India Legal 14 May 2018

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May 14, 2018
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UR cover story this week is an example
of the continuing alarms that India
Legal sounds to warn readers about a
general trend that points to the wither-
ing of Indian democracy. Generally
defined as the rule of, for, and by the people,
democracy is short-changed if you view it simply
as the right of a person to exercise an individual
franchise in an election. That is only the embryon-
ic stage of a process which is expected to mature
into a multi-faceted engine of accountability,
transparency and checks and balances under the
rule of law.
As Right to Information (RTI) architect and
activist Aruna Roy says in an interview in this
issue: “For Indians to realise that they can shape
the destiny of this country they have to go beyond
the vote to know what they can or cannot do. We
want a shift from representative to participatory
democracy.” She expresses deep distress over the
intimidation and murders of RTI and free activists
and journalists.
Also, in his peculiarly modulated and con-
trolled style of expressing anguish, iconic Prof.
Upendra Baxi writes in this issue: “The Supreme
Court has evoked national concern ever since
January 12, 2018, when its four seniormost jus-
tices not only released a letter they had written to
the chief justice of India (CJI) concerning the
ways the roster and collegium systems were work-
ing or not allowed to work properly but also
appealed to the nation and history to rectify the
current unhappy state.”
Prof. Baxi observes that “the political executive
has grudgingly tolerated an independent judiciary
since Pandit Jawaharlal Nehru’s times and also
engaged simultaneously in considerable political
warfare over judicial appointments”.
The judiciary, press, the RTI Act and of late,
the Election Commission—are not the only arms
of the Republic which are under attack. Our cover
story adds a new dimension to this scary scenario:
the very legislative process in Parliament, the
lifeblood of running and governing a free nation,
is in the process of being strangulated by diktat,
fiat and political legerdemain.
During the past four years, this story points
out, the Modi government has made it a habit to
rule through ordinances rather than pass bills fol-
lowing proper parliamentary procedures and
healthy debate. The government has promulgat-
ed/re-promulgated nearly 40 ordinances in four
years. The earlier Congress-led UPA government
had its own cross to bear: It passed some 61 ordi-
nances in 10 years.
An analysis and timing of these ordinances
reveals a political motivation. They include
the TRAI ordinance to help the appointment
of supercrat Nripendra Mishra as principal
secretary to the prime minister, land acquisition
ordinance, Uttarakhand appropriation ordinance
and the recent death penalty ordinance against
rape convicts.
The overall strategy is to muscle through dik-
tats by bypassing parliamentary scrutiny. This is a
multi-pronged assault on the system which TMC
leader Derek O’Brien called “Murdering
Parliament” in a tweet some time back. O’Brien
was referring not to ordinances but to a related
issue: The virtual abandonment of the parliamen-
tary system of committees, joint committees and
select committees which closely examine all bills
before they are put to a vote on the floor of both
Houses. Said O’Brien: “In this BJP regime, only
nine out of 74 bills passed have been scrutinised
by a committee. In contrast, from 2009-14, 66 out
of 116 bills passed were scrutinised by parliamen-
tary committees.”
As envisaged by our founding fathers, the
committee system was a seminal check on our
lawmakers by the lawmakers themselves.
Government bills were to be sent to committees
for a thorough examination consisting of expert
analysis, social impact and views of eminent citi-
zens before being sent to the floor for voting. The
framers of the Indian Constitution, BR
Ambedkar, Jawaharlal Nehru, Sardar Patel,
Rajendra Prasad, HV Kamath, among others,
STRANGLING PARLIAMENT
Inderjit Badhwar
Letter from the Editor
O
4 May 14, 2018
favoured independent legislators.
Under the Westminster system of governance,
the legislature is really an extension of the
executive and cannot really be expected to police
itself. So in order to ensure some form of account-
ability and ensure a modicum of separation of
powers, committees and select committees were
created to judge proposed laws not according to
partly lines or whips but according to merit.
Because these meetings were held behind closed
doors, ministers were excluded from standing
committees, legislators could speak their minds
freely and record their dissent anonymously with-
out fear of retaliation.
A recent report in Firstpost said that laws con-
cerning the future of the nation’s governance such
as the National Judicial Appointments
Commission Act, 2014, the Insolvency and
Bankruptcy Code Amendment Act, 2018, the
Aadhaar (Targeted Delivery of Financial and
Other Subsidies, Benefits and Services) Act, 2016,
as well as laws with far-reaching consequences
such as the Atomic Energy (Amendment) Act,
2015, the Citizenship (Amendment) Act,
2015, the Lokpal and Lokayuktas (Amendment)
Act, 2016 and the Collection of Statistics
(Amendment) Act, 2017 were passed without
referral to any committee.
One of the most prescient pieces I have read
recently on “murdering parliament” was by legal
scholar and writer Malavika Prasad. Her analysis,
available on the net, deserves wide attention from
all who are interested in making the country’s con-
stitutional democracy healthier and safer. I would
like to quote from her at length. She explains that
upon being introduced in the Lok Sabha, Bills are
referred to Standing Committees for a deeper
analysis. Standing Committees, appointed for a
period of a year, mirror the composition of the
Parliament with up to 21 members from the Lok
Sabha and 10 from the Rajya Sabha. They thus
represent divergent interests. Ministers—or mem-
bers of the Council of Ministers responsible for
formulating the Bill—cannot be nominated onto
such Committees, to ensure a fresh and unbiased
study of the Bill is carried out. Under the present
government, only seven of 76 passed Bills were
referred to Standing Committees.
She asks whether all our laws are democratical-
ly enacted. Her short answer: “Not really…
because when Bills are not referred to Commit-
tees, the ruling party controls not only the formu-
lation of the policy in the Union Cabinet but also
the passing of the Bill in the Lok Sabha. This is
why Bills can be passed within minutes, by sheer
force of numbers, without engaging in any debate,
as was the case in the Budget Session.
No doubt, the Bill does not acquire the status
of law unless the Rajya Sabha also passes it. But,
she notes correctly: “When the Bill is a Money Bill,
as the Aadhaar (Targeted Delivery of Financial &
Other Subsidies, Benefits & Services) Act, 2016
was, the Rajya Sabha enjoys even lesser powers.” If
the Rajya Sabha chooses not to pass a Money Bill
within two weeks of receiving it, or if it proposes
amendments to the Bill that are not acceptable to
the Lok Sabha, the Bill becomes law anyway.
I cannot find better words to conclude this
essay other than the ones with which Prasad ends
her own analysis: “In short, a handful of Ministers
in the Union Cabinet get to decide what shall be
the law for an entire nation of a billion people.
What we have today is the supremacy of the exec-
utive in a democratic Constitution's clothing. High
school civics may have been simplistic, but it cer-
tainly was not wrong in teaching us that India’s is
a democratic government because a Parliament
elected by citizens enacts laws.”
| INDIA LEGAL | May 14, 2018 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
QUICK AND DIRTY
Prime Minister Modi
addresses the Lok
Sabha during the
Budget Session
wherein Bills were
passed within minutes
UponbeingintroducedintheLokSabha,BillsarereferredtoStanding
Committeesforadeeperanalysis.Underthepresentgovernment,only
sevenof76passedBillswerereferredtoStandingCommittees.
UNI

ContentsVOLUME XI ISSUE 26
MAY14,2018
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6 May 14, 2018
Rule of Ordinance
Article 123 of the Constitution is meant to let the government tackle urgent problems when the
Parliament is not in session, not help it rule through fiats that bypass legislative scrutiny
LEAD
12
Compassion
is the Answer
Upendra Baxi shares his views on the Delhi High Court’s rescue
act when it took a stand for a septuagenarian illegally detained on
a Rohini court’s orders in a mental health facility
18
Softer Executions
In a nod to an appeal by the United
Nations at a general assembly meet,
the Uttarakhand High Court has
abolished the practice of solitary
confinement of death row convicts
LEGALEYE
20
COLUMN
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside........................... 8
Delhi Durbar .................... 9
Courts............................ 10
National Briefs............... 33
International Briefs ........ 48
Media Watch ................. 49
Trussed
in Red Tape
Though the Rajasthan
Guaranteed Delivery of
Public Services Act was
passed in 2011, the state
has received a whopping
5.81 crore complaints
30
42
A new unrest is
brewing in contiguous
tribal areas of
Jharkhand and
Chhattisgarh over
their governments’
attempt to acquire
tribal land for
“development”
Pathalgadi Rising
STATES
46Assam’s
Identity Crisis
Updating the National Register of
Citizens was part of the accord in 1971.
Now the apex court has decreed that
work be completed by May 31, leading
to panic among Bengali Muslims
Cover Design
ANTHONY LAWRENCE
History for Sale?
The government’s bid to get corporates to maintain various monuments and allow
them to make a killing doing so has raised the hackles of conservationists
HERITAGE
37
INTERVIEW
“Whistleblowers
Need a Law”
The rampant killings of those who
expose corruption in the system
has brought to fore the dire need
for their protection, activist Aruna
Roy tells India Legal
34
Policing the
Love Hormone
The government has banned the sale of
oxytocin as it is being rampantly misused
among humans, animals and plants, leading
to dangerous consequences
40
Green Revolutionary
Former NGT chairperson Justice Swatanter Kumar explains to India
Legal what’s behind the new wave of environmental consciousness
CONCLAVE
26
What Happened in Gorakhpur
The release of Dr Kafeel Khan, arrested for 32 child deaths in BRD
Medical College, gives the lie to the case built up against him
29
COURTS
ACTS&BILLS
HEALTH

