India legal - October 14, 2019

NDIA EGALL STORIES THAT COUNT
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October14, 2019
WillsplittingtheSupremeCourtassuggestedby
VenkaiahNaidu(left)helpsteadythedisposal
ofcases?AnanalysisbyProf.UpendraBaxi
The Gita for
engineers
Saying NO
to vaping
BifurcatingTheSystem

OME Minister Amit Shah’s desire to
expand the National Register of Citi-
zens (NRC) to embrace the entire
nation within its exclusionary embrace
has met with cheers as well as boos.
Among the most vociferous cheerleaders are Hin-
dutva hardliners who believe that the initiative will
finally deprive Muslims of their vote bank power,
put them outside the ambit of mainstream democ-
racy and clear a major minefield in the path of
their beloved “Hindu Rashtra”.
Also backing the move are people who believe
that untrammelled illegal immigration is a threat to
established social systems, demographic balances
and economic activity and can be ignored only at a
perilous cost to the sovereignty of a nation state.
This is nothing new. Both
the views are rooted in
rivalries, primordial preju-
dices and “righting histori-
cal wrongs” by trying to
erase history through
demographic manipula-
tion. The Modi-Shah NRC
initiative looks new only
because the political ruckus it has created is a head-
line grabber. The problem of immigration is a
worldwide phenomenon. It is ancient. It is contem-
porary. It is recognised by international bodies as an
issue to be tackled through binding covenants,
humanitarianism and the rule of law grounded in
human rights.
Well before the NRC question resurfaced as a
major electoral trump card for the Modi-Shah BJP,
the controversy was highlighted by the Vajpayee-
Advani BJP as a Sangh Parivar political agenda.
The Law Commission in 2002 also made a high-
level recommendation on finding a balance
between the real problems created by illegal immi-
gration and a law-based approach to handle them
keeping in mind international commitments as
well as the national interest.
It is ironical that in today’s world, which has
been shaped by waves upon waves of human mig-
ration over the millennia, “immigration” and “mig-
rants” have become dirty words in the minds of
millions of people across the globe. Thanks to the
refugee crises stemming from conflicts in the Arab
world and parts of Africa, outsiders pouring into
different countries are considered a dangerous,
polluting sub-human species unworthy of The
Rights of Man which civilised democracies have
held to be universal and valid at all times.
In characterising immigrants as a scourge,
Trumpism in America and the alt-right in Europe
have made the world forget that the act of migrat-
ing across borders as well as the interests of mig-
rants—whether documented aliens or not—is actu-
ally governed by domestic statutes and internation-
al conventions under the rule of law.
This is only a natural
corollary to the march of
human civilisation which
has been shaped culturally,
linguistically, socially and
ethnically by migrants who
made their way to distant
lands due to climate chan-
ges, pestilence, war, con-
quest, epidemics, persecution, forced deportations,
ethnic cleansing, economic hardship, political par-
titions and the compulsions of technology.
Above all, the laws and conventions on refugees
and immigrants are also based on humanitarian
principles founded on historical experience. For
example, had the Jews not kept perpetually migrat-
ing, starting with their expulsion by the Babylon-
ians and Assyrians, and then the Romans and czars
and Nazis, they would probably be extinct today. So
would the Gypsies.
Actually, immigration is the true face of glo-
balisation. Hence, world covenants such as
UNESCO’s International Convention on the
Protection of the Rights of All Migrant Workers
and Members of Their Families came into force in
July 2003. Its primary objective is to protect
migrant workers and their families, a particularly
vulnerable population, from exploitation and the
NRC AND THE EXODUS
Inderjit Badhwar
H
Illegalimmigrationisnothingnew.Itis
aworldwidephenomenon.Itisrecognised
byinternationalbodiesasanissuetobe
tackledthroughbindingcovenants,
humanitarianismandtheruleoflaw
roundedinhumanrights.
Letter from the Editor
4 October 14, 2019

violation of their human rights.
The Convention does not propose new human
rights for migrant workers. Part III of the Con-
vention “is a reiteration of the basic rights which
are enshrined in the Universal Declaration of
Human Rights and elaborated in the international
human rights treaties adopted by most nations”.
So why are those rights subject to another inter-
national legal instrument?
“The Convention seeks to draw the attention of
the international community to the dehumaniza-
tion of migrant workers and members of their fam-
ilies, many of whom being deprived of their basic
human rights. Indeed, legislation implementing
other basic treaties in some States utilizes termi-
nology covering citizens and/or residents, de jura
excluding many migrants, especially those in irreg-
ular situations.”
I
n this context, it is worth studying India’s Law
Commission’s 175th report (2000). It was in
response to former Home Minister LK Ad-
vani’s concerns of millions of immigrants strea-
ming into India across its eastern borders. It was,
and still remains, a far more serious situation—a
harbinger of communal violence, overcrowding,
criminal activities and local job losses—than the
entry of immigrants from Syria and Somalia into
the US or Europe.
The Law Commission’s lengthy recommenda-
tions were calibrated and grounded solidly in inter-
national commitments as well as India’s own con-
stitutional principles. It is a lengthy report, a far
cry from Trump’s ban-’em-’n-lock-’em-up-n’-throw-
’em-out approach.
The Commission chose the option of recom-
mending incorporation of new provisions in the
existing Foreigners Act was to make it effective
enough to meet the main problem of illegal immi-
gration without interfering with the existing legal
frame-work.
“The Commission is of the view that the prob-
lem of illegal migration from neighbouring coun-
tries has to be tackled seriously by providing a
machinery for effective and speedy detection of
illegal entrants. The function of determining whe-
ther a person is an illegal entrant or not is pro-
posed to be entrusted to the Immigration Officers
whose orders shall be appealable, to be heard and
decided by an Immigration Tribunal, manned by a
person who has been a District Judge or an Addi-
tional District Judge.
“The matters shall be decided by them accord-
ing to the principles of natural justice. Besides,
facilitation centres are also proposed to be provid-
ed for detaining the foreigners pending the deter-
mination of their status, and pending their depor-
tation. So far as the offences under the Act are con-
cerned, they are proposed to be tried by the
Immigration Court which would be a court of
District & Sessions Judge to be speciﬁed by the
appropriate government in each district.”
The problem of legal and illegal immigration
into India, especially West Bengal, and Assam, con-
tinues unabated. It is a politically volatile issue. But
in tackling it, given the human dimensions of the
problem, the government must choose the wiser
course of toughness, tempered by legal due process.
HOUNDING MINORITIES?
(Left) West Bengal CM Mamata Banerjee has been vocal
against the NRC in India; people search for their names in the
NRC list in Assam on the day the final list was published
Photos: UNI
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Contact: editor@indialegallive.com
| INDIA LEGAL | October 14, 2019 5

LEAD
12Bifurcation of the Court?
Will splitting the Supreme Court into regional benches as suggested by Vice President
Venkaiah Naidu help ensure timely and cost-effective delivery of justice? Prof Upendra Baxi
delves into the issue
ContentsVOLUME XII ISSUE48
OCTOBER14,2019
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6 October 14, 2019
SUPREMECOURT
16
A Wrong
Undone?
A three-judge bench of the apex
court recalls an earlier order which
diluted the Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act, 1989

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Cover Design:
ANTHONY LAWRENCE
In a signal of hope to
displaced persons of
the Sardar Sarovar
Project, the MP gov-
ernment has gone to
the Court over the
issue of their relief
and rehabilitation
A Brighter Future? 22
Seventeen years after her gangrape and six months after the
Supreme Court ordered relief for Bilkis Bano, the BJP government in
Gujarat shows a callous disregard for compliance in the case
Lawless Fiefdom 18
Stubbed Out
The centre’s decision to ban
e-cigarettes has become controversial
with petitions against the order being
filed in courts and shares of three
tobacco companies shooting up
36
A plea in the Dhaka High Court has forced courts and government
offices in Bangladesh to display Sheikh Mujibur Rahman’s portrait
34
GLOBALTRENDS
With Due Respect
STATES
Bachelor of Technology, Bhagwad Gita
In the face of massive protests, Anna University in Tamil Nadu has backtracked
on its plans to introduce courses in B.Tech which have become controversial
38
Crime & Punishment
The alleged detention of children under the Public Safety Act in Jammu and Kashmir
has become a major issue as there are conflicting views on how to deal with them.
40
The infiltration of Chinese drones into Punjab shows serious gaps in
India’s air defences. This may bring a paradigm shift in conflicts
31
SECURITY
Aerial Sentries
Minority
Bashing?
To stop love jihad, the UP govern-
ment is drafting a law like other
states to prevent conversion.
Those changing their religion will
now have to inform the govern-
ment within a month of doing so
Gutsy Doctor
The unseemly fracas over Dr Kafeel Khan’s involvement in the death of children
two years ago in BRD Medical College, Gorakhpur, refuses to die down
46
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
Law and the Lord
A Supreme Court verdict of 2017 in
the St Mary’s Church case in Kerala
has been finally implemented by the
state government
48
43
In an interesting case in the Punjab and Haryana High Court, a
husband and wife will get elevated as judges on the same day
26
PROFILE
Creating History
The centre will roll out an ambi-
tious e-assessment scheme
for collecting tax to reduce cor-
ruption and bring in secrecy in
procedures. But operational
issues need to be addressed
28
COMMERCE
Laudable Step?
In one of his most bizarre days in office, US President Donald Trump
became mean and belligerent over his possible impeachment
35POTUS Loses His Cool
FOCUS

