is not in vari-
ance with TRAI’s February
order prohibiting differential
tariffs. Activists are opposed to
the plan as they fear a “discrim-
inatory pricing model”.
President Pranab Mukherjee signed an ordi-
nance to provide relief to several states
vis-a-vis the NEET examinations. According to
the ordinance, states will now have the option of
holding their own entrance examinations—
although only for this year—instead of making
students take the all-India National Eligibility-
cum-Entrance Test (NEET) for admission
in undergraduate courses, in medical and
dental colleges.
The ordinance also gives the states the elbow
room to hold the tests in six vernacular
languages notified earlier.
Prime Minister Narendra
Modi has said that the
Center would extend all
assistance to Assam and
other north-eastern states
to ensure their speedy
development as part of the
government’s Act East
Policy. Modi was addressing
a gathering after the swear-
ing-in of the first BJP gov-
ernment in Assam under
Sarbananda Sonowal. He
also said: “We cannot rest if
only the western part of the
country progresses and the
eastern part lag behinds.”
“Assam will be the center
point to bring about effec-
tive all-round development
of the entire North-east and
this region will emerge as a
powerfully developed part
of the country as part of our
Act East Policy,” Modi
added.
The central government has scrapped the
long-pending `1,200 crore proposal to buy
heavyweight torpedoes from a subsidiary of
Italian conglomerate Finmeccanica to arm six
new Scorpene submarines. Sources told The
Times Of India that defense minister Manohar
Parrikar directed officials to urgently look for
“an alternative“ to the “Black Shark” torpedoes
manufactured by Finmeccanica subsidiary
Whitehead Alenia Sistemi Subacquel. Under the
existing “partial ban“ imposed on Finmeccanica
and its subsidiaries since August 2014, no fresh
deal can be inked with the Italian conglomerate
but ongoing contracts are allowed to continue.
The National Green
Tribunal's bench in
Ernakulam, Kerala, has ordered
that no diesel vehicle older than
10 years should be allowed to
ply in the six major cities of the
state. It also temporarily
banned registration of new
diesel vehicles over 2,000cc.
Cities mentioned in the order
are Thiruvananthapuram,
Kollam, Kochi, Thrissur,
Kozhikode and Kannur. The tri-
bunal's order made it clear that
any vehicle found violating the
directive after 30 days would be
liable to a fine of ` 5,000 per
violation as environmental
compensation. The directions
were issued in an interim order
in response to a plea filed by the
Lawyers’ Environmental
Awareness Forum.
Relief for states on NEET Act East Policy
to help NE
Black Shark torpedo
deal scrapped
Kerala roads to
be pollution-free

SUPREME COURT
Observing that it had to be proved beyond doubt that the bottled drinking
water, Rail Neer, supplied in trains and stations is safe for drinking, the
Supreme Court made the Railways accountable for establishing that it
was indeed safe for consumption. The Court felt that since it was the
Railways which had mandated that no other water brand except Rail
Neer could be sold in trains and railways stations, the onus lay on it to
ensure quality.
In an interim order that would last till July 5, the next date of
hearing in the case, the apex court also gave its approval for con-
tractors and caterers to sell other brands in the Mumbai division.
The Railways had earlier issued two notifications in 2015 asking
them not to sell any other brand except Rail Neer.
The Indian Railways’ Caterers Association had pleaded against
the notifications, armed with two lab reports, one from a govern-
ment lab and other from a Ghaziabad lab, raising doubts about the
purity of Rail Neer. On the other hand, the Railways too came up with
lab reports establishing that Rail Neer was safe. Sensing the confu-
sion, the Court sought a definitive report was needed.
The Association also pleaded that the notifications were an infringe-
ment on its fundamental right to do business and did not offer alternatives
for consumers to try out other brands.
Is Rail Neer indeed safe?
Realizing that there was a need for intro-
ducing stringent laws to prevent
increasing cruelty to animals and their
exploitation in the pet shop industry, the
Supreme Court decided to look into the
issue. It asked the center to respond to a
PIL seeking tougher punishment and
penalty for such crimes. The PIL, filed by
Angel Trust NGO, wanted the Court to
step in and address the issue in earnest.
It drew the Court’s attention to inef-
fective legislations and poor enforcement
that have allowed people to impart cruel-
ty to animals without fear. The petition
also apprised the Court that the
Prevention of Cruelty to Animals Act
1960 had lost its teeth over the years and
needed to be amended to bring in the
deterrence factor.
Informing the Court that punishment for
crimes under the Act was only `50 with no
jail term, the PIL pointed to many oddities in
the existing laws and sought regulations and
guidelines. The Act does not even take cog-
nizance of animal cruelty as an offense, the
PIL noted.
Tough laws on
animal cruelty
16 June 15, 2016

—Compiled by Prabir Biswas
Illustrations: UdayShankar
CPCBchiefmustappearinCourt
The Central Pollution
Control Board (CPCB)
failed to get relief from a
vacation bench of the
Supreme Court on a bailable
warrant issued by its regular
bench against its chairman.
The bailable warrant was
issued in May after he avoid-
ed Court orders to appear in
person and explain measures
initiated by the Board to deal
with silicosis deaths. Hund-
reds of workers in Gujarat
perish every year due to the
lung disease contracted after
inhaling silica-laden dust.
Ruling that it could not
interfere with the order of a
regular bench, the vacation
bench concluded that it could
not stay the warrant and
asked CPCB to follow the
order and make its chairman
appear before the regular
bench on June 30.
It was in February that the
regular bench wanted CPCB
to inform it about preventive
measures taken against
deaths due to silicosis and
make sure the workers were
provided a safe environment.
It also wanted CPCB to
respond to a report placed in
court about the disease. But
finding later that CPCB did
not turn up, the bench had
ordered the chief to appear
in court.
The Court was hearing a
petition from an NGO that
wanted compensation and
rehabilitation for tribal work-
ers from MP who were
afflicted with Silicosis while
working in the crushing fac-
tories in Gujarat.
The Supreme recently struck down the TRAI notification
issued in October last year that telecom companies
were bound to pay compensation to consumers for call
drops. The Court felt that the rule was “arbitrary”, “ille-
gal” and “unreasonable”.
TRAI had mandated that telecom companies pay
mobile users `1 for every call drop, and capped the
penalty at three calls per day.
Observing that it was not always the companies that
were at fault and the blame for call drops could also be
laid at the door of the customers, the apex court ruled
that no proper thought had gone into the TRAI’s decision.
It even raised objection that TRAI did not take stakehold-
ers into confidence before framing such a rule. According
to the Court, telecom companies could not be crucified at
the altar of consumer interest.
The Court questioned the basis for fixing `1 per call
drop by TRAI and was not convinced about limiting com-
pensation on call drops to three a day.
The TRAI rule was slated to be effective from January
1 this year on a trial basis for six months.
The Supreme Court has allowed the
Italian marine, Salvatore Girone, to go
back home. Girone and another Italian
marine, Massimiliano Lattore, have been
under the judicial scanner for killing
two Indian fishermen off the Kerala
coast in 2012.
Lattore is already in Italy, on the
orders of the apex court, which gave
him relief on medical grounds.
Girone will stay in Italy till the con-
tentious issue of jurisdiction over India’s
right to criminally prosecute them is not
decided by the International Tribunal for
the Law of the Sea. The Court ordered
that Girone will have to return in case
the marines are tried in India.
The Center supported Girone’s cause
and all its conditions for releasing Girone
were accepted by his counsel.
TRAI rule nixed
Italian marine
set free

T
HE Jiah Khan trial has been rid-
den with problems from the
beginning. Rabia Khan, the
mother of the deceased actress
who reportedly committed sui-
cide on June 3, 2013, has time and again
opposed investigations by the Crime Branch
of Mumbai and the CBI as she said they did
not conduct them as per her wish. She had
wanted a Special Investigating Team (SIT)
and had also asked for the FBI and the CIA
to probe her daughter’s death. When Rabia
COURTS/ Jiah Khan Case
The CBI has moved the Bombay
High Court against the Maharashtra
government for appointing a Special
Public Prosecutor who earlier
represented Rabia Khan, the
mother of the deceased actress.
How fair is this trial?
By Neeta Kolhatkar in Mumbai
ConflictingInterests?
18 June 15, 2016

