Judgment Day 70 years after the Ayodhya case was filed in the courts, a final judgment by the Supreme Court will be eagerly awaited. However, there is little doubt that the issue, whichever way the Court rules, will create a political and communal flashpoint which could take the country down a dangerous road

1. NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
October28, 2019
JudgmentDay70yearsaftertheAyodhyacasewasfiledinthecourts,afinaljudgmentbytheSupreme
Courtwillbeeagerlyawaited.However,thereislittledoubtthattheissue,whichever
waytheCourtrules,willcreateapoliticalandcommunalflashpointwhichcouldtake
thecountrydownadangerousroad
Subodh Gupta: Disruptive
power of social media
Jammu & Kashmir:
Administrative turmoil

4. OURTS in India have inevitably become
the arena to resolve issues concerning
emergencies. Considering that our
Constitution provides certain powers to
the executive during the time of an
Emergency, the courts have the mandate to inter-
vene in cases where the rule of law has been dis-
banded by the executive.
An Emergency generally represents the epito-
me of the tussle between order, repression and
liberty. We should note that while an Emergency
is sometimes inevitable, it needs to be dealt with
in a manner wherein normalcy can be attained as
soon as possible. The present Emergency
imposed upon Jammu & Kashmir following the
abrogation of Article 370 which gave the state its
special status, is a classic example wherein public
order needs to be balanced with liberties
enshrined under the Constitution. Courts, being
the guardian of civil liberties, must function to
protect the same from egregious violations and
overt unlawful action of the authorities.
The task cut out for the Kashmir bench head-
ed by Justice NV Ramana is therefore clear and
constitutionally determined. It is well known that
during an Emergency, there is a minority control
of information with a select few. Especially at the
beginning of an Emergency, there is a large possi-
bility of imposing a blanket restriction which
may be considered necessary to maintain appro-
J&K—THE APEX
COURT ASKS: WHY?
Inderjit Badhwar
C
Letter from the Editor
4 October 28, 2019
Justice Ramana (HJNVR):
Reprimanded and enquired as to why no
counter has been filed in some of the
petitions, even after repeated orders/
opportunities.
Solicitor General Tushar Mehta (SG):
Before we begin today’s hearing, I am
ready with the fresh affidavits which list
down the latest/ subsequent develop-
ment which has taken place this week
and after filing of the previous counter.
Give me an hour and I can file the count-
er/reply immediately.
Sr Counsel Vrinda Grover (VG) &
Santosh Hegde: My Lords, the gravity of
the matter is such that immediate action
is required from the government. Liberty
of the people is at stake here. It is shock-
ing that the government has not even fur-
nished the orders pursuant to which the
restrictions were imposed.
SG: My Lord, this is a very sensitive mat-
ter. We can’t furnish the orders to anyone
and especially to the petitioners, as it is a
matter of national interest and security.
Justice Gavai: You cannot furnish the
orders to the judges also?
Sr Counsel H Ahmadi (HA): The liberty
of people is at stake. They can’t even
defend themselves. The government has
to furnish the orders.
VG: My Lord, we have made specific
prayers about furnishing of the records.
So many days have passed and multiple
hearings have taken place, still no orders
have come from the government side.
SG: You can’t ask for something which
you haven’t even pleaded for in your writ.
Your prayer doesn’t even mention about
the furnishing of the internet/communica-
tion shutdown orders. Moreover, we are
not going to supply the orders to the
petitioners or any other person, so that
they can go and sit in appeal over those
orders. We don’t want that.
Sr Counsel Dushyant Dave (DD): My
Lord, my petition pertaining to Mr
Ghulam Nabi Azad clearly mentions
about furnishing of the shutdown and
communication blockade orders, in the
prayer clause. You can’t say it is outside
the ambit of the petitions. Further, I object
to the non-furnishing and sitting in
appeal over orders remark/comment
made by the learned SG.
SG: My Lord, we maintain our stand.
Those orders cannot be published in
public. However, we will give it for the
perusal and consideration of My Lords.
HJNVR: Okay. You furnish the order for
our consideration but if you do not want
to make the orders public then you have
to state on the affidavit as to why they
cannot be given to the petitioners. You
must indicate the reasons for claiming
CourtProceedingsinVerbatimon16.10.2019[CourtRoom3]

5. JusticeRamana
reprimandedand
enquiredastowhythe
counter-affidavitswere
notfiledinsome
petitionsdespite
repeatedopportunities.
Severalsenior
advocatesrepresenting
variouspetitioners
submittedthatthe
libertyofthepeoplewas
atstakeanditwas
shockingthatthe
governmenthadnot
evenfurnishedthe
orderspursuantto
whichtherestrictions
wereimposed.
| INDIA LEGAL | October 28, 2019 5
priate levels of public order.
Given the virtual certainty that while under-
taking such a massive exercise, the executive
will be tempted to keep the information flow
restricted, the Supreme Court in its order last
week has affirmed that the first and most essen-
tial step in reviewing an Emergency by judicial
standards and balancing the contrasting inter-
ests of the State and the individual is to seek
information from those holding the informa-
tion. It may be beneficial to record the conver-
sation (paraphrased) which is reported to
have taken place in the Court. (See accompany-
ing box).
Justice Ramana reprimanded and enquired
as to why the counter-affidavits were not filed
in some petitions despite repeated opportuni-
ties. Several senior advocates representing vari-
ous petitioners submitted that the liberty of the
people was at stake and it was shocking that the
government had not even furnished the orders
pursuant to which the restrictions were
imposed. (See accompanying box.)
On the contrary, Solicitor General Tushar
Mehta submitted that this matter was very sen-
sitive and the orders could not be furnished as
such privilege.
VG: My Lord, I would like to intervene
and point out that my writ does have a
prayer about the publication of these
orders.
DD: My Lord, the SG cannot delay the
matter. People are suffering. There is no
connectivity for days.
SG: My Lord, we have already restored
the connectivity.
DD: No connectivity has been restored
as such. Only the post-paid services
have been restored since yesterday, and
that too, SMS services were suspended
last evening itself. Internet is still not
working.
Sr Counsel Abhishek Manu Singhvi
(AMS): My Lord, I would like to point out
a few things. The subscribers providing
the post-paid mobile services are now
charging an additional amount/charge for
restoring the services. Considering the
plight of the people, they can’t avail the
services by paying these additional
charges. Airtel has already waived off the
charges. Other telecom service providers
are yet to do the same and they may be
directed for the same.
SG: Mr Singhvi can speak to me directly
about this. I have no problem.
HJNVR: Mr Mehta, you must consider
waiving off the additional charges.
People may not be in a position to pay
the additional fees/charges.
SG: My Lord, I’ll certainly deal with this.
Mr Singhvi can speak to me personally
outside this court.
HA: It is necessary to furnish the orders.
There is urgency in the matter, and there
has been recurring delay in furnishing the
information.
HJNVR: Mr Ahmadi, before you said it,
we have asked for it. We understand the
urgency. They say that they will furnish
the order. Let us decide then.
DD: My Lord, let no more opportunities
be given to any of the sides. As the gov-
ernment has already taken ample oppor-
tunities to file counter. And, it is the last
opportunity for both the sides.
HJNVR: Mr Dave, the instructions/orders
are equally applicable on both the sides.
Why is there a need to say it specifically?
DD: My Lord, we have complete faith in
your lordships. It is just that it is a human
rights matter and we are fighting with our
hands tied at our back.
SG: My Lord, please have it on the 22nd
October or sometime in the next week.
HJNVR: We have constituted a special
bench on 22nd or 23rd. It might be diffi-
cult to accommodate this matter as the
Election Commission has already pub-
lished the notification.
DD: My Lord, this issue cannot be
ignored as well.
HJNVR: Mr Mehta, you have to file the
affidavit immediately and orders have to
be furnished to us. Let the matter be
heard on 24th /25th October 2019.

6. it was a matter of national interest.
When Justice Ramana and the bench persist-
ed in asking whether the government would also
refuse to furnish the orders to the Supreme
Court, Mehta insisted that the orders could not
be published but could be provided to the Court
for perusal.
At this point, Justice Ramana asked Mehta to
furnish orders for the Court’s consideration. In
the event that the State was unwilling to place
any order on record, an affidavit must be filed
before the Court, stating the reasons why this
information could not be given to the petitioners.
The Court then dictated its order asking the
government to produce its orders under which
cell phone restrictions had been imposed state-
wide, as well as those imposing restrictions under
Section 144, CrPC. When Mehta claimed privi-
lege on this issue, the Court responded that the
government would have to file an affidavit explai-
ning the reasons behind claiming such privilege
for each order that it chose not to disclose.
The extent of information sought by the jus-
tices reflects a much deeper jurisprudential con-
cept, which was the focus of the celebrated Hart-
Fuller debate—regarding whether there was
some inherent (natural) minimal requirement
that every legal system must have. One of these
requirements highlighted by Fuller related to the
recognition that one of the most basic natural
rights relates to informing the parties of the law
and reasons behind the actions undertaken.
O
ur Constitution, unlike the French-style
unilateralism giving immense power to
the president to impose any amount of
restrictions during an Emergency, carves out the
role of the judiciary as an important part of the
checks and balances within the constitutional
scheme, which cannot be abrogated. The Sup-
reme Court’s order, in directing release of infor-
mation, clearly portrays that the Court is cog-
nisant of its important role in ensuring that natu-
ral rights are not trampled unnecessarily.
The role of courts during an Emergency can
also be distinguished into two separate types—
macro-adjudication and micro-adjudication. The
case of Jammu and Kashmir, interestingly, has
both angles within its ambit. One of the ques-
tions before the five-judge bench of the Supreme
Court, which is also presided over by Justice
Ramana, deals with the constitutionality of
Article 370 in addition to the legality of the
imposition of Emergency by the centre in
December 2018.
This can be called “macro-adjudication”. On
the other hand, the cases concerning restrictions
imposed on cellular services and habeas corpus
can be termed “micro-adjudication”. The distinc-
tion, as established by settled jurisprudence, is
that the Supreme Court’s role is more extensive
while adjudicating at the micro level.
There is no doubt that the longer the likely
period of the Emergency, the greater the need for
judicial review. It is now contingent upon the
government to explain its stand and to satisfy the
conscience of the Court as to the legality, necessi-
ty and proportionality of the restrictions imposed
upon the people of Jammu and Kashmir.
It was appropriate that, at the outset, the
Court resolved to seek information concerning
the restrictions imposed by the State before adju-
dicating on other considerations such as provid-
ing appropriate compensation if the actions are
found to be unconstitutional. Three principles
which appear to emanate from the order passed
by the Supreme Court are, first, the recognition
of the fact that the road to recovery starts from
the first day, and with every passing day, the
executive needs to provide reasons for the contin-
uation of such restrictions to maintain public
order; second is that the courts are willing to
interfere and need to interfere at the micro level
involving restrictions on individual liberties;
third, the requirement of freedom of information
so that the public has an awareness of the gov-
ernmental necessity and the reasons behind such
an imposition.
It is now expected that the government, which
has taken steps to restrict the enshrined free-
doms, will have to explain and prove with ade-
quate reasons and supporting evidence why the
measures adopted by it are not excessive or
unconstitutional.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Letter from the Editor
6 October 28, 2019
Itisnowexpectedthatthegovernment,whichhastakenstepstorestrict
theenshrinedfreedoms,willhavetoexplainandprovewithadequate
reasonsandsupportingevidencewhythemeasuresadoptedbyitarenot
excessiveorunconstitutional.

