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SUPREMECOURT:
MUTINYONTHEBENCHNeverinindependentIndia’shistoryhavefourseniorSupremeCourtjudges
calledapressconferencetoattackthechiefjusticeandjudicialprocedures.
Bysayingdemocracyisindanger,theyhaveexposedariftinthe
apexcourtwhichhasalarmingconsequences.
(L-R) Justice Kurian Joseph, Justice Jasti Chelameswar, Justice Ranjan Gogoi and Justice Madan B Lokur addessing a press conference in New Delhi

ContentsVOLUME XI ISSUE 10
JANUARY22,2018
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4 January 22, 2018
Mutiny in the Judiciary
Last Friday’s press conference by four senior-most judges of India’s topmost court is
unprecedented and has exposed a rift that has alarming consequences
LEAD
SUPREMECOURT
6
Piloting a
Great Reform
Case data obtained
from the registrar
general of the Allahabad
High Court will be used
to evolve target-specific
guidelines to tackle
mounting pendency in
Indian courts
18

Setback for India
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside .........................14
Delhi Durbar ...................15
Courts.............................16
National Briefs................37
International Briefs..........45
Media Watch ..................48
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
| INDIA LEGAL | January 22, 2018 5
Fooling the Taxpayer?
The UP government’s law to give houses to former CMs is under the
lens. This could impact residences given to ex-PM’s and presidents
24
When the United States Supreme Court
fixes its mistakes, it does so quite
discreetly, sans press releases or
public reading of corrections
46Quiet
Corrigenda
Despite the CBI putting on a brave face, Italy’s clean chit to the two
Finmeccanica executives has hurt its probe into the AgustaWestland case
38
Wrong Priorities
A furore over an FIR filed against Rachna Khaira, who exposed a
serious breach in the UIDAI system, has embarrased the government
SPOTLIGHT
34
Law with Loopholes
The new consumer protection bill to replace the 1986 Act is grand
in design, but has contradictions and not a few unaddressed areas
26
ACTS&BILLS
Media’s Hateful Lies
A law is needed to stop the media from generating fake news. A
majority of such cases are also following a certain political agenda
30
FOCUS
End of the Rainbow
Justice is within sight for the LGBTQ community with a larger SC
bench set to review its 2013 decision to criminalise gay sex
22
An amendment to an immigration
bill removing international
students from Britain’s
migration figures is likely soon,
leading to more visas being
issued to them
42Welcome to
London
GLOBALTRENDS
DEFENCE
Patriarchal Stereotypes
Despite great strides made by women, outmoded views of their role in the
family and in public life have slowed their progress and that of society
40
OPINION

F you think that last week’s press confer-
ence by four of the senior-most judges of
the Supreme Court—the very Collegium
itself–on the sprawling front lawn of Justice
Jasti Chelameswar’s residence, during
which Chief Justice Dipak Misra was savaged,
was a dizzying display of free speech in a democ-
racy, well, think again.
What it amounted to was a mutiny that could
well sink the Bounty—the ship of state that
holds aloft some of the worthiest principles of
the Constitution enshrining this Republic’s free-
doms and liberties. The Executive branch must
be laughing all the way to the bank! For years,
there have been attempts to emasculate the Judi-
ciary as the Executive tried its damndest to har-
ness powers not bequeathed to it by the Consti-
tution. Indira Gandhi tried, but barely succeeded
during the Emergency. The balance was restored
by a series of measures which guaranteed safe-
guarding the “basic structure” of India’s secular
Constitution and Fundamental Rights.
The Supreme Court judges had disagree-
ments, they wrote dissenting opinions, they par-
ticipated in seminars critical of judicial delays,
appointment procedures, the bureaucratic slug-
gishness in the registries, court politics, judicial
corruption and discipline, escalating costs,
“uncle judges” … you name it. But in the end, as
literally the court of last resort, the judiciary,
especially the Supreme Court, came to the aid
of the wronged, the dispossessed, women’s
rights, gender neutrality, press freedoms,
welfare entitlements, victims of police excesses
and state sultanism.
The people of this land have been the judicia-
ry’s real constituency and support system help-
ing to sustain its independence regardless of its
all too obvious failings. Last week’s open rebel-
lion against the chief justice was a devastating
hammer blow to the very institution itself which
could do immense damage to its popular support
system which gives it the strength to safeguard
individual liberties and freedoms from Executive
excesses. And this “mutiny” comes at a time
when the apex court has been engaged in a furi-
ous battle with the Executive over what it con-
siders to be encroachment on its powers to make
appointments under the current Collegium sys-
tem. It also comes at a time when hypersu-
premacist members of the ruling dispensation
are calling for a change in the Constitution to
erase its secular character and the principles of
tolerance and coexistence which are embedded
in that concept.
Judges are no angels. They have strong politi-
cal views. There are Modi-haters. There are
RSS-fans. There are some who have been associ-
ated in the past with alleged Wildlife Act viola-
tions involving pachyderms. But institutionally,
they are a protective wall. Breaching this wall
could be a fatal attack on the Constitution. A
divided and splintered Supreme Court is no
DIVIDED THEY FALL Inderjit Badhwar
Lead/Supreme Court/ Judges’ Revolt/ Letter from the Editor
I
6 January 22, 2018
AdividedandsplinteredSupremeCourtisnomatchforanexecutivebranch
hell-bentongrabbingpowerattheexpenseofindividualliberties.A
weakenedchiefjusticeisvulnerabletoattacksfromPIL-crazedlawyersfor
theirownagendas,retiredjudges,statecourts,lawyers’associations.
Anil Shakya

match for an Executive branch hell bent on
grabbing power at the expense of individual lib-
erties. A weakened chief justice is vulnerable to
cheap shots and attacks from PIL-crazed lawyers
for their own agendas, retired judges, state
courts, lawyers’ associations. His very dignity
and authority is at stake. He can be prevented
from making bold decisions on the filling of
vacancies and decreasing pendency. It is shame-
ful that major high courts in Kolkata, Mumbai,
and Delhi still have acting chief justices.
In other countries—the UK being a case in
point—vacancies for the Chief and Deputy Lords
positions (equivalent to our Supreme Court) are
more or less open to competition for qualified
candidates. But in India, it has been traditional
for a retiring chief justice to name his senior-
most deputy as his successor. The likely candi-
date for this choice after Justice Misra retires is
Justice Ranjan Gogoi. But what if the retiring
CJI, peeved by Justice Gogoi’s participation in
the open rebellion, refuses to name him? Would
not this open up a Pandora’s Box of politics with-
in the benches and give the Executive an open
invitation to interfere? Would not this weaken
the Supreme Court’s defence of the Collegium
system and pave the way for the Executive to
pack the judiciary with its own political choices
and facilitate the domination of the doctrine
of Executive Privilege over the Separation of
Powers?
T
he grievances expressed by the four hon-
ourable judges are not without merit. But
surely they could have been pursued
without bringing the CJI and the judiciary into
public disrepute and thereby weakening its pop-
ular base of support in these extremely troubled
political times when there is need for judicial
unity to combat the forces of extremism and
polarisation and selective violence. Surely, one
method could have been a signed letter to the
president, conveniently leaked to the Press.
Supreme Court judges do not need popular
pulpits as do JNU and BHU students to air their
grievances publicly. Imagine the judicial may-
hem which could ensue if groups of High Court
and Sessions judges began behaving in a similar
vein. All semblance of authority would be
eroded. And an already flawed system would go
to hell.
What can be divided can be ruled. And that is
what seems to be happening now. Already
tongues are wagging. Supreme Court watchers
say the apex benches are now factionalised into
camps—Justice Gogoi camp, Justice Kurian
camp, Justice Lokur camp, Justice Chelameswar
camp, Justice Ramana camp…and there’s the
“neutral “camp consisting of judges like
Chandrachud, Nariman, Lalit, and Bobde…
This is not a blind defense of Chief Justice
Misra who is undoubtedly in an uncomfortable
position and who, I am sure would acknowledge
many of the criticisms as valid. It is aimed at
protecting the institutional importance of the
chair he occupies from the perils of politicisa-
tion. It is aimed at reminding the honourable
judges that if the judiciary is allowed to be
reduced to ashes, there will be little or no chance
of another Justice Hans Raj Khanna rising like a
phoenix out of the fire to challenge Indira
Gandhi when she was at her imperious worst.
As Ben Franklin once advised the Americans:
“We must all hang together, or assuredly we shall
all hang separately.” I believe that devastating
axiom applies today to the Indian judiciary more
than it ever did.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
ThisisnotablinddefenseoftheCJIwhoisinanuncomfortableposition.Itis
aimedatremindingthejudgesthatifthejudiciaryisallowedtobereducedto
ashes,therewillbelittleornochanceofanotherJusticeHansRajKhanna
(right)challengingIndiraGandhiwhenshewasatherimperiousworst.

8 January 22, 2018
N a rebellion that has never been
seen in the 70-year-old history of
the Supreme Court, four of its sen-
ior-most judges came together on
January 12 to launch a blistering
attack against Chief Justice Dipak
Misra. The scathing criticism by Justices
J Chelameswar, Ranjan Gogoi, Madan B
Lokur and Kurian Joseph has opened a
Pandora’s Box. Not only has their out-
burst severely undermined the hitherto
untainted image of the highest court of
the land but it has also provided fertile
ground for an eager Executive to possi-
bly interfere more aggressively in the
functioning of the Supreme Court.
As is always the case with such an
unprecedented move, the opinion on
whether the “Rebellious Four” were
right in voicing their grievances before
Inamovethathasshockedthenation,fourseniorjudgesoftheapexcourtcalleda
pressmeettoattackthechiefjusticeandjudicialprocedures.Bysayingthatdemocracy
isindanger,theyhaveexposedariftintheCourtwhichhasalarmingconsequences
By Puneet Nicholas Yadav
Mutiny
on the Bench
Lead/ Supreme Court/ Judges’ Revolt
PAIN AND ANGUISH
(L-R) Justice Kurian Joseph,
Justice Jasti Chelameswar,
Justice Ranjan Gogoi and
Justice Madan B Lokur
addressing a press
conference in New Delhi
I
UNI

