India Legal 28 January 2019

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HE last thing that the Indian
Supreme Court needs right now is
yet another controversy that will be
used by opponents of an independ-
ent judiciary to cast aspersions on
its probity and integrity. But it
appears as if each time a fire is doused, another
conflagration is kindled. Ever since the virtually
open warfare broke out between the Executive
and the Judiciary over the validity of the Colle-
gium system for the promotion, transfer and ele-
vation of judges, there has been an uneasy truce
between these co-equal branches of our Rep-
ublican system of government.
The Supreme Court has stuck tenaciously to
the paradigm that no matter what the criticism of
the Collegium, comprising the five senior-most
justices, as a “private club” whose monopoly
should be busted through the induction of out-
siders into their decision-making in order to
avoid any suspicion of favouritism or nepotism, it
should be completely insulated from Executive
tampering which could lead to the politicisation
of the only institution empowered to uphold and
enforce the Constitution. To this end, the Court
threw out as unconstitutional legislation intro-
duced by the Modi government that would
have allowed Executive ingress into this
exclusive domain.
There followed several other crises, not the
least among them being open warring between
different benches, the mini-mutiny as expressed
in the unprecedented press conference led by four
senior judges, including current CJI Ranjan
Gogoi in which they expressed their dissatisfac-
tion with the selection process and assignment of
cases. This was followed by the ugly spectacle of a
politically-inspired impeachment motion against
former CJI Dipak Misra. Hardly had the dust set-
tled following Gogoi’s elevation to the top post
than the CBI leadership crisis hogged the front
pages. This was exacerbated by revelations that
Justice AK Sikri, who had been chosen by the CJI
to participate in the final adjudication process
concerning ousted CBI chief Alok Verma (who
had become a thorn in the side of the Modi gov-
ernment), had been offered a plum foreign post-
ing after his retirement—an offer that Justice
Sikri was forced to decline after the matter
became public.
And now, the Supreme Court is straddled with
yet another controversy following the out-of-turn
elevation of two judges. The question is not
whether the two honourable justices are qualified
and thoroughly competent. What is troubling is
that this whole matter has once again given
ammunition to adversaries of judicial independ-
ence who will use this as an example to cast
aspersions on the highest court of the land. They
will try and create doubts about the fairness of
the system in order to take political advantage in
pushing their own agendas at the expense of the
Court’s reputation.
Our cover story analyses what went wrong in
the selection process and why this would give
ammunition to those who would try and bring the
whole system into disrepute. To recap from this
story: “The New Year has meant key changes in
the Supreme Court in terms of two new judges
joining the Court on January 18. The chief justice
of Karnataka High Court, Dinesh Maheshwari,
and a judge of Delhi High Court, Justice Sanjiv
Khanna, were administered the oath of office by
the Chief Justice of India, Ranjan Gogoi, in his
Court, despite a raging controversy over the mer-
its of the Collegium’s recommendation to elevate
them, overlooking their lack of seniority over the
other eligible judges in the consideration zone.
The critics of the Collegium’s decision alleged that
while recommending these two judges for eleva-
tion to the Supreme Court, it simply ignored the
TROUBLING QUESTIONS
Inderjit Badhwar
Letter from the Editor
4 January 28, 2019
TheSupremeCourtisnowstraddledwithanothercontroversyfollowing
theout-of-turnelevationoftwojudges.Thequestionisnotwhetherthe
twojusticesarequalifiedandcompetent.Whatistroublingisthatthis
issuehasagaingivenammunitiontoadversariesofjudicialindependence
touseitasanexampletocastaspersionsonthetopcourt.
T

requirements of law and the established conven-
tions. Their grievance was that the Collegium
unjustly jettisoned its resolution adopted at its
December 12, 2018, meeting in which it recom-
mended the elevation of the Chief Justice of Delhi
High Court, Justice Rajendra Menon, and the
Chief Justice of Rajasthan High Court, Justice
Pradeep Nandrajog, to the Supreme Court. These
two judges were senior to Justices Maheshwari
and Khanna, and seniority being an important
criterion, it was pointed out, the Collegium ought
not to have ignored it.”
O
ur correspondent writes: “Conventions
and the procedure established by the
Supreme Court’s judgment in the Second
Judges case, the critics pointed out, require that
once the Collegium resolves to recommend judges
for appointment, the names are sent forthwith to
the government for processing. But the Collegium
which recommended certain names of judges in
its meeting on December 12 last year did not
ensure that its resolutions were uploaded on the
Supreme Court’s website, and formally sent to the
Centre for processing.”
The article further says: “The Collegium was of
the considered view that both Justices Mahesh-
wari and Khanna are more deserving and suitable
in all respects than other chief justices and senior
puisne judges of High Courts for being appointed
as judges of the Supreme Court of India.
“While recommending their names, the
Collegium claimed to have taken into considera-
tion their combined seniority on all-India basis of
chief justices and senior puisne judges of High
Courts, apart from their merit and integrity. The
Collegium also claimed to have kept in mind the
desirability of giving due representation on the
Bench of the Supreme Court, as far as possible, to
all the High Courts.”
Our legal analyst concludes in his piece that
critics are right in asking the CJI and the Colle-
gium members whether there is any strong and
cogent reason to justify a departure from the
order of seniority, as envisaged in the Supreme
Court’s judgment in the Second Judges case, and
if so, it must be shared with the public.
“But the CJI appears to have taken a stand
that disclosure of adverse material against a judge
serving in the High Court could compromise his
or her continuance as a High Court judge, and
therefore, should be better avoided. The reason is
convincing if there is supersession of one or two
judges, or when a need is felt to elevate a not so
senior judge to ensure geographical, social and
regional diversity. But when the list of superseded
judges in the all-India list of eligible High Court
judges is so huge, as in the present case, misgiv-
ings are bound to arise as to whether there are
strong and cogent reasons for departing from the
principle of seniority,” our story says.
It ends on a sobering note: “Questions contin-
ue to be asked a year after that (four-judge) press
conference whether the current CJI, Ranjan
Gogoi, who was part of that presser, has taken the
necessary systemic steps to inspire the confidence
of the public in the institution of the Court and
made it more transparent.”
| INDIA LEGAL | January 28, 2019 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Theadversariesofjudicialindependencewilltryandcreatedoubts
aboutthefairnessoftheCollegiumsystemintheSupremeCourtin
ordertotakepoliticaladvantageinpushingtheirownagendasatthe
expenseoftheCourt’sreputation.
Anil Shakya

ContentsVOLUME XII ISSUE11
JANUARY28,2019
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6 January 28, 2019
14Controversy over Collegium
The elevation of two judges to the Supreme Court after supersession of many high court
judges raises questions of propriety and whether established procedure was followed
LEAD
18Sway with Me
The Supreme Court has struck
down several provisions of a
Maharashtra law which
imposed unreasonable curbs
on the functioning of dance
bars in Mumbai
SUPREMECOURT
20A Matter of Right
By ruling that a person born of a void marriage is entitled to compassionate appointment, the
apex court has ensured the dignity of the family of an employee who died in harness

Teetering
on the Edge
REGULARS
Followuson
Facebook.com/indialegalmedia
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Illustration & Design:
ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
Delhi Durbar ...................12
Media Watch ..................49
Though British
Prime Minister
Theresa May has
narrowly won a no-
confidence vote,
she is under
pressure to find a
credible Plan B for
Brexit that will get
the support of
Parliament
46
Just Desserts
Dera Sacha Sauda
chief Gurmeet Ram
Rahim Singh has been
awarded a life sentence
for the murder of a
journalist. He is also
serving 20 years’
imprisonment for raping
two female devotees
28
Precarious Freedom
The Kerala High Court has quashed the premature release of 209
prisoners by the state governments citing procedural anomalies
GLOBALTRENDS
Muddled Mess
A longstanding financial dispute between Le Meridien hotel and New Delhi
Municipal Council threatens to change the fate of this luxury hotel
A Bridge Too Far
A flyover meant to ease Bengaluru’s traffic woes has run into
trouble as the Karnataka High Court has directed the Bengaluru
Development Authority to seek environmental clearance first
Trial by Gun
Rocky Mountain High
The Uttar Pradesh government’s
encounter policy has met with
widespread condemnation, forcing
the top court to examine a plea for
a court-monitored probe
The controversial Char Dham project in Uttarakhand has been
cleared by the top court despite ecological concerns
24
32
34
Endless
Agony 36
Justice SN Dhingra, who heads the SIT
looking into 186 cases linked to the
1984 anti-Sikh riots, says that the entire
state machinery, the government and
the judiciary failed the victims
INTERVIEW
22
Sacrosanct Rules
“Election silence” should be
extended to digital platforms and
social media and should be strictly
followed, says former Chief Election
Commissioner SY Quraishi
OPINION
30
40
COURTS
SPOTLIGHT
Future Perfect
Astrology as a science is growing in India and one of its foremost proponents is
KN Rao, former D-G of the Indian Audit and Accounts Service
44
PROFILE

8 January 28, 2019
“
RINGSIDE
“Right from the time
I came into politics
in 1996, I have been
saying that local mil-
itants are sons of the
soil and our maxi-
mum efforts should
be to save them
because they are
assets....”
—PDP chief Mehboo-
ba Mufti on why local
militants shouldn’t be
allowed to walk the
path of violence
“I am disappointed
to see that the pres-
ent-day BJP is no
longer following the
principles of the late
Vajpayeeji.”
—Former Arunachal
Pradesh Chief
Minister Gegong
Apang after resigning
from the party
“People of Assam
have been lucky to
have not been affect-
ed by the partition of
the country in 1947
on religious lines....
But all were not as
lucky as you.... But if
those who suffered
during Partition, if
they face religious
persecution, where
will they go?....”
—Ram Madhav, BJP
national general secre-
tary, on the need for
the Citizenship Bill
“For the first time, I
would like to make it
public that giving a
party post to Pra-
shant Kishor was
not entirely my deci-
sion. I got calls from
Amit Shah twice to
give him a post in
the party.”
—Bihar CM Nitish
Kumar on appoint-
ing Prashant Kishor
the number two in
the JD(U)
“If the news is true
that a charge sheet
has been filed, I
would like to thank
police and Modiji.
The filing of a
charge sheet after
three years, ahead of
elections, clearly
shows it to be politi-
cally motivated....”
—Former JNUSU
President Kanhaiya
Kumar on the sedi-
tion case against him
“If you’re Hindu be
Hindu, Muslim be
Muslim, Christian be
Christian. Why do
you want to convert
the whole world?”
—Home Minister
Rajnath Singh,
expressing his
concern over mass
conversion
“Virgin girl is like
sealed bottle or
sealed packet. Are
you willing to buy
broken seal while
purchasing a bottle
of cold drinks or a
packet of biscuits....
To most boys
virgin wife is like
angel.”
—Kanak Sarkar, a
Jadavpur University
professor, expressing
his opinion on virgin
brides, on Facebook
“In Supreme Court, we remember Justice
Sabharwal every day—be it reiteration of the
basic structure principle in IR Coelho’s case, the
push he has given to environmental jurispru-
dence in TN Godavarman (case), or the height to
which he had carried the power of judicial
review in Raja Ram Pal’s case.”
—Chief Justice of India Ranjan Gogoi, at the release
of a book on former CJI YK Sabharwal

