India legal 18 march 2019

Prof NR Madhava Menon:
Poetic justice to death convict
J&K Constitution Amendments:
Electoral gambit?
Inasevereblowtothecentre,theDelhiHighCourthasblockedanordinance
confiscatingwithoutcompensationtheindependentInternationalCentre
ForAlternative Dispute Resolution whosechairpersonistheChiefJusticeofIndia
NAKEDAGGRESSION
NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
March18,2019
IC
A D R
TAKEOVER
BID

Editor N Ram of The Hindu,
who was in the forefront of exposing
illegal payments in finalising the pur-
chase of the Bofors gun for the Indian
military during Rajiv Gandhi’s premier-
ship in the mid-1980s—and hailed by the BJP as a
hero—is today facing flak from the BJP as an anti-
national traitor.
So much so that the government’s attorney
general, KK Venugopal, has argued in the Sup-
reme Court, alluding to Ram, that the Official
Secrets Act (OFA) should be invoked against him
for publishing “stolen documents” indicating
malfeasance by the Modi government—indeed by
the Prime Minister’s Office—in the deal with
France for the purchase of 36 Rafale multi-role
fighter planes for the Indian Air Force.
The details of the allegations—which include
favouritism and contract manipulation—have
been widely reported by most media outlets, espe-
cially online portals. What is important is that
these allegations are not hearsay or gossip or
based on talks with anonymous sources but rather
founded on official documents and notations. It is
ironical that most of the Bofors revelations, which
helped bring Rajiv Gandhi down, were also based
on government documents often sourced by The
Hindu and other publications from the very politi-
cal party that is now denouncing Ram as a traitor
who should be locked up under the Official
Secrets Act. Next, they will probably raise the
demand that reporters and editors who touch this
sensitive subject, which is an election issue, should
be tried for treason.
Ram has already called the OFA “obnoxious”—
a piece of legislation that should be junked
because it was formulated by the British to protect
the Raj and its imperialist crimes from public
scrutiny and debate. His newspaper, he said, is
“totally justified” in publishing the information
related to the Rafale fighter jets deal and under-
lined that he and the newspaper are protected by
the law.
He has pledged not to reveal the identity of his
sources. In several interactions with the media,
Ram has stated: “You may call it stolen docu-
ments...we are not concerned. We got it from con-
fidential sources and we are committed to protect-
ing these sources. Nobody is going to get any
information from us on these sources. But the
documents speak for themselves and the stories
speak for themselves.”
Investigative journalism, especially when
aimed at the government, always inflames the
powers that be and they shroud their wrongdoings
with the cover of national security and patriotism,
which, as a famous saying goes, are the last refuge
of scoundrels.
“We are fully protected under Article 19(1)(a)
of the Constitution of India which gives expres-
sion of freedom, and also by the Right to Informa-
tion Act, specifically Sections 8(1)(i) and 8(2),
which overwrites the Official Secrets Act of 1920,”
Ram has publicly stated.
He added: “All I can say is that we are fully jus-
tified in publishing this information. The inves-
tigative journalism comes into play precisely when
the information which should be in the public
domain is not there, or is consciously suppressed
as a cover-up. And I think it’s our duty to (unearth
such details) provided the issue is relevant and of
the larger public interest.”
The Editors Guild of India unequivocally con-
demned the attorney general’s comments before
the Supreme Court pertaining to documents
based on which the media, including The Hindu,
had reported on the Rafale deal.
Venugopal had sought dismissal of a petition
for a review of the apex court’s earlier judgment,
giving the government a clean chit, on the ground
that the fresh petition had relied on documents
that were “stolen” from the defence ministry and
that investigations were going on to find out if
it was a crime and violative of the Official
Secrets Act.
The Guild said that although the attorney gen-
eral later clarified that the investigation and con-
templated action would not be initiated against
WHO PROTECTS THE
NATIONAL INTEREST?
Inderjit Badhwar
Letter from the Editor
V
Itisironicalthat
mostoftheBofors
revelations,which
helpedbringRajiv
Gandhidown,were
alsobasedongov-
ernmentdocuments
oftensourcedby
TheHindu and
otherpublications
fromtheverypoliti-
calpartythatis
denouncingRamas
atraitor.Nowthey
willprobablywant
thatreportersand
editorswhotouch
thissensitivesub-
ject,alsoanelec-
tionissue,shouldbe
triedfortreason.
| INDIA LEGAL | March 18, 2019 3

journalists or lawyers who used these documents, “the
Guild is perturbed over such threats. These will intimi-
date the media in general and curb its freedom to report
and comment on the Rafale deal in particular. Any
attempt to use the Official Secrets Act against the media
is as reprehensible as asking the journalists to disclose
their sources.
“The Guild denounces these threats and urges
the government to refrain from initiating any
action that might undermine the media’s freedom and
independence.”
What I found of equal interest were the Supreme
Court’s comments. Venugopal argued that the review
petition must be dismissed because the documents on
which it was based were not admissible. “Having these
documents is an offence under the secrecy act. The gov-
ernment is planning to launch a prosecution.” Justice
KM Joseph stated: “The issue here is that the law of the
country has been broken by corrupted practices. Even
stolen evidence can be looked into, provided it is rele-
vant and authentic. You must talk about the law.”
When the government insisted that the Court cannot
look into the documents unless the source is known and
is lawful, Justice Joseph observed: “There were allega-
tions of corruption in Bofors. Now will you say the same
thing that a criminal court shouldn’t look into any such
document?....We are here to enunciate the law…. Now
where do we get an authority which says if a document
comes from an unknown or unlawful source, documents
cannot be looked into?”
Justice SK Kaul then intervened: “If the documents
were stolen, the government should put its own house
in order. It is one thing to say that we should look at
these documents with suspicion. But to say we can’t
even look at those documents may not be a correct sub-
mission in law.”
The government also argued that the plea for an
inquiry into the Rafale deal should be dismissed also on
the grounds that Pakistan had used F-16 aircraft during
the recent cross-border dogfights. “Recent incidents
have shown how vulnerable we are. When others have
superior F-16 aircraft, should we also not buy better air-
crafts? There will be damage done to the country by
seeking a CBI inquiry,” the government argued. Justice
Joseph disagreed: “Are you going to take shelter under
national security when the allegation is of grave crime,
corruption?”
Central to this entire exchange is who represents or
defines the national interest—a government which has a
vested interest in hiding embarrassing information or
the Press or whistleblowers who feel it is their duty to
expose waste, fraud and corruption?
T
he US has a strong Whistleblower Protection Act
which is premised on the constitutional doctrine
that government employees owe their allegiance
not to their political bosses, but to the constitution and
to the people of America who are sovereign, and must
therefore be protected from official retaliation when
they expose wrongdoing and lies by their departments,
agencies or political superiors.
Perhaps the most celebrated whistleblower of our
time is Daniel Ellsberg, the former top security US mili-
tary analyst and government contractor. He disclosed a
classified government study about the Vietnam war,
later known as the “Pentagon Papers”. Ellsberg’s act,
according to US watchdog group Government Accoun-
tability Project (GAP) proved several administrations
had directly lied to the Congress and the public about
their intentions and actions in Vietnam. This ultimately
led to protests, contributed to the resignation of Presi-
dent Richard Nixon, and emboldened the media when
the Supreme Court decided against prior restraint
against publishing stories in New York Times Co. v.
United States.
There was a mention of US laws and precedents dur-
ing the Indian Supreme Court hearing. And Ram has
referred to Ellsberg, a reference many Indians may have
missed. To quote directly from his official biography:
“Inspired by a young Harvard graduate named
Randy Kehler who worked with the War Resisters
League and was imprisoned for refusing to cooperate
with the military draft—as well as by reading Thoreau,
Gandhi and Dr. Martin Luther King—Ellsberg decided
to end what he saw as his complicity with the Vietnam
Letter from the Editor
4 March 18, 2019
RIGHT TO REVEAL
Calling the Official Secrets Act as “obnoxious”, N Ram of The Hindu has said
that his newspaper is “totally justified” in publishing the information on Rafale

War and start working to bring about its end. He
recalled, ‘Their example put the question in my head:
What could I do to help shorten this war, now that I’m
prepared to go to prison for it?’
“In late 1969, with the help of former RAND col-
league Anthony Russo, Ellsberg began secretly photo-
copying the entire Pentagon Papers. He privately
offered the Papers to several Congressmen, including
the influential J William Fulbright, but none was will-
ing to make them public or hold hearings about them.
So, in March 1971, Ellsberg leaked the Pentagon Papers
to The New York Times, which began publishing them
three months later.
“When the Times was slapped with an injunction
ordering a stop to publication, Ellsberg provided the
Pentagon Papers to The Washington Post and then to
15 other newspapers. The case, entitled New York
Times Co. v. United States, ultimately went all the way
to the United States Supreme Court, which on June 30,
1971, issued a landmark 6-3 decision authorising the
newspapers to print the Pentagon Papers without risk
of government censure.
“Not specifically because Ellsberg released the
Pentagon Papers—which covered only the period up to
1968 and therefore did not implicate the Nixon admin-
istration—but rather because they feared, incorrectly,
that he possessed documents concerning Nixon’s secret
plans to escalate the Vietnam war (including contin-
gency plans involving the use of nuclear weapons),
Nixon and Kissinger embarked on a fanatical campaign
to discredit him. An FBI agent named G Gordon
Liddy and a CIA operative named Howard Hunt—a
duo dubbed “the Plumbers”—wiretapped Ellsberg’s
phone and broke into the office of his psychiatrist, Dr
Lewis Fielding, searching for materials with which to
blackmail Ellsberg. Similar ‘dirty tricks’ by ‘the
Plumbers’ eventually led to Nixon’s downfall in the
Watergate scandal.
“For leaking the Pentagon Papers, Ellsberg was
charged with theft, conspiracy and violations of the
Espionage Act, but his case was dismissed as a mistrial
when evidence surfaced about the government-ordered
wiretapping and break-ins.
“Ever since his leak of the Pentagon Papers, Ellsberg
has remained active as a scholar and anti-war, anti-
nuclear weapons activist. He has authored three books:
Papers on the War (1971), Secrets: A Memoir of Vietnam
and the Pentagon Papers (2002) and Risk, Ambiguity
and Decision (2001) as well as countless articles on
economics, foreign policy and nuclear disarmament. In
2006, he received the Right Livelihood Award, known
as the ‘Alternative Nobel Prize’, ‘for putting peace and
truth first, at considerable personal risk, and dedicating
his life to inspiring others to
follow his example’”.
America has a rich histo-
ry of whistleblowers and
massive retaliation against
them. If they, like Ellsberg,
received any protection, it
was from the free press and
the courts. There was no leg-
islation to safeguard their
rights until 1989, when the
Whistleblower Protection
Act (WPA) came into being.
The Whistleblower
Protection Act of 1989 is a
law that protects federal gov-
ernment employees in the
United States from retaliato-
ry action for voluntarily dis-
closing information about
dishonest or illegal activities
occurring in a government
organisation.
WPA, also prohibits a federal agency from taking
action or threatening to take action against an employ-
ee or applicant for disclosing information that he or she
believes violated a law, compliance rule or another reg-
ulation. The disclosed information could include
reports of management wrongdoing, waste of funds,
abuse of authority and a potential risk to public health
or safety.
The US Office of Special Counsel has jurisdiction
over allegations of federal whistleblower retaliation and
investigates federal whistleblower complaints.
A whistleblower is anyone who uncovers activities
that could be illegal, unethical or inappropriate and
then reports that activity to authorities or otherwise
makes the activities known—i.e., reporting the wrong-
doing to a news outlet.
A whistleblower can be someone working in or with
the public sector at the local, state or federal govern-
ment level. A whistleblower may also be someone
working in or with private, for-profit companies, as
well as non-profit entities.
In India, proposed legislation on this subject has
been languishing. And perhaps justice and protection
will come from the courts and judiciary rather than
the Executive.
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
A TEMPLATE FOR WHISTLEBLOWERS
Ram has referred to US Daniel Ellsberg
(above), who leaked the Pentagon
Papers to The New York Times

