STORMY WEATHER How long will india's most trusted institute be able to withstand continuing assaults?

1. NDIA EGALL
` 100
I
www.indialegallive.com
May 21, 2018
HowlongwillIndia’smosttrustedinstitutionsbeableto
withstandcontinuingassaults?
STORMY
WEATHER
Police reforms:
Backward march!
VIP squatters:
Booted out
DrUpendraBaxi
onimpeachment
MGDevasahayam
oncredibilitycrises

3. HAT the invocation of Karnataka Pride
should have become a focal point during
the surcharged election campaign should
hardly come as a surprise to anybody
familiar with the development of linguis-
tic states in independent India, and the
constitutional tug-of-war between ideologies which
seek a strong centre with the states as mere
irritants, and those favouring stronger state rights
and autonomy.
Actually linguistic tensions, starting in the
1930s when the idea of a new Indian nation was
taking shape under Congress guidance, have been
marked by bloodshed, mass agitations, self-immo-
lation, student protests, police bullets, repression,
anti-Hindi mass protests until the centre bent and
compromised. These mass struggles, many of
which matched the fury of the national independ-
ence movement against the British, ultimately led
to the creation of Tamil, Telugu, Kannada,
Malayalam, Marathi, Gujarati, Odia-speaking
regional identities.
You just cannot wish away sub-cultural national
pride in a diverse land like India. And the flagship
of this social phenomenon is language. It bonds. It
unifies. It soothes. It comforts. There is a Tamil
saying that even if you hurl abuse at the gods in
Tamil, they will forgive you. I am sure the people of
Kannada have a similar sentiment. So it is no sur-
prise that, taking a leaf from their Tamil brethren
next door, the Karnataka Congress under
Siddaramaiah wants to unfurl its own state flag. It
is a matter for the record that when Hindi
was sought to be imposed on the South, Dravidian
parties actually threatened to launch an independ-
ence movement in 1968 after flying their own flag
in Coimbatore.
The government at the centre was in a schizo-
phrenic constitutional quandary. On the one hand,
it espoused liberal federal principles (“cooperative
federalism”) based on the instruments of accession
of independent states under which India became a
union. And yet, India’s liberal leader, Nehru, who
swore by the doctrines of the Fabians and
Utilitarians, scorned “linguisticism” which, he
believed, could tear asunder the newly formed and
still fragile nation.
Yet, wisdom seemed to have gotten the better of
oppression and repression, as successive Congress
governments realised that Hindi Raj—the linguis-
tic and cultural domination of the rest of the coun-
try—by the heartland would only exacerbate rather
than curb fissiparous tendencies. In fact, by the
time Rajiv Gandhi came to
power, intra-national treaties—pacts and accords—
with rebellious regional leaders had become the
order of the day: Compacts with Kashmir leaders,
with the Nagas, with “Gorkhaland” agitationists, to
name a few.
The Sangh Parivar has remained mostly
opposed to the idea of diluting central authority.
Hindi Raj, as expressed by Keshav Baliram
Hedgewar, VD Savarkar, Deendayal Upadhyaya
and MS Golwalkar, is the only supreme
national credo to create a unified resurgent
Aryavart. Regional and anti-Hindi aspirations
are, logically, anti-national.
But the tide of history, as the Congress realised,
is not easy to stem, even with brute force. Naren-
dra Modi recognises this when he dons cattle head-
gear while campaigning for votes in the beef-eating
North-east or speaks of Gujarati “asmita” (pride) in
his own home state or of Karnataka pride in
Karnataka in order to out-flag Siddaramaiah’s
chauvinistic appeal. Here is a man clearly pander-
ing to aspirations which are ideologically anathema
to the RSS ideology of Hindi-Hindu-Hindustan.
But wherever convenient, in order to make sure
that he remains secure with his base, Modi will
back with all the fervour at his command his
Hindutva hawks’ condemnation of regional aspira-
tions or autonomy for Kashmir as anti-national,
subversive and seditious. This is not very diff-
erent from how the Congress under Nehru viewed
regional-linguistic movements or even Sheikh
Abdullah’s mass movement for autonomy, now
referred to as “azaadi”.
The architect of the Constitution, Baba
CHANGING TIMES
Inderjit Badhwar
Letter from the Editor
T
| INDIA LEGAL | May 21, 2018 3
Ontheonehand,
thegovernment
espousedliberal
federalprinciples.
Andyet,India’sliber-
alleader,Nehru,
whosworebythe
doctrinesofthe
Fabiansand
Utilitarians,scorned
“linguisticism”
which,hebelieved,
couldtearasunder
thenewlyformed
andfragilenation.

4. 4 May 21, 2018
Ambedkar, saw far into the future and actually built
huge flexibility into the Constitution which would
allow the centre to deal in various ways with states
according to their particular circumstances, geogra-
phy and ethnicity. Most people don’t realise that the
“special status” for Kashmir isn’t really all that spe-
cial. Article 370 is part of the Indian Constitution—
it is the window through which Indian laws apply to
Kashmir; the umbilical cord that binds the state to
the Union.
It is also not “special” because it derives from the
huge latitude given to the centre for admitting new
states (after independence was won) into the Indian
Union. Article 2 of the Constitution states unam-
biguously: Parliament may by law admit into the
union, or establish, new states on such terms and
conditions as it sees fit [my italics]. Further, under
Article 3: Parliament may by law a) form a new
state by separation of territory from any state or by
uniting two or more states or parts of states; b)
increase the area of any state; c) diminish the area
of any state; d) alter the boundaries of any state; e)
alter the name of any state.
Even if you do choose to call the centre’s rela-
tionship with Kashmir “special”, it is not really that
unique either. Under powers conferred to
Parliament under Articles 2 and 3, the National
Development Council (NDC) has accorded 11 states,
out of 28, the status of “Special Category States”
(SCS) to target the funds flow for better balanced
growth. They are the seven states of the North-
Eastern region (Arunachal Pradesh, Assam,
Manipur, Meghalaya, Mizoram, Nagaland and
Tripura), Sikkim, Jammu & Kashmir, Himachal
Pradesh and Uttarakhand. Other states are referred
to as General Category States (GCS).
The SCS are highly dependent on grants from
the Union government for meeting their financial
requirements. These states show a revenue surplus
position because any expenditure that they
make on creating assets out of grants from the
centre is not treated as revenue expenditure. This
is contrary to the existing accounting standards
which treat all expenditure from grants as rev-
enue expenditure.
Manipur, Nagaland, Sikkim and Uttarakhand
have a fiscal deficit which is higher than 3 percent
(but less than 6 percent) of their GSDP and the
13th Finance Commission had indicated that they
have to make efforts to reduce the fiscal deficit to 3
per cent by 2013-14. Jammu and Kashmir and
Mizoram have higher fiscal deficits and require con-
certed efforts at reducing their debt stock to achieve
targets set by the 13th Finance Commission. The
other states—Arunachal, Meghalaya, Assam,
Tripura and Himachal—have a fiscal deficit which is
less than 3 percent of GSDP and therefore need to
maintain their position to achieve the targets set
out by the 13th Finance Commission.
Although the 12th Finance Commission recom-
mended that all states (including Special Category
States) should be permitted to borrow from the
open market at market rates, the special dispensa-
tion given to Special Category States continues for
external loans. In the case of the externally aided
projects to SCS, the Union government treats 90
percent of the amount borrowed as a grant and only
the remaining 10 percent is a loan. [Source of last
three paras: Indian Economic Service.]
Further, Article 371 contains special provisions
for Maharashtra and Gujarat establishing special
development boards and priorities for technical
education and training. Article 371-A, concerning
Nagaland (in language similar to that pertaining
WestBengal’s
MamataBanerjeeis
spearheadingan
incipientmovement
fora“Federal
Front”tocombat
andcontainwhat
sheseesasthe
BJP’sideologyofa
homogenous,uni-
tarianandmajori-
tarianIndia.Biharis
joiningthedemand
forspecialstatus
andsoisOdisha.
Letter from the Editor
SANGH’S
ATAVIST IDEAL?
(L-R) Keshav Baliram
Hedgewar, VD
Savarkar, Deendayal
Upadhyaya and
MS Golwalkar all
believed in Hindi Raj
and a unified
resurgent Aryavart

5. | INDIA LEGAL | May 21, 2018 5
to Kashmir), provides that no act of Parliament
shall apply to religious or social practices of the
Nagas, Naga customary law and procedure,
administration of civil and criminal justice involv-
ing decisions according to Naga customary law
and ownership or transfer of land and its
resources “unless the legislative assembly of
Nagaland by a resolution so decides”.
This is by no means a comprehensive list which
includes Goa and the erstwhile Andhra Pradesh.
But it indubitably indicates that aspects of autono-
my and federalism are neither alien to nor enemies
of the Indian State or Constitution. And regional
satraps like Siddaramaiah and the TDP’s N Chan-
drababu Naidu are not out of line in asserting
regional pride and demanding special provisions
for their states.
As the BJP appears to be on an over-centralisa-
tion drive, the counter forces will only accelerate
political moves to decentralise. The demands from
the southern states are already becoming an under-
girding political principle of opposition unity. Even
more interesting, West Bengal’s Mamata Banerjee is
spearheading an incipient movement for a “Federal
Front” to combat and contain what she sees as the
BJP’s ideology of a homogenous, unitarian, and
majoritarian India. Bihar is joining the demand for
special status and so is Odisha. Ironically, politically
in this regard, Kashmir can no longer be singled out
as the bad boy of the “appease us” brigade.
Even though BJP leaders may play the “asmita”
card when it suits them locally, at a national level,
the trend is worrisome for them. While the Cong-
ress has produced regional leaders of gigantic, icon-
ic standing and following—K Kamraj, C Rajagop-
alachari, Sucheta Kriplani, ND Tiwari, Rajkumari
Amrit Kaur, Margaret Alva, KM Munshi, Morarji
Desai, GK Moopanar, Vayalar Ravi, K Karunakaran,
Vallabhbhai Patel, Rajendra Prasad, BC Roy,
Jagannath Pahadia, Madhavsinh Solanki, YS
Rajasekhara Reddy, Biju Patnaik, Dr YS Parmar,
Mufti Mohammed Sayeed, Motilal Vora, YB
Chavan, Pratap Singh Kairon, Bansi Lal—sons and
daughters of the soil capable of handling and guid-
ing regional aspirations, the BJP’s appeal, except for
anti-Congressism and ideological religious polarisa-
tion, has been its heartland mobilisation.
The upshot of current trends was summed up by
Garga Chatterjee in what is perhaps the most origi-
nal and prescient piece I have read on the subject.
He wrote:
“The distance between West Bengal and the
Dravidian states is more psychological than geo-
graphical. In the Dravidian narrative, the ‘north’ is
larger than north itself. The east too becomes ‘north’
in a narrative where north and south make up the
whole domain. But no narrative fully covers reality.
The east exists, often in a similar ideological stance
against the north. The south doesn’t exist in that
narrative. But if one looks at the map of non-BJP
states in the Indian Union, it is the south and the
east that form a continuous belt that prevents the
spilling over of the [Sangh Parivar] Hindi-Hindu-
Hindustan ideology into the holy waters of the Bay
of Bengal and the Indian Ocean.
“This continuity is not incidental. This is the
zone of the politics of federalism. This is the zone
whose absence would have created a Hindu rashtra
called Hindustan with Hindi as its national lan-
guage in 1947. This is the zone whose presence cre-
ated the flawed but still nominally federal demo-
cratic entity called the Indian Union as it exists. It is
in this context that the proposed Federal Front dis-
cussions in Kolkata on March 19 between
Trinamool supremo and West Bengal chief Mamata
Banerjee and Telangana chief minister and TRS
supremo K Chandrasekhar Rao assume immense
significance. A leader from the south is talking to a
leader from the east without any Delhi party’s medi-
ation on forming a political front based on the prin-
ciples of federalism: a federal front. Whatever be
the future of this proposal, this already is a sign of
changing times.”
And all within the ambit of the flexibility of the
Indian Constitution and established precedents.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
CHAMPIONS OF
FEDERALISM
Andhra and Karnataka
CMs N Chandrababu
Naidu and
Siddaramaiah (right)
are well within their
respective rights in
demanding
special provisions for
their states

