Libertatem Magazine - Issue 39 [April 2018]

APRIL 2018LIBERTATEMEDITION 39MAGAZINEwww.libertatemmagazine.comCover StoryThe Great Indian BankHeists & Fugitive EconomicOffender’s Bill, 2018Featured StoryIRDA Directed to Re-lookat “Discriminatory”Exclusionary Clauses inInsurance Contracts

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 39 - April 15, 2018 Masthead Editor In Chief Ankita Ranawat Pubishing Editor Rahul Ranjan VP - Editorial Operations Ritisha Mukherjee (Institute of Law, Nirma University) Advisory Editors Prof. Dr. Howard Williamson (Univ. of South Wales) Prof. Dr. Ahmad Ghouri (Univ. of Sussex) Dr. A. Lakshminath (Chanakya National Law Univ.) Prof. T. Sathyamurthy (National Law School of India Univ.) Dr. Borbala Fellegi (Consultant, Social Policy, Hungary) Dr. Dabiru Patnaik (Jindal Global Law School) Shhaurya Sah (Associate, Inttl Advocare) Fr. Peter Ladis (Chanakya National Law Univ.) Editorial Associate Nada Faruqi (Aligarh Muslim University) Senior Editors Smriti Brar Swarnabh Dutta Madhav Kumar (LLM, University of Hong Kong) Associate Editors Rubel Bareja (Institute of Law, Nirma University) Rohit Yodha (Institute of Law, Nirma University) Devina Das (Symbiosis Law School, Pune) Apurv Taran Jain (National Law University, Odisha) Arushi Sheti (Amity Law School, Delhi) Mohd. Azeemullah (University of Al-Asmariya, Libya) Saloni Sharma (Institute of Law, Nirma University) Muskan Yadav (Institute of Law, Nirma University) Content Developers Khushbu Shah (Maharastra National Law University) Vaishakhi Mudanna (Damodaram Sanjivayya National Law University) Vaibhav Sharma (Rajiv Gandhi National University of Law) Nitya Jain (Instiitute of Law, Nirma University) Shreyan Acharya (Vivekananda Institute of Professional Studies) Shresth Vardhan (Institute of Law, Nirma University) Debajyoti Saha (School of Law, Christ University) Mohammad Azeemullah (University of Al-Asmariya, Libya) Chahat Mangtani (Institute of Law, Nirma University) Shashwat Tiwari (Institute of Law, Nirma University) VP - The Courtroom Swarnalee Haldar (Advocate) The Courtroom Reporters Farhaan S. Haque (National Law University, Odisha) Shweta Subudhi (Midnapore law college, Vidyasagar University) Desktop Publishing Design Ankita Ranawat & Rahul Ranjan © All Rights Reserved by Libertatem Media Group [2018]

Contents Contents of Edition 30 April 2018 Volume 4 Number 4 Edition 39Cover StoryThe Great Indian Bank Heists & Fugitive Economic Offender’s Bill, 2018 (p.4)Featured Story 04IRDA Directed to Take a Re-look at “Discriminatory” Ex-clusionary Clauses in Insurance Contracts (p.6)Legal News StoriesThe Sun and its Nations (p.8)I See a Syria Emerging – Brewing of a Battle between Dalit and the Government (p.10)An Insight into the Company Amendment Act, 2017(p.12) 08The CourtroomSupreme Court Cases (p.16)High Court and District Court Cases (p.29)22 25 3528 © All Rights Reserved by Libertatem Media Group [2018] Disclaimer - The opinion expressed in each article is the opinion of its author and does not necessarily reflect the opinion of Libertatem Media Group. Therefore, Libertatem Magazine carries no responsibility for the opinion expressed thereon.

Libertatem Magazine - Edition 39The Great Indian BankHeists & Fugitive EconomicOffender’s Bill, 2018 By Shristi Banerjee The Nirav Modi scam The nation was shaken after a case of $1.77 billion was detected. It was a case of a fraudulent letter of under- takings issued by Punjab National bank employees instructing SWIFT payment from overseas bank branches without being detected in the system. The line of credit allegedly taken to pay import bills was often not used for such purpose. Having conveniently pulled off nothing short of a robbery, Nirav Modi, his wife Ami Modi, brother Nishal Modi, and uncle Mehul Chinubai Choksi are out of India. Minister for State for External Affairs, M. J. Akbar presented a list of 31 financial offenders who have escaped Indian soil to the Lok Sabha. Beside the above names, the list includes top magnates like Vijay Mallya, Surendra Singh, Angad Singh, Harsahib Singh, Pushpesh Kumar Vaidya, Ashish Jobanputra, Harleen Kaur, Sunny Kalra, Nilesh Parikh, Umesh Parikh, Jatin Mehta, Lalit Modi, Varsha Kalra, Hemant Gandhi, Aarti Kalra, Sanjay Kalra, Deepak Talwar. The requests for their extradition for interrogation by the Central Bureau Of Investigation is being sent to the foreign ministries of the countries where these people have evaded.Page 4

Cover StoryThe proposed BillHaving looked at the sheer enormity of people connected with financial frauds running away to other terri-tories is cause for concern. India has had a love-hate relationship with extraditions. The offences have taken ahuge hit on the financial stability of the economy. The performances of secondary issue markets have sufferedgrave damage due to shaken investor confidence. Small businesses, start-ups, and medium-scale businessesmay be hampered as banks are now in the process of turning stern in their needs for collateral security forlending business credit. In view of this action, the Union Cabinet has cleared the hitherto tabled Fugitive Eco-nomic Offender’s Bill, 2018. Finance Minister Arun Jaitley stated that a mockery of law cannot be allowed, andthey have a responsible Parliament. It approves the establishment of a watchdog, which is the National Finan-cial Reporting Authority (NFRA). The NFRA, as per Mr Jaitley ‘s statements, is a follow-up exercise from theclaims about a similar kind of body made during the announcement of the Union Budget 2017-18.He also addressed a press conference stating that NFRA will act independently, regulating the auditing profes-sion as per the key change brought in by the Companies Act 2013. Section 132 of the Act for chartered accoun-tants and their firms would include large unlisted companies among listed companies. The limits to this wouldbe listed in the rules.Key Features• It will deal with only large cases of economic frauds in which amounts of Rs 100 crore or more is involved.• Under the new Act, bodies will be given the authority to confiscate assets in India. There will be a proce- dure for confiscation of assets outside India, with cooperation from respective country. Benami assets will also be seized.• There is a provision for the establishment of a special court under the Prevention of Money Laundering Act 2002, that will declare a person as a Fugitive Economic Offender(FEO).• To avoid congestion of cases, crime proceeds would be fixed collectively at more than Rs 100 crore at the first instance. The court can declare an accused a fugitive offender if they fail to appear before it despite a warrant. The onus is on the authorities to prove that a person is an FEO.• The Court can declare an accused person a fugitive offender by using the powers given to it under the Act. This can be done if they don’t respond to Government within six weeks. A fugitive offender will be an accused who has avoided criminal prosecution, not appeared before a court and who has left India despite summons issued in their names.• The NFRA shall constitute of a chairperson and authorized members.• The Institute of Chartered Accountants will handle the small cases of financial frauds, while the bigger ones will be transferred to NFRA.• Under the proposed bill, FEOs are debarred from pursuing civil claims at the discretion of any court, including High Court. If prior to such declaration, the offender comes back and submits to the appropriate jurisdictional court, proceedings under this Act will cease by Law.• NFRA, once created can impose a penalty of up to five times the fee that is charged, in a case of profession- al or other misconduct by individual chartered accountants and up to ten times the fees received by audit firms. It can debar an auditor for up to 10 years.The ImpactThe bill is yet to get a nod from the Law Ministry but will be listed in the budgetary session of the Parliament.The Government is on a clean-up, striking out shell companies, revising corporate governance, listing errantcompanies and disqualifying directors. The Nirav Modi scam has been a wake-up call for a rotten auditingand banking system. The new bill, coming as a glimmer of hope, strongly relies on the fear of forfeiture ofproperty. This fear can be strong as procedural methods lead to dropping of prices and lesser market demandfor such property. But it is to be seen whether economic absconders would be afraid of losing their amassedwealth. Before the liberalization of the economy, we witnessed draconian measures relating to business, at-tachment of property, smuggling and trade rules. It has been seen that they do not have the desired effect. TheGovernment feels that the existing laws, namely, Securitisation and Reconstruction of Financial Assets andEnforcement of Security Interest Act (SARFESI), 2002, Recovery of Debts Due to Banks and Financial Institu-tions Act (RDDBFI), and Insolvency and Bankruptcy Code (IBC) have not been enough. Only the future willtell if there will be any more huge scams unearthed after the bill is cleared, and whether it will prove to be adeterrent and faith be restored in financial statements and audit accounts. Page 5

Libertatem Magazine - Edition 39IRDA Directed to Take a Re-look at “Discriminatory”Exclusionary Clauses inInsurance Contracts By Anooj Srivastava In its judgment delivered last month, in the matter of M/S United India Insurance Company Limited versus Jai Parkash Tayal, the Delhi High Court held that the exclusionary clause of genetic disorders in the insurance policy is “too broad, ambiguous and discriminatory, and hence in violation of Article 14 of the Constitution of India.” The Insurance Regulatory and Development Authority of India was directed by the High Court of Delhi to scrutinize the exclusionary clauses in insurance contracts regarding genetic disorders and also to make certain to ensure that insurance companies do not reject the claims on the basis of these exclusionary clauses. In its 47-page judgment, the High Court said, “The exclusion of genetic disorders in all forms would be contrary to public policy. Several of the prevalent medical conditions which affect a large mass of the population, includ- ing cardiac conditions, high blood pressure, diabetes in all forms, could be classified as genetic disorders.” Facts in Brief The judgment was delivered by the High Court of Delhi in an insurance claim by Jai Prakash Tayal against United India Insurance Company. The petitioner was suffering from Hypertrophic Obstructive Cardiomyop- athy, a condition characterised by abnormal thickening of the muscular tissue of the heart. He was denied his claim by the insurance company which reasoned that the particular condition was genetic and genetic disor- ders fell under the exclusionary clauses and therefore his claim was not payable as per the policy.Page 6

Featured StoryAggrieved, the petitioner moved to the Trial Court. The Trial Court ruled in the favour of the Mr Tayal, holding,“there cannot be a discriminatory clause against persons who suffered from genetic disorders and they wereentitled to medical insurance.” In August 2017, the insurance company appealed against the order of the trialcourt in the High Court of Delhi.The decision of the Delhi High CourtOn 26th February 2018, the High Court delivered its verdict, upholding the view of the Trial Court. The Courtwhile looking into the science of genetic disorders and status of similar claims in other countries said that“There are several medical conditions which could be partially attributable to genetics, but could also be attrib-utable to several other factors, such as lifestyle, environmental conditions, dietary habits, etc. Detailed genetictesting is required in order to determine the nature of the genetic disorder, in the absence of which, it would bemedically impossible to determine whether a broad medical condition is a purely genetic disorder i.e., solelyattributable to a gene or to the several other factors which could contribute.”Further Justice Pratibha Maninder Singh opined that if every insurance company starts rejecting claims of theinsured on such extensive and wide exclusions, then a massive part of the country’s population will not be ableto claim insurance, which is certainly not beneficial for the people. To quote, Justice Pratibha Singh said that,“Discrimination in health insurance against individuals based on their genetic disposition or genetic heritage, inthe absence of appropriate genetic testing and laying down of intelligible differentia, is unconstitutional.” Theinsurance companies are free to structure their contracts but the policy’s terms and conditions should not bearbitrary.The IRDAI CircularIn pursuance of the directions rendered by the High Court in its judgment, the Insurance Regulatory and De-velopment Authority of India (IRDAI) issued a circular on 19th March 2018. The circular affirmed that generaland health Insurance companies cannot reject any claim based on genetic disorders. It stated, “In pursuance tothe directions of Hon’ble High Court all insurance companies offering contracts of Health lnsurance are herebydirected that no claim in respect of any existing health insurance policy shall be rejected based on exclusionsrelated to ‘Genetic Disorder’.”It further stated that, “All insurance companies are directed not to include, Genetic Disorders as one of theexclusions in new health insurance policies issued in respect of all their existing health insurance products andalso in the new products launched and/or filed under the provisions of Guidelines on product Filing in HealthInsurance Business”.Impact of the VerdictThe verdict rendered by the High Court will certainly have a large and lasting impression on insurance poli-cies in the country. Few of the major impacts are: The insurance companies shall not be able to contest existinghealth claims (pending in consumer litigation) specifically being defended on the ground of genetic disorder asan exclusion in policy wordings. Further, no claim of health shall be repudiated on the ground of genetic disor-der. There might be instances where insurers may receive consumer complaints wherein claim is solely repudi-ated on the ground of exclusion of genetic disorder. (Provided complaint is within limits as per section 24A ofConsumer Protection Act 1986). As per the above excerpt is taken from the circular, all policies shall not excludegenetic disorders in the exclusion clause.ConclusionThe judgment of the court has brought a change in the way the insurance companies frame their exclusionaryclauses. The implications of the directions and the claims which will be arising in the future may lead to a na-tional debate. Many insurance companies may show reluctance in complying with the directions or they comeup with other ambiguous terms in their policies. The judgment aims to protect the interests of the insured orpolicyholders and surely promotes the public interest. Genetic disorders, included in exclusionary clauses, wereso usual and ordinary that a huge part of the country’s population suffered from such disorders and if everysuch claim was refused by insurance companies, it would surely have had a negative impact on the health andinterest of the people of the country. Page 7

