India Legal 27 May 2019

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
May 27, 2019
A public interest petition filed before the Supreme Court asks that consecutive rather than
concurrent sentences be awarded to those convicted of multiple offences.
Knee-jerk,“tough on crime” over-reliance on incarceration as a stand-alone panacea for
crime is unsustainable and counter-productive, writes Prof G Mohan Gopal
CrimeandPunishment
Online Entertainment:
The threat of censorship
Prof Upendra Baxi on Judges
Resiling from Decisions

| INDIA LEGAL | May 27, 2019 3
ECAUSE of the alarming spread of fake
news—another phrase for the dissemi-
nation of deliberately concocted disin-
formation to propagate an ideology,
ruin a reputation, distort history, falsify
irrefutable eyewitness accounts—social media,
the mothership on which such garbage is loaded
and transported, has justly been vilified as the
scourge of the century. An all-consuming plague.
The apotheosis of Orwell’s dystopian 1984.
Conversely, it is also hailed as an antidote to
news and propaganda monopolies of govern-
ments and information oligopolies—a platform
from which alternative viewpoints can be heard,
a safe haven for upright and truth-seeking jour-
nalists who have been bounced from their main-
stream media jobs by bosses displeased by their
obsession for seeking the truth, a relatively inex-
pensive, affordable digital substitute for electron-
ic transmission to a worldwide audience. A tool
for the blossoming of endless Arab Springs.
But then, how do we know which is the
truth—the argument or the counter-argument?
The solution is not as difficult as it sounds. The
simple word for it is research. Evidence-backed
fact-finding and observation. It is the same
process that led to the dropping of fake news
such as that the earth is flat or that the sun
revolves around the earth or that Lord Ganesha
was the product of plastic surgery.
Newspaper reportage or TV journalism not
too long ago was pure fact-finding. You went
sniffing for the facts or tried to dig them out
from where they lay buried and earned, there-
fore, the names “newshounds” or “muckrakers”.
That was called old-fashioned reporting. The
point of view emerged from the facts rather than
vice versa unless, of course, you were a pam-
phleteer. In today’s world, fact-checking—or real
reporting— has assumed a new dimension.
Instead of “newsgathering” a breaking story,
today’s fact-checkers have an entirely new
dimension to their métier: They busy themselves
with copious research into whether published or
broadcast material in the mainstream or social
media, or public utterances by politicians, are
indeed true.
True, these fact-checkers, despite their fastidi-
ousness and devotion to letting the chips fall
where they may, and their understanding of mor-
phed and photo-shopped disinformation and
lies, do not have the same audience as the paid
armies of disinformation specialists and trolls.
But they are the harbingers of a brave new world
of muckrakers. As more and more people pay
attention to their websites and portals, the
Goliaths of prevarication, mendacity, falsehoods
and deception will face an increasing number of
slings and shots to deal with.
Fact-checking, thanks to The New York Times,
Washington Post, and CNN, has risen exponen-
tially in the US ever since Donald Trump’s White
House turned into a fake news factory. India,
with social media users who probably exceed the
population of America, is catching up with this
trend, and faster than most people would imag-
ine. YouTube digital platforms in all languages
are full of sxposés and critiques of the foibles and
fantasies and often outright lies of mainstream
magazines, newspapers and broadcast outlets.
The leading fact-check giant is AltNews with a
skeleton staff and a genius for research. AltNews,
once confined to small corners of the web, has
now earned nationwide respect with its editors
much in demand on popular talk shows. But
AltNews does not need that publicity. Today,
when AltNews speaks, people listen because its
credibility and devotion to its mission have been
beyond reproach.
As fake news has multiplied exponentially
this election season, so have investigations by
AltNews. Hopefully, this scourge will retreat
after the elections are over. As a tribute to this
organisation and its editors, I reproduce in the
next four pages excerpts from their various
posts—AltNews’ Arjun Sidharth’s round-up of
political misinformation that dominated the
social media in poll season:
THE NEW MUCKRAKERS
Inderjit Badhwar
B
Newspaper
reportageorTV
journalismnottoo
longagowaspure
fact-finding.You
wentsniffingforthe
factsortriedtodig
themoutfrom
wheretheylay
buried.In
today’sworld,
thefact-checkers
busythemselves
withcopious
researchinto
whetherpublished
orbroadcast
materialinthe
mainstreamor
socialmedia,or
publicutterancesby
politicians,are
indeedtrue.
Letter from the Editor

Fake newspaper clip with fake quote from
Mamata Banerjee.
A purported newspaper clipping of a popular
Bengali daily (Bartaman) was shared on social
media with its headline reading: “Give me 42
seats & I’ll show you how to make the Hindus
cry: Mamata.” The image had also circulated
on WhatsApp.
AltNews found that the image was photo-
shopped. A careful glance at the clipping was
sufficient to reveal that the image had been mor-
phed. The font, size and colour of the words
“Hindu” and “cry” do not match the words in the
rest of the sentence. They are not in perfect
alignment, are larger than the other words and
are in a deeper shade of black. Moreover, some
words were replaced from the original image.
False claim of buildings in Italy owned by
Gandhi family.
A man points at magnificent European architec-
ture and claims that Congress President Rahul
Gandhi owns the lavish property. “He has looted
India and bought these buildings in Italy,” the
man says in Gujarati. This video was circulated
widely on social media. The over one-minute clip
shows a man cautioning people against Rahul
Gandhi who has bought three extravagant build-
ings in Italy with India’s money and gets paid
hefty rent.
The claim was not only false but ludicrous.
The buildings showcased in the video are a part
of a city square—Piazza Castello—in Turin, Italy.
The square-shaped landmark houses museums,
theatres and palaces, including the Royal Palace
of Turin built in the 16th century. Several of the
architectural complexes are world heritage sites
protected by UNESCO. AltNews’ fact-check can
be read here.
False claim of PM Modi abusing at a rally.
“What kind of language is this Mr. PM? Does it
beholds the Prime Minister of the country to use
profanity and that too publicly? Shocking
beyond belief!! Have some respect for the chair, if
nothing else.”
The above message was tweeted by Gaurav
Pandhi, along with a video which has been
superimposed with the words “Modi said BC at a
rally”. Pandhi is associated with the Congress
Party. The video was shared widely not only on
social media platforms but also on WhatsApp,
with the narrative that the prime minister had
used profane language.
The assertion that Prime Minister Narendra
Modi uttered the word “bh******” at the rally, is
false. PM Modi had used the words “thavan(i)
chhe”, which he can be heard uttering the second
time in the video clip, and which has been
wrongly interpreted as “bh******”. “Thavan(i)
chhe” roughly translates to “Will happen/going to
happen.” The classic usage is “thavani chhe”, but
Modi says “thavan chhe”, which is colloquial
usage. Repeatedly playing the word “thavan(i)
chhe”, as was done in the video clip, creates the
illusion that Modi said “bh******”.
False claim of BJP candidate from Bengal
dressed up as Hanuman.
TMC supporter Garga Chatterjee tweeted photo-
graphs of a man dressed as Hanuman and said
that he was “Jagannath Sarkar, BJP MP candi-
date from Ranaghat” in West Bengal (archive).
The claim was circulated widely on Facebook
and Twitter.
The photographs viral on social media depict-
ed the BJP’s recent rally in West Bengal’s Rana-
ghat constituency. Dilip Ghosh, president of the
BJP WB unit, had shared the images on April 22
with the caption “Roadshow with Ranaghat Lok
Sabha constituency candidate Jagannath Sarkar”.
Ghosh had uploaded several photographs,
including the ones where a man dressed as
Hanuman can be seen seated atop a jeep. Sarkar
was NOT dressed as Hanuman.
Misinformation about Congress leaders pos-
ing with the same woman.
A tweet by Renuka Jain, who is followed by
Theleading
fact-checkgiantis
AltNews(above)
withaskeletonstaff
andageniusfor
research.AltNews,
onceconfinedto
smallcornersofthe
web,hasnow
earnednationwide
respectwithits
editorsmuchin
demandonpopular
talkshows.Today,
whenAltNews
speaks,people
listenbecauseits
credibilityand
devotiontoits
missionhavebeen
beyondreproach.
4 May 27, 2019

Modi, has gained traction not only on Twitter but
also on Facebook (archive). In her tweet, Jain
claimed that the Congress party had used the
same elderly woman for all their photoshoots.
“Congress pays her 5000 Rs. per photoshoot,”
read her tweet.
The claim is false. All four women might seem
alike because of their old age and white hair. A
closer look, however, reveals clear distinctions in
physical features. Alt News juxtaposed photo-
graphs of the four women for a comparative view.
The second woman was photographed with BJP’s
K Surendran and the fourth with Shashi Tharoor.
The third elderly woman is the same one who
could be seen embracing Rahul Gandhi.
Haryana CM targets Rahul Gandhi via a
clipped video.
On April 28, Haryana Chief Minister Manohar
Lal Khattar addressed an election rally in Ratia
in the state. During his speech, the CM spoke
about a purported video of Rahul Gandhi which
was “too difficult to even talk about”. Khattar
alleged that the Congress president “insulted the
honour of our mothers and sisters”. He cited a
video where he claimed Gandhi said that women
in Uttar Pradesh can give birth to one child a
week or 52 children a year.
The video referred to by Khattar was mischie-
vously clipped. A seven-year-old speech of Rahul
Gandhi in UP’s Phulpur was lifted, clipped and
circulated on social media. In the original
speech, Rahul talks about the Janani Suraksha
Yojna under the National Rural Health Mission,
under which pregnant women get an incentive of
`1,400 for institutional delivery. In that context,
the Congress president had claimed that accord-
ing to an RTI response, women with the same
name were getting incentives every week due to
corruption in the scheme.
Congress IT cell head tweets photoshopped
image drawing a parallel between PM Modi
and Hitler. “What are your thoughts?” tweet-
ed Divya Spandana, social media head of the
Congress party, along with two photographs.
One was of Nazi leader Adolf Hitler, the other
was of Modi.
The same image had been circulated by detrac-
tors of Modi in 2018 as well. It was debunked by
Alt News. A reverse image search on Google
revealed that Hitler’s image used in the post is
photoshopped. In the original image, he is not
holding the child’s ears but resting his hands on
her shoulders. An article in The Sun published
the original image which was apparently clicked
to portray the Nazi leader as a “personal friend
and guardian of the German youth”.
Bengal BJP doctors video to claim Mamata
Banerjee asked people to vote for the BJP.
“The impact of MODI TSUNAMI – Mamata
Banerjee appeals everyone to vote for BJP!”—the
official Twitter handle of Bengal BJP declared in
a tweet that the chief minister of West Bengal,
Mamata Banerjee, appealed to voters to vote for
the BJP in a rally. Accompanying the tweet was
an 18-second video in which her words—“BJP
shorkar ke vote diye”—were played in a loop. The
English translation of the statement is “vote
for BJP”.
It turns out that the Bengal BJP had tweeted
a doctored video which was clipped and played
in a loop to give a misleading impression.
Banerjee addressed a rally in Khanakul, West
Bengal, on April 23. While ending her speech,
she asked the people to vote out the BJP, with a
sarcastic tone to her words. Her words: “6 May
aasche din, ekhane bhalo kore gonotontroye BJP
Sarkar ke vote diye bhalo kore kobor din, bhalo
kore kobor din, bhalo kore kobor din”, can be
approximately translated as: “On May 6, cast
your vote for the BJP government and give
them a proper burial, give them a proper burial,
SPREADING
FALSEHOOD
(Above) AltNews
found that the image
was photoshopped
and morphed.
Moreover, the font,
size and colour of
the words “Hindu”
and “cry” do not
match the words
in the rest of
the sentence

