India Legal 25 December 2017

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Bail-in for banks:
The Great Loot
Why has political discourse
turned so ugly? By Shiv Visvanathan
BITTER MEDICINETwoleadinghospitalchains,MaxandFortis,facechargesofmedical
negligenceandmalpracticewhilepoliticsandpublicpressurecombinetoputthe
medicalfraternityinthedock.Isthecrackdownjustified?

N 2014, I made a courtesy call on then
Chief Justice of India P Sathasivam who
was due to retire in a week. Without refer-
ring to any specific case before him, the
judge seemed highly agitated by judicial
delays, particularly in the case of death row pris-
oners who suffer interminable mental torture or
even go stark raving mad while awaiting deci-
sions on mercy petitions. “This has to be reme-
died,” he said. Little did I know that a day later, a
bench headed by him and comprising Justices
RM Lodha, HL Dattu and SJ Mukhopadhaya
would commute the death sentence of Deven-
derpal Singh Bhullar whose mercy petition had
been pending for eight years following a 1993
Delhi bomb blast which killed nine people.
The judges cited Shatrughan Chauhan vs
Union of India where “unexplained and inordi-
nate delays” in deciding a mercy petition as well
as mental and physical illness were found valid
grounds for commutation of a death sentence to
life imprisonment. Sathasivam’s last judgment as
CJI once again catalysed the judicial and aca-
demic community to re-examine the whole death
penalty issue. India Legal has tackled this sub-
ject in cover stories in the magazine as well as on
its TV channel in which we featured guests, in-
cluding academicians from the National Law
University (NLU).
Last week, an important social story that got
lost in the political din of the Gujarat elections
was a wide-ranging and thought-provoking re-
port on capital punishment in India, titled “Mat-
ters of Judgment”. It is a unique attitude study
on the criminal justice system and the death pe-
nalty featuring 60 former judges of the Supreme
Court of India. They include Justices AK Gan-
guly, Santosh Hegde, Ruma Pal, BN Srikrishna
and RC Lahoti, who have adjudicated 208
death penalty cases among them between 1975
and 2016 (see box for full list).
Dr GS Bajpai, registrar and professor of crim-
inology and criminal justice, a frequent guest on
India Legal TV shows, said at the seminar at
which the report was released: “This report is
not as simplistic as we think based on its face
value and has to be decoded further with respect
to the observations made by the judges. It is
said that criminal law is deficient. I would say
that it is not that criminal law is deficient but we
have failed criminal law. It is the institutions
that have failed criminal law in India. Fresh
insights are not being imported into the criminal
law of this country. It is as if we only like to
debate. This study is not the conclusion but like
a hypothesis which should be taken forward by
law researchers.”
Of the 60 former judges interviewed, 47 had
adjudicated death penalty cases and confirmed
92 death sentences in 63 cases. Considering that
the death penalty represents the most severe
punishment permitted in law, “we sought the
views of former judges on critical aspects of the
DEATH SENTENCES—
WHAT THE JUDGES FEEL
Inderjit Badhwar
Letter from the Editor
I
4 December 25, 2017

criminal justice system like torture, integrity of
the evidence collection process, access to legal
representation and wrongful convictions,” the
study’s authors said in an introduction. The
interviews also examined the meaning of the
“rarest of rare” standard laid down by the apex
court for awarding the extreme punishment in
Bachan Singh vs State of Punjab, the appropriate
role for aggravating and mitigating factors and
the nature of judicial discretion during death
penalty sentencing.
T
he final stage of the report examines the
attitudes of former judges to abolition or
retention of the death sentence “while
exploring their thoughts on recent developments
that seek to move away from the death penalty”.
This is not the first time this troubling legal
subject of life vs death has been explored in
India. In the Constituent Assembly of 1947-49, it
was intensely debated, with Dr Ambedkar
staunchly opposing the death penalty. In 2015,
the Law Commission headed by Justice AP Shah
proposed that the country should aim at com-
plete abolition “but as a first step that it be done
away with for all crimes except terrorism. Fur-
ther, the Commission sincerely hopes that the
movement towards absolute abolition will be
swift and irreversible.”
Nonetheless, the latest study is startling
because it reveals an overpowering recognition
and widespread anxiety among former Supreme
Court judges about India’s criminal justice sys-
tem because of extensive pervasiveness of tor-
ture, fabrication of evidence, the appalling infe-
riority of legal aid and unjust convictions.
For example, as Dr Anup Surendranath,
director of the Centre on the Death Penalty, puts
it: “Judges acknowledge the misuse of Section 27
of the Evidence Act as also planting of evidence.
They acknowledged that torture was a reality.
Only one of them said that it does not exist.
Some said that it is expected that something like
that will happen. They also acknowledged
wrongful convictions. But wrongful convictions
were eventually pitted against wrongful acquit-
tals by some judges and were not viewed as inde-
pendent problems.”
Here are excerpts of the key findings and rec-
ommendations of this exclusive survey:
There was explicit acknowledgment and wide-
spread concern about the crisis in the criminal
justice system due to the use of torture to gener-
ate evidence, fabrication through recovery evi-
dence, a broken legal aid system and wrongful
convictions. Though some former judges did
offer justifications/explanations for this state of
affairs, there was an overwhelming sense of con-
cern about the integrity of the criminal justice
system from multiple viewpoints.
However, the grave concerns about the crimi-
nal justice system did not sit quite well with the
support for the death penalty. In conversations
on the death penalty, the above mentioned reali-
ties of administering criminal justice in India
hardly found mention. This disconnect was best
demonstrated when 43 former judges acknowl-
edged wrongful convictions as a worrying reality
in India’s criminal justice system generally but
when it came to the death penalty only five jud-
ges acknowledged the ‘possibility of error’ as a
possible reason for abolition in India.
All former judges, irrespective of their position
on the death penalty, were asked the reasons
they saw for abolition or retention of the death
penalty in India. In response, 29 former judges
| INDIA LEGAL | December 25, 2017 5
“MattersofJudgment”isauniqueattitudestudyonthecriminaljustice
systemandthedeathpenaltyfeaturing60formerjudgesoftheSupreme
Court.Theyinclude(fromleft)JusticesRCLahoti,SantoshHegde,RumaPal,
BNSrikrishnaandAKGanguly.

identified abolitionist justifications and 39 iden-
tified retentionist justifications. Fourteen reten-
tionist judges took the position that there was no
reason whatsoever to consider abolition in India
and three abolitionist judges felt there was no
reason to keep the death penalty.
Deterrence emerged as the strongest penologi-
cal justification for retaining the death penalty
with 23 former judges seeing merit in that argu-
ment. However, most of them believed that the
deterrent value of the death penalty flows from a
general fear of punishment rather than any par-
ticular deterrent value specific to the death
penalty.
The notion of a bifurcated trial, being a divi-
sion between the guilt-determination phase and
the sentencing phase, did not seem to hold much
attraction for the former judges. Despite the sen-
tencing process in death penalty cases having
very specific requirements as per the judgment
in Bachan Singh, the understanding of ‘rarest of
rare’ among former judges was determined/
dominated by considerations of the brutality of
the crime.
For a significant number of judges, the ‘rarest
of the rare’ was based on categories or descrip-
tion of offences alone and had little to do with
the judicial test requiring that the alternative of
life imprisonment be ‘unquestionably foreclosed’.
This meant that for certain crimes, this widely-
hailed formulation falls apart rendering the sen-
tencing exercise nugatory.
Despite the law setting out an indicative list of
both aggravating and mitigating circumstances
to be taken into account before determining the
sentence, there was considerable confusion
about the weight and scope of mitigating cir-
cumstances. Opinions varied considerably on
whether factors such as poverty, young age and
post-conviction mental illness and jail conduct
could be considered mitigating circumstances at
all, despite them being judicially recognised. A
minority, in fact, did not believe in considering
any mitigating circumstances at all while others
believed that some categories of offences were
simply beyond mitigation.
A striking feature, in stark contrast to the lack
of confidence in the investigative process, was
the confidence that judges had in discretionary
powers in sentencing. This was despite the fact
that more than half the judges believed that the
background of a judge, including their religion
and personal beliefs, were factors that influenced
Letter from the Editor
Justice AR Lakshmanan
Justice Arijit Pasayat
Justice AK Patnaik
Justice AK Mathur
Justice AM Ahmadi
Justice AS Anand
Justice Aftab Alam
Justice Ajay Prakash Misra
Justice Ashok Bhan
Justice Asok Kumar Ganguly
Justice BN Srikrishna
Justice B Sudershan Reddy
Justice Brijesh Kumar
Justice BP Jeevan Reddy
Justice BP Singh
Justice BS Chauhan
Justice CK Prasad
Justice CK Thakker
Justice Cyriac Joseph
Justice DP Mohapatra
Justice Deepak Verma
Justice Fathima Beevi
Justice GB Pattanaik
Justice GN Ray
Justice GS Singhvi
Justice GT Nanavati
Justice Gyan Sudha Misra
Justice HK Sema
Justice HL Gokhale
Justice HS Bedi
Justice K Ramaswamy
Justice KG Balakrishnan
Justice KS Panicker
Radhakrishnan
Justice KT Thomas
Justice Kuldip Singh
Justice MB Shah
Justice MN Venkatachaliah
Justice N Santosh Hegde
Justice PB Sawant
Justice PK Balasubramanyan
Justice PP Naolekar
Justice P Venkatarama Reddi
Justice RC Lahoti
Justice Ruma Pal
Justice RV Raveendran
Justice S. Mohan
Justice S. Rajendra Babu
Justice Swatanter Kumar
Justice SB Sinha
Justice SC Agarwal
Justice SJ Mukhopadhaya
Justice SN Phukan
Justice SP Kurdukar
Justice Shivaraj V Patil
Justice SSM Quadri
Justice Tarun Chatterjee
Justice V Gopala Gowda
Justice VN Khare
Justice VS Sirpurkar
Justice Vikramajit Sen
ListofRespondents
6 December 25, 2017
VEXED ISSUE
The Law
Commission
headed by Justice
AP Shah
proposed that the
country should
aim at complete
abolition of
death penalty

