India Legal 13 August 2018

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
August 13, 2018
Curbing hate speech: Apex
court versus internet giants
Custodial Deaths:
Supreme Court’s thunder
NoHomeforMrBiswasTheSupremeCourt’sorderthattheNationalRegisterofCitizensbeupdatedinatime-boundmanner
hasstirredupahornet’snestinAssamwith40lakhpeoplerejectedandfamiliessplit.Thegrowing
tensionsandpoliticalinterferencecouldprovideavolatilemix
Villagers checking their names with an

UR cover story focuses this week on
what could be the biggest human
rights issue the nation has faced since
it gained Independence—the prospect
of deportation hanging like the Sword
of Damocles over the heads of some 40 lakh men,
women and children. Their names have failed to
appear on the first draft of Assam’s National Re-
gister of Citizens (NRC), rendering them, for the
moment, stateless persons. There are endless hor-
ror stories about the way in which this census was
carried out, its purpose being to weed out illegal
immigrants, mostly from Bangladesh. But in the
process, the babus and the politicians who con-
ducted this exercise seem ready to throw the baby
out with the bath water. Caught in the dragnet
are Biharis, Gujaratis, Bengalis—a substantial
number being Muslims—who, in case after docu-
mented case, find themselves or their wives, or
brothers, or children, or relatives left out in the
cold despite having proved their heritage and
domicile through requisite papers, family records
and evidence of land ownership over hundreds
of years.
It is of little solace to them that the Supreme
Court has taken note of this crisis, directing the
central and state government not to take any
coercive action on the basis of this draft as well as
placing before the bench a standard operating
procedure (SOP) to deal with claims, objections
and appeals from the afflicted to contest their
exclusion. Given the politically surcharged atmos-
phere in which the ruling BJP has been accused
by the opposition of manipulating this census in
order to deny citizenship to voters who are
opposed to the party, thereby suppressing their
participation in the electoral process, no quick
end is in near sight. The shock, emotional trau-
ma, insult to dignity of citizens, many of them
lawyers, doctors, teachers, ex-servicemen, is
immeasurable. The social tensions this continu-
ing crisis could cause in other states across India,
if it is viewed as a form of ethnic cleansing, could
be incalculable.
Even in the best-case scenario—assuming
there can ever be a perfect one—suppose that on
a review of this original list, 30 lakh people are
found to be legitimate Indian citizens. That still
leaves out a whopping 10 lakhs. Will they be
rounded up? Will they be deported to Bangladesh
which has already expressed its unwillingness to
take them back on the ground that this whole
matter is India’s internal problem? Will they be
put in detention camps in full view of the world’s
democracies still reeling under the impact of the
Syrian refugee crisis? Where would India find the
place to create more such detention camps?
The BJP government is already reluctantly
dealing with the Rohingya refugees, some 40,000
of whom are living in India in camps registered
with the UN refugee agency. Despite the centre’s
contention before the Supreme Court that the
Rohingya influx is a potential threat to national
and internal security, the Court directed the
appointment of nodal officers whom parents, rel-
atives, and guardians of Rohingyas could app-
roach if children were being denied benefits in
health and education. In October last year, the
Supreme Court said the Rohingya refugee prob-
lem was of a “great magnitude” and the state
would have to play a “big role” while dealing with
the contentious issue. The direction was passed
by a bench headed by Chief Justice Dipak Misra
after the Court was informed that children of
Rohingyas were being denied basic facilities.
Actually, the Court’s view is consistent with
India’s constitutional and international obliga-
tions to adhere to the cardinal tenets of human
rights—not just of citizens, but “persons”—within
India. The government’s eagerness to deport
40,000 Rohingya refugees has been contained
because the Supreme Court had agreed to hear a
petition contending that the proposed deporta-
tion is in violation of the fundamental rights
guaranteed under Article 14 and Article 21 of the
Constitution, which ensure the right to equality
and to life respectively. Even though India is not a
signatory to the Refugee Convention, it is a
INDIA ON TEST Inderjit Badhwar
Letter from the Editor
O
| INDIA LEGAL | August 13, 2018 3
Theproblemof
legalandillegal
immigrationinto
India,especially
WestBengal,
andAssam,
continuesunabated.
Itisapolitically
volatileissue.Butin
tacklingit,giventhe
humandimensions
ofthepredicament,
thegovernment’s
actionmustbe
temperedbylegal
dueprocess.

4 August 13, 2018
party to the International Covenant on Civil and
Political Rights, the Convention on the Elimi-
nation of all Forms of Discrimination against
Women, and the Convention on the Rights of the
Child. The deportation of the Rohingya refugees
would not be consistent with the spirit of Article
51(c) of the Constitution, which calls on India to
respect its international obligations.
S
o what exactly are the rights of illegal
aliens, non-citizens, refugees, or even for-
eigners charged by the police with crimes?
Do they have any protection under Indian laws?
Alok Prasanna Kumar, Senior Fellow at the Vidhi
Centre for Legal Policy, writes in The Hindu that
during the Constituent Assembly debates, BR
Ambedkar remarked that the provision relating
to citizenship in the Constitution caused the
Drafting Committee the most headache as
multiple drafts were worked on and rejected over
the years before the present Article 5 was
settled upon.
“For good reason too,” writes Kumar. “As
Vallabhbhai Patel had then said, India’s Consti-
tution-making process, and especially its citizen-
ship clause, was going to be scrutinised all over
the world. As scholar Niraja Gopal Jayal has ob-
served, this was probably because Indian nation-
alism during the freedom movement had not
attempted to define itself on exclusive racial or
ethnic bases.”
In fact, the Indian government is clearly on
record stating that non-citizens in India enjoy vir-
tually the same fundamental rights as citizens
barring voting and equal right to employment. In
the final report on the rights of non-citizens –
(Summary of Comments Received from U.N.
Member States to Special Rapporteur’s Ques-
tionnaire, U.N. Doc.E/CN.4/Sub.2/2003/23/Add.
4 (2003) India clarified:
“The following fundamental rights are avail-
able to non-citizens: right to equality; right of pro-
tection against punishment for retroactive laws,
double jeopardy and self-incrimination; right of
protection of life and liberty; right of protection
against arrest and detention in certain cases; pro-
hibition of employment of children in factories,
mines and hazardous employment; and right to
freedom of religion (Articles 14, 20, 21, 22 (1) and
(2), 24 and 25, respectively). The above rights are
accorded to non-citizens without exceptions.”
In a recent judgment, in response to the FIR
registered by the Maharashtra government
against three Ugandan citizens, including advisor
to the president of Uganda, which was quashed
by the Supreme Court, a vacation bench of Jus-
tices AK Patnaik and Ranjan Gogoi said: “Article
21 of the constitution [right to life and liberty]
applies to all citizens, whether Indian or foreign
nationals. Their right to liberty cannot be res-
trained by police due to a business dispute. Our
country gets a bad name because of the acts of
few police officers, and it is unfortunate that the
Mumbai Police, instead of protecting the rights of
these foreign nationals, filed an FIR against them
and the charges are baseless.”
In a previous article for India Legal during the
Syrian refugee crisis and US President Donald
Trump’s vicious campaign against refugees and
illegal immigrants, I noted that it is ironical that
in today’s world, which has been shaped by waves
upon waves of human migrations over the millen-
nia, “immigration” and “migrants” have become
dirty words in the minds of millions of people
across the globe. Thanks to the refugee crises
stemming from conflicts in the Arab world and
parts of Africa, outsiders pouring into different
countries are considered a dangerous, polluting
sub-human species unworthy of The Rights of
Man which civilised democracies have held to be
universal and valid at all times.
In characterising immigrants as a scourge,
Trumpism in America and the alt-right in Europe
have made the world forget that the act of mig-
rating across borders as well as the interests of
migrants—whether documented aliens or not—is
actually governed by domestic statutes and inter-
Theshock,
emotionaltrauma,
insulttodignityof
citizens,manyof
themlawyers,
doctors,teachers,
ex-servicemen,is
immeasurable.The
socialtensionsthis
continuingcrisis
couldcauseinother
states,ifitisviewed
asaformofethnic
cleansing,could
beincalculable.
Letter from the Editor
UNITED WE STAND
The All Bengal
Minority Youth
Federation protesting
against the NRC draft
in Kolkata
UNI

national conventions under the rule of law.
This is only a natural corollary to the march of
human civilisation which has been shaped cultur-
ally, linguistically, socially and ethnically by mig-
rants who made their way to distant lands due to
climate changes, pestilence, war, conquest, epi-
demics, persecution, forced deportations, ethnic
cleansing, economic hardship, political partitions
and the compulsions of technology.
Above all, the laws and conventions on refu-
gees and immigrants are also based on humani-
tarian principles founded on historical experi-
ence. For example, had the Jews not kept perpet-
ually migrating, starting with their expulsion by
the Babylonians and Assyrians, and then the
Romans and czars and Nazis, they would proba-
bly be extinct today. So would the Gypsies.
A
ctually, immigration is the true face of
globalisation. Hence, world covenants
such as UNESCO’s International
Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families
which came into force in July 2003. Its primary
objective is to protect migrant workers and their
families, a particularly vulnerable population,
from exploitation and the violation of their
human rights.
“The Convention seeks to draw the attention
of the international community to the dehuman-
ization of migrant workers and members of their
families, many of whom being deprived of their
basic human rights. Indeed, legislation imple-
menting other basic treaties in some States uti-
lizes terminology covering citizens and/or resi-
dents, de jura excluding many migrants, especial-
ly those in irregular situations.”
In this context, it is worth studying India’s
Law Commission’s 175th report (2000). It was in
response to former Home Minister LK Advani’s
concerns of millions of immigrants streaming
into India across its eastern borders. It was, and
still remains, a far more serious situation—a har-
binger of communal violence, overcrowding, cri-
minal activities and local job losses—than the
entry of immigrants from Syria and Somalia into
the US or Europe.
“The Commission is of the view that the prob-
lem of illegal migration from neighbouring coun-
tries has to be tackled seriously by providing a
machinery for effective and speedy detection of
illegal entrants. The function of determining
whether a person is an illegal entrant or not is
proposed to be entrusted to the Immigration Offi-
cers whose orders shall be appealable, to be heard
and decided by an Immigration Tribunal, man-
ned by a person who has been a District Judge or
an Additional District Judge.
“The matters shall be decided by them accord-
ing to the principles of natural justice. Besides,
facilitation centers are also proposed to be pro-
vided for detaining the foreigners pending the
determination of their status, and pending their
deportation. So far as the offences under the Act
are concerned, they are proposed to be tried by
the Immigration Court which would be a court of
District & Sessions Judge to be speciﬁed by the
appropriate government in each district.”
The problem of legal and illegal immigration
into India, especially West Bengal, and Assam,
continues unabated. It is a politically volatile
issue. But in tackling it, given the human dimen-
sions of the predicament, the government’s action
must be tempered by legal due process. As Kumar
concludes: “Seventy years (after Independence)
India’s approach to citizenship is once again
going to be scrutinised by the world. The subcon-
tinent has seen multiple, large-scale humanitari-
an crises erupt over questions of nationhood, citi-
zenship and identity. One hopes the Supreme
Court has the good sense not to spark off yet
another for no apparent reason.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
THORNY ISSUE
The centre’s
eagerness to deport
40,000 Rohingya
refugees from India
has been contained
by the Supreme Court
Anil Shakya