give them a proper burial.” The part where she
says “bhalo kore kobor din”, which literally trans-
lates to “put them in the grave”, was clipped out
by the Bengal BJP. Instead, the part where she
sarcastically says “vote for BJP” was retained and
played in a loop.
AAP social media head tweets 2013 video
to portray the Congress on shaky ground
in Delhi.
People of Delhi have understood that @INCIndia
and @SheilaDikshit are merely vote-cutters. If
you dont believe it then watch this 24 second
video. After today’s #AAPkaManifesto, the 2-3%
people who would have voted for Congress will
now not. (translation).
The above message was tweeted by Ankit Lal,
the social media in-charge of AAP, along with a
video clip showing former Delhi CM and senior
Congress leader Sheila Dikshit. The tweet ref-
erred to the Congress party as a vote katua, inca-
pable of garnering the popular mandate in Delhi
for the Lok Sabha election of 2019.
The video which was posted by Lal on his
Twitter account was misleading. It is not a recent
news report. It is from November 2013. NDTV
had reported the turnout at the Congress
party’s rally in Ambedkar Nagar, ahead of the
2013 assembly election which took place in
December that year. The INC was the biggest
loser in the election, plunging from 43 seats
to eight.
Photoshopped image of Priyanka Gandhi
wearing a cross.
A photograph of Priyanka Gandhi wearing a
cross around her neck was shared widely on
social media. Several pro-BJP Facebook pages
posted an image, in which two photographs of
Priyanka Gandhi were juxtaposed. In one photo-
graph, she is seen wearing a cross. It has been
claimed that the picture was taken in Kerala. In
the other image on the right, she is sporting a
rudraksha necklace. This photo was claimed to
be from Uttar Pradesh. The attempt was to high-
light the supposed hypocrisy and skullduggery of
Priyanka Gandhi.
The picture of her wearing a cross is photo-
shopped. AltNews had fact-checked the photo-
graph and found that she was actually wearing a
pendant, which was replaced with a cross by
photoshoping. The original photograph was from
a rally in UP in 2017.
Photoshopped image shows Rahul Gandhi
and Mamata Banerjee with Pakistan PM and
army chief.
An image of Pakistan Prime Minister Imran
Khan interacting with the country’s army chief,
Qamar Javed Bajwa, was circulated on social
media. Congress leaders Shatrughan Sinha and
Navjot Singh Sidhu, Mamata Banerjee and
Rahul Gandhi can also be seen in the photo-
graph, sitting in a corner. It was circulated
with the caption “If you vote for Congress, you
will be able to vote for Pakistan. Look at the pic-
ture, how are the slaves of Pakistan sitting in
the corner.”
Alt News found that the original photo, in
which no Indian leader is seen, was digitally
altered. The image was photoshopped by Twitter
user @Atheist_Krishna who had posted it on
6 May 27, 2019
FAR FROM REALITY
(Above) A TMC
supporter circulated
pictures of a man
dressed as Hanuman,
saying he was
“Jagannath Sarkar,
BJP MP candidate
from Ranaghat” in
West Bengal. But the
truth is Sarkar was
NOT dressed as
Hanuman at all
(Above right) An
image of Pakistan PM
Imran Khan interacting
with his country’s army
chief was circulated on
social media.
Congress leaders
Shatrughan Sinha and
Navjot Singh Sidhu,
Mamata Banerjee and
Rahul Gandhi can also
be seen in the frame.
But the original photo
has no Indian leader

April 5 with the caption “Opposition reaches
Pakistan to gather evidence for the death of ter-
rorists in Balakot” —which suggests that he took
a sarcastic jibe at the opposition leaders.
Photoshopped endorsement: Ranveer Singh
and Deepika Padukone shown campaigning
for BJP.
A photograph of movie stars Ranveer Singh and
Deepika Padukone was posted on Facebook. It
showed the two sporting saffron scarves on
which “Vote for BJP N Modi” is printed. The text
accompanying the image read: “Press the lotus
button, become a part of the nation’s progress.”
As expected, the image was digitally manipu-
lated. AltNews searched for the image on Google
and found the real photograph, which was
clicked on November 30, 2018. Singh and
Padukone had visited the Siddhivinayak temple
in Mumbai, where the picture was clicked. It was
carried by several media publications.
Republic TV falsely portrays man praising
PM Modi as a Congress MLA.
“Congress MLA, Anil Upadhyay also becomes a
disciple/fan of Modi, lavishes praise on him.” The
“Breaking News” headline, telecast on April 27
by Republic TV’s Hello Bharat programme, car-
ried a video of a person praising Modi and saying
that only the corrupt want him to lose. The
anchors further explained what they called the
“big news”, saying that not only the common citi-
zens of the country but also Modi’s political
opponents were full of praise for him. They
introduced the person as Anil Upadhyay, a
Congress MLA from Madhya Pradesh.
Republic TV had clearly misreported. AltNews
found that there was no Congress MLA by the
name of Anil Upadhyay. The person in the video
was identified by The Quint as Mohan (Munna)
Pandey. Several videos of Pandey have been
shared by Twitter user Tanmay Shankar
(@Shanktan). In all these videos, he is seen as
making a very spirited and emotional case for
supporting Modi. Speaking to The Quint,
Shankar confirmed that the person is Mohan
Pandey and known to him personally.
ABP News anchor defends Smriti Irani over
degree row with falsehood.
In a debate broadcast by ABP News from
Darbhanga in Bihar, the question of Smriti
Irani’s degree once again came to the fore when a
person from the audience raised a question over
her questionable educational qualifications. In
response, the ABP News anchor said that Irani
has a Master of Arts (MA) degree. The relevant
portion of the discussion can be seen at 38:16
minutes in the video. In response to a question
raised by a member of the audience, ABP News
anchor Rubika Liyaquat promptly responded,
saying, “(She has done MA through correspon-
dence, she has done MA, she has done MA—
translation.”
This is not true, as Irani’s poll affidavit for
2019 clearly mentions that she had not complet-
ed her three-year degree course.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
THE ART OF FAKING
(Above left) A
photograph of
Priyanka Gandhi
wearing a cross
around her neck was
shared on social
media to portray her
as a hypocrite. She
was actually wearing
a pendant
(Above) A digitally
manipulated image of
Bollywood stars
Ranveer Singh and
Deepika Padukone
was posted on
Facebook, showing
them with saffron
scarves with “Vote for
BJP N Modi” written
on them

ContentsVOLUME XII ISSUE28
MAY27,2019
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Senior Content Writer Punit Mishra
(Web)
8 May 27, 2019
12Crime and Punishment
A PIL before the Supreme Court has sought that consecutive rather
than concurrent sentences be awarded to those convicted of
multiple offences. Knee-jerk reliance on incarceration as a panacea
for crime is counter-productive, writes Prof G Mohan Gopal
LEAD
22Demolition Day
More than 350 families may be left
homeless as the apex court has ordered
the demolition of five apartment complexes
built on the Kochi waterfront in Kerala in
violation of environmental rules
SUPREMECOURT
18Bone of Contention
The Supreme Court has agreed to hear a petition which calls for regulation and censorship of
content transmitted on the internet by online entertainment service providers and intermediaries

POLITICS
Unwarranted Breach
In another instance of politicisation of the armed forces, a complaint was received by the
district electoral officer in the Ladakh parliamentary constituency that senior army officers
tried to influence the voting preferences of lower ranks
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design & Illustration:
ANTHONY LAWRENCE
Ringside .........................10
Courts.............................11
Media Watch ..................31
Satire ..............................50
45
Under the
Scanner
A petition has been filed in
the Delhi HC on First
Responder Vehicles which
provide first-aid to patients
until an ambulance arrives. A
column also critically exam-
ines this issue
27
COURTS
Power Play
SEBI should re-think on allowing shares
with differential voting rights to be listed on
the stock exchange as it results in the
management being unaccountable to
market discipline
38
ECONOMY
GLOBALTRENDS
Provocateur In Chief 41
Each new day sees US President Donald Trump indulging in something aimed at
simultaneously provoking the Opposition and rallying his cult-like following
Tumultuous
Times
Ever since the suicide bombings last
month, Sri Lanka has gone into overdrive
and imposed emergency with unprece-
dented powers for the army and police.
Are the bad old days back again?
Goodbye
to School?
The Delhi HC has issued
notice to the AAP government
on circulars aimed at denying
re-admission to students who
failed the CBSE Class X exams
30
LEGALEYE
Disturbing
Portents?
It is important that Justices do not resile from
their own decisions on the Bench and that
they observe the canons of constitutional
rectitude promoting institutional integrity,
writes Prof Upendra Baxi
24
42
In a Bind
A complex gang rape case that
took place in Punjab in 2010 has
embroiled two judges and some
senior advocates. The Punjab and
Haryana High Court is likely to
tread carefully in dealing with them
48
FOCUS
IBC Decoded
The first-of-its-kind legal conclave held recently in Mumbai deliberated
on issues affecting the Insolvency and Bankruptcy Code and brought
the best of India’s legal minds together
32
SPOTLIGHT

10 May 27, 2019
“
RINGSIDE
“My wife has that
much strength and
moral authority that
she will never lie.
This is my answer.”
—Congress leader
Navjot Singh Sidhu
on his wife's allega-
tion that Punjab
CM Amarinder
Singh didn’t allow
her to contest from
Chandigarh
“Nathuram Godse
was a patriot and
will remain so.
People calling him
a terrorist should
introspect. They will
be given a befitting
reply in these
elections.”
—The BJP candidate
from Bhopal Lok
Sabha constituency,
Pragya Singh
Thakur, to a news
agency
“If we thought so far
ahead, this gath-
bandhan would not
have been there. I
don’t think about
what will happen
tomorrow. The alli-
ance is based on
what is going to
happen today....”
—SP chief Akhilesh
Yadav on a likely tus-
sle with Mayawati
for the UP CM’s post
“Despite its cultured
and intellectual pop-
ulation, Goa’s MLAs
defect from par-
ties....It is probably
influenced by the
US. Marriages do
not last in that
country.... To keep
these people...in one
place and run a gov-
ernment is difficult.”
—Union minister
Nitin Gadkari
“Narendra Modi
speaks with hatred.
He insults my father,
grandmother and
great grandfather
but I will never
speak about his par-
ents in my life. I
will rather die.... I
will... defeat him
with love.”
—Congress president
Rahul Gandhi at a
rally in MP
“I will quit politics if
Modi and Sounda-
rarajan prove that I
am in touch with the
BJP. If they fail to
prove, will they
resign?”
—DMK chief MK
Stalin on the state
BJP chief’s remark
that he was in talks
with them for a tie-
“This is a new life, a
new beginning for
me. I am very
happy...we just
wanted healthy chil-
dren.... My daugh-
ters have been born
on Mother’s Day and
I am doubly happy
because of that....”
—Irom Sharmila, the
‘Iron Lady of India’
and civil rights
activist who gave
birth to twins on
Mother's Day
“He is the biggest liar. I have never seen a PM who
speaks only lies. He should be made to squat, hold-
ing his ears, a thousand times for speaking lies and
destroying the heritage of Bengal. If you can prove
that TMC workers were involved in the (vandalis-
ing) incident, then I will quit politics. If BJP work-
ers are involved, then I will send you to jail.”
—West Bengal CM Mamata Banerjee after PM Modi blamed
the TMC for breaking the bust of Ishwar Chandra Vidyasagar
Anthony Lawrence
Heavy cloud cover
expected over National
Capital Region for next few
days, no chance of
Pakistan air strike

