Can India Prevent Another 26/11? Ten years after the Mumbai attacks, a security expert finds the anti-terror apparatus hobbled by petty politics

1. NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
December10, 2018
Can India Prevent
Another 26/11?TenyearsaftertheMumbaiattacks,asecurityexpertfindstheanti-terrorapparatus hobbledbypettypolitics
Gujarat Lawyers: Solidarity
against judge’s transfer
Jayalalithaa: Legacy
of defamation

3. VEN as this is being written, countless
thousands of farmers who have con-
verged on Delhi from all across the coun-
try are marching to Parliament. They are
demanding a joint session of Parliament
to acknowledge the ballooning agrarian catastro-
phe, the implementation of the MS Swaminathan
Commission report, increased minimum support
prices and the passing of the Farmers’ Freedom
from Indebtedness Bill, 2018, and Farmers’ Right
to Guaranteed Remunerative Minimum Support
Prices for Agricultural Commodities Bill, 2018.
These bills were tabled in the Lok Sabha in
August by Hatkanangale MP Raju Shetti, the
leader of the Swabhimani Paksha, an independ-
ent farmers’ political party in Maharashtra. The
umbrella organisation for the farmers rally is the
All India Kisan Sangharsh Coordination
Committee, a union of roughly 200 farmer
groups.
A similar, unprecedented farmers’ march took
place earlier this year in Maharashtra when they
trekked to Mumbai to demonstrate their growing
economic misery. Couldn’t the government sense
that a massive crisis was at hand and address it
head-on instead of talking about bullet trains and
sea planes and “collusion with Pakistan”? Shortly
afterwards, in June 2018, the BJP received a
political drubbing in the bypolls across India.
A day after the results poured in, The Indian
Express carried two headlines on its front page:
“Opposition Parties Take 11 of 14 Assembly and
Lok Sabha Seats”. Side by side, it ran a feel-good
headline for the ruling party: “Good Rabi Crop,
Uptick in Factory Output Lift GDP up to 7.7
Per Cent”.
It made no sense whatsoever. How could the
economy be growing at about the fastest rate in
the world while the government receives a simul-
taneous thrashing at the hands of voters in what
could be a prelude to the 2019 general elections?
In Kairana, UP, which had become the riot-torn
crucible for vote-catching Hindu-Muslim politics
following bloody communal clashes and a reli-
gion-based exodus of population that swept the
BJP and its majoritarian sabre-rattlers into
power, “Jats and Muslims stepped over riot fault-
lines to vote together”, the Express said.
Actually, this is an example of why statistics
should be damned, and political parties should be
careful of using “surging” GDP and related feel-
good econometrics as vote-catching electoral
propaganda. It just doesn’t work. And history
seems to be repeating itself. Even as assembly
elections are nearing completion in five crucial
states and farmers are converging on Delhi, the
ruling party is playing roulette with GDP figures,
re-naming cities which have Muslim-sounding
names, erecting statues, playing dirty politics
with the CBI and trying to revive passions over
building a Ram temple in Ayodhya.
When a voter is unemployed, his pockets
empty, jobs shrinking, diesel and petrol prices
skyrocketing, mandis in distress, prices soaring,
GST raising the cost of anything you touch, mar-
kets shrinking and uncountable jobs sacrificed at
the altar of economic adventurism like demoneti-
sation which failed to distinguish between a
“black economy” and a cash-based economy, he’s
going to punch you right in the nose when you
tell him you stand for the farmer and the working
man.
After BJP’s debacles in the June bypolls, I
wrote that glib national TV commentators and
their talk show guests had suddenly awoken to
what they called “farmers’ issues” as being impor-
tant to the elections. The wisdom of morons!
Actually, like the economy, it IS the farmers,
Stupid! Their “distress” is the country’s distress—
yours and mine. These folks are not just another
wrapped item in your shopping basket of goodies.
They ARE the issue, and they are the force that
combined under common banners cutting across
caste and religious divides to march on Delhi.
They are not “playing victim” as some would
have us believe. According to Sujan Hajra, chief
economist at Anand Rathi, a financial analysis
firm, India has one of the world’s highest food
IT IS THE FARMER, STUPID!
Inderjit Badhwar
Letter from the Editor
E
Thefarmers’
“distress”isthe
country’sdistress—
yoursandmine.
Thesefolksare
notjustanother
wrappeditemin
yourshopping
basketofgoodies.
TheyAREtheissue,
andtheyarethe
forcethatcombined
cuttingacrosscaste
andreligiousdivides
tomarchonDelhi.
| INDIA LEGAL | December 10, 2018 3

4. spoilage rates; one of the world’s lowest per capi-
ta productivities and farmer incomes; poor rural
roads affecting timely supply of inputs and trans-
fer of outputs; inadequate irrigation systems;
poor seed quality; inefficient farming practices;
harvest spoilage causing over 30 percent of
wastage and lack of organised retail and compet-
ing buyers.
Their grievances cut across identity lines—no
returns on investment, loans they couldn’t repay,
inadequate support prices, unrequited money
from the sales of their cane, suicides and their
kids dying in hospitals because of lack
of oxygen.
Farmers are part of India’s large unorganised
sector. (There is abysmally low productivity in the
farm quarter—50 percent workforce and just 16
percent GDP.) As Professor Arun Kumar, one of
India’s best known international economists,
notes, this (total unorganised sector) is 93 per-
cent of total employment and 45 percent of total
output. Data for this sector is not available in the
routine because it is dispersed across the length
and breadth of the country in tens of millions of
small and cottage units which do not report their
data to any agency. The largest component of the
unorganised sector is agriculture, constituting 45
percent of the workforce and 14 percent of the
total output of the economy. Data for agriculture
is collected for each of the growing seasons and
becomes available with a short time lag, but it is
not collected for each quarter.
The non-agriculture part of the unorganised
sector constitutes 48 percent of the workforce
and 31 percent of the total output. It is the data
for this part that is not available for some years,
Professor Kumar explains. One of the top de-
mands of the farmers who marched to Parliament
last week is implementation of the Swaminathan
report. As one of the organisers told Scroll in a
recent interview: “If they {the BJP} lose elections
in all five states, then they will surely implement
it,” (referring to the ongoing assembly polls in
Madhya Pradesh, Rajasthan, Chhattisgarh,
Telangana and Mizoram).
E
very Indian needs periodically to be
reminded of just who Swaminathan is.
After India became an independent nation
in 1947, the highest import bill for the country
was food grains. Late into the 1960s, India used
to spend as much as `700 crore (a massive sum
given exchange rates of those years and virtually
no foreign exchange surpluses) only on import of
food grains, this being the single largest outgo on
foreign exchange.
Enter Swaminathan, or “MS”, as his friends
called him. This genius—and agricultural scien-
tist—wrought a virtual miracle called the “Green
Revolution” by introducing high-yielding varieties
of seeds which doubled and tripled and quadru-
pled production. “Basket case” India was soon to
be transformed into a surplus country.
From 1972 to 1979, he was director-general of
the Indian Council of Agricultural Research. He
was principal secretary, Ministry of Agriculture,
from 1979 to 1980. He served as director-general
of the International Rice Research Institute
(1982-88) and became president of the Inter-
national Union for the Conservation of Nature
and Natural Resources in 1988.
In 1999, Time magazine placed him in the
“Time 20” list of most influential Asian people of
the 20th century. The reason for the revival of his
name today on the roads of rural India and in
farmers’ marches in Mumbai and Delhi is that
despite the Green Revolution in India, he had
foreseen an agrarian crisis—“farmers’ distress” as
it is popularly called in today’s headlines—many,
many moons ago.
He chaired the National Commission on Far-
mers, and submitted five reports between Dec-
ember 2004 and October 2006. Following from
the first four, the final report focussed on causes
of farmer distresses and the rise in their suicides,
and recommended addressing them through a
holistic national policy for farmers. The findings
and recommendations encompass issues of access
4 December 10, 2018
Letter from the Editor
EveryIndianneeds
periodicallytobe
remindedofjustwho
MSSwaminathan
(above)is.This
geniuswroughta
virtualmiracle
calledthe“Green
Revolution”andhe
hadforeseenan
agrariancrisis—
“farmers’distress”
asitispopularly
calledintoday’s
headlines—many,
manymoonsago.
mssrf.org

5. to resources and social security entitlements. This
was over 12 years ago. And most of what he pre-
dicted came true while his recommendations
gathered dust! Today, leaders of agitating farmers’
organisations across the country have re-discov-
ered these reports and are demanding execution
of their recommendations.
How many people, including bureaucrats in
the finance and agriculture ministries have actu-
ally read Swaminathan’s report or are even aware
of the contents? For their edification, I reproduce
below excerpts of a summary of the report which
stressed constantly on modernising farming
methods and social protection for landless farm-
ers through greater governmental involvement.
Its focus was on faster and more inclusive growth.
If only someone had been listening!
The key issues were: A medium-term strategy
for food and nutrition security in the country in
order to move towards the goal of universal food
security over time; enhancing productivity, prof-
itability and sustainability of the major farming
systems of the country; policy reforms to substan-
tially increase flow of rural credit to all farmers;
special programmes for dryland farming for
farmers in the arid and semi-arid regions, as well
as for farmers in hilly and coastal areas; enhanc-
ing the quality and cost competitiveness of farm
commodities so as to make them globally compet-
itive; protecting farmers from imports when
international prices fall sharply and empowering
elected local bodies to effectively conserve and
improve the ecological foundations for sustain-
able agriculture.
M
ore than a dozen years ago, Swami-
nathan actually used the term “farmers’
distress”. He wrote: “Agrarian distress
has led farmers to commit suicide in recent years.
The major causes of the agrarian crisis are: unfin-
ished agenda in land reform, quantity and
quality of water, technology fatigue, access, ade-
quacy and timeliness of institutional credit, and
opportunities for assured and remunerative mar-
keting. Adverse meteorological factors add to
these problems.
“Farmers need to have assured access and
control over basic resources, which include land,
water, bioresources, credit and insurance,
technology and knowledge management, and
markets. The NCF recommends that ‘Agriculture’
be inserted in the Concurrent List of the
Constitution.”
What has now erupted as the most volatile
social-economic issue facing the nation has been
in the making for decades. Despite more than
half of India’s 1.3 billion population making their
living from farming, their contribution to the
overall economy has been diminishing, notwith-
standing increases in output. This actually trans-
lates into a full-blown crisis and cannot be dis-
missed as what TV pundits and glib politicians
are calling farmers’ “issues”. A national crisis is
not just an “issue” but a cataclysmic phenomenon
with drastic political and social consequences in
which the very foundation of the economy can
be devastated.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | December 10, 2018 5
A STIR FOR
RIGHTS
(Top and above)
Farmers from
different states at
the Kisan Mukti
March in Delhi. Led
by the All India Kisan
Sangharsh
Coordination
Committee, they
were demanding
loan waivers and
better prices for
their produce
UNI
UNI