The Supreme Court agreed to
hear a plea by Zakia Jafri
against the Special Investigation
Team (SIT)’s clean chit to then
Gujarat Chief Minister Narendra
Modi in connection with the
2002 Godhra riots. Zakia, the
wife of Ehsan Jafri, an ex-MP
who was killed in one of the
worst incidents during the riots,
had challenged the Gujarat High
Court’s 2017 order rejecting
her plea against the SIT’s deci-
sion. In February 2012, the SIT
had filed a closure report, giv-
ing a clean chit to Modi and 63
others, including senior govern-
ment officials, citing lack of
“prosecutable evidence”. The
apex court has ordered Zakia’s
plea to be listed for hearing
after four weeks.
Courts
—Compiled by India Legal Team
SC bans coal
transportation
Irked by the little headway made by the cen-
tre in appointing a Lokpal, the Supreme
Court asked the Lokpal search committee to
complete its deliberations and submit a panel
of shortlisted names by February 28. A
bench of Chief Justice of India Ranjan Gogoi
and Justices L Nageswara Rao and SK Kaul
also directed the centre to provide all infra-
structure and facilities to enable the commit-
tee to complete its task.
The eight-member search committee,
headed by former Supreme Court judge
Justice (retd) Ranjana Prakash Desai, was
constituted on September 27, 2018, but has
not met even once. The names suggested by
the committee will be vetted by a selection
committee comprising the prime minister,
Lok Sabha speaker, chief justice of India,
leader of opposition in the Lok Sabha and an
eminent jurist.
Taking serious note of the delay, the apex
court had, on January 4, asked the centre to
apprise it of the steps taken so far for app-
ointment of a Lokpal. The latest order comes
on a plea which sought initiation of contempt
proceedings against the centre for delaying
the appointment. The matter has been posted
for further hearing on March 7.
In a major setback for the BJP, the
Supreme Court refused to set
aside a division bench order of the
Calcutta High Court which had
denied permission to the party to
hold its rath yatras in West Bengal.
A bench led by CJI Ranjan Gogoi
said that it was within the preroga-
tive of the state government to
grant or refuse permission after
taking law and order issues into
consideration. The Court also said
that the apprehension of violence,
cited by the state government as
the reason for denial of permis-
sion, was not unfounded. It added
that the BJP can, however, hold
normal rallies with the approval of
the state government.
The Supreme Court reiter-
ated its direction to states
to select their Director Gen-
erals of Police (DGPs) from
a list of officers empanelled
by the Union Public Service
Commission (UPSC). It dis-
missed the pleas filed by
Punjab, Haryana, West
Bengal, Bihar and Kerala,
seeking a modification of its
July 3, 2018, order. On July
3 last year, the Supreme
Court had passed a slew of
directions on police reforms
and revamped the selection
process for DGPs. In their
pleas against this order, the
states had argued that the
police being an exclusive
state subject, they should be
allowed to choose their
DGPs through an internal
state committee rather than
the UPSC. A bench of Chief
Justice of India Ranjan
Gogoi and Justices L Nag-
eswara Rao and SK Kaul
didn’t find merit in this argu-
ment and said that the earlier
directions on selection and
appointment of DGPs were
issued in the larger public
interest and to protect police
officials from political
interference.
The Supreme Court banned the
transportation of extracted coal
lying at various sites in Meghalaya.
This order comes even as the
authorities have failed to rescue
the 15 miners trapped inside an
illegal rat-hole coal mine for over a
month. The order was passed by a
bench comprising Justices AK
Sikri and SA Nazeer who refused
the plea of miners to allow them to
transport the extracted coal at vari-
ous places. The bench issued
notices to the Meghalaya govern-
ment, the centre and others seek-
ing their response on various
issues connected with coal mining
in the state, and posted the matter
for further hearing on February 19.
States’ plea against DGP order
dismissed by apex court
No relief for BJP in
rath yatra case
SC to hear Zakia Jafri’s plea against SIT order
Finalise shortlist
for selection of
Lokpal, says SC

10 January 28, 2019
ISTHAT
Can a parent ask for maintenance from
his or her child or file an application
for maintenance against his or her
child?
According to the Maintenance and
Welfare of Parents and Senior Citizens
Act, 2007, a parent who is unable to
maintain himself or herself from his
own earnings or out of the property
owned by him or her, is entitled to
make an application under Section 5 of
the Act. However, such a claim
cannot be made against a minor child.
As per this Act, children are obliged to
maintain their parents and this
obligation extends to the needs of the
father or mother or both, as the case
may be, so that such parent may lead
a normal life. Apart from this Act,
remedy has also been provided under
Section 125 of the Code of Criminal
Procedure.
What requirements are to be fulfilled by a
person to be declared an indigent person
while filing a suit?
According to Order XXXIII Rule 1 of the
Code of Civil Procedure, 1908, a person is
considered indigent for the purpose of a
particular suit, if he or she does not pos-
sess sufficient means or funds (other than
the property which is the subject matter of
the suit) to enable him to pay the court fee
prescribed by law for the plaint in such
suit. If no fee is prescribed then the person
qualifies as indigent if he does not possess
property worth one thousand rupees other
than the property which is the subject mat-
ter of the suit.
If a person inherits or receives any
property during the pendency of the suit,
such property will be taken into account for
the purpose of calculation of his funds, and
accordingly, the court will declare whether
he or she qualifies as indigent or not.
Who Qualifies As An
Indigent Person?
—Compiled by Deepankar Malviya
Parents Can Claim Maintenance From Child
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What procedure should be followed if a
woman is harassed?
If a woman is harassed, the first step is to
file an FIR at the nearest police station. A
zero FIR can also be filed at any police
station which will send the information to
the jurisdictional police station. The police
cannot refuse to file an FIR in such cases,
but if they do so, the complainant can talk
to the SHO or the SP of the area or file a
private complaint before the magistrate.
Once an FIR is lodged, the police has
to promptly start the investigation and
send a report to the concerned magistrate
who is empowered to take cognisance of
the matter. The investigation is to be com-
pleted without undue delay. During the
investigation the investigating officer has
to maintain a case diary on its progress.
Once the investigation is completed, a
police report is filed along with the charge
sheet of which the magistrate takes cogni-
sance and the court case begins.
File An FIR In Sexual
Harassment Cases
?
What procedure should be followed by a
landlord if the tenant occupying his land
refuses to vacate it?
Once valid ground for eviction is established
by the landlord, the landlord must serve an
eviction notice to the tenant to vacate the
property. The notice must give the tenant
reasonable time to act on it. The eviction
notice is filed in the court with appropriate
jurisdiction. The court then sends the notice
to the tenant on behalf of the landlord.
The tenant may refuse to act on the
eviction notice and contest it in court. The
court in this case will be the court under
whose jurisdiction the property falls. If the
tenant contests the notice in court, the
court will hear the arguments and evidence
presented by both parties and then take a
decision.
What To Do If A Tenant Refuses To Vacate Land?

12 January 28, 2019
An inside track of
happenings in Lutyens’ Delhi
The homecoming of veteran politician
Sheila Dikshit to active politics as the new
chief of the Delhi unit of the resurgent
Congress party has been more widely
welcomed by rank-and-file workers than
was expected. In fact, her elevation as
president, replacing the younger Ajay
Maken, had smooth sailing even within
the portals of the high command where
there was near unanimity between the so-
called old and new guard.
The Congress badly needed this show
of unanimity after a mini civil war broke
out over the chief ministerial rivalry
between Ashok Gehlot and young fire-
brand leader Sachin Pilot in Rajasthan fol-
lowing the Congress’s recent victory in the
assembly polls. Maken and Dikshit had
been known to be at loggerheads in the
past which is part of the story behind the
Congress’s poor showing in Delhi which
allowed AAP to sweep to power.
But with a different political wind blow-
ing across the country, the Congress is
looking to regain strength in Delhi’s seven
Lok Sabha seats which may entail some
backroom arrangement with the ruling
AAP which could be losing steam but is
still a dominant force. Dikshit seems to be
the pick because she is a three-time CM,
an able administrator, and a tough but
flexible negotiator who will be far more
adept in dealing with Arvind Kejriwal and
his party honcho Gopal Rai than Maken
who is seen not only as a divisive element
within the Delhi Congress but also as an
uncompromising hardliner when it comes
to AAP.
Her obvious drawbacks are her advan-
cing age (she is 80) and relatively poor
health. She has just returned from abroad
following a heart procedure as well as eye
surgery. But friends who have met her say
her energy levels are high. For politicians,
age is just a number. Former prime
minister Manmohan Singh at 86 has
emerged as the most formidable critic of
Prime Minister Modi, and LK Advani at 91
and Murli Manohar Joshi at 84 are still
chugging along.
For yesteryear’s rockstar of Madison
Square Garden, Prime Minister Narendra
Modi, Congress President Rahul Gandhi’s
trip to Dubai must have been galling.
Compared to the choreographed hype
seen in New York in September 2014, the
Gandhi scion’s Dubai trip got a spontane-
ous response and was a smash hit on the
internet. Though almost ignored by the
mainstream media here, social media was
flooded with videos of his visit. It started
with the stupendous welcome at Dubai air-
port with excited people falling over them-
selves to see him, followed by his speech
at a stadium which was chock-a-block with
Indians, mainly Malayalees, not
only from the Emirates but other
parts of the Gulf region too.
There was also a video of him
being invited to the opulent resi-
dence of Yousuf Ali, the richest
Indian in the UAE. One had barely
taken in the ostentatious gold and
white interiors than another video
surfaced of Rahul and his
entourage, which included Sam
Pitroda, having breakfast with
another top businessman, Sunny
Varkey. The decor, complete with
lovely flower arrangements, crois-
sants, turkey and other delicacies,
was a sight to behold though Rahul
is believed to have had only
orange juice and scrambled eggs.
This attempt to woo cash-rich NRIs
has already given jitters to the gov-
ernment, leading to fake news
about the visit going viral. A web-
site, My Nation, claimed that Rahul was
embarrassed by questions from a 14-year-
old about Congress rule earlier, while one
Twitter user said Rahul had breakfast worth
£1,500 at the Hilton. Some social media
post also claimed that he had beef at the
breakfast meeting. All were found false. It
was a case of Saffron going Green!
GAGA OVER RAGA
RETURN OF THE NATIVE

