India Legal 31 December 2018

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
December31, 2018
Genocide Law: Why
India lags behind
Madhav Godbole: Former home
secretary speaks out on the judiciary
PromiseandPerformanceAyear-endanalysisofkeycontroversialissuestheapexcourtwillhavetoconfront
whenitreconvenesafteritswinterbreak
Babri Masjid CBI
RafaleSabarimala
SUPREME COURT
Alok Verma,
CBI director
Rakesh Asthana,
CBI special director

4 December 31, 2018
HE mob violence in Bulandshahr in
Uttar Pradesh on December 3, 2018,
instigated and engineered with mali-
cious intent, which led to the cold-
blooded murder of a police officer
brave enough to step forward single-handedly to
pacify the mob, marks the most dangerous turn
yet in the direction taken by the politics of hate in
recent times. It shows that in India’s most popu-
lous state, Uttar Pradesh, the fundamental princi-
ples of governance, constitutional ethics and
humane social conduct stand perverted. The chief
minister of the state acts as a high priest of the
agenda of bigotry and majoritarian supremacy—
an agenda which now seems to take precedence
over everything else.
The paragraph above, brimming with barely
controlled outrage, was jointly penned by some
80 retired civil servants who have run the Gov-
ernment of India for several decades serving
under different political dispensations. Their
devotion to their country and its constitutional
value system is beyond question. Among them are
stalwarts like foreign secretaries Sujatha Singh,
Shyam Saran and Shivshankar Menon who was
also National Security Advisor; former Delhi Lt
Governor Najeeb Jung; former Ambassador to
Japan Aftab Seth and former Punjab and Maha-
rashtra police chief Julio Ribeiro. (see box)
Enough is enough, they are saying. They are
also correctly pointing out that it is their duty to
protect from anarchy, misgovernance, thuggery
and government-instigated violence a country
which they have cradled, and actively helped to
build and guide into progressive modernism.
“This is a critical moment,” they say in their
open letter, “and we cannot take it lying down
anymore. We call upon all citizens to unite in a
crusade against the politics of hate and division—
a politics which aims to destroy the fundamental
principles on which our Republic is founded. We
ask all citizens to whom constitutional values
matter to join us in reasserting our sovereignty
as citizens.”
Their immediate aim is to press for the resig-
nation of Chief Minister Yogi Adityanath for his
failure to abide by the Constitution to which he
has sworn allegiance. “We know that this can
happen, if together, we build a groundswell of
public opinion by which we hold him accountable
for his conduct and compel him to resign.” They
are also asking all citizens to:
Remind the chief secretary, the Director
General of Police, the home secretary, and all
other members of the higher civil services con-
cerned, of their constitutional duty to fearlessly
implement the Rule of Law rather than the per-
verse dictates of their political masters.
Request the High Court at Allahabad to take
suo motu cognisance of this incident and order a
judicial inquiry supervised by them to uncover
the true facts, expose the political collusion, fix
responsibility and recommend action.
Work towards a citizen-led national campaign
against the politics of hate and violence—in par-
ticular, the structural violence directed against
Muslims, Adivasis, Dalits and women—violence
which finds sustenance in the structures of politi-
cal power.
Salute Inspector Subodh Kumar Singh for his
bravery in standing up for constitutional values
and refusing to yield to political pressure even at
the cost of his life and for setting an example to
his children and the younger generation that val-
ues matter more than career success.
It is indeed perverse and unconscionable that
the Yogi who became chief minister has now
officially equated the alleged killing of a cow
with the killing of a police officer and described
this criminality variously as an “accident” and
a “conspiracy”.
Why is this incident such a frightening indica-
tor of the complete collapse of constitutional val-
ues? As the letter states: “This is not the first
instance of a situation intentionally created to
foment communal tension. The history of UP is
replete with such instances. This is not the first
time that a policeman has been killed by a fren-
“HOOLIGANISM
AND THUGGERY” Inderjit Badhwar
T
Theletterwas
jointlypennedby
some80retired
civilservantswho
haverunthe
GovernmentofIndia
forseveraldecades,
servingunder
differentpolitical
dispensations.Their
devotiontotheir
countryandits
constitutionalvalue
systemis
beyondquestion.
Letter from the Editor

zied mob. This is also not the first time that the
politics of cow protection has been used as a
means of isolating and cornering the Muslim
community and deepening the social divide.
“All this we have seen before but, so far, we
had the confidence that whenever a political party
actually forms a government, it keeps its partisan
political agenda at bay and begins to exercise
power with a sense of responsibility so as to gain
wider political acceptability. The Bulandshahr
episode, which follows a succession of events
aimed at isolating and intimidating Muslim com-
munities in UP, shows that, under Yogi Aditya-
nath, that confidence is misplaced and that hooli-
ganism and thuggery have been mainstreamed
into governance not just to intimidate minorities
but to teach a lesson to anyone, including police
personnel and others in the administration, who
dare to be even-handed in their approach to
minority communities.”
T
he letter further avers that while it may be
premature to come to conclusions about
the murder of Inspector Subodh Kumar
Singh before the investigations are over, “there is
no doubt that there was nothing spontaneous
about the violence that led to his killing, nor is
there any doubt as to who the political elements
were that aided and abetted the violence. This
was a deliberate attempt to display majoritarian
muscle and send a message to the Muslim com-
munities living in the region that they have to live
in fear, accept their subordinate status and con-
form to the cultural diktats of the majority”.
Ample videographed evidence exists, says the
letter, to show that those engaged in violence and
their leaders, as well as those who egged them on,
are allowed to roam scot-free, while, at the same
time, alleged cow killers, against whom not a
shred of evidence exists, are taken into custody,
just because they are Muslims. Three of the main
accused in the mob violence leading to the death
of the police officer flaunt their affiliations to the
Sangh Parivar and one of them openly declares
that the slain police officer was corrupt, friendly
with Muslims and anti-Hindu, implying thereby
that he deserved his fate.
The world over, in any civilised society, the
killing of a policeman is a more serious offence
than any other crime because it represents an
assault on the very basis of that civilisation, the
signatories observe. “It brooks no tolerance and
even the most fractious of social and political
groups come together to ensure that the perpetra-
tors of such a crime are given exemplary pun-
ishment so that no one ever dares to attack the
| INDIA LEGAL | December 31, 2018 5
FRENZY OF HATE
(Above left) Mob
violence in
Bulandshahr on
December 3, 2018
(Above) Inspector
Subodh Kumar Singh
was praised for
standing up for
constitutional values
and refusing to yield
to political pressure
even at the cost of
his life
(Left) The letter
pressed for the
resignation of UP
Chief Minister Yogi
Adityanath for acting
as a high priest of the
agenda of bigotry
and majoritarian
supremacy
UNI
TwitterTwitter

authority of law. In UP, on the other hand, we are
witness to the entire administration, presided
over by a chief minister who flaunts his bigotry as
his badge of identity, preparing the ground not
for bringing the perpetrators to book but for pro-
tecting them as defenders of faith and culture.
This is the Rule of Lawlessness.”
I
n a bold and frontal attack on serving officers
complicit in the crime, the signatories point
out that “with honourable exceptions”, their
colleagues in service, in the police and the civil
administration, appear to have capitulated readily
to this “perverted political order. They seem to
have forgotten that their primary allegiance is to
the Constitution and the Rule of Law, and that
their constitutional status provides them an
armour of such extraordinary strength that, had
they taken steps to check the growing menace of
the Hindutva brigade, they could certainly have
prevented the outbreak of violence. Instead, they
not only allowed these hooligans to grow in confi-
dence and gather political strength, they helped
them gain impunity in their lawless actions.
“Our Prime Minister, who is so voluble in his
election campaigns and who never tires of telling
us of how the Constitution of India is the only
holy book he worships, maintains stony silence
even as he sees a chief minister handpicked by
him treat that same Constitution with sheer
contempt. It is evident that for the Sangh Parivar,
constitutional morality is of no value and is
6 December 31, 2018
Letter from the Editor
Theletterconcludes
that“neverbeforein
recenthistoryhasthe
politicsofhate,
divisionandexclusion
beensodominant
andthepoisonous
ideologywhich
informsitpenetrated
sodeepintothe
bodypolitic....”
P Ambrose, IAS (Retd), Former Additional
Secretary, Ministry of Shipping & Transport,
GoI
L Bajaj, IAS (Retd) Former Chairman,
Administrative Reforms and
Decentralisation Commission, Govt of
Uttar Pradesh
Bala Baskar, IAS (Retd) Former Principal
Adviser (Finance), Ministry of External
Affairs, GoI
Vappala Balachandran, IPS (Retd) Former
Special Secretary, Cabinet Secretariat, GoI
Gopalan Balagopal, IAS (Retd) Former
Special Secretary, Govt of West Bengal
Chandrashekhar Balakrishnan, IAS (Retd)
Former Secretary, Coal, GoI
Meeran C Borwankar, IPS (Retd) Former
DGP, Bureau of Police Research and
Development, GoI
Ravi Budhiraja, IAS (Retd) Former
Chairman, Jawaharlal Nehru Port Trust,
GoI
Sundar Burra, IAS (Retd) Former Secretary,
Govt of Maharashtra
Kalyani Chaudhuri, IAS (Retd) Former
Additional Chief Secretary, Govt of
West Bengal
Anna Dani, IAS (Retd) Former Additional
Chief Secretary, Govt of Maharashtra
Surjit K Das, IAS (Retd) Former Chief
Secretary, Govt of Uttarakhand
Vibha Puri Das, IAS (Retd) Former
Secretary, Ministry of Tribal Affairs, GoI
R Dasgupta, IAS (Retd) Former Chairman,
Food Corporation of India, GoI
Nareshwar Dayal, IFS (Retd) Former
Secretary, Ministry of External Affairs and
former High Commissioner to the United
Kingdom
Pradeep K Deb, IAS (Retd) Former
Secretary, Dept of Sports, GoI
Nitin Desai, IES (Retd) Former Secretary
and Chief Economic Adviser, Ministry of
Finance, GoI
Keshav Desiraju, IAS (Retd) Former Health
Secretary, GoI
G Devasahayam, IAS (Retd) Former
Secretary, Govt of Haryana
Sushil Dubey, IFS (Retd) Former
Ambassador to Sweden
P Fabian, IFS (Retd) Former Ambassador
to Italy
Prabhu Ghate, IAS (Retd) Former Addl
Director General, Department of
Tourism, GoI
Arif Ghauri, IRS (Retd) Former
Commissioner of Income Tax, GoI
Gourisankar Ghosh, IAS (Retd) Former
Mission Director, National Drinking Water
Mission, GoI
Hirak Ghosh, IAS (Retd) Former Principal
Secretary, Govt of West Bengal
Tuktuk Ghosh, IAS (Retd) Former Special
Secretary and Financial Adviser, Ministry of
Road Transport & Highways, Shipping &
Tourism, GoI
Meena Gupta, IAS (Retd) Former
Secretary, Ministry of Environment &
Forests, GoI
Ravi Vira Gupta, IAS (Retd) Former Deputy
Governor, Reserve Bank of India
Deepa Hari, IRS (Resigned)
Vivek Harinarain, IAS (Retd) Govt of
Tamil Nadu
Sajjad Hassan, IAS (Retd) Former
Commissioner (Planning), Govt of
Manipur
MA Ibrahimi, IAS (Retd) Former Chief
Secretary (rank), Govt of Bihar
Kamal Jaswal, IAS (Retd) Former
Secretary, Department of Information
Technology, GoI
Jagdish Joshi, IAS (Retd) Former
Additional Chief Secretary (Planning),
Govt of Maharashtra
Najeeb Jung, IAS (Retd) Former Lieutenant
Governor, Delhi
John Koshy, IAS (Retd) Former State Chief
Information Commissioner, West Bengal
Ajai Kumar, Indian Forest Service (Retd)
Former Director, Ministry of Agriculture, GoI
Arun Kumar, IAS (Retd) Former Chairman,
National Pharmaceutical Pricing Authority,
GoI
Brijesh Kumar, IAS (Retd) Former
Secretary, Department of Information
Technology, GoI
TheSignatories

