India Legal 04 December 2017

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Ivanka Trump:
Passage to India
Aadhaar: The
identity crisis
FREEDOMOFEXPRESSION
ANDTHESUPREMECOURTASTHESTORMOVERPADMAVATIRAGES,ANANALYSISOFTHEJUDICIAL
APPROACH TOISSUESLIKE FREEDOMOFSPEECHANDEXPRESSION

WAS fortunate enough, barely a week ago,
to share the stage with the soaring Vien-
nese-born philosopher-novelist Robert
Menasse who has just won the coveted
German Book Prize for his book Die
Hauptstadt (The Capital) in which the European
Union plays the main role. This was at the annu-
al Prague Writers’ Festival (PWF), rated among
the world’s top 30 literary events, for which I
had been selected by the Festival’s jury to repre-
sent India. I felt like a pygmy among the giants
in that theatre. Especially in the presence of
Menasse, a towering intellectual who has made
it his mission to rage against the virulent nation-
alism spreading like a scourge across continents.
The malady is a mutant with many manifes-
tations. Its most salient symptom is what is now
widely known as “identity politics”—the feeling
of revanchist and aggressive distinctiveness, of
exclusive we-ness against them-ness, the ready
adoption of warmongering by groups smitten by
insecurity no matter what their numbers.
We have seen this in India, in the creation of
Pakistan, in state-level chauvinism and the
preservation of antediluvian tribal superstitions
and customs, in caste warfare, in the defence of
religious personal laws, and in love jehad. We
see this today in the warlike defence of the
purity of the mythic Padmavati and the power
of mob-censorship of artist MF Husain and writ-
ers Salman Rushdie and Taslima Nasreen, in
the murderous assaults by self-styled cow protec-
tion vigilantes.
Islam is in danger, say some. Caste cohorts
are in danger. The Hindu lives in fear: A majori-
ty with a minority complex! As a blogger recent-
ly wrote to me: “The Hindu believes that fast-
multiplying minorities will soon dominate;
minorities are hard core and better organised;
they are engaged in all illegal economic activi-
ties; Islamists will kill infidels at the drop of a
hat and impose Sharia law if they come to
power; minorities should be economically disen-
franchised in order to prevent them from buying
arms; only those devoted to saving Hindus
deserve to be elected…. I do not even have a
solution to offer, I am in the problem definition
stage…I am clueless….”
Actually, this is not new. The India before
Independence was an agglomeration of over 560
often warring independent states—identity
states—and the Founding Fathers, after horren-
dous bloodshed, created a pan-Indian union in
which a larger concept of cooperative creative
federalism would claw itself out of the primor-
dial slime of petty, identity-based nationalism.
We have regressed. Under Trump, America is
regressing into isolationist, jingoistic, white
supremacist nationalism. In Europe Brexit’s
Little Englander showed the way out of suprana-
tionalism and into xenophobia, followed by the
European Union. But there’s also a fightback.
There’s Angela Merkel of Germany.
And there are philosopher kings like Men-
assse who face fierce hostility, as I saw him
encounter, at the Prague Writers’ Festival. Here
are some pearls of wisdom from Menasse, in his
own words:
The sooner Europe gets used to a future with-
out the nation-state, the better. Amnesia about
what the unification project originally meant is
causing a catastrophic lack of imagination about
where it is heading. Hegel once said: “The
human being also dies out of habit.”
He wasn’t, of course, questioning the biological
finitude of human life, but referring to the politi-
cal and social nature of the human being. If one
lives entirely in the everyday, eking out an exis-
tence “doing servile work, in which the tool has
become autonomous, in other words a machine”,
then this “dying out of habit” sets in, a “trem-
bling in the face of social death”. This trembling
is the final agitation of an historical movement
that has run aground, because its intention and
necessity, namely progress in the spirit of free-
dom, has been forgotten, and its goal, even if
provisional, is seen as threatening to the familiar
and hence repressed.
“The work of unity which we have begun, and
which we work on daily, is no schematic idea
projected blindly onto the future, no nebulous
dream. Rather, it is a reality, because it is orient-
ed towards the realities of Europe.” These words
were spoken by Walter Hallstein, the first presi-
THE WORLD VIRUS Inderjit Badhwar
Letter from the Editor
I
4 December 4, 2017

| INDIA LEGAL | December 4, 2017 5
dent of the European Commission, in a speech
in Rome in 1964. Despite drawing much atten-
tion at the time, today it has been forgotten.
So what were the “realities of Europe”? After a
30-year war (1914-1945), Europe lay in ruins.
Many could still remember the Franco-German
war, the overture to Europe’s self-destruction. So
compelling was this experience that it was possi-
ble to convince people that lasting peace should
be created in a new and entirely different way.
But how? The founders of the European integra-
tion project had recognised the aggressor that
had destroyed the continent’s infrastructure, that
had caused suffering and misery for generations,
that was responsible for the most horrendous
crimes against humanity, all the way to Ausch-
witz. The aggressor was nationalism.
The ideological self-aggrandisement of
nations, the national arrogance that inevitably
results in permanent conflict with the interests
of other nations. These “national interests”,
wrote Jean Monnet, “are nothing but the short-
sighted economic interests of national elites, the
satisfaction of which, in economic terms, in-
volves writing off the national population, and
the populations of other nations, as losses, and
in real terms turning them into victims.”
I cannot understand what should be so wrong
with a transnational community of solidarity, in
an era when globalisation, though unstoppable,
needs to be actively shaped. I cannot understand
why, after all our experiences with nationalism,
overcoming nationalism should be a bad idea. I
cannot understand why today’s leaders consis-
tently refuse to mention the ideas of their prede-
cessors. Is it forgetfulness, misunderstanding,
denial? Why, when these ideas indicate ways out
of a crisis that the leaders have otherwise failed
to deal with?
Oh, right. They want to get re-elected.
Nationally.
One thing is clear: the nation-states (must) go
down. The sooner we get used to this fact, the
better our democratic and autonomous future
will be. Otherwise there will be soot and ashes
all over again, suffering, ruins, scapegoats mur-
dered en masse, the real sinners dead too. We
will stand distraught before the smoking ruins
and murmur: “This must never happen again!”
Hegel’s death out of habit.
Thank you, Robert, my friend. India, too, lay
in ruins after the bloody Partition of 1947. We
thought we had found a way out. But we are
losing our way, as is Europe. We, too, need
your voice.
“ThesoonerEuropegets
usedtoafuturewithout
thenation-state,the
better.Amnesiaabout
whattheunification
projectoriginallymeant
iscausingacatastrophic
lackofimaginationabout
whereitisheading.
Hegeloncesaid:‘The
humanbeingalsodies
outofhabit.’”
RobertMenasse,the
winnerofGerman
BookPrizeforDie
Hauptstadt
(TheCapital)
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
wdr.de

ContentsVOLUME XI ISSUE 3
DECEMBER4,2017
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6 December 4, 2017
Films and the Supreme Court
The apex court’s refusal to stop the release of Padmavati and leaving it to the Censor Board
to take a call is in keeping with its record of upholding the freedom of speech and expression
LEAD
12
Rafale Is a Hobson’s Choice
Even as the Congress cries foul over this Indo-French aircraft deal, petty politics should not
deprive our airforce of what it badly needs to secure India’s borders
MYSPACE
24
Identity Crisis
The Aadhaar initiative is fraught with difficulties as biometric data can get mismatched and
cards deactivated, resulting in wiping out of individual identities
18
SPOTLIGHT

Jharkhand’s Justice Outreach
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs .........11, 22
International Briefs..........41
Media Watch ..................48
Satire ..............................50
Cover Design:
ANTHONY LAWRENCE
Outlaws Still
A proposed legislation by a parliamentary panel looking into transgender rights,
which covers marriage and divorce, may be put on the back-burner
38
As the US delegation to the entrepreneurial summit in Hyderabad is led by First
Daughter Ivanka Trump, India asks if she is indeed as smart a businesswoman
44American Royalty?
The Anti-Profiteering Proposal
Formed to ensure that the benefits of the GST regime reach the
consumer, the Authority has rules which run the risk of misuse
ECONOMY
34
PROFILE
Forest of Goodness
Rajasthan’s tribals can now get sustenance from flowers, nuts and
berries nurtured by them as these have been notified as tradable
AGRICULTURE
32
Law to Address Bad Debt
The Insolvency and Bankruptcy Code 2016 aims to resolve such
issues in a time-bound manner, but does it have enough teeth?
26
COLUMN
Till Reform Do Us Part
A petition challenging the Parsi Marriage and Divorce Act could
pave the way for a quicker end to discordant marriages
29
SUPREMECOURT
SOCIETY
Buffeted by the sexual misdemeanours of
leaders, ministerial blunders and Brexit
headaches, the British premier has much
to worry about her government’s stability
46May’s Pestilential
Dilemma
GLOBALTRENDS
Attempts by the state government to take legal services to the rural poor have met
with moderate success and could help reduce the pendency burden
STATES
42

8 December 4, 2017
“
RINGSIDE
“We are not seeking independence... We want to stay
with China. We want more development. Tibet has a
different culture and a different script...
The Chinese people love their own country.
We love our own country.”
—Tibetan spiritual leader the Dalai Lama, at a session organised by
the Indian Chamber of Commerce in Kolkata
“What a mistake to
demonetise our cur-
rency! BJP should
have realised that
Indian cash domi-
nates the globe: look,
even our Chhillar has
become Miss World!”
—Shashi Tharoor, on
Miss World 2017
Manushi Chhillar
“Will people ask for
heads publicly and
offer money for the
lives of those who
disagree with them,
and the state will do
nothing to prevent
it? The Home
department and the
police should move
in immediately and
offer protection…”
—Director Shyam
Benegal, on the gov-
ernment's failure to
take action against
those issuing threats
on Padmavati
“Desh ki ekta ke liye
aur bhi maarna
padta toh suraksha
bal maartey (if more
people were req-
uired to be killed
for the sake of the
country’s unity and
integrity, the securi-
ty forces would have
done it).”
—Samajwadi Party
founder Mulayam
Singh Yadav, while
defending his deci-
sion to order firing
on kar sevaks in
Ayodhya in 1990
“Same is the case
with PM Narendra
Modi. Every day, he
comes up with a new
slogan to keep the
public engaged and
gives them no time
to think.”
—CPI-M general sec-
retary Sitaram Yech-
ury, comparing PM
Modi' style of func-
tioning with that of
Bollywood director
Manmohan Desai
“Surely, we can
walk the fine bal-
ance between
privacy and open-
ness on one hand
and national securi-
ty on the other.”
—PM Modi on the
fight between privacy
and digitisation, at a
global conference on
cyberspace in Delhi
“I would like to
remind Mr Mallya,
yes I am a political
victim, but I never
misused my position
and have full faith in
my country’s judicial
system... I never ran
away with anyone's
money from the
country like him.”
—Robert Vadra,
reacting to Vijay
Mallya, who com-
pared himself with
Vadra, saying he too
is a victim of politi-
cal vendetta
“A mother deserves
the highest respect.
When you talk about
salary, I don’t think
it’s just about cash,
but it’s the love and
respect you give to
someone.... It is cer-
tainly that one profes-
sion which deserves
the highest salary....”
—Manushi Chhillar in
her final round before
being declared the win-
ner of the Miss World
2017 contest at Sanya
City Arena in China

