India Legal - 25 November 2019

NDIA EGALL STORIES THAT COUNT
`
I
November25, 2019
India Justice Report Trump and Impeachment
BLOCKBUSTER
WEEK
SUPREME COURT
ent
Chief Justice office under RTI
Disqualification of Karnataka MLAs
Babri Masjid Demolition case
Sabarimala verdict fallout
Rafale Deal

VEN as the unholy alliance of the
Shiv Sena, NCP and Congress is poi-
sed to form a new government in Ma-
harashtra following state elections
that threw up a hung assembly with
the BJP emerging as the single largest party,
the role played by Governor Bhagat Singh
Koshyari, an RSS veteran and former BJP
office holder, has come under sharp criticism
from the opposition.
Leaders from the Congress, the Left, and the
TMC attacked the imposition of President’s
Rule before the deadline given to rival parties to
demonstrate their strength, as a “butchery” and
“mockery” of democracy. They lambasted the
governor’s decision as partisan and a repeat of
similar gubernatorial action in Uttarakhand,
Arunachal Pradesh and Goa
in the past.
While Congress supremo
Ahmed Patel accused Kosh-
yari of brazenly brushing
aside Supreme Court rulings
on government formation by
invoking Article 356 (failure
of constitutional machinery
in the state), the Shiv Sena
prepared a plea for the apex court, challenging
the governor’s verdict as “ex facie arbitrary,
unconstitutional and violative of Article 14”.
The Shiv Sena had been asked to form the
state government on November 10. It had sig-
nalled its readiness to do so on November 11.
The Sena avers that the governor is obligated
to permit a realistic timeframe for parties to
wrap up parleys on government creation and
not act as an “agent or mouthpiece of the cen-
tral government”.
0n a wider constitutional canvas, the Maha-
rashtra imbroglio has once again riveted the
nation’s attention on cooperative federalism
with which the Indian nation was glued toge-
ther. Founding Fathers Nehru and Ambedkar
were extremely wary that governors’ powers to
dismiss popular state governments or interfere
in formation of new governments following
elections under Article 356 would be misused
and politicised. They insisted these powers be
curtailed or used only in the rarest of rare
cases like a total constitutional meltdown.
The Founding Fathers envisaged governors
as the agents of the constitutional central poli-
ty and not the handmaidens of any political
party. This precept has been abused ad infini-
tum ad nauseam by all political parties. It is
indeed encouraging to see that the Supreme
Court has not shied away from attempting to
grapple with an issue that goes to the very root
of cooperative federalism.
I return, in this space, to the wisdom of the
Sarkaria Commission. Not
enough can be said about the
sagacity, political perspicacity,
scholarship and uncanny far-
sightedness of the luminar-
ies—Ranjit Singh Sarkaria, B
Sivaraman, Dr SR Sen. These
notables undertook—between
1983 and 1988—a remarkable
review of centre-state rela-
tions under the Indian constitution and
authored a 1,600-page magnum opus which
stands out as a beacon for the Indian system of
governance, guiding it more forcefully towards
the cardinal principle that glues Indians
together as citizens—the practice and pursuit
of enlightened federalism.
I wrote in April 2016 that in the aftermath
of the baffling politico-legal-constitutional
melodrama being played out in Uttarakhand
even before the embers of the Arunachal Pra-
desh conflagration had died out, it is signifi-
cant that the Shiv Sena, a regional avatar of
the Hindu Right more in tune with the BJP’s
Hindutva nationalism than the Congress’
inclusive secularism, should be singing the
DÉJÀ VU IN MAHARASHTRA
Inderjit Badhwar
E
0nawiderconstitutionalcanvas,
theMaharashtraimbroglio—
President’sRulehasbeenimposed
inthestate—onceagainrivetedthe
nation’sattentiononcooperative
federalismwithwhichtheIndian
nationwasgluedtogether.
Letter from the Editor
| INDIA LEGAL | November 25, 2019 3

same tune as the Grand Old Party. In unusual-
ly harsh terms, the Sena had officially condem-
ned the BJP’s imposition of Governor’s Rule in
Uttarakhand under Article 356 of the Consti-
tution as a “strangulation” of democracy: “In a
democracy, the voice of the opposition is of
paramount importance and should not be
strangled since a single-party rule would be
worse than an Emergency or dictatorship. The
country will be destroyed if the opposition is
targeted and snuffed out.”
The author of this sentence could well have
been a member of India’s Constituent
Assembly!
The detailed story of the unfolding political
crisis in which the courts were then involved
was carried separately at the time in India
Legal. What continues to be deeply disturbing
is the habitual and flagrant disregard for legal,
constitutional and administrative pronounce-
ments by politicians and political parties. The
conditions under which Article 356 (to be app-
lied in the “rarest of rare cases”) can be used to
dismiss an elected assembly and impose Gov-
ernor’s Rule are clearer than daylight. There
are no loopholes. The Constitution and the
landmark Supreme Court decisions (Bommai
in 1994, and Rajasthan versus Union of India
in 1977) stand together as an impregnable le-
gal fortress against misuse of this provision by
ruling parties at the centre to establish their
primacy over a state government through
horse-trading of legislators and political sub-
terfuge with the connivance of state governors
who act as agents of the ruling party rather
than as representatives of the Union of India.
Y
et, this Article has been invoked 126
times since Independence to dismiss
state governments. It is clear that the
Article may be invoked in emergency situa-
tions where there’s a total breakdown of law
and order, as a constitutional necessity. But it
cannot be used as a political weapon. And it
certainly cannot be used in violation of the
Letter from the Editor
ANI
RAW DEAL?
(Above) Shiv Sena
leaders meet
Maharashtra
Governor Bhagat
Singh Koshyari at
Raj Bhavan in
Mumbai; the
Sarkaria
Commission laid
the framework
for the Justice
Venkatachaliah
(right)
Commission
in 2000
4 November 25, 2019

Gold Standard in case of an alleged loss of a
majority in a legislature—the necessity of a
floor test.
Alas, the party crying foul the loudest—the
Congress—has historically been the worst vio-
lator starting with the Nehru government
which dismissed the first democratically elect-
ed state Communist regime of EMS Namboo-
diripad in Kerala in 1959. As blogger Nived
Narayan summed it up on Quora: “It set a pre-
cedent. And that was the real problem. The
Congress government dismissed state govern-
ments at will whenever they were formed by
parties which it had problems with. Such bel-
ligerent show of strength by the Central gov-
ernment, and that too from Nehru himself set
a bad precedent which later set an example for
the likes of Indira and Janata government of
Morarji to trample upon the federal structure.”
“Trample upon the federal structure” is the
operative phrase. It is playing with fire. It is
tantamount to unravelling the delicately and
sensitively woven warp and woof of India
which came into being as a nation of citizens
in 1947-48 after more than 562 independent
principalities joined the Indian Union (former-
ly British India).
I
t was to the preservation of this striking
new national amalgam of the most cultur-
ally, geographically and linguistically di-
verse people of the world through the concept
of Indian citizenship that the Sarkaria Commi-
ssion addressed itself. Its mandate—re-exam-
ining and suggesting reforms in the whole
gamut of centre-state relations—was huge and
daunting. Further, it laid the intellectual and
academic framework for a monumental project
later undertaken by the first NDA government
in 2000. Under a bold initiative from Prime
Minister Atal Bihari Vajpayee, the government
established the National Commission to
Review the Working of the Constitution
(NCRWC), also known as the Justice Venka-
tachaliah Commission, to recommend possible
amendments to the Constitution of India. The
mammoth task force submitted its report in
March 2002. What was the key feature in the
Constitution that enabled the very idea of
Indian nationhood? Both commissions
answered this question with an answer that
was spot on! Federalism.
To strengthen federalism, even at the cost
of more decentralisation and greater regional
autonomy, Sarkaria believed, was to strengthen
India. But laws and emergency provisions were
also needed to prevent the disintegration of
the nation through violence and anarchy. One
of them was Article 356.
The 1,600-page Sarkaria report with 247
recommendations spread over 19 chapters
made the following observations: “Federalism
is more a functional arrangement for coopera-
tive action, than a static institutional concept.
Article 258 (power of the Union to confer pow-
ers etc on states in certain cases) provides a
tool by the liberal use of which cooperative
federalism can be substantially realised in the
working of the system. A more generous use of
this tool should be made than has hitherto
been done, for progressive decentralization of
powers to the governments of the states….”
Article 356, it recommended, should be
used “very sparingly, in extreme cases, as a
measure of last resort, when all other alterna-
tives fail to prevent or rectify a breakdown of
constitutional machinery in the state”.
When will we ever learn?
Twitter: @indialegalmedia
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Contact: editor@indialegallive.com
FoundingFathersNehruandAmbedkarwerewarythatgovernors’powersto
dismisspopularstategovernmentsorinterfereinformationofnewgovernments
followingelectionsunderArticle356wouldbemisusedandpoliticised.

Blockbuster
Week
ContentsVOLUME XIII ISSUE2
NOVEMBER25,2019
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November 25, 2019
In his last week in office,
Chief Justice Ranjan
Gogoi presides over a slew
of important cases
The Supreme Court verdict on disqualification of legislators in Karnataka sets
many doubts to rest, but it also flags a fundamental issue hanging fire for quite
some time—reform in the anti-defection law itself
The Defection Dilemma 16
The Ayodhya verdict declared the destruction of the Babri mosque a
violation of the law. How does that impact the on-going case in Lucknow
against BJP stalwarts?
The Legal Tangle 20
With the Supreme Court referring to a larger bench the review petitions relating
to the Sabarimala case, it is unclear whether the status quo prior to or
post-September 28, 2018, would prevail
Confusion Remains 22
The apex court dismisses the review petitions on the Rafale deal but Justice KM
Joseph in a concurring yet separate judgment says the CBI is free to register an
FIR for alleged corruption
Devoid Of Merit, But… 24
The apex court’s judgment on disclosure of information, bringing the CJI’s office
under RTI, has to be tested from case to case to determine how the Court
balances it with public interest
Balancing Act 12

Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Cover Design: AMITAVA SEN
| INDIA LEGAL | November 25, 2019
REGULARS
Ringside............................8
Courts ...............................9
Is That Legal...................10
Media Watch ..................31
International Briefs..........44
Satire ..............................50
Trump’s biggest
challenge
The Senate may not convict US President
Donald Trump of any impeachment charge,
but it is to be seen how voters will react to the
developments in the presidential elections
next year
46
Criminal
Proceedings
Opposition parties and human rights
activists are up in arms over the
Gujarat Control of Terrorism and
Organised Crime Bill, which they
term draconian and open to misuse
for political gains
34
40
STATES
GLOBALTRENDS
Dubious by Degrees
With the CBI investigating fake marksheet scams in states, it may lead to a
Pandora’s Box with the probes including verification of certificates deposit-
ed by government employees
38
The India Justice Report 2019 offers a comprehensive analysis of
India’s justice system, ranking 18 large/mid-sized and seven small
states according to their capacity to deliver justice to all
Scales of Justice
SPECIALFEATURE
26
Health insurance holders are likely
to get a new policy package framed
by the Insurance Regulatory and
Development Authority (IRDA). The
idea is to reduce hospital admis-
sions and severity of diseases
Insuring
Wellness
FOCUS
The apex court reiterates
that a dying declaration
given in a proper state of
mind can be made the
basis for conviction even in
the absence of a thumb
impression or signature
Thumb
Signal 32
SUPREMECOURT
Shimla’s Book Cafe run by prisoners serving life sentences in the
local jail is a much-loved institution. However, it may lose its iconic
status due to myopic municipal officials
Prisoners of Fate
SPOTLIGHT
36

