India Legal 30 September 2016

NDIA EGALL
September 30, 2016 `100
www.indialegalonline.com
I Whose
Baby
IsItAnyway?Adraftlawtobancommercial
surrogacyisfraughtwithcomplicationsand
maydriveitunderground
ByRameshMenon 10
aaaaannnnnddddd
ExtractsfromPinkiVirani’sbook,Politics of the Womb
22
HonoringaLegend:IndiaLegalResearchFoundation
FelicitatesProfMadhavaMenononTeachers’Day
Nayantara Roy
Travails
of Triple
Talaq
40
Karan Kaushik
Death on the Beat
50
Water War:
Face-off
over
Cauvery 72
Shobha John
Clipping
Wings of
Pilots 66
Exclusive
18

RETURNING
EMPTY-HANDED
INDERJIT BADHWAR
during the proceedings, Punia chose to intervene, telling
the court that Bhushan was trying to pre-empt his com-
plaint, suggesting that his petition, though presented as a
PIL, was in reality an anticipatory defensive action to
benefit his own interests rather than those of the public
at large.
Punia made several arguments questioning the legiti-
macy of Bhushan to file the writ. He said that Bhushan
being a member of the governing council of Common
Cause could not appear and argue on behalf of the society
since this violated Bar Council of India rules. In addition,
the proper remedy for a person against whom an FIR
alleging sedition is registered is to seek quashing of that
FIR before the High Court under Section 482 of the Code
of Criminal Procedure (CrPC).
Section 124A of IPC is a cognizable, bailable and non-
compoundable offence. Details available with the Nation-
al Crime Records Bureau (NCRB) show that 47 such cases
have been reported all over India.
Bhushan argued that the law of sedition was made by
the British and was used against freedom fighters, and
that the wording of Section 124A is such that it is often
misused and FIRs are registered rampantly.
The Common Cause petition sought the following relief
from the Supreme Court:
a.“Issue an appropriate writ making it mandatory for the
concerned authority to produce a reasoned order from the
Director General of Police (DGP) or the
Commissioner of Police, as the case may be,
certifying that the 'seditious act' either lead to
the incitement of violence or had the tendency
or the intention to create public disorder,
before any FIR is filed or any arrest is made on
the charges of sedition against any individual.
“b. Issue an appropriate writ directing the Ld.
Magistrate to state in the order taking cog-
nizance certifying that the “seditious act” either
lead to the incitement of violence or had the
tendency or the intention to create public dis-
LETTER FROM THE EDITOR
HAT often makes startling headlines in the
daily press does not necessarily reflect the
nuance of the matter being reported, espe-
cially when it involves the subtleties of the
law and the constitution. Media stories on a
Supreme Court judgment on a writ filed by Common
Cause make it appear as if Prashant Bhushan, the counsel
for the petitioners, had scored another earth-shattering,
landmark victory for freedom of speech in his self-styled
crusade for civil liberties.
Actually, the Honorable Judges—Dipak Misra and
Uday Umesh Lalit—declined to deal with four specific
reliefs sought by the petitioner—and chose to reiterate the
larger principles of law laid down by a Constitution Bench
of the Supreme Court in 1962 regarding prosecution
under Section 124A (sedition) of the Indian Penal Code.
If there was any victory to be claimed as a result of this
legislation, it was not a win for Bhushan or the organiza-
tion he was representing, but rather, for precepts already
laid down by the apex court.
In summary, the petition sought that police officers
receiving a complaint under the sedition section shall not
register an FIR before obtaining the written consent of
the Director General or Commissioner of Police.
Ironically, a complaint under this section filed by Ma-
jor SK Punia against Bhushan for his advocacy of a
plebiscite in the state of Jammu and Kashmir is pending.
In an interesting development which came as a surprise
W
4 September 30, 2016
Prashant Bhushan
didn’t challenge the
constitutionality of
Section 124A.
Rather he tried to
reinvent a wheel set
in motion by the SC
itself in 1962.

5INDIA LEGAL September 30, 2016
rights and the interest of public order. It is also well set-
tled that in interpreting an enactment the Court should
have regard not merely to the literal meaning of the words
used, but also take into consideration the antecedent his-
tory of the legislation, its purpose and the mischief it
seeks to suppress……….
Hence, these provisions would not exceed the bounds
of reasonable restrictions on the right of freedom of
speech and expression. It is clear, therefore, that cl. (2) of
Art. 19 clearly save the section from the vice of unconsti-
tutionality.”
The Kedar Nath judgment makes for good law. Jus-
tices Misra and Lalit rightly, in the exercise of judicious
integrity refused to interfere in any manner except by
reiterating that the authorities while dealing with cases
under Section 124A of IPC would do so guided by the
principles laid down in Kedar Nath’s case. After hearing
the arguments from both sides, the judges observed:
The Supreme Court cannot make amendments in CrPC
as sought by the petitioner.
The police officer is competent to know the law laid
down by the Supreme Court.
There was the remedy of quashing the FIR under
Section 482 CrPC and hence, interference by the Court
was not warranted.
Finally, the Court held that there was no need for
interference by the Court and stated that the law laid
down by the constitution bench in Kedar Nath Singh vs
UOI shall be followed. The Court denied Bhushan’s
request that the order shall be communicated to the chief
secretaries of the states.
The Court concluded: “We are of the considered opin-
ion that the authorities while dealing with the offenses
under Section 124A of the IPC shall be guided by the
principles laid down by the Constitution Bench in Kedar
Nath Singh vs State of Bihar (1962). Except saying so, we
do not intend to deal with any other issues as we are of the
considered opinion that it is not necessary to do so.”
order in cases where a private complaint alleging sedition
is made before the Ld. Magistrate.
“c. Issue an appropriate writ directing for a review of
pending cases of sedition in various courts to produce an
order from the DG or Commissioner of Police, as the case
may be, certifying that the “seditious act” either lead to
the incitement of violence or had the tendency or the
intention to create public disorder in cases.
“d. Issue an appropriate writ directing that investigations
and prosecutions must be dropped in cases where such a
reasoned order as prayed for in Prayers (a), (b) and (c) is
not provided and the act in question involved peaceful
expression or assembly.”
It is mystifying why Bhushan, if he did not believe in
the fairness or the validity of the Section itself, chose not
to challenge its very constitutionality rather than attemp-
ting to reinvent a wheel already set in motion by the
Supreme Court itself in 1962 in the Kedar Nath Singh vs
State Of Bihar. It unambiguously states:
“It is well settled that if certain provisions of law con-
strued in one way would make them consistent with the
Constitution, and another interpretation would render
them unconstitutional, the Court would lean in favour of
the former construction. The provisions of the sections
read as a whole, along with the explanations, make it rea-
sonably clear that the sections aim at rendering penal
only such activities as would be intended, or have a ten-
dency, to create disorder or disturbance of public peace by
resort to violence. As already pointed out, the explana-
tions appended to the main body of the section make it
clear that criticism of public measures or comment on
Government action, however strongly worded, would be
within reasonable limits and would be consistent with the
fundamental right of freedom of speech and expression. It
is only when the words, written or spoken, etc. which have
the pernicious tendency or intention of creating public
disorder or disturbance of law and order that the law
steps in to prevent such activities in the interest of public
order. So construed, the section, in our opinion, strikes
the correct balance between individual fundamental
Justices Dipak Misra
(far left) and Uday
Umesh Lalit
reiterated the larger
principles of law laid
down by the SC on
prosecution under
Section 124A of IPC.
editor@indialegalonline.com

SEPTEMBER30,2016
Womb Worries
The government’s move to ban commercial surrogacy is fraught with
complications that will invariably drive it underground, endangering the health
and interests of the surrogate mother. RAMESH MENON
10
LEAD
“Continuing Legal Education Must”
At a ceremony to honor Madhava Menon, the “Father of Modern Legal Education
in India”, the need for more law schools in every state and use of technology to
bring down pendency was discussed. INDIA LEGAL BUREAU
22
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Editor
Inderjit Badhwar
Managing Editor
Ramesh Menon
Deputy Managing Editor
Shobha John
Executive Editor
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Bureau Chiefs
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Reporters
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Associate Editors
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Photographers
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ILRF FELICITATION
Baby Blues!
PINKI VIRANI’s book, Politics of the Womb, takes a look at the world of
surrogacy and why caution needs to be exercised
18
Outside Its Purview
A recent petition before the apex court seeking governor’s rule in J&K was not
entertained. The bench observed that the crisis should be resolved politically.
KALYANI SHANKAR
26
SUPREME COURT

REGULARS
Quote-Unquote ........................................................... 8
Ringside ...................................................................... 9
National Briefs..................................................... 17, 31
International................................................................37
Supreme Court.......................................................... 38
Courts........................................................................ 47
Consumer Watch ...................................................... 55
Campus Update........................................................ 71
Figure it out ................................................................76
Wordly-Wise............................................................... 77
People ........................................................................82
A Supreme Court order asking Karnataka to release 12K cusecs of
water a day from the Cauvery to Tamil Nadu set off a spiral of violence
in Bengaluru and led to losses worth crores. IL BUREAU
Water Wars 72
FollowusonFacebook.com/indialegalmedia
andTwitter.com/indialegalmedia
40The All India Muslim Personal Law Board should take a cue from
reforms in other Muslim countries where the triple talaq is banned.
NAYANTARA ROY
Banned Elsewhere
78The Food Safety and Standards Authority of India and the Advertising
Standard Council of India have resolved to fight misleading ads
together. But what about wrong reports on nutrition? USHA RANI DAS
Lens on Media
Cover Design: ANTHONY LAWRENCE
COURTS
FOCUS
HEALTH
All over the world, footnotes are used to make judgments more
readable and crisp. In India, it is slowly finding its feet.
DEVADATT KAMAT
56Entry of Footnotes
LEGAL EYE
The Singur verdict could well hit West Bengal’s economy and be cited
in future agitations as industry and agriculture fight for the fast-deplet-
ing resource—land. SUJIT BHAR
32The Fight for Land
Death on the Beat
Journalists who report
from conflict zones and
cover politics and
corruption often pay
with their lives, as
underpinned in a recent
report by an internation-
al media watchdog.
KARAN KAUSHIK
SPOTLIGHT
66The DGCA is debating whether to increase the notice period of pilots to
one year based on a Civil Aviation Requirement which mentions Aircraft
Rules of 1937. But is this CAR legally tenable? SHOBHA JOHN
Wings Clipped!
AVIATION
62The former CM’s deals have divested thousands of poor farmers of
their land, and these have now come to haunt him. VIPIN PUBBY
Hooda’s Bitter Harvest
A National Green Tribunal ruling has forbidden Numaligarh Refinery in
Assam from encroaching into reserve forests in an elephant corridor.
AJITH PILLAI
Relief for Tuskers
STATES
58
50
44Even as various conspiracy theories swirled regarding the Swathi
murder case in Chennai, a judge upholds the rights of the media.
R RAMASUBRAMANIAN
Judge for Media Freedom
49A poor, differently-abled girl who cracks NEET finds a savior in the
court so that she can fulfill her dream of becoming a doctor .
PRABHAT SINGH
Succor to the Needy

