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India Legal 12 November 2018

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The New Offensive
Facing a rebuff from the Supreme Court, the Sangh Parivar is pressing for an extra-legal resolution to the divisive and electorally sensitive Ayodhya dispute before the 2019 elections. Can it succeed?

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India Legal 12 November 2018

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com November12, 2018 TheNewOffensiveFacingarebufffromtheSupremeCourt,theSanghParivarispressingforan extra-legalresolutiontothedivisiveandelectorallysensitiveAyodhyadispute beforethe2019elections.Canitsucceed? Professor Upendra Baxi: Defamation and the media Yogi Adityanath: Renaming spree
  2. 2. CTUALLY, Prime Minister Narendra Modi’s political party needs no external icon in order to give itself more credi- bility or acceptability. The Bharatiya Janata Party already had enough going for it: an attractive acronym—“BJP”; a charismat- ic former poet-prime minister, Atal Bihari Vaj- payee; a vote-catching orator, Madison Square rockstar current PM; an ostensibly post-Nehru- vian-socialism economic ideology of laissez faire supply side economics; a catchy slogan, “party with a difference”. So why in heavens does it need Sardar Patel, the party’s ideological nemesis and a close friend and ally and staunch Congress col- league of the BJP’s bête noire Jawaharlal Nehru? Modi has just inaugurated with ecstatic fan- fare the mostly made-in-China 182-metre “Statue of Unity”—the tallest in the world—of Patel. Sym- bolically, Patel now becomes the political patron saint of the BJP. The idea seems to be to appro- priate this iconic administrator and indefatigable freedom fighter, who was also a Gandhian nation- alist, as a symbol of the BJP’s roots in the nation- al struggle for freedom, and give real flesh and blood to its modern “nationalist” agenda. Sadly, no matter how many statues it erects or textbooks it changes, it cannot erase history. Its antecedents are indelible. The forebearers of the BJP did not participate in the Quit India move- ment. In fact, Patel as home minister banned the RSS following Gandhi’s assassination in 1948. The BJP, however, tends to overlook this fact and stresses, rather, the welcome words addressed by Patel shortly after Independence in a speech deli- vered in Lucknow on January 6, 1948. Inviting the Sangh to join the Congress main- stream, Patel intoned: “In the Congress, those who are in power feel that by the virtue of author- ity they will be able to crush the RSS. You cannot crush an organisation by using the danda. The danda is meant for thieves and dacoits. They are patriots who love their country. Only their trend of thought is diverted. They are to be won over by Congressmen, by love.” Three weeks later, Gandhi was shot dead by Nathuram Godse, associated with the extreme Hindutva right-wing. Patel completely changed his views on the RSS. According to journalist Durga Das, on July 18, 1948, Patel wrote to Dr Syama Prasad Mukherjee, who later founded the Bharatiya Jana Sangh: “As regards the RSS and the Hindu Mahasabha… our reports do confirm that, as a result of the activities of these two bod- ies, particularly the former (RSS) an atmosphere was created in the country in which such a ghast- ly tragedy became possible.” H istorian Desraj Goel also quotes a September 11, 1948, letter from Patel to Guru Golwalkar, RSS supreme leader, following his release from jail in the aftermath of Gandhi’s assassination. Every line is worth remembering as India celebrates the inauguration of the Statue of Unity: “Aurangzeb Road, “New Delhi,11th Sept. 1948 “Brother Sri Golwalkar, “Received your letter dated 11th August. Jawaharlal has also sent me your letter of the same date. “You are very well aware of my views on the RSS. I have expressed these thoughts at Jaipur in December last month, at Lucknow in January. The people had welcomed those views. I had hoped that your people also would accept them. But they appear to have no effect on the RSS per- sons, nor was there any change in their pro- grammes. There can be no doubt that the RSS did service to the Hindu Society. In the areas where there was the need for help and organisa- tion, the young men of the RSS protected women and children and strove much for their sake. No person of understanding could have a word of DESPERATELY SEEKING CONGRESS Inderjit Badhwar Letter from the Editor A 4 November 12, 2018 Nomatterhowmany statuestheBJP erectsortextbooks itchanges,itcannot erasehistory.Its antecedentsare indelible.The forebearersofthe BJPdidnot participateinthe QuitIndia movement.Infact, Patelashome ministerbannedthe RSSfollowing Gandhi’sassassina- tionin1948.The BJPtendsto overlookthisfact.
  3. 3. PrimeMinister NarendraModihas inauguratedwith ecstaticfanfarethe 182-metre“Statue ofUnity”ofPatel. Symbolically,Patel nowbecomesthe politicalpatronsaint oftheBJP.Theidea seemstobeto appropriatehimas asymbolofthe BJP’srootsinthe nationalstrugglefor freedom,andgive realfleshand bloodtoitsmodern “nationalist” agenda. | INDIA LEGAL | November 12, 2018 5 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com objection regarding that. But the objectionable part arose when they, burning with revenge, began attacking Mussalmans. Organising Hindus and helping them is one thing but going in for revenge for its sufferings on innocent and helpless men, women and children is quite anoth- er thing. “Apart from this, their opposition to the Congress, that too of such virulence, disregarding all considerations of personality, decency or deco- rum, created a kind of unrest among the people. All their speeches were full communal poison. It was not necessary to spread poison and enthuse the Hindus and organise for their protection. As a final result of the poison, the country had to suf- fer the sacrifice of the valuable life of Gandhiji. Even an iota of sympathy of the Government or of the people no more remained for the RSS. In fact the opposition grew. Opposition turned more severe, when the RSS men expressed joy and dis- tributed sweets after Gandhiji’s death. Under these conditions it became inevitable for the Government to take action against the RSS. “Since then, over six months have elapsed. We have hoped that after this lapse of time, with full and proper consideration the RSS persons would come to the right path. But from the reports that come to me, it is evident that attempts to put fresh life into their same old activities are afoot. I once again ask you to give your thought to my Jaipur and Lucknow speeches and accept the path I had indicated for the RSS. I am quite cer- tain that therein lies the good of the RSS and the country and moving in that path we can join hands in achieving the welfare of our country. Of course, you are aware that we are passing through delicate times. It is the duty of every one from the highest to the lowliest in this country to con- tribute his mite, in whatever way possible, to the service of the country. In this delicate hour there is no place for party conflicts and old quarrels. I {am} thoroughly convinced that the RSS men can carry on their patriotic endeavor only by joining the Congress and not by keeping separate or by opposing. I am glad that you have been released. I hope that you will arrive at the proper decision after due consideration of what I have said above. With regard to restrictions imposed upon you I am in correspondence with the CP Government. I shall let you know after receiving their reply. “Yours (SD.) VALLABH BHAI PATEL” All who now gaze upon PM Modi’s Statue of Unity must surely ponder the ironies it evokes. UNI SEEKING SARDAR’S BLESSINGS? Prime Minister Narendra Modi at the site of the “Statue of Unity” in Gujarat on October 31, 2018
  4. 4. ContentsVOLUME XI ISSUE52 NOVEMBER12,2018 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editors Prabir Biswas Puneet Nicholas Yadav Associate Editor Sucheta Dasgupta Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 6 November 12, 2018 Battle of Ayodhya With the Supreme Court deferring the title suit hearing, demands by the Sangh Parivar for legislative intervention to build the Ram Mandir acquire dangerous momentum LEAD 12 Holy Smoke A PIL filed cites recent cases of “holy men” committing sexual offences against women to seek implementation of Vishakha guidelines in ashrams, madrasas and other religious institutions SUPREMECOURT 18 Quack Factories For the second time, the top court has dealt a severe blow to the greedy managements of mushrooming but illegal private medical colleges in Kerala 20
  5. 5. Roadblock to Heaven REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com | INDIA LEGAL | November 12, 2018 7 Cover Design: ANTHONY LAWRENCE Cover Photo: UNI Ringside............................8 Courts ...............................9 Delhi Durbar ...................10 International Briefs..........37 Media Watch ..................49 Satire ..............................50 The prime minister’s much-touted Char Dham project runs into rough weather as the Supreme Court stays a green tribunal order which okayed it 46 Delhi’s Dark Days As Diwali nears, the top court has cracked down on polluters in the National Capital Region, but long-term measures are needed to clean the toxic air 30 ENVIRONMENT SPOTLIGHT Chief Justice Ranjan Gogoi’s tenure as patron-in-chief of the National Legal Services Authority could herald some long-due reforms in this prom- ising scheme 38Needed, Aid Infusion Browbeating the Judiciary The Rajasthan High Court has fined insurance company ICICI Lombard `10 lakh for impleading several judges in a case 28 Rethinking Defamation 40 In the light of numerous cases being filed against the media today, is it time to consider whether this law is at all relevant seeing as it curbs dissent and free expression? COLUMN Know Your Enemy 42 With the advent of the internet, cyber crimes have increased. Victims need to know that they should file a complaint fast so that the stalker is arrested Lot’s in a Name 44 The Uttar Pradesh government’s move to rename places and monuments betrays its communal tilt and its need to exploit Hindutva sentiments for political dividends Storm in Serendip President Maithripala Sirisena has sworn in pro-China strongman Mahinda Rajapaksa as prime minister, raising India’s concerns 34 GLOBALTRENDS FOCUS STATES The Third Sin A bench upheld an Orissa High Court order disqualifying a sarpanch for having a third child though he gave the first for adoption 22 Challenge as Compulsion The apex court has vetoed the Kerala government’s call that emplo- yees donate a month’s pay for flood relief or else sign a no-consent 24 Gift Certificates The top court agrees with the Kerala High Court’s decision that a gift is complete only upon compliance with the conditions in the deed 26 COURTS
  6. 6. 8 November 12, 2018 “ RINGSIDE “We did not invoke Section 7 in 1991 or 1997 or 2008 or 2013. What is the need to invoke the provision now? It shows that govern- ment is hiding facts about the economy and is desperate.” —Former Finance Minister P Chidam- baram on the govern- ment referring to Section 7 of the RBI Act for the first time “Due to circum- stances beyond my control, I shall not be joining Ahmeda- bad University. I wish AU well....” —Historian and author Ramachandra Guha on Twitter, after the ABVP opposed the Ahmeda- bad university’s deci- sion to hire him “...When you’re done huffing & puffing take a breath & hold a mirror to your- selves. My views are mine. I don’t give two hoots about yours. I’m not going to clar- ify what I meant....” —Congress’s Divya Spandana on Twitter after her comment on a picture of Modi with the “Statue of Unity” triggered a backlash on social media “...Women themselves are aware when there are restrictions, they know when to go to a temple and when they should not go… they have been keep- ing these (restric- tions) for millions of years....” —Union Minister Uma Bharti on the controversy over women’s entry to the Sabarimala Temple “The ruling BJP has indulged in so many scams and corruption that...I got confused....In Panama Papers leak case, MP chief minister has no role.” —Congress presi- dent Rahul Gandhi after alleging that MP CM Shivraj Singh Chouhan's son was involved in the Panama Papers “If we had asked him (Sardar Patel) if he wanted a statue in his name, he would have said no. He grew up in a humble back- ground. He under- stood the value of money.” —Dhirubhai Patel, the grandnephew of Sardar Patel, on the “Statue of Unity” “I don’t know how far it’s true, but the recent reports of harassment has (sic) really made the BCCI look very poor- ly….more so the way it has been handled….” —Former cricket cap- tain Sourav Ganguly in an email to BCCI office-bearers on sex- ual harassment alle- gations against BCCI CEO Rahul Johri “As long as there was a Hindu ruler in Jammu and Kashmir, both Hindus and Sikhs were living safely. However, soon after the kingdom ended, the Hindu community witnessed a downfall. What is the condi- tion now in Kashmir? Can Hindus, Sikhs living there say the same thing now (that the Valley is still peaceful)? Absolutely not....” — UP Chief Minister Yogi Adityanath at a Sikh community event in Lucknow
