India Legal 12 March 2018

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DISORDER,
WiththechiefjusticeaskedtoformaConstitutionBenchtoresolveanapparentconflict
betweentherulingsoftwothree-judgebenches,theapexcourtiscaughtinacontroversyof
itsownmaking.Whathasledtothis?
Slapgate: The IAS vs
Kejriwal unreality show
Karti Arrest:
Political vendetta? w
SUPREMECOURT
askeedddddddddddddtttttttoformaConstitutionBenchtoresolveanapparentconflict
DISORDER!

RIME MINISTER Narendra Modi’s
“Make in India” initiative has been a
bit of a flop. The defence sector,
anointed as the lead agency in what
could have been a laudable scheme
“envisaged to galvanize manufacturing, contin-
ues to languish at the altar of procedural delays
and has failed to demonstrate its true potential”.
This is not criticism from some opposition
party but rather the words of India’s own
ministry of defence which has written a
stinging indictment of the lethargy that so
often overtakes and stymies otherwise praise-
worthy enterprise.
In particular, the report, addressed to the
prime minister, says that the “desired level of
indigenization and self-reliance in defence
manufacturing research and development and
timely equipping of Service are some of the
areas where the situation continues to be far
from satisfactory”.
Perhaps the prime minister himself has
something to answer for on this subject. India
has hardly been transformed into a “come hith-
er” nation during the last three years of
Narendra Modi’s governance. The ease of doing
business, notwithstanding official statistics, is no
easier than before. The corruption index, high
taxation, countervailing duties and protection-
ism remain high. There is a loss of confidence in
the banking system. Consumer buying has ebbed
since demonetisation. New investments are not
even worth talking about and Chinese goods are
literally swamping the marketplace.
At a sectoral level—defence—the continuing
Rafael purchase for the Air Force appears to be
eating into Modi’s grandiloquent design. For
more than two decades, defence experts have
been predicting a virtual existential crisis for the
Indian Air Force. Its frontline fighter strength
has inexorably depleted, with inevitable phase
out of obsolescent aircraft, scientifically predict-
ed according to their age, airframe fatigue, out-
moded systems and laughable armament
avionics. The much ballyhooed “two-front” war
would be nothing short of a disaster under
these circumstances.
More than 20 years ago, IAF planners began
identifying options to keep their strength at the
sanctioned 42-combat squadron level, specifical-
ly to replace the 20 squadrons of MiG-21 vari-
ants plus 10 squadrons of MiG-23/27s which
constituted the bulk of the IAF combat force,
with next generation multi-role fighter types.
Says Vayu magazine editor and former Jane’s
Defence Weekly commentator Pushpindar
Chopra: “In fact, this situation was well-under-
stood much earlier, when in 1983 the govern-
ment of India constituted the Aeronautical
Development Agency to manage, fund and mon-
itor progress of the light combat aircraft (LCA)
to be indigenously designed, developed and
manufactured in India to meet the IAF’s expect-
ed MiG-21/27 replacement requirements from
the late 1990s.”
He adds that this programme has “tragically
floundered” for over three decades. The handful
of Tejas LCA Mk Is produced by HAL for the
IAF have fundamental flaws in the aircraft’s
essential design (by inexperienced engineers at
ADA) and inadequacy of production infrastruc-
ture (at HAL Bangalore). In consequence,
instead of some 200+ LCAs serving with the
IAF already, there is today just one LCA
squadron being raised, equipped with just a
handful of LCAs which too have doubtful opera-
tional capability.
Says a senior IAF planner: “The possibility of
this situation had alarmed IAF planners in the
late 1990s when the government was urged to
hedge against continued delays in the LCA pro-
gramme and efforts made to induct 126 Mirage
2000s to supplement the 50-odd Mirage 2000s
already in IAF service, which were considered as
the most effective multirole fighter extant.” This
requirement was accepted by the government
MAKE IN INDIA
BITES THE DUST
Inderjit Badhwar
Letter from the Editor
P
4 March 12, 2018

and was the basis for formalization of the
“Medium Multi-Role Combat Aircraft” pro-
gramme, with the IAF shortlisting four fighter
aircraft types that best met its requirement.
These were the Dassault Mirage 2000, Lockheed
Martin F-16, Saab Gripen and MiG-29M (later
re-numbered as MiG-35).
T
he initial request for information (RFI)
was sent to the four companies in 2004
but inexplicably, the follow on request for
proposal (RFP) was delayed till 2007 and when
this took place, amazingly, included far heavier,
complex and very expensive aircraft types such
as the Eurofighter Typhoon, Boeing F-18 Super
Hornet and Dassault Rafale.
“This was considered by experts as being most
unprofessional since the very purpose of having a
‘medium’ multirole fighter to replace the MiG-
21/27s (by implication also affordable in large
numbers) was now completely defeated,” says
Chopra. The MMRCA competition became farci-
cal as, even though six different fighter types were
strenuously evaluated, including flight testing
and armament firing taking place, the shortlisted
types were not only 50 percent heavier than the
MMRCA specifications but at least twice as
expensive to procure and multiple times more
expensive to operate. As a wag put it: “Some
termed this as comparing apples with pineap-
ples!” Inevitably, and for reasons that need not be
spelt out here, the Dassault Rafale was chosen in
January 2012 but the contract was not formalised
for its procurement and licence production in
India (total of 126 aircraft) floundered till the
change of government in 2014. Why?
The new prime minister’s flash announce-
ment while visiting Paris in mid-2015, ordering
36 Rafales directly from France with no follow
on transfer of technology or production in India,
took the community by surprise as this not only
drastically reduced the IAF’s requirement (from
126 aircraft) but gained absolutely no advantage
for the Indian industry and the “Make in India”
bombast was defeated by the very person who
had coined the phrase! Technically too, the
MMRCA tender remained “live” and the other
contender (Eurofighter) were still in the run-
ning. Technically, there could have been an inter-
national legal dogfight over this but the losers
did not choose to pursue it.
The situation in 2018 is very dark for the
Indian Air Force and the only silver lining could
be acceptance of the IAF’s plea to select a single-
engine fighter and procure/build this type in
India in sufficient numbers to arrest the drastic
decline in combat fleet. The handful of Rafales
will only equip two squadrons by 2021 while the
blighted LCA will equip perhaps another two by
the same time. By 2021, however, the IAF will
have lost all its remaining 11 squadrons of MiG-
21/27s, leaving the service “on par” with its key
adversary, the Pakistan Air Force which will have
about the same number of combat squadrons.
With China now wielding its next generation
fighters in Tibet and the situation in Kashmir
remaining explosive, it is imperative that the
government pulls out all stops and rapidly pro-
ceeds with the process that it began in 2016. And
that is to identify a suitable lighter fighter which
is not only of the next generation but can be pro-
cured in large numbers at an affordable cost and
within the next three years.
The sad irony is that instead of “making in
India”, India is today the world’s largest single
importer of arms. And despite this, it cannot
even meet the real defence needs of its air force.
| INDIA LEGAL | March 12, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
PrimeMinister
NarendraModi’s
announcementinParis,
ordering36Rafales
(above)directly
fromFrancewithno
followontransferof
technologyor
productioninIndiahas
reducedtheIAF’s
requirement.The
“MakeinIndia”
bombastwasdefeated
bytheverypersonwho
hadcoinedthephrase!

ContentsVOLUME XI ISSUE 17
MARCH12,2018
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6 March 12, 2018
Battle of the Benches
With the Chief Justice asked to form a Constitution Bench to resolve an apparent
conflict between the rulings of two three-judge benches, the top court is caught
in a controversy of its own making. What has led to this?
LEAD
12
Don’t Punish, Reform
Following an apex court initiative, the centre will frame guidelines for setting up open
prisons which are a far cheaper and more humane approach to rehabilitating prisoners
18
SUPREMECOURT
State’s Problem Children
In an indictment of the treatment of young offenders by
various governments, directions were laid out for them
to follow in order to invigorate the juvenile justice system
16

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
International Briefs..........39
Media Watch ..................49
Satire ..............................50
Cover Design
ANTHONY LAWRENCE
Leaderless NGT
Since Justice Swatanter Kumar retired, the green tribunal has no
chairperson, leading to some of its benches discontinuing hearings
24
COURTS
36
42
Proactive Proceedings
In a move that could reduce pendency, a bench has ruled that
retired judicial officers can be appointed as high court judges
21
Ghoulish Circus
Actress Sridevi’s demise has
brought into focus the sheer
hysteria, conjecture and
professional illogicality of the
Indian media and is a cruel
travesty of facts
PROBE
44No Lessons Learnt
The centre’s move to ease the burden of students has drawn flak from
educationists who say this will not make them globally competent
EDUCATION
46Chasing the
Dragon
Though the foreign secretary’s visit to
Beijing was meant to ease tensions,
Doklam-like incidents are likely to continue
as China aggressively pursues turf claims
GLOBALTRENDS
Was Delhi chief secretary Anshu Prakash
really thrashed inside Arvind Kejriwal’s
residence? India Legal presents an
exclusive take on the ugly showdown
which has nonetheless forced the AAP to
propose showing footage of their meetings
Live Screaming?
Old Boy
Network
In nearly seven decades of its
existence, the Supreme Court
has seen a sum total of six
women judges. Is patriarchy
the reason behind this imbal-
anced statistic?
26
LEGALEYE
Harmony is the Answer
Eminent panellists on the India Legal Show felt that the objective of world peace could
be achieved if nationalism could seen separately from faith
40
SPOTLIGHT
Trigger-Happy Police
In a brazen display of power, Uttar Pradesh cops have been
killing an average of 3.6 criminals per day in “encounters”
29
CONTROVERSY
Scam or Vendetta?
Punjab chief minister Captain Amarinder Singh’s son-in-law is
facing a CBI case registered over a non-performing assets issue
32
STATES
Damage Control
Is Karti Chidambaram’s arrest an attempt by the Modi government
to restore credibility hurt in the wake of the Nirav Modi scam?
34
POLITICS
Also a Safe Haven
Tihar Jail sees a 10 percent rise in occupancy during winters as the
food and medical care it provides are a big draw for petty criminals
30
FOCUS