“The discourse has reached such a
nadir that even what is cooked in
somebody’s kitchen has become a
matter of public discourse. There
could not be a greater dumbing
down of Indian public spaces and
this is the singular contribution of the
Modi government.”
—Congress spokesperson Manish Tiwari,
reacting to BJP Lok Sabha MP Udit Raj’s tweet
that eating beef could help athletes win medals
at world events, in The Times of India
“People do not know that
he was in jail for 15-and-a-
half years. These leaders
took blows to make India
independent.”
—BJP MP Varun Gandhi,
referring to Jawaharlal Nehru at a
youth enclave in Lucknow
QUOTE-UNQUOTE
“Nobody wants violence except for those who
don’t have to face impact of this
violence as their own children are studying
outside the Valley. They ask children to
fight bullets, pellets and teargas, but
themselves fear a policeman.”
—Jammu & Kashmir CM Mehbooba Mufti,
accusing separatists in Kashmir of instigating
children to fan unrest in the valley, in the
Huffington Post India
“I am very hurt...When he (Arvind Kejriwal)
was with me, he wrote a book on gram
swaraj...Will we call this gram swaraj? That’s
why I am very sad. The hope with which I was
looking at him (Kejriwal) is over.”
—Anna Hazare, while expressing unhappiness over
AAP ministers being involved in corruption and
scandals, to NDTV
“We may have some
difficulty in calling her
‘Saint’ Teresa. Her holiness
is so near to us, so tender
and so fruitful that we
continue to spontaneously
call her Mother.”
—Pope Francis at the canonization
ceremony of Mother Teresa
“As a puzzled individual,
may I ask why the sex video
of two consenting adults
should grab headlines of the
day and why should it be
debated on TV channels?”
—AAP’s national spokesperson
Ashutosh, hitting out at the
media for sensationalizing
the alleged sex video of for-
mer AAP minister
Sandeep Kumar, in
a blog on NDTV
“It is not Kashmiriyat and it can’t be called
insaniyat (humanity) as well. And if
someone goes for talks and they didn’t
talk, they don’t believe in jamhooriyat
(democracy) as well.”
—Home minister Rajnath Singh, on separatist leaders
from Kashmir refusing to talk to a few members of the
all-party delegation, in The Indian Express

“It is more important that innocence be protected than it
is that guilt be punished, for guilt and crimes are so
frequent in this world that they cannot all be punished.”
John Adams, second president of the US
(1797–1801)
VERDICT

LEAD/ Surrogacy Act
A bill to ban commercial surrogacy is fraught
with complications that will invariably drive it
underground, endangering the health and
interests of the surrogate mother
By Ramesh Menon
WombWorries
Anthony Lawrence

C
OUPLES hopefully look-
ing at surrogacy to help
them have a child were
devastated with the draft
surrogacy bill recently
passed by the Union cabi-
net as it violates their fun-
damental right of choosing modes of parent-
hood. As infertility becomes an increasing
problem, vexed couples grappling with it are
at a loss. The bill has banned commercial
surrogacy and only permits it if done with a
relative. In a country like India where tradi-
tional and conservative mores dominate, we
all know that it is not going to be easy. Some
may never hear the pitter-patter of little feet,
hear their laughter or their clever pranks.
The procedure involved in surrogacy is
In-vitro Fertilization (IVF) where an infertile
couple’s egg and sperm are fertilized in a
petri dish to create an embryo. This is then
implanted in the womb of a surrogate
mother. She may charge a fee to do this.
However, altruistic surrogates don’t charge.
If the bill gets passed to become law, it will
invariably give birth to a flourishing black-
market in surrogacy.
Surrogacy flourished in India for more
than 10 years as it had specialists with rich
experience, medical facilities which were
excellent, costs which were reasonable com-
pared to other countries and women ready to
become surrogates. It has now swelled to
an industry worth over two billion dollars
with more than 2,000 assisted reproductive
technology clinics.
Once the baby is born, the surrogate
mother has no rights over it. She has to be
mentally and emotionally prepared for this
through professional counseling. They also
have to be readied to ignore barbs from
friends, neighbors and relatives who may
suggest that it is immoral to do so. As it is
women are under tremendous pressure to
bear children. Motherhood has come to
define life for many women due to societal
and family norms.
Trupti Rajput found that she could not
get a job even after completing BCom and
LLB. She struggled to make ends meet with
her husband’s meager earnings from work-
ing in a small shop. She had dreams to
educate her only daughter in an English
medium school. When a Jewish couple from
New York contacted her asking if she would
agree to be a surrogate mother as they
could not have a child, she agreed. They
offered her Rs 2,50,000 as compensation.
She saw this as an opportunity to build a
small house in Karamsad village in Anand
district of Gujarat.
Today, she is happy that she took this
decision not because the house became a
reality but because she brought so much joy
to the couple. She told India Legal: “We
have been referred to as baby producing
machines. Others say that we have rented out
our womb! Is this how those who became
“We have examples
of celebrities who
opted for surrogacy
despite having
children. The
procedure that
started as a
necessity became
a hobby.”
— Sushma Swaraj,
minister of external affairs
“We have been
referred to as baby
producing machines.
Others say that we
have rented out our
womb! Is this how
those who became
parents with our help
look at us?”
—Trupti Rajput,
a surrogate mother, Anand

parents with our help look at us? I wish the
government had talked to surrogate mothers
and infertile couples before passing such a
bill. They would never have then created
all these clauses. Money is important but
more than that is the gift of motherhood
that I offered to a grateful couple who had
no children.”
The New York couple regularly sends
Trupti photos of the child. She said: “I have
seen her grow all these years. She has
been told that she has two mothers, one in
India and one in New York. I have also told
my daughter that she has a sister in New
York. We are all so happy. I wish the gover-
nment also saw the reality of many such
happy stories.”
The new Surrogacy (Regulation) Bill,
2016, bars overseas Indians, foreigners,
unmarried couples, single parents, live-in
partners and gay couples from hiring services
of surrogate mothers. It has banned
commercial surrogacy, restricting it to only
legally wedded infertile Indian couples. But
even they have to be married for a mini-
mum of five years and only a married blood
relative who has borne a child can be a surro-
gate mother. And she can do it only once in
a lifetime.
External Affairs Minister Sushma Swaraj
who headed the Group of Ministers formed
to look into the issue of surrogacy said that
surrogacy was against the Indian ethos! She
said: “We have many examples of celebrities
who had children and yet went in for a child
through surrogacy. The procedure that start-
ed as a necessity became a hobby. This is not
a thing for pleasure. It has become a fashion
these days.”
Naturally, it whipped up a storm of pro-
test from activists, doctors and others who
NEW HOPE
Numerous hospitals in India
were catering to the increasing
demands of using surrogacy to
have a child. For infertile
couples, it was a new hope
LEAD/ Surrogacy Act
blossomivfindia

see this as the only way to become parents.
Filmmaker Farah Khan who married at
40 and had triplets via IVF said that while
surrogacy needed to be regulated and surro-
gates protected and cared for, a law like this
will not work as it will force surrogacy to go
underground. She wondered why the new act
stipulated that only those couples who had
been married for at least five years and did
not have children could opt for surrogacy. “I
do not think any woman is doing it for fash-
ionable reasons,” she said.
Health Minister JP Nadda says that the
government had to urgently introduce the
law as there were complaints of misuse and
there was a PIL in the Supreme Court which
asked for urgent steps to be taken to control
unethical practices in surrogacy. The
Surrogacy (Regulation) Bill, 2016 will be
debated before it is ratified by the Lok Sabha
and Rajya Sabha. It is undoubtedly going to
be a stormy one as it violates fundamental
rights that the constitution guarantees.
It has thrown up numerous questions:
Can a law decide the modes of parenthood
that one chooses?
How can a law stop other nationalities
from taking advantage of surrogacy?
How can surrogacy be restricted to Indian
couples who have been married for a mini-
mum of five years?
How can surrogacy be disallowed just be-
cause one has a different sexual orientation?
Why should a childless couple wait for five
years to be able to get a child through a sur-
rogate mother and why should she have to be
a close relative of the couple, be married and
also have a child of her own?
Why should a person of Indian origin who
holds an Overseas Citizen of India card be
barred from opting for surrogacy?
Why are Indian couples barred from sur-
rogacy if they have had children or had
adopted them?
Can “altruistic surrogacy” work in a coun-
try like India where poverty forces women to
become surrogate mothers as they have no
other social support system which the gov-
ernment can provide?
These are questions that many surrogate
mothers at Anand, surrogacy’s Ground Zero,
are asking. The small town that became
famous as it was the headquarters of the
BETTER REGULATION
What was crucially
required was a strict
regulatory mechanism
that would ensure
protection of surrogate
mothers and to sniff
out rackets
UNI

