India's top court delivers landmark judgments in CJI Dipak Misra's final week

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
October 8, 2018
In his final week as chief justice, Dipak Misra presides
over a flurry of important judgments, headlined by the
Aadhaar verdict, that are of profound significance for
the future of the country and its citizens
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ELIVERING the keynote address at the
Indian Law Institute earlier this year,
Justice DY Chandrachud of the Sup-
reme Court took the view that India
needed to rethink the power of dissent.
He added that there was perhaps something ab-
out Indian culture that “made one want to acco-
mmodate rather than dissent”. Now, in the land-
mark judgment by a five-judge Constitution Ben-
ch on the Aadhaar Act, his was the lone dissent-
ing voice, but one that took a more liberal view
and made some valid, insightful observations (it
was also a rare moment in Indian judicial history
that a dissenting judgment had been delivered in
a bench presided over by the Chief Justice). In
that same speech, Justice Chandrachud listed the
three most powerful dissenters in the history of
the Indian judiciary—Justice Saiyid Fazl Ali,
Justice Subba Rao and Justice HR Khanna. He
could have added a fourth: Justice Jasti
Chelameswar, who retired from the Supreme
Court last June. In the apex court, he was called
the “Chief Dissenter”. He was the only one to
speak against the existing Collegium system
which according to him was “opaque and inacces-
sible both to public and history, barring occasion-
al leaks”, and opined that transparency was
important for constitutional governance. He went
on to boycott meetings of the collegium.
Historically, however, Justice Khanna will be
remembered as the Greatest Dissenter.
In 1976, at the peak of Indira Gandhi’s
Emergency, four judges of the Supreme
Court had held that even the right to
life was suspended during a state of
Emergency. The lone dissenting
voice in the famous habeas corpus
case, ADM Jabalpur vs Shivkant
Shukla, was Justice Khanna’s. It
cost him elevation to the chair of
chief justice of India, and his judicial
career. In his now immortal dissenting
judgment which established the
power of dissent, he wrote: “A dissent in the court
of last resort (quoting the great American judge,
Charles Evan Hughes) is an appeal to the brood-
ing spirit of the law, to the intelligence of a future
day when a later decision may possibly correct
the error into which the dissenting judge believes
the court to have been betrayed.” Similarly, in the
case of AK Gopalan vs State of Madras, where the
Preventive Detention Act IV of 1950 was being
challenged, Justice Fazl Ali dissented from his
brother judges and said all the fundamental
rights enshrined in the constitution do not act as
separate codes unto themselves, and have to be
read together as they overlap. His reading of the
fundamental rights is now an established process.
Then there was Justice Subba Rao’s dissenting
voice in the 1963 case of Kharak Singh vs State of
Uttar Pradesh relating to surveillance by the
police. In his dissenting judgment, Justice Rao
declared that the right to privacy “is an essential
ingredient of personal liberty”. In 2017, 55 years
later, the Supreme Court in a historic judgment
held that right to privacy was a fundamental right
under the Indian Constitution, vindicating Justice
Rao’s dissenting view. It was one instance when a
previous dissent was used to initiate a change in
the law through a majority opinion. Another
was when in holding that privacy is a fundamen-
tal right, the Court also held that habeas corpus
had been wrongly decided, vindicating Justice
Khanna’s dissenting view. Significantly, each
of the three dissenting views was on vital ques-
tions of civil rights and the need for a legal bul-
wark against the expansion of State power
against the individual.
At its heart, a dissenting view reinforces the
value of free speech and provides the public a
broader canvas on which to analyse the majority
judgment, as long as the dissenting view is infor-
med, persuasive and judicious, as in the case of
Justice Chandrachud on Aadhaar and the three
famous dissenters. A majority opinion may estab-
lish a binding law but a dissent provides a demo-
cratic and often liberal alternative. The right to
dissent is the most important tradition in the
court of law, a periodic reminder that the Indian
Constitution is a collective effort of great minds
and liberal thought, and needs to be kept alive at
all costs.
THE MINORITY REPORT
Letter from the Editor
D
| INDIA LEGAL | October 8, 2018 3
Adissentingviewreinforcesthevalueoffreespeechandprovidesa
broadercanvasonwhichtoanalysethemajorityjudgment,solongasthe
dissentingviewisinformed,persuasiveandjudicious,asinthecaseof
JusticeChandrachudonAadhaarandthethreefamousdissenters.

ContentsVOLUME XI ISSUE47
OCTOBER8,2018
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Swansong
In his last week as the nation’s chief justice, Dipak Misra presided over a flurry of impor-
tant judgments, including the Aadhaar verdict, that will profoundly impact citizens
LEAD
10
Judge Not
Our Assets
Officers belonging to the lower judiciary
are agitated over the Delhi High Court’s
decision to closely examine reports
submitted by them on property and
other transactions
20
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Won’t Pay REGULARS
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Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: ANIL SHAKYA
Delhi Durbar......................6
Ringside............................8
Courts ...............................9
Media Watch ..................49
Satire ..............................50
The ill-timed merger of three troubled
public sector banks—Vijaya Bank, Dena
Bank and Bank of Baroda—is indicative of
kneejerk policymaking and will result in
massive losses to shareholders
STATES
COLUMN
46
Shivraj’s Fu-Tile Overture 40
The Madhya Pradesh government’s move to have tiles embossed with images
of the prime minister and the chief minister in housing units has been shot down
Since February, 12 death sentences have been handed out to minors’
rapists. Are due processes of law being followed in convicting them?
32Hear ’Em, Don’t Hang ’Em
What’s Paid News?
The Election Commission has contended that repeated laudatory
reports of a candidate’s achievements fall in this category
26
FOCUS
GLOBALTRENDS
Pak’s “Anti-Incumbent” JudiciaryOmertà and
the Church
Franco Mulakkal, India’s first
rape-accused bishop, has
been sent to jail but the
Catholic Church is leaving no
stone unturned in drumming
up support for him and
silencing protesters
22
RELIGION
With the courts
ordering the release
of Nawaz Sharif and
his daughter,
instances of justices
adjudicating on
political contests
have once again
come to the fore
37
LEGALEYE
SPOTLIGHT
Manual scavenging is banned in India, but the law is flouted with impunity
and sewer cleaning continues rampantly, leading to thousands of deaths
28Dying to Keep Cities Clean
EDUCATION
The Delhi High Court upholds the state government’s plan to put CCTVs
inside classrooms, but are teachers and parents happy with the move?
34Watch over Our Children
Kerala’s New
Safety Hazard 42
Flex boards are the latest rage, but the
Kerala High Court has ordered many of
these to be removed as they cause road
mishaps and are not biodegradable
Bengaluru’s Killer Potholes 44
The Karnataka High Court has stepped in to curb this menace which took 593
lives in the Garden City last year and has pulled up civic authorities

6 October 8, 2018
An inside track of
happenings in Lutyens’ Delhi
Officers in the CBI have seen a sudden,
sharp slowdown in the probes they have
been assigned. The reason is the open
battle between the two top officials in the
agency, Director Alok Verma (right), and
his number two, Special Director Rakesh
Asthana (far right). The battle has been
simmering for a while but is now out in the
open after the agency’s PR wing said it
was probing six cases of alleged corrup-
tion involving Asthana. It may seem like a
one-sided battle since Asthana is known
as the blue-eyed boy of the prime minis-
ter—he comes from Gujarat and served
under Modi when he was CM and Astha-
na headed the Godhra case. In fact,
Asthana was brought in by this govern-
ment and made special director, with the
intention that he will take over the CBI
when Verma retires early next year.
Asthana had recently complained to the
Central Vigilance Commission that his
boss was trying to intimidate officers in
the agency. Verma, in turn, has targeted
Asthana for corruption. The latest round of
allegations could prove crucial in the bat-
tle—the cases being investigated involve
Gujarat-based Sterling Biotech and the
Sandesara brothers, the latest in the list of
absconding businessmen who owe banks
huge amounts of money—`5,000 crore, in
this case. The CBI raids on Sterling
Biotech and its owners unearthed a diary
which, allegedly, has entries in Asthana’s
name. The Opposition is using the
Sandesara brothers to target the Modi
government, which may have given Verma
the courage to take on his powerful rival.
INTERNAL AFFAIRS
The BJP has made its fight against
corruption the cornerstone of its poll
campaign and outreach to the voting
public. That is being chipped away
by allegations of crony capitalism, the
Rafale deal with Anil Ambani being a
case in point. Now, the Modi govern-
ment faces another embarrassment
in what is being called “The Rajan
List”. The PMO has been issued a
notice by the Lok Sabha’s Estimates
Committee to answer to parliament
on the list issued to them by former
RBI governor Raghuram Rajan (far
left). His letter had flagged high-pro-
file cases of Non Performing Assets
(NPAs) and asked for a “coordinated
investigation”. The Committee is de-
manding answers on the action taken
by the PMO so far. What makes it
more embarrassing for the PM is that
the committee is headed by Murli
Manohar Joshi, the veteran BJP
leader (left). The list has names of
corporate entities which took sub-
stantial loans from banks and failed
to repay them after fraudulently divert-
ing the money for other purposes
(Vijay Mallya, Nirav Modi, Jatin Mehta
and Nitin Sandesara). Rajan had
requested for a multi-agency probe.
Some names belong to those known
to be close to the powers-that-be.
Joshi’s committee is looking at any
lapses by the government on NPAs.
In the note, Rajan had said he was
“unaware” of action taken against
those he had listed.
THE RAJAN HIT LIST
Former Jawaharlal Nehru
University Students Union
office-bearers Kanhaiya
Kumar, Shehla Rashid Shora
and Umar Khalid have emer-
ged as hugely polarising youth
icons; loathed by the BJP-led
right-wing and loved by the
secular, progressive liberals.
Recently, Lalu Prasad Yadav’s
RJD indicated that Kanhaiya
Kumar could be fielded as the
joint candidate of the “maha-
gathbandhan” from Bihar’s
Begusarai Lok Sabha seat,
held currently by BJP’s Bhola
Singh, in the general election
due next year. Kumar is likely
to contest on a CPI ticket but
with the backing of the grand
alliance constituents, RJD,
Congress, Jitan Ram Manjhi’s
HAM (S) and Sharad Yadav’s
Loktantrik Janata Dal. Rum-
ours are now rife that Shehla
Rashid Shora may be the next
in line to jump into the elec-
toral fray. Rashid, sources say,
is keen on joining a main-
stream party from Kashmir, her
home state. The Congress and
Omar Abdullah’s National
Conference (NC) have been
reaching out to her. This has
irked Rashid’s senior com-
rades in the Left parties who
prefer that she stay within the
ranks even if she wants to
contest the assembly or Lok
Sabha polls. The Congress
and the NC have indicated to
Rashid that she could be field-
ed from a “safe” assembly
seat whenever elections are
called in J&K. The possibility
of her nomination as a mem-
ber of the state’s legislative
council or even a ticket for the
Lok Sabha polls is also not
ruled out. It’s only a matter of
time before Umar Khalid, too,
is courted by the Congress or
other opposition parties in
Delhi, or his native state,
Maharashtra, with an offer to
take the electoral plunge.
YOUNG TROIKA
RISING

