Ample India: Cohen's Bright Perception of India's Resilience

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January15, 2018
Parliament: Politics
of triple talaq
Supreme Court: Year
of crucial judgments
Death By
AadhaarInJharkhandalone,fourpeoplehavediedfromstarvationbecausetheycouldnot
accessrationsorpensionunderAadhaarguidelines.This,despitethematterstill
pendingbeforetheSupremeCourt.Aninvestigation.
SPECIAL REPORT
Koyli Devi whose 11-year-old daughter Santoshi Kumari died of starvation in Jharkhand

HIS year seems not to have begun too
propitiously either for the government
or the nation. The leitmotif of the past
two years—increasing caste and reli-
gious polarisation, the blurring of dis-
tinctions between patriotism and militant
nationalism—seems to have etched itself even
more deeply into the national psyche with ruling
party members and legislators mounting new
assaults on the validity of the secular Constitu-
tion. The New Year dawned with the explosion
of new caste conflicts in Maharashtra with the
Dalits pitted against upper caste militancy in
street fights and demonstrations in Mumbai—
the country’s financial capital.
The BJP’s elder statesman, Yashwant Sinha,
proclaimed that the mandate given to the Modi
government has been “wasted”. The economy, he
feels, cannot now recover from experimental
adventurism which sent the backbone of Indian
entrepreneurship—small and medium enterpris-
es—into a tailspin; a view, incidentally, shared by
maverick Subramanian Swamy. One prominent
website predicted that this pre-national election
year would see “peak Hindutva” with growing
intolerance towards minorities and bigotry and
hatred paying political dividends as what were
once considered “fringe views and groups” are
gaining mainline acceptance.
Surely, India’s venerable Supreme Court
which has so far mostly risen above politics as it
has, over time, tried to grapple with executive
excesses such as the misuse of Article 356 and
possible misuse of the Aadhaar card to destroy
the right to privacy, must be worried and anx-
ious. In this surcharged atmosphere of politicisa-
tion of the steel frame of Indian governance, of
blatant sloganeering of falsehoods to win elec-
tions, the Court is also straddled with critical
decisions on the Babri Masjid tangle and other
matters which impact religion and privacy. Will
the Court restore a semblance of sanity in what
is rapidly becoming a one-sided narrative aimed
at capturing power, or will India as a nation rise
above its baser instincts on the strength of the
common sense and goodwill of its people?
Well before the last year came to a close, New
York Times veteran columnist Richard Cohen,
looking at India from afar, concluded that the
success of nations, particularly India, “involves a
mysterious alchemy” that leaves space for civi-
lised discourse. Citing examples, Cohen noted
that Brazil and South Africa have immense
problems, “but you may count on them to suc-
ceed because the fabric of their nationhood is
resilient. In a similar way, anyone betting against
India over the long term would be foolish.
Openness and capaciousness tend to win.”
In his article, titled, “The Inspiration of
Ample India”, he elaborates that India, in its
immensity, makes you believe that. It is a place
of awe. “I spend too much time in parts of the
world trapped by smallness. History illuminates;
it also imprisons.”
India is “ample”, he reiterates. Soon to be the
most populous country on Earth, it is home to
close to a billion Hindus, some 172 million
Muslims and tens of millions of Christians. He
notes: “Cochin is dotted with churches and
mosques. Nobody cares too much. There’s room
for multiple truths. It is this that makes the
country such a source of hope. Whatever the
errors of policy, and whatever the occasional
flaring of terrible religious violence as in Gujarat
in 2002, the nation’s basic alchemy is good—
with or without large-denomination bank notes.
“In the end, intangible qualities—the
empowerment of women (India has a long way
to go), the capacity to place the future over the
past, and the space afforded for civilized dis-
agreement—are better indicators of the health of
a society than economic statistics.”
I love India, too. While I commend patriot-
ism, I do not subscribe to blind nationalism. I
also love Cohen’s bright perception, but I believe
it borders on Indomania. Cohen is also a bit of
an Indophile and therefore, given to bouts of
romanticism and hyperbole.
AMPLE INDIA Inderjit Badhwar
Letter from the Editor
T
4 January 15, 2018

There are, of course, many elements of many
truths in what he observes. Yes, India does have
a peculiar DNA composed of genes which tend
to leapfrog over historical grievances and the
politics of hate and vengeance. His reflection on
the innate capability of the poorest to live a life
of wholeness alongside the richest—and without
revolutionary venom or vindictiveness—also
reveals a peculiarly Indian trait in which the
Indian, as Lin Yutang said about the Chinese,
sees the world go by with one bemused eye,
while the other looks inward.
M
ost Indians believe in reincarnation
and rebirth as they have, unbrokenly,
for 5000-6000 years. If you ask them
why, they’ll think the question to be as stupid as
questioning whether we breathe in oxygen. They
have a this-too-shall-pass attitude towards life
and death.
That is perhaps what answers Cohen’s riddle
of how a billion-plus people with a divergence of
faith, language, ethnicity, colour, food habits,
monstrous economic disparities and tribal habits
have managed to converge into a relatively cohe-
sive and mostly tolerant social conglomerate.
The real wonder is that the Partition of India
in 1947 (when Muslim Pakistan was carved out
of India)—a virtual civil war created by the Bri-
tish as a condition of their giving up the Raj—in
which the most savage butchery involving mil-
lions occurred during possibly the largest cross
migration in modern times, did not leave behind
a wrecked and blistered region like the Middle
East after the break-up of the Ottoman Empire,
or even a fractured and seething Europe after
the fall of the Austro-Hungarian Empire or the
crises in the Balkan states.
What emerged was a stronger India aflame
with poverty and exploitation, yet led by wise
men and women who kept anarchy and class
warfare at bay with minimal repression. There
were famines in the early years, caste discrimi-
nation, misogyny, patriarchal hegemony, mis-
treatment of widows, outbursts of religious sav-
agery...but the idea of a constitutional India
guided by principles of liberty and the rule of
law held.
Literacy grew, feminist movements took root,
lower castes found in politics ladders for upward
mobility, a middle class emerged, labour unions
surfaced, independent newspapers, then elec-
tronic and digital media flourished, Indian cine-
ma captured the world...radical civil rights
lawyers formed collectives, modern medicine
and surgery flourished ... the hierarchy of
needs changed.
And yet the Ancient, along with superstition,
remained untouched, witch doctors, voodoo, a
tenacious belief that mythology was real, and
without the saints and gods who populated that
world, today’s India would not make much sense
or even be worth living for most Indians. To
understand India, you must first realise that
Nothing is incongruous here.
Cohen, however, misses the point that there is
now, in the name of “cleaning up India” a politi-
cal movement (another viral strain) that seems
to have emerged, which seems resistant to the
antibiotics of Indianness, some of which I have
described above. It abhors individual freedom,
and the idea of equal status for all religions. It
has adopted a narrow concept of pan-Hinduism
as its battle cry. It is spreading across India. It is
in power in Delhi. It is spawning intolerance,
censorship, suppression of student debates on
campuses, media oligopolies, crony capitalism,
militant vegetarianism, lynch mobs, leaders with
private religious armies. Minorities are running
scared. So are intellectuals, editors and “Muslim
appeasers”.
But I guess a lot of Indians are also looking at
this with one eye shut. This, perhaps, will pass,
too. And maybe Cohen is right, India will contin-
ue To Overcome.
| INDIA LEGAL | January 15, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
THE ESSENCE OF
INDIANNESS
Muslims and Hindus
offering prayers to Lord
Ganesha in Ahmedabad

ContentsVOLUME XI ISSUE 9
JANUARY15,2018
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6 January 15, 2018
Death by Aadhaar
Jharkhand, one of the poorest states, has seen four deaths in recent months due to the
centre’s insistence on linking UID numbers with PDS rations and social security pensions.
This is despite the fact that the Supreme Court is still to decide on the linkage issue
LEAD
LEGALEYE
12
Politics above
All Else
That the rule of law is not supreme is clear
from the dropping of charges against Yogi
Adityanath and the diluting of those against
Sadhvi Pragya Singh Thakur
16

Does Tamil Nadu
Need a Hero?
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Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs................22
Media Watch ..................43
International Briefs..........48
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
Realpolitik vs Religion
The winter session’s end saw the Muslim Women Bill, 2017, being
put in cold storage but the battle lines are now drawn over its fate
24
ACTS&BILLS
The US president’s condemnation of
Pakistan and his decision to cut aid is
unlikely to have much impact since
China, with its One Belt One Road
initiative, will back Islamabad to the hilt
44A Tweet Is
Not Enough
Will Rajinikanth’s foray into politics make
a dent in established parties such as the
AIADMK and DMK? Will his huge fan
base be able to take on the organised
cadres of these parties?
36
It Takes Two to Tango
The government needs to revisit the obsolete Section 497 in the light
of evolving social mores as well as in the interest of natural justice
OPINION
32
Triple Whammy
The triple talaq bill is
meant to provide secu-
rity to Muslim women
within marriage, but
ironically, hastens its
dissolution by sending
the husband to prison
28
MYSPACE
Click to Get Quick Help
With the centre issuing guidelines for a portal to report rape and
revenge porn videos, relief may be at hand for these victims
30
CYBERCRIME
Fighter Ahead
of the Game
India would do well to lobby for
the highly advanced F-35 if it
wants to maintain a security edge
over its rivals in an increasingly
belligerent neighbourhood
DEFENCE
39
What’s on the Cause List
2018 will see some important cases coming up in the courts, the
outcomes of which will have a far-reaching impact. A calendar
20
SUPREMECOURT
The Doctor Is Away
An NHRC report has found Madhya Pradesh’s jails woefully short
of medical personnel, with no funds to appoint them even part-time
STATES
34
The US Sentencing Commission
helped send more people to
prison for longer terms, but was
created to address a non-existent
crisis—bias of individual judges
40Punishment
Formula
GLOBALTRENDS

