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Judge in the DockAs the March 10 deadline for Justice Karnan’s response to contempt notice nears, the larger issue of disciplining judges assumes a national dimension

Vyapam ruling: Who were the real culprits?

Tamil Nadu: Governor’s dubious dabbling

| INDIA LEGAL | February 27, 2017 3

T is ironical that in today’s world, whichhas been shaped by waves upon waves ofhuman migrations over the millennia,“immigration” and “migrants” have becomedirty words in the minds of millions of peo-

ple across the globe. Thanks to the refugee crisesstemming from conflicts in the Arab world andparts of Africa, outsiders pouring into differentcountries are considered a dangerous, pollutingsub-human species unworthy of The Rights ofMan which civilised democracies have held to beuniversal and valid at all times.

In characterising immigrants as a scourge,Trumpism in America and the alt-right in Euro-pe have made the world forget that the act ofmigrating across borders as well as the interestsof migrants—whether documented aliens or not—is actually governed by domestic statutes andinternational conventions under the rule of law.

This is only a natural corollary to the marchof human civilisation which has been shaped culturally, linguistically, socially and ethnically bymigrants who made their way to distant landsdue to climate changes, pestilence, war, conquest,epidemics, persecution, forced deportations, eth-nic cleansing, economic hardship, political parti-tions, and the compulsions of technology.

In ruling against President Trump’s immigra-tion ban, the US system of justice simply reasser-ted the principle that in a democracy guided bythe rule of law, the Rights of Man cannot be

arbitrarily abolished by executive fiat. Dueprocess, in this case drawing its strength

from international agreements as well asstate laws and individual liberties, can-

not be sacrificed at the altar of some con-jured up emergency.Above all, the laws and conventions on refu-

gees and immigrants are also based on humani-tarian principles founded on historical experi-ence. For example, had the Jews not kept perpet-ually migrating starting with their expulsion bythe Babylonians and Assyrians, and then theRomans and czars and Nazis, they would proba-

bly be extinct today. So would the Gypsies. Actually, immigration is the true face of

globalisation. Hence, world covenants such asUNESCO’s International Convention on theProtection of the Rights of All Migrant Workersand Members of Their Families which came intoforce in July 2003. Its primary objective is toprotect migrant workers and their families, aparticularly vulnerable population, from exploi-tation and the violation of their human rights.

The Convention does not propose new humanrights for migrant workers. Part III of the Con-vention “is a reiteration of the basic rights whichare enshrined in the Universal Declaration ofHuman Rights and elaborated in the interna-tional human rights treaties adopted by mostnations”.

So why are those rights subject to anotherInternational Legal Instrument?

“The Convention seeks to draw theattention of the international commu-nity to the dehumanization of migrant

workers and members of their families, many ofwhom being deprived of their basic humanrights. Indeed, legislation implementing otherbasic treaties in some States utilizes terminologycovering citizens and/or residents, de juraexcluding many migrants, especially those inirregular situations.”

Excerpts:�Basic freedomsApplying these fundamental rights to migrantworkers and members of their families, theConvention provides for their right to leave andenter the State of origin (Art. I). The inhumaneliving and working conditions and physical (andsexual) abuse that many migrant workers mustendure are covered by the reaffirmation of their“right to life” (Art. 9) and prohibition againstcruel, inhuman or degrading treatment of pun-ishment (Art. 10) as well as slavery or servitudeand forced or compulsory labour (Art. 11).

IIMMIGRANTS HAVE RIGHTS

Inderjit Badhwar

Letter From The Editor

4 February 27, 2017

Letter From The Editor

Migrant workers are also entitled to basic free-doms like the freedom of thought, conscienceand religion (Art. 12), and the right to hold andexpress opinions (Art. 13). Their property shouldnot be confiscated arbitrarily (Art. 15).

�Due process The Convention then goes on to explain in detailthe need to ensure due process for migrant work-ers and members of their families (Art. 16 - 20).Investigations, arrests and detentions are to becarried out in accordance with established proce-dures. Their right to equality with nationals ofthe State before the courts and tribunals must berespected. They must be provided with necessarylegal assistance, interpreters and information ina language understood by them. When imposinga sentence, humanitarian considerations regard-ing the person's migrant status should be takeninto account. The arbitrary expulsion of migrantworkers is prohibited (Art. 22).

Most importantly, migrant workers are to betreated “as equal to the nationals of the hostcountry in respect of remuneration and condi-

tions of work [overtime, hours of work, weeklyrest, holidays with pay, safety, health, termina-tion of work contract, minimum age, restrictionson home work, etc. (Art. 25)]. Equality withnationals extends also to social security benefits(Art. 27) and emergency medical care (Art. 28).

While enumerating this bundle of rights, theConvention recognises that “the human problemsinvolved in migration are even more serious inthe case of irregular migration” and the need toencourage appropriate action “to prevent andeliminate clandestine movements and traffickingin migrant workers, while at the same timeassuring the protection of their fundamentalrights” (Preamble).

As measures for preventing and eliminatingillegal labour migration, the Convention propos-es that the States concerned should collaboratein taking appropriate actions against the dissem-ination of misleading information relating toemigration and immigration, to detect and eradi-cate illegal or clandestine movements of migrantworkers and impose sanctions on those who areresponsible for organising and operating suchmovements as well as employers of illegalmigrant workers (Art. 68). However, the funda-mental rights of undocumented migrant workersare protected by the Convention (Art. 8 - 35).

In this context it is worth studying India’sLaw Commission’s 175th report (2000). It was inresponse to former Home Minister LK Advani’s

The march of human civilisation has been shaped culturally, linguistically, socially and ethnically by

migrants who made their way to distant lands due to climate changes, pestilence, war, conquest....

UNCERTAINFUTURE

Afghan refugeesarrive at the Greek

island of Kos on an overcrowded dinghy

Photos: UNI


concerns of millions of immigrants streaminginto India across its eastern borders. It was, andstill remains, a far more serious situation—a har-binger of communal violence, overcrowding,criminal activities and local job losses—than theentry of immigrants from Syria and Somalia intothe US or Europe.

The Law Commission’s lengthy recommen-dations were calibrated and groundedsolidly in international commitments as

well as India’s own Constitutional principles. It isa lengthy report, a far cry from Trump’s ban-‘em-‘n-lock-‘em-up-n’throw-‘em-out approach.

The Commission chose the option of recom-mending incorporation of new provisions in theexisting Foreigners Act as to make it effectiveenough to meet the main problem of illegalimmigration, without interfering with the exist-ing legal frame-work.

“The Commission is of the view that the prob-lem of illegal migration from neighboring coun-tries has to be tackled seriously by providing amachinery for effective and speedy detection ofillegal entrants. The function of determiningwhether a person is an illegal entrant or not isproposed to be entrusted to the ImmigrationOfficers whose orders shall be appealable, to beheard and decided by an Immigration Tribunal,manned by a person who has been a DistrictJudge or an Additional District Judge.

“The matters shall be decided by themaccording to the principles of natural justice.

Besides, facilitation centers are also proposed tobe provided for detaining the foreigners pendingthe determination of their status, and pendingtheir deportation. So far as the offences underthe Act are concerned, they are proposed to betried by the Immigration Court which would be acourt of District & Sessions Judge to be specifiedby the appropriate government in each district.”

The problem of legal and illegal immigrationinto India, especially West Bengal, and Assam,continues unabated. It is a politically volatileissue. But in tackling it, given the human dimen-sions of the problem, the government has chosenthe wiser course of toughness, tempered by legaldue process.

[email protected]

The problem of legal andillegal immigration intoIndia, especially WestBengal, and Assam, continues unabated. Intackling it, given the humandimensions of the problem,the government has chosenthe wiser course of toughness, tempered bylegal due process.

HUMAN MARCH(Top) Rohingyamigrant women inIndonesia

(Above) Activists ofthe All AssamStudents’ Unionstage a demonstrationagainst illegalBangladeshimigrants inGuwahati

Contents

Karnan’s Latest CaperThe seven-judge SC bench hearing against the Calcutta High Court justice will bea protracted one, punctuated by several ethical issues

16LEAD

VOLUME. X ISSUE. 15

FEBRUARY 27, 2017

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6 February 27, 2017

Point of No Return?Already embroiled in controversies, the judge’s open defiance of the SupremeCourt summons will go against him

20

Governor ReluctantSasikala nominee E Palanisamy finally gets the call to step inas Tamil Nadu CM

23FOCUS

R E G U L A R S

Follow us on Facebook.com/indialegalmediaand Twitter.com/indialegalmedia

Ringside............................8Dilli Durbar ........................9Courts .............................10Briefs...............................14Media Watch ..................49Satire ..............................50

Cover Illustration & Design: ANTHONY LAWRENCE

Stumbling BlocksThe parliamentary standing committee points out loopholes inthe memorandum pertaining to judges’ appointments

30

GST’s Fatal FlawThe decision to cross-empower states to collect IGST may runinto trouble as the power to collect it rests only with the centre

ECONOMY

32

Blame It on the ChairWhile shifting the responsibility of declaring a Bill a Money Bill to outwitthe opposition, the government has put the Speaker in a tight spot

MY SPACE

38

Congress’Herald ShameThe newspaper could embarrass theparty over allocation of prime land inPanchkula in record time by theHooda government

CONTROVERSY

47

STATES

No Closure in VyapamThe Supreme Court has cancelled the degrees of 634 doctors connected to the scam but the real culprits remain unidentified

40

Damages Ahoy!After 38 years, the Supreme Court directed a compensation of `60 lakheach for the Narmada oustees. Both the Gujarat and Madhya Pradesh governments have welcomed it

44


Is It a House for Aam Aadmi?The Union budget’s new affordable housing initiative is overrated and does nothave the legal teeth to stop builders from exploiting it

34SPOTLIGHT

Ancestral BurdenThousands of Muslims could lose property inherited from thosewho moved to Pakistan under the enemy property ordinance

LEGAL EYE

28

Lessons from Tamil NaduThe DA case verdict is an indictment of the nexus betweenpoliticians, civil servants, cops as well as the judicial system

25

8 February 27, 2017

“

RINGSIDE

Don’t demonise Trump,analyse Trump…. Indiamay not be part of theproblem but India will be affected by Trump’spolicies.

—Foreign secretary S Jaishankar, at theGateway of IndiaGeonomic Dialogue inMumbai

In a bid to remain in power, Akhilesh hasjoined hands with the party that tried to killhis father. Akhilesh doesn't realise Congress's

cunning; Mulayam knew it well. I want totell Akhilesh that he should have rememberedthis before sitting in the lap of the Congress.

—Prime Minister Narendra Modi, at a rally in Kannauj, Uttar Pradesh

No force can separate me from my party…. No matter where I am, I will always think ofthe party…. They canonly imprison me butnot my love for you andthe party.

—AIADMK general secretary VK Sasikala,addressing party MLAsat the Golden Bay Resortoutside Chennai beforeher arrest, on Jaya TVHindu population is

reducing in Indiabecause Hindus neverconvert people.Minorities in India areflourishing unlike somecountries around.

—Minister of State forHome Kiren Rijiju,reacting to Congressallegations that the BJPis converting Arunachalas Hindu State, onTwitter

We all have heard storiesabout Don Bradman, therecords that he has andhow well he used to bat.But when people say that‘Had the Don played inthis era, he would havebeen very much likeVirat,’ one can very wellimagine how great Donwould have been.

—Former Indian skipperKapil Dev, speaking toIndia Today

In my biopic, if ever it’smade, you will play thatstereotypical Bollywoodbiggie, who is... verysnooty... and completelyintolerant to outsidersand flag-bearer of nepo-tism...the movie mafia....

—Bollywood actressKangana Ranaut, speaking to Karan Jauharon Koffee with Karan

We live in a glasshouse, which is goodfor transparency. Butdon’t stare at us fortoo long. It distractsand defocuses. Weneed to get on withour job.

—Infosys Chairman R Seshasayee, on thecontroversy regardinga severance payment of`17.4 crore to ex-CEORajiv Bansal, in TheTimes of India

Delhi DurbarAn inside track on

happenings in Lutyen’s Delhi

The buzz in the finance ministry is allabout P Chidambaram’s new bookFearless in the Opposition: Power andAccountability. It is not the contents—acollection of columns that haveappeared in The Indian Express—thathave raised eyebrows but the introduc-tion penned by former RBI governorRaghuram Rajan. In it he has lavishedpraise for the meticulous research andunderstanding that Chidambarambrings to his writings. Sample this:“Having seen Mr Chidambaram atwork when I was the Chief EconomicAdviser (CEA) at the Finance Ministry, Ican attest to the care with which he

made decisions. After leaving office, Iunderstand Mr Chidambaram followsthe same procedure while writing…The nation benefitted from his carefuldecision making while he was in officeand benefits today from these pieceswhile he is in the Opposition.” Manysee the former RBI governor’s introduc-tion as his approval of Chidambaram’sanalytical essays, which includes asection devoted to demonetisation.The former finance minister has been ascathing critic of notebandi and manyof the facts and figures he has quotedseems to be based on inside informa-tion. Many believe that Rajan’s glowingintroduction is a veritable confirmationof this.


Cabinet Ministers are feeling liketruant schoolboys these days witha steady stream of instructions andmessages from the PMO regardingperformance and related matters.His latest is the one asking minis-ters to provide details of all toursthey have undertaken in the lastthree months to promote initiativesof government, particularly demon-etisation. The exercise is aimed atknowing if they were balancing their

own ministerial duties with the larg-er initiatives by the governmentand, in particular, if they were com-bining any personal visits to theirhome towns. A few days earlier,they were all asked to refrain fromattending weddings and similarsocial events, seen by the PrimeMinister as a waste of time. Anothernote asked them to keep their pre-sentations short during cabinetmeetings. We have heard of heli-copter parenting but Helicopter PMis a new one.

— Illustrations: UdayShankar

LAVISH PRAISE

MODI’S EAGLE EYE

Believe it or not but nolesser mortal than AmarSingh (the former MrControversy and theoriginal Page 3 politi-

cian) is finding it dif-ficult to stay in thenews. After his

ouster from theSamajwadi Party, fol-

lowing his spat with

Akhilesh Yadav, Singhfinds himself out in thecold. His cronies aredoing the rounds ofLutyen’s Delhi with the“hot news” that theirboss will be releasingtapes which they prom-ise will be “a biggerbombshell than Radiaand bigger than anyearthquake that RahulGandhi or NarendraModi have felt.” A few

TV journalists were ini-tially interested but theSingh camp has so faroffered nothing. Almosta decade ago somephone tapes, allegedlyleaked by Singh’s men,were anonymously sentto select journalists butyielded no stories. “Waitand watch. This timethere will be a TNTexplosion,” one is promised.

O IS ZERONothing unitesopposition and ruling party leadersin the national capi-tal as a good joke.This one comesfrom Tamil Naduwhere supportersof Sasikala werespreading this line:What does the ‘O’in O Paneerselvamstand for? Zero (0)if you count theseven MLAs whosupport him! Thetables, of course,have turned, andSasikala loyalistEdappadi KPalanisamy hastaken oath as CM.

AMAR’S ARMOURY

10 February 27, 2017

The apex court halted all futurehearings in the Madras High

court against Justice KSPRadhakrishnan, a former judgeof the Supreme Court. TheMadurai bench of the High Courthad issued notice to him inJanuary, on a PIL filed by agri-culturist S Chakrapani. The peti-tioner alleged that it was ethical-ly wrong on the part of JusticeRadhakrishnan to accept anaward from PETA. Incidentally,Justice Radhakrishnan was partof the apex court bench whichhad delivered the Jallikattu banruling in May 2014. The petition-ers pleading for the ban includedPETA, among others.

Chakrapani had pleaded inHigh Court that JusticeRadhakrishnan had violated theconstitution by accepting theaward in 2015 and wanted theCourt to order the former judgeto give back the award to PETA.

Radhakrishnan approachedthe top court citing JudgesProtection Act, 1985 whichgrants legal immunity to a judgeagainst any action taken orwords spoken by him in thecapacity of a judge.

The apex court also issuednotice to Chakrapani.

Proceedingsstayed againstformer SC judge

The Supreme Court clarified thatpeople may choose not to stand

up in cinema halls if a film, documen-tary or a newsreel showed the nation-al anthem. The apex court had lastNovember made it mandatory for all

cinema halls to screen the anthembefore a film commenced and people,except the differently-abled, wereasked to stand up and show respect.

The issue came up before thecourt after immense confusion fol-lowed in the light of its earlier orderand there were numerous incidents ofpeople being insulted and attackedwhen they did not stand up while thenational anthem was shown in a film.Lately, many people were assaultedwhen they did not stand when thenational anthem was shown in theAamir-Khan starrer Dangal.

