India Legal 28 May 2018

NDIA EGALL
` 100
I
www.indialegallive.com
May28, 2018
Karnataka: Supreme Court’s
Shock & Awe
Shashi Tharoor:
The legal implications
Frommarketingdubiousdrugs,onlinefraudsandfakenewstodataminingforelection
management,theinternethaspresentedlawmakerswithnewchallengesanddangers
CYBERIA:CantheBeast
beTamed?

ET reverence for the laws be breathed by
every American mother … let it be taught
in schools, in seminaries, and in colleges;
let it be written in Primers, spelling
books, and in Almanacs—let it be
preached from the pulpit, proclaimed in legislative
halls, and enforced in courts of justice. Let it
become the political religion of the nation; and let
the old and the young, the rich and the poor, the
grave and the gay of all sexes and tongues, and col-
ors and conditions keep the rule of law.”
This quote from Abraham Lincoln was how the
current deputy attorney general of the United
States, Rod Rosenstein, ended a recent speech at
the Bar Association of Montgomery County’s Law
Day Celebration in Maryland.
Rosenstein is probably the most talked about
public official in the Donald Trump administration.
He has become the lightning rod for the fury of the
White House and its Republican supporters in
Congress for refusing to play footsie with them in
the ongoing Justice Department investigation
headed by special counsel Robert Mueller into the
Trump administration’s subterranean interactions
with the Russians, designed to influence the out-
come of the presidential election.
The ongoing probe is a textbook case for all
constitutional democracies—especially India—on
the role and conduct of prosecutors in the disinter-
ested pursuit of fraud, waste and corruption. It is
an abject lesson on the practical operation of the
separation of powers without which the rule of law
is emptied of all meaning.
One of the biggest problems in functioning
democracies is that they often become dysfunction-
al when faced with investigating allegations of
criminality, and actual or perceived conflicts of
interest against high-ranking Executive officials.
This is a glaring flaw in the Indian system of gov-
ernment which is committed in constitutional
principle to upholding the separation of powers
between the branches of government but fails to
make that cut in the real world.
Exactly a year ago, I wrote that this principle is
the very foundation of the accountability of rulers
to those whom they govern. Under the Indian sys-
tem, the Legislature—whose prime function is to
ensure that the Executive branch carries out the
mandate of the public with diligence and integri-
ty—is in effect a slavish extension of the Executive.
A minister is also a Member of Parliament or a leg-
islative assembly. This is a built-in conflict of
interest because, as a legislator, the minister can
hardly be expected to be an impartial judge of his
own actions.
It is small wonder then, that despite the CBI,
the Central Vigilance Commission and the CAG,
fraud, waste and corruption, even when detected,
go uninvestigated, unpunished, or covered up by
the very agencies appointed to probe them. At the
central level, the CBI, reporting directly to the
prime minister, while an effective tool against his
political enemies, can hardly be expected to launch
a prosecutorial inquiry against the chief executive
and would also need prior permission from the
government before opening cases against high-
ranking officials and ministers. A newly elected
chief minister of a state can simply shut down an
ongoing criminal investigation against him
launched by a previous administration. Joint par-
liamentary committees have been notoriously par-
tisan in their approach to inquiring into wrongdo-
ing by their own parties.
And here’s where America makes the cut.
Mueller reports to Rosenstein who reports to the
president through Attorney General Jeff Sessions, a
presidential appointee whom Trump can fire at
will. But Sessions has recused himself from all
aspects of the Russia investigation because, before
becoming attorney general, he had participated in
an undisclosed meeting with a top Russian official.
So, Rosenstein has the ball squarely in his
court. But he won’t play ball with the president
who is putting constant pressure on him through
his aides as well as members of Congress and even
hinting at firing him as he did former FBI director
James Comey. But there’s a Catch-22 here, thanks
to the American system of accountability. Legally,
DEFIANT INDEPENDENCE
Inderjit Badhwar
Letter from the Editor
L
| INDIA LEGAL | May 28, 2018 3
Oneofthebiggest
problemsin
functioning
democraciesisthat
theyoftenbecome
dysfunctionalwhen
facedwithprobing
allegationsof
criminality,and
actualorperceived
conflictsofinterest
againsthigh-ranking
Executiveofficials.
Thisisaglaringflaw
intheIndiansystem
ofgovernment.
“

4 May 28, 2018
Trump could get rid of Rosenstein. But the constitu-
tional consequences would be disastrous. After all,
the special counsel was appointed under public and
Congressional pressure precisely because Trump
fired FBI chief Comey who was inching closer to the
White House in the agency’s investigation of Russia’s
meddling in America’s election.
The Comey ouster was tantamount to obstruc-
tion of justice—an offence the American legal sys-
tem does not forgive. Richard Nixon was forced out
of the presidency for obstructing justice in the
1970s after he fired the special prosecutor investi-
gating Watergate. That firing served to accelerate
and widen the probe. Trump’s getting rid of
Rosenstein and then getting his successor to oust
Mueller would lead to catastrophic charges of
obstruction of justice.
A
nd why do Trump and his supporters want
so badly to get rid of Rosenstein? Because he
is refusing to turn over documents that the
FBI and Justice Department investigators gathered
in the course of their inquiry to members of
Congressional committees who blindly back Trump.
Already, former Trump aides have been indicted,
and the premises of his campaign manager and per-
sonal attorney have been raided, with evidence
emerging of payoffs from Trump through slush
funds maintained by his own lawyer.
Rosenstein has been under several threats, but
he has struck a “note of defiant independence”, one
report said. Publicly, he has stated that “the depart-
ment of justice is not going to be extorted”. His pub-
lic remarks at the recent bar association gathering
are a stirring reminder that men and women of
courage are still around to defy power structures.
The theme of his speech, ironically, was “Separation
of Powers”. I will quote liberally from that speech
which was circulated by the bar.
Faithfully enforcing the law is not about follow-
ing a simple set of instructions, he said. As the great
champion of the law, Robert H Jackson, who was
attorney general in 1940, put it, “law enforcement is
not automatic”. Enforcing the law requires discre-
tion and judgment.
Rosenstein recalled that when you enter the
courtyard of the Main Justice building, you pass
beneath a depiction of the scales of justice and an
inscription that reads “Privilegium Obligatio”. It
means that when you accept a privilege, you incur
an obligation. He said that French Enlightenment
philosopher Voltaire put it more concisely: “With
great power comes great responsibility.”
Touching obliquely on the recent pressures on
him to turn over to legislators documents gathered
during the Russian investigation, Rosenstein said
it is “a bedrock principle, with very few exceptions,
that we do not discuss investigations. The Depart-
ment’s longstanding practice of keeping information
about our investigations confidential has often been
the source of disagreement with Congress”.
He cited the 1941 example of Congressman Carl
Vinson writing to Attorney General Robert Jackson
requesting FBI and Justice Department reports
made in connection with an investigation of labour
disputes involving Navy contracts. Vinson’s commit-
tee had oversight for such issues, which is why he
wanted the documents. Attorney General Jackson
flatly refused the request. He did not compromise.
Jackson explained that declining to open the
FBI’s files to review by Congressional members and
staff is an “unpleasant duty”, but it is in keeping with
RodRosensteinis
probablythemost
talkedabout
publicofficialin
theDonaldTrump
administration.
Hehasbecome
thelightningrod
forthefuryofthe
WhiteHouseand
itsRepublican
supportersfor
refusingto
supportthem
intheJustice
Department
probe.
Letter from the Editor
A SYSTEM OF
ACCOUNTABILITY
(L-R) Deputy
Attorney General of
the United States
Rod Rosenstein;
special counsel
Robert Mueller;
Attorney General
Jeff Sessions

the separation of powers embodied in the constitu-
tional system. To illustrate his point, Jackson quoted
a Supreme Court opinion explaining that it is essen-
tial to the successful working of this system that the
persons entrusted with power in any one of these
branches shall not be permitted to encroach upon
the powers confided to others, but that each shall by
the law of its creation be limited to the exercise of
the powers appropriate to its own department.
According to Rosenstein: “Our constitutional
structure, and the separation of powers embodied
in that structure, represents our government’s
defining feature. Justice Scalia explained that those
other humdrum provisions—the structural,
mechanistic portions of the Constitution that pit,
in James Madison’s words, ambition against
ambition, and make it impossible for any element of
government to obtain unchecked power—that con-
vert the Bill of Rights from a paper assurance to a
living guarantee.”
T
he Founders dispersed power both horizon-
tally and vertically. The three branches of the
federal government check one another. The
states and the federal government check one anoth-
er. And the people check both the federal and the
state governments.
The push and pull among and between the
branches is bipartisan. It exists regardless of which
party is in power. Justice Scalia explained that
Americans should “learn to love the separation of
powers”, even though it frequently leads to contro-
versy. That tension—the power of each branch to say
no—is one of the things that protects liberty.
On the wall behind the chair on which Rosens-
tein sits in his Justice Department office in
Washington, D.C., is a huge portrait of his hero,
Robert Jackson. It would be apt, and appropriate to
the spirit of this essay—especially when the Indian
judicial and prosecutorial system is sorely in need of
more advice and inspiration as it goes through a
period of trial and tribulation—to quote from The
Federal Prosecutor, an address by Jackson delivered
at the Second Annual Conference of United States
Attorneys, Great Hall, Department of Justice
Building, Washington, D.C., on April 1, 1940, 10 am.
While the prosecutor at his best is one of the most
beneficent forces in our society, when he acts from
malice or other base motives, he is one of the worst.
These powers have been granted to our law-enforce-
ment agencies because it seems necessary that such
a power to prosecute be lodged somewhere. This
authority has been granted by people who really
wanted the right thing done—wanted
crime eliminated—but also wanted the
best in our American traditions pre-
served.
Any prosecutor who risks his day-to-
day professional name for fair dealing
to build up statistics of success has a
perverted sense of practical values, as
well as defects of character. Whether
one seeks promotion to a judgeship, as
many prosecutors rightly do, or
whether he returns to private practice,
he can have no better asset than to
have his profession recognize that his
attitude toward those who feel his
power has been dispassionate, reason-
able and just. The federal prosecutor
has now been prohibited from engaging in political
activities. I am convinced that a good-faith accept-
ance of the spirit and letter of that doctrine will
relieve many district attorneys from the embarrass-
ment of what have heretofore been regarded as
legitimate.
In the enforcement of laws which protect our
national integrity and existence, we should prose-
cute any and every act of violation, but only overt
acts, not the expression of opinion, or activities such
as the holding of meetings, petitioning of Congress,
or dissemination of news or opinions. Only by
extreme care can we protect the spirit as well as the
letter of our civil liberties, and to do so is a
responsibility of the federal prosecutor. We must
bear in mind that we are concerned only with the
prosecution of acts which the Congress has made
federal offenses.
Just as there should be no permitting of local con-
siderations to stop federal enforcement, so there
should be no striving to enlarge our power. The
qualities of a good prosecutor are as elusive and as
impossible to define as those which mark a gentle-
man. And those who need to be told would not
understand it anyway. A sensitiveness to fair play
and sportsmanship is perhaps the best protection
against the abuse of power, and the citizen’s safety
lies in the prosecutor who tempers zeal with human
kindness, who seeks truth and not victims, who
serves the law and not factional purposes, and who
approaches his task with humility.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
POWER-HUNGRY?
US President Donald
Trump is trying his
best to get around
the legal system but
the constitutional
consequences would
be disastrous

