India Legal 19 November 2018

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
November19, 2018
Under
SiegeRBIgovernorUrjitPatelcomesunderintense
pressurefromtheExecutiveandthe
TransparencyWatchdog.Thecentrehasinvoked
asectionoftheRBIActneverusedbefore,
leadingtoastalematethatcouldhaveserious
financialandpoliticalconsequences
Obsolete Laws: Time for revision

UPREME Court judge Justice Madan B
Lokur today occupies a singularly note-
worthy position in addition to his exalt-
ed status in the highest court of the
land. As the second seniormost judge,
he now replaces his esteemed predecessor, Chief
Justice of India (CJI) Ranjan Gogoi, as the execu-
tive chairman of NALSA. This development, as it
should, merits the goodwill and blessings of all
Indians who hold dear the concept of equal and
speedy justice for all.
Earlier, CJI Gogoi, while addressing a youthful
audience on the issue of access to justice, had
already set the tone for a future course of action:
“I am trying to make justice accessible while act-
ing as executive chairman of National Legal Ser-
vices Authority (NALSA) for the last one year. I
do not know how far I have succeeded. A different
approach and a different thinking are needed for
it and it will be forthcoming in the near future.”
In pursuance of this laudatory goal and conti-
nuity of approach, the India Legal Research
Foundation (ILRF) volunteers its participatory
support to Justice Lokur and NALSA. It may be
of help to take a cue from a Commonwealth
Human Rights Initiative (CHRI) report titled
“Hope Behind Bars”.
Some of the key findings of the CHRI report
are that per capita spending on legal aid in India
is only `0.75 (one of the lowest in the world),
14 percent of the total funds allocated to state
legal services authorities remain unutilised and
the legal aid scheme administered by NALSA is
plagued by lack of accountability and quality. The
report further said that almost 80 percent of
India’s population is eligible for legal aid and
while the NALSA framework is quite detailed, ac-
tual delivery falls short.
The statistics maintained by NALSA convey a
similar message—since its inception in 1987, only
1,67,11,477 people have benefited through various
legal services authorities and from April 2017 to
March 2018, just 8,22,856 people.
The aims of NALSA and ILRF converge. Set
up under the National Legal Aid Services Autho-
rities Act, 1987 (NALSA Act), NALSA is a central
authority which works to provide legal aid to eli-
gible litigants, establish legal aid clinics and or-
ganise Lok Adalats. The ILRF is a legal aid foun-
dation which provides free and high-quality legal
aid to those unable to afford it. It is part of the
ENC media network, which produces India Legal
magazine, India’s first politico-legal publication.
It is a one-of-its-kind journalistic endeavour
focusing on current issues of governance, law and
policy, and constitutional contours. ENC’s broad-
cast arm is the path-breaking APN News, the 24x7
national TV channel.
These media outlets cover day-to-day court
proceedings from all across India, with in-depth
analyses by legal experts. We partner with NLU,
Delhi, and NALSAR, Hyderabad, for undertaking
socially beneficial projects and analysing our legal
system along with recommending remedies. The
ILRF has been active in helping the downtrodden
sections of society from the day it started working
towards attaining the constitutional objective of
providing free legal aid in the spirit of Article 14
and Article 39A of the 42nd Amendment.
During the last two and a half years, we have
successfully worked on thousands of applications.
We have a team of volunteers in different states
handling a variety of grievances from ordinary
people who have nowhere else to turn. They also
provide free legal assistance through their net-
work of lawyers to the needy.
In addition, the ILRF campaigns actively to
promote the rights, working environment and
aspirational potential of women. It operates a
popular pro bono monitoring programme in
which successful women from across professions
share their experiences and wisdom to eliminate
gender bias.
The ILRF’s maiden conclave, focusing on the
A COMMON MISSION
Inderjit Badhwar
Letter from the Editor
S
4 November 19, 2018
TheaimsofNALSA
andILRFconverge.
TheILRFisalegal
aidfoundation
whichprovidesfree
andhigh-quality
legalaidtothose
unabletoaffordit.It
hasbeenactive
inhelpingthe
downtrodden
sectionsofsociety
fromthedayit
startedworking
towardsattaining
theconstitutional
objectiveof
providingfree
legalaid.

| INDIA LEGAL | November 19, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
theme of “Access to Justice” was held in Ranchi in
July 2016. It was inaugurated by Droupadi Mur-
mu, the governor of Jharkhand. The Chief Justice
of Jharkhand High Court, Virender Singh, was
the guest of honour. It was attended by justices of
the state High Court, retired judges, eminent law-
yers, former presidents of the Supreme Court Bar
Association, law students and leading opinion-
makers. The event received nationwide attention
and media coverage.
W
ith this editorial, we are taking the lib-
erty of extending our services to
NALSA through any joint initiatives
such as seminars, dissemination of articles, spe-
cial media events and coverage, teaching opportu-
nities and outreach programmes they may wish
to suggest.
Here’s the bitter truth about India’s ongoing
battle for justice. It is out of reach for the coun-
try’s teeming millions. We will become the voice
of voiceless litigants. One of the greatest gifts
of freedom and liberty endowed to us by our
Founding Fathers is the Access to Justice. These
may be simple sounding words. But their beauty
and spirit lie in their very simplicity. Access is
another word for the “right to entry”, or the “right
to use”. Justice means fairness, impartiality,
righteousness, even-handedness, fair dealing,
honesty, integrity.
As a wise jurist once said, it is “from this
juridical principle of natural justice that human
beings can derive the moral ammunition to strive
for what each individual craves day by day: A Life
of Dignity.”
Ours should be a collective effort of taking the
law to the people. If, in accessing justice, the com-
mon man has to encounter barriers and impedi-
ments, the equality clause in our Constitution
becomes no more than a promissory note! A
paper tiger!
So, in a judiciary where access is gagged and
the institutions which are responsible do nothing
to remove the obstacles, such a system ceases to
be an independent judicial system. As early as
1956, the apex court while interpreting Article 14
decided that our Constitution is not meant only
for the elite, it is also for “the butcher, the baker
and the candlestick maker”.
However, there is much more to be done in
this regard and the ILRF has taken a small but
necessary step in embarking upon this arduous
journey—an onerous task with the clear vision of
realising the first mission of Mahatma Gandhi:
“To wipe every tear from every eye.”
NOBLE MISSION
(Clockwise from
above) Supreme
Court judge Justice
Madan B Lokur, the
executive chairman of
NALSA; Jharkhand
Governor Droupadi
Murmu lights the
ceremonial lamp at
the ILRF’s maiden
conclave at Ranchi in
2016 in the presence
of Chief Justice of the
Jharkhand High Court
Justice Virender
Singh; CJI Ranjan
Gogoi was the
executive chairman of
NALSA before Justice
Lokur

ContentsVOLUME XII ISSUE1
NOVEMBER19,2018
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6 November 19, 2018
Coming to a Head
With the government deciding to invoke Section 7 of the Reserve Bank of
India Act, the central bank governor, Urjit Patel, is at the receiving end from
the Executive, as well as from the Central Information Commission
LEAD
12
It’s all about the Money
The centre and Election Commission must respond to a public interest litigation
seeking immediate steps to tackle bribery and use of black money during polls
SUPREMECOURT
18
Walking with the Lord
A lawsuit in the Delhi High Court has opened the
doors for disabled people to go on the yearly Haj
pilgrimage, a privilege denied to them earlier
COURTS
20

Playing to the
Galleries
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Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
Ringside............................8
Courts ...............................9
Delhi Durbar ...................10
International Briefs..........37
Media Watch ..................49
Satire ..............................50
Protests by India over a new bus service
between Lahore and Kashgar are part of a
plan to present a tough image of the Modi
government ahead of polls
46
Down to Business
While India’s Doing Business Index has registered an uptick, for things to sub-
stantially improve, conflicting regulations and stifling bureaucracy have to go
34
ECONOMY
STATES
The Kerala High Court order in a case involving ex-minister KM Mani is a thumbs
up to former chief minister, VS Achuthanandan, in his battle against corruption
40Raising the Bar
Promises and Policy
The government has acknowledged the need to set targets
with regard to reducing particulate matter in the air, but a
credible strategy is the need of the hour
30
Proof of Conspiracy
A shocking admission by a witness
in the Sohrabuddin Sheikh fake
encounter case shows yet again that
BJP leader Haren Pandya’s death
was a political murder
A Statue for Ram 44
Uttar Pradesh Chief Minister Yogi Adityanath’s announcement in Ayodhya
is a bid to quell discontent among bhakts over the promised temple there
Not Cast in Stone
The apex court has said that a Scheduled Caste person in one
state cannot avail of reservation benefits in another
21
Restraint Is Key
The Delhi High Court lays down directions to stop indiscriminate
use of the powers of preventive arrest by magistrates and cops
22
Cry of the Forest
An expressway through the verdant Aravali Biodiversity Park will
destroy it. But a petition in the top court could stymie this plan
26
ENVIRONMENT
Statutory Warning
The Madras High Court’s order in the case of a minor eloping
with an older, married man is hard to implement
24
Not Common
Sense
Close to 3,000 British-enacted, arcane
laws exist in our statute books. These
can either be discarded or modified
38
SPOTLIGHT
42
GLOBALTRENDS

8 November 19, 2018
“
RINGSIDE
“People have been
demanding for long
that Ahmedabad be
renamed as Karna-
vati. The government
is considering this
demand. Consul-
tation process has
been started...we will
take a concrete step
before Lok Sabha
elections.”
—Gujarat Chief
Minister Vijay
Rupani to the media
in Gandhinagar
“It is our responsibil-
ity to come together
and protect this
nation and save
democracy, the
Constitution and
institutions....”
—Andhra Pradesh
CM N Chandrababu
Naidu on his efforts
to forge Opposition
unity ahead of the
2019 polls
“Notebandi impacted
every single person.
Small and medium
businesses...are yet
to recover from the
demonetisation
shock....the economy
continues to
struggle to create
enough new jobs for
our youth....”
—Former Prime
Minister Manmohan
Singh on the second
anniversary of
demonetisation
“Ayodhya is a sym-
bol of our ‘aan,
baan aur shaan’
(honour, pride and
prestige). Nobody
can do injustice
to Ayodhya.”
—Uttar Pradesh
Chief Minister Yogi
Adityanath at the
Deepotsav celebra-
tions in Ayodhya
after announcing
that it will be known
as Faizabad district
“Why did Maneka
Gandhi not raise
any questions when
Shafath Ali Khan
killed a tiger in her
constituency...?...
why is she silent on
villagers...lynching
a tiger to death
in UP?”
—Maharashtra
Minister Sudhir
Mungantiwar on
Maneka's tweets
against the killing
of a tiger in the state
“This was the first
step. There are 28
Lok Sabha seats.
We’ll work with the
Congress party to win
all of them; that is
our goal....”
—Karnataka Chief
Minister HD Kumara-
swamy on the wins
registered by the
JD(S)-Congress in the
Karnataka bypolls
“Now we will not
seek anything from
anyone, it will be a
fight. We will create
such a condition in
front of Chautala
sahib that he will be
compelled to ask
Dushyant to return
to the party.”
—INLD leader Ajay
Singh Chautala, on
Om Prakash Chau-
tala expelling his sons
from the party
“I say that if anybody goes to the police station to
register his complaint, can we not say four good
things to him? If there is someone who has been wait-
ing for one or two hours, and we see that he is tired,
can we not offer him one glass of water? Will we
become small…. Politeness does not mean that a man
cannot be decisive.”
—Union Home Minister Rajnath Singh while addressing
the Delhi Police at a function