8. LEAD
14Awaiting the Verdict
With the Ayodhya dispute judgement expected around November 17 and the parties involved
hoping that it goes in their favour, there is also a sense of fear that it could create a political and
communal flashpoint
ContentsVOLUME XII ISSUE50
OCTOBER28,2019
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SUPREMECOURT
18Let’s Have Responsive Justice
The Supreme Court has
termed the practice of citing
cases overruled by a larger
bench as “unfortunate”. But it
is the duty of the Bar to assist
the Court and not mislead it,
writes Prof Upendra Baxi

9. Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo Source: KONARK
PUBLISHERS PVT LTD,
| INDIA LEGAL | October 28, 2019 9
In the Army’s assessment, insurgency
could get a new lease of life in the days
ahead in Kashmir, with Pakistan proxies
and ISI’s material support, and things
may get worse before they get better
37
COLUMN
Long Bloody
Haul Ahead
REGULARS
Ringside .........................10
Courts.............................11
Is That Legal...................12
International Briefs..........27
Media Watch ..................33
Satire ..............................50
A Rot Too Deep
A superfast plantation drive by the
previous Shivraj Singh Chouhan
government in Madhya Pradesh has
landed it in a soup with accusations that it
embezzled close to `450 crore
47
Social media platforms have raised concerns over a Delhi High Court
order to take down #MeToo allegations against artist Subodh Gupta
and reveal the identity of the account holder who posted them
22
COURTS
Fighting Slander
The death of a young techie has prompted a vacation bench of the
Madras High Court to recommend a ban on pictures of living
persons on banners and hoardings. But it is easier said than done
24Poster Wars
Though the NGT has asked Punjab, Haryana and UP to be
cautious about farmers putting fields on fire and causing air pollu-
tion, the governments are lackadaisical in dealing with the problem
Harvest of Tears 30
Birth Pangs
With J&K due for bifurcation on
October 31, administrative
changes are taking place
whereby the governor and the
J&K cadre of the IAS cease to
exist and assets are apportioned
40
STATES
A Farcical
Move?
While Kerala has started an
exercise to look into all
buildings which do not
comply with Coastal
Regulation Zone norms,
will it take on powerful
politicians and businessmen
who are the violators?
44
ENVIRONMENT
The RTI Act is dying
a slow death as
public information
officers violate it by
withholding vital
information sought
by the public.
Shouldn’t they be
taken to task?
Brazen Act 34
FOCUS

10. 10 October 28, 2019
Anthony Lawrence
RINGSIDE
Nobel Prize for
Economics
UNITING INDIA
Abhijit Banerjee and wife Esther Duflo
NamoRahul

11. Chief Justice of India (CJI) Ranjan Gogoi
recommended Justice SA Bobde, the
senior-most judge of the Supreme Court, to
succeed him to the highest judicial post in
the country.
Justice Gogoi sent a letter to the Ministry
of Law and Justice on October 17, exactly a
month before he demits office on November
17. In recommending Justice Bobde to suc-
ceed him, Gogoi has merely followed conven-
tion. When he steps down, he would have
held office for 13 months and 15 days while
Justice Bobde, as India’s
47th CJI ,will have a tenure
of about 18 months.
Born in Nagpur, Maha-
rashtra, on April 24, 1955,
Justice Bobde studied in
Nagpur University. Hailing
from a family of lawyers,
he first enrolled as an advo-
cate in 1978 at the Nagpur
bench of the Bombay High
Court. In 2000, he joined the
Bombay High Court as an
additional judge.
Justice Bobde was elevated to the Sup-
reme Court in April 2013 when he was the
chief justice of the Madhya Pradesh High
Court. He has been on several benches that
ruled on significant cases like Aadhaar, right
to life, air pollution that led to the banning of
firecrackers in the National Capital Region and
the Ayodhya matter, which is now awaiting a
final judgement. Justice Bobde also concur-
rently serves as the chancellor of the
Maharashtra Law University, Mumbai, and the
Maharashtra Law University, Nagpur.
Courts
| INDIA LEGAL | October 28, 2019 11
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—Compiled by India Legal Team
Delhi HC issues
notice to centre
on Section 377
The Delhi High Court has
asked the centre to res-
pond to a PIL that Section
377, prohibiting unnatural sex
with man, woman and ani-
mals, should also be applica-
ble to the transgender com-
munity. A two-judge bench of
the Court, comprising Chief
Justice DN Patel and Justice
C Hari Shankar, asked the
centre to file its reply by
January 17, 2020.
The petition, filed by assis-
tant public prosecutor Jam-
shed Ansari, brought to the
notice of the Court that people
who sexually assault trans-
genders escape punishment
as the Section is silent in this
regard. It contended that the
loophole is “discriminatory”
and “offensive to the dignity
and self-worth of the individ-
ual”. The top court has
already ruled that transgen-
ders be considered a third
gender. The petition said that
as a result, they are entitled to
fundamental rights and should
be protected under all laws of
the land.
Activists (from left) Sudha Bharadwaj, Arun
Ferreira and Vernon Gonsalves, arrested
by the Pune police in August 2018, related to
the 2018 Bhima-Koregaon violence case,
were denied bail by the Bombay High Court
recently. The police had taken them into cus-
tody under UAPA and the IPC on the ground
that they had incited the caste-based violence
on January 1, 2018. They have been accused
of being associated with the Communist Party
of India (Maoist), a banned organisation. The
three activists have been in jail for over a year
at the Yerawada Central Prison in Pune.
Justice Sarang Kotwal noted that there
was enough corroborative evidence to prove
they continued to be senior and active mem-
bers of the party and were part of important
decision-making committees. He also said
that the material available proved that Gonsal-
ves, Ferreira and Bharadwaj were also invol-
ved in recruiting cadres and mobilising funds
and concluded that there was ground for a
prima facie case against them under the
UAPA. He had reserved his judgment on bail
petitions after hearing arguments for over
a month.
Meanwhile, the SC extended the interim
protection from arrest period for Gautam Navl-
akha—another accused—by four weeks. But,
it asked him to plead before the concerned
court if he wanted pre-arrest bail.
Bombay High Court denies bail to three activists
CJI Ranjan Gogoi recommends
Justice Bobde as his successor

12. ISTHAT
What is a will? What are the basic points to
keep in mind while making a will?
Section 2(h) of the Indian Succession Act,
1925, defines a will as “the legal declaration
of the intention of a testator with respect to
his property which he desires to be carried
into effect after his death”. A testator is a
person who makes a valid will while he is
alive. Any adult who wants to distribute his
assets can write a will, provided he is of
sound mind.
There is no hard and fast rule that a will
has to be written only on stamp paper and
that it must be registered. A will written on
plain paper is perfectly valid as per the law.
A will can, however, be also framed by a
lawyer, especially in cases where the assets
and ownerships are not that simple. A
lawyer will also ensure that the will is in
sync with the law.
However, in both cases, the testator
must be clearly identified by his signature,
and attestation from at least two reliable
witnesses, the assets must be listed clearly
and there should be no ambiguity as to
how these are to be distributed among
the beneficiaries.
A testator can also withdraw his will or
change it whenever he deems fit and in any
manner whatsoever.
— Compiled by Ishita Purkaystha
Drawing Up Your Will
What are the implications of the Land
Acquisition Act?
Under the Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act,
2013, any person who has been
dispossessed of his land can claim
compensation, rehabilitation and
resettlement under the said provisions
of the Act. In case of land acquired
from farm labourers, one member
of the family is entitled to suitable
employment.
If a parcel of land acquired is un-
utilised for five years, or for the period
specified in the concerned project for
which it was acquired—whichever is
later—it shall be returned to owners
or deposited in the land bank.
In case a court stays a land acqui-
sition order in a pending suit, the
timeframe mentioned above shall not
be applicable.
Acquiring Land
?
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
12 October 28, 2019
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Have the penalties introduced in the Motor
Vehicles (Amendment) Act, 2019, brought
discipline and accountability on Indian
roads? Are there any other benefits?
The heavy and enhanced penalties that make
a gaping hole in the pockets of traffic viola-
tors have been imposed to act as a deter-
rent. The number of fatal accidents and
injuries recorded have been alarming. People
are now careful to ensure that traffic rules
are not violated and thousands of challans
have been issued for various offences.
A Motor Vehicle Accident Fund is likely to be
set up. This can be used for helping accident
victims during emergencies and as compen-
sation. The victim and his family will no
longer have to wait endlessly for insurance
claims in courts. The amount is deductible
from the insurance settlement received.
Change in Road
Behaviour
Is there any legal remedy if my builder has
taken money from me for registration of
my property under RERA but has failed to
do so?
Under the Real Estate (Regulation and Deve-
lopment) Act, 2016 (RERA for short), it is
compulsory for all builders to obtain app-
rovals from government agencies before the
housing project is thrown open to the public.
All relevant information must be made avail-
able on the state RERA authority website.
In this case, or for that matter in any
default case, the buyer can file an online
complaint against the builder/promoter on
the respective state portal of RERA. Details
about the builder/promoter and payment
along with the type of relief sought must
also be mentioned for clarity. A practising
RERA advocate should be consulted to get
the right and effective legal opinion.
When Builders Cheat