Libertatem Magazine - Edition 39NThaetiSonusn and itsBy Shristi Banerjee The International Solar Alliance (Isa) - India’s Global Initiative On The Harnessing Of Sustainable Energy It was launched by Indian Prime Minister Narendra Modi and President of France on November 30th, 2015, in Paris, at the United Nations Climate Conference. It was also presented at the India Africa summit in New Delhi and at Narendra Modi’s speech at London’s Wembley stadium in the year 2015. The ISA has its’ headquarters in India. The secretariat is located at National Institute of Solar Energy, Gurga- on, in Haryana. It is aimed at tapping solar energy that concentrates in countries where Tropic of Cancer and Tropic of Capricorn is present completely or partially. It is the first of its’ kind treaty-based intergovernmental organization that came into force in December 2017. Mission It shall globally deploy 1000GW of solar energy generation capacity and usage of investments of over US $1000 billion into solar energy resources by 2030. It aims at bringing the countries blessed with these resources to- gether, so as to deflate prices through bulk purchase, facilitate existing solar technology and aggregate world demand. During the conference, the International Energy Agency signed a Joint Partnership Declaration with ISA. Asian Infrastructure Bank, Green Climate Fund, New Development Bank and Asian Development Bank were among the ones to sign declarations with ISA. Earlier ISA has had partnerships with World Bank, Europe- an Investment Bank and European Bank for Reconstruction and Development.Page 8

News StoryLegal frameworkIndia and France are strengthening their ties, through diplomatic efforts of building the legal Skeleton of ISA.Many more nations those were not inducted as members have expressed their interest in joining the alliance.The first Director-General of ISA Mr Upendra Tripathy has confirmed that the respective countries may join asa partner country but whether or not they will have Voting rights is yet to be considered.This will allow countries like Pakistan who do not fall in the region of tropics, to come on board. Germany,South Korea, Mongolia, and Nepal have approached for membership of ISA with voting rights. This is to bedecided by the steering committee jointly headed by India and France.The Ministry of New and Renewable Energy had previously issued a statement that on December 6, 2017, the ISAhad become a treaty-based international intergovernmental organization. This came after a framework ratificationfrom Guinea as the 15th country.Indian rootsIn a statement from Prime Minister Shri Narendra Modi, stating India-France cooperation ranges from the ground tothe sky, French President hailed efforts of India. So far, 62 member nations on March 11th, 2018 have committed todo their part to increase solar power share in the different energy resources. The Delhi Solar Agenda was launchedin this funding summit. 32 nations have ratified including Bangladesh, Peru, and Australia. This is a brainchild forbeneficial partnerships for tackling clean energy and environment-friendly technology. India has also pledged to setup a project preparation facility for viable projects. This is to be selected from a list of consultancy firms prepared byExim Bank of India. In his inaugural address, Prime Minister Shri Narendra Modi mentioned 27 proposed projectswhich comprise of a total funding of $1.4 billion. As of now, 13 projects are being funded by a line of credit provid-ed by India. There is an international team of experts working on the blueprint mechanism of ISA and a CommonRisk Mitigating Mechanism was also rolled out. This is to protect investor’s interests so that more investment can beattracted. The objective is to try to limit climate change by restricting global warming levels below 2 degree Celsiusabove pre-industrial levels. The countries in the treaty have optimal sunlight absorption and sunlight for almost 300days of a year.Road AheadAs per plans for remote and poor areas, there shall be off-grid solar applications. Work shall be in progress to facil-itate awareness and skill enhancement. Development and research by partner nations shall look towards cost-effec-tive solutions, business models, equipment and technological advancements.President Emmanuel Macron pledged over $860 million for solar projects, with already $ 369 million invested in,when the initiative was cofounded. The French Development Agency shall also allocate $860 million by 2022 to thecause. He lauded India’s efforts of successfully achieving the target of generating 20GW of solar energy by 2022,four years before its target. India’s solar energy capacity has increased by 140%. The French President tweeted aboutDelhi, being the world capital of the sun, this weekend.The Indian Prime Minister cited the example of solar lamps distributed to school children under the ‘’Atal Jyoti Yo-jna’’. He announced 500 training slots yearly for member states in ISA. India has contributed $62 million for the ISAcorpus fund for running the secretariat in India for the next five years.The world capital of SunWith the United States of America pulling out of the Paris Agreement, India seems to be advancing towards a strate-gic leadership in the climatic conservation arena. Earlier China had manoeuvred ahead with its clean energy projectsbut with ISA, India seems to have picked up the pace. The Prime Minister this weekend invoked the Vedas in hisstatements. Stating the sun as the soul of the world and a nurturer of life, he urged people to look at this directionfor developments. The Prime Minister’s Office tweeted about the performance of Solar Mamas on the song ‘’we shallOvercome’’ and its Hindi version “Hum Honge Kamyaab”. The solar Mamas are a group of African women trainedunder Indian support programs in Ajmer, to tackle solar energy. With a show of support and goodwill, the ISA hasmarked the start of its revolution around the Sun. It is now to be seen, where it leads India in its diplomatic andclimate leadership endeavours. Page 9

Libertatem Magazine - Edition 39I–bGSeoBtevrweeeerwaneimnSngyeDrnoiaatfliEat maBneadrtgttliheneg By Shresth Vardhan Amidst the Green Revolution in 1980s, a significant number of Dalits had skipped hunger, first ever in past many millenniums. Equity likewise stayed aloof from majority of the population and they had to snag virtual- ly at each phase. Yet, the most visible of all and by far stirring remonstrations throughout the nation was seen on 02 April, 2018, when Dalits turned out to challenge the Supreme Courts judgement, alleging dilution of the Scheduled Castes and Tribes (Prevention of Atrocities) Act. This is a leaping step in India’s slithering footslog from congeries of famous and credited personalities, each fastened by religious opinions and conventions to its own particular tread of feebleness in a complex and rigid social hierarchy. In spite of the fact that the bandh was meant to be a routine political movement, it snowballed into a fierce visual. Expansive scale of dissents by Dalits occurred in different areas. Conflicts with the police broke out and savagery cleared the dissents. The BJP government however supported its position on the present disaster, guaranteeing their vision to be enduring. In the midst of uproarious dissents and joining the choir against the Supreme Court’s decision, the Centre filed a review petition in the Supreme Court on Monday demanding a review of the judgment. The government, has sought reimposition of the SC/ST Act as the decision abuses Article 21 of the Constitution for the SCs/STs. “Innocent citizens are termed accused, which is not intended by the legislature. The legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance.”Page 10

News StoryTo heal this, the legislature enacted the Untouchability (Offences) Act, 1955 or as we now know it as the Protec-tion of Civil Rights Act, 1955. The Act was insufficient to fill this void in the law by bringing in the Preventionof Atrocities Act in 1989. This is essentially in light of the fact that the praiseworthy question with which theAct had been made is vanquished by the disinterested state of mind of the authorities.A study by the National Law School of India University, Bangalore has put-forth that the law was unclear inthe goals - “whether the Act exists merely to remove specific disabilities symptomatic of untouchability orwhether it makes a concerted effort to strike at the root of the problem. If the stated goal is the eradication ofuntouchability as a social evil... the Act must deal with societal structures that perpetuate oppression. The legis-lation has to ensure a greater role by the State, not limited to the punishment of individuals.”The High Court of Bombay has in 2017 noted that “there has been a failure on the part of the authorities incomplying with the provisions of the Act and Rules.”The duty is cast on all the States and the Union Territories to fully implement and to take action against the vi-olators. Henceforth, persons aggrieved are permitted to approach the authorities concerned at the first instanceand thereafter the High Court having jurisdiction.Even the N.H.R.C. in its report has observed that “even in respect of heinous crimes the police machinery inmany states has been deliberately avoiding the Scheduled Castes and Scheduled Tribes (Prevention of Atroci-ties) Act, 1989. The standing committee of the ministry of social justice and empowerment in 2015 regarded theresponsibility for the low conviction rate to wilful negligence by the officials.Thus, the abundant material on record proves that the concerned authorities are guilty of not being able to andletting enforce the provisions of the Act. The travails of the people continue unabated.It is thus very evident that the law has been not able tackle the issues faced by the SCs/STs.In any case, this judgment is only a trigger. Between the Una and Rohith Vemula’s episode which made na-tionwide scores, there are various explanations behind the outrage among Dalits. Numerous incidents haveenraged them and this is what seemed unimportant to the nation.All of this being said, this was more of an urban protest as the participants engaged were different from theold generation Dalits. This clearly will affect the upcoming elections and have an impact on the politics. How-ever, hijacking Bhimrao Ramji Ambedkar is appalling. However, capturing Bhimrao Ramji Ambedkar won’twork. Such a move isn’t intelligent of any political manoeuvring, but instead indicates incompetence. All of thiswill tag it as ruffianism. If the government believes this to be a true account, they may bamboozle themselves.Smart asses will get this. Others will look back to the glorious shades of the past. Page 11

Libertatem Magazine - Edition 39AACcnotmI,n2ps0aig1nh7ytAimnteontBdyhShmeristieBannerjtee In order to bring the Company Law of India, in line with the global standards, a significant legal reform took place when the Companies Act, 2013 was enacted. Accountability, corporate governance, disclosures, investor production, etc. were some of the significant changes introduced by the act in the Company Law of India. In many areas, the Government faced implementation challenges. Therefore, in order to address these rising concerns, the Ministry of Corporate Affairs constituted a Companies Law Committee. More than 2000 observa- tions were to be dealt by the committee. In spite of the enormity of the issues, the committee was able to pre- pare the report within six months, which was commendable. Many of the suggestions which were advanced by the Committee were taken into consideration by the Govern- ment and subsequently, the Companies (Amendment) Bill, 2016 was introduced in the Lok Sabha, in the month March. After the joint consideration of the suggestions made by the Committee and other related develop- ments, the Bill was re-introduced as, the Companies (Amendment) Bill, 2017, in Lok Sabha. It received Presi- dent’s assent on January 3, 2018, and has been notified in the Official Gazette (the 2017 Amendment Act). The 2017 Amendment Act seeks to resolve the difficulties in Implementation, harmonization with other statutes such as RBI Act, 1934, smoothen business transactions and normalize the inconsistencies of the 2013 Act. List of Key Amendments The key amendments that the act has introduced are as follows [Taxmann Corporate Laws]:Page 12

