Law Unto Themselves Despite Supreme Court strictures, lawyers across the country continue to strike work, crippling litigation, causing massive revenue loss and creating a rift between the Bar and the Bench

1. NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
October 15, 2018
Despite Supreme Court strictures, lawyers across
the country continue to strike work, crippling
litigation, causing massive revenue loss and
creating a rift between the Bar and the Bench
LawUntoThemselves
Professor Upendra Baxi
on the independence of
the Bar and judicial
independence
IL&FS Crisis: India’s
Lehman Brothers moment?
Gir Lions:
Dying for pride

3. MMEDIATELY after donning the mantle of
the chief justice of India, Justice Ranjan Gogoi
offered some clue as to what the Supreme
Court under him will be like. His priority, he
declared, would be to focus on the vast backlog
of cases and filling judicial vacancies. Those aims,
however, are largely administrative in nature,
requiring strict discipline, qualities he is well
known for. What assumes much greater impor-
tance is his attempt to revive a national conversa-
tion on “constitutional morality.”
Stating that people are divided “more than ever”
along the lines of caste, religion and ideology, Jus-
tice Gogoi’s core message was that judicial beliefs
must be continuously evaluated on the touchstone
of constitutional morality. He defined “true patriot-
ism to the Constitution” as adherence to constitu-
tional morality.
For most people inured to political venality and
muscular majoritarianism, that objective may seem
utopian but viewed in the context of recent judg-
ments by the highest court in the land, it is extre-
mely significant.
Under his predecessor, Dipak Misra, the Sup-
reme Court had struck down Section 377 of the
Indian Penal Code, saying it was upholding “consti-
tutional morality” and not “majoritarian morality”
while deciding to decriminalise homosexuality. The
verdict overruled a previous judgment which held
that only a small number of people were exercising
their rights. As the former CJI said later at a con-
ference of law students, “it’s not the number that
determines the right. A right permissible under the
Constitution is a right that has to be respected.”
That right was also witnessed in the Supreme
Court ruling on Sabarimala to allow women into
the temple. It was seen as correcting a discrimina-
tory social and religious practice that was violative
of Part III of the Constitution. Constitutional mo-
rality basically rejects the transactional view of the
Constitution or majority opinion which is the key
to managing a vast country like India with its
diversity of cultures, communities, castes, religions
and customs. To adhere to the majority view rather
than the Constitution carries the danger of empow-
ering the mob and undermining the rule of law.
The current tension—social, cultural, ideological
and political—between the majority and India’s
minorities is a clear and present threat to the coun-
try’s potential for progress. The only glue that holds
it all together is constitutional morality. In a plural-
istic society, acceptance of individual identity is the
key to social stability. Constitutional morality guar-
antees equal rights to everyone.
In his last address to the Constituent Assembly,
Dr Ambedkar defined social democracy as a way of
life which recognises liberty, equality, fraternity as
one principle. The only defender of these rights is
the Judiciary. In his book on constitutional morali-
ty, sociologist Andre Beteille pointed out that with-
out constitutional morality, the operation of a
Constitution “tends to become arbitrary, erratic,
and capricious.” The Indian Constitution was made
possible by a constitutional morality that was liber-
al at its core. As Ambedkar saw it, in a democratic
order, constitutional morality and judicial values
play a central role in affecting coordination bet-
ween conflicting interests. He envisaged a socio-
judicial backdrop to fulfilling the aspirations of the
people, for the people, and by the people. The
courts were to be the intermediary between the cit-
izens and the organs of the state. As the custodian
of the Indian constitution, the Judiciary has a lead-
ing role to play in upholding the majesty of the law
based on the ideal of constitutional morality.
In that context, Justice Gogoi’s assertion that
the Constitution will reign supreme in the Supreme
Court is good news for Indian democracy and the
rule of law. It is purely coincidental but also ironic
that the test of whether his actions meet his words
during his 13-month tenure—will now be live
streamed.
THE MORALITY PLAY
Letter from the Editor
I
| INDIA LEGAL | October 15, 2018 3
Afterbecomingthe
CJI,JusticeRanjan
Gogoisentoutthe
messagethat
judicialbeliefs
mustbe
continuously
evaluatedonthe
touchstoneof
constitutional
morality.He
defined“true
patriotismtothe
Constitution”as
adherenceto
constitutional
morality.
AN ERA BEGINS
Justice Ranjan Gogoi being sworn in as the CJI by
President Ram Nath Kovind at Rashtrapati Bhavan
UNI

4. ContentsVOLUME XI ISSUE48
OCTOBER15,2018
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4 October 15 2018
Law unto Themselves
Despite apex court strictures, lawyers in several parts of the country continue to strike work,
crippling litigation, causing revenue loss and creating a rift between the Bar and the Bench
LEAD
12
A Lehman Brothers Redux
Infrastructure Leasing & Financial Services Ltd’s problems are an indictment of the public-private
partnership model which an overeager government has promoted without due diligence
18
COLUMN
Judges Can Make It Better
A press release by the chairperson of the Bar Council
of India while raising valid points also questions
Justices who have taken an oath to uphold the
Constitution, writes Prof Upendra Baxi
16

5. Unsafe on
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Followuson
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
| INDIA LEGAL | October 15, 2018 5
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
Ringside............................6
Delhi Durbar......................8
Courts.............................10
Media Watch ..................31
Satire ..............................50
The latest and largest hack of this social
media network shows that India has no
option but to finetune the Personal Data
Protection Act 2018 and push it through
OPINION
FOCUS
48
Smoking without Fire 43
The sale of Electronic Nicotine Delivery Systems
has been banned by the health ministry, but they
are less harmful than conventional cigarettes
The state has become the first to pass a law aimed at encouraging
citizens to help victims of road accidents without fear of being harassed
34Karnataka Takes the First Step
Vanity Kills the Pride
The Gujarat government is to blame for the death of 23 Gir lions in
20 days as it resisted attempts to relocate some to Madhya Pradesh
24
ENVIRONMENT
STATES
MEDIA
Though the Press Council of India has asked for a special law to protect
journalists in Jammu & Kashmir, each must analyze the risk for himself
32State of Dangerous Journalism
TRANSPORT
The Pricing Dilemma
The Delhi Metro Railway Corporation
was recently taken to court over fare
hikes, but affordability and sustainability
still need to be balanced
Don’t Muzzle the Sting
The Delhi High Court has set aside an order restraining
Cobrapost from broadcasting an investigation on paid news
22
COURTS
UP Police’s Licence to Kill 40
The killing of an Apple India executive by police constables in Lucknow once again
throws light on how ill-trained, unprofessional and politicised the force is in the state
Uttarakhand’s Weeping Meadows 38
A High Court order has hit the state’s thriving tourism industry as it bans night camping
on its picturesque bugyals. Why can’t lessons be learnt from Sikkim and Nepal?
Government’s
Sharp Rap for
Homebuilders
A landmark order by the National
Anti-Profiteering Authority in the
real estate sector will penalise
companies for not passing on
benefits such as input tax credit
to homebuyers
28
COMMERCE
MP Polls’ Long Shadow 36
A CBI judge asks the police to file an FIR against Congress leaders for presenting false
information, four days after he allowed a petition by one of them in a Vyapam case
46

6. 6 October 15, 2018
“
RINGSIDE
“Want to clarify there is
nothing to be upset...this
is a process, I have been
AICC secretary long
enough, new and young
people need to be brought
into the organisation. If
each one holds on to posi-
tions forever where will
the other aspirants go.”
—Senior Congress leader
Priya Dutt on Twitter, after
she was removed from the
post of secretary, AICC, by
Rahul Gandhi
“Even opposition parties
cannot openly oppose a
Ram temple in Ayodhya
as they are aware the
deity is revered by a
majority of Indians. Ram
mandir will be built at
any cost.”
—RSS chief Mohan
Bhagwat while speaking at
a function in Haridwar
“So, it’s not the Chief Justice who is going
to drop mentioning. The mentioning is
going to die by itself. These are the kind of
solutions that me and my colleagues are
trying and we hope we have your coopera-
tion. And we will launch it very soon....”
—Justice Ranjan Gogoi at a felicitation
ceremony organised by the Supreme Court Bar
Association on the day he took over as the new CJI
“The Failing New York
Times did something I
have never seen done
before. They used the con-
cept of ‘time value of
money’ in doing a very
old, boring and often told
hit piece on me. Added
up, this means that 97 per
cent of their stories on me
are bad. Never recovered
from bad election call!”
—US President Donald
Trump on The New York
Times report alleging that
he was involved in tax
fraud in the 1990s
“This concept of nation
goes back to relatively
recent times, particular-
ly the French Revolu-
tion of 1789…. The con-
cept of Indian nation
has really originated
from the freedom
movement, it does not
come from the Rig Veda
like the RSS seeks to
tell us.”
—Historian Irfan Habib
at a function in Delhi
“One brother runs a gro-
cery shop, another brother
drives an auto. Their
mother lives in a 10 by
12 room but she doesn’t
stay in the PM’s house—
tell me, is there any prime
minister like this in
the world.”
—Tripura Chief Minister
Biplab Kumar Deb, refer-
ring to Narendra Modi
while addressing a gather-
ing in Agartala
“The independence of
judiciary stands erect and
that shall stand erect, and
there is the collegiality
amongst the brother and
sister judges of the court,
and the Supreme Court
stands supreme, not (just)
today, but in times ever
to come.”
—Justice Dipak Misra in
his farewell speech as the
chief justice of India