the choice between the death penalty and life
imprisonment. There appeared to be no “bright
line” which distinguished judicial sentencing dis-
cretion swiftly slipping into individual judge-
centric decisions.
The law since Bachan Singh has evolved con-
siderably on the issue of the scope of a sentence
of life imprisonment. In December 2015, a con-
stitution bench of the Supreme Court affirmed
that it had the power to impose a sentence for a
fixed duration or for the natural life of the pris-
oner which were beyond the scope of remission.
While 25 judges believed that this sentencing
formulation was a legally valid punishment,
seven found it violative of constitutional man-
date and separation of powers.
CONCLUSION
“It is interesting that a significant number of
retentionist judges identified abolitionist reason-
ing. It demonstrates the inescapable force of cer-
tain abolitionist arguments, but stark in its com-
plete absence was any acknowledgment of the
disparate impact of the death penalty on the
poor and marginalised sections of Indian society.
In a criminal justice system that is corrupt and
violent at multiple levels, the burden on vulnera-
ble sections of society is immense, and it is only
accentuated within the death penalty context. As
such, it is peculiar as to why this aspect of the
death penalty in India did not find any real fa-
vour amongst former judges, especially those
that were abolitionist.
“The disproportionate representation of the
poor, illiterate, and socially marginalised within
the death penalty context is abundantly clear in
India and other retentionist countries across the
globe. The contrast between the discussions on
the criminal justice system and the confidence
that seems to exist in administering the death
penalty in the very same system is striking. The
role of harsh punishments within a crisis-ridden
criminal justice system is a complex one.
“The challenge really is to comprehend the
considerations which drive the death penalty in a
system that is plagued with torture, fabricated
evidence, and wrongful convictions. As the
harshest punishment in our legal system, the
discussions and positions on the death penalty
must feel the utmost impact of these worrying
realities. It is the extreme ends of our criminal
justice system, that need to be tempered by the
grim reality that the former judges brought out
so powerfully (in the first part of the report).
“Ultimately, the fact that their concerns about
the criminal justice system has not migrated to
their discussion on the death penalty is indica-
tive of the terms on which multiple competing
interests get balanced.”
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
UP IN ARMS
Students of Punjabi
University in Patiala
protest against the
execution order of
Devenderpal Singh
Bhullar, accused in
the 1993 Delhi
bomb blast case
sikhsiyasat.net

Patently
Illegal
IMA president KK Aggarwal writes
that cancelling—the licence of a
hospital for negligence without
serving it adequate notice goes
against the Delhi Nursing Homes
Registration Act
20
ContentsVOLUME XI ISSUE 6
DECEMBER25,2017
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8 December 25, 2017
Heal the System
Medical negligence allegations against two premier private hospitals in the capital
have led to a knee-jerk reaction by the government. Trapped between this populism
and rampant profiteering, it is the patient who finds himself at the receiving end
LEAD
14

Humanoid
Rights
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside .........................10
Delhi Durbar ...................11
Courts.............................12
National Briefs .........22, 39
International Briefs..........48
Media Watch ..................49
Satire ..............................50
Cover Design: ANTHONY LAWRENCE
You Only Live Twice
The practice of politicians contesting from two seats is an old
one. The bench is now hearing a petition challenging it
32
Head of the Bar
Ex-solicitor general Vikas Singh has been elected president of the
prestigious apex court bar association after a keenly fought election
31
Not the State’s Business
A three-judge bench has questioned the wisdom of Section 497
which exclusively punishes the man for committing adultery
28
SUPREMECOURT
President Trump’s recognition of the
city as Israel’s capital has drawn
global condemnation and has far-
reaching geopolitical consequences,
including for India
44Oh Jerusalem
GLOBALTRENDS
A new jurisprudence
is in order with the
birth of Saudi
Arabia’s first artificial
intelligence-powered
citizen and a New
Zealand robot
stepping into the
political arena
SCIENCE
42
When Banks Rob Citizens
A proposed law plans to use depositors’ money to bail-in
unviable banks, jeopardising their financial security
24
Words Are All I Have
The denigration of language in political discourse in recent times
has signalled a decline in democracy
POLITICS
36
ACTS&BILLS
A plea regarding
J Jayalalithaa’s thumb
impression on a document
raises many questions
about the storing of
Aadhaar data after a
person’s demise
Can’t Rest
in Peace
SPOTLIGHT
40

10 December 25, 2017
“
RINGSIDE
“I have been talking
about reservation in
the judiciary and me-
dia for a long time...
There have been judges
from only 250-300
gharanas (families) in
the Supreme Court.”
—HRD Minister Upen-
dra Kushwaha on the
need to take a relook at
the collegium system
“I sincerely hope
that he will apolo-
gise to the nation for
his ill thought trans-
gression to restore
the dignity of the
office he occupies…
sadly and regret-
tably, Modi is setting
a dangerous prece-
dent by his insa-
tiable desire to tar-
nish every constitu-
tional office....”
—Former PM Manm-
ohan Singh on Modi’s
allegation that the
Congress was influ-
encing the Gujarat
polls with the help
of Pakistan
“Someone had told
me that you cannot
eat what Modi eats
every day because it
is not the poor peo-
ple’s food. I asked
him what kind of
food does he (PM)
eat? The person told
me Modiji eats
mushrooms... gets
imported mush-
rooms from Tai-
wan... cost around
`80,000 each. He
went on saying Modi
Saheb consumes five
mushrooms a day.”
—Alpesh Thakor, who
recently joined the
Congress, in a video
“There is a general
belief or general allega-
tion (that) because of
fear of Vigilance, peo-
ple are not taking deci-
sions. But I, my col-
leagues at the Commi-
ssion, and CVOs make
a conscious effort to
address groups of offi-
cers or organisations....
We try to tell bank offi-
cers that these are
myths.... What leads to
Vigilance is a deliberate
omission or commis-
sion, and not an inno-
cent mistake... Almost
every month, I or one
of my colleagues add-
ress one or two banks
and their officers....”
—CVC KV Chowdary,
on banks and organi-
sations not taking
decisions due to fear
of vigilance
“Even the word
‘Gujarat’ was not
mentioned by any
participant of the
meeting...I’m sur-
prised because of the
nature of the allega-
tions and at appar-
ently how anti-Pak-
istani sloganeering
can perhaps still gar-
ner votes in India.”
—Pakistan’s former
foreign minister,
Khurshid Mahmud
Kasuri, referring to
his private dinner
meeting with
Congress leader Mani
Shankar Aiyar at the
latter’s residence
“Today we have prom-
ised each other to be
bound in love forever.
We are truly blessed to
share this wonderful
news with you. This
beautiful day will be
made more special with
the love and support of
our family of fans and
well-wishers. Thank
you for being such an
important part of
our journey.”
—Anushka Sharma
and Virat Kohli’s wed-
ding statement
“Banks were pressured to give loans to only a select few
industrialists… This was the biggest of UPA’s scams,
bigger than coal and 2G. It was loot of people’s hard-
earned money through industrialists.”
—PM Modi, while addressing the 90th annual general
meeting of FICCI

The Indian government is
concerned about recent
remarks by the Dalai Lama
where he expressed his
desire to return home, in
Tibet. After his initial state-
ment—“the past is past,
Tibetans want to stay with
China”—came a subsequent
one which was more specif-
ic, stating that he “would
return to Tibet at once, if
China agrees”. This caused
a great deal of consternation
in the foreign and home min-
istries and officials who have
dealt with him in the past
have been asked to find out
whether he is preparing for a
possible rapprochement with
Beijing. What they seem to
have discovered so far is
that a combination of old
age and nostal-
gia has led to
dreams of His
Holiness wanting
to spend his last
days in Lhasa
rather than
Dharamsala. He
can barely walk
without help and
has given up all duties with
the Tibetan government
in exile.
Further, the inexorable
rise of China as a global
power has led to a diminish-
ing of the acceptance and
support the Dalai Lama
receives from other coun-
tries. He also has a deal
from Chinese President Xi
where he can return to Tibet
and Beijing will look at
greater autonomy for the
Tibet Autonomous Region.
For India, it will be a huge
embarrassment if he were to
return, since it would dilute
its stand on the boundary
dispute and also lose a valu-
able diplomatic stick to prod
the Chinese with.
Indian officials are work-
ing overtime to convince His
Holiness that he will be bet-
ter off where he is.
An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
CONSPIRACY
BLOWBACK
All bluebook security protocols relating to the
prime minister were thrown to the winds so
that Modi could end his Gujarat campaign on
a high note, literally, by taking flight on a sea-
plane along the Sabarmati river. He flew with
a foreign (Canadian) crew—one burly beard-
ed gentleman in shorts—in a single-engine
aircraft registered in the US.
Moreover, it had arrived in Mumbai from
Karachi. Any aircraft the PM uses must be
sanitised—parked in a high-security
area for a specific period—for checks
on airworthiness and security, a pro-
tocol that was done away with. The
SPG usually has its way where securi-
ty issues are concerned but this time,
the PM himself ordered that normal
protocol would not apply.
The PMO website carried a photo
of the PM boarding the aircraft and
captioned it “the first ever flight by
such a craft in the country”. The
same aircraft had, two days earlier,
been used by Union ministers Nitin
Gadkari and Ashok Gajapati Raju for
a demonstration flight in Mumbai by Spicejet
which plans to buy and introduce amphibian
aircraft in India to exploit the transportation
potential of waterways. In both photos, the
seaplane used had the same registration
number N181KQ. The Quest Kodiak aircraft
is operated by a Japanese firm but is
registered in the US. Sea-planes have been
used in the Andamans in 2010, in Kerala in
2016 and recently, to connect Mumbai to
Lonavala. The claim on the PMO website was
quickly removed.
DALAI LAMA’S DILEMMA
If Narendra Modi was unusually
quick in airing his conspiracy
theory about the so-called “din-
ner of traitors” at Mani Shankar
Aiyar’s residence the morning
after it took place, he had good
sources—the Intelligence
Bureau. The IB shadows all
visitors from Pakistan who
belong to the establishment—
in this case a former foreign
minister and an ex-army direc-
tor general—and send daily
reports to the home ministry.
The ministry passed on the
IB report on the two being at
the dinner at Aiyar’s residence
to the PMO, leading to the
claim by Modi about a plot
being hatched against him.
The claim was made more
ridiculous since there were
three independent Indian jour-
nalists present, apart from for-
mer Prime Minister Manmohan
Singh and a galaxy of retired
Indian diplomats. The same
group, minus Manmohan, met
for dinner the next day in a
popular restaurant at the Taj
Mansingh hotel, with IB sleuths
occupying a table across the
floor. Aiyar’s foot in mouth
remark was uncalled for but
ever since he was posted as
India’s first-ever consul general
in Karachi, he has developed
what he calls, a “Pollyanna
view” of Indo-Pakistan rela-
tions, hence his dinner to pro-
mote good neighbourly ties.
Moreover, Aiyar and Khurshid
Kasturi, Pakistan’s former for-
eign minister, have been good
friends ever since they were at
Cambridge University together.
SECURITY BE DAMNED

