THE DIGITAL DIVIDE Indian courts are getting digitised but there are hiccups on the way—slow conversion of case records, red tape, incompetently executed renovations, clients who aren’t tech savvy...

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June11, 2018
Interview Santosh Hegde: “To end
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3. N June 1, 2018, a day after the BJP
received a political drubbing in the
bypolls across India, The Indian
Express carried two headlines on its
first page: “Opposition Parties Take 11
of 14 Assembly and Lok Sabha Seats.” Side by side,
it ran a feel-good headline for the ruling party:
“Good Rabi Crop, Uptick in Factory Output Lift
GDP up to 7.7 Per Cent.”
Does it make any sense? The economy growing
at about the fastest rate in the world, while the
government receives a simultaneous thrashing at
the hands of voters in what could be a prelude to
the 2019 general elections? In Kairana, UP, which
had become the riot-torn crucible for vote-catch-
ing Hindu-Muslim politics following bloody com-
munal clashes and a religion-based exodus of pop-
ulation that swept the BJP and its majoritarian
sabre-rattlers into power, “Jats and Muslims
stepped over riot faultlines to vote together”, the
Express said.
Actually, this is an example of why statistics
should be damned, and political parties should be
careful of using “surging” GDP and related feel-
good econometrics of the kind regurgitated by the
likes of Surjit Bhalla as vote-catching electoral
propaganda. It just doesn’t work.
When a voter is unemployed, his pockets
empty, jobs shrinking, diesel and petrol prices sky-
rocketing, mandis in distress, prices soaring, GST
raising the cost of anything you touch, markets
shrinking, uncountable jobs sacrificed at the altar
of economic adventurism like demonetisation
which failed to distinguish between a “black econ-
omy” and a cash-based economy, he’s going to
punch you right in the nose when you tell him you
stand for the farmer and the working man.
He will see though this and dismiss your sta-
tistical grandstanding as b…s…. Columnist and
editor Dilip Bobb is no economist. But in a
satire piece he wrote for this magazine over a
year ago, he observed: “Jaitley and Economy:
He is finance minister, so Arun Jaitley and the
economy would have a valid connection but the
twin strikes of demonetisation and GST have put
him in the dock and the former legal eagle now
resembles a lame duck. ‘It’s the economy stupid’
is a phrase that could haunt him forever.” Bingo!
This was many, many months before the
unprecedented march of nearly one lakh farmers
from all parts of rural Maharashtra to Mumbai
to demonstrate their growing economic misery.
Couldn’t the government sense a massive crisis
was at hand and address that head-on instead of
talking bullet trains and sea planes and “collu-
sion with Pakistan”?
According to Sujan Hajra, chief economist at
Anand Rathi, a financial analysis firm, India has
one of the world's highest food spoilage rates; one
of the world’s lowest per capita productivities and
farmer incomes; poor rural roads affecting timely
supply of inputs and transfer of outputs; inade-
quate irrigation systems; poor seed quality and
inefficient farming practices and harvest spoilage
causing over 30 percent of wastage; lack of organ-
ised retail and competing buyers.
Maharashtra’s brother farmers in UP had simi-
lar grievances about returns on investment, loans
they couldn’t pay back, inadequate support prices,
unrequited money from the sales of their cane,
suicides, their kids dying in hospitals because of
lack of oxygen… but their Executive Yogi was off in
Karnataka preaching Hinduism-in-danger and
down-with-Jinnah-portraits.
G
lib national TV commentators and their
talk show guests have suddenly awoken to
what they called “farmers’ issues” as being
important to the elections. The wisdom of
morons! Like the economy, it IS the farmers.
Stupid! Their “distress” is the country’s distress—
yours and mine. These folks are not just another
wrapped item in your shopping basket of goodies.
They ARE the issue, and they are the force that
combined under common banners cutting across
caste and religious divides in the recent bypolls to
give the ruling party the middle finger.
Farmers are part of India’s large unorganised
A PUNCH IN THE SNOUT
Inderjit Badhwar
Letter from the Editor
O
ProfArunKumar
bemoansthefact
that“political
partiesare
nowbereftof
ideologyor
principles—the
aimistogetto
powertoserve
thevested
interestswho
fundthem”.
| INDIA LEGAL | June 11, 2018 3

4. sector. (There is abysmally low productivity in the
farm quarter—50 percent workforce and just 16
percent GDP.) As Prof Arun Kumar, one of India’s
best known international economists, notes, this
(total unorganised sector) is 93 percent of total
employment and 45 percent of total output. Data
for this sector is not available in the routine because
it is dispersed across the length and breadth of the
country in tens of millions of small and cottage
units which do not report their data to any agency.
The largest component of the unorganised sector is
agriculture constituting 45 percent of the workforce
and 14 percent of the total output of the economy.
Data for agriculture is collected for each of the
growing seasons and becomes available with a short
time lag, but it is not collected for each quarter.
The non-agriculture part of the unorganised sec-
tor constitutes 48 percent of the workforce and
31 percent of the total output. It is the data for
this part that is not available for some years, Prof
Kumar explains.
And here comes the rub. The gloating GDP fig-
ures (I quoted the latest at the beginning of this
essay) are misleading. They cannot reflect ground
reality or sentiment. The government carries out
surveys periodically for each component of the
unorganised sector like trade, manufacturing and
finance. Thus, this data is not available either for
each quarter or for each year.
Says Prof Kumar: “For the period after Novem-
ber 8, 2016, due to the two shocks—demonetisation
and GST—the ratio calculated earlier was no longer
valid. Fresh surveys were required to capture the
impact. Since no surveys were carried out either
post November 8, 2016, nor after July 1, 2017, one
can safely argue that the data used for quarterly
growth of the economy is not capturing the shock
experienced by the unorganised sector. A rough cal-
culation based on scattered evidence suggests that
the current rate of growth of the economy is less
than 1 percent and not 6.3 percent.
A
lmost immediately after Prime Minister
Modi announced the demonetisation of
`500 and `1,000 notes on November 8,
2016, I carried an exclusive interview with Prof
Arun Kumar, the noted author and international
economist who is considered one of the world’s
leading authorities on the impact and generation of
black money. Kumar predicted that not only was
demonetisation the wrong way of tackling tax eva-
sion and recovering wealth, but also that the move
would have adverse political consequences for Modi
because the poor would be the worst sufferers. He
called it a “foolish” step. The India Legal story went
viral. It also generated a chorus of trolls against crit-
ics of the Modi initiative who were labeled as sup-
porters of tax evaders and money launderers.
Immediate political results of the psychodrama
seemed to favour Modi, specially in the Uttar
Pradesh state elections. Initially, it was a brilliant
political move in which, notwithstanding their suf-
fering, the afflicted saw their torment as a tempo-
rary hardship inflicted on them by a Robin Hood
figure who was punishing the rich to reward the
poor, even if it meant waiting a while.
But can good politics overcome the long-term
impact of poor economics? There’s a saying in the
media world that, for commercial profits, if you per-
form for your advertisers, your readers/viewers will
desert you. And when they desert you, your adver-
tisers, who also want audience maximisation, too
will desert you.
Initially, Modi won the throw of the dice. The
courts did not interfere. Political opposition was vir-
tually nonexistent. His party’s obvious preference for
social and cultural transformation over economic
reform and modernisation has paid political divi-
dends. But for how long? His constituency is not
very different from Indians who did not support
4 June 11, 2018
Letter from the Editor
Farmersare
partofIndia’s
largeunorganised
sector.Thereis
abysmallylow
productivity
inthefarm
quarter—50
percentwork-
forceandjust16
percentGDP.
Photos: UNI

5. | INDIA LEGAL | June 11, 2018 5
him. The expectation of enhanced prosperity—the
acche din pledge—still rings in all ears. If you create
a good slogan you could well wind up being hoisted
on your own petard. Catchy slogans, as all spin doc-
tors will tell you, are a double-edged sword. People
don’t forget them.
And the early chickens seem to be coming home
to roost. The propaganda benefits of notebandi have
lived their shelf life. The biggest dividend was UP.
What counts now, as the euphoria wanes, following
Karnataka, the crystallisation of a viable political
opposition and the recent nationwide bypolls, is the
ground reality and the longer-term economic conse-
quences. Manufacturing and construction have
slumped. Private investments in new projects are at
a standstill. While gross domestic product (GDP)
growth was 6.1 percent, gross value added (GVA)
growth—a metric that more economists now favor
as it excludes indirect tax collection—slowed even
more sharply in the fourth quarter to 5.6 percent,
compared to 6.7 percent in the third quarter, says
another recent study.
These figures have not been conjured up by pro-
pagandists. These are the latest figures from no less
a source than the Central Statistics Office which
the prime minister and his team can scarcely afford
to ignore.
A
nd will Prof Arun Kumar have the last
laugh on demonetisation? He insists that
demonetisation has not only not dented the
black economy, but has damaged the white econo-
my, especially the unorganised sectors.
Add to these problems the thoughtless way in
which the hastily drafted cattle-trading ban is being
imposed and the government may be taking a swipe
at one of the largest sectors of the economy of the
poor. As Down To Earth puts it:
“Forget about the loss of revenue from exporting
buffalo meat after government’s ban on procuring
animals from market place for slaughter, the real
impact will be on India’s poorest farmers and the
economy of livestock which is worth more than `3
lakh crore. It is all set to kill an economy that India’s
small and marginal farmers switched over to as
adaptation to uncertain monsoon and dwindling
income from regular crops.”
Arun Kumar bemoans the fact that “political
parties are now bereft of ideology or principles—the
aim is to get to power to serve the vested interests
who fund them. Businessmen are scared of the gov-
ernment and do not wish to be seen as opposed to
it. With the changes introduced in the recent
Budget, the fear of a raid raj has only grown. The
media has been adversely impacted”.
The critical decision Modi will have to make—
and make very soon—is how far can he stretch the
Cultural Raj at the expense of real economic growth
in order to avoid the possibility of a popular back-
lash if acche din remains a chimera.
And herein lies a lesson for Modi’s opponents on
the Right as well as the Left not to exult in haste in
the celebration of the end of the Modi honeymoon.
It is far from over. But there is a lot he has not
done. He has NOT: cleaned up the Ganga;
restored 8 percent GDP growth; created 3 crore
jobs as promised (instead unemployment is soaring
in a phenomenon called “jobless growth”) intro-
duced judicial reform; ended the rape and subjuga-
tion of women; rebuilt our cities or renewed urban
India; accelerated farm production; introduced
meaningful tax reform; introduced disinvestment
plans; revamped Air India; cut down the bureau-
cracy; shut down terrorist camps in Pakistan,
attracted make-in-India investment.
He would be courting national disaster and his-
torical condemnation if he were to allow anything
similar to the Gujarat communal riots happen again
in India during his term. The test of his leadership
as a no-nonsense pragmatist will lie in his political
dexterity in sidelining the forces—including retro-
grade “Hinduism”—which interfere with his larger
development vision. The alternative is to fester in
the opprobrium of 2002.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
ProfArunKumar
insiststhat
demonetisation
hasnotonlynot
dentedtheblack
economy,but
hasdamagedthe
whiteeconomy,
especiallythe
unorganised
sectors.