IL
recently moved the Supreme Court to stay
the trial, she was directed back to the
Bombay High Court. The apex court has
asked the High Court to expedite the matter.
The trial has been running into complica-
tions, the latest being the appointment of
advocate Dinesh Tiwari as Special Public
Prosecutor. Sources in the CBI told India
Legal: “We have got the sanction to move the
High Court against the Maharashtra govern-
ment in the appointment of Dinesh Tiwari as
Special Public Prosecutor.” The investigating
officer said that the CBI opposed this appoint-
ment as Tiwari had failed to inform the Court
that he has previously represented the
aggrieved party, Rabia Khan.
RULE BOOK
As per the notification of the law and judici-
ary department of the Maharashtra govern-
ment, the appointment of advocate Tiwari
has been as per Rule number 22, under the
Maharashtra Law Officers (Appointment
and Service) Rules, 1984. However, this rule
does not specify if a counsel, who has already
appeared for the applicant in the same case,
can be appointed.
The state government issued a notifica-
tion on November 6, 2015, after receiving an
application and a demand draft of `50,000
by Rabia Khan. An officer in the law and
judiciary department said: “We receive a pro-
posal from the Home Department and often
this comes directly or sometimes on the rec-
ommendation of the police commissioner.
We issue the notification as per these recom-
mendations.”
The CBI defended its stand saying that
Tiwari has been privy to its investigations
and the Crime Branch. Tiwari has demanded
a new probe by the SIT. The CBI feels this is
partisan. “Tomorrow he will reject the SIT
and demand a new investigating agency,” said
the investigating officer.
DIFFERENT VERSIONS
Tiwari says: “The CBI is lying. I got the per-
mission from the law and judiciary depart-
ment where all has been disclosed in the
application. Also, the Court knows that I
appeared in the past, a fact which the
accused also knows. The High Court allows
the appointment of a lawyer who has
appeared in the past.” He added: “What the
CBI wants is to fight a proxy war for others.”
A lawyer on condition of anonymity said
the appointment is against the guidelines
laid down after the Shiv Kumar and
Hukumchand ruling wherein Justice KT
Thomas clearly stated who should be
appointed as Special Public Prosecutor. His
judgment said: “It is for the protection of the
accused person in the sessions trials (in
India) that provision is made to have the case
against him prosecuted only by a Public
Prosecutor and not by any counsel engaged
by the aggrieved private party. Fairness to the
accused who faces prosecution is the raison
d’etre of the legislative insistence on
that score.”
A valid question being raised against the
CBI is why it kept quiet from the time it filed
a chargesheet in the matter in December last
year (Tiwari was appointed on November 6).
Rajiv Chavan, president of the Western
Bar Association, said: “It is the responsibility
of the lawyer to inform the court of
having being partisan. Since he has not, it is
a breach of Rules 13 & 14 of the Bar Council
of India.”
From the
beginning, the
trial has run into
complications.
Rabia Khan (left)
has time and
again opposed
the investigations
by the Crime
Branch of
Mumbai and the
CBI as she said
they did not
conduct them as
per her wish.

COURTS/ Haryana Agitation
T
HE question over the con-
troversial decision to pro-
vide reservation for the Jat
community in Haryana in
the wake of a violent protest
earlier this year is back to
square one with the Punjab
and Haryana High Court staying a bill which
was hurriedly passed.
The agitation, which led to an orgy of vio-
lence spread over five days in Haryana and
which claimed at least 34 lives and injured over
400, was controlled only after curfew was
imposed in several parts of the state and the
army called to restore normalcy. Towards the
far end of the agitation, Haryana chief minister
Manohar Lal Khattar had announced his gov-
ernment's resolve to provide reservations for
the community.
DOMINANT STATUS
True to his word, his government came out
with a bill on March 29. It took the assembly
only a few minutes to pass it as none of the par-
ties, including the Congress, wanted to be seen
opposing it. The reason was not far to seek—
the Jats account for a dominant 29 percent of
the population. More importantly, the commu-
nity has been dominating politics in the state.
Since Haryana’s creation in 1966, seven of its
10 chief ministers were from this community.
It was no coincidence that the leaders of
both the major opposition parties in the assem-
bly, the Congress and the Om Prakash
Chautala-led INLD, are from the Jat commu-
nity and could not have opposed reservation
for their community. They even ignored criti-
cism that the bill was bad in law as similar pro-
The Punjab and Haryana
High Court has cracked
down on a bill passed by
the Haryana government in
March which gave job
quotas to this dominant
community
By Vipin Pubby
Billfor
JatsStayed
STRONG-ARM TACTICS
Jats block railway tracks in
February demanding quotas
20 June 15, 2016
UNI

IL
visions had earlier been quashed by the courts.
In fact, the Supreme Court had in March
2015 set aside the center’s notification on inclu-
sion of Jats in the OBC category of the central
list. The same year, the Punjab and Haryana
High Court too had stayed the Haryana gov-
ernment notification giving 10 percent quota to
Jats and four other communities under the
Special OBC category. That notification was
issued by the Congress-led Bhupinder Singh
Hooda government and the bill brought out by
the Khattar government was on similar lines.
BACKWARD CLASSES?
The Haryana Backward Classes (Reservation
in Services and Admission in Educational
Institutions) Bill became an act after the gover-
nor's assent and it was notified on May 13. It
provided for 10 percent reservation in govern-
ment jobs for Class III and IV posts and six
percent quota for Class I and II posts to Jats,
Jat Sikhs, Rors, Bishnois, Tyagis and Mulla Jats
under a newly carved-out Backward Classes
(C) category.
In less than 10 days, the new law was chal-
lenged by Bhiwani-based petitioner Murari Lal
Gupta, through his counsel Mukesh Kumar
Verma. He said that the reservation was provid-
ed on the basis of the Justice K C Gupta
Commission report, which had been rejected by
the Supreme Court. Reservation on the basis of
the Justice Gupta report would be tantamount
to revision of a judicial order which can’t be
done by the legislature. Also, it violated the apex
court-laid upper limit of 50 percent quotas.
With the stay granted by a division bench
comprising Justices SS Saron and Gurmeet
Ram, the operation of the provisions, including
reservation in educational institutions, has
been put on hold. The bench has issued a
notice to the state government seeking justifi-
cation of its action and has posted the case for
July 21.
JUDICIAL LOOPHOLES
Jat leaders have blamed the Khattar govern-
ment for not plugging the judicial loopholes
and not making provisions to strengthen the
amended law. They are likely to contest the
case in the High Court as well as step up their
agitation to demand such reservation by the
central government across the country.
Significantly, the Haryana government had
not filed a caveat in the High Court to avoid a
stay despite clear signals that the new law
would be challenged in the Court. Critics point
out that the government did not appear too
keen on the legislation as it was meant to douse
the fires and that it would like the courts to
throw out the provisions. It is seen as yet
another attempt by politicians to shift respon-
sibility and put the onus on courts despite
protestations that the judiciary was stepping
into the domain of the legislature.
Bhupinder Singh Hooda’s
government had issued a
notification to give 10 percent
quotas to Jats in 2014. It was
stayed by the HC in 2015.
Jat leader Om Prakash
Chautala heads the INLD
which did not oppose the bill
to provide reservations to the
community in the assembly.
CM Manohar Lal Khattar had
announced his government’s
resolve to provide quotas to
the Jats in the midst of the
February stir.