The Court also ruled that peoplecould avoid singing along with thenational anthem played in cinemahalls. It also stated that cinema halls,however, must continue to play theanthem as per its interim orders. Thenext hearing is on April 18.

National anthemduring screenings

The AAP government’s orderaccording “primary” impor-

tance to the “neighbourhood”factor for admissions to privateschools in Delhi was struckdown by the Delhi High Court.

The Court observed thatthe order issued by theDirectorate of Education (DoE)for the academic year 2017-18was unfair to parents and chil-dren staying far from a schoolof their choice. In its interimorder, the top court ruled that the order was “restrictive and unreasonable”.

Around 300 schools that hadcome up on DDA-alloted land wereaffected by the order. This aspect wascriticised by the Court, which wantedto know why around 1,400 schoolshad not been covered by the order.

The Court also observed that the

order left a huge room for manipula-tion and abuse by parents. This vitalaspect was not considered by theDoE order, it pointed out.

The Court cited Section 12 (1)(c)of the Right to Education Act tonegate the government’s contentionthat the neighbourhood criterion wasas per the Right to Education Act.

Delhi HC raps AAP govton school admissions

Courts


Those cured of mental illness at hospitalsin India must be rendered all help to set-

tle down in normal life again, the apexcourt observed. It also pointed out that thecentre should come up with a comprehen-sive policy, applicable in all parts of India,in this regard, if it did not have one.

While issuing a notice to the Unionhealth ministry, the Court reminded thecentre that welfare of the mentally-chal-lenged was a matter that fell in theConcurrent List. Therefore, the Centre hadall the power to evolve norms, it observed.

While hearing a petition that prayed thatpeople cured of mental illness be rehabili-tated, the Court directed the centre and thestates to help in this task.

Need a policy for thementally ill

The issue of cattle smuggling came upbefore the apex court recently through

a PIL filed by Akhil Bharat Krishi GosevaSangh. The organisation brought to thecourt's notice unchecked smuggling ofcattle through the porous Indo-Bangladeshborder. It pointed out that despite the cen-tre apprising the states about the menace,measures taken were insufficient consider-ing the seriousness of the issue.

The centre apprised the court that draftrecommendations had already been sub-mitted by the committee constituted for thepurpose. However, West Bengal wantedsome more time to study the recommen-dations, it said. Other states were alsoinvolved and more discussions wererequired, it pleaded.

The apex court will hear the matter onApril 3.

The menace of cattlesmuggling

The Chief Justice of India (CJI) JSKhehar wasted no opportunity to

award huge fines to two petitioners inseparate cases after finding them friv-olous. The men earning the wrath ofthe CJI-headed bench were an RJDMLA Ravindra Singh and a retired pro-fessor from Maharashtra. WhileSingh’s petition was a defamation suit

questioning the authenticity ofnews reports published in a ver-nacular magazine in 1994, theteacher’s plea raised objection toa Gujarat government orderlinked to quota. Singh was fined`10 lakh and the teacher wasasked to cough up `1 lakh.

The CJI was focussed on theapex court’s new motto to

“weed out frivolous litigation”. He wasoutraged by these petitions eatingaway precious time of the top courtwhich was saddled with a backlog ofmore than 60,000 cases.

In Singh’s case, the Court did notapprove his decision to file a plea inthe Patna High Court in 2015 and thenrush to the SC when the High Courtdismissal order was amply clear. Arequest by the MLA to reduce the fineamount was dismissed. The professorwas allowed to withdraw the plea butwas asked to pay the fine.

CJI Khehar dismisses two frivolous litigations

The apex court ruled that criminal-turned-politician and Rashtriya

Janata Dal leader MohammadShahabuddin be moved within a weekto Tihar Central Jail in Delhi from a jailin Siwan district of Bihar. The benchalso ordered that further trial againsthim in Bihar courts be conductedthrough video conferencing from Tiharjail and no special treatment be metedto him in Delhi. Observing that freeand fair trial must be facilitated andensured, the bench also observed thatShahabuddin was being tried in morethan 40 cases. One of the casesincludes the murder of a journalist,Rajdev Ranjan, working withHindustan, in May 2016 in Siwan.

The Court was reacting to twopetitions pleading that fair trial was notpossible if Shahabuddin stayed in

Bihar as witnesses would fear todepose against him. One petition wasfiled by the widow of Rajdev Ranjanwhile the other was by Chandrakesh-war Prasad, whose sons were killedallegedly at the behest of Shahabud-din. The court struck down the argu-ment that his fundamental rights wereviolated by the verdict.

Shahabuddinshifted to Tihar jail


The power tussle between the Delhigovernment and the Lieutenant

Governor (LG) of Delhi on who is theboss of the capital remained unresolved.The Supreme Court after hearing thematter for more than a week referred allrelated pleas to a constitution bench. Thematter had come up before the top courtafter the Delhi government had chal-

lenged the Delhi High Court order ofAugust 2016, which had ruled in favourof the LG. The High Court had ruled thatthe LG was the “administrative head” forall purposes and all decisions of the stategovernment must get his sanction. Butthe AAP government had challenged theverdict in the top court

Incidentally, the centre itself wantedthe matter to be adjudicated by a largerbench as Article 239AA needed to beinterpreted properly.

The top court observed that crucialaspects of law and constitution linked tothe issue needed to be looked into andonly a constitution bench was fit enoughto tackle the matter. It further ruled thatAAP and centre should argue afreshbefore the bench.

When the centre and Delhi govern-ment contended that governance of Delhiwill be hit if the dispute lingered, theCourt ruled that both could approach thechief justice of India for an early hearing.

Constitution bench totake up AAP-LG issue

The centre was asked by theSupreme Court to adopt a

favourable approach towards com-munity radio service operators andprivate FM stations as far as broad-casting news and current affairs pro-grammes was concerned. The benchdealing with the matter, however,observed that allowing them to inde-pendently air news programmes maynot be possible, but contents ofnewspapers and TV channels couldbe picked up.

The centre cited the possiblebreach of national security and publicorder as the reason for denying thepermission. It argued that these radiostations run by private operatorscould be misused. Moreover, therewas no system in place to monitortheir content, it pleaded. It apprisedthe court that norms had beenevolved for community radios to airnews taken directly from AIR.

The Court was dealing with apetition from NGO Common Causewhich pleaded that the centre’s deci-sion to deny community radios andprivate FM stations the permissionwas unconstitutional and violated theright to freedom of speech andexpression. Refusing to accept thecentre’s argument that the contentcould not be monitored, the counselfor the NGO wondered how licenceswere given to private radio stations.

Allow private FMstations to air news

Courts

The apex court was asked totake a call on whether the

Lok Sabha Speaker was correctin authorising the changedAadhaar law as a Money Bill inthe Lok Sabha. The plea wasfiled by Congress leader JairamRamesh. The Court, however,was “tentatively not convinced”and asked Ramesh’s counsel totake into account points raisedby the centre and gave four weeks’ timeto frame the case properly. It felt the mat-ter was “important and serious”.

The centre reiterated that all proce-dural norms were adhered to as per theconstitution. It further argued that the Lok Sabha Speaker’s decision wasabove judicial scrutiny but the Courtbegged to disagree.

Ramesh’s counsel contended that thebill was classified as a Money Bill so that

it could not come under the scanner ofthe Rajya Sabha. The upper house hasno power over a Money Bill.

The Aadhaar (Targeted Delivery ofFinancial & Other Subsidies, Benefits &Services) Bill, 2016 was passed in theLok Sabha in March 2016. However, theRajya Sabha later made several changesand sent it back to the Lok Sabha. But itbypassed the changes and passed it.See analysis on page 46 of this issue.

Controversy overAadhaar Bill

The five new appointees to theSupreme Court Bench were

administered their oaths at 10.30 amon February 17 by the Chief Justiceof India JS Khehar. The newappointees are Justices DeepakGupta, SA Nazeer, MohanShantanagoudar, SK Kaul and NavinSinha. They are promoted chief jus-

tices from Chhattisgarh, Karnataka,Kerala, Madras and Rajasthan HighCourts respectively.

Proceedings at the court startedat 11.15 am, instead of the sched-uled 10 .30 am and the five judgesimmediately took up positions infive courts. They were seen in action

in courts 1, 2, 3, 4 and 5, and were

appended to cases that were alreadyin process.

The addition of these five judgesboosts the bench strength of theapex court to 28, which is still threeshort of the sanctioned strength of31. Two more recommendations areexpected.

The apex court, as also othercourt across the country, is burdenedwith huge pendency and only withthe coming in of Justice Khehar asCJI has the pathway opened up againfor the induction of new judges.Recently, nine judges were appointedfull-time chief justices of differenthigh courts of the country.

Some of those courts were func-tioning under acting chief justices fora long time.

Those nine appointments sig-nalled a clearance of the logjam thatexisted between the judiciary and theexecutive, which had stalled appoint-ment of fresh judges, as well as reg-ular promotions.

— Compiled by Prabir Biswas; Illustrations: UdayShankar

The Supreme Court has asked GoogleIndia, Yahoo! India and Microsoft to

set up an “in-house expert body”each,which will delete all words which couldpoint to sex determination at the level ofpre-natal diagnostics leading to femalefoeticide, impacting the sex ratio. Itdirected that the search engines“become responsive to the India law.”

Justices Dipak Mishra and R Bhanumathi issued the order in thecourse of the hearings in the petitionfiled by Sabu Mathew George, a med-ical practitioner in the field of publichealth and nutrition in 2008.

While posting the case to April 17for fur ther hearing, the judges said thatthe search engines “shall appoint their

“in-house expert body” which shall takesteps to see that if any words or anykey words that can be shown in theinternet which has the potentiality to gocounter to Section 22 of the 1994 Actshould be deleted for thwith.”

The reference was to Pre-NatalDiagnostic Techniques (Prohibition ofSex Selection) Act, 1994.

The court took note of the submis-sion of the counsel for petitioner,

Sanjay Parikh, that despite the court’searlier order about auto-blocking “theliterature and write-ups that would helppeople to go for a male child which ulti-mately leads to reduction of sex ratio, isstill being shown on certain web sites.”

The counsel for the search enginessaid that they will “verify” this.

The order mentioned, “…it is can-vassed by Mr (KV) Viswanathan (oneof the counsel for the search engines)

with immense vehemence that it doesnot come within the proposed list ofwords that find mention in the orderdated 19th September, 2016, and,therefore, it cannot be construed as a violation.”

Be that as it may, the court said thatthe petitioner and others may approachthe nodal agency set up by the Govern-ment which should look into the issueand “intimate” the search engines.

It said: “That apart, the “in-houseexpert body” that is directed to be con-stituted, shall on its own understandingdelete anything that violates the letterand spirit of language of Section 22 of1994 Act and, in case there is anydoubt, they can enter into a communi-cation with the Nodal Agency appoin-ted by the Union of India and, there-after, they will be guided by the sugges-tion of the Nodal Agency of the Unionof India.”

5 new SCjudges

take oathJustice Deepak Gupta

Justice MohanShantanagoudar

Justice Navin Sinha

Justice SA Nazeer

Justice SK Kaul

SC asks search enginesto set up “in-houseexpert body”


Briefs

In Tamil Nadu, the legalfraternity has closed its

ranks to demand elevation ofJustice N PaulVasanthakumar (left) to theapex court. Ardent admirersof the Chief Justice ofJammu and Kashmir HighCourt point out how he haddisposed of more than onelakh cases, of which over2,500 were reported inreputed law journals. Apartfrom seniority, he is creditedwith integrity and commandover all genres of law. Toplawyers have started finalis-ing representations, signa-

ture campaigns and meet-ings since the SupremeCourt collegium has not yetrecommended the seniormost Tamil Nadu judge forappointment as an SC judge,even though he is just weeksaway from his superannua-tion (slated for March 15).“The chartered Madras High Court has only onejudge in Justice RBanumathi. The court traditionally has had at leasttwo judges representingTamil Nadu,” Madras HighCourt Advocates Association(MHAA) said.

Relatives of former chief justice ofIndia KG Balakrishnan may

land in trouble as an income taxassessment report has revealed that his daughters and sons-in-lawhad not disclosed crores of rupees discovered during the assess-ment of their assets. The report waspresented to the SC while the apexcourt was hearing a PIL seeking anSIT probe against Balakrishnan’sfamily members alleging that theyhad purchased properties worth

crores of rupees during his tenure atthe SC. The report carries the assess-ment of incomes of Balakrishnan’srelatives from financial years 2005-06 to 2012-13. The report has nothingagainst the formerCJI butmentionsthat his fam-ily membershad under-valued theirassets.

An NRI couple from London allegedly got their

adopted son, Gopal Sejani, murdered to claim life insurance worth `1.3 crore. The GujaratPolice said the coupleKanwaljitsinh Raizada andAarti Loknath Dhar hadplanned the murder twoyears ago, along with oneNitish Mund. The couple

had notarized an adoption deed in July 2015 and purchased the insurance in August. “But Sejan’spassport could not be made since theadoption procedures had not been

followed,” JunagadhSuperintendent of PoliceNilesh Jajadia told The India Express. Sejanilived with his sister andbrother-in- law, HarsukhPatel, in Maliya after hisfather died and motherremarried.

Trouble for ex-CJI kin

KVIC slaps legalnotice to Fabindia

Multi-city apparel and home fur-nishing store Fabindia has

been served a legal notice by theKhadi and Village IndustriesCommission (KVIC) for selling itsreadymade garments as khadi prod-ucts without approval. The noticesent to Fabindia says that the com-pany had been warned and contin-ued to break rules despite its assur-ances not to do so. It also said thatthe price tags on the garments soldby Fabindia have “Khadi” printed onthem, which is an illegal act andamounts to indulging in unfair tradepractice. Fabindia said that it hasreceived the notice and has calledfor a meeting with KVIC officials tounderstand and resolve the issue.

Centre tells CBI toprosecute Kumar

The centre has sanctioned theCentral Bureau of Investigation to

prosecute Rajendra Kumar, formerprincipal secretary to Delhi CMArvind Kejriwal in a corruption case.It has rejected Kumar’s applicationfor voluntary retirement. The inves-tigative agency had earlier filed a chargesheet against Kumar in a case relating to criminalconspiracy to cause loss of `12crore to the Delhi government inaward of contracts between 2007and 2015. Kumar has pleaded inno-cent and claimed that he was pres-surised to implicate Kejriwal but theCBI insisted that it was acting on the basis of strong evidence.

Murdered for insurance

Lawyers root for Justice Vasanthakumar


Michael Flynn (below), the USnational security adviser

resigned after a slew of intelligenceleaks over the past month claimed

that he had secretly discussedsanctions with Sergei Kisilyak, theRussian ambassador toWashington and then tried todeny the conversations. Even

though it is being said that Flynn“crossed no lines,” White HouseCounsellor Kellyanne Conway saidthat “it was misleading the vice-

president that made the situationunsustainable.” In his resignationletter, Flynn wrote “the fast paceof events” during the presidentialtransition meant that he had“inadvertently briefed the vice-president elect and others withincomplete information regardingmy phone calls with the Russianambassador.”

In September 2015, after Germancarmaker Volkswagen admitted

behind closed doors to the USEnvironmental Protection Agencythat it had installed cheating soft-ware in around 11 million of itsdiesel vehicles worldwide, the infor-mation went public. This week, afederal judge in San Francisco hasapproved a preliminary $1.2 billion

(1.13 billion Euros) buy-back orrepair plan. The landmark compen-sation deal will see Volkswagencompensate the owners of around78,000 diesel vehiclescaught up in the com-pany’s cheatingscandal. The dealalso covers Audiand Porsche,other Volkswagenbrands.

Kim Jong-nam (below), theestranged half-brother of North

Korean leader Kim Jong-un, wasassassinated in Kuala Lumpur air-

port while on his way back to Macaufrom Malaysia. South Korean intel-ligence services said they believed hewas attacked by two North Koreanfemale agents with “poisoned nee-dles.” Malaysian Prime MinisterNajib Razak has ordered a thoroughinvestigation into the apparentassassination. At one point KimJong-nam was considered heir-apparent to his father, Kim Jong Il.However, his prospects were dashedafter an incident in which he wasarrested attempting to visitDisneyland in Tokyo on a false passport.

—Compiled by Karan Kaushik and Shailaja Paramathma

Beginning 2017-18 academic session, all Central Board of

Secondary Education (CBSE) affiliatedschools will have to follow the National Council of EducationalResearch and Training (NCERT) curriculum. The decision was taken inthe presence of Human ResourcesDevelopment Minister PrakashJavadekar. The move is expected to standardise the curriculum across schools in the country. The decision has come following com-plaints by parents about non-availabil-ity of NCERT books and of schoolsforcing them to buy books from private publishers at escalated prices.