The fallout of the incendiary
row over Sanjay Leela
Bhansali’s Padmavati has
caused embarrassment to
the Indian government. The
high-profile Global Entre-
preneurship Summit, to be
held in Hyderabad, is being
jointly hosted by India and
the US. It is themed on
women entrepreneurs, and
features the
leader of the US
delegation,
President
Trump’s daughter
Ivanka, and her
co-host, Prime
Minister Naren-
dra Modi. Thanks
to the threats against the
film’s stars, actor Deepika
Padukone, who featured in
the summit’s publicity blitz,
has pulled out. The
Indian hosts have
hastily replaced her
with tennis star Sania
Mirza but the reason
for Padukone’s no-
show—threats to her
life over depicting a
fictional character—
is certain to see some red
faces, more so since the
summit’s theme is “Women
First, Prosperity for All”.
An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
DYNASTIC
CAROUSEL
South Block foreign policy
mandarins have rightly been
tom-tomming the despatch
of the first consignment of
Indian wheat for Afghanistan
through the Chabahar port
to mark the suc-
cessful wrapping
up of the India-
Iran-Afghanistan
“Transport and
Transit” covenant.
It was signed in
May 2016, fol-
lowed by the
opening of the
India-Afghanistan
air freight corri-
dor. Both were considered
major steps forward for Pri-
me Minister Narendra Modi’s
regional diplomatic initiatives
to outsmart Pakistan. But
now Modi’s advisers are
cautioning against compla-
cency in taking Iran’s role—
always a hard bargainer—for
granted. Only recently,
Pakistan’s naval ships
Dehdasht and Rahnavard
were welcomed at Iran’s
strategic Bandar Abbas port.
The next step, analysts pre-
dict, will be joint naval exer-
cises between the two
nations. The one lesson
South Block needs never to
forget is to doubt Islama-
bad’s diplomatic capabilities
which often finesse even
the most brilliant move by
New Delhi.
The recent videos by the IS
encouraging their followers in
India to conduct lone wolf
attacks on specified targets,
recruitment videos featuring
Indian citizens (a doctor
speaking from a medical
facility in Raqqa was the lat-
est) and now the black flags
of the Islamic State replacing
Pakistan flags in funeral pro-
cessions and protests in
Kashmir have got the Indian
security establishment wor-
ried. A series of high-level
meetings chaired by NSA Ajit
Doval (above right) and
Home Minister Rajnath Singh
(left) has led to the formation
of a special section that will
deal exclusively with the
global terror threat. The head
of the new wing is yet to be
selected but some key intelli-
gence officers dealing with
external terror have already
moved to the new section.
Their brief is to develop a
counter strategy to deal
with radicalisation and the
influence of global terror
networks in India.
NAVAL CHECKMATE
THE NO-SHOW
Poll-bound Himachal Pradesh
with 68 seats up for grabs, as
against Gujarat’s 182, is com-
peting fiercely for the national
spotlight. The main rivals have
profiles and patrons which
reflect the changing political
equations in New Delhi. The
BJP’s candidate Prem Kumar
Dhumal, a feisty 73-year-old
two-time CM, was not the first
choice of either Prime Minister
Narendra Modi or BJP supre-
mo Amit Shah. They were lean-
ing towards the RSS view that
Dhumal had been playing
dynastic politics by promoting
his son, the flamboyant, short-
lived BCCI chief Anurag
Thakur. Their original candidate
was Health Minister JP Nadda
who is close to both Modi and
Shah, but in this case, it
appears that Arun Jaitley who
is close to Thakur, prevailed in
promoting his father’s cause.
What could hurt the BJP is that,
following Dhumal’s choice, two
powerful party stalwarts,
Nadda and former CM Shanta
Kumar, are sulking. But then,
Virbhadra Singh, who is still
popular, was not the initial
choice of the Congress high
command either, largely
because of his age and corrup-
tion charges. But in this case,
Captain Amarinder Singh, who
is riding high in the Congress
ever since he smashed the
opposition in Punjab, was able
to prevail because of family
ties. The captain’s grandson,
Angad, is married to
Virbhadra’s daughter, Aparajita.
COUNTERING IS

After the centre admitted that it could not
come up with a system to block the
online game Blue Whale, the Supreme Court
disposed of the matter. But before that, it
lambasted the government, saying it can’t
run away from responsibility. The Court
asked all online portals to remove such
games with immediate effect in case they
have been uploaded. All state chief secre-
taries were asked to get cracking on spread-
ing awareness about Blue Whale.
A CJI-headed bench observed that teach-
ers should also come forward to assist in
curbing the menace. While asking the centre
to run awareness programmes, the Court
emphasised that they should highlight the
value of life per se, instead of referring to
Blue Whale.
The centre said that despite all its efforts,
a technological solution was yet to be found.
Also the contents of the game couldn’t be
identified, intercepted and analysed.
The Court was hearing a petition by advo-
cate Senha Kalita seeking to ban the game
and generate awareness. It asked Kalita to
suggest solutions to the centre, if any.
While refusing to grant
bail to a petitioner for
carrying 600 bottles of the
popular cough syrup
Phensedyl, the Calcutta High
Court ruled that it can be
considered a narcotic sub-
stance under the Narcotic
Drugs and Psychotropic
Substances Act (NDPS Act).
Phensedyl contains codeine
phospate which is prohibited
under the NDPS Act. It caus-
es addiction and is thus quite
often used as a substitute for
alcohol. The petitioner argued
that Phensedyl was already
covered by the Drugs and
Cosmetics Act and does not
come under the NDPS Act.
But the High Court said that
he was illicitly carrying a
huge quantity of Phensedyl
bottles and the Drugs and
Cosmetics Act does not bar
the provisions of the NDPS
Act from operating. It also
cited Section 80 of the NDPS
Act and referred to a similar
verdict of the Delhi HC.
Courts
10 December 4, 2017
Phensedyl is a
narcotic, says
Calcutta HC
The apex court was all
praise for the Ministry of
Law and Justice’s coordina-
tion efforts in installing
CCTV cameras on court and
tribunal premises. This was
after the centre presented a
progress report on putting
up CCTVs in district courts
and tribunals. As per the
report, the Punjab and Har-
yana High Court model was
being followed as it was the
best and states too could
adhere to it. The report will
soon be up on the ministry’s
website. The matter was list-
ed for December 11. In the
last hearing, the Court had
observed that no privacy
issue was involved in ins-
talling CCTV cameras and
noted that it was a must for
public interest, discipline and
security. It asked the centre
to act swiftly and come up
with a progress report.
Centre presents report to SC on CCTVs
—Compiled by Prabir Biswas
PIL movers
need protection,
says Delhi HC
Centre must
generate
awareness on
Blue Whale
Taking serious cognisance of
vicious attacks on two per-
sons who had earlier filed PILs
against rampant illegal con-
structions and encroachments
in the capital, the Delhi High
Court pointed out that “the life
of a litigant can’t be imperiled”
for drawing the court’s attention
to a public cause. The Court
asked the Delhi police to launch
a probe with immediate effect
into the assaults, “bring the cul-
prits to book” and protect the
victims from any physical harm.
The petitioners had rushed
to the Court for protection and
the attacks were brutal enough
to draw the attention of the
Court. One of them was an eld-
erly woman who had com-
plained against illegal encroach-
ment on forest land in south
Delhi. She had come to the
court with severe injuries on her
face and was unable to walk
properly. The other person, who
had reported illegal construc-
tions in several parts of the cap-
ital, came to the Court with a
bandaged head.

Briefs
After the Supreme Court
struck down instant triple
talaq, calling it unconstitutional,
the central government is now
contemplating introducing a rele-
vant bill in the upcoming winter
session of parliament. The gov-
ernment is planning to amend
the existing laws, making instant
triple talaq an offence. It has con-
stituted a ministerial committee
to frame a law. It is being said
that the government is planning
such an amendment because,
even after the apex court order, a
number of cases of instant triple
talaq were reported. In one
instance, an AMU professor had
divorced his wife through a
WhatsApp message, after which
the wife approached the police.
Centre to introduce
bill against triple talaq
—Compiled by Lilly Paul
The Patiala High Court rejected the
Central Bureau of Investigation’s plea to
conduct lie-detector tests on the nine stu-
dents of Jawaharlal Nehru University sus-
pected to be involved in the disappearance
of Najeeb Ahmed. The agency had sought
summons against the students to conduct
polygraph tests. The Court dismissed the
plea on the contention of the students’
lawyer that a polygraph test cannot be
undertaken if the individual does not con-
sent to it. The Court considered the
National Human Rights Commission
guidelines that a lie-detector test is not
authorised by law and should be regarded
as illegal and unconstitutional if undertak-
en under coercive circumstances.
At a time when the national law
universities in the country are
witnessing a turmoil, a book—
University Law in India—has been
launched which talks about legal
aspects of universities and other
higher institutions.
Supreme Court judge Justice DY
Chandrachud while speaking at the
launch of the book in Delhi, referred
to the current problems faced by uni-
versities, such as sexual abuse, drugs,
alcohol, as well as the issue of fake
universities and degrees. He said that
the problems are universal to all soci-
eties across the world and India is
no exception.
The book is authored by SS Upa-
dhyay—legal adviser to the governor
of Uttar Pradesh, Ram Naik—and his
daughter Sonal Upadhyay. The event,
presided over by Naik—the chancel-
lor of the state’s universities—was
also attended by senior advocate of
the Supreme Court Pradeep Rai,
among other distinguished guests.
Najeeb Ahmed case: Court rejects
CBI plea for polygraph test
JusticeChandrachudexpressesconcernoverproblemsinvarsities
20 judges
from 12 HCs
brainstorm
on GST
Twenty judges from 12 high courts
brainstormed with top government
officials and experts to identify the grey
areas of the Goods and Services Tax
(GST) at a judicial conference at the
National Judicial Academy in Bhopal.
The judges were briefed on the new tax
regime by top officials from the Central
Board of Excise and Customs. With
related litigation surfacing in various
courts, the conference also discussed
topics such as potential areas of con-
flict and litigation under GST and
comparative analysis of concepts.
During the three-day conference,
judges from the Allahabad, Calcutta,
Delhi, Karnataka, Madhya Pradesh,
Madras, Andhra Pradesh, Gujarat,
Jammu and Kashmir, Bombay and
Kerala High Courts interacted with
nine resource persons on GST.
Ashok Kumar, the bus
conductor initially
accused of murdering
Pradyuman Thakur, a Class
II student of Ryan Inter-
national School, was granted
bail by a Gurugram district
court on a bail bond of
`50,000. He was given the
benefit of doubt as there was
a lot of difference between
the findings of the CBI and
the Gurugram police. He
was granted bail under
Article 21 of the Consti-
tution. The Gurugram police
had earlier arrested Kumar,
claiming that he tried to
molest the seven-year-old
and killed him when he
resisted. Following investi-
gations, the CBI arrested a
Class XI student of the same
school for the murder.
Ryan murder case: Bus conductor Ashok Kumar gets bail