ContentsVOLUME XI ISSUE 28
MAY28,2018
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6 May 28, 2018
Taming the Web
From marketing of dubious drugs, fraud and fake news to data mining for poll management,
the internet has presented lawmakers with new challenges. The question is, can it be regulated?
LEAD
12
Democracy on Trial
The Supreme Court steps in to avert a constitutional crisis and ensure that BS Yeddyurappa
stays down, paving the way for the largest coalition to form the government in Karnataka
POLITICS
20
Ethics and the News
Though the Madras High Court has said that forwarding a message is equal to accepting and
endorsing it, it is debatable as to what is fake news. It is all a matter of perception
18

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Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................35
International Briefs..........39
Media Watch ..................49
Satire ..............................50
FOCUS
Lokpal a Lost Cause?
Senior advocate Mukul Rohatgi is now “eminent jurist” on the panel
to select an anti-graft ombudsman, but the wait won’t get shorter
30
Court Is Kingmaker
While the Madras High Court has reserved its order on the disqualification of 18
AIADMK MLAs, it has dismissed a similar petition from the DMK, leading to confusion
42
44
New guidelines
introduced by the Kerala
government for schools
functioning under the Central
Board of Secondary
Education have been
slammed by the top court,
which upheld the High Court
verdict rejecting them
Left Schooled
GLOBALTRENDS
48Giants Get
a Warning
Citing lax treatment of corporate malefac-
tors, Rohit Chopra (above), the new US
Federal Trade Commissioner, has called for
the body to impose more significant
penalties when companies violate its orders
Cover Design:
ANTHONY LAWRENCE
Fading Glory
The Taj needs experts from different
fields to restore it to its pristine beau-
ty rather than a bureaucrat-ridden
and ignorant ASI, which was pulled
up by the Supreme Court recently
ENVIRONMENT
36
SPOTLIGHT
The Spy
Who Wasn’t
The apex court has ensured
that the reputation of Nambi
Narayanan, the ISRO scientist
wrongly accused of espionage,
stands restored
32
Shot in
the Arm
The chief minister has
assured advocates in
Madhya Pradesh that a bill
containing provisions to
protect them will be tabled in
the assembly soon
40
STATES
COLUMN
Crime and Abetment
Congress MP Shashi Tharoor will fight the Delhi Police chargesheet
accusing him of having played a role in his wife’s death
28
IBC, a Work in Progress
Though a panel wants the Insolvency and Bankruptcy Code
amended to treat home buyers as creditors, it is yet to fructify
24
MYSPACE

8 May 28, 2018
“
RINGSIDE
“Irrespective of mer-
its, very gracious of
SC to fix hearing at
145 at ct no.2. Shows
that justice never
sleeps & accessibility
is 24*7, where merits
so demand....”
—Advocate Abhishek
Manu Singhvi tweet-
ing on the late-night
hearing in the SC
“Siddaramaiah is
the only man
responsible for the
defeat of the
Congress. His rude
behaviour, attitude…
he ignored the senior
leaders of the
Congress, he gave
tickets to whomsoev-
er he wanted… All
these are responsible
for the defeat of
the Congress.”
—Former Speaker of
Karnataka assembly
Krishnappa Koliwad
“The roads are not
easy for our youth in
any profession. I
could not have be-
come an MP at the
age of 29 years if I
was not born in a
political family....
Political parties must
allow fresh blood
from apolitical line-
ages to contest in
Lok Sabha.”
—BJP MP Varun
Gandhi, alluding to
dynasty politics
“Kapoor is also my
father’s name. So it
is a man’s name any-
way. I chose to keep
both. Anand has also
changed his name
but nobody wrote
about that. I just
decided to do it on
social media because
that’s my platform to
say I have made a
choice....”
—Sonam Kapoor on
taking her husband
Anand Ahuja’s last
name after marriage
"The TMC has won 90 percent of the seats. Even
the prime minister has spoken about the
violence. He spoke against us, but we did not
retaliate. He has spoken because some BJP
leaders have said so, without checking facts….
This trend is crossing all limits.”
—West Bengal CM Mamata Banerjee, after sweeping the
three-tier panchayat polls in the state
“You may be aware
that the former L-G
is suffering from
severe illness and he
regretted what he
did with AAP govt.
Harassing my widow
sister besides the
constant harassment
of AAP govt is
inhuman....”
—Arvind Kejriwal's
wife, Sunita, in a tw-
eet to the Delhi LG on
her nephew’s arrest in
an alleged PWD scam
“Our stand is that
Army is a very
responsible organisa-
tion and we all are
proud of them…if
the Army has taken
up an issue, that is
required to be ans-
wered appropriately
by him or by any
other person.”
—Chief spokesperson
of J&K BJP Sunil
Sethi, on a house built
by Speaker Nirmal
Singh’s wife near the
Nagrota Army depot
“Who is safe under
the BJP rule?
Women are raped
every day. Those who
are caught are
released after com-
promises. In most
such cases, BJP lead-
ers and RSS men are
involved....”
—MP Congress leader
Manak Agrawal

New Delhi has decided it is time to
change the focus of its foreign policy
which revolved around the US. Now, the
new approach is to pay more impor-
tance to neighbours to prevent them
getting too close to China—Narendra
Modi’s trip to Nepal was part of the new
strategy. All other neighbours, even the
Maldives, despite extreme provocation,
have been subjected to a charm offen-
sive. The diplomatic outreach includes
countries getting close
to Pakistan.
Modi discussed
Pakistan’s terror tactics
with President Xi in
Wuhan and next week,
he meets Vladimir Putin
(Russia is negotiating
arms deals with
Islamabad). Another
Pakistan ally, North
Korea has also just
received a rare visit by
an Indian minister,
General VK Singh (left).
Simultaneously, Delhi
has restarted the stalled
Raisina Dialogue with
Pakistan, also known as
Track II, where informal but secret talks
are held between retired IFS, IAS, armed
forces and academics and intelligence
officials, from both sides, acting on
behalf of their governments. The
Ramzan ceasefire break in J&K would
also suggest that the big brother
approach to smaller neighbours has
boomeranged and the pressure on Delhi
by China, the US and others is for a
resumption of formal talks with Pakistan.
Track II is a baby step in that direction.
An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
As is typical of the Modi-Shah combine,
they are taking no chances when it
comes to the 2019 general election. The
ministry of information and broadcasting
has been tasked with hiring people
familiar with social media across 716
districts in the country. Their job will be
to monitor local media outlets—newspa-
pers, blogs, radio, television and cable
channels—and prepare reports which
will basically reflect the mood of the
people in a particular region.
In essence, they will be freelance
eyes and ears of the government to pro-
vide feedback which will then determine
the NDA’s election strategy. The ministry
has already sanctioned `20 crore for the
project. The priority is to monitor any
criticism of the government, whether
state or central, as well as projects and
programmes. They will also be tasked
with countering any fake news or propa-
ganda put out by rival parties. The free-
lancers will be connected to a special
digital platform which will support all
important social media giants like
Facebook, Twitter, Instagram, Tumblr,
Pinterest and YouTube. The ministry has
put out a tender inviting companies
operating in the social media field to bid
for the project.
AN EYE ON 2019
He is India’s most eligible bachelor, now
getting a bit long in the tooth, so is mar-
riage an option? It would seem so, jud-
ging by the rumours that started circul-
ating last week. They started after a
meeting between the family of veteran
Congressman Akhilesh Singh and So-
nia, Rahul and Priyanka. The focus was
on Aditi Singh, also a Congress mem-
ber. She contested the UP elections
from Rae Bareli Sadar and won, and is
now an MLA like her father. She is also
an attractive, articulate 30-year-old who
would be a perfect match except she
has denied any such alliance in a tweet,
saying the rumours were meant to dis-
tract Rahul from the Karnataka polls. So
he remains Bachelor Number One.
RAHUL’S SINGLE
STATUS?
Now that he has been elevated to inde-
pendent charge of the I&B Ministry,
Rajyavardhan Singh Rathore seems to
be the man to watch out for. He used
the Doordarshan platform to deliver an
impromptu monologue praising the
prime minister and attributing the Karna-
taka results to the Modi effect on the re-
sults in Karnataka. Apart from his succ-
ess in heading the Commonwealth
Games Indian team, Rathore seems de-
stined for greater things—possibly, if the
scuttlebutt in South Block is to be belie-
ved, as a replacement for CM Vasundh-
ara Raje before the Rajasthan elections.
RATHORE’S RISE
FOREIGNTIESRESET