It is with great anguish and concern
that we have thought it proper to
address this letter to you so as to high-
light certain judicial orders passed by
this Court which has adversely affected
the overall functioning of the justice
delivery system and the independence
of the High Courts besides impacting
the administrative functioning of the
Office of the Hon’ble Chief Justice of
India.
One of the well settled principles is
that the Chief Justice is the master of
the roster with a privilege to determine
the roster, necessity in multi-numbered
courts for an orderly transaction of busi-
ness and appropriate arrangements
with respect to matters with which mem-
ber/bench of this Court (as the case
may be) is required to deal with which
case or class of cases is to be made.
The convention of recognising the privi-
lege of the Chief Justice to form the ros-
ter and assign cases to different num-
bers/benches of the Court is a conven-
tion devised for a disciplined and effi-
cient transaction of business of the
Court but not a recognition of any supe-
rior authority, legal or factual of the Chief
Justice over his colleagues. It is too well
settled in the jurisprudence of the coun-
try that the Chief Justice is only the first
amongst the equals – nothing more or
nothing less. In the matter of the deter-
mination of the roster there are well-set-
tled and time honoured conventions
guiding the Chief Justice, be it the con-
ventions dealing with the strength of
the bench which is required to deal with
a particular case or the composition
thereof.
A necessary corollary to the above
mentioned principle is the members of
any multi-numbered judicial body,
including this court, would not arrogate
to themselves the authority to deal with
and pronounce upon matters which
ought to be heard by appropriate
benches, both composition wise with
due regard to the roster fixed.
We are sorry to say that off late the
twin rules mentioned above have not
been strictly adhered to. There have
been instances where case having far-
reaching consequences for the Nation
and the institution had been assigned
by the Chief Justices of this court selec-
tively to the benches “of their prefer-
ence” without any rationale basis for
such assignment. This must be guarded
against at all costs.
In the above context, we deem it pro-
per to address you presently with re-
gard to the order dated 27 October,
2017 in R.P Luthra vs Union of India to
the effect that there should be no further
delay in finalising the Memorandum of
Procedure in the larger public interest.
When the Memorandum of Procedure
was the subject matter of a decision of
Constitution Bench this Court in Sup-
reme Court Advocates-on-Record
Association and Anr. Vs. Union of India
[(2016) 5 SCC 1] it is difficult to under-
stand as to how any other Bench could
have dealt with the matter.
The above part, subsequent to the
decision of Constitution Bench, detailed
discussions were held by the Collegium
of five judges (including yourself) and
the Memorandum of Procedure was
finalised and sent by the then Hon’ble
the Chief Justice of India to the Govern-
ment of India in March 2017. The
Government of India has not responded
to the communication and in view of
this silence, it must be taken that
the Memorandum of Procedure
as finalised by the Collegium
has been accepted by the
Government of India on the basis of the
order of this Court in Supreme Court
Advocates-on-Record Association
(Supra). There was, therefore, no occa-
sion for the Bench to make any obser-
vation with regard to the finalisation of
the Memorandum of Procedure or that
that issue cannot linger on for an indefi-
nite period.
Any issue with regard to the Memo-
randum of Procedure should be dis-
cussed in the Chief Justices Conference
and by the full court. Such a matter of
grave importance if at all required to be
taken on the judicial side should be
dealt with by none other than a Consti-
tution bench.
The above development must be
viewed with serious concern. The
Hon’ble Chief Justice of India is duty
bound to rectify the situation and take
appropriate remedial measures after a
full discussion with the other members
of the Collegium and at a later stage, if
required, with other Hon’ble Judges of
this court.
Extractsfromthefourjudges’letter
toChiefJusticeDipakMisra
Chief Justice
Dipak Misra

10 January 22, 2018
a media that is notorious for exaggerat-
ing conflicts and letting their emotions
get the better of their judgment, is
sharply divided. Those in support of
the four judges have justified their move
by reiterating what Justices Chelames-
war and Gogoi told the media—that
they were paying a debt to protect the
institution they serve. The naysayers
have been quick to ask for their
impeachment.
At least two facets of this rebellion
are undeniable—the image of the high-
est judicial authority of the country has
taken a severe beating and the integrity
of a seemingly unimpeachable pillar of
our democracy has been dented. What
the four judges said about Chief Justice
Misra can certainly not be dismissed
lightly. Their allegations are damning
and a signal of ominous times.
Addressing the media at his Tughlaq
Lane residence in Delhi even as the
chief justice was presiding over matters
in the Supreme Court, Justice Chela-
meswar said that “it is with no pleasure
that we’ve called this press conference”.
He added: “The administration of the
Supreme Court is not in order. Many
things which are less than desirable
have happened in the last few months.”
These opening remarks set the ball
rolling for what quickly turned into a
full frontal attack against the chief jus-
tice, stopping just short of calling for his
impeachment, something the four jud-
ges said should be left for the nation
to decide.
Justice Chelameswar made it clear
JusticeJastiChelameswar
Dateofappointment:October10,2011
Dateofretirement:June22,2018
Justice Jasti Chelameswar was born on June
23, 1953, in Krishna District of Andhra
Pradesh. After completing his schooling from
Hindu High School at Machilipatnam in
Krishna District, he graduated from Loyola
College in Chennai in physics. He graduated
as a lawyer from Andhra University, Visakha-
patnam, in 1976. Soon after being designat-
ed as a senior counsel, Justice Chela-
meswar was appointed as additional advo-
cate general on October 13, 1995. Within a
short span of two years, he was elevated as
additional judge in the High Court of Andhra
Pradesh. He was made chief justice of
Gauhati High Court in 2007 and later trans-
ferred to Kerala High Court, where he
became chief justice on March 17, 2010.
He has often been the main dissenting
voice in the Supreme Court and was the
main judge who criticised the Collegium sys-
tem. In October 2016, he became the lone
judge on the five-judge Constitution Bench
led by Justice JS Khehar, which scrapped
the National Judicial Appointments
Commission law. He often chose to opt out
of Collegium meetings. He was also a mem-
ber of the three-judge bench which con-
firmed that the Aadhaar card is not compul-
sory. In 2014, he wrote a dissent note
against holding open court hearings to
review petitions of death row convicts. Along
with Justice Rohinton F Nariman, he gave
a landmark ruling on civil liberties and right
to freedom of speech in the Shreya
Singhal case.
JusticeRanjanGogoi
DoA:April23,2012
DoR:November17,2019
Justice Ranjan Gogoi was born on Novem-
ber 18, 1954, in Assam. He joined the Bar in
1978 and practised mainly in Gauhati High
Court where he was appointed a judge in
2001. In 2010, he was transferred to Punjab
and Haryana Court and made chief justice of
the Court the next year. On April 23, 2012, he
became a judge in the Supreme Court.
Justice Gogoi will be the senior-most
judge when Chief Justice Misra retires and is
most likely to succeed him later this year. If
he does so, he will be the first CJI from the
North-east.
One of his best known judgments was
that a woman cannot be the karta of a joint
family, but she can be its manager.
He was also part of the bench that
restrained publishing of photographs of
political leaders in government-funded
advertisements and which set aside a
notification to include Jats in the Other
Backward Classes list. He also led the
bench which heard the sworn statement
of a former CBI officer in the Rajiv Gandhi
assassination case.

“mutineers”, sources say, had also been
peeved at being overlooked by the “mas-
ter of the roster” (the chief justice) when
assigning crucial cases to the benches.
There were many flashpoints between
them and the chief justice in recent
months. Chief Justice Misra had
that he and his three colleagues had
decided to come before the media only
after their collective effort to resolve
issues with the chief justice—the latest
having been made just hours before this
interaction—had failed. “We tried to col-
lectively persuade the chief justice that
certain things are not in order and he
should take remedial measures. Unfor-
tunately, the measures failed... We were
left with no choice except to communi-
cate it to the nation that please take care
of the institution... Unless the institu-
tion of Supreme Court is preserved, de-
mocracy won’t survive in this country,”
he said.
It is well-known that tension had
been simmering between Justice Chela-
meswar and Chief Justice Misra for a
while now. Justice Chelameswar’s fellow
Itiswell-knownthattensionhadbeensimmeringbetweenJusticeJastiChelameswar
andChiefJusticeDipakMisraforawhilenow.JusticeChelameswar’sfellow
“mutineers”,sourcessay,hadalsobeenpeevedatbeingoverlookedbythe“masterof
theroster”(thechiefjustice)whenassigningcrucialcasestothebenches.
JusticeMadanBLokur
DoA:June4,2012
DoR:December30,2018
Justice Madan B Lokur was born on
December 31, 1953. He graduated in History
(Hons) from St Stephen’s College, Delhi in
1974 and got his LLB degree from Faculty of
Law, Delhi University, in 1977.
He became an advocate on July 28, 1977,
and practised in the Supreme Court and
Delhi High Court. He became an Advocate-
on-Record in the Supreme Court in 1981 after
passing the exam and was appointed addi-
tional solicitor general of India in 1999.
His area of experience is civil, criminal,
constitutional, revenue and service laws. He
was appointed the editor of Indian Law
Reports (Delhi Series) in 1983. He was also a
standing counsel of the government. In
February 1997, he was designated as a sen-
ior advocate and elevated to the Supreme
Court on July 4, 2012. He is also a member
of the Mediation and Conciliation Project
Committee of the Supreme Court since its
inception in 2005, a judge in-charge of the e-
committee of the apex court and was a one-
man committee to suggest improvements in
the working of homes and organization under
the Juvenile Justice (Care and Protection and
Children) Act, 2000 and the Juvenile Justice
(Care and Protection of Children) Rules,
2007. Justice Lokur along with Justice UU
Lalit, used to head a social justice bench
formed by the SC in 2014, Although it was
later shelved, it heard cases like the rehabili-
tation of Kashmiri Pandits, exploitation of chil-
dren in orphanages in Tamil Nadu and moni-
toring of the Nirbhaya fund.
JusticeKurianJoseph
DoA:March8,2013
DoR:November29,2018
Justice Kurian Joseph was born on
November 30, 1953, and was educated in
various schools and colleges in Kerala. He
also studied in Kerala Law Academy Law
College, Thiruvananthapuram and started his
legal career in 1979 as part of the academic
council of Kerala University. He served as a
government pleader in 1987 and additional
advocate general from 1994 to 1996. In
1996, he was designated a senior advocate.
In 2000, he was elevated to Kerala High
Court as a judge. From 2006-08, he served
as president of the Kerala Judicial Academy.
He twice served as acting chief justice of the
Kerala High Court before being elevated as
chief justice of the Himachal Pradesh High
Court. On March 8, 2013, he became a
judge in the Supreme Court. He believes that
as people have high hopes from the judici-
ary, it must pro-actively participate in the
delivery of justice.
He decided notable cases such as coal
allocation, death penalty for Afzal Guru
and triple talaq. In 2014, he told a 92-year-
old litigant in an open courtroom: “Judges
do not depend on their Chief Justice of
India for courage to serve without ‘fear or
favour’, they derive it from the Constitution
of India.”

