India Legal 08 April 2019
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The document discusses the confusion surrounding Special Counsel Robert Mueller's report on President Trump's alleged collusion with Russia and obstruction of justice. It highlights differing interpretations of the report by Trump supporters and his opponents, as well as the demand for transparency. The piece reflects on the implications of the report and ongoing investigations into Trump's associates, emphasizing the need for serious journalism and deeper investigation into potential corruption.
![| INDIA LEGAL | April 8, 2019 33
fertilised eggs to be implanted in the
wombs of surrogate mothers. In India,
the demand for surrogate pregnancies
through the commodification of
women’s bodies has created a thriving
market due to the low costs involved.
All this raises the question: what is a
single embryo transfer? The most effec-
tive method of avoiding high-order mul-
tiple pregnancies is single embryo trans-
fer in IVF. Elective single embryo trans-
fer (eSET) is defined as transfer of one
good quality embryo in cases in which at
least two good quality embryos are avai-
lable. Practice committee guidelines of
the Society of Assisted Reproductive
Technology and the American Society
for Reproductive Medicine suggest that
eSET is most appropriate for women
with a good prognosis for conception:
(a) age <35 years; (b) more than one
high-quality embryo for transfer; (c)
first or second IVF treatment cycle;
and (d) recipients of embryos from
donated eggs.
Oocyte (egg) donation is an integral
part of modern assisted reproductive
care and is associated with the highest
success rates. Originally offered to
women with primary ovarian insuffi-
ciency (premature ovarian failure) or
those who had genetic diseases and did
not want to transmit the gene defect to
their offspring, donated oocytes are now
used by women with many reproductive
disorders and commonly by women in
later reproductive years. Approximately
20,000 attempts at pregnancy using in-
vitro fertilisation (IVF) with donated
oocytes or embryos are initiated annual-
ly in the United States alone.
It is widely believed that Malaysian
couples may be exporting their embryos
for illegal surrogacy in India because of
the country’s strict Islamic laws. Surro-
gacy is banned in India for international
couples and exit visas for the newborns
are not allowed. Indian couples, with
permission, may get the embryo frozen
in western countries and then bring it to
India for implant provided they can
prove that the same was not done with
the sole intention to get a male child.
D
urai was, in all likelihood, imp-
orting the embryo into India for
commercial purposes, which is
an illegal act in India. In December
2018, the Lok Sabha passed the Surro-
gacy Bill, 2018, which regulates altruis-
tic surrogacy and prohibits commercial
surrogacy and import of embryos.
Surrogacy means a practice whereby
one woman bears and gives birth to a
child for an intending couple with the
intention of handing over such child to
the intending couple after its birth. A
gestational carrier is a woman who
agrees to carry a genetically unrelated
child on behalf of another individual or
couple (intended parent[s]). The inten-
ded mother provides the egg and the
intended father provides the sperm;
rarely, egg donors or sperm donors are
involved. In-vitro fertilisation (IVF) is
used to create an embryo, which is
transferred into the uterus of the gesta-
tional carrier. In countries which allow
gestational carrier pregnancy, acceptable
indications vary but generally include
absent or non-functioning uterus, med-
ical conditions that preclude safe preg-
nancy, and established inability to either
conceive and/or carry a pregnancy.
As per the Surrogacy Bill, 2018, “alt-
ruistic surrogacy” means surrogacy in
which no charges, expenses, fees, remu-
neration or monetary incentive of what-
ever nature, except the medical expenses
incurred on the surrogate mother and
the insurance coverage for the surrogate
mother, are given to the surrogate moth-
er or her dependants or her representa-
tive. On the other hand, the Bill defines
“commercial surrogacy” as commerciali-
sation of surrogacy services or procedu-
res or its component services or compo-
nent procedures including selling or
buying of human embryo or trading in
the sale or purchase of human embryo
or gametes or selling or buying or trad-
ing the services of surrogate mother-
hood by way of giving payment, reward,
benefit, fees, remuneration or monetary
incentive in cash or kind, to the surro-
gate mother or her dependants or her
representative, except the medical exp-
enses incurred on the surrogate mother
and the insurance coverage for the sur-
rogate mother.
Under the Bill, the following acts fall
under the category of punishable offen-
ces: (1) commercial surrogacy; (2) sell-
ing human embryo for the purpose of
surrogacy; and (3) import of embryo for
surrogacy. Further, the import of
embryos for surrogacy is a punishable
offence with imprisonment upto 10
years and fine upto `10 lakh.
Durai was importing the embryo, not
for research purposes, and without a “no
objection certificate” from the ICMR.
His fate will be known when the Bom-
bay HC takes up the matter on April 3.
—The writer is President, Heart Care
Foundation of India, and
President-elect, Confederation of Medical
Associations of Asia and Oceania
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
Theembryowas
allegedlyscheduledto
bedeliveredattheIndo
NipponClinic,Mumbai,
runbyembryologist
GoralGandhi.Theclinic
hassofardenied
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India Legal 08 April 2019
- 1. Social Media: Tackling fake news Exclusive: Congress policy chief Sam Pitroda speaks out NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com April 8,2019 ProfessorUpendraBaxiexamineswhethertheDelhiHighCourtrulingendorsingnatural justiceandtheruleoflawforslumdwellersbeexpandedtoincludetherestofthecountry SLUMRIGHTS
- 3. Catch Us Every Saturday at 8 pm and Sunday at 2 pm
- 4. HE above tweet, quoted in this issue by our US special correspondent, the prolif- ic Kenneth Tiven, one of the very best in the business, is a pithy answer to lengthy ruminations by the media punditry on the nature and ambivalence of Special Counsel Robert Mueller’s final report on whether Presi- dent Donald Trump should be held accountable by the justice system for colluding with a foreign power (Russia) to obtain help to win his election, and then ordering a cover-up of the probe. A cover-up—obstruction of justice—is consid- ered a very serious crime as well as an impeach- able offence if committed by POTUS. Richard Nixon faced impeachment and was driven out of the Oval Office after special prosecutors and Congress relentlessly lowered the boom on him and a bevy of conspirators during the Watergate investigation in the 1970s. America appears confused by the Mueller report. Well, actually it’s not the Mueller report but a summary prepared by Attorney General William Barr for Congress. Barr’s interpretation appears to be that Mueller and his team absolved Trump, but not Team Trump (otherwise why would so many of them have been indicted by Mueller, and even jailed?) of Russia-collusion charges but did not let him off the hook on obstruction of justice. Remember, Barr is a die- hard Trumpist who had publicly proclaimed, even as the investigation was under way, that the collu- sion probe should have been junked at the start. He was appointed despite protests against his partisanship. And Mueller reports to him in the chain of command. Trumpists are proclaiming—on the basis of the Barr summary—complete vindication and point- ing to the probe as an example of a witch-hunt and gratuitous harassment of the executive. Opponents, who include powerful members of the Congress, including the chairman of the House Judiciary Committee, argue that the summary does not say that Mueller exonerated Trump on the obstruction of justice issue. They are demand- ing that the report be made public. Social media outpourings, apart from the obvi- ous rah-rah-Trump rantings, have been interest- ing, especially posts from people who were con- vinced that Mueller’s 21-month-long investigation would bring down Trump. Says distinguished author and top investigative journalist Dan E Moldea: “Mueller and his top tier of talented and dogged investigators—all of whom I admire and respect—have spoken. I can’t believe they didn’t do their absolute best to get to the bottom of the Russian conspiracy matter. “Even though the issue of obstruction remains unresolved, there will be a lot of crow eating in Washington and I will be having mine sautéed with a side dish of humble pie. Regardless, I con- tinue to insist that Donald Trump is both corrupt and dishonest and provably so. I await the results of the ongoing investigations by the US Attorney’s Office in Washington, DC, New York, and Alexandria, Virginia, as well as the State Attorney General in New York and the District Attorney’s Office in Manhattan, along with the Judiciary, Intelligence, and Oversight Committees in the House of Representatives… Meantime, Trump and the Fox News crowd will be dancing on our heads.” I could not resist responding to Dan, an old friend, on his Facebook timeline. I wrote: “I’ll be eating mine too, with side orders of Flynn, Sessions, Gates, Cohen, Manafort et al who ran Trump’s businesses, his election campaign, served in his cabinet… lied about their Russian connec- tions and the Trump Towers meeting lockstep IT’S NOT YET OVER … Inderjit Badhwar Letter from the Editor T Thequestions thatgoabegging arewhatSpecial CounselRobert Muellerreallyknew andwhenheknew it,thethresholds andlevelsofproof heappliedtoDonald Trumpasagainst thoseheusedwith whichtojudge Trump’scronies whomheindicted. Also,hasAttorney GeneralWilliam Barrinterpreted Muellercorrectly? 4 April 8, 2019 “Look, it’s VERY simple: -If it exonerated @realDonaldTrump, he’d have tweeted a link to it & insisted the Times publish it in full. Since he’s hiding it/desperately wants to keep you from reading it, it means he’s guilty. #QED.”
- 5. | INDIA LEGAL | April 8, 2019 5 with their boss. “I suppose they were indicted, locked up, or forced to resign for no other crime other than dis- cussing the minimum temperature in Moscow. I have always argued that America can only punish a wayward president through the political process of elections and simultaneous Congressional hearings and not through the administrative or judicial system. “This proves the arrival of the Imperial Presidency which even a so-called ‘independent’ Counsel cannot breach. You need a Sam Ervin and Howard Baker (Senators who conducted the Watergate hearings) and Peter Rodino (who led the House Watergate probe) working in tandem.” Echoing Howard Baker, the questions that go abegging are what Mueller really knew and when he knew it, the thresholds and levels of proof he applied to Trump as against those he used with which to judge Trump’s cronies whom he indicted. Also, has Barr interpreted Mueller correctly? My view is that serious journalists like Dan have no reason to apologise about the great work they have been doing in exposing Trump. They must never give up. The bigger challenge is to investi- gate even deeper to find whether the Russian ten- tacle has encircled not only Trump but also the justice system. D an was quick in his response: “I’m not giv- ing up. But for the past two years, I have predicted that Bob Mueller and his team were going to use RICO (the tough interstate rack- eteering statute), among other prosecutorial weapons, against Trump and his stooges. In the end, they didn’t. So, in short, I was wrong, and I believe I have a responsibility to admit it.” As our own writer Tiven sums it up: “A sooth- sayer told the family of a very famous man that the tea leaves indicated the health of the individual was terrible. The family asked: ‘May we see the tea leaves?’ Not now, they were told. Maybe someday. That is the situation in America with special prose- cutor Robert Mueller’s 21-month probe into President Trump on matters of collusion with Russians in the rigging of the 2016 US election as well as obstruction of justice.” But the teacup may not be able to contain the storm brewing within it. TOO MANY QUESTIONS America appears confused by Special Counsel Robert Mueller’s (top) report on whether President Donald Trump colluded with Russia to win the 2016 elections Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Well-knownauthorandtop investigativejournalistDanE Moldeasaysthathisprediction thatRobertMuellerandhisteam willuseRICO,atoughracketeering statute,againstTrumpandhis stooges,hasbeenprovedwrong.
