India Legal - 18 November 2019

NDIA EGALL STORIES THAT COUNT
I
November18, 2019
Shiv Visvanathan on flaws
in New Education Policy
Judicial Delays: The
Supreme Court steps in
STTTORORORIES THAT COUNTSTSTSTORIES THAT COUNT
,
AVERDICT
ATLASTThelongestandmostcontentioussuit
inIndianjudicialhistoryfinallygets
closurewithastructuredjudgment
fromtheConstitutionbench,but
questionsremainaboutthefuture
courseofthesensitivedispute

OR most of last week, the Supreme
Court has been neck-deep in tackling a
slew of petitions on the constitutional,
administrative and law-and-order fall-
out in Jammu and Kashmir following
the abrogation of Article 370 by Prime Minister
Narendra Modi’s government. The petitioners
and their advocates are arguing that the
Kashmir imbroglio involves pressing matters of
habeas corpus, liberty and the right to life of
about seven million people.
The magnitude of the conditions in Kashmir,
which has been under a “communications lock-
down” since August 5 when the government per-
suaded the parliament to unilaterally scrap the
region’s special constitutional
status and confiscate its state-
hood, has not been lost on the
apex court. Pleas relating to
constraints forced upon the
press and communications are
being heard by a bench of
Justices NV Ramana, R
Subhash Reddy and BR Gavai.
Even as the hearings and
arguments echo inside the
Court’s hallowed chambers, there is a parallel
debate raging within the country that is as signifi-
cant as the legal and constitutional imperatives
with which the Supreme Court is now grappling as
a cavalcade of lawyers, including Kapil Sibal, rep-
resenting Congress leader Ghulam Nabi Azad, and
Vrinda Grover, representing Kashmir Times editor
Anuradha Bhasin, unleash a fusillade of legal chal-
lenges.
The parallel debate—the one outside the
Supreme Court—is whether the government in
abrogating Article 370 has achieved an unin-
tended result and consequence: Making India’s
internal matter, an issue between the erstwhile
state of Jammu and Kashmir and the Indian
Union, an international matter. It started with
US President Donald Trump’s public assertion
that Prime Minister Modi had asked him to
help mediate the Kashmir issue between India
and Pakistan. India was quick to issue a firm
and unequivocal denial.
This point was raised again by several crit-
ics—not necessarily diehard anti-BJP politi-
cians—when Pakistan’s Imran Khan openly jet-
tisoned Pakistan’s legal commitment to bilater-
alism as spelled out in the Simla Agreement
and took the matter to the UN. Khan used the
August 5 decision as the badly needed excuse
and justification for the resumption of anti-
Indian international sabre rattling and attempt-
ing to make Kashmir the focal point for world-
wide Islamist unity.
And things became a little
untidier for India when Mal-
aysia, Turkey and China raised
the Kashmir issue in the UN,
and later the UN High Comm-
issioner for Human Rights
issued a statement that “the
people of Indian-administered
Kashmir continue to be dep-
rived of numerous basic free-
doms” and urged the Indian authorities “to
unlock the situation”.
The Indian government vehemently
denounced all resolutions and proposals that
would constitute interference in India’s internal
affairs. And there is little doubt in the minds of
historians that Kashmir is an integral part of
India under both the Indian and J&K Constitu-
tions. And therefore, logically, no matter what
the geopolitical imperatives, Kashmir remains
an internal matter.
But there must have been that nagging
doubt—a ghost from the past—among the man-
darins of South Block about whether they had
been right about voting against Sri Lanka for
“human rights violations” in 2012 and 2013 in
KASHMIRI
CONUNDRUMS
Inderjit Badhwar
F
ByscrappingArticle370,thecentre
hasmadetheKashmirissue,an
internalmatterbetweenerstwhile
stateofJ&KandtheIndianUnion,
international.Nowitisdenouncing
resolutionsfromcountrieswhich
constituteinterferenceinKashmir.
Letter from the Editor
4 November 18, 2019

| INDIA LEGAL | November 18, 2019 5
the UNHRC and supporting an independent
inquiry into “war crimes” against Sri Lanka
stemming from its military victory against
LTTE militants. Sri Lankans had then vehe-
mently denounced India for supporting for-
eign meddling in its internal affairs.
T
he latest criticism of the government’s
attempts to douse some of the fires lit
by the international clamour on Jam-
mu and Kashmir comes in the wake of the
invitation to select members of the European
Parliament to visit Kashmir. Some of those
opposed to this initiative call it a PR stunt,
an “event” that will fool nobody or change
ground realities. Others say it was a counter-
productive step by the MEA because it further
internationalises the Kashmir “problem”.
A brief internet social media exchange says
it all:
“This government is good at event manage-
ment. Till yesterday they were saying, Kash-
mir is a bilateral dispute and today they unof-
ficially invited EU.”
“This government can’t decide between
keeping it an internal matter, bilateralising it,
or going international.”
According to one historical perspective, the
ironical twist is that the government legally
internationalised Kashmir the moment it uni-
laterally abrogated Article 370 which was a
bilateral treaty between India and the erst-
while independent state of Jammu and Kash-
mir in 1948 which guaranteed accession to
India and was India’s constitutional window
that allowed Indian laws to apply to the state
(without a former “merger” as with other pre-
Independence princely states).
This averment holds that Might may be
Right in scrapping 370; but in doing so we
are also scrapping our bilateral relationship
and reverting to the interim Instrument of
Accession which is subject to the UN resolu-
tions in which India pledged to a ceasefire
and a plebiscite in which the state’s people
could opt in or out of India. Article 370 was a
“temporary” provision in so far as it was sub-
ject to final approval by the Constituent
Assembly of Jammu and Kashmir which
wound up in 1957 after approving the Article.
Legally speaking, the abrogation of Article
370 makes Pakistan a stakeholder in a “dis-
pute” in which Pakistan should have no locus
standi or causus belli. Pakistan was declared
the invader of a sovereign kingdom (J&K) in
1948 by the UN, and should never have been
allowed to have any legitimate territorial or
constitutional claim or role in what was at
worst a jurisdictional dispute between India
and a fiercely independent former princedom
which had fallen into India’s protective em-
brace through a series of voluntarily signed
treaties and covenants to avoid being subju-
gated by Pakistan or even its own minority
adherents to the diktats of the Muslim League
and its Islamist two-nation ideology.
The question all patriotic Indians must ask
themselves is: How is it that the people of
Jammu and Kashmir who looked upon India
as their saviour turned against India? How
did India turn its friend and ally into a hos-
tile, sulking population? Why are rank and
file Kashmiris who warmed to Morarji Desai’s
Janata Party government and BJP’s Atal
Bihari Vajpayee, so bitter toward successive
Indian governments?
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
FEAR AND DESPAIR
People reading
newspapers in
Srinagar amid
curfew-like restrictions
imposed by the
government after the
abrogation of Article
370 in J&K
UNI

ContentsVOLUME XIII ISSUE1
NOVEMBER18,2019
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Senior Content Writer Punit Mishra
(Web)
6 November 18, 2019
The longest and most contentious suit in Indian judicial history finally gets closure with a
balanced verdict from the Constitution bench, but questions remain about the future
course of the sensitive dispute
A Mature Judgment 12
LEAD
A remedy to reduce the number of those behind bars because of delays by High Courts in
hearing their appeals continues to be elusive. The Supreme Court has now stepped in to apply
some arm-twisting
Long Wait for Justice 16
SUPREMECOURT
The NGT’s initiatives to clean up the
Yamuna get a fillip from the apex court
which upholds the green tribunal’s order
asking the Delhi government to levy
sewerage charges on all households
20Pollute? Pay Up

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: AMITAVA SEN
In a shocking case, a madrassa principal and
15 others were sentenced to death by a tribu-
nal in Bangladesh for killing a woman who
resisted sexual harassment
42Murder Most Foul
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
Media Watch ..................31
International Briefs..........40
Satire ..............................50
Deep Divisions
The National Register of Citizens paves the
way for every state to have its own version.
This opens a Pandora’s Box of many forms of
division and segregation, including colour
prejudice, in our country
48
SOCIALMEDIA
Politics of
Rape
A POCSO court verdict, acquitting
three rape accused, some with links
to the CPI(M) in Kerala, has kicked
up a storm as charges fly thick and
fast of police and prosecution suc-
cumbing to political interference
28
Twitter’s move to ban political advertisements should make the online ad indus-
try garner support for itself during the passage of the Personal Data Protection
Act as a strong lobby will oppose the use of personal data for profiling
Twitter Challenge 36
Delhi and its adjoining areas are
facing an unprecedented crisis
as pollution levels spiked to dan-
gerous levels for days together,
forcing the apex court to inter-
vene and summon officials from
three states. Is there a way out?
Breathing
Poison
45
32
GLOBALTRENDS
STATES
OPINION
ENVIRONMENT
The Maulana’s India connection
Maulana Fazlur Rehman, the man who has staged a huge protest rally in
Islamabad demanding the resignation of Pakistan Prime Minister Imran
Khan, has links with India
44
Though the new education policy
looks liberal, it is counterproductive
and not transformative. Education
has to be understood ecologically
for change to be truly meaningful
A Spectre
Called Exams 26
MYSPACE
With J&K becoming a UT,
teething problems are evi-
dent. On the first day, the
centre transferred powers for
land registration from the
judiciary to the executive,
leading to lawyers’ protest
in Jammu
Judicial
Logjam
SPOTLIGHT
22
Vice-president M Venkaiah
Naidu’s 16-point programme to
reform parliamentary institutions
will go a long way in restoring
the trust people reposed
in them
Reforms: Need
of the Hour
COLUMN