12 January 22, 2018
famously overturned Justice Chelam-
eswar’s order of constituting a five-judge
bench in the “judges bribery case” and
overlooked these senior judges in favour
of junior ones in constituting the bench
that will hear the crucial anti-Aadhaar
linking petitions from January 17. He
had also recalled an important order gi-
ven by a two-judge bench on a petition
challenging the delay in finalising the
Memorandum of Procedure for appoint-
ment of judges in the higher judiciary
(See Box on excerpts of the letter writ-
ten by these four judges to the CJI).
The tipping point, however, seems to
have come on the morning of January 12
when a politically sensitive petition con-
cerning the mysterious death of special
CBI judge BH Loya was referred to a
bench headed by Justice Arun Mishra.
Justice Loya was then presiding over the
trial in the controversial Sohrabuddin
Sheikh encounter case in which BJP
president Amit Shah was an accused.
Justice Mishra is known for his proximi-
ty to the chief justice and ranks far be-
low the four rebels in seniority. Inciden-
tally, Justice Mishra’s bench has been
assigned several crucial cases by the
chief justice, overlooking other benches
headed by more senior and experienced
judges, leading to muted accusations of
possible nepotism.
Justice Gogoi stands to lose the most
by his outburst as he is next in line for
elevation as chief justice. Justice Chela-
meswar is set to retire in June, while the
other two rebel judges, though his jun-
ior, will also retire within this year. Jus-
tice Gogoi said unambiguously that
assigning of the Judge Loya case acted
as the proverbial last straw. Many have
been stunned that the rebels included
Justice Gogoi as this revolt could effec-
tively nip his chances of becoming chief
justice. This is not a risk that most jud-
ges of the Supreme Court would find
worth taking.
Reactions by the legal fraternity and
the political brass to this tumultuous
event have been varied. Sensing another
opportunity to put Prime Minister Na-
rendra Modi’s government on the mat
over the issue, the Congress was prompt
to latch on to Justice Chelameswar’s cri-
ticism and assert that “democracy is in
danger”. Congress president Rahul Gan-
dhi told the media: “It is an unprece-
dented event. Points raised by the
Honourable judges need to be looked
into carefully, even Justice Loya’s death
needs to be investigated properly at the
highest level of the Supreme Court.” His
party’s media cell chief Randeep Surje-
wala added: “The Congress Party is
deeply perturbed by these develop-
ments… We earnestly appeal that the
Full Court of the Supreme Court should
take up the issues raised by the four
Honourable judges and find solutions
that are consistent with the traditions
and conventions of the judiciary and
that will preserve the independence of
the judiciary.”
The centre has chosen to stay silent
on the controversy. Prime Minister
Narendra Modi reportedly discussed it
with Union Law Minister Ravi Shankar
Prasad, following which government
sources said that the Executive wants
the issue to be treated as an “internal
matter of the judiciary”. The centre’s
highest law officer, Attorney General KK
Venugopal, while admitting that the
Thetippingpointseemstohave
comeonthemorningofJanuary
12whenapoliticallysensitive
petitionconcerningthe
mysteriousdeathofspecialCBI
judgeBHLoyawasreferredtoa
benchheadedbyJusticeArun
Mishra.JusticeLoyawasthen
presidingoverthetrialinthe
SohrabuddinSheikhencounter
caseinwhichBJPpresidentAmit
Shahwasanaccused.
AUGUST GATHERING
President Ram Nath Kovind after he received
the first copy of book, “The Constitution at
67”, from Chief Justice Dipak Misra during
Constitution Day celebrations in Delhi
PIB

was most unsparing in his criticism of
the four rebels. “I think all four judges
should be impeached. They should be
shut out. They should be sent home.
They have no place now to give judicial
decisions. They’ve started a trade union
there. There are four judges against the
chief justice while 20 others serving in
the Supreme Court are not. Is this a
majority?” he asked.
However, senior advocate Indira
Jaising welcomed the move by the
rebels, stating: “I congratulate them for
having come out and been accountable
for the nation. It is historic and it was
well done. The manner in which the
four judges spoke was beautiful and as
Justices Chelameswar and Gogoi point-
ed out—they did this not out of protest
but because they have a debt to pay to
the institution and the nation. The way
forward now is for the chief justice to sit
and resolve these differences with the
other judges of the Supreme Court.
However, I also wish to ask, why is there
a divide?… Is there interference by the
Executive (in the Court’s functioning)?”
The chief justice has so far refrained
from commenting on this fiasco.
Former Acting Chief Justice of the
Gauhati High Court K Sreedhar Rao,
however, believes that the chief justice
should not speak publicly on the contro-
versy. “If the four judges have compro-
mised the integrity of the Supreme
Court by airing their grievances in pub-
lic, it does not mean that the chief jus-
tice should do the same. He must dis-
cuss the matter internally and find a
solution to this mess as him going to the
press will only escalate matters and add
to the noise,” he said.
It is still too early to guess how exactly
this acrimony in the Supreme Court will
end but what is certain is that a prece-
dent has been set. However, the judiciary
will best avoid a repeat of it if it wishes to
retain the faith that the common man
has in this pillar of democracy.
press interaction by the judges “could
have been avoided”, also underscored:
“You can take it from me that the whole
of the differences will be settled in the
next few days. You wait till day after
tomorrow (Sunday).” He added: “The
judges will now have to act in states-
manship and ensure that the divisive-
ness is wholly neutralised and total har-
mony and mutual understanding will
prevail in future (sic).”
It was on May 7, 1997, that the Sup-
reme Court in its Full Court adopted a
Charter called the “Restatement of
Values of Judicial Life” to serve as a
guide for judges. The resolution express-
ly forbids members of the judiciary from
entering into a public debate "on politi-
cal matters or on matters that are pend-
ing or are likely to arise for judicial
determination" and against giving inter-
views to the media.
While many legal and political lumi-
naries who have criticised the four jud-
ges for their outburst claim that violat-
ing the “Restatement Resolution” and
dragging the CJI into an ugly public de-
bate are grounds for contempt charges
being slapped against them, others like
BJP veteran Yashwant Sinha said:
“When national interest is at stake, the
ordinary rules of business do not apply.”
Indeed, Justice Chelameswar himself
told the media: “We don’t want wise
men saying 20 years from now that Jus-
tices Chelameswar, Gogoi, Lokur and
Joseph sold their souls and didn’t do the
right thing by our Constitution.”
The rebellion has sharply divided the
legal fraternity. Retired Justice RS Sodhi
Twitter: @inalienability
Website: www.inalienability.com
Contact: editor@inalienability.com
“Itisanunprecedented
event.Pointsraisedby
theHonourablejudges
needtobelookedinto
carefully,evenJustice
Loya’sdeathneedstobe
investigatedproperlyat
thehighestlevelofthe
SupremeCourt.”
—RahulGandhi,
Congresspresident
“Ithinkallfourjudges
shouldbeimpeached.
Theyshouldbeshut
out.Theyshouldbe
senthome.Theyhave
noplacenowtogive
judicialdecisions.
They’vestartedatrade
unionthere.”
—JusticeRSSodhi,
formerjudge
“Icongratulatethemfor
havingcomeoutandbeen
accountableforthe
nation.Itishistoricandit
waswelldone….Theway
forwardnowisfortheCJI
tositandresolvethese
differenceswiththeother
judgesoftheSC.”
—IndiraJaising,
senioradvocate

14 January 22, 2018
“
RINGSIDE
“We believe in the
Constitution and trust in
the philosophy of Savitri
Phule, Ambedkar, Bhagat
Singh and others. You con-
tinue to put false charges
on us but we will continue
to sing our message of love
and talk about the poor
and the oppressed.”
—Gujarat’s Dalit MLA
Jignesh Mevani at a rally
in Delhi
“Since childhood, we have
been reading that Newton
discovered the law of grav-
ity, but in reality, an Indian
astronomer discovered it,
if you revisit history.”
—Rajasthan education
minister V Devnani, refer-
ring to Indian astronomer
Brahmagupta-II
“The Council has thought
it just and proper to seek
the comments of those
lawmakers who are in
legal practice, before
taking any final decision
in this matter. It is a
very important issue
which may have far-reach-
ing effect.”
—Manan Kumar Mishra,
chairman, Bar Council of
India, on whether lawyers
can practise after
becoming legislators
“The journalists exposing
the Aadhaar breach
deserve an award, not an
investigation. If the gov-
ernment were truly con-
cerned for justice, they
would be reforming the
policies that destroyed the
privacy of a billion
Indians. Want to arrest
those responsible? They
are called @UIDAI.”
—American whistleblower-
in-exile Edward Snowden
“We may be fighting BJP
but our focus is to provide
a vision for India. If we
give a new Congress party
to India, it is not a big task
to defeat the BJP... We are
working on it. You will see
dramatic change in Cong-
ress and you will see lead-
ers you can have trust in.
We will give you a new shi-
ning Congress. I assure you
that Congress has the
power to defeat BJP in
2019 elections.”
—Congress president Rahul
Gandhi while addressing a
convention of non-resident
Indians in Bahrain
“Our development aid is
not based on the give-and-
take model. Rather, it
depends on the needs and
priorities of those coun-
tries. We have no intention
of exploiting their resources
and we don’t eye their
territory....”
—PM Modi while addressing
the conference of world par-
liamentarians and political
leaders of Indian origin
“We need to be thankful to the authorities
for re-introducing a dash of passion and
energy and anger into the heart of every
single Rachna Khaira who is out there in every
single newsroom. We need to be thankful to the
authorities for being so clumsy, so bureau-
cratic and so haughty—because responsible
journalism never felt as joyful as it does
this afternoon.”
—Tribune editor Harish Khare on his reporter’s éxposé
related to Aadhaar, at an event in Delhi

