India Legal 10 April 2017

Sacked official arrested for sex crime charge
Tokyo junket for office bearer’s kids
Banking scam worth `100 crore
The Racket in
Badminton
InvitationPrice
`50
NDIA EGALL STORIES THAT COUNT
April 10, 2017 ` 100
www.indialegallive.com
I
No-fly List: Is it
legally tenable?
Lalit Modi: Embarrassment
for India

| INDIA LEGAL | April 10, 2017 3
AWYERS’ protests, like the recent one
backed by the Bar Council of India, raise an
interesting issue. While these professionals
are perfectly within their rights to agitate
against state interference in their freedom to
protect and promote justice and equity for their
clients under the rule of law—the stuff that democracy
is made of—how much activism should they practise
in defending or promoting individual liberties, free-
dom of choice, and human rights through their formal
associations in the form of resolutions and recommen-
dations and collective political action?
Most professions—doctors, businessmen, journal-
ists, organised labour, women’s groups, Bollywood—
lobby collectively for their concerns as well as on
national issues—through FICCI, ASSOCHAM, Indian
Medical Association, trade unions, Editor’s Guild,
Centre for Social Research and Cine and Television
Artistes Association. And the lawyers have their Bar
Councils and associations at various levels.
While lawyers’ groups frequently protest in the
cause of their autonomy and working conditions, what
is their duty when it comes to larger, all-encompassing
social issues such as student protests, book bans,
increased censorship, bigoted religious or casteist
identity politics, enforced vegetarianism, vigilante
anti-Romeo squads, draconian amendments to the
Money Bill?
Recurrent debate faces bar associations every-
where. As a former president of the Michigan Bar
Association (USA) put it: “How can an association
comment on political and ideological issues and
still be viewed as a professional, impartial
organization? How can an association
made up of lawyers holding widely diver-
gent points of view represent and serve its
members well when it takes a stand on
highly political or controversial topics not
directly related to the practice of law? Should a
bar association, particularly a mandatory bar, use
member dues to speak on issues that fall outside
of its central mission? Should an association of
lawyers purport to offer one opinion on issues
such as gun control, nuclear weapons freeze,
deforestation, or abortion?”
The American Bar Association (ABA), the largest
comprehensive body of its kind, has never shied away
from advocacy. In the 1950s, The Hennepin Lawyer
reported: “The ABA threw its support behind the civil
rights movement during an era when there was no
consensus on the subject among its members. In the
early days of the Watergate scandal of the 1970s, the
ABA called for the resignation of President Richard
Nixon. And in 1981, the ABA mobilized opposition to
President Reagan’s efforts to eliminate funding for the
Legal Services Corporation, an independent nonprofit
agency that distributes funding earmarked for legal
services to the poor.”
A former ABA president, the late Jerome
Shestack, after a stormy annual ABA meeting, argued
that the ABA should not shy away from important
issues of public policy merely to keep the peace: “The
test for consideration of an issue by the ABA should
not be whether it is controversial or the subject of
political debate. Even such fundamental legal issues as
the independence of judges or legal services to the
poor can be caught up in the vortex of politics. The
true test is whether the issue is germane to our profes-
sion.” He defined the word germane as “whether the
matter has a material legal component relevant to our
professional interests, to the administration of justice
or to the protection of our constitutional system”.
As Thomas P Quinn, writing in the prestigious
ABA Journal put it: “I believe we lawyers have a duty
to society beyond filling out corporate income taxes,
and I believe not only our clients but society in gener-
al expect lawyers to cry ‘foul’ (to injustice in the
courts). Our failure to do so opens the door to those
who would prefer not the proper administration of
justice but the destruction of our society in its
present form.
“The present social unrest and upheaval that faces
this country is a byproduct of a failure of responsible
groups and individuals to step forward in accord with
the democratic process of this country and speak out
on the wrongs, injustices, and inequities that burden
our fellow man.”
L
SHOULD BAR ASSOCIATIONS
PRACTISE ADVOCACY?
Inderjit Badhwar
Letter From The Editor
editor@indialegallive.com

Contents
It’s a Racket
India Open 2017 is on, but the Badminton Association of India is mired in scandal with its
top brass accused of fraud, money laundering, nepotism and sexually exploiting players
14
LEAD
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4April 10, 2017
Spoken in Hatred
The Law Commission has proposed a bill comprising amendments aimed to contain hate
speech, but these fail to tackle online communication, casting a doubt on their efficacy
22
LEGALEYE
Meaty Problem
The slaughterhouse issue is complex and old, but now that the UP government has acted
on it so peremptorily, it must take the onus of coming out with a solution
24
POLITICS

REGULARS
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
Ringside............................6
Delhi Durbar......................7
Courts ...............................8
Briefs...............................12
Media Watch ..................49
Satire ..............................50
Cover Design & Illustration:
ANTHONY LAWRENCE
Living with
the Dragon
As it expands its footprint in the Indian
Ocean, India too has been boosting its
own ties in China’s neighborhood, albeit
a little less successfully
46
Vyapam Surprise
The CAG report reveals that the MP exam body is not, by definition, a depart-
ment. The government has used this ruse to deny access to accounts books
STATES
DIPLOMACY
38
A Ban against Rights
Criminal law should take its course against Ravindra Gaikwad
for his act but a travel ban for life is excessive
36
What’s in a Name?
In a relief to Chandigarh, the High Court has dismissed a plea for redesignating
some highways as roads. This will enable it to auction liquor vends near them
40
COURTS
End of the Road
The Court has asked auto manufacturers to stop selling BS-III
vehicles. They have only themselves to blame for this
30
ENVIRONMENT
A Crisis of Credibility
Demonetisation has exposed the cracks in our banks. The RBI
must urgently change policy so that the customer is treated fairly
26
ECONOMY
A Flying Slap
After an MP hit an airline staffer, carriers banned him from their
flights. But is it legally tenable? Should India have a no-fly list?
AVIATION
32
Art of Subterfuge
In a hurry to bulldoze the finance bill through parliament, minister Arun Jaitley
packaged it as a money bill which does not require the nod of the Rajya Sabha
42
MYSPACE
Red-Faced over
Red Corner
Interpol’s rejection of the Enforcement
Directorate’s plea for a red corner notice
to nail Lalit Modi brings to focus technical
lacunae and a slow-footed government
44
CRIME

6 April 10, 2017
“
RINGSIDE
Environment is not a matter of competition,
not about us and them, but about the humanity. You
can construct hotels, you can construct whatever
you wish, but have in place regulations for environ-
mental protection, and no court can ever interfere.
—Chief Justice JS Khehar, at a world conference on
environment, organised by the NGT
New India is neither a government pro-
gramme, nor is it the manifesto of a political
party, nor is it a project. New India is the
clarion call of 125 crore countrymen. It is the
essence of the emotions of 125 crore Indians
wanting to come together to create a
magnificent India.
—PM Narendra Modi, on Mann ki Baat
When a nation turns upon itself, when it per-
secutes and kills its own citizens with aban-
don, when it declares that its own people are
foreigners or enemies of the state, this is a
situation known as civil war. Today we are in
a state of civil war.
—Author Nayantara Sahgal, in The Wire
There are no problems. There
are only situations, some you
know how to handle and some
you don’t…. What is a problem
for one person is opportunity
for another.
—Sadhguru Jaggi Vasudev, at
ET Business Summit
It is difficult to keep winning all the time.
Once you reach the top of the mountain,
you have to come down after that.
—Rio Olympic gold medallist shuttler
Carolina Marin, suffering poor form at the
India Open Super Series, in
The Indian Express
Kaahe ka pashchaataap (what is there to
repent)? I will not apologise… he (Air
India staffer Sukumar) should come and
apologise. Then we will see. A 60-year-
old man should know how to behave.
—Shiv Sena MP Ravidnra Gaikwad, on
his assaulting Air India staffer, in
Hindustan Times
SENSELESS:
Nothing has
damaged India's
diplomatic outreach
to Africa more than
episodic attacks by
Indian goons on
Africans living
in India.
—Author and
columnist Brahma
Chellaney, on Twitter
Brad Hodge says
‘Virat skipped 4th to
play IPL’.
RUBBISH! He did it
to tell you that his
team can wallop you
even without him!
—Actor Amitabh
Bachchan, in praise
of Indian cricket
team’s performance
in the just-concluded
Test series, on Twitter

No marks for guessing who the
new VIP in Lutyen’s Delhi is. UP
chief minister Yogi Adityanath. He
is the man everyone wants to
meet, but only a lucky few get his
darshan. Union Minister of Sports
Vijay Goel learnt this the hard way
when he recently waited for an
hour for the UP CM at the parlia-
ment complex. Yogiji apparently
had dashed off for a brief meeting
with the PM and was supposed to
meet Goel later. But he failed to
keep his appointment and rushed
off for another “important meet-
ing” without even informing the
sports minister who was later told
that “CM sahib is very busy”. It is
not often that a Union minister is
bypassed by a chief minister. But
then every CM is not in the league
of Yogi Adityanath.
Delhi
DurbarAn inside track on
happenings in Lutyen’s Delhi
The extended visits to
Washington by National
Security Adviser Ajit
Doval and Foreign
Secretary S Jaishankar
seem to have been suc-
cessful. Billed as an exer-
cise to get to know key
members of the Trump
Administration, the inter-
action had other goals:
an official visit to
Washington by Prime
Minister Modi, the early
appointment of a US
ambassador to India and
building on strategic ties
to counter Chinese
expansionism. The Modi
visit is scheduled for
September, while an old
India hand, Kenneth
Juster who was involved
in early negotiations on
the Indo-US nuclear deal,
is likely to be posted to
Roosevelt House in Delhi
sometime soon. Also, the
Trump team wants a rela-
tionship with India
sharply focused on
strategic ties, terrorism,
sale of defense equip-
ment and a lowering of
import taxes on certain
US exports to India.
Any biography of
Subramanian Swamy
would, normally, have
publishers lining up
with contracts in
hand. Not this one. It
appears that
Swamy’s wife Roxna,
a senior advocate in
the Supreme Court,
has written a biogra-
phy of her husband.
The contents must be
pretty controversial
as all the publishers
she has approached
so far have declined
to publish the book.
She now intends to
ensure it sees the
light of day by self-
publishing it.
DIPLOMATIC MOVES
NEW VIP
Guests at two recent
lunches for MPs
have had to go
home without enjoy-
ing a hot meal
served at their table.
The first was an
annual affair hosted
by Union Minister
Venkaiah Naidu (left)
who is a popular
host for the range
and quality of the
Andhra cuisine he
serves. The second
lunch was hosted by
Lok Sabha Speaker
Sumitra Mahajan for
MPs. On both occa-
sions, the PM turned
up. Under SPG
rules, all dishes need
to be checked by
them before serving
when the PM is pres-
ent. The delays
meant that many
guests had to be
satisfied with packed
lunches and an apol-
ogy from the hosts.
Retired diplomats
never fade away; their
experience stands
them in good stead as
does a connection to
the ruling party.
Hardeep Puri (below),
who served as India’s
Permanent
Representative to the
UN in New York, has
been appointed chair-
man of the MEA’s
think tank, Research
and Information
System for Developing
Countries. Puri had
joined the BJP after
retiring. The second is
Ashok Kantha, who
retired as India’s
ambassador to China.
He has been appoint-
ed head of the
Institute for Chinese
Studies. Kantha is the
son-in-law of senior
BJP leader and former
external affairs minis-
ter Yashwant Sinha.
SWAMY’S
STORY
CLIMBING TRUMP TOWER
HUNGER
PANGS