8 January 15, 2018
“
RINGSIDE
“People have gone there (Assam) to work. In the
name of National Register of Citizens, they are
planning to drive them out. I warn the BJP gov-
ernment at the centre not to play with fire. They
shouldn’t follow the divide and rule policy.”
—West Bengal CM Mamata Banerjee alleging that
Bengalis staying in Assam have been
intentionally excluded in the first draft of NRC
released by the state government
“The idea is to move away from
the cash system. Electoral
bonds will ensure clean money
and significant transparency
against the current system of
unclean money.”
—Finance Minister Arun
Jaitley while announcing the
details of the electoral bond in
the Lok Sabha
“In the the past one-and-a-half
years, I have been speaking the
truth about Arvind Kejriwal’s
decisions on issues like surgical
strike, internal corruption, soft
stance towards extremists in
Punjab, JNU row and ticket
distribution (in Punjab). It is
difficult to survive in Aam
Aadmi Party if somebody
disagrees with Kejriwal. For
doing so, I have been rewarded
with punishment.”
—AAP leader Kumar Vishwas,
after he was not selected for a
Rajya Sabha berth
“Hindustan is for the Hindus
but some foolish leaders
allowed bearded men to stay
back in India (during Partition
in 1947). Now we are in a fix
because of them.... For Hin-
dus, the New Year will fall on
March 18 and not on January
1. The latter belongs to
Christians. These Christians
have grabbed so many areas....”
—Vikram Saini, BJP MLA from
Khatauli in Muzaffarnagar
district of UP
“North Korean Leader Kim Jong Un just stated
that the ‘Nuclear Button is on his desk at all
times.’ Will someone from his depleted and food
starved regime please inform him that I too have
a Nuclear Button, but it is a much bigger & more
powerful one than his, and my Button works!”
—US president Donald Trump, responding
to the North Korean leader’s warning in
his New Year address
“We’re not against movies
based on history, but they need
to be historically correct. There
is an urgent need for a law that
clearly demarcates the limits in
the portrayal of historical char-
acters.... What they want to
show by making such a film is
beyond my understanding.”
—Arvind Singh Mewar, the
erstwhile royal of Mewar and
part of the CBFC panel that
cleared Padmavati after
suggesting a few modifications
“The Indian person or diplomat accom-
panying my mother and wife started
yelling at them as soon as they stepped
out of the meeting…. I am a commis-
sioned officer of the Indian Navy and
my commission is not over….”
—Kulbhushan Jadhav in a video put out by
Pakistan

An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
PEHLE AAP
Much hype is being created around the fact
that Narendra Modi will be the first Indian PM
to attend the annual World Economic Forum
(WEF) jamboree held in Davos since 1997.
The fact is that he will be there for less than
24 hours. He reaches on the night of January
22, delivers the inaugural speech at 11 am
the next day and flies back to India that
evening to be able to welcome the ASEAN
leaders he has invited for the Republic Day
celebrations. This means he will have no time
for discussions or one-on-one meetings with
other leaders at Davos. The background to
his visit is interesting. Last June, he met with
Klaus Schwab (in photo), founder and execu-
tive chairman of WEF, in Delhi, who is an
unabashed Modi fan—he wrote a flattering
introduction to an equally flattering book on
Modi by an India Today journalist. Schwab
invited the PM to Davos to address the ple-
nary session on the 2018 theme—“Creating a
Shared Future in a Fractured World”. Modi
remained non-committal but then the
Confederation of Indian Industry (CII), which
is the force behind India’s representation at
Davos, started to work on one of the bureau-
crats who has Modi’s ear—Bharat Lal. Lal
was Gujarat’s Resident Commissioner in
Delhi from 2010 to 2014, in effect, Modi’s
pointsman in the capital when he was chief
minister and also his conduit to corporate
India through the CII for Vibrant Gujarat sum-
mits. Lal has accompanied Modi on visits to
China and Japan and is now joint secretary
to the President. CII office-bearers convinced
Lal of the importance of Modi’s presence at
Davos, no matter how short, and the strategy
seems to have worked. Over 100 Indian
CEOs will be there, including Mukesh Ambani
and regulars like Uday Kotak, Adi Godrej,
Rahul Bajaj and Anand Mahindra, along with
Bollywood celebs Shah Rukh Khan and
Karan Johar. Cabinet ministers
accompanying Modi will have a longer
stay, and include Piyush Goyal, Suresh
Prabhu, Nitin Gadkari, Dharmendra Pradhan
and, curiously, Jitendra Singh. Officialdom
will be represented by another Davos
regular, Amitabh Kant, and Department of
Industrial Policy and Promotion Secretary,
Ramesh Abhishek.
Motorists trying to get to central Delhi areas
like Connaught Place via Ashoka Road face
a big problem thanks to the huge crowds
seen almost daily at the BJP headquarters at
number 11. Ever since the party came to
power at the centre, it has been expanding
the number of rooms and reception areas
but the crowd of supporters and political
aspirants keeps growing along with vehicles
and rent-a-crowds singing hosannas to party
leaders from across the country. To circum-
vent the problem, the party is advancing the
date it will shift to its swanky new headquar-
ters on, appropriately enough, Deen Dayal
Upadhyaya Road, near ITO. Situated on a
two-acre plot, the new building is a huge
improvement on the Ashoka Road one, now
rundown and shabby. It boasts 70 rooms,
underground parking, a large auditorium,
studios for live TV feeds, a media centre,
library, restaurant and adequate tea/coffee
outlets. Parking and crowd control should no
longer be a problem—Delhi police headquar-
ters is nearby.
MOVING HOUSE
It’s become a case of Pehle
Aap .The Aam Aadmi Party was
entitled to nominate three mem-
bers to the Upper House after
the retirement of the Congr-
ess’s Janardan Dwivedi, Parvez
Hashmi and Karan Singh. With
a brute majority of 66 in the 70-
member Delhi Assembly, AAP
was assured of nominations for
all three seats. After Chief
Minister Arvind Kejriwal and his
Deputy Manish Sisodia returned
from their New Year break in the
Andamans, they decided on
Sanjay Singh, a member of its
Political Affairs Committee
(PAC), Sushil Gupta, a busi-
nessman, and ND Gupta, a
chartered accountant, but only
after some prominent
citizens turned down offers.
Former Chief Justice of India,
TS Thakur, and BJP rebels,
Arun Shourie and Yashwant
Sinha, were among those who
rejected the offers. The chosen
ones, the Guptas, have created
unhappiness in AAP ranks—
bad news for Kejriwal.
MODI’S DAVOS DATE
TAILPIECE
Two issues ago, Durbar had
published an item on the
appointment of a new foreign
secretary to replace S
Jaishankar. The item concluded
with these words: “The smart
money is on Vijay Gokhale,
India’s envoy to Beijing who
was brought back to South
Block as Secretary (Economic
Relations). His experience will
be invaluable with relations with
China being vital to India’s
strategic interests.” Gokhale
was appointed on January 2.

Former Finance Minister P Chidambaram
and his family members were granted
relief by the Madras High Court, which nulli-
fied demand notices issued by the Income
Tax (IT) department to them for the financial
year 2010-2011. The department wants
them to pay tax for the said year on
earnings from their Kodagu coffee
estate, saying it was not assessed.
This is the second time that the
Court granted them relief in a tax
notice matter. Earlier in November,
the IT department’s notice for
2009-2010 on the same issue was
also quashed by the Court.
Chidambaram and his family
had objected to the notices through
writ petitions. They had pleaded that
the proceeds of the sale of raw cof-
fee fall in the category of agricultural income
which is exempt from income tax. They had
also argued that the IT department had
already assessed them for many years in the
matter without any problem and stated that
they had been singled out now.
T
he CBI trial court’s order sentencing
former Jharkhand Chief Minister Madhu
Koda (right) to a three-year jail term in a
coal scam case has been stayed by the Delhi
High Court. The fine of `25 lakh slapped on
Koda was also stayed by the Court, which
asked him not to leave the country till the
next hearing on January 22 when all petitions
related to the matter will be taken up.
Koda had pleaded that his jail term be
suspended and regular bail be granted to him
till his appeal against the conviction and sen-
tence was heard by the High Court.
The CBI court had ruled that Koda was
guilty of illegally allotting a coal block in
Jharkhand to a Kolkata-based company.
Besides Koda, former Coal Secretary HC
Gupta, former Jharkhand Chief Secretary
Ashok Kumar Basu and Koda’s aide, Vijay
Joshi, were also given three-year jail terms,
each. However, the CBI court allowed them
to approach the High Court against the order.
Courts
10January 15, 2018
Delhi High Court stays
Madhu Koda’s jail term
The ministries of minority
affairs, social justice and
empowerment and the Haj
Committee were asked by
the Delhi High Court to
respond to a petition on the
new Haj policy for the pil-
grims. The petition objected
to the eligibility rule that did
not allow differently-abled
people to go on the annual
Haj pilgrimage to Mecca
and pleaded that it be done
away with.
According to the new eli-
gibility rule, Muslims who
have amputated legs, are
crippled, handicapped, lu-
natic or mentally and physi-
cally “incapacitated” can’t
apply to go on the pilgrim-
age. The petition, filed by
Gaurav Bansal, an advocate,
said that the rule was dis-
criminatory as it violated
Articles 14, 21 and 25 of the
Constitution and the Disabi-
lities Act, 2016.
The Court sought the
response by April 11.
Delhi HC seeks response on new Haj eligibility
—Compiled by Prabir Biswas
Madras HC bats for
breastfeeding and
maternity leave
Relief for Chidambaram and family
The Madras High Court recently
took up the issues of breast-
feeding newborns and their proper
care, and maternity leave for
women. It posed a set of questions
to the centre while hearing a peti-
tion from a government doctor
who was denied admission to a
post-graduate course on the
ground that she did not fulfil the
criterion of completing two years
of service as she had availed of six
months’ maternity leave during that
period. The Court asked the Tamil
Nadu government to admit her to
the course.
However, the Court kept the
petition pending as it wanted to
take up the issues mentioned
above. It even included suo motu
several central ministries, other
departments and the Tamil
Nadu government as parties in
the matter.
Why can’t parliament enact a
law making breastfeeding compul-
sory, the Court asked the centre
among other questions. It also
asked why the centre couldn’t
declare breastfeeding a fundamen-
tal right and increase maternity
leave from 180 days to 270 days
and ask states to do so too.

12 January 15, 2018
VER the last four months,
at least four persons died
of starvation in Jhar-
khand. Their families rou-
tinely faced shortages of
food and nutrition. The
state of semi-starvation worsened after
disruptions in the delivery of the Public
Distribution System (PDS) rations and
social security pensions, leading to the
violation of the constitutionally
enshrined Right to Life. In each of these
four cases, the denial of welfare services
was the direct result of their linkage
with Aadhaar.
Jharkhand is a state still known for
its backwardness and poverty, where
43.5 percent of children in the 0 to 5 age
group are underweight (National Health
Family Survey 2015-16) and where
undernourishment is rampant even in
the adult population. In such a scenario,
the rations made available under the
PDS and through entitlements under
the National Food Security Act (NFSA)
are often the only reason why a majority
of the state’s population is not forced to
sleep on an empty stomach.
Yet, the insistence of the BJP-ruled
Thestatehasseenfourdeathsinrecentmonthsduetothecentre’s
insistenceonlinkingAadhaartoPDSrationsandsocialsecuritypensions
despitethematterpendingintheSupremeCourt
By Siraj Dutta
Deaths by
Aadhaar
Lead/ Jharkhand/ Starvation
CRUEL FATE
Koyli Devi, mother of Santoshi Kumari, who
died of starvation in Simdega district
O

