India Legal 09 October 2017

1. InvitationPrice `50 NDIA EGALL STORIES THAT COUNT ` 100 I www.indialegallive.com Nirbhaya Fund: Criminal Lapse Courts: Adjournment Disease October9, 2017 Thepoliceassaultonthewomen-ledstudenteruptionhasinvitedwidespreadcriticismand highlightedgrowingdiscontentoverauthoritarianismand administrativebunglingonthe renownedcampussituatedintheprimeminister’sconstituency PLUS:LAWCOLLEGESONTHEBOIL h lli lt th ll dd t d t ti h i it d id d iti i d CALLOUS CRACKDOWN BANARAS HINDU UNIVERSITY

4. ustice Karanam Sreedhar Rao has rightly focused attention in his column in this issue of India Legal on the malignancy that has metastasised throughout our judicial system. It is an affliction known as pendency, a fancy word for interminable delays in the delivery of justice in both civil and criminal cases. Supreme Court Chief Justice Dipak Misra recently attributed this to what he called the “adjournment disease”. He was referring to a major flaw in the system which allows lawyers and judges and litigants to play fast and loose with it by escaping hearing dates when convenient, or using procrastinating tactics to defer ongoing cases to future dates. One painful example is of a company petition in the Karnataka High Court that is awaiting admission since 1985! Rao notes: In the Calcutta High Court, a civil suit is pending since 173 years. It was filed prior to the establishment of the Calcutta High Court 144 years ago. There are nearly 2.96 crore cases pending in subordinate courts and 5,000 judges are needed to tackle the pendency. In the High Courts, 31,16,492 civil cases are pending, out of which 5,98,631 go back over a decade; and 10,37,465 criminal cases are pending of which 1,87,999 have crossed the 10-year mark. Statistics are easy to gloss over, just so many numbers. But if you give a human face to every one of these numbers, you will see that this situation is not only tragic but also a damning indict- ment of the working of our constitutional government. The fundamental principle of the Rule of Law is to ensure speedy justice to all who need it. But the system seems unable or simply refuses to deliver it. Astonishingly, the malady has not been impervious to diagnosis and remedial pre- scriptions from government and the judges themselves. But the sickness refuses to go away. Analyses and recommendations are simply stuffed into bureaucratic drawers and forgotten. Law commissions have come and gone, judgments have been penned and delivered, but the harrowing, soul-destroying delays go on forever. The adjournment disease, an important contributor to the larger affliction, is not the only ailment that plagues the system. The Law Commission of India in its 77th report submitted about 40 years ago mentioned frequent adjournments as an important cause of delay. Though the Code of Civil Procedure provides that “no such adjournment shall be granted more than three times to a party during hearing of the suit”, Indian courts appear to pay scant heed. M ost people will be startled to learn that this scourge was present even in pre-Independence British India. Some of the high-level groups which investigated the causes include the Rankin Committee (1924); a High Court Arrears Committee under the chairmanship of Justice SR Das (1949) and a committee under Chief Justice Hidayatulla (1969). The work of this last committee was extended and later chaired by Justice Shah in 1972. It was known as the High Court Arrears Committee. The collective findings of various commissions and committees are well summarised by the International Journal of Legal Develop- ments and Allied Issues (Volume 2 Issue 6). The major factors as spelled out in this illuminating study are: Vacancies in Judiciary. From the Supreme Court downwards, the entire system is riddled with this deficiency. Part of it has been caused by the Executive-versus-Judiciary tussle over the Collegium-National Judicial Appointments Committee (NJAC) imbroglio. The stalemate was best summed up by former Chief Justice TS Thakur: “Vacancies in the judiciary, especially state High Courts, have become a national challenge, and efforts were being made to persuade MORE THAN JUST AN ADJOURNMENT DISEASEInderjit Badhwar Letter from the Editor J 4 October 9, 2017

5. the government to expedite the matter. We have been talking very often about pendency of cases in the courts.” Inadequate number of courts. The Law Commission of India in Report No 245 deals with the establishment of additional courts in elimination of delay and speedy clearance of matters. In fact, Imtiyaz Ahmad v State of UP specifically gave directions for creation of additional courts. Judicial officers unable to tackle cases involving specialised knowledge. Lack of specialised knowledge on the part of judges directly impacts the justice delivery system. With the advancement of science and technology, many new offences such as cyber pornography and cyber stalking have emerged. Abuse of Public Interest Litigation. Under the guise of PILs, petitioners often seek to pro- mote private or political vested interests, caus- ing consequent delays. For this reason, Justice Bhagwati cautioned against misuse of PILs in the landmark judgment Janata Dal v HS Chowdhari. Lack of adequate arrangements to monitor, track and bunch cases for hearing. This inade- quacy leads to an incalculable waste of time. Added to this is the frequent transfer of judges which retards the justice delivery system. Often, with no continuity available following a transfer or a bench-change, a new judge orders a de novo trial in which the wheel has to be re- invented at the cost of an enormous delay. Role of administrative staff of the court. If court babus under-perform or are derelict in their duty, they contribute to hampering a speedy trial. In addition, a large number of appeals also impede speedy disposal of cases | INDIA LEGAL | October 9, 2017 5 Photos: Prashant Panjiar Statisticsareeasy toglossover,just somanynumbers. Butifyougivea humanfaceto everyoneofthese numbers,youwill seethatthissitua- tionisnotonly tragicbutalsoa damningindict- mentofthework- ingofourconstitu- tionalgovernment.

6. Lackofspecialised knowledgeonthe partofjudges directlyimpacts thejusticedelivery system.Withthe advancementof scienceandtech- nology,manynew offencessuchas cyberpornography andcyberstalking haveemerged. because the courts are busy in disposal of the appeals backlog. Delay in serving of summons. People are naturally inclined to avoid summons. Add to this the lack of qualifications or knowledge of process servers, their negligence and lethargy. Very often, they fail to serve the summons in time, and are virtually free of proper supervi- sion. Delay in filing written statement. The law provides that “defendant should file written statement within 30 days from the date of service of summons on him”. But this provision is not followed in true letter and spirit. Defendants tend to prolong the matter. Non-appearance of parties on the day fixed for hearing. The provisions of CPC state that if both parties don’t appear on the day fixed for hearing, the suit can be dismissed. Consequen- tly, a plaintiff may file a fresh suit or the court may restore it. Non-compliance by judges of laid-out procedures. Trial judges often do not read in advance the pleadings of the parties. This leads to inordinate delays in framing the issues and proceedings in a proper and timely manner. Delay in investigation. In criminal cases, the role of the police is significant in the speedy disposal of cases. If a police officer completes his investigation in time, it will speed up the justice delivery process. This rarely happens. And delays in filing the charge sheet or the comple- tion report hamper speedy trials. Excessive Cross-examination. The Law Commission’s 77th report states that “sometimes questions are put to the witnesses in cross- examination which are unnecessary, slanderous and harassing. It is on such occasions it becomes necessary for the trial judge to control the proceedings”. The Indian Evidence Act also prohibits asking indecent and scandalous questions. The courts are also directed to forbid questions which intend to annoy or insult. Further, the Code provides that questions should not to be asked without reasonable grounds. Such unnecessary questioning wastes the time of the court. The role of a judge is extremely pertinent in supervising cross-examination. Practice of taking on a large case load. Scheduling too many cases on a day is not desir- able if there is no reasonable chance of their being taken up for hearing. The Law Commi- ssion observed: “In the matter of controlling the case diary and in fixing cases for each working day the trial judges discharge a very important duty. There is a tendency on the part of presiding judges to leave the matter of fixing dates to their readers and sheristadars (subordinate officers).” I n 2008, Common Cause, an NGO founded by HD Shourie, filed a writ petition before the Supreme Court in which it sought redressal for crores of Indian citizens “who are routinely denied justice because of its delayed and therefore, ineffective dispensation. It is to restore to them their fundamental and constitutional rights guaranteed under Articles 21, 14, 19 and the Preamble, and to enforce the constitutional obligations of State under Article 39A of the Constitution of India…. As a consequence of this, the petitioners fear that there has been a loss of public confidence in the judiciary, and an increasing resort to lawlessness and violent crime to settle disputes.” The petitioners stated that their motive in going to the apex court was to ensure that “public confidence in the judiciary (is) restored immediately, in order to arrest and reverse this negative trend”. The petitioners reiterated that over the past half century, various authorities such as the Law Commission, benches of the Supreme Court, eminent lawyers and judges, had identified problems in the judicial system, Letter from the Editor 6 October 9, 2017 LITANY OF CASES The humongous stack of files is indicative of the burden of litigation the Indian courts have to grapple with