6. ContentsVOLUME XI ISSUE 27
MAY21,2018
OWNED BY E. N. COMMUNICATIONS PVT. LTD.
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309
Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411
e-mail: editor@indialegalonline.com
website: www.indialegallive.com
MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,
Mumbai-400058
RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar,
Ranchi-834002.
LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,
Lucknow-226001.
PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak,
Opposite Lalita Hotel, Patna-800023.
ALLAHABAD: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001.
Editor Inderjit Badhwar
Senior Managing Editor Dilip Bobb
Deputy Managing Editor Shobha John
Executive Editor Ashok Damodaran
Contributing Editor Ramesh Menon
Deputy Editors Prabir Biswas
Puneet Nicholas Yadav
Associate Editor Sucheta Dasgupta
Staff Writers Usha Rani Das, Lilly Paul
Art Director Anthony Lawrence
Deputy Art Editor Amitava Sen
Senior Visualiser Rajender Kumar
Photographers Anil Shakya, Bhavana Gaur
Photo Researcher/ Kh Manglembi Devi
News Coordinator
Production Pawan Kumar
CFO
Anand Raj Singh
Sales & Marketing
Tim Vaughan, K L Satish Rao, James Richard,
Nimish Bhattacharya, Misa Adagini
Circulation Team
Mobile No: 8377009652, Landline No: 0120-612-7900
email: indialegal.enc@gmail.com
PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd
andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80,
PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany
languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor
permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof
writersinthemagazinearenotnecessarilyendorsedby
ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe
returnofunsolicitedmaterialorformateriallostordamagedintransit.
AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd.
Editor (Content & Planning) Sujit Bhar
Senior Content Writer Punit Mishra
(Web)
6 May 21, 2018
A Storm Brews
The glacial pace of judicial action
imperils both its independence and the
constitutional republic, writes international
law scholar Upendra Baxi. Retired
senior civil servant MG Devasahayam
believes fast-moving controversies have
placed the very institution of democracy
in a serious crisis
LEAD
14
Overstaying their Welcome
A top court bench has denied government accommoda-
tion to former chief ministers, saying that the properties
belong to the people of the country
SUPREMECOURT
22
Living Life King-Size
The CMs of Uttar Pradesh have led a life of luxury and, in
some cases, spent crores in constructing these “palaces”
25
Upendra Baxi MG Devasahayam

7. REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
International....................49
Media Watch ..................50
| INDIA LEGAL | May 21, 2018 7
SPOTLIGHT
FOCUS
Backward March
Time has stood still for the police in India as a report highlights the
dire need for reform and for the judiciary to crack the whip
30
Queen of Controversy
In her latest avatar as Lieutenant Governor of Puducherry, ex-cop Kiran Bedi has
the Union Territory government up in arms with her heavy-handed moves
40
43
Three years after it was entrusted with the task of unravelling the Vyapam scandal in
Madhya Pradesh, the CBI is still groping in the dark
Death of a Scam
GLOBALTRENDS
46May’s Messy
Move
CORRIGENDUM
The United Kingdom is facing a fresh
immigration scandal due to a reckless
policy put in place by its prime minister that
has hit many Indian professionals
Cover Design:
ANTHONY LAWRENCE
Cloud on Companies
The GST Council proposes that GSTN be given back to the gov-
ernment as there are concerns over private entities leaking details
ECONOMY
34
PROBE
Authorised
Loot
The government continues to
shell out as much as three
times the normal fares for its
employees availing of LTC
through authorised agencies
32
Desperate Slugfest
As the Congress and
the BJP brought the
election campaign
rhetoric to a new low,
the Karnataka poll
commissioner is saddled
with a pile of complaints
38
Dens of Vice
Increasing incidents of
rape and molestation in
shelter homes reveal
the revolting exploita-
tion of children
28
Love No Crime
In many far-reaching judgments, the apex court has taken a liberal
view of couples wanting to live together and supported them
26
A wrong picture of Hon. Rajiv Sharma, a
judge of the Uttarakhand High Court (cor-
rect picture below), was inadvertently pub-
lished with the story, “Out of the Hell Hole"
(May 14, 2018 issue). The error is regretted.
STATES

8. 8 May 21, 2018
“
RINGSIDE
“I am nalayak
because I regu-
larised colonies;
I am nalayak
because my govern-
ment gives wheat at
`1 a kilo….”
—MP CM Shivraj
Singh Chouhan
on Kamal Nath call-
ing him an unwor-
thy friend
“I can only confirm that
no action has been ta-
ken against MLA Kul-
deep Singh. But I can-
not tell why no action
has been taken so far.”
—BJP spokesperson in
UP Rakesh Tripathi on
Kuldeep Singh Sengar,
Unnao rape accused
“Things that shouldn’t
have happened are hap-
pening. Things that
haven’t happened so far
are also happening.”
—SC judge Justice Kuri-
an Joseph on Uttara-
khand CJ KM Joseph’s
proposed elevation to SC
“If you are a
Muslim and want
Jinnah’s portrait on
your walls, then
this is a huge insult
of your forefathers
who had rejected
his ideology. You
are an Indian today
because of them.”
—Union minister V
K Singh on the pres-
ence of Jinnah’s por-
trait in AMU
“This was a horrible
one-sided deal that
should have never ever
been made. It didn’t
bring calm, it didn’t
bring peace, and it
never will.”
—Donald Trump on the
nuclear deal with Iran
“It is truly heart-
breaking when a
family saves for
years to realise their
dream of visiting
Kashmir and while
they are here they
face the worst
nightmare. I have
no words strong
enough to condemn
this tragic incident
or even begin to
condole the family.”
—J&K CM Meh-
booba Mufti on the
death of a young
tourist from Chen-
nai due to stone pelt-
ing in Kashmir
“I want to tell Kashmiri youth that Azaadi isn’t possible.
It won’t happen. Don’t get carried away unnecessarily.
Why are you picking up weapons? We will always fight
those who seek Azaadi, those who want to secede. (Azaadi)
is not going to happen, never.”
—General Bipin Rawat in an interview to The Indian Express
“I have great admi-
ration for Gurudev
and I got a little
emotional while pr-
aising the great
man.... I cannot re-
collect in my consc-
ious memory whet-
her I called Tagore
Sir or not, but what
happened was defi-
nitely inadvertent.”
—Union minister
Dr Harsh Vardhan
after he referred to
Tagore as “Sir” in
his speech
“Well, it depends... it
depends on how well
the Congress does in
the election. I mean,
if it emerges as the
biggest party, yes….”
—Congress president
Rahul Gandhi on
whether he is willing
to become PM
“Modiji is proud
that he can make
speeches well. I
agree he is a good
orator. He speaks
like an actor. If
speeches could fill
the country’s stom-
ach, I wish he gave
more speeches.”
—UPA chairperson
Sonia Gandhi at an
election rally
in Karnataka

10. In the waning days of the campaign for
Karnataka, nothing seems to have miffed
the apparently unflappable Narendra Modi
more than Rahul Gandhi’s remark, in
answer to a hypothetical question, that his
becoming prime minister was a possibility
if the Congress emerged as the largest
party in the 2019 general election.
Rahul’s statement was not an asser-
tion but a statement of probability modi-
fied by circumstances. Modi’s spin doc-
tors believed that this was the young
Congress leader’s fatal political gaffe a la
Mani Shankar Aiyar during the last Gujarat
elections, which opened the Congress
campaign to a series of low blows from
Modi. These strategists believed Rahul’s
statement would lead to howls of protests
from other opposition leaders like Mamata
Banerjee and Mayawati who are also look-
ing at the prime ministerial prize should
opposition unity deal a defeat to Modi
in 2019.
But all the big players from the opposi-
tion—and their chief backroom strategist
Sharad Pawar—remained silent. This is
partly because Pawar, who is interested in
cobbling a future alliance with the
Congress in Maharashtra, is also playing
a lead role in convincing opposition lead-
ers that this party must be part of any
large opposition alliance. So, faced with a
deafening silence, Modi had no option but
to take it on himself to roar like a lion
about the gall, arrogance and “ego” of
Rahul to declare himself the next PM—
especially when NaMo was basking in the
glory of being declared by Forbes maga-
zine as the ninth most powerful person in
the world. How dare “Pappu” challenge
this status?
10 May 21, 2018
An inside track of
happenings in Lutyens’ Delhi
That the BJP speaks in different tongues
in different regions of India is no secret.
Beef and gau raksha are no campaign
issues in Goa or the North-east where
Hindi heartland-style rough-and-tumble
Hindutva politics has only a small role to
play. As the Karnataka election wound up
and the stage was set for other state elec-
tions in preparation for the finalé in 2019,
the hydra-headed Hindutva politics, how-
ever, did appear in several shapes and
forms in different
parts of the country.
One such is
namaaz politics.
While the use of
public places for
conducting religious
ceremonies and
processions is an
issue for frank
debate and also for
legitimate legal chal-
lenges, the open
confrontation of
Sangh Parivar
activists with the
faithful at peaceful
prayer in traditional places is a new phe-
nomenon, as witnessed in Gurgaon,
Haryana. Fake news also reared its ugly
visage in this controversy when an old
photo of Muslims offering prayers at Delhi
railway station (as they have done for
decades) was splashed across social
media as Muslims blocking a train from
Tamil Nadu carrying students to appear
for the NEET exams.
Now a group of 11 former civil servants
has come forward and written a letter to
Depinder Singh Dhesi, the chief secretary
of Haryana (with copies endorsed to the
home secretary and the DGP), drawing
his attention to the ramifications of the
issue and asking him to intervene so that
vigilante groups are kept in check. The
signatories include Sundar Burra, former
secretary, Maharashtra; Dr MA Ibrahimi,
former chief secretary (rank), Bihar; K
Sujatha Rao, former health secretary;
Aruna Roy, former IAS officer; and
Ardhendu Sen, former chief secretary,
West Bengal.
Observers are asking why Muslim BJP
leaders and spokesmen like Shahnawaz
Hussain are mum on this issue. After all,
Hussain traipsed across Tripura during the
recent state election canvassing Muslim
votes for his party even though militant
Hindutva champion Vinay Katiyar had
said: “Muslims should not even be living
in this country, they should go to Pakistan
or Bangladesh.” In contrast, Hussain
called Muslims a “patriotic force” and the
BJP a “secular party”. He said thousands
of Muslims had been killed while perform-
ing namaaz in Pakistan while no such inci-
“PAPPU’S” GAUNTLET
SHAHNAWAZ’S DIFFERENT STROKES