8 November 18, 2019
Anthony Lawrence
RINGSIDE

The Supreme Court dismissed a
review petition of its judgment in
the well-known Second Judges case,
citing “inordinate delay of 9,071 days”
and lack of any satisfactory explana-
tion from the petitioners. The verdict in
the Second Judges case, delivered on
October 24, 1993, is significant as it
introduced the collegium system for
selecting and appointing judges to the
higher judiciary in India.
A nine-judge bench of Chief Jus-
tice of India Ranjan Gogoi and Jus-
tices SA Bobde, NV Ramana, Arun
Mishra, Rohinton Fali Nariman, R
Banumathi, UU Lalit, AM Khanwilkar
and Ashok Bhushan in its ruling said,
“Though the present petition is liable
to be dismissed on the ground of
delay itself, yet we have carefully gone
through the review petition and the
papers connected therewith.” The
review petition was filed by National
Lawyers’ Campaign for Judicial
Transparency and Reforms. A review
plea must be filed within 30 days of
the verdict and be based on objec-
tions that are specific in nature.
Courts
—Compiled by India Legal Team
Pune court rejects bail
in Elgar Parishad case
Six of the nine accused and arrested
activists in the 2018 Elgar Parishad-
Bhima Koregaon case—Sudhir Dhawale,
Rona Wilson, Varavara Rao, Shoma Sen,
Mahesh Raut and Surendra Gadling—were
denied bail by a special UAPA court in Pune.
The Court ruled that the evidence presented
before it—including letters and telephonic
conversations between the accused—
brought to light, prima facie, that they were
actively involved with the banned organisa-
tion, CPI(Maoist), and working towards att-
aining its objectives. Their conduct proved
that they were acting against democracy, the
Court observed. The statement of a surren-
dered former Maoist was also considered by
the Court while arriving at a conclusion.
The Court also said that it had no option
but to take into consideration all material
submitted by the investigation agencies in
UAPA cases, and the issue whether they
were admissible or not could be examined at
the stage of trial and not during a plea for
bail. This is the rule set by the Supreme
Court, it said.
So far, the case has been dealt with by
three different judges and the defence has
had to put up its arguments all over again
before each new judge.
Saying it was ready to move for trial, the
Court sought the views of the defence and
the prosecution in this regard. “All bail appli-
cations before this court are now decided
and we are now ready to move for trial if you
are ready,” the Court said. The framing of
the charges is yet to take place and only
then will the trial start.
The Bombay High Court had on October
15 rejected the bail pleas of the three others,
Sudha Bharadwaj, Arun Ferreira and
Vernon Gonsalves. All the nine accused
are in prison.
While hearing Sajjan Kumar's bail
plea, a three-judge bench of the
Supreme Court instructed the All India
Institute of Medical Sciences to set up
a panel to examine his health and sub-
mit a report in four weeks. Kumar has
been convicted for his role in the 1984
anti-Sikh riots and is serving a life term
after the Delhi High Court ruling in
December last year. He was held guilty
of murder, promoting enmity between
groups and defiling public property. An
appeal against the High Court order is
pending before the Supreme Court.
The apex court order came on the
request of Kumar's counsel who plead-
ed that he had lost substantial weight
in prison and his current medical con-
dition was cause for concern. The top
court was otherwise inclined
to hear the matter only during the win-
ter vacation this year.
The bail matter will now be heard
again during the summer vacation
next year.
AIIMS to examine Sajjan Kumar's health: SC
Review plea in
Second Judges
case dismissed

ISTHAT
What is a power of attorney?
It is a document that allows a
person to act/decide on your
behalf in financial matters or in
any other transaction. It could
also be a general power of attor-
ney—offering a carte blanche to
the holder of the power of attor-
ney to decide on any matter that
affects the “principal” (who app-
oints the power of attorney). A
power of attorney is given when
the “principal” can’t be present
to sign the necessary legal doc-
uments. It is often used by NRIs
to manage their property affairs
in India. They generally autho-
rise an “agent” to act on their
behalf through POA.
The POA can be registered
anywhere in India before the
local registrar of sub-assur-
ances and holds validity
throughout India. Stamp duty
must be paid to make a POA
legally enforceable.
— Compiled by Ishita Purkaystha
The Power to Act for Another Person
What happens if you cause
disappearance of evidence of an
offence?
Under Section 201 of the IPC, if a
person knowingly, or having reason
to believe that an offence has been
committed, causes evidence to dis-
appear or purportedly falsifies
information before the court,
he/she is liable for:
Seven years of imprisonment and
fine in case of a capital offence for
which evidence was made to dis-
appear;
Three years of imprisonment and
fine in case of an offence punish-
able by life imprisonment and;
One-fourth of the longest term of
the imprisonment mandated for the
offence, or with fine, or with both
in case the offence is punishable
with less than 10 years’ imprison-
ment.
?
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Can currency notes torn
up/damaged be exchanged in
a bank?
All bank branches are liable
to accept soiled notes and
pay the full value. However,
as per the Reserve Bank of
India (Note Refund) Rules,
2009, one can get a full or
half refund of the value of a
mutilated note depending on
its condition. A currency note
cut or torn deliberately will,
however, not be refunded.
The RBI also issues exchan-
ged notes. Its website has a
list of currency
chests, where bank
notes and coins
are stored on
behalf of the RBI
for distribution.
Damaged or torn
notes are accepted
over the counter
and a paper token, DN-1, is
issued. The refund value and
criteria vary according to
denomination, as specified in
the 2009 rules.
What is forgery? What is the pun-
ishment for forging documents?
According to Section 463 of the
IPC, forgery is making a false docu-
ment or part of it with the intent to
cause damage to public/ person or
support any claim/title or to cause
any person to part with property, or
to enter into any express or implied
contract, or with intent to commit
fraud. Section 468 says that a per-
son convicted for forgery can be
imprisoned for a maximum of seven
years along with a fine.
Intention to Cheat
Exchanging
Currency
10 November 18, 2019
Why are goods at duty-
free shops exempted
from GST?
There is no GST on
goods sold to outgoing
passengers at duty-free
shops at airports as
these shops are within
the limits of the customs
area of India. The goods
stocked in these shops
are imported from other
countries and kept under
valid warehouse licences
under the Customs Act.
When outbound passen-
gers buy these goods, it
constitutes “export”.
Once purchased,
these items are carried
as a passenger’s per-
sonal belongings, on
which no tax can be
levied at any stage of the
transport. As a result,
under Section 16(1) of
the Integrated Goods
and Services Tax Act,
2017, it is termed “zero
rated supply”.
No Tax Burden
No Evidence

Lead/ Ayodhya Dispute
N a landmark and unanimous ver-
dict last Saturday, a five-judge
Supreme Court bench cleared the
way for the construction of a Ram
temple at the disputed site in
Ayodhya. The 164-year-old con-
tentious Ayodhya title suit has dominat-
ed India’s political and social landscape
with a volatile mixture of communal
tensions, bitterness and angst. The
Supreme Court brought down the cur-
tains on the festering issue by giving
possession of the 2.77 acre disputed land
to the Ram Janmbhoomi Nyas with the
judges agreeing that Ram Lalla Viraj-
man (the presiding deity) was a juristic
entity having right to ownership of
land. Nyas was representing the presid-
ing deity.
The Sunni Waqf Board will be given
an alternate site of five acres for the con-
struction of a mosque. The judgment
said: “Simultaneously, with the handing
over of the disputed property to the
Trust or body…a suitable plot of land
measuring 5 acres shall be handed over
to the Sunni Central Waqf Board… The
land shall be allotted either by: (a) The
Central Government out of the land
acquired under the Ayodhya Act 1993,
ThelongestandmostcontentioussuitinIndianjudicialhistoryfinallygetsclosurewithastructured
judgmentfromtheConstitutionbench,butquestionsremainaboutthefuturecourseofthesensitivedispute
By Atul Chandra
I
A Verdict at Last
Anil Shakya

or (b) by the State government at suit-
able prominent place in Ayodhya. The
Central Government and the State shall
act in consultation with each other to
effectuate the above allotment in the
period stipulated.” The land will remain
vested in the statutory receiver (central
government) till a trust is formed to
manage it. The government has three
months’ time to form the trust. Nirmohi
Akhara, whose petition for management
of land was dismissed, will have its rep-
resentative as a trustee, ruled the bench
headed by the Chief Justice of India
Ranjan Gogoi. Regarding Nirmohi
Akhara, the judgment said that it was
not a shebait (devotee) and hence its
suit was barred by limitation.
At present, the disputed Ayodhya
land vests with the central government
which acquired it after the acquisition of
a certain area as Ayodhya Act was pa-
ssed in April 1993.
Justice Gogoi took 30 minutes to
read the operating parts of the judg-
ment. Others on the bench included
Justices SA Bobde, DY Chandrachud,
Ashok Bhushan and S Abdul Nazeer.
S
enior advocate CS Vaidyanathan,
who was representing Ram lalla in
the case, welcomed the judgment.
“It is a very balanced judgment and a
victory of the people,” he said. Though it
respected the verdict, the Sunni Waqf
Board said it was dissatisfied with parts
of the judgement, especially with the
land of the mosque being handed over
to the Hindus. Board’s lawyer and con-
vener of All-India Muslim Personal Law
Board Zafaryab Jilani did not rule out
filing of a review petition against the
judgment. He did not see any merit in
the allotment of an alternate site. “The
verdict holds no value for us. It has a lot
of contradictions,” Jilani told the media.
Jilani and Maulana Khalid Rashid
Firangimahli of Lucknow’s Aishbagh
Eidgah called for peace and restraint.
Kamal Farooqui of the Personal law
Board was unhappy with judgment.
“Iske badle hamey 100 acre zameen bhee
den to koi faayda nahee hai. Hamaaree
67 acre zameen to already acquire kee
hui hai to humko daan me kya de rahe
hain vo? Hamaaree 67 acre leney ke
baad five acre de rahe hain. Ye kahaan
ka insaaf hai? (Even if they gove us 100
acres of land, it is of no use. Our 67 ac-
res of land is already acquired, so what
are they giving us as charity? After tak-
ing 67 acres from us, they are giving
UNANIMOUS VERDICT
The daily arguments on the
disputed Ram Janmabhoomi-
Babri Masjid site case were heard
by a five-judge Constitution bench
of (clockwise from top left) Chief
Justice of India Ranjan Gogoi and
Justices SA Bobde, DY
Chandrachud, Ashok Bhushan
and S Abdul Nazeer
Thoughitrespectedtheverdict,the
SunniWaqfBoardsaiditwasdissatisfied
withpartsofthejudgement,
especiallywiththelandofthemosque
beinghandedovertotheHindus.