COURTS/ Second Marriage
Can government servants who marry those already married be thrown out
of their jobs? The judiciary takes a measured view
By Tithi Mukherjee
E
NTERING into wedlock with a
married person or remarrying
when you are already married to
someone is not such a grave
offense for which you lose your
government job, said the Allahabad High
Court in a recent ruling.
A bench of Justice MC Tripathi held that
as such a marriage is anyway considered null
and void, there is no rule for rustication
under Government Servant Conduct Rules
1956, Section 29 (2). It annulled the dis-
missal orders of lady constable Aneeta Yadav,
who had lost her job because she married a
policeman with four children.
Yadav joined UP Police on March 15, 1994,
and married UP Police constable Brijesh
Kumar Yadav within a year. A complaint
against this marriage was filed and a pro-
longed investigation followed. While Brijesh
got away with just a censure remark in his
service book, Aneeta was unfairly sacked on
the orders of the SP on June 20, 2014.
UNFAIR WORLD
Aneeta took the matter to the DIG and IG,
and finally knocked on the doors of the High
Court. Vijay Gautam, counsel for Aneeta,
submitted that at the time of her marriage,
she had no knowledge that Brijesh was mar-
ried and had four children and therefore, she
had committed no misconduct. He also
pointed out that she had rendered more than
20 years of service to the full satisfaction of
her senior officers. Citing previous judg-
ments, Gautam claimed that dismissal from
service was too harsh a punishment and that
a minor charge would suffice.
In a similar case of Shravan Kumar
Panday vs State of UP and Os (2010) 8 ADJ
243, the Allahabad High Court had ruled:
“In the present case awarding a punishment
of dismissal that is admittedly a major pun-
ishment is certainly against the letter and
spirit of Rule 29.”
In another case of Smt Rajbala Sharma vs
State of UP and ors the Court had ruled:
“The misconduct which has been imputed to
the petitioner is not in any manner affecting
the discharge of her official duty... The pun-
ishment of dismissal from service awarded to
the petitioner appears to be harsh...”
In the present case, the Court ruled that
while her marrying an already married con-
stable was misconduct, there was no provi-
sion for dismissal. It said that the marriage
was cancelled out under Section 11 read with
Section 5 of the Hindu Marriage Act, 1955
and no punishment could be awarded
against her under Section 29 of the 1956
rules. The concerned department could take
action at a smaller level, but couldn’t dismiss
her. The Court directed UP Police to rein-
state her with all consequential benefits.
UnholyMatrimony?
IL
While Brijesh
got away with a
censure remark
in his service
book, Aneeta
was sacked on
the orders of the
SP on June 20,
2014.

COURTS
CBI’s probe against Rawat upheld
The Uttarakhand High Court
refused to grant respite to chief
minister Harish Rawat in the pur-
ported sting operation where he
was shown offering money to
rebel Congress MLS to solicit their
support. The Court turned down
the plea of the Rawat government
that the case, being probed by the
CBI, be dropped.
The Court also wanted to know
how the state government could
issue a notification withdrawing
the case. This put a question mark
on its authority to do so. The CBI
had rejected the notification, say-
ing the probe was perfectly legal.
The CBI was given the case during
central rule in Uttarakhand.
However, the Court issued
directions to the central investiga-
ting agency to deal respectfully
with the CM during its enquiry.
It also asked Rawat to whole-
heartedly participate in the
investigations.
Rawat had appeared at the CBI
headquarters for questioning on
May 24 and was asked to appear
again on June 7.
Making a case for increasing the salary
of public prosecutors, the Delhi High
Court blamed the center for sitting on the
proposal for revision of their pay scales for-
warded by the Delhi government.
The Court noted that the center did not
sanction it despite the fact that the money
was to be paid by the Delhi government. It
asked Additional Solicitor General Sanjay
Jain, who was representing the center, to
solve the problem.
The Court was hearing a contempt peti-
tion from advocate Ashish Dixit on the mat-
ter. Dixit apprised the Court that its
September 2015 order to the Delhi govern-
ment to raise the salaries of public prose-
cutors was yet to be implemented.
The Court was aghast at the range of
objections raised by the center on the issue
and observed that they did not hold ground.
The Delhi government complained that the
proposal was sent to the LG but he had
raised objections on the authority of the
Delhi government to decide service matters
in his note to the president.
Increase pay of
public prosecutors
In a joint petition, advocate HC Arora
and ex-district attorney of Ludhiana
Mitter Sain Goyal recently pleaded
before the Punjab and Haryana High
Court that Punjabi should be the offi-
cial language at all subordinate courts
in the state. They requested the Court
to annul the February 1991 notice—
that English must be the language used
in all subordinate courts—from the
register of the High Court .
The petitioners urged that it was
very difficult for the litigants to com-
prehend court proceedings in English
and understand the judgments. They
referred to the Punjab Official language
(Amendment) Act 2008, notified in
November 2008. According to the Act,
all subordinate courts under the High
Court like revenue court and rent tri-
bunals or any tribunal formed by the
state government shall work in Punjabi
after six months.
It pointed out that the Act also
mandated that all infrastructure and
training of concerned staff be in place
Punjabiinsubordinate
courts
24 June 15, 2016

Section 279 of IPC related to
rash driving or Section 184
of the Motor Vehicles Act 1988
linked with driving dangerously
can’t be slapped against a per-
son just because he was driving
at a high speed, the Bombay
High Court ruled. The Court fur-
ther clarified that it was very
important to examine the situa-
tion in which the driver was in.
The observation came when
the Court was dealing with a
case wherein a student, Khizeer
Shah, was arrested by the
Shivaji Park police while he was
driving near Shivaji Park in 2014.
According to the police report,
he was found driving at a high
speed and in a negligent manner.
But the police chargesheet could
not explain the negligence.
Shah approached the Court
for relief on the ground that there
was no reason to initiate legal
proceedings against him and the
case be dropped as it may harm
his academic progress.
The Court concluded that no
offense under Section 279 and
Section 184 could be made out
against Shah, and criminal pro-
ceedings initiated against him by
the Shivaji Park police were ille-
gal. It also took the police to task
for its “casual” and “cavalier”
attitude.
— Compiled by Prabir Biswas; Illustrations: UdayShankar
Focus on compensation
The Kerala High Court insisted that the center and
state provide immediate compensation to the vic-
tims of the devastating fire at the Puttingal Temple in
Kollam district in Kerala. Initiating criminal proceedings
against those involved could take a back seat as of
now, it observed.
The Court advised both to take into account the
recommendations on victim compensation made by
NR Madhava Menon, former chairman of National
Judicial Academy, Bhopal, and cautioned that politics
should not come in the way of doling out compensa-
tion. It also asked the state government to initiate
measures quickly so that those found accountable for
the tragedy be made to pay the compensation amount.
Pulling up the disaster management authority for its
laxity in taking preventive steps to avert such a tragedy,
the Court wanted to know how far the probe by the
crime branch of the state government had proceeded
and wanted a report on the next date of hearing.
The District and Sessions Judge (east)
of Delhi, Talwant Singh recently took
strong objection to using internet,
WhatsApp and Facebook by court staff
on their mobile phones while on duty.
In a strongly worded circular issued
by him to judicial officers and adminis-
trative staff, Singh made it clear that
mobile phones ought to be used only
in crisis situations to get in touch
with family members. The circular also
warns of stringent action against errant
court staff.
Use of mobile phones or any other
electronic gadget is anyway not allowed
during court proceedings but an excep-
tion is made for court staff in the case
of an emergency.
High speed is
not an offense
for the said purpose within the time
period of six months.
The petitioners highlighted that the
provision was yet to be implemented
after eight years as the registrar of the
High Court had failed to notify the new
policy to the subordinate courts.
The Court asked the Punjab gov-
ernment and director general of the
High Court to respond by August 9.
Stopusingmobilephones

INTERVIEW/Justice L Nageswara Rao
One of the judges appointed to the Supreme
Court on May 13 among three others was
former additional solicitor-general
L NAGESWARA RAO. With this, the apex court
has raised its strength to 29 against the 31
required. Justice Rao is the only senior
advocate elevated thus, whereas the other three
have been chief justices of various high courts
in India. He was earlier the counsel to Tamil
Nadu chief minister Jayalalithaa in the
disproportionate assets case in the Supreme
Court. Justice Rao was also a member of the
Supreme Court-appointed Mudgal Committee
which probed allegations of corruption, betting
and spot-fixing in the Indian Premier League
matches. His appointment is seen as an
eloquent testimony to both the bar and the
bench. In an exclusive interview to
NAVANK SHEKHAR MISHRA before he was
appointed to the Supreme Court, Justice Rao
says that young lawyers should be ethical and
have the courage to change.
“Young
Lawyers
Should
Choose the
Ethical Path”
What made you choose the legal
profession?
I am a first generation lawyer. I was
attracted to this legal profession in view of
the challenges that are taken up by the
lawyers. I have read biographies of great
lawyers and judges. I was also impressed
with the task that is taken up by the
lawyers and judges in the process of inter-
pretation of law and moulding it to the
needs of the society.
What do you prefer, practicing law or
studying it?
I was a reluctant starter in the field of law.
But, once I started practising law, there was
a lot of interest that was generated from
reading and understanding it. Practising
law includes a detailed study of law. Hence.
studying and practising are not exclusive. I
have thoroughly enjoyed being a lawyer
and never felt that I should have been in a
different profession.
26 June 15, 2016