- 6. ContentsVOLUME XII ISSUE21 APRIL8,2019 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: [email protected] website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: [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. Senior Content Writer Punit Mishra (Web) 6 April 8, 2019 12A New Right to the City? In a progressive order, the Delhi High Court observed that “forced eviction” of slum dwellers is unconstitutional as they have “the right to adequate housing” and courts are duty-bound to realise these objectives, writes Prof Upendra Baxi LEAD 16My Idea of India Sam Pitroda, the policy chief of the Congress and one of the country’s most respected technocrats, spoke to India Legal on a host of issues relevant to India today INTERVIEW LEGALEYE 19Pay Up for Practice The Bar Council of India has suspended the licences of 5,970 advocates for non- payment of subscription to the Advocates’ Welfare Fund
- 7. The Acid Test The Lokpal faces its first big challenge over allegations that former Karnataka CM BS Yeddyurappa paid bribes to the tune of `1,800 crore to the BJP’s top leadership Tackling Fake News Citing privacy issues, social media platforms have opposed certain amendments proposed by the centre to curb this growing menace 24 30 CYBERSECURITY FOCUS PROBE | INDIA LEGAL | April 8, 2019 7 Beset with Bottlenecks REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:[email protected] Cover Design ANTHONY LAWRENCE Cover Photo ANIL SHAKYA Ringside............................8 Courts ...............................9 Is That Legal...................10 42 Whether the traffic nightmare in Bengaluru eases or not depends to a large extent on the Supreme Court’s decision on the Peripheral Ring Road project On the Brink of Extinction 44 Only a handful of lawsuits in the Supreme Court stand in the way of one of India’s richest forests being handed over to mining companies looking to strip the verdant hills for coal Venom Backfires 46 A Kerala court has summoned Arnab Goswami for his disparaging remarks against the people of the state during a talk show held in the aftermath of the 2018 floods COURTS No to Dirty Politics 40 The Supreme Court has directed the Tamil Nadu government to take every step necessary to prevent defacement of natural landscapes and public buildings with political slogans and photographs of politicians 48Soft on Hindu Terror The government is soft-pedalling on several terror cases by extremist Hindu groups, leading many of the accused to go scot-free as happened in the Samjhauta blast case Overstaying Guests Due to the involvement of foreign students in narcotics trading and other crimes, the Karnataka High Court has said that overstaying foreigners pose a threat to national security 20 Suspect Timing In a tactless and impatient move, the centre has banned the Jammu & Kashmir Liberation Front just like it did the Jamaat- e-Islami Jammu and Kashmir a month earlier and drawn flak for doing so before the elections 26 Fertile Smuggling A Malaysian national arrested by the Directorate of Revenue Intelligence for smuggling human embryos could spill the beans on a thriving multi-crore international racket 32 White House Whitewashing The secrecy around the 21-month probe into President Donald Trump’s collusion with Russians in the rigging of the 2016 election is surprising and dismaying 38 GLOBALTRENDS Simplify Procedures The inadequacies of the criminal justice system can be ameliorated by a grading system of evidence so that their presentation in courts is more scientific and transparent 34 COLUMN MYSPACE STATES INVESTIGATION
- 8. 8 April 8, 2019 “ RINGSIDE “We have utmost respect for Kalyan Singhji... He is holding a (high) constitu- tional post. It is expected of Governors to be non-partisan.” —Rajasthan CM Ashok Gehlot after Governor Kalyan Singh supported PM Modi’s return to power after the Lok Sabha polls “Bihar BJP leaders kept me in dark. They gave me pain; now they have to give me medicine. I am waiting for them to explain me the rationale behind the decision... my self-respect has taken a beating with the way I have been treated. I have to choose between honour and self-respect.” —Union minister and BJP leader from Bihar, Giriraj Singh on being allotted the Begusarai seat in Bihar instead of Nawada “Mr. Minister @fawad- chaudhry - I only asked for a report from Indian High Commissioner in Islama- bad about the kidnapping and forced conversion of two minor Hindu girls to Islam.... This only shows your guilty conscience.” —Union minister Sushma Swaraj on Pakistan I&B minister’s remark that the minorities are safe there “I am a Hindu. The RSS calls itself an organisation of Hindus...if it has the welfare of Hindus in mind, why does it treat me as an enemy?” —Senior Congress leader Digvijaya Singh “How can I verify? I am not the owner of this video. It is in the website. Anybody can verify. You have seen the conversation. You have seen the person. You have seen the person talking. You have seen the exchange. You have seen the language. You have seen the notes. Now if you still doubt it, it is for you to doubt it.” —Congress leader Kapil Sibal on the sting video from a news portal purportedly showing a BJP worker charging commission to exchange invalid notes after the demonetisation deadline was over “The Pulwama incident happened and 45 jawans were martyred. What proof are you asking for? When Rahul Gandhi was born, Sonia Gandhi would have told him ‘Rajiv Gandhi is your father’. But if you ask proof for the same, what would you say?” —Senior BJP leader Vinay Katiyar on the Congress demanding proof of the air strikes in Pakistan “I’m still apprehensive, before the elections I feel that something could happen.” —Pakistan Prime Minister Imran Khan on the chances of military hostilities with India, to Financial Times “Why not... if the party asks me to, I will surely contest the election.” —Priyanka Gandhi Vadra in Amethi, referring to the Lok Sabha polls Anthony Lawrence
- 9. Courts | INDIA LEGAL | April 8, 2019 9 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] —Compiled by India Legal Team SC unhappy with functioning of tribunals The Supreme Court collegium comprising Chief Justice Ranjan Gogoi and Justices SA Bobde and NV Ramana recommended the names of 16 advocates for appointment as judges of the Kerala, Karnataka and Bombay High Courts. For the Kerala High Court, the collegium has forwarded the names of Conrad Stansilaus Dias, Mohammed Nias CP and Paul KK. For the Karnataka High Court, the names of Savanur Vishwajith Shetty, Singapuram Raghavachar Krishna Kumar, Maralur Indrakumar Arun, Mohammed Ghouse Shukure Kamal, Ashok Subhash- chandra Kinagi, Govindaraj Suraj, Engala- guppe Seetharamaiah Indiresh and Sachin Shankar Magadum were cleared by the top court. Advocates Avinash G Gharote, NB Suryawanshi, Madhav Jamdar, Anil Kilor and Milind Narendra Jadhav were given the nod to be appointed judges of the Bombay High Court. In response to a PIL filed by the Association for Demo- cratic Reforms (ADR) chal- lenging the electoral bonds scheme, the Election Comm- ission of India (ECI), in a counter-affidavit, told the Supreme Court that electoral bonds have a “serious impact” on transparency in political funding. It may be recalled that the electoral bonds scheme was notified by the centre on January 2, 2018. Elaborating further, the ECI que- stioned the amend- ments made to vari- ous statutes like the Representation of the People’s Act, the Income Tax Act, the Companies Act and the Foreign Contribution (Regulation) Act, on the ground that they would enable pumping of black money for political funding. It also expressed concern over the centre’s decision to remove the cap on foreign funding, saying that “un- checked foreign funding of political parties in India could lead to Indian politics being influenced by foreign compa- nies”. The case has been listed for hearing on April 2. Aconstitutional bench of the Supreme Court comprising Chief Justice Ranjan Gogoi and Justices NV Ramana, DY Chandrachud, Deepak Gupta and Sanjiv Khanna began hear- ing a batch of petitions chal- lenging the provisions in the Finance Act, 2017, relating to various tribunals. Senior advo- cate Arvind Datar, appearing for the petitioner, told the bench that infrastructure and recruit- ment in tribunals requires exten- sive consideration of the Court. Datar also told the bench that independence of the judici- ary has been hampered since the executive has taken over the task of operating the tribunals in the country. Agreeing with the concerns raised by Datar, the CJI noted that most of the tri- bunals across the country are understaffed and under-equip- ped and are virtually non-func- tional. Echoing the same view, Justice Chandrachud said: “Recruitment is not properly regulated in tribunals…the pre- siding officer has no control over non-judicial staff.” Justice Chandrachud added that non- judicial members along with judicial members play an impor- tant role in the administration of tribunals. The matter has been posted for further hearing on April 2. Taking note of the CBI’s status report on the role of former Kolkata Comm- issioner Rajeev Kumar in the Saradha chit fund scam, the apex court said the charges against Kumar were “very, very serious”. A three-judge bench headed by CJI Ranjan Gogoi also asked the probe agency to file an application within 10 days to press its charges. The bench refrain- ed from passing any order, saying that as the CBI’s sta- tus report was filed in a sealed cover, it cannot pass any order without hearing the other side. Kumar is alleged to have tampered with and destroyed call data records while heading the West Bengal SIT probing the Saradha chit fund case. Very serious charges: SC on Rajeev Kumar Concerned about electoral bonds, ECI tells SC 16 names cleared by SC collegium as HC judges
- 10. ISTHAT Is a dying declaration admissible as evidence in court? Section 32(1) of the Indian Evidence Act deals with the dying declaration. It is the last words of a person on the death bed. The statement may refer to the cause of death, the circumstances which led to death or any other cru- cial information. The declaration can be oral, writ- ten or made through gestures. If recorded, the statement can be pro- duced in court as evidence for it is believed, based on a popular legal maxim, that a person who is dying will not lie. A dying declaration is different from hearsay, which is not admissible as evidence in a court of law. However, if the person making the dying declaration has even a remote chance of coming back to life, the statement given earlier shall cease to be a dying declaration. What is an unsound mind, legally? An unsound mind refers to insanity or lunacy. It is a special mental condition or mental abnormality. As per the IPC, a person with an unsound mind shall be exempted from punishment, in case he has committed a crime. However, a person claim- ing insanity before the law has to prove it to establish that he did not know what was right and wrong while committing an offence. A person with an unsound mind can’t enter into any contract under the Indian Contract Act. A normal person who stays with such an individual can even seek divorce. Lunacy and Insanity —Compiled by Sankalan Pal The Last Words before Death Ignorance of law is no excuse. Here are answers to frequently asked queries regarding matters that affect us on a day to day basis What is the role of a liquidator in the winding up process of a company? The role of a liquidator comes up when a company enters into a winding up process or goes into liquidation. He is generally appointed either by the share- holders of the company, its creditors, or by a court order and is responsible for realising all the assets of the com- pany and paying off all its debts. The liquidator, after his appointment, has to publish a notice that he is on board. The assessing officer responsible for assessing the income of the affected company is also informed. The liquida- tor is vested with the powers to interro- gate the officers of the company on any matter whatsoever and even scru- tinise company affairs. The liquidator must maintain secre- cy at all times in all his actions. He shall also file winding up reports and minutes of meetings before the National Company Law Tribunal. PowersofaLiquidator ? Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] What must be followed while signing an insurance contract? One of the essential conditions in an insur- ance contract is disclosure of facts by both the parties. Concealing facts will lead to liti- gation once the truth comes out and any party at fault can be dragged to court by the other. The insured must disclose all medical history and other details relevant to the con- tract before signing it. After going through all the facts, the insurer may then decide whether to go ahead with the policy or not. Similarly, the person who is to be insured must be clear about the terms of the insur- ance cover. The insured must be indemnified in case of the loss against which the policy has been issued. Suppression of facts is a breach of contract. The mutual trust between an insurer and insured is a must and a much desired goal. Clarity and faith a must in insurance policies 10 April 8, 2019
- 12. Lead/ “Planet of Slums” Prof Upendra Baxi 12 April 8, 2019 NE of the many ways in which the habit of power to rule over others ass- umes is in the form of allocation of space. From the standpoint of justice, a radically defective society is one where the social space to live and work is pro- duced, distributed, exchanged and con- sumed unequally. The whole world, according to Prof- essor Mike Davis, an American writer and political activist, is fast becoming a “planet of slums” owing to heedless and headlong urbanisation. This is largely due to the “neoliberal restructuring of Third World urban economies that has occurred since the late 1970s”, “middle- class hegemony”, “petty landlordism”, “soft imperialism”, “elite homeowners”, NGOs which, he claims, are “captive to the agenda of international donors, and grassroots groups similarly dependent upon international NGOs”. Whether or not we agree with the tableau of social causes, it is sadly true that Indian devel- opment has made its own contribution to the growth of the “planet of slums”. The ways in which “slums” are pro- duced in urban places provide a major index of the deepening inequality. The 2011 Census estimated the population of Delhi in slums at 17,85,390, of which 7,38,915 lived in notified slums and 10,46,475 in unidentified slums. This pliable categorisation of “slums” de- sensitises us to the social reality of how people live in conditions unfit for human beings. Overall, the population in India in- habiting slums is more than 6.5 crore. Those inhabiting ‘‘notified slums” were over 2.25 crore, those in “recognised slums”, 2.01 crore and those in “identi- fied slums”, 2.28 crore. Many of us saw the movie Slumdog Millionaire and were momentarily moved by the condi- tions in which co-citizens live, but we also see slums as a necessary evil pro- ducing informal labour on which denizens of a city live and thrive. We revel in governance styles that promote city beautification by periodic slum demolition drives and congratulate resident welfare associations who app- roach the courts for rapid demolition. And some judicial orders, giving a green signal to this, are so unconstitutionally perverse as to lead some commentators to condemn the entire process of social action litigation as genetically coded towards judicial arbitrariness. But it must be remembered that the Indian Constitution primarily assigns the constitutional responsibility to rec- tify social inequalities and inequities to the legislatures and the executive. It is only in recent decades that courts have heroically stepped in to impress upon the state that fundamental human rights do indeed matter in constitutional good governance of the nation. In a trailblazing decision on Feb- ruary 11, 2010, then Chief Justice AP O A New RightInaprogressiveorder,theDelhiHighCourthassaidthat “forcedeviction”ofslumdwellersisunconstitutionalas theyhave“therighttoadequatehousing”andcourtsare duty-boundtorealisetheseobjectives Anil Shakya
- 13. | INDIA LEGAL | April 8, 2019 13 CITY OF SLUMS The 2011 Census estimated the population of Delhi in slums at 17,85,390, more than half of whom live in unidentified slums to the City?
- 14. Lead/ “Planet of Slums”/ Prof Upendra Baxi 14 April 8, 2019 Shah and Justice S Muralidhar of the Delhi High Court decided, in Sudama Singh, that slum dwellers in Delhi, who at the time of their settlement had no intention or knowledge that they would in future be obstructing the Right of Way, may not be forcefully evicted from the land they occupy unless given an alternate accommodation. The Court insisted that “jhuggi dwellers should not be treated as ‘sec- ondary citizens’” and that it was the “State’s constitutional and statutory obligation to ensure that if the jhuggi dweller is forcibly evicted and relocated, such jhuggi dweller is not worse off”. Evictions which “may turn out to be a method of brutal state-control” are a far cry from the promises of progressive realisation of the socio-economic rights our Constitution guaranteed 70 years ago. Mindless urbanisation should put the courts on vigilance and they must ensure “that those who are evicted and relocated have a reasonable opportunity of accessing adequate housing within a reasonable time”. Accordingly, they dec- lared that “it is the State‘s constitutional and statutory obligation to ensure” that no jhuggi dweller is forcibly evicted and relocated and that (those to be evicted) have a right to a “meaningful engage- ment” with relocation plans. S uch engagement to be “meaning- ful” (the doctrine has travelled from the South African Consti- tutional Court to the shores of India) has to be conducted either at the “time when all the members of the family are likely to be found or by undertaking re- peated visits over a period of time with proper prior announcement”. Further, the availability of documentary proof “of residence crucial to establishing the jhuggi” is important. Hence, “snatching away” or “destruction” of such docu- ments during the demolition may itself amount to denial of the right to housing. And only strong reasons may gainsay in situ relocation. These progressive principles were again reiterated by Justices Dr S Mura- lidhar and Vibhu Bakhru in Ajay Maken vs Union of India on March 18, 2019, while deciding the on-going contention between denizens of Shakur Basti and various official agencies. Recalling that “forced eviction” is unlawful and uncon- stitutional, they held that “the right to adequate housing is a right to access several facets that preserve the capabili- ty of a person to enjoy the freedom to live in the city”. The iteration of right to adequate housing is momentous; so is the new emphasis on the Right to the City (RTTC), a recent concept developed by UNESCO. The judicial creativity here is of a high order: note that the Court relates the right to housing to all related facets of access and integrates the rights to acquisition and maintenance of cap- acities (and flourishing, to complete the conception of Amartya Sen). MERCILESSLY EVICTED (Below) A slum demolition drive in Delhi’s Kathputli Colony
- 15. | INDIA LEGAL | April 8, 2019 15 HOMELESS NO MORE (Left) A slum dweller in Shakur Basti The Court accepts my viewpoint that RTTC constitutes “a right not in the sense of liberty but in the sense of power; it is an individual as well as col- lective or common right; it is a right to call for, or achieve, change in our living spaces and ourselves. However, the ‘we- ness’ for transformation is not a given but has to be constructed, forged, or fabricated if only because those who wield economic, social, and political domination aspire always towards frag- mentation of the emergent we-ness”. What is more, it accepts the idea that the RTTC “is a right ‘to struggle for maintaining critical social solidarities’” (See Upendra Baxi’s “A Philosophical Reading of the Right to City” in Urban Policies and the Right to the City in India: Rights, Responsibilities and Citizenship, UNESCO, 2011, 17). The Court thus recognises implicitly a constitutional right to struggle; this right is to be exercised peacefully against eviction ordered by various aut- horities and the right to move the Court. The struggle is for the right against unjust and unfair evictions and with various facets of access to housing rights of the urban impoverished. The Court is duty-bound to so proceed as to realise these objectives. The decision is so monumentally basic that it must be nationally binding. But because “land” is a state subject, one may proceed to read this case narrowly and maintain that technically, decisions of a High Court extend to the territory of the state concerned and are at best of persuasive value for other High Courts. It is true that this is a Delhi case con- cerned with its slum population. And the Court had before it the history of Delhi’s policy and law. I ndeed, an SLP was filed by the Union of India but it was with- drawn on July 31, 2013. Besides, in an order of December 16, 2014, the Supreme Court expanded the ambit of persons who can come before the High Court to challenge eviction even if not directly mentioned in Sudama Singh. And the 2015 policy applicable to Delhi explicitly acknowledges that decision. So did the Supreme Court decision in Government of NCT Delhi vs Union of India (2016). It would be strange if the decision were to be read this way to be decisively binding only for Delhi. Indeed, a case can be made that it is a binding law on all courts under Article 141 of the Constitution. And in any case, a peace- ful exercise of this right is assured by Article 19’s rights (freedom of speech and expression and right to association and assembly), and Article 21’s rights to life and liberty throughout India. And it would be very odd if a constitutional right to struggle were to be limited to the territory of Delhi. The RTTC may not be thus restricted. Like Delhi, there exists in almost all states, a plethora of agencies that decide on slum conditions and evic- tions. The Delhi High Court names and enumerates the “multiplicity of agencies” which have the power to evict the slum dwellers. The Delhi Urban Shelter Improvement Board Act, 2010, is admittedly the most recent law, but there are others. Important players also include actors such as the railways and the central government. The Court finds a constitutional flaw with differ- ent “land owning agencies” who command vast powers over landless slum dwellers. Exemplary are the ways in which the devices of interim orders and deci- sions have been deployed by the Court to secure a grudging executive compli- ance with judicial directions. Indeed, in the spirit reminiscent of the founding charismatic days of social action litiga- tion, the Court has shown the virtues of how the human “right to have rights” (to evoke a poignant phrase of American philosopher and political theorist Hannah Arendt) can be served by a non-adversarial dialogue between the executive and adjudicatory power. —The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] TheHighCourtheldthat“therightto adequatehousingisarighttoaccess severalfacetsthatpreservethe capabilityofapersontoenjoythe freedomtoliveinthecity”. Anil Shakya