8 November 25, 2019
Amitava Sen
RINGSIDE
Hindu Rate of Growth
Ram Temple
Article 370
Triple Talaq
GDP

The apex court struck down rules in the
amended Finance Act 2017 on tribunals
and asked the centre to reformulate fresh
norms for the appointment of tribunal mem-
bers. In an interim order, the top court said
that appointments to tribunals would be on
the basis of the existing laws governing rele-
vant sectors and not on the basis of rules
framed under the Finance Act 2017. The
five-judge constitution bench, comprising
Chief Justice of India Ranjan Gogoi and Jus-
tices NV Ramana, DY Chandrachud, Deepak
Gupta, and Sanjiv Khanna, also ordered that
the validity of the passage of the Finance Act
2017 as a money bill should be
decided by a larger bench.
Money bills enable the gov-
ernment to impose taxes and
withdraw money and only re-
quire passage in the Lok Sabha.
The Finance Act 2017 had made
various amendments to enable
new rules and appointments for
various tribunals, including the
Industrial Tribunal, Railway Clai-
ms Tribunal, National Green Tri-
bunal, Armed Forces Tribunal,
Appellate Tribunals for sectors,
such as telecom, aviation, highways, taxa-
tion, company law, and others.
The bench asked the government to
reframe the rules and said the existing laws
would govern the tribunals until then. The
law ministry was asked to conduct an im-
pact study and submit its report to the apex
court. The petitioner, Congress leader Jairam
Ramesh, said after the verdict: “It will have
far-reaching consequences on any future
attempts by the Modi government to abuse
the Money Bill route and is also a reminder
to future governments that any attempt at
diluting our institutions will not be allowed.”
Courts
—Compiled by India Legal Team
Interim relief for
Gautam Navlakha
The Bombay High Court granted
interim protection from arrest
to activist Gautam Navlakha, an
accused in the Elgaar Parishad
case, till December 2 when his
anticipatory bail plea will be heard.
Earlier his anticipatory bail plea
was rejected by a special UAPA
court in Pune. Navlakha’s plea for a
three-day extension of his protec-
tion from arrest period was also
shot down by the special court.
The Pune court had based its
verdict on the grounds that Nav-
lakha needed custodial interroga-
tion, going by the material present-
ed against him which clearly sho-
wed that he was not only a mem-
ber of the CPI (Maoist) but a leader
in the thick of things of the party.
His custody was essential for the
investigative agencies to get to the
root of the case and unravel links
with the banned organisation, the
court observed.
It also noted that he could not
be interrogated till date due to the
protection granted by higher courts
against arrest.
Navlakha had applied for antici-
patory bail in the Pune court on the
instructions of the Bombay High
Court. Earlier, in September, the
High Court did not quash the case
registered by the Pune police under
the UAPA and IPC but his interim
relief from arrest was extended by
three weeks.
Navlakha appealed in the Supre-
me Court which extended his inter-
im protection from arrest till Octo-
ber 15 and was later again extend-
ed by four weeks.
ADelhi court stayed the bailable warrant
issued against Congress MP Shashi
Tharoor by Additional Chief Metropolitan
Magistrate Naveen Kumar Kashyap. The
warrant was issued after Tharoor did not
turn up at the hearing of a defamation case
over his disparaging remark. He had com-
mented at the Bangalore Literature Festival
last year that an unnamed RSS leader had
compared PM Modi to “a Scorpion sitting
on a Shivling”. Delhi BJP leader Rajiv
Babbar filed a criminal defamation case
against Tharoor, alleging that his religious
sentiments had been hurt.
Kashyap took note of the fact that nei-
ther Babbar nor his counsel was present in
the Court. Tharoor and his counsel also did
not appear and this also did not escape his
attention. He imposed a fine of `500 on
Babbar and ordered that the money be paid
to DLSA, Central District Tis Hazari Court.
Tharoor was issued a bailable warrant of
`5,000 and notice to his surety for Novem-
ber 27, 2019. In Tharoor’s case, the Court
took into account that no
letter requesting exemp-
tion from appearance was
furnished. It also noticed
that the application from
Babbar did not clearly
mention the reason for
being absent. Even
his main counsel
was absent, the
Court noted.
Bailable warrant for
Shashi Tharoor stayed
SC strikes down amended
Finance Act 2017 for tribunals
FM Nirmala Sitharaman with Budget proposals 2019-20

ISTHAT
How is custody of a child decided
when parents separate?
A family court determines who is a
fit parent to take complete care of
the needs of the child—emotional,
medical and educational. The earn-
ing capacity of a parent is not nec-
essarily the priority for the court as it
can always order the working parent
to provide for the child who is under
the care of the unemployed parent.
A mother is the preferred choice
of courts if the child is below five
years of age. A nine years old and
above child’s opinion is often taken
for an intelligent preference. Christian
laws adhere to the rule of joint phys-
ical custody. A Muslim mother is
solely entitled to custody unless she
is proved to be unfit. Parsi law man-
dates courts to settle custodianship
disputes within 60 days.
— Compiled by Ishita Purkaystha
Custody Laws
Can damaged/torn up currency notes
be exchanged in a bank?
All bank branches accept soiled notes
and pay the full value. However, as
per the Reserve Bank of India (Note
Refund) Rules, 2009, one can get a
full or half refund of the value of a
mutilated note depending on its con-
dition. A currency note cut or torn
deliberately will not be refunded. The
RBI also issues exchanged notes. Its
website has a list of currency chests,
where bank notes and coins are sto-
red on behalf of the RBI for distribu-
tion. Damaged or torn notes are acc-
epted over the counter and a token,
DN-1, is issued. The refund value and
criteria vary according to denomina-
tion, as specified in the 2009 rules.
Damaged Note?
No Problem
?
10 November 25, 2019
Ignorance of law is no excuse. Here are answers to frequently asked
queries regarding matters that affect us on a day to day basis
What is a will? What are the basic points to
keep in mind while making a will?
Section 2(h) of the Indian Succession Act,
1925, defines a will as “the legal declaration of
the intention of a testator with respect to his
property which he desires to be carried into
effect after his death”. A testator is a person
who makes a valid will while he is alive. Any
adult who wants to distribute his assets can
write a will, provided he is of sound mind.
There is no hard and fast rule that a will
has to be written only on stamp paper and that
it must be registered. A will written on plain
paper is perfectly valid as per the law. A will
can, however, be also framed by a lawyer,
especially in cases where the assets and own-
erships are not that simple. A lawyer will also
ensure that the will is in sync with the law.
However, in both cases, the testator must
be clearly identified by his signature, and attes-
tation by at least two reliable witnesses, the
assets must be listed clearly and there should
be no ambiguity as to how these are to be dis-
tributed among the beneficiaries. A testator can
also withdraw his will or change it.
When does a judge recuse
from a case?
There is no codified law as
such that determines judicial
recusals. However, the prac-
tice finds its source in the
legal maxim, nemo judex in
causa sua, which means that
“no one should be a judge in
his/her own cause”.
An application for recusal
is addressed directly to the
judge whose recusal is being
sought in a case and it is the
sole prerogative of the judge
whether to recuse himself/her-
self from the concerned bench
hearing the case or continue
on it. The judge may also
recuse himself before any
request from a party in the
case. A judge usually recuses
if he/she had argued in the
case earlier, or is interested in
the subject matter or is per-
ceived to be linked to one of
the litigants, or had communi-
cated ex parte with a con-
cerned lawyer or non-lawyer.
However, a judge will not
recuse if he/she was already
part of a smaller bench hear-
ing the dispute.
Disqualify
Oneself from
Hearing a Case
A Document of
Your Intentions

In his last few days in office, the Chief
Justice of India, Ranjan Gogoi, presides
over a slew of important cases with vital
implications for the future of Indian
democracy
Lead/ Supreme Court Verdicts

T took nine years for the Supreme
Court to acknowledge that judicial
independence is inseparable from
judicial accountability, and that its
resistance to disclose information
in public interest will erode its cre-
dibility as an institution. On November
13, the Constitution bench comprising
the Chief Justice of India, Ranjan
Gogoi, and Justices NV Ramana, DY
Chandrachud, Deepak Gupta and
Sanjiv Khanna, in its unanimous
judgment, held that the Supreme
Court is a public authority and
would necessarily include the office
of the chief justice of India and
judges in view of Article 124 of
the Constitution.
“The office of the CJ or for that
matter the judges is not separate
from the Supreme Court, and is part
and parcel of the Supreme Court as a
body, authority and institution. Ordina-
rily, the relationship between the CJ and
Judges would not be that of a fiduciary
and a beneficiary. However, it is not an
absolute rule/code for in certain situa-
tions and acts, fiduciary relationship
may arise,” Justice Khanna said in the
main judgment on behalf of the bench
which was authored by him.
“Medical records, treatment, choice
of medicine, list of hospitals and doctors
visited, findings recorded, including that
I
Lead/ Supreme Court/ CJI Office Under RTI
of the family members, information re-
lating to assets, liabilities, income tax
returns, details of investments, lending
and borrowing, etc. are personal infor-
mation. Such personal information is
entitled to protection from unwarranted
invasion of privacy and conditional acc-
ess is available when stipulation of larg-
er public interest is satisfied. This list is
indicative and not exhaustive,” Justice
Khanna elucidated.
The bench examined a batch of three
civil appeals raising questions of consti-
tutional importance bearing on the right
to know, the right to privacy and the
transparency, accountability and inde-
pendence of the judiciary. In the first
appeal, the respondent sought informa-
tion relating to complete correspon-
dence between the then CJI and Justice
R Reghupati of the Madras High Court
in 2009, following a story in The Times
of India that a Union minister had
approached the latter through a lawyer,
to influence his judicial decisions.
In the second appeal, the respondent
sought details of Collegium file notings
relating to appointment of Justice HL
Dattu, Justice AK Ganguly and Justice
RM Lodha to the Supreme Court.
In the third appeal, the respondent
sought information concerning declara-
tion of assets made by the puisne judges
of the Supreme Court to the CJI, and
the judges of the High Courts to the
chief justices of the respective High
Courts. The administrative wing of
the Supreme Court was the appellant in
Balancing Act
Theapexcourt’sjudgmentondisclosureofinformation,bringing
theCJI’sofficeunderRTI,hastobetestedfromcasetocaseto
determinehowtheCourtbalancesitwithpublicinterest
By Venkatasubramanian
LANDMARK VERDICT
The Supreme Court has said that the office of
the CJI is a public authority under the RTI Act
Anil Shakya