News Story1. Streamlining of Private Placement of Shares: All the stipulations in relation to private placement have been given a new and improved form. The 2017 Act proposes that Private placement should be only to ‘identified persons’. Further, to each class of identified persons, more than one issue of security can be made.2. Corporate Social Responsibility: As per the 2013 Act, eligibility for performing CSR was determined on the basis of preceding “three Financial Years”. This has been revised under the new Act. Now the deter- mination is to be based on “Preceding Financial Year”. Two or more Directors shall be present in the CSR Committee of the company, which is not required to have an independent director.3. Managerial Remuneration: The provision has been proposed to remove the necessity of obtaining special resolution and Central Govt.’s approval for payment of managerial remuneration in a surplus of the pre- scribed limits.4. Annual Return: The 2017 Bill proposes to abolish the excerpt of annual return forming part of Board’s report and provide disclosure of web address/web-link of the annual return in Board’s report. It also pro- poses to omit requirement regarding disclosure of indebtedness and modify the requirement of disclosure of names, addresses, countries of incorporation, registration, and percentage of shareholding of Foreign Institutional Investors.5. E-Voting: Proviso to section 110 has been inserted which states that there is no requirement of postal ballot, where the company has provided the facility to vote through electronic means.6. Ease of Doing Business: In addition to Directors & Key Managerial Personnel, any employee can also au- thenticate documents & no Central Government approval for payment of remuneration in excess of 11% of net profits is required.7. Maintenance of Registered Office: Under the provisions of 2013 Act, a company was required to maintain its registered office within 15 days of incorporation. But under the new Act, the duration has been extended to 30 days.8. Prohibition of Loan and Guarantee: Section 185 has been completely overwritten under the new Act. The 2017 Act allows the companies to advance securities or loans or guarantees to any person in whom any of the Directors is interested in. This advancement is subject to special resolution and the borrower must uti- lize the loans for its principal business activities.9. Appointment of Auditors: Under the new Act, there is no need of annual ratification with respect to audi- tors’ appointment, by the members, when auditors have been appointed for five years.10. Board Report: The expanse of Board Report has been reduced under the new Act. According to the latest provisions, certain information can be provided on the website of the company and in Board report, only its reference is required. A proviso has been inserted to Section 134(3) which states that if disclosures, as required in Board report, are made in the financial statement, its reference in Board Report is sufficient. Its repetition is not required.11. Higher late fee for large Companies: If the Annual Return and Financial Statement, are not filed within the prescribed time with the Registrar, an additional fee of minimum Rs. 100 is payable per day. This addition- al fee depends upon the classes of the company.12. Partnership Firm into Private Company: Under the 2013 Act a partnership required 7 partners to convert into a company, under the new Act, this restriction has been reduced to two or more partners.Expected Impact of the 2017 Amendment ActThe enactment of the 2017 Act is aimed to address the difficulties in implementation owing to strict compliancenecessities, facilitate ease of doing business in order to promote growth with employment, harmonisation withaccounting standards, the Securities and Exchange Board of India Act, 1992 and the regulations made thereun-der, and the Reserve Bank of India Act, 1934 and the regulations made thereunder and rectify omissions andinconsistencies in the 2013 Act.A Progressive AmendmentOne of the foremost objectives of the Companies Amendment Act 2017 is to promote the ease of doing businessin India. Therefore, in order to reap the benefits of the introduced amendments, it is required by the companiesto take note of the changes made to the 2013 Act and implement them as effectively as possible.As the Act has come into force recently, feedbacks from the corporate sector is yet to be received, but it can besaid from the first view of the amendment that the proposed reform will put the Company Law of India in linewith the global standards. Page 13

the couBy Swarnalee Haldar,Pragati GargShreyan Acharya,Ranjita Banerjee,Farhaan S. Haque &Sweta Subudhi

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Libertatem Magazine - Edition 39High Court Cannot NullifyMarriage Between Two ConsentingAdults: Supreme Court Supreme Court on Thursday ruled that High Court cannot nullify marriage between two consenting adults in the controversial Hadiya case. By pronouncing this decision the court upheld the fundamental rights given to people of India by Indian constitution. Facts A 24-year-old girl Akhila pursuing Bachelor of Homeopathic medicine and surgery from a college in Salem went missing from her friend’s house on 6th January 2017. It was discovered that Akhila attended her college on 6th January wearing Hijab following which her parents lodged a police complain. Akhila’s father filed a writ of Habeas Corpus at Kerala High Court. Akhila was brought before the court on 19th January where she said that she had converted to Islam by her own free will and taken the name Hadiya. She further stated that she converted because she was impressed by her friend’s timely prayers and good character and added that she had been following Islam for three years without announcing the change. From 7th January she had been staying with Sainaba a social worker who worked with an educational and conversion center known as Sathya Sarani in Manjeri, Malappuram. Hearing this court rejected the writ of Habeas Corpus filed by Akhila’s father saying she was staying at the institution of her own free will and there was no illegal confinement. Akhila’s father filed a second petition on 17 August 2016 alleging that her daughter was being taken to another country for marriage with a Muslim man. Court immediately passed an interim order keeping Akhila under surveillance to ensure she stays in the country. On the day of hearing, Akhila tells the court that she did not want to return to her parent’s house. Akhila’s father revealed his concern for her safety following which court sent her to a hostel in Ernakulam. In September Akhila tells the court that she was being made to stay at the hos- tel and she should be allowed to stay in place of her choosing. She does not possess a passport and cannot travel to any foreign country. On 21st December Akhila walks in the court with a stranger who turns out to be her husband. They met through a matrimonial website and married on 19th December. Judges of Kerala High Court were livid with rage and not satisfied with the manner in which marriage was performed and sent Akhila to a ladies hostel with no access to mobile phone. On 24 May Kerala High Court called her wedding a sham and nullified it. Moreover, Court said that wedding could be a conspiracy to take her out of the country. Akhila’s husband appealed to Supreme Court against the order of Kerala High Court. Supreme Court herd the matter on two issues Issues of the Case • Can High Court sou motto nullify a marriage in a habeas corpus petition? • Can a third party approach court in a case of marriage between two consenting adults? Decision Apex Court noted the observation of High Court that there were radical organizations in the country trying to brainwash young Indian girls in. Learned council Kapil Sibal for petitioners maintained that bride and groom had met through a matrimonial website, marriage was valid and there was no element of undue influence or forced consent. Shyam Divan on other side argued that High Court under article 226 has the inherent jurisdiction to annul a marriage where the solemnization of marriage is carried out in the background of poverty or illiteracy of one party.Page 16

The CourtroomAfter listening to both the sides Apex Court held “the High Court should not have annulled the marriage between Sha-fin Jahan and Hadiya alias Akhila Asokan, in a Habeas Corpus petition under Article 226 of the Constitution of India. Wesay so because in the present appeal, by special leave, we had directed the personal presence of Hadiya alias Akhila Ashokanshe appeared before this Court on 27th November 2017, and admitted her marriage with appellant No.1.”Learning of the CaseFrom this case we learn 2 things first, that court cannot annul a marriage between two consenting adults in ahabeas corpus petition. Second, every Indian has the right to choose his or her partner in a marriage.Supreme Court Has Sought TheCenter’s Response On A PleaSeeking A CBI Probe Into The LateJunaid Khan Mob Lynching CaseFacts:On 22.06.2017 Junaid (deceased), his brother Hashim and their co-villagers Mosin and Moin had traveled toDelhi to make purchases for Eid celebrations. All of them boarded the train at about 5:30 at Sadar Bazar stationto return to their village. When the train reached Okhla station a middle-aged person aged about 55 years ad-dressed as ‘Panditji’(Rameshwar Dass of village Khambhi) by others boarded the train. He led a gang of personswho started misbehaving with Junaid and others asking them to vacate the seats“They addressed them as ‘Mullas’ and ‘Katlas’ further stating that the assailants shall feed them beef on that day. Panditjicalled them Pakistani and traitors and told others in the compartment that these four persons were known criminals andterrorists. The ritual caps of Hashim and Moin were removed from their heads in an insulting manner by the mischief mon-gers. The four unfortunate victims desperately wanted to avoid the trouble.”Finding themselves vulnerable, Hashim and Mosin made a phone call to their brothers Shakir and Amir respec-tively, intimating about the emerging situation from the phone of Salman. The four victims could not boarddown at Faridabad. While Salman boarded down at Old Faridabad station. Rameshwar Dass loudly startedmaking a provocative speech against the Muslims in general. He told the passengers who entered from NewTown, Faridabad that these four young Muslims passengers were known criminals and terrorists and some oth-ers proclaimed that Muslims were beef eaters, traitors, and Pakistanis.At Ballabgarh a determined gang of persons blocked the path of Junaid and others making it impossible forthem to board down. However, Moin succeeded in quietly sneaking away and got down in Ballabgarh. How-ever, their telephonic message having been received in their village, three persons namely Shakir (brother ofJunaid), Hashim and Mausin tried to board the train. Only the first two actually boarded the compartment.Junaid, Hasim and Mosim s/o Rehmuddin remained continuously surrounded. A result of careful planning anda conspiracy that they were not allowed to board down at Ballabgarh to safetyThey were abused in the name of mother and sisters jeered at, manhandled, kicked and punched. The newentrants namely Shakir and Mustakin also suffered the same fate when they tried to intervene and pacify thewrongdoers. One person Ramesh and Rameshwar Dass openly exhorted Naresh to kill the traitors. As a re-sult, Naresh opened an attack with a knife. Firstly, he attacked Shakir on his neck, chest, and hand, then hegave many stabs blows to Junaid, the deceased and thereafter he switched his attack towards Hashim who wascaused two stab blows.A case was registered on the statement attributed to Hashim which is purported to have been recorded on Page 17

Libertatem Magazine - Edition 39 23.06.2017 at 2:30 AM by Suratpal, ASI, GRP Ballabgarh. It is the grievance of the Petitioner that the statement of all the witnesses has been deliberately distorted to introduce ambiguity, discrepancies, and contradictions with the calculated interest of benefiting the accused. The acts committed by various accused were individual in nature except for minor offenses like wrongful restraint (section 341 IPC), simple hurt (section 323 IPC) and uttering, words, etc., with deliberate intent to wound the religious feelings of any person (Section 298 IPC). Sections with regard to major offenses under Section 302 and 307 IPC have been attributed to only accused Naresh Kumar. The question of Law: Whether the Hon’ble High Court ought to have taken a strict view towards the lapses on the part of function- aries of Respondent No 1 in conforming to the highest standards of objectivity, competence an, probity in the manner of discharge of their statutory functions of investigation? Whether the Hon’ble High Court failed to consider that the larger public interest would be better served if the investigation of the case shall be carried out by an independent agency such as Respondent No 4 i.e. Central Bureau of Investigation to instil the confidence in the people in general and the aggrieved section in particu- lar? Whether the Hon’ble High Court should have considered the well-founded grouse and grievance of the Pe- titioner that investigation conducted by Respondent No 2 and 3 was neither professional nor comprehensive and fair? Whether the Hon’ble High Court ought to have acknowledged the nation-wide ramifications of the said case, as a cogent reason to direct the transfer of investigation to Respondent No 4? Notice: A Bench, led by Justice Kurian Joseph, issued a notice to the CBI and the Haryana government on Mr. Jalal- luddin’s petition, which alleged a concerted attempt to cover up the true nature of the crime committed against his minor son. A bench of justices also stayed the trial in the case till further orders. The court’s decision came after the Pun- jab and Haryana High Court dismissed the appeal against the single-bench judgment that had rejected the father’s plea for a CBI probe in the case. The division bench had dismissed the plea on the question of main- tainability and the family was then given two week’s time to approach the Supreme Court. Learning outcome: The Court has agreed to examine his father’s plea seeking a CBI probe into the incident. The incident could have occurred with anyone. A 16-year old, his body soaked in blood, his head cradled in his brother’s lap, died on a railway platform. The haunting image is splashed across news websites. Before he ended there he was beaten and thrashed and stabbed by a mob that materialized out of a seemingly normal crowd of com- muters in a railway compartment. The altercation, reportedly, was about seats. India has always abided by the Preamble of the Constitution and being a secular country a person shall not be mocked around due to his religion. Being a Muslim is no crime; it is a belief and shall be given respect it deserves.Page 18