8 May 14, 2018
“
RINGSIDE
“We are delighted
that Jitendra has
crossed the border
to home. We wish
to thank everyone
in Pakistan who
made this possible...
we are grateful to
them.”
—Indian High
Commissioner to
Pakistan Ajay
Bisaria on Twitter,
on Jitendra’s return
to India
“You can’t say, I will
allow this many
people into a city as
there are homes.
That is not how it
works…. India is a
democracy, it is
every citizen’s right
to live where he or
she wants….”
—Union minister
Hardeep Singh Puri,
on people moving
into cities in India
“It (Kathua rape
and murder) was a
small thing. We
have to be careful in
the future that such
incidents are not
repeated.... It
shouldn’t have been
given all this hype.”
—Deputy chief min-
ister, Jammu and
Kashmir, Kavinder
Gupta to the media
“I am not Lord
Ram who can share
meals with Shabri
and purify her,
instead I am the
one who is purified
when Dalits visit
my home and have
a meal with me.”
—Union minister
Uma Bharti after
she skipped a com-
munity meal with
the Dalits in MP
“...The phase we are seeing in the SC today, is to
say the least, disastrous. It is high time the
collegiality is restored. The judges with the
different approaches and viewpoints must
find a common ground — that takes the SC
forward and that maintains the independence
of the judiciary....”
—Former Chief Justice of India Justice RM Lodha at a book
launch event in New Delhi
“Whenever he is
desperate, he starts
attacking people
personally. But this
is the difference
between me and
him. I will never
attack Modiji
personally.”
—Rahul Gandhi
during his public
address in poll-
bound Karnataka
“There should be a
cow in every house.
Why run after netas
for government
jobs? Milk is being
sold at `50 per litre.
Graduates should
get cows and milk
them to earn `10
lakh in 10 years....”
—Tripura CM Bip-
lab Deb, suggesting
a solution to remove
unemployment in
the state
“If the government
of India cannot ear-
mark three hours of
its time, they
should not bother
giving us National
Awards....”
—Sound artiste Res-
ul Pookutty on Twi-
tter, reacting to the
president felicitat-
ing only a few of the
recipients this year
An inside track of
happenings in Lutyens’ Delhi
Delhi
Durbar
In the light of recent political reverses in
state by-elections and the flagging econo-
my, many Indians are increasingly coming
to believe that the BJP’s glitter may be fad-
ing. It appears that the sentiment is shared
by even some influential leaders who once
held high office at 11, Ashoka Road, the
party HQ, but for the last few years have
been in the political doghouse.
Two of them, not really the best of
friends even at the best of times, have now
decided that enough is enough and chosen
to take matters into their aging hands. Their
grouse is that nobody in the party listens
to them anymore, so they have zeroed in
on a novel way to pass their time. It’s
a path that both leaders are familiar with.
They will embark on a Marg Darshak
Mandal Yatra that will take them from
Kanyakumari on India’s southern tip to
Kashmir. The yatra, whose dates and other
details are being worked out, will traverse
major states and is expected to see the
enthusiastic participation of party cadres.
It would be tempting to label the yatra a
venture by the party’s disgruntled, but that
would be unfair to the party veterans who
are setting out on the gruelling task in their
dotage. Indeed, were it an assembly of the
disgruntled, then Yashwant Sinha and
Shatrughan Sinha would have been up
front, but the fact that they won’t be is proof
that the yatra is not at all about intra-party
politics.
OLD STILL GOLD?
On the last day of April, PM
Narendra Modi woke up,
took a look at the full-page
government ads in the
newspapers which boasted
of an electricity connection
given to a tiny hamlet in
Manipur and said, “Let
There be Light Across The
Length And Breadth Of
India.” With that, the gov-
ernment claimed that every
village in India had access
to electricity.
With important states
heading for assembly elec-
tions, the opposition pre-
dictably called it a political
stunt. Politics apart, only
last year, the World Bank
had said that nearly 70 mil-
lion Indians live without
electricity.
How did the government
manage the impossible? Or
did it really?
Sections of the media—
particularly those that didn’t
get the massive govern-
ment ads—set out to
investigate. True to style,
when India’s largest news
magazine sent reporters to
many villages in Madhya
Pradesh, Jharkhand and
Rajasthan, they found vast
tracts of the country contin-
uing to live in darkness.
These included even areas
in VVIP constituencies rep-
resented by some Union
ministers. And then it
dawned on everyone that
there is an election coming
up, and all is fair in love,
war and electrification.
ZERO WATT
Sons appearing in a court where the father
is a judge—or vice versa—is an age-old
debate. The Bar Council has rules that
technically bar a lawyer from practising in a
court where any of his relatives functions as
a judge. The list of such relatives includes
father, grandfather, son, grandson, uncle,
brother, nephew, stepbrother, husband,
wife, daughter, sister, aunt, niece, father-in-
law, brother-in-law and sister-in-law. But
since there is confusion and controversy
over whether the term ‘court’ mentioned in
the rules refers only to the court of that par-
ticular judge or the entire court where the
relative works, “well connected” lawyers
continue to thrive.
But a young legal eagle of the capital of-
ten seen in Delhi Court circles literally takes
the cake. As connections go, he is unmat-
ched. He is not only the son of a judge of
the Delhi High Court, he is also the son-in-
law of a judge of the Supreme Court. His
blessings don’t end there. His father-in-law,
very much in the news these days, is in line
to become the CJI. Little wonder that the
young lawyer struts around the corridors of
the Delhi HC and the Supreme Court, som-
etimes flaunting indecorous behaviour and
arrogance before judges that would have
landed anyone else in a bit of a bother.
National award winning actor
Prakash Raj, who enjoys
immense public support in
Karnataka, has become a
major electoral headache for
the BJP in the southern state
where the saffron party is
already facing the daunting
task of ousting the Siddara-
maiah-led Congress govern-
ment in the upcoming May 12
assembly polls. Raj had been
vociferously criticising
Narendra Modi and the BJP
ever since his close friend and
senior journalist Gauri Lankesh,
a radical secularist, was mur-
dered outside her Bengaluru
residence last year, allegedly
by bigoted thugs.
Now, with assembly polls in
the state just days away, Raj
has launched his outfit, the
Just Asking Foundation, and is
touring the state with a ven-
geance. The sole aim of his
“apolitical” campaign is to
keep the BJP out of power. The
veteran actor has not aligned
himself openly with any politi-
cal party but has made his
anti-BJP stance abundantly
clear. He has got together for-
mer civil servants, writers, aca-
demics and multitudes of his
Kannada fans to address local
media and public rallies under
the banner of his Just Asking
Foundation where the need to
keep a “communal” BJP out of
power is repeatedly highlight-
ed. The actor is himself touring
coastal Karnataka—the strong-
hold of the BJP.
NEW “RAJ” IN
KARNATAKA?
RELATIVEMUSCLE

Justice RK Agrawal of the
Supreme Court retired on May
4, 2018, and was given a warm
farewell by the Supreme Court Bar
Association (SCBA) at a function
in New Delhi. The function was
attended by CJI Dipak Misra, other
Supreme Court judges—Justices
MB Lokur, AK Sikri, NV Ramana,
Arun Mishra, AK Goel, AM Sapre,
R Banumathi, UU Lalit, AM
Khanwilkar, Ashok Bhushan,
Deepak Gupta and Indu
Malhotra—SCBA president Vikas
Singh, Additional Solicitor General
Tushar Mehta and others.
Justice Agrawal hails from UP
and did his law from Allahabad
University. He enrolled as an
advocate on August 14, 1976,
and was elevated as a permanent
judge of the Allahabad High Court
on February 5, 1999. He later
went on to become the chief jus-
tice of the Madras High Court on
October 24, 2013. He was
appointed as a Supreme Court
judge on February 17, 2014.
Justice Agrawal
retires from SC
Courts
10 May 14, 2018
The standoff between the Judiciary and the
Executive spilled out into the open on May
4. As a court full of people witnessed the ten-
sion that had built up over the recommenda-
tions of the collegium regarding appointment
of judges, the judiciary seems to have found a
new way out of the impasse.
It all harks back to the appointment of
Justice KM Joseph, chief justice of the
Uttarakhand High Court, to the Supreme Court
being held back. While the collegium had rec-
ommended his name, the Department of
Justice sent it back saying there were more
senior judges who could be appointed. It is no
secret that the Executive has been displeased
with Justice Joseph for having cancelled
President’s rule in Uttarakhand.
On May 4, Attorney General KK Venugopal
asked a bench of Justices Madan B Lokur and
Deepak Gupta why the collegium was sending
just a “few names” when there were more
than 40 vacancies in high courts? While he
wanted numbers, he himself was not able to
reply to the bench’s question on how many
recommendations the centre was sitting on.
This showed the collegium’s insistence on
quality, while the government has been harp-
ing on the number of recommendations.
In his May 2 report on the inconclusive
(deferred) meeting of the collegium, Chief
Justice Dipak Misra had said that the col-
legium had met to consider the following
agenda: “To reconsider the case of Mr Justice
K M Joseph, Chief Justice Uttarakhand High
Court... pursuant to letters dated 26th and
30th April from the Ministry of Law and
Justice... and also to consider the names of
judges from Calcutta, Rajasthan and
Telangana and Andhra Pradesh High Courts
for elevation as judges of the Supreme Court
in view of the concept of fair representation.”
Sources told India Legal that this would
possibly be the approach of the collegium in
future too, except that Justice Joseph’s name
this time might be preceded by four others,
thereby affecting his seniority. Thus, the cen-
tre’s objection to Justice Joseph’s lack of
seniority will be swept under the carpet.
The flip side is that Justice Joseph, while
getting a seat in the Supreme Court, is unlike-
ly to ever get enough seniority to be part of
the collegium, not to speak of becoming chief
justice. With Venugopal challenging the judici-
ary directly, saying that if the collegium was
sending too few names, the onus was entirely
on the judiciary and not the government, the
rift was out in the open.
The issue being discussed related to
vacancies for judges in the high courts of
Manipur, Meghalaya and Tripura. The col-
legium’s recommendation for the appointment
of Justices M Yaqoob Mir and Ramalingam
Sudhakar as chief justices of the Meghalaya
High Court and Manipur High Court, respec-
tively, is yet to be cleared.
The bench had asked the AG: "Tell us, how
many names (recommended by the
Collegium) are pending with you." When the
AG replied: "I will have to find out," the bench
hit back saying: "When it comes to the gov-
ernment, you say 'we will find out'".
The AG, a veteran lawyer, threw back the
gauntlet saying: "The collegium will have to
see the broad picture and recommend more
names. Some high courts have 40 vacancies
and recommendation of the collegium is only
for three. And the government is being told
that we are tardy in filling up the vacancies. If
there is no collegium recommendation, noth-
ing can be done."
The logjam continues but a breakthrough
may be in the offing.
Collegium
strategy
to resolve
impasse
West Bengal and Uttarakhand
tendered apologies in the
apex court for revealing the
names of sexual offence victims
in their respective affidavits, and it
was accepted. Meghalaya, too,
did the same for mentioning it in
an annexure to its affidavit.
However, the Court said that the
lapse was serious and they need
to be careful in future. Earlier, it
had asked officials of Uttarakhand
and West Bengal to appear as
they had named rape victims
related to paying compensation
under the Nirbhaya Fund scheme.
Sorry for naming
rape victims
Justice
Madan B Lokur
Justice
Deepak Gupta
Attorney General
KK Venugopal
Last month, senior advocate Shanti
Bhushan had filed a plea in the
Supreme Court specifically before a par-
ticular judge who had been part of the
“four rebels”, alleging that the Chief
Justice of India Dipak Misra was showing
bias while allocating cases. Bhushan
questioned the power of the CJI as the
sole master of the roster to decide on
benches, which, according to him, was
“unguided and unbridled discretionary
power”. He suggested that the decision
to allot cases to benches should, in fact,
be taken by the collegium of five judges.
Further, he made it clear that his plea
should not be heard by the CJI nor the
latter take a call on the bench which
should hear the plea.
That created a furore.
However, it is pertinent to look back at
the lawyer’s own past. According to find-
ings from a past judgment—Anil Kumar
Verma vs UP State Industrial… on Aug-
ust 29, 2014—given by the Allahabad
High Court, Bhushan was pulled up by
Justices Arun Tandon and Arvind Kumar
Mishra for trying to pressure one of them
to recuse himself from a case which
Bhushan was representing. India Legal
had published the story related to the
issue in September 2014. Here are a few
stringent observations against him:
“…What is worst is that the Senior
Advocate who had taken the personal
responsibility of filing an affidavit in sup-
port of recusal application did not even
appear before the Court when the recusal
application came up for hearing.”
“The recusal application was filed by
the Senior Advocate mentioned two
grounds, for one of us (Arun Tandon, J.)
to not to hear the petition, namely:
(a) rumours in the corridors.
(b) the manner in which the Court is pro-
ceeding to hear the matter…”
“He did not have the courage to press
the application before the Court and con-
veniently avoided attending the Court pro-
ceedings after sometime…”
“Such attempts by the litigants and
his counsel which tantamount to forum
shopping have to be crushed with heavy
hand. It is interference in the course of
justice leading to penal consequences…”
“A senior seasoned advocate should
not reflect uncertainty in his accomplish-
ments by adopting a sharp practice like
deliberately intimidating a judge to recuse
himself through a theatrical performance
encouraged only by the purse of his
client as against his true obligations
towards the Court and the Society at
large, where he keeps preaching all the
time about the maladies of a corrupt
mind. He should not appear hypocritical
by pretending to go to heroic lengths in
the devilish interests of his clients. He
should not allow his rationality and objec-
tivity to be overtaken with the aid of
aggression and intolerance.”
“We are not personally interested in
hearing of any particular case but the
oath of the office commands as to do
justice without fear or favour. It casts a
duty upon the High Court Judges to repel
all attempts to bulldoze the Court even if
made with the help of lawyers who have
experience of 60 years at Bar. The real
intent in the mind of such litigations and
their counsel in forum shopping only…”
“We hold that this recusal application
is motivated with a purpose to avoid this
Court with an intent of forum shopping. It
is, hereby, rejected….”
—Compiled by India Legal team
The apex court took suo motu cogni-
sance of the shocking case of a hotel
owner shooting down a lady assistant
town and country planner Shail Bala
Sharma during a demolition drive in the
Kasauli district of Himachal Pradesh. The
court said it was concerned that the state
government could not provide adequate
security to the officer. The officer, head-
ing the demolition drive, was murdered in
broad daylight by Vijay Singh, owner of
Narayani Guest House. Also critically
injured in the shooting was PWD employ-
ee Gulab Singh. He is in hospital.
The Court had earlier directed the
state government to demolish unautho-
rised structures—13 hotels in Kasauli
and Dharampur areas. Singh has been
arrested from Mathura where he fled.
SCshowsconcernover
Kasaulishooting
In a sort of moral victory for the
Mamata Banerjee-led Trinamool
Congress (TMC) government in West
Bengal, the Calcutta High Court not only
instructed the State Election Commission
(SEC) to conduct itself in a neutral man-
ner, but also refused to be pulled into a
controversy that has arisen about the
dates of the panchayat elections in the
state. The Court said that the SEC had
floundered in upholding its constitutional
obligations and should work towards
redeeming itself. It observed that the
SEC’s arbitrary changing of dates and
reducing the number of phases was
avoidable. The new date announced by
the SEC for the polls is May 14.
CalcuttaHCslamsState
ElectionCommission
Kettle and the pot

