India Legal 06 November 2017
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The document discusses the controversy surrounding the Taj Mahal, particularly in the context of hardline Hindu sentiments and political rhetoric. It highlights the tension between communal attitudes and the historical significance of the monument, while also questioning the cultural hypocrisy among leaders who espouse xenophobia despite having benefitted from Western education and ideas. The commentary reflects on the ideological divide within Indian society regarding heritage and identity.
![he confusion over whether
Aadhaar details are needed
for various services was
partly cleared recently.
While one petition dealt
with its linking to bank
accounts, the other was with regard to
mobiles. With numerous reports claim-
ing that the Aadhaar number was
mandatory in banks and others saying it
was illegal, the Reserve Bank of India on
October 21 clarified its stance. It said
that linking a person’s Aadhaar number
Link Up with Banks
16 November 6, 2017
Thecardhasbecomeapointofcontroversyasconfusionreigns
overconnectingitwithbankaccountsandmobilenumbers
By Rajesh Kumar
to link bank accounts with Aadhaar.
In another petition, filed on October
12, Kalyani Menon requested the
Supreme Court to declare Rule 2(b) of
the Prevention of Money Laundering
(Maintenance of Records) Second Am-
endment Rules, 2017, ultra vires, uncon-
stitutional, null and void and violating
Articles 14, 19 and 21 of the Consti-
tution. The petitioner also
sought that in future, appli-
cants not be coerced to sub-
mit Aadhaar numbers.
Meanwhile, the cen-
tre has informed the
apex court that it will
extend till March 31, 2018,
the deadline for linking
Aadhaar for availing of benefits.
PROPER VERIFICATION
However, the confusion about whether
to link Aadhaar numbers with mobile
connections persists. Faced with criti-
cism over this move and its scope for
privacy invasion, the
government may
consider other docu-
ments to complete
the verification.
These could include
ration card, driver’s
licence and passport.
The most stringent criticism over
this issue has come from West Bengal
Chief Minister Mamata Banerjee who
declared on October 25: “I am not going
to give my Aadhaar number to [mobile]
service providers and if that amounts to
getting my service snapped, so be it.”
She added: “This is an assault on priva-
cy. I understand if they ask Aadhaar for
banks. But why do they want it for
mobile connectivity? Do they want to
keep a tab on what I am talking over
cellphone? Are they trying to lend an
ear to private talks?”
T
to his bank account was mandatory
under the Prevention of Money
Laundering (Maintenance of Records)
Second Amendment Rules, 2017 pub-
lished in the official gazette on June 1,
2017. The RBI said that the anti-money
laundering rules have a statutory force
and banks have to implement them
without awaiting further instructions.
This was contrary to its earlier direc-
tive, where in a reply to an RTI applica-
tion the RBI had said that it had not
issued any ruling making it mandatory
“IamnotgoingtogivemyAadhaarnumber
to[mobile]serviceprovidersandifthat
amountstogettingmyservicesnapped,
sobeit.Thisisanassaultonprivacy.”
—MamataBanerjee,WestBengalCM
Supreme Court/ Aadhaar Card](https://image.slidesharecdn.com/indialegal06november2017singlepagessmallest-171028103337/85/India-Legal-06-November-2017-16-320.jpg)
![Courts/ CrPC Amendments
24 November 6, 2017
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
policemen and elected members of pan-
chayats were frequent victims of moti-
vated, malicious and false complaints of
corruption, custodial torture and other
illegalities. Investigation and prosecu-
tion of these charges were placing hur-
dles in government decision-making
and functioning. Singh has challenged
this as being ultra vires of the constitu-
tion, and going beyond the powers acc-
orded to the state legislature, as it inten-
ds to amend the Prevention of Corrup-
tion Act, 1988 “through the backdoor”.
This amendment creates a “logical
impossibility”, Singh contends. This is
because the magistrate must apply his
mind before granting sanction. How-
ever, the facts can come forth only after
an investigation is conducted. So how
can prior sanction be required before
the investigation is started, asks Singh.
Further, the amendment is discrimi-
natory because while it gives no protec-
tion to the common man, it places pub-
lic servants in a privileged category.
It also goes against the legal require-
ment of judicial supervision of an
investigation by curtailing the powers
of a magistrate.
AGAINST JUDICIAL PRECEDENTS
On May 16, 2014, a constitution bench
of the Supreme Court in the case of
Subramanian Swamy, while striking
down Section 6E of the Delhi Special
Police Act, held that any legal provision
which mandates the seeking of prior
sanction before conducting an investiga-
tion or prosecution militates against
the letter and spirit of the Prevention
of Corruption Act, and is therefore un-
constitutional. Section 6E was common-
ly known as the “Single Directive” and
stated that no bureaucrat holding the
rank of joint secretary and above, and
no MLA or MP could be proceeded
against without the nod of the govern-
ment or the respective competent
authority. The Court held that any law
which created a special category of
public servants treated differently and
granted more protection is illegal.
As per law, the police are bound to
register an FIR and investigate, and in
case it doesn’t, going by the constitution
bench ruling in the Lalita Kumari case
on November 12, 2013, it will be liable
to face both administrative and criminal
proceedings. Sections 156(3) and 190
further strengthen a citizen’s right—by
providing that a magistrate can direct
the police to lodge an FIR or conduct a
proper investigation.
The government has tried to give
legal heft to its decision by citing the
Supreme Court’s October 1, 2013, ruling
in the Anil Kumar vs Ayappa case,
which held that a magistrate could nei-
ther take cognisance of a complaint nor
direct an investigation without the gov-
ernment’s prior permission. But this rul-
ing by a bench of two judges now stands
overruled because of the Lalita Kumari
decision which was delivered a month
later by a larger bench. It is significant
that the Lalita Kumari judgment wasn’t
limited to the registration of an FIR; it
also held that a preliminary inquiry to
verify the veracity of the allegations is a
must in corruption cases.
This amendment “defeats the objec-
tive of our country to fight corruption. It
has accorded unprecedented feeling of
impunity to public servants who other-
wise are rarely apprehended for their
enormous acts of corruption,” Singh’s
petition contends. Also, the fact that the
Rajasthan ordinance was withdrawn
because of opposition from even BJP
MLAs could add weight to this petition.
“[Thisamendment]defeatstheobjective
ofourcountrytofightcorruption.Ithas
accordedunprecedentedimpunitytopub-
licservantswhoarerarelyapprehended.”
—AbhaSingh,petitioner
WINGS CLIPPED
The Bombay Police headquarters. The
Maharashtra government has weakened the
force by removing its power to initiate even a
preliminary inquiry against public servants
mahapolice.gov.in](https://image.slidesharecdn.com/indialegal06november2017singlepagessmallest-171028103337/85/India-Legal-06-November-2017-24-320.jpg)
![| INDIA LEGAL | November 6, 2017 45
N June 1950, Nehru wrote to Patel
and said that the ‘chief culprit’
against the smooth working of the
Nehru-Liaquat Pact was ‘Hindu
Mahasabha propaganda’, ‘the
Calcutta Press as well as Syama
Prasad Mookerjee’. Patel was disturbed
by the decisions of the Supreme Court
in the RomeshThapar and Brij Bhushan
cases. Patel thought that these decisions
now made it impossible for the govern-
ment to take any action against
Mookerjee and other more extreme per-
sons. Patel was of the opinion that the
Constituent Assembly had drafted very
idealistic provisions in the Constitution
which were not rooted in practical con-
siderations. In a letter to Nehru dated 3
July 1950, Patel wrote as follows:
‘I find no legal powers to deal with
either Press or men like Syama Prasad
Mookerjee. Before you left for
Indonesia, I drew your attention to the
Supreme Court decision in [the] Cross
Roads and Organiser cases. That knocks
the bottom out of most of our penal laws
for the control and regulation of the
Press. The views which they have
expressed in that judgment on the ques-
tion of sedition make it doubtful
whether we can do anything not only
about the speeches of Syama Prasad
Mookerjee but also those of the more
extremist type. As you say, we have
involved ourselves in so many legal and
constitutional difficulties that we do not
know how to overcome them. I sounded
a note of warning and caution when
these provisions were being debated in
the Drafting Committee, but then we
were led away by our idealistic exuber-
ance. We seldom paused to consider the
practical and administrative applica-
tions of the many constitutional provi-
sions and even their interrelation. My
own feeling is that very soon we shall
have to sit down and consider constitu-
tional amendments.’
The decision of the Patna High Court
in Shaila Bala Devi was delivered on 13
October 1950. Six days later, Nehru
wrote to Law Minister B.R. Ambedkar,
opining that the right to free speech
required amendment. Indeed,
Mookerjee went on to make several
more speeches bordering on calling for
war between India and Pakistan and for
their forcible reunification. In a speech
made in Parliament in August 1950, for
instance, Mookerjee suggested that the
Government of India must declare war
on Pakistan in order to protect
Pakistan’s Hindu minority, and that the
entire basis of partition had been
undone by Pakistan’s failure to protect
its Hindu minority. In September 1950,
Mookerjee said in Calcutta that the gov-
ernment’s ‘present policy of appease-
ment of Pakistan must cease’, and that
either economic sanctions must be
imposed or ‘military action’ must be
taken against it... In December 1950,
Mookerjee spoke at an RSS function
where he said that the partition of India
had ‘brought misery and humiliation to
millions’. In a speech in Parliament that
month, Mookerjee said that ‘we are sup-
posed to be at war with Pakistan in
Kashmir’, that India’s policy towards
Pakistan should be based on ‘complete
reciprocity’, and that if the ‘situation
worsens’, ‘India will have to depend . . .
on her arms and ammunitions or mili-
tary strength’. In March 1951, Mookerjee
said in the Lok Sabha that ‘Pakistan
wanted war’, and that if they still
wanted it, ‘let them have the taste
of that’.
In October 1951, at his presidential
address at the founding of the All India
Bharatiya Jana Sangh, he said:
We already know that the partition
of Bharat was a tragic folly. It has served
no purpose and has not helped to solve
any problem, economic, political or
communal. We believe in the goal of
reunited Bharat ...
On 12 May 1951, a Bill was intro-
duced in the provisional Parliament, to
amend certain articles of the
Constitution, including Article 19(2).46
The explanatory Statement of Objects
and Reasons to the Bill, signed by
Nehru himself, said that the right to free
speech in India ‘has been held by some
courts to be so comprehensive as not to
render a person culpable even if he
advocate’s murder and other crimes of
violence’, an obvious reference to Justice
Sarjoo Prasad’s judgment in ShailaBala
Devi. Things progressed at a hurried
On numerous occasions, Nehru
warned against allowing
untramelled speech, especially
hate speech
I
Wikimedia](https://image.slidesharecdn.com/indialegal06november2017singlepagessmallest-171028103337/85/India-Legal-06-November-2017-45-320.jpg)
![lives?’ asked Chandra.
‘How many of you remember,’ asked
Nehru, ‘or have you forgotten, three-
and-a-half years ago, in this city of Delhi
in the month of September 1947, in
Punjab, in that entire body of Western
Pakistan, what had happened?’ He con-
tinued, ‘anything that goes towards dis-
rupting the community, anything that
goes towards creating communal dis-
cord in this country will be met with the
heavy hand of this government. I am not
going to allow anything coming in the
way of the freedom and unity of India,’
he said, strongly. Even in February 1950,
Nehru had written a letter to Patel in
which he had said that there was ‘a con-
stant cry for retaliation and of vicarious
punishment of the Muslims of India,
because the Pakistanis punish Hindus’.
The ‘public order’ exception was
particularly geared towards restraining
hate speech or speech which incited
communal violence , especially against
the political backdrop of the Nehru-
Liaqat Pact.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
knew that ‘the Prime Minister holds
very strong views about it and he has
said a number of times that any such
movement or agitation is harmful to the
interests of the country and that he does
not like it.’ In fact, Mookerjee had con-
sulted senior advocate Narotam Singh
Bindra on the proposed constitutional
amendment. Bindra had informed
Mookerjee that the amendment would
debar Indians from ‘making any com-
ment with respect to the activities of
Pakistan in connection with the evacuee
property within its territories or with
respect to the policy of the Government
of India in this behalf’.
However, the official line was that the
‘friendly relations with foreign states’
exception was intended merely to pre-
vent defamation of foreign state heads.
This kind of restriction had previously
been imposed by the colonial govern-
ment. For example, it was imposed in
1915, during the First World War.
JUSTICE SARJOO PRASAD'S
JUDGMENT
It is certain that the decision of the
Patna High Court in Shaila Bala Devi,
particularly, the chilling passage of
Justice Sarjoo Prasad’s judgment, was
the immediate cause for introducing the
words ‘incitement to an offence’ into
Article 19(2). Apart from the Statement
of Objects and Reasons, Justice Prasad’s
judgment was spoken about by several
members in Parliament during the
debates on the First Amendment. Nehru
referred to the Patna High Court judg-
ment in two separate speeches. ‘The
House knows,’ he said, ‘that one of the
High Courts held that even murder or
like offences can be preached. Now it is
an extraordinary state of affairs if that
can be done.’ ‘Why is this amendment
brought?' Nehru asked himself in anoth-
er speech in support of the amendment
in Parliament, ‘I think it was the Bihar
High Court which said something to the
effect that preaching of murder is
allowed under this clause,’ he continued.
Home Minister C. Rajagopalachari also
referred to the Patna High Court judg-
ment in his speech in support of the Bill.
When Syama Prasad Mookerjee argued
against the Bill, some members inter-
rupted, saying, ‘Ask the High Courts . . .
A person can preach murder and still go
scot-free.’
HATE SPEECH
Many members in Parliament support-
ed the amendment because it enabled
the government to deal with hate
speech. ‘I am ashamed of the Press,’ said
Pandit Krishna Chandra Sharma. He
added: ‘Thousands of people have been
murdered on account of the false
reports published in the Press regarding
Hindu-Muslim riots.’ According to
Chandra, in 1947, a Delhi daily newspa-
per falsely reported that fifty Hindus
had been killed by Muslims in commu-
nal attacks, and as a consequence, thirty
Muslims were killed in retaliatory
attacks by Hindus on the following day.