6. ContentsVOLUME XI ISSUE 30
JUNE11,2018
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6 June 11, 2018
Courting Digitisation
Indian courts are going online but there are hiccups along the way—slow conversion of case
records, red tape, incompetently executed renovations, clients who aren’t tech savvy
LEAD
14
“Poor Precedent”
Former Supreme Court judge
Santosh Hegde feels nobody
gained or came out wiser in the
recent episode which saw four
senior apex court judges virtually
revolted against the chief justice
of India
INDIALEGALSHOW
20

7. REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
| INDIA LEGAL | June 11, 2018 7
FOCUS
Patent Profiteering
Companies flout rules by typically withholding critical information on
a patent’s commercial working while applying for trademarks
30
43
Dog lovers in Uttar Pradesh have
moved the Supreme Court against the
reckless and vengeful culling of
canines which are suspected to have
killed many children in the district
Sitapur’s Dog Days
46Bitter Harvest
Since it does not cause smog, the prob-
lems caused by crop stubble smoke dur-
ing April-May may seem less acute, but
the damage to the environment is no less
Cover Design:
ANTHONY LAWRENCE
Heal the Healers
With compromised medical councils,
greedy corporate hospitals and their
target-driven doctors have ended up
treating patients like assembly lines for
profit, writes Jai Dehadrai
COLUMN
38
PROPERTY
That Didn’t Strike Home
Rules framed by the Uttar Pradesh government under the Real
Estate (Regulation & Development) Act, 2016, defeat its purpose
34
Rape and Recovery
Clinical psychologists should provide
trauma counselling to sexual abuse
victims, as per a standing order by the
Delhi Police. Dr Rajat Mitra finds this
has helped many get access to justice
40
MYSPACE
SPOTLIGHT
STATES
Ringside............................8
Delhi Durbar ...................10
Courts.............................12
National Briefs................29
International Briefs..........37
Media Watch ..................49
Satire ..............................50
Building Bridges
The SC’s path-breaking judgment on parliamentary standing
committee reports being admissible as evidence in court,
passed by a bench led by CJI Dipak Misra, has earned kudos
24
POLITICS
BJP Gets Burnt
The party’s crushing defeat against a united Opposition in the
bypolls shows that it won’t be easy for it to win the 2019 elections
26

8. 8 June 11, 2018
“
RINGSIDE
“This alliance has
defeated arrogant
BJP leaders, who
have been claiming
that there is no
alternative to the
BJP. It has given a
new direction to
politics, ahead of the
2019 elections.”
—Tabassum Begum,
who won the Kairana
Lok Sabha seat on an
RLD ticket
“There is lot of talk
and slogans like
Make in India, Skill
India, Digital India,
Stand up India,
but has anything
been done? Has
anyone seen any
change? Has anyone
benefited?’’
—Andhra Pradesh CM
N Chandrababu
Naidu, hitting out at
PM Modi at a TDP
conclave in the state
“I am always con-
cerned if people are
talking about fixing
in cricket. I am a lit-
tle perturbed by any
accusation that we
would attempt to
sweep it under the
carpet.... So we will
investigate fully....”
—ICC CEO Dave
Richardson on the
match fixing scandal
exposed by Al Jazeera
“I don’t claim Modi is
a great orator. But...
that is what people
believe. A story is
not always about
what you have done
—a story is also
about what we want
to do.”
— Former Union min-
ister Salman Khur-
shid, on what the
Congress should do to
win the 2019 Lok
Sabha polls
“What I said is that I must consult the
Congress on all matters since we are in a
coalition. The BJP is going around saying
things that I am not willing to waive off the
loans at all. I have said I will waive the
loans. I cannot do it overnight. You need to
give me some breathing room.”
——Karnataka Chief Minister H D Kumaraswamy
“Now the govern-
ment is saying that
the factory is closed.
If Sterlite is going
back with an appeal
against the govern-
ment, they cannot be
considered as hu-
man beings.... No
government or court
should allow that."
—Actor-turned-
politician
Rajinikanth
“We have been
supporting
demonetisation
right from the
start. But it did not
provide as much
benefit to the
country as was
expected. Banks
did not play very
supportive role....”
—Bihar CM Nitish
Kumar at a state
level bankers’ meet
in Patna
“Would love to be in
India. Some chal-
lenging government
regulations, unfortu-
nately. Deepak Ahu-
ja, our CFO, is from
India. Tesla will be
there as soon as he
believes we should.”
—Billionaire CEO
Elon Musk on
whether his electric
car company Tesla
will debut in India

10. 10 June 11, 2018
An inside track of
happenings in Lutyens’ Delhi
With elections due for the Madhya
Pradesh, Rajasthan and Chhattisgarh
assemblies in November this year, the
Congress party is hoping that worsening
agrarian crisis and farmers’ woes will help
its leaders topple the BJP governments in
these states. The Congress has been out
of power in Madhya Pradesh and
Chhattisgarh for 15 years, while it lost
Rajasthan to the BJP in 2013.
All eyes are now on a mega rally that
the Congress’s Madhya Pradesh unit will
organise in Mandsaur district on June 6.
The rally will be addressed by Rahul
Gandhi, who will also officially launch his
party’s assembly poll campaign from here.
Mandsaur has been the epicentre of farmer
protests in central India since June 6 last
year when five agitating farmers were shot
dead by the Madhya Pradesh police in
the district.
Located on the border of Madhya
Pradesh and Rajasthan, Mandsaur,
Congress leaders hope, will be the best
platform for launching a campaign against
the BJP on the issue of farmers—one that
could help the party directly reach out to
farmers in both these states. Leaders from
the party’s units in Madhya Pradesh,
Rajasthan and Chhattisgarh will, in the
coming weeks, also hold lengthy discus-
sions with various farmer organisations. A
vision document with focus on agriculture
is also on the cards. The party is hoping
to reap a rich harvest at the hustings
in November.
The latest national opinion poll conducted
by CSDS-Lokniti, in partnership with ABP
News, is not such good news for
Narendra Modi and Amit Shah. If the 2019
Lok Sabha elections were to be held
today, the BJP would not get a majority on
its own and will have to depend on its
allies to retain power.
According to the survey, almost 47 per-
cent of the total 15,859 respondents are
of the opinion that the Modi government
does not deserve to be voted back to
power in 2019, while 39 percent thought it
deserved a second chance, with the rest
remaining non-committal. If that is the
mood of the nation, it should be cause for
worry for the ruling party and its allies.
In terms of seats, the survey shows
that the NDA would get 274 seats, the
UPA would win 164 seats, while other par-
ties would get 105 seats. In terms of the
nationwide vote share, NDA would get 37
percent votes, down from 38.5 percent in
2014, UPA would get 31 percent votes, up
from 23 percent. The biggest losses for
the NDA, if the survey is correct, will be in
Uttar Pradesh where it won 71 of the 80
Lok Sabha seats in 2014. In 2019, the
BJP’s vote share would come down to 35
percent, the survey says, a major loss of
seats. The NDA will also get hit in south-
ern India, where it is likely to win just 18-
22 seats, while the UPA could bag 67-75
seats. Other players and regional parties
could win 38-44 seats. The survey was
conducted around the middle of May.
Where the NDA would gain is in Bihar
and eastern India, including West Bengal,
Odisha, Jharkhand and Assam. The bad
news for the NDA is that if assembly elec-
tions were held today in Madhya Pradesh
and Rajasthan, the Congress would win
both. The good news for the Congress is
that the popularity gap between Modi and
Rahul has come down to 10 percent from
17 percent five months ago. However,
there is almost a year left for the Modi
government to turn things around, but
even so, if the poll is somewhat accurate,
it sends a loud warning signal.
MOOD OF THE NATION
After months of open rebellion
against Odisha Chief Minister
Naveen Patnaik, which led to his
suspension from the Biju Janata
Dal, the erudite Kendrapara MP,
Baijayant “Jay” Panda, recently
announced his decision to quit
the party. Sources say that the
Kendrapara MP, who had been
heaping praise on Prime Minister
Narendra Modi, will most likely
switch over to the BJP. Politicians
in Odisha are even joking about
the imminent switch being just a
matter of changing initials for
Panda—going from the BJD to
the BJP (his initials are BJP too).
The absence of any anti-
Patnaik protests by Panda’s sup-
porters in Odisha, sources say, is
because Panda hardly has any
mass base and his two electoral
victories from Kendrapara were
largely attributed to the fact that
the Lok Sabha seat has been a
BJD bastion for decades.
However, the BJP may still
accommodate the suave politician
within its ranks because of his
other strengths – his financial
clout and his family’s ownership
of OTV, Odisha’s most viewed
regional news channel.
JAY WALKING
FOR A RICHER HARVEST