7. reasons for delay in the dispensation of justice and specific measures to overcome delays and expedite the disposal of cases. The petitioners reminded the Court that the Supreme Court had recognised these problems and taken several initiatives such as passing directions in All India Judges Association (2002) 4 SCC 247 to increase judge-strength five-fold, to fill up existing vacancies by 2003, to create ad hoc posts and commensurate infra- structure by 2007, and yet these directions still awaited implementation. The Court had also passed directions in Sal- em Advocate Bar Association, Tamil Nadu Vs Union of India (UOI), (2005) 6 SCC 344, P Ramachandra Rao (2002) 4 SCC 578, Sham- bhu Nath (2001) 4 SCC 667, and Hussainara Khatoon, 1980 1 SCC 93, to strictly adhere to procedural laws laid down in the Code of Civil Procedure (CPC) and the Code of Criminal Procedure (CrPC) respectively, in order to ensure effective and timely disposal of both civil and criminal matters. “Yet many of these directions are not taken seriously, with the result that justice is delayed and denied to litigants. The Parliament has also, enacted several laws including amendments in the CPC 2002, and the CrPC through new or revised sections to streamline and rationalize procedures. The aim today, is to merely achieve strict implementation of directions and laws already laid down. Today therefore, the petitioners merely seek implementation of past directions by this Court and of laws that have already been enacted by Parliament “Many cases in India take up to 10 years for disposal and usually take far longer than the stipulated 6 months or 2 years for trials, resulting in enormous pendency. The pendency of cases in India, was about 3 crores in 2007. Although justice is meant to be ‘simple, speedy, cheap, effective and substantial’, yet it remains elusive to Indians, and one of the major reasons are these delays in the dispensation of justice.” This was stated by the petitioners a decade ago. The figures have not changed much since then. The effective implementation of many such recommendations is still pending, proving the adage that in India the more things change, the more they remain the same. PAINSTAKINGLY SLOW Lawyers mull over cases (left) as litigants wait for their turn in an open courtyard (above) at Patna High Court Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com | INDIA LEGAL | October 9, 2017 7

8. ContentsVOLUME. X ISSUE. 47 OCTOBER9,2017 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Saurav Datta Contributing Editors Ramesh Menon Parsa Venkateshwar Rao Jr Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writers Chandrani Banerjee Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualizer Rajender Kumar Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh Sales & Marketing Tim Vaughan, K L Satish Rao, James Richard, Nimish Bhattacharya, Misa Adagini Circulation Manager RS Tiwari Mobile No: 8377009652, Landline No: 0120-612-7900 email: 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. Editor (Content & Planning) Sujit Bhar Senior Content Writer Punit Mishra (Web) Technical Executive Anubhav Tyagi BHU: Hard Lessons The police crackdown on the women’s agitation highlights growing anger over authoritarian- ism and administrative bungling on the premier campus of Banaras, the PM’s constituency 16 LEAD Law Schools Turn Battlegrounds The campuses of some premier universities have descended into chaos as students fight it out with the managements over funding, administration and faculty 22 Who Cares for Women’s Safety? As the bench widened the scope of a petition seeking to curb offences against them, the shocking under-utilisation of the Nirbhaya Fund comes under the scanner SUPREMECOURT 26 8 October 9, 2017

9. REGULARS Followuson Facebook.com/indialegalmedia Twitter:@indialegalmedia Website:www.indialegallive.com Contact:editor@indialegallive.com Ringside .........................10 Delhi Durbar ...................11 Courts.............................12 Briefs........................14, 48 Media Watch ..................49 Satire ..............................50 Cover Design: ANTHONY LAWRENCE Cover Photo: GETTY IMAGES Media, Judge Thy Own The press’ reluctance to condemn a journalist for his mortifying tweets on the prime minister’s birthday exposes its double standards and lack of courage 40 Crisis of Credibility The Supreme Court collegium is under fire for transferring Justice Jayant Patel to the Allahabad HC, seen as a demotion 36 FOCUS Slaves in Our Midst Such is the lack of concern for bonded labourers that despite a law mandating a compensation of up to `3 lakh for them, no one has received the amount 42 RIGHTS | INDIA LEGAL | October 9, 2017 9 MYSPACE Retrograde Jurisprudence Two recent rape verdicts have been criticised for referring to the victims’ character and the lack of a definite “no” from their side 30 COURTS That’s the letter that sums up what’s hap- pening in the US under the Trump presi- dency. It is also the highest grade one can give for his performance GLOBALTRENDS 46D Is for The Donald Three for Sorrow While two MP judges have been sacked for breaching the two-child norm, many more like them are allegedly in service 34 The Adjournment Malady Urgent efforts have to be made by judges and lawyers to speed up disposal of cases in order to shore up the judiciary’s image COLUMN 38

10. 10 October 9, 2017 “ RINGSIDE A hard landing appears inevitable. Bluff and bluster is fine for the hustings, it evaporates in the face of reality. The prime minister claims that he has seen poverty from close quarters. His finance minister is working over-time to make sure that all Indians also see it from equally close quarters. —Finance Minister during NDA-I, Yashwant Sinha, on the state of Indian economy today, in The Indian Express Don’t blame us for Haqqanis or the Hafiz Saeeds. These were the people who were your dar- lings just 20 to 30 years back. They were being dined and wined in the White House and now you say go to hell Pakistanis because you are nurturing these people. —Foreign Minister Khawaja Asif, addressing the US during the 72nd session of UN General Assembly in New York I support the vice chancellor in this matter because it looks like a naxalite movement, which means they wanted to enter the vice chancellor’s office and there they would have conducted violence. — BJP leader Subraman- ian Swamy, on the unrest in the BHU campus, speaking to ANI I may not agree with their ideologies, but I respect those who believe in their ideologies. In politics, it is not opposing ideologies that is the problem, but the absence of it. —Union Minister Nitin Gadkari, at the Townhall event organ- ised by The Week and Mojo in Delhi You derived immense pleasure in ridiculing other political parties and their leaders, but when tables are turned on you, police force is being asked to intervene. —Shiv Sena leader Raj Thackeray, criticising the BJP for spreading hatred and misinforma- tion on social media, in a Facebook post The grand coalition has been voted out. This government has been unelect- ed, and you, chancellor, are the biggest loser. —Michael Schultz of SPD, hitherto the partners of Angela Merkel’s party CDU, on German election results in which Merkel’s CDU returned to power with a reduced 33 percent vote, in Deutsche Welle The most difficult job in India is to be an honest politician. An honest politician suffers the most and I have experienced it. —Congress vice-president Rahul Gandhi, interacting with a group of entrepre- neurs in Rajkot during his Gujarat tour

11. | INDIA LEGAL | October 9, 2017 11 An inside track on happenings in Lutyen’s Delhi Delhi Durbar ECONOMY DICTATES POLITICS While the law ministry is formulating a new law to ensure that Aadhaar data is secure, bureaucrats involved with the exercise have been collecting complaints against the UID card. Among them is one from Shailesh Gandhi, former Central Information Commissioner. His thumbprint was not found to be authentic by the system to vali- date his Aadhaar identity from the database when he filled forms at his bank! Similar complaints have apparently surfaced from across the country leaving many in the law ministry to wonder if biometric data had been accurately recorded in the first place. In which case, would it have to be recorded all over again? Perhaps, the UIDAI bosses need to provide an explanation Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com That the government is wor- ried about the downturn in the economy was reflected in the BJP’s massive National Executive meeting staged last week in the capital. It is normally attended by members or special invitees but this time, all elected repre- sentatives of the party, 1,400 MLAs, 337 MPs and MLCs from all states were called and told to focus on economic issues when they return to their respective con- stituencies or assembly seats, to counter the attacks by the Opposition. The key issues they were told to focus on was the anti-corrup- tion drive, pro-poor measures like distribution of LED bulbs to cut down power bills, the `16,000 crore outlay to provide power to every village for free. They were told to focus on economic stimu- lants being prepared by the newly-formed Economic Advisory Council and the positive impact of reforms like demonetisation and GST that will be reflected in the coming months when the economy recovers. Call it superstition, past experience or sheer coincidence, but Prime Minister Narendra Modi seems to have taken a liking to officials who are named Rajiv or Rajeev. The former Union Secretary Finance and later Home, Rajiv Mehrishi, who retired last August, has just been appointed as Comptroller and Accountant General of India (CAG), a post that is on par with a judge in the Supreme Court. His replace- ment as Home Secretary was also a Rajiv, as in Rajiv Gauba. Another key position, head of the Intelligence Bureau, also happens to be a Rajiv (Jain). Last week, following the shakeup at Niti Aayog, the task force set up to provide a major thrust to job creation is headed by the think-tank’s vice-chairman, Rajiv Kumar. Another key task force member is Rajeev Kher, former Secretary, department of Commerce. For those who say what’s in a name, here’s the answer. These are taxing times, quite literally. It is now an established trend for critics of this government to suddenly receive income-tax notices or worse, raids by IT officials. NDTV was the classic example, but there have been others, and now we have one more, Harsh Mander, the well-known human rights activist and former bureaucrat. Less than a week after he launched a campaign, Karwan-e-Mohabbat, to show solidarity with victims of communal violence across India, he was slapped with an income-tax notice for the think-tank he runs, the Centre for Equity Studies. A day before the notice, Mader was scheduled to pay homage at the site where Pehlu Khan had been lynched by gau rakhsaks, a move that the Bajrang Dal, Hindu Jagran Manch and VHP vociferously opposed. Rakesh Sinha of the RSS had also gone on a news channel to claim that Mander was anti-RSS and said on air that the funding of Mander’s organisation would be investigated. The IT notice arrived four days later. TAXING TIMES IDENTITY CRISIS POWER OF A NAME

