India Legal - 16 December 2019

NDIA EGALL STORIES THAT COUNT
I
December16, 2019
Madhav Godbole: The
erosion of secularism
Char Dham: State
versus the priests
NoWoman’sLandThegangrapeofaHyderabaddoctorhasonceagaindemonstratedthatbetween
patriarchallawandurbananomie,sucheventswillrecurtocompoundthehollownessof
governanceandrightsinIndia

HE announcement by US House of
Representatives Speaker Nancy Pelosi
that articles of impeachment would
now be drawn up against President
Donald Trump was in large part the
outcome of free, frank and fearless testimony
given publicly and under oath by witnesses
who considered it their patriotic duty to expose
and condemn official wrongdoing even at the
expense of their own careers and, perhaps, even
personal safety.
Collectively, the evidence they proffered
corroborated the charge that President Trump
tried to bully and badger Ukraine—an ally—to
help him destroy a domestic political opponent
through nefarious means and sacrificed
American national interest at the altar of his per-
sonal agenda.
Initially, the witnesses before the House In-
telligence Committee were mostly civil servants—
career foreign service officers, ambassadors,
national security advisers and analysts, senior
State Department officials—with a sprinkling of
political appointees, who reported through a
chain of command to POTUS (President of the
United States).
Then came marching in the law professors,
some of the most distinguished scholars America
has produced. The prestigious New Yorker
magazine commented that in their testimony
before the House Judiciary Committee last
week, the four legal scholars showed varying
degrees of willingness to take risks—something
that had been missing from these fairly-con-
trolled hearings.
The most succinct reporting on this appeared
in The New Yorker: Norman Eisen, a counsel for
the majority, drew the attention of the witnesses,
all law school professors, to an excerpt from the
key findings of fact from the Trump-Ukraine
impeachment inquiry report that had been sent
over by the House Intelligence Committee. It
read: “Donald J. Trump...solicited the interfer-
ence of a foreign government, Ukraine, in the
2020 U.S. presidential elections.” Eisen asked:
“Professor Feldman, did President Trump commit
the impeachable high crime and misdemeanour
of abuse of power based on that evidence and
those findings?”
“Based on that evidence and those findings,
the President did commit an impeachable abuse
of office,” Noah Feldman, who teaches at
Harvard, replied.
“Professor Karlan, same question,” Eisen said,
addressing Pamela Karlan of Stanford.
“Same answer,” Karlan said.
“And Professor Gerhardt,” Eisen asked, turn-
ing to Michael Gerhardt of the University of
North Carolina, “did President Trump commit
the impeachable high crime and misdemeanour
of abuse of power?”
“We three are unanimous, yes,” Gerhardt said.
Could such a phenomenon happen in India? I
noted in this space last week that the men and
women who stepped forward in the Congres-
sional Committees—as others, too, have done in
the past—continue to demonstrate that the
American Constitution and the institutional lib-
erties it enshrines probably has as many torch-
bearers as it has pall-bearers. Its Hall of Fame is
perhaps larger in mind, spirit and courage than
its Gallery of Rogues.
The Indian Constitution and the liberties and
freedom of speech enshrined with the Fundamen-
tal Rights it bestows on Indian citizens were in-
spired to a great extent by the ideas of Thomas
Jefferson and John Adams and Benjamin Frank-
lin. But its separation of powers is flawed because
the legislature is really a slavish extension of the
executive, and true, bipartisan oversight and acc-
ountability—as the Indian founding fathers may
have envisioned it while drafting the Constitu-
tion—are, with exceptions, a pipe dream. In
India, political vendettas, undertaken with the
RETIRED, MAYBE,
BUT NOT HURT
Inderjit Badhwar
T
Letter from the Editor
Indiatoohasher
shareof
conscientious
objectorslikeinthe
US.Theyexpress
themselvesmostly
throughop-ed
piecesinjournalsor
inscholarly
seminars.However,
retiredcivilservants
haveused“open
letters”and
petitionstoexpress
dissentanddemand
accountability.
| INDIA LEGAL | December 16, 2019 3

connivance of law enforce-
ment agencies, are passed
off as “oversight”.
It would be rare indeed,
well nigh impossible, that a
serving Indian ambassador
would appear before a par-
liamentary committee in
secret or, God forbid, at a
public hearing to answer
questions about the dubi-
ous foreign policy dealings
of a serving prime minister
or, for that matter, any
minister. The public
appearance of a university
law professor would be
unprecedented.
But it is not as if India
does not have her share of
conscientious objectors in
both the academic and official communities. They
express themselves mostly through op-ed pieces in
journals or in scholarly seminars. Increasingly, how-
ever, retired civil servants from the Indian Admin-
istrative Service (IAS) and the Indian Foreign Ser-
vice (IFS) and related public service undertakings,
defence services, the cream of the crop who ran
states and embassies and government corporations
and police departments as chief secretaries, ambas-
sadors, cabinet officials and managing directors
have begun to use “open letters” and petitions to
express dissent and demand accountability.
These missives, jointly signed, have begun to
receive wide attention in the social media as well as
at private conclaves and clubs frequented by serving
bureaucrats. The signatories are usually not fly-by-
night babus but those who have served under gov-
ernments of all political hues and dispositions at the
state and central levels.
T
he most recent petition which goes to the
very heart of India’s democratic vitality has
been addressed to members of the Election
Commission of India which is the conductor and
watchdog over the electoral process that steers this
democracy. It has been signed by 64 former civil
servants and endorsed by 83 veterans of the defence
services, academics, and other concerned citizens.
The subject: “Your Silence on Issues Raised with
Regards to Serious Irregularities in the Conduct of
Lok Sabha General Elections, 2019.” It says: “Please
refer to the letter dated 2nd July 2019 on the above
subject addressed to you. Subsequent reminders
have been sent. Your failure to respond to any of the
points raised in the letter and reminders, or to even
acknowledge their receipt, leads us to wonder
whether we will ever receive a response.”
I reproduce, in summary, the salient points from
this document:
The issues raised are critical for the well-being
and proper functioning of our democratic republic.
Our group has been in touch with your predecessor,
Shri OP Rawat, on a number of issues related to the
conduct of elections. As a group of former civil ser-
vants, many of whom have been associated with
election processes over the past six decades, we con-
sider it our duty to work with the Election Commi-
ssion of India (ECI) to address the doubts that have
arisen in the public mind about the impartiality and
fairness of our electoral processes.
Many of these questions would have been avoided
if the ECI, currently under your stewardship, had
accepted the principle of agent transparency vis-à-
vis its principal, which, in this case, is the people of
India. So, disclosure should be the rule rather than
the exception. All information relating to the con-
duct of elections should be open to the public ex-
cept where specifically needing to be exempted. Ev-
en when disclosure of some information is exempt-
ed, the criteria for keeping it confidential must be
made public and transparent.
We do not believe that there is any justification
for the ECI not displaying on its website:
(i) the Parliament Constituency-wise, assembly seg-
ment-wise, and polling station-wise figures of (a)
votes polled in EVMs [i.e. other than postal ballots]
and (b) votes as counted in EVMs. Ideally, there
should be no discrepancies between the two sets
of figures.
(ii) details of the 5 polling stations chosen as “sam-
ples” for each assembly segment, and the polling
station-wise figures of (a) EVM electronic count
and (b) VVPAT manual count. Ideally, there should
be no discrepancies between these two sets of fig-
ures also. But there have been extensive media
reports about large-scale discrepancies in respect of
both (i) and (ii) above. While we are aware that
media reports may not always be correct, the ECI
has failed the test of transparency by not disclosing
the above sets of its figures on its website, thereby
paving the way for an adverse presumption being
drawn in this matter.
In the interests of transparency and electoral
integrity, we call upon the ECI to immediately dis-
play on its website, the figures indicated in (i) and
Letter from the Editor
4 December 16, 2019
FEARLESS AND
TRUTHFUL
Noah R Feldman
was one of the
law professors in
the US who
testified
during hearings
related to
Donald Trump’s
impeachment
inquiry

(ii) above; disclose the “decision rules”, if any,
of the ECI about manual counting in the event of
discrepancies of either type occurring; disclose if
there were any occasions to apply these decision
rules during the recently concluded parliamentary
elections.
Even while our letter of 2nd July, 2019 was wait-
ing for some kind of a response from you, various
media reports have appeared, suggesting that (a)
unauthorised private engineers had access to the
EVM and VVPAT machines in the general elections,
2019; (b) Bharat Electronics Limited (BEL) and
Electronics Corporation of India Ltd. (ECIL) have
refused to provide information in response to RTI
queries on EVMs and VVPATs even after having
collected the fees for the same, though we under-
stand that now the RTI first appellate authority has
directed the ECIL to provide the information while
the BEL first appellate authority for RTI has direct-
ed them to transfer the queries relating to the num-
ber of EVMs and VVPATs deployed for the 2019
Lok Sabha elections to the ECI. Clearly, the issues
relating to the EVM and VVPAT machines are yet
to be resolved satisfactorily, and the ECI, under
your stewardships, needs to put this controversy to
rest. Recent reports also seem to suggest that a pro-
gramme installed in the VVPAT can access VVPAT
memories and alter the input to the Control Unit,
thereby manipulating the people’s mandate.
To set at rest doubts in the public mind, we sug-
gest a social audit of the functioning of the EVM
and VVPAT machines used in the recent Lok Sabha
general elections. Social audits are an accepted tool
in all democracies and, even in our country, we have
used them to monitor the functioning of various
social sector programmes. We are ready to work
with you in the organization and conduct of such a
social audit.
To conduct such a social audit, we propose as fol-
lows: (a) Access to the entire electoral records,
including EVM and VVPAT machines used in 20
select Lok Sabha constituencies (representing mere-
ly 3.6 percent of the total Lok Sabha constituen-
cies), in the recently concluded general elections,
2019, be provided to a Social Audit Group, compris-
ing three representatives each of civil society repre-
sentatives (which will include members of our
group of former civil servants) and the ECI. (b) The
20 Lok Sabha constituencies will be selected by the
Social Audit Group and the same will be intimated
to the ECI for making the records/machines avail-
able. (c) The ECI will release these records, EVM
and VVPAT machines under whatever supervisory
arrangement it considers necessary to ensure that
while the auditors have full access, these records are
not tampered with in any way during the audit. The
only rider would be that these arrangements would
not in any way fetter the ability of the Social Audit
Group to examine the records and machines in any
way it considers necessary.
To test the integrity and security system of the
EVM and VVPAT machines, the Social Audit Group
will, in consultation with the ECI, have the freedom
to appoint an independent third-party team of IT
experts from India or from abroad, if necessary,
who have the experience of conducting hackathons.
There would be no restrictions on the hackers—they
would be free to check the hardware, the software,
and also the programmes embedded in the chips of
all these machines to determine whether the EVM/
VVPAT machines are capable of being manipulated
either before, during or after each step of the elec-
toral process.
All the EVM and VVPAT machines used for the
hackathon would be disabled for future use under
the joint supervision of the Social Audit Group and
the ECI, to ensure that none of these is ever used
again in any future election.
Under the British Parliamentary Committees
system or the American process referred to at the
beginning, the retired dignitaries would surely have
been invited to give public testimony to the legisla-
ture. In the Indian context, we can only thank the
Lord for small mercies—the dignitaries may be
retired but are by no means hurt.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
DEMANDING
ACTION
A recent
reminder petition
addressed to the
EC and signed
by former civil
servants and
endorsed by
veterans of
the defence
services, aca-
demics, and
other citizens
wanted a social
auditing of EVMs
and VVPAT
machines
UNI

