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India Legal 27 May 2019

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Crime and Punishment
A public interest petition filed before the Supreme Court asks that consecutive rather than concurrent sentences be awarded to those convicted of multiple offences. Knee-jerk,“tough on crime” over-reliance on incarceration as a stand-alone panacea for crime is unsustainable and counter-productive, writes Prof G Mohan Gopal

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India Legal 27 May 2019

  1. 1. NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com May 27, 2019 A public interest petition filed before the Supreme Court asks that consecutive rather than concurrent sentences be awarded to those convicted of multiple offences. Knee-jerk,“tough on crime” over-reliance on incarceration as a stand-alone panacea for crime is unsustainable and counter-productive, writes Prof G Mohan Gopal CrimeandPunishment Online Entertainment: The threat of censorship Prof Upendra Baxi on Judges Resiling from Decisions
  2. 2. | INDIA LEGAL | May 27, 2019 3 ECAUSE of the alarming spread of fake news—another phrase for the dissemi- nation of deliberately concocted disin- formation to propagate an ideology, ruin a reputation, distort history, falsify irrefutable eyewitness accounts—social media, the mothership on which such garbage is loaded and transported, has justly been vilified as the scourge of the century. An all-consuming plague. The apotheosis of Orwell’s dystopian 1984. Conversely, it is also hailed as an antidote to news and propaganda monopolies of govern- ments and information oligopolies—a platform from which alternative viewpoints can be heard, a safe haven for upright and truth-seeking jour- nalists who have been bounced from their main- stream media jobs by bosses displeased by their obsession for seeking the truth, a relatively inex- pensive, affordable digital substitute for electron- ic transmission to a worldwide audience. A tool for the blossoming of endless Arab Springs. But then, how do we know which is the truth—the argument or the counter-argument? The solution is not as difficult as it sounds. The simple word for it is research. Evidence-backed fact-finding and observation. It is the same process that led to the dropping of fake news such as that the earth is flat or that the sun revolves around the earth or that Lord Ganesha was the product of plastic surgery. Newspaper reportage or TV journalism not too long ago was pure fact-finding. You went sniffing for the facts or tried to dig them out from where they lay buried and earned, there- fore, the names “newshounds” or “muckrakers”. That was called old-fashioned reporting. The point of view emerged from the facts rather than vice versa unless, of course, you were a pam- phleteer. In today’s world, fact-checking—or real reporting— has assumed a new dimension. Instead of “newsgathering” a breaking story, today’s fact-checkers have an entirely new dimension to their métier: They busy themselves with copious research into whether published or broadcast material in the mainstream or social media, or public utterances by politicians, are indeed true. True, these fact-checkers, despite their fastidi- ousness and devotion to letting the chips fall where they may, and their understanding of mor- phed and photo-shopped disinformation and lies, do not have the same audience as the paid armies of disinformation specialists and trolls. But they are the harbingers of a brave new world of muckrakers. As more and more people pay attention to their websites and portals, the Goliaths of prevarication, mendacity, falsehoods and deception will face an increasing number of slings and shots to deal with. Fact-checking, thanks to The New York Times, Washington Post, and CNN, has risen exponen- tially in the US ever since Donald Trump’s White House turned into a fake news factory. India, with social media users who probably exceed the population of America, is catching up with this trend, and faster than most people would imag- ine. YouTube digital platforms in all languages are full of sxposés and critiques of the foibles and fantasies and often outright lies of mainstream magazines, newspapers and broadcast outlets. The leading fact-check giant is AltNews with a skeleton staff and a genius for research. AltNews, once confined to small corners of the web, has now earned nationwide respect with its editors much in demand on popular talk shows. But AltNews does not need that publicity. Today, when AltNews speaks, people listen because its credibility and devotion to its mission have been beyond reproach. As fake news has multiplied exponentially this election season, so have investigations by AltNews. Hopefully, this scourge will retreat after the elections are over. As a tribute to this organisation and its editors, I reproduce in the next four pages excerpts from their various posts—AltNews’ Arjun Sidharth’s round-up of political misinformation that dominated the social media in poll season: THE NEW MUCKRAKERS Inderjit Badhwar B Newspaper reportageorTV journalismnottoo longagowaspure fact-finding.You wentsniffingforthe factsortriedtodig themoutfrom wheretheylay buried.In today’sworld, thefact-checkers busythemselves withcopious researchinto whetherpublished orbroadcast materialinthe mainstreamor socialmedia,or publicutterancesby politicians,are indeedtrue. Letter from the Editor
  3. 3. Fake newspaper clip with fake quote from Mamata Banerjee. A purported newspaper clipping of a popular Bengali daily (Bartaman) was shared on social media with its headline reading: “Give me 42 seats & I’ll show you how to make the Hindus cry: Mamata.” The image had also circulated on WhatsApp. AltNews found that the image was photo- shopped. A careful glance at the clipping was sufficient to reveal that the image had been mor- phed. The font, size and colour of the words “Hindu” and “cry” do not match the words in the rest of the sentence. They are not in perfect alignment, are larger than the other words and are in a deeper shade of black. Moreover, some words were replaced from the original image. False claim of buildings in Italy owned by Gandhi family. A man points at magnificent European architec- ture and claims that Congress President Rahul Gandhi owns the lavish property. “He has looted India and bought these buildings in Italy,” the man says in Gujarati. This video was circulated widely on social media. The over one-minute clip shows a man cautioning people against Rahul Gandhi who has bought three extravagant build- ings in Italy with India’s money and gets paid hefty rent. The claim was not only false but ludicrous. The buildings showcased in the video are a part of a city square—Piazza Castello—in Turin, Italy. The square-shaped landmark houses museums, theatres and palaces, including the Royal Palace of Turin built in the 16th century. Several of the architectural complexes are world heritage sites protected by UNESCO. AltNews’ fact-check can be read here. False claim of PM Modi abusing at a rally. “What kind of language is this Mr. PM? Does it beholds the Prime Minister of the country to use profanity and that too publicly? Shocking beyond belief!! Have some respect for the chair, if nothing else.” The above message was tweeted by Gaurav Pandhi, along with a video which has been superimposed with the words “Modi said BC at a rally”. Pandhi is associated with the Congress Party. The video was shared widely not only on social media platforms but also on WhatsApp, with the narrative that the prime minister had used profane language. The assertion that Prime Minister Narendra Modi uttered the word “bh******” at the rally, is false. PM Modi had used the words “thavan(i) chhe”, which he can be heard uttering the second time in the video clip, and which has been wrongly interpreted as “bh******”. “Thavan(i) chhe” roughly translates to “Will happen/going to happen.” The classic usage is “thavani chhe”, but Modi says “thavan chhe”, which is colloquial usage. Repeatedly playing the word “thavan(i) chhe”, as was done in the video clip, creates the illusion that Modi said “bh******”. False claim of BJP candidate from Bengal dressed up as Hanuman. TMC supporter Garga Chatterjee tweeted photo- graphs of a man dressed as Hanuman and said that he was “Jagannath Sarkar, BJP MP candi- date from Ranaghat” in West Bengal (archive). The claim was circulated widely on Facebook and Twitter. The photographs viral on social media depict- ed the BJP’s recent rally in West Bengal’s Rana- ghat constituency. Dilip Ghosh, president of the BJP WB unit, had shared the images on April 22 with the caption “Roadshow with Ranaghat Lok Sabha constituency candidate Jagannath Sarkar”. Ghosh had uploaded several photographs, including the ones where a man dressed as Hanuman can be seen seated atop a jeep. Sarkar was NOT dressed as Hanuman. Misinformation about Congress leaders pos- ing with the same woman. A tweet by Renuka Jain, who is followed by Letter from the Editor Theleading fact-checkgiantis AltNews(above) withaskeletonstaff andageniusfor research.AltNews, onceconfinedto smallcornersofthe web,hasnow earnednationwide respectwithits editorsmuchin demandonpopular talkshows.Today, whenAltNews speaks,people listenbecauseits credibilityand devotiontoits missionhavebeen beyondreproach. 4 May 27, 2019
