India Legal 04 September 2017

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Triple Talaq Verdict:
Empowering Muslim Women
Lt Col Purohit:
The Mystery Unravels
September4, 2017
SUPREME
COURT GETS
IT RIGHT
...ON PRIVACY
Ashistoricajudgmentastheapex
courthaseverdelivered,itdefines
therelationshipbetweencitizens
andthegovernmentandwill
impactthelivesofeveryIndian
Ram Rahim:
Trial by Fire

ASHINGTON DC: President Donald
Trump’s much ballyhooed “new”
Afghanistan policy is old wine in new
bottles. It is more an effort to show-
case Trump as being “presidential and
decisive” to his domestic audience when his populari-
ty ratings are at an all-time low, rather than any bold
new stratagem to end the conflict in one of the most
explosive regions in the world.
The theatrics which have caught the world’s atten-
tion, however, are Trump’s blunt assertions that his
administration will come down heavily on Pakistan
for sheltering terror and pro-Taliban networks such
as the Haqqani organisation, while leaning more
heavily on India to play a more dominant role in the
region. Cold-shouldering Pakistan publicly—Trump
accused it of “harboring agents of chaos”—while tilt-
ing more openly towards India is the policy shift
which has proved to be the headline-grabber all
across the world rather than the commitment of a
few more American ground troops in Afghanistan.
What this implies in terms of military and diplo-
matic strategy or what will actually change on the
ground is anybody’s guess. This is largely because his-
torically, the goals of foreign interventionists in
Afghanistan have remained amorphous outside of
protecting their own interests in this strategically
located and minerally rich mountain terrain.
Shifting alliances and rapid regime changes
make it impossible to define permanent
friends or enemies in Afghanistan. There
are too many cooks churning up the
broth—America, NATO, Iran, Pakistan,
Russia, and increasingly, China.
So what does an American “victory”
which Trump now desires after having cam-
paigned for a troop pullout from Afghanistan,
which he had described as an expensive foreign,
no-gain adventure for the US, really mean? Well,
he tried to define it in his speech: “Attacking our
enemies, obliterating ISIS, crushing Al Qaeda,
preventing the Tali-ban from taking over
Afghanistan, and stopping mass terror attacks
against America before they emerge.”
And how will he do this? Even though he did not
spell it out, Pentagon and State Department sources
have hinted that the first step, the military one, will
be to increase American troop levels from the current
8,500 to about 12,000 and intensify drone attacks.
The troops, however, will be confined to support and
training activities and counter-terror intelligence
rather than being engaged in direct battle with the
Taliban and other rebel forces. This means there is
now a commitment for American forces to remain in
Afghanistan for at least a decade, thereby prolonging
what is possibly the costliest 16-year military opera-
tion in American history.
Afghanistan government security forces loyal to
President Ashraf Ghani number anywhere between
2,00,000 to 2,50,000 and are not yet considered to
be fully trained or battle-worthy. The Taliban con-
trols anywhere between 35 to 40 percent of the
country, and are gaining ground, with a strangle-
hold in Helmand, the opium capital of the region.
Islamic state adherents are trying to gain a foothold
in Khorasan.
President Barack Obama’s “surge” in Afghanistan
saw the presence of over 1,00,000 troops in 2010
before the gradual withdrawal—an amount almost
equal to the Russian buildup before Moscow’s igno-
minious retreat in 1989. That comparison in itself
speaks volumes for the fate of foreign military
involvement in Afghanistan. The historical chain
shows—starting with the British reverses —that you
can neither set up a Westminster nor a Kremlin nor a
White House in Kabul. Yet, in the current stalemate,
about 3,000 civilians and government troops are
killed every year, while the Taliban and rebel fighters
lose 10,000 men who are replaced just as rapidly.
O
n the diplomatic front, Trump’s “tilt” to India
may be more a public snub or an irritant to
Pakistan, but it is not overly worrying unless
Trump can match words with action, which seems
to be a difficult proposition for the American Presi-
dent. His government has been unable to fill 100
AFGHANISTAN: WILL
TRUMP WALK THE TALK?
Inderjit Badhwar
Letter from the Editor
W
| INDIA LEGAL | September 4, 2017 3

strategic posts. Washington does not have an ambas-
sador in Kabul, and the President’s Special Agent
position in Pakistan, charged mainly with looking
after Af-Pak issues, remains vacant.
The exact nature of the role that Trump wants
India to play in Pakistan remains unclear. Whispers
in diplomatic quarters in Washington are that Trump
requested Prime Minister Narendra Modi during
their last meeting for even “a token form” of military
assistance. Modi, sources say, was sympathetic but
insisted that Washington should display firmer
resolve in deterring Pakistan from aiding and abet-
ting Taliban-networked terrorist groups like LeT and
JeM in their hits on India and involvement in the
Kashmir insurgency.
India already has over a billion dollars in invest-
ments in Afghanistan in civilian projects. Indian
diplomats have told their American counterparts that
New Delhi would be willing to double this figure on
its own in return for a greater American involvement
in India’s security concerns and tough action against
Pakistan. So, the American administration has been
trumpeting cutting off billions of dollars in economic
and military aid to Pakistan as well as possible sanc-
tions against Pakistani government operatives found
sympathising with or aiding anti-India terror groups.
But Pakistani diplomats have been nothing short
of brilliant in manipulating their Western allies, par-
ticularly America, when it comes to triangular dip-
lomacy and the strategic isolation of India. The
Pakistani position with the Americans behind closed
doors is that they have no option but to use some of
the Taliban-supported groups as a buffer against Ind-
ia forging alliances on Pakistan’s western front in
order to deny it “strategic depth” in the east, where
Indian military forces are arrayed against their coun-
try. They also argue that Indian “repression” in Kash-
mir is the real cause for Islamic insurgent violence
against India, rather than any Pakistani instigation.
T
he Americans are not unaware of Pakistan’s
double game. Yet it works. It’s called the “loyal
ally” line. Whenever America gets tough with
Pakistan, Islamabad’s diplomats and lobbyists fan out
among the capital’s Congressional, administration,
financial, media and military circuits, reminding
them—with deep humility and sense of pain and
hurt—that “you are letting down your most loyal ally
who has always stood by your side”. They are doing
that even now, pointing out that Pakistan’s civilians
and school children have been wounded, maimed and
killed by the Taliban.
One senior Indian diplomat confided to me: “They
are superb at this game. Better than us. Our appeals
to America in terms of being sister democracies and
believing in the same values fall flat in comparison to
Pakistan’s pleadings that they willingly joined the
SEATO and CENTO groupings as military partners
with the US in post-World War II when India was
non-aligned, or helped the US reach out to China in
1971, or gave the Americans air bases, and helped
create the American-backed jehadi resistance to the
Russian invasion of Afghanistan.”
Also, the relationship between the Pakistani mili-
tary, the ISI, and American defence contractors who
have done billions worth of business with Pakistan is
a bond that very few Presidents or members of Cong-
ress have been able to break. So, America looks the
other way even though it is aware that the military
and financial aid it gives to Pakistan to fight insur-
gents and protect western interests in Afghanistan is
diverted to building up its military strength against
India. This has been a long-standing bone of con-
tention between India and the US which Modi con-
Letter from the Editor
Sgt. William Tremblay Spc. Courtney Ropp
4 September 4, 2017

veyed to Trump in plain language.
Sanctions and threats against Pakistan have never
worked. I remember former Congressman Lester
Wolff, chairman of the Asian and Pacific Affairs
Committee, telling me that he had repeatedly infor-
med the US administration—with photographic evi-
dence in the early 1980s—that Pakistan was building
centrifuges to develop nuclear weapons, but he was
ignored. Later, Congressman Stephen Solarz succeed-
ed in getting through Congress the Solarz Amend-
ment which would sanction any non-NPT country
suspected of developing fissionable materials. Later,
this sanction was lifted specifically for Pakistan even
as evidence mounted it was about to go nuclear.
An earlier offer of financial aid to Pakistan by
President Jimmy Carter, the former peanut farmer
from Georgia, to deter Pakistan from the nuclear
path and yet retain its support against the Russian
invasion of Afghanistan in 1979, was disparagingly
dismissed by Gen. Zia-ul-Haq as “peanuts”.
Pakistan, in the face of weak US resistance, went
on to become not only a nuclear power but also a
rogue nuclear proliferator, selling and sharing secret
nuclear reactor parts and technology to North Korea,
Iran, and Libya. The fact that America’s enemy num-
ber one, Osama bin Laden, was being sheltered in
Pakistan had little or no impact on the relations
between that country and the US, which continued to
treat Pakistan as a frontline state and a key strategic
ally supporting larger American interests in
Afghanistan and Central Asia.
The Wall Street Journal recently commented that
Pakistan “has been exploring alternative alliances in
recent years. The new pressure on Pakistan as well as
a renewed US tilt towards India that Mr Trump stre-
ssed is likely to drive Islamabad deeper into a grow-
ing partnership with China, which has shown an
increased willingness to provide support to Pakistan.
Washington has to be careful that any pressure cam-
paign doesn’t jeopardise its ability to move military
supplies through Pakistan to Afghanistan which is
landlocked”. China has already invested some $55 bil-
lion in infrastructure projects in Pakistan.
J
arrett Blanc, former special representative for
Afghanistan and Pakistan under the Obama
administration, bluntly said on the record to the
American media that efforts to crack down on
Pakistan had never produced any concrete results:
“We’ve tried this in every conceivable way. We’ve
withheld funds in the past, and it doesn’t have any
particular meaning.”
Pakistan remains openly defiant and defensive. It
denies harbouring terror groups and paints itself as
the biggest victim of terror. Its foreign minister, KM
Asif, has gone on record saying “we can survive with-
out (US) money. We are not fighting this war with
their money”.
But there is no doubt that Islamabad takes very
seriously any Indian attempt to play the “Afghanistan
card” against it. This is its vulnerable underbelly. And
it may make a difference, no matter how small, if not
to the larger conflict in Afghanistan, at least to the
Indo-Pak equation if Trump puts his money where
his mouth is and India walks that extra mile.
Twitter: @indialegalmedia
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Contact: editor@indialegallive.com
PIB
TROUBLED TERRAIN: (L-R) US soldiers in Afghanistan; an Afghan National
Army soldier in Logar province during an operation to curb insurgent activity;
the Taliban’s hold over Afghanistan is increasing; US President Trump with
PM Modi—the US is leaning on India for tactical support in Afghanistan

