Price Jallikattu:

tion
t 0
a Opening a Judicial Pandoras Box
Invi `5

I L
www.indialegallive.com
February 13, 2017 ` 100

NDIA EGAL STORIES THAT COUNT

GLOBAL NIGHTMARE
Donald Trumps immigration crackdown creates chaos and misery
z WILL IT WITHSTAND LEGAL CHALLENGES? z ALARM BELLS OVER H-1B VISA BILL
Letter From The Editor
THE WEEK THAT IS
S
TARTING with this issue of India Legal our
fortnightly takes on a new avatarwe go
weekly. The transition, long in the making, is
logical and necessary. In the three years that
the relaunched version of our publication has been
on the stands and in your homes, the exigencies of
news gathering and presentation have palpably alte-
red. Thanks to a proliferation of digital news, the
news no longer waits for the next edition of your
newspaper, the newswire bulletin, or the evening or
early morning TV programme or a fortnightly.
It breaks here and now on your mobile phone,
your app, your desktop. India has not only kept pace
with these worldwide media trends but has also
shown path-breaking enterprise in many instances.
As an integral part of the Indian media scenario,
India Legal does not believe in playing catch-up ball.
We like to lead from the front in our chosen area of
endeavourlegally-oriented news and analysesin
order to continue to make the difference with the
stories that count as our public tagline says.
We started out as a fortnightly because bringing
out a politico-legal magazine with regularity
seemed at the time to be an onerous chore. Would
there be enough new stories every two weeks to fill all
those pages? Essays, legalistic briefs, case studies,
debates, and the like, yes. But then, we did not set
out to be a law journal or a text-book type tome
intended for law students or scholarly rumination.
What we set to become was a hard-nosed hard news
magazine with current events and court- and lawsuit-
driven breaking stories ruling our editorial pages.
As we trudged on, we discovered that the courts
and our organs of governance were a gold-field of
stories just waiting to be mined by editors who could
focus on them and reporters who could ferret them
out. And these stories touched every aspect of
the lives not only of the legal and judicial
community but also of every Indian citizen.
Touch any story making the headlines
and a legal angle simply jumped out at you
but you had to have the editorial dexterity to latch
on to it and tailor it to fit the niche perspective of
your endeavour. Take any story that comes to mind
the National Judicial Appointments Committee, the
behaviour of governors, BCCI, the allocation of coal
blocks and broadcast spectrums, rape laws, juvenile
justice, case pendency, decisions of the Election
Inderjit Badhwar
Commission, cyber censorship, cleaning up the
Ganges, qualification of electoral candidates, the fight
for party symbols, the death penalty, public interest
litigation, Green controversies, demonetisation, dates
for presentation of the Budget, cases of judicial mis-
conduct Jallikattu.You get the idea.
The courts, especially our Supreme Court with its
changing justices, have been on an overdrive.
Understaffed, overworked, and bearing the brunt of
public criticism, the courts have, nonetheless, been a
critical balancing mechanism trying as best as they
can to maintain the constitutional checks and bal-
ances which keep this Republic and its government
of the moment from going into a tailspin.
I
t was obvious that having created a niche prod-
uct along with sister concerns like APN News
and our three major websites along with a social
media team and an editorial squad now fully able
to grasp the niche focusa fortnightly would simply
not be able to keep up with all the news stories we
wanted to break. It is frustrating to have a great
exclusive legally-oriented story on your hands and
then to have to wait for another fortnight to break it
because the current issue cannot accommodate it.
Also, when the Supreme Court is in session and issu-
ing rapid-fire decisions by the minute from all its
courtrooms, youve got to match that speed with your
own editorial prowess which can become frustrating
unless youre doing it on a weekly basis.
A weekly has its own energy, its own electricity
and if produced with editorial finesse, panacheit
quickens the readers pulse. As I am sure this issue
will do. Our cover story is an American story which is
a world story and an Indian story with massive inter-
national legal and constitutional implications for
global politics. Donald Trumps Executive Order on
immigration has caused a global explosion whose
shockwaves have spread from Somalia and Iraq to
Americas Silicon Valley and Bangalores IT hub. Our
coverage includes contributions from some of the
best writers across the worldthe human, legal,
political, economic fallout.
And we bring you this package in our first weekly
edition within the very week that these earth-shatter-
ing geopolitical events have begun to unfold.
editor@indialegalonline.com
| INDIA LEGAL | February 13, 2017 3
 FEBRUARY 13, 2017 SPOTLIGHT PROBE
28

Contents
Peoples Power Wins Media in Murky
Waters 38
With the top court refusing to stay the new Jallikattu law, the
Editor Inderjit Badhwar Tamil Nadu government and its people have got an upper hand
Senior Managing Editor Dilip Bobb Did some journalists receive pay-
Deputy Managing Editor Shobha John
offs to influence the government in
Executive Editor Ajith Pillai
VOLUME. X the AgustaWestland deal?
Contributing Editor Ramesh Menon ISSUE. 13
Associate Editors Meha Mathur,
Sucheta Dasgupta
Deputy Editor Prabir Biswas
Staff Writers Usha Rani Das, STATES CRIME
Karan Kaushik
Senior Sub-Editor Shailaja Paramathma
Price of Meghalayas
Art Director
Deputy Art Editor
Senior Visualizer
Anthony Lawrence
Amitava Sen
Rajender Kumar
Honesty 40 Shame 42
Graphic Designer Ram Lagan By transferring four SPs, the MP The involvement of a powerful
Photographers Anil Shakya, Bhavana Gaur government has violated apex court politician in the repeated rape of
Photo Researcher/ Kh Manglembi Devi guidelines which say IPS officers a minor has exposed a thriving sex
30
News Coordinator
Production Pawan Kumar
Anatomy of a Protest should have a fixed two-year term in
field postings
racket in this hill state and
embarrassed the government
Managing Editor (Web) Parsa Venkateshwar Rao Jr The Marina Beach stir was a reassertion of Tamil pride and a
Editor (Content & Planning) Sujit Bhar
platform for releasing pent-up anguish over a gamut of issues
Senior Content Writer Punit Mishra
(Web) AVIATION
32
Technical Executive Sonu Kumar Sharma
(Social Media)
Technical Executive Anubhav Tyagi Respect the Constitution Flight Safety
When a court order is violated by people and a state bent on
at Peril? 44
CFO
Anand Raj Singh pleasing the electorate, upholding the law is a lonely battle
VP (HR & General Administration)
Lokesh C Sharma In a shocking answer to an RTI query,
Advertising
Valerie Patton
LEAD INTERVIEW the DGCA said it has lost all data
Mobile No: 9643106028, Landline No: 0120-612-7900
email: marketing@encommunication.org
Circulation Manager
Death of the American Dream 16 Skeptical but Hopeful 34
related to planes and pilot licenses in
August 2015. Will this compromise
RS Tiwari Donald Trumps order banning travel from seven predominantly Muslim nations is Dr Chintan Chandrachud, who has carved a niche for himself security and the lives of passengers?
Mobile No: 8377009652, Landline No: 0120-612-7900 separating families who have made every effort to follow US immigration law in law at an early age, analyses important judgments
email: indialegal.enc@gmail.com

Published by Prof Baldev Raj Gupta on behalf of E N Communications Pvt Ltd

and printed at Super Cassettes Industies Ltd., C-85-86 & 94, Sector 4, Noida, Distt. Bully-in-Chief! 19 LEGAL EYE
REGULARS
Gautam Budh Nagar, UP-201301. All rights reserved. Reproduction or translation in any
language in whole or in part without permission is prohibited. Requests for
The US presidents Executive Orders have shown him lacking understanding of Singur
46
global issues. Despite this, he forges ahead, leading to chaos and uncertainty Quotes ..............................6
permission should be directed to E N Communications Pvt Ltd . Opinions of
writers in the magazine are not necessarily endorsed by Redux Ringside............................7

20
E N Communications Pvt Ltd . The Publisher assumes no responsibility for the
return of unsolicited material or for material lost or damaged in transit.
All correspondence should be addressed to E N Communications Pvt Ltd . Barely Lawful Though Mamata Banerjee once
stopped the Nano plant from coming
Courts ...............................8
Dilli Durbar......................13
OWNED BY E. N. COMMUNICATIONS PVT. LTD. Is Trumps immigration ban legally tenable? It up in West Bengal, she herself is in a Briefs...............................14
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309 has been drafted to evade a clash with statute bind over a power project in Bhangar, Media Watch ..................49
Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411
but there is a way out Satire ..............................50
24
e-mail: editor@indialegalonline.com
website: www.indialegalonline.com
MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,
ITs Big Test Cover Illustration & Design:
ANTHONY LAWRENCE
Mumbai-400058 Indias Silicon Valley must remodel itself to
RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar, Cover Picture:
survive the impending H1B visa crisis UNI
Ranchi-834002.
LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,

26
Lucknow-226001.
PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak,
Opposite Lalita Hotel, Patna-800023.
Indias Options
ALLAHABAD: Leader Press, 9-A, Edmonston Road, Lobbying may be the only means left for the Follow us on Facebook.com/indialegalmedia
Civil Lines, Allahabad-211 001. and Twitter.com/indialegalmedia
Indian government to counter Trumps order

4 February 13, 2017 | INDIA LEGAL | February 13, 2017 5

 QUOTE-UNQUOTE

They are hiding behind the dazzle of a

number called the GDP which is being
questioned. But the people of India are not I stand with the people
dazzled by that number. gathered across the country
Former finance Minister P Chidambaram, on the tonight defending our values
latest Economic Survey, in The Times of India & our Constitution. This is
not who we are.
Former Secretary of State Hillary
Clinton, reacting to the ban on
immigrants and refugees from seven
Muslim nations, on Twitter
Age should not be a criterion for deciding the
utility of a person. There is a way of getting
rid of political leaders, and the Congress
should learn to be graceful in what they
do. No party where age and experience is
not valued will have a great future.
Former External Affairs Minister SM Krishna,
resigning from the Congress, in The Indian Express
Jao tum jeet jao, sarkar banao,
hum ab party banayenge (You
I pray that Trump also stops visas for win and form the government,
Pakistanis as I believe that it will help us I will now make a new party).
develop our own country. Nawaz Sharif Former state SP chief Shivpal Yadav,
after filing nomination from
goes abroad even for the treatment of Jaswantnagar in Etawah for UP polls
headache. If the US imposes ban (on
Pakistanis) he too will focus (on)
Pakistan and develop it.
I would have been
Pak Cricketer-politician Imran Khan, at
a party rally in Sahiwal
happy to lose too, to VERDICT
be honest. Theres no
draw, but if there People crushed by laws have no hope but to evade power. If the laws are their enemies,
was going to be
one, I would
they will be enemies to the law; and those who have most to hope and nothing to lose
have been very will always be dangerous.
It does not matter what you say or do, happy to accept a
attack me physically or verbally, I will draw tonight and
Edmund Burke, British parliamentarian, 1729-1797
voice what I feel. You mobs dont scare share it with Rafa
me, my voice will always rise over your (Nadal).
screaming and shouting. Tennis star Roger
Film-maker Anurag Kashyap, Federer, after winning the
countering trolls, on a Facebook post Australian Open