1528: During the reign of
Mughal Emperor Babur, a
mosque, the Babri Masjid
was built in Ayodhya on a site
which many Hindus consider
the place of birth of Lord
Rama. The Babri Masjid was
named after Babur.
1853: First recorded violent
clashes broke out at the reli-
gious site.
1859: The colonial British
administration created fences
to separate worship places;
Muslims were allowed to use
the inner court while the
Hindus used the outer court.
1949: Idols of Ram Lalla are
placed surreptitiously under
the central dome. The govern-
ment proclaimed the site a
disputed area and locked
the gate.
1950: Gopal Simla Visharad
filed the first suit in a Faiza-
bad civil court for rights to
perform puja of Ram Lalla.
Paramhansa Ramachandra
Das also filed a suit for con-
tinuation of puja and keeping
idols in the structure.
1959: Nirmohi Akhara filed
third suit.
1961: UP Sunni Central Wakf
Board filed fourth suit.
1989: The newly-elected Rajiv
Gandhi government allowed
the VHP to perform shilanyas
for the Ram Temple on the
disputed land. The VHP laid
the foundation to build a Ram
temple adjacent to the disput-
ed mosque site.
Dec 6, 1992: The Babri
Mosque was demolished by a
gathering of near 200,000 kar
sevaks. Communal riots
across India followed.
1993: The government took
over 67 acres of land around
the area, sought the SC's
opinion on whether there
existed a Hindu place of wor-
ship before the structure
was built.
Apr 2002: The Lucknow
bench of Allahabad High
Court of three judges began
hearings in the case.
Jan 2003: Archaeologists
started a court-ordered survey
to find out if a Ram Temple
existed on the site.
Aug 2003: The survey found
evidence of a temple beneath
the mosque. However, Muslim
groups disagreed with the
findings.
Sept 2010: Allahabad High
Court’s ruling gave one-third
possession of the site each to
Muslims, Hindus and the
Nirmohi Akhara. By a 2-1
majority verdict (in the bench
of Justice SU Khan, Justice
Sudhir Agarwal and Justice
DV Sharma), plaintiffs repre-
senting Lord Rama, the
Nirmohi Akhara and the Wakf
Board were declared joint
title-holders of the property.
Dec 2010: The Akhil
Bharatiya Hindu Mahasabha
and belief. The Hindus, he said, present-
ed evidence that they used to offer pra-
yers outside the sanctum sanctorum.
The judgment said that there was
evidence to suggest that the Hindus had
been worshipping Ram Chabutara and
Sita Rasoi before the British came to
India. Along with this, Justice Gogoi
said that there was evidence to show
that the outer court of the disputed site
was in the possession of the Hindus.
These points together with the Ram
Lalla Virajman being accepted as a
juristic entity and ASI’s findings tilted
the judgment in favour of the Hindus.
Significantly, the Supreme Court said
that placing of idols in the mosque in
1949 was “illegal”. It also said that the
razing of Babri Masjid by a frenzied
mob in 1992 was a violation of law. Vet-
eran BJP leader LK Advani is one of the
five acres. What kind of justice is this?)
The most dramatic fallout of the ver-
dict lay in the fact that it was greeted
without any overt violence or communal
tension. BJP politicians led by the prime
minister called for calm and peace while
hailing the judgement. Jilani and Mau-
lana Khalid Rashid Firangimahli of
Lucknow’s Aishbagh Eidgah also called
for peace and restraint.
T
he apex court relied heavily on
the findings of the Archaeological
Survey of India’s (ASI) excava-
tions at the disputed site for its judg-
ment. The ASI found that a temple ex-
isted at the site. Going by the ASI re-
port, the Court concluded that the mos-
que was not constructed on vacant land.
The ASI report stated that “a massive
structure with features distinctive of a
temple” was unearthed beneath the
ground on which stood the Babri Mas-
jid. Reading the judgment, Justice
Gogoi said historical records indicated
that Ayodhya was, as believed by the
Hindus, the birthplace of Lord Ram but
title suits cannot be decided on faith
accused in the demolition conspiracy
case. The Supreme Court dismissed the
petition filed by the Shia Waqf Board
challenging an order of the Faizabad
court on its ownership claim to the land.
The judgment came on cross-appeals
filed by both the Hindu and Muslim
parties against the Allahabad High
Court’s order of September 2010 divid-
ing the disputed land equally between
Ram Lalla, Nirmohi Akhara and the
Sunni Waqf Board. The High Court gave
the chabutara (platform), Sita rasoi
(kitchen) and the bhandara to the
Nirmohi Akhara, the land under the
domes which were demolished went to
Sunnis, while the area under the central
dome went to the presiding deity.
The Supreme Court has now demol-
ished the Sunnis’ claim to land in the
absence of any archaeological or histori-
cal evidence.
The judgment came after 40 days of
marathon hearing, said to be second
longest in the Court’s history, by the
Constitution bench which was formed
on January 8 this year to resolve the
Significantly,theSupremeCourtsaid
thatplacingofidolsinthemosquein
1949was“illegal”.Italsosaidthatthe
razingofBabriMasjidbyafrenziedmob
in1992wasaviolationoflaw.
Lead/ Ayodhya Dispute
Alongjourney

Visharad filed a suit in Faizabad district
court for rights to worship the idols of
the Ram Lalla. The first petition filed by
Mahant Raghubir Das in 1885 was dis-
missed by the court.
T
he country, UP in particular, saw
deep communal polarisation
after the 1992 demolition of the
Babri Masjid. Burning to death of kar
sevaks, subsequent Gujarat riots of
2002 and a series of terror attacks,
including the one in Mumbai in 2011,
were said to be the fallout of the Babri
demolition. In a guarded criticism of the
judgment, the CPM said that certain
premises of the judgment were ques-
tionable. “The Court judgment has itself
stated that the demolition of the Babri
Masjid in December 1992 was a viola-
tion of the law. This was a criminal act
knotted and longest title suit in India’s
judicial history. During the course of the
arguments, besides faith, the Hindu par-
ties had cited archaeological evidence to
buttress their claim. Hindus also argued
that Ram’s birthplace was also a juristic
person and, therefore, has a legal claim
to land. The Allahabad High Court also
held the view that the entire disputed
site is deity. In that case, they argued,
that the decision to divide the land
between the three parties was “bad
in law”.
The Muslim parties argued that the
ASI report can at best be treated as an
opinion and not as evidence; idols were
surreptitiously placed in the Babri
Masjid in 1949 to usurp the land. They
also challenged Ram Janmabhoomi
Nyas as having any locus standi in the
case and argued that it was using Ram
Lalla Virajman as socio-political vehicle
for the benefit of Nyas. The protracted
feud had gone on for about 70 years.
Although it was only after the demo-
lition of the Babri Masjid in 1992 that
the title suit came to occupy centre-
stage, it was in 1950 that Gopal Singh
and an assault on secular principle,” the
party said.
With the painful chapter coming to
an end, peace and harmony will hopeful-
ly thrive in the country. Some BJP lead-
ers may not remain contented with this
legal victory as they have spoken about
Kashi and Mathura mosques being their
next targets. Gyanvapi Mosque in Vara-
nasi and the mosque adjoining Krishna
Janmabhoomi have been described as
“eyesore”. Muslims are apprehensive of
another round of Hindu assertion being
unleashed on them. RSS chief Mohan
Bhagwat did not categorically say at a
press conference that the issue of the two
mosques will not be raked up. For the
moment, however, the entire country
breathed a sigh of relief at the closure of
such a long running judicial dispute and
the fact that all sides, regardless of their
political affiliations, have accepted the
verdict with maturity and in keeping
with India’s secular traditions.
Withthepainfulchaptercomingtoanend,
harmonywillhopefullythriveinIndia.
SomeBJPleadersmaynotremainhappy
astheyhavespokenaboutKashiand
Mathuramosquesbeingtheirnexttargets.
and Sunni Wakf Board moved
the Supreme Court, challeng-
ing part of the Allahabad High
Court’s verdict.
May 9, 2011: The Supreme
Court stayed the High Court
order splitting the disputed
site in three parts; remarked
that the HC verdict was sur-
prising as no party wanted a
division of the site.
Feb 8, 2018: The SC starts
hearing the appeals in the title
suit.
Apr 6: Sr Adv Rajeev Dhavan
files a plea in the SC to refer
the issue of reconsideration of
the observations in its Ismail
Faruqui judgment of 1994—
mosque isn’t integral to
Islam—to a larger bench.
Sept 27: SC declines to
refer the Ismail Faruqui verdict
to a larger Constitution
bench; says title suit proceed-
ings can commence on
October 29.
Feb 8, 2018: SC starts hear-
ing the civil appeals.
Mar 14: SC rejects all interim
pleas, including Swamy’s,
seeking to intervene as par-
ties in the case.
Apr 6: Sr Adv Rajeev Dhavan
files plea in SC to refer the
issue of reconsideration of the
observations in its 1994
judgement to a larger bench.
Sep 27: SC declines to refer
the case to a five-judge
Constitution bench. Case to
be heard by a newly constitut-
ed three-judge bench on
October 29.
Jan 8: SC sets up a five-
judge Constitution Bench to
hear the case headed by CJI
Ranjan Gogoi and comprising
Justices SA Bobde, NV
Ramana, UU Lalit and DY
Chandrachud.
Jan 25: SC reconstitutes five-
member Constitution bench
to hear the case.
The new bench comprises
CJI Ranjan Gogoi and
Justices SA Bobde, DY
Chandrachud, Ashok
Bhushan and SA Nazeer.
Jan 29: Centre moves SC
seeking permission to return
the 67-acre acquired land
around the disputed site to
original owners.
Mar 6: SC reserves order on
whether the land dispute can
be settled through mediation.
Nov 9: Verdict delivered.

Supreme Court/ Conclusion of Criminal Appeals
N November 1, a court in
Rampur, Uttar Pradesh,
convicted six accused, in-
cluding two Pakistani
nationals, in the attack
on a Central Reserve Po-
lice Force camp in Rampur in 2008 in
which seven jawans of the paramilitary
forces and a civilian were killed. Four of
them were sentenced to death, while the
remaining two were sentenced to life
and 10 years’ imprisonment, respective-
ly. Mohammad Kausar (a resident of
Pratapgarh) and Gulab Khan (a resident
of Bareilly), accused of hiding the wea-
pons used in the attack, were, however,
acquitted after they spent 11 years in
Bareilly Central Jail.
While Kausar and Khan are unsure
whether their acquittal can help them
get rid of the “terrorist” tag, those am-
ong the six accused must be anxious to
get relief in the form of bail, as and
when they file their appeals in the Alla-
habad High Court against their convic-
tions. It would not be a surprise if those
convicted knock at the Supreme Court’s
doors for interim bail, if the High Court
neither grants them bail nor ensures
expeditious hearing of their appeals.
AremedytoreducethenumberofthosebehindbarsduetodelaysbyHighCourtsinhearingtheir
appeals,continuestobeelusive.Thetopcourthasnowsteppedintoapplysomearm-twisting
By Venkatasubramanian
O
Long Wait For
Justice