11. | INDIA LEGAL | June 11, 2018 11
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
The Election Commission has been
facing severe criticism, especially
from Opposition parties, for acting
as an agent of the Modi regime
and over bizarre explanations for
malfunctioning EVMs and VVPAT
equipment (blaming it on the heat
wave, really!) during the recently
concluded bypolls.
However, there was some
comic relief during these tense
times when voters in Palghar,
Maharashtra, lined up to cast their
votes for the parliamentary bypoll.
Soon after polling
began, social media
feeds of news agen-
cies were full of pic-
tures of voters waving
their middle fingers at
the shutterbugs.
This wasn’t, howev-
er, an expression of
anger against soaring oil prices,
faulty EVMs, et al. but the custom-
ary “I-have-voted” photo op that
voters get during any election,
albeit with a twist. Since parts of
Palghar had witnessed local body
elections a day before the Lok
Sabha bypoll, voters who had cast
their votes for Panchayat election
already had their index finger
marked by the indelible ink. As
such, election officials had no
choice but to mark a different fin-
ger—and so, the notorious middle
finger it was. Someone in the EC
clearly had a sense of humour.
COMIC RELIEF
As Prime Minister, Atal Bihari Vajpayee pursued
a Look East Policy aimed at bringing India and
the Asean countries closer, Prime Minister
Narendra Modi too is following the Look East
Policy, albeit with a difference. He has been
undertaking tours to the eastern states with
increasing frequency. Last week he toured
Jharkand, Bengal and Odisha. With the general
elections just a year away, it could be assumed
that Modi’s aim is to better his party’s prospects
in these states. But there could be another,
more important reason. Reports suggest that
Modi may shift from Varanasi to the temple town
of Puri in Odisha in the 2019 elections. In 2014,
Modi had contested from Vadodara in Gujarat
and Varanasi. This time too he is expected to
contest from two places, and one could be Puri.
While the move is expected to help the BJP’s
prospects in the state where the Congress has
been relegated to the third place and the ruling
Biju Janata Dal is a house divided, it could also
be an acceptance of the fact that the coming
together of all the Opposition parties––Bahujan
Samaj Party, Samajwadi Party, Congress and
Rashtriya Lok Dal—in UP has rattled the BJP, as
witnessed in Gorakhpur, Chief Minister Yogi
Aditynath’s constituency where the BJP was
routed in the Lok Sabha by-elections last month.
MODI’S LOOK EAST POLICY
Delhi
Durbar
THELOYALTYFACTOR
While one former chief minister’s
fall from grace is now complete,
another is on the rise. Digvijay
Singh being stripped as general
secretary in charge of Andhra
Pradesh was something waiting to
happen. The move surprised none,
barring Singh himself. Andhra is
headed for polls next summer and
Digvijay has not covered himself
with glory in elections in the other
states under his charge. Last year,
the Congress’s failure to form a
government in Goa despite being
the single largest party in the
assembly was solely due to Diggy
Raja’s ineptitude.
Rahul Gandhi is not going to let
old family ties come in the way of
his plans to take the Congress
back to its glory days. With the
party returning to power, albeit as a
junior partner in a coalition with the
JD(S) in Karnataka, the high com-
mand has brought in the tireless
Oommen Chandy. The former
Kerala CM’s actions speak louder
than words. Chandy’s many cross-
party friendships are expected to
come in handy for the party in the
run-up to the polls. The Congress
was expected to fight a four-cor-
nered battle in the state with the
Telugu Desam Party, BJP and
Jaganmohan Reddy’s YSR
Congress, but that may now turn
out to be a three-cornered one as
Chandy is wrested with the task of
coaxing the breakaway leader back
into the party. Jagan has been
assured that he will be the CM can-
didate and will have full independ-
ence, in the constitution of party
committees and selection of candi-
dates for the 2019 polls. Jagan
may find hard to reject this offer.
Prime Minister Narendra Modi has a deep and
abiding bond with bureaucrats from Gujarat—
many have been given top posts in the central
government. Loyalty seems to be the priority,
which explains why Gujarat Chief Secretary JN
Singh, who had served under Modi when he
was chief minister, has made a compilation of
his former master’s non-political speeches dur-
ing the latter’s long stint as chief minister of
Gujarat. Singh has turned the collection into a
book and, with the blessings of current CM Vijay
Rupani, it has been dispatched to all states with
instructions that it is to be distributed to all IAS
officers. Loyalty really goes a long way.
RISE AND FALL

12. Former Union Finance Minister P
Chidambaram received court pro-
tection in both the alleged INX Media
scam and the related Aircel-Maxis
cases. This protection will not allow
the Central Bureau of Investigation
(CBI) to initiate arrest against the senior
Congress leader.
On May 31, Justice AK Pathak of the
Delhi High Court granted him interim protec-
tion in the alleged INX Media scam till July 3.
Chidambaram had moved the Court seeking
anticipatory bail. The matter pertains to grant
of Foreign Investment Promotion Board
(FIPB) clearance to the firm, Global Commu-
nication Holding Services Ltd for investment
in Aircel. Chidambaram had allegedly
facilitated this during his tenure as finance
minister in the Manmohan Singh-led
UPA government.
Earlier, with the CBI having summoned
Chidambaram (on June 5) in the Aircel-Maxis
case, he had applied for anticipatory bail at a
Delhi court. That court also granted him
interim protection till June 5 and said that no
coercive action can be taken against the
Congress leader till that date.
Courts
12 June 11, 2018
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
Madras HC rules
out homework for
Class I and II
While observing that children
are losing their innocence,
the Madras High Court has asked
the centre and states to do away
with homework for Class I and II
in all schools and across all edu-
cation boards.
The Court also ruled that the
centre must order state govern-
ments that Class I and II students
should not be made to study any
other subject, barring language
and Mathematics. It further said
that students from Class III to V
should only study language, envi-
ronmental studies and Mathema-
tics. The ruling is in line with
NCERT guidelines and it had pre-
sented them in an earlier hearing.
While commenting that chil-
dren are not weightlifters, the
Court also asked the centre to
issue directions to state govern-
ments and UTs that they must
come up with a “children school
bag policy”. It also insisted that
flying squads be formed to ins-
pect schools to find out whether
the Court directions were being
strictly followed.
The Court gave its order on a
petition filed by a lawyer, who
brought up issues concerning the
welfare of students.
The Calcutta High Court
administration has drafted
rules that will treat lawyers’
strikes as interference with the
administration of justice. It will
now place these rules before
a full bench of the High Court
for approval. The Court this
year had witnessed its longest
ever strike by lawyers during
March-April.
The administration infor-
med the division bench hear-
ing a related petition that the
rules have already been fra-
med and are waiting to be
placed before the full court for
its approval.
The Supreme Court in
2012 had directed High
Courts to formulate rules
which empower them to gov-
ern the right of advocates to
practice law.
Having pleaded before the
SC for more time to va-
cate his official bungalow,
former UP CM Akhilesh
Yadav started moving out
from his house on May 30
to meet the deadline set by
the UP government. His
father, Mulayam Singh Ya-
dav, also an ex-CM of UP,
had also appealed to the
apex court asking for more
time for various reasons.
Kalyan Singh and Rajnath
Singh have also started mo-
ving out of their official bun-
galows. However, ND Ti-
wari’s wife—the UP govern-
ment asked him to vacate as
well—has appealed to the
UP to allow her to stay
because Tiwari is apparently
in the last stages of his life.
BSP chief and former UP
CM Mayawati has vacated
one bungalow in Lucknow
but held on to another one.
Calcutta HC admin frames rules on lawyers’ strikes
Akhilesh Yadav moves out of
official bungalow
Chidambaram
gets interim
protection
from court

14. Lead/ e-Courts
IME, place and threat to
witness safety are no bar-
riers to perfect justice in a
technologically-enabled
world. Hence in 2005, the
Supreme Court e-commit-
tee, headed by Dr Justice GC Bharuka, a
retired judge of the High Court of
Karnataka, presented the National
Policy and Action Plan for Implemen-
tation of Information and Commu-
nication Technology (ICT) in the Indian
judiciary to the chief justice. The e-
courts project was born.
The project was to be implemented
in three phases. In the first phase, com-
puter server rooms and judicial service
centres were to be set up in all 15,000
courts operating from around 2,500
complexes in India. The second phase
would entail provision of ICT coverage
of the judicial process from filing to exe-
cution. In the third, information gate-
ways would be created between courts,
Indiancourtsaregettingdigitisedbuttherearehiccupsonthe
way—slowconversionofcaserecords,redtape,incompetently
executedrenovationsandclientswhoaren’ttechsavvy
By Sucheta Dasgupta
T
14
I
n 2014 when the Jhelum flooded,
wreaking havoc in its wake, the
records of the Jammu & Kashmir High
Court were also affected. A submerged
High Court meant the destruction of
numerous case files and records. While
many of these documents were recov-
ered and put out to dry in the sun, they
were afflicted by mould, causing infection
to those handling these files, be they reg-
istry staff or judges.
On April 1, 2017, Justice Badar D
Ahmed took over as the chief justice of
Jammu & Kashmir High Court armed
with the knowledge of changes he had
wrought in the Delhi High Court e-courts
system. One of his early actions was to
try and minimise the above mentioned
recurrence. This High Court moves twice
a year between Jammu and Srinagar.
This means that not only do people trav-
el, but so do lorry-fuls of files. For about
a week, the chief justice’s secretariat
finds it difficult to function as it can’t
access files in transit.
Realising that the need for digitisation
was dire, Chief Justice Ahmed began the
process of starting e-courts in the Jammu
& Kashmir High Court. Work which took
about five years to achieve in Delhi took
about six months in J&K. This was largely
because of previous experience and part-
ly because of the huge amount of sup-
port he received from his colleagues on
the bench, the bar and, more importantly,
from the government which allocated
resources, monetary and otherwise.
What followed is a useful blueprint for
other High Courts and states, should
they wish to combat pendency woes,
which stem mostly from a paucity of
judges but can be partly assuaged
through the use of technology. Chief
Justice Ahmed began by commissioning
a project report by personnel from the
Supreme Court e-committee of which he
was a member and the National
Informatics Centre (NIC) to ascertain
what the requirements would be. A budg-
et was prepared, hardware and software
acquired, and the first step, that of scan-
ning old files, begun. Then current files
were scanned.
What this achieves is saving time
when a case is being heard. A judge
going through the file to write her judg-
ments can access annexures, specific
pages of the file, evidence, case law that
has been cited, etc., at the click of a
mouse. The judge can see multiple
documents at once, making comparing
easy and deftly copy notes to the side of
the screen. Using Vacom and Microsoft
One Note, Chief Justice Ahmed devised
a method in Delhi whereby the judge can
take notes using a stylus. The system
eventually learns to recognise reasonable
handwriting written with the stylus and
can index the work immediately.
It’s even possible to add a sticky note
wherever and use it as a complete
The J&K High Court shows how
digitisation can make a difference
in the judiciary and the lives of
ordinary people
LitigationMadeEasy
The Digital Divide