8. 8 October 15, 2018
An inside track of
happenings in Lutyens’ Delhi
There has been much criticism of the
photo/video which showed a dead terror-
ist being dragged along a tarred road in
Kashmir by a chain tied to his ankles. In
Kashmir and elsewhere, the Indian army
came under fire for so-called human
rights violations.
While the army has not reacted to the
accusations, unlike the case of Major
Gogoi and the man tied to his jeep,
sources in Srinagar say that in any
combing operation in the Valley, chains
and ropes are standard equipment along
with firepower and technical aids.
The reason, they say, is that terrorists
who are fired upon and greviously
wounded, are instructed by their Pakistan
handlers to lie on their stomachs and
activate booby traps sewn into their
clothes which explode as soon as they
are turned over for identification, killing
Indian army soldiers within range (civil-
ians are kept out of encounter sites).
To counter this, whenever a terrorist
is killed and found lying on his stomach,
ropes or chains are hooked to his feet
and he is turned over from a distance to
avoid any booby trap casualties. Once
that is done, the chains/ropes are
removed and the body covered with a
white shroud. The only question to be
asked is who shot the photo/video and
released it on social media?
BODY OF EVIDENCE
When in doubt, attack Pakistan. The BJP,
faced with rising anger from farmers, the
unemployed and other sections, has
adoped that fail-safe strategy for the
upcoming elections in key states and the
Big One next May. Attacking Pakistan,
verbally and otherwise, now lies at the
core of its campaign. The decision to cel-
ebrate Surgical Strike Day in 51 cities set
the stage, preceded by “leaked” videos
of the Army action. Prime Minister Modi
added fuel to the fire during his latest
Mann ki Baat when he said: “It is decided
that our soldiers will give a befitting reply
to all those who try to disturb India’s
peace and prosperity.” Home Minister
Rajnath Singh hinted at another cross-
border strike following the killing of a BSF
jawan in firing from across the LoC when
he said: “Something big has happened
and you will also see what happens in
future.” The army is also on board with its
chief, General Bipin Rawat, declaring that
another surgical strike was called for,
while External Affairs Minister Sushma
Swaraj’s anti-Pakistan diatribe at the UN
was seen as a warning to the internation-
al community that India is prepared to act
militarily against Pakistan-sponsored ter-
ror. Not since the Bangladesh War has
the political leadership used the army as
a propaganda tool.
While the BJP’s top brass gives the
outward signs of being united and speak-
ing with one voice, internally a battle is
raging with snide attacks and insinuations
gaining in frequency, mostly directed at
three senior ministers—Finance Minister
Arun Jaitley, External Affairs Minister
Sushma Swaraj, and Home Minister
Rajnath Singh.
While Swaraj is seen as a soft target
and disliked for her extending a helping
hand to anyone with a problem involving
her ministry, including minorities, Jaitley is
seen as the fount of all the anger directed
at the party and government which are
mostly to do with economic woes: job-
lessness, demonetisation, GST,
and rising cost of living, which
includes fuel prices. His open
critic, the BJP’s Rajya Sabha
MP, Subramanian Swamy, has
sharpened his attack on Jaitley
with a tweet 10 days ago ask-
ing: “Who provoked the french
fmr president who signed rafael
deal to blurt out about anil
ambani? the politician who
planted in ie the story about film
making by a french cine star.
This was to hurt namo. Who is the
planter? Who else?” A day later, he tweet-
ed another cryptic message about the
CBI director which was clearly aimed at
Rajnath Singh. Such attacks by its own
MPs are highly embarrassing for the
ruling party but, intriguingly, neither
Narendra Modi nor Amit Shah have react-
ed or intervened, suggesting that the
power games in ministerial circles are
being encouraged.
THE WAR WITHIN
CROSS-BORDER STRATEGY

9. | INDIA LEGAL | October 15, 2018 9
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Delhi
Durbar
With the Rafale deal
occupying so much
media space, and
BJP supporters
jumping to its
defence without
quite knowing the
background, it has led to some embar-
rassing moments for some heavy-
weights. Minister of State for External
Affairs MJ Akbar (left) was quick to tweet
this: “Fact: MoU was signed between
Rafale and Reliance on 13 February
2013, when Rahul Gandhi was in power.
Another lie peddled by Congress
President is exposed.” This was on
September 22. As a minister, one would
expect Akbar to know that the so-called
deal in 2013 was a tentative agreement
between Mukesh Ambani’s Reliance
Industries when the industrialist was
contemplating entering the defence
space, only to pull out shortly after. It
seems inconceivable that Akbar would
mistake the younger brother, Anil, for
Mukesh, when the two run different
companies—Anil Ambani’s defence ven-
ture with Dassault was launched barely
a fortnight before the deal for 36 aircraft
was signed in Paris. Then we had BJP
MP Rajeev Chandrasekhar (centre) fol-
lowing suit by tweeting this: “So
@RahulGandhi is ok with #Dassault
hvng #Reliance as offset partner under
#UPA in 2012 but its a ‘scam’ when
same Dassault ties up with #Reliance
under #NDA in 2016 ?” He too mixed
up the brothers. Then there was RSS
ideologue S Gurumurthy (right) who also
mixed up the brothers in his tweet.
Maybe Anilbhai should serve them a
Cease and Desist notice.
SIBLING
CONFUSION
QUEEN VERSUS
COMMONER
In an address to volunteers for the BJP’s
social media cell in Kota, party President
Amit Shah revealed the party’s plans to
counter any negative news in the press.
He declared that leading up to the
assembly elections in Rajasthan,
Madhya Pradesh and Chhattisgarh, the
BJP social media cell in Delhi had creat-
ed two separate WhatsApp groups with
over three million members.
Each morning at 8 am, the cell
would send messages to each volun-
teer’s phone giving details of any
newspaper, TV or online report that
was unfavourable to the BJP. The vol-
unteer’s job would be to immediately
brand it “fake news” and circulate it to
all contacts and voters. “Hum jo chaa-
hein woh sandesh janta tak pahuncha
saktey hain, chaahe khatta ho ya
meetha ho, sacha ho ya jhoota ho.
(We are capable of delivering any
message we want to the public,
whether sweet or sour, true or fake),”
he said. He made it clear that social
media would be the key to winning the
upcoming elections, and urged volun-
teers to project Narendra Modi as the
saviour of the nation. He concluded by
saying that cheap smartphones and
low internet costs had made social
media—Facebook and WhatsApp in
particular, potent tools to disseminate
pro-BJP messages.
THE FAKE NEWS PLAN
Recent opinion polls regarding state
elections in Madhya Pradesh show
that the BJP led by Chief Minister
Vasundhara Raje could be in serious
trouble with the Congress gaining
considerable ground. Now, Raje, a
member of the erstwhile Scindia royal
family, could face further embarrass-
ment with the wife of an IPS officer
posted in the state daring to
announce that she will be contesting
the elections and against the chief
minister in her Jhalrapatan con-
stituency. Raje has been elected MLA
from here since 2003 but now seems
on shaky ground. The officer’s wife,
Mukul Pankaj Choudhary, who was
born in Jhalrapatan, has been going
around saying that her husband has
been victimised and his postings and
promotions stalled because he is an
honest officer. The Raje government
has already served no less than
seven chargesheets against the
husband, Pankaj Choudhary, a
Rajasthan-cadre IPS officer, on
various charges. Raje’s challenger is
no political tyro—her mother was a
minister in an earlier Congress gov-
ernment. However, she will be con-
testing as an independent candidate,
which might dent her chances
against the Rani.

10. Courts
10 October 15, 2018
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
Delhi HC acquits
Suhaib Ilyasi
Mob leaders liable to pay damages: SC
While hearing a PIL
which sought framing
of guidelines to deter the
violence caused by funda-
mentalist outfits and fringe
elements, the apex court
held that leaders of outfits
calling for mob violence are
liable to pay damages. The
Court issued a set of guide-
lines to prevent such vandal-
ism, on matters such as
responsibility of police offi-
cials, coordination with local
emergency services, setting
up of rapid response teams
by the state governments,
etc. The PIL was filed in the
backdrop of the Karni
Sena agitation against the
movie, Padmavat.
The Kerala High Court turned
down the bail plea of Bishop
Franco Mulakkal, who has been
arrested on the charge of raping a
nun belonging to the Missionaries
of Jesus under the Jalandhar dio-
cese. In his petition, the Bishop
had contended that the allegations
made by the nun were “wholly
concocted and cooked up only to
wreak vengeance”. Opposing the
bail plea, the Director General of
Prosecution (DGP) argued before
the Court that the investigation
was at a crucial stage and granting
bail to the accused may impede
the collection of further evidence.
New SC roster
announced
ASupreme Court bench headed by CJI
Ranjan Gogoi dismissed an interim
application seeking a stay on the proposed
deportation of seven Rohingya refugees
from Assam to Myanmar. The bench, also
comprising Justices Sanjay Kishan Kaul
and KM Joseph, gave directions to the
Assam government for deporting the
seven Rohingya refugees after Additional
Solicitor General (ASG) Tushar Mehta con-
tended that the “people in question entered
into Indian territory illegally”. The ASG
also informed the bench that the govern-
ment of Myanmar had confirmed the
seven refugees to be Myanmar nationals
and will provide them with certificates of
identification for deportation purposes.
Advocate Prashant Bhushan, representing
the petitioners, argued that human rights
are at stake and the refugees will be killed
if they go back to Myanmar. However,
these contentions did not find favour with
the Court as it concluded that the refugees
have been found to be illegal immigrants.
SC orders deportation
of 7 Rohingyas
No bail for rape
accused bishop
Soon after assuming office as the new
Chief Justice of India, Justice Ranjan
Gogoi notified changes in the Supreme
Court roster. As per the new roster, all letter
petitions and PILs will be heard by the CJI
while some PILs will be heard by the bench
headed by Justice MB Lokur, the second
seniormost judge of the Supreme Court.
The CJI bench will also hear matters relat-
ing to social justice, elections, company
law, arbitration, appointment of constitu-
tional functionaries, habeas corpus peti-
tions, criminal cases, contempt of court
and ordinary civil matters. The bench head-
ed by Justice MB Lokur will hear matters
relating to land acquisition, forests, environ-
ment, wildlife and ecology. Justice Kurian
Joseph, who is third in seniority, will hear
matters relating to labour, rent, service,
family and criminal cases, simple money
and mortgage matters. Justice AK Sikri, the
fourth seniormost judge, has been ass-
igned tax matters and election petitions and
will also hear matters relating to contempt
of court. Personal Law matters will be
heard by benches headed by five different
judges—Justices MB Lokur, AK Sikri,
Kurian Joseph, NV Ramana and UU Lalit.
The Delhi High Court acquitted
former TV anchor and producer
Suhaib Ilyasi, accused of murdering
his first wife, Anju, 18 years ago.
Setting aside the trial court’s con-
viction order passed in December
2017, the High Court held there
was no evidence against Ilyasi and
the prosecution too had failed to
establish the murder charges.
Ilyasi, who became popular as the
anchor of TV crime show India’s
Most Wanted, was sen-
tenced to life imprisonment
by the trial court which
found him guilty of the
murder of his wife
saying he “commit-
ted murder and
gave it a colour
of suicide”.

