Seeking Sardar's Blessings? The BJP's Appropriation of Sardar Patel

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November12, 2018
TheNewOffensiveFacingarebufffromtheSupremeCourt,theSanghParivarispressingforan
extra-legalresolutiontothedivisiveandelectorallysensitiveAyodhyadispute
beforethe2019elections.Canitsucceed?
Professor Upendra Baxi:
Defamation and the media
Yogi Adityanath:
Renaming spree

CTUALLY, Prime Minister Narendra
Modi’s political party needs no external
icon in order to give itself more credi-
bility or acceptability. The Bharatiya
Janata Party already had enough going
for it: an attractive acronym—“BJP”; a charismat-
ic former poet-prime minister, Atal Bihari Vaj-
payee; a vote-catching orator, Madison Square
rockstar current PM; an ostensibly post-Nehru-
vian-socialism economic ideology of laissez faire
supply side economics; a catchy slogan, “party
with a difference”. So why in heavens does it need
Sardar Patel, the party’s ideological nemesis and a
close friend and ally and staunch Congress col-
league of the BJP’s bête noire Jawaharlal Nehru?
Modi has just inaugurated with ecstatic fan-
fare the mostly made-in-China 182-metre “Statue
of Unity”—the tallest in the world—of Patel. Sym-
bolically, Patel now becomes the political patron
saint of the BJP. The idea seems to be to appro-
priate this iconic administrator and indefatigable
freedom fighter, who was also a Gandhian nation-
alist, as a symbol of the BJP’s roots in the nation-
al struggle for freedom, and give real flesh and
blood to its modern “nationalist” agenda.
Sadly, no matter how many statues it erects or
textbooks it changes, it cannot erase history. Its
antecedents are indelible. The forebearers of the
BJP did not participate in the Quit India move-
ment. In fact, Patel as home minister banned the
RSS following Gandhi’s assassination in 1948.
The BJP, however, tends to overlook this fact and
stresses, rather, the welcome words addressed by
Patel shortly after Independence in a speech deli-
vered in Lucknow on January 6, 1948.
Inviting the Sangh to join the Congress main-
stream, Patel intoned: “In the Congress, those
who are in power feel that by the virtue of author-
ity they will be able to crush the RSS. You cannot
crush an organisation by using the danda. The
danda is meant for thieves and dacoits. They are
patriots who love their country. Only their trend
of thought is diverted. They are to be won over by
Congressmen, by love.”
Three weeks later, Gandhi was shot dead by
Nathuram Godse, associated with the extreme
Hindutva right-wing. Patel completely changed
his views on the RSS. According to journalist
Durga Das, on July 18, 1948, Patel wrote to Dr
Syama Prasad Mukherjee, who later founded the
Bharatiya Jana Sangh: “As regards the RSS and
the Hindu Mahasabha… our reports do confirm
that, as a result of the activities of these two bod-
ies, particularly the former (RSS) an atmosphere
was created in the country in which such a ghast-
ly tragedy became possible.”
H
istorian Desraj Goel also quotes a
September 11, 1948, letter from Patel to
Guru Golwalkar, RSS supreme leader,
following his release from jail in the aftermath of
Gandhi’s assassination. Every line is worth
remembering as India celebrates the inauguration
of the Statue of Unity:
“Aurangzeb Road,
“New Delhi,11th Sept. 1948
“Brother Sri Golwalkar,
“Received your letter dated 11th August.
Jawaharlal has also sent me your letter of the
same date.
“You are very well aware of my views on the RSS.
I have expressed these thoughts at Jaipur in
December last month, at Lucknow in January.
The people had welcomed those views. I had
hoped that your people also would accept them.
But they appear to have no effect on the RSS per-
sons, nor was there any change in their pro-
grammes. There can be no doubt that the RSS
did service to the Hindu Society. In the areas
where there was the need for help and organisa-
tion, the young men of the RSS protected women
and children and strove much for their sake. No
person of understanding could have a word of
DESPERATELY
SEEKING CONGRESS
Inderjit Badhwar
Letter from the Editor
A
4 November 12, 2018
Nomatterhowmany
statuestheBJP
erectsortextbooks
itchanges,itcannot
erasehistory.Its
antecedentsare
indelible.The
forebearersofthe
BJPdidnot
participateinthe
QuitIndia
movement.Infact,
Patelashome
ministerbannedthe
RSSfollowing
Gandhi’sassassina-
tionin1948.The
BJPtendsto
overlookthisfact.

PrimeMinister
NarendraModihas
inauguratedwith
ecstaticfanfarethe
182-metre“Statue
ofUnity”ofPatel.
Symbolically,Patel
nowbecomesthe
politicalpatronsaint
oftheBJP.Theidea
seemstobeto
appropriatehimas
asymbolofthe
BJP’srootsinthe
nationalstrugglefor
freedom,andgive
realfleshand
bloodtoitsmodern
“nationalist”
agenda.
| INDIA LEGAL | November 12, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
objection regarding that. But the objectionable
part arose when they, burning with revenge,
began attacking Mussalmans. Organising
Hindus and helping them is one thing but going
in for revenge for its sufferings on innocent and
helpless men, women and children is quite anoth-
er thing.
“Apart from this, their opposition to the
Congress, that too of such virulence, disregarding
all considerations of personality, decency or deco-
rum, created a kind of unrest among the people.
All their speeches were full communal poison. It
was not necessary to spread poison and enthuse
the Hindus and organise for their protection. As a
final result of the poison, the country had to suf-
fer the sacrifice of the valuable life of Gandhiji.
Even an iota of sympathy of the Government or of
the people no more remained for the RSS. In fact
the opposition grew. Opposition turned more
severe, when the RSS men expressed joy and dis-
tributed sweets after Gandhiji’s death. Under
these conditions it became inevitable for the
Government to take action against the RSS.
“Since then, over six months have elapsed. We
have hoped that after this lapse of time, with full
and proper consideration the RSS persons would
come to the right path. But from the reports that
come to me, it is evident that attempts to put
fresh life into their same old activities are afoot. I
once again ask you to give your thought to my
Jaipur and Lucknow speeches and accept the
path I had indicated for the RSS. I am quite cer-
tain that therein lies the good of the RSS and the
country and moving in that path we can join
hands in achieving the welfare of our country. Of
course, you are aware that we are passing through
delicate times. It is the duty of every one from the
highest to the lowliest in this country to con-
tribute his mite, in whatever way possible, to the
service of the country. In this delicate hour there
is no place for party conflicts and old quarrels. I
{am} thoroughly convinced that the RSS men can
carry on their patriotic endeavor only by joining
the Congress and not by keeping separate or by
opposing. I am glad that you have been released.
I hope that you will arrive at the proper decision
after due consideration of what I have said above.
With regard to restrictions imposed upon you I
am in correspondence with the CP Government. I
shall let you know after receiving their reply.
“Yours
(SD.) VALLABH BHAI PATEL”
All who now gaze upon PM Modi’s Statue of
Unity must surely ponder the ironies it evokes.
UNI
SEEKING SARDAR’S
BLESSINGS?
Prime Minister
Narendra Modi at the
site of the “Statue of
Unity” in Gujarat on
October 31, 2018

ContentsVOLUME XI ISSUE52
NOVEMBER12,2018
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6 November 12, 2018
Battle of Ayodhya
With the Supreme Court deferring the title suit hearing, demands by the
Sangh Parivar for legislative intervention to build the Ram Mandir acquire
dangerous momentum
LEAD
12
Holy Smoke
A PIL filed cites recent cases of “holy men” committing sexual offences against
women to seek implementation of Vishakha guidelines in ashrams, madrasas and
other religious institutions
SUPREMECOURT
18
Quack
Factories
For the second time, the top court has dealt
a severe blow to the greedy managements
of mushrooming but illegal private medical
colleges in Kerala
20

Roadblock
to Heaven
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Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
Ringside............................8
Courts ...............................9
Delhi Durbar ...................10
International Briefs..........37
Media Watch ..................49
Satire ..............................50
The prime minister’s much-touted Char
Dham project runs into rough weather as
the Supreme Court stays a green tribunal
order which okayed it
46
Delhi’s
Dark Days
As Diwali nears, the top court has
cracked down on polluters in the National
Capital Region, but long-term measures
are needed to clean the toxic air
30
ENVIRONMENT
SPOTLIGHT
Chief Justice Ranjan Gogoi’s tenure
as patron-in-chief of the National
Legal Services Authority could herald
some long-due reforms in this prom-
ising scheme
38Needed, Aid Infusion
Browbeating the Judiciary
The Rajasthan High Court has fined insurance company ICICI
Lombard `10 lakh for impleading several judges in a case
28
Rethinking Defamation 40
In the light of numerous cases being filed against the media
today, is it time to consider whether this law is at all relevant
seeing as it curbs dissent and free expression?
COLUMN
Know Your Enemy 42
With the advent of the internet, cyber
crimes have increased. Victims need to
know that they should file a complaint fast
so that the stalker is arrested
Lot’s in a Name 44
The Uttar Pradesh government’s move to rename places and monuments betrays its
communal tilt and its need to exploit Hindutva sentiments for political dividends
Storm in Serendip
President Maithripala Sirisena has sworn in pro-China strongman
Mahinda Rajapaksa as prime minister, raising India’s concerns
34
GLOBALTRENDS
FOCUS
STATES
The Third Sin
A bench upheld an Orissa High Court order disqualifying a sarpanch
for having a third child though he gave the first for adoption
22
Challenge as Compulsion
The apex court has vetoed the Kerala government’s call that emplo-
yees donate a month’s pay for flood relief or else sign a no-consent
24
Gift Certificates
The top court agrees with the Kerala High Court’s decision that a gift
is complete only upon compliance with the conditions in the deed
26
COURTS

8 November 12, 2018
“
RINGSIDE
“We did not invoke
Section 7 in 1991 or
1997 or 2008 or
2013. What is the
need to invoke the
provision now? It
shows that govern-
ment is hiding facts
about the economy
and is desperate.”
—Former Finance
Minister P Chidam-
baram on the govern-
ment referring to
Section 7 of the RBI
Act for the first time
“Due to circum-
stances beyond my
control, I shall not
be joining Ahmeda-
bad University. I
wish AU well....”
—Historian and
author Ramachandra
Guha on Twitter,
after the ABVP
opposed the Ahmeda-
bad university’s deci-
sion to hire him
“...When you’re done
huffing & puffing
take a breath & hold
a mirror to your-
selves. My views are
mine. I don’t give two
hoots about yours.
I’m not going to clar-
ify what I meant....”
—Congress’s Divya
Spandana on Twitter
after her comment on
a picture of Modi with
the “Statue of Unity”
triggered a backlash
on social media
“...Women themselves
are aware when there
are restrictions, they
know when to go to a
temple and when
they should not go…
they have been keep-
ing these (restric-
tions) for millions
of years....”
—Union Minister
Uma Bharti on the
controversy over
women’s entry to the
Sabarimala Temple
“The ruling BJP
has indulged in so
many scams and
corruption that...I
got confused....In
Panama Papers
leak case, MP chief
minister has
no role.”
—Congress presi-
dent Rahul Gandhi
after alleging that
MP CM Shivraj
Singh Chouhan's
son was involved in
the Panama Papers
“If we had asked him
(Sardar Patel) if he
wanted a statue in his
name, he would have
said no. He grew up
in a humble back-
ground. He under-
stood the value
of money.”
—Dhirubhai Patel, the
grandnephew of
Sardar Patel, on the
“Statue of Unity”
“I don’t know how
far it’s true, but the
recent reports of
harassment has (sic)
really made the
BCCI look very poor-
ly….more so the
way it has been
handled….”
—Former cricket cap-
tain Sourav Ganguly
in an email to BCCI
office-bearers on sex-
ual harassment alle-
gations against BCCI
CEO Rahul Johri
“As long as there was a Hindu ruler in Jammu and
Kashmir, both Hindus and Sikhs were living safely.
However, soon after the kingdom ended, the Hindu
community witnessed a downfall. What is the condi-
tion now in Kashmir? Can Hindus, Sikhs living
there say the same thing now (that the Valley is still
peaceful)? Absolutely not....”
— UP Chief Minister Yogi Adityanath at a Sikh community
event in Lucknow

