India Legal 17 April 2017

1. Banks are under stress because of bad debts. Here’s why: Those responsible are not poor farmers but the super rich THESE POOR INDIANS InvitationPrice `50 NDIA EGALL STORIES THAT COUNT April 17, 2017 ` 100 www.indialegallive.com I Highways and Dryways: Supreme Court is Unmoved Babri Masjid Case: Old Guard Under Pressure VenugopalDhoot SajjanJindal GautamAdani AnilAmbani AnilAggarwal ShashiRuia GVKReddy

4. 4 April 17, 2017 F you’re a devoted netizen roaming the blo- gosphere and shuttling through the Twitter space, chances are that you have had several close encounters with Raju Parulekar. If per- chance your paths haven’t crossed, you can now meet him in the pages of his new book—In the Quest for Political Philosophy (Indus Source Books)—a collection of essays on the Indian condi- tion and why we repeatedly fail to come to grips with the things which are rotten in the state. Parulekar is not your run-of-the-mill newspa- per analyst in the style of a Bhabani Sengupta or Pratap Bhanu Mehta. He defies pigeonholing. He is a deliriously proud Maratha, yet detests chau- vinism, and is a hairshirt to dedicated Shiv Sainiks whose leadership (he is unsparing of even the late Bal Thackeray) he criticises as self-promoting and short-sighted and does little to engender faith in the political system. Parulekar is also an ardent nationalist but disdains jingoism. And he has no particular affection for either the socialistic preten- sions of Nehruvianism or the Hindutva exploita- tion of the Sanghis. So what does he think of Namo? In his book, he stands away from the baiters and the bhakts, and adopts an evidence-based formulation with which to judge Modi. He adumbrates several performance-related yardsticks. In his view, the biggest hurdles to India’s cultural, political, social and economic progress as a cohesive and modern society are the VIP culture, the inability of India to shake off the debilitating effects of British authoritarian- ism. As scholar Niraj Kumar notes in his foreword: “The power elite has closed the door to new entrants…in films, professions, politics, bureaucracy, judiciary, media…. Today in the name of securitization and sanitization, the state has penetrated the most private of spaces.” Modi, Parulekar argues, has many “firsts” going for him. The first non- Congress government elected with a complete majority. The first prime minister who was born after India gained independence. Perhaps the first Indian to grow from a chaiwallah to chief minister and prime minister. His appeal to Indian youth was a “yes we can” dream that would liber- ate India from the clutches of the Gandhi dynasty and the “lingering British colonization of the mind”. Notwithstanding stunning electoral successes, Modi’s government has really been no different from the governments which ran India since 1952, Parulekar says. He takes a direct aim at the functioning of the judicial system: “Because Modi was a common man who hailed from a common family, people expected him to understand their agony of higher judiciary and its language and the expenses involved. The people of India have expected revolutionary changes from the Modi-led government. But no giant stride has been taken in this regard yet. The government appears hesitant of its dos and don’ts as also his list of priorities. “There have been a few changes but they are superficial and patchy. That is why the laws—the Indian Penal Code, Code of Criminal Procedure, other administrative laws—and the Indian people have been sharing a rigidly established ‘master- slave’ relationship for years.” P arulekar says that because the entire government, judiciary, police, investigating authorities and allied bodies have been functioning as an extension of British colonies (with added corruption), Modi has to break the power circle without becoming sucked into it. Otherwise, issues like atrocities on Dalits, restric- tions on writers, censorship, religious name-call- ing, death penalty laws, corruption, nepotism, casteism, farmer suicides and tax terrorism against political enemies will continue to hog centre-stage and sideline the “Modi dream”. Can Modi deliver? Parulekar has not given up, but he points to some of Modi’s personality traits as obstacles: “His lack of interest in inclusive politics and expectations of loyalty without non-ana- lytical introspection” make it easier for the anti- Modi lobby to spread negativity about his leadership and create unrest. This is an important book from an original thinker—something the PM would be well-advised to read. And ponder. I A BOOK NAMO SHOULD READ Inderjit Badhwar Letter From The Editor editor@indialegallive.com

6. Contents Poor Little Rich Men India’s super rich are responsible for humongous bad debts and non-performing assets, causing distress in the banking system. India Legal lists the main players 14 LEAD VOLUME. X ISSUE. 22 APRIL17,2017 OWNED BY E. N. COMMUNICATIONS PVT. LTD. A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411 e-mail: editor@indialegalonline.com website: www.indialegalonline.com MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri, Mumbai-400058 RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Ranchi-834002. LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj, Lucknow-226001. PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak, Opposite Lalita Hotel, Patna-800023. ALLAHABAD: Leader Press, 9-A, Edmonston Road, Civil Lines, Allahabad-211 001. Editor Inderjit Badhwar Senior Managing Editor Dilip Bobb Deputy Managing Editor Shobha John Executive Editor Ajith Pillai Contributing Editor Ramesh Menon Associate Editors Meha Mathur, Sucheta Dasgupta Deputy Editor Prabir Biswas Staff Writer Usha Rani Das Senior Sub-Editor Shailaja Paramathma Art Director Anthony Lawrence Deputy Art Editor Amitava Sen Senior Visualizer Rajender Kumar Graphic Designer Ram Lagan Photographers Anil Shakya, Bhavana Gaur Photo Researcher/ Kh Manglembi Devi News Coordinator Production Pawan Kumar CFO Anand Raj Singh VP (HR & General Administration) Lokesh C Sharma Advertising Valerie Patton Mobile No: 9643106028, Landline No: 0120-612-7900 email: marketing@encommunication.org Circulation Manager RS Tiwari Mobile No: 8377009652, Landline No: 0120-612-7900 email: indialegal.enc@gmail.com PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd andprintedatSuperCassettesIndustiesLtd.,C-85-86&94,Sector4,Noida,Distt. GautamBudhNagar,UP-201301. Allrightsreserved.Reproductionortranslationinany languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof writersinthemagazinearenotnecessarilyendorsedby ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe returnofunsolicitedmaterialorformateriallostordamagedintransit. AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd. Managing Editor (Web) Parsa Venkateshwar Rao Jr Editor (Content & Planning) Sujit Bhar Senior Content Writer Punit Mishra (Web) Technical Executive Anubhav Tyagi 6April 17, 2017 Old Guard under Pressure The Babri Masjid case has taken an unexpected turn, with LK Advani, MM Joshi and others likely to face fresh charges. What are the consequences for the BJP? 18 LITIGATION Much Misused ID In the border districts of West Bengal, Aadhaar cards are being freely issued to illegal migrants with the connivance of politicians. This poses a serious security threat 20 STATES

7. Countrywide Crisis The top court has expanded the scope of an NGO’s petition on farmers’ suicides in Gujarat to cover the tragedy across India ECONOMY 32 REGULARS FollowusonFacebook.com/indialegalmedia andTwitter.com/indialegalmedia Ringside............................8 Delhi Durbar......................9 Courts.............................10 National Briefs .........12, 22 International Briefs..........43 Media Watch ..................49 Satire ..............................50 Cover Design ANTHONY LAWRENCE The constitution and the Mahatma Gandhi believed decentralisation was the key to true and inclusive democracy. Hence, he championed the panchayat system, say analysts 46 | INDIA LEGAL | April 17, 2017 7 Hard Test to Pass A petition in the Supreme Court has led Punjab to lay down criteria for its judicial officers and these are stiffer than those required for High Court judges COURTS BOOKEXTRACT 34 Fun Times Never Stop The ban on liquor shops will be a futile exercise as it will be sold illicitly and people will consume it behind the wheel 30 Whither Journalism? The newly launched Mangalam TV is in trouble over an alleged sting operation concerning a Kerala minister. The channel has since apologized 36 MEDIA Dry on the Highway Though the ban on watering holes affects revenue and jobs, accidents due to drunk driving also need to be curbed 26 SUPREMECOURT “Collegium Here to Stay” Senior advocate RS Suri supports an executive nomination in the judicial body, though it is likely to be only a tertiary role 24 INTERVIEW Unholy Muddle Most states have laws to tackle cow slaughter and they were all made before the BJP came to power in 2014. Very few of them address the issue directly 38 MYSPACE Terms of Separation Britain has formally begun the process of leaving the EU, but there is uncertainty over future trade deals with its European counterparts and the “exit bill” 44 GLOBALTRENDS African Challenge The condemnation by these nations of attacks on their nationals could affect the success of India’s outreach to this continent 40 DIPLOMACY

8. “ RINGSIDE Ye sahi hai ki jo baap ka nahi hua, wo kisi ka nahi ho sakta. (one who couldn’t respect his father can’t respect anyone else). While people voted for me as the chief minister in 2012, I chose to make Akhilesh the CM, but he humiliated me thereafter. . I have never been insulted so much ever in my life. —SP leader Mulayam Singh Yadav, speaking about his son Akhilesh at an event in Mainpuri I want to tell the Kashmiri youth, there are two paths in front of you which can determine your future—one is tourism, the other is terrorism." —Prime Minister Narendra Modi, inaugurating the country's longest road tunnel between Jammu and Kashmir DDCA was in grip of corruption. Students had come to me regarding corruption in the selection process. The BJP sued me. Why would I pay Jethmalani from my own pocket. People should say whether the government should pay or if Kejriwal should. —Delhi CM Arvind Kejriwal, on allegations that public money was used to foot Ram Jethmalani’s bill to fight Kejriwal’s defamation case, at a rally It’s absolutely right that this administration is concerned about the relationship between India and Pakistan and very much wants to see how we de-escalate any sort of conflict going forward. We don’t think, we should wait till something happens. —US ambassador to the United Nations Nikki Haley, affirming the possi- bility of the Trump administration mediating in tensions between India and Pakistan To single out and demonise Aadhaar when we have an across-the- board issue with mobile phones, voice recognition systems, CCTV cameras, Internet of things (IoT), I think that is a motivated campaign. I can categori- cally say that it’s the most secure system in India…. —Former chairman of UIDAI, Nandan Nilekani, in The Times of India If China is so worked up about the Dalai Lama, it should also understand India’s concerns on Masood Azhar and Pakistan. —Media person Vikram Chandra, on Twitter And it has arrived...The magical figure of 26 million followers !! Thank you Twitter for my intolerance. —Bollywood star Amitabh Bachchan, on Twitter I think there’s a lot of fake honesty going around. There are a lot of people going around and saying, 'You know I'm being hon- est' and actually, it's just for selling books, or movies and ratings. —Film star Kajol, probably taking a dig at Karan Johar, in DNA 8 April 17, 2017

