Libertatem Magazine - Issue 40 [May 2018]

MAY 2018LIBERTATEMEDITION 40MAGAZINEwww.libertatemmagazine.com Cover StoryThe Trump-Kim Jong-un Meet: A RemarkableMoment towards Peace? Featured Story Walmart’s Flipkart Acquisition

LIBERTATEMLibertatem Magazine - Masthead MAGAZINE www.libertatemmagazine.com Edition 40 - May 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 May 2018 Volume 4 Number 5 Edition 40Cover StoryThe Trump-Kim Jong-un Meet: A Remarkable Moment towards Peace? (p.4)Featured StoryWalmart’s Flipkart Acquisition - An Analysis (p.8)Legal News Stories 04Calcutta High Court decides on blocking of roads for political procession (p.10)Re-establishing Diplomatic Ties between India and Libya (p.12)The Courtroom 08Supreme Court Cases (p.16)High Court and District Court Cases (p.20)10 12 2827 © 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 40The Trump-Kim Jong-unMeet: A RemarkableMoment towards Peace? By Prateek Mago June 12, 2018 might prove to be one of the historic moments when it comes to world politics, as,., Mr. Donal Trump, the President of the United States of America, and Mr. Kim Jong-un, the Supreme Leader of the Demo- cratic People’s Republic of Korea, have finally decided to meet up in Singapore, and talk face-to-face about bet- tering the lives of the North Koreans and probably, to embark on a journey towards achieving peace through, what one would call as “denuclearization” of the Korean Peninsula. It would be the first instance in the history of world politics that a North Korean leader and a sitting President of the United States are agreeing to have a formal meet. The announcement as regards to the meet was made by Mr. Trump in one of his tweets, along with the venue be- ing Singapore for the same. It of course is a neutral place from the perspective of both these States, however, at the very same time, Singapore also promises certain strategic advantages to both the nations. One of the few import- ant considerations before deciding the place would have been to choose a place located nearby to Mr Kim, other-Page 4

Cover Story-wise the counterparts might have end up projecting a weak offer as regards to the meet. Singapore even hassound diplomatic/diplomatically sound relations with North Korea since 1975, and DPRK even has an embas-sy present in Singapore. From the perspective of the United States of America, most importantly, Singaporehas stood as a trusted ally, and is also willing to provide with the modern security equipment and apparatus,apart from the flashy amenities, which is obviously going to be a very important concern during the landmarkSummit.The present article shall//is an attempt to analyse the farce discussions and talks that have taken place in thepast between North Korea and the international community, the promises that were made in the past as wellbut eventually ended up getting failed, the circumstances necessitating the need to have the upcoming Sum-mit, take-aways for both the countries from the Summit, how should the two countries go about the upcomingnegotiations, and the future repercussions that could possibly arise out of the Summit.Kim Jong-un’s Tenure and the Deceptive PromisesIt was in 2011 when Kim’s father, Kim Jong-il, passed away, and as a result of which he took the leadershipof the country. There were speculations regarding his leadership, both with respect to the positives and thenegatives that he could bring along during his tenure. It was strongly believed then that his young age, theexperience that he was carrying in his blood,and the dynamic education are the potential factors that wouldaffirmatively assist towards nation’s welfare in all avenues s. There have been reports and instances in the pastprojecting that Kim Jong-il was grooming his son as regards to the succession of the throne, being one of theimportant purposes. He used to accompany his father to inspect several military units, apparatus, facilities,etc., in addition to that, he even began assuming several high positions with responsibilities, both at a politicalas well as at a military level.His initial few years into leadership rendered all the positive speculations naïve. His impulsive actions, includ-ing declaring a state of emergency immediately after his father’s death, further consolidated the views againsthis tenure’s fruitful success. He was in his 20’s when he became the Supreme Leader of DPRK, and at that verymoment, the country was in tremendous turmoil, as on one hand, it had a rickety economy as people werenot even in the position to feed themselves properly, while on the other hand, the country was still fighting itsbattle to regain prestige and legitimate recognition from the rest of the global community by wanting to en-hance its military and nuclear capabilities. Not only this, but also that it was very unlikely at that point for theKorean people to accept a second rule of dynastic succession without displaying any protest, that too undera young leader, as leaders in the past were able to have some influence over the North-Korean populace onlybecause of their age, experience, and maturity. This, up to a great extent, could have resulted in to possiblerepercussions such as huge instability in the country, and therefore probably leading to a large number of refu-gees wanting to flee, mass defections, etc.But as we believe that a good leader is a one who has a vision in his mind, ability to work towards it and toachieve it, Kim Jog-un might just fit aptly in this definition as well. His very first speech addressed to the peo-ple of North Korea, on the day of his grandfather’s birthday, left no stone unturned in displaying his resilienceand the vision in making DPRK more strong & prosperous as per the global trends of the 21st century. He hada roadmap aimed towards strengthening his country’s military capabilities, and reforming its crippling econ-omy. He gave significant emphasis upon reunification with South Korea during his speeches back in 2012. itwas then, when he also acknowledged the pain and sufferings that the people had to experience as a result ofthe separation between the two nations for so many years. He took a pledge in regards to not letting his citi-zens die of hunger again, something which portrays his audacity to admit the mistakes that his party has madein the past years.Well, he has been able to proceed on that line of thoughts up to a great extent. Under his tenure, North Koreais at its most powerful and dominating position, in comparison to what it has been in other period. He hasimpeccably led DPRK to possess a very advanced nuclear programme, as well as a tactical military system,capable of tackling the modern warfare technologies. He has already carried out 4 nuclear tests, out of whichthe biggest and the most destructive bomb is what is believed to be of 100-150 kilotons. Apart from this, he hasnot only tried around 100 ballistic missiles, but has also tested the Intercontinental Ballistic missiles, that arecapable of reaching the mainland United States.From an economic perspective, he has obviously given significantly more attention to the economic issues than Page 5

Libertatem Magazine - Edition 40 his father and grand-father. There have been some unostentatious policy decisions introduced in order to boost up the economy. In order to avert the food crisis which the country has been facing for over two de- cades now, certain agricultural reforms were introduced, giving larger degrees of autonomy to the farmers. also, Special consideration has been given to the creation of several Special Economic Zones, in order to attract foreign investment. Even though Kim seems to be running on his plans, there is still a long way to go, as these measures By no means have been able to influence the lives of majority of its citizens. Additionally, there has been a plethora of farce promises made in the past concerning the DPRK’s intention to look out for peace. Infact, There is an entire series of events that can give us a determined pattern of promises being made, and then broken through threats. North Korea and South Korea came to an agreement in 1992, and signed the Joint Declaration as regards to the Denuclearisation of the Korean Peninsula, an obligation upon both the States not to test, manufacture, produce, receive, store, deploy, or use any kind of a nuclear weapon. Then, inn 1994 as well, the DPRK agreed to put an end to its nuclear programme in return of an aid, as a part of a deal signed with the then US President, Jimmy Carter. South Korea has been demanding peace in the region since long, still, amidst of all these deals and goodwill incidents, North Korea still continues to develop its nuclear arsenal secretly. This has led to nothing but more and more of western sanctions against the country, imposing it in a tougher position than before. In 2002 as well, the then US President, George W. Bush without any hesitation acknowledged the situation at a global level, indicating that North Korea is spending more on its defence capabilities even more than feed- ing the stomachs of its citizens. Still, that did not seem to ring any bell in the mind of the Supreme Leader. Finally when North Korea admitted to have a clandestine nu- clear programme going on, attracted the condemnation of not only the international community, but also of the International Atomic Energy Agency( IAEA). Things got out of control when North Korea decided against resolving the situation in a pragmatic manner. rather, in 2003, it withdrew its support from the Non-Proliferation Treaty. Since then, there have been several instances of DPRK accepting to have nuclear weapons, and then on very same lines promising to abandon the same as well. However, the reality is well before us to be scrutinized. The Upcoming Summit The upcoming summit between the two head of the States on June 12 certainly raises plenty of questions, the primary one being regards to feasiblity for the two coun- tries to have a meeting, provided the fact that it was not long ago when Kim Jong-un threatened with a nuclear attack, and even the Inter-Continental Ballistic Missiles. This raises concerns and speculations with respect to what actually Trump or Kim Jong-un would want from the meet. Both the leaders have their own essence of charismatic appeal, and it is indeed going to be a delight as to how the talks take place. On one side, you have Donald Trump, who is considered to be a ‘deal-cracker’. Even though there are concerns regarding his ‘not-so-experienced’ diplomatic team, in addition to the leaving of the Expert on North Korea, he has clearly showed his intentions to continue and go ahead with the meeting. People who have worked with him claim this to be very difficult as he is a kind of a person who reads his briefs only when they are short in size, and infact, are actually read out to him. On the other hand, you have the Supreme Leader of DPRK, who has come a long way fighting for his country’s prestige, and has finally been able to seize an opportunity for achieving something in the direction of world peace. His recent endeav- ours, specifically reuniting with South Korea, gives a very strong indication of his intentions that may be, he has finally decided to step down in order to flee itself from the harsh economic sanctions that his country has been facing.Page 6