National Diary Development Board that
whipped up India’s white revolution is now
seen as the surrogacy capital of India.
Numerous women there have been surrogate
mothers and some have done it more than
once because of financial pressures.
Surrogate mothers get compensated to the
tune of about Rs 4-5 lakh. Foreign couples
sometimes pay more.
Dr Nayana Patel, medical director,
Akansha Infertility and IVF Clinic at Anand,
has helped over 1,000 couples have children
through IVF and surrogacy. She told India
Legal: “The new act has been formulated
based on a myth that surrogates are exploit-
ed. As only relatives can now become surro-
gates, there will be tremendous emotion-
al and social pressure on them to be
selfless to help another relative and not
even ask for compensation. Is that not
exploitation? Commercial surrogacy
must be allowed, and money given
to the surrogates should be seen as
compensation and not as payment.
Surrogacy empowers surrogates as it
helps them use the compensation to help
their families live better. We have many
examples of that. Many couples will now
have to accept infertility as a reality without a
solution, get a divorce or deal with a second
wife that her husband may bring, thereby
disturbing the social structure.”
The bill has attracted criticism from sur-
rogate mothers who are mostly from poor
families and look at this pregnancy as a
means to escape poverty or use the money
they thus earned to plan a better future for
their children.
While parents who have not been able to
conceive look at surrogacy as a way out, many
activists feel that commercialism of surroga-
cy should be stopped. There have been cases
where foreigners from countries where sur-
rogacy is not permitted could not take back
their babies born in India to a surrogate
mother, leading to unwanted complications.
There have also been instances of unscrupu-
lous agents duping surrogates and not paying
the money promised.
There is no doubt that surrogacy in India
needs to be strictly regulated. But the way
out is not to have unrealistic curbs that
encourage touts as this can be dangerous and
hazardous for the mother. A legal framework
is necessary, but it needs to be carefully done
Nadda says that the
Surrogacy Bill had to
be urgently
introduced as the
Supreme Court had
called for steps to
control unethical
practices
—Jagat Prakash Nadda,
Union minister of health
and family welfare
“As only relatives can now
become surrogates there will
be tremendous pressure on
them to be selfless and not
even ask for compensation. Is
this not exploitation?”
—Dr Nayana Patel, Akansha
Infertility and IVF Clinic, Anand
LEAD/ Surrogacy Act

after a lot of thought and research. Apparen-
tly, this draft bill has hurriedly been done af-
ter looking at just seven cases of surrogacy in
India. They may have been extreme cases like
a foreign parent who refused to take the child
born with a Downs Syndrome or a foreign
couple who took back just one of the twins
born saying they could not afford to look af-
ter two of them. There are good and bad ex-
amples and it has to be looked at in totality.
Pinki Virani’s recent book, “Politics of
the Womb-The perils of IVF, surrogacy &
modified babies”, details the dangers and
risks around assisted reproduction. She told
India Legal: “Any law that prevents the
exploitation of Indian women, especially its
poorest, is a step in the right direction. India
announcing that it no longer allows commer-
cial surrogacy for anybody without any
exceptions is welcome. India joins several
others in the world, who have banned com-
mercial surrogacy.”
With this bill, it is not going to be easy to
find surrogate mothers as it sets a jail term of
at least 10 years and a fine of up to Rs 10 lakh.
Rajput said it is not easy to find relatives who
will agree to be surrogate mothers as the
family would be the first to oppose it.
In 2005, the Indian Council for Medical
Research formulated National Guidelines for
Accreditation, Supervision and Regulation of
Artificial Reproductive Technology Clinics
after interacting with stakeholders. It clearly
said that there would be no bar to the use of
Artificial Reproductive Technology by single
women. At that time, the Health and Family
Welfare department did not bar unmarried
women from opting for artificial insemina-
tion with semen from a donor. Children born
to a single woman through such a procedure
was considered legitimate.
Ironically, while there are restrictions on
surrogacy, the Ministry of Women and Child
Development is keen on encouraging adop-
tions by foreigners and pushes for fast-track
policies to make it happen. The Juvenile
Justice Act (Care and Protection of Children)
Act, 2015, permits foreign parents to adopt a
child from India. It also allows single parents
to adopt children and many Indian celebri-
ties have taken advantage of it. But it bars
single males from adopting a girl child.
Critics point out that such seeming con-
tradictions are being followed by various
ministries. When Indian law already permits
inter-country adoptions from India, how can
there be another law that denies the freedom
to choose surrogacy as an option to have
a child?
Dr Patel points out: “The cabinet’s deci-
sion does not appear to be in consonance
with constitutional provisions. Article 14 of
the constitution guarantees equality before
the law and equal protection of laws to all
persons. Article 21 guarantees protection of
life and personal liberty of all persons.
Restricting conditional surrogacy to married
Indian couples and disqualifying others on
the basis of nationality, marital status, sexual
orientation or age, does not appear to qualify
the test of equality and has no connection
with the intended objectives of the propos-
ed legislation. It is not for the state to decide
the modes of parenthood. Constitutionally,
the state cannot interfere in the prerogative
of a person to have children, naturally or
through surrogacy.”
Let us face it: Poor women saw surrogacy
as one way to battle their poverty. The
demand for surrogacy will continue. The
main difference now will be that surrogate
mothers who earlier had the law to protect
their interests will no more be able to do so.
They will be forced to operate clandes-
“Any law that prevents
the exploitation of
Indian women,
especially its poorest,
is a step in the right
direction. India
announcing that it no
longer allows
commercial surrogacy
is welcome.”
—Pinki Virani, author,
Politics of the Womb-The
Perils of IVF Surrogacy
and Modified Babies

IL
tinely and therefore, be unable to avail of
legal aid. They will become more vulnerable.
It cannot be denied that some poor, disad-
vantaged women have been exploited by
ruthless agents and even doctors. Many have
not got the remuneration promised. But they
could use their contracts to ensure they got
justice. Now, with the ban, they will have no
contracts and will be even more vulnerable.
While social activists would label surroga-
cy as a crude form of exploitation, the fact
remains that the money the surrogates
earned helped them to better the lives of
their families. It could be better nutrition,
school or college fees, a new house, meeting
wedding expenses or wiping out a debt.
One would have expected that such a
sensitive issue which has numerous parame-
ters would be carefully weighed before a bill
is drafted. What it should definitely have
included is to ensure protection for the
surrogate mother, proper counseling facili-
ties by trained practitioners and a strong reg-
ulatory mechanism that would easily sniff
out any rackets.
“The provision that
the couples should
be married for five
years to go for a
surrogate child is a
bit onerous. It
makes no sense to
wait for so long to
have a child.”
—Rukhmani Bobde,
advocate, New Delhi
LEAD/ Surrogacy Act
Kh Manglembi

Not fit for judgeship
The candidature of 11
lawyers and half-a-dozen
state judiciary employees for
judgeship in the Allahabad
High Court has been reject-
ed by the Supreme Court
collegium, headed by CJI
TS Thakur. Around 44
names were recommen-ded
by the HC collegium in April
for appointment as judges in
the largest high court of the
country. Of these, 30 prac-
tice law and the rest work
for the state judicial service.
Most of these candidates
were rejected by the CJI-
headed colle-gium as there
were concerns of them being
relatives of sitting and for-
mer judges and their rela-
tions with politicians.
Arunachal Pradesh
governor Jyoti Prasad
Rajkhowa was finally
removed by President
Pranab Mukherjee on
September 12.
The former Assam chief
secretary’s removal comes
weeks after the Supreme
Court ruled against his deci-
sion to convene a controver-
sial session of the assembly
last year in which then
Congress chief minister
Nabam Tuki was removed
and speaker Nabam Rebia
impeached.
Rajkhowa
removed
The Delhi HC has rece-ived
an undertaking from
Jawaharlal Nehru University
which states that the University
will not implement its own
order to penalize its students,
Umar Khalid and Anirban
Bhattacharya, for alleged indis-
cipline regarding the con-
tentious February 9 event. The
assurance from the University
has come after it was ordered by
Justice Sanjeev Sachdeva. He
said that the students should be
given sufficient
hearing to
defend them-
selves. The
Court also
directed JNU to
file an affidavit
of the detailed
documents it
used to deter-
mine the stu-
dents’ guilt.
Respite for JNU students
Advocate Farha Faiz has
sought abolition of Sharia
courts stating that these bodies
propagate Islamophobia. Faiz
has been fighting for gender
equality among Muslims and
has been extremely vocal about
scrapping of the triple talaq
rule. The lawyer has pleaded for
the ban after the All India
Muslim Personal Law Board
justified triple talaq in the
Supreme Court saying that men
could control their emotions
much better than women. The
lawyer wants this abolishment
to save Indian Muslims from the
clasp of fundamentalists.
No Galaxy Note 7 in flights
Lawyer pleads for ban on Sharia
courts
There’s bad news for fly-
ers who use Samsung
Galaxy Note 7. Owing to
several instances where the
batteries of the model
exploded and caught fire, it
has been banned from
being carried in check-in
bags. It can only be carried
in hand baggage and flyers
will not be allowed to oper-
ate or charge it in-flight.
Even though the sales of the
smartphone have not yet
begun in India, the authori-
ties have decided to ban its
use in flight after foreign
carriers like Etihad,
Singapore
Airlines,
Qantas and
Virgin
Australia
issued a similar
ban. The ban is
the first of its
kind in India.
NATIONAL BRIEFS
— Compiled by Karan Kaushik

LEAD/Surrogacy/ Book Extract
C
OUPLES ARE GOING
out of their way to have
children when self-dec-
lared infertile—crossing
cities, countries, conti-
nents—so that a doctor
somewhere, anywhere,
can deliver their dream. Fertility clinics
reward them by calling them exceptional
persons to have travelled the distance ‘only
so that they can know the joy of holding a
child in their arms’. What they don’t smirk
about—‘only because of their ability to
pay’—is good business manners in a sector
PINKI VIRANI’S book Politics of the Womb takes a look at the world
of surrogacy and why caution needs to be exercised all the way
Baby Blues
which trades on hope. Does Ivf actually
work in reversing infertility? Or is the fertil-
ity clinic a futility clinic for those patients
who never get heard about, the statistics of
the Ivf failure rate.
Among other things, fertility clinics are
largely secretive and unless forced by a reg-
ulatory body are not likely to provide true,
never mind accurate, information. Statistics
will not have clarity even if there is a regula-
tory body, it will need to be one with a clear
mandate from the patient’s point of view.
What follows below are some minimum
policy points on what any regulatory author-

ity for reproduction must have. These provi-
sions have also been referred to in certain
chapters that follow which provide concrete
examples of why a regulatory authority is
needed….
What must be ensured, so that women
and their bodies are not treated like cattle,
in countries like India [which does not have
one until September 2016] is a human fer-
tilization authority which plays a pivotal and
composite role:
It certifies the following of laid-down and
evolving policies by the government which
has been responsive to overwhelming evi-
dence.
It regulates the licensing of assisted repro-
duction clinics and overviews the licensed
clinics and doctors within.
It puts up a website of these clinics so that
patients can see for themselves their annual
success rates, and on which parameters. For
example, how much of this result is due to
surrogates [even when altruistic]. For
another, how many babies were born
preterm, before the nine-plus months. In
which case how many were emergency cae-
sarean and why, how many elective caesare-
an. A clinic’s success rate may only be graded
on the live births through their process, i.e.
newborns which survive to be taken out of
the hospital.
The authority oversees all aspects of assist-
ed reproductive techniques—including the
all-important dosage of hormones and other
medicines—in self and third-party repro-
duction. For example, forced ovulation for
the purpose of needing eggs for the Ivf
process cannot have hormonal doses which
go beyond producing, say, a baker’s dozen of
thirteen. This approximation is being used
to underscore that it varies from the body of
woman to woman. However there are med-
ical limits on ovarian hyper-stimulation
in which women’s bodies should not be
harvested as they pose very great risk for
her. These limits, which are laid down by
maximum egg numbers must be stipulated
by the authority on numbers and patient
age-level basis.
The woman cannot be put through anoth-
er round of ovarian stimulation if the first
batch has been medically declared as ‘duds’.
Neither women, the intending genetic-
birth-mother nor the altruistic surrogate
birth-mother can be inserted with more
than one embryo at one time. The surrogate
cannot be subjected to more than three
cycles of Ivf.
Fertility clinics
are largely
secretive and
unless forced
by a regulatory
body are not
likely to provide
true, never
mind accurate,
information.
TALL CLAIMS
Fertility clinics are
flourishing in many
cities and small towns,
offering hope to
childless couples
iswaryafertility