ContentsVOLUME XIII ISSUE5
DECEMBER16,2019
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Senior Content Writer Punit Mishra
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6 December 16, 2019
A recent office order by the Delhi High Court in the matter of bail for rape accused is a
significant step in the justice delivery system
Victim Friendly
The Supreme Court rejected the centre’s stand that people with criminal records as juveniles
cannot be given government jobs, thereby giving them another chance in life
Starting Life Afresh
SUPREMECOURT
The gang rape of a Hyderabad doctor has once again demonstrated that between
patriarchal law and urban anomie, such events will recur to compound the hollowness of
governance and rights in India
No Woman’s Land 12
16
18
LEAD
While the apex court gave Malayalam star Dileep,
an accused in the assault of an actress, some
reprieve, the issue is now more to do with his future
in the industry
Star-crossed 20

While some have hailed the move of the Pakistan chief justice to
reduce the tenure extension of General Qamar Javed Bajwa, others
say he has merely thrown the ball in parliament’s court
Taking on the Army 34 Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: ANTHONY LAWRENCE
Cover Photo: UNI
REGULARS
Ringside............................8
Courts ...............................9
International Briefs..........32
Media Watch ..................37
Satire ..............................50
In a Holy State
Self-styled godman Nithyananda, facing rape
and child abuse charges, who fled India last
year, has bought a private island in South
America and called it a “new nation”, Kailaasa
47
22
Despite the demand for Supreme Court branches in other parts of
India, there has been no forward movement. The idea was mooted
earlier by the Law Commission and Vice-President M Venkaiah Naidu
Is this a Chimera?
LEGALEYE
GLOBALTRENDS
BOOKEXTRACT
The book, India’s Governance: An incisive commentary on some
burning issues, written by eminent civil servant Madhav Godbole,
is a collection of essays on contemporary issues in India
SC Verdict: Back to Square
One, If Not Minus One 25
FOCUS
The Surrogacy (Regulation) Bill,
2019 seeks to ban all forms of
commercial surrogacy
Strict On
Surrogacy 28
COLUMN
The ICMR will soon have guidelines for doctors on whether to perform cardio-pulmonary
resuscitation on patients with low survival chances. But are they really needed?
Easing Death 38
The BJP government in Uttarakhand has
stirred a hornets’ nest with its latest edict
bringing all the temples in the state
under its control, including the holiest of
the holies—the Char Dham
Temples of Discord
STATES
Controversial businessman and media owner Jeetu Soni, who created a storm with his
honey-trap exposés of conversations between call girls and VIPs in Madhya Pradesh,
faces a backlash from the Congress government
Sex, Lies and Videotapes 44
42

8 December 16, 2019
Anthony Lawrence
RINGSIDE
Centre downgrades security
for Gandhi family

The Supreme Court granted bail to former
finance minister P Chidambaram, exact-
ly 106 days after the CBI arrested him on
August 21 in connection with the INX Media
case. The apex court’s order in the En-
forcement Directorate’s (ED) case followed
a similar order in the CBI case and allowed
him to walk a free man.
A three-judge bench comprising Jus-
tices R Banumathi, AS Bopanna and Hri-
shikesh Roy pronounced the verdict which
also restrained him from giving interviews
or making statements with regard to the
case or travelling abroad without the
Court’s permission. Chidambaram has also
been asked to furnish a bail bond of `2
lakh plus two sureties of the same amount.
The top court, which observed that the
economic offences were grave in nature,
said, “grant of bail is rule and refusal is
exception”. The Delhi High Court had, on
November 15, dismissed Chidambaram’s
bail plea. He had sought bail in the case
pertaining to the Foreign Investment Pro-
motion Board (FIPB) clearance given to INX
Media to the tune of `305 crore in 2007
during his tenure as the finance minister.
The CBI had registered a corruption case in
this regard in May 2017. Later that year, the
ED also lodged a money laundering case.
Courts
—Compiled by India Legal team
SC upholds Art
30, dismisses
plea against HC
The SC dismissed a Special Le-
ave Petition challenging a Kerala
High Court order which held that
for an educational institution to
claim minority status, it must be
“established and administered” by
the minority community, and not
“merely administered” by it. The
judgment came on a petition ag-
ainst a verdict of the High Court on
August 5 which had quashed Na-
tional Commission for Minority
Educational Institutions’ order gran-
ting minority educational institution
status to a primary school.
This decision was challenged
by the teachers of the school who
said the management and proper-
ties of the school had been trans-
ferred by a Hindu to a Muslim, PK
Mohammed Hajee. They claimed
that Hajee had invoked the minority
status to promote his son as head-
master, in violation of seniority.
They claimed that any institution
claiming minority status must be
“established and administered” by
a minority. A single bench of the
High Court overruled their claim,
saying the word “established” co-
uld have flexible connotations and
affirmed that the school was a mi-
nority institution. But a division
bench overruled the verdict and
said that Article 30(1) and Section
2(g) mandate that a minority edu-
cational institution should be one
established by a minority. This was
challenged in the SC which upheld
the division bench's order.
The apex court will take a call in two
weeks’ time on the centre’s demand for
a review of its 2018 judgment that excluded
the creamy layer within the SC/ST commu-
nities from quota benefits. Attorney General
KK Venugopal requested the Court to refer
the matter to a seven-judge bench for a
fresh look.
A five-judge Constitution bench in 2018
had held that the well-off members of the
SC and ST communities—the “creamy la-
yer” as they are referred to—could not be
granted the benefits of reservation in college
admissions and government jobs. The
Court has since 2006 reaffirmed its deci-
sion several times in various cases, and as
recently as last year it turned down the req-
uest for a larger bench to revisit the verdict
which had effectively implied that SC and
ST employees could get guaranteed promo-
tions only if the government produced hard
data to demonstrate “compelling reasons”.
SC to decide on creamy layer review
SC grants bail, Chidambaram out of jail

Spotlight/ Legal Services
10 December 16, 2019
ustice NV Ramana, the second
seniormost judge of the Sup-
reme Court, has got another
feather in his cap. He was nomi-
nated by President Ram Nath
Kovind as the Executive Chair-
man of National Legal Services
Authority (NALSA) with effect from
November 27, 2019, after which the
Ministry of Law and Justice issued a
Gazette notification.
Before being nominated to NALSA,
Justice Ramana was chairperson of the
Supreme Court Legal Service Commi-
ttee (SCLSC). During his tenure, nearly
1,545 cases were filed by the SCLSC and
pendency was reduced from 3,800 cases
in January 2018 to 1,811 in August 2019.
NALSA, incidentally, was constituted
in 1987 with a vision to promote an in-
clusive legal system in order to ensure
fair and meaningful justice to the mar-
ginalised and disadvantaged sections
of society.
After taking over as Executive Chair-
person of NALSA on December 6, Jus-
tice Ramana visited its office at Jam Na-
gar House in Delhi where he interacted
with Sunil Chauhan, Director, NALSA
and other officers. He laid emphasis on
increasing access and efficiency for the
promotion of legal services. Justice Ra-
mana also issued a vision statement,
thereby laying the roadmap for future
activities of NALSA.
In 2020, the focus will primarily be
on enhancing the quality of legal servic-
es in both court-based and outreach ac-
tivities. This will include the implemen-
tation of the Legal Aid Defense Counsel
System. In addition, there will be stren-
gthening of basic units such as legal
services clinics, updating and digitising
the front offices of legal services institu-
tions to work as one-stop centres for le-
gal aid seekers, implementation of pro-
tocol for providing legal assistance right
from the stage a person is called to the
police station, strengthening Jail Legal
Services Clinics and Monitoring and
Mentoring Committees at the district
level, carrying out effective outreach in
aspirational districts, emphasis on
planned outreach programmes on the
basis of assessment of needs, prepara-
tion of booklets in regional languages in
a simple language regarding laws affect-
ing the marginalised categories, etc.
Through these activities it is expect-
ed that there will be enhanced and im-
proved public trust, minimisation of
unnecessary arrests, effective represen-
tation of prisoners at the remand stage
and better visibility and dissemination
of legal awareness through increased
outreach programmes. The coming year
will see accelerated action on meeting
the legal needs of the marginalised sec-
tions of society.
NALSA Vision 2020 is “Absolute
Justice for All”. Some of its salient fea-
tures are:
Justice Ramana Takes Charge
as Executive Chairman, NALSA
Thesecondseniormostjudge
oftheapexcourtissuesa
visionstatementfor2020
withthefocusonenhancing
thequalityoflegalservices
By India Legal Bureau
J
WELL-DESERVED ROLE
Justice NV Ramana takes over as Executive
Chairman of NALSA at Jam Nagar House in
Delhi on December 6