ContentsVOLUME XI ISSUE 39
AUGUST13,2018
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6 August 13, 2018
No House for Mr Biswas
The release of the National Register of Citizens has triggered panic and alarm with 40 lakh
declared stateless. A political battle has begun which threatens to polarise and divide
LEAD
14
Government Blinks First
Putting an end to an eight-month deadlock, the government has agreed to the Collegium’s
decision to elevate Uttarakhand High Court Chief Justice KM Joseph to the Supreme Court
SUPREMECOURT
19
Web of
Obscenity
Though the top court has approved
proposals to check online sexual
abuse of women and children, internet
giants have been cavalier about
implementing them
20

Skeleton in His Closet
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
| INDIA LEGAL | JAugust 13 2018 7
Cover Design:
ANTHONY LAWRENCE
Cover Photo:
UNI
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
International Briefs..........31
Media Watch ..................45
Satire ..............................50
FOCUS
Crowning Neglect
After being pulled up repeatedly by the apex court and NGT, the centre has finally
appointed those who will be responsible for the maintenance of the Taj Mahal
44
Protect, but How?
The Srikrishna Committee report on data privacy seems at variance
with the government’s Aadhaar scheme, relying heavily on assumptions
28
A Volte-Face for Votes
Relentless protests
by Dalit groups and
electoral compulsions
have forced the
centre to reverse the
dilution ordered by
the Supreme Court
in the SC/ST Act
32
An Achievable Goal
Cases such as triple talaq, Sabarimala and female genital mutilation
seem to suggest that India is moving towards a uniform civil code
34
POLITICS
River of Ill Health
The National Green Tribunal has
asked that if cigarette packets can
contain statutory warnings, why can
people not be alerted about the
effects of the Ganga’s polluted water
42
CORPORATE
LEGALEYE
Exit Auditors
With misdemeanours rising and the
government under pressure to tighten
the screws on them, many firms are
withdrawing from auditing the
accounts of clients
40
Conscience Keeper
A division bench summons the CBI director and reprimands him
over the agency’s tardy probe into the extrajudicial killings in Manipur
22
48Controversial
Control
The Inter Continental Association of
Lawyers has questioned provisions in
the Sikh Gurdwara Act giving control
of shrines to the Sikh Gurdwara
Parbandhak Committee
COURTS
Guardians,
Murderers
Setting a precedent, a CBI
court awards the death
sentence to two officers in
a case of custodial death
24
Just when all seems well for Kerala Chief Minister Pinarayi Vijayan, the CBI has dragged
him once again to court in the 21-year-old SNC-Lavalin corruption case
46
Degrees of Wrongdoing
A doctor couple was held guilty of criminal negligence for a patient’s
death and refused anticipatory bail, when it was only blameworthy neglect
26
VIP Squatter Camp
Despite orders to evict them, former chief ministers, often aided by the
government, find ways to stay on in their no-longer official residences
37
SPOTLIGHT
ENVIRONMENT
STATES

8 August 13, 2018
“
RINGSIDE
“...we see day in
and day out mobs
lynching people.
It’s a complete
failure of rule of
law. If a mob can
take law in its
own hands and
administer
somebody justice,
what kind of
rule of law is it.”
—Former CJI
TS Thakur
“The reservation
will become signifi-
cant only if it with-
stands constitu-
tional and legal
scrutiny.”
—Maharashtra CM
Devendra Fadnavis,
on his decision to
wait for the State
Backward Class
Commission report
on allotting quotas
for the Marathas
“My elder brother
Yogiji should
ensure that till
the time Kanwar
processions are
going on... there
should be
ban on use of
loudspeakers in the
masjids.”
—Former VHP
leader Sadhvi
Prachi in Mathura,
Uttar Pradesh
“I was the one who expressed the intent to
make Belagavi a second capital of
Karnataka. Nobody has done it in the
last 12 years.... I am for the development
of north Karnataka.”
—Karnataka CM HD Kumaraswamy on being
criticised for neglecting north Karnataka
“Who will become
PM is not impor-
tant.... The goal
is to defeat BJP.
We will discuss
about the PM (can-
didate) when the
time comes.”
—West Bengal CM
Mamata Banerjee
after meeting Sonia
Gandhi and Rahul
Gandhi in Delhi
“I would like a
video of Barrack 12,
to see where the
windows are…
shot maybe at mid-
day with no artifi-
cial lighting.”
—British judge
Emma Arbuthnot,
hearing the Vijay
Mallya extradition
case, referring to the
cell at Arthur Road
Jail in Mumbai
“If they are caught,
give them a few
slaps and punches,
tie them to a tree
and inform
the police.”
—BJP MLA Gyan
Dev Ahuja on treat-
ment of cow smug-
glers once they
are caught
“If a Congress
leader justifies the
appointment...in
his opinion the
verdict passed by
Justice Goel was
also justified....
Rahul Gandhi
should clear
his stand....”
—LJP leader Chirag
Paswan after former
Law Minister Ash-
wani Kumar sup-
ported AK Goel's
appointment as
NGT chief

10 August 13, 2018
An inside track of
happenings in Lutyens’ Delhi
India’s superspy agency, Research &
Analysis Wing (R&AW), has a proud tradi-
tion of staying out of domestic politics. Its
work and intelligence gathering are rated
among the best in the world and the CIA
and MI5 often look to it for tips and intelli-
gence sharing on drugs, terrorism and
related subjects. The information India can
gather because of its association with
ASEAN, BRICS, BIMSTEC, CHOGM is
considered invaluable.
But there is growing concern in intelli-
gence circles over professional R&AW offi-
cers, many of them recruited from the top
ranks of the Indian Police Service and the
Armed Services, having to play second
fiddle to the PMO and several faceless
“security advisers”.
Last week, for the first time in its histo-
ry, four joint secretary-level officers were
sacked for what was termed “non-perfor-
mance”. What is most galling to insiders
is that R&AW professionals, who are
trained in gathering and analysing sensi-
tive information from abroad, are now hav-
ing to adopt the double role of keeping an
eye on NRIs and influential Indians settled
abroad in order to gauge their political
and financial leanings and dealings.
The Indian diaspora has played a sig-
nificant and influential role in drumming up
support and resources for Indian leaders
abroad as well as with their business and
family dealings in India. Prime Minister
Modi has been their poster boy and he
has recognised the importance of playing
to their gallery on his foreign trips. But that
unified support, as exhibited in his
Madison Garden “rock star performance”
in 2014, seems to have plummeted as
appears from the demonstrations against
him during his London visit. So now his
security advisers in Delhi want to know
who is helping whom in these foreign
countries and to what end. R&AW has the
burden of finding out.
RAW DEAL
Arun Jaitley, who has been recovering
after a kidney transplant, will be back at
work next week—August 8, to be precise.
The question being asked is: back at work
where? According to the website of the
Prime Minister’s Office, Piyush Goyal is
finance minister, and Arun Jaitley is
“Minister without Portfolio”. However, the
finance ministry’s website declares Jaitley
as the finance minister. It says Goyal was
“temporarily assigned” additional charge
of the finance ministry on May 14 (the day
Jaitley underwent the kidney transplant).
A communiqué from the president's
office had said: “During the period of
indisposition of Shri Arun Jaitley, minister,
the portfolios of minister of finance and
minister of corporate affairs held by him
be temporarily assigned to Shri Piyush
Goyal, in addition to his existing portfo-
lios.” It may be recalled that the bed-rid-
den Jaitley had raised eyebrows when he
announced the resignation of chief eco-
nomic adviser Arvind Subramanian
through a Facebook post.
Ever since his medical confinement,
the tussle between Goyal and Jaitley had
become serious, with Jaitley using social
media to comment on matters to do with
the finance ministry while Goyal was run-
ning the ministry. It reached a point where
every meeting to be attended by finance
ministry mandarins saw two representa-
tives, one sent by Jaitley, the other by
Goyal.
WILL THE REAL
FM STAND UP?
No governor has played a
more active role in the affairs
of the state than Jammu &
Kashmir’s NN Vohra. However,
his stint as governor since
2008 is now nearing an end.
He is 82 years old and has
expressed his unwillingness to
continue, now that the state is
under Governor’s Rule and his
involvement too has expanded
manifold. The buzz is that the
government has agreed to let
him go and prepared a list of
six names, mainly former
bureaucrats who have dealt
extensively with J&K and
retired generals who have
served in the Valley, to choose
his replacement.
None will match the experi-
ence of Vohra who will be
sorely missed. His vast experi-
ence as an IAS officer—he
served as home secretary,
defence secretary and princi-
pal secretary to the PM (IK
Gujral)—was further intensified
vis-a-vis J&K when, after retire-
ment, he was appointed
India’s Special Representative
for carrying out the Jammu
and Kashmir Dialogue in 2003,
a post he held till 2008 when
he was made governor.
Sources say he decided to
quit because the Modi govern-
ment was keen on forming a
new government in the state
by engineering defections from
the PDP, its former partner.
Vohra is looking forward to
his other role—as president of
the India International Centre
in Delhi.
CHANGE AT
THE TOP