necessarily subordinate to the ideals of majoritar-
ian supremacy.”
I
n what is possibly the most authoritative and
scathing denunciation of a government and
an administration, by some of the most
powerful former civil servants who once ran
almost every branch of India’s governance,
they conclude:
“Never before in recent history has the politics
of hate, division and exclusion been so dominant
and the poisonous ideology which informs it pen-
etrated so deep into the body politic. Never before
has hate been directed with such calculated
intent against minority communities, hate which
is nursed, aided and abetted by those in power.
Violence has been given social and political sanc-
tion and perpetrators of violence have been treat-
ed with kid gloves while victims have been pun-
ished and harassed.
“It is a measure of the rapid erosion of consti-
tutional values that we, as a group, have felt a
compelling need to speak out as many as nine
times in the last eighteen months. The pace of
erosion has been frightening and with each slip
we seem to sink further into a lawless abyss.”
Harsh Mander, IAS (Retd) Govt of Madhya
Pradesh
Aditi Mehta, IAS (Retd) Former Additional
Chief Secretary, Govt of Rajasthan
Shivshankar Menon, IFS (Retd) Former
Foreign Secretary and Former National
Security Adviser
Sonalini Mirchandani, IFS (Resigned) GoI
Sunil Mitra, IAS (Retd) Former Secretary,
Ministry of Finance, GoI
Noor Mohammad, IAS (Retd) Former
Secretary, National Disaster Management
Authority, Govt of India
Deb Mukharji, IFS (Retd) Former High
Commissioner to Bangladesh and former
Ambassador to Nepal
Shiv Shankar Mukherjee, IFS (Retd)
Former High Commissioner to the United
Kingdom
Pranab S Mukhopadhyay, IAS (Retd)
Former Director, Institute of Port
Management, GoI
Nagalswamy, IAS (Retd) Former Principal
Accountant General, Tamil Nadu & Kerala
Amitabha Pande, IAS (Retd) Former
Secretary, Inter-State Council, GoI
Niranjan Pant, IA&AS (Retd) Former
Deputy Comptroller & Auditor General of
India
Alok Perti, IAS (Retd) Former Secretary,
Ministry of Coal, GoI
R Raghunandan, IAS (Retd) Former Joint
Secretary, Ministry of Panchayati Raj, GoI
K Raghupathy, IAS (Retd) Former
Chairman, Staff Selection Commission,
GoI
P Rai, IAS (Retd) Former Director General,
National Skills Development Agency, GoI
P Raja, IAS (Retd) Former Chairman,
Maharashtra Electricity Regulatory
Commission
Babu Rajeev, IAS (Retd) Former Secretary,
GoI
Y Rao, IAS (Retd)
Julio Ribeiro, IPS (Retd) Former Adviser to
Governor of Punjab & former Ambassador
to Romania
Aruna Roy, IAS (Resigned)
Manabendra N Roy, IAS (Retd) Former
Additional Chief Secretary, Govt of West
Bengal
Deepak Sanan, IAS (Retd) Former
Principal Adviser (AR) to Chief Minister,
Govt of Himachal Pradesh
Shyam Saran, IFS (Retd) Former Foreign
Secretary and Former Chairman, National
Security Advisory Board
C Saxena, IAS (Retd) Former Secretary,
Planning Commission, GoI
Ardhendu Sen, IAS (Retd) Former Chief
Secretary, Govt of West Bengal
Aftab Seth, IFS (Retd) Former Ambassador
to Japan
Ashok Kumar Sharma, IFS (Retd) Former
Ambassador to Finland and Estonia
Navrekha Sharma, IFS (Retd) Former
Ambassador to Indonesia
Pravesh Sharma, IAS (Retd) Former
Additional Chief Secretary, Govt of Madhya
Pradesh
Raju Sharma, IAS (Retd) Former Member,
Board of Revenue, Govt of Uttar Pradesh
Rashmi Shukla Sharma, IAS (Retd) Former
Additional Chief Secretary, Govt of Madhya
Pradesh
Ashok Vardhan Shetty, IAS (Retd) Former
Vice Chancellor, Indian Maritime University,
GoI
Rajdip Singh, IPS (Retd) Former Special
Director General, Border Security Force,
GoI
Sujatha Singh, IFS (Retd) Former Foreign
Secretary, GoI
Tirlochan Singh, IAS (Retd) Former
Secretary, National Commission for
Minorities, GoI
Jawhar Sircar, IAS (Retd) Former
Secretary, Ministry of Culture, GoI, & for-
mer CEO, Prasar Bharati
Narendra Sisodia, IAS (Retd) Former
Secretary, Ministry of Finance, GoI
Thanksy Thekkekera, IAS (Retd) Former
Additional Chief Secretary, Minorities
Development, Govt of Maharashtra
SS Thomas, IAS (Retd) Former Secretary
General, National Human Rights
Commission
Geetha Thoopal, IRAS (Retd) Former
General Manager, Metro Railway, Kolkata
Hindal Tyabji, IAS (Retd) Former Chief
Secretary rank, Govt of Jammu & Kashmir
Ramani Venkatesan, IAS (Retd) Former
Director General, YASHADA, Govt of
Maharashtra
Arvind Verma IPS (Resigned)
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com

ContentsVOLUME XII ISSUE7
DECEMBER31,2018
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Senior Content Writer Punit Mishra
(Web)
8 December 31, 2018
16Promise and Performance
A year-end analysis of key controversial issues the Supreme Court will have to confront
when it reconvenes in 2019 after its winter break
LEAD
20Death by Negligence
The Supreme Court has expressed concern over the number of pothole deaths in the last five
years and the lack of seriousness accorded to road safety by concerned authorities
SUPREMECOURT
24
Convicted
after 34 Years
In a painful closure for the families of
the 1984 riots victims, the Delhi High
Court has sentenced former Congress
MP Sajjan Kumar to spending the
remainder of his life in jail
COURTS

Affordable
and Viable REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Ringside .........................10
Courts.............................11
Is That Legal...................12
Delhi Durbar ...................14
Media Watch ..................49
Availability of essential diagnostics, proper
pricing and quality control will be the positive
takeaways once the National List of Essential
Diagnostics is formulated by the ICMR
48
Objection Overruled 44
The Kerala High Court has come to the rescue of those freely expressing themselves
against powerful people on social media
A Lucid
Interpretation
In the third of India Legal’s series on
significant judgments by former chief
justices, we bring you a verdict by former
CJI Dipak Misra on the issue of jurisdiction
of Indian courts in international arbitration
34
An Affair Gone Wrong
The Bombay High Court has ruled that phone sex does not
amount to adultery and cannot be a cause for abetment of suicide
28
FOCUS
BOOKEXTRACT
SPECIAL
By ordering a stay on the online sales of medicines, the Delhi High
Court has stopped an illegal practice which endangers health
Lakes in Peril 40
The NGT has pulled up the
Karnataka government for the sorry
state of lakes in Bengaluru and
appointed former Supreme Court
judge Santosh Hegde to head a
lake conservation panel
Building New Bridges 46
After the Kartarpur shrine in Pakistan was opened
to Indian pilgrims, the Punjab government has
proposed a land swap up to four kilometres near
the shrine by both countries
I Beg to Differ
In a post-script to the Introduction of
the reprint of the book, The Judiciary
and Governance in India, former
Home Secretary and Secretary,
Justice, Madhav Godbole talks
about recent developments and
decisions of the Supreme Court
which raise serious forebodings
HEALTH
Caught in a Web 36
Time for a Genocide Law
Sajjan Kumar’s conviction in the 1984 riots case shows the need
for such a law in India. But is there political will?
26
30
Fight Over Pollution 38
In a heartening move, the Madras High Court has set aside an NGT order which
allowed the reopening of the Sterlite Copper plant in Tuticorin
ENVIRONMENT
Quota Clamour 42
Frustration among the youth and reservation sops in Maharashtra have prompted the
Gujarat government to offer benefits for the newly-carved “unreserved classes”
STATES

10 December 31, 2018
“
RINGSIDE
“I promise you that
if, by the grace of
God, we come to
power, we will bring
the resolution of
regional autonomy
within 30 days which
will touch people’s
hearts.”
—National Confer-
ence President Farooq
Abdullah, on giving
autonomy to different
regions of Jammu and
Kashmir
“Metro should be
affordable for every-
one.... They compare
DMRC fares with
fares in global cities,
but do they also
check the GDP and
minimum wages
prevalent there?....
—Delhi Deputy CM
Manish Sisodia on the
need to bring down
Metro fares
“Talks are on to forge
a grand alliance at
the national level...
So I think everyone
should sacrifice their
ego as much as possi-
ble in the interest of
the nation and to
save the constitution
and the country....”
—RJD leader Tejash-
wi Yadav after RLSP’s
Upendra Kushwaha
joined the “grand
alliance”
“`15 lakh will not
come at a single
time, but will come
slowly. The govern-
ment does not have
so much money. The
RBI was asked for
money but they are
not giving….”
—Union Minister and
NDA partner Ramdas
Athawale on PM
Modi's comment to
bring back black
money to India
“This is just the
beginning. One after
another, there will be
more typo errors…
typo errors will soon
be visible in the JPC
issue, Rafale issue,
farm loan waiver and
demonetisation.…”
—Congress President
Rahul Gandhi to the
media on the centre
seeking correction in
the Supreme Court’s
Rafale judgment
“Many...attempted to
form an alliance,
bringing all leaders
together. If someone
is giving his own
opinion, we cannot
take this... as that of
the alliance.”
—SP chief Akhilesh
Yadav on DMK chief
MK Stalin suggesting
Rahul Gandhi as the
PM candidate for the
2019 polls
“Many industries
come but offer em-
ployment to outsi-
ders...Uttar Pradesh
and Bihar...people
from MP are dep-
rived of employment
opportunities. They
(industries) will get
incentives only if
they employ 70
percent local people.”
—Madhya Pradesh
CM Kamal Nath
“Having scrambled the egg needlessly when GST
was introduced, Government is trying to
unscramble it! Typical of NDA. BJP/NDA gover-
nance mantra is ‘Leap before you look’. Which is
the reason for the damage caused by GST to
businesses, especially MSMEs. We should have
started with 18 percent as the standard rate....”
—Former Union Finance Minister P Chidambaram, on Twitter