6 September 4, 2017
ContentsVOLUME. X ISSUE. 42
SPETEMBER4,2017
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Privacy Comes First
The apex court’s unanimous decision to call it a fundamental right is a shot in the arm for
the citizen, giving him another weapon against arbitrary action by the state
14
LEAD
Victory and Vindication
In a landmark judgment, a five-judge bench pronounced instant divorce or talaq-e-biddat
unconstitutional. Thousands of Muslim wives can now look forward to a life of dignity
SUPREMECOURT
BCCI on a Sticky Wicket
It has been reprimanded for its reluctance to implement the Lodha Committee reforms and
handed a September 19 deadline to frame and submit its draft constitution
26
20

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Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................12
International Briefs..........48
Media Watch ..................49
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Trial by Fire
After the Dera Sacha Sauda chief was pronounced guilty, his men
went on a rampage. Why was the government caught napping?
32
COURTS
Clean Chit
under Cloud
The reasons cited by the
top court in granting bail to
Lt Col Purohit, accused in
the Malegaon blast case,
exposes the investigation
as either shamefully
shoddy or motivated
28
Maid in India
At an estimated 35 million, they are the
single largest category of female
professionals. Can the law bring them
relief from their exploitation by
recognising them as workers?
SOCIETY
44
The Killer Blue Whale
One way to respond to the dangers posed by this online game is to amend the
IT Act 2000. Another is to have service providers check its spread
CYBERCRIME
40
Language and Lies
With Arun Jaitley accusing him of making false statements
under oath, Arvind Kejriwal now faces perjury charges
31
A Challenge for Society
Why are children playing this deadly game? Psychologists and teachers address
this question and offer suggestions on how to protect them from virtual predators
42
Smoke
Out Profiteers
In a reassuring move, the
Delhi government has
warned of legal action
against tobacco firms if
they violate laws and
advertise at outlets selling
their products
34
HEALTH
Of Misplaced Trust
A PIL, seeking to quash the centre’s proposal to introduce electoral bonds, has
revealed how funding for political parties is becoming more and more opaque
36
POLITICS

8 September 4, 2017
“
RINGSIDE
“The fact that the pain and anger of the child is
ignored and one’s own ego to make the child
learn is so massive that compassion has total-
ly gone out of the window. This is shocking and
saddening to another dimension. A child can
never learn if intimidated. This is hurtful.”
—Indian cricket skipper Virat Kohli, reacting to a viral
video showing a child being traumatised during maths
lesson, on Instagram
Two consenting adults
don’t have the right to end
the dignity of the entire
society…. Live-in relation-
ships need to be registered
like marriage. What sort of
freedom is this…without
notice (people) start living
in with someone else, then
a third person? This is
infecting the society.
—Chief of Rajasthan Human
Rights Commission, Justice
Prakash Tatia, in The
Indian Express
The silver lining in this mo-
ment is the fact that there
is such a strong movement
for reform among Mus-
lims…. For progressives to
unwittingly side with com-
munal forces by shielding
all personal law from the
shining light of Articles 14
and 21, would be to let
down these forces bubbling
up within Indian society.
—Pratap Bhanu Mehta, VC,
Ashoka University, in the
Indian Express
The more I met people
who had little faith in
me, the more I was
determined to spend my
parents’ money and get a
degree abroad. The nega-
tive energy that comes
from such people can be
a positive drive out.
—Chairperson of Max
Financial Services Naina
Lal Kidwai, at the Mail
Today Femail Summit in
Delhi
BCCI is a very male
chauvinist organisation.
They never wanted
women to dictate terms
or get into this thing….
Even now, I would still
say that it is not yet well
accepted within BCCI
that women’s cricket is
doing well.
—Former Indian skipper
Diana Edulji, in The
Indian Express
It is a standoff where
all sides know that going
beyond a point of no
return is going to cost
everyone and is going to
destroy all our respective
dreams. I believe that
people have the good
sense to not go beyond a
standoff.
—Thailand’s ambassador
to India Chutintorn
Gongsakdi, in
The Times of India
We appreciate India’s
important contributions to
stability in Afghanistan,
but India makes billions of
dollars in trade with the
US, and we want them to
help us more with
Afghanistan.
—US President Donald
Trump, in a televised
address to the nation, laying
out his South Asia policy

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
CAR BAR
Much is being made of the series of
meetings that the prime minister has
been holding with CEOs from the private
sector last week. The interaction has
been organised by Niti Aayog which has
formed six teams from 200 CEOs to take
the initiative forward in various sectors.
There is, however, a hidden agenda: job
creation. The opposition has been ham-
mering away at the lack of jobs, a reality
which assumed serious proportions after
demonetisation, while the private sector
has seen an avalanche of layoffs. A
recent national opinion poll gave Modi
high marks but his biggest failure was
identified as scarcity of jobs—he had
promised to create one crore jobs.
During the interaction with CEOs, one
key question was how to boost employ-
ment. Not many of them had answers.
The prime minister’s warning
to ministers to abstain from
using cars and accepting
five-star hospitality from PSUs
has dealt a major blow to
their lifestyles. For decades
now, it has been accepted
practice for ministers, senior
and junior, to get luxury cars
or SUVs from PSUs under
their ministry, for their person-
al use. In many cases, these
were used by ministers’ wives
and family and were kept on
even when the mantri con-
cerned was transferred or his
tenure ended. Being minis-
ters, they insisted on staying
in five-star hotels while travel-
ling, rather than state guest
houses. That bill, including
food and all other items, was
also picked by PSUs, no
questions asked. It was a
cozy arrangement, one that
was institutionalised, till Modi
decided to end the fun
and games.
NOT IN A PICKLE
The most stressful job in the
Indian bureaucratic maze has
to be that of the Union home
secretary. Yet, Rajiv Meherishi
is never in a pickle. Recently,
he hosted a lunch for journal-
ists just before he relinquishes
office and they were amazed
to find some 30 different types
of aachar accompanying the
food. Maherishi explained that
they were all homemade, and
all his own recipes, some fami-
ly secrets, but all tangy and
delicious.
It’s called seeing light in the
darkness. The Gorakhpur
medical tragedy which left
some 80 babies dead has
come as a major embarrass-
ment for both the UP govern-
ment and the centre. But the
babus in the health ministry
can still see a positive. They
feel that medical and administrative neg-
ligence which led to the deaths at the
state-run hospital could push the case
for privatising public health care.
According to sources, the old files relat-
ing to this are being re-looked to frame a
new proposal which will have the
“Modicare” touch. What’s more, the new
PPP model will also involve the participa-
tion of Ayurvedic medicine and doctors
which will keep the swadeshi lobby in
the RSS happy. Healthcare privatised
would also give a big boost to the insur-
ance sector. There are many pluses,
although there are the sceptics within the
Sangh Parivar who warn that medical
costs could shoot up, which could prove
costly in electoral terms.
POSITIVES FROM
THE NEGATIVE
THE JOB SCARE
The distance between Delhi and Bhopal
is about 570 km as the crow or the
Airbus flies. But that has not prevented
MP Chief Minister Shivraj Chauhan from
frequently creating a buzz at the BJP
headquarters in Delhi. The latest is about
the grand welcome he organised for
party president Amit Shah last week
when he came on a three-day visit to MP.
Four Gujarati chefs were reportedly flown
in so that the BJP president could be
well catered for. And his favourite gulka-
nd was flown in from Goa. As for accom-
modation, Shah had said he preferred to
stay at the party office
rather than at a hotel.
So, the CM, playing the
perfect host, installed
new powerful ACs in
the three guest rooms
to ensure that
Bhopal would be
like Kashmir in
spring.
PERFECT HOST

The Supreme Court appointed advocate
Gopal Subramanium as amicus curiae, and
Advocate Gopal Shankarnarayan to adjudicate
a petition that has questioned a law passed by
the UP government, allowing former chief min-
isters (CMs) to stay put in their official bunga-
lows despite being out of power. It observed
that the issue was critical and will have a bear-
ing on legislations enacted by state govern-
ments and the centre, and elaborate debate
and discussion was a must.
The Akhilesh Yadav government had amen-
ded the UP Ministers (Salaries, Allowances and
Miscellaneous Provisions) Act, 1981 to enable
ex-CMs to keep staying in their bungalows.
The petition filed by NGO Lok Prahari
informed the court that the apex court order
passed in August 2016 had clearly stated that
former CMs could not be allotted bungalows
by the state government and they should sur-
render these as soon as they were out of off-
ice. Former CMs Rajnath Singh, Mulayam
Singh Yadav and Mayawati have been benefit-
ted by the law.
The petition sought the Court’s attention,
alleging that the apex court’s order had been
bypassed by the state government through the
amendment.
The NGO also objected to another law—
The Allotment of Houses under Control of the
Estate Department Bill 2016—cleared by the
UP government to manage allotment of hous-
es. It enables the state government to take a
call on doling out government houses to oth-
ers, including trusts, journos, political parties
and government officials.
The Supreme Court ruled that all live feeds
of sought-after sports events, especially
cricket, received by Prasar Bharati can only
be shared with its own terrestrial and DTH net-
works, and not private cable operators.
The Court was referring to sports feeds
passed on by private broadcasters to Prasar
Bharati, mandatory under Section 3 of the
Sports Broadcasting Signals (Mandatory
Sharing with Prasar Bharati) Act 2007. Prasar
Bharati then re-transmits them to viewers
through its terrestrial and DTH networks.
However, those subscribing to private cable
operators are also able to watch the feeds, as
Section 8 of the Cable TV Networks
(Regulation) Act makes it compulsory for cable
operators to include channels (Doordarshan
network) notified by the government. As a
result, they do not have to pay for the feeds.
ESPN and STAR had objected to this legal
framework, citing loss of revenue and violation
of agreement with BCCI. The Delhi High Court
had ruled in their favour and the verdict was
challenged in the apex court.
Delhi LG asked
to cite reasons
Courts
The Delhi High Court
struck down an April
order of the Delhi Lieutenant
Governor cancelling the
allotment of a bungalow to
the Aam Aadmi Party’s
(AAP) office in Rouse Ave-
nue, New Delhi. Observing
that no reasons had been
cited for the cancellation, the
Court asked the LG to revisit
the matter and issue another
order backed by solid rea-
sons within eight weeks.
There can’t be any dis-
crimination against AAP as
far as the policy related to
allotment of accommodation
for political parties in Delhi
is concerned, the court
observed. AAP was allotted
the bungalow on December
31, 2015.
The LG’s order had cited
violations of rules but the
ruling party of Delhi pleaded
that nothing was amiss and
the centre had targeted the
party when, as a matter of
policy, all registered political
parties must be allotted
space in Delhi.
The centre put up the
argument that AAP had
rejected the offer of another
place in south Delhi and the
Shunglu committee had put
a question marks on the
allotment.
The PWD orders issued
to AAP turning down the
party’s request for another
accommodation and also
demanding more than `27
lakh as market rent for the
Rouse Avenue bungalow
was also struck down by
the court.
SC seeks
legal
advice on
houses
for former
CMs
No sharing of sports feed
with cable operators
10 September 4, 2017