You might be terribly busy. Do you find
any time to follow your hobbies?
There is no free time for any busy lawyer,
especially, a lawyer practising in the
Supreme Court. Weekends are earmarked
for the preparation of opinions and final
hearings for the next week. Saturday is
meant for clearing the arrears and reading
journals and Sunday for preparing matters
coming up on Monday. I play golf on the
weekends.
We all know how passionate you are
about cricket. Who is your favourite
cricketer?
I have been playing cricket from childhood.
I enjoy watching cricket even now. VVS
Laxman and Rahul Dravid are my favorite
cricketers. Apart from the enormous skill
they have, the fair manner in which they
play the game is an example that sho-
uld be followed by other sportsmen. A
sportsman has to be competitive to suc-
ceed at any level. But unnecessary
aggression is not required.
Do you have any particular likes as far as
food goes?
I have very simple eating habits. I have no
problem with any food but, at home, I nor-
mally eat south Indian vegetarian food,
though I am a non-vegetarian as well.
Do you have any message for upcoming
lawyers?
My advice to upcoming lawyers is that they
should concentrate on learning the funda-
mentals of law and honing their skills as
lawyers. Opportunity would definitely
come, but, when it comes, one should be
ready to seize it and prove themselves. The
initial years in the profession should be
spent by learning under a senior lawyer
which would stand in good stead in their
future. It is very important to be ethical
and not to deviate from the right path. It is
for young lawyers to continue to uphold the
dignity of the profession of law.
“There is no
free time for
any busy
lawyer,
especially, a
lawyer
practising in
the Supreme
Court.
Weekends are
earmarked for
preparation of
opinions and
final hearings
for the next
week.”
IL

If this bill becomes an act, Bangladeshis who
took part in the 1971 liberation war, foreign
nationals and those with dual citizenship will
find it harder to become citizens of this country
By Prakash Bhandari in Dhaka
T
HE liberation war of 1971
is so much a part of the
fabric of Bangladesh that
it has now affected even
the children of those who
took part in it. A draft cit-
izenship bill which was
approved by the Sheikh Hasina government in
February has created ripples as it denies citi-
zenship to the descendants of those who fought
against the formation of Bangladesh and sided
with Pakistan during the 1971 war. It also
denies citizenship to those engaged in activities
DATE WITH DESTINY
Lt Gen Niazi (in black beret) signs the
instrument of surrender under the
gaze of Lt Gen Jagjit Singh Aurora
(left) on December 16, 1971
Hard
Times
against Bangladesh even after its formation.
This has created a hornet’s nest as intellectu-
als and legal brains are of the opinion that
descendants of war criminals should not be
denied rights to citizenship for an offence com-
mitted by their fathers and forefathers. Many
so-called “war criminals” who sided with undi-
vided Pakistan and opposed the theory of a sep-
arate Bangladesh were later tried and hanged or
imprisoned for life by the new government.
The latest to be hanged was chief of the
Jamaat-e-Islami, Motiur Rahman Nizami, on
May 11 after the Supreme Court found him
ACTS & BILLS/ Bangladesh/Draft Citizenship Bill
28 June 15, 2016

guilty of acts of cold-blooded cruelty and for
aiding the Pakistan army. Nizami led a group
called Al-Badr which unleashed ruthless force
to wipe out the brightest minds of Bangladesh
and thwart its progress on the eve of a final vic-
tory. Ironically, Nizami served as agriculture
minister during the BNP-Jamaat rule.
NEEDLESS PUNISHMENT
After his hanging, a big question arose over
whether the descendants of war criminals who
fled Bangladesh and are now living abroad
would be denied the right to be citizens of
Bangladesh once the draft Citizenship Act
2016 was passed by Bangladesh parliament. “It
is against natural justice and unacceptable to
make the children and descendants liable for
the misdemeanors of their parents. This draft
may create new difficulties for the descendants
of war criminals in retaining their ties with
Bangladesh,” said Prof CR Abrar of Dhaka
University.
Abrar, who is also executive director of the
Refugee and Migratory Movement Research
Unit (RMMRU), said that once the draft is
made into law, it may also result in denying
UNCERTAIN FUTURE
Bangladeshis trudge
towards a refugee camp
on the outskirts of Kolkata
in 1971
Courtesy: the official mujibnagar website

citizenship to national leaders, particularly in
the Chittagong Hill Tracts, who are engaged
in the struggle for self-determination for peo-
ple there.
Sara Hossain, a barrister and human rights
activist, has demanded a clear definition of the
term “engaged in activities against Bangla-
desh”. “Without a clear definition, such an act
would strip anyone of his citizenship. This Act
has provisions for seven categories, including
permanent Bangladeshi nationals and foreign-
ers who have been living in the country contin-
uously for a long time,” said Hossain.
The draft updated the Bangladesh
Citizenship (temporary provisions) Ordinance
of 1972 and incorporated recommendations
given by the Law Commission in 2005 and
2012. “The draft proposals say that the applica-
tions of those who fought or are fighting a war
against Bangladesh by joining the military or
paramilitary forces of any other country will
never be considered,” said Hossain.
FORMATION OF BANGLADESH
During the liberation war, Pakistan under
President Yahya Khan tried to douse the fire of
freedom by luring several influential people
who opposed the demand for a separate
nation. This included Nizami who made all
possible efforts during the 1971 war to prevent
the formation of Bangladesh. And when he
was hanged, many people who still felt that
that the formation of Bangladesh was a mis-
take, demonstrated on the streets of Dhaka and
other places in the country. The Pakistan
National Assembly condemned the hanging
and paid glowing tributes to the hanged leader.
Incidentally, prior to Nizami, Abdul Quader
Mollah, assistant general secretary of the
Jamaat-e-Islami, Ali Ahsan Mohammed
Mujaheed, secretary-general of the Jamaat-e-
Islami, Md Kamaruzzaman, an assistant gen-
eral secretary of the Jamaat-e-Islami and
Salauddin Quader Choudhry, BNP’s standing
committee member were hanged for waging
war against Bangladesh and for the killings.
Also, the former chief of the Jamaat, Ghulam
Azam and former BNP minister Abdul Alim
were tried as war criminals.
Abdul Kalam Azad, expelled Jamaat mem-
ber, Ashrafuzzaman Khan, a student leader,
Choudhry Moinuddin, another student leader,
Zahid Hossain Khokon, BNP leader and for-
mer Jatiya Party MP Abdul Jaffar are all fugi-
Pakistan president
Yahya Khan tried to
lure several influential
people who were
opposed to the
demand for
Bangladesh.
The execution of war
criminals has been a
moment of reckoning
for Sheikh Hasina
Wajed who heads the
country’s Awami
League government.
Leaders belonging to
the BNP, headed by
Begum Khaleda Zia,
have been found
guilty of war crimes.
At least one of them
has been executed.
30 June 15, 2016