12. Lead/ Lawyers on Strike
12 October 15, 2018
EBRUARY 2018: The Calcutta
High Court witnessed the
longest ever cease work protest
in its history with around
11,000 lawyers boycotting
work for 71 days.
May 2018: Lawyers of the Rajasthan
High Court organised a month-long
strike during which they boycotted
work, led silent marches and blocked
roads in the court premises.
August 2018: Lawyers in Ghazia-
bad organised a 22-day-long relay
hunger strike during which they boy-
cotted courts and got into a scuffle with
the police.
September 2018: Odisha dominated
news headlines as lawyers engaged in
violent acts during a cease work protest
which has continued for 34 days despite
Despitecourtstrictures,lawyersinseveralpartsofthecountrycontinuetostrikework,crippling
litigation,causingmassiverevenuelossandcreatingariftbetweentheBarandtheBench
By Vrinda Agarwal
F
Law unto
Themselves
DONE FOR THE DAY
Lawyers in a Ranchi
court protesting
against the Advocates
(Amdt) Bill, 2017
Photos: UNI

13. | INDIA LEGAL | October 15, 2018 13
the Supreme Court directing them to
resume work.
More than 150 days have already
been lost this year in various courts
across the country due to strikes and
boycotts by lawyers, causing massive
loss of revenue and great inconvenience
to litigants. The statistics for previous
years are no better. According to the
266th report of the Law Commission of
India, between 2011 and 2016, 18 courts
in Uttar Pradesh, Tamil Nadu,
Uttarakhand and Rajasthan were on
strike for an average of around 110 days
per year, with several at more than 135
days a year, and one—Muzaffarnagar—
at an average of 158 days.
The increasing frequency with which
lawyers resort to strikes and boycotts
begs the question as to why they indulge
in acts which even courts have stated
are illegal. As per the Law Commission
report, the reasons for lawyers’ strikes
and abstention protests organised dur-
ing the period 2011-16 were hardly justi-
fiable. They included religious occasions
such as shraadh, heavy rains, interstate
river disputes, earthquake in Nepal,
bomb blast in a Pakistan school and
even a kavi sammelan. But not all rea-
sons can be considered whimsical or
patently untenable. On several occa-
sions, lawyers have taken the recourse of
strikes and boycotts as a means to voice
their grievances and seek remedial
action. Violence against lawyers, espe-
cially by the police, demands for greater
pecuniary jurisdiction and more circuit
benches, outrage against judicial vacan-
cies and expensive court fees are some
of the grievances most commonly taken
up by lawyers.
This raises a very pertinent question:
do lawyers even have a right to call for
strike? The Supreme Court and the
High Courts have consistently declared
that lawyers’ strikes are illegal and that
effective steps should be taken to stop
the growing tendency. This question was
conclusively settled by the apex court, 15
years ago, in Ex Capt. Harish Uppal v
Union of India, where it was held that
“lawyers have no right to go on strike or
give a call for boycott, not even a token
strike. The protest, if any is required,
can only be by giving press statements,
TV interviews, carrying banners and/or
placards, wearing black or white or any
colour arm bands, peaceful protest
marches outside and away from court
premises, going on dharnas or relay
fasts etc...” It was further held that
Courts may turn a blind eye to a protest
abstention from work for not more than
one day, but only in the “rarest of rare
cases” where the dignity, integrity and
independence of the Bar and/or the
Bench are at stake.
I
n March this year, the above princi-
ple was reaffirmed by the Supreme
Court in the case of Krishnakant
Tamrakar v State of Madhya Pradesh. A
division bench comprising Justices AK
Goel and UU Lalit held that frequent
strikes and suspension of court work by
lawyers are illegal as they seriously
obstruct access to justice. Going a step
further, the bench also said that such
actions amount to contempt of court,
and therefore, office bearers of the asso-
ciations who give calls for strikes are
liable to be restrained from appearing
before any court for a specified period
determined by the chief justice of the
concerned high court and may be
“By every strike, irreversible dam-
age is suffered by the judicial sys-
tem, particularly consumers of jus-
tice. They are denied access to jus-
tice. Taxpayers’ money is lost on
account of judicial and public time
being lost. Nobody is accountable for
such loss and harassment.”—
Justices AK Goel and UU Lalit in
Krishnakant Tamrakar v State of
Madhya Pradesh (2018)
“Hardships faced by witnesses if
their evidence is not recorded on the
day they are summoned or impact of
delay on undertrials on account of
avoidable interruptions of court pro-
ceedings is a matter of concern for
any responsible body of profession-
als and they must take appropriate
steps. This needs attention of all con-
cerned authorities and ways and
means ought to be found to tackle
this menace…Judicial services and
legal services are missions for serv-
ing the society. The mission is not
achieved if the litigant who is waiting
in the queue does not get his turn for
a long time.”—Justices AK Goel and
UU Lalit in Hussain and Anr. v Union
of India (2017)
“It is settled law that it is unprofes-
sional as well as unbecoming for a
lawyer who has accepted a brief to
refuse to attend Court even in pur-
suance of a call for strike or boycott
by the Bar Association or the Bar
Council. It is settled law that Courts
are under an obligation to hear and
decide cases brought before it and
cannot adjourn matters merely
because lawyers are on strike.”—
Justices Doraiswamy Raju, SN
Variava and DM Dharmadhikari in Ex
Capt. Harish Uppal v Union of India
(2003)
SC’sraponthe
knuckles
Time and again, the Supreme
Court has chided lawyers for
resorting to strikes and holding
litigants and the judicial system
itself to ransom
“Theexecutiveandthejudiciaryaretobe
blamed.Theymustadoptaproactive
approachinaddressinglawyers’
concernsonatimelybasis.”
—MurariTiwari,ex-secy,DelhiBarCouncil

14. removed from their position forthwith
unless the chief justice of the concerned
high court permits otherwise. Further,
the bench called for enacting legislation
to check the malady of frequent strikes
and directed the ministry of law and
justice to submit quarterly reports on
lawyers’ strikes, abstention from work,
loss caused and action proposed in
response to such events.
Predictably enough, the legal frater-
nity across the country reacted sharply
to the Supreme Court ruling. As a mark
of protest, the Bar Council of India
(BCI) has called for a nationwide
demonstration later this month and has
requested active participation from all
the State Bar Councils. Last year too,
the BCI had organised a similar protest,
after the Law Commission recommend-
ed that the Advocates Act, 1961, be
amended to impose a ban on lawyers’
strikes and suggested other measures for
the regulation of the legal profession.
Murari Tiwari, former secretary of
the Delhi Bar Council, told India Legal
that lawyers are feeling aggrieved over
the Supreme Court judgment because
abstention from work is their only
means of protest against atrocities com-
mitted against them by the police and
against executive decisions that affect
their profession. He said: “The Supreme
Court’s order to initiate contempt pro-
ceedings against office bearers of the
associations who call for strikes is sim-
ply not fair. While the tendency of some
lawyers to boycott work for months on
end is disturbing and should be curbed,
the executive and the judiciary are also
to be blamed. They ought to adopt a
proactive and genuine approach in hear-
ing out the concerns raised by lawyers
and addressing them on a timely basis.”
I
t comes as no surprise then that
lawyers’ strikes have continued
unabated, in flagrant violation of
the Supreme Court’s decisions. As a
result, this issue has remained a cause of
perpetual tension between the Bar and
the Bench. In the interest of ending the
impasse, should the executive and judi-
ciary explore other ways to tackle the
issue while giving supremacy to the liti-
gants’ right to speedy trial? Have the
Courts taken too simplistic an approach
on an issue that merits more nuanced
deliberation? Is it fair to deem all the
grievances raised by lawyers as unwor-
thy of protest and impose a complete
embargo? Shouldn’t the BCI play its
part in better regulation of the legal pro-
fession and take appropriate action
against unruly lawyers during strikes?
Perhaps these questions deserve more
dialogue and engagement than they
have so far received. One thing is for
certain, this issue is unlikely to die down
anytime soon, and in the foreseeable
future, men and women will don black
not to seek justice for their clients but
for themselves.
Lead/ Lawyers on Strike
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
14 October 15, 2018
State District No. of strike days 2012-16
Uttar Pradesh
Muzaffarnagar 791
Faizabad 689
Sultanpur 594
Varanasi 547
Chandauli 529
Ambedkar Nagar 511
Saharanpur 506
Jaunpur 510
Tamil Nadu
Kancheepuram 687
Kanyakumari 585
Madurai 577
Cuddalore 461
Sivagangai 408
Uttarakhand
Dehradun 455
Haridwar 515
Rajasthan
Jodhpur 142
Jaipur 30
A 2017 Law Commission report indicates that courts in UP, Tamil Nadu,
Uttarakhand and Rajasthan bore the brunt of strikes during 2012-16
Onlydisruption,nowork
JUSTICE ON LEAVE
Patna High Court bears a deserted look
during a recent lawyers’ strike
This year, courts in Odisha, Kolkata, UP and Rajasthan have seen the most number of strikes so far
Source: Law Commission

16. Lead/ My Space Upendra Baxi
16 October 15, 2018
ApressreleasebythechairpersonoftheBarCouncilofIndiawhileraisingvalidpointsalso
questionsJusticeswhohavetakenanoathtoupholdtheConstitution
Independence of the Bar
& Judicial Independence
WO extraordinary events
occurred recently. On
September 30, lawyers of
Cuttack, including those of
Orissa High Court, intensi-
fied their month-long
strike (despite an order of the Supreme
Court) and burnt effigies of then Chief
Justice of India Dipak Misra and Chief
Justice of Orissa High Court KS Jhaveri
during a rally. Media reports said that
derogatory slogans were shouted and
that at least six judges were seen walk-
remarks by the CJI on the lawyers’
cease-work in a matter in which they
were not a party. But surely, as a learned
profession, they could have responded
in other dignified and effective ways.
The second event was a press release
on September 29 signed by Manan
Mishra, chairperson of the Bar Council
of India, where he rightly states that the
independence of the judiciary is vital to
“a healthy and vibrant democracy” and
such effigy-burning is “a matter of seri-
ous concern”. However, Mishra issues an
T
ing to the Court escorted by
security guards due to a blockade of
their cars.
This is a matter of great concern:
symbolic action of this nature has never
occurred in the 70 years of India’s con-
stitutional history, no matter what dis-
content there was in the Bar or what
provocation was actually offered by
Justices at work. There are other equal-
ly effective ways of expressing protest
and if need be can be innovated. The
local Bar was, of course, reacting to
Photos: Anil Shakya