The Supreme Court took up the issue of “hon-
our killings” sanctioned by Khap panchayats
in north India, especially Haryana and Uttar
Pradesh, and asked suggestions on how to pre-
vent such killings, including hounding of cou-
ples who go for inter-caste and inter-clan
marriages. The court sought opinions from
NGO Shakti Vahini and Raju Ramachandran,
the amicus curiae, and posted the matter after
four weeks.
The NGO had approached the top Court in
2010, pleading that the Court direct the centre
and the state governments to take action so
that such killings could either be stopped alto-
gether or brought down. The centre wanted
a system in place so that such killings could
be tracked.
Suggestionssoughtagainst
honourkillings
The Supreme Court has adopted an exclusive
“flag” and “plate” for use on official vehicles
of the chief justice of India and its judges. In a
release, Rakesh Sharma, deputy registrar of the
apex court, said: “In the view of the need being
felt to have a common flag on the officials of
the chief justice and the judges of the higher
judiciary across the country, the Supreme Court
of India has also written to all high courts to
consider adopting the same flag and plate for
the official vehicles.”
However, according to the Motor Vehicles
Act and the subsequent rules, using any word
on the number plate other than the registration
number is illegal. This is clearly stated under
Section 50 and 51 of the Motor Vehicles Act,
1988. The problem is that any complaint filed
will land up in court!
Flag,plateforjudges
vehicles?
— Compiled by Prabir Biswas
In a significant reversal of its order,
though in a different case, the Kerala
High Court (above) ruled that a girl, if
she is a major, has the right to choose
her life partner even if he has a ques-
tionable background and is not
accepted by her parents. In the Akhila
alias Hadiya case, who is 24 years
old, the Court had annulled her mar-
riage to a Muslim, Shafin Jahan, sus-
pecting it to be a case of love jihad. In
this case also, the accused was a
Muslim.
Nasni’s parents had filed a habeas
corpus petition, alleging that their
daughter was abducted by Abdulla,
who, as well as his father, had a crim-
inal background. A case was also
filed by the police in this regard. How-
ever, Nasni, who is already a major,
said in the Court that she was not
taken away against her wishes and
was in love with Abdulla and would
like to marry him. The parents plead-
ed that their daughter was “immature”
as cited by a report of the clinical
psychologist who was asked by the
Court to examine Nasni.
The Court, however, rejected
their pleas and the writ petition
was dismissed.
The civil defamation
suit filed by the then
Congress leader Avtar
Singh Bhadana against
Delhi chief minister
Arvind Kejriwal was dis-
posed off recently by a Delhi court. A
joint application by both of them sub-
mitted in the court stated that the
matter was resolved and they did not
want to pursue the matter legally.
Bhadana’s lawyer told the court that
Kejriwal had withdrawn his comment
and said that he did not intend to sully
the reputation of Bhadana.
Bhadana (right), who is now with
the BJP, had filed a defamation suit,
claiming Rs one crore as damages
from the Delhi CM for his alleged
comment that he was corrupt.
Kejriwal
keeps
defamation
at bay
A major is free to
marry anyone
AIADMK leader VK Sasikala’s
review petition against her convic-
tion in the disproportionate assets
case was dismissed by the Supreme
Court. The apex court had upheld the
trial court’s verdict which had held
her guilty and awarded imprisonment.
Sasikala is lodged in the Bengaluru
Central jail. The petition wanted the
Court to acquit her as all legal pro-
ceedings against Jayalalithaa in the
case had come to an end due to her
death, and pleaded that the same
should apply to her. However, the
Court held that there was no “error”
in its verdict.
No to Sasikala plea

Once Chief Justice of India-designate
Justice Dipak Misra takes over on
August 28, the Union law ministry will
make a fresh bid to renegotiate the stalled
memorandum of procedure with regard to
judicial appointments with the new col-
legium. The contentious proposals of the
ministry did not meet the approval of the
collegiums headed by chief justices JS
Khehar and TS Thakur. These include
denying it final say on appointment of a
judge when it could put in peril “national
security”, a clause relating to committees
for evaluating the candidates for judgeship
and another regarding setting up of a
complaint-handling mechanism in the SC
and high courts. The draft MoP is pending
for over a year now. The SC had itself sug-
gested that the MoP be drawn up when it
set aside the National Judicial
Appointments Act.
Briefs
—Compiled by Lilly Paul
The Central Bureau of Investiga-
tion has taken over the probe
into the Srijan scam involving alleged
transfer of government funds
amounting to close to `1,000 crore to
accounts of a non-government organ-
isation in Bihar’s Bhagalpur district
between 2007 and 2013. Manorama
Devi, founder of the NGO, Srijan
Mahila Vikas Sahyog Samiti, died in
February but an initial probe has
revealed government money under
different heads would be directly
deposited with Srijan in outright
violation of banking norms. People
would flock there, not knowing it was
not a full-fledged bank. Thirteen
accused in the scam have been
arrested but key suspect Mahesh
Mandal, who acted as a conduit
between Central Cooperative Bank,
Srijan and the government, has just
died of cancer. Both the then
JD(U)-BJP government and the
Rabri Devi dispensation which
authorised the funds transfer in
2003 are under the scanner.
CBI takes over
Srijan probe
The Film Certification Appellate
Tribunal has ordered the Central
Board of Film Certification to give the
U/A certificate to An Insignificant
Man, a documentary on Delhi Chief
Minister Arvind Kejriwal. It has
waived the requirement of a no-
objection certificate from Prime
Minister Narendra Modi, former
Delhi Chief Minister Sheila Dikshit
and Kejriwal, for the film as stipulated
by the CBFC, then headed by Pahlaj
Nihalani. The decision has now come
as a huge relief to the directors of the
documentary film, Vinay Shukla and
Khusboo Ranka.
Decks cleared for
Kejriwal film
Judges’appointmentscasetobetakenup
Air India chairman and managing direc-
tor Ashwani Lohani has been appoint-
ed chairman of the Railway Board after
incumbent AK Mittal resigned, citing per-
sonal reasons, post the back-to-back railway
accidents in Uttar Pradesh that claimed 20
lives. Lohani is an Indian Railway Service
officer of the 1980 batch. He has four engi-
neering degrees. Union railways minister
Suresh Prabhu, too, meanwhile, met Prime
Minister Narendra Modi and offered to
resign, taking moral responsibility for the
accidents. Modi has asked him to wait.
Lohani now
heads
Railway
Board
The Union cabinet has approved the
constitution of a commission to
examine how the central list of Other
Backward Classes can be divided into sub-
groups. The Most Backward Classes have
long complained that stronger OBCs were
cornering quota benefits. The National
Commission for Backward Classes had
made a detailed recommendation to the
social justice ministry in March 2015 to
this effect. The centre has also revised the
salary bar for availing Mandal reservations
upward by changing the “creamy layer”
ceiling to `8 lakh annually from the exist-
ing `6 lakh. Now, individuals with annual
family income up to `8 lakh will be
eligible for reservation in jobs and
education.
Panel to further split OBCs

among other things.
The judgment was delivered on a
PIL filed by former Karnataka High Co-
urt Judge KS Puttaswamy in 2012, chal-
lenging the Aadhaar scheme. After this,
more than 20 cases were filed on the
said issue and the Supreme Court club-
bed all of them to the main case. These
cases include petitions by Col Mathew
Thomas, activists Aruna Roy, Bezwada
Wilson, Nikhil Dey and many others.
Six separate but concurrent judg-
ments were written by the nine-judge
Lead/ Right to Privacy
N a landmark judgment on August
24, a nine-judge bench of the Sup-
reme Court unanimously ruled that
individual privacy is a fundamental
right. It said it was an intrinsic part
of right to life and personal liberty
and was guaranteed by the constitution.
The ruling will touch the daily lives of
134 crore Indians and will affect the
centre’s move to make Aadhaar manda-
tory for social welfare benefits, collec-
tion of personal data and Section 377
which criminalises homosexuality,
InabigrelieftoallIndians,theSupremeCourthasthrownits
weightbehindtherightofanindividualtoprivacyandcalledit
afundamentalright.Thishasfar-reachingimplicationsfor
everyaspectofdailylife
By Vinay Vats
Saving Private
I
PrivacyIstheConstitutionalCoreofHumanDignity.Personalchoices governing
awayoflifeareintrinsictoprivacy.
—ChiefJusticeKhehar,JusticeDYChandrachud,
JusticeRKAgrawaland
JusticeSAbdulNazeer
Anindividualcanonly
developtothefullextent
ofhispotentialifthe
individualhasautonomy
overfundamental
personalchoices.
—JusticeRohinton
FaliNariman