12. BSP MLA from Mau Sadar in UP, Mukhtar Ansari has been acquitted in a double murder case due to lack of evidence. A local court in Mau also acquitted seven others in the case, while convicting three others—Raju Kannojia, Amresh Kannojia and Arvind Yadav—to life imprisonment. At the time of acquittal, Ansari was lodged in Banda district jail. The case pertains to the murder of a contractor, Manna Singh, who was attacked in City Kotwali police station area of Mau district when he was travel- ling in his SUV with his associate, Rajesh Rai, on August 29, 2009. While Manna Singh died on the spot, Rai succumbed to injuries after two months. The police filed a chargesheet against 11 persons, including Ansari. He had allegedly got Manna Singh killed because of his refusal to give Ansari a commission in a contract. Though Ansari has been acquitted in this case, he has other cases pending against him and will remain in jail. The Delhi High Court ordered Delhi University to admit a general category student, Manmeet Kaur Sareen, to the LLB course at Law Centre 2, as a scheduled tribe (ST) seat was going vacant. The order was passed by Justice Indermeet Kaur. Manpreet had scored 231 marks, securing 1,342 position, whereas the last cut-off in the general category was 233. She had approached the High Court with a plea that as some reserved category seats were going vacant, she should be given admission. Delhi University, while informing the Court that there were 14 vacant seats in the three law centres, cited rules which said that vacant seats could neither be carried forward to the next year nor converted to general category. But the judge observed that justice would not be served if an available seat went vacant. Honeypreet's bail plea rejected Courts The Delhi High Court dismissed an anticipatory bail petition of Honeypreet Insan, adopted daughter of Dera Sacha Sauda chief Ram Rahim. Honeypreet, who has been charged with inciting violence after Ram Rahim’s arrest, has been evading arrest. Ram Rahim had been sentenced to life imprisonment in two rape cases, and there was widespread violence in Sirsa district, where Dera Sacha Sauda has its headquarters, and Panchkula, where the sentence on Ram Rahim was passed by a special CBI court. It’s alleged that Honeypreet had instigated the violence following the sentence. Rejecting the bail plea, Justice Sangita Dhingra Sehgal said the intention behind filing the plea in Delhi was to delay proceedings in a Panchkula court. Justice Sehgal added that “the easiest way out is that you surrender”. The counsels for Delhi and Haryana police also opposed the bail plea, pointing out that she was trying to hood- wink the court by giving a wrong address of a Delhi property. 12 October 9, 2017 “Give ST seat to general category student” The case of 10-year-old rape survivor who had delivered a baby took a new turn when the member secretary of the Chandi- garh State Legal Services informed the Supreme Court bench of Justices Madan B Lokur and Deepak Gupta that the DNA sample of the child did not match that of the accused. The rape survivor had delivered a baby after being denied permission to abort the fetus as it was more than 20 weeks. The member-secretary informed the Court that another person had now been arrested and his sample sent for forensic examination to two different labs. The Court requested the laboratories to expedite the process of the test report. DNA mismatch Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com — Compiled by Meha Mathur Mukhtar Ansari acquitted

14. Briefs Senior advocate and founder of Human Rights Law Network, Colin Gonsalves, has been awar- ded the 2017 Right Livelihood award. The announcement was made at the International Press Centre at the Swedish Ministry for Foreign Affairs by Ole von Uexkull, executive director of the Right Livelihood Award Foundation, and Maina Kiai, jury member and former UN special rapporteur on the right to freedom of peaceful assembly and association. According to the press release of Right Livelihood Award Foundation: “Colin Gonsalves is recognised by the jury for his tire- less and innovative use of public interest litigation over three decades to secure fundamental human rights for India’s most mar- ginalised and vulnerable citizens.” Gonsalves is a graduate of the Indian Institute of Technology, Bombay, and switched to law and enrolled at the Bar in 1982. Colin Gonsalves wins Right Livelihood Award Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com —Compiled by India Legal Team EDattachesKartiChidambaram’sassets Central government doctors to retire at 65 Small enterprises, which are facing difficulty in complying with the procedures linked to invoice and returns under the Goods and Services Tax Act, should be allowed to file quarterly returns while the tax pay- ment may be monthly, West Bengal Finance Minister Amit Mitra has said. In a letter to Finance Minister Arun Jaitley, Mitra mentioned the diffi- culties being faced by ex- porters and asked him to consider changes in the new refund rules. “For those having a turnover not exceeding `75 lakh, we need to bring in a concept of quarterly return,” Mitra wrote. He added: “Further, these taxpayers may be allowed to raise a single invoice or bill for both exempted and taxable supplies.” Mitra, who was chairman of the empowered committee of finance ministers, has urged Jaitley to issue cor- rective measures to protect small and medium enterprises even as several segments of the export sector are experiencing a slowdown. The Enforcement Directorate has attached `1.16 crore of assets related to Karti Chidambaram. In a statement, the agency said that Karti’s father and former finance minister, P Chidambaram, had “bypassed” rules to approve a 2006 Maxis-Aircel investment deal during his tenure. Chidambaram, however, said that the accusations were a “crazy mixture of falsehoods and conjec- tures”, and that the ED’s press note was intended to “intimidate” him. In the press note, the ED said that the finance minister was competent to accord approvals to proposals of up to `600 crore, but Chidam- baram cleared the `3,500 crore deal bypassing the Cabinet Committee on Economic Affairs by showing it as an `180 crore investment. The agency said that a company promoted by Karti and a nephew of P Chidambaram received approx- imately $2,00,000 from a Maxis Group company for a legal compliance software. “Let small traders file quarterly returns” 14 October 9, 2017 The retirement age of central government doctors has been raised from 60 to 65 years. Law and Justice, and Infor- mation Technology Minister Ravi Shankar Prasad said the decision was taken at a cabinet meeting presided over by Prime Minister Narendra Modi. The move follows the government’s earlier one in July of raising the retirement age of medical officers working in central armed forces like the CRPF and BSF to 65 years. The superannuation age of specialist medical officers of the central armed police forces and Assam Rifles has also been increased from 60 to 65 years. However, the new age-limit will not apply to Central Health Service doctors. The decision is aimed at addressing the shortage of doctors.

16. Lead/ Campus Unrest/ Banaras Hindu University 16 October 9, 2017 Hard LessonsHowdidoneofIndia’spremieruniversitiesdescendsoquicklyintochaosandviolence? Acomprehensiveanalysisofwhatwentwrongandwhoisresponsibleforthemess By Puneet Nicholas Yadav

17. HERE are many ironies about the events that unfolded in Banaras Hindu University (BHU) over the past week. That the police companies—largely com- prising male personnel —stormed into the BHU campus and its girls’ hostels to mercilessly beat up students and at least two lady wardens a day after the PM’s aborted attempt of visiting the varsity T | INDIA LEGAL | October 9, 2017 17 WHAT WOMEN WANT: (Left) Girl students of BHU confront the police force following an incident of molestation on the campus; (above) Congress and Swaraj Abhiyan activists assemble at Jantar Mantar in Delhi to condemn the lathi-charge at BHU campus from where he and his party began their victory march at the hustings, is only one such irony. That the incident happened in the Lok Sabha constituency of a PM who never tires of hammering the nation’s electorate with his Beti Bachao, Beti Padhao slo- gan is another. The police brutality against the girl students of BHU isn’t just about the ironies. It is indicative of a much larger problem—turning institutions of learning into personal fiefdoms for the spread of regressive ideologies. At the core of the crisis lies the suppression of individ- ual and collective freedoms that are the hallmarks of any modern university. THE GENESIS On the face of it, the recent goings-on in BHU seem like a simple case of administrative failure. A girl is allegedly mol- ested and files a complaint. Several other girl students claim that there are frequent incidents of sexual harass- ments on the varsity campus. The girls raise obvious demands—the vice-chancellor should listen to their grievance, more CCTV cameras and better street lighting should be installed in the campus. The vice-chancellor, Girish Chandra Tripathi in this case, doesn’t bother listening to the complaints and when the girls persist with their protests, the might of the police is unleashed on them. In the meanwhile, reports of institu- tionalised gender-discrimination, ques- tionable appointments to key posts in the varsity—including that of a rape convict being made the varsity hospital’s medical superintendent, etc. begin to tumble out. The V-C decides to dig in his heels claiming he has done no wrong, dismisses a case of molestation as “simple eve teasing”, terms the protest as the handiwork of “outside, anti-social elements”, and suggests that he “can’t listen to every girl on the campus”. Getty Images UNI

18. Tripathi told APN, a sister concern of India Legal: “I have always listened to the grievances of the girl students but it is not possible to listen to what every girl says. We have close to 40,000 students living inside the BHU campus but there are also nearly one lakh outsiders who come to the campus or stay in and around it. The campus is spread across 1,300 acres. I have spoken to the girl who had filed the molestation complaint and to others who have reported about incidents of eve-teasing and even these girls do not agree with the kind of protest that is being witnessed in the university campus.” Nonetheless, his lack of any action regarding the molestation case on his campus could make him complicit in this crime. The situation has continued to wors- en. The varsity’s chief proctor, Onkar Nath Singh, was made to take moral responsibility and resign. The first-ever woman chief proctor—Royana Singh— was appointed a day later. The Union human resource development ministry began leaking reports that the V-C will retire as scheduled, on November 27, but may be asked to “go on a long leave” until then. This pretty much sums up the events of the past week at BHU. But dig just a little deeper to find out how things were allowed to reach such a pass and the real story begins to unravel. DEGENERATION OVER TIME Professor Dipak Malik, former director of BHU’s Gandhian Institute of Studies, believes that the events that unfolded at the central university last week were “the result of a natural progression of the degeneration that had begin to set in decades ago”. While Malik says that “the immediate problems that one sees in BHU are largely the result of the manner in 18 October 9, 2017 “BHUhasseenallits democraticbodiessys- tematicallydemolished overthepastfew decades.Thereisno students’unionor teachersassociationfor checksandbalances.” —ProfDipakMalik, ex-director,Gandhian InstituteofStudies,BHU “Theadministrationand theV-Csimplydon’tcare aboutthestudentsany- more.Theywantgirlsto staylockedupintheir hostelswhilelumpen elementsareallowedto runriotinthecampus.” —KashinathSingh, formerprofessorofHindi literatureatBHU “Ihavealwayslistened tothegrievancesofthe girlstudentsbutitis notpossibletolistento whateverygirlsays.We havecloseto40,000 studentslivinginside thecampusbutthere arealsonearlyonelakh outsiders.” —GCTripathi,V-C E stablished in 1916 by Hindu Mahasabha leader Pandit Madan Mohan Malaviya, Banaras Hindu University (BHU) is among the world’s largest residential campuses with nearly 40,000 students staying inside a sprawl- ing 1,300-acre area. A central university, BHU attracts students from across the country and serves as one of the main educational institutions in Purvanchal. It has a `760- crore annual budget and boasts of 14 faculties, 140 departments and six institutes, including an Indian Institute of Technology. However, instead of adopting the celebrated ethos of Banaras—one of the world’s oldest cities to have been con- tinuously inhabited—the varsity has been criticised for promoting gender discrimination, casteism and regional- ism. This, even as the University can boast of reflecting the same diversity as the city which gives the institution its name. In BHU, one sees students from nearly all regions, castes and linguistic groups. Yet, in recent years, the varsity has attracted criticism which it did during the early years it was founded—alle- gations of pandering to a patriarchal mindset, promoting Brahmins and Thakurs over students of other castes and favouring people from UP—especially Allahabad—in appointments. The University, which had RSS founding member MS Golwalkar as its student and later also a faculty member, has in recent years had senior staff members—including current vice- chancellor GC Tripathi—openly flouting their RSS links. The BHU V-C seems to have repeat- edly endorsed the institution’s discriminatory practices that prevent girls from seeking equal opportunities as boys. Tripathi seems unwilling to acknowledge incidents of sexual harassment—includ- BetrayalofHistory Lead/ Campus Unrest/ Banaras Hindu University The ancient city associated with religious fervour has also witnessed regressive trends