ContentsVOLUME XII ISSUE18
MARCH18,2019
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6 March 18, 2019
12Naked Aggression
A rushed ordinance brought in by the centre to replace the International Centre for
Alternative Dispute Resolution with the New Delhi International Arbitration Centre has been
stayed by the Delhi High Court
LEAD
18Creative Licence
A convict had his death sentence commuted to life after the judges saw his poems and
circumstances and felt it did not fit the “rarest of rare” category, writes Prof NR Madhava Menon
SUPREMECOURT
20Aadhaar Revisited
There is no need for any immediate judicial challenge to the Aadhaar and Other Laws (Amendment)
Ordinance, 2019, as it will come up for automatic reconsideration within six months
ACTS&BILLS
23Free Up Spaces
A PIL in the Delhi High Court has brought up the chaos caused by abandoned and unused
vehicles in public spaces in the capital
COURTS

Ghost from the Past
REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design
ANTHONY LAWRENCE
Ringside............................8
Courts ...............................9
Is That Legal...................10
46
No Let-Up
As former aides spill the beans and multiple House committees begin to probe
Donald Trump’s myriad dealings, the US president is starting to feel the heat
40
GLOBALTRENDS
Kerala Chief Minister Pinarayi Vijayan faces an uncertain future as the Supreme Court is set
to hear a corruption case involving him and Canadian company SNC-Lavalin
Wild Fire
A fire which blazed through the Bandipur National Park and was
allegedly man-made, has destroyed over 4,000 hectares of forest.
The matter has been brought to the notice of the Supreme Court
34
CRIME
Myopic Move?
The centre's decision to ban the Jamaat-e-Islami Jammu and
Kashmir under the Unlawful Activities (Prevention) Act seems
inexplicable and surprising
Hope Kindles, At Last 44
The Urban Job Guarantee Scheme of the Kamal Nath government will benefit 6.5 lakh
unemployed youth. However, it is unlikely to cure the dire joblessness in the state
A Conflict of Interest?
The collaboration between ICMR and Pfizer is a part of the latter’s
CSR activity and is independent of its commercial interests
48Turf Wars
The centre’s extension of two constitutional
amendments to J&K has met with strong
opposition from political parties in the state
who feel that the move is electorally
motivated and violates its autonomy
24
28
Of Bloody Political Feuds
An arrest warrant has been
issued by a court in Kutch
against former BJP
legislator Chhabil Patel for
his alleged involvement in
the murder of Jayanti
Bhanushali, former vice-
president of Gujarat BJP
30
COLUMN
ENVIRONMENT
Turn Over a
New Leaf
The draft policy released by the
Delhi government for the preserva-
tion and transplantation of trees
affected by any project is concep-
tually simple and breathtaking
32
Sit Down,
Be Counted
A year after the Kerala government brought
in rules to improve the working conditions
of salesgirls working in textile and jewellery
shops, little seems to have changed
STATES
No Free
Spills
The NGT has come down
heavily on the Indian Oil
Corporation refinery in
Panipat for blatantly
polluting the environment
36
Rainbow Love
The Rajasthan High Court has come out in
support of a lesbian couple and asked the
police to ensure that they suffer no physical
harm
38
SPOTLIGHT
42
MYSPACE

8 March 18, 2019
“
RINGSIDE
“Did we go to Nawaz
Sharif? Did we invite
them to Pathankot? Prime
Minister had got ISI to
investigate Pathankot. Pri-
me Minister is going to
Mr Nawaz Sharif’s (fami-
ly) wedding and we are
the poster boys. He is the
poster boy of Pakistan....”
—Congress president Rahul
Gandhi on Narendra
Modi’s allegation that the
Opposition is the poster
boy of Pakistan
“...when the whole country
wants to defeat Modi-
Shah duo, Cong is helping
BJP by splitting anti-BJP
vote. Rumours r that Cong
has some secret unders-
tanding wid BJP. Delhi is
ready to fight against
Cong-BJP alliance....”
—Delhi CM Arvind Kejri-
wal after the Congress deci-
ded against an alliance
with it, on Twitter
“Narendra Modi, Nitish and
Paswan exerted themselves
for months, even used the
government machinery to
ensure a handsome
turnout.... The number of
people who gathered there
was about the same that I get
flanked by whenever I stop
my car at a paan ki gumti....”
—RJD chief Lalu Prasad
Yadav on the BJP-led coali-
tion rally in Patna
“That statement will be
made by the government.
Air Force is not in a posi-
tion to clarify how many
people were inside... We
don’t count human casual-
ties, we count what targets
we have hit or not hit...
We can’t count how many
people have died....”
—Air Chief Marshal BS
Dhanoa on the casualties
inflicted by the IAF in
the air strike against
Pakistan
“There should not be any statement and
one should understand the feelings
prevailing in the country. This is not a
political issue and...concerns the unity
and integrity of the country. Where the
people of the country are united, there
should not be any political statement....”
—Bihar Chief Minister Nitish Kumar, referring to the
Pulwama attack and the air strike by the IAF
“I’ve always said the Congress is with us in the gathband-
han. Mayawatiji is there, Jayanth Chaudharyji is with us,
the Congress is also with us…. I don’t know where this
question of Congress not being there is coming from…
Congress is also part of the grand alliance....”
—Samajwadi Party president Akhilesh Yadav at
a press conference in Lucknow
“Whoever is raising these issues is being branded as anti-
national and Pakistani. We are proud to be Hindustani.
My father was also a freedom fighter and we need no
lessons on nationalism from those who killed Gandhiji.”
—West Bengal CM Mamata Banerjee on the Opposition
seeking proof of casualties in Balakot strike

Courts
—Compiled by India Legal Team
NGT imposes
`500 crore fine on
Volkswagen
Ending weeks of speculation, the Supreme
Court ordered that the Babri Masjid-Ram
Janmabhoomi title suit be referred for court-
monitored mediation. The constitution bench,
comprising Chief Justice Ranjan Gogoi and
Justices SA Bobde, DY Chandrachud, Ashok
Bhushan and S Abdul Nazeer, appointed a
panel of three mediators for the purpose and
directed that while the entire process must
be concluded within eight weeks, the first
status report of the negotiations should be
filed with the court within four weeks. The
panel of mediators will be chaired by Justice
FMI Kalifulla, who had retired from the
Supreme Court in July 2016, and will also
comprise Art of Living founder Sri Sri Ravi
Shankar and Madras-based senior advocate
Sriram Panchu, one of the country’s fore-
most legal minds on mediation. The bench
has ordered that the mediation process
should begin within a week from March 8 in
Faizabad, Uttar Pradesh, and that it should be
kept confidential. The media has been barred
from reporting on its proceedings. The court
proceedings in the title suit, if still required,
will commence only after the mediation
process concludes.
Apex court refers
Ayodhya dispute
for mediation
While the Supreme Court was hearing a
clutch of review petitions against its
December 14, 2018, verdict which had ruled
out a court-monitored probe into the Rafale
deal, Attorney General KK Venugopal, appear-
ing for the centre, told the Court that the doc-
uments related to the Rafale deal were stolen
from the office of the Ministry of Defence.
The A-G also submitted that the said docu-
ments were protected under the Official Sec-
rets Act and thus urged the Court to dismiss
the review pleas as they were based on doc-
uments that were “inadmissible as evidence”.
Arguing that the documents published by The
Hindu newspaper and the one shared by
news agency ANI were not supposed to be in
the public domain, the A-G also raised the
“national interest” argument. However, the
bench said that similar circumstances existed
in the Bofors scam trial and if the centre’s
claims were to be accepted, all cases linked
with Bofors should be closed too.
The National Green Tribunal
(NGT) slapped a fine of `500
crore on German automaker
Volkswagen for installing “cheat
devices” in its cars that helped
the company manipulate the
emission tests. The NGT ordered
that the penalty must be paid in
two months’ time. In November
last year too, the NGT had
slammed the carmaker for not
depositing `100 crore in accor-
dance with its previous order,
and in January this year, it
ordered the company to pay the
fine within “24 hours”. The tribu-
nal also constituted a team of
representatives from the Central
Pollution Control Board, Ministry
of Heavy Industries, Automotive
Research Association of India
and National Environmental
Engineering Research Institute,
which recommended a fine of
around `171 crore on the car-
maker for causing health dam-
age due to excessive nitrogen
oxide emissions and worsening
the air pollution in Delhi.
Justice AK Sikri, the sec-
ond senior-most judge in
the apex court after Chief
Justice Ranjan Gogoi, retired
on March 6. During his six-
year tenure, Justice Sikri
was part of different bench-
es which decided various
significant issues, such as
the rights of the transgender
community, the constitution-
al validity of Aadhaar and the
separation of powers bet-
ween the Delhi government
and the Lieutenant Governor.
However, recently, he court-
ed controversy over his
selection as a member of the
Commonwealth Secretariat
Arbitral Tribunal, days after
he was nominated by the CJI
to the selection panel that
decided to remove CBI
director Alok Verma.
Justice AK Sikri
retires from
Supreme Court
Rafale documents stolen:
Attorney General to SC