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Delhi
Durbar
Here’s a question the University Grants
Commission (UGC) could have circulated
among the higher education institutions it
oversees: Why should a government-run
nodal body, a regulator of higher educa-
tion with the fundamental responsibility to
fund and oversee the operations of univer-
sities, reduce itself to suggesting patriotic
parades and photo-ops for students? That
directive, circulated by the UGC as sug-
gestions for celebrating “Surgical Strike
Day”, has created a storm in academic
and political circles. The circular laid down
guidelines on how to observe September
29, including talks by ex-servicemen,
parades, exhibitions and even mailing of
greeting cards! The circular added that
these activities “will also provide photo-
ops for the students”. Following the nega-
tive reaction, the UGC said that these
were not compulsory, but the fact is a cir-
cular issued by it cannot be ignored,
especially in the case of institutions receiv-
ing grants. The circular says that “the
activities undertaken may be uploaded on
the University Activity Monitoring Portal on
UGC website”. Prakash Javadekar, the
Union HRD minister insisted that it was
not compulsory but failed to answer
whether the forced patriotism was an
extension of politics in the period leading
up to the 2019 polls. The UGC Act clearly
states that “the general duty of the Com-
mission is to take, in consultation with the
Universities or other bodies concerned, all
such steps it may think fit for the promo-
tion and co-ordination of University educa-
tion and for the determination and mainte-
nance of standards of teaching, examina-
tion and research in Universities. Telling
institutions to observe “Surgical Strike
Day” is certainly not part of its mandate.
CLASSES ON PATRIOTISM
CELLPHONE
ELECTIONSThe NDA government has systematically
tried to demean the image and legacy of
the country’s first prime minister, Jawa-
harlal Nehru, and much of that has revol-
ved around the Nehru Memorial Museum
and Library and Teen Murti Bhawan (right),
his erstwhile official residence. The indirect
objective, of course, is to undermine his
remaining inheritors, namely, Sonia Gan-
dhi and Rahul. The latest round in that
battle is a letter asking the Jawaharlal
Nehru Memorial Fund to leave Teen Murti
Bhavan forthwith. The letter was sent by
the directorate of estates of the Union
ministry of urban development, headed,
ironically, by Hardeep Puri, who worked
closely with Sonia’s late husband, Rajiv
Gandhi, when the IPKF was operating
against the Tamil Tigers—Puri was number
two in the Indian embassy in Colombo
then, dealing directly with LTTE leader
Prabhakaran. The Fund, which operates
from Teen Murti, was established in 1964,
and is run by one of Rajiv’s closest frie-
nds, journalist Suman Dubey. Dubey, on
his part, has sent a legal rejoinder, refus-
ing to move out. The Fund basically offers
scholarships to academics, conducts an
annual lecture and organises Nehru-relat-
ed functions. It is chaired by Sonia and its
vice-chairman is veteran Congressman
Karan Singh. The Nehru Memorial
Museum and Library, also housed at Teen
Murti Bhavan, has been a target of the
government for over a year, with the Modi
government seemingly determined to
bring all former prime ministers under the
Teen Murti roof. The attack on the Fund is
another arrow in NDA’s anti-Nehru quiver.
THE NEHRU FACTOR
The battle between the BJP and its
rivals in the 2019 polls could well
be won on a cellphone, or cell-
phones. The new initiative is ba-
sed on what the party calls “Cell
Phone Prabharis”. These are hand-
picked BJP workers drawn from
the party’s social media cells in
each state who are well-versed in
smartphones. In earlier days, party
representatives would have a vot-
ers’ list with addresses and hang
around at polling booths to help
voters check their names and
make a pitch for votes. Now, in the
digital age, the electoral innova-
tion, the brainchild of party
President Amit Shah and the head
of its IT cell, Amit Malviya, the
strategy has changed to a new
age one. What this means is that
there will be a Cell Phone Prabhari
for each polling booth whose job
will be to collate the cellphone
numbers of all voters. During elec-
tioneering, he/she will send BJP
campaign messages through SMS
or Facebook to all cellphones in
the constituency. Malviya will coor-
dinate the effort from Delhi and
send messages and other cam-
paign-related matter to state
heads who will pass it on to zonal
heads and via them to individual
Cell Phone prabharis.
The numbers are
staggering—every
constituency will
have an average
of 1,300 polling
booths. There
are 543 Lok
Sabha con-
stituencies. Shah
does dream big.

8 October 8, 2018
“
RINGSIDE
“The person that inspires
me to push forward des-
pite all obstacles. The per-
son that guides me to do
the right thing in life
against all odds. The per-
son that has changed me
inside out and made
me realise the power of
true love....”
—Team India skipper
Virat Kohli about his wife,
Anushka Sharma, after
receiving the Rajiv Gandhi
Khel Ratna Award
“Everyone knows about
Nana Patekar, that he has
always been disrespectful
towards women. People in
the industry know that he
has beaten actresses, he
has molested them. His
behaviour with women has
always been crude but no
publication has printed
anything about it.”
—Former Miss India and
Bollywood actor Tanushree
Dutta to a TV channel
“If policemen come here, tie them to a tree.
If policemen are thirsty and ask for drink-
ing water, give water to the dogs but not to
them. If you see injured policemen on the
road, take injured cows and buffaloes to
hospital but not them....”
—North Dinajpur BJP President Shankar
Chakraborty at a public meeting in violence-hit
Daribhit area, North Bengal
“It was a government-to-
government discussion
and I just want to refer to
what Prime Minister (Nar-
endra) Modi very clearly
said a few days ago... I was
not in charge at that time
and I know that we have
very clear rules.”
—French President
Emmanuel Macron on
the controversy surround-
ing India's Rafale deal
with France
“The judgment ended
up making our political
discourse somewhat
lopsided; and, many
believe that ‘there can
be no doubt that the
decision requires to
be overruled’.”
—Former Prime
Minister Manmohan
Singh on the “Hindutva
is a way of life” judgment
by late Justice JS Verma
of the Supreme Court
“We will never surrender
America’s sovereignty to
an unelected, unaccount-
able global bureaucracy.
America is governed by
Americans. We reject the
ideology of globalism. And
we embrace the doctrine
of patriotism.”
—US President Donald
Trump, addressing the
United Nations
General Assembly
“In the era of fake news &
paid news, latest rumours
on Patna Lok Sabha BJP
candidature—‘Nothing
official about it’. But even
if it is official how does it
matter? I welcome any
aspirant in this democratic
fight. Nothing wrong!”
—BJP MP Shatrughan
Sinha on Twitter, after
reports that the party may
not field him for the Patna
Sahib seat in the Lok Sabha
polls of 2019

Courts
—Compiled by India Legal Team
Show compliance
within a week: SC
Athree-judge bench of the Sup-
reme Court directed states and
union territories to implement, with-
in one week, its direction to give
publicity to its July 17 order. In that
order, the Court had said that
“lynching and mob violence of any
kind shall invite serious consequen-
ces under the law”. After advocate
Indira Jaising informed the Court
that several states had failed to give
publicity to the order, the Court
said: “It has to be borne in mind
that the said direction was issued
so that people would realise the
gravity of their act and the effect on
the law and order situation.” The
apex court also directed the states
and union territories, which are yet
to file their compliance reports on
the July 17 order, to do so within
one week.
SC sets up a committee for prison reforms
While hearing a matter
on inhuman conditions
in 1,382 prisons across
India, the Supreme Court
ordered the formation of a
committee on prison refor-
ms to be headed by Justice
Amitava Roy, a former judge
of the apex court. The com-
mittee’s other members will
include the Inspector Gen-
eral of Police, Bureau of Po-
lice Research and Develop-
ment, and the Director Gen-
eral (Prisons), Tihar Jail. It
will examine the problems in
prisons, from overcrowding
to availability of legal aid and
advice to convicts to issues
of remission and parole. The
Court also asked the com-
mittee to recommend steps
for the psycho-social well-
being of minor children of
women prisoners, including
their education and health.
The committee will have to
submit a report with com-
plete data and information to
the Court within one year.
Dismissing a plea challenging
the appointment of Justice
Ranjan Gogoi as the next chief jus-
tice of India, the Supreme Court
observed that the plea was devoid
of merit. The petitioner had, inter
alia, pleaded that Justice Gogoi’s
involvement in the press confer-
ence of January 12, called by four
senior judges, was “not less than
sabotage to the judicial system of
the country”. The Court rejected
the arguments and ruled that the
appointment need not be interfered
with. Justice Gogoi will take oath
on October 3 as the 46th CJI.
No need for a SIT probe, says SC
Months after the Supreme Court gave a
go-ahead to the New Delhi Municipal
Council in April 2017 for an e-auction of
Taj Mansingh Hotel, the auction was suc-
cessfully conducted on September 28.
There were two bidders in the fray—the
Tata group-owned Indian Hotels Company
Limited (IHCL) and ITC Limited. IHCL won
the auction, acquiring a 33-year lease over
the iconic property in Lutyens’ Delhi. The
lease for the property had expired in 2011
but the auction had been pending due to a
civil suit filed by IHCL against NDMC.
Tata group to retain Taj
Mansingh hotel
Plea nixed against
Justice Gogoi
In a 2:1 majority verdict, the Supreme
Court ruled that the probe against five
arrested activists (from left) Sudha Bhar-
adwaj, P Varavara Rao, Vernon Gonsalves,
Arun Ferreira and Gautam Navlakha, will
continue. It also rejected the petitioners’
demand for a Special Investigation Team to
probe the case. However, in some relief to
the activists, the Court said that the interim
orders for their house arrest will continue
for another four weeks during which time
they will be at liberty to approach the
“appropriate forum” for relief. While the
majority verdict by CJI Dipak Misra and
Justice AM Khanwilkar upheld the action of
the Maharashtra police against the activists,
Justice DY Chandrachud slammed the cops
and said that an inquiry should be initiated
against them for using the media to manip-
ulate public opinion against the arrested
persons. The activists were arrested by the
Maharashtra police for their alleged involve-
ment in the communal clashes at Bhima
Koregaon near Pune.