19. which the current V-C, who closely subscribes to the regressive and patriarchal ideology of the Sangh Parivar, has been running the varsity’s affairs”, he also insists that “the rot had set in much earlier”. “Unlike institutions like the Jawahar- lal Nehru University or the Delhi Uni- versity, BHU has seen all its democratic bodies systematically demolished over the past few decades. There is no students’ union, no teachers association to maintain checks and balances. The writ of the vice-chancellor and his/her political masters sitting in Delhi (the BHU V-C is appointed by the centre through the HRD ministry) runs large,” says Prof Malik, whose association with BHU dates back to nearly five decades. BHU alumnus Shatrudra Prakash, who is also a Member of the Legislative Council (MLC) from the Samajwadi Party, blames the entire episode on vice- chancellor Tripathi and the “patronage he receives from the BJP and RSS”. He says: “Ever since Tripathi took over as V-C, he has handed over the running of the university to a coterie of Brah- mins and people from Allahabad (Tripathi’s native place) who also subscribe to his narrow-minded ideology which he has imbibed from the Sangh Parivar. The proctoral board is full of people handpicked by the V-C on the basis of their caste, affiliation with the RSS and BJP or those who belong to Allahabad. As many as 400 posts in the varsity have been outsourced to non- BHU staff by Tripathi”. Prakash says that while the V-C had blamed “BHU outsiders” for last week’s violence, “it is actually Tripathi who gave free access to non-BHU faculty and students to enter the university campus”. The senior SP leader alleged that in the past two years, incidents of eve-teasing, molestation and harassment had shot up within BHU and that “those involved in these activities are mostly outsiders who continue to come to the campus as and when they wish”. Prakash’s allegation is backed by at least five girl students that India Legal spoke to. “There have been at least 20 cases of eve-teasing on the campus over the past two months and our repeated efforts to get the V-C to act on these complaints have been futile. Instead, restrictions are imposed on us. Girls aren’t allowed to stay out of their hostel beyond 8 pm (6 pm in case of some hostels). While boys are allowed to have non-vegetarian food in their hostels, girls have to stick to vegetarian food. We can’t use our mobile phones after 10 pm and, if caught doing so, then we are made to put our phones on speaker mode,” says Pratyusha (name changed), a resident of the Triveni hostel complex. Girls at the varsity also claim that if members of the BHU proctoral board do agree to listen to complaints of sexual harassment or eve-teasing, the grievance-redressal forum often turns into a platform for shaming victims. “The only job of the proctors—who have an | INDIA LEGAL | October 9, 2017 19 ing molestation of a girl. He dismissed these as “simple eve-teasing”, something that under the Indian law, post the Nir- bhaya guidelines against sexual harassment and violence, can be construed as complicity in hushing up a crime against a woman. Through more than 4,000 years of its documented history, Banaras has always been hailed as a microcosm of civilisa- tion. Its relevance in Hindu mythology as the city founded by Lord Shiva, the land of Raja Harishchandra’s sacrifice or its connection with the sacred River Ganges, are often talked about. The fact that it is here that Gautam Buddha is said to have delivered some of his earliest sermons or that Guru Nanak came here during his quest for founding Sikhism are all well- documented. Yet, all this seems to be lost on the BHU of today. UP accounts for sending the largest number of prime ministers to parliament, but this is the first time that one has been elected from Varanasi. As the University descended into anarchy last week, Prime Minister Narendra Modi—who had kick- started his election campaign in April 2014 from the Lanka Gate of BHU— was prevented from visiting the Durgakund temple in the campus. His route was diverted when he arrived in the city a day before lathis rained on the varsity’s girl students. This speaks volumes about the chaos that BHU has found itself mired in. —Puneet Nicholas Yadav GATEWAY TO THE PAST: The entrance to BHU campus, which had an illustrious past but now courts controversies wikimedia/ kuber patel

20. the first time in the 100-year history of BHU that girls have risen up in protest against injustice meted out to them. The administration and the V-C in par- ticular simply don’t care about the students anymore. They want girls to stay locked up in their hostels while lumpen elements are allowed to run riot in the campus.” Professor Singh adds: “The V-C is petty minded, has no vision for the institution and is known for pandering to the whims of the RSS. He has been building his personal fiefdom, appoint- ing people to key posts not on their merit but because they are Brahmins or hail from his native town of Alla- habad or have connections with senior BJP leaders.” Endorsing the claim made by BHU students who called the resignation of chief proctor ON Singh a “farce”, Pro- fessor Singh says: “The moral responsibility for the incident rests with the V-C and he should have resigned. Instead, he has chosen to shamelessly carry on. This spoils the reputation of the university which only last year completed 100 years of its establishment.” VIOLATION OF LAW Not allowing girls to step out of their hostel after 6 pm or 8 pm or denying them other facilities which are available to their male counterparts is not just oppressive but also a blatant violation of their constitutional rights and several other legal provisions laid down by the University Grants Commission (UGC) and the All India Council for Technical Education (AICTE). annual budget of `16 crore—now is to carry out moral policing and to catch couples who move together. Girls have had to even give in writing that they are guilty of moving with their friends and will never do so in the future,” says Mineshi Mishra, a final-year Psychology (Hons) student at the university. NOT NEW TO BHU Denial of equal rights to girl students isn’t a recent development at the university. In fact, it is something that can be traced back to the days when the institution was founded by Hindu Maha- sabha leader Pandit Madan Mohan Malaviya. Malaviya’s reservations against women seeking gender parity are well-documented, as are his views that endorse the supremacy of Brahmins in India’s caste system. It was this ideology that in the formative years of BHU saw renowned poet and writer Mahadevi Verma being denied admission to the MA, Sanskrit course, ostensibly on account of her being a woman and a non-Brahmin. In later years, while BHU adminis- trators like Dr S Radhakrishnan, Acha- rya Narendra Deva and Triguna Sen tried to introduce some reforms aimed at introducing greater gender parity and eliminating discrimination on the basis of caste, regional and linguistic differ- ences of BHU students, many of these measures didn’t always reach their intended conclusion. These divisions have clearly resurfaced in recent years. Celebrated writer and former professor of Hindi Literature at BHU, Kashinath Singh, points out: “This is 20 October 9, 2017 MineshiMishra,afinal-year Psychology(Hons)studentatthe university,saystheonlyjobofthe proctorsnowistocarryoutmoral policingandtocatchcoupleswho movetogether.Girlshavehadto giveinwritingthattheyareguilty ofmovingwiththeirfriendsand willneverdosointhefuture. Article 14 of the constitution clearly prohibits any discrimination on the basis of sex. Similarly, AICTE and UGC rules expressly state: “Concern for the safety of women students must not be cited to impose discriminatory rules for women in the hostels as compared to male students. Campus safety policies should not result in securiti- sation, such as over monitoring or policing or curtailing the freedom of movement, especially for women employees and students.” However, the BHU administration seems inclined towards pressing ahead with a patriarchal agenda that places unreasonable restrictions on girls. Prof Malik believes that the “sys- temic failure” and “betrayal of the trust that girl students and their parents have placed in the university” are a direct fallout of BHU turning into a “labora- tory where the likes of Tripathi want to create ideologically narrow-minded individuals like themselves instead of students of academic brilliance”. Predicting worse times to come, Prof Malik says: “Fascism has taken roots in our institutions of learning and BHU is a prime example.” That may be a bit of an exaggeration but the hard lesson from the BHU fiasco is that it takes just one man in a position of power to des- troy the reputation of one of India’s most prestigious universities. —With inputs from Lilly Paul BHUalumnusandSPleader ShatrudraPrakash feelsthatever sinceGirishChandraTripathitook overasvice-chancellor,hehas handedovertherunningofthe universitytoacoterieof Brahminsandpeoplefrom Allahabadwhosubscribetohis narrow-mindedideology. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Lead/ Campus Unrest/ Banaras Hindu University