Courts
—Compiled by India Legal Team
SC irked over BJP
member’s detention
The Supreme Court chastised the West
Bengal government for keeping BJP
member Priyanka Sharma in jail for one
more night after the Court had ordered
her immediate release. Sharma was arr-
ested after she shared a photo in which
West Bengal Chief Minister Mamata
Banerjee’s face had been morphed on the
face of actor Priyanka Chopra. In the orig-
inal picture, the actor was photographed
at the MET Gala in New York. A
vacation bench comprising
Justices Indira Banerjee and
Sanjiv Khanna said that failure
to release her immediately
as per the directions of
the Court amounted to
contempt of court.
No further SC relief for
former Kolkata CP
The Supreme Court withdrew the inter-
im protection granted to former Kol-
kata police commissioner Rajeev Kumar
from arrest by the CBI. Kumar is alleged
to have tampered with evidence related to
the Saradha chit fund scam. A vacation
bench of CJI Ranjan Gogoi and Justices
Deepak Gupta and Sanjiv Khanna gave
him seven days to seek legal remedies.
The bench was hearing a plea by the CBI
which had sought its permis-
sion to arrest Kumar for ques-
tioning in the Saradha case.
On May 2, the Court had
reserved order on whet-
her to revoke its Feb-
ruary order in which
it granted Kumar
protection from
arrest by the CBI.
Let candidates choose cadres: SC
The Supreme Court
Collegium recom-
mended the names of four
high court judges for
appointment as chief jus-
tices of the High Courts of
Delhi, Madhya Pradesh,
Himachal Pradesh and
Telangana. Justice DN
Patel, who is a senior
puisne judge of the
Gujarat HC and is at pres-
ent functioning, on trans-
fer, in the Jharkhand HC,
has been recommended
for the Delhi HC. Justice V
Ramasubramanian, who
is the seniormost judge in
the Madras HC and is at
present functioning, on
transfer, in the Telangana
HC, has been recom-
mended for the Himachal
Pradesh HC. Justice AA
Kureshi, who is the
seniormost judge in the
Gujarat HC and is at pres-
ent functioning in the
Bombay HC, has been
recommended for the
Madhya Pradesh HC.
Justice RS Chauhan, who
is the seniormost judge in
the Rajasthan HC and is at
present functioning in the
Telangana HC as acting
chief justice has been rec-
ommended as chief jus-
tice of the Telangana HC.
SC Collegium recommends
chief justices for 4 HCs
Hearing the centre’s plea challenging
the Delhi High Court’s May 3 order
quashing the cadre allocation of IAS and
IPS officers of the 2018 batch, the
Supreme Court modified the impugned
order and granted 19 aggrieved candi-
dates the liberty to choose their cadre
by marking their preferences, even as it
ruled that the original allocation was not
to be disturbed. The Delhi High Court
verdict came on four separate petitions
filed by various officers challenging a
central government notification allocating
cadres to IAS and IPS candidates on the
basis of results of the Civil Services
Examination (CSE), 2017. The High
Court had accepted the petitioners’ con-
tention that the interpretation and imple-
mentation of the Cadre Allocation
Policy–2017 was unreasonable and
unfair as the more meritorious candi-
dates had been denied the cadres to
which they were otherwise entitled
according to their preference. The High
Court had also directed the centre to
redo the entire cadre allocation exercise.
During the hearing in the Supreme
Court, a vacation bench comprising
Justices Indira Banerjee and Sanjiv
Khanna referred to the High Court’s find-
ing that the language of the circular was
ambiguous. In response, the centre, rep-
resented by Solicitor General Tushar
Mehta, told the bench that “only 19 can-
didates have not understood the circular
but all others have understood it. If we
start resolving it, we will have to change
the cadre of every candidate”.

Lead/ Column/ Criminal Justice System Prof G Mohan Gopal
12 May 27, 2019
N the northern and
southern walls of the
magnificent Diwan-i-
Khas, once home to the
fabled Peacock Throne in
the 380-year-old Delhi
Red Fort, are inscribed the lyrical words
of the immortal 13th century Sufi poet
Amir Khusro: “Gar firdaus bar-rue
zamin ast, hami asto, hamin asto, hamin
ast (If there be a paradise on earth, it is
this, it is this, it is this).”
Twenty-one kilometres west of the
Red Fort stands another great monu-
ment of power—the 61-year-old Tihar
jail, said to be amongst the largest pris-
ons in the world. On the soul of each
accursed inmate of Tihar are inscribed
the tragic words: “If there be a hell on
earth, it is this, it is this, it is this.”
A 2014 India Today headline cap-
tures Tihar succinctly: “A dangerous
underworld of lethal weapons, violence,
homosexual assault [and] drug addic-
Crime and
Punishment
Photos: UNI
APILbeforetheSupremeCourtasksforconsecutiverather
thanconcurrentsentencestobeawardedtothoseconvicted
ofmultipleoffences.Knee-jerkrelianceonincarcerationasa
panaceaforcrimeiscounter-productive
O
BETTER FACILITIES NEEDED
Tihar jail is amongst the largest prisons in the
world, but it has poor amenities

The Supreme Court tried to address
the breakdown of the rule of law in pris-
ons by laying down critical legal princi-
ples to constrain State power through its
Krishna Iyer-led “prison jurisprudence”.
This jurisprudence has undoubtedly pro-
vided important tools for prisoners to
defend their constitutional rights.
However, it has not had a significant
corrective impact on the quotidien law-
lessness of prisons, as evidenced by the
brutal torture, rape and murder of 38-
year-old woman prisoner Manjula
Shetye by Byculla women’s prison staff
two years ago—for daring to
question jail officers on why two
eggs and five pieces of pav
(bread) were missing from the
morning rations of the prison-
ers. Shetye’s murder led to a riot
in the women’s prison.
I
n Accused ‘X’ vs. State of
Maharashtra (judgment
dated April 12, 2019), the
Supreme Court reiterated the
constitutional right, including of
prisoners, against excessive pun-
ishment. The Court said:
“Article 20 of the Constitution
guarantees individuals the right
not to be subjected to excessive
criminal penalty. The right flows
from the basic tenet of propor-
tionality. By protecting even
those convicted of heinous cri-
mes, this right reaffirms the
duty to respect the dignity of all
persons. Therefore, our Cons-
titution embodies broad and
idealistic concepts of dignity,
civilised standards, humanity,
and decency against which
tion.” Filled beyond its brim (over
15,000 inmates live in a facility meant
for 10,000), Tihar has thousands of
poor, young, illiterate or barely educated
men and women belonging to the mar-
ginalised social groups, most of whom
have not even been found guilty of a
crime (over 80 percent are undertrials).
Like other prisons in India and in
many countries, it is a house of horrors,
a dark space of impunity, where
unspeakable crimes are committed by
criminal custodians and hardcore
inmates. Prisons rob young undertrials
of their innocence, groom them into
criminality, violence and brutality and
admit them into membership in under-
world gangs. Tihar, like other prisons, is
overcrowded, dingy and filthy. Inmates
lack basic amenities including food and
medical care. Many die in prison,
although their deaths are often attrib-
uted to suicide. In 2011, the Delhi High
Court awarded a “token” compensation
to the widow of renowned businessman
Rajan Pillai 16 years after he died due to
lack of medical care in Tihar while he
was an inmate there.
Filledbeyonditsbrim(over
15,000inmatesliveinafacility
meantfor10,000),Tiharhas
thousandsofpoor,young,
illiterateorbarelyeducatedmen
andwomenbelongingtothe
marginalisedsocialgroups.

penal measures have to be evaluated.”
The treatment of our prisoners violates
this constitutional right.
Their treatment also violates global
standards. Article 5 of the Universal
Declaration of Human Rights (UDHR)
says: “No one shall be subjected to tor-
ture or to cruel, inhuman or degrading
treatment or punishment.” The English
Bill of Rights of 1689 prohibits inflic-
tion of cruel and unusual punishments.
The 1791 French Revolutionary Penal
Code requires that “penalties should be
proportional to the crimes for which
they were inflicted, and they are intend-
ed”. The 1791 Eighth Amendment to the
US Constitution prohibits “cruel and
unusual punishment”.
Against this background, we should
be deeply concerned that a public inter-
est petition (PIL) has been filed in the
Supreme Court asking, in effect, for
more prisoners to be sent to our crum-
bling and dysfunctional prisons, to be
subjected to abuse and violence there.
Media reports say that the petition asks
the Supreme Court for directions that
consecutive rather than concurrent sen-
tences be awarded to those convicted of
multiple offences under laws such as the
Unlawful Activities (Prevention) Act,
1967, Prevention of Corruption Act,
Prevention of Money Laundering Act,
Foreign Contributions Regulation Act
and Prohibition of Benami Property
Transaction Act. While consecutive sen-
tences are permissible under Indian law,
Section 31(2)(a) of the Criminal
Procedure Code limits the total cumula-
tive sentence to 14 years (although an
apparently erroneous view has been can-
vassed that this limitation does not
apply to sentences imposed by higher
courts including Sessions and Additional
Sessions courts).
The purpose of this article is not to
comment on the PIL while it is pending
in the Supreme Court. The purpose is to
question the implicit assumption of the
PIL that the best way to respond to the
crimes with which it is concerned (cor-
ruption, economic offences, terrorism) is
to increase the length of sentences and
send more people to prison. The article
also suggests that, rather than seek ad
hoc changes through PILs, there is a ne-
ed for a comprehensive national debate
on key issues and the development of a
new legislative vision on criminal justice
as a basis to reform and strengthen it.
First, is the most effective way to
address the crimes with which the PIL is
concerned increasing incarceration
through mandatory consecutive sentenc-
ing? The approach in the petition is said
to be inspired in part by a reported 2016
suggestion of Justice Arijit Pasayat,
retired judge of the Supreme Court and
deputy chairman of the Supreme Court-
appointed SIT on black money that
India should follow the US example of
punishing economic offenders for up to
150 years through consecutive sentenc-
ing. The learned judge is right in look-
ing to the US as a role model for long
prison sentences. Cumulative sentences
in the US often extend to multiple cen-
turies. One of the most egregious exam-
ples is that of 64-year-old Terry Nichols
who is serving 161 consecutive life sen-
tences without parole (yes, you read that
right) in a prison in Colorado. Nichols’
sentence is widely considered to be the
longest sentence awarded in the US. He
was convicted of several crimes for his
part in the 1995 bombing of a US federal
office building in Oklahoma which killed
168 and injured over 680. However, sub-
sequent developments raise serious
doubt whether the 161 consecutive life
sentences given to him and the execu-
tion of fellow accused Timothy McVeigh
for his role in the same terrorist attack
have had any deterrent effect.
T
he US has the highest prison pop-
ulation in the world (over 21 lakh
and over 60 lakh in the correc-
tion system) and the highest per-capita
incarceration rate (655 persons per one
lakh population). The US saw an explo-
sion of its prison population from about
two lakh in 1974 to the current level of
around 21 lakh in 2017 (an increase of
over 900 percent, whereas the US popu-
lation expanded only by 52 percent in
the same period from around 210 mil-
lion to about 320 million). The total
14 May 2 , 2019
InmatesinTiharjail,andmanyother
prisonsinIndia,lackbasicamenities
includingfoodandmedicalcare.Many
dieinprison,althoughtheirdeathsare
oftenattributedtosuicide.
Lead/ Column/ Criminal Justice System/ Prof G Mohan Gopal
FAMILY TIES
A woman tying a rakhi on the wrist of her
brother in a Jaipur jail