The Supreme Court
allowed the viewing of
GD Agarwal’s body, the
environment engineer and
activist who died in Rishi-
kesh following an indefinite
hunger strike for a clean
Ganga. Since the activist’s
death, his followers had
been demanding viewing of
his body, lying in the mor-
tuary at All India Institute of
Medical Sciences (AIIMS),
Rishikesh, leading to a peti-
tion in the Supreme Court.
The apex court allowed
viewing of his body within
the hospital premises for
10 consecutive Sundays in
batches of 10-50 people. A
former IIT professor, Agar-
wal, also known as Swami
Sanand, died on October 11
following 109 days of
hunger strike, and accord-
ing to his wish, his body
was donated to AIIMS,
Rishikesh for research and
teaching purposes.
Courts
—Compiled by India Legal Team
Plea against Shivaji
statue dismissed
APIL has been filed in
the Supreme Court
challenging the Ministry
of Information and Broad-
casting (I&B)’s circular
which advised the media
to refrain from using the
word “Dalit”. The PIL co-
ntends that the circular is
ultra vires, arbitrary, irra-
tional and violative of Arti-
cles 14, 15, 19 and 21 of
the Constitution. The cir-
cular, issued by the I&B
ministry on August 7,
states that the constitu-
tional term, ”Scheduled
Caste” in English and its
appropriate translation in
other national languages,
should alone be used for
all official transactions,
matters, dealings, etc
while referring to SCs.
The Supreme Court has given its
nod for a separate High Court for
Andhra Pradesh (AP), which will be
known as the Telangana High Court
and will start functioning from Janu-
ary 1, 2019. The new court, which
will be the 25th high court in the co-
untry, will temporarily function from
a makeshift building till the perman-
ent structure is built in AP’s de facto
capital, Amaravati. This move is in
line with the AP Reorganisation Act,
2014, which resulted in the bifurca-
tion of AP and creation of Telangana,
and has a provision for separate high
courts for the two states.
Andhra Pradesh to
get own High Court
The Supreme Court observed that sex
workers also have a right to refuse their
services and seek redressal on being
forced by any person. The apex court made
these remarks while hearing an appeal
against a Delhi High Court order passed in
2009 which acquitted four men accused in
a gangrape case. The
four accused had earli-
er been held guilty by a
lower court and sen-
tenced to 10 years’
imprisonment.
Reversing the High
Court order and
upholding the order of
the lower court, the
Supreme Court said
that: “Even assuming
that the woman was of
easy virtue, she has a
right to refuse to have
sexual intercourse with
anyone....” While
passing the conviction order, the trial court
had stated that: “Even if the allegations of
the accused that the woman is of immoral
character are taken to be correct, the same
does not give any right to the accused
persons to commit rape on her against her
consent.”
The Bombay High Court refused to
stay the construction of the
proposed Chhatrapati Shivaji
Maharaj memorial, saying that “the
decision to have a project of this
nature is a policy decision taken by
the state”. The bench of Chief
Justice Naresh H Patil and Justice
GS Kul were considering three PILs
seeking court intervention against
the construction of the proposed
memorial in the Arabian Sea at
Mumbai. The bench also noted that:
“The priorities of the public need are
matters which lie completely in the
domain of the state government.”
Even sex workers have a
right to say no: SC
PIL against gag
order on using
the word “Dalit”
SC hears plea on
Ganga activist’s
mortal remains

10 November 19, 2018
An inside track of
happenings in Lutyens’ Delhi
All ministers routinely send out Diwali greeting
cards, nowadays on social media, to all and
sundry and it is usually done by a member
of their staff. The one that stood out this
time was because of the politically incorrect
nature and the office of the sender. It was sent
out by Law Minister Ravi Shankar Prasad and
the bottom half of the image had visuals of
rockets while the
badly worded
greeting itself men-
tioned: “Presents
to share success,
firecrackers to burn
evils (sic), Sweets
to sweeten suc-
cess…”
Considering that it
is the Supreme
Court which is
clamping down on
the use of fire-
crackers in NCR in
the light of danger-
ously high pollution levels, and he is the Law
Minister, such encouragement on the use of
firecrackers is both crass and insensitive, not
to mention in defiance of the stand taken by
the apex court.
In all probability, the electronic card was
chosen by one of his staff, but if it was sent
without the minister getting a preview, the
blame is equally his.
DIWALI PROMOTION
The head that is most uneasy in India right
now belongs to RBI Governor Urjit Patel.
His differences with the Modi government
and the finance ministry headed by Arun
Jaitley appear to have reached breaking
point. The government and the RBI have
been at loggerheads for over a month now
over the question of the central bank’s
autonomy. It surfaced when one of the RBI
deputy governors said in a speech that
undermining the central bank independ-
ence could be “potentially catastrophic”
and has gone downhill since with the gov-
ernment, in poll mode, pressing for a relax-
ation of curbs on lending and also wanting
access to a large chunk of the RBI’s sur-
plus reserves. Now, the
buzz in the corridors of
North Block is that Patel
will announce his resig-
nation at the next board
meeting of the central
bank later this month,
and the government is
shortlisting an IAS officer
to replace him. Two
names are doing the
rounds—Shaktikanta Das
and SEBI chief Ajay
Tyagi. Das seems to have
the edge, having served as Economic
Affairs Secretary and Revenue Secretary.
He is a member of the 15th Finance
Commission of India and India’s Sherpa to
the G-20. If Urjit steps down, it will be his-
tory’s lessons unlearnt —Patel’s predeces-
sor Raghuram Rajan also fought for RBI
autonomy and paid the price.
The week gone by saw a rare swift-
ness on the part of the Centre in issu-
ing the notification for appointment of
four judges to the Supreme Court—
just 48 hours after the Collegium had
recommended these elevations. The
urgency with which the appointment
of Justices Hemant Gupta, Ajay
Rastogi, MR Shah and R Subhash
Reddy to the top court was cleared
even left Chief Justice Ranjan Gogoi
“very shocked and in awe”. While the
government was brisk with the
Supreme Court appointments, it
harked back to its stalling tactics
when it came to almost simultaneous-
ly made recommendations for
appointing judges to various high
courts. There are two instances that
have created a buzz in the power
corridors—both of which prove that
Chief Justice Gogoi hasn’t compro-
mised his rebellious streak since
assuming office.
The first concerns the centre’s
decision of notifying the elevation of
Justice AS Dave as acting Chief
Justice of the Gujarat High Court, on
November 1, after its chief justice, R
Subhash Reddy, was moved to the
Supreme Court. Justice Dave was
second in seniority among the puisne
judges of the court and, as per tradi-
tion, the second senior-most judge,
Justice AA Kureshi, should have taken
over from Justice Reddy. Sources say,
CJI Gogoi promptly wrote to the
Union law ministry making it clear that
the government’s “highly arbitrary
decision” was against conventions of
the judiciary. In an informal interaction
with the media the next morning, CJI
Gogoi termed the notification about
Justice Dave “a mistake”. Hours later,
the Centre issued a fresh notification
naming Justice Kureshi as acting
chief justice of the Gujarat High Court.
The CJI has now reportedly sent a let-
ter to the centre making his displeas-
ure known over the increasing trend
of the government splitting up recom-
mendations made by the Collegium—
approving certain names while with-
holding others.
TAKING A
TOUGH STAND
THE HOT SEAT

Delhi
Durbar
Much is being made of the Sardar
Patel statue inaugurated last week by
the prime minister and the world
record breaking height. Now, the con-
troversy around the approximately
`3,000 crore cost is starting to
emerge. First, a Conservative Party
British MP objected to the UK giving
India loans. “To take 1.1 billion pounds
in aid from us, and then spend 330
million pounds on a statue is total
nonsense. It is the sort of thing that
drives people mad,” MP Peter Bone
said, referring to Britain’s donation of
over 1.17 billion pounds (around
`9,492 crore) to India as foreign aid in
the last five years. In India, the
Comptroller and Auditor General
(CAG) has questioned the decision of
using CSR funds of PSUs to finance
the statue. The CAG report mentions
that the Gujarat government organisa-
tion responsible for the project
approached Indian Oil Corporation,
ONGC, Bharat Petroleum, Oil India
Corporation, GAIL, which, according
to CAG, contributed close to `150
crore (other estimates are much high-
er), and added that “contribution to
this project does not qualify as
CSR activity”.
FINANCING THE SARDAR
MARRIAGE
PARTY
After a fairly long spell in comparative
political obscurity, former union minis-
ter Jairam Ramesh seems to have
been restored to favour in the ever-
changing Congress hierarchy. Being
Ramesh, he had used his period of
exile to work on a book on Mrs
Gandhi (Intertwined Lives: PN Haksar
and Indira Gandhi), and it has done
his prospects no harm. His return is to
a position of pre-eminence—he has
been put in charge of coordination for
the team preparing for the 2019 Lok
Sabha elections. His return has
already created waves and some con-
troversy. The fact that the role of Divya
Spandana who was heading the
party’s social media cell, was down-
graded shortly after Ramesh’s eleva-
tion, is no coincidence. He is said to
be behind Nikhil Alva, son of veteran
Congress Karnataka leader Margaret
Alva, being put in charge of Rahul
Gandhi’s Twitter handle, a job
Spandana was doing earlier. Ramesh
is also from Karnataka and is said to
have joined hands with the party’s
media in charge, Randeep Surjewala,
who wants the social media cell to be
part of the overall media division and
not a separate unit. It may be recalled
that Ramesh fell out of Sonia Gan-
dhi’s favour after his injudicious
remark about the Congress facing an
existential crisis. In politics, there are
no permanent exits.
A crucial factor in the forthcoming Lok
Sabha polls will be the political align-
ments in India’s largest state, Uttar
Pradesh. Despite Amit Shah’s bluster,
current indications are that if Akhilesh
Yadav’s Samajwadi Party and
Mayawati’s Bahujan Samaj Party join
hands, it could reduce the BJP’s num-
bers to single digits (it currently holds
73 seats out of 80). The two former
rivals have been negotiating quietly
and a late night meeting at the farm-
house of a businessman known to
both, on the outskirts of Lucknow,
seems to have firmed up the alliance.
The meeting was ultra secret, so
much so that both Akhilesh and
Mayawati left their security behind.
Mayawati wanted more seats than
Akhilesh was willing to concede but at
the end of the three-hour meeting, a
deal was reached, with a core group
representing both sides assigned to
hammer out the final tally. The duo
also agreed not to put up candidates
in Rae Bareli and Amethi. The alliance
agreement will be announced once
the final seat share is agreed upon,
but it is now a matter of time, not ego.
BACK IN FAVOUR