22. AW schools are turning into battlegrounds, casting a shadow over the educational standards of the next gener- ation to join the legal fraternity. Students in a number of National Law Universities (NLUs), prestigious nurseries for any law aspi- rant, have been on strike and clashed with the police and the administration, Lead/ Student Unrest/ Legal Education 22 October 9, 2017 leading to chaos and casualties—one vice-chancellor was forced to resign. September witnessed protests in at least four NLUs—Guwahati, Ranchi, Lucknow and Vizag—which were demanding an Institute of National Importance (INI) status, similar to IITs and IIMs. At the National University of Study and Research in Law (NUSRL) at Thepastfewmonthshaveseensomepremierlawuniversities descendintochaosastheadministrationandstudentsbattleit outoverfunding,infrastructureandfaculty By Chandrani Banerjee L Lawless Law Campuses PUSHED TO THE BRINK (Above) students protesting at RMLNLU, Lucknow; (top) banners at NUSRL, Ranchi Photos: Twitter

23. | INDIA LEGAL | October 9, 2017 23 Ranchi, a recent protest called by the students’ union went on for more than 10 days and ended only on September 20. An earlier protest in April had demanded a complete administrative overhaul, including the ouster of then vice-chancellor, BC Nirmal. It was called off only after a temporary V-C, Gautam Chaudhary, replaced Nirmal. However, the students made it clear that they would protest again if there was no improvement in the management of the law school. Similar protests in Guwa- hati National Law University and Judicial Academy (NLUJA) last May, forced the police to storm the campus, armed with shields, batons, barricades and water cannons. These signs of lawlessness are worry- ing for India’s NLUs, which were set up as premier institutes on the lines of IITs and IIMs. Over the years, things seem to have deteriorated and complaints by student bodies have multiplied. These range from lack of services, recruitment issues and poor faculty. Most of the problems have arisen in NLUs in the so- called Tier-3 cities, giving credence to the view that legal education institutes are expanding too fast without the cor- responding control on quality and infra- structure, including well-trained faculty. The result: simmering discontent has bubbled over. The constant discord between the administration and the students has also put a question mark on the tag of “excellence” given to these institutions. Students are selected through a tough Common Law Admission Test (CLAT) and only the best and brightest get in. That image has taken a beating with the rise in violence and administrative failures. ASSAM PROTESTS At the Guwahati National Law Univ- ersity and Judicial Academy, where clashes between students and police erupted last May, a third-year student told India Legal: “The issue stems from the administration’s apparent reluctance to provide students services that they have charged as a part of the annual fee. There was no university campus till February 2017. It is only after protests and blocking the cavalcade of the Chief Justice of Guwahati High Court, Ajit Singh, that action was taken and a new campus came up. This is the case with most of the newly formed NLUs. We will fight till we get INI status.” NLUs have been divided as per loca- tion and are situated in Tier-1, Tier-2 and Tier-3 cities. Those in Tier-3 cities are managed either by the chief minister of that state or the respective high courts. Therefore, funds are not from the central government and the state has to look after their functioning. This, allege students, has often led to mal- administration and malpractises. In Ranchi, the situation has not improved despite the V-C being replaced. In late August, students alleged in a letter to the administration, that the promises made earlier were cos- metic, so a sit-in protest near the campus gates culminated in a verbal alterca- tion between the V-C and around 200 students. The students demanded CCTV footage of the faculty recruitment process due to the poor standard of the teachers there. Chaudhary refused, after which a major confrontation took place. The police was called and patrolled AWAITING JUSTICE Protesting students at NUSRL, Ranchi Thelawlessnessisaworryingsignfor India’sNLUs,whichweresetupas premierinstitutesonthelinesofIITs andIIMs.Overtheyears,thingsseem tohavedeterioratedandcomplaintsby studentbodieshavemultiplied.These rangefromalackofservices, recruitmentissuesandpoorfaculty.

24. 24 October 9, 2017 of a National Law University, and that the last two recruitments of teachers had led to the appointment of highly incompetent candidates. They also claimed that funds allotted to the University had been used as per the whims and fancies of the administrative officers and not in the interests of the the campus. Meanwhile, the Jharkhand High Court intervened and authorised the police to use force to clear out the protestors. Several of them were also arrested. One of the protestors, a fifth-year student, said: “We were manhandled by the police. Water cannons were used to dis- perse the students.” LUCKNOW VARSITY PROBLEMS Similar problems have cropped up at Ram Manohar Lohiya National Law University (RMLNLU) in Lucknow. Here, too, there have been demands for the removal of the V-C. In September, the students sent a signed complaint to Chief Minister Yogi Adityanath where they alleged sexual harassment of male and female students by two senior administrative officers. They demanded the immediate removal of Vice-Chancellor Gurdeep Singh, registrar Shambhu Kumar, joint registrar JD Gangwar and assistant registrar Sanjay Diwakar, and an inquiry into the issue. They also alleged that the quality of teachers was nowhere near the standard students. Also, they alleged that the budget allocation for various committees catering to student interests was highly arbitrary, hampering their development. Time and again, they say, unreasonable monetary penalties were imposed on the students. Plus, the University faced a huge cri- Lead/ Student Unrest/ Legal Education AstudentattheGuwahatiNational LawUniversityandJudicialAcademy saidthatitisonlyafterprotestsand blockingthecavalcadeoftheChief JusticeofGuwahatiHighCourt,Ajit Singh(above),thatactionwastaken andanewcampuscameup. StudentsofRamManoharLohiya NationalLawUniversity,Lucknow,sent asignedcomplainttoChiefMinister YogiAdityanathwheretheyalleged sexualharassmentofmaleandfemale students,anddemandedtheremovalof theV-C,GurdeepSingh(above).

25. | INDIA LEGAL | October 9, 2017 25 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com sis on the placement front and the administration had offered no cooperation or funds to facilitate this. RMLNLU spokesperson Alka Singh told India Legal: “There is an urgent need to look into the demands put forward by the students. NLU is a premier institute and students who have come to the college, beating the tough entrance exam, should get the desired satisfaction from it.” VIZAG ISSUES Similar problems also surfaced at the Damodaram Sanjivaya National Law University, Vizag. The university was fighting for its campus since 2008 and got it a year back. The campus witnessed protests. Support for the students’ cause has also come from Guwahati NLU and Amity Law School, Lucknow. Also, the Students Bar Association of National Law School of India University, Bangalore; Student Bar Council of NALSAR, Hyderabad and Student Juridical Association of Kolkata NLU have come forward and issued a statement expressing solidarity with the protesting students. A joint statement said: “The recent unfortunate turn of events at the National University of Study and Research in Law (NUSRL), Ranchi, have starkly highlighted the problems plaguing all National Law Universities, old and new alike…. “The lax attitude of their administration is regrettable. The mismanagement of university funds robs these students of their legitimate aspirations of availing even basic amenities that are expected of a public university.” What the students are demanding seems reasonable enough. They include annual publication of audit reports, appointment of a financial officer, setting up of a school review commission, permission for formation of a students’ union and increase in funds. Unless these problems are tack- led, legal education in the country will suffer. AttheNationalUniversityofStudy inResearchandLawatRanchi,a protestcalledbythestudents’unionin Septemberdemandedacomplete administrativeoverhaul,includingthe ousterofthethenVice-ChancellorBC Nirmal(above). DOWNWARD SLIDE (L-R) Premier institutes like IIT, Kharagpur, and IIM, Ahmedabad flourish while mainline law universities are grappling with unrest. For securing admission to law universities through CLAT, candidates take extensive coaching, a costly proposition successaheadeducation.cominsideiim.com

26. T was a double whammy which the centre could well have avoided in the Supreme Court. On August 1, it suffered the ignominy of having to pay `25,000 as fine for its failure to submit an affidavit in time before a bench which was monitoring its steps to prevent and compensate victims of sexual assault. The fine was to be deposited with the Supreme Court Legal Supreme Court/ Nirbhaya Fund 26 October 9, 2017 Services Committee, as directed by the bench of Justices Madan B Lokur, Prafulla C Pant and Deepak Gupta. And when the centre did submit an affidavit, after paying up the fine, the Court found it guilty of non-application of mind and obfuscation in preparing it. Although the centre retrieved the situation by agreeing to submit a better affidavit before the next date of hearing Astheapexcourtwidensthescopeofapetitionseekingeffectivestepstocontainsexual offences,theunder-utilisationofthisFundcomesunderscrutiny By Venkatasubramanian IMASS UPRISING The Nirbhaya rape incident led to angry demonstrations all over the country Insulting Her Memory