The passion for this mission will
help it overcome obstacles in achieving
the rights guaranteed under the
Constitution.
In 2019, NALSA appointed nearly
62,000 panel lawyers and around
63,000 paralegal volunteers throughout
the country. In 2018-2019 alone, around
four lakh people were benefited through
legal aid and advice. The need of the
hour is to establish a target-oriented
mechanism wherein resources can be
invested after identifying specific prob-
lem areas. These are:
Legal Aid Defence Counsel System:
This novel idea was adopted at an all-
India meet at Nagpur, where it was pro-
posed that lawyers will be exclusively
engaged for conducting legal-aid cases
in sessions courts. The new system is
aimed at increasing this by assigning the
cases from the beginning to advocates
whose sole attention will be on legal-aid
cases and whose performance will be
more effectively reviewed. It will be
implemented in 16 districts in the coun-
try on a pilot basis for two years.
Legal assistance at the pre-arrest,
arrest and remand stage: The project
is intended at reducing the number of
undertrials and is in consonance with
international best practices for provid-
ing legal assistance at the initial stages
of criminal justice. NALSA will collabo-
rate with police departments in every
state and provide special training to the
panel of lawyers in this regard. It aims
at avoiding unnecessary arrests.
Jail Legal Services Clinic: According to
Prison Statistics India 2016, 11,834
undertrials (four percent of the total
2,93,058 undertrial prisoners) have
been confined inside prisons for three to
five years, while 3,927 undertrials have
spent more than five years in prison.
DLSAs, along with prison authorities,
should grant access to law students to
assess the conditions of these prisoners
in order to collate data and forward the
same to the SLSA so that it can prepare
a comprehensive report. Thereafter, a
panel of lawyers can be appointed to
provide legal advice, draft applications,
letters and petitions for inmates inside
the jail. It is pertinent to set up a review
committee/monitoring committee head-
ed by a district and sessions judge along
with the district magistrate, superinten-
dent of police and secretary, DLSA as
members to monitor the progress.
Online portal for centralising infor-
mation about prisoners: This project is
intended at creating a unified platform
to integrate data about legal services
provided to prisoners at all levels.
Cyber cell: With the rise in cyber off-
ences, it is pertinent to establish a spe-
cialised wing in this regard.
Victim Assistance Mechanism: This
aims to protect the victim in cases
where there is negligent, non-responsive
and partisan attitude on the part of
police officers.
It is also imperative to constantly re-
view the quality of lawyers and the para
legal volunteers appointed by the Auth-
ority. It is also important to focus on
domestic violence, protection of senior
citizens, etc. The main goal is to advance
the cause of human rights. To further
this vision, 115 aspirational districts
have been identified by Niti Aayog.
Coming to Justice Ramana, he was
born in an agrarian family on August 27,
1957 in Ponnavaram village of Andhra
Pradesh. He graduated in science and
law and was the first lawyer in his fami-
ly. He enrolled as an advocate at the Bar
on February 10, 1983 and practised in
the High Court of Andhra Pradesh;
Central Administrative Tribunal, An-
dhra Pradesh; Administrative Tribunal
and the Supreme Court. He has dealt
with matters pertaining to the Consti-
tution, labour, service, inter-state river
disputes and elections. He was Acting
Chief Justice of the Andhra Pradesh
High Court from March 10, 2013 to May
20, 2013 and elevated as chief justice of
the Delhi High Court on September 2,
2013. On February 17, 2014, he was
made a judge of the Supreme Court.
Justice Ramana initiated various
measures for the promotion of the legal
system when he was president of the
Andhra Pradesh Judicial Academy and
introduced regional judicial conferences.
During his tenure as president, he orga-
nised a joint conference for judicial offi-
cers, police officers, correctional services
authorities, juvenile justice boards, ad-
vocates, prosecutors, women’s bodies,
social groups and media representatives
on the growing menace of sexual ass-
aults on women. His recommendations
led to the amendment of the CrPC to a
certain extent. As a High Court judge,
his directions to the State to fill the
vacancies of public prosecutors led to
the speeding up of criminal trials.
NALSA’S INITIATIVE
Union minister Ravi Shankar Prasad
addressing the 17th All India Meet of
State Legal Services Authorities in Nagpur

Lead/ Column/ Sexual Assault Against Women Shiv Visvanathan
ARX’S famous quote
that history repeats
itself twice, the first
time as a tragedy and
the second time as a
farce does not quite
work in India. When violence breaks
out, the event is a disaster and the re-
sponse is often a scandal. The victim is
missing in the process and so is
history, as the event is forgotten in a
few weeks till it is repeated again
elsewhere to highlight the indifference
of authorities.
The rape of a veterinarian in Hyd-
erabad illustrates this. The stark
poignancy of the event is lost, caught in
the Kafkaesque travails of law and order
bureaucracy. The facts are stark and
simple. A 26-year-old vet leaves her
house at 5:30 pm. She calls her sister
from the Bengaluru-Hyderabad high-
way, afraid of a bunch of men poised
threateningly around her. She asks her
sister to keep talking and calling. Her
scooter has a puncture and the milieu
around her looks menacing. The sister
rings again at 9.45 pm and finds the
phone switched off. It was the last time
the family heard of her. The sister
wished to file a complaint, only to have
the police state blandly that the toll gate
where her sister was last sighted was not
under their jurisdiction. In an Orwellian
sense, some policemen are more indif-
ferent than others. Law and order is
often a mask for civic indifference.
The scene shifts to the perpetrators.
A sense of urban alienation stretches out
No Woman’s Land
M
UNI
WHITHER
JUSTICE?
People at a
candlelight protest
in Hyderabad
ThegangrapeofaHyderabaddoctorhasonceagaindemonstratedthatbetweenpatriarchallawandurban
anomie,sucheventswillhappenagaintocompoundthehollownessofgovernanceandrightsinIndia

penalty. Jaya Bachchan, usually dormant
in Parliament as a Samajwadi member,
played out a belated role, demanding
drastic punishment. One can under-
stand crowd rage but for responsible
MPs to follow suit makes one wonder if
law and order itself is a farce.
F
or once, the media, instead of
offering the story in bits and
pieces, provided coherent narra-
tive, mediating on the loneliness of the
urban milieu and the sheer anomie of
late-night urban spaces. They are open
to acts of horror, proving easy avenues
of escape. It raised the issue of right to
public spaces, especially for vulnerable
women and children. This emptiness of
urban life beyond the metropolis marks
highways as law and order problems. Yet
little is done, and what is done is ritual-
istic. One returns to the everyday sense
of dread, anxiety and horror as one trav-
erses these spaces, which a wag once
called “a no woman’s land” between
metropoles.
But beyond the sociology of the ano-
mic city is the ritualistic psychology of
policeman and politician. A few police-
men were suspended following the fami-
ly’s complaint. The cops had instant an-
swers, blaming the delay on jurisdiction-
al reasons. But there are two problems
which need to be discussed. One is the
question of punishment for rape and the
other is the question of urban memory.
Legislators fuelled by citizens’ anger
demanded the death penalty, castration
or other forms of instant action. But
does such hysterical or popular demand
answer the search for justice? Pratiksha
Baxi (a sociologist of law) in a search-
ingly relevant paper argues against it.
She suggests that an examination of
parliamentary debates after such hor-
rendous events reveals that the law is
really not concerned about the bodily
safety of women. The construction of
rape as a horrendous crime has little to
do with the safety of women but stems
from a patriarchal hangover, where in
honour-and-shame-societies women
become carriers of honour. Rape then
becomes a stigma that men have to con-
front. The emphasis on legislation leads
more to panopticonising the woman’s
body than confronting issues of safety
and care. The woman becomes doubly
victim. Once she is raped, she becomes
unacceptable to society. Rape still exists
within the discourse of power as some-
thing conducted by men in authority
like contractors, employers, money
lenders. Women become doubly dispen-
sable under such a law. The logic of ret-
ribution, as Baxi argues, is still within
the structures of patriarchal law rather
than within the embeddedness of rights.
The State becomes a guarantor of the
honour of women rather than of their
safety or right of access to public spaces.
The demand for speed is another
reaction. One sees it in the piety of
Delhi Chief Minister Arvind Kejriwal’s
statements that the judicial system
Thereislittleconcernforthepoignancyof
lossthatthefamilyfeels.Thevictim
disappearsasapersoninthenoisethat
followsandjusticefadesawayin
thejingoismofimmediateprotest.
as truck drivers hanging around the sce-
ne find there is more than time to kill.
The vet was an easy target for the accu-
sed men after the first drink. They were
drivers and cleaners of lorries plying be-
tween Hyderabad and Bengaluru carry-
ing construction material. As the wom-
an discovers her flat tyre, the men dis-
cover her. The violence that follows is
almost ritualistic. The script is predict-
able. They offer to drop her near a bike
repair shop and play the Good Samari-
tan. They escort her to an abandoned
room. The woman panics, calls her sis-
ter. The men discover the phone and sw-
itch it off. They then take turns raping
her, smother her, and burn the body at a
remote section of the highway. The body
lies ignored for two nights till it is sight-
ed by a milkman who alerts the police.
Based on CCTV and interviews, the poli-
ce reconstruct the crime and arrested
the men.
As news of the event flooded TV, or-
dinary people felt rage and intense help-
lessness at the event. Demonstrations
flared up across cities, and politicians,
quick to milk the situation, enacted
demands for castration and the death
UNI
DEALING WITH LOSS Telangana Governor Tamilisai Soundararajan visits the bereaved family

should work in mission mode and
ensure rape cases are resolved within six
months. Listening to Kejriwal, one sens-
es that he is suffering from the Chand-
rayaan effect, unable to differentiate
between law and a rocket launch.
Kejriwal acts as if the death penalty is
inevitable for rape, oblivious of the
debate around it. The reaction seems
knee-jerk and populist. One needs deep-
er sociological meditation here.
B
eyond the rhetoric of capital
punishment, there is also the
question of memory and indiffer-
ence. Similar scenes of horror and
protest have been enacted earlier. Once
the season of protest is over, society
lapses into indifference. Silence punctu-
ates the long periods between protests,
turning them into a ritualised empti-
ness. There is an indifference of gover-
nance to the problems of the city.
Amit Shah as home minister is talk-
ing rhetorically of the detoxification of
the economy. He could begin by addr-
essing how he plans to detoxify our
cities of patriarchy and urban alienation.
There is little concern for the poignancy
of loss that the family feels. Governm-
ents rarely care between rhetorical
statements and indifferent doles. What
we then confront is a silence, an empti-
ness and a black hole of pain which the
media amplifies in its erratic reporting.
There is outrage but little sense of loss
or mourning.
Protest, I must emphasise, is a leg-
islative function, loss is a personal
enactment. The person as a mourner
disappears in the sociological enactment
of roles in the media. Otherwise, one
would have asked the stark question of
why money left in the aftermath of the
Nirbhaya case lies unused. One has to
ask why mercy petitions for rapists get
such elaborate hearings.
There is a deeper issue here that
India needs to understand—how it con-
sumes and responds in the aftermath of
an event like this. Our legislators shout
for abstract revenge. They act as if legis-
lation will settle the problem of social
evil. They think a fast-track court will
create an assembly line of justice. But
PUCL, NHRC or some social science
group has to assemble how society, both
citizens and functionaries, respond in
the aftermath of violence.
The emptiness and silence are
Kafkaesque. The victim disappears as a
person in the noise that follows and jus-
tice fades away in the jingoism of imme-
diate protest. Instead of hanging the
rapist, it is the citizen who should hang
his head in shame, knowing unerringly
that between patriarchal law and urban
anomie, such events will happen again
to compound the hollowness of gover-
nance and rights in India.
As a wise observer told me: “It is not
legislation we need to tinker with like
a piece of plumbing, it is the anomie
of law and society that we need to medi-
ate on.” Such narratives become mere
spectacles with little sense of civics
or pedagogy.
Maybe one needs a memorial for the
victim where one can mourn the idiocy
of law and the indifference of society.
—The writer is a member of the
Compost Heap, a commons of ideas
exploring alternative imaginations
SHOT DEAD
The four accused, allegedly involved in the
Hyderabad rape case, were killed by the Cyb-
erabad police in an encounter at Chatanpally
Politiciansenacteddemandsforcastration
andthedeathpenalty.JayaBachchan,
usuallydormantinParliamentasa
Samajwadimember,playedoutabelated
role,demandingdrasticpunishment.
Lead/ Column/ Sexual Assault Against Women/ Shiv Visvanathan