6. ContentsVOLUME XII ISSUE4
DECEMBER10,2018
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6 December 10 , 2018
Can India Handle Another 26/11?
Ten years after the Mumbai attacks, India’s security network is far from prepared to
counter another strike, hobbled as it is by petty politics and lack of co-ordination
LEAD
14
Formula for Liberty
In a forward-looking judgment, the Delhi High Court has held that a request for
anticipatory bail is not a relevant factor while considering regular bail
COURTS
18
For Whom the
Bar Strikes
In a rare show of solidarity, advocates in Gujarat
went on strike over the transfer of Justice Akil
Kureshi to the Bombay High Court, and even met
Chief Justice Ranjan Gogoi on the issue
20

7. Auditing the
Auditors REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
| INDIA LEGAL | December 10, 2018 7
Cover Design: ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
Delhi Durbar ...................12
International Briefs..........28
Media Watch ..................33
Satire ..............................50
The crash of some leading British firms
has forced the Competition and Markets
Authority to launch an examination of the
auditing sector’s Big Four companies
48
Caught Napping
The trail of destruction left
behind by Cyclone Gaja has
shown up Tamil Nadu’s disaster
management department as
inefficient and the centre as
callous to the state’s needs
36
How to Green the Valley 40
An amicus curiae was fixed by the top court to examine a National Green Tribunal
order that requires the Karnataka government to plant 10 trees for every one felled
Don’t Muzzle the Messenger 42
The Madras High Court has quashed a case file by Jayalalithaa against India
Today’s Tamil edition, saying if the Press is gagged, democracy will be imperilled
Freeway for a Few 46
Lawyers have petitioned the Karnataka High Court, demanding that they and
farmers be exempted from paying at national highway toll plazas
Reality and Perception
Lawyers in Delhi, upset at their fraternity being shown in a bad light
in Aaj Tak’s television promo, have sent a legal notice to the channel
22
Professional Etiquette
The practice of law has a moral compass which is key to maintain-
ing independence and accountability, and instilling trust in clients
24
The Union ministry of women and child development plans to use
the Nirbhaya Fund to set up over 1,000 fast-track courts
26
ENVIRONMENT
STATES
GLOBALTRENDS
A mandatory online form for students appearing for the Gujarat Boards asks only
Muslims among them to identify their religion, sparking a controversy
Faith before Merit 38
No More Justice Delayed
FOCUS
For the first time, the
Supreme Court has directed
that government agencies
and officials who look the
other way while polluters
destroy the environment will
be prosecuted with fines or
prison terms
30Account for the Poisoning
SPOTLIGHT
LEGALEYE
Final Gift Honoured
The government proposes social support up to `5 lakh to organ
donors’ kin and `1 lakh to hospitals as a means to boost the practice
34
MYSPACE

8. 8 December 10, 2018
“
RINGSIDE
“...he should exercise
due restraint becom-
ing of the office of
the prime minis-
ter....he is the prime
minister for all citi-
zens of our country
and his conduct must
be worthy and con-
sistent with that
obligation....”
—Former PM Manmo-
han Singh on Modi’s
speeches in states not
ruled by the BJP
“My father was an
atheist and religion
played no part in his
life. He was cremated
according to his
wishes and so was
my mother a few
months later.”
—Nirmala Kurien,
daughter of Dr Ver-
ghese Kurien, on alle-
gations that he used
Amul's money to fund
religious conversions
“We have always
maintained the
Congress has this
proclivity for soft
Hindutva and com-
promising with com-
munalism. This has
been the history of
the Congress and we
have always fought
against that....”
—CPI(M) general
secretary Sitaram
Yechury at a press
meet in Delhi
“I told her, I can
make it a crown of
roses. And I think I
have made it a crown
of flowers, if not
roses.”
—Supreme Court
judge Justice Kurian
Joseph while refer-
ring to his wife’s
objection to his
decision to become a
judge in his farewell
speech on November
29, 2018
“I would rather sug-
gest there should be
no mandir or no
masjid constructed…
An institute or some
other project should
be thought of to
build… which will
not hurt anyone’s
feelings....”
—Minister of State for
Social Justice and
Empowerment
Ramdas Athawale on
the Ram Mandir
“I was in the Army....
Every soldier knows
what another soldier
is thinking. Who has
taught to kill soldiers
by taking them by
surprise? Who
taught to attack peo-
ple holding a reli-
gious congregation in
Rajasansi Amritsar?
We, Punjabis, know
how to give a befit-
ting reply to such
forces….”
—Punjab Chief
Minister Amarinder
Singh at the
Kartarpur Corridor
function in Punjab
“I don’t know when I
will be transferred. I
will not lose my job,
but the threat of
transfer is there....”
—Governor Satya Pal
Malik on his decision
to dissolve the J&K
assembly
“It is in our best interest to heed the advice of the
Constitution. If we do not, our hubris will result
in sharp descent into chaos. The Constitution has
become an integral part of the lives of the Indian
people. This is not an exaggeration, one need only
to look at the astounding variety of issues that the
courts hear daily.”
—CJI Ranjan Gogoi at a function to celebrate
Constitution Day (November 26) in New Delhi

9. While commuting the
death penalty imposed
on a man convicted of killing
three people and attempting
to kill a fourth, the Supreme
Court said the question of
whether the accused was
capable of reformation was
not considered at the time of
trial. The convict had been
awarded the death sentence
by a trial court in 2013,
which was confirmed by the
Chhattisgarh High Court in
2014. An apex court bench
of Justices Kurian Joseph,
Deepak Gupta and Hemant
Gupta observed that a posi-
tive change in a death row
convict “should also weigh
with the court while taking a
decision as to whether the
alternative option is unques-
tionably foreclosed”. The
bench also discussed the
validity of the death penalty
laid out in the Indian Penal
Code and upheld it by a 2:1
majority. Justice Joseph
gave the dissenting opinion,
inter alia, on the grounds
that the death penalty has
failed to act as a deterrent.
Courts
| INDIA LEGAL | December 10, 2018 9
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
Justice Kurian
Joseph retires
The petition by CBI chief Alok Verma
seeking quashing of the centre’s deci-
sion to divest him of his charge has been
listed for further arguments on December 5
in the Supreme Court. Verma retires on
January 18. He has been on forced leave
since October 24 when the centre, in a
midnight decision, divested him of his cha-
rge. On November 29, a bench headed by
Chief Justice Ranjan Gogoi resumed hearings
on Verma’s plea. The bench heard submis-
sions by senior advocates Fali Nariman,
Rajeev Dhavan, Kapil Sibal, Indira Jaising and
Dushyant Dave—all of whom said that the
centre had violated the law by sending Verma
on leave without referring the complaints
against him to a three-member panel of the
prime minister, chief justice of India and
leader of the opposition which is mandated
to appoint, transfer, or suspend a CBI direc-
tor. Attorney General KK Venugopal, appear-
ing for the centre, rebutted the arguments,
saying that while the panel has a recom-
mendatory role, the government is the final
appointing authority, and so, Verma’s ouster
was within the prerogative of the Executive.
The Supreme Court pulled up the
Karnataka government for the
tardy progress of the probe into
the murder of scholar MM
Kalburgi, more than three years
ago in Dharwad, Karnataka. The
apex court was hearing a plea by
Kalburgi’s wife, Uma Devi, who
had sought an SIT probe into the
case. The Court said the Karnataka
government was “doing nothing”
and directed it to submit a report
within two weeks about the possi-
ble time frame by which the inves-
tigation could be completed.
Death penalty debate revived in apex court
The Supreme Court slammed the Bihar govern-
ment for going “soft” on charges of abuse of
children at 17 shelter homes and transferred the
probe into all 17 cases, flagged in the Tata Institute
of Social Sciences report, to the CBI. Until now, the
CBI has been probing only the Muzaffarpur shelter
home case. The Bihar government’s plea against
this move did not find favour with the bench which
said that: “The attitude of the state is extremely
unfortunate, tragic and shameless, to say the
least…the police is not doing its job.” The bench
also told the state government to promptly provide
any assistance requested by the CBI, and asked the
CBI to file a status report by January 31, 2019.
On his last working day in the
Supreme Court (November
29), Justice Kurian Joseph was
given a warm send-off by the
members of the bar and the bench.
At the function, Chief Justice
Ranjan Gogoi made an emotional
speech and wished his brother
judge well. Justice Joseph
received praise from several oth-
ers, too, for “handling cases with
sensitivity and a human touch”
and for being “the most popular
judge with a smile”. Justice Jos-
eph was elevated to the Supreme
Court in March 2013, after serving
as a judge of the
Kerala High Court
and later as chief
justice of the
Himachal Pradesh
High Court.
CBI to take over Bihar
shelter home cases
SC hears CBI vs CBI
matter; further
arguments on Dec 5
Expedite Kalburgi
probe, says SC

10. ISTHAT
A person wants an FIR lodged at the
local police station, but the police-
men refuse to oblige. What legal
action can he take so that there is
prompt response?
Every person has the right to file a
complaint at a police station and the
concerned police official/s must reg-
ister an FIR if the offence is cognis-
able. However, on being refused, he
can send a written complaint to the
senior police officer, such as the
superintendent of police or even the
police commissioner. If, after going
through the complaint, the senior
officer finds that the offence is
indeed cognisable, he may investi-
gate the issue himself or direct his
subordinate to file the FIR and start
the investigation.
However, if nothing is done even
at this stage, a complaint can be filed
with the judicial magistrate/metro-
politan magistrate, who can then
order that an FIR be lodged and
investigation started.
What is the legal procedure to be followed
in case a cheque is dishonoured and
returned by the bank due to insufficient
funds in the person’s account?
Dishonour of cheques is quite common and
this happens due to several reasons: wrong
name, wrong account number, overwriting,
insufficient funds, the signature registered
with the bank not matching with the one on
the cheque, etc. However, if a cheque is
dishonoured due to insufficient funds in the
bank account, an affected person can file a
suit for recovery, which is a summary pro-
ceeding under Order XXXVII of the Code of
Civil Procedure, 1908.
Another method is to file a criminal com-
plaint under Section 138 of the Negotiable
Instruments Act, 1881. But before filing the
complaint, a statutory notice must be given
to the other party.
A Cheque
Bouncing Case
—Compiled by Deepankar Malviya
Lodging an FIR
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
If a frivolous FIR has been filed to spite
someone, can the affected person seek
legal remedy?
If a frivolous FIR has been filed, the affect-
ed person can take the following steps:
An application can be filed in the high
court under Section 482, CrPC, for qua-
shing the frivolous FIR. The Section em-
powers the high court to prevent the ab-
use of any court process and secure the
ends of justice. There are several grounds
on which a frivolous FIR can be qua-
shed—the act/omission for which the FIR
was filed does not constitute an offence,
the act/omission never took place or the
FIR contains baseless allegations.
Another method is by filing a writ peti-
tion under Article 226 of the Constitution
under which the high court can issue the
writs of Mandamus or prohibition.
The third option is to file a counter-FIR
against the same person.
Action Against
Frivolous FIRs
?
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
A person books a commodity on an e-commerce
site. He pays the money but does not receive the
product or gets a damaged product. Can he take
legal action?
The Consumer Protection Act, 1986, extends pro-
tection to the consumer on the sale and purchase
of a commodity or service on an e-commerce
platform. A consumer case can be filed provided
the money has already been paid for goods or
services booked online.
Therefore, in this case, the affected person can
easily file a complaint in the appropriate consumer
forum under the Consumer Protection Act, 1986.
10 December 10, 2018
Online Shopping
Gone Wrong