10 March 18, 2019
ISTHAT
Is the right to free education a
fundamental right?
The right to free education is a fun-
damental right in India, and thus no
citizen can be deprived of it. Article
21A of the Constitution provides for
free and compulsory education to
all children between 6 and 14 years
of age. Article 45 also imposes
upon states a responsibility to pro-
vide for early childhood care and
education. Further, the Right of
Children to Free and Compulsory
Education Act enacted in 2009
describes why education is impor-
tant and provides for free education
to children up to the age of 14
years. The Act also directs all pri-
vate schools to reserve some seats
for children from the poorer sec-
tions of society. There is separate
legislation for persons with
disabilities with regard to free edu-
cation as well.
What things have to be kept in mind by the
courts in child custody cases?
After the separation of a married couple, the
big question that arises is as to who should
retain custody of the minor child from the
marriage. The law in India gives importance
to the welfare of the child, his/her education
and the financial condition of the parents in
determining the question of custody of the
child. Generally, the parent who can take
better care of the child is given the custody.
The Guardian and Wards Act, 1890, is the
legislation which deals with the manner in
which custody cases are to be decided.
While deciding such cases, courts must
also ensure that the child can receive love
and affection from both parents even if
his/her custody is given to one parent.
There can be physical custody where one
parent is given the sole right to custody of
the child. There can also be joint custody,
where both parents have the custody of the
child on a rotational basis. If a parent has
legal custody, it means that the concerned
parent is entitled to take all decisions on
behalf of the child. But Hindu and Muslim
laws give more preference to mothers.
Welfare Most Important
in Child Custody Cases
—Compiled by Sankalan Pal
Right to Education is a Fundamental Right
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
Are we allowed to use loud speakers
and public address systems in public
places?
Under Rule 5 of the Noise Pollution
(Regulation and Control) Rules, 2000,
loudspeakers can be used in public
places only with the consent of the
concerned authority. Further, loudspe-
akers and public address systems can-
not be used between 10 pm and 6 am
except in closed premises like audito-
ria, banquet halls, conference rooms
and community halls. This is necess-
ary to reduce noise pollution and pre-
vent nuisance to other citizens. How-
ever, the state government may allow
use of loudspeakers from 10 pm to
midnight during cultural and religious
festivals. Beating of drums and blowing
of trumpets is also prohibited at night
as per a Supreme Court judgment.
Violation of these rules is punishable
under the Environment Protection Act.
UseofLoudspeakers
SubjecttoConditions
?
Where can you file caveat petitions?
Caveat petitions are filed as a precautionary
measure when you are expecting a case to be
filed in the near future and have certain legal
interest in it. So, through this petition, you can
get a decree from the court where you ensure
that you are given a notice and are heard
when such cases are filed. The caveat is valid
for a period of 90 days. Section 148A of the
Civil Procedure Code (CPC) gives a party the
right to file a caveat. Caveats may be filed in
both High Courts and the Supreme Court.
Caveat petitions are primarily filed in civil
cases but criminal matters may also entail the
need to file a caveat and such permission to
file a caveat varies from court to court.
Caveat Petitions Can be Filed Under CPC

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

Lead/ ICADR Ordinance
12 March 18, 2019
T midnight on March 2-3,
the centre issued an ordi-
nance called the New Delhi
International Arbitration
Centre Ordinance, 2019.
The Government of India
gazette notification said its purpose was
the creation of “an independent and
autonomous regime for institutionalised
arbitration and for the acquisition and
transfer of the undertakings of the In-
ternational Centre for Alternative Dis-
pute Resolution and to vest such under-
takings in the New Delhi International
Arbitration Centre (NDIAC) for the bet-
ter management of arbitration so as to
make it a hub for institutional arbitra-
tion and to declare the NDIAC to be an
institution of national importance….”
Lofty ideals? But retribution was
quick in coming as barely four days
later, in a dramatic turn of events, the
Delhi High Court imposed a stay on the
ordinance whose aim was to replace the
International Centre for Alternative
Dispute Resolution (ICADR), a premier
institution set up in the capital in 1995
under the Societies Act, with the centre-
controlled NDIAC.
Dr HR Bhardwaj, former Union law
minister and founder patron of the
ICADR, told India Legal: “There was no
valid ground for the government to issue
this ordinance. This is a grossly ill-
advised move and reeks of illegality as it
attempts to take over the properties and
assets of a registered society. The
ICADR has a 25-year-old history and its
members are some very distinguished
jurists….Even the chief justice of India is
involved with the institution in his
capacity as its chairperson. Ostensibly,
the move has been justified on the
ArushedordinancebroughtinbythecentretoreplacetheInternationalCentre
forAlternativeDisputeResolutionwiththeNewDelhiInternationalArbitration
CentrehasbeenstayedbytheDelhiHighCourt
By India Legal Bureau
A
Naked
Aggression
INDIA’S PRIDE
(Right) The 70th
meeting of the
ICADR’s governing
council held on
February 17, 2019;
(below) the ICADR
was set up in 1995
under the Societies
Registration Act
and had gained
credibility in the
field of alternative
dispute resolution

grounds that the ICADR was not per-
forming up to expectations. If that was
indeed the case, the government should
have used other less radical and adver-
sarial means to address the problem.”
Bhardwaj went on to say that as the
patron of the institution, he had sug-
gested to the government that a com-
mittee be constituted to look into the
issues plaguing its functioning, if any.
The ICADR was set up in 1995 under
the Societies Registration Act and is
considered a pioneer in the field of
alternative dispute resolution. It was
established to promote, popularise and
propagate alternative dispute resolution
methods to facilitate early resolution.
The society is an autonomous organisa-
tion working under the aegis of the
Supreme Court of India with its head-
quarters at New Delhi and regional cen-
tres at Hyderabad and Bengaluru. The
society has established a vast network in
international arbitration and has
received grants from various institu-
tions, including the World Bank.
A
highly placed legal luminary is of
the view that by bringing in the
ordinance, the centre has virtual-
ly forced its way into taking over the
institution. “The government has bull-
dozed its way to take over the centre. It
has confiscated the building and money,
and the employees are facing an uncer-
tain future.” He added that the ICADR
was established with the primary aim
of making it similar to top arbitration
centres that exist in London, Singapore
and other cities but with the govern-
ment taking it over, it will lose its
credibility.
This credibility was never under
question since its inception. Many
prominent figures from the legal frater-
nity and other fields have participated in
its general body and governing council
meetings. Being a society, the institution
was self-sustainable. The assets and
properties of the society were created
out of the subscription of its members,
rental income, while another source of
income was from organising training
programmes, seminars, conferences,
Photos: ICADR

etc; and there has been no contribution
from the government except the grant-
in-aid and a corpus of `3 crore and
grant of `27.72 crore given in 1995 at
the time of registration. ICADR’s chap-
ters in Telangana, Andhra Pradesh, and
Karnataka have received grants from the
respective state governments to the tune
of `17 crore.
I
n its organisational set-up, the soci-
ety has prominent figures from legal
and other fields in its general body
and governing council, like Attorney
General of India KK Venugopal, senior
advocate Fali S Nariman, senior advo-
cate, K Parasaran, senior advocate and
the former deputy chairman of the
Planning Commission, Montek Singh
Ahluwalia, and the like with Bhardwaj
as its patron and the chief justice of
India as its chairperson. The institution
from 1998-2019 has also organised
about 16 international conferences for
imparting knowledge/training in arbi-
tration, conciliation and mediation in all
major cities in the country. The confer-
ences have been attended and addressed
by eminent foreign dignitaries, especial-
ly from countries that are known global-
ly for arbitration. The society has
entered into several cooperation agree-
ments with many foreign organisations
covering the areas of mutual exchange
of information, mutual assistance in
conduct of proceedings and mutual
assistance in organising, training and
other activities.
A former law secretary, who did not
want to be named, told India Legal:
“Having the chief justice of the Supreme
Court as its chairman meant that the
Centre had some credibility, but that’s
now gone and the irony is the current
CJI is remaining silent on the issue.”
On its part, the government has
maintained that the institutional
changes were not something out of the
blue and had been in the pipeline for
nearly a year and a half. A source said
that as early as August 2017, the govern-
ment had announced that it would app-
roach Parliament for making necessary
amendments in the existing law aimed
at turning India into an international
arbitration hub.
Minister for Law and Justice Ravi
Shankar Prasad had then announced
that an autonomous body to be known
as the Arbitration Promotion Council of
India, having representatives from all
stakeholders, would be set up for grad-
ing arbitral institutions in India, and an
arbitration bench will be created to deal
with such commercial disputes. A com-
mittee had even been set up under re-
tired Supreme Court judge BN Srikrish-
na to suggest changes. “The changes in
the arbitration law proposed by the
committee are not in isolation but part
of the larger aim of ensuring good gov-
ernance,’’ the law minister had said
while releasing the report in 2017. “If
Singapore can become an international
hub, then why not India,” Prasad was
then quoted as saying. The Committee
had also suggested a revamp of the
International Centre for Alternative
Dispute Resolution (ICADR) working
under the aegis of the Ministry of Law
and Justice, Department of Legal
Affairs. It wanted the ICADR to be
14 March 18, 2019
TOP LEGAL BRAINS: The then CJI KG
Balakrishnan and Law Minister HR Bhardwaj,
among others, at an international conference
on alternative dispute resolution in New Delhi
in February 2007

declared an institution of national
importance and also takeover of the
institution by a statute. The Committee
was of the view that a revamped ICADR
had the potential be a globally competi-
tive institution, Prasad had stated then.
H
owever, the ICADR was not
convinced. With the ordinance
being issued late on March 2,
the options available with ICADR to
challenge it were limited. On March 6,
the ICADR knocked on the doors of the
Delhi High Court seeking an urgent
hearing against the ordinance, but failed
to get it. In the meantime, the centre
wrested control of its headquarters at
Vasant Kunj whose estimated value,
land and infrastructure included, is
around `500 crore. Besides taking pos-
session of the premises, it seized the
accounts of the ICADR and nearly `30
crore deposits of the institution were
frozen. “The ICADR staff was not
allowed to enter the premises. The
accounts have been frozen. The cheques
issued prior to issuance of the ordinance
have not been honoured. The doors have
been shut on us. This is blatant confisca-
tion of an institution,” said a source
speaking to India Legal.
On March 7, the ICADR matter was
squeezed into the supplementary cause
list in the High Court for a post-lunch
hearing. Senior advocate Dushyant
Dave, representing the ICADR, argued
that the enactment of the ordinance was
unconstitutional and the forceful occu-
pation of a premier institution whose
chairperson is the chief justice of India
does not send positive signals within the
legal fraternity. “What is the emergency
to bring an ordinance? What is the dif-
ference between the existing institution
and the one proposed by the centre?
Government is issuing tenders to fight
arbitration and simultaneously discour-
aging its own institution to attract glob-
al traffic on arbitration….There aren’t
any charges of financial impropriety on
the institution. In fact, government
could work with us and use our facility.
We seek protection from the honourable
court,” said Dave.
The ICADR has a total of 33 employ-
ees, who are bound to lose their jobs as
the ordinance does not consider over the
liabilities of the institution. “The gov-
ernment will take everything including
the furniture in the institution, and
leave behind a sheet of paper, the regis-
tration certificate of the society,” added
the source.
The centre’s counsel, defending the
ordinance, informed the Court that it
was issued on the satisfaction of the
President of India, and it is obvious that
the highest office would have seen merit
in the ordinance; though it is subjective,
and definitely not out of judicial
purview. “The government is acting as
per the recommendation of BM Sri-
IN COMMAND: Justice AK Sikri (centre) of
the Supreme Court, who retired recently, at
the 69th meeting of the ICADR’s governing
council on January 13, 2019
“Therewasnovalidgroundtoissuethis
ordinance.Itisanillegalandill-advised
moveasthecentreattemptstotakeover
propertiesandassetsoftheICADR.”
—DrHRBhardwaj,formerUnionlaw
ministerandfounderpatronoftheICADR