All CBSE shools to followNCERT curriculum

Board members of tech giant Info-sys are raising questions about

the salaries paid to the company’sCEO Vishal Sikka and other execu-tives, according to reports. The letterthat questions why Sikka’s salary hasbeen increased, has been signed bythree of the company’s founders,Narayana Murthy, Nandan Nilekaniand Kris Gopalakrishnan. The CEOreportedly had a $7.3 million basesalary, benefits and bonus last year,up from just $680,000 base salary in 2015.

Infosys CEO’s salary under question

North Korean leaderassassinated

Payback time

Leaks costFlynn his post


heard by a seven-judge bench of CJI JS Khehar and Justices Dipak Misra,Jasti Chelameswar, Ranjan Gogoi,Madan B Lokur, PC Ghose and KurianJoseph. He was directed to hand overall files relating to his judicial andadministrative functions to the court’sRegistrar General, and the constitution

Lead/ Justice Karnan/ Contempt Notice


EVENTEEN-ODD yearsago, the then Chief Justiceof India (CJI) AS Anandhad warned that the erosion of credibility ofthe judiciary in public

mind was the greatest threat to theindependence of the judiciary whichneeded to guard against any “internallatent danger”.

Since then, many cases involvingcontroversial conduct of judges of different status have been disposed ofwith mere expressions of lament andworry on the state of the judiciary in the country.

Now we have the case of JusticeChinnaswamy Swaminathan Karnan,which presents developments so farunknown to either constitutionalexperts or within the principles of judi-cial order. This shows another of theaberrations in the existing system ofselection of judges.

Justice Karnan is facing contempt ofcourt proceedings, and his case is being

bench’s unambiguous and stern orderhinted at the consequences in store forthe sitting judge of the high court.

Earlier, and realising that he hadhugely exceeded in his actions, JusticeKarnan had tried to pacify the apexcourt judges by pretending that he wasmentally disturbed. This ploy failed.

A Judge too farThe seven-judge SC bench hearing against Justice Karnan will be long and difficult,punctuated by caste issuesBy Rakesh Bhatnagar

S

Justice CS Karnan, a sitting judge ofthe Calcutta High Court, became the

first judge ever in India to be issued acontempt notice by the Supreme Court.

On February 8, a seven-judge bench,comprising senior-most judges of theapex court, issued the notice againstJustice Karnan for writing lettersaddressed to the Chief Justice of India(CJI) and the Prime Minister with dis-

paraging comments about several sit-ting and retired judges of the highcourts and the Supreme Court of India.

The apex court’s seven-judge benchcomprised CJI JS Khehar and JusticesDipak Misra, J Chelameswar, RanjanGogoi, Madan B Lokur, PC Ghose andKurian Joseph.

The decision of the Chief Justice ofconstituting a high-powered seven-judge bench must have been taken aftera lot of thought. As per Article 129 and215 of the constitution of India, theSupreme Court and every high courtshall be a court of record and shall haveall the powers of such a court, includingthe power to punish for the contempt of

Tricky legal questions The Seven-judge SC bench needs tofind a constitutional a way to dealwith a HC judge


One must realise that the judiciary is already struggling to retain its inde-pendence from the influence of politi-cal executive; hence such behaviourfrom within the system can only weakenthe fabric.

Justice Karnan said he had issued an“erroneous” order due to his “mentalfrustration resulting in the loss of hismental balance.” In a letter to JusticesKhehar and Banumathi, Justice Karnanclaimed he was “disturbed” due to vari-ous incidents where he was “ridiculed”by some judges, and that made himfrustrated. This order was about hisstaying his own transfer to CalcuttaHigh Court on February 15, 2016.

Justice Karnan gave an undertaking,which said: “Hereafter, I will still con-tinue to foster a harmonious attitude toone and all, and will appreciate yourkind reciprocation and oblige.”

Justice Karnan not only failed toshow up in front of the bench onFebruary 13, he dashed off a letter to theRegistrar General of the Supreme Court,raising serious concerns about themotive behind the contempt proceed-ings against him. His letter, written onhis official letterhead of the CalcuttaHigh Court, said: “This said order doesnot conform to logic, therefore is notsuitable for execution. The characteristicof this order clearly shows the uppercaste judges are taking law into their

hands and misusing their judicial powerby operating the same against a SC/STJudge with mala fide intention of get-ting rid of him. Therefore, the suo motucontempt order dated 08.02.2017 is notsustainable under law.”

He also stated that last year he hadattempted to file a case against CJIKhehar under the SC/ST Act andrequested that the contempt caseagainst him be heard after the retire-ment of Justice Khehar. This was a clearaffront. He challenged the compositionof the bench on the ground that it isheaded by CJI Khehar, who allegedlyhad a personal grudge against him.

It is no surprise that Justice Karnaninvoked his caste (he is a Dalit), ignor-ing the fact that he had been appointedas a judge of a high court not on thebasis of his caste. No quota system existsin the selection of judges to high courtsor the Supreme Court. That a parlia-mentary committee on scheduled castesand scheduled tribes has strongly rec-

ommended reservation for SC/ST in this area is another matter.

USING THE CASTE CARDIn the past also, the-then judge of theSupreme Court V Ramaswami hadinvoked his caste (Dalit) when proceed-ings for his removal or impeachmentstarted in Parliament. DMK leaders hadraised a hue and cry, saying the judgehad been victimised because he was aDalit. He couldn’t be impeached as caste politics dominated the mind ofCongress. Of the 401 members presentin the Lok Sabha on the day of the voteon impeachment, 196 voted for hisremoval and 205 members of the rulingCongress and its allies abstained.

The motion, which required no lessthan a two-thirds majority of the totalnumber of members present in bothhouses of the Parliament and an

itself. Article 16 of the Contempt of CourtsAct, 1971, states that a judge shall alsobe liable for the contempt of his owncourt or of any other court.

In Harish Chandra vs Ali Ahmed, 1987, ithas been clarified that since the expres-

sion “judge or judges” used in Article 14of the Contempt of Courts Act, 1971,refers only to the judge, so judges of theSupreme Court and high courts areexcluded in the expression ‘judge’ usedin section 16. Hence this should be inter-preted to include only a judge of the subordinate court, not a judge of a highcourt or the Supreme Court. So it wasnever envisaged that a judge of a higher

court would be guilty of contempt of hisown court.

That is why the constitution of Indiasays that the Supreme Court and highcourt judges can be removed by the Pre-sident of India under Article 124 (4) of theconstitution on the ground of “provedmisbehavior and incapacity”. Article 217(b) of the constitution of India provides forappointment and conditions of the officeof a judge of a high court, where a Judgemay be removed from his office by thepresident in the manner provided in Cla-use ( 4 ) of Article 124 for the removal ofa Judge of the Supreme Court.

Article 124 of the Constitution of Indiatalks about the removal of a judge of the

Supreme Court; this clearly means thatthere are no such provisions that are spe-cifically pinned down in our constitutionfor the removal of a high court sitting jud-ge except as provided under Article 124.

The constitution of India is silent aboutany other manner except under article124 (4) to deal with the judges of highercourts. Section 16(1) of Contempt ofCourt Act also does not express clearlythe scope and ambit of the said act toinclude high court judges as well.

It appears that the Supreme Court ofIndia has to find ways by interpreting theconstitution and Contempt of Court Act,1971, to deal with the present issue.

By Shailendra Singh

The Madras High Court (facingpage) witnessed turmoil when, in

2015, Justice Karnan (right)accused the then Chief Justice

Kaul of harassing him because he was a Dalit.

absolute majority of its total member-ship, thus failed. Ramaswami laterresigned.

There was also the case of KarnatakaHigh Court Judge PD Dinakaran, whowas elevated as Chief Justice of SikkimHigh Court even when the litigationrelating to his amassing disproportion-ate wealth and misuse of the office ofjudge was going on in the SupremeCourt. He had also sought shelter of hiscaste (Dalit) and mustered support fromcertain caste-oriented political partiessuch as the DMK and Bahujan SamajParty. Ahead of the motion for impeach-ment was moved, he resigned.

AT LOGGERHEADSKarnan has been at loggerheads with hisfellow judges since 2011 when heaccused them of discriminating againsthim because he was Dalit. In 2015, heaccused the then Chief Justice of theMadras High Court Justice Kaul ofharassing him because he was a Dalit,and assigning him “insignificant anddummy” cases for dispensation whereasjudges junior to him were given highprofile matters.

Then he accused CJ Kaul of corrup-tion. When the Supreme Court trans-ferred him in the same month ofFebruary he assumed such powerswhich were hitherto unknown to theconstitution and the principles of judi-cial governance.

In a surprise move, he stayed theorder of his own transfer to the CalcuttaHigh Court. But, the Registrar General,Madras High Court lost no time andmoved the Supreme Court against suchan order of stay by judge who had beentransferred to another court. TheSupreme Court rescued the situationfrom turning into complete lawlessnessin the high court. A two-judge bench of

Justices Khehar and R Banumathiscrapped his order and lifted the stay onhis transfer.

Determined to act as he pleases,Justice Karnan still behaved like a judgeof the Madras High Court and directedthe Chennai police commissioner to reg-ister a case against the two judges(Khehar and Banumathi) under theSC/ST (atrocities) Act. He finally agreedto join the Calcutta High Court after aclosed-door meeting with then CJI TSThakur. What had transpired betweenthen CJI Thakur and Justice Karnan isstill not known.

Remaining silent for a year, he onceagain cried foul. He raised the banner ofrevolt by writing letters to Prime Minis-ter Narendra Modi.

“I have given a recent allegation thatthere were 20 corrupt judges in theMadras High Court and the Hon’bleJustice S Kishan Kaul is No. 1 accused....It is observed that the 7 judges (whocomprise the Constitution bench) are allout for a contempt case against me, presumably to clear the path for Jus-tice Mr. SK Kaul’s elevation (to theSupreme Court).”

“The Suo Motu contempt orderagainst me a Dalit judge and restrainingmy judicial and administrative assign-ment is unethical and goes against theSC/ST Atrocities Act. It is certainly anational issue and a wise decision wouldbe to refer the issue to the House ofParliament.”

Meanwhile, the wife of Justice S

Manikumar, a sitting Madras HighCourt judge, has approached the Sup-reme Court accusing Justice Karnan of“continuously harassing” her and herfamily and making baseless allegationsagainst her husband. She has soughtprotection from the Supreme Court. Shealleged that she and her family wereaggrieved by the actions of Justice Kar-nan, including “abusive” telephone calls.

His interaction with other judges inhis parent Madras High Court was alsofound to be so offensive that 21 of themsigned a memorandum making a com-plaint to then Chief Justice of India, TSThakur, seeking the transfer of JusticeKarnan to another high court.

Karnan had plunged Madras HC intoa major crisis in 2015 by threateningcontempt of court proceedings againstCJ Sanjay K Kaul, who has now beenrecommended by the collegium to beappointed as a judge of the SC. Karnanhad accused Kaul of interfering in hisjudicial work and sought a CBI probeinto the alleged forged educational qua-lification of another HC judge.

It’s going to be a long legal battlebefore the constitution bench which willtake up the case of contempt of courtagainst Justice Karnan on March 10.Justice Karnan and judges do know thathe would retire on June 12, 2017 andthere won’t be adequate time to com-plete the hearing as certain groups whoadvocate for the rights of Dalits andbackward classes are gearing up tointervene in the matter.


NOT SO ILLUSTRIOUS PAST(L-R) PD Dinakaran of Karnataka High Court

was appointed CJ of Sikkim High Courtdespite a pending case on misuse of office;

Supreme Court judge V Ramaswami invokedhis Dalit identity when he faced impeachment

Lead/ Justice Karnan/ Contempt Notice

often discrimination becomes a con-venient excuse to brush things under the collective carpet.� Soumitra Sen of Calcutta High Courtwas impeached in 2011. Before JusticeSen’s appointment as a judge, he was apractising lawyer of the court. In 1983,the Steel Authority of India Limited(SAIL) filed a suit against the ShippingCorporation of India, asking for aninventory of fire bricks lying at BokaroSteel Plant (imported and then rejectedby SAIL) and to sell them. Sen wasappointed Receiver by the court andinstead of his five percent fee, Sen wasfound to have defalcated funds thatwere not his. The CJI constituted an in-house committee, which accusedJustice Sen of breach of trust and mis-appropriation of Receiver’s funds for

Lead/ Justice Karnan/ Contempt Notice/ Precedents


USTICE KARNAN is not thefirst judge in India to havebeen disciplined by the inter-nal mechanism of the Indianjudicial system. Even in hiscase, it took a long time tobring proceedings against

him and he has now been stripped of hisduties, though has also been given areprieve of three weeks. Judges areclearly reluctant to act against their ownsince it lowers the image of the judiciaryas a whole.

PAST CASESWithin the judiciary and legal commu-nity, stories abound of corruption, nepo-tism and favouritism However, over thelast 70 odd years, only a handful ofjudges have been taken to task. � Justice V Ramaswami of the SupremeCourt was the first judge against whomimpeachment proceedings were initiat-ed. He was charged with excessiveexpenditure on his official residenceduring his tenure as a Chief Justice of Punjab and Haryana High Court.That impeachment process failed to gothrough parliament, owing mainly tothe caste factor. He was a Dalit, and

personal gain. He was asked to pay up.Justice Sen paid the entire money andthen went on leave. When his leaveexpired, no more judicial work wasallotted to him.� Chief Justice Dinakaran of SikkimHigh Court resigned when impeach-ment proceedings were initiated agai-nst him for disproportionate assets. This case was also diluted by caste fac-tor (like Ramaswami and JusticeKarnan, he too was a Dalit). � In 2015, a three-judge committeeprobed allegations of sexual harassmentlevelled by a former additional districtand sessions judge of Gwalior againstJustice Gangele of the Madhya PradeshHigh Court. The lady judge had com-plained that Justice Gangele had senther a message through the district courtregistrar to “perform dance on an itemsong” at a function at his residence. In2014, she resigned her post, saying thiswas the only way she could protect her“dignity, womanhood and self-esteem.”The probe committee found “insuffi-cient” material to pin down the allega-tion. The dead end reached by the probecommittee did not go down well withthe executive and 58 MPs submitted a

Judges inthe DockThe shocking case of Justice Karnan andothers before him reiterates the need toevolve a mechanism that makes those whopreside over our courts accountableBy Sujit Bhar

JWHEN LAW CATCHES UP: Justice Soumitra Sen of Calcutta HC wasimpeached in 2011 on charges of misappropriation of funds

The Judicial Standards andAccountability Bill, 2010, goes

some way towards resolving theissue of errant judges. It

attempts to lay down enforceablestandards of conduct for judges.


petition seeking impeachment of thejudge. Finally, a three-member panelwas set up by Vice-President HamidAnsari. � In June 2002, Punjab and HaryanaHigh Court Chief Justice Arun B Saha-rya stripped three corrupt judges in hiscourt of their duties, creating a prece-dent of administrative action for mis-conduct. Credible allegations against the judges—Justices Amarbir Singh Gill,ML Singhal and Mehtab Singh Gill—were that they were part of Punjab Public Service Commission (PPSC) chief Ravi Inder Pal Singh Sidhu’s jobs-for-cash scam. In a massive act, Sidhuhad manipulated mark-sheets afterexam papers were leaned to help Jus-tice Gill’s daughter Amol and JusticeSinghal's daughter Sapna to gain gov-ernment jobs.

These cases are, in fact, rare andexpose a situation where judicial proce-dures often fall short in prescribingpunishment to one of their own. It wasprobably inconceivable at the time ofthe inking of the constitution that itwould have to deal with high court andeven Supreme Court judges withoutinvolving the Executive branch which, in any case, is fraught with political,religious and other petty biases. Lastyear, the Madras High Court hit out at

the corruption within the subordinatejudiciary. At least eight judges face themusic for charges ranging from ineffi-ciency to corruption. Those disciplinedincluded Melur judicial magistrate KVMahendra Boopathy (suspended) as wellas another district judge (also suspend-ed) and five district judge cadre officers.Final action is awaited.

THE ACCOUNTABILITY BILLA comprehensive bill to oversee the con-duct of judges and quick action againstoffenders is clearly needed. The JudicialStandards and Accountability Bill, 2010,goes some way towards resolving theissue of errant judges. It attempts to laydown enforceable standards of conductfor judges and requires them to declaredetails of assets, including of their fami-ly members. The bill was introduced inparliament after being stalled for a longtime and now, a committee has dem-anded some changes.