NATIONAL
ISSUE
Lalitha
Kumaramangalam
(center)
chairperson,
National
Commission for
Women,
addressing a
press conference
on surrogacy
issues in Delhi
The authority keeps abreast of medical
advancements and new medicines in the
field of reproduction to also monitor those
products, their efficacy and their side effects.
Instructions and guidelines are to be issued
accordingly to the licensed clinics.
The authority ensures that third-party
reproduction is non-commercial, i.e. altruis-
tic and provides for pre-counselling and
post-donation follow-up.
The authority ensures that the third-party
reproduction is not anonymous. So that the
altruistic sperm donor understands he is the
intending child’s genetic-father. So that the
altruistic egg donor understands she is the
intending child’s genetic-mother. And the
altruistic surrogate understands that she is
the intending child’s birth-mother.
During donation, it ensures maximum
health precautions for them. It finalizes the
language of the medical and legal frame-
work of all third-party altruistic reproduc-
tion, be they for surrogacy, egg or sperm
donation. It ensures an appropriate insur-
ance policy for the altruistic egg donor and
surrogate, the premium for which is payable
by the intending parents, in the event of life-
damaging medical negligence or death dur-
ing donation, or immediately after, if related
to the donation.
The authority holds the fertility clinic and
its doctors within responsible for life-dam-
aging medical negligence or death during
donation, or immediately after if related to
the donation. The authority also holds the
same responsible if there is any medical neg-
ligence or death during assisted reproduc-
tion or immediately after related to the pro-
cedures of a direct patient who is the biolog-
ical mother, i.e. an intending mother who is
both, a genetic-mother and a birth-mother.
The authority takes action accordingly, as
per its rules and guidelines which include
the patients or their surviving families filing
appropriate criminal charges. Till such time
as the cases are pending in court, the
authority suspends the licence of the fertility
clinic and takes steps to ensure that the doc-
tor[s] directly allegedly responsible for the
negligence or death are not permitted prac-
tice on other patients.
The authority sets down reasonable
expenses to be paid in cheque [not cash, the
kind that slushes around every country not
controlling commercial surrogacy], to the
donors for their medical expenses, time
away from work if any and commuting costs
for medical needs connected with the dona-
tion. The authority ensures that the altruis-
tic surrogate is not separated from her own
All donors must
be in excellent
emotional,
mental and
physical health.
They must pass
a psychological
assessment
which the clinic
must organize
with a trained
psychologist....
UNI
LEAD/Surrogacy/ Book Extract

life is optimized.
All donors must be in excellent emotional,
mental and physical health. They must pass
a psychological assessment which the clinic
must organize with a trained psychologist
and must be paid for by the intending par-
ents. The donors must have no criminal his-
tory. They must not have tattoos or piercings
in the last nine months and should not be
smokers or drinkers; drug-users must be
weeded out immediately by the clinic.
Surrogate mothers must have a support sys-
tem in place in the form of some family or
friends, and must be based in a stable resi-
dential environment.
The clinic is to be held responsible in
ensuring the informed consent of the direct
patient and the altruistic donors. Informed
consent includes making sure that they
understand that all of the following is
involved: repeated blood work, lots of bodily
ingestion of Ivf medications which will be
oral and also subcutaneous and intramuscu-
lar injections of hormones. The clinic must
explain which of these have side effects and
what it will mean for the woman’s body….
The authority must also lay down that
each clinic’s gynaecologist-obstetrician must
personally explain to the direct patient i.e.
the biological mother [genetic-plus-birth-
mother], and the altruistic surrogate that
there might be an emergency caesarean and
its risks, as also what it entails from the
beginning of the operation to her body’s
healing post the stitches….
The authority will lay down that the clinic
is to ensure that the egg donor receives ade-
quate bed rest and medical attention post
the donation. The clinic will ensure that the
surrogate birth-mother of the child receives
adequate bed rest and medical attention
post each cycle and also post-partum [post-
delivery]. For which all payments will be
made by the parents.
family and friends and her food is not a
forced and dramatic change from her regu-
lar dietary habits. The woman cannot be
prevailed upon to live in a dormitory, hotel
or in the home of the intending parents.
The authority holds accountable the fertil-
ity clinic, and takes action accordingly if it is
found negligent in all of the following. The
altruistic surrogate, the altruistic egg donor
and the altruistic sperm donor must be only
within the age band of twenty-three years
and thirty-five years. If any are married, per-
mission must be secured from the spouse. If
the surrogate is married, she must have had
a biological child of her own, i.e. delivered
through her own body with her own ova,
before she can carry for another. No donor
can have consanguineous [relationship by
blood] connections with either the intend-
ing mother or the father…. For the same rea-
son, that of the intending child’s future, the
combined age of the woman and man avail-
ing of altruistic third-party reproduction
must not be more than a total of eighty-five
years. And they should have been cohabiting
for a minimum of five years including the
time taken to try for all assisted reproduc-
tive therapies and cycles upon themselves.
All altruistic acts of third-party reproduc-
tion may be performed only once by the
same person, so as not to create complica-
tions of disparate step-siblings for the
intending child….
The authority holds the fertility clinic and
the doctor responsible for ensuring the fol-
lowing. The third-party reproduction do-
nors must be citizens of the same country as
the country of citizenship of the intending
child. In the case of the altruistic surrogate,
she must not be planning on leaving the
country till twelve months after the baby is
born. Fertility clinics counselling the two
intending mothers, before the third-party
reproduction process is undertaken, must
advise both on the benefits of breastfeeding
the intending child. Accordingly, there sho-
uld be advice that the birth-mother,
i.e. the altruistic surrogate who carried the
child to term, can for the first six months
exclusively breastfeed the newborn, the
remaining six can be in its weaning away.
In this manner the child’s healthy start to
Neither the intending genetic-birth-mother
nor the altruistic surrogate birth-mother
can be inserted with more than one
embryo at one time.
Published by Penguin
Pages: 365; price: `599
IL

ILRF FELICITATION/ Prof Madhava Menon
At a felicitation ceremony for this “Father of Modern Legal Education in India”,
many issues were discussed, including the need for more law schools in every
state and use of technology to bring down pendency
By India Legal Bureau
“Lawyers Will
Need to Keep
Learning....”
LEADING THE WAY
Legal luminary and
legal educator Prof
NR Madhava Menon
Photos: Anil Shakya

O
N the eve of Teachers
Day, the India Legal
Research Foundation
(ILRF) honored Prof
Madhava Menon, a
distinguished educa-
tor in the field of legal
education. He set the path for a holistic five-
year law course that has revolutionized the
way this subject is taught in India.
He has headed and taught at numerous
universities and has earned the sobriquet of
“Father of Modern Legal Education in
India”. For his sterling contribution, he was
conferred the Padma Shri in 2003.
LEGAL ENTREPRENEURSHIP
Looking back nostalgically at his 57 years
with the Indian Bar, he said that he had seen
many revolutionary changes in the past few
years with the Bar Council of India taking
the initiative in the 1980s of reforming the
legal education system by setting up nation-
al law universities. “A new concept of legal
education focusing on studying law in the
social context was initiated under the five-
year integrated legal education program. We
can find many bright young Indian lawyers
who have passed out of National Law
Universities working with leading law firms
throughout the globe. They are establishing
legal entrepreneurship in foreign lands.
Every state in India should have national
law schools. The legal sector can bring in
billions of dollars as trade grows with new
economic opportunities generating wealth
in a globalized world. What is gratifying is
that many students are now opting for law
and not medicine and engineering,” he said.
Prof Menon said that continuing educa-
tion for lawyers and prosecutors of lower
courts was a must to meet new legal chal-
lenges. “The Bar Council is planning to
make it mandatory for lawyers to go in for
continuing education if they want to retain
their license. Lawyers will need to keep
learning to argue complex cases like those
that involve technicalities of institutions like
SEBI and WTO. We cannot do business the
way we are doing. Ultimately, lawyers will
need to draw from the constitution which
wants to ensure an egalitarian society. The
younger generation is more concerned with
the delivery of legal services and the legal
scenario is bound to change with youngsters
driving it,” he said.
Prof Menon pointed out there was a state
where the judiciary had earned `200 crore
in one year, but only `4.5 crore was used to
improve its infrastructure. “Is the judiciary
supposed to be a revenue-earning institu-
tion?” he asked.
He said that while it is a fact that judges
can identify good judges who are eligible for
appointment, they should not be the only
ones who should decide. The debate on the
revival of the NJAC was still going on and it
is ultimately transparency in appointments
that can ensure that the best judges are
selected, he said.
DOCKET MANAGEMENT
Justice Ravindra Bhat of the Delhi High
Court who was one of the chief guests at
VYING FOR
BUSINESS
Aero India shows have
become prominent in
the world and leading
manufacturers compete
for attention here
Every state in India
should have
national law
schools. The legal
sector can bring in
billions of dollars
as trade grows with
new economic
opportunities.What
is gratifying is that
many students are
now opting for law
instead of medicine
and engineering.”
—Prof Madhava
Menon, “Father of
Modern Legal
Education in India”
FELICITATING THE MENTOR
(L-R) Justice S Rabindra Bhat; Prof NR Madhava
Menon; President, ILRF, Pradeep Rai;
Editor-in-Chief India Legal Inderjit Badhwar