The CourtroomSupreme Court fixes Fees forFilling and reproducingDocuments under RTIA Petition was filed in the year 2012 by an NGO Common Cause which attracted the judicial attention towardsthe imposition of excessive fee from general public seeking information under RTI. The petition had challengedthe Allahabad High Court (RTI) Rules, 2006, on the ground that they were obstructive and were not in conso-nance with the spirit of the Right to Information Act, 2005 (RTI Act). The petition contended that Rules 3, 4, 5,20, 25, 26 and 27 of the Allahabad High Court (RTI) Rules, are in clear violation of the different provisions ofthe RTI Act and also violates Article 19(1) (a) of the Constitution.Arguments:During the initial hearing, Advocate Prashant Bhushan had referred to the specific provisions of the Act todemonstrate that the provisions of the aforesaid Rules are in violation of the provisions of the Act. It was hisargument that Rule 4, which prescribes charging an exorbitant fee of Rs. 500 per application, has an effect ofabridging the right to information and thus subverts the very object of the Act.“There can be no doubt that such a high fee is unwarranted and cannot be considered to be reasonable.”He contended that the application fee of Rs.500 as prescribed in the Rules is more than fifty times the fee pre-scribed by the Central Government. It was further contended by him that Rule 3 which prescribes that “everyapplication shall be made for one particular item of information” is also ultra vires the RTI Act as there is nosuch restriction in the Act. He also referred to an order passed by the Central Information Commission whichhad held that such stringent restrictive conditions, including such high level of fees, would surely deter citi-zens from freely seeking information from the HC which was not in conformity with the spirit of RTI Act.The Allahabad High Court submitted that it was going to consider amending the Rules so as to bring it inconsonance with the provisions of the Act. Subsequently, the High Court brought in some amendments andprescribed Rs.250 as application fees.Order:The Court has directed that RTI fees would be limited to Rs.50 per application and also fixed the upper limit ofRs.5 for photocopying documents required to obtain the information.Applicability:The order shall be applicable to all institutions, including high courts, legislative assemblies and other govern-ment and autonomous bodies that come within the ambit of the Right to Information (RTI) ActLearning outcome:On 15 June 2005, The Right To Information Act, 2005 was enacted to provide for setting out the practical re-gime of right to information for citizens to secure access to information under the control of public authorities,in order to promote transparency and accountability in the working of every public authority, the constitutionof a Central Information Commission and State Information Commissions and for matters connected therewithor incidental thereto. Be it 2G Scam, Commonwealth Games- Diversion of Dalit Funds or Indian Red Cross So-ciety Scam; have come into the picture through RTI Applications filed by various activists. Since the time thisAct was enforced, it has brought a feeling of fear in minds of corrupt man and is building a rock-solid connec-tion between government and society which is the foremost objective of a democratic country. It is expedient toprovide for furnishing certain information to citizens who desire to have it. Page 19

Libertatem Magazine - Edition 39Supreme Court says Pensioncannot be linked to Aadhaar Facts The Supreme Court on March 21 raised an important question on the mandatory linking of Aadhaar card for drawing pension by retired government employees. The top court has rightly observed that pension is “not a sub- sidy but an entitlement of a person for years of service he/she has rendered to the government in the discharge of official duties“. Bench The five-judge bench comprising CJI Dipak Misra justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan is hearing a bunch of petitions challenging the constitutional validity of Aadhaar Act on the premise of the citizen’s fundamental right to privacy. The pension is an entitlement under the respective central or states civil and defense service rules (as applicable) and not a benefit under any of the social schemes. There- fore, there seems to be no basis for its inclusion under Section 7 of the Aadhaar Act, 2016. There are some practical problems which must be taken into consideration. Whether one wants to admit it or not, due to the fast-crumbling joint family system, a majority of the pensioners are leading independent and lonely lives for decades now. Then, there are many more cases where their children have relocated to distant cities away from them within India and even overseas in search of gainful vocations. It would definitely amount to undue stress and pressure on such pensioners if they are deprived of their pension because of Aadhaar card. That would not just be unfair but criminal. The situation for women drawing widow pension and other dependent beneficiaries of such pensions is even worse. Senior citizens suddenly asked to prove their identity for the pension through an Aadhaar card may really be at a loss if for years they had led a dignified life without such an identity. And all this when all retired central or state government pensioners have the pension payment booklets or service books – as applicable from state to state duly certifying all of their personal details, including the pictures of both the spouses (in case married) and even those of any legally accepted dependent member of the pensioner. It is also a known fact that the biometrics do undergo a change with advancing years, and in many cases, finger- prints may no longer remain readable or match perfectly. The SC has, therefore, rightly suggested that the government needs to come out with less invasive ways of con- firming the identity of a person. The bench has rightly raised the issue of retired persons settled abroad, high- lighting that as per rules, only Indians can enroll for Aadhaar or else only if they spend a minimum stipulated period of continuous stay back in India in a year. This calls for ensuring that any non-resident Indian can also get his/her pensionary dues as they are debarred from applying for Aadhaar. The central government alone has nearly 55 lakh pensioners enjoying this entitlement and the numbers in all states put together are much larger. It may be recalled here that the apex court has already ruled twice in October and December 2015 that citizens cannot be forced to produce their Aadhaar to avail government’s welfare schemes and benefits. Though the change and switch over to Aadhaar as a single source of identity seems good in the longer run, considering the multiplicity of various benefit-specific IDs created from time to time covering our huge population, it has to be prudently paced to match its success with good governance. The SC rightly questioned the central government “if Aadhaar was an instrument of establishing the identity of a person, then what was the need for storing data in a centralized repository and linking the unique identification with everything“. “Why you want to store data when you want the identity of a person to be established in Singapore, everyone has a unique identification card and all information is stored in a chip card and is not with the state,” said justice AK SikriPage 20

The CourtroomJudgmentThe top court said that the govt.should come with less invasive ways of confirming the identity of the person. SCsaid linking Aadhaar with the pension should not be mandatory. The bench raised the issue of retired personssettled abroad, pointing out that as per rules, only Indians can enroll for Aadhaar. In this case govt. must ensurethat non-resident Indians can also get the pensionary benefits as they cannot apply for Aadhaar.Supreme Court: No stay on trialfor more than 6 monthsFactsIn a bid to ensure speedy justice and discourage delaying tactics adopted by accused in procuring a lengthy stayon trial, particularly in corruption and criminal cases, the Supreme Court ruled on Wednesday that a stay onproceedings must not exceed six months.The Court ProceedingsThe SC ruled that lower courts could proceed after a six-month period, preventing accused of dragging on thetrial. The order should reduce the probability of the maxim “justice delayed is justice denied” becoming thenorm and aiding the accused in avoiding just desserts in a court of law. Prolonged trials can result in witnessesturning hostile or even dying and evidence being diluted — developments that frustrate victims and law en-forcement agencies.BenchA bench of Justices Adarsh K Goel, R F Nariman, and Navin Sinha said it was in the interest of society to ensurethat cases under the Prevention of Corruption Act are tried expeditiously as the cancer of corruption has eateninto vital organs of the state.“It is well accepted that delay in a criminal trial, particularly in the PC Act cases, has a deleterious effect on the administra-tion of justice in which the society has a vital interest. Delay in trial affects the faith in rule of law and efficacy of the legalsystem. It affects social welfare and development. Even in civil or tax cases, it has been laid down that power to grant stayhas to be exercised with restraint. A mere prima facie case is not enough. The party seeking the stay must be put in termsand the stay should not be incentive to delay. The order granting a stay must show an application of mind. The power togrant a stay is coupled with accountability,” the bench said.It said the wisdom of legislature and the object of final and expeditious disposal of a criminal proceeding can-not be ignored by courts. Higher courts, while passing orders on the stay of trial, have to balance freedom of anindividual on the one hand and security of society on the other.“Only in case of patent illegality or want of jurisdiction, the high court may exercise its jurisdiction. The acknowledgedexperience is that where the challenge to an order framing charge is entertained, the matter remains pending for a long timewhich defeats the interest of justice,” it said.“In an attempt to remedy this situation, we consider it appropriate to direct that in all pending cases where stay againstproceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unlessin an exceptional case, by a speaking order, such stay is extended,” the court said.The apex court said that in cases where a stay is granted in future, the same will end on the expiry of six monthsfrom the date of such an order unless a similar extension is granted by a speaking order. “The speaking order mustshow that the case was of such exceptional nature that continuing the stay was more important than having the trial final-ized,” the court said. Page 21

Libertatem Magazine - Edition 39 Judgment The court passed the order while deciding whether an HC can stay trial proceedings on a petition filed by an ac- cused at the stage of framing of charges under the PC Act. It said the HC has jurisdiction to consider the challenge against an order framing charges and also to grant a stay. A petition challenging framing of charges should be decided in 2-3 months if it is accepted. “If a stay is granted, it should not normally be unconditional or of indefinite duration.”Supreme Court’s concern islimited to Protection ofMahakaleshwar’s “Lingam” A bench of Justices Arun Mishra and U U Lalit observed that it would not go into the issue of what religious rituals should be followed and how worship should be performed there. It was for the temple management and the concerned stakeholders to discuss and decide. Also, Supreme Court’s concern is limited to Protection of Ma- hakaleshwar’s “Lingam” Facts The apex court has been dealing with the issue of protecting the ‘lingam’. It had earlier taken strong exception over some display boards set up at the temple which had attributed new worshipping norms as directions of the top court. It had said the court had never given any direction to implement the new norms of worship, which were actually submitted by Mahakaleshwar Mandir Management Committee in consultation with an expert com- mittee set up by the court. It had directed the temple management committee to immediately remove these display boards and even asked the media to report the issue with caution. As per the new norms, the devotees were permitted a fixed amount of water measuring 500 ml in an appropriate small pot per person for ‘Jalabhishek’ (worshipping by offering water). Order The Bench gave the order that “We are only concerned about the ‘lingam’. And reserved it order on the issue of protection of the deteriorating condition of the ‘Jyotirlingam’, a phallus symbolising Shiva. “We are not here to order how puja should be performed. It is not our job to order methods of religious ceremonies. It is for the temple management and other stakeholders to discuss and decide among themselves what should be done and what should not. We are concerned only about the lingam which has been deteriorating,” observed a bench headed by justice arun mishra. Justice Mishra added that the Court does not have to issue directions, say, how to conduct the bhasma aarti, as to what rituals can, or what rituals cannot be, performed. Justice Mishra further observed that the apex court was not at all bothered about the fight between the pujaris and pandas in the temple. The bench asked all parties, including the temple management and state government, to submit their suggestions on how to protect the lingam. It reserved its judgment on this point. The Court also criticized the order passed by a single bench in the Madhya Pradesh High Court whereby several bylaws had been tinkered with and a string of directions had been issued to the management of the temple.Page 22

The Courtroom“How did a single bench entertain a PIL? Only a division bench can hear a PIL in MP High Court. And then the singlebench granted you reliefs that you did not even ask for. How could this be done? It was completely improper. The divisionbench rightly set it aside,” the bench told the lawyer appearing for the petitioner in the apex court.It also pointed out that the petitioner was the wife of a pujari and that there could be some personal interestsinvolved.“You have not come to the Court with clean hands. We don’t want to comment any further. We will confine ourselves onlyto the protection of the lingam in the interest of the worshippers,” said the Court while reserving its judgment.The committee was also directed to study other structures and the temple and submit recommendations onsteps for overall improvement of entire premises and its preservation.Supreme Court ruled againstinterfering in West BengalPanchayat electionsThe Supreme Court has refused to grant the plea of the West Bengal unit of Bharatiya Janata Party (BJP) wingtoday and chose not to interfere with the West Bengal Panchayat elections.Facts of the caseThe West Bengal BJP wing had approached the Apex Court on Monday, 9th April to stop the ruling TrinamoolCongress Party’s (TMC) violence in the upcoming Panchayat elections. The petitioner represented by senior ad-vocate Mukul Rohatgi stated that West Bengal had turned into “a troubled state” where the ruling party cadresare responsible for “murdering the democracy.”The BJP wing of West Bengal in their plea alleged that their workers were being targeted by TMC personnel inKatwa and Kalna regions of West Bengal. The party leaders were harassed by the Block Development Officers(BDOs) who have been selected by State Election Commission (SEC) as Assistant Panchayat Electoral Registra-tion Officers. The BJP candidates nominations were being rejected by such Registration Officers.The petitioner sought the interference of the Supreme Court in this matter because of the ongoing strike in theHigh Court since February 19. They urged the Apex Court to direct the ruling party in West Bengal to arrangefor a fair election in the Panchayat. They also wanted the privilege to file online nominations and to extend thedate of filing nominations, the last date being April 9.Court rulingAll the allegations of the West Bengal unit of BJP in their plea were refuted by the West Bengal governmentrepresented by senior counsel A M Singhvi who categorically denied any wrongdoing by the TMC. He furtherstated that the BJP is falsifying accounts in order to create trouble as the party has “no presence in West Bengal.”He alleged that the BJP party in West Bengal has failed to garner any support and hence they are fomentingtrouble in last bit of attempt in trying to catch the Centre’s attention. He presented in the Court the nominationsthat were already filed by the BJP candidates. He denied the presence of any violence in the State and policeinactions or brutalities. He assured the Apex Court that the West Bengal government will ensure a free and fairelection in the Panchayat in the upcoming polls of the next month.A division bench of the Supreme Court comprising of Justices R K Agrawal and A M Sapre heard the case and Page 23