It does, however, provide a critical

set of instruments that can be drawnupon to discipline judges who haverefused to abide by internal rulings,while providing a way out in the short-comings in the constitution as has beenseen in the Justice Karnan case.

The act will also allow the judiciaryto keep an appropriate distance fromthe executive. Several instances of clash-es with the executive have left the judici-ary wary of confrontation and an instru-ment of this nature will allow it to main-tain its distinct nature.

KEY FEATURES OF THE BILL� The bill requires judges to declaretheir assets, lays down judicial stan-dards, and establishes processes forremoval of judges of the Supreme Courtand high courts.� It establishes the National JudicialOversight Committee, the ComplaintsScrutiny Panel and an investigationcommittee. Any person can make acomplaint against a judge to theOversight Committee on grounds of“misbehaviour”.� A motion for removal of a judge ongrounds of misbehaviour can also bemoved in parliament. Such a motionwill be referred for further inquiry to theOversight Committee.� Complaints and inquiries againstjudges will be confidential and frivolouscomplaints will be penalised.

There are questions about someaspects of this proposed bill, the mostquestionable being the fact that theScrutiny Panel has judges from the samehigh court. Moreover, it is not clearwhether the power of the OversightCommittee to impose minor measures isconstitutionally valid.

There are other minor quibbles butthere is a larger issue involved. There isno question that the judiciary needs toget rid of the black sheep, and there aremany, far more than the ones who havebeen acted against. Again, it comesdown to the question of the judiciary’smain weakness—a tendency to bury itshead in the sand when one of their ownsteps out of line.

It took a long time to bring proceedings against Justice

Karnan. He has now been strippedof his duties, though with a

reprieve of three weeks.

COURTING CONTROVERSY: Two judges of the Calcutta

High Court have faced seriouscharges of misconduct

Lead/ My Space

Already embroiled in a series of controversies, Justice Karnan’s open defiance of the SupremeCourt raises serious questions

HE judiciary in India occu-pies a prime position. In thepast, the Supreme Court hassuccessfully managed toprovide legal solutions to

complicated issues involving socio-political and economic matters thathave come up before it. The Judges ofthe higher judiciary enjoy high degreeof independence and constitutional pro-tection for discharging their dutieswithout fear or favour. The judges haveto adhere to self restraint of not airingtheir views through any public platformon any issue which has the possibility ofcreating controversy.

The Judges of the higher judiciaryby and large have maintained highstandards of judicial ethics and mora-lity. There are, however, a few excep-tions, the black sheep in the system.

Justice Karnan has involved himselfin some serious controversies. As ajudge of High Court of Madras, he com-plained to the SC/ST Commission agai-nst his colleague judge for allegedlyinsulting him on caste, based on flimsygrounds. His boisterous protests in thecourt hall and addressing the mediaagainst recommendation of the namesfor elevation to the Madras High Courtwas also done in a manner which is notbefitting a judge. He further submittedhis objections against the recommenda-tions to the president, chief justice ofIndia and the Union government.Justice Karnan is also said to have beendiscourteous to chief justices andalways tried to give a caste angle to allhis protests and objections.

The Supreme Court collegium took aliberal attitude towards his waywardconduct and restrained itself from tak-ing any action. When he refused to con-

strain himself, the collegium transferredhim to Calcutta High Court. There too,Justice Karnan flouted all legal barriers,taking charge of the roster jurisdictionnot vested in him, registered a case suomotu and, more shockingly, stayed theorder of his own transfer. He did tenderan apology to the Supreme Court for hisconduct and complied with the order oftransfer but the story did not end there.He continued issuing reckless com-plaints of corruption against the Judgesof Supreme Court and the Judges ofHigh Court of Madras to the PrimeMinister and to the President.

The Supreme Court finally initiat-ed suo motu contempt proceed-ing against Justice Karnan and

demanded his appearance before theCourt on February 13. However, heignored the order. The Supreme Courtcondoned his absence keeping in viewthe constitutional post he holds andadjourned the case by three weeks inview of his plea in his written explana-tion where he asked for more time.

As he has done in the past, JusticeKarnan, a Dalit, is clearly trying to spinthe entire episode as a caste issue.

The Supreme Court should ideallyhave ignored the letters written by

Justice Karnan to the President and tothe Prime Minister for an enquiry intothe allegations made against his fellowJudges. He is in any case, due to retirein July, 2017. This would have avoidedthe unsavoury controversy. The execu-tive authorities, to whom his letterswere addressed, could have dealt withthe allegations in the complaint.

A section of the public believes thatcomplaints of misconduct or corruptionagainst the higher judiciary are beingignored and no adverse consequencesare evident. The Supreme Court has anin-house mechanism to deal with com-plaints, but that system lacks trans-parency. Only in selective cases, is theJudge involved transferred. The execu-tive is equally to blame in handlingcomplaints against the judges.

The laxity on the part of judiciaryand executive encourages people likeJustice Karnan to defy the SupremeCourt. His case has clearly shown thatthe executive needs to play a more pro-active and effective role in conductingenquiries into complaints againstjudges and initiate prompt legal actionas laid down in the constitution. Morethan anything, the Justice Karnanepisode exposes the need to have a lawthat governs accountability of judges.

The Judicial Standards and Accoun-tability Bill, which lays down judicialstandards and establishes processes forremoval of judges of the Supreme Courtand High Courts, has been pending inParliament since 2010. It is urgentlyneeded to restore the public image ofthe judiciary, seriously dented by theactions of one of its own judges.

—The author is former acting chiefjustice of Gauhati High Court

The Curious Case of Justice Karnan

T


Justice Sreedhar Rao


HAT made TamilNadu GovernorVidyasagar Rao wait solong before realisationdawned on him thatthe jailed AIADMK

general secretary Sasikala Natarajan’sproxy candidate Edappadi KPalaniswami’s contingent of 124 MLAsadded up to more than acting chief min-ister O Panneerselvam’s contingent of

11? Earlier what made the governor flyoff to Mumbai when Tamil Nadu, a statewhich he also presides over, was withouta chief minister after O Panneerselvamresigned on February 5?

Questions are now being asked aboutwhat transpired before the Governorfinally ended the suspense and formallyinvited Palaniswami to form the govern-ment on February 16. India Legal hasaccess to exclusive information about

the drama behind the procrastinationand why the Governor had to let democ-racy prevail. So here goes:

BJP’S PLANPanneerselvam never had the numbers.But in resigning as chief minister andthe governor accepting that resignation,a constitutional crisis was precipitated.There was no legal scope for taking back an accepted resignation. IfPanneerselvam had to become CMagain, he had to be sworn in—whichimplied that he would have to have the numbers.

Considering he enjoyed the supportof only 11 MLAs, that option was ruledout. Even if we factor in the BJP’s inter-est in Panneerselvam, the party too did not have the MLAs (it didn’t win asingle seat in the 2016 assembly elec-tions!) to provide support. So, was theDMK with 89 MLAs part of the BJP’sgrand plan?

It soon became clear to the BJP’scentral leadership that breaking theAIADMK and then getting the DMK tosupport the faction led by

GubernatorialOverreach?Why did Governor Vidyasagar Rao drag his feet in invitingEdappadi K Palaniswami to form the government whenthere was no doubt about the numbers? By Sujit Bhar

W

Focus/ Tamil Nadu Politics/ Jaya’s Successor

DRAMATIC TURN OF EVENTS: Governor CH Vidyasagar Rao administering oath of office and secrecy to Edappadi K Palaniswami UNI

Panneerselvam was not working out. Infact, India Legal learns from top sourcesthat the situation had become so unten-able and critical, that the Union homesecretary had to plead with theGovernor that the delay was becoming“increasingly embarrassing” and wouldend up as a fiasco. That was whenGovernor Rao decided to quickly callPalaniswami and ask him to take oathand then prove his majority on the floorof the house in 15 days.

Surprisingly, BJP leader Subraman-ian Swamy, who had filed the dispropor-tionate assets case against Jayalalithaain 1996, was the governor’s severest crit-ic. Virtually going against what wasostensibly his party’s line, he said thatthe unusual delay meant that there wasa possibility of “horse-trading” going onand if a government wasn’t sworn in 48hours a writ petition could be filed inthe Supreme Court.

Swamy’s comments were dismissedby the Tamil Nadu BJP president as notreflecting the position of the party’sstate unit. However, India Legal hasreliably learnt that the central leader-ship of the BJP was quick to takeSwamy into confidence, and ask him togo easy. Very clearly, central leaders of

the party figured that Swamy had apoint and there certainly was some sub-stance in his observation that the inordi-nate gubernatorial delay would notstand the legal test. It would be interest-ing to see if a writ, as Swamy had indi-cated, is viable even after the govern-ment has been formed.

The fallout of the political drama inChennai means that Panneerselvam, forall practical purposes, is a spent force.That he has been used as a politicalfootball was open for all to see. But theissue now is about Governor Rao’sintransigence and the forces that actedbehind him. Why did he not dischargehis duty as a constitutional head of thestate at the very outset?

TWO PRECEDENTSTo understand the Tamil Nadu imbrog-lio, one has to look back at recent inci-

dents involving the Raj Bhawans in twostates—Arunachal Pradesh andUttarakhand. In Arunachal the rulingalliance was broken and the BJP seizedpower with the help of rebels. InUttarakhand, however, the BJP usedsome Congress rebels to plunge theHarish Rawat government into crisis.

Uttarakhand Governor KK Paul setMarch 28, 2016, for a floor test, atwhich the BJP panicked. It looked likelythat the rebels it had wooed would bebought back to the Congress fold. Theywere anyway facing disqualification.Given this scenario, President’s Rule washastily invoked.

Then a unique event transpired. Forthe first time in Independent India, afloor test was conducted in a state leg-islative assembly under the direct super-vision of the Supreme Court and Rawatwas reinstated. Had the apex court notintervened, the floor test would havebeen the prerogative of the Speaker orthe Governor.

What unfolded in Tamil Nadu isshocking in political terms. For all prac-tical purposes, Sasikala will be runningthe government from jail (she hasrequested a move to a Tamil Naduprison) and if you look at the rules gov-erning jail terms, her remaining threeand-a-half years would be over quickerthan you think.

Jail laws differ from state to state,but often one “day” is taken as the hoursbetween sunlight and sunset for thesimple imprisonment which Sasikala isserving. The “night” spent in jail istaken as another day—so 24 hoursequals “two days”. Also, parole is notavailable to Sasikala and this will bededucted from her days in jail.

But as far as she is concerned, thedownside is that she cannot contestelections for 10 years. And therein liesan opportunity for the BJP and the cen-tre—if the embers of the rebellion lit byPanneerselvam can be kept alive, itcould help break the AIADMK in futureand create an Arunachal-like situation.

If and when that happens, Article356 will come to haunt Tamil Nadu.

Focus/ Tamil Nadu Politics/ Jaya’s Successor

O Panneerselvam (above) neverhad the numbers. But in resigningas CM and the governor acceptingthat resignation, a constitutional

crisis was precipitated.


UNI

IN AMMA’S FOOTSTEPSAIADMK General

Secretary Sasikala consoling party workers

after Jayalalithaa’s demise

UNI


EBRUARY 14, 2017 will godown in Tamil Nadu historyas the day justice finally pre-vailed and the late ChiefMinister, J Jayalalithaa (JJ)and her confidante, VK

Sasikala, among others, were finallyconvicted by the Supreme Court underthe Prevention of Corruption Act (PCA)for possessing assets disproportionate totheir known sources of income.

With that, the apex court rung downthe curtains on a controversial case thatlingered on for 21 years since BJP leaderSubramanian Swamy (then in theJanata Party) first filed a complaint

against Jayalalithaa on June 14, 1996.In the aftermath of the verdict, there

was political chaos in Tamil Nadu.Sasikala’s bid to take over as chief min-ister was thwarted by the verdict. She is now cooling her heels at a jail inBangalore while her nominee, E Palani-swami has been invited by GovernorVidyasagar Rao to form the next govern-ment. But many believe the turmoil inthe AIADMK, which surfaced afterJayalalithaa’s demise last year, is notquite over. There might still be a newtwist in the tale.

Political intrigue and controversywas nothing new to Jayalalithaa. In fact,

she came to power in 1991 thanks to aconspiracy-of-sorts hatched between herand Rajiv Gandhi. It was thanks to thisthat on January 31, 1991, the DMK government headed by M Karunanidhiwas dismissed by the Congress-proppedJanata Party Prime Minister Chandra-shekhar. That was followed by a drama-tic turn of events when, on May 21 ofthe same year, Rajiv Gandhi was assassi-nated by a suicide bomber at Sriperum-pudur. In the elections held in June1991, due to a massive sympathy wave,the AIADMK-Congress alliance rompedhome with a huge majority. The DMKcould manage only two seats out of

Reining in the KleptocracyThe Supreme Court verdict in the Jayalalithaa case is a severe indictment of the unholy nexusbetween politicians-civil servants-police, as well as the judicial system. It’s time we introspect on the judgement and address corruption more effectivelyBy MG Devasahayam

F

Focus/ Jaya-Sasikala’s Disproportionate Assets Case

234. That was how Jayalalithaa became Chief Minister.

KLEPTOCRATIC GOVERNANCEAn overwhelming majority in theassembly, coupled with her being the“Queen Bee” to the motely crowd ofAIADMK “slave bees”, turnedJayalalithaa’s head as well as that of herconfidante VK Sasikala. What followedwas a despotic and whimsical rule sansdemocratic norms or scruples. Soonenough, Tamil Nadu morphed fromdemocracy to autocracy. Jayalalithaabecame Saint Mary, Mother Teresa andGoddess Durga all rolled into one andthe citizens who voted her to powerbecame her “subjects”. Under her, TamilNadu adopted the kleptocratic form ofgovernance—government of the thieves,by the thieves, for the thieves.

During the run-up to next assemblyelections in 1996, Shekhar Gupta, thenwith India Today, had accompaniedJayalalithaa for three days while she wascampaigning in north Tamil Nadu.Before leaving for Delhi he dropped infor lunch. I asked him for his take on

the election. His reply was curt: “JJ willlose”. I asked him why and he answeredin one word: “hubris”. That was preciselywhat happened. AIADMK was trouncedby the combination of DMK and theTamil Manila Congress (the breakawayfaction of the Congress) with Jayalali-thaa managing just 4 of 234 seats!

The corruption case which the Sup-reme Court finally settled in February2017 goes back to 1996, soon afterJayalalithaa was voted out of power.Subramanian Swamy had filed a com-plaint that she had amassed wealth andproperty disproportionate to her knownsources of income. Subsequently, Prof K Anbazhagan, general secretary of theDMK, joined the complaint which was

investigated under the specialcourt’s direction. During theinvestigation, large amount ofincriminating evidence wasfound and a charge-sheet filedin the special court inChennai.

In 1997, the special judgeissued summons toJayalalithaa, Sasikala, VNSudhakaran and J Elavarsiand charged them under theIPC and PCA. These chargeswere denied and the accusedsought trial.

Meanwhile, the Vigilanceand Anti-Corruption depart-ment conducted further inves-tigations and gathered evi-dence of disproportionatewealth amassed outside thecountry in Sri Lanka, Dubai,Malaysia, Singapore and HongKong, and an additionalcharge-sheet was filed. During

the course of investigation and trial, 258witnesses were examined.

Jayalalithaa returned to power in2001. In November 2003, the SupremeCourt moved the case to Karnataka,with the direction to constitute a specialcourt in Bangalore and conduct the trialon day-to-day basis. The objective wasto have a speedy trial conducted in an impartial manner as demanded bythe accused.

LONG DRAWN CASEIt was on September 27, 2014, that thespecial court judge in Bangalore, JohnMichael D’Cunha passed a judgementconvicting Jayalalithaa, her “non-biolog-ical sister” Sasikala and two others forpossessing disproportionate assets. Theywere sentenced to four years’ imprison-ment and a heavy fine. The AIADMKsupremo, who immediately steppeddown as chief minister, was also barredfrom contesting elections for a period of10 years. On May 11, 2015, the convic-tion was set aside by the KarnatakaHigh Court which acquitted her of allcharges.

It had take 11 years for the trial courtjudge to pronounce the judgment. Thisis what D’Cunha said of the inordinatedelay: “It is borne out from the recordsthat, after the trial resumed before thisCourt, the accused moved applicationafter application before this Court atevery stage of the proceedings raisingdifferent interlocutory issues purpor-tedly to vindicate different facets of theirright to a free and fair trial and virtuallyevery order passed by this Court wascarried in Appeal or Revision to theHon’ble High Court of Karnataka andthen to the Hon’ble Supreme Court ofIndia resulting in considerable delay inthe progress of the case.”

The case mainly involved Jayalali-thaa, who became the first serving CMto be convicted under the PCA. She wasthe main accused and those who lived ather Poes Garden residence in Chennaiduring her first tenure as CM were theco-accused namely—Sasikala, Sudha-karan (proclaimed by Jayalalitha as her

Focus/ Jaya-Sasikala’s Disproportionate Assets Case

Jayalalithaa continues to be adeity and her grave at the Marina

has become a place of pilgrimage.The state Assembly even passed

a resolution for the conferment ofBharat Ratna on her.

Justice Pinaki GhoseHe noticed a close collaboration betweenJayalalithaa andSasikala in manytransactions, includ-

ing purchases of largeproperties and openingof about 50 bankaccounts.

Justice Amitava RoyHe gave a three-pageevocative judgment onthe plight of the common man. It wasan expression of thecourt’s “deep concern” for escalating corruptionin the country.


Court’s finding on the percentage of dis-proportionate assets being 8.12 percentwas “based on completely wrong readingof the evidence on record compoundedby incorrect arithmetical calculations”.He noticed a close connection betweenJayalalithaa and Sasikala and their col-laboration in many transactions, includ-ing purchases of large properties andopening of about 50 bank accounts. Thetrial court’s judgment was restored intoto and this is a severe censure forJustice Kumaraswamy.

Justice Amitava Roy, the secondjudge gave a three-page evocative judg-ment on the plight of the common man,the upright and the honest who findthemselves in the minority in a societywhere corruption has spread its “malig-nant” hold over every strata of society.He pointed to the Jayalalithaa case as a“startling” example of how corruptionhas a stranglehold over both the perpe-trators and the sufferers.

If Justice Roy is true to his words,the Supreme Court must take a closerlook at the manner in which JudgeKumaraswamy conducted the case. Heallowed the Tamil Nadu governmentheaded by Jayalalithaa, the mainaccused, to appoint the public prosecu-tor whereas this was the responsibilityof the Karnataka government. By thetime Karnataka appointed a prosecutor,Kumaraswamy had completed oralhearing and gave just a day to the prose-cutor for written submission which heignored while “writing” his judgment.

“foster son”) and Elavarasi (niece ofSasikala). Jayalalitha, along withSasikala (accused No 2), floated compa-nies that had both of them as partners.Property, assets and money were acqui-red and transferred in the name of thesecompanies though no actual businessactivity was carried out.

After 1991, around 31 firms werefloated in the name of Sasikala, Sudha-karan and Elavarasi, for which noincome tax returns were filed and noassessment for commercial tax wasdone. Jayalalithaa’s assets and fundswere found to be disproportionate to the extent of around `66 crore.

The trial court convicted and sen-tenced Jayalalithaa under the PCA tosimple imprisonment for a period offour years and asked her to pay a fine of `100 crore. Sasikala, Sudhakaran,and Eavarasi were sentenced to simpleimprisonment for a period of four yearsand to pay a fine of `10 crore each. Afterher conviction, Jayalalitha steppeddown as Chief Minister and nominatedO Panneerselvam as her successor.

The conviction was appealed againstin the Karnataka High Court, and theverdict was quashed by the special vaca-tion bench of Justice CR Kumaraswamy.Jayalalithaa returned triumphant aschief minister and died in office onDecember 5, 2016, as a “guiltless” per-son. However, the Supreme Court’s verdict will cast a long shadow over her reputation and legacy.

BIZARRE LOGICThe judgement by Justice Kumara-swamy of the Karnataka High Courtacquitting all the accused is bizarre anddefies all logic. The Supreme Court hasrightly torn into this perverse judgment.Justice PC Ghose, in his elaborate judg-ment, has examined every facet of thecase in detail. He lauded the trial courtfor being “meticulous, sensitive, vigilantand judicious in appraisal”; by contrast,he deplored the failure of the HighCourt “to appreciate the evidence in thecorrect legal context”.

Justice Ghose observed that the High

This warrants high-level enquiry andstringent action.The least Justice Royshould have done was to order a CBIenquiry as part of his judgment.

MISPLACED TRUSTThere is a strange quirk in the wholeepisode. Jayalalithaa continues to be adeity and her grave at the Marina hasbecome a place of pilgrimage. The TamilNadu Assembly even passed a resolutionstrongly recommending the confermentof Bharat Ratna on her. All AIADMKlegislators continue to swear by her andwannabe chief ministers are pledging tocarry on her “Golden Era”. It appearsthat Tamil Nadu is still under the klep-tocratic grip—an affront to the SupremeCourt verdict.

“Kleptocracy” is a system charac-terised by rampant greed and corrup-tion with politicians, civil servants,police, as well as the judicial system inthe orbit. In such a system, the “rulers”develop the mentality of the conquerorand function as petty autocrats. Statekleptocracy is a joint venture betweenthe politicians, power brokers and thebureaucracy. This was the case in TamilNadu during Jayalalithaa’s chief minis-tership and continues to be so.

The big question then is: will thisfar-reaching Supreme Court judgmentstem the rot and jolt the state klepto-cracy? The jury is still out on this.

(The writer is a former bureaucrat andpolitical commentator)


DREAMS DASHEDSasikala arrives at theParappana Agrahara prisonin Bengaluru. She failed inher attempt to become CM

UNI


Legal Eye/ Enemy Property Act, 1968

Thousands of Muslims could lose the property inherited from their ancestors who moved toPakistan under a new ordinance issued by the governmentBy Ramesh Menon

Controversial Ordinance

bench of Chief Justice JS Khehar andJustice NV Ramana gave a judgmentwhich said that enemy property shouldnot get transferred to the descendantsof the erstwhile owners and must go tothe government.

“We are of the view that enemyproperty should not get transferred tothe descendants of the erstwhile own-ers. It must go to the government. We

who fled to China after the 1962 war orto Pakistan after the 1965 and 1971 con-flicts. Some properties were left behindby those who moved after partition toEast and West Pakistan.

The Enemy Property Act, 1968,labeled these as “enemy properties” andvested these properties to be taken careof by the government.

In early February, a Supreme Court

HIS government is big onsurgical strikes, and now wehave one more. Nearly sevendecades after partition, theCentre is pushing an ordi-

nance which revives the Enemy PropertyAct of 1968. Armed with this, it aims todispose of over 16,000 properties valuedat several crores. Most of these are occu-pied by relatives or legal heirs of those

T

AT GOVERNMENT’SMERCYThis majestic propertybequeathed by Raja Mohammed AmirMohammad Khan ofMahumudabad in UP is under a cloud

are very clear about it,” the bench said. The relatives and legal heirs who

opted to stay back wanting to retaintheir Indian identity, now face loss oflegally inherited properties. One ofthem, who could lose numerous proper-ties in north India, told India Legal: “Ithurts when we are now seen as ‘ene-mies’ and the property we rightly inher-ited is being taken over by the govern-ment just because our ancestors choseto move to Pakistan.”

The Supreme Court refused to enter-tain Congress Rajya Sabha MP HusainDalwai's writ petition challenging thevalidity of the Centre’s decision to re-promulgate the enemy property ordinance for the fifth time, terming ita violation of a recent constitutionbench decision.

Earlier, a constitution bench of theSupreme Court had sent a strong mes-sage to the government on arbitraryordinances it promulgates. It asked whythe government had for the fifth timere-promulgated the Enemy PropertyOrdinance. It said that it was a clearviolation of an earlier order of the court.It was hearing a PIL filed by Dalwaichallenging the ordinance.

In his petition, Dalwai said: “Theaction of the government in re-promul-gating the ordinance, bypassing the leg-islative process of Parliament, is notonly arbitrary, it’s also a fraud on theConstitution itself.”

The Enemy Property (Amendmentand Validation) Ordinance, 2016, waspromulgated by the President inJanuary last year to amend the EnemyProperty Act, 1968, and the PublicPremises (Eviction of Unautho-risedOccupants) Act, 1971. The governmentmoved a bill on it to be passed in theLok Sabha but when it was presented inthe Rajya Sabha on March 15, memberswanted it referred to a select commit-tee. Parliament was adjourned hoursafter this happened.

The ordinance was therefore re-pro-mulgated on April 2 last year. Again,there was no action on the bill. So, itwas promulgated for the third time onMay 31, 2016 and later for the fourthtime. It was re-promulgated for the fifthtime on December 22 last year. No rea-sons were given. Last year, the Presi-dent had remarked that ordinancesshould be promulgated only when therewas urgency. In fact, the Supreme Courtin a recent judgment had stated that re-promulgation of ordinances was consti-

tutionally impermissible since it repre-sented an effort to overreach the legisla-tive body that is the primary source oflawmaking authority in a parliamentarydemocracy. Re-promulgation defeatedthe constitutional scheme under whicha limited power to frame ordinanceshad been conferred upon the Presidentand governors, it said.

Sources in the government arguethat there is nothing wrong with whatthe Modi government is doing asPakistan had already disposed of allproperties that were left behind bythose who fled to India. One of thosewhose properties in Uttar Pradeshwould be lost if the law came into force,said on condition of anonymity, that thegovernment move would not be able tostand scrutiny if challenged in any courtof law. Congress MP Shashi Tharoorhas said that the bill would certainly beagainst the principle of natural justiceas it would deprive legitimate IndianMuslims from their right to propertybequeathed to them.

Thousands of Muslims nowholding the property of their ancestors, who chose to move toPakistan, are worried that they maysoon lose it to the government, whichunder the new law, can acquire and dis-pose it off. Clearly, we have not heardthe last of this controversy as it willcontinue to simmer when it comes upin parliament.


In their verdict, CJI JS Khehar andJustice NV Ramana said that

enemy property should not gettransferred to the descendants of

the erstwhile owners and must go to the government.

“The action of the government in re-promul-gating the ordinance, bypassing the legisla-tive process of Parliament, is arbitrary and afraud on the Constitution itself.”Congress MP Husain Dalwai

“The bill would certainly be against the prin-ciple of natural justice as it would deprivelegitimate Indian Muslims from their right toproperty bequeathed to them.”Congress MP Shashi Tharoor OWNERSHIP CRISIS

The Butler Palace in Lucknow classified as Enemy Property

Legal Eye/ Memorandum of Procedure


EMORANDUM ofProcedure (MoP) isbeing literally used topaper over the cracksbetween the govern-ment and the higher

judiciary. The Chief Justice of India(CJI), JS Khehar, has said that the courtwill take a final call with regard to theMoP, maybe by the end of this month.He said this recently while disposing ofa Public Interest Litigation (PIL) withregard to appointment of judges to thePunjab and Haryana High Court.

After the Supreme Court in late 2015struck down the National JudicialAppointments Commission (NJAC) Act

2014 as violating the basic structure ofthe Constitution, it had agreed thatthere was need for changes in the func-tioning of the collegium, comprising theCJI and four senior judges of the court,in choosing the judges of the apex courtand those of the high courts. The apexcourt conceded that the collegium wasnot functioning as it ought to and therewas need to change its manner and mat-ter of working.

But the matter is stuck for more thana year. The Department of Justice (DoJ)had sent to the court amendments tothe MoP for consideration and consent.The last communication on the matterdates back to July 1, 2016.

Meanwhile, the department-relatedparliamentary standing committee ofpersonnel, public grievance, law and jus-tice had tackled the burning issue of thedelay in appointment of judges to theSupreme Court and High Courts in its87th report, tabled in the two Houses ofParliament in December, 2016. It isaptly called, “Inordinate Delay in Fillingup the Vacancies in the Supreme Courtand High Court.”

Committee chairman and deputyleader of the Opposition in the RajyaSabha, Anand Sharma says in the“Introduction”: “The Committee decidedto take up the subject in view of thealarming pendency of cases before the

The Inherent LoopholesSome rare insights from a parliamentary standing committee report on judges’ selection

By Parsa Venkateshwar Rao Jr

M

ARDUOUS TASK AHEADThe Supreme Court has inDecember 2016 asked thecentre to prepare theMemorandum of Procedurefor selection of judges tothe higher judiciary

Anil Shakya


Supreme Court and High Courts andthereby addressing the slow pace of dis-pensation of justice for the common citi-zens of the country. One of the mainreasons identified for the large numberof vacancies to the extent of 43 per centin the High Courts is the delay in theappointment of judges.”

The report reveals the depositionof the secretary of the DoJ in theMinistry of Law to the committee

with regard to the functioning of theHigh Court collegiums and the SupremeCourt Collegium (SCC). The secretary,DoJ, told the committee that in manyinstances the high court collegiums didnot consult the chief minister and gov-ernment with the regard to the namessuggested for the Bench “which is notjust violation of MoP but also bypassingof authorities.”

The secretary, DoJ, also told thecommittee: “Meritorious lawyers in theBar are not considered by the HighCourt’s Collegium while those whosenames are recommended by HighCourt’s Collegium are rejected by theSupreme Court Collegium to the extentof thirty per cent on an average. In somecases, it has gone up to eighty to hun-dred per cent.”

The DoJ submitted to the parliamen-tary committee many of the amend-ments to the MoP with regard to thefunctioning of the collegium.

The committee makes the stark dec-laration: “The Committee is privy tosupplemental MoPs as submitted toChief Justice of India. The response ofthe Chief Justice of India was receivedon 25.05.2016 and 01.07.2016. TheSupreme Court Collegium has agreedwith some of the suggestions made inthe revised MoP while it has not accept-ed some other provisions. Many of theproposals of the Government to bringgreater transparency, objectivity andaccountability in the appointmentprocess have not been accepted by theSupreme Court Collegium (SCC). Theviews of Government were conveyed tothe Chief Justice of India (CJI) on

3.8.2016. The response of the CJI isawaited.”

There is much more disturbing newsthat the standing committee discloses:“The Secretary (Department of Justice)in her deposition on 21st November,2016 submitted that out of eighty-sevennames recommended by SCC, forty-fourhave been cleared for appointmentwhile forty-three names were referredback to SCC for reconsideration on vari-ous grounds which includes holdingoffice of profit, adverse IB report, heldelected positions in political parties,Contradictory/Lack of views of consul-tee Judges, charges of sexual harassmentand corruption. These forty namesbelong to five High Court i.e. Allahabad(24), Madras (6), Uttarakhand (3),Karnataka (3), Calcutta (07).”

The fact that lawyers with question-able credentials had made it to the listof nominees for the post of high courtjudges should make the Supreme Court,parliament and the government to sit up

and take notice. The standing committee in its series

of recommendations for resolving thestand-off between the government andthe higher judiciary, suggests someremedies to bring about what it calls“Glasnost in the process of appointmentof Judges.” One of them is both for thecollegium and the government to statetheir reasons when they reject a nomi-nee. It says, “At present, the reasons forrejection of a particular candidate by theSupreme Court Collegium are not dis-closed. The Committee feels that in casea candidate’s name is rejected for anyreason by the Collegium, the candidatemust be informed of the grounds ofrejection. The Committee also observesthe Government also rejects the namesrecommended by the Supreme CourtCollegium without providing cogent rea-sons therefor. Such practices are againstthe principles of natural justice andleads to opaqueness in the appointmentof judges.”

The other area of concern which thecommittee has voiced is with regard tothe Government rejecting the recom-mendations of the collegium on groundsof “national security” and “larger publicinterest”. This criterion is part of the“revised MoP”. It says: “The Committeeapprehends that the Government mayreject any name duly approved by theSupreme Court Collegium under the veilof those parameters. This would tanta-mount to giving veto power to theGovernment, which is not as per man-date of the Constitution.

“In order to avoid such a situation,the Committee recommends that theterms ‘national security’ and ‘larger pub-lic interest’ should, in no unambiguousterms be defined and circumstan-ces/antecedents which fall within theirpurview listed.”

The committee makes it clear thatthe appointment of judges is not a merepower tussle between the Governmentand the Judiciary, and that the parlia-mentary oversight through standingcommittees in the matter cannot beoverlooked.

Chief Justice of India JS Kheharhas said that the apex court will

take a final call with regard to theMemorandum of Procedure by the

end of this month. The matter isstuck for more than a year now.

Economy/ GST


HE Goods and ServicesTax (GST) is a complexexercise that has causedmuch confusion and needfor clarity. In simple ter-ms, it is destination based

consumption tax on the supply of goodsand services. India decided to have thedual GST model where both the Centreand the states would levy and collectGST on a common tax base, keeping theprinciple of cooperative federalism inmind. There are three components ofGST—Central GST (CGST) and StatesGST (SGST) for supplies within a statewhere the state share remains withinthe state, and Integrated GST (IGST)for inter-state supplies where the state’sshare does not remain within the originstate, but goes to the Destination State.

COMPLEX CHALLENGEA major challenge was to ensure that ataxpayer has interface with only one ofthe two tax administrations—Centre orthe state in the both the cases of intra-state and inter-state supplies. The GSTCouncil, after its ninth meeting, sought

The question is—in light of theamended Constitutional provisions, arethe decisions regarding the aforesaidcross empowerment legally tenable?

The Constitutional provisions arecontained in Clause (2) of Article 246A:“Parliament has exclusive power tomake laws with respect to GST wherethe supply takes place in the course ofinter-state trade or commerce.”

As against this, Clause (1) of Article246A states: “Parliament, and, subjectto clause (2), the Legislatures of everyState, have power to make laws withrespect to goods and services tax impo-sed by the Union or by such State.”

Effectively, Clause (1) read withClause (2) empowers both Parliamentand the Centre to make laws withrespect to only intra-state supplies. Theposition is further clarified by Article269A (1) which states that GST “on sup-plies in the course of inter-State trade orcommerce shall be levied and collectedby the Government of India and suchtax shall be apportioned between theUnion and the States.”

A reading of the Articles 246A and

No Constitutional ValidityThe recent decision to cross-empower states to collect Integrated Goods and Services Tax(IGST) will run into trouble since the power to levy and collect this vests only with the CentreBy Sumit Dutt Majumder

Tto resolve it through cross-empower-ment of the states by the Centre andvice versa through following decisions.

For intra-state supplies by the tax-payers below the threshold of `1.5 crore,the decision was that the states wouldadminister both SGST and CGST for 90percent of the taxpayers, leaving thebalance 10 percent for Centre. Abovethis threshold, the taxpayers base willbe divided 50-50.

Even for administering IGST, the taxpayer base will be divided in the sametwo ratios. However, if there is a disputebetween the states over determinationof the “Destination State”, the IGSTwould be administered by the Centre.The determination of Destination Stateis key to determining which state willreceive the state’s share of IGST. Auditwill be capped at 5 percent of the totalnumber of taxpayers, based on risk fac-tors. The auditees will be sharedbetween Centre and the states througha computer based programme. As forintelligence based enforcement work,this will be in the domain of both theCentre and the states.

PIB


269A thus makes it clear that for inter-state supplies, Parliament has the exclu-sive power to make laws relating to GST,and the Centre has the exclusive powerto levy and collect IGST. Article 269Afurther clarifies that IGST so collectedwill not be apportioned between theUnion and the states. The pre-amend-ment provision of Article 269 reads“Taxes levied and collected by the Unionbut assigned to the States.” The diction-ary defines the word ‘assign’ as “to give aparticular job or piece of work to some-one”. The amended provision omits“assigned to the states”.

In light of this, it’s clear that theamended Constitutional provisions donot allow the Centre to cross-empowerthe states by assigning the job of collec-tion of IGST. The Council seems to haverelied upon Articles 258 and 258Awhich empowers the Centre to confer itspower to the states in certain cases andvice versa. Article 258 (1) which dealswith power of the Union to conferpower, etc. on the state in certain casesstates that “the President may, with theconsent of the Government of a State,entrust either conditionally or uncondi-tionally to that Government or to itsofficers functions in relation to any mat-ter to which the executive power of theUnion extends.”

The Clauses (2) and (3) of Article258 further elaborate upon this crossempowerment. Clause (3) in particularprovides that “there shall be paid by theGovernment of India to the State” anyextra costs of administration “incurredby the State in connection with the exer-cise of those powers and duties.”

A CONTRADICTIONThe delegation of power by the centralgovernment to the state governmentunder Article 258 is an extraordinarypower in extraordinary circumstanceslike, for instance, when the centralbureaucracy is not available or not com-petent enough to undertake a particularjob. In the present instance, there existsan experienced tax administration underthe Central Board of Excise & Customs.Further, under this scheme, assessmenterrors by the state government officerswould go outside the parliamentaryoversight through the Comptroller andAuditor General and Public AccountsCommittee.

On the other hand, the CBEC taxadministration is answerable to

Parliament. Power and accountabilityhave to go hand in hand. A close scruti-ny of Articles 268 to 270 would show afundamental design feature that taxesare administered by the government towhich the tax accrues. IGST does notaccrue to the origin states, thereforethey cannot administer IGST. In thetechnological scheme of IGST, the desti-nation state cannot be pre-identifiedand tasked to administer IGST Thus,Article 258, an extraordinary construct,cannot supersede an explicit declarationin Article 269A that IGST be levied andcollected by Centre.

Another issue relates to the possibili-ty of disputes between the origin stateand the destination state. Delegation ofIGST powers to the origin states meansempowering a third party to adjudicateon revenue which belongs to the desti-nation state and the centre. Further, inthe decision regarding IGST there is arider that in cases of dispute betweentwo states regarding place of supply, theadministering of IGST would vest onthe Centre.

Finally, on the issue of cross empow-erment in IGST the Union law ministryhas categorically opined that the powerto levy and collect IGST vests only withthe central government. Cross empow-erment between Centre and States oncollection of CGST and SGST in respectof intra- state supplies is fairly accept-able in the absence of any bar like theone in respect of IGST.

It is everybody’s case that in the GSTregime taxpayers should have interfacewith only one tax authority. Therefore,the tax base has to be divided betweenthe Centre and the states in consonancewith constitutional provisions, and ithas to be equitious. Sharing a portion ofthe tax base 90-10 in favour of the statesis unfair and inequitious. GST is like ajoint venture between Centre and thestates and equal sharing of the entire taxbase for intra state supplies is essentialfor its success.

(The author is former Chairman,Central Board of Excise & Customs)

COMPLEX CHAIN (Left) Finance Minister Arun Jaitley chairingthe GST Council Meeting in Delhi inJanuary this year; (above) trucks awaitclearance at an inter-state checkpost

It is everybody’s case that in theGST regime taxpayers should

have interface with only one taxauthority. The tax base has to bedivided between the Centre and

the states in consonance withconstitutional provisions.

Spotlight/ Housing for the Poor


HEN Union financeminister ArunJaitley presentedBudget 2017 onFebruary 1, it wasvariously hailed for

its pro-poor focus. Typically, urbandevelopment minister Venkaiah Naidudescribed the budget as a “progressive”policy document. “The finance ministerhas placed before the country a lokpriya(popular) budget. But, it is not populist,rather people-oriented and reflects thecentre’s inclusive development plan bygiving a significant push to affordablehousing,” he gushed.

But as the dust settled, the realisa-tion dawned on those who keep a closewatch on the housing sector that thenew “affordable housing policy” hadfundamental flaws and lacked the legalteeth to counter misuse by developerswho could claim a 100 percent tax waiv-er on profits for five years in the name ofproviding affordable housing.

Small, but notAffordableThe Union budget’s new housing initiative does not havethe legal provisions to stop builders from exploiting thepolicy and claiming tax benefits. The government has erredby linking small-sized flats to economy housing By Ajith Pillai

W

URBAN CHAOSOrganised housingfor poor is still a farcry in most townsand cities

Anil Shakya


As Chandrasekhar Prabhu, a well-known Mumbai-based housing andurban development expert told IndiaLegal: “The new policy does not addressthe fundamental question of prices, butlinks size to affordability. A small flat isnot necessarily an affordable flat. It alldepends on where it is located. The gov-ernment by not fixing prices and relyingon the dubious formula that small isaffordable has made a mistake. As I seeit, this is an initiative which will seebuilders laughing all the way to thebank.”

REDIFINED PARAMETERSThe scheme spelt out in the budget isvery clear. Affordable housing has beenredefined as flats with a “carpet area” of30 square metres in the corporationlimits of the four major metros—Mumbai, Delhi, Kolkata and Chennai—and 60 square metres outside it and inthe other cities and towns. Earlier it wasdefined as housing with a “built up” areaof 30-60 square metres. This redefini-tion is significant since it has increasedthe floor area of affordable housing byalmost 40 percent.

Carpet area is the actual size of theliveable area of the flat excluding theouter walls and balconies. Built up areaincludes the outer constructions. Byredefining “affordable” in terms of car-

pet area, the budget hasincreased the size ofaffordable flats. So,builders can stretch thecarpet area by incorporat-ing the built-up areawhich includes balconiesand floor space conces-sions into the size of theflats. Thus a 30 squaremetre flat can be trans-formed into a 450-500square feet one bedroom flat and a 60square metre apartment becomes a 900-1000 square feet two-bedroom flat.

In Mumbai, which is an extreme casevis-à-vis prices, a one bedroom flat maycost anywhere between `1 crore to `3crore depending on the area. And in acity like Bangalore, which does not fallwithin the definition of a major metro,the price of a two-bedroom apartment(900-1000 square feet) may rangeupwards of `60 lakhs to `1.5 crore.

If we take the benchmark set byurban development experts, affordablehousing should fall within the salaryearned by the breadwinner of a family infive years. By the urban developmentministry’s own calculation, the majordemand (95 percent) for inexpensivehousing comes from those who earn lessthan `2 lakh a year.

Lawyers who advise builders told

India Legal that there is nothing thatprevents a builder from constructingaffordable housing units at a location ofhis choice. “It can be Napean Sea Roador Parel in Mumbai or Vasant Vihar inDelhi. There is nothing illegal about itprovided the size is right,” says a lawyer.According to him, builders and theirlawyers will also help buyers find waysto buy multiple flats under differentnames and amalgamate them to own ahuge flat in an upscale locality.

MAJOR INCENTIVESThe incentives to builders and develop-ers who build such affordable housing inareas of their choice are significant.Here are some of them:

*100 per cent tax deduction on prof-its under 80-1BA of the IT ACT till com-pletion of the project, which must beconcluded in five years.

* Capital access from banks with a 2percent interest rate concession.

* Foreign funding through the exter-nal borrowing provisions

*Affordable housing given status ofinfrastructure development, making iteligible for benefits and priority.

Given all these sops it’s no wonderthen that the reality industry is expect-ing a huge turnaround in its profits. Butthe big question is whether it willaddress the concerns of those who needaffordable housing. According to sourcesin the urban development ministry it ismost likely that the so-called budget

VERTICAL REALTYBuilders are increasingly

building vertically tosave on land and to

maximise profits

AMBITIOUS PLAN Prime Minister launching Pradhan MantriAwas Yojana housing scheme for the poor

Anil Shakya

homes could well be brought up bythose in the upper income bracket.“There should have been a cap on theprice to make any sense,” says an official.

Adds Prabhu: “It’s like saying youcan make spoons provided the size isright. They can be made of gold, plat-inum or of aluminium. It doesn’t matter.I think without a cap on the prices, giv-ing tax waivers to builders is uncalledfor. If they build flats priced at `10- 12lakh give them concessions by all meansbut why give them sops when they willbe selling at `1-2 crore? Can you callthat affordable?”

According to the urban developmentministry the present requirement foraffordable housing is 180 lakh homes.This figure could go up to 300 lakh by2030 if the mountain of demand that ispiling up is not met. But as one formerofficial in the urban development min-istry told India Legal: “The scale of theproblem is such that the governmentcannot solve it by providing incentivesto builders when they will be buildinghouses that cannot be afforded by those

who require it.” This is a point that Mumbai-based

architect and urban development expertPK Das reiterates at length. He toldIndia legal: “The affordable housingprovided in the budget does not addressone fundamental issue—land. There isno mention of land anywhere. It hasbeen left to the builders to identify it,buy it and develop it. They will obvious-ly buy in areas where they can maximiseprofits. The government cannot run tothe market and expect it to solve theproblem of housing for the poor. It isonly government bodies, PSUs and stateenterprises which can build affordablehousing and not the developers. If thegovernment is serious then it shouldregulate prices and step in itself andstop treating housing as a commodity.”

POOR MANAGEMENTBut getting government organisationsand state housing bodies to address theproblem is a challenge. It would entailsetting deadlines and ensuring that bot-tlenecks and bureaucratic red tape does

not slow down the process. It was with much fanfare that the

Prime Minister launched his “housingfor all by 2022” programme—thePradhan Mantri Awas Yojna in 2015.The target was to construct 30 lakhaffordable homes a year. But it has woe-fully fallen short of its target. In fact, areview done last year by the urbandevelopment ministry revealed that nomore than 19,255 units were construct-ed despite 864 projects having beencleared. Had all of them been completedthen over 7 lakh affordable homes cost-ing anywhere between `12-15 lakhswould have been ready for occupation.

But can the builders and developerssolve the problem when the governmenthas failed? Many experts see a boom inthe realty sector in the post-budget sce-nario. Whether that will translate intoaffordable housing for all is a big ques-tion. Simply put, with profits in mindthe developers may lack the social com-mitment required for providing homesfor the economically weaker sectionof society.


Spotlight/ Housing for the Poor

“The government by notfixing prices and relying onthe dubious formula thatsmall is affordablehas made a mistake. As I see it this is an initia-tive which will seebuilders laughing all theway to the bank.”Chandrasekhar Prabhu,urban developmentexpert

“The government cannot run to the market and expect it to solve the problem. If it is serious then it should regulate prices and step in itself and stop treating housing as a commodity.”PK Das architect andurban planner

“The finance minister hasplaced before the countrya lokpriya (popular)budget. But, it is not pop-ulist, rather people-ori-ented and reflects thecentre’s inclusive devel-opment plan by giving asignificant push to afford-able housing.”Venkaiah Naidu, urbandevelopment minister

� India currently requires 180 lakhhomes for the economically weakersections of society � This figure is expected to go up to300 lakhs by 2030� 95% of those who don’t own ahouse earn less than `2 lakh perannum � The expert view is that an affordablehome is one that is priced at the 5-year earnings of the breadwinner of a family� The budget has defined affordablehousing by the size of each unit. Flatsin the four major metros with a carpetarea of 30 square metres and 60square metres in other cities/townshave been classified as affordable � The fear is that developers will buildhigh priced small flats in tony areasand rake in huge profits � Significant tax cuts and sops havebeen offered to builders

Affordable Housing: A Snapshot

My Space Parsa Venkateshwar Rao Jr

Article 110 of the constitution saysLok Sabha Speaker decides

if a bill is a Money Bill

HIEF Justice JS Khehar’sretort to Attorney GeneralMukul Rohatgi onFebruary 13 was indeedshort and sharp. He said:“If the Speaker says blue is

green, we will tell her that blue is blueand not green.” Rohatgi was quotingArticle 110 of the Constitution whichsays whether a bill is a Money Bill isdecided by the Lok Sabha Speaker, and the Speaker’s decision is final.

The context was a petition filed byCongress Member of Rajya Sabha,Jairam Ramesh, challenging theNational Democratic Alliance (NA) government passing the Aadhaar(Targeted Delivery of Financial & OtherSubsidies, Benefits & Services) Bill 2016 as a Money Bill. Ramesh’s counselis former Finance Minister and fellow-Member of Rajya Sabha, PChidambaram. The Supreme Court hasdecided to look at the question closelythough it made clear that it was “tenta-tively” not convinced by the groundspresented by Ramesh, and it posted the

case for next month.It is a known fact that Finance

Minister Arun Jaitley fell back on theMoney Bill strategy to outflank theopposition in the Rajya Sabha, and letthe Bill go through. The Lok Sabhapassed the Bill on March 11, 2016, andit was marked as a ‘Money Bill’ bySpeaker Sumitra Mahajan. The Bill waspassed in the Rajya Sabha with amend-ments on March 15, 2016. As it was aMoney Bill, the Lok Sabha was notbound to accept the amendments, andit would have become a law even if ithad been rejected by the Upper House.

The convention of the Money Billbeing the sole right of the Lower Housestems from British constitutional histo-ry. After a series of deadlocks between

the House of Commons and the Houseof Lords, the Parliament of 1911 made itimperative that the House of Lordscould not ever vote out a Budget. Thereare curious twists and turns in the story,but they should not distract us here.But the important issue was that theHouse of Commons was elected directlyby the people, the House of Lords was anominated House.

As with many other things, theIndian Constitution-makers adoptedthe Westminster model of the upperhand of the Lower House over theUpper House with regard to the MoneyBill, and this was enshrined in Article110. It has to be noted however that theRajya Sabha or the Council of States isas much an elected body and not nomi-nated one like the British House ofLords. Rajya Sabha members areindeed elected by members of the statelegislatures but they do not for that rea-son have less constitutional legitimacy.

The Modi government in general hasbeen fidgeting over its lack of majorityin the Rajya Sabha, though Jaitley is the

Putting theSpeaker in

a Tight Spot

C


REALITY BITES: The Modi govt struggles with its lack of majority in the Rajya Sabha

The case becomes tricky for thegovernment because while

shifting the responsibility of the decision to declare a Bill a Money

Bill, it is exposing the Speaker.