Lead/ Supreme Court
10 October 8, 2018
Inhisfinalweekaschiefjustice,DipakMisrapresidesoveraflurryofconstitutionally
importantjudgmentswhichcanhaveaprofoundimpactonthecountryanditscitizens
Judgment Days
CJI
Dipak Misra
Justice
S Abdul Nazeer
Justice
Ashok Bhushan
Justice
Arjan Kumar Sikri
Justice
Rohinton
Fali Nariman
Justice
Indu Malhotra
Justice
DY Chandrachud
Justice
AM Khanwilkar
Justice
Kurian Joseph
Justice
Sanjay Kishan Kaul

FTER all the waiting and
high expectations, the
Supreme Court’s verdict on
Aadhaar was along expect-
ed lines. This had been
indicated by the Court over
the last few years as it dealt with nearly
two dozen cases focusing on the various
aspects of Aadhaar.
The Supreme Court’s five-judge con-
stitution bench headed by Chief Justice
Dipak Misra said Aadhaar was constitu-
tionally valid. Others on the bench
included Justice AK Sikri, who wrote
the judgment for himself, the CJI and
Justice AM Khanwilkar; Justice A
Bhushan; and Justice DY Chandrachud,
who wrote the dissenting judgment.
From right to privacy and liberty to
its impact on income tax, banking,
schooling, social welfare schemes and its
very passage as a Money Bill, everything
about the Unique Identification Number
project had been challenged. Could the
Supreme Court, in its final call, derail a
multi-billion-dollar project involving
more than 1.1 billion people at the altar
of privacy rights guaranteed under
Articles 21 or 14 or 19(1)(d)?
The Court answered the question of
the constitutionality of Aadhaar and its
uniqueness quite emphatically in a 4:1
judgment with provisos it thought nec-
essary. So now, Aadhaar is mandatory
(under the Aadhaar Act) but not so nec-
essary for some services, absolutely out
of the reach of private companies and
schools, but still is a volition of an indi-
vidual. It is Justice Chandrachud’s dis-
senting judgment which sums it up
thing”, including mobile phones and
bank accounts, to Aadhaar till March 31,
2018. Pesky mobile phone companies
and banks kept sending ominous mes-
sages with each new deadline. Though
one is not required to submit Aadhaar
details to a bank now, it will still have to
be linked to PAN.
Meanwhile, nearly all banks have
acquired fingerprints, iris scans and
access to an individual’s Aadhaar data
base. If you have been to a bank recent-
ly, you would have been required to sub-
mit your Aadhaar number and thumb
impression, otherwise your KYC would
be noted as incomplete and transactions
stopped. Mobile companies have already
collected mountains of data which they
may have freely traded with other pri-
vate enterprises. Even if they have not,
they have it, and except for Justice
Chandrachud, no one seems particularly
A
HERE TO STAY
A woman shows her Aadhaar
card after casting her vote
unambiguously: “...since you cannot
now live in India without Aadhaar.”
At various stages of the hearing,
including the original petition challeng-
ing the validity of Aadhaar—Justice KS
Puttaswamy (retd) and Anr vs Union Of
India And Ors—and subsequent ones,
the Court had made it clear what stand
it would take. For instance, in 2013, it
had orally observed that Aadhaar can-
not be made mandatory for availing of
welfare schemes. In early 2015, it
allowed the use of Aadhaar for MGN-
REGA and later that year, for subsidies
like LPG. This opened the floodgates
for the government, which tried to
make it compulsory for everything.
Meanwhile, the centre also declared
that Aadhaar would be mandatory for
opening new bank accounts and for
transactions above `50,000 by
December 31, 2017, failing which these
accounts would be deemed invalid. A
five-judge bench on December 15, 2017,
agreed to the government’s decision to
extend the deadline for linking “every-
Aadhaarmeansuniqueandit
isbettertobeuniquethan
beingbest:SupremeCourt
By Neeraj Mishra
Reality Check
UNI

concerned about its deletion.
Shankar Aiyar, who wrote Aadhaar –
A Biometric History of India’s 12-Digit
Revolution, says: “Customers can and
should now actually ask mobile phone
companies and banks to delete their
personal data if they want to.” Private
companies are aware of the impending
crisis, but most have said that they “will
wait for government directions even
though they respect the Supreme Court”.
In the coming days, the government
may approach the Supreme Court in a
curative petition seeking explanations
on several counts. It will also have to
decide what will happen to its Digital
India project if something as rudimen-
tary as a POS machine made mandatory
at ration shops has now become redun-
dant. All banks and mobile companies
will now have to go back to their old
ways and collect KYCs as it is imperative
for the government to withdraw the link
to the Aadhaar database, granted under
the Act to select public and private
enterprises. Beneficiaries of the Jan
Dhan Yojana will have to go back to slip
withdrawals for their `500 pension.
It has already been estimated by pri-
vate companies and banks that the KYC
process which had become simple be-
cause they could just access the UIDAI
database through scanners will now
become at least seven times costlier.
UIDAI data access costs them `15 per
person. More than the expenditure, it
was the convenience of Aadhaar verifi-
cation for companies like Paytm and
mutual fund managers that will suffer.
The shortening of the KYC process had
brought an ever-expanding base of cus-
tomers to them. This could now turn
into a trickle.
“Without Aadhaar being allowed to
be used by private financial companies
and its linking to mobile phones, it will
just become a social tool,” said a CEO of
a large financial company. He now ex-
pects the government to bring in some
sort of executive order to bypass this
judgment. And it may happen soon
enough because the basic point of
Aadhaar being a constitutional reality
has been accepted.
However, Justice Chandrachud, the
lone dissenting judge on the five-judge
bench, had some very harsh observa-
tions to make and not least among them
was the one on its passage as a Money
Bill. “It amounts to a fraud on the
Constitution,” he said, clearly laying
down that Article 110 of the Consti-
tution has a wider import than the mere
whims of a Speaker.
J
airam Ramesh had, in his petition
against its passage as a Money Bill,
argued along similar lines. His
petition said: “A money bill consists of
seven provisions provided in Article
110(1) of the Constitution, including
regulation of tax and borrowing by the
government, custody of consolidated
funds of India and payments and with-
drawals from the fund, appropriation of
money out of the consolidated fund,
declaring the expenditure charged on
the consolidated fund and its increase
and receipt of money on account of the
consolidated fund.
“Aadhaar Act did not comprise solely
of management of funds of the
Consolidated Fund of India, instead it
was only a part of the Bill that included
amongst other things, the roles and
responsibilities of enrolment agencies,
requesting entities, and authentication
agencies, and the information to be
Lead/ Supreme Court
12 October 8, 2018
SC asked the Centre to bring in a
robust law for data protection as
soon as possible
Aadhaar is mandatory for filing
income tax returns and applying for
PAN
Aadhaar is mandatory for PAN
card linking
No person will be denied benefits
under social welfare schemes
because of failure of authentication
through Aadhaar
Aadhaar cannot be made manda-
tory for opening of bank accounts
and for getting mobile connections
Aadhaar is not compulsory for
school admissions
Private companies cannot ask for
Aadhaar
The apex court struck down the
provision in the Aadhaar law allowing
sharing of data on the grounds of
national security
No person’s rights can be denied
on the grounds of lack of possessing
an Aadhaar card
No child can be denied benefits of
any schemes if he or she can’t pro-
duce an Aadhaar number
Restricts the government from link-
ing Aadhaar with examinations con-
ducted by the Central Board of
Secondary Examination, National
Eligibility cum Entrance Test for med-
ical entrance and the University
Grants Commission
The court has restrained the gov-
ernment from issuing Aadhaar cards
to illegal immigrants
Regulation 27, which provides for
archiving transaction data for five
years, amended. Transaction data
should not be retained for more than
six months
Keypointsof
Aadhaarverdict
While upholding the validity of
Aadhaar, the apex court prescribed
a few conditions:
Aadhaartimeline
Jan 2009:
Planning
Commission
issues notifica-
tion on UIDAI
2010-11:
National
Identification
Authority of
India Bill, 2010,
introduced in
Parliament
Nov 2012: Justice
KS Puttaswamy
(retd) and others
file PIL in the
Supreme Court
challenging validi-
ty of Aadhaar
Nov 2013: SC
orders all states
and union territo-
ries to be
impleaded as
respondents

given to users.”
Aiyar said that bypassing the Rajya
Sabha through a Money Bill in the Lok
Sabha is irregular and undesirable, but
more important is the interpretation of
Article 110. “Was it the intention of the
founding fathers that unbridled power
be invested in a single individual—in
this case, the Speaker—for such delicate
autonomy. He is the only judge in the
bench who suggested deletion of con-
sumers’ Aadhaar data by mobile
service providers.
He also did not mince words when
he said that political parties may mine
the data from private phone companies
to profile citizens and elicit their politi-
cal views and then (mis) use it to their
advantage. He said that there appears
no institutional responsibility of the
UIDAI to protect the data of citizens in
absence of a regulatory mechanism. If
Aadhaar is seeded with every database
and access is allowed to private players,
then there are no safety guarantees.
The government has so far proceeded
single-mindedly with its plans regarding
UIDAI. It brought in the Aadhaar Act in
2016 despite the 2010 Bill still pending
in the Lok Sabha. It showed great haste
during the pendency of the suit in inter-
linking every possible financial and
social institution it thought necessary
with the Aadhaar database.
Eleven years after it was conceived,
Aadhaar is a reality that is here to stay.
matters?” This is an issue which is cer-
tain to come up soon in the apex court.
There are two other issues that
Justice Chandrachud has flagged. The
threat to privacy was on top of his mind
as he noted that mobile phones have
become an important feature of life and
their seeding with Aadhaar posed a gra-
ve threat to privacy, liberty and
March 2016:
Aadhaar (Targeted
Delivery of Financial
and Other
Subsidies, Benefits
and Services) Bill,
2016, introduced
in Lok Sabha;
later passed as
Money Bill
May 2016:
Congress leader
Jairam Ramesh
moves SC, chal-
lenging passage as
Money Bill
March 2017:
Government intro-
duces Section
139AA in Income-Tax
Act, making
Aadhaar mandatory
for PAN applications,
filing returns
June 2017:
Aadhaar made
mandatory for
opening and main-
taining bank
accounts, for trans-
actions of `50,000
or more
June 2017:
SC upholds
Section 139AA
of IT Act
Aug 2017:
SC nine-judge
bench rules
that right to pri-
vacy is a fun-
damental right
Jan 2018: SC
five-judge bench
begins hearing
Aadhaar case
Sept 2018:
SC upholds con-
stitutional validity
of Aadhaar law by
a 4:1 majority;
strikes down cer-
tain provisions
RamJanmabhoomi–Babri
Masjidtitlesuitproceedings
backontrack
Path Cleared
for Ayodhya Hearing
AVING the way for resumption
of proceedings in the long-
pending Ram Janmabhoomi–
Babri Masjid title suit, a three-
judge bench of the Supreme
Court refused to refer its 1994 Ismail
Faruqui verdict to a larger bench for fur-
ther clarification. Hearing in the title suit
will now resume on October 29.
The Ismail Faruqui verdict had been
challenged by a bunch of Muslim outfits
P