incidence of crime in the US was 1.02
crore in 1974. It peaked at 1.49 crore in
1991 (an increase of about 46 percent)
and then declined steadily over the last
quarter-century to 89 lakh in 2017.
Did putting more people in prison for
longer bring down crime in the US? In
an article, Reducing Prison Admissions
and Length of Stay to End Mass
Incarceration, Todd Clear argues: “For a
decade, evidence has mounted that the
massive penal system was not only cost-
ly, but also ineffective (and in important
ways, counterproductive). These argu-
ments have been persuasive to people on
all points along the political spectrum.
They were central to the conservative
Right on Crime position paper, where
they carried more weight than mere cost
arguments.” Clear also says: “For the first
time in 35 years, the size of all correc-
tional populations—prisons, jails, and
probationers/parolees—is dropping, at
about 2 percent annually for the last two
years. No doubt the current fiscal crisis
is a main driver of this turn-about.
States face dire fiscal choices, and big
prison populations increasingly look like
luxuries that need to be trimmed back.
But the fiscal realities have just been the
wake-up call.”
There is very little evidence that long
incarceration is a stand-alone silver bul-
let for preventing crime in the US or
elsewhere. Some potential offenders may
be deterred by the risk of long imprison-
ment in certain circumstances for some
crimes. Others may not. That the length
of incarceration will, in and by itself,
deter crime cannot, however, be seen
as a secular rule that applies equally to
all offenders and all crimes. We have
seen, for example, the futility of enha-
nced stringent punishment for rape in
response to the Nirbhaya tragedy as
a deterrent.
It is well-recognised that deterrence
is the result of a complex and varied set
of factors. For example, it has been
reported that “air pollution is a major
driver of crime in London”, according to
new research by the London School
of Economics.
Research in Mexico shows that
reducing economic disparities leads to
reduction of crime. It has also been
reported in a recent UNDP report that
“the increase in single parent households
and the lack of capacity of govern-
ments—in terms of police forces, judicial
system and institutions—to adequately
address security challenges, also explains
the recent rise in crime and violence
in Mexico and in Latin America as a
whole”.
The totality of social, economic,
political and institutional causative fac-
tors for each category of crime needs to
be effectively tackled for sustainable
reduction in, and prevention of, crime.
Targeted expansion of incarceration may
well be a necessary part of this broader
response. However, knee-jerk, “tough on
crime” over-reliance on incarceration as
a stand-alone panacea for crime is
unsustainable and counter-productive.
T
here is another concern. A policy
shift to consecutive sentences,
demanded by the PIL, will
increase prison terms in India. In the
medium-term, given fiscal constraints,
India will have no choice but to follow
the US example and privatise its prisons,
creating a US-style “prison-industrial”
complex in which investors in for-profit
private prisons become powerful lobby-
ists for laws that expand criminalisation
and extend prison terms.
For all these reasons, the implicit
assumption that increasing the duration
of sentences will deter crime does not
seem to be sound.
We urgently need a national debate
on our current approach to crime and
punishment. Punishment literally
means, to put it simply, causing pain.
Can a modern, democratic State deliber-
ately cause pain to its citizens as retribu-
tion for crime? Especially when the vast
majority of those punished are from the
most marginalised and defenceless
sections of society? What is achieved by
throwing people into a wretched prison
for long periods and throwing away
Thepurposeofthisarticleisto
questiontheassumptionofthePILthat
thebestwaytorespondtocrimesisto
increasethelengthofsentencesand
sendmorepeopletoprison.
RESTORATIVE GOALS
Nirbhaya gang rape convicts Akshay Thakur
and Pawan Gupta (face covered) being taken
to the High Court in Delhi

16 May 27, 2019
the key?
What is the most democratic alterna-
tive way in which to move beyond pun-
ishment and move towards restorative
goals in response to crime?
How can we move our focus more
upstream, to focus on effective social,
political and economic measures to pre-
vent crime? Successful examples are
available in Northern Europe, such as
open prisons in Norway.
Our current response to crime is cen-
tred around the police and the courts.
They do not have capacity or skills to
deal with a crime holistically. How can
we respond to a crime using a broader
range of institutions, tools and resources
to address the needs of the victim as well
as the accused? Today, violence is at the
centre of State response to crime. As a
country that fought for its freedom on
the basis of non-violence and compas-
sion, we need to consider how to make
the criminal justice system similar and
more reflective of the spirit and ethos of
our Republic.
How do we get the criminal justice
system to work for the rights of the pow-
erless rather than become for the main
part, an engine to punish the poor? We
have seen, without prejudice for the
merits of the case, how a Dalit woman
complained about crimes committed
against her by the chief justice of India,
but the high office of the person accused
has frozen the wheels of criminal justice.
How do we democratise the criminal
courts? Why are we not de-concentrat-
ing the enormous centralisation of
power in Indian trial judges which
enhances risk of error and abuse by
moving closer to the common law tradi-
tion of separating investigation, prose-
cution, fact and guilt-finding (role of
juries) and upholding the rule of law,
justice and rights (role of the judge)
functions?
W
hy don’t we act on various
long-standing proposals to
ensure genuine accountability
of lawyers, the police, the prosecutor
and the judge? Why are we not urgently
and strictly improving the professional
standards of all members of the court—
judges, lawyers, prosecutors and court
staff—to bring them on a par with glob-
al standards? Why don’t we establish a
professional cadre of public defenders?
British judge Lord Patrick Devlin is
said to have referred to the jury system
as “the flame that shows us that democ-
racy is still alive”. Why have we aban-
doned this central democratic voice in
the criminal justice system?
An important structural reason for
prisons becoming cesspools of abuse and
corruption is the extreme imbalance of
power between the inmates and the jail
staff. What can be done to redress that
power imbalance and improve the func-
tioning of justice institutions?
Starting in the 18th century, the
world began to leave behind what was
then considered the optimal response to
crime—killing, maiming, torture and
other forms of corporal punishment
inflicted on the accused. That epochal
change happened because it dawned on
people that, in the words of Monte-
squieu: “As freedom advances, the sever-
ity of the penal law decreases.” This par-
adigm shift led to the establishment of
modern penitentiaries (places of
penance rather than pain), starting in
Pennsylvania, as the better way to
respond to crime. Two centuries later, it
is time to move on again, to even more
enlightened, scientific, modern, rational,
cost-effective and humane ways of deal-
ing with crime. The future abandonment
of prisons is certain. The only question
is, will we have the courage to think
beyond incarceration today?
It is high time our Parliament and
state legislatures developed a post-colo-
nial, post-feudal, modern, democratic,
liberal, comprehensive criminal justice
policy that reflects the ethos of our dem-
ocratic, secular, liberal, socialist
Republic as well as our civilisational val-
ues of non-violence and compassion.
We cannot any longer lurch from
judgment to judgment, picking on a
patchwork of ad hoc ideas that are
unable to weave into a tapestry of effec-
tive criminal justice. We urgently need a
national debate and a national consen-
sus on criminal justice reform and on
moving beyond incarceration.
The writer was former Director,
National Judicial Academy and former
VC, National Law School of India,
Bangalore
LONG HAULS IN US PRISONS
A prisoner on death row in a jail in
San Quentin, California
Lead/ Column/ Criminal Justice System/ Prof G Mohan Gopal

Catch Us
Every Saturday at 8 pm
and Sunday at 2 pm

Supreme Court/ Online Entertainment
18 May 27, 2019
HE question whether online
entertainment service
providers and intermedi-
aries like Netflix, Amazon
Prime Video, Hotstar, etc,
should come under a regula-
tory regime and be subjected to prior
censorship is not easy to decide. Those
who argue in favour of regulation
for such content say it is inherently dis-
criminatory to exempt
the internet from it
when similar content in
theatres or television
channels is subject to
regulation and censorship. Those who
argue against such regulation underline
the practical difficulties of regulating
the internet.
On May 10, a Supreme Court bench
of Chief Justice Ranjan Gogoi and
Justice Sanjiv Khanna agreed to hear an
appeal filed by Delhi-based NGO Justice
for Rights Foundation against a Delhi
High Court’s order of February 8. The
High Court bench of Chief Justice
Rajendra Menon and Justice V
Kameswar Rao had dismissed the
Foundation’s PIL seeking
directions to the centre to
frame legal provisions/guide-
lines to regulate online plat-
forms and content broadcast
through them. It also sought
directions to all online plat-
forms to remove legally
restricted content with immediate effect.
The centre submitted to the High
Court that the online platforms are not
required to obtain any
licence from the Ministry
of Information and
Broadcasting for display-
ing their content and the
same is not regulated by it. The Union
Ministry of Electronics and Information
Technology (MEIT) too informed the
High Court that it does not regulate
content on the internet and there was
no provision for regulating or licensing
an organisation or establishment for
putting up content on the internet.
However, MEIT submitted that the pro-
visions of the Information and Techn-
ology Act, 2000, are applicable, and the
concerned statutory
authority exercising
jurisdiction under the
Act can take action
under Section 69. This
section includes direc-
tion for interception, monitoring or
decryption of information, blocking of
content, etc.
MEIT further claimed that under
Section 66A, punishments have been
provided for sending offensive messages
through communication services, and so
on. Punishments are also provided for
publishing or transmitting obscene
material in any electronic form under
Section 67. Section 67A prescribes pun-
ishment for publishing or transmitting
of material containing sexually explicit
act, etc. in electronic form.
Section 67B provides for pun-
ishment for publishing or
transmitting material depicting
children in bad taste. More
power is conferred under
Section 68 to the Controller to
give directions in such cases.
However, on March 12, a High Court
bench of Chief Justice Rajendra Menon
and Justice Anup Jairam Bhambhani
corrected the February 8 order insofar
as it was erroneously held that action
against online platforms could be taken
under Section 66A of the ITA. This pro-
vision was held ultra vires by the
Supreme Court in Shreya Singhal v
Union of India in 2015. “Therefore, ref-
erence to Section 66A in para 4 of order
dated 08.02.2019 is deleted and the
petitioner is at liberty to take recourse
under the relevant provisions of the
ITA, 2000,” the bench stated.
But for this correction, the bench
reiterated its February 8 order which
expressed the Court’s inability to issue a
mandamus for framing general guide-
lines or provisions when there are strin-
gent provisions already in place under
ITA. “In case the petitioner feels that
any of the contents exhibited or trans-
Contentious
Content
Shouldtheprogrammestransmittedthroughtheinternetby
socialmediagiantsberegulatedandcensored?TheCourthas
othercasestofallbackontoarriveatafinalverdict
By Venkatasubramanian
T
ThecentresubmittedtotheHCthat
onlineplatformsarenotrequiredto
obtainalicencefromtheMinistryof
InformationandBroadcastingfor
contentandnoristhatregulatedbyit.