“Bangladeshis abroad should remain
Bangladeshis... Unlike India, Bangladesh
has long accepted the notion of dual
citizenship for its citizens abroad.”
—Nazr-ul Khasru, a tribunal judge in Britain
Twitter
long accepted the notion of dual citizenship
for its citizens abroad, though it has still not
put it into a firm legislative footing. The
Draft Bangladesh Citizenship Bill 2016 is
the first potential legislation to rectify that,”
he said.
However, the Bill seems poorly drafted
and has some errors. For example, the proper
interpretation of citizenship by birth con-
tained in Section 4 (1) of the Bill seems to be
that those born in Bangladesh whose parents
died before March 26, 1971, are not regarded
as having citizenship by birth.
Section 5 states that a person born abroad
to a Bangladeshi parent immediately before
the commencement of the Act will be a citizen
of Bangladesh. But the person must be regis-
tered with the relevant Bangladesh Mission
within two years of birth or the com-
MASS APPEAL
Thousands attend the funeral
of JeI chief Motiur Rahman
Nizami (below) in Dhaka; he
was recently executed for
war crimes
tives now and reside abroad. They appealed
against the death sentence but this was reject-
ed by the courts and they are in hiding like
many other war criminals and their families.
Their appeals have not gone down well with
the ruling Awami party. Its spokesperson,
Abdul Mollah, said: “These war criminals fled
to other countries with their families and are
mostly in the UK, the US, Canada and Gulf
countries. They have raised their families and
now they are demanding citizenship of a coun-
try whose formation they opposed.”
DUAL CITIZENSHIP
However, a barrister and a tribunal judge in
Britain, Nazr-ul Khasru, said Bangladesh
would gain nothing by restricting or taking
away the citizenships of those countrymen
who had ventured out and acquired the citi-
zenships of a rich country. In most cases, the
purpose behind it is to gain better living con-
ditions for themselves and their relatives who
were left behind.
“These Bangladeshis should be actively
encouraged to retain their link with their
motherland. Bangladeshis abroad should
remain Bangladeshis for generations to come
with the same rights and obligations as those
back home. Unlike India, Bangladesh has

IL
mencement of the Act, whichever is later.
The direct consequences of the restric-
tions in this section are two-fold. Firstly, if
those who are born prior to the commence-
ment of the Act fail to register within two
years of its commencement, then they will
not get Bangladeshi citizenship under this
provision. Secondly, the children of those
who became Bangladeshi citizens by virtue of
this section will not be able to claim citizen-
ship as their parents would have become
Bangladeshi citizens after the commence-
ment of the Act and are therefore outside the
ambit of this section. In other words, it would
be virtually impossible for third or fourth
generation Bangladeshis to claim
Bangladeshi citizenship.
Section 6 says that a birth-citizen of
Bangladesh loses his citizenship upon
acquiring a foreign citizenship, but then
under certain circumstances, he may apply to
the Bangladeshi government for the same. By
taking away a Bangladeshi’s birth-citizenship
and by placing the onus on the individual to
go through a bureaucratic process to regain
it, the draft Bill sends out the message that
those who have taken up foreign citizenship
are not really welcome.
NO RIGHTS
Bangladeshi citizens with dual citizenship will
also not be able to stand for elections to parlia-
ment or the local government and will not be
eligible to be elected as president of the coun-
try, will not be allowed any appointment in the
service of the country and cannot get involved
in any political party. So if the Bill goes
through, there will be no difference between
foreign nationals and Bangladeshis with dual
citizenship. However, the founding fathers of
the constitution of Bangladesh wanted all citi-
zens to have the same fundamental rights.
The constitution considers all citizens of
Bangladesh equal, whether they are birth citi-
zens, naturalized citizens or dual citizens. And
if this has to be changed or restricted, only the
constitution has the power to do so.
Experts say that if the government wants to
be seen as liberal and progressive, then this
draft Bill must be quickly shelved. The Bill
should be re-drafted incorporating the princi-
ples of inclusivity.
Abdul Quader Mollah,
assistant general
secretary of the
Jamaat-e-Islami and
infamously known as
the Butcher of Mirpur,
was hanged in 2013.
Ali Ahsaan
Mohammed Mujaheed,
secretary-general of the
JeI, was hanged on
November 22, 2015,
for waging war against
Bangladesh.
Ex-minister and
former BNP leader
Salauddin Quader
Chowdhury was
also hanged in
2015 on charges
of war crimes.
32 June 15, 2016

ACTS AND BILLS/ Manipur Inner Line Permit
M
ANIPUR has
been gripped by
protests and
bandhs for the
last eight months,
paralysing normal
life and sending
prices of essential commodities skyrocketing
and there is little sign of it abating. It all
started when three controversial bills were
passed by the Ibobi Singh government,
inflaming passions among the tribals who
stay in the hills around the valley.
The tribals who constitute more than 57
percent of the population suspect that these
Inflamed
Passions
A serious political crisis
has embroiled the state
as three controversial
bills have divided the
tribals in the hills from the
Meiteis in the valley. Will
this be exploited by
national parties during
polls next year?
By Ramesh Menon
34 June 15, 2016

bills will ultimately end up marginalizing
mainly the Naga and Kuki tribals, diluting
their culture and stopping their natural
progress and growth.
SERIOUS STAND-OFF
These bills were passed by the Congress-led
Ibobi Singh government in August 2015.
Ever since, Manipur’s descent into chaos has
continued. In the ensuing protests and relat-
ed violence, nine youth were shot dead by the
police in Churachandpur on August 31 and
September 1, last year. Though nine months
have flown past, their bodies are still lying in
the morgue as their mothers refuse to accept
them. The agitating tribals say that the burial
will not take place till the issue is resolved.
UNI
STIFF OPPOSITION
(Above) Police stop pro-ILPS
demonstrators as they march to
the assembly last June;
(left) Ibobi Singh whose
government passed the bills
despite these protests
Those living in
the hills say that
as they are
protected by
the constitution
which bars
non-tribals from
buying land or
settling there,
they do not
need an inner
line permit. The
government
says these bills
were designed
to protect the
people of
Manipur.

L Dikho, the former MLA of Mao constituen-
cy, told India Legal: “The parents of those
who died have taken the stand that since they
died for the cause of the tribals, their bodies
will not be buried till their demands are met.”
So why are these bills so contentious?
The first bill, Manipur People’s Protection
Bill, defines Manipuris as those whose names
appear in the 1951 Census or the National
Register of Citizens with 1951 as the cut-off
year. The tribals fear that they would be
excluded as most of these areas were inacces-
sible at that point of time and documentation
was very poor. They fear losing the land their
parents or grandparents left behind just
because of unavailability of records.
Political scientist Dr Nehginpao Kipgen,
who is an assistant professor at OP Jindal
Global University, Sonepat, said: “As
Manipur attained statehood only in 1972,
there is a possibility that many of the local
people may be listed as outsiders because of
their inability to provide the required docu-
ments. There is also an apprehension that the
definition of ‘Manipur People’ could be used
in other Acts and Bills to deny services, facil-
ities and amenities to people, especially the
tribals, in seeking government jobs, admis-
sion to schools and colleges and in medical
and engineering admissions where they have
a quota.”
CONSTITUTIONAL PROVISIONS
The second bill, the Manipur Land Revenue
and Land Reforms Bill (Seventh
Amendment), they fear is in direct violation
of Section 371C of the Indian constitution
which prohibits purchase of tribal land by
non-tribals. “If we lose our land, we will have
nothing to hold on to as we are mostly into
“The Manipur Legislative
Assembly (Hill Area
Committee) order 1972
was constituted for the
safeguard and protection
of tribals. It clearly
specified that any bill other
than a money bill must be
referred to the committee.”
—L Lam Khan Piang,
professor, JNU
“Who controls the
economy, business,
education, politics,
journalism and
everything else? It is the
Meiteis. The only thing
they have no control over
is land and now they are
eyeing that, too.”
—Lakpachui Siro,
Manipur Tribals’ Forum
“None of the three bills
are pro-people. They do
not protect the interests
of Manipuris. What we
are seeing today is
reactionary politics.
The Nagas, Kukis and
Meiteis are taking
sectarian positions.”
—Dr Malem Ningthouja,
author
36 June 15, 2016