Lead/ Supreme Court
“Weagainmakeitclearthat
questionableobservationsmadein
IsmailFaruqui’scase…weremadein
contextoflandacquisition….”
—JusticeAshokBhushan
during proceedings in the title suit. The
petitioners had claimed that the top
court’s observation in 1994—that mos-
ques are not integral to Islam and thus
not essential for offering namaz—was
too “sweeping” and could influence the
verdict in the land dispute.
On September 27, by a 2:1 majority
verdict, the bench of Chief Justice Dipak
Misra and Justices Ashok Bhushan and
S Abdul Nazeer held that observations
in Ismail Faruqui were solely on the
issue of acquisition of land by the gov-
ernment and will not, in any way,
impact the outcome of the Ayodhya land
dispute. Justice Nazeer, who authored
the dissenting opinion, however, held
that whether a mosque is integral to
Islam is a matter that requires the con-
sideration of a Constitution bench, an
opinion that Chief Justice Misra and
Justice Bhushan differed with.
The majority judgment pointed out
that the contentious sentence in Para-
graph 82 of Ismail Faruqui—“mosque is
not essential part of the practice of the
religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even
in open”—is followed by the averment
“its (a mosque’s) acquisition is not pro-
hibited by the provisions in the
Constitution of India”. Justice Bhushan,
who authored the majority verdict, said
the averment that qualified the contro-
versial observation made it clear that
the remark “was confined to the ques-
tion of immunity from acquisition of
a mosque”.
For the uninitiated, it is pertinent to
put Ismail Faruqui in perspective.
Months after the demolition of the
Babri Masjid in Ayodhya in December
1992 by Hindu radicals supported by
the RSS-BJP combine, the Congress-led
central government had enacted the
Acquisition of Certain Area at Ayodhya
Act, 1993. A year later, in October 1994,
a five-judge bench of the top court had,
in M Ismail Faruqui vs Union of India,
upheld the validity of the Act, vesting
jurisdiction over the disputed land in
Ayodhya in the centre.
The above-quoted remark in Para-
graph 82 of Ismail Faruqui gave rise to a
new legal conundrum that appeared to
establish a critical legal precedent which
could determine which way the judg-
ment in the Ram Janmabhoomi–Babri
Masjid title suit could go. The said
observation—that the mosque is not
integral to Islam—has been repeatedly
used by the Hindu Right to suggest that
while the birthplace of Lord Ram cannot
be shifted to another site, a mosque with
no particular religious significance for
Muslims can be shifted as doing so will
“not affect the right to practise religion
by offering namaz in other mosques”.
Muslim groups who are party to the
title suit can derive solace from the
explicit assertion of the Court that
observations in Ismail Faruqui will not
affect the outcome of the land dispute,
which in turn will be decided on its own
merit. The stage is now set for proceed-
ings in the appeal in the communally
sensitive title suit to commence.
Open-Door Policy
HE Supreme Court on Sep-
tember 28 upheld the right of
women of all ages to offer
prayers at the hilltop temple
of Lord Ayyappa in Sabari-
mala in Kerala. A five-judge Consti-
tution bench headed by Chief Justice
Dipak Misra, in its 4:1 verdict, said that
banning the entry of women into the
shrine amounted to gender discrimina-
tion and violated the rights of Hindu
women. Hitherto, the doors of the
T
BOUND BY LAW
Rush of devotees at Sabarimala Temple
Theapexcourtbringsthecurtaindownonathree-decade-oldlegalbattleandallowswomenof
allagestoworshipatthefamedSabarimalashrineinKerala
14 October 8, 2018
UNI

Husbandisnotthemasterofwoman,assertsSCbench
Adultery: Crime No More
temples were shut to women of men-
struating age.
The verdict brings the curtain down
on several legal battles that lasted nearly
three decades. Four verdicts were writ-
ten, one by Chief Justice Dipak Misra
and Justice AM Khanwilkar, and one
each by Justices DY Chandrachud, Ro-
hinton Fali Nariman and Indu Malhot-
ra, respectively.
Justice Malhotra’s dissenting verdict
said that issues which have deep reli-
gious connotation should not be tin-
kered with to maintain the secular
atmosphere in the country. But the
majority verdict held that physiological
and biological factors can’t be given
legitimacy if they don’t pass the muster
of conditionality, meaning women and
men are equal. “Women are not lesser or
inferior to men. Patriarchy of religion
cannot be permitted to trump over
faith,” the Court said and added that
devotees of Lord Ayyappa don’t consti-
tute a separate religious denomination.
Kerala’s CPI(M)-led regime has wel-
comed the verdict though in the past,
Association filed a petition in the
Supreme Court opposing the practice
and sought the lifting of the ban. The
petition claimed that the custom violat-
ed the right to equality granted by the
constitution to all the citizens of India
and that it was discrimination based on
the gender of the citizens. The Supreme
Court then issued notices to all parties
and the matter was referred to a three-
judge bench. In 2007, the Kerala gov-
ernment, then led by the LDF, told the
Court that it favoured the entry of all
women into the temple. However, that
was overturned by the Congress-led
United Democratic Front government
later. In October 2017, the matter was
referred to a Constitution bench. In
July 2018, just before reserving the ver-
dict in the case, the apex court, after an
eight-day hearing observed that every-
one can enter Sabarimala regardless of
sex. “A woman’s right to pray was not
dependent on any law but is a
Constitutional right,” the bench had
observed, and “what applies to a man
applies to a woman as well”.
governments in the state have fre-
quently changed their stance on the
contentious issue. The minister in
charge of temple administration, K
Surendran, said that he would ask the
Travancore Devaswom Board, which
manages the sabarimala temple, to
abide by the verdict and make all
arrangements for women devotees.
B
ut the priests at the temple were
disappointed with the verdict.
Social activist Rahul Easwar,
whose grandfather was a head priest at
the temple, said that he will be filing a
review petition in the Supreme Court.
Addressing a press conference, he said:
''Our core argument is that the deity is a
celibate. The deity is the core of the
temple. The deity has a right and a soul,
and if you are going to destabilise the
soul, it will affect every temple. We
will move the Court in the first week
of October.''
The ban was first challenged in 1991
but the Kerala High Court had upheld
it. In 2006, the Indian Young Lawyers
N September 27, a five-judge
Constitution bench headed by
CJI Dipak Misra and com-
prising Justices RF Nariman,
AM Khanwilkar, DY Chand-
rachud and Indu Malhotra struck down
a 158-year-old law that held adultery to
be a punishable offence. The bench
called it unconstitutional, with CJI Mis-
ra noting that “it’s time to say that the
husband is not the master of woman”.
The bench said that unequal treat-
ment of women invites the wrath of the
Constitution. “Mere adultery can’t be a
criminal offence. It is a matter of priva-
cy. Husband is not the master of wife.
Women should be treated with equality
O
along with men,” Chief Justice Misra
said on behalf of Justice Khanwilkar
too. Most countries have abolished
adultery as a crime. “It shouldn't be a
criminal offence, other people are also
involved in it,” he said.
He said a woman cannot be asked to
consider the way society desires her to
behave. Justice Nariman, reading out his
judgment, said: “Women can’t be treated
as chattel”, while Justice Malhotra, the
lone woman judge on the bench, said
Section 497 was a clear violation of the
fundamental rights granted in the
Constitution and there was no justifica-
tion for continuation of the provision.
Justice Chandrachud in a

N an unprecedented boost for trans-
parency in the functioning of the
judiciary, the Supreme Court has
allowed live streaming of court pro-
ceedings in cases of constitutional
and national importance.
The significant verdict by a three-
judge bench of Chief Justice Dipak
Misra and Justices AM Khanwilkar and
DY Chandrachud has laid down a slew
of guidelines to be followed to ensure
that while ordinary citizens get virtual
access to the courtroom, the privacy of
litigants, particularly in sensitive mat-
ters, is not compromised.
The judgment came in response to a
bunch of petitions filed by senior advo-
cate Indira Jaising, law intern Swapnil
Tripathi and others. The verdict marked
the end of a rare case where the Court,
Lead/ Supreme Court
“Mereadulterycan’tbeacriminal
offence.Itisamatterofprivacy.Husband
isnotthemasterofwife.Womenshould
betreatedwithequalityalongwithmen.”
—ChiefJusticeDipakMisrawhile
deliveringtheverdictonadultery
concurring but separate judgment said
society had two sets of morality for sexu-
al behaviour—one for women and
another for men. “Society treating
women as embodiments of virtue leads
to things like honour killings,” he said,
adding that the archaic law was against
dignity, liberty and sexual autonomy
guaranteed under the Constitution. The
bench was unanimous that Section 497
was an arbitrary, archaic law, violative of
the rights to equality and equal opportu-
nity of women.
S
ection 497 says: “Whoever has
sexual intercourse with a person
who is and whom he knows or has
reason to believe to be the wife of anoth-
er man, without the consent or con-
nivance of that man, such sexual inter-
course not amounting to the offence of
rape, is guilty of the offence of adultery.”
Adultery was punishable by a maximum
of five years in jail or fine or both. The
Court, which held adultery as a relic
of the past, said autonomy is intrinsic
to dignified human existence and
Section 497 obstructed women from
making choices.
It was on October 10 last year that
an NRI from Kerala, Joseph Shine, filed
a petition challenging the constitutional
validity of Section 497. The matter was
referred to a Constitution bench in
January this year. The Union govern-
ment had favoured retention of this law.
It had said: “It is an action willingly and
knowingly done with the knowledge
that it would hurt the spouse, the chil-
dren and the family. Such intentional
action which impinges on the sanctity of
marriage and sexual fidelity encom-
passed in marriage, which forms the
backbone of the Indian society, has been
classified and defined by the Indian
State as a criminal offence in exercise of
its Constitution powers.” Hearings in
this case began on August 1.
With this verdict, the Supreme Court
has overturned three of its own judg-
ments where it was held that this law
was constitutionally valid. Incidentally,
the 1985 judgment, upholding Section
497, was authored by Justice YV
Chandrachud, the father of Justice DY
Chandrachud, in Sowmithri Vishnu
vs.Union of India.
Opennessislikesunlight,thebestdisinfectant,saystheapexcourt
whileallowinglivestreamingofcourtproceedings
Towards an Open Court
I
16 October 8, 2018