15. Systems (CIS) and are connected to the
National Judicial Data Grid (NJDG).
The case load on that grid is 42 million.
There is a separate NJDG for subordi-
nate courts. In most High Courts, the
court fee is payable electronically.
Almost all HCs and many district courts
have video-conferencing facility. And the
total number of electronic judicial trans-
actions conducted all over India is a
public agencies and government depart-
ments. The second phase is ongoing and
is being implemented by the National
Informatics Centre.
I
t is reliably learnt that all 24 High
Courts functioning from within 39
complexes across the 29 states and
seven Union Territories have their
respective electronic Case Information
| INDIA LEGAL | June 11, 2018 15
annotation software.
Such a system is particularly useful
for criminal cases. Evidence such as fin-
gerprints can be enlarged on the screen
and viewed with greater clarity than
peering through a magnifying glass at
pieces of paper. An e-court services app
provides information about cases in dis-
trict courts.
Video-conferencing was the next
change introduced. On a visit to the
courts in Kargil and Leh, Chief Justice
Ahmed was approached by groups of
people who wanted a bench of the High
Court in Leh as commuting to Srinagar or
Jammu was considerable hardship for
residents of these far-flung parts. He
addressed the problem by introducing
video conferencing and before demit-
ting office in March 2018, conducted
some hearings. This facility enables, for
example, a lawyer in Kargil and one in
Jammu to be heard simultaneously by a
judge in Srinagar.
Video-conferencing is particularly
helpful in J&K with its issues of terrain
and commuting and the threat of militan-
cy. It is also helpful in the case of transfer
petitions, which can be heard only by the
chief justice. This would mean that while
he is sitting in Srinagar, such cases
would pile up in Jammu or vice versa.
Many transfer petitions are filed by
divorcing couples living in different
towns, vying with each other to have the
hearings in the city they live in. With
video-conferencing, there is no more pil-
ing up of petitions.
Screens and projectors in court-
rooms allow lawyers to make presenta-
tions to fully explain a case. They can be
used by a lawyer in an intellectual proper-
ty case to show exactly how a TV adver-
tisement harms his client’s product,
rather than the story board format that is
supplied to judges in the earlier non-
technologically era.
E-filing was the next step. Eventually,
this can enable even someone living
abroad to file a case or give his reply via
the electronic medium without having to
fly down. It also enables cases
approaching the limitation time to be filed
up to 11:59 pm of the last date rather
than 5:30 pm when court staff leaves
for home.
The benefits of technology are useful
in other areas as well. Under Chief
Justice Ahmed’s able stewardship and
the active support of Justice Magrey, the
High Court managed to get the govern-
ment to set up eight Juvenile Justice
Boards in a state where there was none
earlier. Within just a few months, each
of these boards catered to a clutch of
districts. Orphanages and observation
homes were improved and increased in
number. The use of technology also
helped in criminal cases, with those lan-
guishing in jail being identified and dealt
with more speedily.
In the midst of all the gloom and sad-
ness, the story of changes in the Jammu
& Kashmir High Court brings to life the
old aphorism: “Where there is a will,
there is a way.”
—Nayantara Roy
TheNationalJudicialDataGridisabigachievement,saysProf.NRMadhavaMenon
(right).Accordingtohim,20yearsago,onetalkedofpendencyintermsofperceptions,
butnowoneknowstheexactgroundreality,thankstodigitisation,whichislargelydriven
bytheSupremeCourte-committee.ThefirstwasheadedbyDrJusticeGCBharuka.
Anthony Lawrence

16. stupendous 142.1 crores.
So has digital utopia arrived in the
courtrooms of India? Prof. NR Madhava
Menon, founder director of the National
Law School of India University and
National Judicial Academy, Bhopal, told
India Legal: “The NJDG is a big
achievement. It is constantly updated.
How much work has been achieved can
be known from logging on to it. Twenty
years ago, we used to talk about arrears,
delays, etc., in terms of perceptions.
Now, we have exact knowledge of the
ground reality, thanks to digitisation.”
In High Courts, daily and monthly
cause-lists are being generated electron-
ically and shared on the respective web-
sites, but conversion of case records to
soft format has been slow and has left a
lot to be desired. Besides, the ground
reality may be totally different. This can
be gauged from a news report which
said that in 2016, after checking 800
case records with 13,800 hearing dates
on the e-Courts website for a magis-
trate’s court in Maharashtra, a survey
team found that there were only 35 case
records with a total of 86 order sheets
available among them!
In the Delhi High Court, despite the
Digital India push by Prime Minister
Narendra Modi, some judges still con-
duct proceedings the old-fashioned way
by reading the hard copy of documents
pertaining to cases.
In Division Bench-1, there is less use
of the computer during proceedings and
more reading from the hard copy of
files. Similar is the situation in division
benches III, IV, VI and VII where there
is no use of any digital devices. However,
some judges in Division Benches II and
V have kept pace with time and avoided
using hard copies of documents. A ben-
ch of Justices S Ravindra Bhatt and AK
Chawla, dealing in civil matters, has said
no to the paper trail and gone complete-
ly digital. Again, a bench of Justices S
How much work remains to be done on
the e-court project?
The nuts and bolts of the project allow
you to transit into the electronic mode of
functioning completely. At the functional
level, it means lots of data collection, col-
lation, digitisation of files and court or-
ders and uploading them on a day-to-
day, real-time basis. If one has to ach-
ieve 100 percent digitisation, where all
work is performed in a digital environ-
ment and where all courts are eCourts,
the entire court establishment has to be
overhauled. Right now, a part of court-
related administrative work has been
digitised. At the moment, 12 judges of
the Delhi High Court are functioning in
eCourts. Electronic courts exist in a few
subject matters such as tax jurisdiction,
arbitration cases and company cases for
the past five years. This has meant that
the over 10,000 cases filed in the last five
years have no papers. But it is a work in
progress. Not all courts are eCourts; at
least 75 percent of cases filed are in
hard copy, paper format. Also, we have
not yet transited into the electronic for-
mat to the extent that digital signatures
are insisted about. As not everyone has
one, the client’s signature on the vakalat-
nama is in paper format, as also the affi-
davit. This means that in electronic
cases, 3-4 documents are on paper,
while the remaining ones, whether it is 50
pages or 5,000, are in digital form. The
High Court has not yet mandated com-
plete digitisation which means uploading
cases by lawyers and litigants on
account of security. Connectivity has not
happened because of this. The files are
all server-based. As long as adequate
firewalling and securing filing is not in
place, the Court would not go fully digi-
tal. The complete architecture for that,
however, has been devised.
At the macro level, the eCommittee of
the Supreme Court has created a unique
project the likes of which is not found
anywhere in the world--the National
Judicial Data Grid. It has now entered
the third phase where all courts in India
are connected and integrated on a daily
basis, uploading court orders in each
case so that the exact movement and
tracking of cases is possible.
What are the challenges you faced when
this transition was happening?
Individually speaking, I was the first one
JUSTICE S RAVINDRA BHAT of the Delhi High Court headed the
country’s first e-court. He tells SUCHETA DASGUPTA that those who use
technology know its benefits
“Arollbackwouldberegressive”
16
Lead/ e-Courts

17. puter, thereby defeating the very pur-
pose of the digitisation.
B
ut for this, one requires man-
power. Since 2013, as case infor-
mation system software develop-
ment progressed, the number of fields
required for input of information in ev-
ery case rose from 20 to 200. An over-
worked court clerk, who is the actual
creator of the database (the litigant,
judge and lawyer are only consumers), is
bound to skip some of the fields as he
handles a huge number of cases daily.
This is over and above the humon-
gous number pending—54,719 in the
(court nos. 26, 27 and 31) actively use
digital devices during proceedings. In
short, more than half of the total
strength of High Court judges is not
using any type of digitisation in courts.
And then again, mere digitisation of
records is not enough. In 2017, newspa-
pers widely reported that the Supreme
Court had scanned 1.05 crore page
records. But they forgot to mention that
only scanning and uploading records is
not the way to make them readable,
searchable and accessible. All details
must be entered electronically in dis-
crete fields. Otherwise, what is illegible
on paper remains illegible on the com-
Muralidhar and IS Mehta dealing in
criminal matters uses digital devices.
Other benches like DB-VIII, presided
over by Justices Siddarth Mridul and
Deepa Sharma, has also gone paperless.
On the other hand, single-bench jud-
ges dealing in civil, criminal and origi-
nal jurisdictions (court numbers 12, 13,
16, 22, 23, 24, 25, 28, 29, 30, 32 and 35)
hardly use any digital devices during
proceedings. The only single-bench
judge who is using digital devices is
Justice Rajiv Shakdher. Similarly, three
other judges from Original Jurisdiction
Civil (court nos. 19, 20 and 21) and
three judges from Criminal Jurisdiction
to do this. It was a novel experience.
However, I was familiar with technology
because I had been using computers for
20-22 years before the eCourt was
launched was on December 15, 2009. It
was quite challenging for us judges.
Some cases were extremely voluminous.
They were difficult for judges to crack. In
such cases, the transition proved to be
providential as the files could be
accessed accurately instantaneously.
My interactions with colleagues who have
presided over the eCourts over the last
year have shown that everyone has
improvised and found their own comfort
level with technology. Each judge uses
the system in her or his own way and
keeps learning. That’s the beauty of it.
Those who use the technology will know
its benefits.
Do you foresee widespread use of tech-
nology by lawyers and judges in the
coming years?
Experience has shown that it is difficult to
impose change. Advocates, specially
senior and aged counsel, either hesitate
to use it, or are reluctant. Some feel that
they are too old to learn and are diffident.
The good news for them is that though
the files are digital, there is no compul-
sion that when they appear in court, they
have to use digital files; they can read
from paper files.
As far as judges are concerned, some
are comfortable; a few are reluctant to
use technology. Some have other issues.
In all those cases, there is no question of
imposing technology. Yet in areas where
digital filing prevails (where the court has
no hard copy or paper files), the judges
will have to adapt and use technology. In
such cases, it would perhaps be regres-
sive to let paper files return as it would
mean making valuable shelf space avail-
able where for the last five years, no such
space was needed. Also, it might be a
substantial setback to the e-Court project
if there is a rollback. However, talk of this
is doing the rounds.
Do you think lawyers can use technology
in other ways?
One possibility for use of technology by
lawyers is to have tele- or video-confer-
ences. Sometimes litigants might prefer
to meet lawyers personally because of
confidentiality issues or if they want to
show documents. But on the other hand,
a Skype conference often solves the
problem of time and large distances.
An example of technology is the use of
video-conferencing by High Court legal
aid lawyers who can speak to undertrials
before appearing for them in bail cases.
Previously, when such litigants were pro-
vided legal aid, it was difficult for lawyers
to meet them because of the time and
distance involved. This meant that if the
client wanted to share some facts or
even pass a message to his family, it was
next to impossible. Video conferencing
has to some extent eliminated this barrier.
I am sure that as time passes, more uses
of technology will be discovered.
The Delhi High Court has constructed
a new block which is state of the art.
Apart from being eco-friendly, every court
is potentially an eCourt to the extent that
in the not too distant future, counsels and
advocates may be able to appear
through video conferencing. Even today,
in the existing court system, video confer-
encing is resorted to for recording evi-
dence and deposition of outstation and
overseas witnesses. This has been a
boon, as it enables litigants to save
money, travel and time.
How would you compare your e-court
with a court in a country which has made
a lot of progress?
I have seen Australia and it has an excel-
lent eCourt system. Yet there is no com-
parison. Those courts do not handle the
kind of volume of cases like we do. The
volume itself sets us apart. The Australian
Federal electronic court architecture is a
seamless end-to-end integration. In the
federal system, which is not a very large
one, a litigant can file from any geo-
graphical location. There is vertical inte-
gration. The lower courts’ judgments are
in the court server system. The litigant
has to merely file an appeal and tag the
lower court order; the system is such that
the files of the lower court or tribunal and
the judgements are automatically linked
with the appeal file. This has been tried in
our criminal roster—especially in ses-
sions cases, murder appeals, etc.
| INDIA LEGAL | June 11, 2018 17