17. | INDIA LEGAL | October 15, 2018 17
ominous warning—it has certain peda-
gogic lessons for Justices to introspect
because what has been done by the
Odisha Bar Association may be repeated
“by lawyers of the entire country” and
the day is “not far when the general
public will toe the line”.
Such dire prognostications are
unwelcome. What the country needs is
renewal of faith in constitutional and
democratic processes and the Bar’s role
in decelerating the undemocratic tem-
per is inestimable. The Bar Council and
leaders of the Bar played a democracy-
reinforcing role when four seniormost
justices in an unprecedented act
addressed a press conference on
January 12, 2018, against the function-
ing of their own institution, ie, the
Supreme Court.
It is most welcome that the Bar
Council of India has “always tried to
maintain the decorum of the Institution
and tried to protect it” and is “never in
favour of strikes, boycotts, abstentions,
etc.”, and has taken, where necessary,
action against errant members pursing
unjustified strikes or strike-like recours-
es. But the press statement also says
that the Bar fails to appreciate the “hos-
tile attitude of some of the Judges of the
country towards the Bar and their
Institution”. In principle, all “anti-Bar”
approaches are to be deprecated and
courts are well-aware of the Bar’s central
importance in administrative action.
But is the reminder that the Bar is a
learned profession and advocates the
officers of the Court (bound also by
ethics as the Advocates Act, 1961 recog-
nises) necessarily anti-Bar? Ought one
to further aggravate the already asym-
metrical relations of power between the
Bar and the Bench?
I
t is true (as Manan Mishra says)
that the “Bar and the Bench are two
wheels of the chariot… of the Rule
of Law”, and judicial independence also
entails the autonomy of the legal profes-
sion. Certainly, dialogical ways should
be further found to avoid any infliction
of “humiliation” on lawyers and the Bar
should be able to raise the matter non-
judicially before the chief justices and
finally before the CJI or seniormost jus-
tices of the Supreme Court who consti-
tute the collegium. But to generalise
specific instances of “some of the judges”
taking “pleasure in humiliating lawyers”
even by way of remote implication as is
the current fad is unworthy.
While the Council and the Bar may
express opinions on how the judiciary
may proceed, the distinction between
judicial function and public criticism
must never be overlooked. The press
note seems to be in a danger of doing
just that. For example, it speaks about
the “reckless manner, in which our apex
court has been dealing with some
sensational issues and PILs” making all
of us a “laughing stock. This is another
delicate issue over which our higher
judiciary will have to sit with the Bar
and think seriously”.
But hermeneutic adjudicatory lead-
ership belongs solely to the judicial
function, though lawyers may influence
this by argumentation. The Bar, as such,
cannot have a direct role in shaping this
policy: the task must be seriously and
strictly left alone to Justices who have
taken an oath to decide without fear and
favour and to uphold the Constitution
of India.
The press note also reflects, and rein-
forces the public perception that “tradi-
tional litigation” is unjustly ignored. It
says: “Major time of courts are (sic)
wasted on media-popular matters with
which 99% of citizen (sic) have no con-
cern at all.” Until further empirical evi-
dence is produced, one must regard
such observations as mere expression of
opinion from even one so highly placed
as Mishra. A similar ipse dixit is that
“most of our judges are far, far away
from ground realties and public opinion
over social issues”. Surely, if such is the
situation (which it is not), the Bar
which argues for and against a position,
often for high fees, should also be held
equally responsible!
The press release is entirely correct
in reiterating that the “Indian Bar has
requested the High Courts and the
Supreme Court Justices not to accept
any assignment after their retirement at
least for two years”. Examples of lucra-
tive post-retirement government assign-
ments are on the increase and these cer-
tainly bode ill for judicial independence.
The chairperson (Manan Mishra) is cer-
tainly right in recalling that Justice Jasti
Chelameswar announced that he will
not take up such an offer on retirement
and Justice Kurian Joseph has now
followed suit. In expressing the hope
that the retired 45th CJI will follow
the same course, the chairperson has
served well the eminent cause of
judicial independence.
—The author is an international
law scholar, an acclaimed teacher
and a well-known writer
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
BCIchairperson
MananMishrarightly
statesthatthe
independenceofthe
judiciaryisvitalto“a
healthyandvibrant
democracy”andsuch
effigy-burning
is“amatterof
seriousconcern”.

18. Column/ IL&FS Dr Sanjiv Bhatia
18 October 15, 2018
TheproblemsofIL&FSarean
indictmentofthePPPmodel.
Initseagernesstobuildinfra-
structure,thegovernmenthas
ignoredflawsintheexecution
andfinancingoftheseprojects
India’s Lehman Brothers?
NFRASTRUCTURE Leasing &
Financial Services Ltd (IL&FS) is a
quasi-sovereign company which has
invested heavily in infrastructure
projects in India. It was founded by
government entities and its largest
shareholder is LIC, a State-owned insur-
ance company. Over the years, IL&FS
has used its close affiliation with the
government to run up a debt of `91,000
crore which it now has trouble repaying.
It has already defaulted on around `250
crore of repayments, and according to
Bloomberg, has around `3,000 crore of
additional repayment obligations due
over the next six months.
Could IL&FS be India’s Lehman
Brothers? Financial companies are
deeply interlinked and troubles in one
company often have repercussions on
others that it is financially linked to. The
portfolios of banks, mutual funds,
pension plans and insurance companies
will get stressed from their failed
investments in IL&FS. Could this be the
conflagration that triggers a full-blown
banking crisis? While the answer is
uncertain, the probability of such an
event just got significantly higher.
The government is now actively mov-
ing to save IL&FS, first by replacing its
existing board with a new six-member
committee headed by private banker
Uday Kotak, and then eventually infus-
ing capital into it through government-
controlled entities like LIC and SBI.
Will this contain the damage or is this a
The world of capital markets dep-
ends crucially on signals because
investors use them to formulate their
probabilities about the future. If regula-
tors had not bailed out Bear Stearns, the
consequences, while unpleasant for the
company, would have signalled to other
troubled institutions that they needed to
prepare themselves better for financial
distress. But by bailing out Bear Stearns,
the regulators created what is called
“moral hazard”—i.e. the propensity to
take larger risks knowing that if things
don’t work out, the government would
provide a bailout. This set expectations
for everything that followed.
So when Lehman found itself in
financial trouble, it was utterly unpre-
pared for a bankruptcy filing. It, too,
had expected to be rescued and had,
therefore, not explored other alterna-
tives to bankruptcy. A possible sale of
some assets at fair value, an orderly
liquidation of its derivative positions
and open credit lines against its collater-
I case of closing the barn door after the
horse has bolted?
One of the handicaps of our profes-
sion (I am a financial economist) is that
unlike chemistry or physics, we don’t
have the luxury of running controlled
experiments repeatedly in a laboratory.
So, there is no definitive answer on the
best solution for a given financial prob-
lem. One can, however, draw upon les-
sons from similar issues in the past. The
2008 Lehman bankruptcy that started
a global financial crisis is a good tem-
plate on how to deal with IL&FS.
In March 2008, six months before
the Lehman bankruptcy, another major
investment bank, Bear Stearns, collap-
sed in a similar fashion. The US govern-
ment and regulators, afraid of a fallout,
arranged for the sale of Bear Stearns to
JP Morgan Chase, using $29 billion of
government money (read taxpayer
money) to facilitate the sale. Bear
Stearns avoided default, but its bailout
sent a very different message to the cap-
ital markets—that the government
would be willing to step in and bail out
other major financial institutions that
risked default.
IN THE THROES OF A CRISIS
IL&FS has run up a debt of `91,000 crore
which it is now finding difficult to repay

19. | INDIA LEGAL | October 15, 2018 19
als, are some alternatives that could
have saved Lehman from bankruptcy.
T
he lessons from the Lehman cri-
sis are clear. The Indian govern-
ment must exercise great caution
about sending the wrong signal to finan-
cial markets given that it is staring
down the barrel of other potentially
large bankruptcies in the banking and
power sectors. It needs to think long
and hard about the risks from the moral
hazard it would potentially create by
bailing out IL&FS.
The company has long-dated illiquid
assets—investments of over $25 billion
in infrastructure projects, including
roads, townships, water and sewage
projects. The new board consists of peo-
ple with good knowledge of capital mar-
kets and by buying itself some time, this
board may be able to find an orderly
way to liquidate IL&FS assets, but it is
unlikely that it will succeed in changing
the eventual outcome. Poorly managed
companies with bad economic models
are eventually forced out of business, as
they should be, because they consume
resources that could be better used else-
where. This is the creative-destruction
process of free markets. Trying to resus-
citate such companies only moves the
can down the road and results in misal-
location of resources.
The financial implosion of IL&FS is
a clear indictment of infrastructure
financing in India, in particular, the
public-private partnership (PPP) model.
IL&FS is a pioneer of PPP projects in
India and has a portfolio of about
13,000 km of roads in addition to waste
treatment plants and other PPP assets.
But many of its investments do not gen-
erate any revenue, either because tolls
have been removed from roads by politi-
cians wanting to please voters, or water
and sewage treatment plants have been
closed as municipalities cannot generate
the revenue to operate them.
Someone has to pay for infrastruc-
ture and the PPP model works only if
there are predefined and immutable
user fees. The people of India need to
understand that while good infrastruc-
ture is necessary for economic prosperi-
ty, it is not free. A good road requires
payment of tolls by those who use it, a
sewage treatment plant requires users
to pay fees, and a waste management
facility requires municipal taxes. If you
use it, you have to pay for it.
The bulk of India’s infrastructure has
been financed either by a small taxpayer
base or, more recently, by the sharehold-
ers and investors of infrastructure com-
panies. Over the last five years, the total
debt at IL&FS increased from around
`48,600 crore to `91,000 crore. This
money came from investors and went
into building the country’s infrastructure
but it might never be recoverable. Once
bitten, twice shy. These investors will be
extremely reluctant to invest in India’s
infrastructure again.
The IL&FS saga points to the urgent
need for the government to formulate a
clear strategy on how it intends to
finance future infrastructure projects
because the PPP model in India is bro-
ken. Most projects suffer from a combi-
nation of systemic corruption, poor eco-
nomic modelling, lack of flexibility and
the inevitable political risk. As a result,
most infrastructure companies face
stressed balance sheets. This sector in
India is literally broke. In fact, it is
among the top five loan defaulting sec-
tors and has been a significant contribu-
tor to the banking crisis. The situation
with PPP projects is so bad that Larsen
& Toubro, one of the country’s largest
infrastructure firms, has decided that it
will not bid for any more BOT (build-
own-transfer) projects as the returns are
not commensurate with the risk.
India needs to invest almost $4 tril-
lion over the next 15 years to meet its
infrastructure needs. The public sector
alone cannot fund this. The involvement
of the private sector is vital to achieve
this goal. But the financial woes of
IL&FS could be the final nail in the
UTI Asset Mgmt 0.82 India Discovery Fund
0.86
Others 1.77
LIC
25.34
ORIX Corp
23.54
ADIA
12.56
HDFC
9.02
Central Bank
of India 7.67
SBI 6.42
IL & FS Employes
Welfare Trust 12.0
Figures in
percent as
on March 31,
2018
ShareholdingPattern
Source: IL&FS India