N a verdict that may have far-reach-
ing political and social ramifications
in future elections, the Supreme
Court has ruled that states no longer
need to collect quantifiable data on
the backwardness of Scheduled Castes
and Scheduled Tribes while granting a
quota in promotions.
The states will, however, need to
back the case for reservations with data
to show inadequate representation of
the respective SC/ST group in the
cadres, while excluding the “creamy
layer” of these communities from taking
advantage of the quota.
While declining to refer to a larger
bench its M Nagaraj & Others vs Union
of India verdict of 2006, a five-judge
Constitution bench headed by CJI
Dipak Misra ruled that the “object of
reservation is to see that backward
classes of citizens move forward so that
Letbackwardclassesmove
forwardwithothercitizens
Cast
Aside
I
the petitioners and the government
were all of the same opinion—succinctly
summed up by Justice Chandrachud
who in his concurring verdict said live
streaming will bring in “openness”
which, like “sunlight is the best disinfec-
tant”.
A
s per the broad guidelines laid
out by the Court, “only a speci-
fied category of cases or cases of
constitutional and national importance
being argued for final hearing before the
Constitution Bench will be live streamed
as a pilot project” and advance permis-
sion of the concerned Court will have to
decision”. Further, the Court said that
“there must be a reasonable time-delay
(say ten minutes) between the live
court proceedings and the broadcast, in
order to ensure that any information
which ought not to be shown, as direct-
ed by the Court, can be edited from
being broadcast”.
The three-judge bench further ruled
that until a full-fledged module and
mechanism for live streaming are
evolved, the possibility of implementa-
tion of Phase-I of live streaming can be
explored in designated areas within
the confines of the Supreme Court
via “intranet”.
be sought in writing for the purpose.
The apex court has also said that
prior consent of all the parties to the
concerned proceedings will have to be
sought for live streaming and in the
absence of unanimity, “the concerned
Court can take the appropriate
“Onlyaspecifiedcategoryofcasesor
casesofconstitutionalandnational
importancebeingarguedforfinalhearing
beforetheConstitutionBenchwillbelive
streamedasapilotproject....”
—SConlivestreamingofcases
they may march hand in hand with
other citizens of India on an equal
basis”. The verdict added that meeting
this goal “will not be possible if only the
creamy layer within that class bag all
the coveted jobs in the public sector
and perpetuate themselves, leaving the
rest of the class as backward as they
always were”.
The verdict of the five-judge bench
waters down the Nagaraj judgment
(also delivered by a Constitution bench
of then CJI YK Sabharwal and Justices
KG Balakrishnan, SH Kapadia, CK
Thakker and PK Balasubramanyan)
which had said that if the state
“wish(ed) to exercise their discretion
and make provision (for reservation in
promotions for SCs/STs), the State has
to collect quantifiable data showing
backwardness of the class and inade-
quacy of representation of that class in
RESERVATION RIGHTS
Dalit organisations protesting against the
dilution of the SC/ST Act by the centre
UNI

Lead/ Supreme Court
18 October 8, 2018
public employment in addition to com-
pliance of Article 335”.
W
hile the present Constitution
bench refused to refer the
Nagaraj verdict to a larger
bench, it held the ruling for determining
quantifiable data on backwardness was
“bad in law” and not in consonance with
the landmark 1992 Indra Sawhney ver-
dict of the apex court.
The bench, also comprising Justices
Kurian Joseph, RF Nariman (he wrote
the order), SK Kaul and Indu Malhotra,
said: “The conclusion in Nagaraj that
the State has to collect quantifiable data
showing backwardness of the Scheduled
Castes and the Scheduled Tribes, being
contrary to the nine-judge Bench in
Indra Sawhney is held to be invalid to
this extent.”
During arguments in the case, Attor-
ney General KK Venugopal, appearing
for the centre, had favoured reconsider-
ation of the Nagaraj verdict and submit-
ted that the proportion of SCs and STs
to the population of India should be
taken as the test for determining whe-
ther they are adequately represented in
promotional posts. These contentions
were, however, rejected by the Court.
The “creamy layer” exposition has so
far been largely applied while granting
(or denying) reservation to members of
Other Backward Classes (OBCs). That
the Supreme Court ruling will now
effectively make it applicable to SCs and
STs too is certain to trigger unrest
among political leaders of the communi-
ty who are already agitated over the top
court’s recent verdict that diluted the
SC/ST (Prevention of Atrocities) Act.
Union ministers and leaders from
the SC community Ramdas Athawale
and Ram Vilas Paswan, who until
recently were giving sleepless nights to
Prime Minister Narendra Modi with
their criticism of the dilution of the
Atrocities Act, have now found a new
tool to keep the pressure going on
the centre.
The leaders have already expressed
their dissatisfaction with the verdict and
could soon start blaming the Modi
regime for not adequately defending the
interests of the SC/ST community in the
top court.
OR hundreds of candidates
hoping to fight the impending
assembly elections in four
states and next year’s Lok
Sabha polls, the Supreme
Court’s verdict on barring candidates
with criminal records must have
brought relief.
In a judgment that was eagerly
awaited, a Constitution bench headed
by CJI Dipak Misra and comprising
Justices RF Nariman, AM Khanwilkar,
DY Chandrachud and Indu Malhotra
ruled that it was not going to issue an
order to disqualify candidates from con-
testing elections simply because a
charge sheet had been filed against
them in criminal offences. If convicted,
these politicians face a six-year ban
from contesting elections.
While exhorting Parliament to step
in to rein in the increasing criminalisa-
tion of politics, the Court issued several
directives to keep a check on the trend.
It said:
All candidates seeking to contest elec-
Onusonlawmakerstocheckcriminalisationwithinowntribe
Criminal Lapses
F
tions must declare their past criminal
charges/records
Political parties must display full
details of the criminal charges faced by
their candidates on their websites and
give wide publicity in the electronic
and print media about pending cases
against them
Parliament must make laws to ensure
candidates with criminal records
don’t enter public life or take part in
lawmaking
The Election Commission must
ensure that candidates clearly specify in
bold letters the details of their pending
cases or criminal past at the time of fil-
ing nominations
The judgment came on a batch of
petitions filed by BJP leader and advo-
cate Ashwini Kumar Upadhyay, former
Chief Election Commissioner JM Lyng-
doh and an NGO, Public Interest Foun-
dation. The petitioners essentially
sought guidelines to deal with the men-
ace of criminalisation of politics and
demanded that those charged with seri-
ous offences be debarred from contest-
ing elections. They also demanded that
the trial of such persons be concluded
within six months in a time-bound
manner.
The question before the top court in
the current case was whether such dis-
qualification should run from the date
of framing the charge by the court
instead of the conclusion of the trial.
The matter was initially referred to a
three-judge bench and then to a
LEGAL REPRIEVE
MP Pappu Yadav faces many criminal charges
UNI

five-judge Constitution bench. The
bench commenced hearing on August 9
and concluded on August 28.
The petition argued that current pro-
visions of the Representation of the
People Act, 1951, was not enough for
convicted legislators and that the ban
should be for more than six years.
“Indian democracy has seen a steady
increase in the level of criminalization
creeping into the polity. This tends to
disrupt constitutional ethos, strikes at
the root of democratic form of govern-
ment and makes citizens suffer,” the
Court observed while putting the onus
on lawmakers to check the growing
That is, one in every three MPs is
charged with criminal cases. The BJP
has 282 MPs, and out of these, 98 have
criminal cases against them. According
to data submitted by the centre to the
apex court, no more than six percent of
criminal cases against MPs and MLAs
ended in conviction. Of 3,884 cases
from 2014 till now, judgments of guilt
were pronounced in 38 and 560 were
acquitted, the centre informed the
Supreme Court in an affidavit as recent-
ly as September 11, 2018.
Though the Court has told the politi-
cal class to take corrective measures
themselves, the question is: Will they?
menace of criminalisation within their
own tribe.
The case cannot be overstated. In
2014, the Association of Democratic
Rights (ADR) along with National
Election Watch analysed the affidavits
of 542 of 543 winners in the 2014 Lok
Sabha elections and found that a candi-
date with a criminal background was
almost twice as likely to win than one
without a criminal background. The
winning chances of the former were 13
percent, and of the latter five percent.
Another ADR study found that 186
MPs out of 543 of the current Lok
Sabha were facing criminal charges.
Ps and MLAs cannot be
barred from practising
law as they are not
“full-time salaried
employees” and advocates
who become lawmakers can continue to
practise as the relevant rules place no
restriction, the Supreme Court said.
The judgment was delivered by a
bench of CJI Dipak Misra and Justices
AM Khanwilkar and DY Chandrachud
in a petition filed by advocate and BJP
Legislatorsarenotfull-timesalariedemployees,saysSC
Of Lawyers
and Lawmakers
M
spokesperson Ashwini Kumar Upadh-
yay. In his petition, he had sought that
legislators be barred from practising as
advocates (for the period during which
they are MPs or MLAs), in the spirit of
Part-VI of the Bar Council of India
(BCI) Rules. Rule 49 deals with advo-
cates becoming full-time salaried
employees of any person, government,
firm, corporation or concern. The peti-
tioner stressed that a legislator is a full-
time salaried employee of the govern-
ment and hence cannot be allowed to
practise as an advocate.
Following Upadhyay’s submission,
the BCI issued a notice to MPs and
MLAs/MLCs who continue to practise
law. But the government, represented
by Attorney General KK Venugopal,
opposed the petition, contending that
an MP is an elected representative and
not a full-time employee of the govern-
ment, and hence cannot be stopped
from practising law.
“They are doing a public service in
their capacity as an MP. You can’t stop a
person from practising a profession. It
is a fundamental right to carry on a
profession,” Venugopal had argued.
The apex court ruled that legislators
“cannot be characterised as full time
salaried employees as such, much less
of the specified entities. For there is no
relationship of employer and employee”.
The two Houses of Parliament cur-
rently have nearly 40 stalwart advocates
such as Kapil Sibal, P Chidambaram,
Abhishek Manu Singhvi, Pinaki Misra
and Meenakshi Lekhi, while many
more practising lawyers are MLAs in
state assemblies.
—With inputs from India Legal Bureau
WITH MY LORD’S CONSENT (From left) P Chidambaram, Kapil Sibal, Abhishek Manu Singhvi
and Meenakshi Lekhi are practising lawyers as well as lawmakers

Courts / Scrutiny Of Assets
20 October 8, 2018
LowerjudicialofficersareagitatedovertheDelhiHighCourt’s
decisiontocloselyexaminereportssubmittedbythemon
propertyandothertransactions
By Kunal Rao
Judging the Judges
intimations under Rules 13, 16 & 18 of
CCS (Conduct) Rules, 1964, given by the
Judicial Officers,” says the circular. The
move to assess and verify the reports
filed by judges has led to consternation
in the subordinate judiciary.
The Central Civil Services (Conduct)
Rules, 1964, that govern the working of
officials in the civil services or posts that
are connected with the affairs of the
Union include judges in the subordinate
courts. Under these rules, it is mandato-
ry for judges or officers of higher ranks
to file reports about accepting gifts and
lavish hospitality, making investments
or lending and borrowing money, pur-
chasing vehicles and buying of immov-
able and movable assets as well as other
properties beyond a certain price.
Section 13, relating to gifts, says that
no government servant shall accept, or
N a move that could spark an
internecine battle between the
higher and lower judiciary, the
Delhi High Court has issued a cir-
cular whose aim is to keep a close
watch on assets acquired by judges
of the subordinate courts. The circular
issued by the administrative depart-
ment of the High Court has called for
the appointment of officials from the
Subordinate Accounts Services (SAS) or
those with specialised qualification
from the Institute of Costs & Works
I
Accountants (ICWA) to assess the
reports filed by judges with regard to
purchase of movable and immovable
property, acceptance of gifts and lavish
hospitality, foreign travel by themselves
and their families and high-value trans-
actions made by them.
“The Competent Authority has been
pleased to accept application of officials
from Subordinate Accounts Services &
Qualified Officials from Institute of
Costs & Works Accountants (ICWA) for
doing the work of assessment of the
BIG BROTHER
Keeping a watch on lower
courts—Delhi High Court
delhihighcourt.nic.in