8 October 14, 2019
Anthony Lawrence
RINGSIDE
21st Century India

Courts
—Compiled by India Legal Team
Aslew of petitions challenging the centre’s
decision to abrogate Article 370, which
accorded special status to Jammu and Kash-
mir, will now be heard by the Supreme Court
on November 14. As a result, the central
government will be able to implement the
Jammu and Kashmir Reorganisation Act,
2019, from October 31. The state will be
divided into two Union Territories of Jammu
and Kashmir and Ladakh under the Act.
The five-judge Constitution Bench led by
Justice NV Ramana, and also comprising
Justices SK Kaul, R Subhash Reddy, BR
Gavai and Surya Kant, allowed four weeks’
time to the centre and the J&K
government to file counter-affi-
davits in response to the chal-
lenge. “We have to allow the
centre and the J&K administra-
tion to file counter-affidavit oth-
erwise we can’t decide the
matter,” the bench said. It,
however, ruled that no more
petitions related to abrogation
of Article 370 will be enter-
tained by the Court.
Earlier a bench headed by Chief Justice of
India Ranjan Gogoi had formed a five-judge
Constitution Bench headed by Justice
Ramana to hear all petitions pending before it
related to abrogation of Article 370. The peti-
tioners pleaded that at the most two weeks
be allowed for filing responses and the clutch
of pleas will have no relevance if they are
taken up by the Court after October 31 on
the ground that once the delimitation is done
after the Reorganisation Act comes into play,
going back will be an impossible task.
A three-judge bench of the top court,
comprising Justices Ramana, Reddy and
Gavai also heard a batch of pleas questioning
people being put under detention and the
total communication blockade in the state
from August 5 when the special status of
J&K was revoked. After hearing arguments
from the petitioners, the bench adjourned
hearing on some of the pleas to October 16.
Maharashtra CM
to Face Trial
The Supreme Court set aside
the clean chit given to Maha-
rashtra CM Devendra Fadnavis in
an election affidavit case and
asked the trial court in Nagpur to
consider the matter afresh for
trial based on a complaint filed
by advocate Satish Ukey. He
was accused of keeping under
wraps two pending criminal
cases in his election affidavit
filed in the 2014 assembly polls.
A three-judge bench ruled
against the earlier Bombay High
Court order and the trial court
judgment which had exonerated
Fadnavis and said that the
orders were “not legally tenable
and deserves to be set aside”.
Adivision bench of the Calcutta High
Court recently granted anticipatory bail
to former Kolkata police commissioner and
now Additional Director General of the West
Bengal Criminal Investigation Department
Rajeev Kumar. Kumar, who is allegedly
absconding, had pleaded for interim bail.
The Central Bureau of Investigation (CBI)
is seeking his custody for interrogation in
the Saradha chit fund case.
The Court ruled that there was no need
for Kumar’s custodial interrogation at this
stage of the probe and told the central in-
vestigation agency that Kumar must be gi-
ven 48-hour notice before he is called for
interrogation. It further asked Kumar to get
bail from a subordinate court after furnish-
ing two sureties of `50,000 each.
The Court, however, asked Kumar to
render full cooperation to officers probing
the concerned case and appear for interro-
gation after the CBI gives him prior notice.
A Breather for
Rajeev Kumar
SC to Hear Art
370 Pleas on
November 14
No Scope for
Mediation
One of the three parties in the
Ram Janmabhoomi-Babri
Masjid title dispute case, Ram
Lalla Virajman, told the Consti-
tution Bench of the Supreme
Court hearing the Ayodhya mat-
ter that it was not part of any
mediation process to resolve the
issue. The Bench is hearing app-
eals daily against the September
30, 2010, verdict of the Allaha-
bad High Court dividing the
2.77-acre disputed land in
Ayodhya among the Sunni Waqf
Board, the Nirmohi Akhara and
Ram Lalla Virajman and the
hearings will get over by October
18. Ram Lalla Virajman referred
to media reports about fresh
mediation efforts being made.

ISTHAT
Can a person marry again without
disclosing the marriage to his
first wife who is alive?
If a man or a woman marries
again when the first spouse is still
alive and that too without his/her
knowledge, the said marriage is
null and void as per the law and
thus an offence. Section 494 of
the IPC says: “Whoever, having a
husband or wife living, marries in
any case in which such marriage
is void by reason of its taking
place during the life of such hus-
band or wife, shall be punished
with imprisonment of either des-
cription for a term which may
extend to seven years, and shall
also be liable to fine.” However,
the Section also clarifies that
such a marriage can be allowed
under a few exceptions.
Section 495 of the IPC deals
with the same offence on the
grounds that the first marriage
was not disclosed to the second
wife or husband. It says:
“Whoever commits the offence
defined in the last preceding
Section having concealed from
the person with whom the subse-
quent marriage is contracted, the
fact of the former marriage, shall
be punished with imprisonment of
either description for a term
which may extend to ten years,
and shall also be liable to fine.”
— Compiled by Ishita Purkaystha
Can’t Marry On
the Sly
Can a woman hire an advocate to
argue on her behalf in a family court
for any marital dispute?
According to Section 13 of the Family
Courts Act, 1984, no legal practition-
er can appear in family courts. The
provision, however, enables a family
court judge to appoint a legal expert
as amicus curiae for legal assistance
to the court in the interests of justice.
The constitutional validity of Sec-
tion 13 has been challenged in the
Rajasthan High Court on the grounds
that it violates the fundamental right
to practise any profession under Arti-
cle 19(1)(g) and the Advocates Act,
1961. Section 30 of the Advocates
Act guarantees an advocate the right
to practise in any court, including the
Supreme Court, or tribunal which is
authorised to take note of evidence.
No Lawyer Allowed
in Family Courts
?
10 October 14, 2019
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What is child pornography? What is the punish-
ment for displaying such pornographic content?
The changes made in the Protection of Children
from Sexual Offences (POCSO) Act, 2012, by
the centre have finally led to a proper definition
of child pornography. According to the Ministry
of Women and Child Development, child
pornography is defined as “any visual depiction
of sexually explicit conduct involving a child
which includes photographs, videos, digital or
computer generated image indistinguishable
from an actual child and an image created,
adapted or modified but appear to depict a
child.” The punishment under the new amended
Act is also more severe for depicting a child or
children in any pornographic content. A mini-
mum of five years’ jail, with a fine, is imposed
after the first conviction. The amendment
imposes a minimum of seven years’ imprison-
ment, with a fine for subsequent convictions.
No Scope for Confusion
How are prison sentences cal-
culated when a person is con-
victed for multiple crimes dur-
ing a trial?
Section 31 of the Code of Cri-
minal Procedure states that a
court, subject to Section 71 of
the IPC, is competent to try
multiple offences during a trial
in a single case and can order
jail terms as punishment after
conviction, which could run
either concurrently or consec-
utively, depending upon the
gravity of the offences.
In the case of concurrent
sentences, a court orders
multiple jail terms for a con-
victed person and these terms
run at the same time. In con-
secutive sentences, the jail
terms run one after the other.
Courts are empowered to
inflict a maximum punishment
of 14 years or twice the am-
ount of punishment which it
can order for a single offence,
whichever is lower.
Jail terms for separate crimes

Lead/ Supreme Court Benches Prof Upendra Baxi
ICE President of India M
Venkaiah Naidu recently
(in a speech while releas-
ing a book by veteran
lawyer Parameswara Rao)
called for four benches of
the Supreme Court. In a widely reported
statement issued by his secretariat later,
he referred to Article 130 and said the
move to bring about changes in the apex
court would not require an amendment
to the Constitution because it already
provided for the Court to “sit in Delhi or
in such other place or places, as the
Chief Justice of India may, with the
approval of the President, from time to
time appoint”. The concern for access to
justice is important and the vice presi-
dent made several specific suggestions.
The vice president is in very distin-
guished company. Earlier, the Law
Commissions (125th Report and 229th
Report recommended this course of
action). But we should also note that it
WillsplittingtheCourtinto
regionalbenchesassuggested
byVicePresidentVenkaiah
Naiduhelpensuretimelyand
cost-effectivedeliveryof
justice?Itwouldnoteven
needanamendmentto
theConstitution
V
Bifurcation
of the Court?
12 October 14, 2019
Anthony Lawrence

EASING LEGAL PROCESSES
Vice President M Venkaiah Naidu raised the
issue of SC benches, while releasing the
book, Parameswara to PP, in New Delhi
follows the constitutional increase of
three more Supreme Court Justices and
some expeditious elevations, bringing
the judge strength to 33.
H
owever, the Supreme Court, all
the Justices included, rejected
the Commission’s proposal that
a constitutional bench be set up at Delhi
to deal with constitutional and other
allied issues of national importance and
four Cassation Benches at Delhi,
Chennai/Hyderabad, Kolkata and
Mumbai to deal with all appellate work
arising out of the orders/judgments of
High Courts of the particular region. A
social action litigation is still with the
Supreme Court on the need to set up a
National Court of Appeal and the matter
is sub-judice. Given the expanded inter-
pretation of Article 21 and demospru-
dential co-governance of the nation, it
remains exceptionally difficult to distin-
guish between constitutional and other
forms of litigation.
Justice Ruma Pal, the then longest
serving woman Justice in the Supreme
Court (see India Legal, November 26,
2018) recently confided to the nation
that “at an informal meeting, all of the
then sitting judges of the Supreme
Court (including myself) advised the
then Chief Justice of India to decide
against the request of the then Central
government to sit in other places in the
country under Article 130 of the
Constitution. The reason we (judges)
decided against it was because we felt
that the authority of the Supreme Court
would get diluted”. This is a strong con-
sideration and the fact that the entire
Supreme Court negatived it presages a
judicial reading suggesting subjecting
that Article as providing ways, if any, of
addressing the problem of judicial
access in a manner consistent with the
processes and principles of judicial
review powers.
But Justice Pal now considers it “fal-
lacious” because many “High Courts in
this country have different Benches for
meting out justice without ‘justice’ being
‘diluted’. For example, the Bombay High
Court has four benches—in Mumbai,
Aurangabad, Nagpur and Panaji (Goa)
—and the quality of its decisions or
status have certainly not been diluted
thereby”. She laments that the
protagonists of access to justice “in
PIB
Articulateandelaborateprocesses
ofjudicialdeliberationhavetobe
devised.InmanyHighCourts,ithasbeen
allegedthatsomeJusticesareassigned
tofar-offbenchesonthesolediscretion
ofthechiefjustice.Thefactthatsuch
thingscanbesaiditselfindicatesthe
needforspecificguidelines.