It is bizarre that the
courts still continue to look
out for “character” and
“background” of the victim
rather than the crime com-
mitted against her. In a
case against a serving policeman of
Mumbai, who was accused of raping a
sex worker, the High Court reinstated
him on the grounds of the profession of
the victim. It was later cancelled by the
apex court, but it’s reflective of our
misogynistic attitude towards victims.
Nowhere does the IPC or CrPC or the
Evidence Act say anything about dilut-
ing the crime if the “character” of the
victim is not spotless, or even taking it
into consideration while deciding a case
or bail.
In another astonishing case, bail was
granted to an accused by the trial court
on the defence team’s assertion that the
victim had “enjoyed the incident”. How
was this conclusion arrived at? By the
victim’s admission that her hands were
on the rapist’s back, indicating her
acquiescence and consent! This is indi-
cative of the kind of probing the defence
undertakes to harass the victim in court.
An average of about 30,000 rapes
are reported in the country each year
and only about 7,000-odd get convicted
after several years of trial. Only some
cases like Nirbhaya or the present Hyde-
HE shocking rape-cum-
murder of a vet in Hyder-
abad and the gang rape of
a law student in Ranchi on
successive days have again
put the spotlight on
India’s poor record in protecting
women and punishing the guilty.
The conviction rate for rape cases
in India was 44.3 percent in 1973, and
has since then been on the decline,
falling to 24.2 percent in 2012, before
showing a marginal rise in the last
five years.
This has happened despite changes
in the legal system, despte passing of
stricter sexual assault laws, and the cre-
ation of fast-track courts for prosecution
of rapes. Most often, evidence is so inad-
equate, the defence so shameless in
probing and the trial so painfully long
that the victims and their families
get drained.
Bail to the accused in rape cases is an
issue with victims and their families, as
it leads to further shaming of the victim
in society. Which, perhaps, is the aim of
the defence. One of these was finally
busted by Chief Justice of India SA
Bobde last week, when he cancelled the
bail of an accused, which had been
granted by the Bombay High Court on
the grounds that the victim was “habitu-
ated to having sex”.
rabad case get fast-tracked because of
the media attention.
In September this year, Chief Justice
DN Patel of the Delhi High Court did
yeoman service to the cause of rape vic-
tims by taking out an order for all trial
court and HC judges in Delhi to ensure
that the victim’s view is recorded each
time a rape accused moves for bail.
Furthermore, he has instructed that it is
the duty of the investigating officer to
inform the victim of the bail intentions
of the accused. He has also ordered that
a form be signed by both the parties and
attached to the case file every time a bail
application is moved. This method will
help in ensuring that the victim has
identified her tormentor and is consis-
tent in her stand through the trial.
Justice Patel’s order does more for
the victims than all the false drum beat-
ing in Parliament. Jaya Bachchan has
advocated lynching and almost everyone
wants the death sentence for the
Lead/ Sexual Assault Against Women
ArecentofficeorderbytheDelhiHighCourtin
thematterofbailforrapeaccusedisa
significantstepinthejusticedeliverysystem
By Neeraj Mishra
Victim
Friendly
T AWAITING JUSTICE
A protest related to the Nirbhaya rape
case in 2012, in New Delhi

“consensual sex on promise of marriage”
cannot be considered a crime under
Section 375. This flies in the face of
“consent obtained through fraud” as
understood in the section.
In April 2013, Judge Virender Bhat
had suggested that the legal proposition
of relying upon the sole attestation of
the victim became an easy weapon to
incriminate anyone in a rape case.
Justice Kailash Gambhir of the Delhi
High Court indicated that penal provi-
sions for rape are often being misused
by women, as a “weapon for vengeance
and vendetta” to harass and blackmail
their male friends, by filing false cases
to extort money and to force them to get
married.
Delhi Commission for Women
(DCW) chairperson Swati Maliwal has
been on a hunger strike in New Delhi,
demanding justice in the Hyderabad
rape case. A fact-finding report on
pending rape cases by the DCW has
found out that of the cases which go to
full trial, only two percent are commit-
ted by strangers. A fourth of the cases in
Delhi are now filed under “breach of
promise to marry”. This may be the res-
ult of increased urbanisation and exi-
gencies of modern fast track life, where
live-in relationships have become com-
mon. These stats may not be reflective
of the rest of the country.
These issues have been left festering
for too long. Parliament has been seized
of the matter for long but no significant
improvement has been made in key
areas of investigation, bail applications
and conviction.
“Now, there is considerable public
and parliamentary attention to the vio-
lent frequency of the rape cases. It is
time that the court reminds the nation
that deterrence becomes more effective
from quick investigation, prompt prose-
cution and urgent finality, including
special rules of evidence and specialised
agencies for trial,” Justice VR Krishna
Iyer, one of India’s leading luminaries,
said in 1980. If the time is not ripe now,
it never will be.
accused. They forget that 75 victims out
of every 100 will never get justice, and
the other 25 will be left with the feeling
that they have been raped several times
during the trial. Nirbhaya’s mother has
voiced her opinion on the trial that has
already taken seven years, and even a
change in government has done little.
T
he continued incarceration of
perpetrators perhaps does more
to deter rapists than any threat of
enhanced punishment. Media trial is
decried in almost all matters, but never
in rape cases, so even that is not a deter-
rent for the accused. The misogynistic
attitude of some lawyers and part of
the judiciary has been an impediment
in understanding and development of
rape laws.
There has been a side show in some
circles around “false allegations and
revenge cases” by women, mostly cases
arising out of live-in relationships going
wrong and promises of marriage not
being kept.
In a rather debatable judgment, the
High Court recently pronounced that
“Itislikeanointmenttomywounds.
Atleastonedaughterhasbeen
servedjustice.Ithankthepolice.
Iamstilltakingroundsofthecourt.”
—AshaDevi,motherof Nirbhaya,onthe
encounterkillingoftheHyderabad
rapeaccused,toIndiaToday

Supreme Court/ Justice for Juveniles
N a landmark judgment, the Sup-
reme Court has said that crime
committed by a juvenile can’t be a
ground to deny him a government
job. This will allow such a person
to get a government job and start
life afresh.
The case related to the government
refusing to give an appointment letter to
a man for the post of sub-inspector in
the Central Industrial Security Force
(CISF) as a criminal case was lodged
against him for teasing a girl when he
was a teenager. A bench of Justices UU
Lalit and Vineet Saran said the criminal
record of a child must be treated as er-
ased except in special circumstances so
that he can start life afresh. The bench
passed the order while rejecting the cen-
tre’s stand that such persons cannot be
given government jobs because of their
criminal past. The Court said: “Even if
the allegations were found to be true,
then too the respondent could not have
been deprived of getting a job on the
basis of such charges as the same had
been committed while the respondent
was juvenile.”
The centre had appealed in the apex
court against an order passed by the di-
vision bench of the High Court of Raj-
asthan at Jodhpur regarding the app-
ointment of the man. The man was gi-
ven the appointment in 2016 and asked
to fill a form along with details regard-
ing any FIR lodged against him. While
he was an accused under Sections 354,
447 and 509 of the IPC when he was a
teen, he specifically mentioned that he
had been acquitted in the case. How-
ever, the Standing Screening Committee
of the CISF decided that he was not
suitable for the appointment on the
basis of these facts.
The man then filed a writ petition
Starting Life Afresh
TheCourtrejectedthecentre’sstandthatpeoplewithcriminalrecordsasjuvenilescannotbe
givengovernmentjobs,therebygivingthemanotherchanceinlife
By Gautam Mishra
I
ENSURING JUSTICE
A bench of Justices UU Lalit (left) and Vineet
Saran said that even if the allegations were
true, the man could not be deprived of a job
as the offence was committed as a juvenile
Anil Shakya