Judicialdelays
A majority of the inmates langui-
shing in the prisons of India are
those who are yet to be convicted.
An overview of the percentage of
the undertrials in some states of
India. Bihar heads the list.
Source: NCRB, World Prison Brief
82.6%
71.6%
80.9%
72.6%
75.9%
71.3%
84.4%
74.4%
71.4%
70.1%
The judicial remedy for those behind
bars mainly because of the inordinate
delay by the High Courts in hearing
their appeals against their conviction by
the trial courts continues to be elusive
despite periodic concern expressed by
the Supreme Court.
I
n the latest instance, the Supreme
Court bench of Chief Justice of
India Ranjan Gogoi and Justice
Surya Kant, on November 4 considered
an appeal filed by a convict, Khursheed
Ahmad, who sought early release from
prison in view of the inordinate delay by
the Allahabad High Court in hearing his
appeal against conviction and sentence
by the trial court in a case of murder.
The Allahabad High Court had re-
turned a finding in this case that the
trial court had misread the evidence on
record and convicted five of the co-
accused, who had been in jail from the
date of their conviction, that is, January
25, 2017. As the body of the deceased
was recovered at the pointing out of the
appellant, Ahmad, the High Court
denied him bail during the pendency of
his appeal. The prosecution opposed the
release of the co-accused on bail,
because they are related to Ahmad, and
therefore their participation in the
crime could not be ruled out. But the
High Court disagreed and concluded
that the five co-accused were entitled to
be released on bail. “So far as appellant
Khursheed Ahmad is concerned, with-
out expressing any opinion on the mer-
its of the case, and considering the sub-
missions advanced, ... no good ground is
made out for enlarging the appellant
Khursheed Ahmad,” the High Court
bench, comprising Justices Vivek Kumar
Singh and Ramesh Sinha, held in its
order on October 9, 2017.
The Supreme Court bench later
noted: “The appellant (Khursheed
Ahmad) is in custody for over three
years. The appeal before the Allahabad
High Court is not likely to be heard
immediately unless an order of expedi-
tious hearing is passed either by this
Court or by the High Court. No order
of expeditious hearing ought to be
passed by any court without good and
cogent grounds as the same may affect
other litigants whose appeals are simi-
larly pending.”
The Supreme Court bench continued:
“Yet, at the same time, the inability of
the High Court, for reasons beyond its
control, to bring the criminal appeal(s)
to an early conclusion should not result
in a situation where the accused persons
are to be released on bail on the afore-
said ground. All these questions would
require due consideration.”
The bench then requested Solicitor
General, Tushar Mehta to assist the
Rajender Kumar
BETTER LATE
THAN NEVER
(From left)
Mohammad
Kausar and Gulab
Khan were
acquitted in the
2008 attack on a
CRPF camp in
Rampur. But
they had already
spent 11 years
in prison

having regard to the huge pendency of
cases, including criminal appeals, before
the High Court, it would, in the normal
course, take several more years for the
disposal of the appeal.
On February 6, 2018, the Supreme
Court bench of Justices Chelameswar
Court in evolving, if possible, solutions
to the problem that the present case
confronts it with. Those who watched
the court proceedings on November 4
could not, however, avoid a sense of deja
vu and recall similar sentiments
expressed by another bench earlier.
R
amu, a prisoner, sentenced by a
trial court to imprisonment for
life for the offences of rioting
and murder in 2007, and lodged in
District Jail, Unnao, Uttar Pradesh, first
appealed against his conviction in the
Allahabad High Court. As the appeal
remained pending for a decade, he
sought bail from the High Court in the
meantime. When the High Court reject-
ed his prayer for bail, he moved the Sup-
reme Court, which too was not inclined
to interfere with the High Court order
under challenge.
However, the Supreme Court bench
of Justices J Chelameswar, Abhay Ma-
nohar Sapre and Amitava Roy, on Mar-
ch 31, 2017, directed the High Court to
decide his appeal within a period of four
months. The bench so directed because,
and Sanjay Kishan Kaul released the
petitioners in the case as they had gone
through a detention period of almost 16
years, including the remission period,
and their conduct was found to be good,
and they were working as convict offi-
cers in the jail administration.
The Supreme Court’s November 4
order refusing to direct expeditious hea-
ring in Ahmad’s case, therefore, appears
to have missed this important precedent
set by a three-judge bench earlier.
I
n 2017, the Supreme Court had also
directed the registrar general of the
Allahabad High Court to furnish
particulars of criminal appeals pending
before it year-wise with the stages there-
of, institution and disposal statistics of
the last 10 years; average disposal time
of the appeals; the identified causes for
the delay; steps already taken and in
contemplation for tackling such causes
and accelerating the disposals; mecha-
nism in place to oversee the process, and
progress recorded. The Allahabad High
Court furnished the relevant details to
the Supreme Court subsequently.
Similar direction was issued in ano-
ther matter arising from the Madhya
Pradesh High Court, which too fur-
nished similar information to the Court.
ConsideringanappealfiledbyconvictKhursheedAhmad,CJIRanjanGogoiand
JusticeSuryaKantnoted:“Theappellantisincustodyforoverthreeyears.Noorder
ofexpeditioushearingoughttobepassedbyanycourtwithoutgoodandcogent
groundsasthesamemayaffectotherlitigantswhoseappealsaresimilarlypending.”
OnFebruary6,2018,theSupremeCourtbenchofJusticesJChelameswar(left)and
SanjayKishanKaulreleasedthepetitionersinacaseastheyhadgonethrougha
detentionperiodofalmost16years,includingtheremissionperiod,theirconductwas
foundtobegood,andtheywereworkingasconvictofficersinthejailadministration.
Supreme Court/ Conclusion of Criminal Appeals

addressing the issue and ought to be
viewed as a step, if possible, to reinforce
the same in the espousal of a public
cause founded on the cherished right of
personal liberty, however, in accordance
with law.”
The bench had emphasised that not
only the custodial restraint of those de-
tained has to be sanctioned by law, any
undue and unjustified delay in the red-
ressal processes initiated by them would
have the potential of their detention
being adjudged as violative of their con-
stitutionally secured right to fair and
speedy justice.
T
he Allahabad High Court’s reply
to the Supreme Court in Ramu’s
case revealed that as many as 14
criminal appeals filed nearly 40 years
ago were still pending disposal. Of
these, two were filed in 1976, four in
1977 and eight in 1978. More than
13,600 criminal appeals were reportedly
pending for more than 30 years in vari-
ous High Courts.
The Allahabad High Court has,
reportedly, told the Supreme Court that
On April 12 this year, while hearing
the case of Ratan Singh vs State of
Madhya Pradesh, the Supreme Court
bench of Justices Uday Umesh Lalit and
Indu Malhotra noted that statistical
data made available by the High Courts
of Allahabad and Madhya Pradesh not
only needed to be revised but similar
data in respect of all the High Courts in
the country must also be made available
before any concrete recommendations
or suggestions could be made in these
PIL matters. The bench, therefore,
directed the registrar-generals of all the
High Courts in the country to furnish
information on the same parameters.
“List these matters for further consider-
ation on 09.07.2019”, the bench directed
in its order. But the matter was not
taken up on July 9 or on July 16, when it
was adjourned. The case is now likely to
be heard by Justices Lalit and Vineet
Saran on December 13.
W
hile the order of the Lalit-
Malhotra bench expanding
the ambit of the case to
include all the High Courts in the coun-
try to get an exact picture of pendency
of criminal appeals deserves apprecia-
tion, it appears that the original objec-
tive of a pilot study, initiated by the
Justice Chelameswar-led bench in 2017,
was apparently lost in the subsequent
hearings of the case. What indeed were
the suggestions rendered by MN Rao,
senior advocate, appointed as amicus
curiae in this case on January 5, last
year, and why the Lalit-Malhotra bench
found them inadequate, is unclear.
The Chelameswar-led bench had ob-
served in its order in 2017: “The choice
of the High Court, we may clarify, is
only in view of the extent of pendency
and the frequently expressed concern
over the relatively longer disposal time
in the adjudication of the criminal app-
eals before it, which as well is noticeable
from the contemporaneous records. We
wish to state that the selection of the
High Court by no means is an indication
of any deficiency in the functioning or
the ongoing endeavours on its part in
one of the main reasons for delay is the
almost 50 percent vacancy in judges’
posts as the High Court has only 84
judges, as against the sanctioned
strength of 160. According to the High
Court, the average disposal time of an
appeal is about 11.39 years. The High
Court has attributed to its lack of suffi-
cient number of skilled employees its
failure to utilise e-courts and technology
to expedite hearing of cases.
However, a study by the NGO,
Daksh, has revealed that between 45
and 55 percent of the court time is spent
on non-substantive issues, such as re-
issuing summons, fixing dates for future
hearings, and similar case administra-
tion decisions.
Delegating these functions to an
administrative officer would give every
judge nearly double the time each day
for dealing with substantive matters,
and could significantly improve day-to-
day efficiency, it has suggested.
WhiletheorderoftheJusticesUdayUmeshLalit-InduMalhotrabenchtogetan
exactpictureofpendencyofcriminalappealsdeservesappreciation,itappears
thattheoriginalobjectiveofapilotstudy,initiatedbytheJusticeChelameswar-
ledbenchin2017,wasapparentlylostinthesubsequenthearingsofthecase.

Supreme Court/ Sewerage Charge in Delhi
N May 2015, the National Green
Tribunal (NGT) issued an order
directing the authorities to charge
every household in Delhi an envi-
ronmental compensation amount
for generating sewage, based on the
polluter pays principle. This was irre-
spective of a household being connected
to the sewerage system or not.
A fine of `5,000 was to be charged if
individuals or municipal corporations
were caught dumping sewage in the
drains or the Yamuna. Also banned were
illegal or unauthorised washing, slaugh-
tering and running of dairies.
However, the impact of the order has
been limited due to various reasons, not
the least being judicial interventions.
That the enforcement of the order itself
was not mandatory is another major
drawback. Thus, for more than four
years, the NGT’s orders, given in 2015,
went largely ignored.
However, on October 24, 2019, the
Supreme Court upheld the NGT’s Sep-
tember 2019 order issued to the Delhi
government asking it to start levying
sewerage charges on all households in
the capital within two months. Invoking
the polluter pays principle concept, the
green court asked the Delhi government
and its departments to include a sewer-
age charge for households which gener-
ate sewerage. The order was part of the
Tribunal’s initiatives aimed at reducing
pollution in the Yamuna and protecting
its biodiversity.
The NGT also warned the enforcing
authorities that stiff fines would be
imposed if the order was not followed.
The Tribunal also gave an action plan to
Pollute? Pay Up
TheNGT’sinitiativestocleanuptheYamunagetafillipfromtheapexcourtwhichupholdsthe
greentribunal’sorderaskingtheDelhigovernmenttolevyseweragechargesonallhouseholds
By Papia Samajdar
I
NO PROPER DRAINAGE
A sewerage line being repaired in Delhi. Many
houses are not linked to the sewer network
nizamuddinrenewal.org