The centre made it amply
clear to the Supreme
Court that a Lokpal couldn’t
be appointed under Lokpal
and Lokayuktas Act, 2014,
unless changes suggested
were approved by parlia-
ment and incorporated in
the Act.
Virtually taking on the
Supreme Court on the issue
of separation of powers, the
centre argued through
Attorney-General Mukul
Rohatgi that it was
the parliament and
the government’s
prerogative when to
change a law or
implement it and
the top court could
not direct it to do so
within a particular
timeframe. It
reminded the Court
that its authority comes in
only once the law is made.
Rohatgi further informed
the Court that 20 amend-
ments proposed by the cen-
tre, based on the parliamen-
tary standing committee
report on the issue, could be
examined by parliament only
in the monsoon session.
The Court showed its
urgency in the case after the
petitioner Common Cause,
an NGO, claimed that the
centre and political parties
were taking it easy due to
vested interests. It wanted
the Court to order the centre
to appoint the Lokpal.
Can’t appoint
Lokpal in a
hurry
In a major decision, the
Supreme Court ordered
that CCTV cameras be
placed in courtrooms and
relevant court areas in at
least two districts of each
state and UTs to record tri-
als. The Court arrived at a
decision after repeated pro-
posals from the centre in
the past on the need for
audio-video recording of
court proceedings.
The major highlights of
the order are: a) the high
courts must ensure that the
CCTVs are installed within
three months; b) the regis-
trar-generals of high courts
will submit a report to the
secretary-general of the
Supreme Court within a
month of installing the
cameras; c) the secretary
general of the Supreme
Court will submit it in prop-
er form before the top
court by August 9;
d) the top court will take a
call only after examining
the report; e) no audio
recording of court proceed-
ings should take place;
f) the content of video
footage will not be available
to anyone unless allowed
by the concerned high
court; g) high courts will
monitor installation of cam-
eras and keep a tab on
their functioning; and
h) all trial proceedings
inside district courts with
CCTVs will be monitored by
district and sessions judge
in his/her chamber.
Install CCTVs
at district
courts
An Air Force rule on promotions
came up for hearing in the Supreme
Court recently. Chaman Lal, working as
a sergeant in the Indian Air Force (IAF),
challenged the decision not to promote
him to the post of junior warrant officer
on the ground that he was disabled.
Justices Dipak Misra and AM
Khanwilkar, however, supported Lal and
directed the Air Force to consider the
due promotion for the petitioner. It also
wanted to know from the IAF why the
petitioner could not be promoted.
Lal had claimed that his disability
was in no way hindering his work
performance. He further argued that the
job profile of a junior warrant officer
was deskbound.
The counsel for the IAF pleaded that
Air Force rules do not allow Lal to be
promoted. He also pointed out that the
service of the petitioner got over in
2007, but the Air Force had extended it
for another 12 years. But this was
challenged by Lal and later supported
by records, which said that he could
continue in service till 2026.
Lal also pointed out that people
much junior to him had been promo-
ted and that his services had been
overlooked.
The matter was listed for further
hearing.
Courts
8 April 10, 2017
Don’t block
promotion of
disabled sergeant

After hearing detailed arguments from all par-
ties in the Nirbhaya case on March 27, the
Supreme Court reserved its verdict. It had sta-
yed the death penalty awarded to the four con-
victs (out of six) by the Delhi High Court in
March 2014, which had upheld the trial court
order of September 2013. The apex court was
looking into the death sentences awarded in the
case and had even appointed two senior advo-
cates as amicus curiae.
The convicts had argued that several factors
like age, socio-economic background, etc had
been overlooked by the trial court and the High
Court. Even the amicus curiae submitted that
the offense did not fall in the “rarest of rare cat-
egory”, the basis for capital punishment. They
argued that there was nothing that showed that
the convicts could not be reformed.
The counsel for the police pleaded that the
convicts deserved no relief whatsoever, consid-
ering the pain and agony suffered by Nirbhaya’s
family and for the larger good of society.
ArgumentsinNirbhayacase
The Supreme Court wanted to know from
the centre the “line of action” adopted by
states to stop farmers from committing sui-
cides due to crop failure. Asking the centre to
come back to it about the intended “line of
action” within four weeks, the Court also
highlighted that the centre had to come up
with a comprehensive and effective policy that
addressed the basic causes behind suicides.
The Court was responding to a PIL from
an NGO, Citizens Resource and Action
Initiative, which had brought up the issue of
farmers’ suicides in Gujarat and wanted the
centre to address the root causes. The Court
had earlier told the centre that merely doling
out compensation will not solve the problem
which needed immediate attention.
The centre on its part argued that solid
measures had been taken to tackle the basic
reasons and the crop insurance scheme was
a major initiative.
Needforapolicy
tostopfarmersuicides
The Supreme Court asked the cen-
tre and the Jammu and Kashmir
government to come together and
identify the minority communities in
the state, to which they agreed. A PIL
had been filed by a Jammu-based
advocate, Ankur Sharma alleging that
huge amounts of money were being
spent on the Muslims in the state on
the pretext that they belong to the
“minorities” when the fact was exact-
ly the opposite. It wanted a direction
from the Court to the state govern-
ment on identifying minorities in the
state and had sought an SIT probe
into unlawful and unreasonable bene-
fits being doled out by the state gov-
ernment to Muslims.
The Court ordered both the par-
ties to submit their report within
four weeks.
The counsel for the state govern-
ment told the Court that it was look-
ing into the recommendations of the
Sachar Committee. It
had earlier apprised the
Court that a similar sit-
uation existed in other
states as well but the
Court wanted to restrict
itself to J&K for the
time being.
Earlier, the centre
was fined for not
responding to the
Court’s order, asking
for a reply.
Identify the
minorities in J&K
Based on a report which suggest-
ed measures other than using
pellet guns to curb violent protests in
Jammu and Kashmir, the apex court
asked the centre to submit its alter-
natives by April 10.
The use of such guns had led to a
furore after people were killed or lost
their vision. The Jammu and Kashmir
High Court Bar
Association had
approached the
Supreme Court plea-
ding that the security
forces should stop
using such guns.
The Court also
referred to the tech-
nology-based options
suggested by the
report and observed
that these could be considered. The
centre, however, contended that the
report before the Court was interim,
and the measures had to be put on
trial at ground zero to see how effec-
tive they were.
The Court suggested that these
may be tested in violence-prone
areas in the Valley. It observed that it
was the solemn duty of a welfare
state to protect both the security
forces and the common people.
Alternative to
pellet guns

The Supreme Court
has been hearing
the matter on Sikh
jokes for quite some
time. Petitioner Harvinder
Chowdhury had argued
that jokes made on
the community were
unacceptable as it
portrayed it in poor
light. They were shown as “unintelligent”,
“foolish” and “naïve” in such jokes, she
argued. As a result, Sikhs faced discrimina-
tion in society, she pleaded.
The Court refused to sanction any moral
guidelines for people as it felt they could
not be implemented. It refrained from pass-
ing any order.
In the last hearing, the Court said that it
was not possible for it to lay guidelines on
the issue, but the petitioner could adopt
other mechanisms like invoking Section
66A of the IT Act, 2000, or seeking justice
under other relevant sections of the IPC.
In an unprecedented step, the Supreme
Court will hear cases like triple talaq, pri-
vacy policy of WhatsApp and the Assam
citizenship controversy during its summer
vacation, commencing from May 11.
Of these, all pleas in the triple talaq case
will be heard from May 11 to May 19. All
the cases will be taken up by a five-judge
constitution bench.
A CJI-headed bench expressed its
urgency and enthusiasm in disposing of the
triple talaq case as early as possible con-
sidering its “grave importance”. The Court
will only examine the legal aspect of the
issue and will not venture into the area of
the uniform civil code.
The lawyers linked with the triple talaq
case, Attorney General Mukul Rohatgi and
Kapil Sibal, expressed apprehensions that
they may not be able to attend court as
they had to argue other cases in front of
other “parallel constitution benches”. But
the Chief Justice of India, JS Khehar said:
“There are three issues we are taking up
during vacation…. If you don’t want us to
take them up, then don’t say, huge pen-
dency of cases in the Supreme Court.”
SC to hear triple talaq
case during vacation
— Compiled by Prabir Biswas
Courts
The Supreme Court clarified that Aadhaar
card could not be made compulsory by
the government for availing the benefits of
welfare schemes, but it could become
mandatory in other areas like opening a
bank account, filing IT returns, getting
mobile numbers, etc.
The Court, however, declined to settle
the Aadhaar card issue quickly by deciding
a date of hearing as the centre was still
coming out with several notifications. It felt
that the issue needed to be examined by a
seven-judge constitution bench and that will
take time. The petitioner, Shyam Divan,
wanted the Court to take up the issue on a
fixed date alleging that its interim order had
been violated. The interim order had asked
the government not to link Aadhaar with
welfare schemes. The Court observed that
the order was enough to address the anxi-
ety of the petitioner.
No hurry to settle
Aadhaar issue
The Supreme Court objected to
the Medical Council of India
refusing entry of colour-blind can-
didates to MBBS courses.
The Court took up the cause of
two such affected candidates
(who could not get admission
despite clearing the entrance
exam) and set up a panel of senior
doctors to find out the branches
where being colour-blind was not
a problem.
It observed that the existing
norms should be changed, as
many countries had no objection
to admitting colour-blind students
in streams where it was not a hin-
drance. It also asked the Medical
Council of India (MCI) to form a
panel of experts from different
streams of medicine and top med-
ical colleges to look into the issue
and ordered that the report be
submitted in three months.
The counsel for MCI argued
that its decision was based on an
expert committee’s report. But
senior advocate KV Vishwanathan,
who was helping the court in the
matter, argued that it would not be
fair to debar their entry outright as
they could actively perform in
some areas.
Moreover, it was against the
fundamental right to do so, he
pleaded.
Admit students
who’re colour-blind
10 April 10, 2017
Invoke IT Act on
Sikh jokes