The Unique Identification Authority of
India (UIDAI) may be going over-
board in its efforts to claim that there
has been no breach of security fol-
lowing the sensational sting by a
Tribune reporter, but its knee-jerk
reaction exposes the cover-up. There
are around 5,000 officers, some pri-
vate technical experts but mostly offi-
cial administrators, across the coun-
try with access to the Aadhaar plat-
form, mainly to allow them to update
and make changes to personal
details of individual Aadhaar card
holders. These officers are posted in
Delhi as well as in each state.
Following the sting, UIDAI has
blocked their access, a sure sign
that there was a breach and that too
by someone with administrative-level
access to the UIDAI portal.
An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
ARIF’S NEXT MOVE
The Prime Minister’s aides are try-
ing to squeeze as much as possi-
ble out of Narendra Modi’s hectic
24-hour trip to Davos to attend the
World Economic Forum’s annual
meeting. The maximum effort is
being spent on trying to squeeze
in a one on one with US President
Donald Trump who arrives barely
hours before Modi’s scheduled departure
from Davos on January 23. The PM arrives on
the 22nd evening and will host a dinner for
100 carefully selected CEOs of transnational
companies. He addresses the inaugural ple-
nary session at 11 am the next day after
which he has a meeting with the president of
the Swiss Confederation. Trump’s tentative
programme means he arrives in Davos on
the 23rd, and despite frantic efforts from the
Indian side, a meeting seems unlikely since
Modi leaves a few hours later—he has to be
back in Delhi to host an informal summit of
ASEAN leaders on January 25.
IDENTITY CRISIS
The BJP’s high-pitched criticism of Rahul
Gandhi’s remarks at his meeting with NRIs in
Bahrain when he was bitingly critical of the Modi
government suggests that they are worried by the
Congress president’s outreach. The fact is that
Modi himself has mocked the previous govern-
ment for corruption during his US visits so it’s
merely a case of tit for tat, but the sharp reaction
by BJP union ministers tells another story. NRIs
are seen as Modi’s strongest backers and the
BJP’s overseas affiliates are a key source of party
funds, and lobbying with foreign governments
and media and corporate entities. The centre’s
haste in pushing a bill to allow proxy voting by
NRIs is another sign of their importance to the
party. Rahul’s outreach to overseas Indians,
being coordinated by tech entrepreneur Sam
Pitroda, could make a dent in that constituency—
RG’s interaction
with students
and techies in
the US was quite
a success and
his overseas
outreach will
continue, which
is why the BJP
is worried.
FOREIGN FRACAS
In 1986, protesting against the
Rajiv Gandhi government’s
Muslim Women (Protection of
Rights on Divorce) Act, Arif
Mohammed Khan—then a
union minister and confidant of
the PM—resigned from the
Congress party. He was slowly
pushed into the wilderness, los-
ing three consecutive elections
from his Bahraich constituency.
Khan’s political credibility swiftly
eroded. Now, over 30 years
after the Shah Bano verdict,
Khan seems to be back in polit-
ical reckoning.
It was Khan who worked
with the Union law ministry on
the broad contours of the con-
troversial Muslim Women
(Protection of Rights on
Marriage) Bill—popularly
referred to as the anti-triple
talaq bill—following a secret
meeting between him and
Narendra Modi at the PMO on
October 6. It appears that Khan,
who already shares an excellent
rapport with RSS chief Mohan
Bhagwat, has earned the trust
of Modi. The corridors of the
saffron fort are abuzz with spec-
ulation about Khan soon joining
the BJP. An acclaimed Islamic
scholar with an axe to grind
with the Congress,
Khan is the ideal
Muslim “pos-ter
boy” that the BJP
would want to flaunt
before the
2019 polls.
CHASING TRUMP

Giving utmost importance to the health of
an individual, the Supreme Court for the
time being stayed the verdict of the Karna-
taka High Court on pictorial warnings dis-
played on packets of cigarettes and other
tobacco products. It was hearing several
petitions against the High Court’s decision.
The High Court had, in December 2017,
quashed the amendments made in 2014 by
the centre in the Cigarette and other Tobacco
Products (Packaging and Labelling) Rules
that required that health warnings must cover
85 percent of the principal display area of
such packets.
The counsel challenging the High Court
judgment, including Attorney General KK
Venugopal, cited health reasons and the im-
pact tobacco consumption has on families.
They argued that the State has an obligation
but the High Court allowed the tobacco com-
panies to have an advantage. However, sen-
ior lawyer Kapil Sibal, appearing for the
tobacco industry, argued that the pictorial
warnings had no scientific basis and the cen-
tre should instead ban tobacco products. The
85 percent pictorial warnings denied manu-
facturers the right to do business, he argued.
The final hearing will be on March 12.
Senior advocate Indu
Malhotra has earned the
distinction of being the first
woman lawyer to be picked
up directly from the Bar and
be made a judge of the
Supreme Court. The apex
court collegium led by Chief
Justice of India Dipak Misra
has cleared her name.
Malhotra practises in the
top court. She had earlier in
2007 also become only the
second woman to
be designated a senior
advocate by the Supreme
Court.
The collegium has also
chosen Justice KM Joseph,
the chief justice of the
Uttarakhand High Court, to
be a judge of the apex
court. Both the names have
been sent to the law min-
istry and are awaiting
approval.
Courts
16 January 22, 2018
The Supreme Court made
changes in its November
2016 order on the national
anthem being played in cine-
ma halls be-fore a movie
screening starts, and made
it optional for them. Earlier,
playing of the national
anthem was mandatory. The
Court, however, ruled that
people will have to stand up
if at all the anthem was
being played.
The centre in a change of
its stance had requested the
Court to review its earlier
order and make it optional. It
informed the top court that
an inter-ministerial commit-
tee was examining the
issue of singing and playing
of the national anthem and
will present its report in
six months.
The central government
will then take a call on the
matter, it said.
National anthem order modified
—Compiled by Prabir Biswas
Do KV morning
prayers violate
Article 25?
SC lays
stress on
health, stays
HC order
The Supreme Court will take a
call on whether the practice of
reciting Sanskrit shlokas and pra-
yers in Hindi at Kendriya Vidyalayas
is against the fundamental right to
religious freedom. It was hearing a
plea that alleged that students, tea-
chers and principals from different
faiths were reciting such prayers,
propagating Hinduism, under com-
pulsion during the morning assem-
bly and stated it was unconstitu-
tional. Even those who do not
believe in god were made to recite
them, the petition alleged. It de-
manded that the practice be done
away with. The Court has sought
the centre’s response.
Hanging the only
option, says centre
The Supreme Court has asked
the centre to clear its position
on the death sentence in an affi-
davit in four weeks. The centre
conceded orally that the practice of
hanging by the neck was the only
viable option. The Court also asked
the centre to let it know the prac-
tices adopted by other countries. It,
however, observed that it could not
dictate the mode of killing. The
Court had earlier asked the centre
and parliament to look for options
which were less painful. The matter
had come up on a plea that
demanded abolition of hanging and
favoured other milder methods like
lethal injections or shooting.
Indu Malhotra
creates history

Supreme Court/ Judicial Delays
18 January 22, 2018
AMU, a prisoner, sen-
tenced by a trial court to
life imprisonment for riot-
ing and murder in 2007
and lodged in District Jail,
Unnao, Uttar Pradesh,
first appealed against his conviction in
the Allahabad High Court. As the
appeal was pending for a decade, he
sought bail. When the High Court
rejected it, he moved the Supreme
Court, which too was not inclined to
interfere with the High Court order.
However, the Supreme Court bench
of Justices J Chelameswar, Abhay
Manohar Sapre and Amitava Roy on
March 31 last year directed the High
Court to decide his appeal within four
months. It ordered this due to the huge
pendency of cases before the High Court
because of which it would take several
years for the disposal of the appeal.
Further, the bench decided to
address the larger issue of mounting
pendency and delay in disposal of cases,
both before district and high courts. The
bench was curious to know why in spite
of exhaustive directions from the apex
court for speedy trials and disposal of
criminal appeals, as ingrained in Article
21 of the Constitution, nothing had
changed on the ground. The bench
noted that the reason for the huge pen-
dency perhaps lay in the general nature
of these directions. Therefore, specific
The Long, Tortuous Wait
Astheapexcourtseekseffectivesolutionstomountingpendencyinhighcourts,
ithasfelttheneedtoinitiateatarget-specificexercisetoanalysedataandstarted
withtheAllahabadHighCourt
By Venkatasubramanian
R
DOGGED BY DELAYS
People waiting at Gurgaon District Court;
(facing page) Allahabad High Court
Anil Shakya

guidelines based on the recorded data of
pending criminal appeals, to start with
as a pilot project, of the Allahabad High
Court might be an answer.
T
he choice of the High Court, we
may clarify, is only in view of the
extent of pendency and the fre-
quently expressed concern over the rela-
tively longer disposal time in the adjudi-
cation of the criminal appeals before it,
which as well is noticeable from the con-
temporaneous records. We wish to state
that the selection of the High Court by
no means is an indication of any defi-
ciency in the functioning or the ongoing
endeavours on its part in addressing the
issue and ought to be viewed as a step, if
possible, to reinforce the same in the
espousal of a public cause founded on
the cherished right of personal liberty,
however, in accordance with law,” the
bench had observed in its order.
The bench emphasised that not only
the custodial restraint of those detained
has to be sanctioned by law, but that any
undue and unjustified delay in the
redressal processes initiated by them
would have the potential of their deten-
tion being adjudged as violative of their
constitutionally secured right to fair and
speedy justice.
The bench further observed:
“Though the delay in disposal of the tri-
als and the appeals, in varying degrees,
may be traceable to several causes, e.g.,
infrastructural, logistical and otherwise,
the spectre of prolonged pendency
thereof for years together is a distressful
reality. There are instances where the
criminal appeals against conviction have
been and are being rendered infructu-
ous, the convict appellants having dur-
ing the pendency thereof served the
terms of imprisonment imposed on
them. Qua, a life convict as well, a delay
of 15 to 20 years in the disposal of his
appeal against conviction would for all
practical purposes frustrate his chal-
lenge thereto.”
The bench, therefore, felt the need to
initiate a target-specific exercise by
analysing relevant data with regard to
the pendency of criminal appeals before
the Allahabad High Court, and explore
remedial steps to expedite the hearing
and disposal of pending cases. The
bench thus directed the Registrar
General of the High Court to furnish the
relevant data.
On January 5, Ramu’s pending
appeal was heard by Justice
Chelameswar along with Justice Sanjay
Kishan Kaul after a gap of several
“Thoughthedelayindisposalofthetrials
andtheappeals...maybetraceableto
severalcauses...thespectreofprolonged
pendencythereofforyearstogetherisa
distressfulreality.”–SupremeCourt
Reacting to the issue of pendency of
cases, Justice Bhanwar Singh, for-
mer judge of the Allahabad High
Court, told India Legal: “A total of
40.54 lakh cases are pending across
the country in 24 high courts. This
amounts to an almost 44 percent
shortage of judges at a time when
the judiciary and the executive are in
conflict over the appointment of
judges. Over 9.24 lakh cases are
pending in the Allahabad High Court.
With the existing strength, it may take
50 years or more to decide only
pending cases. The immediate
appointment of judges is required to
expedite cases or else the delay
would end up in denial of justice.
Justice Sudhir Agarwal of Allahabad
High Court did a commendable job
in clearing one lakh cases during his
tenure of over 12 years.”
“Justicedelayedis
justicedenied”

