India Legal 25 September 2017

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Superstition:
Gods of Justice
Judiciary:
Reducing Pendency
September25, 2017
Themurderofa7-year-oldboyinaprominentschoolin
Gurugramshocksthenationandraisesseriousquestions
aboutsafetyandsecurityforschoolchildren.ASpecialReport
KILLER
CLASSROOMS

HE people of Kashmir embraced In-
dia and spurned Pakistan well before
India embraced Kashmir. How many
people recognise this fact as the
strongest building block on which to
re-establish the trust and camaraderie which
made Kashmir an irrevocable part of the Indian
union in 1947?
Very few. Largely because most of us are gui-
ded by emotion and political expediency. In tod-
ay’s climate of instant punditry, few of us want
to bother to educate ourselves to make informed
judgments. Prime Minister Modi, much to the
consternation of his critics, his support base,
and the Hindu hardliners, appears to have taken
an enlightened approach towards trying to calm
things down in Kashmir on the basis of histori-
cal realpolitik rather than jingoistic suitability.
His Independence Day statement was heard
with great attention in Jammu and Srinagar:
“The problems in Kashmir can’t be resolved
through gali (abuse) or goli (bullet), but only
by embracing Kashmiris.”
The formula for achieving this, his home
minister, Rajnath Singh later elucidated, would
be a “permanent solution based on five Cs—
compassion, communication, co-existence, con-
fidence-building and consistency”. He went
even farther. He actually debunked leaks
springing from his own government that
it would support a petition in the
Supreme Court seeking the abroga-
tion of Article 35A of the constitu-
tion. This 1954 provision amended
the constitution of India to provide
for special safeguards for the permanent
residents of the State of Jammu & Kashmir.
“The central government has nowhere
initiated anything with regard to this issue
(of Article 35A). We have not gone to court.
I want to say it clearly—I am not talking
only about Article 35A, whatever our gov-
ernment does, we will not do anything
against the sentiments and emotions of people
here. We will respect them,” Singh said.
This could well be another manifestation of
the hard-side-soft-side approach in dealing with
popular insurgencies, but it is still a move that
separates dealing with genuine terror with force,
from seeking to accommodate legitimate differ-
ences within a solution-oriented framework.
Lumping all Kashmiris into the hardline catego-
ry of jehadis and pro-Pakistani Islamist sepa-
ratists and crushing them ruthlessly into sub-
mitting to a historical narrative into which they
cannot buy, is precisely what strengthens
Pakistan and its surrogates. Delhi made the mis-
take once of turning the war against Sikh terror-
ists into a war against Sikhs in general and paid
a terrible price. Similarly, India’s war against
armed Kashmiri terrorists often transforms
itself into a war against all Kashmiris, leaving
them little room to edge back into the space of
mainstream politics to achieve their aims. And
Pakistan gains by default.
I
t need not be so. Because in this case, histo-
ry has been on the side of independent
India. Only, India has repeatedly failed to
take the historical bull by the horns. Modi’s “five
Cs” are a reiteration of that often-used but least
understood term “Kashmiriyat”. It does not
mean a break-away from the Indian union. It
means “dignity”. This dignity, PDP co-founder,
and former deputy chief minister Muzaffar
Hussain Baig tells me, most Kashmiris, deep
within their hearts, would like to have within
the Indian Union. But India, instead of accept-
ing their embraces, pushes them away into the
arms of others through denying them due pro-
cess, playing toppling games and rigging the
democratic process. And herein lies the irony
of this vexatious problem.
Down the ages, the original people of Kash-
mir have been the victims of foreign masters—
Afghan, Mughal, Sikh, Dogra rulers. The
ARTICLES OF FAITH
Inderjit Badhwar
Letter from the Editor
T
| INDIA LEGAL | September 25, 2017 3

crowning indignity was the sale of the who-le of
the region for `50 lakh, under the Treaty of
Amritsar in 1846, by the Paramount Power, Gr-
eat Britain, to Maharaja Gulab Singh because of
his loyalty to England. The next 100 years saw
Dogra rule, autocratic and repressive, over the
Kashmiri people, which they bitterly resented
and finally organised the Muslim Conference
(later National Conference) as a political organi-
sation to gain azaadi from monarchic abso-
lutism and establish democracy. Their tallest
leader was Sheikh Abdullah.
Mahatma Gandhi called the ceding of the
Kashmir region to Maharaja Gulab Singh a “sale
deed”. He made this observation in August 1947,
just two weeks before India became an inde-
pendent country. When much of India was bur-
ning and killing with pre-Partition communal
hatred, Kashmir, still an independent country
which had joined neither India nor Pakistan,
was calm. Gandhi, on his first Srinagar visit,
called Kashmir “a ray of hope”. The only friction
in Kashmir was then between the Kashmir free-
dom movement and the monarchy backed by
the British. The movement, called “Quit Kash-
mir”, was spearheaded by Abdullah’s National
Conference which had rejected the Muslim
League and Jinnah’s two-nation theory and was
pledged to Hindu-Muslim unity. The mass
agitation was directed at replacing the monar-
chy with a constitutional republic. And it had
made common cause with India’s indepen-
dence movement.
D
id you know? Stone-pelting by agitators
did not start with the Kashmiri youth
in this century. In 1944, when Jinnah
visited Kashmir to try and garner support for
the Muslim League, his supporters, protected by
the state police, were pelted with stones show-
ered on them in Baramulla by National Confe-
rence agitators who had also prepared a garland
of shoes to put around the neck of Jinnah. The
Muslim-led secular forces of Kashmir, the most
powerful mass-based group in the Valley, were
stone-pelting the future leader of Muslim-
majority Islamic state Pakistan!
By August 1947, India’s 561 independent
states had acceded to the Indian union. Maha-
raja Hari Singh had not yet made up his mind.
But he was tilting towards Pakistan or inde-
pendence. This was largely because the leaders
of the Indian independence movement had
backed Abdullah’s “Quit India” national move-
ment directed against the Maharaja and his
British backers.
SEARCHING FOR A
VIABLE SOLUTION
Prime Minister
Narendra Modi
meeting a delegation
of the All Jammu and
Kashmir Panchayat
Conference in Delhi
4 September 25, 2017
UNI

Pakistan’s military attempt to annex Kashmir
in October 1947 was foiled by the Indian Army
after the Maharaja, who had fled his country for
India, and Sheikh Abdullah, who had been rel-
eased from jail and appointed Martial Law
Administrator to organise the resistance against
Pakistani invaders, agreed to sign the Instru-
ment to accede to India. The Indian union wou-
ld henceforth be responsible for Kashmir’s def-
ence, communications and foreign policy.
Kashmir would retain its internal autonomy
and its people would decide their ultimate fate
through balloting under Indian and UN aus-
pices after all Pakistani troops and invaders
were withdrawn.
Said Abdullah, with sarcasm in his speech to
the UN in February 1948: “Today Pakistan has
become the champion of our liberty. I know
very well that in 1946, when I raised the cry of
‘Quit Kashmir,’ the leader of the Pakistan Gov-
ernment, who is the Governor-General now, Mr
Mohammad Ali Jinnah, opposed my Govern-
ment, declaring that this movement was a
movement of a few renegades and that Muslims
as such had nothing to do with the movement.
“Why was that so? It was because I and my
organisation never believed in the formula that
Muslims and Hindus form separate nations. We
do not believe in the two-nation theory, nor in
communal hatred or
communalism itself. We
believed that religion
had no place in politics.
Therefore, when we
launched our move-
ment of ‘Quit Kashmir’
it was not only Muslims
who suffered, but our
Hindu and Sikh com-
rades as well.”
Despite the UN reso-
lutions, Pakistan refused
to withdraw from the
occupied areas. No self-
determination exercise
could be held and the
relationship with
Kashmir, through a spe-
cial status provision
called Article 370, was
enshrined in the Indian
constitution. The provi-
sion was later accepted
by Kashmir’s Constituent Assembly which con-
verted the once princely state into a democratic
republic within the Indian union.
I
n his opening remarks to the Kashmir
Constituent Assembly, Abdullah reiterated
his state’s special relations with India: “You
are no doubt aware the scope of our present
constitutional ties with India, We are proud to
have our bonds with India, the goodwill of who-
se people and Government are available to us in
unstinted and abundant measure. The constitu-
tion of India has provided for a federal UUnion
and in the distribution of sovereign power has
treated us differently from other constituent
units. With the exception of the items grouped
under Defence, Foreign Affairs and Commu-
nication in the instrument of Accession, we have
complete freedom to frame our cconstitution in
the manner we like.
“In order to live and prosper as good part-
ners in a common endeavour for the advance-
ment of our peoples. I would advise that, while
safeguarding our autonomy to the fullest extent
so as to enable us to have the liberty to build our
country according to the best tradition and
genius of our people, we may also by suitable
constitutional arrangements with the union
establish our right to seek and compel Federal
NEEDED, A
COURSE
CORRECTION
We need to ponder
why we lost
Kashmir’s embrace
and the Kashmiri
youth resorted to
stone-pelting
UNI

co-operation and assistance in this great task as
well as offer our fullest co-operation and assis-
tance to the (Indian) union.”
Article 35A reinforced Article 370. It was a
confidence-building measure with the people of
Kashmir where a plebiscite was no longer an
option. As explained by the leading independent
website Jammu-Kashmir.com, the idea that the
residents of J&K needed to be protected was not
new but had been put into effect by the Dogra
Maharaja of Kashmir, who promulgated the
1927 Hereditary State Subject Order.
T
his distinguished between state and
non-state subjects, forbidding the latter
from owning land in the state.
This separation of powers and a large degree
of autonomy for the state was encoded in Article
370 of the Constitution of India and the subse-
quent Constitutional Order of 1950. The 1954
Presidential order (35A) superseded the 1950
Order and this was accepted by Bakshi Ghulam
Mohammad of the Jammu and Kashmir
National Conference who was the Prime
Minister of Jammu and Kashmir at that time.
On 17 November 1956, the state legislature
defined a Permanent Resident (PR) of the state
as a person who was a state subject on May 14,
1954, or who has been a resident of the state for
10 years, and has “lawfully acquired immovable
property in the state”.
Till recently several individuals and one
NGO have challenged its legal validity. Others
have called it discriminatory as thousands of
residents of J&K have been denied basic rights
such as owning property and sending their chil-
dren to state schools because of the provisions of
Article 35A.
India’s first Prime Minister Jawaharlal
Nehru has pointed out that the former
Maharaja of the state had stuck to this that
nobody from outside should acquire land there.
And that continues. “So the present Government
of Kashmir is very anxious to preserve that
right because they are afraid, and I think right-
ly afraid, that Kashmir would
be overrun by people whose sole qualification
might be the possession of too much money and
nothing else, who might buy up, and get the
delectable places,” he said.
That in short was the genesis of Article 35A;
it was a law meant to protect the people of the
state from a huge influx of outsiders. As a result,
the state’s constitution framed in 1956, retai-
ned the erstwhile Maharaja’s definition of per-
manent residents, that is: “All persons born or
settled within the state before 1911 or after hav-
ing lawfully acquired immovable property
resident in the state for not less than ten years
prior to that.”
Small wonder that the Modi government’s
recent pronouncement on Article 35A drew an
enthusiastic response from former chief minis-
ter Omar Abdullah, the grandson of Sheikh
Abdullah, the founder and tallest democratic
leader of Kashmir. Omar tweeted: “This is a
very important statement from the Union
Home Minister. His assurance will go a long
way towards silencing the noises against 35-A.”
Why we lost Kashmir’s embrace after such
an auspicious beginning sealed with blood and
struggle is another story. Searching once again
for that embrace and completely de-legitimising
the Pakistani claim is one of the greatest leader-
ship challenges of modern India.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
kashmirconnected.com
LikeJawaharlalNehru(right),NationalConferenceleader
SheikhAbdullahrejectedthetwo-nationtheoryand
espousedHindu-Muslimunity.