The Delhi High Court
quashed the summons
issued by a trial court to
Union minister Smriti Irani in
a defamation complaint filed
against her by Congress
leader Sanjay Nirupam.
Justice RK Gauba, the single
judge, however, dismissed a
plea by Nirupam seeking to
quash the summons issued
to him in a cross-defamation
complaint filed by Irani, and
said the case against Niru-
pam will continue. Irani and
Nirupam had allegedly made
“derogatory and scurrilous
comments” against each
other in a TV debate held in
December 2012 after the
Gujarat state election results,
and subsequently filed crimi-
nal defamation complaints
against each other.
Courts
—Compiled by India Legal Team
Calcutta HC stays
BJP rath yatras
Aspecial CBI court in Mumbai
acquitted all 22 accused in the
alleged fake encounter killings of
Sohrabuddin Sheikh, his wife,
Kausar Bi, and aide, Tulsiram Praja-
pati in 2005. Passing the order,
special judge SJ Sharma said the prosecu-
tion could not establish a nexus between the
accused and the alleged offences, and “210
witnesses were brought but satisfactory evi-
dence didn’t come and witnesses turned
hostile”. Sheikh, an alleged gangster, and his
wife were killed, a few days apart, in two
separate fake encounters in 2005 by the
Gujarat police. His aide, Prajapati, was killed
in another fake encounter in 2006 in a joint
operation by the Gujarat and Rajasthan
police. The police had alleged that Sheikh
was a Lashkar-e-Taiba (LeT) operative and
was on his way to Gujarat to assassinate a
major political leader. After much wrangling,
the CBI took over the case in 2010 and
charged the accused, including serving and
retired police officials, with murder and crimi-
nal conspiracy, among other charges. This
order has come as a relief for the Gujarat
government while justice continues to elude
the three victims.
Advocate Madhavi Divan has
been appointed the additional
solicitor general (ASG) in the apex
court with effect from December
17, 2018, till June 30, 2020. With
this, she becomes the third wom-
an to have been appointed ASG,
senior advocate Indira Jaising and
incumbent senior advocate Pinky
Anand being the earlier appointees.
Divan obtained a degree in English
from St Stephen’s College, Delhi
University, and then pursued law at
University of Cambridge, UK. After
starting her practice in
the Bombay HC, she
moved to the top
court where she rep-
resented two state
governments—
Gujarat and MP.
Delhi HC relief for Smriti Irani in
defamation case
While hearing a PIL seeking facilities for
street children, the Bombay High Court
asked the state government to consider con-
ducting a census of such children in Mumbai
and other parts of the state. The last such
census was conducted by the Tata Institute
of Social Sciences (TISS) in 2013 and pegg-
ed their number at over 37,000, with around
30% being girls. During the hearing, two TISS
professors, appointed as amicus curiae, out-
lined three key steps to protect them—prov-
iding night shelters, special de-addiction cen-
tres, and restarting the work of the task force
headed by the state chief secretary. After
hearing this, a bench of Chief Justice Naresh
Patil and Justice Makarand Karnik directed
the state to have a meeting of the task force
to discuss the problems faced by street chil-
dren and asked, “What has the committee
done in the past three to four years?”
Adivision bench of the Calcutta
High Court put on hold a sin-
gle-judge bench verdict, permitting
the state BJP to hold its proposed
rath yatras across West Bengal.
The bench also directed the single-
judge bench to take a fresh look at
the case and consider feedback
from state intelligence units before
taking a final call. The yatras, sch-
eduled to be flagged off by BJP
chief Amit Shah on December 7,
had to be postponed after the TMC
government twice denied permis-
sion to hold them, citing fear of
communal unrest. Following this,
the BJP had moved the HC.
Bombay HC orders census of street children
Acquittal for
Sohrabuddin
case accused
Advocate Madhavi
Divan is new ASG

ISTHAT
What is a valid will? What are the major
ingredients of a valid will? Is an “informal
will” valid?
If you are of sound mind and at least 18
years of age, you can make a will. A valid
will is one which complies with the legal
requirements set out in legislation. To be
valid, a will must be:
In writing—handwritten, typed, or printed
Signed—ideally your signature should be
at the bottom of each page and at the end
of the will
Witnessed—two adult witnesses (who
are not beneficiaries) must be present
when you sign the will, and they must also
sign at the end of the document. You and
the two witnesses must all be together
when the will is signed and witnessed.
If a will is not executed in strict compli-
ance with these requirements, it will be
considered “informal”. An informal will
may be accepted under certain circum-
stances, but it is safer to comply with
these relatively simple formalities.
How is reservation in education and jobs
considered legal when the Constitution
prohibits discrimination based on caste?
There is an exception to Article 15, which
states that there shall be no discrimination
on grounds of religion, race, caste, sex, pla-
ce of birth or any of them. The exception is
provided under Article 15(4) and says that:
“Nothing in [Article 15] or in clause (2) of
Article 29 shall prevent the State from mak-
ing any special provision for the advance-
ment of any socially and educationally bac-
kward classes of citizens or for the Sche-
duled Castes and Scheduled Tribes.” In add-
ition to Article 15(4), Article 46 requires the
State to promote with special care the edu-
cational and economic interests of the wea-
ker sections, in particular, the Scheduled
Castes and Scheduled Tribes, and protect
them from social injustice and exploitation.
Constitutional Basis
for Reservation
—Compiled by Divyansh Trivedi
Essential Components of a Valid Will
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
If I have clicked a photograph, can it be
patented or copyrighted? How does one
determine if their work is patentable or
copyrightable?
Patents are for inventions, whereas copy-
rights refer to the expression of an idea,
such as an artistic work. They are govern-
ed by different laws. Inventions that are
new, have an inventive step and are capa-
ble of industrial application can be patent-
ed under the Indian Patent Act, 2005. To
qualify for copyright protection, a work
must be original, in the sense that it is the
author's own intellectual creation, and
must exist in some physical form. Accor-
ding to Section 2(c) of the Copyright Act,
1957, “artistic work” means a painting,
sculpture, drawing (including a diagram,
map, chart or plan), engraving or photo-
graph, whether or not such work has
artistic quality. Therefore, a photograph is
an artistic work which is copyrightable
and not an invention that is patentable.
A Photograph
is Copyrightable
?
Is an Indian citizen partner
required for a foreigner or
foreign company to start a
business in India?
No, if a foreign company
wants to start a business in
India in the form of a
branch office or liaison
office or as a 100 per cent
subsidiary, then it does not
require an Indian citizen
partner. Such legal entities,
if set up with the required
permissions, can legally
repatriate the funds back to
their country at any point of
time. Only in cases of joint
ventures is an Indian part-
ner required. In addition to
that, there are restrictions
with regards to the permis-
sibility of FDI in certain sec-
tors. If it is a 100 per cent
automatic route sector, then
approval of the government
to start the business is not
necessary. In such auto-
matic route cases, paper-
work is to be done through
an authorised dealer and
approved by the Reserve
Bank of India.
Starting a
Business in India

An inside track of
happenings in Lutyens’ Delhi
Former Prime Minister Manmohan Singh,
86, called the “speak-less one” by his
critics, has as strong a presence—as well
as a voice—as he did when he occupied
the top post. He not only attends plenary
sessions of his party, seated next to
Sonia Gandhi, but is also playing a pow-
erful and active role in shaping the eco-
nomic policies platform for the Congress
in the upcoming 2019 elections.
Also, he is a master at taking sharp
but politely worded digs and jabs at
Narendra Modi. Over the years, he has
repeatedly accused Modi of using intem-
perate language unbecoming a prime
minister and advised his successor
against intemperate behaviour in public
discourse. Also, in an indirect upper-cut
to Modi on the occasion of the release of
his book, Changing India, in reference to
Modi’s never having held a press confer-
ence since he became PM, Singh said: “I
was not the Prime Minister who was
afraid of talking to the press. I met the
press regularly, and on every foreign trip
that I undertook, I had a press confer-
ence on return.” He continued: “People
say I was a silent Prime Minister, but
these volumes will speak for themselves.
I don’'t want to boast about my achieve-
ments as a Prime Minister, but the events
that took place are well described in
these volumes.”
Even though Singh suffers from long-
standing diabetes and has undergone
several open heart surgeries, he obvio-
usly has miles to go….
VOICE OF MANMOHAN
It was indeed ironical that shortly before
Kamal Nath (above) took over as Madhya
Pradesh chief minister, Sajjan Kumar
(right) was sentenced to jail by the Delhi
High Court for his role in the 1984
pogrom in Delhi in which more than 3,000
Sikhs were butchered following the
assassination of Indira Gandhi. Nath and
Kumar are both devout Congressmen
(Kumar has now resigned) whose party
was accused of egging on the massacre.
Nath was summoned before the Nanavati
Commission investigating the ethnic clea-
nsing but was exonerated due to lack
of evidence.
Nath’s opponents, including the Akali
Dal, have gone on the offensive, saying
that his elevation will create an anti-
Congress sentiment and hurt the party in
the 2019 elections. The question was
debated at length within the Congress
high command and the main factor
favouring Nath was that he, unlike Kumar,
has never been charged with a crime. In
terms of pure perceptions, will Nath’s
selection damage the Congress in Punjab
or areas with substantial Sikh voters?
The party’s top echelons, including
Punjab Chief Minister Amarinder Singh,
think not. This view is backed by intellec-
tuals like Professor Jagrup Singh Sekhon,
head of the political science department
at Guru Nanak University in Amritsar, who
said the Sikhs in Madhya Pradesh had
voted for Nath. He told Scroll: “If they do
not have any problem with him, why
would Sikhs in Punjab be bothered? Had
that been the case, the Congress would
never have come to power in Punjab after
1984. People only seek that justice is
done.” Also, the Congress has ruled
Punjab thrice since the 1984 massacre,
and Sheila Dikshit of the Congress con-
tinued her sway as Delhi CM for 15 years.
WASKAMALNATHAMISTAKE?