12. Mohammad Azharuddin, the
former Indian cricket captain
who started his political
innings with the Congress and
became an MP from Uttar
Pradesh’s Moradabad seat in
2009, finds himself sidelined
by the party. Azharuddin’s last
truly political outing was in the 2014 Lok Sabha polls when
the Congress fielded him from Rajasthan’s Tonk seat. The
switch from Moradabad was because local leaders were
opposed to his renomination. Azhar was among hundreds
of other Congress candidates in 2014 who got swept away
by the Modi wave. Ever since, he has been trying to stay
politically relevant. Sources say the party had asked him to
make space for himself in his home state of Telangana
where the Congress was wiped out in the Lok Sabha and
assembly polls due to the popularity of Telangana Rashtra
Samiti chief K Chandrashekhar Rao—the architect of the
newly carved state. The Congress wanted to pit Azhar as
its Muslim face in the state against AIMIM chief and
Hyderabad MP Asaduddin Owaisi. Azhar wanted to be
fielded in the assembly polls from a safe seat in
Secunderabad but his hopes were dashed by the
Congress leadership. The former skipper was negotiating
with a close kin of Rao to facilitate his entry into the TRS
when a desperate Congress high command decided to
appoint him as working president of the state unit.
12 December 10, 2018
An inside track of
happenings in Lutyens’ Delhi
If the famous judges’ press conference in
January this year was unprecedented,
then one of its key participants, Chief
Justice Ranjan Gogoi, pulled off yet
another unique event last week. On the
eve of Constitution Day, the chief justice of
India hosted a dinner at the judges’
lounge of the Supreme Court which had in
attendance Vice-President M Venkaiah
Naidu and Prime Minister Narendra Modi.
Other judges of the top court and chief
justices of Bangladesh, Myanmar,
Thailand, Nepal and Bhutan, who were in
New Delhi to attend the BIMSTEC confer-
ence, were also present. This was
perhaps the first time ever that an incum-
bent prime minister visited the Supreme
Court premises to dine with the chief
justice of India.
The invite to Modi has expectedly
raised eyebrows, particularly among those
who had lauded the judges at the January
presser for resisting political interference
in the higher judiciary. Senior advocate
Indira Jaising even posted images from
the dinner on Twitter with pithy comments
–”Deeply Disappointed” and “Pretty pic-
ture, agree?” With the Supreme Court,
especially its bench headed by Chief
Justice Gogoi, now a target of
daily derision and ridicule by
senior BJP leaders for not
expediting the Ayodhya title
suit proceedings, speculation
about what the head of the
Judiciary discussed with the
head of the Executive has
already gained momentum.
The dinner also came at a
time when Chief Justice
Gogoi’s bench is hearing sev-
eral other sensitive cases,
including CBI Director Alok
Verma’s petition, which have
put the Modi government in an embar-
rassing spot. The chief justice also had a
one-on-one interaction with the prime min-
ister following the dinner. Curiously,
Attorney General KK Venugopal, the gov-
ernment’s top law officer, left the Supreme
Court premises much before Modi’s
delayed arrival at the venue.
Senior Congress leader Kapil
Sibal has done it again. Months
after his appearance and contro-
versial arguments in the politi-
cally polarising Babri Masjid-
Ram Janmabhoomi title suit left
the Congress leadership red-
faced, the veteran lawyer has
again forced his party into an
embarrassing spot. While
Congress President Rahul
Gandhi is leaving no opportunity
to brand Anil Ambani as the
biggest beneficiary of the Modi
government’s alleged crony cap-
italism, Sibal has been hired by
Reliance Communication—
owned by Anil Ambani—to
appear in a legal dispute
against Reliance Jio—
run by Mukesh
Ambani—in the
Supreme Court.
Sibal’s appear-
ance for Reliance
Communication
in the top court
on November
27 led journalists to question
Congress spokespersons on
how the party viewed one of its
most prominent legal hawks rep-
resenting the one industrialist
Rahul Gandhi loves to hate. Offi-
cially, the party has decided to
stick to the line that the media
must view Sibal’s professional
commitments as the country’s
top-billing lawyer, separately
from his political work as a Con-
gress member. Off the record,
though, many party leaders have
been expressing their discomfi-
ture on the issue. Congress
leaders are also joking about the
possibility of Sibal appearing as
Anil Ambani’s lawyer in the
scores of defamation cases
the controversial, debt-
ridden tycoon has
slapped against various
media houses—includ-
ing the Congress-
affiliated National
Herald—for
their report-
age on the
Rafale deal.
DOUBLE ROLE
DIN OVER DINNER
TAKING GUARD

13. | INDIA LEGAL | December 10, 2018 13
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Delhi
Durbar
There is an official list of VIPs which
also includes spiritual figures and
those who occupy certain official posi-
tions in government and public sector.
The hierarchy and who qualifies for
special treatment can be seen at the
Reserved Lounges maintained by the
Airports Authority of India at airports
across the country. Only two religious
figures—Shankaracharya of Dwarka
and Mata Amritanandamayi—make it
to the list, which means others like Sri
Sri and Sadhguru, despite their high
profile, political clout and celebrity sta-
tus, are missing from the access list.
Other relatively unknown VIPs who
make it because of occupying a cer-
tain post include chairman, All India
Council for Technical Education, and
chairman, Appellate Tribunal for For-
feited Property. These worthies rank
above the Solicitor General of India!
HOLY HIERARCHY
In the run-up to crucial state elections,
it was inevitable that fake news and
distorted facts would show an incre-
ase but even by that reckoning, Amit
Malviya, head of the BJP’s IT cell, has
taken cut-and-paste propaganda to a
new low. On November 27, Malviya
tweeted a video of Manmohan Singh
in which the former prime minister is
heard saying “the governments of
Madhya Pradesh and Chhattisgarh
were very good”. The clip Malviya sent
appeared to show Singh praising the
BJP-ruled state governments and he
then added a caption which read:
“Prime Minister Dr Manmohan Singh
contradicted Rahul Gandhi, says gov-
ernments of Madhya Pradesh and
Chhattisgarh were ‘very good’…
Waters down everything Congress
president has been saying over the
last few days!” Once the clip went
viral, and the original speech was
uploaded, it turned out to be a crass
and clumsy example of political edit-
ing. In the actual speech, Singh was
not praising BJP governments in
Madhya Pradesh and Chhattisgarh.
He was, in fact, advising Prime Mini-
ster Modi to not discriminate against
non-BJP ruled states. His original
statement said: “My relationships with
the government of Madhya Pradesh,
the government of Chhattisgarh were
very good.” He was talking about his
tenure as prime minister when these
states were under BJP rule.
FAILING THE TEST
An audit, commissioned by the Central
Information Commission, has revealed
some startling facts about the transparen-
cy of information on the websites of min-
istries, official agencies, universities,
banks and public sector undertakings.
The audit report, released last week,
showed that 35 percent of all the govern-
ment bodies audited got an “E” grade,
the lowest ranking possible. The informa-
tion meant to be available on the websites
under Section 4 of the RTI Act, was as
sparse as possible and pointed to blatant
non-compliance in disclosing basic infor-
mation about their functioning and admin-
istration, including transfers, allocation
and utilisation of funds, trips abroad by
officials and even lacked information on
meetings held and decisions taken.
Ironically, the worst offenders, according
to the report, are the Central Vigilance
Commission and the Election
Commission. The “E” grade ranking also
went to a number of ministries as well as
Punjab National Bank, in the eye of the
storm for loans to prominent absconders.
In fact, the audit would have produced
even more shocking results had everyone
responded to the proforma sent out by
the two-man audit team. Of the 2,092
public authorities who were sent the ques-
tionnaire, only 830 responded. What the
audit clearly shows is that many of India’s
public institutions have a lot to hide, RTI
or no RTI.
FAKING THE NEWS

14. Lead/ Security
14 December 10, 2018
RE we better prepared for
another attack like 26/11?
Unfortunately, the answer
is not simple as it is inter-
woven with the interna-
tional environment, and
internal political and structural dynamics.
On the 10th anniversary of the
Mumbai attacks of November 26, 2008,
in which 166 people lost their lives, rela-
tives of the victims came together at the
Gateway of India, facing the iconic Taj
Mahal Hotel which bore the brunt of
them. The media went on a high, bash-
ing Pakistan and its “deep state” while
recounting details of the attack.
INTERNATIONAL DIMENSION
Internationally, Israel and the US came
out with strong statements of solidarity
with the victims of the attack and India.
US Secretary of State Mike Pompeo in
his message said that the fact that the
perpetrators of the attack had not been
prosecuted so far was “an affront to the
families of the victims”. He called upon
all countries, “particularly Pakistan, to
uphold their UN Security Council obli-
gations to impose sanctions against the
terrorists responsible for this atrocity,
including LeT and its affiliates”.
International solidarity, particularly
from the US and Israel, is expected as
Can India Handle
Even10yearson,thecountryisnotfullypreparedforanother
terroristattackandisboggeddownbypettypoliticsandlack
ofco-ordinationbetweenvariousagencies atthegrassroots
By Col R Hariharan
A
NOT ON THE
SAME PAGE
(Left) While
Maharashtra
Governor Vidyasagar
Rao (in the middle)
and CM Devendra
Fadnavis (in blue
jacket) paid tributes
to martyrs on 26/11,
Pakistani minister
Fayyaz ulHasan
(below) attended a
JuD function across
the border
UNI