9. There’s also some good news for bureaucrats. It’s extremely rare for an incoming chief minister from a rival party to declare his faith in a top bureaucrat appointed by his predecessor. That is precisely what the new CM of Uttar Pradesh, Yogi Adityanath, has done by his first official appointment—announcing Rigzin Samphel as his special secretary. Samphel is no ordi- nary bureaucrat. Originally from the Ladakh royal family, he was one of Akhilesh Yadav’s most trusted senior officials and his innovations, hard work and empathy for the poor earned him the title of “the Hardest Working Bureaucrat in the World’’ by the respected Economist magazine. Samphel is a commerce graduate and an MBA from Delhi University and his path-breaking development work in the districts where he has been posted has earned him widespread admiration and accolades. By appointing him special secretary, Adityanath is also sending out a message that he wants a responsive and pro-active bureaucracy. Delhi DurbarAn inside track on happenings in Lutyen’s Delhi Just how closely the PMO is keeping a watch on the Indian bureaucracy to ensure that corruption and mismanagement are kept at bay is now evident, and it is sending shockwaves through the system. In a rare move, an additional secretary in the Home Ministry, who was widely considered the most powerful official after the home secretary, was recently removed from his post and repatriated. He was asked to go on leave for two months while an investigation into allegations of corruption takes place. The bureaucrat is a 1985 batch IAS officer. Sources say that it was the prime minister himself who ordered the action after receiving reports on questionable decisions by the officer. The officer, from the Andhra Pradesh cadre, was in charge of postings of IPS officers as well as modernisation of state police organisations. The swiftness and severity of the action against a man highly regarded by his bosses and in line for promotion to Secretary, has shaken the entire bureaucracy. Earlier, another senior IAS officer posted in the Foreigners Wing—that looks at foreign funding received by NGOs—was suspended from the ministry. Alarm bells are ringing loudly. | INDIA LEGAL | April 17, 2017 9 Membership in Delhi’s Gymkhana Club has long been one of the most coveted among the city’s status-seek- ing classes. Now, it seems the Club, with its prime location around the corner from the PM’s resi- dence, is using that to its advantage. A senior advocate, Ajit Bhasme, had applied for membership in 1994. Last week, he received a letter from the Club secretary informing him that he needed to deposit `7.5 lakh with the Club to keep his membership active! Not just that, the letter also informed him that he could expect his membership to materi- alize in approximately 35 years! The lawyer has written back demanding to know how many senior bureaucrats and others have been given out-of-turn member- ships, something that happens to be Delhi’s worst-kept secret. No response from the Club, understandably. JUST REWARD Arun Jaitley is, no doubt, a busy minister, having to juggle his time between two key cabinet portfolios—finance and defence. But the mantriji is a very relaxed man these days after the finance bills have been formally passed and demonetisation blues have blown over. In fact, Jaitley often drops serious business to trade a few quips or light-hearted banter with friendly journalists. Recently, he regaled them with this flashback to the early 70s when he and two friends drove all the way to Haryana to watch Raj Kapoor’s Bollywood clas- sic, Bobby. The film’s screening was at that point stayed in Delhi because someone had raised objections to certain scenes and gone to court. But Jaitley and two friends—he did- n’t reveal their names but said one of them later became the CMD of Air India—decided they had to see the film. So, they crossed the Delhi border to watch the film! CLUB CRASS CROSSING BORDERS FOR BOBBY HOME ALARM

10. Acase argued in the Sup- reme Court for 11 years, involving the killing of a BJP worker in Kerala, was dis- posed of by the Supreme Court. Suresh Babu of the BJP was killed by a mob which attacked BJP workers in Thrissur district in 1993. The Court held five CPM activists, who were part of the mob, guilty of voluntarily causing grievous hurt and for unlawful assembly, and awarded them a jail term of seven years. The apex court ruled that even if the persons concerned were not directly involved in the murder they could not escape responsibility as they were part of the mob that had assembled unlawfully on that day and were looking for BJP workers at a particular junction in the district, only with the intention of attacking them. That was very much a part of the “object of the assembly”, the Court observed. The Court also took into account that the man who died and the accused belon- ged to rival political parties. The five men were earlier acquitted by the Kerala High Court on the ground that they had no intention of killing Suresh. Onus for mob attack The question whether former finance minister P Chidambaram had illegally favoured Maxis in acquiring 100 percent stake in Aircel came up before the Supreme Court. After getting an assurance from the CBI that it was seriously probing the role of Chidambaram, the Court fixed the next hearing for May 2. The CBI told the Court that it would be able to give a clear picture on the time- frame only by the first week of May. The centre, however, submitted the Enforcement Directorate’s investigation (on the money laundering aspect) report. BJP MP Subramanian Swamy had approached the Court for an investigation into Chidambaram’s role in the matter. He informed the Court that the CBI had inti- mated to him that the agency was exam- ining the matter. Swamy had earlier alleged in a PIL that the former FM did not adhere to the well-laid-out process of getting the FDI passed from the Cabinet Committee of Economic Affairs, even when the money involved was more than `600 crore. Swamy’s plea for a direction to the CBI to submit progress reports of the probe at regular intervals was not accepted by the Court. It asked the CBI to present a comprehensive probe report. Wait for CBI probe on Aircel-Maxis deal The Supreme Court did not agree with the verdict of the Punjab and Haryana High Court that the respective chairper- sons for the Commission for Protection of Child Rights (CPCR) in Punjab, Har- yana and the union territory of Chandi- garh must be former judges of the high court. The apex court took cognizance of the pleas of Punjab and Haryana that the decision amounted to judicial overreach. The argument of the states that as per Section 17 of the CPCR Act, the person selected as chairperson “should be well- known with spectacular credentials in the area of child welfare,” was also considered by the top court. The states pleaded that the High Court had no business to rule that the concerned post must be held by a former high court judge. In 2013 the High Court had observed that only a person with “legal expertise, judicial wisdom and experience” could exercise powers enshrined under Section 13 of the Act. Courts 10 April 17, 2017 Can ex-judges head CPCR?

11. It is upto a constitutional bench to examine whether a parliamentary report could become the basis for judicial action, the Supreme Court ruled while referring to a parliamentary report on flaws in clinical trials done for vaccines. A PIL had brought the findings of the report before the Court. The Court observed that conducting proceedings on the basis of the report would amount to encroaching upon the legislature’s domain and thus wanted a constitution bench to look into the matter. Even the counsel of one of the pharma companies linked to the trial pointed out that it was wrong to bring the contents of the report in front of the judiciary as Parliament’s actions were not subject to judicial scrutiny. Separationofpowers The apex court did not agree with the Karnataka High Court’s plea that keeping in abeyance proceedings against the late Tamil Nadu CM Jaya- lalithaa was an error in judgment. The SC had abated proceedings against her in February while holding VK Sasikala and others guilty in the disproportionate assets case, because she had passed away. But it allowed recovery of the `100 crore fine slapped on her. The High Court argued in a review petition the money could not be reco- vered from her if she is not declared a “convict” in the case. But the SC refused to relent. PleaonJayadismissed Gujarat’s director general of police (DGP) PP Pandey quit office on April 3 after the Supreme Court asked the state government to accept his offer to quit. The DGP had written to the state government, asking it to revoke its extension order (till April 30) and expressing his intention to “step down”. The letter was submitted by the state government before the Court. It argued that Pandey should be allowed to retire gracefully on April 30 and no further extension would be granted to him. But the Court threatened to issue an order if its directions were not followed. The state then gave an undertaking that the orders would be complied with. The apex court had, on March 31, asked the state government to submit its response by April 3 on a petition filed by former Mumbai police commissioner JF Ribeiro. The petition alleged that Pandey could not remain in the top post as he was chargesheeted by the CBI for murder in the Ishrat Jahan murder case. It questioned his reinstatement and promotion. The petitioner had also pleaded that since many police officers as wit- nesses in the case were under his com- mand, Pandey could influence them. Pandey’s services were extended for another three months by the centre. He was earlier given bail in 2015, reinstated and later given the extra responsibilities of a DGP in the state. Remove Gujarat DGP The Supreme Court took cognizance of a petition that wanted lawmakers barred from pur- suing any other job, but observed that the issue was outside its ambit and dismissed it. The petitioner, BJP spokesperson Ashwini Kumar Upadhyay, who is also an advocate, even wanted a uniform policy framed in this regard. He referred to judges and public servants who were not allowed to engage in other professions and argued that lawmakers must follow the rule. He even alluded to some MPs who could be seen in the Supreme Court premises on that day, when the parliament session was on. The Court saw the whole idea behind his plea but took a dig at him that he too was from a political party but was filing a plea in the Court! Can’t frame rules for lawmakers All issues related to WhatsApp’s privacy policy will be taken up by a five- judge constitution bench on April 18, the Supreme Court ruled. It asked concerned parties to present their arguments before it. WhatsApp has been acquired by Facebook. The centre and TRAI submitted their arguments before the Court. The centre felt there was a need to reg- ulate such services and it would come up with a policy. WhatsApp pleaded that its services were based on an agreement between itself and the user, and the privacy issue was redundant. The petitioner maintained that privacy was important. WhatsApp case before SC | INDIA LEGAL | April 17, 2017 11 — Compiled by Prabir Biswas