Delhi
Durbar
Following the merciless
drubbing received by the
ruling BJP in the three
states of the Hindi heart-
land, the party was in for
another severe embar-
rassment. Recently, when
Prime Minister Narendra
Modi visited Maharashtra
to lay foundation stones
for metro rail projects,
Kishore Tiwari, a leading
luminary of the state’s
farmers’ movement,
demanded that Modi and
party president Amit Shah
be replaced. He recom-
mended Union minister
Nitin Gadkari (below) as a
suitable alternative
to Modi.
Tiwari is the chairman
of the state government’s
Vasantrao Naik Sheti
Swavalamban Mission
(VNSSM). In his letter to
RSS chief Mohan
Bhagwat and general
secretary Bhaiyyaji Suresh
Joshi, Tiwari laid the de-
feat of the BJP in Raj-
asthan, Madhya Pradesh
and Chhattisgarh at the
feet of “arrogant leaders
who implemented devas-
tating decisions like
demonetisation, GST, fuel
prices hike and other anti-
people measures.
“Leaders who pursue
an extremist and dictatori-
al attitude in the party and
government are danger-
ous for the society and
the country... This has
been witnessed before
and if history is not to be
repeated, hand over the
reins to Gadkari for the
2019 polls.” Tiwari said
that Modi and Shah were
concerned “only in
grandiose Bullet Trains
and Metro Rail projects”.
Gadkari has not been
silent either. Even as
the Modi-Shah duo’s
star campaigner,
Yogi Adityanath,
flopped in all the
states where he
campaigned,
especially in
pushing hard on
building the Ram
Mandir ASAP, Gadkari,
speaking at a TV channel
conclave, argued that the
temple in Ayodhya should
be built through mutual
consent because it is “not
a communal or religious
issue”.
Ashok Gehlot, the irascible
and snappish new Congress
chief minister of Rajasthan,
has begun to double down
on exhibiting his political pri-
macy even though—under a
compromise formula worked
out by party chief Rahul
Gandhi following the election
triumph in the state elec-
tion—he must share power
with Deputy CM Sachin
Pilot. It is widely known that
Pilot, as PCC president,
and his Young Turk brigade,
starting in 2013, played a
major role in reviving and
bringing back to power the
Congress with 99 seats after
it had been decimated to a
puny 21 seats under Gehlot’s
last regime.
The victory margin would
have been larger had not
Gehlot—the master manipu-
lator who was a key strate-
gist in massively improving
the Congress’s performance
in the previous Gujarat elec-
tions—helped field between
15 and 20 “independent”
candidates who cut into the
Congress’s winners in Raj-
asthan and gave him a bar-
gaining chip for the top post.
Even as Pilot staked his
claim as the most prominent
leader of the campaign,
Gehlot’s refusal to budge
was backed by Congress
Old Guard stalwarts like
Ahmed Patel and Ghulam
Nabi Azad who have Sonia
Gandhi’s ear.
Even though the compro-
mise formula—CM and
deputy CM—calls for a “seat
sharing” arrangement
between die-hard Pilot loyal-
ists and Gehlot backers in
the yet-to-be formed ministry,
Gehlot has acted with light-
ning speed to move bureau-
crats loyal to him in key posi-
tions who are likely to remain
there until the
general election and do his
bidding to strengthen his
hold further. Some Cong-
ressmen call the CM-deputy
CM arrangement as akin to
two engines powering the
train forward. But what if they
pull in opposite directions?
GEHLOT’S MACHINATIONS
STRAINS IN THE PARIVAR?

Lead/ Issues Before The Supreme Court
HE Chief Justice of India
(CJI), Ranjan Gogoi, was at
his best when he delivered
the inaugural address at a
Constitution Day function
held in the Supreme Court
on November 26. Recalling the day
(November 26, 1949) when our found-
ing fathers subscribed to the constitu-
tional document and unfolded the
social, economic and political philoso-
phy for the governance of free India, he
emphasised that it brought hope to the
hearts of many Indians, heterogeneously
living in the nation.
He dwelt on the initial criticisms
voiced against the Constitution and how
time has weakened them in due course,
even if they were valid at the time of its
inauguration. One such criticism was by
Ivor Jennings, who said it was too large
and therefore, far too rigid. There can
be little disagreement with the CJI
when he said that the vigour with which
the Constitution has moved on in the
last seven decades is testimony to
its resilience.
Then he addressed another criticism
voiced by a founding father of the Cons-
titution. A member of the Assembly, this
individual was quoted as saying that
what was needed was “the music of the
Veena or the Sitar”, but they got an
“English band” instead. The member,
whom the CJI did not identify, was none
other than Kengal Hanumanthaiah. He
was a member of the Constituent Ass-
embly, representing Mysore and the
Indian National Congress. Some of his
ideas were indeed incorporated in the
Constitution: federalism and a parlia-
mentary system of government, with the
president being indirectly elected. Des-
pite the many foreign influences, the
Constitution provided the space and
opportunity for indigenous forces to
internalise it. Hanumanthaiah became
the second chief minister of Karnataka
in 1952, and later became the Union
minister for law and social welfare, and
later railways in the early 1970s. His
hostility to things foreign mellowed as
he gave up his demand to demolish the
Karnataka High Court for representing
the colonial vestige in India. But he
could ensure that the architectural style
of the Vidhana Soudha, located opposite
the High Court, was Indian.
The CJI’s purpose in recalling Hanu-
manthaiah’s words was to drive home
the point that despite many foreign in-
fluences in its making, the Indian
Constitution has today become an inte-
gral part of the Indian people. To prove
his point, he referred to “astounding
variety of issues that courts hear daily”.
It appeared as though the CJI had
left many things unsaid about these two
things: while the people consider the
Constitution an integral part of their
daily lives and seek justice from the
courts on various issues affecting them,
those who practise the Constitution day
in and day out—lawyers and judges—
have not been inspiring enough to
strengthen the people’s trust in it.
Ayear-endanalysisofkeycontroversialissuestheapexcourtwillhavetoconfrontwhenit
reconvenesafteritswinterbreak
By Venkatasubramanian
T
Promise and
Photos: Anil Shakya

This was alluded to by none other
than Attorney General (AG) KK Venu-
gopal, when he alleged in the open court
that the bench, presided over by CJI
Gogoi, was dismissing matters without
hearing them and that this was unfair
to the litigants who had come to the
apex court from far, seeking justice. The
CJI took the AG’s comment in the right
spirit, and promised to make amends.
But the feeling that the Court, in its
anxiety to expedite hearing of matters
before it, compromises on the quality of
hearing and thereby the people’s trust in
it, persists.
The key element of such trust is the
independence of the Judiciary which
can protect the Constitution against all
odds. On this issue, the signals during
the first three months of the current
CJI’s tenure have been rather mixed.
While there is a case for greater under-
standing and cooperation between the
Judiciary and the Executive on adminis-
trative matters like filling up vacancies
of judges, provision of infrastructure for
the Judiciary at all levels, etc, there
should be little interaction between the
two organs on pending matters before
the Judiciary as the government is the
major litigant.
Thus, the CJI could fill vacancies in
the Supreme Court and High Courts
with considerable ease as compared to
his predecessors, who had run-ins with
the centre.
Four new judges joined the Supreme
Court on November 2: Justices Hemant
Gupta, R Subhash Reddy, Mukesh Ku-
mar Rasikbhai Shah and Ajay Rastogi.
Of them, Justice Shah’s elevation caused
surprise, if not criticism, as he had pub-
licly praised Prime Minister Narendra
Modi as his hero. Justice Kurian Joseph,
who was part of the Supreme Court’s
Collegium which recommended Justice
Shah’s elevation from the Patna High
Court where he was chief justice said if
Justice Shah had said so, it was his view.
Meanwhile, Justice Joseph retired on
November 29, while Justice Madan B
Lokur’s term ends on December 30. The
number of vacancies in the Supreme
Court, which has a sanctioned strength
of 31, will then be five. Two more
judges will retire next year during the
current CJI’s term: Justice AK Sikri in
March and Justice Abhay Manohar
Sapre in August.
QUIET DIPLOMACY
In Justice Joseph’s view, there is nothing
wrong in the CJI interacting with the
centre to resolve pending administrative
issues. His reaction was sought to the
Performance
SincetakingchargeasCJI,JusticeRanjanGogoi(left)hasauthoredjustoneverdict.
Thisisperhapstofocusmoreonadministrativeissues.Hiscolleaguesonthebench,
JusticeSKKaul(centre)andJusticeKMJosephtogetherauthoredeightjudgments.

CJI meeting Modi when the latter want-
ed to visit Court No. 1 in the Supreme
Court on November 25. CJI Gogoi had
invited the prime minister to attend a
dinner he was hosting for judges from
the BIMSTEC countries—Bangladesh,
Bhutan, Myanmar, Nepal and Thailand.
After all, the CJI met the prime minis-
ter, in the presence of other judges, not
alone, Justice Joseph underlined.
Only a few days earlier, the centre
acquiesced to the CJI when the latter
insisted that Justice Akil Kureshi of the
Gujarat High Court, before his transfer
to Bombay High Court, be designated as
the Acting Chief Justice (ACJ) of the
Gujarat High Court for two weeks. The
centre had initially named his junior,
Justice AS Dave, as the ACJ of the Guja-
rat High Court, but later relented before
the CJI. It was still unclear, however,
why the Collegium recommended Jus-
tice Kureshi’s transfer to Bombay High
Court when he could have continued as
ACJ in Gujarat High Court. The CJI
intervened again when the Gujarat High
Court Bar was on the verge of a pro-
longed agitation against Justice Kure-
shi’s transfer. He defused the crisis by
giving an audience to its members and
seeking their cooperation in the interest
of the institution.
CONTROVERSIAL JUDGMENT
Since assuming office as CJI, Justice
Gogoi has authored just one judgment.
This is perhaps to focus more on admin-
istrative issues. His colleagues on the
bench, Justice Sanjay Kishan Kaul and
Justice KM Joseph, together authored
eight judgments.
But the only judgment CJI Gogoi au-
thored—Manohar Lal Sharma v Na-
rendra Damodardas Modi—raised seri-
ous questions about the procedure
adopted by the bench presided over by
him, and was subjected to trenchant
criticism by civil society. The case—
relating to the procurement of 36 Rafale
fighter jets for the IAF—was decided in
favour of the centre. The concerns
expressed by the petitioners over non-
compliance with established procedures
and allegations of commission of off-
ences under the Prevention of Corrup-
tion Act were simply brushed aside as
devoid of merit. The bench, without any
convincing reasons, decided that the
deal between India and France for the
procurement of the jets required no
intervention by it, let alone a roving
inquiry by it as it was satisfied that there
was no reason to doubt the process.
The centre was accused of misrepre-
senting to the Court that the Comp-
troller and Auditor General of India
(CAG) had submitted its report over the
pricing of the jets, and that the Public
Accounts Committee (PAC) of Parlia-
ment had examined it. The misrepre-
sentation became the basis of a factual
error which crept into the judgment.
The centre, in a fresh application before
the Court, sought corrections in the jud-
gment, saying some words mentioned in
its report submitted to it in a sealed
cover got twisted to convey a meaning
contrary to facts.
The centre claimed that it only
Lead/ Issues Before The Supreme Court
CJIGogoiwasabletofillvacanciesintheSCandHighCourtswithconsiderableease
ascomparedtohispredecessors.ThenumberofvacanciesintheSCbytheyear-end
willbefiveaftertheretirementsofJusticesKurianJoseph(right)andMadanBLokur.
Anil Shakya
Twitter