Delhi
Durbar
Recently ousted Madhya Pradesh Chief
Minister Shivraj Singh Chouhan had
hoped that his party’s narrow defeat in
the assembly polls, despite being faced
with 15-year anti-incumbency, would have
helped him stay on as the BJP’s face in
the state. However, Prime Minister Modi
and party President Amit Shah don’t
seem eager to give Chouhan a chance at
resurrecting his political fortunes.
Chouhan had hoped to be nominated
as Leader of Opposition in the state
assembly but the central leadership put a
stop to his ambition. Chouhan-baiter and
Bundelkhand heavyweight Gopal Bhar-
gava has got the post. Chouhan has
instead been made the party’s national
vice-president, a post he shares with nine
other leaders including lightweights like
Vinay Sahasrabuddhe, Renu Devi, Shyam
Jaju and the other two dethroned chief
ministers, Raman Singh and Vasundhara
Raje.
In Amit Shah’s era, party vice-presi-
dents have little say in the BJP’s working.
Even before Shah took the reins, the gen-
eral secretaries had a more prominent
role than the vice-presidents. Before
becoming the chief minister, Chouhan
was among the party’s most influential
general secretaries.
The buzz now is that Chouhan may
not even lead the party’s upcoming Lok
Sabha campaign in the state and will
have a limited role in selection of candi-
dates. The Modi-Shah duo will instead
depend more on the feedback from
Chouhan’s rivals, BJP national general
secretary Kailash Vijayvargiya, state unit
chief Rakesh Singh and Bhargava, while
drafting the campaign. Chouhan may,
however, be asked to contest the Lok
Sabha polls—in all likelihood from
Vidisha, the seat currently held by
Sushma Swaraj who has announced
that she will not be returning to the elec-
toral fray.
STICKING IT TO SHIVRAJBolstered by the New Year’s Day
Women’s Wall that saw more than 30
million women—or so it is claimed—
link hands along Kerala’s 620-km-long
national highway, left and progressive
elements in Kerala decided to go a
step farther. The decision had a lot to
do with the fact that, on the day the
eyes of the entire state were focused
on the great wall of Kerala, two women,
with not a little help from the local
Marxist government and its handpicked
police officers, sneaked in under cover
of darkness and created history by
becoming the first women to enter the
Sabarimala temple after the land-
mark September 28 judgment of
the Supreme Court.
Frontal outfits of the ruling
CPI(M) thus hit upon the idea
of a two-day pro-
women event at
Kochi’s Marine
Drive. Named
Aarppo Arthavam
(Celebrate
Menstruation), its primary aim was to
debunk the orthodox notion of menstru-
al impurity and to protest against primi-
tive attitudes towards women’s monthly
cycles. Soon it got the tacit support of
the CPI(M) whose cadres took to social
media to spread the word and it even
became one of the top trending stories
on social media. So much so that Chief
Minister Pinarayi Vijayan even agreed
to be the chief guest at the event’s
closing session.
Cameth the hour but never cameth
the chief minister. The organisers wait-
ed and waited and waited …and wait-
ed. Vijayan is normally a stickler for
punctuality, so eyebrows went up at the
long delay. Soon, it dawned on
them that the CM would not
grace the occasion. The reason:
The “grand” entrance to the
venue was built in the shape of
a giant female sexual organ.
It’s easy to understand
why a CM, even one as
progressive as Pinarayi
Vijayan, opted to
back out.
NO ENTRY
While the controversy over the recent
sacking of Alok Verma as CBI director
has not completely died down, a new
one may soon erupt over who may
lead the agency after the selection
panel finalises a candidate to replace
interim chief Nageswara Rao with a full-
time one. The selection panel, compris-
ing Prime Minister Narendra Modi,
Chief Justice of India Ranjan Gogoi
and Congress leader in the Lok Sabha
Mallikarjun Kharge, is scheduled to
meet on January 24 to discuss Verma’s
successor.
The Ministry of Home Affairs has
prepared a shortlist, with 17 potential
candidates, for the selection panel’s
consideration. Among the frontrunners
are NIA chief YC Modi, NSG Director
General Sudeep Lakhtakia (both from
the 1984 batch), Special Secretary
(Internal Security) Rina Mitra, Uttar
Pradesh DGP OP Singh (both 1983
batch) and Mumbai police commis-
sioner SK Jaiswal (1985 batch).
Many believe that YC Modi is the
PM’s choice. He was part of the
Supreme Court-appointed SIT that
probed the 2002 Gujarat riots and gave
a clean chit to Narendra Modi. The
Congress has claimed that Verma was
removed because he was about to
order a preliminary inquiry into alleged
irregularities in the Rafale deal. If the
prime minister succeeds in pushing for
YC Modi’s appointment by a majority
opinion (Kharge is expected to dis-
sent), protests from the Congress are
a given.
However, to stun the Opposition,
Narendra Modi may back the nomina-
tion of Mitra. This choice may leave
Kharge with little to protest against—
she has had a long stint in the CBI in
the past, is among the seniormost IPS
officers eligible for the job and, most
significantly, would be the first woman
CBI director.
CBI ROULETTE

Lead/ Supreme Court/ Appointment of Judges
14 January 28, 2019
TheelevationoftwojudgestotheCourtbytheCollegiumaftersupersedingmany
HighCourtjudgesraisesquestionsofproprietyandwhethertheprocedure
establishedbytheSecondJudgescasewasfollowed
By Venkatasubramanian
Setting the
Clock Back?
Anthony Lawrence

HE New Year has ushered
in key changes in the
Supreme Court with two
new judges joining it on
January 18. The Chief
Justice of Karnataka High
Court, Dinesh Maheshwari, and a judge
of the Delhi High Court, Justice Sanjiv
Khanna, were administered the oath of
office by Chief Justice of India Ranjan
Gogoi in his Court despite a raging con-
troversy over the merits of the Colle-
gium’s recommendation to elevate them,
overlooking their lack of seniority over
other eligible judges.
Critics of the Collegium’s decision
alleged that while recommending these
two judges for elevation to the Supreme
Court, it simply ignored the require-
ments of law and established conven-
tions. Their grievance was that the
Collegium unjustly jettisoned the resolu-
tion adopted at its December 12, 2018,
meeting in which it had recommended
the elevation of the Chief Justice of
Delhi High Court, Justice Rajendra
Menon, and the Chief Justice of
Rajasthan High Court, Justice Pradeep
Nandrajog, to the Supreme Court. These
two judges were senior to Justices
Maheshwari and Khanna, and seniority
being an important criterion, the Colle-
gium ought not to have ignored it, it was
pointed out.
Conventions and the procedure es-
tablished by the Supreme Court’s judg-
ment in the Second Judges case, the crit-
ics said, require that once the Collegium
resolves to recommend judges for
appointment, the names are sent forth-
with to the government for processing.
But the Collegium which recommended
certain names in its meeting on
December 12, did not ensure that its
resolutions were uploaded on the
Supreme Court’s website and formally
sent to the centre for processing.
The reason, according to the resolu-
tion uploaded on January 10, was that
the required consultation could not be
undertaken and completed as the winter
vacation of the Court had intervened.
“By the time the Court re-opened, the
composition of the Collegium under-
went a change. After extensive delibera-
tions on 5th/6th January, 2019, the
newly constituted Collegium deemed it
appropriate to have a fresh look at
the matter and also to consider the pro-
posals in the light of the additional
material that became available,” the res-
olution read.
T
he Collegium was of the consid-
ered view that both Justices
Maheshwari and Khanna are
more deserving and suitable in all
respects than other chief justices and
senior puisne judges of High Courts for
being appointed as judges of the Sup-
reme Court. While recommending their
names, it claimed to have taken into
consideration their combined seniority
on an all-India basis of chief justices
and senior puisne judges of High
Courts, apart from their merit and
integrity. The Collegium also claimed to
have kept in mind the desirability of giv-
ing due representation on the Bench, as
far as possible, to all High Courts.
Justice Dinesh Maheshwari was
appointed a judge of the Rajasthan
High Court on September 2, 2004, and
transferred to Allahabad High Court on
July 19, 2014. He was elevated as chief
justice of Meghalaya High Court on
February 24, 2016, and was thereafter
transferred to Karnataka High Court on
February 12, 2018. His serial no. was 21
in the combined seniority of High Court
judges on an all-India basis.
Justice Khanna was appointed a
judge of the Delhi High Court on June
24, 2005, and stood at no. 33 in the
combined seniority of High Court
judges on an all-India basis. The Colle-
gium said that it was well aware of his
seniority in the Delhi High Court also.
Justice Khanna will retire on May 13,
2025, and will have a tenure of six
months as CJI. This will be after the
term of Justice DY Chandrachud as CJI
gets over on November 10, 2024. Justice
Khanna supersedes two judges of the
Delhi High Court, namely, Chief
CriticsoftheCollegium’sdecisionallegedthatwhilerecommendingJustices
DineshMaheshwari(left)andSanjivKhannaforelevationtotheSupremeCourt,it
simplyignoredtherequirementsoflawandestablishedconventions.
T

appointed Justice AN Ray as the chief
justice of India, thus superseding him.
Justice HR Khanna also sided with the
majority in the landmark decision in the
Kesavananda Bharati case, a 7:6 split
verdict which held that
Parliament does not have
the power to amend the
Constitution so as to abro-
gate its basic features.
Irrespective of his illustri-
ous lineage, Justice Sanjiv
Khanna’s suitability for
joining the Supreme Court
in his own right has never
16 January 28, 2019
Justice Rajendra Menon and Justice
Shripathi Ravindra Bhat. While Justice
Menon retires on June 6 this year,
Justice Bhat retires on October 20 next
year. The age of superannuation for
High Court judges is 62, while for Sup-
reme Court judges it is 65. If appointed
to the Supreme Court, Justices Menon
and Bhat will have tenures of just
three-and-a-half and four-and-a half
years, respectively.
A
lthough judges have been app-
ointed with such tenures earlier,
a judge with a long tenure of five
or six years is likely to contribute more
to the Supreme Court’s jurisprudence,
and can hope to preside over benches,
and be a member of the Collegium
before his retirement.
Justice Khanna is the nephew of a
legendary judge of the Supreme Court,
HR Khanna, who gave a landmark dis-
sent in the habeas corpus case during
the Emergency, setting aside the centre’s
move to suspend the fundamental rights
of citizens. Justice HR Khanna resigned
when Prime Minister Indira Gandhi
been in doubt.
But the controversy over the choice
of Justice Maheshwari is not easy to
brush aside. He retires on May 14, 2023,
a comparatively shorter tenure than
Justice Khanna. Besides, his elevation to
the Supreme Court was stalled by the
previous Collegium when Justice J
Chelameswar was its member. Justice
Chelameswar opposed his elevation be-
cause Justice Maheshwari as chief jus-
tice of Karnataka High Court chose to
deal with the centre directly rather than
through the Collegium regarding the
suitability of a district judge recom-
mended for the post of High Court
judge. While the Collegium reiterated its
recommendation to appoint that judge
to the High Court, the centre had some
misgivings and asked Justice Mahesh-
wari to inquire into his suitability in
view of allegations of sexual harassment
against him. The centre’s decision not to
go ahead with the Collegium’s recom-
mendation in view of Justice Mahesh-
wari’s report was cited by Justice Chela-
meswar as adverse material against him.
CJI Gogoi is reportedly of the view
that the decision of the Collegium not to
recommend a person for appointment
ItwaspointedoutthattheelevationofJusticesRajendraMenon(left)andPradeep
NandrajogwasignoreddespitetheirbeingseniortoJusticesMaheshwariandKhanna.
Seniorityisacriticalcriterion,andtheCollegiumshouldn’thaveignoredit.
Lead/ Supreme Court/ Appointment of Judges
CJIRanjanGogoiisreportedlyofthe
viewthatthedecisionofthe
Collegiumnottorecommendaperson
forappointmentdoesnotmeanthat
heisnotsuitableforalltimetocome.
DecisionsoftheCollegiumcouldbe
reviewedbyasuccessiveCollegium.