permit any member of his family or any
other person acting on his behalf to
accept, any gift from any person. “A gov-
ernment servant shall avoid accepting
lavish hospitality or frequent hospitality
from any individual, industrial or com-
mercial firms, organisations, etc., having
official dealings with him,” it says. When
gifting is in conformity with religious
and social practices, as at family func-
tions, a government servant may accept
gifts from relatives or friends having no
official dealings with him. However, the
officer is required to report these to the
government if the value of such gifts
exceeds a certain amount.
Section 16, that deals with invest-
ments, lending and borrowing, says that
no government servant shall speculate
in any stock, share or other investment.
There is a provision that allows for occa-
sional investments made through stock-
brokers or other persons duly authorised
and licensed or who have obtained a
certificate of registration under the rele-
vant law. But the rules make it clear that
frequent purchase or sale or both of
shares, securities or other investments
will be deemed to be speculation and is
a no-no.
Section 18 relates to the purchase
and sale of movable, immovable and
other valuable properties and brings un-
der its ambit government servants bel-
onging to any service or holding any
post included in “Group A” & “Group B”,
which includes subordinate court
judges. The rules require that officers
submit an annual report in such form as
may be prescribed by the government,
giving details of the immovable property
inherited, owned or acquired, held on
lease or mortgaged either in own name
or in the name of any family member or
in the name of any other person.
Judges of the lower judiciary that
India Legal spoke to say they are being
targeted for no reason.
They question the need for such a
directive when already established
norms are in place to check wrongdoing.
Besides, some also say that the move
smacks of a complete lack of under-
standing of the changed conditions in
the lower judiciary.
T
hey point to the profiles of some
of the newer entrants in the
lower judiciary and say many
come from well-to-do families and are
in a position to undertake foreign travel
and host big parties, and so on. Besides,
they also complain about the move hav-
ing the potential to expose their person-
al and financial details to outsiders, thus
putting them at risk.
A retired district and sessions judge
of Tis Hazari Courts spoke to India
Legal on condition of anonymity. He
said: “This is the first time that a
circular of this kind has been issued.
The aim is to tighten vigilance.
Earlier, intimations were sent through
the district and sessions judge to the
registrar general of the High Court,
which were then forwarded to the vigi-
lance department.”
He said that there have been
instances when an inquiry was initiated
and action was taken against errant
judicial officers. “In some cases, inquiry
was dropped after receiving satisfactory
answers. In one case, intimation was
given by a newly appointed judicial offi-
cer, the son of a former Delhi High
Court justice and present justice of the
Allahabad High Court. After an inquiry,
discrepancies were found and he was
removed. In another case, a sitting judi-
cial officer was found indulging in a real
estate business, and he was subsequent-
ly told to leave the job.”
When a response was sought from
Delhi High Court Registrar General
Dinesh Sharma, he refused to comment
on the circular.
Judgesofthelowerjudiciarysaythey
arebeingtargetedfornoreason.They
questiontheneedforsuchadirective
whenthenormsarealready
inplacetocheckwrongdoing.

Religion/ Church Under Attack
22 October 8, 2018
India’sfirstrape-accusedbishopissenttojailbuttheChurch
isleavingnostoneunturnedindrummingupsupportforhim
By Naveen Nair in Thiruvananthapuram
Not in God’s Name
movement inside the Church.
The Kerala Catholic Bishops Council
(KCBC), which is the state arm of the
all-powerful Catholic Bishops Council of
India (CBCI), has, meanwhile, released
a press note last week delegitimising
and denouncing the protest that the
nuns carried out in Kochi, supported by
a section of the priests and other acti-
vists. It led to the police finally having
no option but to arrest the bishop.
“We need to understand that the
Church, like many other organisations,
is a highly patriarchal one. There has
been no space for women’s voices. That
is why even after the arrest of the priest
they are supporting him and are even
putting out official statements in his
HE Catholic Church in India
has never had it so bad. With
the Jalandhar bishop, Franco
Mulakkal, going behind the
bars accused of a crime as
serious as rape, it’s a crisis of
unparalleled proportions that is staring
the Church in the face. Never in
Independent India had a bishop gone to
jail for a sexual offence. What makes it
worse is that Mulakkal’s arrest and his
remand come days after a group of
UNI
T
nuns, standing tall behind the rape vic-
tim who herself is a nun of a convent in
Kuravilangad in central Kerala, took to
the streets in protest. Not only was such
a protest unheard of in the history of the
Catholic Church, but never before had
such voices of dissent also been allowed
to reach out to society to be echoed and
then supported by even the believers.
Whatever turn the legal case takes in the
days to come, activists say that this issue
has set forth a much-awaited reform

support. They are unable to even accept
that the law has caught up with a pow-
erful male member of their institution
because women have spoken up,’’ P
Geetha, a well-known social activist,
told India Legal.
Even as the bishop remains in judi-
cial remand till October 6 in a sub-jail
in Pala, the Church is leaving no stone
unturned in drumming up support for
him. Right from the note released by the
KCBC that openly expresses apprehen-
sion whether “the bishop will get a
chance to prove his innocence” to the
Pala auxiliary bishop taking time out to
visit Mulakkal in the sub-jail, all signals
are pointing to the Church standing
solidly with the rape accused with little
regard for the victim’s plight. “If you
look at all the cases that have struck the
Church and its convents over the years,
you will see a consistent trend of denial
and then if someone raises their voice,
they are quickly discredited. Always, the
Church has stood with the accused espe-
cially if he is a male member of the
order and so such a stand in this case,
too, is hardly a surprise for many of us,’’
Father Augustine Vattoly, a priest-
turned-activist from Kochi, said.
Father Vattoly and many others had
joined forces with the nuns in forming
the Save Our Sisters (SOS) Action
Council that agitated until the bishop
was arrested. SOS also brought out a
reply note to KCBC which read, “It is
not the nuns who took to the streets for
justice who brought disrepute to the
Church but the people who continue to
shield the accused and not stand by the
victim who are actually bringing shame
to it and its legacy.’’
The accusation against the bishop
dates back to 2014 when it was alleged
by a nun belonging to the congregation
called the Missionaries of Jesus that she
had been raped by Bishop Mulakkal on
multiple occasions between May 6,
2014, and September 23, 2016, in room
number 20, which is the guestroom of a
convent situated in Kuravilangad in
Kottayam district in central Kerala. The
nun alleged that the bishop, during his
administrative visits to the convent
from Jalandhar where he had been sta-
tioned, used to summon her to the gue-
stroom on the pretext of discussing
matters and sexually exploit her. She
also claimed that she had complained
to the higher authorities but everyone
had turned a blind eye to her plight,
leaving her with no option but to file a
police case.
O
n June 26, an FIR was regis-
tered at the Kuravilangad police
station following which the case
was taken up by the Ernakulam range
inspector-general. A Special Investi-
gation Team (SIT) was formed under
him to probe the case. The SIT from
Kerala travelled to Jalandhar where the
bishop was questioned for nine hours.
He was then summoned to Kochi under
Section 41A of the Criminal Procedure
Code and interrogated with the help of a
questionnaire for eight hours each on
three continuous days. The SIT regis-
tered his arrest on September 21.
The remand report filed by the SIT
clearly says that there is prime facie evi-
dence against the bishop since there is a
lot of discrepancy in the statements he
has given. On sustained interrogation,
he had even revealed that consensual
sex had taken place between himself
and the nun. He had initially denied
having had sexual intercourse with her.
The bishop also claimed that on the
specific dates that the nun alleged
It’sacrisisofunparalleledproportions
thatisstaringtheChurchintheface.
Mulakkal’sarrestcomesdaysaftera
groupofnuns,standingtallbehindthe
rapevictim,tooktothestreetsinprotest.
SINNER AND THE SINNED
(Facing page) Franco Mulakkal is taken into
custody by the Kerala Police after nuns in the
state agitated on the streets

have rubbished this stand of the KCBC,
saying that written complaints were
given to concerned authorities and
nothing had been done.
While playing the victim card by say-
ing that the nuns’ protests were part of a
plan to malign it, the Church has also
unleashed a campaign of vengeance
against those who supported the nun.
Sister Lucy Kalappura who belongs to a
church in the Thamarassery diocese in
north Kerala, is the latest victim of this
vendetta. Her crime—she had been
vocal about the cause of the victim on
local television channels. The result was
that when she returned to her parish
after visiting the protest site in Kochi,
the Mother Superior ordered her to
refrain from performing any of the
duties that she had been doing at the
parish all this while.
But the sanctions imposed on her
had to be removed after a section of the
laity stormed the Church last week
demanding she be allowed to fulfil her
duties. The priest was mobbed by the
people and he finally relented by call-
ing off the sanctions on Sister Lucy.
“When I went to the protest I did not
have any particular agenda against
anyone. I just wanted to support the
nuns. But now I realise that I have ruf-
fled a few powerful feathers. I know
there will be more sanctions against
me and I may be harassed. But that
does not deter me from doing what is
right,” Sister Lucy said.
But matters did not end there. Sister
Lucy has been continuously harassed
and threatened over the social media by
a few unknown faces since. Even a local
daily that is run by a section of the
Church openly ridiculed her. Also, a
couple of other priests who had support-
ed the nun have been openly reprimand-
ed by the Church.
Meanwhile, the Kerala High Court
has deferred the bail hearing of Bishop
Mulakkal to October 3.
24 October 8, 2018
that he had raped her, he had either not
visited the convent or not stayed back
beyond 11 pm. But both these claims
had been found to be untrue as per the
register records at the convent, and the
bishop had also been unable to provide
any evidence of having stayed elsewhere
on those nights.
Perhaps what is challenging for the
SIT is to gather scientific evidence in the
case since it’s a very old one.
“Prime facie there is enough evidence
to arrest and make the bishop stand
trial but the biggest challenge is to get
the scientific evidence since the inci-
dents happened four years ago. Anyway,
we are trying our best to gather it,” a
police officer told India Legal on condi-
tion of anonymity. Meanwhile, the bish-
op was taken for a potency test which he
cleared and a DNA test has also been
done on him.
The bishop has, meanwhile, rub-
bished all allegations and told the
Kerala High Court in his bail petition
that a concerted effort is being made to
malign his image because he had taken
administrative action against the com-
plainant. “The allegations made by the
de facto complainant is wholly concoct-
ed and cooked up in order to wreak
vengeance for the actions taken by the
applicant against the de facto com-
plainant in the various complaints
received against the de facto com-
plainant,’’ reads the bail petition.
T
he petition went on to say that
the bishop had removed the par-
ticular nun from the post of the
Mother Superior and Kerala in-charge
in May 2017 following complaints of her
having an affair with her cousin’s hus-
band. It alleges that it is this action of
the bishop that created the motive of
vengeance in the mind of the com-
plainant following which she had raised
the allegations of rape. The KCBC, too,
has taken a similar line which is clearly
evident from the note that it had
released. “We are not finding fault with
the nun for filing a police complaint.
But why did she not report the matter to
the higher-ups in the Church? If she
had done so, do you think the Catholic
Church would have overlooked this?”
asked Varghese Vallikatt, spokesperson,
KCBC. But the nun and her supporters
“WhenIwenttotheprotestIdidnothave
anyparticularagendaagainstanyone.I
justwantedtosupportthenuns.Butnow
IrealisethatIhaveruffledafewpowerful
feathers.Iknowtherewillbemoresanc-
tionsagainstmeandImaybeharassed.”
—SisterLucyKalappura
“Wearenotfindingfaultwiththenunin
filingapolicecomplaint.Butwhydidshe
notreportthemattertothehigher-upsin
theChurchandifshehaddone,doyou
thinktheCatholicChurchwouldhave
overlookedthis?”
—VargheseVallikatt,spokesperson,KCBC
Religion/ Church Under Attack