ContentsVOLUME. X ISSUE. 45
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Technical Executive Anubhav Tyagi
Is Your Child Safe at School?
There are plenty of guidelines to follow but a callous disregard for their enforcement has ren-
dered institutions vulnerable to crime. Will the Ryan case prove to be a turning point?
16
LEAD
Can’t Wait to Be Single
In a landmark verdict, the bench has ruled that a six-month cooling-off period before divorce
is not mandatory and it is up to judges to decide whether or not it can be waived
SUPREMECOURT
22
Incremental Gains
New data has shown that the subordinate judiciary in some states is making a concerted
effort to reduce the huge case backlog and that their efforts are proving to be successful
LEGALEYE
24

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Ringside .........................10
Delhi Durbar ...................11
Courts.............................12
National Briefs................14
International Briefs..........46
Media Watch ..................48
Satire ..............................50
Cover Design & Imaging:
ANTHONY LAWRENCE
Leading from the Front
On the urging of the Chief Justice of India, five high courts have
constituted special benches to reduce the logjam of cases
27
India Legal visits two shrines devoted
to deities and “judge uncles”—one in
southern Kerala and the other in north-
ern Uttarakhand—frequented by pil-
grims entangled in legal battles and
seeking a favourable outcome
SPOTLIGHT
42
Not a Neat
Outcome
That the National Eligibility and
Entrance Test has created such
turmoil in Tamil Nadu, so much that
the apex court was forced to take
note, is a sign of a policy imbalance
EDUCATION
36
“A Fundamental Right”
This view on fast trials from Allahabad High Court Chief Justice
Dilip B Bhosale was at the heart of a recent judicial officers’ meet
28
For Maximum Learning
The top court ruling that children up to 14 years old should not be expected to walk
long distances to school is a pertinent one. Can it have a countrywide application?
38
Saved by the Footage
Police picked up two men from a Delhi shop and lodged a false
case against them. Luckily, a CCTV camera nailed their lies
32
CRIME
Dera’s Terrible Secrets
A search of the 700-acre estate in Sirsa has revealed that illegal
abortions and uncertified cadaver donations took place here
34
PROBE
Passed Sans
an Appearance
Close on the heels of the
Vyapam scam, Madhya Pradesh
has been hit by another
controversy as candidates who
have not appeared for a National
Institute of Open Schooling exam
have been shown as passed
40
STATES
The Gods of
Justice

“
RINGSIDE
Akhilesh Yadav is a dynast, (MK) Stalin is a
dynast, Dhumal's son (Anurag Thakur) is a
dynast... even Abhishek Bachchan is a dynast. I
mean that's how India's runs... So don't get after
me as that's how the entire country is running.
—Congress leader Rahul Gandhi, speaking at “India at 70:
Reflections on the Path Forward” event at
the University of California in Berkeley
I am here just to tell you I
am retiring from the pro-
fession but I am taking on a
new role as long as I am
alive. I wish to combat the
corrupt politicians that
have been brought into the
position of power and I
hope the condition of India
will take good shape.
—Eminent lawyer Ram
Jethmalani, announcing his
retirement at a function
organised by the Bar Council
of India
River waters are like the
blood flowing through the
bodies of different people.
Each river comes from its
own genepool. Just as you
cannot just mix bloods, you
cannot just divert one river’s
water to another. The
ecosystems will retaliate.
We are not able to handle
the disputes in Sutlej, Indus
and Kaveri.
—India’s waterman Rajendra
Singh, on river disputes,
in The Wire
I left home with none of
the knowledge when I
was 15, but at the age of
30 I know a lot about
me. And there is a sense
of accomplishment, I am
a three-time National
Award winner, I have
shattered box office
records. Even if my
journey ends here right
now, I have nothing to
lose. I still have a huge
success story in every
which way for the rest of
my life.
—Actor Kangana Ranaut,
in India Times
Today’s product launches
are almost theatrical
performances. CEOs of
tomorrow’s companies
need to get Broadway
experience on their
resumes.
—Industrialist Anand
Mahindra, on Twitter
Sikkim is a small state
in the North-east of
India which never had
a film industry or any-
one who made films
from the region. This
is the first film ever
that’s come out of that
region, because it’s
very troubled with
insurgency and trou-
bling situations.
—Actor Priyanka
Chopra, in an interview
to ET Canada during the
promotion of her film
Pahuna in Toronto
Those people...harassing
some Muslims...should
remember, Buddha
definitely would have
helped those poor
Muslims.
—Dalai Lama, speaking
about the Rohingya
crisis in Myanmar to
mediapersons in Mumbai

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
WRONG FACTS
Now that the cabinet
reshuffle is done and
dusted, sources with
inside information
have sprouted all over
the BJP headquarters.
One gent, a familiar
and garrulous face on
TV debates, had this
gem to share with
journos: Nirmala
Sitharaman was not
the first choice for
defence minister. BJP
veterans Sushma
Swaraj, Rajnath Singh
and Nitin Gadkari
were actively consid-
ered. But they refused
since they felt that
they would have a lim-
ited role in the
defence ministry
which is overseen by
the prime minister and
the national security
advisor. The trio even
met Arun Jaitley—who
held additional charge
of defence before the
reshuffle—or feed-
back and decided
they would be better
off where they were.
That was when
Nirmala Sitharaman’s
name came up.
Incidentally, she has
moved to her new job
taking with her the
press officer from the
commerce ministry
she earlier handled.
“Look before you tweet”
could well be a maxim that
all politicians must follow.
Last week, BJP general sec-
retary Ram Madhav landed
himself in a controversy of
sorts when he tweeted his
shock on learning that
Nalanda University under
Amartya Sen’s vice-chancel-
lorship had introduced a
course “on politics of yoga
taught by a foreigner” which
had since been thankfully
abolished. While the tweet
sparked off a vicious debate
in social media, Madhav, an
RSS pracharak on deputa-
tion to the BJP, had got his
facts wrong and is the sub-
ject of some ridicule among
his detractors in the BJP
headquarters. For the
record, the yoga course,
taught by American scholar
Patricia Sauthoff was con-
ducted between January to
May 2017—well over a year
after Amartya Sen’s tenure
as vice-chancellor of the
University concluded.
Predictably, Madhav has no
comments to offer on his
faux pas—perhaps he was
too busy organising an inter-
action between RSS boss
Mohan Bhagwat, with a
large group of “foreigners”
as in diplomats from various
embassies in Delhi.
Rahul Gandhi’s tour of the US represents a
dramatic departure from his traditional rou-
tine. The tour, which kicked off in the Univer-
sity of California, Berkeley, includes similar
town hall Q & A sessions with young
Americans as well as meetings with corpo-
rate and IT gurus in San Francisco, Los
Angeles, Washington and New York.
The organisers are his father Rajiv’s close
aides, Sam Pitroda and Rajiv Desai, both
Chicago-based, while accompanying him is
Shashi Tharoor, Milind Deora and Congress
spokesman, Sanjay Jha. Collectively, they
have wide-ranging contacts in the US—
Tharoor was number two in the UN in New
York under Kofi Annan, Deora studied at
Boston and his father had used his US con-
tacts to organise a similar tour for Sonia
Gandhi, Pitroda is a highly regarded busi-
nessman in the US and Desai ran a public
relations company in Chicago before moving
to India, along with Pitroda, when Rajiv
became PM. Jha doubles up as executive
director of the Dale Carnegie training opera-
tions in India. Rahul’s tour involves some
public speeches where the audience will get
to ask him questions, as at Berkeley, where
he revealed that he was ready to take over
as Congress chief. The new thinking is that
Rahul’s international exposure will boost his
image in preparation for the 2019 polls.
INSIDER
INFORMATIONThere’s a new star rising in the BJP’s
fluid leader’s ladder where the only
constants are Narendra Modi and
Amit Shah. The new power-centre is
Amit Malviya, head of the party’s IT
cell, which controls the army of trolls
and oversees the tweets of senior
BJP leaders, including Modi. Malviya
is an aggressive operator and mount-
ed a spirited defence of Modi over the
controversial Twitter handles he fol-
lows. Malviya is a master of social
media, which makes him invaluable to
Modi and Shah. It is Malviya who is
incharge of organising Shah’s current
townhall events in crucial states and
making sure it gets the widest possi-
ble coverage on social media.
RISING STAR
RAHUL’S NEW TEAM