The Supreme Court acquitted
cricket-turned-politician Navjot
Singh Sidhu in the December
1988 road rage. It observed that
medical evidence does not con-
clusively say that the victim died
just because he was beaten up by
Sidhu. However, Sidhu was asked
to pay a fine of `1,000 as the
Court felt he was guilty under
Section 323 of IPC for causing
hurt. Although the Section also
mandates a maximum jail term
of one year, the Court did not
consider that option due to sever-
al factors.
The road rage incident
involved Gurnam Singh, Sidhu
and a friend of his. According to
the prosecution, they had a heat-
ed discussion after which Sidhu
beat up Singh and fled. Singh
later died.
A two-judge bench overruled
the December 2006 verdict of the
Punjab and Haryana High Court
which had held Sidhu guilty of
culpable homicide not amounting
to murder, and sentenced him to
three years of imprisonment. After
going through all medical reports
carefully, the top court ruled that
the High Court had erred in con-
victing Sidhu.
Sidhu, who is a tourism minis-
ter in the Punjab
government,
was acquitted
by the trial court
in September
1999. He had
appealed
against the
verdict in
the SC
which sta-
yed his
conviction.
Navjot Sidhu let
off by SC in road
rage case
While showing concern over the deplorable
situation in Delhi as far as water, garbage
disposal and pollution are concerned and lack
of prompt action to tackle the problems head-
on, the Supreme Court gave sanction to the
centre to go ahead and amend the 2021 Mas-
ter plan of the city. It, however, insisted that the
centre must take into account all objections
raised on amendments before finalising the
changes. On the centre’s submission that it
was ready with a much more stringent “action
plan” to tackle illegal and unauthorised con-
structions in Delhi, the Court asked DDA to
publicise the plan properly by issuing notifica-
tions in newspapers for three consecutive
days. On the issue of corruption in civic agen-
cies raised by Attorney General KK Venugopal
appearing for the DDA, the Court felt that there
was a need to suspend erring officials.
Courts
10 May 28, 2018
Centre gets the go-ahead for Delhi Master Plan
Following two stern warnings from the Sup-
reme Court, the last one with a 24-hour
deadline, the draft Cauvery Management Board
Scheme was finally submitted to the apex
court. It was presented by Attorney General KK
Venugopal. The Court took a day to study the
draft and on May 18, the bench headed by
Justice AM Khanwilkar said that it found that
the draft was in consonance with its February
16 order. The Court, therefore, ordered that the
centre must now implement it. The bench said
that it found that the draft also conforms to
Section 6A of the Inter-State River Water
Disputes Act.
The Court, satisfied that the draft had
adhered to the principles laid down by it, also
dismissed the petition by Tamil Nadu to initiate
contempt proceedings against the centre. The
plea for contempt proceedings was filed
because the centre had failed to submit the
draft despite several warnings from the Court.
The Union government had been postponing it
under some pretext or the other—first saying
that the cabinet members were in Karnataka
campaigning for the assembly elections, and
later saying that the current political situation
in Karnataka meant that the leaders were not
available for consultations. The Court rejected
all the excuses and gave a stern 24-hour dead-
line, which Venugopal did not miss. The origi-
nal deadline for this was February 16. The
Court also rejected suggestions on the scheme
of the Karnataka and Kerala governments, say-
ing they were “devoid of merit”.
SC passes Cauvery draft plan

The five members of the SC
Collegium passed a resolution
based on its May 16 meeting on the
selection of judges for the top court.
The resolution called for “further
deliberation and broad-based consid-
eration” regarding the “names of the
chief justices as well as judges of
the High Courts” who are yet to be
elevated to the top court. “The meet-
ing stands deferred to be held at the
earliest,” the resolution added. The
May 16 meeting had failed to reach a
consensus on the names of High
Court judges that could be recom-
mended to the centre for appoint-
ment as judges of the top court. As a
result, even the name of Uttarakhand
chief justice, KM Joseph, could not
be sent to the government. The
Collegium had earlier stuck to its
decision on Justice Joseph’s name,
despite reservations from the centre.
However, it felt that Justice Joseph’s
name should be clubbed along with
the names of other judges. The apex
court breaks for summer vacation till
July 3 and one of the Collegium
members, Justice Chelameswar, will
retire on June 22.
The CBI informed the Delhi High
Court that a blue corner notice
had been issued against Baba
Virendra Dev Dixit in order to locate
him. Dixit is accused of illegally con-
fining women and children at his
Rohini ashram in Delhi. Dixit was last
seen in Nepal, the agency informed
the Court. The women and minors
had been allegedly imprisoned at the
Adhyatmik Vishwa Vidhyalaya Ash-
ram at Rohini. The CBI also said that
a committee had been formed with
one member each from AIIMS and
IHBAS to study the mental and phys-
ical condition of the victims.
Collegium meets
again, but no result
on judges’ selection
Blue corner notice against Baba Dev Dixit
The Delhi High Court ordered a CBI
inquiry into the conduct of prison
officials who allegedly assaulted sev-
eral inmates in Tihar Jail last year
in November.
Acting Chief Justice Gita Mittal
and Justice C Hari Shankar while
observing that custodial violence
can’t be condoned, ordered the
probe after concerns of fundamental
and human rights violations were
raised by two fact-finding commit-
tees that the two-judge bench had
set up soon
after the inci-
dent. While 18
injured inmates
had reportedly been confined inside
their cells for over two hours without
treatment, four injured Tamil Nadu
State Police personnel were immedi-
ately taken in an ambulance to DDU
Hospital although they had minor
injuries. The High Court directed that
reports of both the committees be
handed over to the CBI.
Delhi HC orders CBI probe
against Tihar officials
—Compiled by India Legal team
The right to life and personal liberty as
enshrined in Article 21 of the Constitution as
a fundamental right is also applicable to arrests
made under the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act,
1989, the apex court observed. It was hearing a
review petition filed by the centre against the
changes in the Act directed by the top court in
its March 20 judgment. The Court felt that a
person can’t be arrested under the Act merely
on the basis of a complaint. A “fair just and
reasonable procedure” must be followed to
ascertain whether the accusation is true or
false, it observed.
The Court had introduced the provision of
“anticipatory bail” applicable in cases where
there is no room for building up a prima facie
case against the accused. Section 18 of the Act
has no such provision. It also ruled that there
should be a proper vetting of complaints made
against the accused by authorities before an
FIR is registered. It felt that the Section was
being widely misused by vested interests for
political gains.
The centre contended that the safeguards
laid down by the Court are against the very
essence of the law itself, which has been enact-
ed by Parliament. The matter will again come up
for hearing after the Court’s summer vacation.
Article 21 is paramount,
even in SC/ST Act

Frommarketingdubiousdrugs,onlinefraudsandfakenewsto
dataminingforelectionmanagement,theinternethaspresented
lawmakerswithnewchallengesanddangers
By Neeraj Mishra
Lead/ Dangers of Internet
HREE years ago in a small
central Indian town, all
supermarket and general
store shelves suddenly
started displaying
American apple cider. The
product descended on the town after a
whirl of WhatsApp and Facebook mes-
sages to its residents extolling apple
cider as the elixir of life. Suddenly, every
health fanatic and his aunt was looking
for apple cider instead of time-tested
Dabur honey and Chyawanprash.
Shopkeepers who could barely pro-
nounce apple cider were offering it with
Patanjalic assertion of its benefits.
It is immaterial here whether
American cider is effective against
heartburn or not. What it has done
T
12 May 28, 2018
Cyberia:
Can the Beast
be Tamed?

government forgets that the online
media and other sources are already
monitored specifically by the IT Act.”
However, Section 66A of the
Information Technology Act, 2000
(revised in 2008), has already been
struck down by the Supreme Court as
violative of Article 19 of the
Constitution. “No law which seeks to
curb freedom of speech can stay the
course,” said senior Supreme Court
lawyer AK Dubey.
Malaysia has just introduced the
“first in the world” anti-fake news law. It
seeks to punish violators with six years
in prison. Mahathir Mohamad, who has
returned to the presidency after 10
years, has not sought to withdraw it in a
hurry. Chancellor Angela Merkel of
through clever use of social media and
surreptitious use of mobile number
pools of a small town has established it
as a necessity in the minds of a gullible,
underexposed public.
The same goes for sugar daddies who
have existed for long. Young women
kept by rich old men is nothing new, but
what has surprised even Los Angeles is
sugarbabies.com. This is a website that
actively seeks out such men for its regis-
tered users: young, beautiful women in
need of upkeep. A similar site, support-
me.com, invites participants to meet
and help young, desirable mothers with
kids. It’s a thinly veiled escort service,
though it ostensibly seeks to make a
more permanent arrangement for both
parties. In India, we simply ply
Facebook with sugar daddies, sugar
babies, hookers and pimps.
The cider example is less likely to
raise your hackles, whereas proposition-
ing and pimping are easily recognisable
criminal acts. Remember, every cyber
crime and its plausible punishment, just
like the internet, originates in the US.
The case of LeadClick Media, Inc, a dig-
ital promotions firm with a large affili-
ate network, is illustrative. It used a
similar trick of approaching people by
building up stories in the media through
its affiliate networks. These networks
provided LeadClick with case studies of
weight loss. One of LeadClick’s clients,
LeanSpa, used these examples to market
itself and it turned out to be fake. A US
court has now levied a heavy penalty on
LeadClick and held it liable for spread-
ing fake news.
Amidst reports about the govern-
ment of India’s keenness to exercise a
greater control over news sites, curb the
menace of fake news and unverified
sharing of defamatory content, it’s oblig-
atory that existing laws, their shortcom-
ings and remedial measures be reviewed
while assessing the general decline in
moral standards in society.
Various governments around the
world have tried to find ways to shackle
the growing influence of social media,
specifically that which concerns news
and fake news. A proposal by former
I&B minister Smriti Irani in this regard
was shot down by the prime minister’s
office but it is unlikely that we have
heard the end of it.
The new I&B minister, Rajyavardhan
Rathore, has indicated that he will be
taking a different line. He told media-
persons on May 15: “Prime Minister
Narendra Modi is very clear that the
media has to self-regulate. It is not us
versus them.” He said the media should
be the voice of the people and clarified
his stand in no uncertain terms. “We
hope social media users will be careful
about what they put out there. Social
media is totally independent and does
not come under this ministry.”
While his statement has been a salve
for the rising anxiety among journalists
when Irani took over, it remains to be
seen if the media will be again regulated
in some way. Aniruddha Bahal, editor of
Cobrapost.com, told India Legal: “The
PROFITS OVER PRIVACY?
Facebook CEO Mark Zuckerberg was recently
in the eye of a storm for having allowed
Cambridge Analytica to mine the data of his
network users for political purposes
UNI