SC to welcome visi-
tors in guided tour
Six decades after it commenced
functioning from the present bui-
lding, the Supreme Court has ope-
ned its doors to visitors for guided
tours, which will be conducted every
Saturday. CJI Ranjan Gogoi launched
a web portal through which citizens
can book a one-hour guided tour of
the apex court. At present, only
lawyers, law interns, law students,
litigants and mediapersons are
allowed inside the court. The tour
will start from the main lawns within
the court precincts and will include a
trip to courtroom number one, the
chief justice’s court, the judges’
library and the court museum.
Thirty-one years after the Hashimpura
massacre near Meerut in Uttar Pradesh,
the Delhi High Court reversed a trial court
acquittal order and sentenced 16 former
personnel of the Provincial Armed
Constabulary (PAC) to life imprisonment.
The PAC officers were accused of rounding
up 42 Muslim youths from Meerut’s
Hashimpura locality, escorting them to the
outskirts of the city in an official vehicle,
and then gunning them down. Calling the
actions of the PAC personnel on May 22,
1987, “brutal and bone-chilling”, a bench
of Justices S Muralidhar and Vinod Goel
said: “This case points to the systemic fail-
ure that results, not infrequently, in miscar-
riage of justice.” The petitions in the Delhi
High Court were filed in appeal against a
trial court verdict which had, on March 21,
2015, acquitted the 16 former PAC person-
nel, citing lack of evidence.
16 cops get life for
Hashimpura massacre
—Compiled by India Legal Team
The chief justices of four
high courts, Justices
MR Shah, Ajay Rastogi,
Hemant Gupta and R Sub-
hash Reddy, were sworn in
as judges of the Supreme
Court. Justice Shah is cur-
rently the chief justice of
the Patna High Court; Just-
ice Rastogi, the Tripura
High Court; Justice Gupta,
the MP High Court; and
Justice Reddy, the Gujarat
High Court. The appoint-
ments have been made as
Justices Kurien Joseph and
MB Lokur are set to retire
in November and Decem-
ber, respectively, and
Justice AK Sikri will retire
in March 2018. The
appointment of the four
new judges will take the
Supreme Court’s current
working strength to 28
judges, as against the
sanctioned strength of 31.
The Supreme Court cautioned
state governments and high
courts for not taking adequate steps
to fill vacancies in the subordinate
judiciary across the country. A
bench headed by CJI Gogoi said: “If
any High Court can't do it, we will do
it. We will have a centralised system.
If you don't want us to do it, then
you do it.” The top court directed the
registrar generals of several high
courts to be present at the next date
of hearing on November 15.
States slammed for
judicial vacancies
The Supreme Court directed
the centre to furnish pricing
details of the 36 Rafale fighter
aircraft being purchased from
France, in a sealed cover, within 10 days. A
three-judge bench headed by CJI Ranjan
Gogoi said: “The court would also like to
be apprised of the details with regard to the
pricing/cost, particularly, the advantage
thereof, if any, which again will be submit-
ted to the court in a sealed cover.” The
bench also made it clear that “details in this
regard which may be considered to be
strategic and confidential may, at this stage,
be placed before the court and may not be
furnished to the learned counsel for the par-
ties or the petitioners-in-person”. The extant
order is in addition to the Supreme Court’s
earlier directive to the centre to share
details of the decision-making process that
led to the award of the Rafale deal to
Dassault Aviation, which has Anil Ambani’s
Reliance Defence as its offset partner for
the deal. The centre had last week filed the
papers concerning the decision-making
process with the Supreme Court’s registry
in a sealed cover.
Four judges elevated to Supreme Court
Submit
pricing
details on
Rafale: SC
Courts

Actor and self-proclaimed “Modi chamcha”,
Anupam Kher has often hit out at former Prime
Minister Dr Manmohan Singh. It thus came as
a surprise that the actor, who recently resigned
as chairman of Pune’s FTII, was full of praise
for Modi’s predecessor. Kher’s comments
came after he wrapped the shoot for The
Accidental PM, a movie in which he plays Dr
Singh. One assumes that Kher studied the
tenure of the former PM closely and didn’t rely
on accounts narrated by BJP leaders (his wife
Kirron is a BJP MP). Kher admitted: “I did
have my reservations before doing this film
and also wrongly judged you (Dr Singh) at
times but today after finishing the shoot and
having almost lived the role for more than a
year I can say with
utmost sincerity that
history will not mis-
judge you.” While
the movie may have
turned Kher into an
Accidental Fan of Dr
Singh, his com-
ments left his saffron
brethren seething,
calling him a traitor
on Twitter.
10 November 12, 2018
An inside track of
happenings in Lutyens’ Delhi
THE ACCIDENTAL FAN
The chaos that the government has sunk
the CBI into is likely to aggravate in the
coming months. The Supreme Court, on
November 25, is expected to hear the
petitions filed by CBI director Alok Verma
and special director Rakesh Asthana chal-
lenging the govern-
ment’s decision to
divest them of all
responsibilities and
appoint M Nages-
wara Rao as the
agency’s interim
chief. Power corridors
are already buzzing
with rumours on how
the government will
choose Verma’s suc-
cessor once his
legally secure two-
year tenure ends on
January 18. The collegium to appoint the
CBI director comprises the Prime Minister,
Chief Justice of India, Leader of Oppos-
ition and takes the decision after names in
the panel of officers shortlisted for the
post are vetted by the Chief Vigilance
Commissioner. The CVC, KV Chowdary
(far left), is also in the eye of a political
storm for allegedly perpetuating the cur-
rent crisis in the CBI, under pressure from
the government. The process of appoint-
ing a full-time CBI chief would have ideally
begun by December and had the current
crisis not hit the agency, Asthana would
have got the post, given Modi and Amit
Shah’s “faith” in him. Now, sources say
that the Congress, which would have
been represented in the collegium by
Mallikarjun Kharge (left) in his capacity as
the leader of the largest Opposition party
in the Lok Sabha, will either boycott any
discussion to select the next CBI chief or
try to block any name put forward by the
government. Sources say Asthana is
already out of the race but Modi will also
not be able to keep the CBI under an
interim chief indefinitely. The conundrum is
made more complex by the fact that given
the current mess, any officer proposed by
the centre for the role will be looked at
with suspicion.
The fallout from the implosion at
India’s elite investigating agency is
spreading its toxicity. The backstory to
the crisis is that Alok Verma’s appoint-
ment as CBI chief was pushed by NSA
Ajit Doval with Modi going along with
it. Now, the PM is reportedly miffed
with Doval. Then there is retired judge
Justice AK Patnaik, appointed by the
Supreme Court to supervise the probe
into the CBI. Within hours of his
appointment, he was getting calls from
people close to the powers that be,
attempting to influence the probe. The
bigger embarrassment, however, is to
do with interim chief Nageswara Rao
(above). The fact that an IG-level offi-
cer was chosen for the first time to
head the CBI raised eyebrows as did
his first move, to transfer 13 officers
loyal to Verma, but ghosts are return-
ing to haunt him. He has issued a
statement saying his wife did not com-
mit any financial irregularities, one of
the many charges against him, but the
Odisha-cadre IPS officer cannot deny
that in 1998, as vice-chairman of the
Berhampur Development Authority, he
was accused of making a communally
inflammatory speech, saying that the
authors of the Indian Constitution were
“pro-minority”. Then, at a public func-
tion, an Odiya newspaper quoted Rao
as saying: “Christians and Muslims
give primacy to their religion over the
nation. Taxes collected from Hindus
getting deployed for the benefit of
minorities is a violation of human
rights.” These and other statements
form part of a petition filed in the apex
court objecting to Rao’s appointment.
The petition mentions that when com-
plaints piled up about his communal
views, he was posted out immediately.
Rao is said to be close to Ram Madh-
av, the influential RSS leader, a rela-
tionship that may have something to
do with his unprecedented elevation.
TOXIC FALLOUT
UNCAGED PARROT