Judicial activism is forced upon courts as a
result of inaction by governments and the
bureaucracy, which fail to do their jobs. The
courts then have to perforce step in to pro-
tect the rights of the people and ensure that
the law of the land is followed, the Supreme
Court has observed. The Court was referring
to the abject failure of the Uttar Pradesh and
West Bengal governments to build enough
shelter homes for the poor and the homeless,
despite funds being allocated by the centre in
accordance with the National Urban
Livelihood Mission scheme. It sought an ex-
planation from the chief secretaries of these
states and asked them to appear in court. It
had earlier time and again asked them to act.
A report submitted by a panel set up by
the apex court showed that 90 percent of
homeless people in urban areas were without
any shelter, and held the states responsible
for the scenario. The funds given by the cen-
tre were lying unused, it emphasised.
While pulling up the cen-
tre for taking the extra-
dition of a UP businesswo-
man, Ritika Awasty, from the
UK lightly, the apex court
has asked Additional Soli-
citor General Maninder Singh
to seek directions from the
centre on how to bring her
back. The Court also wanted
to know what action could
be taken against her for flou-
ting the undertaking given to
it that she would come back
and face trial. Awasty is bei-
ng tried for cheating, forgery
and criminal breach of trust
in UP and was allowed by
the Court to go to UK in Jan-
uary 2016. However, she is
yet to return and is facing
contempt proceedings. The
Court was livid that the cen-
tre did not act on its orders
for action and warned that
concerned officials will face
action if nothing is done.
Courts
Take action against fugitive businesswoman: SC
The Supreme Court has
clarified that liquor shops
on the stretch of highways
passing through municipal
areas all over India can oper-
ate and will not be
subject to its
December 2016
ban order. The
Court had then
ruled that no liquor
would be sold
within a range of
500 metres from
state and national highways.
However, later it allowed the
Union Territory of Chan-
digarh to relax the ban for
municipal areas.
The issue came up while
the Court was hearing a peti-
tion by a bar in Maharashtra
on the liquor ban. It agreed
with the petitioner that speed
on highways passing through
municipal areas was not
an issue as vehicles move
slowly.
Highways in
municipal
areas exempt
from liquor ban
—Compiled by Prabir Biswas
“Set up portal for
complaints on
child porn, rape”
When
govts fail
homeless,
courts
step in
The Supreme Court has asked
the centre to set up a portal
which could receive all com-
plaints related to child pornogra-
phy and rape videos going viral
on social networks. Unhappy
over the status report submitted
by the centre on the issue, the
Court asked it to place a “proper
detailed status report” on Jan-
uary 8 and make the portal
functional on or before January
10, 2018.
The court has been hearing
the matter for nearly three years
now. It had taken suo motu cog-
nisance of a letter along with
two rape videos that had gone
viral, from a Hyderabad NGO.
The letter drew the Court’s
attention towards the safety of
women and children.
The counsel for the NGO
pleaded that the centre be told to
ensure that the website got
enough publicity. She also
sought that the name of the
complainant be kept secret or
anonymous complaints be enter-
tained. The government counsel
agreed to suggest these recom-
mendations to the centre.

Lead/ Health/Medical Negligence
N the morning of Nov-
ember 30, two premature
babies were born to Ashish
and Varsha at Max Super
Speciality Hospital, Shali-
mar Bagh, a residential
colony in North Delhi. While the girl
was stillborn, her twin brother was dec-
lared dead shortly after. Shockingly, the
bodies were handed over to the grieving
parents in plastic bags. Six hours later,
to the utter shock of the parents, the boy
was found alive while being taken for
the last rites. He was rushed to another
private hospital and kept in an incuba-
tor, where he breathed his last after six
days. After the family protested, the
doctors were summarily terminated
and the license of the hospital was can-
celled on December 8 by the Delhi
government.
The shock to the healthcare system
in India was reinforced as another pri-
vate hospital in Delhi was embroiled in
controversy, this time for overcharging
the parents of a girl who died of dengue.
Seven-year-old Adya was referred to
Fortis Memorial Research Institute, Gu-
rugram, on August 31. After a 15-day
struggle, she died of Dengue Shock
Treatment. Worse, her family was hand-
ed a whopping bill of `15,79,322 by the
hospital. Her father, Jayant Singh, had
alleged overcharging and medical negli-
gence. Details of the medical items bil-
led by the hospital were shocking—750
pairs of gloves and 600 syringes were
charged for Adya’s 15-day stay. In his
complaint to the police, Singh alleged
that the doctor treating Adya had swit-
ched off the ventilator and ambu bag
when she was taken in a private ambu-
lance. To make matters worse, the man-
agement, he said, refused to provide
an ambulance if she was taken to anoth-
er hospital.
While Union Health Minister JP
Nadda said he had asked for a detailed
report to be sent to the health ministry
and an expert committee formed by the
Haryana government stated in its report
Tworecentcaseshaveshowntheproblemsplaguingthissector.Whilegovernmentsindulgein
populistmeasuresandprivatehospitalsbecomeprofit-oriented,itisthepatientswhosuffer
By Usha Rani Das and Lilly Paul
O
DERELICTION
OF DUTY
Max Super
Speciality Hospital,
Shalimar Bagh
Bitter Medicine

that the hospital was responsible for
“negligence”, it is obvious that medical
malpractice is a serious issue. The real
problem is when it becomes entangled
with politicians chasing populist causes
and a hostile public.
MAX HOSPITAL CASE
In the case of Max Hospital, while the
Delhi government cancelled its license
on three grounds under the Delhi Nur-
sing Homes Registration Act (DNHRA),
1953, it does not have the authority to
do so. One of the grounds was the hos-
pital violating the condition for provid-
ing free treatment to the poor. Free land
was granted to Max provided it gave free
treatment to 10 percent of its inpatients
and 25 percent outpatients. An inspec-
tion carried out on November 20, 2017
showed that the Economically Weaker
Section Cell was non-functioning and
had a few broken chairs lying around.
Records also showed that barely eight
percent of patients had been provided
free treatment. Secondly, in accordance
with a May 12, 2017 order, the govern-
ment had permitted the hospital to in-
crease its bed strength by 10-20 percent
due to the increase of dengue, chikun-
gunya and fever cases. But it found that
the beds were being used for non-fever
cases. A showcause notice was issued on
November 22 but the reply by the hospi-
tal authorities was found un-satisfacto-
ry. Third, following the twins’ death, the
Delhi government held the hospital
guilty of criminal negligence.
Dr Girish Tyagi, registrar, Delhi
Medical Council, told India Legal: “The
Delhi government cannot cancel the
license of a doctor, but it can cancel the
registration.” But K Sujatha Rao, former
Union health secretary, said the govern-
ment has no such powers. She told India
Legal: “It is bad in law…they have no
power. This makes the action arbitrary
and high-handed, amounting to abuse
of power. Technically, on the second
ground, it can have the power (sanction-
ing of bed strength is covered by the
DNHRA), but then, for 25 beds being
used for other cases when there is no
evidence of a dengue or chikungunya
case being denied admission, is an over-
reach. This action is not just bad in law
but totally irresponsible.”
WHAT THE ACT SAYS
If one goes by the Act, the state govern-
ment does not have the authority to can-
cel the registration. The Act only covers
registration of hospitals and looks into
maintenance of patient records
and adherence to certain stan-
dards in infrastructure and
human resources. It does not
cover matters of medical negli-
gence. Though under Section 7 of
DNHRA, the supervising author-
ity may at any time cancel the
registration of a person in respect
of a nursing home on any ground,
Section 8 states that before can-
celling the license, one month’s
notice should be issued stating
the appropriate reasons.
Rao added: “I don’t believe in
closing down hospitals and if
such a power must be vested with
the government, then the condi-
tions that deserve such a closure should
be listed. These could include illegal
organ transplantation, not taking infec-
tion control procedures, etc. There must
be a public health dimension, not an
individual act of injury or death.”
Meanwhile, Max Healthcare has filed an
appeal with Lt-Governor Anil Baijal
against cancellation of the registration
of Max Hospital, Shalimar Bagh.
Experts see the Delhi government’s
move as a populist measure. Advocate
Ashok Agrawal told India Legal: “The
grounds on which the license was can-
celled are not valid. It was not in public
interest. It was just to make people ha-
ppy. Cancelling the registration on gro-
unds that are not valid is too harsh.
These are populist measures.” He added
that the action would fall.
PATIENTS’ PLIGHT
The chaos affected patients the most.
According to a statement by Max
Healthcare, Max Hospital, Shalimar
Bagh, treated on a monthly basis around
14,000 patients in the OPD, attended to
over 1,600 emergency patients and an
additional 3,000 patents in inpatient
wards. It stated: “In compliance of the
cancellation order, not only did we have
to turn down the OPD and new IPD,
but planned procedures such as 171
chemotherapies, 63 surgeries and 241
dialysis sessions had to be cancelled,
Medicalmalpracticemaybeaserious
issuebutitlosesfocuswhenpoliticians
likeUnionHealthMinisterJPNadda
(right)andDelhiCMArvindKejriwal
resorttopopulismtopenalisehospitals.