14. Lead/ Supreme Court/ Ayodhya Dispute
EARING in the con-
tentious Ayodhya case
ended on October 16
amid high drama. This
included senior advocate
Rajeev Dhawan shred-
ding a map citing the exact location of
Ram’s birthplace, claims of the Sunni
Waqf Board withdrawing from the case
and the Supreme Court-appointed me-
diation panel informing it of reaching a
“ground-breaking settlement”.
At the end of the day, there were
hopes of a settlement in the bitter feud
Withtheverdictexpectedaround
November17andthepartiesinvolved
hopingthatitgoesintheirfavour,thereis
alsoapprehensionthatitcouldcreatea
politicalandcommunalflashpoint
By Atul Chandra
in Lucknow
H
Judgment Day:
Quietly Hopeful
14 October 28, 2019

15. that has gone on for about 70 years. Al-
though it was only after the demolition
of the Babri Masjid in 1992 that the title
suit came to occupy centre-stage, it was
in 1950 that one Gopal Singh Visharad
filed a suit in the Faizabad district court
for rights to worship the idols of Ram
Lalla. The first petition filed by Mahant
Raghubir Das in 1885 was dismissed by
the court.
As the five-judge Constitution bench
of Chief Justice of India (CJI) Ranjan
Gogoi and Justices SA Bobde, DY Chan-
drachud, Ashok Bhushan and S Abdul
Nazeer sit down to write their respective
judgments to decide the title suit in the
Babri Masjid-Ram Janmabhoomi case
after 40 days of a marathon hearing,
both the parties are keeping their fin-
gers crossed. The bench was formed on
January 8 this year.
Hindus and Muslims are quietly ho-
peful of the judgment going in their
favour. Mahant Dinendra of the Nir-
mohi Akhara told India Legal: “Hum
logon ko safalta ki umeed hai (We are
hopeful of success).” Asked if he
expected the verdict to be in favour of
Hindus, Dinendra replied: “Vishwas
banaa lo to safalta apne aap milegi (If
you have belief, then victory will be
automatically yours).”
The Muslim side was cautious in its
response. Convener of the All-India
Muslim Personal Law Board Zafaryab
Jilani told India Legal: “We have the
satisfaction that we were able to put
across our point of view which the other
side could not contradict.” Being a
lawyer, Jilani did not want to speculate
on the possible verdict.
Haji Mehboob, also a party to the
case, is reported to have said that what-
ever the judgment, it will be good if the
chapter is closed in the interest of peace
and harmony.
As a gesture, the Vishwa Hindu
Parishad (VHP) has decided to stall its
planned distribution of tridents to about
10,000 youths before the Supreme
Court judgment. The VHP started the
exercise of distributing them and train-
ing youths in shastra use from Septem-
ber last year. The decision to stall the
distribution was taken as the outfit
did not want to create an atmosphere
of fear.
A
s the verdict is expected around
November 17, the Uttar Pradesh
government has cancelled leave
of police personnel and field officers till
November 30. The likelihood of the
judgment coming before November 17
is high as the CJI is due to retire on
that date.
The present case was filed against
the Allahabad High Court’s judgment in
the title suit ordering a three-way equal
distribution of the 2.77 acres of disput-
ed land between Ram Lalla Virajman
(the presiding deity), the Nirmohi
| INDIA LEGAL | October 28, 2019 15
MARATHON HEARING
The daily arguments on the disputed
Ram Janmabhoomi-Babri Masjid site
case was heard by a five-judge
Constitution bench of (clockwise
from top left) Chief Justice of India
Ranjan Gogoi and Justices SA
Bobde, DY Chandrachud, Ashok
Bhushan and S Abdul Nazeer

16. between the Waqf Board members after
the UP government recommended a
CBI inquiry into alleged illegal land
deals by it.
Equally significant was the Supreme
Court-appointed mediation panel’s
move on the closing day of arguments.
The panel claimed that a settlement had
been reached and a detailed outline of a
“settlement” between some of those who
Akhara and the Sunni Waqf Board. The
High Court gave the chabutara (plat-
form), Sita Rasoi (kitchen) and the
Bhandara to the Nirmohi Akhara, the
land under the domes which were
demolished to the Sunnis, while the
area under the central dome went to
the presiding deity. At present, the dis-
puted Ayodhya land vests with the cen-
tral government which acquired it after
the Acquisition of Certain Area at
Ayodhya Act was passed in April 1993.
During the course of the arguments,
besides faith, the Hindu parties also re-
lied heavily on the findings in Ayodhya
by the Archaeological Survey of India
(ASI) which said that “a massive struc-
ture with features distinctive of a tem-
ple” was unearthed beneath the ground
on which the Babri Masjid stood. Hin-
dus also argued that Ram’s birthplace
was also a juristic person and therefore
had a legal claim to the land. The Alla-
habad High Court also held the view
that the entire disputed site is a deity. In
that case, they argued, the decision to
divide the land between the three par-
ties was “bad in law”.
Muslim parties have argued that the
ASI report can at best be treated as an
opinion and not as evidence; idols were
surreptitiously placed in the Babri
Masjid in 1949 to usurp the land. They
also challenged the Ram Janmabhoomi
Nyas saying it had no locus standi in the
case and it was using Ram Lalla
Virajman as a socio-political vehicle for
its own benefit.
W
hat caused a flutter on the
closing day of the arguments
was news of the Sunni Waqf
Board purportedly withdrawing from
the case. Board chairman Zufar Farooqi
dismissed it as untrue. Jilani, who also
represented the Muslim side, described
it as false and stated that till 4 pm on
October 16, no such submission was
made before the Supreme Court. Asked
where the news emanated from, Jilani
said it must have something to do with
the Waqf Board’s internal matter.
Sources attributed the news to a rift
were party to the case was presented to
the Supreme Court bench.
The Supreme Court had referred the
dispute for mediation for an out-of-co-
urt settlement. A panel headed by for-
mer SC judge FMI Kalifulla was formed
in March 2019. It appeared to have
failed in resolving the vexed issue until
the settlement proposal was placed
before the bench.
Lead/ Supreme Court/ Ayodhya Dispute
16 October 28, 2019
“Humlogonkosafaltakiumeedhai (We
arehopefulofsuccess).”“Vishwasbanaa
lotosafaltaapneaapmilegi (Ifyouhave
belief,victorywillbeyours).”
MahantDinendraoftheNirmohiAkharaon
whethertheSCverdictwillfavourHindus
“Wehavethesatisfactionthatwewere
abletoputacrossourpointofviewwhich
theothersidecouldnotcontradict.”
ZafaryabJilani,conveneroftheAll-India
MuslimPersonalLawBoard,whodidnot
wanttospeculateontheverdict
UNI

17. | INDIA LEGAL | October 28, 2019 17
The settlement plan does not have
the backing of all the parties. The Ram
Janmabhoomi Nyas, the presiding deity
and six Muslim parties do not support
it. Those backing the proposals include
the Sunni Waqf Board, Hindu Maha-
sabha, Akhil Bhartiya Shri Ram Janma-
bhoomi Punaruddhar Samiti and Mah-
ant Rajendra Das of the Nirmohi Ani
Akhara. Ani is the parent body of all
Nirmohi akharas.
The proposal states that the Sunni
Waqf Board would have “no-objection”
if the 2.77-acre Babri Masjid land is
acquired by the central government. In
lieu of giving up the claim, the Waqf
Board wants some select ASI mosques
to be opened for namaz, repair of all
Ayodhya mosques by the centre and per-
mission to construct a mosque at an al-
ternative site in the pilgrim city. Ano-
ther important condition put up by the
Waqf Board was that the Places of
Worship (Special Provision) Act, 1991,
which prohibits conversion of any place
of worship and provides for mainte-
nance of the religious character of any
place of worship as it existed on August
15, 1947, should be implemented in
letter and spirit. This Act is not applica-
ble to the Babri Masjid-Ram Janma-
bhoomi dispute.
B
JP leader Subramanian Swamy
did not lose time in pouring cold
water on this proposal. He was
not ready to give too many concessions
to the Muslims, especially on the repair
of all Ayodhya mosques. Swami tweeted:
“The only concession Virat Hindus can
make for Muslims is permit existing 11
mosques in Ayodhya city limits, which
presently have goats and bovine feeding
there, to be renovated and namaz
allowed. Muslims remember that no
temples are allowed in most Islamic
countries.” This tweet also precludes the
possibility of a mosque at an alternative
site in Ayodhya.
How important is the settlement
proposal now that the judges may have
started writing their respective judg-
ments? Jilani said the dispute was about
the ownership of the disputed land
which the mediation panel was not
mandated to decide. He called the set-
tlement proposals “inconsequential” and
said they may not have any bearing on
the judgment.
There is no doubt that peace and har-
mony will be under threat even if the
Supreme Court settles the issue in favour
of Hindus. Like Subramanian Swamy,
the Akhil Bharatiya Akhara Parishad
(ABAP) wants Muslims to give up claims
on Kashi and Mathura mosques. Who’s
going to stop the ABAP from belliger-
ence if Muslims cite the Places of Wor-
ship (Special Provision) Act, 1991?
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
ASI report establishes that the
Babri Masjid was not built on
vacant or agricultural land, but on
land on which a “massive struc-
ture”, dating back to at least 2nd
century BC, stood.
History books establish there was
a temple. It is the unshakeable faith
of believers that this is the birth-
place of Ram. That itself is the
greatest evidence.
Both Hindus and Muslims con-
sider Ayodhya the birthplace of
Ram and there is no difference of
opinion regarding this.
Allahabad HC held the disputed
site is a deity. If that is so, awarding
joint possession is bad in law.
Inscriptions on a stone slab
“recovered” from the rubble of the
demolished Babri Masjid pointed
to existence of a 12th century
Vishnu temple.
KParasaran
Examining historic rulership and
legitimacy of actions of emperors
like Babur and Aurangzeb will
open a Pandora’s box.
Archaeological Survey of India
report at best an “opinion” and
“cannot be accepted as evidence”
to decide the case.
Alleged placing of idols of
Hindu deities below the central
dome of the Babri Masjid on the
intervening night of December 22-
23, 1949, was a planned, surrepti-
tious attack and an illegal usurpa-
tion.
There were idols of Hindu
deities in the Ram Chabutra, but
Hindus did not have title over the
place, only the right to pray.
The demolished (Babri Masjid)
building belonged to us… the
right to reconstruct it also belongs
to us. Nobody else has the right.
RajeevDhavan

18. Supreme Court/ Overruled Judgments
TheCourthastermedthepracticeofcitingcasesoverruledbyalargerbenchas“unfortunate”.Butitisthe
dutyoftheBartoassisttheCourtandnotmisleadit.Besideswastingtime,isitnotacriminalact?
By Prof Upendra Baxi
Not Misfortune
But Injustice
18 October 28, 2019
Anthony Lawrence