- 16. Interview/ Sam Pitroda 16 April 8, 2019 SAM PITRODA, the policy chief of the Congress and one of India’s most respected technocrats, is credited with having ushered in the digital revolution in India in the early 1980s. He has served as an adviser with the rank of a cabinet minister in the Rajiv Gandhi government on tech- nology missions related to literacy, immunisation, tele- com, water and dairy. He has also served as chairman of the National Knowledge Commission in the UPA gov- ernment and founded the National Innovation Council in 2010 besides serving as an adviser to the United Nations. Seldom one to make contentious statements, Pitroda found himself in the thick of controversy after his alleged comments question- ing the air strikes in Pakistan by the Indian Air Force kicked up a storm on social media. He spoke to India Legal’s Senior Writer VRINDA AGARWAL in an exclusive interview. Excerpts: “We Don’t Need an Actor to Lead Us” Photos: Anil Shakya
- 17. Rahul Gandhi recently announced the minimum income guarantee scheme (Nyay). Your comments on that? Nyay is about income guarantee to the poorest of poor people who will get `72,000 a year to lead a dignified life. I think as a society it is our moral respon- sibility to take care of the poor. But Nyay is required in many other areas— jobs, women’s security, farmers, educa- tion, health. So, the Nyay initiative is a very good one. Rahul Gandhi has app- roached many legal and economic ex- perts and only after that he has gone public with it. What about the job crisis in India? We have a serious problem with jobs. This government has not created any new jobs. Unemployment today is the worst in the last 45 years. In Rajiv Gandhi’s time we created millions and millions of new jobs in IT, technology, construction, etc. You need vision to create jobs. And for that you need to look forward. There is also a need for administra- tive, judicial and political reforms. We also need reforms in the financial sector, labour, banking and the public sector. We need a vast array of reforms in all these sectors to create jobs in the future. How can we create more jobs if we don’t have labour reforms. Everyone loses sight of these reforms. How can the legal system play a role in creating a better and improved India? I think justice has a lot to do in giving us the idea of India of tomorrow. We need justice in every walk of life to make things right. I have had a chance to work with the legal system in the gov- ernment during Manmohan Singh’s time only from the viewpoint of technol- ogy. Not that I understand and appreci- ate all the nuances of our legal system but I know we have 32 million court cases pending and not enough judges and infrastructure. Our population has expanded substantially in the last 20-30 years but our judicial system has not kept pace. The world today is much more complex than it was 30-40 years ago and requires lots of new laws, whether in the digital space or privatisa- tion, liberalisation, free market econo- my, competitiveness, global businesses. It means we need more lawyers, more judges, more infrastructure and better tools and technologies to meet the needs of people. The other aspect of access to justice is how some laws are misused to suppress dissent, like the sedition clause in the IPC and the Unlawful Activities Prevention Act. Do you think there is a need to revisit these laws? We need to revisit our old laws to make sure they are in tune with the 21st cen- tury, with our Constitution and with our needs today. Another big task is to use technology as much as possible to expe- dite the process of legal justice. Third is to improve infrastructure in legal insti- tutions and give them autonomy. Fourth is to provide required manpower, train- ing and tools in terms of judges, lawyers and paralegal workers. I believe if you improve and modernise your legal sys- tem substantially you can probably add 1-2 percent to your GDP. You ushered in the digital revolution in India in the early 80’s and today India has one of the largest number of smart- phone users. Do you think the growth in the digital space has far exceeded even your wildest dreams? I would say the growth has surpassed our vision. A lot of us didn’t see the What’s your take on the political cli- mate and discourse in India today? There are a lot of people like Rahul Gandhi who are very concerned about the state of the Union. We are con- cerned because we believe that democ- racy has been undermined, Judiciary has been undermined, freedom has been curbed, lies are being spread openly and people have started attack- ing each other. In the process, real issues don’t get the attention they des- erve. Issues get hijacked in the name of security, military, border issues, nation- alism, religion, caste, gender. And the real conversation never focuses on fun- damental issues. The idea of India that our founding fathers gave us is being challenged now. This election is more about the idea of India. This election is more about what kind of a nation we want to build going forward. So when you look at India today and how different it is from those ideals, you are in one camp. On the other hand, if you don’t believe in the idea of India which is diverse, inclusive, democratic (but you believe in the idea that anybody can dictate what freedoms you have and don’t have) then you are in a different camp. You really have in a sense a polarised country in these two camps. Of course, there is larger polari- sation in terms of caste, religion, pro- fessions, poverty, education, etc. but the real polarisation is in these two ideas. You have worked with two generations of Gandhis—Rajiv Gandhi and Rahul Gandhi. What similarities and differ- ences have you seen in their style of leadership? India needs younger leaders and not a leader who is in the late sixties or sev- enties. I have seen the benefit of a young leader in Rajiv Gandhi’s time. Two, India needs a leader with charac- ter, one who believes in democracy, freedom, human values, trust, love, Gandhian values. We don’t need an actor or a great orator who lies. We need a doer and someone who develops consensus by talking to people. “Webelievethatdemocracyhasbeenundermined,Judiciaryhas beenundermined,freedomhasbeencurbed,liesarebeingspread openlyandpeoplehavestartedattackingeachother.Theideaof Indiathatourfoundingfathersgaveusisbeingchallengednow.” | INDIA LEGAL | April 8, 2019 17
- 18. 18 April 8, 2019 smartphone and internet revolution unfolding as rapidly as it has. In addi- tion, no one saw that the cell phone rev- olution would reduce cost substantially. I have spent 55 years in the telephone business. For the first 35 years, the cost per line remained roughly $1,000- 1,100. So we took 115 years to add 1 bil- lion phones in the world. Then came the cell phones which started with $2,000 per line and then reduced to below $100 per line. In 15 years we added eight billion phones because it became affordable. As a result, it was scalable and sustainable. No one saw that coming. The digital revolution has also given birth to social media which has its share of advantages and disadvantages. What are your views on it? Social media has been a great tool to connect people and exchange informa- tion. Unfortunately, a handful of people are using it to propagate lies which incompetent. And the ruling party also alleges that everyone is corrupt except them and that the Gandhi family is cor- rupt and didn’t accomplish anything in 70 years. Third, their leader keeps harping that his is a rags-to-riches story and so ought to be respected. This is not the India some of us had dreamed of. There have been some great leaders like Gandhi, Patel, Nehru, Indira Gandhi, Lal Bahadur Shastri, Manmohan Singh, Narasimha Rao, Vajpayee. They were decent human beings and never abused anyone. Young people have to think about what kind of India they want to live in. Do they want to live in an India which is undemocratic and where they have no freedoms? Or do they want to live in an India where they have freedom and opportunities? People don’t make that connection between democracy, free- dom, equal rights, diversity and oppor- tunity. If you destroy democracy, you destroy opportunities. You headed the National Knowledge Commission in UPA-I and suggested many reforms. Can we expect any movement on that front if the Congress comes to power? When we come to power we will have to revisit the Knowledge Commission rec- ommendations and see what still makes sense and doesn’t make sense and then implement those reforms. A lot of those reforms are very critical. What about our educational institutions? Our educational institutions have been hijacked. It will take a long time to bring them back to where they were. We need to systematically find and undo the damage in each institution. It could be damage because of people or processes that have been put in or because of the content that has been introduced. History is being rewritten. affect a large number of people. Part of the problem with the internet is that when it was designed it was not design- ed for mobile phones but for the fixed line. As a result, the address of the line could be identified. But now with cell phones that add- ress cannot be identified. That hiding behind the curtain is what allows peo- ple to abuse the system. Do you think that social media is being misused by one political party or do you view it as a pan-India problem? It is a global problem but in India it is a larger problem. Because first, we have a larger audience, and two, we have peo- ple who don’t mind lying. As an outsider looking into India, I see that the strategy is, let’s create fear by saying that we have strong enemies on the border. But that enemy has been there since 1947. Second, the attitude of the ruling leader is that no one knows anything except me and everyone is “Theworldtodayismorecomplexthan30-40yearsagoanditrequires newlaws,whetherinthedigitalspaceorprivatisation,liberalisation,free marketeconomy,competitivenessandglobalbusinesses.Weneedmore lawyers,judges,moreinfrastructureandbettertoolsandtechnologies.” Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Interview/ Sam Pitroda
- 19. | INDIA LEGAL | April 8, 2019 19 Legal Eye/ Bar Council of India HE Bar Council of India (BCI) has decided to suspend the licences of around 5,970 advocates for failing to pay their pending subscription to the Advocates Welfare Fund (AWF). These advocates are enrolled with the Bar Council of Tamil Nadu and Puducherry. The Advocates’ Welfare Fund Act, 2001, was enacted for the common ben- efit of advocates in 2001. Under the Act, a welfare fund was constituted, to which every advocate of a state Bar Council must pay `3,000 each year. On January 30, 2019, the Bar Council of Tamil Nadu and Puducherry cautioned Bar Asso- ciations that if an advocate fails to pay the pending subscription, his licence would be cancelled. Rule 40, Chapter 2, Part VI of the Bar Council of India Rules makes it mandatory for advocates enrolled with any state Bar Council to pay the AWF subscription. Further, Rule 42 provides for setting up a committee by the state Bar Council to decide whether an advo- cate should be suspended for non-pay- ment to the fund. After the suspension order was issued, it was challenged in the Madras High Court by the Madras High Court Advocates Association (MHAA) before a division bench comprising Justices N Kirubakaran and R Pongiappan. The bench asked what the point of practising was if one couldn’t contribute to the fund which was there for one’s own ben- efit. The MHAA contended that it wasn’t opposing payment to the AWF, but the suspension order issued to the advocates. It also challenged Rule 42 of the BCI Rules which provides for the suspension of advocates. In its defence, the Bar Council of Tamil Nadu and Puducherry said a maj- ority of the advocates, “nearly 5000”, appear to be fake. It said that several physical notices were forwarded to the advocates in addition to online ones. Ample opportunity was granted to them to air their grievances before the Bar Council. The fact that most of the notices had been returned for want of proper addresses was also mentioned. The MHAA argued that the advo- cates had not committed any profession- al misconduct or criminal offence to face such action. It went on to say that the BCI is authorised to suspend them only on disciplinary grounds and not for non-payment of any subscription. Suggesting that many advocates fac- ing the suspension might be fake, the Tamil Nadu and Puducherry Bar Coun- cil told the division bench that after sus- pension, it was expected that hundreds of lawyers would clear their dues. So far, only 12 have done so. The Council said the suspension would only be in effect till the time the dues remained pending. The High Court has agreed to keep the suspension order in abeyance for two weeks. —By Naved Ahmed No Practice till Payment TheBCIhassuspendedthelicencesof5,970advocatesfornon-paymentof subscriptiontotheAdvocates’WelfareFund Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] T Theadvocatesfacing suspensionare enrolledwiththe BarCouncilof TamilNaduand Puducherry.They challengedthe suspensionorder intheMadras HighCourt.barcounciloftamilnadupuducherry.org
- 20. Courts/ Foreign Nationals 20 April 8, 2019 NCREDIBLE India—the tagline that Indian tourism uses to draw millions of foreigners—seems to have a flip side too. While most of them visit and go back, hundreds have found ingenious ways to ille- gally stay back, exploiting loopholes in the system. On April 5, the Karnataka High Court, which had said this lapse is a serious security risk, will hear detailed submissions from government agencies on the high-ticket issue. Karnataka is home to over 20,000 foreigners. Many of them are students who are drawn to its educational institutions. However, it also has the dubious distinction of having the highest number of illegal overstays; over 1,000 foreign nationals are overstaying, violating visa and other local laws. They indulge in petty offences, get bail, and stay back in India till the court disposes of the matter. It is a double-edged sword. The courts Guest Not Always God Duetotheinvolvementofforeignstudentsinnarcoticstradingandothercrimes,theKarnataka HighCourthassaidthatoverstayingvisitorsposeathreattonationalsecurity By Stephen David in Bengaluru IILLEGAL STAYBACK While foreign students are warmly welcomed, their overstay becomes a problem UNI
- 21. | INDIA LEGAL | April 8, 2019 21 have sought greater coordination among agencies in order to address this nation- al problem. On March 14, while hearing a peti- tion filed by a Congolese national, HB Sidney, Justice Aravind Kumar of the Karnataka High Court directed the state government to submit details of over- staying students and cases registered against them by April 5 when the matter will be heard again. Justice Kumar orally observed that instances of involvement of students from foreign countries in narcotics trad- ing and other crimes may pose a serious threat to national security in the state. Sidney and three others were arrested by Bengaluru police in February 2017 for visa violations. Earlier this year, a division bench of Justices Nutan D Sardessai and MS Sonak of the High Court of Bombay at Goa observed: “Since, the State is itself conscious that some foreign nationals, at times, deliberately involve themselves in petty offences, only in order to facili- tate their overstay in India or otherwise defeat the provisions of the Foreigners Act, 1946, rules and orders made there- under, we can only say that the State/ Prosecution, in such cases, must either seek expedition of such matters by filing appropriate application before the Magistrate or Courts where such mat- ters are pending or even consider whether withdrawal from the prosecu- tion is a better option. In either case, however, all arrangements must be made to forthwith deport such foreign nationals who are found to have no proper travel documents or whose visa term had already expired, no sooner such matters are disposed of by the Magistrate or Courts.” Although the directive looks easy to implement, it has been hamstrung by inefficiency in interdepartmental coordi- nation and inadequate manpower. A retired deputy commissioner of police told India legal: “It just boils down to manpower and proper coordination between local and central agencies. Right now, these people exploit loop- holes in the system and exhaust the lim- ited resources that the police depart- ment has. Fighting it out in courts is an exhaustive and laborious process.” T he Goa bench also cautioned that a different, much harder app- roach be deployed when foreign nationals are involved in serious offen- ces involving drugs (NDPS Act), cyber fraud, murder, rape, etc. After directing a slew of agencies, both in the state and at the centre, the Goa bench ordered taking “emergent steps as may be per- missible in law, in order to deport the foreign nationals…where there are no legal impediments for taking such steps”. It also sought an affidavit of com- pliance on or before June 3, 2019, indi- cating the status of the action taken. One major reason why most states fail to keep a tight vigil over foreigners who overstay is because there are no detention centres. On January 31, 2019, the home ministry sent out a circular to additional chief secretaries of all the states and UTs to make operational detention centres for overstaying foreign nationals. The circular also had guide- lines to set up a “Model Detention Centre/Holding Centre/Camp Manual”. In states like Karnataka, talk of a deten- tion centre has been on from 2014. It came up two years later too when a sin- gle judge of the Karnataka High Court, Justice AV Chandrashekhara, dismissed a bail plea from a foreign student. In his February 18, 2016 judgment (CC Chukwu vs State of Karnataka), he noted that there were 1,165 foreigners overstaying in Karnataka and as many as 330 criminal cases registered against foreign nationals for various crimes, including drug peddling. The Bengaluru police had slapped cases under Sections 376 and 506, IPC and Section 14, Foreigners Act against Chukwu whose bail plea was registered by the High Court. Chukwu had come to the city on a “medical attendant” visa— expiring in April 2013—but the police noticed he had overstayed when they nabbed him for a rape charge in October 2015. So how did the “medical attendant” stay undetected beyond the expiry date? Why didn’t the police or the local for- eign registration office coordinate earlier to spot the violations? Justice Chandrashekhara observed: “It appears that there is no proper and effective co-ordination between the Foreigner Regional Registration Office (FRRO) and the police. Many foreign nationals are overstaying here and the period of overstay is not forthcoming. In the present case, the petitioner herein has been overstaying in India for over 2 years 9 months. It is in this regard a proper and effective co-ordination between FRRO and local police is an absolute requirement. This court expects that there would be periodical meeting of the senior representatives of the Police Department and the con- cerned ministry of the Central JusticeAravindKumarofthe KarnatakaHighCourtdirectedthe stategovernmenttosubmitdetailsof overstayingstudentsandcases registeredagainstthembyApril5 whenthematterwillbeheardagain.