there. How may one resolve a volatile
and sentimental matter having several
aftermaths and existential implications
for people concerned by sheer evasion or
through over-rational approaches? How
many and where in the region should
Supreme Court benches be seems a
major question of constituting the terri-
torial spheres of access to justice.
Evasion seems a more frequent
answer, but the procedure for decision
for High Court benches was clarified by
the Union law minister (in a written
reply in the Lok Sabha again on April
28, 2016) that the consent of the central
government is the last step. The first
step should be by the chief justice of the
High Court; second, the governor of the
state and third, a “complete proposal
from the State Government” which is to
“provide infrastructure and meet the
expenditure”. The bizarre aspect of the
procedures is that constitutional citi-
zens, remote from the administration of
operating the system” continue to over-
look “many lawyers through their dis-
honesty in many forms”. (The Hindu,
April 2, 2019). Since Article 32 (a fun-
damental right of all to access their con-
stitutional remedies) may be said to be
adversely affected, setting up of such
courts may be ruled out as un-/para-
constitutional.
Besides, Article 130 entails the exer-
cise of the joint powers of the chief jus-
tice of India (CJI) and the president.
The Constitution requires that the presi-
dent shall act on the advice of the coun-
cil of ministers and the Supreme Court
has leaned towards the view that all ref-
erences to the CJI must mean that he is
acting in the judicial collegium.
Therefore, at least the collegium must
speak and on such a matter, unanimous-
ly. But the matter may be considered so
significant that the full court also should
be convened and speak unanimously.
Further, given the basic structure doc-
trine, it is more likely than not that the
Court will negate any unilateral action
by the executive or the legislature.
T
he central question is how to
innovate access. In the abstract,
one may be tempted to say that
judicial centralisation is in principle a
good answer, but the question ultimate-
ly is of constitutional architecture. As
concerns High Court benches, Justice
Ruma Pal speaks only about the success
stories, but failure stories are equally, if
not more, critical. Certainly, as I pointed
out in the Sailabala Pujari Memorial
Lecture at NLUO (2016), location deci-
sions can prove irksome as may be seen
by anyone who has read Justice Jaswant
Singh’s landmark report in the eighties.
He depicted how lawyers in Uttar
Pradesh were bitterly factionalised over
where the High Court Circuit Bench in
the western region should be, but was
also able to decide that an additional
bench should be located in Agra.
Certain sections of the Bar in western
Uttar Pradesh still feel aggrieved and
recourse to a symbolic strike even till
today over the non-creation of a bench
justice, may at any rate never come to
know reasons for or against the forma-
tion of benches! Moreover, it does not
involve all the stakeholders. However, if
benches are to be formed in the name of
people’s access to justice, maximal trans-
parency remains integral to decisions to
decentralise justice delivery.
Transparency in access decisions
also means avoidance of judicial feudal-
ism, a dis-virtue in constitutional gover-
nance. Articulate and elaborate process-
es of judicial deliberation have to be
devised. In many High Courts, it has
been alleged that some Justices are
assigned to far-off benches on the sole
discretion of the chief justice. No means
of verifying this information about
alleged misuse of this power exists, but
the fact that such things can be said
itself indicates the need for some specif-
ic guidelines. In this zodiac, may be the
judicial collegium at the High Court
and the Supreme Court take a unani-
mous decision regarding the formation
of benches and its judicial personnel?
May be the conference of chief justices
should help evolve an articulate proce-
dure. But the general principle in access
to justice remains: the convenience of
Justices and lawyers matter but the
paramount consideration always is
Lead/ Supreme Court Benches/ Prof Upendra Baxi
14 October 14, 2019
JusticeRumaPalrecentlysaidthat“at
aninformalmeeting,allofthethen
sittingjudgesoftheSCadvisedthethen
CJItodecideagainsttherequestofthe
thenCentralgovernmenttositinother
placesinthecountryunderArticle130”.
humanrightsinitiative.org

expeditious, efficient and equitable
justice to all.
To achieve this, many changes are
needed. What should be the total judge
strength of the entire judiciary? Even
when the retirement date of a Justice is
well-known in advance, why should
there be enormous delays in filling
vacancies? Does the right to access and
judicial infrastructure not entail a duty
to appoint judges on time?
Perhaps access may notably improve
if the Supreme Court strength is at least
extended to 75 Justices so that at least
ten of them may be assigned to each of
its proposed benches. A five-judge con-
stitution bench shall consider Article 32,
raising significant questions of constitu-
tional law and other Justices may be
empanelled as per the revised rules of
the Supreme Court. May we innovate
the constitutional office of a deputy
chief justice of India, who shall also be
entitled to be a member of the col-
legium? Should the benches be headed
from among the seniormost Justices?
Should they exercise the new curative
jurisdiction as well? Should a review
bench be headed only by senior Justices
in Delhi? I do not here consider a simi-
lar expansion of the apex court library
and administrative resources at each
regional bench, but say merely that
improving access really means a sub-
stantial increase in national investment
in adjudication.
W
ould judicial decentralisation
justify several apprehensions
about the future of judicial
review? But the Supreme Court itself
has declared (as late as 2012 in Brij
Mohan Lal) the right to access to judi-
cial services a basic fundamental right.
It affirmed that “it is the constitutional
duty of the Government to provide the
citizens of the country with such judicial
infrastructure and means of access to
Justice”, so that “every person is able to
receive an expeditious, inexpensive, and
fair trial”.
Certainly, we the people who gave
unto ourselves this Constitution do not
wish to curb the powers of vigilant and
strict judicial review of actions by co-
ordinate branches of governance. A
mini-revolution in the Constitution is
not necessarily a coup against it as long
as the structural integrity of due process
and judicial review are not impinged
and access is actually promoted within
the arc of constitutional discipline.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
PENDENCY PROBLEMS
Litigants waiting outside a court in Gurgaon;
(below) lawyers protesting for a bench in
western UP, at Jantar Mantar, in New Delhi
Accesstojusticemaynotablyimprove
iftheSCstrengthisatleastextendedto
75Justicessothatatleasttenofthem
maybeassignedtoeachbench.A
five-judgeconstitutionbenchshall
considerArticle32petitions.
Anil Shakya
Anil Shakya

There should be no bar on the grant of
anticipatory bail to any accused, not-
withstanding any judgment or order or
direction of any court.
Following the judgment, Parliament
amended the Act, inserting Section 18A,
which effectively nullified the two-ben-
ch’s judgment in Kashinath Mahajan.
Subsequently, the constitutionality of
Section 18A was challenged before the
Supreme Court.
The three-judge bench also heard
petitions challenging the amendment
but reserved its order in this case, which
would be delivered separately.
The October 1 judgment, authored
by Justice Mishra, noted that the Act of
1989 aimed to remove the disparity of
SCs and STs, who remain vulnerable
and are denied their civil rights. The
judgment drew from the Act’s State-
ment of Objects and Reasons: “The SCs
and STs are subjected to various offen-
ces, indignities, humiliations and
harassment. They have, in several brutal
The three safeguards were, however,
seen as an attempt to dilute the Act’s
stringent provisions against oppression
of SCs and STs, and this led to huge pro-
tests from the Act’s intended beneficiar-
ies. On October 1, 2019, a three-judge
bench, comprising Justices Arun Mish-
ra, MR Shah and BR Gavai recalled the
earlier order of the two-judge bench by
invoking the Court’s review jurisdiction
following a plea from the government.
The three “safeguards” to prevent
“misuse” of the Act were:
There should be a preliminary inquiry
prior to the registration of an FIR aga-
inst those accused under the Act
The Investigation Officer must receive
further approval prior to effectuating
an arrest
Supreme Court/ SC/ST Judgments
16 October 14, 2019
UDICIAL activism is a useful
label to describe decisions taken
by judges when they encroach on
what is understood as the domain
of the legislature and the execu-
tive. A certain degree of judicial
activism is expected as public interest
demands that the judiciary steps in to fill
perceived gaps in law or executive
actions. However, judicial activism
becomes judicial overreach when there is
no public interest to fill imagined gaps in
legislative or executive policy.
The opposite of judicial activism is
judicial restraint when judges refuse to
fill in these perceived gaps in deference
to the doctrine of separation of powers.
Judicial restraint may, however, be in-
terpreted as abdication of judicial res-
ponsibility if public interest demands at
least limited judicial intervention to cor-
rect a perceived injustice.
On October 1, a three-judge bench of
the Supreme Court espoused the virtues
of judicial restraint while recalling an
order passed by a two-judge bench last
year, which had widely come under att-
ack for its judicial overreach. On March
20 last year, Justice Adarsh Kumar Goel
(who is now the chairperson of the Na-
tional Green Tribunal after retiring from
the Supreme Court) and Justice Uday
Umesh Lalit delivered one such order,
which could be described as “judicial
overreach” in a criminal appeal case,
Subhash Kashinath Mahajan v State of
Maharashtra. The bench had expanded
the ambit of this case without the appel-
lants asking for it, and introduced three
safeguards with the aim of preventing
“misuse” of the Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
J
Inabidtocorrectawrong,athree-judgebenchrecallsanearlierorderdilutingtheScheduled
CastesandScheduledTribes(PreventionofAtrocities)Act,1989
By Venkatasubramanian
UP IN ARMS
Members of the Dalit community stopping
a train as they take part in a protest
against the Supreme Court’s order diluting
the SC/ST Act last year
Judicial Correction
UNI

incidents, been deprived of their life and
property. Serious crimes are committed
against them for various historical,
social and economic reasons… When
they assert their rights and resist prac-
tices of untouchability against them or
demand statutory minimum wages or
refuse to do any bonded and forced
labour, the vested interests try to cow
them down and terrorise them…A
special legislation to check and deter
crimes against them committed by
non-SCs and non-STs has, therefore,
become necessary.”
T
he centre submitted to the three-
judge bench that the earlier order
of the two-judge bench would
shake the very objective of the mecha-
nism to prevent the offences of atrocities
and cause a miscarriage of justice even
in deserving cases. Rule 7(2) of the SC
and ST (Prevention of Atrocities) Rules,
1995, provides that the investigating
officer should complete the investigation
within 30 days. Without immediate reg-
istration of FIR and arrest and by pro-
viding anticipatory bail to the accused,
Rule 7 is bound to be frustrated, the
centre told the review bench.
Preliminary inquiry can only be held
in a case where it has to be ascertained
whether a cognisable offence has been
committed or not. If the information
discloses that it has, it is mandatory to
register the FIR, the centre said.
If the benefit of anticipatory bail is
made available to the accused, there is
every possibility of them misusing that
liberty while on anticipatory bail to ter-
rorise their victims and prevent a proper
investigation, the centre contended.
In any case, the Supreme Court had
already held in Kartar Singh v State of
Punjab (1994) that the denial of the
right of anticipatory bail under Section
438, CrPC, would not amount to a viola-
tion of Article 21. Section 18 of the 1989
Act makes it clear that Section 438 of
the Code shall not apply in relation to
any case involving the arrest of any per-
son on an accusation of having commit-
ted an offence under the Act.
The two-judge bench erroneously in-
ferred from the low conviction rate un-
der the 1989 Act that the law had been
abused. The low conviction rate, the
attorney general submitted before the
review bench, is a reflection of the fail-
ure of the criminal justice system and
not an abuse of law.
“The witnesses seldom come to sup-
port the downtrodden class, biased
mindset continues, and they are pres-
surised in several manners, and the
complainant also hardly muster the
courage,” the judgment noted.
“What legislature cannot do legiti-
mately, cannot be done by the interpre-
tative process by the courts,” the three-
judge bench observed. It faulted the ear-
lier bench for its flawed presumption
that members of the SC and ST commu-
nity may misuse the law as a class,
whereas members of the upper castes or
the elite class do not resort to similar
misuse. Human failing and not caste is
attributable to lodging a false report, the
bench reasoned.
J
ustifying the interference of courts
if there is a misuse of law, the
bench ruled out a change of the
law. In 2016, more than 47,000 cases
were registered under the 1989 Act.
“The number is alarming, and it cannot
be said that it is due to the outcome of
the misuse of the provisions of the Act,”
the bench held. The requirement of pre-
liminary investigation before registering
an FIR was seen by the Court as dis-
criminatory to SCs and STs.
The bench also underlined the
Court’s consistent view that if prima
facie a case has not been made out att-
racting the provisions of the 1989 Act,
the bar on grant of anticipatory bail is
not attracted. An accused under the
Act is not without remedy as he or she
can approach the High Court for
quashing the FIR under Section 482,
CrPC, it said.
Permission of the appointing authori-
ty to arrest a public servant is not at all
statutorily envisaged under the 1989 Act.
Therefore, the two-judge bench by mak-
ing it mandatory encroached on a field
which is reserved for the legislature, the
three-judge bench concluded.
ThebenchoftheSupremeCourt,
comprisingJusticesArunMishra
(clockwisefromaboveleft),MRShah
andBRGavai,espousedthevirtuesof
judicialrestraint.Theverdict,authored
byJusticeMishra,notedthattheActof
1989aimedtoremovethedisparityof
SCsandSTs.Itfaultedtheearlierbench
foritsflawedpresumption.