the felicitation ceremony, said that courts
today need to have a perspective plan to
ensure proper time management and docket
management. “Courts and lawyers have to
embrace technology as it helps them to
make better submissions as they can quickly
look at 15 volumes enabling them to func-
tion more effectively. Unless we use technol-
ogy, pendency will be there. There are about
1.9 crore cases that are filed and about 1.75
crore are disposed off annually. But the fact
is that we need more judges and more courts
as crimes are increasing. There are virtual
courtrooms abroad and there is no reason
why we cannot have it here as India is a
technological leader,” he said.
Former judge of the Kerala High Court
Justice R Basant who is now assisting Prof
Menon in formulating a system to ensure
continuing education for lawyers, said: “A
person who approaches the courts needs
just ten minutes but gets it five or more
years later. There is clearly a management
problem here. We have lawyers and courts
that are ill-equipped. The pursuit of excel-
lence is not there. The arguments and judg-
ments show that mediocrity rules the roost.
Law is too serious a business to be left to the
lawyer and judge alone. The public at large
must also get involved as it is their legiti-
mate domain. They must have a voice. We
must revitalize the desi form of jurispru-
dence where village and tribal courts could
easily dispose of cases,” he said.
Justice Basant said that while public
interest litigations in India had given a voice
to the mute suffering of many, it should not
become private interest litigation and
judges should smartly figure that out.
Litigation in India is attached to prestige, so
many go to court and there is a need to weed
out frivolous litigation, he said.
Former acting chief justice of the
Himachal High Court Justice RB Mishra
said that there has to be a willingness to deal
with pendency and for that, we require good
judges and lawyers to work together. We
now have a good educational system to cre-
ate the best legal experts, he said.
USE TECHNOLOGY
Senior lawyer Meenakshi Arora said: “Use of
technology will become imperative soon.
Inconsistency in pronouncements leads to
DISTINGUISHED GUESTS
(Clockwise from left) Justice RB
Mishra, Justice R Basant, Prof and
Registrar, NLU Delhi, GS Bajpai,
Senior Advocate Meenakshi Arora
“We have lawyers and courts that are ill-equipped.
The arguments and judgments show that mediocrity
rules the roost. Law is too serious a business to be
left to the lawyer and judge alone.”
—Justice R Basant, former judge of the Kerala High Court
ILRF FELICITATION/ Prof Madhava Menon

IL
docket explosions. Settlements are not a bad
thing for lawyers but the mindset for that to
happen has to change.
“The use of technology will become im-
perative soon and that might bring down
pendency. Today, the youngsters from law
schools have greater abilities than previous
generations and that is only because of their
education.”
Senior lawyer Vivek Sood pointed out
that patently false complaints were being
filed and we need more responsible laws to
track that. “The legal education system
today should consider that one of the big cri-
sis in the legal delivery system is the serious
dearth of trial lawyers as cross-examination
is a dying art,” he said.
Senior lawyer KK Manan pointed out
that 80 percent of investigating agencies
were corrupt and inefficient and even
women police officers were not above board.
“Lawyers are not fully prepared and keep
taking adjournments. Lawyers today would
rather go to the corporate sector than opt
for litigation. Many in the Bar Council do
not even practice. We must have a scenario
where commoners become judges and not
be restricted to about 1000 families,”
he said.
Prof GS Bajpai, registrar of National Law
University, Delhi, said that students today
are well-equipped to learn and study on
their own because of the internet and so the
role of teachers has to be to inspire and get
them to think independently.
There is a dearth of serious teachers. We
need institutional builders like Prof Menon
who have changed the contours of legal edu-
cation. India has so much of talent and it
can be harnessed with good educational
institutions and teachers that even lawyers
require to continuously keep learning,
he said.
—With inputs from Srishti Sonewal
P
adma Shri Professor (Dr)
Neelakanta Ramakrishna
Madhava Menon has been called
a “living legend of law” by the
International Bar Association. He has
endeavored for nearly five decades to
put Indian legal education at par with
those in the developed countries.
Menon was invited by the Bar
Council of India in 1985 to set up the
country’s first national law school,
National Law School of India University
Bangalore (NLSIU).
This was an important and epoch-
making development as legal educa-
tion was not in much demand in those
days. It was then that the idea of a
new model of legal education took
shape as the five-year integrated
LLB program.
The program is now the law curricu-
lum for mainstream legal education and
has gathered attention from legal edu-
cators everywhere.
The government and various profes-
sional bodies have honored Dr Menon
with several awards. The International
Bar Association honored him with
Living Legend of Law Award, the Rotary
Club with the Vocational Excellence
Award, the Society of Indian Law Firms
with the Best Law Teacher Award , the
ET-NOW Group with National Education
Leadership Award and the Government
of India with the Padma Shri.
He was elected chairman of the
Commonwealth Legal Education
Association in 1997. Dr Menon was
also presented a Plaque of Honour by
the Bar Council of India for his contribu-
tion to the legal profession.
Prof. Menon has penned over a
dozen books on legal education, legal
profession, legal aid, judicial training
and the administration of justice.
Alivinglegend
ENGROSSED LISTENERS
Audiences listened with rapt
attention as the panel
discussed some of the
raging issues faced by
the judiciary

Beyond
theCourts
W
ILL any arm of the
judiciary or for that
matter even the
Supreme Court in-
terfere in a sensi-
tive issue like the
one in Kashmir
that is currently making news for all the
wrong reasons? With the violence spiralling
out of control following the killing of Hizbul
Mujahideen commander, Burhan Wani, the
Jammu and Kashmir National Panthers-
Party (JKNPP) knocked at the doors of the
apex court in July for relief.
The JKNPP, in its petition, prayed that
the Court direct the state governor NN Vora
to take over administration “in the interest
of security, safety and fundamental rights of
the Indian citizens in the Kashmir valley.”
The JKNPP told the Court that the governor
should invoke Section 92 of the J&K cons-
titution which allows the dismissal of the
SUPREME COURT/J&K crisis
A recent petition before the apex court seeking
its direction to impose governor’s rule was not
entertained. The three-judge bench observed
that the Kashmir crisis should be resolved
politically and not by the judiciary
By Kalyani Shankar
state government in the event of a break-
down of the constitutional machinery there.
The Court initially directed the state and
central governments to submit their respec-
tive reports on the law and order situation in
J&K. The center’s report submitted before
the Court on August 5 indicated that the sit-
uation had improved considerably with the
number of violent protests going down from
201 on July 9 to 11 on August 3. “Due to per-
sistent efforts of the security forces/Jammu
and Kashmir Police, the situation has shown
remarkable improvement, with the number
of incidents declining progressively since
the outbreak of violent protests and clashes,”
the center told the Court.
The bench headed by Chief Justice
of India TS Thakur and Justices AM

Khanwilkar and DY Chandrachud decided
that the Court had no reason to intervene.
In fact, it said that Kashmir was a political
issue which needed to be resolved politically.
“This issue (the present turmoil in the val-
ley) has various dimensions and therefore
should be dealt politically and moreover,
everything cannot be managed within the
judicial parameters,” the bench told JKNPP
leader and lawyer Bhim Singh who app-
eared on behalf of his party in court.
ONLY DIALOGUE
In effect, the highest court in the land was
expressing a view that several Kashmir
experts have been voicing over the last two
months that the present crisis can be
resolved only through dialogue with the var-
ious political stakeholders. It is another
matter that the central and state govern-
ments have not been able to douse the fire.
The former expects the latter to control it
while the elected leaders of Kashmir are
throwing back the responsibility to the cen-
ter. Though parliament is united, it cannot
do much. So Bhim Singh and his party were
perhaps expecting the judiciary to act.
The reality is that the Kashmir problem
continues to be unsolved since Partition.
Since then, there have been three major and
one minor wars, besides numerous armed
skirmishes, between the two countries. In
the last 69 years, both countries have
employed bilateral as well as multilateral
approaches to resolve the conflict in vain.
Several solutions had been proposed,
BREAKING POINT
(L-R) Burhan Wani’s death
brought to the fore deep-
seated discontent among
the Kashmiri youth against
the Indian establishment
UNIUNI

including division of the whole state on the
basis of ethnic majority, (advantage Pak-
istan), independence of Kashmir by demili-
tarization of Indian and Pakistani forces
from Kashmir, a “confederation” with a joint
control on Kashmir by both India and
Pakistan and implementing the resolution
of the United Nations by holding a plebiscite
among others.
According to former foreign minister of
Pakistan Khurshid Mahmud Kasuri, India
and Pakistan were about to reach a solution
during Pervez Musharraf’s regime but failed
because of the judicial crisis in Pakistan.
The four-point Musharraf formula inclu-
ded the de-militarization and reduction in
violence, self-governance, a joint control
mechanism for both parts of the state and
rendering the Line of Control as just “a line
on the map”.
RADICALIZATION OF YOUTH
The experts all agree that there is
utmost urgency in addressing the present
crisis in view of the growing radicalization of
the youth. Three generations of Kashmiris
have borne the brunt of armed conflict.
According to official statistics, the ratio of
local versus foreign militants has changed
from 40/60 in 2013 to 60/40 last year.
Noted Kashmir analyst AG Noorani
traces the present unrest to what happened
in 1989. “In 1989, the latent wrath of the
Kashmiris flared up. Pakistan supplied the
gun; India built up the wrath, and that
wrath will not subside now. It cannot be
crushed by bribery or force. Indian national-
ism must come to terms with Kashmiri
nationalism,” he observes in an article in
Frontline (May 27 issue). According to offi-
cial estimates, since 1989, about 44,000
people have been killed in Kashmir (35 per-
cent civilians) while unofficial estimates of
killings are much higher.
Kashmir is indeed a political problem
but the center has been handling it as a
security/law and order problem. At best,
New Delhi feels it has been created by Pak-
istan. Successive prime ministers have bel-
ieved that by announcing a financial pack-
age, the problem would get resolved. They
have talked about reaching out, appointing
interlocutors, holding round table confer-
ences and providing the “healing touch”
whenever trouble erupts in the valley.
The immediate provocation for the pres-
ent crisis began when the security forces
killed 22-year-old Hizbul Mujahedeen
commander Burhan Wani on July 8 in an
encounter. Wani represents the growing
home-grown militancy. The son of a head-
master, he took to the gun reportedly to
avenge the death of his brother. The new
generation of Kashmiris have begun to look
at people like Wani as their icon. Former
Jammu & Kashmir Chief Minister Omar
Abdulla’s tweet, “Mark my words—Burhan’s
ability to recruit into militancy from the gra-
ve will far outstrip anything he could have
done on social media,” reveals the extent of
radicalization.
This indigenous uprising has indeed
changed the situation. The youth have now
demonstrated that they have a stake in the
Kashmir issue. The sad part of the story is
that almost three generations of youth in
Kashmir have only seen armed forces with
lethal weapons, curfews and closures. They
have complete disillusionment with the
political class. Thousands of mourners who
JKNPP leader Bhim Singh (left) wanted J&K
Governor NN Vora (right) to invoke Section 92
of the state’s constitution which allows
dismissal of the state government.