the Aadhaar-based transaction to match
the online record and the allotted stock
over a period of time. Premani seems to
have become a victim of this fudging.
The practice of transacting on ration
cards but not providing the grain to the
intended beneficiary is only one exam-
ple of the numerous ways in which the
integration of welfare services with
Aadhaar is affecting the marginalised.
GOVERNMENT NOTIFICATION
In February 2017, the central govern-
ment notified the mandatory linkage of
PDS with Aadhaar. All ration cards are
to be linked with Unique Identification
(UID) numbers of respective family
members—any one person on the
ration card whose Aadhaar is linked
with the PDS database has to authenti-
cate his fingerprint on the PoS machine
at the local ration shop to access the
family’s rations.
Following the central government’s
notification on Aadhaar linking,
Jharkhand’s chief secretary, Rajbala
Verma, instructed the cancellation of all
ration cards not linked with Aadhaar. In
September 2017, the state government
centre, aided enthusiastically by the
party’s government in the state, on
mandatorily linking Aadhaar to all
social welfare schemes has led to vast
sections of Jharkhand’s impoverished
population being deprived of their legal-
ly guaranteed entitlement to food or the
means to buy rations.
The Supreme Court has issued multi-
ple orders since 2013 that prohibit mak-
ing Aadhaar mandatory for accessing
welfare services. But Prime Minister
Narendra Modi’s government and many
of the state governments—a majority of
them BJP-ruled—continue to link wel-
fare services with Aadhaar, either
through notifications or on the sly.
With the Supreme Court yet to take a
final call on the validity of such orders,
the Modi government recently extended
the earlier deadline for linkage of vari-
ous services to Aadhaar from December
31, 2017, to March 31, 2018. However,
there is growing evidence of widespread
hardship and exclusion from welfare
programmes due to this integration with
Aadhaar, irrespective of the missive
issued by the apex court or the centre’s
submissions before it.
STARVATION DEATH
Premani Kunwar, a 64-year-old desti-
tute, died after prolonged starvation on
December 1 in Garhwa district of
Jharkhand. For eight days preceding her
death, Premani could not cook any food
as there was no food grain in her dilapi-
dated mud house. She was wholly
dependent on her family’s monthly grain
entitlement of 35 kg under the NFSA
and a monthly pension of `600 under
the Indira Gandhi National Old Age
Pension Scheme. Premani, her kin
suggest, had not received her pension
for the last two months. The money was
credited to another account that was
linked to her Aadhaar but without
her knowledge.
Premani’s only means of getting food
for herself and her 13-year-old son,
Uttam, was the ration she would get
through the NFSA entitlement—grain
which she was reportedly deprived of in
August and then again in November
2017. Her four stepsons—three of them
married—would sometimes offer
Premani and Uttam some cooked rice.
However, Premani’s step family, which
stayed with her in the mud house, had
few resources to ensure a steady supply
of food for itself. So Premani and Uttam
would only get what was left after the
others had eaten—and it was not much.
According to the local ration dealer, he
could not distribute grain to ration-card
holders in August as he was not allotted
any stock for that month. In November,
the dealer reportedly transacted on
Premani’s ration card through the
Aadhaar-based biometric Point of Sale
(PoS) machine, but did not actually give
her the grain.
To hide the leakage of grain and
stock accumulated over months, reports
of ration dealers tampering with digital
records are rampant in Jharkhand. The
dealers do not distribute rations as per
CRIMINAL APATHY
Santoshi Kumari,11, died after her family’s
ration card was cancelled for not being
linked to Aadhaar
InSeptember2017,Jharkhandclaimedto
havesaved`225croreaftercancelling
11.64lakh“bogus”rationcards.Reports
suggestthatrationcardsofmanyhouse-
holdseligibleforPDSgrainwere
alsocancelled.
December 25, 2017: Etwariya Devi
of Majhiaon block in Garhwa died
of starvation after being denied
rations for three months and
pension for two months.
December 1, 2017: Premani
Kunwar, a 64-year-old destitute,
died of starvation in Garhwa district.
She had not received her pension
for the past two months.
October 23, 2017: Ruplal Marandi,
62, of Deoghar district, succumbed
to hunger after being denied grain
for two months as he couldn’t
authenticate his fingerprint on the
PoS machine.
September 28, 2017: Santoshi
Kumari, 11, of Simdega district,
died of starvation after her family
was denied rations for five months.
Jharkhand’sshame

14 January 15, 2018
claimed to have saved `225 crore after
cancelling 11.64 lakh “bogus” ration
cards. Reports from across the state sug-
gest that ration cards of many house-
holds eligible for PDS grain under the
NFSA were also cancelled in this exer-
cise. In a recent survey of 133 cancelled
ration cards of Manika block in Latehar
district, only five cards were found to be
fake or duplicate.
One household for whom the cancel-
lation led to starvation was that of 11-
year-old Santoshi Kumari of Simdega.
She died of starvation on September 28,
2017, after her family was denied ration
for five months.
In Deoghar district, 62-year-old
Ruplal Marandi and his daughter
stopped getting grain as neither of them
could authenticate their fingerprints in
the PoS machine. Ruplal succumbed to
starvation on October 23, 2017.
The central government has main-
tained a stoic silence on these deaths,
barring the exception of Santoshi
Kumari’s case which was widely report-
ed by the national media. It sent an
inquiry team to investigate her death.
However, the team prepared its report
based only on discussion with the state
department and did not bother to meet
Santoshi’s family. The report has not yet
been made public.
The centre issued a clarification on
October 24, 2017, allowing distribution
of grain to those whose Aadhaar was not
linked with their ration card and also to
those who failed to authenticate them-
selves through the Aadhaar-based bio-
metric authentication. Ration dealers
are to maintain a record of such cases in
an “exception” register.
STATE GOVERNMENT APATHY
While the Raghubar Das-led Jharkhand
government has not acknowledged the
role of starvation in any of these deaths,
it has grudgingly accepted that the chief
secretary’s order may have denied peo-
ple their PDS entitlements.
Jharkhand Minister for Food and
Consumer Affairs Saryu Rai claims that
the chief secretary had instructed the
mass cancellation of ration cards
without his consent and revoked the
order after Santoshi’s death. Rai stopped
short of acknowledging Santoshi’s case
as a starvation death but conceded that
“it’s a fact that the names (of Santoshi’s
family) got struck off the ration list due
to Aadhaar issues, which means they
stopped getting ration”. The food minis-
ter added: “The chief minister too didn’t
focus on this. The cancellation of the
family’s ration card was our mistake.
The chief secretary should have apolo-
gised for the unwanted order. Ignoring
ground realities, they boasted how fake
ration cards were deleted.”
But the starvation deaths of Premani
and Etwariya Devi in Garhwa two
months after the death of Santoshi indi-
cate that the government is yet to get its
act together. Usha, daughter-in-law of
Etwariya Devi of Majhiaon block, who
died of starvation on December 25 after
being denied rations for three months
and pension for two months, said:
“When I went to collect ration in
October, the dealer did not give me
ration as my thumbprint did not work
in the PoS machine. He told me
“angutha load nahi ho raha hai (thumb
impression is not being corroborated)’.”
In fact, the administration of Khunti
district recently ordered the deletion of
those names whose UID numbers were
not linked with their ration cards.
MANDATORY LINKING
Dheeraj, a member of the Right to Food
Campaign in Jharkhand who has been
part of fact-finding teams that investi-
gated these starvation deaths, said: “The
starvation deaths being witnessed in
Jharkhand are not unexpected. They are
the outcome of state-imposed starva-
tion, i.e. people are dying not because of
scarcity of food grain but because they
are not able to access their own legal
grain entitlement due to Aadhaar-based
biometric authentication system in
PDS and cancellation of ration cards
just because they are not linked
with Aadhaar.”
In March 2016, the central govern-
ment bulldozed the Aadhaar (Targeted
Lead/ Jharkhand/ Starvation
A TRAIL OF DISASTER
(Clockwise from above left) Uttam Kumar of
Garhwa district denied rations; his mother,
Premani Kunwar, died due to lack of food;
Etwariya Devi also died due to starvation
Siraj Dutta

case) that was triggered after a spate of
starvation deaths in Rajasthan. In its
numerous orders in the case, the apex
court clearly established the legality of
these entitlements within the ambit of
the Right to Life as enshrined under
Article 21 of the Constitution. It also
made the central and state governments
solely accountable for starvation deaths.
DEATHS IN OTHER STATES
Denial of entitlements due to Aadhaar-
related issues, leading to death, is not
limited to Jharkhand. In July 2017,
three brothers died of starvation in
Karnataka after they were denied
rations for six months for not possessing
UID numbers.
A 50-year-old paralysed woman
starved to death in Uttar Pradesh in
November 2017. She was denied her
grain entitlement for a month as she
could not go to the fair price shop for
authenticating her identity in the
PoS machine.
These deaths are just the tip of
the iceberg of the number of people
for whom hunger actually worsened
because of the disruptions in the
welfare programmes.
A five-judge constitution bench is set
to hear all Aadhaar-related cases from
January 18, 2018.
The question is whether the Supreme
Court should adjudicate on the matter
purely through the prism of the legal
arguments put forth by lawyers of the
rival parties or take into account how
governments, in their rush to link public
services with Aadhaar, failed to honour
their constitutional obligation to ensure
the right to life of citizens.
Will the Aadhaar-abetted starvation
deaths of Premani, Ruplal, Santoshi,
and Etwariya mean anything to the
Supreme Court?
—The writer works on social policy
frameworks in Jharkhand
Delivery of Financial and Other
Subsidies, Benefits and Services) Act,
2016 through proclaiming it to be a
money bill. Although the legality of this
Act itself is under question in the
Supreme Court, it allows the govern-
ment to link subsidies with Aadhaar
and introduce Aadhaar-based biometric
authentication in the delivery of
these subsidies.
The interim orders of the Supreme
Court in the Justice KS Puttaswamy
(Retd) & ANR vs. Union of India & ORS
case allow the government to link
schemes such as PDS, National Rural
Employment Guarantee Act and
National Social Assistance Programme
with Aadhaar. However, the Court has
also reiterated that these services cannot
be denied for want of Aadhaar.
In its interim order of September 23,
2013, the Supreme Court clearly ordered
that “no person should suffer for not
getting the Aadhaar card inspite of the
fact that some authority had issued a
circular making it mandatory”. On
August 11, 2015, the Court again stated
that “production of an Aadhaar card will
not be condition for obtaining any
benefits otherwise due to a citizen” and
upheld this in its interim order of
September 15, 2015. As per this order:
“The Aadhaar card Scheme is purely
voluntary and it cannot be made
mandatory till the matter is finally
decided by this Court one way or
the other.”
It also must be borne in mind that
grains under the PDS and social security
pensions are legal entitlements as per
the Supreme Court orders in the
People’s Union for Civil Liberties vs.
Union of India & ORS case of 2001
(popularly known as the Right to Food
“It’safactthatthenames
(ofSantoshi’sfamily)got
struckofftherationlist
duetoAadhaarissues,
whichmeansthey
stoppedgettingration.
And,thechiefministertoo
didn’tfocusonthis.The
cancellationofthe
family’srationcardwas
ourmistake.”
—SaryuRai,ministerfor
foodandcivilsupplies,
Jharkhand
“Thestarvationdeathsin
Jharkhandaretheout-
comeofstate-imposed
starvation,i.e.,peopleare
dyingnotbecauseof
scarcityoffoodgrainbut
becausetheyarenotable
toaccesstheirownlegal
grainentitlementdueto
Aadhaar-basedbiometric
authenticationsystem
inPDS.”
—Dheeraj,member,Right
toFoodCampaign
“Canyouimagineifthe
governmentwastosay
thattheonlywayyoucan
withdrawmoneyfrom
yourbankaccountis
afterfingerprint
authentication?Theuse
ofAadhaar-basedbiomet-
ricauthenticationinthe
PDSandpensionsisthe
same–itdoesnothingto
reducefraud.”
—ReetikaKhera,associate
professor,IIT,Delhi