Supreme Court/ Bilkis Bano Gangrape Case
18 October 14, 2019
UCCESSIVE BJP govern-
ments in Gujarat have
dragged their feet, particu-
larly in matters relating to
the minority community,
even when the highest co-
urt of the land has unequivocally ruled
its mind. This was once again brought
into sharp focus on September 30, 2019,
when the Supreme Court directed the
Gujarat government to implement with-
in two weeks an order given nearly six
months ago in the case of Bilkis Bano, a
gang rape victim of the 2002 communal
riots in Gujarat.
On April 23, 2019, a bench headed
by Chief Justice Ranjan Gogoi and com-
prising judges Deepak Gupta and
Sanjeev Khanna had ordered the Guj-
arat government to pay `50 lakh to
Bilkis Bano, provide a government job
and adequate accommodation.
Five months later, Bilkis was back
before the apex court, through her advo-
cate, Shobha Gupta, with a contempt
petition that stated that despite the
order, the Gujarat government had not
provided anything to her. The reply by
Solicitor General Tushar Mehta, that the
compensation amount of `50 lakh had
not been provided for in the victim com-
pensation scheme of Gujarat and that
the state proposed to file a review plea,
did not cut ice with the bench headed by
CJI Gogoi and comprising Justices SA
Bobde and SA Nazeer.
Mehta sought time to provide a job
for Bilkis but the judges were unrelent-
ing. Even two weeks’ time is not needed,
the bench stated. Mehta had to give an
undertaking to the court that their
order would be complied with within
two weeks.
Bilkis was 19 years old and five
months pregnant when her family was
attacked at Randhikpur village in Dahod
district as they were trying to escape
rioters. She was gang raped and 14
members of her family, including her
two-year-old child whose head was
smashed against a rock, were killed. She
survived only because the rioters left her
for dead. Though married, she has been
living a nomadic existence, being forced
to change 25 houses in 15 years due to
threats by convicts in the case who were
out on parole.
Vivek Dube, who later retired as
Andhra Pradesh police chief in 2015,
was the first head of the CBI crime team
which took charge of the case under
Supreme Court orders in December
2003. His investigations led a special
court to sentence 11 men for raping
Bilkis and killing her family members
but acquitted seven people.
The CBI approached the Bombay
High Court for more stringent punish-
ment while the convicted sought quash-
ing of the special court order. The High
Court, in May 2017, convicted the seven
as well. The convicted then approached
the Supreme Court, but their appeals
were dismissed.
Among those convicted by the High
Court were five policemen and two doc-
tors who had botched up the initial
investigation. Interestingly, of the five
cops, four—a deputy superintendent of
police, two inspectors and a constable—
had retired and the fifth, a deputy com-
missioner of police, RS Bhagora, was
dismissed from service only a day before
Lawless
Fiefdom
Seventeenyearsafterthe
incidentandsixmonthsafter
theapexcourtorderedrelief
forthevictim,theBJP
governmentinGujaratshows
disregardforcompliance
By RK Misra
in Ahmedabad
AWAITING RELIEF
Victim Bilkis Bano with her husband at a
press conference in New Delhi
S
UNI

his retirement on May 30 this year.
Despite the fact that his name fig-
ured in the Bilkis Bano case investiga-
tions by the CBI, Bhagora who was a
state cadre officer was promoted to the
IPS cadre in 2006, and until the day of
his dismissal, was enjoying the key post-
ing of deputy commissioner of police
(traffic) in Ahmedabad.
The Supreme Court had on July 10,
2017, dismissed the appeals by Bhagora
and other cops, stating that there was
clear-cut evidence against them. Despite
this, the government waited till virtually
his last day in service to dismiss him,
the apex court order for action against
the errant officer notwithstanding.
While Bilkis, battling an intransigent
state administration, has stoically
roughed it out for almost 17 years and
managed to secure justice, the patience
of an elderly mother fighting for justice
for her dead daughter, Ishrat Jahan,
killed in an alleged fake encounter in
Ahmedabad, has run aground.
On May 1, Shamima Kauser, the
mother of Ishrat Jahan, submitted a let-
ter to the CBI court in Ahmedabad stat-
ing that the slow and tiring pace of the
wheels of justice has sapped her stre-
ngth, and in frustration she has decided
not to contest the case any further.
College student Ishrat Jahan and
three others—Pranesh Pillai, Amjad Ali
Rana and Zeeshan Johar—were killed
on the outskirts of Ahmedabad by a
team of the Ahmedabad crime branch
then led by DG Vanzara on June 15,
2004, in what was later termed a fake
encounter. The cops claimed that they
were part of a Lashkar-e-Toiba terror
module out to kill then Chief Minister
Narendra Modi.
S
hamima’s letter to the CBI on
September 18 conveys that she no
longer intends to remain a party
to the judicial proceedings. The letter is
a sad commentary on the prevailing
state of affairs. “I am heartbroken and
my spirit is shattered at the perpetua-
tion of this culture of impunity. I have
thus instructed my counsel, Vrinda
Grover, that I have lost the will to fight.
The long-drawn and labyrinthine judi-
cial process has exhausted and frustrat-
ed me. I had never imagined seeking
truth and justice could be such an
uphill, arduous and life-consuming task
and I now feel helpless and hopeless.
All the accused cops are out on bail and
some have even been reinstated in serv-
ice despite facing charges of murder
and conspiracy.”
She has also mentioned the Gujarat
government’s refusal to sanction the
trial of the accused and said that “it is
the job of the CBI to prosecute the 11
accused officers. This culture of impuni-
ty needs to be eradicated to protect vul-
nerable citizens”. Shamima’s letter was
delivered during the proceedings on the
discharge applications filed by four
police officers.
This case is a classic example of how
the shifting pendulum of political power
brings about corresponding changes in
key cases with such overtones. Metropo-
litan Magistrate SP Tamang, who sub-
mitted an inquiry report that said the
encounter was fake, was subjected to an
inquiry on his conduct on orders from
the Gujarat High Court which was, how-
ever, set aside later by the apex court.
Satish Verma, a senior Gujarat cadre
IPS officer, who was appointed to an
SIT on the encounter, was shunted to
the Northeast after he too revealed that
the encounter was fake.
On the other hand, the accused offi-
cers in the case close to the BJP have
had the benefit of the government’s
largesse. Retired IPS DG Vanzara and
NK Amin were discharged after the
Gujarat government refused sanction to
prosecute them. The CBI made it known
that it would not challenge the order.
Earlier in February 2018, senior police
officer and former Gujarat DGP PP
Pandey was discharged from the case,
while the discharge plea of four remain-
ing senior police officers has been
moved. “I know for a fact that my
daughter was killed in a premeditated
manner. I have been up against some
very powerful police officers who enjoy
the patronage of the powers that be.”
Nothing sadder could be said.
OnMay1,ShamimaKauser(left),mother
ofIshratJahan,inalettertotheCBI
courtinAhmedabadstatedthatshehad
decidednottocontesthercaseany
furtherduetotheslowpaceofjustice.

zone Group, one of South
India’s leading property
developers is headquar-
tered in Bengaluru. Set up
in 2004 under the able
leadership of Dr. S. Vasudevan,
Ozone Group is an established player
in the premium housing, residential
township developments, commercial
developments, business parks, SEZs,
retail mall and hospitality sectors with
projects in Bengaluru, Chennai,
Mumbai and Goa. Driven from the
front by Dr. Vasudevan, who is an
architect by profession and whose
vast business experience of more
than three decades in property
design and development brings
invaluable proficiency, Ozone Group
has carved a niche for itself with proj-
ects that conform to world-class stan-
dards in terms of quality, fit and fin-
ish. What augurs well for the group
is also the fact that it has strong
financials and a highly capable talent
pool. The company is founded on
three fundamental pillars of Quality,
Customer Centricity and
Transparency.
Ozone Group has been consis-
tently amongst the top-selling realty
brands in South India’s premier realty
market during the last few years. Till
date, the company has already deliv-
ered 13.50 million sq. ft Another 43
million square feet is in the planning
& implementation stage. The compa-
ny has already delivered 12 projects
across Bangalore, Chennai &
Mumbai and is currently in the
process of developing over 25 proj-
ects catering to several different cus-
tomer segments, from affordable
housing to mid-segment to luxury
and lifestyle housing.
The company’s keen focus on
high standards for design and sus-
tainability is evident in the partners it
has chosen to collaborate with
including CPG Corporation,
Singapore, for design. WATG London
is one of the architects and master
planners who are associated with the
Ozone Group, while Fiona Environs,
Dubai and Site Concepts Pvt. Ltd,
Singapore, have been roped in as
landscape consultants. The compa-
ny has attracted investments from
leading private equity funds and
financial institutions like HDFC
Infrastructure Fund, India Bulls, Yes
Bank, and PNB etc.
The management is headed by
Group CEO Mr. Srinivasan Gopalan,
who has extensive knowledge of the
real estate sector. He strongly
believes that people, processes and
technology are the driving force for a
company’s success and is an avid
advocate of the virtue of innovation,
sustainability and environment friend-
ly development. The company has a
400 strong professional employee
base in India and abroad with offices
in GCC countries, USA, Singapore,
Australia, and Canada. Currently
Ozone has a 6,000-strong customer
base with around 20 percent of its
customer base accruing from interna-
tional markets.
Some of the projects of Ozone
Group include Ozone Urbana, WF48,
Residenza, Evergreens, Oasis,
Verdana and Pole Star in Bengaluru;
The Metrozone, The Gardenia and
Greens in Chennai, and Mirabilis, The
Autograph, The Gateway and Kings
Ville in Mumbai. Commercial develop-
ments include Ozone Manay Tech
Park in Bangalore and Ozone Techno
Park in Chennai. Ozone Group is also
planning a hospitality project in Goa.
Awards & Recognition
Ozone Group has won several
awards & accolades for quality con-
struction, design innovation, cus-
tomer service, branding and CSR
activities. These include: Ozone
group being conferred one of the
Most Promising Real Estate Brands
of Asia, The Metrozone project win-
ning the CNBC Awaaz Best
Residential project in Chennai,
CREDAI CSR award, Asian Real
Estate award for Best Township of the
Year, Reality Plus Township of the
year, South, Most Admired Upcoming
Project of the for The Gardenia, in
Chennai, among other. Recently the
CEO of Ozone Group was conferred
as the Inspirational Leader 2018 from
the reputed Asian Business Summit
Committee 2018.
The projects are explained in
detail below:
Bangalore
Ozone Urbana, adjacent to KIAL,
Bangalore
WF48, Opposite to VR & Phoenix
Mall, ITPL Road, Whitefield,
Bangalore
Pole Star, Opposite to Manyata
Tech Park, Bangalore
Oasis, Plotted Development Off
Sarjapur Road, Bangalore
Verdana, Plotted Development,
North Bangalore
Green View Koramangala, Central
Bangalore
Chennai
The Metrozone, Anna Nagar
Chennai
The Gardenia, Anna Nagar,
Chennai
Greens, Next to ELCOT SEZ,
Sholinganallur, Chennai
Mumbai
Mirabilis, Kalina, Santacruz,
Mumbai
The Gateway, Andheri West,
Mumbai
The Autograph, Dadar, Mumbai
Kings Ville, Wadala, Mumbai
Corporate Profile
O
Advertorial