Briefs
The Lower House of parliament
has cleared four bills related to
the Goods and Services Tax (GST)
on March 29. The four bills are
Integrated GST, Central GST,
Union Territory GST and
Compensation Bill. The GST
Council, which consists of state and
central officials, will now frame new
rules including which goods will be
taxed and at what rate. The process
will start in April. Next the 28
states, along with Delhi and
Puducherry, will enact laws over
three months to roll out the new tax
regime starting July 1. “My congrat-
ulations to all countrymen on the
passage of the GST Bill. New year,
new law, new Bharat,” PM
Narendra Modi later tweeted.
The BCCI has written to the Home Ministry
for its permission to play a bilateral series
with Pakistan later this year, to complete their
obligations under the Future Tours &
Programme (FTP) agreement which was inked
in 2014. The Indian team wants to play in Dubai
which is the home venue of the Pakistan team.
Owing to rising tensions between the two coun-
tries post 26/11, the government had rejected
clearance to host Pakistan in 2016.
Making triple talaq
illegal a sin: AIMPLB
D
eclaring triple talaq illegal
would mean disregarding
Allah’s directions and rewrit-
ing the Holy Quran to force Muslims
to commit sin, the All India Muslim
Personal Law Board (AIMPLB) told
the Supreme Court. Stating that per-
sonal laws are protected under Article
25 of the Constitution (right to prac-
tice a religion of choice), the AIMPLB
said through advocate Ejaz Maqbool:
“If such casual denunciation of the
verses of the holy book is permitted,
then soon Islam would cease to exist.
There would be far adverse conse-
quences as the children born out of
such relationship would be illegiti-
mate and their rights of inheritance in
their putative father's estate would
be questionable.”
Mental Healthcare
Bill passed
Finally, the Lok Sabha passed the
Mental Healthcare Bill 2016
which decriminalises suicide. Union
health minister JP Nadda said: “The
bill gives legal rights to individuals to
seek treatment for mental illness. It
curtails and punishes inhuman treat-
ment or imprisonment to a person
with persistent mental illness.” The
Bill also allows adults to make an
advance directive on how they wish
to be treated in case they suffer
from mental illness in future. A per-
son can nominate a caregiver in
such a case. Unlike
the earlier vague
definition, men-
tal illness and
mental healthcare
is clearly defined.
There are also
special provisions
for women.
BCCI seeks govt nod to
play Pakistan
LokSabhaclears4GSTbills
12 April 10, 2017
The government has tabled a bill in parlia-
ment to give the National Commission
for Socially and Educationally Backward
Classes (NCSEBC) powers equivalent to
those of the National Commission for
Scheduled Castes. The decision is being
viewed as an acknowledgement of the non-
Jatav OBCs voting for the ruling party in UP
as it comes within weeks after the UP elec-
tion results being declared. It also comes at a
time when the Jats are demanding OBC sta-
tus. Once the bill becomes an Act, the states
will not be able to add or delete castes from
the backward classes list without
parliament’s consent.
New panel for
backward classes

Lawyers across India abstained from work
on March 31 to protest a proposed bill
that bars advocates from going on strike and
appoint non-lawyers as members of the Bar
Council of India and state bar councils.
These measures are contained in the
Advocates (Amendment) Bill, 2017, proposed
by the Law Commission and its 266th report
on the Advocates Act, 1961 (Regulation of
Legal Profession) also criticises rampant
strikes by the lawyers. Bar Council of India
(BCI) chairman Manan Kumar Mishra has
said the proposed amendments in the
Advocates Act are “draconian, anti-lawyer,
unconstitutional, undemocratic and anti-
people”. The council, which is having a
falling out with the Law Commission,
has urged the government to reject its
recommendations.
Justice
Ravindra
Singh has
resigned from
his post of
chairman, UP
State Law
Commission, on
March 27. In his
resignation let-
ter, he stated
that he is
resigning from the post without any
political pressure. Speaking to India
Legal, he said that the reason was that
he wanted to practice in the Supreme
Court as he had been declared a senior
advocate by the SC on August 31, 2016.
Justice Ravindra Singh started as an
advocate in December 1978. In 1994, he
was appointed as a government advocate
of the Allahabad High Court. In
September 2003 he was appointed the
additional advocate general of UP. In
September 2004, he was appointed a
High Court judge and retired in July
2015. He settled 137,778 cases and was
given the Awadh Samman by Zee News
for fast disposal of cases. He was the
chairman of UPSLC since May 2016. His
name was recommended for the UP
Lokayukta but the Chief Justice of
Allahabad High Court stated that he was
close to Mulayam Singh Yadav and fami-
ly. In the face of the controversy, he had
withdrawn his candidature.
Justice Singh has clarified that as a for-
mer judge of the Allahabad High Court
he can practice in the Supreme Court
and High Courts other than UP.
UPSLC chairman resigns
Lawyers go on nationwide
strike over Advocates Bill
Aresolution is likely to be passed in
the UK Parliament condemning
Pakistan’s move to make Gilgit-
Baltistan, bordering disputed PoK,
its fifth province. An Early Day Motion
(EDM) tabled in the House
of Commons by Bob Blackman,
a Conservative Party MP, stated:
“Gilgit-Baltistan is a legal and
constitutional part of the state of
Jammu and Kashmir, India, which is
illegally occupied by Pakistan since
1947, and where people are denied
their fundamental rights including
the right of freedom of expression.”
US President Donald Trump is due to
sign an executive order that will
undo the Clean Power Plan of the Obama
administration that sought to limit green-
house gas emissions at coal-fired power
plants. The executive order would also cut
the Environmental Protection Agency's
budget and regulations on oil, gas and
coal production would be reviewed.
Trump reasoned that the green rules
would hurt the economy. The White
House said the new measures would “help
keep energy and electricity affordable,
reliable and clean in order to boost eco-
nomic growth and job creation”. US envi-
ronmentalists warn that it will have seri-
ous consequences.
In a major defeat, President
Trump failed to repeal the
Affordable Care Act. The
House Republican speaker
Paul D Ryan said: “We’re
going to be living with
Obamacare for the foresee-
able future.” Trump told The
New York Times:
“Obamacare unfortunately
will explode.” Ryan said the
Republican bill failed as it did
not have the backing of more
moderate Republicans for
they were aware of the
Congressional Budget Office’s
assessment that the bill
would leave 24 million more
Americans without insurance
in 2024, compared with the
number who would be unin-
sured under the present bill.
Green rules hurt
economy: Trump
Obamacare wins, major defeat for Trump
—Compiled by Usha Rani Das
UK to censure Pak move
on Gilgit-Baltistan

Lead/ Probe/ Badminton Association of India
14 April 10, 2017
VER at Delhi’s
Siri Fort com-
plex, some of the
best badminton
players in the
world are battling
it out in the $325,000 India
Open World Superseries. They
include Olympic medallists Saina Neh-
wal and PV Sindhu along with world No
4 Carolina Marin of Spain and defend-
ing champion Ratchanok Intanon of
Thailand in the women’s draw and top
class players in the men’s draw as well.
Officials of the Badminton Association
of India (BAI)—the national body for
O
The
Badminton
RacketThearrestofaformertop
officialoftheBadminton
AssociationofIndiaforsexual
crimesexposesthemurky
underbellyofanorganisation
thatcontrolsasportwhich
hasgivenIndiatwoOlympic
medallists
By Sujit Bhar
AT THE CENTRE OF CONTROVERSY
Several corruption charges have been levelled against BAI President Akhilesh Das Gupta
UNI

That seems like the height of irony.
That same charge could well be applied
to other members of the BAI, which has
been buffeted by a litany of charges to
do with nepotism, misconduct, and cor-
ruption. That includes its president
Akhilesh Das Gupta (see BOX). Serious
allegations are most likely to be brought
soon, against Das Gupta—a Rajya Sabha
MP, former Union minister and former
mayor of Lucknow— who is currently
enjoying his moment of reflected glory
at the Siri Fort stadium. In a PIL, pre-
pared by Sakshi, an ex-employee of the
Indian Mercantile Cooperative Bank
Ltd., Lucknow, of which Das Gupta was
chairman and Sinha once was CEO and
secretary, she alleges that Sinha and Das
Gupta (son of Banarasi Das, former
Chief Minister of Uttar Pradesh) were
involved in a banking scam amounting
to nearly `100 crores.
The proposed PIL, a copy of which is
available with India Legal, appends
some data, purportedly supporting the
allegations.
The Reserve Bank of India (RBI)
had, in 2009, filed a criminal case
against the bank’s chairman—when Das
Gupta was not chairman—and had also
imposed a `5 lakh penalty (See box 1).
the sport—are basking in the limelight,
even as the perfidy of some of its top
brass adds a new meaning to Badmin-
ton racket.
On March 24, Lucknow police arr-
ested former BAI secretary Vijay Sinha
from his home on charges of sexually
harassing and financially exploiting
under-aged female trainees at the Babu
Banarasi Das UP Badminton Academy
where Sinha was treated as a VIP. The
police were acting on an FIR lodged at
the Gomti Nagar police station in Luck-
now district by Jang Bahadur Singh,
chief of security at the academy, at the
behest of the Uttar Pradesh Badminton
Association (UPBA). The FIR (No. 0252
of 21.02.2017) names three persons as
suspects/ accused. They are Nishant
Sinha (executive secretary), Vijay Sinha
and Karan Shrivastava. Nishant, who is
the son of Vijay, is absconding.
The BAI clearly knew what was com-
ing; Sinha had been expelled from the
Association in January, 2017. The official
statement said: “Sinha is facing a judi-
cial inquiry with regard to the charges of
embezzlement, misappropriation, fraud,
nepotism, favouritism, misconduct, har-
assment of players.”
GLORIOUS
MOMENT
Shuttler PV Sindhu
did India proud at
the Rio Olympics by
securing a silver
medal
Das Gupta became president of BAI
and changed its headquarters without
completion of legal formalities required
under law.
The treasurer never signed on cheque.
Misappropriation in PBL funds:
Franchises given to relatives and associ-
ates in Season 1 favour some owners
such as Sahara, Hyderabad, Mumbai
and Delhi.
Franchise for the first Premier Badmin-
ton League was given to his nephew
Sanjay Govil. Govil’s company’s name is
Infinite Solutions.
Rajesh Saxena, joint secretary, UPBA,
gets his salary from the BAI, this being a
blatant disregard for rules.
Players are not being paid on time for
Badminton World Federation winnings.
The BAI has given fake affidavits in var-
ious judicial proceedings and forums.
Das Gupta made commercial gains
from the national academy, national and
international events. He engaged in per-
sonal commercial branding in the name
of BBD. The president uses badminton
events to promote his own business
initiatives without giving anything back to
the BAI.
Government guidelines are not being
followed by the state associations. Most
of the state officials are being protected
by the president and secretary, as the
state association officials are supporting
them in the BAI elections.
The following are some of his support-
ers:
TPS Puri - VP BAI, Chandigarh
Badminton Association
OD Sharma - J&K Badminton
Association
Punniah Choudhary - CEO, AP
Pradeep Gandhe - Maharashtra
S Muralidharan - Kerala Badminton
Association
SA Raval - Gujarat Badminton
Association
Irregularities
withintheBadminton
AssociationofIndia
Misuse of power: Examples
UNI

