Libertatem Magazine - Issue 38 [March 2018]

EDITION 38 MARCH 2018LIBERTATEM MAGAZINE www.libertatemmagazine.com Cover StoryLoot and Run: Nirav Modi and Mallya Modus-Operandi to dupe Banks Featured Story Lok Sabha Passes Bill To Raise Salaries Of High Court And Supreme Court Judges

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 38 - March 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 March 2018 Volume 4 Number 3 Edition 38Cover StoryLoot and Run: Nirav Modi and Mallya Modus-Operandi to dupe Banks (p.4)Featured Story 22Lok Sabha Passes Bill To Raise Salaries Of High Court AndSupreme Court Judges (p.7)Legal News StoriesTwenty AAP MLAs Disqualified For Holding Office Of Profit (p.8)The CourtroomLawyers in Calcutta renew week long boycott (p.12)Karti Chidambaram In Cbi Custody In Money Laundering Case (p.12)Supreme Court Of India: Right To Die With Dignity Is A Fundamental Right (p.13)Petition In SC For Declaring Polygamy, Nikah-Halala Unconstitutional (p.15)Live-Streaming of Court Proceedings (p.16)Notice Issued To TRAI for Sudden Stoppage of Aircel Services by Madras HC (p.16)Question of Death Penalty? (p.17)89% of the cases pending trial under POCSO Act (p.18)Farmers scraps illegal land acquisition in Haryana, slams Hooda government (p.19)SC sets 6 months deadline to for 2G probes (p.19)Madras HC Grants Parole To Coimbatore Blast Case Lifer (p.21)Daler Mehendi found guilty on immigration scandal case (p.22)Freedom to Marry from External Interference (p.23)19 © 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 38Loot and Run: Nirav Modiand Mallya Modus-Operandi to dupe Banks By Vaibhav Kumar The economy of the country is going through a tough phase trying to recoup from the disruptions caused by demonetisation and the GST rollout. While the recurrent impact of these structural reforms appears to wean, the difficulties have been exaggerated by the growing Non-Performing Assets (NPAs) of the Public Sector Banks. The government has already pumped in more than ₹ 80,000 crores of the taxpayers’ money to make good their losses. Every time a new fraud or NPA scam surfaces, the hollow promises of politicians, bureau- crats and tax officials for plugging the systematic loopholes emerge. But the recent Nirav Modi fraud amount- ing to a whooping sum of ₹11,400 crores for the Public Sector Banks has exposed the truth. The Diamond Merchant duped the banks through such a crude form of fraud that the entire nation is in utter disbelief and shock. It depicts the failure of banking agencies, tax investigation agencies and RBI supervision. What adds salt to the wounds of the common man is the fact that he has clandestinely fled away from the country and is now untraceable by the government. The similarities with which the multi-crore fraudsters are able to escapePage 4

Cover Storybe it Vijay Mallya or Nirav Modi mocks at the political will of the ruling Modi dispensation to bring culpritsto book. It has become a settled practise to loot the common man’s savings stashed in the public sector banksand flew overseas to perpetually escape prosecution from the legal system.Modus Operandi for FraudThe scam like the one which was perpetuated by Nirav Modi tends to exploit the loopholes in the institution-al mechanism of the banks. Nirav Modi was able to defraud the Public Sector Banks for more than Rs.11,000crores through the deadly mix of bribery and crony capitalism. He took loans on account of the false Lettersof Understandings (LOUs). The interesting feature of the scam is that multiple loans were forwarded by thebanks on account of the same LOUs which wer not genuine. The fraud came to light when the culprit onceagain approached the Punjab National Bank (PNB) for another loan, but the new official refused to honourthe LoU and scrutinised the records. The skeletons came tumbling out of the cupboard and it was learnt thatthis modus operandi was being used since 2011. There are also allegations that he duped when franchises ofthe brand Geetanjali and garnered crores in the process. He is even accused of selling duplicate diamondsat exorbitant prices and blackmailing the whistle-blowers to keep their mouth shut. His close aide in themisdemeanour was his uncle Mehul Choksi who also duped the banks through an intricate web of corruptofficials. Police has also arrested two bank officials from the Mumbai branch including one deputy managerwho honoured the LOUs. What is more ironic is the glitz and glamour with which Nirav Modi used to livelife. Partying with Bollywood celebs, politicians and bureaucrats; he was a Page 3 regular. Expensive cars, bigbungalows and showrooms at the costliest markets of the world, Nirav Modi personified a life every humanbeing can dream off. It is indeed hysteric that all that gold was just paint and luxurious life was at the cost ofthe tax payers’ money. He clandestinely fled away from the nation before the police came calling. The au-dacity of the scamster is such that he has corresponded through his counsel that he would have returned theloan amount if the bank would not have made the matter public. That claim of his is only as real as the glasscrystals he sold to his high-end clients in the name of diamonds.Institutional Failure of the Banking SystemThe spate of the massive frauds that has gripped the Indian Banking Sector truly reflected the colossal failureof the in-built checks of the systems to detect such frauds. Criminals like Nirav Modi and Vijay Mallya areable to exploit the institutional loopholes to pocket large sums illegally. The loans given in the banks are onlyextended after detailed scrutiny of the businesses, but it is true how on earth Nirav Modi was able to secureloans for seven consecutive years on a trough on account of false LOUs. The banks also have a detailed auditof any loan amount which is greater than Rs.100 crores and directors take a call on bad loans. The collusion ofthe bank officials even at the level of the directors seems imperative for amassing Rs.11,000 crores. The mal-aise of the absence of the accountability plagues the entire banking system. In spite of the fraud amountingto Rs.11,000 crores the directors and the high-ranking officials have not been arrested for their involvement.It is unimaginable to fathom that a deputy manager ranked official could commit such scam without the aidof his seniors. The directors involved in this heinous offence must be immediately arrested and prosecutedfor corruption or at least dereliction of duty. The gaps in the auditing mechanism must be removed and theReserve Bank of India (RBI) must put in place a fool proof system for the same. There is also the misuse of theSWIFT (System of Worldwide Interbank Financial Transactions) password by the banking officials to attainloans on account of fake foreign guarantees. Such glaring errors reduces the entire system to mockery.Adverse Repercussions of Bank FraudsThe main effect of the Banking Frauds is the loss of the money by the government and huge embezzlement offunds out of the nation. The government will now have to make good the loss and will re-capitalise the banksout of the taxpayers’ money. The rising taxes, cesses and user charges for tolls and public amenities are directresults of such frauds. Due to the bad health of the banks, the recruitment of the new officers and subordinatestaff is adversely hampered which reduced the public employment opportunities. It is indeed ironic that onone hand the population of the nation goes on increasing, but on the other hand, the number of new employ-ees are being reduced which results in unrealistic completion for each post like more than 10 lakh aspirantsfor mere 1200 posts. What is even more mind boggling is that the directors and senior management officialsgo scot free after embezzlement public money.The erosion of the public confidence in the banks is senior adverse effect. The money looted by dacoits likeNirav Modi, Vijay Mallya, etc. is public money and is constituted through mobilisation of the savings ofcrores of middle and lower middle class families throughout their lives. The famous life that the common Page 5