15. | INDIA LEGAL | December 10, 2018 15
their citizens were victims of the attack;
moreover, they had been in the forefront
of the international war on jihadi ter-
rorism. Despite this, in the world of
realpolitik, national interest is invariably
the sole consideration for nations aiding
other countries in fighting their wars,
particularly terrorism. So India has to
fight its own war on terrorism.
There is unlikely to be any change in
Pakistan’s attitude in prosecuting Hafiz
Saeed and six others involved in the
Mumbai attack. This was evident from
the presence of Punjab minister Fayyaz
ul-Hasan at a function organised by the
Jamat-ut-Dawa, founded by Saeed, on
November 26, 2018. The backdrop on
the stage was a huge blow-up of Elias
Davidsson, author of the book, The
Betrayal of India: Revisiting the 26/11
Evidence. Hasan’s presence at the func-
tion lends credibility to Pakistan’s right-
wing narrative of how India orchestrat-
ed the whole Mumbai “drama” in
November 2008.
This was not unexpected. The
Pakistan Army calls the shots regarding
defence and India policies and uses
trans-border terrorists as a strategy to
bleed its neighbour.
In fact, there are clear indications of
Pakistan trying to revive Khalistani ter-
rorism in Punjab, leveraging this move-
ment’s connections in Canada, Italy and
the UK. On November 4, 2017, the
Punjab police arrested five men said to
be part of a Khalistani module that
killed RSS members in Ludhiana, Dera
Sacha Sauda followers and a Christian
pastor in October-November, 2017. The
suspects, on interrogation, confirmed
that the Khalistan Liberation Force car-
ried out the killings at the bidding of
Pakistan spy agency, the Inter Services
Intelligence. Since then, Punjab police
and intelligence agencies have scaled up
their vigilance on Khalistani activities.
According to the Punjab police chief,
tech-savvy young men are influenced by
Khalistan separatist propaganda on
social media. The grenade attack by two
Khalistani terrorists on a Nirankari sat-
sang in a village near Amritsar on
November 18 is a strong reminder that
Punjab could emerge as an option for
Pakistan-supported terrorist operations
in the near future. So the question really
is not our readiness to face yet another
Mumbai-type attack, but to face a mas-
sive attack launched by educated, tech-
savvy and indoctrinated terrorists and
aided by inimical powers. And the way
to face them is to overcome our core
weaknesses in the war against terror
and structurally improve our systems.
IMPROVE SYSTEMS
The abysmal response of the counter-
terrorism apparatus to the 26/11 attacks
showed that the national leadership had
failed to establish a fool-proof system to
handle terrorist threat. In fact, these
attacks showed the same systemic weak-
nesses seen in the earlier Mumbai blasts
case of 1993 and the parliament attack
in 2001.
The 26/11 episode revealed that there
were glaring systemic weaknesses, both
at the state and central levels. There was
lack of co-ordination in intelligence gath-
ering and dissemination which could
forewarn and help agencies respond
before a terrorist strike. After an attack
takes place, the security response is often
uncoordinated, tardy and delayed.
CO-ORDINATION OF INTEL
After the 26/11 attacks, Union Home
Minister P Chidambaram mooted a radi-
cal overhaul of India’s security and intel-
ligence apparatus. The National Intel-
ligence Grid (NATGRID), a network
Another 26/11?DASTARDLY ATTACK
Terrorist Ajmal Kasab during the 26/11 attack
in Mumbai in 2008
ThereareclearindicationsofPakistan
tryingtoreviveKhalistaniterrorismin
Punjab,leveragingthismovement’s
connectionsinCanada,ItalyandtheUK.
ThosearrestedhaveconfirmedISI’shand.

16. 16 December 10, 2018
to collate data from the databases of var-
ious agencies and ministries, came up in
2016. NATGRID’s data is now available
to 11 central agencies, including the
Research and Analysis Wing and the
Intelligence Bureau. Two phases of NAT-
GRID have been implemented and two
more, related to banking transactions
and internet usage, are in the offing. The
National Investigation Agency was creat-
ed on December 31, 2008, to combat ter-
ror. Its director-general, YC Modi, has
claimed it is a success story with a con-
viction rate of 95 percent in 165 of the
185 cases registered since its inception.
However, the National Counter
Terrorism Centre (NCTC), modelled on
the lines of the National Counter-terror-
ism Center of the US and meant to be
receiving actionable intelligence inputs,
has run into rough weather due to polit-
ical wrangling. Many chief ministers see
it as an instrument of the centre to
poach on the preserve of states where
public order and policing are concerned.
This stalling is a major failure in intelli-
gence sharing on a real time basis
between states and the centre.
State policing continues to be the
weakest link in national security. Many
states have not implemented the recom-
mendations of successive police com-
missions to improve the quality of polic-
ing. So, after 2008, though the centre
allocated more funds to improve and
strengthen state police forces, their
capability varies widely from state to
state.
MARITIME SECURITY
The fact that 10 LeT terrorists could
travel by sea unchecked for four days
and infiltrate Mumbai to carry out the
26/11 strikes exposed the vulnerability
of our maritime security. To rectify this,
the Coastal Security System was refur-
bished with more fund allocations for
coastal infrastructure, including police
stations and radar installations.
According to the Indian Navy web-
site, at the apex level, the National
Committee for Strengthening Maritime
and Coastal Security (NCSMCS) co-
ordinates all matters related to maritime
and coastal security. Joint Operations
Centres have been set up by the Navy in
Mumbai, Visakhapatnam, Kochi and
Port Blair, manned by the Navy, Coast
Guard and marine police. They act as
command and control hubs for coastal
security. As a result, inter-agency co-
ordination between nearly 15 national
and state agencies has improved. Also, a
chain of 74 automatic identification sys-
tem receivers, complemented by 46
coastal radar installations, cover the
entire coast.
After Prime Minister Narendra
Modi came to power, a proposal to cre-
ate a National Maritime Authority to
ensure cohesive policymaking and effec-
tive co-ordination for coastal security
figured in the president’s address to
Parliament in June 2014. However, this
Lead/ Security
TREAD CAUTIOUSLY
The scene outside the Nirankari centre in
Amritsar’s Rajasansi village where an attack
took place in November; (below) Pakistani PM
Imran Khan with Navjot Singh Sidhu at the
inauguration of the Kartarpur Sahib Corridor
twitter/@MalikDilawar

17. | INDIA LEGAL | December 10, 2018 17
FAR FROM FOOL-PROOF
In the absence of a National Maritime
Authority, coastal security continues to be
an ad hoc affair
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
has not materialised so far; so NCSMCS
continues to be an ad hoc solution.
Overall, our coastal security is better
than it was in 2008 but it is still a work
in progress. Its weakness is the contin-
ued neglect by states, reflected in the
indifferent performance of coastal police
personnel who lack marine capabilities.
LEGAL ASPECTS
The world over, governments have been
grappling with enacting laws to handle
terrorist threats. India is no exception.
Our judicial process, never known for
speedy disposal of cases, adds to the
agony of enforcement agencies. There is
lack of a viable counter-terrorism act.
There is confusion in jurisdiction
between multiple central and state secu-
rity agencies. Cross-border issues, with
political ramifications, also affect the
apprehension and prosecution of terror-
ists in sanctuaries abroad.
The Indian Penal Code and the Code
of Criminal Procedure, 1973, already
contain provisions related to terrorist
activity, including the offence of waging
war against the government, sedition to
bring hatred or contempt or inciting
disaffection towards the government.
These have been used in prosecuting
terrorists involved in almost all cases of
terrorist attacks, including the 1993
Mumbai blasts case and 26/11 terrorist
Ajmal Kasab’s trial.
After the assassination of Indira
Gandhi in 1984, the parliament enacted
in 1985 the terrorism-specific Terrorism
and Disruptive Activities (Prevention)
Act (TADA). It was used extensively to
combat insurgency in Punjab. The Act
defined “terrorist act” and “disruptive
activities”, put restrictions on the grant
of bail and gave enhanced power to
detain suspects and attach properties.
After widespread allegations of misuse,
TADA was allowed to lapse in 1995.
In 2001, after the terrorist attack on
Parliament, the Prevention of Terrorism
Act (POTA), 2002, was enacted. POTA
covers political dissent, allowed pro-
longed pre-trial detention and reversed
the presumption of innocence of an
accused. Misuse of some of its draconian
provisions led to widespread protest and
it was repealed in 2004. However, courts
allowed investigation and prosecution of
cases booked under TADA even after
repeal of the Act. As a result, a number
of cases are still pending and many
accused are languishing in jails without
trial.
At present, the Unlawful Activities
(Prevention) Act (UAPA), originally
enacted in 1967, is used as the primary
anti-terrorism law. It enables the State to
impose reasonable restrictions on the
rights to freedom of speech and expres-
sion, peaceful assembly without arms
and formation of associations or unions
that threaten national sovereignty and
integrity. However, it has been amended
by Parliament five times. It was under
the UAPA that five activists were recent-
ly arrested in the Bhima-Koregaon case
for alleged support to CPI (Maoist-
Leninist) activities (it is a proscribed
organisation).
Since Independence, India’s integrity
and unity have been threatened from
time to time by separatists, left-wing
extremists and terrorist organisations
supported by Pakistan. However, its
enactments to combat these disruptive
forces lack clarity. Law-enforcing agen-
cies, too, have to respect the constitution
and be accountable for their actions to
prevent misuse of Acts like the UAPA.
Unfortunately, with party polemics vitiat-
ing the political climate, we may continue
to meander in combating the forces
threatening our national sovereignty.
—The writer is a retired officer of the
Intelligence Corps and associated with
the Chennai Centre for China Studies
and the South Asia Analysis Group
Thereislackofaviablecounter-terrorism
act.Thereisconfusioninjurisdiction
amongmultipleagencies.Cross-border
issues,withpoliticalramifications,also
affecttheapprehensionofterrorists.
UNI