Lead/ RBI-Government Tussle
HE war of words between
the Reserve Bank of India
(RBI) and the government
has just got sharper. RBI
Governor Urjit Patel rep-
ortedly stood firm against
the finance ministry’s demands for the
transfer of `3.6 lakh crore out of its con-
tingency reserves and relaxation of its
regulatory curbs on State-owned banks
which are reeling under the impact of a
huge stack of unrecoverable loans.
In fact, tension between the govern-
ment and the RBI has reached such a
point that the former has reportedly
initiated steps to invoke its powers
under Section 7 of the RBI Act of 1934.
This is the first time the government is
exercising its powers under Section 7.
It is a provision under which the gov-
ernment can give directions to the
RBI to take certain actions “in the pub-
lic interest”.
Almost as a coincidence, Patel
received a show cause notice from the
Central Information Commission (CIC)
for defying a Supreme Court order to
disclose a list of wilful defaulters in res-
ponse to a Right to Information (RTI)
application made three years ago.
WiththegovernmentinvokingSection7oftheRBIAct,thetopbank’sgovernor,UrjitPatel,comes
underintensepressurefromboththeExecutiveandtheCentralInformationCommission
By Venkatasubramanian
T
Under Siege

The RBI is a regulatory body which
does not have a fiduciary relationship
with the banks. Therefore, the Supreme
Court found that the RBI does not have
a valid justification to withhold disclo-
sure sought under the RTI Act. The RBI
had disclosed to the Court a list of 150
wilful defaulters who had reneged on
loans worth over `500 crore. The RBI
did so in a sealed cover, with a request
not to divulge that information.
I
n Sandeep Singh Jadoun v PIO,
DGEAT (Director General of
Employment and Training), the
appellant sought information about wil-
ful defaulters of bank loans of `50 crore
and above, with or without guarantees,
the names of guarantors, details of sanc-
tion of loans, default and details of non-
performing asset accounts, etc. The
appellant also wanted to know the cost
and investment of the projects for
employment generating schemes initiat-
ed by the centre between 2005 and 2018
along with the list of failed ones and
those which only existed on paper with
which the Ministry of Labour and Em-
ployment (MoLE) is concerned. Dis-
satisfied with the Central Public Infor-
mation Officer (CPIO)’s refusal to share
information, the appellant approached
the CIC.
The CPIO had dismissed the request,
saying “information was not maintained
in the form sought”. The CIC found this
to be neither a defence nor an exception.
The reply, according to the CIC, showed
that the CPIO had the information
sought in some form, but did not give it.
The department, the CIC held, is
expected to have a record of cost and
investment of the projects, and employ-
ment generated by them. They should
also have the list of successful and failed
projects which only existed on paper,
and were never introduced, the CIC
held. If there are no failures, it should
have been proud of it. “It is their duty
to explain the reasons for the failures, if
any,” the CIC said in its order.
The CIC, M Sridhar Acharyulu,
said in his 48-page order on November
2: “Surprisingly, the defaulters of small
amounts like farmers are defamed in
public, while the defaulters above `50
crore were given a long rope, high
concessions in the name of one-time
settlements, interest waivers, several
other privileges and their names are
hidden from exposure to secure their
reputation!”
The CIC’s order disclosed that acc-
ording to RBI data, which is in the pub-
lic domain, just 12 companies are esti-
mated to account for 25 percent of the
gross NPAs, and were identified for
immediate bankruptcy proceedings,
while there are 488 others which have
been given six months to restructure
their debt or be dragged to the National
Company Law Tribunal.
In October last year, The Financial
Express had published the list of 12
companies. These are Bhushan Steel
Ltd., Lanco Infratech Ltd., Essar Steel
Ltd., Bhushan Power and Steel Ltd.,
Alok Industries, Amtek Auto Ltd., Mon-
net Ispat and Energy Ltd., Electrosteel
NO LONGER IN SYNC
Union Finance Minister Arun Jaitley and RBI
Governor Urjit Patel at an RBI meeting
“The central government may from time
to time give such directions to the Bank
as it may, after consultation with the
Governor of the Bank, consider neces-
sary in the public interest....”
This Section empowers the govern-
ment to issue directions in the public
interest to the central bank, which other-
wise does not take orders from the gov-
ernment. The use of the Section is to
overcome resistance by the RBI to the
centre's pressure to ease lending rules
for banks and release funds from its
reserves, a demand the RBI has refused
so far. A recent court order suggesting
that the government consider giving
directions to the RBI under Section 7 of
the RBI Act in a case involving independ-
ent power producers seems to have
prompted the government to dig out the
Act from among mothballs. Power com-
panies had contested a circular by the
banking regulator that said that if a bor-
rower misses payment even for a day, it
would be considered a defaulter.
Section 7 is seen as an extreme
measure since it has never been used
till now. It was not used even when the
country was close to default in 1991 or
after the 2008 global financial crisis. The
use of this Section raises questions on
the government’s intentions and the
impact on RBI autonomy. It can have a
negative impact on financial stability.
ExplainingSection7:Publicinterestorpoliticalmove?
In practice, the RBI exercises autonomy and takes its own decisions.
However, there is a provision in the RBI Act, never used before, called
Section 7. It contains the following line:
UNI

Steels Ltd., Era Infra Engineering Ltd.,
Jaypee Infratech Ltd., ABG Shipyard
Ltd. and Jyoti Structures Ltd.
Reuters, through information ob-
tained under the RTI Act, reported that
power, steel, road infrastructure and
textiles sectors are the biggest loan
defaulters of State-owned banks.
L
oan defaults or NPAs by the com-
panies are distinguishable from
bad loans. A loan becomes bad
when a bank declares that it cannot
recover the amount lent to a company.
According to the newspaper report, bad
loans had hit a record high of `9.5 lakh
crore at the end of June 2017. Another
media report, according to the CIC’s
order, said that as on September 30,
2017, more than `1.1 lakh crore was
owed to banks by “wilful defaulters”.
There are more than 9,600 such acc-
ounts for which banks have filed law-
suits for recovery and found that the top
11 debtor groups, each with dues of over
`1,000 crore, together had over
`26,000 crore owed to the banks.
After several bank officials were
arrested in `11,400-crore Punjab Na-
tional Bank (PNB) scam, the All India
Bank Officers Confederation (AIBOC),
with a membership of three lakh offi-
cers, challenged the centre to publish
names of the wilful defaulters of all
banks. The AIBOC also urged that the
banks be given the liberty to write to
the home ministry to take over the
passports of directors of defaulting
companies to prevent their escape. The
AIBOC asked why the RBI hesitated in
publishing the list of defaulters like
Vijay Mallya, Nirav Modi and Mehul
Choksi while allowing them to leave
the country. It questioned why the
banks were writing off loans of thou-
sands of crores every year in favour of
corporate bodies.
The CIC’s order cites
media reports to suggest
that about 7,000 mil-
lionaires shifted resi-
dence outside India or
changed their citizen-
ship. The centre admit-
ted in Parliament that 31
business people facing
CBI investigation had
flown out of the country.
A committee, headed by
financial services secre-
tary Rajiv Kumar, with
representatives from the
RBI, the ministries of
home and external
affairs, the Enforcement
Directorate and the CBI,
has recommended stop-
ping wilful defaulters
with loans exceeding `50 crore from
travelling overseas without prior app-
roval. In March, banks were directed to
seek the passport details of borrowers
taking loans of `50 crore and more.
For the quarter ending June 30,
2018, 3,385 suits were filed against
defaulting companies that had wilfully
defaulted on loans of `25 lakh and
above—amounting to a whopping
`57,523.90 crore. The finance ministry
also directed public sector banks (PSBs)
to examine all NPA accounts of over
`50 crore for possible fraud and accord-
ingly, report the cases to concerned
investigating agencies, including the
CBI, ED, and Directorate of Revenue
Intelligence (DRI), if any wrongdoing
was detected.
The CIC order cited the RBI’s
Financial Stability Report, 2017, to show
that India’s gross NPAs stood at 9.6 per-
cent. Finance Minister Arun Jaitley told
the Lok Sabha on August 11, 2017, that
the gross NPAs of PSBs increased by
311.22 percent from `1,55,890 crore in
2013 to `6,41,057 crore in 2017.
COOL VIBES
PM Modi and then RBI
Governor Raghuram Rajan
in Mumbai in April 2015
TheCICdirectedtheRBI,PMOand
financeministrytoexplainactiontaken
onthealertingletterwrittenbyformer
RBIGovernorRaghuramRajan.Theyare
todosobeforeNovember16,2018.
UNI