and the single-judge bench of the Raj-
asthan High Court directed the case “to
be decided afresh within 15 days in the
light of the guidelines issued by this Co-
urt in the case of Avtar Singh vs. Union
of India (2016)”. The CISF Committee
again rejected the claim, stating that
“the respondent was acquitted merely
due to lack of adequate evidence and
compromise, and that the offence in the
charge sheet falls in the category of seri-
ous offence, and thus the respondent
was not considered suitable for app-
ointment on the post of Sub Inspector
in CISF”.
A
ggrieved by this, the man filed
another writ petition which was
allowed. The Court then or-
dered: “..the impugned Order dated
16.1.2018...is recashed and set aside;
the respondents are directed to activate
offer of appointment of the petitioner
earlier made to the Petitioner for the
post of Sub Inspector in Central Indus-
trial Security Force. The order may be
operated upon within a period of thirty
days from today and all notional bene-
fits shall be prospectively given”. But the
CISF filed a Special Leave Petition
against this order in the apex court.
After hearing the matter, the
Supreme Court observed: “In the pres-
ent case, the complaint/FIR lodged
against the respondent was to the effect
that when he was a minor, he had teased
a girl a few times and went to the extent
of catching hold of her hand. However,
the girl and her parents finally decided
to pardon the respondent by not giving
any evidence against him, resulting in
the acquittal of the respondent. In the
aforesaid facts, even if the aforesaid is
found to be true, it cannot be said that
the respondent had committed such a
crime, which would be covered under
the definition of moral turpitude, espe-
cially when the respondent is said to
have committed the alleged offence
when he was a minor.”
The Court added that the charges
were never proved against the respon-
dent as the girl and her parents did not
depose against him, resulting in his
acquittal on November 24, 2011.
“Even if the allegations were found to
be true, then too the respondent could
not have been deprived of getting a job
on the basis of such charges as the same
had been committed while the respon-
dent was juvenile. The thrust of the leg-
islation, i.e. The Juvenile Justice (Care
and Protection of Children) Act, 2000,
as well as The Juvenile Justice (Care and
Protection of Children) Act, 2015, is that
even if a juvenile is convicted, the same
should be obliterated, so that there is no
stigma with regard to any crime com-
mitted by such person as a juvenile.”
The Court explained that this was
with the clear objective of reintegrating
the juvenile back in society as a normal
person without any stigma.
It further added that Section 3 of the
Juvenile Justice (Care and Protection of
Children) Act, 2015, lays down guide-
lines for the centre, state governments,
the Board and other agencies while
implementing the provisions of the said
Act. Clause (xiv) of Section 3 which
deals with the “Principle of fresh start”
says: “All past records of any child under
the Juvenile Justice system should be
erased except in special circumstances….
Section 3(xiv) provides for the same
and the exception of special circums-
tances does not apply to the facts of the
present case.”
The Court repeatedly said that the
man was acquitted of all criminal char-
ges and even if he had been convicted,
he could not be deprived of the job as he
was a minor when the charges were fra-
med against him. Therefore, he must be
given a fair chance to start life again.
The Court also appreciated that the
man did not try to suppress any infor-
mation and mentioned that in its order.
It said: “The respondent had very
fairly disclosed about the charges which
had been framed and his acquittal on
the basis of no evidence having been
adduced by the complainant against
the respondent.”
The Court upheld the judgment of
the High Court and dismissed the app-
eal of the CISF. It said: “The respondent
shall be entitled to all the benefits of the
judgment of the writ Court within 30
days from today.”
Justice delayed in this case, thankful-
ly, is not justice denied.
ThescreeningcommitteeoftheCISFdid
notfollowtheRajasthanHighCourtorder
askingittoactivatetheappointmentof
themanasSubInspectorandtheorder
waschallengedbythecentreintheSC.

Supreme Court/ Actor Dileep Assault Case
T’S a case that has rocked the
Malayalam film industry, reached
the Supreme Court, and threatens
to affect the career of one of its
major stars. The actor, Dileep, is
one of the accused in an assault
case involving an actress two years ago.
Dileep was arrested on July 10, 2017
and released on bail three months later.
The prosecution’s case against him was
that he held a grudge against the actress
as she had allegedly played a pivotal role
in spoiling his first marriage with popu-
lar actress Manju Warrier. To exact rev-
enge, the prosecution said, he had con-
spired with the other accused to abduct
and sexually assault her and record it,
and then release it in social media.
In the latest twist to the case, the
Supreme Court allowed Dileep to per-
sonally inspect the contents of a memo-
ry card containing visuals of the assault.
He could also, the apex court ruled, seek
a second opinion from an independent
agency such as the Central Forensic
Science Laboratory. The bench also
ruled that a memory card shall be con-
sidered a document under the CrPC.
The bench of Justices AM Khanwilkar
and Dinesh Maheshwari, however, did
not allow the actor’s request for a cloned
copy of the memory card.
However, the bench emphasised that
while the accused ordinarily had the
right to have a copy of such material, the
issue of privacy of the victim or witness
also had to be considered. The bench
examined the legal question of whether
the memory card was a part of the
police document which had to be pro-
vided to the accused under Section 207
of the CrPC.
The bench made it clear that the only
question that it had examined in this
appeal was whether the contents of the
memory card/pen drive referred to in
the charge sheet needed to be furnished
to the accused and whether it could be
misused by him or any other person. It
observed that in the present case, there
Star-crossed
WhiletheCourtgavetheMalayalamstar,accusedinan
assaultcaseinvolvinganactress,somereprieve,
theissueisnowmoretodowithhisfutureintheindustry
By NV Ravindranathan Nair
in Thiruvananthapuram
I
dailyo.in

were eight accused. Once relief is grant-
ed to Dileep, copies of the memory
card/pen drive would be freely available
to them under the ruling. Besides, it will
be nearly impossible to keep track of its
misuse and ensure its safe custody. It
also stressed that it was imperative to
balance the rights of both parties.
The accuser, a leading actress from
Kerala, had asked the Supreme Court
not to give assault visuals to Dileep or
any of the other accused, saying this
would ensure fair trial without her pri-
vacy being compromised. Incidentally,
Dileep’s petition requesting the assault
visuals was rejected in February 2018 by
the Angamaly magistrate court and the
Kerala High Court in August 2018.
Dileep then approached the Supreme
Court in May 2019, seeking to stay the
trial and asked for a cloned copy of the
footage, claiming that it would help
him to prove his innocence. Dileep also
argued that the assault visuals had
been morphed.
F
ollowing this, the Kerala govern-
ment requested more time to
present the case. It also said that
it cannot give the visuals to the accused
as he was capable of leaking them to
tarnish the image of the survivor.
The government also opposed his
petition for a cloned copy of the memo-
ry card, stating that Dileep was trying to
delay the trial and had no right to dem-
and a particular agency should conduct
the probe. The Supreme Court accepted
the state’s view and said the probe was
going in the right direction. It also
asked the trial court to complete the
trial expeditiously, preferably within
six months.
Dileep, who has emerged as a major
player in Mollywood, had to face anger
and severe criticism not only from the
general public but also from his fan
clubs following the incident.
After some of his films like Rama-
leela achieved box-office success, it
seemed that his fans had accepted his
plea of innocence.
However, he has had to quit the
Association of Malayalam Movie Actors,
an influential body, besides shelving
several films which featured him in the
lead role. Being a leading actor-produc-
er, he also invited the ire of a section of
film exhibitors. Dileep’s future in the
film world now depends on the outcome
of the case.
Theprosecution’scaseagainstDileep
wasthathehadnurturedillfeeling
towardstheactressasshehadallegedly
playedaroleinspoilinghismarriagewith
popularactress,ManjuWarrier.
CORNERING THE ACCUSED
Women artistes meet Kerala Chief Minister
Pinarayi Vijayan in connection with the sexual
assault complaint against actor Dileep;
(facing page) Dileep with cops in Kochi
@CMOKerala

Legal Eye/ Supreme Court’s Regional Benches
RE Supreme Court bran-
ches outside Delhi a mi-
rage? Recently, two Tamil
Nadu MPs in the Rajya
Sabha raised the issue of
setting up a branch of the
Supreme Court in south India, especial-
ly Chennai. Marumalarchi Dravida Mu-
nnetra Kazhagam (MDMK) member
Vaiko and Dravida Munnetra Kazhagam
(DMK) representative P Wilson raised
this issue recently during Zero Hour.
Vaiko, an ace parliamentarian with over
25 years of experience, argued that op-
ening a branch of the apex court in Che-
nnai would not only help the judiciary
in reducing the backlog of cases in the
Supreme Court—which is at 54,103 as of
now—but also ensure justice for liti-
gants in remote places in several parts
of the country.
“If a litigant wants to appeal against
any High Court order, he has to travel
from his respective place to Delhi. The
travelling and hotel costs in Delhi and
above all, the fee for lawyers of the Sup-
reme Court are huge. Establishing a re-
gional bench of the Court in south In-
dia, especially Chennai, would ensure
justice for the downtrodden and the
Is this a Chimera?
DespitethedemandforbranchesinotherpartsofIndia,therehasbeennoforwardmovement.
TheideawasmootedearlierbytheLawCommissionandVice-PresidentVenkaiahNaidu
By R Ramasubramanian in Chennai
A
STILL NO CLARITY
The Supreme Court itself had said in a
judgment that setting up branches in other
parts of the country would be considered by
the government
Anil Shakya

poorest of the poor in the country,”
Vaiko said in his speech. He added that
the chief justice of India (CJI) could
approach the president to establish a
regional bench and he could do so under
Article 130 of the Constitution. The
Article says: “The Supreme Court shall
sit in Delhi or in such other place or
places, as the Chief Justice of India may,
with the approval of the President, from
time to time, appoint.”
Similar concerns were raised by
DMK MP and former Additional Soli-
citor General of India P Wilson. He said
that (when it comes to litigants outside
Delhi), access to the Supreme Court is
restricted only to those who are affluent
and rich. “The litigants should have the
economic means to travel and afford a
lawyer in Delhi. This effectively rules
out a large percentage of the population
who do not have the economic means,
and therefore can litigate only up to the
High Court,” he said.
The idea has been mooted several
times by parliamentary standing com-
mittees, the Law Commission (in its
229th report) and by Vice-President and
Rajya Sabha Chairman M Venkaiah
Naidu himself. Further, Wilson said that
setting up regional benches of the Sup-
reme Court would improve the judge-to-
litigant ratio in India. At present, the
ratio of Supreme Court judges to the
population of the country and the dock-
et (list of cases to be dealt with in a par-
ticular court) of the Court is minuscule.
He said, for a total population of 133.92
crore, the strength of Supreme Court
judges is just 34.
“It is expedient that in the interest of
administration and access to justice,
which is a fundamental right, the law
ministry must take forward this propos-
al with the chief justice of India .... Even
otherwise, it is always open to the gov-
ernment to introduce appropriate Cons-
titutional amendments to mandate this,”
Wilson added.
T
he demand for setting up branch-
es of the Supreme Court in im-
portant state capitals is an old
one. Interestingly, in a 1986 judgment,
the Court said that opening branches in
other parts of the country would be con-
sidered by the government. In addition
to this, two separate Law Commission
reports had also recommended the set-
ting up of Supreme Court branches.
The Law Commission’s 125th report
said: “The Supreme Court sits in New
Delhi alone. The Government of India
on a couple of occasions sought the opi-
nion of the Supreme Court of India for
setting up branches in the South. This
proposal did not find favour with the
Supreme Court. The result is that those
coming from distant places like Tamil
Nadu in South, Gujarat in West and
Assam and other states in the East have
to spend a huge amount on travel to
reach the Supreme Court. An adjourn-
ment becomes prohibitive.”
In addition, the 229th Law Commi-
ssion report said that one bench each
can be set up in the northern, southern,
eastern and western regions to deal with
all appellate work arising out of orders/
judgments of High Courts. But so far,
there has been no forward movement on
this issue.
Another related issue has also crop-
ped up in the past. A demand for setting
up of a National Court of Appeals in
Chennai, Kolkata, Mumbai and Delhi
was raised. This model prevails in the
US, where all 50 states have their own
Supreme Courts, called the National
Court of Appeals (NCA).
In the NCA, all appeals against High
Court orders/judgments related to crim-
inal, civil and other matters are taken up
for hearing/scrutiny, while in the US
Supreme Court, only matters related to
Constitutional issues are entertained.
All other appeals are dealt with by
the NCA.
In fact, a petition was filed a few
years ago in the Supreme Court of India
praying that the Court direct the gov-
ernment to constitute an NCA. How-
NEED OF THE HOUR
(From left) MDMK’s Vaiko and DMK's P
Wilson raised the issue of establishing an SC
branch in Chennai in the Rajya Sabha;
Vice-President M Venkaiah Naidu