Libertatem Magazine - Edition 38 man saves his savings into the bank account and the businessmen splurges the same with impunity hols good. The paralysis of the entire system to detect such scams is threatening and calls for a complete overhaul of the system with necessary changes to protect the banks from such unscrupulous frauds. Another disas- trous effect is the loss of employment for thousands of employees of the Geetanjali Diamonds who are now rendered jobless, due to government’s failure to detect frauds in time. Lack of Political Will Notwithstanding the assurances of the Finance Ministry that the culprits will be brought to book, the truth is that the present dispensation has failed curbing the bank frauds. Vijay Mallya was allowed to escape and he remains an absconder for more than a year now. Similarly, Nirav Modi was allowed to leave India and is now untraceable by the government. The fact that he was photographed with PM Narendra Modi about a month ago at the World Economic Forum’s Davos Meet casts doubts on the integrity of the ruling dispensa- tion. The whole world acknowledges the undisputed stature of Narendra Modi was a global leader with un- precedented rapport with PMs of other nations. But that rapport falls flat in front of goons like Vijay Mallya who continue to mock at the India’s legal system by opening residing in United Kingdom without being ex- tradited to India. The government has not been able to secure his extradition in spite of lapse of more than a year of him being recognised as an absconder in India. The investigation raids and confiscation of property in the Nirav Modi case by the governmental agencies is laudable, but it appears to be more of a damage control as he has already escaped the clutches of law. Even some of the news channels have been far more proactive in their investigation against Nirav Modi than the Indian government. It appears that the government must take a lesson or two from them in criminal investigation. The absence of accountability is evident in the banking sector and the government has failed to bring the real culprits to book. Though the present dispensation blames the UPA government for the frauds, but the truth is that the Nirav Modi case has revealed the true colours of this government as well. The fraud continued well into 2017 which is more than three years since the government has taken oath. The mantra of “Naa Khaunga, Naa Khanedoga” has been violated with impunity. It is really sad to know that on one hand more than 12 thousand farmers commit suicide in India every year due to inability to repay a loan of mere Rs.1 or 2 lakh, while Nirav Modi is allowed to go scot-free even after embezzling Rs.11,000 crores. Is the life of the farmer of no sanctity for the nation or is the system only concerned about the high and mighty? Though the Constitu- tion grants sovereignty to the people of India, but the real sovereign are scamsters like Nirav Modi and Vijay Mallya who continue the live the lives of luxury while avoiding the grasp of law. The present case is also vital because a number of whistle blowers has now surfaced who have even com- plained about the fraud in 2016, but no action was taken by the government official. The corrupt bureaucrats and directors must be arrested and prosecuted for their involvement in the crime. The people of India want the government to rise to the occasion and expedite the investigation to bring the culprits to book as soon as possible. Introspection of the System – Need of the Hour The Nirav Modi case truly presents a great opportunity for the baking system to conduct through introspec- tion and plug the loophole. If the directors of the banks drawing a salary of lakhs of rupees per month are unable to detect senior frauds, they must be shown the door. A new and comprehensive legislation must be enacted to cover the malaise of baking frauds with in-built checks, robust vigilance and speedy investigation. Stringent punishment amounting to life imprisonment must be given to the looters of the public money. The bureaucrats and politicians involved must also face the music and special courts could be established for the same. The government must perform its constitutional obligation to uphold the law of the land and must locate Nirav Modi and extradite him. The looters must not be allowed to run out of the country in future cases dip- lomatic efforts at the highest levels must be initiated to ensure their speedy return. All others involved in the scam like Vipul Ambani and Mehul Choksy must be prosecuted at the earliest. It is important that the faith of the public in the banks is restored through stringent punishments and confiscation of property. Only if the criminals like Vijay Mallya and Nirav Modi be brought to book, that the dictum of “Whose so ever high you are, the law is above you” be proved true.Page 6

Featured Story Lok Sabha Passes Bill To Raise Salaries Of High Court And Supreme Court Judges By Debajyoti SahaTHE HIGH COURT AND SUPREME COURT JUDGES (SALARIES AND CONDITIONS OF SERVICE)AMENDMENT BILL, 2017On 4th January, 2018, the Lok Sabha passed a Bill (The High Court and Supreme Court Judges (Salaries andConditions of Service) Amendment Bill, 2017) introducing a hike in salaries of the High Court and the Su-preme Court judges. The Bill is now pending in Rajya Sabha. Once the bill becomes a law, the Chief Justice ofIndia will get a salary of Rupees 2.80 lakhs instead of the prevailing one lakh. The judges of the High Courtwill get Rupees 2.25 lakhs per month instead of the prevailing 80,000. The salary hike is in consonance withthe recommendations of the 7th Pay Commission and will have a retrospective effect from 1st January, 2016,in case the Bill is passed. The Bill seeks to amend the High Court Judges (Salaries and Conditions of Service)Act, 1954 and Supreme Court Judges (Salaries and Conditions of Service) Act, 1958. The Bill also proposes ahike in the House Rent Allowance of the High and Supreme Court judges with effect from 1st July, 2017. Fur-ther, the Bill seeks to amend sumptuary allowances retrospectively from 22nd September, 2017.THE NEED FOR HIKE IN SALARIESThe Bill is in consonance with the plea made by Former Chief Justice of India, Hon’ble Justice TS Thakur in2016, requesting the government to raise the salary of the High Court and Supreme Court judges. The hikein salaries will bring the pay scale of the judges on par with the bureaucrats. The Supreme Court is currentlyhaving 25 judges instead of 31 and the High Courts are having 682 out of 1079 judges. This move will alsobenefit 2500 retired judges. On 31st January, 2018, the President of India gave his assent to the bill.The need to increase the salaries, allowances and pension of the Judges of the Supreme Court and the HighCourts has been necessitated because of the increase in the salaries, allowances and pensions of the CentralGovernment employees on acceptance of the recommendations of the Seventh Central Pay Commission bythe Government.KEY HIGHLIGHTS OF THE BILLThe High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2017 seeksto revise the salaries of the Judges with effect from the 1st day of January, 2016, as follows:—Chief Justice of India — from Rs. 1,00,000/- per month to Rs. 2,80,000/- per monthJudges of Supreme Court — from Rs. 90,000/- per month to Rs. 2,50,000/- per monthChief Justice of High Court — from Rs. 90,000/- per month to Rs. 2,50,000/- per monthJudges of the High Court — from Rs. 80,000/- per month to Rs. 2,25,000/- per month.Based on the recommendations of the Seventh Central Pay Commission, the Central Government has decidedto grant additional quantum of pension and family pension with reference to the age of the Central Govern-ment pensioner and family pensioner. On the same analogy, it has been decided to extend similar benefits toall retired Judges.LATERAL CONSEQUENCESThe Bill, if enacted and brought into operation, will involve an additional expenditure of approximately Rs.20 crore out of which a recurring expenditure of Rs. 12 crore per annum for payment of salary and Rs. 8 croreas non-recurring expenditure towards arrears of salaries, pension and family pension from the ConsolidatedFund of India.Whether the Bill is a constructive move aimed at empowering the judiciary and ensuring equity in their payor an exaggerated tool that provides more to a Judge than what the people of the country can afford- the an-swer is not simple and straight. Herein lies the scope for independent perspectives. Page 7