According to the rating agency,
CARE, as of June 2017, State Bank of
India leads the list of scheduled banks
with the highest NPAs with `1,88,068
crore of stressed assets. PNB and IDBI
followed with `57,721 crore and `50,173
crore of gross NPAs, respectively. IDBI
Bank, which has 24.11 percent gross
NPAs, tops the list for lending institu-
tions with the highest exposure to liabil-
ities. The RBI, according to the CIC’s
order, had framed a scheme with effect
from April 1, 1999, requiring banks and
financial institutions to submit to the
RBI the details of wilful defaulters. The
RBI also recommended criminal action
by banks under Sections 403 to 415 of
the Indian Penal Code, which deal
with cheating.
T
he CIC also noted that the min-
istry of corporate affairs had
introduced the concept of a
Director Identification Number (DIN)
with the insertion of Sections 266A and
266G in the Companies (Amendment)
Act, 2006. The purpose of this amend-
ment was to ensure that persons whose
names appear to be similar to those of
directors appearing in the list of wilful
defaulters are not wrongfully denied
credit facilities if they include the DIN
in the data submitted by them to credit
information companies.
Section 4(1)(c) of the RTI Act re-
quires every public authority to publish
all relevant facts while formulating im-
portant policies or announcing the deci-
sions which affect the public, while
Section 4(1)(d) requires it to provide
reasons for its administrative or quasi-
judicial decisions to affected persons.
The CIC order notes that the finance
ministry, the ministry of statistics and
programme implementation and the
RBI have a duty to inform people from
time to time of all updated information
and to remove the apprehensions
expressed by the AIBOC and the media
on the issue of wilful defaulters of `50
crore and above.
The RBI, in its response, cited “a
basic and long-established common law
proposition” that without the expressed
or implied permission of a customer, a
bank must not disclose either the state
of his account, any of his transactions
with a bank or any information related
to him acquired by reason of keeping
the account, subject to certain limited
and defined exceptions. The RBI also
drew support from existing legal provi-
sions to buttress its contention.
The RBI also drew attention to Sec-
tion 43A of the Information Technology
Act, 2000, and the Information Techno-
logy (Reasonable Security Practices and
Procedures and Sensitive Personal Data
or Information) Rules, 2011, framed
under the Act which gives protection to
sensitive personal data or information of
customers of body corporates. Rule 5(5)
of these rules provides that information
collected shall be used for the purpose
for which it has been collected.
The RBI told the CIC that it was
absolutely necessary to ensure that dis-
closure of any information by it is in
accordance with law, and that it can
publish any information obtained by it
under the Banking Regulation Act,
1934, only in a consolidated form. The
RBI claimed that what is being provided
by banks/financial institutions to it is
customer-related confidential informa-
tion. “The original classification of such
information is not disturbed and the
applicable exemptions under RTI Act,
2005, from disclosure would continue
even when the information is submitted
to the RBI by various banks. Any other
interpretation would result in an anom-
alous and confusing situation, which is
not intended under the RTI Act, 2005,”
the RBI told the CIC.
The RBI explained: “If otherwise
interpreted, it will lead to a situation
when the exemption from disclosure of
such information has been recognised in
the hands of the banking company, the
same will be taken away when the infor-
mation is held by the RBI. The adage is
‘what cannot be achieved directly cannot
be achieved indirectly’.”
The CIC, however, noted that these
submissions of the RBI show that its
legal wing did not bring to the notice of
its CPIO that in RBI vs Jayanti Lal N
Mistry, the division bench of the
TheCICsaidthateveryloanevasionis
misappropriationofpublicmoney,which
thepublichasarighttoknowandbanks
andthegovernmentarewaginglegal
warsonthecitizensseekinginformation.
STIRRING A DEBATE
CIC MS Acharyulu issued a showcause
notice to the RBI over the non-disclosure of
the list of wilful defaulters
Anil Shakya

Supreme Court, on December 16, 2015,
had upheld the CIC’s direction to it to
disclose inspection reports and names of
wilful defaulters in many cases, rejecting
all the above contentions.
The Supreme Court, the CIC under-
lined, had already rejected the RBI’s
contentions, which it had repeated in
this case. The gravamen (essence) of the
Supreme Court’s conclusion is that the
RBI does not place itself in a fiduciary
relationship with the financial institu-
tions because the reports of inspections,
statements of the bank, information
related to the business obtained by the
RBI are not on the pretext of confidence
or trust. In this case, neither the RBI
nor the banks act in the interest of each
other. By attaching an additional “fidu-
ciary” label to the statutory duty, the
regulatory authorities have intentionally
or unintentionally created an
in terrorem effect, the Supreme Court
had held.
Saying that the RBI is supposed to
uphold public interest and not the inter-
est of individual banks, the Supreme
Court had made it clear that the RBI is
clearly not in any fiduciary relationship
with any bank. The RBI has no legal
duty to maximise the benefit of any pub-
lic sector or private sector bank, and
thus there is no relationship of “trust”
between them, it has reasoned. It held
that the RBI ought to act with trans-
parency and not hide information that
might embarrass individual banks.
The CIC concluded: “If RBI fails to
see any public interest behind this infor-
mation request, it will be blind forever
to understand and find what is in best
economic interest of the nation, which
would amount to dereliction of constitu-
tional responsibility of independent reg-
ulatory institution.”
T
wenty-nine State-owned banks
wrote off a total of `1.14 lakh
crore of bad debts between finan-
cial years 2013 and 2015, much more
than what they had done in the preced-
ing nine years. As per RBI data,
between April 2014 and April 2018, 21
State-owned banks wrote off `3,16,500
crore of loans even as they recovered
`44,900 crore. According to a report,
the amount of bad loans written off by
PSBs during the four-year period is well
over twice the projected budgetary
expenditure on health, education and
social protection for 2018-19 at `1.38
lakh crore.
The CIC concluded that every eva-
sion of loan is misappropriation of pub-
lic money, which the public has a right
to know. Vibrant citizens have a demo-
cratic duty to scrutinise the way huge
loans are being granted without secur-
ing them properly. It is unfortunate that
banks and the government are waging
legal wars on the citizens who are seek-
ing information to protect the names
and other details of wilful defaulters,
despite the Supreme Court’s judgment
to the contrary, the CIC observed.
The CIC, therefore, directed the
CPIOs of the RBI, the PMO and the
office of the finance minister to explain
the action taken on the alerting letter
written by former RBI Governor
Raghuram Rajan on February 5. They
are to do so before November 16, 2018.
The CIC has threatened to initiate
penal proceedings against the CPIO of
the RBI if he fails to place the list of
defaulters on its website as per its earli-
er orders, and as confirmed by the Sup-
reme Court in the Jayantilal case.
Holding Urjit Patel and other officers of
the top management of the RBI respon-
sible for dishonouring the Supreme
Court’s directions, the CIC considered
the governor as the “deemed PIO”
responsible for non-disclosure and defi-
ance of the SC and CIC orders, and
directed him to show cause why maxi-
mum penalty should not be imposed on
him for these reasons before November
16, 2018. The CIC also directed its ad-
ministrative officers to explore the possi-
bilities of enforcing the orders of then
Information Commissioner Shailesh
Gandhi which were taken in appeal up
to the Supreme Court by the RBI (which
subsequently lost it). All eyes are on
November 16 when the CIC hears the
matter again to review whether the RBI
has complied with its directions.
TheSupremeCourthadmadeitclearthat
theRBIissupposedtoupholdpublic
interestsand...oughttoactwith
transparencyandnothideinformation
thatmightembarrassindividualbanks.
UNI

Supreme Court/ Election Funding
LECTIONS in India have
always been high-spending
affairs. The Election Commi-
ssion of India (EC) has peri-
odically revised the expendi-
ture limits for candidates
fighting elections to the two houses of
Parliament and the state assemblies, the
limit being dependent on the size of the
states. In 2014, the EC revised the exp-
enditure limit for candidates contesting
the Lok Sabha, Rajya Sabha and the
assembly elections. For larger states, the
expenditure limit for the Lok Sabha
election was increased from `40 lakh to
`70 lakh, and for the assembly elections
from `16 lakh to `28 lakh.
During the assembly elections in
Karnataka in May this year, an under-
cover report by a TV channel showed
that every candidate of a major political
party spent on an average `3.5 crore for
each constituency. The channel conduc-
ted the operation after EC officials sei-
zed almost `152 crore in cash and other
inducement materials from candidates
and their agents. The EC admitted that
the seized money was a fraction of the
actual amount used to bribe voters.
With assembly polls in crucial states
and the general election due in quick
succession, a PIL was filed in the
Supreme Court by the secretary of the
Andhra Pradesh unit of the Communist
Party of India, Kaka Rama Krishna,
seeking strict action to curb black mon-
ey and bribery in the election process.
The apex court ordered that a notice be
issued to the Union government for a
response in this regard. The PIL was
placed before a bench of Chief Justice
Ranjan Gogoi and Justices KM Joseph
and Hemant Gupta.
The PIL focuses on the lack of action
by the EC and other authorities in tak-
ing stringent steps against candidates
who spent more money than the amo-
unt mandated by the poll body. It has
also been contended in the petition that
the officials had seized about `1,000
crore during elections between 2014
and 2018 but no action was taken in
this regard.
According to the Compendium of
Instructions on Election Expenditure
Monitoring issued by the EC, “the
incurring or authorising of expenditure
in excess of the limit prescribed under
Section 77(3) of the Representation of
People’s Act, 1951, is a corrupt practice
with reference to Section 123(6) of the
Representation of People’s Act, 1951.”
The Supreme Court, in LR Shivarama-
gowde v TM Chandrashekar, has con-
ferred on the EC the power to inspect
the election expenses of candidates and
render them disqualified if the accounts
do not state true facts.
Moreover, Section 10A of the Repre-
sentation of People’s Act empowers the
EC to render a candidate disqualified
for a period of three years if the candi-
date fails to lodge an account of election
expenses within the prescribed time
and does not give any justification for
his failure to do so. The EC appoints an
Election Expenditure Monitoring team,
which consists of an Expenditure Obse-
rver, Assistant Expenditure Observer,
Video Surveillance Team, Video
Viewing Team etc, to ensure that elec-
tions are conducted in a fair manner.
The Supreme Court, in Common
Cause v Union of India (1996), observed
that: “Flags go up, walls are painted,
and hundreds of thousands of loud
speakers play out the loud exhortations
and extravagant promises. VIPs and
VVIPs come and go, some of them in
helicopters and air taxis. The political
parties in their quest for power spend
more than one thousand crore of rupees
on the general election (Parliament
alone), yet nobody accounts for the bulk
of the money so spent and there is no
accountability anywhere.” The petitioner
cited two former Chief Election Commi-
ssioners, SY Quraishi and VS Sampath,
urging the government to combat the
menace of bribery in elections. The
alternative, according to them, was the
real danger of our democracy being
turned into a “plutocracy”.
E
THE GREAT INDIAN SHOW
Election rallies can be extravagant affairs
with politicians arriving in private helicopters
Checking
the Loot
TheCourtasksthecentreandECto
respondtoaPILseekingtoughand
immediatestepstotacklebriberyand
useofblackmoneyduringpolls
By Shaheen Parween
UNI