20 January 22, 2018
Supreme Court/ Judicial Delays
months. Although the Registrar of the
Allahabad High Court had submitted
the relevant data on May 6 last year, the
Supreme Court took its own time to
direct its registry to furnish its copy to
Ramu’s counsel. The bench also sought
Ramu’s conduct report from the District
Jail, Unnao, to be considered on
February 6 to review his bail plea afresh.
Apparently, the bench’s direction to the
High Court last year to hear and decide
his appeal within four months from
March 31, 2017, was not complied with.
But the High Court’s report to the
Supreme Court on the status of penden-
cy of cases is sure to shock the bench
and the counsel. As many as 14
criminal appeals filed nearly 40 years
ago are pending disposal. Of these,
two were filed in 1976, four in 1977 and
eight in 1978. More than 13,600 crimi-
nal appeals are reportedly pending for
more than 30 years in High Court.
It is no wonder that the Supreme
Court’s direction to hear and decide
Ramu’s criminal appeal out of turn
could not be complied with without dis-
criminating against other prisoners who
might have been in custody for longer
than him.
The Allahabad High Court has
reportedly told the Supreme Court that
one of the main reasons for delay is the
almost 50 percent vacancy in judges’
posts as the Court has a working
strength of 108, which includes 65 per-
manent and 43 additional judges, along
with 52 vacancies.
According to the High Court, the
average disposal time of an appeal is
about 11.39 years. The Court cited its
lack of sufficient skilled employees for
its failure to utilise e-courts and tech-
nology to expedite the hearing of cases.
Faced with the defensive stand of the
High Court, the Justices Chelameswar-
Kaul bench appointed senior advocate
MN Rao as the amicus curiae to assist
I
nordinate delays in high courts in dis-
posal of appeals from undertrials and
convicts who have been in custody for
a long period mar the credibility of the
judicial system. Different benches of the
Supreme Court have, time and again,
emphasised the need to cut down delays
to ensure expeditious delivery of justice.
In A.R. Antulay v R.S. Nayak, (1992),
the Supreme Court held that speedy trial
at all stages is part of reasonable, fair
and just procedure, guaranteed under
Article 21. This constitutional right, the
Court held, cannot be denied even on
the plea of non-availability of financial
resources. The Court is entitled to issue
directions to augment and strengthen
investigating machinery, setting up of
new courts, building new courthouses,
providing more staff and equipment to
the courts, appointment of additional
judges and other measures, as are nec-
essary for speedy trial.
The Supreme Court has further held
that deprivation of personal liberty with-
out ensuring speedy trial is not consis-
tent with Article 21. While this deprivation
for some time may not be avoidable, the
period of deprivation pending trial/appeal
cannot be unduly long. The Court held
that while a person in custody for a grave
offence may not be released if the trial is
delayed, it has to be expedited or bail
has to be granted in such cases.
In Thana Singh v Central Bureau of
Narcotics (2013), the Supreme Court
directed that liberal adjournments must
be avoided and witnesses, once pro-
duced must be examined on consecutive
dates. Directions were also issued for
setting up of sufficient laboratories, for
disposal of seized narcotics and for pro-
viding charge-sheets and other docu-
ments in electronic form in addition to
hard copies to avoid delay.
In Akhtari Bi (Smt.) v State of Madhya
Pradesh (2001), the Supreme Court
observed that it is incumbent upon high
courts to find ways and means to ensure
the disposal of criminal appeals, particu-
larly those where the accused are in jail
and see that the matters are disposed of
within the specified period not exceeding
five years. Regular benches to deal with
criminal cases can be set up where such
appeals are listed for final disposal, the
Court said.
It further observed that if an appeal is
not disposed of within five years for no
fault of the convicts, they might be
released on bail on such conditions as
may be deemed fit and proper by the
court. There may be cases where even
after the lapse of five years, the convicts
may, under the special circumstances of
the case, be held not entitled to bail
pending the disposal of the appeals filed
by them.
In Bhim Singh v Union of India (2015),
the Supreme Court directed the centre to
Cutdowndelays,stressesSC
Anil Shakya

the court in finding a practical solution
to what appears as a systemic issue.
Even as the Supreme Court finds a
solution elusive, a recent report by NGO
Daksh in Bengaluru called “Approaches
to Justice in India” has the potential to
help the Court find effective remedies.
According to Harish Narasappa,
Daksh’s co-founder, implementing the
Supreme Court’s orders to ensure expe-
ditious disposal of pending cases
requires efficient day-to-day functioning
of subordinate as well as high courts.
Creation of a full-time senior adminis-
trative cadre for the judiciary is
inevitable and needs to be done at the
earliest, says the report.
Narasappa says that the appointment
of full-time administrators is a decision
that can be taken by the chief justice of
each high court, and it does not require
elaborate approvals by different institu-
tions. Daksh’s analysis shows that
between 45-55 percent of court time is
spent on non-substantive issues such as
re-issuing summons, fixing dates for
future hearings and similar case
administration decisions.
Delegating these functions to an
administrative officer will give every
judge nearly double the time each day
for dealing with substantive matters and
can significantly improve day-to-day
efficiency, he suggests.
I
ncidentally, case flow management
rules notified by most high courts
already provide for such delegation.
However, this has not been implement-
ed successfully because the registry in
subordinate courts does not have suit-
able officers who can deal with these
issues authoritatively.
An immediate step that can be taken,
says Narasappa, is to appoint retired
district judges for a period of two years
to deal with the procedural matters in
the registry.
In a comparative study by Daksh to
analyse the reasons for delay in high
courts and subordinate courts, a total of
91,797 hearings for 6,167 cases were
examined across 12 courts. It found that
for 40 percent of these hearings, other
than the date of hearing, absolutely no
additional information on proceedings
was provided.
Of the hearings for which informa-
tion was available, 47 percent were
adjournments. The reasons for the
adjournments were varied and
attributed to all the actors in the
system, including the judge, parties
to the case, advocates, witnesses and
court administrators.
Further, in an additional 7.25
percent of the hearings, no reason was
given for the grant of adjournment.
This shows that judges were operat-
ing in contravention of the Code of Civil
Procedure, 1908, which expressly states
in Order 17 Rule I that reasons for
adjournment must be recorded in writ-
ing by the judge.
Unless judges operate in accordance
with procedure, there is no chance of
improving efficiency and addressing
delay and backlog, the report says.
As the Chelameswar-Kaul bench
resumes hearing in Ramu’s case on
February 6, it might be in order for it to
take note of this report.
take steps in consultation with states in
fast-tracking all types of criminal cases
so that justice is delivered expeditious-
ly. It was observed by the Court that as
more than 50 percent of the prisoners
in various jails are undertrials, it is
apparent that Section 436A, CrPC, is
being violated. The Court’s answer to
this is the constitution of a review com-
mittee in every district under the chair-
manship of the district judge, to imple-
ment Section 436A.
In Imtiyaz Ahmad v State of Uttar
Pradesh (2012), the Supreme Court
noted that the total number of more
than five-year-old cases in subordinate
courts at the end of 2015 was
43,19,693. The number of undertrials
detained for more than five years at the
end of 2015 was 3,599. The number of
appeals pending in high courts where
detention period is beyond five years
may be still higher, the Court noted.
On March 9, 2017, in Hussain v
Union of India, the Supreme Court
requested High Courts to ensure that
bail applications filed before them are
decided as far as possible within one
month and criminal appeals where the
accused are in custody for more than
five years are concluded at the earliest.
It was held that if there is violation of
the right of speedy trial, instead of
quashing the proceedings, a higher
court can direct conclusion of proceed-
ings within a fixed period.
TheSupremeCourtbenchofJusticesJChelameswar,AbhayManoharSapreand
AmitavaRoy(fromleft,above)wascurioustoknowwhyinspiteofexhaustive
directionsfromtheapexcourtforspeedytrials,nothinghadchangedontheground.

22 January 22, 2018
HANKS to the right to pri-
vacy being deemed a fun-
damental right, the Sup-
reme Court has agreed to
reconsider its 2013 deci-
sion in Suresh Kumar
Kaushal vs Naz Foundation which crim-
inalised gay sex and said it will review
Section 377 of the Indian Penal Code
that makes such relations a crime.
The Court said that what is natural for
one may not be natural for the other,
but the law cannot curtail rights under
Article 21 (right to life) of the Consti-
tution. The SC also issued a notice to
the Centre seeking its response to a writ
petition filed by five members of the les-
bian, gay, bisexual, transgender and
queer (LGBTQ) community, who said
they live in fear of police because of
their natural sexual orientation and
preferences. Among those who filed the
petition were acclaimed dancer Navtej
Singh Johar, journalist Sunil Mehra,
celebrity chef Ritu Dalmia and hotelier
Aman Nath. The petition was argued by
senior advocate Arvind P Datar who
contended that Section 377 was violative
of the fundamental rights of LGBTQs.
Datar urged the court to rule in fa-
vour of their right to sexuality, sexual
autonomy and choice of sexual partner.
He cited the court’s right to privacy
judgment to seek constitutional protec-
tion of sexual minorities from harass-
ment and persecution.
The apex court also referred to a con-
stitution bench the petition seeking to
decriminalise consensual sex between
LGBTQ adults. In December 2013, the
top court set aside the Delhi High
Court’s 2009 verdict decriminalising
homosexuality.
RIGHT TO PRIVACY
A three-judge bench of Chief Justice
Dipak Misra and Justices AM Khan-
wilkar and DY Chandrachud said the
SC's December 2013 judgment uphold-
ing the validity of Section 377—which
says sexual intercourse between con-
senting adults of the same gender is a
crime—appears to hurt the sexual pref-
erences of individuals.
The bench took into account views
expressed in another judgment in
August, which gave the right to privacy
the status of a fundamental right. That
judgment was also in favour of respect-
ing the freedom of individuals regarding
sexual orientation.
After the SC’s privacy judgment in
August, activists and lawyers working
for the LGBTQ community made a
strong case for the rights of sexual
minorities. At the time, activist Gautam
Bhan said the SC’s reading of the right
to privacy as an aspect of dignity and
equality, particularly in the case of
LGBTQ rights, was welcome.
Section 377, enacted by the British
153 years ago in 1860, terms consensual
anal sex as an “unnatural offence” and
provides for punishment equivalent to
that for the offence of rape under
Section 376. It even outlaws oral sex
between a man and a woman, while
holding that only penile-vaginal sex was
not “against the order of nature”.
In 2001, the Naz Foundation, an
NGO working on HIV/AIDS and sexual
health issues, filed a petition in the Del-
hi High Court against Section 377. In
2009, the High Court called Section 377
Time for
Renewed
Hope
Withtheapexcourtagreeing
toreconsiderits2013
decisiontocriminalisegay
sex,theLGBTQcommunity
hopestoleadalifeofdignity
withtheirrightsrestored
By India Legal Bureau
Supreme Court/ Section 377
T
RIGHT TO CHOICE
Queer Azaadi’s annual parade in Mumbai
UNI