6 February 13, 2017 | INDIA LEGAL | February 13, 2017 7

 Courts
A national T
policy on
farmer
compensation
Do not interfere in
policy decisions
s long as these are sensible,
A the judiciary should not inter-
fere in the policy decisions of the
government, the Supreme Court
ruled. The Courts observation
came while it was adjudicating
the fairness of the verdicts given
by Delhi and Madras High Courts.
Both had struck down the cen-
tres policy that made a distinc-
tion between the physically handi-
capped candidates in the General
and OBC categories, for reservation
benefits in the civil service exams held
in 2007. While the physi-cally handi-
capped examinees in the General cate-
gory were allowed to appear in the
exam seven times (up from four
chances earlier), no such provision was
given to those in the OBC category.
8 February 13, 2017
he Supreme Court expressed con-
cern that a national policy was yet to
be evolved to compensate the families
of farmers who committed suicides due
to crop failure. The Court observed that
the issue was of national import. It was
responding to a plea filed by an NGO,
Submit report on
Citizens Resource and Action Initiative,
on the matter.
police vacancies
he Supreme Court sought within
The petition also drew the Courts
attention to the Gujarat High Court dis-
T four weeks a report from home
secretaries of all states on the existing
missing a writ petition seeking relief for
vacancies across all levels of the police
around 600 farmers who had ended
force and what the governments had
their lives between 2004 and 2012. The
done so far to fill them.
High Court had ruled that as a policy
The Court asked them to furnish the
matter it was up to the government to
information in affidavits and warned
take a call.
that in case they failed to do so, the
Considering the importance of the
secretaries would be summoned before
matter raised in the plea, the Court
the Court. The centre was told to pass
transferred the petition into a PIL suo
on the direction to the respective state
motu and demanded a response from
home secretaries.
the centre, states and the union territo-
The order came in response to a PIL
ries within four weeks. It insisted that
that sought the Courts intervention on
all must come together and come up
the abysmal strength of the force.
with a national policy.
The fact that many states had not
taken its earlier directionto update it
on vacanciesseriously was not taken
kindly by the Court. The bench dealing
with the petition discovered that it was
only in January 2015 that the Court
was informed about existing vacancies
by the centreclose to five lakh. The
PIL claimed that going by the 2015
numbers, 24 percent of the sanctioned
strength was still to be filled up.
Dylan Quoted in Kerala
I t was probably the first time that a
court in the country quoted Bob
Dylan in one of its verdicts. On January
The Court found that the policy deci- 12, a Kerala High Court judgment on
sion was fair enough and there was the states liquor policy was noticed for
nothing to show that it was unreason- its erudition and witty references.
able or arbitrary. It observed that the The order was delivered by Justice
high courts should have stayed away Dama Seshadri Naidu with Justice PR
from the matter. The judiciary could Ramachandra Menon concurring with
pitch in only if the policy decision viola- him. The petitioner, Anoop, had chal-
ted Article 14 of the constitution, the lenged the liquor policy of the govern-
Court observed. ment, leading to the shutting down of
Ganga cleaning
issue now with NGT
T he National Green Tribunal (NGT) was given the
additional responsibility by the Supreme Court to
keep a close a tab on untreated sewage being relea-
sed into the river Ganga. The apex court had earlier
asked the green panel to inspect steps taken by the
centre to check the flow of industrial effluents and
municipal solid wastes.
It took into account the fact that the entire issue of
Ganga cleaning was being handled by NGT. The NGT
was directed to submit a report on the progress made
on both counts and the problems it faced.
The Courts decision came in after petitioner
MC Mehta alleged in his PIL that the centre had done
virtually nothing despite numerous claims being made
by it on keeping Ganga pollution free. The top court
has been checking the centre's efforts for more than
30 years now.
retail outlets in a phased manner.
The judgment begins as follows:
To drink or not to drink. That is the
Hamletian dilemma of Anoop, the
appellant. He has chosen to drink. He
rails at the rules that obstruct his pas-
sion for the pint, his right to choose, to
be let alone, to privacy, and, of all, his
right to life. He claims that the laws
prohibiting alcoholic drinks fall foul of
the fundamental rights guaranteed to a
citizen, to him. Do they? Our answer:
No.
It even goes on to talk about alcohol
CBI chief to
head SIT
against
Ranjit Sinha
onvinced on the face
C of it that former CBI
chief Ranjit Sinha did
misuse his power and
position, the Supreme
Court asked the new CBI
chief Alok Verma to investigate alle- made out against Sinha for allegedly
gations that Sinha tried to derail the conniving with certain accused in
coal scam probe. the coal scam.
This is the first time that India On the impartiality of the CBI
will see the top investigation body investigating its former chief, the
looking into corruption charges Court said that there was no need
against its former chief. The Court for an outside team as there has
also asked Verma to set up an SIT been a change of guard in the CBI.
in this regard and ordered that he However, Sinha pleaded against
will head it. Two other officers of the apex courts direction and want-
CBI will also be part of the SIT. ed it to be recalled. He drew a
It was proved earlier that Sinha parallel between his case and the
had met suspects in the coal scam Birla-Sahara diaries case in which
at his home several times, who rep- the apex court had dismissed the
resented private firms that had got proof submitted that revealed the
access to coal blocs out of turn, names of prominent politicians who
during UPA-I. had allegedly received pay-offs.
Last year, the visitors book from His lawyer argued that the top
Sinhas official residence was pre- court could not have a different
sented to the judges and they had
authenticated it.
criteria for entries mentioned in
Sinhas diary.
The Court, while passing the The apex court finally agreed to
order, said: Prima facie, a case is hear the matter again.
and its evolution. The ripest fruit is the
sweetest, the most calorific; the sweet-
est fruit is the closest to getting rotten,
fermented. So, the tell-tale scent of fer-
mentation was the surest way to a food
at its most calorific. That is how the
journey began.
The Court dismissed the case and
offered solace to Anoop through Dylans
lines: [A]nd dont speak too soon/For
the wheels still in spin/And theres no
telling who that its naming/For the loser
now will be later to win/Cause the times
they are a-changing.
| INDIA LEGAL | February 13, 2017 9
 Courts
No need to postpone
Union Budget
T he Supreme Court dismissed a PIL req-
uesting the postponement of the Union
Budget in view of assembly elections in five
states, starting from February 4. The Bud-
get has been advanced to February 1 from
the earlier February 28, starting this year.
A three-judge bench dealing with the
petition against presentation of the Budget
before assembly polls concluded that since
it was a Union Budget, it would not affect
the assembly polls. The PIL was filed by
advocate ML Sharma.
The bench ruled that state is state...
Central Budget is very different from state.
It has nothing to do with the state election.
It observed that if Budget postponement
was granted on the plea of affecting assem-
bly poll results, then Union Budget would
never see the light of the day, considering
that assembly elections were held through-
out the year. According to the Court, there
was no case made out and the petition was,
therefore, dismissed.
Can govt dole out religious
land to any community?
T he Supreme Court will examine whether
it is proper for a government to give out
land to a particular community for religious
purposes. The case in point was the deci-
sion taken by the Tamil Nadu government in
September 1986 to allot free land to a
10 February 13, 2017
No DND toll tax
as of now
n continuing with its earlier stand, the
I Supreme Court refused to overrule the
October 2016 verdict of the Allahabad
High Court, ordering Noida Toll Bridge
Company Ltd (NTBCL) not to collect toll
tax from people using the DND Flyway.
The flyway connects Delhi with Noida.
The Court, however, made it clear that
the ruling was valid only till the time the
Comptroller and Auditor General (CAG)
ascertained whether NTBCL had actually
recovered the cost of constructing DND
Flyway and submitted a report. The CAG
had pleaded for eight weeks time to
respond and the request was granted.
Appoint
NHRC
members
n a stern order, the
I Supreme Court direct-
ed the centre to fill the
post of the director
general of National
Human Rights
Commission (NHRC) within seven days.
It also ordered that members of NHRC be
appointed within four weeks.
Earlier, the Court had agreed to look
into the legality of whether a full-time
politician could become a member of
NHRC. The selection committee had
Muslim cultural association in a village near
Chennai, for building a mosque. The state
government had approved the recommen-
dation of the land administration commis-
sioner in this regard.
A petition had been filed by the
Federation of Chennai Suburban (South)
Welfare Association in the Supreme Court
against the decision. Earlier, the Madras
High Court had rejected a separate petition
Earlier too, in November 2016, the
apex court did not grant any relief to
NTBCL against the Allahabad High Court
order of October. A PIL was filed by
Federation of Noida Residents Welfare
Association in the Allahabad High Court
objecting to the toll tax that was being
charged as user fee. NTBCL had app-
roached the apex court challenging the
judgment of the Allahabad High Court.
zeroed in on BJP vice-
president Avinash Rai
Khannas name as a
member but a PIL had
been filed in the apex
court against the move.
However, Khanna with-
drew his name from the
post and the Court was
spared from taking a
stand on the issue.
But in the latest verdict, the Court
pulled up the centre for its laxity and cau-
tioned that it will be in trouble if the
matter is heard and an order passed sub-
sequently. Why dont you appoint some-
body? You have to do it the Court said,
coming down hard on the centre.
Divorce by Church
Court invalid
hurch courts granting divorce to catholic
C couples is not legally tenable, the
Supreme Court ruled while dismissing a peti-
tion by an advocate from Bangalore. The
petition was awaiting a decision for the last
four years.
An upshot of the verdict is that a divorce
awarded by a church court must be ratified
by a legal court verdict following the tenets
of the Christian Divorce Act, 1869.
Clarence Pais, a Catholic advocate, had
pleaded that it was the Catholic Church that
decided on matters relating to marriage and
divorce as per the Christian Marriage Act and
the Code of Canon Law, respectively, but the
law does not sanction this. He contended
that as a result, persons who had remarried
were subjected to legal proceedings under
bigamy charges. He also argued that Canon
law falls within the realm of personal laws of
Catholic Christians.
The petitioner pleaded that hundreds of
spouses will have to face prosecution, jail
and fine in the absence of any legal sanc-
tion. However, the centre contended that
divorce was not an area which the Church
Courts could decide upon.
above the fine mentioned in the Motor
the traffic police. The High Court had
on the issue and supported the state govern-
ment on the ground that a mosque needed
to be built considering that more than 100
families in the area had to offer their prayers
at a mosque in faraway Alandur.
The bench dealing with the petition let it
be known that it will take a decision in
everyones interest and asked the apex court
registry to slot all the pending petitions in
this regard for hearing on March 20.
E-Committee. The commi-
ttee, set up in 2004, is
responsible for computeri-
sation of all judicial work
and framing of an IT policy
for the sector. Justice Lokur
was shunted out of the E-
Committee by the then CJI
TS Thakur and Rajasthan
High Court Chief Justice
(retd) Sunil Ambwani J was
given charge.
Justice Lokur was
appointed the top judge of
CJI brings back the committee in July 2012.
It was under his steward-
Justice Lokur ship that a National Judicial
Data Grid was set up for all
n a significant decision,
I the Chief Justice of India
(CJI) Justice JS Khehar
district courts in India.
Earlier, after taking
charge as CJI, Justice
annulled the removal of Khehar had brought back
Justice MB Lokur as the social justice bench,
the chief of the national removed by the former CJI.
Stiff penalty justified
atting for tougher laws for flouting of given the verdict in March 2007.
B traffic rules in the Capital, the
Supreme Court stood by a Delhi High
The top court dismissed a petition
that had challenged the High Court
Court verdict slapping an additional fine order. The centre apprised the Court that
of `500 for offences. This is over and the Motor Vehicle Act 1988 was in the
process of amendment. And the Court
Vehicles Act for each challan issued by held that only parliament could address
the concerns of the petitioner.
PIL for cleaning up in many national sports federations and
wanted the top court to order reforms
sports bodies
ore than 25 famous sportspersons
on the lines of those suggested by the
M pleaded for the Supreme Courts
intervention in cleaning up national
Lodha Committee be implemented in
other sports bodies as well. The National
Sports Development Code of India,
sports bodies. The petitioners included
hockey player Ashok Kumar, former
2011, needs to be amended to instill
integrity and ensure transparency, the
athlete Ashwini Nachappa, former crick- petition pointed out.
eters Bishen Singh Bedi and Kirti Azad, The bench dealing with the petition
among others. sought a response from the centre, the
The joint petition talked about mis- Sports Authority of India and the Indian
management, corruption and nepotism Olympic Association on the issue.
| INDIA LEGAL | February 13, 2017 11

Courts
Vinod Rai-headed
panel to manage T
the BCCI: SC
FIR against
Asaram Bapu
he apex court ordered an FIR
T and probe against godman
Asaram Bapu for submitting a false
document on his health status. He
had been pleading for bail in a sexu-
al assault case on medical grounds
but was not granted relief. Asaram
himself accepted the document was
fabricated. A report from the AIIMS
medical board also ruled that his
health condition was normal.
The Court slapped a fine of `1
lakh on Asaram for filing a frivo-
lous petition. It stood by its earlier
verdict and dismissed his interim
bail petition. It further said that the
probing officer must initiate criminal
proceeding against anyone found
guilty of misleading the Court.
12 February 13, 2017
SC relied on a mix of administrative ability and accountability,
historical authenticity, cricketing ability and fiscal discipline
he Supreme Court recently
announced a four-member panel of
administrators for the Board of Control for
Cricket in India (BCCI). Headed by former
Comptroller and Auditor General of India
Vinod Rai, the panel also includes histori-
an and cricket-buff Ramachandra Guha,
former skipper of the Indian womens
team Diana Edulji, and Infrastructure and
Development Finance Company CEO
Vikram Limaye. The head of the panel will
report to the apex court.
With the ICC executive meeting sched-
uled for the first week of February in
Dubai, where the BCCI is required to send
its representatives, the apex court
appointed BCCI officials Amitabh
Choudhary and Anirudh Chaudhry, as
well as Limaye for the job.
Both Amitabh and Anirudhs names
were suggested by BCCI. The Court said
Petitioners
banned from SC
wo petitioners were banned from
T filing any PIL in the apex court
in future unless they were person-
ally grieved. The Court was livid
as they had made CJI JS Khehar,
former CJI TS Thakur and President
Pranab Mukherjee as parties in
their case.
Anindita and Anirban, involved in
a criminal case in Mumbai, had
challenged the Bombay High Court
decision in the apex court. But they
could not get a favourable verdict
from a bench headed by Justice
Khehar in 2016. Even the review
petition was rejected. The Court felt
that their action was an assault on
the Constitution and the PIL was
absolutely malicious.
Compiled by Prabir Biswas; Illustrations: UdayShankar
that their role was only restricted to
attending the ICC meeting on behalf of
the BCCI.
As per the Courts instructions, the
four-member panel appointed by the
board will find out whether Lodha
Committee recommendations had been
implemented by BCCIand to what
extentand submit a report to the Court
within four weeks.
Originally, nine names were proposed
by the amicus curiae panel of Gopal
Subramaniam and Anil Divan. The Court
thought this was too many and had
deferredat the insistence of Attorney
General Mukul Rohatgi, appearing for the
governmentthe final decision to
January 30. Rohatgi had argued that the
BCCI and the government should also
be allowed to submit their own choice
of names.
NGT defers
hearing on manja
he counsel for the Gujarat govern-
T ment informed the National Green
Tribunal on February 1 that the state
will oppose the ban on manja
cotton thread coated with glass, used
in kite flying.
The state counsel claimed that the
game has been enjoyed for genera-
tions and doesnt affect the environ-
ment. The counsel further submitted
that if allowed, he will bring the glass
coated thread before Tribunal and
break it without suffering any injuries.
The Tribunal was hearing a plea
filed by PETA, seeking a nation-wide
ban on all forms of sharp kite-flying
strings as they are lethal to humans
and animals. It adjourned the matter
for February 6.
An inside track on happenings in Lutyens Delhi
THE DAMOCLES SWORD
Theres panic and anxiety and Raj Kumar Dewangan
among the bureaucracy and (1992 batch). A day later, a
police officers with the crack- senior IAS officer, K
down on corruption now a pri- Narasimha, was similarly dis-
ority with the NDA govern- missed. He is facing a CBI
ment. In the last two weeks, inquiry for allegedly possess-
three senior officialstwo IPS ing assets more than his
and one IAShave been known sources of income.
sacked, ostensibly under the The centre is clearly intent on
head of non-performance, a sending a message that a
euphemism for allegations of Damocles Sword hangs over
corruption. The two IPS offi- the heads of these officers,
cers dismissed were Mayank regardless of their rank or
Sheel Chohan (1998 batch) years of service.
HOLE IN ONE
Anyone looking to get in touch with Gandhi
son-in-law Robert Vadra can find him in
one of the capitals exclusive watering
holesthe Delhi Golf Club. Known for his
obsession with working out, Vadra seems
to have discovered a new way to keep fit
golf. He can be found there on specific
days of the week, learning the finer
nuances of the game from buddies who
are members. The foursome usually take
a break and head to the terrace pub over-
looking the 18th hole for lunch. That seems
to suggest that Vadra will not have much of
a role in the upcoming UP elections where
his wife, Priyanka, is playing a leading role.
Delhi
Durbar
TATAS GET POLITICAL
Ratan Tata seems to be going all out to woo the
ruling regime. Ever since his spat with Cyrus
Mistry, Ratan has been actively wooing the pow-
ers-that-be and also lending the
government a generous helping
hand. Apart from his sudden
dash to Nagpur to meet RSS
chief Mohan Bhagwat, where he
also garlanded a statue of RSS
founder KP Hedgewar, at least
three Tata companiesTCS, Tata
Teleservices and Tata Business
Support Servicesare supplying
free phone line capacity for the
new government helplineCash-
Mukt Bharat Abhiyan. This is the
brainwave of Niti Aayog boss
Amitabh Kant; it educates callers
on how to switch to digital payments. This is a
major change from the days when the Tata
group kept a safe distance from politicians.
AMARINDER MAKES PEACE
Capt Amarinder Singh, scion of the Patiala
royal family, has made peace with his party's
high command, a factor for stability in the
often fractious state party unit. Captain Saab
has had a love-hate relationship with the Dilli
Durbar ever since he quit Congress after
Operation Blue Star and joined the Akalis, only
to rejoin and become CM for a term. For one
thing, Delhi usually kept him guessing about
how deeply Congress chief Sonia Gandhi
supported him against his party rebels. For
another, Amarinder, a favorite "nephew" of
Indira Gandhi, and a school buddy of Sanjay
and Rajiv Gandhi, considered the young
Rahul an upstart in politics and couldnt rec-
oncile himself to the position bequeathed to
him by Sonia. But Amarinder is now said
to be better disposed to Rahul, whom
he thinks has matured politically. He
is even accepting his advice on
some Congress candidates and seat
allocation for the upcoming elections,
including Navjot Sidhu, which bodes well
for the partys performance.
| INDIA LEGAL | February 13, 2017 13
Briefs

IDBI officials held T he Central Board of Investigation

in Kingfisher case
Meghalaya Governor
steps down
eghalaya Governor
M V Shanmughanathan has
resigned after employees of the Raj
Bhavan wrote a letter to the Prime
Minister, Union Home Minister and
Chief Minister, accusing him of turn-
ing the prestigious office into a ladies
club. In the letter, the employees
alleged that the 67-year-old governors
activities hurt the decorum and pres-
tige of the Raj Bhavan as well as the
sentiments of those employed there.
Among the 11 allegations that were
made in the letter, the most grave one
has arrested seven former officials
of IDBI bank ltd, along with four for-
mer executives of Kingfisher Airlines,
in connection with the Vijay Mallya
loan default case. Among those
arrested are former chairman of
IDBI, Yogesh Aggarwal, and former
CFO of Kingfisher Airlines, A
Raghunathan. Three former execu-
tives of the defunct airlines have also
been taken into custody. The investi-
gating agency has alleged that the
officials had approved loans of over
` 900 crore without the required
sanctions. The agency registered a
case against Mallya and others after
receiving a complaint from the State
Bank of India, which is one of the 17
banks that gave loans to Kingfisher
Airlines.
was that the employees had to go
through severe humiliation, mental
stress and torture since the time
Shanmughanathan had taken over.
They alleged that the governor hired
only women. Only female candidates
were called to interview for the post of
Public Relations Officer in November
2016 and later, as a formality, five
men were called for interviews.
Govt-SC collegium
tussle continues
he tussle between the govern-
T ment and the Supreme Court
Collegium over the appointment of
judges to the Allahabad High Court
has still not been resolved as the
centre has skipped a list of at least
24 recommendations made by the
collegium once again. However, the
government appointed 20 judges for
two high courts in three separate
notifications, dated January 13 and
14. Sixteen additional judges of
Allahabad HC, whose terms were
coming to an end, were made per-
manent and four new judges were
appointed for Andhra Pradesh and
Telangana HC. The government,
however, deferred with the recom-
mendations made from the bar of
Allahabad and Lucknow benches.
Kejriwal booked for
bribe remark
he Goa police filed a non-cogniz-
T able case against Delhi Chief
Minister Arvind Kejriwal after the
Election Commission directed the
Goa chief electoral officer to take
necessary legal action against him
for instigating the public to accept
bribe for voting. The Aam Aadmi
Sadhvi acquitted in
murder case
S adhvi Pragya Singh Thakur
has been acquitted with
seven others in the 2007 RSS
pracharak Sunil Joshi murder
case by a Madhya Pradesh
court.
The contradictory evi-
dences by police and NIA in
the case raised serious doubts,
first additional district and
sessions judge of Dewas Rajiv
Madhusudan Apte said. Joshi,
once a close aide of the sadhvi,
was shot dead on December
29, 2007.
Thakur, also an accused in
the 2008 Malegaon bomb
blast case, is in judicial cus-
tody, undergoing treatment in
Bhopal. The others acquitted
include Harshad Solanki,
Vasudev Parmar, Anandraj
Kataria, Lokesh Sharma and
Jitendra Sharma.
Fulfilling another of his
Trumps tweet disaster
sets off a debate
Trump withdraws Russia softens
domestic violence law
from trade deal
A n official statistic shows that a
quarter of murders and serious
assaults in Russia take place at home.
However, a new bill drafted by MP
Olga Batalina decriminalises some
forms of domestic violence. It has
been passed by Russias lower house
of the parliament but still needs the
approval of the upper house and of
President Vladimir Putin. It reduces
the punishment for first-time offend-
ers to 15 days from the earlier two
years in jail and decriminalised
aggression against strangers, whereas
aggression within the family will be
considered a criminal offence. Also,
U S President Donald
Trump has signed
an executive order, for-
instructed the
Department of
Homeland Security to
assaults causing serious injury or
repeat offences within a year would
still be a criminal offence and will
mally withdrawing commence immediate carry potential jail term.
America from the Trans- construction of a 1,900-
Pacific Partnership mile long wall along the
(TPP) trade deal. It was, southern border with
in fact, one of the prom- Mexico. Another execu-
ises he had made during
his presidential cam-
tive order aims to tackle
the issue of undocu-
paign. The deal had mented immigrants
been negotiated by for- through deportation and
mer President Barack tripling resources for
Obamas administration. enforcement with
10,000 additional immi-
campaign promises, he gration officers.
France crackdowns
on soda refills
or if that violates the Presidential
Records Act that requires all commu-
R enewing its efforts to fight
obesity and diabetes, the
French government has banned
nications from or received by the presi- unlimited refills of sugary drinks.
dent to be preserved. The measure was adopted in April