Cover StoryHowever, as cynical it might sound, but Kim Jong-un would not easily let his military capabilities go away. IfUSA is aiming towards complete denuclearisation of the Korean Peninsula, it is imperative to consider that,Kim Jong-un would also try his level best to retain his nuclear arsenal, as well as will also try to get the sanc-tions lifted back. though it’s going to be a tough negotiation, however, there is a certain element of commonality present from the perspectives of both the nations, and one thing can be ascertained that this element isgoing to comprise major portion of the upcoming negotiations. The element that we are talking about here isthe ‘denuclearisation of the Korean Peninsula.’Denuclearisation of the Korean PeninsulaAlthough this covers a substantial part of the negotiations, it still stands be a secondary issue in the queueofdiscussions. Mr. Moon, who has been assigned the responsibility to mediate between the United States ofAmerica and North Korea, argues/believes that the process to reach to an agreement, with DPRK ending itsnuclear programme followed by the United States guarantying security arrangements including a peace treaty,is not going to be tough/is manageable. At the same time, it would not be imperative to ignore the interests ofSouth Korea into the entire dialogue. South Korea wants to follow a sequential process, wherein the primaryphase/sequence shall comprise of ‘freezing’ up of North Korea’s nuclear programme, followed by the denucle-arisation of the Korean Peninsula.I think this approach,of having the entire negotiation bifurcated into two distinctive segments, i.e., primary and secondary shall/may yield more fruits. However, the same seems to be very difficult as for every time USA asks something pertaining to denuclearisation from North Korea, the counter- part might ask for reciprocal incentives, which the United States of America might not be able to offer at the moment’s notice. with regards to the same memory, it reminds me of an article by Michael O’Hanlon, a senior fellow in Foreign Policy at the Brookings Institution, wherein he very beautifully laid down a map for denuclearisation with the help of a few steps. As per Michael, the first step should be freeze testing. This shall include the freezing of the testing as the name explains, as well as the production of nuclear weapons. However, this step of the process has already been initiated by North Korea earlier this year. The second step would be of capping. This shall require North Korea to shut off all of its nuclear facilities, followed by providing a database comprising data of all the sites & facili- ties, and allowing the inspectors to inspect all the possible sites pertaining to the same. The third step shall include dismantling of infrastructure, which is primarily being used to produce enriched uranium and plutonium, such as centrifuges, reactors, etc. The fourth and the final step shall focus on disarmament. This shall require North Korea to extricate its existing fissile material, and sending the nuclear warheads out of the country.It is this step’s success that should probably convince the United States to lift off the economic sanctions againstNorth Korea. Until then, it is very crucial/ obvious for the States to maintain its dominance and strictness interms of the imposition of sanctions against North Korea because of the strong leverage that it gives to US overNorth Korea. Once this process is finished, Trump can then focus upon the demilitarisation of the Korean Pen-insula, and a possible Peace Treaty between Washington and Pyongyang, if at all that comes to the table.The entire idea is to acknowledge the fact that immediate denuclearization is not possible with a country likeNorth Korea, and especially a leader like Kim Jong-un. Hence, only a systematic, well-planned and a structuredapproach shall lead USA to get its demands fulfilled. Kim Jon-un is mainly aspiring for a reasonable time toenhance its nuclear capabilities, and hence, this meet is a desperate opportunity for DPRK as well. This summitneeds to be dealt with high caution and care, even a slightest of distortion can again render the peace processinto shambles and hence, ineffective, therefore, we shall all come back to the same position again, or may beeven worse. Page 7

Libertatem Magazine - Edition 40AWAcnaqlAumniasairltyti’sosinsFlipkartBy Anooj Srivastava It is a moment of pride for the Indian start-up ecosystem and a moment of awe for retailers as Walmart ac- quires Flipkart for $16 billion in the world’s biggest ecommerce acquisition. Under the terms of the deal, Walmart will own 77 per cent of the stake in Flipkart. Considering that Amazon has been arduously framing policies to compete with local businesses (in sectors such as grocery) to become a global retail blockbuster, to expand and deepen seller base, to strengthen logistics and to make technological investments, this bold deal by its arch-rival Walmart, is not much of a surprise. Despite Walmart’s consistent attempts over years to enter India, it has remained confined to a ‘cash-and-carry’ wholesale business amid tough restrictions on foreign investment. At its 21 best price wholesale stores in India, Walmart has been striving to sell everything from FMCG to furniture. The new deal with Flipkart will enable Walmart to have a crack at the Indian market and explore new opportunities. This is an equally enticing propo- sition for Flipkart as well. Till now, Flipkart’s main weapon to grow its business has been its investors’ money, and the deep discounts it offered to customers. The deal with Walmart will not just provide additional funds to Flipkart, but also extensive expertise in logistics, supply chain management and retailing, that will further its aim of becoming India’s leading e-commerce platform. Creation of a Global Retailer now Possible This alliance of Walmart with Flipkart can result in creating a global retailer in the market. The brand equity of Flipkart is well known and deep rooted in India. As India is a large market promising attractive long term growth, this acquisition has given Walmart an edge in becoming a global retailer by giving it access to approxi- mately 10 crore online customers. This deal accelerates the gradual globalisation of supply chains across diver- sified categories of products. The deal will help the customers have better access to a variety of goods, that too at lesser price, giving Walmart a competitive advantage against Amazon.Page 8

Featured StoryWalmart is well known for its expertise in merchandising, global sourcing, pricing, etc. which can be by Flip-kart to its advantage. Without this acquisition, the organisational bandwidth and energy would not have beeneasy for Walmart to build in India. The sweat and blood spared by Flipkart’s founders and management teamfor the last 11 years could not have been compressed. Especially so as Amazon might not have left Walmart alot of time to build itself in India.Impact on Online SellersWalmart has the reputation of killing small businesses by introducing lower prices than them. As a result, on-line sellers selling their goods on Flipkart are nervous. There is a fear among them that in order to gain a com-petitive edge, Walmart might introduce its own private labels via Flipkart, adding pressure on them to lowertheir prices and reduce their profit margins. A spokesperson of the All India Online Vendor’s Association said,“These products would be brought in at hyper-competitive prices, which will cannibalise the market and makeit difficult for other sellers to operate. We are studying the situation and will take appropriate action, includingthe legal route, if necessary.” [TOI]Boost for the EconomyThe battle between Flipkart and Amazon for retail leadership will undoubtedly intensify after the entry ofWalmart. However, there are going to be positive impacts as well. In addition to creating a humongous supplychain infrastructure, it will also create job opportunities. India’s total consumption is expected to rise to $3.6trillion in 2027 from $1.3 trillion in 2016, according to industry data. The retail market is expected to hit $1.8trillion from $650 billion in 2016. Of this, the biggest driver is expected to be food. [Economic Times]The American giant Walmart will revolutionise the Indian retail sector with low prices and a vast variety ofconsumer goods. Amazon’s fight-back will ensure that prices remain competitive. Page 9