12. Briefs In its first cabinet meeting, the newly-elected Yogi Adityanath government in Uttar Pradesh written off crop loans of over 86 lakh small and marginal farmers in the state, amounting to over `36,000 crore. Loans of upto `1 lakh taken by those with land holdings of less than five acres till March 31, 2016 were waived. Also, 5,000 wheat purchasing centres would be set up wherein farmers can sell their produce directly by showing Aadhaar cards or land sowing papers. UP cabinet minister Siddharth Nath Singh said money would be raised through Kisan Rahat Bonds to keep the budget deficit within the limit of 3% of GDP. The principal bench of the National Green Tribunal, in the presence of Justice Jawad Rahim, Justice RS Rathore and expert Ranjan Chatterjee, ordered the Central Pollution Control Board (CPCB) to conduct an inspection of areas in Andhra Pradesh and Telangana for any illegal sand mining. It also sought clarity on the de-silting aspect as asserted by the states and if the con- tention. that such activity cannot be done manually and has to be done mechanically, is acceptable. The bench said that a detailed report should be filed in two weeks. After the Supreme Court banned the sale and registration of BS-III vehicles, an NGT bench headed by chairperson Swatanter Kumar directed public sector oil companies—Indian Oil Corporation Limited, Bharat Petroleum Corporation Ltd and Hindustan Petroleum— to submit a report within two weeks to phase out all BS-III oil tankers. The NGT directed the authorities not to renew registration of these vehicles in Delhi-NCR in the meanwhile. It had earlier directed oil companies to immediately stop plying Bharat Stage-I and Bharat Stage-II vehicles in the region for transporting petrol or petroleum products. Blow to sand mining Tejaswi in conflict of interest row RJD leader Lalu Prasad’s son, Tejaswi Pratap Yadav, is at the centre of a controversy. The Sanjay Gandhi Biological Park or Patna zoo, under his charge, allegedly awarded a `90 lakh contract for earth-filling work and construction of pathways to a company that ferried soil from a proposed mall site owned by MS Enterprise, in which the minister, his siblings and mother are shareholders. Opposition leader Sushil Kumar Modi called this a “conflict of interest”, raising the question of whether a minister can get into a profit engagement with his own department. He demanded an urgent investigation by the Nitish Kumar government into the case. Govt to deport “illegal” Rohingyas In a meeting chaired by union home secretary Rajiv Mehrishi, the centre has decided to assess Rohingyas who fled to India after being dis- owned by Buddhist-dominated Myanmar over the past 5-7 years, for deportation under the Foreigners Act. According to the Home Ministry’s estimate, there are around 40,000 Rohingyas in India, of whom around 5,700 are in Jammu, many of whom have reportedly procured themselves Aadhaar cards in an unauthorised fashion. NGT reaches out to oil cos Yogiwritesoff croploans 12 April 17, 2017 —Compiled by Sucheta Dasgupta and Usha Rani Das

14. Lead/ Non-performing Assets 14 April 17, 2017 HE government’s GDP figures may be impressive, the growth prognosis for the economy bright and the bullish stock market destined to touch record highs, but one negative that looms large over the India Shining story is its banking sector. And what is of particular concern here is the growing volume of bad loans and non-performing assets (NPAs) that are weighing down on the veritable backbone of the financial system. Various estimates are available to quantify the NPAs and these range from a humongous `5 lakh crore to `8 lakh crore. If we take official figures, as artic- ulated in a written reply by minister of state for finance, Santosh Gangwar in the Rajya Sabha last month, NPAs in commercial banks stood at `6.06 lakh crore (private banks accounted for only `70, 321 crore) as of December 31, 2016. This was an almost threefold increase from where it was (`2.67 lakh crore) at the end of 2015. Who is responsible for the mess? The India’s Poor Little Rich MenThoseresponsibleforbaddebtsandNPAsaremainlyIndia’stopbusinesshouses.It isthecountry’ssuperrichwhohavecausedmuchofthedistressinthebanking system.IndiaLegal liststhemainplayers By Ajith Pillai T UNI

15. obvious culprits are the banks which gave out the loans and the creditors who failed to pay back. But there is another dimension—it is now becoming increas- ingly clear that those responsible for bad debts and NPAs are in the main India’s top business houses and not the social welfare and farm sectors as is the popular perception. In short, it is the country’s super rich (see accompanying table of monies owed to banks by ten corporate companies) who have caused much of the distress in the banking system. It is not just that they owe banks money. It is also their blatant refusal to repay despite being flush with funds, that is upsetting. It is by now an open secret that every ruse in the book is employed to stall or evade payments and the banks are known to connive with big business in helping them default. So, what we see are poor companies owned by extremely rich people piling up debts. As Meera Sanyal, former CEO and chairman of the Royal Bank of Scotland in India, told APN news channel: “The NPA problem is serious. There are still many non-recognised NPAs despite the official figure touted. Former RBI gover- nor Raghuram Rajan had once said that India faces a peculiar situation where there are many sick industries but no corporate honcho is sick. In foreign countries, the responsibility for NPAs is fixed on the concerned bank official and the bank. But in our country, loans are sanctioned one after the other but there is no responsibility or accountability. Monitoring needs to be done on the loans given to corporates. The objectives need to be examined carefully.” How far is corporate India responsible for the NPA situation? The Public Accounts Committee (PAC) of parliament which has been looking into the bad loans of PSU banks has been very categorical that India Inc. accounts for the major share of bad debts. In fact, last month, PAC chairman KV Thomas | INDIA LEGAL | April 17, 2017 15 Thecountry’ssuperrichhave causedmuchofthedistressin thebankingsystemasthey refusetorepaydespitebeing flushwithfunds. PORTRAITS IN CONTRAST (Facing page) A hapless woman struggling in a queue outside RBI following demonetisation; billionaire Anil Agarwal at an art do UNI

16. revealed at a press briefing that “70 percent of the `6.8 lakh crore NPAs are those of corporate houses” and he said he hopes to list the names of the big defaulters in the PAC report in an effort “to shame them”. The RBI as well as the banks have been rather secretive in making public the names of corporate debtors. Even when the Supreme Court demanded the top defaulters list last year, it was hand- ed over in a sealed envelope with the assurance that it would be kept confi- dential. Former Chief Information Commissioner Shailesh Gandhi in a signed piece recalls how he drew a blank after he ordered the RBI to answer eight RTI queries pertaining to top defaulters, bank audits and minutes of RBI board meetings. The central bank refused to divulge any information on the ground that it would “adversely affect the public interest and compromise financial sector stability”. The RBI further elaborated that “dis- closure can erode public confidence not only in the inspected entity but in the banking sector as well. This could trig- ger a ripple effect on the deposits of not only one bank to which the information pertains but others as well due to contagion effect.” KV Thomas obviously finds the shielding and favouring of corporate defaulters rather peculiar. “In the case of farmers or small traders, banks act tough and go to their houses to recover money. They even get their names and photographs published in newspapers. But when it comes to corporate houses, they don’t even reveal their names,” he says. With such opaqueness in sharing information, whatever listing of top debt ridden companies that are currently available, including any reference to them in this article, is primarily sourced from the 2012 report of the Credit Suisse Group AG titled House of Debt which was updated in 2015. The report observed that the debt of the top ten debtors had risen seven times between 2007-2015 and constituted 12 percent of the loans in the banking system and 27 percent of corporate loans. B ig business and the scale of its exposure to bad debts had earlier come to light when the RBI col- lated data in 2012-2013 when KC Chakraborty was the deputy governor of the central bank. The exercise was primarily conducted to understand the nature of the debt crisis. It revealed that only 33 percent of the loans were in the government priority social sector, while 67 percent was in the non-priority business sector. As for NPAs, 80-85 percent involved loans to corporates. 16 April 17, 2017 Reliance ADAG: The Anil Ambani- led group has a debt of `1.25 lakh crore. Net assets: $29 billion Vedanta: Anil Agarwal’s metals and mining enterprise owes Indian banks `1.03 lakh crore. Total assets: $36.98 billion Essar: The company run by the Ruia brothers has debts totalling `1.01 lakh crore. Revenue: $27 billion Adani Group: It owes banks `96,031 crore. Net assets: $19 billion Jaypee Group: Has an outstanding of `75,163 crore. Revenue: $2.1 billion JSW Group: Sajjan Jindal is the chairman. It has debts amounting to `58,171 crore. Revenue: $11 billion GMR Group: A construction and turnkey projects company, it owes banks `47,976 crore. Revenue: $2 billion. Lanco Group: Runs solar and ther- mal plants. Owes banks `47,102 crore. Revenue: $1.4 billion Videocon: This group owes banks `45,405 crore. Revenue: $4.8 billion GVK Group: Founded by GVK Reddy, it is into infrastructure, energy and hospitality. It has `34,000 crore as debt. Revenue: $0.47 billion. Source: Debt figures are from Credit Suisse AG; Assets/revenue figures from market estimates TheTopTen Lead/ Non-performing Assets

17. Chakraborty earlier told India Legal: “When we talk about `6 lakh crore plus NPAs we are mostly referring to the non-priority sector or the corporate sector. But then, even this figure does not reveal the full picture. What about restr- uctured bad loans under various cate- gories? These are not even considered to be NPAs although they are exactly that though listed under various heads.” According to experts there are several reasons for the sharp rise in NPAs over the last few years. One factor which should be given weightage is the global economic slowdown which suddenly retarded growth projections in several sectors. But more than that is the manner in which PSU banks dispense loans under political pressure without proper checks on the viability of a project. According to a finance ministry official, the standard practice is to approach the bank with a feasibility report from a high-profile consultant and back it up with political pressure on the bank management. That apparently does the trick and the loan is sanctioned, with the bank making no more than cursory independent checks. The banks also favour business houses by “greening or repeated restructur- ing of debts.” So, in effect, a loan which falls into the NPA category is lifted out of it by recasting the time-frame for repayment. This literally amounts to renewing of a particular loan which will not be reflected as a bad debt in the bank’s balance sheet but would add to the financial stress in the long run. “Your loan can be an NPA last year but when you make some part payment, it will no longer be an NPA. The status keeps shifting. What companies actually do is to cleverly get away from the ambit of NPAs. Sometimes bankers resort to additional funding to borrowers so that they can repay,” said senior Supreme Court lawyer Virendra Ganda in a panel discussion on the India Legal show on APN TV. Meanwhile, the finance ministry and the RBI are working overtime to resolve the NPA problem. Several options are on the table, including the setting up of a “bad bank” where all the NPAs will be transferred and dealt with separately. But this is said to be a long-term plan. In the interim, the government is toying with the idea of a large-scale auction of debts to private asset recon- struction companies. B ut prior to any such move, Finance Minister Arun Jaitley has asked state-owned banks to conduct a “forensic audit” of the top 50 of its defaulters and to identify those who failed to repay loans because of genuine business failure. He asked them to separate these defaulters from those who may have diverted funds to other businesses or illegally siphoned them out of the country. The idea is to take penal action against wilful defaulters and to offer a one-time settlement for the genuine cases. This would involve banks writing off a part of the money owed to them or “taking a haircut.” According to a report last year by India Ratings, a reputed research agency that looks closely at the Indian business and market landscape, it would take much doing on the part of the government to bring Indian banking on an even keel. It pointed out that at least `4 lakh crore in debt held by “vulnerable” corporates may have to be written off since the recovery mechanism available under “Sustainable Structuring of Stressed Assets (SAA)” was not enough to keep the loans afloat. If any write off happens, then it will be taxpayers who will have to pay. Jaitley and the RBI governor Urijit Patel have their task cut out. The duo will have to come up with a unique out- of-the-box solution. Meanwhile, they could also advice banks that huge losses incurred over the years cannot be recov- ered by charging hapless depositors transaction fees. | INDIA LEGAL | April 17, 2017 17 Everyruseinthebookis employedtostallorevade paymentsandthebanksare knowntoconnivewithbig businesstohelpthemdefault. RICH PEOPLE, POOR COMPANIES (Clockwise from far left) Anil Ambani, Anil Agarwal, Gautam Adani, Venugopal Dhoot, Sajjan Jindal, GV Sanjay and GVK Reddy, and Ravi and Shashi Ruia, all lead companies which owe significant sums to Indian banks