joined Wani’s funeral procession proved it.
This unrest is not only against the present
political dispensation, but a cumulative an-
ger against all those who exploited the
Kashmiris for their power politics.
SEVERAL DIMENSIONS
Wani’s death has brought out the various
dimensions of the Kashmir problem once
again. There is a local angle, there is a nat-
ional angle, there is an international angle
and also there is an India-Pakistan angle. As
for the international angle, even last Sep-
tember, Pakistan Prime Minister Nawaz
Sharif had urged for a plebiscite in Kashmir,
stressing the need for implementation of the
UN Security Council resolution in this
regard. He raised it during his meeting with
US President Obama.
On July 13, India and Pakistan traded
bitter allegations of human rights violations
at the United Nations, resulting in a diplo-
matic spat. The UN Secretary General, Ban
Ki-moon, urged all the parties to exercise
“maximum restraint” and hoped that all
concerns would be addressed through pea-
ceful means. On August 26, Pakistan asked
the world community to play its role in the
peaceful resolution of the Kashmir issue.
The current Kashmir uprising should also
be read in context with the failure of world
powers in Afghanistan which faces a fluid
political and military situation.
At the bilateral level, the ties are on a ver-
itable roller-coaster. The recent “provoca-
tive” statements by Pakistan have brought
the politics of confrontation to the fore. Pak-
istan has issued a demarche over the killings
in Kashmir. Sharif spoke about Kashmir in
his Independence Day address to the nation.
On August 2, Pakistan parliament had una-
nimously passed a resolution: “The National
Assembly of Pakistan strongly condemns
the recent atrocities perpetrated on inno-
cent Kashmiris by Indian security forces.”
As for the national angle, as Chief Justice
Thakur observed recently, the problem is
haunting because of the nature of the multi-
divided society. The people of Jammu want-
ed abrogation of article 370, those living in
Ladakh want their region to become a Uni-
on Territory due to their mistrust about
Kashmir’s hegemony, the people in the
valley are yearning for independence, while
the Hindus of Kashmir, who have been
hounded out of the valley, want to have a
homeland there.
The Mehbooba government is yet to find
its feet. The PDP-BJP coalition is shaky and
riddled with inherent contradictions after
the death of chief minister Mufti Moha-
mmad Sayeed in January. The PDP finds it
difficult to explain its coalition experiment
with the BJP. Mehbooba has fallen between
the two stools as neither her party nor the
center trust her. She finds it a “multi-dimen-
sional problem that needs a bit of all solu-
tions”. The other opposition parties in the
state also have no solution.
Finding a political solution is easier said
than done. As columnist Dilip Padgaonkar,
who was an interlocutor in 2010, notes:
“Any option that entails secessionism is
The bench headed
by (clockwise from
above left) Chief
Justice of India TS
Thakur and Justices
AM Khanwilkar and
DY Chandrachud
took the stand that
J&K was a political
matter.

IL
clearly not on the table. Nor is the abroga-
tion of J&K’s special status. That leaves us
with variants of autonomy.”
Clearly, there are two levels of the con-
flict resolution—short-term and long-term.
The discourse over bringing normalcy to
Kashmir must address the grievances of the
people of Jammu, Kashmir and Ladakh,
including the part of Kashmir under control
of Pakistan.
CBMs AS A PRECLUDE
The immediate priority is to restore nor-
malcy. Confidence-building measures sho-
uld be taken up as a prelude to any peace
talks. There is a huge trust deficit. Talks
should involve all stakeholders, although the
separatists shut their door to the All-Party
Parliamentary delegation that called on
them on September 4.
The moderates in the valley should be
encouraged and the separatists should be
isolated. As people resent heavy military
force, a phased de-militarization and revo-
cation of AFPSA should be started.
De-radicalization of the youth is an
absolute necessity to check militancy.
Programs should be evolved to provide jobs
and improve the economy of the state. Indo-
Pak dialogue should also be resumed as
soon as possible. The Kashmir dispute
remains a core issue on the foreign and
security policy agendas of both Pakistan and
India.
In 1999, Vajpayee and Sharif made some
progress on Kashmir via the Lahore Dec-
laration. In 2004, there was the Vajpayee-
Musharaff Islamabad declaration. Between
2004 and 2008, Dr Singh and Musharraf
had moved closer to resolving the Kashmir
issue. Prime Minister Modi began well by
inviting Nawaz Sharif for his swearing-in
ceremony and last Christmas made a sur-
prise stopover in Lahore to inject a new
momentum. But that gain was frittered
away with the Pathankot incident later. New
Delhi has since been following an ad hoc
Pak policy.
For too long, Kashmir hoped that its
problems would be addressed politically. It
believed in 2008, then in 2010, but now it
has reached a breaking point. There is no
more time to be lost as Mehbooba noted
that the best time to solve Kashmir’s prob-
lem is now—when the BJP has an absolute
majority in the parliament. “If it does not
happen now, it will take a very long time to
get resolved,” she told the media after meet-
ing Modi recently.
In any case, most political parties are
supporting a resolution. The center should
carry forward the peace dialogue and back it
up with action.
EFFORTS IN VAIN?
Prime Minister Atal Bihari
Vajpayee receiving Gen
Pervez Musharraf at the
Rashtrapati Bhawan in
Delhi in 2001. The two
leaders developed a
close understanding by
the time the BJP
government was voted
out in 2004
Last September,
Pakistan Prime
Minister Nawaz
Sharif had urged
for a plebiscite in
Kashmir,
stressing the
need for
implementation
of the UN
Security Council
resolution.
Getty Images

In order to keep a check on their
activities, the center may get strict
towards separatist leaders
in Jammu and Kashmir
and make their foreign
travel difficult. Passports
will not be issued to
select separatists, par-
ticularly to the mem-
bers of the Hurriyat. The cen-
ter might expand the list of sepa-
ratists according to sources. However
the government is unexpected to
reduce security cover for them.
The center may also scruti-
nize their bank
accounts to send a
strong message that
those provoking
youths to create tur-
moil in the valley will
not be spared.
Prosecutors in Brazil and the justice
department of the US are investi-
gating a major defense scandal involv-
ing payments of bribes by Embraer,
Brazilian aircraft manufacturer, to seal
deals with India and Saudi Arabia. This
is another defense scam to hit India
after the VVIP helicopter scam.
Middlemen and unauthorized agents
are banned under the Indian defense
procurement system. Embraer alleged-
ly paid bribes to a defense agent based
in UK for three EMB-145 aircraft in a
$208 million deal. The aircrafts which
are equipped with indigenous radars
would serve the Indian Air Force in
giving early airborne warnings and effi-
cient operation of control systems.
Be a Padma Nominator
Now you can also recom-
mend candidates for nomi-
nations for the prestigious
Padma awards as the govern-
ment has opened the nomina-
tion process for the general pub-
lic. The move will ensure trans-
parency and put a check on lob-
bying. The process to submit
nominations will be online and
the nominators will have to pro-
vide their Aadhar details. This is
the first time that the govern-
ment is encouraging the general
public to be a part of nominat-
ing candidates for the awards.
The government may open legal
services for foreigners soon. The
proposal aims at boosting this service
sector which contributes
to 60 percent of its econ-
omy. The Bar Council of
India is reviewing their
rules for this move. They
are contemplating begin-
ning with advisory and
arbitration which are the
two easiest areas. India has been
pushed by the US and the UK in the
past to start legal services for foreign
firms. Education serv-
ices may also be
opened up for foreign
investors and the min-
istry of commerce has
sent a framework to
the HRD ministry for
the same.
No passports for J&K separatists
Another defense scandal?
NATIONAL BRIEFS
— Compiled by Karan Kaushik
Legal services for foreigners soon
The CBI has
named ENT
specialist Virendra
Tawde as the prime
conspirator in ratio-
nalist Narendra
Dabholkar’s murder
case. Tawde belongs
to the right-wing
Hindu Janajagruti
Samiti and also has
links with the Sanatan
Sanstha. He is now in
judicial custody after
being arrested in
June. The bureau has
also identified abscon-
ders Vinay Pawar and
Sarang Akolkar as
Dabholkar’s murder-
ers in a charge-sheet
filed before a court in
Pune. Akolkar is an
accused in the
Madgaon blast case.
Dabholkar who
founded the
Maharashtra
Andhashraddha
Nirmoolan Samiti,
was killed in August
2013 when he had
gone for a morning
walk near Omkaresh-
war Temple in Pune.
Dabholkar’s murderers
identified

SUPREME COURT/ Singur Judgment
O
N August 31, the Supreme
Court delivered a landmark
verdict, declaring as “illegal
and void” the acquisition of
1,053 acres by the earlier
Left Front government in
West Bengal for a Tata
Motors Nano car plant at Singur. The two-
judge bench ordered that all the land must
be given back to the farmers within 12 weeks.
The Fight
for Land
This landmark verdict will hit West Bengal’s
economy and be cited in future agitations
as industry and agriculture battle for this
fast-depleting, precious resource
By Sujit Bhar in Kolkata
“...land is the only thing in the
world worth working for, worth
fighting for, worth dying for,
because it's the only thing that
lasts.”
—Gerald O'Hara
in Gone With the Wind
THE DAY AFTER JUDGMENT
Minister Firhad Hakim leads a
rally in Kolkata celebrating the
Supreme Court verdict
UNI