Legal Eye/ Saffron Impact
16 January 15, 2018
HANGING the course of
justice for political benefits
is shocking and unethical.
This was in ample evidence
in two recent cases, as
criminal charges were
either changed or dropped—in the latter
case, one of the accused happened to be
the chief minister. In effect, the govern-
ment of Uttar Pradesh was dropping a
case filed against its own chief minister.
The first case was a special National
Investigation Agency (NIA) court drop-
ping all charges against Sadhvi Pragya
Singh Thakur, Lt Col Prasad Purohit
and six others in the 2008 Malegaon
blast under the Maharashtra Control of
Organised Crime Act, 1999 (MCOCA)
and the Unlawful Activities (Prevention)
Act (UAPA). Instead, they were charged
only under Sections 120B, 302, 307,
304, 326, 427 and 153A of the IPC and
Section 18 of UAPA, which are far less
stringent than MCOCA which is punish-
able by up to life in prison.
In the incident, a bomb tied to a mo-
Protecting the Lawless
OrderingthedroppingofchargesagainstYogiAdityanathanddilutingthoseagainstSadhvi
PragyaSinghThakurshowsthatpoliticalconsiderationsoftenoverridetheruleoflaw
By Vinay Vats
CPOLITICAL FAVOUR
Pragya Singh Thakur will
now face less stringent
charges in the 2008
Malegaon blast case

torcycle exploded in Malegaon in Nash-
ik on September 29, 2008, killing seven
and injuring more than 100. The inves-
tigation found that Thakur’s motorcycle
was used by the accused, Ramji Kal-
sangra, to store RDX. According to the
Anti-Terrorist Squad (ATS) and other
investigating agencies, Purohit is alleged
to be the founder of a right-wing group,
Abhinav Bharat, which aggressively cru-
saded for a separate “Hindu Rashtra”.
It remains to be seen what is left of
the trial. Under MCOCA, statements
given to police officers are admissible in
court. But with MCOCA charges drop-
ped, these statements will need to be
recorded afresh in front of a magistrate.
Similarly, in UP, the government
recently ordered the withdrawal of a 22-
year-old case against the chief minister,
Yogi Adityanath, and 12 others, includ-
ing Union Minister of State for Finance
Shiv Pratap Shukla and BJP MLA
Sheetal Pandey, for holding a meeting in
alleged violation of prohibitory orders.
The case was filed at Gorakhpur’s Pipi-
ganj police station on May 27, 1995.
This order came a day before the Ut-
tar Pradesh Criminal Law (Composition
of Offences and Abatement of Trials)
(Amendment) Bill, 2017 was tabled in
the assembly. Adityanath told the House
that 20,000 “politically-motivated”
cases were filed across the state over
pro-test demonstrations. This amend-
ment will end all these cases pending
before magistrates.
A
ccording to media reports, the
prosecuting officer in Gorakhpur
received an order from the state
government asking him to withdraw the
case. However, the withdrawal applica-
tion was rejected by the court.
Section 321 of the CrPC, 1973, which
deals with withdrawal from prosecution
(see box) says: “The Public Prosecutor
or Assistant Public Prosecutor in charge
of a case may, with the consent of the
Court… withdraw from the prosecution
of any person….” However, the UP gov-
ernment made the following amend-
ment: “….in charge of a case may on the
written permission of the State
Government to that effect….”
According to a report by the Asso-
ciation for Democratic Reforms, out of
402 legislators in UP, 143 (36 percent)
have criminal cases against them, show-
ing the deep malaise pervading the
political system in this state. And yet,
the government instead of tackling it,
has sided with the criminals.
Incidentally, according to Section 321
of the CrPC, 1973, a public prosecutor
or an assistant public prosecutor can
withdraw cases against a person only
after obtaining written permission from
the state government and getting an
okay from the court. They have to be
filed before the pronouncement of the
judgment. There have been cases in the
past where the public prosecutor has
followed this rule.
In the case of Sheonandan Paswan
versus State of Bihar, (1983), the Sup-
reme Court ruled that the “ultimate
decision to withdraw from the prosecu-
tion should be of Public Prosecutor.
Before an application is made under
Section 321, the Public Prosecutor has
to apply his mind to the facts of the case
independently without being subject to
any outside influence. The government
may make suggestion but cannot com-
pel the Public Prosecutor. The Public
Prosecutor may receive any instruction
from the government but it is not neces-
sary for him to abide by it. The Public
Prosecutor has to apply his own inde-
pendent mind before moving the appli-
cation under Section 321 CrPC. Public
Prosecutor has a right to disagree with
the government instruction and may
refuse to move application for with-
drawal of prosecution”.
This was also reiterated in State of
Andhra Pradesh versus P. Anjaneyulu,
(1984) and N. Natarajan versus B.K.
Subba Rao (2003).
In Sheonandan Paswan versus State
of Bihar, (1987), the apex court held that
“while considering the application
moved by the Public Prosecutor, the
court has to see that the application is
InS.K.ShuklaversusStateofU.P.,
(2006),theapexcourtruledthat“the
PublicProsecutorcannotworklikeapost
boxoractonthedictatesoftheState
Govt.Hehastoactobjectively....”
POWER PLAY
The UP government recently ordered the
withdrawal of a 22-year-old case against CM
Yogi Adityanath and 12 others

18 January 15, 2018
the judiciary makes the final decision by
approving or disapproving the decision
of Public Prosecutor.”
In Rahul Agarwal versus Rakesh Jain
and anr, 2005, the Supreme Court held
that “it may be permitted when valid
reasons are made out for the same and
it can be allowed only in the interest of
justice. It shall be obligatory for the
court to consider all relevant circum-
stances and find out whether the with-
drawal of prosecution advances the
cause of justice. Discretion under
Section 321 should not be exercised to
stifle the prosecution. Withdrawal can
be permitted if the case is likely to end
in an acquittal and the continuance of
the case is only causing severe harass-
ment to the accused or to bring out har-
mony between the parties.”
Despite this background, the manner
in which the two cases have been
brushed under the carpet is not a good
sign for justice and the rule of law.
“The Public Prosecutor or Assistant
Public Prosecutor in charge of a
case may, with the consent of the
Court, at any time before the judg-
ment is pronounced, withdraw from
the prosecution of any person
either generally or in respect of any
one or more of the offences for
which he is tried; and, upon such
withdrawal, –
a) if it is made before a charge has
been framed, the accused shall be
discharged in respect of such
offence or offences;
b) if it is made after a charge has
been framed, or when under this
Code no charge is required, he
shall be acquitted in respect of
such offence or offences: Provided
that where such offence—
was against any law relating to a
matter to which the executive
power of the Union extends, or
was investigated by the Delhi
Special Police Establishment under
the Delhi Special Police Establish-
ment Act, 1946 (25 of 1946), or
involved the misappropriation or
destruction of, or damage to, any
property belonging to the Central
Government, or
was committed by a person in
the service of the Central Govern-
ment while acting or purporting to
act in the discharge of his official
duty, and the Prosecutor in charge
of the case has not been appointed
by the Central Government, he
shall not, unless he has been
permitted by the Central Govern-
ment to do so, move the Court
for its consent to withdraw from
the prosecution and the Court shall,
before according consent, direct
the Prosecutor to produce before
it the permission granted by
the Central Government to with-
draw from the prosecution.
Roledefined
What does Section 321 of the
CrPC say about withdrawal
from prosecution?
made in good faith in the interest of
public policy and justice and not to
thwart or stifle the process of law or suf-
fers from such improprieties or illegali-
ties as to cause manifest injustice if con-
sent is given by the court.”
In S.K. Shukla versus State of U.P.,
(2006), the apex court ruled that “the
Public Prosecutor cannot work like a
post box or act on the dictates of the
State Govt. He has to act objectively as
he is also an officer of the court. The co-
urt has to assess freely whether a case is
made out for withdrawal of prosecution
or not. It is always open for the court to
reject the prayer.”
In Mahmadhusen Abdulrahim
Kalota Shaikh, (2009), the Court held
that “Section 321 Cr.P.C. is a codified
version of judicial review. It ensures that
STRONG SUPPORT
(Above) Hindu Sena activists demonstrating
at Union Home Minister Rajnath Singh’s
residence in support of Pragya Thakur; Lt Col
Prasad Purohit
Legal Eye/ Saffron Impact

Supreme Court/ Important Disputes
20 January 15, 2018
Constitutional validity of linking
Aadhaar with services
Date of hearing: January 17, 2018
There are 24 petitions before the apex
court challenging the validity of
Aadhaar. The constitutional bench
headed by CJI Dipak Misra and com-
prising Justices AK Sikri, AM
Khanwilkar, DY Chandrachud and
Ashok Bhushan had passed an order
extending the date for linking Aadhaar
to all services to March 31, 2018. Justice
Anand Byrareddy (former judge of
Karnataka High Court) has also filed an
impleadment application challenging
the provisions of Aadhaar in the Court.
Nirbhaya gang rape
A Supreme Court bench comprising CJI
Dipak Misra, Justices R Banumathi and
Ashok Bhushan had admitted a review
petition by Mukesh Singh (one of the
four convicts sentenced to death in the
Nirbhaya case) against the Court’s May
5 judgment wherein it had upheld the
Delhi High Court’s ruling awarding
death sentence to all four, calling it the
“rarest of rare” crimes. The petitioner’s
advocate contended that he was falsely
implicated and was not even present at
the time of the incident. Hearing of the
review petition was held on December
12, 2017.
Hadiya case
Date of hearing: 3rd week of January
The Kerala High Court had annulled the
marriage of Hadiya (formerly Akhila)
and Shafin Jahan in May 2017 as it was
dissatisfied with the manner in which it
was conducted. It also granted custody
of Hadiya to her father. Two months
later, Jahan filed a Special Leave
Petition (SLP) against the High Court’s
order. In the last hearing, the Supreme
Court allowed Hadiya to continue her
studies and appointed her college’s dean
as her guardian.
2018: Vital
Cases to be Heard
ThisyearwillseesomeimportantcasescomingupintheSupremeCourt,beitthe
contentiousAadhaarissue,theBabriMasjiddisputeorthetusslebetweenDelhi’schief
ministerandlieutenantgovernor.TheyallhavewidespreadramificationsforIndiansocietyand
thevariousfreedomsenshrinedintheConstitution
By Sandeep Kumar