Courts/ Haj Policy
OLLOWING a petition in the
Delhi High Court which chal-
lenged the new Haj policy
2018-22 where persons with
disability were prohibited
from going on this annual pil-
grimage, the centre has amended it and
allowed them permission to go.
The PIL by an advocate, Gaurav
Kumar Bansal, said the policy violated
Articles 14, 21 and 25 of the Consti-
tution. The policy, introduced by the
Ministry of Minority Affairs’ Haj
Committee of India, said that many
such people resorted to begging once
they reached Saudi Arabia. The Com-
mittee said that the Haj requires one to
be physically fit as the pilgrimage is rig-
orous in nature. The list of disabilities
includes mental illness, autism, cerebral
palsy, spectrum disorder, speech and
language disability and specific learning
disability. However, Saudi Arabia does
not have any law prohibiting those with
disabilities from attending the Haj.
The centre’s submission was made
before a bench of Chief Justice
Rajendra Menon and Justice IS Mehta.
Its standing counsel, Ajay Digpaul,
appearing for the Ministry of Minority
Affairs, told the Court that the Haj
Committee had “unanimously decided
to allow persons with special needs to
apply” for the pilgrimage under the
general category. He also gave an affi-
davit giving details of the changes made
in the policy by the Haj Committee. The
amended policy clearly says that “physi-
cal disability of a person will not be
construed as an adverse physical
health”.
The petitioner called the new guide-
lines “discriminatory, arbitrary and
unjust” as there was a clear infringe-
ment of the fundamental rights of dis-
abled persons. Certain words like crip-
ple and lunatics, which are derogatory
in nature, were used in the guidelines,
said the petition. Such words are harsh
and belittling. The guidelines are also
in violation of the Rights of Persons
with Disabilities Act, 2016.
In response to the petition, the Haj
Committee has decided to accommo-
date people with disabilities in the gen-
eral category. Such individuals can go
for the pilgrimage provided they are
able to take care of themselves and per-
form the Haj individually. In cases
where they can’t take care of themselves
and need assistance, they should be
accompanied by an able-bodied person
who is a blood relative, it said.
Maqsood Ahmad, CEO, Haj Com-
mittee of India, Mumbai, told India
Legal that before allowing any pilgrim
to travel to Mecca, a thorough medical
check-up is conducted. This includes a
blood test and X-ray. He said that the
previous stringent restrictions had been
made more flexible. After the doctor’s
certificate, if the Committee is satisfied
that such a person will be able to man-
age on his own or takes the help of a
blood relative, he will be allowed to go.
The amended policy states that
“those with severe medical conditions
such as terminal cancers, advanced car-
diac, respiratory, liver or kidney dis-
eases, infectious tuberculosis disease or
senility” cannot apply for the pilgrim-
age. Ahmad said it was imperative to
recognise the rights of persons with dis-
ability and now that new legislation had
been passed conferring rights upon
them, that should be respected.
F
BAR LIFTED
Differently-abled people are no longer
prohibited from the annual Haj
Pilgrims’ Progress
APILinDelhiHighCourthasopenedthedoorsfor
differently-abledpeopletogoonthispilgrimage
By Sankalan Pal
TheHajpolicyhasbeenrevisedbythe
MinistryofMinorityAffairs.Itclearly
statesthat“physicaldisabilityofa
personwillnotbeconstruedas
anadversephysicalhealth”.
wikipedia.org

Courts/ Reservation
HE apex court has once
again clarified that a
Scheduled Caste person
residing in one state and
notified there cannot claim
reservation benefit if he
takes up residence in another state,
whether or not his caste is included in
that state’s list of Scheduled Castes.
The petitioner, while applying for the
post of district information officer in
Uttarakhand, mentioned in her applica-
tion that she belonged to a Scheduled
Caste. Despite being provisionally
selected, her candidature was cancelled
by the Public Service Commission,
Uttaranchal (now Uttarakhand), on the
ground that she could not derive the
benefit of reservation in Uttarakhand.
Before approaching the apex court,
the petitioner had filed a writ petition
before the Uttarakhand High Court. The
High Court, while dismissing the peti-
tion, observed that the right to be treat-
ed as a member of the reserved category
is directly attributable to birth and a
person can claim reservation only in the
state in which he is born and not the
one to which he may migrate. The divi-
sion bench held that after migration
from Punjab, the petitioner could not be
treated as a member of the Scheduled
Caste in Uttarakhand and therefore, she
was not entitled to be appointed to the
post reserved for SCs.
The petitioner demanded reserva-
tion on the ground that she had married
a Valmiki and was a resident of Dehra-
dun since 1988. She contended that the
Commission had committed an error by
rejecting her appointment against the
post reserved for Scheduled Castes des-
pite the fact that Valmiki is recognised
as a Scheduled Caste in Uttar Pradesh
and Uttarakhand. Two certificates
issued by the tehsildar of Dehradun
showed her as a Valmiki of UP and
Uttaranchal and a permanent resident
of Dehradun.
In Action Committee on Issue of
Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of
Maharashtra and Another v Union of
India and Another (1994), the Consti-
tution bench of this Court, while
answering a similar question, said: “We
may add that considerations for specify-
ing a particular caste or tribe or class for
inclusion in the list of Scheduled
Castes/Scheduled Tribes or backward
classes in a given state would depend on
the nature and extent of disadvantages
and social hardships suffered by that
caste, tribe or class in that State which
may be totally non est in another state
to which persons belonging thereto may
migrate. Coincidentally it may be that a
caste or tribe bearing the same nomen-
clature is specified in two States but the
considerations on the basis of which
they have been specified may be totally
different. ...Therefore, merely because a
given caste is specified in State A as a
Scheduled Caste does not necessarily
mean that if there be another caste
bearing the same nomenclature in
another State the person belonging to
the former would be entitled to the
rights, privileges and benefits admissible
to a member of the Scheduled Caste of
the latter State for the purposes of
this Constitution.”
The apex court while upholding the
order passed by the High Court relied
on two constitution bench judgments,
namely Marri Chandra Shekhar Rao v
Dean, Seth GS Medical College and
Others (1990) and Action Committee
(supra), wherein it was held that a
Scheduled Caste person of one state
cannot derive benefits in any other state.
The Court said that permitting anything
in contravention of this would dilute the
law laid down in both these judgments.
It dismissed the appeal.
T
CHANGING PERSPECTIVE
Marriage often means migration for Indian women,
but they then stand to lose their caste benefits
Caste Away
Theapexcourthassaidthatascheduledcasteinonestate
cannotavailofreservationbenefitsinanotherstate
By Manan Malik
UNI

Courts/ Powers of Preventive Arrest
HE use of the law of pre-
ventive arrest and deten-
tion by those in power if
used arbitrarily can
become a source of injus-
tice for people, especially
the poor and the downtrodden. This has
been reiterated multiple times by the
judiciary and has also been made sub-
ject to controls and regulations.
In a judgment passed by a division
bench of Delhi High Court, Justices S
Muralidhar and Vinod Goel laid down
comprehensive directions to put a bar
on indiscriminate use of the powers of
preventive arrest by special executive
magistrates (SEMs) and the police given
under Section 107 and 151 of the
Criminal Procedure Code (CrPC). The
Court took notice of the larger issue in a
habeas corpus plea filed by advocate
Aldanish Rein wherein one Narender
was sent to judicial custody for two
weeks by the SEM on account of unruly
behaviour with a neighbour. The Court
declared that the order was illegal and
passed without due application of mind.
It granted Narender compensation of
`25,000.
Section 107 sanctions the executive
magistrate to order to show cause a per-
son who is likely to commit breach of
peace or disturb public tranquility in
any way. The person will be asked why
he should not be ordered to execute a
bond with or without sureties for keep-
ing peace for a period not exceeding one
year. Section 151, on the other hand,
gives the police the power to arrest a
person without a warrant or an order
from the magistrate. This is when they
have knowledge of that person design-
ing to commit a cognizable offence and
there being sufficient cause to believe
that the offence cannot be prevented.
The given provisions have an inquisi-
torial nature and are more like an inquiry
than a trial which is to be carried out in a
manner specified by the courts in various
judgments. However, law enforcement
agencies’ attempts to abide by the said
laws are insignificant. This has been
repeatedly seen in a large number of
cases. The fact that 7,335 people were
arrested in just a year from July 1, 2017,
to June 13, 2018, under Sections 107 and
151 of the CrPC in Delhi
shows indiscriminate exer-
cise of power by the author-
ities. Many of those arrest-
ed were from economically
weaker sections of society
who are unable to provide
the sureties required.
Therefore, in order to
counter the misuse of pow-
ers granted under the said
sections, the following
guidelines were issued by
the Court:
An oversight mechanism
consisting of retired dis-
trict judges shall be set up
by the lieutenant governor
(L-G) for Delhi to review the exercise of
powers by SEMs under Sections 107 and
151 of the CrPC. The L-G may even
consider calling these public officials as
SEMs as the appellate magistrate is like-
ly to be mistaken for a judicial magis-
trate.
The L-G will have to issue instruc-
tions to prison authorities for separate
spaces in jails to avoid mixing of those
who are on preventive arrest with those
who have committed offences.
The period of judicial custody under
the said sections is limited to seven
days, mandating weekly review by the
SEMs for further detention.
T
Handle with Care
TheDelhiHighCourthaslaiddowncomprehensivedirections
topreventindiscriminateuseofthepowersofpreventive
arrestbyspecialexecutivemagistratesandthepolice
By Shivani Bhasin
JusticesSMuralidhar(aboveleft)andVinodGoel
passedtheorder.Itwasobservedthat7,335people
werearrestedbetweenJuly1,2017,andJune13,
2018,underSections107and151oftheCrPCinDelhi.

language understood by him, of the
grounds of his arrest and record this in
the order he is going to pass.
The SEM will ask the person whether
he wishes to engage a lawyer of his
choice and also inform him that he can
avail of the services of a remand advo-
cate who will remain present when
these proceedings are being conducted.
The SEM will allow the remand advo-
cate to interact with the person arrested
outside the hearing of the police officers
who have got the person arrested in
order to enable him to obtain the neces-
sary instructions.
The SEM will ensure that the remand
advocate is performing his functions as
required under the Legal Services
Authorities Act (LSAA) and that he is
also a person aware of the constitutional
rights of a person arrested and will act
accordingly.
The SEM will record in his proceed-
ings that all of the above provisions have
been effectively complied with.
After directing the release of a person
upon furnishing a personal bond and
not insisting on surety if such a person
is not in a position to furnish it, the
SEM’s task will not end. He will keep
the matter pending for follow-up on
whether the person has actually been
released on having furnished a personal
bond and/or surety. If within two days
of the order of release, the person has
not come out of jail, the SEM should
pass further orders to ensure release by
either accepting a personal bond and/or
surety of a lesser sum, if at all, that can
be afforded by that person.
The SEM has to mandatorily satisfy
himself on the following grounds before
passing any order under the said sec-
tions:
The constitutional rights of the person
arrested under Articles 20, 21 and 22
have to be explained by the SEMs in a
language understood by the person.
The SEM must ask the person arrested
whether he has been informed, in the
The Delhi State Legal Services
Authority (DSLSA), in association with
the Delhi Judicial Academy, is directed
to conduct regular training workshops
and sessions for the current SEMs to
train and sensitise them on the constitu-
tional requirements of their power.
The principal secretary, home, will
periodically pay surprise visits to the
courts of the SEMs accompanied by the
secretary, DSLSA.
Persons should be released on person-
al bonds instead of sending them to
judicial custody if the verification of the
surety bonds is not complete by the con-
cerned SHOs.
An informative board should be
placed outside the office of the SEM dis-
playing the law of preventive arrest
under the Constitution, CrPC and LSAA
in English, Hindi and the language of
the area. The name of the remand advo-
cate, along with contact details, has to
be mentioned on the board. Also, the
amount to be filled in a bail bond is not
to be given in cash to anyone. The fact
that the SEM is not a judicial magistrate
has to be stated.
The superintendents of Tihar, Rohini
and Mandoli jails will ensure that a pris-
oner received as a result of the judicial
remand order of the SEM shall not be
kept in the same place as undertrials
and convicts and be provided easy
access to the legal aid counsel.
The purpose of Sections 107 and 151
is to avert the commission of an unde-
sirable offence and not to make it a tool
of inequity and oppression against the
marginalised. However, facts and figures
point to the contrary. But, after the
issue of these mandatory guidelines,
less flouting and violations of rules are
expected.
POLICING MEASURES
Awami Action Committee chairman Mirwaiz
Umar Farooq being taken into preventive
custody for defying house arrest in Srinagar
UNI