Libertatem Magazine - Edition 40 This article talks about the recent Calcutta High Court judgment with respect to the blocking of roads for po- litical procession. The Honourable Court decided the matter on May 8, 2018. The Court had clubbed two writ petitions filed by two different petitioners. First one was filed by Rituparna Sarkar Dutta bearing number “WP 568 of 2015”. She prayed before the Court to issue writ of mandamus to the respondent authorities (the munici- palities etc.) to not give permission to political party or any authority to block the roads completely to carry out rally or procession or assembly or meeting. The latter one bearing WP No. 1130 of 2015 filed by Human Rights Protection for Common People and other parties, praying before the Court to not give permission for carry- ing out rally, procession etc. during the working days in the vicinity of Calcutta as the same paralyses the free movement of traffic. The petitioners further submitted that holding of rallies, processions etc. impedes not only the movement of normal traffic but also the movement of the emergency service providers like ambulances, fire brigades etc. All these happen due to the permission given by the executive authorities to completely block the roads and inaction on their part to ensure normal traffic movement when the rallies, processions are being held. They emphasized on the fundamental right to movement and right to livelihood by doing business or going to work. The State authorities are duty bound to ensure the smooth running of the traffic when the rallies, processions are being held. The Respondents submitted that after getting the prior information from the political parties about the rallies, meetings etc., the job of the police is to ensure proper traffic management and crowd control. Several police personnel including the lady personnel) are deployed for the safety of the public. CCTV cameras are installed at various places to ensure coordination among the police officers. Alternative traffic plans are made keeping in consideration the interests of several stake holders. They further submitted that as most of the region of Kolk- ata is densely populated, it is very difficult to control the traffic but they try their best to ensure normalcy. The representative of the Communist Party of India (Marxist) submitted that it is their fundamental right to hold processions, meetings etc. in peaceful manner to address the grievances of the public.Page 10

News Story Calcutta High Court decides on blocking of roads for political procession By Debajyoti SahaThe bench comprising of the Hon’ble The Chief Justice Jyotirmay Bhattacharya and the Hon’ble Justice ArijitBanerjee, after considering the contentions of both the parties, focussed on Article 19(1)(b) of the Constitutionof India. This article guarantees the meeting of people in any number to conduct assembly in peaceful manner.But there is no fundamental right to hold meetings on private property or Government property even wherethe Government is the employer. The above right is also subjected to the restrictions given in Article 19(3) i.e.public order, sovereignty or integrity of India etc. The Court emphasized on Section 144 of Criminal ProcedureCode, 1973 which gives District Magistrate or Executive Magistrate to the making of temporary orders of pro-hibition of meetings or processions to prevent an imminent breach of peace. The right to hold public meetingsand processions follows from the right to hold assembly. The Court stated that“The administration must ensure that a balance is struck between the fundamental right of a political party orfor that matter any group of persons to hold peaceful assembly/rally/procession and the right of the public ingeneral to carry on with normal life and activities.”The Court did not pass any direction as to whether the rallies, meetings etc. should be held on public holidaysonly. It left the same to the wisdom of the executive authorities to decide as to whether to permit the above ona particular day or not. Lastly, the Court gave the direction that “a reasonable part of every road/street must bekept free of blockage and open to pedestrians and motor traffic. This is absolutely imperative keeping in mindthe importance of essential and emergency services like ambulances, fire brigades etc.”According to the author, the judges have given a thoughtful judgment by balancing the rights of the public andthe political parties or other authorities. It did not negate the service rendered by the police personnel to controlthe traffic. As the law gives the power to the executive authorities to allow the holding of the meetings, proces-sions etc., the Court did not interfere with the same. This judgment can help the Courts of other States to givedirections with respect to the holding of processions, meetings etc. Page 11

Libertatem Magazine - Edition 40Re-establishing DiplomaticTies between India andLibyaBy Mohammad Azeemullah Union Minister, Kiran Rijiju’s Visit to Libya In view of the prevailing travel ban to Libya by the government of India imposed in 2016, the Union Minister, Kiran Rijiju’s visit to the north African country assumes more significance. Mr. Kiran Rijiju’s warm welcome at Tripoli International Airport by Libyan officials marks a drastic shift of engagement by the government of India to re-establish its diplomatic relations with the war-ravaged country. The minister’s two-day visit which started on 8th of May, 2018 as part of the External Affairs Ministry’s plan to reach out to Libyan government is the first ever sincere initiative by any political representative of the Modi government. Diplomatic Engagement The high-level engagement between two countries includes a wide range of issues. The most prominent ones among them are: reestablishing full-fledged diplomatic missions between the two nations, lifting the travel ban to Libya, the return of Indian companies to Libya, cooperation in the field of security along with other areas of vital concern and mutual interest. India had been a long ally of Libya. During the time of former dictator, Moammar Al-Qaddafi, Indira Gandhi had once graced Libya by visiting the country in 1984. After the rev- olution in 2011 and the subsequent chaos that engulfed the tiny rich nation, there had been stalemate in the relationship between the two countries. Though India had provided humanitarian assistance of US$ 1 million to Libya in 2012 and supplied artificial limbs known as ‘Jaipur Foot” for the handicapped who lost their limbs during the civil war, the warmer relationship could not be further materialized.Page 12

News Story Union Minister, Kiren Rijiju’s visit revives hope of Indian mission to be fully operational in Libya. Currently, the Indian embassy in Tripoli consists of only essential staff with a consular as an executive head. The Indian ambassador to Malta is in-charge of overseeing affairs of Embassy in Libya. Request to End Travel Ban Travel ban to Libya by the government of India which is still in force since 2016, has been a cause of great concern for Indian immigrants. They often find it difficult to come back to Libya from vaca- tion in India. Many of the Indian immigrants ob- tain a visa for the United Arab Emirates for Dubai to visit Libya while others try to choose Turkey to Tripoli. This has caused undue trouble to Indiannationals both physically and financially.The ban has also strained efforts of the Libyan government in recruiting professionals from India. The skilledmanpower is in huge demand in various sectors in Libya.In view of emerging development, the Libyan Foreign Minister of the Presidential Council’s government, Mo-hammaed Sayala, requested his Indian counterpart, Sushma Swaraj, to allow Indian workers to Libya when thetwo leaders met each other at the ministerial meeting of the Non-Aligned Movement in Azerbaijan earlier thisyear.The return of Indian companies to Libya is highly expected out of this meeting with Union Minister, KirenRijiju. Prior to 2011 revolution, the Indian companies were actively engaged in the exploration of oil resources,building roads, bridges and expanding housing projects. Previously, there were nearly 18000 Indian workers inLibya. Currently, only 1500 immigrants remain.Bilateral TradeThe high-level engagement is also likely to push forward the bilateral trade between India and Libya. India isa great export of such items as electrical equipment, mechanical appliances, vehicles, parts of turbines, boilers,iron & steel articles, goods, drugs and pharmaceuticals. On the other hand, Libya’s supply of mineral fuels,mineral oils and products of their distillation, bituminous substances and mineral waxes is likely to boost In-dia’s energy sector.As per latest statistics for the year 2010-11 (April – Dec), the bilateral trade stood at $ 584.58 million comparedto total trade of US$ 844.62 million for the year 2009-10. The bilateral trade began showing significant upwardtrend since 2004-05, peaking to US $ 1,366.65 Million in the year 2007-08 as compared to US $ 29.12 Million forthe year 2003- 04.However, exports by India to Libya during the period 2015-16 went down at USD 122.58 million. The declinewas due to ongoing political turmoil in Libya since July 2014.Timely Move to Fill the VacancyIndia’s decision to break the ice and re-establish their diplomatic relations is a timely move. At the moment,there is a perception of noticeable political change on the ground in Libya. Indian professionals are highlyrespected.Major countries such as USA, China, Britain, Turkey and Italy have begun to engage with the government ofLibya and look forward to lending a helping hand in the reconstruction of the war-torn country. India mustmake their presence feel and play a leading role in Libya or else other ambitious nations will fill the vacancyparticularly China. Page 13