'Who is responsible for these [thirty]
Republic of
Rhetoric: Free
Speech and the
Constitution of
India
Author:
Abhinav
Chandrachud
Published by:
Penguin Viking
Pages: 383
Price: `599
SP Mookerjee was bent upon
a war with Pakistan and repeatedly
pressed his demand for undoing
Partition in favour of an
“Akhand Bharat”
| INDIA LEGAL | November 6, 2017 47
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India Legal 06 November 2017
- 1. InvitationPrice `50 NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com Book Extract: Free Speech and the Constitution by Abhinav Chandrachud Aadhaar Linkage: Legal Challenges Mount November6, 2017 Theroyalfamilydisputeinvolvingassetsworth`40,000croreis headingforanoutofcourtsettlement ScindiavsScindia
- 3. T is time that those who profess to be hardline Hindus or the guardians of this great religious tradition stop scoring goals against themselves and their undoubtedly magnificent heritage. Nowhere is this better reflected than in the spectacle of UP Chief Minister Yogi Adityanath taking up a broom and doing what amounts to a penitent kar seva at the Taj Mahal, one of the acknowledged architec- tural wonders of the world. This PR exercise in damage control was not only avoidable but also an example of the consequence of the adage of cutting your nose to spite your face—pursuing revenge in a way that would damage oneself more than the object of one’s anger. The “object” in this case is the Muslim religion which, according to its political critics, suppressed and tyrannized the majority community of this country for centuries and therefore, its cultur- al, social and architectural achievements should not be celebrated or eulogized by any patriotic Indian. Its monuments should logically meet the fate of the Bamiyan Buddhas at the hands of the Taliban. Or so some BJP politicians like Sangeet Som, the UP state legislator from Sardhana, would have us believe. He recently described the Taj as a “blot” on Indian history, ostensibly because it symbolizes tyrannical Muslim dominance of Bharat and her original inhabitants. Never mind that the broom-wield- ing Yogi, following an international and domestic explosion of rage over this statement, has disowned this sentiment and asserted that Emperor Shah Jahan’s monument of love was built with the sweat and toil of ordinary Indians. The central point still remains that people like Adityanath have been hoisted by their own petard. Som is hardly alone in his views. Earlier, the official UP tourism pamphlet simply elim- inated the Taj from its pages. Then the fear- some Bajrang Dal-Sangh Parivar activist Vinay Katiyar claimed that the Taj was built on a former temple of Shiva—an argument similar to that of the demolished Babri Masjid-Ram Janmabhoomi and Banaras’s Gyanvapi imbroglios, which are entangled in legal webs. These sentiments actually reflect not only communal revanchism but also a deeper xenophobic Parivar mindset that urges India to reject “impure” influences on its otherwise pristine Aryan heritage. This is a more across- the-board phenomenon than most people suspect. Even the redoubtable Lal Krishan Advani succumbs to bouts of cultural chau- vinism. A couple of weeks ago, the former deputy prime minister suddenly said that freeing oneself of western influences alone would denote liberation: “Real freedom will come only when we free ourselves of the dom- ination of western education, western culture and western way of life.” The ironies flow fast and furious, leaving people wondering whether these utterances emanate from innate indoctrination or politi- cal expediency. Advani himself studied at the Roman Catholic St Patrick’s School in Karachi before Partition and has proudly attended Founder’s Day there. He has penned his major books in English, including his “Prison Diaries” during the Emergency. His daughter, Pratibha, is an example of an eclectic, multi- cultural Indian. Other iconic founders of the Sangh Parivar had strong foreign influences. Veer Savarkar studied law in England. Deen Dayal Upadhyaya, one of the founders of the Jana Sangh and an exponent of political Hindutva, obtained his Master’s from St John’s College ERASING THE BLOT Inderjit Badhwar Letter from the Editor I | INDIA LEGAL | November 6, 2017 3
- 4. in Agra—in English literature. Co-founder Syama Prasad Mookerjee graduated first class in English from Presidency College in Calcutta and then received his law degree from London’s prestigious Lincoln’s Inn and was admitted to the British Bar. Apart from this pantheon of political lead- ers, the Sangh Parivar claims inspiration for its Hindutva proselytizing from Sri Auro- bindo, Swami Ramakrishna Paramahansa and Swami Vivekananda. But have spokes- men for the Sangh truly studied their inspira- tional lives and works? Would this triumvi- rate, true embodiments of the eclectic spirit of Vedanta, have supported xenophobia and Sangeet Som’s views on the Taj and by impli- cation, the minority community? Aurobindo spent most of his young life in Europe where he learned Latin, German, French and English, before returning to India to become a revolutionary and then, a Vedantic seer. His colleague, “The Mother”, was a French woman, Mirra Alfassa. As Aurobindo famously noted: “India can best develop herself and serve humanity by being herself and following the law of her own nature. This does not mean, as some narrowly and blindly suppose, the rejec- tion of everything new that comes to us in the stream of Time or happens to have been first developed or powerfully expressed by the West. Such an attitude would be intellectually absurd, physically impossible, and above all unspiritual; true spirituality rejects no new light, no added means or materials of our human self-development. It means simply to keep our centre, our essential way of being, our inborn nature and assimilate to it all we receive, and evolve out of it all we do and create.” Vivekananda spent much of his life travel- ling and preaching in America and Europe where he learned French. His landmark Chicago speech, delivered in flawless English at the Parliament of Religions on September 11, 1893 began: “I am proud to belong to a religion which has taught the world tolerance and universal acceptance…We accept all religions as true…I fervently hope that the bell that tolled this morning in hour of this convention may be the death-knell of all fanaticism.” Noted American Vedantist John Schlenck wrote: “Vivekananda recognized, with great Letter from the Editor 4 November 6, 2017 Itistimethatthosewho professtobehardline Hindusstopscoring goalsagainst themselvesandtheir magnificentheritage. Nowhereisthisbetter reflectedthaninthe spectacleofUPChief MinisterYogiAdityanath takingupabroomand doingwhatamountstoa penitentkarseva atthe TajMahalinAgra.
- 5. pathos, that India had by and large failed to live up to its core spiritual values. He laboured strenuously not only to bring these values to the West but to goad and inspire Indians to live up to their own great ideals. And he recognized many good things in the West—not only science, technology, and material achievement, but other aspects that are not really materialistic—from which he believed India could and should learn.” And Vivekananda’s guru, the ethereal Ramakrishna said: “I have practiced all reli- gions—Hinduism, Islam, Christianity—and I have also followed the paths of the different Hindu sects. I have found that it is the same God toward whom all are directing their steps, though along different paths. You must try all beliefs and traverse all the different ways once. Wherever I look, I see men quar- relling in the name of religion—Hindus, Mohammedans, Brahmos, Vaishnavas, and the rest. But they never reflect that He who is called Krishna is also called Siva, and bears the name of the Primal Energy, Jesus, and Allah as well—the same Rama with a thou- sand names. A lake has several ghats. At one the Hindus take water in pitchers and call it ‘jal’; at another the Mussalmans take water in leather bags and call it ‘pani'. At a third the Christians call it ‘water’. Can we imagine that it is not ‘jal’, but only ‘pani’ or ‘water’? How ridiculous! The substance is One under differ- ent names, and everyone is seeking the same substance; only climate, temperament, and name create differences. Let each man follow his own path. If he sincerely and ardently wishes to know God, peace be unto him! He will surely realize Him.” And for all those who consider the Taj a “blot” on Indian history, here is Sister Nivedita, Vivekananda’s Scots-Irish disciple, quoting her Guru on Shah Jahan, (who had the Taj Mahal built): “Ah! He was the glory of his line! A feeling for, and discrimination of beauty that are unparalleled in history. And an artist himself! I have seen a manuscript illuminated by him, which is one of the art- treasures of India. What a genius!” | INDIA LEGAL | November 6, 2017 5 Apartfromapantheonof politicalleaders,the SanghParivarclaims inspirationforits Hindutvaproselytizing fromSriAurobindo, SwamiRamakrishna ParamahansaandSwami Vivekananda.Buthave spokesmenfortheSangh trulystudiedtheir inspirationallivesand works?Wouldthis triumvirate,true embodimentsofthe eclecticspiritof Vedanta,havesupported xenophobiaandSangeet Som’sviewsontheTaj? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
- 6. ContentsVOLUME. X ISSUE. 51 NOVEMBER6,2017 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: [email protected] website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Saurav Datta Contributing Editor Ramesh Menon Associate Editor Sucheta Dasgupta Deputy Editor Prabir Biswas Special Correspondent Chandrani Banerjee Staff Writer Usha Rani Das Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualizer Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Manager RS Tiwari Mobile No: 8377009652, Landline No: 0120-612-7900 email: [email protected] PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Editor (Content & Planning) Sujit Bhar Senior Content Writer Punit Mishra (Web) Technical Executive Anubhav Tyagi Clash of the Scindias This royal family’s dispute over property worth more than `40,000 crore may well be settled out of court. The final outcome may be near as the next hearing is on November 9 12 LEAD 6 November 6, 2017 To Link or Not to Link Although the RBI threw some light on the issue, confusion still reigns over whether or not the connecting of Aadhaar with bank accounts and mobile numbers is mandatory SUPREMECOURT 16 Protecting the Unworthy Amid controversy over a similar move in Rajasthan, the Bombay High Court hears a petition against Maharashtra’s CrPC amendment granting immunity to allegedly corrupt bureaucrats COURTS 22
- 7. REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:[email protected] Ringside............................8 Delhi Durbar......................9 Courts.............................10 National Briefs .........20, 25 International Briefs..........37 Media Watch ..................48 Satire ..............................50 Cover Design: ANTHONY LAWRENCE Cover Image : wowdelhi, hindi.oneindia, soulsteer Rights Unrecognised Though equality is enshrined in its constitution, Bangladesh’s Hindu women face discrimination when it comes to inheritance, marriage, alimony and divorce 38 | INDIA LEGAL | November 6, 2017 7 GLOBALTRENDS An excerpt from Abhinav Chandrachud’s Republic of Rhetoric. The work reveals how the enactment of the constitution made little difference to this right which remains locked in colonial continuities 44Unfree Speech Pattern of Abuse The Weinstein case exemplifies the double standard that defines 21st century America where the powerful think they are invincible ENTERTAINMENT 34 Fear to Friendship The growing warmth between New Delhi and Washington is part of a new Asian alliance being formed to counter Beijing’s increasing belligerence in South China Sea 41 BOOKEXTRACT Icon’s Acid Test Restricted as she is by a constitution that gives the army a big role, Aung San Suu Kyi must respond to the Rohingya crisis and now HUMANRIGHTS 30 Silence Isn’t Consent That’s what the Delhi High Court said in a landmark case, noting that the rape victim said she was being threatened by the accused 26 LEGALEYE IAF’s Roadrunner The spectacle of the Indian Air Force aircraft using the Lucknow- Agra highway as an air strip has a key strategic component 28 COLUMN
- 8. 8 November 6, 2017 “ RINGSIDE “I am openly challenging BJP, RSS and company that if they do not change their casteist thinking of hatred against Dalits, tribals, backwards, converted people and their leaders, I will also be forced to take the decision to leave Hindu religion and embrace Buddhism with crores of people who are victims of this system.” —BSP chief Mayawati, while speaking at a rally in Azamgarh, UP “One fine morning, Modiji said, ‘I am your Prime Minister, I don’t like currency notes of `500 and `1,000 denomination, I want to ban them at 12 in the night… Ha ha ha ha!’… And he did it, without consulting anybody.” —Congress vice-president Rahul Gandhi at a rally in Gandhinagar “I have not done any wrong, then why has the CCTV footage of a 5-star hotel been leaked?” —PAAS leader Hardik Patel, accus- ing the BJP and Gujarat government of snooping on his meetings with Congress leaders in Gujarat “(I have) conveyed (to) Karnataka govern- ment not to invite me to shameful event of glorifying a person known as brutal killer, wretched fanatic and mass rapist.” —Union minister Anant Kumar Hegde on being invited for the celebrations around Tipu Sultan Jayanti on November 10 “I just wanted to continue what I did this week and not do anything fancy.” —Shuttler Kidambi Srikanth, after winning the Denmark Open. He beat world No. 1 Viktor Axelsen on his way to the final “Talking about the casting couch in the Malayalam industry was like calling the sky blue.” —Actor Parvathy Thiruvoth, who will soon make her Bollywood debut with ‘Qarib Qarib Singlle’ “Populism and democracy are not to be confused. A confla- tion of mobs and democracy only leads to frequent vigi- lante violence, an undermin- ing of the press and judiciary, and a weakening of law- based governance. Would that be good for the country? This question has moved to India’s political centrestage.” —Ashutosh Varshney, Professor of International Studies and Social Sciences, Brown University, USA “What is important is that it (Taj Mahal) was built by the blood and sweat of India’s farmers and labourers.” —Uttar Pradesh Chief Minister Yogi Adityanath while recently addressing a public meeting in Agra, Uttar Pradesh
- 9. | INDIA LEGAL | November 6, 2017 9 An inside track of happenings in Lutyens’ Delhi Delhi Durbar FALL FROM GRACE? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Of all the conspiracy theories doing the rounds of the corri- dors of power, the most potent concerns Finance Minister Arun Jaitley and what seems to be an abrupt fall from grace. The first sign was the prime minister distancing his government from GST while campaigning in Gujarat. This was followed by Revenue Secretary Hasmukh Adhia’s public statement that GST needed an overhaul. It came immediately after Jaitley stout- ly defended the GST rollout during his recent trip to Washington.The final straw in the wind was the resignation of the Solicitor General of India, Ranjit Kumar, citing per- sonal reasons. Sources in the legal fraternity say that Kumar, who was once Jaitley’s assis- tant in the former’s legal prac- tice, was asked to quit. His resignation came barely two months after he was given an extension. His closeness to Jaitley was well-known as was the case with Mukul Rohatgi, the former Attorney General, who also “resigned” after being given an extension. The decision to appoint Dineshwar Sharma as central interlocutor to initiate a dialogue with all stakeholders in Jammu & Kashmir signals the failure of what is known in South Block as the “Doval Doctrine”. It was so named after National Security Adviser Ajit Doval rec- ommended a security hard line in J&K which encouraged the army to use tactics such as pellet guns. Chief Minister Mehbooba Mufti panicked after a series of militant attacks on PDP MLAs and workers. She flew to Delhi to meet Home Minister Rajnath Singh and demanded some sort of demonstration by the centre to temper its policy and reach out to the civilian population. What is little known is that Sharma, who retired as Intelli- gence Bureau chief, currently has his hands full, heading a peace talk process in the North- east. How much time he will be able to devote to Kashmir with its larger security implications, is a moot question. THE KASHMIR CONUNDRUM Congress president-in- waiting Rahul Gandhi was known for neither wit nor wisdom on the social media. His Twitter handle @OfficeOfRG elicited more yawns than retweets or likes. But over the past few months, it’s been light- ing up like a Christmas tree thanks to a burgeon- ing of followers who have been bowled over by his caustic knockout jabs aimed right at the BJP’s solar plexus. The BJP IT and troll social media team, with its massive pioneering lead in the game in which sarcastic one-upmanship can be a political vote multiplier, appears tongue-tied as Rahul’s firepower mounts by the day. With Rahul tweeting terms like “Shah-zada” to attack the BJP supremo’s son, Jay Amit Shah, regard- ing his controversial busi- ness dealings, dubbing GST as “Gabbar Singh Tax”, and virtually trolling Finance Minister Arun Jaitley’s recent defence of the economy with the comment, “May the farce be with you”, the BJP’s stock phrases of “pappoo”, “sicku- lar”, “presstitutes” and relat- ed scatological abuse are losing their edge. The change in the social media strategy is part of a broader new Congress nar- rative in which “pappoo” is being transformed into a leader with vision, depth and, above all, tolerance with the help of the electrify- ing new Twitter queen, Ramya Spandana, who replaced the tired Rahul Pandey. Much of this is also the handiwork of Rahul’s new inner circle consisting of the pedigreed Wharton MBA, Kanishka Singh, son of for- mer foreign secretary SK Singh, Deepender Singh Hooda of Haryana, Sachin Pilot, son of the illustrious Rajesh Pilot, Shashi Tharoor and, last but not least, the evergreen techie, Sam Pitroda, who commutes between the US and India to keep Rahul advised and informed. Rahul’s outer ring of advisors include the Gwalior royal, Jyotiraditya Scindia, Milind Deora, the on-again-off-again Amethi raja, Sanjay Singh, and MLC Dinesh Pratap Singh. For ready reckoner advice, Rahul turns to veterans Ahmed Patel and Digvijaya Singh, both court favourites of his mother. The new message is: “Stay on course, stay on message, no negative abuse, stick to the facts.” RAHUL’S TEAM
- 10. After its November 30, 2016, interim order, a three-judge bench of the apex court wondered why the Court had to pass such an order when the centre was competent to regulate the playing of the national anthem. Questioning its own order, the bench observed that the Court was inclined to do away with the mandatory directive, letting cinema halls take a call on the issue. Values are inculcated in various ways but not by mandates of courts, the Court said, hinting at recalling the previous order which made it a must for movie halls to play the anthem and people to stand to show respect to it. “Why do we have to wear patriotism on our sleeves all the time? Cinema halls are places of entertainment, after all. As the gov- ernment, you have the power. Why do you have to throw the burden to this court? Why is there a reservation on your part to do it?” Justice DY Chandrachud observed. He also remarked that next there could be objections to the kinds of clothes worn by people when they sing the anthem in movie halls. "Where do we draw the line on moral policing?” he asked. The Madras High Court has directed the Tamil Nadu chief secretary to ensure that the provisions of legislation on preven- tion of disfigurement are complied with to check unnecessary drawings on walls and ensure a clean atmosphere in all wards of the state. It has also passed a blanket ban on pictures of living people being depicted on posters and signboards as well as people who are spon- soring such banners. The Court directed that if any person is found flouting the rules, the police should take appropriate action. The order is to come into force with immediate effect. Courts 10 November 6, 2017 Madras HC bans posters depicting living people The Punjab and Haryana High Court issued a notice to the Haryana government on a petition seeking transfer of the investigation into the murder case of Haryana teenager Junaid Khan to the CBI. Junaid was stabbed to death on board a train in June this year. The petition, filed by Junaid’s father, Jalaluddin, states that so far the police have carried out a “seemingly casual and shoddy investigation” in the case and the probe has been “subverted in a calculated manner” to help the accused in the case. The petitioner has claimed that the inves- tigation was getting influenced by “some high-ups” since it began and the police delib- erately did not record the “correct state- ments” of the accused. High Court notice to govt in Junaid case Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] —Compiled by Saurav Datta Apex Court hints at modifying its order on anthem Gujarat’s reply sought by SC in Bilkis Bano case The Supreme Court has asked the Gujarat government to inform within four weeks whether cops convicted in the Bilkis Bano gang-rape case during the 2002 communal riots were reinstated in the police force. A three-judge bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandra- chud also asked the Gujarat government to inform whether any departmental action had been initiated or taken against the police officers who were convict- ed by the Bombay High Court in the case. The bench passed this order when Bilkis’ counsel alleged that all the six police officers who were convicted in the case had been given fresh postings in the state and it was not clear whether any departmental action had been initiated against them. The counsel for Gujarat, how- ever, informed the court that the police officers who had been given postings had served out the sentence imposed on them. The counsel said the state would file a proper reply in this regard.