11. | INDIA LEGAL | May 21, 2018 11
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
That Prime Minister Narendra Modi
seldom lets facts come in the way of
spinning a good yarn is something
well-known. So is his habit of bluster-
ing his way through the trickiest of
situations. It now appears that even
journalists tasked with covering him
or writing about him are not spared
this affliction.
It was only last week that a “news
clipping” attributed to The Times of
India went viral on social media after
a story filed by its correspondent
covering Modi’s China visit blazed a
trail on social media with the head-
line “Modi, Xi to mate six times in 24
hours”. But before its editors could
be served a summons from the
PMO, it was clarified that the news
item was a photo-shopped parody of
the original one which had actually
read: “Modi, Xi to Meet Six Times In
24 Hours.”
And now comes the stodgy PTI,
widely recognised as the last word
as far as accuracy is concerned.
Covering Modi’s campaign in poll-
bound Karnataka, the agency put out
a story datelined Vijayapura on May
8, saying the PM had accused the
Congress of pursuing a policy of
divide and rule. “Congress believes
in the policy of divide and rule…
divide on the basis of caste and reli-
gion, make brother fight brother.” But
the agency’s headline to the story
read: “Modi pursuing divide and rule
policy: Modi.” Last heard, its editors
on Parliament Street were waiting for
the dreaded summons.
MODI VERSUS NAMO?
dent had occurred in India. He also
boasted that as the civil aviation min-
ister in the previous NDA govern-
ment, he had started direct Haj
flights from Guwahati to Saudi Arabia
for Muslim pilgrims. Haj flights and
subsidies are, incidentally, anathema
to Hindutva champions. So why are
Hussain’s lips sealed now? As one
veteran political analyst quipped:
“Like ice-cream, Hindutva comes in
many flavours.”
The launch of our neighbour’s first com-
munications satellite, named after its revo-
lutionary founder, Mujibur Rehman, cour-
tesy the Kennedy Space Centre (KSC) in
Florida, propels Bangladesh into Space
Age. It is powered by the Falcon-9 rocket.
But this latest KSC feat has New
Delhi’s South Block strategists worried.
Observes science reporter and author
Pallava Bagla: “This should be worrying
for India since now there will be commer-
cial competition from a neighbour who
could provide competitive pricing for satel-
lite-based services.
Till now, most of the satellite-based
services for the region were hired by
India’s neighbours on Indian satellites.
India will not only lose out on earnings but
with a competitor in the offing, pricing of
Indian satellite-based services may also
take a hit.
Thales Alenia, which is providing a
kind of a turnkey offer of end-to-end serv-
ices, says in a statement that “once
Bangabandhu satellite-1 is operational,
Bangladesh will be autonomous in terms
of telecommunications and broadcasting
services, being able to offer communica-
tions services to many foreign countries
such as Nepal, Myanmar or Bhutan under
its coverage area”.
ISRO RED-FACED?
Delhi
Durbar
Politicians exaggerating their educa-
tional qualifications in election affi-
davits is nothing new in Indian poli-
tics. None less than Narendra Modi
was embroiled in a controversy soon
after he became prime minister in
2014 when questions were raised on
the genuineness of his BA degree
from Delhi University and MA degree
in “Entire Political Science” from
Gujarat University. Modi’s close confi-
dante and Union minister Smriti Irani
too drew flak when her claims of
having a degree from the prestigious
Yale University proved to be a
blatant lie.
However, the BJP’s chief ministeri-
al candidate in poll-bound Karnataka,
BS Yeddyurappa, is scripting a new
tale that could baffle Modi and Irani
with its ingenuity.
In his election affidavit for the May
12 assembly poll that he is contest-
ing from his traditional Shikaripura
seat, Yeddyurappa mentions his edu-
cational qualification as “Pre
University Course” from Government
College, Mandya.
In Karnataka, clearing PUC is the
equivalent of passing Class 12.
Interestingly though, Yeddyurappa’s
election affidavit of 2013, which he
had contested from Shikaripura after
breaking away
from the BJP and forming his own
outfit—the Karnataka Janata Paksh—
mentions his educational qualifica-
tions as BA from Bangalore
University. Yeddyurappa’s election
affidavit of 2014, when he contested
and won the Lok Sabha elections
from Shimoga, too, did not mention
his BA degree. One wonders if the
Lingayat strongman has gone in for
some course correction in the past
15 years!
GOING BACK TO
SCHOOL!

12. The Supreme Court slammed
the Archaeological Survey of
India (ASI) for what it felt was
gross failure on the part of the
organisation to protect the Taj
Mahal from rising pollution. Taking
serious note of the blue and green
patches on the heritage monu-
ment, the apex court felt that there
was gross dereliction of duty on
the ASI’s part in handling the Taj
and maintaining its beauty. It
asked the centre to think of some
other agency which could be
asked to protect and preserve the
World Heritage Site and “take ASI
away from Taj”.
The centre said it was thinking
of hiring international experts to
do the job. The UP government
also told the court that protecting
the Taj was top priority.
The argument put up by the
counsel appearing for the ASI was
not accepted by the Court. He
said that the ASI was doing its
best to ensure that there was no
harm to the monument and the
concerned patches had formed
due to breeding of insects on the
Yamuna river bed.
The Court also observed that
instead of being shut, the industri-
al units around the 17th century
monument had only mushroomed
in the past several years despite
the Court expressing concerns
over damage and destruction to
the Taj way back in 1996.
Think of another
agency to protect
the Taj, govt told
The Supreme Court observed that it is time
for the Himachal Pradesh government to
crack the whip on errant officials who looked
the other way when illegal constructions
mushroomed in the state. It even asked for the
names and designations of such officers who
were posted at the time in the hill towns of
Himachal Pradesh.
A two-judge bench hearing the case sug-
gested to the advocate general of the state that
four-five such officials should be sacked to
send a strong message.
The bench, while reminding the state that
the entire demolition exercise carried out at
several hotels in Kasauli had to be completed
within 15 days, sought a deadline after the
advocate general furnished a status report
which said that the exercise was going on in
full throttle. However, it was informed by senior
advocate PS Patwalia, who is helping the Court
as amicus curiae, that the Himachal Pradesh
High Court was hearing the matter on illegal
constructions in Dharamsala and McLeod-
ganj, besides Kasauli.
Courts
12 May 21, 2018
Sack officials in Kasauli to send a message, says SC
The apex court recently said that courts can
refer to parliamentary committee reports
while deciding an issue. However, it also said
that such reports cannot be challenged in a
court of law, because that would affect the
privilege of elected members to speak their
minds freely in the House.
The top court also said that such reports
are not conclusive, hence the contents have to
be proved in the courts independently.
The five-judge constitution bench, com-
prising Chief Justice Dipak Misra, Justice AK
Sikri, Justice AM Khanwilkar, Justice DY Chan-
drachud and Justice Ashok Bhushan, said:
“The parliamentary standing committee looks
into the formation of laws. Since these com-
mittees fall under the public domain, there is no
way it is out of the purview of judicial review.”
The issue had come to light while the
Court was hearing a PIL raising doubts about
the usefulness of a vaccine for cervical cancer
produced by two drug companies. The petition-
er, Dr Kalpana Mehta, had referred to a parlia-
mentary committee report on this and her ref-
erence was challenged.
Mehta had earlier said that the HPV vaccine
produced by two drug companies for treating
cervical cancer was “unverified and haz-
ardous” by relying on the 72nd report of the
Parliamentary Standing Committee on the
Ministry of Health and Family Welfare.
The drug company had opposed the con-
tentions of Mehta by saying that these reports
were only “advisory in nature” and may or may
not be approved by Parliament and thus could
not be trusted by the higher courts in deciding
the matter.
The bench had refuted the contentions of
the drug company by observing “it may not
look at the committee report for fault-finding
but can rely upon the same for deciding an
issue before it. That is the whole purpose of
putting the report in the public domain”.
Parliamentary
committee
reports okay
for reference:
apex court

13. The apex court overturned the Calcutta High
Court’s April 12 order of a stay on the West
Bengal panchayat polls and directed that elec-
tions be held as per schedule on May 14. It was
reacting to a plea filed by the West Bengal State
Election Commission (SEC) challenging the High
Court’s order. The Supreme Court also ordered
that while there have been complaints of the rul-
ing TMC not allowing nominations to be filed by
the BJP and CPI(M) candidates in several con-
stituencies, the SEC shall not publish the poll
results in those constituencies till the top court
allows it, which is likely to be decided on July 3.
SCfinalisespanchayatpolls
Bollywood star Akshay Kumar has
triggered a controversy over auc-
tioning of the uniform he wore as the
lead actor in the film Rustom, based
on the famous case of naval officer
KM Nanavati. Eleven serving defence
officers and eight others have sent
legal notices to Kumar and his wife,
Twinkle, for hurting the sentiments of
armed forces personnel, both retired
and serving. The notice says that it
was wrong on the part of the actor
to claim that the uniform was the
original one worn by Nanavati. A
copy of the notice has also been
sent to the concerned auction house
and the Union defence minister. They
have requested her to intervene and
initiate action against the actors and
stop the auction. The notice also said
that the uniform could be misused by
anti-nationals.
Kumar has put the uniform under
the hammer—the bid is still on and
will end on May 26—to help an NGO
that deals with animal rescue and
welfare. He says that the auction
was being done for a “good cause”
and he did not do “anything bad”.
While listening to a matter on
admissions to Kerala medical
colleges, Justice Arun Mishra (the
other judge on the bench being
Justice UU Lalit) of the apex court hit
out at the lawyers: “When a judg-
ment is passed, you go to this TV,
that TV and discuss court proceed-
ings. Every day this is happening.
Who is spared in this court? Every
judge is targeted. You people are
destroying this institution. If this
institution is destroyed, then you
people won’t survive.” The comment
came when a group of senior
lawyers kept pressing their case.
Legal notice to
Akshay Kumar
SC judge pulls up lawyers over comments
The Railways can’t shy
away from accepting
responsibility for passengers
dying or suffering injuries
while boarding or de-boarding
trains, the Supreme Court
ruled. It must pay compensa-
tion in such cases as these
were “untoward incidents”,
the Court said.
The judgment is signifi-
cant considering that several
high courts have given verdicts on
the issue which are at cross purpos-
es with one another. While some
have ruled that death or injury during
boarding or de-boarding is only a
“self-inflicted injury”, which absolves
the Railways from any responsibility
as per Section 124A of the Railways
Act, 1989, others have asked the
public transporter to own up and pay
compensation.
Passenger safety: Rlys to compensate
| INDIA LEGAL | May 21, 2018 13
—Compiled by India Legal team
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
The apex court ordered a probe into how for-
mer ISRO scientist Nambi Narayanan was
framed by the police so that it could fix
accountability and punish those responsible for
the horrendous deed that ended a career of a
good scientist. Narayanan was falsely implicat-
ed and arrested (on November 30, 1994) on
charges of espionage. The scientist was given a
clean chit by the CBI, but was sacked from his
job, and his career ended. He has been seeking
compensation and has so far received only `10
lakh of the `1 crore he had demanded.
Narayanan, when freed of charges, had filed
an appeal against the judgment of a division
bench of the Kerala High Court which had said
no action needed to be taken against the former
DGP and two retired superin-
tendents of police, KK Joshua
and S Vijayan, who were res-
ponsible for this
misdemeanour. CJI Dipak
Misra said that a substan-
tial amount of compensa-
tion is to be decided
later and no disciplinary
action would arise now.
ProbeforscientistNarayanan

14. Lead/ Supreme Court Upendra Baxi
Politics of
Embarrassment
Theglacialpaceofactionincreasinglyimperilsbothjudicialindependence
andtheconstitutionalrepublic
14 May 21, 2018