Delhi
Durbar
TAILPIECE
The musical chairs over the selection
of the country’s first ombudsman
or Lokpal, continues. The search panel
to finalise the name/names is yet to be
elected, but already the buzz is that the
Modi government has zeroed in on
Justice Jagdish Singh Khehar, the for-
mer chief justice of India. Earlier, the
name of the current CJI, Dipak Misra,
was doing the rounds.
Khehar was the first CJI from
the Sikh community and served in
that position for a relatively brief
period, from January to August 2017,
before Misra took over. He, however,
had a reputation for probity and
presided over some landmark judg-
ments relating to triple talaq and
the right to privacy.
However, his name can only be
announced by the six-member search
panel that is yet to be constituted.
The search for a Lokpal has
been on since 2013 and this is the
first time that some
credible names are
being floated.
Under the Act, the
Lokpal will consist
of a chairperson
and eight other
members, of whom
50 percent will be
judicial members
and the rest will be
selected from
among
SC/ST/OBCs,
minorities and
women.
MUSICAL CHAIRS
There is considerable hand-wringing in
South Block over China’s decision to
gift a navy frigate to Sri Lanka, India’s
sensitively positioned neighbour, which
New Delhi has always considered its
sphere of influence. Sri Lanka’s huge
Tamil population and the traditional ties
between this ethnic minority and its
counterpart in Tamil Nadu has played a
major role in that. Now, Senior Colonel
Xu Jianwei, an official at the Chinese
Embassy in Colombo, has stated: “As a
good and true friend, over the past
decades, China has provided powerful
support to the social-economic devel-
opment and military and defence con-
struction of Sri Lanka." The rekindling of
Sino-Sri Lankan military ties is seen as
another setback for Prime Minister
Modi’s “neighbourhood” foreign diplo-
macy following the Dragon’s spreading
wings in Nepal, the Maldives, Pakistan,
and even Bangladesh. New Delhi has
nobody to blame but its own foreign
policy mandarins. When Mahinda
Rajapaksa took over as president, his
first foreign visit in 2005 was to Delhi
where he was virtually ignored despite
his offers to open up Sri Lankan waters
to India for oil exploration as well as to
develop the port of Humbantota. As
India dallied, the Chinese stepped in.
WHEN MAO COMES
MARCHING IN
It is rightly said that the road to power
in Delhi goes via Uttar Pradesh. Had it
not been for the 72 seats of the total
80 Lok Sabha seats that it won in the
state, the BJP-led NDA would have
been nowhere near the massive major-
ity that it bagged in the last general
election. With the opposition parties
warming to Rahul Gandhi’s announce-
ment last week that his party was not
averse to a non-Congress leader
becoming the prime minister if that
would help in dethroning Narendra
Modi, there is palpable consternation
in the ruling camp.
The recent by-elections across the
country and particularly in UP have
shown that a united
opposition could actual-
ly steamroll the BJP. With
signals coming from
most opposition camps
indicating a joint cam-
paign, well-placed
sources say Modi will
have no option but to
focus increasingly on
the country’s largest
state in the few months
left before the election. It
has already begun, it would seem.
The last fortnight saw Modi make
as many as seven trips to the state,
addressing sugarcane growers in
Shahjahanpur, farmers in Azamgarh,
and his constituents in Varanasi
besides attending a mega function in
the state capital to preside over the
launch of multi-projects worth over
`60,000 crore. It was at the last func-
tion, where he was flanked by some of
the titans of Indian industry, that he
made his now famous statement that
“corporate leaders are no thieves and I
see nothing wrong in meeting them or
being publicly seen with them”.
Rubbing shoulders with the rich to
seek votes in the name of the poor is
the name of the game.
POLL JITTERS
Rahul Gandhi’s new aggressiveness
and his hug and wink strategy has clear-
ly pitched him against Narendra Modi
as equals. His strategy leading up to
2019 is to take on Modi at every chance
he gets. He now even has a new name
for Modi—“Mr 56”—a reference to the
latter’s chest circumference. All his
recent tweets refer to Modi as “Mr 56”!

The Supreme Court
ruled that court man-
agers, who are “profes-
sionally qualified”, will
help Principal District and
Sessions Judges at the
district level to handle the
administrative side in courts. This will
enable district judges to concentrate on
the disposal of cases, thus toning up the
district judicial system, the Court obser-
ved. It added that court managers sho-
uld preferably have an
MBA degree. It also
asked the state govern-
ments to regularise the
services of those al-
ready working in that
capacity. The Court
ruled that managers will point out pitfalls
in the way courts are managed. The
apex court’s ruling came while it was
hearing a plea on the poor infrastructure
of subordinate courts.
Courts
12 August 13, 2018
—Compiled by India Legal Team
Aadhaar not needed for
maternity benefit: Court
The Delhi High Court restrained the Aam
Aadmi Party government from demand-
ing documents, such as Aadhaar and bank
details of eligible beneficiaries under
Janani Suraksha Yojana, a maternity
scheme for pregnant and lactating women.
The decision came on a PIL challenging
the Delhi government's decision to insist
on these documents to avail benefits of the
scheme. The Court said that most benefi-
ciaries would be homemakers without
bank accounts or Aadhaar cards, so the
government cannot insist on such docu-
ments. It added that the scheme does not
require these documents to be presented.
It also directed the government to widely
publicise the scheme.
The Delhi High Court extended till
September 17 its interim order granting
protection from arrest to the in-laws of
Anissia Batra, a flight attendant who alleged-
ly committed suicide on July 13. The Court
had earlier granted protection to Sushma
Singhvi and RS Singhvi, parents of Anissia’s
husband Mayank Singhvi, till August 2. The
couple had moved the high court after a trial
court refused to give them anticipatory bail.
After her death, Anissia’s parents filed a
complaint accusing her husband and in-laws
of having a role in her death. They added
that Anissia was a victim of domestic abuse
at the hands of her husband. While Mayank
is currently in judicial custody, his parents
claim they had no role in any dispute
between him and Anissia.
Relief to in-laws in
flight attendant suicide
The Supreme Court made it clear that
no visible rendition of any rape vic-
tim, not even their morphed photo-
graphs, can be published or used by
any media. The issue came to light
when the media used some photo-
graphs (unclear) of rape victims at a
Muzaffarpur shelter in Bihar. The Court
had taken suo motu cognisance of the
rape and sexual abuse of nearly 30
girls at the home, following a report
given last year by the Tata Institute of
Social Sciences. The insti-
tute, which had been assi-
gned to audit all shelter
homes in the state, had
given a damning report on
this to the state government
in April 2017. The issue
came to the Court’s attention
when a resident of the state
sent a letter about the goings
on. The abuse is said to
have gone on for several
years. The Court has restrained the
media from conducting on-camera
interviews with victims or showing their
images, stating that the victims should
not be forced to relive the trauma.
“Everyone wants to be the first one to
get the news. There will be 10 cameras
that will come,” Justice Madan Lokur
said. “Will the interviewer or the person
holding the camera appear in the wit-
ness box? Never.”
SC bans rape victims’ photos
Hire court managers with MBA: SC
The apex court observed that Section
497 of the IPC, which penalises men
for adultery, is in violation of the Article
14 of the constitution. “There is sanctity
associated with marriage, but the way it
(Section 497) is framed runs contrary to
Article 14” the Court said, adding that,
however, adultery could still be grounds
for divorce. Section 497 penalises a
man for having sexual intercourse with a
woman knowing that she is married and
does not have her husband’s consent.
The Court was hearing a plea seeking
that the Section must also hold the
woman guilty for the act and make her
liable for punishment. It, however, ruled
that it would only focus on whether the
Section was unconstitutional.
SC moves to decriminalise adultery

Lead/ National Register 0f Citizens, Assam
14 August 13, 2018
HE updating of the National
Register of Citizens (NRC),
on instructions from the
Supreme Court monitoring
committee, has opened a
Pandora’s Box in Assam, and
could have far-reaching repercussions
across the country. The genie is out in
the open and putting it back is impossi-
ble. The political slugfest began as soon
as it was evident that four million
names have been left out of the draft
list published on July 30. Despite
T
PromptedbytheSupremeCourt,thereleaseoftheNational
RegisterofCitizenshastriggeredalarmandpanicas40lakh
peoplefindthemselvestaggedasnowherepeople,withsome
membersoffamiliesclassifiedascitizenswhileothershave
beenleftout.Itisanexplosiveissuewithportentsforthe
restofIndiaasapoliticalbattlebeginsandthreatensto
becomeanotherpolarisingfractureinthe2019elections
By Seema Guha
State of Panic
UNI

repeated assurances by the centre and
the BJP-led government in Assam that
the current draft is not cast in stone
and names would be approved as soon
as documents are provided, there is
widescale panic.
The situation in Assam has led to
fears of violence and human rights vio-
lation. “Assam has long sought to pre-
serve its ethnic identity, but rendering
millions of people stateless is not the
answer,” said Meenakshi Ganguly, South
Asia director at Human Rights Watch.
“Indian authorities need to move swiftly
to ensure that the rights of Muslims
and other vulnerable communities in
Assam are protected from statelessness,”
she added.
While political leaders are hoping to
use the foreigner issue for electoral gain,
the Bengali-speaking Muslim immi-
grants are desperate. Assurances that
the list can be revised if documents are
provided are of little use to the majority
of the poor, illiterate peasants as they
have no papers to prove either their
Indian or Bangladeshi citizenship. So
what happens to them? Neither the
Modi government nor the state or even
the Supreme Court, which directed the
entire exercise, has a clue as to what
happens with the foreigners after they
are detected. Bangladesh will only take
back those who can prove they are from
there. The government possibly did not
think through to the end. Confusion also
reigns on whether their names will
remain on the state’s electoral rolls.
The entire issue, after all, was trig-
gered by the sudden hike in the number
of voters during a bypoll in the
UPPING THE ANTE
(Facing page) Members of All Religious
Communities of West Bengal protesting
against the NRC in Kolkata; villagers showing
acknowledgement receipts of NRC registration
at Gumi village in Kamrup district of Assam
Dr Kamakhya Chakraborty, 90, Tezpur
I have misplaced my ARN number (this
is a registration number that is given to
check whether one’s name is on the
list). I am a 90-year-old man. I am not
able to find my ARN number and can’t
even check whether my name is there
on the registry or not. There are lots of
people like me. There is nobody to
help me. There is a help-line which has
been given in case the ARN number
gets misplaced, but nobody is taking
the calls. The phone just keeps ringing.
I am getting pushed around. I don’t
know whether my name figures in the
NRC or not. There is no way to know
whether the government is recognising
me as a citizen or not.
I have voted from the first general
election to the last Assam elections. I
went to jail during the freedom strug-
gle. I am from the first batch of Assam
Medical College. And today, I am run-
ning around to prove my identity. I live
in Tezpur with my wife. Both my chil-
dren are out. My son is abroad and my
daughter is in Delhi. Who should I turn
to for help? I am very stressed. My
younger brother’s name is also missing
from the registry. I have asked senior
officers in the Assam Police Service but
they too said they cannot help me.
There is fear in the mind of every
Assamese. Look at the hardships the
citizens are facing because of some
clerical mistakes.
It is a technical matter which has to
be handled. This is some goof-up at
some official level. My neighbour holds
a small private job. Both he and his
wife are Bengalis. While their names
are there in the registry, the names of
their kids aren’t. He has to take leave
to get their names in. He doesn’t even
know whom to ask.
There are lots of grievances against
the government. They have given very
little time for redressal. What about
people who are not in their homes dur-
ing this period? I am now in Delhi with
my daughter. I cannot reach Assam
before the final date. This kind of dead-
line is causing more panic.
—As told to Lilly Paul
“Iamverystressed”
“Assamhaslongsoughttopreserveits
ethnicidentity,butrenderingmillionsof
peoplestatelessisnottheanswer.”
—MeenakshiGanguly,SouthAsiadirector
atHumanRightsWatch
UNI