EC, RBI clash municated that it did not

over cash
he Election Commission
T (EC) and the Reserve
Bank of India (RBI) were
involved in a rare clash
after the EC asserted its
constitutional mandate and
insisted that the RBI
should enhance the cash
withdrawal limit for candi-
dates in the upcoming elec-
tions. The RBI had com-
think that increasing the
cash withdrawal limit was
desirable or possible, after
which the EC wrote to the
bank saying: It appears
that the RBI had not
realised the gravity of the
matter. Article 324 of the
Constitution gives the elec-
tion watchdog the power to
issue a directive to RBI to
ensure compliance under
the Central Bank Act.
Party convener at a rally at Mapusa
told voters to ask for `10, 000 when
rival parties offer `5, 000, but vote for
AAP. Kejriwals party has questioned
the EC and stated that it was
harassing its officials on the orders
of other political parties.
O n his first full day as com-
mander-in-chief, US President
Donald Trump tweeted the follow-
2015, incorporated into the
Health Act of January 2016, and
came into force end of January
ing from his old Twitter account: I 2017. The number of overweight
am honered to serve you, the great or obese people in France is below
American people, as your 45th
President of the United States!
the European Union average but
it is on the rise. France had
Twelve minutes later, he deleted the already slapped a tax on sweet
said tweet and reposted it from his drinks in 2012. Now, the latest
new @POTUS handle, this time decree makes it illegal to sell
spelling honored correctly. unlimited amounts of drinks with
The deletion of the tweet raised sugar or sweetener at a fixed price
questions about whether Trump or for free.
can do that now as he is president Compiled by Karan Kaushik and
Shailaja Paramathma

14 February 13, 2017 | INDIA LEGAL | February 13, 2017 15

Lead/ Trump/ Executive Order on Immigrants

Hamad was born and raised. It is tradi-

The US Presidents tional in Sudanese culture for a new

mother to be surrounded by her own
mother and family after giving birth.

Travel Ban Wreaks O

Hassan stayed behind to work.

n January 30, Hamad and

Alma were supposed to land in

Havoc on Families, Detroit after being away for

three months. But on January 29, even
though the baby is a US citizen and eli-
gible to fly back, Hamad was stopped at

Especially Those the airport in Qatar and prevented from

traveling under an executive order that
bars foreigners from Sudan, Iran, Iraq,
Libya, Somalia, Yemen and Syria from

with Valid Visas entering the US for 90 days. (Citizens

The order banning travel from seven predominantly Muslim
nations is separating families who made every effort to
follow US immigration law
by Charles Ornstein, Terry Parris Jr and
Marcelo Rochabrun
and permanent residents are allowed in
but about 90,000 visa holders,
including those with tourist visas, are
not.)
I cannot leave to join my family,
and my family, they cannot come back
to join me, Hassan, 36, said. Its a rea-
lly difficult situation. Frankly we dont
know what to do.
The first reports about the executive
order, signed by Trump on January 27,
were about foreigners hoping to travel
UNI

P
RESIDENT Donald to the US for job opportunities, includ-
Trumps travel ban has ing interpreters who had worked for now afraid to leave the US and not be Daranis sister was waiting with the SHAKEN AND STIRRED
torn apart Dr Abubaker American forces. Now, it is becoming able to return; and dozens of stories in jacket at the airport. But when her There were widespread protests in the
US against the executive order to ban
Hassans family. A few clear that the order is separating fami- which families are being torn apart. mother landed at 7:45 a.m.on January
immigrants and refugees from seven
months ago, his wife, Sara lies of ordinary people whose mistake 28, it was too late. Muslim countries

Hamad, took their infant
daughter Alma from their Detroit home
to visit relatives in Qatar. Hassan is in
his second year of an internal medicine
residency program at Detroit Medical
Center, an inner-city hospital that
serves a low-income and minority com-
munity. He and his wife are citizens of
Sudan and theyre both in this country
on visasHassan on a J-1 for work-and
study-based exchange visitor programs
and his wife on a J-2 for dependents.
Together, they came to Detroit, where
Hamad gave birth in September, mak-
ing Alma an American citizen.
When the baby was a month-and-a-
half old, Hamad took her to visit her
family in Qatar, the country where
was to pick the wrong dates to travel.
Since January 27, ProPublica has
been chronicling the travel bans effects.
As part of that effort, weve asked those
impacted to get in touch. So far, nearly
150 people from all seven countries
affected by the ban have written in....
Even people outside of those seven
countriesMexico, Malaysia and
Pakistan, for examplewrote in to
express worry that their visas or green
cards would be challenged at some
point in the future, though no such plan
has been discussed publicly.
Submissions came from people here
legally that were visiting their home
countries and now are unable to return
to the US; people here legally that are
A
mong them was Shadi Darani,
who had left Iran to pursue a
doctorate degree in mechanical
engineering in Michigan and hadnt
seen her 68-year-old mother for two
years. Obtaining permission for her
mother to travel to the US had taken
nine months.
Daranis mother, Fatemeh Sheikhi,
left Iran aboard a Qatar Airlines flight
about 13 hours before Trump signed the
order. When she reached her first desti-
nation, Doha, in Qatar, she texted
Darani and her sister, who is studying
for her doctorate at the University of
Delaware, asking them to have a jacket
ready for her when they met in
Philadelphia.
My sister was crying and begging
the security to let her meet or call my
mom so she could at least explain to her
what is happening and calm her down,
Darani wrote in an email to ProPublica,
explaining that her mother doesnt
understand English well. But they
didnt allow it. Just feet away from one
another, after years, after so many days
and nights dreaming this moment.
An airline employee told Daranis
sister that they would be returning her
mother to Iran, but didnt allow her to
have any direct contact with her mother
and didnt disclose what flight her
mother would be put back on.
They took her phone, and we could-
nt even see her, Darani said. The only
thing airport officials did was to pass
on a necklace their mother had brought
as a gift. Darani said her sister has
been wearing it every day since as a
reminder of what happened and of her
moms love.
She said that the moment that she
was in Philadelphia and knew my sister
is there to pick her up, but the security
didnt let them meet was the worst
part. She said she felt heart-broken, des-
perate and devastated, Darani wrote in
her email.
Daranis mothers visa was canceled.
To come back, she would have to apply
for a new one once the ban is lifted.

