India Legal 30 April 2018

NDIA EGALL
` 100
I
www.indialegallive.com
April 30, 2018
ThelawandordercrisisinUP—highlightedbytheUnnaoatrocity,encounterraj,and
withdrawalofcriminalcases—smacksofacomplicitybetweenpoliticiansandtopofficials
Arun Shourie: Cracks
in the judiciary
SC: Impeachment
drama/Loya decision
Protect your
witness!
llll llllll iiii
s
The Yogi And
His Commissars
ADITYANATH

HE issue of holding simultaneous elec-
tions to the Lok Sabha and state assem-
blies is once again in the news. A draft
white paper has been released by the
Law Commission that recommends hold-
ing of such elections and even suggests that it
could be done in 2019 itself, when Lok Sabha polls
will be held. It also moots the idea of making
changes in the Constitution to realise the objective.
India Legal in its February 12, 2018, editorial
had already picked up the issue right after Prime
Minister Narendra Modi had floated the idea. The
write-up delved into every possible angle invol-
ved—legal, political and economic—and analysed
the pros and cons as well as the background to
find out whether the idea thrown up by Modi
had any basis or it was merely backed by
political expediency. It is now pertinent and rele-
vant to remind our readers about the edit:
To be fair to Prime Minister Narendra Modi,
the proposal to hold national and state elections
simultaneously preceded his recent public advocacy
of it by nearly two decades. As early as 1999, the
Law Commission, chaired by Justice Jeevan Reddy,
supported the idea. More recently, the Parliamen-
tary Standing Committee on Personnel, Public
Grievances, Law and Justice came to a similar con-
clusion. The Modi government, therefore, had a
readymade political wicket on which to bounce its
own ball and avoid public criticism of trying to
queer the pitch in its own favour.
The ball was set rolling again when the prime
minister, in a rare interview to private television,
promoted the idea as healthy and desirable for
Indian democracy. Shortly thereafter, he received
backing on the eve of Republic Day from none
other than the president of India (whose address is
usually cleared by the Prime Minister’s Office), who
virtually repeated what former President Pranab
Mukherjee had said earlier: “With some election or
the other throughout the year, normal activities of
the government come to a standstill because of
code of conduct. This is an idea the political leader-
ship should think of. If political parties collectively
think, we can change it.... The Election Commi-
ssion can also put in their idea and efforts on
holding the polls together and that will be
highly beneficial.”
Two former chief election commissioners, N
Gopalaswami and SY Quraishi, last week publicly
supported the concept. Gopalaswami was com-
pletely gung-ho, urging the ruling party to display
the political will to make necessary constitutional
amendments to implement the measure, while
Quraishi, who saw merit in its cost and time-effec-
tiveness, counselled obtaining a wider political con-
sensus. The NITI Aayog, a government-controlled
think-tank that took on many of the functions of
the old Planning Commission after Modi became
prime minister, has now also jumped onto the
bandwagon with its own report, forcefully conclud-
ing that, as is the case of all long-term structural
reforms, “implementing this measure would also
cause some short-term pain. However, this would
be a stepping stone towards improved governance
and a larger initiation of electoral reforms—a
desperately needed measure to re-boot the
Indian polity”.
Strong words, indeed. But all the advocates of
this “reform”, taking shelter in the recommenda-
tions of the 170th report of the Law Commission as
well as the Parliamentary Committee, seem to
ignore that both cautioned against any impulsive
move in this direction without widespread consul-
tation. The Law Commission was careful to suggest
phasing the measure in but with the advice and
consent of all chief ministers. And the Parliamen-
tary Committee also warned that clubbing all
national and state elections “can (only) be possible
with the cooperation of political parties which rep-
resent the political will of the people”.
The Parliamentary Committee took a balanced
view of the pros and cons of the issue. It noted that
proponents made forceful arguments that frequent
elections led to suspension of development pro-
grammes, welfare activities due to imposition of
the Model Code of Conduct, massive expenditures
by government and various stakeholders, black mo-
WILL SIMULTANEOUS
POLLS HELP DEMOCRACY?
Inderjit Badhwar
Letter from the Editor
T
4 April 30, 2018

ney, engagement of government personnel and
security forces for prolonged periods of time, per-
petuation of caste, religion and communal issues.
The Committee noted: “Frequent elections force
Governments and political parties to remain in
perpetual campaigning mode thereby impacting
the focus of policy making. Short-sighted populist
and politically safe measures are accorded higher
priority over difficult structural reforms which may
be more beneficial to the public from a longer term
perspective. This leads to sub-optimal governance
and adversely impacts the design and delivery of
public policies and developmental measures.”
But Prime Minister Modi is a man in a hurry.
He stated recently: “If India is to meet the chal-
lenge of change, mere incremental progress is not
enough. A metamorphosis is needed….My vision
for India is rapid transformation, not gradual evo-
lution.” But the Parliamentary Committee also
counselled: “It is difficult to quantify the gains
from simultaneous elections. This would require
estimating impact of those policies which should
have been done but could not be done due to elec-
toral compulsions. Since the existing cycle of fre-
quent elections still works in one way or the other,
one can argue why get into sweeping amendments
of the Constitution when we don’t know the quan-
tum of benefits through this reform? True, the
existing system is not entirely broken. But, the
political class is duty-bound to provide citizens a
governance framework that best fits the needs of its
population—a large proportion of which is young
and demanding. Elections are meant to elect
Governments who are then supposed to focus on
rapid and transformative national development.”
C
ritics have argued that such a step may
undermine the depth and breadth of Indian
democracy, and that its operational feasibili-
ty is also a challenge. But as the Association for
Democratic Reforms points out, the concept of
simultaneous polls isn’t new to India. The first gen-
eral election to the Lok Sabha and all state legisla-
tive assemblies were held together in 1951-52.
However, with the premature dissolution of some
state assemblies in 1968 and 1969, this cycle was
disrupted. In 1970, the Lok Sabha itself was dis-
solved early and fresh elections were held in 1971.
As a result, says political analyst Nilesh Ekka,
for the last 48 years, there have been separate polls
for electing central and state governments. He
also analyses the “many hurdles in implementation
of simultaneous elections”. These include: the
proposal could be motivated by political consider-
ations as voters tend to vote for the same party at
the central and the state levels during simultane-
ous elections; the Constitution might be misused if
the Parliament/assembly is prematurely dissolved
for political gains as Articles 83(2) and 172 (1) of
the Constitution provide for a set term of the Lok
Sabha and assemblies; the possibility of its imple-
mentation every time might not be a reality as
state assemblies can be dissolved at any time with-
out completing the fixed term; administrative and
security concerns associated with simultaneous
elections should be addressed at length before
implementation.
“All this presupposes that the Lok Sabha and
Legislative polls will result in stable governments
that last their entire tenures and so will regimes in
the states,” he says. Only in the last 15 years have all
three Lok Sabhas lasted their full five-year terms.
He points out that the anti-defection law and Sup-
reme Court judgment in SR Bommai vs. Union of
India [1994] also ensure stability and continuity of
legislative bodies to complete their full terms.
I am inclined to agree with his balanced view
that while holding simultaneous elections is an
interesting concept, whether it will decrease the
evils that the government wants to get rid of needs
to be debated thoroughly.
There could be another, perhaps intangible,
benefit of frequent elections in a large country like
India: They could serve to keep governments on
their toes and periodically remind them that peo-
ple power is the best safeguard of democracy
and accountability.
| INDIA LEGAL | April 30, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Criticshaveargued
thatholding
simultaneouspolls
forstatesandthe
centremay
underminethedepth
andbreadthof
Indiandemocracy,
andthatits
operational
feasibilityisalsoa
challenge.However,
theconceptisn’t
newtoIndia.
UNI

ContentsVOLUME XI ISSUE 24
APRIL30,2018
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6 April 30, 2018
Compromised Force
The attack on a minor and her futile fightback indicts a complicit Uttar Pradesh Police even as
its chief minister prides himself for having ostensibly made the state safe for women
LEAD
12
State of Impunity
The attempt to withdraw about 20,000 cases in UP, including some against Chief Minister Yogi
Adityanath, has exposed the moral vacuum of the state government
18

REGULARS
Followuson
Facebook.com/indialegalmedia
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside........................... 8
Delhi Durbar .................... 9
Courts............................ 10
National Briefs............... 37
International................... 41
Media Watch ................. 50
HEALTH
DEFENCE
Graft in Transplants
While the powerful get kidneys within days, the common man has to
grapple with a complex medical and legal system and high demand
28
42
Cracks in the judiciary have appeared in recent times. What happens when it has to
act against one of its own? Arun Shourie’s new book provides an incisive analysis
When Judges Falter
BOOKS
46Diplomatic
Discourtesy?
India continues to have frosty relations
with its neighbour as visiting Sikh
pilgrims in Pakistan are denied access
to the high commissioner
Cover Design & Illustration:
ANTHONY LAWRENCE
Sidhu on the
Back Foot
The top court has reserved its
judgment in the 1988 attempt to
murder case against the
cricketer-turned-minister. A conviction
could lead to his disqualification
STATES
34
COMMERCE
Unregulated Cryptocurrency
The theft of Bitcoins worth `20 crore has revealed how unregulated
this market is and why investors should be cautious
32
More Power
to IAF
Gagan Shakti 2018
tested the prepared-
ness of the Indian Air
Force against the
might of the Chinese
and the Pakistanis. The
results are heartening
38
Protect the Witness
A draft scheme for this purpose has been prepared by the
centre and circulated. What are its pros and cons?
SPOTLIGHT
GLOBALTRENDS
24
Case Dismissed
A three-judge bench unanimously dismissed the Justice BH Loya
case. It said that petitions in this regard were scandalous
SUPREMECOURT
20
Impeachment Drama
Seven opposition parties approached the Rajya Sabha chairman to
initiate proceedings against Chief Justice of India Dipak Misra
23

8 April 30, 2018
“
RINGSIDE
“As an act of appre-
ciation for the ques-
tion that you had
posed, I gave a pat
on your cheek con-
sidering you to be
like my grand-
daughter...I wish to
express my regret
and my apologies to
assuage your senti-
ments that have
been hurt.”
—Tamil Nadu
Governor Banwari-
lal Purohit to a
woman journalist
“The Prime Minis-
ter should follow
his own advice to
me and he should
speak more often....
I know that he used
to criticise me for
not speaking up. I
feel that the advice
that he used to give
me, he should fol-
low it himself.”
—Former PM
Manmohan Singh
on PM Modi’s long
silence on rape cases
“In this branch of
activity, you have to
lump it. You have
to wait till your
Chief Justice re-
tires. Fortunately,
he retires at 65
years and there is
no extension.”
—Senior jurist Fali
Nariman on the four
seniormost SC
judges airing their
grievances against
CJI Dipak Misra
in public
“Internet and satel-
lite communication
had existed in the
days of ‘Maha-
bharata’. How else
could Sanjaya (the
charioteer of King
Dhritarashtra in the
epic) give a detailed
account and des-
cription to the
blind king about
the battle of
Kurukshetra?...”
—Tripura Chief
Minister Biplab Deb
“A rape is a rape. How can we tolerate this
exploitation of our daughters? But can we compare
the number of rapes in different governments? We
can’t say there were this many rapes in our
government and that many in yours. There cannot
be a worse way to deal with this issue.”
—PM Modi addressing the Indian diaspora at an event in London
“With all due
respect, I don’t get
confused.”
—Nikki Haley, US
ambassador to the
UN, responding to a
comment from a
White House official
that she was con-
fused about US
imposing fresh sanc-
tions on Russia
“A person who sees
moral equivalence
in Charlottesville,
who talks about
and treats women
like they’re pieces of
meat, who lies...
about matters...
that person’s not fit
to be president....”
—James Comey,
ex-FBI director, on
US President
Donald Trump
“The job of execu-
tioner is not an
aspirational job.
But for the execu-
tion of brutal
rapists & murderers
of young girls I
would volunteer
unhesitatingly... my
blood boils over to
see this happen in
our country.”
—Industrialist
Anand Mahindra
on Twitter