Identity of Parsi women after
mixed marriage
A Supreme Court constitution bench
will decide the religious identity of a
Parsi woman whose marriage is perfor-
med under the Special Marriages Act.
Deportation of Rohingyas
A petition was filed by two refugees
against the government’s decision to
deport over 14,000 Rohingyas who are
said to be illegal migrants residing in
India, largely in Jammu, Hyderabad,
Haryana, Uttar Pradesh, Delhi-NCR
and Rajasthan. On December 5, 2017, a
Supreme Court bench headed by CJI
Dipak Misra posted all petitions con-
cerning the deportation of Rohingyas
for hearing on January 31.
Ram Janmabhoomi-Babri Masjid
title dispute
Date of hearing: February 8, 2018
The Allahabad High Court in its 2010
judgment had ruled a three-way division
of the disputed 2.77-acre area at
Ayodhya among the Sunni Waqf Board,
Nirmohi Akhara and Lord Ram Lalla. A
Supreme Court bench comprising CJI
Dipak Misra, Justices Ashok Bhushan
and Abdul Nazeer will hear 13 appeals
filed against the judgment of the High
Court. On December 5, 2017, the
Supreme Court rejected an appeal for
hearing the matter post July 2019 and
fixed the hearing for February 8, 2018.
Delhi CM vs Lt Governor power tussle
Judgment reserved
The AAP government filed an appeal
challenging a Delhi High Court’s verdict
which held the lieutenant governor the
administrative head of the national cap-
ital. On December 6, 2017, the Supreme
Court bench headed by Chief Justice of
India Dipak Misra and comprising Jus-
tices AK Sikri, AM Khanwilkar, DY
Chandrachud and Ashok Bhushan
reserved judgment on whether the L-G
or the Delhi government enjoyed
supremacy in administration on a day-
to-day basis.
Cauvery water dispute
Judgment reserved
Appeals were filed by Tamil Nadu,
Karnataka and Kerala against the 2007
award of the Cauvery Water Dispute
Tribunal on sharing of the river water
for 15 consecutive working days. Last
year on September 21, the Supreme
Court bench comprising CJI Dipak
Misra, Justices Amitava Roy and AM
Khanwilkar reserved its order on the
said petitions. On October 18, 2016, a
Supreme Court bench headed by Justice
Misra, in an interim order, had directed
Karnataka to continue releasing 2,000
cusecs of water to Tamil Nadu till fur-
ther orders.
Decriminalisation of Section 377
The Naz Foundation has filed a curative
petition seeking quashing of Section 377
which criminalises homosexuality. Three
celebrities also approached the Supreme
Court seeking quashing of the section.
The celebrities, who belong to the LGBT
Constitutional validity of Article 35A
A petition was filed by Supreme Court
lawyer Charu Wali Khanna challenging
the constitutional validity of Article 35A
which confers special rights and privi-
leges to the permanent residents of
Jammu and Kashmir. The Supreme
Court also included a petition filed by
the Delhi-based NGO, We the Citizen,
challenging this Article.
Euthanasia/“Living will”
Common Cause, an NGO, has filed an
appeal for allowing a person suffering
from terminal illness to execute his “liv-
ing will”, indicating that he should not
be kept on life support if there was no
hope of cure. The NGO argued that
Article 21, which guarantees right to life,
also includes right to die peacefully. On
October 11, 2017, the Supreme Court re-
served its judgment on the said petition.
community, said their lives were inexor-
ably constricted and their rights infrin-
ged upon by such a provision. The Sup-
reme Court judgment, dated August 24,
2017, which declared privacy a funda-
mental right, had brought cheer to the
community and raised their hopes.

According to reports, 22 judges of the
Allahabad High Court will retire in
2018, but so far there have been no rec-
ommendations to fill the vacancies that
will result. Among the judges slated to
retire are Chief Justice Dilip Babasaheb
Bhosale. Sources say that there may not be
new appointments in the next six months.
Allahabad High Court has an approved
strength of 160 judges, which includes the
principal bench situated at the High Court
and the Lucknow bench. The current
strength is 100. The retirement of judges
is likely to severely affect pendency.
Vacancies will also be created in the
Supreme Court this year with six judges
retiring. Nine high courts are also waiting
for the appointment of chief justices as
they are currently functioning with acting
chief justices. However, the scenario looks
bleak with Minister of State for Law and
Justice and Corporate Affairs PP Chau-
dhary saying in parliament recently that
the centre was yet to receive any prop-
osals for new appointments from the
higher judiciary.
22 January 15, 2018
Briefs
The Delhi High Court, while
hearing the Jigisha Ghose
murder case, commuted the
death sentence of two convicts
to life term and upheld the life
sentence awarded to the third,
saying that the crime did not fit
into the rarest of the rare
category and therefore would
not attract capital punishment.
Ghose, a Delhi-based business
executive, was abducted and
murdered on March 18, 2009.
Sabita Ghose, mother of the
victim, broke down, saying that
the court’s order seemed like her
daughter had been “killed a
second time”. The three convicts
are also facing trial in the
murder of a journalist, Soumya
Vishwanathan, who was found
dead in her car on September
30, 2008.
Jigisha
Murder:
death penalty
reduced to
life by Delhi
High Court
—Compiled by Lilly Paul
Sanjay Leela Bhansali’s
Padmavati will now see the
light of day as the Central Board
of Film Certification led by Pras-
oon Joshi has decided to clear
the movie with a U/A certificate.
The board also introduced five
modifications and suggested
the director change the title of
the movie to Padmavat. The
movie was reviewed by a special
panel comprising two historians
and Arvind Singh Mewar, a
member of the royal family, and
two academicians—Dr
Chandramani Singh and Prof
KK Singh of Jaipur University.
However, Mewar later wrote a
letter to Information and
Broadcasting Minister Smriti
Irani expressing his dissatisfac-
tion with the movie because,
despite the modifications, it was
historically inaccurate.
Pendency may go up in
Allahabad HC
In what seemed to
be NGT’s moment
of shame, the Dec-
ember 8 judgment
delivered by the green
court had a paragraph
taken verbatim from a
paper published in
Environmental Law
Review. The verdict,
delivered by a bench
headed by former
chairperson Swatan-
ter Kumar, had a para-
graph lifted from the
paper titled “Wildlife
Corridors in India:
Viable legal tools for
species conservation”.
The paper was au-
thored by Raghav
Srivastava and Richa
Tyagi, senior prog-
ramme officers at the
Centre for Environ-
mental Law, World-
wide Fund for Nature.
The verdict had inclu-
ded the lifted para-
graph while taking
note of the protection
of the elephant popu-
lation and the relief
that could be granted.
Padmavati becomes
Padmavat,gets
clearedbyCBFC
Constructions around
protected monuments
The Lok Sabha has passed a
bill which allows the govern-
ment to take up infrastructure
projects within 100 metres of
protected monuments for public
purposes. Except for renovation
and repair works, no new constr-
uction around the protected mo-
numents was allowed so far. Acc-
ording to the BJP, the Ancient
Monuments and Archaeological
Sites and Remains (Amend-
ment) Bill, 2017 was hampering
public projects and development.
NGT’s goof-up?

Acts & Bills/ Muslim Women (Protection of Rights on Marriage) Bill
24 January 15, 2018
N December 29, Ishrat
Jahan—one of the peti-
tioners who had success-
fully moved the Supreme
Court to get instant triple
talaq declared illegal—
joined the BJP and hailed Prime Minis-
ter Narendra Modi for ensuring that the
top court’s August 22 verdict was grant-
ed legislative form.
A Muslim woman’s endorsement of
the leadership of Modi, the Hindu Hri-
day Samrat, over an issue that is ex-
tremely polarising within her communi-
ty should have been seen as emphatic
approval of the Muslim Women (Pro-
tection of Rights on Marriage) Bill,
which was passed by the Lok Sabha a
day earlier. But this has not been the
case so far.
The Bill, which proposes to make
talaq-e-biddat or instant triple talaq a
cognisable offence punishable with a
three-year jail term for any Muslim hus-
The Politics of Triple Talaq
Theslug-festoverthisBillendedtemporarilywiththeRajyaSabhabeingadjournedbutthe
battle-linesarefirmlydrawnoverthefateofMuslimwomenfacinginstantdivorce
By Puneet Nicholas Yadav
OFALSE HYPE?
Muslim women offer sweets to
one another in New Delhi after
the triple talaq Bill was passed
in the Lok Sabha in December
UNI

“Thecourtneveraskedforcriminalisationoftriple
talaq,eventheminorityverdictonlycalledforalaw
butnotacriminalone.Wesupportthedeclarationof
instanttripletalaq asvoidbutitshouldbeseenasa
matterofdomesticviolence.”
—IndiraJaising,senioradvocate
“Thesoleintentofthelegislationistocriminalise
tripletalaq,turnacivilcontractofMuslimmar-
riageintoacriminalissueandtargetMuslimmen,
clearlywithapoliticalagenda.”
—KapilSibal,senioradvocateandCongressMP
band, has polarised the political and
social discourse.
ENDS ON IMPASSÉ
After smooth passage in the Lok Sab-
ha—aided purely by the brute majority
that the BJP enjoys there—the Bill could
not be passed by the Rajya Sabha. Un-
willing to yield to a united and agitated
Opposition’s demand for referring the
Bill to a select committee, the Modi gov-
ernment preferred allowing the Bill to
lapse at the end of the winter session on
January 5. This was after allowing three
consecutive sittings of the Upper House
to be almost washed out due to the
impassé over the legislation. It remains
to be seen if the government decides to
re-draft the Bill or tries to bulldoze it in
its current form once again through
both Houses.
In its December 18 edition—pub-
lished before the contents of the Bill
were put in the public domain—India
Legal had reported how the centre had
virtually draped the legislation in a
shroud of secrecy. Rajnath Singh, Arun
Jaitley, Sushma Swaraj, Ravi Shankar
Prasad and his deputy, PP Chaudhary,
who were part of the group of ministers
that drafted this legislation, had made
no effort to reach out to stakeholders in
seeking their suggestions for the draft
law (see box). It is highly probable that
had the central government sought
diverse opinions on provisions that
could effectively end talaq-e-biddat, the
strident opprobrium triggered by the
Bill could have been averted.
Jaitley and Prasad have repeatedly
said over the past few days that the Bill
is a necessary and a natural corollary to
the Supreme Court’s verdict which had
directed the centre to bring in a law
banning instant triple talaq within six
months of the judgment. The Congress-
led Opposition countered this with eq-
ual gusto, asserting that while it sup-
ports any legislation that works towards
women’s empowerment and outlaws
talaq-e-biddat, it is constrained to
oppose the Bill in its current form
because it is flawed.
SC OBSERVATIONS
A cursory glance at the verdict delivered
in the Shayara Bano case shows that the
claims made by Jaitley and Prasad are
based on a selective reading of the judg-
ment—more specifically, of the minority
verdict delivered by then Chief Justice
JS Khehar and Justice S Abdul Nazeer.
This verdict says: “We... direct the
Union of India to consider appropriate
legislation, particularly with reference to
‘talaq-e-biddat’. Till such time as legisla-
tion in the matter is considered, we are
satisfied in injuncting Muslim hus-
bands, from pronouncing ‘talaq-e-bid-
dat’ for a period of six months.”
However, the majority verdict—deliv-
ered by Justices Kurien Joseph, Rohin-
ton Nariman and UU Lalit—had over-
ruled the minority verdict and declared
instant triple talaq “arbitrary, unconsti-
tutional, illegal and even un-Islamic”.
On Chief Justice Khehar and Justice
Nazeer’s conclusion that talaq-e-biddat
was part of religious freedom and their
recommendation for legislative recourse
to correct it, Justice Joseph had held
VOICING CONCERNS
Congress leader Anand Sharma arguing
against the triple talaq Bill in Parliament