control pollution levels in the river.
Environmentalists applauded the
decision and said people should be
made to pay for sewage they generate so
that it can be treated. As untreated se-
wage ends up in the Yamuna, the river
remains polluted. Manoj Misra, conve-
nor of Yamuna Jiye Abhiyan, said, “The
government must ensure that wherever
there is 100 percent coverage, house-
holds take legal sewer connections.
Those who do not comply must be
penalised heavily.” “A slew of actions
need to be taken to clean the Yamuna.
We need to change the art of pollution
control,” said Sushmita Sengupta, prog-
ramme manager at Centre for Science
and Environment, a Delhi-based NGO
working on water issues.
T
he city’s apathy towards proper
waste disposal is something Del-
hiites deal with on a daily basis.
“Dumping of solid waste in the river
even during the day is fairly common,”
said Gaurav Kumar, a senior executive
at a software firm. “On my weekly trips
to Noida, it is a common sight to see
people dumping waste in the river,
including plastic bags and other stuff,”
he added. “People dump flowers and
other puja materials fairly routinely,”
said Rajan Banerjee, a resident of Noida
who works in Delhi.
According to the NGT order, dump-
ing of debris can invite a fine of upto
`50,000. Encroachment and illegal con-
struction on the banks of the river are
also prohibited. Illegal dumping is hard
to check and hence no fines are levied
though matters are expected to improve
once the monitoring set up on the flood
plains is completed. The DDA has been
able to do little about illegal construc-
tion and dumping of debris and puja
materials into the river. As per the
recent report from the agency, most of
the challans issued are for illegal park-
ing and not for dumping activities.
But things should get better accord-
ing to the responses filed before the Mo-
nitoring Committee (MC) set up by the
Tribunal following the 2015 order. The
DDA has finished installing CCTV cam-
eras in nine locations and installation of
another 102 CCTVs at 34 identified lo-
cations has been initiated. A lot of work,
however, has been held up as authorities
like the Railways, National Highways
Authority of India, Gas Authority of
India Ltd and Uttar Pradesh Irrigation
Department, who own the land on
which the monitors are to be installed,
have not given permission to carry out
the CCTV work.
The DDA has also detailed before the
MC the technical hitches that came in
the way of imposing the Environmental
Compensation (EC) fee. The charge was
to be levied on the residents as part of
their electricity bills, water bills and pro-
perty taxes. However, following the NGT
order, an electricity distributor licensee
opposed it in the Supreme Court (2015),
resulting in the stay of the order. Citing
the Delhi Electricity Reforms Act, 2000,
and Electricity Act, 2003, the Delhi
Electricity Regulatory Commission
(DERC) claimed that imposing an addi-
tional tariff burden on consumers for
costs incurred towards collection of the
EC fee would be in violation of the Acts.
This is one of the reasons why the EC is
yet to be charged, even after four years
of the NGT order.
Charging EC fee as part of the water
bill also presented problems as in Delhi,
the government’s sop of free water up to
20,000 litres per month meant that the
sewage charge was subsumed in the
water subsidy. Yet another problem, as
reported by the Delhi Jal Board, is that
though the sewer network in the capital
has increased significantly, the number
of houses connected to it is still very low.
For example, even though entire East
Delhi has a sewer network, only 60 per-
cent of the houses are connected to it.
And there are no policies or regulations
in place to ensure that all houses are
connected to the network.
With the Supreme Court now enter-
ing the fray, the NGT order directing the
Delhi government and the concerned
agencies to introduce the sewerage levy
within the next two months is expected
to be taken seriously with the action
plan being properly followed.
AccordingtotheNGTorder,dumping
ofdebrisintheYamunacaninviteafine
ofupto`50,000.Illegaldumpingis
hardtocheck,hencenofinesarelevied.
TheDDAhasdonelittletostopit.
UNI

Spotlight/ Jammu & Kashmir Lawyers’ Strike
ESPITE its abrogation,
Article 370 of the
Constitution continues to
haunt Jammu and Kashmir
as it undergoes unprece-
dented transition from a
full-fledged state to a Union Territory
beginning October 31. The nuts and
bolts of the new administrative dispen-
sation are being tightened to bring it
on a par with the rest of the country in
the name of one nation, one constitu-
tion. There are teething problems, and
at least one of these, the registration of
immovable property, assumed a serious
dimension on the first day after the
birth of the new UT; it has affected the
UT of Ladakh as well which is the
other administrative entity of the bifur-
cated state.
Like elsewhere in the country, the
government has transferred powers
regarding land registration in the UT of
J&K from the judiciary to the executive.
This has angered the lawyers’ communi-
ty in the Jammu region which has been
on strike since November 1, demanding
the restoration of status quo. At the
same time, lawyers are opposing the
proposed—actually nearly-finalised—
JudicialLogjam
WithJammu&KashmirbecomingaUnionTerritory,teethingproblemsareevident.Onthe
firstday,theCentretransferredpowersforlandregistrationfromthejudiciarytothe
executive,angeringthepowerfullawyers’communityinJammuwhichhasgoneonstrike.
Otherissueshavealsoupsetthelegalcommunity.
By Pushp Saraf
D
UNIBIFURCATION WOES Following abrogation of Article 370, lawyers in Jammu have launched an indefinite strike

have not gone beyond one day’s token
strike as surprisingly, inquiries reveal,
they are said to have got some sort of
assurance that a way out would be
found to meet their grievances.
The present controversy is the out-
come of the abrogation for all practical
purposes of Article 370. As a result, the
J&K Registration Act, under which the
judiciary enjoyed primacy in registration
matters, has become redundant, giving
way to the Central Registration Act,
1908 (both Acts are identical, except
that under the now-defunct J&K law the
practice of the judiciary carrying out the
registration of deeds instituted by
Maharaja Hari Singh in 1921 under the
relevant law, was continued. A bid by
the government to withdraw the judici-
ary from the arena in 2011 was foiled by
the Jammu lawyers resorting to a strike
and mustering support from the Kas-
hmir Valley as well).
N
o lawyer is mentioning Article
370 in the context of the ch-
ange of authority. It has not
been debated in the general house eit-
her. Yet, it has become an issue because
of the manner in which it has been vig-
orously defended in the official release
of the JKHCBAJ while announcing the
collective decision to go on strike. Incid-
entally, Abhinav Sharma, president of
the association, is also a spokesperson of
the state BJP.
According to the release: “The J&K
High Court Bar Association, Jammu,
made it clear that both the aforesaid
demands have nothing to do with the
revocation and abrogation of Article 370
of the Constitution of India, as the shift-
ing of the High Court complex has noth-
ing to do with Article 370, and the pro-
posal was moved before the revocation
of Article 370, whereas the decision of
the government to divest the powers of
the registration of documents from judi-
cial officers and conferring the same
upon the revenue authorities has also
nothing to do with the revocation of
Article 370.”
This has invited a sharp retort from
BS Salathia, a senior advocate and
three-time president of the bar associa-
tion in the past who is a popular figure
in J&K and was present at the general
house meeting in support of both the
demands. He questioned the reasons for
referring to Article 370 in the release
when there was no discussion on sup-
port or opposition to it. He suspects
mischief in it: “There was no discussion
or resolve of the members either to sup-
port or oppose the revocation of Article
370 of the Constitution of India, but it
mischievously finds mention in the offi-
cial press release—with whose approval
and why? In my humble understanding,
it is a gameplan to please the political
bosses and use us for their own vested
political interests—not in good taste.
Please, be kind to us, as our elected le-
aders, we shall make every possible sac-
rifice to achieve the goal and uphold the
prestige/glory of the Association. Read
the relevant portion. Can any member
present in the meeting justify (it)?”
Talking to India Legal, Salathia said
there was no discussion at all in the
meeting and not even the member
(senior lawyer HC Jalmeria) who had
initiated the process for requisitioning it
was called upon to speak. “Sensing the
mood of the members the president uni-
laterally announced the decision to
shifting of the High Court premises by
constructing a new complex in a forest
reserve described as the “only lung” of
historical Jammu city.
The powerful Jammu-based Jammu
and Kashmir High Court Bar Asso-
ciation (JKHCBAJ) has taken the deci-
sion to “abstain from work” for an
“indefinite period” at a requisitioned
general house meeting which took “seri-
ous note of both the issues” and unani-
mously criticised the government’s
moves as being “neither in public inter-
est nor in the interest of advocates”.
J&K’s new incarnation is thus mar-
ked by lawyers stopping work all over.
Advocates in the Kashmir Valley, the
other major constituent of the UT, have
been staying away from courts in protest
against the detention of the Srinagar-
based J&K High Court Bar Association
president, Mian Abdul Qayum, and
other lawyers, along with several main-
stream and separatist leaders on the eve
of August 5, when the Union gover-
nment reduced Article 370 that had till
then protected the state’s special status
to just a museum piece and bifurcated
J&K into two UTs.
Incidentally, the lawyers in the UT of
Ladakh, comprising Leh and Kargil dis-
tricts, too are agitated over losing their
role in land registration. However, they
“Therewasnodiscussionor
resolveofthemembers
eithertosupportoroppose
therevocationofArticle370
oftheConstitutionofIndia,
butitmischievouslyfinds
mentionintheofficialpress
release—withwhose
approvalandwhy?”
—BSSalathia,senior
advocateandthree-timepre-
sidentofthebarassociation

Inatelevisiondebate,AbhinavSharma
saidthoughhehaddualresponsibilities,
asbarassociationchiefand
theBJPspokesman,forhimthelawyers’
interestsreignedsupreme.
observe an indefinite strike,” he stated.
When contacted, Jalmeria said that 518
members were signatories to the requi-
sition move underlining their concern
about the issues.
The battle has spilled over to the
social media with those backing the rev-
ocation of Article 370 defending the
release as a “very sincere move” even
while conceding that there was no dis-
cussion on it in the meeting.
In a television debate, Sharma said
though he had dual responsibilities, as
bar association chief and the BJP
spokesman, for him the lawyers’ inter-
ests reigned supreme.
S
alathia and Sharma agreed on at
least one point, that the transfer of
power to the executive would
deprive a large number of lawyers of
their livelihood given the already limited
work opportunities available to them in
Jammu. The former said that about
3,000 lawyers would be rendered job-
less all over the UT if the original prac-
tice was not restored.
According to him the government
would have been careful had its atten-
tion been drawn to two facts: (1) a divi-
sion bench consisting of then Chief
Justice N Paul Vasanthakumar and
Justice Bansi Lal Bhat had on February
16, 2016, quashed a government order
transferring forest land for non-forestry
purposes, observing that it was “fraught
with serious consequences to ecology
and environment besides resulting in
irreversible damage to the eco-system,
health of the local populace and flora
and fauna,” and (2) a three-judge bench
comprising Justices Virender Singh, JP
Singh and Hasnain Massoodi had on
December 23, 2011, stayed the transfer
of registration work to the executive fol-
lowing a three-week strike by lawyers.
Both the lawyers also share the view
that since the government had the
option under the central Act to appoint
an authority of its choice it could have
persisted with the earlier arrangement.
Unmindful, however, the government
seems to be going ahead with its new
plans. Quick clearances have been given
for construction of the new High Court
complex in Raika and Bahu villages of
Jammu district—it is a forested area.
Moreover, the revenue department has
mounted a publicity campaign explain-
ing the “advantages of a separate depart-
ment of registration” like making “the
process similar to the rest of the coun-
try”, “substantial reduction in waiting
time for public”, “all work under single
roof”, “no payment of court fee in addi-
tion to stamp duty” and enhanced trans-
parency and accountability.
Pawan Kotwal, financial commis-
sioner, revenue, has been made inspe-
ctor general of registration in addition
to his own duties.
Other functionaries are being
appointed. The question at the time of
writing is: who will blink first—lawyers
or the government? Clearly Article 370
has not died in J&K.
STICKY ISSUES
The Jammu and Kashmir HC. The proposed
shifting of the HC has raised a storm
Spotlight/ Jammu & Kashmir Lawyers’ Strike