Delhi
Durbar
There is something about God’s Own
Country that brings out the worst in
the BJP’s top two: Prime Minister
Narendra Modi and party president
Amit Shah. Modi made no friends
when at rallies in the run-up to the
2016 Kerala assembly elections, he
kept repeating the falsehood about
Kerala’s social indices being worse
than sub-Saharan Africa, when people
with a better grasp of economics, like
Nobel Laureate Amartya Sen, have
said they are actually on a par with the
advanced nations of North Europe.
Last week, it was Shah (above
right) who was laid low by the foot-in-
the-mouth syndrome. With the swag-
ger of a gun-slinger, he arrived in the
state which is enjoying a brief respite
from the Sabarimala tussle and flexed
his muscles at the Marxist-led Left
government for trying to implement
the Supreme Court verdict on allowing
women entry into the hill-top shrine.
Shah threatened to pull down the duly
elected Pinarayi Vijayan (far left) gov-
ernment which enjoys a near two-
thirds majority in the assembly. The
CM wasn’t rattled. He merely taunted
Shah by referring to his rotundity and
said the BJP chief has to first haul
himself up—no easy task, Vijayan
emphasised—before trying to pull oth-
ers down. He left it at that. But the
people of the state, where the coun-
try’s first duly elected government was
ousted 61 years ago, were incensed.
As the outrage grew, the BJP went
into damage control mode, with KJ
Alphons, the Union minister, blaming a
local party leader for faulty speech
translation. The Marxists, of course,
are having the last laugh as Shah
memes go viral.
TOP TWO HIT
ROCK-BOTTOM
With five states going to
polls over the next two
months, Congress
President Rahul Gandhi
has been busy address-
ing party workers. Among
the promises that Rahul
has made to party workers is of put-
ting a stop to the Congress’ culture of
para-dropping candidates and
neglecting genuine workers during
ticket distribution. Rahul wants the Aya
Rams-Gaya Rams to work on
strengthening the party for at least five
years and then hope to get a ticket.
The promise augurs well for party
workers but has put the second-rung
leadership in a tight spot. Kamal Nath
(right) and Sachin Pilot (centre), Cong-
ress chiefs in MP and Rajasthan, res-
pectively, have been approached by
several BJP legislators who fear that
their party may not renominate them
for the upcoming polls and are look-
ing for a Congress ticket, if not in the
Assembly then the Lok Sabha polls.
Rahul’s stance has made it difficult for
Nath and Pilot to give any assurance.
Pilot recently orchestrated the induc-
tion of former Union minister Jaswant
Singh’s son, Manvendra Singh, into
the Congress. It was speculated that
Manvendra would not be renominated
by the BJP. Party sources say that the
real test of Rahul’s promise will be in
MP, Rajasthan and Telangana.
SELECTION
PROBLEMS
SAFFRON EDUCATION
Delhi’s Jawaharlal Nehru University has
been the unceasing target of right-wing
elements and the government. Its reputa-
tion for academic excellence has been
undermined by attacks on its leftist-lean-
ing student leaders and staff, some physi-
cal, and now, the government has turned
the screws further by its latest appoint-
ments to the staff—Indian-American
author and Hindutva ideologue Rajiv
Malhotra, former journalist and BJP MP
Swapan Dasgupta who wears his saffron
on his sleeve, and Subhash Kak, another
Indian-American computer scientist. The
trio has been appointed honorary profes-
sors. Malhotra is known to be a fiery
Hindutva activist who retired from entre-
preneurship to launch the Infinity Found-
ation. In 2015, Malhotra was accused of
plagiarism by historian Richard Fox Young.
Young accused Malhotra of a lack of aca-
demic integrity given his “repeated failure
to acknowledge sources”. Malhotra did
not deny the charges, instead saying on
Twitter that the academic standards
demanded by Young were “too high”. In
August this year, Malhotra courted contro-
versy in the wake of the Kerala floods
when he tweeted asking people to donate
to help Kerala Hindus. “Christians and
Muslims worldwide raising lots of money
to help mainly their own ppl & agendas,”
Malhotra had tweeted. Kak had issued a
letter welcoming Modi’s initiatives, in
response to a statement issued by leading
South Asian experts at US universities urg-
ing Silicon Valley industrialists to be cau-
tious about doing business with Modi.
Dasgupta is a regular on TV channels,
defending the Modi government. The
appointments follow a series of allegations
levelled against vice chancellor M
Jagadesh Kumar by the JNU academic
community for flouting norms to get candi-
dates close to the Sangh Parivar appoint-
ed at the university.

Lead/ Ayodhya
N a few days, Diwali would have
come and gone. Tall claims by gar-
rulous leaders of the RSS-BJP com-
bine who said that construction of a
Ram Mandir at the site of the de-
molished Babri Masjid in Ayodhya
would commence by Diwali, irrespective
of the fate of the title suit’s proceedings
in the Supreme Court, have once again
fallen flat.
However, with the Supreme Court
making it clear that resolving the
decades-old land dispute in Ayodhya is
not its priority, the demand from the
Hindu right for building a temple dedi-
cated to Lord Rama at his supposed jan-
mabhoomi has reached a crescendo. As
a desperate BJP seeks a renewed term at
the centre and in several states during
the forthcoming polls, its leaders have
begun aggressively attacking the apex
court, with party president Amit Shah
himself leading the charge.
The Supreme Court’s bench headed
by Chief Justice Ranjan Gogoi has def-
erred, till January at least, its pro-
nouncement on when arguments in the
Babri Masjid-Ram Janmabhoomi title
Whiletheapexcourthasdeferredhearingofthisdispute,thesaffronbrigadehasaggressively
demandedlegislativeinterventiontobuildtheMandirandtherebyenjoythepoliticalspoils
By Puneet Nicholas Yadav
I
The Mandir
UPPING THE ANTE
Antarrashtriya Hindu Parishad president
Praveen Togadia leads a march; (facing
page) high security alert in Ayodhya
UNI

suit can commence. The matter is un-
likely to be resolved before the general
election due in April-May 2019.
In their misplaced bravado, BJP
motor-mouths and their compatriots
from the extended parivar of the RSS
and Vishwa Hindu Parishad (VHP) have
urged Prime Minister Narendra Modi’s
government to bypass the litigation pro-
cess. They want an ordinance or a law
passed by Parliament in the upcoming
winter session to facilitate the construc-
tion of the Ram Mandir.
There is no denying that when it
comes to turning an adverse situation to
its advantage, the BJP trumps all its
political rivals, especially the Congress.
The delay in disposal of the title suit
should have ideally been a setback for
the BJP. Building a Ram Mandir has
been the party’s long unfulfilled poll
promise. Political expediency during the
2014 Lok Sabha campaign forced the
BJP to make only a fleeting mention of
the issue in the “cultural heritage” sec-
tion of its manifesto. But the absolute
majority Modi got in May 2014 embold-
ened his brothers-in-arms to make the
Ram Mandir a frontline issue soon after
the poll results.
T
he tectonic plates of India’s polit-
ical landscape have shifted since
then. The BJP no longer appears
invincible. The Modi government’s
repeated failures on the economic front,
undermining of constitutional institu-
tions and opaque decision-making have
all given the Opposition enough ammu-
nition to attack the BJP with. These can
be seen in the fracas in the CBI and
impropriety in the Rafale deal. And so,
it mustn’t surprise any political observer
that the BJP, under its electoral
Quagmire
WhileModihaskeptcharacteristically
silentontheCourt’sdecision,hehaslet
AmitShah,hisministersandotherSangh
Parivarmembersgoonabelligerent
blitzkriegagainstthejudicialprocess.
File Picture: Firoz Khan Shaifi/patrika.com

pundit, Shah, is assiduously harking
back to its “Mandir wahin banayenge”
rhetoric. The electoral dividends of this
communally polarising slogan are not
lost on the Modi-Shah duo.
While Modi has maintained his char-
acteristic silence on the Supreme Court’s
decision, he has allowed Shah, his min-
isters and other members of the extend-
ed Sangh Parivar to go on a belligerent
blitzkrieg against the judicial process.
Shah, of course, is cleverer than the rest
and is attacking the Court’s Sabarimala
verdict instead of specifically addressing
the Mandir issue.
Days after the Ayodhya hearing was
deferred to January, with Chief Justice
Gogoi being non-committal as to when
the hearings would commence, Shah, on
a visit to Kerala, offered his unsolicited
advice (or diktat) to the top court. Add-
ressing party workers and those oppos-
ing the landmark verdict that allowed
women to enter the Sabarimala temple,
Shah brazenly told the Supreme Court
to “take only such decisions that are
acceptable to the people”. The BJP’s
political rivals have been claiming that
the party wants to turn the Sabarimala
quagmire into its Ram Mandir issue for
southern India and so Shah was playing
to the protesters in Lord Ayyappa’s
gallery. But the timing of Shah’s message
made it clear that he was simultaneously
addressing a larger constituency—the
Ram bhakts elsewhere in the country.
O
thers who joined this circus—
RSS chief Mohan Bhagwat, BJP
MPs Subramanian Swamy,
Sanjeev Balyan, Vinay Katiyar, Giriraj
Singh and VHP international working
president Arun Kumar—were more
indiscreet with their belligerence against
the due process of law. They variously
demanded either an immediate ordi-
nance on building the Ram Mandir or
legislation to the effect to be passed in
the winter session. Giriraj Singh, a
Union minister, went to the extent of
issuing a veiled threat. He said that
“Hindus are running out of patience”
on the Ram Mandir issue and that he
feared “what will happen if Hindus
lose patience”.
While calls for an ordinance or legisla-
tion may make for good newspaper head-
lines, noisy television debate and toxic
political pow-wow, executing them isn’t
tenable for the government. The reasons
for this are many. Any such attempt
would strengthen the impression that the
Modi government has no respect for judi-
cial processes as the title suit is already
sub judice. Issuing an ordinance now,
when the winter session is less than two
months away, would also trigger a bar-
rage of criticism from the Opposition.
The BJP still doesn’t have a majority
in the Rajya Sabha and so, despite its
brute strength in the Lok Sabha, it will
not be able to have a bill on the issue
passed by Parliament. Bringing an ordi-
nance or a bill so late into its five-year
term will also open the Modi-Shah duo
and the BJP to the criticism of using
Lord Rama purely for electoral gains.
Congress leader P Chidambaram and
his party colleagues have already taken
this line by asserting that the BJP
remembers Ram Mandir only once
every five years. Also, the BJP leader-
ship has, in its poll manifesto and cam-
paigns till 2014, repeatedly said that it
would accept the Court’s verdict on the
title suit.
Further, an ordinance or bill, will be
Lead/ Ayodhya
WhileBJPpresidentAmitShah
chosetoattacktheCourt'sverdict
onSabarimalainsteadofdirectly
addressingtheissue,RSSchief
MohanBhagwat(clockwisefrom
aboveleft)andBJPMPs
SubramanianSwamy,GirirajSingh,
VinayKatiyarandSanjeevBalyan
havebeenmoreindiscreet.

immediately challenged in the Supreme
Court and will most likely be struck
down as void. This is because, as per the
Acquisition of Certain Area at Ayodhya
Act, 1993, the centre is only entitled to
be a statutory receiver of the disputed
land and must maintain the status quo
that existed when this legislation was
passed. The Supreme Court, while hear-
ing the challenge to the Ayodhya Act,
had upheld this status of the centre in
the M Ismail Faruqui verdict of October
24, 1994.
The Ismail Faruqui verdict is also
crucial to the current slugfest as it laid
out a problematic and somewhat
uncalled for observation: “A mosque is
not an essential part of the practice of
the religion of Islam and namaz (prayer)
by Muslims can be offered anywhere
even in open... there can be no reason to
hold that a mosque has a unique or spe-
cial status higher than that of the places
of worship of other religions in secular
India to make it immune for acquisition
by exercise of sovereign or prerogative
power of the state…”
This was challenged in the Supreme
Court and a reference for clarification by
a larger (seven-judge) bench was sought
on the observation that a mosque was
not integral to Islam and hence, not a
prerequisite for offering of prayers.
However, a three-judge bench headed
by then Chief Justice Dipak Misra (days
before he demitted office on October 2),
upheld the Ismail Faruqui judgment in
a 2:1 verdict and refused to refer it to a
larger bench. That the apex court up-
held the assertion that mosques were
not integral to Islam was immediately
lapped up by the Ram Mandir cam-
paigners and triggered the current
demands for an ordinance or legislation
to build a temple at the disputed site.
These temple votaries also made the
mischievous argument that while a tem-
ple dedicated to Lord Rama must be
made on his birthplace, a mosque that
has, even in the Supreme Court’s opinion,
no particular relevance in Islam can be
demolished and shouldn’t be resurrected.
However, those demanding the Ram
Mandir skipped that portion of the ver-
dict by Chief Justice Misra’s bench
which was inconvenient for their cause.
The verdict in M Siddiq, which had
challenged Ismail Faruqui, said unam-
biguously: “The disputed area is vested
in the Central government as a statutory
receiver with a duty to manage and
administer it in the manner provided in
the Act maintaining status quo… to take
all necessary steps to implement the
decision in the suits and other legal pro-
ceedings and to hand over the disputed
area to the party found entitled to the
same on final adjudication made in the
suits.” This line makes it clear that the
status quo on the disputed land cannot
be changed, even by an ordinance or
legislation.
Surely Modi, Shah and the battery of
seasoned lawyers within the central gov-
ernment know that there is no way of
subverting the legal process to expedite
building of the Ram Mandir. So why is
the BJP indulging in this charade? The
answer lies in political chicanery. A sen-
ior BJP leader told India Legal: “We all
know that we have to wait for the Sup-
reme Court’s verdict and can’t do any-
thing at the janmabhoomi until then.
Ram Mandir is an emotive issue and if
we can convince our voters that the
wait for it is nearly over, then all other
issues being raked up by the Oppo-
sition—Rafale, unemployment, commu-
nal violence, notebandi, etc—will
become redundant.”
A
sked if the voters may call the
BJP’s bluff, the leader said: “This
is all a matter of convincing the
people. If the government brings a Bill,
we know it will be stalled in the Rajya
Sabha and we can then tell the people
that while we were ready to even take on
the Supreme Court, the anti-Hindu
Opposition parties led by the Congress
failed them. If an ordinance is brought
and struck down by the Court, we will
still succeed in reinforcing our intent on
building the temple.”
Congress leader and senior advocate
Kapil Sibal, who got trolled for urging
the top court earlier this year to defer
the title suit’s hearing till next year but
finds himself vindicated by Chief Justice
Gogoi’s recent order, believes that the
BJP has tied itself in knots. “It is now
clear that the BJP only wants to use the
Ram Mandir as a vote-winning issue.
The Congress has repeatedly said that it
wants a legal resolution to the matter,
but the BJP has no respect even for the
judicial process. It did nothing on its
Mandir promise during its earlier
TheSupremeCourt’sbenchheadedby
ChiefJusticeRanjanGogoihasdeferred,
tillJanuary,atleast,itspronouncement
onwhenargumentsintheBabriMasjid-
RamJanmabhoomititlesuitcanbegin.
Anil Shakya