18. Courts/ Bail Application
18 December 10, 2018
HE Delhi High Court has
ruled that the acceptance or
rejection of anticipatory bail
to an accused under Section
438, CrPC, is not a relevant
factor while considering his regular bail
plea under Section 437, CrPC.
Section 437 provides for bail in cases
of non-bailable offences and allows the
court or a police officer the discretion to
grant bail for a non-bailable offence that
is not punishable with death or life im-
prisonment. However, persons below 16
years, women and sick persons may be
awarded bail even if the offence is pun-
ishable with death or life imprisonment.
Section 438, on the other hand, pro-
vides for anticipatory bail which can be
applied for in a high court or sessions
court when a person apprehends arrest
or has reason to believe that he may be
arrested on a charge of having commit-
ted a non-bailable offence.
The power of the court to grant or
refuse bail is discretionary and depends
on the nature and gravity of the circum-
stances in which the offence is comm-
itted; the position of the accused vis-a-
vis the victim and witnesses; the likeli-
hood of him fleeing from justice; the
likelihood of him repeating the offence
and tampering with evidence or influ-
encing witnesses, and so on.
In this case, the Bench clarified the
referred questions of law as follows:
While considering a regular bail appli-
cation under Section 437(1), the fact of
the rejection or acceptance of the antici-
patory bail application, is not germane.
There are cases when the Investigating
Officer (IO) may not arrest the accused,
using his discretion, even after rejection
of anticipatory bail by the high court.
When a chargesheet is filed in such
cases before the court/magistrate, it’s
not open to the court to examine the
correctness of the IO’s discretion. The
magistrate/court is only concerned with
the final report/chargesheet, as filed.
On the issue of duration of an antici-
patory bail application, the Court
explained the current position of law
through various precedents. In Gur-
baksh Singh Sibbia v State of Punjab
(1980), the Supreme Court held that the
anticipatory bail granted by the Court
should ordinarily continue till the trial
of the case. On the other hand, in KL
Verma v State (1998), it was held that
anticipatory bail should be for a limited
duration. In HDFC Bank Ltd v JJ
Mannan (2010), the Supreme Court
held that protection under Section 438,
CrPC, is only till the investigation is
completed and the chargesheet filed.
These conflicting positions were
noticed recently by the Supreme Court
in Sushila Aggarwal v State (NCT of
Delhi) & Anr (2018) and the issue was
referred to a larger bench. Since that
case is still pending, the High Court ref-
used to delve into this question of law.
On the question of whether the court
can release an accused on bail when he
has been chargesheeted without arrest
under Section 376, IPC (rape), or any
other offence punishable with life imp-
risonment or death, the Court answered
affirmatively but made it subject to cer-
tain grounds. In such cases, the accused
may be granted bail under Section 437
(1), CrPC, provided: (1) there are no rea-
sonable grounds for the court to believe
that the accused is guilty of an offence
punishable with death or life imprison-
ment; or (2) the accused is under the
age of 16 years or a woman or sick.
The existence of the above circums-
tances merely enables the court to con-
sider an application for grant of bail
under Section 437(1), CrPC. However,
the considerations which are relevant to
decide whether to grant bail or not
depend on the facts and circumstances
of each individual case.
Refusal of bail is a restriction of an
individual’s personal liberty, a right
granted under Article 21, which should
not be unduly curbed. Arresting an
accused before trial is a preventive
measure, not a punitive one. Courts
have time and again set precedents and
articulated their stand on balancing an
accused’s liberty with procedural
requirements to facilitate justice. The
current judgment is yet another
example of this.
Pitching for Liberty
TheDelhiHighCourthassaidthatarequestforanticipatory
bailisnotarelevantfactorwhileconsideringregularbail
By Shivani Bhasin
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
T
STRIKING A BALANCE
Justices IS Mehta (far left) and Vipin Sanghi
were part of the Delhi HC bench in this case

20. Courts/ Turmoil in Gujarat HC
20 December 10, 2018
ARELY has the transfer of
a High Court judge creat-
ed the sort of upsurge wit-
nessed when Justice Akil
Kureshi of the Gujarat
High Court was moved to
the Bombay High Court. The Bar struck
work and, in one voice, urged the apex
court to reconsider its decision. It
relented only after a meeting with Chief
Justice Ranjan Gogoi.
On October 29, the Supreme Court
Collegium had recommended the trans-
fer of Justice Kureshi, the second senior-
most judge of the Gujarat High Court,
to Bombay. It also recommended the
elevation of Gujarat High Court Chief
Justice R Subhash Reddy as a Supreme
Court judge. Ideally, after Justice
Reddy’s promotion, Justice Kureshi
should have been made acting chief jus-
tice. But, on November 1, the centre
issued a notification appointing Justice
A Dave to this post and asked Justice
Kureshi to take charge in Mumbai on or
before November 15.
On November 2, the government
issued a fresh notification, “in superses-
sion” of the earlier one, and appointed
Justice Kureshi to perform the duties of
the chief justice of the Gujarat
High Court till his transfer. So, in
effect, Justice Kureshi was acting
chief justice for a very short time.
This reportedly came about
after the CJI took up the matter
with the government. On
November 3, in an interaction
with the media in the Supreme
Court press lounge, Chief Justice
Gogoi admitted to the “mistake”
and said that it has been “cor-
rected”. “Mistakes do happen,” he said.
No sooner was it known that Justice
Kureshi was transferred to Mumbai
than speculation was rife in legal circles
that the move was by the government to
prevent him from taking over as the act-
ing chief justice of the Gujarat High
Court. The Gujarat High Court Advo-
cates Association (GHCAA) called a
meeting immediately after the news of
his transfer on November 1 and passed a
unanimous decision stating that it found
no reason to justify his transfer from
seniormost puisne judge of the Gujarat
High Court to number five in the Bom-
bay High Court “ostensibly in the inter-
est of better administration of justice”.
The resolution said that the “Bar be-
lieves that such a transfer is unjustified
and has no connection with better
administration of justice. On the con-
trary, it impinges on the independence
of the judiciary. It also resolved to dep-
recate and condemn the transfer”.
Not only did it then decide to strike
work indefinitely, but it decided to chal-
lenge the transfer through a writ peti-
tion. Yatin Oza, president of GHCAA,
told India Legal: “The urgent meeting
saw a record attendance and it was felt
that injustice had been done to a judge
of immaculate professional credentials.”
Twenty senior advocates of the Guj-
arat High Court in a letter made a plea
“with a feeling of deep anguish and dis-
may” to the five-member Supreme Court
Collegium to reconsider the transfer
decision. The letter stated that Justice
Kureshi was currently the seniormost
judge of the Gujarat High Court after
Justice MR Shah was recommended for
elevation to the Supreme Court and
Justice KS Jhaveri who is currently the
chief justice of the Orissa High Court.
“Justice Kureshi is one of the finest
judges of the High Court and is respect-
ed by all for his intellect as well as for
his dignified conduct both on and off
the Bench...even a brief look at his
judgments would make it apparent
that he decides without fear or
favour, as indeed every judge
must.” The letter points out that
there were whispers going around
for quite some time that
InarareshowofsolidarityoverthetransferofJusticeAkilKureshitoBombayHighCourt,theBarin
thestatewentonstrikeandrelentedonlyaftermeetingChiefJusticeRanjanGogoi
By RK Misra in Gandhinagar
R
Rooting for a Judge
UNFAIR TREATMENT
Justice Akil Kureshi of the
Gujarat High Court was
given the transfer order

21. Justice Kureshi would be sidelined
because many of his judgments did not
find favour with the present dispensa-
tion. “The sudden transfer of a senior
judge, otherwise in line for appointment
as acting chief justice of our court to
puisne judge at number 5 in seniority in
another court, sends an absolutely
wrong signal, affects the morale of inde-
pendent judges and does great disserv-
ice to the institution,” the letter said.
It reiterated that in the past, the
country has witnessed attempts by an
assertive Executive to subvert and over-
whelm the Judiciary as it was the only
institution which could rein in the for-
mer’s misuse of power. “An individual
judge wages a lonely battle at great sac-
rifice and risk. If at times like these, the
institution does not stand behind a
judge as his or her pillar of strength and
lend support, it would be failing in its
constitutional duty at a crucial moment
in our country’s history,” it stated.
The GHCAA president, who along
with his office-bearers called on Chief
Justice Gogoi and had more than an
hour’s meeting, refused to divulge the
details, but said that their decision to
postpone their strike should be indica-
tive enough. “The meeting was con-
structive,” he added.
Lawyers, across the board, have
nothing but praise for Justice Kureshi.
“Even as a lawyer, soft-spoken Justice
Kureshi’s integrity was above board. He
is a rock-solid judicial person. It has
never mattered to him who a person is,
whether you are the juniormost or the
seniormost. He is a judge of meticulous
credentials, unimpeachable integrity
and unassailable grace,” said legal lumi-
nary Krishnakant Vakharia. Another
legal veteran Sudhir Nanavaty too had
nothing but praise for him.
S
enior advocate and former presi-
dent of the Supreme Court Bar
Association Dushyant Dave
termed the transfer of Justice Kureshi as
the last straw on the camel’s back and
voiced concern about whether the
Judiciary could recover from this move
to assert its strong independence and
impartiality, at least in Gujarat. “One
really wishes that the Collegium, espe-
cially of the extraordinary calibre as at
present, would venture to cross-check
the input or materials that concerned
authorities may have placed before it
from independent sources, especially
members of the Bar and former
Supreme Court judges who came from
Gujarat High Court,” he stated.
Oza said that Justice Kureshi was
being penalised by the present govern-
ment for his judicial pronouncements.
These pertained to the Lokayukta case
in which he had ruled against the
Narendra Modi-led Gujarat government
by upholding the decision of the gover-
nor in appointing retired Gujarat High
Court judge RA Mehta to the post and
for his decision to send Amit Shah, now
BJP president, to judicial custody in the
Sohrabuddin alleged fake encounter
case. “The Lokayukta order of the Guj-
arat High Court was subsequently up-
held by the Supreme Court,” he said.
Numerous other lawyers echo this line
of thought.
On his part, Justice Kureshi remains
unperturbed. He has shunned all media
efforts to seek his views and dutifully
taken up his new charge in Mumbai.
The highly respected judicial officer has
a Gandhian legacy. His grandfather,
Abdul Kadir Bawazeer, was a close
friend and lifelong associate of
Mahatma Gandhi and came to India
along with him from South Africa. His
father, Hamid Kureshi, was born in
Sabarmati Ashram and played in the lap
of the Mahatma. He was a Gujarat High
Court advocate and was head of the
Sabarmati Ashram Preservation and
Memorial Trust. He passed away in
2016. In keeping with his last wishes, he
was cremated as he did not desire to
waste space which would have been
taken up by a ritual burial.
With such an illustrious legacy, it is
no wonder that Justice Kureshi too has
made a mark in his field.
| INDIA LEGAL | December 10, 2018 21
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Justice Akil Abdul Hamid
Kureshi was born on
March 7, 1960. and retires
on March 6, 2022. He
passed BSc (Mathematics)
in 1980 and LLB in 1983. He
joined the Bar and started
legal practice in July 1983.
He was appointed Additional
Central Government
Standing Counsel from
March 1992 to March 1998.
He was assigned the entire
work of the Central
Administrative Tribunal,
Ahmedabad. Besides han-
dling many service matters
for the government, he also
looked into land acquisition
cases, criminal matters and
passport issues. He was
appointed additional counsel
for the income tax depart-
ment in January 2000 and
made additional judge of the
Gujarat High Court on March
7, 2004. He was made a
permanent judge on August
12, 2005.
Makingamark
UNITED STAND
Advocates protesting against the transfer of Justice Akil Kureshi
gujaratglobal.com