Citizen
RighttoPrivacyisa
NaturalRightwhich
whichinheresinevery
humanbeingbybirth...
suchrightsremaintill
he/shebreatheslast.
—JusticeAMSapre
Privacyisthekeyto
freedomofthought.It
isanindividual’schoice
astowhoentershis
househowhelivesand
inwhatrelationship
—JusticeSanjay
KishanKaul
Manisnotacreatureofthe
State.Tosanctifyanargu-
mentthatwhateverisnot
foundintheconstitution
cannotbecomeapartof
theconstitutionistoo
primitiveanunderstanding.
—JusticeJChelameswar
Privacycanbelocatedin
everyconstitutionalfreedom.
Welockourdoors...andset
passwordstoourcomputers
andphonestosignalthatwe
intendforourplaces,persons
andvirtuallivestobeprivate
—JusticeSABobde
UNI

bench on the issue. The bench was hea-
ded by Chief Justice of India JS Khehar,
and included Justices J Chelameswar,
SA Bobde, RF Nariman, RK Agrawal,
AM Sapre, DY Chandrachud, Sanjay K
Kaul and S Abdul Nazeer.
As per this historic judgment, the
right to privacy is protected as an intrin-
sic part of the right to life and personal
liberty under Article 21 and as a part of
the freedoms guaranteed by Part III of
the constitution. It said the decision in
MP Sharma and Kharak Singh cases,
which hold that the right to privacy is
not protected by the constitution stand
over-ruled.
The detailed judgment running into
547 pages should be seen against earlier
judgments. These include:
MP Sharma v Satish Chandra (1954):
Right to privacy is not a fundamental
right.
Kharak Singh v State of Uttar Pradesh
(1963): Right to Privacy is not guaran-
teed under our constitution.
Govind v State of Madhya Pradesh
(1975): SC accepted a limited funda-
mental right to privacy but observed
that it is not absolute and reasonable
restrictions can be imposed.
Maneka Gandhi v Union of India
(1978): Supreme Court laid down a
number of provisions which made
“right to life” or “personal liberty”
more meaningful.
R Rajagopal v State of Tamil Nadu
(1995): Right to privacy of his own, his
family, marriage, motherhood, procre-
ation and right to be let alone is guaran-
teed under Article 21 of the constitution
and no one can publish above matters
without his permission.
People’s Union for Civil Liberties v
Union of India (1997): Right to privacy
is a part of right to life and liberty
enshrined under Article 21.
JUDGES’ COMMENTS
Justice Chandrachud, speaking for him-
self, Chief Justice Khehar, Justices
Nazeer and Agrawal discussed the issue
in a mammoth detailed judgment run-
ning into 265 pages, which occupied
half of the 547-page judgment. He bifur-
cated the issue under 20 heads, which
include earlier judgments, origin and
evolution, jurisprudence and compari-
son of right to privacy with other coun-
tries. He termed privacy as the reserva-
tion of a private space for the individual
and described it as the right to be let
alone. The concept is founded on the
autonomy of the individual. He said pri-
vacy of the individual was an essential
aspect of dignity which had an intrinsic
as well as instrumental value. As an
intrinsic value, human dignity is an enti-
tlement or a constitutionally protected
interest in itself. In its instrumental
facet, dignity and freedom are insepara-
bly intertwined, each being a facilitative
tool to achieve the other.
While overruling the judgment in
MP Sharma, Justice Chandrachud wrote
that the earlier court only looked at the
P
rivacy uses the theory of natural
rights, and generally responds to
new information and communica-
tion technologies. In the US, an article in
the December 15, 1890 issue of the
Harvard Law Review, written by attorney
Samuel D Warren and future US
Supreme Court Justice, Louis Brandeis,
entitled “The Right to Privacy”, is often
cited as the first implicit declaration of a
US right to privacy. Warren and Brandeis
wrote that privacy is the “right to be let
alone”, and focused on protecting indi-
viduals. This approach was a response
to technological developments of the
time such as photography, and sensa-
tionalist journalism, also known as “yel-
low journalism”.
Privacy rights are inherently inter-
twined with information technology. In
dissenting opinion in Olmstead v United
States (1928), Brandeis relied on
thoughts he developed in his 1890 article
“The Right to Privacy”. But in his dissent,
he urged making personal privacy mat-
ters more relevant to constitutional law,
going so far as saying “the government
[was] identified...as a potential privacy
invader”. He writes: “Discovery and
invention have made it possible for the
Government, by means far more effective
than stretching upon the rack, to obtain
disclosure in court of what is whispered
in the closet.” At that time, telephones
were often community assets, with
shared party lines and the potentially
nosey human operators. By the time of
Katz, in 1967, telephones had become
personal devices with lines not shared
across homes. In the 1970s, new com-
puting and recording technologies began
to raise concerns about privacy, resulting
in the Fair Information Practice Principles.
In recent years, there have been only
few attempts to define a “right to priva-
cy”. In 2005, students of the Haifa Center
for Law & Technology asserted that in
fact the right to privacy “should not be
defined as a separate legal right” at all.
By their reasoning, existing laws relating
to privacy in general should be sufficient.
Other experts, such as William Prosser,
have attempted, but failed, to find a
“common ground” between the leading
kinds of privacy cases in the court sys-
tem, at least to formulate a definition.[5]
One law school treatise from Israel, how-
ever, on the subject of “privacy in the dig-
ital environment,” suggests that the “right
to privacy should be seen as an inde-
pendent right that deserves legal protec-
tion in itself.”
The 1890 Warren and Brandeis article
“The Right To Privacy”, is often cited as
the first implicit declaration of a US right
to privacy. Strict constructionists argue
that no such right exists (or at least that
the Supreme Court has no jurisdiction
to protect such a right), while some civil
libertarians argue that the right invali-
RighttoPrivacyAbroad

issue on the basis of Art 20(3) of the
constitution but overlooked whether
right to privacy would arise from any of
the other provisions of the rights guar-
anteed by Part III including Article 21
and Article 19. Similarly, he overruled
Kharak Singh, as its reliance on the
decision of the majority in Gopalan is
not reflective of the correct position in
view of the decisions in Cooper and in
Maneka. He observed right to privacy
was constitutionally protected by the
guarantee of life and personal liberty in
Article 21, but like other fundamental
rights, it is also not absolute. Any law
encroaching this right will have to meet
the touchstone of reasonable restric-
tions. However, in his judgment, the
issue of “data protection” was left un-
touched with direction to the Union
ORWELLIAN STATE: Prime Minister Modi
distributing LPG connections to Ujjwala
beneficiaries in Varanasi. Such schemes
now need Aadhaar cards
dates many types of currently allowed
civil surveillance (wire tapes, public cam-
eras, etc.).
Most states of the US also grant a
right to privacy and recognise four torts
based on that right:
Intrusion upon seclusion or solitude, or
into private affairs;
Public disclosure of embarrassing pri-
vate facts;
Publicity which places a person in a
false light in the public eye; and
Appropriation of name or likeness.
On March 11, 2015, Intelligence
Squared US, an organisation that stages
Oxford-style debates, held an event cen-
tered on the question, “Should the US
adopt the ‘Right to be Forgotten’”. The
side against the motion won with a 56
percent majority.
In the UK
Privacy in English law is a rapidly devel-
oping area that considers in what situa-
tions does an individual have a legal right
to informational privacy—the protection
of personal or private information from
misuse or unauthorised disclosure. Pri-
vacy law is distinct from laws such as
trespass or assault. Such laws are gener-
ally considered part of criminal law or the
law of tort. Historically, English common
law has recognised no general right or
tort of privacy, and was offered only limit-
ed protection through the doctrine of
breach of confidence and a “piecemeal”
collection of related legislation on topics
like harassment and data protection.
The introduction of the Human Rights
Act 1998 incorporated into English law
the European Convention on Human
Rights. Article 8.1 of the ECHR provided
an explicit right to respect for a private
life. The Convention also requires the
judiciary to “have regard” to the Conven-
tion in developing the common law.
The earliest definition of privacy in
English law was given by Thomas M
Cooley who defined it as “the right to be
left alone”. In 1972, the Younger
Committee, an inquiry into privacy stated
that the term could not be defined satis-
factorily. Again in 1990 the Calcutt
Committee concluded that: “nowhere
have we found a wholly satisfactory
statutory definition of privacy”.
There is currently no freestanding
right to privacy at common law. This
point was reaffirmed when the House of
Lords ruled in Home Office v Wainwright
(a case involving a strip search undertak-
en on the plaintiff Alan Wainwright while
visiting Armley prison). It has also been
stated that the European Convention on
Human Rights does not require the
development of an independent tort of
privacy.
In the absence of a common law,
right to privacy in English law torts such
as the equitable doctrine breach of confi-
dence, torts linked to the intentional inflic-
tion of harm to the person and public law
torts relating to the use of police powers
have been used to fill a gap in the law.
The judiciary has developed the law in an
incremental fashion and has resisted the
opportunity to create a new tort.
—By Nikhil Pandey
PIB

Asperthishistoricjudgment,the
righttoprivacyisprotectedasan
intrinsicpartoftherightto
lifeandpersonallibertyunder
Article21.
government to look into it. He obser-
ved that the government had already
initiated the process of reviewing the
entire area of data protection by consti-
tuting a committee chaired by Justice
BN Srikrishna, a former judge of the
Supreme Court.
Justice Chelameswar divided the
issue into three questions:Is there any
Fundamental Right to privacy under the
constitution? If it exists, where is it
located and what are the contours of
such right? While overruling MP
Sharma and Kharak Singh by giving
similar reasoning as Justices
Chandrachud and Nariman, he observed
that the former failed to examine
whether the right of privacy is implied
in any other fundamental right guaran-
teed under Articles 21, 14, 19 or 25.
He also observed that the expression
liberty in Article 21 was wide enough to
take in not only various freedoms enu-
merated in Article 19(1) but also many
others which are not enumerated.
INDIVIDUAL’S ENTITLEMENTS
Justice Bobde while overruling the MP
Sharma and Kharak Singh judgment,
observed that in the former case, the
conclusion was arrived at without en-
quiry into whether a privacy right could
exist in our constitution and it also
wrongly interpreted the United States
Fourth Amendment. In his view, every
individual is entitled to perform his
actions in private. In other words, he is
entitled to be in a state of repose and to
work without being disturbed, or other-
wise observed or spied upon. The enti-
tlement to such a condition is not con-
fined only to intimate spaces such as the
bedroom or the washroom, but goes
with a person wherever he is, even in a
public place. He also observed “that it is
not possible to truncate or isolate the
basic freedom to do an activity in seclu-
sion from the freedom to do the activity
itself. The right to claim a basic condi-
tion like privacy in which guaranteed
fundamental rights can be exercised
must itself be regarded as a fundamen-
tal right. Privacy, thus, constitutes the
basic, irreducible condition necessary
for the exercise of ‘personal liberty’ and
freedoms guaranteed by the Constitu-
tion. It is the inarticulate major premise
in Part III of the Constitution.”
Justice Nariman held that the right
to privacy is a fundamental right and
bifurcated it into three aspects:
i) Privacy that involves the person i.e.
when there is some invasion by the
State of a person’s rights relatable to
his physical body, such as the right to
move freely
ii) Informational privacy which does not
deal with a person’s body but deals with
a person’s mind, and therefore recognis-
es that an individual may have control
over the dissemination of material that
is personal to him. Unauthorised use of
such information may, therefore, lead to
infringement of this right
FIGHT FOR INDIVIDUAL RIGHTS: Aruna
Roy and others filed a PIL in 2013 against
linking of Aadhaar Scheme to various welfare
schemes
On July 13, the Supreme Court
ruled that a constitution bench
address the question of whether
Indian citizens have the right to pri-
vacy, and if Aadhaar breaches it
July 18: A nine-judge constitution
bench of the SC was set to hear a
challenge to various issues sur-
rounding Aadhaar with the main
focus on privacy issues
A total of 22 cases were tagged by
the SC be heard by the bench
The challenges were—making
Aadhaar mandatory for social wel-
fare benefits, infringement of right to
privacy, making Aadhaar mandatory
for filing ITRs and for obtaining and
retaining PAN etc.....
On July 26, Karnataka, Bengal,
Punjab, Puducherry move SC for
right to privacy
On August 2, hearings were
concluded
Aadhaarand
RighttoPrivacy