Libertatem Magazine - Edition 38TDHwoiselqdnuitnayglAiOfAiefPfdicMFeLoOAr sf Profit By Debajyoti Saha THE DISQUALIFICATION On 21st January, 2018, the President of India confirmed the disqualification of 20 AAP MLAs on the recommen- dation of the Election Commission. This was the result of a petition filed against them by a young lawyer in 2015, alleging that they were holding “office of profit” with the Government as all of them were Parliament Secretaries. POST OF ‘PARLIAMENTARY SECRETARY’ CONSTITUTES OFFICE OF PROFIT? The question of whether the post of a ‘Parliamentary Secretary’ constitutes an ‘office of profit’ or not is to be decided judiciously. As a Parliamentary Secretary assists a Minister, the office usually comes with perks as well as a measure of political influence. Hence, it would ideally constitute an “office of profit”. But in a notification confirming their appointment, it was stated by the Government of India that they would not be given any kind of perks or remu- neration by the Government. Nevertheless, on 19th January 2018, the Election Commission (EC) had written to the President asking him to disqualify the 20 AAP MLAs on the grounds that they held offices of profit while occupying the post of Parliamentary Secretaries between March 13, 2015 and September 8, 2016.Page 8

News StoryTHE DECISIONThe President has held in favour of the EC and passed a 120 page order disqualifying 20 MLAs. The MLAs who havebeen axed are Alka Lamba, Adarsh Shastri, Sanjeev Jha, Rajesh Gupta, Kailash Gehlot, Vijendra Garg, Praveen Ku-mar, Sharad Kumar, Madan Lal Khufiya, Shiv Charan Goyal, Sarita Singh, Naresh Yadav, Rajesh Rishi, Anil Kumar,Som Dutt, Avtar Singh, Sukhvir Singh Dala, Manoj Kumar and Nitin Tyagi.“The appointment of the respondent MLAs as Parliamentary Secretaries by the GNCTD bypasses and frustrates theobjective sought to be achieved by Section 15(1)(a) of the The Government Of National Capital Territory Of DelhiAct, 1991 and is also against the principle of legislative oversight of the Government which is the basic tenet of Par-liamentary form of Democracy,” the EC said in its exhaustive recommendation to the President, which was acceptedby the latter.PRECEDING CIRCUMSTANCES AND RESULTING CONSEQUENCESAll the members of the AAP were enraged by the hasty decision taken by the President of India. They were tryingto hold a meeting with the President in regard to this matter but their efforts could not materialise due to the Presi-dent’s busy schedule. Earlier attempts were made by the Delhi Chief Minister to exclude the office of Parliament Sec-retary from the ambit of “Office of Profit” but they were not successful. In response, it was alleged by the MLAs thatthe ruling Central Government is misusing the Constitutional machineries in order to win the upcoming electionsin Delhi. All the 20 AAP MLAs had moved the Delhi High Court challenging the EC’s recommendation but JusticeRekha Palli had refused to pass any interim order.The Congress party members alleged that AAP was being helped by BJP and the Election Commission as the deci-sion was delayed by 3 weeks. If the MLAs would have been disqualified before December 22, they would have beenineligible for voting in the Rajya Sabha elections. However, this development will not affect the AAP’s position inDelhi Assembly as it has already 66 out of 70 seats in the same. But the BJP and the Congress parties have demandedresignation from Arvind Kejriwal on moral grounds.The Constitutional experts have stated that the Courts have the power to set aside the recommendations of the Elec-tion Commission. In case they are not set aside, fresh elections are to be held in the next six months. The recommen-dation can be subjected to legal scrutiny.The decision of the High Court is greatly awaited as it is going to make a breakthrough in the jurisprudence of theconcept of “Office of Profit”. Though the Government has given criteria to define the same, this is a unique situationwhere the President has allegedly used his power in haste and delivered an incorrect decision. Page 9

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

urtroom

Libertatem Magazine - Edition 38Lawyers in Calcutta renewweek long boycott Facts: The facts involved the resolution adopted by the Bar Association of the Calcutta High Court calling all lawyers to cease their work till 05.03.2018. The resolution was adopted in the wake of the following events: The members of the Bar Association, Bar Library Club and Incorporated Law Society presented their concern to the Governor and the representatives about the vacancies in the High Court of Calcutta. According to the reso- lution, the representatives of the Governor in response assured the members of the three organizations that their concerns are duly addressed to the Hon’ Minister of Law and Justice and would be discussed with the Hon’ Chief Justice of India. The members of the three organizations passed a resolution to cease all the judicial working till the 05.03.2018. The resolution was passed to mark protest against the authority for failing to take appropriate steps to address the grievances. Issues: The void in the Indian Judicial System caused due to the vacancies prevalent in the Courts. Outcome: The resolution marks the unquestionable commitment of the members of the legal fraternity to take a strong stand against the lackadaisical attitude of the appropriate authority to speed up the procedure of appointing judges in different courts. The pending vacancies do not only increase the pendency of the cases but simulta- neously delays justice. In India, there are 403 vacant positions in the total 24 High Courts as on 01.02.2018. The numbers itself presents the state of justice delivery system in India. The members of the three organizations took a bold step in initiating a step to present their displeasure towards the present state of affairs. The decision to cease work is a collective way of protest for a greater good. It is unde- niable that it would not affect the citizens, but a hardline approach had been felt to pressurize the government and appropriate authorities to implement corrective measures. The members too have urged the Bar Council of different States to join hands and show solidarity towards the protest. There is no High Court in the country that does not face the challenge of long pending judicial pendency. This way the legal fraternity would create a nationwide consciousness. Judicial vacancies deprive the citizens to seek timely justice. There is a significant number of population lan- guishing in jails awaiting for their trial. The problem of undertrial prisoners is the biggest dark spot to the Indi- an Judiciary causing overcrowding in jails. Moreover, it violates their fundamental rights. The Supreme Court has laid down guidelines to protect the undertrials, but unavailability of judges deteriorates the already preva- lent sad state of affairs.Karti Chidambaram In CBI CustodyIn Money Laundering Case Karti Chidambaram has been placed in CBI custody after he was arrested by police at Chennai airport in a mon- ey laundering case. It has been alleged that Karti Chidambaram used his position of influence to get approval for INX Media allowing them increased foreign direct investment from the finance ministry. The said increased foreign direct investment was illegal as it breached the basic condition set by the government.Page 12