  7. 7. SC to welcome visi- tors in guided tour Six decades after it commenced functioning from the present bui- lding, the Supreme Court has ope- ned its doors to visitors for guided tours, which will be conducted every Saturday. CJI Ranjan Gogoi launched a web portal through which citizens can book a one-hour guided tour of the apex court. At present, only lawyers, law interns, law students, litigants and mediapersons are allowed inside the court. The tour will start from the main lawns within the court precincts and will include a trip to courtroom number one, the chief justice’s court, the judges’ library and the court museum. Thirty-one years after the Hashimpura massacre near Meerut in Uttar Pradesh, the Delhi High Court reversed a trial court acquittal order and sentenced 16 former personnel of the Provincial Armed Constabulary (PAC) to life imprisonment. The PAC officers were accused of rounding up 42 Muslim youths from Meerut’s Hashimpura locality, escorting them to the outskirts of the city in an official vehicle, and then gunning them down. Calling the actions of the PAC personnel on May 22, 1987, “brutal and bone-chilling”, a bench of Justices S Muralidhar and Vinod Goel said: “This case points to the systemic fail- ure that results, not infrequently, in miscar- riage of justice.” The petitions in the Delhi High Court were filed in appeal against a trial court verdict which had, on March 21, 2015, acquitted the 16 former PAC person- nel, citing lack of evidence. 16 cops get life for Hashimpura massacre | INDIA LEGAL | November 12, 2018 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team The chief justices of four high courts, Justices MR Shah, Ajay Rastogi, Hemant Gupta and R Sub- hash Reddy, were sworn in as judges of the Supreme Court. Justice Shah is cur- rently the chief justice of the Patna High Court; Just- ice Rastogi, the Tripura High Court; Justice Gupta, the MP High Court; and Justice Reddy, the Gujarat High Court. The appoint- ments have been made as Justices Kurien Joseph and MB Lokur are set to retire in November and Decem- ber, respectively, and Justice AK Sikri will retire in March 2018. The appointment of the four new judges will take the Supreme Court’s current working strength to 28 judges, as against the sanctioned strength of 31. The Supreme Court cautioned state governments and high courts for not taking adequate steps to fill vacancies in the subordinate judiciary across the country. A bench headed by CJI Gogoi said: “If any High Court can't do it, we will do it. We will have a centralised system. If you don't want us to do it, then you do it.” The top court directed the registrar generals of several high courts to be present at the next date of hearing on November 15. States slammed for judicial vacancies The Supreme Court directed the centre to furnish pricing details of the 36 Rafale fighter aircraft being purchased from France, in a sealed cover, within 10 days. A three-judge bench headed by CJI Ranjan Gogoi said: “The court would also like to be apprised of the details with regard to the pricing/cost, particularly, the advantage thereof, if any, which again will be submit- ted to the court in a sealed cover.” The bench also made it clear that “details in this regard which may be considered to be strategic and confidential may, at this stage, be placed before the court and may not be furnished to the learned counsel for the par- ties or the petitioners-in-person”. The extant order is in addition to the Supreme Court’s earlier directive to the centre to share details of the decision-making process that led to the award of the Rafale deal to Dassault Aviation, which has Anil Ambani’s Reliance Defence as its offset partner for the deal. The centre had last week filed the papers concerning the decision-making process with the Supreme Court’s registry in a sealed cover. Four judges elevated to Supreme Court Submit pricing details on Rafale: SC Courts
  8. 8. Actor and self-proclaimed “Modi chamcha”, Anupam Kher has often hit out at former Prime Minister Dr Manmohan Singh. It thus came as a surprise that the actor, who recently resigned as chairman of Pune’s FTII, was full of praise for Modi’s predecessor. Kher’s comments came after he wrapped the shoot for The Accidental PM, a movie in which he plays Dr Singh. One assumes that Kher studied the tenure of the former PM closely and didn’t rely on accounts narrated by BJP leaders (his wife Kirron is a BJP MP). Kher admitted: “I did have my reservations before doing this film and also wrongly judged you (Dr Singh) at times but today after finishing the shoot and having almost lived the role for more than a year I can say with utmost sincerity that history will not mis- judge you.” While the movie may have turned Kher into an Accidental Fan of Dr Singh, his com- ments left his saffron brethren seething, calling him a traitor on Twitter. 10 November 12, 2018 An inside track of happenings in Lutyens’ Delhi THE ACCIDENTAL FAN The chaos that the government has sunk the CBI into is likely to aggravate in the coming months. The Supreme Court, on November 25, is expected to hear the petitions filed by CBI director Alok Verma and special director Rakesh Asthana chal- lenging the govern- ment’s decision to divest them of all responsibilities and appoint M Nages- wara Rao as the agency’s interim chief. Power corridors are already buzzing with rumours on how the government will choose Verma’s suc- cessor once his legally secure two- year tenure ends on January 18. The collegium to appoint the CBI director comprises the Prime Minister, Chief Justice of India, Leader of Oppos- ition and takes the decision after names in the panel of officers shortlisted for the post are vetted by the Chief Vigilance Commissioner. The CVC, KV Chowdary (far left), is also in the eye of a political storm for allegedly perpetuating the cur- rent crisis in the CBI, under pressure from the government. The process of appoint- ing a full-time CBI chief would have ideally begun by December and had the current crisis not hit the agency, Asthana would have got the post, given Modi and Amit Shah’s “faith” in him. Now, sources say that the Congress, which would have been represented in the collegium by Mallikarjun Kharge (left) in his capacity as the leader of the largest Opposition party in the Lok Sabha, will either boycott any discussion to select the next CBI chief or try to block any name put forward by the government. Sources say Asthana is already out of the race but Modi will also not be able to keep the CBI under an interim chief indefinitely. The conundrum is made more complex by the fact that given the current mess, any officer proposed by the centre for the role will be looked at with suspicion. The fallout from the implosion at India’s elite investigating agency is spreading its toxicity. The backstory to the crisis is that Alok Verma’s appoint- ment as CBI chief was pushed by NSA Ajit Doval with Modi going along with it. Now, the PM is reportedly miffed with Doval. Then there is retired judge Justice AK Patnaik, appointed by the Supreme Court to supervise the probe into the CBI. Within hours of his appointment, he was getting calls from people close to the powers that be, attempting to influence the probe. The bigger embarrassment, however, is to do with interim chief Nageswara Rao (above). The fact that an IG-level offi- cer was chosen for the first time to head the CBI raised eyebrows as did his first move, to transfer 13 officers loyal to Verma, but ghosts are return- ing to haunt him. He has issued a statement saying his wife did not com- mit any financial irregularities, one of the many charges against him, but the Odisha-cadre IPS officer cannot deny that in 1998, as vice-chairman of the Berhampur Development Authority, he was accused of making a communally inflammatory speech, saying that the authors of the Indian Constitution were “pro-minority”. Then, at a public func- tion, an Odiya newspaper quoted Rao as saying: “Christians and Muslims give primacy to their religion over the nation. Taxes collected from Hindus getting deployed for the benefit of minorities is a violation of human rights.” These and other statements form part of a petition filed in the apex court objecting to Rao’s appointment. The petition mentions that when com- plaints piled up about his communal views, he was posted out immediately. Rao is said to be close to Ram Madh- av, the influential RSS leader, a rela- tionship that may have something to do with his unprecedented elevation. TOXIC FALLOUT UNCAGED PARROT
  9. 9. | INDIA LEGAL | November 12, 2018 11 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Delhi Durbar There is something about God’s Own Country that brings out the worst in the BJP’s top two: Prime Minister Narendra Modi and party president Amit Shah. Modi made no friends when at rallies in the run-up to the 2016 Kerala assembly elections, he kept repeating the falsehood about Kerala’s social indices being worse than sub-Saharan Africa, when people with a better grasp of economics, like Nobel Laureate Amartya Sen, have said they are actually on a par with the advanced nations of North Europe. Last week, it was Shah (above right) who was laid low by the foot-in- the-mouth syndrome. With the swag- ger of a gun-slinger, he arrived in the state which is enjoying a brief respite from the Sabarimala tussle and flexed his muscles at the Marxist-led Left government for trying to implement the Supreme Court verdict on allowing women entry into the hill-top shrine. Shah threatened to pull down the duly elected Pinarayi Vijayan (far left) gov- ernment which enjoys a near two- thirds majority in the assembly. The CM wasn’t rattled. He merely taunted Shah by referring to his rotundity and said the BJP chief has to first haul himself up—no easy task, Vijayan emphasised—before trying to pull oth- ers down. He left it at that. But the people of the state, where the coun- try’s first duly elected government was ousted 61 years ago, were incensed. As the outrage grew, the BJP went into damage control mode, with KJ Alphons, the Union minister, blaming a local party leader for faulty speech translation. The Marxists, of course, are having the last laugh as Shah memes go viral. TOP TWO HIT ROCK-BOTTOM With five states going to polls over the next two months, Congress President Rahul Gandhi has been busy address- ing party workers. Among the promises that Rahul has made to party workers is of put- ting a stop to the Congress’ culture of para-dropping candidates and neglecting genuine workers during ticket distribution. Rahul wants the Aya Rams-Gaya Rams to work on strengthening the party for at least five years and then hope to get a ticket. The promise augurs well for party workers but has put the second-rung leadership in a tight spot. Kamal Nath (right) and Sachin Pilot (centre), Cong- ress chiefs in MP and Rajasthan, res- pectively, have been approached by several BJP legislators who fear that their party may not renominate them for the upcoming polls and are look- ing for a Congress ticket, if not in the Assembly then the Lok Sabha polls. Rahul’s stance has made it difficult for Nath and Pilot to give any assurance. Pilot recently orchestrated the induc- tion of former Union minister Jaswant Singh’s son, Manvendra Singh, into the Congress. It was speculated that Manvendra would not be renominated by the BJP. Party sources say that the real test of Rahul’s promise will be in MP, Rajasthan and Telangana. SELECTION PROBLEMS SAFFRON EDUCATION Delhi’s Jawaharlal Nehru University has been the unceasing target of right-wing elements and the government. Its reputa- tion for academic excellence has been undermined by attacks on its leftist-lean- ing student leaders and staff, some physi- cal, and now, the government has turned the screws further by its latest appoint- ments to the staff—Indian-American author and Hindutva ideologue Rajiv Malhotra, former journalist and BJP MP Swapan Dasgupta who wears his saffron on his sleeve, and Subhash Kak, another Indian-American computer scientist. The trio has been appointed honorary profes- sors. Malhotra is known to be a fiery Hindutva activist who retired from entre- preneurship to launch the Infinity Found- ation. In 2015, Malhotra was accused of plagiarism by historian Richard Fox Young. Young accused Malhotra of a lack of aca- demic integrity given his “repeated failure to acknowledge sources”. Malhotra did not deny the charges, instead saying on Twitter that the academic standards demanded by Young were “too high”. In August this year, Malhotra courted contro- versy in the wake of the Kerala floods when he tweeted asking people to donate to help Kerala Hindus. “Christians and Muslims worldwide raising lots of money to help mainly their own ppl & agendas,” Malhotra had tweeted. Kak had issued a letter welcoming Modi’s initiatives, in response to a statement issued by leading South Asian experts at US universities urg- ing Silicon Valley industrialists to be cau- tious about doing business with Modi. Dasgupta is a regular on TV channels, defending the Modi government. The appointments follow a series of allegations levelled against vice chancellor M Jagadesh Kumar by the JNU academic community for flouting norms to get candi- dates close to the Sangh Parivar appoint- ed at the university.