does not mean that he is not suitable for
all time to come. Decisions of the
Collegium could be reviewed by a suc-
cessive Collegium, and reversed, if need
be, he reportedly felt.
While Gogoi may indeed be correct,
it is not easy to ignore the aberrations in
the process of decision-making by the
Collegium which were noticed even ear-
lier. Members of the Collegium are
known to let their biases and prejudices
regarding those who are eligible to pre-
vail over objective considerations of
their suitability for the Supreme Court.
This has, in the past, played havoc with
a judge’s chances of playing a meaning-
ful role in the Supreme Court, let alone
making it as CJI in due course.
I
n the Second Judges case, the nine-
judge bench of the Supreme Court
held in 1993: “Inter-se seniority
amongst Judges in their High Court and
their combined seniority on all India
basis is of admitted significance in the
matter of future prospects … It is, there-
fore, reasonable that this aspect is kept
in view and given due weight while
making appointments from amongst
High Court Judges to the Supreme
Court. Unless there be any strong cogent
reason to justify a departure, that order
of seniority must be maintained bet-
ween them while making their appoint-
ment to the Supreme Court … this
would also lend greater credence to the
process of appointment and would avoid
any distortion in the seniority between
the appointees drawn even from the
same High Court.”
Critics are, therefore, right in asking
the CJI and the Collegium whether
there is any strong and
cogent reason to justify a
departure from the order of
seniority as envisaged in the
Second Judges case, and if
so, it must be shared with
the public.
But the CJI appears to
have taken a stand that dis-
closure of adverse material
against a judge serving in
the High Court could com-
promise his continuance
there, and therefore, should be avoided.
This reason is convincing if there is
supersession of one or two judges, or
when a need is felt to elevate a not so
senior judge to ensure geographical,
social and regional diversity.
But when the list of superseded
judges in the all-India list of eligible
High Court judges is so huge, as in the
present case, misgivings are bound to
arise as to whether there are strong and
cogent reasons for departing from the
principle of seniority.
On January 12, 2018, four senior-
most judges of the Supreme Court held
a press conference to expose then CJI
Dipak Misra’s “less than desirable”
way of administering the Court and
the Collegium posing a real danger
to democracy.
Questions continue to be asked a
year after that press conference whether
the current CJI Gogoi, who was part of
that presser, has taken the necessary
steps to inspire the confidence of the
public in the Court and made it more
transparent.
The recent appointments to the
Court are likely to add to the misgivings
about the functioning of the Collegium
and the apex court.
JusticeSanjivKhannaisthe
nephewofJusticeHRKhanna(left),
whogavelandmarkverdictsinthe
habeascorpus caseduringthe
EmergencyandinKesavananda
Bharati.But,hissuitabilityforthe
SChasneverbeenindoubt.
JusticeMaheshwari’s
elevationwasstalledbythe
CollegiumwhenJusticeJ
Chelameswar(left)wasits
member.AsChiefJusticeof
KarnatakaHC,Justice
Maheshwaridealtwiththe
centredirectlyonadistrict
judge’sappointment.

Supreme Court/ Dance Bars
18 January 28, 2019
ATE evenings will never be the
same again in Mumbai with
the Supreme Court overruling
the Maharashtra government’s
ban on dance bars in the state,
allowing tips and alcohol inside dance
bars. The Court, in its judgment, said
that there can’t be a total prohibition on
dance bars, asserting that there may be
regulations but not total prohibition.
The apex court, however, upheld cer-
tain state laws governing dance bars,
while weeding out others. It was the
Indian Hotel and Restaurant Associ-
ation and the Bhartiya Bargirls Union
that had challenged certain provisions
of the Maharashtra Prohibition of
Obscene Dance in Hotels, Restaurant
and Bar Rooms and Protection of
Dignity of Women (Working therein)
Act, 2016, and the rules framed under
the Act. The petitioners approached the
Court to regulate how the dance bars
would operate in the state.
The Supreme Court bench compris-
ing Justices AK Sikri and Ashok
Bhushan gave the judgment, upholding
some parts of the legislation, while
quashing others. Section 8(4) of the said
Act, which prohibits showering of cur-
rency notes and coins on the dancers,
has been partly struck down. The Court
has allowed payment to dancers person-
ally, saying: “We, therefore, uphold the
provision insofar as it prohibits throw-
ing or showering of coins, currency
notes or any article or anything which
can be monetised on the stage. How-
ever, handing over of the notes to the
dancers personally is not inappropriate.”
The segregation of the bar room area
from the hotel has also been quashed by
the bench, saying there is no rationale or
justification in imposing “such a condi-
tion which appears to be quite unrea-
sonable”. While quashing the condition
of keeping such establishments 1 km
away from an educational or religious
institution, the bench took into account
the “ground realities particularly in the
city of Mumbai where it would be diffi-
cult to find any place which is 1 km
away from either an education institu-
tion or a religious institution”.
Also quashed was the condition that
mandated the installation of CCTV cam-
eras, holding it violative of the right to
privacy. The Act had put a restriction on
serving of alcohol in the premises, which
was also set aside since it amounts to
“moral policing”.
The regulations might have been
alleviated, but the true purpose had not
been sidelined, the Court mentioned.
“The present legislation is given a cloak
of bringing regulatory regime to regu-
late the places where there are dance
performances. For this purpose, the
impugned Act does not permit dance
performances without obtaining licence
under Section 3 of the Act. Further, it
makes obscene dances a penal offence.
No quarrel on this.” Therefore, the time
restriction on such establishments has
been upheld by the Court. Mentioning
the operation hours of such dance bars
being between 6 pm and 11.30 pm, the
Court said, “we do not find it to be man-
ifestly unreasonable”.
It is the second time that the apex
court has passed judgment on dance
bars. In 2013, the Court had upheld the
right of bar dancers to pursue their pro-
fession after the state government
banned girl dancers from performing in
the city's bars.
—By Naved Ahmed
Dancing The Night Away
Theapexcourtstrikesdownseveralprovisionsofstatelawsimposedin2016
thatplacedcurbsonthefunctioningofMumbai’soncefamousdancebars
ASupremeCourtbenchcomprising
JusticesAKSikriandAshokBhushan
gavethejudgment,upholdingsome
partsofthelegislation,while
quashingothers.
L
forevernews.in

Supreme Court/ Compassionate Appointment
20 January 28, 2019
T is a settled principle of law that a
child born of a void marriage cannot
be treated as illegitimate. Yet, in a
strange case—the centre, which
ought to have applied this law in
specific cases—was an appellant in
the Supreme Court against a High
Court verdict, which affirmed this
sound principle.
In Union of India vs VR Tripathi,
the centre appealed against the judg-
ment of a division bench of the Bombay
High Court, delivered on April 1, 2016,
in the Supreme Court. On December 11
last year, a Supreme Court bench of
Justices DY Chandrachud and MR Shah
dismissed the centre’s appeal as having
no merit.
In the case, the father of the respon-
dent was employed as a technician for
Central Railway at Mumbai. He had a
second marriage during the existence of
his first marriage and died in harness in
2009. The respondent in the case was a
son from the second marriage. He appl-
ied for compassionate appointment on
the death of his father, but his applica-
tion was rejected on March 6, 2012, by
the Railways.
Aggrieved, the respondent moved an
Original Application before the Central
Administrative Tribunal (CAT).
The Tribunal held in favour of the
respondent. However, the
Railways sought a review and
upon dismissal of
this petition, the centre and the
Railways instituted writ proceed-
ings before the Bombay High
Court.
The High Court held that
Section 16 of the Hindu Marriage
Act (HMA), 1955, recognises the
legitimacy of a child born from a
marriage which is null and void
under the provisions of Section
11. Under Section 11, any mar-
riage solemnised after the com-
mencement of the Act shall be
null and void and may, on a peti-
tion presented by either party
against the other, be so declared
by a decree of nullity if it contra-
venes any one of the conditions
specified in Clauses (i), (iv) and (v) of
Section 5.
Section 5 (i) requires that neither
party has a spouse living at the time of
the marriage, while Section 5 (iv)
requires that the parties are not within
the degrees of prohibited relationship
unless the custom or usage governing
each of them permits a marriage bet-
ween the two. Section 5 (v) requires that
the parties are not sapindas of each
other unless the custom or usage gov-
erning each of them permits a marriage
between the two.
There were earlier judgments in sim-
ilar cases in other courts. A circular
issued by the Railway Board in 1992 dis-
qualifying children born of a void mar-
riage from being eligible for compas-
A Legitimate Demand
TheCourtheldthatapersonbornofavoidmarriageisentitledtosuchappointmentand
ensuredthedignityofthefamilyofanemployeewhodiedinharness
By Venkatasubramanian
I
Thefatheroftherespondentwasa
Railwaysemployee.Hehadasecond
marriageduringtheexistenceofthefirst
marriage.Thesonfromthesecond
marriagesoughtthejob.
Anthony Lawrence