rescheduled or transferred.”
Doctors, meanwhile, are trying to
draw attention to the medical diagnosis
of the incident. Dr Vijay Singh Chauhan,
chairman and managing director, Pra-
kash Hospital, Noida, told India Legal:
“One has to understand that we are talk-
ing of fetuses. They were only 22-weeks
old. They were not going to survive
under any circumstance as they were
premature. The chances of survival in
such cases is hardly two percent. Even
after putting them on a ventilator, they
are prone to life-threatening risks, men-
tal and physical deformities and blind-
ness.” Also, as the parents had accepted
DNR (do not resuscitate), he said doc-
tors were not at fault. DNR is a legal
order wherein cardiopulmonary resusci-
tation or advanced cardiac life support
is withheld and natural death is allowed.
According to a WHO report on
preterm birth, in the US, an estimated
15 million premature babies are born
every year and almost one million chil-
dren die each year due to complications
of preterm birth. Globally, prematurity
is the leading cause of death in children
under the age of five years, it states.
COMMERCIALISED HEALTHCARE
Despite that, the recent cases have bro-
ught attention to the increase in medical
negligence cases over the past few years.
It is estimated that over five lakh pat-
ients die annually because of this. A
2016 study by Supreme Court advocate
Mahendra Kumar Bajpai, who specialis-
es in medical law, showed a 110 percent
rise in the number of medical negli-
gence cases in India every year. The
study also reveals that 90 percent of all
such cases involve hospitals; it was 50
percent 20 years ago. Also, 12 percent of
all cases decided by consumer courts are
to do with medical negligence. Between
60 to 66 per cent of the filed cases are
because hospitals take improper consent
from relatives before performing certain
procedures or switching hospitals, or
improper documentation throughout
the course of diagnosis and treatment.
In another study done by AIIMS’ foren-
sic department, it was found that
wrong treatment was the most common
cause for people to complain about
medical negligence.
In the case of Fortis, an expert com-
mittee set up by Haryana to probe the
child’s death and headed by Principal
Secretary, Health, Amit Jha, said: “After
going through the statements of doctors
and father, it appears prima facie that
the parents were guided by the doctor
opinion to take the child home. The pa-
tient was neither brain dead nor in a
vegetative state, but was alive as per
statement of (treating doctor)… The
LAMA (leave against medical advice) in
this case is shrouded in ambiguity. Un-
der these circumstances, it appears that
prima facie, under the garb of LAMA
process, the hospital disposes of the
patients in an unethical manner when
attendants no longer want to continue
the treatment.” It added: “So by taking
off oxygen and other life supporting
treatment, the doctors have not kept
the patient on the same treatment line.
This is lapse/negligence/unethical con-
duct also… Hence the case is recom-
mended to be sent to Medical Council
of India for action… under this, all sen-
ior doctors treating case… should be
held accountable.”
However, the committee did not find
any anomaly in allegations of overcharg-
ing by the hospital. Paediatric specialists
stated in the report: “There are no
guidelines on how many consumables
are to be used for a PICU patient.
However, general guidelines state that a
liberal use of consumables—for example
syringes, gloves, etc—must be made to
decrease risk of hospital-acquired infec-
tions.” But it was observed that the girl
was issued Meropenem injection 1 gm of
two different brands with different
MRPs with a huge gap in pricing. “Tho-
ugh MRPs of the above mentioned dru-
gs are not notified by NPPA, but due to
a huge gap between the MRPs of two
“Icangenerallysaythat
thereareissues.If
somebodyiscriticallyill
andintheIntensiveCare
Unitorinshockorona
ventilator,thecostofthe
treatment,medicinesand
antibioticscangoup.It
does.Now,whopaysforit
istheproblem.”
NareshTrehan,chairman
andmanagingdirector,
MedantaHeartInstitute,
Gurugram
“Theproblemisthatmost
privatehospitalsarerun
asprofit-making
businesses.Ifthestate
cannotprovideadequate
medicalservices,it
shouldencouragethe
establishmentofnot-for-
profitinstitutionslike
thoseintheUS,wherethe
besthospitalsareinthis
category.”
DrSamiranNundyofSir
GangaRamHospital,Delhi

brands of the same drugs, the basis of
selection of the particular drug to be
used is neither understandable nor a
satisfactory explanation has been given
in this regard by authorised signatory of
the firm. However, the drug prescribed
by the treating doctor is supplied to the
patient,” the report states.
EXPENSIVE HEALTHCARE
In a similar case in March 2017, the Na-
tional Pharmaceutical Pricing Authority
(NPPA) fixed the price of stents and
made it mandatory for stent-makers and
hospitals to display the new prices on
their websites after a PIL was filed by
advocate Birender Sangwan. He filed the
PIL after Metro Hospital in Faridabad
had charged over `1.25 lakh for a stent
that was actually priced at `23,000.
Dr Samiran Nundy of Sir Ganga
Ram Hospital, Delhi, told India Legal:
“The problem is that most private hospi-
tals are run as profit-making businesses.
If the state cannot provide adequate me-
dical services, it should encourage the
establishment of not-for-profit institu-
tions like those in the US where the best
hospitals are in this category.”
Medical negligence often leads to
tragic consequences. In April 2017, more
than 20 people were injected with a
contaminated medicine in their eyes at
the Guru Teg Bahadur Hospital. This
affected their vision and put them at a
risk of losing their eyesight completely.
In another horrific incident in June
2017, the Delhi State Consumer Red-
ressal Commission fined a private hospi-
tal `30 lakh for callously leaving a nee-
dle inside a woman’s uterus after a sur-
gery. In March 2017, the National Con-
sumer Disputes Redressal Commission
ordered Apollo Hospital in Hyderabad
and one of its doctors to pay `4 lakh as
compensation for failing to take the con-
sent of a patient and her family be-fore
a high-risk surgery that allegedly deteri-
orated her health, resulting in
her death.
In February 2017, Apollo Gleneagles
Hospital in Kolkata decided to return
the entire treatment cost of `7.23 lakh
to the family of Sanjay Roy who died
shortly after being shifted from the hos-
pital. The family had to allegedly keep
their fixed deposit certificates as security
to get him discharged as they had no
money. The political chaos that followed
forced the hospital management to take
this decision. Similar cases of private
hospitals extorting huge amounts of mo-
ney from patients led to the Mamata
Banerjee government introducing the
West Bengal Clinical Establishments
(Registration, Regulation and Trans-
parency) Bill, 2017.
One of the most important cases that
set a precedent in the history of medical
negligence in India was the Balram
Prasad vs Kunal Saha & Ors case. In this
case, Dr Kunal Saha fought for almost
20 years against three doctors of AMRI
Hospital, Kolkata for causing his wife’s
death and won the case. The highest
compensation ever paid in such cases
was announced—` 11.41 crore.
The medical sector in India is riddled
with such examples. In The Indian
Express, Sujatha Rao wrote: “In such a
laissez faire environment that would
embarrass Adam Smith or Kenneth
Arrow, the hospitals have been permit-
ted to put profit above life. When chas-
ing a return on investment without
regard to impact on life—be it in the
area of health or environment—is con-
sidered legitimate, then it implies un-
leashing animal spirits that later become
difficult to contain. That is the situation
today and what we are witnessing is the
tension between ‘compromised govern-
ments’ and a profit-chasing private sec-
tor that is able to get by, with impunity.”
MALPRACTICE VS MISDIAGNOSIS
While recent rulings have encouraged
people to go to courts against medical
negligence, the line between human
error and malpractice has become thin-
ner. Nundy said: “There is a difference
between medical negligence in which
“Thegovernmenthas
madeitdifficultforsmall
privatepractitionersto
surviveastheycanhardly
functionamongthe
multipleguidelinesthey
havetoadhereto.Hence,
theypreferworkingin
privatehospitals.And,by
doingso,theycharge
heftyfees.”
DrHarshKumar,directorof
GlaucomaServicesat
CentreforSight,Delhi
“TheDelhigovernment
cannotcancelthelicense
ofadoctor,butitcan
definitelycancelthe
registrationofthe
hospital.Thegovernment
shouldalsotakestepsto
improvethefacilitiesof
governmenthospitalsso
thatpatientsarenot
forcedtogotoprivate
hospitals.”
DrGirishTyagi,registrar,
DelhiMedicalCouncil

the treatment has deviated from the
acceptable standards and a complication
where the management has been correct
but the outcome unexpectedly poor.”
In this context, the decision by the
Delhi government in Max’s case will
affect the healthcare sector adversely.
Nundy said: “Doctors will now start
practicing 'defensive' medicine which
will increase the cost of healthcare as
they will do more tests, increase the
number of referrals to other physicians
and use expensive medicines.”
Dr Harsh Kumar, director of
Glaucoma Services at Centre for Sight,
Delhi, told India Legal that doctors at
Max Hospital were at fault, but for the
“erring of one person, you cannot shut
down an entire hospital”. He said people
would hesitate to come into the medical
profession now. Given that there is al-
ready a severe shortage of doctors in the
country, the outcome will be disastrous.
He said: “Doctors are the soft targets.
The government has made it difficult for
small private practitioners to survive as
they can hardly function among the
multiple guidelines they have to adhere
to. Hence, they prefer working in private
hospitals. And, by doing so, they charge
hefty fees.”
All these naturally make the gap
between the doctor-patient wider.
But from tragedy comes hope. In a
welcome move, the Delhi government
has set up a nine-member expert com-
mittee to recommend norms to be fol-
lowed by private hospitals—including
capping the margin of profit from sale of
medicines and consumables as well as
diagnostic investigations. The panel will
be headed by Dr Kirti Bhushan, Direc-
tor General of Health Services. State
Health Minister Satyendra Jain said the
committee will “prepare a mechanism”
to prescribe drugs mentioned in the
National List of Medicines.
ENFORCE LAWS
Meanwhile, Nadda has directed all
states to implement the Clinical Estab-
lishment Act, 2010 as soon as possible.
At present, only 16 states have incorpo-
rated this Act. Under it, it is mandatory
for hospitals to provide all information
related to patients and their treatment—
procedures and the cost of treatment at
every stage of illness—and to appoint an
ombudsman for redressal of complaints.
But the lack of proper laws will make
any remedial measure a failure. Dr Nar-
esh Trehan, chairman and managing
director, Medanta Heart Institute,
Gurugram, told India Legal: “I can gen-
erally say that there are issues. If some-
body is critically ill and in the ICU or in
shock or on the ventilator, the cost of
the treatment, medicines and antibi-
otics can go up. It does. Now, who pays
for it is the problem.”
Rao said the government should reg-
ulate hospital charges. “A range of char-
ges can be considered but based on a
consultative process. This would require
having uniformly accepted standards
and protocols. Hospitals charging more
must have a justification for doing so.
“Having said that, it is possible that
an ICU in a 5-star hospital could cost
`1 lakh a day if you take into account
their ownership pattern, cost of capital,
dividends that they have to declare, the
personnel and cost of inputs (land/
equipment/personnel deployed/consum-
able/ tests etc) and profit,” Rao added.
Tyagi said that the government
should also take steps to improve the
facilities of government hospitals so that
patients are not forced to go to private
hospitals for treatment.
Is this a case of physician heal thy-
self? The big hospital chains in India
certainly need to show more concern for
patients and less for the bottomline but
there is also the classic market connect
of supply and demand. Barring the All
India Medical Institute in Delhi, which
deals with patients who are political
VIPs, government hospitals lack sophis-
ticated and advanced medical equip-
ment and diagnostic tools. This is main-
ly because of the expense involved in
importing them. Naturally, the family of
a critically ill patient will rush to a pri-
vate hospital, regardless of the costs
involved. It’s a Catch-22 situation and
till private hospitals become more trans-
parent, as Dr Trehan suggests, and
politicians stop pandering to populism,
it is the patients who will continue to be
trapped in the middle.
It’saCatch-22situationandtillprivate
hospitalslikeFortisbecomemore
transparentaboutcareandcost,and
politiciansstopsuccumbingtopublic
pressure,itisthepatientswhowill
continuetobetrappedinthemiddle.
Anil Shakya