  10. 10. Lead/ Ayodhya 12 November 12, 2018 N a few days, Diwali would have come and gone. Tall claims by gar- rulous leaders of the RSS-BJP com- bine who said that construction of a Ram Mandir at the site of the de- molished Babri Masjid in Ayodhya would commence by Diwali, irrespective of the fate of the title suit’s proceedings in the Supreme Court, have once again fallen flat. However, with the Supreme Court making it clear that resolving the decades-old land dispute in Ayodhya is not its priority, the demand from the Hindu right for building a temple dedi- cated to Lord Rama at his supposed jan- mabhoomi has reached a crescendo. As a desperate BJP seeks a renewed term at the centre and in several states during the forthcoming polls, its leaders have begun aggressively attacking the apex court, with party president Amit Shah himself leading the charge. The Supreme Court’s bench headed by Chief Justice Ranjan Gogoi has def- erred, till January at least, its pro- nouncement on when arguments in the Babri Masjid-Ram Janmabhoomi title Whiletheapexcourthasdeferredhearingofthisdispute,thesaffronbrigadehasaggressively demandedlegislativeinterventiontobuildtheMandirandtherebyenjoythepoliticalspoils By Puneet Nicholas Yadav I The Mandir UPPING THE ANTE Antarrashtriya Hindu Parishad president Praveen Togadia leads a march; (facing page) high security alert in Ayodhya UNI
  11. 11. | INDIA LEGAL | November 12, 2018 13 suit can commence. The matter is un- likely to be resolved before the general election due in April-May 2019. In their misplaced bravado, BJP motor-mouths and their compatriots from the extended parivar of the RSS and Vishwa Hindu Parishad (VHP) have urged Prime Minister Narendra Modi’s government to bypass the litigation pro- cess. They want an ordinance or a law passed by Parliament in the upcoming winter session to facilitate the construc- tion of the Ram Mandir. There is no denying that when it comes to turning an adverse situation to its advantage, the BJP trumps all its political rivals, especially the Congress. The delay in disposal of the title suit should have ideally been a setback for the BJP. Building a Ram Mandir has been the party’s long unfulfilled poll promise. Political expediency during the 2014 Lok Sabha campaign forced the BJP to make only a fleeting mention of the issue in the “cultural heritage” sec- tion of its manifesto. But the absolute majority Modi got in May 2014 embold- ened his brothers-in-arms to make the Ram Mandir a frontline issue soon after the poll results. T he tectonic plates of India’s polit- ical landscape have shifted since then. The BJP no longer appears invincible. The Modi government’s repeated failures on the economic front, undermining of constitutional institu- tions and opaque decision-making have all given the Opposition enough ammu- nition to attack the BJP with. These can be seen in the fracas in the CBI and impropriety in the Rafale deal. And so, it mustn’t surprise any political observer that the BJP, under its electoral Quagmire WhileModihaskeptcharacteristically silentontheCourt’sdecision,hehaslet AmitShah,hisministersandotherSangh Parivarmembersgoonabelligerent blitzkriegagainstthejudicialprocess. File Picture: Firoz Khan Shaifi/patrika.com
  12. 12. pundit, Shah, is assiduously harking back to its “Mandir wahin banayenge” rhetoric. The electoral dividends of this communally polarising slogan are not lost on the Modi-Shah duo. While Modi has maintained his char- acteristic silence on the Supreme Court’s decision, he has allowed Shah, his min- isters and other members of the extend- ed Sangh Parivar to go on a belligerent blitzkrieg against the judicial process. Shah, of course, is cleverer than the rest and is attacking the Court’s Sabarimala verdict instead of specifically addressing the Mandir issue. Days after the Ayodhya hearing was deferred to January, with Chief Justice Gogoi being non-committal as to when the hearings would commence, Shah, on a visit to Kerala, offered his unsolicited advice (or diktat) to the top court. Add- ressing party workers and those oppos- ing the landmark verdict that allowed women to enter the Sabarimala temple, Shah brazenly told the Supreme Court to “take only such decisions that are acceptable to the people”. The BJP’s political rivals have been claiming that the party wants to turn the Sabarimala quagmire into its Ram Mandir issue for southern India and so Shah was playing to the protesters in Lord Ayyappa’s gallery. But the timing of Shah’s message made it clear that he was simultaneously addressing a larger constituency—the Ram bhakts elsewhere in the country. O thers who joined this circus— RSS chief Mohan Bhagwat, BJP MPs Subramanian Swamy, Sanjeev Balyan, Vinay Katiyar, Giriraj Singh and VHP international working president Arun Kumar—were more indiscreet with their belligerence against the due process of law. They variously demanded either an immediate ordi- nance on building the Ram Mandir or legislation to the effect to be passed in the winter session. Giriraj Singh, a Union minister, went to the extent of issuing a veiled threat. He said that “Hindus are running out of patience” on the Ram Mandir issue and that he feared “what will happen if Hindus lose patience”. While calls for an ordinance or legisla- tion may make for good newspaper head- lines, noisy television debate and toxic political pow-wow, executing them isn’t tenable for the government. The reasons for this are many. Any such attempt would strengthen the impression that the Modi government has no respect for judi- cial processes as the title suit is already sub judice. Issuing an ordinance now, when the winter session is less than two months away, would also trigger a bar- rage of criticism from the Opposition. The BJP still doesn’t have a majority in the Rajya Sabha and so, despite its brute strength in the Lok Sabha, it will not be able to have a bill on the issue passed by Parliament. Bringing an ordi- nance or a bill so late into its five-year term will also open the Modi-Shah duo and the BJP to the criticism of using Lord Rama purely for electoral gains. Congress leader P Chidambaram and his party colleagues have already taken this line by asserting that the BJP remembers Ram Mandir only once every five years. Also, the BJP leader- ship has, in its poll manifesto and cam- paigns till 2014, repeatedly said that it would accept the Court’s verdict on the title suit. Further, an ordinance or bill, will be Lead/ Ayodhya 14 November 12, 2018 WhileBJPpresidentAmitShah chosetoattacktheCourt'sverdict onSabarimalainsteadofdirectly addressingtheissue,RSSchief MohanBhagwat(clockwisefrom aboveleft)andBJPMPs SubramanianSwamy,GirirajSingh, VinayKatiyarandSanjeevBalyan havebeenmoreindiscreet.