The CourtroomFactsINX media is owned by Indrani and Peter Mukherjea. INX Media sought approval of foreign investment fromForeign Investment Promotion Board (FIPB) for increasing their business outreach of broadcasting, managing,creating, operating various tv channels including Hindi entertainment, multiple vernacular entertainment chan-nels. The company also mentioned their intention to make a downstream financial investment to the extent of26% of the issued and outstanding equity share capital of M/s. INX News Private Limited. FIPB sanctioned theforeign investment of up to 4.62 crores but did not approve the downward financial investment by INX MediaPrivate Limited in INX News Private Limited. INX Media made a downstream investment of 26% disregardingthe directive issued by FIPB and violating the condition of foreign investment.In a statement given by Indrani and Peter Mukerhjea under section 164 of Cr.P.C, it was revealed that they hadmet with the then Finance Minister P.Chidambaram in 2007. P Chidambaram had told them to see his son whocould help them avoid a tax probe and help them in getting excess funding approved. FIR was lodged by CBI inMay last year claiming irregularities in clearance issued to INX Media by FIPB for receiving funds up to ru-pees 305 crores. Moreover, FIR also alleges Karti Chidambaram of receiving 10 lakh rupees through a companyowned indirectly by him and for influencing government servants at FIPB and finance ministry to get approvalfor increased funding. Furthermore, FIR also notes a series of invoices amounting to a total of rupees 3.5 croresraised by other companies in which are directly or indirectly owned by Karti Chidambaram.Karti Chidambaram presented himself for interrogation to CBI when summoned on 23 and 27 August 2017. Hefurther appeared in front of CBI on 18 January under protest. He refused to visit Enforcement Directorate(ED) on2nd February citing that his interlocutory application is pending before the Apex Court.CBI conducted extensive raids on the property owned by Karti Chidambaram on 28 February and arrested himon 1 March 2017 in Chennai from where he was transferred to CBI custody in New Delhi. CA handling Karti Chi-dambaram’s finances is under custody of ED.Charges1. Can the owners of INX Media and Karti Chidambaram be held liable for criminal conspiracy?2. Does act of Karti Chidambaram amounts to money laundering?CBI questioned him for 5 days and on 6th March, the court extended his custody by 3 days. Former FinanceMinister P. Chidambaram may also be questioned as the case progresses. ED has registered a case of moneylaundering against junior Chidambaram. Supreme Court transferred his application for cancelling summonsissued to him by ED to Delhi High Court. On 9th March Delhi High Court granted him immunity from arrestby ED till 20th March and enhanced his custody with CBI for 3 more days. Moreover, the court also added thatKarti Chidambaram cannot be arrested by ED till next date of hearing even if he is granted bail in corruption caselodged against him by CBI. Karti Chidambaram says that all this is nothing but just political vendetta. Congressspokesperson is of the view is that this is a classic tactic of BJP to divert the nation’s attention from PNB scamwhich happened under BJP’s rule.Learning Of The CaseA statement under section 164 of Criminal Procedure Code is admissible as evidence.Supreme Court Of India: Right ToDie With Dignity Is A FundamentalRightCase by- A PIL filed by NGO Common Cause in 2005 seeking robust system of certification for passive euthana-sia and legal recognition for ‘living will’ in India. Page 13

Libertatem Magazine - Edition 38 Bench – The Constitution bench of Chief Justice Deepak Mishra and Justices AK Khanwilkar, DY chandrachud and ashok Bhushan. Proceedings- The court held that fundamental right to a “meaningful existence” includes a person’s choice to die without suffering. Chief Justice Misra spoke about how societal pressure and fear of criminal liability by relatives and medical doctors ultimately led to the suffering and the undignified death of the patient. The court said it was time to dispense with such shared suffering and sense of guilt and face the reality. Doctors who attended on the termi- nally ill were under pressure and dithered in letting the patient go, apprehending criminal liability and fear of being drawn into the “vortex” of a possible family struggle for inheritance. Chief Justice Misra, in a common judgment with Justice A.M. Khanwilkar, said it was time to “alleviate the ag- ony of an individual” and stand by his right to a dignified passing. A dignified death should follow a meaning- ful existence, the five-judge Bench agreed in a unanimous voice. Justice A.K. Sikri, in his separate opinion, said though religion, morality, philosophy, law and society shared equally strong and conflicting opinions about whether right to life included right to death, they all agreed that a person should die with dignity. Hence, the court, Justice Sikri said, was rightly in favour of the right to die with dignity. Justice Sikri said an advance directive or living will from a patient to stop medical treatment at a particular stage — “particularly when he is brain dead or clinically dead or not revivable” — quelled apprehensions of future regret for rela- tives and criminal action against doctors. The Chief Justice’s judgment includes specific guidelines to test the validity of a living will, by whom it should be certified, when and how it should come into effect, etc. The guidelines also cover a situation where there is no living will and how to approach a plea for passive euthanasia. In a separate opinion, Justice Chandrachud observed that modern medical science should balance its quest to prolong life with need to provide patients quality of life. One was meaningless without the other, he said. The issue of death and when to die transcended the boundaries of law, but the court had intervened because it also concerned the liberty and autonomy of the individual, he said. Justice Chandrachud read from his judgment that the sanctity of life included the dignity and autonomy of the individual. He said the search for a meaningful existence, the pursuit of happiness included the exercise of free will. “Free will includes the right of a person to refuse medical treatment,” he said. A person need not give any reasons nor is he answerable to any authority on why he should write an advanced directive. But the judge held that active euthanasia is unlawful. For this reason, he said the reasons given by a two-judge Bench of the Supreme Court in the Aruna Shanbaug case, allowing passive euthanasia,were “flawed” as the convoluted procedure to get a go-ahead for passive euthanasia made the dignity of a dying person dependent on the whims and will of third parties. “To deprive a person dignity at the end of life is to deprive him of a meaningful existence,” Justice Chandrachud read from his opinion he shared with Justice Ashok Bhushan. Judgement- A five Judge Bench of Supreme Court in Gian Kaur v. State of Punjab held both euthanasia and assisted suicide not lawful in India and overruled the two Judge Bench decision in P. Rathinam v. Union of India. The Court held that the right to life under Article 21 of the Constitution does not include the right to die. But later in Aruna ramchandra Shanbaug v. Union of India the Supreme Court held that passive euthanasia can be allowed under exceptional circumstances under the strict monitoring of the Court. The difference between ‘active’ and passive’ euthanasia is that in active euthanasia something is done to end the patient’s life while in passive eu- thanasia, something is not done that would have preserved the patient’s life.Page 14

