India Legal 11 February 2019

NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
February11,2019
Rupinder Suri:
Bar Council debate
Brexit: A State
of Emergency?
TheInsolvencyandBankruptcyCodetodealwiththeNPAcrisiswilltiltthepower
awayfromdebtorsbyforcingthemtoselltheirassets
SqueezingtheDefaulters

UDGET 2019 will make headlines for a
couple of weeks because of unprece-
dented tax sops to middle class wage
earners and related election-eve gifts
such as direct subsidies to poorer farm-
ers, but will it improve the Indian economy in the
long run? Can it compensate for the bashing that
the nation’s overall commercial, agricultural and
business welfare taken from hastily conceived and
ham-handedly imposed measures such as demon-
etisation and GST?
Actually, the real story last week—even though
temporarily eclipsed by the good-feel budget—was
the government’s clumsy and undemocratic
attempt to suppress the real data showing the true
state of the economy: unemployment figures. They
were shocking beyond belief. Instead of having
created an extra four crore jobs as the government
had promised in 2014, it wound up raising the
unemployment figure to over six percent—the
worst in 45 years in 2017-2018. The labour force
participation rate too, has plummeted to a
momentous low of 37 percent.
Small wonder then that the ruling party was
trying to hide this figure from the public by refus-
ing to release the report prepared by NSSO, caus-
ing two top statisticians of this prestigious and
politically neutral agency to resign in protest. The
Centre for Monitoring Indian Economy (CMIE)
had earlier cited similar figures. Fudging political-
ly unpalatable figures—as this government has
repeatedly done—such as GDP growth, RBI cri-
tiques, NPA realities, downturn in industrial pro-
duction—is ultimately self-destructive. Running
away from harsh economic realities not only dis-
torts the country’s participation in the global
economy but also deters the initiation of remedial
fiscal, monetary and developmental policies.
When you refuse to recognise the existence of a
problem, you cannot possibly fix it. And the
Indian economy which was zipping along at a
robust growth rate and creating jobs prior to
2014-2015 has undeniably hit a brick wall. The
government, even in the face of reports from its
own officials and the central bank, has refused to
recognise that demonetisation and the disastrous
implementation of GST were catastrophic for
farmers and the unorganised sector.
Subsidies and tax relief are band aid remedies
which skirt the issue of basic structural reforms
which this government has stubbornly refused to
undertake. The evidence has been staring it in its
face. There were ground-level, grassroots warn-
ings aplenty. The devastating NSSO unemploy-
ment figures prove that the most recent drubbing
received by the BJP in the heartland states of
Madhya Pradesh, Rajasthan and Chhattisgarh was
no accident. It was a groundswell rejection of the
government’s economic policies and refusal to
atone for the sin of demonetisation. But the gov-
ernment remains in denial.
Only a few months back, countless thousands
of farmers converged on Delhi from all across
the country demanding a joint session of
Parliament to acknowledge the ballooning agrari-
an catastrophe, the implementation of the MS
Swaminathan Commission report, increased mini-
mum support prices and passing of the Farmers’
Freedom from Indebtedness Bill, 2018, and
Farmers’ Right to Guaranteed Remunerative
Minimum Support Prices for Agricultural
Commodities Bill, 2018. These bills were tabled in
the Lok Sabha in August by Hatkanangale MP
Raju Shetti, the leader of the Swabhimani Paksha,
an independent farmers’ political party in
Maharashtra. The umbrella organisation for the
farmers’ rally is the All India Kisan Sangharsh
Coordination Committee, a union of roughly 200
farmer groups.
A similar, unprecedented farmers’ march took
place earlier last year in Maharashtra when they
trekked to Mumbai to demonstrate their growing
economic misery. Couldn’t the government sense
that a massive crisis was at hand and address it
head-on instead of talking about bullet trains and
sea planes and “collusion with Pakistan”? Shortly
afterwards, in June 2018, the BJP received a polit-
ical drubbing in the bypolls across India.
ECONOMIC FOLLIES
Inderjit Badhwar
Letter from the Editor
B
Fudgingpolitically
unpalatable
figures—asthe
Modigovernment
hasrepeatedly
done—suchasGDP
growth,RBI
critiques,NPA
realities,downturn
inindustrialproduc-
tion—isultimately
self-destructive.
Runningawayfrom
harsheconomic
realitiesnotonly
distortsthe
country’sparticipa-
tionintheglobal
economybutalso
deterstheinitiation
ofremedialfiscal,
monetaryanddevel-
opmentalpolicies.
| INDIA LEGAL | February 11, 2019 3

A day after the results poured in, The Indian Express
carried two headlines on its front page: “Opposition Parties
Take 11 of 14 Assembly and Lok Sabha Seats”. Side by side,
it ran a feel-good headline for the ruling party: “Good
Rabi Crop, Uptick in Factory Output Lift GDP up to
7.7 Per Cent”.
It made no sense whatsoever. How could the economy
be growing at about the fastest rate in the world while the
government receives a simultaneous thrashing at the hands
of voters in what could be a prelude to the 2019 general
elections? In Kairana, UP, which had become the riot-torn
crucible for vote-catching Hindu-Muslim politics following
bloody communal clashes and a religion-based exodus of
population that swept the BJP and its majoritarian sabre-
rattlers into power, “Jats and Muslims stepped over riot
faultlines to vote together”, the Express said.
J
ust before the recent by-elections in the five states
(where the BJP lost three and failed in the other two),
I wrote: “Actually, this is an example of why statistics
should be damned, and political parties should be careful of
using ‘surging’ GDP and related feel-good econometrics as
vote-catching electoral propaganda. It just doesn’t work.
And history seems to be repeating itself. Even as assembly
elections are nearing completion in five crucial states and
farmers are converging on Delhi, the ruling party is playing
roulette with GDP figures, re-naming cities which have
Muslim-sounding names, erecting statues, playing dirty pol-
itics with the CBI and trying to revive passions over build-
ing a Ram temple in Ayodhya.”
When a voter is unemployed, his pockets empty, jobs
decreasing, diesel and petrol prices skyrocketing, mandis in
distress, prices soaring, GST raising the cost of anything you
touch, markets shrinking and uncountable jobs sacrificed at
the altar of economic adventurism like demonetisation
which failed to distinguish between a “black economy” and
a cash-based economy, he’s going to punch you right in the
nose when you tell him you stand for the farmer and the
working man.
They are not “playing victim” as some would have us
believe. According to Sujan Hajra, chief economist at
Anand Rathi, a financial analysis firm, India has one of the
world’s highest food spoilage rates; one of the world’s lowest
per capita productivities and farmer incomes; poor rural
roads affecting timely supply of inputs and transfer of out-
puts; inadequate irrigation systems; poor seed quality; inef-
ficient farming practices; harvest spoilage causing over 30
percent of wastage and lack of organised retail and compet-
ing buyers.
Their grievances cut across identity lines—no returns on
investment, loans they couldn’t repay, inadequate support
prices, unrequited money from the sales of their cane, sui-
cides and their kids dying in hospitals because of lack
of oxygen.
Farmers are part of India’s large unorganised sector.
(There is abysmally low productivity in the farm quarter—
50 percent workforce and just 16 percent GDP.) As pro-
fessor Arun Kumar, one of India’s best known international
economists, notes, this (total unorganised sector) is 93 per-
cent of total employment and 45 percent of total output.
Data for this sector is not available in the routine because it
is dispersed across the length and breadth of the country in
tens of millions of small and cottage units which do not
report their data to any agency. The largest component of
the unorganised sector is agriculture, constituting 45 per-
cent of the workforce and 14 percent of the total output of
the economy. Data for agriculture is collected for each of the
growing seasons and becomes available with a short time
lag, but it is not collected for each quarter.
The non-agriculture part of the unorganised sector con-
stitutes 48 percent of the workforce and 31 percent of the
total output. It is the data for this part that is not available
for some years, Prof Kumar explains. One of the top
demands of the farmers who marched to Parliament last
week is implementation of the Swaminathan report. As one
of the organisers told Scroll in a recent interview: “If they
{the BJP} lose elections in all five states, then they will sure-
ly implement it,” (referring to Maharashtra’s brother farm-
ers in UP who had similar grievances about returns on
investment, loans they couldn’t pay back, inadequate sup-
port prices, unrequited money from the sales of their cane,
suicides, their kids dying in hospitals because of lack of oxy-
gen… but their Executive Yogi was off in Karnataka preach-
ing Hinduism-in-danger and down-with-Jinnah-portraits.
Immediately after Prime Minister Narendra Modi
announced the demonetisation of `500 and `1,000 notes
on November 8, 2016, I carried an exclusive interview with
Prof Arun Kumar, considered one of the world’s leading
Letter from the Editor
4 February 11, 2019
SKIRTING THE TRUTH
Vice-Chairman NITI Aayog Dr Rajiv Kumar addressing a press conference
in New Delhi on the job data of National Sample Survey Office
PIB

authorities on the impact and generation of black money.
Kumar predicted that not only was demonetisation the
wrong way of tackling tax evasion and recovering wealth,
but also that the move would have adverse political conse-
quences for Modi because the poor would be the worst suf-
ferers. He called it a “foolish” step. The India Legal story
went viral. It also generated a chorus of trolls against critics
of the Modi initiative who were labelled as supporters of tax
evaders and money launderers.
Immediate political results of the psychodrama seemed
to favour Modi, specially in the Uttar Pradesh state elec-
tions. Initially, it was a brilliant political move in which,
notwithstanding their suffering, the afflicted saw their tor-
ment as a temporary hardship inflicted on them by a Robin
Hood figure who was punishing the rich to reward the
poor, even if it meant waiting a while.
Initially, Modi won the throw of the dice. The courts did
not interfere. Political opposition was virtually nonexistent.
His party’s obvious preference for social and cultural trans-
formation over economic reform and modernisation has
paid political dividends. But for how long? His constituency
is not very different from Indians who did not support him.
The expectation of enhanced prosperity—the acche din
pledge—still rings in all ears. If you create a good slogan,
you could well wind up being hoisted on your own petard.
Catchy slogans, as all spin doctors will tell you, are a dou-
ble-edged sword. People don’t forget them.
A
nd the early chickens seem to be coming home to
roost. The propaganda benefits of notebandi have
lived their shelf life. The biggest dividend was UP.
What counts now, as the euphoria wanes, following
Karnataka, the crystallisation of a viable political opposition
and the recent nationwide bypolls, is the ground reality and
the longer-term economic consequences. Manufacturing
and construction have slumped. Private investments in new
projects are at a standstill. While gross domestic product
(GDP) growth was 6.1 percent, gross value added (GVA)
growth—a metric that more economists now favour as it
excludes indirect tax collection—slowed even more sharply
in the fourth quarter to 5.6 percent, compared to 6.7 per-
cent in the third quarter, says another recent study.
These figures have not been conjured up by propagan-
dists. These are the latest figures from no less a source than
the Central Statistics Office which the prime minister and
his team can scarcely afford to ignore.
And will Prof Arun Kumar have the last laugh on
demonetisation? He insists that demonetisation has not
only not dented the black economy, but has damaged the
white economy, especially the unorganised sectors. “Forget
about the loss of revenue from exporting buffalo meat after
government’s ban on procuring animals from market place
for slaughter, the real impact will be on India’s poorest
farmers and the economy of livestock which is worth more
than `3 lakh crore. It is all set to kill an economy that
India’s small and marginal farmers switched over to as
adaptation to uncertain monsoon and dwindling income
from regular crops.”
Arun Kumar bemoans the fact that “political parties are
now bereft of ideology or principles—the aim is to get to
power to serve the vested interests who fund them. Busi-
nessmen are scared of the government and do not wish to
be seen as opposed to it. With the changes introduced in the
recent Budget, the fear of a raid raj has only grown. The
media has been adversely impacted”.
The critical decision Modi will have to make—and make
very soon—is how far can he stretch the Cultural Raj at the
expense of real economic growth in order to avoid the possi-
bility of a popular backlash if acche din remains a chimera.
And herein lies a lesson for Modi’s opponents on the
Right as well as the Left not to exult in haste in the celebra-
tion of the end of the Modi honeymoon. It is far from over.
But there is a lot he has not done. He has NOT: cleaned up
the Ganga; restored eight percent GDP growth; created
three crore jobs as promised (instead unemployment is
soaring in a phenomenon called “jobless growth”); intro-
duced judicial reform; ended the rape and subjugation of
women; rebuilt our cities or renewed urban India; acceler-
ated farm production; introduced meaningful tax reform;
introduced disinvestment plans; revamped Air India; cut
down the bureaucracy; shut down terrorist camps in
Pakistan, attracted make-in-India investment.
Modi has called his latest budget a “trailer”. It will
remain one if the main feature flops at the box office.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
AGRARIAN CATASTROPHE
Farmers at the long march organised by the All Indian Kisan Sabha at
Azad Maidan in Mumbai in March 2018
UNI

ContentsVOLUME XII ISSUE13
FEBRUARY11,2019
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6 February 11, 2019
14Creditors First
The Insolvency and Bankruptcy Code is an excellent step in the development of modern bankrupt-
cy laws because it gives greater power to creditors than debtors, forcing the latter to sell assets
LEAD
20Poll Vault
As election season begins, the
centre has sought permission from
the apex court to transfer land near
Ayodhya’s disputed site to a trust
leading the campaign for
construction of the Ram Mandir
18Fabricated Guilt
In a recent case, the Supreme Court acquitted three persons who had been convicted of
multiple murders and sentenced to death, pointing out major loopholes in the police case
SUPREMECOURT

Turbulent Waters REGULARS
Followuson
Facebook.com/indialegalmedia
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design and Illustration:
ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
Durbar.............................12
Media Watch ..................49
46
STATES
Chaotic
Times
The hysteria over “no-deal”
Brexit has reached fever
pitch in Britain.
Government officials are
considering declaring a
state of emergency if the
situation so demands
38
Courting Caste 44
The Karnataka cabinet has cleared a bill to continue implementing reservation in
promotions for SCs/STs even though the matter is pending in the apex court
GLOBALTRENDS
Roar Ends in Whimper
Feisty House speaker Nancy Pelosi resisted the charms of President Donald Trump
and he has caved in over his demand for a $5.7-bn partial wall with Mexico
COLUMN
40
Room for More
Despite all that has been done for the transgender community by
Tamil Nadu, the Madras High Court has asked whether it can
reserve government jobs for them
26
COURTS
All is Not Well
The Comptroller and
Auditor General’s report on
the National Rural Health
Mission in Chhattisgarh
paints a bleak picture of
healthcare in the state
32
FOCUS
Commendable Move
With the creation of a national bench of the
GST Appellate Tribunal, indirect tax
disputes are likely to be settled, making
things easier for taxpayers and taxmen
36
COMMERCE
In an attempt to further boost tourism, the
Gujarat government has cleared two ponds
near the Sardar Sarovar Dam of crocodiles
so that seaplane services can take off
22Don’t Pass the Buck
The BCI’s plea for an annual budget for lawyers must be backed by
a detailed study on the needs of advocates and the legal system, says
Rupinder Suri, former president, Supreme Court Bar Association
MYSPACE
Vendetta Wars
The recent CBI raids
on Samajwadi Party
politicians and
officials, including
former UP Chief
Minister Akhilesh
Yadav, in multiple
cases point towards
pre-poll manoeuvres
to hobble them
28
PROBE

8 February 11, 2019
“
RINGSIDE
“We are unique in
the world that we are
enriched by so many
cultures, religions.
Now they want to
squash us into one
culture. So it is a
dangerous time. We
do not want to lose
our richness....”
—Author Nayantara
Sahgal at an event
organised by Marathi
writers and artistes
in Mumbai
“I continue to have
faith and belief in my
conduct as a profes-
sional and I am cer-
tain that truth will
ultimately prevail.”
—Former MD & CEO
ICICI bank Chanda
Kochhar after being
sacked with
retrospective effect
“I have been a Parlia-
mentarian seven
times, but I don’t take
a single anna of MP’s
pension. I don’t even
take MLA allowance.
I paint because I am
passionate about it,
not because I want to
make a living....”
—West Bengal CM
Mamata Banerjee on
Amit Shah’s comment
that she sells her pain-
tings to ponzi firm
owners in the state
“It will not affect me,
but Congress lead-
ers....If they want to
continue (with Sidd-
aramaiah) I’m ready
to step down, they
must think about all
these things... they
are crossing a line.”
—Karnataka CM HD
Kumaraswamy, after
a Congress MLA said
that former CM Sidd-
aramaiah should
again take charge
“If you love your chil-
dren, vote for those
who are working for
your children. And
if you don’t love your
children, vote for
Modiji… You can
either do deshbhakti
or Modibhakti. It’s
not possible to do
both.”
—Delhi CM Arvind
Kejriwal, addressing
school students and
parents
“I’m trying to finance
a channel, to set up a
channel called
Harvest...(but) this
government doesn’t
want to give us a
licence. We got a
licence ultimately.
Then this afternoon,
suddenly it was shut
down…I’m talking
about how dissent is
stifled....”
—Congress leader
Kapil Sibal on his
fledgling TV channel
“People like political
leaders who show
them dreams. But if
those dreams are not
fulfilled, the people
thrash these leaders.”
—Union minister and
senior BJP leader
Nitin Gadkari, at the
launch of a BJP-affili-
ated transport outfit
in Mumbai
“Nobody says don’t earn. You are joining profes-
sion to earn. Unlike any business, what is the
most admired about this profession is that you
can earn a lot by maintaining moral and ethical
values, which in some of the other professions,
maybe in some businesses, have to be sacrificed.”
—Supreme Court judge Justice AK Sikri, speaking
at the convocation of Gujarat National Law University,
Gandhinagar

Courts
—Compiled by India Legal Team
SC takes stock of
detention centres
The Supreme Court admitted a petition
challenging the compulsory recitation of
Sanskrit and Hindi hymns during the morn-
ing assembly sessions of 1,125 Kendriya
Vidyalayas (KVs) spread across various
states in the country. The petition has been
put up for hearing before a five-judge con-
stitution bench of the apex court. It specifi-
cally challenges the daily
singing of the prayer “Asato
Ma Sadgamaya” in KVs. It
has been filed by Veenayak
Shah, a lawyer belonging to
Madhya Pradesh, who
claimed that his children
have schooled in a KV. The
petition urged the Supreme
Court to ask KVs to “dis-
continue any form of prayer
from the morning assembly or otherwise”.
Shah argued that making children begin
their day by reciting prayers impedes incul-
cation of a scientific temperament in them.
He further contended that this practice vio-
lates the fundamental rights guaranteed
under Articles 28(1) and 19 of the
Constitution.
The Nani Palkhivala birth centenary
celebrations began on January 16
in New Delhi in a big way. To mark
the occasion, a book, Bemisal
Palkhivala: Ek Prerna Shroat, has
been released. The book, the first
such work in Hindi, has been author-
ed by Maj Gen Nilendra Kumar (retd),
who was Director, Amity Law School
(2009-16). The 116-page book, with
over 50 pictures, carries a sketch of
Palkhivala’s life and the fine qualities
that led to his success in advocacy. It
has an interesting collection of his
quotes. The foreword of the book is
by TN Chaturvedi, former governor of
Karnataka and Kerala and member of
the Rajya Sabha. It has been pub-
lished by Newgen Digital Works.
100 years of Nani
Palkhivala’s birth
Constitution bench for KV plea
The Supreme Court agreed to hear a joint
petition of the centre and an organisa-
tion working for the Bhopal gas tragedy
victims for a five-fold increase in the com-
pensation awarded to them. The petition
was filed by Gas Peedit Mahila Udyog
Sangathan convener Abdul Jabbar in 2004.
The petitioners have sought `7,413 crore
from Union Carbide Corporation (US) for
the MIC leak that killed 5,000 and maimed
over five lakh people in December 1984. In
2010, the UPA government supported the
petition and the Court clubbed the two peti-
tions. After a gap of nine years, the apex
court has decided to take up the petition
for hearing. The hearing is likely to be held
sometime in April.
Bhopal gas victims
may get second lease
The Supreme Court sought detailed
information from the centre about
detention centres in Assam. A bench
comprising CJI Ranjan Gogoi and
Justice Sanjeev Khanna was hearing
a petition filed by activist Harsh
Mazumdar on the condition of deten-
tion centres in Assam and their
inmates. The apex court asked the
centre to provide the exact number of
detention centres and the number of
foreigners living in each of the cen-
tres. The bench also sought informa-
tion about the period of detention of
detainees and the status of their
cases. The bench asked the centre to
submit all the details within three
weeks and posted the matter for fur-
ther hearing on February 19.
The Supreme Court allowed
Karti Chidambaram, son of
senior Congress leader P
Chidambaram, to travel abroad
but only after depositing `10
crore with its registry. The
apex court asked Karti to
appear before the Enforcement
Directorate on March 5, 6, 7
and 12 for questioning in con-
nection with the INX Media and
Aircel Maxis cases, saying,
“Don’t play around with the
law”. “You go wherever you
want to go between February
10 and 26 but you must coop-
erate with the investigation,” a
bench led by CJI Ranjan Gogoi
said. “Please tell your client
that he will have to cooperate.
You have not cooperated. We
wanted to say a lot of things.
We are not saying them right
now,” the bench further said.
Karti Chidambaram gets SC nod to travel abroad

10 February 11, 2019
ISTHAT
Which offences can be compounded under
the Indian Penal Code (IPC), 1860?
Certain offences punishable under the IPC
can be compounded under Section 320 of
the Criminal Procedure Code (CrPC). These
include offences under Section 298 (uttering
words deliberately to insult the religious sen-
timents of a person); Section 323 (voluntari-
ly causing hurt); Section 334 (voluntarily
causing hurt on provocation); Section 447
(criminal trespass); Section 500 (defama-
tion); Section 312 (causing miscarriage to a
woman), etc, of the IPC. These offences can
be compounded by the person who was a
victim of the offence. The victim may resort
to a compromise, and the accused may be
discharged from the offence. Abetment of
these offences may be compounded in a
similar manner. Where an accused has
already been convicted and an appeal is
pending, no such compromise can be rea-
ched without the permission of the court.
Do persons deriving income from agricul-
ture need to pay income tax on it?
Persons earning money through agriculture
do not have to pay income tax, as agricul-
tural income is exempted under Section
10 (1) of the Income Tax Act, 1961. Sec-
tion 2 (1A) of the Act defines agricultural
income to include “any proceeds from
growing and sale of crops, income from
sale of seeds, rent received from a land
used for agricultural purpose, profits rec-
eived from a partner from a firm engaged
in agricultural activities”. However, by
virtue of the Finance (No. 2) Act, 2014, a
person whose agricultural income exceeds
`5,000 in the previous year, and if his
income excluding the agricultural income
exceeds the basic exemption limit, then
such persons will be required to be pay tax
on agricultural income. This is a method of
levying tax on agricultural income in an
indirect manner.
Agricultural Income is
Exempted under I-T Act
—Compiled by Sankalan Pal
Certain Criminal Offences Can Be Compounded
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What are the rules dealing with arrests and
interrogation of a female witness?
While arresting a woman, certain rules
have to be followed. Section 46 (4) of the
Criminal Procedure Code (CrPC) provides
that except in certain situations, no wom-
an can be arrested after sunset and before
sunrise. If there are exceptional conditions,
a woman police officer must obtain prior
permission from the judicial magistrate
within whose jurisdiction the offence was
committed. According to Section 51 (2),
CrPC, a woman can be searched only by a
woman police officer while maintaining
strict decency. Further, Section 160, CrPC,
permits female witnesses to record their
statements at their residence. While arrest-
ing a woman, the presence of a woman
officer is mandatory, and women must be
kept in separate lock-ups from men. Under
Section 53 (2), if a woman is required to
undergo a medical examination, it must be
done only by or under the supervision of a
female medical practitioner.
Certain Rules Apply to
Arrests of Women
?
Can a police officer refuse to perform his
duties of taking charge of a matter, helping
someone etc., by saying he is off-duty?
According to Section 22 of the Police Act,
1861, a police officer is always on duty and
may be employed as a police officer at any
time. This means that a police officer,
whether in uniform or not, cannot refuse to
help someone, or to perform any such obli-
gations as expected to be performed as an
officer to preserve law and order in society.
Section 23 of the Act enumerates the duties
of a police officer. A police officer has a duty
to try to prevent the commission of an
offence and bring offenders to justice. A
police officer may lawfully enter a gaming
shop or drinking shop without a warrant. He
is also dutybound to execute all the orders
issued to him by any competent authority.
A Police Officer is Always on Duty

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

The Republic Day parade clearly was
a massive tribute to Mahatma
Gandhi, with nearly every tableaux
dedicated to the Father of the Nation.
However, there was also one clear
irony that was writ large on the gala
event. For a party that came to power
promising a Congress-mukt Bharat,
Prime Minister Narendra Modi’s BJP
ensured that one of the lasting sym-
bols of the Congress party of yore—
the Gandhi topi—was firmly back in
vogue, if only for the day.
Though the topi draws its name
from the Mahatma, everyone recog-
nises its staunchest patron to be the
man Modi and Amit Shah love to
hate—Pandit Jawaharlal Nehru.
While the current crop of
Congress leaders seems to have
tucked the topi away, sporting it only
at events like the party’s plenary ses-
sion or national executive meets, BJP
governments—at the centre and in
most states—ensured that the caps
were on wide display on Rajpath,
bringing back memories of the Neh-
ruvian era. Among the few states that
departed from the Gandhi-themed
tableaux was Congress-ruled Punjab
which revived its Jallianwala Bagh
massacre theme to commemorate
100 years since the brutal killings.
Evidently, as Modi and Shah try
to appropriate icons like
the Mahatma and Sardar
Patel for want of even a
single founding father of
independent India among
the BJP’s own ranks, eras-
ing the Congress’s legacy
and symbolism is going to
get tougher. What more
could Rahul Gandhi want
in these testing times of
reviving the Congress’s
fortunes?
If the buzz in the corridors of 24, Akbar
Road is anything to go by, Varun Gandhi
may quit the BJP in the run-up to the
general election due in April-May, citing
the Modi government’s apathy towards
farmers and marginalised communities
as the reason. Congress insiders say
that Varun would seek re-election from
Sultanpur, adjoining the Nehru-Gandhi
family’s pocket borough of Amethi and
Rae Bareli, on a Congress ticket.
Even more interesting is the gossip
around the political machinations of
Maneka Gandhi. Her bitterness against
Sonia Gandhi is often cited as the rea-
son why the “Other Gandhis” continue
to be in the BJP.
Varun has always maintained cordial
relations with his elder cousins—Rahul
Gandhi and Priyanka Vadra. It is
believed that Varun’s homecoming is
being carefully orchestrated by
Priyanka. If things go as planned,
Varun may even get a chance to lead
the Congress in central UP while
Priyanka heads the campaign in the
eastern districts.
The delay in Varun’s departure from
the BJP is being attributed to some
stringent conditions put forth by his
mother. Maneka is willing to contest as
an independent from her stronghold of
Pilibhit provided the Congress, SP and
BSP jointly support her candidature. She
also wants an assurance that Varun will
get important responsibilities in the
Congress. Will Rahul agree and help re-
unite the Nehru-Gandhi pack?
YET ANOTHER
BOMBSHELL?
BJP’S GANDHI TOPI
While India and Israel
celebrated their 27th
year of diplomatic
relations last week,
national security cir-
cles spread the word
that Israeili PM
Benjamin (Bibi)
Netanyahu would
probably visit Delhi in
mid-February. Both
countries are prepar-
ing for elections.
Israeli National
Security Adviser Meir
Ben-Shabbat recently
visited India and met
with Prime Minister
Narendra Modi as well
as national security
chief Ajit Doval.
Israeli newspaper
Haaretz reported that
Ben-Shabbat flew on
an Air India flight from
Israel through Saudi
airspace, which is one
of the results of the
understandings
reached during
Netanyahu’s previous
visit to India where he
bonded well with the
Indian premier. Both
share right-wing views
on the “containment”
of Islamists.
Defence analysts
reveal that India is
interested in an addi-
tional security deal
with the Israeli arms
industry. During
Netanyahu’s previous
visit, a deal was made
to purchase anti-tank
Spike missiles.
According to official
data from Israel, 58
percent of Israeli arms
exports goes to Asian
and Pacific countries.
This number was
greatly influenced by a
deal between India
and Israel Aerospace
Industries for two
billion dollars.
BIBI AND NAMO
An inside track of happenings
on the national stage

Going by Mayawati and Akhilesh’s
announcement, the Opposition’s grand
alliance, at least in UP, has fallen apart
prematurely. Bua and Bhatija have
declared that their parties will contest 38
seats each. They have left two seats for
“other” parties and will support the
Congress in its family bastions of Amethi
and Rae Bareli. Rahul Gandhi too has
declared that his party will contest all
seats in UP. Priyanka Gandhi Vadra’s
political debut as the party general sec-
retary in charge of eastern UP too sig-
nals that the Congress wants to aggres-
sively reclaim lost ground in the state
which was its bastion over three
decades ago.
Many believe that the respective
stands of the BSP, SP and Congress
chiefs are mere grandstanding and that
readjustments will be made closer to the
Lok Sabha polls. Authoritative sources
say the contrary and cite two reasons.
The SP-BSP combine is likely to play
to its strength by fielding a substantial
number of Muslim, OBC, SC and ST
candidates. Had the Congress joined
the alliance, it would have had to do the
same and the BJP would have consoli-
dated the upper caste vote, riding high
on the Modi government’s Bill providing
10 percent quota for the economically
weaker sections. However, the Congress
is now free to field several upper caste
faces in UP aside from giving its usual
share of SC, ST, OBC and minority can-
didates. It hopes that the strategy will
help in a better consolidation of voters
against the BJP than a formal grand
alliance would have achieved. All its
prominent faces in the state—from Rahul
and Priyanka to Jitin Prasada, RPN
Singh, Raj Babbar, Pramod Tiwari—
belong to the forward castes anyway.
The BJP clearly should not be cele-
brating the fall of the Mahagathbandhan
just yet.
HOLD YOUR HORSESRahul Gandhi’s surprise announcement
that if voted to power at the centre later
this year, his party would ensure a
Minimum Income Guarantee (MIG) for
every poor Indian, has left the BJP
stunned and proponents of fiscal pru-
dence fuming. Gandhi’s Twitter
announcement came days ahead of
the Modi government’s presentation of
its final Union Budget, on February 1,
before the Lok Sabha polls.
There has been speculation that to
beat the huge voter dissatisfaction it
faces on account of growing unemploy-
ment, the Modi government is likely to
break with convention and announce a
full Budget instead of an interim one. A
highlight of the fiscal statement could
be declaration of a Universal Basic
Income (UBI) scheme.
By pre-empting what the
Budget may announce, Rahul
stole some of the thunder from
an obviously populist move. It
also complements Rahul’s con-
tinued diatribe against the Modi
government’s failure to tackle
unemployment and poverty.
Congress insiders say that
Rahul’s discussions with econo-
mists—including the venerable
Professor Arun Kumar who has been
scathing in his criticism of Modi’s de-
monetisation and the GST rollout on
macro, small and medium enterpris-
es—on the blueprint for an MIG have
been on for nearly six months. The
Congress manifesto and vision docu-
ment for the Lok Sabha polls is expect-
ed to have a detailed chapter on how
the MIG will be rolled out. The mani-
festo committee, chaired by P
Chidambaram, believes that a compre-
hensive MIG would be the party’s big
ticket promise and be billed as the nat-
ural corollary to the UPA-era social out-
reach scheme, the MGNREGA.
It will be interesting to see if Rahul
has sufficiently shocked the Modi gov-
ernment to hit back with a counter
punch when Piyush Goyal tables the
Union Budget.
ONE-UPMANSHIP?
The Republic Day celebrations threw
up another visual that would have left
Prime Minister Modi and his party pre-
sident, Amit Shah, seething—that of
Rahul Gandhi and Union minister Nitin
Gadkari seated together, exuding a
bonhomie rarely seen these days
between Congress and BJP leaders.
Gadkari has emerged as a sort of
Leader of Opposition within the other-
wise sycophantic cadre of the BJP that
has become as enamoured of the
Modi-Shah duo as Congress leaders
are of the Nehru-Gandhi clan. The
Gandhi-Gadkari photo-op comes at a
time when the Union minister has been
regularly taking potshots at Modi and
Shah’s style of leadership amid
rumours that he nurses ambitions of
emerging as the consensus PM candi-
date of the NDA coalition four months
from now if Modi fails to deliver a 2014-
like landslide victory for his party in the
Lok Sabha polls.
Gadkari, known now as the man the
RSS may consider as a Modi alterna-
tive, has emerged as an unwanted
conscience keeper of the prime minis-
ter and the BJP president. He has
warned against “artificial marketing”,
making tall poll promises and failing to
deliver on them, and believing that
good oratory skills alone can help win
elections. While he has said all this
without naming the person the jibes are
against, the target is obvious.
R-DAY OPTICAL
Durbar

Lead/ Insolvency and Bankruptcy Code
HE continuous entry and
exit of companies is a nat-
ural feature of free market
economies. When a pro-
ductive entity fails, there is
a cost to society, and bank-
ruptcy laws are required to protect the
contractual rights of interested parties
and to allow for the orderly liquidation
of the firm’s assets to maximise its value.
A good bankruptcy law has to bal-
ance several objectives. It has to protect
the rights of creditors and other stake-
holders—essential to the development of
stable credit markets—and prevent the
premature liquidation of viable firms—
essential to risk-taking and entrepre-
neurship that drives economic growth.
There are two kinds of bankruptcy
laws. In liquidation bankruptcies, also
known as “creditor in control” laws,
debtors must surrender their property,
which is subsequently sold, and the pro-
ceeds distributed to creditors. In return,
all debts are permanently discharged. In
reorganisation bankruptcy laws, also
referred to as “debtors in possession”
laws, debtors are allowed to keep their
T
ThoughtheIBCisawelcomestepinthedevelopmentofmodernbankruptcylaws,itgivesmore
powertocreditorsthandebtors,forcingthelattertosellassetsatdiminishedvalue
By Sanjiv Bhatia
LEFT IN THE LURCH
Homebuyers including those who bought flats
in real estate projects have been badly hit by
several builders going insolvent
Creditors’
Paradise

property, but must agree to a reorgani-
sation and repayment plan. In return,
the court provides a moratorium on
creditor claims to allow the debtor time
to reorganise and rehabilitate.
The 2015 World Bank Ease of Doing
Business Index ranked India 135th out
of 190 countries on ease of resolving
insolvency. Insolvency resolution in
India took 4.3 years on an average, com-
pared with the UK (one year), the US
(1.5 years) and South Africa (two years).
To consolidate the vast array of frag-
mented and often conflicting laws on
insolvency, the government passed the
Insolvency and Bankruptcy Code (IBC)
in May 2016. The salient feature of this
law was a paradigm shift from a “debtor
in possession” to “creditor in control”
regime. In effect, the law now gives
greater power and leverage to creditors
than debtors. There is now increased
pressure on debtors as any whiff of in-
solvency could trigger a change in cor-
porate control.
Many developed countries have shied
away from creditor-in-control laws as
they increase the risk associated with
borrowing and inhibit business owners
from borrowing. Even an otherwise
sound business can go through periods
of revenue and profit stress due to
macroeconomic and industry-specific
factors—the real estate sector in India
is a good example of this. Even if a
company’s debt is small in relation to
its market value, creditors could force
the sale of all its assets, often at dimin-
ished values.
This is especially painful for small
and medium-sized businesses where the
owner-promoters have a lot of personal
goodwill invested in the firm.
Academic studies have shown that
economic activity is affected in countries
with bankruptcy laws that increase the
risk of borrowing.
A major thrust of most bankruptcy
laws is to prevent wanton destruction of
the value of a distressed firm. Insolvency
laws in most countries differentiate
between “financially distressed” firms
and “economically distressed” firms.
A financially distressed company
may be an otherwise viable company
(producing goods and services that soci-
ety wants), but for a multitude of rea-
sons is currently unable to service its
debt. Such companies are more valuable
if their assets are kept together as a
functioning unit rather than sold off on
a piecemeal basis. The value of such a
firm can be preserved by restructuring
its debt or selling parts of it. Pushing
viable businesses into liquidation, inst-
ead of allowing for successful restruct-
uring, destroys their value and imposes
unnecessary cost on all its stakeholders.
T
he Indian Bankruptcy Code
(IBC) has been written to cure a
legacy of unscrupulous promoters
who successfully gamed a moribund
judicial system to create endless delays
and legal tangles to keep creditors at
bay. The current banking crisis is par-
tially the result of a long history of
unscrupulous borrowing. The focus of
the bankruptcy law is, therefore, on pro-
viding relief to creditors and not neces-
sarily on preserving the market value of
financially distressed companies. “The
defaulter’s paradise is lost,” noted the
Supreme Court in a recent ruling on the
constitutionality of the IBC, clearly sug-
gesting that the focus of the law was
JusticesRFNarimanandNavinSinha(right)oftheSupremeCourtnoted,“The
defaulter’sparadiseislost”inarecentrulingontheconstitutionalityoftheIBC,
clearlysuggestingthatthefocusofthelawwastoprotectcreditors(especially
financialcreditors)fromunscrupulousdefaulters.
Anil Shakya

to financial creditors over
operational creditors, citing
the fundamental right to
equality under Article 14 of
the Constitution. The
Supreme Court dismissed the
Article 14 argument, stating
that there was a difference in
the relative importance of
financial creditors because
repayment of debt allows the
capital to be re-injected into
the economy and is vital for
economic growth.
The preference given to
financial creditors is troubling, given the
judicial system’s dismal record on
enforcing contracts. Operational credi-
tors, while not direct lenders of money
to the company, provide goods on credit
and these contractual arrangements can
often be more useful to a business than
bank debt. But enforcing these unsecu-
red contracts in Indian courts is a long
and hard process which often leaves
operational creditors without remedy. It
is time for the judicial system to step up
and expedite the enforcement of con-
Lead/ Insolvency and Bankruptcy Code
to protect creditors (especially financial
creditors) from unscrupulous defaulters.
The IBC mandates the resolution of
insolvency within 180 days (extendable
by 90 days if a majority of creditors
agree) and allows creditors to initiate
the process. This bias in the IBC
towards creditor-driven insolvency reso-
lution could push companies into liqui-
dation and destroy their market value.
Insolvency resolution under the new law
relies on the vote of financial creditors
whose interest in recovering their claims
(and cutting losses) may predispose
them to sell off the company’s assets
rather than evaluate the risk of restruc-
turing it and allowing existing debtors
to continue operating it. Data from the
Insolvency and Bankruptcy Board of
India confirms this—almost 80 percent
of the cases admitted for insolvency res-
olution since the enactment of the law
have resulted in liquidation.
R
ecently, the constitutionality of
the IBC was challenged on three
grounds. A PIL was filed by
aggrieved homeowners who, as unse-
cured creditors, were left without a rem-
edy during the insolvency of several real
estate companies. They challenged the
constitutionality of the preference given
TheEssarSteelcaseshowshow
wealthtransferoccursunderbank-
ruptcylawsthatfavourcreditors.Its
majorcreditor,theSBI,caninfluence
thesaleofEssartobidderArcelor
evenifitresultsinatransferofwea-
lthfromtheminoritycreditorsand
existingshareholders,theRuias,led
byPrashantRuia(left),toArcelor.
BOLD MOVE
Minister of State for Finance and Corporate
Affairs, Arjun R Meghwal at the first Insolvency
and Bankruptcy Board meeting in 2016
UNI

The verdict will have an impact on
some significant insolvency cases such
as that of Essar Steel. The debt-laden
company was put up for sale under the
IBC, and all the lenders approved
Arcelor Mittal’s bid of `42,000 crore for
the company’s assets. Essar Group’s pro-
moters, the Ruia family, realising that
the economic value of the firm was
higher than Arcelor’s bid, have since
sought to regain control by pledging to
repay the entire amount of `54,000
crore that is owed. Under Section 12A of
the IBC, the Ruias might be able to
regain control if they can convince 90
percent of the lenders to withdraw the
insolvency petition. But Arcelor Mittal is
arguing that Section 29A of the IBC
prevents the errant promoters (Ruias)
from regaining control of the company.
The Essar Steel case is an excellent
example of the wealth transfer that
occurs in bankruptcy laws that favour
tracts. Similar to the time-bound insol-
vency resolution in the IBC, all contract
disputes must be settled in court within
180 days. It is essential to pair judicial
efficiency with a good bankruptcy law to
create an effective financial system.
Studies have shown that if enforcement
of contracts is strong, debtors and credi-
tors try to avoid risky behaviour, thereby
reducing the chances of financial dis-
tress and bankruptcy.
T
he second challenge to the IBC
was against the broad sweep of
Section 29A, which bars not just
the existing promoters but also individ-
uals or entities “related” to them from
attempting to take over the ailing com-
pany. These provisions are intended to
ensure that errant promoters do not
game the system by claiming debt relief
and then repurchasing the company (at
a lower price) through the resolution
process. The petitioners had argued that
such a blanket ban does not distinguish
between unscrupulous promoters and
those who can’t pay their debt for other
reasons (a poor economy, for example).
They argued that this provision violates
Article 14 of the Constitution by treating
“unequals as equals”. The Supreme
Court rejected the argument that
Section 29A of the IBC violates Article
14, and clarified that the definition of a
related person would mean only persons
connected with the business activity of
the insolvent company.
The third challenge was to Section
12A of the IBC which requires 90 per-
cent of the Committee of Creditors
(CoC) to approve the withdrawal of an
insolvency petition filed against a corpo-
rate debtor. It was argued that this
Section gives tremendous power to the
CoC to reject legitimate settlements
between creditors and corporate deb-
tors. The Supreme Court again ruled
against the petitioners, observing that
the figure of 90 percent is the domain of
legislative policy, and in the absence of
anything to show that it is arbitrary the
Court would not encroach upon the
domain of the legislature.
creditors. It is clear that the enterprise
value of Essar Steel exceeds `54,000
crore, but its major creditor, State Bank
of India (SBI), doesn’t care. The SBI
wants its `15,000 crore back, and the
sooner the company is sold, the faster
the bank can recover its money. Being
on the CoC, the bank can influence the
sale of Essar to Arcelor even if it results
in a transfer of wealth from minority
creditors and existing shareholders (the
Ruias) to Arcelor.
Despite some shortcomings, the IBC
is an excellent first step in the develop-
ment of a set of modern bankruptcy
laws in the country. Over time, changes
need to be drafted to ensure proper
resource allocation, efficiency and stabil-
ity, as well as equality and fairness.
—The writer is a financial economist
and founder, contractwithindia.com
Agoodbankruptcylawmustprotectthe
rightsofcreditorsandotherstakeholders
andpreventprematureliquidationof
viablefirms—essentialtorisk-takingand
entrepreneurshipforeconomicgrowth.
DOWN AND OUT
Macroeconomic and industry-specific factors
have created huge stress in the realty sector
Anil Shakya

Supreme Court/ False Implication
HE Supreme Court recently
ruled that conviction for
murder cannot be awarded
merely on the basis of eye-
witnesses providing a gra-
phic and vivid description
of the manner in which the alleged off-
ence was committed. The four appell-
ants, belonging to a nomadic communi-
ty in Karnataka, had been convicted for
the gruesome murder of a man and two
children in 2009 and sentenced to death
by subordinate courts in the state. Acq-
uitting three of them, the apex court
ripped apart the police case which relied
solely on the description of the commis-
sion of the offence by eyewitnesses.
The bench noted that an impression
had been created by the police based on
the allegations by the key witness in the
case (a daily wage labourer) that the
four accused persons had committed the
murder. This impression was then car-
ried into the Test Identification Parade
which was held subsequently.
Could this Supreme Court judgment
nip the trend of false implication? Some
legal experts are of the view that the
police, in order to close a case, tend to
manufacture false theories. And people
from the lowest strata of society who
have limited access to resources often
face the brunt of such police negligence.
Srinivas, the complainant, was work-
ing as a coolie on the land belonging to
one Sharanappa Gouda, which was
adjacent to the land of his elder brother,
Basavarajappa, in Shivapur village of
Yadgiri district, Karnataka. Srinivas told
the police that Basannagouda, a relative
of Basavarajappa, was working as a
supervisor and his two sons, Shivareddy
and Srinivasreddy, were employed as
coolies on the land of Sharanappa.
On February 14, 2009, at around 11
pm, Srinivas informed the police of the
murder of Basannagouda, Shivareddy,
and Srinivasreddy. Surykanthamma, the
mother of the two children, was griev-
ously injured in the attack on her family
in their house. Based on Srinivas’s com-
plaint, an FIR was lodged against
unknown persons. Srinivas also
informed the police that he had heard
three or four people talking in Telugu
around the house at the time of the inci-
dent. Recuperating in a hospital,
Surykanthamma identified Palya (who
belongs to the nomadic tribe, Chikgari-
kara) from the photographs of suspects
shown to her by the police as one of the
accused. On the basis of her identifica-
tion, the police concluded that the other
accused too would be from the same
tribe and that the motive of the crime
was dacoity.
The police asked Srinivas to provide
graphic details of the accused, and
sketches were prepared accordingly.
Later, the police nabbed Basavaraj,
Yankappa, and Ramesh from an area
inhabited by some tribes near the loca-
tion of the crime. The police recovered
an axe, knives, jewellery and some cash
from them, claimed to have been looted
during the course of the incident. This
discovery was significant as a forensic
examination had confirmed that the
The Malice of Fabrication
Inarecentcase,theSupremeCourtacquittedthreeofthefourpersonswhohadbeenconvicted
ofmultiplemurdersandsentencedtodeath,citinglackofadequateevidence
By Sumit Saxena
T
SHOOTING IN THE DARK
The police often manufacture false theories in
order to close a case and wrongly implicate
people from vulnerable sections of society
UNI

cause of death was haemorrhage possi-
bly caused due to injuries inflicted on
vital organs by a knife and axe. How-
ever, the police could not satisfactorily
establish the manner in which recovery
was made from the accused.
During the trial, the subordinate
courts had even recorded that the assail-
ants were unknown persons and there
was no known motive for the crime.
However, the prosecution had informed
the courts that during interrogation, the
accused had confessed to the commis-
sion of the crime. The trial court had
ruled that on the basis of the entire evi-
dence available on record, it was estab-
lished that the prosecution had success-
fully established the guilt of the four
accused persons, and sentenced them to
death. This order was affirmed by the
Karnataka High Court. The accused had
filed a special leave petition in the
Supreme Court challenging the order.
The Supreme Court said that the
eyewitnesses, Srinivas and Surykanth-
amma, had given a graphic and vivid
description of the manner in which the
crime was committed by the accused
persons but that was insufficient as
proof of identification. The bench also
took cognisance of the fact that the Test
Identification Parade was held 27 days
after the arrests of the
accused. It added that
although the lower
courts had discounted
the delay on the
ground of procedural
formalities, the prose-
cution had failed to
establish to the satis-
faction of the court
that “the eyewitnesses
had correctly identified
the accused”. The
bench said this req-
uirement was very cru-
cial as the accused and
the eyewitnesses were
not known to each
other from before.
The Karnataka gov-
ernment’s counsel
requested the Court to consider the
plight of the mother who had witnessed
the horrific murder of her children. The
CJI directed the state counsel not to
pursue the Court with misplaced sympa-
thies, as conviction could not be based
on perceptions. The CJI said that proof
of identification is not open to any com-
promise; there must be strong corrobo-
rative evidence in the absence of motive.
The Court said the police theory regard-
ing the recovery of an axe and knives
from the accused could not be relied
upon to enforce a conviction.
T
he Court said the police had
recorded the evidence of the
mother in the hospital, she was
apparently asked to identify the accused
from some photographs; and she could
only identify one out of the four
accused, Palya. The Court said that,
given her trauma, it was necessary to
carefully scrutinise her evidence to con-
firm the identification of the accused.
“We are of the view that it would be
safer if some more corroborative evi-
dence on the point of identification is
available on record. No such evidence is
forthcoming,” noted the bench.
The Court said the prosecution is
dutybound to show how the recovery of
the articles was made in order for the
evidence to be admissible under Section
27 of the Evidence Act, but no such evi-
dence was forthcoming. On January 23,
the Court set aside the death penalty
awarded to all the accused persons other
than Palya, whose sentence was com-
muted to life imprisonment.
Advocate SN Bhat, counsel for the
accused, said: “This case is an example
of the age-old malady afflicting our
police and its methods of investigation.
It appears that police have not taken to
scientific methods of investigation even
though many sophisticated tools are
available. In this case, for instance, the
police did not pick up any evidence from
the crime scene to connect the accused
to the crime like fingerprints or any
other telltale pieces of evidence. The
police first constructed a hypothesis that
the crime was the handiwork of a tribe
and went looking for the suspects from
that vulnerable section of society.”
Ajay Pandey, professor of law at OP
Jindal Global University, told India
Legal: “Fabrication of facts and false
framing of innocents cannot have any
place in a fair criminal justice system.
The role of the police should be to pro-
tect and promote truth for the criminal
justice system to work well and win con-
fidence of people. To this effect, as a
society, we need to work to ensure urg-
ent and effective police reforms. The
judicial system must look into police
misadventure in fabrication and ensure
adequate consequences for wrongdoers.
These aspects should also form a part of
police training and sensitisation.”
Legal experts claimed it appears that,
in this case, the focus of the investiga-
tion was to first determine the suspects
and then procure evidence in support of
their culpability. “This case once again
exposes the fragility of the life and per-
sonal liberties of our citizens, particular-
ly those belonging to the lower strata of
society,” said Bhat.
“Thiscaseexposesthe
fragilityofthelifeandper-
sonallibertiesofourciti-
zens,particularlythosefrom
thelowerstrataofsociety.”
AdvocateSNBhat,
counselfortheaccused
“Thejudicialsystemmust
lookintopolicemisadven-
tureinfabricationand
ensureadequateconse-
quencesforwrongdoers.”
ProfAjayPandey,
OPJindalGlobalUniversity

Supreme Court/ Ayodhya Dispute
HE government has moved
the Supreme Court seeking
dilution of its earlier Ayo-
dhya order which had said
that the centre must main-
tain status quo on the
67.703 acres of land it had acquired at
the site back in 1993. This comes amidst
growing clamour from the Hindu-right
to begin construction of the Ram Man-
dir with just three months to go before
the Lok Sabha polls.
The Supreme Court is still undecided
on when it will begin hearing the peti-
tions challenging the Allahabad High
Court’s verdict of 2010 that had ordered
transfer of the disputed site in three
parts to the three competing claimants.
However, the centre wants the Court
to allow transfer of a major chunk of
the land—except the 0.313 acres on
which the Babri Masjid stood—to the
Ram Janmabhoomi Nyas, one of the
parties in the title suit which is leading
the campaign for construction of the
Ram Mandir.
“It is respectfully submitted that the
acquisition took place in the year 1993
and 25 years have passed, the original
landowners whose land, which were not
in dispute but were still acquired, are
entitled to get it back and the Central
government is duty bound to restore/re-
vert/hand over the same land,” read the
centre’s application that was filed with
the apex court registry on January 28.
The application reads: “Permit the
central government to
restore/revert/hand over
back superfluous/excess
vacant land (other than the
disputed land measuring
0.313 acres) to the own-
ers/occupiers from whom
the respective lands were
acquired under the Act
of 1993.”
It may be recalled that
the 67.703 acres of land at
the site and its vicinity were
acquired by the centre in
1993 through the contro-
versial Acquisition of
Certain Area at Ayodhya Act.
On three occasions since—in the
1994 Ismail Faruqui verdict, in 2003
and then again in 2011—the Supreme
Court has directed the centre, the statu-
tory receiver of the acquired land under
the Act, to maintain status quo at the
site. The top court’s stand on the land
has consistently been that the plots
acquired by the centre under the Act are
“intrinsically connected” and cannot be
separated until the title suit is adjudi-
cated. For, if the land is transferred
under Section 6 of the Act, during the
pendency of the hearing, “further com-
plications may arise.”
In 2003, a five-judge constitution
bench of the Court had said: “...status
quo has been maintained from 1992 on-
wards…. When for a long time, a partic-
ular state of affairs has prevailed—as in
the present case for over a decade—and
Poll Vault
T
DRUMMING UP SUPPORT
People at a “Dharma Sabha”
organised by the VHP in
Ayodhya for the Ram temple
Thecentre’sapplicationcomesatatime
whentheRSSanditsideologicalallies
havebeendemandingthattheModi
governmentbringinanordinanceto
enableconstructionoftheRamMandir.
UNI
AsthecentremovesapleaseekingtransferoflandnearthedisputedsitetotheRamJanmabhoomi
Nyas,leavingaside0.313acresonwhichtheBabriMasjidstood,alleyesarenowonthetopcourt
By India Legal Bureau

Legally speaking, Jilani may be right
in his assumption that the Nyas lost its
ownership right to the land once it was
acquired by the centre in 1993 because
land given on lease does not fall in the
free-hold category and so the leasehold-
er cannot assert the claim of being an
owner.
Though Prime Minister Narendra
Modi had, in a recent interview, claimed
that his government would wait for a
resolution of the dispute by the Supreme
Court, his colleagues in the government
did not seem to share the same view.
The application comes days after Union
Law Minister Ravi Shankar Prasad
nearly commanded the Supreme Court
to rule favourably for construction of the
Ram Mandir. Prasad had said: “The
Ayodhya case has been pending for the
last 70 years. The Allahabad High Court
order was in favour of the temple (in
2010), but then it is on hold in the
Supreme Court now. This matter should
be cleared soon.”
It is premature to state whether the
top court will rule favourably on the
centre’s application given the sensitive
nature of the title suit. However, in the
unlikely scenario of the Court granting
the centre’s request, the decks will be
cleared for the govern-
ment to hand
over a large chunk of
the acquired land to its
owners—a majority of
them affiliated with the
votaries of building the
Ram Mandir.
In such an event,
preliminary ground-
work for construction of
the Mandir may com-
mence before the Lok
Sabha polls, giving the
BJP a massive advan-
tage at the hustings.
The party can then
reach out to the majori-
ty Hindu electorate and
state that it was finally
fulfilling its long-stated
poll promise of ensuring
that a massive Ram Mandir is built at
the Babri Masjid site.
Not surprising, then, that the grand-
standing of the Hindu-right has already
begun. Even though it isn’t clear yet
whether the apex court will even enter-
tain the centre’s application, Hindu
seers who attended the Param Dharam
Sansad in Allahabad on January 30 gave
a clarion call for starting the construc-
tion of the Ram Mandir from February
21. Urging “all Hindus” to be ready to
“face bullets for the construction of the
Ram Mandir”, Shankaracharya Swami
Swaroopanand Saraswati told the con-
gregation that Hindus must march for
Ayodhya with bricks for the shilanyas
and reach the site by February 21.
The build-up is reminiscent of frenzy
that preceded December 6, 1992, when
the Babri Masjid was demolished and
the nation burned in the fires from the
consequent Hindu-Muslim riots. The
embers from that conflagration have not
gone cold in the 26 years since. The
Supreme Court can stop them from flar-
ing up into an inferno. Will it?
when the adjudication of the disputes
which are pending before the High
Court are reaching final stages, it will
not be appropriate to disturb that state
of affairs.”
The bench had also reiterated, per-
haps with almost prophetic foresight, an
observation made by the Court earlier in
Ismail Faruqui that said: “…in the event
of the Muslims succeeding in the adju-
dication of the dispute requiring the dis-
puted structure to be handed over to the
Muslim community, their success should
not be thwarted by denial of proper
access to, and enjoyment of rights in,
the disputed area by exercise of rights of
ownership of Hindu owners of the adja-
cent properties.”
The application by the centre now
comes at a time when the RSS and its
ideological allies, such as the VHP and
Bajrang Dal, have been demanding that
the Modi government bypass the legal
proceedings in the pending Ayodhya
title suit and bring in an ordinance to
enable construction of the Ram Mandir
at the disputed site. Expectedly then, the
VHP’s international working president,
Alok Kumar, welcomed the centre’s
application, calling it a “step in the
right direction”.
T
he Muslim parties in the title suit
have, predictably, slammed the
centre’s move. The Sunni Central
Waqf Board has also disputed the claim
that the Ram Janmabhoomi Nyas owns
42 acres of the supposedly “undisputed”
land that the centre wants to return to
the trust. Zafaryab Jilani, counsel for
the Sunni Central Waqf Board, told
mediapersons that the Nyas was a lessee
and projecting it as an original owner in
a legal application was misleading.
“We will challenge the centre’s move
if the Supreme Court admits its applica-
tion. The centre’s claim that the Ram
Janmabhoomi Nyas is the owner of a
major part of the land is legally wrong.
This land (around 42 acres) was given to
the Nyas, a wing of the VHP, in 1991 on
lease. But this lease was cancelled by the
1993 Act,” Jilani said.
ZafaryabJilani,counsel,
SunniCentralWaqfBoard,
toldthemediathatpro-
jectingRamJanmabhoomi
Nyasasanoriginalowner
wasmisleading.
ShankaracharyaSwami
SwaroopanandSaraswati
hasaskedtheHindusto
marchtoAyodhyawith
bricksfortheshilanyasand
reachthesitebyFeb21.

My Space/ BCI Letter to PM Rupinder Suri
22 February 11, 2019,
TheBarCouncilofIndia’spleaforanannualbudgetforlawyersneedsdetailedstudyandshouldbe
linkedtotheirneedssothatauthoritiescannotrejectthemasbeingtoodemanding
Outrageous Demands?
Council of India prior to the general
election in 2014. It is a fact that there is
no social security for advocates. If, God
forbid, a lawyer suffers from a serious
accident or ailment, there is nobody to
look after him or his family. This is
especially so today with the shift from
joint to nuclear families.
While I endorse the need for a sound
and well-thought-out social security
scheme for lawyers, there is need for a
detailed study by the Bar Council of
India. The demand should be rationally
linked to the need so that authorities
ANAN Kumar Mishra,
chairman, Bar Council
of India, and a pioneer
who brought the focus
on practising lawyers
with doubtful law deg-
rees, has taken another step for the
welfare of lawyers. In a letter to Prime
Minister Narendra Modi on January
22, 2019, he has asked for a `50,000-
crore annual budget for their welfare.
The letter reminds the prime minis-
ter of the assurance he gave at the
golden jubilee celebrations of the Bar
Anil Shakya
UNCERTAIN FUTURE
(Top) There is no social
security cover for
lawyers and the legal
profession is
unfavourable to many
who struggle to make
both ends meet
M

cannot reject the same at the outset as
being outrageous.
Anyone studying law was never given
any promise or assurance that he would
get a monthly stipend equivalent to
`10,000 per month or a pension. The
legal profession is extremely benign to a
few and unfavourable for a large num-
ber of lawyers. Unfortunately, there is a
large segment who is not doing well and
finds it difficult to make both ends meet
while living a life of dignity befitting
a lawyer.
While National Law Universities and
certain other colleges impart premium
legal education, the bulk of law colleges
is failing to keep up with the required
standards of education. As a result,
lawyers graduating from these colleges
are at a distinct disadvantage as com-
pared to the ones who have studied in
good colleges.
The buck cannot be passed by the
Bar Council of India as it has been en-
trusted with ensuring that the standards
of legal education are consistently main-
tained. There is mushrooming growth of
law colleges with hardly any infrastruc-
ture or good faculty. Curiously, there is
hardly a law college which has been
directed to be closed for this reason.
There is urgent need for the Bar
Council of India to do a detailed analy-
sis on the needs of the justice system
and advocates required in order to
restrict admission in law colleges. This
will ensure that there is no oversupply
of lawyers. Additionally, and perhaps
more importantly, there is a need to
establish dedicated law academies for
lawyers for providing continuous legal
education on the same scale as judicial
academies. The cost for these legal
academies, updated infrastructure,
libraries, etc., should necessarily be to
the account of the judiciary budget as
lawyers play a very big role in the justice
delivery system.
I
ndependent of this budgetary allo-
cation, in case things go amiss, a
special provision should be made
for social security and old age care for
lawyers. A part of court fees should
potentially be reserved for such a provi-
sion. In this context, it is relevant to
appreciate US President Ronald Reagan
who once said: “Welfare’s purpose
should be to eliminate, as far as possi-
ble, the need for its own existence.”
Without well-thought-out, struc-
tured and cogent reasons for the
demands for such a large amount, we
may fall into the vicious trap of being
reliant on such freebies being doled out
in the garb of “welfare”. There can be no
situation more dangerous than when an
advocate—an officer of the court—
whose focus should be upholding the
interests of the client and facilitating
speedy justice is diverted towards clam-
ouring for these freebies. It is reiterated
that there is great need for upgradation
of our fraternity—not just the exterior
facade but also from within.
This is linked to the more pertinent,
IftheBCIismakingademandforfinancial
supportandissuccessfulinsecuringthe
same,theremustbeacorrespondingduty
uponthemtoutilisethosefundstowards
dischargingtheirstatutoryduties.
APPEAL FOR SUPPORT
(Below) Manan Kumar Mishra, chairman, BCI;
Narendra Modi addressing the gathering at
the BCI’s golden jubilee event in March 2014
Anil Shakya
Anil Shakya gandhinagarportal.com

but less highlighted, portion of the list of
demands—the need for greater partici-
pation of lawyers in the justice delivery
system. The important question that
needs to be extricated from the list of
demands in the letter is—what is
required to improve the standard of
lawyers, and therefore, what support is
required from the Union government?
If the Bar Council of India is making
a demand for financial support and is
successful in securing the same, there
must be a corresponding duty upon
them to utilise those funds towards dis-
charging their statutory duties. The
Advocates Act, 1961, clearly lays down
the duties of the Bar Council of India
and states that it shall promote legal
reform and legal education. To borrow a
phrase from Justice AK Sikri at a recent
convocation: “Legal education isn’t over
after you leave university. In fact, it
begins when you start practising.”
There is no doubt that a new entrant
in the field of law will require adequate
cushioning in monetary form. But more
important is the need to impart the
required skill and training to survive in
the industry. In fact, in view of the
ever-changing laws and progress of soci-
ety, this principle ought to apply across
the board, without reference to age or
experience.
in the United Kingdom, etc., all have
mandatory provisions requiring a mini-
mum number of CLE/CPD hours each
year. It is interesting to note that India
plays host to many international events
which award these CLE/CPD hours and
yet our own “regulator” does not recog-
nise the same.
W
hile there are several essential
points mentioned in the letter
to the prime minister, they
are rambling and most do not have any
basis attached to them. Issuing such a
letter with a subtle “threat” of “a massive
demonstration at Delhi” (the legality/ne-
cessity of which is also questionable)
seriously erodes its credibility and
makes a rational mind doubt the very
timing of the letter and whether it is
politically motivated.
While dedicated allocation of funds
may be the need of the hour for our fra-
ternity, it is essential that the same is
efficiently utilised. The demands we
make through the apex regulator should
not be vague and without reason. It is
hoped that we do not fall prey to an
accusation of ulterior motive and can
have a healthy deliberation on some
vital issues touched upon in the letter.
It is an oft-quoted cliché that welfare
was never intended to be a career
opportunity. The implications of associ-
ating this cliché with the legal profes-
sion—which is a noble one and consid-
ered to be a “calling”—is dangerous for
the very existence of an independent
bar and, therefore, an independent
judiciary.
—The writer is a Senior Advocate
and former President, Supreme Court
Bar Association
Budget allocation would be more
efficient if it is made towards organising
training and academic programmes in
the name of Continuing Legal Educa-
tion (CLE) or Continuing Professional
Development (CPD). The CLE/CPD
credit system, as prevalent in most
jurisdictions abroad, requires fresh law
graduates and current practitioners to
continue attending a required number
of legal education classes for a particu-
lar time period in order to achieve and
maintain high standards of competency,
legal awareness, legal application and
professionalism. This concept is not
unknown to our profession and even
Professor (Dr.) NR Madhava Menon,
the leading academician in our profes-
sion, has made this express request to
the Bar Council of India.
CLE/CPD is, in fact, considered to
be part of “best practices” across the
globe. The New York State Bar, the
Victoria Bar, Law Society for Upper
Canada, Solicitors Regulatory Authority
Thereisnodoubtthatanewentrantin
lawwillrequireadequatecushioningin
monetaryform.Butmoreimportantisthe
needtoimparttherequiredskilland
trainingtosurviveintheindustry.
QUALITY OR QUANTITY?
Students after passing out of a law college in
Bengaluru. A majority of law colleges has
failed to maintain high standards
My Space/ BCI Letter to PM / Rupinder Suri
UNI

Courts/ Transgenders
N a move replete with noble inten-
tions, the Madras High Court has
issued a notice to the Tamil Nadu
government following a petition on
transgenders. The petition wanted
directions to be issued to the gov-
ernment to create special reservation for
the transgender community in govern-
ment jobs. It was filed by P Sudha, a
Chennai-based transgender activist.
The petition said: “Reservation is
provided for the upliftment of certain
communities and women in some cases
as they were oppressed and denied
equal opportunities for several decades.
Though transgender community people
have been identified as the third gender,
no proper welfare measures are being
taken by the state for the community’s
upliftment or empowerment. The trans-
gender community is in a constant bat-
tle with oppression and discrimination
from all sections of society.” It added:
“Providing reservation to the transgen-
der community was the need of the
hour. This reservation could change the
face of the community and hence I pray
the court direct the state government to
come up with a policy to provide reser-
vation to the transgender community as
a special case in government appoint-
ments.”
However, Tamil Nadu has been a
frontrunner in the welfare of transgen-
ders. Both the AIADMK and the DMK
had initiated several welfare schemes for
them. In 2008, the DMK government
had established a dedicated Transgender
Welfare Board. Also in 2008, Tamil
Nadu became the first state to grant
third gender status to transgenders.
Even the Congress went out of its way
for the community when its president,
Rahul Gandhi, appointed Apsara Reddy,
a Chennai-based transwoman and
activist, as a general secretary of its
women’s wing.
The Tamil Nadu government is at
present giving a monthly pension of
`1,000 to transgender persons aged 40
and above. “The tragedy is that very few
transgenders live beyond 60 years as our
average lifetime is of 40 years. This is
due to health complications arising out
A Change of Heart?
DespiteallthatTamilNaduhasdoneforthiscommunity,the
MadrasHighCourthasaskedwhetherthepresentgovernment
canreservegovernmentjobsforthem
By R Ramasubramanian in Chennai
I
ApetitionfiledintheMadrasHC by
PSudha,aChennai-basedtransgender
activist,hassoughtdirectionsforthe
governmenttocreatequotaforthetrans-
gendercommunityingovernmentjobs.
Photos: UNI

of surgeries that most transgenders
undergo for specific physiological prob-
lems,” said transgender Shanthi.
One of the major problems transgen-
ders face is housing. “Landlords won’t
easily accept us as tenants. Even if they
do, we face several problems on a day to
day basis. Suddenly, without any reason,
the landlord will ask us to vacate imme-
diately,” revealed another transgender,
Jayanthi. She said that late Chief
Minister J Jayalalithaa had done a lot to
help them. “Before the end of her tenure
and in the run-up to the assembly elec-
tions in 2016, Jayalalithaa had allotted
260 furnished flats exclusively for the
transgender community in northern
Chennai. For the first time in our lives,
this enabled several of our people to live
together safely.”
M
ost of the transgenders India
Legal spoke to said that more
than the AIADMK govern-
ment, it was the DMK government that
had taken many positive steps for their
welfare. “Apart from the creation of the
Transgender Welfare Board in 2008, the
decision to recognise us as a third gen-
der was taken by the DMK government.
It also introduced a pension scheme and
issued identity cards to all those who
registered their names with the Trans-
gender Welfare Board. While it is true
that the Jayalalithaa government allot-
ted 260 houses to us, she could have
done more. We are disappointed by the
overall attitude of the AIADMK govern-
ment,” said another transgender.
In 2014, the Supreme Court granted
third gender status to the transgender
community. The Court also said the cen-
tre and state governments should grant
them the same benefits that the Most
Backward Communities (MBC) enjoy.
In Tamil Nadu, the transgender commu-
nity is included in the MBC quota.
Despite all these measures, an
important development in the past
seven to eight years forced a sizeable
number of transgenders to return to the
sex trade in Tamil Nadu. This was due
to the stoppage of funds to several non-
governmental organisations, both by
the government and private players,
who were working in prevention and
awareness generation programmes on
HIV/AIDS.
A Subashree, who worked with an
NGO, told India Legal: “From the mid-
dle of the 1990s to 2011, there were
many HIV/AIDS awareness program-
mes in Tamil Nadu involving many
NGOs. Though they received funds from
both inside and outside India, the state
government’s support was crucial. Hun-
dreds of transgenders went around the
state, working among sex workers and
other vulnerable groups including truck
drivers, and created awareness about
HIV/AIDS. For this work, they were
paid decently. But after the dwindling of
funds to NGOs and the state govern-
ment’s shrinking interest in the issue,
the transgender community was sud-
denly left in the lurch. As they don’t
have any other talent or education, they
went back to the age-old profession.”
It’s not clear what stand the Tamil
Nadu government is going to take on
the present issue of reservation in gov-
ernment jobs for transgenders. There
was a move in 2013 when a petitioner
approached the Madras High Court
with the same prayer. At that time, the
Tamil Nadu government told the High
Court that reservation for them was not
legally possible. Instead, it listed the
welfare schemes initiated by the govern-
ment for the welfare of transgenders.
It remains to be seen whether in six
years there has been a change of heart
in the Tamil Nadu government.
TamilNaduhasbeena
frontrunnerinthewelfare
oftransgenders.Boththe
JJayalalithaa-led
AIADMKandthe
MKarunanidhi-ledDMK
initiatedseveralwelfare
schemesforthem.
FIGHT FOR RECOGNITION
Activists in Chennai protesting against the
Transgenders Protection of Rights Bill; (right)
two transgenders in a government hospital
being honoured by CM K Palanisamy

Probe/ Uttar Pradesh/ Akhilesh Yadav
HAT does the Na-
rendra Modi govern-
ment do when it
wants to rein in an
inconvenient opposi-
tion politician or
party? It lets loose the Central Bureau of
Investigation (CBI). They have done it
again, it would seem, if the crackdown
on some Samajwadi Party (SP) politi-
cians, bureaucrats and other officials
in cases related to the illegal sand
mining in the state and financial anom-
alies in the Gomti Riverfront project is
any indication.
The agency’s credibility would always
be suspect as CBI DIG Gagandeep
Gambhir, who was supervising the
investigation into SP chief and former
Chief Minister Akhilesh Yadav’s alleged
role in illegal mining, was transferred in
the changes effected by interim CBI
Director M Nageswara Rao.
The two CBI inquiries are in a way
different. While it was the state govern-
ment which first instituted a judicial
inquiry into the riverfront case before
bringing in the CBI, the probe into ille-
gal mining was handed over to the cen-
tral investigative agency by the
Turning On The Heat
Thoughthere’snothingtosuggestthattheformerCMisbeingpersonallytargeted,therecentCBIraids
onSPpoliticiansandofficialsinmultiplecasespointtowardspre-pollmanoeuvrestopressurehim
By Atul Chandra in Lucknow
W

Allahabad High Court. The High Court,
in 2016, had asked the agency to look
into all cases of illegal mining, submit a
preliminary report on the involvement
of officials and file FIRs wherever neces-
sary. As such, the charge of political
vendetta does not hold in the illegal
mining case which started during
Yadav’s tenure when there was an outcry
against large-scale depletion of natural
resources by a nexus of politicians,
bureaucrats and contractors.
The order for a CBI probe was
passed by a division bench of the High
Court comprising then Acting Chief
Justice VK Shukla and Justice MC
Tripathi on a bunch of PILs. The peti-
tioners alleged that mining leases had
been illegally extended in several cases
and district magistrates were filing false
affidavits claiming that there was no
illegal mining activity in their areas. The
petitioners also claimed that the illegal
activities were going on with the con-
nivance of officials who had the govern-
ment’s patronage.
T
he High Court’s order pertained
to the districts of Hamirpur,
Deoria, Shamli, Siddharth Nagar
and Fatehpur where illegal mining was
alleged to be rampant. The principal
secretary, mining, UP government, filed
an affidavit in the case but the High
Court was not satisfied with his reply. It
said that the affidavit was filed “in a
casual manner”.
Subsequently, the CBI approached
the High Court for clarity on the action
it could take while probing the matter.
This time, a division bench of the High
Court comprising Chief Justice DB
Bhosale and Justice Yashwant Varma
said that the CBI “should not only probe
the matter but expedite the legal pro-
ceedings by filing FIRs”. The Court also
asked the agency to focus on the above
five districts even as the investigation
order covered the entire state.
The Yadav government opposed the
High Court’s order for a CBI probe but
its application was rejected. The state
then went to the Supreme Court which
allowed the CBI probe after initially
staying the High Court order.
In pursuance of the High Court or-
der, the CBI on January 5 this year raid-
ed several places in Lucknow, Kanpur
and Jalaun. The raids were conducted at
the residences of B Chandrakala, IAS,
ThetwoCBIprobesareinawaydifferent.
WhiletheUPgovernmentbroughttheCBI
intotheGomtiriverfrontmatter,the
probeintoillegalminingwashandedover
totheCBIbytheAllahabadHighCourt.
UNDER THE SCANNER
(Above) UP CM Akhilesh Yadav laying the foundation stone of the Gomti
Riverfront project (left) in 2015 in Lucknow
Photos: UNI

who served as the district magistrate of
Hamirpur, Bijnor, Bulandshahr and
Meerut, SP MLC Ramesh Kumar
Mishra, and Sanjay Dixit of the BSP as
well as eight others. The CBI had regis-
tered five preliminary inquiries in the
case in the last two years.
On the basis of the CBI’s FIRs, the
Enforcement Directorate (ED) too regis-
tered cases of money laundering against
the accused. An ED official said that the
case had been registered to probe the
money trail of those involved.
Coming soon after the Samajwadi
Party and the Bahujan Samaj Party
announced their political alliance for
the Lok Sabha elections, the raids were
obviously perceived as the BJP govern-
ment’s vendetta. Saying that he is ready
to face the CBI, Yadav warned the BJP
at a press conference: “Why is the CBI
conducting raids? Whatever they want
to ask, they can ask me. But the BJP
should remember that the culture it is
leaving behind, it may have to face it in
the future.”
Denying that it was acting as the BJP
government’s handmaiden, the CBI was
quoted as saying that Yadav held the
mining portfolio for a year, from 2012 to
2013, and had cleared 14 leases. Of
these, 13 leases were cleared by him on a
single day—February 17, 2013—in viola-
tion of the e-tendering policy cleared by
the High Court in January the same
year. Controversial IAS officer Chandra-
kala, who was the district magistrate of
Hamirpur during that period, granted
the leases on February 17—the day these
were cleared by the chief minister, the
agency said.
T
he Gomti Riverfront project was
in Yogi Adityanath’s crosshairs
from the day he took charge as
chief minister, and to that extent the
action being taken is politically motivat-
ed. The chief minister was upset that
out of the total `1,500 crore earmarked
for the project, `1,433 crore had been
paid to the executing agency. For com-
pleting only 60 percent of the work,
the agency had spent `1,427 crore and
had raised a demand for another
`1,500 crore.
Yogi ordered an inquiry into the pro-
ject by retired High Court judge Alok
Kumar Singh as head of a judicial com-
mission. He was to be assisted by AK
Garg, professor of finance at IIM-Luck-
now, and UK Chaudhary, a former pro-
fessor of riverine engineering at
IIT-BHU. The commission submitted its
report in 45 days, the period stipulated
by the chief minister. Submitted in May
2017, the report was learnt to have indi-
cted a couple of senior bureaucrats,
some engineers and bureaucrats. Soon
after receiving the judicial inquiry re-
port, another high-level panel was con-
stituted to study Justice Singh’s findings
and fix responsibility so that charges
could be framed.
Subsequently, in June 2017, an FIR
was registered against several engineers
of the state irrigation department. The
police said that “an FIR was filed by an
executive engineer against eight engi-
neers of the irrigation department for
their alleged role in anomalies in the
execution of Gomti Riverfront Project”.
On the state’s request, the centre
referred the matter to the CBI on Nov-
ember 24, 2017. Those named in the
CBI FIR included chief engineers
Gulesh Chandra, SN Sharma, Qazim Ali
and then superintendent engineers
Mangal Yadav, Akhil Raman, Kamlesh-
war Singh and Roop Singh Yadav. Of
these, Gulesh Chandra, Mangal Yadav,
Akhil Raman and Roop Singh Yadav
have since retired.
On January 24, the ED carried out
searches in Lucknow, Noida, Delhi,
Rajasthan and Haryana. The premises
of the accused and their associates were
raided for documentary evidence.
So far, nothing suggests that Yadav is
being personally targeted for the proj-
ect. However, politics before the Lok
Sabha polls may decide whether he feels
the heat of CBI probes or is left alone.
AnAllahabadHighCourtdivisionbench
ofthenChiefJusticeDBBhosale(top)
andJusticeYashwantVarmasaidthat
theCBIshouldprobeillegalminingin
fivedistrictsofUPandfileFIRs.
Probe/ Uttar Pradesh/ Akhilesh Yadav
POLITICAL VENDETTA?
The probe initiated by UP CM Yogi Adityanath
in the Gomti riverfront case seems motivated

Focus/ Chhattisgarh/ National Rural Health Mission
More than 200 people lost their lives
or turned blind in the past five years
during routine eye operations at a
government facility in Chhattisgarh.
There is such a severe shortage of
doctors that when the new Congress gov-
ernment wanted to punish and transfer
Dr Puneet Gupta, a nephrologist and
superintendent of DK Hospital, Raipur,
it had to create a special post to keep
him in the medical college, Raipur.
There are 155 Community Health
Centres and 790 Primary Health
Centres in the state but they have a
shortage of 1,047 doctors, 1,336 nursing
staff, 207 laboratory technicians and
202 pharmacists.
Not Keeping
WellTheComptrollerandAuditorGeneral’sreportontheMission
inthestatepaintsableakpictureonthehealthfrontduring
the2012-17periodunderreview
By Neeraj Mishra in Raipur
Representative Image: UNI
IN DIRE STRAITS
A patient after surgery at a
hospital in Chhattisgarh. Lack of
doctors and nurses is hampering
the NRHM in the state

T is in this backdrop that the re-
port by the Comptroller and Audi-
tor General (CAG) on the
National Rural Health Mission
(NRHM) was recently presented
in the assembly. The report said
extremely bleak things about the state of
healthcare in Chhattisgarh. There is an
89 percent shortage of specialists which
means that there are only about a dozen
specialists in the state health services.
And despite the flourishing of new pri-
vate nursing colleges and an attractive
starting salary of `40,000 being offered
by the government, there is a 34 percent
shortage of nurses against the sanc-
tioned strength.
Due to these shortages, the Infant
Mortality Rate (IMR) and Maternal
Mortality Rate (MMR)—IMR: 39/1000,
MMR: 173/1,00,000—were far short of
the NRHM goals—IMR: 25/1000,
MMR: 100/1,00,000). It is, therefore,
no wonder that Chhattisgarh stands at
15th place regarding IMR and at 12th
place regarding MMR in the country.
And that is the case where doctors
are not available. However, the scenario
isn’t very different even when they are
available. The awful shortage of drugs,
miserable lab services and poor diagnos-
tic back-up ensure that. The CAG,
which sampled the district
hospitals/Community Health Centres
(CHC)/Primary Health Centres (PHC),
where doctors were available, found that
patients were still deprived of necessary
treatments for various illnesses as well
as diagnostic services due to shortages
of medical equipment (25 percent to 69
percent), drugs and consumables (40
percent to 76 percent) and laboratory
services (36 percent to 71 percent).
Bland percentages, however, do not
reveal the extent of damage that has
been caused to the entire system.
Niharika Barik Singh, who recently took
over as the health secretary, confessed
that the shortage of doctors is the
department’s biggest headache: “We can
still get medicines, equipment and sup-
port staff, but where do you get the doc-
tors to serve in the rural areas? It is a
universal problem across India that doc-
tors do not want to serve in the villages
anymore.” State Health Minister TS
Singhdeo has been quoted as saying that
the government cannot match the sala-
ries being offered in the private sector
and, therefore, there seems no end to
the specialist crisis.
The benefits of NRHM have also not
been scooped up in other areas. The
infrastructure for the CHCs
should have been completed by now, but
as many as 54 out of the 223 CHCs
planned across the state have not even
been completed as yet. Similarly, 99 out
of 884 PHCs have not been completed
despite the work order being issued long
back.
“In some cases, we have been handi-
capped by non-participation of bidders,
in remote areas of Bastar and Sarguja,”
says Singh. But she still has to find out
how `14 crore of public money was
spent on these projects by the previous
Raman Singh government with no com-
pletion in sight.
The health department has managed
to establish a bulk of CHCs as First
Referral Units (FRUs) as promised
under NRHM. The state government
had set the target at 46 FRUs, but it has
only been able to get 28 on the ground.
A major failure has been the Chhatt-
isgarh Medical Services Corporation. It
was established on the lines of similar
sourcing corporations like Laghu Udyog
Nigam and Beverages Corporation to
act as the one-point sourcing unit for all
drugs and equipment. However, it failed
to supply drugs and equipment
I TheCAGreport,
whilelookinginto
Chhattisgarh’s
performanceonthe
NRHM,hasdamnedthe
previousRamanSingh
governmentforthe
poorheathcaresystem
inthestate.
Accordingtothestatehealthsecretary,
NiharikaBarikSingh,medicines,
equipmentandsupportstaffcanbe
arranged,buttherealproblemliesin
gettingdoctorstoserveinruralareas.
UNI

Focus/ Chhattisgarh/ National Rural Health Mission
despite receiving indents from the
department, on the grounds of non-
availability of rate contract for medi-
cines, non-receipt of tenders, and late
receipt of annual demands from the
Directorate of Health Services.
Compare the CAG report, which has
damned the government under the pre-
vious chief minister, Raman Singh, with
its overall perception of the NRHM and
its sub-programme on Reproductive and
Child Health (RCH). It estimates that
financial mismanagement is rampant
across India. The report highlights sub-
stantial unspent balances with the State
Health Societies every year. In 27 states,
the unspent amount increased from
`7,375 crore in 2011-12 to `9,509 crore
in 2015-16. Delays were also noted in
the transfer of funds from state treasur-
ies to State Health Societies, ranging
from 50 to 271 days. Similar problems
of incomplete physical infrastructure,
non-availability of human resources,
medical equipment and medicines, and
abysmal quality of healthcare and post-
natal care abound all around.
I
n the years under scrutiny of the
CAG—2012-17—the state has spent
an average of `3,000 crore on its
health budget. The last budget present-
ed by Raman Singh had allocated about
`3,600 crore for health services. He had
also allocated another `980 crore for
NRHM for building 25 new CHCs
which have yet to see the light of day.
The unspent money each year app-
ears to have been diverted into fancier
schemes like Mukhyamantri Swasthya
Bima Yojana (MSBY) which was a pre-
cursor to Modicare. Under MSBY, BPL
patients would get a free card entitling
them to an expenditure of up to
`50,000, up from `30,000 previously.
But soon it turned into a scam with pri-
vate hospitals overcharging patients and
treating them only if they had a card. In
most cases, the hospitals charged them
on the card as well as in cash. Even-
tually, it ended with the state’s inability
to pay card bills with private hospitals
going on strike and dishonouring the
MSBY card.
The new set-up under Singhdeo will
have to look into not only the misman-
agement of NRHM funds but of the
entire health department funds.
It will probably begin with DK
Hospital where Dr Puneet Gupta was
the superintendent. He has been
accused of having swindled crores of
rupees in reconstruction and re-equip-
ping. But, as Barik Singh says: “It’s not
an easy department to handle for any
government, and every day, crises rang-
ing from malaria to diarrhoea usually
saps the state’s energies.”
We will have to wait and see if the
Congress government fares any better in
implementing the NRHM.
T
he Congress-led Chhattisgarh
government will now look into var-
ious scandals associated with for-
mer Chief Minister Raman Singh. Des-
pite his “clean image”, he will now
have a lot to answer for.
One of the first things the Congress
government did was to appoint contro-
versial former Bastar IGP SRP Kalluri
(right) as head of the Economic Off-
ences Wing (EOW) and Anti-Corruption
Bureau in Raipur.
He has been given express instruc-
tions to follow these cases on a priority
basis. Kalluri is well-known for his
speed and unusual methods of
investigation, which often border on
the illegal.
In the multi-crore PDS scam, also
referred to as the NAN scam,
unearthed in March 2015, a 5,000-
page charge sheet was filed by the
EOW. The scam cast a cloud over the
PDS scheme which provides `1 per
kilogramme rice to poor families. The
CAG found that the government was
supplying low-quality rice, gram and
iodised salt to poor households. Two
IAS officers have already been sus-
pended following
investigations.
Now the cabinet
has decided to
reopen the case
and has redefined
some crucial terms
which might create
further problems
for Raman Singh.
The Antagarh
tape case has also
been given to the
EOW. In 2014, the
Congress candi-
date for the
Antagarh by poll,
Manturam Pawar,
had withdrawn his candidature at the
last moment. The BJP won the seat. It
was widely believed that Ajit Jogi had
struck a deal with Raman Singh to do
this. A Special Investigation Team
recently interrogated Pawar.
Dr Puneet Gupta, who is Raman
Singh's son-in-law, is being implicated
in another hospital construction and
supply scam. He has been transferred
out of the premier DK hospital.
Taintedbyscams?

India Legal 11 February 2019

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