stint at the centre (1999-2004) and has
suddenly remembered Lord Rama now
after being in power for four and a half
years. The people can see through such
ploys. You can’t use a fake promise to
your advantage indefinitely,” Sibal told
India Legal.
That the Ayodhya dispute was always
a political and not legal one has been
clear ever since the saffron front began
asserting its electoral ambitions—first in
its Jan Sangh avatar and later as the
BJP. The Congress party can deny it
with all its collective fury and embar-
Lead/ Ayodhya
CONTEST OF PIETY?
Congress president Rahul Gandhi offers
prayers at Mahakaleshwar temple, Ujjain
1528: During the reign of Mughal
Emperor Babur, a mosque, the Babri
Masjid was built in Ayodhya on a site
which many Hindus consider the place of
birth of Lord Rama. The Babri Masjid
was named after Babur.
1853: First recorded violent clashes
broke out at the religious site.
1859: The colonial British administra-
tion created fences to separate worship
places; Muslims were allowed to use the
inner court while the Hindus used the
outer court.
1949: Idols of Ram Lalla are placed
surreptitiously under the central dome.
The government proclaimed the site
a disputed area and locked the gate.
1950: Gopal Simla Visharad (below)
filed the first suit in a Faizabad civil court
for rights to perform puja of Ram Lalla.
Paramhansa Ramachandra Das also
filed a suit for continuation of puja and
keeping idols in the structure.
1959: Nirmohi Akhara filed third suit.
1961: UP Sunni Central Wakf Board
filed fourth suit.
1984: Vishwa Hindu Parishad (VHP)
formed a committee to liberate the birth-
place of Lord Rama and build a temple.
1986: Muslims also formed the Babri
Mosque Action Committee after the dis-
trict judges issued an order to open the
gates of the mosque and allow Hindus
to worship there.
1989: The newly-elected Rajiv Gandhi
government allowed the VHP to perform
shilanyas for the Ram Temple on the dis-
puted land. The VHP laid the foundation
to build a Ram Temple adjacent to the
disputed mosque site.
1989: The four suits pending were
transferred to the High Court.
1990: The then BJP president, Lal
Krishna Advani, took out a cross-country
rathyatra to garner support for a Ram
temple at the site. He was arrested in
Bihar on October 23. The BJP withdrew
its support to the government.
1991: The Kalyan Singh government
in UP acquired 2.77 acres land in the
area and gave it on lease to the Ram
Janmabhoomi Nyas Trust. The Allahabad
High Court stopped any permanent con-
struction activity in the area.
1992: In July, several thousand kar
sevaks assembled in the area and the
work for maintenance of the temple start-
ed. This activity was stopped after inter-
vention of the prime minister. Meetings
started between the Babri Masjid Action
Committee and VHP leaders in the pres-
ence of the home minister. On October 30,
the Dharam Sansad of the VHP proclai-
med in Delhi that the talks had failed and
kar seva will resume from December 6.
Dec 6, 1992: The Babri Mosque was
demolished by a gathering of near
200,000 kar sevaks. Communal riots
across India followed.
Dec 16, 1992: The Congress govern-
ment at the centre, headed by PV
Narasimha Rao, set up a commission
of inquiry under Justice Liberhan.
1993: The government took over 67
acres of land around the area, sought
the SC's opinion on whether there existed
a Hindu place of worship before the
structure was built.
1994: The case was sent back to the
Lucknow Bench of HC.
Feb 27, 2002: The VHP declared
March 15 as the deadline to begin con-
Ayodhyacase:Suchalongjourney
UNI

“ItisnowclearthattheBJPonlywants
tousetheRamMandirasavote-winning
issue.TheCongresshasrepeatedlysaid
itwantsalegalresolutiontothematter.”
—KapilSibal,senioradvocate
rassment, but it has some hand in the
way things are now. The fact that the
dismissible rants have turned into a
deafening cacophony stems from a deci-
sion the Rajiv Gandhi government took.
On November 9, 1986, it allowed the
shilanyas of the Ram Mandir at the
disputed site. Further, then Prime
Minister PV Narasimha Rao’s foolish-
ness failed to prevent the demolition of
the Babri Masjid by kar sevaks on
December 6, 1992.
Now, as the polls near, the BJP can
aggressively reignite communal passion
with its Mandir politics and temple-
hopping, janeu dhari (the one who
wears a Brahminical thread) Congress
president Rahul Gandhi can tell Hindu
voters that he is the “better Hindu”,
irrespective of what his gotra may be.
The Ram Mandir, for now, is no
closer to becoming a reality than it was
when the Allahabad High Court gave a
please-all verdict on September 30,
2010, to divide the disputed 2.77-acre
land in Ayodhya equally between the
three feuding claimants with Ram Lalla
(the infant Lord Rama) himself being
one of the petitioners.
The Supreme Court now stands as
the final arbiter, preventing any
attempts at a hostile takeover.
struction of the Ram Temple. Hindu
activists returning from Ayodhya on a
train were attacked in Godhra. Nearly 58
people were killed.
Mar 2002: 1,000-1,500 people were
reportedly killed in the riots following the
Godhra incident in Gujarat.
Apr 2002: The Lucknow bench of
Allahabad High Court of three judges
began hearings in the case.
Jan 2003: Archaeologists started a
court-ordered survey to find out if a Ram
Temple existed on the site.
Aug 2003: The survey found evi-
dence of a temple beneath the mosque.
However, Muslim groups disagreed with
the findings.
Sept 2003: A court ruling charged
seven Hindu leaders and said they
should stand trial in the demolition case.
However, no charges were brought
against LK Advani on the ground that the
case related to the volunteers who had
razed the mosque. The same was
upheld by Allahabad High Court in 2010.
Nov 2004: A UP court ruled that the
previous ruling exonerating Advani should
be reviewed since he said in October
2004 that his party was unwaveringly
committed to building the Ram Temple.
July 2007: The apex court refused to
admit a review petition on the case.
July 2009: The Liberhan Commission
filed its report on the Babri mosque dem-
olition—17 years after it was set up.
Nov 2009: The commission’s content
was made public, which led to a huge
uproar in the parliament as the report
named many leading BJP politicians.
Sept 2010: Allahabad High Court’s
ruling gave one-third possession of the
site each to Muslims, Hindus and the
Nirmohi Akhara.
By a 2-1 majority verdict (in the ben-
ch of Justice SU Khan, Justice Sudhir
Agarwal and Justice DV Sharma), plain-
tiffs representing Lord Rama, the Nirmohi
Akhara and the Wakf Board were
declared joint title-holders of the pro-
perty. The bench asserted that the
portion under the central dome of the
demolished three-dome structure where
the idol of Ram Lalla had been kept in a
makeshift temple was the birthplace of
Lord Rama “as per faith and belief of
the Hindus”.
2010 The Allahabad High Court
upheld the decision of the trial court to
drop the charges against Advani.
Dec 2010: The Akhil Bharatiya Hindu
Mahasabha and Sunni Wakf Board
moved the Supreme Court, challen-
ging part of the Allahabad High
Court’s verdict.
2011: The CBI appealed against the
High Court order against dropping of
charges against Advani. Advani
and others sought dismissal of the CBI
petition, citing delay as the reason.
May 9, 2011: The Supreme Court
stayed the High Court order splitting the
disputed site in three parts; remarked
that the HC verdict was surprising as
no party wanted a division of the site.
Mar 21, 2017: The Supreme Court
said charges against senior BJP leader
Advani and other leaders cannot be
dropped and that the case may be
revived. The apex court said the Ram
temple is a sensitive issue and should be
settled out of court through discussion
between the two sides.
Dec 1, 2017: Thirty-two civil rights
activists file a plea challenging the 2010
verdict of the Allahabad HC in the title
suit.
Feb 8, 2018: The SC starts hearing
the appeals in the title suit.
Apr 6: Rajeev Dhavan files a plea in
the SC to refer the issue of reconsidera-
tion of the observations in its Ismail
Faruqui judgment of 1994—mosque isn’t
integral to Islam—to a larger bench.
Sept 27: SC declines to refer the
Ismail Faruqui verdict to a larger
Constitution bench; says title suit pro-
ceedings can commence on October 29.
Oct 29: Three-judge SC bench head-
ed by CJI Ranjan Gogoi says decision
on when arguments in the title suit may
commence and which bench would hear
them to be taken in January 2019.