8 March 12, 2018
“
RINGSIDE
“Corruption is crim-
inal, cancer is not.
Corruption is inten-
tional, cancer is
not.... my colleagues
working in the field
of cancer prevention
and cure will share
my outrage.”
—Eminent cancer
specialist Dr V
Shanta, asking
PNB’s head not to
link the Nirav Modi
scam to cancer
“Every Hindu is my
own brother. In
India one may fol-
low different eating
habits, way of wor-
shipping the gods,
philosophy, lan-
guage and culture.
But all of them
are Hindus...”
—RSS chief Mohan
Bhagwat at a gather-
ing of RSS workers,
supporters and sym-
pathisers, in Meerut
“On the official
email address of
Nirav Modi, we had
asked him to join
the investigation; he
replied that he has
businesses here
(location not
known) and he
won’t be able
to join."
—CBI spokesperson
Abhishek Dayal
“To the world, she
was their Chandni...
the actor par excel-
lence... their
Sridevi... but to me
she was my love, my
friend, mother
to my girls, my
partner...”
—Boney Kapoor, in
an open letter via
the late Sridevi’s
Twitter handle
“No, no other
Kejriwal will
emerge from my
protest now. I am
getting affidavits
from those
supporting me that
they will not
join politics.”
—Social activist
Anna Hazare, who
will launch an agita-
tion against the cen-
tre in Delhi on
March 23
“Now, the prime minister, who I think is a fantastic
man, called me the other day and said we are lowering
it to 50 per cent. I said okay, but so far we’re getting
nothing. So we get nothing. He gets 50 (per cent), and
they think we’re doing — like they’re doing us a
favour. That’s not a favour”.
—Donald Trump referring to a telephonic conversation he had with
PM Narendra Modi, who informed him about tariff reduction on the
import of Harley Davidson bikes to India
“Everytime I (Karti
Chidambaram) have
been called, I have
been available. I
am not a ‘Hindus-
tan leaver’, I am
Hindustan
returner’”.
—Advocate Abhishek
Manu Singhvi,
arguing for his client
Karti Chidambaram
in a Delhi court after
the latter’s arrest
in Chennai
“Regarding the false
claim that i said my
wife&I were not
Hindus: This is my
sworn affidavit
before the Court.
Clearly there was a
typographical er-
ror... in the judge’s
summary...”
—Congress MP
Shashi Tharoor
clarifying he never
disputed being a
Hindu, on Twitter

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
After the controversy broke about Nirav
Modi’s presence in a photo shoot for Indian
businessmen with PM Modi at Davos, the
Ministry of External Affairs put out a state-
ment saying that Nirav Modi was not part of
the official delegation and that the group
photo with Indian CEOs was “impromptu”.
Modi, according to insiders, has been a
member of the World Economic Forum for
the last five years, as an “individual” mem-
ber. Membership for individuals costs `65
lakh approximately while rates for other
members—”industry partner” and “strategic
partner” is much higher. Just to attend one
five-day annual Davos event costs `18 lakh.
CEOs present at the event say the
photo shoot was not “impromptu”. They
were told in advance and the PM arrived 40
minutes late. The PM arrived with the official
delegation—then foreign secretary S
Jaishankar and Niti Aayog CEO Amitabh
Kant—sat down, the photo was taken, and
he got up, turned around for brief eye con-
tact with those behind, and quickly left.
MODI, DAVOS AND MODI
Speaking at two recent high
profile events, it is clear that
Narendra Modi is in cam-
paign mode for 2019. At
both the venues—one a
global business summit
hosted by The Economic
Times and earlier at the
annual meeting of the
Federation of Indian
Chambers of Commerce
and Industry—the address-
es sounded like campaign
speeches. At the ET event,
he gave a power point pres-
entation, listing his govern-
ment’s achievements,
including for farmers and
the rural populace. He
spoke in Hindi. Clearly, the
electoral results in Gujarat
and Rajasthan, have has-
tened the start of the BJP’s
official campaign for 2019.
CAMPAIGN
MODE
There are secret late-night consultations
going on in the capital to find a Prime
Ministerial candidate for 2019 who can
challenge Narendra Modi from outside the
Congress. This group is made up of BJP
rebels and their supporters and they have
been meeting at the Prithviraj Road resi-
dence of businessman and ex-Rajya Sabha
MP, Kamal Morarka. The group consists of
(above left to right) Yashwant Sinha,
Shatrughan Sinha, Arun Shourie, ex-diplo-
mat KC Singh, two senior journalists, and
AAP’s Yogendra Yadav. They hope to count-
er the TINA (There is No Alternative) factor
and project Yashwant Sinha as a PM candi-
date and are looking for supporters. Yadav
is sounding out AAP, Singh is in touch with
Akalis, Shotgun is targeting Chandrababu
Naidu, and Shourie is canvassing BJP
politicians who may be willing to switch.
KAUN
BANEGA
PM?
Information and Broadcasting
Minister Smriti Irani continues to
exert her authority on public
broadcasters, Doordarshan and
All India Radio in a bid to drag
them kicking and screaming
into the 21st century. Her latest
effort was to summon all senior
staffers and ask them how
many Twitter followers they
each had and how often they
used social media to promote
their content. Most were
novices in social media or had
a limited following. Now, she
has set targets and deadlines
to improve social media output
and assigned some junior
staffers to monitor this. This
means that apart from their own
work, including desk editing
and rewrites, they now have
double the work.
THE IRANI EFFECT
Sometimes translating official
documents can provide some
hilarity. When the draft of the
annual budget 2018 was sent to
state governments, the heading
given was Holistic Budget.
Some clerk in the Orissa publici-
ty department translated it quite
literally—as “Pavitra Budget”!
TAILPIECE

An insurance company can’t refuse to
award claim to a person just because
he/she has a genetic disorder, the Delhi High
Court (in picture) ruled. It objected to the
clause in insurance policies that denied
insurance claims to such people, observing
that it was discriminatory and against the
fundamental right to health and healthcare.
The clause defining genetic disorder in policy
documents is too “broad and ambiguous”,
“unconstitutional” and can’t be allowed
unless backed by thorough and carefully-
done tests, the Court pointed out.
The Court was hearing a case of insur-
ance claim from JP Tayal. United India
Insurance Company Ltd had denied claim to
Tayal on the ground that he was suffering
from Hypertrophic Obstructive Cardiomyo-
pathy. The company claimed that it was a
genetic disorder and hence Tayal could not
be paid as per the rules of the policy. How-
ever, Tayal got a favourable verdict from the
trial court. The insurance company chal-
lenged the verdict in the high court.
The Court asked the Insurance Regulatory
Development Authority of India to revisit the
concerned clause in all insurance documents
and ensure that such claims are not rejected.
Courts
10 March 12, 2018
Responding to a PIL ob-
jecting to the use of na-
mes and pictures of VVIPs
in private or classified ads,
the Delhi High Court refused
to issue directions. The peti-
tioner had referred to ads by
Reliance Industries Limited,
(RIL), published for promot-
ing JIO, and Hindi newspa-
per Hindustan. While RIL
used the name and picture
of PM Modi, Hindustan pub-
lished his name and picture,
among others. The petition-
er wanted the Court to issue
a writ of mandamus ban-
ning such ads. The Court
came to know that the press
council had issued a show-
cause notice to Hindustan.
In the case of RIL, the peti-
tioner did not first take up
this issue with any authority,
nor did he make RIL a party
to the case. It asked the
press council to quickly
decide the issue.
Will not issue directions on ads featuring VVIPs
—Compiled by Prabir Biswas
Unhappy with
efforts to curb
noise pollution
The Allahabad High Court
expressed its unhappiness
over poor efforts made by the
UP government to curb noise
pollution caused by blaring loud-
speakers. The Court noted that
its earlier order was not being
followed seriously as “nothing
much had been done on the
ground”. It observed that the
state government’s order issued
in January 2018 was “a sham
compliance of the Noise
Pollution (Regulation and
Control) Rules, 2000”.
The Court was not con-
vinced by the state’s move to
buy machines for measuring
noise from loudspeakers. It
appreciated the idea put forth by
the petitioner ML Yadav that all
permissions for loudspeakers
must be granted only when
these are fitted with “noise gov-
ernors”. The state government
was asked to look into the pro-
posal and come up with a “bet-
ter affidavit” within four weeks
reflecting its seriousness on the
issue. The matter will be heard
on March 12.
Considering the increase
in the number of people
killed in road accidents every
year, the Supreme Court
recently ruled that automo-
bile companies will have to
manufacture two-wheelers
fitted with safety accessories
for pillion riders. Rule 123 of
the Central Motor Vehicles
Rules states that two-wheel-
ers must be equipped with
safety accessories. The
Court upheld a Madhya
Pradesh High Court order of
2008 on the issue. The
Society of Indian Automobile
Manufacturers had earlier
appealed against the High
Court order and got an inter-
im stay from the top court.
Can’t deny
insurance
claims in
genetic
disorders
Safety for
pillion riders

Bench
versus
Lead/ Supreme Court Tussle
12 March 12, 2018
versus
BenchRecentdisagreementsbetweenvariousbenchesoftheapexcourtmaybeasignof
disciplineandproprietynotbeingfollowed.Muchisatstakeinthehearingofa
ConstitutionBenchnextweektoresolvesuchissues
By Venkatasubramanian
Bench

lating the reasons for their disagree-
ment. The concern expressed by the
Lokur bench on February 21 on the like-
ly impact the decision of the Arun
Mishra bench in departing from such a
convention would have on the institu-
tion, was considered by many as an
indictment of one bench by another.
The rule of precedent is considered as
sacrosanct in an institution like the
Supreme Court, which sits in 12 to 15
division benches, to present a picture of
unity and orderliness in its functioning
to ensure public credibility and compli-
ance with its orders.
The Lokur bench had on February 21
requested all the high courts and other
benches of the Supreme Court to ignore
the February 8 judgment of the Arun
Mishra bench till it considered the argu-
ments in favour of reference of the mat-
ter for consideration by a larger bench
on March 7. The hearing of the case by
the five-judge bench on March 6 effec-
tively renders the March 7 hearing by
the Lokur bench infructuous. That the
benches which made such references to
the chief justice were of similar strength
of two judges each, and the fact that
they did so without reasoned referral
orders, makes the controversy murkier
than what it looks like on the surface.
One of the cases referred by the CJI
for consideration by the five-judge
bench on March 6 is Indore Deve-
lopment Authority v Smt Shyam Verma
& Ors. In this case, the respondent is the
owner of a land measuring 0.231 hec-
tares in village Tejpur, Gadbadi tehsil,
Indore district. The state acquired her
land for construction of a physiotherapy
centre for mentally deficient children in
2004. A notice was issued to her to
receive the compensation, but as she did
not receive the amount, it was deposited
in the government treasury.
According to Section 24(2) of the
Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act,
2013, where land proceedings are initi-
ated under the Land Acquisition Act,
1894 (which the 2013 Act replaced),
EXT week, the Supreme
Court’s five-judge
Constitution Bench,
already hearing the chal-
lenges to biometric iden-
tification of people
through Aadhaar, is expected to give
primacy to the hearing of another case,
which emerged out of the blue.
It is rare for two benches of the Sup-
reme Court to make separate requests
simultaneously to the Chief Justice of
India (CJI) in his administrative capaci-
ty as the Master of the Roster. The
request was to constitute a larger bench
to resolve an apparent conflict between
the rulings of two three-judge benches.
Of the two benches which made the
request on February 22, one was
presided by Justice Arun Mishra (sitting
with Justice Amitava Roy, who has since
retired), and the other was by Justice
Adarsh Kumar Goel (sitting with Justice
Uday Umesh Lalit). Both the benches
were aggrieved with the decision and
observations of a three-judge bench
comprising Justices Madan B Lokur,
Kurian Joseph and Deepak Gupta the
previous day in a land acquisition case.
This three-judge bench admonished
another three-judge bench comprising
Justices Arun Mishra, Adarsh Kumar
Goel and Mohan M Shantanagoudar for
N
its February 8 judgment in Indore
Development Authority v Shailendra
(Dead) Through LRS & Ors. That bench
had found a 2014 judgment of another
three-judge bench in Pune Municipal
Corporation v Harakchand Misirimal
Solanki, per incuriam (characterised by
lack of due regard to the law or the
facts). The 2014 judgment was delivered
by a bench of Justices RM Lodha (who
has since retired), Justice Lokur and
Justice Joseph.
The Lokur bench, on February 21,
deplored that the Arun Mishra bench
had on February 8 abandoned all norms
of judicial discipline by declaring the
2014 judgment per incuriam despite
dissent by one of the three judges
(Justice Shantanagoudar) that the mat-
ter must be referred to the CJI for con-
sideration by a larger bench.
CONVENTIONS AND PROPRIETY
Conventions and propriety demand that
a bench of three judges, while disagree-
ing with the decision of a bench of simi-
lar strength, ought to make a reference
to the CJI to constitute a larger bench of
five judges to resolve the issue by articu-
FOR FAIR RECOMPENSE: A fraught issue
with farmers, land is frequently acquired by the
government or corporations for public projects
UNI