was during the ongo-
ing probe against
Sinha and his son
regarding sexual
harassment of players
at the academy. The
crux of the issue is that
the sexual harassment
case was known to Das
Gupta almost four
years before the sack-
ing. After Sinha’s
arrest, he talked to the
press in the presence
of the police. He has
said on record that Das
Gupta had a hand in
several of his corrupt
practices. Sinha
claimed Das Gupta wanted him out of
the federation. “I have submitted a med-
ical certificate signed by the CMO of the
state. I did this because I knew some-
thing was cooking. You don’t need a
medical certificate to carry on the hon-
orary duties of a secretary general. But
all this is done to keep me out,” he said.
Incidentally, Das Gupta had taken
over the reign of BAI after the arrest of
incumbent VK Verma over corruption
charges. Das Gupta has had a chequered
and parallel political career. He was
with the Congress and was nominated
to the Rajya Sabha in 1996 and 2002.
He was a minister for steel in the
Manmohan Singh cabinet. In 2008, he
switched to the BSP to keep his Rajya
Sabha status alive. In November, 2014,
he quit the BSP after party chief Maya-
wati alleged that he had offered her
`100 crore to renominate him for the
Rajya Sabha. Das Gupta denied the
allegation. In January, 2017, he rejoined
the Congress.
OVERAGED PLAYERS
The BAI secretary Sinha, in fact, had
been involved in an earlier case investi-
gated by the CBI on overaged players
being fielded by BAI. An inquiry named
specific players: Chirag Sen, Laa Talar,
Akash Yadav and C Rahul Yadav. Inci-
dentally, this report was sent by the CBI
to Vijay Sinha, when he was secretary of
the BAI (record show it was received on
6/10/2016) and is India Legal’s posses-
16 April 10, 2017
NUMEROUS
COMPLAINTS
(Left) RBI’s response to
Sakshi on her complaint
against Das Gupta;
(bottom) FIR against
Nishant Sinha
It had also ordered the appointment of
an administrator, superseding the board
of directors. What the proposed PIL
alleges is basically this: Das Gupta and
Sinha had been hand in glove in several
questionable dealings for a long time.
They had siphoned off `95.78 crore
through “bogus loans” from the said
bank. It is also alleged that Das Gupta
allowed the bank to invest in the stock
markets, against banking rules, and
incurred losses which the bank had to
absorb. It is also being alleged that the
money thus siphoned off has been
invested in several of Das Gupta’s busi-
nesses, including educational institu-
tions and hotels.
India Legal could not reach Das
Gupta on his cell phone, and sent a
detailed e-mail questionnaire for his
reply to try and get his version of the
charges. Till the time of going to press
no reply had been received from Das
Gupta. In January, Das Gupta, exercis-
ing his emergency powers as head of
BAI, had sacked Sinha as secretary. This

Replying to an RTI application by
Sakshi, an ex-employee of the bank
who has taken it upon her to expose
the supposed misdeeds of the man-
agement, the RBI had written back to
her on December 16, 2010. The letter
(in possession with India Legal) says
the following:
“A few major irregularities were
observed in functioning of the Indian
Mercantile Bank Ltd., Lucknow, during
the course of inspections conducted by
the regional office of RBI. As a conse-
quence of the irregularities noticed,
monetary penalty of `5 Lakh for viola-
tion of RBI directives/ guidelines was
imposed upon the bank. The Bank
[RBI] has also filed criminal complaint
against the Chairman and the con-
cerned Board of Directors in connec-
tion with violation of guidelines and
irregularities committed by the bank as
pointed out by Inspection Team in its
inspection report conducted with refer-
ence to the bank’s financial position as
on March 31, 2007 and a case has
been filed in the court of Chief Judicial
Magistrate, Lucknow on December 1,
2009. Further the board of Directors of
the said bank has been superseded
and an Administrator has been appoint-
ed by the Registrar of Co operative
Societies, UP.”
sion. It conclusively proves the fraud
these players have perpetrated in hiding
their real age, thereby benefitting at
tournaments as well as in securing plum
sponsorship deals from the likes of Air
India and others. PSUs such as Air India
have a policy of supporting promising
athletes. Another irony: In June 2015
70 years in the BCCI are now being
applied to all sporting bodies across the
country. The president of the BAI has a
maximum tenure of three terms, where-
as other office bearers like secretary and
treasurer can hold the office for two sub-
sequent terms. This has not been ad-
hered to.
THE JUNKETS
In 2014, the BAI sent a “team” to Tokyo,
financed by Japan, to take part in a
tournament of the Youth Sports
Exchange Programme. The CBI has
found that in the 23-member team,
seven were officials’ wards and close rel-
atives, including the daughter of BAI
president Das Gupta. Even the private
tutor of his daughter tagged along for
free. That CBI probe covered Das
Gupta, as well as office bearers of the
Delhi Capital Badminton Association
(DCBA). Charges were of nepotism in
selection of the team. This report has
been placed with the sports ministry.
Selection for this “team” was random,
with no trials being conducted.
That wasn’t the end. Here are some
other glaring incidents:
Vinayak Agrawal, son of Shankar
Agrawal, IAS UP Cadre, was appointed
manager of the team for the Swiss Open
tournament in 2015-16.
SENSE OF ENTITLEMENT
BAI vice-president TPS Puri (extreme left),
President Akhilesh Das Gupta (in red jacket),
Vijay Sinha (third from right) and Nishant
Sinha (extreme right) at the UPBA
the BAI had issued guidelines to curb
this menace.
OVERSTAYING OFFICIALS
It’s not only players who are overage.
There are six BAI officials, including the
vice-president and the tournament sec-
retary who are over 70 years old (see
box). The oldest is Manik Lal Saha,
Executive Committee Member, who is
77 years, 1 month old. There is no law in
the BAI that talks about an upper age
limit, but the Lodha Committee recom-
mendations regarding an age limit of
TPS Puri, vice-president (DoB: 27.10.1940) – 76
years, 4 months
Punnaiah Choudary, secretary, tournaments
(DoB: 1.7.1944) – 72 years, 8 months
SA Raval, chairman, coaching & development
committee (DoB: 19.5.1941) – 75 years, 10
months
S Muralidharan, chairman, court officials’ com-
mittee (DoB: 18.01.1945) – 72 years, 2 months
Manik Lal Saha, executive committee member
(DoB: 15.02.1940) – 77 years, 1 month
MC Sethi, executive committee member; DoB:
15.1.1941 – 76 years 2 months.
Agefactor
Names of BAI officials who are over 70:
TheRBI’SPosition

Poonam Sehgal, an employee with
DCBA, went as team manager to the
Commonwealth Games, Glasgow.
Jeo Nawab, a property dealer based
in London, who also holds the curious
post of director BAI (UK and Europe),
was appointed as manager of the
Indian team.
Here, the obvious change can be in
separating power centres. In the BAI,
the president is also the chairman of the
selection committee. This is a big farce
being played out. The important posi-
tion of selection committee head should
be given to some top player, or an emi-
nent ex-player with full authority. Apart
from sending his daughter to Tokyo on
the junket, Das Gupta made her a part
of the UP badminton team for the
18 April 10, 2017
INVESTMENTS EVERYWHERE
(Left and above) The CBI probed the
transactions of Das Gupta with the Indian
Mercantile Cooperative Bank Ltd, under
various names; (bottom) some figures of
these transactions available with India Legal

The BAI funded tickets for the
family members and friends of Das
Gupta to the 2012 London Olympic
Games. And this is a big one: Money
from all sponsors, including Yonex,
was being used for personal gains.
There are some “honorary” mem-
bers at the BAI, who draw salaries.
Within the Babu Banarasi Das
University (BBDU) in Lucknow, of
which Akhilesh Das Gupta’s wife
Alka Das is chancellor, was a natural
water body. This was covered up for
commercial purposes. At that time
Akhilesh Das Gupta was the mayor
of Lucknow.
Funds were arbitrarily transferred
from the BAI to the BBDU
In 2010, the Uttar Pradesh
Badminton Association revived the
post of the chairman and Akhilesh
Das Gupta was elected to the post.
Indian Olympic sports bodies do not
have provision for a chairman’s post.
At that time his right hand man Sinha
was his secretary. It was Sinha who
had told the media then that Das
Gupta had been in that post earlier,
but had resigned in 2004 due to
“certain guidelines”.
High Constitutional authorities have
been hosted at top hotels by Das
Gupta, ostensibly for some gain.
Familyfavours
Largesse offered by Das Gupta to
his kith and kin
Junior Nationals in 2013 at Chandigarh.
She had never played before. He didn’t
stop at that—he made his son, Viraaj
Sagar Das, Associate Vice-President in
UPBA. His nephew has been given the
Delhi team in the PBL.
INDECENT PROPOSAL
The FIR against Sinha talks about inci-
dents in which Nishant had allegedly
enticed some female players with “spe-
cial coaching” opportunities after every-
body had left the academy. He had also
proposed that the players get physical
with him and more. The players had
thereafter stayed away from him.
However, there is a catch. The FIR was
filed on February 22 (see picture on pg
16), while the occurrence of the offence
was on January 23, almost a month
before that. Was this FIR just an after-
thought? One has to keep in mind a
very important aspect in this. Sinha was
no more than a titular head of the acad-
emy. The academy is directly controlled
by Das Gupta. The security man Jang
Bahadur is also employed by Das
Gupta’s other institutions, and is loyal
only to das Gupta. After his arrest,
Sinha openly described how Jang
Bahadur had “thrown” his things out.
THE BANK “SCAM”
If the rest were petty, blue collar crimes,
if allegations in the PIL have to bel-
ieved, this was a graduation to white-
collar deals. Sakshi, the ex-employee,
seems to have taken it upon herself to
force an expose. Here it must be clearly
stated that she had initially filed the
PIL with the Allahabad High Court
(No. 16856 of 2011). The court did not
entertain the PIL because “it lacks terri-
torial jurisdiction”. While Sakshi gave
her lawyer’s address, she herself is a res-
ident of Punjab. That raised questions of
“maintainability”.
While Sakshi is expected to resub-
mit her PIL at an appropriate court
soon, the details of the original PIL
speak volumes.
Sakshi’s original PIL states that the
method of siphoning money from the
bank was through “loans” given to bogus
recipients, most of whom did not even
provide statutory information such as
PAN. The loans were made in several
tranches, and add up to `95.78 crore.
The PIL alleges that Das Gupta and
AspertheFIRof
UPBA,Nishant
Sinhaenticed
somefemale
playerswith
specialcoaching
opportunities
aftereverybody
hadleftthe
Academy.
FormerBAI
secretaryVijay
Sinhareportedly
saidinpolice
custodythat
DasGuptawas
himselfinvolved
insexual
harassment
cases.