- 22. 22 April 8, 2019 Government in order to exchange the data and to take appropriate legal action without undue delay.” Justice Chandrashekhara observed that it was only during the course of investigation that the respondent, the police, came to know that the petitioner was a foreign national who had over- stayed and it was in this regard that Section 14 of the Foreigners Act was invoked. Punishment under this Act is five years’ imprisonment plus a fine. But it was a classic case of locking the sta- bles after the horses had bolted. N ow that the courts are seized of the matter, work on setting up a separate foreigners’ detention centre in the city is moving at a fast pace. In 2016 itself, the additional advo- cate general had informed the Court about the large number of foreign nationals overstaying in Bengaluru and no establishment of a detention centre in the city. To buttress the fact that India treats its guests like God, Additional Solicitor General Krishna Dixit also told the sin- gle judge at that time that “the police as well as the Government of India have been soft towards foreign nationals stay- ing here in spite of their long and unjus- tified overstay in Bengaluru and other parts of the state and that the same must not be misused by them (foreign nationals) in any manner either by vio- lating the provisions of the Passports Act or Foreigners Act or other penal statutes of the state or country”. Justice Chandrashekhara was also alerted about a few cases in which the trial courts had taken too lenient a view and imposed flea-bite sentences on accused persons (accused of violating provisions of the Foreigners Act, 1946, and Foreigners Order, 1948). So even in cases of long overstay of foreign nation- als, the accused was slapped with a fine of a mere `10,000 and a day’s simple imprison- ment. The Court was request- ed to lay down clear guide- lines regarding the approach to be adopted by the trial court whenever foreign nationals plead guilty to the charges levelled. The Foreigners Order, 1948, is a statutory order issued by the executive in the exercise of powers conferred under Section 3 of the Foreigners Act, 1946. Order 7 of the Foreigners Order, 1948, speaks about restriction of sojourn in India. The purpose for which visa is issued once will not be converted at any cost. So a foreigner who is in India on a “medical atten- dant” visa cannot be permit- ted to do business. And nowhere in the petition filed under Section 439, CrPC is anything men- tioned about the profession that the petitioner (Chukwu) was pursuing in Bengaluru and the reason for his long overstay. The Registration of Foreigners Act, 1939, lays the onus of proof of being or not being a foreigner on that person. Simply put, every foreigner in India must always have a proper document to support his stay in India. In the case of Janarajan vs State of Tamil Nadu, 2005, the Madras High Court reiterated that if bail is granted to a person who has violated provisions of the Foreigners Act, he cannot stay in India even for a day without a valid passport and visa. Hopefully, after the Karnataka High Court hears the present matter, all par- ties concerned will move fast on ensur- ing that the guests do not illegally over- stay their hospitality. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Courts/Foreign Nationals JusticeAVChandrashekharahad observedthatthereisnoeffective co-ordinationbetweentheForeigners RegistrationRegionalOfficeandthe police,whichiswhymanyforeign nationalsareoverstaying. indiaolsons.blogspot.com
- 24. 2019, it too had become a lame duck. Despite sitting on the appointment, the Modi government did not allow the Leader of the Opposition to be in the selection panel and instead, brought its own man, former Attorney General Mukul Rohatgi, as an “eminent jurist”. From one lame duck government to another, the institution of the Lokpal has had a chequered history, which by no means is edifying. Ironically, the supreme watchdog of India’s gover- nance and integrity was born of gross impropriety and was appointed by a caretaker government after the general election was announced. That is not a good omen. At long last, on March 23, 2019, Justice Pinaki Chandra Ghose was sworn in as Chairperson, Lokpal. Other judicial members of the Lokpal are Justices Dilip B Bhosale, Pradip Kumar Mohanty, Abhilasha Kumari and Column/ Lokpal MG Devasahayam 24 April 8, 2019 HE Lokpal Act received presidential assent on January 1, 2014 and became the law of the land. Its objective is to provide for the establishment of a body that will inquire into allegations of corruption against certain public func- tionaries and for matters connected therewith. This is in deference to the constitutional mandate of ensuring jus- tice for all, India’s ratification of the UN Convention against Corruption and the government’s commitment to clean and responsive governance by providing prompt and fair investigation and prose- cution in such cases. By the time the process of appoint- ment of a Lokpal was put in place, the UPA government became a lame duck and then lost power in May 2014. And when the NDA government appointed the Lokpal after five years in March Ajay Kumar Tripathi. Non-judicial members are former IAS officers Dinesh Kumar Jain and Indrajeet Prasad Gautam, former IPS officer Archana Ramasundaram and former IRS officer Mahender Singh. Not only the method and timing of appointment of the Lokpal, its composi- tion too has become a subject of contro- versy. Justice Ghose is alleged to have favoured the elevation of an undeserving candidate as a High Court judge. This facilitated him in superseding another judge to become a chief justice. Mahen- der Singh was reportedly the subject of several allegations and despite his rela- tive seniority could not be appointed chairman of the Central Board of Indirect Taxes and Customs. Dinesh Kumar Jain was last year appointed chief secretary of Maharashtra, super- seding two senior contenders, and even got an extension. Indrajeet Prasad Gautam is from the Gujarat cadre and is stated to be close to Prime Minister Modi. Be that as it may, the Lokpal faced its first challenge on the first day itself with allegations that former Karnataka Chief Minister BS Yeddyurappa paid bribes to the tune of `1,800 crore to the BJP’s top leadership. The Congress said this was a fit case to be investigated by the Lokpal, thereby setting the stage for its first acid test. The allegations against Yeddyurappa pertain to 2017 when the income tax department was stated to be in posses- sion of copies of diary entries in his handwriting where payoffs of over `1,800 crore were shown to be given to TheombudsmanfacesitsfirstchallengeoverallegationsthatformerKarnatakaCMBSYeddyurappa paidbribestothetuneof`1,800croretotheBJP’stopleadership.WilltheLokpalinvestigatethis? T UNI The Acid Test SCRIPTING HISTORY President Ram Nath Kovind administering the oath to Justice Pinaki Chandra Ghose
- 25. | INDIA LEGAL | April 8, 2019 25 BJP leaders, the party’s Central Commi- ttee, judges and advocates. Yeddyurappa had put down these payouts in a 2009 Karnataka assembly legislator’s diary in Kannada. Y eddyurappa had allegedly noted in the pages that he had paid the BJP Central Committee `1,000 crore; Finance Minister Arun Jaitley and Transport Minister Nitin Gadkari `150 crore each; Home Minister Rajnath Singh `100 crore and BJP stal- wart LK Advani and senior party leader Murli Manohar Joshi `50 crore each. Yeddyurappa also allegedly paid `10 crore for “Gadkari’s son’s marriage”. The diary entries also state that he paid `250 crore to “judges” and `50 crore to “advocates”, but did not men- tion any names. In August 2017, the income tax department reportedly seized copies of these diary pages during a raid on the residence of DK Shivakumar, a senior Congress leader in Karnataka. Yeddy- urappa’s signature was confirmed by two documents that had his handwriting. The first was a letter that he had written in January 2017 to Sushil Chandra, who headed the Central Board of Direct Taxes, urging him to take action against Shivakumar for his “irregularities and corruption”. The other was Yeddyu- rappa’s affidavit filed during the 2013 assembly elections. Interestingly, Chan- dra is now an Election Commissioner. Obviously, the IT department and the BJP government have not acted on this diary since August 2017. A senior IT official is stated to have taken copies of the diary entries to Jaitley, seeking directions. But, as Jaitley is named in the diary, he chose to be silent. The entries also include amounts allegedly paid to state legislators, many of whom were instrumental in helping Yeddyu- rappa become the chief minister in 2008. In the assembly election that year, he scraped together a majority by luring away several MLAs who had won on Congress or Janata Dal (S) tickets or who were Independents. Five of the six Independents who supported Yeddy- urappa were later appointed to his cabi- net. Several are named in the diary. There are also several bribes he has allegedly received. He is currently the Leader of the Opposition in the state and known for horse-trading. This is a case of bribe-giving and bribe-taking and can warrant a maxi- mum punishment of seven years’ impri- sonment under the Prevention of Corr- uption Act. This case also warrants investigation, prosecution and penal action by an independent and autonomous agency with adequate power and authority. This is exactly what the Lokpal is and the very raison d'être of its formation and existence. The “Yeddy Diary” case is an ideal one to be taken up by the Lokpal and inves- tigated immediately. The Lokpal has jurisdiction to inquire into allegations of corruption against public servants such as the PM, ministers in the Union government or MPs. A complaint under the Lokpal Act should be in the prescribed form and must pertain to an offence under the PC Act by the public servant. There is no restriction on who can make the com- plaint. When a complaint is received, the Lokpal may order a preliminary inquiry by its Inquiry Wing or refer it for investigation by any agency if there is a prima facie case. But before that, the Lokpal should call for an explana- tion from the public servant. Preliminary inquiry and submission of the report to the Lokpal should be done within 60 days. A Lokpal bench consisting of no less than three mem- bers shall consider the report, and then decide whether to proceed with the investigation. The agency ordered to conduct the probe has to file its investi- gation report in a court of appropriate jurisdiction, and send a copy to the Lokpal. A bench of at least three mem- bers will consider the report and may grant sanction to the Prosecution Wing to proceed against the public servant based on the agency’s charge sheet and secure conviction. Due to impropriety in its appoint- ment and other apprehensions, the credibility of India’s super-Ombudsman is on shaky ground. The “Yeddy Diary” is the hard test the Lokpal has to pass lest it become yet another wasteful abode of sinecure-seekers. —The writer is a former Army and IAS officer Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] InAugust2017,theincometaxdepartmentreportedlyseizedcopiesofformer KarnatakaChiefMinisterBSYeddyurappa’sdiarypagesduringaraidontheresidence ofDKShivakumar(right),aseniorCongressleaderinKarnataka.
- 26. My Space/ JKLF Ban Pushp Saraf 26 April 8, 2019 CCOMPANYING charis- matic J&K leader Abdul Ghani Lone as a member of his younger son Sajjad Ghani Lone’s wedding party, this writer more than once met the late Amanullah Khan, founder of the secessionist Jammu & Kashmir Liberation Front (JKLF) in Pakistan and “Azad” Kashmir in 2000. Sajjad married Khan’s only child, Asma. Many top leaders of Pakistan and the who’s who of militancy, including Lash- kar-e-Toiba ideologues and a few Sikh militants enjoying local patronage, were present at the marriage banquet at a five-star hotel in Islamabad. An odd man in this gathering was Vijay Nam- biar, then India’s High Commissioner to Pakistan. He was accompanied by his wife, and family members of Kashmiri militants beseeched them to ease visa restrictions so that they could travel to and fro between India and Pakistan. It was an awesome occasion. The senior Lone was a founder of the Hurriyat Conference, a conglomeration of secessionist parties. Sajjad and elder brother Bilal were young leaders sharing the same separatist spectrum as their contemporary, Mohammad Yasin Malik, who is in the news these days as the jailed chairman of the JKLF, which has been banned. The Lone brothers and Yasin were among about a dozen young separatists simultaneously arrested in 1990. Amanullah was one of the archi- tects of armed insurgency and was most wanted in India for several cases, including the murder of Indian diplo- mat Ravindra Mhatre in the UK in 1984 and Kashmir University Vice-Chancellor Mushir-ul-Haq in Srinagar in 1990. By directing the envoy to be present, the first National Democratic Alliance (NDA) government headed by Atal Bihari Vajpayee showed confidence, sag- acity and maturity to take the bull of militancy by its horns in J&K, especially in the Valley. It was not deterred by the credentials of the hosts and guests. App- arently, it felt that while it could take care of armed militancy and Pakistani infiltrators through security forces, it should address political ideologues pol- itically much like Jawaharlal Nehru did in 1964 when he sent a delegation led by Sheikh Abdullah to talk to Pakistan dic- tator Ayub Khan and the leaders of the occupied territory—an exercise that was cut short by Nehru’s death. Vajpayee’s initiative was followed by Timing is Everything Inatactlessandimpatientmove,thecentrehasbannedtheorganisationjustlikeitdidthe Jamaat-e-IslamiJammuandKashmiramonthearlieranddrawnflakfordoingsobeforetheelections A Photos: UNI
- 27. | INDIA LEGAL | April 8, 2019 27 important developments. The coura- geous Abdul Ghani Lone intensified his work for restoring normalcy. He had already, in the midst of celebrations in Pakistan, questioned the role of foreign mercenaries in the Valley and cautioned them not to cross the line. He was assas- sinated at a rally in Srinagar on May 21, 2002. Vajpayee as the PM was moved to say that Lone was killed because he worked for peace. Angered by the mur- der, the Lone brothers hit back at the separatists and tore apart their decision to boycott the 2002 assembly polls. They fielded proxy candidates in their stronghold in Kupwara district. A s a result, the assembly polls were an unexpected success. Their bold assertion split the Hurriyat Conference down the middle. Sajjad Lone heads the People’s Confer- ence, founded by his father, and is cur- rently a leading player as an ally of the BJP with undisguised admiration for his “elder brother”, Narendra Modi. Bilal is with a Hurriyat faction led by Mirwaiz Moulvi Umar Farooq. This background underlines the fact that militancy can’t always be fought by guns and intimida- tion. It is necessary to engage the sepa- ratists at all levels instead of isolating them to the point of a total break in communication. The Modi government has not shown the tact, knowledge and patience neces- sary for negotiating with adversaries. In- stead, it has taken a series of steps that have pushed the militants and their ide- ologues under one umbrella despite their serious ideological differences like the banning of the JKLF and the Jam- aat-e-Islami Jammu and Kashmir (JeI). It has not taken into account their respective strengths and weaknesses. Its stubborn approach, as per the grapevine in the Valley, has also caused erosion of popular support for Sajjad Lone in his family’s den in Kupwara district. It banned the JKLF under the Un- lawful Activities Prevention Act on March 22 close on the heels of similar action taken against the JeI on February 28. The withdrawal of security cover to some separatist leaders, the institution of National Investigation Agency (NIA) cases, largescale arrests, well-advertised deployment of thousands of paramili- tary men in the Valley in addition to the already existing large force and the int- roduction of two Constitution amend- ments through the governor’s adminis- tration coupled with the state govern- ment’s decision to stop advertisements to two newspapers—Greater Kashmir and Kashmir Reader—may further alienate an already disillusioned section of the population. Decades-old cases have been cited as grounds for action against the JKLF and Yasin Malik. An official release says: “Jammu & Kashmir Liberation Front led by Md Yasin Malik has spearheaded the separatist ideology in the Valley and has been at the forefront of separatist activi- ties and violence since 1988. Murders of Kashmiri Pandits by JKLF in 1989 trig- gered their exodus from the Valley. Md Yasin Malik was the mastermind behind the purging of Kashmiri Pandits from the Valley and is responsible for their genocide. JKLF has many serious cases registered against it. This organisation is responsible for the murder of 4 Indian Air Force personnel and kidnapping of Dr Rubaiya Sayeed (daughter of then Home Minister Mufti Mohammad Saye- ed in Shri VP Singh’s government). This organisation, alongside, is also responsi- ble for illegal funnelling of funds for fo- menting terrorism. JKLF is actively in- volved in raising funds and its distribu- tion to Hurriyat cadres and stone pelters to fuel unrest in the Kashmir Valley as well as for subversive activities. Activi- ties of JKLF(Y) pose a serious threat to the security of the country and are prej- udicial to the territorial integrity and sovereignty of India. The organisation has been actively and continuously en- couraging feelings of enmity and hatred against the lawfully established govern- ment as well as armed rebellion. 37 FIRs have been registered by J&K police against JKLF. Two cases including the case of murder of IAF personnel were registered by the CBI. The NIA has also registered a case, which is under investi- gation. It is evident that JKLF continues to be actively engaged in supporting and inciting secessionism and terrorism including terror financing.” CONTROVERSIAL LEADER (Left) Late Amanullah Khan, the founder of the Jammu & Kashmir Liberation Front TOTAL SHUTDOWN An armyman keeping vigil at Lal Chowk, Srinagar, during a strike called against the ban