20. failed to fix the problems related to how
infrastructure projects are tendered,
awarded, financed and evaluated.
Most infrastructure projects are still
evaluated using static life-cycle models
without incorporating more dynamic
and flexible techniques. This resulted in
an imbalance between the risk and
return from long-dated infrastructure
projects. Also, the vast majority of gov-
ernment tenders are still awarded on
the L1 (lowest cost) basis which almost
guarantees suboptimal performance
because of what economists call the
“winner’s curse”—where the winner sub-
mits an underestimated bid and is
cursed to win the project.
Additionally, because of the retro-
grade policies of the market regulator,
SEBI, India lacks an active secondary
market that can allow for the securitisa-
tion of infrastructure assets and disper-
sion of the risk. As a result, the entire
burden of infrastructure financing falls
either on the taxpayers or on private
vendors—there is very little participa-
tion by investors in the capital markets.
For example, long-term municipal
bonds, which finance more than 70 per-
cent of infrastructure projects in the US,
are almost never used to finance proj-
ects in India. Infrastructure contractors
and companies like IL&FS are forced to
borrow using short-term debt, whereas
their investments are in long-dated
projects. This maturity mismatch cre-
ates liquidity problems and eventually,
financial distress.
Finally, Rajan must be congratulated
for bravely resisting shrill calls to lower
interest rates from politicians and old-
school economists, many of whom con-
tinue to advise the government. Lower
rates would have allowed even more
unviable projects to be funded, resulting
in larger losses and more NPAs.
—The writer is a financial economist
and founder, contractwithindia.com
20 October 15, 2018
coffin of PPPs in India. It is time for the
government and the bureaucracy to do
some serious introspection because the
problem lies within. It is time to stop
the showboating and get down to the
serious business of designing institu-
tions and processes that can invigorate
infrastructure spending. Outside experts
with knowledge of project valuation,
infrastructure finance and capital mar-
kets must be brought into the decision-
making process—it can’t just be politi-
cians and bureaucrats anymore. That
model hasn’t worked and IL&FS is evi-
dence of that.
Another crucial lesson from both
Lehman and IL&FS is the need for gov-
ernments to understand the crucial link
between capital markets and economic
prosperity. One of the banes of modern-
day capitalism is that banks are now able
to create credit out of thin air, thanks to
fractional-reserve lending. Since this
credit is not backed by a corresponding
amount of savings, there is always the
risk of excessive credit creation in good
times, which inevitably leads to bad
hangovers when the party is over.
Raghuram Rajan, ex-RBI governor,
alluded to this risk in a recent testimony
to the parliamentary committee on
NPAs. He said that the current NPA
problem was the result of over-exuber-
ance and excessive credit creation dur-
ing the good times between 2004 and
2010. Everyone, including the banks,
started to extrapolate good times into
the infinite future. As a result, a lot of
Column/ IL&FS / Dr Sanjiv Bhatia
bad projects that did not make econom-
ic sense got funded. Banks were handing
out loans to companies like they were
store candy. Now, when the party has
slowed down, the NPAs have started to
mount. Real estate is a great example of
such over-exuberance. Hundreds of
unviable projects were funded by banks
based on exaggerated assumptions of
investment returns.
T
his over-exuberance inevitably
leads to extension of credit to bad
companies and bad projects. And
the problem is exacerbated by govern-
ment interference in the functioning of
free markets. The source of the Lehman
crisis was the US government’s
Affordable Housing Act which forced
banks into lending to unworthy cus-
tomers to purchase homes. This was the
result of the Clinton administration’s
desire to “allow every American to own
a home”. Cheap credit flooded the real
estate market, but many borrowers did
not have sufficient income to repay
those loans. As a result, the US mort-
gage market collapsed and companies
like Lehman with large leveraged invest-
ments in the mortgage industry suffered
significant losses.
The IL&FS crisis has similar roots.
In its eagerness to boost infrastructure
spending, the government has forced
infrastructure companies like IL&FS to
take on huge debt to fund poorly-
defined projects with unclear returns.
But in its exuberance, the government
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Thegovernmenthas
replacedtheIL&FS
boardwithanewsix-
membercommittee
headedbyprivate
bankerUdayKotak
(left),andhasplansto
eventuallyinfuse
capitalintoitthrough
government-controlled
entitieslikeLICandSBI

22. Courts/ Cobrapost
22 October 15, 2018
S a guardian of free
speech and healthy
democracy, the Delhi
High Court has set aside
an order restraining
Cobrapost website from
making a sting operation by it public.
The order was passed by a division
bench comprising Justices S Ravindra
Bhat and AK Chawla. It was hearing an
appeal by Cobrapost against the Dainik
Bhaskar group which had sought and
been granted a restraining order by a
single-judge bench on May 24.
The High Court’s order came as a
relief to the website at a time when the
media is being curbed. Cobrapost’s sting
operation was part of a documentary
which alleged that major media compa-
nies had indulged in malpractices such
as being paid for publishing news,
polarising the public on communal lines
and accepting money for furthering a
political agenda.
A single-judge bench had passed an
ex parte injunction restraining
Cobrapost from making its sting opera-
tion on Dainik Bhaskar public after the
group approached the Court seeking an
injunction. The group claimed that the
sting was full of lies and deception and
if allowed to be aired, would cause
irreparable loss and injury to the
group’s reputation.
The High Court, while setting aside
the injunction, said that the issue of cor-
rectness of the impugned order is
important, “which facially does not dis-
cuss or dwell upon cursorily even, the
facts or merits”. The High Court held:
“Clearly, an unreasoned order granting
ex parte injunction for the entire dura-
tion of the suit, is impermissible.”
Cobrapost’s sting operation was called
Operation 136. This number refers to
India’s ranking in the 2017 World Press
Freedom Index. Cobrapost targeted as
many as 27 media houses, including some
big ones. Its undercover reporter, Pushp
Sharma, had sold each media company
the same story—that he represented a
wealthy Hindu ashram which wanted the
Sting in the Tail
Inawelcomemove,theDelhiHighCourthassetasideanorderrestrainingthewebsitefrom
makinganinvestigationrelatingtomediaorganisationspublic
By Naved Ahmed
A
TRUE COLOURS
Dainik Bhaskar sales and marketing head
Harrish M Bhatia caught in the act; (inset)
reporter Pushp Sharma

23. | INDIA LEGAL | October 15, 2018 23
ruling party to remain in power.
In order to ensure this, he told the
media house his three-step strategy. The
first was to get the media houses to
adopt a “soft Hindutva” strategy which
included the sayings of Lord Krishna
and the Bhagvad Gita, then to attack
rival parties and then to promote the
Hindutva agenda. The sting operation
talks in detail about payment and shows
directors of newspapers haggling over
prices. While some prefer cash, others
prefer part-cash and part-cheque. The
revelations of the sting operation were
naturally shocking and confirmed what
had been suspected all along—that the
media can be bought.
A
s the Dainik Bhaskar Group suc-
ceeded in getting a stay order,
Cobrapost released its sting with-
out its inputs. All but two Bengali
regional newspapers agreed to propagate
the Hindutva agenda. The Bengali news-
papers—Bartaman Patrika and Dainik
Sambad—refused to put out such con-
tent, citing that it was against their poli-
cy. After the Delhi High Court vacated
the stay order, Cobrapost uploaded its
exposé on Dainik Bhaskar on its website.
The single-judge bench had granted
an ex parte injunction to subsist during
the entire pendency of the suit. The
order was further passed without
recording the reasons for granting the
stay, which is inconsistent with the law
established. The division bench, while
setting aside the order, called it totally
unjustified. “Unless it is demonstrated at
the threshold that the offending content
is malicious or palpably false, an injunc-
tion and that too an ex parte one, with-
out recording any reasons, should not be
given,” the Court said.
The High Court said that new-age
media, especially electronic, and the
internet pose a great threat as they
spread misinformation, but it should
not dilute the “valuable right of free
speech which, if one may say so, is the
lifeblood of democracy”. The Court fur-
ther said that the “salutary and estab-
lished principle in issues that concern
free speech is that public figures and
public institutions have to fulfil a
very high threshold to seek injunctive
relief in respect of alleged libel
or defamation”.
The bench said that if the established
principles are not followed by the judici-
ary, it might end up stifling public
debate which is one of the many pillars
that democracy stands upon. “If courts
are to routinely stifle debate, what can-
not be done by law by the State can be
achieved indirectly without satisfying
exacting constitutional standards that
permit infractions on the valuable right
to freedom of speech,” the bench said.
Taking a stern stand on free speech,
the bench stated that even if the story is
spreading misinformation about the reli-
ability of news, it, too, is a matter for
public debate. It said: “The members of
the public and citizens of this country
expect news and fair comment as to
whether a public institution—including a
media house or journal (which cannot
claim any exemption from being public
institutions as they are the medium
through which information is dissemi-
nated, and are one of the pillars of
democracy)—functions properly.”
It further said: “In case there are
allegations which result in controversies
as to the reliability of the news which
one or the other disseminates to the
public, that too is a matter of public
debate.” It said that “democracy presup-
poses robustness in debates, which often
turns the spotlight on public figures and
public institutions—like media houses,
journals and editors. If courts are to
routinely stifle debate, what cannot be
done by law by the state can be achieved
indirectly without satisfying exacting
Constitutional standards that permit
infractions on the valuable right to free-
dom of speech”.
This order has come as a ray of hope
for free speech and those who are bold
enough to stand up for democracy.
“Unlessitisdemonstratedatthethresholdthattheoffendingcontentis
maliciousorpalpablyfalse,aninjunctionandthattooanexparte one,without
recordinganyreasons,shouldnotbegiven.”
—aDelhiHighCourtbenchcomprisingJusticesSRavindraBhat(left)andAKChawla
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
TheHighCourtsaidthatnew-agemedia,
especiallyelectronic,andtheinternet
poseagreatthreatastheyspread
misinformation,butitshouldnotdilute
the“valuablerightoffreespeech”.