sionate appointment was set aside by a
division bench of the Calcutta High
Court in Namita Goldar vs Union of
India in 2010. In 2000, in Rameshwari
Devi vs State of Bihar, the Supreme
Court had upheld the entitlement of the
family of a deceased employee to pen-
sionary benefits notwithstanding the
fact that he had contracted a second
marriage. Given this legal background,
the Bombay High Court found no rea-
son to differ with the view of CAT.
The centre went to the Supreme
Court and in its submissions argued that
compassionate appointment was not an
alternative source of employment or
recruitment; it is not a matter of a heri-
table right and depends on the extant
rules or schemes under which such ben-
efits or facilities are envisaged. It further
said that Section 16(3) of the HMA
envisages that a child born from a mar-
riage which is void under Section 11 has
a claim only in respect of the property of
the parents and no further.
The centre also contended that the
Supreme Court’s decision in Ramesh-
wari Devi is distinguishable since pen-
sion is a matter of right as a result of the
previous service of an employee and
therefore, represents an entitlement in
the nature of property. The State, the
centre argued, can deny compassionate
employment to children of a void mar-
riage, as a legitimate instrument of its
policy to discourage bigamy.
T
he counsel for the respondent
argued that while the centre
could assert that a second spouse
is not entitled to compassionate app-
ointment, such a facility could not be
denied to children from a second mar-
riage once their legitimacy operates as a
matter of law.
In the Namita Goldar case, after its
circular was struck down by the Calcutta
High Court, the Railways did not appeal
against it and implemented it. However,
it brazenly brought in another circular
on April 3, 2013, reiterating the earlier
circular, contrary to the decision of the
Calcutta High Court.
The Supreme Court, relying on a pre-
vious judgment, held that the reason
behind a provision for grant of compas-
sionate employment is to enable the
family of the deceased employee to tide
over the sudden crisis resulting from the
death of the bread-earner. It is an excep-
tion to the general rule that recruitment
to public services should be on the basis
of merit.
The Court held that legitimacy of a
child born from a marriage which is null
and void is a matter of public policy.
This is in order to protect such a child
from the consequences of illegitimacy.
The bench made it clear that it was not
open to the State, while making schemes
or rules, to lay down a condition which
is inconsistent with Article 14 of the
Constitution.
The bench held that the effect of the
Railways circular was that, irrespective
of the destitution a child born from a
second marriage of a deceased employee
may face, compassionate employment is
to be refused unless the second marriage
was contracted with the permission of
the administration. Such a condition of
exclusion is arbitrary and ultra vires,
the bench concluded.
Any stipulation or condition which is
imposed must have or bear a reasonable
nexus to the object which is sought to be
achieved, the bench held. Children do
not choose their parents; to deny com-
passionate appointment though the law
treats a child of a void marriage as legit-
imate is deeply offensive to their dignity
and is offensive to the constitutional
guarantee against discrimination, the
bench added.
The bench considered it improper on
the part of the Railway Board to issue a
fresh circular on April 3, 2013, reiterat-
ing the terms of the earlier circular
dated January 2, 1992, even after the
decision in Namita Goldar, which
attained finality.
The Supreme Court directed the
Railways to take a decision on the appli-
cation of the respondent for compas-
sionate appointment within three
months from December 11, 2018.
Through this judgment, the
Supreme Court upheld the principle
that discrimination between two classes
of legitimate beneficiaries—legitimate
children in this case—would defeat
the whole purpose of ensuring the digni-
ty of the family of an employee who
died in harness, and was therefore
unconstitutional.
TheSCbenchofJusticesDYChandrachud(left)andMRShahsaidthatchildrendonot
choosetheirparentsanddenyingcompassionateappointmentisdeeplyoffensiveto
theirdignityandoffensivetotheconstitutionalguaranteeagainstdiscrimination.

Supreme Court/ Char Dham Project
22 January 28, 2019
Supreme Court bench of
Justices RF Nariman and
Vineet Saran recently
gave the green signal to
Prime Minister Narendra
Modi’s Char Dham devel-
opment project in Uttarakhand. The
project proposes to provide all-weather
connectivity to the four holy towns of
Kedarnath, Badrinath, Yamunotri and
Gangotri in the hill state.
The petitioner in the case, Citizens
for Green Doon, told the Court about
the damage the project would cause to
the environment. It argued that the
environment impact assessment for the
900-km project had not been carried
out and cautioned that the “blatantly
illegal” project would leave the region
vulnerable to ecological disasters like
the 2013 floods in Kedarnath.
The Supreme Court had, in October
last year, stayed an order of the National
Green Tribunal (NGT) which cleared
the project. The Tribunal bench headed
by NGT Chairman Justice AK Goel had
said in its order of September 26, 2018,
that it was “inclined to clear the project
in view of the larger public interest and
the country’s security in the construc-
tion of the highway”. Following this
order, Citizens for Green Doon appro-
ached the Supreme Court which stayed
the NGT order and sought a response
from the central and state governments.
Arguing for the petitioner in the
Supreme Court, advocate Sanjay Parikh
said that the order of the green tribunal
bench contravened the apex court’s dir-
ection of August 27 in which it asked
the NGT chairman to assign “one clear
day” to the original bench which had
heard petitions concerning environmen-
tal clearance pertaining to the project.
The original bench comprised Just-
ices Jawad Rahim and SP Wangdi and
expert member Nagin Nanda. This
bench had stayed the felling of trees for
the project and reserved the case for
final hearing on May 31. When Justice
Goel took over as NGT chairman, the
matter was listed for hearing before a
bench headed by him. This prompted
Citizens for Green Doon to move the
Supreme Court. It pointed out an anom-
aly—that the Char Dham project was
approved by a bench which was differ-
ent from the one which had originally
heard the petition. While seeking the
replies of the centre and Uttarakhand
governments, Justices Nariman and S
Abdul Nazeer of the apex court stayed
the NGT judgment.
Considered strategically significant,
the project ran into its first obstacle
when the Dehradun-based NGO filed a
petition before the NGT in February
2018. The matter was heard for four
months before the Tribunal reserved its
decision. On September 4, the NGT
referred the case to a larger bench.
In the course of the hearing, the peti-
tioner gave video evidence of environ-
mental damage caused by violation of
norms and debris dumping. Explaining
how the National Highways Authority of
India (NHAI) and the Ministry of Road
Transport and Highways (MoRTH)
were violating ecological norms,
Himanshu Arora of Citizens for Green
Doon was quoted as saying that “since
Rocky Mountain High
Thecontroversialproject
whichaimstoprovide
connectivitytotheholytowns
ofKedarnath,Badrinath,
YamunotriandGangotrihas
beenclearedbythe
apexcourtdespite
ecologicalconcerns
By Atul Chandra
in Lucknow
VULNERABLE ECOLOGY
An all-weather route to the Char Dham is likely
to ease travel disrupted by inclement weather
A

any road project beyond 100 km needs
environmental clearance and environ-
ment impact assessment, they divided
the 900-km project into more than 53
segments. As a result, thousands of trees
are being cut for this project, triggering
the falling of several other trees.” That
loss is never counted, he said.
That the project was divided into 53
segments to avoid ecological bottlenecks
was confirmed by the Union environme-
nt ministry which said in its affidavit
that the project did not require green
clearance because none of its 53 stretch-
es was more than 100 km long. This is
in conformity with the ministry’s guide-
lines for the expansion of existing high-
ways less than 100 km in length.
The NHAI and MoRTH argued that
they had built retaining walls along the
roads to prevent the muck from flowing
into the Mandakini river valley, but the
NGT found that the retaining walls wer-
en’t enough. “When it rains, the entire
muck goes down in the river. This
doesn’t work,” the NGT said after watch-
ing the video evidence.
Citizens for Green Doon also pointed
out the shifting stands of the centre
when it came to describing the Char
Dham project. While the MoRTH and
environment ministry’s affidavits stated
that “Char Dham is a programme and
not a single project”, thus not requiring
a single environmental clearance, the
Union cabinet called it Chardham
Mahamarg Vikas Pariyojna (Char Dham
Highways Development Project), a sin-
gle project. According to one report, the
Uttarakhand government and MoRTH
had separately applied for specific
stretches for felling of 40,000 trees.
T
he Char Dham project was laun-
ched by the prime minister on
December 27, 2016. It is estimat-
ed to cost `12,000 crore. Originating
from Rishikesh, the highway will inclu-
de long bridges and tunnels to eliminate
slide-prone areas and will reach upto
the India-China border. According to
one source, 15 big bridges, 101 small
bridges, 3,596 culverts and 12 bypasses
are to be built under the project. Good
roads in the region are considered of
great strategic importance, given the
heavy Chinese deployment. Also, one
has to consider the high quality of roads
built by China.
To underline the significance of the
highway, the Border Roads Organisation
(BRO) told the NGT: “The road is
extremely important from strategic
point of view, as it is in close proximity
to the China border…defence prepared-
ness will get adversely affected in case
the roads are not improved as per the
requirement of defence forces.” The
BRO also stated that “in the eventuality
of any aggression, movement of heavy
weapons, plants and equipments,
artillery guns etc. would not be possible
in case roads are not improved”.
The BRO made these submissions in
its 12-page affidavit filed in response to
a plea filed by one Birendra Singh
Matura and others against the violation
of Bhagirathi Eco Sensitive Zone
Notification in the name of road widen-
ing work to connect Kedarnath, Badri-
nath, Gangotri and Yamunotri. These
border points are Nelang Valley, which
is in India’s operational control in the
Gangotri region and Barahoti Valley in
the India-China border area, which also
is in India’s control.
Environmentalists are concerned
about the denuding of mountains and
displacement of the local population.
RC Sharma, head of the environment
science department in HN Bahuguna
University, Srinagar, Garhwal, was quot-
ed as saying: “You can’t cut the hill verti-
cally at 90 degrees as they are doing
now. If the base is removed the moun-
tain will fall, landslides will naturally
happen, and we are already watching
this happening. There are places in the
hills where we never saw landslides, but
since this construction started, numer-
ous landslides are happening.”
These and many other similar con-
cerns have been brushed aside as project
completion is going full steam ahead.
However, it is unlikely to be over before
the 2019 Lok Sabha elections. In fact
Mansukh L Mandaviya, the Union min-
ister for road transport and highways,
told the Lok Sabha in March 2018 that
the project is targeted to be completed
by March 2020. Till then, it will be
Rocky Mountain High.
TheBorderRoadsOrganisationhas
toldtheNGTthattheroadisinclose
proximitytotheChinaborder,and
defencepreparednesswillgetadversely
affectedincasetheroadisnotimproved.