(FRL) at a height of 138.6 m.
The affidavit was presented to a
bench of Justices NV Ramana, Ajay
Rastogi and BR Gavai on October 1. The
MP government also stated that Gujarat
had unilaterally violated the timeline by
filling up the reservoir by September 15
instead of October 15, which was mutu-
ally agreed upon as per safety guide-
lines. The bench deferred hearing on the
matter till October 15 because the Guj-
arat government could not present its
stand and sought more time for filing its
affidavit. Solicitor General Tushar
Mehta appeared on behalf of Gujarat.
The Supreme Court has taken up the
Supreme Court/ Sardar Sarovar Project
22 October 14, 2019
HE Kamal Nath govern-
ment has rekindled hopes
of rehabilitation among
thousands of families who
were displaced by the Sar-
dar Sarovar project. In an
affidavit to the Supreme Court, the Ma-
dhya Pradesh (MP) government said
that as the Relief and Rehabilitation
(R&R) of the Project Affected Families
(PAF) was not complete and several
applications were still pending adjudica-
tion before the Grievance Redressal
Authority, it was opposed to the Gujarat
government’s decision to fill the Sardar
Sarovar Dam to the Full Reservoir Level
T
Inasignalofhopeforthedisplacedpersonsoftheproject,theMPgovernmenthastoldtheCourtthat
astheirreliefandrehabilitationisnotcomplete,Gujaratcannotfillthedamtoitsfullreservoirlevel
By Rakesh Dixit in Bhopal
Muhindro Khundrakpam
Surprising Volte-face
CONTROVERSIAL DECISION
The Gujarat government had
raised the water level of the
Sardar Sarovar Dam to its
highest level on September 15

3,000 applications by the claimants are
pending for land entitlement or a `60
lakh package per PAF granted by the
Supreme Court in its 2017 order. The
letter also accepted that civic amenities,
as per the state policy, such as drinking
water, roads and drainage were not
in place.
The petitioners’ lawyer, Sanjay
Parikh, stressed the gravity of the sub-
mergence which had affected human life
and livelihood. Senior counsel for the
MP government Kapil Sibal asserted
that the impact of submergence was far
more severe than had been presented.
However, Mehta submitted on behalf of
the Union and NCA that water level in
the reservoir had been raised as per the
procedure in the award.
The Kamal Nath government’s stand
is in sharp contrast to its BJP predeces-
sor’s which had told the Court that all
displaced persons had been rehabilitat-
ed. Based on the Shivraj Singh Chouhan
government’s affidavit, the Supreme
Court had in February 2017 ordered all
displaced persons to vacate their homes
in the submergence area by July 2017.
The Kamal Nath government’s affidavit
suggests that the previous BJP govern-
ment had committed perjury by pre-
senting false claims about “zero bal-
rehabilitation dispute following a bunch
of petitions filed on September 17 by
senior advocate Sanjay Parikh on behalf
of the PAF under Article 32 of the
Constitution. The petitioners claimed
that the filling of the Sardar Sarovar
reservoir was illegal and violated law,
state policies and several verdicts of the
apex court. In response, the bench
sought replies from the governments of
Gujarat, Maharashtra and MP and the
inter-state body, Narmada Control
Authority (NCA).
In an earlier hearing on September
26, the Union government and NCA
rejected the plea for reducing the water
level in the Sardar Sarovar to 122m by
keeping the gates open. Their affidavits
also claimed that the NCA and its vari-
ous subgroups for R&R as well as envi-
ronment had already granted all the re-
quisite permissions for filling the reser-
voir to FRL in 2017. The Gujarat gov-
ernment also contended that the Sup-
reme Court’s order of February 8, 2017,
had directed all the PAF to vacate the
villages by July 31, 2017, and this should
have been complied with.
The petitioners, however, cited MP
Chief Secretary SR Mohanty’s letter of
May 27, 2019, to the NCA contending
that thousands of families were residing
in 76 villages and their R&R remains
pending. The letter stated that about
IN FAVOUR OF DISPLACED PERSONS
(Above) The MP government’s turnaround
has vindicated the Narmada Bachao Andolan
led by Medha Patkar; Narmada Bachao
Andolan activists at a dharna in New Delhi
TheKamalNath(left)government’sstandontheissueisinsharpcontrasttoShivraj
SinghChouhan’sdispensationwhichhadtoldtheSCthatalldisplacedpersonshad
beenrehabilitated.TheCourthadthenaskedthemtoleavethesubmergencearea.
UNI

ance” in R&R works.
The MP government’s turnaround
has vindicated the Narmada Bachao An-
dolan whose leader, Medha Patkar, sat
on an indefinite fast there from August
25, demanding that the level of the dam
be immediately brought down by releas-
ing water and be kept at 122m till all
displaced persons were properly rehabil-
itated. Her fast ended on September 2
following the MP government’s concrete
assurance that her justified demand
would be taken up in all possible forums
for an amicable solution.
D
ispute between the two states
over filling the dam has been
going on since July this year
after MP minister for Narmada Valley
Development Surendra Baghel threat-
ened to stop release of Narmada waters
for the Sardar Sarovar Dam unless the
Gujarat government and the centre
addressed the concerns of the dam-
affected people.
Gujarat Chief Minister Vijay Rupani
reacted by asking MP not to politicise
24 October 14, 2019
the issue as both governments were
bound by the rulings of the Supreme
Court and the NCA. MP also raised the
issue of the displaced people with the
Gujarat chief secretary in a letter dated
May 27, 2019, saying that 6,000 families
were yet to be relocated.
MP is also unhappy because the state
is not getting its due share of electricity
from the project. The two hydel genera-
tion plants at the dam have a capacity of
1,450 MW, which is shared by MP (57
per cent), Maharashtra (27 percent) and
Gujarat (16 per cent).
The Kamal Nath government has
complained to NCA that Gujarat has
flouted the 40-year-old Narmada Water
Distribution Tribunal accord by denying
MP its share of the power generated by
the dam. In three letters to the NCA
chairman, MP Chief Secretary SR Mo-
hanty said that Gujarat neither supplied
power nor paid compensation as was
agreed in the accord. As a result, the MP
government was forced to spend an
additional `229 crore to purchase
power, the letters said.
Gujarat’s Deputy Chief Minister
Nitin Patel clarified that as no hydel
power was generated from the dam for
the last two years, sharing electricity
with MP was out of the question. The
Gujarat government contended that for
testing the gates of the Dam, it was
essential that it be filled to its optimum
level of 138.68m.
Even as the two states were sparring,
Patkar started her indefinite fast in
August to demand swift rehabilitation of
thousands affected by floods in areas
surrounding the Sardar Sarovar Dam.
She launched an agitation—the “Nar-
mada Chunauti Satyagraha”—at Chhota
Barda in MP’s Barwani district. Her
main demand was that authorities keep
the gates of the dam open until the re-
habilitation of 32,000 affected people in
the submergence area was complete.
Eight days after her fast began,
Kamal Nath appealed to her to give up
her agitation as the state was committed
to the rehabilitation of the villagers. He
said: “Madhya Pradesh will make all-out
efforts to open the dam gates.” He prom-
ised that the government would hold
camps in the villages of the Narmada
Valley and each and every claim for
rehabilitation would be taken care of.
Patkar ended her fast after discussions
with Kamal Nath's emissary, SC Behar.
However, Patkar’s agitation had no
impact on the Gujarat government
which went ahead with filling the dam
to its optimum level a month ahead of
schedule. Two days later, PM Modi cele-
brated his 69th birthday at the dam
which was filled to the brim. Later, Pat-
kar remarked that “thousands of lives of
poor people in the valley were put at
risk of inundation so that one man can
enjoy his birthday”.
Neither Gujarat nor MP is likely to
budge from its stand because both have
different parties ruling them. Now the
displaced persons have pinned their
hopes on the Supreme Court.
Supreme Court/ Sardar Sarovar Project
TheSupremeCourtbenchof
(clockwisefromaboveleft)Justices
NVRamana,AjayRastogiandBR
Gavaideferredhearingontheaffidavit
filedbytheMPgovernmentinthe
SardarSarovarProjectmattertill
October15.TheGujaratgovernment
couldnotpresentitsstandand
soughtmoretimetofileitsresponse
totheaffidavit.