his wife Alka (obviously with the con-
nivance of Vijay Sinha), channelled this
money to their other profitable organi-
sations, such as educational institutions
and hotels. She has also alleged (with
certain documents appended) that
the bank diverted funds for specula-
tive investment in stock markets, com-
pletely disregarding RBI and SEBI
banking regulations.
Here is how the “scam” developed, as
per allegations made in the proposed
original PIL:
(NOTE: While the RBI has already
found irregularities and has taken
action, the specific allegations men-
tioned here have yet to be examined by a
court. We produce what has been said in
the original PIL, without comment).
Here are some selected sections:
1989: Akhilesh Das Gupta got licence
No. UBD-UP-922-P for running a bank-
ing business in Lucknow.
1989-1997: Chairman Das Gupta (he
remained chairman till 1998) allegedly
siphoned off `24.97 crores “in cash”,
raising bogus loans.
1997-2002: In 1998 Alka Das Gupta
(Akhilesh’s wife) became chairperson of
the bank.
1999-2000: Sakshi looks at documents
and finds that `24.97 crore loan had
jumped to `47.70 crore. Her inference
was that the excess had again been
siphoned off “for personal use”.
2000-2001: It is alleged that as per
“verbal instructions” from Das Gupta,
Sinha (then CEO and Secretary) and
Jitender Kumar Agarwal (then senior
manager of the bank) started investing
the bank’s money in the “share market”.
It is alleged that “they did day to day
trading/insider trading against
banking norms.”
It is alleged that nearly `30-40
crores were diverted in this manner, out
of which, Sakshi has said, Das Gupta
pocketed `10 crore and the bank took in
the losses. The investible amount was
taken out, again, through the bogus loan
route.
25.03.2001: It is alleged that as per
instruction from Vijay Sinha the bank
raised a secured loan of `75 lakh (loan
acc No. 1927) in the name of one AK
Johari. Sakshi says that Johari never
applied for the loan, because he was
in CBI custody at that time. She also
states that the shares pledged were
the same shares they had bought on
the stock market.
2001-2002: The “loan” amount had
reached `75.92 crores, says Sakshi.
3.11.2001: It is alleged that the bank
submitted a false resolution and false
statements, on the basis of which the
RBI, unknowingly, gave the Certification
of Scheduled Bank.
28.12.2001: It is alleged that a person,
Raj Kumar Ram, was made chairman.
Ram, it is said, had no idea of the “mis-
deeds” of the said duo.
2002-2003: Loan amount shot up to
`95.78 crores, it is alleged.
312.3.2007: RBI finds irregularities.
17.6.2009: Registrar of Societies dis-
solves the board of the bank at the
RBI’s instructions and an Administrator
is appointed.
That is where it stands at the mom-
ent. It would be left to the authorities,
including the RBI, the Registrar of Soc-
ieties, and other investigating agencies
to get to the bottom of the issue. There
is also the CBI case involving the Tokyo
trip and Das Gupta’s involvement.
Incidentally, it is during his long
reign as BAI chief that the sport in
India has taken giant strides. So it was
said of BCCI before the Lodha Commi-
ttee ste-pped in and changed the
management.
20 April 10, 2017
T
he Deputy Registrar of Firms,
Societies and Chits, Lucknow
Mandal, Lucknow, Ajay Gupta,
in his Order of 2017 (No.
10327/10/I-60580, Dated February
3, 2017) has maintained that the UP
Badminton Association office bear-
ers have been carrying on their
work at the association illegally. No
election has been held at the asso-
ciation since 1983, and according
to rules, if elections are not held
every three years, the association
becomes time-barred. This, techni-
cally, means that all office bearers
thereafter have been appointed ille-
gally and have been working in their
positions illegally. By inference,
therefore, all decisions taken by
them, including financial ones, are
liable to scrutiny and could fetch
stringent legal action.
IrregularitieswithinUP
BadmintonAssociation
POWER QUOTIENT
Akhilesh Das Gupta with then UP CM
Akhilesh Yadav

Legal Eye / Hate Speech
T is not as if our laws are insuffi-
cient to tackle hate speech. The
Supreme Court had, in one case in
2014, identified as many as nine
enactments with relevant provi-
sions, dealing with hate speeches
and controlling them. But the imple-
mentation of these provisions is so lax
that the Court itself in that case pleaded
helplessness in making them effective,
and referred it to the Law Commission
to suggest suitable remedies.
Ironically, Justice BS Chauhan,
who presided over that Supreme Court
bench (Pravasi Bhalai Sangathan v
Union of India), found himself being
given the responsibility to answer that
reference as he is now chairman of the
Law Commission.
In its report (No 267), released in
March, the Law Commission defined
hate speech as an incitement to hatred
primarily against a group of persons
defined in terms of race, ethnicity, gen-
der, sexual orientation, religious belief
and the like (Sections 153A, 295A read
with Section 298 Indian Penal Code).
COMPLEX CHALLENGE
The Law Commission observed in its
report: “Hate speech poses complex
challenges to freedom of speech and
expression. The constitutional approach
to these challenges has been far from
uniform as the boundaries between
impermissible propagation of hatred
and protected speech vary across juris-
dictions. A difference of approach is dis-
cernible between the United States and
other democracies. In the United States,
hate speech is given wide constitutional
protection; whereas under international
human rights covenants, and in other
western democracies, such as Canada,
Germany, and the United Kingdom, it is
regulated and subject to sanctions.”
The Law Commission thus suggested
insertion of new sections—Section 153C
(Prohibiting incitement to hatred) and
Section 505A (Causing fear, alarm, or
provocation of violence in certain cases).
Section 153C, according to the Bill
An Uneasy
Compromise
TheLawCommission’srecommendationsonhate
speechandtheApexCourthearingonfreespeech
reviveanolddebate
By Venkatasubramanian
I
22 April 10, 2017
STOKING THE FIRE
BJP candidate from Nawada Parliamentary
constituency Giriraj Singh flashes a victory
sign after being granted bail in a case of
alleged hate speech in Patna
T
he July 29, 2016, gang-rape of a
woman and her teenage daughter
on the highway near Bulandshahr
created a political storm after Samajwadi
Party leader Azam Khan said the gang
rape case could have been a conspiracy
to malign the then Akhilesh Yadav gov-
ernment. The minor victim was forced to
file a petition seeking criminal prosecu-
tion of Khan and for transfer of the case
outside the state.
Khan was let off by the Supreme
Court after he gave an unconditional
apology to the victim, but the tempera-
ture rose again when, last week, attorney
general Mukul Rohatgi said in court that
Khan’s statement can fall within the pur-
view of free speech guaranteed under
Article 19(1)(a) of the Constitution. While
Article 19(1)(a) states that all citizens
have the right to express their opinions
without any hesitation in writing, orally or
in any other mode, Article 19(2) says
restrictions are possible. Restrictions,
while they should be reasonable, can be
imposed by due process of law and must
be purpose-specific.
Also, the judiciary retains the authority
to analyse these restrictions.
The bench of Justice Dipak Misra
and C Nagappan reminded Rohatgi and
framed four important questions in the
context of free speech:
When a victim files an FIR alleging
rape, gang rape or murder or such other
heinous offences against another person
or group of persons, whether any individ-
ual holding a public office or a person in
authority or in-charge of governance,
should be allowed to comment on the
crime stating that “it is an outcome of
political controversy”, more so, when as
an individual, he has nothing to do with
the offences in question?
Should the “State”, the protector of
SpeakingFreely,Legally
The Supreme Court seeks a
constitutional perspective on SP
leader Azam Khan’s comment

Criminal Procedure, with the list of cog-
nizable offences, which are non-bailable,
by adding the new sections of 153C and
505A of IPC.
According to the Law Commission,
the recent decisions of the courts show
that India follows a speech protective
regime as is in practice in the US and
the courts are extremely cautious in
restricting Article 19 of the constitution.
The reason behind such a stance, the
Commission reasoned, is the apprehen-
sion and fear of misuse of restrictive
statutes by the State.
The Law Commission has also rec-
ommended amendment of the Model
Code of Conduct by the Election
Commission to include a provision that
prohibits any kind of speech that pro-
motes feelings of enmity or hatred
between different classes of the citizens
on grounds of religion, race, caste, com-
munity, or language, by a candidate or
his agent or any other person with the
consent of a candidate.
HATE ON THE INTERNET
The Law Commission’s report, however,
does not address concerns over hate
speech on the internet. One can spread
hatred through anonymity, and protect
oneself from retribution, while subject-
ing others to vulnerability, according to
an expert.
As the law stands, it is not possible to
prevent hate speech on the internet, but
can only limit the damage by expecting
compliance with take down orders.
The alternative remedy of shutting the
internet down during a crisis is likely to
have a disproportionate effect on legiti-
mate speech. Seen in this context, the
Law Commission’s recommendations for
inserting new legal provisions without
suggesting how to make the existing
legal regime effective would appear
inadequate.
The law, as has been pointed out by
an expert on hate speech, has a detri-
mental impact on the freedom of
expression, since it is often misused by
the state or used by third parties to
intimidate speakers.
proposed by the Commission, says:
“Whoever on grounds of religion, race,
caste or community, sex, gender identity,
sexual orientation, place of birth, resi-
dence, language, disability or tribe a)
uses gravely threatening words either
spoken or written, signs, visible repre-
sentations, within the hearing or sight
of a person with the intention to cause,
fear or alarm; or b) advocates hatred
by words either spoken or written, signs,
visible representations, that causes
incitement to violence, shall be punish-
able with imprisonment of either
description for a term which may ex-
tend to two years, and fine upto `5000,
or with both.”
Section 505A, in the proposed Bill,
states: “Whoever in public intentionally
on grounds of religion, race, caste or
community, sex, gender, sexual orienta-
tion, place of birth, residence, language,
disability or tribe—uses words, or dis-
plays any writing, sign, or other visible
representation which is gravely threat-
ening, or derogatory;
(i) Within the hearing or sight of a per-
son, causing fear or alarm, or;
(ii) With the intent to provoke the use of
unlawful violence, against that person or
another, shall be punished with impris-
onment for a term which may extend
to one year and/or fine upto `5000,
or both.”
AMEND FIRST SCHEDULE
The proposed Bill also seeks to amend
the First Schedule of the Code of
INFLAMING
COMMUNAL
PASSIONS
A riot-affected
area in Aligarh
citizens and responsible for the law and
order situation, allow these comments
as they have the effect potentiality to
create a distrust in the mind of the victim
as regards the fair investigation and, in a
way, the entire system?
Whether the statements do come
within the ambit and sweep of freedom
of speech and expression or exceed the
boundary that is not permissible?
Whether such comments (which are
not meant for self-protection) defeat the
concept of constitutional compassion
and also conception of constitutional
sensitivity?
Justice Misra asked amicus curie Fali
S Nariman: “You have to tell us whether
such a comment made by a politician
on a rape issue comes under freedom
of speech.” The judge also said that the
court has to compare freedom of spee-
ch with right to life. Nariman said there
are two rights, one under article 19(1)(a)
and another under 21. They have to be
equated and analysed.
The judge also invited Senior Advo-
cate Harish Salve, who was in the court,
to assist in the issue. Salve said Article
19(1)(a) is limited by Article 19(2) and
Part III of the Constitution.
Finally, when Nariman asked for
more time to do proper research, the
matter was adjourned, to be taken up
again on April 20.
UNI