19. NCE again the Supreme
Court of India has held in Raj
Kumar (October 4, 2019)
that it was “unfortunate” that
at the “Supreme Court level
counsel cite judgments that
have been overruled” (as per Justices
Deepak Gupta and Aniruddha Bose). Of
course, in that case, the refusal to exercise
Article 142 to do complete justice and to
send the appellant to jail after 20 years
by way of minimum sentence under food
adulteration causes concern; there is not
even a whisper of a justified clemency!
Does a jail sentence, two decades later,
serve any justified end of punishment?
But the main focus of this analysis is
the practice of citing overruled cases. We
do not know how inveterate this practice
is. But the apex court encountered it pre-
viously. Justices Arijit Pasayat and CK
Thakkar in Nalinikanta Muduli (2005)
found it “strange” that “a decision which
has been overruled by this Court nearly
quarter of a century back was cited by the
Bar and the court did not take note of
this position and disposed of the matter
placing reliance on the said overruled
decision”. Apparently, “the decision of this
Court reversing the judgment of the High
Court was brought to the notice of the
learned Single Judge who was dealing the
matter”. Terming again the situation as
“very unfortunate”, Justice Pasayat
famously held: “Members of the Bar are
officers of the Court. They have a bound-
en duty to assist the Court and not mis-
lead it. Citing judgment of a Court which
has been overruled by a larger Bench of
the same High Court or this Court with-
out disclosing the fact that it has been
overruled is a matter of serious concern.”
It held that “it was duty of the learned
counsel appearing for the petitioner
before the High Court not to cite an over-
ruled judgment. It is not that the decision
is lost in antiquity. It has been referred to
in a large number of cases since it was
rendered. It has been referred to recently
in many cases...”
In Sunita Pandey (2018), Justice Lok
Pal Singh (and Justice VK Bist) faced a
piquant situation where the lawyer
responded that “he is not aware of the
judgment of the Hon’ble Apex Court”.
The Court held that a “lawyer is sup-
posed to have the knowledge of a judg-
ment delivered by the Hon’ble Apex
Court, which is the law of land” and
“cannot make excuse for unawareness of
a particular judgment of the Hon’ble
Apex Court and also cannot be permitted
to cite a judgment, which has already
been overruled”. Further, a “lawyer is
known for his legal acumen. He should
not have argued the Writ Petition (PIL)
and should have suggested his clients to
withdraw the Writ Petition (PIL) but the
attitude of the learned counsel for the
petitioners that he has been engaged to
argue the matter appears to be against
the ethics of a lawyer and further it
appears to the Court that he has not
given proper advice to his clients”.
What makes the case interesting is
that instead of withdrawing the petition,
“the learned counsel for the petitioners
has again wasted valuable time of this
Court for his own satisfaction” when
numbers “of litigants are waiting for
their turn”.
The Court further said: “We were
O
| INDIA LEGAL | October 28, 2019 19
DELAYED JUSTICE
In Sunita Pandey, a PIL was filed against the
Alaknanda Hydro Electric Power Project for
breach of trust
InSunitaPandey (2018),JusticesLokPalSingh(left)andVKBisttoldalawyer
whoclaimedhewas“notawareofthejudgmentoftheHon’bleApexCourt”that
asalawyerhewas“supposedtoknowthelawoftheland”.
power-technology.com

20. what is the overall situation with regard
to the citation of overruled past deci-
sions? Obviously, it is far from being a
one-off situation. It is certainly more fre-
quent, but do the judgments discussed
here suggest any institutionalised pat-
tern? Only nationwide empirical studies
may show whether it is a case of a few
rotten apples or whether the entire orch-
ard is blighted. The present information
certainly shows a cause for concern.
Second, are the acts of citing over-
ruled decisions to be regarded as merely
“misfortunes” or acts of “injustice”?
Professor Judith Shklar valuably drew
attention to the distinction between the
two in The Faces of Injustice (1991). She
showed that the more the scope of mis-
fortunes (accidents), the less becomes
the scope to regard the events as injus-
tice (willed harm or sheer defiance).
Injustices call for active structural ame-
lioration; misfortunes have to be borne
as graciously as one can.
Third, what duties may the organised
learned profession of lawyers be said to
owe to the judiciary and society at large?
Indian law schools, by and large, indif-
ferently offer a course on legal ethics.
The Bar Council is normatively the cus-
todian of high professional standards.
expecting from the learned counsel…
that he should make a statement on
behalf of the petitioners that the peti-
tioners were not aware of filing the
Writ Petition (PIL) on the judgment
passed by the Hon’ble Apex Court and,
therefore, they have filed the aforesaid
Writ Petition (PIL) on an advice or on
bonafide mistake of fact, but, the
petitioners and their counsel are not
ready to make such submissions before
this Court”.
What is bizarre about this situation
is not simply that the learned counsel
insisted on being further heard, the
Court thought that he had “no option
but to decide the Writ Petition (PIL) on
merits, as the counsel has insisted this
Court to decide the matter on merits
after giving him full opportunity”. Even
more astonishing is the Court’s own
reluctance to follow the Supreme Court
ruling on vexatious and frivolous cases.
In Suraz India Trust (2017), it was said
that such litigation “should be declined
and be tackled with iron hands”. The
Supreme Court there levied a fine of `25
lakh. But the High Court was content to
award exemplary damages of `50,000
given the fact that the petitioners are
“the residents of hilly State of Uttara-
khand, they might not be in a position
to pay such huge exemplary cost….”
All the High Court did was to lament:
“We can only express our anguish
at the falling standards of profess-
ional conducts.”
I
n yet another case, Major Ashok
Kumar Singh, 1999, the Allahabad
High Court was constrained to say
that it is “very unfortunate that this deci-
sion … of the Supreme Court was not
cited at Bar on behalf of the counsel of
either side. It is also unfortunate that
responsible members of the Bar are cit-
ing overruled decisions which may also
result in obtaining wrong judgments
from the Court. It is expected that in
future the members of the Bar will take
care in citing decisions and will at least
not cite overruled decisions”.
Many questions thus arise. First,
But neither have done much to study or
redress this problem as a matter of the
best ethical standards and practice of a
learned profession. This must now swift-
ly end. We must also expect the National
Judicial Academy and state academies to
have an institutional stake in addressing
this issue.
Fourth, should not justices go beyond
gentle admonitions to a stricter regime
of discipline? Why are the courts so
helpless before errant lawyers? Is it
because sometimes the judges make sim-
ilar errors? But as and when they do,
why are they not sternly handled by the
disciplinary judicial mechanisms of pass-
ing strictures and maintaining an
adverse record so that such judges at
least do not get further elevated?
Further difficult questions arise in
considering whether mis-citation or non-
citation is a contumacious or criminal
act. There are difficulties as far as crimi-
nal contempt is involved since it will
have to be shown that the accused had
an intention of duping the court. Should
a criminal prosecution lie for alleged
misrepresentation under Section 420,
IPC? Should it be made a strict liability
offence? Does inadvertence (or wilful
disobedience as in the Uttarakhand case)
not invite stern action by the judiciary?
Should not the Bar Councils act in statu-
tory disciplinary proceedings, or should
even the apex court inconsequentially
rest by merely describing the situation as
“unfortunate”? Is it not the duty of
courts to nudge, or even in egregious
cases to impose, some punishment?
It is time that such questions are
increasingly faced if trust and faith in
professional lawyering and responsible
and responsive justice to the people are
tasks still considered worthy of ceaseless
pursuit.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
Supreme Court/ Overruled Judgments
20 October 28, 2019
“CitingjudgmentofaCourtwhichhas
beenoverruledbyalargerBenchofthe
sameHighCourtorthisCourtwithout
disclosingthefactthatithasbeen
overruledisamatterofseriousconcern.”
—JusticeArijitPasayat
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

21. `100
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September23, 2019
TheLegendLivesOnApoignanttributetothelateRamJethmalanibyasenioradvocatewhoknewhimwell
revealsexactlywhyhewassoreveredandrespected.Plus,anexplosiveinterviewhegave
toIndia Legalin2016.
Ayodhya Hearings:
Twists and turns
UK Crisis: 10
Drowning Street
GAL
veca
pl
NDIA EGALEEL STORIES THAT COUNT
` 100
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www.indialegallive.com
September30, 2019
Regulating
Online
ContentSomepetitionsbeforethe
SupremeCourtseeking
regulationofsocialmediahave
givenrisetoconcernsoverfree
speech.Howhaveother
countrieshandledthis
sensitiveissue?
Resignations in
Bureaucracy: Moral stand
J&K: Apex court’s
healing touch
GAL
NDIA EGALEL STORIES THAT COUNT
` 100
NI
www.indialegallive.com
October7, 2019
RadicalReformTheSupremeCourt’sdecisiontocreateapermanentConstitutionBenchandsingle
benchesislongoverduebutquestionsremain.Ananalysis
Indore: The VIP
Honey Trap
Whistleblower Scandal:
Can Trump be impeached?
DIAAAAAAAAAAAAAAAAAAAAAAAA EEE
otut
GAL
An
NDIA EGALEEL STORIES THAT COUNT
` 100
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www.indialegallive.com
October14, 2019
WillsplittingtheSupremeCourtassuggestedby
VenkaiahNaidu(left)helpsteadythedisposal
ofcases?AnanalysisbyProf.UpendraBaxi
The Gita for
engineers
Saying NO
to vaping
BifurcatingTheSystem
GGAALL
stt
spp
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SSSS
NDIA EGALEEL STORIES THAT COUNT
` 100
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www.indialegallive.com
October21, 2019
Thepresident’scommutationofdeathsentenceimposedonBalwantSinghRajoana,
convictedfortheassassinationofformerPunjabchiefministerBeantSingh,opensthe
debateonhowtheStateshouldconsidermercypetitions
Dissent and the Courts
by Shiv Visvanathan
Recusals
and Justice
HANGING
FIREBalwant Singh Rajoana being
taken to a hospital in Patiala for
medical check-up in July 2015