NDIA EGALEEL STORIES THAT COUNT
` 100
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ARoyalChallengeAquestionasked“justoutofcuriosity”bytheSupremeCourthasledtoseveralpeoplestaking
claimtoLordRam’slineage.Theseclaimshavebrieflyovershadowedthelanddisputecasein
whichthelegalargumentshaveraisedsomeotherintriguingquestions.
PlusBookExtract:Canreligionbeseparatedfrompolitics?
J&K: Winning global
support
Real Estate: Amendments
to Insolvency Act
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tacklependency.Thebestoflegalmindsdiscussedhowtomakethemmorepopular
Legal Leadership Conclave
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September23, 2019
TheLegendLivesOnApoignanttributetothelateRamJethmalanibyasenioradvocatewhoknewhimwell
revealsexactlywhyhewassoreveredandrespected.Plus,anexplosiveinterviewhegave
toIndia Legalin2016.
Ayodhya Hearings:
Twists and turns
UK Crisis: 10
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veca
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` 100
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September30, 2019
Regulating
Online
ContentSomepetitionsbeforethe
SupremeCourtseeking
regulationofsocialmediahave
givenrisetoconcernsoverfree
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Resignations in
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J&K: Apex court’s
healing touch
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NDIA EGALEL STORIES THAT COUNT
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October7, 2019
RadicalReformTheSupremeCourt’sdecisiontocreateapermanentConstitutionBenchandsingle
benchesislongoverduebutquestionsremain.Ananalysis
Indore: The VIP
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Whistleblower Scandal:
Can Trump be impeached?
DIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EEE

Profile/ Judge Couple
26 October 14, 2019
LEVATION of six judicial
officers of the Punjab and
Haryana High Court to the
bench of the High Court was
supposed to be a routine
news item. Their names had
been recommended by the collegium of
the High Court headed by the chief jus-
tice, and in due process, the promotion
of six officers was also recommended by
the Supreme Court collegium.
But what stood out in these recom-
mendations was that among the six offi-
cers was a husband-wife duo who may
have created history by being the first
couple to get elevated to the High Court
on the same day. There had been several
cases of close relatives serving as judges
at the same time but one has not heard
of a couple taking oath at the same time
and serving in the same High Court.
The couple—Vivek Puri and Archana
Puri—are both Punjab Superior Judicial
Service Officers. While Vivek is posted
as district and sessions judge at Mohali
in Punjab, Archana is a presiding officer
at State Transport Appellate Tribunal
(Punjab) and Food Safety Appellate
Tribunal (Punjab).
Old timers and those who had rem-
ained closely associated with the judici-
ary over generations do not recall any
such instance in the past. Some vaguely
remember couples as judges but not
posted in the same High Court and cer-
tainly not taking oath together.
The two go a long way back when
both were selected to the Punjab Civil
Services (Judicial) in February 1991.
Obviously, they were batchmates in the
academy and remained posted in the
same place till two similar posts were
available in the same town or city.
They were both promoted as addi-
tional sessions judges in 2001 and dis-
trict and sessions judges a year later—
again on the same day and in the same
order. They, of course, remained district
and sessions judges in different districts.
Asked if they discussed cases being
heard by each other, Vivek said it was
natural but each one took independent
decisions and there was no question of
any interference in each other’s work.
Interestingly, both belong to judicial
families. Not only was Vivek’s father
and grandfather associated with legal
services, his son and daughter are also
practising lawyers. Similarly, Archana’s
father and grandfather as well as
several relatives are associated with
the judiciary.
Inaninterestingcaseinthe
PunjabandHaryanaHigh
Court,ahusbandandwife
areonthevergeofcreating
historyforbeingthefirst
coupletogetelevatedas
judgesonthesameday
By Vipin Pubby
in Chandigarh
Best of Both Worlds
NO CONFLICT OF INTEREST
The couple, Vivek and Archana Puri, who
have been elevated to the Punjab and
Haryana High Court (above) are both Punjab
Superior Judicial Service Officers
E

Senior advocate Manmohan Sarin,
who is a second generation lawyer prac-
tising in Punjab and Haryana High
Court, did not recall any instance of a
husband and wife serving as judges in
the High Court. He had moved to the
city way back in 1955 when his father
decided to shift from Shimla to practise
at the then Punjab High Court.
A former advocate general of Punjab
as well as Haryana, Sarin has been clo-
sely associated with the High Court,
which was renamed Punjab and Harya-
na High Court in 1966 following the
reorganisation of states.
He said there have been several ins-
tances of relatives being judges of High
Courts but never a husband and wife
together. However, he recalled that a
divorced couple had served as judges at
one point of time. The wife was elder to
her husband and retired several years
ago. Her former husband retired about
five years ago.
Another senior lawyer, who didn’t
want to be named, said he did not ex-
pect any conflict of interest with a mar-
ried couple serving as High Court judges
at the same time. He said both would be
equally senior if they are taking oath on
the same day.
However, as the husband’s name pre-
ceds that of his wife in this case as a
consequence of merit in the judicial
entrance examination, he would be con-
sidered senior if any issue crops up
relating to it. He opined that there was a
rare chance of both constituting a divi-
sion bench but it was possible that they
could be part of a larger bench of the
High Court.
A
former High Court judge, who
also did not want to be named,
said that as the couple had
known each other for about 29 years
and were posted in the same courts for
several years, they would have adjusted
to each other’s functioning. They might
be discussing cases at home just as other
judges discuss with their brother judges
in an informal way, but both would be
expected to exercise their own wisdom
to come to any conclusion.
He also said there was little scope of
any conflict of interest. The fact that the
couple has till now not had any such
instance is a testimony to their regard
for judicial propriety.
There have been instances of fathers
and sons becoming judges but none at the
same time. In recent times, former Chief
Justice of India Dipak Misra was the
of former Chief Justice of India
Ranganath Misra. Justice DY Chandr
achud of the SC is the son of former Chief
Justice of India YV Chandrachud (in fact,
the son has reversed some judgments
given by the father), former SC judge
Justice AK Sikri is the son of former Chief
Justice of India SM Sikri and SC judge
Justice KM Joseph is the son of former SC
judge KK Mathew.
However, while they served as judges
at different periods, they did not face a
situation where a husband and wife
would be together in the same High
Court. And unlike other higher judiciary
judges who address each other as broth-
er judges, the Puris will have to find
some other nomenclature for each other
as High Court judges.
Therehavebeeninstancesoffathersandsonsbecomingjudgesbutnoneatthesame
time.Inrecenttimes,(fromleft)formerCJIDipakMisraisthe offormerCJI
RanganathMisra,formerSCjudgeJusticeAKSikriisthesonofformerCJISMSikriand
JusticeDYChandrachudisthesonofformerCJIYVChandrachud,amongothers.
kractivist.org

al of impersonal and anonymous scruti-
ny, CBDT ordered the creation of a
National e-Assessment Centre (NeAC)
in Delhi. At a later stage, Regional e-
Assessment Centres (ReAC) are also
expected to be established. The NeAC
will have 16 officers and will be led by a
Principal Chief Commissioner of
Income Tax.
The centre will be an autonomous
organisation which will solely look after
e-assessment. Notices will be served to
the assessees by NeAC and the reasons
for selecting them will be stipulated.
Within 15 days of the receipt, cases will
be allocated to the assessing official by
an automated system. Nevertheless,
assessees or their permitted representa-
tives who are desirous of a personal
hearing can get one. Such hearings shall
Commerce/ e-Assessment of Income Tax
28 October 14, 2019
be conducted exclusively through
video conferencing.
The primary advantage of e-assess-
ment is that it saves time. The scheme
exempts the individual from travelling
to the Income Tax Office and wasting a
few hours to meet the tax officer. Even if
the person is out of town, he can react
to the notices. Moreover, the taxpayer
will no longer be a victim of probable
exploitation by an officer who threatens
to make additions to the income unless
he pays up. This is a big relief for
sincere taxpayers.
Abhishek Soni, Founder & CEO,
tax2win.in, an ITR filing website,
reportedly said: “The new scheme noti-
fied by the Central Board of Direct Taxes
SSESSING income tax
returns seems to have got
a lot easier with a govern-
ment notification of a new
e-assessment scheme.
This is part of its attempts
to erase corruption by eliminating hu-
man interaction in the assessment.
However, personal representation is per-
mitted in certain circumstances, namely,
petitions against the assessment.
Union Finance Minister Nirmala
Sitharaman said the e-assessment plan
would be formally rolled out on October
8 when Vijayadashami will be celebrat-
ed. In 2017, while speaking at a seminar
of senior tax officials, the prime minister
had urged the need for e-assessment in
income tax proceedings and secrecy of
procedures by utilising information
technology.
While presenting the Union Budget
2019, Sitharaman said that “the existing
system of Income Tax scrutiny assess-
ments involves a high-level personal
interaction between the taxpayer and
the department, which leads to certain
undesirable practices on the part of tax
officials. To eliminate such instances
and to give shape to the vision of the
prime minister, a scheme of faceless
assessment in electronic mode involving
no human interface is being launched
this year in a phased manner. To start
with, such e-assessments shall be
carried out in cases requiring verifica-
tion of certain specified transactions
or discrepancies”.
To support the government’s propos-
A
OnOctober8,thecentrewillrolloutanambitious
e-assessmentschemeforcollectingtaxtoreduce
corruptionandbringinsecrecyinprocedures.Butfirst,
operationalhindranceswillhavetobeaddressed
By Shivanand Pandit
Boon or Bane?
FinanceMinisterNirmalaSitharaman
saidthat“theexistingsystemofIncome
Taxscrutinyassessments....leads
tocertainundesirablepractices
onthepartoftaxofficials”.

will change the way ITR will be scruti-
nised. Earlier, it was scrutinised by the
assessing officer of the individual tax-
payer through an online process.
However, the new scheme will not only
make the assessment faceless but you
will also not have to meet any assessing
officer during the proceeding period.
Your ITR will be scrutinised through a
computerised randomly selected
regional unit which will be set up under
the scheme.”
Some of the notable provisions of the
scheme are:
Scrutiny notice will be issued to the
individual under Section 143(2) of the
Income Tax Act if he has concealed or
understated his income or over-reported
losses and deficits
The notice will be sent in electronic
mode to the individual’s account on the
Income Tax e-filing website. It will also
be sent to the registered email address
of the individual or on the mobile app of
the Income Tax department which has
the registered mobile number
Within 15 days of the receipt of the
notice, the individual will have to
respond to it through the registered
account. After he receives an acknowl-
edgement from the NeAC, the response
will be treated as effectively submitted
All communication will be executed
electronically, including internal com-
munication within the Income Tax
department
The scheme will be fully automated
and the NeAC can allot the scrutiny case
to any ReAC through a computerised
allocation system. If that Centre needs
assistance from the verification unit or
the technical unit, such requests will be
processed through a computerised allo-
cation system
If the Regional Assessment Unit wants
further information or documents from
the individual, such a request has to be
made first to the NeAC
The draft assessment order will be
prepared by the ReAC and submitted to
the NeAC. This centre will then scruti-
nise the draft received in accordance
with the risk management strategy pre-
scribed by the CBDT.
Amitava Sen