Lead/ Ordinance Raj
12 May 14, 2018
Rule by
DiktatThisemergencymeasureismeanttotackleurgentproblemswhenParliament
isnotinsessionbutgovernmentshaveoftenmisusedthisconstitutionally
grantedrightinordertobypasslegislativescrutiny
By Puneet Nicholas Yadav
UNI
ROLL IT BACK
Congress leader Sachin Pilot
leads a protest against the tabling
of the Criminal Laws (Rajasthan
Amendment) Bill, 2017, in Jaipur
N April 21, the Union
cabinet headed by
Prime Minister
Narendra Modi passed
the Criminal Law
(Amendment) Ordi-
nance, 2018 which
allows courts to award
the death penalty to those convicted of
raping children below 12 years of age.
The ordinance was promulgated by
President Ram Nath Kovind a day later
but was promptly challenged in the
Delhi High Court which asked the cen-
tre whether it had carried out any scien-
tific assessment before arriving at the
conclusion that the death penalty would
act as a deterrent against rape. The
Delhi High Court bench of Acting Chief
Justice Gita Mittal and Justice C Hari
Shankar posed a slew of other questions
to the centre, raising doubts over the
legal soundness of the ordinance, before
asking: “Have you been to the root cause
of the crime, or is it (the ordinance) the
effect of the public outcry?”
The public outcry the bench was
referring to was over the rape and mur-
der of an eight-year-old shepherd girl in
Kathua, Jammu and Kashmir, and the
rape of another minor in Uttar Pradesh’s
Unnao district, in which the accused is a
BJP legislator. Adding to the horror of
the Unnao case was the fact that the
father of the rape survivor died in police
custody after he was reportedly beaten
by cops and the brother of the accused
BJP MLA, Kuldeep Singh Sengar, and
his henchmen.
The Kathua and Unnao rapes had
triggered a severe political backlash
against the Modi-led government at the
centre, the Yogi Adityanath government
in Uttar Pradesh and the BJP in J&K,
where the party is a partner in the rul-
ing Mehbooba Mufti-led coalition and
where some of its legislators and minis-
ters had publicly supported the rapists.
Possibly sensing that a reprisal of public
anger, last witnessed in the aftermath of
the Nirbhaya gangrape, would brand the
BJP as a party that not only compromis-
es on women’s safety but also supports
those perpetrating these crimes, the
centre hastily drafted the ordinance. It
was passed at a special cabinet meeting
convened on a Saturday (the cabinet
normally meets on Tuesdays).
The flaws and obvious lack of
thought and study that went into draft-
ing the Criminal Law (Amendment)
Ordinance, 2018, as evident in the
Delhi High Court’s stern posers to the
Indian Medical Council
(Amendment) Ordinance, 2016
Dentists (Amendment) Ordinance,
2016
Enemy Property (Amendment and
Validation), Second Ordinance, 2016
Uttarakhand Appropriation (Vote on
Account) Ordinance, 2016
Enemy Property (Amendment and
Validation) Ordinance, 2016
Arbitration and Conciliation
(Amendment) Ordinance, 2015
Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement
(Amendment) Second Ordinance,
2015
Coal Mines (Special Provisions)
Second Ordinance, 2014
Insurance Laws (Amendment)
Ordinance, 2014
Telecom Regulatory Authority of
India (Amendment) Ordinance, 2014
Criminal Law (Amendment)
Ordinance, 2018
Fugitive Economic Offenders
Ordinance, 2018
Some ordinances passed by the
Modi government in the past
four years:
Whatfervour!
O
UNDO THE WRONG
Social activist Anna Hazare protesting
against the Land Acquisition Ordinance in
2015 in New Delhi
UNI