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
The BJP hierarchy, especially the devoted
followers of President Amit Shah, could not
have hoped for better news from the
Supreme Court. When the apex court dis-
missed a petition it had been hearing for
months demanding an independent probe
into the death of CBI special court judge BH
Loya, the BJP went into a PR overdrive. Loya
had been presiding over a false encounter
case in which Shah had been an accused.
Any court-ordered filing of an FIR in the
case would have added to the BJP’s woes
especially before the Karnataka election,
which is a prelude to the general election in
2019. Seizing the opportunity, the BJP’s fero-
cious attack men like Sambit Patra have been
asked to go on the offensive, accusing oppo-
nents from the Congress of filing “fake” PILs.
Another fortuitous judgment that came the
BJP’s way was the acquittal of all persons
charged in the Mecca Masjid blast. This
heinous act was dubbed by critics as
“Saffron Terror”. With their acquittal, BJP
spokespersons, who were on the defensive
after the rape cases that have shaken India
and the whole world, have a new argument in
their political armamentarium: The theory of
“Hindu terrorism”, a concoction of “pseudo-
secularists” and “presstitutes” has been
debunked by the courts. Given the shoddy
way in which the case was prosecuted, there
is small chance that it will be appealed while
the BJP is in power.
MUSIC TO THEIR EARS
Following the shocking rapes in Kathua
and Unnao, Prime Minister Narendra
Modi has been facing worldwide flak.The
latest salvo was from IMF chief Christine
Lagarde who called the situation "revolt-
ing" and hoped Modi would pay more
attention to it.
If that wasn’t enough, 49 of India’s
top retired bureaucrats, including secre-
taries, additional secretaries, high com-
missioners and ambassadors, wrote a
joint letter to Modi on April 15, 2018,
expressing their disgust over the deterio-
rating law and order situation. It included
Chandrashekhar Balakrishnan, former
secretary, ministry of coal, Meeran C
Borwankar, former DGP, Bureau of Police
Research and Development, Sundar
Burra, former secretary, Maharashtra, MG
Devasahayam, former secretary, Haryana,
Sushil Dubey, former ambassador to
Sweden, and KP Fabian, former ambas-
sador to Italy. Calling it post-
Independence India’s “darkest hour”,
they wrote to Modi: “Instead of owning up
and making reparations however, you
had until yesterday chosen to remain
silent, breaking your silence only when
public outrage both in India and interna-
tionally reached a point when you could
no longer ignore it.” They asked the PM
to seek the forgiveness of the families of
the victims in Unnao and Kathua.
THE DARKEST HOUR
Prime Minister Narendra Modi’s London visit
was carefully choreographed and orches-
trated by his spin doctors in Delhi. It was
possibly the first mass-televised election
pitch made by the PM who is a master of
such events and he had the crowds—a pre-
vetted and carefully selected audience of
Modi fans—in thrall. To Indian audiences, it
appeared as if the whole of Great Britain
was laying out the red carpet for his visit to
the Commonwealth Summit. Actually, even
as officials briefed journalists about how
Modi was getting special treatment at the
CHOGM meet, they could not divert atten-
tion from the protests which were already
taking place against his visit given the cas-
cading international furore over India’s
declining human rights record following
the Kathua and Unnao atrocities.
But the spin doctors were in for a shock
when the foreign secretary held a press con-
ference on the day Modi arrived in London.
He was asked by an Indian student heading
a group that had written an open letter to
the PM about the recent horrific rapes, why
their voices were being suppressed and
they weren’t being given their promised
entry to Modi’s Bharat ki Baat. The foreign
secretary mumbled his way through the
awkward situation but as it happened in
front of the media, it was left up to the
media houses to decide whether to report it
or not. Some did. Others ignored it.
MODI’S UK SPIN
While Mamata Banerjee is busy
trying to cobble up an alternative
national political grouping that
will challenge the BJP’s domi-
nance at the centre, two of Didi’s
relatives back home in West
Bengal are at loggerheads.
Kartik Banerjee, a brother of the
West Bengal chief minister, and
Abhisekh Banerjee, son of
another brother of Mamata, are
stepping on each other’s toes.
While Abhisekh has been hog-
ging the limelight for quite some
time now, becoming the virtual
No. 2 in state politics after the
inglorious exit of Mukul Roy,
Kartik enjoys tremendous public
support in the Kalighat area with
his many ward-level develop-
mental projects.
Recently, Kartik’s support-
ers—nearly a hundred of them—
held a rally around Abhisekh’s
fancy new office space near the
residence of the chief minister.
They chanted Kartik’s praises
and danced. When the police
stepped in quickly, requesting
them to move to another place,
Kartik was reportedly so
incensed that he ran to his Didi’s
home and complained. The situ-
ation is dangerous, with all the
money in the administrative sys-
tem now being routed through
Abhisekh, and Kartik being left
with crumbs.
DIDI’S RELATIVE
WOES

The Calcutta High Court direct-
ed the West Bengal State
Election Commission (WBSEC) to
announce fresh dates for filing of
nominations for the panchayati
polls. The polls were slated for the
first week of May. The Court also
asked WBSEC to finalise a new
election schedule in consultation
with the state government.
A single-judge bench of
Justice Subrata Talukdar quashed
the WBSEC’s notification of April
10 in which the state poll panel
suddenly annulled its own direc-
tive stretching the deadline (April
9) by one day for filing of nomina-
tions by candidates.
“The notification issued by the
state election commission on
April 10 (withdrawing its own
order allowing an additional day to
file nominations) stands
quashed.... The court hereby
directs the commission to issue a
fresh notification giving a day’s
time for filing of nomination by
willing candidates,” Justice
Subrata Talukdar said in his
35-page order.
The Court was acting on peti-
tions from the BJP, Congress,
CPI(M) and the Party for Demo-
cratic Socialism against the
WBSEC’s decision to withdrew its
order. They had also accused the
TMC of triggering pre-poll
assaults against their party work-
ers to dissuade them from filing
nominations.
HC asks SEC to
set new poll dates
Over 50 employees of the Delhi Flying Club
and their families were evicted from their
homes at the Safdarjung Airport and their resi-
dences sealed. They have urgently appealed to
the Delhi High Court to order the Airports
Authority of India to unseal their homes.
The appeal came up before the bench of
Acting Chief Justice Gita Mittal and Justice C
Hari Shankar.
The club has 85 students, 85 staff and
around 1,077 members. The staff will have to
be relocated and all their dues cleared.
The original petition seeking a writ of man-
damus to ask the government to constitute the
Airports Appellate Tribunal was filed in 2015.
The present petition also seeks a writ in the
nature of mandamus directing the Airports
Authority of India not to evict the workers as it
decided in January 2017.
A hearing took place on April 18 after
which the matter was adjourned to April 23. In
the evening, the eviction took place. The evict-
ed are being barred from collecting their
belongings and includes children whose exam-
inations are ongoing.
Courts
10 April 30, 2018
Delhi Flying Club staff
evicted in sealing drive
The Supreme Court took a serious note of
the lax approach adopted by the Haryana
government in releasing water to Delhi. The
Court was hearing a petition from Delhi Jal
Board (DJB), which accused Haryana of cut-
ting water supply to Delhi to such an extent
that the capital was getting only one-third of
the total supply of Yamuna river. The Court
directed the Haryana government to release
water with immediate effect and asked the sec-
retaries of Delhi and Haryana to appear in per-
son on April 23. It made a scathing comment
on the situation: “People are dying. But no
urgency is being shown by you people.”
DJB brought to the Court’s attention that
Haryana was wilfully not following the top
court’s 1996 order asking the state to release
450 cusecs to Delhi on a daily basis. As a
result, there was severe water crisis in Delhi,
DJB contended. It also said that Haryana’s
defiance has led to a situation where the river
Yamuna has gone virtually dry and the treat-
ment plant at Wazirabad gets less water—350
cusecs—for treatment.
DJB said that with summer round the cor-
ner and water demand shooting up, the sce-
nario could become more critical. It pleaded
that the apex court ask an independent agency
to daily monitor the quantity and quality of
water at the Wazirabad barrage or reservoir.
SC orders
Haryana
to release
water to
Delhi

An apex court bench directed the centre to
confiscate fugitive underworld don Dawood
Ibrahim’s properties. It also dismissed the plea
by his sisters, Hasina Parkar and Amina Bi
Kaskar, against the attachment. At least seven
properties of Dawood are set to be seized. The
properties are situated at prime locations in
Mumbai. The finance ministry had invoked pro-
visions of the Smugglers and Foreign Exchange
Manipulators (Forfeiture Of Property) Act to
seize the properties.
ConfiscateDawood’s
properties,ordersSC
The Supreme Court made it clear
that the National Commission for
Minority Educational Institutions
(NCMEI), an independent forum, is
the sole and original authority to
decide whether an educational insti-
tution can be declared a minority
one, and all questions related to this
must be referred to it.
A two-judge bench of the top
court passed the order while nulling
a Calcutta High Court verdict, which
had rejected NCMEI’s decision to
grant minority status to Cluny
Women’s college in the Kalimpong
district of West Bengal, saying that
it has no original jurisdiction in
the matter.
NCMEI and the Sisters of St.
Joseph of Cluny had challenged the
High Court verdict. The apex court’s
ruling has set to rest the issue once
and for all as several high courts had
given conflicting verdicts. The Court
said in its ruling that the NCMEI Act
gave powers to the body to take a
final call on minority institutions in
India, and its powers were further
enhanced as per the changes made
in the Act in 2006.
Only NCMEI can
grant minority tag
The Law Commission of India
(LCI) recently sent a report to the
law ministry, recommending that the
Board of Control for Cricket in India
(BCCI) be brought under the ambit of
the Right to Information Act (RTI).
For that, the BCCI should be deemed
a “public body”, answerable for its
actions, the report said.
The LCI noted in its 124-
page report that the “BCCI
exercises ‘state-like’ pow-
ers, affecting the funda-
mental rights of the
stakeholders, guaranteed
under Part III of the
Constitution”. It also rec-
ommended that the “BCCI be
viewed as an agency or instrument
of state, under Article 12 of the
Constitution, thereby making it
amenable to the writ jurisdiction
of the Supreme Court under
Article 32.”
The report also said: “Non-con-
sideration of the role played by BCCI
as monopolistic in regulation of the
game of cricket has resulted in the
Board flying under the radar of public
scrutiny, encouraged an environment
of opacity and non-accountability. In
the past, this has probably given an
impression in the minds of the gen-
eral public that corruption and other
forms of malpractices are adversely
affecting one of the most popular
sports played in India...”
The LCI also revealed that
BCCI received funding
from the government
indirectly. It said: “The
government in impliedly
authorizing the BCCI to
raise funds/generate
resources from numerous
other sources, such as funds and
resources, which otherwise could
have been directed to the Na-
tional/State Exchequer, also amounts
to ‘substantial financing’. It can
be asserted that BCCI has, over the
decades, indeed received
‘substantial financing’ from the
Governments.”
Bring BCCI under RTI: Law Commission
—Compiled by India Legal team
Former Delhi High Court Chief Justice
Rajinder Sachar, who was head of the
Sachar Committee that had filed a commend-
able report on the social, economic and educa-
tional status of Muslims in India, passed away
recently. He was 94.
The judge, who was also a noted human
rights activist, breathed his last at Fortis
Hospital where he had been admitted two
weeks back.
Born on December 22, 1923, Justice
Sachar headed the Delhi High Court from
August 6, 1985 to December 22, 1985.
After retirement, he had been pursuing
human rights activities through a group called
the People's Union for Civil Liberties.
JusticeSacharpassesaway