16 February 13, 2017 | INDIA LEGAL | February 13, 2017 17

Lead/ Trump/ Executive Order on Immigrants
(Photo Courtesy: Abubaker Hassan)
IN HAPPIER DAYS
Dr Abubaker Hassan with his wife Sara
Hamad, who was stopped from flying to the
US at an airport in Qatar with the couples
infant daughter. Both are Sudanese citizens
Batoul Elamins mother didnt get as
far as the US. For four years, Elamin, a
Sudanese citizen, and her brother, now
a US citizen, worked to get a green card
for their mother. Elamin has been in
the US studying since 2006 or 2007
first preparing for examinations, then
as a pediatrics resident in Oklahoma
City, and then as a neonatology
fellow at Georgetown University in
Washington, DC.
Elamin is now working as a neona-
tologist in Virginia, serving an area out-
side DC that doesnt have enough doc-
tors, in a program that enables her to
remain in the country.
The visa for Elamins mother,
Bumsur Zain, finally came through a
few weeks ago and she was visiting
Elamins other brother in Saudi Arabia
before heading to the US. Now she cant
continue her planned trip. Its just very
frustrating, Elamin said. She missed
out on my wedding here in the United
States in 2015 because her visa appli-
cation was pending.
Elamin said her mothers visa is
18 February 13, 2017
(Photo Courtesy: Shadi Darani)
AGONISING WAIT
Fatemeh Sheikhi, planning to visit her
daughters, flew from Iran to Philadelphia,
where she was turned away from the airport
and flown back to Iran
valid for three months but next month
she will need another medical checkup,
a prerequisite for receiving a green
card. A lot of things are in the air,
Elamin said. Part of me believes that
things will go away in a week or 10
days, and that people who already have
a visa and have a lawful reason to come
in can come in. Part of me thinks that
its not going to get any better and she
will lose her opportunity to come to the
US and I dont know whether it will be
safe for me to go back home. Its really
very upsetting.
I feel suffocated because I feel like
Im a prisoner. I cant leave because if I
leave, theres a good chance I wouldnt
be able to come back, Elamin said.
F
or Hassan, the Detroit medical
trainee whose wife is in Qatar,
the problems are piling up. Since
his daughter is an American and not a
citizen of Qatar, she can only get a one-
month visit visa, renewable once. As a
result, Hamad and Alma have already
had to travel to a neighboring country
(Photo Courtesy: Batoul Elamin)
RIGHT PLAN, WRONG TIMING
Bumsur Zain, a Sudanese citizen, had
planned to visit her daughter in the US
before the travel ban went into effect,
putting paid to her dream
and come back to ensure the babys stay
remains legal. They will have to do so
again, Hassan said.
Hassan also notes that hes missing
important moments in his daughters
life. He knew he would miss some with
his wife away for three months, but hes
worried he will miss more.
Shes passing through the mile-
stones and I need to watch that. The
simple things: When you start to smile,
first crawl, now shes transitioning from
formula to solid foods. These simple
milestones, theres no coming back.
Hassan noted that he works at a fed-
eral hospital run by the US Department
of Veterans Affairs and his brother, now
an American citizen, is in the US Army
reserves in basic training in Louisiana.
The whole situation is distressing, he
said. My mind is not clear, Hassan
said. Im very distracted. Im thinking
about taking time off to focus on trying
to solve these issues and to be safe with
my patients.
Courtesy ProPublica
Lead/ Trump/ New Diplomacy
Big Bully of the World
PUBLIC OUTRAGE Protests against the travel ban at the US consulate in Hong Kong
The US presidents executive orders have shown him lacking in
understanding of global issues. Despite this, he forges ahead,
leading to chaos and uncertainty
By Kenneth Tiven in Washington
C
RITICS are correct to sug-
gest that US President
Donald Trump has an ext-
remely limited vocabulary
and, in parallel, a limited
understanding of complex global issues.
However, his supporters hear this as
his plain speaking and applaud.
The immigration ban on Muslims
from seven nations and suggested
changes to the H-1B visa system are
designed specifically to appeal to the
20 percent of American voters who are
hardcore Trump supporters. Almost all
of them are not directly or indirectly
affected by any of thisit makes them
feel as though campaign promises are
being kept.
But millions in the US and abroad
have had their lives thrown into chaos
and uncertainty because of these actions
taken and proposed. Chaos and uncer-
tainty. The words are negative and sug-
gest a serious problem.
To Trump and the people closest to
him, this is perceived as a positive.
Trump made it clear in his campaign
and public pronouncements over the
past decades that he believes in revenge.
Twitter is littered with incontrovertible
evidence of just how thin-skinned he is.
The proposed changes in H-1B are
couched in terms that exaggerate the
problems, if there are actually any big
problems. The overwhelming consen-
sus in the economics academic literature
is that immigrants add more to the
economy than they take. They create
more jobs for Americans, and they are
a net benefit to the American economy,
said Alex Nowrasteh, an immigration
policy analyst at Cato Institute, a liber-
tarian think tank.
Trumps immigration proposal man-
ages to aggravate immigrants who are
lawfully in the US and worry hi-tech
managers and owners who, he per-
ceives, had supported Hillary Clinton,
his Democratic rival in the presidential
race, in the majority. It also notifies
foreign governments that he is the
biggest bully on the world scene today.
T
he point to understand is that all
of Trumps rapid-fire-executive-
order operational style is a fea-
ture, not a bug, caused by inexperience.
This is the norm, not an anomalyget
used to it. Even knowing this, opposi-
tion to the changes in H-1B will be huge
because the companies employing for-
eign workers need them as there are
no Americans with the skills and work-
place attitude to fill those jobs. If the
cost of these workers is increased, it will
be passed on to American consumers as
higher prices.
When the outrage of Americans
Womens March, airport demonstra-
tions against the Muslim ban, outrage
about immigration requirementsgets
out of hand and the president decides
to declare martial law or something
between that and democracy, he has
advanced his domination of American
politics through the sham act of these
executive orders.
The writer has been a journalist in
American media for more than 50
years, including stints at
The Washington Post, TV network news
with NBC, ABC and CNN and was
involved in the start up of Aaj Tak
and continues to work with
several Indian news channels
| INDIA LEGAL | February 13, 2017 19
Lead/ Trump/Constitutional Challenge
P
RESIDENT Trumps
The Best Legal Arguments Executive Order on the
visa ban has triggered
outrage and chaos in
equal measure.
against the Ban
Specifically, it bars entry
into the US of all refugees for 120 days;
bars citizens (even non-refugees) of
Iraq, Iran, Syria, Somalia, Sudan, Libya
and Yemen for 90 days and bars Syrian
Though the US Presidents Executive Order seems to violate the constitution which says that refugees indefinitely.
Even as millions of refugees, stu-
one cannot discriminate on the basis of nationality or place of origin, it has been drafted dents, green card holders and immi-
cleverly to evade a clash with the statute grants with permanent residency
remain in limbo, legal and constitution-
By Sujit Bhar al challenges to the ban are mounting,
apart from the spontaneous protests
that have erupted across America.
ACLU LAWSUIT
The American Civil Liberties Union
(ACLU), the largest pressure group in
the US with over 7,50,000 members,
and other activist groups filed a class
action lawsuit seeking to challenge the
President's order. The temporary
restraining order was achieved. Lee
Gelernt, deputy director of ACLUs
Immigrants Rights Project, said in a
statement: This ruling preserves the
status quo and ensures that people who
have been granted permission to be in
this country are not illegally removed
off US soil.
A US district court judge in
Brooklyn ruled to halt the enforcement
of Trumps Executive Order (See box)
the day after he signed it. At least four
other state courts have done the same.
The essence of the New York judges
order on the petition by Hameed
Khalid Darweesh and Haider Sameer
Abdulkhaleq Alshawi is as follows: IT
IS HEREBY ORDERED that the
respondents (who include Donald
Trump, President of the United
States).are enjoined and restrained
from removing individuals with
refugee applications approved by U.S.
Citizenship and Immigration Services
as part of the U.S. Refugee Admissions
UNI
Program, holders of valid immigrant
20 February 13, 2017
and non-immigrant visas, and other
individuals from Iraq, Syria, Iran,
Sudan, Libya, Somalia, and Yemen
legally authorised to enter the United
States.
Against this backdrop, experts have
been looking into the credibility of the
Executive Order and trying to decide
how legally binding it could be or
whether it could even be anti-constitu-
tional. Steven Mulroy, a law professor in
constitutional law, criminal law and
election law at the University of
Memphis, has written that deciding
whether its legal or not is a surprising-
ly tricky question.
There are several aspects to this
Order that need extreme scrutiny. The
sheer ethical and humanitarian angle
apart, the first question is whether this
Order finds any footing at all in the
legal world. It originated in Trumps
election campaign rhetoric when he
declared that he wanted to impose a
temporary ban on the entry of all
Muslims into the country.
Now that it is an Executive Order, a
closer scrutiny shows that it has been
drafted very cleverly. While it bars entry
of refugees and even visa holders from
seven Muslim countries, it does not
mention Muslims specifically. That is
how the Order, possibly, evades a clash
with the US constitution. Mulroy
writes: In explaining why those seven
countries were chosen, the order itself
cites the (Barack) Obama-era law stat-
ing that persons who in recent years
have visited one of these seven terror-
ism-prone nations would not be eligible
under a visa waiver program. That is
A closer scrutiny of the Executive
Order shows that it has been
drafted cleverly. While it bars
entry of refugees and even visa
holders from seven Muslim
countries, it does not mention
Muslims specifically.
Immigration
Acts
The Immigration and
Nationality Act of 1952 says:
Whenever the President finds
that the entry of any aliens or of
any class of aliens into the
United States would be detri-
mental to the interests of the
United States, he may by procla-
mation, and for such period as
he shall deem necessary, sus-
pend the entry of all aliens or any
class of aliens as immigrants or
non-immigrants, or impose on
the entry of aliens any restrictions
he may deem to be appropriate.
Whenever the Attorney General
finds that a commercial airline
has failed to comply with regula-
tions of the Attorney General
relating to requirements of air-
lines for the detection of fraudu-
lent documents used by passen-
gers traveling to the United
States (including the training of
personnel in such detection), the
Attorney General may suspend
the entry of some or all aliens
transported to the United States
by such airline.
The Immigration Act of 1965,
which amends the 1952 Act,
says:
Except as specifically provided
in paragraph (2) and in sections
1101(a)(27), 1151(b)(2)(A)(i),
and1153 of this title, no person
shall receive any preference or
priority or be discriminated
against in the issuance of an
immigrant visa because of the
persons race, sex, nationality,
place of birth, or place of
residence.
| INDIA LEGAL | February 13, 2017 21
Lead/ Trump/Constitutional Challenge
STOPPING TRUMP The NY
Court ruling (left) stayed the
Presidents Executive Order a
day after it was signed
where the sleight of hand
has happened.
Mulroy adds that the
defining characteristic here
is terrorist danger, not reli-
gion. Thats why only seven
of more than 40 majority
Muslim countries are
affected. The Obama-era
rule, he says, isnt based on
nationality, but rather on
whether someone of any
nationality visited the dan-
ger zone since 2011a cri-
terion not outlawed by the
1965 statute. But taking a
leaf out an Obama action
and using it to his own ben-
efit was certainly a wily
move by Trump.
OTHER VIOLATIONS
The order arguably violates
both a federal statute and
one or more sections of the
The Executive Order
Here are selected sections from President
Trumps Order:
 Section 1. Purpose.
The visa-issuance
process plays a cru-
cial role in detecting
individuals with terror-
ist ties and stopping
them from entering the
United States...
.Deteriorating condi-
tions in certain coun-
tries due to war, strife,
disaster, and civil
unrest increase the
likelihood that terror-
ists will use any
means possible to
constitutiondepending on whether birth, or place of residence.
the immigrant is already in the US, The earlier one, though, deals with a
according to Mulroy. He says that in Presidential order, which lays out that
the end, opponents best hope for undo- the President can deny entry, to any
ing the order might rest on the separa- class of aliens if he finds that such
tion of church and state. entry would be detrimental to the
Another legal expert, David Bier, interests of the United States. Here,
wrote in cato.org that the Immigration Bier cuts a prevalent argument that
Act of 1965, which replaced an earlier this (earlier) provision allows President
1952 statute, clearly prohibits discrimi- Trump to simply ignore the ban on dis-
nation in the issuance of an immigrant criminating based on national origin.
visa based on national origin. (See box). He adds: But a basic rule of statutory STRATEGICAL STRIKE? Anti-travel ban protestors outside Philadelphia Airport
Bier, incidentally, is an immigration construction holds that in the case of a
policy analyst at the Cato Institutes conflict, the statute enacted most all, the law doesnt apply to refugees. It depending on whether the immigrant is
Center for Global Liberty and recently wins. In this case, that would applies to immigrants. Its used when already in the US.
Prosperity. He is an expert on visa be the 1965 amendments banning dis- you have visa issues. Also, it doesnt The recent court orders halting
reform, border security, and interior crimination in the 1952 Act. cover religious discrimination. Also, in enforcement of the Trump order relied
enforcement. He says that Trump may 1990, the act was amended to exclude on a legal argument that it violated due
have used the earlier executive order LAW DISTORTED procedural changes as a form of dis- process or equal protection under the
out of context and, then part of the Jonathan Turley, Constitutional crimination. And that reduces the use constitution. Due process means that
1952 statute (8 U.S.C. 1182(f ), 1952), Attorney, George Washington of the 1965 law, I think, as a serious people get procedural safeguardslike
also out of context, and mixed them to University, in an interview in PBS challenge. And also it means that much advance notice, a hearing before a neu-
form a humongously explosive order. Newshour goes deeper into the issue. of that order, as they challenge, doesnt tral decision-maker and a chance to tell
How does the order violate the He said: Theres no question that the fall under the law. their side of the storybefore the gov-
statute? The 1965 amendment is clear law says that you cannot discriminate That confuses matters further. ernment takes away their liberty.
in saying: no person shall receive on the basis of nationality or place of Mulroy reveals another pitfall, saying Equal protection means the govern-
any preference or priority or be origin. And that certainly helps the that if due process issues are not con- ment must treat people equally, and
discriminated against in the issuance of challengers. But like much else in this sidered the order arguably violates cant discriminate on the basis of race,
an immigrant visa because of the per- debate, much of that law has been dis- both a federal statute and one or alien status, nationality, and other irrel-
sons race, sex, nationality, place of torted. It only takes you so far. First of more sections of the constitution evant factors.
Mulroy adds: The Supreme Court
has said that even immigrants who
of Issuance of Visas
and Other Immigration
Benefits to Nationals
United States, as immi-
grants and nonimmi-
Secretary of State shall
suspend the U.S. Refugee
(c) Pursuant to section
212(f) of the INA, 8 U.S.C.
are not citizens or green card holders
have due process and equal protection
grants, of such persons Admissions Program 1182(f), I hereby proclaim
rights, ifand only ifthey are
of Countries of for 90 days from the date (USRAP) for 120 days. that the entry of nationals
Particular Concern... physically here in the US. Thats
of this order . During the 120-day peri- of Syria as refugees is
(c) pursuant to sec- (e) After the 60-day od, the Secretary of State, detrimental to the interests why the recent court orders on due
enter the United
States tion 212(f) of the INA, period described in sub- in conjunction with the of the United States and process and equal protection help only
...The United States 8 U.S.C. 1182(f), I section (d) of this section Secretary of Homeland thus suspend any such individuals who were in the States
cannot, and should hereby proclaim that expires, the Secretary of Security and in consulta- entry until such time as I at the time the court ruled. That
not, admit those the immigrant and Homeland Security, in con- tion with the Director of have determined that suffi- clears the case of separation of
who... engage in acts nonimmigrant entry sultation with the Secretary National Intelligence, shall cient changes have been the church and state, too, because
of bigotry or hatred into the United States of State, shall submit to the review the USRAP applica- made to the USRAP to reference in the constitution incorpo-
(including honor of aliens from coun- President a list of countries tion and adjudication ensure that admission rates due process.
killings, other forms of tries referred to in sec- recommended for inclusion process to determine what (d) Pursuant to section Clearly, the legal challenges will be
violence against tion 217(a)(12) of the on a Presidential proclama- additional procedures 212(f) of the INA, 8 U.S.C.
like entering a minefield. It will be a
women, or the perse- INA, 8 U.S.C. tion that would prohibit the should be taken to ensure 1182(f), I hereby proclaim
1187(a)(12), would be bloody and lengthy battle, which means
cution of those who entry of foreign nationals that those approved for that the entry of more than
detrimental to the  Sec. 5. Realignment of refugee admission do not 50,000 refugees in fiscal that millions of unfortunate families
practice religions dif-
ferent from their interests of the United the U.S. Refugee pose a threat to the secu- year 2017 would be detri- and individuals will be trapped in a hell
own) States, and I hereby Admissions Program for rity and welfare of the mental to the interests of of one mans making.
 Sec. 3. Suspension suspend entry into the Fiscal Year 2017. (a) The United States. the United States
With Special reports from the US
| INDIA LEGAL | February 13, 2017 23
Lead/ Trump/H-1B Visas
Reinvent, New
Buzzword in IT Sector
With fears of an Executive Order hitting Indias Silicon Valley,
insiders say the only way to survive the storm is to
redeploy and recast
By Imran Qureshi in Bangalore
U
S President Donald
Trump has left many
Indians uneasy. News of
him likely to sign an
executive order aimed at
H-1B visas, 70 percent of
which are cornered by Indians, has
unnerved many. It also led to stocks of
Indias top IT companies such as Tata
Consulting Services, Infosys and Wipro,
plunging to 4 percent and leading to a
loss of around Rs 33,000 crore in their
market valuation.
However, in Indias Silicon Valley, a
different picture emerges of the dire
prospects of this presidential order. It
brought back memories of the chal-
lenges faced by the IT industry during
the last two decades and surmounting
them. These include the Y2K crisis 18
Lobbying Only Option for India
The government has realised that Trump is in no mood to relent on
implementing his campaign promises
ore than the US ban on Muslim
M refugees, the Indian government
is concerned about the executive
order drafted by the Trump administration
which imposes severe restrictions on the
issue of H-1B visas. It is this non-immi-
grant visa that allows US employers to
temporarily employ foreign nationals in
speciality occupations including the
24 February 13, 2017
years ago and the US economic crisis
which led to multi-skilling of the Indian
coder. Despite campaigns during US
elections urging hiring of locals, Indias
software power has become akin to
Chinas manufacturing power.
MINIMUM CAP
The presidential order, if it comes
through, will raise the minimum salary
cap for H-1B visas from the present
$60,000 to $1,30,000. Insiders admit
that the costs of the Indian IT sector
will go up, impacting margins but this
will also depend on the speed with
which they can reinvent their out-
sourcing model.
There is no doubt that such an order
would hit IT companies. A CEO of a top
IT company said on condition of
computer and software sectors. Any
curbs on H-1B visas severely impacts the
Indian IT industry as well as these profes-
sionals.
The executive order, if signed, has
to be seen in conjunction with the Zoe
Lofgren Bill tabled in the House of
Representatives on January 20, a
source in the Ministry of External Affairs
UNI
(MEA) told India Legal. Should the bill
be passed, it will change the way H-1B
visas are issued in the long term. Indian
software professionals and companies
which have operations in the US would
be severely hit by the new law. Our con-
cern is primarily about the health of the
IT sector.
Of the 65,000 H-1B visas issued
every year, 70 percent are cornered by
IT professionals from India. US media
reports put the number of Indians
employed in the US on H-1B visas as
anywhere between 3,00,000 to 3,50,000.
The visa allows employees to work for a
maximum period of six years and was
introduced in 1990.
According to the official, the Indian
government has already communicated
its concerns to the US administration as
confirmed by the Ministrys spokesper-
son Vikas Swarup. The MEA is also
preparing a special dossier reiterating
and listing the anxieties of the IT industry.
India Legal has learnt that the MEA is
not taking any aggressive posture as it
did in March last year when it dragged
the US to the WTO over imposition of
increased visa fees for temporary work-
ers on H-1B and L-1 visas. There is a
realisation within the MEA that there is
nothing the government can do other
than lobby through diplomatic channels
and influential NRIs.The strategy seems
to be to gather support against the Bill in
the House of Representatives or covertly
back those legally challenging the legis-
lation.
As for the presidential executive
order, it has been informally conveyed to
IT companies that it would be counter-
productive to launch any offensive now.
Says an MEA source: The issuing of
visas is the prerogative of a sovereign
country and it would be unwise for the
government to question that. Moreover,
there is one view that it would be point-
less stopping the President when he is in
PRESIDENT UNPOPULAR
Protests in Washington against
Donald Trumps policies
no mood to relent on implementing his
campaign promises.
However, it will be part of the govern-
ment initiative to impress on the US
authorities that Indian talent was actually
helping US businesses grow and it
would be against American interests to
impose curbs. The US may now no
longer be the favoured destination for
Indian students who look forward to
landing jobs there after completing their
studies.
Gentle persuasion seems to be the
option that will be exercised. At least
for now.
By Ajith Pillai
| INDIA LEGAL | February 13, 2017 25
 INNDIA L EGAL
www.indialegalonline.com

December 15, 2016 `100

Lead/ Trump/H-1B Visas E STORIES THAT COUNT

DANGEROUS Jayas Troubling Legal Legacy

INNDIA L EGAL
www.indialegallive.com

GAMBLE December 31, 2016 `100

anonymity that raising the

A comprehensive analysis and prediction
of the social, political and economic
consequences of the single most
draconian step taken by a prime
E STORIES
RIES THAT
THAT COUNT

-END SPECIAL
minister since the Emergency YEAR
Professor Arun Kumar
minimum salary cap would be
INNDIA L EEGAL
www.indialegallive.com
Inderjit Badhwar January
J y 15
15,, 2017 `100

GAL
Dilip Bobb
Ajith Pillai
difficult for any company. It Kalyani Shankar
Devinder Sharma
Justice Chapalgaonker STORIES THAT COUNT

is physically not possible for Disappearance

of Delhis lakes
Court architechture
from India and abroad
A petition to
Golu Devta

INNDIA L EGAL
www.indialegallive.com
January 23, 2017 ` 100

any company to pay this kind

of a salary. The current model V Balakrishnan, Rostow Ravanan, Kris Lakshmikanth, Sandeep Ladda, E STORIES THAT COUNT

ex-CFO, Infosys, says CEO of Mindtree CEO of Head Hunters Leader-Technology THE BEST OF

The Gathering SStorm INDIA

The digital drive is also an opportunity for Supreme Court
of sending skilled profession- cyber criminals. How safe is your money? goes on overdrive

WAITING FOR
R
INNDIA L EGAL
www.indialegallive.com

that Indian IT compa- Consulting, says that says that the nature and e-Commerce, January 30, 2017 `100

als will not work. Companies

E I
A CLEAN INDIA

LEGAL
would have to recruit locally. nies can manage by the industry would of engagement will Pricewaterhouse STORIES THAT COUNT

Exciting legal Judges who shaped Narasimha Rao

reducing onsite have to prepare for change and compa- Coopers, says there Insiders fear the tables may be turning as Modis 5O-day ddeadline
e approaches careers legal history and the Babri

INNDIA L EGAL
V Balakrishnan, former
www.indialegallive.com
February 6, 2017 ` 100

CFO, Infosys, said: Doubling deployment...current-

ly, Indian companies
slower
current
growth.
model of
The
send-
nies
those
will begin to
professionals
send is a huge demand-
supply at play.
E 2016 STORIES THAT COUNT

the wages will have a huge

impact on IT services. It can have 70 percent work ing Indians to the US who are very critical. But the Indias Malicious
be managed by reducing offshore and 30 will not work and They will hire more challenge is how Melanin Factor
onsite deployment. For onsite. This will have companies will have from companies or Indian companies Our countrys record of corruption is dismal and doesnt auger err well for the future.
Unless there is political will and laws to fight this scourge, governance
ovv is blighted Even as
Indians

to be brought down to to recruit locally in individual contractors would deal with For advertising & subscription queries complain about
instance, currently, Indian
companies have 70 percent
work offshore and 30 onsite.
90:10. the US. locally in the US. the issues. RBI under Siege
S
editor@indialegalonline.com H far
How f hhas th
the llegall andd structural
t t ra autonomy
of the Bank been choked by the Central
enn Government?
racism abroad,
it is alive and
kicking here
too. see the
way we
colored
people treat