Lead/ Courts/ Banning of Films
12 December 4, 2017
S the release of Padmavati
draws near, vociferous
protests from state gov-
ernments and fringe ele-
ments have been the
order of the day. This is
not a new phenomenon. But what needs
to be hailed is that increasingly, courts
are refusing to stop a film’s release sim-
ply because it hurts the sentiments of a
particular community.
Going simply by precedent, there are
valid grounds why the Supreme Court
may consider permitting the release of
this film, too. It told two public interest
petitioners who sought its intervention
last week to stop the film’s release that
their pleas were premature as the
Central Board of Film Certification
(CBFC), a statutory body, is yet to
decide its certification.
The film producers, who expected
the Board to certify, had first set
December 1 as the date of its release.
They, however, deferred it “voluntarily”
in view of the protests and threats from
a section of the Rajput community who
alleged that the film defames the
Rajput queen, Padmini. The film is
based on fiction authored by 16th cen-
tury Sufi poet Malik Muhammed Jayasi.
The protesters claim that the film
shows her consorting with the invader
Alauddin Khilji.
The Cinematograph Act, 1952, lays
down that a film shall not be certified if
any part of it is against the interest of
the sovereignty and integrity of India,
the security of the state, friendly rela-
tions with foreign states, public order,
decency or involves defamation or con-
tempt of court or is likely to incite com-
mission of any offence.
Under Section 5B(2) of the Act, the
centre has issued certain guidelines. A
film, these guidelines say, is judged in its
entirety from the point of view of its
overall impact and is examined in the
light of the period depicted in the film
and the contemporary standards of the
country and the people to whom the
film relates, provided that the film does
not deprave the morality of the audi-
ence. Seen in the light of these guide-
lines, the protesters have clearly jumped
the gun without waiting for the CBFC to
complete its review of the film.
The petitioner, Siddharajsinh
Mahavirsinh Chudasama and 11 others
—all from Gujarat—had submitted to
the Supreme Court that Rani Padma-
vati, a medieval-era queen of Chittor-
Dousing the
AsprotestsrageoverthereleaseofPadmavati,theSupremeCourthasdeclinedtointervene,
leavingittotheCensorBoardtotakeadecision.Therearenumerousotherinstanceswhen
courtshaverefusedtocurbfreedomofspeechandexpression
By Venkatasubramanian
A
UNI

garh, is worshipped by Rajputs as Sati
Rani Padmavati in numerous temples
of Rajasthan. The most prominent
temple is situated inside the palace of
Chittorgarh where thousands of Hindus
pay obeisance.
C
hudasama and others asked the
Court to consider whether in the
garb of artistic liberty, historical
facts, especially with reference to histor-
ical legends, can be distorted so as to
cater to the prurient sense of a certain
section of the audience. They alleged
that the film shows Padmavati doing a
“Ghoomar” dance, which is contrary to
how this dance is traditionally per-
formed. “The Queens never used to do
Ghoomar themselves and the thumkas
(hip movement) and the revelation of
skin by Padukone, in her portrayal of
Padmavati, has hurt the sentiments of
the Rajput community,” the petition
said. They further alleged that the film
has love scenes between Padmavati and
Alauddin Khilji, who was the second
and the most powerful ruler of the
Khilji dynasty of the Delhi Sultanate
and who marched to Chittorgarh to have
a glimpse of her. Legend has it that
Padmavati and other women of
Chittorgarh committed sati before
Khilji and his forces entered the fort in
order to avoid being victims of their lust
after their menfolk, led by the king, lost
the battle.
The petitioners contended that the
violent protests against the film’s release
are indicative of the grievances of mem-
bers of the Hindu community, which
also need effective redressal. “Though
the script is not in public domain, but
once the movie is released and if there is
anything which is against the traditional
portrayal of Rani Padmavati, then
irreparable loss would be caused and the
same might even escalate to a law and
order problem,” the petitioners cau-
tioned the Supreme Court. They, there-
fore, sought the Court’s directions to
constitute a committee of eminent his-
torians and prominent citizens to pre-
screen the movie for them, so that they
could check the veracity of the script.
T
hus, without seeing the movie or
verifying its contents, the peti-
tioners alleged that in the garb of
creativity, the producers of the film had
taken undue liberty and completely
changed historical facts. “It is submitted
that the portrayal of historical legends
have to be done in a historically accurate
manner and creativity cannot be used as
a pretext to malign or sully their image,”
they contended.
However, the Supreme Court bench
of Chief Justice Dipak Misra and
Justices AM Khanwilkar and DY
Chandrachud dismissed the petition on
November 10, on the ground that the
Censor Board was yet to take its deci-
sion in “an independent manner”.
On November 20, the same bench
had to deal with a similar petition, this
time filed by an advocate, Manohar Lal
Sharma, against Padmavati. The bench
reiterated its view that its interference
Flames
FIRES OF PROTEST: (Left) Members of
Karni Sena burn an effigy of Sanjay Leela
Bhansali in Sirsa, seeking a ban on his
upcoming film Padmavati
“Afilm,oradramaoranovelor
abookisacreationofart.An
artisthashisownfreedom
toexpresshimselfinamanner
whichisnotprohibitedin
lawandsuchprohibitions
arenotreadbyimplication
tocrucifytherightsofan
expressivemind.”
—SupremeCourt
Anil Shakya

14 December 4, 2017
would be tantamount to pre-judging the
matter, as the film has not yet received a
certificate from the CBFC. The bench,
however, thought it apt to strike off
what Sharma had stated in paragraph 17
to 22 in entirety and made it clear that
what was struck off should not be used
otherwise. “Pleadings in a court are not
meant to create any kind of disharmony
in the society which believes in the con-
ceptual unity among diversity,” the
bench held.
The bench told Sharma that from
Bandit Queen to An Insignificant Man,
the Supreme Court has always rejected
pleas for bans on movies. Although the
bench did not go into the merits of
Sharma’s plea that even the promos of a
film cannot be released without the
film’s certification, the bench found that
it was not competent to intervene when
a statutory body was about to exercise
its duty in the matter.
The bench told Sharma that the
Court’s decision in Nachiketa Walhekar
v CBFC, rendered on November 16, was
instructive. In this case, Walhekar’s peti-
tion seeking a stay on the nation-wide
release of the film, An Insignificant
Man, was heard by the bench on Nov-
ember 17. The documentary, which
shows the early days of the Aam Aadmi
Party, which is in power in Delhi, was
sought to be stayed because it contains a
video clip pertaining to the petitioner.
Walhekar, an accused in a case, allegedly
threw ink on Delhi Chief Minister
Arvind Kejriwal. Walhekar claimed that
the video clip was originally shown by
the media, but after a complaint was
filed at Patiala House Courts, it was not
shown and therefore the film, too,
should not have been granted a certifi-
cate by the CBFC.
T
he bench held that freedom of
speech and expression are sacro-
sanct and it should not be ordi-
narily interfered with. The bench made
it clear that it would restrain itself in
not entertaining the writ petition or
granting an injunction against the
movie’s release on November 17 when
the CBFC had already granted it the cer-
tificate.
The bench held: “A film, or a drama
or a novel or a book is a creation of art.
An artist has his own freedom to express
himself in a manner which is not pro-
hibited in law and such prohibitions are
not read by implication to crucify the
rights of an expressive mind.”
It added: “A thought-provoking film
WOUNDED
FEELINGS
(Left) Karni Sena
founder Lokendra
Singh Kalvi
addresses a
press conference
in New Delhi;
the medieval-era
queen of
Chittorgarh
(below) is
worshipped all
over Rajasthan
Anil Shakya
chittorgarh.com

should never mean that it has to be
didactic or in any way puritanical. It can
be expressive and provoking the con-
scious or the sub-conscious thoughts of
the viewer. If there has to be any limita-
tion, that has to be as per the prescrip-
tion in law.”
Dismissing Walhekar’s petition, it
held: “The courts are to be extremely
slow to pass any kind of restraint order
in such a situation and should allow the
respect that a creative man enjoys in
writing a drama, a play, a playlet, a book
on philosophy, or any kind of thought
that is expressed on the celluloid or the-
atre, etc.”
The Bombay High Court, too, has
faced a similar petition, this time
against the release of the film,
Dashkriya, which means
posthumous rites and
rituals. The petition was
filed based on the official
trailer of the film and
was dismissed by the
Court.
The petition, filed by
one Sameer Shankarrao
Shukla and others,
alleged that the screen-
play of the film offends
the sentiments of the
Brahmin and barber
communities. The filmmakers, it said,
have no right to introduce something in
the film which is not present in the
novel on which it is allegedly based.
Thus, it said, the film is a distorted ver-
sion of the novel. The novel is not a his-
torical document, but an imaginative
story for which it cannot be rendered
the status of gospel, the petitioners fur-
ther contended.
The film is based on Baba Bhand’s
novel, Dashkriya, published in 1994,
and its theme is against the commercial-
isation of such rites. Justices Mangesh S
Patil and SS Shinde of the Aurangabad
bench of the High Court, in their judg-
ment delivered on November 17, refused
to intervene as the CBFC had already
given its certificate for the film.
The bench concluded that the con-
tention of the counsel appearing for the
petitioners that what is conveyed in the
film is not traceable in the book was the
subject matter in the exclusive domain
of the CBFC when permission was
granted to release the film. Besides, the
question of violation of one’s right to
practise religion does not arise as there
is no ban on the performance of such
rituals, the bench reasoned. The High
Court relied on the Supreme Court’s
recent order in the Nachiketa Walhekar
case to further buttress its decision.
T
hus, in recent times, the judiciary
has avoided interference with the
artistic freedom of a filmmaker,
citing the responsibilities of the CBFC in
permitting or refusing such permission
to release a film. The judiciary also
appears to be of the view that once the
CBFC takes a decision on certification,
there is no scope for the judiciary to step
in and review the decision as, unlike the
CBFC, it is not competent to decide on
the merits of certification.
In S Rangarajan v Jagjivan Ram, the
Supreme Court held that its commit-
ment to freedom of expression demands
that it cannot be suppressed unless the
situations created by allowing the free-
dom are pressing and the com-
AbenchofChief
JusticeDipakMisra
(left)andJustices
AMKhanwilkar
andDYChandrachud
dismissed
twopetitionsin
Novembertostop
thereleaseof
Padmavati.
HOPE LIES AHEAD: The decision to screen
Padmavati with or without cuts now lies with
the CBFC and its chief, Prasoon Joshi
(above); Anand Patwardhan earlier won a
court battle with Doordarshan
countercurrents.org