Legal Eye/ Supreme Court’s Regional Benches
ever, the Modi government opposed this
move and the idea was dropped. The
Congress’s 2019 election manifesto
promised the setting up of NCAs.
B
ut this is easier said than done as
it requires a Constitutional am-
endment. “This is difficult as
both Houses of Parliament have to agree
to this proposal and not all parties are
showing an interest in it. The BJP, in
fact, opposed it. But creating Supreme
Court branches in the four corners of
the country is much easier because it
needs just an executive order and the
government can do this by consulting
the chief justice,” said Wilson to
India Legal.
Venkaiah Naidu supported the idea
of setting up of branches of the Supreme
Court in other parts of the country. “We
need to bring the judicial system closer
to people. Expanding the Supreme Co-
urt bench and having separate benches
in different regions and at least one in
Chennai on a trial basis has been sug-
gested by the Parliamentary Standing
Committee of Law and Justice and I
think it is high time to do this,” he said
at a function held in Chennai a few
months back.
In Tamil Nadu, the legal fraternity is
all for a Supreme Court branch in Che-
nnai. “This is the need of the hour. The
centre in consultation with the Supreme
Court must establish an apex court ben-
ch in Chennai. Already, there are bran-
ches of several High Courts functioning
in India. The Bombay High Court has
got an Aurangabad Bench, the Allaha-
bad High Court has a Lucknow Bench,
the Madras High Court has a Madurai
Bench. So what’s wrong with having a
Supreme Court bench in Chennai? It is
needed to minimise the suffering of liti-
gants. In fact, our manifesto for the
2019 Lok Sabha elections promised a
Supreme Court bench in Chennai,” said
BM Velu, an advocate.
But in spite of all the support, the
prospects of the idea fructifying are
bleak. Judicial sources allege that pow-
erful lobbies in the bench and the bar in
Delhi won’t allow this to happen. “A sen-
ior advocate in the Supreme Court char-
ges between `7.5 lakh to `25 lakh for
each appearance. If you open branches
in other parts of the country, a new crop
of senior advocates will come up and
make a dent in the earnings of senior
advocates of the Supreme Court,” said a
retired Madras High Court judge on
condition of anonymity.
The writing on the wall is clear.
NEEDLESS HARASSMENT
Setting up SC regional benches would save
money and time for litigants who come to Delhi
Farfromsettled
It was in April 1984 that the issue of
setting up of separate branches of the
Supreme Court outside Delhi was bro-
ught up in the Rajya Sabha. Minister of
Law, Justice and Company Affairs
Jagannath Kaushal said that no such
proposal was received from the chief
justice of India.
In December 2008, the issue was
again raised by Prof PJ Kurien in the
Rajya Sabha. The then Minister of Law
and Justice, HR Bhardwaj, replied that
the full court of the SC had decided
against it.
Two years later, the full court of the
SC, headed by then CJI KG Bala-
krishnan, made its stand clear that
dividing the top court would affect the
country’s unitary character.
In May 2012, Vijay Jawaharlal Darda
raised a question in the Rajya Sabha
on whether the Law Commission’s rec-
ommendations for setting up a Consti-
tutional court in New Delhi and four
Supreme Courts in Metros would be
implemented. The then Minister of Law
and Justice, Salman Khurshid, replied
that the recommendations on setting
up a Constitutional court in Delhi and
four cassation branches in the Northern
region/zone at Delhi, the Southern re-
gion/zone at Chennai/Hyderabad, the
Eastern region/zone at Kolkata and the
Western region/zone at Mumbai to deal
with all appellate work from orders/jud-
gments of the High Courts of the partic-
ular region were referred to the CJI,
who said that the full court had unani-
mously resolved that the recommenda-
tions could not be accepted.
In April 2015, the issue was again
raised in the Rajya Sabha by Prof MV
Rajeev Gowda before the then Minister
of Law and Justice, DV Sadananda
Gowda, who replied that the Court
found no justification for setting up of
bench(es) of the SC outside Delhi.
The matter again came up in July
2015 and a bench headed by then CJI
HL Dattu and comprising Justices Arun
Mishra and Amitava Roy dismissed a
petition seeking the setting up of a sep-
arate bench at Chennai.
—Dipankar Malviya
Anil Shakya

to the experience so far, the question is
whether the judgment is going to make
any real difference to the political life of
the country.
Though the Supreme Court has dec-
lared secularism a part of the basic
structure of the Constitution, it has
continued to languish in terms of its
operationalisation.
No other feature of the basic struc-
ture has been neglected so blatantly.
To give just one example, not even a
HE Supreme Court decision
on 2 January on the interpre-
tation of Section 123 (3) of the
Representation of the People
Act (RP Act) forbidding seek-
ing of votes in the name of religion, ra-
ce, caste, community or language has
made a candidate liable to the risk of
being guilty of electoral corrupt practice.
Several political parties such as the
Bharatiya Janata Party (BJP) and the
Congress have welcomed it. But, looking
show cause notice has been issued by
the Election Commission of India to any
political party for contravening the com-
mitment to abide by the tenets of secu-
larism, leave aside taking steps for can-
cellation of its registration.
It is important to note that the
The book is a collection of selected essays on some of the burning
issues facing India. The articles bring into focus the importance of
safeguarding secularism in the country
T
Supreme Court Verdict: Back to
Square One, if not Minus One
Book Extract/ India’s Governance/ Madhav Godbole
NEED FOR SECULARISM
BJP supporters at an election rally. The
question of separating religion from politics
was identified as a critical issue in 1948
UNI

Book Extract/ India’s Governance/ Madhav Godbole
function and are recognised, though
their composition may be predominant-
ly based on membership of particular
communities or religions.’
In Dr Ramesh Yeshwant Prabhoo vs.
Prabhakar Kashinath Kunte (AIR 1996,
SC 1113), which is known as the Hin-
dutva case, the court held that the term
‘Hindutva’ is related more to the way of
life of the people in the sub-continent.
‘It is difficult to say that the term
‘Hindutva’ or Hinduism, per se, in the
abstract, can be assumed to mean and
be equated with narrow fundamentalist
Hindu religious bigotry or be construed
to fall within the prohibition in Sub-
section (3) and/or (3A) of Section 123
of the RP Act...’
‘The word Hindutva is used and
understood as a synonym of “Indiani-
sation” i.e. development of uniform cul-
ture by obliterating the differences
between all cultures co-existing in
the country.’
I had highlighted in my book, Good
Governance Never on India’s Radar
(Rupa & Co, 2014, p.158) that this will
evoke fears of obliterating the religious
and cultural identities of the minorities
in the country.
Equally difficult to understand is the
logic of the court in its assertion that a
mere statement that the first Hindu
state will be established in Maharashtra
is by itself not an appeal for votes on the
ground of his religion, but the expres-
sion, at best, of such a hope.
T
he fact that all these election pe-
titions were based on the speech-
es made by leaders of the Shiv
Sena and the BJP, whose political ideol-
ogy is based on the furtherance of Hin-
du religion at any cost, also has an im-
portant bearing on the issues at hand.
Rajeev Dhawan, senior advocate, has
recalled how he had appealed the 1995
order the same year, but the court had
refused to reopen the judgment except
for any problems in technical matters, in
case they existed. ‘So that judgment
hangs over our heads as Hindutva hangs
on our head, as it is a political platform.’
judgment is not unanimous and is based
on a slender majority of 4:3.
Attention needs to be invited to the
very weighty points raised in the dis-
senting judgment. The issues raised
therein cannot be brushed aside and are
bound to come up whenever Parliament
decides to go for the revision of the RP
Act and attempts suitable constitutional
amendments.
The question of separation of reli-
gion from politics was identified as a
critical issue for the political life of the
country way back in 1948, even before
the Constitution was promulgated.
The resolution on the subject moved
by Ananthsayanam Ayyangar was nearly
unanimously adopted by the Constitu-
ent Assembly (Legislative), barring the
single dissenting vote by Ishaq Seth.
It is a travesty that though nearly 70
years have elapsed, India is still strug-
gling with the question of translating it
into a reality.
During this period, repeated observa-
tions of the Supreme Court have high-
lighted how it is helpless in doing justice
in the appeals in election cases filed be-
fore it as there is no law separating reli-
gion from politics.
PB Gajendragadkar, the then Chief
Justice, speaking for the Supreme Court
in Kultar Singh vs. Mukhtiar Singh
(AIR 1980, SC 354) had, inter alia,
observed that ‘there are several [politi-
cal] parties in this country which sub-
scribe to different political and econom-
ic ideologies, but their membership is
confined to, or predominantly held by,
members of particular communities
or religions.
‘So long as the law does not prohibit
the formation of such parties and in fact
recognises them for the purpose of elec-
tion and parliamentary life, it would be
necessary to remember that an appeal
made by such candidates of such parties
for votes may, if successful, lead to their
election and in an indirect way, may
conceivably be influenced by considera-
tions of religion, race, caste, community
or language.’
‘This infirmity cannot perhaps be
avoided so long as parties are allowed to
AfterthedemolitionofBabri
Masjid,aneffortwasmadeto
separatereligionfrompolitics
throughanamendmentbillin
1993,butparliamentrejectedit.