agriculture,” said Veilou Veino, a member of
the Manipur Tribal Forum in Delhi.
The third bill, the Manipur Shops and
Establishments (Second Amendment), is
also feared as it will allow expansion of busi-
ness in tribal areas. This will bring in out-
siders to establish shops and after a few
years, they will call the shots because of their
money power. “We are not over-reacting as
these fears are real. We have seen what has
happened to the tribals of Tripura who are
today in a minority and have been completely
sidelined,” said Lakpachui Siro, spokesper-
son of the Manipur Tribals’ Forum. Added
Awangbow Newmei, president, Nagaland
People’s Front: “We strongly oppose the pass-
ing of these three bills as they violate the pro-
cedures and conduct of business rules of the
Manipur state assembly.”
It is a complicated issue. To understand it,
one needs to look at the typography, history
and geography of the state. Those who live in
the valley are mainly Meiteis who today dom-
inate its social, cultural and political life. In
the hills around the valley are the Naga and
Kuki tribals in the districts of Ukhrul,
Churachandpur, Tamenglong, Chandel and
Senapati. Though the valley constitutes only
10 percent of Manipur, it supports 60 per-
cent of its population, while the hills form 90
percent of the state. As many as 34 tribes live
in the hills overlooking the valley. Pradip
Phanjoubam, editor of Imphal Free Press
said: “There is an apprehension among the
hill people that their rights will be
encroached and that their migration from
the hills to the valley will now come under
scrutiny.”
Representatives of the Manipur Tribals
Forum have met both President Pranab
“We strongly oppose
the passing of these
three bills (in the state
assembly) as they violate
the procedures and
conduct of business
rules of the Manipur
state assembly.”
—Awangbow Newmai,
president,
Nagaland People’s Front
“As Manipur attained
statehood only in
1972, there is a
possibility that many
of the local people may
be listed as outsiders
because of their inability
to provide required
documents.”
—Dr Nehginpao Kipgen,
political scientist
“There is an
apprehension among
the hill people
that their rights will be
encroached upon and
that their migration
from the hills to the
valley will now come
under scrutiny.”
—Pradip Phanjoubam,
editor, Imphal Free Press

Mukherjee and Home Minister Rajnath
Singh to plead their case. Though the bills
have been passed by the assembly, the presi-
dent has not yet given his assent.
CONTROVERSIAL PERMIT
The formation of these three bills started
when there was a demand by the Meiteis in
the valley to introduce a permit for any out-
sider wanting to visit the state. It is called the
Inner Line Permit and is granted by the state
government. Anyone residing outside the
state who is not a native will need it to enter
Manipur. Such a permit already exists in
Nagaland, Mizoram and Arunachal Pradesh.
This was introduced after Independence to
ensure that the hill states were protected.
The idea was to prevent non-tribals from set-
tling there and disturbing the fragile demog-
raphy. Basically, the Inner Line Permit is an
official and obligatory travel document
The valley comprises mainly of Meiteis
In the hills are Naga and Kuki tribals in the districts of Ukhrul,
Churachandpur, Tamenglong, Chandel and Senapati
The valley constitutes only 10 percent of Manipur, but supports 60 percent
of its population
The hills form 90 percent of the state and has as many as 34 tribes
LAYOFTHE LAND
Manipur
Tamenglong
ASSAM
MIZORAM
MYANMAR
Churachandpur Chandel
Ukhrul
Senapati
Bishnupur
Thoubal
Imphal
Imphal
West
IN GRIEF AND RAGE
Citizens block NH-102 agitating
against the shooting of 16-year-old
Sapam Robinhood Singh; (above) a
cop attempts to clear the blockade
38 June 15, 2016
Photos: UNI

IL
issued by the government of India to allow
inward travel of an Indian citizen into a pro-
tected area for a limited period. The docu-
ment is an effort by the government to also
regulate movement to certain areas located
near the international border of India.
Pandering to this demand, these three
bills were passed. Those living in the hills say
that as they are protected by the constitution
which bars non-tribals from buying land or
settling there, they do not need an Inner Line
Permit. The Manipur government’s stand is
that these bills were designed to protect the
people of Manipur. The tribals say it is ulti-
mately designed to help the Meiteis. “Look at
who controls the economy, business, educa-
tion, politics, journalism and everything else.
It is the Meiteis. The only thing they have no
control over is land and now they are eyeing
that, too,” said Siro.
Author Dr Malem Ningthouja, who was a
fellow at the Indian Institute of Advanced
Studies, said: “None of the three bills are pro-
people as they do not protect the interests of
Manipuris. What we are seeing today is reac-
tionary politics. The Nagas, Kukis and
Meiteis are taking sectarian positions. Elite
political forces are misleading the people in
the valley and the hills while the progressive
forces have become a silent minority.”
TRIBAL IRE
The day the bills were passed, protestors,
mainly from tribal organizations from the
hills, torched five houses belonging to
Congress legislators. Among them were the
dwellings of Health and Family Welfare
Minister Phungzathang Tonsing and Lok
Sabha member from Outer Manipur Thangso
Baite. The agitation is being taken seriously as
assembly elections are due in another year.
The state government just does not know what
to do. If it scraps the bills, the Meiteis would
go against them. If they do not, the tribals will
be out to take their revenge during the polls.
Four tribal MLAs of the Naga People’s Front,
Victor Nunglung, Dr Alexander Pao, Samuel
Risom and Losii Dikho have resigned in
protest, saying that the interests of the tribals
have been compromised. “Those who have not
resigned have not had the courage to visit their
constituencies,” said Siro.
Kipgen who authored a book on the poli-
tics and ethnic conflict in Manipur, said:
“The tribal people’s short-term demand is
withdrawal of the three bills and the protec-
tion of their land through constitutional safe-
guards such as the Sixth Schedule provisions.
And the long-term demand is a separate
administration from Manipur which they
believe is the only way forward to bring last-
ing peace and development in their region.”
The Manipur Tribals’ Forum says that the
Hill Areas Committee comprising all tribal
MLAs set up under Article 371C of the con-
stitution to protect tribal interests was not
consulted. Its concurrence is mandatory for
all legislations affecting tribal areas. L Lam
Khan Piang, assistant professor of sociology
at Jawaharlal Nehru University, told India
Legal: “The Manipur Legislative Assembly
(Hill Area Committee) order 1972 was con-
stituted for the safeguard and protection of
tribals. It clearly specified that any bill other
than a money bill has to be referred to the
committee. As it was not done, the procedur-
al lapses can be challenged in court.”
Sources told India Legal that a lot of
money has poured into the state to fuel the
agitation as national political parties are
interested in exploiting the situation before
the assembly elections next year.
Clearly, this is not a crisis that is going to
end soon.
HAPPIER TIMES
Artistes perform the Pung
Cholom at a Bihu sammilani.
Both the Meiteis and the
tribals fear that their culture
is under attack

A
person assuming charge as a
judge of takes the oath to act
without fear, favor, ill will or
affection. But this solemn pledge
comes under scrutiny when the
kith and kin of a judge practice before a court
presided over by his or her relative.
The Advocates Act 1961 empowers the Bar
Council of India (BCI) to lay down standards
of professional conduct and etiquette for advo-
cates. It is on account of this that the BCI has
under Chapter II Rule 6 made it mandatory
for every advocate not to make an appearance,
act, plead or practice in any way before a court,
tribunal or authority if the sole or any member
thereof is related to him.
The rule further elaborates the list of those
persons who shall be considered as relative of
the advocate, which includes father, grandfa-
ther, son, grandson, uncle, brother, nephew,
first cousin, husband, wife, mother, daughter,
sister, aunt, niece, father-in-law, mother-in-
law, son-in-law, brother-in-law, daughter-in-
law and sister-in-law.
Lastly, the rule provides the meaning of the
term, court, for the purpose of this provision
as follows: “Court shall mean a court, bench or
tribunal in which above mentioned relation of
FOCUS/
Should the practice of lawyers appearing before courts presided over by
judges who are their relatives be discontinued? There is strong case for
banning this unhealthy trend to safeguard the credibility of the judiciary
By Navank Shekhar Mishra
“JudgeUncle”&Judgments“JudgeUncle”&Judgments
Lawyer Relatives
UdayShankar
40 June 15, 2016