16 December 4, 2017
munity’s interest is endan-
gered. In Rangarajan, it was
argued that certain groups in
Tamil Nadu had threatened
violence if the film, Ore Oru
Gramathile, went ahead—a
classic case of the heckler’s
veto. Rejecting it, the Court
asked what good is freedom
of expression if the State
does not take care to protect
it. Freedom of expression
cannot be suppressed on
account of threat of demonstration and
processions or threats of violence… that
would be tantamount to negation of
the rule of law and a surrender to
blackmail and intimidation, it said.
The Court’s answer, thus, was to require
the State to maintain law and order,
and ensure that there is a safe space for
freedom of expression without con-
comitant violence.
In D-G, Doordarshan v Anand
Patwardhan, the latter’s film, Father,
Son and Holy War, about sexual vio-
lence and communalism in India, was
given an A certificate. Doordarshan
refused to telecast it. It was argued that
the film, if telecast on Doordarshan,
would be viewed by illiterate and aver-
age persons who would be affected by its
screening. The Supreme Court rejected
this argument saying that the standard
must be that of a “reasonable person”
with an “average, healthy and common
sense point of view”. The Court found
that, as a matter of fact, the film was
neither obscene nor was its portrayal
of social evils a threat to public order.
It directed Doordarshan to screen
it, because it is a State institution and
therefore would be covered by Article
19(1)(a).
I
n Srishti School of Art, Design and
Technology v The Chairperson,
Central Board of Film
Certification, the Delhi High Court dis-
approved of the Board’s cuts on visuals
pertaining to the destruction of the
Babri Masjid in 1992 on the ground
I
n copyright law, a derivative work is a
creation that includes major copyright-
protected elements of an original, pre-
viously created first work. Derivative work
may be scholarly or interpretive as in
biographies and essays or imaginative
as in historical fiction, mythological
fiction and fanfiction.
The relatively new fanfiction genre is a
genre of fiction, more specifically deriva-
tive fiction, wherein a fan of a particular
book, film, television show or historical or
mythological story writes missing scenes,
back stories, prequels and sequels of
their favourite stories, or simply places
their favourite characters in an alternative
universe and creates a different storyline
altogether. By definition, fanfiction is of
variable quality. Fanfiction began as an
underground activity in the west during
the 1960s via the Star Trek fandom, but
has been legitimised ever since through
various laws and litigation. A famous
example of contemporary fanfiction is
EL James’ Fifty Shades of Gray. The
writer Jane Austen’s works, too, have
been fanfictionalised. At present, there
are a whopping 900 such spin-offs in
published form. Pride and Prejudice
accounts for the majority of published
Austen-inspired books.
In India, the tradition of writing histori-
cal fiction is very old. Some of the most
famous writers include KM Munshi in
Gujarati literature and Saradindu
Bandopadhyay in Bengali. The phenom-
enon of fanfiction is again, however,
more modern. Notable recent works
include Amish Tripathi’s Shiva trilogy
and television serial Shree Krishna,
both of which are wildly imaginative,
uncontroversial fanfiction using the gods
as characters.
The Berne Convention for the
Protection of Literary and Artistic
Works, an international copyright treaty,
stipulates that derivative works shall be
protected although it does not use this
term. An extensive definition of “deriva-
tive works” is, however, given by the
United States Copyright Act. Under it,
all creative works are protected by the
fair use doctrine.
Not surprisingly, the legitimisation of fan-
fiction as a literary genre has come about
only after a few run-ins with the law. And
some works have either been killed or edit-
ed first and then put into the public domain.
As Darren Hudson Hicks writes in The
Aesthetics and Ethics of Copying, fanfic-
tion continues to pose a confounding legal
and business dilemma. Here are a few of
the more famous lawsuits.
The Sherlock lawsuit: After creat-
ing a critically-acclaimed annotated ver-
sion of Arthur Conan Doyle's Sherlock
Holmes stories, author and editor Leslie
Klinger wanted to produce an anthology
of new Holmes stories written by modern
Fanfictionandplagiarism

that those scenes promoted communal
and anti-national attitudes. The High
Court held that recalling the memory
of a historical event cannot be a
ground for excision, even if such a
memory is imperfect or has the poten-
tial to revive tensions in society.
Freedom to speak
involves the permission
to narrate, the High
Court held, adding that
interpretations and con-
structions of the past
may or may not be
invoked for present
political ends, but it is
not for the province of
the court to advance its
own competing inter-
pretation, and impose it
upon everyone else.
In 2004, in FA Picture International
v CBFC, the Bombay High Court came
to a similar conclusion, striking down
the Board’s refusal to certify a film
about the Gujarat riots because it was a
scar on national sensitivity and the film
would aggravate the situation. The
Court held that both the Board and the
appellate tribunal had misconceived the
scope of their powers.
“Films which deal with controversial
issues necessarily have to portray what
is controversial. A film which is set in
the backdrop of communal violence
cannot be expected to eschew a portray-
al of violence,” the Court held.
It agreed that while exercising writ
jurisdiction, it would ordinarily not
substitute its view for the view of an
expert. But it added that the founda-
tion for its exercise must rest on its
commitment as an expounder of consti-
tutional principle. Where the decision
of the CBFC entrenches upon the fun-
damental right to freedom of speech
and expression, it is not merely the
function but the duty and responsibility
of the court to intervene, the High
Court held. It directed the Board to
issue an appropriate censor certificate
for the film, Chand Bujh Gaya.
The CBFC’s decision on Padmavati,
therefore, has profound constitutional
significance.
authors. But in 2013, Klinger received a
letter from Conan Doyle Estate Ltd
demanding that he pay copyright licens-
ing fees if he wanted to release the
book. Klinger sued, and in June 2014,
US Circuit Judge Richard Posner
agreed, saying he could not find "any
basis in statute or case law for extending
a copyright beyond its expiration". He
even called the estate's demands for
licensing fees on the expired works from
authors like Klinger a "disreputable busi-
ness practice" and "a form of extortion."
The judge awarded Klinger the attorneys'
fees he spent fighting the case. The
estate later appealed to the US Supreme
Court, but the justices dismissed the
appeal in November 2014.
The Harry Potter Lexicon: The
Harry Potter Lexicon was launched in
2000 as a comprehensive online en-
cyclopaedia for JK Rowling's massively
popular fictional universe. It was started
by a school librarian and Potter fan
named Steve Vander Ark. Rowling initially
praised it. But when a Michigan book
publisher called RDR Books announced
plans to turn the Lexicon into a published
book and sell it for profit, Warner Bros.
and Rowling filed a suit in October 2007,
claiming the planned book infringed on
their copyrights. However, in 2009, RDR
was given the green light to release a
truncated version that included less of
Rowling's creative content.
Axanar: In January 2017, just weeks
after a US district court judge rejected
the claims of fair use from the producers
of the Star Trek fan film Axanar,
Paramount Pictures, producers of the
original series, and Axanar Productions
announced a settlement by which “sub-
stantial changes will be made to Axanar
to resolve this litigation” and future pro-
ductions from the company will adhere
to the new fan film guidelines put forth
by Paramount as a result of this case.
Axanar is a prequel of Star Trek.
60 Years Later: The reclusive
author of the iconic Catcher in the Rye,
JD Salinger, has not published any work
in nearly half-a-century. However, when
Salinger became aware of a planned
novel , 60 Years Later: Coming Through
the Rye, by one Fredrik Colting, a story
that followed a 90-year-old fictionalised
Salinger attempting to “kill” a 76-year-old
version of Holden Caulfield, Catcher’s
angsty teen protagonist, in 2009, he filed
a court case. It led to US district judge
Deborah A Batts issuing a preliminary
injunction blocking the publication of the
book. The ruling was later overturned by
the Second Circuit Court for “lack of
proof of irreparable harm”, but the two
sides eventually agreed to a permanent
injunction barring the book from ever
being published in the United States.
Thus it is seen that, while the concep-
tual distinctions between various genres
of creative work are unambiguous, a
piece must have enough original materi-
al to merit release or publication.
—Compiled by Sucheta Dasgupta
STRONG LEGAL PRECEDENTS
(From far left) The courts have earlier
rejected pleas to ban Ore Oru Gramathile,
An Insignificant Man, Dashkriya and
Bandit Queen

Spotlight/ Aadhaar
18 December 4, 2017
N the US, some witness protection
programmes help people change
their identities so completely that
they can be said to have “fallen off
the face of the earth”. Their past
and all documentation can be sys-
tematically erased so that technically,
the person ceases to exist. A new identi-
ty is then created. This is a complicated
process and involves several US govern-
ment agencies and is meant to keep the
person safe from any dangerous person
he may have been a witness against.
Something similar can happen in
India, too, with Aadhaar cards—con-
taining vital biometric information—
being linked to many services. These
proposed linkages include bank ac-
counts (credit and debit cards and gen-
eral transactions), PAN cards (the entire
taxation process), subsidy delivery sys-
tems, insurance policies (including med-
ical insurance), phone connections, and
so on. There will soon be a time when
Aadhaar will also be linked to passports.
Deactivation would not only jeopardise
travel but would mean losing one’s iden-
tity and life grinding to a halt.
And that is what happened recently
when the Unique Identification Autho-
rity of India (UIDAI) deactivated 8.1
million Aadhaar cards for mismatches
in biometric details. With no specific le-
gal system in place to check it, deactiva-
tion means losing out on many services.
CARDS DEACTIVATED
Dr CPN Thakur, 73, learnt this the hard
way recently when he tried to get a Rel-
iance Jio Wi-Fi connection. He was as-
ked to verify his Aadhaar biometrics,
but found to his horror that his finger-
prints did not match. His is among the
8.1 million deactivated cards. With age,
his skin had lost its elasticity and hence
his fingerprint patterns did not match
with what was recorded. He was refused
the service.
Part of the problem is inherent flaws
I
An Identity Crisis
Thisinitiativeofthegovernmentisfraughtwithproblemsas
biometricdatacangetmismatchedandcardsdeactivated,
bringinglifetoacompletestandstill
By Sujit Bhar
Anil Shakya