sought to convey the normal procedure
with regard to consideration of the CAG
report by the PAC, and not the facts as
such. The words, “the report of the CAG
is examined by the PAC”, became “the
report of the CAG has been examined by
the PAC” in the judgment. “Only a re-
dacted portion of the report is placed
before the Parliament and is in public
domain” became “only a redacted por-
tion of the report was placed before the
Parliament and is in public domain”.
While the Court adjourned for the
Christmas and New Year vacation on
December 14, the controversy over
whether the bench ought to recall its
judgment in the wake of the faux pas
raged. Critics of the judgment found it
odd that the bench, comprising judges
known for their judicial acumen, could
accept the claims of the centre at face
value rather than subject them to seri-
ous scrutiny. Others wondered whether
the jurisprudence of “sealed covers”
adopted by the bench to keep undis-
closed the pricing details shared with it
by the government was appropriate to
deal with such cases.
Substantial errors, on which the
judgment was based, went unnoticed
because the petitioners were unaware of
what was mentioned in the sealed cov-
ers, it was pointed out. Others were out-
raged that the Court frequently resorted
to sealed covers to decide issues of gov-
ernance and felt it would alienate the
public who consider the Constitution an
integral part of their lives. Dismissal of
petitions raising serious issues of public
interest and alleging violation of funda-
mental rights on the basis of contents in
sealed covers would shake the confi-
dence of the people in the courts, be-
sides widening the gap between them
and the judiciary, it was felt.
While the controversy over the
Rafale judgment is unlikely to die down
when the Court reopens next year,
another bench of the Supreme Court
quietly turned down the centre’s
demand that it should not monitor the
CBI’s probe into the extra-judicial
killings in Manipur by the armed forces
on the ground that the morale of the lat-
ter was likely to suffer. The bench of
Justices Lokur and UU Lalit dismissed
the centre’s plea seeking its recusal from
continuous monitoring of the case, say-
ing the morale of the armed forces is not
likely to suffer erosion by inaccurate
reporting of the observations of the
judges dealing with the case.
Justice Lokur, whose last working
day was December 14 (as he retires on
December 30, 2018), observed at a
farewell function organised by the
Supreme Court Bar Association: “It is
very important to maintain the inde-
pendence and integrity not only of the
judiciary, but also of the Bar; Bar has to
remain independent and cannot be sub-
ordinate to the Bench or to any other
authority or institution.”
When the Supreme Court reopens
after the holidays, the independence of
the Bar as well as the bench will be on
trial in the wake of its Rafale judgment
and the likely outcomes of cases relating
to the CBI’s internal crisis, right to wor-
ship for women of menstruating age at
Sabarimala (review) and the Babri
Masjid title dispute.
The outcomes in these cases will
show whether the judiciary has been
able to uphold the people’s confidence in
it by fulfilling its role as a neutral and
unbiased arbiter, while narrowing the
gap between the Constitution’s promise
and performance.
WhentheSupremeCourtreopensaftertheholidaysin2019,theindependenceof
theBarandthebenchwillbeontrialinthewakeofitsRafalejudgmentandcasessuch
astheBabriMasjidtitledispute,entryofwomenofallagesintotheSabarimala
TempleandtheCBI’sinternalcrisis.
UNI

Supreme Court/ Potholes
N December 6, a Supreme
Court bench of Justices
Madan B Lokur, Deepak
Gupta and Hemant Gupta
took notice of the shock-
ing number of deaths
caused by potholes. During the period
2013-17, a total of 14,926 people lost
their lives in various parts of the country
due to the menace of potholes. Earlier
in the year, the same bench rapped the
central and state governments for the
rise in pothole deaths. In fact, the num-
ber of people killed in 2017 due to pot-
holes was 3,597 compared to 2,324
in 2016.
Saying that the number of deaths
due to potholes far exceeded those
caused by terrorist attacks, the bench
asked the Supreme Court-appointed
road safety committee headed by Justice
KS Radhakrishnan to look into the
matter in July. In the December 6
hearing, the bench asked for a response
from the centre.
The case in question was a writ
petition filed by S Rajaseekaran, an
orthopaedic surgeon and chairman and
head of Department of Orthopaedic
Surgery in Ganga Hospital at Coimba-
tore in 2014. He had sought the Court’s
intervention for strict enforcement of
the prevailing laws under Article 32 of
the Constitution. His petition also
sought directions from the Court for
Split Wide Open
TheCourthasheldauthoritiesresponsiblefordeathsdueto
thismenace.ButuntiltheMotorVehiclesAmendmentBillgets
passed,therewillbenocompensationforsuchdeaths
By Papia Samajdar
O
SILENT KILLER
A road filled with potholes
in Mumbai, a common sight
during the monsoon
newsmobile.in

infrastructure upliftment, post-accident
care facilities and minimisation of fatali-
ties in road accidents.
Potholes are a common sight on
Indian roads. They increase in number
and size every monsoon. But why is this
so? In order to be durable, a road req-
uires proper design, quality material
used in construction, labourers’ skills
and drainage systems. One of the
biggest reasons behind potholes after
the rains is a combination of thin or
incorrectly compacted road bed and
inadequate drainage. During rain, water
collects in the soil under the road bed,
and if this is not thick enough, it
becomes unstable. This reduces its load-
bearing capacity and weak spots are
formed, leading it to collapse.
Prithvi Singh Kandhal, associate
director (emeritus) at the National
Centre for Asphalt Technology, US, told
India Legal: “There is a fundamental
engineering problem in roads which is
not common public knowledge. Of the
10 types of bituminous paving mixtures
specified and used in India, seven are
water trapping and only three are
dense-graded and of desirable mixture.”
In 2015, India committed to improv-
ing road safety under the Brasilia Decla-
ration on Road Safety which called for
stringent laws to prevent road accidents.
Tied to the 2030 UN Sustainable Dev-
elopment Goals, India along with other
participants committed to reducing by
2020 the number of deaths caused due
to road accidents by half.
The Motor Vehicles (Amendment)
Bill, currently in the Rajya Sabha, seeks
to make existing laws stringent both for
road users and for those responsible for
their construction and maintenance.
The government is following a four-
pronged strategy to address road safety
based on the four Es—education, en-
forcement, engineering and emergency
care. From including chapters on road
safety in school textbooks to conducting
road safety audits, increasing penalties
for traffic defaulters and hiking compen-
sation for accident victims, the Motor
Vehicles (Amendment) Bill is a positive
act. The Bill has been passed in the
Lok Sabha.
In 2015, Nitin Gadkari, the Union
transport minister, stated that all new
central road projects would be made of
concrete. Concrete pavements are
superior to bitumen or flexible pave-
ments. “It requires less maintenance,
sustains climatic extremes better, and is
eco-friendly. Well-made rigid pavements
are long-lasting and suffer no damage,”
said Sanjay Londhe, director, Ashoka
Buildcon, a construction engineering
company.
O
n March 9, 2017, the govern-
ment approved a National Road
Safety Policy. According to this
policy, road safety was made a part of
road design. Identification and rectifica-
tion of accident-prone spots or black
spots have been accorded the highest
priority. Apart from that, ambulances are
to be provided at gaps of 50 km across
highways and road safety audits have to
be taken up. On November 30, 2017, the
Supreme Court had issued additional
guidelines to governments to come up
with a road safety action plan by March
31, 2018. The guidelines included setting
up of State Road Safety Councils,
District Road Safety Committees, Lead
Agency, creation of a Road Safety Fund
and a permanent road safety cell.
In October 2017, the Lokayukta had
initiated suo moto proceedings against
civic authorities in Bengaluru for deaths
caused due to potholes. The Lokayukta
held them accountable for the sub-
standard work done by the contractors
and the supervision thereof by the
authorities.
In Maharashtra, the government
recently tweaked the tender norms of
road contractors in order to break their
monopoly and bring in transparency.
The previous norms allowed the partici-
pation of only those firms which were
licensed with the Department of Public
TheSupremeCourtbenchofJusticesMadanBLokur(left),DeepakGupta(centre)
andHemantGuptasaidthenumberofdeathsduetopotholesfarexceededthose
causedbyterroristattacksandaskedthecentretorespondontheissue.
“There’safundamentalengineering
probleminroads.Ofthe10typesof
bituminouspavingmixturesusedinIndia,
onlythreeareofdesirablemixture.”
—PrithviSinghKandhal,associatedirector
(emeritus)attheNationalCentrefor
AsphaltTechnology,US

Supreme Court/ Potholes
Works. This has been discontinued and
now all contractors can participate.
These norms have been made applicable
to roads, bridges, building construction
and maintenance contracts.
The performance of roads is depend-
ent on the quality of construction more
than the design recommendations.
According to the Supreme Court guide-
lines, there is a need for regular road
safety audits. The same is also mention-
ed in the National Road Safety policy.
However, there is a dearth of qualified
auditors in road safety engineering.
Availability of good quality material
for road construction is another challe-
nge faced by the industry. India lags in
exploring new materials, technologies
and equipment which can improve the
structural strength of roads, impacting
their durability considerably. Eighty per-
cent of India’s road network is for rural
roads. Construction of a sustainable
road surface for low-volume roads is a
challenge, according to A Veeraragavan,
professor in the Department of Civil
Engineering, IIT Madras.
As for deaths caused by potholes, the
Supreme Court on December 7 held the
authorities responsible for road mainte-
nance accountable. However, there is no
law to hold them legally accountable.
Until the Motor Vehicles (Amend-
ment) Bill gets passed, there is no way
to ensure compensation for deaths
caused due to potholes. The Court asked
the states and UTs to come up with a
remedy for monetary compensation.
According to the data shared by the
states with the Supreme Court comm-
ittee, Tamil Nadu reported 877 fewer
deaths due to road safety measures,
followed by Andhra Pradesh and West
Bengal. The overall reduction of deaths
nationwide in all kinds of road accidents
was three percent in 2017.
The Motor Vehicles (Amendment)
Bill, if passed, will help in plugging the
gaps in existing laws. It will hold buil-
ders accountable for poor quality of
infrastructure. Contractors, consultants
and civic agencies will be held accounta-
ble for faulty design, poor construction
and lack of road maintenance—leading
to accidents.
That will be a good move, indeed.
In August 2018, a toddler fell out of an auto-rickshaw in Kolkata when the driver
tried to swerve past a pothole at top speed.
In July 2018, a 40-year-old woman was crushed to death in Mumbai after the
scooter she was riding pillion on hit a pothole (see picture above). The incident
was caught on CCTV camera and showed the driver losing control after hitting the
pothole. As both the riders slipped, a bus ran over the woman.
On October 28, 2017, a 61-year-old businessman in north Delhi fell off his scoot-
er after hitting a pothole. In spite of wearing a helmet, he bled to death and was
declared brought dead by doctors. While passers-by told his family that the acci-
dent was caused by a pothole, the PWD denied it.
In July 2017, an 18-year-old boy died while trying to dodge a pothole filled with
water during rain in Mumbai. He was riding a scooter and not wearing a helmet. He
hit his head on the ground after losing control of the scooter. His elder brother, who
was riding pillion, also got hurt. Passers-by did not stop to help the brothers and
medical help was delayed.
Tragicdeaths
In2015,NitinGadkari,theUniontrans-
portminister,statedthatallnewcentral
roadprojectswouldbemadeofconcrete.
Concretepavementsaresuperiorto
bitumenorflexiblepavements.CRUEL FATE
A woman in Mumbai fell off a scooter after
hitting a pothole and was run over by a bus