Filed by Padmanabh Shankar, the peti-
tion prays for a declaration that trans-
mission or broadcast of any films, cine-
ma, serials and other multimedia con-
tent through the internet shall come
within the definition of Section 2(c) of
the Cinematograph Act, 1952. Section
2(c) defines cinematograph as including
any apparatus for the representation of
moving pictures or series of pictures.
Watching the said multi-media content
intramural would amount to public
exhibition, thereby requiring regulation.
It wanted the Court to direct the centre
to come out with suitable legislation to
set up a board or authority to sanction
the films, cinema, serials and other mul-
timedia content transmitted or broad-
cast through the internet for public
exhibition with the help of advisory pan-
els at regional centres. In this case,
Netflix, YouTube, Hotstar, Amazon
Prime and Alt Digital Media
Entertainment Limited have been
named as respondents.
T
hrough the Cinematograph Act,
unrestricted public exhibition of
films which affect human sensi-
bilities by showing excess of vulgarity,
obscenity or depravity, or scenes degrad-
ing women in any manner are largely
contained. The Act has also, more or
less successfully, regulated or prevented
the usage of words which are contemp-
tuous of social, religious practices, etc.
Shankar cited relevant case laws to
support his prayers. In K.A. Abbas v
Union of India (1970), the Supreme
Court justified censorship of films
because a film motivates thought and
action and assures a high degree of
attention and retention as compared to
the printed word. Therefore, it has as
much potential for evil as it has for good
and has an equal potential to instil or
cultivate violent or good behaviour, the
Court had held.
In Amitabh Bacchhan Corporation
Ltd. V Om Pal Singh Hoon (1996), the
Delhi High Court held that producers
and directors cannot create a taste for
sex and violence and contend that
there is popular demand for the same.
Constitutional values and statutory
standards as interpreted by the Supreme
Court have to guide us; it is not the
shifting popular will, but our
UNCUT AND STREAMING
Online entertainment service providers have
a free playing field
mitted by the organisations detailed in
the writ petition violates the statutory
provisions of the ITA or the Rule and
contains prohibitory material as is
detailed therein, the petitioner can very
well make a complaint under the
aforesaid provision to the statutory
authority and we are hopeful that the
authorities shall look into the matter,”
the bench concluded before dismissing
the petition.
The centre submitted before the
High Court that although no general
power for regulation of material in the
internet platform is available, in case of
misuse, then ITA provides for deterrent
action to be taken by the competent
statutory authority “as and when com-
plaints are received”.
The Foundation alleged in its peti-
tion that due to the absence of a licens-
ing or regulating body, the respondents
are creating a special class of broadcast-
ers and discriminating against cus-
tomers, regular movie producers, cable
TV operators and D2H operators. “We
are not asking for a ban on online enter-
tainment, but only seeking regulation,
and pre-screening scrutiny of the con-
tent,” Satyam Singh Rajput, founder and
national president of the Justice for
Rights Foundation told India Legal.
A similar petition is pending before
the Karnataka High Court, which too
has issued a notice to the respondents.
“Wearenotaskingforabanon
onlineentertainment,butonlyseeking
regulation,andpre-screening
scrutinyofthecontent.”
—SatyamSinghRajput,founder,
JusticeforRightsFoundation
thewrap.com

20 May 27, 2019
fundamental assessments of human val-
ues and the purpose of society that
should govern, the Court observed.
In S Rangarajan vs P Jagjeevan Ram,
(1989), the Supreme Court held that in
the name of innovation, we cannot
throw away general human morality and
wisdom. The Censor Board, it said, need
not have an orthodox or conservative
look, but must display more sensitivity
to the motives, which have a markedly
deleterious effect to lower the moral
standards of the viewers, especially
the young.
Shankar, in his petition, points to the
flaws in the existing legal regime, which
limit our potential to regulate the trans-
mission of entertainment through the
internet.
As per Section 79 of the ITA, under
certain circumstances, intermediaries
are exempted from liability. Any person
who provides internet service would be
called an intermediary. Intermediaries
like Google, Yahoo, Netflix and Hotstar
have either a policy document or an
agreement with their content generators
which gives them the right to decide
whether they are going to publish the
content or transmit the same to users.
As they take up the responsibility of
deciding whose and which content can
be transmitted by them, they cannot
claim any protection under Section 79
of the ITA, Shankar contends in his
petition.
I
n Shreya Singhal, the Supreme
Court observed: “Section 79 being
an exemption provision, it is closely
related to provisions which provide for
offences including Section 69A. Under
Section 69A, blocking can take place
only by a reasoned order after comply-
ing with several procedural safeguards
including a hearing to the originator
and intermediary. There are only two
ways in which a blocking order can be
passed—one by the designated officer
after complying with the 2009 rules and
the other by the designated officer when
he has to follow an order passed by the
competent court.”
Shankar’s plea for judicial interven-
tion to ensure regulation of the internet
relies on the following grounds: It is
only by the intervention of the Supreme
Court in the Hero Cup judgment
(Secretary, MIB v Cricket Association of
Bengal, 1995) that the foundation was
laid for regulation of content broadcast
by cable TV operators through cinema
and television. Even though the
Cinematograph Act or the Cable
Television Network Regulation Act of
1995 are silent with regard to broadcast-
ing of films, cinema, serials and other
multimedia content via internet, the law
should be declared to state that the Acts
shall apply for the same. In Laxmi Video
Theatres vs State of Haryana (1993), the
Supreme Court interpreted Section 2(c)
of the Cinematograph Act to include
DVDs and VCRs within the meaning of
the word “apparatus” and consequently
held that the Act shall also apply to
films broadcast through VCRs, DVDs,
and so on.
The petition cites a case in
Uttarakhand wherein a Class Xth girl
was brutally gang raped by two minors,
who admitted having watched porno-
graphic material on the internet, before
the commission of the offence.
In Super Cassette Limited v Board of
Film Certificate and others, it was held
that watching a movie through the
medium of DVDs and VCDs would
amount to public exhibition. Shankar,
therefore, argued that even if an individ-
ual watches any movies or films on the
internet within the four walls of his
home, it would amount to public exhibi-
tion, and hence, regulation is justified.
It is likely that the Supreme Court
may transfer the pending petition
before the Karnataka HC to itself when
it hears the Foundation’s appeal against
the Delhi High Court’s February 8
order.
EASY ACCESS
Online platforms allow viewers to watch
content that won’t reach theatres or TV
Asimilarpetitionispendingbeforethe
KarnatakaHighCourt,whichtoohas
issuedanoticetotherespondents.
PetitionerPadmanabhShankarhascited
relevantcaselawstosupporthisplea.
Supreme Court/ Online Entertainment
bloody-disgusting.com

Supreme Court/Illegal Constructions
22 May 27, 2019
OR nearly 350 families that
had invested their hard-
earned money to buy dream
houses on the picturesque
Kochi waterfront in Kerala,
it was the equivalent of the
proverbial bolt from the blue. On May 8,
the Supreme Court ordered the demoli-
tion of five apartment complexes for
violation of the Coastal Regulation Zone
(CRZ) norms.
A bench of Justices Arun Mishra and
Navin Sinha ordered that five complex-
es—Holy Faith Apartments, Kayaloram
Apartments, Holiday Heritage, Alfa
Ventures, and Jain Heritage—be razed.
It ruled that the state, devastated by the
August 2018 floods, cannot withstand
another deluge on account of illegal
constructions.
Whenever the demolitions take
place—the apex court has given a mon-
th’s time for the buildings to be razed—
the flat owners will have to cope with
the fact that there will be no compensa-
tion. Mostly people from the upper mid-
dle class, they are now pointing fingers
at the builders for cheating them. The
hapless buyers say that the builders con-
nived with government agencies and
other concerned officials to facilitate
illegal constructions in violation of CRZ
norms, “We are simply shocked. We had
no idea these were illegal. The village
and municipal offices, the elec-
tricity board, fire service, all gave
us permits and we had no reason
to believe these were illegal,” said
Major Ravi, noted filmmaker and
a flat owner.
The apex court’s decision came
on a Special Leave Petition filed
by the Kerala State Coastal Zone
Management Authority (KSCZ-
MA). But, on behalf of the
builders, Paul Raj Joseph of Alpha
Ventures said that they would
soon move a review petition
before the Court.
It was in 2010 that the
builders were issued showcause
notices after an audit revealed
irregularities in land use. But they got a
breather when the Kerala High Court
stayed the notice. In due course, the
constructions were completed and flat
owners moved into their dream homes.
According to KSCZMA, the five
apartment complexes are located in an
area notified under the non-negotiable
CRZ -III regulations. Situated along the
scenic Vembanad Lake, linked to the
Arabian Sea, the area is coveted by
builders as water-front apartments here
are in high demand.
The building boom has not only
destroyed the vulnerable eco-systems
but also invited natural calamities like
the 2018 floods from which the state is
yet to return to normalcy.
A recent survey along a five-kilome-
tre stretch in Maradu Municipality, in
which these apartments are located,
revealed that there are over 67
encroachments but authorities have
been mere bystanders. It thus became
easy for builders to bend the CRZ
norms. Even getting caught was not
much of a problem as the building, at
the most, entailed an “unauthorised” tag
that brought with it a fine. In this light,
the Supreme Court order to demolish
the apartments is expected to act as a
Demolition Day
Morethan350familiesmaybewithoutaroofovertheirheads
astheapexcourthasorderedthedemolitionoffiveapartment
complexesbuiltinKeralabyignoringenvironmentalconcerns
By NV Ravindranathan Nair
in Thiruvananthapuram
PAYING THE PRICE
Alfa Ventures, one of the apartment
complexes slated for demolition
F