Supreme Court/ Encounter Killings
24 January 28, 2019
N an interview to a national news
channel in June 2017, barely three
months after he took charge as the
chief minister of Uttar Pradesh,
Yogi Adityanath said, “Agar apradh
karenge toh thok diye jayenge (if
they commit crimes, they will be shot
down).” A year and a half down the line,
it is clear that his words and the policy
behind it have had a far more disturbing
impact than imagined.
By the state government’s own ad-
mission, January 2018 saw the police
conducting 1,038 encounters in which
over 32 people were killed while 238
were injured. The highest number was
reported from the Meerut zone where
569 encounters took place, followed by
Bareilly, Agra and Kanpur. There were
51 encounters in Gorakhpur, the home
The Gun
Toting Yogi
TheUttarPradeshgovernment’sencounterpolicyhasmet
withwidespreadcondemnation,forcingtheSupremeCourtto
examineapleaforacourt-monitoredprobe
By Govind Pant Raju in Lucknow
I
ENCOUNTER STATUS?
(Top) Uttar Pradesh CM Yogi Adityanath on a
surprise visit to Police Lines in Lucknow
UNI

turf of the chief minister. However, the
Adityanath government’s encounter pol-
icy has been severely criticised by vari-
ous human rights outfits as well as
opposition parties.
“The Yogi Adityanath government
thinks that by adopting strict measures,
crime can be brought under control and
that's why they have adopted ‘encounter’
as state policy. But so far, the law and
order has shown no improvement. To
terrorise the opposition, various laws are
also being misused by the government,”
SR Darapuri, ex-IG (UP police) and
human rights activist, told India Legal.
Pointing to the misuse of the Na-
tional Security Act (NSA), the former
cop said, “More than 150 people were
booked under NSA, most of them
Muslims. What’s more, a close look at
the encounter data shows that a majori-
ty of victims are Muslims followed by
Dalits, OBCs and weaker sections of
society, while the number of actual
hardened criminals being gunned down
is extremely low. They are also suppress-
ing those sections who are not in line
with the ruling party. The minorities
and Dalits are feeling terrorised in
Uttar Pradesh.”
I
t is not just human rights activists.
Political parties across the spectrum
have also targeted the Adityanath
government on its policy. Samajwadi
Party chief Akhilesh Yadav remarked
recently: “The BJP is misusing the Uttar
Pradesh police, which is inflicting tor-
ture on the people of the state and creat-
ing fear among them. It is the duty of
the government to see that everyone
gets justice.” Condemnation has also
come in from Shivpal Yadav’s party
which has sent two memoranda to
Governor Ram Naik while the Congress
party has termed Aditynath’s rule as “en-
counter Raj”.
These protests were so far brushed
aside by the government but with the
apex court now stepping in, the state
government has no option but to sit up
and take note. Taking cognisance of the
matter, the Supreme Court agreed to
“Everyone should be guaranteed securi-
ty, but those who want to disturb peace
of society and believe in the gun, should
be given the answer in the language of
the gun itself,” said Yogi Adityanath, on
February 9, 2018.
The Uttar Pradesh chief minister is, if
nothing else, a man of his words. As per
the official records of the state govern-
ment, 1,100 police encounters have
taken place in the state in the 10 months
since he took over in March 2017. The
chief minister on several occasions
has vehemently advocated the mass
encounters and the unchecked
powers of the police under the head,
“Operation Clean”.
Recently, while considering the “seri-
ousness” of the encounter killings in the
state, the Supreme Court in a PIL
acknowledged the need for a detailed
hearing and listed it for February 12. The
petition was put up before the bench
comprising (above, from left) Chief
Justice Ranjan Gogoi and Justices
Ashok Bhushan and SK Kaul and was
filed by People’s Union for Civil Liberties,
alleging that the encounter killings in the
state are a blatant violation of the law
and protection available to citizens
under Article 21 of the Constitution.
The plea, while referring to the guide-
lines and directions laid down by the
Supreme Court in PUCL vs. State of
Maharashtra in 2014, stated that “Each
such encounter is required to be investi-
gated on the basis of FIR, followed by a
Magisterial Enquiry and thereafter, a
criminal trial in accordance with law.”
The NHRC took cognisance of the state-
ment of the chief min-
ister dated November
19, 2017, and noted
that the police is “mis-
using their power in
the light of an unde-
clared endorsement
given by the higher
ups”. The petitioner
contended that this
endorsement of police
encounters by the chief minister is in vio-
lation of the right to life guaranteed to
all. The petition also sought a court-mo-
nitored investigation or an investigation
under a monitoring committee headed
by a retired Supreme Court judge.
However, the UP government, repre-
sented by senior advocate Mukul Roh-
tagi, rebutted the claim, saying that in all
the encounters that took place last year,
the procedure set up by the Supreme
Court was complied with. He stated that
30 of 48 suspected criminals killed in the
last year belonged to the majority com-
munity, thus denying any communal hue
to the situation.
Last week, after four UN human
rights experts expressed concerns over
59 encounter deaths in 22 months from
March 2017, the office of the United Na-
tions High Commissioner for Human
Rights had also red-flagged the encoun-
ters. “We are extremely concerned about
the pattern of events: individuals
allegedly being abducted or arrested
before their killing, and their bodies
bearing injuries indicative of torture,” the
UN experts said.
The government has cited the
encounters as proof of its resolve to rid
the state of criminals and anti-socials.
“Sympathy for criminals is dangerous in
a democracy,” Adityanath had said last
year but in giving the issue “serious
consideration” and agreeing to examine
the issue in detail, the apex court is
seeking to restore the express constitu-
tional provisions and thus the true spirit
of democracy.
—Shivani Bhasin
SupremeCourtshowsconcern
forencounterkillings

Supreme Court/ Encounter Killings
26 January 28, 2019
examine in detail a plea seeking a court-
monitored CBI or SIT probe into alleged
police encounters and killings in the
state. A bench headed by Chief Justice
Ranjan Gogoi and Justices Ashok
Bhushan and SK Kaul perused the
material on record and said issues raised
in the petition by NGO People's Union
for Civil Liberties (PUCL) required
“serious consideration” and has fixed the
hearing for February 12. Senior advocate
Mukul Rohatgi, appearing for the Uttar
Pradesh government, however, claimed
all norms and procedures were followed
by the state administration.
E
arlier, the top court had sought a
response from the state govern-
ment on the PIL filed by the
NGO, alleging that there were about
1,100 encounters in 2017 in which 49
people were killed and 370 injured. The
plea said that the families of those killed
or injured also be granted compensa-
tion. “By this petition, the petitioner is
bringing to the notice of this court inci-
dents of massive administrative liquida-
tions taking place in the state of Uttar
Pradesh in blatant violation of the rule
of law, legal and constitutional protec-
tion available to the citizens, in particu-
lar, regarding life under Article 21 of the
Constitution,” it said.
The NGO, in its plea, also referred to
news reports quoting Aditya-
nath, his deputy, Keshav
Prasad Maurya, and ADG
(law and order) Anand
Kumar, justifying encounter
killings of criminals in the
state. It sought a probe into
the encounters by an inde-
pendent agency—the CBI or a
SIT comprising police officers
Despitethecriticism,UPCM
Adityanathhasmaintained
thatthecrackdownwillcon-
tinueuntilcrimeiscompletely
wipedoutfromthestate.He
saysthatitisunfortunate
thatsomepeopleareshowing
sympathytowardscriminals.
September 29, 2018: Apple executive
Vivek Tiwari was shot dead by a police-
man in Lucknow. Tiwari was on his way
to drop a colleague in his SUV and
allegedly brushed against the bike of two
constables when asked to stop for
checking. He was shot at by constable
Prashant Chaudhary. The SIT probing
the case held Chaudhary guilty of
killing Tiwari.
February 8, 2018: A suspected criminal,
Manoj Kumar Singh, was shot dead by
the UP police in Hariharpur village,
Sitapur district. The police claimed that
he was a wanted criminal in several
cases and killed in cross-firing after a
team chased him.
February 3, 2018: Gym instructor
Jitendra Yadav from Noida’s Parthala
Khanjarpur had an altercation with a
sub-inspector and three constables. This
led to him being shot at, with the bullet
piercing his neck and damaging his
spinal cord. He is now a paraplegic.
One police officer was arrested and
three suspended.
January 17, 2018: Bagga Singh, 40,
was killed in an encounter in Dulhipurva.
The STF said it had received information
that Bagga and his associate, who had a
bounty on his head for murdering a crim-
inal, would be passing through that area.
January 9, 2018: An individual, Channu
Sonkar, was killed in Jahanaganj. The
police version was that he and another
person were fleeing on a bike after trying
to rob a woman and met with an acci-
dent. While being taken to the hospital,
Sonkar snatched a revolver from a
policeman and escaped, but was shot in
an exchange of fire.
December 9, 2017: Aslam, who sold
Questionable
deaths
UP has been in the news repeatedly
for the huge number of encounter
deaths. Here are some that took
place over the last two years:
FAKE OR REAL?
Accused in a murder case being taken to a
police station in Mathura after their arrest in
an encounter
UNI

of “integrity and who have not served in
the state of Uttar Pradesh”.
Quoting the figure provided by the
state government to the NHRC, it said
49 persons died between January 1,
2017, and March 31, 2018. Even after
March 2018, the encounters did not
stop. Four months ago, eyebrows were
raised when Aligarh police woke up
local reporters early one morning to
cover a live encounter.
The biggest reason for the loss of the
Akhilesh government in Uttar Pradesh
was the lack of law and order. On the
very first day, Adityanath had assured
that he would establish the rule of law
in Uttar Pradesh. In his first address,
the chief minister had said that in Uttar
Pradesh, there is only one place left for
criminals and that is jail. He said,
“Those who are not in jail, they will
either be out of Uttar Pradesh or will
learn it the hard way.”
Despite the criticism, Adityanath has
maintained that the crackdown will con-
tinue until crime is completely wiped
out from the state.
The BJP government in a booklet
released on its first anniversary also
claimed that in its first year in power,
instances of crime have decreased as a
result of the crackdown. The govern-
ment says instances of dacoity have
come down by 5.7 percent, murder by
7.35 percent, road hold-ups by 100 per-
cent, abduction by 13.21 percent, atroci-
ties against Dalits by 16.41 percent and
arson by 29.73 percent.
I
n a reply to a question by a BJP
MLC in the Legislative Council on
February 15, 2018, Adityanath said,
“It is unfortunate that some people are
showing sympathy towards criminals.
This is dangerous for democracy. The
encounters will go on.” DGP Singh
insists, “Do not call these ‘encounters’. It
is a crackdown on criminals. So far, we
have arrested over 3,000 criminals. It
was necessary to mount such pressure
on them and it has definitely acted as
a deterrent.”
In September last year, to encourage
encounters, the government allowed
senior police officers to announce bigger
bounties on criminals—a senior superin-
tendent could now announce a reward
of `15,000 instead of just `5,000; an IG
could now announce `1 lakh instead of
the earlier `25,000.
While the state police and the gov-
ernment swear by a zero-tolerance poli-
cy towards crime and criminals, there is
a lurking suspicion about whether it has
become a new metric to mask ulterior
motives. Unsurprising but perhaps more
dangerous is the fact that such zero-tol-
erance rhetoric often ends up as a cover
for the gross misuse of power.
With the Supreme Court now
stepping in, it remains to be seen if the
state government sees some virtue in
trying to be a little less intolerant.
“TheYogigovernmentthinksthatby
adoptingstrictmeasures,crimecanbe
broughtundercontrolandtheyhave
adopted‘encounter’asastatepolicy.But
lawandorderhasnotimproved.”
—SRDarapuri,ex-IG(UPpolice)
andhumanrightsactivist
“TheBJPismisusingthe
UttarPradeshpolice,whichisinflicting
tortureonthepeopleofthestate
andcreatingfearamongthem.Itisthe
dutyofthegovernmenttoseethat
everyonegetsjustice.”
—AkhileshYadav,SamajwadiPartychief
chowmein and samosas in a village in
Shamli, was shot dead by the police at
Dadri, Noida. The police claimed that he
was plotting a big crime and shot dead
in an exchange of fire.
October 23, 2017: Furquan, 33, a band-
saw-machine unit worker in Shamli, was
killed as, according to the police, he was
linked to dacoities in Saharanpur, Shamli
and Muzaffarnagar. He had been
released a few days earlier after spend-
ing seven years in Muzaffarnagar jail as
an undertrial. His family claimed that he
was with them when the dacoities “took”
place. Despite bullet marks, his bones
were found broken.
October 2017: Sumit Gurjar, who was
picked up by the Greater Noida police
from Chirchita village in Baghpat, was
lodged in a police station in Noida and
killed in an exchange of fire.
September 28, 2017: Mansoor was
picked up by the police in plainclothes
from his village in Saharanpur. Later, the
Meerut police said he was wanted in
more than 20 cases and had been shot
dead in Pallavpuram area. The police
also claimed he was in possession of a
foreign-made revolver.
September 8, 2017: Nadeem, a cloth
vendor, was picked up by the police after
an altercation with a jeweller. Two days
later, he was shot dead in an encounter
in Kakroli jungle in Muzaffarnagar.