final opinion or resolutions passed by
the Collegium with regard to appoint-
ment/elevation and transfer of judges
with observations and indicative reasons
and the inputs/data or details which the
Collegium had examined. The rigour of
public interest in divulging the input
details, data and particulars of the can-
didate would be different from that of
divulging and furnishing details of the
output, that is, the decision, the bench
held. In the former, public interest test
would have to be applied keeping in
mind the fiduciary relationship (if it
arises), and also the invasion of the right
to privacy and breach of the duty of con-
fidentiality owed to the candidate or the
information provider, resulting from
such disclosure, the bench explained.
The bench justified the recent deci-
sion of the Collegium not to disclose
reasons for non-selection of certain can-
didates for the posts of judges of High
Courts and the Supreme Court because
disclosure would compromise their right
to privacy.
T
he bench upheld the Delhi High
Court’s 2010 judgment which
had upheld the order passed by
the Central Information Commission
(CIC) directing the CPIO, Supreme
Court of India, to furnish information
on the judges of the Supreme Court who
had declared their assets. Such disclo-
sure would not, in any way, impinge
upon the personal information and right
to privacy of the judges, the bench held.
The fiduciary relationship rule in terms
of clause (e) to Section 8(1) of the RTI
Act is inapplicable. It would not affect
the right to confidentiality of the judges
and their right to protect personal infor-
mation and privacy, which would be the
case where details and contents of per-
sonal assets in the declaration are called
for and sought, in which event the pub-
lic interest test as applicable vide Sec-
tion 8(1)(J) and proviso to Section 11(1)
of the RTI Act would come into opera-
tion, the bench reasoned.
In his concurring judgment, Justice
Ramana held that right to information
and right to privacy are two faces of the
same coin. Having ascertained whether
the information is private or not, a
judge is required to adopt a balancing
test to note whether public interest jus-
tifies disclosure of such information
under Section 8(1)(j) of the RTI Act,
he suggested.
The exemption of public interest occ-
urring under Section 8(1)(j) requires
all the three.
Justice Khanna held that the inde-
pendence of the judiciary is not limited
to judicial appointments to the Supreme
Court and High Courts, as it is a much
wider concept which takes within its
sweep independence from many other
pressures and prejudices. It consists of
many dimensions, including fearlessness
from other power centres, social, eco-
nomic and political, freedom from prej-
udices acquired and nurtured by the
class to which the judges belong and the
like, he said. Judicial independence and
accountability go hand in hand as acc-
ountability ensures, and is a facet of
judicial independence, he added.
While applying the proportionality
test (that is, how much to disclose), the
type and nature of information are rele-
vant factors. The bench reasoned that
distinction must be drawn between the
JusticeChandrachudemphasisedthatsubstantivestandardsmustbeformulatedand
placedinthepublicdomaintopromoteconfidenceintheappointmentsprocess.Due
publicitytothenormswouldfosteradegreeoftransparencyandpromoteaccountabil-
ityindecision-makingwithinthejudiciaryandthegovernment,hesuggested.
JusticeNVRamanaheldthatrighttoinformationandrighttoprivacyaretwofacesof
thesamecoin.Havingascertainedwhethertheinformationisprivateornot,ajudgeis
requiredtoadoptabalancingtesttonotewhetherpublicinterestjustifiesdisclosure
ofsuchinformationunderSection8(1)(j)oftheRTIAct,hesuggested.

a balancing test to be adopted. The two
separate concepts “interest of the public”
and “something in the public interest”
need to be distinguished. Those matters
which affect political, moral and materi-
al welfare of the public need to be dis-
tinguished from those for public en-
tertainment, curiosity or amusement.
Section 8(1)(j) requires us to hold that
only the former is an exception to the
exemption, Justice Ramana held.
The Supreme Court’s judgment, deli-
vered by a seven-judge bench in the
First Judges case (SP Gupta vs Union of
India) favouring disclosure of corres-
pondence in respect of the appointment
process bound the bench. Attorney Gen-
eral KK Venugopal, however, argued
that the decision in SP Gupta was based
on a factually distinct situation where
disclosure of correspondence regarding
the non-appointment of an additional
judge was ordered on the ground that
the judge was a party to the proceeding
before the Court. Further, he contended
that the decision established a restric-
tion on the disclosure of information to
third parties.
In SP Gupta, the argument that dis-
closure of correspondence between con-
stitutional functionaries in relation to
the appointment process of judges
would preclude the free and frank
expression of opinions was rejected.
The argument of candour does not fall
under any of the exemptions under the
RTI Act, and therefore, this disclosure
of information cannot be excluded
from the purview of the RTI Act, the
bench held.
J
ustice Chandrachud held that the
decision in SP Gupta is not a pre-
cedent for a proposition for general
disclosure in all circumstances, but it
rejected the contention that disclosure
and candour are incompatible and such
correspondence is entitled to class imm-
unity. The latter argument is that the
correspondence between the law minis-
ter, the chief justice of the High Court,
the chief minister or the law minister of
the state government and the chief jus-
tice of India in regard to appointment or
non-appointment of a High Court or a
Supreme Court judge or transfer of a
High Court judge and the notings made
by these constitutional functionaries in
that behalf belong to a protected class of
documents. It was contended that dis-
closure of these documents would be
prejudicial to national interest and the
dignity of the judiciary. It was argued
that the Court is not required to assess
the effects of disclosure in a particular
case, as all correspondence of such na-
ture belongs to a special class.
The late Justice PN Bhagwati, who
was part of the seven-judge bench in
SP Gupta, rejected it, saying that the
claim for class immunity was an extraor-
dinary claim, and contradictory to and
destructive of the concept of an open
government.
To Justice Chandrachud, the Colle-
gium owes its birth to judicial interpre-
tation. In significant respects, the Colle-
gium is a victim of its own birth-pangs,
he said. Bereft of information pertaining
to both the criteria governing the selec-
tion and appointment of judges to the
higher judiciary and the application of
those criteria in individual cases, citi-
zens have engaged the constitutional
right to information, facilitated by the
RTI Act, he suggested.
Justice Chandrachud emphasised
that substantive standards must be for-
mulated and placed in the public do-
main to promote confidence in the
appointments process. Due publicity to
the norms which have been formulated
and are applied would foster a degree of
transparency and promote accountabili-
ty in decision-making at all levels within
the judiciary and the government, he
suggested. The norms may also spell out
the criteria followed for assessing the
judges of the district judiciary for higher
judicial office, he opined. There is a vital
public interest in disclosing the basis on
which those with judicial experience are
evaluated for elevation to higher judicial
office particularly with regard to merit,
integrity and judicial performance.
Placing the criteria followed in making
judicial appointments in the public do-
main will fulfil the purpose and man-
date of Section 4 of the RTI Act, engen-
der public confidence in the process and
provide a safeguard against extraneous
considerations entering into the process,
he reasoned.
To many, however, the bench’s lip
service in favour of pro-active disclosure
of information has to be tested in prac-
tice, especially when the centre is un-
willing to notify the revised Memoran-
dum of Procedure (MoP) in the light of
the Supreme Court’s judgment in 2015,
to regulate appointments and transfers
of judges of the higher judiciary.
“TheofficeoftheCJorforthatmatterthejudgesisnotseparatefromtheSupreme
Court....Ordinarily,therelationshipbetweentheCJandJudgeswouldnotbethatofa
fiduciaryandabeneficiary.However,itisnotanabsoluterule/code...,”saidJustice
SanjivKhannainthemainverdictofthebenchwhichwasauthoredbyhim.
Lead/ Supreme Court/ CJI Office Under RTI

He is also disqualified for appointment
to a remunerative political post (Article
361B).
The Tenth Schedule lists two gro-
unds on which a legislator can be dis-
qualified for defection. One, if he volun-
tarily gives up membership of his politi-
cal party; and two, if he votes or abs-
tains from voting in the House contrary
to any direction issued by his party.
Further, the Supreme Court in sever-
al judgments, particularly in Zachillu
Khusantho vs State of Nagaland (1993),
has held that even in the absence of a
formal resignation from membership,
an inference can be drawn from the con-
duct of a member that he has voluntari-
ly given up his membership of the politi-
cal party. Thus the act of voluntarily giv-
ing up the membership of a political
party may be either express or implied.
The Tenth Schedule, however, provides
an exception to this too. As of now, if
two-thirds of the members of a political
party decide to merge with another par-
ty, the disqualification on the ground of
defection is inoperative.
Moreover, paragraph 7 of the Tenth
Schedule originally barred the jurisdic-
tion of courts in respect of any matter
Lead/ Supreme Court/ Disqualification of MLAs
N November 13, 2019, the
Supreme Court, while up-
holding the order of the
former Speaker of the Kar-
nataka legislative assembly
disqualifying 17 MLAs
under the anti-defection law (the Tenth
Schedule of the Constitution of India),
struck down that part of the order
which specified that the disqualification
will last from the date of the order until
the expiry of the term of the 15th Legis-
lative Assembly in 2023. The Tenth
Schedule was added to the Constitution
of India in 1985 to combat the evil of
political defections on account of offers
of office or other inducements. It lays
down the process by which legislators
may be disqualified on grounds of defec-
tion by the presiding officer of a legisla-
ture based on a petition by any other
member of the House. The law applies
to both parliament and state assemblies.
Consequent to this provision, Articles
75 (1B), 164 (1B) and 361B were also
inserted in the Constitution which inter
alia prescribe that if a legislator (MP or
MLA/MLC) is disqualified for being a
member of the House under paragraph
2 of the Tenth Schedule, he shall also
be disqualified for appointment as a
minister for the duration of the period
commencing from the date of his dis-
qualification till the date on which his
term would expire or, when he contests
any election, till the date on which he
is declared elected, whichever is earlier.
connected with the disqualification of a
member of a House. However, the Sup-
reme Court, in its judgment in Kihoto
Hollohan vs Zachilhu and Ors (1992)
struck down this provision as unconsti-
tutional on the ground that it affected
the power of the judicial review of the
Supreme Court and High Courts under
Articles 136, 226 and 227. The Court
held that the order of the Speaker
under the Tenth Schedule can be sub-
ject to judicial review on grounds of
The DefectionWhilethelatestjudgmentoftheapexcourtondisqualificationof
legislatorsinKarnatakasetsmanydoubtstorest,italsoflagsa
fundamentalissuewhichhasbeenhangingfireforquitesome
time—areformintheanti-defectionlawitself
By Vivek K Agnihotri
O
TheSChadtodecideiftheSpeaker’s
orderonresignationsanddisqualification
wasinaccordancewiththeConstitution
andifhecoulddisqualifythemembers
fortherestoftheterm.