Focus/ Advertorials and News
26 October 8, 2018
InaSpecialLeavePetitionbeforetheSupremeCourt,theElectionCommissionhassaidthat
repeatedlaudatoryreportsofacandidate’sachievementsmustbeconsideredaspaidnews
By Deepankar Malviya
Paid and Puffed
EWS reports in which a
political leader “boasts
of his achievements
and appeals to the elec-
torate to cast votes in
his favour should be
treated as paid news even if there is no
documentary evidence to show that
the money was paid,” the Election
Commission (EC) has told the
Supreme Court.
In a Special Leave Petition before the
apex court, the EC has also stated that
“if paid news can only be determined on
the basis of irrefutable documentary evi-
dence, the subterfuge would gain
uncontrollable currency and would be a
major setback to the effort to curb the
practice of monetising the influence that
candidates could wield due to their sta-
tus and network in society, thus deriving
an unfair advantage over others”. The
poll body was challenging an order of
the Delhi High Court of May 18, 2018,
that ruled in favour of Narottam Mishra,
the Madhya Pradesh minister for public
relations, water resources and parlia-
mentary affairs.
The matter came up when Congress
leader Rajendra Bharti filed a complaint
against Mishra regarding the amount
disclosed by him as expenditure. In the
November 2008 elections to the
Madhya Pradesh Legislative Assembly,
the limit for expenditure by a candidate
was `10 lakh. Mishra had disclosed his
expenditure to be of `2,40,827 only.
This was done under Section 77 of the
Representation of People Act, 1951,
which states that “every candidate at an
election shall, either by himself or
through his election agent, keep a sepa-
Commission alleging that Mishra had
during the elections published some
news advertisements but did not disclose
the amount spent on them. The EC
directed the state Chief Electoral Officer
(CEO) to inquire into the allegations,
but the CEO reported back that all the
election expenditure was accounted for
and no discrepancies found. On May 28,
2012, Bharti sent another complaint to
the Election Commission stating that 42
such news items were published in
newspapers and the expenditure had not
been disclosed by Mishra. The District
Election Officer was then asked to ascer-
tain whether different newspapers had
MPministerNarottamMishrahad
gotsomeitemspublishedinnewspapers
anddidnotdisclosetheexpenses.
TheECgavehimashowcausenotice
forthis,andlaterdisqualifiedhim.
N
rate and correct account of all expendi-
ture in connection with the election
incurred or authorised by him or by his
election agent between the date on
which he was nominated and the date
of declaration of result thereof, both
dates inclusive”.
On April 13, 2009, Bharti filed a
complaint with the Election
Anil Shakya

received any payments for the publica-
tion of the news items.
In January 2013, the EC issued a
show-cause notice to Mishra asking why
he should not be disqualified under
Section 10A of the Representation of
People Act, 1951, which states that, if
the Election Commission is satisfied
that a person has failed to lodge an
account of election expenses in time and
has no good reason for the failure, it
shall, through an official gazette, declare
him disqualified. Mishra filed a detailed
objection to the show-cause notice.
T
he EC then passed an order
under the Act, dated June 23,
2016, disqualifying Mishra for
three years. Mishra filed a Special Leave
Petition in the Supreme Court on July
12, 2017. The apex court transferred the
matter to the Delhi High Court on July
13, 2017, whereby the single-judge
bench dismissed his petition. Mishra
then moved the division bench, chal-
lenging the judgment and the order of
the EC. His appeal was allowed, and the
impugned order and judgment of the
Election Commission were set aside by
the bench of Justices S Ravindra Bhat
and Sunil Gaur in its judgment dated
May 18, 2018.
The EC had stated that its findings
were based on two issues—whether the
news published was paid news and
whether Mishra or his agent authorised
the expenditure for publication in
newspapers. The Delhi High Court had
said that the Election Commission is
there only to adjudicate whether the
election expenses incurred by the candi-
date have been accounted for or not
and that any indirect control on the
content of news would have a great
impact on a citizen’s right to free speech
and expression.
Challenging the Delhi High Court
verdict, the EC has asked in its appeal
before the apex court, “Where there
appears in daily newspapers having a
wide circulation statements issued by
and in the name of a candidate which
are not only laudatory of his records
and achievements but also a direct
appeal to the voters by the candidate
himself, would it be erroneous for the
EC to treat such statements as not
news, but paid news?”
The EC has also mentioned in its
appeal that when a candidate is held
accountable for maintaining a record of
the poll expenses, the burden of proving
that any kind of beneficial service being
rendered to him is not at his behest
would also fall on him. He must prove
that he has distanced himself from any
such news and service.
Challenging the order, the poll panel
has said, “If such motivated propaganda
is allowed in the garb of free speech dur-
ing the election period, candidates with a
strong network of connections and unde-
fined relationships would exploit their
sphere of influence in the society and
would have the unequal advantage of
encashing such silent services.”
TheDelhiHCbenchofJusticesS
RavindraBhatandSunilGaursetaside
thesingle-judgebenchorderand
Mishra’sdisqualification.TheEChas
challengedthisverdictintheapexcourt.
NO HIDDEN COSTS
The Election Commission (facing
page) proforma for declaration
of poll expenditure by candi-
dates; (above) Narottam Mishra

Spotlight/ Manual Scavenging
28 October 8, 2018
Thoughlegislationoutlawingthepracticeisin
place,rampantviolationsacrossthecountryleadto
hundredsofdeathseveryyear
By Punit Mishra
Life Is The Pits
EPTEMBER 16, 2018: Five
workers died while clean-
ing a septic tank in Jashpur
district, Chhattisgarh.
September 9, 2018: Five
people died due to asphyxi-
ation after they entered a sewage treat-
ment plant in West Delhi’s Moti Nagar
area. Five days later, another person
died in Dabri area in New Delhi while
cleaning a septic tank.
According to official data, Tamil
Nadu has reported 144 fatalities of
present Act needs to be amended or
even whether the government should
widen its scope. Experts believe that the
penal provisions in the Act should be
revisited to allow stringent punishment
for any person, local authority or agency
that employs people for hazardous
cleaning of sewers and septic tanks
which is banned under the current law.
At present, under Section 7 of
PEMSRA, a violation is punishable with
two years of imprisonment or fine or
both; but this has hardly prevented
deaths of manual scavengers. Experts
believe that there would be a greater
deterrent effect if the punishment of
imprisonment/fine is maximised to the
extent possible. At the same time, they
also believe that the present law should
be adhered to aggressively in order to
eliminate manual scavenging in its
totality. They feel violators at present are
not fearful of the penalties simply
because they are aware of the lax imple-
mentation of the law.
S
workers engaged in manual scavenging
since 1993.
The Prohibition of Employment as
Manual Scavengers and their Rehab-
ilitation Act (PEMSRA), 2013, was
enacted with the aim of eliminating
manual scavenging in India, but five
years down the line, the Act has
proved ineffective in preventing
deaths of manual scavengers in all
parts of the country.
The numbers are staggering, enough
to provoke questions about whether the
PUBLIC OUTCRY
A protest in Delhi against
the non-implementation of
the manual scavenging
ban; (inset) a manual
scavenger’s family mourns
his death

According to Bezwada Wilson,
National Convenor of the NGO, Safai
Karamchari Andolan (SKA), and a
Magsaysay award winner who has
fought tirelessly for the eradication of
manual scavenging, no convictions have
taken place under PEMSRA 2013 till
January 2018. He said: “Culprits in
these cases are often charged under
Section 304A of the IPC—criminal neg-
ligence—not under PEMSRA 2013.
If you arrest anybody under the negli-
gence clause, the crime appears small.
That is why we feel that it has to be put
under murder. Then the people will
know that they are transgressing into
dangerous territory.”
T
he other major issue that defeats
the aim of PEMSRA 2013 is the
lack of machines to clean sewers
and septic tanks. For instance, the Act
provides for modern technology (mech-
anised) for cleaning of sewers and septic
tanks to eliminate the need for manual
handling of excreta during the cleaning
process. “It shall be the duty of the
appropriate government to promote,
through financial assistance, incentives
and otherwise, the use of modern tech-
nology,” the Act says. But reports indi-
cate that little initiative has been taken
by the central government as well as
state governments in this regard.
Indeed, experts say that if mechanised
cleaning had been put in place and
implemented vigorously, the many
deaths that take place almost on a daily
basis would have been averted.
The National Commission for Safai
Karamcharis (NCSK), the statutory
body set up by an Act of Parliament for
the welfare of sanitation workers, said
that 123 people employed in hazardous
forms of manual scavenging lost their
lives while at work since January 2017.
The information is based on media
reports it collated, mostly from English
and Hindi newspapers. No data was col-
lected from the regional press and only
13 states and Union territories were
included in the reports. NCSK officials
were quoted in the media as saying that
had they collated statistics from regional
newspapers, the numbers would have
been much higher.
The reports indicated that the all-
India figure of 123 by NCSK was very
much on the lower side as compared to
the figures collated by an SKA survey
which pegged the death toll at around
429 in Delhi alone in the period 2016-
18. Thus, if the all-India figure by SKA
is to be believed, the figures could swell
to 1,470 during the same period.
In fact, the Ministry of Social Justice
and Empowerment told the Lok Sabha
in 2017 that the country witnessed 300
manual scavengers’ deaths that year. Of
these, 12 happened in Delhi alone while
Tamil Nadu clocked the highest at 140.
Karnataka was in second spot with 59
deaths and Uttar Pradesh followed next
with 52 deaths. The SKA survey also
says that India still has 2.6 million
insanitary latrines that require cleaning
by hand. The Socio Economic and Caste
Census of 2011 reveals that over 1.8
lakh people from rural India are still
engaged in manual scavenging. The
Ministry of Social Justice and
Empowerment while implementing a
Self Employment Scheme for
Rehabilitation of Manual Scavengers
(SRMS) had identified 13,657 manual
scavengers till June 30, 2018.
To add to the problem, the flagship
programme of the Modi government,
Thereisanadageinthefinancialworld—
listentothemarkets,theyneverlie.The
marketsaresendingaclearsignaltothe
government—stoppatchworkpolicies
anddotheimperativeanddoitsoon.
“Culpritsinthesecasesareoften
chargedunderSection304Aofthe
IPC—criminalnegligence—notunder
PEMSRA2013.Ifyouarrest
anybodyunderthenegligenceclause,
thecrimeappearssmall.”
—BezwadaWilsonofSafaiKaramchari
AndolanandMagsaysayawardwinner
HAZARDOUS TASK
A labourer is lowered to clean a
sewage line in Kolkata