NO HOLDS BARRED
those who are
This will have to be brought down to a say that the very nature of engagement is at the back of the software industry. dark-skinned,
whether they
are our own
ratio of 80:20 or even 90:10. Strictly would change. Companies will begin to The current number of 3.7 million IT or from other
countries

speaking, with the new digital way of
doing business, we do not require so
many people onsite. New technologies
that are being deployed are not man-
power intensive. They are innovation
intensive. Models will get re-invented
because everyone knew it was coming.
The centre of gravity will move towards
India.
Models will have to change to retain
growth. Rostow Ravanan, CEO of
Mindtree Consulting, said that the
industry would have to prepare for
slower growth. The current model of
sending Indians to the US will not
work. Companies would have to recruit
locally in the US.
Kris Lakshmikanth, CEO of Head
Hunters India, goes a step further to
Priced H-1B Visas
 Of the 65,000 H-1B visas issued every
year in the US, 70 percent are cornered by
Indian IT professionals
 The number of Indians employed in the
US on H-1B visas is between 3,00,000 to
3,50,000
 A bill in the US House of Representatives
calls for the minimum salary for an H-1B
visa to be doubled to around $1,30,000 per Central Europe: 11%; Asia-Pacific: 8%;
annum from the present $60,000
26 February 13, 2017
send only those professionals who are
very critical. They will hire more from
temporary companies (where services
are given for, say, a project) or individ-
ual contractors locally in the US. Given
the technologies available, it will be
more appropriate to deploy non-techies
who can market and deal with the busi-
ness of software.
Manish Sabharwal, chairman,
Teamlease Services, said: Over a period
of time, about 10 percent of the head-
count in the US would come down to
five percent if the visa order is pushed
through. But, the advantage is that
Indian companies will develop new
competencies as they have done earlier.
It will force us to increase headcount in
India and develop processes. The wind
 The H-1B visa allows employees to work
for a maximum period of six years
 It was introduced in 1990
 Export value of Indian IT services in 2016:
$110 billion
 Annual growth of exports in 10 years:
16 %
 Export share: US: 62%; UK: 17 %;
Others: 2 %
Sources: ICRA and MEA
professionals will only grow to 7 million
in the next five years. But it is not a job
crisis from any perspective. Dont miss a single issue of this independent, scintillating new weekly magazine
So can the US survive without
Indian IT professionals? Sandeep
and get special discounts for yourself and your friends
Ladda, Leader-Technology and e-
Commerce, PricewaterhouseCoopers
(PwC), said: There is a huge demand-
SUBSCRIBE TO INDIA LEGAL GET FABULOUS DISCOUNTS
supply at play. But the challenge, he HTb8f^d[S[XZTc^bdQbRaXQTc^8=380;460;\PVPiX]TU^acWT^UUTaX]SXRPcTSQT[^f
said, was how Indian companies deal
with issues in the immediate future if CXRZ^]T CTa\HTPab =^^U8bbdTb 2^eTa?aXRT` H^d_Ph` H^dbPeT` BPeX]V
the order goes through. There may not
be simple solutions to negotiating pric- HTPa $!8bbdTb $! !% !% $
ing, for instance. Or, there could be
!HTPab #8bbdTb # # % %!# %
some delay in who needs to be replaced.
They may not have the machinery to =P\T)0VT)BTg)
hire people, and of course, not at
$1,30,000. 0SSaTbb)
That is not all. Indian companies
will have to accelerate technological
innovations and look at acquisitions in 
the US, said Raja Lahiri, Partner at
2Xch)BcPcT)?X])
Mumbai-based consultancy, Grant
Thornton India.
?W^]TATb)>UUXRT)T\PX[)
Of course, everyone agrees that
Indian IT professionals already in the 4]R[^bTS332WT`dT=^)3PcTS)3aPf])U^a`)
US will not be impacted. But, just in
case that also happens, Sabharwal 2PaS=^)BXV]PcdaT)
quotes his 12-year-old daughter, Noor, 5^a^dcbcPcX^]RWT`dT_[TPbTPSS`$
who said: It is good Trump got elected. 332WT`dTc^QTSaPf]X]UPe^da^U4=2^\\d]XRPcX^]b?ec;cS
All the Indians who made America
C^QTbT]cc^)4=2^\\d]XRPcX^]b?ec;cS0(BTRc^a%'6PdcP\1dSSW=PVPa=>830D?! "(
great will return to help build India.
CTa\bR^]SXcX^]bP__[h?[TPbT_a^eXSTdb#fTTZbc^bcPach^dabdQbRaX_cX^]
Spotlight/ Jallikattu/SC Order
Other States Follow Suit
After Jallikattu was held in various parts of Tamil Nadu on January 22, other

Peoples Power Wins

states have demanded resumption of their traditional sports too. These are:
 Karnataka: Chief Minister
Siddaramaiah has stated that the gov-
ernment is in favour of hosting Kambala
and is ready to issue an ordinance to
legalise it. Union Law Minister Ravi
In a huge relief to the Tamil Nadu government and its people, the Supreme Court refused to stay a Shankar Prasad has also said that the
Union government will extend the same
bill permitting this sport. This has acted as a dampener for animal rights activists support to Karnataka as it did to Tamil
Nadu on its Jallikattu ordinance
By R Ramasubramanian in Chennai
 Punjab: Organisers of Kila Raipur
Games, also known as Rural Olympics in
this state, have moved the apex court to
revisit its 2014 order banning bullock cart
races. Former race participants insist
concerns over the safety of bulls
are misplaced
 Maharashtra: As the state goes to cru-
cial zila parishad and panchayat samiti
elections next month, the Shiv Sena has
demanded an ordinance to circumvent
the 2014 ban on bullock cart races
 Assam: The annual bulbul fight, which
is organised in January, was banned in
2016. However, the chief priest of
Hayagrib-Madhab Temple in Hajo, a
pilgrimage centre, has said that like
Jallikattu, this fight is part of the states
heritage. Activists claim the birds are
trapped and fed a combination of herbs ated with it. Roosters with sharp blades
and intoxicants to fight on their feet fight to death before a
 Andhra Pradesh: Kodipandayam crowd. This year, the police filed more
(cockfight) was banned by the High than 1,500 cases of illegal cockfights.
Court of Judicature at Hyderabad to stop BJP leader KR Krishnam Raju has
cruelty to birds and the gambling associ- moved the SC to contest the ban.

Prevention of Cruelty to Animals Act
1960. The bill was passed unanimously
in the assembly.
Usually an amendment to a central
law can be brought in only through the
parliamentary route. However, if the
subject of the legislation is on the con-
current list, then the state government
too has jurisdiction over it. As the sub-
ject of prevention of cruelty to animals
is the 17th item on the concurrent list,
the state government has powers to
A MATTER OF amend it and this is precisely what the
CULTURE Tamil Nadu government has done.
A Jallikattu fight
in progress
SHIFTING STAND
He added: The bench also asked the
animal rights activists the basis of
their challenge to the new law. It also
pointed out that the declared object of
the new legislation is the preservation
of a particular breed of bull and they
call Jallikattu a culture. This has to be
debated and the bench added that it
would examine if Jallikattu can be
allowed on cultural grounds.
However, animal rights activists are
saddened by the development. P
Suman, an activist, quotes the following
passage from the May 7, 2014, judg-
ment: International community should
hang their head in shame, for not rec-
nal perspective, what emerges is that
every species has an inherent right to
live and shall be protected by law, sub-
ject to the exception provided out of
necessity. Animal has also honor and
dignity which cannot be arbitrarily
deprived of.... Jallikattu is an unneces-
sary suffering as against killing an ani-
mal for meat which is an essential act.
Suman asks that if this was the clarity of
the earlier Supreme Court order, how
could this ruling be overturned by a new
law? He said the 2014 judgment estab-
lished beyond doubt that bulls were sub-
jected to torture in Jallikattu.
Another jurist said that there were

T
HE Tamil Nadu gov-
ernment received a
huge relief from the
Supreme Court on
January 31 when it
refused to stay a new
act permitting
Jallikattu. The act, passed by the state
government, was challenged by a clutch
of petitions filed by the Animal Welfare
Board of India (AWBI), NGO Compa-
ssion Unlimited Plus Action and others.
A division bench headed by Justice
Deepak Misra, however, agreed to
examine both the constitutional and
legal validity of the act and ordered no-
tices to the centre and the Tamil Nadu
government returnable in six weeks.
The Supreme Court also expressed dis-
pleasure over the massive protests in
Tamil Nadu against the ban and remin-
ded the state government that its pri-
mary duty is to maintain law and order
and ensure rule of law.
ORDINANCE REPLACED
Amidst these protests, the assembly on
January 23 had passed a bill paving way
for conducting Jallikattu. The bill
replaced an ordinance which was prom-
Jallikattu.in/Balakumar Somu
ulgated on January 21 by acting gover-
nor C Vidhyasa Rao after the presi-
dents ascent. The ordinance was neces-
sitated as the Supreme Court, in a May
7, 2014 order, completely banned
Jallikattu by stating that the sport was
inherently cruel in nature. A review
petition by the Tamil Nadu government
in this regard was also dismissed by the
Supreme Court on November 16, 2016.
After every legal avenue was
exhausted and week-long protests were
held at Marina Beach, the state govern-
ment was forced to choose this path
and amended a few sections in the
Legal observers say that there is a sub-
tle but perceptible shift in the Supreme
Courts attitude towards Jallikattu and
it became visible after it refused to stay
the new Jallikattu bill. Yes, to me it
seems like that there is a shift. Even in
the last hearing on November 16, 2016,
when the apex court dismissed a review
petition, the same bench observed that
the country cannot import Roman
Gladiator type of sports in this modern
age and suggested that if anyone wants
to play the game of bull-taming they
can do it in computer games, Yashwant
Sundararajan, an advocate in the
Madras High Court told India Legal.
ognizing their (animals) rights all these
ages, a species which served the
humanity from the time of Adam and
Eve.When we look at the rights of ani-
mals from the national and internatio-
Since the subject of
prevention of cruelty to
animals is the 17th item on
the concurrent list, the
state government has powers
to amend it. And this is what
Tamil Nadu did.
strong reasons to believe that the pres-
ent SC bench may have a different take
on the issue of culture. Interestingly, in
the 2014 judgment, the SC said while
dismissing an argument that Jallikattu
is a cultural event: Prevention of
Cruelty to Animals Act 1960 is a welfare
Act and it was a settled position in law
that if there is a clash between an acti-
vity connected with culture and a
welfare Act, it is the latter which shall
prevail. But now the SC says it will
examine the issue. Jallikattu lovers are
now better placed.
For now, the Tamil Nadu government
can breathe easy.

28 February 13, 2017 | INDIA LEGAL | February 13, 2017 29

Spotlight/ Jallikattu/A Peoples Movement

that resonated from the Marina in

Tamizh Pride Chennai and other cities in the state.

It is now apparent that the protests
were not just about Jallikattu. In fact,
many who thronged Marina Beach may

and Prejudice perhaps never have witnessed a bull-

taming event or undergone the pilgrim-
age to Alanganallur in south Tamil
Nadu, famous for hosting the sport

The protests at Marina
Beach were not just about
the ban on this sport. It
was a reassertion of Tamil
rights and a platform for
releasing pent-up anguish
T
every year during Pongal, the harvest
UNI
HOSE not aware of the
complex socio-cultural
festival. The apex court order banning
the sport merely provided the trigger expressed anguish and insecurity fol- RAGING DISCONTENT
dimensions of Tamil
identity politics may find
and the platform for raising several
other concerns and for pent-up public
lowing the death of Jayalalitha. Their
take: there was no powerful leader left
(Clockwise from above left) Buses torched
in protest against the SCs verdict on the
it difficult to compre- anguish and frustration to be expressed. to stand up to the centre and fight for
Cauvery water issue, in Bengaluru; actors
Kamal Hassan and Rajnikanth
hend how the protests
against the Jallikattu ban could have DIVERSE ISSUES
the rights and honour of Tamils so the
people had no choice but to come out
metamorphosed so fast into a mass The protesters were not activists of on the streets. culture and tradition? Arent we being
movement of sorts. Of course, it did not
sustain long enough for it to have a last-
political parties. They were students,
professionals, retired folkand they
Jallikattu acted as a lightning rod
that attracted various shades of disaf-
taken for granted?

and frustration over other ing impact, but it sent out a strong and
larger message to the central and state
seemed angry. They were agitated about
the adverse drought situation and farm-
fection and dissent. Actor Kamal
Hassan articulated the general mood
issues as well governments that the genuine concerns ers distress, unemployment, demoneti- that prevailed on the Marina: There is
By Ajith Pillai of the common citizenry cannot be dis- sation, the state being repeatedly slight- an accusation against students that they
missed or ignored. It was, as some com- ed by Delhi, atrocities against Lankan protested only for Jallikattu. This move-
mentators put it, the voice of the people Tamils and what have you. Some even ment is not just about Jallikattu.
Jallikattu is only a symbol of a much
larger discontent. This agitation came
after decades of various kinds of anger.
However, not all demands of the
protestors can be endorsed, including
the call for Tamil Nadu to secede
from the Indian Union. The protest
and its success in revoking the
Jallikattu ban, some fear, might revive
Tamil chauvinism and the dangerous
and divisive identity politics with its
inherent anti-North India texture. The
prevailing public sentiment also runs
the risk of being politically exploited by
vested politicians.
INFLICTING CRUELTY
But how could banning of a sport
A QUESTION
OF HERITAGE? unleash so much frustration and anger?
Students and Jallikattu, to say the least, inflicts cruel-
youth staging a ty on an animal, in this case the bull,
demonstration at which is allegedly teased and provoked
Marina Beach,
by being prodded with sticks and
Chennai,
demanding scythes and force-fed alcohol before
lifting of the ban being released into a crowd. A team of
on Jallikattu participants are then supposed to sub-
UNI
affront to Tamizh identity and pride was
due the enraged animal and bring it to
the ground.
That Jallikattu is cruel cannot be
denied whatever its supporters may say
about the veneration in rural Tamil
Nadu of the Kangayam breed of the bull
used in the sport. Neither is it an inno-
cent Eru (bull) thazhuvuthal (hugging)
festival as it is projected to be. There is
overwhelming photographic and video
evidence which proves the contrary.
Earlier, bans imposed on the sport
did not provoke the scale of public out-
cry seen this time. So, what was differ-
ent now? Many believe that the
Jallikattu ban came too close to
Karnataka refusing to release Cauvery
waters to Tamil Nadu despite an apex
court order. This agitated many and the
big question on the minds of many a
protestor was this: What did the centre
or the Supreme Court do when
Karnataka refused our drought-hit
farmers water? So, why should we
Tamizhs take it lying down when it
comes to Jallikattu? Why should we
allow anybody to mess around with our
VIGOROUS CAMPAIGN
Equating the ban on Jallikattu as an
not initially a spontaneous construct,
although the protests were an impulsive
reflex. In fact, a vigorous campaign was
first launched in the local press and soc-
ial media against the court order which
had the blessings of the economically
and politically powerful Thevar commu-
nity who own the pedigree Kangayam
bulls and organises the events.
An SOS was sent out that Jallikattu
had to be protected to preserve Tamil
pride. The Supreme Court ban would
have to be opposed, not by employing
legal process but through mass protests.
The line between Thevar self-esteem
and Tamil honour soon blurred with
popular movie stars like Kamal Hassan
and Rajnikanth opposing the ban. Very
soon, it became politically correct to be
with the protestors than be left defend-
ing animal rights activists who were
quickly labelled as American agents.
More than anything else, the protests
reminded old-timers of the 1965 anti-
Hindi agitations and rekindled interest
in the Dravida movement. For others, it
was a reassertion that non-violent
protests still remain a powerful tool in
the hands of the people.