14 May 14, 2018
centre, have been extensively written
about. But they are also the result of
another malaise that seems to strike
most governments—that of misusing
their right of promulgating ordinances.
An ordinance is an emergency meas-
ure, provided under Article 123 of the
Constitution, to tackle urgent problems
when Parliament is not in session. If the
parliament is in session, legislation must
be brought in and approved by it and
then subsequently assented to by the
president. An ordinance, on the con-
trary, is issued by the government,
assented to by the president and passed
within six months and six weeks as a
law in the normal course by Parliament.
However, if for some reason, the ordi-
nance can’t be passed by Parliament
within this mandated period (if
Parliament doesn’t function due to a
logjam), the ordinance would automati-
cally expire. The government then has
the option of requesting the president to
re-promulgate it.
Vivek Tankha, senior advocate in the
Supreme Court and a Congress MP,
believes that while “a government can-
not be questioned on its right to bring in
an ordinance since this is guaranteed by
the Constitution, Article 123 should be
invoked only in absolutely urgent situa-
tions”. He told India Legal: “The ordi-
nance route, particularly for matters
that affect the society, is less desirable
than the normal process of scrutinising
a bill by Parliament and its standing
committees. What we are seeing today is
an abuse of Article 123 for what can be
called a self-serving agenda, wherein the
government brings in an ordinance to
either counter political challenges or
make a statement about an issue it has
failed to address through governance.”
I
n the past four years, over 35 ordi-
nances have been promulgated.
Nine of these were issued within the
first eight months of Modi becoming the
PM. The Modi government began its
innings with a recommendation for two
ordinances at the very first meeting of
the Union cabinet. Within a fortnight of
taking charge in May 2014, the cabinet
recommended an ordinance to amend
the Telecom Regulatory Authority of
India Act to facilitate the appointment
of ex-TRAI chief Nripendra Mishra as
principal secretary to the prime minister
(an ordinance that was purely meant to
address the whims of the premier and
was of no consequence for the citizens at
large), and the other to amend the
Andhra Pradesh Reorganisation Act for
transfer of a cluster of villages for the
Polavaram project.
There is no doubt that the Modi gov-
ernment did bring in some ordinances
that were meant to smoothen legal hur-
dles caused by existing laws. These
included the Enemy Property (Amend-
ment and Validation) Ordinance, 2016;
Indian Medical Council (Amendment)
Ordinance, 2016; Citizenship (Amend-
ment) Ordinance, 2015; Coal Mines
(Special Provisions) Ordinance, 2014,
etc. However, a number of other ordi-
nances were largely political tools, either
aimed at bolstering the image of the
government and its leader or endearing
the new regime to corporates and indus-
trialists who had visibly ditched the
Congress during the 2014 general elec-
tion in favour of the pro-business BJP.
While the Modi government did
steer into choppy waters when it
brought the ordinance to facilitate
Mishra’s appointment as Modi’s princi-
pal secretary, the regime faced the first
full brunt of the Opposition’s tirade over
its “Ordinance Raj” when the cabinet
PUBLIC OUTCRY
The ordinance for death penalty to rapists
of children was a knee-jerk reaction to the
Kathua incident
Pandit Jawaharlal Nehru (1952-1964):
70 ordinances
Indira Gandhi (1971-1977): 77
Rajiv Gandhi (1985-1989): 35
PV Narasimha Rao (1991-1996): 77
United Front government (1996-98): 77
Atal Bihari Vajpayee (1998-2004): 58
Dr Manmohan Singh (2004-2014): 61
Inthesameboat
Total number of ordinances
promulgated by the previous
regimes between 1952 and
December 2014: 679
Source: Lok Sabha publication, Presidential
Ordinances 1950-2014
Lead/ Ordinance Raj
UNI
withdraw it.
A little over two years into power and
weeks after Modi decided to stun the
country with his demonetisation move,
his cabinet passed another ordinance—
the Specified Bank Notes Cessation of
Liabilities Ordinance, 2016. With this
ordinance, the Modi government creat-
ed another first of sorts in India’s leg-
islative history. A bulk of the provisions
of this demonetisation ordinance were
meant to kick in at a future date—after
March 31, 2017, when the RBI’s 19
exchange counters for demonetised cur-
rency notes across the country were to
be closed. Ordinances are meant to take
immediate effect as the constitutional
rationale behind them is to address an
urgent situation—an ordinance which is
post-dated (as the demonetisation ordi-
nance certainly was)—is an oxymoron.
Over the past fortnight, the govern-
ment has once again gone into ordi-
nance overdrive, passing two of them
with both equally flawed legally. Aside
from the Criminal Law (Amendment)
Ordinance, the cabinet has also passed
the Fugitive Economic Offenders
Ordinance (analysed in clinical detail in
the May 7 edition of India Legal).
While the Delhi High Court has,
rightly, pulled up the centre for its hasty
anti-rape ordinance, former Chief
Justice of India Justice TS Thakur
believes that when it comes to judicial
scrutiny of ordinances or even legisla-
tion passed by Parliament, “the scope for
courts to interfere is very little”. “The
courts can scrutinise whether an ordi-
nance or legislation violates the funda-
mental rights of a citizen or contravenes
any other Articles of the Constitution
and if they find this to be the case, then
they can strike it down. Passing an ordi-
nance is the constitutional right of a
government. Of course, it is always bet-
ter if legislation is done through parlia-
mentary scrutiny but the courts can’t
intervene and tell a government that it
isn’t within its right to pass
approved the Right to Fair Compens-
ation and Transparency in Land Acqui-
sition, Rehabilitation and Resettlement
(Amendment) Ordinance, 2014.
The ordinance was meant to severely
dilute the strident provisions of the land
acquisition law passed by the UPA gov-
ernment which gave farmers, small land
holders and the common man greater
rights to compensation in the event of
their land being acquired by the govern-
ment or private players. The govern-
ment’s unabashed arrogance in attempt-
ing to turn pro-poor legislation into pro-
business, and that too without due
deliberations in Parliament, gave the
Opposition the ammunition it needed to
attack the seemingly infallible Modi and
saw then Congress Vice-president Rahul
Gandhi coin his “suit-boot ki sarkar”
jibe for the BJP regime.
G
iven his party’s brute strength in
the Lok Sabha and continuing
victory march at the hustings in
elections to the Maharashtra, Haryana
and several other provincial legislatures,
Modi had the misplaced notion that he
could storm ahead with the land acqui-
sition ordinance. Despite protests by the
Opposition, the ordinance was not
tabled in Parliament sessions convened
after it was promulgated but was re-pro-
mulgated twice in 2015 before Modi was
forced to finally eat humble pie and
TheDelhiHCbenchofActingChief
JusticeGitaMittal(above)andJustice
CHariShankarposedaslewofquestions
tothecentre,raisingdoubtsoverthe
legalsoundnessoftheordinancerelated
tothedeathpenaltyforthoseconvicted
ofrapingchildrenbelow12years.
“Passinganordinanceistheconstitu-
tionalrightofagovernment.Itisalways
betteriflegislationisdonethroughpar-
liamentaryscrutinybutthecourtscan’t
interveneandtellagovernmentthatit
isn’twithinitsrighttopassordinances.”
–FormerChiefJusticeTSThakur
SETTING A WRONG PRECEDENT
The Dr Manmohan Singh-led UPA goverment
issued a total of 61 ordinances in 10 years

16 May 14, 2018
ordinances. If the ordinance is not
brought before Parliament within the
constitutionally mandated period and
the government simply re-promulgates
it, then a challenge in courts is possible,”
Justice Thakur told India Legal.
I
n January 2017, a constitution
bench headed by Justice Thakur
(he was then the CJI) had passed a
verdict that famously held that ordi-
nances are not immune from judicial
scrutiny when the “power has been
exercised to secure an oblique pur-
pose”. The 5-2 majority verdict, which
came on a bunch of petitions that chal-
lenged an astronomical number of
ordinances passed by the Bihar govern-
ment between 1989 and 1991, had also
slammed repeated re-promulgation of
ordinances. Though Chief Justice
Thakur and Justice Madan B Lokur
constituted the minority opinion (the
majority verdict was authored by
Justice DY Chandrachud), the judg-
ment laid down clear directives for the
government on re-promulgation of an
ordinance. Ruling that re-promulga-
tion of an ordinance was a “fraud on
the constitution”, the verdict had held:
“Re-promulgation defeats the constitu-
tional scheme under which a limited
power to frame ordinances has been
conferred on the President and the
Governors. The danger of re-promulga-
tion lies in the threat which it poses to
the sovereignty of Parliament and the
state legislatures which have been con-
stituted as primary law givers under
the Constitution.”
The apex court’s verdict against re-
promulgation of ordinances also high-
lighted that the ruling through this con-
stitutionally-granted tool was a malaise
as deep-rooted in the states as it is at the
centre. Earlier this year, the Vasundhara
Raje-led BJP government in Rajasthan
had made national headlines for passing
a controversial ordinance. This sought
to gag the media by prohibiting it from
reporting on corruption cases filed
against bureaucrats till such time sanc-
tion was granted to prosecute an officer.
Following protests, Raje was forced to
withdraw the ordinance.
By virtue of being in power now, the
Modi government is obviously in trouble
for its ordinance run. However, it seems
to be following, perhaps with greater
brazenness, a practice that its predeces-
sors had turned into a new normal.
The Dr Manmohan Singh-led gov-
ernment during UPA-I (2004-09) had
issued 36 ordinances. UPA-II (2009-14),
with better numbers in Parliament, had
issued 25. A total of 61 ordinances in 10
years or an average of six each year! The
memory of Gandhi arriving unanno-
unced at a media interaction in the
Press Club of India on New Delhi’s
Raisina Road, and tearing to bits a copy
of a controversial ordinance passed by
his party’s government days earlier to
shield convicted politicians from losing
their seats in Parliament (or state
assemblies), is fresh in public memory.
A Lok Sabha publication titled
Presidential Ordinances 1950-2014
issued in early 2015 shows that after the
Constitution came into force and till
December 2014, the president has
promulgated 679 ordinances. Of these,
456 were issued in about 50 years of
rule and by six prime ministers of the
Congress. India’s first prime minister,
Pandit Jawaharlal Nehru, had cleared
70 ordinances from 1952 to 1964. Indira
Gandhi issued 77 ordinances during
1971-77, at the rate of almost three ordi-
nances every two months. The Rajiv
Gandhi government issued 35 ordi-
nances in five years from 1985-89 while
the minority Congress government of
PV Narasimha Rao issued 77 during its
five-year term. The left-backed United
Front government which was supported
by the Congress from the outside passed
only 61 Bills during its 1996-98 term
under two prime ministers, HD Deve
Gowda and IK Gujral, but issued a
record 77 ordinances at a strike rate of
more than three per month. The first
NDA government, headed by the BJP’s
Atal Bihari Vajpayee issued 58 ordi-
nances between 1998 and 2004, at a
rate of nine a year.
While the BJP may argue that Modi’s
government is neither breaking from
tradition nor doing something unconsti-
tutional, the fact is that ordinances must
remain an exception. The framers of the
Constitution did not envisage this right
for governments so they could address
their self-serving agenda. Modi would
do well to bear this in mind.
Lead/ Ordinance Raj
DEMONETISATION DRIVE
An ordinance was issued in 2016 to outlaw
the old `500 and `1,000 notes
UNI