What are your views on the Muslim
Women (Protection of Rights on
Marriage) Bill?
I welcome the government’s move to
declare instant triple talaq illegal and pun-
ishable. However, there are several reser-
vations that we at the BMMA have against
the Bill and we have written to various
ministries outlining our point of view. We
feel that while the draft law is correct in
declaring talaq-e-biddat illegal, it should
not make the practice a cognisable off-
ence. The government would have done
better if it had laid out a codified proce-
dure for divorce in the Muslim community
after factoring-in Quranic provisions. Sev-
eral provisions of the draft Bill like those
on subsistence allowance and custody of
minor children for the wife appear to be
counter-productive. Also, by making talaq-
e-biddat a cognisable offence, the centre
has left no scope for reconciliation bet-
ween the husband and wife which is the
basic requirement in the Quran in decid-
ing whether a divorce can be granted
or not. In a way, while the law terms
“IshratJahanbeingusedforpoliticalgains”
26 January 15, 2018
“it is not for the Courts to direct for
any legislation.”
Justices Nariman and Lalit had ques-
tioned the authors of the minority ver-
dict on their recommendation for legis-
lation, saying: “When petitions have
been filed under Article 32 of the Cons-
titution of India, is it permissible for us
to state that we will not decide an
alleged breach of a fundamental right,
but will send the matter back to the leg-
islature to remedy such a wrong?” The
All India Muslim Personal Law Board
(AIMPLB) had urged the Bench to let
Parliament outlaw instant triple talaq.
To this plea, Justices Nariman and Lalit
had ruled that “the submission... that
the ball must be bounced back to the
legislature does not at all arise”. It is evi-
dent that the majority verdict of the
apex court did not favour legislation
against talaq-e-biddat. The practice had
already been made illegal by the Court.
PRASAD’S CLAIM
Prasad has claimed repeatedly that cases
of instant triple talaq have been report-
ed despite the apex court declaring it
illegal. He told the Lok Sabha that over
100 cases had come up since the Sup-
reme Court verdict and hence, there was
a need for deterrent legislation.
There is some merit in this argu-
ment. Former Union Minister Arif
Mohammed Khan, who was also one of
the lawyers demanding outlawing of
talaq-e-biddat in the Supreme Court,
explained to India Legal: “In the ab-
sence of a law against talaq-e-biddat,
how will violators be punished… under
which law will a Muslim wife seek jus-
tice?” Khan, in fact, worked behind the
scenes to convince Modi regarding a
strong law against talaq-e-biddat. He
reportedly had a meeting with the prime
minister and discussions with officials of
the Union law ministry in October to
convince them that the practice should
be made a cognisable offence. Khan’s
views, however, are not shared by others
who fought for getting talaq-e-biddat
declared illegal.
MANY CONTRADICTIONS
Senior lawyer Indira Jaising, who had
also appeared in the Shayara Bano case,
is unsparing in her criticism of the Bill.
She told India Legal: “This is not what
Zakia Soman, co-founder of the Bharatiya Muslim Mahila Andolan, was one of the petitioners in the Supreme Court
demanding a ban on instant triple talaq. But she tells Puneet Nicholas Yadav that the draft Muslim Women
(Protection of Rights on Marriage) Bill was formalised without consulting all stakeholders
UP IN ARMS: Muslim women protesting
against the controversial provisions of the
triple talaq Bill in New Delhi on Jan 4, 2018
Acts & Bills/ Muslim Women (Protection of Rights on Marriage) Bill
UNI

Muslim man who has pronounced
instant triple talaq in a fit of rage. The
Bill makes him instantly liable for a
three-year jail term as it doesn’t grant
the wife the right to file or not file a
complaint. Given that the Bill contains a
statutory and mandatory declaration of
criminality, it appears that the offence
made out against the husband cannot be
compounded or withdrawn. Thus, the
State will be free to prosecute him even
if the wife wants to withdraw the case
and work towards reconciliation.
One doesn’t know if Jahan under-
stood these nuances of the Bill when she
praised Modi for the “revolutionary law”
and joined the BJP. It is, however, clear
that the legislation raises major con-
cerns over the disastrous implications
for Muslim marriages. It will be a long
wait till the next session of Parliament
to see whether politics triumphs over
judicial reasoning, prudence and social
consciousness or vice versa.
instant triple talaq illegal, its provisions
ensure that divorce pronounced through
this method is final and dissolves
a marriage.
Could the government have avoided
the protests over the draft Bill if it had
held discussions with all stakeholders
on the proposed provisions?
Absolutely. The government did not feel
the need to go through the democratic
process of inviting suggestions and
recommendations from stakeholders
on such crucial legislation which would
decide the fate of scores of Muslim
women and their families. The proper
channels of drafting a law were not fol-
lowed. Even the BMMA or the other
petitioners who had moved the Supreme
Court against instant triple talaq
were not consulted.
But one of the petitioners, Ishrat
Jahan, has joined the BJP and hailed
Prime Minister Narendra Modi for
bringing in this law.
I have great sympathy for Ishrat Jahan. I
think she is being used for political
gains. But then, it is the Muslim political
leadership of West Bengal—be it the
Trinamool Congress, the Congress or
the Left—which should reflect on why
Ishrat joined the BJP. Why did these sec-
ular parties and the Muslim leaders of
the state not stand by her when she
was abandoned after her husband
divorced her by pronouncing talaq-e-
biddat? She is not a very educated
woman and possibly doesn’t under-
stand the problems with the draft law,
but she is obviously happy that instant
triple talaq has been outlawed.
Is the Modi government really serious
about outlawing instant triple talaq?
We should focus on the fact that instant
triple talaq is an obnoxious practice and
should be outlawed. Unfortunately, it has
become a political issue and we know
that the BJP will only use it for political
gains like it did in Uttar Pradesh. But we
can’t fault it for extracting mileage out of
this. The rights of Muslim women and
the plight of talaq-e-biddat victims has
never been the real motivator for our
political class—be it the BJP or the
Congress. That makes me sad because
in the end, Muslim women stand to gain
very little out of a move being publicised
as a panacea for our problems.
we fought for in the Supreme Court.
The Court never asked for criminalisa-
tion of triple talaq, even the minority
verdict only called for a law but not a
criminal one. We support the declara-
tion of instant triple talaq as void but it
should be seen as a matter of domestic
violence. What protection does the Mus-
lim wife get if the husband is sent to jail
for pronouncing talaq thrice? How will
she sustain herself? Will imprisoning
the husband not mean that triple talaq
results in dissolution of marriage?”
The legislation is also fraught with
contradictions. Senior lawyer and
Congress Rajya Sabha MP Kapil Sibal,
who represented the Muslim Personal
Law Board, told India Legal: “This is a
Bill that has been drafted without any
application of the mind. Section 3 of the
Bill seeks to declare illegal a practice
that has already been declared void by
the Supreme Court. Instant triple talaq
would still be void if this legislation was
not brought in. The sole intent of the
legislation is to criminalise triple talaq,
turn a civil contract of Muslim marriage
into a criminal issue and target Muslim
men, clearly with a political agenda.”
The contradictions within the Bill go
beyond Section 3. Take Sections 5 and 6,
for example. These propose a “subsis-
tence allowance” for a Muslim woman
who is a victim of talaq-e-biddat and
declare that she is entitled to the cus-
tody of her minor children. They raise a
peculiar contradiction. “Sections 5 and 6
of the Bill discuss post-divorce issues as
if the Muslim woman’s marriage is dis-
solved by the mere pronouncement of
talaq-e-biddat, although Section 3 says
instant triple talaq is illegal. The authors
of this Bill, in a matter of two brief para-
graphs, have ignored that post-divorce
provisions cannot be made when the
divorce itself has been voided,” says A
Faizur Rahman, secretary-general of the
Chennai-based Islamic Forum for the
Promotion of Moderate Thought.
Here's what would happen to a
IMPRESSED BY PM MODI
Ishrat Jahan, who had also moved the SC
against triple talaq, has joined the BJP

28 January 15, 2018
HE Muslim Women
(Protection of Rights on
Marriage) Bill, 2017,
reminds me of the
doggerel about the
Chaubay who went on to
become a “Chhabbe” but
came back a Dubey! There is grotesque
irony in the idea that a law designed to
provide security to Muslim women
within marriage hastens the break-up of
the marriage by sending the erring hus-
band to jail! When the Supreme Court
called upon the legislature to set up a
law on triple talaq, creating a new class
of criminals was not quite what it may
have had in mind!
A little context would not be out of
place here. Recall that a five-judge
bench decided by a narrow margin of
three to two in Shayara Bano v Union of
India that the practice of triple talaq
was unconstitutional. Justice Rohinton
Fali Nariman (with whom Justice UU
Lalit concurred) ruled that it was not
“essential religious practice”. He then
held that the practice is whimsical, arbi-
trary and, therefore, void. Justice Kurian
Joseph grounded his decision on this
essential question: Since the Quran does
not sanction triple talaq, can it be legally
right? In culmination, he ruled that the
divorce practice is not integral to reli-
gion nor can religious practice override
fundamental rights. In his view, what is
bad in the Holy Quran cannot be good
in Shariat and what is bad in theology is
also bad in law.
It was left to then Chief Justice of
India JS Khehar (with Justice S Abdul
Nazeer) to speak for the minority view.
Justice Khehar held the practice to be a
religious one and also that it was not
contrary to public order, morality or
health. He then ruled that a religious
practice has the same status as constitu-
tionally guaranteed rights, and that
courts cannot interfere with them: only
the legislature can! That set the ball
bouncing back to where it should have
stayed in the first place.
I must admit I find this judgment
deeply disappointing. To understand
Justice Khehar’s logic is above all to
understand that he applied not enough
of it. In his own words, “Religion is a
matter of faith, and not of logic. It is not
open to a court to accept an egalitarian
approach, over a practice which consti-
tutes an integral part of religion.”
If Raja Rammohan Roy had taken
this view, we would have had ladies
flinging themselves on funeral pyres.
Even more, the idea that personal law
has the same status as fundamental
rights is, to put it politely, extraordinary
jurisprudential creativity! It shouldn’t
be that hard to understand that the
issue is basically about equal protection
of the law.
We live in a society that demands
that both the Shani Shingnapur temple
in Ahmednagar and the Haji Ali Dargah
in Mumbai be opened to women.
Indians overwhelmingly now believe
women are equal to men and should be
treated accordingly.
I
t’s not every day that the Supreme
Court constitutes a five-judge bench
to advance the discourse on a con-
tentious legal issue. This judgment was
an opportunity especially since India is
struggling to contain the excesses of
religious fundamentalism. We think a
loudspeaker atop a temple or a proces-
My Space Ranjeev C Dubey/ Triple Talaq Bill
T
Triple
Whammy
Theironyishardtomisswhen
alawdesignedtoprovidesecurity
toMuslimwomenwithinmarriage
hastensitsdissolutionbysending
theerranthusbandtojail
A STUDY IN CONTRADICTIONS
Muslim men in Mumbai protest against the
Bill while women (on facing page) celebrate
Photos: UNI