in the case. All were local leaders of the
Congress. Three other accused were in
custody from 2013. The aggrieved fami-
lies, along with the CBI, filed a petition
in the High Court against that decision.
The High Court concluded that “whe-
re there has been a manifest irregularity
in the appreciation of evidence by the
trial Court, the appellate Court might
interfere with the judgment of acquittal
by the trial Court and instead convict the
accused if it is satisfied of their guilt”.
The Court mentioned that while Kumar
had organised peace rallies, blood dona-
tion camps and helped in the rehabilita-
tion of victims of the 1984 violence, it
cannot take away his guilt. It said that
“this cannot take away from his involve-
ment in the riots in the first place which
Courts/ Sajjan Kumar Conviction
USTICE delayed can often seem
like justice denied. In the case of
some victims of the anti-Sikh riots
of 1984, it arrived 34 years later.
Recently, the Delhi High Court
reversed a trial court’s verdict and
convicted Sajjan Kumar, a former
Congress MP, to spend the rest of his life
in jail for his involvement in the riots.
The Court asked him to surrender by
December 31. He filed an appeal seeking
30 days to surrender but the Court dis-
missed it.
In 2013, a trail court had acquitted
Kumar of all charges. It was alleged that
he orchestrated the killings of five Sikhs
and helped in burning down a gurud-
wara in Delhi’s Raj Nagar. The case was
brought forward by the CBI, and the
Delhi High Court proceeded to convict
him for the “offences of criminal conspir-
acy and abetment in the commission of
the crimes of murder, promoting enmity
between different groups on grounds of
religion and doing acts prejudicial to
maintenance of communal harmony,
defiling and destruction of the
Gurudwara by burning”. The High Court
termed the mass killings as “crimes
against humanity” and said that it would
continue to shock the “collective con-
science of the society”.
Kumar is the first senior leader of the
Congress to be convicted. Following the
conviction, the 73-year-old leader resi-
gned from the Congress. The riots shook
Delhi in the aftermath of the assassina-
tion of Indira Gandhi, the then prime
minister, by her Sikh bodyguards. Over
2,700 people were killed in Delhi alone.
The 200-page judgment talked at
length about the circumstances sur-
rounding the events of 1984. The bench,
comprising Justices S Muralidhar and
Vinod Goel, condemned the apathy of
the Delhi Police in taking proper action
in the matter.
It stated that the “abject failure by the
police to investigate the violence which
broke out in the aftermath of the assassi-
nation of Smt Indira Gandhi is apparent
by several circumstances”. The bench
said that it was peculiar that despite
there being as many as 341 deaths, only
21 FIRs were registered over four days.
And of these, only 15 were related to
murders/deaths. The Court mentioned
that for each murder, there needed to be
a separate FIR. The High Court upheld
the trial court judgment which had con-
victed five other accused—former coun-
cillor Balwan Khokhar, former legislator
Mahender Yadav, Krishan Khokar,
Girdhari Lal and retired naval officer
Captain Bhagmal—for their involvement
Justice after 34 Years
Inapainfulclosureforthefamiliesofsomevictimsofthe1984riots,theDelhiHighCourt
sentencedformerCongressMPSajjanKumartospendtheremainderofhislifeinjail
By Naved Ahmed
J
PAST CATCHES UP
The HC has quashed Sajjan Kumar’s (centre)
request for more time to surrender
uni

all around them.”
It said that the “criminals have enj-
oyed political patronage” but “it is imp-
ortant to assure the victims that despite
the challenges truth will prevail”.
The CBI had filed an appeal against
Kumar after the 2013 verdict of the trial
court, alleging that the mobs were
engaged in a “planned communal riot”
and “religious cleansing”.
The High Court refused to deal with
the matter in a lenient way. It realised
the extraordinary nature of the case
where there were efforts to intimidate
the victims’ families and
where cases against
Kumar were suppressed
by not even recording or
registering them.
“Even if they were
registered they were not
investigated properly and
even the investigations
which saw any progress
were not carried to the
logical end,” the order
said.
The judgment clearly
stated the cunning and
mala fide intentions of
the perpetrator. There
was a two-pronged strategy adopted by
the attackers, it said.
“First was to liquidate all Sikh males
and the other was to destroy their resi-
dential houses leaving the women and
children utterly destitute. The attack
on the Raj Nagar Gurudwara was clea-
rly a part of the communal agenda of
the perpetrators.”
The bench stated that it was common
for crimes against humanity to target
minorities and they were “spearheaded”
by dominant political parties. And due
to their political background, these
politicians keep evading prosecution and
punishment. Besides this case, there are
other cases against Kumar (see box).
This judgment shows that no one is
above the rule of law, no matter how big.
There is now hope among families of
other victims that the perpetrators of
crime will be eventually brought to book.
India has seen numerous riots since
Independence which have targeted
minorities and disadvantaged groups
and this judgment proffers hope that
justice will finally be done.
One Anwar Kaur alleged that
Sajjan Kumar had instigated a mob
that lynched her husband Navin
Singh in Sultanpuri. This case was
initiated by the CBI, but on Dec-
ember 23, 2002, the district court
acquitted Kumar and the other accu-
sed, stating that “evidence fails mis-
erably to prove the case against
Sajjan Kumar”. The case is pending
on appeal.
Another Sultanpuri case has been
pending in the Patiala House Courts
since 2005. It took five years for the
trial court to frame charges in this
case as Sajjan Kumar had appealed
in the High Court. It was only in 2013
that the trial began.
A Special Investigation Team was
set up in February 2015 on the direc-
tion of the home ministry to re-inves-
tigate closed cases and it registered
two FIRs against Sajjan Kumar. The
trials in those cases are yet to com-
mence. The two FIRs are based on
complaints about killings in Janak-
puri and Vikaspuri. In the first case,
one person was killed and in the
second, a person was set on fire and
suffered severe burns. He remained
bedridden for decades and died a
few years ago.
resulted in the murders of the five
deceased in the present case”.
T
he Court did not sympathise with
Kumar’s claim that the political
support of Sikhs rests with him. It
said: “The Court also cannot agree with
his description of the violence as being
the result of a ‘self-evoked provocation
which resulted in an outburst of crime in
Delhi and other parts of the country’
when thousands of Sikh men, women,
and children have been butchered while
the law and order situation deteriorated
TheDelhiHighCourtbench,comprising
JusticesSMuralidhar(left)and
VinodGoel,condemnedtheapathyof
theDelhiPoliceintakingproperaction
inthe1984riotscases.
Awaiting
justicetoo
There are other cases involving
Sajjan Kumar:
VIOLENT ACTS
Angry mobs pelting stones
at Sikhs’ houses in Delhi
in 1984
sikh24.com

yer HS Phoolka, who represented the
1984 victims, had said it showed the cr-
eeping criminalisation of Indian politics.
“Before the 1984 riots, there were no
criminals in politics. Criminals followed
politicians. But 1984 made them realise
people leading mobs and killing others
could get elected and become leaders. So
a way was opened for criminals to make
politics a profession,” he said.
This probably sums up the problem
in handling mass killings—political
actors and subservient law enforcement
agencies conniving to protect criminal
elements. Politics rides on the back of
governance like King Vikram’s Vetala, a
spirit that would not get off, until the
King solved the riddle. Unfortunately,
governance is not the king in our case, so
it is the politician, the Vetala, who solves
the riddle to suit his end.
The judges also called for changes in
criminal law to include specific offences
for “crimes against humanity” and “geno-
cide”. Such a loophole allowed the
accused responsible for mass crimes to
evade prosecution and punishment. The
bottomline is that India has not defined
Column/ Mass Killings Colonel R Hariharan
HE sentencing of Congress
leader Sajjan Kumar to life
imprisonment for his role
in the 1984 anti-Sikh riots,
where more than 2,700
were killed in the capital, is
not the first case of mass killing. Nor is it
the first time when the long arm of the
law was not strong enough to deliver
justice as the accused had the right polit-
ical connections.
This is an apt case study for a host of
things that are wrong with our law en-
forcement, judicial system, criminal
prosecution, et al. When it comes to han-
dling real life cases, particularly mass
killings like the 1984 anti-Sikh massacre,
politics seems to take precedence over all
other considerations.
In this context, the observations of
the Delhi High Court bench of Justices
S Muralidhar and Vinod Goel while con-
victing Sajjan Kumar are relevant. They
said “cases like these are to be viewed in
the larger context of mass crimes that
require a different approach”. Noting
that in Delhi alone, 2,733 Sikhs were
killed and nearly 3,350 Sikhs done to
death all over the country, the judges
said this was “neither the first instance of
mass crime, nor tragically, the last”.
They indicated a familiar pattern of
killings in Mumbai in 1993, Gujarat in
2002, Kandhamal, Odisha, in 2008 and
Muzaffarnagar in UP in 2003. The com-
mon link in such crimes was targeting of
minorities and “attacks spearheaded by
dominant political actors being facilitat-
ed by law enforcement agencies”.
While they were stating the obvious,
this is not the first time judges have
made such a statement. On August 21,
2009, additional sessions judge Surinder
S Rathi in Delhi had found three persons
guilty of rioting, attempt to murder and
arson. He had observed: “Though we
boast being the world’s largest democra-
cy and Delhi the national capital, the
sheer mention of the incidents of 1984
anti-Sikh riots in general and the role
played by Delhi Police and state machin-
ery in particular makes our heads hang
in shame in the eyes of the world polity.”
In a way, the 1984 riots were a water-
shed in Indian politics. Delhi-based law-
How About
a Law for
Genocide?
SajjanKumar’sconvictionshows
theneedforthislawinIndiawhich
hasoftenbeenrockedbypogroms.
Butistherepoliticalwilltodoso
whenitcouldleadtoprosecution
ofpublicservants?
T
CRIME AND COMPLICITY
Vehicles burnt during the Gujarat riots
Pramod Pushkarna
ThoughtheModigovernmentshowed
alacrityinreopeningtheriotscaseof
SajjanKumar,itseemstobeinnohurry
torecognisetheneedforenactinglaws
aspertheUNConventionongenocide.