18. Litigation/ Babri Masjid Case 18 April 17, 2017 N the Babri Masjid demolition case, Justice Rohinton Fali Nariman said the Supreme Court has to choose between evasion of law and evasion of justice. This was the crux of the issue that he was hearing along with Justice Pinaki Chandra Ghose. He was responding to senior counsel KK Venugopal, who said that the Supreme Court cannot transfer the trial case in the Rae Bareli special court to Lucknow because that would amount to evasion of law. Citing Section 406 of the CrPC, Venugopal said that a case can be transferred from one criminal court under the jurisdiction of a high court to another criminal court of higher grade under the jurisdiction of another high court. That is, a criminal case can be transferred from one state to another, but it should be transferred to a criminal court in the other state which is of a higher ranking than the earlier one. He said that this too can be done only at the request of either the attorney general or the advocate general of a state, or on a petition by the party involved in a case. He argued that the Supreme Court cannot transfer a case from one court to another within the same state as is being sought in the present instance. Justice Nariman replied that Article 139 of the constitution gives powers to the Supreme Court to do so. Venugopal was arguing the case for BJP leaders LK Advani, Murli Manohar Joshi, Kalyan Singh, Uma Bharati, Vinay Katiyar and others who were facing charges of delivering inflammatory speeches and inciting others on December 6, 1992, in Ayodhya, a little before the Babri Mosque was razed to the ground by a mob of kar sevaks. Justices Ghose and Nariman were hearing the appeal by the CBI which sought restoration of a criminal conspiracy charge against Advani under Section 120B of the Indian Penal Code. The Rae Bareli special court had dropped the charge, and the Allahabad High Court had upheld the lower court’s decision. The CBI wanted the High Court’s order to be reversed. The judges have indicated that they are in favour of reviving the criminal conspiracy charge against Advani and others. Right now, there is a charge against “unknown kar sevaks” of con- spiring to bring down the mosque. But the leaders were not included in the ini- tial First Information Report (FIR). The charge was not there even in the other FIR, where Advani and others were named and they were charged of instigating the mob through provocative speeches. On April 6, Additional Solicitor General (ASG) Neeraj Kishan Thecasetakesanunexpected turnastheBJP’soldguard comesunderpressure.What aretheconsequencesfor therulingparty? By Parsa Venkateshwar Rao Jr I TheSCjudgeswanttorevivethe criminalconspiracycharge againstAdvaniandothers.The chargeagainstthemwasnot includedintheinitialFIRs. An Open-ended Issue

19. Kaul, appearing for the CBI, urged in the apex court that the conspirators should not be allowed to go “scot free”. T he confusion has arisen because the investigation agencies had filed two FIRs, 197 of 1992 and 198 of 1992. The first was against “unknown kar sevaks”, about 1,00,000 of them, who had demolished the Mosque, and the second dealt with Advani and others who gave speeches before the demolition. The ASG had admitted that the criminal conspiracy charge was not incorporated in the first two FIRs, and was later added in the second one. It was the Rae Bareli court which had dropped the conspiracy charge under Section 120B of the IPC against Advani and others. The other charges of giving speeches instigating the crowd remained. The Court had allowed senior lawyer Kapil Sibal, appearing for Haji Mahmoud Ahmad whose Special Leave Petition (SLP) was admitted by the Supreme Court, to explain the points of law. But Venugopal objected to Sibal’s intervention, saying that he was a Congress MP. He argued that the case should be heard in Lucknow as there was no need for two cases to be heard on the same issue. He also said that the trial has lasted 25 years and that it was a scandal in itself. The Court had indicated that it would give directions for a time-bound trial process, which should be heard on a daily basis and completed in two years. The two main issues that confronted the Supreme Court in this case are: Two trials going on, one at Lucknow, and the other at Rae Bareli. The dropping of criminal conspiracy charges under Section 120B of the IPC against Advani and other BJP leaders. The Court, which has reserved its order for April 11, will be dealing with these two questions. The judges have clearly indicated that there should be a joint trial at Lucknow, and that the criminal conspiracy charge should be restored. It has to be seen whether the wit- nesses examined and the evidence presented so far at the Rae Bareli special court would hold good. It also needs to be seen whether the joint trial at Lucknow takes off from the point that the case had reached in the Rae Bareli court. S econdly, restoring the criminal conspiracy charge against Advani and others, which, if proved, would result in rigorous imprisonment, is not the same as reaching a conviction verdict. It is possible that the special court in Lucknow could throw out the charge of criminal conspiracy after evidence is presented and the arguments are done. Even if the trial court were to convict Advani and others on the charge of criminal conspiracy, the accused are certain to appeal to the Allahabad High Court and then, the Supreme Court. And the appellate courts will have to uphold the lower court’s verdict. It remains an open-ended issue. What makes this case newsworthy is the fact that senior leaders of the BJP— Advani and Joshi—are in the dock, and this could be a political embarrassment to the party which leads the coalition government at the centre and which is in power in Uttar Pradesh. BJP leaders could turn the adverse situation to their advantage and argue that the party does not misuse its position in power, and that it does not tamp- er with the legal processes as do their political rivals. | INDIA LEGAL | April 17, 2017 19 STICKY WICKET?: (Facing page) Prime Minister Narendra Modi with his erstwhile mentor LK Advani; (above) Babri Masjid; (left) Senior BJP leader and former president of the party Murli Manohar Joshi and former Madhya Pradesh chief minister Uma Bharati

20. States/ West Bengal/ Illegal Migrants 20 April 17, 2017 HE Unique Identification Authority of India (UIDAI) issues Aadhaar cards which have been effective in ensuring that subsidies are transferred to the targeted people without any leak- ages. But the card, seven years after it came into existence, has also been put to much misuse as is the case in the sensi- tive border districts of West Bengal where it is being issued to all and sundry. This impinges on national security since persons who are not Indians can indirectly claim citizenship because they possess a UID number. Technically speaking, possession of an Aadhaar card does not in itself grant any rights to domicile in India. But my making it virtually essential for almost every action of a citizen, the government may have made it a convenient instrument to claim Indian nationality. Once a person possesses an Aadhaar card, he or she can then use this primary identification document to get a passport, a ration card, a bank account, a PAN card etc. He or she can then go on to claim full citizenship and benefits that accrue with it and will come under the Indian security umbrella and have access to redressal under India’s legal system. THE BORDER SITUATION That is where the situation in Bengal assumes importance. People in the north-eastern districts of West Bengal live under an administration that by commission or omission allow illegal migration from Bangladesh—the earlier estimate of 650 persons crossing the border per day has not quite reduced. And political parties in the state are quick to provide new entrants with the documents required to legitimise their citizenship provided they promise to vote for them. It isn’t that providing assistance to illegal immigrants is only happening in the Mamata Banerjee-led Trinamool Congress regime. It was also rampant in the 34-years that the Left Front government was in power. It is just that the Aadhaar card and the manner in which it is being issued without any verification has added a new dimension to the migrant problem. A card which provides official identification can be exploited by those claiming they are Indian citizens. The Supreme Court last month said it would have to constitute a seven- judge constitution bench to determine whether the government can make Aadhaar cards mandatory to claim benefits of welfare schemes and whether it can be extended to cover areas like the opening of bank accounts and filing tax returns. The issue has been hanging fire in India’s apex court for a while. It was Much MisusedIDIntheborderdistrictsofthisstate,Aadhaar cardsarebeingfreelyissuedwiththeconnivance ofpoliticianstoBangladeshimigrants.This posesaserioussecuritythreat By Sujit Bhar T Thegovernmentmayhave involuntarilymadetheAadhaar cardaconvenientinstrumentto illegallyclaimIndiannationality.