My Space/ New Education Policy Shiv Visvananthan
HE idea of examination
reform is a strange, almost
oxymoronic phenomena.
Yet it is sociologically fasci-
nating to study as it reveals
a lot about what we think
about knowledge and how we handle
change. Consider the recent announce-
ment that the new National Education
Policy (NEP) promises that a candidate
may take a board exam twice in a year.
The news also proclaims that this is
meant to eliminate exam stress for both
students and parents, especially the
“high stakes sense of pressure”. The
reform also promises to remove the pro-
crustean straitjacket around the choice
of subjects, allowing students combina-
tions of their choice. The emphasis
seems to be on flexibility and variation—
flexibility in terms of time and variation
in the choice of subjects. The reform
does not appear to be systematic but
more an attempt to provide relief.
How does one look at such an ann-
ouncement which affects a huge popula-
tion? One realises that reforms are in-
troduced nowadays in a blaze of publici-
ty. It is like reworking a brand, where
every minor change is read as history,
touted as a transformation and quietly
forgotten a fortnight later. In fact, most
reforms are acts of clerical and technical
tweaking, which policy presents as a
miracle of change. This is true not for
exams alone but for urban planning,
agriculture and educational change. One
could read it as a desperate attempt to
offer relief or as a palliative or one has
to locate this move within a philosophy
of knowledge and change.
Exams are read as a variant of gym-
nastics or mental athletics which a stu-
dent must indulge in regularly. The idea
is not to question the exam system but
to produce phenotypical variations
which make exams feel different. The
ASpectreCalledExams
Thoughitlooksliberal,thenewpolicyiscounterproductiveandnottransformative.Educationhasto
beunderstoodecologicallyinorderforchangetobetrulymeaningful
T
COSMETIC MOVE
The new NEP promises that candidates may
take board exams twice in a year.
UNI

NEW IDEAS
HRD Minister Ramesh Pokhriyal Nishank at a
workshop on the national education policy
tends flexibility and freedom by provid-
ing a few coatings of grey.
The second part of the reform prom-
ises a variation in the choice of subjects.
But such a change does not alter the
procrustean classifications of knowl-
edge—science, social science, commerce
and humanities—that a student must
opt for. Does variation mean we are
entering a multi-disciplinary or holistic
era? The education policy is intriguing
in details but it does not add up. It is a
report where the whole is less than the
sum of the parts, some of which look
promising, only to disappoint when
pieced together later.
An examination system has to be
looked at from different angles. It is an
organisational system, a psychological
system, an epistemic system about
knowledge and it also has a double.
Informal economics of the exam system
mimic the official. The dynamics of the
double determine the clarity of reform.
One has to take this seriously. The cen-
tre of gravity of the examination system
as a model has shifted to the tutorial
college. Whether Kota or Rau’s Study
Circle, these groups immortalise the
kunji. They create a fetishism about
exams which affects folk consciousness.
The NEP cannot reform the exam sys-
tem without challenging the folklore
and ideals of the informal economy of
exams. In many ways, it is the tutorial
college that determines the digestibility
of the exam system and official commit-
tees are pale imitations of such a system.
Thomas Kuhn, the great historian of
science, showed that textbooks of sci-
ence are merely correct, not true. They
are acceptable as a consensus of current
knowledge. A textbook, in that sense, re-
presents a false consciousness. It gives
you a misleading idea of the state of
knowledge, leaving no place for doubts,
silence, quarrels, controversies and am-
biguities. An exam too is a map of false
consciousness. It tests you for the cer-
tainties of knowledge, not for the ecolo-
gies of doubt, the tacit knowledge of a
craft. Exams lack a developed theory of
epistemology or pedagogy. They are
more a bureaucratic process of certifica-
tion which threatens the essence of
the academic.
The NEP in its attitude to examina-
tion reforms emphasises timetable and
choice within a current collage of sub-
jects. Seasonal variations in timetables
add little to flexibility. The spectre of the
exam keeps haunting most people. The
question of choice and variation is limit-
ed. The bundles are restricted. There is
a lack of imagination and a desperation
for change which forms a drastic cock-
tail of reform.
Sadly, the NEP does not really con-
front the spectre haunting India today—
the spectre of exams. Exams have trau-
matised generations and people carry
their scorecards like scars which cannot
be forgotten. The competitive mentality
and conformity of market and bureau-
cracy is inculcated early in a child, des-
troying the playfulness of childhood.
Massaging the process of exams does lit-
tle to change the system.
Reforms like NEP while looking lib-
eral are eventually counterproductive.
One wishes for a different examination
system. A sense of a rite of passage
which is truly transformative is missing
in the bureaucratic grids of the exam as
a system. The tragedy begins there. In
tinkering with time, the NEP shows that
it understands little of time in educa-
tion. Education has to be understood
ecologically rather than monadically in
order for change to be meaningful. NEP
has failed the test of reform.
—The writer is a member of the
Compost Heap, a commons of ideas
exploring alternative imaginations
trauma of the exam is partially human-
ised, yet competition does not cease nor
does the standardisation. Exams remain
an information war of predictable ans-
wers. As an American science commen-
tator put it, education “empties a stu-
dent’s head, fills it with knowledge and
then uses exams to measure it”. The stu-
dent is induced to think more and more
of knowledge in converging terms. It is
the ultimate catechism. The questions
are standard, the answers sacrosanct,
only you get a bit of flexibility in organ-
izing yourself for it.
T
he reform does not challenge, ev-
en question the mentality exams
create. In a managerial sense, it is
like creation, a Taylorism of assembly
line knowledge, and then seeking to hu-
manise it with a few human relations
palliatives. The gargantuan inevitability
of the exam system now looks even mo-
re blatant. There is no real freedom or
choice. One is reminded of Henry Ford’s
dictum: “Any customer can have a car
painted any colour that he wants, as
long as it is black.” The new NEP ex-
ThenewNEP,whilelookingliberal,is
eventuallycounterproductive.Itextends
flexibilityandfreedombyprovidingafew
coatingsofgrey.Thepolicydoesnoteven
questionthementalityexamscreate.

Column/ Parliamentary Institutions Vivek K Agnihotri
N October 29, 2019,
Vice-president M Venkaiah
Naidu gave a clarion call
for parliamentary reforms
and laid out a 16-point
agenda as the way forward.
While delivering the first Arun Jaitley
Memorial Lecture organised by Delhi
University, he said the malaise plaguing
Indian parliamentary democracy was
well known. These symptoms can be
seen in the reduced number of sittings
of legislatures over the years, persistent
disruptions, declining quality of debates,
growing number of legislators with cri-
minal records, high degree of absentee-
ism, inadequate representation of wo-
men, rising money and muscle power in
Reforms: Need of the Hour
Vice-presidentMVenkaiahNaidu’s16-pointprogrammeto
reformtheseinstitutionswillgoalongwayinrestoringthe
trustpeoplereposedinthem
O
“However good a Constitution
may be, it is sure to turn out
bad because those who are
called to work it happen to be
a bad lot. However bad a
Constitution may be, it may
turn out to be good if those
who are called to work it,
happen to be a good lot.”
—Dr BR Ambedkar
1. Both pre- and post-Legislative Im-
pact Assessment to be ensured for
quality and there should be informed
law-making for creating wider aware-
ness about the targeted outcomes by
bringing out social, economic, environ-
mental and administrative impacts
besides the involvement of all stake-
holders.
2. Ensuring effective functioning of dep-
artment-related Standing Committees of
Parliament through longer tenures ins-
tead of reconstitution every year as at
present. Promote specialisation by
nomination on the committees based
on academic backgrounds and renomi-
nation on the same committees for a
longer period.
3. Take forward the legislation in Parlia-
VenkaiahNaidu’s
16-pointplan
DRAWING ATTENTION
Vice-president M Venkaiah Naidu
delivering the Arun Jaitley Memorial
Lecture at Delhi University
PIB

elections and lack of inner democracy in
the functioning of political parties.
Elaborating, he stated: “Members of
Parliament are supposed to discharge
their responsibilities with dignity, dili-
gence and discipline. Frequent disrup-
tions, Points of Order without a point,
adjournment motions and interruptions
betray political immaturity, exhibition-
ism, excessive fondness for the limelight
and inadequate appreciation of the need
to utilise the opportunity of serving pub-
lic interest.”
I
n order to rectify the situation, Ven-
kaiah Naidu asserted that MPs need
to have clarity regarding their role
and functions. Apart from reorientation
of MPs, there is a pressing need for par-
liamentary reforms to restore the trust
of the people in these institutions. For
this purpose, the 16-point programme
adumbrated by him inter alia advocates
prescribing a minimum number of sit-
tings for both Parliament and state leg-
islatures, evolving and enforcing a code
of conduct for MPs, automatic suspen-
sion of the erring members, a roster sys-
tem for ensuring attendance of at least
50 percent of the members of various
political parties every day, longer tenure
for department-related Parliamentary
Standing Committees, review of the
functioning of the anti-defection law
and the “whip system”, effective action
against legislators for non-ethical con-
duct, building a consensus for holding
simultaneous elections to Parliament
and state legislatures and Legislative
Impact Assessment. All the stakeholders
owe it to the people of the country to
ensure better functioning of parliamen-
tary institutions.
Each of the 16 points deserves to be
dealt with at length. However, some of
these suggestions have been discussed
and debated in various fora from time to
time. Thus, for example, with regard to
increasing the number of sittings of leg-
islative bodies, the National Commi-
ssion to Review the Working of the Con-
stitution (2002) in its report had recom-
mended that the minimum number of
days for sittings of the Rajya Sabha and
the Lok Sabha should be fixed at 100
and 120 days, respectively. A Private
Member’s Bill was introduced in the
Rajya Sabha in 2008 to prescribe a min-
imum number of sittings per year for
legislative bodies (120 days for Parlia-
ment and 60 days for state legislatures)
by amending Articles 85 and 174 of the
Constitution. As a matter of fact, as is
the practice in several parliaments ac-
ross the world, the Indian Parliament
could be continuously in session during
the tenure of the Lok Sabha by doing
away with the routine of summoning
and prorogation of the budget, monsoon
and winter sessions, with an annual
break, if at all.
The issue of evolving and enforcing a
code of conduct for MPs too has been
discussed and debated ad infinitum. In
annual conferences of presiding officers
of Parliament and state legislators,
spread over more than 25 years, this
NaidusaidthemalaiseplaguingIndian
parliamentarydemocracywaswell
knownandshowedconcernover
attendanceofMPs,qualityofdebates
andfrequentdisruptionofHouses.
ment for reservation of women where their
representation is only about 13 percent.
4. A minimum number of sittings for both
the Parliament and state legislatures per
year to be appropriately prescribed and
compliance ensured.
5. Law-makers should abide by the rules
of the House and political parties to take
responsibility by evolving and enforcing a
code of conduct.
6. Making rules that automatically take
effect against erring members in case of
interruptions and disruptions.
7. Political parties to evolve a roster sys-
tem for ensuring attendance of at least 50
percent of their members in the legisla-
tures all through the proceedings of the
House every day to address the issue of
lack of quorum.
8. Secretariats of legislatures to publish
regular reports on the attendance of
members inside during the proceedings
and the extent of their participation in the
terms of the questions raised, debates
participated in, etc.
9. Legislature parties to ensure that new
entrants and back benchers are given
adequate opportunities to participate in
debates instead of fielding only a select
and established few.
10. Evolve a new political consciousness
to see that tickets are not given by politi-
cal parties to those with just a winnability
factor but their criminal backgrounds are
also factored in.
11. Review the functioning of the anti-
defection law to address grey areas like
incentivising members who resort to activ-
ities that invite expulsion from the parties
besides stipulating specific time-frames
for deciding on defection matters by the
presiding officers of legislatures.
12. To review the functioning of the whip
system which is alleged to be stifling even
reasonable dissent from the party position
even on non-consequential matters. Also,
rationalise the norms for issuing a whip to
enable some degree of freedom of expre-
ssion without adversely affecting stability
of the government.
13. Set up special courts/tribunals for
time-bound adjudication on criminal com-
plaints against legislators and election-
related matters.
14. Timely and effective action against
legislators for non-ethical conduct.
15. Governments to be responsive to the
views and concerns of the Opposition
and the Opposition to be responsible and
constructive while resorting to the avail-
able parliamentary instruments like ad-
journment motions and during participa-
tion in the debates. Both sides to avoid a
cynical and adversarial position just for
the sake of it.
16. Consensus to be built on the propos-
al of simultaneous elections so that gover-
nance is not adversely impacted on
account of staggered and continuous
polls across the country and also to
address the problem of rising money
power in elections.