JusticeSanjayKaulobservedthat
technologyhasmadeitpossible
toentersomeone’shousewith-
outknockinghisdoor.Privacyis
thekeytofreedomofthought.
iii) The privacy of choice, which protects
an individual’s autonomy over funda-
mental personal choices.
However, he also observed that such
right is not absolute and subject to rea-
sonable regulations by the State to
protect its legitimate interests or pub-
lic interest.
NATURAL RIGHT
Justice Sapre said it was not possible
for the framers of the constitution to
incorporate each and every right of an
individual in Part III of the constitu-
tion and the Supreme Court had from
time to time interpreted these in a dif-
ferent manner.
He observed that “right to privacy of
any individual” was essentially a natural
right. Such right remains with the hum-
an being till he breathes his last. He also
observed that it has multiple facets and
one cannot have a straight-jacket for-
mula for it. It has to go through case-to-
case development whenever any citizen
raises his grievances.
Justice Kaul observed that the right
to privacy cannot be diluted as it is an
inherent right and is not given by some-
one but it already exists. Right to priva-
cy is available not only against the State,
but the State has to
ensure that same is not
violated by non-state
actors. Technology has
made it possible to enter
someone’s house without
knocking his door.
Privacy is also the key to
freedom of thought. A
person has a right to
think. However, he also
talked about reasonable
restrictions to this right.
CLUTCH OF PILS
This judgement was a
fallout of many PILs
filed in this regard. These included:
Justice KS Puttaswamy (Retd) and
Anr vs Union of India and Ors: Filed
first in the series of cases in 2012 by a
former Karnataka High Court judge
who challenged the government order
mandating use of Aadhaar for Mahatma
Gandhi National Rural Employment
Guarantee Act, Pension scheme, Public
Distribution System, Prime Minister’s
Jan-Dhan Yojana and LPG.
S Raju versus the Deptt of Finance
Rep by Secy: Transferred from the High
Court of Judicature at Madras in 2013,
it raised the issue of the effect of the
Aadhaar Scheme on the federal struc-
ture of the State.
Vickram Crishna and Ors Vs Unique
Identification Auth. of India and Ors:
Transferred from the High Court of
Bombay in 2013, it raised the issue of
violation of right to privacy in collection
of data under Aadhaar Scheme.
Aruna Roy and Anr vs Union of India
and Ors: Filed in 2013 against linking
of Aadhaar Scheme to various welfare
schemes.
SG Vombatkere and Anr vs Union of
LONG-DRAWN STRUGGLE: Activist
Nikhil Dey has been at the forefront of the
awareness campaign to highlight the perils
of linking Aadhaar to welfare schemes
India: Filed in 2013 against mandatory
linking of Aadhaar for filing IT returns.
Nagrik Chetna Manch vs Union of
India: Filed in 2013 against govern-
ment notification of mandating Aadh-
aar card for ration, capital subsidy,
Digital India programme, voter ID,
school admissions, etc.
Mathew Thomas Versus Union of
India Ministry of Finance: Filed in
2015, it raised the issue of data sharing
and national security posted due to
Aadhaar.
SG Vombatkere and Anr vs Union of
India and Anr: Another PIL filed by
SG Vombatkere against collection of
biometrics by private parties.
Shantha Sinha and Anr vs Union of
India and Anr: Filed in 2017, it chal-
lenged mandatory use of Aadhaar for
the government’s social welfare schemes
like scholarships, Right to Food and
mid-day meal in schools.
Though the right to privacy issue
rose from matter relating to the consti-
tutional validity of the Aadhaar Sch-
eme, even after final adjudication of the
issue, the fate of Aadhaar is uncertain.
It is evident from the above six separate
but concurrent judgments that the
efforts made by Justices Chandrachud
and Nariman in writing the judgment
have been utilised by all other judges.
Every citizen of India will be thankful
to them for gifting them a new set of
fundamental rights.
Meanwhile, the issue of whether
Aadhaar violates the right to privacy
will still have to be dealt with. None-
theless, this is a moment of triumph
and celebration of the assertion of citi-
zens’ rights. One has to hail the fight
put up by numerous activists and law-
yers who made it possible to stand up
against a dominant state. Lessons of the
past cannot easily be forgotten. The
Court is supreme and so is freedom.
—The writer is an advocate

HEN Allahabad-based
Rizwan Ahmed drop-
ped his wife, Shayara
Bano, at her parent’s
home in Kashipur,
Uttarakhand in Octo-
ber 2015, he had little inkling that in
two years she would hit the headlines of
every Indian newspaper and magazine.
She had been married for 15 years and
it was not the best of marriages—half-
a-dozen abortions, incessant dowry
demands, frequent domestic abuse and
Inalandmarkjudgment,theapexcourthasfreedthousandsof
Muslimwomenfromtheregressivepracticeofinstantdivorce
andgiventhemhopeofalifeofdignityandempowerment
By Ramesh Menon W
Liberating Verdict
Supreme Court/ Triple Talaq
UNI
CAUSE FOR CELEBRATIONS
Muslim women offering sweets to each
other in Lucknow following the
Supreme Court order on triple talaq

living with Ahmed’s threats of how he
could easily divorce Bano by repeating
talaq three times. She lived in constant
fear. Within a few days of her returning
to her parents’ home, she received a let-
ter from Ahmed. When she read the
contents, her mind went numb. It had
just three words: talaq, talaq, talaq. Her
already fragile world shattered into
pieces. Her mind raced to the past when
she was a chirpy sociology student and
life seemed promising. But it had shat-
tered to smithereens. Supported by her
brother, she decided to put up a fight.
She petitioned the Supreme Court in
February last year seeking a ban on the
practice of triple talaq. Last week, a
beatific smile lit up her face when the
top court of the country declared triple
talaq unconstitutional.
She herself was surprised at how she
mustered the courage to fight this reg-
ressive practice. But the moment she did
it, she found tremendous support from
Muslim women and feminists. Under
Islamic law, triple talaq is a process that
takes 90 days and cannot just be execut-
ed in a few seconds by repeating talaq
thrice. But Ahmed had resorted to the
triple talaq system that was accepted
among the Muslim community in India,
where just uttering these three words
was enough for instant divorce.
ChiefJusticeJSKhehar’sminorityjudgment
wasthatreligionisamatteroffaith,andnotof
logic.Itisnotopentoacourttoacceptanegali-
tarianapproachoverapracticewhichconstitutes
anintegralpartofreligion.
JusticeSAbdulNazeerwasalsoinminority
whenheruledthatpersonallawisprotected
underArticle25wherecourtcan’tintervene.The
minorityjudgmentstayedthedivorcepracticefor
6monthstillparliamentpasseslawtobanit.
JusticeKurianJosephheldthatmerely
becauseapracticehascontinuedforlong,that
byitselfcannotmakeitvalidifithasbeen
expresslydeclaredtobeimpermissible.
JusticeRohintanFaliNarimansaidthisformof
talaqismanifestlyarbitraryinthesensethatthe
maritaltiecanbebrokencapriciouslyandwhim-
sicallybyaMuslimmanwithoutanyattemptat
reconciliationsoastosaveit.
JusticeUULalitheldthatpersonallawisalso
lawwithinArticle13andcanbesubjectedto
fundamentalrights.Hesaidthatinstanttriple
talaqviolatesArticle14whichenshrinesequality.
“Iwelcometheverdictandsupportit.
ThisisahistoricdayforMuslimwomen.”
—ShayaraBano,themaincrusader
againstthepractice