21. brought before the Chief Justice of India (CJI) JS Khehar for urgent hearing but he said that the matter will “take time.” No date has been set for the hearing. MODUS OPERANDI Here is the modus operandi followed by political parties in West Bengal to issue Aadhaar cards to illegal migrants: According to the Citizens’ Charter for the UIDAI, the stakeholders are defined. Going by it, resident “means an individual who has resided in India for a period or periods amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of application for enrolment.” However, this definition, in word and spirit, is being taken to extreme lengths to prove that the immigrants have been around for as many days as defined. People in these districts are not even expected to possess passports (though many of them actually hold Bangladeshi passports, which are quickly destroyed). So other supporting documents, including letters of recommendation from local leaders are used to establish identity. According to a senior police official, it is difficult to ignore recommendations from MLAs and politicians and dis- counting a claim is tedious. “Since the language of the migrant is the same as the locals and physical features are similar it is difficult to make out the dif- ference by mere inspection of a person. Investigating the authenticity of the suspiciously new birth certificates they carry is possible but that is a time con- suming and expensive process,” he says adding “One option is to investigate his/her whereabouts in his/her current locality, ask neighbours. However, with skeletal infrastructure and little funding it becomes a near impossible task.” This is the situation that prevails in the districts of Malda, Murshidabad and parts of South and North 24 Parganas where Aadhaar cards are being freely issued. It is not just because of the subsidies and the forged bank accounts that there is need to worry. It is because these accounts, mostly Jan Dhan, are becoming primary vehicles for funding sleeper cells of terrorist groups. The money that used to come in as cash till recently, have quietly moved into these accounts post-demonetisation. At the end of the day, the basic point is this. The UID programme has been turned into a tool of deceit by politicians and terror groups alike in these border districts of West Bengal. It is time the authorities wake up. | INDIA LEGAL | April 17, 2017 21 S ome salient points in the The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 Sec 2. (c) “’authentication’ means the process by which the Aadhaar number along with demographic information or biometric information of an individual is submitted to the Central Identities Data Repository for its verification and such Repository verifies the cor- rectness, or the lack thereof, on the basis of information available with it; (d) “authentication record” means the record of the time of authentication and identity of the request- ing entity and the response provided by the Authority thereto; (g) “biometric information” means photograph, finger print, Iris scan, or such other biological attributes of an individual as may be specified by regulations; (j) “core biometric information” means finger print, Iris scan, or such other biological attribute of an individual as may be specified by regulations; (k) “demographic information” includes information relating to the name, date of birth, address and other relevant information of an individual, as may be specified by regulations for the purpose of issuing an Aadhaar number, but shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history.” AadhaarAuthentication TheSChassaiditwouldhaveto constituteaseven-judgebench todetermineifAadhaarcards canbemademandatory. STAMP OF PRIVILEGES? People waiting to complete formalities for getting an Aadhaar card UNI

22. Briefs The third gender in India can now use community and public toilets meant for both men and women. A cir- cular issued by the sanitation ministry said: “In many communities, the third gender may often be dissociated from the mainstream. They should be allowed to use the facility of their choice (men or women) in community or public toilets.” In a related move, the Madras High Court has asked the TN government to build toilets for transgenders. Meanwhile, North Carolina, US, passed a law to repeal its controversial bath- room bill, which required transgenders to use toilets corresponding to the sex on their birth certificate. Govt redresses third gender’s toilet woes Rejecting any third party mediation by the US, India has stated that outstanding issues with Pakistan should be sorted out bilaterally. This came after the US ambassador to the United Nations, Nikki Haley, suggested that the US would like to “find its place” in efforts to de-escalate tensions between the two countries. Later, however, a US state department spokesperson said that India and Pakistan should resolve their differences through “direct dialogue”. The ministry of external affairs said: “The government’s position for bilateral redressal of all India-Pakistan issues ...hasn’t changed.” India opposes third party mediation in Pak ties An advocate on record who appeared before the apex court to mention a matter alleged that it had been purposely deleted by the registry. This made the CJI lose his cool. He first warned the lawyer asking him not to make baseless allegations. The bench, comprising Justice JS Khehar, Justice DY Chandrachud and Justice Sanjay Kishan Kaul, said: “We will punish you and send you to jail straight from here. You should be ashamed of yourself for making such derogatory remarks.” It then issued a contempt notice to the lawyer and fixed the matter for hearing on April 10. The lawyer later came in with an apology affidavit accompanied by the SCBA president, Rupinder Singh Suri. The court declined to accept it. Days after it was denied a common election symbol for the upcoming civic polls in Delhi, Yogendra Yadav’s Swaraj India asked candidates to use their photographs as the poll symbol while campaigning. It is for the first time a candidate’s photograph will be there on the EVMs. “We have asked candidates to select one photograph and use it on all campaign-related materials so that people remember it. Irrespective of whatever symbol they get, people will remember the candidate's face,” said a spokesperson of Swaraj India. The party, formed by former AAP leaders Yogendra Yadav and Prashant Bhushan, is contesting the Delhi civic polls. The Union Cabinet has approved a proposal for setting up an independent regulatory agency for railways which will recommend revision of tariffs. The move is seen as another step in reforming the state-run trans- porter and in making the process of revision of both passenger and freight fares transparent. The regulator will ensure fair play and a level-playing field for private or foreign players. Private investment in the railways has been low because of uncertainties and frequent policy changes. Freight rates are likely to come down as the cost is likely to be balanced against higher passenger fares, officials said. In a first, photos on EVMs Independent regulator to fix railway fares —Compiled by Sucheta Dasgupta and Usha Rani Das CJI loses his cool 22 April 17, 2017

24. Interview/ SC Bar Association President/ Rupinder Singh Suri Senior advocate RUPINDER SINGH SURI was elected as the Supreme Court Bar Association president in December 2016. This alumnus of St Stephen’s College, Delhi, has been in the legal profession for four decades. He was counsel for Punjab in the Supreme Court during the years of Sikh militancy, was president of Advocates-on-Record Association and secretary-general, INSOL India, an association of members of the legal fraternity, chartered accountants, etc. He is an active member of the International Bar Association and was honorary secretary and later, vice-president of the SC Bar Association. In an interview to NAVANK SHEKHAR MISHRA, he says he supports an Executive nomination in the Collegium, though it is likely to be only a tertiary role, not a primary one. Excerpts: 24 April 17, 2017 “The Collegium is Here to Stay” Bhavana Gaur

25. don’t think there should be so much record-keeping. Instead, there should be self-discipline in every Collegium member. They should also look into the trend of a judge’s son being given priority in appointments. “Uncle Practice” should be eliminated in totality. Was Justice Chelameswar right in airing his views in public? I don’t know what will be the result of bringing this issue out in the public domain. Judiciary, as a whole, has lost face. And we can’t tolerate that. How can the present Collegium system be reformed? Don’t debar the Executive altogether. Judges, by their very work ethic, don’t meet too many people. So there is a like- lihood of them not getting the correct feedback about certain persons. Executive nomination should be there. MC Mehta had filed a petition in the National Green Tribunal regarding the Ganga Action Plan. What action plan should there be for its cleaning and proper utilisation of funds? The cleaning of the Ganga came into focus after Prime Minister Narendra Modi came to power. It has been taken up on a priority basis and there was a cabinet decision to make a separate authority to supervise this. A budget has been allotted. But what is polluting the Ganga? It is domestic sewage and industrial waste. It is people defecating on its banks. To control this, there should be infrastructure such as sewage and effluent treatment plants, public toilets, etc. All this will take time. It’s not a press-button situation wherein an act is passed, a budget is sanctioned and then you start asking questions in court about what is happening. I represented the Delhi Jal Board from 1990 onwards. A lot of money has been spent and a number of sewage treatment plants have been set up but in spite of the great job done, the net result is that the Yamuna does not have oxy- gen. There is no living organism. We can take lessons from this experience because the Yamuna is also a tributary of the Ganga. To expect a change in three months or one year is not possible. It will take time for the Ganga to get back its pristine glory. This experience would also help other rivers, especially the Brahmaputra, which caters to the North-East. Clean water is part of Article 21 of the constitution. If you have a right to life, you are entitled to clean water and proper water management What is your view on live-in relationships vis-à-vis the legal sanctity given by the Supreme Court? Live-in relationships have not been given legal sanctity by the Supreme Court. That’s wrong reporting in the media. What the Supreme Court has said is that no child would be illegiti- mate and that all children, irrespective of whether they are born in a live-in relationship or not, can get the father’s name and have all the rights. But though the wife (female partner) will have the right to maintenance, she will not get inheritance rights. I don’t think this is the right time to give legal sanctity to live-in relationships because it will have a legal impact on conventional cus- toms and laws of marriage. If sanctity is given to live-in relationships, they will be on the same level as marriages and it will lead to more divorces and unhar- monious homes. The Collegium system has been a subject of debate. How do you perceive this system? Till 1990, the Executive played an important role in the selection of judges. After that, thanks to the First Judges Case and the Second Judges Case, the Collegium came into full force. Only judges could select future judges. According to the constitution, the independence of judiciary is a must. And one important aspect of this is that they must have the right to select judges. From 1990, the system worked very well. But due to some questionable appointments, a debate started whether the Collegium was the best authority to select judges. One point of view was that the Executive should also have a say in this selection. It’s in this context that a new act and amendment (NJAC Act and the 99th Constitutional Amendment) came into being, but a constitution bench held that this act and amendment were ultra vires. It said it would not compromise with the independence of the judiciary and that means that the Collegium system will continue. However, the bench told the Executive to prepare a Memorandum of Procedure (MoP). An MoP has been prepared but it has again raised a number of questions as now every judge can nominate and recommend. So the final shape of the Collegium has not been firmed up. That said, the Collegium is here to stay. The Executive will only have a tertiary role, not a primary one. Is there a lack of accountability and transparency in the present Collegium system? There are two views on this. Justice Jasti Chelameswar has said there is lack of transparency. If the objective is to bring in complete transparency, then you should keep the minutes of various meetings. It can be quite harmful to the person who has not been selected. I don’t think our judicial institutions should be subject to RTIs and public debates. For the dignity of the office, I “Alotofmoneyhasbeen spentontheYamunaanda numberofsewageplants havebeensetupbut,thenet resultisthattheYamuna doesnothaveoxygen....To expectachangeinthree monthsisnotpossible.” | INDIA LEGAL | April 17, 2017 25

26. Supreme Court/ Liquor Ban N December 15 last year, the Supreme Court aimed to bring down the number of road accidents by deny- ing the drivers easy access to liquor shops loca- ted on national and state highways. A bench of then Chief Justice of India TS Thakur and Justices DY Chandra- chud and L Nageswara Rao expressed serious concern over the data which showed that drunken driving was a con- tributory factor to the rising number of road accidents. They imposed a ban on the grant of fresh licences to liquor shops within 500 m of highways and directed closure of those already granted licences within that distance from April 1. SOME EXEMPTIONS The deadline forced many state governments, which apprehended loss of excise revenue due to this move, to approach the Supreme Court to seek modification of its ban. On March 31, another bench of the Supreme Court, presided over by Chief Justice JS Khehar, and comprising Justices Chandrachud and Rao, reiterat- On the RocksThelossoflivelihoodandrevenuetostatesduetothebanonhighwayliquorvendsishuge. Butwithdatashowingthatdrunkennessleadstomoreaccidents,thiscocktailisnotheady By Venkatasubramanian O RISKY ADDICTION Highway accidents are rampant and drunken driving is a major cause of it 26 April 17, 2017 UNI