- 12. Lead/ Scindia Family Feud 12 November 6, 2017 IKE many royal families, the Scindias too are waging a legal battle over vast proper- ties. The feud, which has been going on for 27 years and involves properties worth over `40,000 crore, is between the scion of the erstwhile Gwalior state, Jyotiraditya Scindia 46, and his three aunts. But, in a new development, the battle could well be settled out of court. Jyotiraditya, the Congress MP from Guna, had filed a case in a Gwalior court claiming to be the sole heir to the Scindia inheritance in 1990. His aunts— Usha Raje (settled in Nepal), Vasun- dhara Raje (Rajasthan CM) and Yashodhara Raje (senior cabinet minis- ter in Madhya Pradesh)—had contested the nephew’s claim, citing the will of their late mother, Vijaya Raje Scindia, Thedisputeoverpropertyworthmorethan `40,000croremaywellbesettled outofcourt.Thenexthearingofthe caseonNovember9willresultin thefinaloutcome By Rakesh Dixit in Bhopal Battle Royale L RICH LEGACY (Top) The sprawling Jai Vilas Palace that is under dispute; (right) Jyotiraditya Scindia, scion of the erstwhile Gwalior state bhaskar.com
- 13. | INDIA LEGAL | November 6, 2017 13 dated September 20, 1985. On October 6, 2017, Jyotiraditya filed an application in the Gwalior court of additional sessions judge Sachin Shar-ma, expressing his desire for an out-of-court settlement. It said: “In view of the seriousness of the case and its far reaching consequences, I am willing for disposal of the case through mutual consent.” Scindia’s application followed the judge’s suggestion during the last hear- ing on September 25 when he said that as all those involved in the case were well-educated people’s representatives, they were advised to reach an amicable out-of-court solution. The judge pointed out that under the Madhya Pradesh High Court’s guidelines, all the property disputes in the Scindia family pending in various courts in the country, includ- ing Bombay, Delhi, Pune, Jabalpur and Gwalior, are to be disposed of within a certain time-frame. Therefore, “the court expects both the parties to come up with a compromise formula as per the spirit of the Section 89 CPC,” he said. The Section pertains to settlement of disputes with mutual consent. Scindia’s lawyer submitted before the court that his client had agreed to an out-of-court settlement earlier too and deposited fees for the commissioner appointed by the court for this purpose. However, the commissioner had died during this period. Meanwhile, the lawyers of the aunts have urged the VYING FOR THEIR SHARE: (Clockwise from below) Usha Raje, who is based in Nepal; MP sports minister Yashodhara Raje; Rajasthan CM Vasundhara Raje At the time of Independence, the fami- ly owned shares in more than 100 companies, including 49 percent in Bombay Dyeing. The sprawling Jai Vilas Palace com- pound and other properties in Gwalior are estimated to be around `10,000 crore. There are also mansions such as Sakhya Vilas, Susera Kothi, Kuleth Kothi, Cottage Hill and Takenpore retreat. Jiwaji Rao Scindia, the ruler of Gwalior, was also bequeathed properties by some sardars, like plots, houses in Danaoli and Pichhadi Deodi and a hill-top retreat. He also had 15 zamindari villages outside Gwalior. Property elsewhere in the state is val- ued at `3,000 crore. In Shivpuri, the properties include Madhav Vilas Palace, Happy Vilas and George Castle. There is also Kaliadeh Palace in Ujjain. In Delhi, the family owned Gwalior House, a plot on Rajpur Road and Scindia Villa, whose value is estimated to be `7,000 crore. They also own Padma Vilas Palace in Pune, Scindia Ghat in Varanasi and Vithoba Temple, Sanquelim, in Goa. The family controls four inaam (gifted) villages and lands in 10 other villages in erstwhile Deccan. They also acquired properties such as the `1,200-crore Vasundhara building on Peddar Road in Mumbai. The flat in Samudra Mahal in Mumbai where Madhavrao often stayed is valued at `100 crore. Immensewealth Mohitkjain123/Wikimedia
- 14. tlement of the case because he does not want the BJP to dig up the dispute in the run-up to the assembly elections next year. He is, in all likelihood, to be projected as the Congress’s chief minis- terial candidate for this election. HUGE ASSETS The case, which began in 1990 in Gwa- lior court, had Jyotiraditya claiming sole ownership of his ancestors’ assets which included palaces and real estate in Gwalior, Pune, Mumbai and Delhi. His aunts challenged the nephew’s claim, saying that their mother, Vijaya Raje Scindia, had disinherited her estranged son and former Union minister, Madhavrao Scindia. She instead bequeathed “80 percent of the property to her daughters and 20 percent to a trust”, according to one of the two exe- Lead/ Scindia Family Feud 14 November 6, 2017 court to consider appointing another commissioner. They also sought a copy of Jyotiraditya’s application. During the next hearing, slated for November 9, the intention of the aunts will be clear regarding ending the battle through mutual consent. AUNT AND NEPHEW There are, meanwhile, signs of growing cordiality between Jyotiraditya and Yashodhara Raje, the MP sports minister. During the unveiling of a stat- ue of the late Madhavrao Scindia in Shivpuri, they shared the dais and exchanged greetings. Yashodhara represents Shivpuri, an assembly segment in Guna parliamen- tary constituency. She is said to be upset with MP Chief Minister Shivraj Singh Chouhan for his public jibes against the Scindias, stating that in connivance with the British, they had unleashed oppres- sion on the people. Yashodhara, 63, stands to gain the most if the dispute is settled through mutual agreement. Her eldest sister, Usha Raje, 74, is settled in Nepal and doesn’t take any interest in the case, while the other sister, Vasundhara Raje, 64, has inherited vast properties from the erstwhile Dholpur state that she was married into. She and her son, Dush- yant, are reportedly not keen on fighting the case. Yashodhara, who was married to a doctor in England, returned to India after her divorce and has her eyes set on the Scindia properties in Gwalior, particularly the Jai Vilas Palace. Unlike her sisters, Yashodhara got no vast for- tune from marriage. Jyotiraditya is keen on an early set- SIRMAUR In January 2011, the Himachal Pradesh High Court amicably settled a 23-year-old property case involv- ing the royal family. The dispute per- tained to the estate of Maharaja Amar Prakash who died in 1933. His eldest son, Maharaja Rajendra Prakash, succeeded him by the rule of primogeniture and impartibility of estate. After Indepen- dence, Sirmaur acceded to India. Following this, the properties held by Maharaja Rajendra Prakash were divided into two: state properties and private properties. He became the absolute owner of the private properties vested on him as the ruler of Sirmaur state. He died in 1964, after which his properties devolved upon his heirs, namely, his mother, Rajmata Mandalsa Devi, his wives, Durga Devi and Indira Devi, and his daughters, Raj Kumari Nalini Devi and Padmini Devi of Jaipur. GAEKWADS The Gaekwads’ feud was over ancestral property worth `20,000 crore. In October 2013, a Vadodara court accepted a memo- randum signed by 23 members of the Gaekwad family to end the 23-year-old fight. Ranjitsinh Gaekwad’s son, Samarjitsinh, retained the family’s land- mark property, Lakshmi Vilas Palace, and 600 acres around it, while his uncle, Sangramsinh, got Indumati Palace, a majority of the family’s residential proper- ties in Mumbai and Vadodara, and real estate owned under Alaukik Trading Company, including bungalows and Nazarbaug Palace. All members of the family, including Rajmata Shubhangini Raje, her sisters and daughters-in-law were present in the court. Lakshmi Vilas Palace (above) was built by Maharaja Sayajirao Gaekwad III (left) in 1890. It was then among the few Indian buildings fitted with amenities like elevators. Four times the size of London’s Buckingham Palace, the palace has a golf course and is the largest private property built till date. Its interiors are like a large European country house. After Independence, Pratapsinh, grandson of Sayajirao Gaekwad III, handed over the reins to his eldest son, Fatehsinhrao Gaekwad. Since Fatehsinhrao was unmarried, his younger brother, Ranjitsinh Pratapsinh, took over the throne. Years later, Pratapsinh’s youngest son, Sangramsinh, moved court for his right to the royal property. Other feuding royal families who reached a compromise on inheritance: It’saRoyalWorld…
- 15. | INDIA LEGAL | November 6, 2017 15 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] VijayaRajeScindiahaddisinheritedher estrangedsonandformerUnionminister, MadhavraoScindia.Herwillcouldnotbe executedasthemotherandsonwere embroiledinlawsuitsinvariouscourts overthedivisionoftheroyalassets. BITTER TIES (Right) Vijaya Raje Scindia; (far right) her estranged son, Madhavrao Scindia cutioners of the will, noted charted accountant S Gurumurthy. The other executioner was the late Rajmata’s con- fidant and her son’s bête noire, Sardar Sambhaji Angre. The will was made public by Angre after Vijaya Raje’s death in January 2001. However, it could not be executed as the mother and son were embroiled in lawsuits in various courts over the division of the royal assets. Madhavrao died in a plane crash in September 2001. With the death, the legal dispute ended. However, the heir to the only surviving Maratha dynasty, Jyotiraditya, is still locked in a legal battle with his aunts. Jyotiraditya’s contention is that his aunts cannot have any claim over the property of his grandfather, Jiwaji Rao Scindia, as per the rule of primogeni- ture. According to it, the oldest male child has the right to succeed to the estate of an ancestor to the exclusion of younger siblings and other relatives. Scindia has claimed that (his father) “late Madhavrao was recognised in terms of Article 366 (22) of the Constitution of India as the ruler of Gwalior in succession of his father late Jiwajirao Scindia with effect from 19 July 1961 as the sole successor of all properties movable or immovable held by the deceased maharaja”. The same rule applies regarding his claim as the sole heir to the Scindia inheritance as he was the only male child of the ruler of Gwalior. Even his son, Mahanaryaman, had filed an application on similar grounds to claim inheritance but the court rejected his application. With so much at stake, it is indeed a battle royale. Samarjitsinh Gaekwad, nephew of Sangramsinh noted: “We took the deci- sion to resolve the dispute for the better- ment of our future generation and for peace in our family.” JAIPUR The Supreme Court had to intervene in the Jaipur royal family dispute. The Court in September 2015 held the late Gayatri Devi’s grandchildren the heirs to the assets of her son, Jagat Singh, who died in 1997. Gayatri Devi’s stepsons and step-grandchildren had challenged the will that bequeathed shares in her son’s property to Devraj Singh (right) and Lalitya Kumari (above right)—chil- dren of Jagat Singh and his estranged wife, Princess Priyanandana Rangsit of Thailand. The Supreme Court said Gayatri Devi’s stepsons and step-grand- children could not claim their right to shares held earlier by the Maharani, the third wife of Sawai Man Singh II, the last ruling king of Jaipur. It directed rectification of company records to show Devraj and Lalitya as holders of stakes that Gayatri Devi held, allowing them the right to their father’s companies—Jai Mahal Hotels, Rambagh Palace Hotels, Sawai Madhopur Lodge and SMS Investment Corporation. The late queen’s share of property was estimated at around `1,000 crore in 2010. The grandchil- dren, who had been living in Thailand, hailed the verdict. Jagat Singh had willed his shares to his mother on June 23, 1996, eight months before he died. Later, Gayatri Devi executed a transfer deed and a will in the name of her grandchildren before she died on Septem- ber 29, 2009.
- 16. he confusion over whether Aadhaar details are needed for various services was partly cleared recently. While one petition dealt with its linking to bank accounts, the other was with regard to mobiles. With numerous reports claim- ing that the Aadhaar number was mandatory in banks and others saying it was illegal, the Reserve Bank of India on October 21 clarified its stance. It said that linking a person’s Aadhaar number Link Up with Banks 16 November 6, 2017 Thecardhasbecomeapointofcontroversyasconfusionreigns overconnectingitwithbankaccountsandmobilenumbers By Rajesh Kumar to link bank accounts with Aadhaar. In another petition, filed on October 12, Kalyani Menon requested the Supreme Court to declare Rule 2(b) of the Prevention of Money Laundering (Maintenance of Records) Second Am- endment Rules, 2017, ultra vires, uncon- stitutional, null and void and violating Articles 14, 19 and 21 of the Consti- tution. The petitioner also sought that in future, appli- cants not be coerced to sub- mit Aadhaar numbers. Meanwhile, the cen- tre has informed the apex court that it will extend till March 31, 2018, the deadline for linking Aadhaar for availing of benefits. PROPER VERIFICATION However, the confusion about whether to link Aadhaar numbers with mobile connections persists. Faced with criti- cism over this move and its scope for privacy invasion, the government may consider other docu- ments to complete the verification. These could include ration card, driver’s licence and passport. The most stringent criticism over this issue has come from West Bengal Chief Minister Mamata Banerjee who declared on October 25: “I am not going to give my Aadhaar number to [mobile] service providers and if that amounts to getting my service snapped, so be it.” She added: “This is an assault on priva- cy. I understand if they ask Aadhaar for banks. But why do they want it for mobile connectivity? Do they want to keep a tab on what I am talking over cellphone? Are they trying to lend an ear to private talks?” T to his bank account was mandatory under the Prevention of Money Laundering (Maintenance of Records) Second Amendment Rules, 2017 pub- lished in the official gazette on June 1, 2017. The RBI said that the anti-money laundering rules have a statutory force and banks have to implement them without awaiting further instructions. This was contrary to its earlier direc- tive, where in a reply to an RTI applica- tion the RBI had said that it had not issued any ruling making it mandatory “IamnotgoingtogivemyAadhaarnumber to[mobile]serviceprovidersandifthat amountstogettingmyservicesnapped, sobeit.Thisisanassaultonprivacy.” —MamataBanerjee,WestBengalCM Supreme Court/ Aadhaar Card
- 17. ber. The petitioner said DoT’s circular was completely illegal, arbitrary and mala fide as Aadhaar was not mandato- ry for authentication, obtaining a mobile connection or for re-verification of sub- scribers. The petitioner asked the Court to restrain DoT and other telecom oper- ators from collecting Aadhaar details of mobile users. He also wanted service providers to stop ads and SMSs and not mislead citizens by misinterpreting the SC order passed on February 6. After hearing this petition, the Court ordered: “In view of the factual position brought to our notice during the course of hearing, we are satisfied, that the prayers made in the writ petition have A petition was filed in the Supreme Court on this issue and the petitioner, advocate Raghav Tankha, said that the government had misinterpreted the rul- ing of the Court in Lokniti Foundation Vs Union of India, dated February 6, 2017, in this regard. The Court in this case had expressed the hope that a pro- cess for proper verification would be carried out as far as possible within a year. In this case, the petitioner had said that there should be a mobile phone subscriber verification scheme, where the identity of each subscriber and his address would be verified so that no fake or unverified subscribers misuse a mobile phone. Tankha said in his petition that on March 23, 2017, the Department of Telecommunications had issued a circu- lar which declared that the Supreme Court had directed it to make Aadhaar- based e-KYC mandatory for obtaining new mobile connections and for re-veri- fying existing mobile users. It made it mandatory for both prepaid and post- paid subscribers to connect their Aadhaar numbers with their mobile numbers and fixed February 6, 2018, as the last date for this. Due to the above circular, the petitioner claimed, Aadhaar data was getting leaked. Incidentally, Menon, too, requested the Court to declare DoT’s circular un- constitutional and void. Further, she pl- eaded that the mobile numbers of subs- cribers should not be made non-opera- tional if the linking had not taken place and future applicants should not be coe- rced to submit their Aadhaar numbers. PESTER POWER Tankha, meanwhile, said that following the DoT circular, telecom companies were sending out advertisements, e- mails and SMSs asking him to link his Aadhaar number with his mobile num- TheRBIonOct21saidlinkinga person’sUIDtohisaccountwas mandatoryunderanti-money launderingrules.Thisiscontrary toitsearlierstatement. | INDIA LEGAL | November 6, 2017 17 been substantially dealt with, and an effective process has been evolved to ensure identity verification, as well as, the addresses of all mobile phone sub- scribers for new subscribers. In the near future, and more particularly, within one year from today, a similar verifica- tion will be completed, in the case of existing subscribers. While compliment- ing the petitioner for filing the instant petition, we dispose of the same with the hope and expectation, that the undertaking given to this Court, will be taken seriously, and will be given effect to, as soon as possible.” This should put to rest the concerns of mobile sub- scribers for the time being. —The writer is an advocate in the Supreme Court NO SMOOTH SAILING A woman gives her biometric data to UIDAI; (below) the government has now decided to extend to March 31, 2018, the deadline for linking Aadhaar for availing of benefits Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