Observing that there was
no concrete evidence to
substantiate that the abys-
mally bad air quality in Delhi
last winter was only due to
the pollution caused by the
bursting of firecrackers, the
Supreme Court ruled that for
now the suspension of per-
manent licenses to sell
crackers was not applicable
in Delhi-NCR. The Court thus
altered its November 2016
ruling which had banned the
sale of firecrackers.
However, the two-judge
bench passed several
restrictions to control both
availability and sale of fire-
works. These include: a)
fireworks can’t be burst in
any area declared as a
“silent zone”; b) the Delhi
Police must bring down tem-
porary licenses by about 50
per cent of the number
issued in 2016 and not go
beyond 500; c) the states in
NCR should also cap the
temporary licenses at 50
percent of the 2016 number;
d) children of all the schools
in Delhi-NCR must be sensi-
tised to pollution and its
effects, and persuaded to
reduce or give up bursting
of firecrackers; e) The apex
court’s July 2017 order on
banning antimony, lithium,
mercury, arsenic and lead in
manufacturing firecrackers
stays; f) complete ban on
entry of firecrackers from
other states into Delhi-NCR
till further orders; and g)
those having permanent
licenses must use the exist-
ing stock.
The Court pulled up the
Delhi police and the Delhi
government for their apathy
in bringing down pollution
caused by firecrackers dur-
ing festivals. It formed a
high-level committee to
study the impact of breath-
ing polluted air generated by
the bursting of firecrackers
during festivals and submit a
report by the end of 2017.
Reacting to a report by a panel constituted
to study the ground situation vis-à-vis
building shelter homes for homeless in urban
areas, the Supreme Court felt an audit must
be done on funds given by the centre to the
states for the purpose. The panel appointed by
the Court had submitted in its report that the
state governments did not construct shelters
when the centre had given them enough funds
under the National Urban Livelihoods Mission
(NULM). Launched by the Ministry of Hous-
ing and Urban Poverty Alleviation in 2013,
NULM is tasked with the welfare of the
urban homeless.
The panel informed the Court that 90 per-
cent of the urban homeless did not have shel-
ter homes due to the states’ apathy.
The Court took serious cognizance of the
fact that more than `2,000 crore had been
allocated to the states in the last three years
but the progress was not satisfactory.
The Court asked the Comptroller and
Auditor General to find out how the money
had been used by the states. The centre was
asked to apprise the Court on the method to
be followed in building shelters.
Observers for
disputed site in
Ayodhya
Courts
Acting on a request by the
Allahabad High Court, a
three-judge bench of the
Supreme Court asked the
Chief Justice of the Allahabad
High Court Dilip Babasaheb
Bhosale to appoint additional
district and sessions judge or
special judge, as observers at
the Ram Janmabhoomi/Babri
Masjid site and relieve the cur-
rent observers. One of them,
SK Singh, is now a high court
judge, while the other person
TM Khan has retired.
The observers are suppo-
sed to ensure that the status
quo at the site is maintained
till the apex court adjudicates
on the title dispute. Hearings
are slated to begin from
December 5.
Although senior advocate
Rakesh Dwivedi, appearing
for the Allahabad High Court,
did provide the Court a list of
additional district judges and
special judges to choose
from, the Court left the deci-
sion to the chief justice of the
high court.
The Court ruled that its
direction and the concerned
list must be placed before the
chief justice for action within
10 days. The chief justice was
asked to select names from
the list given.
Ban on
firecrackers
lifted but
with
restrictions
Shelter homes in
urban areas

Aspecial SIT court in Ahmedabad hearing
the 2002 Naroda Gam case issued
summons to BJP president Amit Shah to
appear either in person or send a lawyer on
September 18 to depose in defence of former
Gujarat minister and BJP leader Maya
Kodnani. She has been held guilty in the case
in which several Muslims were killed.
Kodnani has claimed that she was not
present at the time of the killings and Shah
can testify to that.
The court issued the summons at Shah’s
Ahmedabad address after the former Gujarat
minister failed to present Shah in court after
seeking time.
AmitShahaskedtoappear
inSITcourt
The Supreme Court made some critical
observations regarding property held by
the Hindu Undivided Family in India. It said
that anyone claiming separate ownership of a
part of that property must provide conclusive
evidence of having acquired it on their own.
The Court’s conclusion came while it was
dealing with a plea from members of a joint
family. The members had pleaded that the
agricultural land of the family was actually
theirs as they had acquired it and others had
no claim over it. The Court ruled that no “best
evidence”, such as sale deed with their
names mentioned as buyers, papers showing
payment for purchase or any other document
was placed before it to prove that the said
land was not bequeathed to them from their
forefathers but was actually purchased. The
verdict of the Karnataka High Court rejecting
their claim was upheld by the apex court.
Fightoverjointfamily
property
— Compiled by Prabir Biswas
ADelhi Court turned
down the request of
the Delhi Police for
keeping Suite No 345
of the Leela Palace
Hotel in New Delhi
locked for some more
time. The luxurious
room has been sealed
since January 2014
after Sunanda
Pushkar’s body was
found in it. The Delhi
police’s argument that
the suite be locked till it
got all forensic results
was struck down by
the court. It directed
that the room be de-
sealed and instructed
the police to submit a
compliance report by
September 26. The
Court, however, gave
permission to the prob-
ing agencies as well as
the Forensic Science
Laboratory to “visit” the
suite and “collect mate-
rial/ article for investi-
gation” before
September 26.
The Court consid-
ered the huge financial
loss suffered by the
hotel as a result of
the suite remaining
closed for three-
and-a-half years.
The counsel for
the hotel con-
tended that
nothing can be
achieved by
simply keeping
the room
closed. He pleaded that
the room be de-sealed
and assured the court
that a separate room
would be set aside for
keeping any crucial
material found.
De-seal
Sunanda
Pushkar’s
room
While expressing
concern over
unnatural deaths of
prisoners in jails due to
inhuman conditions,
the apex court passed
several directions to both the centre
and states to improve basic facilities
in more than 1,000 prisons in India.
It asked high courts to take deaths
between 2012 and 2015 and award
suitable compensation to their family
members, if not done already.
The Court took special note of the
situation prevailing in Delhi’s Tihar
jail—especially the abject lack of
medical facilities. It observed that If
such was the scenario in that jail,
generally considered the top prison in
India, the conditions in other jails
would be scary and horrific.
Lashing out at states for not
implementing directions for the wel-
fare of prisoners issued by the
National Human Rights Commission,
the Court observed that as a result,
unnatural deaths took place in pris-
ons. As per NCRB, more than 500
jail inmates lost their lives unnaturally
between 2012 and 2015.
Compensate
for unnatural
deaths in
prisons

Briefs
The government is all set to
grant citizenship to nearly
one lakh Chakma and Hajong
refugees who came from East
Pakistan five decades back. The
Supreme Court, in its 2015 order,
had directed the centre to grant
them citizenship. Chakmas and
Hajongs resided in the Chitta-
gong hills of erstwhile East
Pakistan and had left their home-
land after its submersion by the
Kaptai dam project in the 1960s.
These refugees are now staying
in camps in Arunachal Pradesh.
Citizenship to
Chakmas, Hajongs
—Compiled by India Legal Team
JusticeSinghdrivesgurutoairport
Jawaharlal Nehru University has kept up its resist-
ance to saffron, as the united-Left alliance swept
all four of the central panel seats in the recently con-
cluded student union elections. And making a come-
back after the 2012 elections, NSUI, the students’
wing of Congress, won the President and VP posts in
the Delhi University Students’ Union elections, with
ABVP getting the other two seats. In JNU, ABVP, the
student wing of RSS, ended up second whereas the
Birsa Phule Ambedkar Students’ Association
(BAPSA), formed three years back, stood third.
JNU votes red, NSUI wins DU
In a blow to the Sharad Yadav camp, the
Election Commission has refused to take
cognizance of its claim over the party’s
name and symbol of Janata Dal (United).
The Commission refused the plea citing
lack of supporting documents from party
legislators and office-bearers. The Sharad
faction had approached the EC on August
25 after Nitish Kumar broke the grand
alliance in Bihar and switched his support
to the BJP. Adding to the rebel faction’s dif-
ficulties, Rajya Sabha Chairman Venkaiah
Naidu has sent notices to Sharad Yadav and
Ali Anwar, seeking their response over a
petition filed by the Nitish Kumar-led JD
(U). It seeks their disqualification from the
House for anti-party activities under the
Tenth Schedule of the Constitution.
Spiritual guru Sri Sri
Ravi Shankar, who was
in Guwahati for the North
East Indigenous People’s
conference on September 5,
was driven to the airport by
none other than the Chief
Justice of Gauhati High
Court, Ajit Singh. It has
sparked outrage among the
members of the Bar Asso-
ciation who claimed that
the Chief Justice violated
High Court rules. In fact,
members of the Gauhati
High Court Bar Associa-
tion have decided to dis-
cuss the issue at the
upcoming general meeting
of the association. Accor-
ding to reports, they may
also approach the Chief
Justice of India to com-
plain against Justice Singh.
JD(U) party symbol: EC rejects Sharad camp’s plea
Historian Ramachandra Guha
has been served a legal notice
by the BJP Yuva Morcha—BJP’s
Karnataka youth wing—for link-
ing the Sangh parivar with
the murder of journalist
Gauri Lankesh. Guha
made the comment in a newspaper
column and an interview to a
news website. In the five-page legal
notice, the Yuva Morcha has dem-
anded an unconditional apology.
Guha had written that it was likely
that Lankesh’s murderers came
from the same Sangh Parivar from
which the murderers of Dabholkar,
Pansare and Kalburgi came.
Guha gets legal notice
over Lankesh remark
From October 1, the students
of government schools in
Satna would say Jai Hind while
answering to their roll calls. The
move is intended to inculcate
patriotism among students. Vijay
Shah, Madhya Pradesh’s school
education minister, announced
the new practice on an experi-
mental basis. But this will be
expanded to other districts later.
Private schools have also been
advised to follow.
Patriotic roll call

against a legal challenge to President’s
Rule after the Babri Masjid demolition.
He successfully argued that a violation
of secular ideals of the constitution was
a reasonable qualification to dismiss a
governmental machinery.
A
s far as his contribution to Indi-
an law is concerned, he argued
against capitation fees by educa-
tional institutions in JP Unnikrishnan's
case (1993); for the privileges of parlia-
mentarians in PV Narasimha Rao’s case
(1998); for the governor's prerogative to
appoint a chief minister who is not a
member of any of the houses of parlia-
ment but who enjoyed majority in BR
Kapoor's case (2001); he appeared for
People's Union for Civil Liberties
(PUCL) in the case of Lok Satta (2003)
where he argued successfully that every
potential voter has the right to know his
prospecting candidate before casting a
vote and for a State's power to regulate
admissions to professional courses for
preventing exploitation of students by
private institutions in TMA Pai Found-
ation (2002), Islamic Academy (2003)
and PA Inamdar (2005).
Appearing on behalf of the National
Human Rights Commission (NHRC), he
persuaded the Supreme Court to inter-
vene directly in the Best Bakery case
(2002) in which a fast-track court had
acquitted all the accused.
Then President Pranab Mukherjee
had given his nod for the nomination
of PP Rao as the jurist member of
the selection committee of Lokpal, a
machinery for bring transparency,
accountability and eventually, a corrup-
tion-free India.
The legal fraternity has mourned the
passing away of this intellectual who
lived by his principles and convictions
till the very end.
The writer is an advocate in the
Supreme Court of India
Thiseminentlawyerappearedformanyimportantcasesand
leftamarkwithhisoutspokennessandcharmingnature
By Neelesh Singh Rao
Obit/ Pavani Parameswara Rao
P RAO (July 1, 1933 – Sept-
ember 13, 2017) who passed
away recently following a
short illness at the age of 84,
was an eminent constitution-
al expert and pedagogue of jurispruden-
tial science.
Born on July 1, 1933, Rao studied at
Hyderabad’s Osmania University. He
started his career in 1961 teaching law
in the University of Delhi. He was enr-
olled as an advocate by the Bar Council
of Delhi in 1967 and thereafter started
practice in the Supreme Court. During
this time, he assisted leading lawyers of
the time such as HM Seervai, MC Seta-
lvad, CK Daphtary, NC Chatterjee, SV
Gupte, AK Sen, Niren De, etc.
In February 1969, he cleared the A-
o-R examination and became an
Advocate-on-Record. He was Advocate-
on-Record for the State of Andhra
Pradesh and a junior standing counsel
for the central government before he
was designated as senior advocate by the
Supreme Court in August 1976.
Due to his outspoken capabilities,
persuasive nature and charming person-
ality, he was elected president of the
Supreme Court Bar Association in 1991.
In 2006, he was conferred the Padma
Bhushan, the third-highest civilian
award of India.
He helped develop the argument
Raotookupcasesdefending
thedemocraticrightsofthe
publicandconstantlyworked
towardssecuringandupholding
constitutionalvalues.
A Veteran of
Constitutional Law
P