thing that was way too difficult before
the net came into our lives, with its
cousins, 3G and 4G, armed with FB and
WhatsApp. The truth is researchers are
only just beginning to understand how
the internet influences people’s behav-
iour and new communication technology
is used to form and maintain relation-
ships, pursue interests, and otherwise
engage in a virtual world. What is under-
stood is that the internet efficiently con-
nects individuals who would previously
have been isolated from one another.
Importantly, this activity is done in rela-
tive anonymity, which contributes to
close relationship formations because of
reduced risks of self-disclosure. Thus, it
presents some unique opportunities for
deviant behaviour.
A study conducted by Harvard
University reported: “People have always
lied, cheated, and stolen, but the inter-
net enables some of us to do it more
easily, quickly, and cheaply.” It also con-
tends that the internet provides a fertile
breeding ground for groups interested
in extreme or negatively viewed behav-
iour. Another study says that many
casual web surfers are easily tempted
by hardcore pornography. When im-
pressionable minds view this content,
they are also comforted by a false sense
of being part of a group which approves
of sexual deviance. It has resulted in
rise of paedophilia, child rape and rape
in general in the past five years. There
is no study, however, which links the
rise in sex-related crimes with the
arrival of faster net or 4G.
The arrival of the net has provided a
significant boost to all variety of crimi-
nal activity. But to limit our vision and
seek control of news contents alone
could be the worst mistake the govern-
ment could make.
Criminal activities supported by the
net can be divided into four groups and
to some extent have been addressed by
the IT Act:
Outright, visible criminality: This
ranges from theft to intimidation,
blackmail, virtual fraud, sale of arms,
etc. It also includes paedophilia and
other sexual offences. It creates hate
groups and spreads divisive messages.
AstudyconductedbyHarvardUniversity
reportedthatpeoplehavealwayslied,
cheated,andstolen,buttheinternet
enablessomeofthemtodoitmore
easily,quickly,andcheaply.
14 May 28, 2018
Nodearthoflaws
Do we need more laws for illegal
acts when they are already
in place?
Germany is the other leader who is con-
templating a similar law. It is no sur-
prise that both countries have a history
of muzzling freedom of speech.
The point here is that it is not limited
to free speech or press freedom alone.
We already have a robust IPC and other
penal acts for almost everything that is
violated on the net (see box). Why do we
need more control and how will it be
achieved? What can be done to remedy a
situation where an entire society is com-
mitting crimes on a daily basis because it
is easy to do so? It’s easy to hide behind a
computer or mobile screen and extort,
plan a murder or heist, commit fraud,
whore, pimp, troll and do almost any-
Posting defamatory comment or
material against someone—Offence
under Section 66A of the IT Act, now
struck down, but continues to be an
offence under Sec 499, IPC
Posting or selling pornographic
material on the net—Offence under
Sections 292, 292A, 293, 294, IPC,
punishable with imprisonment
Posting secret information, govern-
ment documents, photographs of pro-
hibited places—Punishable for the
violation of Official Secrets Act
Posting copied material on the web-
site—Offence under Copyright Act
Online sale of drugs—Covered
under NDPS Act
Online sale of arms—Prohibited
under the Arms Act
Theft of hardware—Tackled under
Section 379, IPC
Web jacking, email abuse, criminal
intimidation and anonymous commu-
nication—Fall under Sections 506,
507, 500 and 383 of the IPC
Paedophilia and solicitation—Dealt
with under IPC and SITA
There are no laws to restrict data
mining and Aadhaar data sharing
as the case is still sub-judice in the
apex court
“PrimeMinisterModiisveryclearthat
themediahastoself-regulate.Itisnotus
versusthem...Socialmediaistotally
independentandnotunderthisministry.”
—RajyavardhanRathore,I&Bminister
“Makemostofthecyberoffences
cognisablelikewedoundersome
sectionsoftheIPC.Theincidenceof
suchcrimeswillthencomedown.”
—GPSingh,IGP,Chhattisgarh

Defamation and trolling: People
who knowingly or unwittingly indulge in
acts which may be described as defama-
tory under the law. Virtual stalking and
trolling seems easy for a perpetrator on
the net, but can be harrowing and
mind-numbing for the victim.
Monetary frauds: These fraudulent
acts use the net or its many tools to
defraud banks, individuals and compa-
nies. The net and mobile apps are also
frequently used for insider trading to
knowingly defraud an entity.
Civilian in Nature: Like copyright
infringement, digital signature frauds,
travel and hotel booking frauds and
bypassing tax laws, including FEMA
and Goods and Services Tax, are
achieved through multiple identities.
A fifth category has emerged wherein
all net and mobile applications are
being deployed to conduct electioneer-
ing. Though there is nothing strictly
criminal about conducting surveys, col-
lating user profiles and disseminating
information and seeking votes through
WhatsApp, a subtext of immorality runs
through it. This includes capturing data
without the knowledge of the FB user or
analysing an individual’s shopping and
medical records. Plying his inbox with
well-directed marketing campaigns
based on his preferences and cleverly
cajoling him towards a particular party
is all very new and the law is still not
ready to deal with data mining compa-
nies like Cambridge Analytica.
Coming to electioneering fraud, an
estimated 15-20 lakh WhatsApp mes-
sages were sent by the BJP and its sup-
porters alone on a daily basis for at least
six months during and before the re-
cently concluded Karnataka elections.
The Congress and other parties may not
be able to match this, but multimedia
messaging is now standard practice in
any election. The sad part is that most
of the messages are either defamatory in
nature and target the opponent or delib-
erately misrepresent facts through clev-
erly edited videos, superimposed or
morphed pictures and voiceovers.
Some countries like Mexico have spe-
cially designed WhatsApp sites where
the authenticity of any message can be
verified. These are government-run sites
and provide an instant reply. In India
too, there are several websites like
Altnews which verify the truth of mes-
sages and images through search
engines, but their reach is still very lim-
ited. A few TV channels run shows on
verification of viral news and videos but
their interest area and time are extreme-
ly limited. Yet, images exchanged
through WhatsApp can damage reputa-
tions in front of a gullible public. This
was brought out by Altnews recently
when it showed Sonia sitting on the lap
of the Maldivian president through
some clever photoshopping. But even as
the fake picture was being verified, it
had received 36,000 forwards within
seconds. Ursula Andress’ pictures from a
Bond movie in a ’60s-style bikini have
also been passed around as Sonia’s in
her “bohemian years”.
The Madras High Court in a recent
judgment has stated that anyone for-
warding any social media message
FAKE NEWS VS
FREE SPEECH
(Clockwise from above
left) While journalist
Aniruddha Bahal cites the
IT Act to say that India
monitors its social media,
Mahathir Mohamad’s
Malaysia is the first
country to have a law
against fake news.
German Chancellor
Angela Merkel is another
leader contemplating a
similar law
UNI
UNIAnil Shakya

will also be held guilty under the IT Act
because forwarding any message means
endorsing its contents. So simply writ-
ing “forwarded as received” will not be
considered sufficient defence if the mes-
sage is deemed defamatory or falls
under any other prohibited section of
the IT Act. And even though Section
66A has been struck down, the courts
have retained Section 69A and 69B of
the same Act which allows the govern-
ment to control, block and monitor any
cyber communication.
Still, can anything substantial be
done to tackle the enormous amount of
criminality involved in the use of cyber
space on a daily basis by a very large
population? “The first thing that can be
done is to make most of the cyber
offences cognisable like we do under
some sections of the IPC. The incidence
of such crimes will then come down. At
present, the police acts only on a com-
plaint,’’ said GP Singh, Inspector
General of Police in Chhattisgarh. That
may or may not be the ideal way to
deal with it since 66A provided that
teeth, but was found too draconian by
the courts. Yet there is truth in what
Singh says—if the police were to take
note of cyber offences in the same way it
does murder, theft or illegal possession
of drugs and arms, then it could make
a difference.
A viable alternative seems to be to
make perjury a crime. We have bor-
rowed our penal code from the English
common law, but the hesitation as
regards perjury is mysterious. Witnesses
and accused lie all the time and unfortu-
nately, so do lawyers. Most developed
legal systems in the world do not take
lightly to falsehood in the courtroom. A
system where truth itself is a casualty
cannot work for long, certainly not in
the cyber world. Concealed identities
and duplicity afforded by cyberspace
suit us fine and with no fear of perjury,
cases are unlikely to see closure.
Police officers stress that though
every state has a cyber cell and some
experts, they are way behind technologi-
cal progress and nor do they have
sophisticated equipment or labs to tack-
le some of the smartest criminals in the
world. “At the moment, if the state
cyber cell is able to locate your stolen
mobile, it’s creditable,” said Kalpesh
Kamath, a 22-year-old cyber expert
often hired by Chhattisgarh police to
solve complicated cases.
Another difficulty is that 99 percent
of social media servers are located out-
side India, mostly in the US. If one
were to follow the origin of a tweet,
WhatsApp message or FB post, it would
usually land in Cambodia or Nigeria on
its way to the US or Russia. Only 4,500
complaints are registered annually in
India under the IT Act, while more than
20,000 defamation cases are registered
under the IPC. There are laws and more
laws for every issue. We are not at that
happy stage where the world has learnt
to deal efficiently with cyber criminals
or even trolls. However, we must not
stop looking. But please don’t attack
free speech.
16 May 28, 2018
Comingtoelectioneeringfraud,an
estimated15-20lakhWhatsApp
messagesweresentbytheBJPona
dailybasisforatleastsixmonthsduring
andbeforetheKarnatakaelections.
POWER OF
SOCIAL MEDIA
(Clockwise from
above) Cyber crime
accused after their
arrest; police arrive in
Ranchi after a
communal clash
triggered by a rumour
on social media;
the internet is used
by parties, including
the BJP, to mobilise
supporters
Photos: UNI