Courts/ Elopement Cases
N an interesting development, the
Madras High Court in a recent
order expressed shock and pain
over the increasing trend of minor
girls eloping with married men.
Describing this as a disturbing
trend with far-reaching consequences,
the Court said that the time had come to
curtail such practices. It also suggested
that the state government introduce
counselling programmes for teenage
girls and their parents to sensitise them
about this problem.
The issue cropped up on November 1
when a division bench of Justices N
Kirubakaran and S Baskaran was hear-
ing a habeas corpus petition filed by the
mother of a 17-year-old girl who had
eloped with a 45-year-old married man.
The latter was earlier living with his
wife. The bench was caught off-guard
when told by the petitioner’s counsel
that he had a 10-year-old daughter and
immediately turned towards the addi-
tional public prosecutor. When told that
this was the second instance that the
minor girl had eloped with this man, the
bench seemed irked.
The prosecutor told the bench that:
“They eloped for the first time in June
2018. But the police traced them and
while the minor girl was sent to her
family, the man was arrested and sent to
judicial custody. A case under Section
366, IPC (kidnapping, abducting or
inducing a woman to compel her for
marriage), was slapped against that
man. However, a lower court granted
I
TAKING STOCK
Justices N
Kirubakaran
(above) and S
Baskaran (top) of
the Madras HC
Caught in a Bind
Inanattempttosolvethedifficultcaseofaminorgirlelopingwithamucholdermarried
man,theMadrasHighCourthasissuedanorderthatisdifficulttoimplement
By R Ramasubramanian in Chennai
wikimedia.org
TheMadrasHighCourtexpressedcon-
cernthateverydayanumberofcasesare
comingbeforethecourtwithregardto
minorselopingwiththeirlovers,
especiallywitholderandmarriedpeople.

him bail and after coming out of prison
the man ran away with the girl once
again.”
The interim order written by Justice
N Kirubakaran said: “It is not the only
case of such kind. Every day a number
of cases are coming before this court
with regard to minors eloping with their
lovers, especially with aged and married
people. Today itself, this court has come
across four cases of this kind.” The
bench then suo motu made the director
general of police and social welfare sec-
retary of the Tamil Nadu government
respondents and directed them to
answer nine questions in their replies.
(see box)
A section of lawyers welcomed this
judgment. BV Vijayakumar, an advo-
cate, told India Legal: “Justice Kiruba-
karan always stands with the people.
His concerns are always with the com-
mon man. He is a humane judge and in
that sense, I can call him a people’s
judge. This judgment will definitely help
society to arrest the unhealthy practice
of minor girls eloping with older and
married men.”
However, child rights activists saw it
differently. “The Supreme Court in a
2012 judgment categorically stated that
every case of a missing minor child must
be considered one of human trafficking.
This judgment was an outcome of a case
filed by Nobel laureate and child rights
activist Kailash Satyarthi. Human traf-
ficking is done for various reasons—
prostitution, bonded labour, organ steal-
ing and begging. Just a few months
back, the DGP had issued a circular
directing all police personnel to treat
every missing child case as one of
human trafficking and hence, no lethar-
gic attitude on the part of the police
would be allowed,” said A Devaneyan, a
child rights activist.
H
e added: “The issue of minor
girls eloping with married/
older men is a smaller issue
and has been going on for ages. But the
main issue is human trafficking. If gov-
ernments carry out the 2012 Supreme
Court judgment and implement it in let-
ter and spirit, we can to a large extent,
curb human trafficking and eloping too.”
Another activist, V Prabhakaran,
said: “There are already several govern-
ment-controlled/monitored child pro-
tection bodies functioning in Tamil
Nadu in all districts. These include child
welfare committees, the Juvenile Justice
Board, district child protection units,
anti-human trafficking units, child
helplines, etc. But one of the main prob-
lems is that there is no coordination
between them.”
A retired senior police officer who
did not want to be named said: “What
Prabhakaran says is correct. There’s no
synergy between these agencies. The
bench asks why the government has not
formed a separate wing to deal with
such cases. But there is no need to form
any special wing. The systems are alrea-
dy in place. What is required is comple-
te coordination between all the players.”
He said that elopement is an age-old
issue; what is important is to eradicate
human trafficking. “Elopement is closely
connected with the human psychology
and cannot be addressed separately. In
over 35 years of service in the police, I
have come across several cases which
are unimaginable. It is not a mere legal
or social problem.”
Inacasefiledin2012bychildrights
activistKailashSatyarthi(above),theSC
categoricallyheldthateverycaseofa
missingminorchildmustbeconsidered
oneofhumantrafficking.
1. How many minors were either kid-
napped or themselves eloped with their
lovers in the past 10 years (year-wise
details have to be given)?
2. How many minors were kidnapped
or eloped with married / aged people?
3. How many such cases have been
filed and how many people have been
convicted?
4. What are all the steps taken by the
state government to prevent this kind
of elopement of minors with third par-
ties, who are aged, married people?
5. Is it not the bounden duty of the
state government to sensitize the chil-
dren at the school level as well as the
parents by conducting proper pro-
grammes?
6. Is there any case of serial offenders
cheating either sex?
7. How many people have been
arrested and convicted under the
Protection of Children from Sexual
Offences Act of 2012 (POCSO Act)?
8. Offence under the POCSO Act is not
confined to men alone. There are
media reports, wherein married ladies
or aged ladies are eloping with minor
boys. For example, a lady teacher had
eloped with her school student. Those
details have to be given and whether
POCSO Act has been invoked against
such people.
9. Why does the Government not form
a separate wing to deal with these
kinds of cases?
Toughluck
The Madras High Court bench
asked the DGP and social welfare
secretary to answer nine questions
regarding the case of a minor
girl eloping with a married man:

Environment/ Aravali Biodiversity Park
ELLOW Vajradanti lilies
dot the walkway to the
car park and amphithe-
atre as bright black and
orange butterflies flicker
past, flitting between
shrubs in the lambent sunshine. A long-
distance runner toils alone in quest of
his fifth mile. A group of amateur pho-
tographers hunts for a vantage point,
comely in their youth and chattering, as
a family of peacocks roosts in the ravine.
All are blissfully unaware of the
sword of uncertainty that hangs over the
National Capital Region’s (NCR) only
hand-planted forest, spread over 153.7
acres of restored Aravali terrain. It is
home to over 300 species of native
plants, 90 kinds of butterflies, 180 types
of rare birds and wildlife such as nilgai,
golden jackals, hares and civets. In
short, it is a nature lover’s paradise.
However, this slice of heaven is in
danger. The National Highway
Authority of India (NHAI) has submit-
ted a proposal for the first phase of the
40-km Gurugram-Manesar Expressway
or the Greater Southern Peripheral
Road. It consists of a six-lane Link A
road (from Ambience Mall to MG
Road), 1.5 km of which will traverse the
Aravali Biodiversity Park (ABDP). In the
pipeline is also a longer, six-lane, Link B
road (from Vasant Kunj to MG Road)
that will pass via the South Delhi Ridge
reserve forest area of Rangpuri,
Sultanpur, Ghitorni and Rajokri villages
to meet Link A at one corner of the
Park. A Link C road, to be built in the
next phase, will carry traffic from this
intersection on to National Highway-8.
The roads will strike the death knell for
this young forest, only eight years old.
Since its inception in 2010, it has
recharged the capital’s falling water
table and is the green lung for much of
south Delhi and Gurugram.
Growing out of what was once a
stone quarry, the forest is a labour of
love of thousands of children and citi-
zens of Gurugram, whose efforts were
led by Latika Thukral, an ex-banker;
Swanzal Kak Kapoor, an architect, and
Ambika Agarwal, all co-founders of
iamgurgaon, an NGO. Ecological gar-
dener Vijay Dhasmana is a consultant to
Y
Paradise Lost?WiththeNHAIplanninganexpresswaythroughtheverdantanduniquePark,itisindangerof
beingexploitedbyrapaciousbuilders.ButaPILintheSupremeCourtcouldstymietheseplans
By Sucheta Dasgupta
THE HILLS ARE ALIVE
A view of the 154-acre Aravali Biodiversity
Park, the green lung of the NCR
Photos: Anil Shakya