2018, wherein the petitioners were elec-
ted as MLAs. Since no single party had a
majority, a coalition government was
formed, which had a short life of 14
months, ending with the resignation of
the chief minister after losing the trust
vote on July 23, 2019. In the meanwhile,
applications for disqualification of the
petitioners were filed with the Speaker
in February 2019 and later. In early July
2019, the petitioners submitted their
resignations to the Speaker. However,
the Speaker, instead of taking a call on
the resignation letters, proceeded to
finalise the disqualification case and
passed the impugned order. The peti-
tioners then approached the SC.
Mainly, there were two issues to be
decided by the Supreme Court: (1):
Whether the order of the Speaker reject-
ing the resignations and disqualifying
the petitioners was in accordance with
the Constitution (2). Even if the Sp-
eaker’s order of disqualification is valid,
does the Speaker have the power to
disqualify the members for the rest of
the term?
T
he Supreme Court found that dis-
qualification relates back to the
date when the act of defection
takes place. A pending or impending
disqualification action does not become
infructuous by submission of the resig-
nation letter, when act(s) of disqualifica-
tion have arisen prior to the member’s
resignation letter. On the second issue,
the finding was: In light of the existing
Constitutional mandate, the Speaker is
not empowered to disqualify any mem-
ber till the end of the term. However, a
member disqualified under the Tenth
Schedule shall be subjected to sanction
provided under Article 164 (1B) and
361B of the Constitution, which provide
for a bar from being appointed as a min-
ister or from holding any remunerative
political post from the date of disqualifi-
cation till the date on which the term
of his office would expire or if he is re-
elected to the legislature, whichever
is earlier.
While this judgment of the Supreme
Courts sets many doubts to rest, it also
flags a fundamental issue which has
been hanging fire for quite some time,
namely, reform in the anti-defection law
(the Tenth Schedule) itself. The Court
observed: “There is a growing trend of
the Speaker acting against the constitu-
tional duty of being neutral. Further
horse trading and corrupt practices
associated with defection and change of
loyalty for lure of office or wrong rea-
sons have not abated. Thereby the
mala fide, perversity, violation of consti-
tutional mandate and violation of the
principle of natural justice.
Against the legal framework afore-
mentioned, let us take a look at the rele-
vant facts of the present case. The re-
sults of the 15th Karnataka assembly
elections were declared on May 15,
Dilemma
UNI
PARTIAL RELIEF
Congress and JD(S) MLAs after submitting
their resignations to the Karnataka governor

citizens are denied stable governments.
In these circumstances, there is need to
consider strengthening certain aspects,
so that such undemocratic practices are
discouraged and checked.”
T
he need to take a fresh look at the
anti-defection law was also high-
lighted in the 16-point pro-
gramme of M Venkaiah Naidu, the vice-
president of India, while delivering the
first Arun Jaitley Memorial Lecture,
organised by Delhi University on
October 29, 2019, as follows: “To review
the functioning of the Anti-Defection
Law to address grey areas like incen-
tivising members to resort to activities
that invite expulsion from the parties
besides stipulating specific timeframe
for deciding on defection matters by the
Presiding Officers of Legislatures.”
On the issue of neutrality of the Sp-
eaker, it would be for consideration
whether the power to disqualify the leg-
islators should be vested with the presi-
dent, as in the case of disqualification
for holding an office of profit. Alterna-
tively, the Speaker may be mandated to
consult the Election Commission before
taking a decision.
The other issue is of delay in the
competent authority taking a decision
on the petitions filed for disqualifica-
tion. The Supreme Court has, from time
to time, commented on the unnecessary
delay in deciding such petitions by the
presiding officers of the state legisla-
tures. Naidu, in his capacity as the
chairman of the Rajya Sabha, while
deciding the case of disqualification for
defection of Sharad Yadav and Another
in 2017, had observed that all such
petitions should be decided by the pre-
siding officers within a period of two to
three months.
Disqualification for defection is a
doubled-edged weapon. On the one
hand, it has been argued that if its valid-
ity flows from the right to recall, Kihoto
Hollohan (supra), why should there be
exemption for a merger of political par-
ties? On the other hand, the law, while
deterring defections, also leads to sup-
pression of healthy intra-party debate
and dissent. It restricts representatives
from voicing the concerns of their voters
in opposition to the official party line.
—The writer is a former
Secretary-General of the Rajya Sabha
TheSCbenchof(from
left)JusticesNV
Ramana,SanjivKhanna
andKrishnaMurari
observedthatthereisa
growingtrendofthe
Speakeractingagainst
theconstitutionalduty
ofbeingneutraland
corruptpracticesasso-
ciatedwithdefection
havenotabated.
MVenkaiahNaidu(left),astheRajyaSabhachairman,whiledecidingthecaseof
disqualificationfordefectionofSharadYadav(right)in2017,observedthatsuch
petitionsshouldbedecidedbypresidingofficerswithinaperiodofthreemonths.
Lead/ Supreme Court/ Disqualification of MLAs

Lead/ Supreme Court/ Ayodhya Fallout
HILE deciding the
Ram Janmabhoomi
title suit, the Supreme
Court in its November
9 judgment held the
demolition of the Bab-
ri mosque on December 6, 1992, a viola-
tion of the law. The five-judge bench
headed by Chief Justice of India Ranjan
Gogoi said: “The destruction of the mos-
que took place in breach of the order of
status quo and an assurance to this
Court. The destruction of the mosque
and the obliteration of the Islamic struc-
ture was an egregious violation of the
rule of law.”
That may not be good news for some
stalwarts of the Bharatiya Janata Party
who are facing charges of criminal con-
spiracy leading to the demolition of the
Ayodhya mosque. Those arraigned bef-
ore a special court at Lucknow include
LK Advani, Murli Manohar Joshi, Kal-
yan Singh, Uma Bharti, Sadhvi Ritam-
bhara, Brij Bhushan Singh and Sakshi
Maharaj; the latter two are sitting MPs.
Senior leaders of the Vishwa Hindu
Parishad named as accused include
Acharya Giriraj Kishore, Ashok Singhal
and VH Dalmia. Both Singhal and
Dalmia are now dead. Kalyan Singh,
being Governor of Rajasthan, enjoyed
immunity under Article 361. After he
relinquished charge of the gubernatorial
post, he appeared before the special co-
urt in September and was granted bail
The Legal Tangle
TheSCverdictonAyodhyadeclaredthedestructionofthemosqueaviolationofthelaw.How
doesthatimpacttheongoingcaseinLucknowagainstBJPstalwartsledbyLKAdvani?
By Atul Chandra in Lucknow
W
elsetge.cat

on a personal bond of `2 lakh. Twelve
other accused have been granted bail on
personal bonds of `50,000 each. A dis-
charge application moved by those acc-
used of conspiracy was earlier rejected.
Some of the accused were also nam-
ed in the Liberhan Commission report
which said: “Vinay Katiyar, Champat
Rai Jain, Acharya Giriraj Kishore, Mah-
ant Avaidyanath and DB Roy etc. had
begun plotting for demolishing the stru-
cture, though secretly, right from the
beginning. The methodology adopted
for the demolition was sudden attack on
the disputed structure, sudden simulta-
neous attack on journalists, proceeding
with technical logistics like putting of
ropes in the holes and then pulling the
wall under the domes….”
This case could be the salve for Mus-
lims if all or any of those arraigned are
held guilty and sentenced. Chances of
this, though, appear distant as many of
the prosecution witnesses have died and
locating many others is proving difficult
as they have changed residences. The
Supreme Court has so far taken a tough
line on the trial in the conspiracy case,
which is moving at a slow pace. On
April 17, 2017, the apex court ordered a
sessions court in Lucknow to hold daily
hearings in the case and set a deadline
of two years for the order to be passed.
The verdict is now expected in the mid-
dle of 2020 by when the term of the
judge, SK Yadav, will end. He was due to
retire on September 30 this year but the
Supreme Court extended his term in
July 2019, and told him to pass the
judgment in nine months.
T
he apex court directed the lower
court that criminal conspiracy
charges under Section 120-B be
registered against Advani and 20 others,
including then district magistrate of Fai-
zabad RN Srivastava, named accused in
FIR No 198. This reversed an earlier or-
der of the Allahabad High Court drop-
ping the conspiracy charge on technical
grounds. The order was passed by a sin-
gle-judge bench of Justice Jagdish Bha-
lla. The other FIR, No 197, filed after the
demolition, was against those who insti-
gated the mob.
The conspiracy case was being heard
in Lucknow while trial in the other case
was being held in the Rae Bareli court.
The two cases were clubbed by a Supr-
eme Court order of April 2017, following
which a Special Court (Ayodhya Prak-
aran) was constituted in Lucknow. Like
the five-judge bench calling the act of
mosque demolition “an egregious viola-
tion of law”, a two-judge apex court ben-
ch of Justices PC Ghose and RF Nari-
man in 2010 called it a “crime which
shook the secular fabric of India” and
dismissed the High Court’s judgment of
2001 upholding a CBI special court’s
decision to drop the conspiracy charges.
Hearings have been going on regu-
larly and 348 of 1,000 witnesses have
been examined, while around 50 have
passed away. Statements of the accused
are yet to be recorded. After this defence
lawyers will present their side of the
case. There was a brief reprieve for
Advani in September 2003 when the
special court in Rae Bareli decided to
discharge him in case No 198 while
ordering framing of charges against the
remaining accused. He was then the
deputy prime minister. But the verdict
was reversed by the Allahabad High
Court in 2005 which ordered reframing
of charges against the senior BJP leader.
Strongly arguing for the clubbing of
the two cases (197 and 198), the CBI
filed an affidavit in the Supreme Court
in 2012 stating that there was a single
general conspiracy by all the accused to
demolish the structure and each of the
accused facilitated and participated in
that. Therefore, the CBI said, all the
accused involved in the criminal con-
spiracy to demolish the structure should
be tried in the special court at Lucknow.
Senior advocate IB Singh, who is repre-
senting several of the accused, described
the case as a political witch hunt.
Given the political nature of the case,
because of which it has taken almost 27
years, its outcome may not meet expec-
tations. The trial court judgment will
not be the end of it as the case will then
go to the sessions court, High Court and
finally the apex court.
What remains to be seen is, if and
when the case reaches the Supreme
Court, it will still look at the demolition
as an “egregious violation of the law”.
Advani, the original poster boy of Hindu
nationalism, boasted after the apex
court verdict that he stood “vindicated
and deeply blessed”. That could yet
prove premature if the courts uphold
the Supreme Court’s ruling that the
demolition was against the law.
ThosearraignedbeforeaspecialcourtatLucknowincludeseniorBJPleaderslike
(fromleft)LKAdvani,MurliManoharJoshiandUmaBharti,andsittingMPs
BrijBhushanSinghandSakshiMaharaj,besidesothers.