Lead/ Students’ Safety
VERY morning, millions of
children set off for schools
across the country to fulfill
their parents’ dream: To get
a quality education. For two
sets of parents last week,
that dream turned into a nightmare.
The back-to-back incidents of sexual
violence in two of the National Capital
Region’s premier schools, one of them
involving the gruesome killing of a
seven-year-old boy, woke the nation and
the government to a frightening reality:
sexual predators and killers are allowed
easy access to facilities used by the
schoolchildren. While the official
machinery creaks into life and fresh
guidelines are handed out in panic reac-
tion, it is the parents who are finding it
hardest to contend with the new reality
facing them following the sodomy bid
and murder of the young boy in Ryan
International School in Gurugram (see
box) and the rape of a five-year-old girl
in Tagore Public School, Shahdara, just
E
Thereareanynumberofguidelinesandrulesbutacallousdisregardfor
theirimplementationhaslefteducationalinstitutionsvulnerablein
thefaceofasteadyriseincrimestargetingschoolchildren.
WilltheRyankillingproveaturningpoint?
By Sucheta Dasgupta
Can Tougher New
Laws Make Our
Schools Safer?
WHAT WENT WRONG?
Parents and children take out a candlelight
march in Delhi in search of safety and answers

all such schools, management, Director,
Promoters and Principals for neglecting
and ignoring the concern of security and
safety of the children… holding the
management criminally and vicariously
liable and responsible for all any and
every act detrimental to the safety and
security of the child…”
T
he petition also listed the rise in
child sexual abuse. A sampling of
three years data of the National
Crime Records Bureau shows 89,423
crimes against children reported in 2014
in sharp contrast to 26,694 such crimes
in 2010. That number increased to
94,172 in 2015 and 1,05,785 in 2016.
This indicates a four-fold rise in crimes
under this category in the last seven
years. Also, between 2014 and 2016, the
number of crimes registered under the
Protection of Children from Sexual
Offences Act went up from 8,904 to
35,980—another four-fold increase, this
time in just two years. One other
24 hours later. The reality is stark and
scary: there has been an unprecedented
increase in child sexual abuse in recent
years and schools have become the new
preying ground. In July, a four-year-old
girl in Outer Delhi was raped by her
school van driver while a three-year-old
was groped by another bus driver in
Bengaluru the same month. In Chennai,
a 13-year-old was accidentally crushed
by her own school van driver while her
sister sustained injuries.
The brutality of the Ryan
International case and the identity of
the alleged killer—a bus conductor who
was allowed to use the same washroom
as the murdered boy—is what has gal-
vanised parents, teachers, educationists
and the government, to take serious
note of the criminal lack of security in
schools. While union ministers Maneka
Gandhi and Prakash Javadekar have
called an urgent meeting with officials
to develop a child safety protocol for
schools to follow, the Delhi government
has ordered installation of CCTVs and
police checks for all non-teaching staff
in three weeks time. It may be a case of
shutting the stable door after the horse
has bolted but the fact that the father of
the murdered boy, Varun Thakur, has
taken the matter to the Supreme Court
is indicative of belated realisation of the
importance of child safety and security.
The petition filed by Thakur also
seeks a CBI probe into the murder. The
fact that the matter is being heard by a
bench headed by Chief Justice of India
Dipak Misra suggests that the judiciary
is alarmed at the lack of security in
schools. The petition—a reflection of the
panic and anger among parents—asks
the courts to “issue a writ in the nature
of mandamus directing to various con-
cerned authorities and agencies not only
to ensure absolute safety and security of
each and every child studying in the
schools all across the country but also
direct the authorities and agencies to
immediately crack [sic] action against
CENTRE OF THE STORM:
Ryan International
School in Bhondsi, Gurugram

horrifying statistic, the only study on
child sexual abuse conducted by the
ministry of women and child develop-
ment has found 68.99 percent of those
surveyed to be victims. It was completed
in 2007 and, significantly, 53 percent of
the victims were boys. In fact, there is
no comprehensive data on the safety of
schools in a particular state or district.
Delhi’s child welfare committees report
cases that come to them from the Delhi
Commission for Protection of Child
Rights (established under the epony-
mous 2005 Act) and the High Court-
appointed Juvenile Justice Committee.
These bodies and the National
Rights only maintain records of com-
plaints that reach their doors. Many go
unreported because parents do not want
to publicise the fact that their child is a
victim of sexual abuse. As one member
of the child welfare committee in East
Delhi’s Dilshad Garden told the media:
“The multi-level body set up under the
Juvenile Justice Act receives two-three
cases of sexual assaults against children
within the school premises every month
but in most cases, the police say the
child has withdrawn it.”
T
he Juvenile Justice (Care and
Protection of Children) Act,
2000 (repealed and replaced in
2015) made it mandatory for a child
welfare committee to be set up in each
district, with the powers of a first-class
judicial magistrate. The committees are
tasked with looking into the care, pro-
tection, development and rehabilitation
of children. It does not seem to have
made much difference. The Delhi
Rights (DCPCR) four years ago had sug-
gested a set of comprehensive guidelines
for prevention of child abuse in schools
and other educational institutions.
However, their half-hearted implemen-
tation by the Delhi government has ren-
dered them toothless. The lack of imple-
mentation is visible in the lack of knowl-
edge among schools of what is expected
of them as per the guidelines. For
instance, a child protection policy
prominently displayed on the school
premises is a must for every institution.
Of four leading schools located less than
a kilometre’s distance of one another in
the posh GK-II area of south Delhi, only
one, Don Bosco School, could assure
India Legal of having such a policy. The
others—Kalka Public School, St George’s
VICTIMS OF
NEGLIGENCE:
(Left) Father of the
Ryan school victim,
Varun Thakur;
(below left) 7-year-old
Pradhyumn whose life
was cut short; (below)
Jyoti, the mother
School bus conductor Ashok Kumar
allegedly slashed 7-year-old Pradhyumn
Thakur in the neck when he raised an
alarm after he attempted to sodomise
him in the school toilet on September 8
Pradhyumn could not scream as his
windpipe was severed. CCTV cameras
caught him crawling into the school corri-
dor. Police say school authorities later
tried to delete the footage
The post mortem report says
Pradhyumn died within two minutes of
the attack. School authorities, however,
got him transferred to three hospitals.
The doctor at the third hospital declared
him dead on arrival
Ashok Kumar allegedly confessed with-
in minutes of questioning by the police
the same day. His colleague, school bus
driver Saurabh Raghav, has, however,
claimed that he is a scapegoat
The SIT team has detained gardener
Harpal Singh for questioning. It has
already questioned 17 persons
Francis Thomas, legal head and Jeyus
Thomas, HR head of the Ryan
International School group, have been
TheRyanMurder:
Anatomyofan
Investigation

School and New Green Field School—
were found to be unaware of either the
existence of the policy or its contents.
All these schools are located in a prima-
rily residential neighbourhood, assuring
a degree of automatic community vigi-
lance. What of schools located in remote
areas, like the high-profile Amity
International School adjacent to the
Greater Noida Expressway? Even Ryan
International, a school which is part of a
sprawling educational empire run by the
Pinto family, with 185 schools, including
branches in the US, UAE, Thailand and
Maldives, seemed to consider safety and
security a low priority area. The school
is located next to a village and had a
breach in the boundary wall, a broken
toilet window, outsider access to the
school washrooms and mostly non-func-
tional CCTV cameras.
Lack of priority is one aspect, non-
implementation of guidelines and lack
of any audit mechanism is equally
shameful. There is, in fact, no dearth of
safety guidelines. As NCPCR chairper-
son Stuti Kacker points out, there are a
total of 24 sets of guidelines on child
safety, issued by various bodies such as
the ministry of human resource devel-
opment, the CBSE, the department of
drinking water and sanitation, the min-
istry of road transport, even one on safe-
ty in the event of terrorist attacks from
the home ministry (see box). However,
as education is on the concurrent list, all
implementation lies in the hands of
respective state governments. “The
recent incident in Ryan School is very
tragic and urgent. NCPCR took suo
motu cognisance of the incident,” said
Kacker. In Delhi, the Directorate of
Education (DoE) is the agency in charge
of monitoring school safety. “We issue
our own circulars containing guidelines
on specific topics, such as fire safety or
transport, from time to time. Inspec-
tions are also done fairly regularly,
mostly once a year,” Vikas Kalra, a sen-
ior official in charge of school education,
said. But the checks obviously have not
been enough.
So who is responsible? According to
the Department of Education, principals
and school boards are liable in case of
incidents resulting in harm to children.
It is their job to ensure that every school
has a well-defined child protection poli-
cy which includes the following:
No candidate with a criminal record
is recruited for any position within the
institution
Counseling service is made available
to every child in need
A management committee is present
to look into every case of child abuse
Students are put through training
modules on gender and sexuality
At least one female guard is present
on the school bus which waits until the
child’s guardian arrives to pick them up
Washrooms are separate for boys and
girls as well as for staff and students
There are no dead-end hallways and
staircases
CCTV cameras are installed and
maintained at appropriate places
No unregistered visitor enters the
premises
Teachers and staff are required to fol-
low a behavior protocol while interact-
ing with students
Buses must be painted yellow, have
the words, school bus, prominently writ-
ten in front of them, install horizontal
grills on the windows, be equipped with
a global positioning system and speed
governors set at 40 kmph, and be driven
by operators who have all their papers in
place plus a public service vehicle badge
issued by the state transport depart-
ment. They should have had five years
experience driving a regular bus and
passed 12th grade (10th for Delhi
Transport Corporation drivers). A con-
ductor, too, needs to have passed the
10th standard exam. Anyone who has
been ticketed even once for speeding,
drunk or dangerous driving may not be
recruited for these jobs. Vehicles in a
state of disrepair should be kept away
from school campuses.
Most of these guidelines are
arrested for tampering with evidence.
The school has been closed indefinitely
Ryan management has moved the
Supreme Court, seeking transfer of case
to a Delhi court for “fair probe”. The
court has issued notices to the centre
and the Haryana government
Father Varun Thakur has petitioned for
a CBI probe into his son's murder and
safety guidelines for children in schools
The Bombay High Court declined
anticipatory bail to the Ryan International
Group's founding chairman Augustine
Pinto (73) and his wife, managing direc-
tor Grace Pinto (62) and son Ryan Pinto,
the CEO of the group, but extended
interim relief from arrest to trustees
The Supreme Court has also agreed to
hear a plea of two women lawyers seek-
ing framing of “non-negotiable” child
safety conditions and implementation of
existing guidelines
“TherecentincidentinRyanSchool
isverytragic.NCPCRtooksuomotu
cognisanceofthematter.”
—NCPCRchairpersonStutiKacker
“Thereisnosynergybetweenvarious
actsandlittleawarenessregardinglaws
relatedtoprotectionofchildrights.”
—ChildRightsandYouofficialSohaMoitra