HEN Max Hospital,
Shalimar Bagh, lost
its licence recently
for negligence by
declaring a living
baby dead, many
problems cropped up. First, how can an
entire hospital catering to many serious-
ly ill patients just be shut down without
notice? Even if the government wanted
to shut it down, it could have shut down
one department, not the whole hospital.
Is this shutting down correct in
terms of law? The said cancellation
order, dated December 8, 2017, passed
by the Directorate General of Health
Services (DGHS), Government of Delhi,
is illegal and against the principles of
natural justice. The order was passed
under the Delhi Nursing Homes
Registration Act, 1953, and said the
inspection of Max Super Specialty
Hospital, Shalimar Bagh, took place on
November 20, 2017, and after the
inspection, a show-cause notice was
issued to it on November 22.
SECTION 8
As per Section 8 of this Act, before pass-
ing any cancellation of registration
order, the supervising authority is sup-
posed to give a month’s notice to the
nursing home/hospital. The
relevant provision of
Section 8 says: “(1) Before
making an order refusing
an application for registra-
tion or an order cancelling
any registration, the super-
vising authority shall give
to the applicant or to the
person registered, as the
case may be, not less than
one calendar month’s
notice of its intention to
make such an order, and
every such notice shall state
the grounds on which the
supervising authority
intends to make the order
and shall contain an inti-
mation that if within a cal-
endar month after the
receipt of the notice the
applicant or person regis-
tered informs the authority
in writing that he desires so
to do, the supervising
authority shall, before mak-
ing the order, give him (in person or by
a representative) an opportunity of
showing cause why the order should not
be made.”
However, in the present case, the
supervising authority, i.e., DGHS, Delhi,
did not give one month’s notice to Max
and had, in fact, passed the cancellation
order in 16 days’ time. Thus, the cancel-
lation order is against the provisions of
Section 8 of the Delhi Nursing Homes
Registration Act, 1953. Also, the order is
against the principles of natural justice
as it has not given an opportunity to the
hospital to be heard. Further, the
grounds under which registration can be
Lead/ My Space
An Illegal Act
W
ThecancellationofthelicencegoesagainsttheDelhiNursingHomesRegistrationAct,
1953,asonemonth’snoticehastobegiventothehospitalbeforethisactioncanbetaken
AGGRIEVED
Relatives of a newborn who
was wrongly declared dead
raise slogans against Max
Hospital authorities
KK Aggarwal/ Max Hospital Licence

cancelled are provided in Section 7 of
the Delhi Nursing Homes Registration
Act. It says: “Subject to the provisions of
this Act, the supervising authority may
at any time cancel the registration of a
person in respect of any nursing home
on any ground which would entitle it to
refuse an application for the registration
of that person in respect of that home,
or on the ground that the person has
been convicted of an offence under this
Act or that any other person has been
convicted of such an offence in respect
of that home.”
SECTION 5
Section 5 of the Act says: “(1) Subject to
the provisions of this Act and the rules
the supervising authority shall, on the
receipt of an application for registration,
register the applicant in respect of the
nursing home named in the application
and issue to him a certificate of registra-
tion in the prescribed form:
Provided that the supervising
authority may refuse to register in the
applicant if it is satisfied:
(a) that the applicant, or any person
employed by him at the nursing home,
is not a fit person to carry on or to be
employed at a nursing home of such a
description as the nursing home named
in the application; or
(b) that the nursing home is not
under the supervision of a person who is
a qualified medical practitioner and he
or a qualified nurse is not resident in the
home, or that there is not a proper pro-
portion of qualified nurses among the
persons having the superintendence of
or employed in the nursing of the
patients in the home; or,
(c) that in the case of a maternity
home it has not got on its staff a quali-
fied midwife and a qualified medical
practitioner; and
(d) that for reasons connected with
the situation, construction, accommoda-
tion, staff or equipment, the nursing
home or any premises used in connec-
tion therewith is or are not fit to be used
for a nursing home of such a description
as the nursing home mentioned in the
application or that the nursing home, or
premises is or are used or to be used for
purposes which are in any way improper
or undesirable in the case of such nurs-
ing home.”
NOT VALID
Thus, as per the provisions of Section 7
read with Section 5 of the Delhi Nursing
Homes Registration Act, medical negli-
gence is not a ground on which registra-
tion can be cancelled.
In the present case, medical negli-
gence was made a ground for cancella-
tion of the registration of Max Hospital,
which is illegal. Also, medical negli-
gence investigations are on by the
Delhi Medical Council which is yet to
finish them. A person is innocent till
proven guilty.
The other two provisions under
which Max’s licence was cancelled
include not fulfilling the requirement of
EWS patients (from the economically
weaker sections of society) and extra
dengue beds being used for non-dengue
patients. These were other deficiencies.
As the cancellation order is illegal, it
is liable to be set aside. The hospital
should file an immediate appeal
against the order before the Chief
Commissioner of Delhi (L-G) and get
it quashed.
—The author is president, Indian
Medical Association
In the present case, the supervising
authority, i.e., the Directorate General
of Health Services, Delhi, did not give
one month's notice to Max and had,
in fact, passed the cancellation order
in 16 days’ time. Thus, the said can-
cellation order is against the provi-
sions of the Delhi Nursing Homes
Registration Act, 1953.
PatentlyUnlawful
ARBITRARY CALL
The order of the Arvind Kejriwal government
has come in for widespread criticism
Theothertwoprovisionsunderwhich
Max’slicencewascancelledinclude
notfulfillingtherequirementofEWS
patientsandextradenguebedsbeing
usedfornon-denguepatients.There
wereotherdeficiencies.

The ministry of information and broad-
casting has issued an advisory to all
television channels barring them from air-
ing condom ads between 6 am and 10 pm.
The ministry advised them not to telecast
these ads as they were “inappropriate for
viewing by children”. The ads have been
given the time slot of 10 pm to 6 am. The
advisory comes after the Advertising
Standards Council of India (ASCI)
requested the ministry to take a call on
such ads and their telecast timing. The
ASCI had received several complaints
from consumers on the content of the co-
ndom ads and the council found such ads
inappropriate for viewing by kids.
Briefs
The National Green Tribunal
has clarified that there is no
restriction on chanting of
mantras and bhajans inside the
Amarnath cave shrine. The clari-
fication came after protests
against the decision. The green
court panel clarified that it had
not declared the entire area a
silence zone; instead, the restric-
tion applies only to the main
stairs leading to the holy cave.
The Tribunal also said that the
only restriction issued is that the
pilgrims should maintain silence
while standing in front of the
Amarnath Ji Maha Shivling.
NGT denies ban
on chanting in
Amarnath cave
—Compiled by Lilly Paul
The Delhi High Court has
refused to pass an interim
order on a plea for a stay on
rebel Janata Dal(United) leader
Sharad Yadav's disqualification
as a Rajya Sabha member.
Yadav, who was disqualified
from the Rajya Sabha along
with another rebel JD(U)
leader, Ali Anwar, may, howev-
er, draw allowances, perks and
retain his bungalow as an MP
but cannot attend the winter
session, Justice Vibhu Bakhru
ruled. The session will continue
till January 5 while the main
petition will be heard on March
1. Yadav had said in his plea
that he was not given a fair
hearing by chairman M
Venkaiah Naidu. He has also
moved court against the
Election Commission order
accepting the Nitish Kumar-led
JD(U)’s claim over the party’s
“arrow” poll symbol.
No condom ads during daytime,
says I&B Ministry
The Delhi Police’s
crime branch has
chargesheeted rebel
AIADMK (Amma)
leader TTV
Dhinakaran in a case
related to bribing
Election Commission
officials for allotment
of the “two leaves”
symbol of the undivid-
ed AIADMK.
Dhinakaran was allot-
ted the pressure cook-
er symbol a few days
ago. The Delhi Police
in its report has
detailed how
Dhinakaran had
allegedly sent `2 crore
through hawala opera-
tors to the EC officials
to get the party sym-
bol. In July, middle-
man Sukesh Chandra-
shekhar and three oth-
ers were charged in
the case. Chandra-
shekhar, who is in
judicial custody, had
allegedly negotiated
the bribe.
Sharaddenied
chancetoattend
wintersession
SC okays special courts
for guilty lawmakers
The Supreme Court has
approved the centre’s scheme
to set up 12 courts to deal exclu-
sively with criminal cases against
lawmakers and politicians. The
apex court has also directed that
the special courts be made oper-
ational from March 1. The gov-
ernment had said that the 12
courts were being set up for a
year at a cost of `7.80 crore and
further decisions regarding addi-
tional courts will be taken later.
The decision follows the apex
court directions of November 1
on a PIL filed by lawyer and BJP
leader Ashwini Kumar
Upadhyay for setting up of spe-
cial courts.
Rebel AIADMK leader chargesheeted