27. | INDIA LEGAL | October 9, 2017 27 on October 4, the contents of its first affidavit left it vulnerable to criticism from civil society and the Court for the manner in which it dealt with the safety and security of women in the country. The case in which the centre’s hastily drawn affidavit exposed its lack of pre- paredness is Nipun Saxena v Union of India, being heard since 2013. Nipun Saxena, who had filed his petition as a law student, is now a young lawyer. He sought effective steps to ensure security for women in public places, the establishment of a Criminal Injuries Compensation Board and a ban on the two-finger test to check the virginity of rape survivors as it violates their dig- nity. Apart from the one filed by Saxena, the Court has tagged five other peti- tions, making similar prayers, to be heard together. One of the shocking disclosures from the centre’s affidavit was that more than 90 percent of the `3,100-crore “Nir- bhaya Fund”, announced by the Union Ministry of Finance, following the Nirbhaya incident in Delhi in 2012, is yet to be utilised since 2015. According to the affidavit, the centre has sanctioned just `264 crore—8.5 percent of the earmarked funds—till August 2017. T he Nirbhaya Fund is a dedicated fund for implementation of initiatives aimed at enhancing the safety and security of women in the country. It is a non-lapsable corpus fund. It was set up with a corpus of `1,000 crore during 2013-14. An amount of `1,000 crore was provided in 2014-15, and for the financial years 2016-17 and 2017-18, an amount of `550 crore for each financial year was provided. The corpus, transferred to the public account for the Nirbhaya Fund, up to 2017-18 is `3,100 crore. The Ministry of Women and Child Development (MWCD) is the nodal ministry to appraise schemes under the Fund and also review and monitor the progress of sanctioned ones in conjunction with other ministries and departments. On October 26, 2015, an empowered committee of officers—an inter-ministerial committee—was con- stituted under the chairmanship of Secretary, MWCD, for appraising and approving various schemes/projects by the ministries/departments to be funded from it. Till July 21, the committee had appraised and recommended 22 proposals amounting to `2,209.19 crore. These proposals of different ministries/ organisations are at various stages of implementation. Of the 21, seven have been proposed by the ministry of home affairs, one each by the ministry of railways, and ministry of electronics and information technology, two by MWCD, two from Andhra Pradesh and one each from Rajasthan, Haryana, Gujarat, Uttarakhand, Karnataka, Madhya Pradesh, Uttar Pradesh and Odisha. The MWCD initiated three schemes from the fund—“One Stop Centre”, Universalisation of Women Helpline and Mahila Police Volunteer. Popularly known as Sakhi Centres, the One Stop Centre scheme is being implemented across the country since April 1, 2015. It aims at establishing centres to provide first aid, medical help, police and legal assistance and counseling to women affected by violence. The scheme aimed to set up 186 such centres by July this year, even as the government claimed that 79 of them had become operational in February. The Department of Telecommunica- (L-R)ThebenchofJusticesMadanBLokur,PrafullaCPantandDeepakGuptaslapped afineof`25,000onthecentreforfailuretosubmitanaffidavitbeforeabench monitoringitsstepstocompensatevictimsofsexualassault.Aftertheaffidavitwas submitted,theCourtstillfounditguiltyofnon-applicationofmindinpreparingit.

28. Supreme Court/ Nirbhaya Fund 28 October 9, 2017 to be compensated and at what stage the compensation has to be paid. The bench, it appears, clearly understood that there is a distinction between acceptance of proposals from different agencies and the actual sanctioning of amount for the purpose of implementation, on which there has not been much progress. For the setting up of One Stop tions (DoT) allocated 181 as the Women Helpline number to all states and Union Territories. The centre claimed that it has released funds to 33 states and UTs to make the Women Helplines operational and link them to the One Stop Centres. In February, the government claimed that these helplines were operational in 18 States and UTs. Other schemes being funded by the Nirbhaya Fund include Mahila Police Volunteers, Emergency Response Sup- port System, Central Victim Compen- sation Fund and the Integrated Emergency Response Management System of Railways. A lthough these schemes look fine on paper, the gap between them and their implementation made the Supreme Court express its displeas- ure on September 23. It said: “An unhappy state of affairs prevails on the issue since there is a lot of confusion in the absence of clarity on who is respon- sible for paying compensation to sexual assault victims, and at what stage it has to be paid.” The bench of Justices Lokur and Deepak Gupta further observed that there is no system on how the funds have to be disbursed, how victims have Centres, for instance, the government has released just `64.11 crore instead of the proposed `120 crore. Senior counsel, Indira Jaising, ami- cus curiae in the case, has submitted to the Court that there is no uniformity in disbursal of funds to the victims. She brought out the disparity by suggesting that in Goa, the amount is `10 lakh, while in some other states, it is only `1 lakh. The centre, she claimed, had transferred `200 crore under the Nirbhaya scheme to each state, but there is no clarity on whether this was a one-time transfer or annual procedure. T he Supreme Court expressed its concern over the involvement of multiple agencies in the implementation of projects meant to be financed from the Nirbhaya Fund. Although MWCD is considered the nodal ministry for the management of the Fund, the empowered committee draws officials from other ministries because of various dimensions of the Fund. In the absence of coordination between them, it is likely to lead to confusion on who is involved and what is their responsibility. The Supreme Court found the centre’s affidavit wanting in details such as state-wise number of victims of sexual assaults and the amount of compensation given to them. Besides disparities in the victims’ compensation schemes of state governments, the bench is also concerned with the absence of any provision for interim compensation to the victims in most states, absence of effective witness protection schemes, etc. The Supreme Court’s orders, in this case, will hopefully translate into better results on the ground. SeniorcounselIndiraJaisingsubmitted totheCourtthatthereisnouniformityin disbursaloffundstothevictims.Whilein Goa,theamountis`10lakh,insome otherstates,itisonly`1lakh. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A FRIEND IN NEED Sakhi Centres are meant to provide first aid, medical help, police and legal assistance to women affected by violence

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30. Courts/ MP/ Dismissal of Judges 30 October 9, 2017 HEN lawyers Ashraf Ali and Manoj Kumar were selected in May this year as additional district judges (trainee) by the Madhya Pradesh government through lateral entry, they would not have expected that their services would be short-lived. But that is what happened, as within two months of their posting, the administrative committee of the Madhya Pradesh High Court declared them ineligible for the job and recommended their dismissal. The judges had flouted the two-child rule that makes state government employees ineligible for service if their third child is born after January 26, 2001. Manoj Kumar was posted in Gwalior and Ashraf Ali in Jabalpur. The committee in its meeting in July had recommended to its full bench the termination of the service of these trainee judges under Rule 9C of the Madhya Pradesh Higher Judicial Service (Recruitment and Condition of Service) Rules, 1994. In 2000, the rules were amended to bring in the two-child policy. The amended Rule 6(5) thus states: “A candidate shall be eligible for appointment only when, as per amendment brought about by the Government of Rule 6 of Madhya Pradesh Civil Services (General Conditions of Service) Rules 1961, dated 10-03-2000. (a) A male candidate is not married before 21 and a female candidate before 18 years of age. (b) The candidate doesn’t have a third offspring after 26th of January 2001.” MP RULES And on July 26, the full bench of the Court presided by the chief justice endorsed the administrative committee’s recommendation. The matter was for- warded to the law and legislative affairs department for action. After terminating the services of the Stork’s Untimely Visit Whiletheservicesoftwojudgeshavebeenterminatedforviolatingthetwo-childnorm,there areallegationsthatmanymoresuchviolatorsareservingthestate By Rakesh Dixit in Bhopal W Anthony Lawrence

31. | INDIA LEGAL | October 9, 2017 31 trainee judges, the department issued a gazette notification quoting sub rules 5 and 6 of Madhya Pradesh Civil Services (General Condition of Service) Rules, 1961, that say trainees are not eligible for service or recruitment if they have more than two living children, one of whom is born after January 26, 2001. “Services of additional district (trainee) judge at Gwalior, Manoj Kumar, and additional district (trainee) judge Ashraf Ali, posted at Jabalpur, stand terminated,” HC registrar general Mohammed Fahim Anwar said. “The action was taken for having violated the two-child norm.” In Manoj Kumar’s case, the administrative committee found that he had not furnished information in the requi- site form that he had three children and one of them was born after January 26, 2001. It was only after Kumar was posted at Gwalior as fourth additional district judge that he informed the Madhya Pradesh High Court that he had three children. The Court, in turn, referred the matter to the administrative committee. When India Legal sought his reac- tion, Kumar declined to comment. A lawyer from Ghaziabad, Manoj intends to resume his legal practice, according to sources close to him. Ashraf Ali, the second dismissed judge, had allegedly concealed information about his third child born after January 26, 2001. The High Court received an anonymous complaint about Ali having three children. Ali was unavailable for comment. WHISTLE-BLOWER This is the first time that the MP government has dismissed judges for flouting the two-child policy since it came into force 16 years ago. Although the administrative committee had recommended the judges’ termination in July, the law department dilly-dallied in accepting the recommendation. Action against them swiftly followed after a suspended additional district judge, RK Srivas, wrote a letter to the President of India on September 10. In his letter, Srivas alleged that at least 15 additional district judges in Madhya Pradesh had flouted the two-child policy but neither the MP High Court nor the state government had taken any action against them. Srivas had created a scene in the Madhya Pradesh High Court principal bench in Jabalpur by sitting on dharna in front of the court premises in July. He alleged that the Court was victimising him by transferring him frequently for highlighting injustice in the judiciary. The High Court subsequently suspended him for gross indiscipline. Undeterred, Srivas later drove a bicy- cle from Neemuch, where he was posted, to Jabalpur to highlight his demands. He also wrote a five-page letter addressed to the president, the prime minister and the chief justice of India. One of the 12 points he raised in the memorandum highlighting “injustice prevalent in the MP high court” was violation of the two-child policy by judges. Incidentally, the previous case of termination of government employees in the state for violating two-child policy also pertains to the lower judiciary. Three peons, posted at Damoh district court, were sacked on the charge of violating the two-child norm. Citing Section 6(6) of MP Civil Services Rules, 1961, district and session judge Anjuli Palo sacked the three—Kalyan Singh Thakur, Chanda Thakur and Lalchand Burman—on June 23, 2016. The sacked peons too had demanded a similar inquiry across the state. They alleged that if a similar inquiry was held across the state, lakhs of government employees would be found violating the two- child norm. Sources in the law department admit that there might indeed be many viola- tors of this norm. “Now that judges have been terminated, similar complaints are likely to pour in against others who have had a third child after January 26, 2001. The action is likely to open “a can of worms,” said a senior officer in the law department. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com A MAN OF GRIT Action against the judges was taken after suspended additional district judge, RK Srivas (left), wrote to the President of India Srivasallegedthatatleast15 additionaldistrictjudgesinMP hadfloutedthetwo-childpolicy butneithertheMPHighCourtnor thestategovernmenthadacted.