ignored or implemented half-heartedly.
One obvious drawback is that many par-
ents hire private vehicles to ferry kids to
school. Fiona Manuel is a mother of
two—a third-grader and a kindergarten
student at Delhi’s Don Bosco school. She
is wary of using school vans. “Don Bosco
has plenty of school buses. But parents
usually go for private vans because they
want the child to be dropped at their
doorstep. With buses, one has to be
present at the drop-off point to collect
the child, which is not always possible,”
says Manuel. In any event, most schools
do not have an adequate number of
school buses, forcing parents to depend
on private vehicles even though their
drivers have unverified antecedents and
complaints of sexual offences on their
charges has been on the rise. Last week,
the Delhi government issued instruc-
tions to make schools liable for vans.
They will be made responsible for moni-
toring if vans ferrying their students are
following norms. The School Cab Policy
2007 which said the carrying capacity of
the vans should be one-and-a-half times
the seating space would no longer be
applicable. Students would not be
allowed to sit on CNG cylinders convert-
ed into seating space, as happens with
in many cases. Drivers are required to
display the public service badge on their
new grey uniforms and undergo police
verification. For this, they would have to
register their vehicles with the transport
department. Installation of speed gover-
nors and adhering to a limit of 40 kmph
would now be a must.
T
here is another key issue to do
with growing privatisation and
commercialisation of education
which has also been cited in the petition
filed by the father of the Ryan victim in
the Bombay High Court opposing the
anticipatory bail petition of the CEO,
Ryan Pinto, and his parents, Grace and
Augustine Pinto. Many hold this to be
the main cause for the growing atmos-
phere of insecurity in schools and a cor-
responding rise in crime. For instance,
in earlier days, non-teaching staff were
permanent and employees of the school.
Not anymore, with most of that work
being outsourced. This is due to the
mushrooming “global” and “internation-
al” label that schools freely flaunt and
rapid expansion of branches once a
school is established.
In the absence of collated data and
with low reporting of such incidents,
there is little understanding of how inse-
cure children can be even on school
premises. The National Commission for
Protection of Child Rights is conducting
Guidelines on Safety and Security of
Children, 2014: MHRD
Guidelines on Food Safety and Hygiene
for School level Kitchens under Mid Day
Meal Scheme, 2015: MHRD
Guidelines on Safety of School Buses:
Ministry of Road Transport & Highways
Standard Operating Procedure for
Dealing with any Terrorist Attack on
Schools: MHA
Instructions on Bullying Prevention and
Ragging in Schools: MHRD
Standards of Safety and Precautionary
Methods: CISCE
Activity Book on Disaster Management
for School Students: National Institute for
Disaster Management
Operational Guidelines, Child Health
Screening and Early Intervention Services
under National Rural Health Mission:
Ministry of Health & Family Welfare
CBSE Circular on Modification of its
Affiliation By-Laws to include Transport
Precautions
Guidelines issued by Navodaya
Vidyalaya Scheme on Prevention of Sexual
abuse
SSA Framework for Implementation 2009
(Chapter 6) on School Infrastructure and
Development
A Handbook for Administrators,
Education Officers, Emergency Officials,
School Principals/Teachers: MHA
Guidelines for Swachh Bharat Mission:
Ministry of Drinking Water and Sanitation
Guidelines for Menstrual Hygiene of
Girls: Ministry of Drinking Water and
Sanitation
TooManyGuidelines?
Here is a list of various guidelines issued on the subject of safety of
children by various government bodies
PERILOUS RIDE: School kids cramped
inside an auto—a far cry from safety
UNI

its first survey on safety and security of
schools. The audit involves 70,000 pub-
lic and private schools across the coun-
try. The surveys are being conducted by
students and teachers and cover infra-
structure, prevention of sexual abuse
and social discrimination. What makes
it difficult to keep tabs on whether a
school is complying with safety norms is
that different state departments are
responsible for enforcing different Acts
and guidelines. For instance, the educa-
tion department can take action against
a school under the school recognition
norms, but the Juvenile Justice and
Protection of Children from Sexual
Offences (POCSO) Acts are for the
Department of Women and Child
Development to enforce. The education
department most often merely checks if
the school has all the necessary certifi-
cates (regarding fire safety, building reg-
ulations and the like) issued by other
government agencies, but cannot verify
all of these through independent inspec-
tions. These are mainly meant for gov-
ernment schools and there is even less
scrutiny in private schools.
There is also no synergy between the
Acts and little awareness, as most of the
laws dealing with child rights are com-
paratively recent. Soha Moitra, regional
director of NGO Child Rights and You,
says cases that come under the POCSO
Act continue to be registered under IPC
in many places just because of this rea-
son. “The pace of change in terms of
framing of laws has been slow, but the
society around us is changing very rap-
idly. With the decline of the joint family,
there is no safeguard for the child. We
really need to act urgently and simulta-
neously,” she said. She also recommends
strengthening of the Integrated Child
Protection Scheme.
The Right to Education (RTE) Act
prescribes recognition norms for
schools. However, by way of safety, the
only conditions schools are required to
follow is “arrangements for securing the
school building by boundary wall or
fencing” and providing separate toilets
for girls and boys. It is another matter
that there are likely to be a large num-
ber of schools which don't meet even
these basic standards. The RTE Rules in
each state may include further condi-
tions, but most states don’t have specific
measures relating to child safety. For
instance, the Haryana RTE Rules which
are applicable to Ryan International,
enable the state government to require
schools to furnish compliance reports,
but does not elaborate on the nature of
compliance. States have their own edu-
cation Acts which impose additional
conditions on schools, but these are like-
ly to be in the nature of furnishing
building and fire safety certificates at
the time of applying for recognition. The
trouble with all these policies is that
there is no legal obligation for schools
to abide by them. It is little wonder that
when seven-year-old Pradhyumn walked
into the school washroom, he probably
gave little attention to the bus conductor
waiting inside with sex on his twisted
mind and a knife in his hand.
Food Safety and Standards Authority of
India Guidelines on Banning High Fat,
Sugar and Salt in Schools
CBSE Guidelines for Banning Junk Food
in Schools
Guidelines for Safety of Children in
Schools: Department of Education,
Government of Haryana
Safety Guidelines for Protection of
Children in Sports by NCPCR with National
Institute of Mental Health And Neuro-
Sciences and Sports Authority of India
Safe School Vahan Scheme:
Government of Punjab
Guidelines Issued by Department of
School Education, Punjab, to Ensure
Safety and Security of Children in Schools,
2016
NCPCR Regulatory Guidelines for Private
Play Schools for Children in the Age
Group of 3-6 Years
Draft Regulatory Guidelines for Hostels
of Residential Educational Institution for
Children in the Age Group of 7-18 Years.
NCPCR Recommendations for Inclusion
of Safety and Security of Children in
Schools Submitted to MHRD on New
Education Policy
Draft Guidelines Being Prepared by
NCPCR for Regulating Hostels of
Educational Institutions for Children below
18 Years
Source: NCPCR
IN POLICE CUSTODY: School bus
conductor Ashok Kumar after his arrest
khaskhabar.com

HE Supreme Court has final-
ly settled the long-debated
issue of whether a six-month
waiting period is required
before divorce is granted
when there is mutual con-
sent. This cooling off period is mandat-
ed under Section 13B of the Hindu
Marriage Act, 1955. But last week. a
bench of Adarsh K Goel and Uday U
Lalit pronounced the verdict that a cou-
ple can get divorce by mutual consent
without the mandatory six months sepa-
ration period. The bench conferred the
power to family courts to waive the
waiting period, with a few conditions.
Section 13B(1)of the Hindu Marriage
T
Theapexcourthasruledthatthesix-monthwaitingperiod
beforedivorceisgrantedisnotmandatory.Itisleftto
individualjudgestodecidewhetheritcanbewaived
By Vinay Vats
The said period was laid down to enable
the parties to rethink so that the court
grants divorce only if there is no chance
for reconciliation.
T
he facts of the case which came
up before the Supreme Court for
adjudication was this: The couple
seeking divorce had married on January
16, 1994 and two children were born to
them in 1995 and 2003. Since 2008, the
couple was living separately. They filed
civil and criminal cases against each
other. On April 28, 2017, a settlement
was arrived at to resolve all disputes and
divorce by mutual consent sought.
By virtue of the settlement, the wife
got a permanent alimony of `2.75 crore
and the husband the custody of the chil-
dren. The couple filed a special leave
petition in the apex court for waiver of
the period of six months on the ground
that they have been living separately for
over eight years and there was no possi-
bility of their reunion. Any delay, they
pleaded, will affect the chances of their
resettlement.
The Supreme Court went back to
other rulings where waiver of the cool-
ing-off period was considered. In
Anjana Kishore versus Puneet Kishore
(2002), the apex court dealt with a
transfer petition after a settlement had
been reached between the couple who
had filed for waiver. The court waived
Supreme Court/ Hindu Marriage Act
Speedy
Separation
Act contemplates that for filing a
divorce by mutual consent, the parties
must have been separated for at least a
period of a year before filing the peti-
tion. Further, Section 13B(2) contem-
plates that the parties have to wait for a
minimum of six months after filing the
divorce petition which is also known as
the cooling off period. The Act enab-led
the court to dissolve a marriage on
statutory grounds.
By way of amendment in 1976, the
concept of divorce by mutual consent
was introduced. However, Section
13B(2) contains a bar to divorce being
granted before six months of time elaps-
ing after filing of the divorce petition.
“13-B. Divorce by mutual consent.
(1) Subject to the provisions of this Act
a petition for dissolution of marriage by
a decree of divorce may be presented
to the district court by both the parties
to a marriage together, whether such-
marriage was solemnised before or
after the commencement of the Marr-
iage Laws (Amendment) Act,1976, on
the ground that they have been living
separately for a period of one year or
more, that they have not been able to
DivorceDefined
Section 13B of the Hindu Marriage
Act, 1955 is as follows:
Anthony Lawrence

court to exercise its discretion in the
facts and circumstances of each case
where there is no possibility of parties
resuming cohabitation and there are
chances of alternative rehabilitation.
Thus the division bench observed
that where the court dealing with a mat-
ter is satisfied that a case is made out to
waive the statutory period under Section
13B(2), it can do so after considering the
following :
i) the statutory period of six months
specified in Section 13B(2), in addition
to the statutory period of one year under
Section 13B(1) of separation of parties is
already over before the first motion
itself;
ii) all efforts for mediation/conciliation
including efforts in terms of Order
XXXIIA Rule 3 CPC/Section 23(2) of
the Act/Section 9 of the Family Courts
Act to reunite the parties have failed
and there is no likelihood of success in
that direction by any further efforts;
iii) the parties have genuinely settled
their differences including alimony, cus-
tody of child or any other pending issues
between the parties;
iv) the waiting period will only prolong
their agony.
The parties, the bench rules, can file
the waiver application after one week of
filing the first motion. Parties are also
required to give reasons for the waiver.
If the conditions mentioned earlier are
satisfied, the waiver of the waiting peri-
od for the second motion will be in the
discretion of the concerned court.
Last but not the least, the bench
directed that such proceedings can be
conducted through video conferencing
where the parties are unable to be pres-
ent in person for any just and valid rea-
sons. This ruling does make divorce
proceedings a lot more easier and
less messy.
—The author is advocate,
Supreme Court of India
the six months period under Article142
in the light of the facts and circum-
stances of the case.
However, in Manish Goel versus
Rohini Goel (2010), a division bench of
the Supreme Court held that jurisdic-
tion of the court under Article 142 could
not be used to waive the statutory peri-
od of six months as doing so will be
passing an order in contravention of a
statutory provision.
In Poonam versus Sumit Tanwar
(2010), a division bench of the Supreme
Court observed that the power under
Article 142 could be exercised in cases
where the Court found the marriage to
be totally unworkable, emotionally dead,
beyond salvage and broken down irre-
trievably. This power was also exercised
to put quiet all litigations and to save
the parties from further agony.
In Neeti Malviya versus Rakesh
Malviya (2010), the Supreme Court
observed that there was conflict of deci-
sions in Manish Goel and Anjana
Kishore versus Puneet Kishore. The
matter was referred to a three-judge
bench. The matter became infructuous
on account of the divorce being granted
after the stipulated separation time.
W
hile deciding the case of
Nikhil Kumar versus Rupali
Kumar (2016), the Supreme
Court waived the statutory period of six
months under Article 142 of the Consti-
tution and the marriage was dissolved.
KV Vishwanathan, senior advocate
and amicus in the present matter, drew
the attention of the court to the views of
different high courts on the issue. The
Andhra Pradesh High Court in K
Omprakash versus K Nalini (1986),
Karnataka High Court in Roopa Reddy
versus Prabhakar Reddy (1994), Delhi
High Court in Dhanjit Vadra versus Smt
Beena Vadra (1990) and Madhya
Pradesh High Court in Dinesh Kumar
Shukla versus Smt Neeta (2005) had
observed that under Section 13(B)2 of
the Act is a directory and can be waived
by the court where proceedings are
pending, in exceptional situations.
However,the Kerala High Court gave a
contrary view in M Krishna Preetha ver-
sus Dr Jayan Moorkkanatt (2010).
The issue of waving the cooling peri-
od was discussed in the past by the
highcourts as well the apex court. But
whether family courts have the power to
exercise discretionary powers in this
regard was never discussed. The
Supreme Court bench observed in the
present case that the period mentioned
in Section 13B(2) is not mandatory but
directory, hence it will be open to a
live together and that they have mutual-
ly agreed that the marriage should be
dissolved.
(2) On the motion of both the parties
made not earlier than six months after
the date of the presentation of the peti-
tion referred to in sub-section (1) and
not later than 18 months after the said
date, if the petition is not withdrawn in
the meantime, the court shall, on being
satisfied, after hearing the parties and
after making such inquiry as it thinks fit,
that a marriage has been solemnised
and that the averments in the petition
are true, pass a decree of divorce
declaring the marriage to be dissolved
with effect from the date of the decree.”
LastweekabenchofAdarshKGoel(left)
andUdayULalit(right)pronouncedthe
verdictthatacouplecangetdivorceby
mutualconsentwithoutthemandatory
sixmonthsseparationperiod

Legal Eye/ Case Pendency
HE huge pendency of ca-
ses at all levels has been
the bane of the judiciary.
But data from the Natio-
nal Judicial Data Grid
(NJDG), a monitoring
tool to identify, manage and reduce pen-
dency of cases, gives room for some
optimism. For the first time, the subor-
dinate judiciary in four states and a
Union Territory, namely, Haryana, Pun-
jab, Himachal Pradesh, Kerala and
Chandigarh, succeeded in bringing
down to less than one percent, the num-
ber of cases which have been pending
for over 10 years or more.
According to data available on the
website of NJDG, the number of cases
pending for over 10 years across the
country in the lower judiciary is
22,86,629, which is 8.93 percent of the
total pending cases. Of these, 6,16,162
cases are civil and 16,70,467, criminal.
Haryana, Punjab, Himachal Pradesh,
Kerala and Chandigarh have just 11,000
cases in total pending for over 10 years.
Cases pending between five to 10
years constitute 16.08 percent of the
total such cases. Cases pending between
two to five years constitute 28.49 per-
cent and those pending for less than
two years form a major part, ie., 46.5
percent of the total such cases. A further
break-up of the data shows that among
the pending cases, those in which senior
citizens are litigants constitute 4.29
percent and those filed by women,
10.21 percent.
The huge backlog of cases, and the
Operation Downsize
Thehugebacklogofcaseshasbeenthebaneofthejudiciary.Recentdatashowsthatsome
stateshavebeensuccessfulinreducingitinthesubordinatejudiciary,buthowtheyachievedit
isnotallthatclear
By Venkatasubramanian
T
JUSTICE DELAYED
The subordinate judiciary in several
states grapples with long pendency of
cases, with some dragging on for
over a decade
UNI
JUSTICE DELAYED
The subordinate judiciary in several
states grapples with long pendency of
cases, with some dragging on for
over a decade

number of years some cases have been
pending reflect the inefficiency of the
system. It hardly inspires the confidence
of the litigants. Needless to say, in order
that the rule of law has meaning and
value, resolution of cases before the
courts within a reasonable time is a
prerequisite.
NUMBER OF HEARINGS
According to a recent study by Daksh,
an NGO based in Bengaluru, which
undertakes research and activities to
promote accountability and better gov-
ernance in India, the number of hear-
ings dealt with by a judge daily is a key
factor to assess the reasons for the delay.
Putting a cap on the number of hearings
will allow reduction in judicial workload
and may improve efficiency and reduce
the number of times litigants have to
visit courts, the study, “State of the
Indian Judiciary”, claims.
Daksh’s study also claims that the
frequency of hearings is closely linked to
efficiency. The time spent on a case, the
frequency/infrequency of hearings and
change in judicial personnel not only
impact understanding of pendency but
also adversely affect the concept of fair
hearing. This is a fundamental promise
that the judiciary makes to the litigants,
the study explains.
Put in this context, does the NJDG
data regarding the almost zero pen-
dency of 10-year-old cases in four states
and a Union Territory, mark an
achievement of sorts? Not necessarily.
That this kind of data is considered as
an occasion for self-congratulation only
underlines the poor state of affairs in
the lower judiciary, experts say.
CRITICAL VIEWS
First and foremost, the NJDG data, say
experts, does not cover all the courts of
the lower judiciary in all the states. Sec-
ond, it is asked whether the subordinate
judiciary in those four states and one
Union Territory, while focusing on dis-
posing 10-year old cases, was indifferent
to many five-year old cases turning six-
year-old. While removing the backlog of
10-year-old cases does seem to be an
achievement, the fact that other cate-
gories of pending cases might have suf-
fered as a consequence is not considered
by the policy-makers and data inter-
preters, it is pointed out.
The NJDG data, for instance, does
not reveal the corresponding data of
cases for each year pending between 5
to 10 years.
Therefore, rather than celebrate
these so-called achievements, the overall
rate of case clearance would be a reliable
indicator of the efficiency of subordinate
judiciary in states, says an expert. It is
not a coincidence that the four states
and Union Territory which have been
successful in clearing the backlog of
10-year-old cases in the lower judiciary
are all small. Except Kerala, in the other
three states and Chandigarh, the num-
ber of case-filings is less than the other
states. In Kerala, the percentage of
case filing is higher probably because
of its higher literacy and other positive
development indicators. Thus in
HaryanaTopsinEndingDelays
Total Pending Cases in District & Subordinate Courts
Best States
10-year-
old cases
All pending
cases
% of Cases
Pending*
Haryana 376 6,21,158 0.06
Chandigarh 50 39,241 0.13
Punjab 1,271 5,47,950 0.23
Himachal 679 1,96,359 0.35
Kerala 8,688 11,01,540 0.79
*For 10 years. The details of pending cases in all district and subordinate courts,
other than high courts and Supreme Court, are as on Sept 4, 2017
Source: National Judicial Data Grid
UNI
AWARE OF THEIR RIGHTS
Literacy also has a bearing on the higher
percentage of filing of cases