Lead/ UP/ Law and Order Crisis/ Unnao
12 April 30, 2018
OGI Adityanath, who
loves to pat himself on the
back for making Uttar
Pradesh safe for women,
faced his first severe test
when he appeared to have
ignored a minor girl’s immolation bid
outside his official 5, Kalidas Marg resi-
dence on April 8. While the girl was
saved, she left the government and the
UP police badly singed.
The girl, in her complaint, accused
Kuldeep Singh Sengar, the BJP MLA
from Bangarmau in Unnao, of rape and
Y
Theshockingattackona
minorgirlandherbraveand
futilefighttogetjustice
showthecallousnessofa
compromisedpoliceand
castsdoubtsonYogi
Adityanath’sclaimsofthe
statebeingsafeforwomen
By Atul Chandra
in Lucknow
Rape Exposes
Police
Complicity
UNI

harassment, and complained of inaction
by a biased police. Despite the charge
being as serious as rape, DGP OP Singh
ruled out the arrest of the “honourable
vidhayakji” or including his name in the
FIR before an investigation.
The suicide bid also did not spur the
DGP and other senior police officers in
the state capital to take the girl’s com-
plaint seriously and at least look into the
role of their junior colleagues in Unnao’s
Maakhi village to which the victim
be-longs. They intended to hand over
the case to the crime branch, which
is known more for hushing up matters
than bringing culprits to book.
It was only after the girl’s father died
on April 9 due to grievous internal inju-
ries that the police top brass woke up.
The injuries were caused by the legisla-
tor’s brother, Atul Sengar, who, after
having beaten him brutally, handed over
the man to the police who kept him in
judicial custody. The man’s death
exposed how the police and government
doctors colluded with a criminal politi-
cian to intimidate the hapless girl and
her family.
The complicit police obliged the
Sengars by implicating the rape victim’s
father in several false cases, including
one under the Arms Act “to pressurise
them to fall in line with the dictates of
Kuldeep Singh”. This was done after the
girl’s mother approached the chief judi-
cial magistrate (CJM) by filing an appli-
cation under Section 156(3), CrPC, on
February 12, 2018, the Allahabad High
Court pointed out.
B
ased on this application, the
Unnao CJM sought a report
from the Maakhi police but the
latter chose to delay sending the report.
It was only after the victim’s father died
that a case was hurriedly registered ag-
ainst Kuldeep Sengar on April 12, 2018,
under Sections 363, 366, 376, 506, IPC,
and 3/4 of the POCSO Act (FIR No.
0096) for alleged rape on June 4, 2017.
The High Court took suo motu cog-
nisance of the case and termed the situ-
ation “breakdown of law and order in
LAW CATCHES UP
(Facing page) Rape accused BJP MLA
Kuldeep Singh Sengar coming out of the CBI
court in Lucknow; (above) Kuldeep’s brother,
Atul, after his arrest
Withcrucialevidencemissingin
thecase,theCBI,whichisnow
probingit,hasbeenforcedtostartthe
investigationafreshbyrebuildingthe
entiresequenceofevents.

the state”. Taking a grim view of the
development, the Court said: “What is
disturbing is… that the father of the
prosecutrix came to be arrested and was
in custody where, we are informed, he
was mercilessly beaten and succumbed
to the injuries…We fail to understand
why the Investigating Agency, instead
of arresting accused persons, arrested
the complainant in connection with
the case.”
As the police did not include Sen-
gar’s name in the girl’s complaint, she
decided to write to the chief minister in
her own handwriting about the events
of June 4, 2017, and between June 11
and 20, 2017, and alleged that Kuldeep
Sengar raped her on June 4, 2017.
The High Court said that the “com-
plaint was endorsed to the Superinten-
dent of Police, Unnao, by the Special
Secretary to the Chief Minister to make
investigation and submit a report within
a week. But till midnight of 11 April,
2018, no crime/FIR was registered
against Kuldeep Singh and his aid (sic)”.
A
s per the girl’s complaint, she
was enticed on the night of June
11, 2017, by her neighbour,
Awdhesh, on the pretext of providing
her a job. Awdhesh and another person,
Shubham, raped her repeatedly in a car.
She tried to escape, but was beaten and
intimidated. She was kept in the custody
of Shubham in his house, where she was
repeatedly raped by other persons, her
complaint with the Court said. The
Court noted that “from the narration
of facts, it appears that the accused
named and unnamed… were known to
Kuldeep Singh”.
The victim alleged that she was sold
for `60,000 to some person at Agra. In
the early hours of June 20, 2017, the
police found her and took her to Maakhi
police station. It was also alleged that en
route she was continuously threatened
and warned by the police officials to say
whatever she would be instructed or else
her father would be killed, as was direct-
ed by Kuldeep Singh.
Based on her complaint, the Court
said: “Serious allegation has been made
… against the conduct of the officials of
Police Station Maakhi, Station House
Officer and medical doctor. It is alleged
that she was not examined by the doc-
tor, rather, the doctor advised (her) to
maintain good relation with Kuldeep
Singh. Thereafter, on 30 June 2017, her
parents took her … to Delhi in (a) fright-
ened and tormented mental state. At the
place of her uncle (chacha) at Delhi, she
disclosed to her aunt (chachi) that she
was raped by Kuldeep Singh on 4 June
2017. Prosecutrix was thereafter taken
by her chachi to Lucknow to get the FIR
registered against Kuldeep Singh, doc-
tor, Station House Officer and Super-
14 April 30, 2018
PAYING THE PRICE?
(Left) The father of the Unnao rape survivor
died due to grievous internal injuries;
(below left) DGP OP Singh had earlier ruled
out the arrest of Kuldeep Sengar
Theextentofpolicecomplicityin
shieldingSengarcanbegaugedfromthe
factthatdespitethegirl’scomplaintof
rape,thepolicedidnotcollectevidence
fromherprivateparts.

A
n audio clip of a conversation pur-
portedly between a gangster and
a police officer added to the
mess surrounding extrajudicial killings in
Uttar Pradesh. The conversation but-
tresses the argument that most of the
encounters in the state are stage-man-
aged or fixed and in violation of the law.
In the audio, Mauranipur police sta-
tion in-charge Suneet Kumar Singh can
be heard alerting Lekhraj Singh Yadav, a
dreaded criminal with over 60 cases.
“Aap ke upar 60 mukadma hai…aap
encounter ke liye sabse fit case hain
pure UP mein…(There are 60 cases
against you…you are the fittest case for
an encounter in entire UP).”
When the criminal requests help,
“Madad karo, yaar, madad karo”, Suneet
Singh asks him to “manage” only two
persons—Sanjay Dubey and Rajeev
Singh Parichha—if he wants to save his
life. Dubey is district president of the
BJP and Parichha is BJP MLA from
Jhansi’s Babina constituency.
Incidentally, an encounter did take
place in Mauranipur
on April 13, 2018, but
the police claimed
that all the criminals
managed to escape,
leading one to doubt
the role of the police.
The shocking part
of the audio clip,
which emerged on
social media, is
Suneet Singh’s boast
that he did not remember how many
people he had killed and thrown by the
wayside. Singh, described as a discred-
ited officer by his superiors, reportedly
admitted that the voice on the purported
clip was his. He was suspended and an
inquiry ordered into the whole affair.
Director-General of Police OP Singh
denied that encounters were fixed. He
said that the police officer had been
suspended and an inquiry ordered
against him. Suneet Singh’s criminal
past is no secret in the department. He
has faced charges of murder, rape and
firing from his licensed weapon in a
Kolkata dance bar. He was terminated
in 2007 but was reinstated after relief
from the high court. In 2017, the then
home secretary revoked eight adverse
entries for misconduct which enabled
Suneet Singh to get a promotion.
The two BJP leaders named in the
clip denied having been approached by
the criminal and demanded action
against the cop.
Suneet Singh was eventually sacked,
for the second time, on April 17.
—Atul Chandra
Gangster-copnexus
intendent of Police, Unnao. Since no
cognizance of her complaint was taken
or it was reduced to writing, she made
written complaint to the CM…”
The police claimed that the FIR was
lodged by the girl’s family under Sec-
tions 363/366 of the IPC for abducting
a minor to compel her for marriage. She
was subsequently rescued, the police
said, and three men were jailed for rape
under the Protection of Children from
Sexual Offences Act after her statement
before a judicial magistrate. Two female
relatives of one of the men were also
among the accused but were given a
clean chit.
The girl’s family lodged a new case
against Sengar and his family on
(L-R) Suneet Kumar Singh, Lekhraj Singh Yadav
OUTRAGE AND ANGER
A protest march in Moradabad against the
brutal rapes. Protests were also held in other
parts of the country
UNI