  4. 4. Modi, has gained traction not only on Twitter but also on Facebook (archive). In her tweet, Jain claimed that the Congress party had used the same elderly woman for all their photoshoots. “Congress pays her 5000 Rs. per photoshoot,” read her tweet. The claim is false. All four women might seem alike because of their old age and white hair. A closer look, however, reveals clear distinctions in physical features. Alt News juxtaposed photo- graphs of the four women for a comparative view. The second woman was photographed with BJP’s K Surendran and the fourth with Shashi Tharoor. The third elderly woman is the same one who could be seen embracing Rahul Gandhi. Haryana CM targets Rahul Gandhi via a clipped video. On April 28, Haryana Chief Minister Manohar Lal Khattar addressed an election rally in Ratia in the state. During his speech, the CM spoke about a purported video of Rahul Gandhi which was “too difficult to even talk about”. Khattar alleged that the Congress president “insulted the honour of our mothers and sisters”. He cited a video where he claimed Gandhi said that women in Uttar Pradesh can give birth to one child a week or 52 children a year. The video referred to by Khattar was mischie- vously clipped. A seven-year-old speech of Rahul Gandhi in UP’s Phulpur was lifted, clipped and circulated on social media. In the original speech, Rahul talks about the Janani Suraksha Yojna under the National Rural Health Mission, under which pregnant women get an incentive of `1,400 for institutional delivery. In that context, the Congress president had claimed that accord- ing to an RTI response, women with the same name were getting incentives every week due to corruption in the scheme. Congress IT cell head tweets photoshopped image drawing a parallel between PM Modi and Hitler. “What are your thoughts?” tweet- ed Divya Spandana, social media head of the Congress party, along with two photographs. One was of Nazi leader Adolf Hitler, the other was of Modi. The same image had been circulated by detrac- tors of Modi in 2018 as well. It was debunked by Alt News. A reverse image search on Google revealed that Hitler’s image used in the post is photoshopped. In the original image, he is not holding the child’s ears but resting his hands on her shoulders. An article in The Sun published the original image which was apparently clicked to portray the Nazi leader as a “personal friend and guardian of the German youth”. Bengal BJP doctors video to claim Mamata Banerjee asked people to vote for the BJP. “The impact of MODI TSUNAMI – Mamata Banerjee appeals everyone to vote for BJP!”—the official Twitter handle of Bengal BJP declared in a tweet that the chief minister of West Bengal, Mamata Banerjee, appealed to voters to vote for the BJP in a rally. Accompanying the tweet was an 18-second video in which her words—“BJP shorkar ke vote diye”—were played in a loop. The English translation of the statement is “vote for BJP”. It turns out that the Bengal BJP had tweeted a doctored video which was clipped and played in a loop to give a misleading impression. Banerjee addressed a rally in Khanakul, West Bengal, on April 23. While ending her speech, she asked the people to vote out the BJP, with a sarcastic tone to her words. Her words: “6 May aasche din, ekhane bhalo kore gonotontroye BJP Sarkar ke vote diye bhalo kore kobor din, bhalo kore kobor din, bhalo kore kobor din”, can be approximately translated as: “On May 6, cast your vote for the BJP government and give them a proper burial, give them a proper burial, | INDIA LEGAL | May 27, 2019 5 SPREADING FALSEHOOD (Above) AltNews found that the image was photoshopped and morphed. Moreover, the font, size and colour of the words “Hindu” and “cry” do not match the words in the rest of the sentence
  5. 5. give them a proper burial.” The part where she says “bhalo kore kobor din”, which literally trans- lates to “put them in the grave”, was clipped out by the Bengal BJP. Instead, the part where she sarcastically says “vote for BJP” was retained and played in a loop. AAP social media head tweets 2013 video to portray the Congress on shaky ground in Delhi. People of Delhi have understood that @INCIndia and @SheilaDikshit are merely vote-cutters. If you dont believe it then watch this 24 second video. After today’s #AAPkaManifesto, the 2-3% people who would have voted for Congress will now not. (translation). The above message was tweeted by Ankit Lal, the social media in-charge of AAP, along with a video clip showing former Delhi CM and senior Congress leader Sheila Dikshit. The tweet ref- erred to the Congress party as a vote katua, inca- pable of garnering the popular mandate in Delhi for the Lok Sabha election of 2019. The video which was posted by Lal on his Twitter account was misleading. It is not a recent news report. It is from November 2013. NDTV had reported the turnout at the Congress party’s rally in Ambedkar Nagar, ahead of the 2013 assembly election which took place in December that year. The INC was the biggest loser in the election, plunging from 43 seats to eight. Photoshopped image of Priyanka Gandhi wearing a cross. A photograph of Priyanka Gandhi wearing a cross around her neck was shared widely on social media. Several pro-BJP Facebook pages posted an image, in which two photographs of Priyanka Gandhi were juxtaposed. In one photo- graph, she is seen wearing a cross. It has been claimed that the picture was taken in Kerala. In the other image on the right, she is sporting a rudraksha necklace. This photo was claimed to be from Uttar Pradesh. The attempt was to high- light the supposed hypocrisy and skullduggery of Priyanka Gandhi. The picture of her wearing a cross is photo- shopped. AltNews had fact-checked the photo- graph and found that she was actually wearing a pendant, which was replaced with a cross by photoshoping. The original photograph was from a rally in UP in 2017. Photoshopped image shows Rahul Gandhi and Mamata Banerjee with Pakistan PM and army chief. An image of Pakistan Prime Minister Imran Khan interacting with the country’s army chief, Qamar Javed Bajwa, was circulated on social media. Congress leaders Shatrughan Sinha and Navjot Singh Sidhu, Mamata Banerjee and Rahul Gandhi can also be seen in the photo- graph, sitting in a corner. It was circulated with the caption “If you vote for Congress, you will be able to vote for Pakistan. Look at the pic- ture, how are the slaves of Pakistan sitting in the corner.” Alt News found that the original photo, in which no Indian leader is seen, was digitally altered. The image was photoshopped by Twitter user @Atheist_Krishna who had posted it on Letter from the Editor 6 May 27, 2019 FAR FROM REALITY (Above) A TMC supporter circulated pictures of a man dressed as Hanuman, saying he was “Jagannath Sarkar, BJP MP candidate from Ranaghat” in West Bengal. But the truth is Sarkar was NOT dressed as Hanuman at all (Above right) An image of Pakistan PM Imran Khan interacting with his country’s army chief was circulated on social media. Congress leaders Shatrughan Sinha and Navjot Singh Sidhu, Mamata Banerjee and Rahul Gandhi can also be seen in the frame. But the original photo has no Indian leader
  6. 6. April 5 with the caption “Opposition reaches Pakistan to gather evidence for the death of ter- rorists in Balakot” —which suggests that he took a sarcastic jibe at the opposition leaders. Photoshopped endorsement: Ranveer Singh and Deepika Padukone shown campaigning for BJP. A photograph of movie stars Ranveer Singh and Deepika Padukone was posted on Facebook. It showed the two sporting saffron scarves on which “Vote for BJP N Modi” is printed. The text accompanying the image read: “Press the lotus button, become a part of the nation’s progress.” As expected, the image was digitally manipu- lated. AltNews searched for the image on Google and found the real photograph, which was clicked on November 30, 2018. Singh and Padukone had visited the Siddhivinayak temple in Mumbai, where the picture was clicked. It was carried by several media publications. Republic TV falsely portrays man praising PM Modi as a Congress MLA. “Congress MLA, Anil Upadhyay also becomes a disciple/fan of Modi, lavishes praise on him.” The “Breaking News” headline, telecast on April 27 by Republic TV’s Hello Bharat programme, car- ried a video of a person praising Modi and saying that only the corrupt want him to lose. The anchors further explained what they called the “big news”, saying that not only the common citi- zens of the country but also Modi’s political opponents were full of praise for him. They introduced the person as Anil Upadhyay, a Congress MLA from Madhya Pradesh. Republic TV had clearly misreported. AltNews found that there was no Congress MLA by the name of Anil Upadhyay. The person in the video was identified by The Quint as Mohan (Munna) Pandey. Several videos of Pandey have been shared by Twitter user Tanmay Shankar (@Shanktan). In all these videos, he is seen as making a very spirited and emotional case for supporting Modi. Speaking to The Quint, Shankar confirmed that the person is Mohan Pandey and known to him personally. ABP News anchor defends Smriti Irani over degree row with falsehood. In a debate broadcast by ABP News from Darbhanga in Bihar, the question of Smriti Irani’s degree once again came to the fore when a person from the audience raised a question over her questionable educational qualifications. In response, the ABP News anchor said that Irani has a Master of Arts (MA) degree. The relevant portion of the discussion can be seen at 38:16 minutes in the video. In response to a question raised by a member of the audience, ABP News anchor Rubika Liyaquat promptly responded, saying, “(She has done MA through correspon- dence, she has done MA, she has done MA— translation.” This is not true, as Irani’s poll affidavit for 2019 clearly mentions that she had not complet- ed her three-year degree course. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | May 27, 2019 7 THE ART OF FAKING (Above left) A photograph of Priyanka Gandhi wearing a cross around her neck was shared on social media to portray her as a hypocrite. She was actually wearing a pendant (Above) A digitally manipulated image of Bollywood stars Ranveer Singh and Deepika Padukone was posted on Facebook, showing them with saffron scarves with “Vote for BJP N Modi” written on them
  7. 7. ContentsVOLUME XII ISSUE28 MAY27,2019 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. Chief Patron Justice MN Venkatachaliah Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas 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) 8 May 27, 2019 12Crime and Punishment A PIL before the Supreme Court has sought that consecutive rather than concurrent sentences be awarded to those convicted of multiple offences. Knee-jerk reliance on incarceration as a panacea for crime is counter-productive, writes Prof G Mohan Gopal LEAD 22Demolition Day More than 350 families may be left homeless as the apex court has ordered the demolition of five apartment complexes built on the Kochi waterfront in Kerala in violation of environmental rules SUPREMECOURT 18Bone of Contention The Supreme Court has agreed to hear a petition which calls for regulation and censorship of content transmitted on the internet by online entertainment service providers and intermediaries
  8. 8. POLITICS Unwarranted Breach In another instance of politicisation of the armed forces, a complaint was received by the district electoral officer in the Ladakh parliamentary constituency that senior army officers tried to influence the voting preferences of lower ranks | INDIA LEGAL | May 27, 2019 9 REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Cover Design & Illustration: ANTHONY LAWRENCE Ringside .........................10 Courts.............................11 Media Watch ..................31 Satire ..............................50 45 Under the Scanner A petition has been filed in the Delhi HC on First Responder Vehicles which provide first-aid to patients until an ambulance arrives. A column also critically exam- ines this issue 27 COURTS Power Play SEBI should re-think on allowing shares with differential voting rights to be listed on the stock exchange as it results in the management being unaccountable to market discipline 38 ECONOMY GLOBALTRENDS Provocateur In Chief 41 Each new day sees US President Donald Trump indulging in something aimed at simultaneously provoking the Opposition and rallying his cult-like following Tumultuous Times Ever since the suicide bombings last month, Sri Lanka has gone into overdrive and imposed emergency with unprece- dented powers for the army and police. Are the bad old days back again? Goodbye to School? The Delhi HC has issued notice to the AAP government on circulars aimed at denying re-admission to students who failed the CBSE Class X exams 30 LEGALEYE Disturbing Portents? It is important that Justices do not resile from their own decisions on the Bench and that they observe the canons of constitutional rectitude promoting institutional integrity, writes Prof Upendra Baxi 24 42 In a Bind A complex gang rape case that took place in Punjab in 2010 has embroiled two judges and some senior advocates. The Punjab and Haryana High Court is likely to tread carefully in dealing with them 48 FOCUS IBC Decoded The first-of-its-kind legal conclave held recently in Mumbai deliberated on issues affecting the Insolvency and Bankruptcy Code and brought the best of India’s legal minds together 32 SPOTLIGHT