was it deposited in the court by the
Special Land Acquisition Officer. Nine
petitions were filed before the Bombay
High Court to challenge the acquisition
process. The High Court, in 2008,
quashed the acquisition proceedings. In
an appeal against the quashing order,
the Supreme Court invoked Section
24(2) of the 2013 Act, to return a find-
ing that the compensation was not paid
for a period of five years prior to the
commencement of Section 24(2) of the
Act, and therefore, the acquisition pro-
ceedings had lapsed.
Section 24 of the 2013 Act creates a
deemed fiction, that is, a provision,
which in law is meant to be true. It is an
assumption that something is true even
though it may be untrue, made especial-
ly in judicial reasoning to alter how a
legal rule operates. While interpreting
the provisions creating a legal fiction,
the court ascertains the purpose for
which the fiction is created, and
assumes all those facts and conse-
quences which are incidental or
inevitable corollaries to giving effect to
the fiction.
It was, therefore, contended that
since the 2013 Act is a beneficial piece
of legislation enacted for the benefit of
the farmers, the lapse of the proceed-
ings under the 1894 Act is an inevitable
corollary of Section 24(2) of the
new Act.
The Arun Mishra bench, in its judg-
ment in Indore Development Authority,
has upset a long-standing convention in
the apex court. That convention is that
the decision rendered by a bench of the
Supreme Court is binding on another
bench of a co-equal strength. However,
in the event of any reservation, the mat-
ter can be referred to a larger bench by a
bench of the equal strength. It is the
larger bench which can take a view con-
trary to the view expressed by a bench of
lesser quorum. The mere fact that an
argument was not raised, or reasoning
of the previous bench of equal strength
is fallacious, or a particular provision of
the statute was not specifically noticed
by the previous bench, is not a ground
and where award has been made five
years or more prior to the commence-
ment of the 2013 Act, and where posses-
sion is not taken or compensation has
not been paid, the acquisition shall be
deemed to have lapsed. As a result, the
persons whose lands were acquired
under the 1894 Act are entitled to
greater compensation, which the 2013
Act offers for a similar acquisition. The
aim of this provision is beneficial in
nature, as the 1894 Act was replaced
with the objective of ensuring reason-
able compensation to those deprived of
their lands for public purpose.
Section 31 of the 1894 Act contem-
plates that if, for any reason, the com-
pensation amount has not been paid or
there is no competent person to receive
the compensation, the collector shall
deposit the amount in court to which a
reference under Section 11 would
be submitted.
In 2014, the RM Lodha bench, in the
Pune Municipal Corporation case, held
that if the acquisition authority did not
take physical possession of the land, or
pay compensation to the landowners, or
deposit the amount, as required under
Section 31 of the 1894 Act, then the pro-
ceedings initiated under the old Act
should be deemed to have lapsed.
Citing the Supreme Court’s judgment
in Pune Municipal Corporation, the
Indore bench of the Madhya Pradesh
High Court held in the case of Smt
Shyam Verma on November 30, 2015,
that the land acquisition proceedings in
her case, began in 2004, lapsed, as the
authorities neither took possession of
her land, nor deposited her compensa-
tion in a competent court. Therefore,
the High Court directed the Indore
Development Authority, which acquired
her land under the old Act, to proceed
in accordance with the 2013 Act afresh,
if at all her land is still required for the
public purpose.
Not satisfied with the
High Court’s verdict
because proceeding under
the 2013 Act would involve
payment of higher com-
pensation to her for the
same land, the Indore
Development Authority
filed the present appeal
in 2016.
Smt Shyam Verma was
one of the several cases
decided by high courts and
the Supreme Court, relying
on the precedent of Pune
Municipal Corporation. In
that case, the amount of
compensation was not paid
to the land owners. Nor
14 March 12, 2018
(L-R) Justice Arun Mishra and Justice Amitava Roy (retired)
(L-R) Justice Adarsh Kumar Goel and Justice UU Lalit
(L-R) Justices Madan B Lokur, Kurian Joseph and Deepak Gupta
Lead/ Supreme Court Tussle

Theruleofprecedentisconsideredas
sacrosanctintheSupremeCourt,which
sitsin12to15divisionbenches,topres-
entapictureofunityandorderlinessinits
functioningtoensurepubliccredibility.
on the basis of which the binding prece-
dent can be ignored.
In another case, which is before the
Constitution Bench on March 6, the
Punjab and Haryana High Court held
that in case there is a conflict between
the judgments of the co-equal strength
benches of the Supreme Court, both
being binding precedents, it is open to
the high court to follow the judgments
which it considers appropriate (State of
Haryana v Maharana Pratap Charit-
able Trust).
PER INCURIAM
The concept of “per incuriam” signifies
those decisions rendered in ignorance or
forgetfulness of some inconsistent statu-
tory provisions, or of some authority
binding on the court concerned. In
other words, as the Arun Mishra bench
explained in its judgment in the Indore
Development Authority on February 8,
the concept means that a given decision
is in disregard of the previous decisions
of the court itself, or that it was ren-
dered in ignorance of the terms of an
applicable statute or of a rule having the
force of law.
The Arun Mishra bench, while dis-
agreeing with the previous three-judge
bench in Pune Municipal Corporation,
on the interpretation of Section 24 of
the 2013 Act, considered the question
whether it ought to refer the matter for
consideration by a larger bench. The
Arun Mishra bench reasoned that since
the acquisition had been quashed in the
Pune Municipal Corporation case, there
was no question of taking possession or
payment of compensation under Section
24(2) of the new Act. Therefore, it held
that the decision of the RM Lodha
bench could not be an authority on the
question, as a decision which was not
germane to the case cannot be said to be
a binding precedent. “It is obiter dicta
and thus has to be ignored,” reasoned
the Arun Mishra bench, while referring
to the Lodha bench’s interpretation of
Section 24(2).
The Arun Mishra bench, interpreting
Section 24(2), thus held that the non-
deposit of compensation in court under
Section 31(2) of the Act of 1894 does not
result in a lapse of acquisition under
Section 24(2) of the 2013 Act, as held by
the Lodha bench in the Pune Municipal
Corporation case. Due to the failure of
deposit in court, the only consequence
at the most may be of a higher rate of
interest on compensation as envisaged
under Section 34 of the Act of 1894, and
not lapse of acquisition, it added.
Landowners after refusing to accept the
compensation amount cannot take
advantage of their own wrong and seek
protection under Section 24(2), the
Arun Mishra bench further reasoned.
While the Constitution Bench hear-
ing the matter next week will possibly
take a view on the correctness of this
reasoning, it is the impact of this case
on pending cases that interests
observers. Among the pending cases is
an appeal by a farmer in Gujarat, whose
lands were acquired for the purpose of a
Special Economic Zone (SEZ) project to
be run by the Reliance Industries
Limited (RIL) in Jamnagar, Gujarat.
RIL had taken possession of 95 percent
of the lands acquired, and paid compen-
sation to the landowners. In the remain-
ing five percent, the collector failed to
take possession, and the compensation
was not accepted by the dispossessed
farmers, due to which the amount was
not deposited in the court.
The Gujarat High Court ruled in
favour of Reliance, holding that Section
24(2) could not apply to companies on
whose behalf the state had acquired the
land. If the State failed to take posses-
sion within the time stipulated, the
company cannot be held responsible,
the High Court held.
The outcome of the hearing by the
Constitution Bench is likely to have a
bearing on this matter to be heard by
the Arun Mishra bench on March 7.
Needless to add, if the interpretation of
Section 24(2) by the Arun Mishra bench
in Indore Development Authority is sus-
tained, it is likely to favour RIL and
other corporate and state entities which
want to avoid paying a huge compensa-
tion under the 2013 Act if the proceed-
ings began under the old Act are not
deemed to have lapsed on the stipulated
grounds.
Anil Shakya