30 February 13, 2017 | INDIA LEGAL | February 13, 2017 31

Spotlight/ Jallikattu/ Opinion

A Lonely
Battle
What is to be done when a court order is violated
INVIOLABLE ASSET
(Clockwise from top) An exhi-
bition of paintings by in

by people and a state that is bent on pleasing the

electorate? The constitution and independence NOT A SPORTY MATTER
(Left) Protestors at Marina Beach, Chennai,
of the judiciary should be respected expressing their anger at the court order on
Jallikattu; (above) Dahi-Handi sport during
By Justice Narendra Chapalgaonkar Photos:UNI
Janmasthtami celebrations in Mumbai

HE Supreme Court had When the Supreme Court, the final ask people to be restrained and accept Jallikattu case, some other states are SOCIAL REFORMS by law is necessary. In the 19th century,

T
last month deferred its
order on Jallikattu, fol-
lowing a furore from the
people of Tamil Nadu.
This postponement fol-
lowed an application for a stay of its
own order, which had quashed a notifi-
cation of the Union government allow-
ing Jallikattu on certain conditions.
Meanwhile, the governor of Tamil
Nadu promulgated an ordinance per-
mitting this sport on January 22. While
various places in the state celebrated it,
some demanded a permanent solution
by an act of the legislature.
The Tamil Nadu legislature prompt-
ly enacted a law as demanded. The state
machinery had not shown such prompt-
ness in discouraging the demonstra-
tions in favour of Jallikattu. When the
new law was again challenged, the
Supreme Court reminded Tamil Nadu
government of its duty to maintain law
and order. The Court also conveyed to
the government through its lawyers:
arbiter of the Constitution, is seized of
the matter; there should be complete
obeisance and compliance. Sanctity of
the independence and orders of the
Court should always be protected by the
state power. It is not a discretionary or
optional function. Avoidance would be
dereliction of conductional duty.
CALL FOR RESTRAINT
As to whether Jallikattu amounts
to cruelty or unethical treatment of ani-
mals is, no doubt, an important ques-
tion. But this episode also raises more
important questions concerning judicial
independence. When a matter is pend-
ing before a court, can demonstrations
and morchas be justifiable ways of
expressing an opinion? There are
lawful ways to appear before court and
submit ones point of view. Courts
should be permitted to decide matters
in a cool atmosphere and without exter-
nal influence.
Politicians should be courageous to
the verdict even if it is against the pop-
ular wish.
Courts cannot be forced to decide
any matter in a particular way. Morchas
are often taken out as a way of protest
to urge courts to convict or acquit
someone. This is certainly not a happy
situation for the judge. If we have
to work under the constitution, we
must respect the independence of
the judiciary.
No doubt the media has many times
unearthed crimes and improper deeds
of people in high offices. But at times, it
too enthusiastically oversteps and
expresses opinions about the merits of a
pending case. Biographers of some
eminent judges of yesteryears have
revealed that these legal luminaries
refrained from reading the newspapers
so as not to be influenced by them in a
case. But in todays world, one cannot
escape from the cacophony of the elec-
tronic media.
Following the way shown in the
likely to demand a restoration of simi-
lar sports there which were banned
by courts.
Cart race and Nag puja (snake wor-
ship) were objected to by courts on the
ground of cruelty to the animals and
reptiles. If any sport is scheduled on a
particular day of the religious
calendar, it acquires a cultural status. If
any religious practice, including a sport,
is objected to on the ground of public
safety and cruelty to human beings or
animals, there is a public outcry that
this is interference in culture or reli-
gion. Few see merit in the objection.
Politicians should be
courageous enough to ask
people to be restrained
and accept the courts
verdict even if it is against the
popular wish.
A state run by the representatives of
people is naturally shy to take action
and the courts have to step in. There is
a long history of social reforms in India
which were opposed by the majority of
vocal people. When people do not
accept a reform, the law remains on the
statute book as a dead word. Despite
the Child Marriage Restraint Act being
in operation for more than 80 years,
such marriages are common in some
parts of the country. Similarly, human
pyramids in the Dahi-Handi sport in
Maharashtra have left dozens crippled
for life. Even then, it is difficult to
regulate it.
When a crowd commits an act
which violates directions of a court,
what is to be done? No court order can
be enforced unless the state power sup-
ports it. Governments normally avoid
earning the displeasure of their elec-
torate. If reforms touching the religious
or cultural life of the society are desired,
public education prior to such reform
social leaders performed the unpleasant
duty of bringing in reforms. In the
recent past, leaders appeased voters,
not educated them. Courts, acting in
defence of the constitution, were left to
fight a lonely battle.
Now the Supreme Court is again
seized of the matter. It has refused an
interim stay to the new law, rightly so,
since there is a presumption about the
validity of a statute. The Court will have
to decide its constitutionality. Parties
will have to wait and respect the verdict
when it comes.
If any order of the court is defied
and people act openly against it, it is
disrespect to the constitution. It natu-
rally saddens everyone who loves con-
stitutional governance. One may differ
with the propriety of a courts order,
but to justify the disobedience is more
injurious.
The writer is a former judge of
Bombay High Court

32 February 13, 2017 | INDIA LEGAL | February 13, 2017 33

Interview/ Dr Chintan Chandrachud

DR CHINTAN CHANDRACHUD, at an early age, has

carved a niche for himself in the field of law. Coming
from a renowned lawyer familyhis father is a
Supreme Court judge and his grandfather was a Chief
Justice of Indiahe lives and works in London. His
book: Balanced Constitutionalism Courts and
Legislatures in India and the United Kingdom, was
recently released in India. INDERJIT BADHWAR,
Editor-in-Chief of India Legal, spoke to him on APN
News Face to Face programme. Excerpts:

What next? unlimited) which is cited as an author-

To say that the learning process ends is
incorrect, it takes a different shape.
Aside from that, I have started
practicing at the London office of
Quinn Emanuel Urquhart & Sullivan, a
leading international law firm which is
headquartered in Los Angeles. It
provides a good marriage of what I
have done in the past and what I plan
to do in the future.
Are you considered a bit of a rare bird
over there?
Theres a burgeoning community of
Indian lawyers in London now. As
legal markets are getting more and
more international, there are more
crossovers of Indian lawyers into the
Photos: Anil Shakya
UK, as well as UK lawyers into India.
Theres a great attraction in seeing how
itative source of law in Bangladesh,
Pakistan, Sri Lanka and several other
jurisdictions. In a sense, Kesavananda
Bharati provides you with a paradigm
example because on the one hand it
cited several other jurisdictions, case
law and legal authorities, and on the
other, it cited philosophy from other
jurisdictions. A sea change that you
notice after Kesavananda Bharati is
that at the time it was decided in 1973,
it was thought of as unusual for a con-
stitutional amendment itself to be
declared unconstitutional. That was
thought of as being a paradox.
That brings me to a question about the
NJAC decision by the Supreme Court
which was a direct confrontation.
What would be the lasting impact of

I Am Highly Sceptical of You have a PhD in law from

Cambridge, degrees from Yale and
Oxford, and before that, the Bombay
Law College. What drove you into
other legal systems or legal cultures
solve problems.

Can you give me any judgment from

Kesavananda Bharati on the Indian
political and social atmosphere; you do
see the two being related, dont you?
Most certainly. Very often, and this lies

Some of the Recent Judgments academia?

The intention after I left Bombay to
study at Oxford was to do Masters for a
year. A few months into the
India thats been cited in any signifi-
cant foreign court?
Indian judgments are very commonly
cited in South Asian courts. Theres the
at the heart of my book, you only fully
appreciate the significance of a judg-
ment 2-3-4 maybe even more years
after the judgment is pronounced.

of the Supreme Court programme, I realised that I had some

serious intellectual appetite which
could not really be satisfied.
Kesavananda Bharati case (it ques-
tioned whether the power of parlia-
ment to amend the constitution was
Since the NJAC judgment, there has
been uncertainty over what process
would be followed. The constitutional

34 February 13, 2017 | INDIA LEGAL | February 13, 2017 35

Interview/ Dr Chintan Chandrachud
amendment was struck down by the
court but the court did indicate there
must be some changes and the existing
system of appointments was flawed
and problematic. Therefore, to try and
fully analyse, we need to wait
a while.
Where Kesavananda enters into this
picture is quite interesting because on
the one hand, it was viewed as a safety
valvein other words, a situation
where the doctrine wouldnt be used
very frequently. Many people have
argued that the NJAC case wouldnt
really lead to a collapse of democracy,
for instance, in India. In many cases,
its a reshaping of the Kesavananda
doctrine in the NJAC case. One of the
reasons is that in the Kesavananda
case, focus is on broad over-arching
principles. In the NJAC, they try and
bring those principles down to the
ground and try to explain what they
will mean.
Can you cite other cases which you
would consider as seminal or
progressive which helped Indian
society move forward?
The judgment that comes to mind is
the Minerva Mills Case. What hap-
Indian judgments are
very commonly cited in
South Asian courts.
Theres the
Kesavananda Bharati
case... cited in
Bangladesh, Pakistan,
Sri Lanka and several
other jurisdictions
36 February 13, 2017
pened after the Kesavananda Bharati
case was that the constitution was
amended once again. Article 368 is
amended to categorically reject the
analysis in Kesavananda. In Minerva
Mills, the Supreme Courts interpreta-
tion of the constitution changes, focus-
ing less on the language used and more
on the institutions of government and
the scheme of the constitution itself. I
am highly sceptical of some of the
recent judgments of the Supreme
Court, but one example from the Delhi
High Court which I would like to cite
is the Naz Foundation case and the
fantastic judgment given by Justice AP
Shah wherein the Court reads down
Section 377
Could you summarise your point of
view on the case?
My major concern about the Naz
Foundation was that it involved an
abdication of responsibility by the
Supreme Court. The apex court almost
seems to suggest that there is a numer-
ical de minimis associated with the
protection of fundamental rights. In
other words, if you dont constitute the
right numbers, you are not entitled to
protection.
In India, the legislature is actually a
slavish extension of the executive the
executive privilege is ingrained into the
Indian system. In a system like this, it
is only the judiciary which can keep a
check on the runaway executive.
The court very often prescribes guide-
lines and legislation which become
very difficult to comply with, that tend
to denude the institutional authority of
the court itself. A good example of this
may be Vishakha vs State of Rajasthan
judgment in which the court prescribes
guidelines for sexual harassment in the
workplace. For over 13-14 years, the
judgment was not complied with. The
Supreme Court itself, public authori-
ties and institutions, did not set up
grievance redressal committees in
accordance with the courts judgment.
This is simply because the court lacks
the equipment and the infrastructure
that the parliament possesses. The
failure to observe the courts judg-
ments, in my view, seriously erodes
its authority.
know what the solution is.
There are judgments that are seeming-
ly set in concrete like the SR Bommai
case which has to do with centre-state
relations. Here, it was absolutely clear
that the acid test before a governor can
dismiss a duly elected government and
a floor test has to be proved in terms of
majority. And yet youve seen this year,
in the North-East and Uttarakhand,
that courts will continue to take up
and reopen cases which have been
decided by constitutional benches.
Why doesnt the Supreme Court come
down harder on these judges?
To start with, our Supreme Court is
under tremendous pressure and we
need to be mindful of that. If you com-
pare it to the US or the UK Supreme
Court, where its relatively straight for-
ward to track important judgments
made by the court, it is extremely diffi-
cult to keep track of all significant
judgments passed by the Supreme
Court from day to day. Therefore, what
tends to happen is that even important
judgments made by the Indian
Supreme Court tend to fall under the enough on getting it right on time. So,
radar. The good news is that we may for instance, several other jurisdictions
well know what part of the problem is. now recognise one of their fundamen-
The bad news is that we dont really tal principles of civil justice to be that a
case must be decided promptly and at
a proportionate cost. This is a way of
Backlog, pendency as they call it here, thinking really that needs to be incul-
is a huge problem because its actually cated into our system from the ground
the denial of access to justice. Dont level up. That means making changes
you see this as a gross injustice to the across the board -- whether it is in
people of India? terms of increasing the number of
This is undoubtedly a serious injustice. judges, setting time limits on trials,
I think one of the fundamental changing the way in which adjourn-
problems, in terms of principle, with ments are granted or deciding in which
our system is that we emphasise too cases you should or should not be
much on getting it right and not allowed an appeal.
Who would make this reform? Should
it come from the judiciary?
Balanced Unfortunately, the state of affairs that
Constitutionalism
Courts and
currently exist in our nation is that it
has to be a combined effort. I think, for
Legislatures in
India and the instance, for the legislature or the exec-
United Kingdom utive to try and attempt to make these
reforms wholesale, independently,
Author: Chintan would be extremely difficult and, in
Chandrachud
Publisher: Oxford
fact, would be wrong. It must be a col-
laborative exercise between the legisla-
University Press
Printed pages: 292 ture, the executive and the courts. This
Price:`995 is not easy.
I think one of
the fundamental
problems, in terms
of principle, with
our system is that
we emphasise too
much on getting it
right and not
enough on getting
it right on time.
One initiative that can certainly come
from within the judiciary is the
constant changing of benches. There
is a judge who understands the case,
then suddenly the case is postponed.
Out comes another judge or a double
bench. This casts aspersions on the
integrity of the system and on
the individuals.
There are, in fact, some low hanging
fruit which I think we should grab.
One of them may well be, for
instance, setting up a specialist judici-
ary. And again, this is associated with
so many of the pressures that are
placed on our judges. Our judges are
often hearing tax cases, criminal
appeals, civil cases, company law
cases. The next day they may be hear-
ing a dowry case, for instance. The
amount of pressure and the expertise
that we demand of them is really
unrealistic.
The biggest litigant is the government.
Absolutely, and, of course, the problem
there being that the government is
itself afraid that if it doesnt appeal,
there will be accusations that may be
made against it.
| INDIA LEGAL | February 13, 2017 37
Probe/ Chopper Scam
UNDER A CLOUD
AugustaWestland

Murky
helicopter

Hari Jaisingh, Christian Michel,

Waters
petitioner in the
AgustaWestland deal
He says journalists are
seen as the Fourth Pillar
of Democracy and they
have to adhere to ethics
A petition wants the apex court to examine if journalists and principles and not do
were allegedly paid in the AgustaWestland deal to any wrong despite temp-
influence the government. Will more skeletons tumble tations ...because of a
few indulging in corrup-
out of this closet? tion, the entire profes-
By Ramesh Menon sion shouldnt be tainted. the media.
facilitator in the
AgustaWestland deal
The petition mentions
that he was
allocated `217
crore to ensure
smooth disbursement
of funds to key
Indian officials and
several influential
members of

D
ID some journalists lobby
in their publications in
return for the hospitality
and pay-offs given by
Italian firm
AgustaWestland and its
parent company, Finmeccanica, in the
multi-crore chopper deal? The Supreme
Court is hearing a petition in this
regard filed by veteran author and jour-
nalist Hari Jaisingh, who was an editor
at The Indian Express and The Tribune.
The petition sought a court-moni-
tored probe to investigate if journalists
were allegedly paid to take a certain
position on the AgustaWestland heli-
copter deal. Though the bench headed
by Justice Dipak Misra did not issue a
formal notice to the government, it gave
a copy of the petition to Attorney
General Mukul Rohatgi asking him to
come back with a response by the end
of February.
PARAMETRES LOWERED
The Indian proposal to acquire 12 heli-
copters for VVIPs was cleared in 2010
by the Cabinet Committee on Security.
Numerous changes were made in the
specifications and after long negotia-
tions, the deal was okayed. However, it
was later cancelled. In August 2013, the
Comptroller and Auditor General (CAG)
unearthed several improprieties in the
deal such as parameters being lowered
so that the deal could come through. In
fact, CAG had in a report to Parliament
pointed out that significant departures
were made from the established defence
procurement procedure rules to
award the `3,727-crore contract for
the helicopters.
Jaisinghs plea was that the apex
court should intervene in the ongoing
investigation of the CBI and the
Enforcement Directorate and direct
them to investigate whether the Italian
firm had paid journalists to influence
the government into agreeing to the
deal. He wanted the central agencies to
give details in a sealed cover to the
Supreme Court and get one of its retired
judges to head a commission of inquiry
to investigate allegations of corruption
and influence-peddling in the Indian
media and to suggest corrective meas-
ures to safeguard against such ills.
Geeta Luthra, senior advocate for the
petitioner, told India Legal that the
focus is to restrict the case to the role of
journalists. If we want honest and
unpaid reporting, this is something all
of us should be concerned about. If
there is criminality involved of journal-
ists being paid, they should be brought
under the purview of the Prevention of
Money Laundering Act under the
amended Section 3. Those who received
money should be investigated.
FREEBIES FOR MEDIA
The petition said a group of Indian jour-
nalists was taken on a fully paid trip to
Italy before the deal was finalised. The
petition said a facilitator, Christian
Michel, was allocated `217 crore by
Giuseppe Orsi, the CEO of
Finmeccanica, and Bruno Spaglioni, the
CEO of AgustaWestland, to ensure the
smooth disbursement of funds to key
Indian officials and several influential
members of the media. Out of this
amount, about `50 crore was set aside
to specifically manage the Indian media
and Michel organised a trip for Indian
journalists to Italy. One of the journal-
ists on the trip is already being investi-
gated by the Enforcement Directorate,
the petition said.
Jaisingh said that there was no
attempt by investigating agencies to go
after Indian agents and journalists to
locate the exact money trail. The alle-
gation of corruption by journalists
acquires a distinctly sinister character
since these quid pro quo transactions
involve influence-peddling and are not
The petitioner wanted the
central agencies to give details
in a sealed cover to the SC and
get one of its retired judges to
head a commission of inquiry to
investigate allegations of cor-
ruption and influence-peddling.
immediately identifiable as criminal
acts. There is direct evidence to suggest
the involvement of certain Indian
media persons and journalists who have
taken pecuniary benefits from agents of
foreign defence manufacturers. The
Indian media has acted as a sentinel of
democracy exposing wrongs and the
mightiest persons for corruption and
bribery. As democracy was founded on
a system of morality and values, it can-
not be left to the manipulation of
crooks, scoundrels and unscrupulous
vested interests, he said.
Jaisingh told India Legal: My only
motivation to file this PIL was that if
journalists were paid by the firm and
they influenced the deal, then the pub-
lic has a right to know. Journalists are
seen as the Fourth Pillar of Democracy
and they have to adhere to ethics and
principles and not do any wrong despite
all temptations and pressures. The
media in India has done a great job
after independence and just because of
a few indulging in corruption, the entire
profession should not be tainted. I just
want the investigators to find out if they
took the money that was allocated by
the company to manage the media.
The first allegation about the
involvement of defence middlemen and
payment of bribes emerged in February
2012. In February 2013, the Defence
Ministry initiated action to cancel the
contracts. The petition said that it was
more than apparent that
AgustaWestland had appointed middle-
man Michel for the express purpose of
carrying out espionage in the Indian
defence sector via some members of the
media through their influential govern-
ment links.
During this time, investigation of the
chopper deal was handed over to the
CBI by the Defence Ministry which had
registered a preliminary inquiry against
11 individuals, including SP Tyagi, for-
mer Indian Air Force chief. The Court
rejected a special investigation team
probe into this case after the centre said
that a CBI probe was already on. It
remains to be seen how the government
responds to the Court directive.