- 28. 28 April 8, 2018 The kidnapping of Dr Rubaiya took place in 1989 and the killing of the IAF personnel in 1990. If the Union govern- ment was so concerned, why did it not move in the matter during the major part of its tenure which is on the verge of completion? How can it be explained that between 1990 and 2014 Yasin Malik held talks with the highest func- tionaries in New Delhi? Little regard has been shown for many proactive acts by him—the obser- vance of ceasefire by him after 1994, the JKLF’s armed confrontation with pro- Pakistan Hizbul Mujahideen cadres on the streets of Srinagar before that, and his disclosure in 2005 bringing to the fore the role of Pakistani leader Sheikh Rashid (railways minister in the Imran Khan cabinet) in imparting arms train- ing to 3,500 Kashmiri youths in Rawal- pindi in collusion with the ISI which was subsequently confirmed by another top Kashmiri militant-turned-over- ground activist Abdul Ahad Waza. The centre has justified action again- st the JKLF and the JeI, saying that they were “in pursuit of strong action against terrorism” as it has “followed the policy of ‘Zero Tolerance’ against terrorism and has acted strongly against terrorists” giving security forces a “free hand.” The JKLF has, on the other hand, announ- ced that it would not be “subdued” as the “killing of Kashmiri Pandits, raising funds, cases of killing people, terror funding and waging war against the Indian state are nothing but ill-designed cases to malign the leadership of JKLF”. The timing of these moves has ex- posed the BJP to the charge of aiming to benefit from a positive electoral res- ponse in the Lok Sabha polls and in Jammu and Ladakh regions in the par- liamentary and assembly polls when they are held. National Conference Vice- president and former CM Omar Abdu- llah sarcastically tweeted: “For 4 1/2 years Yasin Malik isn’t a threat, Jamaat Islami isn’t a threat... Now suddenly once an election is announced an imme- diate u-turn is executed.” Even Sajjad Lone has frowned upon the ban on the JKLF after having earlier flayed the action against the JeI and the ban on newspaper advertisements: “From und- erground to overground. Was part of those arrested in a raid in Barzalla to arrest Yasin Malik in 1990. JKLF renou- nced violence in 90s. It was tantamount to suicide. At great risk Yasin Malik took that decision. And now stands banned. Shrinking space for peaceful dissent.” PDP president and former CM Mehbooba Mufti, who is the sister of Dr Rubaiya, has echoed similar sentiments: “Yasin Malik renounced violence as a way of resolving J&K issue a long time ago. He was treated as a stakeholder in a dialogue initiated by then PM Vajpa- yeeji. What will a ban on his organisa- tion achieve? Detrimental steps like these will only turn Kashmir into an open-air prison.” Indeed, the stakes are too high in this election. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] My Space/ JKLF Ban/ Pushp Saraf SERIOUS CHARGES JKLF Chairman Yasin Malik addressing supporters in Srinagar; he is currently in jail on charges of killing four 4 IAF personnel “For41/2yearsYasinMalikisn’ta threat,JamaatIslamiisn’tathreat...Now suddenlyonceanelectionisannounced animmediateu-turnisexecuted.” —OmarAbdullah,NCVice-President “YasinMalikrenouncedviolenceasa wayofresolvingJ&Kissuealong timeago....Whatwillabanonhis organisationachieve?” —PDPPresidentMehboobaMufti
- 30. Cyber Security/ Social Media Platforms 30 April 8, 2019 MENDMENTS proposed by the government for a notification issued in 2011 under Section 79 of the Information Technology Act, 2000, have attracted stiff opposition of the industry led by WhatsApp. A coalition of 31 civil society and technology experts has also submit- ted a joint letter to the Ministry of Electronics and Information Technology stating that the proposed amendments “would erode digital security and under- mine the exercise of human rights glob- ally”. Section 79 exempts intermediaries from liability in certain instances and states that they will not be liable for any third party information, data or commu- nication link made available by them. The committee has raised the follow- ing objections: Implementation of traceability of mes- saging would weaken the encryption of platforms such as WhatsApp and under- mine digital security and user privacy. The guidelines would “empower the government to request for information and assistance” and erode human rights globally. It has also advised the government that as the model code of conduct for elections is operational, the government should withdraw the amendments. The government appears confused about whether it is violating the model code of conduct of the Election Commission. It has to be stated, however, that the objections raised by the industry are not based on sound technical or legal gro- unds and deserve to be rejected out- right. Also, in view of the forthcoming elections, the government should go ahead and issue the notification. Legally speaking, the notification does not amend Section 79 of ITA 2000. It is an administrative guideline that suggests some guidelines for “due dili- gence”. Due diligence is the available defence for the intermediary so that it is not held liable for misuse of its platform provided that there is no abetment, neg- ligence and violation of law. The amendment was required as the earlier notification of 2011 did not have social media companies as its focus for defining due diligence. It appears that these companies are firing their objec- tions on the shoulders of privacy and freedom of expression, and are actually trying to prevent the government from curbing the spread of fake news. The reasons given by the consortium to oppose the notification include the inability of the intermediaries to identify “unlawful acts” and inability to remove the objectionable content expeditiously when notified. We must recognise that “fake news” is commercially beneficial to the inter- mediaries and there is a vested interest in the generation and spread of it. There is, therefore, no commitment to elimi- nate fake news and opposition is mount- ed only because of this commercial self- interest. If this tendency is not checked, trust in social media will be lost and Facebook, Twitter and WhatsApp will become part of “E-Yellow Journalism”. It is time social media companies Tackling Fake News Citingprivacyissues,thecompanieshaveopposedcertainamendmentsproposedbythe centretotacklefakenews.Butsuchnewsiscommerciallybeneficialfortheintermediaries By Na Vijayashankar A NOTHING WRONG It is time the social media companies exercise due diligence so that they are not held liable in case their platforms are misused Anil Shakya
- 31. | INDIA LEGAL | April 8, 2019 31 show greater responsibility for the good of society and support the war against fake news. The first step in this direc- tion is to stop the false propaganda against the proposed amendments. The guidelines prescribe that intermediaries initiate measures to preserve the “trace- ability” of messages by capturing and preserving the message originating in- formation. This does not require decryp- tion of the body of the message in serv- ices like WhatsApp. Technically, the metadata of a mes- sage has always been part of the mes- sage header and the current require- ment is not new. Earlier, message head- ers were recording the message byte size and it is expected that this would now be replaced by a “Message Hash Value”. This has no impact on privacy and digi- tal security as alleged by these compa- nies. In fact, some of the intermediaries are at present implementing additional technical measures to hide the originat- ing information by issuing proxy IP add- ress to its users. Though this is justified under “privacy”, it is an open assistance to criminals to protect them from being detected by law enforcement agencies when a crime occurs. This actually makes such intermediaries “accom- plices” in crime. If the logic of the expert group that collection of metadata compromises privacy is accepted, then there can be objection for keeping log records of any activity, either on the internet or on the computer. This cannot be accepted and the rights of law enforcement are recog- nised even in privacy laws. In the recent Pulwama attack, it was observed that “virtual SIMs” were used by terrorists. These issuers are “interme- diaries” who provided the service to the law-breakers to hide their identity while committing crimes. Thus, there is a need to make them accountable. A nother objection raised by the intermediaries is that “the guide- lines are too vague and it is not possible for the tech company to know what is unlawful”. Ignorance of law can’t be used as an excuse to avoid the consti- tutional duty to assist the government of the day in maintaining law and order. The responsibility to comply with law extends not only to ITA, 2000 to which Section 79 and this notification belongs, but also other laws like the IPC or the Companies Act, besides the Cons- titution itself and the companies need to equip themselves to know the law. Yet another objection raised is about the requirement that an intermediary should remove content which has been ordered to be removed by a court or a competent authority, immediately and not later than 24 hours. It must be no- ted that the order to remove would be for a specific identified content. The responsibility of the intermediary is only to remove public access to it. This it will be able to do instantly while preserving it as evidence when required. As there is no need for the company to conduct any internal inquiry or audit before the con- tent is removed, the time limit of 24 hours is more than sufficient. Recently, Facebook introduced a sys- tem of registering the identity of users who want to place advertisements relat- ed to election campaigns in India to comply with the election law. This could be the beginning of a new trend in social media and lead to the creation of a trus- ted social media platform. This can gra- dually reduce the menace of fake news. Another solution could be the adoption of a self-regulatory framework by the industry with a mechanism to imple- ment voluntary compliance. Thus, the objections raised against the amendments to the intermediary guidelines under Section 79 of ITA, 2000 needs to be rejected and the gov- ernment should go ahead with its release immediately to protect the integrity of the social media platform. —The writer is a cyber law and techno-legal information security consultant based in Bengaluru. The views expressed are personal Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Thereisno commitmentbysocial mediacompaniesto eliminatefakenews.If thistendencyisnot checked,trustinsocial mediawillbelostand Facebook,Twitter andWhatsAppwill becomepartof “E-YellowJournalism”. NO MORE IN ITS GRIP Children being made aware about fake news in a class in Kerala
- 32. Focus/ Human Embryos 32 April 8, 2019 HE Directorate of Revenue Intelligence (DRI) that is used to all kinds of smug- gling—from gold to jewel- lery to drugs—increasingly has to deal with smuggling of a different kind of cargo. Last week, the agency began probing an alleged case of smuggling of human embryos after Partheban Durai, a Mala- ysian national, was arrested at Mumbai International Airport on his arrival from Kuala Lumpur on March 15 with a nitr- ogen canister containing a single human embryo tucked inside his suitcase. On questioning, Durai admitted to bringing embryos to Mumbai at least eight to nine times in the past. In the present case, he was allegedly scheduled to deliver the embryo at Indo Nippon Clinic, Bandra, run by embryologist Goral Gandhi. The clinic has so far den- ied any involvement in the fiasco. The DRI will be conducting a forensic analysis of the seized embryo to estab- lish its nationality and of the DNA to identify the parents. Import of embryo, ovum and sperm is prohibited in India except for research purposes since 2015. An Indian Council of Medical Research (ICMR) guideline to permit regulated import is under the consideration of the Union government. The Ministry of Commerce and Indus- try, vide a Directorate General of For- eign Trade (DGFT) notification dated October 26, 2015, on the subject, said: “Amendment in import policy of Human Embryo classified under Exim Code 0511 99 99 of Chapter 05 of ITC (HS), 2012–Schedule–1 (Import Policy) changed the existing policy of “import of Human Embryo will be free subject to a ‘No Objection Certificate’ from the Ind- ian Council of Medical Research” to re- vised policy “Import of Human Embryo is ‘Prohibited’ except for research pur- poses based on the guidelines of the Department of Health Research.” Durai, who claims to work for Heart to ART IVF centre in Malaysia, was obviously not transporting the embryos for research purposes. The Malaysia centre was registered two years ago in Selangor to exclusively provide surroga- cy services and services related to egg donors, surrogate mothers and sperm donors, along with IVF services. Invest- igators believe he was illegally importing Fertile Smuggling AMalaysiannationalarrestedbytheDirectorateofRevenueIntelligenceforsmugglinghuman embryoscouldspillthebeansonathrivingmulti-croreinternationalracket By Dr KK Aggarwal THRIVING TRADE Babies born through in-vitro fertilisation at a fertility clinic in Ahmedabad T UNI
- 33. | INDIA LEGAL | April 8, 2019 33 fertilised eggs to be implanted in the wombs of surrogate mothers. In India, the demand for surrogate pregnancies through the commodification of women’s bodies has created a thriving market due to the low costs involved. All this raises the question: what is a single embryo transfer? The most effec- tive method of avoiding high-order mul- tiple pregnancies is single embryo trans- fer in IVF. Elective single embryo trans- fer (eSET) is defined as transfer of one good quality embryo in cases in which at least two good quality embryos are avai- lable. Practice committee guidelines of the Society of Assisted Reproductive Technology and the American Society for Reproductive Medicine suggest that eSET is most appropriate for women with a good prognosis for conception: (a) age <35 years; (b) more than one high-quality embryo for transfer; (c) first or second IVF treatment cycle; and (d) recipients of embryos from donated eggs. Oocyte (egg) donation is an integral part of modern assisted reproductive care and is associated with the highest success rates. Originally offered to women with primary ovarian insuffi- ciency (premature ovarian failure) or those who had genetic diseases and did not want to transmit the gene defect to their offspring, donated oocytes are now used by women with many reproductive disorders and commonly by women in later reproductive years. Approximately 20,000 attempts at pregnancy using in- vitro fertilisation (IVF) with donated oocytes or embryos are initiated annual- ly in the United States alone. It is widely believed that Malaysian couples may be exporting their embryos for illegal surrogacy in India because of the country’s strict Islamic laws. Surro- gacy is banned in India for international couples and exit visas for the newborns are not allowed. Indian couples, with permission, may get the embryo frozen in western countries and then bring it to India for implant provided they can prove that the same was not done with the sole intention to get a male child. D urai was, in all likelihood, imp- orting the embryo into India for commercial purposes, which is an illegal act in India. In December 2018, the Lok Sabha passed the Surro- gacy Bill, 2018, which regulates altruis- tic surrogacy and prohibits commercial surrogacy and import of embryos. Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after its birth. A gestational carrier is a woman who agrees to carry a genetically unrelated child on behalf of another individual or couple (intended parent[s]). The inten- ded mother provides the egg and the intended father provides the sperm; rarely, egg donors or sperm donors are involved. In-vitro fertilisation (IVF) is used to create an embryo, which is transferred into the uterus of the gesta- tional carrier. In countries which allow gestational carrier pregnancy, acceptable indications vary but generally include absent or non-functioning uterus, med- ical conditions that preclude safe preg- nancy, and established inability to either conceive and/or carry a pregnancy. As per the Surrogacy Bill, 2018, “alt- ruistic surrogacy” means surrogacy in which no charges, expenses, fees, remu- neration or monetary incentive of what- ever nature, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate moth- er or her dependants or her representa- tive. On the other hand, the Bill defines “commercial surrogacy” as commerciali- sation of surrogacy services or procedu- res or its component services or compo- nent procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trad- ing the services of surrogate mother- hood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surro- gate mother or her dependants or her representative, except the medical exp- enses incurred on the surrogate mother and the insurance coverage for the sur- rogate mother. Under the Bill, the following acts fall under the category of punishable offen- ces: (1) commercial surrogacy; (2) sell- ing human embryo for the purpose of surrogacy; and (3) import of embryo for surrogacy. Further, the import of embryos for surrogacy is a punishable offence with imprisonment upto 10 years and fine upto `10 lakh. Durai was importing the embryo, not for research purposes, and without a “no objection certificate” from the ICMR. His fate will be known when the Bom- bay HC takes up the matter on April 3. —The writer is President, Heart Care Foundation of India, and President-elect, Confederation of Medical Associations of Asia and Oceania Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Theembryowas allegedlyscheduledto bedeliveredattheIndo NipponClinic,Mumbai, runbyembryologist GoralGandhi.Theclinic hassofardenied anyinvolvementin thefiasco.
- 34. Probe/ Numerical Indexing of Evidence 34 April 8, 2019 HE legal system that we inherited from the British has continued for over seven decades. Procedural laws have not undergone changes to suit modern- day needs. Though we added new laws, many statutes did not have the lifespan of even a decade. Crime is a threat to freedom and democracy. Crime reduction is essential for stability, security and development of the nation. However, it (crime reduc- tion) cannot be achieved without an effective criminal justice system. There is a strong belief that the present system has failed to deliver and is likely to col- lapse if remedial steps are not taken immediately. The system is exhibiting signs of overload and lack of effective A New Report Card Theinadequaciesofthecriminaljusticesystemcanbeamelioratedbyagradingsystem ofevidencesothattheirpresentationincourtsismorescientificandtransparent By Dr RP Sharma COLLECTING EVIDENCE Police take the accused to the crime scene in a rape and murder case in Lucknow T Photos: UNI
- 35. | INDIA LEGAL | April 8, 2019 35 management. There are four essential prerequisites to generate faith in the criminal justice system. It should be efficient, effective, transparent and fair. Efficiency refers to the utilisation of resources in an optimum fashion to achieve the goals set by law and the Constitution. Effectiveness embodies the principle of a healthy balance between liberty and security, along with observance of the requirements of law towards achieving crime prevention besides punishing the guilty in a timely and cost-effective manner. Transparency is the fulcrum on which the accused, the victim and all other stakeholders exhibit their satisfac- tion. The satisfaction of all stakeholders is the bottom line in any transparent system. Fairness is the attribute of a transparent system. It should be amply demonstrated so as to build faith in a system. There is a demand to appoint more and more judges with the goal of dispos- ing of every case in this country within five years. It is true that speedy justice is important, but it is equally important to deliver judgments which reflect adjudi- cation on merit. There is a need to have a transparent and objective system with on-time justice delivery. It is also impor- tant to grade varying evidence found during investigation in a numerical for- mat and emphasise that every charge sheet put up for a trial carries a suffi- cient numerical score. The present system has many con- straints. Some of them are: Voluminous documentation in various court trials, which makes the system least penetrating in prioritising evidence Judicial time is mostly utilised in examining oral testimony and not scien- tific testimony The SWOT analysis of the criminal justice system will summarise the salient features for effective appraisal of the system. The existing reality is that even after prolonged and costly procedures, not even one-fourth of cases end in convic- tion. The rich often get away lightly and the poor are put to suffering and dis- crimination. Also, delay defeats justice and the offenders go unpunished; wit- nesses are threatened and have limited protection. Victims are often ignored and get no relief for injuries or losses suffered. Even registration of complaints becomes difficult without money or influence. An unholy nexus is perceived to prevail between criminal syndicates, politicians and law enforcement offi- cials, affecting criminal proceedings and the rule of law. On top of it, corruption has taken a heavy toll on the system. It is a fact that citizens want efficien- cy, accountability and zero tolerance against corruption. But how can this be achieved? Here are some suggestions: Criminal law reforms, both in sub- stantive as well as procedural laws Institutional reforms of police, prose- cution courts, prisons, etc Qualitative improvement of man and material in the criminal justice system. The criminal justice system has failed largely due to poor investigation and prosecution and lack of a system to evaluate evidence in a transparent fash- ion. Different standards are being used to decide different cases, which leads to subjectivity in the system. T he only way the legal system has grown is in the volume of liti- gants and cases. This has choked it. A sine qua non (essential condition) for a vibrant and working democracy is an effective and responsive legal system. Cases pending for years, judgments that are per incuriam, ignored precedents and the salutary principle of stare deci- sis or subjectivity frustrate citizens who lose faith not only in the legal system, but also in democracy. There has been a persistent demand for better infrastructure and greater manpower to deliver effective justice. Lack of adequate capital expenditure to create infrastructure to ensure a robust, responsive and effective legal system is one of the ills plaguing it. Setting up huge infrastructure will take time. So we need a system which needs less OVERLOADING OF CASES Queue at a National Lok Adalat organised by the district legal services in Mirzapur Thereisademandtoappointmore judgeswiththegoalofdisposingofevery caseinthiscountrywithinfiveyears.Itis alsoimportanttodeliverjudgments whichreflectadjudicationonmerit.
- 36. 36 April 8, 2019 infrastructure and is transparent. The satisfaction of the litigant does not come from only quick-fix justice delivery, but from transparent, reliable and effective service delivery. In their quest to find solutions to this problem, investigating and prosecuting agencies and the judicial system need to work coherently and simplify proce- dures. One of the ways to do so is nume- rical indexing of evidence. With minor modifications, this can also be introduced in civil laws. Num- erical indexing of evidence will make a small, subtle but significant shift to a “preponderant evidence system”, making the criminal justice system more objec- tive, transparent and less dependent on the whims of the investigating officer who may irresponsibly file a slip-shod charge sheet. Such charge sheets are not only a waste of precious judicial time in a system that is clogged with pending cases, but also indicative of the twin malaise of a criminal being acquitted on account of a sloppy investigation and a perfunctory charge sheet and an inno- cent being persecuted. T here is a crying need to create a grading system of evidence to enable the generation of a score card to make the gleaning of evidence and presentation in courts more scien- tific. This will make disposal of cases faster and transparent. In case the pros- ecutor finds that the score card attached with the charge sheet is without suffi- cient evidence, he can ask the investigat- ing agency to probe further. Similarly, in cases where the accused finds that impeccable evidence has been produced, he may “plead guilty” and ask for miti- gating the punishment. Thus, judicial time will be spent economically and judiciously and will be result-oriented. To make things simpler, some explanatory score indexes can be fol- lowed—for the cross-matching of DNA fingerprints with samples collected in ideal conditions, the score may be 10 out of 10. If judicial confession is not retracted, it may be 10 out of 10; the score could be six points for extra-judi- cial confession. This is illustrative only. However, numerical indexing of evi- dence requires in-depth study of various criminal cases, issues of perception of evidence and their admissibility. In simple words, charge sheets filed in courts are the summary of the state- ments made, evidences collected and expert opinion. The gravity of the evidence is seldom given priority. Numerical indexing is an effort to identify the evidence and pres- ent it in so simple a way that even a cur- sory reading would be sufficient to arrive at a conclusion. The procedure is only to make things simpler and the criminal justice system effective. —The writer is an additional Director General of Police Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Numericalindexingisanefforttoidentify theevidenceandpresentitinsosimplea waythatevenacursoryreadingwouldbe sufficienttoarriveataconclusion.The proceduremakesthingssimpler. THREAT TO SOCIETY A taxi driver accused of raping a customer being taken to court in New Delhi Probe/ Numerical Indexing of Evidence Numericalindexing ofevidence Strengths Limited training required Limited infrastructure needed Large involvement of witnesses Linked with rural traditions Weaknesses Too much reliance on statements of witnesses Scope for false statement is large Presenting evidence is not very easy Poor technical knowledge of the subject Lack of objectivity Lack of innovation Scope for interference (tutoring of witnesses) Hostile witnesses Opportunities Deposition tested on many stages Scope of investigation Threats Too much in favour of the accused Erodes faith in the system
- 37. BRINGING YOU THE STORIES THAT COUNT An ENC Publication To Stay Abreast With Today, Pick Up Yesterday’s India Legal Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends Nirav Modi: Luxury in exile J&K Offer: Rehabilitating militants Thispiquantquestionabout women’ssixthsensewas posedbyJusticeAKSikriinhis farewellspeech.Ananalysis byDrMohanGopal,former Director,NationalJudicial AcademyandformerV-Cof NationalLawSchool,Bangalore Should JudgesHave aFeminine Side? 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- 38. Global Trends/ Special Prosecutor Robert Mueller Probe 38 April 8, 2019 Everyone’s complicating the #MuellerReport. Look, it’s VERY simple. If it exonerated @realDonaldTrump, he’d have tweeted a link to it & insisted the Times publish it in full. Since he’s hiding it/desperately wants to keep you from reading it, it means he’s guilty.#QED — This tweet said it all regarding the Mueller report. SOOTHSAYER told the family of a very famous man that the tea leaves indicated that the health of the individual was ter- rible. The family asked: “May we see the tea leaves?” Not now, they were told. Maybe someday. That is the situation in America with Special Prosecutor Robert Mueller’s 21- month probe of President Donald Trump on the matter of collusion with Russians in the rigging of the 2016 US election as well as obstruction of justice. The tea leaves, in this case the Mue- ller report, are secret. Instead, two Tru- mp appointees in the Justice Depart- ment reviewed it to write a four-page summary, pronouncing that no collusion and no evidence of obstruction of justice can be charged. Yet, specifically, no exoneration of the president is possible, wrote Mueller. Attorney General William Barr, recently appointed by Trump, and his deputy, Rod Rosenstein, are the only senior officials known to have read Mueller’s report. Trump had his own lawyer read him Barr’s letter and he promptly went out and told journalists: “Complete exoneration.” Why Mueller declined to make a cha- rging decision on the president’s obs- truction and instead outsourced that decision to Barr and Rosenstein puzzled many experienced attorneys. What we can say with certainty is that journalists writing about this story have not seen the full report nor have members of Congress from either political party, at least not officially. Mueller, famously careful in his work as FBI director earlier in his long distin- guished career, has said nothing follow- ing Barr’s equivalent of a “Cliff Notes” study guide to a larger literary work. House Democrats with subpoena power want him to testify about what he wrote. The entire House of Representatives voted 420-0 to see the full report and wants it now. Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer pointedly wrote: “Given Barr’s public record of bias against the Special Counsel’s inquiry, he is not a neutral observer and is not in a position to make objective determina- tions about the report. For the president to say he is completely exonerated directly contradicts the words of Mueller and is not to be taken with any degree of credibility. Congress requires the full report and the underlying documents.” There had been much concern about Barr’s legal mindset when appointed a White House Whitewashing Thesecrecyaroundthe 21-monthinvestigationintoPresidentDonaldTrump’s collusionwithRussiansintheriggingofthe2016electionissurprisinganddismaying By Kenneth Tiven in Washington A COLLUSION DELUSION (Left) Special Prosecutor Robert Mueller; US President Donald Trump
- 39. | INDIA LEGAL | April 8, 2019 39 few months ago as attorney general to replace the fired Jeff Sessions. He wrote publicly last year that the special prose- cutor’s appointment was improper. As President George Bush’s attorney gener- al, Barr had recommended pardons for six Reagan Administration officials jailed for their part in secretly selling weapons in the Iran-Contra scandal in the 1980s. John Dean, former White House counsel to President Richard Nixon, who famously helped the government force Nixon to resign or be impeached in 1974, warned that Barr may be hiding something. Dean said: “Having re-read William Barr’s 2018 Memo critiquing Mueller’s investigation and now his summary of Mueller’s Report, it is clear that Richard Nixon would not have been forced to resign his office if Barr had been Attorney General. Barr wants a POTUS above the law.” W hile Mueller did not exoner- ate Trump of obstruction alle- gations, Barr said he and Rosenstein had together concluded there was not sufficient evidence to make that accusation against the presi- dent. But Dean found Barr’s conclusion and the phrasing curious. “He put a little lipstick on something that might’ve been fairly ugly. We haven’t really seen the underlying report, but I have some suspicions that the reason he boiled this down the way he did is because it’s not very attractive. (Mueller’s) words are very different than Barr’s, I suspect.” The Trump Administration now uses its interpretation of the Mueller report to claim victimisation by media and forces that oppose him. On the other side, many people believe Trump obs- tructed justice in open view, from the White House and on social media, and that Democrats didn’t more publicly hold him accountable. The legal microscope continues with more than a dozen other investiga- tions and lawsuits looking into the president, his businesses, his family and his associates. The most prominent case is managed by the US Attorney’s Office in Washing- ton against Trump confidant Roger Stone. He is charged with witness- tampering and lying to Congress about his communications with WikiLeaks. Justice Department lawyers in the Southern District of New York remain focused on payments that lawyer Michael Cohen made on Trump’s behalf to women with whom he allegedly had affairs. Cohen is about to start a three-year prison term for campaign and finance violations. Federal prosecutors in multiple offices have been looking into the record $107 million that Trump’s inauguration com- mittee raised and are asking questions about how it was spent. Prosecutors in the Southern District of New York are looking into potential donation wrongdoing related to a pro- Trump super PAC called Rebuilding America. The New York Department of Financial Services sent a subpoena to Aon, the Trump Organisation’s longtime insurance broker, principally related to how properties were valued. The New York attorney general is curious how several Trump Organ- isation projects, including an attempt to buy the Buffalo Bills football team, received massive loans from Deutsche Bank. Trump Foundation was sued in New York state for a “shocking pattern of ille- gality”. The Trumps agreed to dissolve the Foundation in December, but the lawsuit is still going on. The New York state tax department is looking into allegations of decades of property “tax schemes”. New York City officials have also said they are examin- ing Trump’s tax history. Federal and state investigators are looking into allegations that the Trump golf club hired illegal immigrant workers. There is a lawsuit involving a prohibi- tion on personally profiting from his position as president. A lawsuit by former lawyer Cohen for legal fees; he claims he is owed $1.9 million. Summer Zervos defamation suit against Trump for calling her a liar when the Apprentice contestant claimed he had sexually assaulted her. While it has triggered an industrial scale of legal work, by itself Mueller’s investigation resulted in 199 criminal charges, 37 indictments or guilty pleas and five prison sentences. The probe’s incredible secrecy seemed to raise expectations. However, to verify or dis- prove the material in the Steele dossier and the apparent Russian linkage and coordination was precluded within the time available. — The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels AttorneyGeneralWilliam Barr(left)andhisdeputy, RodRosenstein,arethe onlyseniorofficials knowntohaveread Mueller’sreport. The“nocollusion” summaryassessment wasmadebyBarr. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected]
- 40. States/ Tamil Nadu/ Public Property 40 April 8, 2019 N the run-up to the general elec- tion, the Supreme Court has issued a tough diktat to the Tamil Nadu government—take every step necessary to prevent deface- ment of natural landscapes and public buildings with political slogans and photographs of leaders of various political parties. On March 25, a bench headed by CJI Ranjan Gogoi pulled up the state gov- ernment for filing a counter affidavit which was “not in the spirit of March 8 order of the Supreme Court”. In its March 8 order, the apex court had exp- ressed serious concern over the issue and asked the state government to take all steps to prevent disfigurement and defacement of natural features like hillocks and hill faces, rocks, public installations and buildings with political slogans and photographs of politicians. The orders were passed on a special leave petition (SLP) filed by an organi- sation called In Defence of Environment and Animals (IDEA) against a March 3, 2017, judgment of the Madras HC on this issue. ‘Elephant’ G Rajendran, the managing trustee of IDEA and a practi- sing advocate of the Madras HC, repre- sented IDEA and approached the Mad- ras HC with a prayer seeking a direction to the Tamil Nadu government to pre- vent encroachments by anyone by any means including religious symbols and political graffiti, advertisements by pri- vate parties on natural resources like mountains, hills, hillocks, rubble, avenue trees and on the central median of national and state highways. IDEA had, in fact, filed this petition and the sub- sequent petitions on this subject in the Madras HC from 2006 itself, and the High Court had passed various orders from time to time and also formed a committee to take note of the grievances raised in these petitions. The peti- tions were finally disposed of on March 3, 2017, when the Madras HC said that suitable action has to be taken against persons who disfigure walls and natural resources. At the same time, the Madras HC also obs- erved the following: “But the manner in which the petitioner was making allega- tions against the political parties app- ears to be totally uncalled for. The peti- tioner must have self restraint with regard to his feelings, while exercising freedom of speech and expression. Making these sorts of allegations would rather waste the time of this Court and would abuse the process of law. Due to lack of official staff and other govern- ment machinery, it may not be possible for the state government to take steps immediately and it will take some rea- sonable time to carry out the exercise.” It was against this order that IDEA thought it fit to appeal in the Supreme Deface at Your Own Peril Inastatewhereelectionsareariotofcoloursandnoise,itremainstobeseenhowmuchofa differencetheapexcourtorderswillmakethistime By R Ramasubramanian in Chennai POLITICAL MESS A wall in RK Nagar assembly constituency in Tamil Nadu I Photos: UNI