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

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Libertatem Magazine - Edition 40Decision of Indian Courts againstVijay Mallya is valid and can beenforced against his assets in UK King of good times seems to have run out of good times. A UK court has ruled that judgment of Indian Courts against Mallya can be enforced against his assets in the UK. Facts of the Case Liquor baron Vijay Mallya fled to the United Kingdom in 2016 after defaulting on loans taken by him from vari- ous banks in India. A United Kingdom High Court dismissed Vijay Mallya’s plea to set aside the order of Indian Recovery Tribunal freezing his accounts worldwide to recover around 1.45 billion. A group of 13 banks led by India’s largest Bank State Bank of India is trying to get a hold on the liquor baron to recover their dues from him. Vijay Mallya is fighting a number of legal battles in various English Courts and it includes an extradition case to India. Westminster’s magistrate court in the UK will deliver the final verdict on extradition on 11th July. The decision of the Case Debt Recovery Tribunal of India had issued a freeze order against Mallya, preventing him from selling off his assets from England and Wales up to that value or to in any way dispose of, deal with or diminish the value of his assets in or outside of English jurisdiction, up to the same value. Tuesday’s verdict of commercial court (Queen’s Bench Division) strengthened it further. Partner of law firm TLT Paul Gair who represented the banks said that “Today’s judgment is a very important decision not just for our clients, who want to proceed in this jurisdiction with enforcing the judgment they secured against Mr. Mallya in India, but also for Indian and international banks more generally. Following the decision today, the banks are now considering the enforce- ment options available to them to recover the sums due from Mr. Mallya under the DRT judgment, which is now enforceable in England and Wales as if it were a judgment given by the English courts.” Decision was given by Judge Andrew Henshaw in favour of consortium of 13 banks which included Bank of Baroda, Corporation Bank, The Federal Bank Limited, IDBI Bank Limited, Indian Overseas Bank, Jammu & Kashmir Bank Limited, Punjab & Sind Bank, Punjab National Bank, State Bank of Mysore, UCO Bank, United Bank of India and JM Financial Asset Reconstruction Co. Pvt. Ltd. Moreover, The court also identified that there was an inherent risk of Mallya dissipating his assets by citing the example of how he transferred 40 million dollars to his children’s trust and passed an order to freeze his assets. Mallya is currently receiving an allowance of 5,000 pounds a week which was increased to 20,000 pounds this year. Vijay Mallya feels that he will not be provided a free and fair trial in India trailed by media frenzy and hysteria. Learning of the Case From this case, we learn that orders passed by Indian Tribunals have validity in foreign jurisdictions as if they were passed by local courts.Supreme Court: Railways to paycompensation to passengersif they dies during boarding orde-boarding the trainPage 16

The CourtroomThe Apex Court elucidates that the compensation cannot be denied on the ground of negligence on the part ofthe passenger and said it is an “untoward incident” and the victim is entitled to compensation. As per the pres-ent legislation, section 124A of the Railways Act, 1989 no compensation will be given to a passenger if he dies orsuffers injury due to suicide or while trying to commit suicide.There was a conflict of opinion of different High Courts as some applied the principles of strict liability and heldthat railways should be responsible while others said it was due to the negligence of the passengers and railwaysshould not be held accountable for the same.Removing this ambiguity, the Supreme Court held that the railways will have to pay compensation to victims. Itdeclined to accept the concept of “self-inflicted injury”.Judges: Justice AK Goel and Justice Rohinton Fali NarimanIssue of the case:The bench was hearing an appeal of a compensation of Rs 4 lakh under Section 124A of the Railways Act, 1989.The appeal was made by a woman whose husband Jatan Gope had died in an untoward incident’ in 2002. Sheclaimed that he had bought a second-class train ticket and died after falling from the train due to the rush ofpassengers.The claims, however, were challenged by the Central government. It had argued that the Gope was not a passen-ger but was merely roaming around the railway tracks. One Kailash Gope, who had also witnessed the accident,said that the deceased had bought a ticket and fell in front of his eyes. The Railway Claims Tribunal challengedthe appeals saying that the deceased was not a passenger and that it was a case of run over.Court’s Decision:A Supreme Court bench comprising Justices AK Goel and Rohinton Fali Nariman ruled that in case of an “un-toward accident” compensation must be paid no matter if the accident was not a case of “wrongful act, neglect orfault on the part of the railway administration.” The Section 124A of the Railways Act, 1989, says that no com-pensation can be paid if the passenger commits suicide or attempts suicide or commits any such act that harmshim/her. The apex court also ruled that when it is about the case “untoward accident”, the proof of negligenceis not required. “Compensation as applicable on the date of the accident has to be given with reasonable interestand to give effect to the mandate of beneficial legislation, if compensation as provided on the date of award ofthe Tribunal is higher than unrevised amount with interest, the higher of the two amounts has to be given,” thebench said.Supreme Court rules that a wom-an on ground of Cruelty is allowedto lodge complain against herEx-husband even after divorceThe Apex Court strengthened the laws protecting women in India by declaring that a woman, on the ground ofcruelty is allowed to lodge complain against her ex-husband even after divorce.Facts of the CaseA bench of justices Ranjan Gogoi, R Banumathi and Navin Sinha was listening to an appeal against an order ofRajasthan High Court in which it was held that absence of subsisting domestic relationship in no way prevents acourt from providing relief to the aggrieved women. High Court had passed the above-mentioned order while Page 17

Libertatem Magazine - Edition 40 deciding a matrimonial dispute and to bring home the point also cited the following example that even after the dissolution of marriage between the parties, if an ex-husband attempts to commit an act of violence such as entering the place of employment of the divorced wife, trying to establish contact with her or causing vio- lence to her dependents or other relatives, she is not precluded from seeking protection orders under the law. Similarly, if the divorced husband attempts to dispossess the woman from the shared household or property jointly owned, she can approach a court for appropriate relief. Counsel for the estranged husband Mr. Dushyant Parashar argued before the bench that the Protection of Women from Domestic Violence Act 2005 which came in force on October 2006, cannot be applied retrospec- tively. He further elaborated his argument by saying that if the provisions of the domestic violence law were allowed to be applied retrospectively, then it would be lead to mass scale misuse. Moreover, Mr Parashar also contented that husband-wife relationship often ends on a bitter note and if the provisions of the Act were allowed to be used retrospectively, then it would further increase the bitterness between two parties and rule out the possibility of any compromise and legislative intent of the statute should also be considered while interpreting and applying the law. The decision of the case The matter was decided by a full bench and the Supreme Court of India after listening to the facts, argu- ments advanced decided to not interfere with the order of Rajasthan High Court. The Supreme Court of India agreed with the High Court verdict and held that a woman on the ground of cruelty can lodge a complaint under the domestic violence law against the excess committed by her ex-husband even after marriage came to an end. Learning of the Case From this case, we learn that a woman has the right to bring an action of cruelty against her husband even after the dissolution of marriage. Former CMs required to vacate government bungalows – Supreme Court Supreme Court on Monday, 7th April has ruled that ex-Chief Ministers are not allowed to stay in government bungalows and the amended Uttar Pradesh (UP) state law [UP Ministers (salaries, allowances & miscella- neous provisions) Act, 2016] was declared, “a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity.” Facts of the case Today’s Supreme Court ruling found its basis on the 2016 verdict given by a three judges Division Bench comprising of Justices A R Dave, N V Ramana and R Banumathi who had held that “the 1997 rules (Ex-Chief Ministers Residence Allotment Rules, 1997) so far as they are not in consonance with the provisions of the 1981 Uttar Pradesh Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, are bad in law.” The Court further remarked, “the impugned 1997 rules give largesse only to former chief ministers without any element of reasonableness. In our opinion, the 1997 rules, which permit the former chief ministers to occupy government bungalows for life cannot be said to be valid.” Based on a plea filed by a UP-based NGO Lok Prahari, the Supreme Court judgment on August 1, 2016 had directed the ex-Chief Ministers to vacate any government bungalow or any government accommodation after 15 days from the date on which his term comes to an end. After the 2016 verdict of the Apex Court, Akhilesh Yadav government made amendments to the 1981 Uttar Pradesh Ministers (Salaries, Allowances and Miscel- laneous Provisions) Act believing “it would pass the top court’s scrutiny since its objection was technical inPage 18