lighted the Supreme Court’s importance
as a Constitutional court.
However, as it often happens, the
baby was thrown out with the bath
water and the question of ensuring that
the Supreme Court discharges its func-
tions as a Constitutional court speedily
and effectively still remains to be
addressed.
Disturbingly, the dissenting judg-
ment of the Supreme Court has raised
doubts whether religion, race, caste,
community, language, etc. can be sepa-
rated from politics at all.
It has rightly underlined that this
question should be addressed by Par-
liament rather than the Supreme Court.
Due to the unnerving memories of
the Partition of the country and the poi-
son of communalism which has contin-
ued to afflict the country to this day,
separation of religion from politics is a
matter of serious and urgent concern.
Such an effort was made in 1993
after the demolition of the Babri Masjid
by frenzied mobs. But the Constitution
Amendment bill and the bill to
Dhawan has also stated that ‘Justice
J.S. Verma (who had delivered the 1995
judgment) too was apologetic about that
judgment and said it had been misun-
derstood.’ (The Indian Express, 3
January 2017).
It was way back in 1996 that a three-
member bench of the Supreme Court in
the Abhiram Singh case had directed
that the issues arising out of the
Hindutva case be placed before a larger
bench of five judges at an early date so
that all questions could be decided
authoritatively and expeditiously.
Later, in January 2014, a five-judge
bench referred this question to a larger
seven-judge bench.
I
t is unfortunate that this issue has
still remained undecided though the
Hindutva judgment goes to the very
crux of the problem of separation of reli-
gion and politics.
Unfortunately, the Supreme Court
judgment in January also sidestepped
this issue. The inordinate delay in the
decision on the Hindutva case under-
lines the need to ensure that the Sup-
reme Court deals with crucial Consti-
tutional questions expeditiously.
This was also underlined by the
question pertaining to the rampant mis-
use of the Ninth Schedule of the Consti-
tution, which was nothing less than a
fraud on the Constitution but was decid-
ed by the Court only in January 2007.
The Swaran Singh Committee on
Constitutional Reforms, whose recom-
mendations led to the highly controver-
sial 42nd Amendment of the Constitu-
tion during the Emergency, had high-
amend the RP Act failed to get support
in Parliament.
This was largely due to the failure of
the government in building a political
consensus on the subject before intro-
duction of the bills.
It was also due to the fact that the
scope of the bills included not just the
separation of religion from politics, but
also to bring in their ambit race, caste
community, language, etc.
The government should have desist-
ed from excessively widening the field of
legislation, as many of the concerns per-
taining to race, community, caste, and
language are already addressed in the
Unlawful Activities (Prevention) Act.
If necessary, that Act could have
been amended suitably. The thrust of
the 1993 amendments ought to have
been restricted to eliminating the asso-
ciation between religion and politics.
Other concerns could also be partly
dealt with by amending the election law
and laying down that a candidate would
have to get minimum 50 per cent plus
one vote to win an election to a legisla-
ture or Parliament.
This would impel the candidates to
make an appeal to broader segments of
their constituencies.
The issues involved are highly con-
troversial and emotive. Any legislative
and other steps taken by the govern-
ment are likely to be challenged in the
court leading to endless litigation.
Considerable precious time has already
been lost.
I would therefore suggest that the
President of India (central government)
should seek an advisory opinion of the
Supreme Court under Article 143 of the
Constitution without any loss of time.
—The author is a reputed
bureaucrat who retired in 1993 after
serving as Union Home Secretary and
Secretary, Justice, among other senior
positions in the government
India’s Governance
An incisive
commentary on
some burning
issues
Author: Madhav
Godbole
Published by:
Konark Publishers
Pvt Ltd.
Pages: 322
Price: `495
RajeevDhawan,senior
advocate,hasrecalledhowhe
hadappealedagainstthe
1995orderonHindutva,but
theSupremeCourthad
refusedtoreopentheverdict.

Focus/ Surrogacy (Regulation) Bill, 2019
HE Surrogacy (Regula-
tion) Bill, 2019, which was
passed by the Lok Sabha
in July, has now been sent
to the select committee of
the Rajya Sabha for a
review. The Bill seeks to put a complete
ban on commercial surrogacy, while
placing stringent regulations on altruis-
tic surrogacy. The fact that it has been
sent to the select committee means it
still requires thorough debate. Excerpts
from the Bill:
Preamble: To constitute National Sur-
rogacy Board, State Surrogacy Boards
and appointment of appropriate author-
ities for regulation of the practice and
process of surrogacy and for matters co-
nnected therewith or incidental thereto.
“Surrogacy” means a practice where-
by one woman bears and gives birth to a
child for an intending couple with the
intention of handing over such child to
the intending couple after the birth;
“Altruistic surrogacy” means the sur-
rogacy in which no charges, expenses,
fees, remuneration or monetary incen-
tive of whatever nature, except the med-
ical expenses incurred on surrogate
mother and the insurance coverage for
the surrogate mother, are given to the
surrogate mother or her dependents or
her representative;
“Commercial surrogacy” means com-
mercialisation of surrogacy services or
procedures or its component services or
component procedures including selling
or buying of human embryo or trading
in the sale or purchase of human embr-
Strict On Surrogacy
Thebillseekstobanallformsofcommercialsurrogacyandwomenwhoagreetobesurrogates
mustdosofor“altruistic”reasonsandmustbe“closerelatives”oftherecipients
Dr KK Aggarwal
T
NOTIONS OF MOTHERHOOD
The Bill aims to regulate surrogacy in India
indiansurrogatemothers.com

yo or gametes or selling or buying or
trading the services of surrogate moth-
erhood by way of giving payment, re-
ward, benefit, fees, remuneration or
monetary incentive in cash or kind, to
the surrogate mother or her dependents
or her representative;
“Couple” means the legally married
Indian man and woman above the age
of 21 years and 18 years respectively;
“Intending couple” means a couple
who have been medically certified to be
an infertile couple and who intend to
become parents through surrogacy;
“Surrogate mother” means a woman
bearing a child (who is genetically relat-
ed to the intending couple) through sur-
rogacy from the implantation of embryo
in her womb and fulfils the conditions
as provided in sub-clause (b) of clause
(iii) of section 4;
When Surrogacy Is Permitted: Sur-
rogacy is permitted when it is: (i) for
intending couples who suffer from pro-
ven infertility; (ii) altruistic; (iii) not for
commercial purposes; (iv) not for pro-
ducing children for sale, prostitution or
other forms of exploitation; and (v) for
any condition or disease specified
through regulations.
“Insurance”—an arrangement by
which a company, individual or intend-
ing couple undertake to provide a guar-
antee of compensation for specified loss,
damage, illness or death of surrogate
mother during the process of surrogacy.
Insurance coverage: This is the
amount as may be prescribed in favour
of the surrogate mother for a period of
16 months covering postpartum delivery
complications from an insurance com-
pany or an agent recognised by the Ins-
urance Regulatory and Development
Authority.
Surrogate mother is in possession of
an eligibility certificate issued by the
appropriate authority on fulfilment of
the following conditions:
(I) no woman, other than an ever-
married woman having a child of her
own and between the age of 25 to 35
years on the day of implantation, shall
be a surrogate mother or help in surro-
gacy by donating her egg or oocyte or
otherwise;
(II) no person, other than a close rel-
ative of the intending couple, shall act as
a surrogate mother and be permitted to
undergo surrogacy procedures as per the
provisions of this Act;
(III) no woman shall act as a surro-
gate mother by providing her own
gametes;
(IV) no woman shall act as a surro-
gate mother more than once in her life-
time: Provided that the number of att-
empts for surrogacy procedures on the
surrogate mother shall be such as may
be prescribed; and
(V) a certificate of medical and psy-
chological fitness for surrogacy and sur-
rogacy procedures from a registered
medical practitioner.
Eligibility certificate for intending
couple: This is issued by the appropri-
ate authority on fulfilment of the follow-
ing conditions:
(I) the age of the intending couple is
between 23 to 50 years in case of female
and between 26 to 55 years in case of
males on the day of certification;
(II) the intending couple are married
for at least five years, and are Indian
citizens;
(III) the intending couple have not
had any surviving child biologically or
through adoption or through surrogacy
earlier: Provided that nothing contained
in this item shall affect the intending
couple who have a child and who is me-
ntally or physically challenged or suffers
from life threatening disorder or fatal
illness with no permanent cure and
approved by the appropriate authority
with due medical certificate from a
District Medical Board; and
(IV) such other conditions as may be
specified by the regulations.
Appropriate authority: The central
and state governments shall appoint one
or more appropriate authorities within
90 days of the Bill becoming an Act.
The functions of the appropriate author-
ity include (i) granting, suspending or
cancelling registration of surrogacy clin-
ics; (ii) enforcing standards for surroga-
cy clinics; (iii) investigating and taking
action against breach of the provisions
of the Bill; (iv) recommending modifica-
tions to the rules and regulations.
Registration of surrogacy clinics:
Surrogacy clinics cannot undertake sur-
rogacy related procedures unless regis-
tered by the appropriate authority.
National and State Surrogacy
Boards: The central and the state gov-
ernments shall constitute the National
Surrogacy Board (NSB) and the State
Surrogacy Boards (SSBs), respectively.
Functions of the NSB include (i) advis-
ing the central government on policy
matters relating to surrogacy; (ii) laying
down the code of conduct of surrogacy
clinics; and (iii) supervising the func-
tioning of SSBs.
Parentage and abortion of surro-
gate child: A child born out of a surro-
gacy procedure will be deemed to be the
biological child of the intending couple.
No surrogacy clinic, registered med-
ical practitioner, gynaecologist, paed-
iatrician, embryologist, intending couple
or any other person shall conduct or
cause abortion during the period of
surrogacy without the written consent of
the surrogate mother and on authorisa-
tion of the same by the appropriate aut-
hority concerned: Provided that the
IntroducedbyHealthMinisterHarsh
Vardhan,theBillwaspassedbytheLok
SabhainJuly,andfollowingsuggestions
fromRSmembersforamendments,has
beenreferredtoaselectcommittee.