15. HERE has been more
heat than light over the
motion initiated by indi-
vidual members of seven
opposition parties reg-
arding removal proceed-
ings against Chief Justice
of India (CJI) Dipak
Misra. The motion was moved on April
20, 2018, disallowed by the Rajya Sabha
Chair on April 23, 2018, and challenged
as arbitrary and unconstitutional by two
Congress signatories in the Supreme
Court on May 7, 2018. The plea argued
that “the impugned order, in a cavalier,
cryptic and abrupt manner, shockingly
holds that none of the other charges are
made out without disclosing as to on
what basis this finding was returned”.
The petition was moved first before
the Justice Jasti Chelameswar-led bench
which adjourned the hearing till the
next day. On May 8, a Constitution
Bench was convened, comprising the
five seniormost justices (discounting the
collegium justices, four of whom had
held a press conference on January 12,
2018). The substantive issues before the
Bench were never argued as senior
advocate Kapil Sibal, who was repre-
senting the petitioners, raised a thresh-
old point: How was the order constitut-
ing the bench made?
His essential argument was that even
when accepting that the CJI is a master
of the roster, an order under the rule-
making powers prescribes a five-judge
bench when a “substantial question of
law” (Article 145) is involved. The order
making such a determination should be
made available; when the Court asked
him to proceed on merits, Sibal
withdrew the petition, which was then
dismissed by the Court as withdrawn.
The political economy of speed charac-
terising the motion and its
withdrawal/dismissal is indeed amaz-
ing; perhaps an equally expeditious
judicial decision may also have greeted
the decision on merits.
Sibal is entirely right in claiming that
a citizen litigant is entitled to know
whether the bench was constituted by a
judicial order and if necessary, to con-
test it. And one hopes that the situation
is adequately clarified. On the other
hand, eminent lawyers have publicly
suggested that the argument on
merits could have well proceeded, inci-
dentally, also raising a challenge to a
judicial order.
If the CJI has the power to constitute
benches, being the master of the roster,
can his order be challenged on the
ground of natural justice whose venera-
ble and valuable maxim is that no
person shall be a judge in her cause?
Can one object to a bench of five other
seniormost non-collegium justices, other
than the four who had taken part in a
press conference on January 12, 2018?
Surely, it is unworthy to suggest that
the CJI passed any substantive instruc-
tions in his own favour. And it is con-
temptuous to say that the five-judge
bench will not decide in accordance
with its constitutional duties.
The situation warrants comparison
with judicial recusal. Recusal was ordi-
narily granted when the counsel men-
tioned that a judge should not hear a
matter; often, a judge would recuse her-
self on the ground of conflict of interest
and propriety. But in Subrata Roy
Sahara (2014), Justice JS Khehar
(speaking also for Justice Radha-
krishnan) ruled that while recusal is an
appropriate remedy when pecuniary
bias is demonstrated, there is a general
Third Schedule constitutional duty to
adjudge all cases and controversies com-
ing before the Supreme Court without
“fear and favour”.
T
BRIEF ENCOUNTER
The challenge to the Rajya Sabha Chair’s
dismissal of the impeachment motion against
CJI Dipak Misra (left) first came up for
hearing before Justice Jasti Chelameswar
| INDIA LEGAL | May 21, 2018 15

16. 16 May 21, 2018
Thus, a constitutional convention
was made subject to judicial review
process and power. In the 2016 NJAC
case, Justices Chelameswar and Adarsh
Kumar Goel even added that a recusal
would fall foul of the oath under the
Third Schedule to do justice without
fear or favour. Their Lordships further
referred to the “doctrine of necessity”, a
doctrine resting on the idea that neces-
sity knows no law. This is very sparingly
used to validate extra-legal/unconstitu-
tional acts by state authorities.
Its contemporary usage first occurred
in a dubious Pakistan decision by Chief
Justice Muhammad Munir in 1954
where he invoked the maxim of a me-
dieval British jurist, Henry de Bracton,
which said “that which is otherwise not
lawful is made lawful by necessity”.
What remains to be debated is the
extension of this doctrine in situations
suggesting an official bias to all justices
(say in matters of judicial appointments,
transfer of high court justices or other
matters concerning the judicial col-
legium). At the same time, if all justices
were to recuse, who then will decide the
matter? This was not a “result” legally
permitted, their Lordships ruled, by the
“doctrine of necessity”.
Similarly, the mere motion of
removal does not deprive the CJI of his
functions as a master of rolls. Nor does
the Constitution require a chief justice
(or any justice) to stand down during
the removal proceedings. Nor does any
question of propriety even arise when
the allegations against a justice are held
not to have been made out by the
Chairman of the Rajya Sabha or the
Speaker of the House. Any change in the
Judges (Inquiry) Act, 1968, which blue-
prints the procedures to be followed
in an inquiry for “proven misconduct”
against a judge would have now to
run the gauntlet of the basic structure
doctrine as developed by the Sup-
reme Court.
One hopes that this politics of judi-
cial embarrassment will now cease,
given that the incumbent CJI retires on
October 2 and any proceedings for
removal thereby become infructuous.
Among the urgent issues that remain
are the expeditious finalisation of the
Court-approved Memorandum of
Procedure, quick moves in filling all
judicial vacancies, and a sorely needed
workforce expansion of judicial services.
The glacial pace of action increasingly
imperils both judicial independence and
the constitutional republic. What Justice
Arun Mishra remarked from the Bench
as recently as May 10 is that not merely
daily media “discussion of court proceed-
ings is happening” but that “every judge
is targeted”. However, destruction of “this
institution” may also mean, he said, that
“you people won’t survive….” Modern his-
tory archives that the shining knights of
accountability may also be the unwitting
pioneers of destruction of residual insti-
tutional autonomy.
—The author is an international law
scholar, an acclaimed teacher and a
well-known writer
KapilSibalisentirelyrightinclaiming
thatacitizenlitigantisentitledtoknow
whetherthebenchwasconstitutedby
ajudicialorder.Andonehopesthatthe
situationisadequatelyclarified.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Lead/ Supreme Court/Upendra Baxi
“TheSupremeCourthasbecomeapoliticalfootball”
Top legal minds analyze on APN’s show, Mudda, two Congress MPs’ with-
drawal of a plea in the SC challenging the rejection of an impeachment
motion against CJI Dipak Misra by vice-president M Venkaiah Naidu
“The impeachment law states that
charges should be proven. One should
not proceed on assumption. The vice-
president’s decision was well within the
framework of the Constitution. Kapil
Sibal kept on harping that the CJI has
no roster power. The fact is that verdict
on the master of roster is yet to come.
The collegium should have found out
avenues to talk before washing dirty
linen in public.”
—Pradeep Rai, senior advocate, SC
“Kapil Sibal had nothing to argue with.
Why should questions be raised on the
bench? The CJI constituted the bench,
leaving out those who held the press
conference. What more does Sibal
want? How can he himself choose the
bench? This is outlandish. A judge is
a judge, and you can be heard by
any judge.”
—MC Dhingra, senior advocate, SC
“The Supreme Court has become a
political football. Sibal is seeking a dou-
ble-edged sword, and wants to keep
the CJI under pressure. Sibal is both a
politician and lawyer. He is now virtually
asking the Constitution Bench to recuse
itself… Where there is smoke, there is
fire. Of course, the Supreme Court has
become a political football. We support
an independent judiciary, but that does
not mean that we cannot be critical.”
—Inderjit Badhwar, Editor, India Legal
“The Congress is playing a dangerous
game. It did so in 1977 as well. This
time, it is attacking the Supreme Court.
What do Sibal and the Congress want?
What I understand is that they want to
drag just four judges in, again and
again. Are all judges worthless except
those four? Congress wants to keep up
pressure on judges.”
—Ashok Thakur, spokesperson, BJP

18. Lead/ Supreme Court MG Devasahayam
Credibility
CrisisOneofthemosthighlyregardedretiredseniorcivilservantsofthecountrybelievesthat
thefast-movingcontroversiessurroundingtheSupremeCourthaveplacedthevery
institutionofdemocracyinaseriouspredicament
DIFFICULT QUESTIONS: The four seniormost judges of the Supreme Court, (L-R) Justice Kurian Joseph, Justice Jasti Chelameswar,
Justice Ranjan Gogoi and Justice Madan B Lokur, address the media on January 12, 2018
UNI
18 May 21, 2018

19. N the second week of January
2018, four seniormost judges of
the Supreme Court “paying their
debt to the nation” and placing
their case before the people made
a poignant point: “We are all…
convinced that unless this institu-
tion is preserved and it maintains
its equanimity, democracy will not sur-
vive in this country.” And then: “We are
left with no choice except to communi-
cate it to the nation that please take care
of the institution.”
The Supreme Court is an institution
vested with enormous powers and pres-
tige to uphold democracy and rule of
law which is the raison d’etre of its very
existence. India’s democracy is clearly
outlined in the Preamble to the Consti-
tution. It envisages for its citizens—jus-
tice, social, economic, political; liberty of
thought, expression, belief, faith and
worship; equality of status and opportu-
nity; and fraternity, assuring the dignity
of the individual and the unity and
integrity of the nation. By implication,
the four judges of the collegium allege
that the Supreme Court has failed to
defend and protect this democracy.
MANY FAILURES
The demonetisation resorted to on Nov-
ember 9, 2016, was an “act of expropria-
tion” by the government that spread a
sense of fear among the people in general
and the poorer/low-income segments in
particular about the security of their live-
lihoods and money in the bank. This rai-
sed several critical legal issues—excessive
delegation, lack of legislation, ultra vires
of the Constitution, validity of the Re-
serve Bank of India’s “recommendation”
and test of reasonableness. The Supreme
Court maintained a stoic silence.
The Aadhaar project is another tool
for an autocratic state. This became evi-
dent from the way the present ruling
dispensation made a U-turn in its policy
regarding Aadhaar and then went ahead
with Stalinist ruthlessness to force the
gullible public to obtain Aadhaar cards
and link them to all conceivable servic-
es. In this process, the government com-
mitted a fraud on the Money Bill and
repeatedly defied Supreme Court orders.
The objective was to force the public to
surrender their biometrics to the State
for purposes that include surveillance
and palming of the data. Yet, despite a
clear and present danger to democracy
and privacy and even after the Court’s
historic verdict in August 2017 that the
“Right to Privacy” is inherent to the
Fundamental Rights themselves, the
matter has been dragging on.
On the Judge Loya case judgment,
this is what the former chief justice
of the Delhi High Court and ex-chair-
man, Law Commission, AP Shah, had
to say: “What in fact transpired is that
the Supreme Court acted as a court of
appeal, and granted a sort of an
I
TheSupremeCourtisaninstitution
vestedwithenormouspowersand
prestigetoupholddemocracyand
ruleoflawwhichistheraisond’etre
ofitsveryexistence.
FAILURES OF THE STATE
Demonetisation was an “act of expropriation”
by the government that spread a sense of
fear among the people; (right) the Aadhaar
project, too, has disrupted lives
Anil Shakya
| INDIA LEGAL | May 21, 2018 19

