India Legal 21 August 2017

InvitationPrice
`50
NDIA EGALL STORIES THAT COUNT
` 100
I
www.indialegallive.com
Sreesanth: “It was
tough paying the bills’’
GST: Private
Concerns
Investigation:
School for Scandal?
ThecabinetclearsthewayforNRIstovotebyproxybutitraisesfearsthatitwill
compromisethesanctityoftheelectoralprocess.TheOppositionisreadyingto
challengetheproposalinparliamentandinthecourts.Whatarethe
implications?WithreportsfromDubaiandLondon
August21, 2017
TheNRIVote
BALLOT BOX

N a remarkable display of rebellion against President
Donald J Trump’s new immigration policies, the city
of Chicago, often called the gateway to the heart of
America, has filed a lawsuit against the US Depart-
ment of Justice challenging Attorney General Jeff
Sessions’ attempt to cut off federal funding to what
Trumpists called “sanctuary cities”.
The windy city’s natives include Barack Obama,
Oprah Winfrey, Al Capone, Nelson Algren, Mayor
Richard M Daley, Robin Williams, Harrison Ford, Benny
Goodman, Nat King Cole... they made some of the best
music, films, crime, politics. But even during the worst of
Chicago’s gang wars, the city’s burgeoning community of
working class immigrants from Europe and Asia and
Latin America had no fear from the Feds.
Today, as Trump pursues his campaign pledge of
“Make America Great Again”, American immigrant com-
munities—both legal and illegal—across metropolitan
areas cower in fear from the new Feds, called
ICE (Immigration and Customs Enforcement)
who are, as one report bluntly put it, “unpre-
dictable and brutal” in their swooping raids
and use of the fast-tracking deportation
machinery in which families are often torn
asunder and legal procedures are thrown
to the winds.
Last November, while covering
the US election, I wrote in India
Legal that Trump’s making
America “Great” again was
a code for making
America “White” again, a
subliminal appeal to
supra-nationalism and
white supremacist senti-
ments which has been the
unshakeable belief of a core group
of Americans which finally found a
national champion in Trump. To
them, the fact that America is no
longer totally white does not mat-
ter (African-Americans are now
13.5 percent of the US popula-
tion, and Latinos and Hispanics about 18 percent, while
Asian and other races constitute about 11 percent).
What counts is the supremacist syndrome, and the
new immigration proposals are nothing short of a clarion
call for Trump’s version of a long-overdue ethnic cleans-
ing in which the city and local administrations are being
arm-twisted to cooperate with ICE raids.
In taking the Justice Department to Court, Chicago’s
Mayor Rahm Emanuel whose grandfather, a Romanian
Jew, migrated to America, has fired a powerful ethnic
missile against Trump’s anti-immigrant policies.
The arm-twisting the Trump administration is resort-
ing to is the withholding of federal funds for law enforce-
ment such as purchase of police vehicles and essential
equipment for crime prevention to “sanctuary cities” like
Chicago, whose mayors refuse to cooperate with the goon
tactics of ICE and insist, rather, on the orderly rehabilita-
tion and legitimisation of migrants and their families.
Emanuel has challenged the Justice Department’s tactics
as unconstitutional in the absence of specific legislation
to change the immigration laws.
Last week, Trump backed such legislation amid acri-
monious debate. The new bill would not only cut in half
the one million migrants allowed into the country annu-
ally but also introduce a “merit system” under which high
educational qualifications and the ability to speak good
English would be new criteria for admission. Also the
preference given to families would no longer be automa-
tic. Indian families with American passports, for exam-
ple, would be able to bring in spouses or children under
specific safeguards and dependent, aged parents would
only be given one or two-year visas.
As an Indian-origin doctor living in Queens, New
York, for 30 years told me: “This will simply tear families
apart. A lot of us Indian Republicans who supported
Trump will campaign against him.”
But at this point, they need not bother. The bill is
unlikely to pass either House. Immigration, no matter
what the core ultra-right which helped Trump win feels,
is as American as apple pie and motherhood. Democrat
Mayor Emanuel who was once Obama’s White House
chief of staff, would never have been in the US if Trump’s
merit system had applied to his grandfather. Powerful
THE POLITICS
OF RANKLEMENT
Inderjit Badhwar
Letter from the Editor
I
4 August 21, 2017