18. Supreme Court, 34.27 lakh in High
Courts and 2.6 crore in subordinate
courts. As records are scanned and
uploaded, another problem that crops
up for advocates and litigants is how to
make amendments to a pdf file of an
affidavit or an appeal after it is generat-
ed and digitally signed? One has to go
through the process of generating it all
over again as correction through an
optical character recognition interface
would still require use of the human ele-
ment and nearly the same effort.
Another area that needs attention is
the cross-referencing of judgments. This
can be done electronically through
hyperlinks and would greatly reduce
judgment length and improve its read-
ability, accessibility and quality. An aver-
age judgment is around 500-600 pages.
The 1973 Kesavananda Bharati vs the
State of Kerala case judgment, for exam-
ple, is 703 pages, and the Supreme
Court Advocates-on-Record Association
vs Union of India (2015) judgment is
the longest at 1,030 pages. Judges, as a
matter of course, cite case precedents
which increase the length of the judg-
ment. To make the best of digitisation,
they must learn to only refer to the cases
in their judgment rather than describe
them in detail as is the norm today.
But there are practical difficulties,
especially for judges. There is the digital
divide in terms of age and generation
gap. Most judges are above the age of
50, and though they are being trained, it
is not easy for them to pick up the basics
of a computer and master the skills of
navigating various electronic applica-
tions, let alone learn the nuances of
online adjudication. This holds true
even though the apex court’s seniormost
judge, Jasti Chelameswar, once famously
said: “If the Pentagon has Wi-Fi, why
not the Supreme Court?” As for lawyers,
the reality is only slightly different. Ma-
ny have learnt to use the online system
for the sake of survival, some haven’t.
Even so, a large section still prefers to
meet clients personally. This practice
deters them from using the e-court net-
work. Unscrupulous ones even like to
withhold information from clients; they
do not relish the idea of case informa-
tion being displayed virtually and avail-
able at the click of a mouse.
Another issue is the longevity of the
technology being used. Already, Rs 935
crore has gone into setting up the sys-
tem. There are fears that by the time
users get a hang of it, the operating sys-
tem software may be redundant or the
hardware may have changed and appli-
cations become obsolete.
I
ncompetently executed renovations
and website upgrades, too, very
often leave users in a limbo. For
example, when the Supreme Court site
was moved last summer, lawyers,
returning after the break, found that the
old website had been replaced by a new
one, but daily cause-lists, old judgments,
case statuses and orders had disap-
peared. A few weeks back, the new site
was also reportedly hacked. If these
happen too many times, they cannot be
laughed away as teething troubles.
There are also instances of bureau-
cratic red tape derailing the project. In
some courts, third-party vendors have
been hired for setting up and maintain-
ing applications. But here too glitches
can occur. Some time back, in a Kerala
court, the court-to-prison video confer-
encing facility was stopped because the
government had not paid the company
that had set up the facility and was run-
ning it. Even where this facility is up
and running like in Chhattisgarh High
Court, it is seldom used. As far as video-
conferencing is concerned, Maharashtra,
Telangana and Andhra Pradesh and
Karnataka have been the top perform-
ers. The Punjab and Haryana High
Court, too, has done exceedingly well
and can serve as an example for others.
(See box.)
But there are so many areas where
work remains. These include setting up
processes for e-evidence, e-notary, e-
claims, machine learning and artificial
intelligence, cloud management and
GPS. It is technically possible to track
an official when he goes out to serve a
summons right up to the doorstep of the
defendant. If the defendant is away, he
can then click a photo of the locked door
and forward it instantaneously. But
what if the person concerned has been
emailed the summons and he never
India has the highest number of inter-
net users, which is estimated to reach
500 million by June 2018. However,
its automation of jurisprudence has
been slower than other countries.
Asia’s leader in this field is Turkey.
Winner of the United Nation’s public
service award in 2012, it now has a
national electronic service across all
its judicial functions. Lawyers and citi-
zens can examine files, pay applica-
tion fees, submit their documents and
claims and file cases electronically to
any court in the land.
The United Kingdom, on the other
hand, has been tardier in this respect.
Lord Justice Briggs, a UK Supreme
Court judge, proposed “radical digiti-
sation” of all civil courts in that coun-
try only in 2016. LJ Briggs’ report
recognises, however, that the suc-
cess of the project will require signifi-
cant behavioural changes from prac-
titioners if it is to come to fruition.
In Australia, the federal court was
the first judicial setting to put in place
electronic court files, and is now seen
as global leader in how to manage
digitised court documents. However,
it is yet to upload all administrative
records in digitised format.
In the US, many state courts are on
their way to becoming fully paperless.
The US Supreme Court, meanwhile,
is still planning to introduce full elec-
tronic filing of different types of
motions and applications, though
even after this, paper filing will still be
required for some processes.
GlobalImpact
Anotherareathatneedsattentionisthe
cross-referencingofjudgments.Thiscan
bedoneelectronicallythroughhyperlinks
andwouldgreatlyreducejudgment
lengthandimproveits quality.
18
Lead/ e-Courts

19. accesses the account?
Yashwant Anand Goswami, member,
Supreme Court e-committee, tells India
Legal: “There are only four jurisdictions
where total digitisation is currently pos-
sible. These are tax, company law, intel-
lectual property law and arbitration. In
criminal matters or land disputes, this is
largely impossible. How can you get your
client to function electronically if he is
illiterate or does not have a mail ID? If
your country is underdeveloped and your
people are digitally naive (see box), work
will happen in a mixed mode.”
Access to justice is every individual’s
fundamental right, according to Articles
21 and 14. But the path to paperless
functioning is far from easy.
(Inputs from Neeraj Mishra in
Raipur and Kunal Rao in New Delhi)
The Punjab and Haryana High Court is
miles ahead of other high courts as
far as use of Information Technology (IT)
is concerned. Besides being first in tak-
ing initiatives pertaining to IT, the court
ensures subordinate courts in the two
states adopt the use of technology for
speedier and efficient justice system. All
records of the Court have been digitised.
Under the www.india.gov.in, only the
Punjab and Haryana High Court site has
a five-star rating. Even the Supreme
Court website has only a four-star rating.
Most other high courts have poor ratings.
The process of digitisation in this
High Court started over a decade ago
and it is keeping abreast with the latest
technology. The IT cell of the High Court,
overseen by a judge, ensures that all the
daily orders in the High Court as well as
subordinate courts in the two states are
uploaded as soon as these are signed.
Subordinate courts in the two states
are making maximum use of video con-
ferencing for remands and bail applica-
tions. All courts have been provided facil-
ities which save on time, expenses on
transport and security and ensure safety.
Another facility that has been provid-
ed to all subordinate courts is recording
of evidence by doctors through video
conferencing. All government hospitals
and dispensaries, including PGI, Chandi-
garh, have been provided facilities for
video conferencing so that the doctors
can testify from their place of work. A
study has now established that the
expenditure has already been recovered
from saving the amount of money spent
on doctors visiting courts. It also makes
doctors available for their patients.
In another unique initiative, the High
Court has linked up with government-run
Common Services Centres. Citizens can
now obtain copies of court orders
through these centres which are spread
out in villages of both states.
Lawyers are encouraged to file peti-
tions online. They get the additional ben-
efit of getting their cases listed for hear-
ing the very next day of filing. Those filing
hard copies may have to wait for a hear-
ing for another day. SMS or text mes-
sages are sent to lawyers to remind them
of the next day of hearing. The same
facility is provided to petitioners who reg-
ister their telephone numbers.
—Vipin Pubby in Chandigarh
Leadingbyexample
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
STRENGTH TO STRENGTH
The first hearing in the J&K High Court via
video conferencing, in February this year
thenorthlines.com
| INDIA LEGAL | June 11, 2018 19

20. TheformerSupremeCourtjudgefeelsnobodygainedorcameoutwiserintherecentepisode
whichsawfourseniorapexcourtjudgesvirtuallyrevoltagainstthechiefjusticeofIndia
India Legal Show/ Justice Santosh Hegde
ORMER Supreme Court
Justice Santosh Hegde has
stated that senior judges have
not set a good precedent by
voicing their opinions against
their colleagues in public.
“There are thousands of judges in differ-
ent high courts in India. Many of them
would have differences of opinion and
they would want to come out and
express these in public, but then, what
would become of institutional integrity.
Judiciary should never be in public at
all. It is an institution that has to work
on its own. Every Tom, Dick and Harry
is discussing what’s happening in the
judiciary. This is not what was expect-
ed,” said Justice Hegde, the former
Karnataka Lokayukta, while participat-
ing in an India Legal Show.
“When you are a judge, you should
be seen talking only inside the court, not
outside,” he said about the ongoing rift
in the Judiciary. “There will be argu-
ments about the institution outside the
institution which is not expected. It had
never happened in the entire judicial
history of India and consequently, the
Judiciary has become the talking point
in every nook and corner of society,” said
Justice Hegde.
He pointed out that public discus-
sion of an institution like the Judiciary
LEGAL DISCOURSE: Former Karnataka Lokayukta Justice Santosh Hegde (centre) flanked by Pradeep Rai, senior advocate, Supreme Court
(second from left); Rajshri Rai, editor-in-chief, APN News (second from right); Inderjit Badhwar, editor-in-chief, India Legal (first right) and Dilip
Bobb, senior managing editor, India Legal (first left)
“Judges Should Speak Inside
the Court Not Outside”
20 June 11, 2018
Photos: Anil Shakya
F