24. Environment/ Gir Lions
24 October 15, 2018
HE worst fears of the
Supreme Court, which
ruled in favour of an alter-
native home for the Asiatic
lions in Madhya Pradesh
five years ago, seem to be
coming true. Twenty-three lions have
perished in the last 20 days in their only
home of Sasan Gir in Gujarat. The gov-
ernment, which initially tried to cover
this up by attributing the deaths to in-
fighting, has now been forced to admit
that many were caused by canine dis-
temper and babesiosis infection.
Based on a PIL, the Supreme Court
on October 3 questioned Gujarat and
the centre over these deaths. “This is
extremely serious... so many lions have
died,” observed a bench headed by
Justice Madan B Lokur. “Lions must be
protected. Why so many deaths...you
must find out the reasons and do some-
thing to stop it,” the bench told Addi-
tional Solicitor General ANS Nadkarni.
The bench has given him a week for this
and has sought an explanation from
Thedeathof23lionsin20daysinSasanGirisevidenceofthesystemicfailureofGujaratto
lookafterthesecatsanditsfalsesenseofprestigeinnotrelocatingsomeofthemtoMP
By RK Misra in Gandhinagar
Dying for Pride
TCRYING FOR ATTENTION
Though lions are one of the
mainstays of tourism in Gujarat,
yet the state government has
failed to take action for
their welfare
forests.gujarat.gov.in

25. | INDIA LEGAL | October 15, 2018 25
Gujarat on these deaths.
The distressing part is that Gujarat
has been dragging its feet in handing
over a handful of lions to neighbouring
Madhya Pradesh. Warnings by lion con-
servationists were ignored all along,
leading to the devastating deaths of
these prized cats in the only habitat for
them in the world. Gujarat’s forest min-
ister, Ganpat Vasava, had admitted in
the assembly on March 3, 2018, that 184
lions out of a total of 523 in Gir forest
had died between 2016 and 2017.
T
he state forest department carries
out a lion census every five years.
The 2005 survey had counted
359 lions, and this grew to 411 in 2010.
The latest census in 2015 found 523
lions, 109 of whom were male, 201
female, with 140 cubs and 73 sub-
adults. It was only recently that Chief
Minister Vijay Rupani stated that their
number stood at 600. The mismatch
between his statement and that of the
forest minister is telling.
Nevertheless, the minister’s state-
ment, made much before the present
deaths, alarmed the Gujarat High Court.
It not only took suo motu cognisance of
it, but also issued a notice to the state
and central governments. The division
bench of Chief Justice R Subhash Reddy
and Justice VM Pancholi also appointed
senior advocate Hemang Shah amicus
curiae to assist it in the matter.
Ravi Chellam, a veteran wildlife con-
servation scientist, has for long been
seeking translocation of these lions. He
has said that concentration of an entire
population of one canine breed in one
area leaves them highly vulnerable to
disease, weather phenomena or
forest fires.
The Supreme Court in its April 15,
2013, order directed the Union ministry
of environment, forest and climate
change to take urgent steps for the rein-
troduction of the Asiatic lion from the
Gir forests to the Kuno wildlife sanctu-
ary in Madhya Pradesh. It had asked the
authority to carry out the order in “letter
and spirit” within six months.
The International Union for Conser-
vation of Nature also advised that a sec-
ond home be found for this species.
India’s National Wildlife Action Plan
2017-31, the official document that
guides conservation of wildlife, too
advised “suitable, alternative homes for
single, isolated population of species
such as Asiatic lion”. The apex court said
that the relocation plan prepared by a
team of experts was in accordance with
international norms. So why did matters
move at snail’s pace?
For one, Prime Minister Narendra
Modi during his stint as chief minister
of Gujarat had publicly opposed the idea
of relocating these lions and had made it
a prestige issue. With the UPA govern-
ment at the centre, it suited his politics
as well. Now with Modi as prime minis-
ter, there is a veil of silence over this
issue. Even a contempt petition failed to
stir the official machinery. The official
answer is that preparatory studies need
to be carried out and are underway.
Even retired bureaucrats and forest offi-
cers, who are vocal in private, refuse to
come on record, fearing retribution.
As media reports of the lion fatalities
created a furore, Gujarat brought GK
Sinha, principal chief conservator of
forests of the state, to face hostile media
fire. Sinha claimed that six of the 11
Asiatic lions found dead during the last
11 days were killed by infighting. The
cause of death of the remaining
five is “yet to be ascertained”. He added
that five other lions injured in the
infighting had been rescued and moved
to safer places.
The cover-up had gaping holes
because Sinha said that all the carcasses,
found largely in the Dalkhania and
BasedonaPIL,theSupremeCourthas
questionedGujaratandthecentreover
theliondeaths.“Thisisextremely
serious...somanylionshavedied,”saida
benchheadedbyJusticeMadanBLokur.
COURT AS SAVIOUR
The SC wanted Asiatic lions to be
reintroduced in Kuno sanctuary, MP, from Gir

26. Environment/ Gir Lions
26 October 15, 2018
Jasadhar range in the heart of the lion
sanctuary, were in a highly decomposed
state and it took time for the forest offi-
cers to even identify their gender. More-
over, territorial battles largely involve
males and not females of the species.
As lions continued to drop dead, the
“infighting” excuse stood exposed. After
that, it was Rajiv Gupta, additional chief
secretary, forests and environment,
Gujarat, who confirmed that four of the
21 deaths had been caused by Canine
Distemper Virus (CDV), while 17 had
succumbed to babesiosis protozoa infec-
tion carried by ticks and found on cattle
and canines in the wild.
“This is much, much more serious
than is being made out and there is
every chance that it has spread to other
wildlife species like foxes,” said a top
retired forest officer. In 1994, lions in
Serengeti, Tanzania, suffered from an
outbreak of CDV and out of a popula-
tion of 2,500 lions, 1,000 were wiped
out, according to reports.
S
adly, warnings were not heeded in
Gir. In 2007, when a lion carcass
tested positive for the highly con-
tagious PPRV virus, two animal research
institutes had suggested immediate dis-
ease surveillance. Regarding these dis-
eases, Gujarat was forewarned twice—in
2011, by the Centre for Animal Disease
Research and Diagnostics, Bengaluru,
and later by the Indian Veterinary Re-
search Institute—about the presence of
PPRV. Four lions sent to Etawah’s lion
safari park in Uttar Pradesh were dead
of CDV by 2016.
Even the money allocated for these
lions is not enough. In reply to a ques-
tion asked by Congress MLA Bhaga
Barad, the government said only
`31.82 crore had been allocated for lion
conservation between April 1, 2013, and
March 31, 2018. Another question on
long-term conservation plans for lions
elicited the reply that `48 crore was
sought from the centre over the last five
years and it had so far allocated only
`6.23 crore.
Dr Manish Doshi, Gujarat Pradesh
Congress Committee spokesperson, told
India Legal: “The then chief minister,
Modi, was very fond of hauling the
Manmohan Singh government over the
coals regarding injustice to the state.
Now, when the shoe is on the other foot,
the pinch does not invite a squeal.”
The Gujarat High Court-appointed
amicus curiae’s report submitted recent-
ly provides ample evidence of the gov-
ernment’s casual approach to lions and
habitat conservation. To cite an exam-
ple, in its first affidavit, the state govern-
ment said there were 30,000 open wells
in the sanctuary and in the second one,
it claimed there were 50,517 open wells.
Open wells are death traps for lions. “An
increase of 20,517 needs an explana-
tion,” the report said. It also said that an
explanation was needed from the gov-
ernment for an allocation of only
`90,000 per lion against `9 lakh per
tiger. Another key recommendation is
declaring the entire area an eco-sensi-
tive zone as a no-mining zone.
Sand and limestone mining is ram-
pant and falls in the natural corridor of
the lions. It flourishes with official and
political connivance. Wildlife activist
Amit Jethva, who had opposed illegal
mining in Gir, was shot dead outside the
High Court on July 20, 2010, and the
then BJP MP from Junagadh, Dinu
Bogha Solanki, was arrested by the CBI
in this connection in 2013.
Interestingly, the standing committee
of the National Board for Wildlife in its
meeting on March 27 this year gave the
go-ahead for limestone mining by a pri-
vate company on 417 hectares at Sujala
and Jagatiya villages, just about six kilo-
metres from the sanctuary. This was
allowed even though the Gujarat High
Court had put a stay on the final notifi-
cation of the eco-sensitive zone (ESZ) of
the Gir Protected Area.
The stay was imposed while hearing
a PIL in 2017 when the Gujarat govern-
ment submitted a proposal to the centre
for reducing the eco-sensitive zone from
3.33 lakh hectares comprising 291 vil-
lages surrounding Gir to 1.14 lakh
hectares consisting of 191 villages. Sujala
and Jagatiya villages were part of the
ESZ as per the earlier demarcated area,
but were removed in the new proposal.
The movement of hundreds of tractors
at Shingodha through the sanctuary and
the transfer of officers who insisted on
official orders is a sordid story of crimi-
nal culpability.
Strangely, the story of Gir’s lions is
full of contradictions. Lions are one of
the mainstays of Gujarat tourism. Yet
the government spends just a fraction
on them as compared to tigers and
tourism. Not only has the state govern-
ment not added a single new protected
area in the last 10 years, it has moved to
reduce the ESZ around Gir by almost
two-thirds. Even governor of MP and
former CM of Gujarat Anandiben Patel
was in the news over Gir as in 2016, it
was alleged that her daughter’s business
associates were granted 250 acres near
the sanctuary at `15 a metre!
While the usual noises will be made
over the present tragedy, the ultimate
losers are the hapless lions.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Facing immense pressure over the
shocking deaths of Gir lions, the
Gujarat government has finally decided
to shift them to the Barda Dungar
sanctuary in Porbandar. Ganpat
Vasava, the forest and environment
minister, said: “We’ve decided to fast-
track the shifting of lions to Barda
Dungar. This will be their second home
within the state.” The Barda Dungar
sanctuary is spread over an area of
343 km and is located 80 km from Gir.
In 2013, after the Supreme Court
ordered that the Gir lions be relocated
to the Kuno wildlife sanctuary in MP,
the Gujarat government got into action
to develop Barda as a second habitat
for them within the state. It remains to
be seen whether Barda will prove to be
a better home than Gir.
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28. Commerce/ National Anti-Profiteering Authority
28 October 15, 2018
N September 18, the Na-
tional Anti-Profiteering
Authority (NAA), a gov-
ernment watchdog,
passed a landmark order
which will have a far-rea-
ching impact on the Goods and Services
tax (GST) laws in all sectors, especially
real estate. The order pertained to
builders M/s Pyramid Infratech Pvt Ltd
which had failed to pass on GST reduc-
tion benefits such as availment of input
tax credit (ITC) to 2,476 flat owners.
The order said that the company had
unduly profiteered to the extent of `8.22
crore up to February 28, 2018. NAA
observed that the builder was required
to pass on the benefit of excess ITC and
that it “cannot appropriate this benefit
as this is a concession given by the
Government from its own tax revenue
to reduce the prices being charged by
the builders from the vulnerable section
of society which cannot afford high
value apartments. The Respondent is
not being asked to extend this benefit
out of his own account and he is only
liable to pass on the benefit of ITC to
which he has become entitled by virtue
of the grant of ITC on the Construction
Service by the Government”. The NAA
concluded that there was indeed a vio-
lation of the provisions of Section 171 of
the Central Goods and Services Tax Act
(CGST Act), which was an anti-profi-
teering measure.
After the NAA examined the total
amount of profiteering as calculated by
the Director General, Anti-Profiteering
(DGAP), and the builder’s rebuttals, it
held that the latter had profiteered by an
amount of `8.22 crore from the flat
owners. The NAA ordered under Rule
133 (3) that the builders “should reduce
the price to be realized from the buyers
of the flats in commensurate with the
benefit of ITC received”. Further, the
builder was ordered to pay interest at
the rate of 18 percent per annum.
As for the penal action, the NAA
held that the builders had contravened
the provisions of Section 171 (1) in res-
pect of selling of flats to the buyers and
“realized more price from them than he
was entitled to collect and has also com-
pelled them to pay more GST than they
were required to pay by issuing in-
correct tax invoices and hence he has
committed an offence under Section 122
(1)(i) of the CGST Act, 2017 and there-
fore, he is liable for imposition of penal-
ty. Accordingly, a Show Cause Notice be
issued to him directing him to explain
why the penalty prescribed under Sec-
tion 122 of the above Act read with rule
133 (3) (d) of the CGST Rules, 2017
should not be imposed on him”.
This order is significant as it is the
first one related to the real estate sector
and an adverse one. It also gave some
indications about how profiteering by a
company is to be calculated.
Before the GST rollout in July 2017,
builders had been recovering central
excise duty and state VAT paid to them
Consumer is King
AlandmarkorderbytheNAAintherealestatesectorhas
givenhopetohomebuyersasbuildersarebeingpenalisedfor
notpassingonbenefitssuchasinputtaxcredittothem
By Sumit Dutt Majumder
O
DUPING BUYERS
The order against Pyramid Infratech Pvt Ltd
is significant and the first in the realty sector