18 May 14, 2018
IG events make news,
evoke media comment and
public concern. The Supr-
eme Court has evoked
national concern ever since
January 12, 2018, when its
four seniormost justices not only
released a letter they had written to the
chief justice of India (CJI) concerning
the ways the roster and collegium sys-
tems were working or not allowed to
work properly but also appealed to the
nation and history to rectify the current
unhappy state. Then followed letters to
the CJI by two of the four justices and
the motion for his removal was pro-
posed by seven political parties. This
was not accepted by the vice-chairman
of the Rajya Sabha because no prima
facie case for “proven misconduct” was
made out. The latest act was the
Union law minister’s letter rais-
ing several difficulties regard-
ing the elevation to the
Supreme Court of
Uttarakhand High Court
Chief Justice KM
Joseph. The Supreme
Court has now
deferred the decision
but the final resolu-
tion is expected soon.
The political execu-
tive has grudgingly tol-
erated an independent
judiciary since Pandit
Jawaharlal Nehru’s times
and also engaged simultane-
ously in considerable political
warfare over judicial appointments.
The present regime, after the
National Judicial Commission constitu-
tional amendment and the Act were
voided, has struggled to retain some
delaying and veto powers over the col-
legium’s decisions. This needless and
unseemly institutional confrontation
can be avoided; Parliament has plenary
powers to enact a new law which would
preserve the primacy of the five senior-
most justices of the Supreme Court. A
new law can, of course, be challenged
but the SCI has left intact the plenary
amendatory powers of Parliament.
JUSTICE FOR THE COMMON MAN
However, everyday justicing will not let
the big events eclipse the rights of
Indian citizens. That was the simple and
direct message of Justices S Murlidhar
and I Mehta when approached for the
release of 71-year-old Ram Kumar who
was illegally detained in the Institute
of Human Behaviour and Allied
Sciences (IHBAS).
Ram Kumar was “unbeknownst to
his family, taken away to IHBAS for
observation for two days” and his
“unlawful detention” was continued by
orders issued on November 5 and 20,
2017, by the Metropolitan Magistrate at
Rohini. His only fault was to express
anger by shouting and even creating a
“ruckus” at the law’s delays (he was a
petitioner-in-person). He was kept
under “observation” at IHBAS, though
not found to be maniac depressive or in
any way mentally unsound. While the
Delhi High Court reproached him for
suffering a “litigation neurosis”, it did
not concede any mental illness. It
ordered his release on November 25,
2017, but on April 26, 2018, gave a
seven-part detailed constitu-
tional judgment.
The judicial dis-
course is indeed aston-
ishing for it exudes jus-
tice. Not merely is it
clearly and elegantly
written, it also makes
an impassioned plea
for the “complete
dismantling of the
penal custodial
model of health
care” and an
alert for everyone
to view the mental
health law as “essentially
concerning the right to
treatment and care of
persons” consistent with their
rights to “liberty and dignity and
need for autonomy”.
B
Column/ Illegal Detention Prof Upendra Baxi
For a More Caring World...
ADelhiHighCourtjudgmentushersinanewdawnformillionsofIndianslivingwithmentalillness
Anthony Lawrence
JUDGES AGHAST
Justices I Mehta (above) and S Murlidhar (right) of the Delhi
High Court ruled against the illegal detention of a 71-year-old
at the Institute of Human Behaviour and Allied Sciences (left)
The Court recorded “numerous illegal-
ities” and found a “dismal failure of our
system, which includes the police, the
judiciary and mental health profession-
als to protect the fundamental rights of
an individual” and “disastrous conse-
quences that the abuse of the mental
health law can have for the right to lib-
erty, dignity and privacy”.
The High Court declared the deten-
tion unauthorised by law and the
Constitution, and in a rare judicial act,
extended the apologies of the judiciary
for this breach of rights, even when fully
mindful of the difficulties of heavily bur-
dened judicial officers. It understood
fully the artlessness of petitioners-in-
person, who also often consume adju-
dicative time but declined to relax its
vigilance concerning the violation of
basic rights. Besides elaborately con-
demning the act, the Court directed the
Delhi government to pay `2 lakh to the
petitioner for this lawless detention.
The consequential reliefs are also
reminiscent of the halcyon days of
Justices PN Bhagwati and Krishna Iyer.
The Delhi High Court directed the
Rohini court to decide the matter expe-
ditiously; it also directed the Medical
Council of India to examine the full
archives for further action, where neces-
sary, in 12 weeks against the concerned
doctors for illegal confinement. Initial
exercises by all legal aid and mental
health authorities are to be completed
within six months and “ongoing” exer-
cises stand directed to determine the
number of inmates held illegally and to
conduct a survey of facilities.
FUTURE REDRESSAL
What is more, the Delhi Judicial
Academy was directed to annually
engage at least four orientation pro-
grammes in association with mental
health, legal aid, and police authorities.
Perhaps, the Court in future can also
draw the attention of local bar associa-
tions and the State Bar Council along-
side the Bar Council of India to organise
awareness in such cases: the fact that
the case was vehemently defended
comes as a constitutional shock.
The High Court took notice of
Section 23 of the Mental Health Act
which authorises the police to “take or
cause to be taken into protection any
person found wandering at large within
the limits of his station whom he has
reason to believe to be so mentally ill as
to be incapable of taking care of him-
self” and “has reason to believe has
mental illness and is incapable of taking
care of himself”, or “to take under pro-
tection any person within the limits of
the police station whom the officer has
reason to believe to be a risk to himself
or others by reason of mental illness”.
The law also directed the police to
inform relatives; in this sense, this is
“power coupled with the duty”.
But Section 100 of the new Act repli-
cates Section 23. Un-canalised discre-
tion is permitted to the police to initially
determine the moral thresholds of men-
tal illness.
The law still ambivalently permits
involuntary institutionalisation under
Sections 89 and 90 if one has recently
threatened or attempted to cause bodily
harm to oneself, behaved violently
towards another person or caused some-
one to fear bodily harm.
Soon at least Section 100 of the new
Act must be invalidated as overbroad
(like Section 66-A of the Information
Technology Act). Let us hope also that
the High Court decision will be widely
emulated across the nation because it
ushers in a new dawn for millions of
Indian citizens suffering from, and liv-
ing with, psychiatric disabilities.
—The author is an international law
scholar, an acclaimed teacher
and a well-known writer
TheDelhiHighCourtdeclaredthe
detentionillegalandinararejudgment
apologisedforthebreachofrights,and
directedtheDelhigovernmentto
pay`2lakhtothevictim.
delhi.gov.in

Legal Eye/ Solitary Confinement
20 May 14, 2018
N a February night in
1998, Mohammad Aamir
Khan was just 18 years
old when the police in
Delhi picked him up.
They slapped 19 cases
against him; the charges included mur-
der, terrorism and waging war against
the nation. It wasn’t until 14 years later
that Khan was able to prove his inno-
cence and walk out of the prison a free
man. He was often placed in solitary
confinement in the Tihar and Ghazia-
bad jails; his only encounters with the
outside world were when he was escort-
ed out of the prison for court hearings.
“I saw the lights of the tower and heard
the sound of the boots of the guards and
I thought my entire life would pass
within these walls,” he writes in his
book, Framed as a Terrorist: My 14-Year
Struggle to Prove My Innocence.
Solitary confinement—“the hole” as it
is referred to in jails—has been interna-
tionally recognised as a form of torture
and experts, legal, behavioural and med-
ical, believe it can lead to more prob-
lems rather than remedies. Now India,
too, is taking steps to abolish the
appalling practice.
In a landmark judgment, the
Uttarakhand High Court on April 28,
2018, abolished the practice of keeping
death row convicts in isolation immedi-
ately after their sentencing. The division
bench of Justices Rajiv Sharma and
Alok Singh noted that solitary confine-
ment was an “anarchic and cruel prac-
tice which amounts to torture and can
cause immense pain, agony and anxiety”
to inmates. It added: “The convict shall
not be segregated till the sentence of
death has become final, conclusive and
indefeasible which cannot be annulled
or voided by any judicial or constitu-
tional procedure.” It further said that
the period to keep a convict sentenced
to death in isolation should be for the
shortest possible time i.e. two to three
days before execution of the sentence
and should be done only after the con-
vict has exhausted all the possible
options to the highest levels including
an appeal in the Supreme Court and a
mercy petition to the president.
Just a week earlier, in another case
involving solitary confinement, Neeraj
Bawana, an undertrial gangster, was
shifted from solitary confinement to a
regular ward under a Delhi High Court
order. The Court on April 20, 2018
directed the Tihar Jail administration to
shift Bawana as it felt that complete and
constant isolation of a prisoner could
drive him to total insanity.
Additional Sessions Judge Tarun
Inalandmarkjudgment,theUttarakhandHighCourt
hasabolishedthepracticeofsolitaryconfinement
ofdeathrowconvicts
By Usha Rani Das
O
Out Of The
Hell Hole
NeerajBawana(above)wasrecently
shiftedfromsolitaryconfinementtoa
regularwardundertheorderoftheDelhi
HighCourtwhichfeltcompleteisolation
coulddrivehimtoinsanity.
Sherawat noted that Bawana had been
kept in “the hole” for more than six
months without any order from compe-
tent authorities. “It is a matter of com-
mon knowledge that complete and con-
stant isolation of a prisoner may lead his
mind to total insanity, and it can active-
ly cause disaster to his physical and
mental health...” He directed the jail
administration to shift “the accused
immediately from his separate confine-
ment to some other secure ward, so that
he could move, talk and share company
with other co-prisoners.”
Supreme Court advocate Ajay Verma
told India Legal: “A prisoner is kept in
solitary confinement abiding by all the
rules which are mentioned in the Prison
Manual.” But there have been lapses by
the jail authorities in several cases
where prisoners have been kept in soli-
tary confinement without following any
proper procedure.
Khan writes in his book that he was
tortured and was not allowed to meet
anybody for months while in solitary
confinement. Bawana, who has been
chargesheeted in various cases including
offences under the Maharashtra Control
of Organised Crime Act (MCOCA), has
also alleged being kept in inhuman con-
ditions in the prison. He went on
hunger strike on March 19 and filed an
application in the Court asking the jail
authorities to provide him facilities
including proper food, medicines, a
In no circumstances may restric-
tions or disciplinary sanctions amount
to torture or other cruel, inhuman or
degrading treatment or punishment.
The following practices, in particular,
shall be prohibited:
(a) Indefinite solitary confinement;
(b) Prolonged solitary confinement
(confinement for a time period in
excess of 15 consecutive days);
(c) Placement of a prisoner in a dark
or constantly lit cell.
Solitary confinement shall be used
in exceptional cases as a last resort,
for as short a time as possible, sub-
ject to independent review, and only
pursuant to authorisation by a com-
petent authority. It shall not be impos-
ed by virtue of a prisoner’s sentence.
The imposition of solitary confine-
ment should be prohibited for prison-
ers with mental or physical disabilities
when their conditions would be exac-
erbated by such measures.
NelsonMandelaRules
forsolitaryconfinement
The United Nations Standard
Minimum Rules for the
Treatment of Prisoners (the
Nelson Mandela Rules), adopted
by the UN General Assembly on
December 17, 2015, after a five-
year revision, states:
“Isawthelightsofthetowerandheard
thesoundofthebootsoftheguards
andIthoughtmyentirelifewouldpass
withinthesewalls.”
—MAKhan,acquittedafter14years
Anthony Lawrence