21. is not good for the system and the entire
exercise reaped no benefit.
“They came out, they made allega-
tions, but what did they expect? Did
they expect the viewers, the government
or someone else to give them relief?
Nobody could have given them relief at
all,” he said.
Justice Hegde, the son of former
apex court judge Justice KS
Hegde, had served as the
Solicitor General of India
before taking over as a judge
of the highest court in the
land at the age of 59.
Upon his retirement
from the apex court,
he was appointed as
the Lokayukta of
Karnataka—people’s
ombudsman—from 2006
to 2011, a period in his
life which he describes as
the most fruitful of his
long career.
It was his report on the
iron-ore mining scandal in
Bellary in July, 2011—a few days
before his retirement as Lokayukta—
which led to the resignation of the then
Karnataka chief minister, BS Yeddyura-
ppa, the first chief minister to step down
after being indicted by a Lokayukta.
Yeddyurappa later went to jail.
I
t is perhaps a measure of Justice
Hegde’s impartiality that he named
three chief ministers from different
political parties—BJP, Congress and
JD(S)—in his report. One of them was,
in fact, the very person who had
appointed Justice Hegde to the post.
His report also demanded action
against the influential Bellary brothers,
also BJP members, who were named in
the mining scandal.
When Pradeep Rai, senior advocate
of the Supreme Court, pointed out to
Justice Hegde that thousands of crores
were similarly being siphoned off in
Uttar Pradesh and Bihar by the sand
mafia and others and questioned why no
action was taken against them, Justice
basis of gender, caste or religion. Give
that much leverage to judiciary, deal
with it differently,” he said while assert-
ing that some of the best lawyers in the
country are women.
He spoke about the changes that in
society. He said society, years back, did
not accept people who went to jail but
that has changed today. He referred
to the recently-concluded Karna-
taka elections. He said that cor-
ruption and morality were not
the issues on which the elec-
tions were fought. “In the
recent Karnataka assembly
elections, the BJP fielded
224 candidates, out of
whom 37 percent had crim-
inal records; the Congress
fielded 27 percent candi-
dates with criminal records,
and the JD(S) had 25
percent of defaulters. The
Congress fielded a minister
who had to resign from his
post due to molestation charges.
The BJP fielded a candidate
against whom there was another
charge of molestation.”
That perhaps explains why Justice
Hegde, as much a democrat as anyone
else, cast his vote in favour of NOTA in
the assembly elections.
Justice Hegde was part of the
anti-corruption movement led by veter-
an social activist Anna Hazare. Asked
about his association with the Aam
Aadmi Party (AAP), he said: “When I
joined the movement, it was India
Against Corruption. Later, I saw some
of its people forming a political party.
I had thought that everybody in that
group didn’t like politics. I never joined
them and soon after AAP was founded,
I resigned.”
On the Anna Hazare movement,
Justice Hegde explained that it was the
support of the middle class which made
the movement successful but there was
a fatigue factor which later came into
the picture. He recalled that the last
time Anna had fasted, the government
had to send a Marathi-speaking
| INDIA LEGAL | June 11, 2018 21
Hegde said that this merely signified the
lack of will on the part of government to
tackle corruption and wrongdoing. “It
depends on the government of the day.
Unfortunately it is in their interests not
to appoint a Lokayukta,” he said.
To a question from Rajshri Rai, the
editor-in-chief of APN News, about the
abysmal participation of women in judi-
ciary, Justice Hegde said that the Judi-
ciary cannot function on the basis of
reservation for women. The Judiciary
brings in the best of people, irrespective
of which category they belong to, he
said. “Judiciary cannot function on the
“Judiciaryshouldneverbeinthepublicat
all.Itisaninstitutionthatmustworkon
itsown.Today,everyTom,DickandHarry
isdiscussingwhatishappeningin
judiciary.Thisisnotwhatwasexpected.”
“They(thejudges)cameout,theymade
allegations,whatdidtheyexpect?Did
theyexpectthegovernmentorsomeone
elsetogivethemrelief?Nobodycould
havegiventhemreliefatall.”

22. collegium with people well-connected to
the system should decide the appoint-
ment of judges.
When Justice Hegde was asked
whether the office of the Lokayukta was
devalued after he stepped down, he
referred to the appointment of former
Karnataka High Court Chief Justice
Bhaskar Rao. He said that the Karna-
taka Bar Association had passed a reso-
lution against him saying he is corrupt
and yet he was appointed the
Lokayukta. Within a few months, his
son got access to the records in the
Lokayukta office and he started a racket
by threatening people named in the re-
cord and asking them for money against
settling those matters. “It was a clear
case of dacoity,” he said.
minister to end his fast. But his recent
protests did not gather any public atten-
tion and he had to quit within three
days. Justice Hegde said that these kind
of public movements, if they fail once,
cannot be continued the same way.
A
question was posed to Justice
Hegde as to why retired judges
who are appointed as arbitrators,
charge a hefty amount for every appear-
ance. Justice Hegde, who himself pre-
sides over arbitration matters, said that
the existing laws for arbitration are
not perfect in India.
He added that even after hav-
ing presiding arbitrators, the
award is tested before a civil
judge. Thereafter it goes to
the High Court, and then
to the Supreme Court. He
said that considering that
the civil courts are so
burdened they can’t do
much.
Justice Hegde said:
“It is society that has
made these judges. High
arbitration fees, adjourn-
ments and delays are all true
but rules are coming into
force where these matters are to
be settled within
a year.”
Speaking on the collegium versus
National Judicial Appointments
Commission (NJAC) issue, Justice
Hegde said that the Judiciary is not the
same as the Executive or the
Legislature. He strongly vouched for a
collegium for appointment of judges
since in the Judiciary, the selection is
done by constantly watching an individ-
ual’s performance.
“The NJAC talks about two eminent
persons being its members. How will
these eminent persons be decided? They
would possibly be politicians; how will
they have information on the perform-
ance of a judge?” asked Justice Hegde.
He said that as the prime minister
and the chief minister have the freedom
to choose their ministers, likewise the
He criticised the lawmakers for not
being accountable to the public despite
being the people’s representatives. He
referred to Anna Hazare’s letter to the
prime minister which he had written
during the anti-corruption movement,
in which, he had referred to the then
prime minister, Manmohan Singh, as
a public servant. The then
Railways minister, Lalu Prasad
Yadav, in one of his speeches in
Parliament, rebuked Hazare
for calling the prime minis-
ter a public servant. “This is
the attitude of the elected
representatives today. A
public representative
means he who draws any
emolument from the cen-
tral or the state treasury.
All these elected representa-
tives are public servants, not
masters,” said Justice Hegde.
When a few fresh law gradu-
ates asked Justice Hegde if he
had any message for them, he said
that his last hope for society is its
youth. He entrusted the youth with the
responsibility of transforming society
from what it has become of late.
Justice Hegde, who has addressed
students from over 1,000 educational
institutions, recalled that once, after his
flight got cancelled, he travelled 600 km
through the night by bus just to keep his
appointment with students of a faraway
college in Karnataka. His message to the
young generation was: “Change society,
build one that respects honesty, con-
demn those who go to jail.”
—Compiled by Lilly Paul
22 June 11, 2018
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
India Legal Show/ Justice Santosh Hegde
“TheNJACtalksabouteminentpersons
beingitsmembers.Howwilltheybe
decided,theywouldpossiblybe
politicians;howwilltheyhaveinforma-
tionontheperformanceofajudge?”
“Judiciarycannotfunctiononthebasisof
gender,casteorreligion. Givethatmuch
leveragetothejudiciary,dealwithit
differently. Someofthebestlawyersin
thecountryhavealwaysbeenwomen.”

24. Legal Eye/ SC Judgment/ Parliamentary Panel Reports
24 June 11, 2018
FIVE-JUDGE constitu-
tion bench comprising
Chief Justice Dipak Misra
and Justices AK Sikri,
AM Khanwilkar, DY
Chandrachud and Ashok
Bhushan recently passed a landmark
judgment in which reports by standing
parliamentary committees can be
admissible as evidence in a proceeding
so long as it supports the case put forth
by any PIL or a writ petition.
The Court directive, though restrict-
ed, has been lauded in several quarters
as a path-breaking move, with it allow-
ing such reports as admissible evidence.
Despite the basic separation of powers,
this acknowledgement of the Exe-
cutive’s work has created a bridge,
whereby there can be future coopera-
tion, feel experts.
The bench held that in the cases filed
under Articles 32 or 136 of the
Constitution, the court can take notice
of the parliamentary standing commit-
tee reports and these can be relied upon
for interpretation and judicial
review admissible under the Evidence
Act without challenging them in the
court of law.
The judgment, however, made it
clear that such reports “…can be taken
aid of for the purpose of interpretation
of a statutory provision wherever it is so
necessary and also it can be taken note
of as existence of a historical fact.
Judicial notice can be taken of the
Parliamentary Standing Committee
report under Section 57(4) of the
Evidence Act and it is admissible under
Section 74 of the said Act.”
Admitting a document from the
Executive is a huge step as it may or
may not have legal sanctity and may also
not have scientific approval.
The judgment came while hearing a
PIL filed by social activists challenging
the Drugs Controller General of India
and the Indian Council of Medical
TheSupremeCourt’spath-breakingjudgmentonparliamentary
standingcommitteereportsbeingadmissibleasevidenceincourt,
passedbyabenchledbyCJIDipakMisra,hasearnedkudos
By India Legal Bureau
PATH-BREAKING MOVE
A five-judge bench led by Chief Justice of India
Dipak Misra passed the judgment recently
Building
Bridges
A
Anil Shakya

25. under privilege law is not.”
The ruling got the backing of the
political class, too, with the participating
MPs applauding the SC judgment. BJP
MP Ram Charit Nishad said that the
court has recognised the importance of
the standing committee, though Majid
Memon, who straddles legal and politi-
cal platforms as a senior lawyer and
member of the Rajya Sabha, said the
Judiciary and the Legislative should first
try to solve the conflict.
Congress leader and Rajya Sabha
member PL Punia believes “this is a
good gesture. The report is a privileged
document. If it is used, there is no
breach of parliamentary privileges”. He
said that “relations between constitu-
tional institutions are maintained”.
BJP MP Mahesh Poddar was of the
opinion that “such a judgment will put
a stop to people taking a populist stand
in parliament. It will save the time of
the parliament”.
The overall effect will need further
study, but in admitting parliamentary
committee findings as evidence, the
Court has opened more angles through
which a particularly complex issue could
be understood.
| INDIA LEGAL | June 11, 2018 25
Research’s approval of the Human
Papilloma Virus (HPV) vaccine, manu-
factured by GlaxoSmithKline Asia
Private Limited and MSD
Pharmaceuticals Private Limited for cer-
vical cancer patients. The approval was
given despite a parliamentary standing
committee report opposing the use of
the vaccine. Reportedly, several women
had died in Gujarat and Andhra
Pradesh during a trial run of the vac-
cine. However, the Court also said that
no one can challenge, impeach or ques-
tion any MP for what is stated in the
course of proceedings in court.
Reacting to the judgment, Justice RB
Mishra, former Acting Chief Justice,
Himachal Pradesh High Court com-
mented: “There is no breach of parlia-
mentary privileges here. This is the first
judgment which has commented on
standing committee reports. The report
takes into account facts, studies, etc.”
He, of course, said that the court cannot
“interfere with those (parliamentary)
privileges”. But, referring to the particu-
lar issue, he said: “It is an important
study. The facts, background study, his-
torical facts can be taken as evidence.”
According to PH Parekh, senior
advocate, Supreme Court, the sovereign-
ty of Parliament should be maintained
and for that, the court should not inter-
fere in the process of the House but can
make use of the reports.
Says Abhishek Dixit commandant,
Tamil Nadu Special Police at Tihar Jail:
“The judgment is beautifully crafted. A
court has taken a progressive outlook in
the rights-oriented Constitution. At the
same time, the court has imposed a
restriction based on self-discipline. This
has maintained a balance. The court has
also made it clear that the reports are
not conclusive and it can adjudicate on
it independently. It will not be right to
depend on it totally.”
T
here is enough credibility
attached to such papers.
Constitutional expert Subhash
Kashyap says that once standing com-
mittee reports are laid before the House,
they become a public document. “Not
only the courts, anyone can quote it,
make use of it, and express views with
regard to it. But before the report is laid
on the table, no outside interference is
acceptable with the legislative process.”
Here, he made a small divergence
and accepted that parliamentary privi-
leges may not be absolute. He says: “The
Constitution has only given freedom of
speech. Parliamentary privileges can be
laid down by Parliament by law and by
each legislature. No law has been made
till date and, therefore, the privileges to
some extent come under judicial pre-
view. Existence of privileges is subject to
judicial preview but exercise of power
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
“Oncethestandingcommitteereportsare
laidonthetableoftheHouse,they
becomepublicdocuments.Notonlythe
courts,anyonecanquoteit.”
SubhashKashyap,constitutionexpert
“Thereportisaprivilegeddocument.Ifitis
used,thereisnoquestionofparliamentary
breaches.Relationsbetweenconstitutional
institutionsaremaintained.”
—PLPunia,CongressMP
“Suchajudgmentwillputastop
topeopletakingapopuliststandin
parliament.Itwillsavethetimeof
theHouse.”
—MaheshPoddar,BJPMP