22. Courts/ Social Media Content
22 October 28, 2019
AN social media platforms
such as Facebook, Google
and Instagram disown
responsibility for their con-
tent despite adverse conse-
quences for the reputation,
safety and security of individuals? On
September 18, Justice Rajiv Sahai
Endlaw of the Delhi High Court ordered
Google and Facebook to remove all
anonymous social media posts making
#MeToo allegations against artist Sub-
odh Gupta. It also directed them to
reveal in a sealed envelope the identity of
the Instagram account holder,
“Herdsceneand”, through which such
allegations were made.
The order directed the platforms to
take down and block as many as 18 web
links carrying sexual harassment allega-
tions against the artist. The anonymous
“Herdsceneand” was also restrained from
posting any further content pertaining to
the artist. Justice Endlaw held that
“prima facie, it appears that the allega-
tions as made in the allegedly defamatory
contents, cannot be permitted to be
made in public domain/published with-
out being backed by legal recourse. The
same if permitted, is capable of mischief.”
Gupta’s counsel told the Court that
none of the alleged victims of sexual
harassment had been named in the con-
tent and none had identified himself/
herself, and no legal proceedings had
been initiated against Gupta or the con-
tents published.
In response, the counsel for the social
media platforms told the Court that the
18 web links which were directed to be
blocked were search results and not
URLs and they led to a large number of
URLs, all of which may not contain
defamatory content. The Court then
directed Gupta’s counsel to intimate to
Google the URLs containing the defam-
atory content and asked Google to
remove those URLs within 72 hours of
communication of such information.
The Guardian reported that the
Instagram post appeared to be from a
former female associate of Gupta, and it
accused Gupta of sexual misconduct,
including repeated requests for an assis-
tant to pose nude. Gupta, however,
denied the allegations last December. “I
Right to
Reputation
SocialmediaplatformshaveraisedconcernsoveraDelhiHCorder
totakedown#MeTooallegationsagainstartistSubodhGuptaand
revealtheidentityoftheaccountholderwhopostedthem
By Venkatasubramanian
C
FIGHTING SLANDER
Artist Subodh Gupta

23. | INDIA LEGAL | October 28, 2019 23
mon these organisations as defendants.
While Facebook blocked the allegedly
defamatory posts on Instagram (which is
its creation) in India, users abroad can
still view them. Gupta’s counsel is sure to
raise this issue at the next hearing in
view of the artist’s international reputa-
tion. Facebook’s so-called compliance
with Justice Endlaw’s order, therefore, is
debatable.
In a similar case, an Austrian politi-
cian in 2016 sought the removal of a
user’s defamatory comments about her
on Facebook, along with any similar
messages posted by others globally.
Austria’s top court, according to a story
in Financial Times, asked the European
Court of Justice (ECJ) to interpret the e-
commerce directive, which does not
require tech groups to monitor all con-
tent on their platforms and exempts
companies from direct legal responsibili-
ty for user-uploaded material.
The ECJ concluded that national
courts that deemed content illegal could
order social media platforms to search
and delete identical or “equivalent” con-
tent worldwide. According to observers,
however, the ECJ’s ruling is deeply
flawed. When removing offending
content, the ECJ said, platforms could
use automated filtering systems to
help them.
The Financial Times editorial
expressed its concerns: “This technology
(automated filtering systems) is expen-
sive to create and operate, advantaging
well-heeled Big Tech companies.
The definition of ‘equivalent’ is also
vague. Given the increasing pressure
from regulators, platforms are likely to
interpret the word more broadly than
they might have before. Previous laws,
such as Germany’s regulations against
misinformation and hate speech online,
have shown that using automated filter-
ing to weed out harmful content creates
problems with more nuanced points,
such as satire for example. The ruling
could be exploited by European populist
governments where rule of law is
weakening: courts there could demand
that critical content be removed world-
wide….Attempting to impose the bloc’s
will worldwide may encourage other
states to assert policy transnationally...
Policymakers, regulators and the courts
should be wary of ill-planned interven-
tions that risk doing more harm
than good.”
Even as the Delhi High Court case
involving Gupta’s right to reputation is
inconclusive, Justice Mangesh S Patil of
the Bombay High Court held on October
4 in another case that journalists do not
enjoy some kind of special privilege or
have greater freedom than others to
make imputations or allegations suffi-
cient to ruin the reputation of a citizen.
They are in no better position than any
other person, he held.
The truth of an allegation does not
permit a justification unless it is proved
to be in public good, he added. “The
question whether or not it was for public
good is a question of fact which needs to
be proved like any other relevant fact,” he
further explained.
JusticeRajivSahaiEndlawofthe
DelhiHighCourtalsorestrained
theInstagramaccountholder,
“Herdsceneand”frompostinganyfurther
contentpertainingtotheartist.
have never behaved in an inappropriate
manner with any individual who worked
with me and several of my former assis-
tants can attest to this. These allegations
are entirely false and fabricated,” he
reportedly told The Mint newspaper.
Gupta then filed a defamation suit
against the anonymous Instagram
account holder for publishing “unfound-
ed, baseless sexual harassment allega-
tions”. Gupta is a reputed sculptor and
makes installations out of everyday items
such as stainless steel tiffin boxes,
kitchen utensils, buckets and milk pails.
As the case is listed for further hear-
ing on November 18, Google has
expressed concern that such an order
from the High Court would have a “chill-
ing effect on free speech”. Google also
reportedly claimed that it would be
“against public interest” to take down the
articles. On October 14, Google moved
the Delhi High Court seeking to vacate
Justice Endlaw’s order directing it to
remove the content. Google argued that
in a case of alleged defamation, if a
prima facie and interim injunction needs
to be given, then the threshold for this
alleged defamation must be very high. In
the case of Gupta’s defamation suit and
plea for injunction, the Court did not
hold any inquiry into the truth of the
allegations, which purportedly defamed
him, Google contended.
G
oogle justified a very high
threshold to admit such petitions
for injunctions in order to keep a
fair balance between the constitutional
right of free speech and individual rights.
It also claimed that it “merely performs
the task of indexing information”, and
that such information is already available
on independent third party websites that
are beyond its control and supervision,
and that it does not create, own or con-
trol any content on third party websites.
Google wondered how it could take
down content which it neither hosted
nor published.
Although Gupta has sought blocking
of stories published in The Economic
Times and Scroll, the Court did not sum-
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

24. Courts/ Tamil Nadu/ Illegal Banners And Hoardings
24 October 28, 2019
N September 12, Subh-
asri, a 23-year-old techie,
was killed after an illegal
banner erected by a for-
mer municipal councillor
of the ruling All India
Anna Dravida Munnetra Kazhagam
(AIADMK) fell on her while she was
riding her bike through a busy road in
south Chennai. The banner was to wel-
come Deputy Chief Minister O Panneer-
selvam who was arriving in the vicinity
to attend the wedding of the ex-council-
lor’s son.
On October 10, a vacation bench of
the Madras High Court recommended
to a division bench hearing petitions to
ban illegal banners/hoardings to recon-
sider the issue of imposing prohibition
on printing pictures of “living persons”
on them. The vacation bench, headed by
Justice S Vaidyanathan and comprising
Justice C Saravanan, urged the division
bench of Justices M Sathyanarayanan
and N Seshasayee which is hearing all
the cases related to banners/hoardings
to take note of its suggestion.
The vacation bench was hearing a
petition from R Ravi, the father of Su-
bhasri. He had prayed for maximum pu-
nishment to those who were indulging
in erecting illegal hoardings/banners
and pleaded for a compensation of `1
crore for the death of his daughter. He
also prayed for constituting a Special
Investigation Team to inquire into the
complete details of erection of illegal
banners/hoardings in Tamil Nadu.
Experts say that the recommendation
of the Justice Vaidyanathan bench is
unlikely to get past the bench headed by
Justice Sathyanarayanan in the light of
legal developments in the past.
In October 2017, while dealing with a
bunch of petitions related to the erec-
tion of banners/hoardings (both legal
and illegal) in the state, Justice Vaidya-
nathan of the Madras High Court had
imposed a blanket ban on printing of
photos of living persons on banners/
hoardings with immediate effect. A few
days later, the Tamil Nadu government
appealed to a division bench to remove
the ban on photographs of Tamil Nadu
Chief Minister Edappadi Palanisami on
hundreds of banners/hoardings. But the
bench refused to interfere in Justice
Vaidyanathan’s order and dismissed the
government’s plea.
Poster Wars
Thedeathofayoungtechiehaspromptedavacationbenchof
theMadrasHighCourttorecommendabanonpicturesofliving
personsonposters.Butitiseasiersaidthandone
By R Ramasubramanian in Chennai
O
Youtube
LARGER THAN LIFE
(Above right) Cut-outs of political leaders;
Subhasri, a young techie, died after a
hoarding fell on her in Chennai

25. | INDIA LEGAL | October 28, 2019 25
The state government then appro-
ached the High Court again, this time
through the Chennai Corporation. In
December 2017, a division bench com-
prising then Chief Justice Indira Baner-
jee and Justice R Hemalatha quashed
Justice Vaidyanathan’s order. The bench
clearly stated that there was no statute
or rule that prohibited inclusion of pic-
tures on banners/hoardings.
The Tamil Nadu government may be
arguing from a position of strength as,
during the hearing before the Court, the
advocate general of the state, Vijay
Narayan, said that outdoor advertise-
ments containing endorsements made
by cinema stars and celebrities belong-
ing to several walks of life, etc., were
common and if the ban was imposed, it
would spell doom for the advertising
industry. He contended that the conse-
quences would be disastrous not only
for the advertising industry but also for
other allied fields like carpenting, paint-
ing, the paper industry, and so on.
Narayan also cautioned the Court
that before taking any decision in the
matter it should take into account the
sizeable revenue received by local
Thebusinessoferectingbanners,
flexboardsandhoardingshasbeena
lucrativeoneinTamilNaduforthepast
30yearsandcurrentlyemploysmore
than20,000people.
twitter.com