20. acquittal, without the benefit of the
judgment of a trial court.”
The “Master of Roster” system,
wherein all powers are given to one
person, is also under challenge. Actu-
ally, the “raucous hearing” during
which the five-judge constitution bench
ruled that setting up of any bench is
the CJI’s exclusive domain was marked
by exchange of harsh words, heckling,
brutal accusations of terrorising judges,
forum-shopping, bench-fixing and
repeated warnings of contempt of
court. This has hurt the credibility of
the Court in the public eye. Fear and
anxiety are writ large on the faces of
ordinary litigants.
FUNDAMENTAL RIGHTS
Of late, the Supreme Court has been
intolerant of inconvenient PILs under
Article 32, once hailed by Dr BR Am-
bedkar as “the very soul of the Consti-
tution”. This Article
gives citizens the right
to move the Supreme
Court in case of trans-
gression of fundamen-
tal rights, thereby
placing this Court as
the protector and guarantor of freedom
and liberty. Scorning it completely or
allowing its pervasive misuse by vested
interests in what critics say is “private
interest litigation” dressed up as a
public cause is negation of the
Constitution itself.
The Supreme Court collegium’s
move to defer its decision on
Uttarakhand Chief Justice KM Joseph’s
elevation to the apex court has heaped
more controversy on this once-hallowed
citadel of justice. When the collegium
met in Delhi on May 2, the agenda
was simple—to reiterate to the govern-
ment its nomination of Chief Justice
Joseph to the Supreme Court. But by
not doing so, the controversy over the
very independence of the judiciary
has snowballed.
The first-ever impeachment motion
against the CJI, its summary rejection
by the vice-president, the resulting chal-
lenge, the drama thereof and the dis-
course that followed have virtually con-
verted the Supreme Court into a politi-
cal battleground which does not augur
well for governance.
EMERGENCY ERA
The last time the very institution of the
judiciary came under a cloud was dur-
ing the Emergency in the mid-Nineties
when democracy stood extinguished
through a presidential proclamation
under Article 352 of the Constitution. I
was then the district magistrate of
Chandigarh and custodian of Lok
Nayak Jayaprakash Narayan (JP) who
was incarcerated in a special ward in
the Postgraduate Institute of Medical
Education and Research, Chandigarh.
It was JP who raised the issue of the
Supreme Court’s role in endorsing the
extinction of democracy and sustaining
the totalitarian rule of Mrs Gandhi and
her coterie. He had urged the then chief
justice of India, AN Ray, not to sit on
the bench to hear Mrs Gandhi’s appeal
against her disqualification by the
Allahabad High Court as he was “oblig-
ed to the prime minister for appointing
him” by superseding three senior judges.
Lead/ Supreme Court/ MG Devasahayam
Thegovernmentcommittedafraudon
theMoneyBillandrepeatedlydefied
SupremeCourtorders.Theobjective
wastoforcethepublictosurrender
theirbiometricstotheState.
DARK MEMORIES
The author, MG
Devasahayam, with Mrs
Gandhi; (above) a po te
the days of the
Emergency
20 May 21, 2018

21. freedom and liberty and were restored
only through the will of the people in
the early 1977 elections.
Since those tumultuous days, democ-
racy has been limping along and in
recent years is again in dire danger.
There is a new norm—“Governance by
Fear!”—which is reminiscent of the
Emergency, most people are moving in
hushed silence, not sure who will pro-
tect their freedom and fundamental
rights which are constantly under
assault from a despotic State. Today, a
strong and independent judiciary under
the guidance and leadership of an unas-
sailable Supreme Court is the only insti-
tution which is empowered constitu-
tionally to remove this sense of trepida-
tion and despair. The country’s demo-
cratic fabric, the strength of the consti-
tution and the rule of law are once again
under a severe test. The jury is out!
—The writer is former administrator,
Chandigarh Capital Project, and chief
administrator, HUDA
sought to guarantee the prime minister.
This was accomplished by three
amendments to the Constitution and an
Act of Parliament. The 38th
Amendment put the declaration of
Emergency beyond the scrutiny of the
courts. The 39th Amendment
made election disputes relating to the
prime minister, president, vice-
president and the Speaker non-justicia-
ble. This wiped out the Allahabad High
Court judgment with retrospective
effect. On 7 November, 1975, a five-
judge bench of the Supreme Court
upheld the amendments and Indira’s
1971 election to Parliament.”
Chief Justice Ray had repaid his debt
to Prime Minister Indira Gandhi, but at
what cost?
DEATH KNELL
Under Chief Justice Ray’s watch, the
Supreme Court went far beyond and
ruled that under Emergency, citizens
have no right to invoke Articles 32 and
226 of the Constitution to defend their
fundamental rights and stopped just
short of declaring that they do not even
have a “right to life”.
All these sounded the death knell of
JP’s apprehensions proved right. Mrs
Gandhi’s appeal came up before the
Supreme Court on August 11, 1975. In
preparation thereof, on August 5,
Parliament amended the Representation
of the People Act. There were six
amendments, the most prominent being
grant of immunity to the PM’s election
from being challenged in a court of law.
State assemblies were convened on
August 8 and 9 to endorse the amend-
ment of the Constitution rendering the
elections of president, vice-president,
prime minister and speaker of the Lok
Sabha non-justiciable.
As I narrated these during my meet-
ing with JP on August 6, he almost
broke down and wailed: “Democracy is
finished completely.” After a pause, he
said: “At least for the present.” JP added
that everything had been manipulated
and there was no hope left in the
Supreme Court!
The accuracy of JP’s prediction is
narrated by Nayantara Sahgal in her
book Indira Gandhi’s Emergence and
Style. She wrote: “The essence of
Emergency was the pinnacle of power,
a position above the multitude, unac-
countable and unchallengeable, it
BITTER PRECEDENT
The author (far right) with
Jayaprakash Narayan. As
Narayan had feared, under the
watch of Chief Justice AN Ray
(above), the Supreme Court
successfully paved the path
for the continuation of the
1975 Emergency
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
| INDIA LEGAL | May 21, 2018 21

22. Supreme Court/ Official Bungalows
N a landmark judgment delivered
on May 7, the Supreme Court
bench of Justices Ranjan Gogoi
and R Banumathi held that former
holders of public office cannot be
treated as a special category of per-
sons entitled to special privileges. Once
they demit office, there is nothing to dis-
tinguish them from the common man;
the public office held by them becomes a
matter of history, the bench added.
The chief minister, once he demits
office, is on a par with the ordinary citi-
zen, though by virtue of the office held,
he may be entitled to security and other
protocol. But allotment of a government
bungalow, to be occupied during his life-
time, would not be guided by the consti-
tutional principle of equality, the bench
has ruled.
UTTAR PRADESH ACT
Observing that government bungalows
constitute public property which by
itself is scarce and meant for use of cur-
rent holders of public office, the bench
declared Section 4(3) of the Uttar
Pradesh Ministers (Salaries, Allowances
and Miscellaneous Provisions) Act, 1981,
ultra vires of the Constitution as it
transgresses the equality clause under
Article 14.
As former CMs of UP continued to
occupy their official accommodation
even after demitting office, in a clear
breach of Section 4 of the 1981 Act, as it
had then existed, a writ petition was
first filed before the Allahabad High
Court by Lok Prahari, an NGO, through
its general secretary, SN Shukla, a for-
mer civil servant. During the pendency
of the writ petition, a set of rules, name-
ly “U.P. Ex-Chief Ministers Residence
Allotment Rules, 1997” were framed to
provide for allotment of government
accommodation to former CMs.
When Lok Prahari challenged these
Rules as well, the state government
promised the High Court that former
CMs would be allotted only Type V bun-
galows, and that too on payment of rent,
etc. As the High Court closed the case
on the basis of this statement, Lok
Prahari filed a writ petition in the
Supreme Court, challenging the validity
of the 1997 Rules. On August 1, 2016,
the Court struck down the 1997 Rules
on the ground that they were in conflict
with Section 4 of the 1981 Act.
The Court also took note of the fact
that no other dignitary holding a consti-
tutional post is given such a privilege.
VALIDITY OF AMENDMENT
Following this, the state government
amended Section 4 of the 1981 Act in
2016. Under Section 4(3), which was
brought in by the amendment, former
CMs became entitled to allotment of
government accommodation during
their lifetime. Lok Prahari again chal-
lenged the validity of this amendment in
the Supreme Court.
Under Section 4 of the Act before the
amendment, each minister was entitled,
without payment of rent, a residence in
Lucknow throughout the term of his
office, and for a period of 15 days there-
after. This would be furnished and
maintained at public expense on the
prescribed scale. Section 4(3) required a
government residence to be allotted to a
former CM at his request for his lifetime
on payment of such rent as may be det-
ermined from time to time by the estate
department of the state government.
During the pendency of the petition
in the Supreme Court, the bench sought
the responses of the centre, and all the
VVIP
SquattersTheCourthasdeniedgovernmentaccommo-
dationtoformerpublicservantsasitsaysthat
thesebelongtothepeopleofthecountry
By Venkatasubramanian
TheCourtheldthatnaturalresources,
publiclandsandpublicgoodslike
governmentbungalows/official
residencesarepublicpropertythat
belongstothepeopleofthecountry.
I
22 May 21, 2018

23. predominant factor justifying its inter-
vention. In this case, it is obvious that
the rights of tax payers as a class were
involved, as the state was subsidising
government accommodation for former
chief ministers out of the tax revenues
collected from citizens.
The Court also held that the 2016
amendment of the 1981 Act was an
attempt to overreach the earlier judg-
ment of the Court which had struck
down the 1997 Rules. This is
significant as the state government
apparently contended that the legisla-
ture was entitled to alter the basis of
the court’s judgments.
PRINCIPLE OF EQUALITY
The Court concluded that natural
resources, public lands and public goods
like government bungalows/official resi-
dences are public property that belong
to the people of the country. The doc-
trine of equality, which emerges from
the concepts of justice and fairness,
must guide the State in the distribution
and allocation of the same, it held.
Following the judgment, the fate of
six government bungalows allotted to
former chief ministers of the state hangs
in the balance. They include Union
Home Minister Rajnath Singh,
states and Union Territories as the
issues being dealt with in Uttar Pradesh
might arise elsewhere too. The Court
received responses from the centre and
the states of Assam, Bihar, Tamil Nadu
and Odisha.
The centre informed the Court that
government accommodation is provided
to former presidents, vice-presidents
and prime ministers as the same has
been approved by the Supreme Court in
Shiv Sagar Tiwari v Union of India and
others, which was decided in 1997. In
this case, the Court felt that “keeping in
view the very high constitutional posi-
tion occupied by the President, Vice-
President and Prime Minister, they
should be accommodated in government
premises after demitting of office by
them, so that the problem of suitable
residence does not trouble them in the
evening of life”.
ALL ARE EQUAL
Among the states which responded,
Tamil Nadu and Odisha have no provi-
sion for official accommodation to for-
mer CMs. In the case of Bihar and
Assam, however, such provision has
been made by the executive instructions
issued by the state under Article 162 of
the Constitution.
The Court reasoned that in a demo-
cratic republican government, public
servants entrusted with duties of a pub-
lic nature must act in a manner that
reflects that ultimate authority is vested
in the citizens. And it is to the citizens
that holders of all public offices are
eventually accountable, it said. Such a
situation would only be possible within
a framework of equality and when all
privileges, rights and benefits conferred
on holders of public office are reason-
able, rational and proportionate.
The Court relied on its previous
ruling in the case of allocation of 2G
Spectrum, in which it held that as natu-
ral resources are public goods, the doc-
trine of equality must guide the state in
determining the actual mechanism for
distribution of natural resources.
Although the rights of the petitioner
did not suffer because of the 2016
amendment, the Court took the view
that in PIL cases like this, the infringe-
ment of rights of a class would be the
GOVERNMENT
PROPERTY
(Clockwise from top,
facing page) The
bungalows occupied by
ex-CMs Akhilesh Yadav,
Mulayam Singh Yadav,
Kalyan Singh and
Mayawati
ItwasbroughttotheSupremeCourt’s
noticethatatleastsixstateshave
similarprovisionsasUttarPradesh
inextendingbenefitsandfacilities
toformerchiefministers.
| INDIA LEGAL | May 21, 2018 23
Photos: UNI