  13. 13. immediately challenged in the Supreme Court and will most likely be struck down as void. This is because, as per the Acquisition of Certain Area at Ayodhya Act, 1993, the centre is only entitled to be a statutory receiver of the disputed land and must maintain the status quo that existed when this legislation was passed. The Supreme Court, while hear- ing the challenge to the Ayodhya Act, had upheld this status of the centre in the M Ismail Faruqui verdict of October 24, 1994. The Ismail Faruqui verdict is also crucial to the current slugfest as it laid out a problematic and somewhat uncalled for observation: “A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in open... there can be no reason to hold that a mosque has a unique or spe- cial status higher than that of the places of worship of other religions in secular India to make it immune for acquisition by exercise of sovereign or prerogative power of the state…” This was challenged in the Supreme Court and a reference for clarification by a larger (seven-judge) bench was sought on the observation that a mosque was not integral to Islam and hence, not a prerequisite for offering of prayers. However, a three-judge bench headed by then Chief Justice Dipak Misra (days before he demitted office on October 2), upheld the Ismail Faruqui judgment in a 2:1 verdict and refused to refer it to a larger bench. That the apex court up- held the assertion that mosques were not integral to Islam was immediately lapped up by the Ram Mandir cam- paigners and triggered the current demands for an ordinance or legislation to build a temple at the disputed site. These temple votaries also made the mischievous argument that while a tem- ple dedicated to Lord Rama must be made on his birthplace, a mosque that has, even in the Supreme Court’s opinion, no particular relevance in Islam can be demolished and shouldn’t be resurrected. However, those demanding the Ram Mandir skipped that portion of the ver- dict by Chief Justice Misra’s bench which was inconvenient for their cause. The verdict in M Siddiq, which had challenged Ismail Faruqui, said unam- biguously: “The disputed area is vested in the Central government as a statutory receiver with a duty to manage and administer it in the manner provided in the Act maintaining status quo… to take all necessary steps to implement the decision in the suits and other legal pro- ceedings and to hand over the disputed area to the party found entitled to the same on final adjudication made in the suits.” This line makes it clear that the status quo on the disputed land cannot be changed, even by an ordinance or legislation. Surely Modi, Shah and the battery of seasoned lawyers within the central gov- ernment know that there is no way of subverting the legal process to expedite building of the Ram Mandir. So why is the BJP indulging in this charade? The answer lies in political chicanery. A sen- ior BJP leader told India Legal: “We all know that we have to wait for the Sup- reme Court’s verdict and can’t do any- thing at the janmabhoomi until then. Ram Mandir is an emotive issue and if we can convince our voters that the wait for it is nearly over, then all other issues being raked up by the Oppo- sition—Rafale, unemployment, commu- nal violence, notebandi, etc—will become redundant.” A sked if the voters may call the BJP’s bluff, the leader said: “This is all a matter of convincing the people. If the government brings a Bill, we know it will be stalled in the Rajya Sabha and we can then tell the people that while we were ready to even take on the Supreme Court, the anti-Hindu Opposition parties led by the Congress failed them. If an ordinance is brought and struck down by the Court, we will still succeed in reinforcing our intent on building the temple.” Congress leader and senior advocate Kapil Sibal, who got trolled for urging the top court earlier this year to defer the title suit’s hearing till next year but finds himself vindicated by Chief Justice Gogoi’s recent order, believes that the BJP has tied itself in knots. “It is now clear that the BJP only wants to use the Ram Mandir as a vote-winning issue. The Congress has repeatedly said that it wants a legal resolution to the matter, but the BJP has no respect even for the judicial process. It did nothing on its Mandir promise during its earlier TheSupremeCourt’sbenchheadedby ChiefJusticeRanjanGogoihasdeferred, tillJanuary,atleast,itspronouncement onwhenargumentsintheBabriMasjid- RamJanmabhoomititlesuitcanbegin. | INDIA LEGAL | November 12, 2018 15 Anil Shakya
  14. 14. stint at the centre (1999-2004) and has suddenly remembered Lord Rama now after being in power for four and a half years. The people can see through such ploys. You can’t use a fake promise to your advantage indefinitely,” Sibal told India Legal. That the Ayodhya dispute was always a political and not legal one has been clear ever since the saffron front began asserting its electoral ambitions—first in its Jan Sangh avatar and later as the BJP. The Congress party can deny it with all its collective fury and embar- Lead/ Ayodhya CONTEST OF PIETY? Congress president Rahul Gandhi offers prayers at Mahakaleshwar temple, Ujjain 1528: During the reign of Mughal Emperor Babur, a mosque, the Babri Masjid was built in Ayodhya on a site which many Hindus consider the place of birth of Lord Rama. The Babri Masjid was named after Babur. 1853: First recorded violent clashes broke out at the religious site. 1859: The colonial British administra- tion created fences to separate worship places; Muslims were allowed to use the inner court while the Hindus used the outer court. 1949: Idols of Ram Lalla are placed surreptitiously under the central dome. The government proclaimed the site a disputed area and locked the gate. 1950: Gopal Simla Visharad (below) filed the first suit in a Faizabad civil court for rights to perform puja of Ram Lalla. Paramhansa Ramachandra Das also filed a suit for continuation of puja and keeping idols in the structure. 1959: Nirmohi Akhara filed third suit. 1961: UP Sunni Central Wakf Board filed fourth suit. 1984: Vishwa Hindu Parishad (VHP) formed a committee to liberate the birth- place of Lord Rama and build a temple. 1986: Muslims also formed the Babri Mosque Action Committee after the dis- trict judges issued an order to open the gates of the mosque and allow Hindus to worship there. 1989: The newly-elected Rajiv Gandhi government allowed the VHP to perform shilanyas for the Ram Temple on the dis- puted land. The VHP laid the foundation to build a Ram Temple adjacent to the disputed mosque site. 1989: The four suits pending were transferred to the High Court. 1990: The then BJP president, Lal Krishna Advani, took out a cross-country rathyatra to garner support for a Ram temple at the site. He was arrested in Bihar on October 23. The BJP withdrew its support to the government. 1991: The Kalyan Singh government in UP acquired 2.77 acres land in the area and gave it on lease to the Ram Janmabhoomi Nyas Trust. The Allahabad High Court stopped any permanent con- struction activity in the area. 1992: In July, several thousand kar sevaks assembled in the area and the work for maintenance of the temple start- ed. This activity was stopped after inter- vention of the prime minister. Meetings started between the Babri Masjid Action Committee and VHP leaders in the pres- ence of the home minister. On October 30, the Dharam Sansad of the VHP proclai- med in Delhi that the talks had failed and kar seva will resume from December 6. Dec 6, 1992: The Babri Mosque was demolished by a gathering of near 200,000 kar sevaks. Communal riots across India followed. Dec 16, 1992: The Congress govern- ment at the centre, headed by PV Narasimha Rao, set up a commission of inquiry under Justice Liberhan. 1993: The government took over 67 acres of land around the area, sought the SC's opinion on whether there existed a Hindu place of worship before the structure was built. 1994: The case was sent back to the Lucknow Bench of HC. Feb 27, 2002: The VHP declared March 15 as the deadline to begin con- Ayodhyacase:Suchalongjourney 16 November 12, 2018 UNI
  15. 15. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com “ItisnowclearthattheBJPonlywants tousetheRamMandirasavote-winning issue.TheCongresshasrepeatedlysaid itwantsalegalresolutiontothematter.” —KapilSibal,senioradvocate rassment, but it has some hand in the way things are now. The fact that the dismissible rants have turned into a deafening cacophony stems from a deci- sion the Rajiv Gandhi government took. On November 9, 1986, it allowed the shilanyas of the Ram Mandir at the disputed site. Further, then Prime Minister PV Narasimha Rao’s foolish- ness failed to prevent the demolition of the Babri Masjid by kar sevaks on December 6, 1992. Now, as the polls near, the BJP can aggressively reignite communal passion with its Mandir politics and temple- hopping, janeu dhari (the one who wears a Brahminical thread) Congress president Rahul Gandhi can tell Hindu voters that he is the “better Hindu”, irrespective of what his gotra may be. The Ram Mandir, for now, is no closer to becoming a reality than it was when the Allahabad High Court gave a please-all verdict on September 30, 2010, to divide the disputed 2.77-acre land in Ayodhya equally between the three feuding claimants with Ram Lalla (the infant Lord Rama) himself being one of the petitioners. The Supreme Court now stands as the final arbiter, preventing any attempts at a hostile takeover. struction of the Ram Temple. Hindu activists returning from Ayodhya on a train were attacked in Godhra. Nearly 58 people were killed. Mar 2002: 1,000-1,500 people were reportedly killed in the riots following the Godhra incident in Gujarat. Apr 2002: The Lucknow bench of Allahabad High Court of three judges began hearings in the case. Jan 2003: Archaeologists started a court-ordered survey to find out if a Ram Temple existed on the site. Aug 2003: The survey found evi- dence of a temple beneath the mosque. However, Muslim groups disagreed with the findings. Sept 2003: A court ruling charged seven Hindu leaders and said they should stand trial in the demolition case. However, no charges were brought against LK Advani on the ground that the case related to the volunteers who had razed the mosque. The same was upheld by Allahabad High Court in 2010. Nov 2004: A UP court ruled that the previous ruling exonerating Advani should be reviewed since he said in October 2004 that his party was unwaveringly committed to building the Ram Temple. July 2007: The apex court refused to admit a review petition on the case. July 2009: The Liberhan Commission filed its report on the Babri mosque dem- olition—17 years after it was set up. Nov 2009: The commission’s content was made public, which led to a huge uproar in the parliament as the report named many leading BJP politicians. Sept 2010: Allahabad High Court’s ruling gave one-third possession of the site each to Muslims, Hindus and the Nirmohi Akhara. By a 2-1 majority verdict (in the ben- ch of Justice SU Khan, Justice Sudhir Agarwal and Justice DV Sharma), plain- tiffs representing Lord Rama, the Nirmohi Akhara and the Wakf Board were declared joint title-holders of the pro- perty. The bench asserted that the portion under the central dome of the demolished three-dome structure where the idol of Ram Lalla had been kept in a makeshift temple was the birthplace of Lord Rama “as per faith and belief of the Hindus”. 2010 The Allahabad High Court upheld the decision of the trial court to drop the charges against Advani. Dec 2010: The Akhil Bharatiya Hindu Mahasabha and Sunni Wakf Board moved the Supreme Court, challen- ging part of the Allahabad High Court’s verdict. 2011: The CBI appealed against the High Court order against dropping of charges against Advani. Advani and others sought dismissal of the CBI petition, citing delay as the reason. May 9, 2011: The Supreme Court stayed the High Court order splitting the disputed site in three parts; remarked that the HC verdict was surprising as no party wanted a division of the site. Mar 21, 2017: The Supreme Court said charges against senior BJP leader Advani and other leaders cannot be dropped and that the case may be revived. The apex court said the Ram temple is a sensitive issue and should be settled out of court through discussion between the two sides. Dec 1, 2017: Thirty-two civil rights activists file a plea challenging the 2010 verdict of the Allahabad HC in the title suit. Feb 8, 2018: The SC starts hearing the appeals in the title suit. Apr 6: Rajeev Dhavan files a plea in the SC to refer the issue of reconsidera- tion of the observations in its Ismail Faruqui judgment of 1994—mosque isn’t integral to Islam—to a larger bench. Sept 27: SC declines to refer the Ismail Faruqui verdict to a larger Constitution bench; says title suit pro- ceedings can commence on October 29. Oct 29: Three-judge SC bench head- ed by CJI Ranjan Gogoi says decision on when arguments in the title suit may commence and which bench would hear them to be taken in January 2019. | INDIA LEGAL | November 12, 2018 17