Politics/ Slaughterhouses
24 April 10, 2017
HEN Yogi Adityanath
took over as chief minis-
ter of UP a week ago, the
first thing he did was to
close down slaughter-
houses without licences. The situation
that emerged was that overnight all
meat shops were forced to down shut-
ters across the state. This was due to
two reasons. As the slaughterhouses
were closed, the small shops could not
get their supply of meat. And the shops
which were both slaughterhouses and
meat sellers had to close any way.
There was however no written order
from the new government. District mag-
istrates of all the 75 districts told their
subordinates that the butchers’ outlets
should be closed. The oral directive trav-
elled down the hierarchy, and inspectors
and constables went to the shops and
had them closed.
NO PROPER LICENSING
The irony is that there has not been a
proper licensing system as such in the
state. The sanitary and food inspector
from the municipality would go round
and collect a charge, giving a receipt in
return. When the shopkeepers showed
the receipts to the police, they were told
that this was not a licence. As the out-
of-business meat sellers milled around
the district magistrate’s office, the lower-
ranking officials told them to re-open
their shops and sell chicken quietly. But
the shopkeepers are still hesitant. They
are apprehensive that they might face
trouble on one count or the other.
It is a coincidence that it is the time of
Navratri, where the meat sales go down
by as much as 75 per cent, indicating that
Hindus, who are majority of the con-
sumers, abstain during the nine days. But
for most poor Muslim families, meat is
their staple. And that too, buffalo meat. It
is `250 a kg compared to mutton which
sells at double the price. The family cooks
the buffalo meat, and they make rice or
roti and the meal is done. And it feeds a
family. Now, they have been left high and
dry. Well-off Muslim families can afford
Meatless in BJP’s UP
Theproblemofslaughterhouseswassimmeringlongbeforethenewgovernmentacted
peremptorilyinthematter.Nowthatithasdirtieditshands,itwillhavetodotheclean-up
By Parsa Venkateshwar Rao Jr
CM TAKES CHARGE
The slaughterhouse controversy was given to
the new government on a platter. The CM
gave it a political spin
W
Photos: UNI

to buy mutton at higher prices and they
are not affected.
But the problem of slaughter houses
was simmering much before the dra-
matic victory of the BJP in the assembly
elections on March 11. For instance,
there has been a clash between the
Lucknow Nagar Nigam and the Uttar
Pradesh Pollution Control Board in the
case of a slaughterhouse at Motijheel in
the state capital.
Mohd Ayaz Qureshi, whose family
owns an established slaughterhouse in
Lucknow, traces the story back to 2014
when Lucknow municipality refused to
renew the annual licence. The reason
was that the municipality had failed to
adhere to Section 33A of the Water
(Prevention And Control of Pollution
Act) 1974 and it had to close the slaugh-
terhouse on the basis of the pollution
control board’s order of August 13, 2013.
But it continued to function even as the
owners paid bribes to the municipality.
A Public Interest Litigation (PIL)
writ petition was filed at the Lucknow
Bench of the Allahabad High Court. In
their order of March 11, 2015, Justices
DY Chandrachud and Ranjan Roy
issued a directive that the state adminis-
tration and the board should see to it
that the slaughterhouse did not func-
tion. They observed: “In the present case
it is undisputed that the State Pollution
Control Board has issued orders for clo-
sure under Section 33A of the Act on 22
August 2013. Despite this, it has been
stated before the Court by the learned
counsel appearing on behalf of the
Lucknow Nagar Nigam that the Nagar
Nigam is continuing with the activities
of slaughtering in the slaughterhouse.
This is nothing but a brazen violation
of law by a local authority which
is impermissible.”
The judges took note of the fact that
the Supreme Court has been monitoring
the issue of the slaughterhouses in Uttar
Pradesh in Laxmi Narain Modi vs the
Union of India of 2003. In its order of
August 23, 2012 the court took note of
the decision of April 26, 2012 of the
Union Ministry of Environment and
Forests that “required the State
Governments to constitute State
Committees for slaughterhouses to over-
see modernisation, relocation of slaugh-
terhouses which are located within or in
close proximity of residential areas and
to recommend appropriate measures for
dealing with solid waste and pollutants.”
PROBLEM NEEDS RESOLUTION
Qureshi says that the Lucknow munici-
pality has no marked slaughterhouse
area as mandated. His family has mod-
ernised its slaughter-house facility by
spending more `25 lakh to `40 lakh. In
effect, the authorities in UP have no
clear guidelines with regard to slaugh-
ter-houses and meatshops in the state.
The butchers are at the mercy of the
local authorities’ whims.
Iftikhar Hasan of Meem Agro Foods,
which has a slaughter house in Shamli
in Uttar Pradesh and which is engaged
only in exports, explains that the meat
shops come under the purview of the
municipalities and the slaughterhouses
fall in the jurisdiction of the Food Safety
and Drugs Administration Authority.
The big slaughterhouses do not face a
problem because they operate with the
required licences. The problem arises
with the local meat shops, many of
which do not always have a licence.
Hasan says that the state government is
not after the meat business as such but
there is suspicion about cows being
killed and their meat being sold.
It is clear that the Adityanath gov-
ernment did not create the slaughter-
house controversy. It was given to the
new government on a platter, and the
chief minister had given it the right
political spin. It burnishes the image of
the saffron-clad chief minister as the
representative of Hindu orthodoxy. But
the dramatic thrill is indeed momentary.
It also poses a challenge to the state gov-
ernment and the local authorities. They
would have to find alternative sites for
the slaughterhouses and create the nec-
essary infrastructure. The livelihoods of
thousands of people need to be sus-
tained, and the food needs of millions
catered to. The government would have
to focus on the meaty issue than it
would want to.
Or will it be the case that once the
Navratri ends, the authorities would let
the mess of slaughterhouses be?
Thecontroversycomes
duringNavratriwhenHindus
abstainfromeatingmeatand
salesfallby75percent.

Economy/ Banks
E have been condi-
tioned to repose
faith in our banks.
Advertising and
promotional mate-
rial have over the
years repeatedly reinforced the message
that the folks who safeguard our money
are above board and serve our interests.
It is only after demonetisation and the
chaos that it unleashed that we began to
take a second look at our banks.
Suddenly, the cracks surfaced and the
guardians of our earnings began to
look different—almost indifferent to our
concerns.
Last fortnight, a group of bank cus-
tomers, former bankers, NGOs, con-
sumer activists and senior business jour-
nalists Sucheta Dalal and Debashis Basu
met in Mumbai to deliberate over the
concerns of bank customers. In a mem-
orandum to RBI governor Urjit Patel,
with copies to the prime minister, Union
Short-changing
Customers
Theseinstitutionsmustrespecttherightsofcustomersandnotripthemoff,saydepositors,
formerbankersandactivists.ItishightimetheRBIbroughtsomeorderintothechaos
By Ajith Pillai
W
26 April 10, 2017
DEMONETISATION
BLUES
People queue up to
exchange or deposit
old notes outside a
bank in Mumbai
Photos: UNI

Public anger against banks was muted
but came to the fore when some of
them, including SBI, recently
announced the decision to limit free
withdrawals and charge people for addi-
tional use of ATMs and cheque facility.
Dalal, who has been campaigning for
bank customer rights, said: “These
charges are hefty. Many banks plan to
charge as much as `150 after every
fourth or fifth withdrawal. The govern-
ment’s studied silence over the anger
spilling out on social media suggests a
quiet deal to allow banks to recover
their losses on the extra time and effort
made during demonetisation.”
FAILING PROMISES
The memorandum highlights how the
RBI may have good intentions but does
not put them into practice. Thus, it
issued a draft circular in August 2016 on
limiting customer liability and shifting
the onus of proving customer fault in an
unauthorised transaction on banks. But
a final circular is yet to be issued. The
memorandum notes that “with the
increased use of digital payments post
the demonetisation drive, it is necessary
to have in place a mechanism or system
to protect customers… A Master circu-
lar/notification by the Reserve Bank on
limiting liability in an unauthorised
banking transaction will make a huge
impact on protecting customers
from frauds.”
That bank frauds which impact cus-
tomers are a matter of concern would be
an understatement. According to RBI
finance minister and secretary, financial
services in this ministry, they questioned
some of the practices followed by the
banks. They urged the RBI to urgently
change policies to ensure that banks
treat their customers fairly.
ARBITRARY CHARGES
The memorandum said: “We are dis-
turbed at the unfair treatment that bank
customers suffer in the form of frequent,
arbitrary and one-sided increase in
banking charges, or the refusal of banks
to automatically pass on contractual
benefits such as lower interests to those
with floating rate home loans or the
rampant mis-selling of third party prod-
ucts such as insurance.”
While the memorandum addressed
several issues relating to digital pay-
ments, unfair agreements, faulty sys-
tems and frequent upping of charges, it
also pushed for the proper implementa-
tion of the RBI Charter of Customer
Rights issued in December 2014. This
Charter had recognised five basic
rights—right to fair treatment; right to
transparency; right to suitability (prod-
ucts offered should be based on an
assessment of the customer’s financial
circumstances and understanding);
right to privacy and right to grievance
redress and compensation.
The RBI had asked banks to imple-
ment the Charter but that has not been
done. As a result, it exists only on paper
and requires a formal directive from the
central bank before it is implemented.
“The Charter covers almost every
problem that consumers are likely to
face. But three years later, the RBI has
not fixed time frames for grievance
redressal nor announced penalties for
failure to treat consumers fairly,
despite repeated appeals by consumer
groups. Consequently, the Charter
remains a toothless statement,” says
the memorandum.
AccordingtotheRBI,there
were3,870bankfraudcases
involving` 17,750.27crore
reportedbetween
April-December2016.
“Thesecharges
arehefty.Many
banksplanto
chargeasmuchas
`150afterevery
fourthorfifth
withdrawal.”
SuchetaDalal,
seniorbusiness
journalist

28 April 10, 2017
figures, there were 3,870 cases involv-
ing `17,750.27 crore reported between
April-December 2016. SBI reported
frauds worth `2,236.81 crore, Axis
Bank, `1998.49 crore and Punjab
National Bank, `2,250.34 crore. With
online banking being given much
prominence, the fear is that these num-
bers will only increase.
OWN RULES
In the confusion that prevails post-
demonetisation, banks are known to
enforce rules of their own at the local
level. Thus, customers in several banks
in Delhi–both private and PSUs—dis-
covered recently that new `2,000 and
`500 notes were not being accepted if
they had any writing or ink marks on
them. They were told that this was part
of the RBI’s “Clean Note” policy.
However, when a journalist of The
Sunday Guardian approached the RBI,
its spokesperson Alpana Killawala, had
this to say: “The RBI does follow the
clean note policy, but that does not
mean that the banks can reject a
currency note which has an ink
mark or scribbles on it. It is very much
legal tender and the banks should
accept such notes.”
The truth is that the RBI did issue a
circular in August 2015 where it urged
the public not to “inscribe’ on notes as
part of its larger plan to withdraw
I
n the context of banks being
unfair to customers, the March
15, 2017, ruling of the National
Consumer Disputes Redressal
Commission becomes pertinent. It
awarded a compensation of
`10,000 but more importantly,
pulled up the Sandhurst Road
branch of HDFC Bank in Mumbai
for refusing to hand over cash to a
bearer of a cheque as “a clear case
of deficiency in service”.
The case goes back to May
2010 when Prakash Sheth present-
ed a bearer cheque for `3 lakh to
the Bank issued by his nephew,
Chirag. Prakash needed the money
urgently for a hospital treatment of
his mother. The cashier told him that
he would have to come back later
because of paucity of funds at the
branch. When he returned, the
cashier demanded a photo-ID
from Prakash, which he was unable
to furnish.
The Bank then followed the nor-
mal practice of calling up Chirag to
confirm if he had issued such a
cheque and if it must be paid to the
bearer. The cashier as well as the
bank manager went through the
process but refused to honour the
cheque till Chirag came in person to
the Bank. He could not present
himself and the cheque was
not honoured.
Prakash decided to fight the
case and justice came to him seven
years later. He told the media:
“Most banks harass non-account
holders who come with bearer
cheques. Mine was perhaps the first
challenge before a legal forum. This
case will spread literacy amongst
consumers or bearer cheque hold-
ers, and will hopefully be a lesson
to similar banks who adopt this mal-
practice.” – Ajith Pillai
Honouredatlast
A March 15 order says that
banks must process bearer
cheques without asking for
ID proof
soiled notes to replace them with fresh
currency. But it also urged banks to
accept soiled notes so that customers
would not have to approach the
central bank to exchange them. The
circular was merely given a twist by
individual banks and customers need-
lessly harassed.
The memorandum to the RBI also
addresses the issue of banks increasing
charges and billing customers “by
stealth through opt-out clauses that are
not noticeable that must be stopped
immediately.” Thus, banks are known to
levy charges for an “invite only program
which assumes that the customer is
already in and willing to pay for it. The
levy is only stopped when the consumer
notices and calls the bank to protest”.
Very clearly, the RBI needs to
spell out clear-cut rules that protect
customer rights in the digital era. It
must not allow banks to arbitrarily
draw up terms of engagement in which
the customer is constantly short-
changed and made to pay for errors
committed by employees or algorithms.
If the central bank does not act, then
the banking system runs the risk of
losing credibility.
WHITHER REFORMS?
Reserve Bank of India Governor Urjit Patel
with Finance Minister Arun Jaitley (right)
at a seminar in Mumbai
Economy / Banks