24. Governor of Rajasthan Kalyan Singh,
Narain Dutt Tiwari, Mulayam Singh
Yadav, Mayawati and Akhilesh Yadav.
Although the amicus curiae in the
case, Gopal Subramanium, had justified
the denial of government accommoda-
tion even to former presidents and
prime ministers, the Court has refrained
from examining the merits of this argu-
ment. In his written submissions,
Subramanium had suggested that they
ought to be granted no greater privilege
than that accorded to other citizens of
India, except for the minimal courtesies
of protocol, pension and other regular
post-retirement benefits.
He had submitted that for a republi-
can society to exist, public officials must
not be artificially exalted to a superior
class at the expense of the citizenry
through the conferment of arbitrary
privileges upon them by their col-
leagues. Such exaltation of the ruling
elite is a characteristic of authoritarian
and totalitarian regimes and antithetical
to our republican democracy, he had
submitted. Citizens can hold all public
officials to account only where all privi-
leges, rights and benefits conferred on
them are reasonable, rational and pro-
portionate, he said. A statute which con-
fers public property on private citizens
who are no longer serving any public
function would undermine trust and
confidence in the institutions of the gov-
ernment, he cautioned.
MEMORIAL ISSUE
It was brought to the Supreme Court’s
notice that at least six states have simi-
lar provisions as Uttar Pradesh in
extending benefits and facilities to for-
mer CMs, some of which have been dis-
continued, but could be reintroduced in
the absence of the Supreme Court’s rul-
ing. Subramanium had referred to a
Union cabinet decision in October 2014
to stop the allotment of bungalows
as memorials.
Despite the amicus curiae’s note, the
bench decided to interpret the validity
of the amendments to the Uttar Pradesh
legislation alone.
RIPPLE EFFECT
“If the Uttar Pradesh rule goes, what
effect will it have on the Central rules or
state rules, that is for you (Centre and
the States) to see,” the bench told the
counsel appearing for the centre and
other states. The Court, however, agreed
that similar legislation in other states
and the rules followed by the centre
might come under challenge if the Uttar
Pradesh legislation was struck down.
The May 7 judgment, however, is silent
on this aspect.
Lok Prahari’s success in this case is
in contrast with the dismissal of another
recent petition by it challenging the
grant of life-long pension and travel
allowances to former parliamentarians
and legislators and their spouses. A
Supreme Court bench of Justices J
Chelameswar and Sanjay Kishan Kaul
had, on April 17, held that these were
matters of legislative policy under
Parliament’s jurisdiction.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Supreme Court/ Official Bungalows
Narayan Dutt Tiwari
Term of Office:
Jan 21, 1976—April 30, 1977
Aug 3, 1984—Sept 24, 1985
June 25, 1988—Dec 5, 1989
He has been residing at the 1-A, Mall
Avenue bungalow in Hazratganj,
Lucknow, ever since he demitted office.
Kalyan Singh
Term:
June 24, 1991—Dec 6, 1992
Sept 21, 1997—Nov 12, 1999
Though he was appointed governor of
Rajasthan in 2014, his residence at 2,
Mall Avenue, Lucknow is used by him
and his family when they visit the city.
Mulayam Singh Yadav
Term:
Dec 5, 1989—June 24, 1991
Dec 4, 1993—June 3, 1995
Aug 29, 2003—May 13, 2007
He has been living at 5, Vikramaditya
Marg for 27 years. Yadav’s son, Akhilesh
and brother, Shivpal, have also got
accommodation on the same road.
Mayawati
Term:
June 3, 1995—Oct 18, 1995
March 21, 1997—Sept 20, 1997
May 3, 2002—Aug 29, 2003
May 13, 2007—March 15, 2012
She spent a whopping `86 crore to ren-
ovate her 13-A, Mall Avenue residence
during her last term as CM.
Rajnath Singh
Term of Office:
Oct 28, 2000—March 8, 2002
His bungalow at 4, Kalidas Marg is
regularly visited by his wife and sons
whenever he goes to Lucknow.
Akhilesh Yadav
Term of Office:
March 15, 2012—March 19, 2017
This ex-CM earlier lived with his father,
Mulayam Singh Yadav, at 5, Vikra-
maditya Marg, but after they split in
2016, he was allotted 4, Vikramaditya
Marg. It is believed to be the most
expensive accommodation of an ex-CM.
Thehitlist
Theamicuscuriae inthecase,Gopal
Subramanium,hadjustified
thedenialofgovernment
accommodationeventoformer
presidentsandprimeministers.
24 May 21, 2018

25. went even further and spent `100 crore
on his bungalow’s construction.
According to the rules, the state proper-
ty department can spend only `25 lakh
for the reconstruction and maintenance
of former bungalows of CMs. The
approval of the cabinet is necessary for
anything over this amount. The basic
monthly rent of these bungalows is only
`4,212. Ironically, their residents are
regular defaulters in electricity bill pay-
ments. After Akhilesh lost the assembly
elections in 2017, it was revealed that
Mulayam owed lakhs of rupees as elec-
tricity bill arrears.
The former CMs now face a scenario
where all these amenities might go
away. Nowhere else in the city is it possi-
ble to arrange an alternative to such a
lavish lifestyle and that too at such a low
rent. With the exception of Akhilesh, all
other former CMs have been in these
houses for over 20 years.
COMMON CITIZENS
These VVIPs are also distressed about
another matter. Through its order, the
apex court also stripped them of their
VIP status and equated them with
ordinary citizens. The response of the
state government to the verdict has not
been encouraging and it is being pre-
dicted that it will make an effort to stop
its discharge. Even in the Supreme
Court, the state government had
argued in favour of occupying these
bungalows and said that as a democratic
country, those who occupy high posi-
tions are given many facilities even after
leaving office.
Judging from its statement in court
and the rather muted response to the
verdict, it seems that the Yogi
Adityanath government is not very dif-
ferent from previous governments in
this matter. The future will tell whether
it gives greater importance to protecting
the larger rights of its citizens or to petty
political interests.
| INDIA LEGAL | May 21, 2018 25
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Supreme Court/ Official Bungalows / UP CMs
Royal Retreats
Theheadofthisstatehasledalifeofluxuryandinsome
cases,spentcroresinconstructingthese“palaces”
By Govind Raju in Lucknow
N May 7, a Supreme Court
ruling made some VVIPs in
UP uneasy. It said that for-
mer chief ministers would
have to give back the bunga-
lows allotted to them by the state gov-
ernment after they demit office. Even
after being ousted from power, their
political machinations would continue
inside their bungalows.
The trend of allocating bungalows to
former CMs in UP began in 1980. The
Allahabad High Court decided against
this practice in 1997, which led to the
relocation of a host of ministers such as
VP Singh, HN Bahuguna, Sripati
Mishra and Kamlapati Tripathi. The
alliance of Mayawati and the BJP
brought a new impetus to this issue by
introducing the “Ex-CM Residential
Allotment Rules, 1997” which served as
a housing solution to former CMs. This
provided relief to the likes of Ram
Naresh Yadav, ND Tiwari, Rajnath
Singh and Akhilesh Yadav.
Mayawati resides in a bungalow of
2,164 sq m in the Mall Avenue area of
Lucknow. The house was built by com-
bining several plots. Mulayam Singh
Yadav’s “palace” covers around 2,436 sq
m. While Akhilesh spent the majority of
his stint in power with his family in this
house, he decided to move out to a
1,535-sq m bungalow just before the
elections. Surprisingly, Tiwari, Kalyan
Singh and Rajnath reside in compara-
tively smaller bungalows. Rajnath
tops that list, as he resides in a 750
sq m house.
POSH HOUSES
These bungalows provide luxurious liv-
ing to these chief ministers. Mulayam,
Mayawati and Akhilesh especially enjoy
a lavish lifestyle in these residences.
According to a report in 2012, the con-
struction and finishing of Mayawati’s
house amounted to `86 crore. Akhilesh
O
SETBACK AT HOME
Former UP chief minister Rajnath Singh’s
bungalow in Lucknow
UNI

26. Supreme Court/ Live-in Relationships
ARRIAGES have
always been considered
a sacred and compulso-
ry ritual to be per-
formed in order for a
couple to live together.
However, the legislature as well as the
judiciary has taken a rather liberal view
of couples living together and given
relief in cases where a marriage has not
taken place.
Many judgments by the Supreme
Court, including the recent one in the
Hadiya case, are milestones when it
comes to relationships and marriages.
In a recent case, the Court has again
shown the way for couples who want to
live together. A 19-year-old girl eloped
with a boy below the marriageable age
of 21 and got married in a temple in
Kerala. They started living together but
her father lodged a missing FIR and
filed a habeus corpus petition in the
Kerala High Court, which held the mar-
riage void as the boy had not attained
the marriageable age of 21 and no mar-
riage certificate was produced by the
couple. Only a few marriage photo-
graphs from the temple ceremony
were shown.
Subsequently, the boy approached
the apex court and a bench of Justices
AK Sikri and Ashok Bhushan overruled
the Kerala High Court judgment and
held that as the girl and the boy were
majors now, they had the freedom to
live with whomsoever they wanted. The
bench’s remarkably liberal stance was
exemplified when it said: “Even if they
were not competent to enter into wed-
lock (which position itself is disputed),
they have right to live together even out-
side wedlock.” Has this judgment then
opened the doors for couples who have
not attained marriageable age but want
to be in a live-in-relationship?
AKIN TO A MARRIAGE
Although the legislature has not
expressly made laws on live-in relation-
ships, there are some statutes that sug-
gest that the legislature has taken care
of the issue. For example, the Protection
of Women from Domestic Violence Act,
2005, does not talk about live-in rela-
tionships but makes all those who are in
a “shared household” accountable. This
means that a couple living together
without lawful wedlock will also be cov-
ered under the Act. It provides for
maintenance and right of alimony for
the aggrieved live-in partner in case
things go wrong. Thus, a man and a
woman in a relationship will be consid-
ered husband and wife even in the
Inmanyfar-reachingjudgments,theapexcourthastakenaliberalviewofcoupleswantingto
livetogetherandsupportedthemwholeheartedly
By Vinay Vats
M
Licence to Love
Anthony Lawrence
26 May 21, 2018