27. T he ban on sale of liquor with 500m of a highway could render a million people jobless in India and lead to a loss of revenue for states to the tune of over `2,00,000 crore. Maharashtra could lose `7,000 crore, Puducherry, `60 crore and Haryana, `100 crore. There are some confusing questions that remain: What are highways and can they be denotified? Is the Ring Road inside Delhi a highway or are only certain parts of it under the highway, namely NH-48 and NH-44? In Mumbai, is the Western Express Highway a highway or an express- way? In Chennai, is the 12-km-long Anna Salai, formerly Mount Road, a highway? In Goa, National Highway 17 cuts through Porvorim, a busy suburb. Will the restaurants, pubs and hotels be affected? Countrywide Confusion For a nation on the cusp of economic development, India can well avoid the tag of being the accident capital of the world, the Supreme Court reasoned in the judgment. The bench added: “Our highways are expanding, as are the expressways. They provide seamless connectivity and unhe- ralded opportunities for the growth of trade and industry and for the move- ment of goods, persons and capital. They are the backbone of the freedom of trade and commerce guaranteed by Article 301 of the Constitution. Our highways are dotted with sign boards warning of the dangers of combining speed and alcohol. Together, they constitute a heady cocktail.” ZERO TOLERANCE The punishment that Section 185 of the MV Act imposes for the offence of driving under the influence of a drug and leading to incapacity of exercising ed the ban, albeit with some minor relief to address some legitimate concerns. Thus, Meghalaya and Sikkim were exempted from the 500 m distance rule on the ground that they have forest and hilly terrain. The Court reduced the distance requirement from 500 m to 220 m in towns with a population of 20,000 or less. Most of Himachal Pradesh, it reasoned, would benefit from this relaxation. It also extended the deadline for compliance with the order from April 1 to September 30 for existing licence holders whose tenure was yet to expire. “The law can only imperfectly allevi- ate the consequences of road accidents. In terms of personal suffering caused to individuals and families as well as in terms of deprivation caused to society of its productive social capital, road accidents impose unacceptable costs,” the Supreme Court reasoned. The Court justified its intervention by talking about the constitutional right to lead a life of dignity and self-worth. The judgment reveals that in 2014, 7,307 accident cases involving driving under the influence of drugs/ alcohol, resulting in 7,398 injuries and 2,591 deaths on highways, were registered. The judgment claims that with regard to the figures of death or injury due to drunken driving, there is a tendency to underestimate or under-report in order not to impede the right to victims and/ or their legal heirs to receive compensation. The actual figures, it would, there- fore appear, are much more than what has been disclosed. ROAD ACCIDENTS The National Road Safety Council (NRSC), an apex body for road safety, established under Section 215 of the Motor Vehicles Act, 1988, had recom- mended way back in 2004 that licences for liquor shops should not be given along national highways. Since 2007, the Union Ministry of Road Transport and Highways (MoRTH) has consistently advised all state governments to remove liquor shops and not to issue fresh licences to liquor vends along national highways. In 2011, the MoRTH acknow- ledged that drunken driving was the leading cause of road accidents, with as many as 27,152 of them being caused under the influence of alcohol. The reason why MoRTH confined its advisories to national highways is because state highways are under the jurisdiction of state governments. The Supreme Court, however, refused to exempt state highways from the purview of its ban, as such an exemption would defeat its very purpose, as it would be discriminatory. | INDIA LEGAL | April 17, 2017 27 ECONOMIC COST The closure of liquor shops along highways is being opposed by states because of loss of revenue Facebook

28. proper control over the vehicle is imprisonment for a term which may extend to six months, or a fine which may extend to `2,000 or with both. A repeat offence, committed within three years of commission of the first offence, would result in two years imprisonment or a fine of `3,000 or with both. Section 185 is indicative of a parliamentary intent to follow a zero-tolerance policy towards driving under the influence of alcohol, the Supreme Court bench observed in the judgment. The statutory fine for drunk driving has been proposed to be increased by five times from `2,000 to `10,000. If the victim is killed, the proposed amendment to the Motor Vehicles Act seeks to make it a non-bailable offence pun- ishable by up to 10 years imprisonment. But critics ask whether harsher laws alone could be successful in ensuring driving without drinking. Surely, a driv- er can acquire liquor before the com- mencement of a journey or during it at a place other than a national or state highway. Still, the Court assumed that the central government’s advisory, based on the report of an expert body should be binding, especially on policies dealing with safety. Loss of excise revenue to states due to the ban is one big reason why the rule has been criticised. Many states have already begun to denotify highways to evade the rigour of the law. Although the Supreme Court is likely to find this a colourable exercise of executive powers, states appear to be left with no option as they seem to have exhausted their legal remedies. The Court also refused to relax the prohibition for bars and restaurants if the sale of liquor is not their only business. Such a relaxation, it reasoned, would defeat its very objective, and would also be against the rule of law. FIRM SC This was inconsistent with the opinion of Attorney General Mukul Rohatgi, who advised the Kerala government that the Supreme Court’s ban on liquor shops could not apply to bars and restaurants as the sale of liquor is not their only business. The Supreme Court also dismissed the concerns of many senior advocates like KK Venugopal, Rajeev Dhavan and CA Sundaram that the Court’s ban on liquor shops on highways amounted to judicial legislation. The Supreme Court’s intervention is justified on the ground that the centre has pleaded helplessness in enforcing its advisories against grant of licences to liquor shops on highways, although there is expert opinion that its prohibition could help to bring down the accident rates. With many states being aggrieved that the ban has led to a drastic fall in excise revenue, the centre is apparently toying with the idea of making a Presi- dential reference under Article 143 of the constitution to seek the Supreme Court’s opinion on the issue. One of the questions which the government would like the Supreme Court to answer in such a reference would be whether its ban on liquor shops on highways amounted to judicial legislation, which would be inconsistent with the doctrine of separation of powers, a basic feature of the constitution. 28 April 17, 2017 REASONS Overspeeding: 43.7% Overtaking: 31.4% Bad weather: 3.7% Mechanical defects: 1.7% Drunk driving: 1.5% MORTALITY RATES Overspeeding: 41% Overtaking: 32.2% Bad weather: 4.2% Mechanical defects: 3.1% Drunk driving: 2.1% Roadaccidents: Source: National Crime Records Bureau Stats for 2015 Delhi: 100 restaurants, liquor vendors and bars affected Noida: 42 Haryana: 194 bars; Gurugram: 106 bars Maharashtra: 1,000 hotels Kerala; 1,956 bars and toddy shops Tamil Nadu: 250; Chennai: 35 Mahe: 32 shops Rajasthan: 2,800 shops Chandigarh: 90 bars DryState Supreme Court/ Liquor Ban OnMarch31,aSupremeCourtbench, presidedoverbyChiefJustice JSKheharreiteratedtheban,albeit withsomeminorrelieftoaddress legitimateconcerns. TheSCstandwasatvariancewith AttorneyGeneralMukulRohatgi’s,who advisedtheKeralagovernmentthatthe apexcourtbanonliquorshopscould notapplytobarsandrestaurants.

29. NO HOLDS BARRED InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT March6, 2017 ` 100 www.indialegallive.com NITHEREAL STORYBEHIND PUL’SDIARYOur investigation into the credibility of the “suicide note” Ex-Arunachal Governor JP Rajkhowa “An Independent high level probe is a must” Dangwimsai Pul “This note was dictated much ahead of my husband’s death after good amount of planning” Interview of the Week: KTS Tulsi CBI Mess: Directors in the soup A EGALEE SSSTSTTTTTTOORIES THASTSTTTOOOO T COUNT ND RYto he Exclusive ors Interviews: Why lawyer Dave withdrew the petition Judicial validity of notes Analysis =PT)0VT)BTg) 0SSaTbb) 2Xch)BcPcT)?X]) ?W^]TATb)UUXRT)TPX[) 4]R[^bTS332WT`dT=^)3PcTS)3aPf])Uâ`) 2PaS=^)BXV]PcdaT) 5â^dcbcPcX^]RWT`dT_[TPbTPSS`$ 332WT`dTc^QTSaPf]X]UPe^daÛ4=2^d]XRPcX^]b?ec;cS C^QTbT]cc^)4=2^d]XRPcX^]b?ec;cS0(BTRcâ%'6PdcP1dSSW=PVPa=830D?! ( CTabR^]SXcX^]bP__[h?[TPbT_aêXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^] SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS For advertising subscription queries editor@indialegalonline.com HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;PVPiX]TUâcWTÛUTaX]SXRPcTSQT[^f Don’t miss a single issue of this independent, scintillating new weekly magazine and get special discounts for yourself and your friends CXRZ^]T CTaHTPab =^Û8bbdTb 2êTa?aXRT` H^d_Ph` H^dbPeT` BPeX]V HTPa $!8bbdTb $! !% !% $ !HTPab #8bbdTb # # % %!# % STSTSTTTTOOOOOORORRRIES THASTOSSSTTTTOOOOOOORRSTOOOORRRSTOOOOOOORR T COUNTSSSTSTSTTTTOOOOOORIES THASTTTOOOOOOOR T COUNT avv tyy InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT March13, 2017 ` 100 www.indialegallive.com NI CAMPUS CRACKDOWN Kerala’s Sex Offenders Registry Interview of the Week: Subramanian Swamy Dissent the constitution Terror trolls Free speech fight STORIES THAT COUNTSTORIES THAT COUNT NNNN InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT March20, 2017 ` 100 www.indialegallive.com NI Justice Karnan: Still Defiant Affordable Justice Lifeline Supreme Court’s Babri Bombshell The battle between the two celebrity lawyers in the Delhi High Court is entangled in their personal enmity and could backfire on Arvind Kejriwal StarWarsArunJaitley RamJethmalani s y d firr STORIES THAT COUNTSTORIES THAT COUNT Now in a dominant political position, will the prime minister move on issues like Article 370, Uniform Civil Code and the Ram Temple? Kalyani Shankar looks ahead N i d i t liti l positio ill the p BJPSweep,WhatNow? InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT March27, 2017 ` 100 www.indialegallive.com NI MoP: Judiciary and Executive End the Stalemate Book Extract: Legal Complexities in Marriage and Relationships imm Coo i STORIES THAT COUNTSTORIES THAT COUNT Chief Justice Jagdish Singh Khehar has tossed the Ram Mandir-Babri ball back into the laps of community leaders to try again for a non-legal solution even as tensions mount Will Mediation Work? InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT April 03, 2017 ` 100 www.indialegallive.com NI Telecom Wars: Survival of the Biggest Donald Trump: Looming Constitutional Crisis too laa o nt o STORIES THAT COUNTSTORIES THAT COUNT Sacked official arrested for sex crime charge Tokyo junket for office bearer’s kids Banking scam worth `100 crore The Racket in Badminton InvitationPrice `50 NDIA EGALEEL STORIES THAT COUNT April 10, 2017 ` 100 www.indialegallive.com NI No-fly List: Is it legally tenable? Lalit Modi: Embarrassment for India