The Assam registry has left out Azmal
Haque, a retired army officer who
served the Army for three decades from
1986. He is a resident of Chaygaon area
in Assam’s Kamrup district. He retired
as a junior commissioned officer in
2016. Azmal, his younger brother, his
daughter and his son did not appear on
the list. This exclusion is after Azmal
submitted all the documents to the
NRC, apart from the prior verifications
which were done before taking him into
the Army.
"I'm hurt. This is what I had to see
after serving the nation for three de-
cades. I have no words to say. This is
very unfortunate if the system runs like
this. If it can happen to a retired Army
officer what will be the fate of common
people,” said Haque.
Tayeba Ummi Nazrin, 28, is a resi-
dent of Chaygaon and a research schol-
ar in Gauhati University. The NRC draft
has left her out along with her brothers
and father. “I am worried because I
might be required to attend pro-
grammes and conferences abroad as
part of my research. I hope this confu-
sion over NRC does not cause any
problem in procuring a visa. We have
all required documents—voters’ lists,
land records. We hope our whole family
will get through in the next round,”
said Nazrin.
Monowara Begum, Cancer patient
“I am extremely upset. My health is
getting worse. If I don’t get justice my
children will not be considered citizens
of India, if my name doesn’t appear in
the NRC list then their names will not
appear either.”
—Compiled by Lilly Paul
Ali Ahmed, who was a nominee, was
escorted to the election office to file her
nomination by KPS Gill, then an IGP of
the Assam cadre. In the violence a stu-
dent was killed. That led to widespread
pro-tests, with the public joining the
movement led by the students.
T
he agitation continued till the
Assam Accord was signed in 1985
by the AASU, the Rajiv Gandhi
government at the centre and the Assam
government. It was decided that all
those who entered Assam before mid-
night of March 24, 1971, would be con-
sidered Indian nationals and anyone
who entered after that date would be
considered a foreigner. The date was
chosen because on March 25, 1971, the
Pakistani Army started operations in
Dhaka, marking the start of the
Bangladesh War. Updating the NRC
was part of the agreement. Yet the ac-
cord remained on paper till the Sup-
reme Court moved in and ordered the
Assam government to begin the process
of updating the NRC.
Updating the NRC was a stupen-
dous task. The process is filled with
flaws. For one, documentation in India
has always been tardy. To prove citizen-
ship, people need to trace their ances-
try. How many people have documents
showing the family tree? Land pattas of
grandfathers and great grandfathers?
Names on the 1951 NRC which itself is
a basic document? Proof that families
entered before 1971 is hard to come by
when many of those people may have
died. In many cases, even educated
middle-class families are finding it hard
to collect all documents. The plight of
the poor and illiterate is much worse.
Many prominent people of the state
find their names missing from the
July 30 draft list. Topping the list is the
family members of former president
Fakhruddin Ali Ahmed. Several promi-
nent and ordinary Assamese and
Bengali Hindus are not in the list.
Several people serving in the Army and
paramilitary forces have been left out.
There are clearly serious discrepancies.
16 August 13, 2018
Mangaldoi parliamentary constituency
in 1978. The suspicion was that illegal
im-migrants made up most of the new
na-mes. This led to the demand by the
All Assam Students Union that the elec-
tions should take place only after the
names of alleged foreigners were expun-
ged from the voters’ list.
The next year, 1979, when national
elections were on, the students organ-
ised protests to ensure that no candidate
could file nominations unless names of
foreigners were deleted from the rolls.
The state government, taking it as a law
and order problem, broke up protests
with a strong hand. In Barpeta con-
stituency of lower Assam, Abida Begum,
the wife of late President Fakhruddin
Some of the tragic stories reported
in the national and international
media from all over Assam
Tragediescompounded
NOT YOUR TERRITORY
(Above and right) The TMC team that landed in Silchar to
meet those left out of the NRC in Assam was confined by
the security forces to the airport and sent back
Twitter

indigenous tribal population have not
been able to provide the documents.
The Assamese Hindus, who are now
fighting for their identity, had come to
the state from northern parts of India,
with most of the Brahmins and upper
castes claiming their origin from the
ancient state of Kannauj. Tribals from
Karbi Anglong and North Cachar areas,
Hajongs, and adivasis as well as Bodos
spread across the state would finally all
be accommodated. Many tribals from
the Udalgiri area, having converted to
Christianity, have moved out and settled
elsewhere in the state. The Christian
converts have changed their names, so
the legacy data of their forefathers don’t
match. They are also out of the
draft NRC.
Many Bengali Hindus who came
into Assam because of persecution in
former East Pakistan are again not on
the list. In the Cachar area of the Barak
valley, there was largescale migration of
Hindus in 1965. Many of their names
were missing from subsequent voters’
lists, and many did not possess the lega-
cy papers needed for verification. A
large number of Bengali Hindus living
in the bustling Silchar city have been
left out, while most Bengali Muslims in
neighbouring Hailakandi have the
required documents. “For all these
The Assam government has clarified
that Aadhaar and ration cards as well as
land deeds approved by panchayats and
stamped by gazetted officers will be ta-
ken into account, according to Prateek
Hajela, the man heading the NRC revi-
sion exercise. With the eyes of the na-
tion focused on the NRC there will be
less room for manipulation.
A
ccording to Hyder Hussain, a top
political analyst of Assam, who
has followed the NRC process
closely, the corrected list will drastically
reduce the numbers of alleged foreign-
ers. “Of the 40,07,707 out of the draft
list, most will get accommodated. On
final count, the figure of actual foreign
nationals will be around 10 lakhs. Of
course, these are ballpoint calculations,
there could be thousands more or less
but I am certain the figure will not
exceed 10 lakh.”
His reasoning is that many of the
names forwarded to various state gov-
ernments for verification did not get any
response from the officials in West
Bengal and Rajasthan. One lakh and
50,000 names were sent for verification
to West Bengal, a lesser number to
Rajasthan (the trading community of
Assam is mainly from there). Both
Kolkata and Jaipur will now pay much
more attention to the verification , con-
sidering the serious consequences.
Again within Assam, many of the
The 1951 National Register of
Citizens was being updated in the
state since 2015 following a Supreme
Court order and presented on July 30,
2018. The apex court has held that the
NRC prepared for the state of Assam
was a draft and hence cannot be basis
for any action. “In this regard, the Court
would like to observe that what has
been published is only the Complete
Draft. The NRC being a draft cannot be
the basis of any action by any authori-
ty,” observed the bench of Justices
Ranjan Gogoi and RF Nariman.
This order was passed by the
Supreme Court because of exclusion
of approximately 40 lakh people from
the draft list. The Court heard Prateek
Hajela, the coordinator for NRS Assam,
who submitted that the total number of
persons included is 289,83,677, leav-
ing out 40,07,707 as ineligible for inclu-
sion. The state coordinator also said
that the list would be available for ins-
pection till August 7, and from August
8 onwards the process of filing of
claims and objections would be started
and the receipt of claims and objec-
tions would start from August 30 and
would end on September 28. The attor-
ney general submitted that the con-
cerned ministry was in the process of
finalising the modalities for dealing with
claims and objections and once the
modalities were finalised, it would be
placed before the Court in mid-August.
The Court asked for a report
regarding the standard operating pro-
cedure to deal with the claims and
objections to be placed before it and
has ordered that Hajela be associated
with the exercise at all times. “We per-
mit the concerned ministry of the Union
government to frame modalities and
place it before the Court for dealing
with claims and objections so as to
enable publication of final NRC.” The
Court said that further orders regarding
steps to be taken will be issued on
August 16.
—Deepankar Malviya
HopeAndPray
BATTLE OVER FOREIGNERS
(Above, L-R) BJP president Amit Shah and
West Bengal CM Mamata Banerjee