Environment/ BS-III vehicles
30 April 10, 2017
OLD your breath. You
might soon be able to
breathe in less toxic air.
In a landmark judgment,
the Supreme Court asked
auto manufacturers to
stop selling BS-III vehicles from April as
new emission norms will kick in. Only
Bharat Stage IV vehicles can be sold.
A bench of Justices Madan B Lokur
and Deepak Gupta brushed aside objec-
tions by the auto industry that it has a
huge number of vehicles and it would be
seriously dented if not allowed to sell
them. The bench said that the health
and well-being of millions of people
were more important than the commer-
cial gains or losses of the industry.
The auto companies were aware that
new emission norms would come into
force in April but they did not bother to
upgrade their technology and move
towards manufacturing vehicles that
would adhere to the new norm.
Apparently, it thought it would be able
to persuade the Court to extend the
deadline and most of the companies
continued to manufacture BS-III
vehicles when they should have
stopped production.
This judgment will hit them hard. At
the moment, companies are holding a
stock of 8,24,275 BS-III vehicles. These
include 96,724 commercial vehicles,
6,71,308 two wheelers, 40,048 three
wheelers and 16,198 cars.
And the government, instead of put-
ting pressure on the manufacturers to
systematically slow down production,
was pleading with the Court earlier to
permit companies to sell their existing
stock of BS-III vehicles. The manufac-
tures told the Court that they had
stopped manufacturing BS-III vehicles
from March and its order would result
ArulinghasaskedautomanufacturerstostopsellingBS-IIIvehiclesfromApril.Theyhaveonly
themselvestoblameasenoughtimewasgiventoswitchtoBS-IVnorms
By Ramesh Menon
H
End of the Road
SPEWING SMOKE Vehicles add to the pollution
on the roads even as commuters (above) are
foced to wear anti-pollution gear
Photos: Anil Shakya

in them suffering losses to the tune of
`12,000 crore as they were now
stuck with a junk inventory of over eight
lakh vehicles.
Petitioner MC Mehta, who has
fought many environmental battles in
court, told India Legal: “The govern-
ment should be concerned about the
health of the people and not try to
protect the narrow interests of the man-
ufacturers who just look at profit. The
government should have done this long
back instead of waiting for a court order.
It should be driving change and not
the court.”
Appearing for the Society of Indian
Automobile Manufacturers (SIAM),
senior advocate AM Singhvi pleaded
that the companies be allowed to dis-
pose the existing stocks in seven to eight
months. The Court turned it down.
UPGRADE VEHICLES
These vehicles will have to be upgraded
to be sold in India or have to be export-
ed. It is only Bajaj Auto which pushed
for new emission norms along with
green lobbies. Said Mehta: “India can-
not be a junkyard of obsolete technology
which developed countries are forcing
on it. While they opt for cleaner tech-
nology, they push old models into India.”
The government told the Court that
earlier, manufactures were allowed to
sell their stocks when new emission
norms came in 2005 and also in 2010.
But the Court refused to listen to them.
Appearing for Hero Moto Corp, senior
counsel KK Venugopal, pleaded that the
company should not be punished for
holding old stocks and should be per-
mitted to sell them.
The Court agreed with amicus curaie
Aprajita Singh who pointed out that if
the old vehicles were allowed to be sold,
they would be running around for
another ten to 15 years and contributing
to the pollution load of already deterio-
rating air quality. After all, she said,
these companies were well aware that
the new norms were coming in and they
should have moved to the new norms.
WALK EXTRA MILE
Anumita Roychowdhury, executive
director, Centre for Science and
Environment, which has been lobbying
for new emission standards and strict
implementation of air pollution laws,
said: “This is a significant step forward
and the lesson to be learnt is that the
automobile industry will have to walk
the extra mile to address concerns about
public health and not weigh down the
transition by taking a narrow technical
view. As many as 20 million vehicles
are registered in a year. Most companies
did not slow down the production of
BS-III vehicles. There was no
proactive strategy in place to prepare for
this transition.”
Even in January and February this
year, auto manufacturers continued
churning out vehicles with old emission
norms. SIAM says that this was because
sales are always high in the first few
months of the year, which confirms that
there was no conscious effort to shift to
BS IV. In January 2016, Leyland pro-
duced 10,935 vehicles, while in January
2017, it produced 11,563 vehicles! The
Supreme Court-mandated Environment
Pollution Control Authority had clearly
indicated in October 2016 that new reg-
istrations of these vehicles would not be
allowed beyond March 31 this year.
The only manufactures who quickly
followed the new norms were Maruti
Udyog Ltd, Toyota, Hyundai, General
Motors and the leading two-wheeler
manufacturer, Bajaj Auto Ltd. The
refinery sector has already made enor-
mous investments to improve their tech-
nology and upgrade the fuel quality to
BS-IV from April 1, 2017.
The transition from BS-III to BS-IV
is critical as it leads to substantial
reductions in particulate matter emis-
sions. For instance, for new trucks, the
emissions can dip by 80 percent and
from cars by half. Similarly, hydrocar-
bon and nitrogen oxide emissions – a
big concern from two-wheelers – can
reduce by 41-80 per cent depending on
the engine size. It was a decision that
had to come.
The 2017 Global Burden of Disease
report says India has the second highest
number of early deaths due to PM2.5 in
the world. Early deaths due to ozone
pollution are the highest in India. More
than a quarter of global deaths due to
air pollution occur in India alone.
The Court has sent out a clear mes-
sage. It is now for the government to do
numerous things to cut down the
extremely high levels of pollution in
Indian cities.
EveninJanuaryandFebruary
thisyear,automanufacturers
continuedchurningoutvehicles
witholdemissionnorms.
UNI

Aviation/ No-fly List
32 April 10, 2017
T was in June 2014 that Sanjiv
Kapoor, then COO SpiceJet,
reportedly tweeted: “Ground
staff, cabin crew in India takes a
lot of abuse. This kind of behav-
iour would send people behind
bars in other parts of the world. You
cannot abuse crew ever!” Indeed. Airline
staff in India is often at the receiving
end of many abuses. This was seen
recently when Shiv Sena MP Ravindra
Gaikwad slapped an AISATS (a joint
venture with Air India and SATS)
employee with his slippers, creating a
furore and forcing airlines to think of a
no-fly list (NFL) which bans such pas-
sengers on their flights.
Indians are often perceived as bad
air passengers, using threats, tantrums
and harassment to get their way in
planes. On March 9, Minister of State
for Civil Aviation Jayant Sinha, while
replying to a Lok Sabha question, gave
airline-wise details of unruly passengers
from July 2016 till date. (See Box) The
severe beating of the AISATS staff, 25
times as the MP himself bragged, was
fellow passengers or staff while on board
aircraft.”
It further adds: “Airline shall estab-
lish mechanism to detect and report
unruly passenger behaviour at check-in,
in the lounges, and at the boarding gate
in order to prevent such passengers
from boarding. In case of occurrence of
an act of unruly behaviour while the air-
craft is on the ground, such cases shall
be reported immediately in writing and
First Information Report (FIR) lodged
with security agency at the aerodrome
for assistance.”
Amber Dubey, partner and India
head of aerospace and defence at global
consultancy KPMG, told India Legal
that aviation laws in India are derived
from Aircraft Act 1934 and ICAO
Standards & Recommended Practices.
“These Practices are detailed out within
19 Annexures to the Chicago Conven-
tion. Annex 17 deals with all aspects of
civil aviation security but does not cover
the establishment of a no-fly list. It
does, however, provide adequate powers
to member states to enact their own leg-
Slap Down
by AirlinesTheassaultonanairlineemployeebyanMPledtocarriersbanningthe
politicianfromtheirflights.ButisthislegallytenableandshouldIndia
haveablacklistlikesomewesternnations?
By Shobha John
I
the last straw. With AI banning
Gaikwad from its flights and other air-
lines following suit, it seems like a
wake-up call to not tolerate passenger
loutishness any more. But are these
measures legally tenable?
UNRULY PASSENGERS
According to Section 3, Series M, Part
VI of the Directorate General of Civil
Aviation’s Civil Aviation Requirements
(CAR), dated November 18, 2014,
which deal with the handling of
unruly/disruptive passengers: “Pass-
engers who are likely to be unruly and
disruptive must be carefully monitored,
and if necessary, refused embarkation
or off-loaded, if deemed to pose a threat
to the safety and security of the flight,
No-flylistsbecamepartof
aviationlexiconafterthe9/11
attacksintheUSandmany
countrieshavesuchlistsunder
differentnames.

islation to secure civil aviation. India is
free to enact a no-fly list (NFL) if it
deems it necessary.”
In India, the Bureau of Civil Avia-
tion Security (BCAS) regulates security
matters and the DGCA regulates safety
matters, explains Dubey. “The DGCA
CAR (Section 3, Series M, Part VI)
deals with unruly passengers and lays
down the procedure to file an FIR.
BCAS and DGCA have no provisions
for an NFL presently, though various
stakeholders have been demanding the
same for quite some time now,” he said.
URGENCY NEEDED
There’s an urgent need for corrective
measures in Indian aviation, stressed
Dubey, due to many factors. There is the
increased risk from terror groups, more
first-time flyers who are confused and
longer security queues, all leading to
higher anxiety levels in passengers and
unruly behaviour.
Kanu Gohain, former Director-Gene-
ral of Civil Aviation, told India Legal
that this CAR was hurriedly written. “It
only talks of what to do with such a pas-
senger when he boards or disembarks. It
does not factor in suspension and dis-
missal of such a person from future
flights. The government should bring in
legislation akin to those for drunk pilots
where the time period of suspension and
dismissal are clearly enunciated.”
Asked if he favoured a permanent
ban on Gaikwad, Gohain said: “Human
beings often act on the spur of the mo-
ment. I would prefer a temporary no-fly
ban on such passengers. As this MP is
attending parliament presently, let the
ban take place after it is over.” But surely
an apology from the MP would have
cooled down tempers.
No-fly lists became part of aviation
lexicon after the 9/11 attacks in the US
and many countries have such lists un-
der different names such as the US,
Canada and Malaysia. In almost all ca-
ses, the list is based on serious threats to
security such as terrorism, drug-traffick-
ing, sexual offences, etc.
“A no-fly list in the US is maintained
by the FBI’s Terrorist Screening Center
and is disseminated to all airlines and
some friendly countries. No rationale is
provided as to how the threats are
examined and classified,” said Dubey.
LIFETIME BAN
Are these no-fly lists permanent? In
April 2015, the US government announ-
ced that it would inform US citizens and
lawful permanent residents whether
they are on the NFL, and, possibly, offer
reasons for the same. In October 2015,
No of unruly passengers in
scheduled airlines from July
2016 to March 2017:
Freeforall
TICKET TO RUDENESS
Shiv Sena MP Ravindra Gaikwad beat up an AISATS
staffer; a passenger who abused Hillary’s supporters
on-board a Delta flight was banned for life by the airline
Jet Airways
Vistara
Go Air
Air Asia
SpiceJet
Indigo
01
06
05
09
20
12
Source: Answer by Jayant Sinha in the Lok Sabha