TV set or else shift him from his solitary
cell in the high-risk ward of the jail.
Only last month, the National
Human Rights Commission, in a report
on allegations of torture of SIMI men by
officials in Bhopal jail, said that “the
prisoners testified to being kept in soli-
tary confinement in 5x8 feet cells with-
out fans, from where they were let out
for only a few minutes a day for filling
water and cleaning the area outside.
This had led to behavioural disorders
like anxiety, depression and frustration,
resulting in some of them turning agg-
ressive.” These incidents point to gross
violation of the fundamental rights of
the prisoners.
Dr JM Wadhawan, psychiatrist at Sir
Ganga Ram Hospital, told India Legal:
“A prisoner in solitary confinement is
deprived of any stimuli from the outside
world. We as a human being need to
22 May 14, 2018
have some social contacts. It has been
reported that they crave to share any-
thing with anybody and anything. There
have been incidences where people lie
on the floor for days, trying to feel any
vibration. They try to listen to anything.
They often suffer from anxiety, stress
and depression. Isolation affects them
psychologically and physiologically also.”
Even the Uttarakhand High Court
order cited studies which found convicts
in isolation suffered from palpitations,
insomnia, back and other joint pains,
deterioration of eyesight, poor appetite,
diarrhoea, weakness, schizophrenia, and
self-harm and suicidal tendencies.
On March 31, 2014, a Supreme Court
Bench consisting of the then Chief
Justice of India, P Sathasivam, and Jus-
tices RM Lodha, HL Dattu and SJ Mu-
khopadhaya commuted the death sen-
tence of Devenderpal Singh Bhullar,
convicted in the 1993 Delhi bomb blast
case that targeted the then Youth Con-
gress President, Maninderjeet Singh
Bitta, on grounds of delay of eight years
in disposing of his mercy petition and
his mental illness. Medical reports say
that Bhullar suffers from schizophrenia.
Referring to the apex court’s ruling
POWER TRUMPS COMPASSION
Cops at the site where eight SIMI men were shot
after a Bhopal jailbreak. A recent report says SIMI
activists are kept there in solitary confinement
DelhiJailManualon
solitaryconfinement
Solitaryconfinementis
an“anarchicandcruel
practicewhichamounts
totortureandcancause
immensepain,agony
andanxiety”,theHigh
CourtbenchofJustices
RajivSharma(farleft)
andAlokSinghnoted.
UNI
No prisoner should be placed in
solitary confinement until the med-
ical officer certifies on the history-
ticket that he is fit to undergo it.
The execution of a sentence of
solitary confinement need be post-
poned on account of an appeal hav-
ing been lodged.
Every prisoner undergoing solitary
confinement shall be visited daily by
the Medical Officer.
Any prisoner undergoing solitary
confinement shall, under the orders
of the Medical Officer on the ground
that continuation of such confine-
ment would be likely to prove injuri-
ous to mind or body, be forthwith
removed from the cell or place in
which he is confined. The Medical
Officer shall make a record of the
order in his journal.
If a prisoner sentenced to solitary
confinement be declared by the
Medical Officer to be permanently
unfit to undergo such confinement,
the fact shall be reported to the
court which awarded the sentence.
Each cell for solitary confinement
should have a yard attached where
the occupant can have the benefit
of fresh air without the means of
communicating with any other pris-
oner and suitable means for ablution
and sanitation should also be
provided.
in Shatrughan Chauhan & Anr
vs Union of India and Ors that
“unexplained and inordinate
delay in deciding the mercy
petition is a ground for com-
mutation of death sentence to
life imprisonment”, the bench
also took note of his mental
illness. It said: “The patient
has been diagnosed with
severe depression with psy-
chotic features (treatment
refractory depression) with
hypertension with dyslipi-
demia with lumbo-cervical
spondylosis with mild
prostatomegaly. He is current-
ly receiving anti-depressant,
anti-psychotic, anti-anxiety, anti-hyper-
tensives, hypolipaedemic, anti-convul-
sant (for neuropathic pain) and antacid
drugs in adequate doses along with sup-
portive psychotherapy and physiothera-
py. Patient has shown partial and incon-
sistent response to the treatment with
significant fluctuations in the severity of
his clinical condition.”
In January 2014, a three-judge
bench headed by Sathasivam had com-
muted the death sentence of 15 death
row convicts. One of the reasons cited
was “death-row prisoners lost their
mental balance on account of prolonged
anxiety and suffering experienced on
death row” due to solitary confinement.
Bhupendra Singh, Additional D-G,
Prisons, Rajasthan, told India Legal: “A
prisoner is kept in solitary confinement
when he is a possible danger to himself
or to others. Though I do not have much
experience with solitary confinement,
there have been reports where a person
commits suicide in the solitary cell. This
might have an impact on others.”
But the fact that it is often carried
out as a form of torture cannot be de-
nied. Sana Das, coordinator of the
Pris-on Reforms Programme at the
Comm-onwealth Human Rights Initia-
tive, wrote in a newsletter: “Solitary
confinement is a shortcut to the socio-
psychological ‘death’ of prisoners. It has
severe, adverse and irreversible psycho-
logical impact. It induces a psychiatric
disorder characterized by hypersen-
sitivity to external stimuli, hallucina-
tions, panic attacks, cognitive deficits,
obsessive thinking, paranoia, and a list
of other physical and psychological
problems… It is counter-productive to
the purposes of both prison discipline
and correction. Inmates become more
aggressive and are more prone to com-
mit violent crimes post-confinement,
thus increasing recidivism. Moreover,
it undoes the correctional spirit by
which modern prison systems are to
conduct themselves.”
In a report in the Economic and
An October 2017 report in The Times Of
India stated that over 300 aged inmates
continue to languish in Tamil Nadu’s jails
with several health problems. Some had
become blind and deaf, some suffered
from chronic illnesses and others were
paralysed. Compassionate, medical, or
geriatric prisoner release laws have been
around since the 1980s but are rarely used.
Prof NR Madhava Menon told India
Legal: “Reforms needed here are minimis-
ing arrest, not to arrest without a warrant
unless it is a very serious offence, make
bail as liberal as possible and ensure that
undertrials, senior citizens and disabled
prisoners who are entitled to leave are
released on time.”
There is a view that those who are 75
years and above and are not charged with
any heinous crimes and are not serial
offenders should not be arrested and put in
jail for their first offence. There is also the
issue of the high medical costs that prisons
have to bear to support aged inmates.
“Arrestshavetobeminimised”
Prof NR Madhava Menon, Founder Director of National Law School of India
University, Bengaluru, outlines a key reform in the criminal justice system
OnMarch31,2014,aSupremeCourtbenchcomprising(L-R)thenChiefJusticeofIndia
PSathasivamandJusticesRMLodha,HLDattuandSJMukhopadhayacommutedthedeath
sentenceofDevenderpalSinghBhullar,convictedinthe1993Delhibombblastcase.

Political Weekly on April 7, 2018, the
Persecuted Prisoners Solidarity
Committee (PPSC) condemned the arbi-
trary and illegal manner in which the
undertrials arrested following the crack-
down on the Mazdoor Sangathan Samiti
(MSS) were kept in solitary confinement
in Giridih Central Jail. The MSS, a reg-
istered trade union, was banned on
December 22, 2017 by Jharkhand, fol-
lowing which people were arrested and
kept in solitary confinement since
March 23, 2018. The prisoners went on
a hunger strike following which the jail
authorities have allowed them to mingle
with others twice a day for two hours.
24 May 14, 2018
vision. It dehumanises a prisoner and
prevents his treatment as a ‘person’. In
short, solitary confinement violates the
very right to life with dignity.”
In 2016, the then President of the
United States, Barack Obama, wrote in
The Washington Post: “The United
States is a nation of second chances, but
the experience of solitary confinement
too often undercuts that second chance.
Those who do make it out often have
trouble holding down jobs, reuniting
with family and becoming productive
members of society. Imagine having
served your time and then being
unable to hand change over to a cus-
tomer or look your wife in the eye or
hug your children… How can we subject
prisoners to unnecessary solitary
confinement, knowing its effects, and
then expect them to return to our
communities as whole people? It
doesn’t make us safer. It’s an affront to
our common humanity.”
It is high time prisoners are treated
as human beings and given the freedom
to live their lives with dignity in jail.The
Uttarakhand HC has taken a step in the
right direction.
Section 73 states: “…the offender
shall be kept in solitary confinement
for any portion or portions of the
imprisonment to which he is sen-
tenced, not exceeding three months
in the whole, according to the follow-
ing scale, that is to say—a time not
exceeding one month if the term of
imprisonment shall not exceed six
months; a time not exceeding two
months if the term of imprisonment
shall exceed six months and 1[shall
not exceed one] year; a time not
exceeding three months if the term of
imprisonment shall exceed one year.”
Section 74 states the limit of con-
finement: “In executing a sentence of
solitary confinement, such confine-
ment shall in no case exceed fourteen
days at a time, with intervals between
the periods of solitary confinement of
not less duration than such periods;
and when the imprisonment awarded
shall exceed three months, the soli-
tary confinement shall not exceed
seven days in any one month of the
whole imprisonment awarded, with
intervals between the periods of soli-
tary confinement of not less duration
than such periods.”
Goingbythebook
Convicts are kept in solitary con-
finement under Sections 73 and
74 of the Indian Penal Code under
the order of a court
The report states: “This continues to be
in violation of the constitutional and
statutory rights of prisoners as guaran-
teed by the law of the land. According
to information received from the rela-
tives of these prisoners, the cells in
which they have been kept are unclean
and without any basic facilities.
Relatives have been prevented from giv-
ing them basic items like mosquito
repellents, food and clothes. The num-
ber of visitors and frequency of visits
have also been arbitrarily curtailed.”
Internationally, solitary confinement
is recognised as a form of torture and
India is a signatory to the Convention
against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment, 1987. In 2011, United
Nations experts called on all the coun-
tries to ban solitary confinement of
prisoners except in very exceptional cir-
cumstances and for as short a time as
possible. But the practice continues
unabated around the world.
Said Das of the Commonwealth
Human Rights Initiative, “The power to
place a prisoner in excessive hours of
lock-up, deprived of any form of commu-
nication, mobility and access to ameni-
ties and facilities provided in prison, soli-
tary confinement is a dehumanising
power. It places unbridled power in the
hands of prison authorities to apply
excessive use of force on a person con-
signed to safe custody under their super-
AWAITING JUDGMENT: Prisoners being
taken to Tis Hazari Courts in Delhi
Anil Shakya