18 August 13, 2018
KK Venugopal told a two-member
bench of the Supreme Court comprising
Justices Gogoi and Nariman, soon after
the publication of the July 30 NRC list:
“You do whatever you like. At this
moment, we would not like to comment.
You do it, then we will examine it. Our
silence is not a symbol of agreement nor
assurance.” The bench asked the centre
to lay down the standard operating pro-
cedure for the NRC and submit it for
approval. The next hearing is scheduled
for August 11.
The tensions are, however, palpable.
One grouse is that the BJP government
has already declared that Hindus from
Bangladesh will not be regarded as for-
eigners. This has led to tension bet-
ween Bengali Hindus and the majority
Assamese. There is some anger against
the Modi government over this issue. In
the past, there have been instances of
attacks on Bengali speakers. The Assa-
mese-Bengali tension had been forgot-
ten since concerns about Bangladeshi
influx had subsumed all other issues.
But it has begun to simmer ever since
the Modi government decided to treat
all Hindu refugees as citizens. How this
pans out in the coming days will have to
be watched. Unless handled with care, it
may affect the BJP’s chances in the
national election.
In fact, the NRC has become a polit-
ical hot potato as national parties hurl
abuse at each other over the presence of
alleged Bangladeshi Muslim immi-
grants in not just Assam but spread
over West Bengal and other states. It
will be a major issue in the national
election slated for next year. A
Trinamool Congress team that landed
in Silchar, the main town in the Barak
valley, to meet people whose names are
not in the NRC draft was confined to
the airport and sent back by a flight the
next morning by the BJP-led govern-
ment of Sarbananda Sonowal.
The foreigners issue has become a
fierce battle between the BJP, which
has set its eyes on West Bengal, and
Mamata Banerjee’s Trinamool Cong-
ress. The issue, and the presence of a
large number of alleged Muslim immi-
grants is now going to be used as a
political tool. With emotions running
high, Banerjee has warned of “civil war”
over the unfair deletion of names of
genuine Indian citizens from the NRC.
A mid-level BJP leader called for shoot-
ing dead of Muslim immigrants and
Rohingyas from Myanmar.
BJP national president Amit Shah is
planning to hold a public rally in Kol-
kata on August 11. He will certainly
play to the gallery and talk about the
presence of large numbers of alleged
Bangladeshi immigrants in the state.
The BJP is already talking of beginning
the process of updating the West Ben-
gal NRC. Banerjee is working at getting
together all anti-BJP opposition on a
platform of harassment and unfair
treatment of Bengali-speaking Muslims
in Assam. While the political battle
escalates, nobody knows what will be
the fate of the hapless people who have
been declared foreigners.
reasons, I am confident that the num-
bers would be much more reasonable
once all these anomalies are corrected,’’
says Hussain.
M
any have blamed much of the
problems on judicial over-
reach. But the fact remains
that the Assamese have for decades agi-
tated against what they believe are de-
mographic changes which would make
Assam a Muslim-majority state like
Kashmir. All kinds of figures were ban-
died about. None of the political parties
including the Asom Gana Parishad,
made up of student leaders who led the
agitation in the late 1970s, did much to
allay these fears. The Congress did not
want to rock the boat as it helped them
to win elections. The updating of the
NRC has at least begun the process with
Justices Ranjan Gogoi and Rohinton
Fali Nariman overseeing the work.
“Thanks to the Supreme Court, at least a
start has been made, however faulty the
process, it can be rectified,” said SP Bar-
ooah, a retired manager of a tea garden.
The centre is mulling getting the bio-
metric details of the over 40 lakh people
left out in the draft NRC. This is to allay
fears that those declared foreigners in
Assam will escape to another state
under false identities. Attorney General
COUNTER CHALLENGE
A BJP Mahila Morcha rally in Kolkata
demanding the NRC exercise in West Bengal
UNI

Supreme Court/ Judges’ Appointments
IGHT months after the
Supreme Court Collegium
and the government engaged
in an intense battle of one-
upmanship, the Executive
blinked. Late last week, the
government agreed to the elevation of
Uttarakhand High Court Chief Justice
KM Joseph to the top court, somewhat
easing tension between the two.
Justice Joseph’s name was sent by
the Collegium, headed by Chief Justice
of India Dipak Misra, to the govern-
ment on January 10, along with the rec-
ommendation for elevation of senior
advocate Indu Malhotra to the top
court. While agreeing to the elevation
of Malhotra, the government vehement-
ly objected in Justice Joseph’s case, say-
ing that there were others senior to him
in line and that the Kerala High Court
(Justice Joseph’s parent high court) was
anyway well represented in the top
court. While the government also
brought in excuses such as why wasn’t
the Collegium open to SC/ST judges,
the basic reason for this objection was
clear for all to see.
It was Justice Joseph who had
annulled the centre-imposed President’s
Rule in Uttarakhand in 2016, ordering
a floor test that defeated the interven-
tionist objectives of the NDA adminis-
tration. They were voted out. The BJP
bided its time till this recommendation
came through.
The centre’s objection created quite
some heartburn among the Judiciary
and the Supreme Court did not want to
backtrack. The Collegium met several
times to decide on a plan of action and
in the end, sent back the same recom-
mendations. Though there are no set
rules in this, the tradition is that when
the Collegium sends back a recommen-
dation, the government accedes.
The Executive took its time, but it
did step aside, easing tension.
The government also okayed the ele-
vation of Madras High Court Chief
Justice Indira Banerjee and Orissa High
Court Chief Justice Vineet Saran to the
Supreme Court.
There were smaller battles within
this in which the Collegium seems to
have compromised. In the case of the
elevation of Calcutta High Court’s
Justice Aniruddha Bose as Chief Justice
of the Delhi High Court, for example,
the government’s objection had the
effect of the Collegium changing Justice
Bose’s new role to the chief justiceship
of the Jharkhand High Court. A lower
profile high court was okay with the
government. In Justice Bose’s case, too,
his apparent lack of seniority was cited
as a reason.
Several of the Collegium’s decisions
have met with stiff resistance from the
government, and the issue had become
so intense at one point that former Chief
Justice of India TS Thakur had broken
down in public. The Court’s contention
is that the government's objections have
been the primary reason for skyrocket-
ing pendency in all courts of the land. It
is not just the Supreme Court or high
courts that the current government has
meddled in. Its strong-arm tactics have
been visible all through different levels
of the Judiciary. This starts at selecting
judges and extends to monitoring each
of his/her postings. At every stage of the
Judiciary—district judges, special
judges, sessions judges, high court
judges and Supreme Court judges—the
government wants people who are
apparently pliable.
The unique position that the
Constitution had placed the Judiciary
in has been tampered with time and
again by the Executive. It is to be hoped
that the green signal to Justice KM
Joseph is not just a small breather.
Falling in Line
E
Afterstonewallingontheissueformonths,thegovernment
finallyaccedestotheCollegium’srecommendationfor
elevationoftheUttarakhandchiefjusticetotheapexcourt
By Sujit Bhar
END OF IMPASSE
Uttarakhand HC CJ KM Joseph’s long wait
for elevation to the SC ended with the
government’s formal announcement on Aug 3
rediff.com

Supreme Court/ Tracking Videos of Sexual Violence
20 August 13, 2018
OPELESSLY irresponsible.”
“Everything is money.” “Are
you mouthpieces of your
clients or citizens of this
country?” “You are trying to
make a fool of everybody.”
“You can’t put the people of this country
to ransom.” “We are not at your mercy.”
“Your government is doing nothing, you
just have meeting after meeting, while
people are getting lynched; nobody
seems to be bothered.” “Let it happen, as
long as it doesn’t happen to me, it is all
right seems to be your attitude.”
These words of Justice Madan B
Lokur of the Supreme Court on July 27
are, to many regulars in his Court, noth-
ing more than clichés. But for those
seeking to understand the anguish of
the judge uttering these words, they
underline the exasperation of the judici-
ary in bringing about much-needed reg-
ulation of the internet and social media
which are playing havoc with India’s
social and moral fabric. The sense of
urgency and the deadlines are under-
standable as Justice Lokur will be retir-
ing on December 30 this year, before
which he wants to ensure that his judi-
cial initiatives bear some results.
On February 18, 2015, a bench com-
prising Justices Lokur and UU Lalit,
popularly known as the Social Justice
Policing
Obscenity
Online
ThoughtheCourthasokayedproposals
tocheckonlinesexualabuseofwomen
andchildren,internetgiantshavebeen
casualinimplementingthem
By Venkatasubramanian
On March 22, 2017, the Supreme Court
passed an order constituting a commit-
tee to assist it on the feasibility of ensur-
ing that videos of sexual violence were
not available for circulation. The stake-
holders included representatives of
Facebook, Google, Yahoo, Microsoft, and
WhatsApp. These were its proposals:
Search engines should expand the list
of key words which may possibly be
used by a user to search for child
pornography (text message shorthand for
CP) content. The words should also be in
Indian languages.
They should be expanded to cover
RGR content (text message shorthand for
rape and gang rape).
Mechanism should be created for rep-
orting and maintenance of data in India.
There is a need to create a Central
Reporting Mechanism (India’s hotline
portal), as in other countries like the US,
with NCMEC. Any person/organisation
should be able to report any CP and
RGR content in India with ease with a
provision for anonymous reporting.
A hash bank for RGR content should
be created (under the charge and control
of the ministry of home affairs,
Government of India, or through authori-
ties or NGOs authorised by it).
The centre is to formulate parameters
for identifying RGR content to ensure
expeditious identification and removal.
A reporting mechanism must be creat-
ed at a central level, preferably with the
CBI, to also receive information of any
CP/RGR content being circulated in
social media or any other platform over
the internet.
The cell will regularly engage with rep-
resented companies and the NCMEC for
upgradation of technology, technical sup-
port, and so on.
Technology similar to Project Arachnid,
a web crawler developed by the
Canadian Centre for Child Protection,
should be availed of for identifying India-
based CP and RGR content. (Project
Arachnid helped reduce online availability
of child sexual abuse material. It detects
images and videos based on confirmed
digital fingerprints of illegal content.
When such material is identified, a notice
is sent to the hosting provider to request
its immediate removal.)
Content hosting platforms, search
engines and the centre are to work
together in formulating a process for
identifying and initiating a take-down
Tighteningthenoose
H
“
Anil Shakya