Lead/ Supreme Court/ Sabarimala Verdict
HE five-member Consti-
tution bench of the Supreme
Court decided last week to
refer to a larger seven-mem-
ber bench the 56 review pet-
itions and four writ petitions
challenging its verdict of September 28,
2018, allowing women of menstruating
age to enter the Sabarimala temple of
Lord Ayyappa. This has come as a relief
to the devotees of Lord Ayyappa. Ever
since the September 2018 verdict, the
state had plunged into chaos with the
state government taking an aggressive
posture against the protesters. With the
court’s verdict it is expected that this
year’s pilgrimage, starting on November
17, will have a perceptible change.
The majority decision of the bench
comprising Chief Justice of India Ran-
jan Gogoi and Justices AM Khanwilkar,
Indu Malhotra, Rohinton Nariman and
DY Chandrachud, however, is not clear
whether the status quo prior to or post-
September 28, 2018, will prevail.
Delivering the verdict, CJI Gogoi made
it clear that the larger bench of the
Supreme Court would consider the cases
involving the entry of Muslim and Parsi
women in their places of worship as it
had to examine whether the court can
decide on the customs, rituals and prac-
tices related to faith and religion.
Moreover, Justices Chandrachud and
Nariman have rejected the review peti-
tions, making it a 3:2 majority decision.
The Supreme Court’s decision to ref-
er the review petitions to a larger consti-
tutional bench has not helped clear the
air. Confusion prevails as the Court has
chosen not to stay the September 28,
2018, verdict. Reacting to the Court’s
decision, Opposition leader Ramesh
Chennithala said that the government
should not act like a facilitator to bring
women to Sabarimala. “Interpreting the
silence on the part of the Court on
whether it is staying or not the earlier
Confusion
Remains
WiththeSupremeCourtreferringtoalargerbenchthereview
petitionsrelatingtotheSabarimalacase,itisunclearwhether the
statusquo priortoorpost-September28,2018,willprevail
By NV Ravindranathan Nair
in Thiruvananthapuram
Photos: UNI
REVIEW PENDING
Flag hoisting by Tantri Kandararu Rajeevaru at
the Sabarimala temple; (facing page) police
escort women at the shrine
T

Former Chief Minister Oommen Chan-
dy added that the verdict was a relief to
the devotees and the government should
not create unrest, interpreting it in its
own way.
Most commentators see the verdict
as a face-saver for everyone. The Consti-
tution bench decision is a face saver for
the government as well as the opposi-
tion and the devotees. As the state is
going to hold local body elections by
September next year, it is unwise for the
government to whip up passions by tak-
ing an aggressive posture, as it had done
last year.
For the BJP and Sangh Parivar, whi-
ch had backed the devotees to boost
their political fortunes, there has not
been much progress since then. Moreo-
ver, their commitment to the issue came
under question when BJP state presi-
dent PS Sreedharan Pillai termed the
issue a “golden opportunity” for the
party to make political gains.
BJP state general secretary MT
Ramesh said: “We are with the devotees.
We hope hurt feelings of devotees will
be assuaged by the court.” He added that
the party expected a favourable verdict
from the larger bench, like the one on
the Ram temple in Ayodhya.
The contention of those who chal-
lenged the verdict was that the question
of constitutional morality, gender equal-
ity and judiciary should not be allowed
to tamper with the faith, customs and
practices of the temple. They pointed
out that there is no ban on women but
only a restriction for women of men-
struating age.
Meanwhile, the government is plan-
ning to construct an airport near the
Sabarimala temple, hoping that if the
temple is open throughout the year, it
could bring in more tourist revenue to
the state. However, it is felt that such
efforts would impact the temple’s sancti-
ty and the atmosphere of the hill
shrine deep within the quiet Periyar
Tiger Reserve.
At least 50,000 protesters were
booked at the height of the agitation
against the apex court verdict in 2018.
The protests led to a decrease in the
number of pilgrims and revenue. The
Travancore Devaswom Board, which
runs the temple, said there was a 50
percent dip last year, with 1.2 crore pil-
grims visiting the temple against 2.2
crore in 2017. On an average, up to two
crore devotees pray at the temple
during the season. The court decision
would ensure a normal flow of pilgrims
this season besides giving respite to
all stakeholders.
verdict, the government should not start
bringing women of a certain age to
wreck the tranquility of the pilgrim sea-
son,” he said.
E
xpressing relief, Sasikumar Var-
ma, president, Sabarimala Kar-
ma, representative of the Panda-
lam royal family, said the government
should understand that by referring the
review petitions, the Supreme Court has
given the feeling that it is convinced that
there had been some anomaly. “As per
the wishes of the Ayyappa devotees, the
Supreme Court has referred the case to
a larger bench. It is a great relief to all,”
he said. BJP leader and former Mizoram
Governor Kummanam Rajasekharan
added: “The fact that the Court has
referred the matter to a larger bench, it
shows that it must have felt some inade-
quacies in the earlier verdict.”
Former Travancore Devaswom Board
(TDB) President and Congress leader
Prayar Gopalakrishnan, who had filed a
review petition, said it was not the final
verdict and the government should not
act in haste to bring in young women.
“The government should not escort the
women activists to Sabarimala at this
juncture. Let the Court pronounce its
final verdict,” he said. But CPI(M) leader
and former Board member N Rajagop-
alan Nair said that as the verdict has not
been stayed, there is a lack of clarity.
“Interpretingthesilenceonthepartof
thecourtonwhetheritisstayingornot
itsverdict,thegovernmentshouldnot
startbringinginwomenofacertain
agetowreckthetranquility.”
—OppositionleaderRameshChennithala

tions and ruled that leaked confidential
documents can be relied upon as evi-
dence, Justice Joseph wrote a separate
but concurring verdict this time, too. He
said that he was in agreement with the
main verdict written by Justice Kaul,
subject to certain aspects, but crucially
added that the verdict need not come in
the way of the CBI acting on the peti-
tioners’ complaint, as long as the agency
manages to get approval under the Pre-
vention of Corruption Act.
Justice Joseph then went on to quote
the Lalitha Kumari vs Government of
Uttar Pradesh and Others verdict of
2013 in which a constitution bench held
that the registration of an FIR was man-
datory under Section 154 of the CrPC.
He asserted that the petitioners had
almost made a case for acting on the
complaint but had not adhered to the
sections of the Prevention of Corruption
Act while filing the complaint.
In his judgment, Justice Joseph also
acknowledged that the Court had mixed
up the names of the Ambani brothers—
Mukesh for Anil—in the judgment of
December 14, 2018. Anil’s Reliance gro-
up is associated with the Rafale deal. He
wrote: “The very first statement in para-
graph 32… would appear to point to the
court taking into account a press release
suggesting that there was possibly an
arrangement between the parent Relia-
nce company and Dassault starting from
the year 2012… it is pointed out that
this court has grossly erred in confusing
Reliance Industries of which Mukesh
Ambani is the chairman with that of
Reliance Infrastructure, of which Anil
Ambani is the chairman….The parent
Reliance company which was referred
in the judgment is Reliance Industries
which is a completely different corpo-
rate body from Reliance Infrastructure
which appears, according to the peti-
tioners, to be the parent company
of RAL.”
No sooner had the details of Justice
Joseph’s separate verdict become public,
the Opposition raised demands for a
Joint Parliamentary Committee (JPC)
probe. Leading the way was Congress
leader Rahul Gandhi, who had been let
off by the apex court with a warning to
“be cautious” about what he said. He
said Justice Joseph had left open a “hu-
ge door” for investigation and demand-
ed that a JPC begin in full earnest. But
the BJP dismissed him by pointing to
the unanimous verdict, saying “it was
shameful indictment of his lies”.
T was a controversy that stalked
this government for the better part
of the past two years but last week,
the Supreme Court brought the
row over the Rafale deal to an end
when it dismissed a clutch of peti-
tions that sought a review of its own
verdict in December last year. The rul-
ing had cleared the Modi government
over irregularities in the fighter jet deal.
A three-judge bench comprising
Chief Justice of India Ranjan Gogoi and
Justices SK Kaul and KM Joseph, in its
judgment said: “Review petitions are
without any merit, it does appear that
the endeavour of the petitioners is to
construe themselves as an appellate au-
thority to determine each aspect of the
contract and call upon the Court to do
the same. We do not believe this to be
the jurisdiction to be exercised.” Justice
Kaul, who read out the judgment, said
that the bench had come to the conclu-
sion that it was not appropriate to order
a roving inquiry into the allegations.
But, as in April this year when the
bench rejected the government’s objec-
Lead/ Supreme Court/Rafale Verdict
Devoid Of Merit, But…
TheapexcourtdismissesthereviewpetitionsonthefighterjetdealbutJusticeKMJosephina
concurringyetseparatejudgmentsaysthattheCBIisfreetoregisteranFIRforallegedcorruption
By India Legal Bureau
I
FAVOURABLE VERDICT
Defence Minister Rajnath Singh after flying a
sortie in the Rafale aircraft in France
UNI

Special Feature/ India Justice Report 2019
sui generis report pre-
pared by Tata Trusts,
ranking the Indian states
and union territories, has
brought the spotlight on
the justice delivery system
and its four pillars—police, judiciary,
prisons and legal aid. Prepared in colla-
boration with the Centre for Social Jus-
tice, Common Cause, Commonwealth
Human Rights Initiative, DAKSH,
TISS-Prayas and Vidhi Centre for Legal
Policy, the inspiring foreword written by
a former CJI, Justice MN Venkatacha-
liah, sums up the need for all key stake-
holders to pay close attention to what
the report reveals.
It examines five-year trends to dem-
onstrate a state’s intention to improve
access and delivery of justice by increas-
ing resources, removing shortfalls and
clearing blockages. The report uses
objective and measurable government
data concerning structural anatomy of
the justice system and eschews direct
correlations to perceptions of safety,
performance or accountability. Maha-
rashtra tops the chart of large and mid-
sized states with the highest cumulative
score on individual counts while Tamil
Nadu and Kerala have improved their
performance. In the small states’ catego-
ry, Goa scores the highest with fair rank-
ing on individual counts as well. The
report reveals that Gujarat is the only
state to reduce vacancies across all
the pillars in a span of five years.
The rankings clearly indicate the
Scales of Justice
TheIndiaJusticeReport2019releasedthismonthoffersacomprehensiveanalysisofIndia’s
justicesystem,ranking18large/mid-sizedandsevensmallstatesaccordingtotheircapacityto
deliverjusticetoall.Therankingsclearlyindicatetheobstaclesthatpreventthejudiciaryfrom
reachingitstruepotential
By Ishita Purkaystha
A Maharashtra
Kerala
Tamil Nadu
Punjab
Haryana
Karnataka
Odisha
Gujarat
Madhya Pradesh
Chhattisgarh
Telangana
West Bengal
Andhra Pradesh
Rajasthan
Uttarakhand
Jharkhand
Bihar
Uttar Pradesh
Goa
Sikkim
Himachal Pradesh
Mizoram
Meghalaya
Arunachal Pradesh
Tripura
5.92
5.85
5.76
5.53
5.53
5.11
5.10
5.09
5.01
4.97
4.88
4.87
4.77
4.52
4.49
4.30
4.02
3.32
4.85
4.31
4.05
3.89
3.81
3.43
3.42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
1
2
3
4
5
6
7
State Score (out of 10) Rank (out of 18)
Large and mid-sized states
Small states
Overallrankingofstates
Calculated basis population size (18 large and mid-sized states have a
population above 10 million, and seven small states below 10 million).
Infographics: Rajender Kumar