“It Is The Duty Of A Judge
To Withstand Pressure”
Conclave/ Justice Swatanter Kumar
26 May 14, 2018
mar took over as chairperson in Dec-
ember 20, 2012, and for the next five
years, he was at its helm, leaving an
indelible mark by handing down several
path-breaking judgments. After his
retirement, the NGT functions with an
acting chief and the centre has shown
no urgency in filling up the many vacan-
cies at the top and in zonal benches.
Consequently, litigants are put to much
hardship. Rai’s question centred aro-
HE delay in filling up pend-
ing vacancies, both judicial
and expert members, in the
National Green Tribunal
(NGT) is affecting its work,
former chairman of the
panel Justice Swatanter Kumar stated.
Appearing on the India Legal Show, his
first ever interaction with any media
entity since he stepped down as the
NGT chief in December last year, Jus-
tice Kumar answered questions on a
wide array of subjects ranging from his
long career that included stints as a
judge of the Delhi, Punjab and Haryana
ThegreenpanelwhichwashyperactiveduringJusticeSwatanterKumar’stenureisheadless
nowandtherearenosignsofthegovernmentshowinganyurgencytofillupvacancies
By Lilly Paul
T
and Himachal high courts, the chief jus-
tice of the Bombay High Court and a
judge of the Supreme court to his most
recent one as head of the NGT.
Replying to a question by Senior
Advocate, Supreme Court, Pradeep
Rai on vacancies being left unfilled in
the NGT, Justice Kumar said that
filling up posts in NGT is a continuing
process but admitted that he had not
kept track of the developments after
his retirement.
The green watchdog was founded in
2010 to protect the environment and
keep a check on pollution. Justice Ku-
GREEN CONCERNS: Justice Swatanter Kumar (centre) flanked by Pradeep Rai, senior
advocate, Supreme Court (third from left); Rajshri Rai, editor-in-chief, APN (third from right);
Inderjit Badhwar, editor-in-chief, India Legal (second from right); Shobha John, deputy
managing editor, India Legal (first from right); Ashok Damodaran, executive editor, India
Legal (second from left) and Puneet Nicholas Yadav, deputy editor, India Legal
und a general perception that in the
absence of a chairman, the NGT, which
had been hyperactive for the last five
years, is showing signs of floundering.
Among the remarkable judgments
that Justice Kumar delivered are the
ban on old vehicles in Delhi, the fine of
`5 crore imposed on spiritual guru Sri
Sri Ravi Shankar for causing damage to
the Yamuna floodplains, ban on plastic
bags, putting a daily cap on pilgrims to
Vaishno Devi and restricting traffic to
the Rohtang Pass.
D
escribing his role in NGT, Jus-
tice Kumar said it was very dis-
tinct from the rest of the res-
ponsibilities he had handled, although
he had 20 years of judgeship prior to
joining the Tribunal. He said that the
one sense of satisfaction with which he
left office was that the green court was
successful in raising public conscious-
ness and awareness about environment.
Although the apex court and the high
courts had passed several serious orders
for protecting the environment, it was
the NGT which had played a guiding
role in environment conservation. He
counts it as one NGT’s primary achieve-
ments—it could make different sections
of society such as the government,
industrialists, working class and even
school children conscious about protect-
ing the environment. Justice Kumar
said that people may at times find
NGT’s orders inconvenient but what is
important is that those judgments could
trigger a debate.
Justice Kumar highlighted the fact
that environment is a social subject and
therefore a collective effort is needed to
preserve it. He said that the society
should think that it needs clean air and
water but at the same time the govern-
ment should not shift its responsibilities
and these matters should reach the
court at last.
Rajshri Rai, editor-in-chief of APN
(India Legal ’s sister concern) and the
host of the show, asked Justice Kumar
about the many pressures that he may
have been subjected to from various lob-
bies. To which he replied: “See, by the
time I came to NGT, I already had 20
years of judgeship with me. So I never
felt a pressure. I stood by my conscience
and what the law demanded. I didn’t
care who thinks what... how can you
bother about what people will think,
what people want, what parties want.
There were many lobbies before NGT,
be it the welders’ lobby, mining lobby,
forest lobby, development lobby, people
who were destroying the wetlands, pro-
tected lands on the seas; you knew that
they were people with strengths. And, I
think it is the duty of the judge to with-
stand the strengths.”
Inderjit Badhwar, editor-in-chief of
India Legal magazine, asked him about
the ongoing tussle in the judiciary, to
which Justice Kumar replied that a chief
justice should ensure that all the judges
are taken along as they represent an
institution. “I was the chief justice of the
Bombay High Court. I found no difficul-
ty to run that court. I was able to do a
lot of infrastructure work, judicial dis-
pensation increased and all the judges
deserve compliments.”
W
hen the NGT was founded,
the narrative prevalent was of
development versus conserva-
tion. But over the years, it seems that
subsequent governments have felt that it
has been vested with too many powers
and there have been constant attempts
to weaken the Tribunal such as taking
away certain powers, not appointing
people, so on and so forth.
Justice Kumar was of the opinion
that the NGT is only one of its kind in
the world as environmental courts in
other countries are vested with a few
regulatory powers while this Tribunal
has sweeping powers including the
power to take punitive action.
One question put to Justice Kumar
was that though NGT orders passed
were strong in themselves, they were
hardly implemented. An example cited
was the Art Of Living order, wherein the
spiritual guru Sri Sri Ravi Shankar had
gone to the extent of saying that he will
not pay the fine imposed, implying that
a court order was being wilfully defied.
Justice Kumar, however, said that the
the organisation had to and did pay the
fine. He repeated his stance that execu-
tion all over the world is a problem but
people have started realising that efforts
should be made by them. However, he
also said that “change” would not be a
correct word to use as it would con-
AmongNGT’smanynotablejudgments
arethebanonoldvehiclesinDelhi,ban
onplasticbags,`5crorefineon
SriSriRaviShankar’sArtofLivingand
adailycaponpilgrimstoVaishnoDevi.
SAVING OUR
RIVERS
The NGT under
Justice Swatanter
Kumar passed
several critical
judgments
against polluting
Yamuna river (left)
and the Ganga

JusticeKumarsaidthatbythetimehe
hadcometoNGT,healreadyhad20
yearsofjudgeshipwithhim.So,henever
feltanypressureandstoodbyhis
conscienceanddidwhatthelawsaid.
note a total alteration, a stage to which
“we haven’t reached. Rather, it would be
appropriate to say that there have been
variation in the attitude of people.”
Justice Kumar was asked about
NGT’s decision to ban decade-old diesel
vehicles and 15-year-old petrol vehicles
in Delhi-NCR. Even if the NGT’s order
was aimed at solving the environmental
crisis in Delhi-NCR, it created a new
problem of disposal of those banned
vehicles. Even if they were to be sold,
they would create pollution in the place
they are sold in. Justice Kumar said that
the solution to the problem was already
given in the judgment itself, which
unfortunately had gone unnoticed as
people usually fail to interpret the judg-
ment in its entirety.
J
ustice Kumar explained that the
judgment clearly states that an air
quality analysis needs to be done of
the area in which these vehicles will
operate outside Delhi-NCR. The density
of cars in that area also needs to be
determined, he said. If both the things
are within the permitted scale of pollu-
tion, then the vehicle should be sold in
that place, otherwise not, he clarified.
Referring to cars that will be dis-
posed off, he said that the NGT had
clearly said that it will be done only
after providing incentives to owners and
the scrap must be recycled.
Speaking about the odd-even rule
introduced briefly in Delhi sometime
back, Justice Kumar said that he was of
the personal opinion that the scheme
was ineffective. Rather, he had suggest-
ed a much better alternative—to provide
direct point-to-point bus services from
colonies such as Dwarka and Rohini,
where the majority of people are office-
goers and therefore they will be happy
to travel in an economical, fast and
more convenient way.
Justice Kumar was asked about his
opinion on the river linking project
being contemplated by the government,
given that there was a scientific view
that it could lead to ecological degrada-
tion. “There is a judgment of the
Supreme Court permitting interlinking
of rivers. That was done after three dif-
ferent, highly-placed technocrats and
academicians from the field of hydrolo-
gy and other connected sciences said
that there were consistent reports that
interlinking of rivers was one of the
major steps that can be taken to prevent
droughts on the one hand and floods on
the other. However, despite the judg-
ment, there should be a proper study
and all precautions should be taken
as possible.”
Another question put before Justice
Kumar was the problem of illegal con-
struction which he dealt with during his
tenure in the Himachal Pradesh High
Court and the current Delhi sealing
drive, and the problem of practical
implementation associated with such
judgments. Justice Kumar responded by
giving an example of the unfortunate
incident that happened in Kasauli
recently where a lady officer who went
for demolition of an illegal construction
was shot dead.
“In Kasauli, there was a person who
was permitted to build three rooms and
he raised a five-storey hotel. He has no
system for disposal of municipal solid
waste, se-wage, no pollution devices, no
source of water. If you are asking about
demolition of that particular construc-
tion, then I do not think law should
worry about it. Because if you do not
check it now, it will have three repercus-
sions—people will take law for granted;
damage to the nature and natural
resources will be irreparable and thirdly,
you are risking the life of others. If you
have invested in violating the law, then
you very well face the consequences,”
said Justice Kumar.
When asked which of his judgments
satisfied him the most, Justice Kumar
said: “I will give preference to Yamuna
and Ganga. As a very ordinary citizen of
this country, I can say that the Ganga
can be cleaned and the issue is definitely
resolvable. Ganga can be cleaned and it
must be cleaned.”
28 May 14, 2018
Conclave/ Justice Swatanter Kumar
FOR
CLEAN AIR
Pollution in
Delhi is a
major issue
and the green
court’s earnest
efforts to
reduce it are
remarkable
Courts/ Gorakhpur Children’s Deaths
place as he arranged for oxygen cylin-
ders through his own pocket in order to
save lives. A committee headed by Chief
Secretary Rajive Kumar, which carried
out an inquiry into the tragedy, recom-
mended criminal action against the
principal, Dr Mishra; head of the
department, anaesthesia, Dr Satish;
Khan and Bhandari of Pushpa Sales, the
vendor of oxygen.
According to Khan, the inquiry
charged him with negligence in duties
which resulted in the shortage of oxygen
to make a “scapegoat” out of him to
“cover up the administrative failure and
for exposing the system” which angered
the CM. In a letter written from jail
Khan said that the oxygen vendor was
not paid as the funds were not released.
With the police filing a chargesheet
in the case, Khan yearns to return to his
job. That’s the least the government can
do to restore his honour.
Aherowhosavedmanylives,DrKafeelAhmedKhanwassoughttobe
paintedasavillainbytheUttarPradeshgovernment
By Atul Chandra in Lucknow
FTER eight months in jail,
a traumatised Dr Kafeel Ah-
med Khan of Gorakhpur’s
BRD Medical College
walked out of jail on April
28, three days after he was granted bail
by the Allahabad High Court.
After coming out of jail, Khan said:
“The honourable high court has clearly
said that there is no evidence against
me. You know what my family went
through in the last eight months. I do
not know what my fault is.”
Khan was arrested in September
2017 following the death of 32 children
in the 100-bed Acute Encephalitis
Syndrome ward on August 10-11 due to
disruption in the oxygen supply. For
some inexplicable reason, the UP gov-
ernment did not attribute the infant
deaths to shortage of oxygen in its affi-
davit filed before the High Court.
With Gorakhpur being the chief
minister’s constituency, the tragedy
rocked the Adityanath government. The
Medical College’s principal, Dr RK
Mishra, and the oxygen supplier, Man-
eesh Bhandari, were also arrested along
with Khan. Bhandari, it was alleged, had
stopped the oxygen supply over non-
payment of dues. While Bhandari got
bail from the Supreme Court on April 9,
Mishra continues to languish in jail as
the High Court turned down his bail
application on April 30. The former
principal faces charges under IPC
Sections 409 (criminal breach of trust),
308 (attempt to commit culpable homi-
cide) and 120B (criminal conspiracy),
besides Section 7/13 of the Prevention of
Corruption Act.
In the case of Khan, an assistant pro-
fessor in the paediatrics department,
who was charged with criminal conspir-
acy and medical negligence, Justice
Yashwant Varma of the High Court
found no evidence to support the
charges. “There is no material on record
which may establish medical negligence
against the accused individually,” the
judge said. He also pointed out that no
inquiry, as mandated by the apex court
in a different case, was carried out.
The Court’s order read: “Learned
AGA states that no aspect of investiga-
tion remains outstanding. This clearly
obviates the need for the continued cus-
tody of the accused. The State in its
application also does not refer to any
evidence which may establish or tend to
indicate that the applicant has tried to
influence witnesses or to tamper with
the evidence.” The Court also took into
consideration the poor health of Khan
and the fact that the charge of corrup-
tion against him was dropped during
the course of investigation. Contrary to
his image of being a villain as portrayed
by the government, Khan was hailed as
a hero on the nights the tragedy took
A
SCAPEGOAT!
DOCTOR’S ROLE
(Left) Khan was a
guardian angel for the
children in the BRD
College tragedy; (inset)
after his release