- 18. HILE I have the highest respect for the Supreme Court of India, I feel that the court might want to revisit a particular judgment. The reference (see Box) is a notification issued prior to the coming into force of the Criminal Pro- cedure Code, 1973, by virtue of Section 10 of the Criminal Law Amendment Act, 1932. The question that was raised was whether the said notification could be enforced even after the enactment of the new code. The apex court relied on Section 8 of the General Clauses Act (section detailed later) and overruled the deci- sion of the Goa bench of the Bombay High Court, arguing that the notifica- tion was saved by this section. That notification said that Section 506 (Part II) (see adjacent box) of the Indian Penal Code would be treated as Vetting a Verdict 18 November 6, 2017 WhytheSCmaywanttorevisititsjudgmentintheAiresRodriguesvsVishwajitPRane case W CRIMINAL INTIMIDATION It remains non-bailable in certain states, bailable in others My Space/ Aabad Ponda/ Remnants of an Old Law I n January, the Supreme Court bench of Justices AK Goel and U U Lalit had observed that despite the Criminal Procedure Code of 1898 having been repealed and replaced by CrPC 1973, a notification issued under Criminal Law Amendment Act of 1932 is still relevant and the notification with reference to the old Code of 1898 should be read as hav- ing been issued with reference to Code of Criminal Procedure, 1973. The Supreme Court had given this verdict in the Aires Rodrigues vs Vishwajit P Rane (2017 SCC OnLine SC 219) case. The verdict was specific to a notifica- tion. In that notification (June 27, 1973) Goa, which was then a Union Territory, had declared that Sections 186, 188,189, 228, 295-A, 298, 505 or 507 of the Indian Penal Code, when committed in the Union Territory of Goa, Daman and Diu, to be cognizable and Sections 188 or 506 of the IPC to be non-bailable when committed in the said territory. The Supreme Court was adjudicating on the judicial realm of the notification, because that notification was done with The notification and the old code non-bailable and cognizable in Goa. There are similar notifications issued in other parts of India, such as Greater Mumbai, before the enactment of the CrPC 1973. This judgment is important, because it touches on personal liberty. The very registration of an FIR and arrest depends on the interpretation of the situation. Section 8 of the General Clauses Act does apply to a situation of this kind and it keeps all prior notifications issued alive, even notifications under Section 10 of the Criminal Law Amendment Act, 1932 (see Box on Section 10). However, the question that remains is: Merely because the notification is saved does it prevail over the Criminal Procedure Code, 1973 which was subse- quently enacted? Section 8 of the general Clauses Act says: Construction of references to repealed enactments: “(1) Where this Act, or any Central Act or Regulation made after the com- mencement of this Act, repeals and re- enacts, with or without modification, any provision of a former enactment,
- 19. then references in any other enactment or in any instrument to the provision so repealed shall, unless a different inten- tion appears, be construed as references to the provision so re-enacted. (2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re- enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a dif- ferent intention appears, be construed as references to the provision so re- enacted.” In the discussion on Section 8 the Supreme Court said: "It is not necessary to refer to all the above judgments. View taken in support of the notification remaining valid and operative in Vinod Rao (supra) is, inter alia, as follows: “Therefore, applying the rule of con- struction laid down in Section 8 of the General Clauses Act, we must read in Section 10 of the Criminal Law Amendment Act, 1932. CrPC 1973 in place of the expression of “CrPC 1898”. When we so read it, it becomes clear that the notification issued under Section 10 with reference to CrPC 1898 should be read as having been issued with reference to the CrPC 1973. So far as the impugned notification is con- cerned, it also refers to the CrPC 1898. The Rule of construction laid down in Section 8 of the General Clauses Act, 1897 also requires us to construe refer- ence to the repealed enactment made in any “instrument” as reference to the repealing enactment or the new enact- ment which has been brought into force. The expression ‘instrument’ used in Section 8 of the General Clause Act, 1897, in our opinion, necessarily includes a notification such as the impugned notification. Therefore, applying the rule of construction laid down in Section 8 of the General Clauses Act, 1897, we read both in Section 10 of the Criminal Law Amendment Act, 1932 and in the impugned notification reference to CrPC, 1898, as a reference to CrPC, 1973. Therefore, the effect of the notifi- cation issued under Section 10 in 1937 is to modify the relevant provisions in the CrPC 1973. Therefore, the notification of 1937 as well as the subsequent notifica- tion issued in 1970 are relevant to the instant case.” Remember, Section 8 incorporates the clause: “unless a different intention appears”. The spirit of this section is in the wording, which means that if with respect to the same field a subsequent law is laid down which clearly expresses a different intention then the subse- quent law shall even as per Section 8 of the General Clauses Act prevail. Section 506 (Part II) of the CrPC 1973 has been made bailable and non- cognisable by virtue of the schedule to the said Code. The intention of the leg- islature in drafting the CrPC 1973 which came into force on January 25, 1974, in making the said Section 506 (Part II) of the CrPC 1973 bailable and non-cognizable clearly shows that a different intention appears as per Section 8 also. Section 5 of the CrPC 1973 further fortifies it. It says: “Nothing contained in this Code shall, in the absence of a specific provi- sion to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power con- ferred, or any special form of procedure prescribed, by any other law for the time being in force." The provisions of Section 10 of the Criminal Law Amendment Act, which gives the power to issue notifications applicable only to particular subjects and/or particular parts of India, is clear- ly a special law within the meaning of Sections 41 and 42 of the Indian Penal Code. Read Section 5 of the CrPC and Section 8 of the General Clauses Act together and you find that normally a special or local law or even a notification is saved, but the exception happens when there is a different intention and provision to the contrary. —The author is a lawyer at the Bombay HC on the criminal side | INDIA LEGAL | November 6, 2017 19 Verbatim 10. Power of State Government to make certain offences cognizable and non- bailable. (1) The State Government may, by notification in the Official Gazette, declare that any offence punishable under section 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code (45 of 1860 ), when committed in any area specified in the notification shall, notwithstand- ing anything contained in the Code of Criminal Procedure, 1898 (5 of 1898 ), be cognizable, and thereupon the Code of Criminal Procedure, 1898 (5 of 1898 ), shall, while such notification remains in force, be deemed to be amended accordingly. Section10inThe CriminalLaw AmendmentAct,1932 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] reference to the old code. Section 506 (Part II) This refers to criminal intimidation. As per the section, the punishment is imprisonment for a term which may extend to two years, or with fine, or with both. However, if that threat is of death or to cause grievous hurt, destruction of any property by fire, or to cause an offence punishable with death or impris- onment for life or to rob the chastity of a woman then the punishment could be imprisonment of up to seven years and fine. Normally one can get bail in all states of India, and this was an excep- tion, as per the notification.
- 20. 20 November 6, 2017 Briefs A2008 Malegaon bomb blast accused, Sudhakar Chaturvedi, has according to media sources, made some allegations against the Mumbai Anti-Terror Squad (ATS). Chaturvedi has alleged that the ATS had tried to falsely implicate inno- cent people. He has said that the ATS team tried to frame UP Chief Minister Yogi Adityanath and RSS chief Mohan Bhagwat in the case. Chaturvedi was recently released on bail after nine years and has said that the whole exercise of framing Hindu activists in the case was a move to appease the Muslims by the then Congress-NCP government in Maharashtra. Chaturvedi also claimed that bogus records were created against him. “Yogi, Bhagwat falsely framed in Malegaon blast case” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] —Compiled by Lilly Paul UGCtoreducepostsforSCs,STs,OBCs UP govt plans to merge Shia, Sunni Waqf Boards The latest data by the Union home min- istry reveals that, in the last three years, at least one juvenile was arrest- ed every four hours on charges of rape. Along with this, one juvenile is apprehended every three hours for assault- ing women with intent to outrage their mod- esty. The ministry data reveals that 2,054 juve- niles were arrested for rape and 1,627 were apprehended for assault between January 1 and December 31, 2016. The number of juve- niles held for rape has been consistent for the past three years where- as the number of those arrested for assault has increased. Adecision by the University Grants Commission, if implemented, will reduce SC, ST and OBC faculty seats in universities. The UGC has decided to opt for department- wise calculation of reservation of seats for SC, ST and OBC teach- ers, instead of the present criteria under which these are calculated based on the aggregate posts in a university. The UGC decision is based on an Allahabad High Court (right) verdict in April. The Court, while hearing a case on teachers’ recruitment in Banaras Hindu University, had ruled that reservation in teaching posts should be applied depart- ment-wise, thereby treating the department as an isolated unit and not part of the university. Cases against juveniles rising The Uttar Pradesh gov- ernment is thinking of forming a single “UP Muslim Waqf Board” by merging the two separate Sunni and Shia Waqf boards. The government plans to prevent the wastage of money that is incurred on appointment of separate office-bearers for both the waqf boards. Minister of Waqf Mohsin Raza alleged that since both the boards are charged with corruption, the government is already planning to dissolve them. The merged UP Muslim Waqf Board will comprise members of both Sunni and Shia communities and the chairman will be elect- ed from among them. Delhi police has arrest- ed two police person- nel and dismissed five oth- ers for letting a middle- man in the AIADMK- Election Commission bribery case to do shop- ping in Bengaluru. He was taken there for a court hearing. The middleman was arrested in April this year, along with AIADMK leader TTV Dinakaran. for allegedly trying to bribe an EC offi- cial for procuring the party’s “two leaves” symbol for the bypoll election to the RK Nagar Assembly seat. The accused policemen were suspended and an inquiry was conducted that proved them guilty. An FIR was registered under the Prevention of Corruption Act before dismissing them from service. 2 cops held, 5 dismissed in AIADMK graft case
- 22. Courts/ CrPC Amendments 22 November 6, 2017 N October 23, the BJP- led Vasundhara Raje gov- ernment in Rajasthan ta- bled The Criminal Laws (Rajasthan Amendment) Bill, 2017 in the assembly. The Bill, seeks to amend the Code of Criminal Procedure (CrPC) and created a furore. It said that prior sanction will be required by the police to commence investigations against public servants and judges for alleged corruption while discharging their official duties. After drawing flak from all quarters for “amending the law to protect the cor- rupt”, the government backtracked and sent the Bill to a Select Committee, effectively putting it in cold storage. However, a similar provision inserted in the criminal law by Maharashtra is now facing a constitutional challenge in court. Lawyer-activist Abha Singh has filed a PIL in Bombay High Court con- tending that the Devendra Fadnavis-led government’s latest amendment to the CrPC helps corrupt bureaucrats. Section 197 of the CrPC says that “if an offence is committed by a public servant while acting or purporting to act during dis- charge of his official duty, sanction may be necessary before the court takes the cognisance of the offence”. The police registers FIRs only for cognisable offences—serious offences such as murder, corruption, rape, and so on—where an arrest can be made with- out a warrant. As soon as an FIR is reg- istered, the police acquires the power to investigate. Once that is complete, the police prepares a chargesheet, challan or Shielding the Sinners EvenasanordinancetoamendtheCrPCinRajasthanwas deferred,aPILhasbeenfiledinBombayHighCourtagainstan amendmentthatseekstograntprotectiontocorruptbureaucrats By Saurav Datta O Photos: UNI
- 23. | INDIA LEGAL | November 6, 2017 23 final report recommending punishment and submits it to the magistrate. After looking at the chargesheet, if the magis- trate feels there is substantial material to start a trial against the accused, he will be said to have taken cognisance of the offence. However, instead of requir- ing government sanction only before the step of cognisance, the new ordinance disallows even investigation without prior approval. Before the Rajasthan Bill, there was no compulsion to have government san- ction first and only then start proceed- ings. It could be obtained anytime bef- ore the completion of the trial. As per the new Bill, the investigation itself req- uires sanction, raising doubts about whether FIRs will be registered at all in corruption cases against public servants in the state. In cases where the police refuse to register an FIR, a person can make a complaint to the superintendent of police or ask the magistrate to direct the police to investigate, according to the CrPC. However, the Rajasthan Bill adds the following to Sections 156(3) and 190(1) of the CrPC, weakening that power: “Provided that, under the afore- said sub-section, no magistrate shall order an investigation nor will any investigations be conducted against a person, who is or was a judge or a mag- istrate or a public servant, as defined under any law for the time being in force, in respect of the act done by them while acting or purporting to act in dis- charge of their official duties, except with previous sanction under Section 197 of the Code of Criminal Procedure, 1973.” This will weaken police and inves- tigating authorities by removing the powers vested in them by law to initiate even a preliminary inquiry. In August last year, the Maharashtra government amended Section 156(3) and 190 of the CrPC wherein no com- plaint can be filed against public offi- cials without valid sanction from a com- petent authority. It requires that prior sanction of the government be taken if a magistrate, on a private citizen’s com- plaint, orders an FIR to be lodged against a public servant. Both Sections empower the magistrate to order an investigation on receipt of a direct com- plaint from any person. Section 156 refers to a police officer’s power to investigate a cognisable case and says: (1) Any officer in charge of a police sta- tion may, without the order of a magis- trate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any magistrate empowered under Section 190 may order such an investi- gation as above-mentioned. Section 156(3) should be read with Section 190 (cognisance of offences by magistrates) and says: (1) Subject to the provisions of this chapter, any magistrate of the first class, and any magistrate of the second class specially empowered in this behalf under sub-section (2), may take cogni- sance of any offence— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed (2) The chief judicial magistrate may empower any magistrate of the second class to take cognisance under sub- section (1) of such offences as are within his competence to inquire into or try the case. Therefore, when a complaint is filed under Section 156(3) before a magis- trate empowered under Section 190, he can take cognisance of the case and instruct the police for further action. The Maharashtra government’s rat- ionale for bringing in the amendment was high-ranking civil servants, MLAs, TheamendmenttotheCrPCis discriminatorybecausewhileit givesnoprotectiontothe commonman,itplacespublic servantsinaprivilegedcategory. ON THE BACKFOOT: (Facing page) Rajasthan Congress chief Sachin Pilot protests against the Criminal Laws (Rajasthan Amendment) Bill, 2017; CM Vasundhara Raje has sent it to a Select Committee
- 24. Courts/ CrPC Amendments 24 November 6, 2017 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] policemen and elected members of pan- chayats were frequent victims of moti- vated, malicious and false complaints of corruption, custodial torture and other illegalities. Investigation and prosecu- tion of these charges were placing hur- dles in government decision-making and functioning. Singh has challenged this as being ultra vires of the constitu- tion, and going beyond the powers acc- orded to the state legislature, as it inten- ds to amend the Prevention of Corrup- tion Act, 1988 “through the backdoor”. This amendment creates a “logical impossibility”, Singh contends. This is because the magistrate must apply his mind before granting sanction. How- ever, the facts can come forth only after an investigation is conducted. So how can prior sanction be required before the investigation is started, asks Singh. Further, the amendment is discrimi- natory because while it gives no protec- tion to the common man, it places pub- lic servants in a privileged category. It also goes against the legal require- ment of judicial supervision of an investigation by curtailing the powers of a magistrate. AGAINST JUDICIAL PRECEDENTS On May 16, 2014, a constitution bench of the Supreme Court in the case of Subramanian Swamy, while striking down Section 6E of the Delhi Special Police Act, held that any legal provision which mandates the seeking of prior sanction before conducting an investiga- tion or prosecution militates against the letter and spirit of the Prevention of Corruption Act, and is therefore un- constitutional. Section 6E was common- ly known as the “Single Directive” and stated that no bureaucrat holding the rank of joint secretary and above, and no MLA or MP could be proceeded against without the nod of the govern- ment or the respective competent authority. The Court held that any law which created a special category of public servants treated differently and granted more protection is illegal. As per law, the police are bound to register an FIR and investigate, and in case it doesn’t, going by the constitution bench ruling in the Lalita Kumari case on November 12, 2013, it will be liable to face both administrative and criminal proceedings. Sections 156(3) and 190 further strengthen a citizen’s right—by providing that a magistrate can direct the police to lodge an FIR or conduct a proper investigation. The government has tried to give legal heft to its decision by citing the Supreme Court’s October 1, 2013, ruling in the Anil Kumar vs Ayappa case, which held that a magistrate could nei- ther take cognisance of a complaint nor direct an investigation without the gov- ernment’s prior permission. But this rul- ing by a bench of two judges now stands overruled because of the Lalita Kumari decision which was delivered a month later by a larger bench. It is significant that the Lalita Kumari judgment wasn’t limited to the registration of an FIR; it also held that a preliminary inquiry to verify the veracity of the allegations is a must in corruption cases. This amendment “defeats the objec- tive of our country to fight corruption. It has accorded unprecedented feeling of impunity to public servants who other- wise are rarely apprehended for their enormous acts of corruption,” Singh’s petition contends. Also, the fact that the Rajasthan ordinance was withdrawn because of opposition from even BJP MLAs could add weight to this petition. “[Thisamendment]defeatstheobjective ofourcountrytofightcorruption.Ithas accordedunprecedentedimpunitytopub- licservantswhoarerarelyapprehended.” —AbhaSingh,petitioner WINGS CLIPPED The Bombay Police headquarters. The Maharashtra government has weakened the force by removing its power to initiate even a preliminary inquiry against public servants mahapolice.gov.in