genocide by law, though the UN conven-
tion on genocide ratified it in 1959. “Ge-
nocide” does not find a place in the In-
dian Penal Code.
The UN General Assembly adopted
the Convention on the Prevention and
Punishment of the Crime of Genocide on
December 9, 1948, as Resolution 260. It
came into force on January 12, 1951. And
on December 2017, 149 states ratified or
acceded to the treaty. India had partici-
pated in the 1948 genocide convention
and contributed to its drafting. India rat-
ified it on August 27, 1959.
A
ctually, by ratifying the conv-
ention, India has recognised
genocide as an international
crime, which it has undertaken to pre-
vent and punish as per Article I of the
Convention. It has also undertaken to
enact the necessary legislation “to give
effect to the provisions” of the Conven-
tion, to provide effective penalties for
persons guilty of genocide or any other
acts related to genocide through a com-
petent tribunal.
The Convention in Article II defines
genocide as “any of the following acts
with intent to destroy, in whole or in
part, a national, ethnic, racial or reli-
gious group, as such: (a) Killing mem-
bers of the group; (b) Causing serious
bodily or mental harm to members of
the group: (c) Deliberately inflicting on
the group conditions of life calculated to
bring about its physical destruction in
whole or part; (d) Imposing measures
intended to prevent births within the
group; (and) (e) Forcibly transferring
children of the group”.
Article III renders punishable not
only acts of genocide but other acts
related to it like conspiracy to commit
genocide, direct and public incitement
to commit genocide, attempt to commit
genocide and complicity in genocide.
Though the Narendra Modi govern-
ment showed alacrity in reopening the
1984 anti-Sikh riots case of Sajjan
Kumar, it still does not seem to be in a
hurry to recognise the need for enacting
laws in conformity with the UN con-
vention on genocide. In fact, in the Raj-
ya Sabha on March 2, 2016, a question
was raised about the government’s plans
in enacting laws in conformity with the
UN convention on genocide and racial
discrimination and, if not, reasons for
not enacting them. Answering the ques-
tions, Kiren Rijiju, minister of state for
home, said:
“By acceding to the Convention on
the Prevention and Punishment of the
Crime of Genocide in 1959, India has
recognised genocide as an international
crime. The principles embodied in the
Co-Convention are part of general
international law and therefore already
part of common law of India. The
provisions of the Indian Penal Code
including the procedural law (Criminal
Procedure Code) provide effective penal-
ties for persons guilty of the crime of
genocide and take cognisance of the acts
which may be otherwise taken to be in
the nature of genocide.”
The catch in the minister’s contention
that the provisions of the IPC, including
the procedural criminal law, “provide
effective penalties for persons guilty of
crime of genocide” is flawed because
genocide is not defined in the IPC. This
probably shows the government’s reluc-
tance to enact separate laws to handle
genocide and crimes related to it because
Article IV of the UN Convention says
“persons committing genocide or any
other acts enumerated in Article III shall
be punished, whether they are constitu-
tionally responsible rulers, public offi-
cials or private individuals”. In other
words, a separate law for genocide would
mean sacrificing the protection given to
public servants from prosecution under
Section 197 of the Code of Criminal
Procedure, 1973, which had been used to
prevent and delay prosecution of guilty
public servants.
But Article 51(c) of the Constitution
enjoins the State to “foster respect for
international law and treaty obligations”.
Article 253 mandates the Parliament “to
make any law for implementing any
treaty, agreement or convention”. So both
the government and Parliament have an
obligation to enact separate laws for
genocide and related acts as required by
the UN Convention.
HL Mencken, editor of The Baltimore
Sun, described democracy as the art
and science of running a circus from the
monkey cage. As the world’s largest
democracy, we seem to be a living exam-
ple of it.
Bangladesh was able to overcome
both domestic and international road-
blocks to prosecute those involved in the
mother of all genocides in the run-up to
its independence? Why can’t we?
—The writer is a military intelligence
specialist on South Asia, associated
with the Chennai Centre for China
Studies and the International Law
and Strategic Analysis Institute
“Beforethe1984riots,therewereno
criminalsinpolitics...But1984
madethemrealisepeopleleading
mobsandkillingotherscouldget
electedandbecomeleaders.”
—HSPhoolka,Delhi-basedlawyer
Aseparatelawforgenocidewould
meansacrificingtheprotectiongiven
topublicservantsfromprosecution
underSection197oftheCode
ofCriminalProcedure,1973.

Courts/ Abetment
N what has come as relief for a
woman convicted under Section
306 of the Indian Penal Code (IPC)
for abetment of her husband’s sui-
cide in a case of phone sex, a single
bench of Justice Mridula Bhatkar
of the Bombay High Court set aside the
order of a sessions judge.
A Thane-based banker had set him-
self on fire in his house in July 2015. His
father alleged that he was subjected to
harassment and ill-treatment by his
wife, and when he came across objec-
tionable communication between a
friend of his and his wife on the phone,
he was disturbed and informed his
father that he may commit suicide.
However, according to the wife, there
was no trust in their relationship and
neither of them was happy with the
other. But she had no intention of dis-
closing the communication she had with
the friend to her husband, and hence
there was no intention on her part to
make him commit suicide.
Justice Bhatkar, after hearing both
parties, was of the view that though
there was evidence to show that there
was harassment and nagging, it cannot
be said that there was abetment of
suicide. The phone communication was
done secretly so that it would not come
to the knowledge of the deceased.
The Court also observed that phone
sex does not fall within the definition of
adultery, as defined under Section 13(1)
of the Hindu Marriage Act.
The Act states that adultery means
having voluntary sexual intercourse with
a person other than the spouse. At the
time when the Act was made, lawmak-
ers had no idea about the existence of
phone sex.
Hence, phone sex cannot be termed
adultery but is an act of unfaithfulness
and infidelity. Such acts do not consti-
tute mens rea which is an essential
element for abetment of suicide under
Section 107 of the IPC.
Moreover, the Court was of the view
that if the accused had deliberately dis-
closed the phone sex to the deceased
and repeated it despite a warning given
by him that it would drive him to sui-
cide, then she would have been guilty of
abetment.
But in this case, the judge said no
such intention could be made out. The
Court further said that though the act of
committing suicide by the husband, who
was deeply hurt by his wife’s behaviour,
was very unfortunate, the latter had not
abetted the suicide.
Further explaining the word
“abetment” in Section 306 by linking it
with Section 107 of the IPC, the Court
observed that “life is never throughout a
bed of roses but there are difficulties,
fights, failures what is called wear and
tear of life. Every individual reacts dif-
ferently to the situation depending on
his or her mindset. Some persons are
strong and some are weak.
“Thus, the impact of reaction to a
particular incident is always different
from person to person and therefore,
the lawmakers of Indian Penal Code
who drafted Section 306 have linked
it with Section 107 by using the
word abetment”.
Not a Case
of Adultery
TheBombayHChasruledthatphone
sexisanactofunfaithfulnessbutcan’t
beheldasabetmentofsuicide
By Shaheen Parween
I
A DIFFERENT VIEW
The Bombay High Court set aside the order
of a sessions judge in the case
TheHighCourtwasoftheviewthat
iftheaccused(wife)haddeliberately
disclosedthephonesextoher
husband,thenshewouldhavebeen
guiltyofabetment.
wikipedia
Anthony Lawrence

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and remained inactive. As a result,
issues of centre-state relations have had
to be agitated in the Supreme Court.
It is unbelievable but matters such as
in-fighting in the CBI had to be taken to
the Supreme Court, instead of being
dealt with by the government adminis-
tratively. Normally, a controversy such
as the Rafael contract should have been
debated in Parliament. If necessary, a
parliamentary committee could have
been appointed to look into allegations
T has been a decade since I wrote
the above introduction. This has
been a significant decade which, for
the first time, has given rise to seri-
ous forebodings about the role of
the judiciary. This is particularly worri-
some considering the unique position
which the judiciary occupies in India’s
national life.
Of the three organs of the state, the
judiciary continues to be the most trust-
ed, enjoying the highest public credibili-
ty. The Supreme Court has been the
court of first, rather than the last, resort.
Since Parliament has become irrelevant
for resolving any major issues, the Sup-
reme Court had to step in even in mat-
ters such as electoral reforms.
In a politically fragmented polity,
Constitutional bodies like the National
Development Council and the Inter-
State Council have become irrelevant
of irregularities and corruption. But
since these instruments of democratic
governance and accountability have
become non-functional and have lost all
credibility, the issue had to be raised in
the Supreme Court. In no other country,
the judiciary has been asked to take a
hand in the governance of the country
to this extent.
It is for this reason that some recent
developments, stance and decisions of
the Supreme Court raise serious con-
cerns and forebodings.
The press conference held by the
four senior-most judges of the Supreme
Court on January 12, 2018 was most dis-
concerting and unsettling for common
stake-holders. It was more shocking to
see that the concerned judges did not
see anything wrong in having taken the
step. No one was surprised at the inter-
nal dissensions among the judges of the
Supreme Court. This is not uncommon
in any institution, particularly one in
which there is so much talent and schol-
arship under one roof.
In his press conference after his
retirement, Justice Kurian Joseph has
dilated on a number of issues which led
to the holding of the press conference.
These included roster and the manner
In a post-script to the Introduction of the reprint of
the book, “The Judiciary and Governance in India”,
which is being brought out by Rupa Co, former
home secretary MADHAV GODBOLE talks about
recent developments and decisions of the Supreme
Court which raise serious forebodings
AcontroversysuchastheRafael
contractshouldhavebeen
debatedinParliament....
But...theissuehadtoberaised
intheSupremeCourt.
I
“Judiciary Cannot be
a Law unto Itself”
Books/ The Judiciary and Governance in India