Acts & Bills/ Rajasthan Guaranteed Delivery of Public Services Act
30 May 14, 2018
T is governance at a standstill.
Though the Rajasthan Guaranteed
Delivery of Public Services Act was
enacted in 2011, matters have
hardly moved for the population of
7.5 crore. Due to poor delivery of
public services and lack of implementa-
tion of the Act, the state government has
received 5.81 crore complaints in
seven years from citizens demanding
services to them be rendered within the
stipulated time limit. Though this Act
has a provision for penalising erring
officials who fail to deliver the services,
just over `23,000 was recovered as
penalty on officials.
The Congress government in
November 2011 introduced this Act in
the state with all good intentions and to
bring government employees, called
“public authority”, under the statute so
that they would work effectively and in a
time-bound manner for the interests of
the people. The “public authority”
includes any authority, body or institu-
tion constituted by or under any, con-
trolled or substantially financed, directly
or indirectly, by the funds provided by
the state government. The “right to serv-
ice” means the right to obtain a service
within the stipulated time limit under
Section 4 of the Act.
STATUTORY RIGHT
Under this Act, 211 services under 25
departments of the state government
are covered. Ashok Gehlot, former chief
minister, under whom this Act was
enacted, told India Legal: “The state
government is committed to ensuring a
transparent and responsive administra-
tion and time-bound delivery of services
to citizens. It is the statutory right of the
citizens to obtain specified public servic-
es within a stipulated time and if the
public authorities fail to provide such
services within the stipulated period,
they should be made liable to pay penal-
ty. The huge number of complainants
itself proves that the BJP government
made a mockery of an effective Act.”
The Act also provides that if the des-
ignated officers fail to provide a service
in the maximum time allowed without
ThoughthisActwasenactedin2011
tomakegovernanceaccountable,
thestategovernmenthasreceiveda
whopping5.81crorecomplaints
aboutdeficiencyinservicesin
variousdepartments
By Prakash Bhandari
in Jaipur
I
Sluggish
Sarkar
CITIZENS COME FIRST
Rajasthan government employees at a workshop on
education; (facing page) former Chief Minister
Ashok Gehlot, whose government introduced the
Rajasthan Guaranteed Delivery of Public Services
Act, meets a constituent
sufficient and reasonable cause, they will
be liable to pay a penalty of no less than
`500. The “stipulated time limit” is the
most important aspect of the Act. It
guarantees speedy disposal of work that
would reduce corruption. The officials
are bound to speedily dispose of matters
and any failure on their part would
result in penalties. The penalties would
reflect a poor service record and affect
promotional avenues of these officers.
When the Act was passed in Nov-
ember 2011, it was hoped this would
lead to administration reform and result
in efficient delivery of services.
Archana Sharma, a Congress
spokesperson, said: “The Congress gov-
ernment introduced this Act with the
sincere intention of making government
officials accountable. The Congress edu-
cated both the officials and the citizens
and the system worked well till
December 2013 when the BJP came to
power with Vasundhara Raje as the
chief minister. By November 30, 2017,
due to poor governance and the apathy
of officials, as many as 5.81 crore com-
plaints were received by the state gov-
ernment of delay in disposal of cases
and inordinate delay in delivery of serv-
ice, proving that the Vasundhara Raje
government failed to deliver basic serv-
ices, which is the right of citizens.”
While an official of the state govern-
ment’s administrative reforms depart-
ment admitted that the government
had received 5.81 crore complaints, he
said that by March 31, 2018, a large
number of the complainants were
redressed and currently only 1.33 lakh
matters were pending.
But Sharma rebutted this by asking
how a government that had received
5.81 crore complaints till November
2017 could dispose of so many com-
plaints in just five months. “What is
surprising is that over the seven years
since the Act came into effect, only
`23,500 was imposed on erring offi-
cials. The Vasundhara government is
misleading the people, and the Act
has become a mockery in the hands of
the officials.”
The competent appellate officer
can impose a penalty which was set
not to be less than `500 and not
more than `5,000. The appellate offi-
cer can also impose a penalty of
`250 per day for undue delay.
The stipulated time for clearance of
appeals will vary from an hour in
some cases to 24 hours. In the case
of appeals made with regard to
post-mortem reports, this can go up
to 45 days.
The time will be calculated
from the day of the submission of
the appeal.
The designated officer of the
department may reject an application
for a notified service, having recorded
the reason in writing and informing
the applicant.
A person whose application for a
specific service or work is rejected
would be entitled to approach
the first appellate officer and there-
after, the second appellate officer with
his grievances.
The officials are accountable to
ensure that either the desired service
is provided or explain the limitations
for not providing it.
Makinggovernanceeasy
Provisions of the Rajasthan
Guaranteed Delivery of Public
Services Act
photos:UNI

HUGE NUMBER
Information received through RTI
reveals that in Jaipur district, the num-
ber of complaints received in the last
seven years exceeded its total popula-
tion. According to the last census, the
population of Jaipur was 68.26 lakh. As
against this, the total number of com-
plaints was 79.51 lakh.
Interestingly, not only Jodhpur, the
second largest district in the state, but
also other districts such as Ajmer,
Bhilwara, Alwar, Chittorgarh, Jhalawar,
Nagaur, Sikar and Tonk also exceeded
their population figures by
way of complaints (see
box). Thus, out of the 33
districts in Rajasthan, 10
districts had more than 20
lakh complainants, while
10 districts had less than
10 lakh. Out of `23,500
that was imposed as
penalty, the highest
amount—`15,500—was
imposed in Udaipur dis-
trict which received 27.54
lakh complaints.
“The complaints
include those made in
2012 when the Act
became effective under the
Congress government. But while the
complaints were in lakhs during the
Congress regime, it snowballed to crores
during the BJP regime,” said Suraj
Khatri, an advocate.
What is surprising is that a large
section of state government employees,
whose number exceeds 20 lakh, are
among those who suffered. “State
government employees who sent their
applications for correcting discrepan-
cies in pay scale and other issues were
among those who could not get their
grievances settled in the stipulated
time. Such complainants are in lakhs,”
said Ram Krishna Agarwal, president
of the All Rajasthan Teachers
Association.
Talk about poor governance.
RETURN TO STATUS QUO
(Top) Vasundhara Raje, in
whose tenure the Act has
become ineffectual; a protest
by anganwadi workers
Acts & Bills/ Rajasthan Guaranteed Delivery of Public Services Act
STEEPNUMBERS
Districts in Rajasthan with more than 20 lakh
complaints
District
Total number
of complaints
Pending
matters
Jaipur 79,51,542 15,479
Jodhpur 43,77,780 3,976
Bhilwara 29,18,716 3,843
Sikar 28,65,699 1,397
Udaipur 27,87,919 9,596
Ajmer 26,89,474 1,595
Alwar 22,79,113 2,165
Nagaur 22,19,919 3,356
Kota 20,74,928 2,963
Jhunjhunu 20,74,928 1,000
Districts with less than 10 lakh complaints
Bundi 9,93,385 679
Dausa 9,53,512 149
Dholpur 95,24,443 139
Sirohi 9,36,091 156
Rajsamand 8,90,255 1,105
Sawaimadhopur 8,75,485 4,207
Baran 8,65,270 510
Jaisalmer 6,52,928 1,596
Dungarpur 5,95,507 435
Karauli 4,71,120 126
Source: Rajasthan’s administrative reforms department
32 May 14, 2018
Petitioners with
cases before the
National Green
Tribunal are suffering
as the tribunal has
temporarily closed
down its regional
benches in Pune,
Bhopal, Chennai and
Kolkata. This has led to
several petitioners trav-
elling to Delhi to get
their matters heard
before the principal
bench. The tri-
bunal, which
has a sanc-
tioned strength
of one chairper-
son, 10 judicial
members and
10 expert members, has
only three judicial
members, including
acting chairperson
Justice Jawad Rahim
and two expert mem-
bers. Despite the NGT
writing to the Union
environment ministry
requesting expediting
of the process of app-
ointments to the tribu-
nal, the situation has
remained unaltered.
Briefs
The ministry of social justice and
empowerment is contemplating a
recommendation by a government
panel on extending the ambit of the
SC/ST (Prevention of Atrocities) Act to
cover members of Denotified Nomadic
and Semi-Nomadic Tribes as well. The
report, submitted by the National
Commission for Denotified Nomadic
and Semi-Nomadic Tribes, had called
the communities the poorest of the
poor and the most marginalised who
have been subjected to social stigma,
atrocities and exclusion.
Ramdas Athawale, minister
of state for social justice and
empowerment, said that
his ministry is consider-
ing the inclusion of
these communities
within the
Atrocities Act.
Denotified nomadic tribes
under Atrocities Act?
Nirmal Singh, the deputy chief minis-
ter of Jammu and Kashmir, has
stepped down following the backlash the
BJP is facing in the state post the Kathua
rape incident in which an eight-year-old
was abducted, drugged, gangraped and
murdered. Assembly Speaker Kavinder
Gupta has taken over the post. Singh
served as mayor of Jammu for three
terms between 2005 and 2010. He was
the one who had supported
Chief Minister Mehbooba
Mufti’s decision to conduct
a crime branch probe into
the gangrape and murder
case, given the other BJP
leaders were crusad-
ing for a CBI
inquiry.
Nirmal Singh steps down
as deputy CM of J&K
—Compiled by Lilly Paul
NGT benches shut, petitioners
forced to travel to Delhi
Gangster Chhota Rajan and
shooter Satish Kaliya, along
with seven other convicts, were sen-
tenced to life imprisonment by the
special Maharashtra Control of
Organised Crime Act (MCOCA)
court in Mumbai for journalist
Jyotirmoy Dey’s
murder. Dey, who
was shot dead in
June 2011, was
killed at the behest
of Chhota Rajan.
Special
MCOCA judge
Justice Sameer
Adkar in his judg-
ment said that
Rajan’s “ego would
have been hurt”
by Dey’s reports.
The court also
observed that Rajan got Dey killed
because he wanted to send out a pub-
lic message that his crime business
was still “alive and kicking”. The
court had earlier acquitted Jigna
Vora, a former journalist, due to lack
of evidence.
ChhotaRajangetslifeforjournalist’smurder
The central govern-
ment has said that it
does not have files of 47
cases in which it had
earlier denied sanction
to prosecute defence
forces officials for alleged
human rights violations
committed in Jammu &
Kashmir. The ministry
of defence in January
had informed the parlia-
ment that it had received
requests from the
Jammu and Kashmir
government for sanction
to prosecute security
personnel in 50 cases
that occurred between
2001 and 2016. The gov-
ernment had denied
sanction for prosecution
in 47 cases which alleged
crimes by security per-
sonnel, including 17
cases of civilian murders,
two rape cases, 10 deaths
in security operations,
three deaths in custo-
dial torture, and seven
cases of disappearance,
among others.
Govt stonewalls rights violation pleas

India Legal 14 May 2018

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India Legal 14 May 2018