The Courtroomnature.” The amended UP Ministers (salaries, allowances & miscellaneous provisions) Act, 2016 gave enti-tlement to five ex-chief ministers, Rajnath Singh, Rajasthan Governor Kalyan Singh, Mulayam Singh Yadav,Mayawati and ND Tiwari to keep their government bungalows.Questions placed before the CourtThe questions that came up during the hearing of the case was based on the legality of the Act, the benefitsdeemed fit for the position of former chief ministers and what they are entitled to.1. Whether former chief ministers be allowed to avail the facility of government bungalows?2. Whether the 2016 amendments passed by the UP government should be considered valid?3. Whether similar provisions in other states are applicable?4. Whether the facility given to former chief ministers was similar to the facilities available for Presidents, Prime Ministers and Vice Presidents?Court verdictCourt appointed amicus curiae Senior advocate Gopal Subramanium on Thursday, January 4 2018 was pre-sented with the questions that arose in this PIL. In his deposition advocate Subramanium had suggested that“the said ministers who demitted office did not require public property.” He reiterated that the 2016 amend-ment to the UP law was “intended to overcome the top court’s August 2016 order of eviction of former chiefministers.” On the scope of the extension of the PIL to include other states he proposed that the Supreme Courtshould hear the states concerned.The two judges Division Bench comprising of Justices Ranjan Gogoi and R Banumathi held, “Section 4(3) ofUP Ministers (salaries, allowances & miscellaneous provisions) Act, 2016 is unconstitutional. Such laws createa separate class. Once a public servant demits office there should be nothing to distinguish them from a com-mon man.” The Court was clear on its contention that not only the amended law has no legal basis but furtherpointed out that “the Chief Minister, once they demit office, is at par with the common citizen, though by vir-tue of the office held, they may be entitled to security and other protocol. But the allotment of government bun-galows, to be occupied during their lifetime, would not be guided by the constitutional principle of equality.”Supreme Court’s decision and it’s impactThe largesse allowed to ex-Chief Ministers of any State should be in consonance with the principles of equality.Once a Chief Minister demits his position he is at par with a common citizen of the country and hence does notmerit any special privileges in violation of Article 14 of the Constitution of India. Once again the Court upheldthe provisions of our Constitution and championed the cause of equality and justice.Supreme Court reserves verdicton 498A pleaThe SC on 23rd April reserved its verdict on petitions seeking restoration its verdict of the stringency of Sec-tion 498A of IPC which provides for arrest of the husband and his relatives on the complaint of a wife allegingcruelty meted out to her because of dowry.In the course of the hearing on the question of reconsideration of the 2017 apex court judgement in RajeshSharma , diluting the efficacy of section 498A of the IPC, Senior Counsel Indu Malhotra, having been appoint-ed Amicus Curiae in the writ petition by NGO Nyayadhar, advanced submissions in respect of the directionsissues in the said judgment.Petitioners being, senior advocates Indu Malhotra and Indira Jaising brought up the fault in the SC’s July 27,2017, judgement by a two- judge bench in diluting the arrest provision and said the IPC provision was enact-ed to protect women from ill treatment at her matrimonial home by husbands and in laws as the legislaturebelieved that dowry had a chilling effect on the institution of marriage.Referring to the original petition Indira jaising advanced,” the simple prayer in the petition was for quashing Page 19

Libertatem Magazine - Edition 40 the FIR, in which behalf usually the(1990 apex court judgment in) bhajan lal(state of Haryana v.ch. Bhajan Lal ) is followed . the woman in the main matter in Rajesh Sharma had filed a complaint under sections 199 and 200 of the Cr.P. C. a complain is different from the FIR in sense that the former involves the intervention of a Mag- istrate who, upon recording evidence , determines whether to issue summons. “to tackle the concerns regarding frivolous and vexatious complaints, section 182 of the IPC may be resorted to”, added Ms. Malhotra. The chief Justice on 23 rd april said “ we are not dealing with the facts of the case. The judgment in Rajesh Shar- ma binds the parties thereto. This is not an appeal.. we shall see if the directions fill in the gaps in consonance with the spirit of Section 498A and validly under Article 142.” Bench- the bench was consisted of Justice Deepak Mishra and Justices A M Khanwilkar and D Y Chandrachud said it agreed with the petitioners’ plea that the two judge bench’s decision to dilute the stringency of Section 498A did not co-relate with the situation presented by the petition. The verdict on 498A clarified that if protection of women in matrimonial homes was needed through a strin- gent provision, at the same time, one could not lose sight of possible abuse of the section to violate the liberty of the husband and his relatives. Duo from Uttar Pradesh award- ed life imprisonment for brutal murder of Meenakshi Thapa Approximately after six years, the two junior artistes are sentenced to life imprisonment by the Mumbai Sessions Court for murdering the aspiring model and budding actor, Meenakshi Thapa. Additional Sessions Judge SG Shette awarded the sentence to 41-year-old Amit Jaiswal and his girlfriend Preeti Surin (32) under Indian Penal Code sections 302 (murder) and 364-A (kidnapping for ransom). Factual Matter Of The Case: According to the prosecution, Jaiswal and Surin, both hailing from Uttar Pradesh, had befriended Thapa (26) on the sets of the Kareena Kapoor starrer film Heroine. Both the accused used to work as model coordinators. Under the impression that the actor belonged to a rich family, the duo had hatched a conspiracy to abduct her and demand a Rs 15-lakh from her family. The duo had also persuaded the actor, who had moved to Mumbai from Dehradun only two months ago, to accompany them to Uttar Pradesh on March 12, 2012, stating that there was an acting assignment for her. Sub- sequently, they had abducted her, but after realising that her family was in no position to pay up, they strangu- lated her, according to the prosecution. The remains of the actor’s body, with the head severed, were found in the sewage tank of a house in Allahabad a month after the incident. The duo had come under the lens of the police as Thapa was last seen with them. Call details and other evidence had confirmed their involvement, a Crime Branch official had said. A month after her murder, Jaiswal and Surin were arrested when they were withdrawing money, using Thapa’s debit card, from an ATM in suburban Bandra. Decision of the Court: The prosecution had sought harshest punishment for Jaiswal and Surin saying that this was a barbaric act which should be taken as an aggregating circumstance against the convicts. However, the judge observed that it was not the rarest of rare case and also the convicts have dependents on them. The court sentenced them to life imprisonment,” special public prosecutor Ujjwal Nikam said.Page 20

The CourtroomMadras High Court deniesAnticipatory Bail to S Ve Sheharfor making derogatory commentabout women on Social MediaThe anticipatory bail application of actor-turned-politician S. Ve. Shekhar was rejected by Madras High Court onThursday. S. Ve. Shekhar had shared a derogatory post about women journalists.Facts of the CaseThe Facebook post titled Madurai University, Governor and virgin woman’s cheeks came after a female corre-spondent of English magazine accused the Governor of Tamil Nadu of touching her inappropriately. BJP partymember Mr. S. Ve. Shekhar had shared the same facebook post which used harsh words and portrayed all work-ing women in bad light.Actor turned politician before sharing the post, wrote that “I feel pity while looking at that woman journalist. Sheclaims she was disturbed because the governor touched her. But when you read her tweets, it is understood that her inten-tion was to target the Governor and Modi. It is actually the governor who has to wash his hands with Phenyl after touchingher. These (TN media persons) are cheap and disgusting creatures. Most people who work in the media in TN are usuallyIlliterate, cheap and don’t have any general knowledge. This woman is not any different.” Facebook post in questionalleged that women journalists sleep with top bosses to get top positions.S. Ve. Shekhar moved to Madras High Court in April seeking anticipatory bail after being booked by the CyberCrime Cell of the Central Crime Branch in Chennai. Shekhar was booked under section 504 and section 505(1)(c), section 509 and section 509 and section 4 of Tamil Nadu Prohibition of Women Harassment Act and IndianPenal Code. Mr. Shekhar in his defense quotes that he does not endorse the views expressed in the said messageand is totally upset as he himself is from a family that respects women and women journalists.The decision of the CourtJustice S. Ramathilagam rejected his application for anticipatory bail and said that “What is said is important butwho has said it is very important in a society because people respect persons for the social status. When a celeb-rity forwards a message like this, the common people will start to believe it.”“This would send a wrong message to the society at a time when we are talking about women empowerment. The languageand words used are not indirect but a direct abusive foul language which is not expected from a person of his caliber andage.”The judge further added that “Daily we see young emotional boys getting arrested for doing these type of activities in the so-cial media. Law is the same for everyone and people should not lose faith in the judiciary. Mistakes and crimes are not same.Only children can make mistakes which can be pardoned. If the same is done by elderly people, it becomes an offense.”The post was deleted after it was realized that it created a massive storm but some journalist had already sharedit on social media platforms condemning it vehemently.Learning of the CaseFrom this case, we learn that Law is same for everyone and no one can get away after breaking the law that themessage forwarded on social media amounts to accepting and endorsing it. Page 21