30. One for the Road E will soon be a nation on the sly rather than the fly. Carry on like this and it is a given. Slyly imbibing alcohol in states that are dry. Slyly finding con- nections to the bootlegger. Slyly concealing our booze stock so that we cannot be reported. At the outset, there is nothing magical about 501 metres. Also, as the crow flies, it is a lot more than half a kilome- ter and captures a lot more of the restaurants and hotels than one would imagine. On a motorable twist and turn premise, perhaps half the outlets would have been “saved”. But as tourist-oriented places like Goa literally wring their hands in dry misery, the most important aspect is the non-effectiveness of the ban. All it does is create a temporary inconvenience. And one that will be overcome in weeks if not days. Already, bootleggers must be ecstatic as even limited prohibition boosts their bottom lines and it will not take much to establish a supply line to truckers and other drivers of sundry vehicles. Once the delivery boys are in situ, it will take them under four minutes to fill an order and if they have cycles, even less. So, as the mafia flexes muscle, the supply end should be no problem. Organised crime, often in cahoots with the police, will take over. It always does and it is naïve in the extreme to think otherwise. We do not live in Utopia, so to believe that Themovetoprohibitthesaleofbooze nearhighwaysisanineffectiveoneasit willbesoldillicitlyandpeoplewill drinkbehindthewheel W 30 April 17, 2017 by some miracle there will be a by-the- book upstanding nationwide and an agreement of probity and honesty is almost laughable. The second aspect is the danger of prices going up because of the extra effort involved in the reworked infrastructure, thereby forcing truckers to change their drinking habits and buying cheaper stuff. Enter the various forms of rotgut and guess who gets a fillip…illicit distilleries. The other danger is that drinking behind the wheel will increase exponen- tially. Drivers being robbed of their din- ner at the roadside inn, a charpoy to rest on and a couple of tots to relax and ease the stress of driving long hours will now follow the “to go” option and carry their alcohol into the cabin. Over the years, the myth has gelled into a reality that they need the drink, it makes them stay awake and drive safer rather than more Justofficiallyblockinga500m swatheofrealestateoneither sideofhighwaysisnotgoingto hackit.Rashdrivingandcallous indifferenceshouldbetackled. Column Bikram Vohra/Liquor Ban

31. | INDIA LEGAL | April 17, 2017 31 TIME TO UNWIND: (Left) Pubs and breweries in the popular Cyber Hub in Gurugram will be forced to think of ingenious ways to circumnavigate the law; (above) highway commuters take a break at a dhaba dangerously. This equation is not folk- lore in their minds but an actuality. It is a tradition and part of the trucker DNA. They will walk more than half a kilo- meter to get it. W ith the country holding the world record in road deaths at around 400 a day, of which a little over half are on highways and the rest in cities, the two main caus- es are speeding and yes, drunken driving. Overloading of trucks and frightful maintenance in which the axle snaps are the most common contribution to accidents. There are no stats available for what percentage of accidents are caused by drunks but it is a sobering thought that over 62 percent of the 1,40,000 people who die every year in crashes and colli- sions (one in five being minors) are pedestrians. This means that just officially blocking a 500 m swathe of real estate on either side of highways is not going to hack it. It is the carelessness of rash driving and callous indifference to life in the city that should be tackled. Most of the deaths occur in the city and are caused by careless driving under the influence of liquor. The whole aim of the exercise is lost now that efforts are underway to denotify highways. The ribbons where the milestones are in yellow on white are national and the ones that are green on top are state ways. By officially denotify- ing these roads, the Supreme Court order can be bypassed and the liquor shops and restaurants kept open. If that’s the way to circumnavigate the law, why even bother to impose it on a luckless few who might be caught in the dragnet. Truth be told, people will drink and find drink if they are so inclined. As states like Maharashtra, Rajasthan and UP move their bureaucracy to white- wash the yellows and greens and con- vert them into urban roadways which are marked by white milestones, the irony is doubled. One, the government itself, whether state or centre, is trying to beat its own Supreme Court’s decision, which is odd in itself since it should either appeal or enforce the legal fiat. Add to that the fact that this is being achieved by cheating blatantly and you have a very awkward situation. Like it or not, such a ban might have made a bit of sense in cities and towns where city roads would have been included. That means every restaurant and hotel in India would be adversely impacted and we would have virtual public prohibition in the country. The way it is now, is this move to lower the status of the roads a contempt of court?

32. TheapexcourtenlargesthescopeofaPILfiledonfarmer suicidesinGujarattoencompassproblemsfacedbythe agrariancommunityacrossthecountry.Thisisawelcomestep By RK Misra in Gandhinagar Economy/ Agriculture Crisis HAT began as a Gujarat farmer’s effort to save those of his ilk from economic ruin and consequent suicides is now beginning to bear fruit after decades of struggle. Bharatsinh Jhala, director of the NGO, Citizens Resource Action and Initiative (CRANTI), finally had a reason to smile after the Supreme Court expanded the scope of his petition—filed on the plight of the farmers of Gujarat W 32 April 17, 2017 leading to a spate of suicides —to cover the entire country. On March 27, the Supreme Court bench headed by Chief Justice JS Khehar and Justices DY Chandrachud and SK Kaul directed the centre to report to it about the line of action to be taken by state governments to deal with the “serious issue” of farmers taking their lives. The apex court ruled: “Learned Additional Solicitor General PS Narasimha submits that the central government is in the process of taking steps but implementation should be at the level of the state. The central government sought two weeks’ time. But given the importance of the issue, we give four weeks for the proposed line of action to be taken to deal with farmers’ suicide. The proposed line of action may TOUGH TIMES Drought and the vagaries of nature affect the lives of farmers all over the country P oughing a National Furrow UNI

33. Crime Records Bureau (NCRB) revealed that the number of suicides by persons self-employed in farming/agriculture was 11,772 in 2013, while the total number of suicides was 1,34,799. Interestingly, during the 2014 general elections, farmers’ suicide in Gujarat was the subject of a slanging match between then Gujarat chief minister Narendra Modi and AAP leader Arvind Kejriwal. The AAP leader claimed that 5,874 farmers had committed suicide in the last ten years, while Modi put the figure at only one farmer who had killed himself due to crop failure. The actual figure given to Jhala in response to his RTI plea to the government stands at 692 in Gujarat for the period between 2003 and 2012 when Modi was the chief minister. On March 24, Gujarat agriculture minister Chiman Shapariya stated in the assembly, in response to a question by Congress legislator Tejshree Patel, that 91 farmers had committed suicide across 14 districts of Gujarat due to crop failure in the last five years. While vary- ing figures are quoted, the core issue of distressed farmers remains to a large extent unaddressed. This is the reason why Jhala is thankful that the highest court in the country has taken note. be filed within four weeks.” During the hearing, the bench said that the government should propose a policy which deals with the root cause of farmers distress. The Supreme Court’s words were a source of joy for Jhala although he pointed out to India Legal that he was a mere cog in a big wheel that had stirred the country’s highest court into taking action. “So many have helped out in this endeavour, like Mallika Sarabhai who founded CRANTI, the late Mukul Sinha of Jan Sangharsh who aided the legal fight in Gujarat and Colin Gonsalves, who is fighting our case in the Supreme Court. He even paid for my travel to Delhi. It is the dedication and selflessness of so many of them that has borne fruit. Every farmer of this country owes them a debt of gratitude,” he said. D uring the hearing of the case, the Supreme Court noted that the government was going in the “wrong direction” while addressing the issues affecting farmers. Asking the centre to appraise it of a policy road- map, it pointed out that paying compensation to the family of the victims “post facto” was not the solution. Addressing issues to redress the genuine causative factors leading to it, the court felt, was the right answer. CRANTI filed the petition in the Supreme Court after the Gujarat High Court turned down its plea in 2013 on the plight of the farmers and the spate of suicides among them. The High Court felt these were policy matters on which it could not issue directions. The NGO had filed its petition on information it obtained through an RTI query which revealed that 692 farmers had committed suicide in Gujarat between 2003 and 2012. CRANTI had sought a compensation of `5 lakh each for the families of the deceased. Jhala contended that the perusal of the police documents related to the suicides indicated that the farmers did not get crop insurance money and this led to financial distress. It was for this reason that his organisation had sought a direction to the state government to announce a financial package for farmers during drought. The affidavit, filed in the apex court by the union ministry of agriculture, admits that of a total of over one lakh suicides in the country in 2013, farmer suicides accounted for a sizeable number. Data maintained by the National | INDIA LEGAL | April 17, 2017 33 Duringthe2014 generalelections, thenGujarat chiefminister NarendraModi claimedthat only onefarmerhad committedsuicide intenyearsdueto cropfailure. In2014, AAPleader ArvindKejriwal saidthat nearly5,874 farmershad committed suicidein Gujaratoverthe lasttenyears. RELIEF NEEDED Protesting farmers at Jantar Mantar pleading for loan waivers