deterrent to the plague of illegal encro-
achment across the state.
The genesis of the controversy lay in
a permit that the Maradu Municipality
issued in August 2006 to builders to
construct commercial multi-storied
buildings in the area. But KSCZMA
wanted the state government to direct
the Municipality to revoke all permits.
As the Municipality issued showcause
notices to the builders, one of them
challenged it in the Kerala High Court.
A single bench quashed the notices, say-
ing that the state government had no
powers to issue directions to local bod-
ies. Later, a division bench of the High
Court also upheld the decision.
KSCZMA then moved the apex court
against the High Court order. On Nov-
ember 27, 2018, the apex court ordered
that an expert committee be appointed
to probe whether the area where the
apartments were constructed fell within
CRZ-II or CRZ-III zone. As per CRZ
rules, no construction is permitted with-
in 200 metres from the coastal line.
The committee said that as the
apartments were located within the pro-
hibited area, the construction was ille-
gal. It added that the permission given
to builders by the local body did not
have the go-ahead from KSCZMA, the
competent authority.
Taking note of the report, the Sup-
reme Court directed the authorities to
raze the buildings within a month and
submit a compliance report. The two-
judge bench agreed with the KSCZMA
stand that the constructions on river
beds and coastal zones were “an invita-
tion for natural disasters as seen in
Uttarakhand and Tamil Nadu, and vio-
lations could not be condoned in view of
natural calamities happening in differ-
ent parts of the country”.
T
he Court order came as a boost to
environment groups in the state
who organised a two-day rally
across the coastal belt of Kerala—from
Kochi to Thiruvananthapuram. “The SC
verdict to pull down the five structures
will be a blessing for environment pro-
tection. If we don’t comply with the ver-
dict, violators will become bolder. Such
a scenario will serve to bring more dis-
asters,” said noted environmentalist CR
Neelakandan. He added that green
groups would move the apex court if the
state government did not comply with
the order.
Noted architect and head of the
department of architecture, College of
Engineering Trivandrum, Professor
Manoj Kini said it was high time Kerala
returned to environment-friendly
constructions.
It is apparent that the state is yet to
learn lessons from the devastating
floods of last year—a man-made disaster
as several low-lying areas which had
water-holding capacity in the event of
floods had been filled for real estate pur-
poses, thus causing waterlogging.
“Constructions as part of the real estate
boom in the environmentally fragile
areas have been posing a serious envi-
ronmental issue in the state,” he said.
Responding to India Legal’s query
about builders getting permits for the
construction even when the land was in
the CRZ-III category, National Vice-
President, CREDAI, and a local builder
Raghuchandran Nair said that the Local
Self Government Department and
Coastal Zone Management Authority,
the two different arms of the govern-
ment, were at loggerheads and challeng-
ing each other’s stand. “It is absurd. It is
the responsibility of the government to
sort this issue out between the depart-
ments. After collecting all the taxes and
documentation charges, the government
cannot wash its hands of the matter and
choose to be a mute witness,” he said.
He added that the government needed
to step in to save the situation or pay
compensation to allottees and bear all
the expenses for the demolition. Accor-
ding to him, the allottees are the owners
of the property and they can once again
construct a house with more FAR on the
same land as the area now falls in the
CRZ-II category. He said the govern-
ment should apprise the apex court
about these facts when the review peti-
tion is filed. Will the apex court listen?
CALL FOR DISASTER
(Left) The illegal construction boom in
Kerala led to the August 2018 floods;
Raghuchandran Nair, National VP, CREDAI
UNI

Legal Eye/ Justice Kurian Joseph on the NJAC
24 May 27, 2019
have expressed the view several
times in the media that Indian
citizens will never know the real
reasons why judicial collegiums ele-
vate certain constitutionally quali-
fied citizens (or transfer certain
Justices from one High Court to anoth-
er) nor why the Executive appoints (and
transfers) Justices. In either method, the
play of residual discretion cannot be
avoided. In reality, some sort of consti-
tutional diarchy prevails, contrary to
the propaganda that the views of the
judicial collegium always prevail over
the Executive.
Arbitrariness in judicial appoint-
ments should be progressively reduced
and informed public debates provide the
best searchlight for finding procedural
means ahead, provided we realise that
eradication of discretion is an impossi-
ble dream. However, a singular question
is: should Justices in their superannuat-
ed public performances directly or indi-
rectly express an altogether different
opinion from the considered view they
expressed in their judicial decisions?
The fact that they have in the past
and in the present done so does not
foreclose the issue of whether they
ought to do so. Nor does it provide the
normative wherewithal for regarding
their out-of-office remarks as pertinent,
but this has also occurred.
Both Justices Yeshwant Chandra-
chud and PN Bhagwati reiterated their
apologies to the nation for the habeas
corpus denial during the internal
Emergency in l975, but what is unusual
is the fact that the Supreme Court as a
whole decided to overrule this decision
in the recent case recognising right to
privacy. Justice Dhananjay Chandra-
chud (for himself and writing for Chief
Justice JS Khehar and Justices RK
Agrawal and S Abdul Nazeer) held that
“the judgments rendered by all the four
judges constituting the majority in
ADM Jabalpur are seriously flawed. Life
and personal liberty are inalienable to
human existence”. And Justice Sanjay
Kishan Kaul termed it as “an aberration
in the constitutional jurisprudence of
our country”, adding that the majority
opinion should be “buried ten fathom
deep, with no chance of resurrection”. A
certain poignancy and eloquence pre-
vails in applauding the moral courage of
dissent by Justice HR Khanna during
the Emergency.
But what can be done when a Justice
Disturbing Portents?
ItisimportantthatJusticesdonotresilefromtheirowndecisionsontheBenchandthat
theyobservethecanonsofconstitutionalrectitudepromotinginstitutionalintegrity
By Prof Upendra Baxi
I
CONTROVERSIAL VIEW
Former SC judge Justice Kurian Joseph (blue
suit) with FM Arun Jaitley at a book launch
ceremony where he spoke about the NJAC
twitter.com/cambridgeindia

after retirement expresses a disagree-
ment with his own ruling? Most recent-
ly, Justice Kurian Joseph (who I hold in
high esteem) precisely, and ironically,
did this in the presence of Union Fin-
ance Minister Arun Jaitley at the launch
of a book “Independence and Accoun-
tability of the Indian Higher Judiciary”,
written by Arghya Sengupta, director,
Vidhi Centre for Legal Policy. He said
he “was beginning to regret” his view on
the National Judicial Appointments
Commission (NJAC).
The learned Justice was a part of the
Constitution Bench that in October
2015 held unconstitutional and invalid
both the constitutional amendment and
the NJAC Bill by a 4:1 majority. He had
then explicitly stated: “Direct participa-
tion of the Executive or other non-judi-
cial elements would ultimately lead to
structured bargaining in appointments,
if not, anything worse. Any attempt by
diluting the basic structure to create a
committed judiciary, however remote be
the possibility, is to be nipped in the
bud.” Quoting US Supreme Court Chief
Justice John Roberts that the court has
“no power to gerrymander the Consti-
tution”, he said neither has the Indian
Parliament any power to do so. “The
Constitution 99th amendment impairs
the structural distribution of powers,
and hence, it is impermissible.”
That was said on October 16, 2015,
but now (upon retirement on November
28, 2018) he finds many a fault with the
collegium system, as adversely affecting
the independence of the judiciary in the
matter of “seniority” and also by way of
“delay”, it makes the “other way” more
attractive. What made Justice Kurian
Joseph hold an opposite view in the
space of three years?
O
bviously, no system of appoint-
ment of Justices would ever be
perfect, but does that justify
violation of judicial review and inde-
pendence, the doctrine of basic struc-
ture and essential features which he
himself so powerfully evoked on Oct-
ober 16, 2015?
As late as February 6, 2013 (in an
interview with Bar & Bench) Justice JS
Verma bemoaned the fact that when the
Executive was predominant, extraordi-
nary judges “like Justices GP Singh,
Chittatosh Mookerjee, PD Desai, MM
Ismail, and Alladi Kuppu Swami were
not brought to the Supreme Court.
What was needed was that both the
Judiciary and the Executive should have
acted honestly and not arbitrarily”.
Referring to his Second Judges case
decision, Justice Verma said: “My 1993
judgment, which holds the field, was
very much misunderstood and misused.
It was in that context I said the working
of the judgment now for some time is
raising serious questions, which cannot
be called unreasonable. Therefore, some
kind of rethink is required.”
But in agreeing with Justice Madan
Lokur’s “analysis and statement of law,
in the matter of discussion and summa-
rization of the principles on reconsider-
ation of judgments”, Justice Kurian
Joseph added: “I would like to add one
more, as the tenth [consideration].
Once this Court has addressed an issue
on a substantial question of law as to
the structure of the Constitution and
has laid down the law, a request for re-
visit shall not be welcomed unless it is
HISTORIC JUDGMENT
The NJAC was declared unconstitutional by a
five-judge SC bench of (L-R) Justices (retd)
JS Khehar, J Chelameswar, MB Lokur and AK
Goel together with Justice Joseph; Justice
Chelameswar gave the dissenting opinion
Atarecentbooklaunchceremony,
JusticeKurianJoseph saidthathe“was
beginningtoregret”hisviewonthe
NationalJudicialAppointments
Commission(NJAC).
Photos: JS Studio