16 April 30, 2018
ItwasonlyafterChiefJusticeDilipBBhosale(left)andJusticeSumeetKumarofthe
AllahabadHighCourtrappedthegovernmentfor“beingdirectlyinleagueandunder
influenceoftheMLA”thattheCBIarrestedKuldeepSinghSengaronApril13.
April 4, 2018, for assaulting her father.
Investigation was said to be on when
the girl decided to attempt suicide. The
family was being continuously harassed
by Sengar and his men and the teenag-
er, who was sent to Maakhi under
police escort, had told the police: “Our
lives are in danger.”
T
he extent of police complicity in
shielding Sengar can be better
gauged from the fact that despite
the girl’s complaint of rape, first by
Sengar and then others over eight days
of her confinement last year, the police
did not collect evidence from her pri-
vate parts. With crucial evidence miss-
ing, the CBI, which is now investigating
the case, has been forced to start the
probe afresh by rebuilding the sequence
of events.
It was only after Chief Justice Dilip
B Bhosale and Justice Sumeet Kumar
rapped the government for “being
directly in league and under influence
of the MLA” that the CBI arrested him
on April 13. Government doctors—Chief
Medical Superintendent DK Dwivedi
and emergency medical officer Prashant
Upadhyay—have been suspended.
The government also suspended the
circle officer of Safipur, Kunwar Baha-
dur Singh, for ignoring the repeated
complaints of the victim. Before his
arrest, the MLA denied the charges as a
conspiracy to malign his image and said
it was the handiwork of the girl’s father
and uncle who had a criminal back-
ground. To prove his innocence, he non-
chalantly reached the office of SSP,
Lucknow, where he was not required,
and told mediapersons that he had gone
there to show that he had not commit-
ted any crime.
During the 2017 Vidhan Sabha elec-
tion campaign, the BJP had ripped
apart the Akhilesh Yadav-led Samajwadi
Party government for the poor law and
order situation in general and crime
against women in particular. Over a year
later, the shoe is on the other foot as
crime against women has gone up by 24
percent from January 1 to March 31
compared to the corresponding period
last year. According to a report, eight
women are being criminally assaulted in
the state every day. What Adityanath
must be peeved at is that while in 2016
there were 751 cases of rape, there is a
steady and scary rise in those numbers
in 2017 (873) and 2018 (899).
With the entire plank of the BJP’s
poll campaign about making the state
safe for women crashing, the govern-
ment now proposes to seek changes in
the law to allow the death penalty for
rape accused.
PROTECTION OR HARASSMENT?
The anti-Romeo squad of UP hauling up
youth in Lucknow
UNI

Lead/ UP/ Law and Order Crisis/ Case Withdrawals
18April 30, 2018
HILE the public per-
ception of the tenure
of Uttar Pradesh
Chief Minister Yogi
Adityanath is still
unclear, the state
government has stood by its promises of
“Ram Rajya” for the party associates.
So much so that it is covering up serious
criminal cases registered against
these people.
The state government announced
that it would withdraw all cases regis-
tered owing to political rivalry. This
resulted in the withdrawal of about
20,000 registered cases, including some
against Deputy Chief Minister Keshav
Prasad Maurya and Adityanath himself.
However, under the disguise of political
matters, even criminal cases are being
put down.
One of them is that of Swami
Chinmayananda Saraswati. In 2011,
Chinmayananda was accused of rape by
one of his students who spent many
years in his ashram. She alleged that she
was kept in an ashram in Haridwar and
raped by him.
Later, charges of rape and abduction
were filed against him at Shahjahanpur
police station in November 2011. Inci-
dentally, Chinmayananda has been a
three-time BJP MP, having won from
Badaun, Machchlishahr and Jaunpur.
He was appointed minister of state for
internal security in the Atal Behari
Vajpayee government.
Chinmayananda got away by getting
a stay order from the Allahabad High
Court. Now, the benevolent state gov-
ernment has decided to take back the
cases registered against him under IPC
376 and 506. On March 9, the district
magistrate of Shahjahanpur wrote to the
senior prosecution on this issue, while
the state government’s justice section
had already said on March 6 that these
charges be dropped.
However, the victim and her family
have voiced their displeasure against the
proceedings. The victim has addressed a
letter to the president, chief justice
and district judge, objecting to the
state government’s order.
The woman said: “This
same BJP party which was
giving slogans on their
commitment to da-
ughters’ safety is now
hell-bent on closing my
trial. It is very painful.
The government sho-
uld have waited for the
court’s decision. I have
petitioned in the
court for a warrant
against the
accused. He
should be sent to
jail as soon as
possible.”
Opposition
parties have
raised their voice against the state’s
action. Naresh Uttam, state president of
the Samajwadi Party, said that the
power to drop these charges rests with
the court and not the state government.
He said that an arrest warrant should be
issued against the former home minis-
ter. BSP state president Ram Achal has
accused the state government of func-
tioning completely against the law.
Recently, there were protests against
the state government when it dropped
charges against 131 people accused in
the Muzaffarnagar riots.
This custom of dropping cases is reli-
Hall of Infamy
Thegovernment’sattempttowithdrawcriminalcasesagainst
itspoliticianshasrevealedthemoralvacuumandlawlessness
prevalentinthe state
By Govind Pant Raju in Lucknow
W
Photos: UNI

giously practised by all parties who have
come to power in Uttar Pradesh. The
Akhilesh Yadav government had even
done this in a terrorism-related case,
which was later stopped by the court’s
intervention. The extent to which the
BJP government has started covering up
cases gives the lie to the promises it
made about working towards a crime-
free state.
W
hile the government was busy
clearing Chinmayananda’s
name, its Unnao MLA,
Kuldeep Singh Sengar, made the situa-
tion more complicated as he has been
accused not just of rape, but the murder
of the victim’s father.
Uttar Pradesh has had a notorious
reputation of having several ministers
and MLAs accused of illicit sexual rela-
tions and murder charges. In a similar
case, Amarmani Tripathi, once a minis-
ter in the state, is currently serving a
sentence along with his wife in poetess
Madhumita Shukla’s murder case.
In 2006, Merajuddin, a BSP minis-
ter, was charged with the sexual harass-
ment and murder of a teacher.
In 2007, another BSP minister, Ram
Mohan Garg, was charged with rape,
followed by a similar case against anoth-
er BSP MLA in 2008.
Anand Sen Yadav, also a BSP MLA,
was charged with kidnapping, sexual
harassment and murder of a party work-
er in 2011. While he was sentenced by
the lower court in 2013, he was subse-
quently discharged by the Allahabad
High Court.
In 2010, BSP MLA Purushottam
Dwivedi was accused of the gangrape of
a party worker, Sheelu. Instead of the
victim getting justice, the MLA accused
her of stealing his mobile phone and
even got her arrested.
Later, as the issue got heated,
Mayawati appointed the CB-CID to fur-
ther investigate this case. And in a sur-
prise development, the MLA, in order to
save himself, declared himself impotent.
On June 4, 2015, he was sentenced to 10
years’ imprisonment after the CBI com-
pleted a fair inquiry.
During the tenure of the Samajwadi
Party headed by Akhilesh Yadav, one of
his ministers, Gayatri Prasad Prajapati,
was accused of raping a woman and
sent to prison. The police filed an FIR
against him only after being served a
notice by the Supreme Court.
While some of the victims have got
justice eventually, the present case of the
Adityanath government trying to save
Chinmayananda raises many questions
regarding the moral authority as well as
intent of this government.
Amarmani Tri-
pathi (left), a power-
ful BSP minister in
the Mayawati dis-
pensation, is cur-
rently serving a sen-
tence along with his
wife for poetess
Madhumita Shukla’s murder (2003).
And in 2017, his son, Aman Mani
Tripathi, was formally charged by the
CBI with murdering his wife, Sara
Singh.
Merajuddin, a BSP minister, was
charged with the sexual harassment
and murder of a teacher in 2006.
Another BSP minister, Ram Mohan
Garg, was charged with rape in 2007.
BSP MLA
Purushottam
Dwivedi was
accused of gang-
raping a party
worker, Sheelu, in
2010. On June 4,
2015, he was sen-
tenced to 10 years’
imprisonment.
Anand Sen,
another BSP
MLA, was
charged with kid-
napping, sexual
harassment and
murder of a party
worker in 2011. He was sentenced by
the lower court in 2013 and dis-
charged by the Allahabad HC.
Gayatri Pra-
sad Prajapati,
an SP minister,
was accused of
raping a woman
and sent to
prison in 2017.
Infamouspoliticos
POWER PLAY
(Facing page) Swami Chinmayananda
Saraswati; (from top) UP Deputy CM
Keshav Prasad Maurya; CM Yogi
Adityanath; former CM Akhilesh Yadav

Supreme Court/ Judge Loya’s Death
20 April 30, 2018
SUPREME Court bench
of Chief Justice Dipak
Misra and Justices AM
Khanwilkar and DY
Chandrachud has said
that the death of CBI spe-
cial judge BM Loya was due to “natural
causes” and dismissed petitions in this
regard. The Court also said the petitions
were scandalous because they cast
aspersions on the veracity of the state-
ments of other judges who were lodged
in the same room as Judge Loya at Ravi
Bhavan in Nagpur, in his last hours.
Hearing the plea for an independent
probe into the sudden and mysterious
death of this judge who was handling
the Sohrabuddin Sheikh fake encounter
death case in which BJP President Amit
Shah (also home minister during the
Gujarat riots) is an accused, the bench
found no merit in the case and dis-
missed it. It decided that there would
Athree-judgebenchoftheapexcourt,whileunanimouslydismissingthisimportantcase,said
therewouldbenoprobeintothematterandthatpetitionsinthisregardwerescandalous
By Sujit Bhar
A
No Foul Play, Says Court
January 22
Senior advocate Harish Salve (for the
Maharashtra government) said that a
discreet inquiry was conducted by his
client to probe the death of Judge Loya
and four judicial officers had concluded
that there was no foul play involved.
Salve also asserted that the special CBI
judge had died of cardiac arrest.
However, Dushyant Dave (for the
Bombay Lawyers Association) said:
“There are so many things which
showed that he (Judge Loya) never
checked in (at the hospital mentioned
by Salve).”
February 2
Dave asked: “Why was the dead body
not sent to his house or his family not
informed? They say that they informed
his friends. It is a serious matter. The
State is resisting it. Our case is that the
death is suspicious. In reports, there
are many discrepancies. Let’s accept
(for argument’s sake) that the death
was natural. Even then, what’s the
harm in having an investigation if so
many questions have come up before
the bench? The bench must direct that
let the pleadings be completed so that
he has time to file the rejoinder.”
Dave also said: “It was surprising
that Special CBI judge MB Gosavi (who
replaced Judge Loya) disposed of the
case so quickly, even though thou-
sands of pages of evidences was
recorded. The CBI didn’t file any appeal
as to who was directed to investigate
despite a mandate by the SC to file
chargesheet against Amit Shah
(BJP president).”
Dave argued: “On December 1,
TheDepositions
Here are some key depositions
during the Supreme Court hearing
of the Judge Loya case