34. Courts/ Punjab Law Officers 34 April 17, 2017 ULLED up by the Supreme Court for arbi- trary guidelines in the appointment of law officers to represent the state, the Punjab government has stipulated rules which are even stiffer than those required for the appointment of High Court judges. The new professional as well as financial qualifications for the selection of law officers in the Advocate General's office has been incorporated in the Punjab Law Officers (Engagement) Bill, 2017, passed by the assembly on March 29. It has kicked up a row with leading advocates saying it is impractical and would benefit only the rich. Under the new legislation, an advocate having a minimum legal experience of 14 years and a minimum professional income of `10 lakh in the past three years would be eligible for the post of Senior Deputy Advocate General. The legislation provides that the candidate for the post of Senior Additional A-G should be a designated senior advocate with 20 years of practice and a minimum annual professional income of `20 lakh in the past three years. For the post of Additional A-G, the candidate is required to be a designated senior advocate with 16 years practice and minimum annual professional income of `15 lakh in the past three years. The Bill has fixed a minimum of three years' legal Tightening ApleaintheSupremeCourthasforcedthePunjabgovernmenttolaydownrulesforappointing judicialofficers,butindoingso,ithascomeupwithstifferclauses By Vipin Pubby in Chandigarh P TOUGH NORMS The strict conditions laid by the government for law officers are being seen as impractical Anil Shakya

35. practice for the post of Assistant A-G with the proviso that the candidate should have a minimum annual professional income of `3.5 lakh. However, under Articles 217 and 224 of the constitution, there is no provision of any financial criteria for the appointment of High Court judges. The only necessity is that the candidate should have been practicing in the High Court for 10 years. Similarly, for the appointment of Advocate General, the provision under Article 165 is that the government shall appoint a person who is qualified to be appointed as HC judge. Many advocates say that the stiff rules would not be workable in Chandigarh. They think that these may suit lawyers in Delhi or other metros with commercial litigation. The state government was forced to bring in legislation laying down qualifications for appointments in the A-G's office following a directive by the Supreme Court in March last year following a petition by an advocate, Pardeep Kumar Rapria. His petition had pointed out that both Punjab and Haryana were doling out largesse to their favourite lawyers by appointing them without any qualifications or criteria in the Advocate General's office. The governments were also spending huge amounts of money on these law officers. His petition pointed out that the Punjab government had appointed as many as 174 law officers. These included 74 Additional A-Gs, five senior deputy A-Gs, 40 deputy A-Gs and 55 Assistant A-Gs. Haryana was a step ahead with 183 law officers in the A-G's office. These included 58 Additional, one Senior Deputy, 62 Deputy and an equal number of Assistant A-Gs, according to an affidavit submitted by the Haryana government in the Supreme Court. As per the affidavit, Additional A-Gs were paid a monthly remuneration of `1.40 lakh, while Deputy A-Gs received about `43,000 and Assistant A-Gs about `28,000 besides other perks and privileges. They were allowed private practice except in cases where the state was a party. The state government spent `18.71 crore on the state A-G's office between April 1, 2012 and January 31, 2013 as per official figures. N ot surprisingly, a majority of these officers were not appointed on merit or on the basis of experience. Almost all of them were either related to politicians, senior advocates, officers or judges. Many of them were juniors who had made no mark whatso- ever in the profession. A Comptroller and Auditor General (CAG) report had also pointed out that many of them remained out of work most of the time. It had questioned the “faulty selection of law officers resulting in idle payment of salary”. The state government, in its reply to CAG’s objections (reproduced in the petition by Rapria), had asserted that it was within its rights to appoint law officers arbitrarily. “It is the choice, prerog- ative and discretion of the government to engage such law officers to defend and plead their cases through whom it has faith, confidence and trust, which may be based on word of mouth and performance.” In its affidavit to the Supreme Court, the state admitted that it had not set up any selection committee for appointments to the A-G office and had left the selection to the “discretion” of the A-G. Haryana is likely to follow Punjab in fixing minimum qualifications and rules for appointment of law officers. However, some of the leading lawyers aspiring to be part of the A-G’s office are planning to move the courts against the tough guidelines laid out by the Punjab government. Whatever may be the final outcome, it is certain that judicial intervention has brought some semblance of order to the appointment of law officers. the Screws | INDIA LEGAL | April 17, 2017 35 Thenewrulesforselection oflawofficersintheA-G’s officehavebeenincorporated inabillpassedbythe Punjabassembly.

36. Media/ Sensational Coverage 36 April 17, 2017 ERALA, which is among the most literate states in the country, also has a record number of vernacu- lar news channels that jos- tle for space in an ever-shr- inking news environment. This week it set another record, albeit a dubious one. Perhaps for the first time in the state the entire top brass of a local news channel, Mangalam TV, the latest entrant in the market, had to go behind bars. Their crime was laying a honey trap for the sake of generating sensational news. Mangalam TV allegedly “caught” state transport minister AK Saseendran indulging in a sex chat on the phone with a housewife who had approached him for help. His lewd conversation (almost a monologue) shocked and out- raged the entire state on March 26 morning and the minister was left with no choice but to tender his resignation. But the story did not end there. A week after the scandal shook the conscience of the entire state and deeply embarrassed the Left government, ten members of the TV channel who the police believe had played an active role in trapping the minister and recording his audio were arrested. The action was not initiated by the state machinery crack- ing down on an “unfriendly” channel but was the outcome of the press demanding action against Mangalam TV for tar- nishing the image of the media in general and women journalists in particular. CEO BOOKED The channel’s CEO, R Ajith Kumar and the head of the Investigation Team, R Jayachandran have been taken into police custody for two days while a news coordinating editor and two news editors have been remanded to 14 days of judicial custody by the Chief Judicial Magistrate in Thiruvananthapuram. They were booked under Section 67 A of the Information Technology Act 2000 and 120 (B) of the Indian Penal Code. Five others including the Chairman of the channel Sajan Varghese have been let off on bail by the police. While 67 A of the IT Act pertains to “punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form”, section 120 (B) deals with criminal conspir- A Sting in the Tale It’satoughlegalbattleforMangalamTV withitstopbrassbookedforairingasexuallyexplicit audioclipinvolvingastateministerwhichtheyclaimedwassubmittedbyaharassedhousewife By Naveen Nair in Thiruvananthapuram K IN HAPPIER TIMES: (Left-right) Ajith Kumar, Mangalam TV CEO with Kerala CM Pinarayi Vijayan

37. acy to commit an offence. It was very clear from the outset that section 67A of the IT Act would be slapped given that the channel had telecast and published on its website the explicit sex chat involving the minister. But the conspiracy angle is something that the police would need to investigate and gather evidence. Advocate Mujeeb Rahuman of the Nationalist Youth Congress is the petitioner in the case. He says, “Apart from the offence of transmitting sexually explicit material the channel has also done cyber forgery by editing the clip according to their wish. The sound of the woman is nowhere there which means it’s a clear conspiracy to trap the minister rather than a genuine sting done with any journalistic purpose.’’ Rahuman has also submitted a petition to the Indian Broa- dcasting Foundation regarding the nature of the aired audio clip pointing out that it was in violation of the Cable Tele- vision Network (Regulation) Act 1995. The channel had claimed all the while that the audio clip it aired was of the minister making a sexual advance to a housewife who had approached him for help. The channel claimed it had sourced the recording from her. But within a week’s time the CEO himself came on air to reveal that it was indeed a sting operation done by a woman journalist of the channel and that there was no housewife involved. A LONG LEGAL BATTLE More trouble lay in store for Mangalam TV. Close on heels of the sting controversy, the Parappanangadi police station in North Kerala received a cyber com- plaint from a 20-year-old girl that her picture was circulated by the CEO and a news editor of the channel through a WhatsApp group and other social media platforms. “The picture was clicked at a college function sometime ago when the minister (Saseendran) had come to inaugurate it. I happened to be a volun- teer and some mediaperson clicked a picture when the minister greeted me. Now I am shocked to find that on social media,’’ the girl who wanted to maintain her anonymity told India Legal. The picture in question, the girl alleges, was perhaps circulated to project the minister as a person with a glad eye but it had defamed her. Journalism in Kerala has certainly hit an all-time low with the Saseendran sting and senior journalists are a wor- ried lot. C Gowridasan, bureau chief of The Hindu told India Legal: “It is not as if journalistic ethics have crumbled in Kerala. But now we will all be painted with the same brush which means any- body can question our credibility. I think with this one irresponsible act we have played into the hands of those who want to tame this profession.’’ Meanwhile, the mysterious woman journalist who conducted the sting operation finally surfaced before the Chief Judicial Magistrate in Thiruva- nanthapuram on April 6 with a petition which clearly says her side of the story. Nazila Nazimuddin, a senior sub editor at the channel claims that the former minister had actually made sexual advances to her following which she had informed the channel’s CEO that she would like to raise the issue before the State Women’s Commission in the state and other concerned authorities. But the channel head had coaxed her into belie- ving that it was not the best option and a sting would be more effective. But there seemed to be a lot of unan- swered questions in her statement that has now been recorded by the court. If the woman had indeed faced sexual advances from the minister it constituted a crime and steps needed to have been taken by her organisation as per the guidelines of the Supreme Court laid down in the Vishaka case in 1997. In that context the CEO could be held liable for concealing the information. Also, Nazimuddin claims she wanted to come live on television and declare that it was she who had done the sting operation to expose the minister. But the channel denied her that permission and weaved the story of a sexually harassed housewife instead. For the editorial team of Mangalam TV it looks like tough times ahead with the government being given a reason to crackdown on it. It might well be the beginning of a huge legal battle for entire Mangalam media group itself. | INDIA LEGAL | April 17, 2017 37 MangalamTV allegedly “caught”state transportminister AKSaseendran indulgingina sexchatonthe phonewitha housewife. M angalam TV which was launched last week is a subsidiary of Mangalam Publications which was started by entrepreneur, MC Varghese, in Kottayam, Central Kerala. The group made its mark with the monthly journal, Mangalam launched in 1969 which soon became a weekly due to its huge popularity among middle class readers in Kerala. By 1984 it notched up circulation of more than 1.5 million copies, becoming one India’s leading verna- cular weeklies. Mangalam weekly which had made a space for itself in the market by serialis- ing frothy novellas and running short stories launched its daily which unlike the magazine never became a front runner. The daily had always had a long history of run-ins with the law and often got slapped with defamation cases for its sensational reporting. Varghese and his sons soon diversi- fied into various other business including health, confectionary, hospitality and education while keeping their core focus on its publications. The family runs hos- pitals, a school and a couple of colleges in the state. It also runs the children’s magazine, Balamangalam. Mangalam TV is the latest venture from the group. TheMangalamGroup It is into media and various other businesses

India Legal 17 April 2017

India Legal 17 April 2017

India Legal 17 April 2017

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