UN

I

Speaker that it is a Money Bill. The case becomes tricky for the gov-

ernment because while shifting theresponsibility of the decision to declarea Bill a Money Bill, it is exposingSpeaker Mahajan. It is a well-knownfact that the Speaker is situated uncom-fortably because he or she is from theruling party, and there is the generalexpectation of strict impartiality. Butover the years, the Speaker has been inthe line of opposition and media fire fornot living up to the ideal of the neutralumpire. That is why, Rohatgi talkedabout how the Speaker’s decision, espe-cially when the Constitution specifiesthe power so explicitly, in the matter ofMoney Bill cannot be questioned.

The question that comes up is thatthis decision is not taken by the Speakeron her own but at the urging of the gov-ernment of the day. The Governmentcan argue that it was able to convincethe Speaker on why a Bill was a MoneyBill and the Speaker was convinced onrational grounds. This may raise theprospect that the Speaker may be req-uired to reveal the reasons. There is thetradition of the Speaker giving a rulingand giving the grounds for the ruling.The ruling is not questioned as a matterof parliamentary convention. It seemsthat the Modi government has put theSpeaker in a tight spot in its bid to out-wit the opposition in the Rajya Sabha.

There is of course the irony that theModi government is implementing theidea of Manmohan Singh’s governmentthat the Aadhaar number should belinked to disbursal of subsidies. It wasclearly spelt out in President PranabMukherjee’s address to the Joint Sessionof Parliament on February 21, 2013!

one who was most vocal about it. Hewent to the extent of raising the ques-tion as to how relevant is an ‘unelected’Rajya Sabha and whether it should haveany right to block any law passed by theLok Sabha. Frustrated by the Oppo-sition’s obdurate tactics—the same tac-tics that the BJP had used as effectivelywhen it was in the opposition from2004 to 2014 with regard to the Goodsand Service Tax (GST), which it blockedeffectively as well as the insurance legislation—he fell back on the MoneyBill ruse.

What Ramesh/Chidambaram are

questioning is the government’s bid toturn any bill into a Money Bill, andpushing the responsibility of the deci-sion on to the Speaker. The non-Congress opposition parties opposedthe Aadhaar Bill on counts of it beingan unjustified Money Bill, and that itinfringed the privacy of individuals, andtherefore touched on personal liberty.There is the disturbing provision in thebill that the information collected forproviding the Aadhaar number can beused for purposes of ‘national security’,though not any more for the vaguer rea-son of ‘public interest’.

But the legal tusslein the SupremeCourt will revolve

around what can betermed a Money Bill if theGovernment or theSpeaker want to extend its meaning to other related bills.

Article 110 (1) defineswhat a Money Bill isunder seven heads under‘a’ to ‘g’ and what is not aMoney Bill in Article 110(2). Article 110 (3) statesclearly, “If any questionarises whether a Bill is aMoney Bill or not, thedecision of the Speaker ofthe House of the Peoplethereon shall be final.”Hence the retort of ChiefJustice Khehar about theSpeaker’s power to declarea Bill a Money Bill. 110(4) specifies that before aBill is sent to the RajyaSabha and to thePresident for assent, it hasto be endorsed by the

It is a known fact that FinanceMinister Arun Jaitley fell back on

the Money Bill strategy to outflank the opposition’s

majority in the Rajya Sabha.

BASIS OF AADHAAR: Anidea of the ManmohanSingh’s government toempower residents of Indiawith a unique identity and adigital platform


PIB


States/ Madhya Pradesh/Vyapam Scam

in an appeal filed by 114 students whohad been found guilty in an investiga-tion instituted by Vyapam (MadhyaPradesh Professional ExaminationBoard). “It is not a satisfactory out-come,” he said, indicating that heexpected the court to go a little furtherand identify the culprits or build a time-bound process in which their identifica-tion could begin.

ORMER Additional SolicitorGeneral Vivek Tankha hasbeen at the forefront of a pub-lic interest litigation related tothe country’s worst-ever educa-

tion and jobs scam—widely known asthe Vyapam scam—in the SupremeCourt. This week, the apec court can-celled the degrees of 634 doctors whohad graduated between 2008 and 2012,

F

Insufficient Closure

The Supreme Court has cancelled the degrees of 634 doctorsconnected to the Vyapam scam but the real culprits remainunidentified despite the loss of 50 lives so farBy Neeraj Mishra

July 2003: Indore Crime Brancharrests 20 impersonators and regis-ters FIR against them

July 2013:Dr JagdishSagar arrestedfor allegedlyhelping hun-dreds of can-didates tocheat in amedicalentrance exam

August 2013: Special Task Force (STF)takes over all criminal cases registered inconnection with the examinations con-ducted by Vyapam

Subversion of Democracy A look at the history of the casethat has seen several twistsand turns

September2013:VyapamexamcontrollerPankaj Trivediarrested

November 2013: STF investigationsreveal that Vyapam officials devised simi-lar fraudulent methods in other recruit-ment exams, like the food inspectorselection test and the sub-inspector andpolice constable recruitment tests

June 2014:STF arrests ex-state technicaleducation min-ister and BJPleaderLaxmikantSharma

April 2014: Twenty-seven studentsof Mahatma Gandhi MemorialCollege, Indore, expelled

December 2013: FIR filed against ex-higher education minister LaxmikantSharma

February 16, 2014: OppositionCongress reveals informationsourced from a “whistle-blower”,alleging that the STF is protectingthe MP Chief Minister

Students may be the worst affectedin this scam which came to light in2013. While 634 doctors lose theirdegrees immediately, a total of 1,087doctors who graduated in the same peri-od and were found guilty by an internalinvestigation stand to be hit by the judg-ment. The appellants had approachedthe SC against the judgment of theJabalpur High Court which found themguilty based on the investigation reports.A two-judge bench last July found themguilty but could not reach a decision asJustice J Chelameswar was of the viewthat the students may be let off with awarning and on condition of social serv-ice to prevent “national waste”. The issuewas referred to a three-judge benchheaded by CJI Justice JS Khehar whowrote the unanimous judgment.Dismissing the social service plea, hestated unequivocally that “fraud cannotbe allowed to trounce, on the stratagemof public good.”


COMMON CAUSEYouth Congress activists staging a demonstration in Bhopal

November 2014: Madhya PradeshHigh Court rejects Congress leaderDigvijaya Singh’s petition seeking CBIprobe. Court orders formation of a SIT tomonitor the probe

February 2015: FIR filed againstGovernor Ram Naresh Yadav

March 2015: Shailesh Yadav, son ofGovernor Ram Naresh Yadav, founddead at the Governor’s official resi-dence in Lucknow

July 7, 2015: ATV journalistAkshay Singh(right), a Jabalpurcollege dean anda woman SIfound dead in aspan of 48 hours

September 24, 2015:CBI conducts 40 searchesin MP and UP, including onthe premises of formertechnical education minis-ter Laxmikant Sharma andofficials of the MadhyaPradesh ProfessionalExamination Board

October 2015: CBI submits its firststatus report

July 9, 2015: Supreme Courtorders CBI probe

July 27, 2016: Supreme Court asksCBI to take up 634 bogus admissioncases in medical colleges

December 27, 2015: An Indorecourt sentences a student and animposter to three years’ RI

July 2016: : Themain conspira-tors—Vyapamexamination con-troller PankajTrivedi and chiefsystem analystNitin Mahindra(right)—get bail

August 6, 2016 : Gwalior bench ofMadhya Pradesh High Court grantsbail to the last of the main accused inthe scam, Dr Jagdish Sagar, with fourothers

January 2017 :CBI rules out foulplay in the death of journalist AkshaySingh

February 14, 2017:Supreme Court cancels degrees of 634 MBBS students

UNI

States/ Madhya Pradesh/Vyapam Scam

Various estimates put the scam—which principally worked on money fordegree and jobs—at over ` 20,000 crore,depending on the period taken into con-sideration. The most distressing aspectof the sordid drama has been the loss ofnearly 50 lives over the past four years.At least 12 of these deaths have beenhighly suspicious as the deceased wereeither accused or witnesses. The scam isrepresentative of everything that iswrong with our higher education system.Everyone from then RSS chief V Sudarshan and RSS leader SureshSoni, two BJP chief ministers, the state’sGovernor and several top bureaucratsand their wards have dipped their handsin a system which has kept out thedeserving and kept in the moneyed andthe influential.

Among those who have died, somehave been allegedly murdered or havecommitted suicide, include the son of thestate Governor, the dean of a medicalcollege and a top bureaucrat.

Investigations into the scam revealwhat is wrong with our policing—shoddyscrutiny of evidence, insufficient inquiry,deliberate omissions and commissions.

Though the arrests have includedLaxmikant Sharma, a BJP minister and


Students may be the worstaffected in this scam which

came to light in 2013. Around1,087 doctors stand to be hit

by the judgment.

Dismissing thesocial serviceplea, Chief Justiceof India JS Khehar stated unequivo-cally that “fraudcannot beallowed totrounce, on thestratagem of public good.”

Madhya Pradesh ChiefMinister Shivraj SinghChouhan has tilted

the narrative towardsthe inclusion of formerCM Digvijaya Singh’stenure in the investi-gations. Politically it isa difficult road aheadfor him.

Former chief ministerDigvijaya Singh—one of the petitionersin the PIL filed in the SC—submitted a pen drive asevidence which showsexcel sheets with namesof successful candidatesand those who had rec-ommended them.

several of his office staff, Vinod Bhan,CMD of a medical college, RK Shivhare,IPS officer, Amit Pande, husband of anIAS officer, Pankaj Trivedi, ex-examina-tions officer, and VS Bhadoria, whoheaded the Vyapam in the given period,political moves have hit investigations.

QUESTIONS GALORESome of the submissions of the SpecialTask Force of the state government andlater the CBI have been confounding.These include the confusion regardingthe hard disk found on the computer ofthe chief digital officer of Vyapam.Former chief minister Digvijaya Singh,who is one of the petitioners in the PILfiled in the SC, had submitted a pendrive as evidence which shows excelsheets with names of successful candi-dates and those who had recommendedthem. Forty of these names had CMmarked against them. When the STF

presented its interim report to theJabalpur HC in 2015, it was alleged thatthe hard disk had been tampered withand Union cabinet minister UmaBharti’s name had been inserted in placeof the CM. Bharti went on the offensiveand declared her life was in danger.

The HC dismissed Digvijaya’s allega-tions and maintained that the hard diskhad not been tampered with. The CBIhas said the same in the SC. Does thisamount to saying that the CM stands forShivraj Singh Chouhan? That is notclear. Meanwhile, the CM has claimedvictory and says truth has prevailed.

Which truth has prevailed is difficultto establish at the moment without theCBI questioning the chief minister andgoing into the details of how the namesof RSS and BJP leaders Sudarshan, Soni,Bharti etc have appeared.

Chouhan has meanwhile tilted thenarrative towards the inclusion of formerCM Digvijaya Singh’s tenure in the inves-tigations. Politically it is a difficult roadahead for him. The Vyapam was formedin the 1970s to conduct exams for thelimited number of engineering and med-ical seats which the state had throughPMT and PET tests.

In 2006, it was the BJP governmentwhich had expanded its mandate toholding tests for contractual teachers,forest guards, constables and foodinspectors, amongst others. This openeda gateway to corruption like neverbefore. The booty was shared all aroundas a medical seat fetched `30-40 lakh,while a job offer got anywhere between`10-30 lakh. Fate and justice have a wayof catching up with perpetrators ofscams at the most inopportune momentas RJD supremo Laloo Prasad Yadavand the new AIADMK queen whomissed the crown VK Sasikala Natarajanhave learnt. The UP results may have anunexpected fallout if the BJP loses andfate may yet catch up with Shivraj whenhe least suspects or expects it.

—Neeraj Mishra is a senior journalist and a practising lawyer at Chhatisgarh High Court

NO HOLDS BARRED

January 15, 2017 `100

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States/ Madhya Pradesh / Narmada Bachao Andolan


OU have been strugglingfor compensation for 38years. We are going togive it to you in one shot,”Chief Justice of IndiaJustice JS Khehar told

Narmada Bachao Andolan (NBA) leaderMedha Patkar on February 8. Theremark accompanied the SupremeCourt order hiking the compensation tothe Sardar Sarovar Project (SSP) ousteefamilies by more than 11 times—from`5.5 lakh to `60 lakh per family. Patkar,

took to the streets and litigation resultedin inordinate delays and multi-fold costescalation. The dam was finally com-pleted in 2006, about two decades afterconstruction began.

The SSP is one of India’s largestwater resources projects, covering fourmajor states—Maharashtra, MadhyaPradesh, Gujarat and Rajasthan. Thedam’s spillway discharging capacity(30.7 lakh cusecs) would be the thirdhighest in the world. With 40,000cusecs capacity at the head regulatorand 532 km in length, the Narmadamain canal would be the largest irriga-tion canal in the world. The dam will bethe third highest concrete dam (163metres) in India, the first two beingBhakra (226 metres) in HimachalPradesh and Lakhwar (192 metres) inUttar Pradesh.

The project site is situated across theNarmada river near Nandod district of

Justice for Narmada Oustees After 38 years, the Supreme Court directed a compensation of`60 lakh each to be paid to 681 families hit by the SardarSarovar Project. In a rare gesture, both the Gujarat and MadhyaPradesh governments welcomed the orderBy Rakesh Dixit

on whose petition the order came, wasvisibly satisfied.

Surprisingly, the two major respon-dents in the petition—the governmentsof Madhya Pradesh and Gujarat—toowelcomed the court order. Seldom, ifever, in the 38-year-long legal disputeover the SSP, have both parties con-curred with a court order.

Aimed at creating a better irrigationnetwork and power generation, theproject took off in 1979. However, it wasmarred by controversies after activists

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Anil Shakya


Gujarat. The main dam, up to crest levelof 121.92 metres, has been completed.Power potential of 1,450 MW has beencreated through a river bed powerhouseand a canal head powerhouse. MadhyaPradesh has 57 percent (826.50 MW)share and, accordingly, electricity is sup-plied to the state.

The NBA claims the dam displaced320,000 people—a majority of them

poor tribal farmers who were not prop-erly resettled on fertile land – and dis-rupted the lives of thousands more.

The official figure of the displacedfamilies is 41,000 coveringGujarat, Madhya Pradesh and

Maharashtra. Most families are fromMP. A three-judge bench headed byJustice Khehar and comprising JusticesNV Ramana and DY Chandrachud,ordered payment of ` 60 lakh to each ofthe 681 affected families in MadhyaPradesh who had not received any com-pensation for acquisition of their land.

The bench also ordered payment of`15 lakh each to 1,358 families who hadalready received two instalments (thesefamilies had received cash compensationin lieu of land in two instalments—` 2.69 lakh in the first and around Rs 3lakh in the second), saying: “They need

to be further compensated so as to alle-viate their hardship and enable them topurchase alternative land.” However, theorder added, “amount already receivedby them shall be deducted from thismoney.”

These payments have to be madewithin two months on the condition thatthe affected families undertake to vacatetheir land for the project by July 31. Thecourt said it was up to the state govern-ment to use force in order to get theland vacated if the families didn’t leaveon their own by this date.

According to the bench, monetarycompensation had been chosen as theproposed land compensation was not feasible. The court asked theGujarat government to give the moneyto the Madhya Pradesh government’sNarmada Valley Development Authority(NVDA) for further distribution throughits Grievance Redressal Authority head-ed by a retired High Court judge. Theorder is confined to Madhya Pradesh, asthe highest number of oustees is fromthat state.

The bench clarified that all civil andcriminal cases, including those emanat-ing from the Jha Commission report onrehabilitation of families affected by theproject, shall come to an end.

The Jha Commission, headed by aretired High Court judge, Justice SSJha, was set up in 2008 by the ShivrajSingh Chouhan government on theMadhya Pradesh High Court’s order tolook into allegations of irregularities incompensation to the project-affectedfamilies (PAFs). The commission,through a seven-year inquiry, found thatgovernment officials in collusion withmiddlemen had cheated the PAFs andgot at least 1,589 fake sale deeds of landregistered, causing a loss amounting tohundreds of crores of rupees to the gov-ernment. The commission’s report wassubmitted to the Madhya Pradesh gov-ernment last year but has not even beentabled in the assembly, much less actedupon. Instead of taking criminal actionagainst the nexus, alleges Patkar, theMadhya Pradesh government

RELIEF FINALLY(L to R) Activist Medha Patkar; NBAactivists staging a dharna inNew Delhi

CONTROVERSIAL WATERSVisitors at the Sardar Sarovar Dam

Aimed at creating a better irriga-tion network and power genera-

tion, the project took off in 1979.It was marred by controversies

after activists took to the streets.