  9. 9. 10 May 27, 2019 “ RINGSIDE “My wife has that much strength and moral authority that she will never lie. This is my answer.” —Congress leader Navjot Singh Sidhu on his wife's allega- tion that Punjab CM Amarinder Singh didn’t allow her to contest from Chandigarh “Nathuram Godse was a patriot and will remain so. People calling him a terrorist should introspect. They will be given a befitting reply in these elections.” —The BJP candidate from Bhopal Lok Sabha constituency, Pragya Singh Thakur, to a news agency “If we thought so far ahead, this gath- bandhan would not have been there. I don’t think about what will happen tomorrow. The alli- ance is based on what is going to happen today....” —SP chief Akhilesh Yadav on a likely tus- sle with Mayawati for the UP CM’s post “Despite its cultured and intellectual pop- ulation, Goa’s MLAs defect from par- ties....It is probably influenced by the US. Marriages do not last in that country.... To keep these people...in one place and run a gov- ernment is difficult.” —Union minister Nitin Gadkari “Narendra Modi speaks with hatred. He insults my father, grandmother and great grandfather but I will never speak about his par- ents in my life. I will rather die.... I will... defeat him with love.” —Congress president Rahul Gandhi at a rally in MP “I will quit politics if Modi and Sounda- rarajan prove that I am in touch with the BJP. If they fail to prove, will they resign?” —DMK chief MK Stalin on the state BJP chief’s remark that he was in talks with them for a tie- “This is a new life, a new beginning for me. I am very happy...we just wanted healthy chil- dren.... My daugh- ters have been born on Mother’s Day and I am doubly happy because of that....” —Irom Sharmila, the ‘Iron Lady of India’ and civil rights activist who gave birth to twins on Mother's Day “He is the biggest liar. I have never seen a PM who speaks only lies. He should be made to squat, hold- ing his ears, a thousand times for speaking lies and destroying the heritage of Bengal. If you can prove that TMC workers were involved in the (vandalis- ing) incident, then I will quit politics. If BJP work- ers are involved, then I will send you to jail.” —West Bengal CM Mamata Banerjee after PM Modi blamed the TMC for breaking the bust of Ishwar Chandra Vidyasagar Anthony Lawrence Heavy cloud cover expected over National Capital Region for next few days, no chance of Pakistan air strike
  10. 10. Courts | INDIA LEGAL | May 27, 2019 11 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team SC irked over BJP member’s detention The Supreme Court chastised the West Bengal government for keeping BJP member Priyanka Sharma in jail for one more night after the Court had ordered her immediate release. Sharma was arr- ested after she shared a photo in which West Bengal Chief Minister Mamata Banerjee’s face had been morphed on the face of actor Priyanka Chopra. In the orig- inal picture, the actor was photographed at the MET Gala in New York. A vacation bench comprising Justices Indira Banerjee and Sanjiv Khanna said that failure to release her immediately as per the directions of the Court amounted to contempt of court. No further SC relief for former Kolkata CP The Supreme Court withdrew the inter- im protection granted to former Kol- kata police commissioner Rajeev Kumar from arrest by the CBI. Kumar is alleged to have tampered with evidence related to the Saradha chit fund scam. A vacation bench of CJI Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna gave him seven days to seek legal remedies. The bench was hearing a plea by the CBI which had sought its permis- sion to arrest Kumar for ques- tioning in the Saradha case. On May 2, the Court had reserved order on whet- her to revoke its Feb- ruary order in which it granted Kumar protection from arrest by the CBI. Let candidates choose cadres: SC The Supreme Court Collegium recom- mended the names of four high court judges for appointment as chief jus- tices of the High Courts of Delhi, Madhya Pradesh, Himachal Pradesh and Telangana. Justice DN Patel, who is a senior puisne judge of the Gujarat HC and is at pres- ent functioning, on trans- fer, in the Jharkhand HC, has been recommended for the Delhi HC. Justice V Ramasubramanian, who is the seniormost judge in the Madras HC and is at present functioning, on transfer, in the Telangana HC, has been recom- mended for the Himachal Pradesh HC. Justice AA Kureshi, who is the seniormost judge in the Gujarat HC and is at pres- ent functioning in the Bombay HC, has been recommended for the Madhya Pradesh HC. Justice RS Chauhan, who is the seniormost judge in the Rajasthan HC and is at present functioning in the Telangana HC as acting chief justice has been rec- ommended as chief jus- tice of the Telangana HC. SC Collegium recommends chief justices for 4 HCs Hearing the centre’s plea challenging the Delhi High Court’s May 3 order quashing the cadre allocation of IAS and IPS officers of the 2018 batch, the Supreme Court modified the impugned order and granted 19 aggrieved candi- dates the liberty to choose their cadre by marking their preferences, even as it ruled that the original allocation was not to be disturbed. The Delhi High Court verdict came on four separate petitions filed by various officers challenging a central government notification allocating cadres to IAS and IPS candidates on the basis of results of the Civil Services Examination (CSE), 2017. The High Court had accepted the petitioners’ con- tention that the interpretation and imple- mentation of the Cadre Allocation Policy–2017 was unreasonable and unfair as the more meritorious candi- dates had been denied the cadres to which they were otherwise entitled according to their preference. The High Court had also directed the centre to redo the entire cadre allocation exercise. During the hearing in the Supreme Court, a vacation bench comprising Justices Indira Banerjee and Sanjiv Khanna referred to the High Court’s find- ing that the language of the circular was ambiguous. In response, the centre, rep- resented by Solicitor General Tushar Mehta, told the bench that “only 19 can- didates have not understood the circular but all others have understood it. If we start resolving it, we will have to change the cadre of every candidate”.
  11. 11. Lead/ Column/ Criminal Justice System Prof G Mohan Gopal 12 May 27, 2019 N the northern and southern walls of the magnificent Diwan-i- Khas, once home to the fabled Peacock Throne in the 380-year-old Delhi Red Fort, are inscribed the lyrical words of the immortal 13th century Sufi poet Amir Khusro: “Gar firdaus bar-rue zamin ast, hami asto, hamin asto, hamin ast (If there be a paradise on earth, it is this, it is this, it is this).” Twenty-one kilometres west of the Red Fort stands another great monu- ment of power—the 61-year-old Tihar jail, said to be amongst the largest pris- ons in the world. On the soul of each accursed inmate of Tihar are inscribed the tragic words: “If there be a hell on earth, it is this, it is this, it is this.” A 2014 India Today headline cap- tures Tihar succinctly: “A dangerous underworld of lethal weapons, violence, homosexual assault [and] drug addic- Crime and Punishment Photos: UNI APILbeforetheSupremeCourtasksforconsecutiverather thanconcurrentsentencestobeawardedtothoseconvicted ofmultipleoffences.Knee-jerkrelianceonincarcerationasa panaceaforcrimeiscounter-productive O BETTER FACILITIES NEEDED Tihar jail is amongst the largest prisons in the world, but it has poor amenities
  12. 12. The Supreme Court tried to address the breakdown of the rule of law in pris- ons by laying down critical legal princi- ples to constrain State power through its Krishna Iyer-led “prison jurisprudence”. This jurisprudence has undoubtedly pro- vided important tools for prisoners to defend their constitutional rights. However, it has not had a significant corrective impact on the quotidien law- lessness of prisons, as evidenced by the brutal torture, rape and murder of 38- year-old woman prisoner Manjula Shetye by Byculla women’s prison staff two years ago—for daring to question jail officers on why two eggs and five pieces of pav (bread) were missing from the morning rations of the prison- ers. Shetye’s murder led to a riot in the women’s prison. I n Accused ‘X’ vs. State of Maharashtra (judgment dated April 12, 2019), the Supreme Court reiterated the constitutional right, including of prisoners, against excessive pun- ishment. The Court said: “Article 20 of the Constitution guarantees individuals the right not to be subjected to excessive criminal penalty. The right flows from the basic tenet of propor- tionality. By protecting even those convicted of heinous cri- mes, this right reaffirms the duty to respect the dignity of all persons. Therefore, our Cons- titution embodies broad and idealistic concepts of dignity, civilised standards, humanity, and decency against which | INDIA LEGAL | May 27, 2019 13 tion.” Filled beyond its brim (over 15,000 inmates live in a facility meant for 10,000), Tihar has thousands of poor, young, illiterate or barely educated men and women belonging to the mar- ginalised social groups, most of whom have not even been found guilty of a crime (over 80 percent are undertrials). Like other prisons in India and in many countries, it is a house of horrors, a dark space of impunity, where unspeakable crimes are committed by criminal custodians and hardcore inmates. Prisons rob young undertrials of their innocence, groom them into criminality, violence and brutality and admit them into membership in under- world gangs. Tihar, like other prisons, is overcrowded, dingy and filthy. Inmates lack basic amenities including food and medical care. Many die in prison, although their deaths are often attrib- uted to suicide. In 2011, the Delhi High Court awarded a “token” compensation to the widow of renowned businessman Rajan Pillai 16 years after he died due to lack of medical care in Tihar while he was an inmate there. Filledbeyonditsbrim(over 15,000inmatesliveinafacility meantfor10,000),Tiharhas thousandsofpoor,young, illiterateorbarelyeducatedmen andwomenbelongingtothe marginalisedsocialgroups.