The CourtroomAfter Triple Talaq, Petition In SC ForDeclaring Polygamy, Nikah-HalalaUnconstitutionalFacts-A petition has been filed in the Supreme Court under article 32 to declare Section 2 of the Muslim Personal Law(Shariat) Application Act, 1937, Unconstitutional and Violative of Articles 14, 15 and 21 of the Constitutioninsofar as it seeks to recognize and validate the practice of Polygamy and Nikah-Halala. The plea has been filedby one Advocate Ashwini Kumar Updahyaya of Ghaziabad claiming that the injury caused to the women aspractice of Triple-Talaq, Polygamy and Nikah-Halala is violative of Articles 14, 15 and 21 of the Constitutionand injurious to public order, morality and health. However, police does not lodge FIR under Sections 498A,494 and 375 of the IPC respectively for these offences.Proceedings-The petitioner has alleged that once a Muslim woman has been divorced, her husband is not permitted totake her back even if he had pronounced Talaq under influence of any intoxicant, unless his wife undergoesNikah-Halala, which involves her marriage with another man, who subsequently divorces her so that her pre-vious husband can re-marry her. “This unfortunate practice was highlighted by the media in the case of NagmaBibi of Orissa, whose husband divorced her in the spur of the moment in a drunken state and wanted her backthe next morning, when he realized that he had committed a mistake. Unfortunately, she was prevented by hercommunity’s religious leaders, who forcibly sent her with three children to her father’s house suggesting thatshe will have to undergo Nikah-Halala before she can re-unite with her husband.” The plea stated.The petitioner has referred to the Sarla Mudgal case alleging that bigamous marriage has been made punish-able amongst Christians by the Christian Marriage Act, 1872, (No. XV of 1872), amongst Parsis by the ParsiMarriage Act, 1936 (No. III of 1936), and amongst Hindus, Buddhists, Sikhs and Jains by the Hindu MarriageAct, 1955 (No. XXV of 1955). However, Dissolution of Muslim Marriages Act, 1939 does not secure for Muslimwomen the protection from bigamy, which has been statutorily secured for women belonging to other reli-gion. “The citizens, who follow religion other than Islam traditionally, practiced polygamy, but the same wasprohibited not only because laws dealing with marriage are not a part of religion, but also because the law hasto change with time and ensure a life of dignity unmarred by discrimination on the basis of gender.” Petitionalleged“The Constitution has primacy over the Common Law and Common Law has primacy over Personal Laws. So, Indiadoesn’t need another personal law on talaq, polygamy and Halala,” the petition stated. The petitioner has further sub-mitted that the executive has not taken any steps to prohibit triple talaq, polygamy and nikah-halala and de-clare them an offence under the Indian Penal Code even as the Supreme Court had on 22 August 2017 declaredtriple talaq unconstitutional while also observing that practices permitted or not prohibited by religion do notbecome a religious practice or a positive tenet of the religion and a sinful practice does not acquire the sanctionof religion merely because it is practiced since long time.The last proceedings-Thus the petitioner has sought directions for the Central Government to take appropriate action against theperson, institution and organizations, running Sharia Courts to decide the cases related to Marriage, Divorce,Inheritance and Succession or other similar matters. It has further sought to declare that provisions of the IPCare applicable on all Indian Citizens and Triple-Talaq is a cruelty under Section 498A of the IPC, Nikah-Halalais Rape under Section 375 of the IPC, and Polygamy is an offence under Section 494 of the IPC.The petitioner in addition to it has also prayed before the Court to direct the Law Commission of India to con-sider the Civil Laws of developed countries, particularly the Civil Law of France, Japan and China and publishits Report in spirit of Article 44 of the Constitution within three months Page 15

Libertatem Magazine - Edition 38Live-Streaming of CourtProceedings Facts: The access to information is the nodal principle for creating transparency in the democratic functioning of any institution. The Right to Information was an exceptional piece of legislation to make information accessible to the citizens. The Parliamentary proceedings are duly recorded and live streamed for the citizens. The objective behind it is to empower citizens with adequate information to know the opinions deliberated upon several issues of public importance and understand the law-making process. The Writ Petition recently filed in the Hon’ Supreme Court of India by Senior Advocate Indira Jaising moots upon the question of live-streaming or video-recording of matters listed in the Hon’ Supreme Court for ordinary citi- zens. The petitioner has filed the Petition with the objective to make the institution of Judiciary more transparent and retain the public trust and confidence in it. The Petitioner has initiated the online petition of “change.org” petition with the similar objective to gain public support for the same. There are certain important highlights for live-streaming of the court proceedings: 1. The live –streaming of the proceedings shall be of the cases of Constitutional or National importance; 2. No violation of privacy as family/criminal/other related matters where there are countervailing interests of privacy would be in camera; 3. It would empower and provide access to ordinary citizens; 4. Live streaming would be an informative mechanism for citizens to also understand the justice delivery process; 5. Criticisms and appreciations of judgments would be more informed as the citizens would be able to under- stand the basis/ratio of the decision; 6. Courts would be accessible for young lawyers and law students to learn and understand the court proceedings helping them to develop better as a lawyer; 7. It would instil a sense of accountability to the Judges and create a more transparent institution; 8. Till the infrastructure is created, proceedings can be uploaded on the YouTube channel which will be cost-ef- fective. Issues: Whether is it important to live-stream or video recording of the matters before the Hon’ Supreme Court of India? Feasibility of the Idea: The bid to make judiciary more transparent has been gaining momentum since the Press Conference held by the four senior most judges of the Apex Court. The Supreme Court last year directed the installation of CCTV cam- eras in the trial courts and tribunals of each State. The very same endeavour has been taken forward by the peti- tioner to apply the same principle of transparency to the Supreme Court. The petitioner has relied upon making live-streaming for matters that have constitutional/national importance as these matters are likely to affect the citi- zens at large. Also, to address the issue of violation of privacy the petition has been very unambiguous to restrict it whenever there are countervailing interests of privacy such as in matters of family dispute, criminal, etc.Notice Issued To TRAI and Gov-ernment for Sudden Stoppageof Aircel Services by MadrasHigh CourtPage 16