a violation of the fundamental rights
guaranteed by the Constitution. It said:
“We declare that Section 377 IPC, inso-
far it criminalizes consensual sexual acts
of adults in private, is violative of Arti-
cles 21, 14 and 15 of the Constitution.
The provisions of Section 377 IPC will
continue to govern non-consensual pe-
nile non-vaginal sex and penile non
vaginal sex involving minors….Secondly,
we clarify that our judgment will not
result in the re-opening of criminal
cases involving Section 377 IPC that
have already attained finality.”
However, religious groups appealed
against the decision in the Supreme
Court. In December 2013, the Supreme
Court overturned the Delhi High Court’s
judgment and said that amending or
repealing this Section should be left to
Parliament. In 2016, a three-member
bench headed by then Chief Justice TS
Thakur said that the curative plea of
Naz Foundation and other gay rights
activists would be reviewed afresh by a
five-member constitutional bench. In
August 2017, when the Supreme Court
upheld the right to privacy as a funda-
mental right, it said sexual orientation is
an “essential component
of identity” and the rights
of the lesbian, gay, bisex-
ual and transgender pop-
ulation are “real rights
founded on sound consti-
tutional doctrine”.
The present writ peti-
tion filed by Navtej Singh
Johar & Ors under Arti-
cle 32 raises two ques-
tions of law:
(1) Whether Section 377
is unconstitutional and
violative of Part III of the
Constitution and thus
ought to be struck down?
(2) Whether Section 377
ought to be read down to
exclude its applicability
to consensual sexual acts
of adults in private, so as
to safeguard the funda-
mental rights of such
consenting adults?
The petitioners requested the
Supreme Court to declare the “Right to
Sexuality” as the “Right to Sexual
Autonomy” and the “Right to Choice of
a Sexual Partner” and to include it as
part of the Right to Life guaranteed
under Article 21 and declare Section 377
unconstitutional.
MAJORITY PERCEPTION
The writ petition was earlier listed be-
fore a double bench of the Supreme
Court in 2016 and later before a bench
of three judges presided over by the
chief justice on January 8, 2017. In the
two-judge bench judgment in Suresh
Kumar Kaushal Vs Naz Foundation
which upheld the constitutional validity
of Section 377, the order said that the
perception of the majority which is
based on social morality stands on a
platform distinct from constitutional
morality. It was submitted that constitu-
tional supremacy would prevail and any
social principle would not be allowed to
come in the way.
Reference was also made to National
Legal Service Authority vs Union of
India and others, where in Para 21 and
22 it said:
“21. Gender identity is one of the
most fundamental aspects of life which
refers to a person’s intrinsic sense of
being male, female or transgender or
transsexual person. A person’s sex is
usually assigned at birth, but a relatively
small group of persons may born with
bodies which incorporate both or cer-
tain aspects of both male and female
physiology. At times, genital anatomy
problems may arise in certain persons,
their innate perception of themselves, is
not in conformity with the sex assigned
to them at birth and may include pre
and post-operative transsexual persons
and also persons who do not choose to
undergo or do not have access to opera-
tion and also include persons who can-
not undergo successful operation.
Countries, all over the world, including
India, are grappled with the question
of attribution of gender to persons who
believe that they belong to the
opposite sex.
“22. Sexual orientation refers to an
individual’s enduring physical, romantic
and/or emotional attraction to another
person. Sexual orientation includes
transgender and gender-variant people
with heavy sexual orientation and their
sexual orientation may or may not
change during or after gender transmis-
sion, which also includes homosexuals,
bysexuals, heterosexuals, asexual etc.
Gender identity and sexual orientation,
as already indicated, are different
concepts.”
The counsel also relied on a nine-
judge bench decision in Justice K.S.
Puttaswamy (Retd.) and another vs.
Union of India and Ors. in 2017 where
the Court ruled that privacy is a consti-
tutionally protected right in India.
The Supreme Court’s new stance has
brought cheer to the LGBTQ communi-
ty and shows that the judiciary is in step
with changing times.
CRIME AND CONSENT: (Clockwise from top left) Dancer
Navtej Singh Johar, journalist Sunil Mehra, celebrity chef Ritu
Dalmia and hotelier Aman Nath have filed the petition

24 January 22, 2018
defeat the Supreme Court’s August 1,
2016 judgment.
The Supreme Court bench, compris-
ing Justices Ranjan Gogoi and Navin
Sinha, while hearing Shukla’s challenge
to the amendment on August 23 last
year, was of the view that the issue rai-
sed in his writ petition was of consider-
able public importance, and would have
an impact on pari materia (similar laws)
legislation in force in different states
and also central legislation, if any. The
bench, therefore, felt there was a need
for in-depth consideration and examina-
tion of several facets of the issue. It then
requested Gopal Subramanium, a senior
member of the Bar, to appear in the case
as amicus curiae, to be assisted by
another advocate, Gopal Sankara-
narayanan. The bench also requested
Subramanium to prepare and circulate a
brief note among the parties, explaining
the legal issues in the case.
AMICUS CURIAE’S NOTE
Subramanium submitted in his note
that for a republican society to exist,
public officials must not be artificially
exalted to a superior class at the expense
Supreme Court/ Govt Accommodation
Housing
Allowance
Thetopcourthasquestionedthe
UPgovernmentforenactingalaw
togiveresidencestoformerCMs.
Thiscouldalsoaffectformer
presidentsandprimeministers
By Venkatasubramanian
N theory, India is a constitutional
democracy, wedded to the princi-
ples of equality and rule of law. In
practice, this is not always so as
some political leaders, merely be-
cause they held public office in the
past, continue to be entitled to go-
vernment accommodation paid for out
of the public exchequer.
This constitutional aberration, taken
for granted all these years, is now under
judicial scrutiny, thanks to Uttar Pra-
desh’s refusal to comply with a judg-
ment of the Supreme Court of India
which deprived former chief ministers
of the state of entitlement to govern-
ment accommodation.
RULES FLOUTED
On August 1, 2006, a three-judge bench
of the Supreme Court, comprising Jus-
tices Anil R Dave, NV Ramana and R
Banumathi, declared the Ex-Chief Min-
isters’ Residences Allotment Rules, 1997,
illegal. This is because it was not in con-
sonance with a law enacted in 1981,
which allowed only 15 days’ grace period
to CMs who had completed their terms
to retain government accommodation.
The bench had directed the former chief
ministers to hand over possession of
their bungalows within two months, and
asked the government to recover appro-
I
priate rent from them for the period
they were staying there illegally.
The petitioner, Lok Prahari, an NGO
based in Lucknow, through its general
secretary, SN Shukla, argued that if
other ministers and constitutional func-
tionaries such as judges, the governor,
the speaker, etc., are not provided
accommodation after completion of
tenure, there is no justification for giv-
ing a government bungalow either free
or for a nominal rent to former chief
ministers. Accepting the contention, the
Supreme Court held that the state has
no right to fritter away government
property in favour of private persons or
bodies without adequate consideration.
Following the top court judgment,
the then Akhilesh Yadav government in
Uttar Pradesh amended the UP Minis-
ters (Salaries, Allowances and Miscella-
neous Provisions) Act, 1981, to allow
former chief ministers to occupy
government bungalows. The amend-
ment was challenged by Lok Prahari as
being unconstitutional, as it aimed to
UNDUE ADVANTAGE
The residence of former Uttar Pradesh chief
minister Mayawati in Lucknow
GopalSubramanium,theamicuscuriaein
thecase,submittedthatforarepublican
societytoexist,publicofficialsmustnot
beartificiallyexaltedintoasuperiorclass
attheexpenseofthecitizenry.

the Supreme Court could strike down
legislation on the ground of arbitrari-
ness. Non-discrimination under Article
14 envisages cessation of privileges on
cessation of public office for all public
officials, he emphasised in his note.
Under such circumstances, creating a
separate class of “ex-chief ministers”
would fall foul of Article 14 for the pur-
pose of conferring privileges, he said.
Relying on the UK Supreme Court,
Subramanium stressed that when deci-
sions of public policy are reached, taking
into account irrelevant considerations or
failing to take into account relevant con-
siderations as well as improper purpos-
es, this will render the policy decision
ultra vires. Subramanium brought to the
notice of the Supreme Court that at least
six states have similar provisions as
Uttar Pradesh in extending benefits and
facilities to former CMs, some of which
have been discontinued but could be
reintroduced. “These raise a question of
principle, and may be dealt with in the
same manner,” he suggested.
FORMER PRESIDENTS, PMS
Subramanium admitted in his note that
the centre also follows a similar policy
by granting former presidents and
prime ministers official residences after
they demit office, and in some cases,
permits their widows to continue in the
residences after their deaths. He refer-
red to a cabinet decision in October
2014 to stop the allotment of bungalows
as memorials, which had hitherto be-
come a common practice.
Citing the fact that other constitu-
tional authorities like the chief justices
of India and comptroller and auditor
generals of India are not entitled to offi-
cial residences after demitting office, he
emphasised that there cannot be dis-
criminatory treatment and allocation of
additional privileges in favour of some
former public servants.
“As this phenomenon seems to be a
nation-wide one, it might be necessary
for a final quietus to be given to this
practice on the anvil of Article 14 of the
Constitution, lest further such claims
emanate from all quarters, including
the legislature, and the judiciary,”
Subramanium concluded.
As the Supreme Court resumes hear-
ing in this case on January 16, all eyes
are trained on how it will respond to
Subramanium’s suggestions.
If the Court is inclined to accept
them, the residences allotted to former
presidents Pranab Mukherjee and Pra-
tibha Patil and former prime ministers
Atal Behari Vajpayee and Manmohan
Singh may well come under scrutiny
before it.
of the citizenry through the conferment
of arbitrary privileges upon them by
their colleagues. Such exaltation of the
ruling elite is a characteristic of authori-
tarian and totalitarian regimes and anti-
thetical to our republican democracy, he
added. Citizens can hold all public offi-
cials to account only where all privi-
leges, rights and benefits conferred on
them are reasonable, rational and pro-
portionate, he explained.
The exaltation or elevation of a cer-
tain class of retired public officials over
other citizens would clearly violate the
scheme of equality created by the Cons-
titution, he submitted. A statute which
confers public property on private citi-
zens who are no longer serving any pub-
lic function would undermine trust and
confidence in the institutions of the gov-
ernment, he argued.
Relying on the Supreme Court’s
judgment in the triple talaq case last
year, Subramanium had proposed that
IMMINENT UPHEAVAL?
(Clockwise from far left) Former
presidents Pratibha Patil and Pranab
Mukherjee, and former PMs
Manmohan Singh and AB Vajpayee