  13. 13. penal measures have to be evaluated.” The treatment of our prisoners violates this constitutional right. Their treatment also violates global standards. Article 5 of the Universal Declaration of Human Rights (UDHR) says: “No one shall be subjected to tor- ture or to cruel, inhuman or degrading treatment or punishment.” The English Bill of Rights of 1689 prohibits inflic- tion of cruel and unusual punishments. The 1791 French Revolutionary Penal Code requires that “penalties should be proportional to the crimes for which they were inflicted, and they are intend- ed”. The 1791 Eighth Amendment to the US Constitution prohibits “cruel and unusual punishment”. Against this background, we should be deeply concerned that a public inter- est petition (PIL) has been filed in the Supreme Court asking, in effect, for more prisoners to be sent to our crum- bling and dysfunctional prisons, to be subjected to abuse and violence there. Media reports say that the petition asks the Supreme Court for directions that consecutive rather than concurrent sen- tences be awarded to those convicted of multiple offences under laws such as the Unlawful Activities (Prevention) Act, 1967, Prevention of Corruption Act, Prevention of Money Laundering Act, Foreign Contributions Regulation Act and Prohibition of Benami Property Transaction Act. While consecutive sen- tences are permissible under Indian law, Section 31(2)(a) of the Criminal Procedure Code limits the total cumula- tive sentence to 14 years (although an apparently erroneous view has been can- vassed that this limitation does not apply to sentences imposed by higher courts including Sessions and Additional Sessions courts). The purpose of this article is not to comment on the PIL while it is pending in the Supreme Court. The purpose is to question the implicit assumption of the PIL that the best way to respond to the crimes with which it is concerned (cor- ruption, economic offences, terrorism) is to increase the length of sentences and send more people to prison. The article also suggests that, rather than seek ad hoc changes through PILs, there is a ne- ed for a comprehensive national debate on key issues and the development of a new legislative vision on criminal justice as a basis to reform and strengthen it. First, is the most effective way to address the crimes with which the PIL is concerned increasing incarceration through mandatory consecutive sentenc- ing? The approach in the petition is said to be inspired in part by a reported 2016 suggestion of Justice Arijit Pasayat, retired judge of the Supreme Court and deputy chairman of the Supreme Court- appointed SIT on black money that India should follow the US example of punishing economic offenders for up to 150 years through consecutive sentenc- ing. The learned judge is right in look- ing to the US as a role model for long prison sentences. Cumulative sentences in the US often extend to multiple cen- turies. One of the most egregious exam- ples is that of 64-year-old Terry Nichols who is serving 161 consecutive life sen- tences without parole (yes, you read that right) in a prison in Colorado. Nichols’ sentence is widely considered to be the longest sentence awarded in the US. He was convicted of several crimes for his part in the 1995 bombing of a US federal office building in Oklahoma which killed 168 and injured over 680. However, sub- sequent developments raise serious doubt whether the 161 consecutive life sentences given to him and the execu- tion of fellow accused Timothy McVeigh for his role in the same terrorist attack have had any deterrent effect. T he US has the highest prison pop- ulation in the world (over 21 lakh and over 60 lakh in the correc- tion system) and the highest per-capita incarceration rate (655 persons per one lakh population). The US saw an explo- sion of its prison population from about two lakh in 1974 to the current level of around 21 lakh in 2017 (an increase of over 900 percent, whereas the US popu- lation expanded only by 52 percent in the same period from around 210 mil- lion to about 320 million). The total 14 May 2 , 2019 InmatesinTiharjail,andmanyother prisonsinIndia,lackbasicamenities includingfoodandmedicalcare.Many dieinprison,althoughtheirdeathsare oftenattributedtosuicide. Lead/ Column/ Criminal Justice System/ Prof G Mohan Gopal FAMILY TIES A woman tying a rakhi on the wrist of her brother in a Jaipur jail
  14. 14. | INDIA LEGAL | May 27, 2019 15 incidence of crime in the US was 1.02 crore in 1974. It peaked at 1.49 crore in 1991 (an increase of about 46 percent) and then declined steadily over the last quarter-century to 89 lakh in 2017. Did putting more people in prison for longer bring down crime in the US? In an article, Reducing Prison Admissions and Length of Stay to End Mass Incarceration, Todd Clear argues: “For a decade, evidence has mounted that the massive penal system was not only cost- ly, but also ineffective (and in important ways, counterproductive). These argu- ments have been persuasive to people on all points along the political spectrum. They were central to the conservative Right on Crime position paper, where they carried more weight than mere cost arguments.” Clear also says: “For the first time in 35 years, the size of all correc- tional populations—prisons, jails, and probationers/parolees—is dropping, at about 2 percent annually for the last two years. No doubt the current fiscal crisis is a main driver of this turn-about. States face dire fiscal choices, and big prison populations increasingly look like luxuries that need to be trimmed back. But the fiscal realities have just been the wake-up call.” There is very little evidence that long incarceration is a stand-alone silver bul- let for preventing crime in the US or elsewhere. Some potential offenders may be deterred by the risk of long imprison- ment in certain circumstances for some crimes. Others may not. That the length of incarceration will, in and by itself, deter crime cannot, however, be seen as a secular rule that applies equally to all offenders and all crimes. We have seen, for example, the futility of enha- nced stringent punishment for rape in response to the Nirbhaya tragedy as a deterrent. It is well-recognised that deterrence is the result of a complex and varied set of factors. For example, it has been reported that “air pollution is a major driver of crime in London”, according to new research by the London School of Economics. Research in Mexico shows that reducing economic disparities leads to reduction of crime. It has also been reported in a recent UNDP report that “the increase in single parent households and the lack of capacity of govern- ments—in terms of police forces, judicial system and institutions—to adequately address security challenges, also explains the recent rise in crime and violence in Mexico and in Latin America as a whole”. The totality of social, economic, political and institutional causative fac- tors for each category of crime needs to be effectively tackled for sustainable reduction in, and prevention of, crime. Targeted expansion of incarceration may well be a necessary part of this broader response. However, knee-jerk, “tough on crime” over-reliance on incarceration as a stand-alone panacea for crime is unsustainable and counter-productive. T here is another concern. A policy shift to consecutive sentences, demanded by the PIL, will increase prison terms in India. In the medium-term, given fiscal constraints, India will have no choice but to follow the US example and privatise its prisons, creating a US-style “prison-industrial” complex in which investors in for-profit private prisons become powerful lobby- ists for laws that expand criminalisation and extend prison terms. For all these reasons, the implicit assumption that increasing the duration of sentences will deter crime does not seem to be sound. We urgently need a national debate on our current approach to crime and punishment. Punishment literally means, to put it simply, causing pain. Can a modern, democratic State deliber- ately cause pain to its citizens as retribu- tion for crime? Especially when the vast majority of those punished are from the most marginalised and defenceless sections of society? What is achieved by throwing people into a wretched prison for long periods and throwing away Thepurposeofthisarticleisto questiontheassumptionofthePILthat thebestwaytorespondtocrimesisto increasethelengthofsentencesand sendmorepeopletoprison. RESTORATIVE GOALS Nirbhaya gang rape convicts Akshay Thakur and Pawan Gupta (face covered) being taken to the High Court in Delhi
  15. 15. 16 May 27, 2019 the key? What is the most democratic alterna- tive way in which to move beyond pun- ishment and move towards restorative goals in response to crime? How can we move our focus more upstream, to focus on effective social, political and economic measures to pre- vent crime? Successful examples are available in Northern Europe, such as open prisons in Norway. Our current response to crime is cen- tred around the police and the courts. They do not have capacity or skills to deal with a crime holistically. How can we respond to a crime using a broader range of institutions, tools and resources to address the needs of the victim as well as the accused? Today, violence is at the centre of State response to crime. As a country that fought for its freedom on the basis of non-violence and compas- sion, we need to consider how to make the criminal justice system similar and more reflective of the spirit and ethos of our Republic. How do we get the criminal justice system to work for the rights of the pow- erless rather than become for the main part, an engine to punish the poor? We have seen, without prejudice for the merits of the case, how a Dalit woman complained about crimes committed against her by the chief justice of India, but the high office of the person accused has frozen the wheels of criminal justice. How do we democratise the criminal courts? Why are we not de-concentrat- ing the enormous centralisation of power in Indian trial judges which enhances risk of error and abuse by moving closer to the common law tradi- tion of separating investigation, prose- cution, fact and guilt-finding (role of juries) and upholding the rule of law, justice and rights (role of the judge) functions? W hy don’t we act on various long-standing proposals to ensure genuine accountability of lawyers, the police, the prosecutor and the judge? Why are we not urgently and strictly improving the professional standards of all members of the court— judges, lawyers, prosecutors and court staff—to bring them on a par with glob- al standards? Why don’t we establish a professional cadre of public defenders? British judge Lord Patrick Devlin is said to have referred to the jury system as “the flame that shows us that democ- racy is still alive”. Why have we aban- doned this central democratic voice in the criminal justice system? An important structural reason for prisons becoming cesspools of abuse and corruption is the extreme imbalance of power between the inmates and the jail staff. What can be done to redress that power imbalance and improve the func- tioning of justice institutions? Starting in the 18th century, the world began to leave behind what was then considered the optimal response to crime—killing, maiming, torture and other forms of corporal punishment inflicted on the accused. That epochal change happened because it dawned on people that, in the words of Monte- squieu: “As freedom advances, the sever- ity of the penal law decreases.” This par- adigm shift led to the establishment of modern penitentiaries (places of penance rather than pain), starting in Pennsylvania, as the better way to respond to crime. Two centuries later, it is time to move on again, to even more enlightened, scientific, modern, rational, cost-effective and humane ways of deal- ing with crime. The future abandonment of prisons is certain. The only question is, will we have the courage to think beyond incarceration today? It is high time our Parliament and state legislatures developed a post-colo- nial, post-feudal, modern, democratic, liberal, comprehensive criminal justice policy that reflects the ethos of our dem- ocratic, secular, liberal, socialist Republic as well as our civilisational val- ues of non-violence and compassion. We cannot any longer lurch from judgment to judgment, picking on a patchwork of ad hoc ideas that are unable to weave into a tapestry of effec- tive criminal justice. We urgently need a national debate and a national consen- sus on criminal justice reform and on moving beyond incarceration. The writer was former Director, National Judicial Academy and former VC, National Law School of India, Bangalore Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com LONG HAULS IN US PRISONS A prisoner on death row in a jail in San Quentin, California Lead/ Column/ Criminal Justice System/ Prof G Mohan Gopal
  16. 16. Catch Us Every Saturday at 8 pm and Sunday at 2 pm
  17. 17. Supreme Court/ Online Entertainment 18 May 27, 2019 HE question whether online entertainment service providers and intermedi- aries like Netflix, Amazon Prime Video, Hotstar, etc, should come under a regula- tory regime and be subjected to prior censorship is not easy to decide. Those who argue in favour of regulation for such content say it is inherently dis- criminatory to exempt the internet from it when similar content in theatres or television channels is subject to regulation and censorship. Those who argue against such regulation underline the practical difficulties of regulating the internet. On May 10, a Supreme Court bench of Chief Justice Ranjan Gogoi and Justice Sanjiv Khanna agreed to hear an appeal filed by Delhi-based NGO Justice for Rights Foundation against a Delhi High Court’s order of February 8. The High Court bench of Chief Justice Rajendra Menon and Justice V Kameswar Rao had dismissed the Foundation’s PIL seeking directions to the centre to frame legal provisions/guide- lines to regulate online plat- forms and content broadcast through them. It also sought directions to all online plat- forms to remove legally restricted content with immediate effect. The centre submitted to the High Court that the online platforms are not required to obtain any licence from the Ministry of Information and Broadcasting for display- ing their content and the same is not regulated by it. The Union Ministry of Electronics and Information Technology (MEIT) too informed the High Court that it does not regulate content on the internet and there was no provision for regulating or licensing an organisation or establishment for putting up content on the internet. However, MEIT submitted that the pro- visions of the Information and Techn- ology Act, 2000, are applicable, and the concerned statutory authority exercising jurisdiction under the Act can take action under Section 69. This section includes direc- tion for interception, monitoring or decryption of information, blocking of content, etc. MEIT further claimed that under Section 66A, punishments have been provided for sending offensive messages through communication services, and so on. Punishments are also provided for publishing or transmitting obscene material in any electronic form under Section 67. Section 67A prescribes pun- ishment for publishing or transmitting of material containing sexually explicit act, etc. in electronic form. Section 67B provides for pun- ishment for publishing or transmitting material depicting children in bad taste. More power is conferred under Section 68 to the Controller to give directions in such cases. However, on March 12, a High Court bench of Chief Justice Rajendra Menon and Justice Anup Jairam Bhambhani corrected the February 8 order insofar as it was erroneously held that action against online platforms could be taken under Section 66A of the ITA. This pro- vision was held ultra vires by the Supreme Court in Shreya Singhal v Union of India in 2015. “Therefore, ref- erence to Section 66A in para 4 of order dated 08.02.2019 is deleted and the petitioner is at liberty to take recourse under the relevant provisions of the ITA, 2000,” the bench stated. But for this correction, the bench reiterated its February 8 order which expressed the Court’s inability to issue a mandamus for framing general guide- lines or provisions when there are strin- gent provisions already in place under ITA. “In case the petitioner feels that any of the contents exhibited or trans- Contentious Content Shouldtheprogrammestransmittedthroughtheinternetby socialmediagiantsberegulatedandcensored?TheCourthas othercasestofallbackontoarriveatafinalverdict By Venkatasubramanian T ThecentresubmittedtotheHCthat onlineplatformsarenotrequiredto obtainalicencefromtheMinistryof InformationandBroadcastingfor contentandnoristhatregulatedbyit.