- 25. TheWire journalistssummoned The Ahmedabad Metropolitan Court has summoned the journalists of The Wire over an article against Jay Shah, son of BJP president Amit Shah. The court has summoned Rohini Singh, the reporter, and the edi- tors of the website to appear before it on November 13 in the criminal defamation case filed against them. The website had done a story alleging Shah’s firm had made a turnover of `80 crore from `50,000, which means the profits rose 16,000 times. The summons have been issued under Sections 500 and 114 of the Indian Penal Code and Section 202 of the Criminal Pro-cedure Code. Jay Shah claims that his response was not taken into consideration. | INDIA LEGAL | November 6, 2017 25 Briefs The Delhi High Court has dis- missed BJP leader Subramanian Swamy’s plea seeking a court-monitored SIT probe into the death of Congress MP Shashi Tharoor's wife, Sunanda Pushkar. The Court termed his PIL as a “textbook example of a political interest litigation”. A bench of Justices S Muralidhar and IS Mehta said the petition by Swamy cannot be entertained as a PIL. The bench said that from what was placed before the Court, it was unable to be persuaded that the probe being carried out by the SIT was botched up or under the influence of any party. The bench said: “This is a good example of a political interest litigation…” Pushkar case: Swamy PIL thrown out Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] —Compiled by Lilly Paul Chief Election Commissioner AK Joti has announced the dates for the Gujarat assembly polls. They will be conducted in two phases in December this year. Voting will take place for 89 seats on December 9 and in the remaining 93 constituencies on December 14. With the announcement of the dates, the model code of conduct has also come into effect. The results of the election will be declared on December 18, along with the results of the Himachal Pradesh elections. The latter state will go to the polls on November 9. The EC was heavily criticised by the Opposition parties for delaying the declaration of the election dates. Gujarat election dates announced Asessions court in Visnagar town of Mehsana district in Gujarat had issued an arrest war- rant against Patidar leaders Hardik Patel and Lalji Patel. The non-bailable warrants had been issued for not being present at the court hear- ings in a case related to alleged vandalism at a BJP MLA’s office. Hardik later appeared before the court and surrendered. He was consequently given bail. The case was filed against Hardik and 17 others for ransacking BJP MLA Rishikesh Patel’s office during a protest rally in July 2015. Hardik is spearheading an anti-BJP campaign in poll-bound Gujarat, with his reser- vation demands for Patels. The Enforcement Direct- orate (ED) has filed a charge-sheet against controver- sial meat exporter Moin Qureshi, alleging that he extorted money from several businessmen, ostensibly to get them special aid in their cases by using his influence with the CBI directors. The ED has alleged that Moin extorted money on behalf of former CBI directors AP Singh and Rajit Sinha. Qureshi is at present under judicial custody. He was arrested last year in August under the Prevention of Money Laundering Act for illegal foreign exchange dealings and tax evasions. ED files charge-sheet against meat exporter Moin Qureshi Bail for Hardik Patel
- 26. Legal Eye/ Consensual Sex Vs Rape 26 November 6, 2017 LTHOUGH the #MeToo hashtag has caught on and more and more women are retweeting it, it is debatable whether it will make a dent in the status of women in India. According to the National Crime Records Bureau, 2015, crimes against women increased by 43.2 percent from 2011, with one rape reported every two minutes. In an attempt to make a distinction between rape and consensual sex, the Delhi High Court in State (NCT Of Delhi) vs Munna @ Rikas & Anr deliv- ered a landmark judgment recently in which it observed that mere silence can- not be taken as proof of consensual sex as the victim had stated she was also being threatened by the accused. The High Court observed: “The defence taken by the accused that the prosecutrix had consensual sexual rela- tions with him which is pointed out from her silence about the incident, holds no ground as mere silence cannot be taken as proof of consensu- al sexual relations as she has also stated that she was being threatened by the accused. Thus, any act of sexual inter- course in the absence of con- sent would amount to an act of rape.” In this case, the victim said that she had left her home about five to six months ago in 2011 and come to Delhi. On reaching Old Delhi Railway Station, she met Munna and another man, Suman Kumar, and went along with them as they assured her that they would arrange a job for her. Thereafter, Munna took her to Panipat where he confined her in a flat for two-and-a-half months and raped her repeat- edly. He also made her con- sume intoxicating pills and threatened to kill her if she tried to escape. She was then taken to a flat in Noida rented by Kumar and confined there. On April 1, 2011, both the accused brought the victim to a flat in Shastri Park, Delhi, where she was again raped by Munna in the absence of Kumar. The next day, a heated altercation took place between Kumar and Munna when the former objected to the latter trying to rape her. Thereafter, the police was informed. The woman claimed that both of them wanted to sell her into prostitu- Defending Her Honour Inalandmarkcasethatwillhelprapevictims,theDelhiHighCourtsaidthatthe silenceofawomancannotbetakenasproofofconsensualsexualrelations By Vinay Vats A IN POLICE DRAGNET The path-breaking HC verdict that states that silence cannot be taken as proof of consensual sex will help to get justice for many rape victims
- 27. | INDIA LEGAL | November 6, 2017 27 tion. After the case was filed, a dispute arose regarding her age as her school records showed that she was 14-15 years, whereas a bone X-ray revealed that she was 16-18 years at the time of the incident. The bench relied on the State of NCT of Delhi vs Shiva & Ors which stated that if there are two possible opinions in a case, the one that tightens the case against the accused needs to be consid- ered. Hence, her age between 16-18 years was considered. The High Court upheld the decision of a trial court in 2015 to convict Munna and acquitted Kumar as he had not raped her though the prosecution tried to implicate him under common intention. BREACH OF PROMISE There have been other cases where rape and consensual sex have been confused either due to lack of evidence or mis- handling of it. In Tilak Raj vs State of Himachal Pradesh, a division bench of the Supreme Court held that consensual sex is not rape if it is not done on the pretext of marriage. However, in Akshay Manoj Jaisinghani vs The State of Maharashtra, the Bombay High Court while granting bail to the accused, observed that a man and woman may genuinely want to marry each other and establish sexual relations but if after sometime they find that they are not compatible, such breach of promise can- not be termed rape. Similarly, in X vs State NCT OF Delhi & Anr, the Delhi High Court observed that when a consensual rela- tionship does not work out, the woman uses law as a weapon to wreak ven- geance. In Krishan vs State of Haryana, a division bench of the Supreme Court held that there is no need to show injuries to establish a rape charge. It will sustain even if there are no injuries. In all these cases, the question left unanswered is: How to prove consent? The consensus is that if there is consent, there will be no injuries, whereas if there is no consent, then some kind of injury will be present on the victim. In many situations, it is difficult to prove if a rape actually took place or whether consensual sex ended up as rape. CONFUSING SCENARIO However, the Supreme Court in State of M.P. vs Madanlal, held that whatever be the circumstances, charges of rape or attempt to rape cannot be compromised even if the parties come to a settlement. It said: “Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of paint- ing it in clay. There cannot be a com- promise or settlement as it would be against her honour which matters the most. It is sacrosanct.” However, numerous judgments have shown that courts have no uniform practice in this regard and give diamet- rically opposite rulings in such cases. In Vikash Kumar @ Sonu vs The State & Anr., the Delhi High Court while relying on Gian Singh vs State of Punjab, observed that FIRs on rape charges cannot be quashed even if the accused marries the victim. On the other hand, the Gauhati High Court in Md. Jahirul Maulana @ Jahirul Islam vs State of Assam quashed the FIR of rape charges because the accused later mar- ried the victim and the parties came to a compromise. Similarly, the Punjab and Haryana High Court in Dalbir Singh & others vs State of Punjab & another quashed rape charges against all five accused in a case because one of them married the victim. And in Rahul vs State NCT of Delhi, the Delhi High Court reduced the sentence of the rapist of a 14-year-old because he married the victim. It is up to the judiciary to interpret laws in a manner that doesn’t prejudice anyone. However, in many cases, due to differences in interpretations of statutes, the outcome varies in different courts. These discrepancies need to be weeded out so that justice is delivered to the victims. The writer is a Supreme Court advocate Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] “Anyactofsexualintercoursein theabsenceofconsentwould amounttoanactofrape.” —DelhiHighCourtjudgmentin Munnacase SUPPORTING VICTIMS Dalit organisations staging a protest seeking a CBI inquiry into the rape and murder of a Dalit student in Thiruvananthapuram UNI
- 28. Highways to the Skies HEN military strate- gists explain the term National Air Power as being the sum total of all the flying assets of a nation, they overlook the use of national highways as runways for military use. Not many civilians would be aware that the use of highways as air strips for take-off and landing of aircraft has been in practice since the two World Wars when the bombing of airfields led to the Column Praful Bakshi / Defence/ Airstrips 28 November 6, 2017 search for alternative sites. In fact, when the Indian Air Force (IAF) demonstrat- ed this by landing a number of fighter and transport aircraft on the Lucknow- Agra Expressway, they brought out this important aspect in full view of the entire nation, and not just the crowds and VIPs who had gathered to watch the spectacle. Fighter aircraft like the Su- 30s and Mirages, along with transport aircraft like C-130s, showed how, in the absence of real runways, highways can be used safely for take-offs and landings of these fighting machines in times of emergencies like war when dedicated runways might not be available to them. India has a vast border over land and sea, running close to 10,000 km, and the present security scenario indicates a threat from all sides. There is a distinct possibility of Pakistan and China open- ing a combined front. This means India’s strategic assets will have to defend the western and north-western sector against Pakistan and the northern and north-eastern mountainous zone against China. There is also the joint threat of Chinese and Pakistan navies in Lastweek’sspectacleofIndianAirForceaircraftusingthe Lucknow-AgraExpresswayhasavitalstrategiccomponent W HIGHWAY BECOMES RUNWAY An Indian Air Force Mirage lands on the Lucknow-Agra Expressway UNI
- 29. | INDIA LEGAL | November 6, 2017 29 the Bay of Bengal, and from the Indian Ocean to the Arabian Sea. This massive military requirement brings up round-the-clock demand for the IAF to provide strike aircraft to destroy important targets in the enemy zone and tactical battle area, air defence fighters to provide cover to air and ground fighting assets as well as Vital Areas and Vital Points (Vas & VPs). However, the most important aspect is that IAF and military airfields would be under constant attack through ground attack fighters and surface-to-surface missiles which might lead to certain damage to these assets with the possibil- ity of their being unavailable to our fighter aircraft. T he worst case scenario is two- three fighter formations return- ing from their attack missions running critically low on fuel and capa- ble of only 15 minutes of flying, to find the home base runway is bombed out. The only option would be to find a place where the aircraft can be put down safe- ly, turned around, refuelled and rearmed for the next mission. This was very com- mon during the two World Wars when aircraft were light and slow, and could even land in open fields. With the advent of jet aircraft, this became diffi- cult as the need was for a stronger land- ing surface for high-speed, heavier jets. Sweden showed the world how roads and highways could be used for tactical purposes. Since then, a number of coun- tries have adopted this technique, including Singapore and Pakistan. Looking at a different wargame sce- nario, if an army battalion has to be moved from somewhere in Maharashtra or Madhya Pradesh, with no airport nearby, it would take days for them to reach the battle area. In this scenario, the IAF can land on pre-determined portions of national highways and use heavy transport aircraft like the C 130 to pick up and carry the force to its target area quickly. There is also the humani- tarian angle, wherein the air force may be asked to pick up victims or refugees from disaster zones to be conveyed to safer locations. Here aircraft like C-130s or AN-32s or even MI-17 heli- copters could land on pre-determined stretches of various highways to carry out the mission. Even in the case of counter-insur- gency operations like in Chhatt-isgarh, Jharkhand, MP or anywhere in the Maoist-dominated Red Zone this exer- cise can be carried out to induct para- military or security forces. Such opera- tions would, of course, be carried out with the help of mobile UAV operating teams to give the forces a real-time tac- tical picture. H owever, the strategic priority is of operating combat aircraft from highways. For this, other ground preparations need to be in place, like maintenance teams to repair damaged combat aircraft, refuelling and rearming teams, fuel dumps and ammo dumps. The present government has ear- marked a large number of highways all around the country for this purpose, mostly in the northern sector like Gujarat, Rajasthan, UP, Punjab, MP, Bihar and in the East. These are to be prepared by the respective state governments and kept ready to meet any eventuality. Apart from roads and highways, an important aspect is overlooked, and that is the availability of a large number of abandoned wartime air fields, which have long runways, in fairly good shape. For example, between Kolkata to Kharagpur and right up to Jamshedpur, there are close to 36 aban- doned air fields in Salua, Dudhkundi, Chakulia, Dalbhumgarh, Amardard Panagarh and Chaibasa, which could be reclaimed and put to good use. The most advantageous aspect of this exercise is not only cooperation between the three services using a common resource, but total civil-military syn- chronisation in providing military avia- tion its most critical requirement—a safe stretch of highway for all take-offs and landings during operations. The singular highway landing operation last week was largely passed off as a crowd-pleasing spectacle. What it was really meant to showcase was that the fighting assets of our country could be put to good use by proper civil- military cooperation, and strategic thinking and planning. PRIMED FOR ACTION Security personnel boarding a C-130 during the demonstration Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] UNI
- 30. Human Rights/ Rohingyas 30 November 6, 2017 RECENT article in The New Yorker titled “What Happened to Myanmar’s Human Rights Icon?” reflects the question haunting admirers of Aung San Suu Kyi. She was seen as the global upholder of universal human rights, but as Myanmar’s de facto presi- dent (officially state counsellor) she has failed to live up to their expectations over the Rohingya issue. More than half a million of these ethnic Muslims fled from Rakhine state in Myanmar to seek refuge in Bangladesh to escape military persecution. However, Suu Kyi not only took a month to make an official state- ment, but it lacked remorse at the hor- rendous human tragedy being enacted under her watch. The exodus of Rohingyas started when the army launched large-scale operations after 150 Rohingya insur- gents attacked 24 police posts and a mil- itary base, killing 12 security personnel on August 25, 2017. In the military operations that followed, the Arakan Rohingya Salvation Army lost 59 insur- gents, over 1,000 Rohingyas were rep- orted killed and many women raped. Human Rights Watch, citing satellite images, said 214 Rohingya villages were completely destroyed. Bangladesh’s foreign minister AH Mahmood Ali called it a “genocide” waged by Myanmarese troops, while UN Human Rights Commissioner Zeid Ra’ad al-Hussein called it “a textbook example of ethnic cleansing”. DECADES OF CONFLICT Even if the alleged army atrocities fail to fall under the UN’s definition of geno- cide, the army probably carried out “eth- nic cleansing”. The Rohingyas, consid- ered illegal Bengali settlers, are concen- trated in the northern Rakhine state. They have been involved in armed ethnic conflict since Myanmar’s inde- pendence in 1948. So the army probably Fall of an Icon ThoughtherewasglobalcondemnationofAungSanSuuKyi’s stiltedresponsetotherefugeecrisis,manyforgetthatshehas toworkwithintheconstraintsoftheconstitutionwhichgives thearmyapowerfulroletoplay By Colonel R Hariharan A UNI
- 31. ValleyofTears Most Rohingyas live in the Mayu river valley along the Bangladesh border and are isolated from the rest of the Rakhine state by the Arakan Yoma mountain range | INDIA LEGAL | November 6, 2017 31 hit upon ethnic cleansing as a “final solution” to rid the country of the un- wanted minority. There is no doubt that Suu Kyi’s stilt- ed response to the human tragedy has affected her image globally. Her charm and personal sacrifices during her long struggle to restore democracy against a ruthless military dictatorship drew admiration the world over. The western world which has been selectively waging “wars” for regime change in many authoritarian countries made her the poster girl for their “cause”. They put her on a pedestal and showered her with honours, including the Nobel Peace Prize. And Suu Kyi was modest to remind her admirers that “she was no saint of any kind”, but only a politician. She added, “politicians are politicians, but I do believe there are honest politi- cians and I aspire to do that”. So it is no wonder that when she became the de facto ruler of Myanmar, there were high expectations from her admirers both at home and abroad. They seemed to forget that in addition to being the head of a troubled state, she had a difficult role to play as leader of the ruling National League for Democracy and needed to retain her popular support. CONSTITUTIONAL LIMITATIONS However, Asian powers who had their ears to the ground were probably more realistic because Suu Kyi faces multiple problems in functioning as head of state. When the army decided to end its 50-year hold on power, it ensured that the constitution was rewritten by 2008 to give it a legitimate presence in legisla- ture and a role in governance. One-four- th of the seats in parliament are reserv- ed for the army. Also, the army calls the shots on internal and external secu- rity issues as the constitution has reserved the posts of three ministers— home, defence and border affairs—for the army. So Suu Kyi has some deft political tightrope walking to do and functions within the constitutional straitjacket. According to the constitution, she is not eligible to be elected president because she is married to a foreigner. So the position of state counsellor (above the president) was created extra-constitu- tionally to keep her at the top of the power structure. Myanmar has been facing an existen- tial struggle against approximately 16 ethnic insurgencies since independence. This has justified the army’s tight grip over three vital ministries dealing with national security. Unless the insurgency groups give up arms and join the politi- cal mainstream, the army cannot be weaned away from its stranglehold on power. So Suu Kyi’s top priority has been to negotiate permanent peace with the insurgent groups. She had FLEEING DEATH AND PERSECUTION Refugees arrive by boat from Myanmar to Shah Porir Dwip near Cox’s Bazar in Bangladesh; (facing page) Suu Kyi’s stilted response to the tragedy has hit her image Rakhine Chittagong M Y A N M A R BANGLADESH NORTH-EAST INDIA Mayu river valley Arakan Yoma UNI