the advocate is a judge, member or the presid-
ing officer.”
A PIL was filed in August 2015 by advocate
ML Sharma seeking to prohibit the kith and
kin of sitting judges of the Supreme Court and
high courts from practicing in the same court.
But a bench of the apex court headed by then
chief justice RM Lodha and comprising of jus-
tices MB Lokur and Kurian Joseph refused to
entertain the issue raised in this PIL. While
dismissing the petition, the bench observed it
couldn’t pass a judicial order on the plea as the
BCI or state bar associations are the ones
mandated to deal with any matters relating to
violation of code of conduct.
While Sharma’s effort went in vain, it must
be pointed out that the makers of the Indian
Constitution took keen interest in ensuring the
independence of the judiciary. And everyone is
agreed that the act of prohibiting relatives of
the presiding officers of courts from practicing
in the same court would only promote and
reinforce the faith in and value of the judiciary.
“UNCLE JUDGES”
In fact, the Law Commission in its 230th
report under para 1.3 has expressed its con-
cern on this issue stating that “as a matter of
practice, a person, who has worked as a dis-
trict judge or has practiced in the high court in
a state, is appointed as a judge of the high
court in the same state. Often we hear com-
plaints about ‘uncle judges’. If a person has
practiced in a high court, say, for 20-25 years,
and is appointed a judge in the same high
court, overnight change is not possible. He has
his colleague advocates—both senior and jun-
ior—as well as his kith and kin who had been
practicing with him. Even wards of some dis-
trict judges, elevated to a high court, are in
practice in the same high court. There are
occasions, when advocate judges either settle
their scores with the advocates, who have
practiced with them, or have soft corner for
them. In any case, this affects their impartiali-
ty and justice is the loser. The equity demands
that the justice shall not only be done but
should also appear to have been done. In gov-
ernment services, particularly, Class II and
upward, officers are not given posting in their
home districts except for very special reasons.
In any case, the judges, whose kith and kin are
practicing in a high court, should not be post-
ed in the same high court. This will eliminate
‘uncle judges’.”
In the case of Raja Khan vs UP Sunni
Central Wakf Board, there was an appeal in the
apex court against the judgment passed by a
division bench of the high court in August 2010.
The appellant was Raja Khan, the proprietor of
a circus company in Bahraich district of Uttar
Pradesh. He had challenged the refusal of the
UP Sunni Central Wakf Board to allot land
belonging to the board to hold an annual mela
and obtained in June two interim orders of a
single judge of the high court in Allahabad,
passed ex parte, in his favour, and against the
board. However, an apex court bench compris-
ing Justice Markandey Katju and Justice Gyan
Sudha Mishra set aside this order.
SCATHING OBSERVATIONS
The bench expressed its concern rather
scathingly: “We are sorry to say but a lot of
In 2015, ML Sharma filed
a PIL that sitting judges’
kin be barred from
practicing in that court.
Citing lack of jurisdiction,
a bench headed by
ex-CJI RM Lodha
dismissed the petition.
When Justice V R
Krishna Iyer became a
Supreme Court judge, his
son, who was a lawyer,
chose not to practice in
any court in India opting
for private employment.
Justice V Sivaraman
Nair of the Kerala High
Court had worked as a
junior of Justice Krishna
Iyer. But as soon as his
daughter and daughter-in-
law started practicing in
the Kerala High Court, he
requested the President of
India to transfer him to
another state.
Afewuprightjudges

work; hear and decide a matter in which a
member of his family, or his close relative or a
friend is concerned.”
In a conference of chief justices of all high
courts held in the Supreme Court premises in
December 1999, the chief justices unanimous-
ly resolved to adopt the “restatement of values
of judicial life (code of conduct)”. Some of the
features of the said resolution pertaining to
the present issue were:
A judge should not permit any member of
his immediate family, such as spouse, son,
daughter, son-in-law or daughter-in-law or
any other close relative, if a member of the
bar, to appear before him or even be associ-
ated in any manner with a cause to be dealt
with by him.
No member of his family, who is a member
of the bar, shall be permitted to use the resi-
dence in which the judge actually resides or
other facilities for professional work.
A judge should practice a degree of aloof-
ness consistent with the dignity of his office.
A judge shall not hear and decide a matter
in which a member of his family, a close rela-
tion or a friend is concerned.
Advocates practicing before judges who are
their relatives is a matter of serious concern
that needs to be urgently addressed. Every
practicing lawyer will affirm that partiality
inevitably creeps in when a judge hears a case
pleaded before him by kith or kin. Even if that
does not happen, allegations will surface if the
judgment favors the side represented by the
relative. This does not augur well for the cred-
ibility or the health of the judiciary.
IN THE SPOTLIGHT
Allahabad High Court
where many judges have
been accused of nepotism
IL
complaints are coming against
certain Judges of the Allahabad
High Court relating to their
integrity. Some judges have their
kith and kin practicing in the
same court, and within a few
years of starting practice the
sons or relations of the judge
become multimillionaires, have
huge bank balances, luxurious
cars and large houses and enjoy
a luxurious life. This is a far cry
from the days when the sons
and other relatives of judges
could derive no benefit from
their relationship and had to
struggle at the bar like any other lawyer.
“We do not mean to say that all lawyers
who have close relations as judges of the high
court are misusing that relationship. Some are
scrupulously taking care that no one should
lift a finger on this account. However, others
are shamelessly taking advantage of this rela-
tionship. There are other serious complaints
too against some judges of the high court.
“The Allahabad High Court really needs
some house cleaning (both Allahabad and
Lucknow bench), and we request the Hon’ble
Chief Justice of the high court to do the need-
ful, even if he has to take some strong meas-
ures, including recommending transfers of the
incorrigibles.”
JUDICIAL ACCOUNTABILITY
The Judicial Standards and Accountability
Bill, 2010, is another milestone. The bill seeks
to lay down judicial standards and provide for
accountability of judges of the Supreme Court
or of a high court. Chapter II of the bill states
that “no judge shall have close association with
individual members of the bar, particularly
with those who practice in the same court in
which he is a judge; permit any member of his
immediate family (including spouse, son,
daughter, son-in-law or daughter-in-law or
any other close relative), who is a member of
the bar, to appear before him or be associated
in any manner with a cause to be dealt with by
him; permit any member of his family, who is
a member of the bar, to use the residence in
which the judge actually resides or use other
facilities provided to the judge for professional
“Some judges
have their kith and
kin practicing in
the same court,
and within years of
starting practice
they become
multi-millionaires,
have huge bank
balances and
luxurious cars and
are enjoying a
luxurious life.”
— Observation of an
SC bench comprising
judges Markandey
Katju and Gyan
Sudha Mishra
FOCUS/ Lawyer Relatives
42 June 15, 2016

Historic Chabahar deal
India and Iran have signed a bilat-
eral pact for the development of
the strategic Chabahar Port in Iran.
The Port would open a transit route
to Afghanistan and Central Asia for
Indian goods and products, avoid-
ing the land route through Pakistan.
Delhi also wants to bring gas from
Central Asia to the Port and then
transport it to India, reports BBC
News. Prime Minister Narendra
Modi signed the $500 million
agreement in Tehran and said the
development could “alter the course
of the history of the region.” Iranian
President Hassan Rouhani has
welcomed India's investment.
“Considering all the credit lines that
are going to come from India into
the Chabahar Port, it can well turn
into a very big symbol of
cooperation between the two great
countries of Iran and India,”
Rouhani said.
Center clears
court vacancies
After clearing the decks
for the appointment of
a few judges for high courts
and four judges for the
Supreme Court, the Center
may stall further appoint-
ments till the finalization
of the memorandum of
procedure (MoP) that has
become a bone of con-
tention between the gov-
ernment and the judiciary.
The disagreement is likely
to affect pending vacancies.
The temporary truce was
the result of talks between
the CJI and the govern-
ment, which agreed to the
CJI-headed collegium’s rec-
ommendations for the
appointments despite dis-
agreement over a couple of
clauses in
the MoP.
The Enforcement Directorate (ED)
has sought information from 14
countries on properties and banking
transactions of companies allegedly
linked to former finance minister
P Chidambaram’s son Karti. The agency,
reportedly, has approached the UK,
UAE, South Africa, US, Greece, Spain,
Switzerland, France, Malaysia, Singapore,
Thailand, Sri Lanka and British Virgin Islands
seeking information on the assets and business
transactions of Advantage Strategic,
Sequoia, West Bridge and other firms
allegedly linked to Karti on the
basis of documents recovered during raids.
ED probes Karti’s
assets abroad
Haryana police chief
KP Singh has raised
many eyebrows by telling
his audience at a seminar
that the common man
had the right to kill a
person attempting to
rape, throw acid on, or
murder someone.“If
someone destroys your
house or tries to take
someone's life, the law
allows the common man
to kill the other person...
This is something the
common man doesn't
know,” he said. The
director general of police
later defended his state-
ment, saying it was an
elaboration of existing
statute.
NATIONAL BRIEFS
Male nurses, often referred
to as “brothers”, will
now be able to vie for 30
percent of the seats in
Maharashtra’s nursing
colleges, up from the earlier
10 percent.
“At our previous general
body meeting, we increased
the quota for male nurses to
30 percent in the GNM
(general nursing and mid-
wifery) course because of the
demand from males,” said
Maharashtra Nursing Council
president, Dr Ramling Mali.
Male nurses quota up in Maharashtra
“Licence to kill” sparks row