it. The project to plant numerous trees
in this quarry was funded by 58 busi-
nesses. With so much at stake, advocate
Sumit Mehta and his team are now
planning a legal offensive to protect the
Park and the Ridge. He will file a
writ petition challenging the validity of
the Master Plan of Gurugram 2031
which, he says, is based on flawed data.
He will also file a PIL in the Supreme
Court, focussing on the consequent pol-
lution and costs to environment and
health and will propose alternative traf-
fic routes.
Located as it is on what is defined as
gair mumkin pahar (uncultivable hill),
gair mumkin rada (hill pastures), gair
mumkin behed (ravine foothills) and
banjar beed (cultivable grassland) in
land documents, the Park should have
been classified as Aravalis, according to
the ministry of environment, forests and
climate change’s 1992 Aravali Notifi-
cation. It prohibits tree felling and any
construction activity thereupon. How-
ever, as it is not shown as forest but rev-
enue land in the records of the Muni-
cipal Corporation of Gurugram which
owns the lion’s share of it, and is also
not covered by the Punjab Land Pre-
servation Act (PLPA), 1900, it remains
without these two legal protections.
Hills on the opposite side of the main
road, though, are covered by the PLPA.
A
s environmental analyst Chetan
Agarwal informs, in its initial
forest identification exercise in
1997, Haryana only included the Aravali
Plantation and areas notified under
PLPA’s Sections 4 and 5. It did not in-
clude areas recorded as forest in revenue
books. Nor did it include areas not re-
corded or notified as forest even though
they fulfilled the dictionary meaning of
forest as propounded by the Supreme
Court in TN Godavarman Thirumalpad
vs Union of India & Ors, 1996. It has
now delayed this identification process
by over 20 years. All this has given the
real estate lobby a free hand in the
region, leading to commercialisation
and unplanned development as in
Mangar Bani and on Surajpur-Badkhal
Road, and destruction of the hills.
Agarwal calls for a “deemed forest”
status for the park. This way, the Forest
(Conservation) Act, 1980, can be
invoked to rescue the forest. Deemed
forest status is accorded by the state
government to all those forests which
are neither defined as reserved or pro-
tected forests, nor notified as jungle or
bani in the revenue records, but other-
wise fulfil the dictionary criteria requ-
ired of a forest. Paragraph 122 of the
2011 Lafarge judgment sets out the
guideline for doing this. All that is
required is a site inspection by a state
forest department team along with a
ministry of environment, forest and cli-
mate change representative.
At present, there exists about 28
acres of private land in ABDP. Of these,
10 acres belong to the KP Singh-owned
DLF Limited, sparking fears that once
the tender is floated by NHAI after
clearance of the detailed project report,
it may be this company that ultimately
bags the contract for building the
expressway.
Rajveer Singh, a senior official in the
Gurugram Metropolitan Development
Authority (GMDA), which has given in-
principle approval to NHAI’s Phase I
proposal of the expressway, claims the
roads will solve the connectivity prob-
lem for those travelling between Delhi
and Manesar, especially businessmen.
“There is a rush of traffic on NH-8, with
the number of cars burgeoning daily.
This leads to jams, and we need more
road capacity. However, whether the
gain to infrastructure derived from the
expressway is more or less than the
“Noholisticviewhas
beentakenoftheproject,
factoringinenvironmental
lossesandeffectson
airpollutionand
groundwater.”
—ChetanAgarwal,
environmentalanalyst
“TheParkhasintegrated
peoplefromallwalksof
lifeandhasbecomea
landmarkandanidentity
foranotherwise-dreary,
breathlesscity.”
—LatikaThukral,
co-founderofiamgurgaon
NATURE LOVERS’ HAVEN
The Park is home to 300 species of native
plants,180 types of rare birds and wildlife

m, is already bigger than the 80 m
which was planned earlier, and the
vision of Link A has already been
derived and achieved by it. Even if the
expressway is built in the vicinity of a
forest, it has been seen that traffic pres-
sure and the resultant noise drives away
native fauna and migratory birds. The
Sultanpur bird sanctuary, for instance,
lost much of its bird population when
the state highway passing close to it was
upgraded four-five years back.
“No holistic view has been taken of
the project, factoring in environmental
losses and effects on air pollution and
groundwater, even when there exist
multiple alternative public transport
strategies,” says Agarwal. “For instance,
the master plan includes a rapid rail
transit system, starting at Sarai Kale
Khan, passing through Gurugram, and
going into Alwar. Its alignment is most-
ly along NH-8 and the proposal is in
the final stages. Once it is in place, it
will take off at least a third of the traffic
on NH-8.”
Thukral adds: “When we set about
building this park, we realised that our
city did not have a space for people to
interact. Our journey has taught us how
communities get formed. Earlier,
Gurugram had no activity, no avenue
for people to explore an alternate exis-
tence outside corporate life. Now we get
to interact with the Nathupur villagers,
for instance, who invite us to their fami-
ly functions. The Park has integrated
people from all walks of life and has
become not only a landmark but also an
identity for an otherwise-dreary, breath-
less city. If the expressway is built, the
loss will be irreparable. A paradise lost
was regained in the shape of this Park.
Will nature give us one more chance?”
loss to the environment and biodiversi-
ty, which will inevitably happen as a
result of it, is something that must be
analysed,” Singh told India Legal. Perti-
nently, as Agarwal points out, no envi-
ronmental impact and strategic envi-
ronmental assessments take place when
master plans are prepared for cities.
A
s per guidelines of the ministry
of urban development, there has
to be 20 percent green cover in
every city. The Aravali Biodiversity Park
contributes to over five percent of the
green cover of the NCR and 11 percent
of Gurugram’s.
In May 2018, the National Green
Tribunal had asked GMDA to scrap
plans to build a 12-km stretch of the
expressway through the Aravalis and
stick to the original proposal in the
Gurugram Master Plan 2031. But there
are a lot of loopholes in this plan. A
cursory glance would show, for
instance, that the link road alignments
proposed in it and in the Delhi-NCR J-
Zone Master Plan 2021 do not match.
Alarmingly, one broader issue is that
the Delhi Decongestion Plan has several
roads cutting through the Aravalis.
The Town and Country Planning
Department of the Haryana govern-
ment approved the Gurugram Master
Plan 2031 in December 2012.
PATH OF DESTRUCTION
The first phase of the Gurugram-Manesar
Expressway consists of Link A that is set to
traverse the Aravali Biodiversity Park
Whenever the government intends to
spend public money, it has to conduct a
survey. The last official survey of the
Government of India was conducted in
2011 when the population of Gurugram
was about 15 lakh. Since then, there has
been a huge population explosion there.
Today, it ranges between 45 lakh-55
lakh.
And though Singh and the industri-
alists insist that the expressway would
reduce traffic pressure, post the closing
of the toll plaza and building of new
underpasses at Rajiv Chowk, Hero
Honda Chowk, Signature Tower,
Medanta, IFFCO Chowk and Shankar
Chowk, as well as the creation of diver-
sions, much of the traffic on NH-8 is
already streamlined, say locals. There
are no longer bottlenecks between
Manesar and Delhi, they claim.
Instead of building Link B, enhance-
ment of an existing 50-m-wide road
and MG Road in Delhi can provide an
alternative and much shorter route to
Manesar, and save both fuel and time.
The 16-lane Golf Course Road, at 150
Asperguidelines,therehastobe
20percentgreencoverineverycity.The
AravaliBiodiversityParkcontributesto
overfivepercentofthegreencoverofthe
NCRand11percentofGurugram’s.
Environment/ Aravali Biodiversity Park
Mehrauli
Gurgaon
Road
Link A
Aravali Biodiversity Park

Environment/ Air Pollution
NDIA has set a target to reduce
particulate matter (PM) by 30 per-
cent by 2024, a ministry of envi-
ronment, forests and climate
change (MoEFCC) official said last
week. This assertion was made at
the World Health Organisation summit
on air pollution in Geneva where
India’s ministers and senior bureau-
crats were conspicuous by their
absence. It is learnt that WHO had
extended invitations to three Union
ministers, including Environment
Minister Harsh Vardhan, but it is not
known if the unveiling of the Sardar
Patel statue by the prime minister is
what kept them away.
The conference was held in the back-
drop of the severe air pollution proving
to be a grave concern for health, espe-
cially for children in several countries,
including in India. For more than a
week now, millions of residents in the
National Capital Region and other
major north Indian cities have been
waking up every morning to a blanket of
thick smog, the kind that makes the
strongest of men stay indoors. There
was poison in the air as smoke mixed
with fog caused by firecrackers, stubble
burning by farmers, garbage set on fire
and vehicular pollution floated over the
city. Though influential policy strate-
gists and lawmakers live in Delhi, they
could do little as pollution levels crossed
10 times the safe limit and hospitals
across the city reported incidents of
even the young being rushed in with
respiratory complaints.
A recent study by the World Health
Organisation has found that out of the
20 most polluted cities in the world, 14
are in India.
Pollution-related
problems in Indian
cities are nothing new
as is the absence of
political will to tackle
it. Without fail,
around this time of the
year, as temperatures
fall and stubble burn-
ing begins in states
around NCR, air qual-
ity in the capital goes
from bad to worse. As
the media goes to
town highlighting the
dangers ahead, the
government dishes out
Thegovernmenthasacknowledgedtheneedtosettargetsandshowtheresolveto
reduceparticulatematter,butunlessthereisacompliantandcrediblestrategy,
thisislikelytostayonpaperonly
By Ramesh Menon
TACTFUL RETREAT?
Though invites were sent
to three Union ministers,
including Environment
Minister Harsh Vardhan,
none attended the World
Health Organisation sum-
mit in Geneva (left)
I
Promises to Keep

the mandatory promises of a clean-up.
The question is: Will India be able to
live up to its promise to reduce particu-
late matter by 30 percent by 2024? As
pollution levels in Indian cities like the
capital shoot up to unmanageable levels,
how realistic is this? More and more
Indian cities are grappling helplessly
with pollution-related problems which
include deteriorating health and there
does not seem to be an easy solution to
get around it or even reduce it to man-
ageable and permitted levels. Anumita
Roy Chowdhury, air pollution expert at
the Centre for Science and Environment
who is on various government bodies
trying to find solutions to the vexed
problem of pollution, told India Legal:
“The government has acknowledged
that they need to set targets with their
resolve to reduce particulate matter.
But, targets will not work unless there is
a compliant strategy. Where is the strat-
egy to make the city government liable
and accountable to meet cleaner stan-
dards? Targets have to be such that they
can be verifiable. Penal action should
follow if standards are not met, like
withdrawal of funds. Beijing set a target
in 2012 to reduce 25 percent of pollu-
tion by 2017. In five years, they have
reduced it and demonstrated the will to
do it. Delhi will have to reduce 74 per-
cent of the pollution level it has in com-
parison to reach tolerable levels. So a lot
needs to be done. Our action plan has to
reflect the seriousness of the problem.”
T
he meeting in Geneva was called
as increasingly air pollution was
proving to be a grave concern for
health. It was seriously affecting chil-
dren in numerous countries which
included India. Ironically, the ministry
had challenged global research on pollu-
tion in one of its reports in April saying
that indigenous studies were required to
establish the link
between air pollution
and mortality. The
ministry in a presenta-
tion at the summit
said that it was com-
mitted to “bring PM10
and PM2.5 levels
down in definite per-
centage terms by
2024”. This will per-
tain to 102 cities in
India like Mumbai,
Navi Mumbai, Pune,
Delhi, Ghaziabad,
Noida, Kolkata,
Chandigarh,
Bengaluru, Bhopal,
Jaipur, Surat,
Bhubaneswar, Cuttack,
Guwahati, Visakhapatnam and others.
Under the National Clean Air
Programme (NCAP), the central
government plans to unfurl a compre-
hensive programme in 102 cities to
reduce pollution by about 70 to 80 per-
cent in the next 10 years. The NCAP
may take financial aid from the World
Bank to kick off the programme in the
coming months.
Sumit Sharma, air pollution expert at
The Energy and Resources Institute,
told India Legal: “An overall national
level target of 30 percent reduction in
PM2.5 and PM10 by 2024 is being pro-
posed for cities with high pollution lev-
els. This may look achievable, but as
cities are growing at a very fast rate, sig-
nificant measures will be required. It
will need central level policies of
enhanced LPG penetration, introduc-
tion of BS-VI standards from 2020 and
implementation of new power and
industrial sector norms if there has to be
substantial reduction in pollution. These
strategies will not only reduce the direct
primary particulate matter emissions
AccordingtotheWHOGlobalAmbientAir
QualityDatabase,2018,97percentof
citiesinlowandmiddleincomecountries
withmorethan1,00,000peopledonot
meetWHOairqualityguidelines.
EASIER SAID
Beijing has set and
met its target of
reducing air pollution in
just five years. Can
Delhi replicate this?
UNI