- 41. | INDIA LEGAL | April 8, 2019 41 Court, and the apex court passed the March 25 order. The bench comprising CJI Ranjan Gogoi and Justices S Abdul Nazeer and Sanjiv Khanna told advocate Yogesh Khanna, representing the state of Tamil Nadu: “You (Tamil Nadu government) cannot allow the defacement of the en- tire environment with political slogans, pictures of politicians. This has to stop now.” The bench gave this direction on March 8 and gave the Tamil Nadu gov- ernment two weeks’ time to revert to the apex court on what action it had taken to stop defacement of the natural land- scape with political party colours, flags, advertisements, billboards, etc. The pet- ition has, along with the state of Tamil Nadu, arraigned the Union of India, the Chief Election Commissioner of India and general secretaries of political par- ties including the AIADMK, DMK, BSP, BJP, CPI, CPI(M), INC, NCP, and pollu- tion control board authorities, etc. Rajendran argued that the deface- ment was not restrained to one particu- lar place but could be seen on bridges, central medians of roads, highways, hills, rocks, etc. “Ninety percent of the ads are done by political parties. The concerned authorities have not taken any action and not come forward to pre- vent it. The authorities should travel to the places pointed out by me and see for themselves,” said Rajendran. E arlier, the Madurai bench of the Madras HC had, on March 22, banned political meetings in all urban centres of the state. The Court ruled that political meetings and rallies seriously affect public movement and also affect children and elderly people. Moreover, the public meetings of politi- cal parties also create hardship for the free and fast movement of ambulances and thus endanger the lives of people who are in urgent need of medical care. Though political parties at the top level have as of now desisted from react- ing to the two judgments, leaders at the middle level and cadres at the grassroots level have strongly opposed them. “I am surprised and saddened by these judg- ments. There is already a state govern- ment act which prohibits disfigurement of public places. But you cannot reach lakhs and lakhs of people only through print, television and online media. You have to use public places for popularis- ing your candidate. In a country like India where uneducated people consti- tute a vast chunk of our population, curbs like this will hamper political acti- vities,” said PV Kalyanasundaram, for- mer organisation secretary of the DMK. Echoing the same viewpoint, P Rajan, a political activist of a local Tamil nation- alist outfit, said: “Banning political ral- lies in cities and giving extreme consid- eration to protecting natural resources in the name of so-called environmental protection are nothing but elitist. In my view, these are all nothing but making politics and elections the sole domain of a select few.” Women activists, too, have criticised the orders. “Even in this age of television and Facebook and WhatsApp, nothing can replace the public rallies and public meetings wherein you can get the per- sonal touch. Now the judiciary is rob- bing that and it’s unacceptable. Banning rallies in cities in election season is against the spirit of democracy,” said a feminist who did not want to be named. But the police are happy. “Banning rallies in cities and urban centres min- imises our tension to a large extent. There is always palpable tension over the visit of high-profile leaders to Tamil Nadu and the required security blanket for them. Now this judgment is a huge relief because we can now function in an organised manner and thus ensure fool- proof security to the visiting VIPs of all the political parties who are facing seri- ous life threat. Moreover, this arrange- ment will eliminate the hardship for the common man,” said a senior police offi- cer overlooking the security arrange- ments for visiting VIPs to Tamil Nadu. But in a state where every election campaign is a riot of colours and noise, it remains to be seen how much of a difference the court orders will make this time. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] DEFACEMENT EVERYWHERE (Left) A theatre in Chennai disfigured by photographs of politicians and filmstars
- 42. States/ Karnataka/ Bengaluru/ Peripheral Ring Road 42 April 8, 2019 HE Karnataka capital’s Peripheral Ring Road (PRR) project has been lit- erally going around in cir- cles for a long time, with one roadblock after the other. Now the Supreme Court will hear on April 1, 2019, the appeal of the Bangalore Development Authority (BDA) against the National Green Tribunal’s (NGT) order. The green court had on March 14, 2019, restrained the Karnataka government from going ahead with the `17,000 crore eight-lane project on environmental grounds. Bengaluru, India’s Silicon Valley, is already bursting at its seams—almost eight million vehicles are choking its roads despite nearly four lakh people, on an average, using the Bengaluru Metro every day. So when work on the 72-km, `6,300 crore phase two of the project started, there were high hopes that it would to a large extent mitigate traffic woes. There were also plans to make a provision for a Metro line in the middle of the eight-lane PRR. Going Round in Circles WhetherthetrafficnightmareinBengaluruwilleaseornotdependstoalargeextentonthe SupremeCourt’sdecisiononthisambitiousprojectinApril By Stephen David in Bengaluru T Youtube ROAD TO NOWHERE (Above) The PRR project will decongest traffic and reduce air pollution in Bengaluru; an artist’s impression of PRR
- 43. | INDIA LEGAL | April 8, 2019 43 Bengaluru, considered In- dia’s tech hub, continues to attract people from all parts of the country because of its salu- brious climate. With the popu- lation already touching nearly 11 million in the 1,000-sq-km Bangalore metropolitan re- gion, the BDA has been plan- ning to add another outer ring road for the city, called PRR, for a long time. But it has been beset with one hurdle after another even as governments kept changing in the state. As chief minister, SM Krishna had roped in technocrat Nandan Nilekani to head the Bengaluru Agenda Task Force (BATF). Formed in 1999 during Krish- na’s tenure as chief minister, BATF was a public-private partnership that was to involve people from outside the govern- ment to bring in value additions to the governance of Bengaluru. The chief minister had even talked of developing the city on the lines of Singapore. Over the years, BDA and the Bruhat Bengaluru Mahanagara Palike—two key government agencies that oversee the development of the city—have been try- ing their best to keep pace with the city’s exponential growth. Karnataka’s deputy chief minister, Dr G Parameshwara, who is in charge of Bengaluru’s development, has already asked the city’s agencies to fast-track development projects while keeping environmental concerns in mind. T he NGT bench presided over by Justice Adarsh Kumar Goel had stayed the PRR project, stating that it will not proceed on the basis of environmental clearance granted on November 20, 2014. However, the BDA, represented by senior counsel Shyam Diwan and Sanjay Nuli, is hoping to get the much needed relief to go ahead with the PRR, which it says will help decongest the city. The matter is sched- uled to come up before a bench com- prising Justices DY Chandrachud and Hemant Gupta. Some days ago, a group of farmers— who stand to get attractive compensa- tion for parting with their lands for the PRR project—also launched a protest outside the BDA office to press for speedy execution of the project. Any further delay may impact the cost of the project. BDA officials aver that it will push up the costs further— anywhere from `1,000 crore to even five or six times of that figure. The current version of the PRR, based on a 2007 model, is already incorporated in the BDA’s 2031 masterplan which has received citizens’ inputs. Changes were made in PRR in 2010 but those have now been shelved. The private sector-built Nandi Infra- structure Corridor Enterprise (NICE) Road between Bengaluru and Mysore— promoted by Ashok Kheny—has absor- bed some of the heavy vehicular traffic. The NICE road project, built on a build-own-operate-transfer basis, sees nearly eight lakh vehicles plying on its 100-km tolled expressway. The BDA’s PRR project will be integrated with the NICE roads. The PRR project forms another cir- cle of the city, in addition to the Outer Ring Road, and is aimed at reducing the traffic snarls at major tech hubs, includ- ing Electronics City (India’s first stand- alone hub for infotech companies and home to Infosys, among others), Sar- japura (the headquarters of Wipro), Varthur, Whitefield, Hosakote and Kempegowda International Airport, close to Devanahalli. If the apex court gives the complete green signal in April, the 1,800- acre PRR project is expected to be completed within the next three to four years. Farmers and private land owners are happy to part with land due to attractive compensa- tion provided through better TDRs (Transfer of Development Rights) cer- tificate. In layman’s language, they can now build higher floors than what is normally permitted. If someone hands over 1,000 sq ft of land to the BDA for the PRR project, he will be given a TDR that permits him to build up to 3,000 sq ft in any other property he owns in the city. What makes it even more beneficial for the TDR holder is that it can be sold to other builders for cash. Even as BDA scouts for extra land and necessary clearances, work is under- way to complete a comprehensive land audit of all its properties. Paramesh- wara, the Bengaluru development min- ister, had set a deadline of March 2019 for the task. Several months ago, when he set the deadline, Parameshwara admitted that there was no clear picture on the extent of land under the control of the BDA. “So, the survey, a first of its kind, will be completed by March 2019,” he said. As early as 2015, BDA had identified encroachment on over 3,300 acres of its land. Chief minister HD Kumaraswa- my’s predecessor, Siddaramaiah, had plans to regularise that with a hefty fee but it fell through. With the election code of conduct in place, it is now left to the officials to push for the PRR project. Hopefully, the last word on the PRR project will be pronounced on April 1, 2019, so that it doesn’t end up going around in circles. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Asthechiefminister,SMKrishna(left) hadropedintechnocratNandanNilekani toheadtheBengaluruAgendaTaskForce. Hehadeventalkedofdevelopingthecity onthelinesofSingapore.
- 44. States/ Chhattisgarh/ Vanishing Forests 44 April 8, 2019 ASDEO Arand is one of central India’s last biodi- versity rich forests that is home to elephants. It also acts as a wildlife corridor. The region has a coal seam running under the hills spread over 1,70,000 hectares of rich tropical forests. When the thermal power poli- cies were revised in the new millennium to meet India’s rising power needs, it was decided that state electricity boards, then the major power producers, would be given the deposits. States like Delhi and Rajasthan which did not have any coal resources were allotted captive coal blocks in Chhattisgarh, Jharkhand and Bihar on a revenue/power sharing basis. But later, the private players jumped into the ther- mal power business in a big way around 2001-02 and ultra mega power projects were identified and signed. These power projects were given to big players like Reliance and Tata. Eventually, the state governments got wise and floated their own mega proj- ects of 600-2,000 MW for which they also reserved some of the identified coal blocks. For those willing to take the risk, power projects were the next big thing— subsidised land, assured water and cap- tive mines, and in most cases, an estab- lished infrastructure network. The play- ers had to generate power and sell it to state electricity boards at rates deter- mined by tariff commissions and usually agreed to by state governments. Things ran smoothly for a while for the mining industry till the noise over environment damage reached a crescen- do by 2010. That year, the environment ministry under UPA II classified nine “no-go” areas for mining and rejected proposals seeking clearance to open and operate coal mines. The Hasdeo Arand region had 30 coal blocks, and despite all of them being included in the “no-go” areas, the then environment minister, Jairam Ramesh, overruled an expert committee and gave clearance to mining in three blocks, which he claimed would be “the first and the last”. Two of the blocks, Parsa East and Kanta Basan, which received environ- mental clearances, had been allocated by the coal ministry in 2007 to the Rajasthan Vidyut Utpadan Nigam Limited, the state’s power generation company. However, private players entered through the back door—as mine operator or Mine Developer and Ope- rator (MDO). The state electricity boards formed joint ventures with pri- vate players—in this case Adani—to operate mines and supply them with coal at a predetermined cost and quanti- ty. Adani Mining holds a 74 percent stake in the joint venture company with Rajasthan Vidyut Utpadan Nigam Limited for these blocks. Strangely, this shareholding pattern has remained intact even after the Supreme Court judgment in 2014 can- celled all coal block allocations—includ- ing those allocated to public sector firms—and the centre passed a law in 2015 that restricted private ownership in such joint ventures to 26 percent. Adani has bagged mining contracts for Going, Going… Gone Forever? OnlyahandfuloflawsuitsintheSupremeCourtstandinthewayofoneofIndia’srichestforests beinghandedovertominingcompanieslookingtostriptheverdanthillsforcoal By Neeraj Mishra in Raipur H RICH HAUL With significant coal reserves, the Hasdeo Arand forest is a goldmine for miners Chitrangada Choudhury/ruralindiaonline.org
- 45. As Pradesh Congress president, Bhupesh Baghel had accused the Modi government of providing Adani backdoor entry to coal mining through MDO contracts. Now, four months later, it appears that the Chhattisgarh government’s power generation com- pany has selected the Adani Group to develop and operate two coal blocks: Gidhmuri and Paturia in Korba district. These lie in the same area which Rahul Gandhi visited in 2015 as part of his environment-related political tours. Among the four villages that will face displacement, if mining takes place, is Madanpur, the village where Gandhi made assurances to tribals that a Congress government will be more sensitive to their demands. Shailendra Kumar Shukla, chair- man of Chhattisgarh Power Gener- ation Company Limited, was quoted by the BBC as saying: “Bids had been invited (for the selection of the mine developer and operator for Gidhmuri and Paturia blocks) and the process stands completed. Adani and its allied companies were found suitable for this.” But he added that no agreement had been signed as yet. | INDIA LEGAL | April 8, 2019 45 four of the 30 coal blocks in the region. The coal ministry had originally allotted these coal blocks to state gov- ernment-owned electricity companies for captive use, which meant they could mine the coal strictly for consumption in their own power units. Apart from Parsa East and Kanta Basan, two other blocks—Parsa and Kente Extension— were freshly allotted in 2015 to Rajas- than Vidyut Utpadan Nigam Limited. A third block in the adjacent Gare Palma coalfields—Gare Palma III—was allotted to Chhattisgarh State Power Generation Company Limited. T he state electricity companies, however, had signed up the Adani Group as mine developer and operator to start and run the mines and supply coal to them at predeter- mined prices. These contracts are not available in the public domain and not accessible under the Right to Information Act. Therefore, it is no wonder that experts have expressed con- cerns over private companies being favoured over public interest. Stage II mining permissions in Parsa Block were given to Adani on February 21 as the date for the announcement of the model code of conduct for the Lok Sabha polls was nearing. It had already been given the first stage of clearance on February 16 and five days later came the stage II clearance. It is not yet clear whether the gram sabha has given its consent to mine the 841-hectare Parsa Block. The Environment Assessment Committee (EAC) had examined the case three times last year. In its meeting on February 15, 2018, the EAC had raised two important issues. One, it had asked the state government to furnish details of how mining will impact the local tribal population, and two, whether all permissions from the gram sabha had been obtained as required under the Forest Conservation Act. At the same time, it also asked the state wildlife warden to provide details about elephant corridor in the area. In two other meetings in July 2018, and September 2018, the Chhattisgarh government under pressure, as the assembly elections were round the cor- ner, provided details of wildlife corridors and the impact of mining on tribal life. But the EAC was still silent on the con- sent of the gram sabha. It seems that Adani was quickly granted the final clearance for mining Parsa Block which has an estimated capacity of five million metric tonnes of coal annually. There are other issues regarding Adani becoming the MDO. Activist Sudeep Shrivastava of Bilaspur has already filed a case in the Supreme Court to annul the agreement between Rajasthan Vidyut Utpadan Nigam Limited and Adani. There is also a legal view that the permission given in the past to open Parsa East and Kanta Basan blocks was on the basis of an understanding that the Parsa Main Block in the Hasdeo Arand area will not be open to mining. But Adani pressure seems to be working otherwise. Now all that remains for the Adani Group to start mining in the area is a final clearance by the forest department which usually follows the Stage I and II clearances. There is, of course, the small matter of the gram sabha consent being forged. But for now, it appears that only the Supreme Court can stand in the way of one of India's richest forests falling prey to private greed. OFFICIAL SANCTION Private players have taken over mines in the area with active support from the government Forkedtongue Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] UNI