26. bodies in the state by way of licence fees
for erecting banners/hoardings and con-
sider the employment generated for
thousands of people who are directly or
indirectly earning their livelihood from
this occupation.
The chief justice-led bench accepted
the government’s argument and said the
single judge had erred in law by direct-
ing the chief secretary of the state to
issue a circular to all local bodies asking
them not to grant permission for ban-
ners, flex boards, signboards and hoard-
ings featuring portraits or photographs
of people who are alive.
The bench also said that since there
was no challenge to any act, rules or reg-
ulations which regulate the erection of
banners, hoardings, flex boards and so
on featuring portraits or photographs of
living persons, the single judge’s order in
this regard was not legally maintainable
and quashed it.
A
section of lawyers and even ju-
rists are surprised by Justice
Vaidyanathan’s recommendation
to the Justice Sathyanarayanan bench to
reconsider the lifting of the ban. The
lawyers find it incongruous that Justice
Vaidyanathan made such a recommen-
dation when his own order was already
quashed by a division bench earlier. “I
am perplexed. The division bench of the
High Court was clear that there was no
provision in the law regulating the erec-
tion of banners/hoardings that men-
tions about banning such pictures/por-
traits,” said R Pandiyan, a practising
advocate in the Madras High Court.
The business of erecting banners/
flex boards/hoardings has been a lucra-
tive one in Tamil Nadu for the past 30
years. In fact, there was a powerful lo-
bby called the Tamil Nadu Outdoor
Advertisers Association working in this
field for several years. Its job is to erect
commercial hoardings/banners/flex
boards both in public and private places.
The clientele includes not only private
companies but also public sector under-
takings like Air India, ONGC, IOC, etc.
Trouble started in 1991 when the late
AIADMK general secretary J Jayalali-
thaa captured power in the state. Huge
cut outs, hoardings and banners carry-
ing her pictures became the order of the
day. The public display of sycophancy by
AIADMK party cadres bordering on the
extreme resulted in the flooding of giant
cut-outs—some as tall as 120 feet—
throughout the state, especially in capi-
tal Chennai.
After Jayalalithaa was thrown out of
power in 1996, a change of mood set in
and the erection of political banners and
cut-outs saw a dip but commercial ban-
ners and hoardings started increasing.
After much litigation, the Tamil Nadu
government decided to allow only politi-
cal banners/hoardings for a stipulated
period and imposed a blanket ban on
commercial advertising through ban-
ners/hoardings.
People in the know of things say
what Tamil Nadu now needs is not a
total ban on banners/hoardings but reg-
ulation. It is argued that vast amounts
of money accrue to the government,
especially to local bodies, from the busi-
ness. There are over 20,000 people
employed directly and indirectly in the
business and the government can allow
banners/hoardings by charging licence
fees and ensuring a safe environment.
“The size, stability and the correct
place for erection of banners/hoardings
must be ensured and the state govern-
ment can establish a nodal agency for
this separately or create one in all the
local bodies in the state,” said CS
Kotteeswaran, a Chennai-based
journalist.
Coming to the question of statutory
provision for printing photographs of
living persons on banners and hoard-
ings, there is no law that bans it.
Besides, as the state advocate general
told the High Court in 2017: “The
advertising industry could not be expec-
ted to wait for a model to die or go in
search of dead models in view of the
court-imposed ban.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
LegaleaglesinChennaiaresurprisedatthedecisionofthevacationbenchofthe
MadrasHighCourt,comprisingJusticesSVaidyanathan(left)andCSaravanan,
recommendingsuchabansinceadivisionbenchhadalreadymadeitclearthatthere
wasnoprovisioninlawtoregulatebannersdisplayingsuchpictures.
26 October 28, 2019
Courts/ Tamil Nadu/ Illegal Banners And Hoardings

27. Even as the possibility of a deal or
no-deal Brexit rests with the Bri-
tish parliament, what is called the
“Brexit jitters” has already had its im-
pact on industry and corporates. The
European Medicines Agency (EMA),
which evaluates and supervises medic-
inal products, has relocated to Amster-
dam, taking hundreds of employees
who are getting used to life in the
Dutch capital after their extended stay
in London. For most, it can be a
stressful experience to make a cross-
continental move to the small, com-
pact Dutch city from the sprawling,
cosmopolitan megapolis of London.
According to a survey by the Bri-
tish Chambers of Commerce,
one out of five UK business-
es plans to move part or all
of its operations out of UK if
there is a no-deal Brexit. The
Netherlands Foreign Invest-
ment Agency has said that
98 UK companies have al-
ready moved to the Nether-
lands because of Brexit.
Another 300 companies
have contacted the agency
because they were curious
about making a similar
move. Other companies and consul-
tancies are using the uncertainty to
arrange seminars on how to relocate
and which countries in Europe offer
the best opportunities. Websites have
also sprung up to connect businesses
in the UK with potential partners in
Europe in the same field.
Meanwhile, Poland’s Prime Minis-
ter, Mateusz Morawiecki, has urged
the huge population of Poles living in
the UK to return home to help Pol-
and’s economy grow because of con-
cerns with Brexit. (Poles have overtak-
en Indians to become the largest
immigrant community in the UK.)
Boris Johnson’s claims of a deal come
with a lot of question marks and a
hard Brexit could hit Britain’s econo-
my, well.., hard.
| INDIA LEGAL | October 28, 2019 27
The BBC has come up with an intriguing
question: What would the future look like
if it were driven by women? Their list of 100
women for 2019 seeks to answer the question
as they profile a wide range of women—from
climate-change activist Greta Thunberg to
transwoman Nisha Ayub.
The real surprise is the number of Indian
women, many not so well-known outside their
respective fields. They include Parveena Ahan-
gar, known as the “Iron lady of Kashmir”. Her
teenage son disappeared in 1990 and inspired
her to set up the Association of Parents of
Disappeared Persons which also looks at simi-
lar cases outside Kashmir.
Also on the list is British-Indian Sharan
Dhaliwal, founder and editor-in-chief of Burnt
Roti magazine, which focuses on mental and
sexual health for young South Asians, and
LGBTQ rights. Then there is Aranya Johar who
uses beat poetry to address issues like gender
equality, mental health and body positivity.
There’s Sushmita Mohanty, called “India’s space
woman” for her role as a spaceship designer.
She uses her business to help monitor and
understand climate change from space.
Natasha Noel is a master practitioner of
yoga and wellness coach. She uses her traumat-
ic childhood to advocate women’s rights. A
practising doctor, Pragati Singh began organis-
ing meetings for people looking for non-sexual
relationships and now runs Indian Aces, an
online community for asexual people. Probably
the best-known Indian woman is Vandana Shi-
va, an environmental activist and now a world-
renowned environmental leader and winner of
the Alternative Nobel Peace Prize.
International Briefs
C
ar manufacturers are increas-
ingly focused on using technol-
ogy to create a “wow” factor
which offers something unique and
special. Leading the field is German
technology major Brose which is pro-
moting intelligent interaction between
door and interior functions.
A recent prototype showed that
owners can open the doors of the car
using gestures and knocks. A newly
developed seat fully reclines in lounge
mode. Leg rests and adjustable arm-
rests adapt to the vehicle occupant’s
build, while a music-synced massage
begins and the flow of air from the air
conditioning system automatically
adjusts to the new position. Even from
a distance, the vehicle can recognise
and welcome the driver with a projec-
tion on the ground. Vehicle users sim-
ply gesture or knock to signal their
desire to enter. The handle-free doors
open automatically, while a radar sen-
sor prevents collisions. Moreover, the
second row of seats is completely elec-
trified and can slide automatically
when an occupant knocks three times
to enable better access to the third
row—all without making any compro-
mises in terms of safety.
Open Sesame
Brexit Exodus
(Clockwise from top
left) Natasha Noel;
Sharan Dhaliwal;
Nisha Ayub
Women of 2019

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

30. Environment/ Stubble Burning
30 October 28, 2019
OME October and reports
start appearing about pollu-
tion caused by the burning
of paddy stubble after the
harvest in the plains of
Punjab, Haryana and parts
of Uttar Pradesh. The problem worsens
in November to beat the deadline for
sowing wheat.
The narrow window between har-
vesting of paddy and sowing of wheat
has now become a nightmare for people
living in these areas as well as the na-
tional capital where the existing pollu-
tion gets exacerbated with smoke from
thousands of burning fields. The smog
hangs in the atmosphere till winter rains
dissipate it.
Environmentalists wake up to the
serious issue and organise seminars,
conferences and workshops highlighting
the dangers and resolve to educate the
farmers. State governments too come
out with lofty promises for tackling the
issue by introducing technology and
machinery besides using coercive meth-
ods to restrain farmers from putting
their harvested fields on fire.
Harvest of Tears
ThoughtheNGThasaskedPunjab,HaryanaandUPtobecautiousaboutfarmersputtingfieldson
fireandcausingairpollution,thegovernmentsarelackadaisicalinstampingoutthisproblem
By Vipin Pubby in Chandigarh
C RELEASING POISON
A paddy field on fire along the Sirsa-Delhi
highway; (facing page) the burning affects air
quality in Delhi and neighbouring states
UNI

31. | INDIA LEGAL | October 28, 2019 31
The National Green Tribunal (NGT)
has also been seized of the menace and
asked state governments to take appro-
priate steps. This year, the NGT sent out
a caution before the normal period of
such fields being put on fire. It directed
the chief secretaries of Punjab, Haryana
and Uttar Pradesh to constitute special
cells to review the air pollution levels on
a daily basis for the next one month.
The panel has directed them to finalise a
monitoring mechanism in the wake of
reports of some harvested fields already
on fire.
The NGT, headed by Justice AK
Goel, passed the order on a plea filed by
an activist, Ganga Lalwani, for remedial
action to prevent the burning of crop
residue in the NCR region.
Referring to the statistics placed
before it, the panel noted that 25 to 30
percent of the air pollution in the NCR
is caused by the burning of crop residue
in and around Delhi in October and
November every year. The petitioner
said that in October 2015, the principal
bench of the Tribunal in the Vikrant
Kumar Tongad versus Environment Po-
llution (Prevent and Control Authority)
and Others had directed the centre to
ensure that farmers were provided equi-
pment and financial help for the degra-
dation of the crop residue in an eco-
friendly manner.
Subsequently, the centre had laun-
ched a scheme called Promotion of Agri-
culture Mechanisation for in-situ Mana-
gement of Crop Residue to provide ass-
istance by way of machinery, finances
and information to tackle the problem
of stubble burning. The NGT had, in
July last year, also directed the agricul-
ture ministry to monitor the situation,
and asked the chief secretaries of Pun-
jab, Haryana, Rajasthan, Uttar Pradesh
and Delhi to review the situation. It also
held a meeting with the members of the
Tribunal, representatives of Central Po-
llution Control Board, various minis-
tries, representatives from Punjab, Har-
yana, Uttar Pradesh, Rajasthan, NCT of
Delhi, nominees of IIT-Delhi, IIT-
Kanpur and the National Environ-
mental Engineering Research Institute
to discuss the issue.
The meeting had recommended that
a carrot and stick policy be adopted.
Under this policy, those who help the
environment by not burning stubble
should be rewarded with incentives and
those who don’t fall in line should be
slapped with disincentives. A resolution
at the meeting also said that modern
crop management machines should be
provided to farmers and decentralised
compositing encouraged to convert the
crop residue into organic manure.
W
hile the NGT deserves kudos
for taking up the issue before
the onset of pollution, the
state governments concerned have been
slow in taking effective measures. Pun-
jab, for instance, had reported 43,660
cases of stubble burning in 2017 but the
number had increased to 45,397 in
2018. There was a marginal change for
the better in Haryana where 16,032
cases were officially reported in 2017,
which reduced to 13,371 in 2018.
Both the governments had announ-
ced schemes to provide subsidies on
purchasing of machines that help in
managing stubble. These include happy
seeder machines, mulchers, choppers,
super straw management systems,
mould board ploughs, rotary slashers
and zero till drills.
However, statistics show that these
subsidies have made little impact. Even
coercive measures have not worked. The
Punjab government had gone ahead
with levying fines on farmers who put
their fields on fire but had to beat a
hasty retreat following mass protests
from farmers and political parties.
Haryana too was wary of protests on the
eve of assembly elections.
The major reason for the failure of
such subsidies is that a vast majority of
farms in both the states are fragmented
and small. The farmers, who have been
reduced to marginal farmers, say they
can’t afford to purchase the machines
despite the subsidies. They say the
machines can be used only once a
Stubblefirescausepollutionanddeprive
thefieldsofnutrientswhichwouldhave
beenrolledbackalongwiththestubble.
Expertstellthistofarmersbuttheydo
notresorttomachinesduetoeconomics.
UNI