bench, received a letter from Prajwala,
an NGO, about videos of sexual violence
being circulated in abundance. After
hearing the counsel for the parties, the
Supreme Court passed an order on
March 22, 2017, constituting a commit-
tee to assist and advise it on the feasibil-
ity of ensuring that videos depicting
rape, gangrape and child pornography
(CP) were not available for circulation.
This was to protect the identity and rep-
utation of the victims and also because
circulation of such videos cannot be in
public interest.
A 20-member committee comprising
various stakeholders was constituted
under the chairmanship of Dr Ajay Ku-
mar, then additional secretary, ministry
of electronics and information techno-
logy. The stakeholders included repre-
sentatives of Facebook, Google, Yahoo,
Microsoft, and WhatsApp. The commit-
tee commenced its proceedings on April
5 last year and met on a day-to-day
basis. It sought the advice of experts,
who made presentations. Susie
Hargreaves, CEO, and Fred Langford,
deputy CEO, Internet Watch Foun-
dation, UK; Professor Venkatesh Babu,
IISc, Bengaluru; John Shehan, National
Center for Missing and Exploited
Children, US; and Atul Kabra, security
expert, FireEye, Bengaluru, were some of
the experts it consulted. It also received
inputs from experts in other countries.
After a threadbare discussion, a com-
prehensive report was submitted to the
Court by the committee in two volumes.
All the parties before the Committee
agreed on certain recommendations
based on proposals made during the
deliberations. These proposals were
quite elaborate (see box).
On January 8, the Court noted in its
order that an online cyber crime report-
ing portal had been developed with the
access name www.cyberpolice.gov.in and
that this was undergoing a security
audit and testing and trial. The Court
expected that it would be operational
soon. “Certain features will be made
operational by January 10, 2018, and
offered to public such as anonymous
reporting of CP/rape/gang rape content
and online registration of cyber com-
plaints which will be forwarded to the
concerned state/UT police authorities
for appropriate action,” the Court said,
quoting the centre’s submission.
Certain other features were likely to
be made operational by February 10 on
providing status update of complaints to
registered complainants, portal access to
other stakeholders willing to register for
providing inputs on CP/rape/gangrape
content and maintaining the hashtag of
obscene content, the Court noted in its
order. It also said that Facebook was
developing or has developed a new
“proactive detection” technology for real
time screening through artificial intelli-
gence. Facebook was asked to file an
affidavit in this regard.
On April 16, the Court required Ya-
hoo, Facebook Ireland, Facebook India,
Google India, Google Inc., Microsoft
and WhatsApp to let it know the
progress made pursuant to the recom-
mendations accepted by these entities as
mentioned in the report. None of these
entities filed anything in this regard nor
were they ready with any response.
For much of 2017-18, the hearings in
the case were held in-camera by the
Court in deference to the pleas of the
parties, as they were debating the pro-
posals submitted and agreed to by them.
Since July, the hearings are once again
open to the public so that it acts as a
check on the parties, who continue to
defy the Court-imposed deadlines for
compliance with its orders.
On July 27, the inaction of these
internet giants so irked the Court that it
told them that for each day of non-com-
pliance, it proposed to impose a fine of
`5 lakh on them individually. The Court
had already imposed a fine of `1 lakh on
each of them for delay in filing affi-
davits. This forced the companies to
assure the bench that the proposals
would be complied with in letter and
spirit within 30 days.
“We expect the ministry of home
affairs of the Government of India to
ensure compliance including any steps
that are required to be taken by the
Government of India,” the bench under-
lined in its order. Hearing of the case
will resume on August 27 and all eyes
will be on the Court.
of all CP/RGR content.
A sub-project to be created within
Project CCPWC (Cyber Crime Prevention
against Women and Children) for elimi-
nating CP/RGR to undertake the follow-
ing: An online portal proposed to provide
for anonymous reporting of CP/RGR; a
separate hotline for reporting identified
CP/RGR content; centre to authorise
specific authority for receiving com-
plaints of CP/RGR online and for initiat-
ing action within specified timelines;
authority to also have specified process-
es for intimating police stations for regis-
tration of FIR and prosecutions; a team
to immediately verify such tips and issue
directions to service providers for
removal of such content; it is recom-
mended that this be handled by the CBI
and not by the local police; centre to cre-
ate tipper list of NGOs.
Creation of infrastructure/ training/
awareness building: centre to form regu-
lations for reporting of identified CP/RGR
imagery online. Internet companies
should provide technical support and
assist in capacity building of the relevant
agencies, including law enforcement and
NGOs through a series of training on
online crime investigation; centre to allo-
cate funds for this purpose;
centre/CHPs/search engines to create
awareness for judiciary, prosecutors and
law enforcement authorities; centre to set
up processes for expeditious initiation of
prosecution against users for identified
CP/RGR content; identify rogue sites by
an independent agency and block these
sites. To prevent the circulation of such
imagery, the government can block any
additional sites/ applications if they do
not remove such content on their own.

Supreme Court/ Manipur Fake Encounters
22 August 13, 2018
“There are 15 murderers roaming
around Manipur, what will happen
to society?”
—Justice Madan B Lokur in the
Supreme Court on July 30, 2018
T the receiving end of the
honourable judge’s ire
was Central Bureau of
Investigation (CBI)
Director Alok Verma who
had been summoned by
the Court and questioned about the
agency’s delay in filing chargesheets in
cases of murder of innocent civilians,
criminal conspiracy, and not bothering
to make arrests. “If somebody commits
rape, what is there to recover? So you
will allow him to roam free?” Justice
Lokur asked, urging the CBI chief to
understand the impact the delay would
have on society.
The case pertains to the over 1,500
alleged extrajudicial killings in Manipur
between 1979 and 2012. In 2012, an
association called Extra Judicial
Execution Victim Families Association
had filed a petition in this regard and
alleged that no action had been taken
against the people involved.
However, close on the heels of the
Supreme Court rap, on August 2, the
CBI for the first time booked an Army
officer, Major Vijay Singh Balhara, in
connection with the killing of a 12-year-
old boy in Imphal West in 2009.
The Supreme Court had appointed a
Commission which filed its report in
2013. The report stated, among other
things, that security forces, based on
their intelligence inputs and without
riding the law of the land.
In 2015, when the centre made the
same argument, the Court said: “Now
it’s like you kill 10 people, pay compen-
sation and the matter ends.”
A division bench of Justices Madan
Director’s Special
A
TheapexcourtsummonstheCBIchiefandgiveshimatongue-lashingovertheagency’s
tardyprogressregardingextrajudicialkillingsinthenortheasternstate
By Vinay Vats
RIGHTFUL PLEA
Protesters in Imphal demanding a probe
into fake encounter cases; (right) CBI
Director Alok Verma
verifying them, used to resort to indis-
criminate firing which resulted in killing
of innocents.
In the past, the Court had more than
once come down heavily on the centre
for its inept handling of the case. Once,
when the centre’s counsel claimed that
compensation had been paid to the fam-
ilies of the victims—in a way, an admis-
sion of wrongdoing—the Court shot
back that compensation was hardly the
preferred avenue, or else “all heinous
crimes” would be settled that way, over-
UNI

filing the chargesheet in the alleged
fake encounter deaths despite the
Court’s orders.
Additional Solicitor General
Maninder Singh had apprised the Court
that the delay on the part of the CBI was
not intentional or deliberate, and the
agency was in the process of vetting the
chargesheet which had been prepared.
To this, Justice Lokur observed: “Tell
your people to quit if they cannot do this
job. If they cannot do it, tell them to
quit.” The bench strongly showed its dis-
satisfaction with the delay and called the
SIT probe a game of “snakes and lad-
ders”, “going up and down…up and
down… and we are tired of this”.
One reason cited for the delay is the
multi-layer scrutiny, which is a process
followed by CBI investigations. It was
submitted that the layers could be ended
with the permission of the CBI director.
The bench then suggested that all the
officials part of this multi-layer scrutiny
discuss and clear the cases immediately.
However, advocate Menaka Guruswamy,
amicus curiae in the case, drew the
Court’s attention to Section 19 of the
CBI manual which had no mention of a
multi-layer setup, as the CBI claimed.
The CBI director then accepted the
fact that the multi-layer scrutiny setup
is an internal arrangement and said that
they would decrease the layers. The
B Lokur and UU Lalit had asked the
CBI to file the final reports in four
alleged fake encounter cases by the
Indian Army, Assam Rifles and the
police in Manipur, earlier in July. The
Supreme Court in 2017 had directed the
CBI to set up a Special Investigating
Team (SIT) of five officers to look into
the case. The bench slammed the SIT
appointed by the CBI for delay in prob-
ing the case. The bench ordered the CBI
director to be personally present on July
30, 2018, to explain the delay in
bench took cognisance of the fact that
the official in-charge of the SIT was a
DIG-rank official who had already been
promoted to IG. The CBI director
apprised the bench that initially
52 cases were shortlisted for investiga-
tion, but the number reduced to 41 with
86 victims, as some cases had been
found unfit.
After hearing the arguments, the
bench gave directions to the CBI,
including reducing the multi-layered
scrutiny to only two layers, and said the
entire exercise had to be carried out
within three weeks.
The CBI director assured the bench
that five more chargesheets would be
filed before August 1. The Court then
listed the matter for August 20, 2018
and told Verma to be personally present
once again on that day to give updates
on the steps taken by the agency.
Although the apex court made many
observations and criticised the CBI,
summoning of the agency chief was a
clear signal that it meant business.
What remains to be seen now is how the
agency carries the probe further and
subjects the perpetrators of such brutal-
ity to justice.
A
n Imphal court in May allowed
Manipur Chief Minister N Biren
Singh’s son, Ajay Singh, an
additional six months to deposit a
fine of `10,50,000 imposed on him
after he was convicted of homicide.
Along with the fine, the court sen-
tenced Ajay to rigorous imprisonment
of five years for killing Irom Roger in a
road rage incident on March 20,
2011. The 21-year-old victim died
after receiving a gunshot wound near
Imphal airport.
Ajay and four friends were arrest-
ed the day the victim died. While the
four were discharged, Ajay’s father
handed him over to the police. Biren
was then a minister in Okram Ibobi
Singh’s government, which trans-
ferred the case to the Central Bureau
of Investigation (CBI). A sessions
court in January 2017 found Ajay
guilty, imposing on him the fine:
`10,00,000 to go to the victim’s father
and `50,000 to the state exchequer.
However, in a petition Ajay said
the payment was delayed because
he planned to appeal the verdict
before a higher court. The CBI,
meanwhile, sought a further two
years’ imprisonment for Ajay for fail-
ing to deposit the fine within the stip-
ulated six-month period.
—Kuwar Singh
Son’ssins
Court gives additional time to
Manipur CM’s son to pay fine
in homicide case
AdivisionbenchofJusticesMadanBLokur(left)andUULalittoldtheCBIchiefto
expeditethechargesheet.JusticeLokurobserved:“Tellyourpeopletoquitifthey
cannotdothisjob....andwearetiredofthis.”