Libertatem Magazine - Edition 40Non-compliance of sec 202 CrPCin dishonouring of cheques casesdo not merit quashing of the case– Calcutta HC A number of cases under Negotiable Instruments (NI) Act, 1881 came up for review with Calcutta High Court to determine whether compliance with Section 202 CrPC is mandatory in cases of dishonour of cheques. It was decided that it is not necessary to comply with Section 202 CrPC in such cases. Facts of the case Section 202 CrPC is a process that prevents unnecessary harassment of innocent persons falsely accused in cheque frauds. It allows a magistrate or an investigative officer under direction of the magistrate to determine whether any crime was committed by the accused before initiating criminal proceedings. It prevents false complainants with malicious intent to implicate any innocent person as well as saves time and effort on behalf of the Court. After the 2005 amendment to the CrPC, it became mandatory to initiate process under Section 202 especially for persons residing beyond the territorial jurisdiction of the trial magistrate. In the present petition it was alleged that the magistrate has subverted the rule of law by taking cognizance of a case and started proceedings under Section 204 CrPC without going through the order of the process by deter- mining the validity of the complaint under Section 202 CrPC as is the norm. The petitioner alleged malpractice and requested that all proceedings of the said case be quashed under Section 482 CrPC for wrongful trial proceed- ings as followed by the magistrate of the trial court. Questions placed before the Court Regarding the mandatory use of Section 202 CrPC before the commencement of trial in criminal proceedings five questions were raised in front of the Honourable Court to decide. • Whether the amended Section 202, CrPC would apply to cases involving offences punishable under Negotia- ble Instruments Act, 1881 • Whether use of Section 202 CrPC is mandatory before trial starts • What is the nature of inquiry under Section 202, CrPC • Whether non-compliance with Section 202 CrPC vitiates the order of process issued • Whether any objections regarding non-compliance with Section 202 CrPC should only be raised at the initial stages of the trial proceedings Court ruling A Division Bench of the Calcutta High Court comprising of Justices Debasish Kar Gupta and Shekhar B Saraf passed the judgment to the requirement and use of Section 202 CrPC in court proceedings. The review petition was presented in front of the Honourable Court to decide whether or not compliance with Section 202 was man- datory in dishonour of cheques cases punishable under Section 138/141 of the NI Act. The judges placed reliance on the N Harihara Krishnan v J Thomas case and observed that the scheme of pros- ecuting in NI Act case is different than in CrPC. The non-obstante clauses in the provisions of the NI Act were placed in order to exclude the provisions of the CrPC. The Court held, “legislature has taken care of the interest of the complainant and the accused by exempting the complainant from facing the general rigors of Cr.P.C. at pre-summoning stage under Section 202 Cr.P.C. Furthermore, in cases falling under Section 138 read with Sec- tion 141 of the N.I. Act, the Magistrate is not mandatorily required to comply with the provisions of Section 202 (1) before issuing summons to an accused residing outside the territorial jurisdiction of the learned Magistrate concerned.”Page 22

The CourtroomPlacing reliance on National Bank of Oman v Barakara Abdul Aziz case Calcutta High Court decided that it isessential to begin enquiry under Section 202 CrPC especially if the accused is not a resident within the territori-al jurisdiction of the concerned magistrate. The Court further observed that the nature of enquiry under Section202 CrPC is such so as to prevent any undue harassment and to ward off false complaints against persons resid-ing at far off places beyond the territorial jurisdiction of the concerned magistrate.The judges found that there was no ground for quashing the case as per the provisions of Section 482 CrPConly because proceedings under Section 202 CrPC was not followed as precedent dictates that in such instanc-es matter should be remitted back to the lower court so that fresh order in compliance with Section 202 couldbe issued, but it is not necessary to do so in the present case as it is being processed under NI Act in which thescheme of prosecuting is different than in CrPC as was held in N Harihara Krishnan v J Thomas (supra) case.The Court explained that is necessary to make any objections regarding non-compliance with Section 202 CrPCat the beginning of the trial process keeping in mind the provisions of Section 465 CrPC which categoricallystates that if an aggrieved party has any objections on any technical ground it is necessary that he must raise theobjection thereof at the earliest stage, otherwise “he cannot be heard on that aspect after the whole trial is overor even at a later stage” was the verdict held in this case.Verdict on the caseThe judges found no grounds for complaint in this case and decided that no rule of law was broken by the mag-istrate for opting to start proceedings under Section 204 CrPC. But in case there was any merit to the objectionsraised by the petitioner he has the right to seek remedy as per the provisions of Section 482 CrPC. The DivisionBench ruled that the proceedings initiated at the lower court were made in accordance with the provisions ofthe law and there was no merit in the review petition. It is not mandatory to invoke Section 202 CrPC in casesbeing prosecuted under NI Act.Delhi upholds Life Imprisonmentto 5 for raping Danish woman in2014FactsThe Delhi High Court on 16th April upheld life imprisonment given to five convicts for raping a 52- year –OldDanish woman in Delhi in 2014. The Danish woman came to Delhi on January 1, 2014. She then went to Agraand returned to the capital on 13th of the same month. On losing her way to her Paharganj hotel, she sought di-rections from one accused. The men, all vagabonds, then led her to a secluded spot near the Divisional RailwayOfficer’s Club and raped her at knife point.One of the accused died in Tihar jail. The nine convicts include Arjun (23), Raju alias Chhakka(24),Mahendraalias Ganja(28), Raju alias balji(25), and three minors(whose proceedings are handled by Juvenile Justice Board).Another accused Shyam Lal had dies in Tihar jail in Feb 2016.BenchA bench of Justices S Muralidhar and I S Mehta said the testimony of the victim and the DNA report, whichwas a clinching piece of evidence, have nailed the guilt of the convicts.Court proceedingsThe court rejected the argument of the convicts that the prosecution had manipulated the evidence under me-dia pressure. It said the DNA profile connected the convicts with the crime and there was also a similarity inthe forensic report sent by the Danish authorities and the DNA report prepared in India. Page 23