18 May 28, 2018
HEN journalist-
turned-politician S Ve
Shekhar casually for-
warded a social media
post suggesting that
women journalists
needed to sleep with their bosses to keep
their jobs, he found himself accused of
crimes under Sections 504 (Provoking
Breach of Peace), 505 (Public Mischief)
and 509 (Insulting the Modesty of a
Woman) of the IPC. Facing arrest,
Shekhar pleaded that he forwarded
“ideas” without great thought, whether
or not he agreed with them. In any case,
he argued that he had no intention of
committing a crime.
The Madras High Court was unim-
pressed. Words may be said in the heat
of the moment and regretted later, it
ruled on May 10, but putting such words
in writing meant that the author knew
the consequences of what he had writ-
ten. In culmination, the Court estab-
lished a remarkable new legal principle:
“Forwarding a message is equal to
accepting and endorsing the message.”
At a superficial level, those of us who
have suffered at the hands of compulsive
forwarders of perverse social media
trash will be gratified that the law now
requires citizens to behave like responsi-
ble adults. Some of us will probably be
relieved that it will now be a tiny bit
more difficult to circulate obvious fake
news without facing the consequences.
But there is a price to be paid here.
Gossip is a key tool for social bonding in
a wide array of cultures and gossip is
always replete with “fake news”.
If tattle was a problem, would
Shobhaa De even exist as a phenome-
non this side of Stardust? To put it in
perspective, it seems that sending a clip-
ping of a potentially defamatory news-
paper article now to a friend is the same
as defaming that person! For that, we
are all wide open to a range of potential
crimes on any given day.
MISREPRESENTED IMAGES
Take this example. On April 29, 2018,
union minister Piyush Goyal recycled
old NASA photos showing urbanisation
trends in India to congratulate PM
Modi for the spectacular “elimination of
darkness from the lives of fellow Indian
villagers”. It was later revealed that the
pictures were not taken the night after
India achieved complete electrification
but highlighted patterns of human set-
tlement. In connecting the old image
with the new reality, did the minister
become liable to a case of misrepresen-
tation and cheating (Section 415)
because of its impact on voters in
Karnataka? At what point does any
image or illustration acquire the
What is
Fake
News?
W FALSE PROPAGANDA?
Union minister Piyush Goyal was trolled for
tweeting satellite images which he claimed
were about electrification of India’s villages
but were actually NASA images highlighting
patterns of human settlement
ThoughtheMadrasHChassaidthat
forwardingamessageisequaltoaccepting
andendorsingit,itisdebatableastowhatis
fakenews.It’sallaquestionofperception...
By Ranjeev C Dubey

absolute obligation to represent the
truth, the whole truth and nothing but
the truth? Those who dislike intellectu-
alisations of everyday realities would
argue that this obscures the issue. Social
media circulates more easily identified
outrageous “lies” than “credibly possible”
forwards. What’s so hard about under-
standing that you cannot circulate a
news item about the death of a gorgeous
film star of yesteryears before she has
passed on? However, the plot coagulates
considerably when the news is not just
skeleton events but a narrative of it.
Often, news is very rarely just news.
A dog dying is not news. That he was
clubbed by the neighbour is news. That
the neighbour bit the dog, thus killing it
is even better news. News isn’t about
data reduced to their bare knuckle-
bones; news is real world stories worth
telling. How the story is told depends on
the paradigm—the frame of reference—
that is applied to the event.
Many gangsters have died in UP with-
in the last year. Are they dying because
the UP police is trampling on their
human rights in staged encounters or
are they dying because finally, the gang-
sters have lost political protection and
are getting what’s coming to them? If
these are indeed “encounters”, the
Supreme Court may enter the picture,
creating a narrative that could win or
lose elections. Isn’t that what happened
to UPA2 with the coal mine scam and
the 2G scam? Judicial activism created a
political narrative of corruption under
UPA2: six years later, the mining scam
is off the radar, Spectrum Raja is home
free but the Congress has been reduced
to 44 seats in the Lok Sabha. What
truth are we talking about? Should we
now have laws to regulate narratives?
EUROPEAN PLAN
Europe seems to think so. Many jour-
nalist bodies there have established new
trust and transparency standards for
their members to follow. Worried by
Russian meddling in elections across the
continent, Brussels is working towards a
Europe-wide plan to tackle fake news
online. How far will it go? Europe is
genetically more liberal than many other
parts of the world. It is hard to make a
fake news law that doesn’t also clearly
violate free speech.
The results may well be different in
societies like Malaysia where a jail term
of six years was imposed recently on
those who circulated fake news. Critics
argued that the government of the day
merely wished to silence criticism of the
scandal surrounding the 1 MDB
(Malaysia's state development fund)
sovereign wealth that rocked the admin-
istration of the former prime minister,
Najib Razak. As Malaysia ranks 144th
out of 180 countries in the 2017 World
Press Freedom Index, this may not be
quite the benchmark to aspire to! The
bottomline is that for all our constitu-
tionally mandated “reasonable restric-
tions in the public interest”, it is difficult
for India to create a law to regulate the
venomous hate-spewing and outright
lies in social media because of our new-
found sympathy for liberal thought.
The law also needs to help people get
a grip on the definition of truth. Are the
nomadic Gujjar tribe discriminated
against by the state or are they primitive
hunter-gatherers who do not recognise
property rights and will equally squat on
your wheat field, steal your apples, or
kidnap your cow without remorse? On
the determination of this question
depends our reportage of the Kathua
rape case and its associated conspiracy
theory. Is Kashmir’s political turmoil a
terrifying struggle of a besieged people
to free themselves from the Indian yoke,
or is it a vast extortion racket run by a
perverse set of cynical politicians who
escalate their demands every time the
flow of central assistance slows down as
it did when Modi came to power?
Almost every piece of news is capable
of being fake news. We could elevate the
debate further. Hindus certainly don’t
believe that the individual is supreme.
Yet, is there any practical evidence to
support the existence of a God or is that
fake news too? What about reincarna-
tion, karma, samsara, atman… to what
legal standard will you verify the truth
of these things before you forward a feel
good message of piety and kind cheer?
If you stop long enough to think about
it, very little of who you are is anything
more than an arbitrary, ideological con-
struct untested against available evi-
dence. “Truth” can easily be argued as
mainly a projection of the ideological
baggage one carries in one’s head.
In a world where metaphysical con-
cepts cannot be “proven” by legally
recognised evidence, any law that deals
with fake news would not counterpoint
truth against falsity: it will cherry-pick
permissible fake news versus impermis-
sible fake news!
—The author is a managing partner
of Gurgaon-based corporate
law firm N South
Twitter: @inalienability
Website: www.inalienability.com
Contact: editor@inalienability.com
Whenjournalist-
turned-politician
SVeShekhar
forwardedaregressive
postaboutwomen
journalists,hefound
himselffacingarrest.
Helaterarguedthathe
hadnointentionof
committingacrime.

away its MLAs to a five-star resort, but
not before some high drama when HAL
airport authorities refused permission
for the chartered aircraft to take off,
leaving the pampered MLAs to travel in
a convoy of luxury buses.
The drama began as a head count
was taken to see if any MLAs were miss-
ing--panic set in when one was declared
absconding, only to be found taking a
dip in the pool. The tension carried on
and was only broken when the resort
owner jokingly declared that he had 117
MLAs with him and he should be made
chief minister. Unlike in Goa and
Manipur, this time, however, the
Congress was well-prepared. A battery
of its legal luminaries led by Abhishek
Singhvi approached the Supreme Court
which saved the day for the Congress,
and for democracy. Refusing to agree to
governor Vallabhai Vala’s 15-day grace
period for Yeddyurappa to prove his
majority on the floor of the House, it
ordered a floor test within 24 hours.
Knowing that he would not be able
to get the nine extra MLAs needed,
Yeddyurappa resigned ahead of the floor
test. Earlier in the day, the apex court
had rejected the Congress-JD(S) peti-
tion to remove KG Bopaiah as pro-tem
speaker ahead of the floor test and
appoint the seniormost legislator, RV
Deshmukh, in his place. Lawyers Kapil
Sibal and Singhvi questioned his suit-
Politics/ Karnataka
EW state elections have wit-
nessed such desperation and
naked hunger for power at
any cost. Falling short of the
required numbers to form a
government on its own, an
ideologically friendly governor threw the
Constitution and democratic norms to
the winds and declared BJP’s BS
Yeddyurappa as the chief minister. This
followed a cliffhanger of an election
where the BJP fell short of a majority by
seven votes while the wily JD(S) leader,
HD Kumaraswamy, pitched his lot with
the Congress to present a combined tally
of 115 seats. Knowing from recent expe-
rience that BJP President Amit Shah
has the Midas touch when it comes to
getting MLAs to switch sides by hook or
by crook and to turn a legislative minor-
ity into a majority, the Congress whisked
F
Democracy’s Finest Hour
20 May 28, 2018
CONVINCING VICTORY
With CM BS Yeddyurappa resigning before
the floor test in the state assembly, the
decks are clear for JD(S) state chief HD
Kumaraswamy (left) to take over
Photo Courtesy: Facebook
Failingtogetthenumbers,BSYeddyurappaquitsasCMamidstahugeembarrassmentforthe
BJPanditsattemptstoformagovernmentinthestatethroughthebackdoor.Itmarksthe
SupremeCourt’sfinestmoment
By Stephen David in Bengaluru
UnlikeinGoaandManipur,theCongress
waswell-preparedthistimeanditsbat-
teryoflegalluminariesled byAbhishek
SinghviapproachedtheSCwhichsaved
thedayforthepartyanddemocracy.

ability for the post and quoted his past
record, referring specifically to an earlier
stint when his action of expelling 13
JD(S) MLAs had invited the wrath of
the apex court.
W
hen the lawyer duo brought
up the matter this morning,
the Court said it could be
taken up, but the floor test would then
have to be postponed. The lawyers
immediately withdrew their petition.
They then demanded that while
Bopaiah be allowed to administer the
oath, he be refrained from conducting
the vote for which another pro-tem
speaker be named. The Court’s answer
to this was that it did not have power to
say who should be speaker. The legal
team then asked for live telecast of pro-
ceedings, to which the additional solici-
tor general assured the Court that the
government had facilitated all national
and Kannada channels live coverage of
the proceedings of the assembly.
In the end, the calculations and
machinations of the BJP’s magic duo of
Narendra Modi and Amit Shah went
awfully awry. Yeddyurappa was floored
by the sheer logistic skills of the
Congress-JD(S) combo that held on to
its legislators across hotels in Karnataka
and Telangana. Until yesterday,
Yeddyurappa was hopeful of cobbling up
the numbers from the Congress and the
JD(S) thanks to the 15-day window that
Vala gave him when he invited him on
May 16 to form the government on the
basis of being the leader of the single
largest party. But thanks to the Great
Wall that the Congress-JD(S) parties
built for themselves, the BJP could not
breach it, although it made several
attempts to do so.
More than the political acumen or
skulduggery that the Congress or the
JD(S) may claim to have, it was the
timely intervention of the Supreme
Court that brought the smiles back on
the faces of the new chief minister hope-
ful, Kumaraswamy, and the Congress
legislators who are hoping to get some
of their portfolios back.
BJP did not have the numbers in the
first place, but the governor, an old asso-
ciate of Modi from Gujarat, gave the
party a long rope. The numbers were
stacked against him: the Congress-
JD(S) had stitched up a post-poll
alliance and had the requisite majority
to form the government but the gover-
nor spurned their offer to parade
their numbers.
The BJP did not expect the Congress
to knock on the doors of the Supreme
Court in the night as the governor’s let-
ter to Yeddyurappa had asked him to
take the oath of office the next morning
in a plan that was hastily put together
by what in Karnataka has come to be
known as the 3Gs (three Gujaratis:
Modi, Shah and Vala).
B
JP lawyers tried hard to borrow
time from the Supreme Court
but the judges heavily sliced the
15-day window to just 24 hours, leaving
little time for logistics experts to mop up
the additional numbers needed to win
the floor test. There were hopes of mem-
bers cross-voting or abstaining from the
vote of confidence, but the Congress
had logistics experts like DK Shiva-
kumar who ensured that the flock
stayed together.
Shivakumar, in fact, is the most net-
worked man in the state. He is the go-to
man in a crises. In August last year,
party chief Sonia Gandhi tasked him
with keeping Gujarat MLAs safe in
Bengaluru to help her close aide Ahmed
Patel win the Rajya Sabha election in
Modi's home state. Patel won, thanks to
Shivakumar's organisational skills. But
his skills were rewarded with raids from
the central government agencies like the
IT and the ED. But once again, it was
his organisational skills that came in
handy for the Congress.
The Congress also played its cards
close to the chest: it sprang up surprises
that caught the BJP managers unawa-
res. “We wanted to keep some things
EASY COME, EASY GO Karnataka governor
Vajubhai Vala (right) administering oath to BS
Yeddyurappa at Raj Bhavan on May 17. He
resigned on May 19
Intheend,themachinationsofBJP’s
magicduoofNarendraModiandAmit
Shahwentawfullyawry.Yeddyurappa
wasflooredbythesheerlogisticskillsof
theCongress-JD(S)combo.
UNI