be no probe into the death and made it
clear that it had actually stopped short
of ordering contempt proceedings
against the petitioners.
While reading the judgment (there
was no dissenting voice in the order),
Chief Justice Misra said: “We can’t
doubt the statements of the judicial offi-
cers who were with Loya” in his last
hours. “Documents placed on record
and their scrutiny establishes that Judge
Loya’s death was due to ‘natural cause’.”
The CJI further said: “All the three
judges stayed in the same room. There is
no basis for the court to doubt that. In
the reference book, there is no mention
of Judges Modak and Loya. All of them
occupied the same room. No doubt
on that.”
He also referred to the Caravan
report which mentioned Loya’s conver-
sation with his wife. He then said: “An
attempt was made to scandalise this
case.” He referred to the evolution of the
PIL and how it was “misused, which is a
serious issue to look into”.
“It is the duty of the court,” said Chief
Justice Misra, “to look into the fact (as
to) which PIL is genuine and which one
is filed under the facade of political
activity. Business rivalry is to be resolved
in a competitive manner on the terms of
the market….The present case is indeed
a case in point. The petitioners have no
mala fide intention, but to protect the
independence of judiciary. The judiciary
is there to preserve the rule of law. If the
court doesn’t stand by them, it will be a
failure of our duty to impart justice.”
He further mentioned certain impor-
tant submissions of senior counsel
Indira Jaising, V Giri, Prashant
Bhushan and Dushyant Dave. He said
that Bhushan had once made the state-
ment that Justices Chandrachud and
Khanwilkar had been judges of the
Bombay High Court and knew the judi-
cial officers and might face a similar
danger. Regarding this, the CJI said:
“There are higher values that guide
us.” He said serious attacks have been
made on the two judges of the Bombay
High Court. “We would not initiate
investigation via criminal contempt of
the lawyers...”
The issue was heard in detail over
there was falsification of records by the
police. Justice Loya was first taken to
Dande and not taken to Lata
Mangeshkar Hospital which has better
facilities. This cannot be done to your
own person,” he said, referring to the
fact that Justice Loya was not taken to a
good hospital. “Why was Justice not
taken to any other good hospital nearby?
What happened between 4 and 6:15 am
that day? During the treatment, at 6:15
am, Justice Loya was declared dead.”
“No proper action and treatment was
given to Judge Loya for two and-a-half
hours in nearby hospitals despite him
having complained about chest pains
earlier... The entire family of Justice Loya
lived in Mumbai. Is it acceptable to hand
over the body of the judge to a stranger
by the judges? Let them present the
photographs of the marriage ceremony.
Let us see who all were present at
that time.”
Senior advocate Mukul Rohatgi coun-
tered: “The handing over of the body of
Justice Loya to a stranger never hap-
pened. A district judge was present there
and his statement was recorded.”
However, Dave questioned: “Justice
Loya died under the most questionable
circumstances. Why was the body of
Justice Loya sent to his native place
when his entire family lived in Mumbai?
The Chief Justice of the High Court was
repeatedly going out of his way to help
the subordinate judges. Hospital records
say that the judge was brought dead.
The judge was brought dead and the bill
charged upon the body of the dead
judge was horrific. Mr Rathi also says
that the judge was brought dead to the
hospital. A person who dies of heart
attack and you do neurosurgery. Every
fact is revealing shocking facts. How you
can say that a person who died out of
heart attack underwent neurosurgery?”
Dave also said: “The post-mortem
report is also fabricated. The post-
mortem register recorded some other
time, when the post mortem report was
done by 10:50 am. Post-mortem was
done 4 hours after the death. After 4
hours of death, the body becomes stiff.”
There was a demand for calling for
the judge’s mobile records.
February 5
Senior counsel V Giri said there was
no document which established what
happened in Dande (hospital). The doc-
ument does not reveal what treatment he
(Loya) underwent.
He said that Page 52 of the compiled
documents submitted was incomplete.
That page states two injections were
given but there are no details by which it
can be established what treatment was
carried out.
He also said that while post-mortem
was conducted by Dr Kunda in Nagpur,
no documentary evidence has been
recorded. Which means no statement
was taken from that doctor.
FINAL ORDER
(L to R) The SC bench of Chief Justice
Dipak Misra and Justices AM Khanwilkar
and DY Chandrachud gave the verdict

Supreme Court/ Judge Loya’s Death
22 April 30, 2018
several sessions by the bench, with dep-
ositions by senior lawyers. A probe, if
ordered, would not only have opened
old wounds, but would have put the cur-
rent government in an uneasy position.
T
he Loya case is three years old
and was virtually forgotten till it
was dug out by Caravan which
had several in-depth interviews that
apparently cast a long shadow on com-
ments made by the judicial officers and
judges after his death. Many of them
had worked with Judge Loya.
There were many unanswered ques-
tions—the timing, choice of hospital
where Judge Loya was taken, the veraci-
ty of the ECG (if at all carried out), the
judges’ comments… The bench ques-
tioned the fact that while four people
(judges) were staying in one room at the
Ravi Bhavan VIP guest house, Loya’s
name not in the log of the guest house.
There was the issue of the removal of
the judge’s security cover just before he
left for Nagpur. As the judge in a sensi-
tive case, he had been allotted personal
security which was missing when he was
attending the marriage in Nagpur.
The circumstantial issue was of the
new CBI judge who took over after
Loya’s death and dismissed the case
quickly despite mountains of docu-
ments. There was also the question of
umpteen witnesses turning hostile.
Caravan and the petitioners questioned
the logistics of every move and the top
court found this unpalatable. Ordering a
probe would have complicated matters
and would add no further clarity, it felt.
The petitioners questioned why Loya
was first taken—at around 4 am—to
Dande Hospital which did not have ade-
quate facilities (see box). Here Loya was
given medicines before those accompa-
nying him attempted to remove him to
another hospital, Meditrina, where he
was declared brought dead.
Two petitions were filed—one by
Tehseen Poonawalla, who claims to be a
“political trendsetter” and another by
Bandhuraj Sambhaji Lone, allegedly a
journalist from Maharashtra. The CJI
agreed to hear the petitions, which were
clubbed together, on January 12.
This case was also one
of the primary reasons
for a mutiny of sorts
among four judges of the
top court. On January 12,
four senior judges held
an unprecedented press
conference to express
their dissatisfaction with
the chief justice allocat-
ing specific cases to specific benches.
This precipitated a huge crisis in the top
court and the allocation of the Loya case
was a prime issue because it was a polit-
ically high-profile and sensitive case.
Initially, this case was assigned to a
bench that had Justice Arun Mishra on
it. That did not go down well with the
four judges. Later, Justice Mishra
recused himself from the case and
Justice Dipak Misra assigned it to the
CJI bench. Meanwhile, as the issue got
politicised, the Congress said that the
judgment would raise more questions
and leave many of them unanswered.
“Dispassionate analysis of Loya judge-
ment must await its full reasoning. But
unless logical reasons found in it, it will
raise more questions and leave many
unanswered [sic],” Congress spokesper-
son Abhishek Singhvi said on Twitter.
Congress communications in charge
Randeep Surjewala said the PM should
order a Supreme Court-monitored
probe to ascertain the exact reasons for
the death of judge Loya.
Union Law Minister Ravi Shankar
Prasad said the Congress and Rahul
Gandhi had conspired to target Shah. “It
was a conspiracy by the Congress and its
chief, Rahul Gandhi, to finish the politi-
cal career of BJP President Amit Shah,
as part of which wrong accusations were
made and an over 100-strong delegation
was taken to the president.”
I
n another case of clean acquittal,
the Gujarat High Court on April 20
set aside the 28-year jail term of
former BJP minister in Gujarat and
BJP President Amit Shah’s former
confidante, Maya Kodnani, in the
2002 Naroda Patiya case. The route
through which Kodnani escaped jail
has the benefit of the doubt.
The Court’s division bench of
Justices Harsha Devani and AS
Supehiya had reserved its order in
August 2017 after hearings had been
concluded. In August 2012, a special
court set up for cases presented by a
Special Investigation Team had sen-
tenced 32 people, including Kodnani,
to life imprisonment. Former Bajrang
Dal leader Babu Bajrangi was sent to
jail till death. His conviction has
been upheld.
Kodnani’s last hope was a possi-
ble deposition in her defence by
Shah. That did not happen. However,
her role in the case where, on
February 28, 2002, during the Godhra
riots, 11 Muslims were killed in
Naroda Gram, could not be estab-
lished in court.
Kodnanialsoacquitted
PROTEST DEMO
Lawyers demanding a
probe into Judge Loya’s
death in New Delhi

Supreme Court/ Opposition Move Against CJI
HE Congress, along with six
other opposition parties—the
CPI(M), NCP, SP, CPI, BSP
and IUML—submitted a
notice for the impeachment
of Chief Justice of India (CJI) Dipak
Misra to Vice-President and Rajya
Sabha chairman M Venkaiah Naidu on
April 20. The TMC and the DMK, ini-
tially rooting for the impeachment,
decided to stay out of the process.
Several issues emerge from this
action. First, the Congress-led move is
destined to fail. While the constitutional
requirement for an impeachment
motion to move is 50 MPs, the petition
shows 71 names, of which seven have
retired. Hence, in effect, it will be a rep-
resentation of 64 MPs. This is too small
a number to even scratch the legislative-
judicial surface.
Secondly, the entire process is based
on the principle that the CJI should
allot cases as per merit, when he has
been legally assigned as the master of
the roster and his decisions on the
administrative side of the Supreme
Court are binding.
CRACKS WITHIN
Thirdly, the process shows up cracks not
only within the opposition but within
the Congress itself. With stalwarts such
as Salman Khurshid, P Chidambaram
and Abhishek Singhvi not signing the
petition and the party not even appro-
aching former Prime Minister Man-
mohan Singh (because of his stature) for
his signature, the entire process loses
much of its import.
This public display of cracks within
the opposition might be interpreted
negatively by the party faithfuls who
were euphoric about the hemming in of
the NDA before the 2019 general elec-
tions through several horrific instances,
including the Kathua and Unnao rapes.
Fourth is the unusual Congress slant
towards an issue that might harm the
only institution that still retains public
faith and that, too, knowing fully well
that it will be defeated even before the
fight has begun. The common man
would wonder why the party is not con-
centrating on more pressing issues to
corner the NDA.
NO PRECEDENT
And fifth, of course, is the fact that not a
single judge, leave alone a chief justice
of India, has ever been impeached. Even
Justice Soumitra Sen of the Calcutta
High Court had put in his papers before
he was ousted in the impeachment
process. At most, this will leave a large
footnote in the curriculum vitae of
Justice Dipak Misra, possibly coming in
the way of other serious appointments
when he retires in October.
The petition has cited the January 12
press conference of four judges of the
top court, saying: “When the judges of
the Supreme Court themselves believe
that the judiciary’s independence is at
(sic) threat, alluding to the functioning
of the office of the CJI, should the
nation stand still and do nothing?”
The killing point was in what the
Congress said next. It said the parties
had to move the notice with a “heavy
heart” as the CJI had not “asserted the
independence of judiciary in the face of
interference by the executive”. In effect,
the BJP has just been allowed a leeway
into an issue that it was dealing with kid
gloves on.
The issue echoes in Salman Khurs-
hid’s comment. He said: “Impeachment
is too serious a matter to be played with
frivolously on the grounds of disagree-
ment with any judgment or point of
view of the court.”
Impeachment Drama
FRUITLESS EFFORT? (L-R) Congress
leaders Ghulam Nabi Azad and Kapil Sibal,
CPI’s D Raja and lawyer KTS Tulsi at a
press meet on CJI’s impeachment move
T
ThoughsevenpartieshavesubmittedanoticeforChiefJustice
DipakMisra’simpeachment,whatareitschancesofsucceeding?
By Sujit Bhar