Supreme Court/ Juvenile Justice System
16 March 12, 2018
ELSON MANDELA said:
“Our children are our
greatest treasure. They are
our future. Those who
abuse them tear at the fab-
ric of our society and
weaken our nation.” However, the state
of children in India is a cause for con-
cern. In 2005, Sampurna Behura, an
individual who was concerned with the
plight of children in the country, filed a
petition in the Supreme Court drawing
its attention to several Articles and
Directive Principles of State Policy
under the Constitution which impose
primary responsibility on the State to
ensure that the needs of children are
met and their rights are protected. She
drew attention to the Convention on the
Rights of the Child adopted by the
General Assembly of the United Nations
on November 20, 1989, to which India
is a signatory, which emphasises secur-
ing the best interests of the child, social
reintegration of child victims, and so on.
The main issue of the petition was
the failure of state governments to
implement various provisions of the
Juvenile Justice (Care and Protection of
Children) Act, 2000, including the
establishment of Child Welfare
Committees (CWCs), Juvenile Justice
Boards (JJBs), Special Juvenile Police
Units, establishment of appropriate
homes for children in need of protec-
tion, improving the living conditions of
juveniles in conflict with law, medical
facilities for children in custody of the
state and other human rights issues.
The petition was first taken up for
consideration on September 26, 2005.
Notices were issued to all the respon-
dents (Union of India and states) which
took about a year. On January 3, 2007,
the matter was taken up and the Court
observed that the Act of 2000 had not
been implemented.
After a few more hearings, the Court
impleaded the National Commission for
Protection of Child Rights (NCPCR)
and the National Legal Services
Authority (NALSA). During the course
of hearing, the Court observed that
CWCs and JJBs are not functional or
Handle with Kid Gloves
Inanindictmentofthemistreatmentofjuvenilesbyvarious
governments,theapexcourthaslaiddownspecificguidelines
By Sandeep Kumar
INCLUSIVE APPROACH
Children enjoying an activity
at a juvenile home
in Hyderabad
N
YouTube

not constituted in every district.
When the case was taken up for con-
sideration on September 11, 2015, it was
noticed from the affidavits filed by
Union of India that a large number of
children’s homes were not registered
under the provisions of the Act of 2000.
Thereafter, the Juvenile Justice (Care
and Protection of Children) Act, 2015,
was passed and brought into force on
January 15, 2016.
However the Court held: “The Act of
2000 has since been repealed and what
is now in force is the Juvenile Justice
(Care and Protection of Children) Act,
2015. The repeal of the Act of 2000
does not at all change the sum and
substance of the reliefs claimed in the
Public Interest Litigation. As such this
petition though filed way back in 2005
is not infructuous; the issues raised
being very much topical and alive
even today.”
SC DIRECTIONS
On February 9, 2018, the Supreme
Court bench of Justices Madan
B Lokur and Deepak Gupta issued
the following directions:
The Ministry of Women and Child
Development and state governments
should ensure that all positions in the
NCPCR and the SCPRs are filled up well
in time and adequate staff is provided to
these statutory bodies.
NCPCR and the SCPCRs should take
their duties, functions and responsibili-
ties with great earnestness.
State-level Child Protection Societies
and the district-level Child Protection
Units to ensure that the Act of 2015 is
effectively implemented and child care
institutions are managed and main-
tained for the well-being of children in
all respects, including nutrition, educa-
tion, medical benefits, skill development
and general living conditions.
State governments must ensure that
all positions in JJBs and CWCs are filled
up expeditiously and in accordance with
the rules framed.
It is necessary for JJBs and CWCs to
have sittings on a regular basis so that a
minimal number of inquiries are pend-
ing at any given point of time and jus-
tice is given to all juveniles. This is a
constitutional obligation.
The Ministry of Women and Child
Development must continue to make
creative use of information and commu-
nication technology not only for the pur-
pose of collecting data and information
but also for other issues connected with
the JJ Act such as having a database of
missing children, trafficked children and
for follow-up of adoption cases etc.
There is a need to set up meaningful
Special Juvenile Police Units and
appoint Child Welfare Police Officers at
the earliest and not only on paper.
NALSA is being requested to carry
forward the exercise and complete a
similar report preferably before April
30, 2018, to assist all policy-making and
decision-taking authorities to plan out
their affairs.
Each High Court and Juvenile Justice
Committee of each High Court will con-
tinue its proactive role in the welfare of
children in their state. The chief justice
of every High Court is requested to reg-
ister proceedings on its own motion for
the effective implementation of the
Juvenile Justice (Care and Protection of
Children) Act, 2015.
Finally, the Court urged the chief
justice of each High Court to seriously
consider establishing child-friendly
courts and vulnerable witness courts in
each district. Inquiries under the JJ Act
and trials under other laws such as
the Protection of Children from
Sexual Offences Act, 2012, the
Prohibition of Child Marriage Act,
2006, require to be conducted with a
high degree of sensitivity, care and
empathy for the victim.
The Supreme Court bench also
appreciated Sampurna Behura for high-
lighting the issues raised in her PIL and
the counsel for the appearing parties in
not making this an adversarial proceed-
ing, but a constructive effort for the ben-
efit of children.
PLUGGING LOOPHOLES
Union Minister for Women and Child
Development Maneka Gandhi (right)
releasing the Draft Rules of Juvenile
Justice (Care & Protection of Children) Act,
2015, in New Delhi
State-levelChildProtectionSocieties
anddistrict-levelChildProtectionUnits
havetoensurethattheActof2015is
effectivelyimplementedandchildcare
institutionsarewell-managed.
UNI

Supreme Court/ Open Prisons
18 March 12, 2018
HERE are different strokes
for different people. This is
especially seen in India’s
prisons where the rich and
powerful enjoy deluxe
accommodation, while for
the socio-economically disadvantaged, it
a hellhole. The country’s 1,387 closed
prisons suffer from overcrowding, with
an occupancy that is 14 percent above
their capacity, with 67 percent of the
population comprising undertrials.
But not for long. Following a closed
door meeting on February 13 between
stakeholders and the Ministry of Home
Affairs (MHA), there is a push towards
setting up one or two open jails in each
one of the 640 districts of the country
and guidelines will be framed in this
regard. Soon, it will be “kehnewale jail
kahen, lekin yahan par hai khushiyali
(this may be called a jail by name, but
here we are thriving)”, as the ditty from
Army, a film inspired by the iconic Do
Aankhen Barah Haath, goes.
JUDICIAL ENTERPRISE
This new initiative is thanks to a major
push by the Supreme Court. In Decem-
ber 2017, an apex court bench of Jus-
tices Madan B Lokur and Deepak Gupta
directed the centre to hold a meeting of
prison officials while hearing a writ peti-
tion on Inhuman conditions in 1,382
prisons vs the state of Assam (2013).
The petition was registered in July 2013
by an order of the same court which
came in response to a letter by former
Chief Justice of India RC Lahoti to the
then chief justice, Altamas Kabir. The
missive drew Justice Kabir’s attention to
the problems of overcrowding, custodial
deaths, suicides and gross inadequacy of
prison staff. The open prison system
effectively addresses all these problems.
The December bench’s order stated:
“The MHA to have a meeting with the
Directors General and Inspectors Gen-
eral of Prison of all the state govern-
ments and Union territories to see the
feasibility of establishing open prisons.”
At present, there are only 63 open pris-
ons in 17 states housing 6,000 inmates.
There are other very strong argum-
ents for open prisons. It has been found
that closed prisons are 78 times more
expensive than open prisons, and are,
therefore, a drain on the taxpayer. Yet
the outcome is better, with a dramatic
impact on recidivism, for the prisoner
gets rehabilitated into society and does
not perpetrate another crime, according
to experts. He learns to take care of his
family, function as an individual and
contribute to society. This system is thus
much more suited to implementing the
vision of restorative justice than retribu-
tive justice, the older goal. Technological
revolution, be it smart phones or sur-
veillance, have also rendered closed pris-
ons irrelevant in most cases.
OPEN PRISON
An open prison is one that functions
with minimum security. The prisoners
go out of the jail after a first roll call and
must return before the second. They are
required to earn their living should they
live with their families inside the jail.
The United Nations Standard Minimum
Rules for the Treatment of Prisoners,
popularly known as the Nelson Mandela
Rules, state that open prisons provide
the best conditions for the rehabilitation
of carefully selected prisoners.
The Supreme Court’s proposal, how-
ever, is not a first. The All-India Com-
mittee on Jail Reforms constituted in
1980 had recommended development of
open prisons in each state and Union
T
Followingatopcourtinitiative,thecentre
willframeguidelinesforsettingupopen
prisonswhichareafarcheaperandmore
humaneapproachtorehabilitatingprisoners
By Sucheta Dasgupta
Unshackle
These
Fetters

territory similar to the Sanganer open
camp. Started in 1963, Sanganer is the
largest open prison in Rajasthan and
houses nearly 400 prisoners. With its 29
open prisons, the state is indeed a path-
breaker in this respect.
Credit goes to independent
researcher Smita Chakraburtty, a former
lecturer of Loreto College, Kolkata, for
bringing this information out of the
shadows. Her work created awareness
about open prisons and Rajasthan’s suc-
cessful experiment in this regard. It all
started in 2014-15, when the Patna High
Court commissioned Chakraburtty to
inspect all prisons in Bihar. Her report,
submitted after visiting 58 prisons and
talking to 30,070 prisoners on record,
was published by the Bihar State Legal
Service Authority. This report was taken
cognizance of by both the National
Human Rights Commission and the
parliamentary standing committee.
DIGNITY AND LIBERTY
In 2016, the Sanganer open prison was
going through an unprecedented crisis.
Many of the inmates there had finished
their terms. Faced with the task of evict-
ing them to make way for new entrants,
D-G, Prisons, Ajit Singh, was in a
quandary and asked Chakraburtty to
come over for a visit. Chakraburtty tells
India Legal: “The prisoners were fast-
ing. They had a job in the locality; their
wives, children, everyone stayed over
there. They pleaded with me to talk to
the authorities. One of them said: ‘My
son is having an exam, how can I change
location? Please let me stay for just six
more months’. It made me think, some-
thing is very right with this system.”
The prisoners here worked according
to their capacity. A majority were con-
struction labourers. Some were primary
school teachers. A few were employed at
a weaving unit nearby and, interestingly,
a good number of them worked as secu-
rity guards. Their work gave them a
high moral standing within the commu-
nity. The prisoners took care of their
own expenses. The only thing the prison
department paid for was their lodging.
Chakraburtty did a comparative
study between the two kinds of prison
systems. Her findings were that the
expenses per prisoner per month in a
closed prison are between `7,000 and
`10,000, while in an open prison, it was
just `500. The reduction in cost comes
from staff salaries. In a closed prison,
there is one staff per six prisoners, while
in an open one, there is one staff for 80
prisoners. Chakraburtty also found that
the incidence of jailbreak in open pris-
ons was rarer than in regular prisons.
Her study was cited in the ongoing case
in the Supreme Court by Gaurav Agar-
wal, senior advocate and amicus curiae.
WOMEN AND UNDERTRIALS
Meanwhile, the road to complete crimi-
nal justice reform is daunting and long.
According to Chakraburtty, “there are no
completely male and female open pris-
ons in Rajasthan”. However, reports say
that only four open prisons accommo-
date women in the entire country. These
also include the Yerawada Open Jail in
Pune and the Women’s Open Prison in
Thiruvananthapuram.
This, says Chakraburtty, is due to the
open prison rules set in 1972 which bar
single and unmarried prisoners from
staying in there. This provision was put
in place to avoid unwanted custodial
STARTING OVER An agricultural work camp
in Bikaner for prisoners; (above, right) the
open prison in Tihar Jail
Anil ShakyaSmita Chakraburtty