subject has been discussed and debated
with increasing concern. On the occa-
sion of the Golden Jubilee of Indepen-
dence, a resolution was adopted unani-
mously on September 1, 1997, in both
the Houses whereby the members com-
mitted themselves to desisting from dis-
turbing the proceedings there. However,
even if a code of conduct is put in place,
what is the guarantee that the members
will abide by it?
As regards automatic suspension of
the erring members, Rule 374A of the
Rules of Procedure and Conduct of
Business in the Lok Sabha provides for
this for five consecutive sittings of the
House if the member comes into the
well or persistently and wilfully obs-
tructs business by shouting slogans or
otherwise. But it has been sparingly
resorted to.
C
oming to action against legisla-
tors with a criminal record, the
judiciary has already shown the
way. Those convicted of heinous crimes
like murder, rape and kidnapping are
barred from contesting elections. Dis-
posing of a PIL requesting debarment of
persons with criminal antecedents from
contesting elections, the Supreme Court
in a judgment on September 25, 2018,
in Public Interest Foundation & Ors
Versus Union of India & Anr made the
following observation: “The country
feels agonized when money and muscle
power become the supreme power.
Substantial efforts have to be undertak-
en to cleanse the polluted stream of
politics by prohibiting people with crim-
inal antecedents so that they do not
even conceive of the idea of entering
into politics.”
A couple of years ago, a two-judge
bench of the Supreme Court had asked
the government to set up 12 special
courts across 11 states and Delhi to deal
with cases related to elected representa-
tives. The Supreme Court has also made
it mandatory for both candidates and
their parties to publish full details of
criminal charges against the candidate
in newspapers and the electronic media
at least three times after the nomination
had been filed. The Court said that
“self-publicity” would help in reducing
the number of policymakers with a
criminal record. As to whether lawmak-
ers facing criminal charges should be
debarred from contesting elections or be
disqualified only after conviction, the
apex court left it to Parliament to enact
a law.
In order to improve the quality of
debate, in addition to promoting spe-
cialisation among the members by in-
creasing their tenure in department-re-
lated Standing Committees, they need to
be provided assistance by qualified and
proficient experts as is the case in sever-
al countries. Political parties should ass-
ign duties to their members based on
their professional experience, as far
as possible.
As regards the suggestion to review
the “whip system” and the anti-defection
law, it needs to be modulated carefully.
Removing the disqualification attached
to voting in violation of the whip, under
the anti-defection law (Tenth Schedule
of the Constitution) would, of course,
lead to more open debate. But one has
also to steer clear of the kind of confu-
sion witnessed in the UK Parliament on
account of the open voting system with
reference to the Brexit deal.
Regarding adequate representation
of women, a Constitutional Amendment
Bill was introduced in the Rajya Sabha
in 2008 to reserve one-third of all seats
for women in the Lok Sabha and state
legislative assemblies. But this could not
pass muster in the Lok Sabha. And as
for simultaneous elections to the Parlia-
ment and state assemblies, that is the
flavour of the day.
The way forward is serious introspec-
tion by political parties and their legisla-
tors, coupled with a strong will to be the
change they want to see in society at lar-
ge, with an occasional nudge from the
judiciary.
—The writer is a former Secretary-
General, Rajya Sabha
Column/ Parliamentary Institutions / Vivek K Agnihotri
AConstitutionalAmendmentBillwas
introducedintheRajyaSabhatoreserve
one-thirdofseatsforwomenintheLok
Sabhaandlegislativeassemblies.Butit
couldnotpassmusterintheLokSabha.
UNI

R
esentment is rife within the
members of the Press Council
of India (PCI) against the func-
tioning—and stonewalling—of its
chairman, Justice CK Prasad
(above). The key issue is the manner
in which he has stalled efforts to
send a fact-finding team to J&K. The
decision to send a PCI team was
taken shortly after the abrogation of
Article 370 and the communication
freeze and media restrictions.
Three months later, there has
been no movement on the proposal,
all allegedly thanks to Prasad’s
stonewalling. “It is shameful that the
team has still not been allowed to
go,” Jaishankar Gupta, a PCI mem-
ber and senior journalist, told The
Wire, adding that three attempts were
made, all aborted.
The PCI regularly sends fact-find-
ing teams to areas where press free-
dom is threatened or journalists are
under threat. PCI chairman Prasad
was recently in the centre of a politi-
cal storm when he supported the
ban on the media and said it was “in
the interest of the integrity and sover-
eignty of the nation”. However, that
position was later reversed after
members revolted.
Media Watch
Past Times
T
he Indian media has lost one of its
standard bearers. Gautam Adhikari,
who passed away last week, may
have been based in Washington, but his
heart was very much in India. A former Exe-
cutive Editor of The Times of India and
founding editor of DNA, he wrote occasion-
ally in The Times of India’s op-ed pages but
wore other hats, including a stint working
for the World Bank as a Senior Consultant
and was subsequently Senior Fellow at the
Center for American Progress in Wash-
ington. He was also Dean of the Times
School of Journalism and an author (The
Intolerant Indian: Why We Must Rediscover a
Liberal Space and Rolling Stones:
Selected Writings). Gautam
will be missed by his many
friends and ex-colleagues in
India for his grasp of world
affairs, and his gifts as
a raconteur and bon
vivant. RIP.
Passing On
Pressing Matters
A
nil Ambani, the
beleaguered
brother of India’s
richest man, Mukesh
Ambani, is trigger-ha-
ppy when it comes to
filing court cases
against media
reports that paint
him and his com-
panies in bad
light. He filed a
slew of defamation
cases against
Indian media
outlets for
their reports
on his involvement in
the Rafale deal but now
seems to have decided
that discretion is the
better part of valour.
Last week, his tele-
com arm, Reliance Co-
mmunications (RCom)
dropped a defamation
lawsuit against the
London-based Financial
Times. He had sued
two of the newspa-
per’s journalists
over reporting the
difficulties that his
businesses
had been
facing.
Ambani’s
case had
demanded $1.1 billion
in damages. Similarly,
his lawsuits against
Indian media firms had
demanded equally out-
rageous amounts as
compensation—NDTV
was sued for `10,000
crore, National Herald
was sued for `5,000
crore, and he demand-
ed `6,000 crore in dam-
ages from The Wire.
Other cases were
filed against The
Financial Express, The
Week and The Econo-
mic Times. However,
Ambani later withdrew
the suit against National
Herald.
Withdrawal
Symptoms
T
he Times Group has announced a
curious change in its editorial app-
roach to past events and important
anniversaries. In similar edits, The Times of
India and its pink sister The Economic
Times announced a major departure from
past policy. It said: “A question we are
often confronted with is: How should we as
a paper approach the past, especially his-
torical events and personalities? Anniver-
saries, in particular, tend to produce a
flood of editorial content looking back,
chock-a-block with dates and places.” It
went on to say that technology has disrupt-
ed everything and that endless reams of
newsprint devoted to the past don’t neces-
sarily add to the reader’s understanding,
adding: “It is this philosophy that will
increasingly drive our editorial planning
every day, even on the anniversaries of his-
tory’s great and good.”
So readers of The Times publications
can forget a repeat of the multiple pages
on Mahatma Gandhi as was the case this
year on his 150th birth anniversary.

Environment/ Air Pollution in Delhi
N October 28, 2019, the
morning following Diwali,
PM 2.5 levels in Delhi-
NCR breached the upper-
most level of all existing
measuring scales. If you
were in Delhi-NCR in the week of Octo-
ber 28 to November 4, you were inhal-
ing smoke from the equivalent of 44-55
cigarettes every day. Delhi is notorious
for its reputation of turning into a gas
chamber every year around this time, as
pollution spikes to alarming levels.
How is it that the collective govern-
ments of Delhi, the NCR states and the
central government are unable to tackle
this crisis year after year? The crisis was
so serious that the Supreme Court called
for an emergency meeting on November
4, after PM 2.5 levels refused
to come down from severe-
plus levels in 114 hours. “We
are at a loss to understand
why we are not able to
create a situation in which
this kind of pollution does
not take place, that too in
a routine manner every
year,” questioned the
bench, headed by Justices
Arun Mishra and Deepak
Gupta.
The Supreme Court
called the inaction of state governments
and the government and agencies of
Delhi a “blatant violation” of the right to
life of a sizeable population. The bench,
in its order, stated that the governments
of Delhi and the NCR states and agen-
cies have disregarded the orders of this
court and other courts. The bench
attempted to fix the accountability for
the states’ failure to curb farm residue-
burning that contributes heavily to this
emergency. Stating that the situation is
destroying the right to life in gross viola-
tion of Article 21 of the Constitution of
India, the Court threatened to charge
the entire administration, including the
police staff, collectors, panchayats, chief
secretary as well as those doing it, in
case of any stubble burning incidents.
Appalled at the air quality levels and
the failure to manage the escalating PM
levels, the Supreme Court bench sum-
moned the chief secretaries of three
states—Punjab, Haryana and Delhi—to
be present before the court on Novem-
ber 6. The Court further asked for an
explanation from the officials of Punjab,
Haryana and Uttar Pradesh why they
should not be fined for their inability to
stop the stubble burning that’s threaten-
ing the health of millions of people. The
Court went a step further by ordering
the sarpanches and police authorities to
prepare a list of incumbents who burnt
stubble on their farms.
Due to a favourable wind speed and
the late monsoon, Delhi had a reason-
ably pollution-free September and most
of October. As the wind speed dropped
and the farm fires in neighbouring
Punjab, Haryana and Uttar Pradesh
started, Delhi began to choke. By
Every Breath
You Take
Delhianditsadjoiningareasarefacinganunprecedentedcrisis
aspollutionlevelsspikedtodangerouslevelsfordaystogether,
forcingtheSupremeCourttointerveneandsummonofficials
fromthreestates.Isthereawayout?
By Papia Samajdar
NOXIOUS AIR
Haze near India Gate that poses
a major health risk
O