Politics/ Karnataka
22 May 28, 2018
as a surprise till the last minute so that
the other side is caught unawares,” for-
mer home minister and Congress legis-
lator Ramalinga Reddy said. Reddy’s
daughter Sowmya is hopeful of winning
the June 11 assembly polls from Jaya-
nagar after the election was counter-
manded with the death of the BJP can-
didate there. The rabbits that the
Congress pulled out of its hat on the day
of the floor test included audio clips fea-
turing BJP leaders reaching out to Con-
gress legislators with offers of money
and ministerial posts. In one clip,
Yeddyurappa is heard luring Congress
MLA BC Patil to cross over to his side.
In another clip, two BJP leaders reach
out to another MLA’s wife over the
phone with a promise of liberal funds.
JD(S) supremo and former prime
minister HD Deve Gowda, who was cel-
ebrating with his 85th birthday at the
Tirumala temple on May 18, could not
have got a better birthday gift than hav-
ing his political bete noire paving the
way for his son Kumaraswamy to take
over as Karnataka’s 30th chief minister.
S
eldom in recent history have the
government’s top legal officers
been put through the wringer by
the country’s highest court as they
were on two successive days last
week. Not only did the three-member
bench of the Supreme Court reduce
the 15 days time that Karnataka gover-
nor Vajubhai Vala gave the new govern-
ment to prove its majority to 24 hours, it
chided senior government lawyers,
including Attorney General KK
Venugopal.
No sooner had Vala, a veteran RSS
hand who is known to be close to
Prime Minister Narendra Modi, extend-
ed the invitation to BS Yeddyurappa to
take oath as chief minister than
Congress leaders and lawyers knocked
on the doors of the Supreme Court
seeking permission
for an urgent hear-
ing. The midnight
hearing went on for
more than three
hours and is said to
be the first time
since July 2015 that
the apex court met
in the night to take
up an urgent mat-
ter. In 2015, it took
up Bombay blasts accused Yakub
Memon’s appeal against his death sen-
tence. The Court had rejected the
appeal and Memon was hanged the
next morning.
About an hour past midnight on
May 17, word was out that a three-
member bench headed by Justice AK
Sikri and comprising of Justices Arvind
Bobde and Ashok Bhushan would hear
the matter. As soon as the arguments
began, Abhishek Manu Singhvi,
appearing for the Congress, contended
that the swearing-in be deferred and
that the time given by the governor be
lessened as it was a “constitutional sin
giving a fillip to poaching” of MLAs by
the BJP. Venugopal created a flutter by
stating that the anti-defection law takes
effect only after elected representatives
take oath and are sworn in as MLAs.
Justices Sikri and Bhushan were quick
to retort: “Does it imply that suitcase
exchanges are made possible before
the MLAs are sworn in. That is imper-
missible.”
Former attorney general Mukul
Rohatgi also caused a few raised eye-
brows when he appeared to question
the decision of the Congress to seek
an urgent hearing. “This is not a case
that deserves a midnight hearing,” he
said more than once during the course
of the night. “Are the heavens going to
fall if the swearing-in takes place?” he
asked and added: “I got a call when I
was sleeping. Some two MLAs saw it
on TV and called me. Is this Yakub
Memon situation? It should have never
been heard at midnight.” Singhvi then
lashed out at
Rohatgi, accusing
him of trivialising
the situation.
Singhvi also
took a dig at
Venugopal. "It is
unfortunate that
under the central
government's
instructions, the
attorney-general—
who is a great man—demanded voting
by secret ballot during the trial of
strength. This has never happened in
history," he said, adding: "We know
what the purpose of secret voting is.
This tells another story of desperation:
the highest law officer of the country is
made to make such a demand."
The Congress party later claimed
that the apex court had agreed to most
of its demands. “We asked the
Supreme Court to change the pro tem
Speaker but for that, the floor test had
to be postponed. Hence, it was decid-
ed to live telecast the trust vote in the
Karnataka Assembly because we did
not want the process to be delayed.
And we are happy that the proceedings
will be transparent,” Congress leader
and advocate Kapil Sibal said.
SupremeCourt:Midnightdrama
SOUND STRATEGY
Congress president Rahul Gandhi with former
chief minister Siddaramaiah in Bengaluru
UNI

24 May 28, 2018
HAD predicted in my last column
on Insolvency & Bankruptcy Code
(Corporate Cauldron, December
24, 2017) that it would throw up so
many issues that the corporate
cauldron would not only keep bub-
bling but would froth and boil over from
time to time. My prognosis has proved
prescient with developments relating to
insolvency dominating the business and
financial landscape of the country dur-
ing the last five months with no abate-
ment in sight.
While new cases of insolvency have
also come in (Reliance Communication
is the latest!), the chaotic happenings in
this area have largely been due to three
factors—emergence of new and hitherto
unimagined issues in the insolvency res-
olution process, the plethora of legal
cases that different stakeholders have
initiated against one another and con-
flicting interpretations of the IBC by
warring parties. True, there has been
some forward movement in handling a
few major issues correctly, but total clar-
ity is yet to emerge.
One of the major issues that has seen
some traction is the treatment of home
buyers of under-construction apart-
ments when the insolvency/bankruptcy
of a housing infrastructure company is
being considered. At the moment, they
fit within the definition of neither
“financial” nor “operational” creditors.
Analysts, including this author, had
pointed this out as a major lacuna as it
deprives them not only of the right to
initiate insolvency proceedings, but also
leaves them out of the hierarchy of
claims. Worse, it deprives them of any
presence or say in the resolution process
or in the acceptance or rejection of a
resolution bid. Their status under the
I
My Space/ Insolvency and Bankruptcy Code Mukesh Kacker
The Cauldron Froths...
Thougha14-memberpanelhasrecommendedamendingtheCodetotreathomebuyersas
financialcreditors,itisyettofructify.TheSupremeCourthasnowsteppedintogivethemsuccour
ENDLESS FIGHT?
Jaypee home buyers demand a judicial
probe into the delay of their flat allotments
Photos: UNI

LEGAL WRANGLE (Above left) A Binani
Cement ad; (Left) former FICCI president
Sidharth Birla, SC judge Justice AK Sikri
and IBBI chief MS Sahoo at a conference
on insolvency
IBC became the subject matter of dis-
cussion after the admission of the
insolvency case brought in by IDBI
Bank against Jaypee Infratech, one of
the 12 cases picked out by the RBI in
June 2017.
There were a couple of other cases
too in this regard—Nikhil Mehta Vs.
AMR Infrastructure and Anil
Mahindroo & Anr Vs. Earth Organic
Infrastructure—where the National
Company Law Appellate Tribunal
(NCLAT), New Delhi, classified home
buyers of those companies as “financial
creditors”. But these judgments were
fact-specific and given because of the
specific terms of contract between the
home buyers and sellers. These cases
further put the spotlight on the rights of
home buyers and strengthened their
case. In addition, there were a couple of
writ petitions in the Supreme Court—
Chitra Sharma Vs. Union of India and
Bikram Chatterji Vs. Union of India—
where the Supreme Court made obser-
vations about safeguarding the rights of
home buyers under the Code.
The government had also realised
that it needed to take into account a
number of new issues, including the
home buyers’ issue, to make the insol-
vency resolution process meaningful
and effective. As reported earlier, the
government had, on November 17, 2017,
constituted a 14-member committee
under the chairmanship of the secretary,
department of corporate affairs, to
assess the functioning of the IBC and
examine issues that could impact the
framework prescribed under the law.
This committee, after examining many
emerging issues, finalised and released
its report on March 26, 2018.
I
t made nine main recommendations
for amending the Code. On the
home buyers’ issue, after consider-
ing the peculiarity of the Indian real
estate sector and reviewing the financial
terms of various agreements between
the buyers and the builders, the com-
mittee concluded that the disbursement
of money is in relation to the delivery of
a future asset and the amounts so raised
are used as a means of financing the
project. The committee, therefore, con-
cluded that the amounts so raised from
a home buyer fall within entry (f) of
Section 5(8) and may be classified as
“financial debt”. The home buyers,
therefore, are to be treated as financial
creditors by inserting an explanation to
Section 5(8)(f) of the Code. Accordingly,
in the resolution process, they will be a
part of the committee of creditors and
their claims will be met according to the
manner specified under Section 53. So
far so good, except that the amendments
recommended are yet to become a reali-
ty in law.
The committee also made a good
observation that the resolution plans
under the Code must be compliant with
the provisions of the Real Estate (Regu-
lation and Development) Act, 2016
(RERA). However, while it is true that
RERA gives powers to the regulator to
pass orders in favour of home buyers, it
has no powers to enforce its orders.
Also, RERA is silent on the eventuality
of the developer itself declaring insol-
vency. Thus, RERA also needs to be
amended to plug these loopholes and
make it totally in sync with the Code to
protect the interests of home buyers.
Meanwhile, the Supreme Court has
been resorting to direct action in the