32. Courts/ Rape Verdicts 32 October 9, 2017 Information Report (FIR) was also condoned, as it was reasoned that a survivor would take time to recover from the trauma caused by rape, and would require the support of her family and friends to make a complaint to the police. Section 155(4) of the Indian Evidence Act, for instance, was repealed by parliament because it enabled the defence to bring evidence of “general immoral character” of a rape survivor. Judgments by high courts in two Tworecentjudgmentscameinforcriticismasreferencesweremadetothecharacterofthe victimsandthelackofadefinite“no”fromtheirsidetogiverelieftotheaccused,thereby settingbackprogressmadeinjurisprudenceinsuchcases By Venkatasubramanian The March Backwards HE Supreme Court in a plethora of cases in the 1990s, had ruled that the sole testimony of the raped survivor is sufficient to convict an accused. Thus, sexual history of the survivor which suggests that she might be promiscuous or lack of injuries on her body which could imply absence of resistance to rape, and therefore consent, were considered to be irrelevant. In many cases, delay in filing the First T FIGHTING IT OUT Red Brigade members on dharna in Lucknow, demanding steps to check violence against women UNI

33. mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world”. The High Court then offered a bizarre justification for why the accused deserved to be released on bail. It said: “The testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adven- turism and experimentation in sexual encounters and these factors would, therefore, offer compelling reasons to consider the prayer for suspension of sentence favourably particularly when the accused themselves are young and the narrative does not throw up gut wrenching violence, that normally pre- cede or accompany such incidents.” | INDIA LEGAL | October 9, 2017 33 recent cases have, however, tended to ignore this remarkable progress in jurisprudence in coming to the aid of rape survivors. In Vikas Garg v State of Haryana, decided on September 13, the Punjab and Haryana High Court released three rape accused on bail after questioning the testimony of the survivor. The three accused were students of Jindal Global Law School, Sonepat, while the survivor was a student of the Management School of OP Jindal University. A trial court had found all the three guilty of gang rape and sentenced two of them to 20 years, and one to seven years imprisonment. Two of them had completed a jail term of more than two years, while the third was about to complete two years in jail. Their appeals were pending before the High Court. In the normal course, it is not open for appellate courts to examine evidence in order to determine whether the convicts deserved bail during the pendency of their appeals. But the High Court observed: “A perusal of the statement of the victim as also her cross-examination reveals a promiscuous relationship and sexual encounters with all the three accused persons over a period of time and at no stage, did she ever make any attempt to reveal her mental state to either the authorities in the college or to her parents or her friends.” SOCIAL AND MORAL SCRUTINY The High Court justified reproducing her statement and her cross-examination in extenso to gain and give an insight into the “immature but nefarious world of youngsters unable to compre- hend the worth of a relationship based on respect and understanding”. The High Court concluded that the entire “crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships DIFFERENT STROKES While the Nirbhaya case (right) set a trend for tightening rape laws in favour of the victim, in the elite OP Jindal University (below) case, questions were asked about the woman’s assumed “consent” and social behaviour

34. 34 October 9, 2017 victs found guilty of heinous offences like rape, the bench offered one more bizarre reasoning to justify bail: “We are also of the opinion that the pendency of the appeal, ironically may work as a guarantee to prevent a repeat resulting from the fear of incarceration in the event of failure of the appeal.” Can the appellate court offer similar reasoning to grant bail to convicts awaiting decision on their appeals? The High Court’s order abounds in contradictions. Having granted them The High Court thus noted that one of the accused and the survivor exchanged their respective nude pic- tures, but ignored her testimony that she did so because she was coaxed by him. Again, her acceptance of a sex toy, as suggested by one of the accused, is cited as a factor suggesting that she too suffered from misadventure, stemming from a promiscuous attitude and a voyeuristic mind. However, her expres- sion of unwillingness to buy the sex toy was ignored by the High Court. The Court then concluded: “It would be a travesty if these young minds are confined to jail for an inordinate long period which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings. Long incarceration at this stage when the appeal is not likely to mature for some time is likely to result in an irreparable damage.” Even as one wonders whether similar reasoning could be applied to other con- bail, it directed the All India Institute of Medical Sciences, Delhi, to depute a trained psychiatrist to counsel the accused, (whom it now called as victims), and report to the Court on whether they are free of their voyeuristic tendencies. The High Court asked the three convicts to share the amount of compensation of `10 lakh to be offered to the survivor, equally, as if it could be a condition for grant of bail. That the Court did not hear the survivor or her family on the grant of bail to the accused is another anomaly which needs to be addressed if the bail is challenged. The fact that the Court was ready to consider the plea of the accused to travel abroad for education makes one wonder if their class influenced the verdict. FAROOQUI CASE In the second instance, the Delhi High Court acquitted Mahmood Farooqui , the well-known writer and co-director of the film, Peepli Live, for the rape of Courts/ Rape Verdicts “Thetestimonyofthevictimdoes offeranalternatestoryofcasual relationshipwithherfriends, acquaintances,adventurismand experimentationinsexual encounters...” –PunjabandHaryanaHC

35. at all that the prosecutrix was unwilling,” the High Court explained. It added that when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Consent has to be an affirmative one in clear terms, the Court agreed subsequently. If this was so, why did it interpret a feeble hesitation as consent is not clear. COURT’S INTERPRETATION The High Court suggested that if the parties are known to each other, are persons of letters and intellectually/acade- mically proficient, and if, in the past, there have been physical contact, it would be really difficult to decipher whether little or no resistance was actually a denial of consent. In an act of passion, actuated by libido, there could be myriad circumstances which can surround consent and it may not necessarily always mean yes in case of yes or no in case of no, the Court explained. The Court’s interpretation of her post- incident conduct is riddled with contradictions, as it later agreed it could be explained by her trauma. Meanwhile, on a positive note, the Bombay High Court, while refusing bail to an accused, convicted and sentenced to 10 years’ rigorous imprisonment under the Protection of Children from Sexual Offences Act, has held that women of easy virtue have the right to refuse consent. The Court refused to consider the fact that the accused was the sole earning member of his family, for suspending his sentence. The first two verdicts have naturally come in for a lot of criticism as not only were they seen as “sexist” and setting back women’s rights, but they seemed to show how easily the judiciary was influenced by the class of the accused in granting relief to them. | INDIA LEGAL | October 9, 2017 35 Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com to be so even when she knew about his drinking habits and also when he was heavily drunk and befuddled on that day. The prosecutrix had exchanged kisses and hugs with the appellant in the past. The prosecutrix had accepted a kiss from the appellant even while the appellant was in the company of his wife and the wife had, for a brief period, gone out of the room, on an earlier occasion. (b) The prosecutrix had been cracking jokes and indulged in playful banter immediately prior to the occurrence. (c) During the act, the prosecutrix feigned orgasm. (d) Prior to the act, the appellant had asked her for sexual favours to which she did not stoutly resent or deny. (e) The prosecutrix continued to remain in the company of the appellant. (f) That the prosecutrix was under fear was absolutely unknown to the appellant. (g) The conduct of the prosecutrix, post occurrence, namely her remaining in the house. (h) The prosecutrix did not communi- cate about this occurrence to other acquaintances, even when there was an opportunity to do so. The High Court further reasoned that her unwillingness was only in her own mind and heart, but she communi- cated something different to him. “If that were not so, the prosecutrix would not have told the appellant that he had gone too far on that night. At what point of time, during the act, did she not give the consent for the same, thus, remains unknown, and it can safe- ly be said that the appellant had no idea an American research scholar who had interacted with him during her stay in India. The Special Fast Track Court, Saket, had found Farooqui guilty of rape in a detailed judgment last year and had sentenced him to rigorous imprisonment of seven years and a fine of `50,000. While acquitting Farooqui, the Court gave a bizarre interpretation of consent, and refusal. Consent, as defined under Section 375 of the Indian Penal Code, the High Court said, includes non-verbal and verbal communication. It inter- preted the circumstances of the incident as indicating consent of the complainant for a sexual encounter with Farooqui. Although the past sexual history of the prosecutrix with the accused cannot be a ground for denying the absence of consent during the incident in question, the High Court concluded as follows: (a) The prosecutrix had been in the company of the appellant and continued “Atwhatpointoftime,during theact,didshenotgive the consentforthesame,thus, remainsunknownanditcan safelybesaidthattheappellant hadnoidea...” —DelhiHighCourt “NO” MAY NOT MEAN “NO” Mahmood Farooqui (above), writer and co-director of Peepli Live (facing page), was acquitted by the Delhi High Court for the alleged rape of an American scholar