but will also reduce emissions from
industries. Other than these, control
over agricultural burning and transport
emissions from vehicles will be crucial.
Sustainable management of agricultural
residues, strengthening of inspection
and maintenance systems and fleet
modernisation will be required for long
term improvement of air quality in
India. The key here is the effective and
timely enforcement of these strategies.”
M
eanwhile, the ministry of
environment, forests and cli-
mate change is at present
working on a three-year National
Environmental Health Profile Project
that is attempting to evaluate the extent
of health effects caused due to environ-
mental exposure. The study that it will
carry out will be spread across 20 cities
spread out in four zones. Each zone will
have five cities. A city where the pollu-
tion levels are not very high will be
taken as a referral city, and cities bat-
tling heavy pollution will be taken as
test cities where the three-year study
would be done. It will rope in leading
medical institutions like the All India
Institute of Medical Sciences.
In the north, Delhi, Ludhiana,
Kanpur and Raipur will be test cities
while Guwahati will be the referral city.
Similarly, Bengaluru, Hyderabad,
Visakhapatnam and Chennai will be
test cities while Thiruvananthapuram
will be the referral city in the south. In
the west, Ahmedabad, Mumbai, Jaipur,
Bhopal will be the test cities with Panaji
as the referral city. In the east, Patna,
Kolkata, and two other cities will be
test cities, while Shillong will be the
referral city. Once done, this might
throw up interesting results that may
help strategists to come up with a work-
able plan.
The exact nature of the study will be
laid out sometime in late November.
According to Dr TK Joshi, senior advis-
er on environmental health at the min-
istry of environment and forests, princi-
pal investigators from the 20 cities will
look at met data, health data and partic-
ulate matter. The three-year analysis
will look at patients admitted for acute
diseases at selected hospitals.
A recent study by reputed medical
journal Lancet has pointed out that
pollution is the largest cause of disease
and death in the world. This is three
times more than deaths due to
HIV/AIDS, tuberculosis and malaria.
Indian officials have disputed the fig-
ure of 2.5 million deaths in India due
to pollution, of which 1.81 were due to
air pollution alone. That means 28 per-
cent of the deaths in the world were
from India. Other countries that saw
large number of deaths due to pollu-
tion were China, Pakistan, Bangladesh,
Russia and Nigeria. Researchers drew
from data from the Global Burden of
Disease study that had comprehensive
estimates on the effects of pollution on
health and pinpointed contaminated
sites in the world.
According to the WHO Global
Ambient Air Quality Database, 2018,
97 percent of cities in low and middle
income countries with more than
1,00,000 people do not meet WHO air
quality guidelines. However, in high
income countries, it is only around 49
percent. As air quality declines, the
danger of chronic and acute respirato-
ry diseases which include asthma
increases. So does the risk of stroke,
heart disease and lung cancer. It is not
a pretty picture.
How realistic is it to induce artificial
rain in Delhi to reduce pollution and
how many times a year is it feasible?
The Central Pollution Control Board,
IIT-Kanpur, Indian Meteorological
Department and Indian Space Research
Organisation are getting together to
start seeding clouds over Delhi in a des-
perate effort to cut pollution.
People have a right to breathe fresh
and healthy air. But for that to hap-
pen, lawmakers and policy wonks need
to be proactive round the year on long-
term strategies and not, as they do
now, work in fits and starts searching
for quickfixes.
Environment/ Air Pollution
“Whereisthestrategytomakethecity
governmentliableandaccountableto
meetcleanerstandards?Targetshaveto
besuchthattheycanbeverifiable.Penal
actionshouldfollowifstandardsarenot
met,likewithdrawaloffunds.”
—AnumitaRoyChowdhury,Centrefor
ScienceandEnvironment
“Anoverallnationaltargetof30percent
reductioninPM2.5andPM10by2024is
beingproposedforcitieswithhighpollu-
tionlevels.Thismaylookachievable,but
ascitiesaregrowingataveryfastrate,
significantmeasureswillberequired.”
—SumitSharma,TheEnergyand
ResourcesInstitute

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*1*(9.432 0 1 9

Economy/ India’s Doing Business Index
HE World Bank puts out
an annual ranking of 190
countries to measure the
ease of doing business in
each country. Called the
“Doing Business Index”,
the yearly rankings are meant to meas-
ure regulations that directly affect busi-
nesses. A high ranking signifies that it is
easier to start and operate a business.
The index is generated through a
survey which consists of a questionnaire
sent out to expert contributors (lawyers,
accountants, etc) who deal with business
regulations on a day-to-day basis. The
data collected is then further verified
through conference calls with the survey
participants and country visits by the
World Bank team.
The number one ranked country in
2018 was New Zealand where it takes
half a day to set up a new business.
India ranked 77th on the index, a signif-
icant improvement over the 100th rank
it had in the 2017 survey. Since the
Modi government came to power in
2014, India’s ranking in the Doing Busi-
ness Index has improved by 65 places
from 142nd to 77th.
As the ease of doing business ranking
largely measures improvements in the
regulatory burden, the Modi govern-
ment deserves credit for easing this
burden on Indian companies. In 2014, it
took 35 days to start a business in India.
Today, it takes about 29.8 days—still a
far cry from the 6 hours it takes in New
Zealand, or the 1½ days in Canada, or
the 2½ days in Singapore and Australia.
But it is an improvement nonetheless.
Critics argue that much of this impr-
No Rocket ScienceWhilethereisamodestimprovement,itisstillhardtodobusinessinIndia.Fortheregulatory
burdentobereduced,theobtrusivegovernment,conflictingregulationsandthestifling
bureaucracyneedtoundergoachange
By Sanjiv Bhatia
T
COURTING BUSINESS
PM Narendra Modi with US business
leaders in Washington, DC
UNI

ovement reflects the advancement in
digital technology and online processing
of applications rather than a reduction
in the regulatory burden and governme-
ntal coercion faced by businesses in
India. They cite the evidence that since
2003, when the first index was released,
the global average in the time required
to start a business has dropped from
50.78 days to 19.15 days, a significant
improvement worldwide, and not just in
India alone.
The Doing Business Index, which is
based on an equally-weighted average of
10 indicators, shows that India’s 2018
ranking improved in eight out of 10
indicators from 2015 (see box). Howe-
ver, the ranking for registering property
deteriorated from 121 to 166, while that
for protecting shareholders remained
unchanged at seventh position. The
most significant improvements have
come in the reduced number of proce-
dures and the cost and time that it takes
to obtain construction and electricity
permits. Big problems remain with reg-
istering of property, enforcing contracts,
paying taxes and resolving insolvency. A
simpler GST and an improvement in
bad loans could lead to improvements
on both counts in future rankings.
Comparison of countries using global
rankings like the Doing Business Index
has now become an essential tool for
governments, voters, NGOs, civil liberty
advocates and policymakers. There are
currently about 170 such global indices
that provide easily understandable
quantitative ratings of government
activities and policies.
Country rankings, however, need to
be interpreted with caution. Rankings
are ordinal numbers (1st, 2nd, 3rd, etc)
and unlike cardinal numbers (1, 2, 3),
they only show the relative difference
between two rankings. A nation ranked
30th is better than another ranked 60th,
but not twice as good. Also, a country’s
rank may sometimes improve not beca-
use of anything it is doing right, but
because of a relative deterioration in
other countries. An example of this is
the Ease of Doing Business Index in
which India’s rank has fluctuated several
times from 116 to 142 over the last 10
years. Is this fluctuation just statistical
noise or does it reflect an underlying
change?
W
orld Bank chief economist
and winner of the 2018 Nobel
Prize in Economics Paul
Romer recently resigned from his posi-
tion at the bank stating that he had lost
faith in the integrity of the Doing
Business Index, suggesting it was politi-
cally manipulated. Two researchers at
the Center for Global Development,
Justin Sandefur and Divyanshi Wadhwa,
have shown that India’s rise in the
Doing Business rankings is mostly an
artefact of methodological and sampling
changes. They recalculated the rankings
and found that India’s jump is a more
modest five place improvement in rank-
ing as opposed to the 23 points claimed
by the World Bank Doing Business
ranking system.
Another criticism of the Doing
Business Index is that it is generated
using data from Mumbai and Delhi, two
cities with better infrastructure, legal
systems, government services, etc, than
the rest of the country. Does an impr-
ovement of 113 places on getting elec-
tricity, based on a survey in Mumbai
which gets 24/7 electricity, reflect the
reality of the country? Clearly not, and
as Sandefur and Wadhwa pointed out, if
the World Bank were to use the same
methodology on a sample of randomly
selected towns and villages, India’s score
would be much lower.
Other valid criticisms of the Doing
Business rankings include the fact that
they don’t capture the implementation
of reforms. Theoretically, GST makes
paying taxes easier, but in reality, its
shoddy implementation in India has
hurt business and destroyed jobs. Paying
taxes is now considerably harder and
not easier, yet the Doing Business rank-
ing rewards India based on intention,
not the actual outcome. It also ignores
labour regulation as a component. It is
generally acknowledged that India’s arc-
haic labour laws are the primary detri-
ment to ease of doing business in India.
Surveys of foreign firms wanting to
invest in India repeatedly cite restrictive
labour laws and weak contract enforce-
ment as the biggest impediments to
doing business in India. India ranks
163rd on contract enforcement, among
the worst ranked in the world. We can
all agree that it is challenging to do
business in an environment where con-
tracts cannot be effectively enforced,
irrespective of how easy it is to obtain
electricity or construction permits.
Critics also point to the fact that the
Doing Business Index is a theoretical
construct with little correlation to reali-
ty. If it is easier to do business in a coun-
try, then foreign investment in it should
increase. But that has not always
happened. Russia’s ranking climbed to
31st from 121st seven years ago and
Nigeria has jumped 43 places in the
“Thisresultisaveryclearsignal
fromIndiatotherestoftheworld
thatitisnowcompetingasthe
preferredplacetodobusiness
globally.Startingabusinessis
nowfaster.”
—AnnetteDixon,WorldBank’svice
presidentforSouthAsia
Twitter

India Legal 19 November 2018

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