Supreme Court/ Vishakha Guidelines
SLEW of sexual assault
charges against several
high-profile men, most
notably former journalist
MJ Akbar who was rece-
ntly forced to quit the
Union council of ministers, has once
again put the spotlight on the need for
organisations to strictly abide by the
laws and regulations laid down to deal
with such cases. It is in this context that
a PIL was filed in the Supreme Court by
advocate Maneesh Pathak praying that
the Vishakha guidelines be made appli-
cable to ashrams, madrasas, Christian
institutions and other religious and spir-
itual places.
The Vishakha guidelines came into
effect in 1997 when the Supreme Court
laid down formal guidelines for dealing
with sexual harassment at the workplace
following the gangrape of a social work-
er, Bhanwari Devi, from Bhateri in
Rajasthan. Its genesis lay in a Rajasthan-
based women’s rights group filing a PIL
in the apex court after the rape victim
failed to get justice despite a long legal
battle. The petition, filed by the women’s
group, Vishakha, and four other women’s
organisations in Rajasthan, against the
state of Rajasthan and the Union of
India, resulted in what are popularly
known as the Vishakha guidelines. It was
a landmark case because, on the 50th
anniversary of our independence, for the
first time ever, the highest court of the
land emphasised the need for laws on
sexual harassment and laid down guide-
lines to afford women protection from
predators at the workplace.
There were 12 guidelines that were
laid down as applicable to workplaces.
According to these, it is the responsibi-
lity of the employers or other persons
holding such position of authority to
ensure that any workplace or any other
institution is free from all kinds of sexu-
al harassment. The employers are also
expected to initiate and formulate a pro-
cedure that is to be implemented in case
of commission of any such offence, the
solutions, prosecution and other neces-
sary steps required thereof, for the pur-
pose of resolution.
A number of actions were included
within the ambit of sexual harassment.
They are: (a) physical contact and
advances; (b) a demand or request for
sexual favours; (c) sexually coloured
remarks; (d) showing pornography; (e)
A
THE UNHOLY QUARTET
(clockwise from left) Baba Ram Rahim, Bishop Franco, Asaram Bapu and Daati Maharaj
False Prophets
APILfiledintheSupremeCourtcitesrecentcasesof“holymen”sexuallyharassingwomen
toseekimplementationoftheVishakhaguidelinesinreligiousandspiritualplaces
By Sankalan Pal

any other unwelcome physical, verbal or
non-verbal conduct of a sexual nature.
In his PIL, Pathak said religious places
constitute part of workplace as many
women are employed there besides
those working on a voluntary basis. The
petition sought collection of data on
religious institutions where women
practise and profess religion so that
effective steps can be taken on the basis
of the guidelines to provide assistance to
victims of sexual assault. “If the Visha-
kha guidelines are extended to religious
institutions, it would assist a lot in redu-
cing sexually related crimes against
women at religious places by various
religious gurus or leaders of that partic-
ular institution,” the petition said.
The petition also asked the centre to
direct the authorities concerned of the
particular area, where such religious
institutions are situated, to do back-
ground verification of religious leaders,
especially “new upcoming babas” and
heads of madrasas and churches. The
petition also prayed that directions be
issued to the centre to provide adequate
measures for women’s safety at religious
places by having periodic checks con-
ducted by state women’s panels.
I
n religious and spiritual places,
many women practise and profess
their religion and it is of utmost
necessity that their safety is taken into
consideration and the 1997 judgment is
made applicable to religious institu-
tions. This will act as a deterrent and
reduce sex-related crimes in religious
places. In recent times, a lot of self-
proclaimed babas, gurus, religious
heads in madrasas, churches, etc, have
been accused of sexually harassing
women by making untoward advances
towards them. These religious preach-
ers simply abuse their position of
authority and the women who approach
them with a pious mindset become
aghast when they are subjected to sexu-
al assault and physical intimidation.
Advocate Pathak cited several recent
examples to buttress his demand.
Among them were the Kerala nun rape
case in which the accused is a bishop,
the Daati Maharaj rape case, the cases
involving Baba Ram Rahim and Asaram
Bapu. In Pune, a maulana of a madrasa
was reportedly accused of harassing a
large number of girl students. What is
most shocking is that such incidents are
happening in a place where Muslim par-
ents send their children to pursue
Islamic studies, in the belief that the
maulanas will inculcate the best Islamic
values in their children. Even the Kerala
case, where a nun was raped by a bishop
against whom the police was initially
reluctant to file a case, sent shockwaves
through the country. Though the bishop
is now out on bail, a priest who testified
against the bishop was found dead last
week under mysterious circumstances.
These “spiritual leaders” had millions
of devotees, a majority of them ordinary
womenfolk. Such was their blind faith
that many of them even left home and
hearth to stay in the ashrams, donating
large amounts of money in their search
for spiritual solace. Their worlds soon
crashed as they discovered the true nat-
ure of the men whom they considered
God. What is surprising is that some of
these godmen continue to retain their
hold over followers despite being found
guilty and being incarcerated. Asaram
Bapu and Daati Maharaj are examples
of fraudsters masquerading as godmen
who have managed to retain their grip
over followers even while lodged in jail.
In his petition, Pathak said that keep-
ing in view the many sexual exploitation
cases and the number of religious leaders
being exposed, the women are in a state
of paranoia about visiting these institu-
tions. According to the Vishakha guide-
lines, right to life and liberty, right to
freedom of expression and right to
equality are the fundamental rights of
every woman as guaranteed by our
Constitution. Due to the rising number
of such cases, it is necessary that proper
rules and policies are framed according
to the Vishakha guidelines so that
women feel safe in religious places.
A religious place is one which people
visit to worship, learn and profess their
respective religions. Sadly, the flag-bear-
ers of these institutions are the ones
who are increasingly indulging in das-
tardly attacks on unsuspecting followers.
In a country like India where a majority
of the people—be they Hindu, Muslim,
Christian, Sikh or others—are religious
by nature and where women form a
bulk of the faithful, it is high time that
their safety is taken into consideration
and the Vishakha guidelines are proper-
ly implemented.
So far, most women survivors have
refrained from coming out in the open.
But in the three weeks since the #MeToo
movement hit India, women from across
the country have been coming forward
to narrate their stories of exploitation.
In the process, a minister has lost his
job, many high-profile journalists have
been forced to quit, big-budget films
have been shelved, big-ticket contracts
have been cancelled and a noted writer
has had to apologise to the girl he alleg-
edly made a pass at—and to his wife too.
It’s the godmen’s turn next.
TheVishakhaguidelineswerelaiddown
bytheSCin1997followingthegangrape
ofasocialworker,BhanwariDevi(above),
fromRajasthan.Awomen’srightsgroup,
Vishakha,hadfiledaPILinthiscase.

Supreme Court/ Medical College Admissions
cations, the Court in its judgment said
that if substandard medical education is
allowed, it would pose a threat to the
right to life. “Allowing medical colleges
which have no infrastructure to provide
quality education would be against the
interest of the society,” it said.
The Supreme Court also strongly
criticised the High Court for giving a
general suggestion that if the medical
colleges had any inadequacies or were
found wanting in any manner, they
should be given the opportunity to over-
come it. The apex court pointed out that
giving such directions without conduct-
ing an inspection would be illegal. The
Court said that ordering an inspection
and at the same time allowing the gov-
FLOUTING RULES
(Below) The PK Das Medical College,
Palakkad, one of the medical colleges whose
admission process was annulled by the SC
Crackdown on Quack Factories
Forthesecondtimeinasmanymonths,thetopcourthasdealtasevereblowtothegreedy
managementsoftheseinstitutionsinKerala
By NV Ravindranathan Nair in Thiruvananthapuram
hile sending a
strong message to
the mushrooming
private medical
colleges in Kerala
that it would not
tolerate irregularities in admissions and
the education imparted, the Supreme
Court cancelled the admission process
that had been completed in four self-
financing private colleges. It also came
down heavily on unscrupulous manage-
ments that look at admissions to med-
ical colleges as a quick and surefire
way to amass money while churning
out quacks.
For the 550 students of the DM
Medical College, Wayanad, PK Das
Medical College, Palakkad, SR Medical
College, Varkala, and Al-Azhar Medical
College, Thodupuzha, the future has
never looked bleaker.
The apex court’s order came on a
W
plea by the Medical Council of India
(MCI) that challenged an order of the
Kerala High Court which had granted
approval for admissions to these colleges
even when they did not follow the nor-
ms. The MCI contended that they had
failed to meet the necessary guidelines
in providing sufficient infrastructure, an
argument which the apex court upheld.
Earlier, the top court had on Septem-
ber 5 stayed the Kerala High court order
granting affiliation to these colleges.
The colleges told the Court that they
had almost filled the seats through the
mop-up counselling and requested that
the students be allowed to continue
their studies. However, a bench com-
prising Justices Arun Mishra and Vineet
Saran observed that the admissions of
the students to these colleges be termi-
nated. Making strong observations
against the trend of medical colleges not
following any norms or meeting specifi-

ernment and MCI to have a free hand to
take a decision on finding problems
would endanger the future of students.
Meanwhile, Commissioner of
Entrance Examinations PK Sudheer
Babu said steps would be taken to re-
fund the fees remitted by students who-
se admissions were cancelled by the
Supreme Court. He said the list was
ready and the refund would be made in
November. “Cheques for the amount
paid would be sent to their postal add-
ress or the amount would be transferred
through account transfer,” he clarified.
E
arlier, the MCI had denied per-
mission to these colleges to make
admissions on the ground that
they had failed to fulfil the necessary
norms. However, the colleges went
ahead with admissions after securing a
favourable verdict from the High Court.
Following this, the MCI moved the Sup-
reme Court. During the trial, the apex
court also observed that the students
may lose their seats, while staying the
admissions to the colleges.
“As the admission process is com-
plete and the academic session has al-
ready begun, the students have few
options. They had repeatedly been asked
to appear for counselling when admis-
sions to other medical courses like Ayur-
veda were being held. But none of them
turned up. They were under the impres-
sion that the managements would get a
favourable order from the apex court,”
said a parent of a student. Managemen-
ts will now have to return the fees to the
students and the latter will have to wait
for the next entrance examination.
The state government has few op-
tions before it as earlier legislation to
save the students of Kannur and Karuna
medical colleges, similarly hit by prom-
ulgating an ordinance, was quashed by
the Supreme Court. Ironically, that ordi-
nance was promulgated by the state
governor, P Sathasivam, a former chief
justice of the Supreme Court. The apex
court, while quashing the bill on Sep-
tember 5, had said that the ordinance
was unconstitutional.
On March 22 last year, the Supreme
Court had cancelled the admission of
180 students in these two colleges, citing
irregularities in the admission proce-
dure. The Kerala government then
promulgated the ordinance to regularise
the admissions. The assembly had sub-
sequently passed a bill in April this year
to bypass the apex court order. “The
government tried to interfere in the dis-
cretion of courts. The Ordinance was
brought to protect students who
obtained MBBS seats through irregular
means,” the Supreme Court observed
while quashing the ordinance.
The government’s claim was that it
took a favourable stand towards admis-
sions, made without the knowledge of
the admission supervision committee,
for the sake of students. But from the
High Court to the Supreme Court, ver-
dicts were delivered against the Kannur
and Karuna medical colleges that grant-
ed admission to students against rules.
The LDF government led by Chief
Minister Pinarayi Vijayan had earlier
passed the Kerala Professional Colleges
(Regularisation of Admission in Medical
Colleges) Bill, 2018, to regularise the
admissions to self-financing medical
colleges in 2016-17. It may be noted that
when the Bill was introduced in the
assembly, the Opposition UDF also had
joined the LDF in unanimously passing
it as both the ruling and opposition
fronts were acting to serve the interest
of these two medical colleges.
The lone voice of protest belonged to
Congress MLA VT Balaram who raised
the question of morality and illegality
in bypassing the apex court verdict
through a piece of legislation only to
protect the merchandising of medical
education.
In an earlier order, the Supreme
Court had said that the ordinance bla-
tantly seeks to nullify the binding effect
of the order passed by it. “Prima facie it
was not open to declare this court’s
order as void or ineffective as was
sought to be done by way of ordinance,”
the Court had then said.
In trying to safeguard the interests of
the avaricious managements of private
medical colleges, the state government
has virtually played with the lives of 730
young men and women.
FUTURE TENSE
Examinees seeking guidance at a NEET
help-desk set up in Thiruvananthapuram by
the Kerala government
UNI