The two-page order, drawn from separate
judgments by the two Justices—V Gopala
Gowda and Arun Mishra—also said that all
compensation so far handed out to the farm-
ers who willingly gave their land shall not be
recovered because they were “deprived of
occupation and enjoyment of their lands for
a decade”. The order said: "The landown-
ers/cultivators who have not withdrawn the
compensation are permitted to withdraw the
same which is in deposit either with Land
Acquisition Collector or the Court."
The two judges differed on a few issues in
their individual judgments, though the gist
in the order represented several common
areas. The order said: “We concur on the
question of quashing the impugned acquisi-
tion proceedings and reliefs to be granted to
the land owners/cultivators. The appeals are
allowed, the common judgment...by the
High Court of Calcutta is set aside."
INDIVIDUAL JUDGMENTS
Justice Gowda in his individual judgment
said scathingly: “The acquisition of land…
was sought to be disguised as acquisition of
land for ‘public purpose’ in order to circum-
vent compliance with the mandatory provi-
sions of Part VII of the LA Act. This action of
the State Government is grossly perverse
and illegal and void ab initio in law and such
an exercise of power by the state government
for acquisition of lands cannot be allowed
under any circumstance. If such acquisitions
of lands are permitted, it would render entire
Part VII of the LA Act as nugatory and
redundant, as then virtually every acquisi-
tion of land in favour of a company could be
justified as one for a ‘public purpose’ on the
ground that the setting up of industry would
generate employment and promote socioe-
conomic development in the state.”
However, Justice Mishra differed here. In
his verdict, he said: “In my opinion it would
remain acquisition for a public purpose as
provided in Section 3(f) of the Act… Public
purpose has to be adjudged in the back-
ground of the facts of the instant case and
the state of West Bengal decided to make
effort to establish manufacturing industries
with a view to attract more private sector
investment and foreign direct investment for
industrialisation at par with the model
adopted by other progressive states.”
He adds: “When the government wants to
attract investment, create job opportunities
and aims at the development of the state and
secondary development, job opportunities,
such acquisition is permissible for public
purpose. The project at hand would have
definitely served the public purpose and
public purpose should be liberally construed,
not whittled down...”
JOYOUS MAMATA
The final verdict was a massive political vic-
tory for the Mamata Banerjee government.
Mamata said: “I am remembering those peo-
ple who made sacrifices fighting for this.
This is a landmark victory. Very happy with
the decision. Now I can die in peace.”
In addition, this order also dealt a serious
blow to the `1,400-crore damages suit which
Tata Motors had filed against the state for
“losses” it suffered when forced out by
Mamata’s land agitation in 2008. The Tatas
finally decided to move out of Singur on
October 3 that year. The company’s then
chairman, Ratan Tata, blamed Mamata’s
“I am remembering
those people who
made sacrifices
fighting for this.
This is a landmark
victory. Very happy
with the decision.
Now I can die in
peace.”
—Mamata Banerjee,
West Bengal
chief minister
UNI

agitation for the pullout decision. On
October 7, 2008, the Tatas announced that
they would be setting up the Nano plant in
Sanand, Gujarat, at the invitation of
Narendra Modi, the chief minister of
Gujarat then.
The apex court verdict was a shot in the
arm for Mamata. She said: “We will see to it
that all land is returned to the farmers with-
in the court-ordered time frame. For the
tracts of land that have become unsuitable
for farming, we will make them tillable again
before returning them to the farmers.”
To this end, she ordered the use of heavy
earth-moving machinery to break
concrete and other material which was
meant for the proposed car factory. The
public works department is now mulling
over whether to ask for more time to
return the land as the monsoons have played
a spoiler.
The initial fight was for approximately
400 acres which belonged to the farmers
who were unwilling from the beginning to
part with it. However, the court took cogni-
sance of the entire issue.
CPM STATEMENT
This judgement has put the CPM in a rather
unenviable position. The chief minister at
the time of this land acquisition was
Buddadheb Bhattacharjee. Forced into a
corner, the CPM has blamed the 1894 Land
Acquisition Act for the huge setback. A
statement issued by the CPM politburo said:
“…The acquisition process had to be
undertaken under the 1894 Land
Acquisition Act, which was the only legal
instrument available at that time. This was
an Act, which did not protect the interests of
farmers adequately.”
It also said that in 2011, while reviewing
the result of the West Bengal assembly polls,
the party’s Central Committee acknowledged
that the administrative and political mis-
takes in this regard proved costly. This also
shows the glaring differences that developed
between the state chapter of the CPM in
West Bengal and its central leadership.
The judgement is likely to have a huge
economic fallout. A Kolkata-based industri-
alist who didn’t want to be identified said
there was a dire need for the proposed
JusticeVGopalaGowda
He said the action
of the state
government was
grossly perverse
and illegal and can’t
be allowed.
JusticeArunMishra
In the Singur case,
the acquisition was
done for a public
purpose as provided
in Section 3(f) of the
Act, he held.
BuddhadebBhattacharjee
His party now says
that the deal had to
be signed under the
1894 Land Acquisition
Act, the only law
available at that time.
RatanTata
The order has dealt a
blow to the `1,400-cr
damages suit which
Tata Motors had filed
against the state for
losses suffered.

amendments to the 2013 Land Acquisition
Act to go through expeditiously in parlia-
ment if Prime Minister Narendra Modi’s
dream of Make in India has to come true.
Incidentally, it took the government more
than a century (2013) to amend the colonial-
era Land Acquisition Act of 1894.
He said: “While I salute the Supreme
Court for this landmark verdict in realising
the dreams and aspirations and respecting
the meagre possessions of the farmers of the
state, extraction of political mileage from
this could block further economic initiatives
for years to come.”
He added: “We must understand that big
industry will need big chunks of contiguous
land. You cannot expect an automobile plant
or a steel plant to come up in your backyard.
For that purpose, you will need a land bank,
because if a private party uses all his
resources and time negotiating with hun-
dreds and thousands of landowners, he will
deviate from the main purpose of setting up
a major industry that could employ thou-
sands and improve the socio-economic fab-
ric of the entire region.”
The industrialist felt that all legal activity
could have been restricted to the 400 acres
of land belonging to the unwilling farmers.
That would have left the rest of the land in
the state’s land bank. “It is essential that
West Bengal develops a good land bank to be
able to attract large investment,” he said.
While the present Trinamool Congress
government is against setting up of an SEZ
and even stopped a major Wipro investment
in the IT sector, it concurrently wants invest-
ment to flow in. But industry, like crops,
needs land.
PULL OF INDUSTRY
India, among the world’s fastest growing
economies, has virtually run out of land that
can be easily acquired for huge manufactur-
ing bases. To this end, many of the laws
introduced in the past decade to protect the
rights of farmers and indigenous people have
been diluted in their implementation. This,
say activists, has not helped the vulnerable.
According to the Internal Displacement
Monitoring Centre, 65 million people in
India have been displaced by dams, high-
ways, mines and airports between 1950 and
2005. Less than a fifth has been resettled.
With land agitations erupting around the
country, this seminal judgement will now be
cited often to block industrial development.
Public projects such as roads, ports, bridges
and hospitals, most of which are in the
exempted schedule of the Act, could still go
through but with some difficulty. In August,
two persons were killed in Jharkhand as vil-
lagers clashed with the police over loss of
their homes to a power plant. Similar
protests took place in Greater Noida over the
UP government requisitioning land for
building the Yamuna Expressway.
GUJARAT’S GAIN
On October 7, 2008,
the Tatas announced
they would be setting
up the Nano plant
in Sanand at the
invitation of
Narendra Modi (left).
Sanand rolled out
its first Nano on
June 2, 2010
UNI

IL
Industry body FICCI had suggested that
the government should not interfere in pri-
vate purchase and that it should allow it to
happen. It said that the law in its
present form takes up so much time that the
land purchase neither benefits farmers
nor industry.
FUTURE AMENDMENTS
So what kind of amendments should be
made to the 2013 Land Acquisition Act?
Here are some suggestions from various sec-
tions of society:
Get the consent of farmers or the
landowner. For a PPP project, consent of 70
percent of landowners is required. The gov-
ernment wants this consent clause diluted.
The Congress has accused the BJP of keep-
ing the interests of industry above all else. It
also points out that large tracts of land that
had been taken over have been kept unused
for years on end, so that land prices could
rise and a killing be made. This was one of
the reasons why the new act was thought of,
it alleges.
Others say that the consent percentage
should be reduced to 50 percent so that it
benefits all.
Since January 1, 2014, when the Act
became law, not a single tract of land has
been acquired because of the stringent
requirements. The Congress says that in the
past, land acquisition took place far beyond
what was necessary.
There has been a positive side too. As per
Section 24(2) of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation and
Resettlement (Amendment) Ordinance,
2015, hundreds of thousands have benefited
when land, unused for years, was released.
The social impact assessment has not been
completed; it should be done quickly. There
are allegations that the process (of assess-
ment) has hardly started.
Land acquisition for private investment,
(as was the case with Tata Motors) needs a
steep 80 percent consent. This is near
impossible if arable land is involved. It
is suggested that this be reduced to 70 per-
cent or less.
It is obvious that a middle path needs to
be found.
The Situation Assessment Survey
of Agricultural Households con-
ducted by the National Sample
Survey Office (NSSO) for the 2012-
13 crop year from July to June has
made an interesting observation.
While 58 percent of India is still
rural (2011 Census), only 40 per-
cent of rural households are
dependent on farming as the main
income source, says NSSO. That is
not all. It was found that income
from cultivation and rearing of ani-
mals accounted for just 59.8 per-
cent of the average Indian farming
family’s monthly income.
This casts doubt about the com-
mon perception that agriculture
generates just 15 percent of India’s
GDP despite the large rural popula-
tion. How do rural families make up
for the rest of their income? It was
from wage/salaried employment,
non-farm business and other
sources such as remittances, inter-
ests and dividends. That means
that no more than 58 percent of
rural households remain “agricultur-
al” by definition, when over 40 per-
cent of their income comes from
non-farming economic activities.
According to the study, in West
Bengal, of the 45 percent rural pop-
ulation, 58.7 percent reported farm-
ing as their primary source of
income, but derived only 30 percent
of their income from agriculture.
Agriculturalreality
LIVELIHOODS
AT STAKE
Farmers at Badarpur
border on the way to
join Anna Hazare at
Jantar Mantar to
protest against the
Land Acquisition Bill
UNI

Anew “Revenge porn” law
came into force in England
and Wales in 2015 and over 200
people have since been prose-
cuted. Revenge porn involves
uploading sexual images of an
ex-partner to cause them humili-
ation or embarrassment. Now it
is the turn of The New South
Wales Government in Australia,
which is set to criminalize
revenge porn, making creation
and distribution of sexually
explicit images without consent
an offense.
As most of these crimes are
committed using the social
media, a parliamentary inquiry
also previously looked at several
aspects of privacy laws.
Revenge porn is a crime
INTERNATIONAL BRIEFS
Agroup of illegal immigrants are
now suing the University System
of Georgia for access to state col-
leges. They are opposing the Uni-
versity policy which states: A person
who is not lawfully present in
the United States shall not be
eligible for admission to any
University System institution.”
This deprives undocumented
immigrants of the chance to
gain admission to state’s top
schools no matter how good
their grades are or how much
money they are willing to pay.
Kevin LaPlatney of Nassau County
has filed a class action lawsuit
against Beanfield Snacks
Corportation, alleging violation of New
York’s consumer protection law.
According to the complaint, Beanfield
products are falsely advertised as hav-
ing all-natural ingredients, when in
reality ingredients like lactic acid, citric
acid, malic acid and tapioca mal-
todextrin are used which are recog-
nized as synthetically produced ingre-
dients. LaPlatney seeks trial by jury
and monetary, treble and punitive
damages.
If found guilty, Beanfields Snacks
will have to change the composition of
the listed products.
Beanfield Snacks sued
LLB students and
graduates across
Scotland can now sign
up as “student associ-
ates” of the Law
Society of Scotland.
This move on part
of the Law Society is a
first of its kind. The
students can now look
forward to receiving
benefits like free
career advice and CV-
boosting tips, as well
as opportunities to get
involved with initiatives
like the society’s
Street Law scheme
and career mentoring
program. Student
associates will also be
able to access dis-
counted Continuing
Professional
Development (CPD)
events that target new
lawyers. This move will
give law students the
opportunity to get
involved with their pro-
fessional body at an
earlier stage.
In a one-of-a-kind move,
Germany’s Chancellor Angela
Merkel’s Cabinet has approved a
proposal allowing audio transmis-
sion of trials to media rooms within
the courthouse, live public video
broadcasts of verdicts by the coun-
try’s highest appellate courts and
video documentation of trials of his-
torical interest for archive purposes.
As of now, only landmark rulings
by the Supreme Court and the
Federal Constitutional Court are
broadcast on television. The propos-
al is yet to be approved by the par-
liament and in the end, the courts
will have the final say.
Courtroom on TV in Germany
—Compiled by Shailaja Paramathma
Woes of illegal aliens
Career boost to law students