  18. 18. Filed by Padmanabh Shankar, the peti- tion prays for a declaration that trans- mission or broadcast of any films, cine- ma, serials and other multimedia con- tent through the internet shall come within the definition of Section 2(c) of the Cinematograph Act, 1952. Section 2(c) defines cinematograph as including any apparatus for the representation of moving pictures or series of pictures. Watching the said multi-media content intramural would amount to public exhibition, thereby requiring regulation. It wanted the Court to direct the centre to come out with suitable legislation to set up a board or authority to sanction the films, cinema, serials and other mul- timedia content transmitted or broad- cast through the internet for public exhibition with the help of advisory pan- els at regional centres. In this case, Netflix, YouTube, Hotstar, Amazon Prime and Alt Digital Media Entertainment Limited have been named as respondents. T hrough the Cinematograph Act, unrestricted public exhibition of films which affect human sensi- bilities by showing excess of vulgarity, obscenity or depravity, or scenes degrad- ing women in any manner are largely contained. The Act has also, more or less successfully, regulated or prevented the usage of words which are contemp- tuous of social, religious practices, etc. Shankar cited relevant case laws to support his prayers. In K.A. Abbas v Union of India (1970), the Supreme Court justified censorship of films because a film motivates thought and action and assures a high degree of attention and retention as compared to the printed word. Therefore, it has as much potential for evil as it has for good and has an equal potential to instil or cultivate violent or good behaviour, the Court had held. In Amitabh Bacchhan Corporation Ltd. V Om Pal Singh Hoon (1996), the Delhi High Court held that producers and directors cannot create a taste for sex and violence and contend that there is popular demand for the same. Constitutional values and statutory standards as interpreted by the Supreme Court have to guide us; it is not the shifting popular will, but our | INDIA LEGAL | May 27, 2019 19 UNCUT AND STREAMING Online entertainment service providers have a free playing field mitted by the organisations detailed in the writ petition violates the statutory provisions of the ITA or the Rule and contains prohibitory material as is detailed therein, the petitioner can very well make a complaint under the aforesaid provision to the statutory authority and we are hopeful that the authorities shall look into the matter,” the bench concluded before dismissing the petition. The centre submitted before the High Court that although no general power for regulation of material in the internet platform is available, in case of misuse, then ITA provides for deterrent action to be taken by the competent statutory authority “as and when com- plaints are received”. The Foundation alleged in its peti- tion that due to the absence of a licens- ing or regulating body, the respondents are creating a special class of broadcast- ers and discriminating against cus- tomers, regular movie producers, cable TV operators and D2H operators. “We are not asking for a ban on online enter- tainment, but only seeking regulation, and pre-screening scrutiny of the con- tent,” Satyam Singh Rajput, founder and national president of the Justice for Rights Foundation told India Legal. A similar petition is pending before the Karnataka High Court, which too has issued a notice to the respondents. “Wearenotaskingforabanon onlineentertainment,butonlyseeking regulation,andpre-screening scrutinyofthecontent.” —SatyamSinghRajput,founder, JusticeforRightsFoundation thewrap.com
  19. 19. 20 May 27, 2019 fundamental assessments of human val- ues and the purpose of society that should govern, the Court observed. In S Rangarajan vs P Jagjeevan Ram, (1989), the Supreme Court held that in the name of innovation, we cannot throw away general human morality and wisdom. The Censor Board, it said, need not have an orthodox or conservative look, but must display more sensitivity to the motives, which have a markedly deleterious effect to lower the moral standards of the viewers, especially the young. Shankar, in his petition, points to the flaws in the existing legal regime, which limit our potential to regulate the trans- mission of entertainment through the internet. As per Section 79 of the ITA, under certain circumstances, intermediaries are exempted from liability. Any person who provides internet service would be called an intermediary. Intermediaries like Google, Yahoo, Netflix and Hotstar have either a policy document or an agreement with their content generators which gives them the right to decide whether they are going to publish the content or transmit the same to users. As they take up the responsibility of deciding whose and which content can be transmitted by them, they cannot claim any protection under Section 79 of the ITA, Shankar contends in his petition. I n Shreya Singhal, the Supreme Court observed: “Section 79 being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. Under Section 69A, blocking can take place only by a reasoned order after comply- ing with several procedural safeguards including a hearing to the originator and intermediary. There are only two ways in which a blocking order can be passed—one by the designated officer after complying with the 2009 rules and the other by the designated officer when he has to follow an order passed by the competent court.” Shankar’s plea for judicial interven- tion to ensure regulation of the internet relies on the following grounds: It is only by the intervention of the Supreme Court in the Hero Cup judgment (Secretary, MIB v Cricket Association of Bengal, 1995) that the foundation was laid for regulation of content broadcast by cable TV operators through cinema and television. Even though the Cinematograph Act or the Cable Television Network Regulation Act of 1995 are silent with regard to broadcast- ing of films, cinema, serials and other multimedia content via internet, the law should be declared to state that the Acts shall apply for the same. In Laxmi Video Theatres vs State of Haryana (1993), the Supreme Court interpreted Section 2(c) of the Cinematograph Act to include DVDs and VCRs within the meaning of the word “apparatus” and consequently held that the Act shall also apply to films broadcast through VCRs, DVDs, and so on. The petition cites a case in Uttarakhand wherein a Class Xth girl was brutally gang raped by two minors, who admitted having watched porno- graphic material on the internet, before the commission of the offence. In Super Cassette Limited v Board of Film Certificate and others, it was held that watching a movie through the medium of DVDs and VCDs would amount to public exhibition. Shankar, therefore, argued that even if an individ- ual watches any movies or films on the internet within the four walls of his home, it would amount to public exhibi- tion, and hence, regulation is justified. It is likely that the Supreme Court may transfer the pending petition before the Karnataka HC to itself when it hears the Foundation’s appeal against the Delhi High Court’s February 8 order. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com EASY ACCESS Online platforms allow viewers to watch content that won’t reach theatres or TV Asimilarpetitionispendingbeforethe KarnatakaHighCourt,whichtoohas issuedanoticetotherespondents. PetitionerPadmanabhShankarhascited relevantcaselawstosupporthisplea. Supreme Court/ Online Entertainment bloody-disgusting.com
  20. 20. Supreme Court/Illegal Constructions 22 May 27, 2019 OR nearly 350 families that had invested their hard- earned money to buy dream houses on the picturesque Kochi waterfront in Kerala, it was the equivalent of the proverbial bolt from the blue. On May 8, the Supreme Court ordered the demoli- tion of five apartment complexes for violation of the Coastal Regulation Zone (CRZ) norms. A bench of Justices Arun Mishra and Navin Sinha ordered that five complex- es—Holy Faith Apartments, Kayaloram Apartments, Holiday Heritage, Alfa Ventures, and Jain Heritage—be razed. It ruled that the state, devastated by the August 2018 floods, cannot withstand another deluge on account of illegal constructions. Whenever the demolitions take place—the apex court has given a mon- th’s time for the buildings to be razed— the flat owners will have to cope with the fact that there will be no compensa- tion. Mostly people from the upper mid- dle class, they are now pointing fingers at the builders for cheating them. The hapless buyers say that the builders con- nived with government agencies and other concerned officials to facilitate illegal constructions in violation of CRZ norms, “We are simply shocked. We had no idea these were illegal. The village and municipal offices, the elec- tricity board, fire service, all gave us permits and we had no reason to believe these were illegal,” said Major Ravi, noted filmmaker and a flat owner. The apex court’s decision came on a Special Leave Petition filed by the Kerala State Coastal Zone Management Authority (KSCZ- MA). But, on behalf of the builders, Paul Raj Joseph of Alpha Ventures said that they would soon move a review petition before the Court. It was in 2010 that the builders were issued showcause notices after an audit revealed irregularities in land use. But they got a breather when the Kerala High Court stayed the notice. In due course, the constructions were completed and flat owners moved into their dream homes. According to KSCZMA, the five apartment complexes are located in an area notified under the non-negotiable CRZ -III regulations. Situated along the scenic Vembanad Lake, linked to the Arabian Sea, the area is coveted by builders as water-front apartments here are in high demand. The building boom has not only destroyed the vulnerable eco-systems but also invited natural calamities like the 2018 floods from which the state is yet to return to normalcy. A recent survey along a five-kilome- tre stretch in Maradu Municipality, in which these apartments are located, revealed that there are over 67 encroachments but authorities have been mere bystanders. It thus became easy for builders to bend the CRZ norms. Even getting caught was not much of a problem as the building, at the most, entailed an “unauthorised” tag that brought with it a fine. In this light, the Supreme Court order to demolish the apartments is expected to act as a Demolition Day Morethan350familiesmaybewithoutaroofovertheirheads astheapexcourthasorderedthedemolitionoffiveapartment complexesbuiltinKeralabyignoringenvironmentalconcerns By NV Ravindranathan Nair in Thiruvananthapuram PAYING THE PRICE Alfa Ventures, one of the apartment complexes slated for demolition F