obstacles preventing lower courts from
delivering their mandate. There are 28
million cases pending in subordinate
courts in India. The police, finds the
report, are also understaffed and
under-equipped. Legal assistance is
often inaccessible because rural women
do not disclose their problems to male
paralegals. Prisons are overcrowded be-
cause a majority of the inmates are un-
dertrials—awaiting investigation, in-
quiry or trial—and not convicts per se.
To an extent, Lok Adalats have contri-
buted in reducing the workload of
courts. In 2017-18, Lok Adalats disposed
of 7.85 million cases. Of these, 5.92 mil-
lion cases were disposed of by National
Lok Adalats (conducted by NALSA),
2.82 million of which (or 48 percent)
were in the pre-litigation stage. Another
1.93 million cases were disposed of by
Lok Adalats held by the State Legal
Services Authority (SLSA), of which
0.98 million (or 51 percent) were in the
pre-litigation stage.
POLICE
While responsive policing is a must to
enable a safe environment for citizens,
there are vacancies in the ranks of the
constabulary and officers. Each state
manages an autonomous police force,
with personnel from two distinct cad-
res—the state police service and higher
officials drawn from the Indian Police
Service. What is disconcerting is that
there is no identifiable trend in the ratio
of vacancies between the constabulary
and higher officials as it varies greatly
from one state to another. Out of the 18
states in the report, Tamil Nadu ranks
the highest in policing. It has a score of
6.49 out of 10. The situation in Uttar
Pradesh and Bihar looks worrisome as
they have managed only scores of 2.98
and 4.28, respectively.
Based on the available data, the po-
lice have a vacancy of up to 23 percent
of capacity. The report states that the
ratio of filling vacancies and increasing
spend on the police in the total state
expenditure is regressing. Reserved va-
cancies also go unfilled for years. The
report, however, admits that public data
on police budgets is insufficient to con-
clude whether budgetary allocations are
adequate, utilisation effective or if police
performance will improve in case the
budget is increased. The Padmanabha-
iah Committee on Police Reforms, in its
2000 report, suggested a 1:4 ratio bet-
ween higher officials and the constabu-
lary. Nineteen years later, state govern-
ments are nowhere close to that goal.
According to the report, women
make up for only seven percent of the
police force and the situation takes into
account the improvement in recruit-
ment over the past five years. It also
flags the lack of diversity in the police
force. The transgender community, reli-
gious minorities, and so on still find
themselves unrepresented in the force.
The upshot of this is that the common
man does not identify with the police
for seeking help or providing support in
an investigation.
There are vast differences between
states in the police-to-population ratio.
In some states and union territories, a
police station covers up to 852 sq km,
while in urban districts the area covered
is below 20 sq km. With transport being
an issue in rural areas, this makes jus-
tice inaccessible to many.
PRISONS
The average jail occupancy in India is
114 percent of the total capacity of pris-
ons. In 2016, 67.7 percent of the prison
population consisted of undertrials lod-
Policeranking
Tamil Nadu
Uttarakhand
Punjab
Maharashtra
Andhra Pradesh
Karnataka
Odisha
Haryana
Jharkhand
Chhattisgarh
Telangana
Gujarat
Kerala
Bihar
Madhya Pradesh
West Bengal
Rajasthan
Uttar Pradesh
Sikkim
Arunachal Pradesh
Goa
Tripura
Meghalaya
Himachal Pradesh
Mizoram
6.49
5.88
5.61
5.52
5.36
5.32
5.17
5.14
4.94
4.91
4.86
4.55
4.43
4.28
4.24
4.20
3.77
2.98
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
1
2
3
4
5
6
7
5.66
4.51
3.69
3.58
3.53
3.41
3.35
Small states

ged in jails. The scenario speaks vol-
umes about the pendency of cases in our
courts. Whereas the prison occupancy
rate in Nagaland is at a mere 20.5 per-
cent, Chhattisgarh stands at a staggering
222.5 percent with Uttar Pradesh at 208
percent. A shift towards a safe, clean
and rehabilitative environment in pris-
ons remains a distant dream. It requires
changes in law, ideology of policymak-
ers, attitude of prison administrators
and significant improvement in condi-
tions on the ground. The attitude of
“punishment” and “retribution’ has not
yet changed to a “correctional, refor-
matory and rehabilitative” approach.
State governments still do not have
prisons on their priority list. Although
state expenditures have increased with
each passing year, prison expenditure
remains stagnant. In fact, Gujarat’s
prison expenditure fell by 9.3 percent in
2015-16. Only seven states and UTs have
utilised their entire prison budget. Low
salaries, poor training, lack of promo-
tional opportunities, long working
hours, arduous workloads and high
vacancies at all levels characterise prison
administration across states. With the
exception of Chandigarh, Kerala and
Nagaland, all states registered a high
level of vacancies in 2016.
As a result, certain prisons are dep-
endent on long-term inmates, who man-
age various tasks—from main gate regis-
tration to doing administrative tasks
and even disciplining others. Depen-
dence on inmates means that their
unacceptable behaviour with other pris-
oners—exploitation, violence, collusion
in illegal activities or corruption—has to
go unchecked. Prison mortality rate is
higher than the country’s average index,
indicating lack of healthcare facilities
in jails.
Uttar Pradesh is among the four
states with no vacancy at the correction-
al staff level. But the sanctioned post is
one against 100,000 inmates while
Kerala, with only 7,073 inmates, has a
sanctioned strength of 25 correctional
staff members. Women’s share in prison
service shows a fall in as many as 10
states and UTs. The Justice Mulla
Committee on Jail Reforms (1980-83)
suggested an All India Prison Service
with appropriate job requirements,
sound training and proper promotional
avenues. The governments have grossly
failed to implement them.
JUDICIARY
A well-functioning judiciary is vital to
the maintenance of the rule of law,
social cohesion and sustainable develop-
ment. According to the India Justice
Report, the Supreme Court had pro-
posed the constitution of the National
Court Management Systems (NCMS), in
2012. The apex court highlighted the
lack of training among judicial officers
to plan and prepare budgets and recom-
mended bringing on board professionals
to assist in the budgeting process.
Sadly, the judiciary often finds itself
at a disadvantage because it is not gen-
erally perceived as “essential” or direct
public service unlike health, housing or
education. Its budget is limited to estab-
lishment costs—salary, allowances and
minimum operational costs; the fund
allocation does not stretch to capacity
building, not to speak about innovation
and experimentation. Nationally, India
spends 0.08 percent of its budget on the
judiciary. Only Delhi spends 1.9 percent
of its expenditure on the judiciary. All
other states and UTs spend less than
one percent on their judiciary.
Again, vacant judicial posts have long
plagued the pendency ratio in all the
For reasons of readability, scores are shown up to 2 decimals. While they both show the same
score, Gujarat is ranked above Tamil Nadu on the third decimal (5.233 versus 5.231). Likewise,
Andhra Pradesh is above Punjab (4.352 versus 4.351).
Kerala
Maharashtra
Karnataka
West Bengal
Odisha
Bihar
Madhya Pradesh
Chhattisgarh
Gujarat
Tamil Nadu
Haryana
Rajasthan
Telangana
Uttar Pradesh
Andhra Pradesh
Punjab
Uttarakhand
Jharkhand
Goa
Meghalaya
Arunachal Pradesh
Mizoram
Tripura
Himachal Pradesh
Sikkim
7.18
6.89
6.50
6.12
5.94
5.61
5.30
5.24
5.23
5.23
4.79
4.72
4.48
4.42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
1
2
3
4
5
6
7
5.30
5.24
4.10
3.99
3.49
3.46
3.43
Small states
Prisonsranking
4.35
4.35
3.72
3.46

states and UTs. However, no direct
causality has been established between
the “judge to population formula” and
the pendency of cases, based on avail-
able data.
While the value of gender diversity
is widely accepted, the report finds that
no state has adopted affirmative action
for women judges in its High Courts.
Only Tamil Nadu has a high number of
women judges at the High Court level.
The report adds that the number of
women judges exceeds the 35 percent
quota in the subordinate courts in
Tamil Nadu.
LEGAL AID
The report highlights that 80 percent of
1.25 billion Indians are eligible for legal
aid; however, only 15 million people
have accessed it since 1995. What is
even more depressing is that the quality
of legal aid available in India is sub-par,
with lack of training and monitoring of
legal aid providers. The report says:
“The lack of optimal financial manage-
ment and well-trained human resources,
poor training of legal-aid lawyers on
their duties and responsibilities, inade-
quate performance monitoring and
absence of mechanisms to gauge cus-
tomer satisfaction hamper the function-
ing of LSIs (Legal Services Institutions)
to a great extent. A bigger concern has
been ensuring the quality of services
provided which is directly linked to the
training, documenting, reporting and
monitoring of legal-aid providers.
Monitoring and mentoring committees
either don’t exist and if they do, their
functioning is sub-par.”
One of the key lacunae is the uneven
organisational practices in the delivery
of legal services across districts and sub-
divisions. Several states, such as Tripura,
West Bengal, Telangana, Chhattisgarh,
Gujarat and Uttar Pradesh, are yet to
establish District Legal Services Autho-
rities (DLSAs) in all their judicial dis-
tricts. As of 2018, 664 DLSAs existed,
but sanctioned full-time secretaries to
DLSAs stood at 603 with actual app-
ointments at 525 only—a deficit of 139
to 664 existing DLSAs. Further, as per
2019 data, there is an apparent uneven
distribution of paralegals as well. The
report says, “Para-legal volunteers
(PLVs) serve as the bridge between peo-
ple and the legal-aid system. 22 of 36
states and Union Territories average less
than 10 PLVs per lakh population.”
Gender diversity is another crucial
issue while extending legal assistance in
India which has socio-cultural barriers
for a majority of women. Of 63,759
panel lawyers and 69,290 paralegal vol-
unteers (PLVs) working with LSIs
across the country, only 18 percent are
women. The report states: “Amongst the
eighteen large and mid-sized states,
Kerala ranks highest (40 per cent) fol-
lowed by Karnataka (30 per cent) and
Maharashtra (27 per cent). Rajasthan,
Odisha and Uttar Pradesh all have less
than 10 per cent. Amongst the seven
small states, Meghalaya ranks the high-
est (54 per cent) and Arunachal Pradesh
the lowest (15 per cent.).” Inevitably, the
burden of all this falls on the public.
There is, again, a deficit in legal serv-
ice clinics within jails. Subject to finan-
cial ability, every jail must house a legal
service clinic. There were 1,062 legal
service clinics (2017-18) in 1,412 jails (as
of December 2016). About 3,04,000
persons approached these clinics, of
whom 71 percent were provided legal
assistance. Amongst the large states,
Gujarat has the most legal service clinics
in its jails—48 clinics in 27 jails. Punjab
has 32 clinics in 26 jails; Chhattisgarh
Legal-aidranking
Kerala
Haryana
Punjab
Telangana
Maharashtra
Gujarat
Karnataka
Chhattisgarh
Madhya Pradesh
Andhra Pradesh
Rajasthan
Tamil Nadu
West Bengal
Jharkhand
Odisha
Bihar
Uttarakhand
Uttar Pradesh
Goa
Mizoram
Himachal Pradesh
Sikkim
Tripura
Meghalaya
Arunachal Pradesh
6.58
6.09
5.84
5.58
5.43
5.30
5.22
5.13
4.98
4.93
4.67
4.65
4.64
4.63
4.61
4.52
4.46
2.50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
1
2
3
4
5
6
7
5.47
4.66
4.60
3.30
3.05
3.03
2.67
Small states