16 March 18, 2019
krishna report on improving arbitration.
The ordinance is in accordance with the
report. India’s ranking on the World
Bank’s Ease of Doing Business Report
has suffered due to poor performance in
arbitration. The prime minister has
assured the world on improving ease of
doing business and commerce in India.
Every day we are suffering, as we do not
fare well on the indices of ease of doing
business, and our arbitration is below
global standards…,” the centre’s counsel
pleaded before the court.
T
aking a sharp jibe at the centre’s
counsel, the Court said: “What is
the emergency in bringing the
Ordinance….you cannot take over insti-
tutions overnight….If you take over the
institution, how will they continue?”
The centre further argued that the
institution was funded by the govern-
ment and it had every right to take over
an institution that failed to deliver
results, and replace it with an efficient
set-up.
“It is an urgent situation; we have to
improve our credibility in the world on
ease of doing business and commerce in
the country. In this scenario, the
urgency has arrived. With the proposed
new institution via this ordinance, we
will have a healthy and vibrant mecha-
nism to address commercial issues,” sub-
mitted the centre’s counsel.
The Court junked the centre’s argu-
ment that the ICADR has merely sorted
out 55 arbitrations in a period of 24
years, and its record speaks volumes of
its failure as an institution. “We are con-
sidering the constitutional aspect of the
ordinance, and not the functional aspect
or performance of the institution since
its establishment….All of a sudden you
have come with an ordinance,” said
the Court.
The Court also probed the centre’s
counsel on the urgency involved in
bringing in an ordinance overnight
under the Constitution, and dismissed its
rhetoric that the ordinance was brought
post the satisfaction of the President.
Though the centre’s counsel tried extre-
mely hard to cut a bargain on the ordi-
nance, the Court remained steadfast.
In fact, justifying the ordinance, the
centre told the Court that after the bill
to replace the ICADR was passed by the
Lok Sabha, the institution knew that
the ordinance was on its way. “They
knew what is coming,” said the
centre’s counsel.
The statement perturbed the Court,
and the chief justice said that the gov-
ernment too had failed on many counts,
especially in appointing judicial officials
in district-level courts.
Finally, the Court said that it was
staying the ordinance aimed at
replacing the ICADR with a centre-con-
trolled institution.
The centre’s counsel seemed to be
shocked and double-checked with the
Court that it had indeed made a state-
ment staying the ordinance issued by
the President. The Court reiterated that
it had decided to stay the ordinance.
The centre’s counsel argued that it had
already taken over the property and
assets of the institution. The Court rep-
rimanded the centre’s counsel, saying
“we will help you, but not in this man-
ner”. “You (centre) utilise their facility…
.we will permit them (ICADR) to func-
tion from the same property, as they
were doing earlier,” said the Court.
For the moment, the bulldozer has
been stopped in its tracks.
—With inputs from Vrinda Agarwal
and Sumit Saxena
TOWERING AND ILLUSTRIOUS
ICDAR’s sprawling campus and its
foundation stone plaque
TheDelhiHighCourt,whilestayingthe
ordinance,slammedthecentrefortrying
to“takeoverinstitutionsovernight”.It
alsojunkedthecentre’sargumentthat
theICADRhadfailedasaninstitution.

Supreme Court/ Death Convict
18 March 18, 2019
OURTS adopting therapeutic
and reformative approaches
in administering punish-
ments are not alien to crimi-
nal courts in the country.
However, in the matter of the
death penalty, courts were more res-
trained and respected the mandate of
the legislature. The best they could do
was to limit its imposition to the “rarest
of rare cases” and leave it to the judg-
ment of individual judges to apply the
standards to determine such cases on
the lines set by the apex court. Despite
many attempts to get the death penalty
declared unconstitutional, the Supreme
Court felt the need of retaining it in the
statute book in the present circum-
stances. It was left to the Executive to
recommend mercy by the president in
appropriate cases. The discretion of the
president in this regard has also been
circumscribed through judicial review of
the Executive privilege to give pardon.
The law thus evolved over a period
of time got some twists and turns in the
hands of “anti-death penalty” and refor-
mist judges of the Supreme Court who
found ways and means to commute dea-
th sentences to life imprisonment. Such
an approach may appear alien to the
sentencing jurisprudence obtaining in
current times for “rarest of rare cases”.
One such instance was recently
reported in a decision rendered by
Justices AK Sikri, Abdul Nazeer and
MR Shah of the Supreme Court. The
media published the news with the
headline, “Murder convict’s poem saves
him from death sentence”, giving the
impression that writing poems while in
jail can save one from the gallows. The
fact of the matter was that along with
other facts and circumstances of the
case, the poem with a reformative
appeal persuaded the judges to decide
that his case was not in the rarest of
rare category.
The convict at the time of kidnap-
ping and murdering a minor child was
an adolescent. He spent 18 years in jail
awaiting the gallows and all these years,
conducted himself as a person who
repented his crime. He endeavoured to
be a civilised individual, continued his
studies from jail and completed his
graduation. He thus demonstrated to
the Court that he was not a professional
killer, was unlikely to repeat the crime if
given a chance to integrate himself in
society and was in no way a continuing
threat to society. To add to these facts,
his poem written in jail, though not with
the hope of commutation of the death
sentence, also strengthened the judicial
inference of reformative potential. It is
on the basis of this evidence that the
court concluded that it was not a fit case
Poetic Justice
Aconvicthadhisdeathsentencecommutedtolifeafterthe
judgessawhispoemsandcircumstancesandfeltitdidnotfit
the“rarestofrare”category
By Prof NR Madhava Menon
C Sixteen years after six men were con-
victed of rape and murder and
awarded life imprisonment, the
Supreme Court acquitted them after
finding loopholes in the prosecution
case. The judgment was delivered by a
bench of Justices AK Sikri, S Abdul
Nazeer and MR Shah who ordered
compensation of `5 lakh each to the six
persons, while slamming the Maha-
rashtra police and prosecution for
botching up the case. The Court also
directed the police to conduct further
investigation into the case.
The six men—Ankush Maruti
Shinde, Rajya Appa Shinde, Ambadas
Reprieveafter16years
Anthony Lawrence

for the death penalty under the “rarest
of rare” principle.
What is the message the decision
conveys in the matter of awarding the
death sentence? Firstly, the “rarest of
rare” principle remains the law of the
land and must continue to guide the
sentencing judge. Secondly, the purpose
of retaining the death penalty in the
statute book is not retribution in the
conventional sense. It is intended to
deter like-minded persons and prevent
commission of heinous crimes even
though its deterrent/preventive poten-
tial is a matter of doubt. Thirdly, refor-
mation serves social goals in criminalis-
ing conduct and restorative justice to
some extent gives relief to the victims as
well. Expiation used to be sufficient
punishment in ancient times. Coupled
with remorse and compensation to the
victim, restorative justice can reduce the
gravity of the offence. In fact, this is the
principle under which “plea bargaining”
is introduced in the Criminal Procedure
Code to let people regain their freedom
from long incarceration.
O
ne would have appreciated the
judgment more if the Court had
ascertained the views of the vic-
tim’s relatives before commuting the
sentence of death. One of the weakest
links of the present criminal justice sys-
tem is its near total neglect of the vic-
tim. Alternatively, the Court could have
heard the assessment of the case from
experts who could have given the extent
of reform on the part of the convict.
Anyways, the judgment, if circulated
among those awaiting death in jails
across the country, will certainly help
improve prison discipline and the con-
duct of convicts.
They will invent new ways of demon-
strating their reform potential to
strengthen their cases for being taken
out of the rarest of rare category.
—The author is a former Director of
the National Judicial Academy and is at
present Hony. Director of the Kerala Bar
Council MKN Academy for Continuing
Legal Education, Kochi
AWARDED CAPITAL PUNISHMENT
(From L to R) Yakub Memon, Mohammed
Afzal Guru, Mohammad Ajmal Amir Kasab
and Dhananjoy Chatterjee
March 5, 2019: The apex court
upheld the death penalty imposed on
a man for killing six relatives of his
wife, including two minors, in Punjab’s
Fatehgarh Sahib in 2012. The bench
of Justices AK Sikri, S Abdul Nazeer
and MR Shah termed the crime “rarest
of rare”. A sessions court in Fateh-
garh Sahib had sentenced Khushw-
inder Singh to death on March 15,
2013, and this was confirmed by the
Punjab and Haryana High Court on
September 20, 2013.
July 30, 2015: Yakub Memon, a
convict in the 1993 Mumbai serial
blasts case, was hanged in a jail in
Nagpur.
February 9, 2013: Mohammed Afzal
Guru, convicted in the 2001 Parliament
attack case, was hanged inside
Delhi’s Tihar Jail.
November 21, 2012: Mohammad
Ajmal Amir Kasab, a Pakistani terrorist,
was hanged in Pune’s Yerwada Jail for
taking part in the 2008 Mumbai terror-
ist attacks. He was the only attacker
captured alive by the police.
August 14, 2004: Dhananjoy
Chatterjee was hanged at Alipore
Central Jail in West Bengal on his
42nd birthday for the rape and murder
of a teenage girl.
—India Legal Team
Rarestofrarecases
Laxman Shinde, Raju Mhasu Shinde,
Bapu Appa Shinde and Suresh Shinde—
were convicted for the murder of five
members of a family and rape of one of
them at a village in Maharashtra’s Jalna
district on June 5, 2003. In June 2006, a
trial court sentenced all of them to death.
The Bombay High Court, while uphold-
ing the conviction and death penalty
awarded to three of them, altered the
sentence in respect of the other three to
life imprisonment. Later, in 2009, while
hearing an appeal against the Bombay
High Court decision, the Supreme Court
not only upheld the death penalty award-
ed to the three, but also awarded the
death penalty to the other three.
In the acquittal order, the Supreme
Court said there were several inconsis-
tencies in the police case which rested
on the testimony of the wife of one of the
murdered persons who was an eye-wit-
ness to the crime. The Court said that
though the wife had identified four per-
sons from an album of notorious crimi-
nals, this aspect was not probed by the
police. As a result, the real culprits man-
aged to escape the law, while the police
falsely implicated the six accused per-
sons. The Court took cognisance of the
fact that the accused hailed from
nomadic tribes and that all of them
(except one who was a juvenile at the
time of the crime) had lived in jail under
sub-human conditions for 16 years.
—India Legal Team