27. absence of the customary rituals of mar-
riage, vide section 2 (f) of the Protection
of Women from Domestic Violence Act.
There have been many judgments of
the Supreme Court and high courts
where the issue of live-in relationships
has been raised. Questions have been
raised whether expansive interpreta-
tions can be given to the term “husband”
and “wife” when they are living together
for a reasonable period of time without
getting married. Some of the cases on
this issue were:
Badri Prasad vs. Dy Director of
Consolidation (1978): The Supreme
Court in this case recognised a 50-year-
old live-in relationship of a couple.
Justice Krishna Iyer observed that the
law leans in favour of legitimacy and
frowns upon bastardy.
M. Palani v. Meenakshi (2008): The
Madras High Court in this case held
that if sexual relationship has been
established between a man and a
woman, then it is tantamount to their
being married with the status of hus-
band and wife.
Tulsa and others v. Durghatiya &
others (2008): The Supreme Court in
this case gave legal status to children
born out of a live-in relationship. It also
granted right to property to a child born
out of a live-in relationship.
LANDMARK CASE
Indra Sarma v. V.K.V. Sarma (2013): In
this case, the Supreme Court gave five
illustrations of which cases fall under the
Domestic Violence Act. It said:
“a) Domestic relationship between an
unmarried adult woman and an unmar-
ried adult male: Relationship between
an unmarried adult woman and an
unmarried adult male who lived or, at
any point of time lived together in a
shared household, will fall under the def-
inition of Section 2(f) of the DV Act and
in case there is any domestic violence,
the same will fall under Section 3 of the
DV Act and the aggrieved person can
always seek reliefs provided under
Chapter IV of the DV Act.
“b) Domestic relationship between an
unmarried woman and a married adult
male: Situations may arise when an
unmarried adult woman knowingly
enters into a relationship with a married
adult male. The question is whether such
a relationship is a relationship ‘in the
nature of marriage’ so as to fall within the
definition of Section 2(f) of the DV Act.
“c) Domestic relationship between a
married adult woman and an unmarried
adult male: Situations may also arise
where an adult married woman know-
ingly enters into a relationship with an
unmarried adult male, the question is
whether such a relationship would fall
within the expression relationship ‘in
the nature of marriage’.
“d) Domestic relationship between an
unmarried woman unknowingly enters
into a relationship with a married adult
male: An unmarried woman unknow-
ingly enters into a relationship with a
married adult male, may, in a given situ-
ation, fall within the definition of
Section 2(f) of the DV Act and such a
relationship may be a relationship in the
‘nature of marriage’, so far as the
aggrieved person is concerned.
“e) Domestic relationship between same
sex partners (Gay and Lesbians): DV
Act does not recognize such a relation-
ship and that relationship cannot be
termed as a relationship in the nature
of marriage under the Act.”
In the present judgment, one of the
issues left open is that the age of
majority is 18 years for both boys and
girls, but the age of marriage is 18 for
girls and 21 for boys. According to the
judgment, a major can live with
whomsoever he or she wants. Hence,
a small bracket of 18 to 21 years is left
open for boys where they cannot
legally get married but can have a
live-in relationship. Doesn’t this dilute
the purpose of fixing the minimum age
of marriage by the legislature?
LIBERAL VIEW
Many SC judgments, as in the case of
Hadiya and her husband Shafin Jahan, are
milestones when it comes to the issue of
relationships and marriages
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Eveniftheywerenotcompetentto
enterintowedlock(whichpositionitself
isdisputed),theyhaverighttolive
togetherevenoutsidewedlock.”
–SupremeCourtjudgment
Photo Courtesy: Facebook
| INDIA LEGAL | May 21, 2018 27

28. Focus/ Abuse in Shelter Homes
OCIETY seems to have
touched new lows as re-
ports of rape and moles-
tation of children come in
from various parts of the
country. Caretakers and rel-
atives have often sexually exploited
helpless and even handicapped inmates,
leaving these unfortunate children to
fend for themselves.
In a recent case, in Khandwa in
Madhya Pradesh, two mentally ill minor
sisters accused a 60-year-old director of
a shelter home of raping them. Accor-
ding to a report, the accused,
Poonamchand Malviya, has been arrest-
ed and sent to judicial custody by a
court in Khandwa, based on a complaint
lodged by the girls.
The two sisters, one aged 13 and the
other 15, had been staying in the shelter
home for the differently abled, where
Malviya was the director. The victims
escaped from the home and went to a
police station where a case was regis-
tered against the accused under IPC
Section 376 (rape) and relevant sections
of the Protection of Children from
Sexual Offences Act.
In yet another case, an NGO alleged
that children in a shelter home in Karjat
(Maharashtra), aged between five and 18
years, were being sexually abused. The
NGO reported that the children were
made to watch pornographic material
and perform sexual acts on one another,
which were recorded.
The accused, founders and caretak-
ers of the shelter home run by
Chandraprabha Charitable Trust, have
been arrested.
However, nothing can compare with
the perversion and depravity that took
place six years ago in Rohtak Apna
Ghar, a shelter home for handi-
capped and destitute girls. It was so
revolting that it appeared unbelievable
and exaggerated.
The National Commission for
Protection of Child Rights rescued near-
ly 120 inmates, including children and
women, from Apna Ghar after carrying
out a surprise raid following an anony-
mous complaint.
A report on the incident said that the
caretaker of the shelter home, 53-year-
old Jaswanti Devi, had been allowing
sexual exploitation of handicapped girls
by her own brother and son-in-law.
It was found that the two had been rap-
ing girls in her presence as well as of
her daughter.
The CBI, which was subsequently
handed over the case as public ire grew,
found that in some instances, the raped
inmates had given birth and the babies
had been sold for adoption. It subse-
quently filed a chargesheet against seven
accused, including Jaswanti, her daugh-
ter, Sushma alias Simmi, brother
Jaswant Singh, son-in-law Jai Bhagwan,
cousin Sheela and two other accused,
Veena and Satish.
The chargesheet was filed under
various sections of the IPC, including
313 (abortion carried out forcibly/with-
out consent), 120-B (conspiracy), 323
(criminal assault), 374 (forcing a
person to indulge in labour work un-
lawfully), 376 (rape) and 506 (criminal
intimidation).
Earlier this month, the CBI Special
Court judge in Panchkula sentenced
Jaswanti, Jai and driver Satish to life
imprisonment with a fine of `50,000
each. Jaswanti was convicted for abet-
ment of rape, causing hurt, unlawful
compulsory labour, criminal intimida-
tion, cruelty to children and running a
prostitution ring.
Jai was convicted of rape, voluntarily
causing hurt, unlawful compulsory la-
bour and criminal intimidation. Satish
was convicted of rape, unlawful compul-
Increasingincidentsofrapeandmolestationofchildrenin
supposedlysafehavensrevealtherevoltingexploitationofkids
By Vipin Pubby
S
Dens of Depravity
Anthony Lawrence
28 May 21, 2018

29. cent) and teacher (10 percent). There
are only about one percent cases in
which strangers or persons unknown to
the victim are involved.
The nation needs to pay urgent
attention to this menace. For that, it is
important to spread awareness and,
more important, educate parents and
children themselves.
of these children”, said
the chargesheet which
also mentioned that
some of these children
were taken to Delhi for
prostitution.
These horrendous
incidents are, how-
ever, only the tip of the
iceberg. Many such
cases go unreported
because of fear among
the inmates or sup-
pression of facts by the
authorities. Also,
the abuse is so ram-
pant that in most cases the most
dangerous place for the victims is their
own home.
A nationwide study by the Women
and Child Development ministry in
2007 had come to the conclusion that
about 53 percent of all children faced
rape and child sexual abuse.
Another study found that the culprits
were often the victim’s father (14 per-
cent), uncle (33 percent) and even
grandfather (3 percent). Others include
cousin (14 percent), neighbour (14 per-
sory labour, and criminal conspiracy.
The judge sentenced Jaswant to
rigorous imprisonment of seven years
for rape. Simmi and two Apna Ghar
employees, Sheela (also a cousin) and
Veena, were convicted but set free on
the basis of already undergone
sentences.
T
he CBI, during its investigations,
found that a deaf and mute
inmate had been raped and
forced to imbibe liquor by Jai. She deliv-
ered a baby girl in September 2012 and
a DNA test later revealed that Jai was
the biological father of the child. The
victim had identified the convict during
the investigations and trial with the help
of an interpreter. Another deaf and
mute victim was found to be sexually
exploited at the shelter home and her
teeth broken during an assault by Jas-
wanti. The medical examination of
another victim revealed that she too had
been raped.
At least nine children had been “ille-
gally and unauthorisedly (sic) given
away by Jaswanti to different persons
and (that) she had taken money in lieu
HEINOUS CRIMES:
(Clockwise from above left)
Caretaker, Apna Ghar, Rohtak,
Jaswanti Devi was
convicted for sexual exploitation of
children; the shelter home in Karjat,
Maharashtra; Poonamchand
Malviya, accused of raping minors
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UttarPradesh 11 163 121 5,422
Bihar 8 40 45 430
Karnataka 8 280 31 667
WestBengal 3 72 37 1,480
Assam 1 10 10 300
Jharkhand 9 52 33* 543
AndhraPradesh 4 108 17 875
Odisha 5 21 15 456
Delhi 110 82 5,500*
Gujarat 5 109 91 3,735
Rajasthan 14 106 54 1,975
TamilNadu 12 129 39 1,410
Maharashtra 13 34 1,542
States
Cities
studied
No. of
shelters
required
No. of
permanent
shelters
Total
shelter
capacity
*(proposal for new shelters submitted for four cities)
*(100 temporary shelters too are there)
Source: www.ihrn.org.in
Shelteringthehomeless
| INDIA LEGAL | May 21, 2018 29

30. Spotlight/ Policing in India
30 May 21, 2018
HERE is no part of our
system of government of
which such universal
and bitter complaint is
made, and none in
which, for the relief of
the people and the reputation of govern-
ment, is reform so urgently called for...
The improvement of the police must, in
the interests of the people and of good
government, take precedence of every
other project.”
There’s a reason why these words of
John Woodburn, the British Governor of
colonised Bengal between 1898 and
1902, and their reiteration by Andrew
Fraser, president of the first Police
Commission set up by the British in
India in 1902, still haunt the venerable
Prakash Singh, former director general
of police of Uttar Pradesh, Assam and
the Border Security Force.
“What Woodburn, Fraser and Lord
Curzon had said over a century ago was
about a police force helmed by the
British and governed under an Act (the
Police Act, 1861) that was drafted with
the intention of using brute force to
crush any resistance by Indians in the
aftermath of the 1857 sepoy mutiny. It is
a disturbing irony that these comments
hold true in India even today,” Singh
told India Legal recently on the side-
lines of the launch of the “Status of
Policing in India” report.
The voluminous report, compiled
jointly by a prominent advocacy group
and scholars at the Lokniti Programme
of the Centre for the Study of
Developing Societies (CSDS), is
arguably the most thorough
document in recent years on
the status of policing across the
country and the perceptions
that common citizens have
about the police. The study is
the result of a painstaking
analysis of annual reports filed
between 2011 and 2016 by the
National Crime Records
Bureau (NCRB), the Bureau of
Police Research and
Development (BPR&D) and
the Comptroller and Auditor
General (CAG), complemented
by surveys carried out across
22 Indian states.
The findings of the report are a
telling comment on the depressing state
of the police force across the country
and also raises a piquant question
against the Supreme Court, which had
in 2006, while delivering a verdict in a
petition filed by Singh, laid out seven
directives for police reforms. In the 12
years that have passed since that verdict,
a majority of India’s states have not only
failed to comply with the directives but
have instead brought laws aimed at cir-
cumventing the judicial order.
The report covered 42 variables in
six main themes of crime rate, disposal
of cases by police and courts, diversity in
the police force, police infrastructure,
prison data and disposal of cases of
Living in a Time Warp
ArecentreporthighlightsthedireneedforchangesinthepoliceforceandfortheJudiciary
tocrackthewhipwhentheExecutivecircumventsitsordersontheissue
By India Legal Bureau
T
UNI
“
NEEDLESS
EXCESSES
(Left) Police trying to quell a
student protest related to UPSC’s
exams in New Delhi