Republican Senators Marco Rubio and Ted Cruz are the
sons of Cuban immigrants whose fathers spoke no
English and worked as daily wage labourers as they edu-
cated their children who would one day run for presi-
dent. And they did.
That’s the real American immigrant story, not the one
Trump is trying to tell, which is simply a version of immi-
gration apartheid. The spin the Trumpists are trying to
give this initiative is that it is aimed at curbing cheap
immigrant labour streaming in and driving down domes-
tic wages and depriving Americans of jobs.
B
ut this theory does not pass muster. The reality is
that the American working population is ageing
and declining and migrants are filling only low
wage jobs of scavenging, dishwashing, digging, garden-
ing, cooking farming and fishing which nobody else
wants. Also, they expand the earning base and conse-
quently purchasing power and help expand the American
economy. Grassroots politicians like Emanuel know how
massively the poor working class immigrants have con-
tributed to the growth and welfare of Chicago.
As of now, unemployment in the US is less than 4
percent. And more than 5 million jobs are lying vacant,
mostly in blue collar, unskilled professions. Small wonder
that The New York Times called Trump’s bill “A Senseless
Immigration Proposal”. In a powerful and perspicacious
piece entitled “Trump and the Policies of White
Resentment”, Prof Carol Anderson of Emory University
concluded in the Sunday Review:
“That white resentment simply found a new target
(immigration) for its ire is no coincidence: White identity
is often defined by its sense of being ever under attack,
with the system stacked against it. That’s why Trump’s
policies are not aimed at ameliorating white resentment,
but deepening it. His agenda, fundamentally, is not about
creating jobs or protecting programmes that benefit
everyone including whites; it’s about creating purported
enemies and then attacking them.”
Anderson calls this white resentment myopic and
selfish because it refuses to acknowledge that when the
larger nation thrives, so too do the whites. “Instead it
favours policies and politicians that may make America
white again, but also hobbled and weakened a nation
that has squandered its greatest assets—its people and
its democracy.”
Last week’s Quinnipiac poll showed Trump’s popular
ratings hit a new low even among his hardcore white
supporters. Some 61 percent disapproved of the way he
was conducting himself. The New York Times comment-
ed: “Trump’s recent messages opposing transgender peo-
ple in the armed forces, encouraging aggressive behav-
iour by the police, have been seen as efforts to recapture
that base. His support for the immigration bill is more of
the same.”
It is also an assault on an endearing American core
value that stands out as a moral compass to the world.
They are inscribed under the Statue of Liberty which
beckons immigrants to American shore with these stir-
ring welcoming words: “Give me your tired, your poor,
your huddled masses yearning to breathe free, the wret-
ched refuse of your teeming shore. Send these, the tem-
pest-tossed to me. I lift my lamp beside the golden door.”
| INDIA LEGAL | August 21, 2017 5
Twitter: @indialegalmedia
Website: www.indialegallive.com
Contact: editor@indialegallive.com
A POTPOURRI OF DREAMS
(Left) US President Donald Trump; In Los Angeles, at a US
naturalisation ceremony, immigrants from different countries
swear the oath to become US citizens
UNI

ContentsVOLUME. X ISSUE. 40
AUGUST21,2017
OWNED BY E. N. COMMUNICATIONS PVT. LTD.
A -9, Sector-68, Gautam Buddh Nagar, NOIDA (U.P.) - 201309
Phone: +9 1-0120-2471400- 6127900 ; Fax: + 91- 0120-2471411
e-mail: editor@indialegalonline.com
website: www.indialegalonline.com
MUMBAI: Arshie Complex, B-3 & B4, