India Legal 28 August 2017

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ASHINGTON DC: As a summer
of discontent unfolds in America,
the world waits and watches to
discover how far the most power-
ful man can manoeuvre the legal
and constitutional chains which bind together the
most powerful democracy on earth into a nation
governed by the rule of law.
The biggest story in the US as of now is not
what President Donald Trump is doing to circum-
vent the boundaries of political circumspection
laid through convention, law, precedents and
plain, good old-fashioned sense of decency, but
what the country’s institutions are doing to resist
the onslaught.
The story so far is that America is not taking it
lying down. The President may control the most
formidable armed forces in the world, the nuclear
codes of an Armageddon, the Republican Party
majority in both Houses of the Congress and a
determined cohort of hardcore supporters who
would not budge from their loyalty, as Trump
once said during the campaign “even if I stood in
the middle of Fifth Avenue (in New York) and
shoot somebody”. But as hard as he may try, he
has not so far been able to make a major dent
in any American institution on which the
Republic has been founded.
If anything, the fightback, the
“resistance”, is as strong as Trump’s
attempt to overcome it. His
most recent attempt at using
divisive tactics—“polarisation”
as it is called in India—came
during his now infamous press con-
ference at New York’s Trump Towers.
Here, he equally blamed a non-existent
“alt left” and white supremacist Nazis for
the violence and death of a young woman
following a torchlight procession in
Charlottesville, Virginia, where right-
wing fanatics carried assault weapons
and Hitler Youth flags, screaming racist
and anti-Jewish slogans.
Despite his own attorney general, Jeff Sessions,
having earlier condemned these neo-Nazis,
Trump took his gloves off and showed sympathy
for some of the “nice” people who marched with
the violent white supremacists whose stated goal
is to make America white again and relegate all
non-white immigrants to second class citizenship.
The Nazi demonstration was to protest the
pulling down of the statue of Gen Robert E Lee,
the leader of the separatist pro-slavery Southern
forces who rebelled against the American union
in the Civil War of the 1860s. Communities across
American cities are pulling down these “confeder-
ate statues” because they are considered a blot on
the modern American values of equal and civil
rights and racial and ethnic justice.
Trump went even farther and actually praised
these confederate rebel leaders who tried unsuc-
cessfully to split America through an armed rebel-
lion as American patriots who were part of its
heritage. Well, this certainly didn’t win him any
friends on Fifth Avenue in New York. In fact,
when he came to visit his Trump Towers apart-
ment last week, thousands of demonstrators gath-
ered on the street to boo him. The local police had
to barricade the Avenue for the next couple of
days Trump stayed there before he fled to his New
Jersey Golf Course resort and tweeted even more
defiance from there, much to the chagrin of his
White House staff.
This is the first time in history that a US
President had openly and defiantly espoused the
cause of confederate leaders who went to war
against their own country to defend the continua-
tion of slavery, as well as equated armed anti-
Semitic and racist street marchers with those who
opposed their bigotry.
During the presidential campaign, Trump’s
speeches about immigration, his views on women,
his blatantly sexist denigration of women, his
record of not allowing blacks into his deve-
lopment projects had all pointed to a racist,
AMERICAN FIGHTBACK:
THE BIG STORY
Inderjit Badhwar
Letter from the Editor
W
| INDIA LEGAL | August 28, 2017 3

4 August 28, 2017
megalomaniacal misogynist in the race which he
won with less than 48 percent of the popular vote.
But many Americans believed that as he settles
into the presidency, he would settle into his job.
As Jim Thomas, a nuclear engineer and promi-
nent blogger told me: “Not all of Trump’s support-
ers are racist or alt right members. But these
extremist groups are strong supporters. That’s
why his first response to being asked to condemn
David Duke (the Grand Wizard of the white sup-
remacist Ku Klux Klan) was to claim he did not
know him! Trump’s press conference, however,
was the worst performance I have ever seen in my
lifetime. I cannot believe that I actually thought
he would grow into the job. Wow, was I wrong!”
T
homas is hardly alone. Polls show that
because of Trump’s erratic and authoritari-
an behaviour, his core support across the
nation has dropped by more than 30 percent. As I
said earlier, the big story in America right now is
about not only individuals, but also those fighting
back to try and save the legal and institutional
values of their nation.
The first counter attack was launched by the
judiciary when it ruled that Trump’s immigration
restrictions were discriminatory and halted any
further implementation without modifications.
Final judgments and challenges are still awaited.
Immediately after Trump’s recent press confer-
ence, mayors across cities, starting with
Baltimore, have begun pulling down confederate
statues. In an unprecedented action, all the Joint
Chiefs of Staff have signed
a statement expressing
their abhorrence for white
supremacist doctrines,
racism and Nazi sympa-
thisers. Many American
football players have pre-
ferred to kneel rather than
stand as the national
anthem is played during
this pre-season kick-off
time as a mark of protest
against the Charlottesville
march and Trump’s refusal
to condemn it.
While Trump’s party is
not yet splitting over this
issue—there has been no
explicit condemnation of
him as I am writing this—
the Party’s Congressmen and senators are, for the
most part, nervous and even horrified. Indirectly,
though, many powerful voices like Senator Ted
Cruz of Texas have vilified and condemned white
supremacism in all its manifestations.
The biggest surprise, however, has come from
the captains of commerce and industry—which is
a story in itself. Last week, top American CEOs,
who have long avoided politics, but who are huge
contributors to the Republican Party, began
resigning from their positions in Trump’s business
advisory councils. This was in response to his
refusal to condemn the white supremacist move-
ment and the events at Charlottesville. The
biggest blow was dealt by Walmart chief Doug
McMillon who commands 4,692 stores across
America, attracting 140 million customers a week.
He excoriated Trump in a letter circulated to all
his employees for “not unequivocally rejecting the
appalling actions of white supremacists”. Some of
the more prominent corporate defections from
the White House include Pepsico’s Indra Nooyi,
General Motors’ Mary Barra, IBM’s Virginia
Rometty and Rich Lesser head of the Boston
Consulting Group. The chiefs of Merck, Intel, and
Under Armor had stepped down earlier.
Wrote James B Stewart in Business Day: “Such
a public schism between a president and a busi-
ness leadership long considered the backbone of
the Republican establishment left corporate histo-
rians at a loss for precedent.”
The fightback against the possible adverse
national divisive effect of a Trump presidency had
Letter from the Editor
ADIEU BIGOTRY!
Starting with
Baltimore, mayors
across US cities have
begun pulling down
confederate statues
Twitter

begun in the mainstream American media during
the election campaign last year when every man-
ner of skeleton came tumbling out of Trump’s
closet. He dismissed The Washington Post,
CNBC, CNN and CBS as purveyors of fake news,
while he aired his view uncensored and unques-
tioned on FOX News and Breitbart. Despite the
official opprobrium heaped upon them, main-
stream American media persisted doggedly in
“doing our job”, neither cringing nor bowing, not
scraping, and refusing to be intimidated. In fact,
Trump’s presidency caused a more or less somno-
lent media, including late night TV political
satirists like Bill Maher and the Saturday Night
Live crew, to bounce back to life with fearless
commentary and some of the best investigative
reporting seen since Watergate.
Today, even the New York Post, owned by
Rupert Murdoch, Trump’s friend, has been criti-
cal of the President’s stand on white nationalists.
The mainline press has been merciless. A CNBC
commentator described Trump as a “moral mon-
ster”. Following the Trump presser in New York,
another national channel titled a special pro-
gramme on him, “Divider in Chief.”
A
s I see it, having spent my youth as a
young reporter in America, the socio-
political regression is incredible. The alt
right had always been strong and vociferous and
aggressive. But the lynchings and cross burnings
had subsided following the strong enforcement of
civil rights legislation in the 1960s during the
Kennedy-Johnson era by the federal government.
What we are seeing today is the post-Obama
“whitelash” emboldened by Trump’s electoral vic-
tory which was fuelled by barely disguised sublim-
inal signals appealing to white resentment over
being “left behind” the starting line because of
perceived advantages given to other races through
affirmative action and the relentless onslaught on
Jim Crow.
I use the word “regression” only to illustrate
the point that in the 1960s and early 1970s as
desegregation was proceeding through measures
like compulsory school bussing, white angst was
palpable in the likes of Governors George Wallace
and Lester Maddox, openly-expressed racism and
anti-Semitism. These were already politically
unacceptable even in the Washington Republican
establishment, though like Richard Nixon, it fed
surreptitiously on this sentiment.
But even Nixon, for those who may care to re-
member, was forced to fire his Agriculture Secre-
tary Earl Butz for sharing a private anti-Black
joke during a plane ride with singer Pat Boone.
This kind of sensitivity may have been en-
forced but it did show, nonetheless, that America
had risen to a state of socio-political conscious-
ness in which there would be ZERO tolerance for
any display of racism—public or private—at the
presidential level.
This is what has been compromised under the
Trump presidency. He is finally out of the closet
and standing up for what he believes in.
But the bigger story is that not just the “fake
press”—but most American institutions and
responsible people who lead them are standing up
to him. It’s a fightback.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
WANING WARMTH
(Above) Top American
CEOs have begun
resigning from
Trump’s business
advisory councils;
The New York Post,
owned by Rupert
Murdoch (left), was
also critical of the
President’s stand on
white nationalists

6 August 28, 2017
ContentsVOLUME. X ISSUE. 41
AUGUST28,2017
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Technical Executive Anubhav Tyagi
What Happened in Gorakhpur
The shocking deaths of over 100 children in a government hospital in Uttar Pradesh show
up the serious rot in the public healthcare system. Stricter laws are necessary. A report
14
LEAD
Judge of Strong Convictions
With Justice Dipak Misra taking up the mantle of the Chief
Justice of India, there is hope for the have-nots. Plus, a
brief look at the careers of five CJIs-in-waiting
PROFILE
“Take Pride in Your Identity”
Every citizen should be proud of his religion and ethnicity as all people are equal, Justice
JS Khehar asserts on Independence Day
25
EVENT
20

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................12
Media Watch ..................49
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
Ashok Kumar’s Complaint
The Madras High Court’s order blocking 2,650 sites, ostensibly to
prevent copyright infringement of some films, triggers concerns
32
COURTS
Love versus Jihad
The Hadiya ruling has thrown the spotlight on weddings wherein
post marriage, women have been trafficked to IS areas
26
Black Money Flight
With the Automatic Exchange of Common
Information kicking in from 2018,
unaccounted wealth in banks in
Switzerland is being withdrawn and
parked in the US, Dubai and Singapore
ECONOMY
46
A Case of
Historical Envy
The RTI vehicle is being used
to give an idiot question—
whether or not the Taj is a
temple gifted to the Mughal
emperor by a Hindu king—a
veneer of respectability and
acceptability
FOCUS
40
Policy Loophole
Legislation is required to ensure that the right of the public to
access legitimate content remains untrammelled
35
Handle with Care
The decision to examine the validity of articles 35A and 370,
both pertaining to Jammu & Kashmir, may create tensions
29
Not as Safe as Houses
Will the Real Estate (Regulation and Development) Act bring relief to the multitudes
fooled by builders who have declared insolvency after extracting money from them?
ACTS&BILLS
42
SUPREMECOURT
Behave or Perish
“Dubious conduct” is why some judges are being compulsorily
retired. The centre, too, is implementing a related programme
38
LEGALEYE

8 August 28, 2017
“
RINGSIDE
“No one is born hating another person
because of the color of his skin or his
background or his religion....”
—Former US President Barack Obama, following
the Charlottesville violence, in a Tweet that got
more than 40 lakh likes
“We never expected
India will move
from its righteous
and moral stand
and pay that huge
courtesy to Israel. I
can say that while
we call for a role for
China and a role for
Russia, we are very
hesitant to call for a
role for India.”
—Syrian president
Assad’s aide
Bouthaina Shaaban,
to the Hindustan
Times
“Modi is reducing
the duration of his
speeches by the year,
as now he has noth-
ing to talk about. My
mom had attended
the Independence
Day parade and I
asked her, how was
Modi’s speech. She
said, it was shorter
than last year.”
—Congress vice-
president Rahul
Gandhi, launching
Indira Canteen in
Bengaluru
“Let’s ponder how
is it that guns
manufactured
elsewhere find
their way into
every Muslim soci-
ety? Why should it
happen? Why
can’t our young-
sters be put in
productive creative
streams?
—J&K Chief
Minister Mehbooba
Mufti, delivering
the Independence
Day speech
“Son of a very influen-
tial leader was recently
caught for committing
crime against women.
Another leader com-
mented that women
should not venture out
at night. I wish to slap
that leader.”
—Delhi Chief Minister
Arvind Kejriwal, dur-
ing his Independence
Day speech
“I asked if this was a
kanwar yatra or a
funeral procession. If
they don’t play music
and drums, don’t
dance and sing, don’t
use the mike, how will
it be a kanwar yatra?”
—UP Chief Minister
Yogi Adityanath, justi-
fying the use of loud-
speakers during
Kanwar yatra, at an
event in Lucknow
“If you do not give
anything, you will not
get anything in return.
If you give this one
plot, you will win
crores of hearts.”
—Shia leader Maulana
Kalbe Sadiq, urging
Muslims to give the dis-
puted site in Ayodhya
for a temple, at a peace
conclave in Mumbai
“There are good,
bright, able children.
Whether they are chil-
dren of judges or not,
in independent India
we stand together to
achieve whatever we
can achieve. Everybody
should get a chance.”
—Justice JS Khehar, on
allegations of nepotism
in the Bench, at the
Independence Day
function in the
Supreme Court

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
CBI’S WOES
The PMO is drawing up a
short list of people to fill
vacancies in seven states
which are without gover-
nors. Bihar fell vacant
after Ram Nath Kovind
became President, while
Raj Bhavans in Aruna-
chal, Telangana, Tamil
Nadu, Meghalaya,
Madhya Pradesh and
Assam are empty. Also,
J&K governor NN Vohra
has asked for premature
retirement. His replace-
ment could be former
home secretary Anil
Baijal. Another sure can-
didate for filling one of
the gubernatorial vacan-
cies is SM Krishna who
recently quit the Cong-
ress to join BJP. Another
candidate is Shanta
Reddy from Andhra
Pradesh who is a mem-
ber of the BJP’s National
Committee.
One file with the PMO and the
ministry of personnel that
needs immediate action per-
tains to filling up vacancies in
the CBI. According to sources
in the investigating agency, it is
currently functioning with 5,868
officers—woefully short of the
sanctioned strength of 7,274.
This has had a telling blow on
its functioning with the number
of pending cases touching
1,174 cases. Of these, 157
cases are pending for more
than two years, 36 for more
than five years and six cases
for more than 10 years. Accor-
ding to the CBI, even if the
existing vacancies are filled up
the-re will still be pendency
because the agency gets
about 250 new cases every
year. Many of these require
detailed investigation. A 40
percent increase in sanctioned
staff strength is what the
“caged parrot”—as the CBI is
often referred to—is demand-
ing. It hopes for a favourable
ruling from the prime minister.
TAILPIECE
The RSS rush to rewrite history
alternates between ridiculous
and hilarious. The Sanskrit text-
book for Class VIII in CBSE-
affiliated schools in Madhya
Pradesh says that India won
the 1962 war against China!
“What famously came to be
known as Sino-India war of
1962 was won by India against
China,” the book says.
The Prime Minister’s slogan of
Congress-Mukt Bharat actually
targets two people—Sonia and
Rahul. Demolish them and the
party falls apart. The man for the
job is, naturally, Amit Shah and
his brief is to ensure their defeats
in Amethi and Rae Bareilly come
2019. The effort and money put
into trying to sabotage Ahmed
Patel’s Rajya Sabha nomination was
because it would have reflected on Sonia.
That didn’t work so the two constituencies
are next. BJP party workers are busy put-
ting up posters of Sonia “Missing” and
Rahul “Missing”, central institutes in both
constituencies are being shut down—the
Rajiv Gandhi Indian Institute of Information
in Amethi, along with a food park project.
Another project meant for farmers has
bitten the dust and more will follow. Like the
Ahmed Patel case, the key strategy is to put
up a prominent Congress rebel against the
incumbents—Sanjay Singh, the erstwhile
Raja of Amethi, is being ardently wooed to
take on Rahul while Smriti Irani has been
deputed to find a suitable Congress leader
to turn against Sonia.
GUNNING FOR
THE GANDHIS
SEARCH FOR
GOVERNORS
Former BJP president and newly-elected
Rajya Sabha MP Amit Shah is back to
doing what he is best at—planning for the
2019 elections. To ensure a BJP victory,
Shah has asked party MPs and workers to
go on a drive to woo those who will be of
voting age at the time of the next general
elections. The new “catch them young”
campaign will involve reaching out to 35
million new voters who will turn 18 next year
and to educate them on the positives that
will accrue from giving Narendra Modi a
second term in office. The campaign will
also have a saffron tinge with the young
being educated in the teach-
ings of Deendayal
Upadhyaya and other Jan
Sangh/RSS ideologues.
Party MPs have been
directed to hold conven-
tions/conclaves in their
constituencies target-
ing young new voters
on a priority basis.
CATCH THEM YOUNG
Anil Baijal SM Krishna

Two police officers from Gujarat, who
were re-appointed by the Gujarat gov-
ernment after they had retired, were asked
to put in their papers by the Supreme Cou-
rt on August 17. One of the retired officers,
NK Amin, was re-inducted as Superinten-
dent of Police of Mahisagar district in
Gujarat on a one-year contract while the
other, Tarun Barot, was re-appointed as
Deputy Superintendent of Police in the
Western Railways at Vadodara for a year.
Both the officers were accused in encoun-
ter killings—Amin in the Sohrabuddin
encounter case and Barot in the Ishrat
Jahan case.
The apex court said that if the police
officers did not quit on August 17 itself,
they would pass orders in that regard. But
the concerned officers assured the Court
that they would resign.
This is another instance when the
Gujarat government’s appointment of
police officers was struck down by the
same bench of the apex court—the first
being that of director general of Police,
PP Pandey. Pandey had been granted
extension in service despite being charge-
sheeted in the Ishrat Jahan case. Pandey
had to quit after the Court asked him to.
A retired police officer from Gujarat,
Rahul Sharma had appealed in the apex
court against the re-appointments. He
alleged that the track record of the officers
was “questionable”, and in contravention
of the “doctrine of public trust”. The peti-
tion further alleged that both had served
jail terms.
The Gujarat High Court had earlier
turned down Sharma’s plea against the
re-appointments in March.
The Supreme Court recently instructed
that all the 241 anti-Sikh riots cases of
1984 be scrutinised by the SIT and probed
afresh. The SIT formed by the centre in
2015 had suggested that these cases be
closed.
The Court wanted to ascertain
whether the SIT’s conclusion was
correct and ruled that a “superviso-
ry” panel, consisting of two retired
judges of the Supreme Court must
examine the cases to find out any
trace of evidence in them on the
basis of wh-ich legal action could be
initiated. The panel will submit its
report within three months. The
names of the two judges were yet to
be decided.
S Gurlad Singh Kahlon had app-
roached the apex court pleading for an
independent probe into the anti-Sikh riot
cases. The SIT was set up to re-open
those cases which had been closed by the
Delhi Police on the ground that there was
not enough evidence.
A case for
audiovisual
recording of
proceedings
Courts
10 August 28, 2017
The Supreme Court sup-
ported the idea of audio-
recording of court proceed-
ings, unlike in the past, but
ruled that these will not be
subject to RTI. It felt that the
issue needs to be examined
in detail.
The apex court had earli-
er instructed high courts to
install CCTV cameras (sans
audio) in courtrooms and
the order pertained to two
districts of each state and
UT. Now the court felt that
audio-visual recording of
proceedings before tribunals,
hearings in high courts and
even the Supreme Court
could be done.
The Court remarked:
“Constitutional courts in oth-
er countries have audio and
video recording. It is not a
matter of privacy of judges”.
The Court’s observation
came while it was dealing
with the progress made by
high courts to implement
its order on installing CCTV
cameras.
The centre while inform-
ing the Court that its direc-
tions on installing CCTV
cameras had been followed
by eight high courts and that
other courts were in the
process of implementing the
order, pleaded that the video
recording of proceedings
should be extended to audio
as well.
The matter will come up
again on November 21.
SC asks
two senior
Gujarat
cops to
step down
Re-examine anti-Sikh
riot cases
Tarun Barot N K Amin

Although freedom to follow one’s religion is a
fundamental right and no interference can
be allowed, but at the same time the mosques
were obliged to abide by the Supreme Court
stipulations, the Madras High Court observed.
The Court was referring to playing of loud-
speakers for azaan (prayer call) by mosques.
The Court made its observations while hear-
ing a PIL which alleged that loudspeakers from
mosques in a taluk in Coimbatore district were
arbitrarily taken away by senior police officials.
According to the petition, the authorities claimed
that the sound levels of the loudspeakers were
above the permissible limits. But that was not
the case and the concerned authorities did not
care to find out the truth, the petitioner Shaw
Nawaz claimed. The High Court posted the mat-
ter for September 4.
Freedomofreligion
haslimitations
The beautification of the Haji Ali Dargah
campus in south Mumbai should be com-
pleted by December 31, 2017, the Supreme
Court ruled. It asked the Collector of Mumbai
to call a meeting of all stakeholders and au-
thorities on September 4 and take a call on
whether the proposed beautification plan was
acceptable, whether some modifications were
required, or if a new beautification plan need-
ed to be drafted.
The final decision must be taken within
three weeks of the meeting, the Court ruled. It
wanted the final plan along with a programme
for implementation placed before it on Octo-
ber 4, the next date of hearing.
The state government informed the Court
that all squatters had been removed barring
six illegal structures. The apex court then said
that the “concerned Court/ authority shall dis-
pose of the pending matters finally, one way
or the other”.
The Bombay High Court came to the rescue
of a candidate who was disqualified in the
medical test for the post of a sub-inspector in
the Central Industrial Security Force (CISF). It
asked CISF to allow Sangharsh Lonekar to again
go through the selection process. Lonekar had
tattoo marks on his arms and was rejected by
the medical examiner. Later, a panel upheld the
decision. Lonekar had already cleared the writ-
ten test before medical tests.
He challenged the decision in the Bombay
High Court, arguing that at the time when the
advertisement for the post was released in
2016, nothing was said about tattoos. The tat-
too stipulations were only incorporated in the
ads released in 2017. The counsel on Lonekar’s
behalf also informed the Court that he was get-
ting the tattoos removed. The Court, took an
undertaking from Lonekar that he will abide by
all rules concerning tattoos.
RemovetattoosforCISFjob
— Compiled by Prabir Biswas
The CBI pleaded for more time to
file its charge-sheet in the murder
of a Siwan-based journalist Rajdeo
Ranjan before the Supreme Court.
RJD strongman Mohammad Shaha-
buddin is one of the prime accused in
the case. The CBI informed the Court
that its probe was “at an advanced
stage” and wanted another two weeks
to file its report before the trial court.
The petitioner, Asha Ranjan, the
wife of the deceased journo wanted
an FIR lodged against Tej Pratap
Yadav, the son of Lalu Prasad Yadav,
and the SP of Siwan district. She
alleged that Tej Pratap’s picture had
appeared in the media along with a
sharpshooter who is considered an
aide of Shahabuddin, but the SP had
looked the other way.
The CBI informed the Court that
the issue would be dealt with once it
submitted its report.
CBI seeks more time
in Bihar journo’s
murder case
Slamming the Bihar government
and Patna High Court for not help-
ing a destitute HIV positive woman
from Patna to abort her fetus in time,
the Supreme Court asked it to pay
`10 lakh as compensation. The Court
ruled that the money be parked in a
fixed deposit in her name and she
could use the interest for her expens-
es. The woman had become pregnant
after being raped and wanted MTP as
the fetus could contract HIV but the
state government objected to her plea
in the Patna High Court, which also
did not grant permission. The Court
felt that by the time she approached it,
it was too late.
SC awards `10 lakh
to rape survivor
Deadline
for Haji Ali
beautification

Briefs
12 August 28, 2017
The centre has submitted a
report to a London court
about the security conditions in
Mumbai’s Arthur Road jail
where it is planning to lodge
liquor baron Vijay Mallya (61)
once he is extradited to India.
Mallya would be lodged in
Barrack 12, which was occu-
pied by 26/11 Pakistani terrorist
Ajmal Kasab. The government
report stated that the jail has all
measures for the safety of
Mallya. The 1925-built jail’s offi-
cial capacity is 804, but it hous-
es over 2,500 inmates. Mallya
is facing trial for money laun-
dering and banks are demand-
ing that he pay back more than
a billion dollars in loans.
Jail safe to house
Mallya: Govt
—Compiled by India Legal Team
Metroprivatisationpush
Hours ahead of India’s
70th Independence
Day, the Mamata Banerjee
government in West Ben-
gal issued “urgent” instru-
ctions to all schools and
educational institutions to
refrain from celebrating it
in the format prescribed
by the Union human re-
source development min-
istry. In July, the ministry
had issued directions to
all state education secre-
taries to organise quiz and
debate competitions, slo-
gan writing, marches, film
screenings and swachhta
pledges. West Bengal edu-
cation minister Partha
Chatterjee said the centre
has no right to instruct
states how to celebrate
Independence Day and
that “the people of Bengal
don’t need lessons on
patriotism from the BJP”.
Bengal defies
I-Day diktat
Bofors note in a month: MoD
The centre has asked
Facebook, Instagram
and other social media
platforms to remove links
to the game, Blue Whale
Challenge, which is being
held responsible for sever-
al young people taking
their own lives. In a no-
tice, copies of which were
sent to the ministry of
home affairs and the wo-
men and child develop-
ment ministry, the min-
istry of electronics and IT
has expressed con-
cerns over the ready
availability of the
game online. Those
promoting the game
will also be reported
to the police, the
notice said.
Ban on Blue Whale
Challenge
The Comptroller and
Auditor General has
invited the ministry of
defence to come and
scrutinise 30 volumes of
its files related to the
Bofors gun deal, defence
secretary Sanjay Mitra
has informed the Public
Accounts Committee.
The MoD has asked
for a month’s time to
submit to the PAC
“action taken” notes on
two paragraphs of the
CAG report. These two
paragraphs had high-
lighted irregularities in
the purchase of the how-
itzer field guns in 1986.
The CAG report was
made public in 1990 and
the notes are pending
action since then.
The central government has
now made it mandatory for
state governments seeking funds
for their proposed Metro rail
network to involve private play-
ers in executing and running the
projects. The new Metro Rail
Policy, approved by the cabinet,
aims to reduce the centre’s role
in funding Metro projects
through a push for privatisation.
But it has sparked fears of a
massive increase in fares of what
is one of the important modes of
public transport in some cities.
Significantly, the policy also
requires state governments to
explore commercial exploitation
of land along the rail project and
transit-oriented development,
which will lead to densification
of areas alongside it.

Required for the websites
EN Communications Pvt Ltd is a Noida-based news organisation which runs the
popular Hindi news television channel, APN News, and brings out a weekly magazine,
India Legal. As part of our expansion plans, we are looking for journalists and content
writers for our websites, APN News and India Legal, as well as for the magazine.
For India Legal Magazine
Two senior sub-editors for general copy
One senior sub-editor with an understanding of legal contents and issues relating to law and courts
Ten content writers for the web with 1-3 years’ experience.
Two content writers who can write on court and legal matters.
Two translators who can translate from Hindi to English and from English to Hindi.
Applicants must meet the following criteria:
Must be able to write simple, correct English
Should be able to edit, write and rewrite reports
Should be familiar with internet and able do some basic search/research on the web
Previous experience in media/social media will be a prime consideration
We are looking for young, dynamic media professionals who can perform under deadline pressures and possess the
multi-tasking skills required for today’s journalism. Writing and reporting original stories and copy, with a strong
emphasis on legal matters, will be the basic requirement. Experience in the use of social media will be an added
advantage.
Today’s journalists are required to come up with original ideas, report and research, and produce stories that are
impactful and also use the website and social media—Facebook, Twitter, etc—to expand the reach of the story.
We also require sub-editors who are able to edit copy to the magazine’s requirements and are proficient at proof
reading and spell checking.
For the positions available in India Legal magazine, a command of the English language is an essential requirement, as
is some experience of magazine production and a good understanding of social media.
Salaries are negotiable.
Applicants should send their CV’s to
Editor, India Legal
A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) 201309
Covering envelopes should be clearly marked Application for India Legal/Web Team
Or
Contact: hr@encnetwork.com

Lead/ Gorakhpur
TheGorakhpurtragedyhighlightsanalarmingriseinmedical
negligencecasesinIndia.Thedeathof100babiesisatragic
buttimelyreminderthatthegovernmentneedstoformulate
andimplementastrongerlawagainstmedicalmalpractice
By Punit Mishra
HERE is considerable iro-
ny in the fact that the in-
human tragedy which led
to the deaths of nearly 100
babies in a government
hospital last week, took
place in Gorakhpur, UP chief minister
Yogi Adityanath’s constituency. The
greater irony is that, as an MP in the
Opposition benches, Adityanath, on
multiple occasions, had raised questions
about the sorry state of healthcare in his
constituency, and had singled out BRD
Medical College in Gorakhpur, for spe-
cial mention (see box). It is the hospital
where, on August 11, 30 children died
due to alleged shortage of supply of liq-
uid oxygen. More children were des-
tined to die, but here’s the real tragedy—
the day Adityanath visited the hospital,
dead bodies of some babies were whis-
TDeath by
Negligence
14 August 28, 2017
Photos: UNI

pensing medicines. This was apart from
his cleaning duties and the additional
job of night guard.
RAMPANT PROBLEM
Uttar Pradesh may be extreme when it
comes to indifference towards the public
healthcare system, but it is evident in
other states as well, leading to thou-
sands of deaths each year. Dr Kunal
Saha, who was given the highest-ever
compensation in a medical negligence
case in India, said: “We not only need
separate laws for medical negligence
cases, but also new provisions in the
law so that people from poor socio-eco-
nomic backgrounds can fight medico-
legal cases on a 'contingency' basis as it
is in the US.’’
The court proceedings in Saha’s case,
involving the death of his wife in a Kol-
kata hospital, revealed how lightly med-
ical negligence is treated in India. One
indicator of that lies in the fact that th-
ere is still no central law to tackle med-
ical negligence. The much-vaunted
constitution did focus on the need to
improve the health of its citizens but
instead of treating health as a funda-
mental right, it was made into a Direc-
tive Principle. This basically means
that it becomes the responsibility of
the states.
Some states have passed what are
known as “customary laws” but these are
not strong enough to prevent tragedies
like Gorakhpur. The result is that India’s
healthcare is in a shambles. Moreover,
the unholy nexus between private play-
ers, suppliers of medical equipment and
government doctors and administrators
has become so strong that any hope of
efficiency and transparency or lack of
discrimination between those who can
pay and those in financial distress, is a
pipe dream.
While the centre, despite numerous
Gorakhpur-type tragedies, continues
ked out of the back door, so the chief
minister would be spared the most trag-
ic symbol of criminal negligence on the
part of the hospital authorities.
BRD College itself is a symbol of the
state of public healthcare in the country,
as exemplified by the bureaucratic bla-
me game and obfuscation over oxygen
cylinders and the suppliers. Expectedly,
an inquiry committee has been set up to
probe the lapses, and equally expectedly,
the tragedy and proof of medical negli-
gence will be whisked under the carpet.
What Gorakhpur showed was that bur-
eaucratic indifference, corruption, ad-
ministrative failure, are all factors that
lead to medical negligence, with no sign
of governments or the courts taking a
tough stand and pushing for stronger
laws and stricter punishment.
Indeed, an investigation by APN
news channel after the Gorakhpur inci-
dent revealed that the reason for the rise
in medical negligence was largely due to
the UP government’s lack of infrastruc-
tural support:
Due to stoppage of 102 and 108 ambu-
lance services in UP’s Bahraich district,
pregnant women faced a life-threaten-
ing situation. Some were ferried to dis-
tant hospitals by rickshaws or on motor-
cycles, adding to delays and risk to life
of the child or mother.
In a Kanpur government hospital—
Murari Lal Chest Hospital—a patient
named Pushpa was thrown out as her
brother refused to give in to the dem-
ands of the hospital authorities. Pushpa
was in a critical state and is now is fight-
ing for her life.
In the Community Health Centre,
Bansdih (Ballia), APN reported that the
hospital was operating without doctors.
Doctors rarely visited the hospital and
even if they did, there was no time-
table. In the absence of doctors, phar-
macists were found operating on pat-
ients. The toilets were unusable and
medicines were kept in a disorganised
manner. The X-ray room did not have
electricity, or even a door.
More shocking, in Miva’s Primary
Health Centre in Meerut, a sweeper was
found donning a doctor’s coat and dis-
BUNDLE OF SORROW: (Facing page)
Relatives carry the body of a child who died
in Gorakhpur’s BRD hospital; candlelight
march in Lucknow for the departed souls
Thereisverylittlechanceofthe
Gorakhpurdoctorslosingtheirjobs.
Sofar,thecourtshaveensuredthat
doctorsdonotlosetheirlicenseto
practiseduetohumanerror.

to avoid any responsibility, the medical
profession in India has largely been ru-
led by legislation, which is where the
problem lies. The Indian Penal Code,
1860 (sections 52, 83, 88, 90, 80, 81, 91,
92, 304-A, 337 and 338) governs laws
on medical negligence in India. The
term “negligence” on the part of medical
professionals has been variously defined
in the courts.
NEGLIGENCE DEFINED
In Jacob Mathew vs State Of Punjab &
Anr, the Supreme Court inferred:
“Negligence in the context of medical
profession necessarily calls for a treat-
ment with a difference. To infer rashness
or negligence on the part of a profes-
sional, in particular a doctor, additional
considerations apply. A case of occupa-
tional negligence is different from one of
professional negligence.”
The apex court then went on to state:
“A simple lack of care, an error of judg-
ment or an accident is not proof of neg-
ligence on the part of a medical profes-
sional. So long as a doctor follows a
practice acceptable to the medical pro-
fession of that day, he cannot be held
liable for negligence merely because a
better alternative course or method of
treatment was also available or simply
because a more skilled doctor would
not have chosen to follow or resort to
that practice or procedure which the
accused followed.’’
For determining medical negligence,
the apex court generally refers to
Bolam’s case [1957]. This is an English
tort law that lays down the typical rule
for assessing the appropriate standard
of reasonable care in medical negligence
cases involving doctors. It is called the
Bolam test and lays down standards
which must be in accordance with a
responsible body of opinion, even if oth-
ers differ on it. In other words, the Bol-
am test states that “if a doctor reaches
the standard of a responsible body of
medical opinion, he is not negligent”.
Bolam’s case holds good in its applica-
bility in India, the Supreme Court noted
in the Jacob Mathew vs State Of Punjab
& Anr case.
Specifying the criminal and civil pro-
secution under medical negligence
cased, the apex court stated: “The juris-
prudential concept of negligence differs
in civil and criminal law. What may be
negligence in civil law may not nece-
ssarily be negligence in criminal law.
For an act to amount to criminal negli-
gence, the degree of negligence should
be of a very high degree. Negligence
U
P Chief Minister Yogi Adityanath
keeps blaming the spread of
encephalitis (which claimed
the lives of close to 100 children in
Gorakhpur) on lack of cleanliness. “The
cure of diseases such as encephalitis is
hidden in the Swachh Bharat Mission.
I been saying this repeatedly as I repre-
sent eastern UP.”
Here’s the catch. The five-time MP
from Gorakhpur has been criticising suc-
cessive state governments in UP for its
failure to contain the scourge of the
encephalitis while he was in the Oppo-
sition. He specifically mentioned inade-
quacy of infrastructure at BRD Medical
College and Hospital, where the deaths
took place last week, while speaking in
the Lok Sabha as an MP.
On December 22, 2014, the MP drew
the attention of the Union Health Minister
to the spread of encephalitis in Uttar
Pradesh and asked what steps were
taken by the government in this regard.
“If something happens at the level of the
government of India, what is the machin-
ery of the state government doing?
This disease shows the severity of their
insensitivity. So far, more than 2,200
patients have been admitted in BRD
Medical College till now, in which 607
children have died till yesterday. In the
same medical college 607 children die
under one roof and no news is made, no
action at the state level?” Adityanath had
asked. Ironically, as chief minister, the
epidemic of encephalitis has spread,
and claimed the lives of nearly 100 chil-
dren in just 48 hours.
PotCallstheKettleBlack
Lead/ Gorakhpur
16 August 28, 2017

India, it is generally based on physical
factors, death or damage to organs,
limbs, etc.
There is also very little chance of the
Gorakhpur doctors losing their jobs. So
far, the courts have ensured that doctors
do not lose their license to practise bec-
ause of human error. As the apex court
noted in the Kunal Saha vs West Bengal
Medical Council and Ors case: “As jud-
ges we are humans. We also can commit
mistakes. If we are to order what you
(Kunal Saha) are demanding, what sig-
nal are we sending… for we do not know
whether they were actually negligent or
not? Only God knows whether they
were negligent.”
NO GUIDELINES
The Supreme Court has, however, taken
a strong view of the absence of laws in
tackling medical negligence cases. In Dr
Balram Prasad Vs Dr Kunal Saha & Ors,
the apex court said: “The central and
the state governments may consider
enacting laws wherever there is absence
of one for effective functioning of the
which is neither gross nor of a higher
degree may provide a ground for action
in civil law but cannot form the basis
for prosecution.”
REDRESSAL PLATFORMS
Currently, medical negligence cases are
tried by consumer courts as well as civil
courts. Patients and victims usually
approach the consumer forum for com-
pensation while some approach high
courts and the Supreme Court. Under
civil law, a petitioner can file a case und-
er the Consumer Protection Act, 1986.
In normal cases of medical negligence, if
the patient can establish that the doctor
was negligent and the injury was caused
due to that, then he shall be entitled for
compensation.
However, in the criminal negligence
cases, the negligence should be “gross”
in nature, endangering the life of the
patient. That brings in a great deal of
ambiguity. The definition of gross can
vary, as does the question of the doctor’s
skill and experience and who exactly
was negligent. In Gorakhpur, there are
still questions about the oxygen supplier,
the payments due to him, who was res-
ponsible for signing the cheques and
was the shortage of money attributed to
the hospital or to the state government.
Two doctors/ administrators have been
suspended, along with a third doctor
who actually did his best to save the
children. The fact that he is a Muslim
has added a communal element to the
tragedy and muddied the waters even
further. The evidence shows such critical
life-saving equipment like oxygen cylin-
ders was treated so casually and is
indicative of the state of public health-
care in India.
In fact, looking at Gorakhpur, the
IPC, and judgments in various courts, it
is difficult to see whether blame can be
fixed and justice served as far as the par-
ents of the dead children are concerned.
Section 304A of the IPC covers issues
like failure to take precautions. Again,
there is a distinction between what is
referred to as “the ordinary experience
of men’’. Even failure to use special or
extraordinary precautions which might
have prevented a particular happening,
says the IPC, cannot be the standard for
judging the alleged negligence.
Similarly, the law says that the stan-
dard of care will be judged in the light
of knowledge available at the time of the
incident, and not at the date of trial.
Also, when the charge of negligence ari-
ses out of failure to use some particular
equipment (as was the case in Gorakh-
pur), the charge would fail if the equip-
ment “was not generally available at that
particular time”.
Such ambiguity in law makes it even
harder to determine adequate compen-
sation. The Supreme Court has suggest-
ed a multiplier method to determine
compensation for medical negligence
victims. In the Dr Balram Prasad Vs Dr
Kunal Saha & Ors, the Supreme Court
noted that “in case of death of victims of
negligence, it would be important for
the courts to harmoniously construct
the aforesaid two principles to deter-
mine the amount of compensation und-
er the heads: expenses, special damages,
pain and suffering”. In the US, medical
negligence cases are heard by state cou-
rts where the jury generally gives huge
compensation to the patients for any
mental agony undergone by them. In
COME AT YOUR OWN RISK: APN news
channel highlighted the shortage of
ambulances, beds and other infrastructure
requirements in UP hospitals

You have petitioned for fast track courts.
Will a new legislation like the one in
West Bengal improve things?
It is nothing but noise in an empty ves-
sel. There is no mention of how long the
new Health Commission would take to
investigate complaints against doctors/
hospitals or whether the proceedings of
their investigation would be made public
or not. More importantly, this state Bill
has no provision to take any punitive
action against guilty doctors as it can
only take measures against private hos-
pitals. So our effort to have a fast-track
consumer court for medical negligence
cases is essential for equitable justice
for victims of medical malpractice.
Haryana has set up district-level medical
boards to decide complaints of medical
negligence against private and govern-
ment doctors and hospitals.
If these so-called medical boards in Har-
yana are made up solely of doctors
without any independent layman, it
would be just like a duplicate “medical
council”.
Your experience has shown how difficult
it is to fight a case against a reputed
doctor or hospital. What measures
can a patient from a low income back-
ground take to claim compensation in
such cases?
This is a million-dollar question. It is not
only the “low-income” group, but also
ordinary people and the upper income
group that find it virtually impossible to
fight a legal battle against powerful doc-
tors/ hospitals for justice. The problem
does not pertain only to the medical
community but to our justice deliv-
ery system which has inherent
flaws in it. This makes it excruciat-
ing for victims of alleged “medical
negligence” to carry on a legal fight
against powerful medicos. The delays
are largely due to lack of adequate
number of judges and also unscrupu-
lous advocates who take repeated
adjournments for financial gain.
Does India need a separate law to tack-
le these cases?
India not only needs separate laws for
medical negligence cases, it also needs
new provisions in the law so that people
from poor socio-economic backgrounds
can fight medico-legal cases on a “con-
tingency” basis with a written agreement
between them and the lawyers, just as it
is in the US. There, the lawyer fights the
case for free, but if the client wins, he
gets 25 percent of the compensation
amount. This will help reduce the ram-
pant incidence of “medical negligence”
in India and go a long way to save inno-
cent lives.
private hospitals and nursing homes.
Since the conduct of doctors is already
regulated by the Medical Council of
India, we hope and trust for impartial
and strict scrutiny from the body… so as
to avoid tragedies where a valuable life
could have been saved with a little more
awareness and wisdom from the part of
the doctors and the Hospital.” In August
2016, the Supreme Court issued notices
to the centre, Medical Council of India
and all state health secretaries to submit
affidavits on standard operating proce-
dures for treatment of patients in ICUs
and CCUs (Critical Care Unit).
STATES UP THE ANTE
Various states have also enacted laws
and issued guidelines, but mostly to do
with private practice. In March 2017,
West Bengal enacted the West Bengal
Clinical Establishments (Registration,
Regulation and Transparency) Act, 2017.
The Act, in case of death of patients due
to medical negligence, mandates three-
year jail terms and trials under the IPC
for offenders and fines up to `50 lakh.
The Act covers nursing homes, private
hospitals, clinics, dispensaries and poly-
clinics under its ambit, while excluding
government hospitals and dispensaries.
Haryana has been more progressive.
It has set up district-level medical
boards to decide complaints of medical
negligence against private or govern-
ment doctors or hospitals.
The bottomline is that medical negli-
gence does not get the kind of serious
attention it deserves from the centre or
the states. What is needed is a move-
ment to ensure that the centre and
parliament look at the issue afresh, as
a Right to Health issue. It needs an
amendment in the constitution which
establishes that all humans, regardless
of economic background, have an equal
right to health.
—With inputs from Rajesh Kumar
Lead/ Gorakhpur
In 2013, DR KUNAL SAHA secured the highest-ever compensation—
`5.96 crore—in a medical negligence case which had led to the death of his
wife, Anuradha. He now heads an NGO, People for Better Treatment, and
submitted a memorandum to the National Consumer Disputes Redressal
Commission (NCDRC), asking for fast-track courts for such cases.
PUNIT MISHRA met him for an exclusive interview. Excerpts:
“Indianeedsseparatelawsformedical
negligencecases”
18 August 28, 2017

Profile/ Justice Dipak Misra
20 August 28, 2017
USTICE Dipak Misra will be
sworn in as the 45th Chief Jus-
tice of India (CJI) on August 27.
A pro-citizen judge known for
his bold judgments, he was born
on October 3, 1953, and is a
nephew of Justice Ranganath Misra
who was the Chief Justice of India from
September 1990 to November 1991.
Justice Misra was born into an illus-
trious family and made a handsome
contribution to judiciary as well as pub-
lic service. Enrolled as an advocate at
the Bar on February 14, 1977, he started
his career practising in constitutional,
civil, criminal, revenue, service and sales
tax matters in the Orissa High Court
and tribunals before being elevated to
the High Court bench.
Appointed as an additional judge of
the Orissa High Court in 1996, Justice
Misra was transferred the following year
to the Madhya Pradesh High Court,
where he was made a Permanent Judge
on December 19, 1997. In December
2009, he was appointed Chief Justice of
the Patna High Court and served until
May 2010, when he was appointed Chief
Justice of the Delhi High Court.
He was elevated to the Supreme
J
STELLAR CAREER
During his 20-year stint on the
Bench, Justice Misra has passed
some path-breaking verdicts
AJudgewith
StrongConviction
WithJusticeMisrabeingdesignatedthechiefjusticeofIndia,upgradationoflegalservices
anddispensationofjusticetothehave-notswillbetheorderoftheday
By Rupinder Suri
symlaw.ac

Court on October 10, 2011. He perfor-
med his service honestly for almost
seven years. He is the man behind
“Legal Assistance Establishments” or
Nyaya Sanyog, which caters to poor liti-
gants and families of those undertrials
who are languishing in jails so that they
get quick access to justice. He has alw-
ays shown a concern for providing
speedy and qualitative justice for the
poor, the downtrodden and weaker sec-
tions of society.
CONTRIBUTIONS
Present Chief Justice JS Khehar and he
have had perfect understanding and
they have moved in unison for upgrada-
tion of the judiciary. During the last
one year, perhaps more judges have
been appointed in high courts and the
Supreme Court than in any previous
year. This was achieved in spite of the
fact that the vires of National Judicial
Appointments Commission Act, 2014
was declared bad in law by the Sup-
reme Court.
One of his landmark judgments was
In Court on its own motion vs State,
wherein he held that FIRs should be
uploaded on the Delhi Police website
within 24 hours of their lodging so that
the accused can download the same and
file appropriate applications before the
Court for redressal of grievances.
Justice Misra is a man of impeccable
character. Above all, he is a fine human
being. He is an outstanding judge, com-
plete in all respects. I have witnessed
many a time when he would encourage
young lawyers to argue confidently in
court. His administrative qualities are
superb as well. He is a polite and a
well-mannered judge but with a strong
sense of conviction, especially while
February 14, 1977:
Started out as an advocate (prac-
tised constitutional, civil, criminal,
revenue, service and sales tax matters
in the Orissa High Court and the
Service Tribunal)
January 17, 1996:
Appointed as additional judge of the
Orissa High Court
March 3, 1997:
Transferred to Madhya Pradesh
High Court
December 19, 1997:
Appointed as a permanent judge in
the Madhya Pradesh High Court
December 23, 2009:
Assumed office as Chief Justice of
Patna High Court
May 24, 2010:
Appointed as the Chief Justice of
the Delhi High Court
October 10, 2011:
Elevated as judge of the Supreme
Court
August 28, 2017:
Will assume office as the 45th Chief
Justice of India
MarchtotheTop
July 1, 2015: No compromise mar-
riages in rape cases: A Supreme
Court Bench headed by Justice Dipak
Misra said that any compromise
promising wedlock between a rape
accused and the victim compromises
the dignity of the woman.
July 2015: Justice Misra was
among three judges who were up all
night in a historic hearing to decide
Yakub Memon’s last-minute appeal
against his hanging for the 1993
Mumbai blasts. At 5 am on July 30, it
was Justice Misra who announced
the Court's decision: “Stay of death
warrant would be a travesty of justice.
The plea is dismissed.” Memon was
hanged two hours later.
May 13, 2016: Criminal Defamation
law not unconstitutional (Subraman-
ian Swamy vs Union of India): The
Bench comprising of Justices Dipak
Misra and PC Pant held that the Right
to Life under Article 21 includes right
to reputation. The Bench dismissed
the petitions filed by Swamy, Rahul
Gandhi and Arvind Kejriwal challeng-
ing the law relating to criminal
defamation in India.
July 13, 2016: A constitution bench
unanimously quashed Arunachal
Pradesh governor JP Rajkhowa's
decision to advance the assembly
session from January 14, 2016. The
Bench, in three separate judgments
by Justices Khehar, Dipak Misra and
Madan B Lokur, paved the way for the
return of Congress-led Nabam Tuki
government to power.
November 30, 2016: A Supreme
Court bench of Justices Dipak Misra
and Amitava Roy made it mandatory
for all cinema theatres to play the
national anthem before a movie, dur-
ing which the national flag is to be
shown on the screen.
May 5, 2017: Justice Dipak Misra
led the bench that confirmed death to
four convicts in the Nirbhaya gang-
rape case of 2012. The verdict was
welcomed with spontaneous
applause in the visitors’ gallery.
—By Rajesh Kumar
Landmarkjudgments
Chief Justice of India designate Justice Dipak Misra was born on October
3, 1953. He is the grandson of acclaimed Oriya poet, Pandit Godabarish
Misra, and nephew of Justice Ranganath Misra— the 21st CJI. Known to
be soft-spoken, Justice Dipak Misra’s 21-year tenure as a judge has been
marked by several key judgments. He has also courted controversy. A case
is pending against him in the Orissa High Court since his lawyer days.
Journalist Jayant Kumar Das had alleged that he had acquired land
meant for the landless by submitting fake documents. Justice Misra’s
name also finds mention in the 60-page suicide note penned by former
Arunachal Pradesh CM, Kalikho Pul, alleging corruption in the judiciary.
Here in a nutshell is Jutsice Dipak Misra’s march to the top
job in the Apex Court:

at the cross-roads and facing dilemmas.
He has shown vision with remark-
able clarity of thought and ideas. His
ability to understand an issue and
resolve the dispute is unparalleled. He
also headed a three-judge bench which
upheld the Delhi High Court's verdict
sentencing to death four convicts
of the December 16 gangrape-cum-
murder case in Delhi and also held
special hearings on Saturdays for
it. “The “brutal, barbaric and dia-
bolic nature” of the crime could
create a “tsunami of shock” to
destroy a civilised society, said the
verdict penned by Justice Misra.
He also headed the bench
which, in an unprecedented pre-
dawn hearing in 2015, rejected
last-ditch efforts by Yakub Memon to
get his execution stayed. He is also str-
ict about frivolous litigation. He rejected
one such petition that objected to the
title of the film, Dhobi Ghat.
It will be difficult to write about his
persona in few lines. He is definitely a
man who works with passion, commit-
ment, sincerity and honesty. There is
hope of the further march of the judici-
ary under the leadership of Justice
Dipak Misra. This will be even while
ensuring the highest standards of ethics,
probity and dispensation of justice to
the have nots, the weak and the poor
and also for the welfare of women and
minorities. The Bar is sure that the rela-
tions between it and the Bench would
strengthen further during his tenure.
The Indian judiciary will be in safe
hands as Justice Misra will make sure
that the ideals of the constitution are
upheld.
—The writer is President, Supreme
Court Bar Association of India
22 August 28, 2017
JusticeDipakMisra
workswithpassion,
commitmentand
honesty.Thereishope
ofthefurthermarch
ofthejudiciaryunder
hisleadership.
—RupinderSuri,
President,SCBA
TheNextinLine...ThesefivejudgeswillbefuturechiefjusticesofIndiaifthesenioritytraditionisfollowed
Born to former Assam CM KC
Gogoi, Ranjan Gogoi joined
the Bar in 1978. He practised
at Gauhati High Court before
being appointed permanent
judge of the same court on
February 28, 2001. He was
later transferred to Punjab &
Haryana High Court on
September 9, 2010. He
became a Supreme Court
judge on April 23, 2012. After
Justice Dipak Misra, he is the
senior-most judge to take
over as CJI and his tenure will
begin in October 2018.
Retirement date: November
17, 2019
Major judgments:
Allowing women to be manager of a joint family
Banning politicians’ photographs in government ads
Terming Jat reservation as unconstitutional
“Asajudge,chiefjusticeandjudgeofthe
SupremeCourt,JusticeRanjanGogoihasshown
impeccableintegrityandlegalacumen.Hisjudg-
mentonillegalironoremininginKarnatakaand
Goaisatrend-setter.Incancellingallthelicenses
ofthosedoingillegalminingand committing
fraudonthestateexchequer,thejudgment
restoredthesaidminingareatothestate.During
thetenureofJusticeDipakMisraandinfuture
duringJusticeGogoi’stenureasCJI,wewillwit-
nessmanychangestorevampthesluggishjustice
deliverysystem.”
--JusticeKSreedharRao,formeractingchiefjus-
ticeoftheKarnatakaandGauhatiHighCourt
1.JusticeRanjanGogoi (DoBNovember18,1954)

Born to Arvind Shrinivas Bobde, a
former advocate general of Maha-
rashtra, he enrolled with the Bar Co-
uncil of Maharashtra in 1978. He was
elevated as additional judge to this
High Court in March 2000. In 2012,
he was made chief justice of the MP
High Court and in April 2013, was
made a judge of the Supreme Court.
Retirement date: April 23, 2021
Major judgments:
Permiting abortion of 25-week-old
fetus with neurological disorder
Staying BCI notification regarding
age bar for studying law
3.NuthalapatiVenkataRamana
(DoB:August27,1957)
Born into an agricultural family in Andhra
Pradesh, he started his legal career in 1983.
He is an expert on constitutional, criminal,
service and inter-state river laws. He has
been additional standing counsel for the
centre and additional advocate general of
Andhra Pradesh. He was chief justice of the
Delhi High Court and acting chief justice of
the Andhra Pradesh High Court.
Retirement date: August 26, 2022.
Major judgments:
Verdict on women managing joint family
Upholding the principle of “relevant
turnover” for determination of penalties in
competition law contraventions
2.JusticeSharadArvindBobde
(DoBApril24,1956)
“IhaveknownJusticeRamanafromhiscollege
daysatNagarjunaUniversityinAP.Heisoneofthe
legalluminariesofIndiaandhascarvedanichefor
himselfinthisfieldwithhissoundknowledgeof
lawandcommandoveradvocacy.Arichand
variedexperienceasalawyerindifferentcourts
makeshimasuitablecandidateforchiefjustice
ofIndiainfuture.AsafellowAndhraite,Ifeelproudtohaveknownhimper-
sonally.Thejudiciaryandthelegalfraternitywillimmenselybenefitfrom
hisacumen.”
—ProfYCSimhadri,formerV-CofBHUandotheruniversities,andanadvocatein
theSupremeCourt
Son of criminal lawyer UR Lalit, UU Lalit joined the Bar in 1983
and commenced his practice in the Supreme Court in 1986. He
was designated a senior counsel in April 2004. He was Amit
Shah’s lawyer in the fake encounter cases of Sohrabuddin Sheikh
and Tulsiram Prajapati, and was special prosecutor for the CBI in
the 2G Spectrum case. He became a Supreme Court judge in
August 2014.
Retirement: In November 8, 2022
Major judgments:
Misuse of 498A of the IPC in dowry cases
Ending impunity for the Armed Forces
Member of the five-judge bench on Triple Talaq
4.UdayUmeshLalit (DoB:November9,1957)

24 August 28, 2017
5.DhananjayaYChandrachud(DoB:November11,1959)
Son of India’s longest-serving chief justice, YV Chandrachud, Dhananjaya
Y Chandrachud did his LLB from Delhi University in 1982, LLM from Harvard
University on an Inlaks Scholarship in 1983 and Doctorate of Juridical
Sciences from Harvard in 1986. He practised law at Bombay High Court and
the Supreme Court, and was designated additional solicitor general of India
in 1998. In March 2000, he became a judge of the Bombay High Court and
in October 2013, chief justice of the Allahabad High Court. In May 2016, he
was appointed a judge of the Supreme Court.
Retirement date: November 10, 2024
Major judgments:
Rap on the knuckles to BCCI for trying to mislead the Court
Directing the government to formulate a national policy on drug abuse
Sl. No.
Name of the judge
S/Shri Justice
Date of
appointment
Date of
Retirement
Parent High Court
1 Jagdish Singh Khehar 13/09/2011 27/08/2017 Punjab & Haryana
2 Dipak Misra 10/10/2011 02/10/2018 Orissa
3 Jasti Chelameswar 10/10/2011 22/06/2018 Andhra Pradesh
4 Ranjan Gogoi 23/04/2012 17/11/2019 Gauhati
5 Madan Bhimarao Lokur 04/06/2012 30/12/2018 Delhi
6 Pinaki Chandra Ghose 08/03/2013 27/05/2017 Calcutta
7 Kurian Joseph 08/03/2013 29/11/2018 Kerala
8 Arjan Kumar Sikri 12/04/2013 06/03/2019 Delhi
9 Sharad Arvind Bobde 12/04/2013 23/04/2021 Bombay
10 Rajesh Kumar Agrawal 17/02/2014 04/05/2018 Allahabad
11 Nuthalapati Venkata Ramana 17/02/2014 26/08/2022 Andhra Pradesh
12 Arun Kumar Mishra 07/07/2014 02/09/2020 Madhya Pradesh
13 Adarsh Kumar Goel 07/07/2014 06/07/2018 Punjab & Haryana
14 Rohinton Fali Nariman 07/07/2014 12/08/2021 BAR
15 Abhay Manohar Sapre 13/08/2014 27/08/2019 Madhya Pradesh
16 R Banumathi 13/08/2014 19/07/2020 Madras
17 Prafulla Chandra Pant 13/08/2014 29/08/2017 Uttarakhand
18 Uday Umesh Lalit 13/08/2014 08/11/2022 BAR
19 Amitava Roy 27/02/2015 28/02/2018 Gauhati
20 Ajay Manikrao Khanwilkar 13/05/2016 29/07/2022 Bombay
21 Dr Dhananjaya Y Chandrachud 13/05/2016 10/11/2024 Bombay
22 Ashok Bhushan 13/05/2016 04/07/2021 Allahabad
23 Lavu Nageswara Rao 13/05/2016 07/06/2022 BAR
24 Sanjay Kishan Kaul 17/02/2017 25/12/2023 Delhi
25 SM Mallikarjunagouda 17/02/2017 04/05/2023 Karnataka
SCJudges—TheirAppointmentDate
Source: Doj.gov.in

Event/ I-day Celebrations
NDEPENDENCE Day celebrations
in the Supreme Court saw an ex-
change of conflicting views between
Chief Justice of India JS Khehar
and Supreme Court Bar Association
President RS Suri.
The event was organised by the
Supreme Court Bar Association and was
attended by Law Minister Ravi Shankar
Prasad, Attorney General KK Venugopal
and other officials.
Suri, in his address, raised questions
over the kith and kin of judges being
appointed in various panels—an allega-
tion refuted by the CJI. Suri also raised
concerns about other capable people not
being able to reach any top position in
the judiciary due to the existing lobby-
ing and nepotism.
Justice Khehar responded saying
that what appears as a misuse of author-
ity may not be so. He recalled waking up
to the news of his son being appointed
on a government panel a few months
back. He asked his son if this was true,
whereupon he said it was some other
Khehar being referred to. The CJI said
that the children of judges are also
capable and if they have the caliber,
there is nothing wrong in appointing
them as judges.
He said everyone has the opportunity
to climb to the topmost constitutional
posts in India. “We have an agricultural-
ist as our vice-president who started his
political career by pasting party posters.
We have a prime minister who used to
be a tea vendor at one point,” said
Justice Khehar.
He also revealed that he was born a
Kenyan citizen but once he got the citi-
zenship of India, he was as equal as any-
one else with equal opportunities. This
is what citizenship or independence
means. “The freedom to all to achieve
their hopes, ambitions, desires,” he said.
Justice Khehar said every citizen
should be proud of his religion and eth-
nicity and “proud of being an Indian
as that is what the Constitution is all
about”. He said that all people are eq-
ual as no one is “superior nor inferior”
to anyone.
Ravi Shankar Prasad attributed
India’s secularism to its heritage. He
said that India not becoming a theocra-
cy is one of the biggest achievements of
its independence. “I hold a very firm
view that India is not secular because
the constitution says so. The word ‘secu-
larism’ was added to the Preamble only
during Emergency. India is secular
because India’s heritage is secular. That
flows from the great Rig Veda,” he said.
KK Venugopal, in his maiden speech
as the Attorney General of India, said
poverty is the country’s biggest chal-
lenge and that Independence is not only
for the better off but also for the dep-
rived. He emphasised the importance of
the Legislature, Executive and Judiciary
which had worked together for the inde-
pendence of the deprived.
Be Proud to be
an Indian: CJI
Everycitizenshouldtakeprideinhisreligionandethnicityand
allpeopleareequal,assertsJusticeJSKhehar
By India Legal Bureau
I
EQUAL OPPORTUNITIES: Justice JS Khehar
said that despite being born a Kenyan, he has
got all rights after getting Indian citizenship
UNI

Supreme Court/ Hadiya Case
26 August 28, 2017
After her father Ashokan went to the
Kerala High Court with a habeas cor-
pus, she was produced in court by an
organisation named Sathya Sarani, bas-
ed in Manjeri. On May 25, a divisional
bench of the High Court delivered a
judgment annulling the marriage and
calling it a “sham”. The Court also dir-
ected her to return home to her parents.
The Court’s decision has been
Unholy Wedlock?
WiththecourthandingoverthecasetoNIA,therearelargerimplicationstonational
securityandthedisappearanceofwomenfromKeralatoareascontrolledbytheIS
By Naveen Nair in Thiruvananthapuram
HE case of Hadiya, a 24-year-
old Hindu girl who converted
to Islam and married Shafin
Jahan, a Muslim man, with-
out the knowledge of her par-
ents, has taken on larger
implications. As the marriage was
annulled by the Kerala High Court in
May, Jahan went to the Supreme Court.
And on August 16, the apex court
handed over the probe to the National
Investigation Agency (NIA), thereby
converting the right of a woman to live
with a man into one of national security.
A bench compromising Chief Justice JS
Khehar and Justice DY Chandrachud
said: “To ensure that the investigation
carried out by the National Investigation
Agency is fair, we consider it just and
appropriate to direct, that the NIA shall
carry out the said investigation under
the guidance of a retired Judge,’’ the
judgment said.
The NIA probe will be supervised by
former Supreme Court judge Justice RV
Raveendran. The Court order comes as
a slap on the face of the Kerala govern-
ment, whose police had been claiming
that the case was nothing but conver-
sion of a Hindu girl Akhila to Hadiya,
her adopted Muslim name.
HADIA’S STORY
On August 10, when the Supreme Court
directed the Kerala police to share pro-
be details with the NIA, it was perhaps
sending a signal that the marriage that
was annulled by the Kerala High Court
cannot be seen in isolation as news of
other conversions of Hindu and Chris-
tian girls to Islam and their sudden dis-
appearance to Syria was a cause of deep
T
worry. The bench told the lawyer of
Jahan: “The NIA is only a government
agency and not an external agency
which you can doubt. It is just like a
coin. No one can see each other and we
are here to decide on this.’’ With the
NIA taking up the case now, it will take
on larger proportions.
Hadiya was a homeopathy student in
Malappuram before she married Jahan.
Photos: shafinjahan.s/facebook

assigned to play the role of going
through a marriage ceremony.’’
The antecedents of Jahan did not
help their cause a bit. Jahan was a close
associate of Mansi Buraq, an IS opera-
tive arrested by the NIA in October
2016. The organisation, Sathya Sarani,
has cases against it in the High Court
and complaints from parents with the
State Human Rights Commission. The
parents allege that their wards had been
converted to Islam by the organisation,
who then use Muslim boys as alibis to
propagate their cause.
Ashokan said: “This is an organised
racket’s attempt to convert young girls
to Islam and take them somewhere else
and my daughter is a hapless victim.
She has been indoctrinated using
will eat, how she will
live her life and who
she likes and who she
will marry. In our
patriarchal society,
women of all commu-
nities change their
names, homes and
faith also after mar-
riage. Ordering a
woman to stay in the
custody of her parents or a nari niketan
is unacceptable and appalling. It’s tanta-
mount to imprisonment. This is a mur-
der of free will.”
Legal experts say the Court took such
a strong stand as it felt that the mar-
riage was solemnised at the last moment
to make a case for her to remain a
Muslim by a well-organised group.
The Kerala High Court order said:
“Akhila had no contact with Jahan in
the past and the marriage has been
brought about through a matrimonial
site. Her name was registered at the site
by the 7th respondent in the case. All
the above facts point to the existence of
an organizational set-up functioning
behind the scenes. It is clear that Shafin
Jahan is only a stooge who has been
decried by rights activists and a section
of the judiciary who labeled it as a clear
deviation of a major girl’s right to life
and marriage.
All India Majlis-e-Ittehad-ul Musli-
meen chief Asaduddin Owaisi, speaking
to news agency ANI, said: There is a
huge debate going on in the country—
women in Islam are not given the right
to take independent decisions. Where
are these voices now? You have a Mus-
lim woman, who is an adult, who has
taken a decision, what happens to that
independent decision? If tomorrow
someone converts to Islam or any reli-
gion, will that become a national secu-
rity issue.
Kavitha Krishnan, secretary of All
India Progressive Women’s Association
(AIPWA) told India Legal: “This is an
instance where the institution of judici-
ary is surrendering to a variant of fas-
cism. This is completely shocking. It is a
girl’s choice what she will wear, what she
Theapexcourthandedover
theprobetotheNIA,thus
convertingtherightofa
womantolivewithamaninto
oneofnationalsecurity.The
NIAprobewillbesupervised
byformerSCjudgeJustice
RVRaveendran.
CHOICE VS NATIONAL SECURITY
(Facing page) Doubts are being raised as to
why Akhila converted to Islam and married
Shafin Jahan; (below) a rally in support of the
married couple in Kerala

28 August 28, 2017
some terrible psychological measures.
Look at the background of the boy. How
can I allow my girl to go with him?’’
There are others who say that the
Court had enough apprehensions to
bring the NIA into the picture. “If you
read the initial verdict of the High
Court, you will know there is a definite
reason for it to take such a stand against
a marriage even though it is not the nor-
mal practice. This is not a simple case,
but involves many external characters
whose role needs to be probed further.
More such strategical marriages are tak-
ing place in Kerala, an indication that
there is an organised agenda behind it,’’
said Kerala High Court lawyer Kalees-
waram Raj to the media.
Meanwhile, what could be a silver
lining for Jahan is that the Supreme Co-
urt has decided to listen to Hadiya bef-
ore it takes a final decision on the mat-
ter. There would be an in-camera ses-
sion after the NIA probe is completed
and that could decide the final outcome.
TIP OF THE ICEBERG?
Reports from the Kerala High Court
suggest that Hadiya’s case is not an
exception. In fact, senior lawyers con-
firm that on an average, the Court has
been receiving close to 100 writ peti-
tions a month over the last few years
about youngsters disappearing and an
IS hand in it.
It was news of the disappearance of
21 youngsters from Kerala in July 2016
and later confirmation that they were in
IS-controlled Syria that blew the lid of
such cases. Nimisha was a student of
Century Dental College in Kasaragod,
where, allegedly under the influence of a
fellow Muslim student, she converted to
Islam. She then went on to marry Issa,
who was a Christian converted to Islam.
The police believe both of them were
part of the 21 who went missing.
Nimisha’s mother K Bindhu is incon-
solable today. As she stays in Thiruva-
nanthapuram in southern Kerala and
Nimisha studied at Kasaragod, a north-
ern part, she never had the slightest
inclination of what was going on. “I gave
a police complaint after my daughter
went missing in November 2015 but no-
thing has happened. Now they say she is
in Syria. Let her marry anyone, adopt
any religion she wants. But why should
she be taken away to Syria?’’ asked a
sobbing Bindhu. She is startled that
Nimisha married someone just four
days after meeting him. The police bel-
ieve that the same organisation which
was behind the conversion of Hadiya is
involved in this case too.
Another case is that of Aparna
Vijayan, 29, who, while studying Aero-
nautical Engineering at Jewel Education
Trust in Ernakulam, went missing for 15
days. When her mother Mini finally
found her, she was in Sathya Sarani wh-
ere she was reportedly taken by another
student to convert her to Islam.
The police say that in almost all the
cases that have come to its notice post
2015, there is a definite pattern of con-
version to Islam and then a frantic rush
to get a Muslim bridegroom. A senior
police officer told India Legal: “There is
a clear pattern, no doubt. In almost all
the cases that we have seen, the boys are
just stooges and have no relationship
with the girl, leave alone marriage. In
fact, there are complaints that the boys
simply disappear after marriage.’’
Also, for the first time, the Church
has openly acknowledged that its believ-
ers, especially girls, are under threat
from coerced conversion.
A section of the church has launched
a “Christian Helpline” group in Kochi
with the aim of stemming these conver-
sions. Father Jimmy Poochakatt, spo-
kesperson, Syro-Malabar Church, said:
“If the believers are concerned with such
a scenario, you cannot fault them. Tho-
ugh officially the Diocese has not taken
a stand on this issue, we are concerned.’’
All eyes will now be on the final out-
come of the NIA probe. Till then, Had-
iya will stay at home with her parents.
“Thisisanorganisedracket’s
attempttoconvertyounggirlsto
Islamandtakethemsomewhere
elseandmydaughterisa
haplessvictim….”
—Hadia’sfatherAshokan
LOSING HER RELIGION: Hadiya was
Akhila, a homeopathy student before she
converted to Islam and married Jahan
Supreme Court/ Hadiya Case

Supreme Court/ J&K’s Special Status
elaborate procedure laid down in Article
368 will have to be followed. With
regard to Jammu and Kashmir, a mere
executive order made by the President
under Article 370 would suffice.
Nanda concluded his Lok Sabha
intervention on Article 370 thus: “What
happens is that only the shell is there.
Article 370, whether you keep it or not,
has been completely emptied of its con-
tents. Nothing has been left in it.”
Noorani adds that it was denuded of
content by conscious executive acts on
the PM’s advice through one presiden-
tial order after another. Ironically, a
TheCourt’sdecisiontoexaminethevalidityof
Articles35Aand370oftheconstitution
whichhelptopreservetheuniquestatusof
thisstate,hasthepotentialtocreatetensions
By Venkatasubramanian
N December 4, 1964, for-
mer Union Home Minister
Gulzari Lal Nanda explain-
ed in the Lok Sabha: “The
only way of taking the Con-
stitution of India into Jam-
mu and Kashmir is through the applica-
tion of Article 370. It is a tunnel. It is
through this tunnel that a good deal of
traffic has already passed and more will.”
Jammu and Kashmir is the only state
which negotiated the terms of its mem-
bership with the Indian Union. The
Constituent Assembly of India which
adopted Article 370 only put the impri-
O
KASHMIRIS AND KASHMIRIYAT
(Right) Sheikh Mohammad Abdullah and
Jawaharlal Nehru; (above) Gulzari Lal Nanda,
who was the PM for two short periods
matur of its approval on October 17,
1949. It was after negotiating for five
months that the draft was agreed bet-
ween Prime Minister Jawaharlal Nehru
and his colleagues and the PM of Jam-
mu and Kashmir, Sheikh Mohammad
Abdullah and his colleagues. Article
370, in the words of eminent legal histo-
rian AG Noorani records a solemn com-
pact: “Neither side can amend or abro-
gate it unilaterally, except in accordance
with the terms of that provision.”
As for the rest of India, if a state’s
powers are to be curbed, and correspon-
dingly those of the Union enlarged, the
kashmirconnected.com
A Legal
Minefield

Supreme Court/ J&K’s Special Status
30 August 28, 2017
filed an application to recall the order
of dismissal, the Supreme Court granted
her liberty to move the High Court
under Article 226 of the constitution on
the same subject. That is how her peti-
tion came to be heard by the Delhi High
Court first.
Jha argued before the High Court
that the maximum life of Article 370
was prescribed upto the existence/con-
tinuance of the J&K Constituent
Assembly. She, therefore, claimed that
Article 370 ceased to exist.
During the hearing of the case, the
High Court was informed that a similar
petition, filed by one Bonded
Purushottam Yadav, in 2015 was also
dismissed by the Supreme Court on
October 31, 2015. The Delhi High Court,
while dismissing Jha’s petition, relied on
Supreme Court’s recent judgment in
State Bank of India v Santosh Gupta
and Another, [(2017) 2 SCC 538].
In this case, the Supreme Court com-
pared Article 370 with Article 369,
which too, like the former has a margin-
al note stating that it is a temporary
provision. Article 369 deals with tempo-
rary power of parliament to make laws
with respect to certain matters in the
State List as if they were matters in the
Concurrent List. However, unlike Article
370, Article 369 was limited in time to
five years from the commencement of
the constitution.
Noting that no such time limit is to
be found in Article 370, the Supreme
Court underlined sub-clause (3) of
Article 370 which makes it clear that
this Article shall cease to be operative
only from such date as the President
may by public notification declare. And
this cannot be done under the proviso to
Article 370(3) unless there is a recom-
mendation of the Constituent Assembly
of the state so to do, the Supreme court
had held in State Bank of India v
Santosh Gupta.
The Supreme Court, in this case, had
provision, which has been denuded of
its content, now faces a legal challenge
as to its validity in the Supreme Court.
CURRENT CHALLENGE
On August 8, the Supreme Court issued
notices to the centre and J&K, in an
appeal from a Delhi High Court judg-
ment, challenging the validity of Article
370. The appeal was filed by Kumari
Vijayalakshmi Jha and heard by a bench
of Chief Justice JS Khehar, and Justices
Adarsh Kumar Goel and DY Chandra-
chud. The Delhi High Court judgment
dismissing Jha’s petition was delivered
in April 2017.
Article 370 embodies six special
provisions. First, it exempted Jammu
and Kashmir from the provisions of the
Indian constitution. J&K was allowed
to have its own constitution. Second,
parliament’s legislative power over the
state was restricted to three subjects—
defence, foreign affairs and communica-
tions. The president could extend to the
state other provisions of the constitution
if they related to the matters specified in
the Instrument of Accession.
Thirdly, if other constitutional provi-
sions or other Union powers were to be
extended to Kashmir, the prior concur-
rence of the state government was
required. Fourth, concurrence had to be
ratified by the state’s Constituent
Assembly. Fifth, the state government’s
authority to give the concurrence lasts
only till its Constituent Assembly is con-
vened. Sixth, the president could make
an order with the recommendation of
the state’s Constituent Assembly.
Article 368 has a proviso which says
that no constitutional amendment shall
have effect in relation to the State of
Jammu and Kashmir unless applied by
order of the president under Article 370.
That requires the concurrence of the
state’s government and ratification by its
Constitutent Assembly.
In the case before the Supreme
Court, the petitioner seeks a declaration
from the Court that Article 370 is a tem-
porary provision which has lapsed with
the dissolution of the J&K Constituent
Assembly on January 26, 1957. She also
sought a declaration stating that the
constitution of Jammu and Kashmir is
void, inoperative and ultra vires.
PLEA FOR DISMISSAL
Interestingly, Jha’s earlier writ petition
filed in the Supreme Court, was
dismissed in limine in 2014. When she
EMPOWERED
Jammu and Kashmir is the only Indian state
to have its own constitution
Byagreeingtohearchallenges
tothevalidityofArticles
370and35A,theSupreme
Courtconsiderstheissue
judiciallymanageable.
UNI

also relied on another decision by the
constitution bench in Sampat Prakash v
the State of Jammu and Kashmir, in
1969. In Sampat Prakash, the Court
held that Article 370 was necessary to
empower the President of India to exer-
cise his discretion from time to time in
applying the Indian constitution. Thus,
it was reasoned that Article 370 would
necessarily have to be invoked every
time the President, with the state’s con-
currence, feels it necessary that amend-
ments to the constitution of India be
made applicable to J&K.
Further, the Supreme Court had also
held in that case that Article 370 would
cease to operate under sub-clause (3)
only when a recommendation is made
by the Constituent Assembly of the state
to that effect. Thus, the Court clearly
held that though the marginal note to
Article 370 refers to it as only a tempo-
rary provision, it is, in fact, in current
usage and will continue to be in force
until the specified event in sub-clause
(3) takes place.
It was further held by the Supreme
Court in the Sampat Prakash judgment
that Section 21 of the General Clauses
Act, 1897 was also applicable so that the
power under Article 370 could be used
from time to time to meet with varying
circumstances. These included the need
to amend or rescind any notifications,
orders or bye-laws so issued.
ARTICLE 35A
Another issue tagged by the Supreme
Court with Article 370 was that of
Article 35A. Article 35A empowers the
J&K legislature to define permanent
residents of the state. It was inserted
to the constitution through the Cons-
titution (Application to Jammu and
Kashmir) Order, 1954, issued by India’s
first president, Rajendra Prasad, on May
14, 1954, in exercise of the powers con-
ferred by clause (1) of Article 370.
The J&K constitution, which was
adopted on November 17, 1956, defined
a permanent resident as a person who
was born or settled in the state before
May 14, 1954, or who has been a resi-
dent of it for 10 years and has “lawfully
acquired” immovable property in the
state. Those with Permanent Residence
Certificates (PRC) have special rights
and privileges—in employment under
the state government, acquisition of
immovable property in the state and set-
tlement and right to scholarships, etc.
In 2014, We the Citizens, a Delhi-
based NGO, filed a PIL in the Supreme
Court seeking that Article 35A should
be declared unconstitutional because
it was inserted without any debate in
parliament. As the centre was not keen
to take a stand on the issue, the
Supreme Court has referred it to a
three-judge bench.
In July, the Supreme Court heard
another petition filed by two women,
Seema Razdan Bhargav and Dr Charu
Wali Khanna, both subjects of the state.
They told the Court on August 14 that
Article 35A is discriminatory because it
enables heirs of men from the state to
acquire PRC even if they marry women
outside the state, whereas the heirs of
J&K women marrying men from other
states lose their rights as permanent res-
idents. Both the petitioners, whose hus-
bands are from other states, have chal-
lenged Article 35A on the ground of vio-
lation of gender equality.
Khanna told the bench of Justices
Dipak Misra and AM Khanwilkar that
whereas she cannot get PRC due to her
husband being from outside the state,
former J&K CMs, Farooq Abdullah and
Omar Abdullah, are eligible to get PRCs
despite their spouses hailing from out-
side. The Supreme Court has tagged
their petitions with that of We the
Citizens so that the important issue
raised could be considered by a five-
judge constitution bench.
By agreeing to hear challenges to the
validity of Articles 370 and 35A of the
constitution, which help to preserve the
unique status of J&K in an Indian feder-
al set-up, the Supreme Court may indi-
cate that it considers the issue judicially
manageable, but its larger implications
may be only waiting to be unraveled.
Article368hasaproviso that
noconstitutionalamendment
shallhaveeffectinrelationto
J&Kunlessappliedbyorderofthe
presidentunderArticle370.
PUBLIC IRE
A protest in Ahmedabad over Article 370
shows it is an emotive issue across India
UNI

Courts/ Internet/ Madras High Court
32 August 28, 2017
substitute for John Doe but Ashok
Kumar has gained legal acceptability.
In cases of copyright infringement,
courts in India have been using Ashok
Kumar in the place of unnamed defen-
dants, to permit the plaintiff to enforce
an injunction order. The latest instance
is the Madras High Court issuing an
Ashok Kumar order on July 21 and
August 2 to block 2,650 websites, as an
interim measure against the infringe-
ment of copyright of certain films.
The suits for copyright infringement
were filed by Prakash Jha Films, in
respect of Lipstick Under My Burqa, as
well as by Red Chillies Entertainment,
Private Limited, Mumbai for its film,
Harry Met Sejal. Some 42 defendants
have been listed, besides eight unknown
persons named as Ashok Kumar.
An Ashok Kumar order is a response
to the likelihood that the rights of the
plaintiff may be infringed by persons
who may have the potential to do so.
The plaintiff, in this case, sought such
an order because those who have infr-
inged the copyright cannot be easily ide-
ntified because of their sheer numbers.
SEVERAL FLAWS
The Madras High Court’s order suffers
from several flaws, point out experts.
First and foremost, it has been passed
ex-parte, without hearing any of the
defendants. The Supreme Court, in
Ramrameshwari Devi and Others v
Nirmala Devi and Others, has laid down
guidelines in 2011 for the grant of ex-
parte orders. Among them is the requi-
rement that the courts should give short
notice to the defendants and hear them
Who is Ashok Kumar?
TherecentCourtorderblocking2,650portalsunderthegarbofapre-emptivestrikeagainst
piracy,leadstoconcernsaboutwiderpreventivecensorship
By Venkatasubramanian
OHN Doe is what they call a
placeholder name which refers to
objects or people whose names
are temporarily forgotten, irrele-
vant, or unknown in the context
in which they are being dis-
cussed. In the United States and
Canada, John Doe and its variations are
used in legal action and cases when the
true identity of a person is unknown or
must be withheld for legal reasons.
Ashok Kumar is the Indian equiva-
lent of John Doe. One does not know
how the name came to be used as a local
J
Amitava Sen

address disputes over blocking. As
explained by Divij Joshi in SpicyIP, the
well-known blog on IPR (intellectual
property rights) issues, founded by
Basheer, the legal basis for the Ashok
Kumar order is unclear. Section 52
(1)(b) of the Copyright Act exempts
“mere conduits”-- which includes ISPs--
from liability in respect of any infringe-
ment. But the courts have been using
their inherent power to request third
parties like the ISPs, to ensure that their
orders are effective.
before passing ex-parte interim orders.
Another apex court guideline is that
in an exceptional case, where the court
has to grant an ex-parte injunction, it
must record in the order that if the suit
is dismissed, the petitioner will have to
pay full restitution, actual or realistic
costs and mesne profits.
The guidelines also require the court
to dispose the application for injunction
as expeditiously as possible, preferably
as soon as the defendant appears in
court. The Supreme Court advocated
limiting the life of the ex-parte order for
a week so as to prevent the plaintiff
from benefitting by adopting dilatory
tactics, like seeking adjournments from
time to time. However, the Madras High
Court order gives relief to the plaintiff
pending disposal of the suit.
GOING OVERBROAD
Ironically, as has been pointed out by
experts, the Ashok Kumar order does
not offer any justification for the interim
order, that is, whether there is any bal-
ance of convenience in favour of block-
ing the websites, as against not doing so,
and whether the plaintiff has shown
irreparable injury if the offending web-
sites are not blocked immediately. The
expert view is that ex-parte orders,
issued only on the basis of the plaintiff’s
claim, are poorly reasoned, and are
legally vulnerable.
The Madras High Court’s blocking
order has been criticized for going over-
broad and being disproportionate,
because it directs Internet Service
Providers (ISPs) to block entire web-
sites, instead of specific, identified
URLs. Last year, the Bombay High
Court, while allowing the blocking of
certain verified links/pages instead of
the entire websites, had laid down cer-
tain safeguards for the protection of the
rights of the third parties, who might
have been adversely affected.
Among the safeguards was the proposal
to have a neutral third-party body, an
Ombudsman, which could verify indi-
vidual links and also deal more efficient-
ly with websites that have been blocked
inadvertently. Such a body, the experts
say, could be financed by content owners
and telecommunications providers
together, to rule out unilateral interests
getting dominance.
The idea of an Ombudsman was first
proposed by India’s Intellectual Property
guru, Professor Shamnad Basheer, to
COPYRIGHT INFRINGEMENT
A suit was filed by Lipstick Under My Burqa
and Harry Met Sejal which led to the blocking
of 2,650 websites

34 August 28, 2017
Joshi points out that ISPs are gener-
ally overbroad in their compliance with
copyright law, to avoid liability, as this
entails least economic costs. Therefore,
court orders requiring them to block
access to online content and services are
likely to be readily complied with.
Ironically, the producers of Lipstick
Under My Burqa benefitted from a pub-
licity campaign against censorship, but
did not find anything wrong in dem-
anding online censorship, alleging pro-
bable copyright infringement from pot-
ential defendants.
Internet Archives, the online library
of public domain works, was one of the
well-known sites which was blocked as a
result of the Madras High Court order.
It is one of the world’s largest reposito-
ries of legally free books, films, and
other historic archival content. It was
surprised that the plaintiffs thought it
might pirate their film in the future, and
sought its blocking.
UNFAIR CENSORSHIP
The website stated on August 9: “Even
beyond the fundamental and major
problems with pre-emptively blocking a
site for users’ submissions and content
of which it is unaware, there are serious
issues with these orders.” Internet
Archive revealed that it has a well-estab-
lished and standard procedure for rights
holders to submit “take down” requests
and processes them expeditiously.
There are several instances of take down
requests submitted by one of the plain-
tiffs, Red Chillies Entertainment,
throughout the past year, each of which
were processed and responded prompt-
ly, it disclosed.
After a preliminary review, Internet
Archive found no instance of it having
been contacted by anyone at all about
the films, whose copyright were alleged-
ly infringed in the Madras High Court’s
orders. “Is there a specific claim that
someone posted these films to
archive.org? If so, we’d be eager to
address it directly with the claimant,”
the website said.
Thirdly, it said Archive.org is includ-
ed along with thousands of other web-
sites in a list (entitled “Non-compliant
Sites”) to block for allegedly making av-
ailable the two films of concern. “The
only URL the list identifies pertaining to
us is https://archive.org. There are no
specific URLs for alleged locations of
films on the site, only the full domain.
Was there any attempt to exercise any
level of review or specificity beyond
“archive.org”, it asked.
The website commented as follows:
“All in all, this is a very worrying devel-
opment and is part of a harmful pattern
of governments increasingly taking web
content (and in many cases entire sites)
offline in unpredictable and excessive
ways. We have seen reports from schol-
ars and academics that this block has di-
srupted their work. We hope full access
to archive.org will be restored quickly.”
Past experience in blocking sites sug-
gests that courts pass such orders with-
out scrutiny, thus punishing even the in-
nocent. “Blocking access is very much
like cutting off the oxygen or blood sup-
ply”, said Justice Gautam Patel of Bomb-
ay High Court, while deciding a similar
case last year. Justice Patel is credited
with reigning in excesses characteristic
of such cases. He decided that the list of
134 pirate Dishoom URLs, compiled by
the plaintiff had to be verified in court,
and its accuracy confirmed via a sworn
affidavit. He also ensured that no legiti-
mate websites would be blocked.
Justice Patel had held that every pa-
ge blocked by an ISP under a court’s or-
der would have to include a notice on
the blocked page giving information
under what law, by which court and in
which case the link had been blocked.
Website owners should be allowed to
approach the courts to object to a
wrongful block, he held.
Hopefully, the Madras High Court’s
recent orders are not cited as preced-
ents by others.
Blockingisseenasawayof
paralysingonlinepiratedcontent
butsuchordershavenotbeen
implementedeffectivelyasper
court’sdirections
IMPROPER SOLUTION
Madras High Court has ordered blocking the
entire website instead of specific URLs
Courts/ Internet/ Madras High Court

India Legal 28 August 2017

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