Spotlight/ Witness Protection
24 April 30, 2018
YSTERY surrounds the
recent deaths of Jabal-
pur Medical College
dean Dr Arun Sharma
and Aaj Tak journalist
Akshay Singh who was
investigating the Vyapam scam in
Madhya Pradesh. Days earlier, MR
Gopinatha Pillai, father of 2004 Ishrat
Jahan encounter victim Pranesh Pillai,
died in a road accident. He was a peti-
tioner in the encounter case which is
going on in the Gujarat High Court.
Similarly, in the Asaram Bapu child rape
and murder case, three witness murders
took place in 2014 and 2015.
All these unnatural deaths bring into
question the safety of witnesses, which
has been a huge hurdle in the dispensa-
tion of justice in India.
Keeping this in mind, the centre, in
consultation with the Bureau of Police
Research and Development and NALSA
(National Legal Services Authority), fra-
med a draft witness protection scheme.
The scheme has been marked to differ-
ent state governments for suggestions
and comments.
In the Asaram case, four men—
Mahendra Chawla, former personal
assistant to Asaram’s son, Narayan Sai;
Naresh Gupta, father of late Akhil
Gupta, one of the murdered witnesses;
Narendra Yadav, a journalist for Dainik
Jagran and Karamveer Singh, the father
of an alleged minor rape survivor of
Asaram—petitioned the Supreme Court
in 2016 seeking protection against death
threats and attacks which they claimed
they had survived. “We do not want to
die,” their petition read.
Chawla lives in Haryana, the other
three in Uttar Pradesh. Besides protec-
tion, they sought an SIT probe into the
disappearance of witness Rahul Sachan,
a former aide of Asaram, who had sur-
vived an attack in February 2015, but
was now feared dead.
Among those already killed in the
case were Asaram’s Ayurvedic physician
Amrut Prajapati, gunned down in Raj-
kot in June 2014, Akhil Gupta, his cook,
shot in Muzaffarnagar on January 12,
2015, and Kirpal Singh, an employee of
a transport firm, whose owner’s daugh-
ter had lodged a rape complaint against
Asaram, also shot on July 10, 2015.
In response to their plea, a bench of
Justices AK Sikri and Ashok Bhushan
on March 24, 2017, ordered the Uttar
Pradesh and Haryana governments to
provide full protection to the witnesses.
“You must have a scheme for the protec-
tion of witnesses. It is high time,” it
observed. The apex court order
came as counsel Utsav Bains, appearing
for the witnesses, told the bench that
Uttar Pradesh was doing naught for
their security.
Pursuant to this order, a scheme was
drafted and circulated among state gov-
ernments on March 22. Comments and
suggestions have to be submitted by
May 31.
The scheme has three salient fea-
tures. These are:
(a) the decision of whether to grant pro-
tection to a particular witness will be
processed by the legal services authority
Inanattempttosavenumerousvulnerablepeople,thecentre
hascirculatedanewdraftwitnessprotectionscheme.How
strongisitanddoesitreallyprovidefoolproofsecurity?
By Sucheta Dasgupta
M
Silencing the
Evidence
Anthony Lawrence

instead of the police in a bid to
depoliticise it
(b) the budget required to protect a wit-
ness will be made up partly by state gov-
ernment funding and partly collected
from fines and costs imposed in crimi-
nal cases
(c) a panel of policemen will decide the
level of threat perception and the cate-
gory of protection to be provided to
the witness.
A
mong the protection measures
are ensuring that the witness
and accused do not come face to
face during the trial, monitoring of
email and telephone calls, having the
telephone company assign the witness a
different phone number, installation of
security devices at the witness’ home,
concealment of the identity of the wit-
ness, assigning emergency contact num-
bers to the witness, patrolling around
the witness’ home, temporary change of
residence of a witness, escort to and
from court in a government vehicle,
holding of in-camera trials, allowing
someone to accompany the witness dur-
ing recording of statement and deposi-
tion, specially designed courtrooms with
live links, one-way mirrors, screens and
separate passages for witness and
accused, expeditious recording of depo-
sition and awarding periodic financial
aid to witnesses for relocation, suste-
nance or starting a new profession
if desired. In appropriate cases, upon
request by the witness and based
on the threat perception by the police,
he/she will be conferred a new identity.
A new identity will mean a new name,
profession and parentage with support-
ing documents acceptable to govern-
ment agencies.
However, the new identity should
not deprive the witness of his/her exist-
ing educational, professional and prop-
erty rights.
In case a witness has lodged a false
complaint, the State Legal Services
Authority can initiate recovery of the
expenditure incurred from the Witness
Protection Fund.
Six-time Supreme Court Bar Asso-
ciation president and senior counsel
Pravin Parekh has welcomed this move.
“It is a much-needed scheme. It should
have been conceived a long time ago.
However, I have a word of caution. This
scheme will not be successful unless
there is systemic reform and a holistic
approach is taken,” Parekh said.
The draft, however, is far from thor-
ough. Sidharth Luthra, senior advocate
in the Supreme Court, said the measures
to ensure that protection is provided to
witnesses under this scheme are not
well-defined. “An obvious question that
comes up on reading this draft is this—
Who will be entitled to protection under
this scheme? Is it the witness? Is it his
family? Is it anyone from the investigat-
ing agency? That parameter has not
been set,” he told India Legal. Indeed,
the term witness is defined in the
scheme merely as “someone who pos-
sesses information or document about a
crime regarded by the competent autho-
rity as being material to any criminal
proceedings and who has made a state-
ment or who has given or agreed or is
required to give evidence in relation to
such proceedings”.
Luthra suggests that the threat per-
ception and security level categories in
the draft should be linked to the four-
tier X, Y, Z and Z+ categorisation of
WERE THEY ELIMINATED?
(Clockwise from above left) Jabalpur Medical
College dean Dr Arun Sharma; MR
Gopinatha Pillai, father of 2004 Ishrat Jahan
encounter victim Pranesh Pillai; Aaj Tak
journalist Akshay Singh

26 April 30, 2018
the ministry of home affairs for easier
implementation.
“And there should be administrative
support and a legislative and regulatory
framework to ensure that protection is
provided. If security is breached, it
should be made punishable, there
should be legal consequences,” Luthra
said. “The scheme is in a nascent form.
It is, no doubt, a good idea, but must be
polished and fine-tuned. The financial
and administrative support is of crucial
importance and must be put in place for
it to be a success as it is in the West,”
he added.
I
n the US, the hugely successful
Federal Witness Protection
Program—or Witness Security
Program (WITSEC)—instituted in 1971,
has literally given new lives to over
18,000 witnesses as of 2016. The gov-
ernment spends upwards of $10 million
annually to run this programme. The
returns make it meaningful as trials
involving WITSEC have an 89 percent
conviction rate. A large proportion of
these witnesses are former criminals,
but recidivism is low—a little over 10
percent—which is another marker of the
success of this programme.
In India, meanwhile, the situation is
radically different. As Justice K Sree-
dhar Rao, former acting chief justice of
Gauhati High Court, told India Legal:
“Witnesses turn hostile for two rea-
sons—monetary considerations (they
are bribed) and because there is no
assurance of safety. In cases of serious
crime, nobody in the vicinity is prepared
to depose; before recording of evidence
takes place, the witness turns hostile.”
He felt that more research is
required to develop and improve this
scheme. In the absence of the right
measures, financial grants going into the
scheme run the risk of being misused.
Senior counsel Rupinder Singh Suri
also believes that though this scheme is
a good beginning, it “cannot be pre-
pared in isolation and has to be made
part of the entire process of police and
judicial reforms”.
He told India Legal: “At the present
stage, the police should not be tasked
with preparing the threat analysis
reports for witnesses. In far too many
cases, the threats come from none other
than the police. I suggest the legal serv-
ices authorities have their own force to
implement this scheme.” He said some
of the lacunae in the scheme were glar-
ing. “How much budget is required is
not mentioned in the scheme,” he said.
“Its success would depend on how
quickly the trial gets over. If it continues
for eight-nine years, one by one all wit-
nesses would turn hostile. This is espe-
cially when documentary evidence is not
involved. Ideally, trials in such sensitive
cases should get over in three years.”
He had some more suggestions for
this scheme to be successful—a provi-
sion for online application and submis-
sions for those who do not want to come
to court, counselling for witness’ fami-
lies who often hold them back from giv-
ing testimony, and monitoring and
upgrading the threat status in case a
prisoner’s sentence gets commuted.
A close look at the term witness as
defined in the scheme shows that it logi-
cally includes the whistleblower, people
who alert the authorities to corruption,
abuse of power or crime against a public
servant. The whistleblower has some
protection on paper in the form of the
Whistle Blowers Protection Act, 2014,
but this law came under severe criticism
as scores of witnesses continued to dis-
appear or be killed.
A strong new initiative will thus
extend vital support to these courageous
individuals and act as a spur for the
speedy disposal of cases.
REPOSING FAITH
A petition was filed in the SC for witness
protection in the Asaram Bapu case
Spotlight/ Witness Protection
SeniorcounselRupinder
Suribelievesthescheme
isagoodbeginning,but
shouldbepartofthe
entireprocessofpolice
andjudicialreforms.
FormerSCBApresident
andseniorcounsel
PravinParekhfeelsthat
theschemeshouldhave
beenconceivedalong
timeago.
JusticeKSreedharRao,
formeractingchief
justiceoftheGauhati
HighCourt,feelsmore
researchisneededto
improvethisscheme.

Health/ Organ Donation
28 April 30, 2018
N a country where donor kidneys
are in short supply, some questions
are often asked. One of them is
whether Finance Minister Arun
Jaitley, who was recently admitted
to AIIMS for a kidney transplant,
would have to undergo the same proce-
dure as the rest of the country under the
Transplant of Human Organs and
Tissue Rules, 2014.
There was a precedent—in 2016,
Minister of External Affairs Sushma
Swaraj got a kidney within a matter of
weeks (see box). She was admitted to
AIIMS on November 7, 2016, and her
surgery was performed successfully on
December 10. More curious was the fact
that there were no related donors,
which, according to the Act, could be a
spouse, mother, father, daughter, son,
grandmother or grandfather. A distant
relative, legally classified as an unrelated
donor, came to her rescue.
While people with clout have to wait
for just a few days for a kidney, it can
take weeks, even years, for a commoner
to get legal clearances in this regard. Are
the laws different for the powerful and
for commoners in India?
TRAUMATIC LIFE
Just as Jaitley announced the news of
his illness on Twitter, one Sunanda
Brahma, who has been on dialysis for
over four years, took to Facebook to
reveal her struggle. She said in her post:
“Today I feel that once again my nose
has been rubbed in the ground and I
have been told that we live in a country
where we do not have an equal right to
live and that there are different strokes
for different folks.” A few months after
her kidney failed, an unrelated donor
from a weaker section of society offered
her a kidney. In return, Brahma had to
look after the education of the donor’s
children. Her application was rejected.
And now, due to complications, she is
not eligible for a cadaver organ (from a
brain-dead person) either. “My point
here is that how do people like Sushma
Swaraj and Arun Jaitley go through
transplant surgeries in a week’s time
with unrelated donor kidneys arranged,
doctors ready and waiting to do the sur-
geries, authorities giving clearances
overnight?” she posted.
Supreme Court advocate Mahendra
Kumar Bajpai told India Legal: “It is not
that everyone jumps the queue. There is
a national roster and very stringent
laws. The ones who have got the kidneys
are ultimately ministers. Let them have
that privilege. I am not aware of the
procedure that they went through.
However, the Act is good. The problem
is with the implementation.”
The Act states: “Living donors are
classified as either a near relative or a
non-related donor. A near-relative
(spouse, children, grandchildren, sib-
lings, parents and grandparents) needs
permission of the doctor in-charge of
the transplant centre to donate his
organ. A non-related donor needs
For Want of a Kidney…
Whilepeoplewithcloutcangetthisorganwithindays,commonersrunfrompillartopostasa
complexmedicalandlegalsystemandhighdemandleavethembythewayside
By Usha Rani Das
I
PAINFUL PROCESS
A young kidney patient undergoing dialysis,
which helps to purify the blood
noorfoundation.org