29. | INDIA LEGAL | October 15, 2018 29
by those who had booked flats with
them and they were not claiming ITC.
Therefore, there was no undue profi-
teering by them. However, after the GST
rollout, GST was levied on construction
services, first at the rate of 12 percent
and later at 8 percent, and builders
were availing of ITC for all goods and
services used in building flats. This ben-
efit accruing to builders was not being
passed on to consumers and was undue
profiteering.
One of the major aims when GST
was introduced was to bring down the
price of goods and services through vari-
ous measures. This included ITC right
from the production stage to the final
consumption stage, reduction of GST
rate and compliance cost, etc. The gov-
ernment expected that these benefits
would be automatically passed on to
consumers, thus bringing down the
price of goods and services. The govern-
ment further felt that if manufacturers,
dealers, etc. did not pass on this benefit
and made extra profit, they must return
that amount to the consumer or the
society through the Consumer Welfare
Fund. Based on this concept, the gov-
ernment thought of bringing in some
anti-profiteering measures.
Thus, Section 171 of the CGST Act
was brought in. It stipulates that any
reduction in the rate of tax on any sup-
ply or any benefit of ITC will have to be
passed on to consumers by way of com-
mensurate reduction in the price of
goods or services. It further authorises
setting up of an Anti-Profiteering
Authority to ensure this.
Rules 122 to 137 of CGST Rules 2017
cover the details of anti-profiteering
measures, including the setting up of a
standing committee and screening com-
mittee, duties of the National Anti-
Profiteering Authority, examination of
applications by these committees, initia-
tion and conduct of proceedings, order
of the authority, compliance with the
order, etc.
A procedure has also been laid down
for applications to NAA. All applications
of a local nature will be examined by the
state-level screening committee. Once
satisfied that the supplier has not passed
on the benefits specified in Section 171,
it will forward the application with its
recommendations to the standing com-
mittee on anti-profiteering. If that com-
mittee is also satisfied that there is
prima facie evidence to show that the
supplier has not passed on the benefit, it
will refer the matter to the Director
General (DG) of Safeguards for detailed
investigation. The DG of Safeguards will
then submit its report to NAA, which
will pass an order. If the benefits have
not been passed on to the consumer by
way of a commensurate reduction in
prices, it may bring in Rule 127.
I
n addition to real estate, the NAA
has also passed orders relating to
other sectors. In September 2018,
NAA found a Jaipur-based stockist of
Hindustan Unilever Ltd (HUL) guilty of
profiteering by not passing on the bene-
fit of GST reduction on a skin care prod-
uct to consumers. While the GST rate
was reduced from 28 percent to 18 per-
cent, the stockist increased the base
price of that product in order to keep
the selling price the same as before. Be-
fore the reduction of the GST rate, the
purchase price of that item was `158.66
at 28 percent GST. But after the reduc-
tion of GST to 18 percent, the purchase
price of the stock increased from
`158.66 to `172.77.
NAA observed that the stockist had
resorted to profiteering by increasing the
base price in violation of the provisions of
Section 171 and had not passed on the
benefit of reduction in tax rate by reduc-
ing the price of its product. Rather, the
base price was increased by exactly the
same amount by which tax had been
reduced. Further, HUL was legally bound
not to charge the enhanced base price,
resulting in negation of the effect of
SOUND INTENTION
Union Finance Minister Arun Jaitley
addressing a GST Council meeting
AftertheGSTrollout,
GSTwasleviedon
constructionservices,
andbuilderswere
availingofinputtax
creditforallgoods
andservicesusedin
buildingflats.Butthe
benefitwasnotbeing
passedontocon-
sumers,resultingin
undueprofiteering.UNI

30. 30 October 15, 2018
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
reduction in the rate of tax. HUL was
thus accountable for not passing the bene-
fit of the tax rate reduction to customers.
The NAA promulgated a “Methodo-
logy and Procedure” as required under
Rule 126 for determining whether bene-
fits have been passed on to consumers
or not. The NAA observed that there has
been issuance of incorrect tax invoices
whereby the base price of the product
was increased and illegal profit extract-
ed from the customers. Accordingly, the
NAA ordered immediate reduction in
the sale price and deposit of the “profi-
teering” amount for past supplies in the
Consumers Welfare Fund. It also pro-
posed to impose a penalty under Section
122 read with Rule 133 (d).
However, there have also been orders
in favour of suppliers. In the case of
Schindlers India, the applicant had paid
in advance for the purchase of a lift and
was charged service tax which was levi-
able at the time of issue of the invoice
on June 28, 2017. This was correct as
the applicant was liable for payment of
service tax before introduction of GST.
However, with regard to two invoices,
dated July 27, 2017, as the installation of
the second lift had been completed after
CGST Act, 2017, came into force, the
applicant was liable to be charged GST
at the rate prevalent then. Hence, there
was no case of “profiteering”.
I
n another case involving Honda
Cars, the benefit of reduction in tax
rate was passed on to the applicant
by way of reduction in the price of the
car and there was no additional benefit
on account of ITC. Here too, there was
no “profiteering”.
The third case involved Flipkart
which had merely offered its plat-
form to a supplier to sell the prod-
uct by charging commission. NAA
held that Flipkart could not be
held accountable for contravention
of Section 171. Flipkart also
informed NAA that in 7,254 cases
where the rate of GST at the time
of booking of orders on its plat-
form was higher than the rate
prevalent at the time of delivery, it
had initiated a refund.
In a different context, the NAA
also held that withdrawal of dis-
count does not amount to profi-
teering as the same was offered
from the profit margin by the supplier
and does not form part of the base price
and, therefore, even the supplier cannot
be held guilty under Section 171.
These cases have shown that the
NAA has been fair about determining
“undue profiteering” in different types of
transactions. Apprehensions expressed
by trade and industry about whether
the anti-profiteering rules would bring
back the Inspector Raj have thankfully
been belied.
However, there is need for more clar-
ity. Interpretation of what constitutes
“undue profiteering” and the methodol-
ogy to compute this amount has been
left to NAA. The government should
consider laying down the definition of
“undue profiteering” and a detailed
mechanism and criteria for identifica-
tion of “undue benefit” accruing due to
the introduction of GST. Trade and
industry too should also check them-
selves whether they are indulging in
undue profiteering on account of the
GST rate change and additional benefit
of the ITC claim.
—The writer is former chairman,
Central Board of Excise Customs,
and author of GST explained
for Common Man
Commerce/ National Anti-Profiteering Authority
TheNational
Anti-Profiteering
Authorityhasalsopassed
ordersinfavourofmany
companies.These
includeHondaCars
(above)andFlipkart
(left).Thewatchdog
foundthattheycouldnot
beheldaccountable
for“profiteering”.
Photos: UNI

31. | INDIA LEGAL | October 15, 2018 31
Media Watch
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
T
he Press Trust of India
building on Parliament
Street resembles a
fortress under siege. The rea-
son is the protests over the
bloodbath that took place at
India’s biggest news agency
in end-September when
close to 300 staffers were
given marching orders. The
layoffs took place across the country,
with over 70 staffers losing their jobs in
the Delhi headquarters alone. The cost-
cutting exercise involved non-journalists
but led to protests by leading media
organisations and PTI’s union which
has focussed on the unilateral manner
in which the sackings were done—a let-
ter on their desks or to their homes and
on the PTI notice board and website
which declared that the affected
employees were to leave “with immedi-
ate effect”. Financial dues were cleared
by direct transfers to individual bank
accounts. What made it more intriguing
is that the action came a day after a
new Board took over at the agency,
with N Ravi of The Hindu taking over as
chairman from Viveck Goenka.
Namaste,
Editor Ji
Change in Stance
Blank Channels
J
ournalist Vikram Chandra, who
stepped down as the CEO of NDTV
two years ago, has launched his
much-awaited Artificial Intelligence bas-
ed news app called Editor Ji. It provides
personalised newscasts and allows for
viewers to record their opinion on stories.
Editor Ji Technologies Pvt Ltd has been
funded by Bharti Airtel Ltd and HT Media
Ltd which have pumped in `20 crore and
`10 crore, respectively, for the venture.
Chandra has tied up with HT Media Ltd
for broadcasting videos of stories carried
in the group’s flagship enterprise—the
Hindustan Times and news videos host-
ed on the newspaper’s website. The
involvement of Bharti Airtel as a key capi-
tal infuser will ensure that the app is rea-
dily available on the vast existing network
of Airtel and its subsidiaries like Airtel TV
and Wynk. Editor Ji provides a one-tap
access to a personalised newscast that
is created by the app’s AI algorithm
which considers parameters like the
user’s location, news categories, pre-
ferred news style and topics of interest.
W
ith general elections less than
six months away and the BJP
no longer appearing its invinci-
ble self, there seems to be a percepti-
ble change in the way the mainstream
media is willing to question senior cen-
tral ministers. Of course, criticising
Prime Minister Narendra Modi or BJP
chief Amit Shah remains a big no.
Press conferences by senior minis-
ters are no longer rambling mono-
logues where journalists lap up whatev-
er respective ministers wish to dictate.
In recent weeks, Union ministers Piyush
Goyal and Ravi Shankar Prasad have
both faced tough questions from the
press. When Prasad informed the
media about the centre’s ordinance to
ban instant triple talaq, he was left
stunned by questions on whether the
BJP would grant Muslims tickets in the
Lok Sabha polls.
Navika Kumar of Times Now (the
journalist and the channel have both
consistently built a reputation of being a
part of the right-wing propaganda
machinery) left viewers and garrulous
Union minister Smriti Irani flummoxed
recently. During an interview, Kumar
grilled Irani on whether she remem-
bered her feisty protests during the UPA
days when fuel prices were on the
ascendant and why she and her col-
leagues were now doing nothing to
help ease the common man’s burden.
Irani, a known Modi confidante, obvi-
ously ducked the questions and contin-
ued with long critiques of Congress
President Rahul Gandhi and his party.
One wonders whether the change of
stance by the media is a sign of the
changing political weather or the result
of Rahul Gandhi’s willingness to subject
himself to questioning at press interac-
tions, where he never fails to chide the
media on its inability to put “tough
questions” to the ruling dispensation.
C
onsumers of sports, entertain-
ment and news channels were in
for a shock last week when 22
Sony channels and India Today TV sud-
denly went blank. The reason is a com-
mercial dogfight between Sony and its
DTH service provider Tata Sky, and the
failed negotiations between the two over
revenue sharing—the contract was up
for renewal by October 1. Some sub-
scribers were able to watch some chan-
nels after making a few calls. Such com-
mercial tussles are not unusual when
contracts are to be renewed, but rarely
does it lead to channels being blacked
out on a distribution platform.
Making the News