- 32. SuuKyi’sactionsareconstrained bythearmywhichhascontrol overthreevitalministriesand retainstheoptiontoslapmartial lawandseizepoweragain. organised the 21st Century Panglong Conference, a peace meet, with insur- gent groups in August 2016. During the second meeting in May 2017, there was some breakthrough. However, four insurgent groups, particularly the Kachin Independence Army and Arakan Army (a Rakhine-based group), did not join the process. So, it continues to be a work in progress. Suu Kyi probably knows the Rohing- ya issue will be a test of her leadership skills. However, her actions will always be conditioned by the army’s control over the three vital ministries. Of course, the army still retains the option to slap martial law and seize power again. So she cannot take any action that could be construed as a provocation by the army, which is watching her with a wary eye. ROHINGYA IDENTITY CRISIS Though Suu Kyi is immensely popular at home, she has to watch out for any popular backlash in handling the Rohingya crisis. Most of the majority population, which is Buddhist, including those who condemn the army’s atrocities against the Rohingyas, do not accept them as part of the national main- stream. Unlike the majority Bamar community, Rohingyas are Muslims and racially different from the people of Myanmar—they are dark and speak a dialect similar to the Bengali spoken in Chittagong. Officially, the term “Rohingya” does not exist; they are referred to as Bengalis, indicating their illegal immi- grant status. They are not listed among the eight officially recognised indige- nous ethnic groups, though their pres- ence was tolerated till the army enacted the Burma Citizenship Law in 1982. It laid down 1823 (before the Anglo-Bur- mese war) as the cut-off year for recog- nition of eligibility for citizenship. This rendered a million-plus Rohingyas stat- eless. Unless the citizenship law is suit- ably amended, it will be difficult to ab- sorb them in the national mainstream. Geographically, their concentrations to the rest of the country. TERROR LINKS After partition of Myanmar, Rohingyas conscious of their distinct identity, wanted their areas of habitation to be merged with East Pakistan. With Pak- istan’s support, Rohingya Mujahideen extremists carried out sporadic attacks for the cause for about 10 years from 1950, without much success. In 1970- 80, a number of Islamist movements came up. However, the army ruthlessly crushed them. Among them, the Rohingya Solidarity Organisation, which was formed in 1982, developed contacts with Islamist extremist groups linked to the Al-Qaeda in Afghanistan, Pakistan and Bangladesh. are in the Mayu river valley along the Bangladesh border and isolated from the rest of Rakhine state by the Arakan Yoma mountain range. So Rohingya habitations have remained backward, untouched by what little development has taken place in the state. Ethnic and religious differences periodically spark Rohingya-Buddhist riots. In 2012 and 2013, these degener- ated into anti-Muslim riots and spread DIVIDED BY BIRTH (Left) Children of the Bamar community, the dominant ethnic group in Myanmar; (below) Bangladesh PM Sheikh Hasina Wajed meets Rohingya children 32 November 6, 2017 Human Rights/ Rohingyas
- 33. These terrorist links added virulence to the Rohingya insurgency in 2016-17. On October 9, 2016, Rohingya terrorists in large numbers attacked three Myanmar police posts located along the Bangladesh border. They killed nine officials and looted firearms from the posts. Two days later, they again attacked and killed three soldiers. International Crisis Group (ICG), a well-known think-tank, in a report on Rohingya militancy last December said it had interviewed members of Harakah al-Yakin (Faith Movement), a Rohingya militant group in Bangladesh, and they had taken responsibility for the attacks. According to the ICG report, the group had links with Rohingya expatriates in Saudi Arabia and Pakistan. It also added that Afghan and Pakistani fighters had secretly trained groups of Rohingya vil- lagers in Rakhine state. Indian intelli- gence agencies have also accessed simi- lar information, identifying different groups and their leaders. The Rohingya issue had always been a source of friction between Myanmar and Bangladesh. However, Sheikh Hasina Wajed’s Awami League govern- ment has been carrying out intense operations to eradicate jihadi terrorism infesting the country. So Bangladesh is extremely wary of giving asylum to Rohingya refugees flooding the country lest jihadi groups also infiltrate the country. However, due to popular sym- pathy for the plight of fellow Muslims, Bangladesh is accommodating them within its limited resources with help from international agencies. INDIA’S ROLE India also does not want to allow the Rohingyas to cross over, fearing infiltra- tion by terror groups in the sensitive North-east region. Politically, it is untenable for New Delhi to give refuge to them because the ruling BJP won the Assam elections with a promise to cleanse the state of lakhs of illegal Bangladeshi immigrants. However, as a humanitarian gesture, India is assisting Bangladesh in taking care of over eight lakh Rohingyas there and has allocated `500 crore to Dhaka for this purpose. India also organised 7,000 tons of foodgrain and other basic essentials such as oil and salt for the refugees. The EU, along with Kuwait, is convening a donor conference to collect donations for them. The Pope will also be visiting Bangladesh and Myanmar in November to provide relief to them. Meanwhile, Suu Kyi had appointed an 11-member advisory commission headed by former UN Secretary General Kofi Annan in August 2016 to help resolve the Rohingya issue. The com- mission’s recommendations for rap- prochement include adopting a holistic approach rather than just a military one, dialogue between both communities and creating a solution for citizenship for the Rohingyas. However, Suu Kyi has to create a cli- mate of confidence for the refugees to return home. To begin with, a credible investigation of the alleged atrocities by the army has to be carried out. Rohingyas living in IDP (internally dis- placed person) camps in Myanmar have to be extended all assistance to rebuild their shattered lives in their villages. This is the minimum that can be done to trigger the peace process. Can Suu Kyi pass this acid test? One thing is clear—it will be a long haul before this tragedy is over. —The writer is a military intelligence specialist on South Asia, associated with the Chennai Centre for China Studies and the International Law and Strategic Studies Institute. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] BRING THEM HOME: (Left) Former UN secre- tary-general Kofi Annan is heading a team appointed by Suu Kyi to resolve the crisis; (below) Myanmar Chief of Staff Lt Gen Mya Tun Oo briefs the press | INDIA LEGAL | November 6, 2017 33 UNI
- 34. with beautiful starlets and famous actresses. He’s been dismissed from his eponymous company and expelled from the Directors Guild in Hollywood, among other lost responsibilities and credibility. Authorities in various cities are exploring criminal charges. His reputation and business crash can be compared to the sud- denness of a plane hit- ting a moun- tain in the middle of the night. Often, the post-acci- dent probe reveals people didn’t talk about faults they knew existed with the aircraft. In this case, people he assaulted and those who enabled or knew about his behaviour, kept quiet, believing in Weinstein’s ability to make or break careers in the entertainment industry. He has dozens of credits as producer or executive producer in more than 30 years in the movie business, including the Academy Award-winning Shakespeare in Love and Tony Award theatricals for The Producers and Billy Elliot The Musical. Many hits, popular globally, carried his name as executive Entertainment/ Harvey Weinstein Fallout 34 November 6, 2017 N the movie, Spiderman’s Uncle Ben says: “With great power comes great responsibility.” In the movie industries of Hollywood and Bollywood (and elsewhere), it has been understood for decades that with great power comes great access to whatever you desire: often sex, drugs or both. Given his pugnacious manner and appearance, Harvey Weinstein, the pow- erful Hollywood producer, was always more feared than loved in Hollywood. Fear has turned to loathing over allega- tions of his predatory sexual behaviour producer, meaning he rounded up the movie’s financing and put his reputation behind the script and cast. Is it remarkable that Weinstein’s crash for behaviour is comparable to Donald Trump? The then presidential candidate said about assaulting women The Power of Predators TheWeinsteincaseexemplifiesthedoublestandard thatdefines21stcenturyAmericawherethepowerful thinktheyareinvincible By Kenneth Tiven in Washington I “WhiledealingwithHarvey,Ifoundit comicalhowhardhetriedtoget Aishwaryaalone... Heaskedmetoleavethemeeting numeroustimesandIpolitely declined.” —SimoneSheffield,formeragentof AishwaryaRaiBachchan FALL FROM GRACE Harvey Weinstein Wikipedia
- 35. | INDIA LEGAL | November 6, 2017 35 (videotape Access Hollywood): “If you’re pow- erful, they let you do it.” Trump denied the sexual harassment claims of nearly a dozen women but was elected president. This exemplifies the dou- ble standards that seem to define 21st century America. Double standards go back centuries; the rich and pow- erful think they are entitled to have things work in their favour. Today, when people consider contradictory infor- mation, they only agree with what they like. Many of us call this delusional or “an alternative reality”. President Trump calls it “fake news”. Allegations about Trump came from women who were not famous, so they could be ignored as delusional women. Weinstein’s accusers are famous in their own right and believed credible. Gwyneth Paltrow and Angelina Jolie are among more than 30 women who have gone public. British actress Emma Thompson said: “I don’t think you can describe him as a sex addict, he’s a predator. That’s different. He’s at the top of, as it were the ladder of, a system of harassment and belittlement and bullying and interference. This has been part of our world, women’s world, since time immemorial. Several men who are stars and players in Hollywood, such as Quentin Tarantino, have admitted they knew that Harvey preyed on female actors.” A former agent for Aishwarya Rai Bachchan recently explained how she kept Weinstein away from the Indian star. Priyanka Chopra, who has successfully transitioned from Bollywood to Hollywood, said: “There is not just ‘a Harvey Weinstein’ in Hollywood, there are many. It happens everywhere. It is not about sex, it is about power.” Young Academy Award-winning actress Lupita Nyong’o, from Kenya, wrote in The New York Times: “I had shelved my experience with Harvey far in the recesses of my mind, joining in the conspiracy of silence that has allowed this predator to prowl for so many years. I had felt very much alone when these things happened, and I had blamed myself for a lot of it, quite like many of the other women who have shared their stories.” From a historical perspective, Bollywood producers and stars, starting with Raj Kapoor, Dev Anand and GP Sippy too had their dalliances with top stars and unknown starlets. How do we know that Hugh Hefner's Bunnies suc- cumbed not to consensual sex but to Editorialenforcementofadouble standardformalebehaviourwas possibleintheoldgeneralmedia, butnottodaywhen...anything whichsellscanfindanaudience. STARS WHO SPOKE OUT (Above) Gwyneth Paltrow; (left) Angelina Jolie UNI
- 36. Entertainment/ Harvey Weinstein Fallout 36 November 6, 2017 power? In sports, in music and many fields, we have numerous examples of bad male behaviour such as from Tiger Woods and Mick Jagger. W hat has changed since the whispers about President John F Kennedy’s proclivity for a quick bonk with anyone who caught his eye? None of that ever ended up in mainstream print media or on television programmes. However, Gloria Steinem, Betty Friedan, and Susan Brownmiller wrote about sex as an instrument of male power, opening up a discussion that is on-going. Editorial enforcement of a double standard for male behaviour was possi- ble in the old general media, but not today when there are many choices for information and so many writers that anything which sells can find an audience. British tabloids realised a cen- tury ago that sex sells and it remains true today. Political beliefs are reflected in per- ceptions of reality. According to a HuffPost/YouGov poll, the vast majority of Clinton voters, 74 percent, and Trump voters, 66 percent, think that Weinstein’s accusers are credible. When asked about similar accusations against the president, 8 percent of Trump voters agree on credibility of the accusations. A 51 percent majority of Trump vot- ers say outright that they don’t think the accusations against the president are credible. Weinstein has been a substan- tial donor to liberal causes and politics. There is a form of “buyer’s remorse”, of second-guessing how society, and the media especially, gave Trump a “pass” on his behaviour and all the allegations about his misogynistic tendencies toward women. This remorse has ener- gised people, pushing the news media to dig deeper, to be more considerate of the difference between verifiable truth and lies or misrepresentations. Despite puritanical leanings, when it comes to sex and sin in the public sphere, conservatives in America are now willing to combine revulsion with beliefs they worship. The Weinstein- Trump moral is that misogynistic behav- iour toward women is not always a career-ending proposition. Anyone can still grow up to be president. —The writer has worked in senior positions at The Washington Post, NBC,ABC and CNN and also consults for several Indian channels Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] CELEB LICENCE? (Clockwise from far left) Golfer Tiger Woods and music icon Mick Jagger stand out for bad male behaviour; Priyanka Chopra says “there is not just ‘a Harvey Weinstein’ in Hollywood, there are many” Bollywoodproducersandstars, startingwithRajKapoor,Dev AnandandGPSippytoohadtheir dallianceswithtopstarsand unknownstarlets. UNI UNI
- 37. | INDIA LEGAL | November 6, 2017 37 Dubbed the “Czech Trump” by the media, owner of a multi-billion chemicals, food and media empire Andrej Babiš is set to become the Czech Republic's next prime minister after his ANO party won the country’s general election with a significant margin. Showing populist leanings similar to the US president, Babiš has opposed further European Union inte- gration and adoption of the euro and taken a hard line on accepting refug- ees. The ANO movement won 78 of parliament’s 200 seats in the election held on October 21 while the conser- vative Civic Democrats finished sec- ond. Babiš will now require at least two other coalition partners to form government. However, the Civic Democrats have ruled out an alliance. Outgoing coalition partners Social Democrats and the Christian Demo- crats, too, have done so citing fraud allegations against the party’s former finance minister. The parliament will next convene on November 20. “Czech Trump” Babiš to be PM Briefs Over five million Italians voted over- whelmingly in two referendums on granting autonomy to the rich, northern regions of Lombardy and Veneto. In Lombardy, 98 percent supported autono- my, while in Veneto, 95 percent did the same. However, the turnout in both regions was relatively modest. The administrations there staged the referen- dums to give themselves a popular man- date to open negotiations with Rome on further devolution of powers and tax revenues. Both are dominated by the Northern League, which once advocated secession. But Matteo Salvini, who has led the party since 2013, is widely report- ed to be building a right-wing populist movement with national appeal, and many think the vote is merely a bid to raise its profile ahead of 2018’s general election. The Japanese prime minister’s gamble in September to call early elections has paid off handsomely. His centre-right Liberal Democratic Party and coalition partner, Buddhist-backed Komeito, have won 313 seats out of the 465 contested seats in the lower house of parlia- ment, easily maintaining two-thirds majority required for legislation. LDP alone has 284 seats. This is the 63- year-old’s fifth win since he regained power in 2012. It means he will secure another three-year term as PM next September. Abe campaigned for a strong response to North Korea’s nuclear threat as well as constitution- al and economic reform. —Compiled by Sucheta Dasgupta The Islamabad Accountability Court has issued a bailable arrest warrant against ousted Pakistani Prime Minister Nawaz Sharif in two cases of corruption resulting from the Panama papers leak. This comes a week after the court indicted Sharif (67) and his daughter Maryam as well as son- in-law Muhammad Safdar for not declar- ing four expensive apartments in London to tax authorities. The Sharifs have been residing at the Avenfield flats since early 1990s but claimed they became owners only in 2006 when they bought it from a consortium owned by a Qatari prince in which Sharif’s son Hussain was a partner. Sharif was disqualified by the Supreme Court as prime minister for non-disclosure of income status on July 28. Arrest warrant against Nawaz Sharif US tightens rules for H1B visa renewal Big win for Shinzo Abe North Italy votes for autonomy In a new directive in line with the its goal to protect US workers, the Trump administration has made the renewal of non-immigrant visas, such as H-1B and L1, tougher. Rescinding its over-13-year-old policy, the US Citizenship and Immigration Services has said that the burden of proof in establishing eligibility is, at all times, on the petitioner. The previous memorandum of April 23, 2004, had appeared to place this burden on this federal agency, it said. This means that while earlier a person once found eligible for a work visa would usually be considered for its extension, they would now need to prove eligibility all over again. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