has 34 in 30 prisons. Kerala, Maharash-
tra and Uttar Pradesh have less than
half the number of clinics required.
Jharkhand, Odisha, Tamil Nadu and
West Bengal do much better, with clin-
ics nearly matching the number of jails.
Barring Sikkim, most small states with
fewer jails to cater to, are exceeding or
nearly reaching one clinic per jail.
There is also the issue of receiving
funds and their optimum utilisation. In
2017-18, six states and UTs had no funds
allocated from their budgets, whereas
Nagaland, Arunachal Pradesh, Manipur
and Tripura saw less than 20 percent
being provided by their state govern-
ments. Uttar Pradesh got 14 percent
while Andhra Pradesh received more
than 80 percent.
Overall, the report is a sad commen-
tary on the government’s lack of enthu-
siasm to tackle vacancies, outdated legal
framework and poor infrastructure,
among other issues. Even with sporadic
attempts by the Legislature, Executive
and Judiciary, the shortfalls in the over-
all justice system are too many.
There is an urgent need for an app-
ropriate authority to monitor the quality
of legal assistance offered in the existing
infrastructure and find ways to work on
the infrastructure itself. To a great ex-
tent, the delivery of justice is directly
proportional to the investments made in
infrastructure, equipment, personnel
recruitment, retention, quality training,
and so on.
The authors of the India Justice
Report 2019 have clearly noted: “The
system is also deliberately kept under
the aegis of the judiciary without execu-
tive interference on the plea that there is
know-how as well as less opportunity
for over-bureaucratisation.”
THE SEVEN NUDGES
The recommendations made in the
report include:
1. Undertake a cost-benefit analysis that
quantifies the cost of increasing human
resources against the economic price of
failing to address registered crime, dis-
order, incarceration and judicial delay
caused by high workloads and inade-
quate manpower. Based on this analysis,
fill vacancies on an urgent footing.
2. When filling vacancies, ensure that
the representation of women, SCs,
OBCs, STs and religious minorities is
increased to assure that the make-up of
the justice system reflects the diversity
of the society it serves.
3. Increase the availability of justice
services in rural areas so as to reduce
the present disparity in accessing justice
that exists between rural and urban
populations. This includes prioritising
the availability of trained lawyers and
paralegals across poorly-served areas.
4. Ensure budgetary allocations to every
segment of the justice system (particu-
larly judiciary and prisons). Keep pace
with increases in costs.
5. Each pillar must have open systems to
periodically review performance; identi-
fy issues that must be tackled; arrive at
short-term and long-term plans of ac-
tion through a consultative process with
experts and key stakeholders; closely
monitor the implementation of the plan;
and regularly report on the activities it
undertakes.
6. Improve transparency all the way
through the justice system by ensuring
the publication of verified, disaggregat-
ed, accurate and timely data that is
seamlessly serviceable for informing
policy and practice across governance.
7. Ensure that periodic empirical
research is sanctioned by the govern-
ment to be undertaken in an independ-
ent manner.
— Infographics from India Justice
Report, Tata Trusts, New Delhi, India (2019)
Pendencyin
lowercourts
Data source: Data from National Judicial Data Grid scraped by Daksh
Note: Data not available for Arunachal Pradesh.
Bihar| 39.5
Odisha| 38.0
UttarPradesh| 37.8
WestBengal| 32.1
Gujarat| 27.2
Maharashtra|23.1
Rajasthan|22.0
Jharkhand|21.3
Uttarakhand|11.0
Chhattisgarh|10.3
AndhraPradesh| 9.2Telangana| 9.2
MP| 8.1
Kerala| 7.0
Punjab| 2.7
Haryana| 1.1
Sikkim|0.4
Mizoram|10.1HimachalPradesh|11.0
14.1|Goa
21.9|TripuraMeghalaya|26.0
TamilNadu|16.8
Karnataka|13.9
Cases pending in
subordinate courts
for over 5 years
(%, 23 August
2018)
Small states
Large and
mid-sized
states

T
here is general acknowledgment
that the most influential person in
the Indian media is Uday Shan-
kar, head of Star India, once owned by
Rupert Murdoch and now under the
Walt Disney Company umbrella. Last
week, while delivering the AAAI Subhas
Ghosal Memorial Lecture 2019, he
spoke about his journey and achieve-
ments as head of the network that has
continuously been the broadcast indus-
try leader.
But what he left unsaid was the
churning the broadcasting giant is go-
ing through. Three top executives have
left in recent weeks, most notably, Star
and Disney India Country Manager
Sanjay Gupta, who left last week to join
Google. Earlier, Hotstar CEO Ajit Mohan
quit to lead Facebook in India. Other re-
signations included Amit Chopra, presi-
dent, ad sales, and before him, Gayatri
Yadav, president, consumer strategy
and innovation.
Coincidentally, the Disney takeover
was in March this year and clearly the
transition is not smooth. In a tweet, me-
dia commentator Vanita Kohli Khande-
kar who has written a book, The Making
of Star, said, “Meeting the targets on
the business plan Disney bought into
probably gets tougher.”
Media Watch
T
he BJP’s political hegemony has
been stopped at the Great Wall
of the Vindhyas. Amit Shah, as
party president, had tried every trick in
the electoral book to break that barrier,
succeeding (dubiously) in Karnataka
where it is on shaky ground after the
Supreme Court verdict last week. Now,
with elections looming in Tamil Nadu
and Kerala, the party has launched a
PR exercise to win over journalists,
based in Delhi, who represent media
outlets in south India, many quite influ-
ential in impacting voter decisions.
Last week, the party invited journal-
ists from the South for a meeting, the
first time it has done so. The meeting,
attended by 70 reporters from Tamil
Nadu, Andhra Pradesh, Kerala, Telan-
gana and Kerala, saw BJP national
General Secretary Muralidhar Rao ask-
ing if they faced any problems. The
unanimous verdict was that the BJP
conducts all its press conferences in
Hindi and its press releases are also in
the same language, which is a prob-
lem for many journalists from the
southern states. Rao promised that
the party would hold a press confer-
ence in English after the regular one,
and the same would be the case with
press releases.
The other issue raised was that
BJP leaders favoured north Indian
journalists and spoke in Hindi, a com-
plaint that Rao promised would be
looked into. Unlike in the north, the
media down south has been largely
critical of the BJP government, includ-
ing the prime minister.
Southern Discomfort
J
ournalists in Srinagar, facing an
internet blackout for the last 100
days, are forced to use the gov-
ernment-run Media Facilitation Centre
to file stories, that too after standing in
queue for hours. Now, the powers-that-
be have made it more difficult for
them—a new rule bars freelancers and
those who work for web portals from
using the centre’s services.
The logic escapes everyone, like
most things in the newly-formed union
territory, but most mediapersons see it
as yet another tactic to put as many
obstacles as possible in the way of
journalists reporting from Kashmir. Even
those working for periodicals are
allowed to show up once a week, and
not daily, which stops them from filing
for the online portal of the media house
they represent. Aakash Hassan, who
works for News18.com, tweeted: “They
told me that freelancers and those who
work for news portals are not allowed.”
In another tweet, he said: “I have been
barred from the Media Facilitation
Centre—the only place for journalists to
access the internet in Kashmir. The lat-
est order is in keeping with the centre’s
attempts to curtail stories emanating
from Kashmir.”
The Times of Srinagar
Star Burst
Uday Shankar (left) and Sanjay Gupta

Supreme Court/ Dying Declaration
ELYING on various land-
mark precedents, the
Supreme Court has reiter-
ated that where a dying
declaration is true, volun-
tary and correct, it should
not be rejected on the grounds that the
person who recorded it could not affix
his signature or thumb impression.
The bench, consisting of Justices
Indu Malhotra and R Subhash Reddy,
upheld the order of the Madhya Pradesh
High Court wherein the two accused
were charged and thereafter convicted
under Section 302 read with Section 34
of the Indian Penal Code on the basis of
two facts: First, when the witness has
turned hostile, his statement cannot be
discarded in its entirety for the reason
that he turned hostile, and second,
where there are two dying declarations
consistent with each other and in coher-
ence with facts that lead to conclusion of
guilt, only conviction is to be adjudicat-
ed and it cannot be vitiated merely
because the thumb impression or signa-
ture could not be recorded.
The facts of the case are thus: On
December 19, 1991, Ghansu Yadav filed
an FIR against the accused persons
wherein he stated that while he was
returning from a police station after fil-
ing a complaint against one accused for
beating his son, the two accused, who
were hiding behind the bushes, caught
him and beat him, causing serious
injuries on his hands, legs and head.
Thereafter, believing that Yadav had
died, the accused threw his body into a
canal. However, he regained conscious-
ness and cried out for help and passers-
by took him to hospital where he succu-
mbed to his injuries. The prosecution
witnesses, after examination-in-chief,
turned hostile during cross-examin-
ation. The FIR lodged was considered
the first dying declaration and another
one was recorded before an executive
magistrate. Both were made when
Yadav was fully conscious and in a fit
state of mind.
The sessions court convicted both the
accused persons of murder and sen-
tenced them to life imprisonment. The
accused then knocked on the doors of
the Madhya Pradesh High Court, which
dismissed the appeal and upheld the
finding of the sessions court. In doing
so, the High Court relied on the land-
mark precedent of Laxman v. State of
Maharashtra, wherein it was held:
“What is essentially required is that the
person who records a dying declaration
must be satisfied that the deceased was
in a fit state of mind. Where it is proved
by the testimony of the magistrate that
the declarant was fit to make the state-
ment even without examination by the
doctor, the declaration can be acted
upon provided the court ultimately
holds the same to be voluntary and
truthful. A certification by the doctor is
ThumbSignal
Theapexcourtreiteratesthatadeclarationgiveninaproperstate
ofmindcanbemadethebasisforconvictionevenintheabsence
ofathumbimpressionorsignature
By Surabhi Mehra
R
Inher“dyingdeclaration”onDecember
21,Nirbhayahadstated:“Iwantthemto
behangedsothatnoothercriminalcan
dothiskindoftortureandill-treatment
toanyothergirl...”
A candlelight protest against the Nirbhaya gang rape in Delhi in 2012
Anil Shakya