employment shrank. So we have to pro-
vide prisoners with vocational training.
Also, with families staying over, an over-
haul of the drainage and sewerage sys-
tems is in order. We also need to focus
on setting up more medical facilities,”
Additional D-G, Prisons, Rajasthan,
Bhupendra Singh, told India Legal. New
health clinics are in the pipeline.
The two important areas for opening
new prisons, Agarwal feels, are acquir-
ing land and finding jobs. “In Rajasthan,
open prisons have been around for more
than 50 years and are part of the insti-
tutional process. But generating that
kind of social acceptance for the inmates
elsewhere, especially in an urban set-
ting, so that they can be trusted on the
job remains a challenge,” he says.
Yet, even in less evolved forms, the
open prison system has yielded suffi-
cient dividends, and greatly improved
the quality of life as well as the future
prospects of prisoners. Says Rupesh, an
inmate of Tihar’s semi-open prison who
manages a staff canteen on the premises
and is serving time for a murder: “I have
been a military engineer services con-
tractor. My present work has helped
increase my social skills and taught me
how to manage the negativity and dis-
grace associated with my situation, and
my own feelings as well. When I am
released, I hope to find employment in a
shoemaker’s factory in Mayapuri.”
Then there is Kalyan Sharma, grand-
father and former halwai from Chandni
Chowk’s Paranthewale Galli, who was a
pehelwan for 15 years and killed a man
in a fit of rage. He says: “I love children
and long to see the faces of my grand-
kids. I did not lie before the judge and
for the sin that I committed, I have suf-
fered. If I have to do anything more to
atone for it, I will. But I do believe I
deserve a second chance.”
To transform their lives and others
like them, the government should give
open prisons a fair chance.
“Undertrialsspendalongtimeinjailand
manygetacquittedfromjail.Myfirst
propositionishavingtheminopenjails.”
—SmitaChakraburtty,researcher
“Wearecurrentlyplanningtoconvert
someoftheoldstaffquartersintoa
women’sopenprison.”
—AbhishekDixit,Commandant,TiharJails
20 March 12, 2018
Theopenprisonsystemhasyielded
sufficientdividends,andgreatly
improvedthequalityoflifeaswellasthe
futureprospectsofprisoners.
Supreme Court/ Open Prisons
deaths resulting from people falling sick
inside prisons with no one to look after
them. But prisoners become friends
inside prisons, she says, and adds that to
deal with this category of cases,
Rajasthan prisons have come up with a
rule that says that a fellow prisoner
and/or her family who are friends with a
single prisoner should give in writing
that they will take care of her if she is
unwell. One can even register their part-
ner and stay in an open prison, says
Chakraburtty. But it is not so in other
states. The guidelines for the function-
ing of semi-open prisons in Delhi
approved by the lieutenant-governor
explicitly disallow women entrants.
However, change is around the cor-
ner. Tihar Prisons commandant Abhi-
shek Dixit tells India Legal that soon, a
women’s open prison will be set up in-
side the premises. “Open prisons are the
ideal buffer between closed prisons and
society. Without them, the prisoner
might succumb to the stigma of being a
‘jailbird’ in the outside world. We are
currently planning to convert some of
the old staff quarters into a women’s
open prison,” he says.
In Tihar, most convicted prisoners
spend about 12 years of their sentences
behind bars before becoming eligible for
semi-open prisons. Two years of good
conduct here makes them eligible to
move into open jails. The open prison
system in Tihar was started in 2013 dur-
ing the tenure of D-G, Prisons, Vimla
Mehra. However, this period of waiting
to move into an open prison varies from
state to state. For example, in jails in
Rajasthan, it is just five years in total.
Even so, the huge population of
undertrials, who typically spend a long
time behind bars, is currently ineligible
for open prisons. “Undertrial prisoners
spend a long time in jail and many get
acquitted from jail, so their incarcera-
tion does not make any sense. My first
proposition is having undertrial prison-
ers in open prisons. Right now, the pro-
cess is to have only convicted prisoners
stay in open prisons,” Chakraburtty says.
“If we have prisoners convicted in a
court of law in open prisons, and we can
trust them in open prisons, then under-
trial prisoners stand a much better
ground to be there.”
NEEDS AND CHALLENGES
Other issues bothering prison officials
are hygiene, sanitation and employment
options. “In all open jails here, there
have been work camps—mostly agricul-
tural work camps and, in some cases,
industrial ones. But it was found that as
time went by, the original avenues of

Supreme Court/Appointment of Judges
N February 23, a Sup-
reme Court bench of
Justices AK Sikri and
Ashok Bhushan ruled
that retired judicial offi-
cers can be appointed as
judges of any high court under Article
217(2)(a) of the Constitution. The ver-
dict also said that additional judges can
be appointed to high courts provided
their tenure is less than two years and
the appointment is done in conformity
with provisions laid down in Article 224
of the Constitution.
The verdict was delivered against a
petition that challenged the appoint-
ment of two retired judicial officers—
Virendra Kumar Mathur and Ram
Chandra Singh Jhala—as additional
judges of the Rajasthan High Court on
May 12, 2017.
The verdict can be seen as a possible
remedy for filling up vacancies of judges
in various high courts, thereby expedit-
ing the tardy pace at which cases are
disposed of by these courts.
At a time when an average of 1.65
lakh cases are pending before 24 high
courts, this verdict, which appears to be
a definitive step towards reducing pen-
dency, should have created a buzz.
So why did it not?
Justice AP Shah, former chief justice
of the Delhi High Court, explained to
India Legal: “Appointment of judicial
officers as additional judges in high
courts, particularly when the burden of
pending cases increases, is nothing new.
The Constitution, through Article 224,
specifically provides for appointment of
additional judges to tackle arrears in
high courts. However, the apex court
has now clarified that if due to bureau-
cratic delays, the appointment of a judi-
cial officer as an additional judge is
O
Easing the Burden
Inamovethatcouldincreasethenumberofjudgesinhighcourtsandreducependency,theapex
courthasruledthatretiredjudicialofficerscanbeappointedasjudgesinthesecourts
By Puneet Nicholas Yadav
LONG HAUL
Lawyers and litigants
discussing cases at a
Gurgaon district court
Anil Shakya

22 March 12, 2018
confirmed by the president after the said
officer has retired but is still below 62
years of age, such an appointment will
not be dismissed.”
The issue of bureaucratic delays hol-
ding up appointments of judges—per-
manent or additional—is, in fact, at the
core of the Supreme Court verdict.
LONG DELAYED
Consider the facts of the petition that
was filed before Justices Sikri and
Bhushan. The recommendation to
appoint Mathur and Jhala, then serving
judicial officers, as additional judges of
the Rajasthan High Court was made by
the state’s acting chief justice on Febru-
ary 18, 2016. However, the long winding
process that unfolds before a judge is
actually appointed ensured that these
two appointments were confirmed only
on May 12, 2017—almost 15 months
after they were recommended. The
process includes endorsement of the
recommended names by the chief minis-
ter, governor, the Supreme Court col-
legium, the ministry of law and justice
and then, finally, the president.
By the time the appointments were
confirmed, Mathur and Jhala had
retired, a ground that led to the litiga-
tion as Article 224 provides for only
serving judicial officers to be elevated as
additional judges. Unfortunately, these
delays also extend to filling vacancies for
permanent judges.
The Supreme Court lamented this
sorry state of affairs in its verdict, stat-
ing: “Enormous delay in appointment of
Judges of the high courts not only frus-
trate the purpose and object for which
Article 224 (1) was brought into the
Constitution but belies the hope and
trust of litigant...”
Recalling the top court’s earlier order
in the Advocates-on-Record Association
and Others v. Union of India case of
1993 with regard to filling vacancies for
judges, the bench said: “The process of
appointment must be initiated at least
one month prior to the date of an antici-
pated vacancy to ensure that the post is
filled up immediately... Unfortunately, it
still remains a far cry.”
EXECUTIVE ROLE
The bench also noted the problems that
such delays cause in dispensation of jus-
tice and fulfilling the primary objective
of Article 224—clearing pendency.
“Names are not forwarded by the High
Court in time... even much after the
vacancy has occurred. Once the names
are forwarded, they remain pending at
the Executive level for unduly long time,
before they are sent to the Collegium of
the Supreme Court... Even after the
clearance of the names by the Colle-
gium, these remain pending at the level
of the Executive. In the case of judicial
officers of subordinate judiciary... this
process of consuming so much time
adversely affects their tenure,” Justices
Sikri and Bhushan said in their verdict.
However, despite underlining the
hurdles of red tapism in appointment of
judges, the apex court resisted passing
suo motu directives for addressing
this malaise.
“It is a matter of common knowledge
that most of the judicial officers get a
chance for elevation when only few
years’ service is left. When unduly long
time is taken, even this lesser tenure
gets further reduced... It is unjust that
the fate of such persons remains in
limbo for indefinite periods...
“It is in the interest of all stakehold-
ers, including the judiciary, that definite
timelines are drawn for each stage of the
process, so that process of appointment
is accomplished within a time bound
manner. We need not say more,” the
Court said.
NO TIME-FRAME
Legal experts—former judges and senior
advocates—claim that the apex court
could have gone a little further in its
Supreme Court/Appointment of Judges
FormerCJIJusticeTSThakur(above),
whohadbeenmovedtotearsatapublic
functioninthepresenceofPMNarendra
Modiwhiletalkingaboutthehuge
backlogofcases,welcomedtheverdict.
Cases pending in various courts: 2.65 crore
Cases pending for over a decade: Over 22 lakh
Cases pending in high courts: Over 34.27 lakh
Approved strength of judges in 24 high courts: 1,079
Vacancies for judges in high courts: Over 375
Average no of cases pending in each of these high
courts: 1.65 lakh
Thelongwait...
UNI