The CourtroomMadras High Court issued a notice to Telecom Regulatory Authority of India(TRAI) and Government for sud-denly preventing Aircel from operating in South India. This move comes after a PILwas herd in Madras HighCourt requesting the court to issue direction for the resumption of Aircel telecom services in Tamil Nadu as soonas possible.FactsG.Saravanakumar the petitioner in above mentioned Public Interest Litigation approached Madras High Courtrequesting the court to issue directions to resume the services of Aircel in Tamil Nadu. Petitioner had been aloyal and satisfied customer of Aircel since past 10 years. On 21st February with any prior information services ofAircel came to a sudden standstill across Chennai. He later came across a statement released by the head of Aircelinforming him that that out of nine thousand mobile phone network towers owned by firms only two thousandand five hundred were operational and working. Remaining six thousand five hundred could not be used inspite of being in working capacity due to default in the payment of rent by the company. This led to widespreaddisruption in services of Aircel across the State.The common folks of the state suffered immensely as disruption of Aircel services made it very difficult for themto avail welfare and government schemes such as LPG connections as mobile numbers listed in such serviceswere not working. Petitioner submitted that more than 25 lakh subscribers have been affected in Chennai bythe sudden stoppage of telecom and data services by the cellular company. This is highly unethical and shouldhave been viewed seriously by the government and Trai. Moreover, Petitioner also submitted that around 8 lakhsubscribers of Aircel have already applied for mobile portability which could not be completed due to a suddenstoppage in services of Aircel. Sudden stoppage of Aircel services have left certain people with no other means ofconnectivity Furthermore, this move of government and TRAI have made it impossible for dissatisfied customersto port their existing numbers to another mobile operator. Despite repeated complaints and inquiries no actionhas been taken submitted the petitioner. The main issue in the above-mentioned petition is that:Is it allowed and ethical for TRAI and government to suddenly stop services of a telecom provider causing hard-ship to common people?Decision of the CaseThe court issued a notice to Trai and Government and set March 19th as the date for Trai and Government to filetheir counter reply.Question of Death Penalty?Case: Chotkau v State of U.P.Facts:The Petitioner moved a Special Leave Petition (Criminal) against the judgment delivered by the High Court ofJudicature at Allahabad, Lucknow Bench on 18.04.2016. The Petitioner was awarded with death sentence forbeing convicted under the provisions of the Indian Penal Code for the rape and murder of a 6 years old girl. TheHigh Court upheld the death penalty considering it to be the case falling under the category of the “Rarest of rarecases”. The Petitioner was guilty of raping then brutally murdering the girl which was considered to be heinousin nature. The Court deemed appropriate to award death penalty to the perpetrator. Hence, the present appeal.Issue:The question of “Death Penalty” has taken the centre-stage.Findings:The Hon’ Supreme Court of India in the appeal filed before it ordered to stay the execution of the Petitioner whohad been convicted for Rape and Murder. Page 17

Libertatem Magazine - Edition 38 Observations: The question for death penalty against the individuals convicted of rape gained nationwide consonance after the brutal rape and murder of Nirbhaya in Delhi. The Justice Verma Committee had been constituted to recommend legal reformatory changes in the penal provisions of crime against women ruled against the death penalty even in the rarest of rare cases. The rarest of rare doctrine was first held in the Bachan Singh v State of Punjab. The death penalty for the crimes against women has been held to be given in the rarest of rare case. The category of the rarest of rare cases would depend on the case to case basis. The offenders in the Nirbhaya case were awarded with the death penalty as the heinous act fall under the category of the rarest of rare case. The present case has also been ob- served under the same category considering the barbarity of the offender committing the brutal act. It is, therefore, left upon the wisdom of the Hon’ court to decide upon the issue. The issue of death penalty is ferociously debated when it comes to crimes against women. The society is divided into two sects where one side lay their foundation of imposing the harshest of the punishment as a deterrence whereas the other side believes that such deterrence would not fulfil the purpose. There are contentions to consid- er the socio-economic and psychological factors to be taken into view before sending an individual into the gal- lows. The recent State amendments in Rajasthan and Madhya Pradesh to impose death penalty against offenders convicted of rape against the girl below 12 years of age has been contentious in its approach. It is believed that our legal framework is based upon the foundation of reformation than deterrence, but the increasing number of sexual assaults against minors has been the biggest challenge that our society and justice system face, and every possible measure must be taken to check the menace and eradicate it in entirety.89% of the cases pending trialunder POCSO Act Supreme Court on Monday, March 12, asked for the Registrar Generals of the High Courts across the country to investigate the delay in trial of the cases under the Prevention of Children from Sexual Offences Act, 2012. A plea filed by advocate Alakh Alok Srivastava stated that about 89% of cases under POCSO are still pending judgment. The recent case of an eight-month-old baby left in the custody of her relatives while her parents were out and who was brutally raped by her 28 year old cousin under the influence of alcohol highlighted the plight of child rape victims who are still waiting for the verdicts on their respective cases. Currently she is being receiving treatment at AIIMS, New Delhi and on the direction of the Apex Court, two doctors who had visited her at the hospital in- formed the Court of her progress. The Delhi Legal Services Authority (DLSA) also reported to the Supreme Court that the accused is in judicial cus- tody and an interim compensation to the tune of Rs 75,000 have been paid to the victim’s family. The three judge Division Bench comprising of the Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud expressed their concern about the amount of child sexual assault cases pending under various courts of this coun- try. Advocate Srivastava drew attention to the 2016 data of National Crime Records Bureau (NCRB) which shows only 1100 cases have been disposed of out of 1,01,326 cases in that year, which is but 11% of the total cases registered under different trial courts of this country. A whopping 89% of the cases are yet to be heard by the courts. The petitioner lawyer further reiterated that the Supreme Court set some guidelines that rape cases involving children under 12 years of age should be resolved within six months from the day of lodging of the FIR. Although Advo- cate Srivastava proscribed death penalty in child rape cases the Centre disagreed with his view, stating that such actions would not bring a fruitful result to combat child sexual offences, instead cases should be judged on their individual merits. Supreme Court has heard the plea and directed the High Courts of the country under the authority of the Chief Justices of the High Courts to collect and submit the latest data on all the cases pending under POCSO Act and re- port the same to the Supreme Court Registry within the next four weeks so that a comprehensive and specific plan could be put forth for speedy trial of the said cases in special courts under the Act.Page 18