the officials was quoted in the
media as saying: “We have
already asked all states to con-
vert dry toilets, and we recom-
mend mechanical equipment
for cleaning of toilets. If man-
ual cleaning is to be done, it
has to be done with proper
supervision and with the nec-
essary safety equipment.”
Manual scavenging is a
hereditary and caste-based
occupation with over 90 per-
cent of those practising it
belonging to the Dalit
(Valmiki) community. Experts
are of the view that there is lit-
tle hope of manual scavenging
being eliminated in India as
long as the caste system is
firmly entrenched. A paper
titled “Caste, Purity and Pollution and
the Puzzle of Open Defecation” points
out: “Unlike in other developing coun-
tries, where latrine pit emptying is an
undesirable or low-status job but is one
that is governed by market norms, for
caste Hindus it would be inconceivable
to empty a latrine pit or to expect any-
one to do so other than a Dalit...”
Shomona Khanna, the lawyer for the
Safai Karmachari Andolan, told India
Legal: “Manual scavenging is perhaps
the most abhorrent practice of caste-
based enslavement and these people are
treated as untouchables.” Reports say
that this occupation is highly patriar-
chal. A Human Rights Watch report
said that 95 percent of the workforce
engaged in manual scavenging compris-
es women. Wages earned by women
manual scavengers are lower,
compared to their male counterparts.
For instance, in rural India, women
labourers get wages in kind such as food
grains while men get cash. Women
manual scavengers get 10-15 kg of food
grains annually. A male manual scav-
enger earns around `150-350 a day.
30 October 8, 2018
the Swachh Bharat Mission (SBM)
which aims to make India clean and
filth-free does not have any provision to
eliminate manual scavenging. While it
aims to build toilets and protects the
dignity of women by providing them
with private spaces to defecate, it also
fosters insult on women manual scav-
engers as they are the ones who clean
human excreta from dry-pit latrines.
The other bane of the SBM is that
most of the toilets built under the initia-
tive are single-pit and do not have con-
tinuous supply of water and are not con-
nected to sewers. Every two to three
years, they need to be emptied, thus
leading to hazardous cleaning.
Wilson was quoted in The Indian
Express as saying that many toilets built
under the SBM lacked water connec-
tions or a continuous supply of water,
and are not linked to the sewage net-
work. He is of the view that until a
mechanised system of cleaning is imple-
mented, more and more manual scav-
engers will die. He pointed out that the
SBM represents toilet users and doesn’t
pay heed to toilet cleaners. “The scheme
is about the eradication of manual scav-
enging, but when you come to the pro-
gramme, you will never find how it will
be eradicated,” Wilson said.
Another human rights activist said
that under the SBM safety norms are
being flouted, leading to the deaths of
manual scavengers.
Top officials of the SBM, however,
say that no norms are being flouted and
that it ensures workers’ safety. One of
F
or millions of scavengers, life
could become a lot more digni-
fied and a lot less dangerous
thanks to new sewer cleaning robots
that are making their way into cities,
particularly in south India. Bandicoot, a
semi-automatic robot developed by
Thiruvananthapuram-based start-up
Genrobotics, costs around `25 lakh
and has been commissioned by sever-
al municipal bodies in Tamil Nadu,
Andhra Pradesh and Kerala. It requires
just one person to take it up to the
sewer and the rest is done by the
machine which is equipped with multi-
ple cameras, a robotic arm with 360-
degree manoeuvrability and a bucket
to collect the waste.
Another manhole cleaning robot,
Sewer Croc, has been created by
Bengaluru-based company Ajantha
Technologies. This robot can be operat-
ed by manual scavengers without enter-
ing the sewers. Sewer Croc will soon be
deployed in Hyderabad to clean sew-
ers. The robot leverages a camera to
detect obstructions and its powerful
water jet and cutting system empties
them out in the sewer line. It is also
equipped with a device which detects
poisonous gases to avert possible acci-
dents.
—Punit Mishra
Robotsarecoming
Spotlight/ Manual Scavenging
MODERNISING SYSTEMS
Bandicoot, a sewer-cleaning robot
Over90percentofthosepractising
manualscavengingbelongtotheDalit
(Valmiki)community.Expertssaythereis
littlehopeofitbeingeliminatedaslong
asthecastesystemisfirmlyentrenched.

Legal Eye/ Death Penalty For Rapists
32 October 8, 2018
HILE justice dela-
yed is justice denied,
what happens when
justice is delivered
without following
the due processes of
law? This is what is happening in
Madhya Pradesh, the first state to pass
a law awarding death sentence to
rapists of minor girls. The law was
passed in February 2018 and already 12
death sentences have been handed out.
Some of the accused are in their
early twenties, while there is one 19-
year-old. Most come from extremely
poor socio-economic backgrounds and
could not even get lawyers to defend
themselves against these charges. This
Madhya Pradesh accounted for the
highest number of rape cases in the
country in 2016—4,882 out of 38,947,
according to the National Crime
Records Bureau. But what is actually
happening is a mockery of such trials.
Activists who had fought for more
stringent punishment for rape cases are
aghast at the manner in which the rape
law is being implemented.
Dr Ranjana Kumari, who heads the
Centre for Social Research, believes
these verdicts are nothing more than “a
mockery with the courts playing to the
political gallery. At this rate, we will
soon hear of thousands of such verdicts
from across the country. In the police
registry, there are 4.5 lakh names of
men accused of rape during the past
decade. If this goes on, will the state
take responsibility for killing so many
(rapists) in future?”
Or take the case of Irfan Mewati, 20,
and Asif Mewati, 24, who were accused
of raping and killing a six-year-old girl
in Mandsaur on June 26. The local bar
association passed a resolution not to
defend them and the lawyer provided
by the state said that because of the
strong public sentiment against them,
they could not produce a single witness.
The death sentence was passed on them
MadhyaPradeshseemstobeinahurrytoawardthedeathpenaltytorapists
ofminors.Intheprocess,aredueprocessesoflawbeingfollowed?
By Rashme Sehgal
Hanging
By a Thread
PUBLIC OUTCRY
A man beats an effigy
of a rapist at a protest
against the rapes of
minor girls
could well explain why the sentence of
24-year-old Motilal Ahirwar was passed
within four days of the case being ad-
mitted in the lower court. It was admit-
ted on August 4 and the sentence was
passed on August 8.
While the trial of Rajkumar, an
autorickshaw driver who was accused of
raping a four-year-old girl on July 4,
lasted five days, the verdict was given
on July 27. As neither he nor his family
could afford a lawyer, he was allowed
one free of cost from the MP State Le-
gal Services Authority. The lawyer
assigned to him, BM Rathore, revealed
that because of the speed with which
the trial was conducted, he didn’t even
have time to speak to the accused.
W
UNI

on August 21.
Then there was the case of Jitendra
Kushwah, 25, who was accused of rap-
ing and killing a six-year-old girl on
June 20. He was sentenced to death on
July 27. Again, no lawyer was willing to
defend him.
A
runachal Pradesh, Rajasthan
and Haryana too passed a simi-
lar law earlier this year whereby
men convicted for raping a child below
12 years will be served the death sen-
tence. The first sentence under the new
law in Rajasthan was awarded to Pintu,
19, who had raped a seven-month-old
child in Laxmangarh area on May 9. A
special court in Alwar conducted daily
hearings and he was sentenced to death
on July 18.
While Kumari said that in no case
was she condoning the crime, the guilty
must be punished but through due pro-
cess of law. “In all such cases, the acc-
used have the right to appeal to higher
courts and the prosecution will have to
see the evidence before such a sentence
is executed,” she said.
Compare these fast-track trials to
what happened between 2004 and
2018, when only four death sentences
were carried out in India, she said.
Three were terrorists, while the fourth
was Dhananjoy Chatterjee, who had
reportedly raped and murdered a 14-
year-old girl.
Senior advocate Rebecca John also
expressed concern at the string of such
judgments issued by lower courts in
Madhya Pradesh. “This is nothing but a
gimmick in this election year. Women’s
safety should be a top priority for any
government, but this is hardly the way
to show that they mean business. These
verdicts are nothing but an abdication
of the principles of natural justice.
Every individual has the right to a fair
trial,” she said.
Swetashree Majumdar, a young law-
yer who had worked on preparing the
Justice Verma Committee report that
made recommendations on rape, police
reforms, providing quicker trials and
increased punishment for those who
commit crimes against women, believes
the government has not collated any
evidence on whether the death penalty
acts as a deterrent in cases of rape. “We
have no statistics to show that the death
sentence helps reduce rape. Even if we
take the examples of our neighbours—
Pakistan, Bangladesh and Afghani-
stan—all of whom hand out the death
penalty for rape, we find that it has not
acted as a deterrent, with the system
desisting from handing out these con-
victions,” said Majumdar. “To create a
credible legal justice system, we need
expeditious trials with proper evidence
collection systems in place. The biggest
loophole for evidence collection re-
mains the unprofessional manner in
which it is gathered. We cannot focus
on speed at the cost of content. The evi-
dence gathering process must be done
in a scientific manner.”
The cabinet had cleared an ordi-
nance in April 2018 providing lengthy
jail terms and even the death penalty
for sex offenders convicted for raping
girls below 12 years. The ordinance sets
out life sentences for the entire natural
life of a convict and rules out anticipa-
tory bail for rape or gangrape of a girl
less than 16 years. But the key question
experts are asking is what has been
done to beef up the system.
“The cops are the same. The infra-
structure is the same,” said Majumdar.
“The government has not increased the
numbers in our judiciary nor trained
the police force to create any meaning-
ful change. This speed of conviction has
not come about because of any organic
change. It sounds contrived and is
therefore dangerous. All this is being
done only for optics. Unfortunately, we
have become a generation that wants
instant gratification.’’
This has obviously not worked in
other countries. Experts working on
this issue in Pakistan, Bangladesh and
Afghanistan, find that the enforcement
agencies there, including the judiciary,
are wary of handing out the death
sentence except in the most heinous
cases.
But in India, it seems to have
worked the other way—handing out
summary justice instead of following
due processes of law.
“Women’ssafetyshouldbeatoppriority
foranygovernment,butthisishardlythe
waytoshowthattheymeanbusiness.
Theseverdictsareanabdicationofthe
principlesofnaturaljustice.”
—SenioradvocateRebeccaJohn
As against MP’s record of award-
ing 12 death sentences to rapists
of minors, only four death penal-
ties, in general, have been execut-
ed over 2004-18 in India
Aug 14, 2004: Dhananjoy Chatterjee,
hanged in Kolkata’s Alipore Central
Jail for rape and murder of a minor.
Nov 21, 2012: Mohammad Ajmal
Amir Kasab was hanged in Pune’s
Yerawada Jail for the 2008 Mumbai
terror attacks.
Feb 9, 2013: Mohammad Afzal Guru
was hanged in Delhi’s Tihar Jail for
his role in the 2001 Parliament attack.
July 30, 2015: Yakub Memon was
hanged at a Nagpur jail for his role in
the 1993 Mumbai serial blasts case.
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