  16. 16. Supreme Court/ Vishakha Guidelines 18 November 12, 2018 SLEW of sexual assault charges against several high-profile men, most notably former journalist MJ Akbar who was rece- ntly forced to quit the Union council of ministers, has once again put the spotlight on the need for organisations to strictly abide by the laws and regulations laid down to deal with such cases. It is in this context that a PIL was filed in the Supreme Court by advocate Maneesh Pathak praying that the Vishakha guidelines be made appli- cable to ashrams, madrasas, Christian institutions and other religious and spir- itual places. The Vishakha guidelines came into effect in 1997 when the Supreme Court laid down formal guidelines for dealing with sexual harassment at the workplace following the gangrape of a social work- er, Bhanwari Devi, from Bhateri in Rajasthan. Its genesis lay in a Rajasthan- based women’s rights group filing a PIL in the apex court after the rape victim failed to get justice despite a long legal battle. The petition, filed by the women’s group, Vishakha, and four other women’s organisations in Rajasthan, against the state of Rajasthan and the Union of India, resulted in what are popularly known as the Vishakha guidelines. It was a landmark case because, on the 50th anniversary of our independence, for the first time ever, the highest court of the land emphasised the need for laws on sexual harassment and laid down guide- lines to afford women protection from predators at the workplace. There were 12 guidelines that were laid down as applicable to workplaces. According to these, it is the responsibi- lity of the employers or other persons holding such position of authority to ensure that any workplace or any other institution is free from all kinds of sexu- al harassment. The employers are also expected to initiate and formulate a pro- cedure that is to be implemented in case of commission of any such offence, the solutions, prosecution and other neces- sary steps required thereof, for the pur- pose of resolution. A number of actions were included within the ambit of sexual harassment. They are: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually coloured remarks; (d) showing pornography; (e) A THE UNHOLY QUARTET (clockwise from left) Baba Ram Rahim, Bishop Franco, Asaram Bapu and Daati Maharaj False Prophets APILfiledintheSupremeCourtcitesrecentcasesof“holymen”sexuallyharassingwomen toseekimplementationoftheVishakhaguidelinesinreligiousandspiritualplaces By Sankalan Pal
  17. 17. | INDIA LEGAL | November 12, 2018 19 any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. In his PIL, Pathak said religious places constitute part of workplace as many women are employed there besides those working on a voluntary basis. The petition sought collection of data on religious institutions where women practise and profess religion so that effective steps can be taken on the basis of the guidelines to provide assistance to victims of sexual assault. “If the Visha- kha guidelines are extended to religious institutions, it would assist a lot in redu- cing sexually related crimes against women at religious places by various religious gurus or leaders of that partic- ular institution,” the petition said. The petition also asked the centre to direct the authorities concerned of the particular area, where such religious institutions are situated, to do back- ground verification of religious leaders, especially “new upcoming babas” and heads of madrasas and churches. The petition also prayed that directions be issued to the centre to provide adequate measures for women’s safety at religious places by having periodic checks con- ducted by state women’s panels. I n religious and spiritual places, many women practise and profess their religion and it is of utmost necessity that their safety is taken into consideration and the 1997 judgment is made applicable to religious institu- tions. This will act as a deterrent and reduce sex-related crimes in religious places. In recent times, a lot of self- proclaimed babas, gurus, religious heads in madrasas, churches, etc, have been accused of sexually harassing women by making untoward advances towards them. These religious preach- ers simply abuse their position of authority and the women who approach them with a pious mindset become aghast when they are subjected to sexu- al assault and physical intimidation. Advocate Pathak cited several recent examples to buttress his demand. Among them were the Kerala nun rape case in which the accused is a bishop, the Daati Maharaj rape case, the cases involving Baba Ram Rahim and Asaram Bapu. In Pune, a maulana of a madrasa was reportedly accused of harassing a large number of girl students. What is most shocking is that such incidents are happening in a place where Muslim par- ents send their children to pursue Islamic studies, in the belief that the maulanas will inculcate the best Islamic values in their children. Even the Kerala case, where a nun was raped by a bishop against whom the police was initially reluctant to file a case, sent shockwaves through the country. Though the bishop is now out on bail, a priest who testified against the bishop was found dead last week under mysterious circumstances. These “spiritual leaders” had millions of devotees, a majority of them ordinary womenfolk. Such was their blind faith that many of them even left home and hearth to stay in the ashrams, donating large amounts of money in their search for spiritual solace. Their worlds soon crashed as they discovered the true nat- ure of the men whom they considered God. What is surprising is that some of these godmen continue to retain their hold over followers despite being found guilty and being incarcerated. Asaram Bapu and Daati Maharaj are examples of fraudsters masquerading as godmen who have managed to retain their grip over followers even while lodged in jail. In his petition, Pathak said that keep- ing in view the many sexual exploitation cases and the number of religious leaders being exposed, the women are in a state of paranoia about visiting these institu- tions. According to the Vishakha guide- lines, right to life and liberty, right to freedom of expression and right to equality are the fundamental rights of every woman as guaranteed by our Constitution. Due to the rising number of such cases, it is necessary that proper rules and policies are framed according to the Vishakha guidelines so that women feel safe in religious places. A religious place is one which people visit to worship, learn and profess their respective religions. Sadly, the flag-bear- ers of these institutions are the ones who are increasingly indulging in das- tardly attacks on unsuspecting followers. In a country like India where a majority of the people—be they Hindu, Muslim, Christian, Sikh or others—are religious by nature and where women form a bulk of the faithful, it is high time that their safety is taken into consideration and the Vishakha guidelines are proper- ly implemented. So far, most women survivors have refrained from coming out in the open. But in the three weeks since the #MeToo movement hit India, women from across the country have been coming forward to narrate their stories of exploitation. In the process, a minister has lost his job, many high-profile journalists have been forced to quit, big-budget films have been shelved, big-ticket contracts have been cancelled and a noted writer has had to apologise to the girl he alleg- edly made a pass at—and to his wife too. It’s the godmen’s turn next. TheVishakhaguidelineswerelaiddown bytheSCin1997followingthegangrape ofasocialworker,BhanwariDevi(above), fromRajasthan.Awomen’srightsgroup, Vishakha,hadfiledaPILinthiscase. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  18. 18. Supreme Court/ Medical College Admissions 20 November 12, 2018 cations, the Court in its judgment said that if substandard medical education is allowed, it would pose a threat to the right to life. “Allowing medical colleges which have no infrastructure to provide quality education would be against the interest of the society,” it said. The Supreme Court also strongly criticised the High Court for giving a general suggestion that if the medical colleges had any inadequacies or were found wanting in any manner, they should be given the opportunity to over- come it. The apex court pointed out that giving such directions without conduct- ing an inspection would be illegal. The Court said that ordering an inspection and at the same time allowing the gov- FLOUTING RULES (Below) The PK Das Medical College, Palakkad, one of the medical colleges whose admission process was annulled by the SC Crackdown on Quack Factories Forthesecondtimeinasmanymonths,thetopcourthasdealtasevereblowtothegreedy managementsoftheseinstitutionsinKerala By NV Ravindranathan Nair in Thiruvananthapuram hile sending a strong message to the mushrooming private medical colleges in Kerala that it would not tolerate irregularities in admissions and the education imparted, the Supreme Court cancelled the admission process that had been completed in four self- financing private colleges. It also came down heavily on unscrupulous manage- ments that look at admissions to med- ical colleges as a quick and surefire way to amass money while churning out quacks. For the 550 students of the DM Medical College, Wayanad, PK Das Medical College, Palakkad, SR Medical College, Varkala, and Al-Azhar Medical College, Thodupuzha, the future has never looked bleaker. The apex court’s order came on a W plea by the Medical Council of India (MCI) that challenged an order of the Kerala High Court which had granted approval for admissions to these colleges even when they did not follow the nor- ms. The MCI contended that they had failed to meet the necessary guidelines in providing sufficient infrastructure, an argument which the apex court upheld. Earlier, the top court had on Septem- ber 5 stayed the Kerala High court order granting affiliation to these colleges. The colleges told the Court that they had almost filled the seats through the mop-up counselling and requested that the students be allowed to continue their studies. However, a bench com- prising Justices Arun Mishra and Vineet Saran observed that the admissions of the students to these colleges be termi- nated. Making strong observations against the trend of medical colleges not following any norms or meeting specifi-
  19. 19. | INDIA LEGAL | November 12, 2018 21 ernment and MCI to have a free hand to take a decision on finding problems would endanger the future of students. Meanwhile, Commissioner of Entrance Examinations PK Sudheer Babu said steps would be taken to re- fund the fees remitted by students who- se admissions were cancelled by the Supreme Court. He said the list was ready and the refund would be made in November. “Cheques for the amount paid would be sent to their postal add- ress or the amount would be transferred through account transfer,” he clarified. E arlier, the MCI had denied per- mission to these colleges to make admissions on the ground that they had failed to fulfil the necessary norms. However, the colleges went ahead with admissions after securing a favourable verdict from the High Court. Following this, the MCI moved the Sup- reme Court. During the trial, the apex court also observed that the students may lose their seats, while staying the admissions to the colleges. “As the admission process is com- plete and the academic session has al- ready begun, the students have few options. They had repeatedly been asked to appear for counselling when admis- sions to other medical courses like Ayur- veda were being held. But none of them turned up. They were under the impres- sion that the managements would get a favourable order from the apex court,” said a parent of a student. Managemen- ts will now have to return the fees to the students and the latter will have to wait for the next entrance examination. The state government has few op- tions before it as earlier legislation to save the students of Kannur and Karuna medical colleges, similarly hit by prom- ulgating an ordinance, was quashed by the Supreme Court. Ironically, that ordi- nance was promulgated by the state governor, P Sathasivam, a former chief justice of the Supreme Court. The apex court, while quashing the bill on Sep- tember 