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Acts & Bills/ Financial Resolution and Deposit Insurance Bill 2017
FTER the shock and awe
of demonetisation, the
next word to be feared
from the bulwark of the
Union finance ministry is
the relatively unheard of
term—“bail-in”. This, its critics aver, is a
provision that will shake the very foun-
dation of public trust in the banking sys-
tem. It is contained in proposed legisla-
tion, the Financial Resolution and
Deposit Insurance (FRDI) Bill, 2017,
which has been cleared by the cabinet
and is currently before a parliamentary
committee which will submit its report
in the winter session of parliament.
So, what is a bail-in? In simple terms,
it is a process by which a bank, rendered
commercially unviable by mounting
debts, squares its balance sheets by tak-
ing over a substantial chunk of its depos-
itors’ money. Till now, we have heard of
the government “bailing out” ailing
banks. A “bail-in” is when depositors’
money is forcibly taken away from them
by an act of law for the same purpose.
PANIC-STRICKEN
Section 52 of the proposed FRDI Bill
incorporates the bail-in proviso and has
set off panic among those who are aware
of the larger implications of the new leg-
islation. While a bank, riddled with
mounting debts, can in future throw up
its hands, those depositors who have
reposed faith in it will have a lot to lose
and pay for. The bill does not specify the
quantum of depositors’ money that will
be secure or safe when a bank runs into
trouble but “it cannot exceed the insured
amount”, which is currently fixed at `1
lakh. So, for all the accounts and fixed
deposits you hold in a bank or its bran-
ches, the combined total compensation
entitlement will be a measly `1 lakh.
Or, if the bank is kindly disposed
towards its depositors, it can seize all
their deposits—less `1 lakh—and invest
the money in bonds or other instru-
ments without consent for a period of
time at a nominal interest of five per-
cent. But the bottom line is that deposi-
tors will have no access to their money
beyond the insured amount of `1 lakh.
Voices protesting the new law have
been rather delayed given that the bill
has been in the works since November
2014. But an online petition launched in
the first week of December on
Change.org by Mumbai-based Shilpa
Shree had secured over one lakh signa-
tures by December 12. It is primarily
addressed to Union Finance Minister
Arun Jaitley and members of the parlia-
mentary committee and implores the
government not to use the money of
“innocent depositors” to bail in misman-
aged banks. Other voices have begun to
surface on social media urging people to
protest against the bill.
SMALL DEPOSITORS
CPI(M) general secretary Sitaram
Yechury has said that his party is
opposed to the bill because small depos-
itors will eventually be made to pay for
the fault of banks. He said: “The govern-
ment’s ‘bail-in’ is to limit the amount of
hard-earned money that depositors can
get back from banks. This will have seri-
ous consequences on those with bank
savings. After writing off loans of over
`2 lakh crore of rich defaulters, small
The Great
Bank LootThisproposedlaw,clearedbythecabinetandbefore
aparliamentarypanel,willleadtoabail-inof
unviablebanksusingdepositors’money.Willthey
bemadetosufferinthenameofnationalinterest?
By Ajith Pillai
A UNSUSPECTING VICTIMS
Can the common man no
longer expect a secure future?

depositors’ money will now be stolen to
pay for it?”
On his part, Jaitley has been at pains
to allay the fears of depositors over the
new bill. He has stated that the FRDI
Bill is more “depositor friendly” than in
other countries where the bail-in clause
is currently operational. He has also
been quoted as saying that the bill is
likely to undergo changes. “The parlia-
mentary committee can offer sugges-
tions and thereafter it has to come back
to the cabinet. The cabinet will put it in
the public domain and ask for sugges-
tions as well. So, I think a lot of correc-
tions will take place,” he said. But this
explanation has obviously not addressed
public apprehensions adequately.
A former finance ministry official
told India Legal that such fears are not
unwarranted: “Our trust in banks is
based on the belief that whatever we
deposit there is safe and can be with-
drawn along with the accumulated
interest. Generations of Indians have
planned their lives based on the
fiduciary trust we repose in our banks,
particularly PSU banks. The fear is that
with the passing of the bill confidence
will be broken. Keeping money in a
bank will come with a risk element
which is a matter of concern in a coun-
try like India.”
He also feels that people have begun
to take official assurances with a pinch
of salt given the bad experience they
have had with demonetisation and GST.
“I have met people who are worried
about the manner in which the bill will
be implemented. They wonder if deposi-
tors will eventually be made to suffer in
the name of national interest,” he said.
DEVELOPED WORLD PRACTICE
According to the government, the bill is
very much in keeping with banking
practice followed in the developed world
post the 2008 global meltdown.
According to it, taxpayers and the gov-
ernment must not be expected to absorb
losses incurred by a bank through its
financial failures. Shareholders and
creditors must also bear the burden.
This sounds reasonable and justified.
But then, you have to also weigh in the
following factors—quite unknown to
people unfamiliar with banking opera-
tions: (a) as an account holder you are
by definition a creditor, (b) monies
deposited are like unsecured loans given
by you to the bank, (c) the bank offers
no security for your deposits, and (d)
under the proposed regime you, along
with shareholders, may have to forsake a
part of your money should the bank fail.
Currently, it is the Deposit Insurance
and Credit Guarantee Corporation, un-
der the Reserve Bank of India that in-
sures depositors to a personal maximum
of `1 lakh. However, sources in the fin-
ance ministry reveal that this amount
might be upgraded as and when the bill
is tweaked. But would that be enough to
inspire confidence among depositors? Or
will bank deposits metamorphose from a
safe investment to a risk-prone one?
Over the years, faith in banks and the
Life Insurance Corporation of India was
built on trust and confidence rather
than on any explicit guarantee of safety.
This was primarily because it was the
RBI, and hence by extension, the gov-
ernment, which looked after the inter-
ests of depositors. But that will change
as and when the bill is passed by parlia-
ment. The central bank’s role would
then be limited to fixing interest rates,
ensuring availability of currency and
Accordingtothegovernment,thebillisin
keepingwiththepracticefollowedinthe
developedworldpostthe2008global
meltdown.Accordingtoit,shareholders
andcreditorsareexpectedtobearthe
burdenoflossesincurredbyabank.
Anil Shakya
UNI

implementing the broader monetary po-
licy. The key function of debt restructur-
ing and dealing with sick banks and in-
surance companies will be the mandate
of the Financial Resolution and Deposit
Insurance Corporation (FRDIC) which
will be set up under the new legislation.
The proposed Corporation is one
that will exercise its powers to order a
bail-in as and when it deems fit. It can
also recommend liquidation, merger or
takeover of a financial institution if it
finds it is financially unstable. Bank
unions are opposed to the bill and the
setting up of the FRDIC as they allege
the latter will have sweeping powers and
can be dictated to by the government.
FRDIC BOARD
As per the bill, the board of the FRDIC
may have representation from the RBI,
Securities and Exchange Board of India,
the Insurance Regulatory and Develop-
ment Authority of India, and the Pen-
sion Fund Regulatory and Development
Authority. But six of the 11 members
will be nominated by the government,
giving it control over the Corporation
and the crucial decision-making process.
The United Forum of Bank Unions
has already written to Jaitley demand-
ing that the FRDI Bill be withdrawn.
“The objective of this bill is obviously to
heavily empower the new authority
[FRDIC] with sweeping powers to dis-
mantle and erase public sector financial
institutions like banks and insurance
companies and hence, it is apparently
draconian. We demand the withdrawal
of this bill,” said its representation.
Thomas Franco, general secretary of
the All India Bank Officers’ Confed-
eration, raised another concern. He told
India Legal: “The new bill will not only
end up destabilising PSU banks which
constitute over 72 percent of the bank-
ing sector but will also signal the end of
cooperative banks and Regional Rural
Banks (RRBs) which serve a huge mar-
ginalised population. I see this bill as
nothing more than a step towards total
privatisation of the banking system. You
have one authority, the FRDIC, to
declare a bank as being sick. Then the
same authority will have the powers
to take over the sick bank and hand it
over to another entity which will most
likely be in the private sector. This may
not happen immediately, but it is bound
to happen.” According to him and oth-
ers, the FRDI Bill seems to be a move by
the government to undo bank nationali-
sation that was introduced in 1969. That
is when the government of the day took
over banks and decided that public sec-
tor banks and financial institutions
should also serve the marginalised and
Acts & Bills/ Financial Resolution and Deposit Insurance Bill 2017
W
as the FRDI Bill 2017 a brain-
child of the government? Or was
it inspired by a desi economist
scrolling ancient Hindu texts for a solu-
tion to India’s ailing banking system? The
controversial bill, it is reliably learnt, has
nothing Indian about it.
In fact, it was kick-started in
November 2014 when Prime Minister
Narendra Modi attended the G-20 sum-
mit in Sydney. It was there that he com-
mitted India to implement a proposal
drafted by the Financial Stability Board
(FSB), an international body formed in
2009 after the global meltdown the previ-
ous year.
The FSB monitors and makes recom-
mendations about the global financial
system. It had drafted a document—“The
Key Attributes of Effective Resolution”—
which it wanted other nations to adopt. It
is this document that pushed for a sys-
tem where sick banks are not bailed
out by governments but “bailed in” by
their depositors.
The FRDI Bill has the stamp of the
FSB on it. A 10-member committee
headed by Ajay Tyagi, additional secre-
tary (investment), department of eco-
nomic affairs, which drafted the bill, has
acknowledged this in its introductory
note. To quote: “The committee studied
guidances issued by the Financial
NotHomegrown
A COPY-PASTE JOB?
Narendra Modi at the Sydney G-20 summit
where the FRDI Bill was conceived
PIB

weaker sections and not merely run
for profit.
BANK NPAS
Today, the once healthy banking sector
is crippled with mounting debts and
non-performing assets (NPAs). But who
is responsible for this? According to the
RBI’s latest Financial Stability Report,
88.4 percent of NPAs are due to large
borrowers with exposure of `5 crore or
more. Also, 25 percent of these NPAs is
the creation of 12 large borrowers and
banks who liberally lent to them without
due diligence. But should depositors be
punished for the sins committed by oth-
ers? “We are heading towards an unfor-
tunate situation where the poor deposi-
tor has to bail out the big defaulters.
This is most unfair,” said Franco.
The prognosis does not look encour-
aging for India which is a savings-based
economy. In the absence of any reliable
social security net, interest earned from
bank deposits is what a vast section of
people have so far relied on to tide over
a rainy day or during their retirement.
Where do they now invest their hard-
earned money? All options, including
mutual funds and playing the stock
market, come with hidden risks.
By all indications, should the bill be
passed, the days of putting your feet up
and earning an assured income from
your bank deposits will be over.
Stability Board and to the extent
suitable, drafted the bill to be consistent
with the key attributes given in those
guidances.” The draft bill, according to
sources in the finance ministry, is
virtually borrowed from the FSB
recommendations.
But critics of the bill point out that the
FSB recommendations were drawn
up by US experts with their own banking
system in mind. A bank official said:
“While in India, over 70 percent banks
are government-owned, in the US they
are all in the private sector. Moreover,
American banks are run with maximising
profits as their priority, while our banks
also have a social responsibility to fulfil.
Entirely different parameters and priori-
ties are involved, so what suits them can-
not suit us.”
According to him, sufficient home-
work was not done before drafting the
bill. There was also the pressure from the
FSB which was monitoring the progress
of nations which had agreed to banking
reforms during the G-20 Summit. It is
perhaps to report progress that the draft
bill was submitted to the government in
September 2016 without consulting all
the stakeholders, including bank unions
and associations.
It now remains to be seen if the par-
liamentary committee studying the bill will
recommend changes and whether these
will be incorporated in the revised version
of the proposed legislation.
“ThenewBillwillnotonlyendupdestabilisingPSU
bankswhichconstituteover72percentofthe
bankingsectorbutwillalsosignaltheendofcoop-
erativebanksandRegionalRuralBankswhichserve
ahugemarginalisedpopulation.ThisBillisnothing
morethanasteptowardstotalprivatisationofthe
bankingsystem.”
—ThomasFranco,generalsecretary,AllIndiaBank
Officers’Confederation
“Thegovernment’s‘bail-in’istolimittheamount
ofhard-earnedmoneythatdepositorscangetback
frombanks.Thiswillhaveseriousconsequences
onthosewithbanksavings.Afterwritingoff
loansofover`2lakhcroreofrichdefaulters,
smalldepositors’moneywillnowbestolen
topayforit?”
—SitaramYechury,formerMemberofParliament
andCPI(M)generalsecretary
GAME CHANGER
The meltdown in
2008 had a deep
and profound
impact on banking
practices across
the world
UNI