32. Media / Journalists in JK
32 October 15, 2018
N May 11, 2008, photog-
rapher Ashok Sodhi of
JK’s leading English
newspaper Daily Excelsior
set out from Jammu to
report on a serious enc-
ounter between terrorists and security
forces close to the international border
(IB) in Samba, 40 km away. The
thought that he would not come back
was far from his mind. Terrorists had
entered the populated areas and there
was heavy exchange of fire. Sodhi, dili-
gently clicking pictures not far from the
theatre of action, was hit in the head by
a bullet and died on the spot.
Daily Excelsior immediately
announced a life-long monthly pension
of `10,000 for his widow. Monetary help
came in from other quarters as well,
including the Prime Minister’s Office
which contributed `1 lakh. The newspa-
per’s gesture for the bereaved family was
widely hailed; it was a spectacular first
in JK which remains in the grip of
armed militancy.
The Kashmir Editors Guild sent a
firmer message in 2018 that it indeed
cared for the needy families left to fend
for themselves in a conflict situation. It
gave `2 lakh to the family of veteran
journalist and novelist Maqbool Sahil
who died of cardiac arrest while on the
job on March 20, 2018, in Srinagar’s
busy Lal Bazaar. Mehbooba Mufti, then
chief minister, also contributed `5 lakh.
Over the last three decades, about 20
journalists and government media rep-
resentatives have been killed in JK—
an overwhelming majority in the con-
flict-torn Valley. The Press Council of
India (PCI) has recently carried out a
well-intentioned exercise to assess the
threat to mediapersons and suggest
remedial measures. It is believed to
have prepared a report which is being
forwarded to governments in Delhi and
Srinagar. It has echoed the demands of
journalists in JK that they be provided
with bullet-proof vests and helmets, and
jackets with “Press” embossed on them.
It has very rightly put the onus on
media houses to do the needful. It has
suggested that the State Working
Journalists’ Fund should be reconstitut-
ed; all necessary steps taken to nab the
killers of Shujaat Bukhari, editor of
Rising Kashmir, who was shot dead on
June 14; and security arrangements at
Srinagar’s Press Enclave, the hub of
media activity, be beefed up.
One would like to wait for the official
release of the report before passing a
comment on at least two of its reported
observations. One, that there is a “fear
psychosis”, is too general. For, no local
journalist has left the Valley out of panic
and many of those who explored new
professional avenues in other cities have
returned home. Secondly, its suggestion
as reported in the media that “the
Information and Public Relations
Department should convene a meeting
of journalists’ unions and reporters to
make them aware of the norms of jour-
nalistic conduct, especially at the time of
conflict reporting” needs elaboration of
the term “journalists’ conduct”. A jour-
nalist’s sole concern is to report the
truth and he has to conduct himself
accordingly. This is recognised by global
media bodies as well as the Geneva
Convention and their Additional
Protocols which have expressed concern
over the safety of mediapersons in con-
flict regions.
A PCI recommendation suggests
framing a stringent law for the protec-
tion of journalists in JK on the lines of
the Maharashtra Media Persons and
Media Institutions (Prevention of
Violence and Damage or Loss to
Property) Act, 2017. The Act has been
criticised for having certain sections
On Dangerous
Ground
ThoughthePressCouncilofIndiahasrecommendedaspecial
lawtoprotectjournalistsinthisstrife-tornstate,eachof
themhastoanalysetheriskfactorshimself
By Pushp Saraf
O
Journalistshaverefusedtobe
browbeatenintosubmissiondespite
thekillings.Inthelast
threedecades,20mediapersons
havebeenkilledintheValley.

33. | INDIA LEGAL | October 15, 2018 33
which overlap with the Indian Penal
Code (IPC). JK does not have the IPC
because of its special status under the
Indian Constitution. Instead, it has the
Ranbir Penal Code (RPC). Can a jour-
nalist-specific law bypass the provisions
of the RPC and the Armed Forces
Special Powers (Jammu and Kashmir)
Act, 1990, which is also in vogue in the
terror-hit state?
Journalists in JK have refused to be
browbeaten into submission despite tar-
geted killings. These include those of
popular Kashmir Doordarshan director
Lassa Kaul (February 13, 1990),
Mohammad Shaban Vakil, editor of Al
Safa (April 23, 1991) and most recently,
Syed Shujaat Bukhari (June 14, 2018).
Some, like Sodhi, have been caught in
crossfire. Maulana Mohammad Sayeed
Masoodi, a member of the Indian
Constituent Assembly, shot inside his
Ganderbal residence on December 13,
1990, when he was in his nineties, too
had a journalistic background but it was
overshadowed by his high social and
political profile.
The selective murders early on did
evoke fear. The militants sent a mes-
sage—either follow them or perish. The
names of National Conference patriarch
Farooq Abdullah and other political
leaders disappeared from newspapers
and they were actually filled with adver-
tisements by those severing links with
them. Veteran journalist Sofi Ghulam
Mohammad, editor of popular daily
Srinagar Times, who passed away in
2009, once told this writer in an inter-
view that while the print-line of the
newspaper had his name, he had no say
in deciding the contents.
The militants banned mourning of
those shot by them. The situation at that
time is best explained by a small inci-
dent. A large number of admirers of
Doordarshan director Lassa Kaul want-
ed to express grief over his death while
steering clear of the wrath of the mili-
tants. They circumvented the militants’
ban by taking out a procession and wav-
ing placards blaming the then governor,
Jagmohan, for the murder!
Since then, there has been significant
transformation of the scenario. Sections
of the media have united and coura-
geously stood up against several mili-
tants’ diktats and actions like the call for
the imposition of burqa, attacks on
tourists and the expulsion of non-state
subject (those not permanent residents
of JK) labourers from the Valley. At
the same time, they have reported the
death of civilians in crossfire or at the
hands of the security forces and the
activities of the separatist camp in keep-
ing with the demands of their job.
W
ell-entrenched media houses
have felt obliged to address
the financial and professional
needs of their staff in Kashmir. They
have laid emphasis on personal security
to the extent of training them how to
open an envelope sealed with tape or
glue or in any other manner. This was a
fall-out of the murder of photographer
Mushtaq Ali in a “parcel bomb” attack;
he was seriously injured on September
7, 1995, and succumbed to his injuries
three days later.
The problems, nevertheless, pertain
to media houses which are not financial-
ly viable and look for a transparent
advertisement policy of state and central
governments and their low-paid staff.
The truth is that in a conflict situa-
tion, other people can only advise as the
PCI has done now and it is left to an
independent journalist to determine his
risk assessment. He must be like a
Congo journalist who said after the
murders of his professional colleagues:
“Our life expectancy is 24 hours—
renewable.”
—The writer is Editor of Border
Affairs, a quarterly journal on India’s
border states and neighbouring countries
INNOCENT VICTIMS
Journalists at a silent march protest the killing
of Shujaat Bukhari in Srinagar
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
freepresskashmir.com

34. States/ Karnataka
34 October 15, 2018
EPORTS of people merely
standing around as
bystanders or worse, tak-
ing pictures, instead of
coming to the aid of road
accident victims are a daily
affair in the media in India. Often, it is
the fear of getting embroiled in civil or
criminal liabilities that keeps them from
offering a helping hand, while at other
times, it is plain apathy, as happened in
Saharanpur, Uttar Pradesh, earlier this
year, when three policemen who arrived
in response to an emergency call
refused to take two boys to hospital as
they didn’t want any bloodstains on
their patrol vehicle.
Not anymore, at least in Karnataka,
which has now become the first Good
Samaritan state in the country as
President Ramnath Kovind last week
gave his assent to a bill that is aimed at
encouraging citizens to rush medical aid
to help victims of road traffic accidents
without the unnecessary fear of making
the rounds of police stations and the
court halls. The bill will also make it
mandatory for private and government
hospitals to provide medical care as
soon as the victims are brought there.
The Karnataka Good Samaritan and
Medical Professional (Protection and
Regulation during Emergency
Situations) Bill, 2016, was piloted by
current Assembly Speaker Ramesh
Kumar when he was the health minister
in the 2016 assembly session. “The
whole objective was to save lives within
the golden hour and reduce the inci-
dents of accidental deaths,” says a senior
government health official who was part
of the exercise to draft the Bill.
The persons who are on the spot at
the time of the accident can play a key
role in rushing victims to the nearest
medical centre but they have fears of
harassment by police or legal proceed-
ings. “We hear sad stories from victims
who say they are lying on the road with
Abillaimedatencouragingcitizenstorushmedicalaidtohelpvictimsoftrafficaccidents
withoutthefearofmakingtheroundsofpolicestationsandthecourthallsgetspresidentialnod
By Stephen David in Bengaluru
ONLOOKERS ALL
Fear of getting embroiled in long civil of
criminal cases keeps people away from
coming to the aid of accident victims
R
Good Samaritan State