The CourtroomFarmers scraps illegal landacquisition in Haryana, slamsHooda governmentFactsIllegal acquisition of nearly 912 acres by private builders in Haryana under a land acquisition process initiated bythe Bhupinder Singh Hooda government was set aside by the Supreme Court on March 13. The court slammedthe Hooda government, saying such decisions were nothing but “fraud” on power. Ordering an inquiry by theCentral Bureau of investigation, the court directed the state and the Central governments to “recover every singlepie” and turn it over to the state government.ProceedingsThe 912 acres of land was acquired between 2004 and 2007 from three villages -- Manesar, Lakhnoula and Nau-rangpur - to set up an industrial township. After the acquisition was notified, many farmers had sold land atthrowaway prices to private builders. The land, the court said, was initially purchased for around Rs. 25 lakh peracre. But as the acquisition process progressed, prices rose to Rs. 80 lakh per acre. The land was finally purchasedby DLF Home Developers Ltd. at the rate of Rs.4.5 crore per acre.The court said that It was not a mere bonanza or a deal, but denoted quid pro quo, .But two days before the ward was to be announced in August 2007, the Hooda government cancelled the acquisi-tion.The benchThe bench of Justices AK Goel and Uday Lalit said the acquisition was “withdrawn with fraudulent intentionsafter the land was purchased by the private builders in active connivance with state functionaries”. Further, theentire acquisition proceedings were initiated with “mala fide intention, illegally and in violation of the provisionsof the Land Acquisition Act,” the court said.JudgementThe top court said records indicate that various entities, including certain “middlemen” walked away with hugeprofits. The builders and private entities “were aware that the acquisition would not go through”. Still, landhold-ers were cornered and persuaded into transactions, the court said.The court, however said the land would not be returned to the landholders who had received compensation,which was greater than the initial award. Instead, the land would be vested with the Haryana Urban DevelopmentAuthority and the Haryana Industrial Development Corporation. The builders and private entities will not be enti-tled to recover any money they paid to land owners, the court said.SC sets 6 months deadline to for2G probesFactsThe Supreme Court on March 12 set a deadline of six months for CBI and ED to complete the probe in the 2Gspectrum allocation cases and the alleged irregularities in FIPB approval to the Aircel-Maxis deal in which formerfinance minister P Chidambaram and his son Karti Chidambaram have been questioned by the agencies. Page 19

Libertatem Magazine - Edition 38 The issue of FIPB clearance in the the Aircel-Maxis deal had surfaced during the probe into the 2G spectrum related cases. Bench A bench of Justices Arun Mishra and Navin Sinha, who were annoyed by the delay in completion of probe in the 2G spectrum cases, which started in 2010, said it will “haul every officer involved the case if investigation is not completed within next six months”. Proceedings The top court said it is “very unfortunate” that investigation in the 2G cases has not been completed yet and “people of this country cannot be kept in dark in a serious and sensitive case like this”. “Why is there so much delay in completing the investigation in the 2G spectrum and ancilliary cases. Investigation was ordered by this court in 2010 and since then several orders have been passed but nothing has happened so far. Tell us, how much investigation is pending and why have you not been able to complete the probe yet,” the bench said. The apex court questioned the Centre “whether there was any invisible hand” which was delaying the investiga- tion of the case and directed that “investigation in all aspects has to be completed in the cases by next six months”. “This a very serious and sensitive case. You book everybody responsible in the case and investigation has to be completed in all aspects. We are unhappy the way things are going on as the investigation has not seen light of the day. This case is becoming like touch me not,” the bench said. Attorney General K K Venuopal said that in the main 2G spectrum case involving the former telecom minis- ter, the special court has acquitted all the accused and similarly in other related cases, the accused were either acquitted or discharged. “Only in one case, investigation is still pending and this case relates to Aircel-Maxis case involving Malaysian business tycoon T Ananda Krishnan against whom letter rogatory have been issued but being an influential person in that coun- try, we have not been able to bring him to India to face trial,” Venugopal said. He said Krishnan was not cooperating with the investigation in the case and no documents have been supplied by Malaysian government. The bench said it was not concerned about the individuals or personalities involved in the case and the Centre should file a status report in two weeks with regard to investigation done so far. The AG said the Centre will file the status report as per the courts direction and if the bench wants, then it will file the document without sealed cover notwithstanding the relationship with Malayasia government. BJP leader Subramaniam Swamy said the court had in the last hearing directed CBI and ED to file the status report with regard to investigation done in Aircel-Maxis deal case. “This status report which was to be filed in the court was unfortunately in the bedroom of one of the accused in the case,” Swamy alleged, without taking any name. The court also allowed a plea of senior advocate Anand Grover seeking to be relieved from his post as special public prosecutor in a case related to 2G spectrum case after recording words of appreciation for his efforts in the case. It put a stamp of approval on the governments decision to appoint Additional Solicitor General Tushar Mehta as special public prosecutor in place of Grover for prosecution, appeals and revision of 2G related cases and dismissed a contempt plea filed by an NGO Centre for Public Interest Litigation. On January 4 this year, the apex court had directed the Centre to file a status report on the probe being con- ducted in the Aircel-Maxis deal case. P Chidambaram was questioned by the CBI in the case on December 6, 2014, while Karti was questioned on November 19, 2014. The CBI had said in its charge sheet in the Aircel-Maxis case that Chidambaram had granted FIPB approval in March 2006 to Mauritius-based M/s Global Communication Services Holdings Ltd, a subsidiary of Maxis, owned by Ananda Krishnan, who is also an accused in the case.Page 20