However, there is a dark side to the
scheme. Invariably, the scheme calls for
much documentary evidence such as
property sale and purchase agreements,
bank statements, balance confirmations,
etc, during the hearing procedures.
These need to be submitted electronical-
ly. However, the capacity of the site
where documents are uploaded is res-
tricted while the size of the soft copy of
many documents surpasses this limit.
F
urthermore, due to lack of experi-
ence in the private sector, many
officials who worked only in the
Income Tax department are not in a
position to comprehend commercial
transactions and the reasons for a trans-
action being structured in a specific
fashion. This will prompt them to make
undesirable additions to the income
reported on the Income Tax return.
However, during the course of personal
interaction, commercial validation of
the transaction can be elucidated and
the doubts of tax officers cleared.
Rishi Kapadia, partner, Dhruva
Advisors LLP, reportedly said: “Both the
taxpayers and the tax department will
30 October 14, 2019
need to gear up their systems to adapt to
the scheme. Personal representation by
a taxpayer will be allowed only through
video conferencing. Considering that
there is a limited window of interaction,
taxpayers will need to focus on submit-
ting detailed documentation to explain a
tax position.”
Sandeep Jhunjhunwala, director,
Nangia Advisors, Andersen Global,
warned that though this system was
aimed at easing the process of assess-
ment for taxpayers, multiple nodal bod-
ies set up to facilitate e-assessments
could initially make the scheme and
procedures complicated for a common
taxpayer. “Interestingly, as a fail-safe
practice, the scheme provides for an
option to transfer the case to the juris-
dictional assessing officer at any stage of
assessment,” he reportedly said.
SR Patnaik, partner and head (taxa-
tion), Cyril Amarchand Mangaldas, felt
that a face-to-face meeting between the
taxpayer and authorities was needed,
especially where the latter needs clarifi-
cations on the basis of information
made and the taxpayer is willing to pro-
vide it. “One option could be to have a
few individual officers who are manag-
ing such consoles which can seek
clarifications and forward them to the
departments concerned without
divulging the details about the taxpayer,”
he suggested.
Therefore, to make the scheme effec-
tual, operational hindrances have to be
addressed to avoid injustice to the tax-
payers. The space limit for uploading
documents has to be enhanced. Proper
training has to be given to officers
regarding trade practices and proce-
dures in order to understand commer-
cial activities thoroughly. It is only then
that the e-assessment scheme will live
up to its true potential and become a
win-win situation for both the tax
department and taxpayers. Otherwise,
the government’s ambitious plan will
take a beating.
—The writer is a financial adviser,
tax specialist and public speaker
based in Margao, Goa
Commerce/ e-Assessment of Income Tax
“Theschemewillnotonly
maketheassessment
facelessbutyouwillalso
nothavetomeetany
assessingofficerduringthe
proceedingperiod.”
—AbhishekSoni,
founder&CEO,tax2win.in,
anITRfilingwebsite
“Boththetaxpayers
andaswellasthetax
departmentwillneed
togearuptheir
systemstoadapt
tothescheme.”
—RishiKapadia,
partner,Dhruva
AdvisorsLLP
“Aface-to-facemeeting
betweenthetaxpayer
andtheauthoritieswas
needed,especially
wherethelatterneeds
clarifications.”
—SRPatnaik,partner
andhead(taxation),
CyrilAmarchandMangaldas
“Interestingly,asafail-safe
practice,theschemepro-
videsforanoptiontotrans-
ferthecasetothejurisdic-
tionalassessingofficerat
anystageofassessment.”
—SandeepJhunjhunwala,
director,NangiaAdvisors,
AndersenGlobal

Security/ Aerial Surveillance
N September 14 at around
2 am, a swarm of low-fly-
ing drones, allegedly oper-
ated by Houthi rebels in
Yemen, ducked the highly
sophisticated Saudi-US air
defence radar network of Patriot III and
THAAD systems. They struck at Abqaiq,
the world’s largest oil processing facility
and Khurais, Saudi Arabia’s second
largest oilfield. Saudi oil production fell
by 5.7 mn barrels a day from 9.8 mn
barrels a day, the largest disruption to
the oil market by a terrorist attack.
Apparently, the drones were rudi-
mentary and inexpensive and cleverly
wired to wreak havoc and disruption.
Just think about it. This happened
despite such an attack having been sim-
ulated in February 2012 at the Inter-
disciplinary Centre, Herzliya, Israel,
with counter-measures worked out. The
ripples of the stunning success of the
Iran-backed Houthi rebel attacks have
shaken the Middle East and the rest of
the oil-producing world. They will
undoubtedly raise their anti-drone/mis-
sile safety net with an expensive array of
defensive systems such as the Russian S-
400. What is obviously needed is an ear-
ly warning and surveillance air defence
network to destroy low-flying drones.
In India, commercial drones com-
pletely surprised the Punjab police, BSF,
Army and IAF air defence systems
between September 9-16. At least four
Chinese commercial drones were able to
infiltrate across the border near Tarn
Taran and execute eight to 10 sorties ov-
er eight days. Just think about it. The
third largest army in the world and the
second largest police and paramilitary
force were caught napping till module
members of the Khalistan Zindabad
Force (KZF) were arrested and led the
Punjab police to a cache of military
stores and the crash site of one of the
disabled drones.
An extremely grave breach of
The Age of Drones
TheinfiltrationofChinesedronesintoPunjabshowsseriousgapsinIndia’s
aerialdefences.Futureconflictwillshiftfromhigh-costmilitarygrade
UAVstoswarmsofunmannedaerialsystems
By Maj Gen Ashok Mehta
O
SECURITY BREACH
Last month, Chinese-made GPS-enabled
drones, carrying military stores, infiltrated
across the border near Tarn Taran in Punjab
Representative Image: skytango.com

Security/ Aerial Surveillance
32 October 14, 2019
aerial security on the Pakistan-Punjab
border was fortuitously discovered
through the Punjab police capturing
KZF module members who were to
receive the weapons consignment and
smuggle it into J&K following the abro-
gation of Article 370.
The modus operandi of the Pakistan
ISI-masterminded operation was some-
thing like this: The Chinese-made GPS-
enabled drones, weighing approximately
10 kg each with the capacity to carry 5
to 10 kg payloads, were operated
between 2 am and 3 am from 2 km
inside Pakistan, flying at 2,000 feet for a
distance of 5 km and descending to
1,200 feet to drop the payload near Tarn
Taran. The last of the seven or eight sor-
ties apparently crashed and its debris,
especially the Chinese batteries, had to
be destroyed by KZF. Each sortie took
an hour and delivered military equip-
ment and stores. These were five AK-47
rifles, four X.30 pistols, 19 grenades,
1,000 rounds of ammunition, five
Thuraya satellite phones and `10 lakh
counterfeit Indian currency.
The Pakistan-supported KZF, based
in Germany, is well-oiled and trained by
ISI terrorist groups. Four to five mem-
bers of the module were arrested by
Punjab police on September 22 and led
them to the weapons cache and to the
canal near Dhode village where the
drone parts were dumped. Punjab Chief
Minister Capt Amrinder Singh, a 1965
war veteran, was quick to raise the
alarm and described the intrusions as “a
new and serious dimension to Pakistan’s
sinister design” in the aftermath of neu-
tralising Article 370.
T
here are conflicting reports about
whether one drone crashed or
two, and whether the drones
were landed or emptied their payload
from the air. The module included Baba
Balwant Singh, Akshdeep Singh,
Harbhajan Singh and Balbir Singh. The
National Investigative Agency, which
joined the probe, will examine every
aspect of the incursions and evolve
counter-measures along with military
agencies as Kashmir is bound to be a
long haul with Pakistan making it much
more than its traditional attacking the
“jugular vein” of the past. Rather, it will
be a do or die mission.
It is not surprising that the offending
drone was made in China. Beijing is the
world leader in drone manufacture with
the state-owned China Electronics
Technology Group Corporation recently
launching a record-breaking 119 drones
in mission formation. The breakthrough
was not merely in numbers, it was about
“swarm intelligence”—the integration of
multiple low technology drones with
smart sensors and artificial intelligence.
Future conflict will be asymmetric,
shifting from high-cost military grade
Unarmed Aerial Vehicles (UAVs) to
multi-unmanned aerial system swarms
to subdue enemy defences. Drones fitted
with assortments of armed systems and
jamming devices will be the game-
changers.
Besides China, the US and Israel are
high-tech top-of-the-line drone produc-
ers. China’s arsenal of 2,000 military
drones is growing. Swarms of drones ha-
ve no counter-measures and are unsur-
passable in terms of cost and efficiency.
Miniature kamikaze drones to kill sui-
cide bombers on the LoC in Kashmir or
in the hinterland will be the ultimate
deterrent in counter-insurgency.
India has acquired Israeli Searchers,
Herons, Herpys and Harpos unarmed
military drones which are expensive. In
2005, India signed a contract with
Israel for supply of armed drones, but its
delivery never materialised due to possi-
TIGHT VIGIL
BSF jawans at the Attari
international border
UNI

ble US intervention.
Indian military planners should con-
sider weaponising low-cost commercial
drones even as swarms of Chinese aerial
sentries may be deployed across the
LAC in the north against China. India
has no armed drones as yet. Last year,
the US cleared the contract for 22 Sea
Guardian unmanned and unarmed aer-
ial systems for $2 billion. Sea Guardian
is the naval version of the legendary
Predator B armed drone (MQ 9
Reaper) which the US uses to target
terrorists in Afghanistan, Pakistan and
Yemen. India is the only non-
NATO/major defence partner to be sold
the Sea Guardian which is covered as a
Category 1 system under the Missile
Technology Control Regime. India’s
own Remotely Piloted Vehicle System
programme is in its infancy. Rustom II
is an indigenous programme which has
yet to take off.
T
he US drone strike programme in
Pakistan, which started in 2004,
has killed 2,714 and wounded
3,000 terrorists till mid-2018. Altoge-
ther, 400 armed drone strikes were
mounted with the maximum conducted
between 2008 and 2012. After mid-
2018, the US stopped releasing data on
drone strikes in Pakistan, though several
attacks have been executed.
The use of stand-off attack systems—
its moral and legal dilemma—is brought
out in a Hollywood film called Good Kill
and a British film, Eye in the Sky. Both
highlight the collateral damage of civil-
ian casualties while targeting identified
terrorists. US field commanders have
had to, at times, provide certificates that
there will be no civilian casualties dur-
ing projected drone strikes and/or that
the risk of civilian casualties is propor-
tional to benefits from the armed strike.
From the events of the last month
when Chinese commercial drones carry-
ing military stores were able to fly in
and out of our border areas in Punjab
with virtual impunity, it is apparent that
there are serious gaps in our aerial def-
ences. But for the capture of Khalistani
terrorists, great damage could have been
inflicted in Kashmir. Investment in cou-
nter-drone systems, especially at a low
level, is necessary not just along the
Punjab border but other parts of the
international border and LoC. Once a
rogue drone has been spotted, it has to
be disabled and safely forced down,
preferably with a soft kill using signal
jamming which can force it to land or be
seized by remote control.
The Purulia airdrop in 2007 by Kim
Davy and other mercenaries led to fear,
panic and concern about the breach of
Indian airspace. It had other major
strategic repercussions through supply
of weapons to insurgents in the region.
The drone dropping/landings near Tarn
Taran in Punjab has exposed lacunae in
low-level air defence systems and Paki-
stan’s desperation to aid and abet vio-
lence in Kashmir at a time when alien-
ation in the Valley has turned to resent-
ment and has the potential to explode
once the lockdown is lifted. Pakistan
will not stop trying to infiltrate men and
materials across the border.
The J&K police operates two dozen
surveillance drones. Earlier, the police
used to depend on army drones. As cur-
few-like restrictions were imposed in
Kashmir, police forces have been using
helicopters and UAVs to monitor the sit-
uation and alert the control room about
protests and other law and order inci-
dents. The J&K administration has deci-
ded to buy another 50 UAVs.
Drones will be the new eyes and ears
of the security forces even as Pakistan
will attempt to outwit them to gain the
upper hand.
—The writer has fought in all the wars
after 1947 and was Commander of the
IPKF (South) in Sri Lanka
TheUSclearedthedealfor22SeaGuar-
diandronestoIndia,theonlynon-NATO/
majordefencepartnertobesoldthesys-
temthat’scoveredinCategory1under
theMissileTechnologyControlRegime.
SECURITY UPGRADED
Jammu-Kashmir Police hold a demonstration
of an unmanned drone in Srinagar
UNI