My Space/ Insolvency and Bankruptcy Code/ Mukesh Kacker
26 May 28, 2018
cases brought before it by asking the
promoters or parent companies of insol-
vent housing companies to deposit large
amounts upfront so that home buyers
could be refunded. In the case relating
to Supertech, it has already ordered the
refund of principal to home buyers and
has been ordering upfront deposits of
instalments on hearings. Similarly, on
May 16, in the case of Jaypee Infratech,
it ordered its parent company, Jai-
prakash Associates, to deposit `1,000
crore by June 15, 2018, for refunding the
home buyers.
O
n other issues, the IBC is still a
work-in-progress and the reso-
lution processes of the compa-
nies currently under insolvency present
a shambolic picture. There are legal
cases instituted against resolution pro-
fessionals by different actors—employ-
ees of the insolvent company in one case
and bidders whose bids have been dis-
qualified in many cases. There are
appeals against disqualification of bids
to the NCLATs and Supreme Court.
There are petitions in the NCLATs and
Supreme Court for and against rebids
and for postponement of rebids. There
are petitions for accepting out-of-court
settlements after the start of the resolu-
tion process and there are petitions for
withdrawing the insolvency process.
If you think that isn’t enough, there
are petitions to the chief vigilance com-
missioner (CVC) and the CBI to inter-
vene. It is, indeed, a wonderland that
would invite an Alice-esque comment—
“curiouser and curiouser”! No wonder,
amongst the bigger cases, only that of
Electrosteel Steels seems to have been
finally resolved with no legal challenges.
The most curious case is that of
Binani Cement where initially Dalmia
Bharat’s bid was accepted and UltraTech
Cement’s bid rejected. UltraTech, the
unsuccessful bidder, then reached an
out-of-court settlement with Binani In-
dustries, the promoters of Binani Ce-
ment, promising to pay back the lenders
in full and without any “haircut”. This
invited howls of protest from Dalmia
Bharat who castigated this settlement as
illegal. Petitions were sent to the CVC
and the CBI and the resolution profes-
sional alleged fraud on the part of
Binani Cement. Dalmia Bharat’s main
argument was that once the resolution
process had started under the Code,
there was no place for an out-of-court
settlement. UltraTech, on the other
hand, came out with the argument that
the main purpose of the Code was to
find the best resolution, with the least
“haircut” to the creditors. What takes
precedence—procedure or object?
UltraTech then approached the SC
which refused to intervene. In between,
UltraTech submitted its settlement as a
revised bid whose eligibility was first
challenged in the NCLT and then tested
in the NCLAT. Last heard, the NCLAT
had ruled that the resolution profession-
al of Binani Cement (who in this case
had been siding with Dalmia Bharat)
could not decide on the eligibility of the
bidders placing their revised bids and
had directed the Committee of Creditors
to select one of the bids placed before it.
Simultaneously, Binani Industries has
moved the NCLAT on May 16, offering
to clear 100 percent claims of all credi-
tors within two weeks if its subsidiary,
Binani Cement, is brought out of the
purview of the insolvency process.
Whew! I am sure we have not heard the
last word in this case.
Seen from another perspective, these
developments have a positive side too. It
means there is a thriving market for
stressed assets in India and instead of
no takers, we have keen bidders willing
to fight to the end. However, the delay
in resolution is worrying and a way
must be found to curb protracted legal
challenges. Repeated question marks
have also been raised on the quality and
probity of resolution professionals.
Perhaps the committee formed by the
government needs to be a continuing
committee with the running mandate of
quickly attending to newer issues and
challenges like an on-tap legislative
back office.
—The writer is a former IAS officer
and has extensive corporate experience
and is an expert on corporate governance
InthecaserelatingtoSupertech,the
SupremeCourthasorderedtherefundof
principaltohomebuyersandhasbeen
orderingupfrontdepositofinstalments
onsuccessivehearings.
SAFE AND SECURE: The dreams of these
residents have been realised

28 May 28, 2018
ORE than four years
after Sunanda Pushkar
was found dead in a
suite in Hotel Leela
Palace in Delhi’s tony
Chanakyapuri area,
the Delhi police last week filed a charge-
sheet for the offence of abetment of sui-
cide and cruelty to one's wife against
Shashi Tharoor, the sitting member of
parliament representing Thiruvan-
anthapuram constituency in Kerala.
Tharoor was a minister in the UPA
government led by Manmohan Singh
when his wife was found dead on the
night of January 17, 2014, in suite no.
345 of the hotel in suspicious circum-
stances. It is alleged that she consumed
tablets without having a doctor’s pre-
scription and that it was a case of an
overdose of Alprazolam (Alprax tablets,
a prescription drug given to those suf-
fering from panic disorders, anxiety and
tension due to stress.)
It is revealed from investigations car-
ried out in the said suite that two 15-
tablet strips were found near her body
on which only three tablets remained in
one strip. Along with unused Alprax, the
police also found 18 caplets of Exedrine
Ua drug (used to treat migraine) in a
medicine box.
M
Column/ Sunanda Pushkar Case Aabad Ponda
Crime and Abetment?
CongressMPShashiTharoorvowstofight“vigorously”the
DelhiPolice’schargesheet,whichheterms“preposterous”
THE LAST RITES
Congress MP Shashi
Tharoor (left) carrying the
body of his wife, Sunanda
Pushkar, who died in
January 2014

Though the initial examination of
Pushkar revealed injury marks on her
body (an alarming number of 15 ante
mortem injuries, including a visible bite
mark on the left hand), no FIR was reg-
istered till 2015. It may be recalled that
the Congress party was in power at the
centre until May 2014, when the BJP-
led NDA unseated it.
I
t appears that Crime Number 4 of
2015 was registered as an FIR in
the Sarojini Nagar Police Station in
South Delhi for offences under Sections
302, 306, 498A of the Indian Penal
Code, 1860. Simply put, these relate to
murder, abetment of suicide and cruelty
to wife. The chargesheet reveals that the
15 ante mortem injuries are indicative of
scuffle marks and though they are sim-
ple in nature, caused by blunt force and
are non-contributing in the death of
Pushkar, yet, they assume relevance as
now it appears and it is alleged that the
scuffle marks were a result of scuffles
between Pushkar and Tharoor.
A staffer in Tharoor’s office by the
name of Narain Singh is supposed to
have given a statement to the police that
there were frequent scuffles between the
couple. Pushkar and Tharoor had got
married on August 22, 2010, and she
died approximately three and a half
years later, well within the seven years
of her marriage to Tharoor.
The chargesheet alleges offences of
cruelty which resulted in depression
post harassment meted out to Pushkar
by Tharoor, resulting in her committing
suicide in the hotel suite. If the cruelty
alleged by the prosecution is of such a
nature that it would amount to being
termed as wilful conduct likely to drive
any normal woman to commit suicide
or to cause grave injury or danger to
health, whether mental or physical,
then the matter would fairly fall within
the confines of the offence of cruelty
punishable under Section 498A of the
Indian Penal Code, 1860. For this, the
scuffle marks need to be looked at
very seriously.
As far as abetting the suicide is con-
cerned, if within seven years of marriage
a woman dies by committing suicide
and the presence of cruelty as men-
tioned above exists, then under Section
113A of the Indian Evidence Act, the law
raises a presumption of law where it is
presumed, unless the converse is shown,
that the suicide is as a result of abet-
ment by the husband. For the purpose
of establishing abetment of suicide in
such cases involving husband and wife,
there is no need for any further proof of
actual goading, instigation or abetment.
These kind of deaths occur within the
four corners of a person’s house and
hence this statutory presumption was
incorporated in the Indian Evidence Act
on December 26, 1983, particularly
because prior to that, proof of abetment
was seldom available and a number of
acquittals took place because of the
inability of the prosecution to prove
actual abetment.
Shortly after the Delhi police filed
the chargesheet on May 14, the former
diplomat-cum-ex-minister termed the
action “preposterous” and vowed to fight
it “vigorously”. It will be interesting to
see how Tharoor responds to the
chargesheet and particularly the evid-
ence gathered after the examination of
the body of Pushkar in the hotel suite.
—The writer is an ace criminal
lawyer based in Mumbai. This
column is based entirely on
information gathered from the
print and electronic media without
having read the chargesheet filed
by the Delhi police which runs into
3,000 pages. The purpose of the column
is to educate the public about the laws
of the country with respect to such
suicide deaths. It has been written in
good faith and for public good without
hearing the side of Shashi Tharoor and
purely based upon material
published/aired in various media
Ifawomandieswithinsevenyearsof
marriagebycommittingsuicideandthere
isoccurrenceofcruelty,thenthelaw
raisesapresumptionthatthesuicideisa
resultofabetmentbythehusband.
TESTING TIMES AHEAD
A staffer in Shashi Tharoor’s office allegedly
gave a statement to the police that the couple
had frequent scuffles