5, had said that the ordinance was unconstitutional. On March 22 last year, the Supreme Court had cancelled the admission of 180 students in these two colleges, citing irregularities in the admission proce- dure. The Kerala government then promulgated the ordinance to regularise the admissions. The assembly had sub- sequently passed a bill in April this year to bypass the apex court order. “The government tried to interfere in the dis- cretion of courts. The Ordinance was brought to protect students who obtained MBBS seats through irregular means,” the Supreme Court observed while quashing the ordinance. The government’s claim was that it took a favourable stand towards admis- sions, made without the knowledge of the admission supervision committee, for the sake of students. But from the High Court to the Supreme Court, ver- dicts were delivered against the Kannur and Karuna medical colleges that grant- ed admission to students against rules. The LDF government led by Chief Minister Pinarayi Vijayan had earlier passed the Kerala Professional Colleges (Regularisation of Admission in Medical Colleges) Bill, 2018, to regularise the admissions to self-financing medical colleges in 2016-17. It may be noted that when the Bill was introduced in the assembly, the Opposition UDF also had joined the LDF in unanimously passing it as both the ruling and opposition fronts were acting to serve the interest of these two medical colleges. The lone voice of protest belonged to Congress MLA VT Balaram who raised the question of morality and illegality in bypassing the apex court verdict through a piece of legislation only to protect the merchandising of medical education. In an earlier order, the Supreme Court had said that the ordinance bla- tantly seeks to nullify the binding effect of the order passed by it. “Prima facie it was not open to declare this court’s order as void or ineffective as was sought to be done by way of ordinance,” the Court had then said. In trying to safeguard the interests of the avaricious managements of private medical colleges, the state government has virtually played with the lives of 730 young men and women. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com FUTURE TENSE Examinees seeking guidance at a NEET help-desk set up in Thiruvananthapuram by the Kerala government UNI
  20. 20. Supreme Court/ Disqualifying the Sarpanch 22 November 12, 2018 HE Supreme Court, while promoting population con- trol, upheld the disqualifi- cation of a sarpanch in Odisha on the grounds of having more than two chil- dren, even though one of them was given up for adoption. The disqualification has its basis in the Orissa Gram Panchayats Act, 1965. This Act lays down a provision under Section 25(1)(v) and Section 25 (2): “A person shall be disqualified for being elected or nominated as, a Sarpanch or any other member of the Grama Panchayat constituted under this Act, if he, ... has more than two children.” The disqualification was challenged by the sarpanch who had been elected, but after election, he had had a third 2002. A third child was born to the appellant on August 3, 2002. The first child was given in adoption way back on September 10, 1999.” The third child was born after he became a sarpanch. His main contention before the bench of Chief Justice Ranjan Gogoi, and Justices Sanjay Kishan Kaul and KM Joseph was that as the first child was given up for adoption, he ceased to be a member of the sarpanch’s family and had become a member of the fami- ly of the adoptive parents. The sarpanch relied on Section 12 of the Hindu Adoptions and Maintenance Act, 1956, and submitted that even though he was the biological father of the three chil- dren; in reality, he was the father of only two of them and hence, the bar on three children would not apply to him. T One Child Too Many Inasternwarningtoelected representatives,theapexcourtupheld anOrissaHighCourtjudgmentwhich disqualifiedasarpanchforhavinga thirdchildeventhoughthefirstone wasgivenforadoption By Naved Ahmed child. This prevented him from being a sarpanch. The Orissa High Court upheld the rule of disqualification and he approached the apex court. Minasingh Majhi, the appellant in this case, approached the Supreme Court after he was aggrieved by the Orissa High Court’s decision. The Supreme Court noted that the sarpanch “had two children born to him on September 6, 1995, and October 12, 1998, respectively. He had filed his nom- ination and was elected in February ThesarpanchhadreliedonSection12of theHinduAdoptionsandMaintenance Act,1956,andsaid,thoughhewasthe biologicalfatherofthreechildren,inreali- ty,hewasthefatherofonlytwoofthem.
  21. 21. | INDIA LEGAL | November 12, 2018 23 His contention that the Orissa Gram Panchayats Act wouldn’t apply to him was rejected by the apex court which said that the purpose of the said legisla- tion was undoubtedly to put a restric- tion on the number of children elected members could have. The bench said: “The legislative emphasis is on the number of children that a prospective elected member has given birth to and not whether under provisions of differ- ent statutes in force, including the Hindu Adoptions and Maintenance Act, 1956, children born to such a person can be excluded from the family of the prospective elected member.” The Supreme Court further clarified that emphasis should be placed on the number of children a prospective elect- ed member had given birth to and not whether the children could be excluded from the family by way of different statutes. The Court further said that Section 2(2) of the Hindu Adoptions and Maintenance Act would not apply to the appellant as he belonged to a Scheduled Tribe. The bench said: “There has been no challenge to the provisions of Section 2(2) of the 1956 Act before the High Court or even before this Court. We will, therefore, proceed on the basis that the provisions of the 1956 Act do not apply to the case of the appellant in which event the contention advanced that the adopted child, under the Act, had ceased to be a member of the appellant’s family, having become a member of the family of the adoptive parents, will have no legs to stand.” The Court dismissed the appeal, reiterating the High Court’s order of disqualification. The apex court has, thus, set an example of putting checks on population control by letting people know the implications of having more children. India, being the second most populated country and having about 17 percent of the total world population, needs to take serious measures in this regard. Putting these restrictions on elected leaders is the right place to start. If they want to lead, they better lead by example. The purpose of the law so enacted was to produce a “role-model effect” among the locals. This “two-child policy” had ini- tially been adopted by 11 states, but now remains effective in only seven states. Disqualification in fighting elections is not the only measure taken by govern- ments for population control. There are many disincentives for those having more than two children. These include refusal of government rights for the third child, denying healthcare for the mother and children and not providing supplements necessary for children. However, while India cannot adopt strong-arm measures like China to curb its population, some of its approaches need to be critically analysed. Massive public campaigns can help create aware- ness about smaller, happier families ins- tead of resorting to such bars as the sarpanch faced. While elected leaders may try to manipulate the laws, the ju- diciary is there to enforce these rights. PRACTICE WHAT YOU PREACH The Orissa Gram Panchayats Act restricts the number of children an elected member of the body can have to two Otherdisincentivesforthosehaving morethantwochildreninclude refusalofgovernmentrightsforthe thirdchildanddenyingsupplements necessaryforchildren. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com publishyourarticles.net
  22. 22. Supreme Court / Kerala Flood Relief 24 November 12, 2018 FTER Kerala was ravaged by floods in August this year, Marxist Chief Mini- ster Pinarayi Vijayan unveiled a slew of meas- ures to mop up funds for relief and rehabilitation. They included cancellation of several State-sponsored festivals and tourism carnivals that normally happen between September and March, the peak tourist season in Kerala. He also came up with another scheme which his government claimed was the most innovative of the lot. Called “Salary Challenge”, it sought that all govern- ment employees donate a month’s gross salary to the Chief Minister’s Distress Relief Fund (CMDRF). Those who did not want to contribute had to furnish a written no-consent declaration. Last week, the Supreme Court agreed with the Kerala High Court that it wasn’t a fair deal and dismissed the state government’s appeal against an HC order staying the Salary Challenge. In a major blow to the CM, the Court observed that the government order (GO) issued on September 11, 2018, amounted to forcing an employee to heap humiliation upon oneself by sub- mitting such a no-consent declaration. The Kerala NGO Sangh, an affiliate of the Bharatiya Mazdoor Sangh (BMS), was the petitioner seeking to quash Clause 10 of the GO stipulating guide- lines for the Salary Challenge. The bench, comprising Justices Arun Mishra and Vineet Saran, took a dig at govern- ments’ routine practice of diverting funds meant for relief measures, and asked “what was the guarantee that salary so collected would be used only for relief operations?” In the impugned order, a division bench of the Kerala High Court had said that Clause 10 of the GO on Salary Challenge amounted to compulsion of emplo- yees to contribute one month’s salary to the CMDRF. Now, with the land- mark verdict by the Supreme Court on the government’s appeal against the High Court’s stay, the state government has to issue a fresh GO modifying the earlier one. The court order has come as a slap in the face of Chief Minister Vijayan and Finance Minister TM Thomas Isaac who had been coercing the employees to submit a no-consent declaration to avert donation of their salary. Speaking to India Legal, NGO Sangh state General Secretary SK Jayakumar said the apex court order was a landmark one as it would restore the prestige of the government employees. “Both the chief minister and the finance minister were trying to coerce the government employees. Our stand was that employees should be allowed to contribute as much as they can afford,” Jayakumar said. He added that while 60 A Held To Ransom TheCourtvetoesthestategovernment’s“SalaryChallenge”thatvirtually compelledallemployeestodonateamonth’swagesforfloodvictims By NV Ravindranathan Nair in Thiruvananthapuram PLAN SCUTTLED Chief Minister Pinarayi Vijayan talks to flood victims at a relief camp near Chengannur in Kerala Courtesy: Big News Live