Libertatem Magazine - Edition 39 delivered their verdict today. The Court refused any kind of interference in the upcoming Panchayat elections in West Bengal and advised the BJP party to approach the SEC as a measure to redress their grievances. The Court also refused to grant the plea of sending CRPF personnel in a bid to ensure free and fair elections. The Court seemed satisfied with the measures already implemented by the ruling party and thus ruled in favour of the TMC. The BJP acknowledged that the verdict is a massive blow for them and BJP state president Dilip Ghosh showed his disappointment when he stated, “there was a premonition that our plea would be turned down. If the SC had overruled it, we will abide by the decisions.” TMC MP and lawyer Kalyan Banerjee, on the other hand, was happy with the Apex Court’s verdict and mentioned, “it means that the West Bengal government have been doing its work good enough.” After this verdict of the Supreme Court now everyone’s attention will be focussed on the upcoming Panchayat elections of West Bengal to be held in three phases on May 1, 3, and 5 and the votes are to be counted on May 8. Supreme Court Calls a Man “Un- reasonable” for treating his Wife as a Chattel, rules Husband can’t force her to live with him In this particular case, a woman lodged a criminal case against her husband alleging cruelty. She said that she does not want to live with him while the man maintained that he wants to reside with her. The court had ear- lier referred the matter for mediation observing that both of them were educated and they would be inclined to settle their matrimonial dispute rather than going for litigation which may prolong their agony. It had told both the man and the woman to fully cooperate with the mediation proceedings keeping their interest in mind and the fact that it might not be advisable for them to litigate for an indefinite period. It had told both the man and the woman to fully cooperate with the mediation proceedings keeping their interest in mind and the fact that it might not be advisable for them to litigate for an indefinite period. But nothing apparently came out of it. Thereafter, the apex court was later told that the issue was not resolved in mediation. Pleadings: The man’s counsel told the court that he would try to persuade him in this regard. Meanwhile, the lawyer representing the woman told the bench that she wants to get a divorce on the ground of cruelty. “We are ready to withdraw the 498a (subjecting a married woman to cruelty) ipc case. We do not want any alimony also. She does not want to live with him,” her counsel said. Order: The Supreme Court has said that a wife is not a “chattel” or an “object” and she cannot be forced to reside with her husband even if the man desires to live with her. “She is not a chattel. You cannot force her. She does not want to live with you. How can you say that you will live with her,” a bench asked the man. The bench asked the man to “re-consider” his decision and desire to reside with his wife in view of the categorical statement by the woman’s counsel that she does not want to live with him. “You better re-consider it,” the bench told the man. “How can he (man) be so unreasonable? He is treating her as a chattel. She is not an object,” the bench told the lawyer appearing for the man.Page 24

The CourtroomCauvery Water Dispute Verdict:Supreme Court Issues DirectivesThe Supreme Court on 2nd April asked the Centre to formulate and file the draft Cauvery managementscheme before it by May 3 and directed the authorities of Tamil Nadu, Karnataka and other stakeholders toensure peace in the meantime. Political leaders have bemoaned the Supreme Court’s latest directive on theCauvery issue, fearing it could pave the way for the further delay in Tamil Nadu getting its due share of Cauv-ery waterBenchA bench headed by Chief Justice Dipak Misra said it had considered the award of Cauvery Water DisputesTribunal (CWDT) while deciding the water share for Tamil Nadu, Karnataka, Kerala and Puducherry in itsjudgment.The bench said that its judgment has to be complied with by all the stakeholders. The court said the authoritiesare required to ensure peace till it peruses the draft scheme and finalises it for proper distribution of Cauverywater.“The apex court’s proposal for a draft scheme would only delay the process further. If the court was in agreement with thefinal verdict of the Cauvery Water Disputes Tribunal, save for the quantum of water for each State, then where was theneed for a separate scheme and a draft [of the scheme], when the Cauvery Management Board had already been spelt out?The ruling is not fair and is contradictory. Our united struggle would continue,” CPI (M) State secretary K. Balakrish-nan told The Hindu.JudgementThe apex court, in its verdict, had asked the Centre to formulate a scheme to ensure compliance of its 465-pagejudgment on the decades-old Cauvery dispute. It had modified the CWDT award of 2007 and made it clearthat it will not be extending time for this on any ground. The top court had on February 16 raised the 270 tmcftshare of Cauvery water for Karnataka by 14.75 tmcft and reduced Tamil Nadu’s share, while compensating itby allowing extraction of 10 tmcft groundwater from the river basin, saying the issue of drinking water has tobe placed on a “higher pedestal”.CPI State secretary R. Mutharasan said the SC had only facilitated the Central government’s intention to delaythe implementation of the final verdict of the Cauvery tribunal. On a positive note, S. Ranganathan, generalsecretary of the Cauvery Delta Farmers’ Welfare Association, said, “We are extremely glad about the SupremeCourt’s directive and its refusal to grant the Centre’s request for an extension of time. The court has also made it clear thatits order is based on the Cauvery Water Disputes Tribunal’s final award, which has been merged with the decree.”Order allotting Pressure Cookersymbol to Dhinakaran stayed bySupreme CourtT.T.V Dhinakaran, the leader of the unrecognized faction of the All India Anna Dravida Munnetra Kazghagmhas been stopped from using the symbol of the pressure cooker by the Apex Court for a while. After the deathof Jayalalithaa Jayaraman in December 2016, All India Anna Dravida Munnetra Kazhagam was broken intotwo groups, both claiming to be the rightful representatives of the two leaves party. The dispute was finally Page 25

Libertatem Magazine - Edition 39 settled by the Election Commission when it recognized the group led by the Tamil Nadu Chief Minister Edap- padi K Palaniswami and Deputy Chief Minister O Panneerselvam as the real AIADMK and the rightful repre- sentative of the Two Leaves party symbol. In November 2017 Dhinakaran moved to the High Court against this decision of the Election Commission. Dhinakaran knocked on the doors of Delhi High Court in January 2018 seeking permission to use a different name and symbol for his group until the Court decides as to which group can use the name and symbol of All India Anna Dravida Munnetra Kazghagm. On 9th March 2018, Justice Rekha Pilla of Delhi High Court passed an order which allowed T.T.V. Dhinakaran to use the graphical representation of pressure cooker as the party symbol in the upcoming local body elections. The poll panel was also directed by the High Court to allow a party name to the faction of leaders led by T.T.V Dhinakaran. It should be mentioned here that the same symbol of the pressure cooker was also successfully used by him in R.K Nagar constituency by-election. Order further instructed Election Commission to do the needful within three weeks. A week later, on 15th March AMMK was formally launched with T.T.V Dhinakaran as its party leader. T.T.V Dhinakaran is the nephew of ousted party leader V.K Sasikala who received a four-year jail term by the Supreme Court in the disproportionate assets case. Currently, V.K Sasikala is serving her term in Bengaluru’s Parappana Agrahara central prison. Verdict of the Court On Wednesday 29th March 2018 Supreme Court of India put a stay on the above-mentioned order. The Supreme Court bench headed by the Chief Justice of India Deepak Mishra said that this matter needs immediate attention. Moreover, Chief Justice of India also directed the acting chief justice of Delhi High Court Justice Gita Mittal to constitute a division bench and give the final verdict in this cases by April-end. Learning of the case From this case, we learn that judicial system of India tries its level best to make sure that nobody is denied the right to contest the election.Supreme Court: Chief Justice ofIndia has powers to decideDistribution of Cases Supreme Court of India settled the controversy regarding the power of CJI in the allocation of cases on Wednes- day by dismissing a petition which asked CJI to consult two senior-most judges of the apex court before distrib- uting cases. Facts Uttar Pradesh based lawyer Ashok Pandey filed a petition in Supreme Court of India questioning the unilateral power of CJI to constitute benches randomly and allot cases. Petitioner was seeking a mandamus to the regis- trar of Supreme Court for constituting benches and allotment of cases in both High Court and Supreme Court. This petition was filed keeping in mind the press conference in January in which four senior-most judges of the Supreme Court after CJI put forward their grievance against the manner in which cases were being allotted in Supreme Court along with few other issues. They said that they had written letters to CJI highlighting this issues but no action was taken and added that “the CJI was only the first among equals nothing more and nothing less”. The decision of the Case The bench consisting of CJI Deepak Mishra, Justice AM Kurian, and Justice Chandrachud passed the order dis- missing his petition. Judgment was delivered by Justice Chandrachud who said that “it is a well-settled principle of law that no mandamus can issue to direct a body or authority which is vested with the rule-making power toPage 26

The Courtroommake rules or to make them in a particular manner. The Supreme Court has been authorized under Article 145 toframe rules of procedure. A mandamus of nature sought cannot be issued” and authority to constitute bench andassign case was exclusively in the domain of the prerogative powers of the Chief Justice. Furthermore, it was alsomentioned in the judgment that CJI is an institution in himself and “Seniority in terms of appointment has nobearing on which cases a Judge should hear. It is a settled position that a judgment delivered by a Judge speaksfor the court (except in the case of a concurring or dissenting opinion). Moreover, Court also ruled that submis-sions of petitioner regarding constitution of benches in High Court lacked merits.Learning of the caseFrom this case, we learn that Chief Justice of India is the undisputed master of rolls and his decision is final inallotment of cases.Supreme Court: AadhaarBiometrics do not intrude PrivacyPrivacy has been a key focus in the recent debate on Aadhaar. This is a very welcome development. Privacy isbeing interpreted in different, equally valid, ways by different sets of people. But the differences in interpreta-tions are not always obvious to those who participate in the discussions. For instance, when computer scientistsuse the word privacy, they tend to it interpret from a narrow ‘data security’ perspective, whereas the lawyers inthe Supreme Court have been highlighting the civil liberties angle to it. This has resulted in groups talking pasteach other – the solutions that the computer scientists propose, for instance, (like stronger standards for datasecurity, including encryption) are not satisfactory to those who highlight the civil liberties aspects of privacy.Constructive conversation on the issue requires a more elaborate look ate the different dimensions of privacy.BenchOn 1st April, a five-judge Constitution bench of Supreme Court comprising of Chief Justice Dipak Misra andJustices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan told the Centre to stipulate the limitsthat will govern Aadhaar.The Court ProceedingsThe court also upheld that the unique identification number scheme, biometrics collected at the time of enrol-ment of a resident of India. While referring to Section 2(g) of the Aadhaar Act, 2016, the court informed attorneygeneral K K Venugopal that biometrics could never be invasive.As per Section 2(g) of the Act “biometric information” is defined as “photograph, fingerprint, iris scan, or suchother biological attributes of an individual as may be specified by regulations”. This Act allows the governmentto add in future to the list of biometric details that UIDAI can require a citizen to part with during enrolment.The Chief Justice of India Dipak Misra said that the government cannot take blood or urine samples in the nameof collecting biometrics for enrolling her/him in Aadhaar. This collection of data by UIDAI has to be non-inva-sive.The SC also asked if voluntary enrolment could mean waiving of Right to Privacy. On the question of those whoenrolled prior to the Act, the Centre had argued that people who had done so by waiving their right to privacycould not now claim violation of their rights. But the CJI said, “If you say fundamental rights can be waived offvoluntarily, and if we uphold it, it will lead to very grave consequences.”Additional solicitor general Tushar Mehta appearing for UIDAI said Aadhaar has the fundamental benefits bystopping frauds that had been committed in the past. He said the maximum possible security was accorded bythe UIDAI for safe storage of Aadhaar data. “Despite Section 302 of IPC punishing murderers with death or lifesentence, it has not been able to stop murders,” he said. The bench agreed and said, “It is virtually a cat-and-mouse game.” Page 27