26. 26 June 11, 2018
ITH just a year to
go before the 2019
general elections,
the humiliating
defeat of the BJP in
bypolls for four
Lok Sabha and eight assembly seats
spread across nine states of the country
must have come as a jolt to Prime
Minister Narendra Modi and BJP presi-
dent Amit Shah. That the results came
less than a fortnight after the embar-
Politics/ Bypoll Results
Saffron Singed
TheBJP’scrushingdefeatagainstaunitedOppositionintherecentbypollsshowsthattheNDA
hasitstaskcutoutifitwantstoretainpowerinnextyear’sgeneralelections
By Puneet Nicholas Yadav
W
THE GOING GETS TOUGH
Prime Minister Narendra Modi with BJP
President Amit Shah in New Delhi
rassment in Karnataka, where the BJP
emerged as the single largest party in
the May 12 assembly polls but had its
hopes of forming a government dashed
by the coming together of the Congress
and the Janata Dal (Secular), must have
added insult to injury.
Of the four Lok Sabha bypolls—
Kairana in Uttar Pradesh, Palghar and
Bhandara-Gondiya in Maharashtra and
Nagaland—the BJP technically retained
only a single seat, that of Palghar where
it found its biggest challenger to be its
friend-turned-foe, the Shiv Sena. Even
in Palghar, the party’s massive 2.30 lakh
victory margin of the 2014 polls came
down to just 29,572. While victory of
the Nationalist Democratic Progressive
Party (NDPP) candidate in Nagaland
does boost the NDA coalition’s tally by
one seat in the Lok Sabha, it is widely
known that coalitions with regional out-
fits in north-eastern states are largely
unstable and open to a divorce as soon
as political winds in New Delhi take a
divergent course.
T
he victory of Tabassum Hasan,
who contested on the Rashtriya
Lok Dal (RLD) ticket backed by
Akhilesh Yadav’s Samajwadi Party (SP),
Mayawati’s Bahujan Samaj Party (BSP)
and the Congress, against the BJP’s
Mriganka Singh in the Kairana bypoll, is
possibly the biggest disappointment for
the saffron party. That it comes after the
BJP lost the Gorakhpur and Phulpur
bypolls—seats won by Uttar Pradesh
Chief Minister Yogi Adityanath and his
deputy Keshav Prasad Maurya in the
2014 Lok Sabha elections—to the
alliance between arch rivals SP and BSP
only proves that the saffron party needs
to recalibrate its poll strategy in the
state that sent its biggest chunk of MPs
four years ago.
In the eight assembly bypolls—
Noorpur (UP), Jokihat (Bihar), Silli and
Gomia (Jharkhand), Shahkot (Punjab),
Maheshtala (West Bengal), Tharali
UNI

27. soned, even wily, politicians and are not
open to the idea of negotiating with her
son who they still see as incapable of
outmanoeuvring the Modi-Shah duo.
Whether the volatile mahagathbandhan
will actually succeed in taking on the
BJP in 2019 is hard to predict. Another
Congress leader who was part of the
party’s process of firming up the alliance
with HD Deve Gowda’s JD (S) in Karna-
taka last month told India Legal: “In a
by-election, having a united Opposition
candidate is easy because the decision is
just about one or two seats. In a general
election though, the Congress will need
to give up its claim on a lot many seats
which would mean pacifying as many of
our own ticket aspirants. For 80 seats in
Uttar Pradesh, there are already four
parties—SP, BSP, Congress and RLD—
and in many constituencies we feel our
chances of victory are as bright as the
other party. Similar situation will arise
in states like Maharashtra, Madhya
Pradesh, Telangana, Tamil Nadu, Assam
and Andhra Pradesh.”
BSP supremo Mayawati, who would
need to be kept happy if the mahagath-
bandhan experiment were to succeed in
Uttar Pradesh and parts of other north
Indian states in 2019, recently made it
clear that her party would go solo in the
polls if it isn’t given a “respectable share
of seats”. Mayawati’s statement came
after her very public display of affection
towards Sonia Gandhi during the swear-
ing-in ceremony of HD
| INDIA LEGAL | June 11, 2018 27
(Uttarakhand), Ampati (Meghalaya)—
the BJP’s performance was even worse.
The party managed to retain only the
Tharali seat, though by an abysmal mar-
gin of just 1981 votes. It would not be
lost on Modi that the defeat of BJP can-
didates in Kairana and Bhandara-
Gondiya seats has now brought his
party’s tally in Lok Sabha below the
majority mark of 272 against the 282
seats that it had won in May 2014.
The bypoll results throw up a para-
dox—though the BJP’s victory march in
general elections to provincial assem-
blies has largely continued unbridled
since 2014, the saffron party has failed
to retain its seats—even traditional bas-
tions like Gorakhpur (UP) and
Gurdaspur (Punjab)—in Lok Sabha by-
elections. As such, it is premature to
predict whether the bypoll results are in
any way a referendum against the Modi
regime or a template for what will hap-
pen in the 2019 Lok Sabha polls but the
successive failures of the saffron party to
retain its seats should be a cause of con-
cern for the Prime Minister.
What would possibly be giving Modi
and Shah sleepless nights since the
bypoll result on May 30 is the fact that
just as the Opposition parties are bury-
ing their differences to come together
for a mahagathbandhan to take on the
BJP, the NDA coalition led by the BJP
is imploding.
The BJP’s defeat in Kairana, and in
Gorakhpur and Phulpur before that,
shows that the Opposition leaders have
surrendered to the reality that they must
close ranks in order to stop the Modi-
Shah juggernaut.
A
senior Congress leader, who is
among a team of party veterans
roped in by UPA chairperson
Sonia Gandhi to begin seat-sharing talks
with potential allies for the 2019 Lok
Sabha polls, told India Legal on the con-
dition of anonymity: “Opposition lead-
ers realise that rivalries, ideological dif-
ferences, personal ambitions can all be
dealt with later. The priority right now
is to work for the bigger goal—dethrone
Modi. We know that in the long run, a
grand coalition will only weaken our
own base among voters as we will have
to cede maximum ground to keep the
allies happy but then, as things stand
today, we face the threat of losing what
we have left if we don’t unite with other
like-minded Opposition parties.”
Congress sources say that the party’s
efforts to build a grand coalition is being
supervised by Sonia Gandhi and not
party president Rahul Gandhi because
the former shares a greater camaraderie
with Opposition leaders who are sea-
Twitter
ItwouldnotbelostonModithatthe
defeatofBJPcandidatesinKairanaand
Bhandara-Gondiyaseatshasnow
broughthisparty’stallyinLokSabha
belowthemajoritymarkof272.
BJP LOSING
SHINE
(L - R) UP Chief
Minister Yogi
Adityanath cam-
paigning for the
Noorpur assem-
bly seat; RLD’s
Tabassum Hasan
won the Kairana
Lok Sabha seat

28. 28 June 11, 2018
Kumaraswamy as Karnataka chief min-
ister—an occasion that saw over a dozen
Opposition leaders share the stage to
give a glimpse of what the grand
alliance could look like.
The Congress is also exploring the
possibility of forming the sort of
alliances which until now were the forte
of Amit Shah—that of reaching out to
fringe regional parties in states where
these outfits can swing polls in a hand-
ful of seats. For instance, the Bahujan
Vikas Aaghadi (which finished third in
the recent Palghar bypolls by garnering
a robust 2.22 lakh votes) and Prakash
Ambedkar’s Bharipa Bahujan
Mahasangh—both in Maharashtra. In
assembly polls that happened across
over a dozen states since 2014, Shah had
mastered the art of aligning the BJP
with such regional players in a bid to
inflate the BJP’s vote share. But, like too
many cooks spoiling the broth, the
Congress knows that many alliance
partners would mean that many more
egos to massage and seats to spare—a
chance Sonia and Rahul seem willing to
take as of now.
The BJP-led NDA coalition appears
an image in stark contrast. Take, for
example, the Lok Sabha bypoll in
Palghar or the assembly by-election in
Silli and Gomia seats of Jharkhand. In
these elections, victory largely evaded
the BJP because its allies—the Shiv Sena
in Maharashtra and the All Jharkhand
Students Union (AJSU) in Jharkhand—
parted ways to field their candidates
against the saffron party nominees.
T
hough the BJP won Palghar, it
was evident that the split with
the Shiv Sena had cost it dear.
Sena chief Uddhav Thackeray has
already declared that his party would
not contest polls in alliance with the
BJP from now on—a decision that could
hurt the BJP’s chances of victory in over
two dozen Lok Sabha seats of Maha-
rashtra. It may be noted that after Uttar
Pradesh, Maharashtra sends the largest
chunk of MPs—48—to the Lok Sabha
and the BJP would ill-afford a split in its
alliance while the Congress and Sharad
Pawar’s NCP bury their hatchet.
In Uttar Pradesh, the BJP’s challenge
is far greater. If the grand alliance of
Congress, SP, BSP and RLD actually
holds in 2019, the state known for its
caste-based politics, would give the
Opposition a formidable vote-bank of
Muslims, Yadavs, Dalits, Jats and other
sub-castes among the backward com-
munities. This would even make Modi
shiver, perhaps enough to have him flee
from Varanasi and look for a safer seat
in some other state, if not send him
packing back to Gujarat.
The BJP had contested and swept
the Uttar Pradesh assembly polls on
Modi’s popularity. The Modi-Shah duo
was literally arm-twisted by Adityanath
into naming him the chief minister. But
as the results in Gorakhpur, Phulpur,
Kairana and Noorpur have shown—nei-
ther Modi nor Adityanath’s rabid
Hindutva is proving to be a poll winner
in UP any more.
The writing on the wall is abundant-
ly clear for the Modi-Shah duo: a united
Opposition, juxtaposed with the fissures
within the NDA citadel, has the where-
withal to stop the saffron juggernaut in
its tracks and kill their dream of return-
ing to power at the centre next year.
The countdown for 2019 has now truly
begun and saffron certainly is losing
its sheen.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
TheBJP’sdefeatinKairana,Gorakhpur
andPhulpurbeforethat,showsthatthe
Oppositionleadershavesurrenderedto
therealitythattheymustcloseranksto
stoptheModi-Shahjuggernaut.
Politics/ Bypoll Results
UNI