Supreme Court/ Disqualifying the Sarpanch
HE Supreme Court, while
promoting population con-
trol, upheld the disqualifi-
cation of a sarpanch in
Odisha on the grounds of
having more than two chil-
dren, even though one of them was
given up for adoption.
The disqualification has its basis in
the Orissa Gram Panchayats Act, 1965.
This Act lays down a provision under
Section 25(1)(v) and Section 25 (2): “A
person shall be disqualified for being
elected or nominated as, a Sarpanch or
any other member of the Grama
Panchayat constituted under this Act, if
he, ... has more than two children.”
The disqualification was challenged
by the sarpanch who had been elected,
but after election, he had had a third
2002. A third child was born to the
appellant on August 3, 2002. The first
child was given in adoption way back on
September 10, 1999.” The third child
was born after he became a sarpanch.
His main contention before the
bench of Chief Justice Ranjan Gogoi,
and Justices Sanjay Kishan Kaul and
KM Joseph was that as the first child
was given up for adoption, he ceased to
be a member of the sarpanch’s family
and had become a member of the fami-
ly of the adoptive parents. The sarpanch
relied on Section 12 of the Hindu
Adoptions and Maintenance Act, 1956,
and submitted that even though he was
the biological father of the three chil-
dren; in reality, he was the father of
only two of them and hence, the bar on
three children would not apply to him.
T
One Child
Too Many
Inasternwarningtoelected
representatives,theapexcourtupheld
anOrissaHighCourtjudgmentwhich
disqualifiedasarpanchforhavinga
thirdchildeventhoughthefirstone
wasgivenforadoption
By Naved Ahmed
child. This prevented him from being a
sarpanch. The Orissa High Court
upheld the rule of disqualification and
he approached the apex court.
Minasingh Majhi, the appellant in
this case, approached the Supreme
Court after he was aggrieved by the
Orissa High Court’s decision. The
Supreme Court noted that the sarpanch
“had two children born to him on
September 6, 1995, and October 12,
1998, respectively. He had filed his nom-
ination and was elected in February
ThesarpanchhadreliedonSection12of
theHinduAdoptionsandMaintenance
Act,1956,andsaid,thoughhewasthe
biologicalfatherofthreechildren,inreali-
ty,hewasthefatherofonlytwoofthem.

His contention that the Orissa Gram
Panchayats Act wouldn’t apply to him
was rejected by the apex court which
said that the purpose of the said legisla-
tion was undoubtedly to put a restric-
tion on the number of children elected
members could have. The bench said:
“The legislative emphasis is on the
number of children that a prospective
elected member has given birth to and
not whether under provisions of differ-
ent statutes in force, including the
Hindu Adoptions and Maintenance Act,
1956, children born to such a person
can be excluded from the family of the
prospective elected member.”
The Supreme Court further clarified
that emphasis should be placed on the
number of children a prospective elect-
ed member had given birth to and not
whether the children could be excluded
from the family by way of different
statutes. The Court further said that
Section 2(2) of the Hindu Adoptions
and Maintenance Act would not apply
to the appellant as he belonged to a
Scheduled Tribe.
The bench said: “There has been no
challenge to the provisions of Section
2(2) of the 1956 Act before the High
Court or even before this Court. We will,
therefore, proceed on the basis that the
provisions of the 1956 Act do not apply
to the case of the appellant in which
event the contention advanced that the
adopted child, under the Act, had
ceased to be a member of the appellant’s
family, having become a member of the
family of the adoptive parents, will have
no legs to stand.” The Court dismissed
the appeal, reiterating the High Court’s
order of disqualification.
The apex court has, thus, set an
example of putting checks on population
control by letting people know the
implications of having more children.
India, being the second most populated
country and having about 17 percent of
the total world population, needs to take
serious measures in this regard. Putting
these restrictions on elected leaders is
the right place to start. If they want to
lead, they better lead by example. The
purpose of the law so enacted was to
produce a “role-model effect” among the
locals. This “two-child policy” had ini-
tially been adopted by 11 states, but now
remains effective in only seven states.
Disqualification in fighting elections
is not the only measure taken by govern-
ments for population control. There are
many disincentives for those having
more than two children. These include
refusal of government rights for the
third child, denying healthcare for the
mother and children and not providing
supplements necessary for children.
However, while India cannot adopt
strong-arm measures like China to curb
its population, some of its approaches
need to be critically analysed. Massive
public campaigns can help create aware-
ness about smaller, happier families ins-
tead of resorting to such bars as the
sarpanch faced. While elected leaders
may try to manipulate the laws, the ju-
diciary is there to enforce these rights.
PRACTICE WHAT YOU PREACH
The Orissa Gram Panchayats Act restricts the
number of children an elected member of the
body can have to two
Otherdisincentivesforthosehaving
morethantwochildreninclude
refusalofgovernmentrightsforthe
thirdchildanddenyingsupplements
necessaryforchildren.
publishyourarticles.net

Supreme Court / Kerala Flood Relief
FTER Kerala was ravaged
by floods in August this
year, Marxist Chief Mini-
ster Pinarayi Vijayan
unveiled a slew of meas-
ures to mop up funds for
relief and rehabilitation. They included
cancellation of several State-sponsored
festivals and tourism carnivals that
normally happen between September
and March, the peak tourist season
in Kerala.
He also came up with another scheme
which his government claimed was the
most innovative of the lot. Called “Salary
Challenge”, it sought that all govern-
ment employees donate a month’s gross
salary to the Chief Minister’s Distress
Relief Fund (CMDRF). Those who did
not want to contribute had to furnish a
written no-consent declaration.
Last week, the Supreme Court
agreed with the Kerala High Court that
it wasn’t a fair deal and dismissed the
state government’s appeal against an
HC order staying the Salary Challenge.
In a major blow to the CM, the Court
observed that the government order
(GO) issued on September 11, 2018,
amounted to forcing an employee to
heap humiliation upon oneself by sub-
mitting such a no-consent declaration.
The Kerala NGO Sangh, an affiliate
of the Bharatiya Mazdoor Sangh (BMS),
was the petitioner seeking to quash
Clause 10 of the GO stipulating guide-
lines for the Salary Challenge. The
bench, comprising Justices Arun Mishra
and Vineet Saran, took a dig at govern-
ments’ routine practice of diverting
funds meant for relief measures, and
asked “what was the guarantee that
salary so collected would
be used only for relief
operations?”
In the impugned
order, a division bench of
the Kerala High Court
had said that Clause 10
of the GO on Salary
Challenge amounted to
compulsion of emplo-
yees to contribute one
month’s salary to
the CMDRF.
Now, with the land-
mark verdict by the
Supreme Court on
the government’s appeal against the
High Court’s stay, the state government
has to issue a fresh GO modifying the
earlier one.
The court order has come as a slap in
the face of Chief Minister Vijayan and
Finance Minister TM Thomas Isaac
who had been coercing the employees
to submit a no-consent declaration to
avert donation of their salary. Speaking
to India Legal, NGO Sangh state
General Secretary SK Jayakumar said
the apex court order was a landmark
one as it would restore the prestige of
the government employees.
“Both the chief minister and the
finance minister were trying to coerce
the government employees. Our stand
was that employees should be allowed to
contribute as much as they can afford,”
Jayakumar said. He added that while 60
A
Held To Ransom
TheCourtvetoesthestategovernment’s“SalaryChallenge”thatvirtually
compelledallemployeestodonateamonth’swagesforfloodvictims
By NV Ravindranathan Nair in Thiruvananthapuram
PLAN SCUTTLED
Chief Minister Pinarayi
Vijayan talks to flood victims
at a relief camp near
Chengannur in Kerala
Courtesy: Big News Live

percent of the employees were apolitical,
pressure was being mounted to make
them contribute.
Moreover, many of the government
employees themselves were victims of
the flood and struggling to rebuild their
lives, and so compelling them to join the
Salary Challenge was unfortunate. In
some families, where both husband and
wife serve the government, both would
be forced to contribute.
The government’s contention before
the Court was that there had been no
compulsion on the employees to con-
tribute to the CMDRF and the insis-
tence was only on providing the no-
consent affidavit if they didn’t want to
donate. But NGO Sangh argued that the
compulsory nature of the GO amounted
to extortion, and publicising the list of
those who submitted no-consent affi-
davits amounted to public humiliation.
They were apprehensive that non-
consent affidavits would invite the wrath
of the government and the employees
would have to face hostile treatment.
State Finance Minister Isaac admit-
ted that the apex court verdict on Salary
Challenge was a setback to the govern-
ment. He said the government would
soon amend its order in view of the ver-
dict of the Supreme Court. “The apex
court verdict is a huge setback to us.
However, the government will soon
amend the order and issue a fresh one.
The employees’ contribution to the
CMDRF will be deducted only from
those who have given the consent to do
so,” he said.
Ever since the floods hit the state, the
chief minister and the finance minister
were mounting pressure on employees
who were reluctant to part with their
salaries. At one stage, the chief minister
even asked what answer employees
would give their children if they were
asked about their contribution for the
state’s rebuilding.
T
he chief minister has also been
critical of the centre for not giv-
ing the nod to accepting contri-
butions from countries like the UAE and
Thailand. The prime minister had told
the chief minister that the government’s
policy since 2004 was against accepting
financial assistance from other coun-
tries. However, the prime minister had
assured the chief minister of all possible
financial assistance to the state to deal
with the crisis. Already, the centre and
some central government institutions
had granted over `1,500 crore worth of
assistance. Further, sufficient funds had
been offered for reconstruction of the
National Highways. Surface Transport
Minister Nitin Gadkari had announced
another `450 crore more for the recon-
struction of roads. Earlier, he had ann-
ounced `250 crore to repair the dam-
aged roads. Assurance also had been
given of help for farmers and those who
lost houses that the houses would be
reconstructed by bringing them under
respective central government schemes.
The chief minister has been critical
of rejecting the state ministers’ plea to
allow them to visit other countries to
garner funds from Indians settled
abroad. Though the chief minister was
allowed to visit the UAE last week, at a
function attended by the diaspora he
lashed out at the centre’s attitude
towards the state. The CM’s open criti-
cism of the centre in the presence of the
members of the UAE ruling royalty
raised many an eyebrow.
Vijayan had earlier claimed that the
UAE had offered to make a contribution
of `700 crore but there was no official
confirmation from the Emirates on the
issue. The state finance minister too has
been critical of the centre for not allow-
ing the state to accept funds from out-
side. Terming the central assistance of
`600 crore sanctioned immediately dur-
ing the floods as “a mere pittance”, he
stated that the centre was not allowing
the state to collect assistance from
abroad as it had political differences
with the LDF government.
Though the CMDRF has already
received around `2,000 crore, a majori-
ty of the flood victims have received only
`10,000 each as assistance. While the
United Nations’ estimate of the loss
incurred in the flood stands at `31,000
crore, the state government’s assessment
is nearly `50,000 crore.
The apex court order doesn’t leave
the state any poorer. It has already col-
lected `1,500 crore from the 2.88 lakh of
the 4.81 lakh government employees
and teachers who had agreed to the
Salary Challenge.
Thebench,comprisingJusticesArunMishra(left)andVineetSaran,tookadigat
governments’practiceofdivertingfundsmeantforreliefmeasures,andasked“what
wastheguaranteethatsalarysocollectedwouldbeusedonlyforreliefoperations?”