verdict. A former judge said on condi-
tion of anonymity: “Instead of limiting
their judgment to just the case at hand,
they could have possibly set a time-
frame for clearing appointments of
judges... this would have qualified their
observations on the tardy appointment
process and served the purpose of
ensuring that high courts function as
per the full capacity of their sanctioned
strength of judges.”
With a staggering 2.65 crore cases
pending in various courts, more than 22
lakh for a period of over a decade, accor-
ding to the National Judicial Data Grid,
delays in dispensing justice have been a
challenge. And the situation has not
improved despite successive chief jus-
tices, prime ministers and law ministers
repeatedly vowing to correct the system.
Statistics from the National Judicial
Data Grid and law departments of vari-
ous state governments show that high
courts alone account for over 34.27 lakh
pending cases.
It is, therefore, pertinent to ask
whether the appointment of additional
judges who have a tenure of less than
two years is an effective mechanism to
tackle pendency.
Justice Shah, also a former Law
Commission chief, said: “I have always
felt that the appointment of additional
judges—especially those who have
retired as judicial officers—makes little
contribution in expediting disposal of
cases. The only purpose that such
appointments would serve is to give the
chief justices of high courts the power to
oblige certain individuals. It’s better to
bring in younger judges who can serve
longer and sensitise them to pendency.”
He added: “The problem with
appointing retired judicial officers as
judges is that the process is neither
transparent nor does it ensure that on
appointment, the individual will be able
to dispose cases fast. What if laggard
officers are promoted... There have been
additional judges who have served for
merely three to four months. When you
have lakhs of cases pending in high
courts, what major difference can an
additional judge make in such a short
span of time?”
VEXED PROBLEM
Former Chief Justice of India, Justice TS
Thakur, who had been famously moved
to tears at a public function in the pres-
ence of Prime Minister Narendra Modi
while talking about the huge backlog of
cases in various courts, welcomed the
verdict. He told India Legal: “The issue
of reducing pendency is a vexed one and
one of the main tools of addressing it is
by appointment of more judges, addi-
tional, ad hoc or permanent. When I
was the chief justice, I had discussed the
issue with chief ministers and chief jus-
tices of all states. We had decided that
besides additional judges, we will also
appoint retired judges who were over 62
years but were still sharp in their judi-
cial acumen as ad hoc judges so that the
judicature could benefit from their
expertise. Unfortunately, the problem is
that even if the judiciary expedites the
process of appointing judges, the gov-
ernment sits on these files. It is the
Executive that has to be more sensitive.”
Asked whether the Supreme Court
should have set a time-frame for clear-
ing names recommended for judgeship,
Justice Thakur said: “The issue of a
time-frame has already been dealt with
in the Memorandum of Procedure
(MoP). The government has unfortu-
nately been sitting on the revised MoP
for months. As long as the Executive
doesn’t cooperate with the judiciary in
reducing vacancies, cases will keep pil-
ing up and you will see more protests by
lawyers and litigants like the recent ones
in Calcutta and Karnataka High Courts.”
A majority of high courts is currently
working with less than two-thirds their
approved strength of judges. With over
375 vacancies for judges against the
approved strength of 1,079 across the
country’s 24 high courts, there is clearly
an urgent need for the Executive to
respond to the Supreme Court on the
vexed issues related to MoP.
The Supreme Court has spoken. It is
now for the Executive to do its part. In
the absence of a firm resolve to reduce
pendency, litigants will only get disen-
chanted with the judicatures, if they
already aren’t.
A FAR-SIGHTED ORDER The verdict by
Supreme Court judges Justices AK Sikri (left)
and Ashok Bhushan on the appointment of
judges was significant for tackling pendency

Courts/ NGT
24 March 12, 2018
HE National Green
Tribunal has been hit by a
severe staff shortage.
When Justice Swatanter
Kumar retired as chairper-
son of NGT on December
20, 2017, Justice Umesh Dattatraya
Salvi was made acting chairperson. He
retired on February 13, 2018, without
passing the baton to anyone else. There
are media reports that Justice Amitava
Roy, who superannuated as a judge of
the Supreme Court, is likely to be
appointed as chairperson.
This sorry state of affairs exposes the
severe staff shortage at the green panel.
Ironically, though the NGT has a sanc-
tioned strength of a maximum of 20
judicial members and a minimum of 20
expert members, the reality is that there
are only four judicial and two expert
members for all the five benches of
NGT, including the principal one
in Delhi.
SINGLE-JUDGE BENCHES
The staff shortage has forced the Tri-
bunal’s western region bench in Pune to
discontinue hearings after a Supreme
Court order on January 31 stated that
no single-judge bench is allowed to pre-
side over hearings at NGT.
“Let us tell you very candidly. We
cannot allow single-judge benches (at
NGT). Benches should consist of one
technical member, one judicial member
each,” a bench headed by Chief Justice
Dipak Misra and comprising Justices
AM Khanwilkar and DY Chandrachud
had said. They were acting on a petition
filed by the NGT Bar Association chal-
lenging the constitutional validity of the
NGT (Practices and Procedures)
Amendment Rules, 2017, which allowed
even a single-member bench to perform
judicial functions.
The situation is the same for NGT’s
Chennai bench which stopped hearings
from January 3, 2018, due to a shortage
of judicial and expert members.
The Kolkata bench, too, is reeling
from a big shortage of expert mem-
bers. This has left thousands of litigants
high and dry and delayed cases per-
taining to compensation to victims of
pollution and farmers, forest diver-
sion, power plants, mining, dams and
metro projects.
Instead of filing up the current
vacancies, the Ministry of Environment,
Forests and Climate Change (MoEF) on
December 1, 2017, brought into effect
the National Green Tribunal (Practices
and Procedure) Rules, which stated that
in special circumstances, the chairper-
son may appoint a single-member
bench. The rules go contrary to the very
spirit of the National Green Tribunal
Act, 2010, which clearly says that the
Headless body
StaffcrisishasledsomeofthebenchesoftheTribunal
discontinuinghearingsinenvironmentcases
By Punit Mishra
T
WITHOUT A LEADER
NGT has been functioning sans a chairperson
since Justice Swatanter Kumar (left) retired in
December 2017
Anil Shakya

bench should comprise at least one
expert and one judicial member.
COURTS TAKE NOTICE
Courts too have time and again remind-
ed the government to fill up the vacan-
cies. In September 2017, the Delhi High
Court bench of Acting Chief Justice Gita
Mittal and Justice C Hari Shankar had
asked the government to hasten the
process of appointments at NGT. It was
acting on a case filed by a Gaurav Bansal
who had sought the filling up of NGT’s
vacancies and asked the centre to file a
status report on the appointments.
The plea said: “Non-appointment of
Contact: editor@indialegallive.comSource: NGT Annual Report 2017
StatusoflawsuitsinNGTasonJuly31,2017
Bench Litigations filed Resolved Pending
Principal 9,659 8,080 1,579
Western 2,479 1,980 499
Eastern 3,232 2,767 465
Southern 3,482 2,926 556
Central 4,243 3,987 256
Total 23,095 19,740 3,355
NGT members also amounts to interfer-
ence in the independence of judiciary.
More so, the idea of having specialised
tribunals adjudicating upon matters of
particular fields would be defeated if the
tribunals are not given the manpower
and resources to diligently discharge
their functions and duties.” It added
that the NGT was heading towards
a premature death due to bureaucratic
red tape.
The apex court, too, had expressed
concern over the impending vacancies at
NGT. In December 2017, a Supreme
Court bench headed by Chief Justice of
India Dipak Misra had sought an
answer from the centre with regard to
the non-filling of vacancies in NGT’s
principal and zonal benches. The centre
then had informed the Lok Sabha that it
had constituted a selection-cum-search
committee for the vacant posts.
APPOINTMENT ISSUE
Speaking to India Legal, former Acting
Chief Justice of Gauhati High Court K
Sreedhar Rao reckoned that this should
be resolved at the earliest. “Appoint-
ments at NGT are overseen by the chair-
person and he recommends the names
of judges to be appointed to a panel of
Supreme Court judges and they pass on
the recommendations to the Chief
Justice who then finalises the names.
The vacancies are duly advertised on the
recommendations of the chairperson
and judges who are willing can apply,”
said Justice Rao. The process of
appointments is not cumbersome, he
added. When asked whether a single
member-bench should be allowed in
NGT, Justice Rao said there was no
harm as in many high courts, single
member-benches were operating.
Attempts by India Legal to contact
Justice Swantanter Kumar were futile.
Law experts rued the staff shortage in a
Tribunal which gave landmark judgments
such as holding the Art of Living respon-
sible for destroying the ecology of Yamuna
floodplains in Delhi and banning 10-year-
old diesel and 15-year-old petrol vehicles
and giving strict orders to control pollu-
tion in the Ganga and Yamuna.
Justice Swantanter Kumar himself
had noted that the green panel had ev-
olved as a globally acclaimed institution
over the years. “What satisfies me the
most is that the NGT has succeeded in
expanding environment consciousness.
Today the environment consciousness
and awareness created by the Tribunal is
its biggest contribution. We’ve been able
to give inexpensive and expeditious jus-
tice... cases are disposed of within the
same year or two years... The dispensa-
tion of environment justice at the tribu-
nal has been very consistent,” Justice
Kumar has said on his retirement.
STERLING ROLE
The NGT has passed strict orders on
controlling pollution in the Ganga (below)
UNI

Legal Eye/ Judiciary/ Women Judges
26 March 12, 2018
N its nearly seven decades of illus-
trious history, the Supreme Court
of India has seen a total of just six
women judges. Another lady-
judge-in-waiting, Indu Malhotra, is
seemingly on her way to becoming
the first woman advocate to get directly
elevated to the post. That will make the
total a paltry seven, one for each decade.
At this point, when the strength of
the Supreme Court (after the retirement
of Justice Amitava Roy on March 1) is
just 24, the presence of R Banumathi as
the only lady judge is an embarrassing
statistic (4.17 percent).
And if one considers that 229 judges
have been appointed to the top court
since 1950, the number six, at 2.62 per-
cent, is even more embarrassing. It took
39 years from its establishment for the
top court to get its first woman judge in
Justice Fathima Beevi (1989) and then,
seven years later, Justice Sujata V
Manohar was appointed.
The country has yet to see a female
Chief Justice of India. Justice Ruma Pal
was unlucky to miss out in 2000 when
she was being sworn in for a six-year
stint at the top court. She and Justice
YK Sabharwal were sworn in on the
same day. However, the communication
reached her late, hence her trip to Delhi
was delayed. This meant she was sworn
in a few hours after Justice Sabharwal.
That delayed communication robbed
Justice Pal of the opportunity to be the
Chief Justice.
Indeed, as per a late-2017 study, the
number of women judges across all
courts—subordinate, high courts and
the Supreme Court—is no more than 28
percent. This figure takes into account
17,160 judges in all courts put together.
This number shrinks sharply if only the
superior courts are considered.
In the 24 high courts of the country,
as per data released on February 1, 2018,
there were in all 77 lady judges in a total
judge population (high courts) of 719.
That gives a female representation of
10.86 percent (see bar chart for repre-
sentational detail).
This becomes pertinent on Women’s
Day (March 8), when the message of
inclusiveness goes out in all fields of
work. While Indian women are surging
ahead in all fields, the judicial system
seems to have stayed a laggard.
The presence of women in the judi-
cial system of India at large is not low.
Droves of women join the legal profes-
sion each year, specifically because the
profession promises an atmosphere of
physical security and genteel behaviour.
The number drops off sharply at a later
stage because of two things, according
to an expert. First, as per Indian tradi-
tion, they get married and quietly drop
out of the bar. Also, many of them move
into corporate positions—this is a grow-
ing trend, what with real estate firms
needing a large number of lawyers expe-
OntheeveofWomen’sDay,
withIndianwomensurging
aheadinallfields,thejudi-
ciaryseemstohavestayed
alaggard.Therearevarious
reasonsforthegendergap
By Sujit Bhar
I
The
Male
Club
Anil Shakya