  23. 23. | INDIA LEGAL | November 12, 2018 25 percent of the employees were apolitical, pressure was being mounted to make them contribute. Moreover, many of the government employees themselves were victims of the flood and struggling to rebuild their lives, and so compelling them to join the Salary Challenge was unfortunate. In some families, where both husband and wife serve the government, both would be forced to contribute. The government’s contention before the Court was that there had been no compulsion on the employees to con- tribute to the CMDRF and the insis- tence was only on providing the no- consent affidavit if they didn’t want to donate. But NGO Sangh argued that the compulsory nature of the GO amounted to extortion, and publicising the list of those who submitted no-consent affi- davits amounted to public humiliation. They were apprehensive that non- consent affidavits would invite the wrath of the government and the employees would have to face hostile treatment. State Finance Minister Isaac admit- ted that the apex court verdict on Salary Challenge was a setback to the govern- ment. He said the government would soon amend its order in view of the ver- dict of the Supreme Court. “The apex court verdict is a huge setback to us. However, the government will soon amend the order and issue a fresh one. The employees’ contribution to the CMDRF will be deducted only from those who have given the consent to do so,” he said. Ever since the floods hit the state, the chief minister and the finance minister were mounting pressure on employees who were reluctant to part with their salaries. At one stage, the chief minister even asked what answer employees would give their children if they were asked about their contribution for the state’s rebuilding. T he chief minister has also been critical of the centre for not giv- ing the nod to accepting contri- butions from countries like the UAE and Thailand. The prime minister had told the chief minister that the government’s policy since 2004 was against accepting financial assistance from other coun- tries. However, the prime minister had assured the chief minister of all possible financial assistance to the state to deal with the crisis. Already, the centre and some central government institutions had granted over `1,500 crore worth of assistance. Further, sufficient funds had been offered for reconstruction of the National Highways. Surface Transport Minister Nitin Gadkari had announced another `450 crore more for the recon- struction of roads. Earlier, he had ann- ounced `250 crore to repair the dam- aged roads. Assurance also had been given of help for farmers and those who lost houses that the houses would be reconstructed by bringing them under respective central government schemes. The chief minister has been critical of rejecting the state ministers’ plea to allow them to visit other countries to garner funds from Indians settled abroad. Though the chief minister was allowed to visit the UAE last week, at a function attended by the diaspora he lashed out at the centre’s attitude towards the state. The CM’s open criti- cism of the centre in the presence of the members of the UAE ruling royalty raised many an eyebrow. Vijayan had earlier claimed that the UAE had offered to make a contribution of `700 crore but there was no official confirmation from the Emirates on the issue. The state finance minister too has been critical of the centre for not allow- ing the state to accept funds from out- side. Terming the central assistance of `600 crore sanctioned immediately dur- ing the floods as “a mere pittance”, he stated that the centre was not allowing the state to collect assistance from abroad as it had political differences with the LDF government. Though the CMDRF has already received around `2,000 crore, a majori- ty of the flood victims have received only `10,000 each as assistance. While the United Nations’ estimate of the loss incurred in the flood stands at `31,000 crore, the state government’s assessment is nearly `50,000 crore. The apex court order doesn’t leave the state any poorer. It has already col- lected `1,500 crore from the 2.88 lakh of the 4.81 lakh government employees and teachers who had agreed to the Salary Challenge. Thebench,comprisingJusticesArunMishra(left)andVineetSaran,tookadigat governments’practiceofdivertingfundsmeantforreliefmeasures,andasked“what wastheguaranteethatsalarysocollectedwouldbeusedonlyforreliefoperations?” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com
  24. 24. Courts/ Gift Deed 26 November 12, 2018 OURTS were recently gripped by a case involving a gift given by a donor to a donee. The case came up before the Kerala High Court but, unhappy with its verdict, the petitioner approached the Supreme Court. The petitioner, Sarojini Amma, a 74-year-old widow, had exe- cuted a gift deed in favour of her nephew, Sreekumar. Although it was clear from the gift deed that it would take effect only after Amma and her husband’s death, on the condition that Sreekumar would look after them, Amma cancelled the deed in 1999. This was challenged before the Kerala High Court which dismissed the suit. The High Court had relied on Reninkuntla Rajamma v K. Sarwanamma where it was established that the donor had reserved the right to enjoy the property during her lifetime without it affecting the validity of the deed. For a valid gift deed, transfer and acceptance are the key ingredi- ents. The Court also held that a gift has to be accepted by or on behalf of the donee and such acceptance could be made dur- ing the lifetime of the donor till the time he is capable of accepting it. In the present case, it was an incomplete gift as the title remained with the donor. Therefore, the donor has a right to cancel the deed as the gift would take effect after her death and she cancelled it No Free Lunches Inaninterestingcase,theapexcourthasclarifiedthatagiftofpropertycomeswithout considerationandaconditionalgiftiscompleteonlywhenthosestipulationsaremet By India Legal Bureau C TEST OF VALIDITY Justices Arun Mishra (right) and Indira Banerjee reiterated that a gift, in order to be valid, must satisfy the statutory conditions Photos: Anil Shakya
  25. 25. | INDIA LEGAL | November 12, 2018 27 while she was alive. When the case came up before the Supreme Court, a bench of Justices Arun Mishra and Indira Banerjee said: “We are in agreement with the decision of this Court in Reninkuntla Rajamma that there is no provision in law that ownership in property cannot be gifted without transfer of possession of such property. However, the conditions precedent for a gift, as defined in Section 122 of the Transfer of Property Act, must be satisfied. A gift is a transfer of property without consideration. Moreover, a conditional gift only becomes complete upon compliance of the conditions in the deed.” In the pres- ent case, the condition was that the gift would take effect only after the death of the donor. The Court also said that the deed of transfer was executed for consideration and was in any case subject to the con- dition that the donee would look after the woman and her husband and that the gift would take effect after the death of the donor. “We are thus constrained to hold that there was no completed gift of the property in question by the appel- lant to the respondent and the appellant was within her right in cancelling the deed,” the bench said. While a gift deed, once executed, cannot be cancelled unilaterally, it can be done with mutual consent of the par- ties (i.e. the donor and the donee) and has to be properly stamped and regis- tered. A gift may also be subject to the provisions of the Transfer of Property Act, 1882. Section 26 of the Act, which deals with fulfilment of conditions, pro- vides that: “Where the terms of a trans- fer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.” A ccording to the Act, the defini- tion of gift under Section 122 is transfer and acceptance of a moveable or immoveable property by the donor to the donee. The process for transfer has been explained in Section 123 of the Act. It provides that: “For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as afore- said or by delivery. Such delivery may be made in the same way as goods sold may be delivered.” That would only be possible when the donor is divested of his title and the donee becomes absolute owner of the property. Section 126 of the Act deals with revocation or suspension of a gift. It says: “The donor and donee may agree that, on the happening of any specified event which does not depend on the will of the donor, a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable, wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of trans- ferees for consideration without notice. Illustrations: (a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field, in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field; (b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure `10,000 out of the lakh. The gift holds goods as to `90,000, but is void as to `10,000, which continue to belong to A.” It is obvious that one should not look a gift horse in the mouth. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Thecasefirstcameup beforetheKeralaHigh Court(left),whichnoted thatforavalidgiftdeed, transferandacceptance arethekeyingredients.It alsoheldthatagifthasto beacceptedbyoron behalfofthedoneeand suchacceptancecouldbe madeduringthelifetimeof thedonortillthetimeheis capableofacceptingit.
  26. 26. Courts/ Impleading Judges 28 November 12, 2018 CICI Lombard bit off more than it could chew when it tried to initiate proceedings against judges in a case. The Rajasthan High Court took note of this move and saw through the insurance company’s attempt to influence the outcome of a case by impleading several district judges as parties to a petition filed by it. One of the judges had been elevated to the High Court. The High Court ruled that the insurance company had committed abuse of the process of law and thus directed it to deposit a penalty of `10 lakh with the Legal Services Authority within a month. In its petition, ICICI Lombard Gen- eral Insurance Company had impleaded compensation commissioners in various districts in Rajasthan. The High Court said that the impleadment had been made without making any specific alle- gation against any individual judge and the act was done to mislead the Court. When this fact was raised by the respon- dents, the petitioners tried to withdraw the petition, but the Court refused the withdrawal plea and said that “the forum of preferring the writ petition has been seriously misused and abused by the petitioners”. The company had filed a petition in the Court impleading several employees’ compensation commissioners, and ques- tioned their legal qualifications. It also asked the Court to restrain the officers from discharging their duties. A single-judge bench of Justice Sanjeev Prakash Sharma fined the insurance company `10 lakh and said that the “action of the petitioner compa- ny amounted to abuse of process of law”, and accordingly dismissed the writ peti- tion by imposing penal cost of `10 lakh. The bench further noted: “Having filed such a writ petition, the petitioner company would not raise a reasonable excuse before the concerned compen- sation commissioners not to hear cases in relation to grant of compensation against their company and would thus be browbeating and wrongfully influencing the employees and compen- sation commissioners posted at various districts.” The Court dismissed the petition, understanding the true motive of the company in trying to abuse the process of law and order. This order is a huge blow to companies which use their resources and power to engage in dilato- ry tactics or seek to influence powerful people. These tactics extend the already lengthy proceedings in courts and are detrimental for the common man who undergoes detailed scrutiny of his insur- ance claims. If companies use such tac- tics, the common man will have nothing to hope for. Thankfully, the Court, as a guardian of the rights of people, has often come to the rescue of the common man. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Abuse of Law TheRajasthanHighCourthasfinedICICILombard `10lakhforimpleadingseveraljudgesinacase By Naved Ahmed JusticeSanjeevPrakashSharma(above) oftheRajasthanHighCourtobserved thatICICILombardhadtriedtobrowbeat andwrongfullyinfluencethecompensa- tioncommissioners,andthuscommitted abuseoftheprocessoflaw. I
  27. 27. Environment/ Pollution in NCR 30 November 12, 2018 VERYONE knew pollution would choke those living in the National Capital Region (NCR) before, during and after Diwali. But little was done to offset it despite the torture residents went through last year. Obviously, no lessons were learnt. However, a series of directions by the Supreme Court are haunting both the state and central governments. Sources told India Legal that the Narendra Modi government is likely to challenge some of these directions as it cannot afford to fight the rising anger among the electorate with both state and parliamentary elections round the corner. As 17 areas in Delhi have touch- ed severe air quality levels, a Supreme Court bench headed by Justice Madan B Lokur ruled that all 15-year-old petrol and 10-year-old diesel vehicles be impounded in Delhi-NCR. Government sources said that this was not the solu- tion. The right thing to do was to im- pound only polluting vehicles and not look at their age, since, if maintained well, they could still run well and not pollute at all. There are around 3.3 lakh 10-year- old diesel vehicles and 36.7 lakh 15- year-old petrol vehicles in Delhi. It will be a logistical nightmare to store these vehicles as there is shortage of space. The apex court had even pulled up the Delhi police for parking seized vehicles inside and outside police stations which had become a breeding ground for mos- ItisthattimeoftheyearwhenDelhiandtheNCRbecomedeadlygaschambers.Whilethe SupremeCourthascrackeddownonpolluters,whatcanbedonetocleanthistoxicair? By Ramesh Menon A SMOKE CHAMBER The November smog takes away the shine of Delhi’s iconic India Gate area E Capital Punishment UNI