Courts/ Kerala/ Custodial Death Verdict
24 August 13, 2018
ULY 25, 2018, will go down as a
watershed date in the history of
custodial killings in India. For
the first time ever, a court hand-
ed a death sentence in a case of
custodial death to two police-
men. But what is perhaps more signifi-
cant for Kerala is that the Thiruvanan-
thapuram CBI court’s order comes at a
time when the state’s police force con-
tinues to be in the firing line regarding
custodial torture and highhandedness.
It might have taken 15 years for jus-
tice to arrive in Udayakumar’s case but
when the CBI special judge, Justice J
Nazar, pronounced the death sentence,
he was sending a strong message to per-
haps not only the Kerala police but also
those in uniform across the country.
“Here the brutal and dastardly murder
was committed by police personnel who
are duty bound to protect the life and
property of the citizens and if they ven-
ture into these kinds of crimes the safety
of the public would be in a knot,” the
judgment read.
The state police is, however, tight-
lipped and has refused to comment
when asked if this was the much-needed
wake-up call for the force. But sources
in the top brass of the department in
the state said that most of the force is
shocked at the death sentence verdict as
many had expected a sentence of life
imprisonment. Kerala Director General
of Police Lokanath Behera put on a
brave face. “You cannot judge the entire
force based on one or two incidents,”
he said.
Senior lawyers in the state are of the
firm opinion that this judgment is not
only a landmark for future cases of cus-
todial death in India but will also act as
the much-needed deterrent for such
erring policemen. “Unlike ordinary mur-
ders or mob lynching, where the perpe-
trator might not understand the legality
of the verdict in all its seriousness, here
since the guilty are closer to the law like
no other and since they have got the
maximum punishment, I think a very
strong message would go across the po-
lice force at least in Kerala to start with,”
senior criminal lawyer V Ajakumar told
India Legal.
On September 27, 2005, 25-year-old
Udayakumar and his friend, Suresh Ku-
mar, were picked up by two policemen,
K Jithukumar and SV Sreekumar, of the
Fort Police Station in Thiruvanantha-
puram under what the police called
“suspicious circumstances” at around 2
pm. They were picked up from a park
and taken to the police station, where,
according to the policemen, `4,200 was
found in Udayakumar’s possession. The
police claimed that the money was sto-
len by him but could not substantiate
their charge. Udayakumar wanted his
money back and refused to leave the sta-
tion without it.
According to the evidence presented
J
HELD GUILTY
Policemen
K Jithukumar (right)
and SV Sreekumar
Forthefirsttimeever,acourthasawardedthedeathsentence
totwopolicemen,sendingastrongmessagetotheforcethat
theirdutyistosafeguardandnotendangerpublicsafety
By Naveen Nair in Thiruvananthapuram
Justice at Last

Udayakumar’s mother filed in the
Kerala High Court, could unearth the
chain of events that led to his death.
What opened up the case was the dis-
crepancy in the recording of the time of
Udayakumar’s arrest. While the police
fudged it to 10 pm on September 27,
2005, the Crime Branch had put it as 8
pm which forced the CBI to track down
Udayakumar’s friend, Suresh, who had
by then turned hostile. Suresh finally
confirmed it as 2 pm which corroborat-
ed the corrections found in the docu-
ments at the police station which the
police had made to their advantage. A
separate case of theft had also been reg-
istered against Udayakumar, which the
prosecution proved was done after he
died—an attempt by the policemen to
justify his custody as initially they had
no case against him.
By illegally detaining an innocent
man, the policemen at the Fort Police
Station had not only violated all norms
set by the Supreme Court pertaining to
arresting an individual but had also
by the prosecution, Udayakumar was
given the money by his mother, Prabha-
vathi Amma, to buy new clothes. The
two friends reached the city, but since a
political rally was going on, they opted
to rest in the park for some time. And
then the police came calling. What fol-
lowed, as per the prosecution’s version,
was custodial torture of the most inhu-
man kind for one-and-a-half hours.
U
dayakumar was soon separated
from his friend and put inside
the cell where he was tied to a
metallic cot and beaten first with a lathi
and then by a galvanised iron pipe used
for plumbing purposes. The post-mor-
tem report clearly put the cause of his
death as the blows and the body rolling
that he received with the pipe mainly on
his thighs and other parts of the body
which crushed his muscles, leading to
shock, haemorrhage and death. Udaya-
kumar’s body had 22 wounds of griev-
ous nature. By 10.30 pm, he was found
motionless in the cell and declared
brought dead at the Government
Medical College Hospital. What fol-
lowed was a mad rush by policemen at
the station to cover their tracks.
The CBI, which came into the pic-
ture following a petition by
been engaged in destruction of evidence
to cover up a crime their colleagues had
committed.
Following the CBI takeover in 2008,
half-a-dozen policemen and police-
women who were on duty at the Fort
Police Station turned approvers after
cases were filed against them, too. This
proved crucial in the case.
But all this would not have been pos-
sible without the brave fight that Udaya-
kumar’s aged mother put up for her son
at the doorstep of the judiciary. It was
her persistent claim—that her son was
innocent, money was given to him by
her and she did not believe she would
get justice from the state police—that
finally had the Kerala High Court asking
the CBI to take over.
“They killed my son during Onam
(Kerala’s state festival) 13 years ago.
Now they will spend their Onam behind
bars. God has heard my plea because
they killed an innocent man,’’ a teary-
eyed Prabhavathi told mediapersons
moments after the court’s verdict came
out. The court has also handed three
years of imprisonment to retired super-
intendents of police TK Haridas and EK
Sabu and Dy SP Ajith Kumar for
destruction of evidence.
While the judiciary has set the record
straight, activists in the state are not
ready to believe that this judgment
could turn the tide. “Justice certainly
seems to have been done in this case
although most of us don’t support capi-
tal punishment. But whether this will
help to stop custodial torture and death
is very difficult to say.
What is needed is strong will from
the top level of the state police for
such things to get eradicated forever,’’
said PA Pouran, a well-known human
rights activist.“Evenlifeimprisonmentwouldbe
completelyinadequateandwouldnot
meettheendofjustice.”
—CBISpecialCourtjudgeJNazar
PERSISTENCE PAYS
Udayakumar's mother, Prabhavathi (left), put
up a brave fight to wrest justice for her son

Courts/ Prescription Sans Diagnosis
26 August 13, 2018
HE Bombay High Court re-
cently held that prescription
without diagnosis, resulting
in death, amounts to crimi-
nal negligence. In Deepa
Sanjeev Pawaskar & Anr ver-
sus the State of Maharashtra, the Court
dismissed the anticipatory bail plea of
two doctors involved in such a case.
In June 2017, the complainant,
Dnyanada, visited Dr Sanjiv Pawaskar
who diagnosed her as pregnant. Dnya-
nada used to visit the hospital regularly
for check-up. On February 5, 2018, she
was admitted to Dr Pawaskar’s hospital
then advised the chemist on which med-
icines to give them.
By evening, Dnyanada had developed
fever and was admitted to hospital. The
staff informed her that doctors were not
available there. She asked whether she
should be taken to another hospital. She
was told that was not necessary.
She was treated by two nurses on the
instructions of Dr Deepa. At 10.15 pm,
one Dr Girish Karmarkar saw the
patient and prescribed a tablet, Trazine
H. But by 3.45 am, the tip of Dnyanada’s
nose and her lips had turned black. At
4 am, the staff called Dr Pawaskar, who
A Case of Culpable Neglect
T
TheBombayHighCourtrefusedtograntanticipatorybailtoadoctorcouple,sayingtheywere
guiltyofcriminalnegligenceinthedeathofapatient
By Dr KK Aggarwal
with labour pains and the next day
delivered a female baby via caesarean.
She was discharged on February 9. No
post-operative instructions were given.
However, on February 10, she started
vomiting. Dr Deepa, wife of Dr Sanjiv
Pawaskar, asked Dnyanada’s family to
phone her from a chemist shop and she
Inanestablishedpatient-doctor
relationship,telephonicconsultation
isn’tnegligence.Doctorsshould
challengethisjudgmentorthenational
telemedicineprogrammewillfail.

tered on telephonic instructions. Plus,
there was no resident medical officer
and no alternative arrangement was
made. Dr Karmarkar was called by the
staff when the condition of the patient
started deteriorating.
Section 304A, IPC, says that whoever
causes the death of any person by com-
mitting any rash or negligent act not
amounting to culpable homicide, shall
be punished with imprisonment for a
term which may extend to two years, or
with fine, or with both.
However, Section 304 says: “Who-
ever commits culpable homicide not
amounting to murder shall be punished
with [imprisonment for life], or impris-
onment of either description for a term
which may extend to 10 years, and shall
also be liable to fine, if the act by which
the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death, or with imprisonment of either
description for a term which may extend
to 10 years, or with fine, or with both, if
the act is done with the knowledge that
asked one Dr Ketkar to visit the
hospital. By 4.30 am, Dnyanada was
getting fits.
Seeing the poor prognosis, Dr Ketkar
shifted the patient in his own car and
admitted her in the ICU of Parkar Hos-
pital, where she was kept on the ventila-
tor. At 7 am, she expired. The post-
mortem revealed the cause of death to
be pulmonary embolism.
T
he Court has called it criminal
negligence, which is defined as
“gross negligence so extreme that
it is punishable as a crime”. However,
culpable negligence is intentional con-
duct where the accused may not intend
to do harm, but which a reasonably pru-
dent man would recognise as involving a
strong probability of injury to others.
This would be a case of culpable neglect,
defined as blameworthy neglect.
An error in diagnosis could be negli-
gence and covered under Section 304A
of the Indian Penal Code (IPC). The ele-
ment of criminality is introduced not
only by a guilty mind but by the practi-
tioner having run the risk of doing
something with recklessness and indif-
ference to the consequences. This negli-
gence or rashness is gross in nature.
In the present case, the patient was
directed to be admitted in the absence
of doctors and medicines were adminis-
it is likely to cause death, but without
any intention to cause death, or to
cause such bodily injury as is likely to
cause death.”
T
he Court has applied Section
304 in this case even when there
was an established relationship
of the doctors with the patient. Tele-
phonic consults in such situations are
normal. The patient was informed that
doctors were not available. Missing pul-
monary embolism by gynaecologists
cannot be termed gross negligence. Sec-
tion 304 involves either intention or
knowledge. There was no knowledge on
the part of the doctors that it was a case
of embolism. The patient was seen by a
doctor in the evening and early morn-
ing and it was he who shifted her in his
own car to another hospital.
In the US, embolism accounts for
1,00,000 deaths annually and in Europe,
3,00,000 deaths. Among venous throm-
boembolism-related deaths in Europe,
three-quarters are hospital-acquired and
one-third sudden and fatal. In this case,
even Parkar Hospital did not diagnose
the embolism and it was found out only
by the post-mortem.
The issue is that in an established
patient-doctor relationship, telephonic
and telemedicine consultation do not
amount to negligence. Doctors should
challenge this judgment or the national
telemedicine programme, where health
workers take instructions from doctors
over the telephone, will fail.
In an earlier Supreme Court judg-
ment, too, it was said that telephonic
instructions should be avoided unless in
an emergency. But these are applicable
to new patients where the doctor does
not know about the patient.
—The writer is president, Heart
Care Foundation of India, and
former national president, Indian
Medical Association
TheBombayHighCourthascalledit
criminalnegligence.However,culpable
negligenceisintentionalconducteven
whenthepersonmaynotintendtodo
harm.Thiswouldbeculpableneglect.
upload.wikimedia.org