Courts/ Ram Rahim Conviction
28 January 28, 2019
ITH a CBI court
awarding a life sen-
tence to 51-year-old
Dera Sacha Sauda
chief Gurmeet Ram
Rahim Singh and
three others for the murder of a journal-
ist in 2002, the self-styled godman’s fate
is sealed. He is also serving 20 years
behind bars for raping two sadhvis. The
judge ruled that the life sentence would
not run in concurrence with the earlier
sentence of 20 years, but will start once
the earlier term ends. He also faces fur-
ther sentencing in a case of alleged cas-
tration of several of his followers on the
promise of salvation.
Rahim, who had a blind following
running into lakhs, is currently lodged
in the high-security Sunaria Jail at
The latest conviction pertained to the
gunning down of a Sirsa-based journal-
ist, Ramchandra Chhatrapati. He was
shot on October 24, 2002, and suc-
cumbed to his injuries a month later.
The firing took place outside his house
after his Hindi evening daily, Poora
Sach, published an anonymous letter in
which tales of sexual exploitation of wo-
men at the Dera headquarters in Sirsa
were highlighted. Prior to the attack,
Chhatrapati had written to the local po-
lice about the threats he had been re-
ceiving from the Dera authorities. Des-
pite his requests, no security was provid-
ed to him.
Fortunately for the police, one of the
shooters was nabbed immediately by
locals. The other managed to flee after
the shooting but was subsequently
W
Just Desserts
VERITABLE FORTRESS
(Above) The scene outside the CBI court in
Panchkula on the day of the verdict; Gurmeet
Ram Rahim Singh being taken to Rohtak jail
after his conviction for raping two sadhvis
Givenalifesentenceforthemurderofajournalist,inadditionto20yearsforrapingtwosadhvis,this
godman’sfateissealed.Healsofacessentencinginacaseofallegedcastrationofseveralfollowers
By Vipin Pubby in Chandigarh
Rohtak. Such is the apprehension of his
diehard followers creating a ruckus and
indulging in violence that the entire
hearing in the case was done through
video conferencing. Public memory is
still fresh about the massive violence
that followed his conviction in the rape
cases. The violence had led to the death
of about 40 of his followers in police
action and huge damage to property.
The Haryana government had
specifically requested the CBI court,
which had been hearing the cases
against him at Panchkula, to make an
exemption from the practice of the
accused facing the judge to hear the ver-
dict and the sentence. With security
arrangements beefed up across the state,
the orders were passed without any
untoward incident.
UNI

The CBI court in its verdict held
Rahim and his former manager, Krishan
Lal, guilty under Section 120B (criminal
conspiracy) read with Section 302 (mur-
der) of the IPC. Kuldeep Singh and Nir-
mal Singh were held guilty under Sec-
tion 302 (murder) of the IPC read with
Section 120B (criminal conspiracy).
Kuldeep Singh and Krishan Lal were
also held guilty under Section 25 and
Section 29 of the Arms Act, respectively.
T
he CBI, in its charge sheet, indi-
cted all the convicts. “The investi-
gation conducted by the CBI has,
thus, established that accused Baba
Gurmeet Singh, chief of Dera Sacha
Sauda, Sirsa, accused Krishan Lal, Pra-
bandhak of Dera Sacha Sauda, and acc-
used Kuldeep Singh and Nirmal, car-
penters at Dera Sacha Sauda, entered
into a criminal conspiracy on or before
October 23, 2002 to kill Ram Chander
Chattarpati, a journalist of newspaper
Poora Sach, Sirsa and in furtherance
thereof, accused Krishan Lal gave his
licensed revolver and a walkie-talkie of
the Dera to accused Kuldeep Singh and
Nirmal Singh in the presence of Baba
Gurmeet Singh. Thereafter, both Kul-
deep Singh and Nirmal Singh shot at
Ram Chander Chattarpati on October
24, 2002 at his residence at about 7.30
pm resulting in his death subsequently
on account of the said gunshot injuries,”
the CBI court said.
Recalling the sequence of events,
Khatta Singh told the court: “On
October 23, 2002, Gurmeet Ram Rahim
returned after attending a gathering of
his followers in Jalandhar when the
then Dera manager, Krishan Lal,
showed him the newspaper Poora Sach.
The paper, owned by Ram Chander
Chhatarpati, carried a report accusing
Gurmeet Ram Rahim of sexually
exploiting women at the Dera. Kuldeep
Singh and Nirmal Singh were also with
Krishan Lal. Gurmeet Ram Rahim lost
his cool and ordered to ‘silence the voice
of the man’ behind the newspaper. Next
day, on October 24, 2002, I received a
call from my house that the journalist
had been shot at.”
Khatta Singh said he received “num-
erous blood-stained threat letters” from
Dera followers during the course of the
trial. He was provided security cover by
the Punjab police. Incidentally, Khatta
Singh had in 2012 changed the state-
ment he gave against the Dera chief in
2007. He later wanted to record a fresh
statement, but a CBI court in Panchkula
declined his request. In 2017, he moved
the Punjab and Haryana High Court
through advocate Navkiran Singh. The
Court allowed him to record a fresh
statement in the trial court. Later, the
defence counsel of the accused chal-
lenged the High Court decision in the
apex court, which rejected the plea
of the defence.
The self-styled guru has cooked his
own goose, it seems.
caught. A murder case was registered in
2003 against two employees of the
Dera, Nirmal Singh and Kuldeep Singh,
for the shooting. Even though Chhatra-
pati’s son, Anshul, demanded that the
Dera chief’s name be also included in
the FIR, it was not done. He subseque-
ntly petitioned the Punjab and Haryana
High Court for a CBI investigation into
the shooting. It was accepted by the
Court in November. The murder case
was later handed over to the CBI.
Rahim’s former driver, Khatta Singh,
had earlier told the police that it was the
Dera chief who had ordered Chhatra-
pati’s killing. After investigations, the
CBI filed a charge sheet in 2007 with
Khatta Singh as a key witness.
The case carried on for long due to
delaying tactics employed by the advo-
cates for the accused. This led to the pri-
mary accused, Nirmal Singh, getting
bail in January 2017, 14 years after he
was arrested. The other accused,
Kuldeep Singh, had already been grant-
ed bail shortly after the initial arrest.
The Dera, which has scores of
ashrams in various states and abroad,
had its main support base in Punjab
and Haryana. Politicians of all hues,
ranging from the Congress to the BJP
to the Shriomani Akali Dal, used to
flock to the Dera headquarters in Sirsa
to seek Rahim’s “blessings” and support
before elections.
The Dera supported the Congress in
the 2007 assembly polls, but in 2012 it
chose to remain neutral and followers
were left to decide on their own. In the
2014 Haryana assembly elections, how-
ever, the Dera came out in full support
of the BJP. The BJP won these elections
for the first time ever, but it fell out with
the Dera chief after he apparently rub-
bed party chief Amit Shah the wrong
way. It is believed that the Dera chief
had been taking the credit for the BJP
victory in the state rather than giving
the credit to Prime Minister Narendra
Modi. The Haryana government en-
sured that he was escorted to the courts
from his base in Sirsa to hear the sen-
tencing in the sadhvi rape case.
JUSTICE AT LAST
(Left) Ramchandra Chhatrapati, whose news-
paper published a letter on sexual exploitation
of women at the Dera headquarters

Courts/ Release of Prisoners
30 January 28, 2019
N a piquant situation, the fate of
209 prisoners in Kerala hangs in
the balance. In 2011, the previous
LDF government had ordered the
premature release of prisoners who
had completed 10 years in jail. In
a recent development, the Kerala High
Court has quashed this order.
However, the present LDF govern-
ment has said that it is impractical to
bring back those who were released
more than seven years ago.
The full bench of the High Court
comprising Chief Justice Hrishikesh
Roy and Justices K Abraham Mathew
and AK Jayasankaran Nambiar directed
that the proposal for premature release
of 209 prisoners shall be examined
afresh within six months.
In 2011, the government of Chief
Minister VS Achuthanandan had
invoked Article 161 of the Constitution
and ordered the premature release of
209 prisoners who had completed 10
years’ imprisonment or more. Many writ
petitions were filed challenging this
move by the government.
Meanwhile, Chief Minister Pinarayi
Vijayan’s private secretary and CPI(M)
leader MV Jayarajan has made it clear
that the government will move the
Supreme Court challenging the High
Court verdict as it is an encroachment
on the state’s powers.
The High Court had found that less
than five of the released prisoners who
had been sentenced to life terms had
completed 14 years. Surprisingly, there
were over 100 convicts who had spent
less than 10 years among those released
(See box).
In 1978, the government had brought
in an additional “A” provision in Section
433 of the Code of Criminal Procedure
(CrPC). In Maru Ram vs Government of
India, the Supreme Court said that for
life term, incarceration would be till the
end of life. It made it clear that remis-
sion was not a privilege of the convicted.
However, several judicial commis-
sions had recommended remission for
sentenced persons. But they also said
that there should be utmost scrutiny
while granting remission and such con-
I
Back to
Jail?
Anil Shakya/ Representative image
TheKeralaHighCourthasquashedthe
prematurereleaseof209prisonersby
thestategovernmentasitfoundtoo
manyanomaliesintheprocedure.The
governmentwillnowmovethe
SupremeCourt
By NV Ravindranathan Nair
in Thiruvananthapuram
Following the High Court order, the
present government has started contact-
ing the prisoners after collecting their
addresses from the Department of
Prisons. It has been pointed out that
some of these prisoners have died and
some are settled in other states or have
even left the country.
However, the High Court has not
insisted on taking the released prisoners
into custody urgently as many of them
had not been impleaded in the writ peti-
tions. But home department sources
told India Legal that in view of the prac-
tical difficulty in bringing them back, it
had decided to trace them immediately.
Officials say that as the High Court
had ordered that the activities of the
released prisoners in the last seven
years be examined in detail during the
review, it is important to trace them
immediately. Some of the convicts
released were linked to political parties.
The home department has said that
none of the prisoners were involved in
any crime or got convicted since their
release in 2011.