Global Trends/ Bangladesh/ Sheikh Mujibur Rahman
34 October 14, 2019
ROM mid-October, courts in
Bangladesh will display port-
raits of the Bangabandhu, Shei-
kh Mujibur Rahman. This fol-
lowed a writ petition by a sen-
ior Hindu lawyer, Subir Nandi Das, to
Dhaka High Court asking that all gov-
ernment offices, including courts, dis-
play the father of the nation’s portrait.
In 2001, when Sheikh Hasina Wajed
was in power, the government enacted
legislation making it mandatory for all
government offices to display a portrait
of the Bangabandhu. This was done to
remind people of his great contribution
in the creation of Bangladesh. But in
2003 when a new government was
formed with Khaleda Zia as PM, this
legislation was repealed. “It was petty
politics and the contribution of
Bangabandhu was forgotten. I was hurt
by this and decided to restore Mujib’s
glory,” said Das.
Das stated that Article 4(A) of Bang-
ladesh’s Constitution states: “The por-
trait of the Father of the Nation, Banga-
bandhu Sheikh Mujibur Rahman, shall
be preserved and displayed at the offices
of the President, the Prime Minister, the
Speaker and the Chief Justice and in
head and branch offices of all govern-
ment and semi-government offices, au-
tonomous bodies, statutory public au-
thorities, government and non-govern-
ment educational institutions, embassies
and missions of Bangladesh abroad.”
But government offices were not follow-
ing this.
A bench of Justices FRM Nazmul
Ahsan and KM Kamrul Kader of the
High Court passed the order and asked
authorities why their inaction to pre-
serve and display the por-
trait of Bangabandhu in
courtrooms should not be
deemed illegal. They also
asked the concerned pub-
lic agencies to file a
progress report on the
implementation of the order. “There are
many examples of countries displaying
the portraits of their founding fathers or
national heroes at courtrooms, including
India, Pakistan and America; though
our constitution has made it mandatory
to display Bangabandhu's portrait at
courtrooms, they are not complying
with the provision. We challenged that.”
The Court gave the authorities two
months to carry out the order.
The Bangladesh Supreme Court (SC)
Registrar General Dr Md Zakir Hossain
told India Legal that the SC administra-
tion has already collected around 100
portraits of Bangabandhu following the
HC directive. They will be displayed and
preserved in the courtrooms of the App-
ellate Division and High Court division
of the SC before it reopens on October
13, he said. Lower courts had already
started displaying Bangabandhu’s por-
traits, he said. “Bangladesh is perhaps
the only country that has a constitution-
al provision in the name of a person,
Bangabandhu. It’s a great honour to the
individual who created Bangladesh and
later became a martyr,” he said.
Neither India nor Pakistan, responsi-
ble for the creation of Bangladesh in
1971, has constitutional provisions to
display the portraits of Mahatma Gan-
dhi or Mohammed Ali Jinnah, respec-
tively. In 2012, in response to an RTI
from Lucknow-based student Aishwarya
Parashar, the home ministry said no ac-
tion was taken on her plea to the presi-
dent to declare Mahatma Gandhi the
Father of the Nation as the Constitution
does not permit any titles except educa-
tional and military ones.
In India, there have been ugly episo-
des over portraits of leaders of neigh-
bouring countries. In April 2019, BJP
MP from Aligarh Satish Gautam said he
would ensure that Jinnah's portrait in
AMU is sent to Pakistan. He wrote to
the V-C of AMU seeking the removal of
the picture. Violence broke out after a
right-wing protest.
There is much ado about portraits.
ApleaintheDhakaHighCourthasforcedcourtsand
governmentofficestodisplaythefatherofthe
nation’sportrait
By Prakash Bhandari in Dhaka
TheLargerPicture
F MUTUAL RESPECT
Sheikh Mujibur Rahman with then Prime
Minister of India Indira Gandhi
PetitionerSubir
NandiDassaidhe
washurtbyKhaleda
Zia’sdecisionto
repealthelegislation
ondisplaying
Rahman’sportraitin
governmentoffices.
mofa.gov.bd

Global Trends/ United States
single day—October 2,
2019—showed how strange
and bewildering the im-
peachment process is be-
coming for US President
Donald Trump, for the Congress, for
the people of the US, and in fact, for an
entire world left wondering about the
American political system and its elect-
ed leader.
The morning started with House
Speaker Nancy Pelosi threatening the
White House with subpoenas if they do
not turn over requested documents.
There were also allegations about
Secretary of State Mike Pompeo bully-
ing State Department officials and
refusing to comply with subpoenas
issued for them. When Pompeo was in
Congress, he mercilessly bullied witness-
es in the Benghazi probe years ago.
Pelosi and House Intelligence Chair-
man Adam Schiff objected to Trump’s
attacks on the Democrats’ impeachment
inquiry. Trump took to Twitter with pro-
fanity, writing they are “wasting every-
one’s time and energy on BULLSHIT”,
even calling the former a lowlife. It got
even stranger later in the day when
Trump’s joint news conference with the
visiting president of Finland, Sauli
Niinistö, resembled a Saturday Night
Live comedy sketch.
Trump claimed, without any factual
basis, that Schiff, whom he called
“shifty”, had helped write the whistle-
blower complaint. The New York Times
had reported a day earlier that the whi-
stleblower had sought advice from the
committee’s lawyers worried that his
complaint was being buried by the
White House. Trump’s wildly unsub-
stantiated claims were followed by him
indicating that he plans to personally
sue people involved in the special coun-
sel’s investigation into Russian interfer-
ence in the 2016 election.
It got even more manic. Trump again
claimed he was a stable genius and that
the transcript of his conversation with
Ukraine’s president, Volodymyr Zelens-
ky, was accurate, even though the very
first page said it was not a transcript but
a mere recreation of the call. In that call,
Trump had pressured Zelensky to inves-
tigate former Vice-President Joe Biden,
a potential Democrat opponent in the
2020 campaign, in lieu of the $400 mil-
lion worth of military assistance he was
withholding to Ukraine.
All of this demonstrates Trump’s
inability to learn and its dangerous con-
sequences. His refusal to accept the
truth about Ukrainian hacking (which
did not happen) arose from his refusal
to accept the truth about Russian hack-
ing (which did happen).
There are multiple threads to the
impeachment story as well as the appar-
ent effort by the White House to find a
way to discredit the Russian interfer-
ence charges contained in the Mueller
special probe. The US Attorney General
has been travelling the globe apparently
seeking intelligence officials who might
help prove Trump’s point that there was
no Russian interference in 2016.
Nick Akerman, a former special
prosecutor on the Watergate impeach-
ment that forced President Nixon to
resign in 1974, said, “The idea of an
attorney general running around and
doing this stuff is absurd. That is not
what an attorney general does.” Water-
gate-era Attorney General John Mitchell
served 19 months in prison for obstruc-
tion and perjury charges. More recently,
George Bush’s attorney general, Alberto
Gonzales, was also forced to resign.
There have been other leaders who
have acted strangely but none as strange
as Trump. He had been a TV reality
show personality before becoming the
president. It certainly impacts the ability
of the government to govern, but maybe
that is the desired effect.
Ononeofhismostbizarredaysin
office,PresidentDonaldTrumpgot
mean,profaneandbelligerentover
hispossibleimpeachment
By Kenneth Tiven
in Washington
Trump
GoesBallistic
A
ART OF DIVERSION
Trump said that House Intelligence Chairman
Adam Schiff (right) had written the whistle-
blower complaint on the Ukraine controversy
UNI

Focus/ Ban on E-Cigarettes
36 October 14, 2019
RNAB Pratim Dutta tried
switching to e-cigarettes
when India was waking
up to this seemingly
healthier alternative. “I
wanted to cut down on
my smoking, which had gone up to as
many as 10 cigarettes per day, so I went
online and ordered myself an e-cigare-
tte,” confessed Dutta, a journalist. That
was in 2011. But the experiment did not
last long and Dutta was back to smoking
regular cigarettes. “Apart from the me-
ssy (leaked cartridge, burnt lips) smok-
ing experience, I felt that the urge of
smoking had increased. The only posi-
tive thing was that I could use e-ciga-
rettes even at my desk without anyone
objecting to it and it seemed to be a
healthier option.”
Not anymore. On September 18,
2019, the central government promul-
gated The Prohibition of Electronic Ci-
garettes (Production, Manufacture, Im-
port, Export, Transport, Sale, Distribu-
tion, Storage and Advertisement) Ordi-
nance, 2019. Calling it an illegal drug,
the Ordinance aims at a blanket ban on
Electronic Nicotine Delivery Systems
(ENDS) devices. Violation of any of
these rules will invite a fine of up to `1
lakh for first-time offenders. For repeat
offenders, the fine can reach `5 lakh
coupled with a jail term of three years.
Storage of e-cigarettes can lead to six
months of jail or `50,000 fine or both.
With this ordinance, India has joined
Australia, Singapore, South Korea,
Thailand and Mauritius which have also
banned these devices.
Tobacco is one of the largest killers,
taking more than one million lives each
year in India. It contains nicotine—a
highly addictive component and the
main cause of health hazards. Hence
governments across the world have pro-
hibited smoking at public spaces. This
has led smokers to take to vaping, which
is increasingly popular in India. The
ENDS market in India is currently esti-
mated at `15 crore. Though a relatively
Thecentre’sdecisionhasbecomehighlycontroversialwithpetitionsagainsttheban
orderreachingthecourtsandsharesofthreetobaccocompaniesshootingup
By Papia Samajdar
Stubbed
Out
A
UNI

India legal - October 14, 2019

India legal - October 14, 2019

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