32. year and they don’t have enough funds
to purchase and maintain them.
With the continuous erosion in the
economy of farmers, particularly small
and marginal ones, it is not difficult to
understand their reluctance in purchas-
ing the machines. Ironically, their prob-
lem started in the late 1990s when the
introduction of combine harvesters was
supposed to reduce their costs.
T
ill then, the farmers had to man-
ually harvest paddy and the crop
was cut right up to its roots. As
prosperity grew in the region, farmers
hired labourers, generally from Bihar,
Uttar Pradesh and Rajasthan. There
used to be reports about farmers going
to these states to hire labour or to pick
up labour coming on trains. With the
advent of combine harvesters, farmers
found it cheaper to hire such machines
than pay the labour. These machines
were purchased either by rich farmers or
entrepreneurs who would take contracts
to harvest paddy. While the prevailing
rates for harvesters are around `1,400
per acre, manual harvesting costs about
`1,700 per acre. Also, the shortage of
labour, mainly due to rural schemes like
MGNREGA, added to the uncertainty of
getting labour.
This led farmers to opt for combine
harvesters but these machines do not
cut crops close to the ground and leave
two-three inches of stubble. Farmers
cannot manually sow wheat as the
pointed stubble would injure them.
Employing labour to remove stubble
means sharply increasing the cost of
harvest. The easier way, thus, is to put
the fields on fire and burn it down.
Not only do the fires cause pollution,
they also deprive the fields of nutrients
which would have been rolled back
along with the stubble. This is what the
experts have been telling the farmers,
but economics has come in the way of
introducing machines to deal with the
problem. Experts say that the model for
renting out harvesters or taking con-
tracts to harvest the crop could also be
employed for machines like the happy
seeder. Either the governments must get
proactive in obtaining such machines or
private enterprise must be supported to
stamp out this problem.
Hopefully, such schemes will be
discussed and implemented at the
next meeting called by the NGT later
this month.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Environment/ Stubble Burning
LITTLE IMPACT
Punjab and Haryana have announced
subsidies for purchasing machines to
manage stubble but the idea has not worked
WhiletheNGT,whichhasbeenseizedof
themenace,deserveskudosfortakingup
theissuebeforetheonsetofpollution,
thestategovernmentsconcernedhave
beenslowintakingeffectivemeasures.
YouTube
downtoearth.org.in
32 October 28, 2019

33. T
he state of the economy is mirr-
ored partly in the state of the me-
dia, mainly to do with advertisers
and sponsors with deep pockets. Those
pockets are not so deep anymore con-
sidering that two much-anticipated litera-
ture fests organised by The Times of
India and The Hindu, respectively, have
been badly affected. The Times of India
conducts two major lit fests, one in Delhi
and the other, more prestigious one, in
Mumbai during the winter months. This
year, the Mumbai edition of the Times
Literary Festival, scheduled for mid-
December, has been called off. In an
interview to Scroll, Bachi Karkaria, co-
director, Times Litfest Mumbai, said: “Gi-
ven the economic downturn, it was not
economically feasible to host the Times
Litfest at the scale and standard to whi-
ch we had built it.” Meanwhile, The
Hindu’s Lit for Life, scheduled for Jan-
uary 2020, has been postponed by a
year. Advertising executives say that with
the tightening of belts in corporate India,
sponsorship of literature festivals is not a
priority. More so, considering there are
now so many literature festivals being
held around the country, all looking
for sponsors.
| INDIA LEGAL | October 28, 2019 33
Media Watch
Mobile First
T
he economy may
be on a downslide,
but one aspect of
Indian enterprise that
seems immune to such
headwinds is political par-
ties and elections. Almost
every day, readers are
being treated to full-page
colour ads or spreads by political parties
or CMs of the three states going to
polls—Maharashtra, Haryana and Delhi.
That, in turn, is bringing much needed
relief to the embattled print media which
has seen its revenue shrinking in the first
two quarters of the current financial year.
With the stakes sky-high in all three, poli-
tical parties have dug deep into their
electoral war chests and are spending
big-time. The two main
gainers are The Times of
India, which has benefit-
ted the most from the
Maharashtra polls, along
with Marathi publications
such as Lokmat and Sak-
al. Media expenditure has
also picked up in the Hin-
di-speaking state of Hary-
ana where publications
such as Dainik Bhaskar,
Jagran and Hindustan
Times are major gainers. While the Delhi
state elections are still a few months
away, the AAP government is spending
big on print media by buying full-page
ads in all leading dailies. A rough esti-
mate says it might spend more than
`100 crore on ads. That, coupled with
the extra advertising during the festive
season, has made a positive difference
to the bottomline of many media houses.
Skipping the Pages
M
obile is gaining mobility, liter-
ally. According to a new
report by exchange4media,
over 90 percent of all planning and
buying that happened in 2019 for the
digital medium was done keeping the
mobile device as the advertising des-
tination. The outlook for year 2020 is
a growth prediction of 30-35 percent
for digital advertising. The research
shows that mobile ads are expected
to take an astonishing 90 percent of
total digital ad spends. The revenue
generated from mobile advertising in
2020 is expected to be in the range
of `13,000 crore to `13,500 crore.
That is also to do with the fact that
India is the second largest smart-
phone market in the world with a user
base of over 400 million and growing.
Reliance Jio spurred an internet revo-
lution by offering affordable data,
which means that almost every Indian
is now hooked on to the internet.
According to a report by inMobi,
smartphone video viewers in India
are expected to reach 225 million by
2022, an increase of 117 percent
from 2018. So, it hardly comes as a
surprise that a majority of all digital
advertising is now mobile advertising.
The report says that factors such
as e-commerce, personalisation and
technological advancements on
smartphones have helped establish
the dominance of the mobile in
the digital arena, and it can only
increase.
Election
Bonanza

34. Focus/ RTI Act
34 October 28, 2019
NACTED in 2005, the Right
to Information Act marks its
14th anniversary this year.
On this occasion, Chief
Information Commissioner
(CIC) Sudhir Bhargava
accused government officials of violating
the Act with impunity. This is what he
said at a public meeting organised by
the Satark Nagrik Sangathan (SNS), a
citizens’ group: “Penalties were needed
to ensure effective implementation of
the transparency law, but indicated that
the state and central Information
Commissions (ICs) had their powers
curbed by judicial orders requiring
proof of mala fide intent on the part of
the offender. Public Information Officers
(PIOs) take advantage of this as it is
very hard to prove mala fide intent.”
This is bizarre considering that eminent
jurists like former Supreme Court judge
Madan Lokur had emphasised the need
for penalties to be imposed against the
erring officials.
As per a report card prepared by the
SNS and the Centre for Equity Studies,
Too Brazen to Care
TheActisdyingaslowdeathasPublicInformationOfficersviolateitbywithholdingvitalinformation
soughtbythepublic.Whyaren’ttheytakentotaskandpenalisedbyInformationCommissions?
By MG Devasahayam
E
RIGHT TO KNOW
An RTI protest in Delhi
Anil Shakya

35. | INDIA LEGAL | October 28, 2019 35
black hole and this incomplete NH-47
project, riddled with corruption, led to a
scam of around `5,000 crore.
This is the kind of reply most RTI
applicants are getting these days from
PIOs. First appeal within the depart-
ment does not make much difference
and the second and final appeal lies
with the ICs which are increasingly
becoming functus officio (when the
mandate expires).
From evidence, it appears that
the functioning of ICs is a major hurdle
in the effective implementation of the
RTI law.
The main reason is the failure of cen-
tral and state governments to promptly
appoint commissioners to central and
state commissions. In February 2019,
the Supreme Court in its judgment on a
PIL regarding the non-appointment of
ICs ruled that their proper functioning
with adequate number of commission-
ers is vital for effective implementation
of the RTI Act. The Court gave specific
directions to ensure the timely appoint-
ment of commissioners, stating that
the process for filling up of a vacancy
should be initiated well before it is likely
to occur.
Despite such specific intervention
from the Supreme Court, four vacancies
continue to remain unfilled in the CIC
since January 1, 2019, with the backlog
of appeals steadily rising every month.
As for State Information Commissions
(SICs), several are non-functional or
functioning at a reduced capacity
despite large backlogs as the posts of
Commissioners and CICs remain vacant.
The SIC of Andhra Pradesh, which con-
tinued to function as the Information
Commission of both Andhra Pradesh
and Telangana after the formation of the
latter, became defunct in May 2017
when all the serving Commissioners
retired. It remained non-functional for
17 months until October 2018, when,
on the directions of the Supreme Court,
three Information Commissioners were
appointed. But a CIC has still not been
appointed.
In Tripura, the SIC was functioning
with only the CIC, who retired in April
2019. Since then, no new appointment
had been made. As such, the SIC of
Tripura had been completely defunct for
over six months. Maharashtra,
Karnataka, Uttar Pradesh, Kerala,
Telangana, Odisha and West Bengal
have all been functioning with less than
the sanctioned number of ICs, leading
to a huge rise in pending cases.
In Maharashtra, the number of
pending cases stood at 46,000 appeals
and complaints on March 31, 2019. In
Uttar Pradesh, the number of pending
cases grew from 47,000 on January 1,
2019 to 51,682 by the end of February.
Similar is the case with the Central
Commission and most SICs.
Though the RTI Act states that
Commissioners should be appointed
from diverse backgrounds, 58 percent
TheRighttoInformationActmarksits
14thanniversarythisyear.Chief
InformationCommissionerSudhir
Bhargavahasaccusedgovernment
officialsofviolatingitwithimpunity.
ICs failed to impose penalties in about
97 percent of the cases where violations
took place in 2018-19. The State
Commissions of Tamil Nadu, Sikkim,
Mizoram and Tripura did not impose
penalties in any case. Apart from fines,
the Commissions also have the power
to recommend disciplinary action
against officials for persistent violations
of the RTI Act. Only 10 states invoked
these powers.
T
he report card observes: “The
failure of the Commissions to
impose penalties in clearly
deserving cases, sends a signal to the
PIOs that violating the law will not
invite any serious consequences. This
destroys the basic framework of incen-
tives and disincentives built into the
RTI law, promotes a culture of impunity
and exasperates applicants who seek
information at a high cost and often
against great odds.”
This laxity in imposing penalties
allows PIOs to take liberties with
the RTI Act at the cost of the public
and makes a mockery of the transparen-
cy law.
Let us see a typical example from the
farthest corner of India, Kanyakumari.
A retired principal scientist in the gov-
ernment sent an RTI application in May
2017 to the PIO, National Highway
Authority of India, seeking information
on the alignment of the 71-km “dupli-
cate” National Highway-47 and the pan-
chayats, villages, tanks/water bodies
affected thereof. This was the brazen
reply received: “...it is supposed that the
information being asked purposefully to
freeze/drag the NH-47 four-laning proj-
ect which is an economic important
project of Government of India by creat-
ing various legal/technical issues. Also,
disclosure of above information is dan-
gerous and insecure…. Hence the infor-
mation sought by you which would
prejudicially affect economic interest of
Government could not be disclosed
under section 8 (1) (a) and 8 (1) (g) of
Right to Information Act, 2005.”
Appeals against this reply went into a
UNI