Supreme Court/ Plea Challenging Section 497
DISCRIMINATORY pro-
vision has survived in the
Indian Penal Code (IPC)
for over 150 years in the
garb of promoting a ben-
eficial objective. Just why
Thomas Macaulay, the author of the
IPC which was enacted in 1860, found it
necessary to exempt a married woman
from the offence of adultery while mak-
ing the man having sex with her without
her husband’s consent criminally liable
for adultery is unclear.
Macaulay himself had acknowledged
that the IPC was full of defects which he
did not see. But what is amazing is that
such a blatantly discriminatory provi-
sion—Section 497—has survived in the
IPC despite vast changes in social mores
and thinking over a century and a half.
That Macaulay might have reflected
Victorian morals which are not in sync
with contemporary reality is a reason-
able comment on the history of the pro-
vision. That Section 497 is akin to Sec-
tion 377 IPC, which criminalises “unnat-
ural sex” between two consenting adults
and which has similarly survived the
vicissitudes of time, is a serious com-
mentary on our resistance to change.
Therefore, when the Supreme Court
decided on December 8 to issue notice
in a petition challenging the constitu-
tional validity of Section 497, it app-
eared as if it was a sitting duck, waiting
to be struck down by the apex court.
UNFAIR SECTION?
Section 497 reads: “Whoever has sexual
intercourse with a person who is and
whom he knows or has reason to believe
to be the wife of another man, without
the consent or connivance of that man,
such sexual intercourse not amounting
to the offence of rape, is guilty of the off-
ence of adultery, and shall be punished
with imprisonment of either description
for a term which may extend to five
years, or with fine, or with both. In such
case, the wife shall not be punishable as
an abettor.”
The petition also challenges the
validity of sub-section (2) of Section 198
of the Code of Criminal Procedure
(CrPC), which deals with prosecution
for offences against marriage. This pro-
vision states that no person other than
the husband of the woman shall be
deemed to be aggrieved by an offence
punishable under Section 497 or Section
498 of the IPC.
A proviso to this section says that in
the absence of the husband, some per-
son who had taken care of the woman
on his behalf at the time when such
offence was committed may, with the
leave of the court, make a complaint on
his behalf. Section 498 deals with the
offence of enticing or taking away or
detaining with criminal intent, a mar-
ried woman.
The petition, filed by Joseph Shine,
an Indian citizen, presently employed in
Italy, argues that when sexual inter-
course, implying adultery, takes place
Sexual
Discrimination
ThissectionoftheIndianPenalCode,whichseekstopunish
onlythemanforadultery,comesunderreviewbytheapex
courtforitsdefianceofgenderequality
By Venkatasubramanian
A
Anthony Lawrence

with the consent of both parties, there is
no good reason for excluding one party
from the liability. It also argues that
since sexual privacy is an integral part of
the right to privacy, as held by the Sup-
reme Court’s nine-judge constitution
bench this year, excluding women from
prosecution and privileging only the
aggrieved husbands for this purpose is
bad in law.
OTHER PRECEDENTS
Section 497 IPC was challenged before
the Supreme Court earlier in three
cases. The first challenge was in Yusuf
Abdul Aziz v State of Bombay (1954).
The second was in Sowmithri Vishnu v
Union of India (1985) and the third was
V Revathi v Union of India (1988). The
recent petition submits that the Sup-
reme Court’s decisions in these cases—
repelling the challenge to Section 497
IPC—were erroneous.
In 1971, the 42nd Law Commission
Report recommended removal of the
exemption provided for women from
being prosecuted for adultery, and
reduction of the punishment from five
years’ to two years’ imprisonment, for
the same.
In 2003, the Justice VS Malimath
Committee report suggested that the
object of Section 497 IPC was to pre-
serve the sanctity of marriage, as society
abhors marital infidelity. Therefore, the
Committee said, there is no good reason
for not meting out similar treatment to
the wife, who has sexual intercourse
with a married man.
The Committee, therefore, suggested
amending the said provision to the eff-
ect that whoever has sexual intercourse
with the spouse of another is guilty
of adultery.
In 2011, the Supreme Court observed
in W Kalyani v State of Tr. Inspector
of Police and Another (2012) that Sec-
tion 497 IPC not only shows a strong
gender bias, but makes the position of a
married woman almost a property of
her husband.
In 2012, a working group of the Uni-
ted Nations established by the Geneva-
based Human Rights Council in Sep-
tember 2010 urged member nations to
eliminate laws that classify adultery as a
criminal offence.
In 2015, the Supreme Court of South
Korea struck down Article 241 of the
Criminal Act, which stipulates impris-
onment for two years or less for adultery
and interdiction. The judgment held
that the impugned provision was capa-
ble of excessive prohibition, and infrin-
ged on people’s right to self-determina-
tion and privacy.
GROUNDS OF CHALLENGE
The petition questions the assumption
in the impugned provisions that sexual
intercourse with an unmarried woman
cannot constitute adultery, and that the
consent of the husband of the married
woman would decriminalise adultery.
The petition argues that persons situat-
ed similarly cannot be subject to dis-
criminatory or dissimilar treatment.
The impugned provisions, it submits,
imply that men are arbitrarily punished
and women not for committing the
same offence, and therefore, are unjust,
illegal and unconstitutional.
The Supreme Court had earlier
upheld the constitutionality of Section
497 because it considered it a beneficial
provision under Article 15(3) of the
Constitution, which states: “Nothing in
this article shall prevent the State from
making any special provision for women
and children.” Article 15(3), which per-
mits affirmative action in favour of
women, is not meant to exempt married
women from the liability of punishment
in criminal offences, the petition claims.
“The assumption that women are inca-
pable of committing adultery is irra-
tional and perverse. Such an assumption
is part of institutionalised discrimina-
tion,” the petition further argues.
Questioning the classification of
married women as a special category
and exempting them from the offence of
adultery, the petition says there is no
purpose sought to be achieved by the
legislation having a rational nexus with
this exemption.
On the contrary, the impugned pro-
visions discriminate against women as
they cannot prosecute or file a com-
TheSupremeCourtbenchofChief
JusticeDipakMisra(aboveleft)and
JusticesAMKhanwilkarandDY
Chandrachud(aboveright)foundthat,
primafacie,Section497grantsreliefto
thewifebytreatingherasavictim.

plaint because Section 198(2) of the
CrPC expressly lays down that only the
aggrieved husband of the woman in an
adulterous relationship with another
man, can do so. This means that a wo-
man whose husband is committing
adultery has no remedy under the law.
Wives of those men committing
adultery are also equally aggrieved and
therefore, excluding them from the pur-
view of initiating criminal prosecution
has no rhyme or reason, the petition
points out.
Such exclusion is unjust, illegal and
arbitrary, and violative of fundamental
rights under Articles 14, 15 and 21 of the
Constitution, it says.
PROPERTY OF MEN?
The petition also challenges the exclu-
sion of adulterous behaviour which has
the consent of the husband of the mar-
ried woman, and that of unmarried wo-
men from the purview of the Act. The
essential premise of the provision is that
women are the property of men, the
petition further contends.
In all the three cases in which Sec-
tion 497 was challenged, the Supreme
Court presumed that the man was the
seducer, and not the woman. “This is
highly incomprehensible. There is no
scientific data or material to support
this statement. In the current social sit-
uation, this observation is irrelevant,”
the petition submits.
The petition contends that on a glob-
al level, there have been continuous con-
cerns about decriminalising adultery.
Adultery is not an offence in the UK and
in most European countries. Though in
some states of the US adultery is consid-
ered an offence under some provisions,
they are not put to use. The European
Parliament, vide a resolution on May 24,
2007, on human rights in Sudan, con-
demned the severe punishment im-
posed for adultery, and stated that it vio-
lated basic human rights and interna-
tional obligations.
PRIMA FACIE FINDINGS
On December 8, the Supreme Court
bench of Chief Justice Dipak Misra and
Justices AM Khanwilkar and DY
Chandrachud, which heard the petition-
er’s counsel, Kaleeswaram Raj, found
that prima facie, Section 497 grants
relief to the wife by treating her as a vic-
tim. “It is also worthy to note that when
an offence is committed by both of
them, one is liable for the criminal off-
ence but the other is absolved. It seems
to be based on a societal presumption.
Ordinarily, the criminal law proceeds on
gender neutrality, but in this provision,
as we perceive, the said concept is ab-
sent,” the bench observed in its order.
The bench also took note of the fact
that the fulcrum of the offence is des-
troyed once the consent or the con-
nivance of the husband is established.
Viewed from the said scenario, the pro-
vision really creates a dent in the inde-
pendent identity of a woman, when the
emphasis is laid on the connivance or
consent of the husband, the bench held.
This is tantamount to subordination of a
woman while the Constitution confers
equal status, the bench added.
“A time has come when the society
must realise that a woman is equal to a
man in every field. This provision, prima
facie, appears to be quite archaic. When
the society progresses, and the rights are
conferred, the new generation of thou-
ghts spring, and that is why, we are in-
clined to issue notice,” the bench obser-
ved, directing the listing of the case after
four weeks.
Section 497 IPC is likely to be
declared unconstitutional if one were to
go by the Supreme Court’s judgment in
Anuj Garg v Hotel Association of India
(2007), which held that laws which are
based on sexual stereotypes suffer from
the vice of unconstitutionality.
So, going by the bench’s observations
on December 8, Section 497 IPC and
198(2) CrPC seem to be on their
way out.
Section497waschallengedinthe
SupremeCourtearlierinthreecases.The
recentpetitionsubmitsthattheCourt’s
decisionsinthesecases—repellingthe
challenge—wereerroneous.
GLOBAL TRENDS
A man being caned for adultery
at Al Abrar mosque in Banda
Aceh, Indonesia
Supreme Court/ Plea Challenging Section 497
UNI