Contending that an FIR in gen-
eral is a public document,
the Supreme Court ruled that it
must be up on the official portals
of the concerned state police or
the state government within 24
hours. It asked all state govern-
ments and UTs to comply with
its verdict by November 15.
The Court, however, made a
distinction for Nagaland,
Manipur, Sikkim and J&K and
extended the period to 48 hours
in these pla-ces, considering
network problems. It also clari-
fied that the
verdict would not apply in cases
where the disclosure of an FIR
report could hamper proper
investigation.
There were several reasons
for the Court to arrive at the
decision. First, it felt that it was
the right of the accused to know
what is written in the FIR for him
or her to challenge it legally;
second, an FIR in public domain
would entail an un-biased probe;
third, an accu-sed can claim
“not guilty” unless proved other-
wise in courts.
In sensitive cases, the deci-
sion not to upload the FIR must
be taken by a DSP through a
“speaking order”.
Upload FIRs on websites
SUPREME COURT
Music composer Vishal
Dadlani should
approach the concerned
high court for relief, the
apex court ruled after
hearing a plea that he
should not be arrested.
The Court declined to
pitch in at this stage.
The bench dealing with
the plea did not entertain
the argument of Dadlani’s
counsel that he was a
celebrity and a victim of
political vendetta, clearly
indicating that the law
does not make an excep-
tion for anyone.
A case has been filed
by the Ambala Police
against Dadlani for his
disparaging tweet
against a Jain monk
under various sec-
tions. He has
already apologized
for his remarks.
The court did not
take into account
Dadlani’s con-
tention that he
meant no disre-
spect to the seer.
Vishal Dadlani’s plea
India’s ODI and T20 captain
Mahendra Singh Dhoni recently got
relief from the Supreme Court as all
legal action against him for appearing
as Lord Vishnu on the cover of a
magazine was struck down.
He was earlier summoned by an
Anantpur trial court under Section
295 of IPC (Injuring or defiling a
place of worship with intent to insult
the religion of any class) coupled
with Section 34 (acts done by sever-
al persons in furtherance of common
intention).
Later, the Karnataka High Court
supported the trial court’s decision
and refused to cancel legal action
against Dhoni. The cricketer had
moved the apex court through a
Special Leave Petition (SLP) against
the high court order.
The apex court observed that the
trial court should have ensured a
thorough inquiry to find out whether a
criminal case could at all be made
out against the cricketer, before sum-
moning him. This aspect was also
ignored by the High Court, according
to the apex court. It therefore struck
down the order of the High Court.
Earlier, the Supreme Court had
put on hold criminal proceedings
against Dhoni in September 2015 as
well as action on the verdict of the
High Court.
A social activist Jayakumar Hire-
math had filed a complaint against
the cricketer.
No legal action against MSD

Essar group promoter Ravikant
Ruia was denied permission by
the apex court to leave India, till the
trial was on in the 2G spectrum
case. The Court, without naming the
person, observed that it already had
a bad experience with another busi-
ness honcho. According to the
Court, the man had betrayed the
court’s trust and did not come back
to India despite promising to do so.
The Counsel for Ruia pleaded
that he needed to go abroad for
business interests and was even
willing to pledge his brother
Shashikant as a surety with the con-
dition that he be put in jail in case
Ruia failed to come back. But the
Court was not convinced and did
not want to take any chances.
The Court was not swayed by
arguments put up by Ruia’s counsel
that his client had gone abroad mul-
tiple times and submitted himself in
front of the court whenever needed.
It also did not entertain the con-
tention that the CBI was not likely to
immediately pronounce its verdict in
the case.
The Public prosecutor in the
case vehemently opposed the plea
of Ruia and warned the court that
it would be very difficult to bring
him back.
Ruia can’t leave India
The CBI was given the green signal to
proceed with its probe into the
Bulandshahr rape case by the apex court
which asked it to complete the task as
soon as possible. The Court had earlier
stalled investigation by the UP Police into
the brutal assault. This was done after
Kaushal Kishore, whose wife and daugh-
ter were raped, had alleged that the UP
Police may not bring justice to the victims
in the light of “biased” comments made
by senior UP minister Azam Khan.
The CBI, while apprising the apex
court that the Allahabad High Court had
already handed over the probe to it on
August 12, pleaded that any further delay
in the investigation will only derail it. The
agency contended that avenues would
open up for removing evidence or “caus-
ing prejudice to the conduct of the case”.
It also argued that any further delay
would also reduce the 90-day period that
the agency needs for filing a charge
sheet. The CBI had already registered a
new FIR on August 18 against the six
accused arrested by the UP Police.
The apex court also said that hence-
forward it would monitor the case and
look into all “contentious” issues like
shifting the trial from Bulandshahr to Delhi
and whether Azam Khan’s statement was
appropriate. Khan had insinuated that
there was a “political conspiracy” behind
the allegations.
Bulandshahr probe by CBI
In a significant order that will put
corrupt government officials in
the dock, the Supreme Court ruled
that they will face legal action for
allegedly indulging in corruption
while holding a particular post
even though they no longer are in
that post.
Immunity under Section 19(1)
of the Prevention of Corruption Act
will not be applicable to them, the
Court held. According to the sec-
tion, courts can’t take note of any
chargesheet against a corrupt
public servant without an NOC
from the government to the con-
cerned probing agency.
No immunity
for corrupt
officials
—Compiled by Prabir Biswas, Illustrations: UdayShankar

I
N response to a petition by a
woman, Ishrat Jahan, that triple
talaq is unconstitutional and
violative of a woman’s funda-
mental rights, the All India
Muslim Personal Law Board
(AIMPLB) has said that courts
cannot interfere with personal laws.
According to news reports, AIMPLB’s
reply to Jahan’s petition justifies triple talaq
saying that time-consuming legal proceed-
ing and the expenses incurred thereon may
lead the husband to take recourse to illegal
methods of getting rid of his wife by mur-
dering her or burning her alive!
Ishrat Jahan is the mother of four chil-
dren ranging from 7 years to 12. In addition
to pronouncing triple talaq and leaving
Jahan without maintenance, her husband
took the children away from her and has not
permitted them to have any contact with
her. According to some reports, he has mar-
ried again.
COURTS/AIMPLB/ Triple Talaq
It is time the All India Muslim Personal
Law Board takes a cue from the reforms
of other Muslim countries where triple talaq
is banned
By Nayantara Roy
StopBeing
anOstrich!
TENUOUS BOND
A mass marriage ceremony
organized by Hussaini Vaqf
Committee in Ahmedabad
UNI

Earlier, another woman, Shayara Bano,
who was also divorced by triple talaq, had
filed a case against this unilateral and ins-
tantaneous divorce procedure.
BANNED ELSEWHERE
Triple talaq, or talaq-e-bidat, is banned in
several countries with a Muslim majority
population, including Pakistan. Journalist
Ajaz Ashraf writes in Scroll in an article
titled, If Pakistan and 21 Other Countries
have banned Triple Talaq why can’t India?
that in Pakistan, triple talaq was banned on
the recommendations made by the Commi-
ssion on Marriage and Family Laws in 1956.
It recommended that for a talaq to be effec-
tive, it should be pronounced after three
successive tuhrs (ie period between menses).
This gives time for reconciliation and dis-
cussions between the couple. Abolition of
triple talaq by the Muslim Family Law ordi-
nance, 1961, was upheld by the Pakistan
Supreme Court. This remains the position
till date. Bangladesh inherited this law when
it broke away from Pakistan in 1971 and,
therefore, does not recognize talaq-e-bidat.
Tunisia and Algeria provide for divorce
only in the courts of law where an attempt to
reconcile the couple is made. Divorce is
granted only after proper investigation.
Turkey and Cyprus have a non-religious
code of civil law with only le-gal proceedings
for divorce available.
The AIMPLB has reportedly also defend-
ed polygamy, saying that it prevents illicit
sex! Turkey has abolished polygamy, as has
Tunisia. In countries like Iran and Pakistan,
a man is required to take permission from
his first wife before marrying again. Malay-
sian laws are stricter. In order to take a sec-
ond wife, a man needs permission from both
his first wife and from the government’s reli-
gious authority.
CHALLENGED BY COURTS
In 2015, the Supreme Court passed a judg-
ment upholding the action of the UP gov-
ernment in sacking a Muslim employee who
had married for a second time. This case is
relevant to answer AIMPLB’s charges that
personal laws cannot be challenged by co-
urts. It was pointed out in that case that
while Article 25 of the constitution protects
the right to propagate and practice religion,
it also says that this right must not infringe
public order, health or morality.
Jahan’s petition says that Section 2 of the
Muslim Personal Law (Shariat) Application
Act, 1937 (See Box) is unconstitutional as it
violates the fundamental rights guaranteed
under Articles 14 (equality), 15 (prohibition
of discrimination on grounds of religion,
race, caste, sex, place of birth), 21 (life) and
25 (freedom to profess and practice reli-
BOUND BY RELIGION?
Muslim women reading
Quran during Ramzan at
Jama Masjid
“A Muslim, who
wants to take
plural wives or to
divorce his wife
unilaterally for
no reason or any
reason, or does
not want to
maintain his
divorced wife, is
engaged neither
in professing
and practicing
nor in promoting
or propagating
his religion.”
—Mohammed Ghouse,
in Personal Laws and
the Constitution
of India
UNI

India Legal 30 September 2016

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