The Quran has no mention of a pro-
cedure where instant divorce can be
granted, but Muslim clerics and the
largely patriarchal Muslim male pushed
it forward, giving it social sanction.
O
n August 22, in a landmark
395-page judgment, a five-judge
constitution bench of the Sup-
reme Court which had judges from five
different communities, termed the prac-
tice of triple talaq as void, illegal and
unconstitutional. It put a six-month stay
on this practice and said that the parlia-
ment should enact a new law. If the law
did not come into force within that peri-
od, the injunction would continue.
The judgment cited 19 Muslim coun-
tries that had abolished the practice.
Justice Kurian Joseph said that merely
because a practice had continued for
long, it cannot be made valid as it was
against the basic tenets of the Quran.
“What is bad in theology is bad in law as
well,” he said.
Undoubtedly, this would be one of
the most momentous judgments in rec-
ent years, one that will be remembered
by thousands of women who have had to
suffer because of this age-old practice.
Islamic scholar Maulana Wahiduddin
Khan said that triple talaq was not a
principle of Islam but was the ruling of
some jurists, who should no more justify
the practice. Salman Khurshid, who was
appointed amicus curiae in the case,
said: “What is sinful and bad in theology
cannot be good in law. That is why, what
is sinful cannot be part of practice.”
Despite having one of the largest
Muslim populations in the world, India
had allowed a practice that is not preva-
lent in Muslim countries like Indonesia,
Pakistan, Turkey, Iran and Afghanistan.
Asmita Basu of Amnesty India said that
triple talaq was a discriminatory prac-
tice that violated women's right to equa-
lity and had devastated the lives of many
Muslim women.
One of the fears among male-domi-
nated Muslim cultural and religious
organisations was that if the govern-
ment was allowed to have a say on triple
talaq, it would later also tamper with
Islamic personal laws. In fact, the argu-
ment that their religion was under
threat was used to instill fear in the
community. Clerics and Muslim organi-
sations went from village to village to
get women to sign saying that they had
no objection to the practice. Many who
did so were illiterate and had no idea of
the consequences. Others had no choice
SC bench asks CJI to set up an
appropriate bench to examine if Muslim women
face gender discrimination in cases of divorce, while dealing
with a case of Hindu successionLongroad
tojustice
2015
SC asks Attorney
General Mukul
Rohatgi to assist
it on the pleas
challenging con-
stitutional validity
of triple talaq,
nikah halala and
polygamy
2016
February5:
level panel on
“Women and the
law: An assess-
ment of family
laws with focus
on laws relating
to marriage,
divorce, custody,
inheritance and
succession”. It
also impleads
various organisa-
tions, including
the All India
Muslim Personal
Law Board (AIM-
PLB), as parties
March28:
SC says triple
talaq will be test-
ed on the
“touchstone of
constitutional
framework”
For the first time
in India’s consti-
tutional history,
the centre oppos-
es in SC these
practices and
favours a relook
on grounds like
gender equality
and secularism
June29:
The Allahabad
High Court, in a
verdict, stops
short of calling
the practice of
triple talaq
unconstitutional
but observes
that personal
laws can’t not
override consti-
tutionally guar-
anteed rights of
individuals
December9:
October7:
A five-judge Supreme Court constitution
bench headed by Chief Justice JS Khehar
has been hearing a clutch of pleas chal-
lenging the validity of triple talaq,
polygamy and nikah halala practices
among Muslims.
October16:
in the suo motu
matter
SC asks centre
to file a copy of a
report by a high-

as they were so scared of how the men
in their families would react. It was then
left for the educated Muslim women to
carry on the fight.
Among them were gutsy women like
Zakia Soman, Noorjehan Niaz, Afreen
Rehman and many others. They rallied
behind Bano, started their research,
mobilised victims on one platform and
found new strength. Zakia Soman set up
the Bharatiya Muslim Mahila Andolan
in 2007 with Noorjehan Niaz and docu-
mented thousands of heart-rending sto-
ries of nearly 30,000 Muslim women,
most of whom were victims of triple tal-
aq. Both Soman and Niaz told India Le-
gal that they had made it their life’s mis-
sion to ensure a better, equitable future
for Muslim women and stop the patri-
archy of Muslims organisations domi-
nated by men. There are only 40
2017
SC says a five-
judge constitu-
tion bench would
be set up to hear
and decide the
challenge on the
above three
issues
AIMPLB tells SC
that these pleas
are not maintain-
able as the
issues fall out-
side judiciary’s
realm
February16:
March27:
The centre tells
the apex court
that triple talaq,
nikah halala and
polygamy impact
the social status
and dignity of
Muslim women
and deny them
fundamental
rights guaran-
teed by the con-
stitution
April11:
Raising the triple
talaq issue, Nare-
ndra Modi says
justice should be
done to Muslim
women. AIMPLB
warns those who
give talaq without
following Sharia
(Islamic law)
will face social
boycott
April16:
BSP chief
Mayawati says
that SC should
decide the issue
of triple talaq
as per the consti-
tution
April14:
Rohatgi says
triple talaq should
not be allowed as
women have as
much right as
men and cannot
be treated on a
lower pedestal
April18:
UP CM Yogi
Adityanath says
politicians main-
taining silence on
triple talaq are
equally responsi-
ble as those
practising it; he
draws parallels to
the disrobing of
Draupadi in the
Mahabharata
April17:
The Delhi High
Court dismisses
a plea seeking to
stop the practice
of triple talaq on
Hindu women
married to
Muslim men
halala and
polygamy
April21:
SC says it would
determine if triple
talaq is in line
with the constitu-
tion and funda-
mental to Islam
May11:
SC says the
practice of triple
talaq is the
“worst” and “not
desirable” form
of dissolution of
marriages
among Muslims
May12:
May16:
SC allows Salman
Khurshid as ami-
cus curiae in hea-
ring of pleas chal-
lenging constitu-
tional validity of
triple talaq, nikah
May3:
Attorney General
Mukul Rohatgi
tells SC that the
centre will bring
in a new law to
regulate marriage
and divorce
among Muslims
if the practice of
triple talaq is
May15:
declared unconstitutional.
He also asks the court to
examine other aspects of
Muslim personal law,
including nikah halala and
polygamy
AIMPLB says triple talaq is
a 1,400-year-old practice,
and constitutional morality
and equity cannot arise
when it is a matter of faith
May17:
SC asks AIMPLB whether
a woman can be given an
option of saying “no” to
triple talaq at the time of
execution of nikahnama. A
bench headed by Chief
Justice Khehar also probes
if all Qazis can be asked to
include this condition at
the time of marriage
May18:
SC reserves verdict on a
batch of petitions chal-
lenging the constitutional
validity of triple talaq
Opposition
charges
Narendra
Modi Modi with
politicising the
triple talaq issue
even as BJP minis-
ter Swami Prasad
Maurya says
Muslim men use it
to change wives
and satisfy “lust”
April29:
“Fundamentalrightsmorevitalthanpersonallaws”
An important question in the triple
talaq case was whether perso-
nal law can override statutory provi-
sions and deprive a citizen of protec-
tion given by the constitution .
About two decades back, in a case
in which a similar question had arisen,
the Bombay High Court ruled that
personal law cannot take away the pro-
tection given to a minor Muslim girl
under the provisions of Section 363 of
the IPC. A minor girl, aged 14-15, living
under the lawful guardianship of her
parents was kidnapped by a relative
and forced to marry him. When he was
prosecuted, his defense was that the
girl had attained puberty and was free
to marry a person of her choice.
The division bench, consisting of
myself and Justice HH Kantharia, held
that while the marriage may be valid,
as soon as the girl was taken away
from the legal custody of her parents
without their consent, the offence of
removing her from lawful custody
came in. Protection granted to all
minor girls below the prescribed age
cannot be taken away in the name of
personal law. Considering that the
accused married that girl and they now
have a child, only a fine was imposed.
The Supreme Court has in the triple
talaq case, reiterated that the funda-
mental rights of a citizen cannot be
taken away by any religious practice
contrary to basic human values.
—Justice N Chapalgaonker,
former judge, Bombay High Court
—By Nikhil Pandey

women in the 301-member All India
Muslim Personal Law Board (AIMPLB).
The centre’s stand was that triple
talaq was not a basic and integral part of
Islam and quashing it would not shake
the foundation of the religion. It must
not be seen from the prism of majority
versus minority community, it said.
The Shahi Imam of Delhi’s Jama
Masjid, Syed Ahmed Bukhari, pointed
out that had the AIMPLB cared to add-
ress the problems of women who suf-
fered from the practice, the case would
not have reached the Supreme Court.
The AIMPLB had initially told the Cou-
rt that it would issue an advisory in the
marriage contract to avoid the practice.
When that did not cut any ice, it said
that those resorting to the practice wou-
ld be socially boycotted. But there was
seemingly no empathy for the women
who would suffer from the continuance
of such a practice.
The Supreme Court rejected the con-
tention of Muslim organisations like the
Jamiat Ulema-e-Hind who held that the
source of Muslim personal law was the
Quran. Arif Mohammad Khan, arguing
for the All India Women Personal Law
Board, said: “Three pronouncements of
talaq in one go is not valid and is a prac-
tice from pre-Islamic Arab era and is
not integral to Islam. The whole Shariat
law has been distorted as Shariat is the
holy Quran and not the opinion of cler-
ics. Triple talaq and nikah halala is no-
where mentioned in the Quran.”
I
t now remains to be seen if the gov-
ernment will move towards bring-
ing a Uniform Civil Code. It is
awaiting a report of the Law Commi-
ssion. In its poll manifesto, the BJP had
said that it wanted to bring in the Uni-
form Civil Code. With the triple talaq
judgment, it now seems determined to
push it through. It will use the Law
Commission’s report to make the first
move. The government has a golden
opportunity now to reform personal
laws in consultation with organisations
of all religions to make sure that equal
rights for men and women become a
reality in areas like marriage, divorce
and alimony. The government can grab
that window of opportunity to unleash
progressive reform.
Bano’s battles are not over. She now
proposes to fight for the custody of her
two children, Irfan, 13 and Muskan, 11.
Then, she wants to complete her MBA
from Moradabad University and stand
on her feet to give a new life to her chil-
dren. Many other women like her now
have a chance to dream again.
Thisjudgmentwill
godowninhistory
asalandmarkone.
Iamhappythe
SupremeCourt
hasinterpreted
theQurancorrectly.It’saslapforthose
whoweretryingtowieldpowerover
other’slives.Nowthegovernmentshould
makealawforusliketheHinduMarriage
Actsothatwetoocanprogress.
—ShaistaAmbar,AllIndiaMuslim
Women’sPersonalLawBoard
Chairperson
Thisverdictisa
game-changer
becausetilltheday
whentheSCruling
came,therewas
confusionon
whetherpersonallaws—essentiallyofreli-
giousnature—canbetestedontheanvilof
Chapter3(fundamentalrights)oftheconsti-
tution.ThewordingusedbytheSCBenchis
veryclear–instanttripletalaqisarbitraryand
thereforeunconstitutional.
Thisverdictcanbeappliedtoothermat-
tersofpersonallawlikepolygamyorhalala.
NowtomorrowifIgotocourtandcitingthe
aspectsofarbitrarinessandunconstitutionali-
tysaythatpolygamyshouldbestruckdown,
howwillthecourtnotentertaintheplea?
—ArifMohammadKhan,ministerinthe
RajivGandhigovernmentwhoquitoverthe
government’sstandintheShahBanocase
IcongratulatetheSupremeCourt.Thisisjustthe
beginning.Wewantthatthereshouldbenocom-
pulsiontowearburqa,thatMuslimwomencome
forwardinsports,thattheycanwearshorts.
—BJPleaderSubramanianSwamy
Notonlydowenotagree
withthejudgment,we
thinkthisisadirect
assaultonthefundamen-
talrighttopracticereli-
gion.Therepeatedrefer-
encetonikahhalala,
polygamyetchaveraised
apprehensionsthatthere
maybemoresuchinter-
ferenceontheanvil.
—MaulanaMahmood
Madani,JamiatUlama-
i-HindgeneralSecretary