The CourtroomThe CBI had claimed that M/s Global Communication Services Holdings Ltd had sought Foreign InvestementPromotion Board (FIPB) approval for 800 million USD for which only the CCEA was competent, but Chidam-baram had given approval to the firm in March 2006.However, the CBI and ED cases in the Aircel-Maxis deal could not withhold judicial scrutiny as the special 2Gcourt had in February last year discharged Dayanidhi Maran, his industrialist brother Kalanithi Maran andothers saying the alleged charges were based on “misreading of official files”, speculation and surmises of thecomplainant.Judgement-Though the court has discharged Marans and others in the case, further probe by CBI regarding FIPB approvalis still going on. Similarly, the ED is carrying out separate probe in the Aircel-Maxis deal. PTI MNL ABA SJKRKS ARCLTMoifaeCdroraims bHaCtoGrreaBntlassPtaCraolseeMadras High Court on Wednesday, 14th March granted the parole application filed by petitioner M Samsuni-sha on behalf of her husband, Mohammed Ansari, who is currently serving a life sentence for his active role inthe 1998 Coimbatore serial bomb blast case.Facts of the caseThe petitioner on her plea stated that her eldest daughter Fathima’s marriage is fixed on April 16th. Since sheis frail and old it is impossible for her to carry out all the responsibilities of the impending marriage all on herown. She will also require help with marriage expenses and related costs, a matter on which she would needher husband’s support. Beside to fulfil the various customs and traditions of the said marriage her husbandshould be granted two months parole.She further reiterated that her husband on previous occasions having been granted parole maintained the ruleof law and has shown exemplary dedication in presenting himself to the Superintendent of Police’s office andhas never violated the conditions of his parole.Parole in IndiaParole has always been an integral part of British legal system and is considered a humanitarian measure forthe reformation of prison system. It is seen as a change in perspective on the issues of human rights of prison-ers and an evolutionary shift in attitudes towards crime and criminals.The genesis of parole in Indian legal system is from the British common law reflected in Section 5(B) of thePrisons Act, 1894 which reads as follows: “Parole system means the system of releasing prisoners in Jail onparole, by suspension of their sentences in accordance with the rules for the time being in force.”Parole is not an absolute right in Indian legal system and can be denied under certain circumstances. The pris-oner has to strictly abide by the stipulated rules of his parole otherwise he is considered to be violating themand then he will be returned to his cell. A prisoner is eligible for 90 days of parole in one calendar year depend-ing on his good behaviour in prison.Decision of the judgesMadras High Court Division Bench comprising of Justices C.T. Selvam and N. Sathish Kumar decided on the Page 21

Libertatem Magazine - Edition 38 case. They conceded that there is merit in petitioner’s case and granted Mohammed Ansari a parole for 20 days starting from April 10 to 30. The judges found merit in petitioner’s contention that Mohammed Ansari is eligible for ordinary leave under Rule 22 of the Tamil Nadu Suspension of Sentence rules as he has already completed 3 years of his sentence as was indicated in the rules. The Court directed the Superintendent of Police, Central Prison, Coimbatore to provide the necessary security to the prisoner during his time of parole. The Court further reiterated that it is the responsibility of the Superinten- dent of Police to make sure that the prisoner safely returns to the prison on May 1st to continue serving his life sentence.sgDcuaaillentyrdMaonlechiamesmnedigi rfaotuinodn Punjabi popular singer Daler Mehendi has been sentenced to jail but released on bail by Patiala court, a district court under Punjab and Haryana High Court on the immigration scandal case. Facts of the case Daler Mehendi was the main accused in the 2003 immigration scandal case. Both Daler Mehendi and his brother Shamsher Mehendi were investigated by the Patiala police on the complaint filed by Bakshish Singh, a resident of Balbehra village, Patiala. Singh had filed a complaint with the Patiala sadar police station way back in 2003 al- leging that both the Mehendi brothers had promised to take him to Canada and had failed to do so even though he had paid lakhs of rupees as “passage money.” The Patiala police upon further investigations found that Bakshish Singh is not the only one who was duped by the Mehendi brothers as more than 35 other complainants came forward. The police had raided the Connaught Place office of Daler Mehendi and seized documents that were a testament to the fraud racket he and his brother were carrying out since late 90s. The investigators found that Daler Mehendi visited US for a show in 1998 where he took 10 troupe members with him. The brothers then allegedly “dropped off” three girls at San Francisco. The next year Mehendi brothers had visited the US for a show in New Jersey and this time again they “dropped off” three boys from their troupe. The police had arrested Daler Mehendi and his brother Shamsher Mehendi on charges of fraud, immigration scandal, duping people and being involved in illegal human trafficking. The singer was released on bail soon after. Court proceedings The case has been heard in the court for more than a decade. Both the Mehendi brothers were presented as accused on fraud charges and immigration scandal. The Court heard more than 25 witness testimonies during the trial. One Jaswinder Singh had testified on November 28, 2013 that the singer had taken about 1 crore rupees from him promising to help him reach US but he did not kept his promise and even failed to return the money. Daler Mehendi accompanied his lawyer Gurpreet Singh Bhasin to attend the court of Judicial Magistrate first class Judge Nidhi Saini yesterday, March 16th. He was convicted on all charges of human trafficking and fraud- ulent activities and was sentenced to two years of imprisonment. He was also fined Rs. 1000 but he managed to obtain bail and was released on bail bond yesterday. His counsel stated that they would go to higher courts to appeal against this verdict. But in the meantime, after decades of investigations and court dates, the case was finally disposed of in favour of the complainants. The Court passed the guilty verdict against the singer and sen- tenced him to two years of imprisonment.Page 22

The CourtroomFreedom to Marry fromExternal InterferenceCase: Shakti Vahini v. Union of india & Ors.Facts:The issue of violence perpetrated by the members of the Khap Panchayats in the name of honour has put fearupon the young adults to make an individual choice to marry. The infamous honour killings have been a normto restrain consenting adults from inter-caste or inter-faith marriages. The issue gained widespread attentionthrough electronic and digital media, wherein these barbaric and gruesome murders came to public focus. Tocurb the menace of honour killing and prohibit interference from the members of the Khap Panchayat into mar-riages, a petition in 2010 had been moved by the NGO Shakti Vahini in the hon’ Supreme Court of India.Recently, the Hon’ Court reserved its judgment on the issue. The Court in earlier proceedings categorically statedthat marriages of consenting adults cannot be infringed/interfered by anyone. The court in its recent observationhad taken consideration of the report filed by the Amicus Curiae Raju Ramachandran. The Court seemed deter-mine to protect the rights of the adults against hate crimes. The Court considered the recommendations whereinthe term Khap Panchayat was suggested to be replaced with Marriage Prohibition Assembly and implementrecommendations of the 242nd report of the Law Commission of India.Key Observations:1. No one can interfere when two consenting adults decide to marry.2. Protection from hate crimes (honour killings) for inter-caste and inter-faith marriages.3. Guidelines to prohibit Khap Panchayat from barring individuals from the liberty to make independent choic- es of marriage.Outcome & Social Relevance:The functioning of the non-judicial/extra-constitutional bodies have been a black spot to the constitutional de-mocracy. The hate crimes and violent extremism undertaken by these bodies not only causes infringement to theRule of Law, but also set a downward trend to the progressing minds. The interference by the Khap Panchayatsis in direct violation to individual liberty and freedom. The Court’s determination to prohibit honour killings isa welcome move, and the possibility of issuing guidelines with collective deliberations would be a benchmarkto uphold constitutional values of our country. This would open doors for judicial activism over the activitiesundertaken by extra-judicial bodies. The role of public-spirited organizations is equally commendable for socialreforms. It is hopeful that this would open wider doors to bring many more discriminatory practices under judi-cial scrutiny like “Virginity Test” carried by the members of the Kanjarbhat Community. *********** Page 23

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