Libertatem Magazine - Edition 39 Supreme Court asks U.P. Wakf Board to produce Shah Jahan’s Signature to back Taj Mahal’s Ownership Claim Located on the south bank of river Yamuna, Taj Mahal was commissioned in 1648. The site was designated UNE- SCO World Heritage site in 1983. The Supreme Court on Tuesday asked the Sunni Waqf Board to present papers signed by Mughal ruler Shah Jahan in a week’s time after they claimed that Taj Mahal is owned by the king in the ownership battle case against the Archeological Survey of India (ASI). Judges Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud. The bench reminded the board that the 17th-century monument and other heritage structures built by the Mughals had passed on to the British. Later, it came to be vested with the government of India after Independence and was being managed by the ASI. Factual Matter Of The Case The board is engaged in a legal battle with the Archaeological Survey of India (ASI) over the ownership of the Taj Mahal. Today, the Apex Court has made an observation while hearing a petition filed by the ASI against the board’s 2005 order to register the white marble monument as the property of the Sunni Wakf Board. The ASI in 2010 had petitioned the court against the Wakf board’s July 2005 decision ordering that the Taj be registered as the latter’s property. There is a stay on the order. Shah Jahan had died in 1666, almost 18 years after he had built the Taj Mahal in the memory of his late wife Mumtaz Mahal. Claims By The Parties Counsel Counsel V V Giri has been arguing on behalf of the Uttar Pradesh Sunni Wakf Board and he has clearly stated that Shah Jahan had executed a wakf nama (inalienable charitable under the Islamic law) in favour of the board. He also said that Shah Jahan had himself declared the monument a waqf – an endowment of land by a Muslim for religious, educational or charitable purposes – and had executed a waqfnama in favour of the board. To this, the CJI directed the board to show the original deed to the court with Shah Jahan’s signature. The court also wondered how Shah Jahan could have signed the wakf nama when he was lodged in jail. Shah Jahan was lodged in the jail at the Agra fort by his son Aurangzeb. While, on the other hand, ASI advocate ADN Rao argued that there was no Wakaf nama. The lawyer said that “Under the 1858 proclamation, the properties taken over from the last Mughal emperor, Bahadur Shah Zafar, by the British vested with the Queen. By the 1948 act, the buildings were taken over by the Indian government.” Order The Supreme Court has ordered the Sunni Wakf Board to produce documents to attest to its claim that Shah Jah- an had declared that the Taj Mahal as a property of the board. “Who in india will believe it belongs to the wakf board? These kinds of issues must not waste the time of the supreme court.” The CJI asked the board: “How did he (shah jahan) sign waqf nama? He was in jail and used to view the monument while in custody.” The apex court bench of CJI Dipak Misra asked the Sunni Wakf Board to submit documents signed by Mughal emperor Shah Jahan to support its claim. The court has given a week’s time to the board to produce the signatures of the Mughal emperor who died in 1666.Page 28

The CourtroomDelhi HC directed Young Indian topay 10 crore rupees in NationalHerald caseYoung Indian Pvt Ltd (YI) had been directed by Delhi High Court on Monday, March 19th to pay Rs. 10 crore tothe IT department following a case of alleged misappropriation of funds of funds by the company.Facts of the caseIT department had sent a notice to the Young Indian Pvt Ltd (YI) on 27th December 2017 under section 156 of theIT Act to pay Rs. 49.83 crore which is 20% of Rs. 249.15 crore, the amount that is due to tax and interests as pertax authorities for the assessment year 2011-12. Young Indian had approached the High Court challenging thesaid notice stating that they are a charitable organization and they do not have any income, hence they are notliable to pay any tax and was wrongly imposed the tax amount of Rs. 249.15 crore.The information as provided to the Court was that a case of misappropriation of funds, cheating and fraudcharges were brought against Young Indian by the IT department following a complaint filed by Bharatiya Jana-ta Party (BJP) MP Subramanian Swamy accusing the main stakeholders of the company of criminal conduct inhis complaint stating that “a firm in which Sonia and Rahul Gandhi each own a 38 percent stake”.Investigations revealed that the 83.3% shares of Young Indian were held by Sonia Gandhi and Rahul Gandhi, afirm which was incorporated in 2010 with a capital of Rs. 50 lakh. Young Indian had acquired all the stakes inAssociated Journal Ltd (AJL), the owner of the National Herald newspaper for Rs. 50 lakh in lieu of Rs. 90.25crore owed by AJL to the Congress Party.Previously Gandhi and other accused Congress Party members were granted bail on 19th December 2015 oncharges of dishonest misappropriation of property, criminal breach of trust and cheating read with criminal con-spiracy.Advocate Arvind Datar representing Young Indian further stated that the income tax authorities should inves-tigate their claims that the company is exempted from paying taxes as per IT Act. He requested the Court for aninterim stay order on the notice sent by the IT department until the case is reviewed by the Commissioner of IT(Appeals).It was pointed out by Advocate Ashish Jain on behalf of the IT department that as per the new 2017 memoran-dum of the Central Board of Direct Taxes (CBDT) a deposit of 20% of the disputed income tax demand need to bepaid by the aggrieved taxpayer in order to obtain a stay until the matter can be disposed of by the Commissionerof IT (Appeals).Court proceedingsThe Division Bench of the High Court comprising of Justices S. Ravindra Bhat and A.K. Chawla reviewed thefacts of the case and refused to grant the plea of the Young Indian. The Court directed the company to pay Rs.10 crore to the IT department in two installments; the first half by 31st March and the next by 15th April beforefurther hearing of the case on 24th April. The Court urged the CIT (Appeals) to expedite the plea proceedings ofthe Young Indian and to soon dispose of the case.Advocate Datar’s contentions that it would be quite difficult for the firm to cough up Rs. 10 crore within theallotted time period and the amount should be reduced to Rs. 7.5 crore was not accepted by the Court. The HighCourt stated that the payment of Rs. 10 crore would absolve the company for the time being and the tax authori-ties will not charge the company with any dues until the case is disposed of by the CIT (Appeals) while rejectingAdvocate Jain’s views that 20% of the disputed amount be paid by the company. Page 29

Libertatem Magazine - Edition 39 Jharkhand Court Awards Life Im- prisonment To Eleven Accused In Lynching Of Meat Trader Over Transporting Beef A Fast Track court in Jharkhand awarded life term to 11 persons for the lynching of a meat trader in Ramgarh district on suspicion of transporting beef. Facts A meat trader named Alimuddin Ansari alias Asgar Ali was lynched on 29th July 2017 by a mob in Bazartand area of Ramgarh district. Victim Alimuddin Ansari was transporting beef in his vehicle from Chitarpur area in Ramgarh when his vehicle was intercepted near a gas agency in Bazartand by members of gau rakshak samiti. The meat trader was lynched by the mob in broad daylight and his vehicle was set on fire. The victim was fol- lowed by Raju Kumar, one of the accused from Chitarpur and it was he who informed others about Ansari’s po- sition. A video of the incident was posted online and circulated on various social media websites and platforms. Verdict and Proceedings of the case Police filed charge sheet against 12 accused in September last year and trial was completed within 6 months. The prosecution presented 19 witnesses to support their case and defense presented one witness. Court declared them guilty on 16th March and their punishment was decided on 21st March. Out of all the 12 accused 11 were convicted of life imprisonment along with separate prison terms under various sections of the Indian Penal Code. They were all found guilty of murder, rioting, rioting with a deadly weapon, unlawful assembly, mischief causing damage and mischief by fire. Three of them have also been sentenced under criminal conspiracy. They were further slapped with a fine of rupees 2000 each. Moreover, Court has also instructed DLSA to initiate pro- ceedings to provide the family of the victim with adequate compensation as the victim was the sole breadwinner of the family. Additional Public Prosecutor Sushil Kumar Shukla prayed to the court for maximum punishment but defense requested leniency on the ground that this was the first criminal case against them. The court de- ferred the trial of 12th accused on account of him being a minor. The prosecution wanted the 12th accused to be tried as an adult as he is between 16 to 18 years of age. Additional Public Prosecutor Sushil Kumar Shukla said this was the first case of cow vigilantism in the country in which accused were convicted and punished. Defense Counsel DN Singh said This was an inaccurate judg- ment and he will file an appeal against the conviction in Jharkhand High Court. Widow of Alimuddin Ansari Mrs. Mariam Khatun said she is satisfied with the verdict. Learning of the case From this verdict, we learn that lynching is a serious offense and preparators of such a crime will be punished strictly.Metropolitan Magistrate Permitswoman to serve summons to Hus-band via WhatsApp, SMS or E-mailPage 30

The CourtroomIn 2015, the respondent left for Australia to pursue further studies and gradually severed all contact with hiswife and daughter (who was two years old then) that lived in Noida. The complainant continued to stay in theirrented accommodation in Noida but soon joined her parents in Delhi after the husband stopped paying rent forthe house. After a few months, he severed all contacts with them.The petitioner, therefore, had filed a domestic violence case against him. Advocate Kumar also shared that ittakes over two weeks for summons to be served on anyone outside India and the Ministry had raised objectionswhen the summons was sent for the man in Australia as he has changed his address there and therefore, theywere left with no option but to request the court to allow service through WhatsApp, SMS, and e-mail.With all attempts at serving summons having failed, Pal and Kumar requested the magistrate the prepone theircase which was listed on May 16. When the court took up the matter this month, it was informed that the com-plainant wishes to serve the summons on her husband.Order:Appreciating the difficulty posed on this account, the Judge passed the following order, “In view of the submis-sions made and considering the fact that respondent is residing in australia and ordinary service shall take time. Petitioneris allowed to serve the summons upon the respondent no.1 Through whatsapp, text messages and e-mail.Petitioner is directed to file an affidavit with regard to the submission/fact that e-mail id, mobile number, etc. Belong to therespondent no. 1 And that the service has been effected upon him only.”Learning outcome:If we see, then Technology has come to the rescue for the abandoned women and her little daughter. WhileParliament is keen on enacting stringent laws for NRI Husbands, senior advocate Ms. India Jaising filing petitionfor promoting the application of technology, I think very soon big revolution shall be taking place in the LegalIndustry. The law plays a huge role in all our lives, it impacts each and everyone. With the continuous changes insociety, it becomes crucial for the judiciary to be able to keep its pace with rapidly changing technologies.Kerala High Court to decidewhether misreporting by media isdisrespectful behavior towardsjudiciaryIssue:Whether additional restrictions should be placed on the media when it comes to court reporting, to prevent dis-respect to the judiciary on account of misreporting?Arguments:While the petitioner contended that, “The reporting of observations during arguments by the Judges with regard to thecases in Kerala is deprecating the prestige of High Court of Kerala.” “It was reported that the Judge concerned has men-tioned that, it is better to close down KSRTC. This was reported in various papers as the main item. Subsequently, the verysame Judge has stated that he has not mentioned that, he only opined that the functioning of the KSRTC has to be improved”Nevertheless, he prayed for the issuance of guidelines by the Court. Notably, he calls for a general bar on thereportage of oral observations made in court. The petition prays for a writ of mandamus preventing the oral Page 31