Libertatem Magazine - Edition 40 “if the accused’s DNA has been found on the top which the victim was wearing at the time of the incident, it is for the accused to explain how it reached there”, it pointed out. Bench pulls up investigating officer for not doing job properly. While hearing the case, the bench pulled up the investigating officer for a botched – up inquiry. The High Court, meanwhile, rejected the testimony of an eye witness given in the trial court, claiming to have seen the accused persons committing the crime with the victim, saying he could not be accepted as a natural witness. The convicts were charged under Sections 376(D)(gang rape), 395(dacoity), 366(kidnapping), 342(wrongful confinement), 506(criminal intimidation) and 3 (common intention) of the IPC. Announcing the sentenced in 2016, the trial court had called their crime ‘inhumane’ and ‘brutal’, which harmed the reputation of the country Judgment The HC dismissed the convicts’ plea challenging the 2016 judgment of a trial court, saying the DNA report confirmed their guilt. “In view of the victim’s evidence, corrobated by the DNA report, this court is satisfied that the conclusion of the trial court on the guilt of the accused is correct. Accordingly, the appeals are dis- missed,” said a bench of justices S Muralidhar and I S Mehta IIT Topper asked for damages from FIIT-JEE in Delhi HC IIT Topper Nitin Jain had lodged a complaint with Delhi High Court against the coaching institute FIIT-JEE for gross misconduct and misrepresentation of his name in public. The Delhi High Court has found merit in his case and pulled the FIIT-JEE, Delhi to court to hear the case. Facts of the case Nitin Jain studied in Modern Vidya Niketan, Faridabad and was always a brilliant student. In 2009, he became the second scholar after Piyush Srivastava to achieve success by topping both Joint Entrance Examination for admission to the Indian Institutes of Technology (IIT-JEE) and All-India Engineering/Architecture Entrance Examination (AIEEE). He was an alumni of FIIT-JEE, South Delhi and an extraordinary student. He went on to won National Talent Search Examination (NTSE) in 2007 and won three gold medals in three international science Olympiads held in Indonesia, Mexico and Iran in 2008-09. After his brilliant performance in IIT-JEE, the institute (FIIT-JEE) wanted him to do a promotional campaign crediting his success to the institute. Jain went with the idea and penned an excellent eulogy in favour of the institute attributing them with his success, talked about his inspiration and hard work. He and his family also appeared in a video at the behest of the institute and discussed the path of his success at length. But without informing him, the institute used his pictures and videos to generate more business. Not only that Jain com- plained to the Court that his photos and a distorted video appeared on pornographic sites which was practical- ly impossible without the institute’s explicit approval in the same. Court ruling Nitin Jain filed a case claiming a compensation to the tune of Rs. 5.85 crores from FIIT-JEE for gross misconduct and misrepresentation, damage to his reputation, trying to malign his public image, breach of his right to pri- vacy and institute’s refusal to cooperate with his family after multiple discussions both verbally and written by way of legal notices. Jain, a resident of San Francisco, USA and currently working for Google LLC was visibly upset with the callous disregard and indifferent attitude shown by the institute towards him and his family. The plea suit was heard by Honourable Justice Rajiv Sahai Endlaw at the Delhi High Court. He examined the petition and called upon the institute (FIIT-JEE) to respond. FIIT-JEE claimed that Jain has no locus standi in this matter as he had already submitted his commendations and videos to the institute voluntarily. They claimed that there was no breach of trust on their part and hence no claim of compensation arises.Page 24

The CourtroomJustice Endlaw enquired, “You neither have the intent to settle the matter, nor any control over cheating. Did you everpay him anything or promise to pay for flashing his photographs in national dailies?” The Delhi High Court also tooknotice of the fact as alleged in the suit that the video was shot two days before the announcement of the IIT-JEEresults of 2009 and the plaintiffs had no idea that the materials would be used for commercial purposes. JusticeEndlaw acknowledged the family’s claim that FIIT-JEE not only behaved illegally but unethically as well andposted the case to be heard further on August 31, 2018.Bombay High Court Rules WomenIn Live-In Relationship Are EntitleTo Claim Maintenance From TheirPartnerFacts of the caseWoman Jayashri was married earlier and even had kids from that marriage. Her husband deserted her 5 yearsafter their marriage. Jayashri was a vegetable seller business and her shop was right next to Shamshuddin’sshop. Two came close and after a few years, Jayashri moved in with Shamshuddin along with her children.Jayashri’s kid addressed Shamshuddin as father and they started living as a married couple. Couple pooled intheir finances and shared the household expenses and chores.They introduced themselves as husband and wife in spite of not being formally married. After living togetherfor 15 years, the relationship between the couple soured and they decided to go their separate ways. Jayashriciting her destituteness filed a maintenance petition against Shamshuddin in a magistrate court under the Do-mestic Violence Act. The magistrate directed Shamshuddin to pay two thousand rupees to Jayashri per month.On appeal to the Session’s Court, the said order was reversed and the Court held that the live-in relationship ofa couple cannot be construed as a relationship in “nature of marriage.” This decision was appealed against inBombay High Court.The Decision of the CourtSingle Judge Bench of Justice Bharati Dangre after examining all the evidence on the record and keeping inmind the facts and circumstances of the case ruled that a woman living in a live-in relationship with a man for15 years makes her eligible to claim maintenance from her partner. Shamshuddin’s lawyer in his argumentstried to question the character of Jayashri and said that merely living together under a shared household is notthe only test determining whether the relationship between a couple is that of marriage. Justice Dangre saidthat “It must be noted that the applicant (Jayashri) never claimed that she was married Samshuddin.It is seen that the duo projected themselves to the world as husband and wife and not only that there was aneconomic exchange between them, they also carried out business activities together. She was helped by Sam-shuddin in raising her children, who referred him as father.” Moreover, replying to respondent’s argumentover the character of Jayashri Hon’ble judge said that “this Court is of the opinion that merely throwing doubton the character of a woman like Jayashri would not make a man escape the liability, specifically when he hasshared the same household with her and treated her like his wife for a long period.” Justice Dangre increasedthe maintenance from two thousand to four thousand and instructed Shamshuddin to pay the same to Jayashrievery month.Learning of the CaseFrom this case, we learn that a woman in a live-in relationship for 15 years is entitled to claim compensationprovided they project themselves as a couple to the world and share economic duties of the household. Do-mestic Violence Act enacted in 2005 is a benevolent law for protecting women from violence and term abuseshould be interpreted broadly to fulfill the purpose of the Act. Page 25

Libertatem Magazine - Edition 40 Allahabad High Court Grants Bail to Dr. Kafeel Khan in Gorakhpur Tragedy Case Dr. Kafeel Khan head of pediatric department at government hospital Gorakhpur was granted bail by Alla- habad High Court on Wednesday. Dr. Kafeel was arrested in September last year over charges of corruption and in connection with the death of over 63 children at BRD hospital. He was languishing in jail for past seven months. Facts of the Case On 10th August 2017, 63 children in government-run BRD hospital, Gorakhpur died due to lack of oxygen. On being informed about the death of children, Dr. Kafeel Khan who was on sanctioned leave sprang into action, used his resources, ran from pillar to post and managed to arrange 250 oxygen cylinders in a very short span of time. It is reported that he paid for these cylinders out of his own pocket. On 2nd September 2017, he and few of his colleagues were arrested by the police. Dr. Kafeel Khan was charged with attempt to commit culpable homicide, criminal breach of trust and criminal conspiracy. The additional charge of corruption and private practice were also slapped but dropped during the investigation. Dr. Shabista Khan wife of Dr. Kafeel Khan revealed a letter to media written by her husband from prison in which he pleads his innocence and says that he was made a scapegoat for the failure of Gorakhpur administration. Khan alleged that DM of Gorakh- pur, DGME(director general of medical education), principal secretary health education did not take any steps against the 14 reminders sent by Pushpa Sales for clearing its dues of 68 lakh rupees for supplying oxygen cyl- inders. He further said that Yogiji became angry because the incident got huge media coverage and he blamed Dr. Kafeel Khan for the same. The Decision of the Case Single judge bench of Justice Yashwant Varma granted him bail and agreed with the argument of advocate Nazrul Islam Jafri representing Dr. Kafeel Khan who contended that there was not enough evidence with the state government to link the charges with the doctor. Moreover, counsel for Dr. Khan also said that the court believed, that “if he is involved in private practice you can suspend him but cannot keep him in jail. Indian Medical Association came out in support of Dr. Kafeel Khan demanding his release and calling him a victim of conspiracy. Indian Medical Association Secretary, Dr. R.P Shukla said the situation of lack of oxygen cylinders arose due to administrative slack, unaccountability, and corruption. For this, the officials from Go- rakhpur and Lucknow are to be blamed and not doctors. Dr. Kafeel Khan’s wife welcomed this decision and said her faith in the judiciary has been reaffirmed. Learning of the case From this case, we learn that one person cannot be held in jail for the fault of another. Bail if available should be granted as early as possible. Asaram Bapu Sentenced To Life Imprisonment Till Death For Raping A Minor By Jodhpur CourtPage 26