Legal Eye/ Justice Kurian Joseph on the NJAC
26 May 27, 2019
shown that the structural interpretation
is palpably erroneous.”
How does any superannuated piece
of wisdom enhance the process of struc-
tured bargaining? What happens now to
this solid “structural interpretation”?
And does it now complicate the recep-
tion of the nine points enunciated by
Justice Lokur? In fact, he wrote: “The
executive continues to have a vital role
to play and in some cases, the final say
in the appointment of a judge—the mis-
understanding of the judgment is due to
the completely and regrettably defeatist
attitude of the Union of India and the
States or their view that in the matter
of appointment of Judges, it is their way
or the highway.” He went on to say:
“The Constitution of India is a sacred
document and not a Rubik’s cube that
can be manipulated and maneuvered by
the political executive...to suit its imme-
diate needs.”
R Venakatsen of the Frontline, wad-
ing through these interpretations, gave
a further twist to this debate by asking
in Law and Other Things: “Do the judg-
ments in the Judges cases, decided by
a larger bench, give scope for reforming
the collegium by a smaller bench of
five judges?”
This valid question requires hot pur-
suit, but I am more concerned with the
issue of whether a judge ought to exp-
ress his views contrary to those he had
expressed in a binding judgment? It
may be argued that Justice Kurian Jos-
eph always remained uneasy about the
primacy of the collegiums. He said in
the judgment (although not directly
agreeing with the salient criticism of the
judicial collegium system articulated by
Justice Jasti Chelameswar) that the
question whether the “institutional
trusteeship has kept up the expectations
of the framers of the Constitution” war-
rants “deep introspection”. But that
unease then did not result in validating
the NJAC.
J
ustices upon retirement, of course,
possess a right to freedom of
speech and expression; indeed, this
basic right is not even suspended during
the tenure of judgeship, a constitutional
office. But it is reasonably restricted in
terms of the judicial oath under the
Third Schedule. The oath no longer
applies on superannuation, but do the
obligations of constitutional morality
cease for that reason? Is it justified to
resile from one’s own decision on the
Bench or to leave the labours of making
sense of a post superannuation with-
drawal of a constitutional reiteration,
eminently well-argued and well-consid-
ered? Superannuated Justices, more
than political actors, ought to observe
the canons of constitutional rectitude
and promote institutional integrity.
While the impact of the observations
of a retired justice is for a later bench or
court to decide, available evidence
shows that extra curial utterances have
the effect of: (1) weakening the authority
of the institution as a whole; (2) weak-
ening or diluting the level of support or
endorsement by concurrence (even a
concurring separate opinion) of an in-
cumbent Justice by any adverse inter-
locution on superannuation; (3) weak-
ening of the original discourse by differ-
ent constructions placed upon the views
of superannuated Justices.
In the event, one would seriously
urge, particularly the Supreme Court, to
enact a rule against allowing any cita-
tion or mention of any comment on
judgments made by a retired Justice, as
retroactive dissent is not permitted by
the Constitution. Ideally, no retired
Justice should include in the guarantee
of freedom of speech and expression the
right to retroactively express an opinion
different than that embodied in her or
his concurrence or dissent. If thought
necessary, the judicial oath in the Third
Schedule should be so amended. It is
constitutionally sensible to speak about
a judicial duty, subsisting even on
retirement, requiring abstinence from
expressing doubts about one’s own
opinions and decisions which are based
on the fullest possible hearing of all
sides. The golden rule of constitutional
decision-making is to leave the path of
law strictly uncluttered for judicial
successors.
—The author is an internationally
renowned law scholar, an acclaimed
teacher and a well-known writer
Theapexcourtmustconsiderenactinga
ruleagainstallowinganycitationormen-
tionofanycommentonjudgmentsmade
byaretiredJustice,asretroactivedis-
sentisnotpermittedbytheConstitution.

Courts/ Assistant Ambulance Officers
HE Delhi government has
informed the Delhi High
Court that the recently
launched First Responder
Vehicles (FRVs) under the
Centralised Accident and Trauma Ser-
vices (CATS) was only a pilot project
and had sufficient number of Assistant
Ambulance Officers (AAO) to provide
basic first-aid and stabilise the patient
until an ambulance arrives. It said these
FRVs would not transport any patient.
A bench of Chief Justice Rajendra
Menon and Justice AJ Bhambhani was
hearing a plea which challenged the
scheme of FRVs. These motorcycle-
ambulances were launched in February
this year. The petition said that it had
been launched without due diligence
and with the help of untrained man-
power. It had further claimed that 70
percent of the AAOs are more than 50
years of age.
The plea was filed through advocate
Kamlesh Kumar and quoted an RTI
reply that reportedly said that the AAOs,
who would be riding the bikes, had no
requisite qualification to be paramedics.
However, the Delhi government
informed the Court that these AAOs
were highly experienced drivers with
more than 20 years of experience. It
said the task of the AAO was to stabilise
the patient/accident victim with basic
first-aid techniques. This includes bleed-
ing control, immobilisation, cardiopul-
monary resuscitation, air-way manage-
ment, oxygen therapy, etc, until the
arrival of a four-wheeler ambulance.
The Delhi government further clai-
med that the present plea was filed for
the personal interest of a person as a
copy of the cabinet note, file notings and
letters of CATS along with the petition
was only given to Dharmendra Trivedi,
president of CATS Officers Welfare
Association under the RTI Act.
It said that as per a 2015 report,
51.85 percent of slums have no moto-
rable approach roads and 48.15 percent
of slums have only pucca/kutcha moto-
rable approach roads. These kind of nar-
row lanes are not suitable for four-
wheeler ambulances. Further, in a study
it was found that the average response
time of CATS ambulances was more
than 30 minutes. So in order to provide
basic first-aid in medical emergencies,
CATS initiated the FRV pilot project
in East Delhi (the most densely populat-
ed area with a population density of
more than 27,000 persons per sq km),
and based on the outcome of the said
project, further course of action will
be initiated.
The Delhi government said AAOs
were not paramedics and their designa-
tion was “Assistant Ambulance Officer”
because at any given point, they are not
required to administer any injection,
etc. They have to carry medical equip-
ment and medical consumables required
for providing necessary first-aid. The
total weight of these items is approxi-
mately 10 kg.
The petition also said the decision
to appoint AAOs as drivers is being
questioned by its own employees on
the grounds that the government had
not recruited special cadre to man
the scheme.
Under the Scanner
ApetitionhasbeenfiledintheDelhiHighCourtonFirstResponder
Vehicleswhichprovidefirst-aiduntilanambulancearrives
By Kunal Rao
T
REACHING OUT
The Delhi government told Chief Justice Rajendra Menon
(above, left) and Justice AJ Bhambhani that the bike
ambulance services (left) are critical in medical emergencies
Twitter

28 May 27, 2019
Column/ Assistant Ambulance Officers Dr KK Aggarwal
SCHEME started by the
Delhi government in Feb-
ruary seems to have run
into trouble and has
reached the Delhi High
Court. A PIL has said that Assistant
Ambulance Officers (AAOs) who are
assigned the job of driving two-wheeler
First Responder Vehicles should also be
trained paramedics. However, the Delhi
government has said that they will not
transport patients and will only give
basic medical assistance until an ambu-
lance arrives.
AAOs have been trained in basic life-
support techniques, have commercial
driving licences and a work experience
of more than 20 years. However, in this
scheme, there is not much efficacy due
to the limited knowledge and training of
AAOs. They are not even authorised (or
qualified) to administer an injection.
To understand their job, we need to
first understand the laws. The govern-
ment has powers to allow healthcare
workers to give treatment under Clause
23 of Schedule K of the Drugs and Cos-
metics Act. As per the Clause, drugs
supplied by certain categories of work-
ers are exempted from the provisions of
Chapter IV of the Act and the Rules
which require them to be covered by a
sale licence, provided the drugs are sup-
plied under the Health or Family Wel-
fare Programme of the central or state
government. The workers are:
Multipurpose workers attached to pri-
mary health centres/sub-centres.
Community health volunteers under
the Rural Health Scheme.
Nurses, auxiliary nurses, midwives
and lady health visitors attached to
urban family welfare centres/primary
health centres/sub-centres.
Anganwadi workers.
Similarly, malaria workers are given
anti-malaria drugs and do malaria test-
ing, ASHA workers are allowed to give
Gentamicin injections to newborns and
methergine for postpartum haemor-
rhage, a leading cause of maternal mor-
tality, before the patient is transferred to
a hospital.
There is also a provision in the Medi-
cal Council of India ethics rules where a
technician can be trained by a doctor. It
does not talk about institutional train-
ing. It says: “A registered medical practi-
tioner shall not issue certificates of effi-
ciency in modern medicine to an unqua-
lified or non-medical person.” This does
not restrict the proper training and ins-
truction of bona fide students, mid-
wives, dispensers, surgical attendants,
skilled mechanical and technical assis-
tants and therapy assistants under the
personal supervision of physicians.
Similarly, in cases of a cardiac arrest,
even bystanders are allowed to provide
cardiopulmonary resuscitation (CPR).
There are three phases of cardiac resus-
citation lasting a total of 10 minutes. No
doctor can reach in 10 minutes in an
emergency and that is why a first
responder is important.
The first phase of resuscitation is the
electrical phase, lasting four to five min-
utes after sudden cardiac arrest (SCA).
Immediate direct current cardioversion
is needed to convert an abnormal heart
rhythm to a normal heart rhythm. Per-
forming chest compressions while the
defibrillator is readied also improves
survival. Then, there is the hemodynam-
ic phase or circulatory phase which is
from four to 10 minutes after SCA.
Chest compressions should be started
immediately and continued until just
before defibrillation is performed. Then
there is the metabolic phase defined as
greater than 10 minutes of pulseless-
ness. This is primarily based upon post-
resuscitative measures. In these phases,
the administration of CPR by a lay per-
son is an important factor in determin-
ing patient outcome if the cardiac arrest
takes place outside a hospital. Survival
Save a Life First
ThedebateoverAAOsisneedless,asinanymedicalemergency,
whatisvitalistosavethelifeofthepatient,evenbyabystander
A
EMERGENCY PROCEDURE
Doctors supervising cardiopulmonary
resuscitation training in New Delhi
UNI

after cardiac arrest is greater among
those who have bystander CPR as com-
pared to those who initially receive
delayed CPR from a trained technician.
In addition to improved survival, early
restoration in circulation is also seen.
T
here is also the golden hour in
medical practice when immediate
care is required. Delay in treat-
ment even by a few minutes can take
away a life. In emergency medicine, the
golden hour refers to the first hour fol-
lowing a traumatic injury during which
time there is the greatest likelihood
that prompt medical treatment will pre-
vent death.
If bleeding can be stopped and a per-
son infused with enough fluids within
the first hour, most trauma deaths can
be avoided. There is also the platinum
10 minutes which refers to the first 10
minutes after trauma when first-aid can
be started.
The importance of time in medicine
can be gauged from the following:
Door to ECG Time: This is an impor-
tant terminology in the treatment of
heart attack. One should get an ECG
within 10 minutes of chest pain. A pro-
longed door-to-ECG time is associated
with an increased risk in a heart attack.
Door-to-doctor time in paralysis: In
an emergency department, the time
from the arrival of the patient to initial
physician evaluation should be less than
10 minutes in strokes, otherwise the
mortality will be high.
Door to antibiotic time in community
acquired pneumonia is the time to start
antibiotics. Guidelines suggest that all
patients hospitalised with community
acquired pneumonia should receive
antibiotics within four hours of admis-
sion in a hospital.
Door to antibiotic time in meningitis
of more than six hours is linked to high
mortality.
Door to needle time in an acute heart
attack is the time before which a clot-
dissolving drug should be given.
Door to balloon time is less than 90
minutes for angioplasty and stenting in
acute heart attack.
Even the Indian Penal Code (Section
92) recognises the importance of an act
done in good faith with consent. It says:
“Nothing is an offence by reason of any
harm which it may cause to a person for
whose benefit it is done in good faith,
even without that person’s consent, if
the circumstances are such that it is
impossible for that person to signify
consent, or if that person is incapable of
giving consent, and has no guardian or
other person in lawful charge of him
from whom it is possible to obtain con-
sent in time for the thing to be done
with benefit.”
In that sense, motorcycle first
responders are important. They are not
doctors and will give life-saving inter-
vention only when required. Under
Section 88, the same Act is not an
offence if done with consent. Calling an
ambulance is an implied consent.
In this whole issue, there is the
question of paramedics. Are there
enough paramedic courses, colleges
and councils? From the Red Cross, one
can do a short course on first-aid and
qualify to be a paramedic. But is
that enough?
The answer lies in training and not
the degree as far as first-aid is con-
cerned. It is important to manage the
golden hour and hand over the patient
to qualified doctors with the arrival of a
proper ambulance.
Time is of essence in medical care
and if basic first-aid is being given, why
quibble about whether the person has a
paramedical degree or not?
—The writer is President, Heart Care
Foundation of India, and President-
elect, Confederation of Medical
Associations of Asia and Oceania
QUICK RELIEF
(Left) If the need arises, ASHA workers can give injections to
newborns; an accident victim being rushed to a trauma centre.
Most trauma deaths can be avoided if treatment starts quickly
healthasha.maharashtra.gov.in/
UNI