Libertatem Magazine - Edition 39 observations made by Judges during arguments. Instead, the petitioner recommends that the Court only permit the publication of written, interim and final orders of the Court. While, the Times of India has submitted its own affidavit which reportedly talked about the Freedom of the press, which undoubtedly is a fundamental tenet of the Constitution of India. Countering Kappan’s submissions, Advocate Kaleeswaram Raj appearing for Times of India group, fell back on the Constitutional scheme qua freedom of speech under Article 19. It was submitted by Raj that constitutionally permitted reasonable restrictions already regulate the media through laws such as the Contempt of Court Act, 1971, the Cable Television Networks (Regulation) Act, 1995 and the Press Council Act, 1978. Authority Cited: The respondent cited a number of Precedents to contradict the arguments of the Petitioner by quoting judgments such as Naresh Shridhar v. state of Maharashtra, Dinesh Trivedi v Union of India, Shreya Singhalv. Union of India and Brij Bhushan v State of Delhi. Particular reliance was placed on the Sahara case [Sahara Indian Real Estate Corporation & Others Vs Securities and Exchange Board of India & Another], wherein the Supreme Court had held that what would be offending publication has to be decided on a case to case basis. Order: The Court reserved its judgment in a 2014 writ petition filed by one, Dejo Kappan of the Centre for Consumer Education at Pala, who contends that misreporting by TV channels and newspapers has resulted in garnering disrespect to the judiciary. Read Here Learning Outcome: It would be a sad day for the court to employ the media for setting its own house in order, and media too would certainly not relish the role of being the snoopers for the court. If it is wrongly and irresponsibly reported by the media then strict actions shall be taken against them to avoid such instances in future. It is really inappropriate and contemptuous if media fails to report the correct judgments and cause interference. The media shall not cross all the limits of propriety, gentility and professional etiquettes. But, again it is the right of an individual to know every relevant point related to administration of justice. Recently Ms. Indira Jaising filed a PIL to ensure transparency in the Indian Judiciary System. It keeps the judge himself while trying under trial in the sense that security of securities is publicity. An important facet of freedom of the press is the dissemination of information regarding judicial proceedings. As Jeremy Bentham, the 18th-century British philosopher put it, “Where there is no publicity, there is no justice. Publicity is the very soul of justice.” Journalists thus play a pivotal role in informing the public about judicial proceedings and orders throughout the country.Man Acquitted 14 Years afterDeath by Bombay High Court In a perfect example of justice delayed but not denied, Bombay High Court decides a 20 years old criminal case by acquitting the accused posthumously after 18 years. Facts On 21st November 1998, an employee of Maharashtra State Electricity Board Mr. Balasaheb Jagtap confronted a conductor about a complain he had lodged against him at state transport bus stand in Satara.Page 32

The CourtroomIt was alleged that Jagtap had punched the conductor which led to bleeding from his head. Trial Court in theyear 2000 found Jagtap guilty of causing hurt and imprisoned him for a term of three months and the samewas affirmed by the Sessions Court in 2004. Jagtap left for his heavenly abode in 2004 while the matter was stillpending in the Sessions Court. On a special request, his son was granted the permission to carry forward thepetition. Son of Balasaheb Jagtap appealed against the verdict of the Sessions Court in Bombay High Court. Fol-lowing was the main issue before the High Court.IssuesCan legal heirs of the accused appeal against conviction order after his death?Judgment and ProceedingsThe prosecution submitted that both the subordinate courts had upheld the conviction. Defense CounselsAdvocates Dilip Bodake and Umesh Yadav brought to the attention of the court that there was no independenteye-witness of incident in-spite of it happening in a public place. It was also submitted that according to themedical report, the injury was caused by a hard and blunt object and keeping in mind the job of the victim, hecould have injured himself by falling off the bus. Furthermore, it was also discovered that the conductor wascaught misappropriating the money charged for tickets from passengers because of which he was dismissedfrom the service.Bombay High Court after listening to both the sides acquitted the accused and directed that if any fine was paidby accused same should be returned to the family of the accused. The Hon’ble judge Justice Prakash Naik saidthat in light of the animosity between the complainant and the accused, and the contradiction in the evidence, adoubt was created about the allegations. The trial court ought not to have convicted the accused of the offense.Furthermore, The Court also added that under section 394 of the Criminal Procedure Code, every appeal in acriminal case abated on the death of an accused. An exception occurs if an appeal is filed against a conviction,then within 30 days of the death accused, a close relative can seek permission to continue the appeal.Learning of the caseFrom this case, we learn that under section 394 of Criminal Procedure Code allows a person to be acquitted evenafter his death provided his near relatives continue the proceedings.Kerala High Court Slams MMMani’s Sexually Loaded RemarksThe Kerala High Court on 30th march termed as “serious” the allegation that state Power Minister MM Manimade “unsavoury” remarks against women at a recent public meeting in Idukki.BenchThe observation was made by a high court’s vacation bench of justices PN Ravindran and PV Asha while hearinga plea by Kerala resident George Vattukulam, who has sought a court-monitored probe into the allegations thatMani made the “sexually-loaded, anti-women statements” at a public meeting.Court proceedingsWhile hearing the plea against Mani, the court asked the state counsel if the Kerala police chief was not aware ofit. The bench posted the query as the state counsel opposed Vattukulam’a plea. The bench then also directed thepetitioner to produce the CD of the minister’s speech and the copy of the complaint made to police in this regard.The state counsel opposed the plea, contending that the petition was not maintainable as the petitioner ought tohave approached the police or a magisterial court for a probe into the matter. The counsel denied that the minis-ter made any derogatory remarks against women. He added he was mentioning about media persons during hisspeech. Page 33

Libertatem Magazine - Edition 39 At this, the high court observed that the media persons too have their fundamental rights. The bench subse- quently posted the matter for further hearing on next Tuesday. The petitioner has alleged that Mani had used abusive language against women leaders and activists of “Pem- bilai Orumai”, a group of plantation workers in Idukki district who had organised a month-long stir in Munnar last year. “The respondent is a habitual offender and regularly uses abusive language and sexually-loaded statements especially against the women,” the petition said. Mani, however, had refuted the allegation against him on the floor of the state assembly. He had told the assem- bly that he had not used any offensive language against women. “I have not used the word woman even once in my 17-minute speech,” which, he claimed, had been edited by the me- dia, a section of which was against him. I have not used the word woman even once in my 17-minute speech The petitioner alleged Mr Mani outraged the modesty of women by using abusive language, and statements with sexual overtones against more than 10,000 women who participated in a historic struggle. Mr Mani had earlier insulted a woman principal of Painavu Government Polytechnic using abusive language and later he apologised for that, the petitioner said. The minister is a habitual offender and regularly uses abusive language and lewd remarks against women. The petitioner also accused Mr Mani of using abusive language against efficient civil service officers. The petitioner submitted that the state police chief is not taking any action in the wake of the controversial speech. “Even if a complaint is filed against the minister, there is no chance for further proceedings.”Non-consensual Marital Sex is notRape says Gujarat High Court Monday, 2nd April 2018 marked an important day towards women’s emancipation when Gujarat High Court declared that marital rape is an intolerable cruelty towards women. A Single Bench judge of the High Court, Jus- tice JB Pardiwala ruled that non-consensual sex between a married couple does not constitute rape if the woman is above 18 years old. But, Justice Pardiwala also commented that “marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised.” The facts of the case relate to the filing of the FIR by a lady doctor against her husband with the Idar Police Station in Sabarkantha district. She alleged that her husband had subjected her to non-consensual and unnatural sexual acts. She also complained about being harassed over dowry and stated that the police did not cooperate with her when she went to them. She requested the Court that her case is transferred to the CID or CBI for prop- er investigations. The husband of the petitioner moved to Gujarat High Court to squash her petition of marital rape. Points of contention The main points of contention that were raised in this case were two. • Whether wife’s non-consent during sexual act has any legal basis for the husband. • Whether or not forceful oral sex would fall within the ambit of Section 377 which deals with unnatural sexual acts. After the decision of the Supreme Court that sex with a girl below 18 years of age is rape even amongst married couples; this decision of the Gujarat High Court tantamount to a win for women’s rights groups as Justice Pard- iwala observed marital rape is an issue that needs to be taken seriously as it dehumanises women and statutory measures that call for its abolition should be put into effect immediately.Page 34

The CourtroomThe decision of the CourtJustice Pardiwala after going through the petition ruled in favour of petitioner-husband stating that althoughnon-consensual but sexual acts between legally adult married couples could not be considered as rape as thereis no such provision mentioned under Section 375 IPC and hence it is not a criminal act albeit it is a crueltytowards the wife. The Court further observed that her case need not be transferred to the CID or CBI for properinvestigations and reiterated that police investigations should continue to help resolve the matter.The Court, however, refused to quash the dowry harassment allegations and directed the DSP of Himmatnagarto look into her complaint regarding police non-cooperation and redress her grievances on such issues. Theparents of petitioner-husband were also excused from the case as the Court stated that it is a case involving amarried couple where in-laws had no particular roles.On charges of forceful oral sex, the Court explained that the wife can file charges under Section 377 IPC butopined that “except the sexual perversions of sodomy, buggery and bestiality, all other sexual perversionswould not fall within the sweep of Sec 377 of the IPC.” She, however, can file charges under Section 354 (outrag-ing women’s modesty) according to Justice Pardiwala.This marks a change in our justice system where for the first time marital rape is considered a cruelty and JusticePardiwala further categorised the various forms of marital rape. The decision of the Gujarat High Court ushers apositive change in attitude towards equality (Article 14) as envisioned in our Constitution.Jodhpur District Court: BlackbuckPoaching Case Verdict; ActorSalman Khan Convicted; othersacquittedFor the uninitiated, the blackbuck, also known as the Indian antelope, is an antelope found in India, Nepal andPakistan. The species was given its binomial name by Swedish zoologist Carl Linnaeus in 1758. The blackbuckis an endangered species and is protected under Schedule I of the Indian Wildlife Act. Salman and other actorsincluding Saif Ali Khan, Tabu, Sonali Bendre and Neelam are accused of killing two blackbucks in Bhagoda kiDhani in Kankani village near Jodhpur on the intervening night of October 1-2, 1998, during the shooting of thepopular Hindi film Hum Saath Saath Hain. All of them were in a Gypsy car that night, with Salman Khan in thedriving seat. He, on spotting a herd of black bucks, shot at and killed two of them.Salman and his co-stars allegedly went on a hunting session in Bhagoda ki Dhani in Kankani village and killedtwo blackbucks. Poonamchand Bishnoi, a local from the Bishnoi community that protects blackbucks for reli-gious reasons, claims that he had gone out to answer the nature’s call when he heard gunshots. He claims he sawthe headlights of a jeep and noticed Salman and Saif in the front seats and Tabu, Neelam and Bendre in the backseats. Bishnoi claims that he heard Salman’s co-actors telling him to shoot at a herd of blackbucks which Salmandid. He killed two blackbucks, the witness alleges. All allegedly fled the spot when spotted by Bishnoi, leavingbehind the carcasses of the blackbucks. Bishnoi claims he noted down the number of the jeep and informed theforest department. The forest department recovered the carcasses of black bucks. A forensic report said that theblood samples obtained from Salman’s car matched with those of black bucks.Subsequent stages of proceedings• In October 1998 Salman Khan Salman Khan was arrested for the offence and later on granted bail• In the year 2006 Salman Khan was convicted in the hunting case by one of the trial courts under the Wildlife Protection Act. The actor is fined Rs 25,000, and, also sentenced to 5 years of imprisonment. Page 35