Acts & Bills/ Aadhaar Ordinance
20 March 18, 2019
HE ordinance promulgat-
ed by the government on
March 2, 2019, has once
again brought the focus
back on the use of
Aadhaar and a possible
challenge to it in the Supreme Court.
Aadhaar has become an “Instrument
of Identity” similar to the “Social
Security Number” and similar national
identity instruments prevailing in other
countries. Even the Supreme Court has
conceded that Aadhaar can play a signif-
icant role in efficient and transparent
governance, and more importantly, in
the prevention of corruption. However,
the use of Aadhaar is being repeatedly
challenged by privacy activists, alleging
that its widespread use could lead to
infringement of privacy—a fundamental
right of all citizens.
It would, therefore, not be surprising
Aadhaar Revisited
Thereisnoneedforanyimmediatejudicialchallengetotheordinancesinceitwillcomeupfor
automaticreconsiderationwithinsixmonths
By Na Vijayashanker
TABOVE BOARD?
A woman at an
Aadhaar
registration centre
in Howrah,
West Bengal
commons.wikimedia.org

if some privacy activists again knock at
the doors of the Supreme Court with a
plea to get the ordinance scrapped, per-
haps alleging that it is an attempt to
violate the principles of privacy laid out
in the Supreme Court judgment of
September 2018 on Aadhaar (KS Putta-
swamy vs Union of India case).
The Puttaswamy judgment raised
serious concerns about the use of
Aadhaar by private sector companies
which had been permitted under
Section 57 of the Aadhaar Act. The
majority judgment struck down that
part of Section 57. Consequently, Section
57 of the Aadhaar Act stood read down
with the following effect:
57. Act not to prevent use of
Aadhaar number for other purposes
under law.
Nothing contained in this Act shall
prevent the use of Aadhaar number for
establishing the identity of an individual
for any purpose, whether by the State or
any body corporate or person, pursuant
to any law, for the time being in force.
Provided that the use of Aadhaar num-
ber under this section shall be subject to
the procedure and obligations under
section 8 and Chapter VI.
It must be recognised that the
Puttaswamy judgment did not impose a
blanket ban on the use of Aadhaar,
either by the government or other enti-
ties. It only prohibits the use of Aadhaar
under any contract not pursuant to any
law. The Court therefore suggested that
a proper law should be passed to enable
the use of Aadhaar.
T
he citizens of the country are well
aware of the fact that Aadhaar is
an “Identity Infrastructure” creat-
ed by two successive governments at
enormous cost to the people of the
country. Therefore, it is illogical to
block the use of this infrastructure to
be harnessed fully for the benefit of
the citizens.
However, after the Puttaswamy judg-
ment, the private sector stopped using
Aadhaar as an identity management
tool since the widely used Aadhaar
authentication-based e-KYC system was
not part of the Aadhaar Act.
The e-KYC system used for Aadhaar
was part of the notified rules of the
Controller of Certifying Authorities for
e-Sign as an electronic signature under
Section 3A of the Information Techno-
logy Act, which may be considered as an
extension of a statutory base for its use
in that context. But KYC which was part
of many other regulations such as the
RBI guidelines was more of an adminis-
trative guideline or a best practice
adopted by the industry.
Hence, the government was under an
obligation to clarify the use of Aadhaar
by private sector companies by enacting
suitable legislation so that it became
part of Section 57 after its partial strik-
ing down by the Supreme Court.
Further, the Justice Srikrishna
Committee on Data Protection had rec-
ommended a full set of amendments to
the Aadhaar Act in an appendix to its
report. While the government had intro-
duced the Personal Data Protection Bill
as recommended by the Srikrishna
Committee, it had to introduce the
Aadhaar-related amendments recom-
mended by the committee as a separate
amendment bill.
The government was therefore corr-
ect in introducing the Aadhaar (Amend-
ment) Bill on January 2, 2019. Though
this Bill was passed by the Lok Sabha,
it could not be passed in the Rajya
Sabha during the current tenure and
Inabigrelieftotelecomcompanies,they
havebeenpermittedtouseAadhaarfor
identificationwithoptionsbeingmade
availabletothepublictousealternative
modesofidentityverification.
NO QUICK RESOLUTION
The Aadhaar (Amendment) Bill will have to
wait until the next Parliament meets
UNI

22 March 18, 2019
hence lapsed. In order to ensure that the
private sector is not inconvenienced due
to the lack of a lawful process of using
Aadhaar, the government came up with
the Aadhaar ordinance.
Hence, sufficient justification can be
provided for the need for the ordinance
and its promulgation by the government
at this point of time.
Key Provisions of the Ordinance
Some of the key provisions of the
ordinance which we can take note of are
as follows:
The ordinance completely removes
Section 57 of the Aadhaar Act though
only a part of it had been struck down
by the Supreme Court. The other
changes are meant to offset the adverse
effect of the removal of Section 57.
This was an unwarranted overreac-
tion by the government.
A distinction is sought to be made bet-
ween the use of Aadhaar for “Authenti-
cation” and “Verification” and the con-
cepts of “Offline Verification” and “Vol-
untary Permission to use Aadhaar based
on an Informed Consent”. However, the
distinction made between “Authenti-
cation” and “Verification” is very fragile
and may require re-consideration.
“Offline Verification” is defined as a
“process of verifying the identity of the
Aadhaar number holder without auth-
entication, through such offline modes
as may be specified by regulations”
[Proposed amended section 2(pa)]. On
the other hand, “Authentication” is def-
ined as “a process by which the Aadhaar
number along with demographic infor-
mation or biometric information of an
individual is submitted to the Central
Identities Data Repository for its verifi-
cation and such Repository verifies the
correctness, or the lack thereof, on the
basis of information available with it”
[current section 2(c)]. The distinction
made out appears to be merely a play of
words and would be difficult to justify.
A fairly large civil penalty of up to `1
crore has been introduced for each vio-
lation in case any entity in the Aadhaar
ecosystem fails to comply with the pro-
visions of the ordinance.
The imposition of the penalty is sup-
ported by the proposal for appointment
of one of the officers of the UIDAI as an
adjudicator and TDSAT as the appellate
authority. After a matter is decided by
the TDSAT, further appeals would lie
directly before the Supreme Court, thus
completely eliminating the role of the
high courts.
In case of Cyber Appeals, further
appeals from TDSAT go to the respec-
tive state high courts and a similar pro-
vision could have been made in the
Aadhaar Act also since many of the
members of the Aadhaar ecosystem
could be small entities across the coun-
try, and a TDSAT with a presence only
in Delhi without sittings and benches
elsewhere would create a huge financial
burden on the litigants.
This provision has been made to
make the work of UIDAI easy at the
cost of inconveniencing the litigants.
The criminal penalty prescribed under
Sections 38 and 39 of the Act has been
enhanced from imprisonment of 3 years
to 10 years and the imprisonment term
under other sections has also been
enhanced, thus making the law more
stringent.
This should please the privacy
activists.
In a consequential amendment to the
Indian Telegraph Act, telecom compa-
nies have been permitted to use
Aadhaar for identification with options
being made available to the public to
use alternative modes of identity verifi-
cation.
This provision comes as a big relief
to telecom operators.
In a consequential amendment to the
Prevention of Money Laundering Act,
2002 (PMLA 2002), the use of Aadhaar
has been permitted for banking compa-
nies while others may use Offline Veri-
fication and other alternatives.
The Fintech industry is not happy
with their exclusion. Perhaps those Fin-
tech companies which are not “Banking
Companies” but are registered in some
regulatory category with RBI or SEBI
could be provided the use of Aadhaar.
The ordinance includes “Virtual
Identity” also as an “Aadhaar number”
[Proposed amended section 2(a)].
This has defeated the very purpose of
introduction of the Virtual Aadhaar ID,
and the government has missed an
opportunity to declare it as a derivative
service which does not violate the pri-
vacy of the Aadhaar holder particularly
when it is used without the use of
biometrics.
In summary, it can be stated that the
“Ordinance” was perhaps justified but
some of the provisions of the ordinance
must be revisited when the Bill is finally
taken up for discussion when the next
Parliament meets.
It can also be stated that there is no
need for any immediate judicial chal-
lenge to the ordinance since its life span
is short and it will come up for auto-
matic reconsideration within the next
six months.
—The writer is a cyber law and
techno-legal information security
consultant based in Bengaluru
Privacyactivistshavebeenchallenging
theuseofAadhaarasanattemptto
violatethefundamentalrightto
privacywhichwasupheldbytheSCinthe
JusticeKSPuttaswamy(above) case.
Acts & Bills/ Aadhaar Ordinance