31. Punjab and Karnataka) out of
the selected 22 have SC prison-
ers in proportion to or less than
their population in the State; in
case of STs, this number is three
(Himachal Pradesh, Madhya
Pradesh, Nagaland), and in case
of Muslims, all 22 states have a
higher proportion of Muslim
prisoners than the Muslim pop-
ulation in the State.”
The survey commissioned by
the authors of the report across
22 states (excluding J&K and
some North-eastern states) to
gauge public perception of vari-
ous facets of policing shows that
38 percent of the respondents
believed that the police often
falsely implicate Dalits in petty
crimes, Adivasis on the charge of
being Maoists and Muslims in
terrorism-related cases.
The report shows that only
two (Punjab and Uttarakhand)
out of the 22 surveyed states
had met the reserved quota for
SCs while six states (Bihar,
Himachal Pradesh, Karnataka,
Nagaland, Telangana and Uttarakhand)
fulfilled the reservation quota for STs.
However, when it came to filling the 33
percent quota for women, the all-India
percentage was a “shameful” 7.3 percent
as of 2016. The skewed women’s repre-
sentation in police forces can be gauged
from the fact that at 12.9 percent, Tamil
Nadu had the highest number of women
police personnel.
The survey also reveals that while
the poor and the lower classes had the
highest levels of distrust in the police, at
32 and 31 percent, respectively, the
upper classes “even within the various
caste-based distinctions weaved toge-
ther, exhibited highest levels of trust”.
“The caste angle on its own also
plays an important role in shaping pub-
lic trust in police,” the report says,
adding that STs were found to be most
distrustful of the police at 37 percent,
followed by OBCs at 30 percent and SCs
at 29 percent.
Singh believes that many of these
anomalies in policing could be corrected
if the Executive in different states and
the police force itself showed willingness
to accept and implement the Supreme
Court verdict in Prakash Singh vs Union
of India, 2006.
Justice (retired) AP Shah, former
chief justice of the Delhi High Court
and former chairman of the Law
Commission, told India Legal that while
there is no denying that the states had
failed to instil reforms in the police
force, it is also a fact that the “Supreme
Court seems to have abdicated its
responsibility in ensuring that the order
passed by it on police reforms in 2006
was also complied with and if it wasn’t
then the errant states should be held
in contempt”.
Singh said that the contempt pleas
filed by him in the apex court against
several non-compliant state govern-
ments were not even being taken up for
hearing. “Under the incumbent Chief
Justice of India (CJI), the matter has
been listed four times though there has
been no progress. The two previous
chief justices (TS Thakur and JS
Khehar) had not even heard it,” the
retired IPS officer said.
With the apex court lackadaisical in
ensuring that its orders are complied
with, an Executive that seems only too
eager to allow the status quo of poor
policing to prevail and a public that con-
tinues to bear the brunt of these failures,
Singh harks back to Woodburn and
Fraser’s indictment of the lack of
reforms in the police force during the
Raj days. “It seems time has stood still
for the police, doesn’t it?” he wonders.
| INDIA LEGAL | May 21, 2018 31
crimes against SCs/STs/women and
children. It confirms what had so far
been in the realm of speculation—that
Scheduled Castes, Scheduled Tribes and
religious minorities feel unduly perse-
cuted by the police administration—
while also detailing how a majority of
states had failed to fill the quota
reserved for SC/ST and women candi-
dates in the police force.
“Several studies in different states
have been conducted on the dispropor-
tionate representation of minorities and
vulnerable communities in the prisons.
This has been found to be so particular-
ly in the case of Muslims. When coupled
with poor conviction rates and incidents
of false implication, as recognised by
courts, this points to a deeper problem
of biases within the structure leading to
hyper-incarceration of a particular sec-
tion of the society,” the report states.
It adds: “In case of SCs, only four
states (West Bengal, Uttarakhand,
Thestudyistheresultofapainstaking
analysisofannualreportsfiledbetween
2011and2016byNCRB,BPR&Dand
CAG,complementedbysurveyscarried
outacross22states.
“Undertheincum-
bentCJI,thepolice
reformsmatterhas
beenlistedfourtimes
thoughtherehas
beennoprogress.The
twopreviouschief
justices(TSThakur
andJSKhehar)had
notevenheardit.”
—FormerUPDGP
PrakashSingh
“TheSCseemsto
haveabdicatedits
responsibilityin
ensuringthatthe
orderpassedbyiton
policereformswas
compliedwithandifit
wasn’tthentheerrant
statesshouldbeheld
incontempt.”
—Justice(retired)
APShah
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

32. Probe/ LTC Scam
32 May 21, 2018
F you are a resident of Delhi and
want to take your family of four on
a holiday to the Andamans, chan-
ces are that you will log on to one
of the travel websites and search
for a package that suits your budg-
et. You are neither a high-end tourist
nor a backpacker and more likely to
wrangle a package, flight and room
included, for about `30,000 per head
for a five-day-four-night stay.
Now suppose a friend, a government
servant, wants to join you with his fami-
ly on the holiday and wants to utilise his
Leave Travel Concession (LTC) before
the block year draws to a close. Govern-
ment rules stipulate, except in excep-
tional cases, that its staff and families
using LTC can travel only by Air India
and that too, in economy at fares listed
in the LTC rate list. What’s more, they
must buy their tickets directly from the
airline or by using any of the three
authorised travel agents of the govern-
ment—M/s Balmer Lawrie and Com-
pany, M/s Ashok Tours and Travels
and IRCTC.
Every day, hundreds of tourists arrive
in Port Blair, the capital of the Andaman
and Nicobar Islands from all over the
country to spend a few fun-filled days
under clear blue skies on the silver bea-
ches of the tropical paradise. But thanks
to government rules, a passenger arriv-
ing by Air India may end up paying
twice what the person sitting next to
him on the same flight does and three
times what a passenger on a low-cost
carrier (LCC) has for the same route.
Thus, if a person has booked an LCC in
May-end for a ticket costing `12,500,
the same may cost `21,000 on the
national carrier, but, shockingly, `57,400
for a government servant who has
availed his LTC.
EXORBITANT FARES
Every month, Air India puts out a chart
Asanindirectsubsidytocash-strappedAirIndia,the
governmentcontinuestoshelloutasmuchasthreetimesthe
normalfaresforitsemployeesavailingofLTC
By Ashok Damodaran
I
Authorised Loot

33. | INDIA LEGAL | May , 2018 33
that details the prices of tickets on vari-
ous sectors for the benefit of those
intending to avail LTC. Even a cursory
glance suggests they are exorbitant com-
pared to Air India seats on popular trav-
el websites and ridiculously high com-
pared to private airlines. For example, a
Delhi-Bengaluru two-way ticket for
travel on May 31 and return on June 5
on private airlines costs `7,800 on travel
portals, while Air India’s best tickets
come at `13,000. But just a to and fro
ticket for a government babu who is
availing his LTC and flying Air India on
the same dates will cost nothing less
than `38,000.
The story gets repeated across virtu-
ally all sectors that the national carrier
flies to. Take an LCC flight from Delhi to
Thiruvananthapuram—one of the long-
est flights in the domestic sector. This
will cost `10,700 on IndiGo, `14,000 on
Air India and `41,000 for LTC trav-
ellers. A two-way ticket on the Mumbai–
Aurangabad sector, 335 km apart, costs
`5,500 on LCCs, `15,000 on AI and a
whopping `42,000 for the LTC traveller.
It is easy to understand why nobody is
complaining about these
exorbitant rates. The babu doesn’t pay
for it. Rather, his employer, the govern-
ment, does.
Former Director General of Civil
Aviation Kanu Gohain told India Legal:
“This is an indirect subsidy which does
nothing but show that Air India’s rev-
enues are high. The government is the
loser ultimately.”
MASSIVE FRAUD
There are about 50 lakh central govern-
ment employees who avail of LTC and
government guidelines strictly require
them to “maintain absolute integrity at
all times. Ministries and departments
should therefore not hesitate to take
severe action against employees guilty of
deliberate malpractices, particularly in
collusion with travel agents etc”. This is
as per a memorandum issued by the
department of personnel and training
some years back after a newspaper
reported massive LTC frauds. The CBI
was also roped in to probe hundreds of
cases of fake travel bills.
There has been a demand that the
national carrier charge the same fares
for LTC as its regular fares. This is
because of a strong belief that as its LTC
fares are higher than routine for the
same flight, it encourages misuse of this
facility. There is no reason why these
tickets should be priced higher simply
because the government is paying them.
Similarily, there is a clamour for
elimination of the three official travel
agencies, all government-owned, who
have been tasked with selling LTC tick-
ets. At a time when booking a flight is
just a click away, what is the need for a
travel agent, particularly when one of
the major suspects in the LTC scam
that the CBI is investigating is a
travel agency.
Such inflated fares are nothing more
than another indirect subsidy for the
cash-strapped airline which has accu-
mulated losses of about `50,000 crore
and continues to bleed.
BREEDING CORRUPTION?
(Facing page) The exorbitant fares charged
by Air India for tickets booked by government
employees under the LTC scheme opens up
avenues for their misuse; (above) passengers
in front of an Air India counter at Delhi airport
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Thankstogovernmentrules,a
passengeronAirIndiausinghisLTC
mayenduppayingtwicewhatthe
personsittingnexttohimdoesand
threetimeswhat’spaidonanLCC.
Subsidybysleight
Sector
Delhi-Port Blair-Delhi (May 31-June 5)
Fare (in Rupees)
LCC
Air India
Air India LTC
12,500
21,000
57,400
Sector
Delhi-Bangalore-Delhi
Fare
LCC
Air India
Air India LTC
7,800
13,000
38,000
Sector
Delhi-Trivandrum-Delhi
Fare
LCC
Air India
Air India LTC
10,700
14,000
41,000
sfo777.com

34. Economy/ GST Council
34 May 21, 2018
HE GST Council in its
27th meeting on May 4
took two momentous deci-
sions. The first was with
respect to the ownership
and equity structure of
GST Net (GSTN), the IT infrastructure
for administering GST. The second was
with regard to filing of returns.
GSTN provides IT infrastructure and
services to both central and state gov-
ernments, taxpayers and other stake-
holders. It was set up in 2012 based on
the recommendations of an expert
group as a non-government and not-for-
profit private limited company. Private
entities held 51 percent equity share and
central and state governments collec-
tively had 49 percent equity.
When GSTN came up for discussion
in 2011-12, there were two views on it.
Those who supported private ownership
of GSTN had the following to say
about it:
As the introduction of GST had
already been delayed and GSTN would
have to be put in place at the earliest, it
should be given financial autonomy in
terms of purchasing and acquiring com-
puter hardware and software.
As a private entity, GSTN would have
autonomy and flexibility in all HR-relat-
ed matters. It could attract the best tale-
nt with higher emoluments and it could
follow the “hire and fire” policy in ensur-
ing that the system is an efficient one.
However, those who opposed priva-
tisation of GSTN expressed the follow-
ing concerns:
Ownership and custody of data: Rela-
ted to this was the issue of secrecy and
security of data. It was pointed out that
the custody of sensitive data and its
security should be the sovereign func-
tion of the government. The GSTN
authority would not actually handle the
end-to-end operations of the GSTN
Common Portal but would outsource
TheCouncilhasproposedthatthisvitalnetworkbegivenbacktothegovernmentasthereare
concernsoverprivateentitiesleakingsensitiveinformation
By Sumit Dutt Majumder
T
GSTN Data Breach?
FRESH PRESPECTIVE:
(Above) Union Finance Minister
Arun Jaitley chairing the 27th GST
Council meeting, via video confer-
ence, in New Delhi
PIB