UNI

is trying to propel the cash compensa-tion scheme forward.

Taking cognisance of Patkar’s com-plaint, the court has directed theGrievance Redressal Authority toredress grievances related to resettle-ment sites where amenities are so lack-ing as to render them uninhabitable.This was reported by survey teams fromIIT Mumbai and the Maulana AzadNational Institute of Technology(MANIT), Bhopal after visiting the sub-mergence areas. These reports are partof the Jha Commission Report.

Accusing the Madhya Pradeshgovernment of shirking its dutyto ensure the rehabilitation of

PAFs, Patkar says the oustees , whoseentitlement to land was not ensured,were either sent to Gujarat or wereallotted absolutely uncultivable land foryears. This was a clear violation of theNarmada Water Disputes TribunalAward as well as the Supreme Courtjudgments.

Hailing this order, Patkar says it hasdemolished the false claims of theMadhya Pradesh government thateveryone had been rehabilitated andnothing remained to be done. “I amhappy with the order but I think thecourt should have covered more familiesfor compensation as all the affectedfamilies would have benefitted then,” she said.

She also stated that the number ofthe affected who are yet to receive landand have not accepted cash payments ismuch higher than the government’s fig-ure. “We will continue to present ourcase and will also fight to take the bene-fit as per the judgment for many otherswho deserve hike in compensation,” she added.

Patkar has challenged the MadhyaPradesh government to prove that themore than 40,000 families who are stillin the submergence area have beenrehabilitated, and all social-culturalmonuments and amenities from theoriginal villages have been shifted to thenewly constructed houses at the rehabil-

itation sites. Until full rehabilitation isguaranteed, she says, she will not let thegovernment forcefully evict people by July 31.

Meanwhile, the Gujarat governmenthas hailed the ruling and assured that itwill pay `400 crore to Madhya Pradeshfor disbursement at the earliest. GujaratChief Minister Vijay Rupani called theapex court’s judgment “historic” anddelivered with the larger interests of the people of his state kept in mind,according to an official statement inAhmedabad.

Deputy Chief Minister Nitin Pateladded: “This judgment has paved theway to expedite the work on the dam.Once filled to the brim, this dam willprovide water to lakhs of farmers andcitizens of Gujarat.”

Narmada Valley DevelopmentAuthority Chairman RakeshSahni, who represents Madhya

Pradesh in SSP-related matters, saysthat, although he has yet to go thoughthe fine print of the judgment, the state


Gujarat Chief Minister VijayRupani called the apex court’s

judgment “historic” and deliveredwith the larger interests of the

people of his state kept in mind,according to an official statement

in Ahmedabad.

government is bound to honour it. “Wewill start implementation of the order assoon as the Gujarat government paysthe compensation amount to theMadhya Pradesh government,” he said.

This rare concurrence over the courtorder among the affected parties sug-gests an end to the legal dispute on thecompensation to the oustees. However,the Gujarat government’s decision in2014 to raise the dam’s height is likely toprompt further judicial interventionin future. A panel of four retiredjudges— Justice VD Gyani (MP), JusticePC Jain (Rajasthan), Justice Nag MohanDas (Karnataka) and Justice NK Mody(MP) —called the “Independent People’sTribunal on SSP”, visited the affectedarea of the Narmada valley in Septem-ber 2015. It alleged gross violation ofthe Narmada Water Disputes TribunalAward and Supreme Court judgments.

The visit occurred in the backdrop ofthe controversy over the NarmadaControl Authority (NCA) decision toallow the Gujarat government to raisethe height of the Sardar Sarovar dam inthat state from 121.92 metres to 138.62metres by installing gates on it. TheMadhya Pradesh High Court laterstayed the operation of the order, whichcame less than a month after theNarendra Modi government’s ascensionin May 2014.

The four-member panel said theNCA’s permission to increase the damheight might be legally untenable. Thejudges claimed sufficient evidence thatrehabilitation and resettlement of peo-ple already affected by the 121.92-metreheight was nowhere close to complete.At least 33 villages in Maharashtra and193 villages and a town (Dharampuri) inMP were yet to be completely rehabili-tated, they said.

Patkar corroborates this. “Over 192villages and a township will come undersubmergence if the dam gates areclosed. Of these, 126 villages are denselypopulated,” she says. So, though theNBA’s legal battle for compensationmight have ended, the one for rehabili-tation will soldier on.

States/ Madhya Pradesh / Narmada Bachao Andolan

SSOCIATED JournalsLimited (AJL), whichpublishes the NationalHerald, is finding itselfin the dock over the con-troversial allotment of

prime land to the organisation inPanchkula. The organisation, associatedwith the Congress, has moved thePunjab and Haryana High Court alleg-ing a “witch hunt” against it by the BJPruled Haryana government.

AJL, founded by former Prime

Minister Jawaharlal Nehru and ownedby the Congress, was allotted the plot of land way back in 1982 by the thenHaryana Chief Minister Bhajan Lal.However, it is the re-allotment of theland, after it was cancelled for non-payment of dues in 1996, that is now a matter of investigation. The re-allot-ment of the 3,360 square metre plot was done after waving all rules in 2005by the then chief minister BhupinderSingh Hooda.

Moti Lal Vora, chairman of AJL and

A

The Congress-backed newspaper, National Herald, could embarrass the party over allocation of prime land in Panchkula in record time by the Hooda government By Vipin Pubby

The Paper Trail

TROUBLED LEGACYHerald House in Delhi. The

paper finds itself in legal trouble in Panchkula

Anil Shakya

Controversy/ Herald Case


former union minister, has moved theHigh Court alleging “witch hunting” by the Enforcement Directorate (ED)through its investigation into the con-troversial re-allotment of land to theAJL. Vora has said in his petition thatthe ED was not providing it the Enfor-cement Case Investigation Report(ECIR) on the basis of which the EDwas conducting its probe.

The ECIR, registered by theChandigarh office of the ED on July 15last year, was based on an FIR regis-tered by the Haryana Vigilance Bureauon May 5 last year regarding allegationsof cheating and corruption againstHooda and others for re-allotting theplot of land to AJL. Subsequently theHaryana government had handed overthe case to the Central Bureau ofInvestigation (CBI). The ED had startedinquiries evidently to look into anymoney laundering involved in the re-allotment of the plot.

WITCH HUNTHaryana Education Minister Ram BilasSharma has pointed out that the marketprice of the land, when it was re-allottedin 2005 was `23 crore but it was givento AJL for merely `59 lakh. He alsopointed out that the entire process, fromallotment to mutation, was completed inone single day at a breakneck speed.

Vora, who moved the Punjab andHaryana High Court against the EDnotices, said the agency was unnecessar-ily harassing the organisation by show-ing documents on the basis of which ithad started investigations. ED, its replyon February 8, 2017, denied the allega-tions and said that the ECIR demandedby Vora was not a “public document.” It

argued that the petitionerwas aware of the allegationsin the FIR on the basis ofwhich the ECIR was regis-tered. It also claimed thatVora was not supplying thedocuments sought by the EDand that he was hamperingthe investigations. Vora hadrefused to appear before theagency despite three sum-mons, the ED said.

The High Court hasadjourned the case for thenext hearing on March 2.

UNDER A CLOUDHooda signed the file barelya few months into his firsttenure as the chief ministeron August 28, 2005. It wasonly a few days after the thenLegal Remembrancer, thesenior most law officer whogives legal advice to the gov-ernment, had stated on thefile that the revision petitionof the owners against thecancellation of the plot hadbeen dismissed and the“order of resumption (of the plot) hasattained finality.”

He had written that there was noquestion of “re-allotment or restora-tion of the plot to the allottee” given the circumstances.

Hooda , however, chose to disregardthe advice and wrote on the file thatsince the allottee has requested andexplained circumstances due to whichthe construction could not be started onthe plot, it was a fit case for grant of fur-ther extension in time for construction.

He emphasised that the “AJL is arenowned organisation founded byPundit Jawaharlal Nehru” and that pub-lication of the newspaper “would add yetanother feature to the prestigious townof Panchkula”. The building was given acompletion certificate, interestingly, justtwo months before the assembly elec-tions in which Hooda led the Congressto its defeat in 2015.

It was no coincidence that all thepaperwork regarding the issue of com-pletion certificate was done on a singleday, something highly unusual in gov-ernment offices.

While the issue is before the HighCourt, Hooda is also facing inquiriesinto several Change of Land Use (CLU)cases in which he allowed change ofland use from agriculture to commercialor residential which shot up the price ofthe land. These also include the CLUpermission granted to Robert Vadra’sSkylight Hospitality Company whichsold prime land to the DLF Group.Besides, a case of allotment of 14 indus-trial plots to persons associated withhim is also under the scanner.

Hooda is likely to remain busyanswering uncomfortable questions asthe state Chief Minister Manohar LalKhattar has vowed to get all such con-troversial decisions examined.

Moti Lal Vora, chairman of AJL, hasmoved the High Courtalleging “witch hunt-ing” by theEnforcementDirectorate. He said in his petition that the ED was not providingthe Enforcement CaseInvestigation Report on the basis of which it was conducting its probe.

Bhupinder SinghHooda, then chief minister ofHaryana, gave the completion certificateagainst the advice of the LegalRemembrancer andsaid the publication ofthe newspaper “wouldadd yet another featureto the prestigious townof Panchkula.”

Associated Journals Limited,associated with the Congress,

has moved the Punjab andHaryana High Court alleging a“witch hunt” against it by the

BJP-ruled Haryana Government.

Controversy/ Herald Case

48 February 27, 2017 | INDIA LEGAL | February 27, 2017 49

Demonitisation has spawned its imi-tators in the media. The editorialstaff at The Hindustan Times are a

nervous lot these days, wondering if theybe demonitised the Telegraph way. TheKoltatta newspaper axed 700 people at onego, and HT has so far shut down five of itseditions and its 150 staffers have had to go.The official reason given was that the paperis reorienting itself for a major digital push,and trimming the editorial fat was part of

the process. Thesurprise cuts atHT even sparkedrumours that itwas up for sale!There are how-ever, some dra-matic changesin the offing,being spearheaded by editor Bobby Ghosh,who was hired from the US where he waswith Time magazine. Veterans at HT arenow wondering where the axe will fall next.

Media Watch

The arrest of the editor of DainikJagran’s website for publishingresults of an exit poll after

the first round of voting in UP—apractice banned by the ElectionCommission—was inevitable.The EC has been extremelystrict about enforcing the ruleand all media houses avoid

publication, even if they have conductedexit polls, till the voting is over. For DainikJagran, the largest read Hindi newspaper inthe country, to publish results of its exit poll

on its website seemed foolhardy.Perhaps the results give a hint—the

poll showed a clear lead for theBJP. The paper’s owners, theGupta family, have openly sup-ported Narendra Modi and theNDA in their publications.

Breaking the Ban

At a time when downsizing is the newmantra in media organisations, thestaffers at Times Now are still a val-

ued lot. Reason: there are fears that theymay be poached upon by head huntersfrom Arnab Goswami’s yet to be launchedchannel, Republic TV. According to sources,at the last count at least a dozen TimesNow staffers have agreed to shift their alle-giance to Arnab, their ex-boss. To ensure

that the staffers who quit do not join thenew channel the Times management hasmade it mandatory for those who resign tosign a “non-compete” clause. It reads: “Youacknowledge and expressly undertake notto work with any competing businessincluding Television, Publishing, Telecom,Radio, Internet, Magazine, Multi-mediaCompany or new media engaged in similarservices for at least a period of one year,from the date of your leaving the services ofthe Company, without prior written consentof the Company.” There is also the buzzthat Times Now staffers may be declared a“privileged class” and be showered withsalary hikes and perks.

Meanwhile, news filtering out fromRepublic TV is that the channel has still notsorted out its teething problems. In fact, thefeedback is that Rajeev Chandrasekhar, theRajya Sabha MP who is backing the proj-ect, has been approaching consultants whocan set right the backroom operations sothat Arnab can get his act going on March11—the day the results of the ongoingassembly elections start rolling in.

The Tamil news chan-nel PuthiyaThalaimurai recently

scored another first. It isperhaps the only newsorganisation in the southernstate to employ the use of adrone to provide its viewersan aerial view of the GoldenBay Resort outside Chennaiwhere 120 AIADMK MLAswere allegedly kept under“house arrest” by SasikalaNatarjan, now arrested her-self. The drone bravelynegotiated stones beingthrown at it by angryAIADMK supporters to filmthe resort. But other thanproviding postcard imagesof the hotel surrounded by alagoon on three sides, theairborne camera failed toprovide any political insightor capture the mood amongthe AIADMK MLAs in captiv-ity. Other scoop hungry jour-nalists tried to force theirentry into the resort by tak-ing the sea route to theresort, but were sent backby Sasikala’s men whoguarded the resort 24/7.

Aerial Scoop

— Illustrations: UdayShankar

Privileged Class

Digital Demon

THE season of auctions is uponus. The hammer will come downon the annual IPL auction in

Mumbai. Meanwhile, there is no ceilingon how seats and voters are being auc-tioned in the states going to the polls.Here are some items that would makean auctioneer’s day.

Encyclopedia of Tamil Names: Could fetch aqueen’s ransom outside south India,where people are getting frustrat-ed trying to pronounce the namesof possible candidates for ChiefMinister. Amma and Chinnammawere fine but now we have OPaneerselvam (contracted to OPSfor convenience of TV anchorsand others), and EdappadiPalaniswami. There is also KASengottaiyan who was made theAIADMK’s presidium chairmanafter the previous one, EMadhusoodanan, switched sides.We also have SThirunavukkarasar, Tamil NaduCongress president. There couldbe more tongue twisting beforeswearing at is replaced by swear-ing in, so an encyclopedia ofnames would fetch a hefty price,maybe even qualify as a disproportion-ate asset.

Modi’s Speechwriter: Whoever he or sheis, will fetch top dollar (the demonitisa-tion effect) at any auction since theone-liners are quite priceless. Therewas the classic one about having a bathwhile wearing a raincoat, the jibe atArvind Kejriwal (‘AK-49’), his favouriteopening, ‘Mitron,’ is still trending whilethe jibes at Rahul and Sonia have atouch of Machiavellian intensity. Thebiggest asset the speechwriter has isthe ability to have his speechmakerassume credit for anything positive,

from a record breaking rocket to lower-ing the price of stents. That is a raretalent and definitely auction-worthy.

Sasikala’s Cell Number: Was the most usedand wanted number during the hecticdays when she made her bid for thechief minister’s chair and Tamil NaduMLAs and MPs were all on her mobilephone’s speaker phone, including theSpeaker, as part of the power play.

Now, of course, anyone asking for hercell number will be directed toParappana Agrahara Central Jail inBangalore where the cellphone hasbeen replaced by a cellmate. From allaccounts, she is still calling the shots,so her new cell number could beas valuable.

Rahul Gandhi’s torn Kurta: These state elec-tions have produced some memorableimages worthy of preserving for poster-ity, or putting on the auctioneer’s block.The Mulayam Yadav clan’s fluctuatingfamily fortunes provided some earlierbut once the die was cast, and the tie-

up announced, it was Rahul Gandhi’storn kurta which became a symbol ofthe fractious nature of this electioncampaign. His quip about a suit-bootsarkar was in sharp contrast to the wayhe flaunted his ripped kurta like abadge of honour. It could fetch a“handy” price at auction.

An Infosys Golden Parachute: Everyonewants one of those, arguably the

world’s most rewarding way of say-ing goodbye, or even “have a goodday”, according to some critics. Infosys is usually in thenews for how much money itmakes, now it’s all about howmuch money it pays. The referenceis to the golden handshake to itsformer CEO and another senioremployee, and the humungous payraise for its current CEO, whichraised quite a stink. Nonetheless,the Infosys severance package stillremains the Gold Standard—liter-ally—for the IT industry, far morevaluable in auction terms, than anH1B visa.

Virat Kohli’s Anything: Forget IT orpolitics, India’s most valuable asset

will always emerge on the cricket field.Witness a certain Sachin Tendulkarwith his Ferraris and BMW’s and abank balance that would be the envy ofmany global CEOs. Now there is Virat,a worthy successor and the newSuperstar of Indian cricket, turningeverything he touches into gold. Put upa bat, a glove, a note from Anushka, anautograph or a scoresheet, and it willbe scrapped over by one billion fans.Move aside Usain Bolt, this is one hotdude, destined to be labelled GOAT(Greatest Of All Time), althoughIndian cricket crazies refer to it as GOD.

Going, Going Gone

Satire/Dilip Bobb


UdayShankar

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RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16

india legal 27 february 2017

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