cial invitee”. The status of a special invi-
tee did not give Kharge powers to make
suggestions that were binding on the
selection panel. He boycotted the meet-
ing in a huff. The absence of the LoP
and also of an eminent jurist on the
panel (the committee, according to the
Lokpal and Lokayukta Act 2013, must
comprise the PM, Chief Justice of India,
Lok Sabha Speaker, Leader of the
Opposition in the Lok Sabha and an
eminent jurist) meant that the centre
was basically playing out a farce.
The second argument, made by the
centre’s department of personnel and
training through an affidavit filed with
the Supreme Court earlier this year,
was that the selection panel didn’t have
an eminent jurist among its members.
The last eminent jurist on the commit-
Focus/ Lokpal
VER three months after
the Supreme Court
rebuked the centre for
dragging its feet on
appointing a Lokpal, a
high-level committee
comprising Prime Minister Narendra
Modi, Lok Sabha Speaker Sumitra
Mahajan and Chief Justice Dipak Misra
nominated senior advocate Mukul
Rohatgi as an “eminent jurist” to the
Lokpal selection panel.
The appointment on May 11 of
Rohatgi, a former attorney general and
celebrated lawyer with close links to the
BJP, as a member of the Lokpal selec-
tion panel may give the impression that
the centre is finally showing seriousness
in appointing the anti-graft ombuds-
man. But has India’s wait for the
Lokpal, an institution that the UPA gov-
ernment was forced to grant legislative
sanction following social activist Anna
Hazare’s anti-corruption agitation in
April 2011, become any shorter? The
answer is an unambiguous no.
ANTI-CORRUPTION PROTESTS
On April 5, 2011, Hazare began the first
of his three indefinite hunger strikes in
Delhi demanding that the UPA-II
regime get the Lokpal Bill passed by
Parliament. Anna’s comrades in the agi-
tation included the likes of Arvind
Kejriwal, Kiran Bedi, Baba Ramdev and
former Army chief General VK Singh.
The protests finally led to the passage of
the Lokpal and Lokayukta Act in 2013.
Hazare’s affiliates used the goodwill that
the anti-corruption movement generat-
ed to launch their own political or
quasi-political (in the case of Ramdev)
careers and bid adieu to the cause soon
after tasting success. Anna’s stir also
paved the way for Narendra Modi to be
elected prime minister in May 2014, rid-
ing high on his poll rhetoric of “na
khaoonga, na khane doonga”.
If Hazare hoped that a new govern-
ment at the centre would promptly
implement the Lokpal Act, he was
naive. The Modi government began its
innings with efforts to dilute the Lokpal
Act while holding the process of
appointing the ombudsman in
abeyance. The centre presented two
arguments for the delay in appointing
the Lokpal. It said that an amendment
to the Lokpal Act, moved in 2016, to
change the criteria for constituting the
Lokpal selection committee was pend-
ing Parliament’s approval. This was, at
best, a half-truth. The amendment does-
n’t talk about changing the constitution
of the selection committee at all and so
its pendency for parliamentary approval
does not arise. It was Lok Sabha
Speaker Sumitra Mahajan’s decision to
not acknowledge a Leader of Opposition
(LoP) in 2014 that created a scenario
wherein the Lokpal selection panel
could not be constituted as per the con-
ditions laid out in the Act. She did so on
the grounds that the single largest
Opposition party—the Congress—had
failed to secure 10 percent of the Lower
House’s strength.
In March this year, the centre con-
vened a meeting of the selection panel
and extended an invite to Mallikarjun
Kharge, leader of the Congress party in
the Lok Sabha, to participate as a “spe-
ThegovernmenthasappointedsenioradvocateMukulRohatgi
asan“eminentjurist”ontheLokpalselectionpanel,butwill
thismakethewaitforananti-graftombudsmananyshorter?
By India Legal Bureau
O
A LONG CRUSADE
Social activist Anna Hazare with comrades
Kiran Bedi and Kumar Vishwas in Delhi in 2011
30 May 28, 2018
An Unending Quest

tee was senior advocate PP Rao, who
passed away in September 2017. Since
Rao’s demise, it took the centre eight
months to finally appoint Rohatgi in
his place.
Despite Rohatgi’s appointment, the
issue of the Lokpal selection panel hav-
ing no representation from the Opposi-
tion remains unresolved. Also, Rohatgi’s
appointment is no guarantee of the
Lokpal being appointed expeditiously.
The SC bench of Justices Ranjan
Gogoi and R Banumathi which forced
the centre to appoint an eminent jurist
on the Lokpal selection panel, has said:
“The next step (after appointment of
Rohatgi) that would be required to be
done by the Selection Committee is to
constitute a Search Committee. There-
after the Search Committee would be
required to recommend persons for
appointment of Chairperson and Mem-
bers of the Lokpal which again will be
considered by the Selection Committee.”
The top court hasn’t set out any
time-limit for the selection committee to
complete the above-mentioned process.
MISLEADING COUNTRY
Anjali Bhardwaj of the National Camp-
aign for People’s Right to Information,
which has been demanding speedy
implementation of the Lokpal Act, feels
the centre is misleading the country
and the Supreme Court. She told India
Legal: “If the government is claiming
that it wants to follow the Lokpal Act
when it comes to convening a meeting
of the Lokpal selection committee, then
how did it call Kharge as a special invi-
tee when the Act has no such provision?
Appointing an eminent jurist, after an
eight-month-long wait, still does not
complete the selection panel. An Oppo-
sition Leader must be on the panel to
ensure that the government appoints a
Lokpal through broad political consen-
sus and does not indulge in nepotism.”
Meanwhile, Hazare has now been
robbed of his sheen. He had to abruptly
end his latest “indefinite hunger strike”
in Delhi in March within three days
after the media that once glorified him
as the anti-graft messiah and politicians
who courted him shunned him. Asked
if he saw any hope of the government
appointing a Lokpal in the coming days,
he told India Legal: “It has been four
years since this government came to
power, but it has forgotten its anti-cor-
ruption promises. I will wait and see.
The government has said that its Lokpal
selection panel will meet soon. If the
Lokpal is not appointed, I will protest
again.” Hazare’s words no longer seem to
carry the same weight they did when he
would roar “Inquilab Zindabad!” at his
Jantar Mantar protests five years ago.
Hazare may be disenchanted with
the BJP. But does it matter? With one
year to go before the general election
and five years since the Lokpal agita-
tion plunged the Congress in a quest
for political revival, corruption in the
government and the demand for a
Lokpal are issues that no longer make
national headlines. They don’t draw
any traction from the masses that still
seem to believe that Modi, not Hazare,
is their anti-graft messiah. They pos-
sibly don’t even feel the need for a
Lokpal anymore.
DespitesenioradvocateMukulRohatgi’s
appointment,theissueoftheLokpal
selectionpanelhavingno
representationfromtheOpposition
remainsunresolved.
Anil Shakya

Spotlight/ ISRO Scandal
OT too many 76-year-
olds have the stomach
for a long fight but S
Nambi Narayanan has
been involved in one for
the last 24 years—to res-
tore his honour and make those respon-
sible for destroying his life and career
pay for it. One of India’s best scientists,
Narayanan was working on the cryo-
genic rocket technology at Indian Space
Research Organisation in Thiruvanan-
thapuram when he was arrested on
charges of selling Indian space secrets
to two Maldivian women in 1994.
Twenty-three years later, a bench
headed by Chief Justice of India Dipak
Misra, Justices AM Khanwilkar and DY
Chandrachud said that the Supreme
Court would ensure that he was adequa-
tely compensated monetarily for being
framed in a false case. The Kerala gov-
ernment would initially pay it but would
later recover it from state police officials
who had maliciously implicated him in a
“sensational” espionage case. The com-
pensation would be around `75 lakh,
but money would hardly solve his prob-
lem, the Court said, adding that his rep-
utation will stand restored. Narayanan
has been battling this case since 1998
after he was acquitted, and wanted
action taken against the erring officials.
He had later moved the Supreme Court
in 2015 seeking criminal action against
three Kerala Police officers who had fab-
ricated the charges against him.
In 1994, he was arrested by the
Kerala Police under the Official Secrets
Act on the charge that he was selling
sensitive classified information about
India’s space programme and activities
of ISRO to other countries. Along with
NambiNarayanan,theISROscientist
wronglyaccusedofespionage,hasdouble
reasontorejoice.TheSupremeCourthas
ensuredthathisreputationwill
standrestoredandhewillbe
adequatelycompensated
By Ramesh Menon
N
The “Spy”
Who Came in
From the Cold
32 May 28, 2018
FALSELY FRAMED
ISRO scientist Nambi Narayanan was
working on the cryogenic rocket
technology (inset) at ISRO in
Thiruvananthapuram when he was
arrested in 1994
1994: S Nambi
Narayanan, in-charge
of the cryogenics
division at ISRO, was
falsely charged with
espionage and
arrested. He spent
50 days in jail. During
his incarceration, he
was allegedly tor-
tured by interroga-
tors and had to be
hospitalised
TorturousTime
Wikipedia

him, the police also arrested another
ISRO scientist, D Sasikumaran, senior
IPS officer Raman Srivastava and two
Maldivian women, Mariam Rasheeda
and Fauzia Hassan. The top officers did
not think it necessary to verify facts.
Had they done so, Narayanan and oth-
ers would not have gone to jail. Glaring
contradictions were ignored. The
Intelligence Bureau (IB), which took
over the case from the police, claimed
to have found 75 kg of classified infor-
mation in Narayanan’s house which
related to India’s space research pro-
grammes. What is interesting is that as
ISRO is an open organisation, it does
not have any classified information!
This was the biggest hole in the story,
but no one thought it fit to investigate.
Narayanan was supposed to have got
huge payments for the information he
passed on, according to the police. One
report said that `250 crore had been
dispensed. In Kerala, the media went to
town with the case. Malayalam Mano-
rama, the leading newspaper in Kerala,
even ran a serial on the case, attributing
everything to the police and the IB. The
Left Front charged that the Congress
chief minister, K Karunakaran, was
shielding the culprits and was trying to
protect police officer Srivastava, whom
he was close to. Congress leader AK
Antony also joined in attacking him.
Karunakaran was forced to resign.
Antony became the chief minister.
Public opinion and the trial by media
saw the case being handed over to the
Central Bureau of Investigation (CBI).
The CBI was quick to note that there
was no evidence of any payouts to
Narayanan or any of the others. In fact,
when Narayanan’s house was searched,
they found he lived a very frugal life.
He had a 14-inch black and white televi-
sion set, just six cane chairs, two tables,
some table lamps and basic stuff. They
found he had not even met the two
Maldivian women to whom he had sup-
posedly sold secrets.
The five conspirators, according to
the IB, had met in Hotel Madras
1996: Charges dis-
missed as phony by CBI
1998: Charges dis-
missed by Supreme Court
1999: National Human
Rights Commission
passed strictures against
the government of Kerala
for having damaged
Narayanan’s distin-
guished career in space
research along with the
physical and mental
2001: NHRC ordered
the Kerala government
to pay him a compen-
sation of `1 crore. He
retired the same year
2012: Kerala gov-
ernment yet to
comply with High
Court order to pay
compensation of
`10 lakh
2015: Supreme
Court admits petition
filed by Narayanan
seeking an order to
initiate criminal
action against police
officers who implicat-
ed him
2018: The SC
said it would order
granting of com-
pensation, which
must be recovered
from the officers
who incarcerated
him during the
investigation
2012: Kerala High
Court orders `10 lakh
to Narayanan based
on an appeal from
NHRC
torture to which he
and his family were
subjected
2012: Kerala gov-
ernment drops
charges against police
officials who were
alleged to have falsely
implicated Narayanan
on the grounds that
over 15 years had
passed since the case
was initiated. The top
officer involved in the
case, Siby Mathews, is
currently the Chief
Information Commiss-
ioner in Kerala
IN POLICE NET
(Clockwise from far
left) Maldivian women
Mariam Rasheeda
and Fauzia Hassan
(in western dress)
and senior IPS officer
Raman Srivastava
(below, in centre)
were arrested in the
spy scandal that
never was
File Photo: Anil Shakya

India Legal 28 May 2018

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India Legal 28 May 2018