allowance for her and dependent chil-
dren as may be determined by the mag-
istrate”. Why a Muslim woman should
merely “subsist” while Hindu men
“maintain” their estranged wives is diffi-
cult to understand.
It legislates that “a married Muslim
woman shall be entitled to custody of
her minor children in the event of pro-
nouncement of talaq by her husband”.
Given that the man is headed for three
years in jail, would you say there are
really other viable options?
F
rom the narrow perspective of
gender justice, there is precious
little to show for the judicial time
expended by the five-judge bench.
Muslim women need to have the same
benefits Hindu women do. If the
Supreme Court couldn’t deliver com-
plete gender justice without being
accused of usurping the legislative func-
tion, then it was for the parliament to
assume the jurisdiction it always had
and do the right thing. Instead, it has
engaged in peripheral symbolism that
alters very little.
Cynical as it may sound, I am com-
pelled to draw the conclusion that the
political classes have done the most to
provide maximum fodder to the frothing
poison-heads on the idiot box while
doing the least to avoid upsetting the
delicate balance we call India’s political
status quo.
The author is managing partner
of a Gurugram-based
corporate law firm.
sion on the street is “religious practice”,
thus sanctifying bedlam. We “worship”
our cows, creating room for vigilante
goons to lynch cattle traders. We need
our jurisprudence to take its next sub-
stantial step to eliminate religion as an
acceptable public practice. In failing to
do this, the judgment failed us. That
does not mean that the legislature could
not fix it. Did it?
A quick examination of this new
statute reveals that there are just about
four things it tries to do, of which three
add value. Thus:
The Bill declares: “Any pronounce-
ment of talaq by a person upon his wife,
by words, either spoken or written or in
electronic form or in any other manner
whatsoever, shall be void and illegal.”
Since the Supreme Court has already
done that for us, this is no benefit at all.
Second, this law holds that “Whoever
pronounces talaq… upon his wife shall
be punished with imprisonment for a
term which may extend to three years
and fine.” Thus, it prevents failing mar-
riages from breaking up by sending the
husband to jail.
Third, it holds that “a married Muslim
woman upon whom talaq is pronounced
shall be entitled to receive from her hus-
band such amount of subsistence
IftheSupremeCourtcouldn’tdeliverfull
genderjusticewithoutbeingaccusedof
usurpingthelegislativefunction,thenit
wasfortheParliamenttodotheright
thing.Instead,ithasengagedinperipher-
alsymbolismthataltersverylittle.
FRAGILE BOND
(Right) Newlyweds
at a mass marriage
for Muslims in
Ahmedabad. Some
analysts have
criticised the triple
talaq Bill for
hastening the
breakup of
marriages
rather than
promoting
reconciliation

Cyber Crime/ Online Portal
30 January 15, 2018
NDIA is seeing a new kind of rev-
olution. This is the Great Indian
Vomiting Revolution with people
vomiting data about their person-
al, professional and social lives
without understanding the legal
ramifications. Shockingly, as more and
more Indians experiment with their
lives, bodies and digital content, we are
increasingly seeing more rape and porn
revenge videos being generated.
A couple of years back, numerous
gang rape videos were circulated on
WhatsApp. Due to the extreme nature
of the videos, the Supreme Court was
forced to take suo motu notice of them.
The Court directed that criminal cases
be registered against the relevant per-
sons. However, the bigger question is
how will India come up with a citizen-
friendly approach by law enforcement
agencies to encourage more proactive
Help Is Just a Click Away
Withthecentreissuingguidelinesforsettingupawebsitetoreportsuchcrimes,
succourisathandforvictims,providedtheiridentityisnotrevealedandthere
islessharassmentfromthepolice
By Pavan Duggal
I
Anthony Lawrence

Veryfewcaseshavebeenregistered
underSections67,67Aand67Bofthe
InformationTechnologyAct.Further,the
rateofconvictionsunderthesesections
hasnotbeenencouraging.
reporting of gang rape and revenge
porn videos?
DOUBLE TRAUMA
Today, Indian society, despite all the ele-
ments of modernity, still stigmatises vic-
tims of gang rape and revenge porn
video. As of now, there are no effective
mechanisms to report such videos in a
manner that protect the identity of the
victim and ultimately provide comfort to
her. Previous experience has shown that
there was massive underreporting of
such videos because the victim after
undergoing one type of trauma, had to
go through another type as she tried to
report the matter to the police. The
police not only takes its own sweet time
in the registration of cases, but also asks
insensitive questions that tend to trau-
matise the victim even further.
Hopefully, things will begin to
change now. The home ministry is set to
issue guidelines to internet service
providers and other stakeholders to pro-
vide for the creation of a centralised
portal where the reporting of such
videos can be done efficiently and effica-
ciously without fear of negative publicity
and harassment at the hands of the
police. The concept of such a centralised
portal has been in existence for the last
many years, but seems to have become a
reality only now. The move follows
directions from the apex court on set-
ting up such a portal by January 10 and
came after a plea by NGO Prajwala
which highlighted the availability of
these videos online.
While there is no doubt about the
negative and harmful aspects of such
videos, they also constitute offences
under Sections 67, 67A and 67B of the
Information Technology Act, 2000.
Often, the victims of these videos are
minors and therefore, these crimes fall
under Section 67B which entails punish-
ment for publishing or transmitting
material depicting children in
sexually explicit acts and so on, in elec-
tronic form.
Despite the Act being amended in
2008 and the law providing substantive
legal provisions pertaining to the publi-
cation and transmission of porn materi-
al that is lascivious and has explicit sex-
ual content, the practical implementa-
tion is riddled with problems. Very few
cases have been registered under
Sections 67, 67A and 67B of the Infor-
mation Technology Act. Further, the
rate of conviction under these sections
has not been encouraging. It is impera-
tive that appropriate protective reme-
dies be provided to a victim. Creation of
a national portal for reporting such
videos will be a step in the right direc-
tion. However, the right to report in an
anonymous manner needs to be intrinsi-
cally recognised within these rules.
Further, there should be adequate
legal provisions regarding storage and
retention of these videos on computer
networks. This is important as publica-
tion or intent to publish such obscene
content is itself an offence under the
Act. Hence, the balancing of various
conflicting requirements needs to be
kept in mind.
However, creating such a portal and
encouraging people to report such con-
tent is only the first step in a long jour-
ney. Victims of gang rape and revenge
porn videos have an implicit expectation
that the perpetuators of sexual crimes
will be identified, arrested, prosecuted
and convicted. There is also the provi-
sion of assurance to the victims that
their complaints would be adequately,
efficiently and efficaciously dealt with to
bring the offenders to book.
In a society where deviant behaviour
is on the rise, it is imperative that the
law provide a deterrent message to
offenders. Merely having legal frame-
works won’t suffice. These frameworks
need to be efficiently implemented to
provide justice to the victims of sexual
abuse who live a life of trauma.
The author is an advocate in the
Supreme Court and a leading expert
on cyber law, cyber security law and
mobile law
I
n 2011, a case was registered
against several cyber giants such as
Facebook India, Google and others. It
highlighted loopholes in monitoring
offensive content. The case was filed by
Vinay Rai in Patiala House Court under
Sections 200 and 156(3) of the CrPC
and Sections 153A, 153B, 292, 293,
295A, 298, 109, 500, and 120B of
the IPC.
The complaint stated that the
accused parties provided services for
electronic content and as such were
accountable for it. They also act as
hosts for inflammatory content which
could destroy the secular fabric of the
country. This content, the complaint
said, was demeaning, degrading and
obscene and could affect religious sen-
timents, and create an environment of
fear and insecurity. It was stated that so
much objectionable material could lead
to communal riots and corrupt the
minds of those below 18 years. These,
it stated, could not be considered under
freedom of speech and expression. It
said that such content fomented enmity
on the basis of race, place of birth, resi-
dence and language.
Such obscene content, it noted,
could be easily downloaded and print-
ed. It said that social networking sites
are created only for the purpose of pro-
viding educational, historical, and
research content as part of their com-
mercial activities. Though the case was
disposed of, it helped highlight the
defects in monitoring online content.
CaseagainstFB,Google

Neela Gokhale/ Adultery
32 January 15, 2018
EWS reports tell us that
two bills have been
passed in the Lok Sabha,
to repeal as many as 245
obsolete and archaic
laws. However, the trans-
formation in feminine attitudes, a great-
er understanding of gender-sensitive iss-
ues—for good or bad—should justly en-
gage the attention of lawmakers, while
undertaking the exercise of repealing
archaic laws.
Several important issues also need to
be addressed, such as whether consen-
sual sex between two consenting adults
is a private act and if the legislature
should intervene in the matter.
The law related to adultery was
enacted to maintain the sanctity of the
institution of marriage and it needs to
be seen whether the sanctity of this
sacred institution can be enforced by
prosecution, and in any case, if a spouse
commits adultery, then whether prose-
cution of the person prevents the break-
down of marriage.
Adultery as defined in Section 497
IPC means sexual intercourse by a man
with a woman who is the wife of anoth-
er man and the intercourse must take
place without the consent of the hus-
band and also while the man knows the
woman to be the wife of another man.
The Section further provides that the
woman so committing adultery shall not
be punishable as an “abettor”. The offen-
ce appears in the category of “Offences
against a Man” in the penal code.
The corollary of the provision indi-
cates that the wife of the man commit-
ting adultery cannot prosecute either
her own husband nor the woman in-
volved with her husband. Similarly, the
man whose wife has committed the act
cannot prosecute his wife. The only
remedy available to them is to seek
divorce under their personal law.
Recently, a PIL was filed in the Sup-
reme Court, once again challenging the
validity of Section 497 as being violative
of Articles 14, 15 and 21. The Court iss-
ued notice to the government in Dec-
ember 2017 and sought its stand.
The Court, perhaps recognising the
complexity in relationships and acknow-
ledging a paradigm shift in the morality
and ethos of a dynamic society, has deci-
ded to revisit the said provision and exa-
mine its validity in the perspective of
prevalent society. The fate of the provi-
sion remains to be seen.
In Yusuf Abdul Aziz vs State of
Maharashtra, the petitioner being char-
ged with the offence of adultery under
Section 497 challenged the said provi-
sion in the Bombay High Court on the
ground that it offended Articles 14 and
15 and hence was unconstitutional.
Article 14 provides for equality before
the law and equal protection of laws.
The question before the High Court was
whether Section 497 does not operate
equally upon all persons.
The High Court, after examining the
spirit of Article 14 as also the mischief
alleged in Section 497, was pleased to
answer the said question in the negative
in June 1951, on the ground that this
was a policy of law which created a par-
ticular kind of offence and restricted it
to a particular relationship and particu-
lar conduct and hence it would not be
proper for the Court to determine the
wisdom or otherwise of the legislation.
Blaming
it on Men
Whilethegovernmentpromisesto
repealobsoletelaws,itneedsto
revisitSection497inthelightof
evolvingsocialmores
N