22. of crime and violence against
women, which is not expected
from an esteemed institution
like Aaj Tak”.
The notice demands that
Aaj Tak immediately stop the
telecast of the promo, and
publicly tender an apology
and mentions that failure to
do so will compel the BCD to
take civil and criminal action
against the channel and the
concerned persons. It also
demands that Aaj Tak disclose
the names with complete
addresses and other details of
the institutions/mediums/
channels where the said pro-
gramme has been telecast till
date and to deliver all the edi-
ted and original footage of the
said programme to the BCD.
KC Mittal, chairman, BCD,
told India Legal that the
promo “defames the entire
legal fraternity. They must
apologise or we are going to
prosecute them for what they
have done.” In its defence, Aaj Tak says
the “promo highlights one of the funda-
mental needs in society—to be honest
and true. In the current state of affairs
where credibility is the only answer to
unsubstantiated noise, it is important to
have brands like Aaj Tak that carry the
flag of truth in an environment that is
sensationally driven”.
The “Saare Jahan Se Sacha” promo
has three segments of about 45 seconds
each. The other two show a doctor and
real estate agent, respectively, in similar
unflattering light. The doctor is seen
forcing a patient to undergo a costly sur-
gery that is not required; the realtor
takes a middle class couple for a royal
ride in the guise of selling them their
dream home. There have been no
protests from doctors, or realtors’
associations.
Legal Eye/ Notice to Aaj Tak
22 December 10, 2018
AJ Tak says its campaign
promo “Saare Jahan Se
Sacha” represents the core of
the India Today group-
owned Hindi news channel—
fearlessness, truth and no compromise.
Lawyers in Delhi disagree.
Last week, the Bar Council of Delhi
(BCD) sent a legal notice to the TV chan-
nel, claiming that its promo in which a
lawyer is shown taking money from the
relatives of one of the accused in a rape
case defames the legal community.
In the notice, the BCD said it has
taken a serious view of the programme
where in a series of promos titled “Saare
Jahan Se Sacha”, one of the promos
shows negotiations between a lawyer and
his client (father of the accused) about a
rape case during which the lawyer is sho-
wn saying, “Bachche hain, galti ho jaati
hai” (They are kids, they make mistakes)
and shamelessly demanding fees and ex-
tracting a bundle of notes from the client
to do the needful to bail out his son.
The notice, sent through Vishnu
Sharma, secretary of BCD, said: “The
above mentioned promo is indubitably
defamatory, casting serious derogatory
aspersions on the legal profession. The
manner of presentation of a lawyer deni-
grates, scandalises and causes disrepute
to the legal profession in public, serious-
ly damaging the image and reputation of
members of the profession. The contents
of the ad/promo of your TV programme
is against the dignity, integrity and image
of lawyers and demeans the whole issue
LawyersinDelhi,upsetattheirfraternitybeingportrayedinabadlight
inAajTak’sTVpromo,havesentalegalnoticetothechannel
By Kunal Rao
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
TOUCHING A RAW NERVE
The Aaj Tak promos show a lawyer (above), a
doctor and a real estate agent in poor light,
causing protests from the Bar Council of Delhi
ThenoticedemandsthatAajTak imme-
diatelystopthetelecastofthepromo,
andpubliclytenderanapology,otherwise
theBCDwillbecompelledtotakecivil
andcriminalactionagainstthechannel.
The Jury Is Still Out
A

24. Legal Eye/ Importance of Ethics
24 December 10, 2018
S per Black’s Law Dic-
tionary, legal ethics, also
termed as etiquette of the
profession, refers to the
minimum standards of
appropriate conduct with-
in the legal profession. This involves
duties that its members owe to one
another, their clients and courts. In gen-
eral terms, legal ethics refers to the pro-
fessional regulations that govern the
conduct and moral lives of lawyers.
The Preamble to the UN’s Basic Pri-
nciples on the Role of Lawyers states:
“…an independent legal profession is
integral to upholding the rule of law.
Whereas adequate protection of human
rights and fundamental freedoms to
which all persons are entitled, be they
economic, social and cultural, or civil
and political, requires that all
persons have effective access to legal
services provided by an independent
legal profession.”
The legal system of any government
is executed through the administration
of justice. A sound and healthy system
for administration of justice is necessary
to uphold the rule of law as mandated
by the Constitution as well as to attain
peace and stability in the nation.
Courts, judges and lawyers, in turn, are
said to be the torchbearers and true
upholders of this system. As courts rely
on the pleadings rendered by lawyers,
this duty rests on their shoulders. The
confidence of people may suffer a set-
back and access to justice may be hind-
ered if lawyers are unable to profess
ethics in their professional conduct.
There cannot be an exhaustive list of
these desirables but honesty, fairness,
equity, and integrity are a few qualities
in the quest for justice. The code of pro-
Thelegalprofessionisgovernedbyamoralcodethatisthekeytomaintainingindependenceand
accountabilityandinstillingtrustamongclients
By Ritu Gupta
A
A Question of Integrity
UNI
DISRUPTIVE TACTICS
Lawyers of Patna High Court protest against
the proposed Advocates (Amendment) Bill

25. fessional responsibility delineates con-
duct that is “rational”, “judicious” and
consistent with the “norms of the pro-
fession and the rule of law”.
The relationship between lawyers
and clients is said to be based on the
uberrima fides principle, which means
utmost good faith. The abuse of this
faith would not only block administra-
tion of justice but be responsible for
deterioration of the noble profession.
Moreover, any such single incident puts
a serious question mark on the entire
fraternity, and professional ethics then
become indispensable. The oft-quoted
aphorism, “Not only must justice be
done; it must also be seen to be done” is
applicable to judges. At the same time,
it is true for lawyers also while dispens-
ing their duties as officers of the court.
In the words of Immanuel Kant: “In
law, a man is guilty when he violates the
rights of others. In ethics, he is guilty if
he only thinks of doing so.”
In Noratanmal Chaurasia v MR
Murli, the Supreme Court held that
misconduct has not been defined in the
Advocates Act, 1961, but professional
misconduct envisages breach of disci-
pline and may be defined as transgres-
sion of some established and set stan-
dards of practice. It is wide enough to
cover omissions and commissions,
whether done intentionally or uninten-
tionally. Further, in Tulsidas Amanmal
Karim, it was held that any conduct
which, in any way, renders a person
unfit for the exercise of his profession,
or where he is likely to tamper with or
embarrass the administration of justice
by a high court or any subordinate court
may be taken as misconduct.
In this case, the following two tests
were laid down: (1) the conduct of the
advocate is such that he must be regard-
ed as unworthy to remain a member of
the honourable profession; and (2) the
conduct of the advocate is such that he
must be regarded as unfit to be entrust-
ed with the responsible duties that an
advocate is called upon to perform.
The lawyer-client relationship too
has various connotations and aspects.
Some of them are:
A lawyer is under a duty to act as per
his capability and potential, and guide
his client in the best possible manner.
The action must be diligent and must
be taken in a time-bound manner.
He should treat the client fairly and
protect his interests in the most befit-
ting manner. He should avoid conflict of
interest by not engaging with more than
one client in the related matter.
He should ensure the availability of
resources needed to enable him to dis-
pense his duties effectively.
At every relevant point of time, the
client should be updated and kept
informed of the possible outcomes of
the steps taken and the reasonable
duration of time that may be involved in
the process.
He should advise the client in a swift
and polite manner that is easily under-
standable.
The lawyer should maintain the confi-
dentiality of the discussion and the doc-
uments submitted to him, during the
course of the pendency of litigation and
even afterwards, till a reasonable time.
He should act as per the trust and faith
of the client.
As the relationship with the client is
contractual, reasonable professional fees
should be charged from him as agreed
with him. The lawyer is expected to
resort to legitimate means to recover
professional dues from the client.
In their capacity as officers of the
court, lawyers should not be complicit
in misleading the court. If during the
pendency of the case, a lawyer learns
about any fraud or wrongful depiction
by his client, he should convey the
details to the court.
Principle 14 of the UN’s Basic
Principles on the Role of Lawyers says:
“Lawyers, in protecting the rights of
their clients and in promoting the cause
of justice, shall seek to uphold human
rights and fundamental freedoms recog-
nised by national and international law
and shall at all times act freely and dili-
gently in accordance with law and
recognised standards and ethics of the
legal profession.”
Any deviant or defiant behaviour by
lawyers brings disrepute to the entire
legal community. Hence, professional
ethics is the key to maintaining inde-
pendence and accountability of the legal
profession. The importance of such
practices must be inculcated in budding
lawyers when legal education is impart-
ed to them. Professional bodies like Bar
Councils must ensure inclusion of legal
ethics in the curriculum of law universi-
ties, faculties, schools and colleges. Bar
Associations must take strict action
against professionals who indulge in
wrong practices. The principles of legal
ethics would help build a justice deliv-
ery mechanism that shall command
respect from all stakeholders, and in
turn, help establish the rule of law.
—The writer is a professor at
National Law University, Delhi
| INDIA LEGAL | December 10, 2018 25
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Theimportanceoflegalethicsmustbe
taughttoyounglawyers.Professional
bodieslikeBarCouncilsmustensureits
inclusioninthecurriculumoflawuniver-
sities,faculties,schoolsandcolleges.

26. Focus/ Fast-Track Courts
26 December 10, 2018
LARMED at the high
pendency rates of child
sexual abuse cases, the
Supreme Court had, in
late April, directed high
courts across the country
to set up panels of their judges to regu-
late, monitor and fast-track trials under
the Protection of Children from Sexual
Offences (POCSO) Act, 2012.
In July, the Union law ministry came
up with a proposal to set up “special”
fast-track courts across India to try rape
cases as part of a larger scheme to
strengthen infrastructure for better
investigation and quick prosecution in
such cases.
Last week, the Union ministry of
women and child development
announced the setting up of 1,023 fast-
track courts, using the Nirbhaya Fund,
to dispose of pending cases of rape of
children and women. “The Empowered
Committee of Officers under the
Nirbhaya Fund, under the chairman-
ship of Secretary, Women and Child
Development (WCD) ministry, has
approved three major proposals which
include setting up of 1,023 fast-track
special courts (FTSCs) to dispose of
pending cases of rape and POCSO Act
across the country,” the WCD ministry
said in a statement.
Fast-track courts were first set up in
1999 to speed up delivery of justice and
reduce pendency in courts, which across
India and at all levels accounts for near-
ly 33 million cases as of December last
year. Though they were established for a
limited period, they were given periodic
extensions. The first fast-track court for
crimes against women was established
in 2013 in Delhi and was announced by
the government after the December
2012 gang rape and murder of a young
girl in a moving transport bus in Delhi.
The government also set up a Nirbhaya
Fund which is meant to support the ini-
tiatives of governments and NGOs
working for the safety of women.
More than 80 percent of the
Nirbhaya Fund corpus remains unused
till now and it was felt there would be
no better way to utilise the funds than
to set up fast-track courts that will
exclusively deal with rape, POCSO and
related cases. Often, cases take decades
to be resolved and the lengthy legal pro-
cedures invariably give the accused
ample opportunity to tamper with evi-
dence, intimidate witnesses, abscond or
even evade the justice system. This, in
turn, encourages other potential crimi-
nals to commit such offences, secure in
the knowledge that they can get away
with it. At the other extreme, there are
cases where undertrials remain in
prison for years without any legal aid
even when there is a real possibility of
the accused being found innocent, if his
trial were expedited.
The FTSC project has a total finan-
cial implication of `767.25 crore. In the
first phase, 777 FTSCs will be set up,
and in the second phase, 246 FTSCs
will be set up. They will be spread
across nine states and Union Territories
TheUnionministryofwomenandchilddevelopmenthasdecidedtousetheNirbhayaFundtosetup
morethan1,000fast-trackcourtstodisposeofpendingcasesofrapeofchildrenandwomen
By Sankalan Pal
A
Slow Lane to Fast Track
PLEADING FOR HELP
Children sitting on dharna in Lucknow against
the rape of young girls in Uttar Pradesh
UNI