36. Focus/ Justice Jayant M Patel’s Resignation 36 October 9, 2017 HE Supreme Court’s collegium is facing a crisis of credibility with Justice Jayant M Patel of the Karnataka High Court ten- dering his resignation on September 25. Justice Patel resigned following the collegium’s order of his transfer to Allahabad High Court, where he would have been the third senior-most judge, as compared to his current No 2 position in the Karnataka High Court. When the current chief justice, Subhro Kamal Mukherjee retires on October 9, he would ordinarily have become the acting chief justice of the Court. Prior to that, Justice Patel had been on the bench of the Gujarat High Court for 15 years, and during that tenure, had ordered a CBI investigation into the alleged fake encounter of Ishrat Jahan, a case where fingers were pointed at the BJP’s top state leadership. This unprecedented transfer, with only 10 months to go before his retirement, has sent shockwaves among bar associations, and drawn condemnation. The focal point has been the opacity in the collegium’s decision-making process and there are demands that it disclose the reasons for his transfer. Speaking to India Legal, Justice Patel emphasized that he had always taken decisions without fear or favour and was an upright judge. “Now that I have sent in my resignation, the onus is on the collegium to follow the due process of law and come clean on the entire affair,” he said. (Sources said the resignation would be officially accepted by the President) The judge declined to specu- late on why he was transferred and whether it was because he had not toed the line of the powers-that-be. He stated that he would “strictly abide by the process mandated by judicial discipline”. On September 26, the Gujarat High Court Advocates’ Association (GHCAA) passed a resolution approved by 99 percent of the members condemning Jus- tice Patel’s abrupt transfer. Expressing its “strongest possible objection and dis- approval against the decision of the collegium of the Supreme Court of India”, it stated that the decision had shaken the belief of the Bar in the independence of the judiciary and had the poten- tial of “adversely affecting the morale of the legal fraternity and the judiciary”. Resolving to challenge the transfer decision in the Supreme Court, the GHCAA has decided to raise larger issues, viz. seeking full disclosure of the reasons of the collegium and/or High Court with regard to the “recommendations of appointments, non-appointments, non-confirmations of HC Judge and/or elevations or non-elevation of a High Court Judge to Supreme Court or Collegium Faces Flak TheSupremeCourt’sdecisiontotransferthisjudgefromKarnatakatoAllahabadhasdrawn widespreadcriticism.Butwilltheprotestsyieldanyresult? By Saurav Datta T NEXT IN LINE: Justice Jayant M Patel (inset) would have become the acting chief justice of the Karnataka High Court come October NEXT IN LINE: Justice Jayant M Patel (inset) would have become the acting chief justice of the Karnataka High Court come October

37. | INDIA LEGAL | October 9, 2017 37 as Chief Justice of HC and for making full-fledged Judicial review available in such situations to the candidates concerned or the Bar Association in general”. The Karnataka State Bar Council too released a statement on September 27, saying that “the entire legal fraternity is anguished and is greatly disturbed by the shaking of faith/confidence in the collegium system; which has meted out such treatment to the Hon’ble Mr. Justice Jayant Patel, who apparently, has satisfactorily discharged his duties and functions as a Judge”. Members of the Bar feel that decision-makers in the judiciary and executive had apparently overlooked the spirit of the NJAC verdict in achieving transparency. It was also critical of the collegium for non-appointment of judges to the High Court. “Because of the injustice meted out to the upright judge, we have called upon all lawyers in the state to protest and abstain from work on October 4”, it stated. T he Campaign for Judicial Accountability and Reforms also slammed the treatment meted out to Justice Patel. It said that he was “being victimized for his courage and commitment to take on cases that went against the political establishment.” It made the following demands from the collegium: “eligibility criteria and process for selection/transfer of judges are made public; names of short listed candidates are disclosed, along with details of how they satisfy the eligibility criteria, why they were selected over those who were not, and their background details; putting in place an appropriate procedure to maintain minutes of all meetings of the collegium; that the minutes of the meetings of the collegium are made public.” Yatin N Oza, senior advocate in the Gujarat High Court and a former BJP MLA, alleged to India Legal that the collegium’s members were “determined to ensure a judiciary committed to the executive”. He alleged that it had delib- erately prevented the transfer of Chief Justice Mukherjee to another high court so as to block Justice Patel’s ascension. The Supreme Court’s 1993 judgment in Supreme Court Advocates on Record Association v Union of India referred to Article 222 which deals with its power to transfer judges. It said: “There is noth- ing in the language of Article 222(1) to rule out a second transfer of a once transferred judge without his consent but ordinarily the same must be avoided unless there exist pressing circumstances making it unavoidable. Ordinarily a transfer effected in public interest may not be punitive but all the same the Chief Justice of India must take great care to ensure that in the guise of public interest the judge is not being penalised.” This is the second time Justice Patel has been transferred; the first was in 2016 from Gujarat to the Karnataka High Court. Although the consent of the judge being transferred is not strictly necessary, the 1993 judgment makes it clear that it should be taken “unless there exist pressing circumstances making it unavoidable”. In addition, the circumstances must be in “public interest”. What the “pressing circumstances” in the present case are, no one will know unless the collegium discloses it. The problem is compounded by the fact that transfer decisions of the collegium cannot be challenged in court. It now remains to be seen whether the Supreme Court entertains and decides favourably on the GHCAA’s petition. If it does, it would set a precedent in transparency. Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com In the ongoing debate over Justice Jayant M Patel, the Bar Council of India said that it may not agree with the decision of the collegium to transfer him and may join hands with the Gujarat High Court Advocates’ Association in the legal proceedings. At the same time, the Council took serious notice of a statement by Dushyant Dave, former president, Supreme Court Bar Association, where he had made comments against Chief Justice of India Dipak Misra and the collegium. Calling Dave’s remarks “derogatory and reck- less,” the Council told him to file a reply within four weeks after which it would take further action. Dave had spoken out against the collegium after Justice Patel’s resignation and said this system does not work well for selecting judges. The Council said Dave’s comments on TV were “an attempt to malign the image of judiciary and the Institution. The personal attack smacks of some personal vendetta against the Chief Justice of India which amounts to gross misconduct”. BarCouncilHitsOutat DushyantDave HAUNTED BY THE PAST: Justice Patel had ordered a CBI investigation into the alleged fake encounter of Ishrat Jahan

38. 38 October 9, 2017 HE malaise of huge pendency of cases in our country is affecting the legal system, resulting in people feeling hopeless- ness about its efficacy. The problem of pendency also hit legal systems of Europe earlier. The famous quote of Voltaire aptly sums up the common man’s plight in our country: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” There are two types of litigants: one who misuses the system to protect him- self and who continues to take undue advantage of it, and the other who gen- uinely approaches for relief. It was perhaps the perception of Colonial lawmakers that Indian litigation is actually driven by those who misuse the system. Therefore, the Code of Civil Procedure and the Code of Criminal Procedure are heavily loaded in favour of the defendant or the accused. Chief Justice Dipak Misra too had bemoaned the adjournment of cases, which largely contributes to delay in their disposal. This pendency has assumed alarming proportions. The causes for pendency may be many, such as lack of clarity or loopholes in the law, inadequate number of judges, lack of learning and sincerity among advocates and non-cooperation with the courts for expeditious disposal of cases. When a litigant is enjoying an undue advantage and if delaying legal proceedings is the only relief, it is quite natural that he will resort to undesirable tactics to forestall the expeditious disposal of the case. HUGE BACKLOG It is, therefore, painful to note that one research institute unearthed the fact that a company petition in Karnataka High Court was awaiting admission since 1985. In Calcutta High Court, a civil suit was pending for 173 years; it was filed prior to the establishment of the court 144 years ago. There are nearly 2.96 crore cases pending in subordinate courts and 5,000 more judges are needed to tackle pendency. In high courts, 31,16,492 civil cases are pending, and out of them, 5,98,631 cases have been pending for over a decade. Also, 10,37,465 criminal cases are pending Let’s Speed It Up ConstantadjournmentshaveledtoahugependencyofcasesinIndiaanditisuptojudgesand lawyerstoamelioratethesituation Column Justice K Sreedhar Rao T UNI

39. | INDIA LEGAL | October 9, 2017 39 there and out of them, 1,87,999 were pending for over a decade at the end of December 2014. Order 17 Rule 1 of the Code of Civil Procedure governs the adjournment of a case by the court. While advocates blame the judge for adjourning complicated cases, judges blame advocates for seeking adjournments on frivo- lous grounds. There was an attempt in 2003 to amend Order 17 Rule 1 CPC to disable an advocate from seeking adjournment on the ground that he is engaged in another court. In fact, no research or audit has been done on how effective the amendment has proved for expedit- ing the early disposal of cases. The days of a devoted and disci- plined bar have become a thing of the past. Except for the Supreme Court, in all high and subordinate courts, strikes by lawyers are commonplace. The bar no longer fears the judge. It is the judge who fears the bar nowadays. REGULATE PROCEDURES Efforts have to be made on a war-foot- ing to overcome the reasons for pendency. The present system of listing and calling of cases envisaged under Order 17 Rule 1 requires to be replaced by explicit and detailed regulated procedures. The present practice of over-listing of cases keeps the judge, the lawyer and the litigant in suspense as to which case will be heard and decided. This perhaps gives wide scope for adjournments and wastes judicial time. Cases which are at the preparatory or preliminary stage and not ripe for effective hearing, evidence or arguments should not be listed for the judge to hear. The registry of the high court or the chief administrative officers of subordinate courts should attend to the preliminary and preparatory work of a case. Listing of cases should be limited and proportionate to the judicial time available for effective disposal for the day. Also, a case once listed, for hearing, evidence or arguments should never be adjourned at any cost. Seriously discipline should be instilled in effectively conducting the case listed for the day. Such a rigorous practice would help in ameliorating the situation and instill confidence in the public and would refurbish the sagging image of the system. The writer is former acting chief justice of the Karnataka and Gauhati High Court Twitter: @indialegalmedia Website: www.indialegallive.com Contact: editor@indialegallive.com Thepresentpractice ofover-listingof caseskeepsthe judge,thelawyerand thelitigantin suspenseastowhich casewillbeheard anddecided.This perhapsgiveswide scopefor adjournmentsand wastesjudicialtime. JUSTICE DELAYED As cases pile up in courts, litigants wait for years before their disputes get settled Imaging: Anthony Lawrence

India Legal 09 October 2017

India Legal 09 October 2017

India Legal 09 October 2017

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