38 February 13, 2017 | INDIA LEGAL | February 13, 2017 39

States/ Madhya Pradesh

Costly Price for

By transferring upright SPs of four
districts, the state government
has violated Supreme Court
guidelines which say that IPS
employees of these bigwigs.
Investigations revealed a greater rot.
After arresting and interrogating
employees of Manish and Satish
Saraogi, coal traders, the SIT allegedly
also discovered the involvement in the

Honesty
officers should have a fixed
two-year term in field postings
By Rakesh Dixit in Bhopal
hawala racket of Sanjay Pathak, the
state minister for micro small and
medium enterprises. However, before
Tiwari could interrogate them, he was
transferred to Chhindwara. No reason
was assigned. The SP of Katni district, The SP of Bhind, Navneet Police morale hit a
Gaurav Tiwari, was Bhasin, was transferred low in September

I
N violation of Supreme Court
guidelines stipulating a fixed
two-year tenure for IPS officers
all over India on a field posting,
the Madhya Pradesh government
has prematurely transferred
some of them. In the last four months,
SPs of four districtsBalaghat, Jhabua,
Bhind and Katnihave been trans-
ferred under political pressure. This has
led to protests as these officers were
seen as honest and diligent.
In 2006, the Supreme Court, based
on a petition by former DGP Prakash
Singh, directed the centre and states to
set up Police Establishment Boards to
decide selection, promotions and trans-
fers of police officers and other staff till
the governments came up with an
appropriate legislation. In October
2013, the Union government sought to
tweak this rule through a set of amend-
ments but the Court rejected the move.
INEFFECTIVE BOARD
Following the SC guidelines, the
Madhya Pradesh government formed a
Police Transfer Board (PTB) with the
director-general of police, principal sec-
retary, home and secretary, home as its
members. The Boards stated objective
was to insulate the transfers and post-
ings of field officers from political pres-
sure and ensure a two-year stint for
SPs. It was empowered to seek justifica-
tion from the administrative depart-
ment for premature transfers, obtain
the views of the officer who would be
transferred and not recommend it
UNFAIR ORDERS: People protesting against the transfer of SP Navneet Bhasin in Bhind
unless satisfied with the reasons.
However, this was bypassed by the state
government as seen in the premature
transfers of SPs.
On January 9, the SP of Katni dis-
trict, Gaurav Tiwari, was abruptly trans-
ferred for allegedly exposing the role of
BJP leaders in a `500-crore hawala
racket. Tiwari, a 2010 batch IPS officer,
had barely completed six months in
Katni before the state government shift-
ed him as SP, Chhindwara. Soon after
taking charge in Katni, Tiwari had con-
stituted a Special Investigation Team to
investigate complaints of massive
hawala operations through fake bank
accounts. The SIT detected nearly 100
bogus accounts of industrialists, coal
traders and mining barons.
Subsequently, the income tax depart-
ment stepped in to assist the investiga-
tion under its nationwide operations to
identify illegal bank deposits
post-demonetisation. The joint investi-
gations yielded sensational informa-
tionover `500 crore was deposited in
fictitious accounts in various bank
branches in Katni, a business hub 400
km east of Bhopal. Many of these
accounts were opened in the name of
ROUTINE TRANSFER?
Chief Minister Shivraj Singh Chouhan
termed it as a routine administrative
exercise. He also said the SP had
exceeded his brief as investigation of
hawala transactions was not the polices
job. State BJP president Nand Kumar
Singh Chouhan too asserted that it was
the state governments prerogative to
transfer a police officer, regardless of
whether he was in the post for six
months or less.
Members of the PTB justified this
transfer saying that if an officer is
moved from one field posting to anoth-
er, then, as per the SC guidelines, it is
not mandatory to give reasons for it.
Reasons need to be given only if an offi-
cer is taken off field duty, they said.
Significantly, a day after Tiwaris
transfer order, a member of the PTB
and principal secretary, home, Seema
Sharma, was transferred to the general
administration department. She was
reportedly against Tiwaris transfer.
Director-general of police RK Shukla
too was opposed to the movehe had
called Gaurav Tiwari the pride of the
police forcebut yielded when the gov-
ernment transferred Tiwari to another
field posting, said sources.
In 2006, the Supreme Court
directed the centre and states to
set up Police Establishment
Boards to decide selection,
promotions and transfers.
abruptly transferred to Khandwa district, last year when the
for allegedly exposing allegedly under home minister
the role of BJP leaders RSS pressure. He had ordered the transfer
in a `500-crore clamped down on mafias of Balaghat
hawala racket. with close political links. SP Asit Yadav.
Incidentally, Tiwari was shunted out PTB on the grounds that he was merely
of his previous posting too as Balaghat shifted from one field posting to anoth-
SP before he had completed his term. er and therefore there was no violation
This time, his investigation into timber of SC guidelines.
smuggling and illegal felling of forests As for the SPs of Dhar and Jhabua,
revealed the alleged involvement of it is believed they too got the marching
then collector of the district. The IAS orders under RSS pressure for arresting
lobby had moved against him. saffron activists for whipping up com-
His transfer now to Chhindwara has munal violence during Dussehra festivi-
created quite a storm in Katni where he ties in October, in two predominantly
was popular due to his fearless stance tribal districts in western MP.
and direct connect with the people. Police morale hit a low in September
They protested and demanded last year when the home minister
revocation of the transfer order. Unrest ordered the transfer of Balaghat
also grew following media reports that Inspector-general of Police DC Sagar
Nand Kumar Singh Chouhans son and SP Asit Yadav. They faced saffron
Harsh Chouhan was a business partner wrath over alleged custodial thrashing
of Pathak. The minister, incidentally, of district RSS chief Suresh Yadav. He
defected to the BJP from the was arrested for circulating a provoca-
Congress in 2014. During his tive clip on WhatsApp regarding a pur-
re-election to the assembly from ported speech of Asaduddin Owaisi,
Vijayraghavgarh in 2014, Pathak had president of the All India Majlis-e-
declared assets worth `141 crore. The Ittehadul Muslimeen. Seven junior
Congress too took up the issue and police officers were booked for attempt
demanded the resignation of Pathak.
Similar protests followed the trans-
to murder and robbery in the same
incident. For several days, Balaghat
fer of Bhind SP Navneet Bhasin in town was in turmoil as people protested
December to Khandwa district, alleged- the governments vendetta against
ly under RSS pressure. He had clamped the police.
down on mafias with close political In MP, uneasy lies the head that
links. His transfer too was justified by wears a police cap.

40 February 13, 2017 | INDIA LEGAL | February 13, 2017 41

Crime/ Meghalaya
Shillongs Shame
The involvement of a powerful politician in the repeated rape of a
minor has exposed the thriving sex racket in this hill state and
embarrassed the government no end
By Ramesh Menon
T
HE peace and quiet of the
picture-postcard hill town of
Shillong has been shattered
in recent weeks with angry
protests by civil society after
Julius Dorphang, an independent MLA,
allegedly repeatedly raped a 14-year-old
girl. It has embarrassed Meghalaya
Chief Minister Mukul Sangma as
Dorphang is part of his Congress-led
coalition government. That is not all. At
the centre of the sex scandal is
42 February 13, 2017
UNI
Marvelenes Inn, a guest house owned
by the son of Home Minister HDR
Lyngdoh. As civil society protests mount
demanding his resignation, the goings-
on in the guest house are also now
being investigated.
Agnes Kharshiing, president of Civil
Society Womens Organisation, told
India Legal: The home minister must
quit ensuring an independent enquiry.
What we have seen is just the tip of the
iceberg. Numerous guest houses attract
sex workers, encouraging the trafficking
of minor girls. It is difficult to crack
down as there are political powers that
help it thrive. We are determined to
fight this as this is the only way to stop
the exploitation and violation of young
girls by influential people.
The victim said in her FIR that she
was taken to the Inn, situated in a posh
area in the state capital, several times to
serve clients. She said that Dorphang
raped her twice. The incidents, she said
were at a guest-house in Motinagar in
NEED FOR STRONGER ACTION: Chief Minister Mukul Sangma and (right) MLA Julius
Dorphang, who is now in judicial custody
Shillong and at Umiam, a lake resort, on
the way to Guwahati from Shillong.
Police are now investigating these two
places frequented by tourists.
POLITICIANS GUILTY
Dorphang is now in judicial custody
after he was arrested by a joint police
team of Assam and Meghalaya. They
traced him to an inter-state bus termi-
nus in Guwahati after he went missing.
Incidentally, Dorphang is a former
chairman of Hynniewtrep National
Liberation Council, an armed rebel
group that has been involved in
numerous murders, extortions and kid-
nappings. After he came overground
and surrendered in 2007, he entered
politics and got elected as an
independent MLA in 2013.
Rymbai, the owner of Marvelenes
Inn, claimed that he was unaware of the
alleged sex racket, which he said, was
known only to a waiter who had brought
the girl to the guest house. The girl told
the police that she was taken to
Marvelenes Inn in mid-December. She
is from a poor family and has studied
only till Class III. She was reportedly
brought to Shillong by a woman who
lured her to the hill town with the
promise of a better life. But instead, she
was forced to sleep with different men.
This went on for a year till she decided
to go to the police with the help of two
women who agreed to help her.
GROWING VIOLENCE
Shillongs Superintendent of Police
Vivek Syiem told India Legal that the
police is now investigating various leads
from places where the minor was sexu-
ally assaulted and is determined to get
to the bottom of the case. There is a
high level of trafficking of girls in
Meghalaya because of rapid urbaniza-
tion and resulting migration. The racket
here involves high-end people. Thanks
to an active civil society movement, we
often get leads. We have already made
arrests and with investigations progress-
ing, many more will be identified before
we file a chargesheet by mid-February.
Lyngdoh initially chose to remain
silent on the matter but later told the
press that the law would take its course.
Protesters along with the opposition are
demanding that he quit. Sangma has
There is a high level of
trafficking of girls in Meghalaya
because of rapid urbanisation and
resulting migration.
Vivek Syiem, Superintendent
of Police, Shillong
also preferred not to rake up the issue.
All he said was: Until proven guilty, the
law of the land should be allowed to
take its course and ensure that there is
no angle for any influence into the case.
According to the Meghalaya police,
there were as many as 394 rape cases
between 2013 and 2015 and 321 cases of
molestation and sexual harassment
during the same period. Last year,
there were more than 85 rape cases
registered. Nearly two dozen of the
victims were minors.
Violence against women has been on
an increase in Meghalaya for the last
few years. It has been a worrisome soci-
ological phenomenon in a state known
to practice matriarchy. At a superficial
level, it is generally accepted that
women are in control and are respected.
Anglela Rangad, member of Thma U
Ranglijuki, an NGO, said: Violence
against women is increasing at a fright-
ening rate. The number of cases report-
ed is huge. Think of how many are not
reported. We have a catastrophe on our
hands. There is a huge racket involving
powerful political functionaries. Many
victims are afraid of speaking about it.
We have been able to get this case
moving only because we had Meena
Kharkongor, chairperson of the
Meghalaya State Commission for
Protection of Child Rights, filing
numerous FIRs after meeting the girl.
We will soon see a can of worms open-
ing and some of those involved are
important personalities.
Rangad points out that for long, the
state has ignored systematic exploitation
of people in its unregulated coal mines
and other informal sectors which has
created a lot of anger and frustration.
Hopelessness and powerlessness are
emotions that have been aggravated as
fair play and justice seems to be a far cry
for the poor. Meghalaya needs to look at
serious sociological and economic prob-
lems that are giving rise to law and
order situations, including sexual and
domestic violence as gender based
notions of power fester, she said.
| INDIA LEGAL | February 13, 2017 43
Aviation / DGCA
Flight Safety at Peril?
In a shocking answer to an RTI query, this regulator had said it lost all data related to planes and pilot
licences in August 2015. Will this compromise national security and the lives of passengers?
By Shobha John
I
N a shocking case of laxity and
devil-may-care attitude, it has
emerged that the Directorate
General of Civil Aviation (DGCA)
lost all data pertaining to flights
and pilot records in August 2015.
At least that is what it told the Central
Information Commission (CIC) when
asked to answer an RTI filed by activist
Anil Sood.
Sood had sought the following
information from the DGCA: List of
pilots registered with the DGCA as
on November 30, 2015; list of
type-rated pilots (including those who
were Indian and foreign) and list of
first officers (co-pilots) during the
same period.
Speaking to India Legal, Sood said:
I had filed this RTI with the DGCA in
2014 but it refused to answer my
44 February 13, 2017
queries. Subsequently, I had to go to
the CIC in 2015 and the case was
heard later in 2016. The DGCA told
CIC that its servers crashed in August
2015 and all the above information had
got destroyed. It further stated that it
was in possession of some of the
records in the physical form that are
voluminous in nature and hence, infor-
mation on any particular licence hold-
er could be provided.However, the
information sought in bulk was not
possible at this stage.
In a scathing indictment of the
DGCA, Bimal Julka, the Information
Commissioner, said: The Commission
observed that this was an appalling
state of affairs in respect of record
keeping by the respondent public
authority (DGCA) especially when it
concerns national security and safety
FLY SAFE
If aviation security
is breached,
the consequences
will be huge
of passengers. He asked the DGCA to
re-visit the issues raised by the appel-
lant in a more serious and considered
manner rather than adopting a casual
approach in replying to the RTI
application. He asked it to consider
maintaining such data in a digitised
format.
If this is the casual attitude of the
regulator of a highly technical and sen-
sitive sector such as aviation, how safe
are the lives of passengers and airline
crew? In such a scenario, who would
take responsibility if another 9/11
occurred, asked Sood. If aviation secu-
rity is breached, the consequences will
be huge. Therefore, there is an urgent
need to look into such a serious lapse
on the part of DGCA and initiate prop-
er action, he said.
Another reason, he alleged, for the
DASTARDLY
ATTACK
Loss of papers by
the DGCA could
make terror attacks
such as 9/11 easier
youtube
DGCA claiming that the server had organisation and began the digitalisa-
crashed was because relatives of many
DGCA employees were pilots in India.
If these records are made available,
the nexus will be out in the open. The
DGCA is taking everyone for a ride. I
have sent this order to the
tion of records there, told India Legal:
If indeed records have been lost, it is a
staggering loss. It nullifies all that has
been done in the past. Data is the most
important thing in aviation. A loss of
this could affect Indias safety ranking
International Civil Aviation by ICAO.
Organisation (ICAO) too, said Sood. Bhushan, who is presently
Administrative Member, Central
STAGGERING LOSS Administrative Tribunal, Ahmedabad
This serious lapse by the DGCA has Bench, added: Surely the DGCA
shocked those in the aviation sector. would have a backup system. I had
EK Bharat Bhushan, the former direc- started an e-project when I was in the
tor-general of the DGCA (2010-2012) DGCA whereby pilot licences were
who fought against corruption in this computerised and flight safety and
If indeed records have been lost, it is a staggering loss. a fraud one. Flight safety in India is
It nullifies all that has been done in the past. Data is the
most important thing in aviation. A loss of this could
affect Indias safety ranking by ICAO.
EK Bharat Bhushan, former D-G, DGCA
The Commission observed that this was an appalling
state of affairs in respect of record keeping by the
respondent public authority (DGCA) especially when it
concerns national security and safety of passengers.
Bimal Julka, Information Commissioner
administrative records too were to fol-
low. I dont know the state of that now.
Incidentally, a downgrade by ICAO
would seriously affect Indian aviation
as airlines from India will not be
allowed to begin new routes or sign
agreements. In 2012, ICAO had placed
India among 13 countries which per-
formed the worst in air safety. This
also led to the FAA downgrading India.
The ratings were restored in 2015. The
next ICAO audit is likely in November
this year.
India Legal spoke to insiders in the
aviation sector and what was revealed
was a distinct lack of trust in the
DGCA. A senior commander of an air-
line said that the loss of flight data was
a serious breach of safety. While air-
lines are supposed to preserve data of
all flights for three months, the DGCA
is supposed to keep them longer. These
are usually related to incidents/acci-
dents. I doubt if this is a server failure;
it could be an attempt by the DGCA to
wipe out data of a violation by some
influential pilot.
Loss of data on pilot licences is a
serious issue as it will be easy for a
rogue pilot to assume the identity of a
legitimate aviator and commit an act of
terror. Loss of this data means you
dont know how many hours a pilot has
flown, what flights/routes he has done
and what violations have been commit-
ted. This equalises a genuine pilot and
indeed a myth.
Another commander asked how the
DGCA could say it had lost all data
when it asks each and every document
in physical form. The DGCA is not
paperless. Every time we send our
papers for licence renewal, the DGCA
asks for a hard copy of our radio
telephony licence, route checks, instru-
ment ratings, etc. So there is always a
physical back-up. Any organisation
which doesnt want to go digital, has
something to hide.
It is obvious that passengers are on
a wing and a prayer.
| INDIA LEGAL | February 13, 2017 45
Legal Eye/ Mamatas Land Acquisition