Courts/ Abandoned Vehicles
PIL was filed in the Delhi
High Court seeking the
involvement of different
agencies of NCT-Delhi to
solve the problem of un-
precedented growth of vehicles. It was
filed by Umesh Sharma, an advocate of
the High Court.
The petitioner prayed for the cancel-
lation of registration of all vehicles
which were incapable of being used and
have been abandoned and parked in va-
rious public spaces. He said state agen-
cies should be directed to remove all
such vehicles and make adequate arr-
angements for free movement of pedes-
trians in various areas of Delhi.
The petitioner highlighted the prob-
lem of rapid urbanisation in Delhi
which has led to a large number of vehi-
cles being registered. This, in turn, had
resulted in the shrinking of valuable
space. Moreover, as many roads were
being constructed, this had led to acute
shortage of parking space. The petition-
er further said that the ratio of available
parking space and the number of vehi-
cles was a complete mismatch, due to
which people had no choice but to park
their vehicles either on roads or in open
spaces, further blocking the movement
of traffic.
Another problem was of old vehicles
which were abandoned and left on
roads as scrap, posing a hazard to the
safety and security of citizens, and
obstructing traffic flow. Relying on
Section 55 of the Motor Vehicles Act,
1988, the petition said that this Section
was not being complied with and not a
single vehicle was reported as perma-
nently incapable of being used on roads.
The registering authority was simply sit-
ting idle instead of taking action.
Section 55, incidentally, refers to the
cancellation of registration and says:
“(1) If a motor vehicle has been des-
troyed or has been rendered permanent-
ly incapable of use, the owner shall,
within fourteen days or as soon as may
be, report the fact to the registering
authority within whose jurisdiction he
has the residence or place of business
where the vehicle is normally kept, as
the case may be, and shall forward to
the authority the certificate of registra-
tion of the vehicle.
“(2) The registering authority shall, if it
is the original registering authority, can-
cel the registration and the certificate
of registration, or, if it is not, shall for-
ward the report and the certificate of
registration to the original registering
authority and that authority shall cancel
the registration.”
On November 15, 2018, the High
Court had directed all the respondents
to file their status report with regard to
the action taken and any further action
they proposed to take.
On March 4, 2019, the North Delhi
Municipal Corporation filed an affidavit
stating that 25 abandoned/long-standing
parking vehicles were being removed
from Shivaji Stadium and sent to an
NDMC godown in Udyan Marg. Si-
milarly, 16 abandoned/long-standing
vehicles were removed from the parking
lots of Palika Bazaar. It also said that
there were three vehicles parked in the
Khan Market parking lot and similar
action would be taken after verification.
—Shaheen Parween
Free Up Spaces
Amuch-neededPILwasfiledintheDelhiHighCourtasking
fortheirremovalfrompublicspacesinthecapital
Thepetitionsoughtdirectionstovarious
stateagenciestoremoveallabandoned
vehiclesandmakeadequate
arrangementsforfreemovementof
pedestriansinvariousareasofDelhi.
DAILY NUISANCE
Abandoned vehicles not only obstruct free
flow of traffic but are also a safety hazard
A
facebook.com/Neglectedindelhi

Column/ Jamaat-e-Islami Jammu and Kashmir Pushp Saraf
24 March 18, 2019
ARLY in 2000 when mili-
tancy continued to be at its
peak in the Valley, Ghulam
Mohammad Bhat, the then
Ameer (chief) of the Jam-
aat-e-Islami Jammu and
Kashmir (or JeI), wrote a letter to me
about an article I wrote where I referred
to his organisation as a militant body.
He wrote: “Jamaat has never been a mil-
itant body and all the accusations
against it are baseless and the charges
levelled unfounded....The Jamaat
believes in Islam which is a message of
love and universal brotherhood.” He
spelt out JeI’s political stance: “About
the Kashmir dispute, we have made it
amply clear on various occasions thro-
ugh interviews and press statements
that the solution of this complicated
issue through peaceful means is a must
for the people of this sub-continent...the
issue should be amicably settled.”
A few years earlier, another organi-
sation, the JeI Hind, had sent a com-
munication in the context of another
observation made by me in an English
daily, where it insisted that the expres-
sions “Hind” and “Jammu and
Kashmir” should be used to underline a
distinction—though it and the JeI
shared the same name, they were sepa-
rate organisations with entirely differ-
ent ideologies.
Indeed, the JeI is independent of JeI
Hind and is actually considered close to
Needless Crackdown?
ThedecisiontobanthisoutfitundertheUnlawfulActivities(Prevention)Actforfiveyearsis
surprisingasithasneverbeenareckonableforceandlargelypursuesapolitico-religiousgoal
E
RIGHT PERSPECTIVE
Ghulam Mohammad Bhat
(centre), the chief of the JeI had
clarified way back in 2000 that it
was not a militant body
risingkashmir.com

JeI Pakistan in theory and practice. Ap-
art from undertaking social and reli-
gious activities, it has been active in the
political spectrum as a supporter of the
right to self-determination for the peo-
ple of J&K to determine their future. It
has a loyal albeit not large cadre and has
taken part in elections, winning a maxi-
mum of five assembly seats in 1972. It
used the mainstream political route to
reiterate its own stance instead of being
amenable to the status quo or the nati-
onal will as reflected in Parliament’s res-
olution on February 22, 1994, that J&K
is an “integral part” of India and “Pakis-
tan must vacate the areas of the Indian
State of Jammu and Kashmir, which
they have occupied through aggression”.
The JeI has never been a reckonable
political force and its electoral perform-
ance in 1972 could be attributed to the
circumstances prevailing at that time.
Sheikh Abdullah and the National
Conference, strongly backing accession
to the Indian Union and secularism and
opposed to the Jamaat’s fundamentalist
beliefs, were to return to the main-
stream in 1975. If the JeI evoked much
awe in the early 1990s, it was because of
its open association with the Hizbul
Mujahideen (HM), which was initially a
homespun armed militant outfit. HM
was called its “sword arm” and its supre-
mo, based in Muzaffarabad (capital of
“Azad” Kashmir), locally known as
Moulvi Yusuf Shah alias Syed Salah-
uddin, has been a senior JeI functionary.
B
hat’s attempt in the above-men-
tioned letter to steer clear of his
organisation’s terror links was
feeble, but consistent with his own
moderate thinking. He tried to pull the
JeI back from its extremist approach
and confine it to peacefully pursuing its
politico-religious goal. As a result, there
were a series of developments and a
parting of political ways. Bhat tried to
put the JeI on a course different from
veteran Syed Ali Shah Geelani, the most
popular face of the organisation, who
had called the shots for too long. The
JeI and Geelani gave a respectable
veneer to their differences by agreeing
to disagree without breaking the
umbilical cord.
For Geelani, it was Kashmir first
without compromising his Islamic phi-
losophy. He gave up the right to hold a
post in his parent organisation by float-
ing his own political outfit, Tehreek-e-
Hurriyat. For the Jamaat, it has since
been religion first. It says no to violence.
Nonagenarian Geelani has personally
avoided use of violence, but is evidently
not averse to others pursuing it for the
Kashmir cause as he sees it. He makes it
a point to attend, if allowed to travel out
of his house arrest, cremations even of
foreign mercenaries killed in encounters
with the security forces. His declared
stand is that he stands for the right to
self-determination of the people of J&K
to decide their future and he will accept
the verdict of plebiscite, although his
vote will be for Pakistan.
With this background, many obser-
vers are surprised by the timing of the
centre’s decision on February 28 to ban
the JeI—perceived to be “moderate” at
this moment—by declaring it an “unlaw-
ful association” under the Unlawful
Activities (Prevention) Act for a period
of five years. The JeI has been charged,
among other things, with being in close
touch with militant outfits, supporting
extremism, militancy and claims for
secession of a part of Indian territory
from the Union.
The undisguised official view is that
in the absence of the ban, there will be
“escalation in its subversive activities,
including attempt to carve out an Isla-
mic State out of the territory of Union of
India by destabilising the government
established by law”.
Even the JeI’s biggest ideological
opponent, the National Conference, has
been taken aback (JeI could never sig-
nificantly make its presence felt as long
as the formidable Sheikh Abdullah led
the NC). NC vice-president and former
chief minister Omar Abdullah has re-
marked: “In the battle of ideas &
TheJeIhasbeencharged,amongother
things,withbeinginclosetouchwith
militantoutfits,supportingextremism,
militancyandclaimsforsecessionofa
partofIndianterritoryfromtheUnion.
INEXPLICABLE ACTION
The recent crackdown on the Jei is not the
first one and may not have the desired effect
UNI

Column/ Jamaat-e-Islami Jammu and Kashmir/ Pushp Saraf
26 March 18, 2019
ideologies we have always opposed the
Jamaat in the political space. The recent
ban and crackdown against their leader-
ship, members, schools & properties will
serve no purpose except to drive their
activities underground....In spite of
these differences, I cannot support the
recent crackdown against them...The
move will yield nothing other than
glamorising dissent.”
W
ith the exception of the BJP
and the Congress, almost all
mainstream political parties
and separatist organisations, including
the Joint Resistance Leadership com-
prising Geelani, Mirwaiz Moulvi Farooq
and Yasin Malik, are unanimous in their
opposition to the ban. People’s Demo-
cratic Party leader and former chief
minister Mehbooba Mufti has warned
that the ban could have “dangerous con-
sequences” as it reeks of “political av-
enge”, there being “currently an atmos-
phere of revenge against Kashmiris”. She
said: “Democracy is a battle of ideas.
The crackdown, followed by the banning
of Jamaat Islami, is condemnable and
another example of highhandedness and
muscular approach of the GoI
(Government of India) to deal with the
political issue of J&K.” She was a part-
ner in power with the BJP till recently.
Another ally of the BJP and People’s
Conference (PC) Chairman Sajjad Lone
has echoed similar sentiments: “Why
has Jamaat been banned. Jamaat is a
social, political and religious organisa-
tion. In a vibrant democracy, ideas have
to be fought not banned. This organisa-
tion has given us illustrious leaders and
legislators. How can they be banned? I
strongly pitch for revocation of the ban.”
In any case, the government’s own
strike appears half-hearted. Hundreds
of JeI leaders and workers were arrested
even before the ban was declared. Many
were picked up later, too. Early on con-
fusion prevailed that along with the
assets of the organisation, its education-
al institutions and places of worship
were also being seized. As it came under
fire for depriving children of education
and worshippers of prayers, the gover-
nor’s administration took three days to
clarify that schools, mosques and
orphanages had been kept outside the
scope of the seizures and sealing.
Dispassionate observers feel that the
government appears to have over-esti-
mated the influence of the JeI.
The last ban on the JeI, on April 16,
1990, by Governor Jagmohan, was done
under more challenging circumstances.
Militancy had rocked J&K and the
country and the link between the JeI
and the HM was too transparent to be
ignored. The Jammu-Kashmir Libera-
tion Front in whose name all this began
in 1988 was being pushed into the back-
ground. The Falah-i-Aam Trust of the
organisation, which ran schools, was
also declared unlawful and all its educa-
tional institutions were shut down and
students transferred to government-run
institutions. The ban lasted five years,
but this did not prevent the JeI from
being a key player in the formation and
growth of the Hurriyat Conference, a
conglomeration of secessionist outfits,
formed in 1993. It recovered rather fast
to rebuild its structure, much like after
it was first banned during the Emer-
gency. In the post-Emergency period,
especially after the death of Sheikh
Abdullah, it became more vocal and was
a major constituent of the Muslim Uni-
ted Front that fought the 1987 assembly
elections and became a forerunner of
the Hurriyat Conference.
Would the ban have the desired
effect now that it has been imposed for
the third time?
—The writer is Editor of
Border Affairs, a quarterly
journal on India’s border states
and neighbouring countries
GhulamMohammadBhattriedtoputthe
JeIonacoursedifferentfromveteran
SyedAliShahGeelani(above),themost
popularfaceoftheorganisation.
PDPleaderandformerJ&Kchiefminister
MehboobaMuftihaswarnedthattheban
couldhave“dangerousconsequences”
asitreeksof“politicalavenge”.
TheJeI’sbiggestideologicalopponent,
theNationalConference,hasbeentaken
abackbytheban.Vice-presidentOmar
Abdullahhassaiditwillservenopurpose.