rienced in civil and land related matters
as well as banks needing similar
employees to staff their loan sections.
Those left are either born into law fami-
lies or have had the opportunity of being
under a good senior guide, said the
expert.
The problem was dissected by Justice
VS Sirpurkar, a former Supreme Court
judge and a noted jurist, and his wife
Kumkum (also a senior lawyer) during a
discussion in an India Legal-APN (India
Legal’s sister concern) television show
recently. They harked back to the times
when they had started practice, before
returning to the present.
Kumkum described how she was dis-
couraged by her fellow colleagues when
she joined the bar in 1970, but she went
on to become the president of the same
bar. She also confirmed that many
women who join the law profession do
not take up litigation, hence are not
seen in courts. That means that their
numbers are small.
Justice Sirpurkar said the numbers
were much better at present and re-
called a function in Latur district court
where the number of lady judges was
more than the male judges. However,
the patriarchal mindset in the system
often comes in the way of women mov-
ing ahead, he said. He recalled one inci-
dent in which his fellow judges (male)
were upset with him for recommending
the names of two women judges to be
elevated to the high court. “The patriar-
chal system still prevails,” he said. “And
that’s why wherever I speak, I say that
more than the ladies, it is the men who
should be educated (in this respect).”
Going through the numbers (as
available from the latest data released)
of the different high courts of India, one
sees a trend. The largest number of
female judges (11) is with the Bombay
and Madras High Courts, with Delhi
being close behind with 10. Calcutta,
which espouses general open-minded-
ness as far as inclusiveness is concerned,
however, fell lower than Punjab and
Haryana’s eight, with just five women
judges. And Allahabad, the largest high
court of the country, with a total num-
ber of 105 judges, boasted only six
women judges.
It was also surprising to see that even
in Meghalaya, where matriarchy is the
rule in society, there was not a single
woman judge. That high court has a
total of two judges. Northern and north-
eastern states did not show much inclu-
siveness. Chhattisgarh, Himachal
Pradesh, Jammu and Kashmir,
Manipur, Tripura and Uttarakhand all
AMONG THE ACHIEVERS
The six female Supreme Court judges so far are—
(clockwise from top left) Justices Fathima Beevi,
Sujata Manohar, Ranjana Desai, Gyan Sudha Misra,
R Banumathi and Ruma Pal; (facing page) women
advocates on the Supreme Court lawns
Thecountryhasyettoseeafemalechief
justiceofIndia.JusticeRumaPalwas
unluckytomissoutin2000whenshewas
beingsworninforasix-yearstintatthetop
courtalongwithJusticeYKSabharwal.

Legal Eye/ Judiciary/ Women Judges
28 March 12, 2018
had zero female representation on the
bench. Sikkim had one, which is a third
of the total strength of its bench.
There has also been talk about the
composition of benches at the top court.
While the Nirbhaya gang-rape and mur-
der case had Justice Banumathi on the
bench, the triple talaq bench was de-
prived of representation from the distaff
side. The Aadhaar case bench also has
no female representation.
What has been extraordinary so far,
however, was the sheer fearlessness that
women judges have shown in the past.
Justice Pal, for example, was not only
known to be a completely fearless judge,
she also never baulked at speaking her
mind, whatever the situation. She was
one of the early voices for judicial
accountability and never hesitated to
criticise her own colleagues. She was a
prominent member of a three-judge col-
legium that refused extension to a
Madras high court judge who had cor-
ruption charges levelled against him.
In an off-court lecture she had criti-
cised the higher judiciary for its “seven
sins” which included arrogance, nepo-
tism, and turning a blind eye to a col-
league’s injudicious conduct.
Now, if this is any saving grace, the
situation is hardly any better in the
United Kingdom. According to a 2017
report, while women account for 61 per-
cent of law graduates in that country,
there are only 28 percent who land up
in leadership positions, or as private
practice partners. Numbers are rarely
better in the judicial system, with
England and Wales having the lowest
percentages of female judges in Europe.
Change is happening in India, but
the pace is slow. It is happening from
within, as well as from without. As BR
Ambedkar said: “I measure the progress
of a community by the degree of pro-
gress which women have achieved.” That
measure for society has to start within
the legal system.
Uttarakhand
Trupira
Sikkim
Rajasthan
Punjab & Haryana
Patna
Orissa
Meghalaya
Manipur
Madras
Madhya Pradesh
Kerala
Karnataka
Jharkhand
Jammu & Kashmir
Himahal Pradesh
Gujarat
Guwahati
Delhi
Chhattisgarh
Calcutta
Bombay
Andhra Pradesh
Allahabad
CompositionofHighCourtbenches
Source: Department of Justice, Ministry of Law and Justice
Data available as on February 1, 2015
High Courts are listed in no particular order
Female Judges Total Judges
0 20 40 60 80 100
6
3
11
5
34
73
105
33
10
42
1
19
4
10
11
1
19
3
26
5
39
3
37
11
60
34
13
0
0
0
0
3
0
0
0
1
1
19
2
32
8
56
2
38
3
2
9
2
Infographic: Rajender Kumar

Controversy/ Extrajudicial Killings
O or not to kill? There is no
such dilemma facing the
Uttar Pradesh police which
has orders to eliminate crimi-
nals to make the state a safer
place for the common man. The govern-
ment’s tough attitude towards criminals
is different from that of former chief
minister Akhilesh Yadav, under whose
rule criminals were virtually allowed a
free run of the state. In the 1,200
encounters carried out by the UP police
till February 15 this year, 40 criminals
have been killed. It works out to 3.6
criminals per day in the 11 months of
Yogi Adityanath’s rule.
Not all these killings fall in the defi-
nition of encounters where a criminal
attacks a police party to avoid arrest and
is shot in retaliatory firing, says criminal
lawyer IB Singh. There are allegations
that some of these encounters are fake.
Taking cognizance of one such fake
encounter in Noida, the National
Human Rights Commission (NHRC) in
notices to the state chief secretary and
the director-general of police ex-
pressed its displeasure over the police
settling scores with people in the name
of encounters.
The NHRC asked the officers to take
“appropriate action to sensitize police
personnel not to abuse their power to
harass innocent citizens”.
In an earlier notice prompted by a
statement by chief minister Adityanath
in which he said that “criminals will be
jailed or killed in encounters”, the
NHRC stated: “(Even) if the law and
order situation is grave, the state cannot
resort to such mechanism, which may
result in the extra-judicial killings of the
alleged criminals…”
Not only is the NHRC raising con-
cerns that the police in Uttar Pradesh
“are misusing their power in view of
endorsement by the higher-ups”, these
encounters also violate guidelines laid
down by the Supreme Court in PUCL vs
State of Maharashtra. One of the direc-
tions said: “An independent investiga-
tion into the incident/encounter shall be
conducted by the CID or police team of
another police station under the super-
vision of another police officer (at least a
level above the head of the police party
engaged in encounter).”
T
he Court also laid down the pro-
cedure for conducting the investi-
gation. It also said: “A magisterial
inquiry under Section 176 of the Code
must invariably be held in all cases of
death which occur in the case of police
firing and a report thereof must be sent
to judicial magistrate having jurisdiction
under Section 190 of the Code.”
The Court also banned out-of-turn
promotion or instant gallantry rewards
for police officers involved “soon after
the occurrence”. “It must be ensured
that such rewards are given/recom-
mended only when the gallantry of the
concerned officers is established
beyond doubt,” the Supreme Court’s
guidelines said.
It is not known how strictly the UP
police is adhering to these guidelines as
far as ordering an “independent investi-
gation” and a “magisterial inquiry” are
concerned. What is known, however, is
that the policy on “rewards” has been
made more lucrative, defying the
Supreme Court guidelines.
While the government has allowed
that district police chiefs can announce
rewards of up to `1 lakh for a team that
carries out an encounter, it has been
doubled for principal secretary/secretary
(home/police) from `2.5 lakh to `5 lakh
per arrested criminal. In the case of
superintendents of police, the reward
money has been raised from `50,000 to
`2.5 lakh per arrested criminal.
However, these guidelines and
notices are unlikely to rein in the trig-
ger-happy police in UP. Even if it means
killing some innocent people.
T
Inabrazendisplayofpower,UttarPradeshcopshavekilled
aboutfoursuspectsadaysinceYogiAdityanathtookover
By Atul Chandra
IS THIS THE WAY?
Policemen convicted in a 25-year-old fake
encounter case are taken to jail in Lucknow;
(above) Yogi Adityanath
Trigger-Happy

30 March 12, 2018
HE Tihar Jail complex in
west Delhi is not just the
largest in South Asia, it is
a veritable township with
high walls encircling its
many central jails. It is
so large that it has its own director gen-
eral of police and many other security
systems. It also seems one of the
most comfortable.
This correspondent had evidence of
the comfort level when he visited this
jail complex recently and was treated to
delicious paratha and paneer sabzi as he
spoke to officials there. He was told
the harsh winters of Delhi, the jail pro-
vides its inmates a roof, food, blankets,
security and even medical treatment.
As the mercury dips, many criminals
intentionally commit petty crimes and
surrender, ending up in Tihar where
they spend a few months in comfort,
get themselves treated and then
walk out as the weather improves.”
CORRECTIONAL HOME
This jail is also regarded as one of the
most effective correctional homes.
Though it is still called a jail, Comman-
dant Abhisekh Dixit terms it an ashram.
Focus/ Tihar Jail
Thejailcomplexseesatenpercentriseinoccupancyduringwintersasthefood,blanketsand
medicaltreatmentitprovidesareabigdrawforpettycriminals
By Sujit Bhar
that this was the staple food for the
inmates too.
“The jail does provide comfort,” said
Additional Inspector General (AIG) Raj
Kumar. “In fact, the population of this
jail complex sees a rise of about ten per-
cent every winter. It goes down again
when winter wanes.” He explains: “In
T
Foul-Weather Inmates
TiharJailisregardedasoneofthemost
effectivecorrectionalhomes.Thoughit
iscalledajail,CommandantAbhisekh
Dixittermsitanashram.Inmateslearnto
paintandgetvocationaltraining.
Photos: Anil Shakya