permission of an Authorisation Com-
mittee established by the state to donate
his organs.”
The authorisation committee’s work
is to ensure that there is no commercial
intent in the donation. A non-relative
donor can be considered only if one is
willing to offer a kidney out of “affection
and attachment” to the donee, and not
for money. It is because of this provision
that unrelated donations are viewed
with suspicion.
DIFFERENT RULES
While surgery for a kidney transplant
from a related donor is cleared at the
hospital level, that involving an unrelat-
ed donor requires clearance at the state
level. Each state has its own rules and
these range from seniority on the wait-
ing list to complex calculations that take
into account the severity of the disease.
The authorisation committee, formed
under the Act, checks the background
and the relation of the unrelated donor
to the recipient. It also has to check the
socio-economic background to ensure
that the procedure is not taking place
for monetary compensation. It even
checks the donor’s income tax returns. If
the donor is from a state other than the
one where the surgery is being per-
formed, one needs a clearance from the
donor’s home state authorisation com-
mittee too.
Dr Sunil Shroff, managing trustee of
Mohan Foundation, a Chennai-based
non-profit organisation, wrote in a
newsletter that the section that allows
unrelated donors is often abused. He
stated: “Many a time, the authorisation
committee will overlook such cases
sometimes sympathising with the recipi-
ent and clearance is given in what is
clearly likely to lead to commercial
transaction.”
Dr Yatin Mehta, president of the
Indian Society of Critical Care Medicine,
said that though the Act is stringent,
there is gross misutilisation of resources
which extends the suffering of patients.
He told India Legal: “When someone is
brain-dead, the doctors can disconnect
the ventilator only after the family gives
consent for organ donation. You cannot
disconnect it if the family disagrees.
This is misutilisation of resources. It is
a flaw of the system. Secondly, the act
refers to living will. That means one
NABBING CULPRITS
The accused in the Apollo Hospital kidney
racket case being produced in court in Delhi
Nearly2.2lakhpeopleawaitkidney
transplantsatanygiventimeinIndia,of
whomonly15,000endupreceiving
akidney.Overfivelakhpeopledie
annually,waitingforatransplant.
November 7, 2016: After being in
and out of hospital for a few months,
Sushma Swaraj, external affairs minis-
ter, was admitted to the All India
Institute of Medical Sciences (AIIMS).
November 16: Swaraj announced
news of her kidney failure on Twitter.
A flood of people offered her their
kidneys. The Transplant of Human
Organs Act only allows for the closest
relatives of the patient to be donors.
Swaraj’s husband was ruled out
and so was her daughter as she was
diabetic and suffering from obesity.
In the weeks that followed, a woman
in her 40s, legally classified as a “living
unrelated” donor, was found for the
transplant and clearance was granted
by the authorisation committee of
AIIMS.
December 10, 2016: Swaraj’s five-
hour-long surgery was successfully
conducted at AIIMS by a team which
included the director of AIIMS, MC
Mishra, surgeons VK Bansal and V
Seenu and nephrologist Sandeep
Mahajan.
December 19: Swaraj was dis-
charged from AIIMS. Authorities said
she was recuperating steadily and was
fit enough to undergo post-operative
care at home.
Swaraj tweeted and thanked the
doctors: “I am grateful to the dedicat-
ed team of Doctors, Sisters, techni-
cians and staff of AIIMS. They have
lived up to the reputation of AIIMS.”
—By Lilly Paul
Swaraj’sSuccessful
Operation

Health/ Organ Donation
30April 30, 2018
can make a will while alive stating that
one wishes to donate organs after death.
In that case also, the hospital has to
have a committee and it has to involve
the local magistrate. You still have to go
through the court to certify that this
person wishes to donate his organs.
They have made the system very
complicated.”
COMPLICATED PROCESS
Naresh Singhania has been on dialysis
for five years now. He told India Legal:
“My family started the paperwork in
June 2015. After four months of strug-
gle, we got the clearance for a kidney
transplant from a related donor. If a
related donation takes this much time,
imagine how long it will take for an
unrelated one.”
In another case, Mumbai-based
lawyer Nitin Vhaskar was granted per-
mission by the National Organ and
Tissue Transplant Organisation
(NOTTO), the central government body
in charge of the country’s deceased
donor transplant programme, to bypass
the waiting list for a kidney in 2016. A
dialysis patient, Vhaskar was approa-
ched by organ donation counsellors
when his brother, Sandeep, was declared
brain-dead. He consented on the condi-
tion that he receive one of the kidneys.
The matter immediately came up before
the Zonal Transplant Coordination
Committee in Mumbai who approached
NOTTO for advice. It was past midnight
when the organisation called and grant-
ed permission for the allocation and the
transplant was carried out.
The complexities of the system have
sometimes forced people to approach
high courts. Forty-six-year-old DK
Ravikumar’s application was rejected by
the health and family welfare depart-
ment on the ground that he had failed
to establish the relationship between the
donor and donee, and hence there was a
commercial motive between them.
Ravikumar, a farmer from a village in
Maddur taluk of Mandya district,
Karnataka, was afflicted with dengue in
2013. The medication given for its treat-
ment resulted in both his kidneys failing
and he was advised to get a renal trans-
plant. However, when he found a donor,
his application was rejected by the
authorisation committee on the suspi-
cion that the donor was doing it for
money. Ravikumar then moved the
Delhi High Court in January 2018
against this order and asked the Court
to grant permission for a kidney trans-
plant. The Court established that the
donor knew the donee well and asked
the health department to grant permis-
sion on April 18.
While Vhaskar and Ravikumar were
lucky, Nahid Anwar lost her husband in
2017 though his name was included in
the hospital’s list for kidney transplant a
year earlier. And there is the well-known
case of former Maharashtra Chief
Minister and Union Minister Vilasrao
Deshmukh who died of multiple organ
failure in Global Hospital in Chennai
in 2012. A delay in harvesting and
transplanting an organ led to his death.
“Had we got a liver, he would have had
a chance. Last night, a brain-dead donor
died before we could transplant. Three
donors were available today, but it was
too late,” Dr K Ravindranath, chairman
of the Global Hospital Group, told
NDTV.
HIGH DEMAND
And that is the main problem in kidney
donation—the abysmally low rate of
donation in India. Nearly 2,20,000 peo-
ple await kidney transplants at any giv-
en time in India, of whom only 15,000
end up receiving a kidney. Over five lakh
people die annually, waiting for a trans-
plant, despite their name being on the
waiting list. The rate of 0.5 donors per
10 lakh people in India is one of the
CRITICAL CARE
(Clockwise from
right) While finance
minister Arun Jaitley
awaits a kidney
transplant, Tamil
Nadu politician
V Sasikala’s
husband,
M Natarajan, had a
successful surgery;
doctors perform a
kidney transplant
in Srinagar
UNI

lowest globally.
Bajpai said it is because of how
people perceive organ donation in the
country. He said: “They somewhere con-
nect it with kidney trade. There have
been instances where the doctors have
declared patients brain-dead even
though they aren’t as they want to sell
the organs. This creates distrust in the
system and hence, people often don’t
donate organs.”
Growing anomalies in the system
make the situation worse. On April 17,
2018, Goa Health Minister Vishwajit
Rane ordered an inquiry into the trans-
fer of a brain-dead man’s organs which
had been harvested at a private hospital
in Goa to Mumbai instead of being
donated to a patient waiting for trans-
plant at Goa Medical College and Hos-
pital (GMCH) nearby. Dr Astrid Lobo
Gajiwala, the director of the Regional
Organ and Tissue Transplant Organis-
ation, Western Region, Mumbai, wrote a
letter to Goa’s health services director,
Dr Sanjiv Dalvi, over the need to set up
a State Organ and Tissue Transplant
Organisation (SOTTO). He stated that
without SOTTO, the state does not have
the approved list of kidney patients
waiting for transplants. The state also
does not have an emergency cross-
matching facility.
In a similar incident, suspicions
arose when Tamil Nadu politician V
Sasikala’s husband, M Natarajan, under-
went dual organ transplant for his kid-
ney and liver from an unrelated donor
who was airlifted from Thanjavur to
Chennai. The donor, N Karthik, 19, suf-
fered severe head injuries and was
admitted to a government hospital in
Thanjavur. Later in the night, he was
airlifted to the hospital in Chennai
where Natarajan was admitted. Karthik
was declared brain-dead. The incident
raised several questions from political
parties and doctors—if Sasikala jumped
the queue, how could the family of
Karthik, who earned a living putting up
banners of political parties, afford to
airlift him? Was this a case of commer-
cial donation?
SINGAPORE BECOMES A HUB
In countries like Singapore, Australia
and Iran, financial compensation for liv-
ing organ donors is legal. Hence, the
demand and supply are almost on a par.
Samajwadi Party leader Amar Singh got
his kidney transplant procedure done at
Mount Elizabeth Hospital and Medical
Centre in Singapore in 2009. Reports
stated that an unidentified party worker
close to him was the donor.
Experts in India do not support
monetary exchange as they think it
might increase the illegal trade in the
country. Bajpai said: “This will become a
business just like the exploitation of
surrogate mothers in India.” But the
matter has come up for discussions. In
April 2018, two petitions came up for
hearing in the Punjab and Haryana
High Court in which one of the ques-
tions considered was whether organ do-
nation for monetary consideration can
be carried out under a regulated system
to reduce mortality.
Experts say cadaver donations will
ameliorate the situation. Shroff told
India Legal: “Even in kidney transplant,
this option is viable. In the US and UK,
80 percent of donations are cadaver
organs, while in India it is only 20 per-
cent. There is a real shortage of donors
here. There is also lack of awareness
among doctors and the public. Some-
times, consent is an issue, sometimes
maintaining the donor is an issue and
sometimes, identifying the right donor.”
According to Mohan Foundation,
approximately 7,500 kidneys, 2,000
livers and 100 hearts are transplanted
every year in India. And only 15 percent
of kidney transplants are cadaver trans-
plants. Most of the 720 kidney trans-
plants from brain-dead donors in India
in 2014 took place in Tamil Nadu,
Kerala, Maharashtra and Karnataka.
This is a fraction of the 3,000 to 6,000
kidney transplants in India that year.
Mehta said: “All the cadaver organs
were utilised. In Europe, they hardly do
related donor transplant. Hence, the
chances of survival are better there than
in India.”
While hundreds have made it to the
waiting list and thousands more have
to be registered, there are many who
will die before they can disengage
themselves from the complexities of
the system.
“Itisnotthateveryone
jumpsthequeue.
Thereisanational
rosterandvery
stringentlaws.”
—SCadvocate
MahendraKumarBajpai
“IntheUSandUK,80
percentofdonationsare
cadaveric,whileinIndiait
isonly20percent.”
–DrSunilShroff,
managingtrustee,
MohanFoundation
“Onecanmakeawill
whilealive,statingthat
onewishestodonate
organsafterdeath.”
—DrYatinMehta,presi-
dent,IndianSocietyof
CriticalCareMedicine