  21. 21. | INDIA LEGAL | May 27, 2019 23 deterrent to the plague of illegal encro- achment across the state. The genesis of the controversy lay in a permit that the Maradu Municipality issued in August 2006 to builders to construct commercial multi-storied buildings in the area. But KSCZMA wanted the state government to direct the Municipality to revoke all permits. As the Municipality issued showcause notices to the builders, one of them challenged it in the Kerala High Court. A single bench quashed the notices, say- ing that the state government had no powers to issue directions to local bod- ies. Later, a division bench of the High Court also upheld the decision. KSCZMA then moved the apex court against the High Court order. On Nov- ember 27, 2018, the apex court ordered that an expert committee be appointed to probe whether the area where the apartments were constructed fell within CRZ-II or CRZ-III zone. As per CRZ rules, no construction is permitted with- in 200 metres from the coastal line. The committee said that as the apartments were located within the pro- hibited area, the construction was ille- gal. It added that the permission given to builders by the local body did not have the go-ahead from KSCZMA, the competent authority. Taking note of the report, the Sup- reme Court directed the authorities to raze the buildings within a month and submit a compliance report. The two- judge bench agreed with the KSCZMA stand that the constructions on river beds and coastal zones were “an invita- tion for natural disasters as seen in Uttarakhand and Tamil Nadu, and vio- lations could not be condoned in view of natural calamities happening in differ- ent parts of the country”. T he Court order came as a boost to environment groups in the state who organised a two-day rally across the coastal belt of Kerala—from Kochi to Thiruvananthapuram. “The SC verdict to pull down the five structures will be a blessing for environment pro- tection. If we don’t comply with the ver- dict, violators will become bolder. Such a scenario will serve to bring more dis- asters,” said noted environmentalist CR Neelakandan. He added that green groups would move the apex court if the state government did not comply with the order. Noted architect and head of the department of architecture, College of Engineering Trivandrum, Professor Manoj Kini said it was high time Kerala returned to environment-friendly constructions. It is apparent that the state is yet to learn lessons from the devastating floods of last year—a man-made disaster as several low-lying areas which had water-holding capacity in the event of floods had been filled for real estate pur- poses, thus causing waterlogging. “Constructions as part of the real estate boom in the environmentally fragile areas have been posing a serious envi- ronmental issue in the state,” he said. Responding to India Legal’s query about builders getting permits for the construction even when the land was in the CRZ-III category, National Vice- President, CREDAI, and a local builder Raghuchandran Nair said that the Local Self Government Department and Coastal Zone Management Authority, the two different arms of the govern- ment, were at loggerheads and challeng- ing each other’s stand. “It is absurd. It is the responsibility of the government to sort this issue out between the depart- ments. After collecting all the taxes and documentation charges, the government cannot wash its hands of the matter and choose to be a mute witness,” he said. He added that the government needed to step in to save the situation or pay compensation to allottees and bear all the expenses for the demolition. Accor- ding to him, the allottees are the owners of the property and they can once again construct a house with more FAR on the same land as the area now falls in the CRZ-II category. He said the govern- ment should apprise the apex court about these facts when the review peti- tion is filed. Will the apex court listen? CALL FOR DISASTER (Left) The illegal construction boom in Kerala led to the August 2018 floods; Raghuchandran Nair, National VP, CREDAI Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com UNI
  22. 22. Legal Eye/ Justice Kurian Joseph on the NJAC 24 May 27, 2019 have expressed the view several times in the media that Indian citizens will never know the real reasons why judicial collegiums ele- vate certain constitutionally quali- fied citizens (or transfer certain Justices from one High Court to anoth- er) nor why the Executive appoints (and transfers) Justices. In either method, the play of residual discretion cannot be avoided. In reality, some sort of consti- tutional diarchy prevails, contrary to the propaganda that the views of the judicial collegium always prevail over the Executive. Arbitrariness in judicial appoint- ments should be progressively reduced and informed public debates provide the best searchlight for finding procedural means ahead, provided we realise that eradication of discretion is an impossi- ble dream. However, a singular question is: should Justices in their superannuat- ed public performances directly or indi- rectly express an altogether different opinion from the considered view they expressed in their judicial decisions? The fact that they have in the past and in the present done so does not foreclose the issue of whether they ought to do so. Nor does it provide the normative wherewithal for regarding their out-of-office remarks as pertinent, but this has also occurred. Both Justices Yeshwant Chandra- chud and PN Bhagwati reiterated their apologies to the nation for the habeas corpus denial during the internal Emergency in l975, but what is unusual is the fact that the Supreme Court as a whole decided to overrule this decision in the recent case recognising right to privacy. Justice Dhananjay Chandra- chud (for himself and writing for Chief Justice JS Khehar and Justices RK Agrawal and S Abdul Nazeer) held that “the judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence”. And Justice Sanjay Kishan Kaul termed it as “an aberration in the constitutional jurisprudence of our country”, adding that the majority opinion should be “buried ten fathom deep, with no chance of resurrection”. A certain poignancy and eloquence pre- vails in applauding the moral courage of dissent by Justice HR Khanna during the Emergency. But what can be done when a Justice Disturbing Portents? ItisimportantthatJusticesdonotresilefromtheirowndecisionsontheBenchandthat theyobservethecanonsofconstitutionalrectitudepromotinginstitutionalintegrity By Prof Upendra Baxi I CONTROVERSIAL VIEW Former SC judge Justice Kurian Joseph (blue suit) with FM Arun Jaitley at a book launch ceremony where he spoke about the NJAC twitter.com/cambridgeindia
  23. 23. | INDIA LEGAL | May 27, 2019 25 after retirement expresses a disagree- ment with his own ruling? Most recent- ly, Justice Kurian Joseph (who I hold in high esteem) precisely, and ironically, did this in the presence of Union Fin- ance Minister Arun Jaitley at the launch of a book “Independence and Accoun- tability of the Indian Higher Judiciary”, written by Arghya Sengupta, director, Vidhi Centre for Legal Policy. He said he “was beginning to regret” his view on the National Judicial Appointments Commission (NJAC). The learned Justice was a part of the Constitution Bench that in October 2015 held unconstitutional and invalid both the constitutional amendment and the NJAC Bill by a 4:1 majority. He had then explicitly stated: “Direct participa- tion of the Executive or other non-judi- cial elements would ultimately lead to structured bargaining in appointments, if not, anything worse. Any attempt by diluting the basic structure to create a committed judiciary, however remote be the possibility, is to be nipped in the bud.” Quoting US Supreme Court Chief Justice John Roberts that the court has “no power to gerrymander the Consti- tution”, he said neither has the Indian Parliament any power to do so. “The Constitution 99th amendment impairs the structural distribution of powers, and hence, it is impermissible.” That was said on October 16, 2015, but now (upon retirement on November 28, 2018) he finds many a fault with the collegium system, as adversely affecting the independence of the judiciary in the matter of “seniority” and also by way of “delay”, it makes the “other way” more attractive. What made Justice Kurian Joseph hold an opposite view in the space of three years? O bviously, no system of appoint- ment of Justices would ever be perfect, but does that justify violation of judicial review and inde- pendence, the doctrine of basic struc- ture and essential features which he himself so powerfully evoked on Oct- ober 16, 2015? As late as February 6, 2013 (in an interview with Bar & Bench) Justice JS Verma bemoaned the fact that when the Executive was predominant, extraordi- nary judges “like Justices GP Singh, Chittatosh Mookerjee, PD Desai, MM Ismail, and Alladi Kuppu Swami were not brought to the Supreme Court. What was needed was that both the Judiciary and the Executive should have acted honestly and not arbitrarily”. Referring to his Second Judges case decision, Justice Verma said: “My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required.” But in agreeing with Justice Madan Lokur’s “analysis and statement of law, in the matter of discussion and summa- rization of the principles on reconsider- ation of judgments”, Justice Kurian Joseph added: “I would like to add one more, as the tenth [consideration]. Once this Court has addressed an issue on a substantial question of law as to the structure of the Constitution and has laid down the law, a request for re- visit shall not be welcomed unless it is HISTORIC JUDGMENT The NJAC was declared unconstitutional by a five-judge SC bench of (L-R) Justices (retd) JS Khehar, J Chelameswar, MB Lokur and AK Goel together with Justice Joseph; Justice Chelameswar gave the dissenting opinion Atarecentbooklaunchceremony, JusticeKurianJoseph saidthathe“was beginningtoregret”hisviewonthe NationalJudicialAppointments Commission(NJAC). Photos: JS Studio
  24. 24. Legal Eye/ Justice Kurian Joseph on the NJAC 26 May 27, 2019 shown that the structural interpretation is palpably erroneous.” How does any superannuated piece of wisdom enhance the process of struc- tured bargaining? What happens now to this solid “structural interpretation”? And does it now complicate the recep- tion of the nine points enunciated by Justice Lokur? In fact, he wrote: “The executive continues to have a vital role to play and in some cases, the final say in the appointment of a judge—the mis- understanding of the judgment is due to the completely and regrettably defeatist attitude of the Union of India and the States or their view that in the matter of appointment of Judges, it is their way or the highway.” He went on to say: “The Constitution of India is a sacred document and not a Rubik’s cube that can be manipulated and maneuvered by the political executive...to suit its imme- diate needs.” R Venakatsen of the Frontline, wad- ing through these interpretations, gave a further twist to this debate by asking in Law and Other Things: “Do the judg- ments in the Judges cases, decided by a larger bench, give scope for reforming the collegium by a smaller bench of five judges?” This valid question requires hot pur- suit, but I am more concerned with the issue of whether a judge ought to exp- ress his views contrary to those he had expressed in a binding judgment? It may be argued that Justice Kurian Jos- eph always remained uneasy about the primacy of the collegiums. He said in the judgment (although not directly agreeing with the salient criticism of the judicial collegium system articulated by Justice Jasti Chelameswar) that the question whether the “institutional trusteeship has kept up the expectations of the framers of the Constitution” war- rants “deep introspection”. But that unease then did not result in validating the NJAC. J ustices upon retirement, of course, possess a right to freedom of speech and expression; indeed, this basic right is not even suspended during the tenure of judgeship, a constitutional office. But it is reasonably restricted in terms of the judicial oath under the Third Schedule. The oath no longer applies on superannuation, but do the obligations of constitutional morality cease for that reason? Is it justified to resile from one’s own decision on the Bench or to leave the labours of making sense of a post superannuation with- drawal of a constitutional reiteration, eminently well-argued and well-consid- ered? Superannuated Justices, more than political actors, ought to observe the canons of constitutional rectitude and promote institutional integrity. While the impact of the observations of a retired justice is for a later bench or court to decide, available evidence shows that extra curial utterances have the effect of: (1) weakening the authority of the institution as a whole; (2) weak- ening or diluting the level of support or endorsement by concurrence (even a concurring separate opinion) of an in- cumbent Justice by any adverse inter- locution on superannuation; (3) weak- ening of the original discourse by differ- ent constructions placed upon the views of superannuated Justices. In the event, one would seriously urge, particularly the Supreme Court, to enact a rule against allowing any cita- tion or mention of any comment on judgments made by a retired Justice, as retroactive dissent is not permitted by the Constitution. Ideally, no retired Justice should include in the guarantee of freedom of speech and expression the right to retroactively express an opinion different than that embodied in her or his concurrence or dissent. If thought necessary, the judicial oath in the Third Schedule should be so amended. It is constitutionally sensible to speak about a judicial duty, subsisting even on retirement, requiring abstinence from expressing doubts about one’s own opinions and decisions which are based on the fullest possible hearing of all sides. The golden rule of constitutional decision-making is to leave the path of law strictly uncluttered for judicial successors. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Theapexcourtmustconsiderenactinga ruleagainstallowinganycitationormen- tionofanycommentonjudgmentsmade byaretiredJustice,asretroactivedis- sentisnotpermittedbytheConstitution.