in the Aadhaar (Targeted Delivery of
Financial and Other Subsidies, Benefits
and Services) Act, 2016, which allows
this to happen. Thakur moved the Sup-
reme Court against the UIDAI, arguing
that Aadhaar (Enrolment and Update)
Regulations No. 6 (U/s 54 of the Act)
provide for “enrolment of residents with
biometric exceptions”. (See box on
Regulation 6) The petitioner also cited
Section 31 (1) of the Act on upgradation
of biometrics, which states: “In case any
demographic information of an Aadhaar
number holder is found incorrect or
changes subsequently, the Aadhaar
number holder shall request to alter
such demographic information in his
record in the Central Identities Data
Repository in such manner as may be
specified by regulations.” The petitioner
(India Legal is in possession of a copy of
his petition) put in a request on May 29,
2017, for updating his biometric infor-
mation. That was rejected “due to poor
quality of fingerprints”. The case is
pending in the apex court.
There have also been tragic instances
where lack of Aadhaar cards have dep-
rived people of government benefits and
led to deaths. Recently, two persons died
as they could not avail of their rations
because they could not travel to the fair
price shop to collect it by giving their
fingerprints. This has led to criticism of
the Aadhaar scheme. The very purpose
of this Act was to benefit the poor. But
with the technology that the entire
process is riding on being found faulty,
it is backfiring against the government’s
poverty alleviation programme.
India Legal also has inside informa-
tion that some top sitting judges and
many lawyers also faced problems when
their fingerprints did not match the
Aadhaar database when they tried to
access certain services. If this is the case
at the top levels, imagine the plight of
the poor, said a senior judicial officer.
FINGERPRINT ISSUE
But why do fingerprints not match? Do
they really change with time?
Debasis Ghosh, director-in-charge,
Finger Print Bureau, CID, West Bengal,
told India Legal: “Fingerprints develop
by the time a child is six months old.
They stay the same till death. Yes, the
skin elasticity of old people does change
and certain characteristics of the finger-
prints do change, but not all. The sci-
ence of fingerprints deals with several
characteristics of fingerprints and
matching them.” (See box on fingerprint
characteristics)
Ghosh said the lack of elasticity hap-
pens in very few people. “At the forensic
and fingerprint department, we are
trained to assume certain patterns. We
have a Supreme Court order which
allows us a certain degree of guesswork
in dealing with smudged or faded
Aadhaar (Enrolment and Update)
Regulation No. 6, which deals
with enrolment of residents with
biometric exceptions, says:
For residents who are unable to
provide fingerprints, owing to reasons
such as injury deformities, amputation
of the fingers/hands or any other rele-
vant reason, only iris scans of such
residents will be collected.
For residents who are unable to
provide biometric information contem-
plated by these regulations, the
authorities shall provide for handling
of such exceptions in the enrolment
and update software, and such enrol-
ment shall be varied out as for the
procedure as may be specified by the
authority for this purpose.
RegulationNo.6
Almost 8.1 million Aadhaar numbers
have been deactivated so far by the
Unique Identification Authority of India
for a number of reasons as per Section
27 and 28 of the Aadhaar (Enrolment
and Update) Regulations, 2016. These
could include multiple Aadhaars issued
in one name or discrepancies in the bio-
metric data or supporting documents.
UIDAI wants each Aadhaar holder to
check the Authority’s website if his
Aadhaar is active. With internet
penetration through desktops at just
under 8 percent and mobile internet
usage only at 30 percent, this is a highly
ambitious directive.
Those whose Aadhaar has been
deactivated should visit the nearest
enrolment centre along with the sup-
porting documents.Also remember,
Aadhaar can get deactivated upon
non-usage of the same for three con-
secutive years. Think of the plight of
those in remote villages and what will
happen to various subsidies if Aadhaar
is deactivated.
DeactivationofAadhaar
Biswarup Ganguly/Wikimedia

20 December 4, 2017
fingerprints. The problem arises when
this work is transferred to a comput-
erised system,” he said. “A software is
not always working with artificial intelli-
gence which is foolproof and capable of
a certain degree of guesswork. This
needs a human touch, and that is what
the Supreme Court has allowed us.
Hence, even a small change in pattern
will result in rejection by the software.”
Another issue is the way fingerprints
are collected. Ghosh added: “When I
went to give my fingerprint for Aadhaar,
I gave them my identity and I did it the
right, scientific way because I am an
expert in it. Collectors assigned for
Aadhaar aren’t trained in this. Hence,
there are problems at the collection
stage itself. I would dare say that 60-70
percent of all fingerprints collected
are unworkable.”
Sankar Dutta Roy, a former director
of the same bureau, said that the cal-
loused hands of a labourer would show
different fingerprints. “But give it time
to heal and the patterns come back. The
original fingerprint ridges come back
when the skin grows back. This has
been the basis of all forensic study in
catching criminals for a long time,” he
told India Legal. He, too, said that
untrained people were collecting finger-
prints and, therefore, the collection
method was faulty. “For example, the
right way to give a thumb impression is
a ‘rolling’ method where even the sides
come into the scan. That is not followed,
hence not scanned,” he said.
PRIVACY MATTER
Aadhaar has also been buffeted with the
privacy issue which is being heard by
the Supreme Court. Calcutta High Court
senior advocate Arunava Ghosh said it is
criminal to take away “the accrued and
vested rights of a person”. “These rights
may either have been acquired over the
years or vested in him by the state. They
may not be fundamental rights, but are
as strongly protected by law as any
other. Think of our right to property and
our right to travel; they are constitution-
al rights that we exercise and in doing
so, we need the basic infrastructure of
banks and travel documents. If these are
withdrawn from us, we are being denied
them.” And this could happen if one’s
fingerprint does not match and the
Aadhaar number is deactivated.
Another issue is that Aadhaar details
have also been leaked to the public. Sec-
tion 29 of the Aadhaar Act says: “29. (1)
No core biometric information, collected
There are eight basic characteristics
of a fingerprint, according to
Debasis Ghosh and Sankar Dutta
Roy of the WB CID Fingerprint
Bureau. They are:
Ridge-ending
Island
Hook
Short Ridge
Crossover
Change over
Lake
Bifurcation
According to Ghosh, these charac-
teristics can be more of one and less of
the other in a hand. However, the basic
structure of a pattern, once established,
never dies. Hence, even if the skin is
loose due to lack of elasticity and the
ridges are not well-defined, there are
other characteristics of a fingerprint that
are easily recognisable by an expert
such as trend and flow of a ridge and
the general pattern. Computer software
could miss these. The uniqueness of
fingerprints exists even among identical
twins, which is what tells them apart.
Fingerprintcharacteristics
Spotlight/ Aadhaar
uidai.gov.in
AT THE HELM
UIDAI chairperson J Satyanarayana (second
from left) needs to address many questions

or created under this Act, shall be— (a)
shared with anyone for any reason
whatsoever; or (b) used for any purpose
other than generation of Aadhaar num-
bers and authentication under this Act.”
The Act also says: “(3) No identity
information available with a requesting
entity shall be—(a) used for any pur-
pose, other than that specified to the
individual at the time of submitting
any identity information for authenti-
cation; or security and confidentiality
of information.” With respect to
“restriction on sharing information”,
the Act says: No information can be
“(b) disclosed further, except with the
prior consent of the individual to
whom such information relates.”
Though these are the provisions of the
Act, little is done when such informa-
tion is leaked. Recently, it was learnt
that 210 government sites had made
Aadhaar data public. This goes against
sub-section 4 of the Act, which says:
“(4) No Aadhaar number or core
biometric information collected or cre-
ated under this Act in respect of an
Aadhaar number holder shall be pub-
lished, displayed or posted publicly,
except for the purposes as may be spec-
ified by regulations.”
However, a hacker can easily enter
the database and modify a multitude of
biometric details to effect immediate
and automatic deactivation of a huge
number of Aadhaar numbers.The result
will be a breakdown in societal as well
as the security structure of the country.
Criminal investigation agencies such as
the CID’s fingerprint bureau keep their
databases a heavily guarded secret,
accessible only to sections of the securi-
ty establishment. In contrast, UIDAI’s
database seems porous, without ade-
quate firewalls.
A disaster could just be waiting
to happen.
TheAadhaarWorld
IncomeTaxreturns
Must to file ITR, plus to
apply for PAN
MutualFundinvestments
MoF notification deadline
Dec 31, for all MF
investments
ThePradhanMantriUjjwala
Yojana
For BPL women
Housesubsidy
Mandatory for beedi/iron
ore/limestone workers’
subsidy
Cropinsurancebenefit
Made essential for
farmers
GrihKalyanKendra
For women and children
of lower income groups
NationalApprenticeship
PromotionScheme
Financial support for
apprentices
SportsParticipants
To bring in transparency
and avoid age fraud
Insurance
Mandatory to link with all
policies, health and life
ActionPlanforSkillTraining
(ForDisabled)
Linking must to avail
`100 crore corpus
Supplementarynutrition
programme:Programme of
Ministry of women and
child development
JananiSurakshaYojana
For poor, pregnant
women
MeritScholarship
For central scholarship
and financial support for
students
SoilHealthCardScheme
To avail grants for soil
health management
IRCTC
For booking of railway
tickets online
NationalSocialAssistance
Programme
For R&D in water sector
NationalHealthMission
For availing services of
trained female community
health activists
SarvaShikshaAbhiyan(SSA)
Mandatory for benefits to
disabled children
(6-14 years)
IntegratedChild
DevelopmentServices
To avail training
E-panchayattraining
Training for automation
of Gram Panchayat
functions
MaternityBenefits
Programme(MBP)
Help to pregnant,
lactating mothers
LPGandkerosenesubsidy
Supreme Court linked
Aadhaar to PDS and
LPG subsidy
IntegratedChildProtection
For children and
juveniles in need
DeendayalAntyodayaYojana
Skill training to the poor
Vocationaltraining,loans
Affordable financial
support to students for
skill development courses
NationalMissionfor
EmpowermentofWomen
To avail financial support
A bird’s eye view of how the UID no. is being
linked to almost every need of the citizen
Mandatory links to bank A/C, PAN and ITR apart, future linkages could include telecom, driving licences, passports etc.
Rajender Kumar