- 38. S heikh Mujibur Rahman, in his first speech to the nation after his return to liberated Bangladesh in 1972 from Pakistan, recognised the disproportionate suffering of the Hindu population during the Bangladesh Liberation War. On a visit to Kolkata in 1972, Mujib visited refugee camps that were still hosting several million Bangladeshi Hindus and appealed to them to return to his country and help in rebuilding it. Despite the public commitment of ESPITE the exodus of Hindus from Bangladesh following Partition, a large proportion of them still live in this country. While wealthy Hindus who migrated, mostly to Assam, West Bengal and Tripura, lost their land and assets, poor and middle-class Hindus who were left behind became targets of discrimi- nation. And this continues even today. The last Census in 2011 showed that Hindus comprised 8.96 percent of the population in Bangladesh. The total population currently is 16 crores. And according to a study by Pew Research Center, Hindus will constitute seven percent of the population of Bangladesh by 2050, while Muslims will form 92 percent. Interestingly, after India and Nepal, it is Bangladesh that has a large number of Hindus. Culturally, Bangladeshi Hindus are similar to their ilk in West Bengal, Assam and Tripura and follow the same customs. Dr Abul Barkat of Dhaka University told India Legal: “Through a combina- tion of mass exodus and genocide dur- ing the 1971 war, there was a loss of around 20 million Bangladeshi Hindus. This was one of the largest displace- ments of population based on ethnic or religious identity in recent history. Most Mujibur Rahman’sappeal At the Receiving End 38 November 6, 2017 Thoughsecularismandequalityareenshrinedinthecountry’s constitution,womenofthisminoritycommunityfacenegative discriminationininheritance,marriageanddivorce By Prakash Bhandari in Dhaka D Global Trends/ Bangladesh/ Hindu Women RIGHTS NOT RECOGNISED A Hindu woman takes a Mahashtami dip in the Brahmaputra. Bangladeshi Hindus share roots and customs with their Indian counterparts UNI
- 39. | INDIA LEGAL | November 6, 2017 39 of the Hindu-owned businesses were permanently destroyed.” LEGAL DIFFICULTIES Though secularism and equality of all citizens has been enshrined in the Bangladeshi constitution, there isn’t much evidence of it. The issues irking Hindus relate to women’s rights, dowry, poverty and unemployment. Bangladesh has a secular legal system except in mat- ters relating to inheritance, marriage and divorce, where there is no single law. While Muslims and Christians can divorce according to their own laws, there is no right to divorce for Hindus, especially women. Hindu women face legal difficulties and various types of gender-based discrimination. They can- not divorce and remarriage is impossi- ble. Strangely, a Hindu man can marry again without any legal difficulties. Dr Meghna Guhathakurta, a member of the Bangladesh Human Rights Commission, said: “Our research through random sampling in seven divi- sions of Bangladesh divided equally between the urban and rural areas found that more than 52 percent of women were victims of torture. Without a Marriage Registration Act, they can- not seek legal redressal. A majority of them want this Act and legalising of Hindu divorces. This would bring them a lot of relief.” Lawyer Nina Goswami said: “At present, when a Hindu man walks out on a marriage, the wife cannot sue him for alimony or maintenance. Lack of marriage papers makes it almost impos- sible to prove that they were married.” Many Hindu men also keep multiple wives knowing that they cannot be prosecuted, she added. Many have also dumped their wives, leading them to take up unwanted jobs and lead penury- stricken lives. However, the government, she said, is not keen on angering Hindu men, who generally vote for the ruling Awami League. “Unfortunately, these women don’t exist for the government. For our politicians, the Hindu commu- nity is a big vote-bank made up of only males.” GOVERNMENT STAND However, the government rejected such criticism and said it was hamstrung Mujib and his government to establishing secularism and the rights of non-Muslims, two aspects of his rule remain controver- sial as they relate to the conditions of Hindus in Bangladesh. The first was his refusal to return Ramna Kali Mandir, historically the most important temple in Dhaka, to the reli- gious body that owned it. This centuries- old temple was demolished by the Pakistani army during the Bangladesh Liberation War and around 100 devotees were murdered. Under the provisions of the Enemy Property Act, it was deter- mined that ownership of the property could not be established as there were no surviving members to claim inherited rights, and the land was handed over to Dhaka Club, a club of the elite. Second, state-authorised confiscation of Hindu-owned property under the provi- sions of the Enemy Property Act was ram- pant during Mujib’s rule. His Awami League was the largest beneficiary of Hindu property transfer. With almost eight million displaced Hindus and more than 2,00,000 Hindu victims of genocide, it was difficult to establish direct owner- ship of property within legally speci- fied time-frames. This caused much bitterness among Bangladeshi Hindus, given the public stance of the regime’s commitment to secu- larism and communal harmony. Largely because of these and other factors, the Hindu population of Bangladesh started to decline through migration. UNDERVALUED LOT Women celebrate Janmashtami in Dhaka. For the ruling Awami League, Hindu men are a big vote-bank that must not be alienated UNI
- 40. 40 November 6, 2017 by hardline Hindu activists who oppose changes in the law. The Hindus are considered educated and enlightened, but hardliners have opposed even mar- riage registration. This lack of rights for Hindu women in Bangladesh was recorded by the US government’s International Religious Freedom Report (IRFR) for 2016. It examined marriage laws governing reli- gious groups in various countries and said that polygamy is permitted for Hindu men in Bangladesh. “Under Hindu (civil) law, men may have multi- ple wives, but there are officially no options for divorce,” the report said. “Buddhists are covered under Hindu law and divorced Hindus and Buddhists may not legally remarry.” Hindu women are also prohibited from inheriting property under their civil laws, the report said. Several organisations, including Manusher Jonno Foundation (MJF), Ain o Salish Kendra, Bangladesh Mahila Parishad and Banchte Shekha have criti- cised the government for continuing to uphold these laws, IRFR said. According to Sara Hussain, a leading lawyer, the draft civil code by the Bangladesh Mahila Parishad should be taken as the basis for judicial reforms. This code has suggested new laws for Hindu women. PAKISTAN EXAMPLE Unlike Bangladesh, in Pakistan, the Sindh Provincial Assembly passed a law for registration of marriages for Hindus there “as long as both parties are 18 or older, give consent to the marriage, and are not within a degree of familial rela- tionship prohibited by Hindu custom”. Hussain said: “It’s painful to see that while other SAARC countries, including Pakistan, have taken up the issue of the civil code and even passed the Hindu Marriage Bill 2017, Bangladesh has lagged behind. Former Pakistani Prime Minister Nawaz Sharif had said it is a consolidated law for solemnisation of marriages by Hindu families residing in Pakistan. They are as patriotic as any other community and it is the responsi- bility of the state to provide equal pro- tection to them, a statement from his office had said. Our prime minister, Sheikh Hasina, should also think like Sharif and give Bangladesh’s Hindu women a law that would protect them.” Time will tell if there has been a change in this regard. TRAUMA OF UPHEAVAL Bangladeshi Hindus trudge to India during the 1971 war; despite huge migration, they still comprise close to nine percent of the population “Throughacombinationofmassexodus andgenocideduringthe1971war,there wasalossofaround20million BangladeshiHindus.Thiswasoneofthe largestdisplacementsofpopulation basedonethnicorreligiousidentityin recenthistory.MostoftheHindu-owned businesseswerepermanentlydestroyed.” —DrAbulBarkat,professor,departmentof economics,UniversityofDhaka “Ourresearchthroughrandomsampling insevendivisionsofBangladeshdivided equallybetweentheurbanandrural areasfoundthatmorethan52percent ofwomenwerevictimsoftorture. WithoutaMarriageRegistrationAct, theycannotseeklegalredressal.A majorityofthemwantthisAct.” —DrMeghnaGuhathakurta,member, BangladeshHumanRightsCommission Global Trends/ Bangladesh/ Hindu Women Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] www.defencebd.com
- 41. NDO-US ties are poised to take a decisive turn under the Trump administration. Secretary of State Rex Tillerson, on his maiden visit to India recently, declared US intention to help India attain its full potential and be an ally of Washing- ton and Tokyo to maintain strategic bal- ance in Asia. China’s growing economic and military power is a concern shared by all three countries. Global Trends/ Indo-US Ties | INDIA LEGAL | November 6, 2017 41 Fearing the Dragon ThegrowingwarmthbetweenNewDelhiandWashingtonispartofastrategic allianceinAsiaandanoffshootofChina’sincreasingbelligerenceintheSouth ChinaSeaandontheDoklamfront By Seema Guha I “The US supports India’s emergence as a leading power and will continue to contribute to Indian capabilities to pro- vide security throughout the region. In this regard, we are able and willing to provide advanced technologies for its military modernisation efforts…,” Tiller- son said at a joint news conference with External Affairs Minister Sushma Swaraj. All this is being done with an eye on China. With the US ready to make India a partner in the new defence architecture of the region, strategic alliances in Asia are changing. NEW AXIS The US, Japan and India are the new trilateral partners. They are likely to be joined by Australia in a revival of the quadrilateral favoured by Japanese Prime Minister Shinzo Abe during his Photos: UNI BULLYING TACTICS A marine guard ship from Vietnam (right in the picture) near a Chinese ship in the South China Sea
- 42. Global Trends/ Indo-US Ties 42 November 6, 2017 first short stint in the post. Chinese pressure led to the move fizzling out. But now, under Narendra Modi, Donald Trump and Abe, and with China’s bel- ligerence, the move is in place. A statement released by the Prime Minister’s Office after Tillerson called on Modi noted: “They affirmed that a strengthened Indo-US partnership is not just of mutual benefit for both coun- tries, but has significant positive impact on the prospects for regional and global stability and prosperity.’’ The new alliances taking shape in Asia could not have been envisaged a few decades ago. India and the US were in different camps during the Cold War era. New Delhi was with the former Soviet Union, a major defence supplier and a country which remained a trust- worthy partner. During the Bangladesh war of libera- tion, Moscow had sided with Delhi, while Washington had ordered its Seventh Fleet to sail towards the Bay of Bengal in a show of support for Pak- istan. When the Soviet army was in Afghanistan, India was behind Russia. In an attempt to get Russia out of Afghanistan, Pakistan was used by the US to arm, train and fund the Muja- hideen. The CIA and Pakistan’s spy agency, the ISI, worked hand in hand to keep supply lines moving for the Mujahideen. Again, when Henry Kissinger made his secret trip to Beijing, he flew to China from Pakistan. All this is now changing. China and Pakistan remain close, but now Russia’s Vladimir Putin also has one foot in that camp. The US, always suspicious of India because of its close- ness to Moscow, is now willing to embrace it. Washington, as Tillerson said, is ready to provide technology to India, a nation it had earlier put under nuclear sanctions. UNPREDICTABLE TRUMP Though supporters of Indo-US ties are overjoyed at this new turn in relations, there are some who caution against over-optimism. There have been several false starts earlier. With an unpredictable man like Trump at the helm, nobody can foretell what the future holds. Trump is visiting China in November. Much will depend on how that visit pans out. He is capable of changing policy or slowing down on the India angle if it suits his purpose. Also, it is not clear whether Tillerson himself will remain in the government. In the topsy-turvy administration that Trump runs, policies can be overturned in a jiffy. Former foreign secretary Shyam Saran told India Legal: “India-US rela- tions are no doubt moving in a positive direction as the fundamentals are rooted in a convergence of interests. There is an element of unpredictability because of the nature of the Trump administration. But overall, it is shaping up well.” The strategy to change the US-India equation by balancing China’s growing economic and military might with that of another big Asian power was first unfolded by President George Bush. His decision to sign the India-US nuclear deal and push it through the Nuclear Suppliers Group was with an eye to building strong, durable relations with ChinaandPakistanremainclose, butnowRussia’sVladimirPutin alsohasonefootinthatcamp. TheUS,suspiciousofIndia,is nowwillingtoembraceit. AN EYE FOR AN EYE? Chinese and Indian civilians during a face-off along the Line of Actual Control in Demchok village in Ladakh. China’s growing military and economic power is a concern for India
- 43. | INDIA LEGAL | November 6, 2017 43 Delhi. That shift in US policy towards India was a game-changer. However, the UPA government under Manmohan Singh was not in any hurry to sign all the four foundation defence agreements that would have put Delhi firmly in the US camp. In fact, when President Barack Obama’s defence secretary, Leon Panetta, was in Delhi in 2012, he said that Washington regarded India as the “lynchpin’’ in its Asia strategy, which was aimed at countering China’s muscle-flexing in the Asia- Pacific region. Former defence minister AK Antony, always suspicious of US motives, held back and delayed every decision that would have resulted in a more robust defence relation with Washing-ton. The Logistics Exchange Agreement, the first of the three defence pacts, was signed by India only in 2016. Antony had contin- ued to drag his feet over it. LET’S TANGO But Modi, a more pragmatic leader, is not forever looking over his shoulder to gauge the Chinese reaction. The Modi- Trump meeting in Washington earlier this year set the ground rules for engagement. India is willing to play ball with the US and how. The Trump administration is now publicly declaring its decision to embrace India. This was done by Trump himself when he unveiled his new Afghanistan and South Asia policy in August. Tillerson expanded on the theme in a seminal speech he gave in Washington before arriving in India and this is in line with America’s new approach. Tillerson said that China did not always play by international rules, especially in the South China Sea, while India had always scrupulously followed the guidelines. Washington under Trump is not at all afraid of loudly proclaiming its concerns. With Beijing wooing India’s immedi- ate neighbours and investing in a string of ports in the Indian Ocean, the fear of being encircled by China is very real for policymakers here. Besides this, Beijing’s recent moves on the Doklam front and the concern that all this could lead to more serious flare-ups persists. China’s military is much better equipped than India and its border infrastructure is well-developed. In such a situation, having closer defence and strategic relations with the US will help. China has been eyeing the growth in these ties with some concern. Pakistan is also worried about New Delhi’s presence in Afghanistan, its backyard. The recent statement of Nikki Haley, US ambassa- dor to the UN, that India’s presence in Afghanistan will help the US keep an eye on Pakistan’s moves, has not pleased Islamabad. However, policymakers in Washington also know that without Pakistan’s help it would be difficult to work out a peace deal with the Taliban. Except for hotheads in India, the rest of the world realises that a stable Pakistan is good for the region and the world. Tillerson at his news conference made it clear that Pakistan has to crack down on all terror groups, not just for Afghanistan or the US or India, but for its own stability and progress. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] “India-USrelationsarenodoubt movinginapositivedirectionasthe fundamentalsarerootedina convergenceofinterests.Thereisan elementofunpredictabilitybecauseof thenatureoftheTrumpadministration. Butoverall,itisshapingupwell.” --ShyamSaran,formerforeignsecretary NEW ERA OF FRIENDSHIP US Secretary of State Rex Tillerson with PM Narendra Modi during his recent visit to India
- 44. Nehru and Free Speech 44 November 6, 2017 Book Extract/ Republic of Rhetoric: Free Speech and the Constitution of India In “Republic of Rhetoric-Free Speech and the Constitution of India”, Harvard-educated Abhinav Chandrachud’s key thesis is that a closer look at the history and evolu- tion of the Constitution of India reveals that its enactment made little or no substantive difference to the right to free speech in India. Rather, it continues to remain imprisoned in the colonial continuities. To substantiate this thesis, Abhinav, who is the grand- son of former CJI YV Chandrachud and son of sitting Supreme Court judge Dr DY Chandrachud, places emphasis on the historical context of the legal status of free speech in India, including a detailed treatment of events before 1947. He suggests that colonial-era restrictions on free speech like sedition, obscenity, contempt of court, defamation and hate speech were not merely retained but also strengthened in post-independence India. Through an analysis of deci- sions of the Supreme Court and vari- ous high courts, this Bombay High Court lawyer demonstrates how law- makers’ desire to protect the totems of a newly independent India resulted in stronger fetters being imposed. Extracts:
- 45. | INDIA LEGAL | November 6, 2017 45 N June 1950, Nehru wrote to Patel and said that the ‘chief culprit’ against the smooth working of the Nehru-Liaquat Pact was ‘Hindu Mahasabha propaganda’, ‘the Calcutta Press as well as Syama Prasad Mookerjee’. Patel was disturbed by the decisions of the Supreme Court in the RomeshThapar and Brij Bhushan cases. Patel thought that these decisions now made it impossible for the govern- ment to take any action against Mookerjee and other more extreme per- sons. Patel was of the opinion that the Constituent Assembly had drafted very idealistic provisions in the Constitution which were not rooted in practical con- siderations. In a letter to Nehru dated 3 July 1950, Patel wrote as follows: ‘I find no legal powers to deal with either Press or men like Syama Prasad Mookerjee. Before you left for Indonesia, I drew your attention to the Supreme Court decision in [the] Cross Roads and Organiser cases. That knocks the bottom out of most of our penal laws for the control and regulation of the Press. The views which they have expressed in that judgment on the ques- tion of sedition make it doubtful whether we can do anything not only about the speeches of Syama Prasad Mookerjee but also those of the more extremist type. As you say, we have involved ourselves in so many legal and constitutional difficulties that we do not know how to overcome them. I sounded a note of warning and caution when these provisions were being debated in the Drafting Committee, but then we were led away by our idealistic exuber- ance. We seldom paused to consider the practical and administrative applica- tions of the many constitutional provi- sions and even their interrelation. My own feeling is that very soon we shall have to sit down and consider constitu- tional amendments.’ The decision of the Patna High Court in Shaila Bala Devi was delivered on 13 October 1950. Six days later, Nehru wrote to Law Minister B.R. Ambedkar, opining that the right to free speech required amendment. Indeed, Mookerjee went on to make several more speeches bordering on calling for war between India and Pakistan and for their forcible reunification. In a speech made in Parliament in August 1950, for instance, Mookerjee suggested that the Government of India must declare war on Pakistan in order to protect Pakistan’s Hindu minority, and that the entire basis of partition had been undone by Pakistan’s failure to protect its Hindu minority. In September 1950, Mookerjee said in Calcutta that the gov- ernment’s ‘present policy of appease- ment of Pakistan must cease’, and that either economic sanctions must be imposed or ‘military action’ must be taken against it... In December 1950, Mookerjee spoke at an RSS function where he said that the partition of India had ‘brought misery and humiliation to millions’. In a speech in Parliament that month, Mookerjee said that ‘we are sup- posed to be at war with Pakistan in Kashmir’, that India’s policy towards Pakistan should be based on ‘complete reciprocity’, and that if the ‘situation worsens’, ‘India will have to depend . . . on her arms and ammunitions or mili- tary strength’. In March 1951, Mookerjee said in the Lok Sabha that ‘Pakistan wanted war’, and that if they still wanted it, ‘let them have the taste of that’. In October 1951, at his presidential address at the founding of the All India Bharatiya Jana Sangh, he said: We already know that the partition of Bharat was a tragic folly. It has served no purpose and has not helped to solve any problem, economic, political or communal. We believe in the goal of reunited Bharat ... On 12 May 1951, a Bill was intro- duced in the provisional Parliament, to amend certain articles of the Constitution, including Article 19(2).46 The explanatory Statement of Objects and Reasons to the Bill, signed by Nehru himself, said that the right to free speech in India ‘has been held by some courts to be so comprehensive as not to render a person culpable even if he advocate’s murder and other crimes of violence’, an obvious reference to Justice Sarjoo Prasad’s judgment in ShailaBala Devi. Things progressed at a hurried On numerous occasions, Nehru warned against allowing untramelled speech, especially hate speech I Wikimedia
- 46. pace thereafter. Nehru issued a circular, instructing members of his party to be present in Parliament, despite the scorching heat of Delhi in May. On 16 May 1951, Nehru moved a motion to refer the Bill to a Select Committee in Parliament. The Select Committee was to consist of twenty-one members, including K.T. Shah, Sardar Hukam Singh, Naziruddin Ahmad, B.R. Ambedkar and R.K. Sidhva, who we have seen; played a part in the drafting of the right to free speech under the Constitution. It must be noted, in all fairness and to the government’s credit, that Syama Prasad Mookerjee, whose speeches were being viewed with suspi- cion by the government, was also made a member of the Select Committee. However, now Nehru himself, who had earlier taken almost no role in drafting Article 19(2) of the Constitution, was also a member of the Select Committee. The amendment to the right to free speech was finally passed in June 1951, with 228 members voting in favour of it and only nineteen voting against it. Though this was not the official line, the restriction relating to ‘friendly rela- tions with foreign States’ seems to have been thus motivated by an aim to restrict speech calling for India to go to war with Pakistan and to annul the par- tition. This House will realise,’ said Nehru in his speech in Parliament in support of the First Amendment, ‘that at this particular moment of a very deli- cate international situation and tension, we cannot easily take the risk when something said and done, not an odd thing said and done, but something said and done repeatedly and continuously, may lead in regard to foreign countries to the gravest consequences, may lead to our relations with that foreign country deteriorating rapidly.’ He was obviously referring to Pakistan. In another speech in Parliament, Nehru added, ‘If an individ- ual does something which might result in war, it is a very serious matter. No State, in the name of freedom, can sub- mit to actions which may result in wholesale war, and destruction.’ In yet another speech, Nehru defended the ‘friendly relations with foreign States’ exception in the following terms: ...suppose you do something which seems to us to incite to war, do you think we ought to remain quiet and await the war to come? ...We cannot imperil the safety of the whole nation in the name of some fancied freedom which puts an end to all freedom ... we are living in a very delicate state of affairs in this world, when words, whether oral or written, count; they make a difference for the good or for the bad. A bad word said out of place may create a grave situation, as it often does. Syama Prasad Mookerjee, in his speech in Parliament against the First Amendment, said that partition was a mistake and that it should be undone some day, even by force. He said that he did not know whether the ‘friendly rela- tions with foreign states’ exception relat- ed to ‘the demand which is made in cer- tain quarters about a possible reunion of India and Pakistan’. He said that he Patel informed Nehru of the constitutional hurdles to curtailing Syama Prasad Mookerjee’s belligerent utterances JusticeSarjooPrasad‘sjudge- mentintheShailaBalaDevi casewhichallowedeven unre- strictedincitementtomurder, becameathorninNehru’sside. Herepeatedlycriticisedit. Book Extract/ Republic of Rhetoric: Free Speech and the Constitution of India 46 November 6, 2017 Wikimedia
- 47. lives?’ asked Chandra. ‘How many of you remember,’ asked Nehru, ‘or have you forgotten, three- and-a-half years ago, in this city of Delhi in the month of September 1947, in Punjab, in that entire body of Western Pakistan, what had happened?’ He con- tinued, ‘anything that goes towards dis- rupting the community, anything that goes towards creating communal dis- cord in this country will be met with the heavy hand of this government. I am not going to allow anything coming in the way of the freedom and unity of India,’ he said, strongly. Even in February 1950, Nehru had written a letter to Patel in which he had said that there was ‘a con- stant cry for retaliation and of vicarious punishment of the Muslims of India, because the Pakistanis punish Hindus’. The ‘public order’ exception was particularly geared towards restraining hate speech or speech which incited communal violence , especially against the political backdrop of the Nehru- Liaqat Pact. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] knew that ‘the Prime Minister holds very strong views about it and he has said a number of times that any such movement or agitation is harmful to the interests of the country and that he does not like it.’ In fact, Mookerjee had con- sulted senior advocate Narotam Singh Bindra on the proposed constitutional amendment. Bindra had informed Mookerjee that the amendment would debar Indians from ‘making any com- ment with respect to the activities of Pakistan in connection with the evacuee property within its territories or with respect to the policy of the Government of India in this behalf’. However, the official line was that the ‘friendly relations with foreign states’ exception was intended merely to pre- vent defamation of foreign state heads. This kind of restriction had previously been imposed by the colonial govern- ment. For example, it was imposed in 1915, during the First World War. JUSTICE SARJOO PRASAD'S JUDGMENT It is certain that the decision of the Patna High Court in Shaila Bala Devi, particularly, the chilling passage of Justice Sarjoo Prasad’s judgment, was the immediate cause for introducing the words ‘incitement to an offence’ into Article 19(2). Apart from the Statement of Objects and Reasons, Justice Prasad’s judgment was spoken about by several members in Parliament during the debates on the First Amendment. Nehru referred to the Patna High Court judg- ment in two separate speeches. ‘The House knows,’ he said, ‘that one of the High Courts held that even murder or like offences can be preached. Now it is an extraordinary state of affairs if that can be done.’ ‘Why is this amendment brought?' Nehru asked himself in anoth- er speech in support of the amendment in Parliament, ‘I think it was the Bihar High Court which said something to the effect that preaching of murder is allowed under this clause,’ he continued. Home Minister C. Rajagopalachari also referred to the Patna High Court judg- ment in his speech in support of the Bill. When Syama Prasad Mookerjee argued against the Bill, some members inter- rupted, saying, ‘Ask the High Courts . . . A person can preach murder and still go scot-free.’ HATE SPEECH Many members in Parliament support- ed the amendment because it enabled the government to deal with hate speech. ‘I am ashamed of the Press,’ said Pandit Krishna Chandra Sharma. He added: ‘Thousands of people have been murdered on account of the false reports published in the Press regarding Hindu-Muslim riots.’ According to Chandra, in 1947, a Delhi daily newspa- per falsely reported that fifty Hindus had been killed by Muslims in commu- nal attacks, and as a consequence, thirty Muslims were killed in retaliatory attacks by Hindus on the following day. 'Who is responsible for these [thirty] Republic of Rhetoric: Free Speech and the Constitution of India Author: Abhinav Chandrachud Published by: Penguin Viking Pages: 383 Price: `599 SP Mookerjee was bent upon a war with Pakistan and repeatedly pressed his demand for undoing Partition in favour of an “Akhand Bharat” | INDIA LEGAL | November 6, 2017 47 indiafacts.org
- 48. P ioneering English news channel NDTV is making more news than breaking it. Much of it is motivated and self-serving but none of it is doing the channel’s reputation any good. Former star anchor Barkha Dutt has, almost a year after leaving, launched an attack on the management, which basi- cally means the founders— Dr Prannoy Roy and his wife Radhika. She had quit the channel to start a media venture with Shekhar Gupta and when that didn’t work out, NDTV took her back. Her final parting was messier. Meanwhile, rival channels and rival digital sites are busy planting stories about the Roys selling majority shareholding to various players, ranging from SpiceJet’s Ajay Singh, the Gupta family from South Africa and now Mukesh Ambani, depending on who is doing the planting. The truth is that the Roys still own majority shares; any change in majority shareholding must be made known in writ- ing to BSE Ltd, the national stock exchange immediately, and this has not happened so far. T he future may be dig- ital as far as the media industry is concerned but even exist- ing online news websites in India are having to innovate and change strategy to sur- vive in an increasingly crowded space. Many digi- tal portals are now getting their senior editorial staff to not just write on specialised subjects but also tell the stories on video. This means that reporters from print publications looking to switch jobs now have to prove that they have a tele- vision personality. Other websites are making radi- cal changes. Khabar-e, the digital news portal started by TV power hitter Ekta Kapoor, has suddenly, with- out warning, switched from an English website to all-Hindi. The Hindi market may be far bigger but to launch in one medium and switch midstream to anoth- er suggests a lack of pro- fessional expertise. This comes after P Ramesh, who was hired to run the English version website, quit some months ago to return to Open magazine. Meanwhile, Firstpost, the pioneer in online news portals, has introduced Showsha.com, an entertainment-only website to cater to the insatiable hunger for news that is voyeuristic with plenty of eye candy. Media Watch Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Digital Diversions 48 November 6, 2017 Hitting the Headlines T he highly respected Asian News International, the Delhi-based multi-media news agency, is losing some of its professional stature. The agency published a news story on October 12, which claimed that the Nagaland police’s intel- ligence branch had warned against a possible attack by Rohingya refugees. Quoting unnamed "intelligence sources", ANI claimed that Rohingya rebels were bringing arms and ammunition from Bangladesh to attack the people of Nagaland. The story was withdrawn after it was exposed as fake. ANI editor Smita Prakash released an apology and said that the copy editor who had "pushed ahead" the story was no longer part of the organisation. The agency then waded into the controversy over Rahul Gandhi’s Twitter accounts, claiming there were Twitter bots in countries like Kazakhstan, Russia and Indonesia, showing screenshots of the Congress leader’s tweets being retweeted. The alternative website Altnews.in found some- thing suspicious in the fact that the head of the BJP’s IT cell, Amit Malviya, tweeted a screen- shot of one of the Twitter accounts named by ANI two hours before the agency put out its story. Which raised the obvi- ous question: Was ANI spoon- fed the story by the BJP? Alternatively, did it pass on the news to the BJP in advance? ANI Domini?
- 49. InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com Superstition: Gods of Justice Judiciary: Reducing Pendency September25, 2017 Themurderofa7-year-oldboyinaprominentschoolin Gurugramshocksthenationandraisesseriousquestions aboutsafetyandsecurityforschoolchildren.ASpecialReport KILLER CLASSROOMS NO HOLDS BARRED Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends For advertising & subscription queries [email protected] SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;PVPiX]TU^acWT^UUTaX]SXRPcTSQT[^f CXRZ^]T CTaHTPab =^^U8bbdTb 2^eTa?aXRT` H^d_Ph` H^dbPeT` BPeX]V HTPa $!8bbdTb $! !% !% $ !HTPab #8bbdTb # # % %!# % =PT)0VT)BTg) 0SSaTbb) 2Xch)BcPcT)?X]) ?W^]TATb)UUXRT)TPX[) 4]R[^bTS332WT`dT=^)3PcTS)3aPf])U^a`) 2PaS=^)BXV]PcdaT) 5^a^dcbcPcX^]RWT`dT_[TPbTPSS`$ 332WT`dTc^QTSaPf]X]UPe^da^U4=2^d]XRPcX^]b?ec;cS C^QTbT]cc^)4=2^d]XRPcX^]b?ec;cS0(BTRc^a%'6PdcP1dSSW=PVPa=830D?! ( CTabR^]SXcX^]bP__[h?[TPbT_a^eXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^] STORIES THAT COUNTSTORIES THAT COUNT mmmmmmmm sssssss hihihiihihii R OM InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com Ex-Armyman: Lothario’s Messy Marriages VVIP Chopper Scam: Focus on High-flying Dubai Couple October2, 2017 Despitetheapexcourtdeclaringthatminimumpayisafundamentalright,thecentrehas madenoeffortto ensurebasicremunerationforagriculturallabourersinstates Warof WAGES STORIES THAT COUNTSTORIES THAT COUNT aaaaaaaaaaaallllll abababababaabaaaaa SSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSSS InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com Nirbhaya Fund: Criminal Lapse Courts: Adjournment Disease October9, 2017 Thepoliceassaultonthewomen-ledstudenteruptionhasinvitedwidespreadcriticismand highlightedgrowingdiscontentoverauthoritarianismand administrativebunglingonthe renownedcampussituatedintheprimeminister’sconstituency PLUS:LAWCOLLEGESONTHEBOIL h lil lt th ll d td d t ti h i it d CALLOUS CRACKDOWN CCCCALLLOOOOOUCALLOU BANARAS HINDU UNIVERSITY STORIES THAT COUNTSTORIES THAT COUNT id tr nst id S W SSSSSSS S InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com The Constitution: Why the RSS Wants a Review October16, 2017 GST:THE GOVERNMENTBLINKSFacingawitheringassaultfromcriticsandajoltfromRBI,theFinanceMinistryisreviewing thecontroversialtax.Ananalysisofthenewroadmap Mohan Bhagwat STORIES THAT COUNTSTORIES THAT COUNT LIce dm InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com Collegium System: Transparency is a Historic Step, but How Much of a Game-changer is it Really? Hate Speech: Can the Apex Court Find a Way to Curb the Menace? October23, 2017 MONUMENTAL BUNGLETheAllahabadHighCourt’sacquittalofNupurand RajeshTalwar,parentsofthemurderedteenagerAarushi, exposeshowinvestigatingagenciesandlowercourtscan subvertthecauseofjustice M TheA RajeshT exposes LLLLLLLLLLLLLLLLLLLLLLLLL rand Aaru ourts STORIES THAT COUNTSTORIES THAT COUNT d ush sc InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT ` 100 NI www.indialegallive.com Delhi International Airport: Scandal in the making Election Commission: Taking sides? October30, 2017 THEDEFAMATIONDEBATEThecourtshaveyettodecidewherethelinemustbe drawntobalancefreespeechwithprotectingreputations
- 50. I did delight In the sight Of the Taj by moonlight Now I discover It’s a monumental blunder And I thought it was a wonder. So, teardrops on my cheek As Tagore once did speak, while the RSS says it’s a crime the site was always a Hindu shrine. Yogi steps in to clear the air wielding a broom with vigour and flair with cameras on hand so he can be seen, showing that his intentions are clean. And sweep away all such fears so tourists from America are in tears having seen roads made of glass in MP and not in Agra, alas where CM Chauhan rates his roads better than the United States! And so to Gujarat, the battleground, the source of much surround sound with Twitter feeds and heated rhetoric telling the voters whom they should pick. Patel rap and other community matters render electoral calculations in tatters and star campaigners take the cake with many air miles to go, promises to make. Where GST becomes Gabbar Singh Tax and flood relief shows the EC was lax, the state can break code of conduct laws Poetic Licence Satire/Dilip Bobb 50 November 6, 2017 A s elections near and the weather changes, it brings about a sense of poetic justice or doing justice to poetry. The din and dust of competing claims and pollution levels may be a limiting factor but so much is happening around us that it all automatically gets translated into iambic pentameter. However, thanks to pre-election freebies, it is appropriate that free verse takes pride of place. Here goes: so the centre and state can play Santa Claus. And where hotel rooms have no privacy Since CCTV cameras put you at the mercy of beady-eyed cops and intelligence snoops who feed the visuals to TV channels as scoops while non-political guests say whoops! We were merely having a romantic interlude and now we are featuring on YouTube! And there, is that a bird or a plane? A man with the cape resembling superman? It’s superhero NaMo bearing gifts galore, like Father Christmas who says Ho Ho! Namo instead turns it into RO-RO! While riding a ferry instead of a sled. Meanwhile RaGa says people have bled having been shot with a double Tap that GST and demo led them into a trap from where there is no escape. But Jaitley says we are in great shape that the economic flag has been unfurled we have the highest GDP in the world! So ignore all these dogmas and isms and nattering nabobs of negativism, we have even provided a massive infusion of money into PSUs, so there is no confusion about our ability to bail out the weak even if it’s like loading gold on a boat which leaks. Our government’s mantra we have always chanted come election time we can take it for granted whatever the odds, Bholanath be brave, there is still no counter to the Modi Wave. Anthony Lawrence
- 52. . RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2017-19