Haunted by Singurs Legacy nity to establish their claim for determi-

Though the feisty chief minister stopped the Nano plant in the state, she is herself in a bind now from 70 percent of families whose land
over protests regarding a power project in Bhangar. But there are legal solutions to this impasse is taken for public private partnership
(PPP) projects. This could go up to 80
By Sujit Bhar percent for a private project.
In fact, the Supreme Court too
BITTER
TUSSLE would prefer to stick to this Act as can
Police vehicles be seen from the observations of Justice
dumped during V Gopala Gowda, one of the judges who
farmers protest delivered the Singur verdict. Justice
aganist
acquisition of
Gowda had said: The acquisition of
landwas sought to be disguised as
land in Bhangar
acquisition of land for 'public purpose'
in South 24
Parganas district in order to circumvent compliance with
the mandatory provisions of Part VII of
the L.A. Act. This action of the State
Government is grossly perverse and ille-
gal and void ab initio in law and such
an exercise of power by the state gov-
ernment for acquisition of lands cannot
be allowed under any circumstance.
With regard to compensation, he
had said: A joint inquiry appears to
have been conducted by the Land
Acquisition Collector without giving
Jhumur Bhowmick
them (farmers) an adequate opportu-
nation of reasonable compensation for
acquisition of lands by presenting true
and correct market value of the lands.
areas. Plus, a solatium equal to 100
percent of the market value of the prop-
erty including value of assets will have
to be paid.
This judgment has given a fillip to
the farmers demands. According to the
This has left Mamata in a quandary
over Bhangar. What is the way out?
Act in force now, it will be the market
value multiplied by a factor of, at least
Ironically, Finance Minister Arun
Jaitley, provided the answer in a
one to two times... for land acquired in Facebook post, where he said:
rural areas and at least one time the Acquisition of property is a List-III,
market value for land acquired in urban Entry 42 subject provided for in the
The acquisition of landwas sought to be disguised as
acquisition of land for 'public purpose' in order to circum-
vent compliance with the mandatory provisions of Part VII
of the L.A. Act. This action of the State Government is
grossly perverse and illegal.
Justice V Gopala Gowda, who delivered the Singur verdict
The provisions of article 254(2) provide that
a State Government can bring a legislation
on a Concurrent List Subject which conflicts
with the Central legislation provided the
Presidential assent is given.
Finance Minister Arun Jaitley in a Facebook post

S
INGUR has come back to ten police vehicles were torched and
haunt West Bengal Chief
Minister Mamata
one person died from bullet wounds.
Finally, on January 16, 2017, the police
Legal Dimensions  Carrying out a social impact
assessment
 Survey of the land to analyse whether it
that the requirement is a mandatory one.
This can become important if such notifi-
cation was missing in the Bhangar case.
Hearing objections: Section 15(1) pro-
vides that any person interested in any
land which has been notified as being
Banerjee. On August 31, arrested Kalu Sheikh, a leader of the

2016, the Supreme Court
had declared the acquisi-
tion of 1,053 acres by the Left Front
government for a Nano plant at Singur
as illegal. This was something Mamata
had been fighting for all along and it
helped her win the election.
However, two months later when
Mamata tried to set up a power substa-
tion in Bhangar in South 24 Parganas
district, farmers there protested. In
2013, some 13 acres of their land was
acquired but they felt they hadnt been
paid a fair price. They now wanted their
land back. As protests spread, at least
agitation. Mamatas policy of not taking
land from farmers for any development
project is now creating hurdles in
her path.
With the central government allow-
ing its final ordinance on land acquisi-
tion to lapse, the original Land
Acquisition, Rehabilitation and
Resettlement (LARR) Act 2013 is back
in place (See box 1). This Act has strin-
gent clauses which make negotiations
tedious and time-consuming, requiring
project budgets to be revised so often
that they become unviable. One clause,
for example, says that consent is a must
L
and acquisition in India is gov-
erned by the Right to Fair
Compensation and Transparency
in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. Till 2013, land
acquisition was governed by the Land
Acquisition Act of 1894. The scope of
the Act includes land acquisition by the
central government and states, except
Jammu & Kashmir.
This subject has many legal dimen-
sions.
While acquiring land, these aspects
have to be ascertained:
 Issuance of a notification (publication
of the same)
is being acquired for a public purpose or
whether there is any alternate land that
can be acquired
 Hearing objections with regard to
acquisition.
 Rehabilitation has been incorporated in
the new Act and procedure for the same
has been laid down
 The minimum amount of compensation
has been clarified.
Many judgments have come out with
regard to these sections.
Notification and Publication: In the
Khub Chand vs. State of Rajasthan, the
Court held that Section 4(1) of the Land
Acquisition Act, 1894 clearly suggests
In Habib Ahmed vs. State of Uttar
Pradesh, the Court held that neither the
notification nor the declaration can be
quashed on the ground that there was no
necessity for acquiring the land for a pub-
lic purpose. Whether the land is required
for a public purpose or not has to be
decided solely by the state government.
Payment for Damages: Section 13 pro-
vides that the officer shall at the time of
entry into the land in question pay for any
damage caused. Damage means any
harm done to the land during the course
of surveying it and other acts necessary
to ascertain whether it is capable of being
adapted for public purposes.
required or likely to be required for a pub-
lic purpose, may within 60 days from the
date of the publication of the preliminary
notification, object to: (a) The area and
suitability of land proposed to be
acquired; (b) Justification offered for pub-
lic purpose; (c) The findings of the Social
Impact Assessment report.
Rehabilitation and Resettlement:
Section 16 provides for the preparation of
a Rehabilitation and Resettlement
Scheme by the administrator. How much
of this was prepared and provided will
have to be settled first.
By Navank Shekhar Mishra
and Sandeep Kumar

46 February 13, 2017 | INDIA LEGAL | February 13, 2017 47

Legal Eye/ Mamatas Land Acquisition Media Watch

THE ORIGINAL THRUST

Mamata Banerjee at a
Singur rally, one of few that
formed the plinth of her
political agitations in
West Bengal
Concurrent List. The provi-
sions of article 254(2) clearly
provide that a State
Government can bring a leg-
islation on a Concurrent List
Subject which conflicts with
the Central legislation pro-
vided the presidential assent
is given....States are thus fully
empowered to amend the
2013 Land Law....
Tamil Nadu took this
route for land acquisition in
2013 and enforced it from
January 5, 2015. It inserted a
new section (105A), thereby
adding a Fifth Schedule to
the existing four in the 2013
Act and thus exempting it
from the provisions of the Act. This
Other Options amendment allows the TN government
to apply the compensation, rehabilita-
Soft
on
Hindutva
ne intriguing fea-
O ture of the Jallikattu
protests in Chennai
was the medias self-cen-
sorship concerning anti-
Modi sentiment. Many pro-
testors openly accused the
media of focusing on
issues like the anger
against PETA but suppress-
ing anti-Modi slogans being
raised at Marina Beach.
What caused this near
blackout is unclear but for
all the days that the nation-
al media and its celebrity
anchors and reporters
camped there, the sloga-
neering against Modi and
demonetisation was delib-
erately played down. That
seems to suggest some
sort of an unwritten under-
standing on the part of the
Women at War
he Indian Womens Press Club in
electronic media to avoid
showing any public opposi-
tion to the PM. The youth,
for instance, are angry
about unemployment and
demonetisation and used
the Jallikattu protests to
express their frustration.
None of this was seen on
news channels. Clearly, a
new meaning of soft
Hindutva has emerged.
Pressure
Tactics
he two biggest news-
T paper chains, The
Times of India and
Hindustan Times, are usually
at war with each other. Now,
they seem to have united in
a common cause: to put
pressure on the government
in the pre-budget period to
reduce taxes and provide
concessions in areas where
it impacts the newspaper
industry. The Times ran a
rare editorial which spoke of
the existential threat to the
industry, and pointed out
areas where the government
could ease the financial
burden, including the GST
bill. HT has also been
lobbying for concessions
and had shut down many
editions. The ploy seems to

Two other options exist for the Mamata government

to make land acquisition easy and in line with her
stated policies:
tion and resettlement provisions of the
2013 Act to the listed legislations in its
own way. It also allows the state to add
T the heart of Delhi is normally a
quiet place to have a homely meal
or catch a press conference. Now, there is
have worked. Union Minister
for Information and
Broadcasting Venkaiah
Naidu issued a statement
or delete legislations in the Fifth an internal war brewing over a clause
Land Pooling: needs for a major ect because the inserted by the management committee saying he was looking into
Schedule as conditions change. Hence,
Land pooling came project, develop the fraction of the land regarding the booking of the space for the problems faced by the
compensation rates could also change.
into effect around project in time and returned may not meetings or press conferences. A print industry. Profits may
Two other statesRajasthan and
the time of the return a fraction of be suitable for farm- WhatsApp group comprising over 130 be shrinking but the
Green Revolution the land pur- ing any more. Madhya Pradesh have also followed
IWPC members has demanded removal clout remains.
when farmers vol- chased/acquired to Lease Option: The this route to amend many labour laws
of the offending clause in the booking
untarily did away the original owners. long-term lease that fall under the Concurrent List.
form. The clause seeks a declaration that:
with their small Once a big project option will not only This is a path that Mamata
Nothing will be said which will be anti-
tracts of land and comes up in a yield regular income could explore.
national, question the integrity of the
yielded to large neighbourhood, the to the landowner However, even in trying to pass an
country, amount to sedition or cause harm
contiguous plots. costs of the but also allow him ordinance, she could get caught in her
This enabled mech- returned land would to renegotiate terms to the reputation of the club. Members
own policy netnot to acquire land have sent an official letter demanding the
anised farming and appreciate more after completion of from unwilling farmers. This has result-
gave large yields, than the larger the lease period. clause be withdrawn. The letter con-
ed in the acquisition of small, fractured cludes: It is a journalists club where free-
benefitting all stake- portion. However, that could
plots that are not contiguous and hence, dom of speech and expression have been
holders. However, this present a legal
Here, the gov- also depends heav- minefield for the unsuitable for large industries. Due to and must continue to be encouraged and
ernment may pur- ily on employment government and this, many large investments have died protected. Many NGOs use the club
chase or acquire opportunities avail- time could be lost prematurely. because it is centrally located and com-
more land than it able from this proj- in negotiation. Mamata, it seems, is caught between paratively cheap to rent space. The matter
a rock and a hard place. remains unresolved.

48 February 13, 2017 | INDIA LEGAL | February 13, 2017 49

 Satire/Dilip Bobb
A Friend in the White House
W
hat exactly did President
Donald Trump and Prime
Minister Narendra Modi say
to each other? Unlike Trumps conversa-
tion with Nawaz Sharif, gleefully trum-
peted by Pakistan media, his telephonic
exchange with Modi remains in silent
mode. Now, thanks to a distinctive
mole, the conversation can be uploaded.
Excerpts.
Trump: Hi, Im terrible with these for-
eign names but Im told you are called
Namo for short? Fantastic name,
Hindus have fantastic names, I love
Hindu, fantastic people
Modi: Thank you, Mr President, yes I
had to shorten my name after the
media got after me for a suit I wore
while sitting with your predecessor. It
had my full name monogrammed
Trump: We have much in common.
Fake media, fake news. Plus, I like my
monograms, its on all my buildings.
Talking of buildings, we need to build
on the relationship between the US
and India. You have a great reputation
and you are a terrific guy, according to
my friend Putin. India is a fantastic
country, fantastic place. Hindus are the
most intelligent people, your country is
amazing. All the Hindus I know are
fantastic people.
Modi: Thank you, yes Hindu civilisation
is an ancient one and we invented
many wondrous things in the Vedic
ages, but I have to tell you
Trump: Do you remember what I said in
my campaign speech in New Jersey,
that the Hindu community will have a
bigly friend in the White House?
50 February 13, 2017
Modi: Yes, I remember but I have to tell
you.
Trump: I also hear youre pretty big on
social media, just like me. I like to
tweet my executive decisions. I can tell
we are going to be great friends, best
friends, BFF. Have I told you how
much I love Hindu
Modi: Yes you have, but I need to tell
you something about India
UdayShankar
Trump: I know all about India, I have
some luxury properties there, just
my name, someone elses money, thats
the art of the deal. I must send you a
monogrammed copy of my book. The
fantastic thing about India is
that it has been a great friend to the
United States in the fight
against Islamic terrorists..Great
friends, BFFThats why I love
Hindu
Modi: Yes, we must be united against
terrorism but I need to point out
Trump: By the way Namo, I am so excit-
ed to be working with you. I hear you
have been very energetic in reforming
Indias bureaucracy. Amazing, fantastic.
I am doing some serious bureaucratic
trimming right here in the United
States. Making America great again.
Modi: I am also making India great,
without the again. I still need to point
out that we have a lot of minorities
here as well.
Trump: I know the feeling. Some bad
dudes are in this country, drugs,
guns, counterfeit currency, cross-bor-
der crime.
Modi: Exactly. Wish I could build a wall
between us and that country which
encourages terrorism.
Trump: Sorry, my geography isnt that
great. Which country?
Modi: Hint. It is not on the list of seven
I hear you are planning to ban immi-
grants from but it would be nice if it
can be on the list you are working on
for Extreme Vetting. Talking about
extreme vetting, I have some concerns
about your proposals on visas.
Trump: Not to worry, you dont need a
visa to visit me in America. You have
a best friend in the White House
now, not that Muslim immigrant
from Kenya.
Modi: Not my visa, the H1B ones.
Trump: Hey, Im thinking of doing you
guys a favour. My guys have proposed
doubling the salary they get. Isnt that
great! As I said, you Hindus have a
friend in the White House.
RNI No. UPENG/2007/25763 Postal Regd. No. UP/GBD-197/2014-16
3ULQWHGRQHYHU\PRQGD\ SRVWHGDW6XE3RVW2IFH6HFWRU1RLGD