Focus/ Srikrishna Report
28 August 13, 2018
he much-awaited report on
data privacy by the Justice
BM Srikrishna-led com-
mittee of experts has dealt
with a large number of
issues, and yet is short of
expectations. One of the reference points
of the report is the landmark judgment
of the Supreme Court in Justice KS
Puttaswamy (retd) vs Union of India
which elevated privacy to the level of a
fundamental right. While that gave teeth
to the report’s recommendations, it also
had some restricting effects.
The report, titled “A Free and Fair
Digital Economy—Protecting Privacy,
Empowering Indians”, was presented to
Union Law Minister Ravi Shankar
Prasad (in his capacity as also the elec-
tronics and information technology
minister) at a media event and will now
be forwarded to Prime Minister Naren-
dra Modi. While on the one hand it
talks about explicit consent in availing
of and using personal data for “clear,
specific and lawful” purposes, on the
other it also says how the government
may decide to use such data if consid-
ered necessary for any function of
Parliament or state legislatures.
This lends teeth to the government’s
push to universalise the use of Aadhaar,
which carries vital biometric data, and
which could now be used as the centre
deems fit. Incidentally, the Supreme
Court’s judgment on Aadhaar and relat-
ed privacy issues is yet to be delivered,
and a recent bench headed by Chief
Justice Dipak Misra (who also headed
the constitution bench that heard the
Aadhaar case) refused to admit a plea
that the Srikrishna Committee report
should be included among documents to
be considered while delivering the
Aadhaar judgment. This means that the
judgment would not be influenced by
this report.
Technically, the Aadhaar judgment
would not be just about privacy and
Thereporthasnottakenaclearstandonprivacyandseemsat
variancewiththegovernment’sAadhaarscheme.Itrelies
heavilyonassumptionsoflawsthatmaybecreatedoramended
By Sujit Bhar
Muddying the Waters
T

related policy, but would also reflect on
all government schemes that intend to
gather information from the public for
use. If the judgment on Aadhaar and
allied linkages is negative, then the
Committee’s recommendation on the
function of Parliament or state legislature
clause for gathering data would bite the
dust. Under such circumstances, the Data
Protection Bill that has accompanied the
report will also need extensive reworking.
The confusion arises in the commit-
tee’s other recommendation, which is
the data principals’ (original owners of
the data) “right to be forgotten”. This is
fundamental to the Aadhaar scheme
which is a veritable database of all citi-
zens and the government would hardly
agree to delete data of its citizens.
There have been incidents in the
public domain when a criminal had
wanted his database (fingerprints, pic-
tures, etc.) with state CID departments
to be removed. Many databases can be
traced back decades or even after the
death of the person concerned. Also, as
one CID director of fingerprints confid-
ed to India Legal, authorities are unwill-
ing to throw away “valuable” data just
because it is old. Often, old databases
have helped in solving recent cases, even
if the person concerned has been acquit-
ted or served his sentence. Hence, even
if the original owner of the data with-
draws his or her consent, there will be
no way for him to find out if that data
still exists, in any mirror server else-
where. Therefore the right of ownership
of personal data remains on paper.
The other suggestion of the commit-
tee is data localisation. This emanates
from jurisdictional issues that Indian
courts have faced in cases dealing with
internet giants such as Facebook, Goo-
gle, Microsoft, WhatsApp, and so on, on
objectionable content. Their servers are
across the globe and when information
is stored abroad, no Indian law can
exercise jurisdiction over it.
In the EU, recent legislation called
the EU GDPR (in force from May 25)
replaced the Data Protection Directive
of 1995. The report takes this as a refer-
ence point and says: “It is a comprehen-
sive legal framework that deals with all
kinds of processing of personal data
while delineating rights and obligations
of parties in detail. It is both technology
and sector-agnostic and lays down the
fundamental norms to protect the priva-
cy of Europeans, in all its facets. We are
informed that 67 out of 120 countries
outside Europe largely adopt this frame-
work or that of its predecessor.”
Such acts are not new; a large num-
ber of countries across the globe have
laws/policies that force data localisation.
Apart from the EU, in Russia, China and
Indonesia, this is “forced” localisation
and is applicable to a large spectrum of
industry where data must stay in servers
within respective borders. Australia,
Germany, South Korea and Venezuela
have enacted industry-specific laws
involving financial, health and medical
information, online publishing and
telecommunications data. Even in the
US, it is mandatory that data related to
specified government transactions or
important national security be stored
locally. With Indian servers, information
is stored in servers in Scotland and Texas
instead. It is time these technical issues
are sorted out on a priority basis. How-
ever, the legal requirement cannot be
overlooked if courts and law enforce-
ment authorities in India are to be pro-
vided the ability to implement directives.
The report also talks about border-
less data, an urgent issue that needs to
be taken into consideration. It says:
“Despite attempts by some countries
and private entities making the internet
a walled garden for its citizens and con-
sumers, the internet is free to access and
use from any jurisdiction. This is central
to our conception of a free digital econo-
my. Thus, any website operating out of
any foreign jurisdiction which is
accessed by a person present in India
may collect and process some personal
data relating to such person. They
should not be disincentivised from
doing so.
“If such personal data is collected
and further processed but is neither
large scale nor capable of causing signif-
icant harm in case of misuse, Indian law
should not apply to this case. If this
were to be done, every entity on the
internet would have to comply with a
plethora of laws on the basis of the off
chance that an individual from that
country would access the service... India
should desist from making its law appli-
cable to these instances... For example,
IMPERFECT
POLICY
(Facing page)
Justice BN
Srikrishna and Law
Minister Ravi
Shankar Prasad
share the dais after
submission of the
data protection
report prepared by
the Committee;
(right) the Supreme
Court’s judgment on
Aadhaar has the
potential to change
the contents of
the Bill that has
accompanied
the report
TheothersuggestionoftheCommitteeis
datalocalisation.Thisemanatesfrom
jurisdictionalissuesthatIndiancourts
havefacedincasesdealingwithinternet
giantssuchasFacebook,WhatsApp,etc.
upload.wikimedia.org

Focus/ Srikrishna Report
30 August 13, 2018
a globally popular music streaming app
is not available in India. However, some
Indians may access it, either abroad or
through usage of a virtual private net-
work. This will not make the company
subject to the Indian data protection
law.” The only problem that would arise
in India is the country’s poor record and
legal structure on Intellectual Property
Rights, but that’s another related issue.
Following international examples,
the commission has also recommended
that a Data Protection Authority be set
up to “protect the interests of data prin-
cipals” by preventing the misuse of per-
sonal data at “data fiduciaries” (or those
who process such data). While the com-
mission says that data fiduciaries will
have the responsibility of conducting
audits and ensuring they have a data
protection officer and grievance redres-
sal mechanism, many of those centres
(also called authentication centres or
agencies) who have struck deals with
UIDAI are in the private sphere. It
would be impossible for authorities to
keep track of the large amount of data
passing through these portals.
The report says: “After having exam-
ined the powers and functions of exist-
ing statutory regulators such as TRAI,
SEBI, CCI, and so on and the deficien-
cies in the existing framework for Aa-
dhaar, the Committee is of the consid-
ered view that the UIDAI must be vest-
ed with the functions of ensuring effec-
tive enforcement, better compliance,
consumer protection and prevention
and redress of privacy breaches. Accor-
dingly, powers should be given to the
Authority to impose civil penalties on
various entities (including requesting
entities, registrars, and authentication
agencies) that are errant or non-compli-
ant... This will work in tandem with the
provisions of the draft data protection
bill which will allow all aggrieved indi-
viduals to approach the Data Protection
Authority in case of violation of the data
protection principles, against any entity
in the Aadhaar ecosystem, including the
UIDAI itself, when it is a data fiduciary.
Taken together, this will ensure that
aggrieved citizens have appropriate
remedies against all entities handling
their Aadhaar data and errant entities in
the Aadhaar ecosystem are subject to
stringent enforcement action.”
It can also be inferred from this that
the commission had little respect for the
way the UIDAI has been pushing
Aadhaar and the Aadhaar Act itself. The
inadequacies of the Act have been high-
lighted in the past.
This is made clear when the report
talks about processing of sensitive per-
sonal data. It categorises them as pass-
words, financial data, sexual orientation,
biometric data, religion, caste, and so
on. The processing of these should req-
uire consent from the owner of the data.
Hence, even if the data (biometrics, for
example) was forcibly taken from citi-
zens by the government, they will not be
able to use it without explicit consent.
This means that if the government
uses such data to classify citizens into,
say, religious sub-groups, it would be
tantamount to misuse of data. And
where will the citizen get relief? From
the UIDAI, as per the commission. Yet,
it also says that the government can use
this if it was essential for Parliament!
Obviously, the right hand does not know
what the left hand is doing.
The confusion comes out in no small
measure in the commission’s recom-
mendation to rewrite the RTI Act. It
wants to dilute Section 8(1)(j) of the
RTI Act, which talks about the disclo-
sure of personal information in the larg-
er public interest. While it says there
would be no obligation to reveal person-
al information which was not related to
“public activity or interest”, or would be
an invasion of privacy, the commission
wants this to be diluted to a balance
between public interest and the harm
caused to the data principal.
It is apparent from the report that
the issue of personal privacy is foggy.
While this verbose report has some
positives and negatives, it relies heavily
on assumptions of laws that may be cre-
ated or amended. Prasad has made it
clear that this being a massive legal
work, it needs to be widely debated, and
hence it will go through many checks,
before the accompanying Bill even starts
getting vetted.
TheEU,Russia,ChinaandIndonesiahave
lawsthatforcedatalocalisation.Evenin
theUS,certaindataisstoredlocally.With
Indianservers,informationisstoredin
serversinScotlandandTexasinstead.

India Legal 13 August 2018

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