October 26, 7 pm, the PM 2.5 levels
across Delhi ranged between 316-348,
already in the poor category. The combi-
nation of low wind speed, farm fires and
Diwali firecrackers took the PM 2.5 lev-
els to unprecedented numbers.
The week saw no respite as Delhi-
NCR experienced the worst air quality
of the season. For the first time, a public
health hazard was declared, and an
advisory issued to the people. The Delhi
chief minister made an appeal to the
chief ministers of Punjab and Haryana
to discuss how to ensure that stubble
burning stops. The odd-even scheme
had already been announced by the
Delhi government in anticipation of the
air quality crisis. The alarming levels of
PM 2.5 triggered a public protest, as
people demanded government action
instead of the ongoing blamegame.
“Protests clearly displayed the sort of
anger, frustration and pent-up regret
that the citizenry has towards the ruling
class and their lack of will to address
one of the worst issues modern India is
facing today. We are fooled and will be
fooled no more!” said Bhavreen Kand-
hari, one of the organisers of the protest.
Nearly 1,500 people turned up at India
Gate on November 4 to demand that
the government act on a priority footing
to tackle the crisis.
In 2017, the central government noti-
fied the Graded Response Action Plan
(GRAP). These emergency measures
kick in—typically during this season—to
tackle the issue of rising pollution. The
GRAP includes a number of measures,
UNI

ing so miserably to prevent the public
health crisis.
On November 6, the court directed
the chief secretaries of Punjab, Haryana,
Uttar Pradesh and Delhi to release the
agreed incentives to farmers who did
not burn their crop remains.
Refusing to accept lack of funds as a
reason, the court ordered that the inter-
ests of small and marginal farmers be
protected and they be provided harvest-
ing machines which they cannot afford.
The bench directed the ministry of agri-
culture, ministry of environment and
forests and the states of Punjab,
Haryana and Uttar Pradesh and the
government of Delhi to prepare a com-
prehensive scheme to take care of envi-
ronmental issues.
Delhi officials were pulled up for
inability to tackle road dust, open garb-
age dumping and burning, and unpaved
roads. They assured the court that most
of the issues would be taken care of
within seven days.
Breathing polluted air has now been
proven to have negative effects, leading
to asthma, cancer and even death. Even
though the deteriorating air quality has
made headlines, and the judiciary has
in all earnestness stepped in, India
does not fare well when it comes to
tackling it.
It is important that the public also
plays its role in helping the authorities.
“They have to be more vigilant regard-
ing violations happening in their
neighbourhoods (like garbage burning,
industrial emissions from illegal units,
and so on), be more aware about their
rights regarding having safe/better
walking and public spaces, and about
maintaining vehicles properly so that
they emit less smoke, and using public
transport as much as possible,” advised
Chattopadhyaya.
All these measures will collectively
help in defeating this deadly monster,
which is becoming an annual threat.
Environment/ Air Pollution in Delhi
including a complete ban on construc-
tion activities, checking road dust
through sprinklers, open garbage dump-
ing, garbage burning, and so on. The
odd-even carload rationing is an action
under the GRAP, the impacts of which
are still being debated. Despite these
notifications and a forecast by the
Indian Meteorological Department
about the change in wind speed,
Delhiites watched in horror as the
smoke and the related health impacts
engulfed them.
Vivek Chattopadhyaya, manager of
the Clean Air programme with Centre
for Science and Environment (CSE), a
Delhi-based NGO which has been cru-
sading for the right to clean air for three
decades, says: “It is not just Delhi, many
other cities in North India also face sim-
ilar or even higher episodic pollution
during winter. For sustained reduction
in emissions more intense and long-
term action is needed.”
Preparedness to deal with episodic
events will require action on all fronts.
For instance, public transport, particu-
larly bus services and last-mile connec-
tivity, parking and congestion issues,
proper networking of all the modes
of transport involved, promoting walk-
ing and cycling by providing safe infra-
structure, and so on. Similarly, diesel
genset usage must be curtailed with
more use of renewable sources and ade-
quate power supply.
D
iwali was the big culprit this
time. The Supreme Court in
2018 had ordered a conditional
ban on crackers and allowed only low-
emission crackers or “green crackers” to
be sold.
Shops in Delhi, however, also had
stocks of regular crackers, which were
sold “under the table”.
“I am sceptical about the new crack-
ers being green. Some regular crackers
were still available and at a much lower
cost, my family bought the cheaper
ones,” said Pahi Mehra, a resident of
Janakpuri. Though she herself abstained
from lighting any fireworks, nothing
stopped her friends and family.
On its part, the apex court pulled up
the government representatives for fail-
“Weareatalosstounderstandwhywearenotabletocreateasituationinwhichthis
kindofpollutiondoesnottakeplace,thattooinaroutinemannereveryyear,”
commentedtheSCbench,headedbyJusticesArunMishra(left)andDeepakGupta.

NDIA EGALEL STORIES THAT COUNT
` 100
NI
www.indialegallive.com
October7, 2019
RadicalReformTheSupremeCourt’sdecisiontocreateapermanentConstitutionBenchandsingle
benchesislongoverduebutquestionsremain.Ananalysis
Indore: The VIP
Honey Trap
Whistleblower Scandal:
Can Trump be impeached?
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out
An
NDIA EGALEEL STORIES THAT COUNT
` 100
NI
October14, 2019
WillsplittingtheSupremeCourtassuggestedby
VenkaiahNaidu(left)helpsteadythedisposal
ofcases?AnanalysisbyProf.UpendraBaxi
The Gita for
engineers
Saying NO
to vaping
BifurcatingTheSystem
GAL
st
sp
B
SS
` 100
NI
October21, 2019
Thepresident’scommutationofdeathsentenceimposedonBalwantSinghRajoana,
convictedfortheassassinationofformerPunjabchiefministerBeantSingh,opensthe
debateonhowtheStateshouldconsidermercypetitions
Dissent and the Courts
by Shiv Visvanathan
Recusals
and Justice
HANGING
FIREBalwant Singh Rajoana being
taken to a hospital in Patiala for
medical check-up in July 2015
BBa
rB
pe
GAL
N
` 100
NI
October28, 2019
JudgmentDay70yearsaftertheAyodhyacasewasfiledinthecourts,afinaljudgmentbytheSupreme
Courtwillbeeagerlyawaited.However,thereislittledoubtthattheissue,whichever
waytheCourtrules,willcreateapoliticalandcommunalflashpointwhichcouldtake
thecountrydownadangerousroad
Subodh Gupta: Disruptive
power of social media
Jammu & Kashmir:
Administrative turmoil
GAL
DDddud
at
po
NDIA EGALL STORIES THAT COUNT
` 100
I
November4, 2019
NCW:
Guardianship rights
Abhijit Banerjee: Noble
ideas for better governance
NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDDIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA EGALEE
`` 100100
NNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNNN
November4 2019November4, 2019NN
AsdesignatedchiefjusticeofIndia,JusticeSharadArvindBobdehasshownhisadroitness
inironingoutproblemswhichcouldhavejeopardisedtheSupremeCourt’sfunctioningand
articulatedauniqueviewontherighttoprivacy
ThePeacemaker
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mee
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` 100
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November11, 2019
Kathua Rape:
Crackdown by the court
Right to Bail
by Prof Upendra Baxi
Inalandmarkruling,theDelhiHighCourtorderedsocialmediagiantstoremoveonaglobalbasis
contentdefamatorytoRamdev,therebybalancingtherighttodefendoneselfwiththatoffreespeech
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JudiciousBalancingAct

Social Media/ Political Ads
HE intriguing announce-
ment by Twitter of stop-
ping all political advertis-
ing is interesting. It
opens up discussion on
online advertising regula-
tions and the role of privacy and data
protection in consumer profiling for tar-
geted advertising.
Though the reason stated by Twitter
for its revenue-sacrificing decision is
that it believes that a “political message
reach should be earned, not bought”,
many in the industry speculate that this
is a strategic move to bring pressure on
its social media rival, Facebook, to fol-
low suit and forego revenue opportuni-
ties during the next US elections.
Twitter’smoveshouldmake
theonlineadindustrygarner
supportforitselfduringthe
passageofthePersonalData
ProtectionActasastrong
lobbywillopposetheuseof
personaldataforprofiling
By Na Vijayashankar
T
Twitter
Challenge

Facebook, when compared to Twitter,
enjoys better efficiency in ad delivery
and provides a higher per ad return to
the advertiser and consequently enjoys a
higher market share.
Hence, if political advertising is
stopped by Facebook and Twitter, it will
hurt Facebook more than Twitter. Face-
book is unlikely to take the bait and,
despite the controversies surrounding
Cambridge Analytica and the advent of
General Data Protection Regulation
(GDPR), it will continue political adver-
tising. As efficient AI-based profiling by
Facebook appears to be contributing to
its better ad performance, it will look for
ways to retain and improve its profiling
rather than stop its ad business.
T
he California Consumer
Protection Act, which provides
clear permissions for sale of per-
sonal data, allows for the possible review
of data protection principles in other
state laws in the US, enabling Facebook
to continue its profiling. With Whats-
App also in its kitty, Facebook has a for-
midable opportunity to harness the poli-
tical ad business during the US electio-
ns. This is estimated to be $6 billion, of
which 20 percent may be invested in
online media.
For Twitter, it may be a business strat-
egy to give up a losing business vertical
in the hope that its competitors would
take the bait.
Let us now focus on the impact of
Twitter’s decision in the Indian context.
It is necessary to remember that Face-
book had, during the last Indian elec-
tions, imposed self-restrictions on politi-
cal advertising by insisting on registra-
tion of political advertisers by following
Know Your Customer (KYC) norms. The
idea was to curb fake news and false
propaganda during the pre-election pe-
riod and to observe the campaign si-
lence period before the elections as per
the directions of the Election Commi-
ssion of India. This was a good step in
improving the reliability of advertising
on Facebook.
There is now continued discussion
on whether social media platforms
should link Aadhaar to the user’s identi-
ty and use KYC norms for all users.
While some privacy activists think that
insisting on KYC for registration on
social media platforms would lead to
curbs on free speech, a majority feel that
stemming the spread of fake messages is
a larger necessity and a permitted
exception to the right of free speech.
It is important to examine if impos-
ing regulations on digital advertising is
one of the measures to prevent fake
messaging and if so, whether it should
be self-regulation by the industry or
statutory regulation imposed through
laws. There is a debate on whether these
regulations should be imposed on
“intermediaries” under the Information
Technology Act, 2000 (ITA-2000),
through the proposed Personal Data
Protection Act (PDPA) or through regu-
lation in the advertising industry under
the Advertising Standard Council of
India (ASCI).
At present, Indian advertising is
largely regulated and controlled by the
ASCI, a non-statutory voluntary body
ThereasonstatedbyTwitteristhatit
believesthata“politicalmessagereach
shouldbeearned,notbought”,but
manyspeculatethatitisastrategic
movetoputpressureonFacebook.
Anthony Lawrence

India Legal - 18 November 2019

India Legal - 18 November 2019

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