  28. 28. | INDIA LEGAL | November 12, 2018 31 quitoes and diseases. Other measures to curb pollution are also underway. The Environment Pollution Control Authority (EPCA), appointed by the Supreme Court, called for halting construction activity, use of diesel-run power generators, operation of brick kilns and burning of garbage. The EPCA even went to the extent of threatening to stop private cars from plying in Delhi if air quality worsens. Bhure Lal, chairman, EPCA, said: “Let us hope the air pollution situation in Delhi doesn’t deteriorate or else we will have to stop plying of private vehicles.” If this happens, it will be unprece- dented and paralyse offices and business activities. Public transport will not be able to take this load anyway. There are over 35 lakh vehicles in the NCR which the EPCA says contribute to 40 percent of the pollution. Incidentally, there are more than a crore of registered vehicles in the capital and seven lakh new vehi- cles are registered every year. To understand the severity of pollu- tion levels, one needs to understand what these levels are. An air quality index between 0 and 50 is considered “good”, 51 and 100 is “satisfactory”, STOKING THE FIRE: Stubble burning in Haryana and Punjab has added to the poor air quality; (top) a satellite image from NASA shows the spread of the pollution Mahul in Mumbai is a heavily indus- trialised area dotted with polluting units. The air is pungent due to emis- sions from Hindustan Petroleum, Bharat Petroleum, Tata Power, Rashtriya Chemical and Fertilisers and other factories. Residents find their eyes and throats burning all the time. They also suffer from rashes, falling hair and skin eruptions. Irate residents filed a case with the National Green Tribunal (NGT), com- plaining of high pollution levels. In December 2015, the NGT ordered the Maharashtra Pollution Control Board (MPCB) to prepare a comprehensive action plan within two months to con- trol air pollution in Mahul. Not wanting to do it as it would expose numerous industrial units that were flouting pollution norms, the Maharashtra government chose to challenge the order in the Supreme Court. However, the apex court ruled that the directions of the NGT must be expeditiously implemented. Nothing happened. The residents filed an Execution Application in 2016. When it came up for hearing, the MPCB asked for more time, which was granted. At the next hearing, it asked for yet more time. The NGT remarked that the MPCB was playing a game of hide-and-seek based on its convenience and imposed a fine of `1 crore for non-compliance with its directions to act against the pol- luting industries. The case will come up for hearing next on November 15. `1crorepunishment Polluting units play havoc in Mahul Courtesy: NASA Saagnik Paul/Greenpeace
  29. 29. 32 November 12, 2018 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com 101 and 200 is “moderate”, 201 and 300 “is poor”, 301 and 400 is “very poor” and 401 and 500 is “severe”. Delhi and the NCR have crossed 401, raising alarm. This can damage health in the long term. Asthma and upper respiratory dis- eases can spring up. Pollution from fire- works is more dangerous than vehicular pollution as they release dangerous heavy metals into the atmosphere, lead- ing to respiratory and skin problems. Burning of waste in landfills and indus- trial areas is another health hazard. Burning of plastic and rubber waste leads to fumes which are carcinogenic and also leads to cardiovascular diseases. In another controversial order, the Supreme Court permitted the sale and manufacture of “green” firecrackers which have low emission across the country. But the irony was that no one knew what green crackers were and where to buy them. While the Court made the sale of green crackers manda- tory in the NCR, traders do not have them and it would take at least three months to produce them. Only some labs have created them and they are not avail- able anywhere. These crackers also must fall within the noise pollution limits and can be burst only in designated spots. Some firecrackers that led to excessive pollution like ladis were banned. A Supreme Court bench comprising Justices Ashok Bhushan and AK Sikri also specified that firecrackers would be burst only for two hours every day between 8 pm and 10 pm. The police were told to enforce this order. But how it will is a million-dollar question. The task is enormous and there is lack of personnel to execute the order. The Court also directed all states to explore the feasibility of community cracker bursting in designated areas only during festivals. As Article 21 (right to life) applies to both firecracker manufacturers and the general public, the Court said that it needed to strike a balance while consid- ering a countrywide ban on firecrackers. It wanted the central government to suggest ways to curb pollution caused by firecrackers. An expert panel headed by the Central Pollution Control Board advised residents to avoid strenuous outdoor activities like jogging or running. The Court told the government that poor people cannot be asked to stay indoors and not work as their livelihood would be affected. A bench of Justices Madan B Lokur, S Abdul Nazeer and Deepak Gupta said: “They are doing heavy duty manual work. You cannot tell them that you stop your work because it is unsafe for you to work in the morning. This is a very critical situation. It is horrible.” To make matters worse, stubble burning in Haryana and Punjab has added to the poor air quality. This hap- pens every year during the onset of winter when the sowing is done. As it is expensive to employ labourers to remove the stalks, the farmers just set them on fire. Maps of NASA showed haziness over huge tracts of land in these two states due to the smok- ing fields. The Court also imposed a construc- tion ban across the NCR for 10 days as loose soil, dust and building material were compounding the problem. An IIT Kanpur study on sources of pollution in the NCR, published in 2016, said that road dust was the biggest culprit in air pollution. The government’s moves to tackle pollution such as shutting power plants, diesel generator sets and brick kilns are only emergency measures. There are no long-term action plans to combat the toxic air pollution that is causing ail- ments or killing people. The blame game will continue between the Delhi government, the centre and the states of Punjab and Haryana. And citizens will be caught in this deadly dance of death. Environment/ Pollution in NCR The Supreme Court-appointed Environ- ment Pollution (Prevention and Control) Authority (EPCA) has said that as vehi- cles are contributing 41 percent of the pollution in Delhi, there is an urgent need to augment public transport infra- structure that includes connectivity between the cities of the NCR. It also suggested that entry of heavy commercial vehicles into Delhi be regu- lated as they release high levels of car- bon monoxide and nitrogen oxide into the atmosphere. It wanted taxis and autos to use clean fuel. Industries using coal and emitting a high level of sulphur dioxide also need to be regulated, it said. Industrial pollu- tion has increased by a whopping 48 percent between 2010 and 2018, it pointed out. In a report to the Supreme Court, the EPCA called for further direc- tions to agencies to strengthen meas- ures to control pollution. Temporarysolutions EPCA recommends regulated use of heavy vehicles Anil Shakya Pollutioncauses respiratoryand skinproblems. Burningofplasticand rubberwasteleadstofumeswhich arecarcinogenicand causecardiovasculardiseases.
  30. 30. Global Trends/ Sri Lanka Constitutional Crisis 34 November 12, 2018 HE dramatic swearing-in of former strongman Mahinda Rajapaksa as the prime mi- nister of Sri Lanka by Pre- sident Maithripala Sirisena recently has plunged Sri Lanka into an unprecedented constitu- tional crisis. Ranil Wickremasinghe was sacked by the president, but continues to claim he is the prime minister and wants a vote in parliament to settle the matter. But the wily Sirisena has asked parliament to convene in mid-Novem- ber, giving enough time to Rajapaksa for getting the necessary numbers. But it may be no cakewalk for Sirisena, as there is a pushback from Wickrema- singhe supporters, who also have the numbers on their side. The president may be forced to call Parliament earlier than November 16 given the pressure on him from the opposition. The return of Rajapaksa is raising concerns not just among the Tamil minorities in the country, but across the world. Ever since Rajapaksa swept the local body polls in February, speculations about his comeback were rife. Observers felt it was only a matter of time before this former president made his move. But few expected that Sirisena, once a minister in Rajapaksa’s cabinet and who had back-stabbed him to join hands with the traditional rival, the United National Party (UNP) of Wickrema- singhe, would be the catalyst. The coalition hurriedly patched to- gether ahead of the 2015 national elec- tions to keep Rajapaksa out of office was never a meeting of minds. Sirisena TANTI-DEMOCRATIC COUP? Maithripala Sirisena (right) appoints Mahinda Rajapaksa as prime minister at a function in Colombo StormHits IslandNation Inamajorjolt,thepresident,MaithripalaSirisena,hassworn inpro-ChinastrongmanMahindaRajapaksaasPMafter sackingRanilWickremasinghe,leadingtoworriesinIndia By Seema Guha Twitter
  31. 31. | INDIA LEGAL | November 12, 2018 35 brought with him a number of Sri Lanka Freedom Party leaders to join him in the coalition of national unity with the UNP. Both these parties were the two most popular ones in Sri Lanka. And this led to Sirisena becoming presi- dent and Wickremasinghe prime minis- ter. But this arrangement did not work out well. Both fell out and had not been on talking terms for months. Ahead of Wickremasinghe’s recent visit to India, the situation had already reached a breaking point. Sirisena is alleged to have spoken to his cabinet colleagues of a RAW plot to assassinate him. An Indian living in the island was arrested. His brother in Mumbai claimed he had a mental prob- lem. Soon after the news of the RAW plot, Sirisena called Prime Minister Narendra Modi to deny any accusation by him of an Indian bid to kill him and a former defence secretary of Sri Lanka. The local press in Colombo was blamed for misquoting him. Though the matter was glossed over, the fact that the former defence secre- tary was Gotabaya Rajapaksa, brother of Mahinda, could in hindsight give an inkling of what was to follow. Sirisena’s denial must now be taken with a pinch of salt. Wickremasinghe has always been regarded as a friend of India even at the time of the unpopular Indo-Sri Lanka accord of 1997. So the move to get India against Sirisena and Gotabaya signalled to the domestic audience that Delhi was against the president and backing Wick- remasinghe. It is well-known that India, the US and most western nations re- joiced after the 2015 election results. The massive pressure put on Colombo to clean up its human rights record eased as Rajapaksa was thrown out by the electorate. To the Tamil minorities of this island nation, as well as the powerful Tamil diaspora, Rajapaksa is a hate figure known for widespread human rights abuses. The diaspora want him to be tried as a war criminal for the atrocities committed during the last days of the military campaign against the Liberation Tigers of Tamil Eelam (LTTE). In fact, the young son of late LTTE leader V Prabhakaran was shot in cold blood by the Sinhala army. The mess in Sri Lanka, triggered by the constitutional coup by Sirisena, will take time to resolve as it prepares for a period of instability. Rajapaksa, though disliked by the rest of the world, re- mains popular among the Sinhala Buddhist majority of the country. Like many in India, people admire a strong leader. I t was, after all, President Rajapaksa who gave a crushing blow to the LTTE and rid the country of terror. The fact that there were widespread human rights abuses is not important to those who admire him. These people point to the number of Sinhala leaders such as former Prime Minister Rana- singhe Premadasa, Foreign Minister Lakshman Kadirgamar, Foreign Mini- sters Lalith Athalatmudali and Ranjan Wijeratne and Development Minister Gamini Dissanayake who were killed by the LTTE. Many Tamil leaders, includ- ing the genial Neelan Tiruchelvam and the elderly leader of a former Tamil party Amrithalingam, were also killed by the LTTE. Rajapaksa has always been a favou- rite of the Buddhist clergy who are known for their hyper nationalist stand. Though Rajapaksa was out of power, his popular base remained intact. Now that he is back with a bang, he will occupy centrestage in Sri Lankan politics. That would be of concern to India, which regards Rajapaksa as pro-China. But that was not always so. During Sri MahindaRajapaksaremainspopular amongtheSinhalaBuddhistmajorityof SriLanka.Thattherewerewidespread humanrightsabusesduringhisearlier ruledoesnotmattertohisadmirers. GARNERING HUGE SUPPORT A sea of demonstrators protesting against Ranil Wickremasinghe’s removal in Colombo Twitter