  25. 25. | INDIA LEGAL | May 27, 2019 27 Courts/ Assistant Ambulance Officers HE Delhi government has informed the Delhi High Court that the recently launched First Responder Vehicles (FRVs) under the Centralised Accident and Trauma Ser- vices (CATS) was only a pilot project and had sufficient number of Assistant Ambulance Officers (AAO) to provide basic first-aid and stabilise the patient until an ambulance arrives. It said these FRVs would not transport any patient. A bench of Chief Justice Rajendra Menon and Justice AJ Bhambhani was hearing a plea which challenged the scheme of FRVs. These motorcycle- ambulances were launched in February this year. The petition said that it had been launched without due diligence and with the help of untrained man- power. It had further claimed that 70 percent of the AAOs are more than 50 years of age. The plea was filed through advocate Kamlesh Kumar and quoted an RTI reply that reportedly said that the AAOs, who would be riding the bikes, had no requisite qualification to be paramedics. However, the Delhi government informed the Court that these AAOs were highly experienced drivers with more than 20 years of experience. It said the task of the AAO was to stabilise the patient/accident victim with basic first-aid techniques. This includes bleed- ing control, immobilisation, cardiopul- monary resuscitation, air-way manage- ment, oxygen therapy, etc, until the arrival of a four-wheeler ambulance. The Delhi government further clai- med that the present plea was filed for the personal interest of a person as a copy of the cabinet note, file notings and letters of CATS along with the petition was only given to Dharmendra Trivedi, president of CATS Officers Welfare Association under the RTI Act. It said that as per a 2015 report, 51.85 percent of slums have no moto- rable approach roads and 48.15 percent of slums have only pucca/kutcha moto- rable approach roads. These kind of nar- row lanes are not suitable for four- wheeler ambulances. Further, in a study it was found that the average response time of CATS ambulances was more than 30 minutes. So in order to provide basic first-aid in medical emergencies, CATS initiated the FRV pilot project in East Delhi (the most densely populat- ed area with a population density of more than 27,000 persons per sq km), and based on the outcome of the said project, further course of action will be initiated. The Delhi government said AAOs were not paramedics and their designa- tion was “Assistant Ambulance Officer” because at any given point, they are not required to administer any injection, etc. They have to carry medical equip- ment and medical consumables required for providing necessary first-aid. The total weight of these items is approxi- mately 10 kg. The petition also said the decision to appoint AAOs as drivers is being questioned by its own employees on the grounds that the government had not recruited special cadre to man the scheme. Under the Scanner ApetitionhasbeenfiledintheDelhiHighCourtonFirstResponder Vehicleswhichprovidefirst-aiduntilanambulancearrives By Kunal Rao Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com T REACHING OUT The Delhi government told Chief Justice Rajendra Menon (above, left) and Justice AJ Bhambhani that the bike ambulance services (left) are critical in medical emergencies Twitter
  26. 26. 28 May 27, 2019 Column/ Assistant Ambulance Officers Dr KK Aggarwal SCHEME started by the Delhi government in Feb- ruary seems to have run into trouble and has reached the Delhi High Court. A PIL has said that Assistant Ambulance Officers (AAOs) who are assigned the job of driving two-wheeler First Responder Vehicles should also be trained paramedics. However, the Delhi government has said that they will not transport patients and will only give basic medical assistance until an ambu- lance arrives. AAOs have been trained in basic life- support techniques, have commercial driving licences and a work experience of more than 20 years. However, in this scheme, there is not much efficacy due to the limited knowledge and training of AAOs. They are not even authorised (or qualified) to administer an injection. To understand their job, we need to first understand the laws. The govern- ment has powers to allow healthcare workers to give treatment under Clause 23 of Schedule K of the Drugs and Cos- metics Act. As per the Clause, drugs supplied by certain categories of work- ers are exempted from the provisions of Chapter IV of the Act and the Rules which require them to be covered by a sale licence, provided the drugs are sup- plied under the Health or Family Wel- fare Programme of the central or state government. The workers are: Multipurpose workers attached to pri- mary health centres/sub-centres. Community health volunteers under the Rural Health Scheme. Nurses, auxiliary nurses, midwives and lady health visitors attached to urban family welfare centres/primary health centres/sub-centres. Anganwadi workers. Similarly, malaria workers are given anti-malaria drugs and do malaria test- ing, ASHA workers are allowed to give Gentamicin injections to newborns and methergine for postpartum haemor- rhage, a leading cause of maternal mor- tality, before the patient is transferred to a hospital. There is also a provision in the Medi- cal Council of India ethics rules where a technician can be trained by a doctor. It does not talk about institutional train- ing. It says: “A registered medical practi- tioner shall not issue certificates of effi- ciency in modern medicine to an unqua- lified or non-medical person.” This does not restrict the proper training and ins- truction of bona fide students, mid- wives, dispensers, surgical attendants, skilled mechanical and technical assis- tants and therapy assistants under the personal supervision of physicians. Similarly, in cases of a cardiac arrest, even bystanders are allowed to provide cardiopulmonary resuscitation (CPR). There are three phases of cardiac resus- citation lasting a total of 10 minutes. No doctor can reach in 10 minutes in an emergency and that is why a first responder is important. The first phase of resuscitation is the electrical phase, lasting four to five min- utes after sudden cardiac arrest (SCA). Immediate direct current cardioversion is needed to convert an abnormal heart rhythm to a normal heart rhythm. Per- forming chest compressions while the defibrillator is readied also improves survival. Then, there is the hemodynam- ic phase or circulatory phase which is from four to 10 minutes after SCA. Chest compressions should be started immediately and continued until just before defibrillation is performed. Then there is the metabolic phase defined as greater than 10 minutes of pulseless- ness. This is primarily based upon post- resuscitative measures. In these phases, the administration of CPR by a lay per- son is an important factor in determin- ing patient outcome if the cardiac arrest takes place outside a hospital. Survival Save a Life First ThedebateoverAAOsisneedless,asinanymedicalemergency, whatisvitalistosavethelifeofthepatient,evenbyabystander A EMERGENCY PROCEDURE Doctors supervising cardiopulmonary resuscitation training in New Delhi UNI
  27. 27. after cardiac arrest is greater among those who have bystander CPR as com- pared to those who initially receive delayed CPR from a trained technician. In addition to improved survival, early restoration in circulation is also seen. T here is also the golden hour in medical practice when immediate care is required. Delay in treat- ment even by a few minutes can take away a life. In emergency medicine, the golden hour refers to the first hour fol- lowing a traumatic injury during which time there is the greatest likelihood that prompt medical treatment will pre- vent death. If bleeding can be stopped and a per- son infused with enough fluids within the first hour, most trauma deaths can be avoided. There is also the platinum 10 minutes which refers to the first 10 minutes after trauma when first-aid can be started. The importance of time in medicine can be gauged from the following: Door to ECG Time: This is an impor- tant terminology in the treatment of heart attack. One should get an ECG within 10 minutes of chest pain. A pro- longed door-to-ECG time is associated with an increased risk in a heart attack. Door-to-doctor time in paralysis: In an emergency department, the time from the arrival of the patient to initial physician evaluation should be less than 10 minutes in strokes, otherwise the mortality will be high. Door to antibiotic time in community acquired pneumonia is the time to start antibiotics. Guidelines suggest that all patients hospitalised with community acquired pneumonia should receive antibiotics within four hours of admis- sion in a hospital. Door to antibiotic time in meningitis of more than six hours is linked to high mortality. Door to needle time in an acute heart attack is the time before which a clot- dissolving drug should be given. Door to balloon time is less than 90 minutes for angioplasty and stenting in acute heart attack. Even the Indian Penal Code (Section 92) recognises the importance of an act done in good faith with consent. It says: “Nothing is an offence by reason of any harm which it may cause to a person for whose benefit it is done in good faith, even without that person’s consent, if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent, and has no guardian or other person in lawful charge of him from whom it is possible to obtain con- sent in time for the thing to be done with benefit.” In that sense, motorcycle first responders are important. They are not doctors and will give life-saving inter- vention only when required. Under Section 88, the same Act is not an offence if done with consent. Calling an ambulance is an implied consent. In this whole issue, there is the question of paramedics. Are there enough paramedic courses, colleges and councils? From the Red Cross, one can do a short course on first-aid and qualify to be a paramedic. But is that enough? The answer lies in training and not the degree as far as first-aid is con- cerned. It is important to manage the golden hour and hand over the patient to qualified doctors with the arrival of a proper ambulance. Time is of essence in medical care and if basic first-aid is being given, why quibble about whether the person has a paramedical degree or not? —The writer is President, Heart Care Foundation of India, and President- elect, Confederation of Medical Associations of Asia and Oceania Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com QUICK RELIEF (Left) If the need arises, ASHA workers can give injections to newborns; an accident victim being rushed to a trauma centre. Most trauma deaths can be avoided if treatment starts quickly healthasha.maharashtra.gov.in/ | INDIA LEGAL | May 27, 2019 29 UNI