Courts/ Gift Deed
OURTS were recently
gripped by a case involving
a gift given by a donor to a
donee. The case came up
before the Kerala High
Court but, unhappy with its
verdict, the petitioner approached the
Supreme Court. The petitioner, Sarojini
Amma, a 74-year-old widow, had exe-
cuted a gift deed in favour of her
nephew, Sreekumar. Although it was
clear from the gift deed that it would
take effect only after Amma and her
husband’s death, on the condition that
Sreekumar would look after them,
Amma cancelled the deed in 1999. This
was challenged before the Kerala High
Court which dismissed the suit.
The High Court had relied on
Reninkuntla Rajamma v K.
Sarwanamma where it was established
that the donor had reserved the right to
enjoy the property during her lifetime
without it affecting the validity of the
deed. For a valid gift deed, transfer
and acceptance are the key ingredi-
ents. The Court also held that a
gift has to be accepted by or on
behalf of the donee and such
acceptance could be made dur-
ing the lifetime of the donor
till the time he is capable of
accepting it. In the present
case, it was an incomplete
gift as the title remained
with the donor. Therefore,
the donor has a right to
cancel the deed as the
gift would take effect after
her death and she cancelled it
No Free Lunches
Inaninterestingcase,theapexcourthasclarifiedthatagiftofpropertycomeswithout
considerationandaconditionalgiftiscompleteonlywhenthosestipulationsaremet
By India Legal Bureau
C
TEST OF VALIDITY
Justices Arun Mishra
(right) and Indira
Banerjee reiterated
that a gift, in order
to be valid, must
satisfy the statutory
conditions
Photos: Anil Shakya

while she was alive.
When the case came up before the
Supreme Court, a bench of Justices
Arun Mishra and Indira Banerjee said:
“We are in agreement with the decision
of this Court in Reninkuntla Rajamma
that there is no provision in law that
ownership in property cannot be gifted
without transfer of possession of such
property. However, the conditions
precedent for a gift, as defined in
Section 122 of the Transfer of Property
Act, must be satisfied. A gift is a transfer
of property without consideration.
Moreover, a conditional gift only
becomes complete upon compliance of
the conditions in the deed.” In the pres-
ent case, the condition was that the gift
would take effect only after the death of
the donor.
The Court also said that the deed of
transfer was executed for consideration
and was in any case subject to the con-
dition that the donee would look after
the woman and her husband and that
the gift would take effect after the death
of the donor. “We are thus constrained
to hold that there was no completed gift
of the property in question by the appel-
lant to the respondent and the appellant
was within her right in cancelling the
deed,” the bench said.
While a gift deed, once executed,
cannot be cancelled unilaterally, it can
be done with mutual consent of the par-
ties (i.e. the donor and the donee) and
has to be properly stamped and regis-
tered. A gift may also be subject to the
provisions of the Transfer of Property
Act, 1882. Section 26 of the Act, which
deals with fulfilment of conditions, pro-
vides that: “Where the terms of a trans-
fer of property impose a condition to be
fulfilled before a person can take an
interest in the property, the condition
shall be deemed to have been fulfilled if
it has been substantially complied with.”
A
ccording to the Act, the defini-
tion of gift under Section 122 is
transfer and acceptance of a
moveable or immoveable property by
the donor to the donee. The process for
transfer has been explained in Section
123 of the Act. It provides that: “For the
purpose of making a gift of immoveable
property, the transfer must be effected
by a registered instrument signed by or
on behalf of the donor, and attested by
at least two witnesses. For the purpose
of making a gift of moveable property,
the transfer may be effected either by a
registered instrument signed as afore-
said or by delivery. Such delivery may be
made in the same way as goods sold
may be delivered.”
That would only be possible when
the donor is divested of his title and the
donee becomes absolute owner of the
property. Section 126 of the Act deals
with revocation or suspension of a gift.
It says: “The donor and donee may
agree that, on the happening of any
specified event which does not depend
on the will of the donor, a gift shall be
suspended or revoked; but a gift which
the parties agree shall be revocable,
wholly or in part, at the mere will of the
donor, is void wholly or in part, as the
case may be. A gift may also be revoked
in any of the cases (save want or failure
of consideration) in which, if it were a
contract, it might be rescinded. Save as
aforesaid, a gift cannot be revoked.
Nothing contained in this section shall
be deemed to affect the rights of trans-
ferees for consideration without notice.
Illustrations: (a) A gives a field to B,
reserving to himself, with B’s assent, the
right to take back the field, in case B
and his descendants die before A. B dies
without descendants in A’s lifetime. A
may take back the field; (b) A gives a
lakh of rupees to B, reserving to himself,
with B’s assent, the right to take back at
pleasure `10,000 out of the lakh. The
gift holds goods as to `90,000, but is
void as to `10,000, which continue to
belong to A.”
It is obvious that one should not look
a gift horse in the mouth.
Thecasefirstcameup
beforetheKeralaHigh
Court(left),whichnoted
thatforavalidgiftdeed,
transferandacceptance
arethekeyingredients.It
alsoheldthatagifthasto
beacceptedbyoron
behalfofthedoneeand
suchacceptancecouldbe
madeduringthelifetimeof
thedonortillthetimeheis
capableofacceptingit.

Courts/ Impleading Judges
CICI Lombard bit off more than it
could chew when it tried to initiate
proceedings against judges in a case.
The Rajasthan High Court took
note of this move and saw through
the insurance company’s attempt to
influence the outcome of a case by
impleading several district judges as
parties to a petition filed by it. One of
the judges had been elevated to the
High Court. The High Court ruled that
the insurance company had committed
abuse of the process of law and thus
directed it to deposit a penalty of `10
lakh with the Legal Services Authority
within a month.
In its petition, ICICI Lombard Gen-
eral Insurance Company had impleaded
compensation commissioners in various
districts in Rajasthan. The High Court
said that the impleadment had been
made without making any specific alle-
gation against any individual judge and
the act was done to mislead the Court.
When this fact was raised by the respon-
dents, the petitioners tried to withdraw
the petition, but the Court refused the
withdrawal plea and said that “the
forum of preferring the writ petition has
been seriously misused and abused by
the petitioners”.
The company had filed a petition in
the Court impleading several employees’
compensation commissioners, and ques-
tioned their legal qualifications. It also
asked the Court to restrain the officers
from discharging their duties.
A single-judge bench of Justice
Sanjeev Prakash Sharma fined the
insurance company `10 lakh and said
that the “action of the petitioner compa-
ny amounted to abuse of process of law”,
and accordingly dismissed the writ peti-
tion by imposing penal cost of `10 lakh.
The bench further noted: “Having
filed such a writ petition, the petitioner
company would not raise a reasonable
excuse before the concerned compen-
sation commissioners not to hear cases
in relation to grant of compensation
against their company and would thus
be browbeating and wrongfully
influencing the employees and compen-
sation commissioners posted at
various districts.”
The Court dismissed the petition,
understanding the true motive of the
company in trying to abuse the process
of law and order. This order is a huge
blow to companies which use their
resources and power to engage in dilato-
ry tactics or seek to influence powerful
people. These tactics extend the already
lengthy proceedings in courts and are
detrimental for the common man who
undergoes detailed scrutiny of his insur-
ance claims. If companies use such tac-
tics, the common man will have nothing
to hope for.
Thankfully, the Court, as a guardian
of the rights of people, has often come
to the rescue of the common man.
Abuse of Law
TheRajasthanHighCourthasfinedICICILombard
`10lakhforimpleadingseveraljudgesinacase
By Naved Ahmed
JusticeSanjeevPrakashSharma(above)
oftheRajasthanHighCourtobserved
thatICICILombardhadtriedtobrowbeat
andwrongfullyinfluencethecompensa-
tioncommissioners,andthuscommitted
abuseoftheprocessoflaw.
I

Environment/ Pollution in NCR
VERYONE knew pollution
would choke those living in
the National Capital Region
(NCR) before, during and
after Diwali. But little was
done to offset it despite the
torture residents went through last year.
Obviously, no lessons were learnt.
However, a series of directions by the
Supreme Court are haunting both the
state and central governments.
Sources told India Legal that the
Narendra Modi government is likely to
challenge some of these directions as it
cannot afford to fight the rising anger
among the electorate with both state
and parliamentary elections round the
corner. As 17 areas in Delhi have touch-
ed severe air quality levels, a Supreme
Court bench headed by Justice Madan
B Lokur ruled that all 15-year-old petrol
and 10-year-old diesel vehicles be
impounded in Delhi-NCR. Government
sources said that this was not the solu-
tion. The right thing to do was to im-
pound only polluting vehicles and not
look at their age, since, if maintained
well, they could still run well and not
pollute at all.
There are around 3.3 lakh 10-year-
old diesel vehicles and 36.7 lakh 15-
year-old petrol vehicles in Delhi. It will
be a logistical nightmare to store these
vehicles as there is shortage of space.
The apex court had even pulled up the
Delhi police for parking seized vehicles
inside and outside police stations which
had become a breeding ground for mos-
ItisthattimeoftheyearwhenDelhiandtheNCRbecomedeadlygaschambers.Whilethe
SupremeCourthascrackeddownonpolluters,whatcanbedonetocleanthistoxicair?
By Ramesh Menon
A SMOKE CHAMBER
The November smog takes away the shine
of Delhi’s iconic India Gate area
E
Capital Punishment
UNI

quitoes and diseases.
Other measures to curb pollution are
also underway. The Environment
Pollution Control Authority (EPCA),
appointed by the Supreme Court, called
for halting construction activity, use of
diesel-run power generators, operation
of brick kilns and burning of garbage.
The EPCA even went to the extent of
threatening to stop private cars from
plying in Delhi if air quality worsens.
Bhure Lal, chairman, EPCA, said: “Let
us hope the air pollution situation in
Delhi doesn’t deteriorate or else we will
have to stop plying of private vehicles.”
If this happens, it will be unprece-
dented and paralyse offices and business
activities. Public transport will not be
able to take this load anyway. There are
over 35 lakh vehicles in the NCR which
the EPCA says contribute to 40 percent
of the pollution. Incidentally, there are
more than a crore of registered vehicles
in the capital and seven lakh new vehi-
cles are registered every year.
To understand the severity of pollu-
tion levels, one needs to understand
what these levels are. An air quality
index between 0 and 50 is considered
“good”, 51 and 100 is “satisfactory”,
STOKING THE FIRE: Stubble burning in Haryana and Punjab has added to the poor air
quality; (top) a satellite image from NASA shows the spread of the pollution
Mahul in Mumbai is a heavily indus-
trialised area dotted with polluting
units. The air is pungent due to emis-
sions from Hindustan Petroleum,
Bharat Petroleum, Tata Power,
Rashtriya Chemical and Fertilisers and
other factories. Residents find their
eyes and throats burning all the time.
They also suffer from rashes, falling
hair and skin eruptions.
Irate residents filed a case with the
National Green Tribunal (NGT), com-
plaining of high pollution levels. In
December 2015, the NGT ordered the
Maharashtra Pollution Control Board
(MPCB) to prepare a comprehensive
action plan within two months to con-
trol air pollution in Mahul.
Not wanting to do it as it would
expose numerous industrial units that
were flouting pollution norms, the
Maharashtra government chose to
challenge the order in the Supreme
Court. However, the apex court ruled
that the directions of the NGT must be
expeditiously implemented.
Nothing happened.
The residents filed an Execution
Application in 2016. When it came up
for hearing, the MPCB asked for more
time, which was granted. At the next
hearing, it asked for yet more time. The
NGT remarked that the MPCB was
playing a game of hide-and-seek
based on its convenience and imposed
a fine of `1 crore for non-compliance
with its directions to act against the pol-
luting industries. The case will come up
for hearing next on November 15.
`1crorepunishment
Polluting units play havoc in Mahul
Courtesy: NASA
Saagnik Paul/Greenpeace