the lawyers and to ensure a humble rela-
tion between the Bar and the Bench.”
The post of the SCBA president is con-
sidered prestigious and dignified in legal
circles and is treated with great respect.
Winners of other posts included
Sukumar Pattjoshi, senior advocate in
the Supreme Court (vice-president);
Vikrant Yadav, advocate (Hony
Secretary); Rahul Kaushik, advocate
(joint secretary); Maneesh Dubey,
advocate (treasurer) and Piyush Kanti
Roy, advocate (joint treasurer).
Officially, the SCBA is entrusted with
the duty to uphold, maintain and con-
solidate the constitutional values of
democracy, and uphold the independ-
ence of the judiciary.
According to an SCBA circular, nine
categories of members are entitled to vote
in these polls. They are: (1) Those who
have been allotted chambers in the apex
court; (2) members on the app-roved
waiting list for allotment of a chamber;
(3) members who have 50 appearances
per year in the last two years; (4) mem-
bers appearing for state governments or
the centre and having 50 appearances in
the last three years; (5) members who
have entered the Court with the
Proximity Card for 60 days in 2016; (6)
senior advocates staying in Delhi and
HE Supreme Court Bar
Association’s (SCBA) annual
polls on December 13 saw
fierce competition and lobby-
ing and resulted in Vikas
Singh, a senior advocate in the Court,
being elected president. Singh had also
served as Solicitor General of India
under the UPA government.
In a message to APN News (India
Legal’s sister concern), Singh said: “I
want to make the Bar strong and effi-
cient enough to protect the interests of
“IwanttomaketheBarstrongandeffi-
cientenoughtoprotecttheinterestsof
thelawyersandtoensureahumble
relationbetweentheBarandtheBench.”
—VikasSingh,president,
SupremeCourtBarAssociation
NCR; (7) members who are Advocates-
on-Record and have 20 filings per year
in the last two years; (8) Non-AoR mem-
bers who are on the amicus curiae panel
in the last two years; and (9) Non-AoR
members who are on the “mediators”
panel in the last two years.
Other senior advocates who
contested for the post of president this
year included Dushyant Dave and out-
going SCBA president Rupinder Suri. .
Dave was SCBA president in 2014-15
and 2015-16.
Supreme Court/ Bar Association Polls
VikasSingh
isNewSCBA
President
Theoffice-bearersofthisprestigious
Associationwilllookafterthe
interestsofitsmembersand
harmoniserelationswiththeBench
By Shekhar Mishra
T President: Vikas Singh, senior
advocate, Supreme Court
Vice-President: Sukumar Pattjoshi,
senior advocate, Supreme Court
Hony Secretary: Vikrant Yadav,
advocate
Joint Secretary: Rahul Kaushik,
advocate
Treasurer: Maneesh Dubey, advocate
Joint Treasurer: Piyush Kanti Roy,
advocate
SCBAoffice-bearers
Anil Shakya

Supreme Court/ Plea on Politicians’ Seats
Game of
Two ThronesApetitionhassoughttorestrictcandidatesfrom
simultaneouslycontestingfromtwoseats
asitmisleadsvotersofoneconstituencyand
isawasteoftimeandmoney
By Puneet Nicholas Yadav
WELL-ENTRENCHED
Prime Minister Narendra Modi vacated his
Vadodara seat in favour of Varanasi (above) follow-
ing his election from both constituencies in 2014
AST week, a three-judge
bench of the Supreme Court
headed by Chief Justice Dipak
Misra sought the help of
Attorney General KK Venu-
gopal in a PIL seeking a res-
triction on politicians from simultane-
ously contesting parliamentary or
assembly elections from two seats.
The PIL, filed by Delhi BJP spokesper-
son and advocate Ashwini Kumar
Upadhyay, raised pertinent questions on
why the Representation of the People
Act, 1951, allowed candidates to contest
from two seats when provisions of the
same law required the candidate to
vacate one if he managed to win from
both constituencies.
The practice of politicians, especially
chiefs of major political parties and
aspirants to the office of prime minister
or chief minister, contesting from two
parliamentary or assembly constituen-
L
UNI

other political warhorses.
The PIL before the Supreme Court
challenges the practice on a few key
grounds—a) betrayal of the trust of the
electorate; b) increasing the cost of the
poll process; and c) delays in develop-
ment works of the constituency that
faces a by-poll due to imposition of the
Model Code of Conduct.
U
padhyay told India Legal: “One
person, one vote and one candi-
date, one constituency is the
dictum of democracy. By allowing a can-
didate to contest from two constituen-
cies, Section 33 (7) of the RP Act vio-
lates this dictum and so I have urged the
Supreme Court to declare the Section
void. A voter casts his ballot in favour of
a candidate based on trust. If the
candidate then ditches the voters of
cies is not new to the Indian electoral
system at all.
In May 2014, Narendra Modi—then
the prime ministerial candidate of the
BJP—chose to contest the Lok Sabha
election from two constituencies,
Vadodara in his home state of Gujarat
and Varanasi in politically crucial Uttar
Pradesh. Predictably, Modi won com-
prehensively from both seats but a “call
from Maa Ganga” made him retain the
Varanasi seat and vacate Vadodara. As
required by law, a by-election was
forced on the electorate of Vadodara
months later.
Modi is part of an elite league of
politicians who have simultaneously
contested successfully from two con-
stituencies and then ditched the voters
of one seat in favour of those from the
other. This practice was followed in the
past by the likes of former Prime
Minister Indira Gandhi, outgoing
Congress president Sonia Gandhi,
Rashtriya Janata Dal chief Lalu Prasad
Yadav, former Uttar Pradesh chief
ministers Mulayam Singh Yadav and
his son, Akhilesh Yadav, and many
one constituency in order to retain the
other constituency, then he also betrays
this trust.”
Upadhyay’s PIL isn’t the first chal-
lenge to this practice of politicians con-
testing from more than one constituen-
cy. In fact, prior to 1996, a candidate
was allowed to contest simultaneously
from as many seats as he desired.
Subhash Kashyap, former secretary-gen-
eral of the Lok Sabha and an expert on
constitutional matters, told India Legal:
“Theoretically, under the Constitution, a
candidate can contest from all the seats
that are open for election. This legal
anomaly prevailed till 1996 when the RP
Act was amended to put a cap of two
constituencies for a candidate. However,
this too is absurd, improper and
illogical. Why should a candidate be
allowed to mislead the voters of one
constituency when it is clear from the
Thepoliticalbrasshasnot been
inclinedtobanthepractice
altogetherasitgivesleadersof
allpoliticalhuesabuffer.
ENSURING VICTORY
Former PM Indira Gandhi (left) and former
Odisha CM Biju Patnaik (above) also
simultaneously contested elections from
more than one seat
hearty-india.com orissalinks.com

beginning that if he is victorious from
both seats he will have to vacate one
soon after being declared the winner?”
The amendment to the RP Act in
1996 was possibly the result of the then
federal government and members of
parliament accepting a recommendation
made in May 1990 by the Dinesh Gos-
wami Committee on electoral reforms.
This 11-member Committee was consti-
tuted by the Union law ministry in 1990
and had Goswami, then the Union law
minister, as chairman and veterans like
BJP’s LK Advani, late Congress leader
HKL Bhagat, the CPI(M)’s Somnath
Chatterjee, and former chief election
commissioner SL Shakdher among its
members. It first recommended that the
practice of allowing a candidate to con-
test from multiple seats be banned and
instead, a cap of a maximum of two con-
stituencies be instituted.
“The Committee took note of the
problems created by persons contesting
elections from several constituencies in
the absence of any restrictions in that
regard. The Committee recommends
that a person should not be allowed to
contest elections from more than two
constituencies of the same class,” the
Goswami report had said.
A
s recommended by the Goswami
Committee, the RP Act was
amended. However, a few years
later, the Law Commission, in its
170th report, which was submitted in
1999, disagreed with the Goswami
Committee and went a step further to
recommend that candidates not be
allowed to contest from more than one
seat in any election.
The Law Commission had recom-
mended that Section 33 of the RP Act
be amended and a new sub-section 7 be
introduced. Its report said: “It was
sought to be provided that no person
shall be entitled to contest simultane-
ously from more than one parliamentary
or assembly constituency, as the case
Playingitsafe
A host of political leaders, cutting
across party lines, has contested
simultaneous elections from
multiple constituencies
M
uch before the RP Act was
amended to restrict candi-
dates from contesting from
multiple constituencies, the late NT
Rama Rao, an icon of Telugu cine-
ma and founder of the Telugu
Desam Party, repeatedly fought
elections from more than one seat.
When NTR made his political debut
in 1983, he contested from the
Gudivada and Tirupati constituen-
cies of Andhra Pradesh and won
both seats. In the next assembly
elections, NTR successfully contest-
ed from Gudivada, Hindupur and
Nalgonda.
NTR’s feat of simultaneously
contesting from three assembly
seats has arguably been surpassed
only by former Odisha chief minister
Biju Patnaik. After splitting from the
Congress and forming the Utkal
Congress, Patnaik simultaneously
contested from four assembly seats
in Odisha and one Lok Sabha seat
in 1971. Though the Utkal Congress
made an impressive debut in the
Odisha assembly in 1971, Patnaik
surprisingly lost all the five elections
he contested that year.
In the case of Indira Gandhi, after
her stunning defeat in the 1977 gen-
eral election that was called after the
Emergency, she famously contested
the 1980 Lok Sabha polls from
Medak in Andhra Pradesh and her
traditional seat of Rae Bareli in Uttar
Pradesh. She won both.
Years later, in a bid to prove her
political acceptability and pan-India
appeal, Congress president Sonia
Gandhi – who was then facing
attacks from the Opposition and
some leaders of her own party over
her “foreign origin”—successfully
contested the 1999 Lok Sabha elec-
tions from Amethi in UP and Bellary
in Karnataka.
Supreme Court/ Plea on Politicians’ Seats
MASS APPEAL
Outgoing Congress chief Sonia Gandhi with
supporters in Amethi in 2014
UNI

India Legal 25 December 2017

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