their own. For example, in 2015,
budget airline Jet 2 put a lifetime ban
on 50 passengers for “unacceptable
behaviour”.
In India, meanwhile, a statement by
Civil Aviation Minister P Ashok
Gajapathi Raju in the Lok Sabha has
come as a shot-in-the arm for airlines.
“The rules are the same for everyone.
We have good safety regulations but
never in my dreams expected an MP to
be caught (doing this). Violence of any
kind can be a disaster for airlines,” he
said. And in another incident, Air India
is also planning to warn stand-up come-
dian Kapil Sharma for creating a ruckus
during a flight to Australia.
TIME FOR A BLACKLIST?
Though aviation officials are examining
if India can blacklist such disruptive
passengers, it is high time it had one to
stop such loutish and high-handed
behaviour. A senior commander assert-
ed that every airline has the right to
a federal court ruled that district courts
have jurisdiction to hear challenges to
NFL, establishing a precedent for courts
throughout the US, said Amber Dubey.
According to The Washington Times,
FBI’s no-fly list in 2016 contained about
81,000 names, but fewer than 1,000
of those are “US persons”. Delta Airlines,
for example, imposed a lifetime ban
in November 2016 on a passenger
who disrupted a flight by yelling state-
ments in favour of then US President-
elect Donald Trump and insulted
women who supported Democratic
candidate Hillary Clinton by calling
them “Hillary Bitches”.
The UK does not have a no-fly list,
though individual airlines can have
34 April 10, 2017
Aviation/ No-fly List
MATTERS OF COURTESY
A cabin crew member of AI; airline staff have
to sometimes deal with brash behaviour
TheCarriagebyAirAct,1972in
ChapterV,Section33states:
“Nothingcontainedinthis
Scheduleshallpreventthecarrier
eitherfromrefusingtoenterintoany
contractofcarriage,orfrommaking
regulationswhichdonotconflictwith
theprovisionsofthischedule”.
AsthisActdoesnotspecificallypro-
hibitblacklistingapassengerandiden-
tifiestherightofacarriertorefuseto
enterintoanycontractofcarriage,it
couldbeinferredthatitmaymakeregu-
lationstoblacklistanunrulypassenger.
Also,Rule23oftheAircraftRules
1937specifies:“No
personshall,on
boardanaircraft:
assault,inti-midate
orthreaten,whether
physicallyorverbal-
ly,anyperson,which
islikelytoendanger
thesafetyoftheair-
craftorofanyper-
sonorjeopardizesthegoodorderand
disciplineonboardtheaircraft.”Itpro-
videsforimprisonmentofuptoone
yearand/orfinenotexc-eeding` five
lakhforcontraventionofRule23ofthe
AircraftRules.
Thelawonblacklistingofpassen-
gersisnotclearasdefinitiveguidelines
arenotavailable.Whileairlinescan
formulatetheirownsafetyprocedures,
theymustexercisethisoptionwith
caution.Ifthemattergoestocourt,it
willtrytobalancetheFundamental
RightsoftheMPtofreelymovewithin
thecountry(Article14,19and21ofthe
constitution)andtherighttolifeoffel-
lowpassengers(Article21).
Inthecaseoftherecentincident,a
permanentorlongertermbanwillbe
disproportionatetotheoffencecom-
mitted.Criminallawshouldtakeits
owncourseinthiscase.
—RameshVaidyanathan,Managing
Partner,AdvayaLegal,alawfirm
dealingwithaviationissues
AircraftRules

deny admission to a passenger. He said
there had been a move some 3-4 years
back by an airline to have a blacklist. “It
was discussed with the DGCA and it
had even asked the opinion of other air-
lines, but nothing much came out of it,”
he claimed. Any such list will have to be
full-proof using certain identifications
such as Aadhaar, have a time-frame and
redressal mechanisms.
“I would welcome such a ban on un-
ruly passengers. I have personally hand-
ed over five passengers to the police dur-
ing my career with various airlines. Sla-
pping someone is a criminal offence and
anyone who says his constitutional right
is infringed with a ban should know that
certain responsibilities also come with
such rights,” he added.
Some airlines such as Air India also
have plastic handcuffs on board. And
Section 3 of the CAR allows airlines to
use them as it says that “restraining
devices should be used when all concil-
iatory approaches have been exhausted”.
Some airlines also have sky marshals on
board on certain sensitive routes and in
plain clothes. They were introduced
after the Kandahar hijacking where an
AI plane was hijacked from Kathmandu
to Delhi by the Harkat-ul-Mujahideen
on December 24, 1999.
The incident involving the MP shows
that the government needs to come up
with a NFL, said Dubey. “If there are
delays in creating the list, there’s a risk
that airlines may develop their own uni-
laterally as seen recently. That may lead
to avoidable controversies.” It is also
important that airlines and the govern-
ment don’t misuse this list to harass
opponents. In the US, three Muslims
sued the FBI for putting them on an
NFL, saying it violated their constitu-
tional rights. They claimed compensa-
tion despite being taken off the list.
Aviation insiders are glad the Gaik-
wad incident has drawn attention to a
problem they face daily—unruly passen-
gers. Security, after all, in no laughing
matter at 30,000 feet.
Endangering the
safety of an aircraft and
persons therein
Drunkenness/ smok-
ing in the aircraft
Failure to obey the
commands of the
commander
Using any threaten-
ing, abusive or insulting
words towards the crew
Intentionally interfer-
ing with the perform-
ance of a crew mem-
ber.
Whatisunruly
behaviourin
theair?
Source: DGCA
“Therulesarethesamefor
everyone.Wehavegood
safetyregulationsbutnever
inmydreamsexpectedan
MPtobecaught(doingthis).
Violenceofanykindcanbea
disasterforairlines.”
PAshokGajapathiRaju,civil
aviationminister
“Thegovernmentshould
bringinlegislationakinto
thosefordrunkpilotswhere
thetimeperiodofsuspen-
sionanddismissalareclearly
enunciated.”
KanuGohain,former
Director-GeneralofCivil
Aviation
“Iftherearedelaysincreat-
ingthelist,there’sariskthat
airlinesmaydeveloptheir
ownunilaterallyasseen
recently. Thatmayleadto
avoidablecontroversies.”
AmberDubey,partnerand
Indiaheadofaerospaceand
defence,KPMG

Column/ Aviation/ No-fly List
36 April 10, 2017
HE expression un-parliamen-
tary is commonly used to con-
demn any phrase, word or act
lacking civility of any person
in a public forum. The parlia-
mentary standard of conduct is used as
a measure to judge the civility of a per-
son. Ravindra Gaikwad, a parliamentar-
ian, when not given the privilege of trav-
elling in the Executive Class of an Air
India flight from Pune to Delhi,
indulged in abominable conduct by
repeatedly assaulting one of the staff
with a slipper. Air India rightly did not
permit him to travel in the flight back.
Further, the airline imposed a life ban
on Gaikwad on its flights henceforth.
Private airlines, exhibiting a spirit of
comradeship, followed suit.
Gaikwad, by his criminal miscon-
duct, has exposed himself to an indefea-
sible prosecution and eventual convic-
tion for an offence of assault on a public
servant which prevents him from dis-
charging his duties. This is punishable
under Section 353 of the IPC and for
voluntarily causing hurt, punishable
under Section 323. Assuming for a mo-
ment that Gaikwad was provoked by the
victim and committed the said act of
criminal misconduct, he would still be
liable for conviction under Sections 333
and 334 of the IPC. At any rate, he can-
not escape from the clutches of law sin-
ce it is imponderable to expect the vic-
tim of assault and other witnesses not
supporting the prosecution case before
a court of law.
However, a question would arise
whether the imposition of a life ban on
Gaikwad which does not permit him to
travel in domestic airlines is valid under
law? The relevant provisions of Article
8.1 of the General Conditions of Carr-
iage for Passengers & Baggage of Air
India Limited permits the carrier “to
refuse the carriage of any passenger for
the reasons of safety or in the exercise of
its reasonable discretion:- the carrier
determines that the conduct of the pas-
senger cause discomfort or make him-
self or herself objectionable to other
passenger or involve any hazard or risk
to himself or herself or to other persons
or to the property.” The rules of other
private airlines have a similar provision
that “the Airline can refuse to carry the
passenger if the customer has commit-
ted misconduct on a previous flight and
there is a reasonable likelihood of such
conduct may be repeated”.
G
aikwad has, indeed, committed
a criminal misconduct punish-
able under law. But Air India
and other airlines cannot put a life ban
on him. The fact that he assaulted the
airline’s staff does not permit an infer-
ence of repetition of such misconduct in
future travels. Airline rules give discre-
tion to them to reject travel facility in
case of objectionable misconduct of a
passenger like in the present case. The
airlines’ right to refuse emplaning the
passenger for misconduct under the rule
is limited to the incident and the flight
in question. Such discretion cannot be
stretched to impose a life ban either by
the aggrieved airline or other airlines in
a trade union spirit.
The conduct of airlines in imposing a
life ban goes against the Fundamental
Right under Article 19 (1) (d) which
gives freedom of movement and Article
21 of the constitution which ensures life
and liberty. The Supreme Court in
Satwanth Singh Sawhney vs Rama-
nathan and others has held that the
expression personal liberty in Article 21
includes right of locomotion and travel
abroad and no person can be deprived
of the right to go abroad except accord-
ing to the procedure established by law.
With regard to criminal misconduct
committed by Gaikwad, he has to suffer
the consequences of criminal law, but
further imposition of life ban to travel in
any airline would be a highly excessive,
arbitrary and unreasonable restriction.
If the logic of the airlines is to be accept-
ed, every criminal convicted may have to
face denial of his civil and human rights.
Air India or any private airline is
rendering public service in the discharge
of its duties. It is mandatory on their
part to ensure the Fundamental Rights
of citizens. Plain reading of rules does
not suggest an unbridled right and dis-
cretion by airlines to impose a life ban.
Air India might be aggrieved by the ass-
ault on its staff member, but its reaction
in imposing a life ban is illegal and a
violation of the Fundamental Rights of
the delinquent.
The writer is former acting chief justice
of Karnataka and Gauhati High Courts
Life Ban
Violates Rights
Abanontravelforlifeonparliamentarian
RavindraGaikwadforassaultinganairline
employeeisexcessiveandarbitrary
By Justice K Sreedhar Rao
T

India Legal 10 April 2017

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India Legal 10 April 2017