22 December 4, 2017
Solvecropburningissue,saysNGT
As per a National Green
Tribunal directive, Delhi
and its neighbouring states of
Haryana, Punjab, Rajasthan
and Uttar Pradesh will meet
next week to find out viable
solutions to stop stubble burn-
ing. The green court has asked
them to work out a mechanism
to move the stubble from farms
to power plants where it can be
used as fuel, as well as brain-
storm on other possible ways to
solve the crisis and get back to
the tribunal with options, if
any. The National Thermal
Power Corporation had
informed the NGT that the crop
residue could be used only in
pellet form in its plants. The
states were also asked to find
out if they should have palleti-
sation plants and come up with
a list of thermal plants.
Briefs
Google Doodle paid tribute
to Rukhmabai, one of the
first Indian women to practise
medicine. She was also one of
the early torchbearers of the
right to consent and it was her
constant efforts against child
marriage which prompted the
government to bring in the Age
of Consent Act, 1891. She
refused to move in with her hus-
band, to whom she was married
off at the age of 11, and fought
a legal battle that lasted three
years. When the verdict went
against her and it was ruled that
she would either have to live
with her husband or face six
months’ imprisonment,
Rukhmabai bravely chose the
latter. It was Queen Victoria who
then overruled the judgment and
dissolved her marriage.
Google Doodle
salutes Rukhmabai
—Compiled by Lilly Paul
It seems that the Uttar
Pradesh government’s pat-
on-the-back exercise on en-
counters carried out by its
police has not gone down well
with the National Human
Rights Commission (NHRC). It
has sought a detailed report
from the state government on
the endorsement of the police
encounters. The NHRC took
suo motu cognisance of media
reports about Chief Minister
Yogi Adityanath and others
supporting the police encoun-
ters in public. The UP CM at
several public meetings, had
appreciated the encounters, say-
ing that criminals in the state
have only two options—surren-
der or die. The Commission
has issued notice to the chief
secretary of the state and asked
him to submit a report within
six weeks.
NHRC issues notice to
UP on police encounters
Amidst heavy criticism by the Oppo-
sition over the winter session of par-
liament being delayed, the centre has
finally announced the dates. The session
will commence on December 15, a day
after the end of voting in the Gujarat
assembly elections. It will continue until
January 5, 2018, which means that the
MPs will have to attend parliament on
New Year’s Day, too.
As per the schedule, this winter session
is likely to be one of the shortest in the
past 10 years with just 14 sittings. The
winter session of 2013 has been the short-
est so far with only 11 sittings.
Aproposal for the revision
of salaries of Supreme
Court and high court judges
has been approved by the
Union Cabinet. As per media
reports, the centre will table
two bills on the proposed
hike in the winter session of
parliament. The bill, if
passed, will increase the
monthly salary of the Chief
Justice of India to `2.8 lakh
per month, besides allow-
ances. The Supreme Court
judges and chief justices of
high courts will get `2.5 lakh
per month besides other
allowances. High court
judges will get `2.25 every
month. The hikes got de-
layed as the centre was look-
ing into the recommenda-
tions made by former CJI TS
Thakur on the issue.
Cabinet approves proposal for salary revision of judges
Winter session from Dec 15,
a day after Gujarat polls

24 December 4, 2017
N French, the word “Rafale” means
a rapid firing of artillery. In India,
it equates itself with scandal, by an
indigenous chemistry process
which means “it has to be corrupt,
mega-millions involved”. Before we
go into the merits (or lack of any) of the
accusation made by Congress leader
Rahul Gandhi against Prime Minister
Narendra Modi for engaging in corrup-
tion over the Rafale deal, let’s first
address the issues that lie blurred
by misconceptions.
First off, the Rafale is not a bad figh-
ter aircraft. Nobody makes bad aircraft.
Certainly not when it comes to fourth
generation fighters. It is as good as the
other contenders and holds its own
against them. No one ever said the Bof-
ors shoot and scoot 155 mm gun was a
lemon either, but the ripple effect of that
mess still haunts the corridors of power.
EFFICIENT FIGHTER?
I once asked Serge Dassault why anyone
should buy a Rafale at over three times
the price of an F-16 Block 60 Fighting
Falcon. He said quite seriously that it
was four times more efficient than the
most upgraded Lockheed-manufactured
fighter ever.
I don’t quite know how true that
boast is. In an age when drones are tak-
ing over air battles and delivery systems
for missiles have become as high a pri-
ority as Patriot-type defence systems,
the heroic dogfight imagery is becoming
passé. The Spitfires in the sky are no
longer of the essence, Biggles.
Conventional wars are also not on
the agenda. Besides, the upgraded ver-
sion (the F-16 is the poster child for the
success of navigating obsolescence) of
even the Sukhois and the Gripen has
given them a great lease on life. The
Gripen, for example, is the only light-
weight fighter of the topline contenders.
Boeing's F/A-18E/F Super Hornets, the
Eurofighter Typhoon, Mitsubishi/Lock-
heed Martin’s F-2 and Sukhoi’s Su-
30/35 all have maximum takeoff
weights in excess of 45,000 lb with com-
mensurate price tags.
Now, while there is this widely held
belief that every military deal in India is
marred by corruption, the fact is that
evidence is needed. One cannot take
the unfinished business of the Bofors
issue and use it as the smear-stick for
all other purchases.
The negotiation for fourth-generation
fighters to replace the ageing MiG-29s
began in 2007 and the Congress whinny
of protest now rings untrue. Even in
2012 when they should have gone ahead
with the replacements, they did not.
What Modi did was kill the 2014 deal,
then scythe through the red tape and
pick up 36 ready-to-fly Rafales without
a transfer of technology clause which
would have manifested itself with the
manufacture agreement for 108 others.
The French unilaterally offered a deal
from Airbus for $2 billion and an offset
that could reportedly reach 50 percent
of the price for the 36 aircraft at $8.9
billion. It gets sweeter.
One cannot overlook the cost factor
of other systems such as the Meteor air-
to-air missiles (150-km range), Scalp
air-to-ground cruise missiles (300 km)
and top-of-the-range avionics, including
the Israeli-built head-up helmet-mount-
ed display systems. The Targo 2 system
from the Israel-based Elbit Systems
allows pilots to plan, rehearse, fly and
debrief using their personal helmets,
providing them with increased situa-
tional awareness, safety levels and oper-
ational abilities. Egypt and Qatar who
purchased 24 Rafale aircraft each paid
relatively more for the planes.
My Space Bikram Vohra/ Rafale Deal
EvenastheCongresscriesfouloverthisIndo-Frenchdeal,
willpettypoliticsonceagaindepriveourairforceofsystemsit
badlyneedstocombatchallengesalongIndia’sborders?
Dogfight
Over Fighters
I
WhathasModidonesowrongingivinga
muchoverdueshotinthearmtoanair
forcesufferingfrommusculardystrophy?
Theotheroptionwastocancelthedeal,
andstartfreshnegotiations.

And if Modi has bought the naval
variant of the Rafale, different from the
land fighter, it will be ideal for opera-
tions from aircraft carriers as it gets into
a dominant position faster and will have
an edge against the enemy.
Catapulted from a carrier deck in less
than 75 m, the Navy Rafale instantly
and automatically rotates to the correct
angle of attack. This critical operation is
made possible by the aircraft's innova-
tive “jump strut” nose landing gear. So,
if this batch is destined for the flight
deck and is the only Delta-winged carri-
er fighter in the world, then maybe we
have a leading edge.
OTHER OPTIONS
What has Modi done so wrong in giving
a much overdue shot in the arm to an
air force suffering from muscular dys-
trophy? The only other option was to
cancel the deal, go
back to the end of
the line and start
another negotiation.
Another five years
down the drain, plus
the write-off of this
abortive effort.
We have to get over this equation of
buy means bribe. It’s the corrupt mind-
set that wrecks India’s ventures into the
hardware market. As one of the largest
arms buyers in the world, we are in
demand. Unfortunately, we are seen by
the market as a nation where bribes are
part of the deal.
So, they offer the bribe. Middlemen
have middlemen and none of it has
stopped. Hiring former military person-
nel is now discouraged. Defence min-
istry mandarins have no idea of what is
what, so they also mince about passing
files, waiting for the top echelons to give
the nod in a specific direction.
It is a matter of shame that we have
so efficiently failed to create our own
arsenals despite being a free
nation for 70 years. The
Arjun MBT tank took 37
years to trundle out and is
such a heavy 55-tonne
clunker that both the Mark
1 and Mark II variants have
failed to hit the target. We
have forced them down the
throat of two regiments but
no one’s laughing. The need
for a Light Combat Aircraft
was agreed upon in 1984
and the design for a home-
made variant was started in
1985. Thirty-three years
later, the plane is still not viable. No one
asks why the Tejas is still on the ground.
As for the slur on the `30,000-crore
deal between Dassault and Reliance
Defence, why is it automatically
assumed to be a murky arrangement? It
is well within corporate laws and if
Dassault elects to work with Reliance,
do we stop them selling us the Rafale?
If Reliance has decided to sue the
Congress, it has good reason legally. It
has been quoted widely, saying:
“Government policy issued on 24 June
2016 allows for 49% FDI in the Defence
Sector under the automatic route, with-
out any prior approval. No approvals
from the Union Cabinet or CCS were
required for the formation of the afore-
said Joint Venture company under the
automatic route.”
At present, India faces two hostile air
forces and pretend as we might that our
air force has teeth, the truth is not palat-
able. We need fighters and we need an
across the board upgrade. Yes, there was
a time 40 years ago when Gnats took on
the Pakistani Sabrejets and won many a
battle in the sky. This is no longer on the
cards, so stop with the critique and get
the air force what it deserves.
COMBAT APPEAL
(Clockwise
from left) The
French-made fighter
aircraft Rafale; the
indigenously
designed Light
Combat Aircraft
Tejas; Arjun tanks
at Rajpath
DECKS CLEARED: Defence minister Manohar
Parrikar (right) and French minister Jean-Yves
Le Drian signing the Rafale deal in 2016
UNI
PIB
PIB

26 December 4, 2017
HILE demonetisation
and GST hogged
attention and media
coverage, another
financial sector event
of importance passed
off without much fanfare. One of the
most significant reforms in recent years
has been the enactment of the Insol-
vency & Bankruptcy Code, 2016 (IBC).
The reasons for this
statement are not far to
seek. The deluge of
stressed assets, bad debts
and resulting NPAs has
crippled the banking sec-
tor. On the one hand, it
has brought lending activ-
ity to a virtual standstill,
stymying growth, and on
the other hand, it has
pushed the government in
a corner as it tries to
recapitalise public sector
banks without increasing
the fiscal deficit beyond
the danger mark. The res-
olution of insolvency till
now has resembled a free-
for-all with multiple agen-
cies—the Company Law
Board, Debt Recovery
Tribunals, Board for
Industrial and Financial
Restructuring, high
courts—and laws—
Companies Act, 2013,
SICA (Sick Industrial
Companies Act), 1985,
RDDBFI (Recovery of
Debts Due to Banks and
Financial Institutions)
Act, 1993, SARFAESI (Securitisation
and Reconstruction of Financial Assets
and Enforcement of Security Interest)
Act, 2002—creating a lot of confusion
but achieving precious little. A huge
amount of capital has, therefore,
remained locked instead of being
deployed in the engine of growth.
The Insolvency & Bankruptcy Code,
2016, seeks to put an end to this
deplorable state of affairs. One, it aims
at consolidating all existing insolvency
related laws as well as amending them,
including the Companies Act. Two, it is
to have an overriding effect on all other
such laws. Three, it aims to resolve
insolvencies in a strict time-bound man-
ner. Four, it introduces a paradigm shift
in the handling of resolution of insol-
vencies, from the existing “debtor in
possession” to a “creditor in control”
regime. And lastly, it clearly defines the
order of priority of dues and renders
government dues junior to most others.
Thus, the objectives are laudable but it
remains to be seen how effective the IBC
is going to prove.
The IBC came into force in
December 2016 and will be celebrating
its first anniversary soon. Along with
banks, the RBI has also faced sharp crit-
icism for failing in its duty as a regulator
and allowing the problem of bad
assets/NPAs to degenerate to this level.
Perhaps stung by the criticism, the RBI
constituted an Internal Advisory
Committee (IAC) to help it with the
cases to be referred for resolution under
the IBC.
In June 2017, the IAC considered the
top 500 stressed exposures in the bank-
ing system and identified 12 accounts
for immediate reference under the IBC.
Accordingly, the RBI directed the banks
concerned to start insolvency proceed-
ings in these 12 cases. Later, in
September, it was reported that the RBI
had also sent a second list to banks with
a direction to resolve them by
December, failing which they should be
referred for proceedings under the IBC.
It has been reported that Insolvency
Column Mukesh Kacker/ Insolvency & Bankruptcy Code
W
That Sinking Feeling…
Asmoreandmorebaddebtspileup,theCodeaimstoresolveissuesinatime-bound
mannerandamendrelatedlaws
Anthony Lawrence