Courts/ Failed School Students
30 May 27, 2019
T is a problem that affects thou-
sands of students and keeps repeat-
ing itself every year. And, as in the
past, government schools have
turned a blind eye to the plight of
the students this time too. Nearly
48,930 students of government schools
in Delhi have failed this year in CBSE
Class X exams.
Though all such students have the
legal right to readmission in Class X in
the same school under Delhi School
Education Act, 1973, government
schools are more often than not likely to
refuse to take them back.
Last week, the Delhi High Court
issued notice to the Delhi government
following a petition highlighting the
denial of admission to students in gov-
ernment schools in Delhi.
A civil miscellaneous application was
filed in the High Court before a bench
comprising Chief Justice Rajendra
Menon and Justice Anup J Bhambhani
last week. It pertained to several circu-
lars of the government of Delhi which
sought to restrict students from contin-
uing with their formal education by cit-
ing, among other things, fixing of an
upper-age limit and requirement of resi-
dence proof.
The applicant mentioned that
48,930 students had failed this year’s
CBSE Class X exams and provided a list
of 264 students who have been denied
admission in government schools on
the grounds of having failed and sought
that admission be granted to them even
though they had failed twice in the
same grade.
The applicant pointed to various cir-
culars of the Delhi government wherein
the students were restricted from
participating in the formal education
system of the school or denied admis-
sion. The responsibility of ensuring
education to every child is that of the
government, he said, while pointing to a
circular dated 27.08.2018, according to
which students who have failed twice in
a particular grade from Class IX to XII
would be counselled and asked to take
the patrachar vidyalaya or the open
schooling system.
The counsel reminded the court that
the denial of admission to these stu-
dents after failing in a grade is not just
an irresponsible act of the government
but is in violation of Articles 14 and 21
of the Constitution.
The original petition was filed by
Ashok Agarwal, an advocate at Delhi
HC who is also a social activist.
Agarwal has been espousing the
cause of right to education, besides
other rights, in the HC through PILs.
He quoted Section 138 of Delhi Sch-
ool Education Rules, 1973, in the HC
that states: “Admission of failed students
is not to be refused. A student who fails
at any public examination shall not, on
that account, be refused readmission in
the school or class by the school from
which he had appeared at such exami-
nation.” He quoted Supreme Court
judgments that said that everyone has
the right to access higher education in
order to reach a higher pedestal in social
and economic life and any such restric-
tion violates the fundamental rights of
a citizen.
Agarwal also referred to the Delhi
government circular of 19.09.2016
wherein the age-limit was notified by
the government for each grade.
The counsel reminded the court
that among the many reasons that led
parents to choose government schools
was migration and the exorbitant cost of
education in private schools.
DelhiHCservesnoticetotheAAPgovernmentoncirculars
aimedatdenyingreadmissiontostudentswhofailedexams
By India Legal Bureau
I
Acivilmiscellaneousapplicationwas
filedintheHighCourtbeforeabench
comprisingChief
JusticeRajendraMenonandJustice
AnupJBhambhanilastweek.
twitter.com
School’s Out Forever

Media Watch
D
espite the so-called sweetheart
deal on Rafale, Anil Ambani
seems to be hedging his bets
as far as his so-called political godfa-
ther is concerned. He had recently
bought over the Delhi-based Indo-
Asian News Service (IANS), forcing a
lot of independent journalists to quit
and bringing in his own favourites.
However, here’s the twist.
Defying the Election Commission’s
model code of conduct, IANS ran an
exit poll last week which, surprisingly,
gave the BJP-led NDA a mere 234
seats while predicting that the
Congress-led United Progressive
Alliance (UPA) would get 169 while
“others” would win 140. The others
include 48 seats to the Samajwadi
Party-Bahujan Samaj Party-Rashtriya
Lok Dal combine of Uttar Pradesh and
31 seats to the Trinamool Congress.
The exit poll was uploaded on the
Twitter handle of IANS on May 13. It
took the small-time agency two days to
delete the tweet, after receiving a noti-
ce from the EC. Surprisingly, the two
other media outlets which also pub-
lished exit polls in violation of the code
of conduct included the leading pink
paper, The Economic Times. The Times
Group may also be hedging its bets—
its TV news channel, Times Now, is
embarrassingly pro-Modi.
Writing on the Wall
O
ne more name has been added
to the list of journalists the BJP
loves to hate—Aatish Taseer.
The provocation is his cover story for
Time magazine on Narendra Modi
headlined “India’s Divider in Chief”.
Taseer is an internationally known writer
with a number of critically acclaimed
books to his name but he does have a
peculiar problem—his mother is Indian,
columnist Tavleen Singh, who is an
avowed Modi fan, while his father,
Salman Taseer, who never acknowl-
edged Aatish’s existence, was a
Pakistani politician and businessman
assassinated by his bodyguard
in 2011.
The BJP trolls were quick to jump
on the story, labelling Taseer a
Pakistani and then claiming he had
worked for the Congress party. Taseer
is a British citizen and has been strictly
impartial when it comes to his articles
for foreign publications on India and
Pakistan. In fact, in a statement after
the Time cover story came out, he said
that Modi was the best thing that hap-
pened to Pakistan, referring to the
revival of the two-nation theory.
BJP hackers ignored Tavleen’s
hosannas to Modi, and instead manip-
ulated her son’s Wikipedia page. It was
edited on May 10, the day after Time
was published, when the phrase about
Taseer being “the PR manger for the
Congress” was added to the “Career”
section of the page. Wikipedia allows
those who use its service regularly to
make changes and edit existing materi-
al. Wikipedia has now declared
Taseer’s page as “Protected” which
means no changes can be made.
T
he Arnab Goswami-led Republic
TV is now gearing for its next big
jump—making its global presence
felt. The channel has been already
launched in New Zealand and plans are
afoot to launch it in South Africa later
this year. For the global expansion,
which also includes entering the OTT
space, Republic is setting up a team
that is looking exclusively at expansion
plans outside India. The next target,
after South Africa, will be the UK fol-
lowed by the US. It’s a route many of
the big Indian TV news channels have
taken, including NDTV and ZEE, and
with Goswami’s USP being a
rabid defender of Modi, if
the results on May 23 do
not go the BJP way, his
global ambitions
could face
some prob-
lems.
Going Global
Perils of the Press
I
t is well known that the Total
Readership (TR) of newspapers is
higher than their Average Issue
Readership (AIR). While publishing cir-
culation figures in their ads, newspapers
insist on using TR instead of AIR even
though advertisers pick publications
based on AIR and not TR. In the 2019
readership survey, which all newspapers
have been tom-tomming, they basically
mention TR. In IRS 2019, for some
papers, the TR is as high as four times
their AIR. For The Times of India, their
AIR is a little over 56 lakh, while the TR
is 1.52 crore! The Hindu has an AIR of a
little more than 16 lakh, while its TR is
62 lakh. The problem is that you can
fool the public but advertisers have their
own access to TR and AIR figures.
The Numbers Game

Spotlight/ Legal Leadership Conclave
32 May 27, 2019
ONCLAVES and seminars
are nothing new in India.
But a legal one, that too on
a subject as niche as the
Insolvency and Bankruptcy
Code (IBC), is an altogether
new idea. But then, India Legal as the
only politico-legal magazine in India
and ENC as a media group, have always
endeavoured and succeeded to a great
extent, to create awareness about vari-
IBCDecodedThefirst-of-its-kindlegalconclave,heldrecentlyinMumbai,deliberatedonissuesaffectingthe
InsolvencyandBankruptcyCodeandbroughtthebestoflegalmindstogether
By India Legal Bureau
C
MEMORABLE OCCASION Justice NV Ramana of the Supreme Court lighting the ceremonial lamp at the Legal Leadership Conclave.
Also seen are Chief Justice of the Bombay High Court Pradeep Nandrajog (extreme right); former Supreme Court judge Justice BN
Srikrishna (first from left); Editor-in-chief, APN, Rajshri Rai (second from left); Editor-in-Chief, India Legal, Inderjit Badhwar (second from
right); and former law secretary PK Malhotra (third from right)
It is against this backdrop that the
first-of-its-kind Legal Leadership Con-
clave becomes important. Held at The
St. Regis Mumbai on April 27, it bro-
ught the best of legal minds together to
deliberate on issues affecting IBC. Such
was the response that the Astor Ball-
room of the hotel—where the event was
held—was chock-a-block with lawyers,
technocrats, industry experts, builders,
law students and others who were either
Photos: Anil Shakya
ous legal issues that not only affect the
common man but the country at large.
IBC is an ambitious piece of econom-
ic reform in India and provides for a ti-
me-bound insolvency resolution process.
The law, enacted in 2016, has been
adopted by both creditors and debtors.
From real estate developers to financial
institutions to home buyers, IBC con-
cerns everyone, thus impacting the
Indian economy and citizen welfare.

| INDIA LEGAL | May 27, 2019, 33
sharing their views with the audience.
A majority of SCBA executive
committee members were also present
at the event. They included Vikrant
Yadav, secretary, SCBA; Vikas Bansal,
treasurer, SCBA, and Bhim Singh
and Jana Kalyan Das, both senior exec-
utive members.
The Conclave was partnered by India
Legal Research Foundation (ILRF), a
non-profit organisation committed to
bringing justice to those who deserve
it but cannot afford it, APN and
Nepal 1 and presented by ENC.
The Conclave started with the light-
ing of the lamp by Justice NV Ramana
of the Supreme Court. Others at the cer-
emony were Justice BN Srikrishna, for-
mer judge of the Supreme Court; Justice
Pradeep Nandrajog, chief justice of the
Bombay High Court; Rajshri Rai, edi-
tor-in-chief APN and ENC
affected by IBC or wanted to educate
themselves about this unique law.
The Conclave had two technical ses-
sions dealing with subjects, such as
“Opportunities and challenges for IBC”
and “Impact of IBC on business estab-
lishments and the real estate sector”.
Both the sessions saw judges from the
High Courts, senior advocates and
members of the National Company Law
Tribunals and corporate professionals
MAKING A POINT Justice BN Srikrishna pointed out that IBC has
improved India’s ranking in the ease of doing business
UNSTINTED SUPPORT PK Malhotra said that IBC is a commendable
initiative and gets reported in the press almost every day
AUGUST GATHERING Members from NCLT and SCBA with Justice Ramana (ninth from right, back row), Justice Pradeep Nandrajog (eighth
from right, back row), Justice BR Gavai, Bombay HC (sixth from right, back row), and Justice BN Srikrishna (eighth from left, back row)

India Legal 27 May 2019

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