August alone, 48,853 new cases were
filed in Kerala.
In Uttar Pradesh, the number of
judges in the lower judiciary is bound to
be more than the other states because of
its size. But the question to be asked is
whether the number is proportionately
more than the other states. The case
clearance rate of subordinate judiciary,
therefore, must tell us whether the state
is able to clear its backlog of cases irre-
spective of the number of years it takes
to dispose them, at a much faster rate
than the other states. Only then can we
reach definite conclusions about the
comparative efficiency of the state’s judi-
ciary in relation to another. But the
parameters for ascertaining this are not
readily available even on the NJDG.
In the absence of relevant data, the-
refore, one has to necessarily consider
whether the success of the lower judici-
ary in Punjab, Haryana and Chandigarh
—which are under the control of the
Punjab and Haryana High Court—has
got to do with certain parameters. This
includes the Court fixing annual targets
and action plans for judicial officers to
dispose of old civil and criminal cases
where the accused is in custody for over
two years. Quarterly (rather than mon-
thly) review of judicial officers’ perform-
ance by the High Court might have
been a safeguard against hasty disposal
of cases at the cost of the quality of jus-
tice. But we cannot conclusively say that
other high courts do not follow similar
strategies to monitor the performance of
the subordinate judiciary.
States like Assam, Madhya Pradesh,
Andhra Pradesh, Karnataka and Delhi
have also reportedly recorded very low
pendency of 10-year-old cases. Gujarat,
Uttar Pradesh, Odisha, Bihar and
Bengal, on the contrary, have high pen-
dency of such cases. It is, therefore, pos-
sible to compare the state of infrastruc-
ture, the number of vacancies of judges
and the quality of judicial recruitment
examinations in these states to arrive at
definite conclusions about the factors
that facilitate speedy disposal of cases.
STIFF RESISTANCE
The national district judge recruitment
examination, mooted by the Supreme
Court, to streamline the recruitment in
subordinate judiciary and to ensure
merit and transparency met with stiff
criticism. An attempt by the former
Chief Justice of India, Justice JS Khe-
har, to judicially deal with the issue dur-
ing his tenure met with resistance from
many high courts. Now, the matter will
be freshly considered by the apex court
as and when the case is heard again.
Other measures proposed to improve
the performance of subordinate judici-
ary include restricting adjournments,
curbing summer vacations and ensuring
audio-visual recording of court proceed-
ings, along with effective monitoring of
case status online. But studies which
would confirm correlation of effective
parameters with speedy, but qualitative
disposal of cases are the need of the
hour. This will ensure that our studies
go beyond assumptions and hypotheses.
With vigilante groups often dealing
out punishment to perceived offenders,
one needs to ask whether delays in the
justice delivery system have contribu-
ted to this ill.
PendingCases
Particulars Civil Cases
Criminal
Cases
Total Cases Percentage
Cases Pending
over 10 years
6,15,752 16,70,480 22,86,232 (8.92%)
Cases Pending
(Between 5 to 10 years)
11,98,731 29,20,387 41,19,118 (16.07%)
Cases Pending
(Between 2 to 5 years)
24,09,018 48,91,825 73,00,843 (28.48%)
Cases Pending
less than 2 years
36,78,667 82,49,756 1,19,28,423 (46.53%)
Total Pending Cases 79,02,168 1,77,32,448 25,634,616 (100%)
SOURCE: National Judicial Data Grid
Anil Shakya

HE huge backlog of cases in
Indian courts has been a
bane of the judiciary and has
left litigants wringing their
hands. In a bid to tackle this
vexatious issue, the high courts of
Orissa, Jharkhand, Madhya Pradesh,
Bihar and Karnataka have constituted
special benches to take up criminal
appeals in which the state has provided
legal aid to the parties. In addition,
they will work on Saturdays to hear
these appeals.
This action was taken after Chief
Justice of India Dipak Misra sent a let-
ter to the chief justices of high courts on
September 4.
In the letter, he referred to the “large
number of criminal appeals/ jail appeals
pending in various High Courts” and
said that the “delay in disposal of these
appeals raises questions about the effi-
cacy of the administration of justice as a
whole and criminal justice system in
particular”.
The letter added that “in the past,
various suggestions have been made to
fast-track cases of specified categories
for hearing” like “constitution of special
courts and working during vacations”.
Justice Misra suggested that one of the
ways to ensure speedy disposal of crimi-
nal appeals “is identification and dispos-
al of criminal appeals/jail appeals in
which legal aid has been provided at the
state expenses. This will go a long way
in ensuring speedy disposal of criminal
appeals/jail appeals”.
The letter asked the chief justices of
the high courts to “explore the possibili-
ty of hearing such criminal appeals/jail
appeals, in which legal aid has been
provided, on Saturdays by specifically
constituted bench for the purpose,
after obtaining consent of the concerned
legal-aid counsel and state counsel”.
In fact, a Supreme Court bench of
Justices J Chelameswar and S Abdul
Nazeer had recently expressed deep
shock over the inordinate pendency
of criminal appeals in various high
courts of the country.
This sorry state of affairs means that
often, convicts complete the maximum
sentence without bail.
The letter also states that some of the
chief justices of high courts had already
agreed to go ahead with the initiative.
It is learnt that the Gujarat and
Patna high courts had constituted spe-
cial benches to hear criminal appeals
on Saturdays.
Taking the Lead
OntheurgingofthechiefjusticeofIndia,fivehighcourtshave
constitutedspecialbenchestoreducethebacklog
By India Legal Team
T
“Thedelayinthe
disposalofthese
appealsraises
questionabout
theefficacyofthe
administration
ofjustice.”
—ChiefJusticeof
IndiaDipakMisra
DelhiHighCourt
Reshuffle
Cracking down on laxity in the sub-
ordinate judiciary, Delhi High
Court’s Acting Chief Justice Gita
Mittal ordered a reshuffle on
September 7. She ordered the trans-
fer of 87 judicial officers and promot-
ed 28 subordinate judicial officers.
She has also ordered abolishing of 13
traffic courts, and handed over their
work to the courts of metropolitan
magistrates.
The reshuffle comes two weeks
after her surprise visit, along with
other high court judges, to inspect
the punctuality and functioning of
district courts. She had visited the
Patiala House and a list was made of
the officials found to be late. There
have been instances of clearing the
system earlier too when Additional
Sessions Judge Raj Kapoor was
retired and subordinate judge Nilesh
Gupta, sacked.

SSUES about improving the func-
tioning of the subordinate judiciary
and reducing the humongous pen-
dency plaguing our courts have
been hanging fire for a long time.
Solutions aren’t easy, but the first
step is to accept that the problems exist.
The State Level Judicial Officers’ Con-
ference 2017 for Higher Judicial Offi-
cers, held on September 9 and 10 under
the auspices of the Allahabad High
Court, proved to be the right forum.
The function was presided over by
Allahabad High Court Chief Justice Dil-
ip B Bhosale. APN, a sister concern of
India Legal and the most popular news
channel in UP, had exclusive rights to it.
ALL-ENCOMPASSING DISCUSSION
The conclave organised by the Allahabad
High Court, featuring eminent legal
luminaries, mulled over issues plaguing the
Indian judiciary and offered viable solutions
Legal Eye/ Judicial Conference
“Speedy Trial a
Fundamental
Right”I
ThisviewofAllahabadHighCourtChiefJustice
DilipBBhosalewasattheheartofajudicialofficers’
meetwhereanumberofcontentiousissuesplaguing
thejudiciarywerediscussed
By Sujit Bhar

the sessions where junior judi-
cial officials had their doubts
cleared and made valuable sug-
gestions for the improvement
of the working of courts.
“Yesterday, I highlighted the
reluctance of the district judi-
ciary to grant routine bail and
interim bail. We have noticed
judges hesitate in passing deci-
sive orders, may be for known
or unknown fears. If the advice
of the brother judges of the
high court is followed, I am
sure the high court will not
have to chastise the subordi-
nate judiciary for their inability
to adjudicate upon interlocuto-
ry applications. If proper
orders are passed, you need not
carry any fear in the mind and
that will go a long way in
reducing your burden and also the bur-
den of the high court. Remember that
the litigating public demands speedy
and timely justice. Even from the point
of view of the accused, the right to
speedy trial is a fundamental right.”
The views of other judges
were as follows:
JUSTICE CHELAMESWAR:
It was felt that the common liti-
gant is averse to going to a
court of law, because the experi-
ence he has there is painful.
Justice Chelameswar said that
this must change. The image of
the judiciary, starting from the
subordinate judiciary, must be
litigant-friendly.
“The ultimate face of the
Indian judiciary is the face of
the subordinate judiciary. The
common man makes his assess-
ment of the legal system
through his perception of the
subordinate judiciary. And I
must say this is not a very
pleasant experience. Given the
opportunity, I don’t think many
people will have anything to do
with the judiciary. The system is
Present on the occasion were Sup-reme
Court Justices Jasti Chelameswar, AK
Sikri, RK Agrawal and Ashok Bhushan.
Not only was this the first such con-
ference in UP, but it took a critical look
at problems and offered some solutions.
As this was mainly looking at the func-
tioning of the subordinate judiciary,
matters discussed included pendency
and how to tackle it, the attitude and
bearing of judges and how it would
affect the common man and the lacunae
in providing speedy and quality justice.
CHIEF JUSTICE DILIP B BHOSALE
SAID ON THE OCCASION:
“We are in the process of striking a bal-
ance between the performance parame-
ters of judicial and administrative areas.
I feel this conference gave a great oppor-
tunity to the judiciary to review the
working of subordinate courts and tried
to bridge the gap between expectation
and performance.”
He said the primary aim of the con-
ference was to critically explore the sho-
rtcomings in elevating the prestige of
the judicial institutions. He talked about
such that it becomes very painful for
anybody to approach the legal system.”
He added that it was the magistrate
of this country who was the first officer
who ensures the liberties of the people.
“And the constitution ordains that any
man arrested is required to be produced
before the magistrate as early as possi-
ble. Only after his (the magistrate)
touching the matter does the question
come before the other courts.”
Justice Chelameswar also said the
government was burdening the judiciary
by forcing it to handle the National
Legal Services Authority, where the
seniormost judge of the Supreme Court
is expected to be the executive chair-
man. The chief justice is the ex-officio
patron-in-chief. He said there needs to
be a system within the judicial ambit to
handle this.
Speaking about pendency, he said
that most often everybody “finds fault
with us. Once we go to the court, it takes
20 years, the judiciary gives adjourn-
ments etc., they say. I can understand
the litigant blaming, because he is sim-
ply worried about his case and the
result. But those who hold responsible
positions, those who believe to be the
intelligentsia of the country, those

who write columns in newspapers, none
of them really spend time to analyse
where exactly is the problem and what is
the solution.”
He also was critical of the govern-
ment’s policy of having the chief justice
of a court from another state. “I will tell
you the negative aspect of this policy
because I have had the privilege of being
the chief justice of two high courts. And
quite a long stint of about four-and-a-
half years. Mine is an exception, the
average tenure of a chief justice is about
one year. When a judge goes to another
high court as chief justice, it would take
some time for the chief justice to under-
stand the local conditions, the local
problems... a CJ needs to pay attention
towards administration and this
requires time. A judge rising to be CJ of
his own high court has the advantage of
knowing the system for 25-30 years, so
from day 1 he can try to address the
problems. But a transferred CJ has to
start from scratch.”
JUSTICE SIKRI:
He said the main work of judges is to
decide cases and do this the best they
can. “In this process, we have to think
what is role of judges are in the judicial
system. If you look at this carefully you
will find a connection in all these issues.
I say this conference was to tell you how
to develop judicial cases and how to
gain know-ledge. More important than
that, however, is how to adopt a good
work culture.”
He said work culture was an “atti-
tude. It is not more cases in less time. It
is about good justice, a good outlook
behind all this”.
JUSTICE RK AGARWAL:
“The subordinate judiciary is the bed-
rock on which stands the entire edifice
of justice. It is undoubtedly the founda-
tion of our judicial system. Being situ-
ated at the grassroots levels, it symbol-
izes the epitome of justice. To be a
judge is a privilege and we have to
remember that the authority to govern
has certain duties and obligations
attached. The first and foremost attrib-
ute you must inculcate as a judicial offi-
cer is the necessity of conducting your-
self in such a manner both inside and
outside the court so as not to provoke
any critique.”
He added: “You will be aware that
pursuing claims in the lower courts is a
difficult process, yet the litigants do so
because of the faith they have in the
system. This we can ensure by provid-
ing greater resources and great financial
commitment to the lower courts.”
JUSTICE ASHOK BHUSHAN:
“The judicial affairs of the Allahabad
HC carry an enormous burden, with
the state of UP having the largest
population and the litigation enormous
as well. Hence there is greater need for
efficiency,” he said.
He talked not only about the judges’
conduct inside and outside courts but
also of judicial officers. “This is espe-
cially pertinent to the district judici-
ary....civil courts are the final courts in
75 percent of all cases. The perception
of the judiciary in the eyes of the ordi-
nary citizen is shaped by the working
of the subordinate judiciary. Therefore,
an effective and modern system at the
level of the subordinate judiciary is
essential.”
Legal Eye/ Judicial Conference
Themattersdiscussedinthecon-
ferenceincludedpendencyand
howtotackleit,theattitudeand
bearingofjudgesandhowit
wouldaffectthecommonman.