30 December ,2019
authorisation of the appropriate autho-
rity shall be subject to, and in compl-
iance with, the provisions of the Medical
Termination of Pregnancy Act, 1971.
Sex Selection: No surrogacy clinic,
registered medical practitioner, gynae-
cologist, paediatrician, embryologist,
intending couple or any other person
shall in any form conduct or cause to be
conducted sex selection for surrogacy.
Offences and penalties: (i) undertak-
ing or advertising commercial surroga-
cy; (ii) exploiting the surrogate mother;
(iii) abandoning, exploiting or disown-
ing a surrogate child; and (iv) selling or
importing human embryo or gametes
for surrogacy. The penalty for such offe-
nces is imprisonment up to 10 years and
a fine up to 10 lakh rupees.
Some issues continue to remain
unsolved. Among them are:
1. Medical expenses: This has not be-
en defined. Medical expenses may inclu-
de home care (physical, mental, social).
2. Close relative is the surrogate
mother and has not been defined.
3. The intending couple are married
for at least five years and are Indian citi-
zens. It denies surrogacy for residents of
Indian origin living abroad but are close
relatives. Five years is also an arbitrary
figure and not based on any science.
Any registered medical practitioner,
gynaecologist, paediatrician, embryolo-
gist or any person who owns a surrogacy
clinic or employed with such a clinic or
centre or laboratory and renders his
professional or technical services to or at
such clinic or centre or laboratory,
whether on an honorary basis or other-
wise, and who contravenes any of the
provisions of the Act (other than the
provisions referred to in section 35) and
rules and regulations made thereunder
shall be punishable with imprisonment
for a term which may extend to five
years and with fine which may extend to
ten lakh rupees. The words of any of the
provisions of this Act will include cleri-
cal mistakes and will be detrimental to
the medical profession, like the Pre-
Natal Diagnostic Techniques Act.
Medical doctors are covered under
MCI ethics and clinical establishments
under the Clinical Establishments Act.
IMC Act rule 7.3 had provisions for per-
manent deletion of a doctor if he/she is
found indulging in sex determination.
I feel the surrogacy Act can be covered
under amendments of the IMC Act and
ethics rules under MCI as far as involve-
ment of doctors is concerned.
MCI Ethics rules: 7.21: No act of
invitro-fertilisation or artificial insemi-
nation shall be undertaken without the
informed consent of the female patient
and her spouse as well as the donor.
Such consent shall be obtained in writ-
ing only after the patient is provided, at
her own level of comprehension, with
sufficient information about the pur-
pose, methods, inconveniences, disap-
pointments of the procedure and possi-
ble risks and hazards.
7.6: Sex Determination Tests: On no
account sex determination test shall be
undertaken with the intent to terminate
the life of a female foetus developing in
her mother’s womb, unless there are ot-
her absolute indications for termination
of pregnancy as specified in the Medical
Termination of Pregnancy Act, 1971.
Any act of termination of pregnancy of
normal female foetus amounting to fe-
male foeticide shall be regarded as pro-
fessional misconduct on the part of the
physician leading to penal erasure
besides rendering him liable to criminal
proceedings as per the provisions of
the Act.
On February 1, 2016, the Bombay
High Court directed the Central Railway
to grant maternity leave to one of its
employees who became a mother by
using a surrogate. A Division Bench of
Justices Anoop Mehta and GS Kulkarni
ruled that a mother enjoys the same
benefits of maternity leave as any other
working woman under the Child Ado-
ption Leave and Rules. “There is noth-
ing in the rules that disentitles materni-
ty leave to a woman who has attained
motherhood through surrogacy proce-
dure,” the court added.
Who can avail of the leave? The
mother or the intended mother? This is
just one of the several aspects on which
the Surrogacy (Regulation) Bill, 2019
remains silent.
—The author is president Heart Care
Foundation of India and Confederation
of Medical Associations of Asia
and Oceania
Focus/ Surrogacy (Regulation) Bill, 2019
Someissuescontinuetoremain
unsolved.Like,whowouldbeabletoavail
ofleave?Willitbethemotherorthe
intendedmother?Thesearesomeofthe
aspectsonwhichtheBillissilent.
UNI

There’s a new rulebook being distrib-
uted to leaders of prominent group-
ings: look before you speak. Though a
current joke, the reference is to the hid-
den microphone and the embarrassment
it caused at last week’s NATO meeting
where some leaders in a huddle led by
Canadian Prime Minister Justin Tru-
deau appeared to be poking fun at US
President Donald Trump, forgetting
that a microphone nearby was live.
There have been similar instances in the
past and no one seems to have learnt
this obvious lesson.
At a G20 summit in France, then
Presidents Nicolas Sarkozy and Barack
Obama were having a backroom chat.
Journalists present overheard Sarkozy
complaining to his US counterpart
about Israeli Prime Minister Benjamin
Netanyahu. “I can’t stand him anymore,
he’s a liar,” said Sarkozy. “You may be
sick of him, but me, I have to deal with
him every day,” replied Obama.
Another French President, Jacques
Chirac, caused a strain in UK-France
relations after he made comments dur-
ing an official trip to Russia. Not realis-
ing a microphone was picking up his
conversation, he said: “You can’t trust
people who cook as badly as that. After
Finland, it’s the country with the worst
food.” He was talking about Britain and
he added: “The only thing the British
have ever done for European agriculture
is mad cow disease.”
The most serious hot mic leak almost
Beware the Mic
S
tep into El Ateneo Grand Splendid
in Buenos Aires, and you could be
forgiven for thinking you have en-
tered the hushed and elaborate environs
of a magnificent theatre. That’s because it
was once a theatre and is now a bookstore
but no ordinary one. According to Na-
tional Geographic, it was ranked as the
“world’s most beautiful bookstore”
in 2019.
While books line the ornate walls, the
building features ceiling frescoes painted
by famous Italian artist Nazareno Orlandi
and sculptures by Troiano Troiani, offer-
ing a stunning vista. Many of its original
architectural details remain intact, from
the stage to the balconies and eye-catch-
ing ceiling frieze.
It first opened as a theatre in 1919, the
most celebrated in Argentina. The theatre
had a seating capacity of 1,050 with ac-
oustics to match. The El Ateneo publish-
ing house bought it over and converted it
into a bookstore in 2000, conserving its
original grandeur, but replacing seating
with bookshelves. The bookstore still bo-
asts plush crimson curtains and the origi-
nal stage is now a cafe where people-wa-
tching is a popular pastime. The 22,000
sq ft space is now the group’s flagship
store, and over a million people, including
tourists, walk through its doors annually
to witness for themselves the most beauti-
ful bookstore on the planet.
International Briefs
Most Beautiful Bookshop
Step into a car showroom and models
in every colour greet the eye—from
twilight purple pearl to volcano red, sa-
hara silver, black magic and race metallic
blue, to name just a few. However, despite
these snazzy variants, car buyers across
the world seem to prefer the most boring
of colours—white. The second and third
preferences are black and grey. This is
according to the latest annual Global
Automotive Colour Popularity Report.
The real surprise: White has been the
world’s favourite automotive colour since
2011. Silver used to be among the top
White Cars Rule
tripadvisor.in

started a war when in 1984 then US
President Ronald Reagan stated: “We
begin bombing in five minutes.” This
was at the height of the Cold War. Rea-
gan was doing a sound check before a
radio address and said jokingly: “My fel-
low Americans, I’m pleased to tell you
today that I’ve signed legislation that
will outlaw Russia forever. We begin
bombing in five minutes.”
A recording was leaked to the public
and Soviet forces were temporarily put
on high alert.
Dictionary.com has just announ-
ced its Word of the Year. It is
“Existential”. The word was primarily
searched in conjunction with climate
change, gun violence and democratic
institutions, Dictionary.com said.
Existential has two meanings: “Of
or relating to existence” and/or “con-
cerned with the nature of human
existence as determined by the freely
made choices of an individual”.
The post accompanying the ann-
ouncement by the website explained
why “Existential” made the cut: “It
captures a sense of grappling with the
survival—literally and figuratively—of
our planet, our loved ones, our ways
of life.” It went on to add:
“Existential also inspires us to ask big
questions about who we are and
what our purpose is in the face of our
various challenges—and it reminds
us that we can make choices about
our lives in how we answer those
questions.”
Despite the word’s negative con-
notations, Dictionary.com said that
“existential” has also helped people
cope. It opened the post with a nod
to “Toy Story 4”, in which a spork
named Forky (see visual above) has
an existential crisis.
Vice President Joe Biden also gave
the word a boost when he said that
President Donald Trump “is literally
an existential threat to America”.
Word of the Year
three but it dropped out this year, with
grey rising in popularity.
Basically, four colours—white, black,
grey and silver—dominate the automobile
population, representing 80 percent of
market share globally. The demand for
grey has been the maximum among SUV
and sports vehicle owners.
In Europe, grey overtook white as the
favourite while elsewhere white continues
to lead the market, with Asia having the
widest popularity spread at 49 percent.
In India, 33 percent have voted for
white—26 percent for solid white and
seven percent for pearl white. Silver with
31 percent is a close second, followed by
grey with 12 percent.
youtube.com

Global Trends/ Pakistan/ Army Chief’s Extension
AKISTAN Chief Justice
Asif Saeed Khosa made his-
tory in his country by tak-
ing on the army chief. In
this way, he has exposed
how successive govern-
ments did not dare touch the rules gov-
erning the armed forces.
After three days of intense drama
pertaining to the extension of the tenure
of Chief of the Army Staff Gen Qamar
Javed Bajwa, Justice Khosa, who is well-
read in the English classics, introduced
a new phrase, “judicial restraint” (rep-
lacing the doctrine of necessity), while
granting a conditional extension of six
months to General Bajwa. He also ex-
posed serious lacunae in the Pakistan
Constitution and Pakistan Army Act,
1952, regarding appointment, extension
and service rules of the army chief.
Justice Khosa’s act evoked mixed
reaction from the legal fraternity. Some
said that when it came to the military
establishment, even Pakistan’s highest
court wore kid gloves. They said that the
issue before the three-member bench of
the apex court was to validate or deny
the extension given to General Bajwa.
While admitting a petition filed by one
Riaz Hanif Rahi who challenged the
extension, Justice Khosa had initially
suspended it.
One of the reactions was from Babar
Sattar, a prominent Supreme Court law-
yer, who in a series of tweets said: “SC’s
order today hasn’t diminished but bol-
stered perception of legal exceptional-
ism that attaches to Army Chief: SC
could’ve ruled his reappointment legal/
valid or illegal/invalid but not that
opportunity be afforded to validate an
invalid appointment in larger national
interest.” While questioning the apex
court’s order that extension is subject to
legislation in parliament, Sattar asked:
“How can SC direct parliament to legis-
late on any issue (much less to validate
extension of an individual)? Also, under
what principle must Army Chief’s term
be specified by Parliament (& not sub-
sidiary legislation/rules) as terms of
office are defined by rules under many
laws.” He concluded that the chief jus-
tice may have entrenched the perception
he set out to dispel that the same treat-
ment is not meted out to the weak and
the powerful under law. “This sorry
episode has made everyone in PK (espe-
cially those sitting atop big institutions)
look small & desperate for power & sur-
Taking on the Army
Whilesomehavehailedthechiefjustice’smovetoreduceGeneralQamarJavedBajwa’stenure
extension,otherssayhehasmerelythrowntheballintheparliament’scourt
By Asif Ullah Khan
MAKING HISTORY
The Pakistan chief justice introduced a new
phrase, “judicial restraint”, while granting a
conditional extension to General Bajwa
P
pakistantoday.com.pk
Pakistan’schiefjustice,AsifSaeed
Khosa,exposedseriouslacunaeinthe
PakistanConstitutionandPakistanArmy
Act,1952,regardingappointment,exten-
sionandservicerulesofthearmychief.

India Legal - 16 December 2019

India Legal - 16 December 2019

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