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DeathbyNegligence

Supreme Court/ BCCI
constitution by September 19 as per its
order of July 24. The Court also issued
notices to CK Khanna, the acting presi-
dent of the Board, Amitabh Chaudhary,
secretary and Anirudh Chaudhary, the
treasurer, asking them to be present in
person before the Court on that day.
The Board is supposed to be under
the supervision of the Court-appointed
Committee of Administrators (CoA), but
it has been playing hard to get for a long
time and dodging many critical issues.
Recently, its former president, N Srini-
vasan, who was ousted from the Board
amid the IPL spot-fixing scandal, sud-
denly attended a special general body
meeting as an invitee of a member. This
infuriated the CoA and it complained to
the Court through amicus curiae Gopal
Subramanian, saying that not only had
the Board not implemented any of the
Lodha Committee’s recommendations,
but it was far from even formulating a
draft constitution.
In its order of August 23, the Court
laid special stress on the draft constitu-
tion, the foundation on which the new
BCCI has to be built.
Shape Up
or Ship Out
HE unwillingness of the
Board of Control for Cricket
in India (BCCI) to comply
with the directives of the
Justice RM Lodha Commi-
ttee has invited the Supreme
Court’s censure. On August 23, a bench
of Justices Dipak Misra, AM Khan-
wilkar and DY Chandrachud ordered
the BCCI to fra-me and submit its draft
TSHOW OF DEFIANCE
Even after a year, the BCCI has
not implemented the recommen-
dations of the Committee of
Justice Lodha (in grey tie)
UNI
TakingaseriousnoteoftheBoard’slackofcompliancewith
itsdirectives,theapexcourthasorderedittoframeand
submititsdraftconstitutionbySeptember19
By Sujit Bhar

viewing non-implementation by office
bearers quite seriously, therefore the
necessity to call the office bearers to co-
urt. I hope the office bearers understand
the gravity of the matter now and imple-
ment the reforms at the earliest.” In
court, Justice Misra said: “It is submit-
ted by amicus curiae Gopal Subram-
anium and advocate Parag Tripathi,
appearing for the Committee of Admi-
nistrators, that none of the recommen-
dations of the Justice Lodha Committee
has been followed.” However, senior ad-
vocate Kapil Sibal, who is appearing for
the Board, said he held a contrary view.
These are some of the recommenda-
tions of the Board:
No politicians and/or bureaucrats in
the hierarchy. BJP’s Anurag Thakur
defied this stricture for a long while.
Ultimately, he was not only forced to
leave, but had to tender an uncondition-
al apology to the Court to avoid con-
tempt proceedings. The BCCI’s argu-
ment was that it was necessary some-
times to have bureaucrats and politi-
cians in its fold.
Age cap of 70 years: The Board has
shown a lot of practical benefits in keep-
ing old office-bearers. It said that if
implemented, many associations and
federations would be without top lead-
ers and that their influence benefits the
sport in the long run. Also, experience
counts for a lot in sports administration
and this does not diminish with age. Sri-
nivasan was disqualified for this reason.
The Board asked how this criterion was
not implemented by the government in
electing a president or a prime minister?
One state one vote policy: This has
been diluted by the apex court, specifi-
cally because state associations and
clubs are not organized along state lines
only, and founder members have a great
say in the functioning of a federation or
association.
Like cricket, the fortunes of the BCCI
also seem a little uncertain.
The Court has been soft on the Board
officials, even going to the extent of say-
ing that the Lodha Committee recom-
mendations should be implemented as
far as “practicable”. However, at the July
26 special general meeting, the Board
refused entry to its CEO, Rahul Johri.
Johri is a CoA-appointee and the Board
wanted only its members present.
This further soured relations betw-
een them and CoA chairman Vinod Rai
reacted angrily to this. However, all is
not well within the CoA either as it has
been rocked by differences and resigna-
tions. There is talk of Rai’s manner of
functioning which has rubbed some the
wrong way. The Committee was formed
with Rai, former Indian cricket captain
Diana Edulji, historian and cricket buff
Ramchandra Guha and former manag-
ing director and CEO of IDFC Limited
Vikram Limaye. With Rai being a for-
mer Comptroller and Auditor General of
India and the others also commanding
respect, the Committee was supposed to
be well-rounded.
While Guha resigned in May citing
injustice in the way former India coach
Anil Kumble was humiliated by captain
Virat Kohli and the selection committee,
Limaye joined as the head of the Natio-
nal Stock Exchange. Edulji too has not
been comfortable in her role as a super
administrator and had hit out against
the Board’s “misogynistic” ways. People
have said that the CoA is actually a one-
man committee comprising of Rai.
H
owever, Rai has the backing of
the apex court, and it has laid
down strict guidelines for the
CoA to follow. In summoning the BCCI
officials, the Court has shown extraordi-
nary seriousness.
Speaking to ANI, Justice Lodha said:
“This (the summoning of the officials)
shows that the Supreme Court is now
LONELY POST: (Left) The Court-appointed
committee is headed by Vinod Rai even as
others have left the body; (right) Anurag
Thakur was ousted from BCCI over non-
compliance of orders
TheCourthasbeensoftonthe
Boardofficials,goingtothe
extentofsayingthattheLodha
committeerecommendations
shouldbeimplementedasfar
as“practicable”
wikimedia
UNI

Supreme Court/ Malegaon Case
28September 4, 2017
Purohit, along with Sadhvi Pragya Singh
Thakur, was accused of planting bombs
in communally sensitive Malegaon, in
which seven people were killed. He has
already spent nearly nine years in jail in
the case that became a cause célèbre
because of multiple factors.
He was the first serving army officer
to be arrested on a terror charge.
Because of the choice of target, a
Muslim-dominated area, the bombing
was seen as an act of revenge by a radi-
cal fringe group of the right wing—it
TheSupremeCourtgranting
bailtoLtColPurohit,accused
intheMalegaonblastcase,
exposestheinvestigation
aseithershamefully
shabbyormotivated.
By Dilip Bobb
HE news that the Supreme
Court had granted bail to Lt
Colonel Prasad Shrikant
Purohit in the Malegaon
bomb blast case last week
was merely another twist in
a tale that has already seen so many. In
fact, the two judge bench said that bail
was being given because of the contrast-
ing versions put out by Maharasthra’s
Anti-Terrorism Squad (ATS) and the
National Investigating Agency (NIA),
regarding his role in the conspiracy.
T
Blast from the Past

train was on its way to Lahore. The tim-
ing, in relation to serial blasts that took
place around the same time and target-
ed Muslims, prompted the UPA govern-
ment to club all blasts cases allegedly
involving rightwing extremists, and
handed over investigations to the NIA.
The agency subsequently approached
the Supreme Court seeking Purohit’s
custodial interrogation, not just in con-
nection with the 2008 Malegaon blast,
but also to investigate his possible role
in the Samjhauta, Ajmer and Mecca
Masjid attacks. However, the apex court
rejected NIA’s plea for custody. He was
then under custody of the ATS in con-
nection with the Malegaon blasts.
O
n September 29, 2008, a bomb
concealed in a motorcycle went
off in Malegaon in Maharasthra,
in a Muslim-dominated area, killing at
least seven people and injuring 79 oth-
ers. Following initial investigation, the
Maharashtra ATS arrested Pragya,
Purohit and a retired army Major,
Ramesh Upadhyay. In its chargesheet
the NIA said, “Purohit had proposed
theory for a separate constitution for
Hindu Rashtra with separate flag, the
constitution of Abhinav Bharat, and dis-
cussed about the formation of Central
Hindu Government against the Indian
government and put forth concept of
forming this government in exile in
Israel and Thailand.” Military
Intelligence, when approached by ATS,
stated that it was not mandated to infil-
trate civilian groups in non-conflict
zones, and there was no sanction from
the government or any of its agencies to
infiltrate Abhinav Bharat or similar
rightwing groups.
Purohit had contested this, and said
he was planted among Hindutva radi-
cals planning to retaliate against terror
attacks by Indian Mujahideen and other
terrorist organisations. He claimed he
had kept his seniors in military intelli-
gence informed of the progress of his
assignment. Senior advocate Harish
Salve made use of the glaring fac-
tual contradictions in the charge-
took place following a wave of terror
strikes by jihadi elements. It was the
first time that the phrase “Saffron ter-
ror” came into use.
Purohit, at the time of his arrest, was
working undercover for Military Intelli-
gence, and claimed that his mission was
to infiltrate radical Hindu militant gro-
ups, so he set up the Pune-based
Abhinav Bharat in 2006.
Militant Hindu groups like Abhinav
Bharat were also suspected to be behind
similar bomb blasts in the Ajmer Sharif
Dargah, the Mecca Masjid in Hyderabad
and the Samjhautha Express in 2007.
Purohit was accused of obtaining the
RDX used in the blasts by diverting it
from Army supplies.
The alleged involvement of rightwing
extremists resulted in the case turning
intensely political. The then union
Home Secretary RK Singh released a list
of suspects who were associated with
the RSS.
Within a month of the arrests of
Purohit and Thakur, Hemant Karkare,
head of the ATS which was investigating
the Malegaon attack, was killed by
Pakistani terrorists in Mumbai on 26/11,
throwing the probe out of gear.
The case became murkier because of
the U-turn by investigating agencies
under successive governments. The ATS
had arrested Purohit on November 5,
2008, when the UPA was in power. At
the time the BJP and the Shiv Sena
accused the Congress of using the ATS
for political gains. In its chargesheet,
filed in 2009, the ATS slapped murder
charges against Purohit and invoked
provisions of the Maharashtra Control
of Organised Crimes Act (MCOCA). The
agency described Purohit and his associ-
ates as terrorists. The NIA took over the
case in April 2011 and, filed a supple-
mentary chargesheet in 2016, which was
after the BJP-led government had come
to power, in which all MCOCA charges
against all the accused were dropped. It
was a turnaround that expectedly gener-
ated controversy with the Congress and
the Left accusing the agency of going
soft on Hindus accused of terror acts.
The NIA, initially had launched a probe
into the Samjhauta bombings which
killed 68 people, mostly Pakistanis—the
SAFFRON TERROR
On September 29, 2008, a bomb concealed
in a motorcycle went off in Malegaon, in a
Muslim-dominated area in Maharashtra
“Purohitgetsbail.Itwas
expectedasthepresentBJP
governmentisprotectingallthe
accusedconnectedwithRSSin
allbombblastcases.”
—DigvijayaSingh
youtube