A
FTER remaining a mute
spectator to the destruc-
tion of one of Delhi’s most
important wetlands—the
Yamuna floodplains—the
Ministry of Environment
and Forests seems to have
set the stage for similar degradation of wet-
lands all over the country.
A new regulation Wetlands (Conservation
and Management) Rules 2016 notified under
the provisions of the Environment Protection
Act, 1986–is ostensibly meant to conserve
wetlands across the country, but an analysis
of the fine print shows that the result could
be the opposite. The 2016 rules will super-
sede the Wetlands (Conservation and
Management) Rules of 2010, and will take
ENVIRONMENT/ Wetlands
The Wetlands (Conservation and Management)
Rules 2016 seeks to shift the burden of
protecting them from the center to the states
and can lead to quite a messy affair
By Dinesh C Sharma
ADamp
Squib?
LAND OF BOUNTY
The pristine Wular
Lake in J&K
44 June 15, 2016

effect after a period 60 days during which
objections and suggestions can be sent.
ECOLOGICAL FUNCTIONS
Wetlands–natural or man-made lakes,
ponds, lagoons, swamps, floodplains, man-
groves, creeks, estuaries, reservoirs, marshy
lands–are ecosystems located at the interface
of land and water and host plant and animal
biodiversity. Conservation of wetlands is crit-
ical as they perform several important eco-
logical and economic functions–they support
livelihoods, are highly productive, help in the
hydrological cycle, ground water recharge,
sewage treatment, flood mitigation and
microclimate regulation, besides being hubs
of biodiversity.
Wetlands like lakes have traditionally
been an integral part of urban ecology.
According to the National Wetland Atlas,
India has over 2,00,000 wetlands greater
than 2.5 hectares and 5,50,000 wetlands less
than 2.5 hectares. The total wetlands area in
India is over 15 million hectares, accounting
for about 4.7 percent of the total geographic
area of the country.
An international agreement, Ramsar
Convention on Wetlands, is in force to con-
serve some of the great wetland sites. India
has 26 Ramsar sites. Yet, we find that wet-
lands are fast disappearing in India. They are
being encroached upon by construction,
houses and roads.
The result of such destruction has been
devastating as seen in the floods in Chennai
and Srinagar in recent years. The Wular
SHRINKING SPACE?
(Above) Srinagar city
has encroached on the
wetlands of the Dal
Lake
Photos: UNI

Lake in Kashmir—which could have acted
as a sponge to prevent the flooding of
Kashmir, is now just 2,500 hectares com-
pared to its original size of over 20,000
hectares. Bengaluru and Hyderabad too are
witnessing fast depletion in the number of
lakes and water bodies. The East Kolkata
Wetlands system is under attack from real
estate developers.
OVER TO STATES
Therefore, the objective of any regulation
should be to conserve and protect wetlands.
Under the Wetlands Rules of 2010, the pri-
mary responsibility of wetland conservation
rested with the Central Wetlands Regulatory
Authority chaired by the environment secre-
tary. Among other duties, the authority was
supposed to grant clearances for “regulated
activities” in wetlands and issue directions to
state governments for their “conservation,
preservation and wise use”. The 2016 rules do
away with the Central Regulatory Authority
altogether. Instead, every state will have a
state-level “Wetlands Authority” (the word
“regulation” has been removed) headed by
the respective chief minister or state environ-
ment minister with half-a-dozen secretaries
as members.
This means that wetlands will now be
fully controlled by state governments. This is
going to be detrimental for wetland conser-
vation, given the past record of states. “If the
objective is devolution of power to states or
decentralization, then we need to take it
down to the communities who need to be
legally empowered to protect wetlands. The
current draft rules are a sure way to ensure
destruction of all wetlands. It will mean that
the central government will not even have
powers to notify any wetland as an important
one,” said Himanshu Thakkar of South Asia
Network of Dams, Rivers and People. “The
situation arising out of the 2016 Rules is not
legally tenable since environment is a con-
current subject. Moreover, as a signatory to
Ramsar Convention, it is the obligation of the
government of India to protect and regulate
Ramsar wetland sites in the country.”
REGULATION VACUUM
Manoj Mishra of Yamuna Jiye Abhiyan said
that the 2010 rules empowered the central
government to protect notified wetlands in
collaboration with states. “The 2016 docu-
ment seeks to shift the entire burden of wet-
lands protection from the center to states
with no responsibility of oversight whatsoev-
er of the central government. In case a state
government does not form state-level
Wetlands Authority, the GOI has kept no
handle with it to ensure implementation of
the Environment Protection Act, 1986 under
which these rules have been made,” he said.
In any case, management and ownership of
wetlands in states is messy with the subject
falling under the jurisdiction of several
departments and agencies—revenue, irriga-
tion, forest, wildlife, fisheries, tourism, zilla
parishad, municipal corporations, lake
ENVIRONMENT/ Wetlands
“Today, there is no
National Wetlands
Regulatory Authority.
The one formed
post-2010 rules did
not meet till April 2012.
After its term expired,
no new authority was
constituted.”
—Himanshu Thakkar, South
Asia Network of Dams, Rivers
and People
“The 2016 document
seeks to shift the
entire burden of
wetlands protection
from the center to
states with no
responsibility of
oversight whatsoever
of the central
government.”
—Manoj Mishra, Yamuna
Jiye Abhiyan
46 June 15, 2016

Wetlands (Conservation and
Management) Rules 2016 notified under
the provisions of the Environment
Protection Act, 1986. These Rules will
replace Wetlands Rules 2010
There are several legal tools which
can be used to protect wetlands: Indian
Fisheries Act, 1857; Indian Forest Act,
1927; Wildlife (Protection) Act, 1972;
Water (Prevention and Control of
Pollution) Act, 1974; Territorial Water,
Continental Shelf, Exclusive Economic
Zone and other, Marine Zones Act, 1976;
Water (Prevention and Control of
Pollution) Act, 1977; Forest
(Conservation Act), 1980; Coastal Zone
Regulation Notification, 1991; Wildlife
(Protection) Amendment Act, 1991
In addition, states have another set of
laws concerning wetlands:
The Kerala Conservation of Paddy
Land and Wetland Act 2008: Provides
for no transfer of land, no reclamation of
paddies or wetlands
Andhra Pradesh Water, Land and
Trees Act, 2002: Provides for conserva-
tion, preservation of lakes, ponds and
tanks, permanent demarcation of area
around these wetlands and obligations
to remove encroachments
Jammu and Kashmir Wildlife
(Protection) (Amendment) Act, 2002:
Wetland reserves declared as “conserva-
tion reserves”
West Bengal Wetlands and Water
Bodies Conservation Policy (2012):
Recommends that no wetlands and
water bodies can be filled up, degraded,
drained, converted or subjected to any
kind of activity that is incompatible with
the ecological integrity of the wetlands.
Source: South Asia Network on Dams,
Rivers and People
Legalweb
FRAGILE ECOLOGY
There’s an urgent need
to protect the
Sundarbans delta in
West Bengal
WATERY MESS
A Srinagar locality during
the floods in 2015
ROWING TO
SAFETY
Destruction
caused by the
floods in
Chennai in
December 2015

India Legal 01June 2016

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