  28. 28. Courts/ Failed School Students 30 May 27, 2019 T is a problem that affects thou- sands of students and keeps repeat- ing itself every year. And, as in the past, government schools have turned a blind eye to the plight of the students this time too. Nearly 48,930 students of government schools in Delhi have failed this year in CBSE Class X exams. Though all such students have the legal right to readmission in Class X in the same school under Delhi School Education Act, 1973, government schools are more often than not likely to refuse to take them back. Last week, the Delhi High Court issued notice to the Delhi government following a petition highlighting the denial of admission to students in gov- ernment schools in Delhi. A civil miscellaneous application was filed in the High Court before a bench comprising Chief Justice Rajendra Menon and Justice Anup J Bhambhani last week. It pertained to several circu- lars of the government of Delhi which sought to restrict students from contin- uing with their formal education by cit- ing, among other things, fixing of an upper-age limit and requirement of resi- dence proof. The applicant mentioned that 48,930 students had failed this year’s CBSE Class X exams and provided a list of 264 students who have been denied admission in government schools on the grounds of having failed and sought that admission be granted to them even though they had failed twice in the same grade. The applicant pointed to various cir- culars of the Delhi government wherein the students were restricted from participating in the formal education system of the school or denied admis- sion. The responsibility of ensuring education to every child is that of the government, he said, while pointing to a circular dated 27.08.2018, according to which students who have failed twice in a particular grade from Class IX to XII would be counselled and asked to take the patrachar vidyalaya or the open schooling system. The counsel reminded the court that the denial of admission to these stu- dents after failing in a grade is not just an irresponsible act of the government but is in violation of Articles 14 and 21 of the Constitution. The original petition was filed by Ashok Agarwal, an advocate at Delhi HC who is also a social activist. Agarwal has been espousing the cause of right to education, besides other rights, in the HC through PILs. He quoted Section 138 of Delhi Sch- ool Education Rules, 1973, in the HC that states: “Admission of failed students is not to be refused. A student who fails at any public examination shall not, on that account, be refused readmission in the school or class by the school from which he had appeared at such exami- nation.” He quoted Supreme Court judgments that said that everyone has the right to access higher education in order to reach a higher pedestal in social and economic life and any such restric- tion violates the fundamental rights of a citizen. Agarwal also referred to the Delhi government circular of 19.09.2016 wherein the age-limit was notified by the government for each grade. The counsel reminded the court that among the many reasons that led parents to choose government schools was migration and the exorbitant cost of education in private schools. DelhiHCservesnoticetotheAAPgovernmentoncirculars aimedatdenyingreadmissiontostudentswhofailedexams By India Legal Bureau Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com I Acivilmiscellaneousapplicationwas filedintheHighCourtbeforeabench comprisingChief JusticeRajendraMenonandJustice AnupJBhambhanilastweek. twitter.com School’s Out Forever
  29. 29. | INDIA LEGAL | May 27, 2019 31 Media Watch Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com D espite the so-called sweetheart deal on Rafale, Anil Ambani seems to be hedging his bets as far as his so-called political godfa- ther is concerned. He had recently bought over the Delhi-based Indo- Asian News Service (IANS), forcing a lot of independent journalists to quit and bringing in his own favourites. However, here’s the twist. Defying the Election Commission’s model code of conduct, IANS ran an exit poll last week which, surprisingly, gave the BJP-led NDA a mere 234 seats while predicting that the Congress-led United Progressive Alliance (UPA) would get 169 while “others” would win 140. The others include 48 seats to the Samajwadi Party-Bahujan Samaj Party-Rashtriya Lok Dal combine of Uttar Pradesh and 31 seats to the Trinamool Congress. The exit poll was uploaded on the Twitter handle of IANS on May 13. It took the small-time agency two days to delete the tweet, after receiving a noti- ce from the EC. Surprisingly, the two other media outlets which also pub- lished exit polls in violation of the code of conduct included the leading pink paper, The Economic Times. The Times Group may also be hedging its bets— its TV news channel, Times Now, is embarrassingly pro-Modi. Writing on the Wall O ne more name has been added to the list of journalists the BJP loves to hate—Aatish Taseer. The provocation is his cover story for Time magazine on Narendra Modi headlined “India’s Divider in Chief”. Taseer is an internationally known writer with a number of critically acclaimed books to his name but he does have a peculiar problem—his mother is Indian, columnist Tavleen Singh, who is an avowed Modi fan, while his father, Salman Taseer, who never acknowl- edged Aatish’s existence, was a Pakistani politician and businessman assassinated by his bodyguard in 2011. The BJP trolls were quick to jump on the story, labelling Taseer a Pakistani and then claiming he had worked for the Congress party. Taseer is a British citizen and has been strictly impartial when it comes to his articles for foreign publications on India and Pakistan. In fact, in a statement after the Time cover story came out, he said that Modi was the best thing that hap- pened to Pakistan, referring to the revival of the two-nation theory. BJP hackers ignored Tavleen’s hosannas to Modi, and instead manip- ulated her son’s Wikipedia page. It was edited on May 10, the day after Time was published, when the phrase about Taseer being “the PR manger for the Congress” was added to the “Career” section of the page. Wikipedia allows those who use its service regularly to make changes and edit existing materi- al. Wikipedia has now declared Taseer’s page as “Protected” which means no changes can be made. T he Arnab Goswami-led Republic TV is now gearing for its next big jump—making its global presence felt. The channel has been already launched in New Zealand and plans are afoot to launch it in South Africa later this year. For the global expansion, which also includes entering the OTT space, Republic is setting up a team that is looking exclusively at expansion plans outside India. The next target, after South Africa, will be the UK fol- lowed by the US. It’s a route many of the big Indian TV news channels have taken, including NDTV and ZEE, and with Goswami’s USP being a rabid defender of Modi, if the results on May 23 do not go the BJP way, his global ambitions could face some prob- lems. Going Global Perils of the Press I t is well known that the Total Readership (TR) of newspapers is higher than their Average Issue Readership (AIR). While publishing cir- culation figures in their ads, newspapers insist on using TR instead of AIR even though advertisers pick publications based on AIR and not TR. In the 2019 readership survey, which all newspapers have been tom-tomming, they basically mention TR. In IRS 2019, for some papers, the TR is as high as four times their AIR. For The Times of India, their AIR is a little over 56 lakh, while the TR is 1.52 crore! The Hindu has an AIR of a little more than 16 lakh, while its TR is 62 lakh. The problem is that you can fool the public but advertisers have their own access to TR and AIR figures. The Numbers Game
  30. 30. Spotlight/ Legal Leadership Conclave 32 May 27, 2019 ONCLAVES and seminars are nothing new in India. But a legal one, that too on a subject as niche as the Insolvency and Bankruptcy Code (IBC), is an altogether new idea. But then, India Legal as the only politico-legal magazine in India and ENC as a media group, have always endeavoured and succeeded to a great extent, to create awareness about vari- IBCDecodedThefirst-of-its-kindlegalconclave,heldrecentlyinMumbai,deliberatedonissuesaffectingthe InsolvencyandBankruptcyCodeandbroughtthebestoflegalmindstogether By India Legal Bureau C MEMORABLE OCCASION Justice NV Ramana of the Supreme Court lighting the ceremonial lamp at the Legal Leadership Conclave. Also seen are Chief Justice of the Bombay High Court Pradeep Nandrajog (extreme right); former Supreme Court judge Justice BN Srikrishna (first from left); Editor-in-chief, APN, Rajshri Rai (second from left); Editor-in-Chief, India Legal, Inderjit Badhwar (second from right); and former law secretary PK Malhotra (third from right) It is against this backdrop that the first-of-its-kind Legal Leadership Con- clave becomes important. Held at The St. Regis Mumbai on April 27, it bro- ught the best of legal minds together to deliberate on issues affecting IBC. Such was the response that the Astor Ball- room of the hotel—where the event was held—was chock-a-block with lawyers, technocrats, industry experts, builders, law students and others who were either Photos: Anil Shakya ous legal issues that not only affect the common man but the country at large. IBC is an ambitious piece of econom- ic reform in India and provides for a ti- me-bound insolvency resolution process. The law, enacted in 2016, has been adopted by both creditors and debtors. From real estate developers to financial institutions to home buyers, IBC con- cerns everyone, thus impacting the Indian economy and citizen welfare.
  31. 31. | INDIA LEGAL | May 27, 2019, 33 sharing their views with the audience. A majority of SCBA executive committee members were also present at the event. They included Vikrant Yadav, secretary, SCBA; Vikas Bansal, treasurer, SCBA, and Bhim Singh and Jana Kalyan Das, both senior exec- utive members. The Conclave was partnered by India Legal Research Foundation (ILRF), a non-profit organisation committed to bringing justice to those who deserve it but cannot afford it, APN and Nepal 1 and presented by ENC. The Conclave started with the light- ing of the lamp by Justice NV Ramana of the Supreme Court. Others at the cer- emony were Justice BN Srikrishna, for- mer judge of the Supreme Court; Justice Pradeep Nandrajog, chief justice of the Bombay High Court; Rajshri Rai, edi- tor-in-chief APN and ENC affected by IBC or wanted to educate themselves about this unique law. The Conclave had two technical ses- sions dealing with subjects, such as “Opportunities and challenges for IBC” and “Impact of IBC on business estab- lishments and the real estate sector”. Both the sessions saw judges from the High Courts, senior advocates and members of the National Company Law Tribunals and corporate professionals MAKING A POINT Justice BN Srikrishna pointed out that IBC has improved India’s ranking in the ease of doing business UNSTINTED SUPPORT PK Malhotra said that IBC is a commendable initiative and gets reported in the press almost every day AUGUST GATHERING Members from NCLT and SCBA with Justice Ramana (ninth from right, back row), Justice Pradeep Nandrajog (eighth from right, back row), Justice BR Gavai, Bombay HC (sixth from right, back row), and Justice BN Srikrishna (eighth from left, back row)