36. of them are retired government officials.
Likewise, of the 115 CICs, an over-
whelming 83 percent were retired gov-
ernment servants, with 64 percent being
former IAS officers. The appointment of
ICs has virtually become a conferment
of sinecures on pliable officials. This led
a former CIC to remark that “govern-
ments have shown their dislike towards
the institution by posting the most hos-
tile bureaucrats as commissioners,
ostensibly to safeguard their embarrass-
ing truths”.
A
lso, the setting up of online por-
tals for Indian citizens and NRIs
to apply for information under
the RTI Act has been dismal. Except for
Maharashtra and Delhi, no other state
has established such a portal. This com-
pels the citizens to make a physical
application and pursue the same. This is
difficult and costly for those living in
far-off places as well as NRIs. Besides,
the cumbersome manual process makes
Section 7(1) of the RTI Act, which pro-
vides for disclosure of information if it
concerns the life or liberty of a person
within 48 hours, almost redundant.
Faced with skulduggery, the last few
years have been the worst for the RTI
Act as far as transparency and informa-
tion disclosure are concerned. It peaked
with the case that concerned the educa-
tional qualification of Prime Minister
Narendra Modi. In his order of
December 21, 2016, former CIC Sridhar
Acharyulu allowed inspection of Delhi
University’s 1978 BA degree records that
were supposed to include that of Modi.
In the process, he overruled the decision
of the Delhi University (DU) PIO to
deny this information on the ground
that it would invade the privacy of stu-
dents and that the information “has no
relationship to any public activity or
interest”. Soon after, the HRD segment
of Acharyulu’s jurisdiction was taken
away from him.
DU challenged the CIC’s order in the
Delhi High Court. It invoked the RTI
Act’s provision pertaining to privacy
(Section 8(1)(j)) and fiduciary relation-
ship (Section 8(1)(e)). The High Court
stayed the IC’s order in January 2017.
Appearing for DU, Additional Solicitor
General Tushar Mehta and the standing
counsel for the central government,
Arun Bhardwaj, submitted that the CIC
order had “far-reaching adverse conse-
quences for the petitioner and all uni-
versities in the country, which hold
degrees of crores of students in a fiduci-
ary capacity”. But a university degree is a
transparent document awarded in full
public view, displayed proudly and
attached with applications for admis-
sions/jobs and filing for electoral offices.
Yet, the case has not seen the light of
day. DU has succeeded in obtaining a
series of adjournments in the Delhi
High Court on frivolous grounds and
has so far ensured that this degree cer-
tificate remains hidden.
Celebrating such “transparency and
openness”, Union Home Minister Amit
Shah, while addressing the 14th annual
convention of the CIC in Delhi, claimed
that RTI applications were declining
because of the transparent system of
governance being practised. There was
no reference to the hurried RTI-killing
Amendment carried out recently to sup-
press truths about the functioning of the
government and its instrumentalities.
It is believed that the prime minis-
ter’s education case is one among the
five that led to the amendment.
Another one is to protect the
Election Commission from searching
queries on the unfair conduct of the
recent parliamentary elections.
Throttled by the government and
endangered by non-compliance, the RTI
Act is tottering. All we can say in the
manner of the French is: “Le roi est
mort, vive le roi (The RTI Act is dying,
long live the RTI Act).”
—The writer is a former Army
and IAS officer
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
36 October 28, 2019
Focus/ RTI Act
InhisorderofDecember21,2016,formerCICSridharAcharyuluallowedthe
inspectionofDelhiUniversity’s1978BAdegreerecordsthatweresupposedto
includethatofPrimeMinisterNarendraModi.
Anil Shakya

37. | INDIA LEGAL | October 28, 2019 37
Column/ Security Concerns In Kashmir Major General Ashok Mehta
URING last week’s bi-ann-
ual Army Commanders'
Conference, the highest
conclave that meets to dis-
cuss both tactical and
strategic issues facing the
Army, its chief, General Bipin Rawat,
complimented the forces for responding
to difficult operational situations in a
most innovative manner. In his address,
more than two months after the abroga-
tion of Article 370 in Jammu and
Kashmir (J&K), he singled out troops in
Kashmir for foiling the actions of Pak-
istan’s Border Action Team (BAT) along
the Line of Control (LoC) and keeping
at bay terrorists in the hinterland.
The Indian Army has not ceased
countering the designs of the Pakistan
Army and those of its proxies inside
J&K since October 27, 1947, when it was
airlifted into Srinagar after the
Instrument of Accession was signed the
previous day by the Maharaja of
Long Bloody Haul Ahead
IntheArmy’sassessment,insurgencycouldgetanewleaseoflifeinthedaysahead,with
PakistanproxiesandISI’smaterialsupport,andthingsmaygetworsebeforetheygetbetter
PENT-UP ANGER
There is widespread
resentment in Kashmir over the
prolonged shutdown, lasting
for over two months
D
UNI

38. Column/ Security Concerns In Kashmir/ Major General Ashok Mehta
38 October 28, 2019
Jammu and Kashmir, Hari Singh.
The Army has since fought many
wars and skirmishes in the state—the
1947/48 operations; Operation Gibraltar
and the war that followed in 1965; the
epic 1971 war in the west and east that
liberated East Pakistan into Bangladesh;
the Pakistan-instigated insurgency of
1989 which continues to this day; and
Pakistan’s misadventure in Kargil in
1999. This does not include the numer-
ous major terrorist attacks, among the
most recent being the one at Pulwama.
Cross-border terrorism has become Pak-
istan’s instrument of coercion and it has
cost that nation dearly.
Recently, Lt Gen Ranbir Singh—
remembered as the iconic turbaned face
of the surgical strikes when he was for-
mer Director General Military Opera-
tions in September 2016—the Northern
Army Commander incharge of J&K, in
an interview to a national daily, spelt
out the operational situation and his
plans to prevent Pakistan from destabil-
ising J&K through increased infiltration.
He said that the Army has deployed
additional troops by inducting them
from outside the Northern Command to
strengthen the counter-infiltration grid.
T
his consists of a first tier of de-
fence along the forward posts
and gaps between them are cov-
ered with surveillance devices, mines
and troops. The second counter infiltra-
tion tier follows the barbed wire fencing
along, ahead and behind the LoC/for-
ward posts—its location depending on
terrain and defensibility—which is also
manned by troops and surveillance
devices. The third tier in the hinterland
consists of posts both static and mobile.
For infiltration to succeed, terrorists
have to penetrate two or three tiers of an
elaborate network of defences as explai-
ned above.
Singh noted that following revoca-
tion of the special status of J&K on
August 5, there was an unusual spike in
infiltration but all attempts were
thwarted. Still, he said, the situation was
fragile, adding that nearly 500 terrorists
were poised in various training camps
along the LoC, waiting to sneak in.
Over the years, the terrorist popula-
tion has declined, from a high of 2,000
to 3,000 in 2000, to just 200 to 300
today, mainly in the Valley. Of these,
60 percent are local youths and the re-
mainder from Pakistan, mostly belong-
ing to the Jaish-e-Mohammad.
There has not been a single major
terrorist incident for the last 70 days,
due to the lockdown and high density of
security forces in J&K. Singh said that
due to the impenetrability of the counter
infiltration grid, it is likely that terrorists
will now use other border routes like
Punjab, Gujarat and Nepal.
On a visit to Doda’s “Sangam” youth
festival at the Bhaderwah campus of
Jammu University, Singh took questions
on the situation in J&K. When asked
about infiltration by Afghan militants,
he said there was speculation about that
but reports had not corroborated it. He
explained that terrorists generally dodge
the first tier on the LoC but are ambu-
shed in the next tiers. He also confirmed
that the option of another surgical strike
was on the table and it could be exer-
cised at an opportune time. Counter-ter-
rorism operations, he said, were in full
swing and areas from where militants
had infiltrated are being combed for str-
agglers. One such operation was carried
out last month for two weeks in the Gu-
rez sector, near Ganderbal lake, scouring
for terrorists believed to have penetrated
the first tier on the LoC. At least two
terrorists were sighted and shot dead.
Here are some statistics: Ever since
the removal of Article 370, the LoC has
become volatile with over 600 ceasefire
violations being recorded over the last
NorthernArmycommanderLtGenRanbir
Singhsaidthattherewasanunusual
spikeininfiltrationofterroristsafterthe
specialstatusofJ&Kwasrevokedbutall
attemptshadbeenthwarted.
SOUND STRATEGY
The barbed wire fencing of the LoC is part of
the counter-infiltration grid adopted by the
Army to stop terrorists from entering Kashmir
risingkashmir.com