Acts & Bills/ Consumer Bill
26 January 22, 2018
FTER becoming vice-
president, M Venkaiah
Naidu came across an ad
for a medicine that prom-
ised almost magical
weight loss. He paid
`1,230 up front, expecting the pills to
arrive at his doorstep. However, he soon
received an email telling him there was
another tablet he needed to buy and it
would cost another `1,000. Naidu wrote
to the consumer affairs ministry which
located the peddler in the US. So that
bottle of Chanel perfume you gifted your
wife on her birthday? It might well turn
out to be fake, especially if you ordered
it in a “mega e-sale” over the year-end
and paid a substantial discount.
FAKE IN INDIA
A recent investigation, the results of
which are available in the public
domain, has found that more than 60
percent of sports goods being sold
online are counterfeit while 40 percent
of apparel listed is also by duplicate
manufacturers. India is the fifth biggest
exporter of fake goods globally, follow-
ing China, Turkey, Singapore and
Thailand, and the automobile parts
(grey market percentage at 33.7), per-
sonal goods (with a 31.6 percent grey
market), computer hardware (27.9 per-
cent) and mobile phones (25.4 percent)
are the worst affected markets, data
from the Federation of Indian Chambers
of Commerce and Industry says. US
footwear brand Skechers recently filed a
petition against Flipkart and four sell-
ers—Retail Net, Tech Connect, Unichem
Logistics and Marco Wagon—in the
Delhi High Court for allegedly selling
counterfeits. “Flipkart is an online mar-
ketplace that helps sellers connect with
customers across the country,” a compa-
ny spokesperson told the media. “We
only act as an intermediary.”
“Snapdeal complies with the due dili-
gence requirements as specified per
applicable laws. The ‘Terms of Use’ and
‘Report Abuse & Takedown Policy’ for
the marketplace are framed and imple-
mented in accordance. Any complaints
regarding counterfeit products/IPR in-
fringement are promptly acted upon, in-
cluding disabling the product and/or the
seller from using the platform,” a spok-
esperson for Snapdeal told India Legal.
It has come to the knowledge of
India Legal that most online retailers
ask for a letter of authorisation from the
brand and invoices from the supplier
before admitting their product into the
marketplace though they do not conduct
a physical check. If a seller is found ped-
dling counterfeit goods, he is blocked,
the product delinked from the market-
place and a prompt refund ensured.
“We coordinate with brands on a reg-
ular basis to help keep the site clean of
counterfeits. Through our ShopClues
intellectual property protection pro-
gramme or SCIPP, we make it conducive
Imperfect
Legislation
Thenewconsumerprotectionbillseekingtoreplacethe1986Actisgrandindesignandseeks
toreininonlinefraud,buthastoomanycontradictionsandloopholestobeeffective
By Sucheta Dasgupta
A
Withthee-commercemarket
expandingfastthankstoayoung
demographicandrisingsmart-
phonepenetration,thedangerof
receivingfakegoodsisnowreal.

to brands and rights owners to reach out
to us and to protect their IP. Our robust
system under the ShopClues Surety pro-
gramme also ensures that our mer-
chants sell genuine products. We have a
zero tolerance for counterfeit/fake prod-
ucts,” said a ShopClues statement.
Still, with the size of the e-commerce
market increasing by leaps and bounds
(it grew a whopping 45 percent just
from 2016 to 2017), thanks to a young
demographic, rising smartphone pene-
tration and relatively stable economic
growth, the danger of becoming yet
another recipient of fake goods sold
online has become very real.
The Consumer Protection Bill, 2018,
was introduced in the Lok Sabha on the
last day of winter session. It will replace
the archaic 1986 Act and, for the first
time, has brought the e-commerce gian-
ts in its broad ambit. But does it have
the exact provisions to deal with this
new menace? What are its other claus-
es? How will they add teeth to the Act?
FRESH APPROACH
As leading consumer rights activist and
syndicated columnist Pushpa Girimaji
says, the consumer protection councils
and various consumer disputes redressal
commissions and forums have not been
doing “an adequate job in terms of disci-
plining the industry and creating a
healthy respect for the customer”, as had
been envisaged in the 1986 law. The
councils have mostly been non-function-
al while the consumer court does not
offer redress to complainants within the
stipulated 90 days.
“The manufacturers realise that
by filing an appeal, you can go on
Unitech Hi-Tech
Developers was
told to pay over
`3 crore to a couple for failing to give
them possession of an apartment
booked under one of its housing proj-
ects in Noida.
A high-end fashion chain was fined for
charging a customer `97 as VAT on a
discounted pair of trousers worth
`1,609.
Mexico-based
Aeromexico was
asked to pay over
`5 lakh to an
Indian citizen for mishandling his bag on
a trip to Miami in the United States.
The Commission
asked real estate firm
Supertech Limited to
pay over `55 lakh to
a homebuyer for its
failure to hand over possession of a flat
on time.
It directed lux-
ury car maker
Mercedes-Benz
India and
Daimler Chrysler
India to pay over `10 lakh to the owner
of a Mercedes car, holding them guilty
of unfair trade practice after he met
with an accident that took place due to
faulty airbags.
Jet Airways had to
pay compensation of
around `42,000 to a
Kolkata resident who
was not allowed to trav-
el in a New Delhi-
bound flight from London.
Whenthe Consumer
WasKing
Ever since the NCDRC came into
existence in 1988, about 31 lakh
cases have been filed. Of these, 27
lakh have been settled. Here are
some of the consumer court’s
most recent judgments

Acts & Bills/ Consumer Bill
28 January 22, 2018
lengthening the process of adjudication,
drag it from the district forum to the
state commission and the state commis-
sion to the national commission, nation-
al commission to the Supreme Court.
Then there is the complicated process of
jurisprudence. So the consumer courts
did not really create fear of the law in
the minds of the traders and industrial-
ists. Also, the compensation amount was
so meagre that it didn’t really create an
impact. Hence we felt the need of a reg-
ulatory body which will prevent the
offence at the outset rather than a few
adjudicatory bodies dispensing relief
after the consumer has suffered,”
Girimaji tells India Legal.
Along with the then additional,
deputy and joint secretaries, department
of consumer affairs, the then registrar,
National Consumer Disputes Redressal
Commission, professors Ashok Patil and
Suresh Mishra, R Desikan, and George
Chariyan, Girimaji was part of the com-
mittee that drafted the bill and the one
who conceived the Central Consumer
Protection Authority, a key reform.
The Central Consumer Protection
Authority would be a regulator on the
lines of the US Federal Trade
Commission, headed by a chief commis-
sioner, with wide-ranging powers to
launch inquiries, either suo motu or on
a complaint or direction from the gov-
ernment, into violations of consumer
rights, initiate prosecution in an appro-
priate court, recall goods and penalise
errant companies, search premises and
seize products, and order compensation.
If, after preliminary inquiry, the
Central Authority feels that the matter
must go to any other regulator like the
Food Safety and Standards Authority of
India or the Telecom Regulatory
Authority of India, it may refer the mat-
ter to it. On the other hand, anyone
aggrieved by any order passed by the
Central Authority may file an appeal
with the National Consumer Disputes
Redressal Commission (NCDRC) within
a period of 30 days.
In another welcome move, the bill
introduces the much-needed concept of
affixing product liability in sections 82
through 87. For instance, in case of per-
sonal injury, death or property damage
caused to a consumer resulting from
product defects, the manufacturer, pro-
ducer and seller are held liable.
Punishment may extend up to life
imprisonment in some cases.
There are hefty penalties and, in a
first, a jail term for food adulteration
and misleading advertisements. In the
light of more and more celebrity
endorsements, celebrities found to
endorse such advertisements are liable
to pay a hefty fine or endure a ban from
subsequent contracts. Misleading adver-
tisers will attract a two-year jail term for
a first offence and 10 years thereafter.
Food adulterers may get anything
between one year and a life term.
In terms of checking online fraud,
the bill empowers the centre to make
rules for preventing unfair trade prac-
tices in online trade. It also brings new
forms of trade under the purview of the
law, including telemarketing, an area
where fraud and trade malpractices as
well as misleading ads are rampant, says
Girimaji. “They violate the Cable
Television Network Regulation Act and
Rules, and the Drugs and Magic
Remedies (Objectionable
Advertisements) Act.”
An interesting feature of the bill is
provision for a `10,000-50,000 fine to
deter frivolous complainants. To reduce
case burden on the consumer redress
commissions and quicken case disposal,
a consumer mediation cell will be set up
for each of these bodies.
“The bill has been conceived by the
government with an aim to better safe-
guard the rights of the consumer. It con-
tains several key reforms that will
strengthen the law and deter wrongdo-
ers,” says Bhola Singh, BJP parliamen-
tarian and a member of the standing
committee which looked at the bill’s
first draft.
LEGAL LOOPHOLE
But the legal loophole to be plugged in
case of sale of fake goods online is
Section 79 of the Information
Thebillbringsnewformsoftrade
underthepurviewofthelaw,
includingtelemarketing,anarea
wherefraudandmisleading
advertisementsarerampant.
“Consumercourtswerenotdoingagood
job.Wefelttheneedofaregulatorybody
whichwillpreventtheoffenceratherthan
afewadjudicatorybodiesdispensing
reliefaftertheconsumerhassuffered.”
—PushpaGirimaji,
consumerrightsactivistandcolumnist
“Nodoubt,thisisafuturistic-looking
bill...Butitwillnotbeeffectivein
preventingthiscategoryofonlinefraud...
TheITlawisaspeciallawandprevails
overallgeneralandpriorlaws.”
—PavanDuggal,
senioradvocateandcyberlawexpert

Technology Act, says advocate Pavan
Duggal, a cyber law specialist.
Whenever there is online fraud, e-retail-
ers have been quick to shrug off respon-
sibility by claiming to be intermediaries,
Duggal says.
Under Section 79 of the IT Act, the
word intermediary is defined as “any
person who on behalf of another person
stores or transmits that message or pro-
vides any service with respect to that
message and includes the telecom serv-
ice providers, internet service providers,
web-hosting service providers, search
engines, online-payment sites, online
auction sites, online marketplaces and
cyber cafes”.
Intermediaries are not liable for any
third party information, data, or com-
munication link made available by them
if their function is “limited to providing
access to a communication system over
which information made available by
third parties is transmitted or temporar-
ily stored or hosted; the intermediary
does not initiate the transmission, select
the receiver of the transmission, and
select or modify the information con-
tained in the transmission; and the
intermediary observes due diligence
while discharging his duties under this
Act and also observes such other guide-
lines as the central government may
prescribe in this behalf”.
The Supreme Court’s 2015 order
repealing Section 66A of the same Act
has also proved detrimental as it could
have been invoked to punish misleading
advertisers online, according to Duggal.
But no more, as the new consumer bill
has stringent measures to punish them
across all platforms.
Unfortunately, the proposed law does
not have any provision to counteract
Section 79. “No doubt, this is a futuristic
looking bill and a quantum leap forward
in terms of regulating commerce and
industry. But it will not be effective as
far as preventing this category of online
fraud. Section 100 of the new consumer
bill states that ‘the provisions of this Act
shall be in addition to and not in dero-
gation of the provisions of any other law
for the time being in force’. Section 101
empowers the central government to
make rules, a step which could be taken
to address this, but the rules cannot take
precedence over the IT Act. That’s
because the IT Act is a special law. It
prevails over the general and prior laws,”
Duggal says.
So, in effect, if a consumer is un-
aware of fraud, and does not request a
return within the time period specified
in the online seller’s trading policy, he
will have no recourse later. This is one
flaw in the new consumer bill.
CONTRADICTORY PROVISIONS
There are other flaws. The 2015 version
of the bill, which was withdrawn follow-
ing the standing committee report in
2016, was revised considerably and
Girimaji, who is also on the rule-making
committee for the bill, says several
unwanted clauses have been inserted.
For instance, one issue regarding the
bill would be its apparent lack of inde-
pendence. Section 99 of the bill states,
“Without prejudice to the foregoing pro-
visions of this Act, the Central Authority
shall in exercise of its functions under
this Act be bound by such directions on
questions of policy as the central gov-
ernment may give in writing to it from
time to time.”
Then, there are some contradictory
provisions, such as on the issue of mis-
leading ads. While prescribing heavy pe-
nalties for product endorsers who mis-
lead their audience, the bill gives the of-
fender scope to escape these in a subse-
quent provision by citing “due diligen-
ce”. There is no parameter specified for
the process of exercising “due diligence”.
The consumer dispute redressal com-
missions are also still being required to
decide whether or not to admit a case,
which leads to prolonging disputes.
“The drafting of the bill has not been
up to the mark. The bill has to be fine-
tuned to remove anomalies so that it can
be effective,” Girimaji says.
The new consumer bill is a mixed bag, choc-a-bloc with new clauses full of
good intentions, but with not a few legal loopholes
For the first time, it introduces a regulator as a supervisory body. It is the Central
Consumer Protection Authority.
Hefty penalties have been imposed for airing misleading ads.
E-commerce is now in the ambit of the law.
Celebrities who participate in misleading ads will be fined.
The manufacturer will be jailed for life if a product kills the customer.
Mediation has been introduced to reduce case load.
Sale of fake goods online has not been addressed.
There is scope for the centre to interfere with the functioning of the authority,
especially when it comes to conflict with a public sector undertaking or big biz.
The bill gives misleading advertisers chance to escape punishment.
The consumer dispute redressal commissions are still required to decide
whether or not to admit a case, leading to delay in resolution.
KeyReformsandFlaws
Ifaconsumerisunawareoffraud,
anddoesnotrequestareturn
withinthetimespecifiedinthe
onlineseller’stradingpolicy,he
mayhavenorecourselater.