Article 15 enjoins the State not to
discriminate on the grounds of caste,
religion, race, sex or place of birth. It
was thus argued that Section 497 dis-
criminated on the ground of gender.
W
hile determining this issue,
the High Court referred to a
passage in the introduction to
the IPC where the authors of the code
point out the reason behind this partic-
ular line of thought adopted in Section
497. The thought is contrary to the prin-
ciples of law known and understood by
the great law-giver, Manu, the principles
of law embodied in Mohammedan law
and even in many European systems of
law. The reasons cited by the authors are
a tribute to the enlightenment and
human outlook of those who were
responsible for framing the code.
The authors of the code were im-
pressed by the fact that when they were
enacting the code, the position of
women in this country was in a shock-
ing state. They point out that women
were married as children, married to
men who could have any number of
wives, and women had to share the
attention of the husband with several
rivals. They have also pointed out that
Indian society believed in and upheld
the system of seclusion of women, that
women were deliberately put down, that
there was a belief that women were not
equal to men in any walk of life, and
that every possible consideration weig-
hed with the authors in taking a liberal
enlightened view in favour of women in
this country. Therefore, they pointed
out that it would be weighing the scale
against women by making them punish-
able for committing adultery.
Women, according to them, were
more often than not mere passive tools
in the hands of men and, placed as they
were, it was impossible for them to re-
sist the blandishments that men might
hold against them.
It was with this background that Sec-
tion 497 was enacted in 1860. The
framers of the code perhaps overlooked
and thus failed to protect the wife whose
husband had strayed.
The High Court, despite noticing the
improvement in the position of women
in the country, upheld the constitution-
ality of the provision and held that the
question of changes in the said provision
in the context of altered conditions is a
matter on which two views are possible.
The Court considered it appropriate for
the legislature to deal with the issue.
T
he matter reached SC and a five-
judge Bench also upheld the con-
stitutionality of the provision in
March 1954 holding that only because
the provision prohibits punishment does
not tantamount to a licence to commit
the offence. The top court also dis-
missed the argument of violation of
Article 15, saying that in fact the said
Article provides for special provision of
women and hence it is not offended.
The journey of the challenge to Sec-
tion 497 continued and in 1985 once
again the Supreme Court refused to
hold the said provision unconstitutional
in Soumithri Vishnu vs Union of India,
by holding that the law does not confer
freedom upon husbands to be licentious
by gallivanting with unmarried women.
The Court held that the provision only
makes a specific kind of extra-marital
relationship an offence and an unfaith-
ful husband may perhaps invite civil
action of divorce, etc.
Thus, once again, the Supreme Court
held that the legislature is entitled to
deal with the evil where it is felt and
seen the most—a man seducing the wife
of another.
So, by virtue of the five-judge bench
judgment rendered in 1954, followed by
the three-judge bench judgment in the
matter of Soumithri Vishnu, “adultery”
remains in the law book till date as
“offence against a Man”.
While the government goes ahead
with its promise to repeal obsolete and
archaic laws, perhaps the time has
come for the legislature to revisit and
deliberate upon Section 497 and make
necessary changes to this antediluvian
provision.
—The writer is an advocate
in the Supreme Court
TheSupremeCourt,perhapsrecognising
thecomplexityinrelationshipsand
aparadigmshiftinthemoralityandethos
ofadynamicsociety,hasdecidedto
examinethevalidityofSection497.
Anthony Lawrence
Bhavana Gaur

States/ MP/ Prisoners’ Health
34 January 15, 2018
RAKASH Jatav, 56, was an
undertrial lodged in Jaura
sub-jail in Morena district
of Madhya Pradesh, along
with his three sons, on the
charge of murder. He had
been complaining of chest pain for
many days but the jail authorities had
no doctor to gauge the seriousness of his
ailment. As his condition deteriorated,
Jatav was first brought to a local health
centre and then to the district hospital
where he died on December 16.
His death would have gone unno-
ticed like other such cases if a newspa-
per had not reported the incident with
shocking details about the acute short-
age of doctors in Madhya Pradesh jails
and the resultant deaths of prisoners.
Last year, two convicts in Morena jail
died of cardiac arrest for want of timely
treatment, and a subsequent health
check-up conducted in the jail found 42
inmates suffering from tuberculosis.
In the last five years alone, 733 pris-
oners have died in various jails in
Madhya Pradesh, according to National
Crime Record Bureau figures. Most
were due to cardiac arrest, contagious
diseases like tuberculosis and the ab-
sence of regular medical check-ups of
ill prisoners.
ABYSMAL STATE
Shockingly, it was revealed after Jatav’s
death that out of 51 sanctioned posts for
doctors in jails, 46 were vacant. Six out
of 11 central and all 40 district jails were
without doctors. Only the central jails of
Bhopal, Gwalior, Jabalpur, Satna and
Indore had a doctor each.
Taking suo motu cognisance of the
newspaper report, the National Human
Rights Commission (NHRC) asked its
deputy inspector general (investigation)
to conduct an on-the-spot inquiry and
submit a report within six weeks. An
NHRC press release said: “The state
being custodian of the inmates, is liable
to take care of their health issues.
Deaths of the prisoners in such a large
number, due to lack of medical facilities,
is violation of Right to Life and Health
of the poor prisoners.” Jails manage with
the part-time services of doctors from
Primary Health Centres and district
hospitals. “As a result, prisoners, suffer-
ing from serious ailments, fail to get
timely treatment. Even if the jail admin-
istration calls a doctor, they have to pay
`500 as their fee, as a result only in very
serious cases doctors from outside are
called,” NHRC said.
FILL POSTS
The jails department is happy about the
on-the-spot investigation of jails as it
hopes the NHRC inquiry will yield posi-
tive results and the government will be
obliged to fill the vacant posts of doc-
tors. A senior jail officer told India Legal
that the department had been demand-
ing that the posts of doctors be filled for
P
AnNHRCreporthasfound
thatthestate’sjailsare
woefullyshortofdoctors
anddon’thavefundsto
appointthemonapart-time
basiseither
By Rakesh Dixit
in Bhopal
Doctors
Not on
Call
HEALTH NEGLECTED
(Above) Central Jail in Bhopal has only one
doctor; (facing page) inmates participating in
Yoga Day celebrations
Photos: Gagan Nayar

a long time but the government had
not heeded its demand.
“It is true that we should have doctors
in all 11 central and 40 district jails but
we have only five doctors. We have been
demanding filling of the posts and the
government is to take a decision on it,”
Additional Director General of Police
GR Meena said.
However, given the paucity of gov-
ernment medical officers in the state, it
is unlikely that the vacant posts of doc-
tors in jails will be filled anytime soon.
According to figures from the health
department, there are more than 3,300
sanctioned posts of medical officers. But
more than 1,200 are vacant. Likewise,
1,400 posts of specialists are vacant
against 3,000 sanctioned posts. And
with medical officers and specialists
retiring from the service every year,
these vacancies are increasing.
MP’s Health Minister Rustam Singh
has repeatedly said that the state gov-
ernment is trying hard to fill the vacan-
cies. But with the paucity of qualified
doctors, this is easier said than done. In
the last five years, it has not found as
many medical officers and specialists
as required.
This is despite the department regu-
larly recruiting personnel through the
MP Public Service Commission and
advertising the vacancies.
DAILY CHECK-UP
Early last year, the Madhya Pradesh
Human Rights Commission (MPHRC)
too had blamed jail authorities for poor
healthcare facilities for prisoners. It
made this observation after taking cog-
nisance of the death of a 70-year-old
prisoner, Ghasita, in June 2016. He was
brought to Bhopal for treatment of a
liver ailment but could not be saved.
In January 2016, MPHRC had rec-
ommended that the jail department do a
daily check-up of ill prisoners and a doc-
tor be deputed for the same. It said the
frequency of visits of a doctor to a jail
should be increased from the present 10
times a month. It also recommended
that the jail headquarters have a list of
prisoners suffering from serious physical
or mental disorders. It said that jail offi-
cials did not take the health of prisoners
seriously, resulting in a high prevalence
of physical and mental ailments and
leading to many deaths.
Madhya Pradesh, incidentally, has
the third highest number of jail inmates
suffering from mental illness, according
to Prison Statistics India—2015. There
are 453 people lodged in different jails
of MP with mental illnesses. Uttar
Pradesh tops the list with 781, while
Odisha has 554, according to the
National Crime Records Bureau. MP
also has the second highest prisoner
occupancy rate—140 prisoners in jails
against the authorised capacity of 100.
EMPTY PROMISE
In the wake of the prison statistics of
2015, Rustam Singh had promised in
September 2016 that 51 doctors and
nurses trained to deal with mental
health problems would be appointed in
all the 51 district hospitals soon. But
that has not happened so far.
A senior jail officer said on condition
of anonymity that it was not possible to
follow the MPHRC recommendations as
it entailed big expenditure and the
department was unable to call doctors
due to budgetary constraints. “A doctor
charges a minimum `500 for each jail
visit. We have 46 jails without doctors.
If doctors were to visit more than 10
times a month in each of these jails,
their fees would cost the department
lakhs every month,” said the officer.
The condition of MP’s jails mirrors
the pitiable condition of medical servic-
es all over the state, which has the third
highest number of doctors’ vacancies in
government hospitals. On July 25, 2016,
then Union Minister of State for Health
and Family Welfare Faggan Singh
Kulaste had stated in the Rajya Sabha
that Rajasthan had the highest number
of doctor vacancies of 4,124, followed by
West Bengal with 2,274 and MP
with 1,161. It is time the state woke up
and realised that prisoners are also
human beings.
Inthelastfiveyearsalone,733prisoners
diedinjailsinMadhyaPradeshfrom
cardiacarrest,contagiousdiseaseslike
tuberculosisandtheabsenceofregular
medicalcheck-ups.

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