My Space/ ICMR-Pfizer Collaboration Dr KK Aggarwal
28 March 18, 2019
ECENTLY, there was a lot
of furore over news that
the Indian Council for
Medical Research (ICMR)
was collaborating with
Pfizer, a drug multination-
al company that sells antibiotics, for its
Anti-Microbial Resistance (AMR) proj-
ect. There were charges of conflict of
interest (CoI) in this “public-private
partnership” (PPP) as Pfizer had provid-
ed an initial grant of `7 crore to set up a
centre in Delhi to combat anti-microbial
resistance and to enhance the surveil-
lance programme for this malaise.
As per officials of the ICMR, Pfizer
offered its Corporate Social Responsi-
bility (CSR) funds to it and there were
no strings attached and no CoI. Those
criticising this collaboration advocate
that industry support to AMR activities,
if any, should be in the form of unres-
tricted educational grant with multiple
grants to a common pool. They assert
that the WHO document pertaining to
PPPs states: “Pharmaceutical companies
would have to be willing to contribute
collectively, for example, through their
industry associations.” They also say that
to eliminate or at least reduce CoI, no
single company should be selected as a
partner to a specific educational or sur-
veillance activity.
Before deciding whether this collabo-
ration amounts to CoI or not, let’s first
understand the meaning of “conflict of
interest” and “corporate social responsi-
bility”. A conflict of interest is a situation
in which a person/organisation has
competing interests or loyalties. It is a
situation in which an individual/organi-
sation is involved in multiple interests,
financial or otherwise, and serving one
interest could involve working against
another. Here, the personal interest of
an individual/organisation might adver-
sely affect a duty owed to make deci-
sions for the benefit of a third party. A
conflict of interest exists if the circum-
stances are reasonably believed (on the
basis of past experience and objective
evidence) to create a risk that a decision
may be unduly influenced by secondary
interests, and not on whether a particu-
lar individual is actually influenced by a
secondary interest.
The easiest way to explain the con-
cept of CoI is by using some examples:
When a public official’s personal
interests conflict with his professional
position.
When a person has a position of
authority in one organisation that con-
flicts with his interests in another
organisation.
When a person has conflicting
responsibilities.
There are different types of activities
that can create a possible conflict of
interest. These include: Nepotism where
favours are given to relatives and close
friends, often by hiring them; self-deal-
ing where someone in a position of
responsibility in an organisation has
outside conflicting interests and acts in
their interests rather than the interest of
A Conflict of Interest?
DoestheCSRactivityofthepharmagiantwhichisindependentofitscommercialinterestsandwherea
grantof`7crorewasgiventoICMRtosetupadiseasecentrecompromisethecollaboration?
R
Anthony Lawrence

his organisation. However, these activi-
ties do not involve wrongdoing or any
criminal activity. For example, a busi-
ness executive hiring her daughter
might not be CoI unless the latter is
given preferential treatment or more
pay. If the executive isn’t in a position to
give favours, there’s no CoI.
C
oming to CSR, the Companies
Act, 2013, makes it mandatory
for companies having a net worth
of `500 crore or more or a turnover of
`1,000 crore or more to constitute a
CSR Committee. This Committee is
entrusted with the work of undertaking
activities known as CSR activities. It is
mandatory for the company to spend, in
every financial year, at least two percent
of the average net profits made during
the three preceding years in pursuance
of its CSR policy. Also, it is mandatory
for the company to give preference to
the local area around where it operates
for spending this CSR amount.
Activities which may be included by
companies in their CSR policies are
mentioned in Schedule VII of the Com-
panies Act. One of the provisions of Sec-
tion 135 of the Act is that if the compa-
ny fails to spend its CSR amount, the
Board shall in its report specify the rea-
sons for it. Activities which may be
included by companies in their CSR
policies are mentioned in Schedule VII
of the Companies Act. These include:
eradicating extreme hunger and pover-
ty; promotion of education; promoting
gender equality and empowering wo-
men; reducing child mortality and im-
proving maternal health; combating the
human immunodeficiency virus,
acquired immune deficiency syndrome,
malaria and other diseases; ensuring
environmental sustainability; employ-
ment enhancing vocational skills; social
business projects; contribution to the
Prime Minister's National Relief Fund
or any other fund set up by the central
or state governments for socio-economic
development and relief and funds for
the welfare of the Scheduled Castes,
Scheduled Tribes, other backward class-
es, minorities and women, etc.
In a circular on June 18, 2014, the
Ministry of Corporate Affairs had
clarified that while activities undertak-
en in pursuance of the CSR policy must
be relatable to Schedule VII of the
Companies Act, 2013, the entries must
be interpreted liberally so as to capture
the essence of the subjects enumerated
in the said Schedule. The items enlisted
in this Schedule are broad-based and
intended to cover a wide range of activi-
ties. Further, the ministry clarified in a
circular that enabling access to or im-
proving the delivery of public health
systems should be considered under the
head “preventive healthcare” or “mea-
sures for reducing inequalities faced by
socially and economically backward
groups”.
In this context, the funding of the
AMR project of ICMR by Pfizer falls
under Clause (v) of Schedule VII of the
Companies Act. The said CSR activity
cannot be CoI as a CSR project of any
company is independent of its commer-
cial interests. There is an independent
committee in a company which assesses
any CoI by it.
CoI should be disclosed by anyone in
a company who is attending a particu-
lar meeting and he should affirm that
his decision will not be influenced and
will be independent of the other party.
Otherwise no doctor should become the
health minister; no lawyer, the law min-
ister and no industrialist, the finance
minister.
Conflict of interest has to be seen
without a blinkered vision and in the
spirit of the guidelines in this regard.
—Dr KK Aggarwal is President,
Heart Care Foundation of India, and
President-elect, Confederation of Medical
Associations of Asia and Oceania
Though Schedule VII allows CSR
activities to be aligned with govern-
ment-run schemes, it has often
moved beyond that. A collaboration
between the two for social good
would mean government poli-
cies/schemes develop an ally in the
private sector. This is a win-win sit-
uation for both parties.
Some examples:
In 2017, Nestle part-
nered with the Department
of Medical and Health, Government of
Rajasthan, to offer access to clean
drinking water at two public health cen-
tres. It did so through its NGO partner,
Enable Health Society, as part of the
Adarsh Public Health Center Yojna. The
company also constructed 430 sanita-
tion facilities in government schools
across 11 states, which has benefitted
more than 1,50,000 girl students.
In 2016, Sun Pharma
signed a tri-party agree-
ment between ICMR, MP and Founda-
tion for Disease Elimination and Control
of India (its CSR arm) to launch a
malaria-free India project in Mandla dis-
trict of MP. The goal was to eliminate
malaria from 1,233 villages and use the
lessons learnt for the rest of the country.
In 15 months, it was observed that there
was a reduction in malaria cases by
over 80 percent.
In 2015, ITC entered into
partnerships with several state
governments and NABARD to
undertake watershed development proj-
ects. These targeted over 1,58,000
hectares in some of India’s most
drought-prone regions.
In 2012, Coca-Cola star-
ted the “Support My
School” campaign in 1,000 government
schools all over India. It aimed to pro-
vide them with adequate sanitation and
basic amenities like toilets and other
facilities, especially for the girl child. So
far, 3,72,959 students (1,69,973 boys
and 2,02,946 girls) have benefited.
OtherCSRpartnerships

The killing is believed to be the out-
come of simmering political and busi-
ness rivalry between the two, with both
facing allegations of rape and blackmail.
Bhanushali had to quit his post because
of the charge though it was withdrawn
after a court-ratified settlement.
The case is also proof of how grass-
roots politics is impacted when a long-
term political rival is inducted into a
cadre-based party, creating clashes with
grievous consequences. The pursuit of a
Congress-mukt Bharat leading to a
Congress-yukt BJP has its perils.
Bhanushali, a former MLA, was shot
dead in his sleep on January 7 while tra-
velling in a train from Bhuj to Ahmeda-
bad. He was killed by two masked men
who then detrained. Examination of two
used and three live cartridges from the
Crime/ Murder of Gujarat BJP Leader
30 March 18, 2019
OLD power play can leave a
deathly stink. Sizzling pas-
sion, putrid politics, hateful
rivalry and morbid money
power in the borderlands of
Kutch have created a vola-
tile mix that is expected to impact the
politics of Gujarat. A recent case that
hogged the headlines was of former
vice-president of Gujarat BJP Jayanti
Bhanushali being shot dead and a red
corner notice to be issued soon for his
rival, former BJP legislator Chhabil
Patel, who is suspected of being involved
in the murder along with others. A court
in Bhachau, Kutch, has already issued
an arrest warrant for him. Other politi-
cians too are nervous following “leaks”
that recordings of their amorous adven-
tures are with the absconding culprits.
spot indicated the use of a country-
made pistol. A Special Investigation
Team (SIT) was constituted post-haste
by DGP Shivanand Jha to crack the
case. According to Ajay Tomar, addition-
al DGP, CID, Bhanushali’s killing was a
political murder, allegedly mastermind-
ed by Patel and a woman, Manisha Gos-
wami, who is absconding.
Forty days after the murder, Ashish
Bhatia, DGP, CID, announced the arrest
of the two alleged killers, identified as
Shashikant Kamble and Ashraf Anwar
Sheikh. They were nabbed from a gov-
ernment tourist guest house at Saput-
ara, bordering Maharashtra, according
to the top cop. He said they were given a
`30-lakh contract by Patel to liquidate
Bhanushali. The police claimed that two
7.65 mm caliber pistols, the murder
AnarrestwarranthasbeenissuedbyacourtinBhachau,Kutch,forformerBJPlegislatorChhabilPatel
forallegedinvolvementinthemurderofJayantiBhanushali,formervice-presidentofGujaratBJP
By RK Misra in Gandhinagar
C
VIOLENT END
Former BJP leader
Jayanti Bhanushali
(second from left)
who was murdered;
(inset) Manisha
Goswami, who is
allegedly involved,
is absconding
Fatal Political Rivalry
Facebook