Commerce/ Cryptocurrencies
32April 30, 2018
MONG the cryptocurren-
cies in use today, Bitcoin
is by far the most popular.
A recent theft of about
438 Bitcoins, worth
approximately `20 crore,
from an Indian cryptocurrency ex-
change, Coinsecure, leads one to ask
how secure cryptocurrency is as a trad-
ing commodity in India and how well-
equipped the system regulating this cur-
rency should be.
Cryptocurrency is a virtual medium
of exchange that employs cryptography
to control the creation and management
of currency units and transactions.
Cryptocurrency units are created and
held electronically. This currency works
on the block chain technology, which
uses a decentralised network. The sys-
tem essentially enables transactions
between users without passing through
a central authority, such as a bank or
payment gateway.
POSITION IN INDIA
Cryptocurrencies are not recognised as
legal tender in India and therefore, not
a recognised medium of exchange. At
present, there are no laws governing the
creation, use and exchange of virtual
currency in India. Further, cryptocur-
rency, by its very nature, cannot be cov-
ered under any existing Indian financial
and economic laws, thus permitting
such currency exchanges to operate
freely. Entities dealing in virtual curren-
cies have not obtained any licence or
authorisation from any regulatory
authority to carry out such activities and
at present, are not statutorily obligated
to cryptocurrency investors in any man-
ner whatsoever, other than of course,
the contract with them.
Owing to “potential financial, opera-
tional, legal, customer protection and
security related risks” that users, holders
and traders of virtual currencies expose
themselves to, the Reserve Bank of India
has time and again issued cautionary
notices to the public. Through caution-
ary notices dated 24.12.2013, 01.02.2017
and 05.12.2017, the RBI has explained
the various risks underlying these trans-
actions, clarified that these currencies
are not authorised by any central bank
or monetary authority, that no licence
has been issued to any entity to deal in
any virtual currency and that any user,
holder, investor, trader, etc. dealing
with virtual currencies does so at his
own risk.
On April 6, 2018, the RBI issued a
notice prohibiting banks and financial
institutions with immediate effect from
dealing in or providing services facilitat-
ing any person or entity in dealing with
virtual currencies, including maintain-
ing accounts, registering, trading, set-
tling, clearing, giving loans against vir-
tual tokens, accepting collateral, open-
ing accounts for cryptocurrency
exchanges and transfer/receipt of money
in accounts relating to purchase/sale of
virtual currencies. Those RBI-regulated
entities already providing such services
have been given three months to termi-
Fraught
with Risk
TherecenttheftofBitcoins
worth`20crorehasrevealed
howunregulatedthismarketis
andwhyinvestorsshouldbe
cautiousininvestinginit
tilllawsareputinplace
By Diljeet Titus
and Ria Khanna
Throughvariouscautionarynotices,the
RBIhasexplainedtherisksunderlying
cryptocurrencytransactionsandclarified
thatthesearenotauthorisedbyany
centralbankormonetaryauthority.
A

nate all such relationships and business
arrangements.
In April 2017, the ministry of finance
constituted an inter-disciplinary com-
mittee chaired by the special secretary
(economic affairs) and comprising rep-
resentatives from the departments of
economic affairs, financial services, rev-
enue, ministries of home, electronics
and information technology, RBI, NITI
Aayog and SBI to ascertain the present
status of virtual currencies, examine
existing global regulatory and legal
structures governing them, suggest
measures for dealing with them, includ-
ing issues concerning consumer protec-
tion, money laundering, etc. Even
though the contents of its report have
not been made public, it is known that
the committee had recommended that
cryptocurrency exchanges close opera-
tions in India.
Following this report, another com-
mittee was constituted by the govern-
ment in December 2017 comprising
RBI, SEBI and income tax department
officials, amongst others, to study the
impact of virtual currencies and to make
recommendations to regulate them.
On December 29, 2017, the finance
ministry also issued a cautionary notice
on the lines of the RBI notices outlining
several security and legal risks attached
to cryptocurrencies, to the extent of
likening such unregulated trade to
Ponzi schemes.
In August 2017, SEBI constituted a
Committee on Financial and Regulatory
Technologies (CFRT) to ensure that
Bitcoins, its derivatives, or any other vir-
tual currency are not used as a medium
for funding illegal activities and also
that no entity should be able to divert
black money through the virtual curren-
cy market. However, the issue is still
under consideration of CFRT and SEBI.
SUPREME COURT NOTICES
The Supreme Court has also issued
notices to the ministries of finance, law
and justice, IT, SEBI and RBI on a PIL
filed by an advocate seeking regulations
to ensure that virtual currencies are reg-
ulated and made accountable to the
public exchequer.
While there is no consensus whether
to accord legal status to this form of
currency given the huge risks, including
money laundering and terrorist financ-
ing, there is consensus among the regu-
latory bodies to subject it to laws gov-
erning black money, fraud and money-
laundering to safeguard the interests of
investors. The laws governing virtual
currencies need to be adequately
equipped to address the technological,
security and privacy concerns that come
along with it. The authorities will also
need to determine the accounting and
tax treatment of virtual currencies.
According to regulatory authorities, it is
highly likely that there will be certain
regulations for virtual currencies by
2018-end.
The recent Bitcoin theft, also termed
the biggest cryptocurrency theft in
India to date, has affected lakhs of
investors. The exchange, with over two
lakh users, discovered that all its
Bitcoins that were stored offline had
disappeared. The password keys to the
private funds maintained by the
exchange were exposed online, leading
to the hacking and siphoning of about
438 Bitcoins to an unknown destina-
tion. The data logs of the affected e-
wallets had been wiped clean, making
the Bitcoins transfer untraceable. The
exchange website has remained shut
since the incident.
In the context of this incident, it is
apparent that virtual currencies, even
though extremely convenient and
potentially beneficial, are not secure
and fraught with several risks. Virtual
currencies are not recognised in India
and thus there is no recourse for
investors to claim any losses arising out
of any theft, fraud or dispute.
Since cryptocurrency is unregulated,
no regulatory authority determines and
controls its supply, thus making cryp-
tocurrency prices volatile and fluid. In
addition, the inherent lack of identifica-
tion makes the system and investors
extremely susceptible to fraud, effec-
tively facilitating siphoning off and
diversion of funds.
Though, in this particular incident,
Coinsecure has decided to refund the
money to its affected investors, not
every cryptocurrency exchange would
be willing or obligated to do so until we
have proper laws in place.
Therefore, the risks of using cryp-
tocurrency are at large for all to see and
it only makes sense not to invest until
there are significant statutory protec-
tions regulating them so that investors
are protected from such future risks.
—The writers are advocates
in Titus & Co
Virtualcurrenciesarenotsofar
recognisedinIndiaandthusthere
isnorecourseforinvestorsto
claimanylossesarisingoutof
anytheft,fraudordispute.
Anthony Lawrence

States/ Punjab/ Sidhu Case
34April 30, 2018
Will He Survive
This Bouncer?
ORMER cricketer and
Punjab minister for local gov-
ernment and tourism Navjot
Singh Sidhu is on a weak
wicket. The Supreme Court
has taken up the appeal in an
attempt to murder case involving him at
a time when he is proving to be the
biggest irritant of Chief Minister Capt
Amarinder Singh.
No wonder Capt Singh is having a
breather. The hearings have, at least
temporarily, subdued the highly aggres-
sive and vocal leader who had switched
his loyalties from the BJP to the
Congress on the eve of the assembly
elections last year.
Though the chief minister has
scotched speculations that Sidhu would
resign or be asked to resign as a minis-
ter, he would have no choice if the apex
court upholds his conviction. The Court
has reserved its judgment after hearing
both sides. A conviction would certainly
lead to Sidhu’s disqualification as an
MLA and consequently, the end of his
political career.
DEADLY TIFF
The case pertains to a road rage incident
in 1988 in Patiala when a young Sidhu
and his friends beat up an elderly per-
son, Gurnam Singh, over a tiff. The vic-
ThoughtheSupremeCourthasreserveditsjudgmentinacasethatis30yearsold,
aconvictioncouldleadtotheminister’sdisqualification
By Vipin Pubby in Chandigarh
CAUGHT IN A FIX
Former cricketer and Punjab minister for local
government and tourism Navjot Singh Sidhu
F

tim later succumbed to his injuries and
a case was registered against Sidhu and
his associates under Section 302 for
murder. The trial court at Patiala acquit-
ted him of the charges in 1999.
The State of Punjab appealed against
the verdict in the Punjab and Haryana
High Court. This Court reversed the
order and convicted him in December
2006 under Section 304, IPC, for culpa-
ble homicide not amounting to murder
and sentenced him to rigorous impris-
onment for three years.
Sidhu then moved the Supreme
Court, which stayed the conviction and
sentence and has now resumed hear-
ings. It was during the process of hear-
ing that the State of Punjab supported
the judgment of the High Court and
urged the Supreme Court to uphold the
three-year jail sentence ordered by the
High Court.
This was the same stand taken by the
state government in the High Court in
2006 when Capt Singh was the chief
minister. Sidhu was a BJP MP at that
time. Government officials have been
telling the media that the government
could not have taken a U-turn on its
earlier stand. Such a scenario could have
led to much criticism and even adverse
remarks from the Court itself. Besides,
the case does not fall within the ambit of
Section 321, CrPC, wherein the state
government could decide to withdraw
from prosecution and inform the Court.
The present case has gone beyond
that stage.
The apex court taking up this case
again and the stand taken by the state
government have apparently come as a
shock to Sidhu. Those close to him say
his grouse is that he was neither infor-
med nor consulted before the hearing in
the apex court. They say that Ama-
rinder’s government had deliberately
kept him in the dark.
THORN IN CM’S FLESH
Sidhu has emerged as a strident and
vocal minister and has been also embar-
rassing the chief minister on certain
issues. For instance, he had been repeat-
edly demanding action against former
minister Bikram Singh Majithia for his
alleged involvement with the drug
mafia. He led about 40 MLAs who
signed a petition demanding action even
though the chief minister has been
TheStateofPunjabappealedintheHigh
Courtagainstthetrialcourtverdictwhich
hadacquittedSidhuofmurderchargesin
1999.TheCourtreversedtheorderand
convictedhiminDecember2006.
A DEEP DIVIDE
(Clockwise from
above) Chief
Minister Capt
Amarinder Singh,
former ministers
Bikram Singh
Majithia and Partap
Singh Bajwa
Photos: UNI

India Legal 30 April 2018

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India Legal 30 April 2018