The CourtroomLooks like Asaram Bapu just ran out of blessings. The self-styled godman has been sentenced to life imprison-ment till death by Jodhpur Court for raping a minor five years back. The decision was delivered in the make-shift courtroom at Jodhpur Central Jail where Asaram had been languishing since four years. Keeping in mindthe widespread violence which occurred at the time of sentencing of Baba Ram Rahim Singh on similar charges,security had been increased in areas around Asaram’s ashrams. Security at Jodhpur Central Jail was also in-creased.Facts of the CaseVictim studied in Asaram’s ashram in Chhindwara. When she fell ill her parents were informed that their childhas been possessed by evil spirits and they should meet Asaram for remedy. On 14 August 2013, Parents tooktheir daughter and traveled to Manai, Jodhpur to meet Asaram. On the night of August 15-16 parents of thegirls were asked to leave the girl behind and move out of the ashram by Asaram. The prosecution claims it wasthen when the crime was committed. The girl was also threatened to not to share the events of the night withanyone. She narrated the happenings of the night to her father who tried to meet Asaram in Delhi but couldnot. Thereafter a zero-FIR was lodged against Asaram and his aides which was transferred to Jodhpur. Asarambooked in August 2013 and arrested a month later. His request for bail was rejected 6 times. 3 times in Rajas-than High Court and three times in Supreme Court.Issues of the case1. Was Asaram and his aides were guilty of rape as defined under Indian Penal Code and other sections of POCSO(Protection of Children from Sexual Offences) Act and Juvenile Justice Act.2. What should be the appropriate sentence for such a crime?The decision of the CaseAsaram was charged under section 376 of Indian Penal Code, various section of the POCSO Act and JuvenileJustice Act. Special Judge Madhu Sudan Sharma, SC/ST Cases sentenced Asaram to life imprisonment till deathand further handed a term of twenty years each to his two aides namely Sanchita alias Shilpi and Sharad Chan-dra and acquitted other two accused namely Prakash and Shiva were acquitted. Public Prosecutor Pokar RamBishnoi on the issue of quantum of sentence argued that being a trustee of a religious and educational institu-tion, the way the accused sexually assaulted the victim as part of a conspiracy, there is need to give the strictestpunishment in the case.Followers of Asaram are deeply saddened by the decision. Father of the victim on other hand was satisfied withthe verdict.Learning of the CaseFrom this case, we learn that in a country governed by rule of law even godmen cannot escape the clutches oflaw. Law indeed has an extensive reach.Delhi Metropolitan Court HeldThat Double Tick on WhatsAppMeans Summon Has BeenDeliveredEarlier in March, the court had allowed the woman to summon her husband via WhatsApp, text messages ande-mail, after her counsel Debopriya Pal and Kunal Kumar told to the court that two previous attempts to servesummons to him have been failed. Page 27

Libertatem Magazine - Edition 40 In consent with the court’s direction, the woman petitioner also submitted an affidavit to the court stating that the mobile number and the e-mail address on which summons had been sent, belong to her estranged hus- band only. However, despite the summons been served, the respondent did not appear before the court. At this, the magistrate noted that the respondent is ‘very well aware of his summoning in the present matter.” In March, Pal and Kumar had suggested to the magistrate that the summons can be served via WhatsApp etc since summons sent from past eight months being returned, as the man is not staying at the last known address in Delhi. Advocate Kumar also remarked that it takes over two weeks for summons to be served to anyone outside India and the Ministry had raised objections, as the summons sent to the man in Australia has changed his address, and therefore they are left with no other option but to request the court to allow him to summon through WhatsApp, SMS and e-mail. Order In a unique case, the Delhi Metropolitian court has allowed a woman to serve summons to her estranged husband in Australia through WhatsApp. The court also noted that the ‘double tick’ showed on WhatsApp means that the summons was delivered to the recipient. The Metropolitan Magistrate Surabhi Sharma Vats while perusal of the copy of the document filed on record stated, “Prima facie shows that the copy of the summons has been delivered on the mobile number of the estranged husband. As for the instant summons, the Court held, “Perusal of copy of documents which are filed on record reveals “Double Tick” on the printout of the Whatsapp messages, which prima facie shows that the copy of the summons has been delivered to the mobile number of the respondent no.1. However, none has appeared on behalf of the respondent no. 1.” Gangster Chhota Rajan and 8 others convicted for Journalist J Dey’s murder Chhota Rajan on Wednesday 2nd May, 2018 was convicted of the brutal and shocking murder of Journalist Jyotirmay Dey which took place on June 11, 2011 near a marketplace in Powai, Mumbai. There were 14 people who were accused of this heinous crime of which two are still absconding, Vinod Asrani died in the meantime and 11 people stood trial for the murder. Facts of the case Journalist Jyotirmay Dey was a senior crime reporter and was working as a Editor (Investigations) of Midday. He had written a number of pieces on the famous gangster Chhota Rajan and his rivalry with erstwhile gang- ster and global terrorist Dawood Ibrahim. Reporter Dey had also planned to write a book (Chindi -- Rags to Riches) on Mumbai underworld and the nefarious activities of the various members. Chhota Rajan who was one of the 20 famous gangsters mentioned in the book who had started their lives as petty criminals and later on went on to rule the underworld of the Mumbai city took offence on his writings. He was especially angry when he was described as a “petty (chindi) criminal” and thought that Journalist Dey must have been working with his nemesis Dawood Ibrahim and hence was writing negative pieces on Rajan.Page 28

The CourtroomChhota Rajan, who grew up as Rajendra S Nikhalje, hired Satish Kalia, a contract killer for Rs 5 lakh accordingthe police to finish off reporter Dey. Kalia arranged a team of seven people to carry out the shooting. On thatfateful day of June 11, 2011 two motorbikes and a Qualis SUV started tailing Journalist Jyotirmay Dey when hewas returning home from work. Satish Kalia riding pillion on one of the bike fired five shots at Jyotirmay Dey.He was taken to nearby Hiranandani Hospital where he later succumbed to his injuries.The sensational crime became a shocking murder story and the irony was not lost on the public; a criminalreporter being killed and the underbelly of Mumbai’s criminal world was responsible of the brutal crime, astory straight from a Bollywood potboiler that rocked the whole nation. The police investigation begin alongwith Central Bureau of Investigation (CBI) being assigned the case as new facts came to light. Jigna Vora, theDeputy Bureau Chief of The Asian Age, Mumbai was arrested on November 25, 2011 on charges of aiding andabetting the murder as well as 9 other accused were nabbed by the police. Chhota Rajan was arrested fromIndonesia and deported to India after Interpol had issued a Red Corner Notice on November 2015.Court rulingThe chargesheet was presented to a special CBI Court on December 3, 2011 and additional charges werebrought against the accused by CBI later on. The case was heard by Special Judge Honourable Sameer Adkarwho was handling special Maharashtra Control of Organised Crime Act (MCOCA) cases. He was presentedwith the testimonies of 155 witnesses and heard the variety of depositions against the 11 accused. The accusedwere booked under Indian Penal Code pertaining to murder (section 302), criminal conspiracy (section 120(b))and destruction of evidence (section 204), and under provisions of the stringent MCOCA and the Arms Act.The prosecution reiterated the fact as to the blatant and brutal disrespect towards law and order displayed inthis crime. It was mentioned how public safety and freedom and rights were threatened with such obviouslawlessness as practised by the crimelords of the Mumbai underworld. They claimed that Journalism rep-resents “the fourth pillar of democracy” and killing a journalist for fulfilling his obligations and duties is adirect attack on the democracy and sovereignty of a country.Justice Adkar took into account every nuanced details of the case and found Chhota Rajan, Satish Kaliya, Abhi-jeet Shinde, Arun Dake, Sachin Gaikwad, Anil Waghmode, Nilesh Shendge, Mangesh Agawane, and Deep-ak Sisodia guilty of the murder of Journalist Jyotirmay Dey. Paulson Joseph and journalist Jigna Vora wereacquitted on all charges against them due to lack of evidence. He sentenced Chhota Rajan and the eight otheraccused to life imprisonment this afternoon at 4:30 p.m. A visibly satisfied Special Public Prosecutor PradepGharat observed, “This is the first time the mafia don has been convicted for life imprisonment in a major caselike murder.” ***************** Page 29

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