Incidentally, other jails in India are
slowly being renamed as correctional
homes. Inmates learn to paint, get
vocational training and venture into
various vocations.
Tihar jail is run by the Department
of Delhi Prisons, Government of Delhi,
and has nine central prisons, with
another one at Rohini Prison Complex.
Managing this mammoth jail is not easy
as it is very overcrowded.
While the sanctioned capacity of the
nine jails (plus the Rohini Complex) is
6,250, the total number of inmates, as
per data released in end-2015, was
14,183. This is 227 percent over the
sanctioned capacity. Only four percent
of the total inmates are women, while
sadly, 80 percent are undertrials.
The jail authorities can do little to
reduce this load, what with the sluggish
legal system leading to pendency of
cases. And though a large number of
inmates have already got bail, they can-
not leave as they have not been able to
furnish money for their bail bonds. The
Delhi High Court last year had lament-
ed this fact.
RECREATIONAL ACTIVITY
However, jail officials do try to make
the lives of these inmates meaningful
and have many people who provide
recreational activity inside the com-
pound. This correspondent was witness
to a musical soiree by three singers—
Mandakini Bora, Ankit Tiwari and
Dilbagh Singh—who achieved some
fame in Bollywood. Their reception on
the grounds of Central Jail No. 4 was
stupendous. DG Ajay Kashyap came
with his family and enjoyed the
spirited show.
The complex also has an art centre
where inmates have showed off their
artistic abilities. The paintings dis-
played were of reasonable calibre, but it
was poignant to see an installation with
shoe lasts (forma).
The centre had a shoe-making unit,
but due to the government’s new rules
on tanneries and animal hides, it was
shut down. This has deprived inmates
of another opportunity to use their tal-
ent to find employment outside.
Technically, it is possible for a jail
inmate to support his family from his
income in jail, said Raj Kumar. “The jail
manufactures and markets several
products such as cookies, bhajjis and
clothes and these are marketed from its
haat and elsewhere,” he said. “The
inmates acquire these skills from ex-
perts inside the factories and get paid
as per the Minimum Wages Act. They
even make furniture which is in good
demand outside. At the end of each
month, the inmates can transfer their
salaries to their home,” he said. “The
total annual turnover from our factories
is `60 crore.”
Inmates who have “behaved well” are
also rewarded and can become part-
time and unpaid security personnel,
supplementing the police inside. They
can be seen inside standing guard with
fibreglass canes.
The overall reform of Tihar jail was
brought about by super cop Kiran Bedi
when she headed the jail complex. It
has never been the same again. Seeing
the serene atmosphere inside, it is diffi-
cult for a commoner to visualise that
some of the most dreaded criminals are
lodged there. But then, there is no place
like Tihar.
TIME TO CHILL OUT
(Facing page) Singer Ankit Tiwari regaling the
prisoners at a musical soiree in Tihar; (above)
DG Ajay Kashyap came with his family and
enjoyed the spirited show
“InharshwintersofDelhi,Tiharprovides
aroof,food,blanketsandmedical
treatment.Manycriminalscommitpetty
crimesandsurrender,endingupinTihar,
wheretheyspendafewmonthsin
comfort,getthemselvestreatedandthen
walkoutastheweatherimproves.”
—RajKumar,AdditionalInspectorGeneral

States /Punjab/CM’s Son-in-law
32 March 12, 2018
OT many in Punjab
would have met or even
heard of Gurpal Singh,
son-in-law of Chief
Minister Capt Amarinder
Singh. A media-shy per-
son who maintained a distance from
politics and was rarely seen even at fam-
ily functions, Gurpal successfully avoid-
ed getting into any controversy. His
wife, Jai Inder Kaur, emerges from the
shadows once in a while to help her par-
ents during election campaigns, but she
too prefers anonymity.
There has never been any allegation
against them for taking advantage of
Capt Amarinder Singh’s clout. Very few
close relatives and family friends would
be even aware of the businesses run by
Gurpal Singh as he has never thrown his
weight around.
Thus, reports about the CBI register-
ing a case against Uttar Pradesh-based
Simbhaoli Sugars Ltd., one of the largest
sugar mills in the country, including its
deputy general manager, Gurpal Singh,
came as a shock for most people. The
reports also said that his residences
and offices were raided and searched by
the CBI.
LOAN DEFAULT
The company and its senior manage-
ment were charged for a bank loan
fraud of `97.85 crore and default
of `110 crore involving Oriental
Bank of Commerce (OBC) in
A Case of Vendetta Politics?
Inashockingdevelopment,CaptAmarinderSingh’sreticentkinhasfounda
CBIcaseslappedagainsthiminanNPAissue
By Vipin Pubby in Chandigarh
N
FIGHTING ALLEGATIONS
Chief Minister Capt Amarinder
Singh; The CBI has filed a case
against Simbhaoli Sugars Ltd
(above) whose deputy general
manager is the CM’s son-in-law
newsheads.in

2011. Incidentally, Capt Amarinder
Singh was not in power during
that period.
The case has been registered against
the chief managing director of the com-
pany, directors, chief executive officer,
chief financial officer and others under
Section 120-B, Section 420 and 409 of
the Indian Penal Code (IPC) and Sec
13(2) and 13(1)(d) of the Prevention of
Corruption Act, 1988 for causing a loss
of `109.08 crore to the bank.
As per the CBI chargesheet, OBC
sanctioned a loan of `148.59 crore after
Simbhaoli Sugars approached it with a
proposal for financing sugarcane farm-
ers. Under a tie-up arrangement, the
company was to supply the names of
beneficiary farmers along with details of
land holdings and sugarcane supplied
by them in the precious season. It was
also to supply Know Your Customer
(KYC) and other verified details of indi-
vidual farmers. It subsequently turned
out that improper and unverified infor-
mation was supplied to the Bank.
Under the agreement, the Bank dis-
bursed loans to 5,762 farmers totalling
`148.59 crore between January and
March 2012. The chargesheet said that
the loans (with an upper limit of `3
lakh) were disbursed through
individual loan accounts opened for
the beneficiaries.
It further said that the consolidated
amount of each disbursement was cred-
ited in an escrow account on the under-
taking given by the Company that
inputs like seed, fertilisers and farm
equipment had been supplied by it to
the farmers concerned.
The FIR has alleged that the compa-
ny diverted the funds from the escrow
account to some other accounts main-
tained by it, thus allegedly misappropri-
ating the money lent to it for a particu-
lar purpose.
The loan amount of `148.59 crore
was declared a Non-Performing Asset
(NPA) in March 2015 and was reported
for alleged fraud for an outstanding
amount of `97.85 crore in May that year.
Then, under multiple banking
arrangements, OBC sanctioned another
loan of `110 crore in January 2016 to
pay its outstanding loan of `97.85 crore.
The bank adjusted the total liability of
`119.24 crore towards the company by
way of deposit of the new corporate
loan. Significantly, the new loan was
also declared an NPA in November
2016, as per a CBI spokesman.
GURPAL’S SHARES
Gurpal Singh is described as one of the
directors of the company on its website
but the Bank in its complaint men-
tioned him as the deputy MD during the
period the alleged fraud took place. The
company website also states that Gurpal
Singh held 6.41 shares as of December
31, 2017.
Although Gurpal has remained silent
over the CBI FIR, Capt Amarinder
Singh has jumped to his defence. While
describing it as “political vendetta”, the
chief minister added another twist to
the story by claiming that his son-in-law
was, in fact, in litigation against the
company. He said Gurpal was a minority
shareholder with a mere 12.5 per cent
share in the company.
Capt Singh has said that he had filed
a case against the company for his rights
as a director and shareholder before the
National Company Law Tribunal as he
had been kept out of all major decisions
and the working of the company. He
said it was all a matter of record that the
alleged fraud was at the centre of a case
before the Debts Recovery Tribunal in a
recovery suit filed by the Bank. He
claimed it was settled between the com-
pany and the Bank and was recorded by
the Lucknow office of the Tribunal by
way of a consent order dated March
16, 2015.
In an interesting sidelight, the
Congress initially tweeted that the
Simbhaoli fraud was another bank scam
under the Modi government but then
quickly deleted it. The tweet said: “Taja
Ghotala! Modi Sarkar ki naak ke niche
khuleaam bank loot ka ek aur mamla
ujagar. (Another bank scam under Modi
regime’s nose unearthed).”
However, the BJP’s vigilant team
noticed it. This prompted BJP chief
Amit Shah to lash out at the Congress
and say: “Why delete this tweet high-
lighting the loot of Capt Amarinder’s
son-in-law....”
The case is likely to resonate during
the campaign for the next general
elections in 2019.
TAKEN ABACK
Gurpal Singh in
green turban at a
family event
www.facebook.com

Politics/ Karti Chidambaram
34 March 12, 2018
ITH the recent ar-
rest of Karti Chid-
ambaram, son of
former finance min-
ister P Chidam-
baram, the CBI
seems to be playing into the hands of its
political masters. Karti was arrested at
Chennai airport on February 28 as soon
as he deplaned from a London trip and
was questioned at the airport itself. Ar-
ound 8.45 am that day, he was arrested
and flown to Delhi, where a duty magis-
trate at Patiala House Court allowed the
CBI to hold him for a day. Karti then
spent more than eight hours—from 11
pm to 7.30am—at Safdarjung Hospital
for a medical examination.
On March 1, with Holi around the
corner, the CBI sleuths were desperate
to force Karti to spend the coming holi-
days in their custody. The Congress sent
in senior advocate and spokesperson
Abhisekh Manu Singhvi as Karti’s coun-
sel in the absence of senior advocate Ka-
pil Sibal, who was handling the case.
The CBI requisitioned Additional So-
licitor General Tushar Mehta’s service.
LARGER CONSPIRACY?
At the court of special CBI judge Sunil
Rana, Mehta asked for a 14-day police
remand for Karti. Judge Rana said in
his order: “I am of the view that the
police remand of accused Karti Chi-
dambaram is necessary to confront the
accused with the documents, and to
unearth the larger conspiracy and
role of other accused persons involved in
the case.”
Along with Karti, the Enforcement
Directorate (ED) also opposed the bail
of his chartered accountant Bhaskar
Raman. The agency said it wanted to sit
the two together for questioning. The
judge allowed the CBI to hold Karti
till March 6 when the Supreme Court
will hear his plea for anticipatory bail.
The bail case of Raman will come up
on March 7.
This arrest was not as sudden as it
seems. The apex court on February 23
had refused to stay ED summons to
Face-Saving Measure?
ThearrestofPChidambaram’ssonisbeingseenasanattemptbytheModigovernmentto
restoreitscredibilitywhichhasbeenhitinthewakeoftheNiravModiscam
By Sujit Bhar
W
TESTING TIME
The CBI brings Karti Chidambaram to Patiala
House Court in New Delhi after arrest
Photos: facebook

India Legal 12 March 2018

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