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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
India Legal 08 April 2019
Catch Us
Every Saturday at 8 pm
and Sunday at 2 pm
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.”
| 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: editor@indialegallive.com
Well-knownauthorandtop
investigativejournalistDanE
Moldeasaysthathisprediction
thatRobertMuellerandhisteam
willuseRICO,atoughracketeering
statute,againstTrumpandhis
stooges,hasbeenprovedwrong.
ContentsVOLUME XII ISSUE21
APRIL8,2019
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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
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:editor@indialegallive.com
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 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
Courts
| INDIA LEGAL | April 8, 2019 9
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
—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
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: editor@indialegallive.com
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
India Legal 08 April 2019
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
| 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?
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
| 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: editor@indialegallive.com
TheHighCourtheldthat“therightto
adequatehousingisarighttoaccess
severalfacetsthatpreservethe
capabilityofapersontoenjoythe
freedomtoliveinthecity”.
Anil Shakya
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
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 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: editor@indialegallive.com
Interview/ Sam Pitroda
| 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: editor@indialegallive.com
T
Theadvocatesfacing
suspensionare
enrolledwiththe
BarCouncilof
TamilNaduand
Puducherry.They
challengedthe
suspensionorder
intheMadras
HighCourt.barcounciloftamilnadupuducherry.org
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
| 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 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: editor@indialegallive.com
Courts/Foreign Nationals
JusticeAVChandrashekharahad
observedthatthereisnoeffective
co-ordinationbetweentheForeigners
RegistrationRegionalOfficeandthe
police,whichiswhymanyforeign
nationalsareoverstaying.
indiaolsons.blogspot.com
India Legal 08 April 2019
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
| 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: editor@indialegallive.com
InAugust2017,theincometaxdepartmentreportedlyseizedcopiesofformer
KarnatakaChiefMinisterBSYeddyurappa’sdiarypagesduringaraidontheresidence
ofDKShivakumar(right),aseniorCongressleaderinKarnataka.
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
| 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 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: editor@indialegallive.com
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
NATIONAL
OPINION
SURVEY
2 0 1 9
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
| 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: editor@indialegallive.com
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
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
| 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
anyinvolvementin
thefiasco.
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
| 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 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: editor@indialegallive.com
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
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019
India Legal 08 April 2019

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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: editor@indialegallive.com 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: editor@indialegalonline.com website: www.indialegallive.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ashok Damodaran Contributing Editor Ramesh Menon Deputy Editor Prabir Biswas Senior Writer Vrinda Agarwal Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualiser Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Team Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80, PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Senior Content Writer Punit Mishra (Web) 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:editor@indialegallive.com 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: editor@indialegallive.com —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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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: editor@indialegallive.com 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