for Muslims and the Dhangar commu-
nity soon. Another important case per-
tains to review of the Supreme Court
decision in the Hindutva case. The
importance of this case needs no special
emphasis in the current context of clam-
our for declaring India a Hindu
Rashtra. The same thing is true of the
case pertaining to constitutional validity
of Article 35A of the JK Constitution
in which the hearing was postponed by
the Supreme Court recently. The case of
constitutional validity of the resettle-
ment law of JK has reportedly been
pending for over three decades.
Some time ago, the then chief justice
of India had talked about how difficult it
was to spare judges for deciding consti-
tutional issues. If this is so, should the
Supreme Court not be split up and a
separate apex court established only for
deciding constitutional matters? After
all, the issues involved therein are of
national importance and keeping them
pending for years together is not in the
public interest. The Law Commission of
India may be asked to examine the sub-
ject in depth and prepare a paper for
national debate and discussion.
Judicial reforms have been talked
about by every in-coming and out-going
CJI in recent years. The number of
pending cases at all levels continues to
be as staggering as ever. Some judges
in which it was decided upon, even
granting that the chief justice is the
master of the roster; systems and prac-
tices which were considered necessary
but were not being introduced; and
the need to set up an administrative
committee in the Supreme Court as in
the High Courts. (IE, 1 December 2018,
p. 10)
Though systemic issues and trou-
bling practices have been there all along,
it is for the first time that they were
aired publicly in such a shocking man-
ner. Why had the demand for a collec-
tive leadership become so important
only now? By contrast, there were times
when the Supreme Court exhibited
exemplary unity and all judges offered
to resign when the senior-most judge
was proposed to be superseded in the
appointment of the chief justice. The
esprit de corps has been lost since a long
time, with each judge acting for himself.
This has permanently damaged the
image and public esteem of the highest
court of the country and it will take a
long time before this unsavoury memory
is erased from public mind.
A
dministrative decision-making in
the Supreme Court has always
been considered to be opaque by
the stake-holders. For example, there
are no “speaking orders” on why and for
how long hearing in important cases is
put off. The Ramjanmabhoomi-Babri
Masjid matter is a case in point. There is
reason to believe that if the decision in
this long pending case had not been put
off, the Babri Masjid could have been
saved from demolition by mob violence
in 1992. The sudden postponement of
the hearing in this case from November
2018 to January 2019, and that too not
for a substantive hearing but only for
deciding procedural and other issues,
has led to a dangerous and virulent poli-
ticisation of the issue. It will be counter-
productive to trivialise the importance
of this case by treating it as just a land
dispute. It is of utmost satisfaction that
even on such an emotive and politically
explosive issue, both sides, Hindus and
Muslims, have been patiently waiting
for the decision of the apex court. It is in
national interest that this respect for the
judiciary is not permitted to be under-
mined, consciously or unconsciously.
The same thing can be said about
several other important matters which
have been pending for decades together.
One such case pertains to reservation of
69 per cent granted in Tamil Nadu,
which is way beyond the limit of 50 per
cent laid down by the Supreme Court.
This issue is of utmost national impor-
tance considering the agitation for
reservations by dominant communities
such as Jats and Patels in some states.
The government of Maharashtra has
recently given 16 per cent reservations
to Marathas taking the total reserva-
tions in the state to 68 per cent, even
without placing the report of the Back-
ward Classes Commission before the
state legislature. The state government
is also likely to announce reservations
Inhispressconferenceafter
retirement,JusticeKurian
Josephhasdilatedonissues
whichledtotheholdingofthe
SCjudges’pressconference.
Anil Shakya

ing and complex issues pertaining to
judicial reforms will be addressed in
the dialogue.
Speaking at the second J. Dadachanji
memorial debate in December 2018,
K.K. Venugopal, attorney general of
India, has invited attention to two im-
portant aspects of the working of the
judiciary. He has rightly asserted that
of the Supreme Court and chief justices
of high courts, on retirement, have
talked eloquently on the subject. One of
them is Justice Kurian Joseph (IE,
December 9, 2018, p. 7). One of the past
CJIs had even shed tears on the plight of
court litigants. In spite of this acute
awareness of the seriousness of the
problem, there has been no perceptible
change in the situation. I have discussed
this matter at length in the book. On
taking over charge, present CJI Ranjan
Gogoi has assured that this subject will
receive his close attention. Justice
Kurian has stated in the “Idea
Exchange” referred to above that “the
present CJI is going to have regular dia-
logue with the head of nation”. This is
reassuring. Let us hope the long-pend-
the Supreme Court has taken over more
powers than any other apex court in any
other country. Venugopal has also hoped
that the concept of Constitutional mora-
lity newly invented by the Supreme
Court dies soon. Both these concerns are
valid and need to be debated nationally.
I am particularly worried about the first
concern. Such fears were also expressed
by Jawaharlal Nehru who had asserted
that the apex court should not be per-
mitted to be the third chamber of Par-
liament. As I have brought out in the
book, we have come a long way since
then. And I have no quarrel with it as
the judiciary has come to occupy the
legislative space which had remained
vacant for too long a period. Thus, for
example, the subject of electoral reforms
was being deliberately soft-pedalled by
political parties and by whichever gov-
ernment came to power. Even after the
Supreme Court decision directing intro-
duction of some reforms, all political
parties ganged up to oppose them.
A
nother case was of resistance to
legislate a law for the Lokpal.
Finally, it was because of Anna
Hazare’s agitation and the mass upsurge
that the UPA government relented, but
the BJP government which came to
power in 2014 has been reluctant to give
effect to it. The people were left with no
alternative but to request for the inter-
vention of the Supreme Court. Enacting
a separate law for the Central Bureau of
Investigation (CBI) is another case
where even the Supreme Court has been
helpless. The question has been under
discussion for over 50 years but has not
impelled the government to enact a law.
Dozens of such instances can be given to
bring out why the activist role of the
Supreme Court is inevitable in India.
There is no alternative to the Supreme
Court taking a hand in the governance
of the country. India is destined to have
a guided democracy, democracy guided
by the Supreme Court.
But for the same reason, the judici-
ary has to be accountable and transpar-
ent. It cannot be a law unto itself. The
COST OF PENDENCY
(Right) The
postponement of the
hearing in the Babri
Masjid case by the
Supreme Court has led
to a dangerous and
virulent politicisation of
the issue; The
constitutional validity of
Article 35A (JK) is still
awaiting a verdict from
the top court
Books/ The Judiciary and Governance in India
Thetimehascomeforeventhe
SupremeCourttorealisethat
inademocracy,therearelimits
toeachinstitution’spowers
andauthority.
UNI

and refuses to accept any open, trans-
parent system, there will be no other
alternative than to convene a new
Constituent Assembly to deliberate on
the issues. To me, this will be opening a
Pandora’s Box. The whole Constitution
will then come up for review and with
the fractious polity that we have now,
one does not know what all compromis-
es may have to be made to arrive at an
acceptable new Constitution. Even the
basic structure doctrine will come for
reconsideration. A far as I can see, even
the precept of secularism will be exam-
ined anew. The consequences may be
horrendous and even unthinkable.
The time has come for even the
Supreme Court, which is the world’s
most powerful judicial institution, to
realise that in a democracy, there are
limits to each institution’s powers and
authority. There is no getting away from
checks and balances. Let us hope the
Supreme Court will see the reason and
step back from the precipice.
—The writer is former Home
Secretary and Secretary, Justice,
Government of India
selection of judges has to be above
board. The process must be transparent
and such that it evokes confidence about
the fairness, integrity and judiciousness
of the system.
L
ooked at from this point of view,
the resistance of the Supreme
Court to the setting up of a Na-
tional Judicial Appointments Commi-
ssion is totally unjustified. This law was
passed unanimously by Parliament and
still was declared unconstitutional by
the Court. It is difficult to countenance
the situation in which the selection of
judges will not be open and transparent
or that the collegium of judges will not
be answerable to anyone. Justice V.R.
Krishna Iyer, former judge of the Sup-
reme Court, had minced no words when
he called this an incestuous relationship.
As for the Memorandum of Procedure
concerning matters pertaining to the
appointments, transfers, etc. of the
judges of the higher judiciary too, there
has not been agreement yet between the
government of India and the Supreme
Court. Here also, the Supreme Court is
stone-walling the issue and is not pre-
pared for any give and take with the
government. Justice Kurian Joseph, who
was a member of the collegium till his
retirement, has in his interview to The
Indian Express, said, “As far as the
Memorandum of Procedure is con-
cerned, the Supreme Court is of the view
that it is final because it has approved
it.” (IE, 1 December 2018, p. 10).
This stance of the Supreme Court
would have been understandable if
India did not have a written Consti-
tution. But the Indian Constitution is an
elaborate, bulky, well conceived and well
drafted document. The Supreme Court
has the authority to interpret it but it is
questionable whether it has the powers
to rewrite the Constitution as it has
done by its decisions on the basic struc-
ture, appointments of judges and so on.
As for the basic structure doctrine, I
have argued in this book that it was
invoked by the Supreme Court only due
to the Constitution demolition brigade
which was active under the then prime
minister Indira Gandhi and its origin
was in the “argument of fear”. However,
due to the political situation in the
country, over a period of time, the logic
of basic structure has been accepted by
all political parties. But matters pertain-
ing to appointments of judges are not in
the same category.
If the Supreme Court continues to
take a unilateral position on the subject
The Judiciary
and Governance
in India
Author:
Madhav Godbole
Enactingaseparatelawfor
theCentralBureauof
Investigationisanothercase
whereeventheSupremeCourt
hasbeenhelpless.
Anil Shakya

Special/ Former CJI Dipak Misra’s Judgments/ Arbitration
HOUGH the “lis” (present
suit) in this case is limited,
the significance it carries is
global. At times, in arbitra-
tion cases, the issue of
jurisdiction of the court is
disputed by the parties—sometimes to
delay the final decision during the
pendency of the case or where the award
of the arbitrator is questioned on differ-
ent grounds. Section 34 of the Arbitra-
tion and Conciliation Act, 1996, deals
with the seat of arbitration and venue
thereof—of course, subject to the materi-
al terms and conditions of the arbitration
agreement.
While interpreting the agreement and
the relevant laws, conciliation between
the two plays an important role. The
same agreement and the same laws can
be interpreted by two different courts in
two different ways. Here is an example of
one such conflict which arose in a case
decided by former CJI Dipak Misra.
In the case, the shareholders had ent-
ered into an agreement which provided
that any dispute arising between the par-
ties would be decided by arbitration. The
agreement further stated: “For the said
purpose, each party shall nominate one
FewwoulddisagreethatformerChiefJusticeofIndiaDipakMisraleft
hisstamponthejudiciary.Thiscanbeviewedthroughtheprismofsome
ofhismajorjudgmentsthatshowthebreadthoflegaldimensionsa
chiefjusticemusttackle.IndiaLegalrunsaseriesonthesejudgments
T
CASEDETAILS
Title: Roger Shashoua Ors vs Mukesh Sharma Ors
Bench: Justices Dipak Misra and R Banumathi
Case No: SLP (Civil) no. 22616-22618 of 2016
Date of judgment: July 4, 2017
The Seat of Arbitration
By Justice Bhanwar Singh
Anthony Lawrence

India Legal 31 December 2018

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