scrap shop in Old Seelampur. Suddenly,
five police officials—ASI Pawan Malik
and his team of Manoj, Satyaveer,
Sunil and Rambir from Krishna Nagar
police station—came there and took
them into custody and filed two FIRs
against them.
ASI Malik was the complainant in
the first FIR, which was lodged by the
Krishna Nagar police. Mursalin and
Asif were booked under Sections 25, 54
and 59 of the Arms Act. And contrary to
facts, the FIR said they were caught as
they were going on a motorbike. Ano-
ther FIR was lodged with the Pandav
Nagar police station under Section 379
(Punishment for theft) and 411 (dishon-
estly receiving stolen property). A copy
of the first FIR is with India Legal.
POLICE ALLEGATIONS
The first FIR mentions that the police
“caught” both the accused near Ganda
Nala on the basis of information from
their sources. It also mentions that the
sources had informed that Asif and
Mursalin, along with others, had com-
N a shocking case, two innocent
men in Delhi were picked up by the
police, charged with crimes they
hadn’t committed and sent to jail.
Thanks to a chief metropolitan
magistrate of a district court who
believed in their innocence, they were
finally let off.
The misfortunes of Mursalin Malik,
44, and his friend Asif Malik, 35, started
on November 7, 2016, when they were
sitting with friends in their computer
Twoordinarymenwereimplicatedbythepoliceandbranded
ascriminalstillhelpcamefromanunexpectedquarter
By Lilly Paul
HELPFUL FOOTAGE
CCTV footage shows Mursalin
Malik and Asif Malik being
questioned by five policemen
outside their shop in Seelampur
Crime/ False Case
Saved by a
CCTV Camera
I

lawyer succeeded in persuading Naresh
Kumar Laka, the chief metropolitan
magistrate (CMM) of the Court, to
watch the CCTV footage. He also got the
CCTV footage checked by a forensic lab
and submitted the report.
BAIL GRANTED
Luckily for the men, the CMM watched
the video and after checking its authen-
ticity, granted them bail. He also cast
serious doubts about the veracity of the
police version and ordered the investi-
gating officer to bring out the truth.
Laka’s report said: “In the light of the
aforesaid circumstances and finding
serious doubts in the case of the police
agency, both applicants/accused persons
are admitted to bail on furnishing per-
sonal and surety bond in sum of
Rs.10,000/- each.”
It is believed that Mursalin and Asif
had a personal rivalry with some other
people and that the police sided with
them. Nevertheless, one wonders why
the police implicated these two by lodg-
ing a false FIR.
Tarun Aggarwal told India Legal:
“These police officials are punishable for
keeping illegal weapons and a stolen
bike. This is a case of misuse of office. It
is clear that the police has taken money
from someone to trap them.”
Mursalin had now written to the
police commissioner and the National
Human Rights Commission, seeking
action against the guilty officials and a
fair investigation into the matter. They
filed a complaint with the Public
Grievance Commission of the govern-
ment of Delhi and it was forwarded to
the additional commissioner of police
(vigilance) on May 12, 2017, for action
within three weeks.
The two aggrieved men have got no
response from any of the police depart-
ments so far, making one wonder
whether the police slogan, “With You,
For You, Always”, is just hype.
mitted loot in Kashna region of Uttar
Pradesh a fortnight back. The police
also mentioned that it had confiscated a
loaded pistol, a live cartridge and other
ammunition from Asif. As Mursalin
could not produce papers of the motor-
bike, the police also booked them for
keeping a stolen bike.
Asif and Mursalin had nothing to
prove their innocence except footage of
a CCTV camera installed near their
shop—something which the police did
not anticipate. The CCTV recording
clearly shows five men in civilian dress
coming and interrogating them and tak-
ing them away.
Distressed over this turn of events,
Mursalin’s brother, Mehraj Malik, e-
mailed a letter to the police commis-
sioner the same day. He mentioned that
5-6 people had arrested his brother
without any just reason and said the
“police officials” might be some anti-
social elements. The police then pre-
sented Mursalin and Asif before Kar-
kardooma District Court, from where
they were sent to Tihar jail. Their
lawyer, Tarun Aggarwal applied for bail,
but it was rejected as they were charged
for a criminal offence. However, the
SEEKING JUSTICE: (Below) The attitude of
police in this case belies the slogan “With
You, For You, Always”; (Bottom) The Chief
Metropolitan Magistrate of Karkardooma
Court gave the accused a patient hearing
delhincrnews.in

Probe/ Gurmeet Ram Rahim
HERE appears to be no
end to controversies emer-
ging out of Dera Sacha
Sauda, including skeletons
literally tumbling out. Ever
since its chief, Gurmeet
Ram Rahim, was convicted and sen-
tenced for the rape of two sadhvis last
month, events unfolding there have
been unsavoury, to say the least.
A massive search of the sprawling
700-acre Dera headquarters at Sirsa in
Haryana has yielded seizures as well as
information about certain illegal activi-
ties, which are being investigated by the
police. These include a secret tunnel
that joined the Ram Rahim’s “gufa” or
residence with the hostel for sadhvis,
illegal abortions in the hi-tech hospital
inside the Dera and some other medical
practices which were done without pro-
per permissions.
There are also reports from Uttar
Pradesh about a large number of cadav-
ers sent to private medical educational
institutions from the Dera. These rep-
orts are based on the findings of a team
from the Union health ministry that had
gone to inspect private medical colleges.
HEALTH MINISTRY REPORT
This report, which was submitted to the
government, said that the Dera had sent
14 bodies to GCRG Institute of Medical
Sciences in Lucknow between January
2017 and August 2017. The team report-
edly asserted that these bodies were sent
to the Institute without any death cer-
tificate or police report. Asked about the
receipt of cadavers from Dera Sacha
Sauda, the Institute’s officials informed
the team that almost all private colleges
in the region had been receiving cadav-
ers for research and training purposes
from the Dera. They indicated that 80
percent of the cadavers in these insti-
tutes were procured from the Dera. As
per norms, each medical college is sup-
posed to have one cadaver per 10 stu-
dents for practical training.
The team said in its report that
"these dead bodies were sent between
January 2017 and August 2017. No
death certificate was issued of these
dead bodies. No permission was also
taken from the government authorities.
No rules, regulations or paper work had
been done and this was why it was an
illegal act”.
Defending the procurement of
Skeletons in Dera’s Closet
Asearchofthe700-acreestateinSirsahasshownthatitwasadenofmany
malpracticeswhereguidelinesmaynothavebeenfollowed
By Vipin Pubby in Chandigarh
T
SAINTLY
PRIVILEGES?
Ram Rahim’s Dera
complex in Sirsa;
a swanky room
inside the
self-styled
godman’s
residence

cadavers from the Dera, the Institute’s
marketing and public relations head,
Luxmi Kant Pandey, said there were no
irregularities in the exercise. He said
when the Institute was opened last year,
authorities here made enquiries from
other medical colleges in the region
about the procedure of acquiring cadav-
ers for students. They were told that
most of these come from the Dera Sacha
Sauda. He said they contacted the Dera
after learning that there was a tradition
among its followers to donate cadavers
for medical education.
SOCIAL WELFARE
In fact, the Dera itself had listed the tra-
dition among the social welfare activi-
ties taken up by it under the guidance of
its chief. Its followers were told that
such a donation was a noble gesture for
the cause of humanity. The Institute’s
authorities claimed that each family
who donated a cadaver was given a cer-
tificate and a letter of thanks. They also
said that all persons whose bodies were
donated, had died of natural causes and
all legal formalities were undertaken.
Following media reports, Haryana
Health Minister Anil Vij has marked an
investigation into the issue to find out
whether proper guidelines were fol-
lowed while handing over the bodies.
Incidentally, most medical colleges,
including the premier Postgraduate
Institute of Medical Education and
Research (PGIMER) have been facing a
severe shortage of cadavers and had
been urging people to make such dona-
tions for the benefit of medical students.
Meanwhile, in an evident step to pre-
empt suspicion or speculations, the
Dera's mouthpiece, Sach Kahoon, came
out with a disclosure before the search
operations began there that human
remains were buried inside the complex.
The newspaper defended it by saying
that it was done as their chief encour-
aged followers to bury the remains and
prevent them from being immersed in
rivers, causing pollution. It also claimed
that trees were planted on these
remains. A spokesman of the Dera clari-
fied that what was buried was not skele-
tons but remains of cremated bodies
(asthiyan), which are traditionally
immersed in rivers. He said proper
records had been kept.
MTP CASES
The latest in the series of alleged irregu-
larities are reports regarding violation of
the Medical Termination of Pregnancy
(MTP) Act at the state-of-the-art Shah
Satnam Hospital inside the Dera com-
plex. The 400-bed hospital has the lat-
est medical gadgets and provided facili-
ties to Dera followers and others at a
nominal price. Some of the equipment,
it was claimed, was not available even in
leading private and public hospitals.
An inspection team that accompa-
nied the search party inside the Dera
headquarters said that a large number
of MTPs were conducted in the hospital
without following proper guidelines.
The hospital had an ultrasound facility
but it was yet to be investigated whether
rules of the Pre-Conception and Pre-
Natal Diagnostics Technique, were fol-
lowed or not.
There is no doubt that the Dera was
undertaking social welfare projects and
there was nothing wrong with its
preachings. That, however, does not
absolve Ram Rahim of wrongdoings or
his followers who caused a rampage in
Panchkula. If there were any irregulari-
ties, they need to be probed.
IN THE NAME
OF FAITH
(Above) The state-
of-the-art Shah
Satnam hosiptal
inside the Dera
complex;
(Left) Dera women
supporters
UNI

India Legal 25 September 2017

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