27. and will include 100 in Maharashtra, 83
in Uttar Pradesh, while Tamil Nadu,
Telangana and Andhra Pradesh will
have 39, 38, and 34, respectively.
Since 2013, even though the initia-
tive of fast-track courts has seen some
positive results, as many as 14 states still
do not have fast-track courts. Assam,
where crimes against women top the
charts, is one of the defaulting states.
Some states like Kerala, Gujarat,
Karnataka and Madhya Pradesh, have
shown no inclination to experiment
with FTSCs. It is necessary to resolve
women related offences in a speedy
manner, and to ensure that, fast-track
courts must be established across the
country in all states and Union
Territories. The smaller states must
have a minimum of one fast-track court.
But setting up of fast-track courts
alone will not be enough unless other
elements of the criminal justice system
are also strengthened.
Scientific investigations are a crucial
aspect of investigation into sexual
offences against women. Thus, it is nec-
essary that more forensic laboratories
and equipment are in place. However,
there is a huge scarcity of forensic
laboratories, as a result of which evi-
dence gets lost and cases are delayed.
The home ministry has announced a
proposal for the procurement of foren-
sic kits for sexual assault cases to kick-
start usage of such kits in states and
UTs through TOTs (Training of
Trainers), capacity building/training for
forensics in sexual assault cases, and
strengthening of the state forensic
science labs under the Nirbhaya Fund
with a total financial implication of
`107.19 crore.
Also, a stipulated period of six
months has been prescribed for appeals
in rape cases for their speedy disposal.
Special teams for the purpose of effi-
cient investigation will also be set up to
handle these cases, while rape crimes
against minor girls will be dealt with
even more strictly with capital punish-
ment awarded to persons found guilty
of raping minors aged under 12 years.
Since these sensitive cases will have to
be dealt with with a lot of care and
attention, it is imperative that judicial
officers of the highest calibre, who do
not get swayed by media attention or
other distractions, be appointed to these
posts. Staffing these FTSCs with ade-
quate manpower is also crucial as the
number of judges is just not enough to
handle the increasing volume of cases.
S
ince the traditional ways of
complaint filing, which can be
quite frustrating at times, are still
followed, introduction of online filing of
complaints and alternative arrange-
ments of filing FIRs should also be
considered by the government. Another
drawback of the fast-track courts
scheme is that there is nothing to dis-
tinguish such courts from the regular
courts. They function just like any other
court under the same conditions that
exist in regular courts—political intimi-
dation, inequality against marginalised
sections, fear of victimisation, etc. In
short, they are fast in name but in reali-
ty, as slow as any other court.
This year also saw the Union govern-
ment, under directions from the apex
court, setting up 12 fast-track special
courts for lawmakers. These 12 courts
are being set up in 11 states, where the
involvement of politicians in criminal
cases is more, for speedy trial of the
lawmakers on a day-to-day basis. They
are expected to look into more than
13,000 cases that are pending against
1,765 MPs and MLAs. The number
works out to nearly 35 percent of India’s
total number of elected MPs and MLAs
and is a far from flattering reflection of
the extent of criminalisation that has
crept into the country’s politics.
It is to be hoped that the fast-track
courts will act equally swiftly against
criminals of all kinds, be they politicians
or rapists.
| INDIA LEGAL | December 10, 2018 27
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
KNEE-JERK REACTIONS
The first fast-track court for crimes against
women was set up in the Saket court prem-
ises (below) in 2013 after the Nirbhaya rape
Fast-trackcourtswerefirstsetupin
1999tospeedupdeliveryofjusticeand
reducependency,whichacrossIndiaand
atalllevelsaccountsfornearly33million
casesasofDecemberlastyear.
foursquare.com

28. The Supreme Court of United Kingdom
on November 27 declined an emer-
gency application submitted by one Noel
Conway, who suffers from a terminal
motor neuron disease, challenging the
Suicide Act of 1961, which makes assisted
dying illegal. The judges, however, noted
that Conway “could bring about his own
death … by refusing consent to the contin-
uation of his [non-invasive ventilation],”
calling such actions an “absolute right at
common law”.
28 December 10, 2018
Briefs
—Compiled by Sucheta Dasgupta
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Assisted” death illegal
AChinese scientist's
announcement that
he has created genetically
edited babies has rocked
the scientific world.
Thirty-four-year-old He
Jiankui of the Southern
University of Science and
Technology in Shenzhen,
China, said on November
25 that he had used the
gene-editing technique
Crispr to alter embryos
and then implanted them
in a woman who gave
birth to twin girls weeks
ago. Born of HIV positive
dads, Lulu and Nana will
be immune to HIV as a
result of the modification,
he said.
A second pregnancy
may be underway. Seven
other couples also partici-
pated in the research. He
insists his actions have
been safe and ethical.
But the Second
International Summit on
Human Genome Editing
in Hong Kong, where he
made this announcement,
has found it “deeply dis-
turbing” and “irresponsi-
ble”. Still, it rejected calls
for a blanket moratorium
on such research, saying
the work could eventually
lead to new ways to pre-
vent a long list of serious
genetic diseases. The
Chinese government has
suspended He’s research.
World’s first gene-edited babies kick up a storm
Alleged lack of cooperation from Indian
officials is making the National
Prosecuting Authority of South Africa
withdraw corruption charges against the
Saharanpur-origin Gupta brothers—Ajay,
Atul and Rajesh—who enjoy the patronage
of former South African President Jacob
Zuma—in the Estina diary farm project
scam in Free State province. A sum of $20
million (`139 crore), meant for poor dairy
farmers in Free State, was allegedly sup-
plied to the Guptas. The eight accused also
include one of their relatives, the dairy
director and three government officials.
Charges against
Guptas dropped
The Malaysian government will soon
pass a resolution that would make it
compulsory for a permit to be obtained
before building shrines, including
mosques, temples and churches; Prime
Minister Mahathir Mohamad has
announced. He was speaking in response
to a question about the recent riots near
the Seafield Sri Maha Mariamman Temple
in Selangor. The temple was built on land
owned by private developer One City
Development and there has been a dispute
over its proposed relocation. “That
(requirement) will solve the problem,”
Mahathir said.
Malaysia to soon issue
permits to build shrines
Rights advocates were disap-
pointed last week when
a federal judge in Michigan
dropped charges against a
Detroit doctor, Jumana
Nagarwala (right), accused
of female genital mutilation.
In so doing, Judge Bernard
A Friedman of the District
Court of Eastern Michigan,
United States, also declared unconstitu-
tional the 1996 law banning the act,
holding that the Congress lacked the
authority to criminalise it.
Filed in early 2017, the case is
believed to be the first ever brought
under the federal law against female
genital mutilation. Nagarwala is a per-
son of Indian origin, and she performed
the surgery on nine girls from her sect,
the Dawoodi Bohra. Four of them are
from Michigan, the others are from
Illinois and Minnesota. The judge also
dismissed charges against Dr
Fakhruddin Attar, who allowed his clinic
in Livonia, Michigan, to be used for the
procedure, and his wife, Farida, and
Tahera Shafiq who assisted in
it. Three women accused of
tricking their seven-year-olds
into undergoing the surgery
were also exonerated.
“Congress overstepped its bounds by
legislating to prohibit (female genital
mutilation),” Judge Friedman wrote in a
28-page opinion. Michigan is the 26th
state to ban the practice, the state law
being enacted months after Nagarwala’s
arrest. It comes with a 15-year sentence.
Nagarwala is still charged with "conspir-
acy to travel with intent to engage in
illicit sexual conduct" and obstruction.
The United States attorney office is
reviewing Judge Friedman's opinion.
Defence lawyer Shannon Smith has
said if the ruling is appealed, “we're
hoping the Court of Appeals and
Supreme Court agree that the 1996 law
was unconstitutional”.
“US Congress
cannot ban
female genital
mutilation”

30. 30 December 10, 2018
E have all heard of
the concept that pol-
luters must pay, an
idea that the world
has accepted. But in
a landmark judg-
ment in India, the Supreme Court has
said that government agencies and offi-
cials who do not take action against pol-
luters will also have to cough up fines or
even go to jail.
A bench of Justices Madan B Lokur
and Deepak Gupta said erring officials
who connived with polluters should be
brought to book and prosecuted under
Section 15 of the Environment Pro-
tection Act (EPA) that would invite a jail
term of up to five years. Under this Act,
defaulting government agencies would
be liable to pay fines up to `1 lakh. It
could also slap fines of `5,000 a day on
erring officials or government agencies.
The stern directive arrived on a day
when the air quality in the capital had
again plummeted to “very poor” catego-
ry. Significantly, the Court has, for the
first time, brought government officials
and agencies on the same footing as pol-
luters by allowing for their prosecution.
With this direction, the Court has
shown that it is no more ready to toler-
ate a lackadaisical attitude among offi-
cials, who in numerous cases that deal
with environmental damage, have not
followed court orders. Judges at the
National Green Tribunal have time and
again found that officials have not both-
ered to even find out the information it
asked for.
Ravi Agarwal, Director, Toxics Link,
told India Legal: “The fact that the
Court had to step in with such a direc-
tion clearly shows that we are in the
midst of a crisis. It is indicative of how
governance has broken down. It is good
that the Court did what it did as it now
puts accountability where it should and
officials will do what they are supposed
to be doing.”
The Court permitted and empowered
the Central Pollution Control Board
(CPCB) to initiate prosecution after ad-
vocate Aparajita Singh, who was amicus
curiae, pleaded that the erring agencies
and officials be brought under the ambit
of Section 15 of the EPA so that the
Board could discharge its duty accord-
ing to laid down laws. Appearing for the
CPCB, Additional Solicitor General ANS
Nadkarni said that the Board had issued
showcause notices to some nodal agen-
cies and officials to indicate that crimi-
nal prosecution against them would
be initiated.
The directions of the Court were
welcomed by the Centre for Science and
Environment(CSE), a Delhi-based
organisation, which was actively
involved in documenting and helping
the government formulate policies to
fight pollution. In its numerous cam-
paigns, it has repeatedly said that laws
are just not enough as what is crucial is
implementation.
Chandra Bhushan, deputy director of
CSE, told India Legal: “What the Court
did was just to reiterate the law. The law
cannot differentiate between the private
and public sector and both can be prose-
cuted for breaking it or not doing what
they are mandated to do. Even if the
Delhi municipality lets out untreated
water into a river, it will be prosecuted.
It cannot now hide behind the fact that
Inanovelandsternorder,theSupreme
Courthassaidthatgovernmentagencies
andofficialswhohaveconnivedwith
pollutersshouldbebroughttobookand
prosecutedeitherwithfinesorjailterms
By Ramesh Menon
W
Heavy
Price for
Pollution
Spotlight/ Pollution/ Crackdown on Erring Officials
Anil Shakya