VALIDITY ISSUE
Police recording a dying declaration
Haryana, Rabindra Kumar Dey v. State
of Orissa and Syad Akbar v. State of
Karnataka, where it held that “the evi-
dence of a prosecution witness cannot
be rejected in toto, merely because the
prosecution witnesses turned hostile.
The evidence of such witnesses cannot
be treated as effaced or washed off the
record altogether but the same can be
accepted to the extent that their version
is found to be dependable on careful
scrutiny”.
Another issue that came up before
the court was regarding the absence of
any thumb impression or signature on
the dying declaration. It upheld the ver-
acity of the dying declaration while
relying on the landmark precedent in
Dharam Pal & Ors. v. State of U.P. In
this, it was held that “Section 32(1) of
the Indian Evidence Act deals with dy-
ing declaration and lays down that
when a statement is made by a person
as to the cause of his death, or as to any
of the circumstances of the transaction
which resulted in his death, such a
statement is relevant in every case or
proceeding in which the cause of the
person’s death comes into question.
Further, such statements are relevant
whether the person who made them
was or was not at the time when they
were made under the expectation of
death and whatever may be the nature
of the proceedings in which the cause of
his death comes into question. The
principle on which a dying declaration
is admissible in evidence is indicated in
the maxim Nemo Moriturus Praesumi-
tur Mentire, which means that a man
will not meet his maker with a lie in his
mouth”.
The court further said “ ...if we look
at the report dictated by the deceased in
the light of the aforesaid propositions,
it emerges that the names of the
accused and the important features of
the case have been clearly mentioned in
the report. It contains a narrative by the
deceased as to the cause of his death,
which finds complete corroboration
from the testimony of eyewitnesses and
the medical evidence on record...”
To press home the point, the Supre-
me Court quoted the case of Sukanti
Moharana v. State of Orissa wherein the
Court took the view that there is no rea-
son why a dying declaration which is ot-
herwise found to be true, voluntary and
correct should be rejected only because
the person who recorded it could not af-
fix his signature or thumb impression.
essentially a rule of caution...”
In addition to the above, the High
Court stated that “there was no inconsis-
tency in the statement made by the
deceased in the FIR lodged and the
dying declaration recorded by the
Executive Magistrate. The substratum of
both the dying declarations remained
consistent to the effect that both the
appellants had assaulted the deceased
with lathis on his head, hands and legs
when he was returning from Ishanagar
Police Station. The dying declaration
was corroborated by the medical evi-
dence that the appellants had inflicted
grievous injuries on the deceased, which
caused his death”.
T
he accused then appealed to the
Supreme Court. The apex court,
referring to the question of whe-
ther reliability can be attributed to the
statement of the witnesses who turned
hostile, observed that the statement of
witnesses made during the examination-
in-chief can be relied upon separately
even if their version was turned upside
down during cross-examination. The
apex court relied on the landmark deci-
sions in Bhagwan Singh v. State of
Thebench,consistingofJusticesInduMalhotraandRSubhash
Reddy,upheldtheorderoftheMadhyaPradeshHC,andreiterated
thatwhereadyingdeclarationistrueandvoluntary,itshouldnot
berejectedonthegroundsofabsenceofanysignature.Representative Image

Focus/ Health/ New Insurance Guidelines
EALTH insurance holders
are likely to get more well-
ness and preventive fea-
tures, including Outpatient
Department (OPD) consul-
tations or treatments, phar-
maceuticals, health check-ups and diag-
nostics, and discount vouchers in gyms
and yoga centres in a policy package as
part of the draft guidelines being framed
by the Insurance Regulatory and Deve-
lopment Authority (IRDA).
Some insurance companies have
reduced premiums and are offering dis-
count coupons to clients who join gyms,
quit smoking or live a healthy lifestyle,
including doing regular yoga. The idea
is to reduce hospital admissions and
severity of diseases.
The services proposed include “out-
patient consultations or treatments,
pharmaceuticals, health check-ups/diag-
nostics”, including discounts on these
services by redeemable vouchers. How-
ever, these open and direct incentives to
policy holders will also need strict moni-
toring in order to prevent unhealthy
competition and misuse.
Health insurance works on the prin-
ciple of statistics. The larger the number
of people who get insured, the greater is
the viability of any insurance set-up.
Insurance premiums are also decided on
the vital statistics of a country. For ins-
tance, in a population of 1.3 crore in
Delhi, 250 deaths occur every day. That
is taken into account along with the
number of beds available in Delhi, in-
cluding bed occupancy and the average
stay of a patient in a hospital. Nowa-
days, most insurance coverage reimburs-
es hospitals and doctors based on the
principle of DRG (Disease Related
Groups). In this, similar disease patterns
get reimbursement.
Take Ayushman Bharat Yojana. On
paper it says that it covers a family for
up to `5 lakh per annum. But this is not
true. Most treatment packages are
capped. For a family to spend `5 lakh a
year will, probably, require all five mem-
bers of the family getting admitted mul-
tiple times a year.
The average payout of an admission
in Ayushman Bharat Yojana is only
`20,000. Packages which provide
InsuringWellness
Domesticinsurancecompaniesneedtopromotetreatmentswhich
reducedependenceonmoderndrugsandinvestigations.
Internationalinsurancecompaniesreducepremiumsifyouarea
non-smokerorhavequitsmoking
Dr KK Aggarwal
H
UNI

courts or for administrative purposes.
Any registered practitioner who is
shown to have signed any such docu-
ment which is untrue, misleading or
improper, is liable to have his or her
name deleted from the register. Simi-
larly, under Indian Penal Code 193,
there is a punishment of up to seven
years for issuing fabricated documents
along with a fine.
Considering all this, some key steps
need to be taken to reduce the number
of people seeking treatment in hospitals.
LIC, the single biggest insurer in the
country, should join some other compa-
nies in promoting wellness and aware-
ness about emergency life-saving meas-
ures like cardiopulmonary resuscitation
or CPR.
IRDA should promote hospitals which
have wellness centres and also promote
yoga and meditation. All efforts should
be made by them to promote treatments
which reduce dependence on modern
drugs and investigations.
Insurance companies should reduce
premiums for those people who are fully
vaccinated. They should also bargain
with companies to provide vaccinations
at a discount.
Insurance companies should also pro-
mote annual health check-ups so that
diseases are diagnosed much earlier, lea-
ding to less expensive treatment. Ins-
tead of reducing premiums, many com-
panies provide free check-ups annually
for every three years.
IRDA needs to promote a one-drug-
one-company-one-price policy. Over 80
percent of the cost of treatment comes
from drugs and devices. The cost of the
same medicine may differ with the same
company marketing the drug under
three different brand names. DCGI, the
Indian drug regulator, does not differen-
tiate between generic-generic, generic-
trade and generic-branded drugs.
IRDA should also reimburse only
drugs, devices, diagnostics, reagents and
equipment on the national list of essen-
tial medicines. Currently, only some
drugs and devices are included. Reim-
bursement for laboratory investigations
is currently in the planning stage.
Any investigation or drug given from
the non-NLEM list must have a justifi-
cation from the hospital or the doctor.
Insurance companies like Medicare in
the US must also directly communicate
with doctors in India. US Medicare
has a weekly newsletter by which they
update knowledge of doctors with the
latest treatments as per the prescribed
guidelines.
—The author is president
Heart Care Foundation of India
and Confederation of Medical
associations of Asia
and Oceania
`1 lakh for treatment are for uncommon
diseases that afflict once in a lifetime,
for example a heart bypass.
Internationally, OPDs are covered
under yearly insurance but with a rider.
They do not cover dental treatments,
and drug prescriptions are with co-pay
(a fixed amount for a covered service
paid by a patient to the provider of serv-
ice before receiving the service). When-
ever there is co-pay, the chances of mis-
use of insurance policy is low.
T
he Medical Council of India’s
ethics regulation 7.7 can cancel
the licence of a doctor if he or she
is involved in creating any document
which amounts to fraud. Registered
medical practitioners are in certain
cases bound by law to give certificates,
notifications, reports and other docu-
ments signed by them in their profes-
sional capacity for subsequent use in
DIRECT INCENTIVE
(Above and left) IRDA’s new proposal will
offer discounts to insurers following a healthy
lifestyle which includes doing yoga regularly
Otherwellnessandpreventivefeaturesin
theproposedinsurancepolicyinclude
OPDconsultationsandtreatmentsand
healthcheck-upstoreducehospital
admissionsandseverityofdiseases.

Spotlight/ Shimla’s Book Café
ISITORS to Shimla make a
beeline for the Mall, the hill
resort’s main street, from
where they can enjoy a
view of the Ridge while sit-
ting on the iconic “Takka
Bench”. After clicking the obligatory
selfie, tourists generally head to the
Book Café, considered a must-visit land-
mark by many. This is not so much for
the piping hot beverages, yummy snacks
or the lovely books to browse through
there, but also because of the people
serving the customers and those behind
the counter.
The Book Café is managed by con-
victs serving life terms at Shimla’s Kait-
hu Jail, which is about seven km from
the Ridge, and all the bakery products at
the café are made by the prisoners.
Last month, residents and local liter-
ary figures were up in arms after the
Shimla Municipal Corporation (SMC)
declared it was going to float open ten-
ders to run the Book Café. The protests
revolved around the proposed move,
that many felt would be against the very
spirit of its formation, and would divest
the convicts of a tangible correctional
opportunity.
The inception of this café is a unique
story. In 2015, Rakesh Kanwar, the then
deputy commissioner of Kullu, noticed a
dilapidated government building en
route his office. Kanwar, known for his
unconventional ideas, was shocked to
learn that the building was Kullu’s pub-
lic library where reading enthusiasts
would congregate. He then decided to
transform the old library into a classy
book café.
The idea caught the imagination of
Pankaj Rai, posted as SMC Commiss-
ioner. The place where the Book Café
now stands was earlier a poorly main-
tained public toilet. Rai secured the
approval from the then mayor, Sanjay
Chauhan, to convert it into a café.
The site was renovated and the Book
Café was born, with books donated by
the locals, including Minakshi Chaud-
hary, Kanwar’s wife and author of Ghost
Stories of Shimla.
The café contains a diverse range of
books, including literary classics, and on
spirituality, poetry, general knowledge,
as well as children’s books.
However, the real change that Rai
brought about was when the director-
general of prisons and correctional serv-
PrisonersofFate
Amuch-lovedinstitutioninthehillstation,runbyprisonersserving
lifesentencesinthelocaljail,mayloseitsiconicstatus,thanks
tomyopicmunicipalofficials
By Govind Pant Raju
V
thestatesman.com

India Legal - 25 November 2019

India Legal - 25 November 2019

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