Libertatem Magazine - Edition 39 • In the year 2007 Salman Khan was sentenced to five years in prison but eventually, it was suspended on his appeal. • In the year 2012, the High Court of Rajasthan finalized charges against all accused. • In the year 2016 Salman Khan was acquitted by the High court but an appeal was filed by the Government against the acquittal by the High Court to the Supreme Court and as a consequence, the Supreme Court agreed to expedite the hearing in the two cases of blackbuck and chinkara poaching against Khan. • In the year 2018 Salman Khan is convicted. The other accused are acquitted. Sentencing Salaman khan has been sentenced to five years and fined Rs 10,000.AAP Supremo Arvind Kejriwal’sapology lead to closure ofdefamation suit by Delhi HC Delhi Chief Minister Arvind Kejriwal tendered his apology to Union Minister and BJP leader Arun Jaitley which brought closure to the Rs. 10 crore defamation suit filed against him by Mr. Jaitley. Facts of the case In December 2015 Indian Finance Minister Arun Jaitley had filed a civil defamation suit against Arvind Kejriwal and AAP leaders Sanjay Singh, Deepak Bajpai, Kumar Vishwas, Ashutosh and Raghav Chadha. AAP leaders had accused the BJP leader of corruption in DDCA (Delhi and District Cricket Association) when he was serving as President of DDCA during 2000 to 2013. Minister Jaitley denounced any foul play during his time as President and objected to AAP leaders accusation. He further stated that the false accusations had tarnished his reputation and thus he was seeking reparations to the tune of Rs. 10 crore for public defamation of his image. Court proceedings Delhi Chief Minister Arvind Kejriwal and Union Minister Arun Jaitley both filed a petition with Delhi High Court on Monday, 2nd April 2018. Kejriwal represented by his lawyer advocate Anupam Srivastava told the Court that he had formally apologised to the BJP leader which has been accepted by Mr. Jaitley. The other AAP leaders except Kumar Vishwas tendered their own apologies to the Union Minister as well. In his apology letter to the Union Minister, Mr. Kejriwal stated, “I have recently discovered that the information and the imputations contained therein are unfounded and unwarranted and I was clearly misinformed into mak- ing these allegations.” Kejriwal urged Mr. Jaitley to forget such “unsavoury litigations” so that they both could move forward to “serve the country to the best of our abilities.” Arvind Kejriwal also declined to accept any responsibility for the defamatory remarks passed by his former advocate Ram Jethmalani during cross-examination of this defamation suit. Mr. Jaitley had filed a second def- amation suit of Rs. 10 crores against Delhi CM when Senior advocate Jethmalani had used defamatory words against the Union Minister on March 19. Mr. Kejriwal unequivocally denied he had any role to play in the second defamation case and claimed that he had “never instructed his then counsel to use any scandalous words against the minister during the recording of evidence.” Arun Jaitley represented by his lawyers’ Senior advocate Rajiv Nayyar and advocate Manik Dogra also con- firmed AAP Supremo’s contention and stated his desire to see the closure of the defamation suit. Justice Manmo- han accepted the contention of both the parties and disposed of the two-year-old defamation suit on 3rd April allowing AAP leaders a breather after the party leaders were seen getting embroiled in more than 20 defamation cases.Page 36

The CourtroomBombay High Court asks BMC tore-issue Child’s Birth Certificatewithout Father’s NameThe Bombay High Court has directed the Brihanmumbai Municipal Corporation (BMC) to issue a new birthcertificate to a baby girl without mentioning the biological father’s name. The child was born to a single moth-er with the help of a sperm donor.JudgesJustices AS Oka and RI Chagla has told the corporation that the fresh birth certificate should leave a blankspace for the father’s name.Facts of the CaseThe court was hearing a petition filed by a 31-year-old single mother from Nalasopara in Maharashtra’s Pal-ghar district. The petitioner had given birth in August 2016 using in vitro fertilisation.The lady contended that she should not be forced to disclose the name of the child’s father. She had initiallyrequested the BMC’s birth registration department to allow her to not mention the father’s name in the docu-ment. However, when the civic authorities refused to grant her permission and incorporated the father’s namein the certificate from hospital records, she approached the High Court.Last week, the BMC had produced the child’s birth certificate and the original records before the high court.As per the records, at the time of the child’s birth, the petitioner had submitted her full name and claimed thatshe was married to a businessman.Though the woman questioned the authenticity of the form, the civic body said it had her signature. The cor-poration also said that it did not have the powers to delete an entry related to a birth or death once it had beenentered in its records.Case ReferredThe petitioner has cited a 2015 landmark judgment of the Supreme Court that said single mothers must not becompelled to disclose the name of their child’s biological father in birth certificates. “The judgment is bindingon the respondents,” her petition said. “However, the respondents have failed, avoided and neglected to com-ply with the said Supreme Court direction.” Read HereOrderThe bench said, “While the High Court cannot order the deletion of an entry in the hospital form and conse-quently in the birth register, nevertheless, in view of the apex court order, the corporation is directed to recallall the birth certificates of the petitioner’s child already issued. The court also asked the Municipal Commis-sioner to appoint an officer in two months to probe the allegations made by the mother.”Calcutta High Court Halts Pancha-yat Elections In West Bengal Page 37

Libertatem Magazine - Edition 39 Facts Filling of nomination for Panchayat Election began on 2nd April and was supposed to finish on 9th April. A group of political parties alleged that ruling party is not allowing them to file their nomination documents and have unleashed a wave of terror on their candidates contesting elections. In response to this State Election Com- mission by way of notification released on the evening of 9th April extended the last date of nomination by 1 day. Same notification was pulled down by State Election Commission when Trinamool Congress filed a petition against the above-mentioned notification in Calcutta High Court. This led to BJP filling a petition in both high court and Supreme Court. The decision of the case Hon’ble Justice Subrata Talukdar of the Calcutta High Court passed an order stopping the panchayat election process from moving ahead and the State Election Commission was asked to submit a detailed status report on the poll process, which shall include data about the number of nominations filed and percentage of nomi- nations rejected, amongst other information. Furthermore, Court set 16th April as the next date of hearing for listening to the pleas challenging the State Election Commission’s decision to withdraw notification dated 9th April. On 10th April Justice Talukdar had stayed the withdrawal of State Election Commission’s April 9 notifica- tion instructing the Commission to consider it as kept in abeyance. Supreme Court of India on Wednesday had instructed BJP to go to Calcutta High Court for the solution to its problem regarding the last date for filing of nominations. Conduct of BJP moving to both High Court and Supreme Court on similar pleas amounts to forum hopping. Moreover, a fine of rupees 5 lakh was also imposed on the BJP for misrepresentation by the court. Con- gress and CPM had also rushed to High Court challenging State Election Commission’s decision.Accused in Mecca Masjid Blastacquitted Eleven years after an Improvised Explosive Device (IED) ripped through the heritage Mecca Masjid near Charminar in Hyderabad (now in Telangana) claiming nine lives and injuring 58 persons and with the probe be- ing handed from local police to CBI to NIA, A special court of the National Investigation Agency (NIA) on 16th april acquitted five men, including Swami Aseemanand, accused of being involved in the Mecca Masjid blast in Hyderabad in 2007 that killed nine people citing lack of evidence. A special anti-terror court today acquitted right-wing activist Swami Aseemanand and four others in the 2007 Mecca Masjid blast case, ruling that the prosecution failed to prove charges against them. A massive blast had ripped through the Mecca Masjid on May 8, 2007, during Friday prayers, killing nine people and wounding 58. “The prosecution failed to prove allegations against the five accused who faced trial in the case and hence the court acquit- ted them,” PTI reported Aseemanand’s counsel J P Sharma as telling reporters after the verdict. Those acquitted by the metropolitan court for NIA case are: Devendra Gupta, Lokesh Sharma, Swami Aseemanand alias Naba Kumar Sarkar, Bharat Mohanlal Rateshwar alias Bharat Bhai and Rajendra Chowdhary, Rashtriya Swayamsevak Sangh (RSS) worker from Rajasthan Devendra Gupta, Madhya Pradesh property dealer Lokesh Sharma, an em- ployee of a private company in Gujarat Bharat Mohanlal Rateshwar and farmer Rajender Chowdhary were also among the acquitted. Chowdhary is also from Madhya Pradesh. All the five men were present in the court on 16th April. The case was initially investigated by the local police and the case was transferred to the Central Bureau Of Investigation (CBI), which filed a charge sheet. Subse- quently, the National Investigation Agency (NIA) took over the case in 2011. Ten persons allegedly belonging to right-wing organisations were named as accused in the case. However, only five of them were arrested and faced trial in the case. Two other accused — Sandeep v Dange and Ramchandra Kalsangra — are absconding while another accused Sunil Joshi died. Investigations were continu- ing against two other accused. A total of 226 witnesses were examined during the trial and as many as 411 doc- uments were exhibited. Swami Aseemanand and Bharat Mohanlal Rateshwar are out on bail while three others are lodged in the central prison in Hyderabad under judicial remand.Page 38

The CourtroomThe circumstances as followsThe country’s top anti-terror body can file an appeal against the acquittal of the accused before the high court. Thefamily members of the victims can also approach the high court appealing against their acquittal. “We will examine thecourt judgment after we get a copy of the same and decide further course of action,” an NIA official was quoted as saying bynews agency ANIMeanwhile, police sounded an alert in Hyderabad following the judgement and beefed up security in the communallysensitive old city. More than 3,000 policemen and personnel of paramilitary forces were deployed. Deputy Commis-sioner of Police v Satyanarayana said police would keep a close watch on the movement of people at sensitive placesthrough CCTV cameras. He said the police would deal firmly with any attempt to disturb law and order.Majlis-e-Ittehadul Muslimeen President Asaduddin Owaisi said justice has not been done and that it was a “maliciousand biased” prosecution done by NIA. “NIA did not deliberately pursue the case. When the accused got the bail, NIA did notappeal seeking cancellation of bail within the mandatory period of 90 days. This itself shows the prosecution was so biased,” theMember of Parliament from Hyderabad said. “I blame it entirely on the Narendra Modi government and NIA for failing tobring the accused to book and let the criminal off. It is a failure of the Modi government,” he said.The Mecca Masjid blast adjacent to the historic Charminar on May 18, 2007, during Friday prayers, also injured 58others. Five more were killed in police firing in violence that followed the blast. The Hyderabad Police handled theprobe initially and suspected Harkat-ul-Jihad-e-Islami (HuJI), a Pakistan-based terrorist group, to be behind the MeccaMasjid blast. More than 90 men – unofficial figures put it at more than 200 – were picked up for interrogation and 21 ofthem were charge-sheeted.The police blamed Bilal, linked to HuJI, as the mastermind behind the terror attack. He was later killed in a shoot-out.After a prolonged trial, the Nampally criminal court acquitted all the accused on January 1, 2009, for lack of evidence.The Central Bureau of Investigation, which took over the case, and NIA charged 10 people after interrogating 226 wit-nesses. NIA filed three chargesheets in the Mecca Masjid blast case and slapped various provisions of the Indian PenalCode, explosives act and Unlawful Activities (Prevention) Act on the accused.The accused are related to radical Hindu organization Abhinav Bharat, whose members allegedly have ties to RSS.CBI filed a charge sheet against Gupta and Sharma, who were part of the group led by former RSS pracharak SunilJoshi. NIA took over from CBI in 2011 and all the cases involving the alleged right-wing workers were handed over tothe agency, which filed a supplementary chargesheet against Aseemanand in the case.Ten people — Gupta, Sharma, Joshi, Aseemanand, Rateshwar, Chowdhary, former RSS pracharak Sandeep Dange, anelectrician and RSS activist Ramachandra Kalsangra, Tejram Parmar and Amit Chouhan — were named as accused inthe Mecca Masjid blast case. Dange, Kalsangra, Parmar and Chowhan all belong to Madhya Pradesh.Only five of them — Gupta, Sharma, Aseemanand, Rateshwar and Chowdhary — were arrested and faced trial in thecase. A court in Rajasthan sentenced Gupta and another convict to life in jail in March 2017 in the Ajmer Dargah blastcase.Two other accused — Dange and Kalsangra — are absconding and Joshi was shot dead by three unidentified gunmenon December 29, 2007, near his house in Madhya Pradesh’s Dewas in during the course of the investigation in MeccaMasjid blast case.The investigation against Parmar and Chouhan is still continuing. Aseemanand and Rateshwar were already out onbail and three other accused are in Hyderabad’s central prison under judicial remand.JudgementSpecial court acquits Aseemanand and four others after 11 years. Aseemanand had in December, 2011 in his confes-sional statement before a magistrate in Delhi’s Tis Hazari court owned up to planning terror attacks on Ajmer Sharif,Mecca Masjid and Malegaon blast but later retracted from his statement.In his confessional statement, Aseemanand had said he and other Hindu activists were involved in bombings at Mus-lims religious places because they want to answer every islamist terror act with “a bomb for bomb” policy. Page 39

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