31. | INDIA LEGAL | December 10, 2018 31
it is a part of the government.”
The CPCB told the Court that it had
followed its earlier directions and creat-
ed Twitter and Facebook accounts so
that the public could lodge complaints
about pollution. It said it had received
749 complaints from the National
Capital Region in the first 22 days of
November. It had taken action on 500
of these complaints, it said.
The Court asked the Board to initiate
prosecution against officials who had
not acted on the remaining 249 com-
plaints. “Why do not you prosecute
these officials? You should prosecute
them. Let these people realise what they
have done,” the bench told Nadkarni.
Though the Environment Pollution
(Prevention and Control) Authority, con-
stituted over 20 years ago, was vested
with powers to file criminal complaints
against polluters under Section 19 of the
Environment Protection Act, 1986, it
never did so. This just proves that laws
are not the answer. Implementation is
the key.
V
ivek Chattopadhyay, senior pro-
gramme manager, Clean Air
Programme, CSE, said: “The
Supreme Court has set a higher bench-
mark for enforcement. Observations by
it indicate that even local agencies such
as municipalities can be made legally
accountable for not taking action on a
complaint. The Court has given a stern
message to the authorities to take the
deterioration in the city’s air quality
seriously. The mediocrity and non-
accountability on complaints is often
blamed for many instances of violation,
including garbage burning, polluting
industrial units or vehicles which spew
toxic fumes. No action against polluters
frustrates people.”
Chattopadhyay added: “Apps and
social media handles have become a
popular grievance reporting system.
This has made it transparent to find out
whether action has been taken on a
complaint. Inaction can no longer
be hidden.”
SPEWING POLLUTANTS
(Clockwise from above) The Waste-to-Energy Plant at Okhla; a man collects
recyclable items in the polluted Yamuna; Fire-fighters dousing flames at a
dumping ground in Ghaziabad
Anil Shakya
UNI

32. An affidavit filed by the CPCB said
that an efficient mechanism for resolv-
ing the complaints through social
media could be ensured if nodal agen-
cies followed such accounts of the
Board. It told the Court that in order to
prioritise action on complaints received
through social media, it has started
attending to them by sending field
teams to locations where there were
allegations of pollution.
An analysis of complaints during a
clean air campaign revealed that the
highest number of air pollution inci-
dents was related to construction and
demolition activities. It was followed by
burning of waste, road dust, unpaved
areas and roads, traffic congestion and
industrial emissions.
It is little wonder that the NCR was
recently gripped by an environmental
emergency. It led to knee-jerk reactions.
The government banned the entry of
trucks into the capital. This led to mas-
sive traffic jams as trucks were parked
along roads outside the city limits clog-
ging them. The Delhi government was
even toying with the idea of re-introduc-
ing the odd-even scheme where only
odd- or even-numbered cars would be
allowed on a particular day.
T
here was also a Supreme Court
order allowing only green crack-
ers during Diwali, but no one
knew what it meant. Timings to light
crackers were limited to two hours. The
police was told that it would be respon-
sible for enforcing the directions of the
Court. Of course, the order was blatantly
violated as one could hear crackers burs-
ting till 6 am the morning after Diwali.
The police looked the other way. Only a
minuscule percentage of violators was
booked. However, the situation will be
different next year as the police can be
prosecuted, according to the direction of
the apex court.
An online survey among 7,558
Delhiites by Local Circles, a social
engagement platform, found that 35
percent of the capital’s residents wanted
to shift to cities with cleaner air. They
said they were not happy with the steps
taken to tackle pollution. Many said
they were planning to get air purifiers
and masks. Thirty percent of the partici-
pants said they had a relative who had
consulted a doctor for pollution-related
health issues.
A recent report of the World Health
Organisation said that at least 60,987
children in India under the age of five
had died due to causes linked to air pol-
lution in 2016. Soon after, in November,
another report from the United Nations
Environment Programme (UNEP) that
examined science-based solutions to air
pollution in Asia, underlined the role of
India’s Supreme Court in tackling pollu-
tion. “The impetus for regulatory change
sometimes comes from institutions out-
side government agencies,” the report
said, citing court orders such as the one
that shifted Delhi’s entire public trans-
port fleet onto compressed natural gas.
It also mentioned other Indian laws
such as the Air Prevention and Control
of Pollution Act, 1981, Motor Vehicles
Bill of 1988, Auto Fuel Policy of 2002,
National Environment Policy of 2006
and the National Green Tribunal Bill
of 2009.
The report also suggested post-com-
bustion controls which are end-of-pipe
measures to reduce sulphur dioxide,
nitrogen oxides and particulate emis-
sions at power stations and in large-
scale industry. Other measures include
industrial process emission standards,
especially for iron and steel plants,
cement factories, glass production and
chemical industry. It also suggested
these standards for vehicles and dust
control. It called for regulation of agri-
cultural crop residues, residential
waste burning, forest fires, livestock
manure management, nitrogen fertilis-
ers, brick kilns, international shipping
and refineries.
The government’s target is to reduce
pollution by 20 to 30 percent. Will this
direction by the top court help? One
just hopes it will as we all have a right to
breathe air sans poison.
32 December 10, 2018
“ThefactthattheCourt
hadtostepinwithsucha
directionshowsthatwe
areinthemidstofacrisis.
Itshowshowgovernance
hasbrokendown.”
—RaviAgarwal,
director,ToxicsLink
“TheobservationsbySC
indicatethatevenmuni-
cipalitiescanbemadelegally
accountablefornottaking
actiononacomplaint.”
—VivekChattopadhyay,
seniorprogramme
manager,CSE
“WhattheCourtdidwas
justtoreiteratethelaw.
Thelawcannotdifferen-
tiatebetweentheprivate
andpublicsectorand
bothcanbeprosecuted.”
ChandraBhushan,
deputydirector,CSE
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Spotlight/ Pollution/ Crackdown on Erring Officials

33. | INDIA LEGAL | December 10, 2018 33
Media Watch
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
I
s there place for two Arnab Gos-
wamis? Heavens forbid! It could lead
to a rush for the emergency wards,
but on the horizon is a Hindi version of
the enfant terrible of television news. His
name is Shamsher Singh and he will be
editor of Republic TV’s Hindi channel
called Republic Bharat, which will be
launched in time for the 2019 polls.
Singh has been hired from India TV, orig-
inally NewsX owned by Peter and Indrani
Mukerjea, now part of the ITV Group that
also owns The Sunday Guardian news-
paper. Singh has also worked for Zee
and Aaj Tak. Republic TV’s majority
owner is BJP MP Rajeev Chandrasekhar
and he had hired a company called
Client Associates, a financial consultan-
cy firm, to look into whether an IPO
would work better than finding a major
strategic investor. The buzz in the Hindi
news television space was that Chand-
rasekhar was under pressure by his
party bosses, mainly Amit Shah, to
launch a Hindi version of Arnab and the
pro-BJP channel he anchors as editor-
in-chief and part investor, before the Lok
Sabha polls. The Hindi TV news genre
has a far greater reach than English
channels. Chandrasekhar was willing to
do that but he was reluctant to put in
more money. The figure being quoted
for a strategic investor is around `120
crore. What is certain is that Republic TV
Hindi will be up and running by January-
February 2019.
A Bilingual Republic
N
ational news broadcasters are
grinning all the way to the bank.
After some challenging times
with fierce competition leading to slash-
ing of advertising rates, one event—
assembly elections in five states—has
boosted their bottom lines, courtesy of
the BJP. In the run-up to the elections,
the BJP emerged the biggest advertiser
on television, dislodging big-time adver-
tisers like Netflix, Trivago and Nestle.
The data compiled by the Broadcast
Audience Research Council (BARC)
showed that the BJP’s advertising blitz
appeared on television channels a mind
blowing 22,099
times. The bonanza
was confined to nat-
ional channels, most-
ly Hindi, apart from
regional and local
channels popular in
Madhya Pradesh,
Rajasthan and Chha-
ttisgarh. The other
beneficiary was
advertising firm
Ogilvy & Mather
which has been working on BJP cam-
paigns since the 2014 elections. Till
November 14, the BJP had toppled
number one advertiser Vimal Pan
Masala. The big question, of course, is
who all are funding the huge expense
involved. Corporate India seems to be
still betting on Narendra Modi and the
Ambani brothers, Gautam Adani and a
host of other biggies have electoral
trusts as part of their portfolio. In
assessing the money involved, a com-
parison with FMCG giant Hindustan
Unilever may be in order—HUL spent
`1,070 crore on advertising in the quar-
ter ending October-November.
J
ournalist and celebrity newscast-
er Ravish Kumar never lets go an
opportunity to lampoon the politi-
cal classes, and he had a juicy oppor-
tunity last week in Gwalior where he
was invited to address the annual con-
vocation at a prominent engineering
college. On stage with him was the
chief guest, the Jammu & Kashmir
governor, fresh from his controversial
move to dissolve the state assembly.
Ravish started conventionally enough,
reminding students about their res-
ponsibilities and spoke on accounta-
bility before he could no longer resist
a dig at his fellow speaker on stage.
“In the coming days you will venture
into public life. You should be con-
cerned about the state of the Chambal
river and also about the state of the
fax machine in the Raj Bhawan in
Srinagar,” he quipped. The reference
everyone knew by then—the fax
machine that stopped working when a
coalition of parties sent across a letter
staking a claim to form the govern-
ment. While Governor Satya Pal Malik
put on a brave face, Ravish was not
going to let the opportunity slip.
Speaking in Hindi, he added: “You
being the students of technology,
should concentrate on technology
which cleans sewers, and also make a
fax machine that does not break down
after 7 pm.”
"Why did I say this? If I wished I
could have kept this fact aside in hon-
our of the special guest here, but I
said it in his presence because he is
the representative of democracy, and I
have my complete faith in him that he
will never tell me that Ravish Kumar
has said it on the instructions of ISI.
This is democracy. You face the per-
son who you want to ask the ques-
tion.“ Round One to Ravish.
Light and Dark
Money for Jam