sheets filed by the ATS and the NIA and
informed the Supreme Court that
Purohit, as part of military intelligence,
had covertly infiltrated into “Abhinav
Bharat” and attended their meetings to
gather counter intelligence and had kept
his seniors informed about it. “If he was
part of the conspiracy, why would he
inform his superiors?” Salve asked. The
bench also took note of the develop-
ments that took place after the BJP-led
NDA came to power at the Centre,
importantly the 2016 supplementary
chargesheet by NIA dropping MCOCA
charges against all accused and the
retraction of statement of witnesses
leading to a clean chit for co-accused
Pragya Thakur, a known RSS supporter
and activist. It was her motorcycle that
was used in the Malegaon blast. Earlier,
the NIA had said there were “several
incriminating circumstances” against
Purohit, which proved his “deep involve-
ment and complicity” in the 2008
Malegaon blast case.
S
uch radical U-turns, and the
announcement of bail, triggered
the expected reactions. Congress
leader Digvijaya Singh tweeted: “Purohit
gets bail. It was expected as the present
BJP government is protecting all the
accused connected with RSS in all bomb
blast cases.” The Congress also targeted
the government for two extensions
granted to NIA chief Sharad Kumar.
Spokesman Manish Tewari said: “It is
surprising the government has not been
able to find a single officer to head the
NIA... repeated ex-tensions have been
frowned upon by the Supreme Court.” In
fact, in June, 2015, The Indian Express
quoted the Special Public Prosecutor in
the case, Rohini Salian, as saying the
NIA had instructed her to “go soft” on
the accused.
What seems to have gone in Purohit’s
favour is the fact that the army still lists
him as a serving officer. For the time he
was in custody, he was still getting 75
per cent of his salary and allowances. He
is technically “suspended,” but there has
been no talk of a court martial or dis-
missal. The Army had initially conduct-
ed a court of inquiry against Purohit,
without following it up with the summa-
ry of evidence (framing of charges) and
court martial (the trial). After his
release, Purohit thanked the army for
having backed him. “It has been the tra-
dition and ethos of the Army not to let
down its men,” he said. He was even
given an army escort from jail to the
Colaba Military Station where he will be
posted, although military authorities
said this was because there was a threat
to his life. The army itself has clouded
the issue of Purohit’s involvement with
contrasting stands. Initially, it said that
Military Intelligence did not have a brief
to infiltrate civilian groups in non-con-
flict zones. His wife Aparna has always
contradicted this and pushed for the
NIA to be given the Court of Inquiry
(COI) report from army headquarters
which examined Purohit’s role. Then
Defence Minister Manohar Parikkar
asked the army to comply and the COI
report was handed over. It seemed to
confirm that Purohit had kept his sen-
iors in the loop regarding his activities
and, more importantly, stated that mili-
tary intelligence officers can infiltrate
civilian groups if they perceive a threat
to national security.
Whatever the final verdict, the
case has already developed into a spy
thriller and a mystery which extends to
the highest reaches of the government.
Was Purohit really an undercover ope-
rative tasked with infiltrating groups
like SIMI, Indian Mujahideen, Naxalites
and Hindu militant groups by Military
Intelligence? Or, as Maharashtra’s
ATS seems to believe, a conspirator in
acts of terror.
Sadly, the contrasting findings of two
investigating agencies, and the political
colour the case has acquired, means that
the truth will remain buried, along with
those who died in Malegaon.
“SoniaandRahulmust
apologiseforindulginginthe
politicisationofterrorandits
attemptstodefamethe
Hinducommunity.”
—BJPspokesman,GVLNarasimhaRao
WHERE’S THE JUSTICE?
Even in custody, Purohit was receiving
75 percent of his salary and allowances
30September 4, 2017
Supreme Court/ Malegaon Case
ddnews.gov.in

Courts/ DDCA Case / Defamation
HE Delhi High Court on
August 23 issued a notice to
Delhi Chief Minister Arvind
Kejriwal in an application
moved by Union Finance
Minister Arun Jaitley alleging perjury
by him in the ongoing defamation case.
In the application it has been pointed
out that Kejriwal made false and incor-
rect statements under oath wherein he
denied giving instructions to senior
advocate Ram Jethmalani to use
derogatory and objectionable language
during cross-examination.
Jethmalani had called Jaitley “a
crook” in court, after which the latter
filed another defamation case against
Kejriwal in addition to an earlier one.
Jethmalani had stated before the Court
that he had the consent of his client for
making such a reference, while Kejriwal
submitted that he gave no such instruc-
tions to the nonagenarian lawyer.
Post the controversy, Jethmalani and
Kejriwal had a fall-out and the lawyer
stated that he would not represent the
Delhi CM in future. Jethmalani also
wrote an open letter to the Delhi CM in
which he revealed that the latter had
used even worse language while refer-
ring to the finance minister.
PERJURY
The application under Section 340 of
the CrPC alleging perjury committed by
Kejriwal states: “Defendant No 1 (Arv-
ind Kejriwal) has no respect for the dig-
nity of his Hon’ble Court and the proc-
ess of law as he has made a false and
untrue statement under oath in order to
defeat the end of justice…. A blatant fal-
se and dishonest statement under oath
by such a high functionary must attract
severe and stringent punishment.”
The application cited Jethmalani's
interview to the media and comments
made on his personal blog, reiterating
his earlier statement that he had inst-
ructions from Kejriwal to use the words.
In his application, Jaitley said that on
July 28, Jethmalani wrote a letter to
Kejriwal and copied it to the Union
minister stating he had not received a
reply from the CM to his July 20 letter.
According to the application, in the
July 20 letter to Kejriwal—who had
denied instructing the senior advocate
to use derogatory words against Jaitley
in court—Jethmalani had said “ask your
conscience how many times you used
the word...” The High Court had on July
26 asked Kejriwal not to put scan-
dalous” questions to Jaitley during
cross-examination in the defamation
suit filed by the Union minister.
Senior advocates Rajiv Nayar and
Sandeep Sethi, appearing for the Union
minister, argued that Kejriwal’s reply
opens him up for criminal proceedings
for making an alleged false statement
in an affidavit. The Court sought Kej-
riwal’s response to the application by
December 11.
On May 17 this year, Jaitley and
Jethmalani clashed in the Delhi High
Court with the Union minister taking
strong objections to a word that
Jethmalani used in his cross-examina-
tion. After Jethmalani said that he used
the word on instructions from Kejriwal,
Jaitley then filed a `10 crore defamation
suit. Kejriwal denied instructing Jeth-
malani to use the objectionable words.
In the hearings so far, Jaitley has
claimed that the defamatory statement
made by the AAP leader has adversely
affected his reputation and the allega-
tion regarding financial bungling in the
Delhi and District Cricket Association
(DDCA) was false. Jaitley told the Court
that the statement made by the accused
that he and his family had a pecuniary
interest in the company given charge for
the construction and renovation of
Ferozshah Kotla stadium in Delhi was
per se false and defamatory.
Trouble for Kejriwal
TheDelhiCMfacesperjurychargeswithUnionMinisterJaitley
allegingthattheformermadefalsestatementsunderoath
By India Legal Bureau
T
TRADING CHARGES: (L-R) Chief Minister
Arvind Kejriwal, Union Finance Minister Arun
Jaitley and eminent lawyer Ram Jethmalani

Courts/ Ram Rahim Case
32September 4, 2017
the official claim of the Dera, his follow-
ers number 60 million or six crore. Such
is the blind devotion among his devotees
that they are willing to go any distance
for a mere glimpse of him.
None of the followers interviewed
said what they would do if he was con-
victed but that was obvious to all, except
perhaps, the government. It not only
turned a blind eye to the gathering of
thousands of his devotees but actually
paved the way by ensuring safe passage
for them to a site near Tau Devi Lal
Dera Chief Holds
States to Ransom
WithaCBIcourtpronouncinghimguiltyofrapingtwosadhvis,violencehaseruptedashis
followersgoontherampage.WhywastheHaryanagovernmentcaughtnapping?
By Vipin Pubby in Chandigarh
N a shocking display of violence,
followers of Dera Sacha Sauda chief
Gurmeet Ram Rahim Singh went
on the rampage after a CBI court in
Panchkula convicted him for the
rape of two women followers bet-
ween 1999 and 2001. The police shifted
him to a specially created jail in Rohtak
via special chopper. He now faces a
minimum of seven years in jail.
Already, many have been killed and
scores injured. Curfew was imposed in
Panchkula and Sirsa, and in several
parts of Punjab, the army was called
out. Violence was also reported in Loni
and Anand Vihar in Delhi and pro-
hibitory orders issued. It was obvious
that the Manohar Lal Khattar govern-
I
NO ROAD TO SALVATION: (Left) Violence
broke out in Panchkula and other parts of
North India; (Right) Dera chief Gurmeet Ram
Rahim’s rise is an amazing story
ment in Haryana was caught napping
despite all indications of violence, as
over 1.5 lakh followers of the Dera chief
gathered at Panchkula before the ver-
dict. Either there was complicity or the
state government was inept and let the
situation come to a boil.
So what makes a rape convict such a
powerful force that his followers ignore
his crime and take the law into their
hands? The Dera Sacha Sauda website
calls the accused Saint Dr Gurmeet Ram
Rahim Singh Ji Insan. His followers
address him as pitaji (father) or guruji.
The Dera Sacha Sauda chief’s word is
law for his followers and they feel no
compunction in sprawling themselves
on the ground that he has tread. As per
UNI

India Legal 04 September 2017

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India Legal 04 September 2017