weapons, were recovered from a river-
bed near Nashik.
But some troubling contradictions
emerge. Initial forensic examinations
showed the use of a single country-made
weapon. The police then said that three
pistols from UP were purchased for
`1.30 lakh, with two being used for the
crime and the third being given to one
Vishal Kamble who was lodged in
Yerwada jail, Pune. Vishal, the police
says, introduced the other two to Patel,
and they stayed at his farm in Bhuj. The
police then said they had gone off to
Mumbai, Pune, Prayagraj, Vaishnodevi,
back to Prayagraj and then Saputara
where they were nabbed. But there was
no plausible explanation for this.
The SIT reconstruct of the crime
would have one believe it was the handi-
work of hardened killers, including for-
mer members of Chhota Rajan’s gang.
Bhatia is on record stating that Shashi-
kant was involved in two murders else-
where (but was acquitted in both) and
Sheikh was involved in four cases. How-
ever, the Pune police says they are petty
criminals with little or no history of
murder. But then, how did Patel, an
experienced politician, hand over such
an important assignment to veritable
greenhorns?
Bhanushali was a school drop-out
who clawed his way up the BJP by sheer
hard work. He won his first Vidhan
Sabha election from Abdasa constituen-
cy of Kutch in 2007. He was also a cot-
ton trader and later, dabbled in real est-
ate in Ahmedabad. Patel, a law gradu-
ate, was with the Congress and shot into
the limelight when he defeated former
chief minister Suresh Mehta of the BJP
in Mandvi constituency of Kutch in
2002. The victory of a Congressman
acquired political importance as it came
just after the Godhra train carnage and
communal riots that created a pro-BJP
wave and brought Narendra Modi back
to power as chief minister.
P
atel and Bhanushali were pitted
against each other in the 2012
assembly polls from Abdasa. Bha-
nushali’s defeat sowed the seeds of an
all-consuming rivalry. Patel then switch-
ed over to the BJP in the run-up to the
2014 general poll and Bhanushali was
eased out as president of the BJP’s
Kutch unit. With Patel getting a party
ticket in 2017, the rivalry got worse.
However, the party made Bhanushali
vice-president of the state unit. Patel,
meanwhile, lost in 2017 to a Congress
candidate.
In July 2018, Bhanushali was sucked
into a sex scandal when a 21-year-old
charged him with rape on various occa-
sions on the lure of getting her admis-
sion into a design institute and a job. A
complaint to the Surat police commis-
sioner stated that the act had been fil-
med to blackmail her. Bhanushali res-
igned soon after. He later came before
the Gujarat High Court seeking quash-
ing of the complaint, stating that it had
been concocted by one Manisha
Goswami who had first targeted a rela-
tive, Sunil Bhanushali, and tried to
extort `10 crore from him. Sunil appro-
ached the police and got Goswami arre-
sted. However, she got judicial relief and
came out of jail. Out of revenge, she
asked another of her gang members, the
21-year-old, to target him. However, on
August 3, this woman appeared before
the High Court and stated that she had
no objection to the FIR being with-
drawn. The rape case was later closed.
Interestingly, Goswami is now wanted
for involvement in the murder.
Patel, too, was arrested by the Delhi
police last year for sexually assaulting a
woman whom he had promised a job,
but as he had secured anticipatory bail,
he was released. Patel, who is out of
India, has denied involvement in the
murder. A warrant for his arrest was
issued by a court in Bhachau, Kutch on
February 12 and a red corner notice will
soon be issued for him.
All’s not well that ends well.
T
here was another case of sex and
sleaze like the Bhanushali-Patel
one which came into prominence
in 2017, the Naliya gangrape of Kutch.
On January 25, 2017, a 34-year-old
woman from Mumbai filed a complaint
in Naliya police station in Kutch claiming
she was the victim of a sex racket that
involved over 60 people, including politi-
cians in Kutch. She also alluded to
exploitation of minor girls.
An SIT was constituted and 10 or
more people, including some local BJP
leaders, were suspended from the party
and arrested. As protests grew, the gov-
ernment appointed a one-man inquiry
commission headed by Justice AL
Dave, a former judge of the Gujarat HC,
in March 2017. It held its first sitting on
March 19, 2018. The commission sub-
mitted its report on December 12, 2018,
to the state government, which decided
not to make it public.
While indications of various pecca-
dilloes of other politicians reportedly
emerged from Bhanushali’s mobile,
sources say that the absconding Man-
isha Goswami too has in her possess-
ion proof of sexual capers of some pro-
minent politicians. Voluble SIT officers
probing the Bhanushali murder clam up
when questioned about Goswami, only
stating that she is wanted in the
Bhanushali murder and is absconding.
Moresexandsleaze
CORNERED IN THE CASE
Former BJP legislator Chhabil Patel

of one year.
All details of tree plantation and
transplantation projects will be main-
tained on the website of the Department
of Forests & Wildlife (DFW). In addi-
tion, a dedicated tree transplantation
cell will be set up in the DFW to prepare
Environment/ Delhi’s Draft Policy/ Tree Transplantation
32 March 18, 2019
HE draft policy of the
Government of the Na-
tional Capital Territory of
Delhi (GNCTD) for the
preservation and trans-
plantation of trees affected
by any project is a progressive and wel-
come step. For the first time in India, a
government has proactively decided to
end the practice of mindlessly felling
trees for the construction of buildings,
roads or other “developmental” projects.
The draft policy of February 27,
2019, for which suggestions and objec-
tions have been invited, is conceptually
simple and breathtaking. To begin with,
all trees need to be preserved and pro-
tected at the site itself. If this is not pos-
sible, 80 percent of the indigenous trees
at the site need to be scientifically trans-
planted with the help of an authorised
agency. The project proponent is also
required to ensure that 80 percent of
the transplanted trees survive for at
least a year. In addition, 10 new trees
should be planted for every tree that is
felled or transplanted. And to ensure the
survival of the new saplings, the draft
policy stipulates that their height should
not be less than eight feet. These sap-
lings will also have to be geo-tagged.
The draft policy also contemplates
the creation of a monitoring mechanism
to ensure the survival of these trees.
Local committees comprising citizen
groups, professionals and experts will be
constituted at the ward or assembly
level. These committees will be required
to carry out regular monitoring of all
projects involving the planting or trans-
plantation of more than 100 trees in
their local areas. They will also have to
certify the tree survival rate at the end
and regularly update the technical speci-
fications for tree transplantation, to
carry out empanelment of technical
agencies, to define the benchmark tree
survival rate, to carry out training and
capacity building and to flag technical
agencies who are unable to achieve the
T
DELICATE JOB: Transplantation of trees needs expertise, especially root ball excavation
Turn Over a New Leaf
Forthefirsttime,apolicyhassuggestedsimplesolutionsforprotectingorscientificallytransplanting
trees,therebyincreasingthegreencoverinthecapital
By Debi Goenka
justdial.com

benchmark tree survival rate.
What is also welcome is that exotic
and invasive species such as subabul,
eucalyptus and prosopis have been
excluded from this policy and do not
need to be protected or transplanted.
The GNCTD is also required to update
this negative list from time to time.
Given the fact that Delhi is amongst
the most polluted cities in the world, it
makes a great deal of sense to ensure
that every tree is protected and pre-
served in situ. Secondly, by making
transplantation mandatory, this policy
ensures that the transplanted tree con-
tinues to perform the much-needed
function of generating oxygen and
absorbing pollution.
Thirdly, the fact that the saplings
that are being planted need to be more
than eight feet high will ensure that
most of these will survive if they are
looked after. And by mandating that 10
saplings need to be planted for every
tree felled or transplanted, the policy
has ensured that the tree cover of Delhi
will actually increase. And, more impor-
tantly, when it comes to transplantation
and new plantations, first preference
will be given to roadside plantation,
thus ensuring that the trees are planted
where they are most needed.
The shortcomings of this policy are
that there is no mechanism to penalise
the project proponent if this tree planta-
tion and transplantation exercise is not
carried out properly. The only penalty
that is contemplated under the draft
policy is that some portion of the pay-
ment being made to the technical
agency that carried out the plantation
would be deducted. This is one area
where this draft policy needs to be
strengthened.
T
here is no reason why this policy
should not be adopted by other
states and cities as well. Air pol-
lution is impacting everyone’s life. Our
greenery and tree cover are rapidly
shrinking, and it is obvious that the
existing government policy of compen-
satory afforestation that is required to
be carried out under the Forest
Conservation Act, 1980, is just not
working. The area under forests is also
rapidly declining, both as a result of
“development” projects and also because
of unchecked encroachments under the
Forest Rights Act.
Tree transplantation is an idea whose
time has come. It may be expensive and
time-consuming, but no price is too
steep when it comes to safeguarding our
health and improving air quality.
Transplantation of trees also
requires a great deal of expertise. If the
tree that needs to be transplanted is
big, it would require large cranes and
trailer trucks to remove and transport
it. It would also require careful digging
around the roots to ensure that they are
not damaged. Great care would have to
be taken to ensure that the “root ball”
remains intact. In most cases, a large
number of branches would also have to
be trimmed. And at the transplantation
site, the trunk would have to be
propped up until its roots take hold and
the tree is stabilised. It would obviously
also take a while for new branches to
grow and restore the tree to its former
glory.
For small and medium-sized trees,
there are now specialised tree trans-
plantation trucks that can literally exca-
vate the tree from the ground, and carry
it to the new location for transplanta-
tion. There are already a number of
agencies that are offering tree planta-
tion services on a commercial basis.
Hopefully, we will see fewer and
fewer trees being felled, and more and
more of them being transplanted. Large
trees offer a whole range of benefits
that smaller saplings cannot. And as the
smaller trees grow to their full height,
we will continue to benefit from the
oxygen being produced from the trans-
planted trees, thereby reducing the pol-
lution load in the atmosphere.
—The writer is Executive Trustee,
Conservation Action Trust
MY LIFE, MY SUPPORT
A woman hugs a tree during the Save The
Tree campaign in New Delhi
AsDelhiisamongstthemostpolluted
citiesintheworld,itmakessenseto
ensurethateverytreeisprotectedand
preservedinsitu.Thepolicywillhelpto
increasethetreecoverofDelhi.
UNI

India legal 18 march 2019

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