30 January 22, 2018
MIR Liaquat Hussain is
one of Pakistan’s most
controversial TV hosts
who often uses his plat-
form to make inflam-
matory speeches against
various sections of soci-
ety. He once targeted Ahmadis, saying
that the murder of this minority com-
munity was a religious duty. After the
show, two Ahmadis were killed. A peti-
tion was then filed in the Islamabad
High Court which led to him being
banned from making any appearance on
media outlets.
That is in sharp contrast to India
where the role of the media in spreading
hate is growing but there have been no
curbs on the purveyors, many promi-
nent anchors and journalists. There are
numerous instances where the Fourth
Estate has spread lies, inciting hatred
and violence. Recently, after the violence
in Koregaon in Pune, a photo was circu-
lated, saying that Pakistani flags were
waved in the Dalit rallies there. Web-
sites such as Postcard News showed
these photos with inflammatory cap-
tions. However, the lie was exposed by
the website, AltNews, which clarified
that it was an Islamic flag and not the
Pakistani flag.
The Law Commission of India in its
March 2017 report explains hate speech
as “an incitement to hatred primarily
alarm, or incitement to violence”.
One case of falsehood perpetrated by
the English print media, considered a
credible medium, was the case of Najeeb
Ahmed, a missing JNU student. On
March 21, 2017, Raj Shekhar Jha of The
Times Of India reported that as per the
Delhi Police’s investigation, Ahmed had
been looking for information on the
Islamic State’s ideology, executions and
network. The report alleged that Ahmed
had searched for ways to join the IS on
Google and that the Delhi Police had
claimed that he had watched IS videos
Focus/ Hate Speeches
A
Media’s
BarbedMissiles
AftertheviolenceinKoregaoninPune,
aphotowascirculated,sayingthat
PakistaniflagswerewavedintheDalit
ralliesthere.AltNewsclarifiedthatitwas
anIslamicflagandnotthePakistaniflag.
TherehavebeennumerouscaseswheretheFourthEstatehasbeenguiltyofspreadingliesand
incitingcommunitiestohatred.Willaspecificlawhelpcurbthismenace?
By Lilly Paul
against a group of persons defined in
terms of race, ethnicity, gender, sexual
orientation, religious belief and the like.
Thus, hate speech is any word written or
spoken, signs, visible representations
within the hearing or sight of a person
with the intention to cause fear or
UNI

unfortunate and vicious”. Khalid was
called a Jaish-e-Mohammed sympathis-
er on prime-time TV debates after visu-
als of alleged anti-national slogans being
raised in the University were shown.
According to TV channels, Khalid had
been to Pakistan twice. “I didn't even
have a passport back then nor do I have
one now. They could not link Kanhaiya
and Anirban to Pakistan, so they chose
to link me only because of my Muslim
name,” said Khalid. “In the past two
years, the police have not been able to
frame charges against any of us who
were arrested after the February 2016
incident in the university. But I am seen
as an ‘anti-national’.”
A
ccording to the Pew Research
Centre’s index on religious hos-
tilities released in April 2017,
India ranked fourth behind Syria and
Nigeria. Even Pakistan was placed 10th.
In a country which is so religiously
diverse, India’s media, especially elec-
tronic, has often behaved irresponsibly
in spreading hate.
In June 2017, Times Now ran a two-
part “investigative” series on Kerala’s
Kasaragod district being a hub of IS
activity, with coaching centres radicalis-
ing Hindu youth. The editor-in-chief of
the channel, Rahul Shivshankar, said in
his prime-time programme that the
Caliphate wanted to recruit agents and
get them to “invade the Hindu faith by
carrying out conversions on young
Hindu girls”. In the exposé, the channel
revealed that conversion rate cards were
distributed in WhatsApp groups. It even
mentioned that the rate of a Hindu
Brahmin girl was `5 lakh and a Hindu
Kshatriya girl `4.5 lakh, whereas for
Hindu girls from SC, ST and OBC cate-
gories, the rate was `2 lakh. It is a moot
question how a WhatsApp forward
on YouTube the night before he disap-
peared. The report went on to say that
these details had been submitted in the
Delhi High Court. The story was also
carried by Times Now. However, the
Delhi Police categorically denied this
allegation and its spokesperson said that
no association of Najeeb with the IS had
come up during its investigation, nor
was there any such submission in the
high court. The paper did not apologise
for this fake news nor was the story
pulled from its website.
Regarding the fake news menace in
India, Washington Post wrote: “In India,
a nation with 355 million internet users,
false news stories have become a part of
everyday life, exacerbating weather cri-
ses, increasing violence between castes
and religions, and even affecting matters
of public health.”
Umar Khalid, a JNU student activist
who was charged with sedition along
with Kanhaiya Kumar and Anirban
Bhattacharya in 2016 on the basis of
doctored news videos, told India Legal
that “the role of the media in the JNU
witch-hunting was extremely disturbing,
VICTIMS OF PROPAGANDA
JNU students and family members of Najeeb
Ahmed hit the streets; (below left) Rohingyas
arrive in Bangladesh’s Cox’s Bazar; (on facing
page) Dalits protest in Mumbai against the
violence in Bhima Koregaon
youtube
UNI

can be considered credible. This “exclu-
sive” was later busted by AltNews.in,
which reported that the said WhatsApp
message had been doing the rounds for
quite some time. Khalid said: “These
media journalists are playing the role of
Joseph Goebbels in Hitler's administra-
tion. These news channels have peddled
unsubstantiated news reports that
Muslim men convert Hindu women.
Why do they think that Hindu women
cannot take a decision on their own
about whom to marry?”
In the case of Rohingya refugees, too,
Indian television hit a new low. After
the Indian government informed the
Supreme Court about its decision to
deport them, viewing them as a threat
to security, TV anchors followed suit.
While most of the world expressed sym-
pathy for these refugees, UN High
Commissioner for Human Rights Zeid
bin Ra'ad al-Hussein slammed India for
its indifference to their terrible suffer-
ing. Meanwhile, prime-time debates
questioned the loyalty of all those who
stood by these refugees. Arnab Goswami
of Republic TV proclaimed that India is
not the refugee capital of the world and
that the UN Security Council should
just shut up. He went on to say that the
Rohingyas should be “gently thrown
out” and they can be left “floating ar-
ound the Indian Ocean”. The TV cover-
age referred to the Rohingya refugees as
Rohingya Muslims, with slanted pro-
grammes on several channels such as
Zee News and India TV, to name a few.
Amish Devgan of News 18 India in his
show, Aar Ya Paar, even alleged that the
Rohingyas were killing Hindus in
Myanmar. His “exposé” was based on
the Myanmar army’s claim of having
found a mass grave containing the bod-
ies of Hindu women and children.
Instead of mentioning the militant
group behind the violence, the anchors
alleged that the Rohingyas had killed
Hindus in Myanmar. The reality was
that all the communities living in the
region, along with Buddhists and
Muslims, had been affected.
U
nfortunately, though the News
Broadcasting Standards
Authority (NBSA) has tried to
regulate the TV industry against hate
speech and misreporting, few take its
orders seriously. The NBSA was formed
by several media houses to self-regulate
the industry. It has been reduced to a
toothless entity.
In September 2017, the NBSA
ordered Zee News to issue an apology
for a report it aired between March 9
and March 12, 2016, wherein it called
poet and scientist Gauhar Raza a mem-
ber of the Afzal Premi gang. It showed a
poetry recital by Raza at Shankar-Shad
Mushaira, an annual poetry event, along
with the JNU protests of February 2016
and called the show Afzal Premi Gang
ka Mushaira. It branded Raza an anti-
national poet. The NBSA received two
complaints against this—one from Raza
and a joint one by actor Sharmila
Tagore, singer Shubha Mudgal, poet
Ashok Vajpeyi and lawyer Vrinda
Grover. The NBSA imposed a fine of `1
lakh on the broadcaster along with an
order to air a full-screen apology in
large typeface with a clearly audible
voice over in slow speed on September 8
at 9 pm. However, Zee News cocked a
snook at the NBSA and audaciously
went ahead with its regular programme,
Focus/ Hate Speeches
32 January 22, 2018
“Hatespeechesfor
cheappopularity”
N
owadays, a trend is developing
to deliver hate speeches just to
gain cheap popularity and
attract the attention of innocent per-
sons who are unaware of its planned
and well-managed sources. This may
be for political or monetary gain or
otherwise. Such persons attack others
on the basis of race, religion, origin,
sexual orientation, disability or gender.
Their main purpose is to disturb public
tranquility. Such speeches even intend
to insult religion or religious beliefs.
Although under Section 153 (A)
and Section 295(A) of the Indian Penal
Code such speeches are punishable,
prosecution as well as conviction are
rare. The Constitution of India under
Article 19(1) guarantees the
Fundamental Right of Freedom of
Speech and Expression and Article 19
(2) provides for reasonable restric-
tions. One must not only be aware of
one’s rights, but also owe
a duty towards the
nation and remember
fundamental duties
under the
Constitution. The
media also must not
give unnecessary
coverage to
such per-
sons.
Justice AN Mittal, chairman, UP
Law Commission, writes on hate
speeches for India Legal
WHAT’S IN A NAME
Umar Khalid, who was called a JeM
sympathiser on TV, says he was picked
on because of his Muslim name
UNI

India Legal 22 January 2018

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India Legal 22 January 2018