101 and 200 is “moderate”, 201 and 300
“is poor”, 301 and 400 is “very poor” and
401 and 500 is “severe”. Delhi and the
NCR have crossed 401, raising alarm.
This can damage health in the long
term. Asthma and upper respiratory dis-
eases can spring up. Pollution from fire-
works is more dangerous than vehicular
pollution as they release dangerous
heavy metals into the atmosphere, lead-
ing to respiratory and skin problems.
Burning of waste in landfills and indus-
trial areas is another health hazard.
Burning of plastic and rubber waste
leads to fumes which are carcinogenic
and also leads to cardiovascular diseases.
In another controversial order, the
Supreme Court permitted the sale and
manufacture of “green” firecrackers
which have low emission across the
country. But the irony was that no one
knew what green crackers were and
where to buy them. While the Court
made the sale of green crackers manda-
tory in the NCR, traders do not have
them and it would take at least three
months to produce them. Only some labs
have created them and they are not avail-
able anywhere. These crackers also must
fall within the noise pollution limits and
can be burst only in designated spots.
Some firecrackers that led to excessive
pollution like ladis were banned.
A Supreme Court bench comprising
Justices Ashok Bhushan and AK Sikri
also specified that firecrackers would be
burst only for two hours every day
between 8 pm and 10 pm. The police
were told to enforce this order. But how
it will is a million-dollar question.
The task is enormous and there is lack
of personnel to execute the order. The
Court also directed all states to explore
the feasibility of community cracker
bursting in designated areas only
during festivals.
As Article 21 (right to life) applies to
both firecracker manufacturers and the
general public, the Court said that it
needed to strike a balance while consid-
ering a countrywide ban on firecrackers.
It wanted the central government to
suggest ways to curb pollution caused
by firecrackers.
An expert panel headed by the
Central Pollution Control Board advised
residents to avoid strenuous outdoor
activities like jogging or running. The
Court told the government that poor
people cannot be asked to stay indoors
and not work as their livelihood would
be affected. A bench of Justices Madan
B Lokur, S Abdul Nazeer and Deepak
Gupta said: “They are doing heavy duty
manual work. You cannot tell them that
you stop your work because it is unsafe
for you to work in the morning. This is
a very critical situation. It is horrible.”
To make matters worse, stubble
burning in Haryana and Punjab has
added to the poor air quality. This hap-
pens every year during the onset of
winter when the sowing is done. As
it is expensive to employ labourers to
remove the stalks, the farmers just set
them on fire. Maps of NASA showed
haziness over huge tracts of land
in these two states due to the smok-
ing fields.
The Court also imposed a construc-
tion ban across the NCR for 10 days as
loose soil, dust and building material
were compounding the problem. An IIT
Kanpur study on sources of pollution in
the NCR, published in 2016, said that
road dust was the biggest culprit in
air pollution.
The government’s moves to tackle
pollution such as shutting power plants,
diesel generator sets and brick kilns are
only emergency measures. There are no
long-term action plans to combat the
toxic air pollution that is causing ail-
ments or killing people.
The blame game will continue
between the Delhi government, the
centre and the states of Punjab and
Haryana. And citizens will be caught in
this deadly dance of death.
Environment/ Pollution in NCR
The Supreme Court-appointed Environ-
ment Pollution (Prevention and Control)
Authority (EPCA) has said that as vehi-
cles are contributing 41 percent of the
pollution in Delhi, there is an urgent
need to augment public transport infra-
structure that includes connectivity
between the cities of the NCR.
It also suggested that entry of heavy
commercial vehicles into Delhi be regu-
lated as they release high levels of car-
bon monoxide and nitrogen oxide into
the atmosphere. It wanted taxis and
autos to use clean fuel.
Industries using coal and emitting a
high level of sulphur dioxide also need
to be regulated, it said. Industrial pollu-
tion has increased by a whopping 48
percent between 2010 and 2018, it
pointed out. In a report to the Supreme
Court, the EPCA called for further direc-
tions to agencies to strengthen meas-
ures to control pollution.
Temporarysolutions
EPCA recommends regulated use
of heavy vehicles
Anil Shakya
Pollutioncauses respiratoryand
skinproblems. Burningofplasticand
rubberwasteleadstofumeswhich
arecarcinogenicand
causecardiovasculardiseases.

Global Trends/ Sri Lanka Constitutional Crisis
HE dramatic swearing-in of
former strongman Mahinda
Rajapaksa as the prime mi-
nister of Sri Lanka by Pre-
sident Maithripala Sirisena
recently has plunged Sri
Lanka into an unprecedented constitu-
tional crisis. Ranil Wickremasinghe was
sacked by the president, but continues
to claim he is the prime minister and
wants a vote in parliament to settle the
matter. But the wily Sirisena has asked
parliament to convene in mid-Novem-
ber, giving enough time to Rajapaksa for
getting the necessary numbers. But it
may be no cakewalk for Sirisena, as
there is a pushback from Wickrema-
singhe supporters, who also have the
numbers on their side. The president
may be forced to call Parliament earlier
than November 16 given the pressure on
him from the opposition.
The return of Rajapaksa is raising
concerns not just among the Tamil
minorities in the country, but across
the world.
Ever since Rajapaksa swept the local
body polls in February, speculations
about his comeback were rife. Observers
felt it was only a matter of time before
this former president made his move.
But few expected that Sirisena, once a
minister in Rajapaksa’s cabinet and who
had back-stabbed him to join hands
with the traditional rival, the United
National Party (UNP) of Wickrema-
singhe, would be the catalyst.
The coalition hurriedly patched to-
gether ahead of the 2015 national elec-
tions to keep Rajapaksa out of office was
never a meeting of minds. Sirisena
TANTI-DEMOCRATIC COUP?
Maithripala Sirisena (right) appoints
Mahinda Rajapaksa as prime
minister at a function in Colombo
StormHits
IslandNation
Inamajorjolt,thepresident,MaithripalaSirisena,hassworn
inpro-ChinastrongmanMahindaRajapaksaasPMafter
sackingRanilWickremasinghe,leadingtoworriesinIndia
By Seema Guha
Twitter

brought with him a number of Sri
Lanka Freedom Party leaders to join
him in the coalition of national unity
with the UNP. Both these parties were
the two most popular ones in Sri Lanka.
And this led to Sirisena becoming presi-
dent and Wickremasinghe prime minis-
ter. But this arrangement did not work
out well. Both fell out and had not been
on talking terms for months. Ahead of
Wickremasinghe’s recent visit to India,
the situation had already reached a
breaking point.
Sirisena is alleged to have spoken to
his cabinet colleagues of a RAW plot to
assassinate him. An Indian living in the
island was arrested. His brother in
Mumbai claimed he had a mental prob-
lem. Soon after the news of the RAW
plot, Sirisena called Prime Minister
Narendra Modi to deny any accusation
by him of an Indian bid to kill him and
a former defence secretary of Sri Lanka.
The local press in Colombo was blamed
for misquoting him.
Though the matter was glossed over,
the fact that the former defence secre-
tary was Gotabaya Rajapaksa, brother of
Mahinda, could in hindsight give an
inkling of what was to follow. Sirisena’s
denial must now be taken with a pinch
of salt.
Wickremasinghe has always been
regarded as a friend of India even at the
time of the unpopular Indo-Sri Lanka
accord of 1997. So the move to get India
against Sirisena and Gotabaya signalled
to the domestic audience that Delhi was
against the president and backing Wick-
remasinghe. It is well-known that India,
the US and most western nations re-
joiced after the 2015 election results.
The massive pressure put on Colombo
to clean up its human rights record
eased as Rajapaksa was thrown out by
the electorate.
To the Tamil minorities of this island
nation, as well as the powerful Tamil
diaspora, Rajapaksa is a hate figure
known for widespread human rights
abuses. The diaspora want him to be
tried as a war criminal for the atrocities
committed during the last days of the
military campaign against the
Liberation Tigers of Tamil Eelam
(LTTE). In fact, the young son of late
LTTE leader V Prabhakaran was shot in
cold blood by the Sinhala army.
The mess in Sri Lanka, triggered by
the constitutional coup by Sirisena, will
take time to resolve as it prepares for a
period of instability. Rajapaksa, though
disliked by the rest of the world, re-
mains popular among the Sinhala
Buddhist majority of the country. Like
many in India, people admire a
strong leader.
I
t was, after all, President Rajapaksa
who gave a crushing blow to the
LTTE and rid the country of terror.
The fact that there were widespread
human rights abuses is not important to
those who admire him. These people
point to the number of Sinhala leaders
such as former Prime Minister Rana-
singhe Premadasa, Foreign Minister
Lakshman Kadirgamar, Foreign Mini-
sters Lalith Athalatmudali and Ranjan
Wijeratne and Development Minister
Gamini Dissanayake who were killed by
the LTTE. Many Tamil leaders, includ-
ing the genial Neelan Tiruchelvam and
the elderly leader of a former Tamil
party Amrithalingam, were also killed
by the LTTE.
Rajapaksa has always been a favou-
rite of the Buddhist clergy who are
known for their hyper nationalist stand.
Though Rajapaksa was out of power, his
popular base remained intact. Now that
he is back with a bang, he will occupy
centrestage in Sri Lankan politics.
That would be of concern to India,
which regards Rajapaksa as pro-China.
But that was not always so. During Sri
MahindaRajapaksaremainspopular
amongtheSinhalaBuddhistmajorityof
SriLanka.Thattherewerewidespread
humanrightsabusesduringhisearlier
ruledoesnotmattertohisadmirers.
GARNERING HUGE SUPPORT
A sea of demonstrators protesting against
Ranil Wickremasinghe’s removal in Colombo
Twitter

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