Professionals (IPs) have already been
appointed in most of the 12 cases and
almost 300 others in various stages
of hearing.
As this is a new law, it is natural that
the adjudicating tribunal (National
Company Law Tribunal or NCLT) and
the regulator (Insolvency and
Bankruptcy Board of India or IBBI) will
face many issues that had not been
thought of at the time of drafting the
legislation. While some are only proce-
dural, though important in nature, there
are also a few issues that have a direct
bearing on the raison d’etre of the IBC.
REFORM PROCESS
The government recognises that the suc-
cess of the IBC is crucial to the overall
success of the reform process and has
been quick to take note of these con-
cerns. On November 17, 2017, the gov-
ernment appointed a 14-member com-
mittee under corporate affairs secretary
I Srinivas to assess the functioning of
the IBC and examine issues that could
impact the framework prescribed under
the law. The committee includes IBBI
Chairman MS Sahoo, representatives
from RBI, the department of financial
services and external experts.
The first practical issue of concern is
that the IBC makes no distinction
between financial creditors and opera-
tional creditors (like vendors, trade
creditors and employees) in so far as
approaching the NCLT after a default is
determined. This is problematic and an
invitation to frivolous applications
under the IBC. The mandate before the
NCLT under the IBC is to resolve insol-
vency and bankruptcy and not recovery
of business/trade dues or settling the
claims of employees. The NCLT can be
submerged under a deluge of such
applications from trade creditors and
employees. The NCLT had to actually
dismiss a large number of such applica-
tions but the fact remains that such an
application per se is not disallowed
under the Code. This can lead to
wastage of precious time and energy of
all parties and unnecessarily increase
the workload of NCLT. The committee
needs to look into this and introduce
stringent criteria for admissibility of
applications from operational creditors.
Another procedural issue that has
cropped up concerns the treatment of
home buyers when insolvency/bank-
ruptcy of a housing infrastructure com-
pany is being considered. These home
buyers do not fit into either financial
creditors or operational creditors.
Their status under the IBC became the
subject matter of discussion after the
admission of the case brought in by
IDBI Bank against Jaypee Infratech, one
of the 12 cases picked out by the RBI in
June 2017.
Jaypee Infratech had promised to
deliver 32,000 villas, apartments and
plots but could not deliver any to about
25,000 investors/buyers. So what is the
status of these buyers on two issues—fil-
ing a case under IBC (aren’t they credi-
tors?) and the seniority of their claim in
the priority of dues? The committee also
needs to look into this and bring in suit-
able amendments.
TREATMENT OF PROMOTERS
However, the most important issue that
confronts the policymakers relates to the
treatment of promoters under the IBC.
Aren’t the promoters primarily responsi-
ble for bringing their companies to the
state of insolvency and bankruptcy? And
should they not be treated more
VICTIMS OF
FRAUD
(Above) Jaypee
flat buyers
protesting against
the delay in allot-
ment of their flats,
in New Delhi;
(Left) Employees
taking out a can-
dlelight march
against Vijay
Mallya, former
chairman of
Kingfisher
Airlines,
in New Delhi
UNI

Column/ Mukesh Kacker/ Insolvency & Bankruptcy Code
28 December 4, 2017
strictly or altogether differently? All
procedures of solving bad debts—corpo-
rate debt restructuring, ARCs taking on
the bad debts or resolution under the
IBC—involve accepting “hair-cuts” by
the debtors, so the assets ultimately are
available at a much whittled-down
value. Knowing this, promoters who are
personally rich will always try to get
back possession of their companies at
much-reduced cost. Should they be
allowed to do so and will it not defeat
the very purpose of the IBC?
There are two stages at which a pro-
moter can move to regain possession of
his company and both need to be looked
at critically. The first stage is when a res-
olution plan is to be presented to the
creditor’s committee. Should promoters
be allowed to propose a resolution plan?
At the moment, the IBC allows this.
However, in order to weed out unworthy
promoters, the regulator (IBBI) recently
made disclosure requirements at the
time of making a resolution application
much stricter.
The IBBI, on November 7, amended
the Insolvency & Bankruptcy Board of
India (Insolvency Resolution Process for
Corporate Persons) Regulations, 2017.
As per this amendment, a resolution
plan must contain all details of the reso-
lution applicant and other connected
persons: conviction for any offence,
criminal proceedings pending, disquali-
fication under the Companies Act to act
as a director, identification as a wilful
defaulter, debarment by SEBI and also
transactions with the corporate debtor.
However, as these requirements have
been mandated by the IBBI regulations
and not by the mother Act, any rejection
of a resolution application by a promot-
er on these grounds will be open to legal
challenges. Hence, these amendments
need to be backed by necessary changes
in the IBC also. The committee under
the corporate affairs secretary needs to
look into this very thoroughly.
The second stage when a promoter
can try to regain control of his company
is when it goes into liquidation after the
rejection of resolution plans. Should the
promoter be allowed to bid here? I feel
that the last chance to a promoter to
redeem himself should be at the stage of
proposing a resolution plan. If that fails
either as a result of the applicant not
meeting the credential requirements or
the plan not being approved by the com-
mittee of creditors, then the promoter
should be barred from any further
involvement in bidding at the liquida-
tion stage, except for his personal assets
that might have been pledged. This is
another issue that the committee under
the corporate affairs secretary must
focus on to introduce necessary changes
in the IBC.
Lastly, there is the issue of accounta-
bility and criminal culpability of pro-
moters in fraud. It was reported in The
Economic Times that US-based risk
consulting firm Kroll had questioned
the narrow focus of the IBC on a time-
bound resolution process which avoids
the issue of criminal culpability of pro-
moters and stakeholders in fraud.
According to Kroll, without accountabil-
ity “the entire process is going to
become a legalised and formal way of
writing off fraud”. The Economic Times
also quoted Tadashi Kageyama, head of
Kroll Asia’s operations: “Unfortunately
when there is a bad business, there is
typically, an element of fraud. All
the stakeholders, the banks, the govern-
ment as well as the borrowers, want to
lift the bad loans as quickly as possible,
but our question is who is going to
investigate the fraud and who is going to
be accountable?”
We have the example of Satyam and
Kingfisher Airlines where the Serious
Frauds Investigation Office carried out
investigations but they were ordered
because of the special focus those cases
received, not because of any systemic
process kicking off automatically.
An important task before the com-
mittee under the corporate affairs secre-
tary is to introduce a process of detect-
ing fraud and criminal culpability in
each case of insolvency resolution before
the NCLT. Only then will the IBC be a
law with teeth.
—The writer is a former IAS officer and
an expert on corporate governance
FormerSatyamchairman
BRamalingaRajuwasarrested
aftertheSeriousFrauds
InvestigationOfficecarried
outinvestigations.
Getty Images

Supreme Court/ Parsi Divorce Case
RECENT judgment of
the Supreme Court dec-
laring instantaneous
triple talaq unconstitu-
tional appears to have
inspired followers of
other religions to aspire for similar
reform of their personal laws. The Parsi
Marriage and Divorce Act (PMDA),
1936, as amended in 1988, is one such
pre-Independence legislation which was
recently challenged by a Parsi woman in
the Supreme Court.
The petitioner, Naomi Sam Irani, 33,
challenged several provisions of the Act,
saying they were in contravention of
Articles 14 and 21 of the Constitution
and violated her fundamental rights.
Naomi married Sam Irani in 2005
under Zoroastrian-Iranian rites and cus-
toms as per the Act. The Iranis have two
children—a son and a daughter born in
2007 and 2009, respectively. In 2016,
the husband filed a Parsi matrimonial
suit against Naomi in the Bombay High
Court, seeking dissolution of the mar-
riage under Section 32 (dd) and (g) of
the Act.
COURT’S DISCRETION
Section 32 (dd) says that any married
person may sue for divorce on the
ground that the defendant has, since the
solemnisation of the marriage, treated
the plaintiff with cruelty or has behaved
in a way whereby it was improper,
according to the court, to compel the
plaintiff to live with the defendant. A
proviso to this Section adds that in every
suit for divorce on this ground, it shall
be up to the court’s discretion whether it
should grant a decree for divorce or
judicial separation only.
Section 32 (g) makes it possible to
sue for divorce on the ground that the
defendant has deserted the plaintiff for
at least two years. The divorce suit filed
by Naomi’s husband is pending in the
Bombay High Court.
IWantto
BreakFree…ApetitionhaschallengedtheconstitutionalityoftheParsi
MarriageandDivorceActandcouldwellpavethewayfor
reformswithintheminoritycommunity
By Venkatasubramanian
A
VIBRANT AND JOYFUL
A Parsi wedding showcases the unique
culture and tradition of the community
formyshaadi.com/blog