29. The Tamil Nadu gov-
ernment directed
the state pollution con-
trol board to close the
Ster-lite copper plant in
Tuti-corin, after 13 peo-
ple died in police firing
on a march held for the
closure of the plant.
The order to shut the
plant, which is owned by
the Vedanta group, was
passed “in the larger
public interest” under
the Water (Prevention
and Control of Pollution)
Act, 1974.
Chief minister
Edappadi K Palani-
swami of the AIADMK
said the decision was in
deference to the senti-
ments of the people.
Soon after the order was
issued, Tuticorin district
officials sealed the
smelter unit premises.
The smelter plant
had been closed since
March 27. On May 23, a
day after the police fir-
ing, the Madurai Bench
of the Madras High
Court had also stayed
the expansion of the
smelter plant.
| INDIA LEGAL | June 11, 2018 29
Briefs
The centre appointed Justice RK
Agrawal, who retired from the
Supreme Court earlier this month, as
president of the National Consumer
Disputes Redressal Commission
(NCDRC), which is the apex consumer
complaints authority in India. Justice
Agrawal will follow Justice DK Jain, who
retires on May 31. Justice Agrawal gradu-
ated in law from Allahabad University
and enrolled as an advocate in 1976. He
was elevated as permanent judge of the
Allahabad High Court in 1999 and later
went on to become the chief justice of
Madras High Court. Appointed to the
Supreme Court in February 2014, he
served on the bench for four years.
Justice RK Agrawal new
NCDRC president
An elderly Kolkata couple who have
visited every football World Cup
since 1982 will again greet the tourna-
ment in Russia this year—for their tenth
and perhaps last time.
Pannalal, 85, and his wife Chaitali
Chatterjee, 76, are passionate lovers of
the game. They have made several sacri-
fices over the years to attend every World
Cup since Spain, where they first enjoyed
Paolo Rossi’s predatory skills.
“I will be nearing 90 in 2022 and
there's little hope that we would make it
to Qatar for the next edition,” an emo-
tional Pannalal told PTI.
The couple have bought three World
Cup tickets and will leave for Russia this
month. They have also written to the
Russian Consulate and the FIFA
Organising Committee requesting more
tickets on passionate grounds.
The FIFA local organising committee
during the Under-17 World Cup last year
had made them special guests in every
match, including the final in Kolkata.
Elderly couple gears up for
football World Cup
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by Kuwar Singh
TN government shuts down Sterlite
plant after 13 deaths
In his first decision on a mercy
petition, President Ram Nath
Kovind has refused to commute the
death sentence of a murder convict.
Jagat Rai was convicted of killing
five children and their mother in
2006 by setting their house on fire
at night in a village in Bihar. The
state, incidentally, was also the seat
of Kovind’s previous political assign-
ment as governor.
In September 2013, the Supreme
Court upheld Rai’s death sentence on
the ground that the crime committed
qualified as one among the “rarest of
rare” cases.
Former president Pranab Mu-
kherjee decided on 34 mercy pleas,
rejecting 30 of them. His record is
second only to President R
Venkataraman (1987-92), who
declined 45 mercy pleas.
Mukherjee’s predecessor Pratibha
Patil, on the other hand, commuted
death sentences in 34 mercy pleas
and rejected five.
Congress leader Sajjan Kumar on
June 27 took a lie-detector test in
connection with the 1984 anti-Sikh
riots. The test was conducted at the
Central Forensic Science Laboratory of
the Central Bureau of Investigation in
New Delhi.
A Delhi court had ordered the poly-
graph test on May 14 after obtaining
Sajjan’s consent. He reportedly said
that he would be willing to undergo
the test either in India or abroad and
would also bear its expenses.
The CBI had also wanted to bring
Congress politician Jagdish Tytler and
arms dealer Abhishek Verma under the
polygraph test. But Tytler refused to
undergo the test.
Sajjan Kumar takes lie-detector test in 1984 riots case
PresidentKovind
refuseshisfirst
mercypetition

30. Focus/ Patent Infringements
30 June 11, 2018
N March 2012, Indian drug firm
Natco Pharma was granted the first
ever compulsory licence for the
production of Nexavar, a drug used
to treat liver and kidney cancer.
The licence was granted on two
grounds—availability and affordability.
While a month’s supply of the original
medicine from Germany’s Bayer
Corporation cost around `2.8 lakh,
Natco Pharma made it accessible to all
by ensuring a similar supply for approxi-
mately `9,000. The licence was granted
on the condition that Natco Pharma
provides a quarterly account of sales to
the authorities. However, a query raised
before the Controller General of Patents,
Designs, Trademarks and Geographical
Indications (CG) revealed that no such
details were available.
In India, patent infringements are
the rule rather than the exception and
Patenteesandlicenceesfloutrulesbydeliberatelyevadingcriticalinformationonapatent’s
commercialworkingwhileapplyingfortrademarks,buthardlyanyactionistakenbyauthorities
By Lilly Paul
Right to Deceive
IRANK OPPORTUNISM
Patents can have a dramatic
impact on access to medicines
when they are used to
prevent competition
fhcindia.com

31. | INDIA LEGAL | June 11, 2018 31
seldom anyone files a case highlighting
the defects in the granting of patents
and trademarks. But that is precisely
what Professor Shamnad Basheer, a
legal academician, did in 2015 when he
filed a writ petition in the Delhi High
Court against defaulting patentees and
licencees, who do not furnish informa-
tion about the patent’s commercial
working. He also blamed the Indian
Patent Office for not taking action
against them.
A perusal of the Annual Report
(2012-13) of the Office of the CG shows
that out of the 43,920 patents granted
that year, 27,946 of them submitted
Forms (Form-27) as required by Section
146 and Rule 131. But the fact that only
6,201 patents were found to be commer-
cially working in India shows that nei-
ther the Patent Office nor the patentees
even follow the general principles of law.
The Delhi High Court recently
ordered that the CG’s office place a
report before it upon completion of
draft amendment to Rule 131 of the
Patents Rules, 2003, the Form 27 pre-
scribed therein. The office of CG sub-
mitted a timeline before the bench of
Justice C Hari Shankar on its course of
action—from inviting stakeholders’ sug-
gestions to sending the draft of amend-
ed Form 27 to the law ministry, an exer-
cise that is expected to take a year.
Form 27 is where statements are fur-
nished by patentees and licensees, under
sub section 2 of Section 146 of the
Indian Patents Act, at the time of seek-
ing a patent right. Section 146 (2) of the
Indian Patents Act instructs the patent
holders to furnish information related to
the extent to which an invention has
commercially worked in the country. It
states that “every patentee and every
licencee (whether exclusive or other-
wise) shall furnish in such manner and
form and at such intervals (not being
less than six months) as may be pre-
scribed statements as to the extent to
PATENT POSITION
The India Patent Office in Delhi;
(right) The US Patent and Trademark Office
IndianControllerofPatentsForm27FilingData(2010-2016)
1 Year121 Patents in
Force
Form 27
Filed
No Form 27
Filed
% Forms
Missing
Reported as
Working
2009-10 37,334 24,009 13,325 35.7 4,189
2010-11 39,594 34,112 5,482 13.8 6,777
2011-12 39,989 27,825 12,164 30.4 7,431
2012-13 43,920 27,946 15,974 36.4 6,201
2013-14 42,632 33,088 9,544 22.4 8,435
2014-15 43,256 31,990 11,266 26.0 7,900
2015-16 44,524 39,507 5,017 11.3 8,589
Source:NYU Journal of IP & Ent Law121-Indian Patent Office reporting year (Apr. 1 - Mar. 31)

32. Focus/ Patent Infringements
32 June 11, 2018
which the patented invention has been
worked on a commercial scale in India”.
Under Section 122 (b) of the Patents
Act, failure to supply information will be
punishable with fine up to `10 lakh. “If
no information is given in Form 27 and
there is a request for compulsory licenc-
ing, how would the Cont-roller know
whether the mentioned patent is being
worked or not,” a senior official working
with the Indian Patent Office told India
Legal on condition of anonymity.
The concept of compulsory licence is
that the government authorises a third
party to make, use or sell a product that
has been patented, without the need to
get permission of the patent owner.
Section 84 of the Patents Act states that
any interested person may make an
application to the Controller for grant of
compulsory licence, any time after the
expiration of three years from the date
of the grant of a patent, on any of the
following grounds:
(a) That the reasonable requirements of
the public with respect to the patented
invention have not been satisfied;
(b) That the patented invention is not
available to the public at a reasonably
affordable price;
(c) That the patented invention is not
worked in the territory of India.
So is compulsory licencing a viola-
tion of the rights of the patent holder?
Advocate Sreenath Namboodiri, Fellow,
Centre for Economy, Development and
Law, Kerala, disagrees. “Patent right is
not an inherent right such as human
rights; instead it is a state-granted right
appreciating an inventor’s ingenuity.
Such ingenuity is never exclusive, rather
it develops through various factors. It is
fed by the earlier inventions in that
field,” said Namboodiri.
B
asheer had also presented an RTI
query checking whether action
had been taken against those
patentees or licencees who had not sub-
mitted Form 27.
It was revealed that no action had
been taken against the defaulters. Many
patentees, such as Telefonaktiebolaget
LM Ericsson, had stated in the Form,
instead of furnishing information, that
“as all the licences are confidential in
nature, the details pertaining to the
same shall be provided under specific
directions from the Patent Office”.
On why no action has been taken
against defaulters, a senior official with
the Indian Patents office said: “If we
receive a complaint regarding a person
not filing information under Form 27,
we will take action. But we haven’t
received any complaints so far.”
A paper titled, “Patent Working
Requirements And Complex Products”,
published in the Journal of Intellectual
Property and Entertainment Law by
New York University studied the find-
ings of Prof Basheer. An Annual Report
is published by the Controller on statis-
tics related to patent-filings. The data
FLAGRANT VIOLATION
Mobile companies have been particularly
ingenious in evading patent queries
Actualvs.RequiredForm27Filings,byyear
(basedonnumberofmobiledevicepatentsinforce)
4000
3000
2000
1000
0
2009 2010 2011 20162015201420132012
Forms Filed Forms should have been filed
Source: NYU Journal of IP & Ent Law
Anil Shakya