required facilities for the prisoners.
The files also revealed that retention
of prisoners in jail was becoming expen-
sive for the state and there was no
necessity to retain prisoners beyond 10
years when they had reformed and a
threat to society did not appear proba-
ble. The Court noted there was no con-
sideration of the case of each prisoner
vis-à-vis special circumstances that
called for a departure from the mandate
of Section 433 of the CrPC.
The bench observed: “Our scrutiny of
the files reveals that the only material
available before the Council of Ministers
was the Cabinet note, that was put up
together with the statement showing the
actual period of imprisonment under-
gone by the prisoners, the gist of the
case that led to the conviction, and
remarks showing whether they had been
recommended for a premature release
by the police authorities, probationary
officers or both and whether or not they
fell within the excluded categories of
prisoners as per the guidelines formulat-
ed by the state government. There is
nothing to suggest that the Council of
Ministers was informed of the particular
circumstances that warranted a recom-
mendation for premature release of a
prisoner who had an adverse report
from either the police authorities or the
probationary officer and a favourable
report from the other. Similarly excep-
tional factors that were taken into
account for exempting the prisoners
concerned from the rigours of 433A of
the CrPC were also not made available
before the Council of Ministers or for
that matter before the Governor.”
It added: “In our view, the said laps-
es on the part of the state government
would vitiate the impugned government
order and the approval granted to it by
the Governor, since the exercise of con-
stituent power under Article 161 of our
Constitution by high constitutional
functionaries must take note of the
effect of the decision on the family of
the victims, the society as a whole and
precedent it sets for the future.”
The Court clarified: “We make it
clear that if no decision is taken by the
functionaries under Article 161 within
the said period of six months, it will be
deemed that there is no exercise of
power under Article 161 in favour of
prisoners concerned and steps shall be
taken to reincarcerate such prisoners for
serving out the remainder of their sen-
tence.”
The High Court verdict has come as
a rude shock to the government which
wanted to grant concessions to convicts
involved in political killings.
While pressure is mounting on it
from its party villages in Kannur (where
many political killings have taken place)
to grant premature remission to the
convicts, the Court verdict will dissuade
it from doing so.
cessions should not be given to those
who have committed heinous crimes
against women and children.
T
he High Court said: “The exercise
of constituent power under
Article 161 of the Constitution by
high constitutional functionaries must
take note of the effect of the decision
on the family of the victims, the society
as a whole and precedent it sets for
the future.”
During the hearing, the Court had
called for files from the state govern-
ment to examine the procedure followed
while issuing the order releasing the
prisoners. Perusing these files, the bench
noted that the selection of prisoners for
premature release was based on the
finding by the government that jails in
the state were overcrowded and it was
getting difficult to provide minimum
TheHighCourtcomprising
(fromleft)ChiefJustice
HrishikeshRoyandJustices
KAbrahamMathewandAK
JayasankaranNambiar
directedthattheproposal
forprematurereleaseof
209prisonersshallbe
examinedafreshwithin
sixmonths.
Questionablereprieve
Following are the exact number of
prisoners released in 2011 from
various jails in Kerala to constitute
a total of 209:
Nettukaltheri Open Jail,
Thiruvananthapuram: 111
Kannur Central Prison: 45
Cheemeni Jail: 24
Poojappura Central Prison in
Thiruvananthapuram: 28
Poojappura Women’s Prison: 1

Courts/ Bengaluru Flyover Project
32 January 28, 2019
HIS is one bridge too far
for Bengaluru. Despite the
Garden City having light-
ning-fast data speeds
which help it rake in bil-
lions, it has a hardware
problem: its eight million vehicles jostle
for space on its clogged roads. An
attempt to ease these jams, however, has
not fructified as the Karnataka High
Court has ruled that the Bengaluru
Development Authority (BDA) cannot
go ahead with its steel flyover project
without seeking environmental clear-
ance from the State Environment
Impact Assessment Authority (SEIAA).
This project was shelved by the pre-
vious Congress government. However,
there were hopes of it being revived
when Bengaluru Development Minister
and Karnataka Deputy Chief Minister G
Parameshwara said that the government
rush—the passenger traffic is expected
to grow three-fold in the coming deca-
de—with a BDA plan to build a steel fly-
over to reduce travel time to the airport.
It suggested a six-lane bridge, 6.7 km
long, between Basaveshwara Circle and
Hebbal Junction, which it hoped would
cut time significantly.
But some citizen groups were up in
arms as the project involved cutting
trees and also due to the high cost of
mounting the 60,000-tonne steel
bridge. After a slew of campaigns
against it, the project ground to a halt.
Opposition to the project came from the
likes of former Supreme Court judge
Santosh Hegde and Rajya Sabha MP
Rajeev Chandrasekhar who backed an
organisation that went to the High
Court in October 2016.
George saw it as an attack on his
government by the Opposition as he
claimed that the BDA had consulted
experts from IIT Madras and IISc
Bangalore. For every tree cut, the BDA
said it would plant more trees. But that
T
Thou
Shalt
Not
Steel
ENVIRONMENTAL CONCERNS
A series of protests had led the Siddaramaiah
government to drop the project earlier
Aflyoverwhichwasmeantto
easethecity’snotorioustraffic
hasrunfouloftheKarnataka
HighCourtwhichhasdirected
theBengaluruDevelopment
Authoritytoseek
environmentalclearancefirst
By Stephen David
in Bengaluru
Shruthi Mohany/your story
was mulling whether to review the
project.
Efforts by successive governments
and even the wealthy private sector have
not fructified to get the city a well-con-
nected, seamless public transport sys-
tem. While the state-run Bengaluru
Metropolitan Transport Corporation
runs a fleet of 6,500 buses across 2,000
routes, the eight-year-old 43-km
Bengaluru Metro rapid transit system
carries five lakh riders across its two
lines daily. Ride-hailing service apps
have helped cut some costs and time,
but the city’s traffic jams see no signs of
ending soon.
One of the key stretches that BDA
identified to ease traffic was a stretch
from Kumara Krupa area to Hebbal
Junction, one of the main thoroughfares
going to the Kempegowda International
Airport. With almost 27 million passen-
ger footfalls for 2017-18, the airport has
already become the third busiest in
India. It has 75,000-80,000 passenger
arrivals and departures on a single day.
Around 2016, the Siddaramaiah-led
Congress regime, under Bengaluru
Development Minister KJ George, came
up with the plan to beat the airport

Siddaramaiah’s support is crucial for
Parameshwara to go ahead with the
project after due procedures. After the
Karnataka High Court observation, he
said he would direct the BDA to seek
environmental clearance from the
SEIAA before going ahead with the
project. He also took to Twitter and said
that due procedures would be followed
to start the construction of the bridge.
T
he present chief minister, HD
Kumaraswamy, had opposed the
project when he was in the
Opposition, but has now changed his
tune. He told the media recently that as
chief minister, his first priority was to
ease the traffic congestion in the city
and it didn’t matter whether it was a
steel flyover project or any other kind of
infrastructure intervention that would
help find a solution to the traffic jams.
While the BDA is putting together a
complex set of papers and documents to
get a nod from the SEIAA, a coalition of
citizen groups has sent an appeal to the
latter against the steel flyover project
apart from planning a series of protests,
online and offline, like the ones in 2016
and 2017 which led to the Siddaramaiah
government dropping the project.
According to those opposed to the
steel project, the SEIAA may have to
consider whether it is in violation of the
Karnataka Town and Country Planning
Act and any other court orders. Citizen
groups planning novel protests like the
last time—be it mockumentaries on
YouTube or human chains—will have
to steel their nerves again to mount
their opposition.
With public pressure mounting, the
minister for the city’s development may
find it beneficial to prod his officials and
agencies under him to come up with a
faster, reliable, integrated and sustain-
able public transport system like in
Singapore or London.
With both sides of the project sharp-
ening their lines of attack, the steel
flyover project may take a while to take
off. Meanwhile, Bengaluru’s citizens will
have to get used to spending mind-
numbing hours on the choked roads.
OppositiontotheprojectcamefromthelikesofformerSupremeCourtjudge
SantoshHegde(left)andRajyaSabhaMPRajeevChandrasekharwhobackedan
organisationthatwenttotheHighCourtinOctober2016againsttheproject.
didn’t cut ice with the groups that vehe-
mently opposed it.
“What the government must do now
is to fast-track the Metro line work and
increase the number of buses rather
than spend almost `2,000 crore for such
a small stretch,” said R Ashwini, a stu-
dent volunteer and a regular Metro
rider, to India Legal. “The government
must work 24x7 and increase the Metro
lines to cover the entire city,” he said.
The first red flag against the steel fly-
over came from the National Green
Tribunal (NGT) which wanted the BDA
to seek environmental clearance from
the SEIAA. The NGT heard the submis-
sions of the BDA, the state of Karnataka
and the steel flyover project contractor,
Larsen & Toubro. One of the groups that
had opposed the project sought a third-
party analysis on the environmental
impact due to the construction of the
steel bridge.
Former Chief Minister Siddaramaiah
had claimed that the project was totally
transparent, while the Opposition
alleged it was another scheme to siphon
off funds for the 2018 polls. He claimed
that the steel bridge was proposed in
2010 itself and announced in the 2014-
15 budget.
TRAFFIC WOES
Long snarl-ups on Bengaluru roads are
a daily menace
essay.iaspaper.net

India Legal 28 January 2019

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India Legal 28 January 2019