on the facts shall be the decision of
the majority of the delegates before
whom the case is tried,” she claimed in
her petition. She added that the dele-
gates’ verdict is final and no appeal lies
after that.
PARSI COURT
The Parsi Chief Matrimonial Court sits
only once or twice a year, and that too
only for short durations. In view of the
drastically increased number of divorce
petitions, the jury acts as a practical
impediment to the speedy delivery of
justice, which possibly could not have
been foreseen during the enactment of
the statute, she claimed.
The parties to a divorce petition
must continue to wait for the matrimo-
nial court to come into session. It
requires at least eight weeks’ advance
notice to empanel a jury of delegates
and for a court to set aside time from an
already over-burdened docket.
However, law is dynamic and cannot
remain stagnant when there is a need
for evolution. Hence, reforms should be
made when the law which is made for
the convenience of the public at large,
turns into an inconvenience, Naomi rea-
soned in her petition.
30 December 4, 2017
Among the most discrimi-
natory features of the Act is
Section 24 which deals with
the appointment of delegates.
Under Section 24 (1), state
governments have been
empowered to appoint “dele-
gates” to aid in the adjudica-
tion of cases arising under the
Act. This is after giving local
Parsis an opportunity to
express their opinion in such
manner as the respective gov-
ernments may think fit.
Section 24 (2) of the Act
requires that the persons so
appointed shall be Parsis, their
names shall be published in
the Official Gazette and their
number shall, within the local
limits of the original civil juris-
diction of a high court, be not
more than 30, and in districts beyond
such limits, not more than 20.
Under Section 25, the appointment
of a delegate shall be for 10 years but he
shall be eligible for reappointment for
the like term or terms. In case of vacan-
cies arising out of specified grounds, the
state government may appoint any Parsi
to be a delegate in his or her stead and
the name of such person shall be pub-
lished in the Official Gazette.
Section 27 says that the delegates
selected under Sections 19 and 20 to aid
in the adjudication of suits under this
Act shall be taken under the orders of
the presiding judge of the court in due
rotation from the delegates appointed
by the state government under Section
24. A proviso to Section 27 allows each
party to the suit to challenge any two of
the delegates attending the court with-
out stating reasons before they are
selected, and no delegate so challenged
shall be selected.
NO SPEEDY DISPOSAL
Naomi has claimed in her petition in the
Supreme Court that as on date, there
has been no appointment of delegates to
participate in the matrimonial proceed-
ings pending in the Bombay High Court.
Naomi, therefore, claimed that because
of their non-appointment in time, she
has been deprived of speedy disposal of
her case and of the specialised jurisdic-
tion of the family court.
She specifically challenged Sections
18, 19, 20, 24, 29, 30, 46 and 50 of the
Act which provide for the jurisdiction,
constitution and appointment of dele-
gates, etc, and the delay caused by such
delegation in deciding Parsi matrimoni-
al matters. She justified her petition as
being in the interest of equality, fairness
and right to speedy disposal of cases,
including matters pertaining to matri-
monial disputes.
Section 18 of the Act provides for
constitution of “special courts” to hear
suits filed under the Act. It enables set-
ting up of special courts in Kolkata,
Chennai and Mumbai and called them
“Parsi Chief Matrimonial Courts”.
She pointed out that the trial of cases
under the Act has to take place in the
presence of a judge appointed under
this Act, who is to be aided by five dele-
gates. These delegates are, for all practi-
cal purposes, a jury, she said. “All suits
under the said Act and all questions of
law and procedure shall be determined
by the presiding Judge but the decision
Supreme Court/ Parsi Divorce Case
UNI

SMALL BUT SIGNIFICANT
(Facing page) Parsis celebrating Navroze, the
Parsi New Year, in Ahmedabad; (above) the
Parsi colony in Dadar, Mumbai
The abolishment of the jury system
was deemed a positive step in the histo-
ry of the judiciary. This is because the
jury, in most cases, was not in a position
to weigh the facts properly, and was like-
ly to be swayed by popular and painted
notions, whereas as a mature democra-
cy, we stand for free and fair judgments.
Achieving a fair and just result by
and within law is no apostasy; no faith
could possibly demand that its adher-
ents be made to wait endlessly for their
cases to be decided, Naomi has contend-
ed, calling the structure of delegates as
anachronistic, as it tends to delay the
disposal of cases.
SECTIONS 30 AND 50
Section 30 of the Act enables declara-
tion of a marriage, at the instance of
either party, to be null and void, if its
consummation from natural causes
becomes impossible. Section 50, dealing
with settlement of the wife’s property for
the benefit of children, says that in any
case dealing with adultery of the wife,
the court may order settlement of one
half of her property for the benefit of
the children.
Calling Sections 30 and 50 semi-sub-
stantive provisions, Naomi drew the
attention of the court to the absence of
similar provisions in other codified per-
sonal laws. Thus, other codified enact-
ments require declaration of voidable
marriage on the ground of non-consum-
mation of marriage on account of impo-
tency of the spouse, legal or medical. As
a result, she says, the status of a person
in whose favour the decree is passed is
that of a divorcee under PMDA, 1936.
However, the status of the person in
whose favour the decree is passed in
other codified enactments remains that
of a spinster/bachelor in the eyes of the
law. Naomi also challenged Section 50
as completely gender-biased and hence
unconstitutional.
Naomi pointed out that the Act pre-
dates the abolishment of the jury system
in the jurisprudence of the country.
Notwithstanding this, the practice of
appointing delegates to aid in adjudica-
tion of cases arising under the Act, and
giving local Parsis an opportunity to
express their opinion in a matter which
is clearly in the realm of privacy bet-
ween the parties, continues to find fa-
vour in law.
FAMILY COURTS
The Family Courts Act of 1984 had
mandated the establishment of family
courts with a view to promote concilia-
tion and secure speedy settlement in
disputes relating to marriage and family
affairs. Section 7 of the Family Courts
Act provides that it shall have and exer-
cise all the jurisdiction exercisable by
any district court or a subordinate civil
court. Section 8 of the Act specifically
bars any district or subordinate court
from exercising jurisdiction over matri-
monial and connected matters.
Naomi pointed out that in view of
the provisions of the Family Courts Act,
persons subject to their respective
codified personal law, save and except
those subject to the PMDA, 1936, have
the benefit of a secure, speedy settle-
ment mechanism in family courts to
resolve disputes.
However, in view of the provisions of
Sections 18 and 19 of the PMDA in pur-
suance of which special courts, namely
Parsi Chief Matrimonial Courts and the
Parsi District Matrimonial Courts, have
been established, the parties subject to
this Act are compelled to seek the juris-
diction of these special courts. They are,
therefore, deprived of the advantages of
family courts, whereas non-Parsis are
entitled to them, Naomi claimed.
Clearly, it strikes at the root of the prin-
ciple of equality before law and equal
protection of law guaranteed under
Article 14 of the Constitution.
Naomi claimed that even the territo-
rial jurisdiction based upon the cause of
action is discriminatory compared to
persons subject to other codified person-
al laws. A plaintiff-wife under this Act
does not have the convenience of invok-
ing the jurisdiction of the court within
whose territorial jurisdiction she resides
to seek matrimonial relief.
She, therefore, claimed that the Act
impinges upon her fundamental rights,
which guarantee speedy disposal of pro-
ceedings as well as equal treatment with
other similarly placed persons as far as
procedural laws are concerned.
The hearing of the case and its out-
come is expected to bring about much-
awaited reform within the Parsi religion
with regard to divorce.
parsikhabar.net

Agriculture/ Tribal Rights
32 December 4, 2017
visit to the new market
yard of Udaipur mandi
yields some gems. There is
a heap of wild Indian
gooseberry (amla) selling
for `90 a kg. The whole-
sale price of cultivated amla in Delhi
during that week was around `15.
Nearby is a heap of puhad or wild
senna, which fetches around `10 a kg. It
is said to be an immunity booster and
has export markets in China, Vietnam,
South Korea and Germany. Mandi sec-
retary Bhagwan Sahai Jatwa said its
price had shot up to `65 a kg last year
because of hoarding, which made the
importers turn to Africa.
There are other heaps of the fruits
and flowers of India—butter tree
(mahua), wild soapnut (ritha) and jat-
ropha (rattanjot).
At the old mandi, a trader had safed
musli, a sex stimulant retailing for
`2,500 a kg. Meanwhile, the owner of
Metro Trading Company displayed a
handful of seeds of black oil plant (mal
kangni) which fetches `250 a kg.
Collectively called minor forest pro-
duce or non-timber forest produce,
these had gone under-harvested, depriv-
ing tribals of employment and income.
New policies are helping the tribals
eke out a living from the forests. Jatwa
says the forests of Rajasthan abound in
such produce which is greatly in de-
mand by companies making cosmetics,
Ayurvedic medicines and nutrition
supplements. The government’s policies
have helped too. For example, the policy
of coating urea fertiliser with neem
oil for slow release to plants and to
prevent misuse has brought companies
like Gujarat Narmada Fertiliser Cor-
poration to the mandi with an order of
5,000 tonnes.
TRADABLE COMMODITY
In October 2015, these forest products
were made tradable in Rajasthan’s regu-
lated mandis. But they still needed
transit permits from the forest depart-
ment to be transported and traded.
These were rarely issued. Though they
cost just `1 each, the process of obtain-
Fruits of Success
Withforestproducebeingnotifiedasatradablecommodityand
restrictionsbeingremoved,Rajasthan’stribalscanfinallyget
benefitsfromflowers,nutsandberriesnurturedbythem
By Vivian Fernandes
A

ing them was tedious. Even to move a
small quantity of wild produce from
the forests, one had to apply to the
ranger who would send a guard to the
location to physically verify the stuff.
The district forest officer would then
issue the permit.
Jatwa said violation of the permit
resulted in confiscation of the seized
material, a stiff penalty and even a jail
term of six months. Tribals were thus
deprived of endowments, which was
theirs by right. Instead, the state
would sell the right to procure and sell
the produce.
Jatwa showed an annual contract
of 2012 which gave the contractor the
right over the produce of the forests
in Saira village panchayat in Udaipur’s
Gogunda tehsil. It was for `12,500.
Contractors, he said, had no obligation
to buy at all, but tribals could only
sell to them at a price they fixed. It
was unfair.
But things have changed now.
Transit permits have been abolished in
Rajasthan’s forest districts but there are
still complaints about police and forest
officials extorting money from tribals
and drivers who did not have them.
Even now, tribals come at break of day
to avoid harassment by officials, Jatwa
said. Not many are aware that there is
no need for transit permits.
TRIBAL POWER
The new market yard is yet to be opera-
tional. The space for shops will be allot-
ted in a month. There will be 71 of
them. A few will be reserved for tribals,
some for industries processing wild
produce, others for big exporters and a
few for state-level tribal cooperatives.
There was resentment among the
traders, some of whom accused the
officials of being corrupt. The officials,
in turn, said they were angry at not
being allowed to apply for multiple
shops for themselves and their kin.
Jatwa’s enthusiasm was palpable. It
was obvious that it was at his initiative
that forest produce had been notified as
a tradable commodity. In two years, wild
produce worth `189 crore had been sold
at the mandi, he said. Commission
agents can charge 2 percent of the value
from buyers. The mandi levies a tax of
1.6 percent. It provides meals to sellers
at `5 each. To the kin of tribals and
farmers who die in accidents on the way
to or from the mandi or from snake
bites, a compensation of `2 lakh is
given. In three years, the mandi has
distributed `3.80 crore in death relief.
The removal of restrictions on trad-
ing has brought more produce to the
market. With more players, there will be
better price discovery. Newer uses will
also be found.
At a camp in Devla recently, tribals
met officials of the Rajasthan Medicinal
Plants Board. They showed fruit,
flowers, nuts, berries and roots that had
varied uses such as boosting milk in
lactating mothers, curing snakebite or
bringing down fever.
Unchecked commerce can be corro-
sive but for now, it is giving tribals a
stake in conservation by putting money
in their hands.
Withforestproducebeingnotifiedasa
tradablecommodity,wildproduceworth
`189crhasbeensoldatthemandi in
thepasttwoyears.Themandi provides
mealstosellersat`5each.
REAPING A FORTUNE
(Facing page) The Udaipur mandi stocked
with forest produce; (above) the wild Indian
gooseberry (amla)
“Thenewpoliciesarehelpingthetribals
ekeoutalivingfromtheforests.The
forestsofRajasthanaboundinproduce
thatisgreatlyindemandbycompanies
makingcosmetics,Ayurvedicmedicines
andnutritionsupplements.”
—UdaipurMandisecretary
BhagwanSahaiJatwa

India Legal 04 December 2017

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