- 46. States/ Kerala/ Defamation case 46 April 8, 2019 IKE many leaders of the party that he avowedly sup- ports, TV anchor Arnab Goswami is known to issue threats and spew venom against anyone or anything he doesn’t agree with. Instances are numerous and are not worth repeating here but a nasty comment he made dur- ing a channel discussion has landed the Editor-in-Chief of Republic TV in a bit of a bother. Last week, the Judicial First Class Magistrate’s Court in Kannur in north Kerala summoned him in a crimi- nal defamation case filed for allegedly humiliating Keralites and sought his presence before the court on June 20. The summons were issued on a com- plaint filed by P Sasi, CPI(M) leader and president of People’s Law Foundation, alleging that Goswami had termed Keralites “shameless people”, while debating whether the central govern- ment put spokes in the wheel on the plan of the UAE government to sanction `700 crore as flood relief to Kerala. “This group is shameless..., is the most shameless bunch of Indians I have seen, they have gone around spreading the lie religiously. I don’t know what they get for it. Whether they get paid for it? Do they get paid money for abusing their own country? Are they part of a group, who are they funded by? Point is that it is a conspiracy to malign India,” Gosw- ami had allegedly said in the context of protests amongst sections of Keralites against the centre’s decision to refuse permission to the state government to accept `700 crore aid from the rulers of the United Arab Emirates (UAE), where nearly a million Keralites live and work. The Centre’s decision had triggered debates in the state, and at every corner where people gathered, discussions cen- tred around whether the UAE had actu- ally offered the amount to Kerala, and the truth behind the Indian government blocking the largesse in the name of misplaced pride. While there was perceptible divide on the issue whether to accept it or not, there was also the question of whether the UAE had offered the money at all. There were rumours that the issue had been created by the ruling Marxists and their sympathisers in the media to point fingers at the centre for denying the people of the state largesse from a friendly foreign state. On August 18 last year, the ruler of Dubai who is also the prime minister, Sheikh Mohammed bin Rashid Al Maktoum, tweeted that his country had formed a committee for extending help to flood-affected people in Kerala. Soon, Chief Minister Pinarayi Vijayan said that the UAE rulers had personally inti- mated him about their plans to sanction `700 crore as flood relief. But a few days after Vijayan’s revelation, the Centre made it clear that financial aid from for- eign governments will not be allowed, in line with the existing government policy. Vijayan found in this the perfect opportunity to point fingers at the cen- tre. He, along with Finance Minister TM Thomas Isaac, blamed the centre for its “vindictive” attitude towards the state. Isaac went to the extent of saying that the centre had blocked the foreign aid while itself granting only a pittance for the state. The centre had sanctioned Merchant of Venom AKeralacourthassummonedArnabGoswamiforhisdisparagingremarksagainstthe peopleofthestateduringatalkshowheldintheaftermathofthedevastatingfloodslastyear By NV Ravindranathan Nair in Thiruvananthapuram Thesummonswereissuedona complaintfiledbyPSasi,CPI(M)leader andpresidentofPeople’sLaw Foundation,allegingthatGoswamihad termedKeralites“shamelesspeople”. L Twitter
- 47. | INDIA LEGAL | April 8, 2019 47 `3,728 crore as flood relief to the state besides offering to rebuild roads and other infrastructure facilities destroyed in the floods, as against the `21,000 crore needed. But some clarification was injected into the matter after a senior official in the UAE embassy stated that the Emi- rates had not officially announced any financial aid for Kerala flood relief. Without mentioning financial aid, UAE ambassador Ahmed Ahmed Albanna said that his government had only set up a national emergency committee to pro- vide relief assistance to people affected by the floods. The centre’s refusal to clear the scheduled foreign tours of all the state ministers to mobilise relief assistance from non-resident Keralites had angered the government as well as large sections of the state’s population. The centre decreed that only the chief minister could go on a fund-raising tour and that too only to the UAE and the United States. I t was against this backdrop that the TV channel discussion was held on the flood situation and the Kerala government’s allegation against the cen- tral government of sabotaging foreign aid. During the discussion, Goswami, in his characteristic style, went on a dia- tribe against a section of Keralites who were engaged in Modi bashing. There is something about the state and its politicians that riles Goswami, perhaps even vice-versa. He was sum- moned earlier by a court in Thiruvanan- thapuram in a criminal defamation case filed by Shashi Tharoor, the local MP, for statements he made on his TV show regarding the mysterious death of Sunanda Pushkar, Tharoor’s wife, who was found dead in a seven-star hotel in Delhi. These proceedings were later stayed by the Kerala High Court on Goswami’s petition. Earlier, the Delhi High Court had dismissed as not maintainable a petition moved by Goswami seeking to stop the registration of an FIR against him on a complaint made by Tharoor. The former Union minister had accused Goswami and the news channel of gaining illegal access to confidential documents which were part of police probe records and hacking his email account to access per- sonal emails and then broadcasting them on the news channel to increase its viewership. Tharoor, in his complaint, had stated that police had collected a number of documents and other material and these were part of case records and were sole- ly in the possession of the investigation team. He had told the court that “during several broadcasts, certain documents were shown on the news channel which were stated to be documents related to the investigation of the death of his wife. Such documents are copy of internal file notings of Delhi police, copy of state- ment of complainant given to the Delhi police…Arnab and his accomplices had illegally accessed those confidential doc- uments and broadcast them. He also accessed the complainant’s email account without his authority or consent and shared the personal emails on their news channel and even filed the materi- als and documents as part of their reply in Civil Suit before the High Court”. Using the RTI route, Tharoor found out that the documents the news chan- nel kept showing were not in the public domain. Based on this, Delhi Metro- politan Magistrate Dharmendra Singh in January ordered an FIR to be regis- tered against Goswami. If the TV anchor is increasingly seen in courts across the country in the future, never rule out a Kerala angle. UNI Goswamiwassummonedearlier byacourtinThiruvananthapuram inacriminaldefamationcase filedbyShashiTharoor(right), thelocalMP,forstatements regardingthemysteriousdeathof SunandaPushkar,Tharoor’swife. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] THE DELUGE AND AFTER Flood affected people move to safer havens in Thiruvananthapuram
- 48. Investigation/ Samjhauta Express Blast 48 April 8, 2019 T was nobody’s baby and unless the investigation agency was determined to expose the conspiracy be- hind the blast in Samjhauta Express, the case was bound to fail.” This is the shocking revelation of Vikash Narain Rai, a retired Director General of Police, Haryana, who led the initial investigations and cracked the case. However, the CBI Special Court at Panchkula acquitted all the accused ear- lier this month due to the failure of the National Investigation Agency (NIA) to “prove the charge of conspiracy”. Rai said it appeared that neither the NIA nor the government was interested in pursuing the case. There were hardly any stakes within the country as very few Indians were victims. The blasts took place in two unre- served coaches of the Lahore-bound Samjhauta Express on the night of February 18 in 2007. Out of 68 casual- ties, 43 were identified as Pakistani citizens, 10 were Indians and 15 re- mained “missing”. None of the residents of Panipat or even the region was killed. Initially, even the then ruling Cong- ress-led government pointed a finger of suspicion at elements from Pakistan. It was only after investigations were taken up by Rai and his team that it became apparent that those who planted the bombs were radical Hindutva activists. Fortunately, one of the bombs on the train failed to explode. According to Rai, it was this unexploded bomb that pro- vided vital clues to crack the case. It was dismantled by experts and even minor clues were followed up by the team. It was able to establish that the epicentre of the conspiracy, including preparation of the explosives, was Indore in Madhya Pradesh. The team spent a long time in the town and was able to pinpoint the shop from where the suitcases contain- ing the explosives, and other material used for preparing the device, were pur- chased. The team was zeroing in on the conspirators and had also found a link among similar explosions at some other places. However, under intense pressure to expedite investigations and draw up linkages with other blasts, the govern- ment decided to hand over the investi- gations to the CBI in 2008. It is believed that the CBI, following the same line of investigation as the Haryana Police, was closing in on the main suspects and their foot soldiers when Sanjay Joshi, a prime suspect, was mysteriously shot dead in July 2010. Investigating agen- cies were able to trace his close linkage to other blasts where Muslims were the targets. However, with his sudden death, several trails went cold. Soft on Hindu Terror Thegovernmentissoft-pedallingnumerousterrorcasesbyextremistHindugroups,leadingto theacquittalofmanyoftheaccused By Vipin Pubby in Chandigarh SHODDY PROBE? (Left) A special court in Panchkula has acquitted all four accused, including RSS pracharak Swami Aseemanand in the Samjhauta Express blasts; (below) the blasts took place on the Lahore-bound train on the night of February 18, 2007 I“ jantakareporter.com commons.wikimedia.org
- 49. | INDIA LEGAL | April 8, 2019 49 Even as the investigations were transferred to the newly formed Na- tional Investigative Agency (NIA), the scrutiny of Joshi’s mobile calls and exchange of messages led to the identifi- cation of Aseemanand and some others who were constantly in touch with him. They were picked up and put through intense questioning. A seemanand, who was known to be closely associated with extre- mist Hindu ideology, is believed to have confessed his involvement in the various blasts. He even gave a statement before a magistrate under Section 164, CrPC, that he was involved. He also parted with information which was highly sensitive and involved powerful leaders. Subsequently, he resiled from his statement given under oath, and admissible as evidence, and said it was taken from him under duress. The four acquitted were Aseemanand, whose original name is Naba Kumar Sarkar, Lokesh Sharma, Kamal Chauhan and Rajinder Chaudhary. Aseemanand has already been acquitted in Hyderabad’s Mecca Masjid blast case and the Ajmer Dargah blast case. Emerging from the courtroom, an elated Aseemanand raised pro-Hindutva slogans and claimed that he was being wrongly accused in the blast cases. As per the verdict, the chain of evidence could not be proven. NIA counsel Rajan Malhotra said it was a long-drawn trial with many of the witnesses turning hostile, leading to acquittals. However, it is evident that the Agency did not make sincere efforts or press charges against Aseemanand. The NIA had charged the accused with murder and criminal conspiracy, besides other relevant provisions of the Explo- sive Substances Act and the Railways Act. The charge sheet had stated that the accused were upset with the terror attacks on Hindu temples—Akshar- dham (Gujarat), Raghunath Mandir ON THE RIGHT TRACK IPS officer Vikash Narain Rai and his team led the initial probe and cracked the case Mecca Masjid blast On May 18, 2007, nine devotees were killed and 58 injured in a blast in Mecca Masjid in Hydera- bad (right). The case was handed over to the CBI and then to the NIA in 2011. The accused includ- ed Aseemanand, Sanjay Joshi, Lokesh Sharma, Devendra Gupta and others. All were acquitted by a Special Court on April 16, 2018. Ajmer Dargah case On October 11, 2007, a bomb ripped through the Ajmer Sharif Dargah (right), killing three and injuring 17. The case was initially investigated by the Rajasthan Police and handed over to the NIA in 2011. Among the accused were Aseemanand, Sanjay Joshi, Lokesh Sharma, Bhavesh Bhai Patel and some others belonging to organisations linked to the Sangh Parivar. A Special Court acquitted Aseemanand as well as some others, giving them benefit of the doubt, but convicted RSS pracharaks Bhavesh Bai Patel and Devender Gupta. Malegaon Cases In 2006 and 2008, there were two incidents of bomb blasts in Malegaon (right). However, the trial is yet to begin in both cases. Multiple charge sheets have been filed by the Maharashtra Police, the CBI and NIA. Besides Aseemanand, the accused in the Malegaon blast cases include Sadhvi Pragya Singh Thakur and Lt Col Purohit. While the Maha- rashtra Police and the CBI had charge sheeted nine Muslim men, the NIA had named Sunil Joshi and some others of the group for the 2006 blast. In the 2008 blast case, the NIA exonerated Sadhvi Pragya. The Court, however, rejected the NIA stand and arraigned her as an accused under the Unlawful Activities Act. Gorydeeds
- 50. 50 April 8,, 2019 (Jammu) and Sankat Mochan Mandir (Varanasi). It said that the accused had conspired to trigger the blast on the Pakistan-bound train, largely carrying Pakistani nationals, to avenge the spate of terror attacks in various temples in the country. As per the NIA probe, the accused were given training in Madhya Pradesh and Faridabad, in Haryana, for making bombs and firing pistols. The NIA charge sheet said Sunil Joshi was the mastermind of the blast plot with active help from the other accused, including Aseemanand. The explosives were stuffed in suitcases, which were planted in the train by Lokesh, Rajinder, Kamal and Amit, it said. However, the charge sheet could not prove that the accused had travelled from Indore to Delhi or that they had stayed in a dormitory at Old Delhi Railway Station. The NIA has taken the plea that they had travelled under false names and, therefore, the evidence could not be procured. A seemanand’s lawyer, JP Sharma, imputed political motives to the prosecution of his client. He said that the confessional statement was forcibly taken from him and used in var- ious cases. He said that no eye witnesses had identified Aseemanand or any of the other three accused, nor was he part of any conspiracy meetings. Incidentally, in almost all similar cases such as the Ajmer Dargah blast, the Mecca Masjid blast and the Male- gaon blasts allegedly involving radical Hindu activists (see box), there was the same group of accused with Aseema- nand as the ideological head and Joshi as the main conspirator. The BJP and other Hindutva organisations have strongly denied involvement of any Hin- du outfit and blamed Muslim terrorists for these blasts. Besides the death of Joshi, there have been other strange twists and turns in all such cases. Hours after acquitting all the accused in the Mecca Masjid blast case in August last year, the special NIA court judge of Hyderabad, K Ravinder Reddy, submitted his resignation to the Metropolitan Sessions Judge, citing per- sonal reasons which had “nothing to do with the Mecca Masjid blast judgment”. The blast had ripped through the over 400-year-old mosque during Friday prayers on May 18, 2007, killing nine and wounding 58. The NIA couldn’t prove allegations against any of the accused and all were acquitted. Back in June 2015, senior Mumbai prosecutor Rohini Salian had accused the government of asking her to “go soft” on Hindu extremists accused of a major terrorist bombing in Malegaon in 2008. She said that ever since the “new government came to power in the Centre, there has been pressure” on her to go soft on the group of extremist Hindus accused of the blast. All such related cases had become political and in the absence of interest or proper pursuit of investigations by the NIA, courts had to acquit the acc- used. Even as the trial in the Samjhauta Express blast case was on, it became clear that the NIA was soft-pedalling. Meanwhile, Union Home Minister Rajnath Singh has indicated that the government is unlikely to appeal against the Special Court order and that it was “buried” for the government. He told a news channel that the NIA was “a very credible investigating agency and as it had probed the matter and filed a charge sheet and a judgment has come, we should rely on that”. Rai said that while the NIA has been weakening the case, it had not changed the line of initial investigations. This proves that it did not have anything con- trary to the findings of the preliminary investigations about the group behind the blast. As of now, no one has been held responsible for the deaths and injuries in the Samjhauta Express blasts. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: [email protected] Investigation/Samjhauta Express Blast SEEKING REVENGE The accused, says NIA charge sheet, avenged terror attacks on temples (from left) Akshardham and Sankat Mochan Mandir Special Court judge Jagdeep Singh, who acquitted all the four accused in the Samjhauta Express blast case, has said that he was doing it “with deep pain and anguish” because a “dastardly act of violence” was going unpunished. In his order, the judge pointed out that the NIA “withheld the best evidence” which it did not bring on record. He also underlined that some of the “cited independent wit- nesses were never examined or sought to be declared hostile for cross-examination when they chose not to support the prosecution case”. Coming down heavily on the investi- gation agency, the judge said there “are gaping holes in the prosecution evidence and an act of terrorism has remained unsolved”. Abotchedupprobe
- 52. RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2017-19 website: www.apnlive.com APN AVAILABLE ON AIRTEL 328, TATA SKY 542, VIDEOCON 320, BIG TV 426, DEN 350, SITI 366, DIGICABLE 212, HATHWAY 223, NETVISION 215, NXT DIGITAL 772, MANTHAN 182, JIO TV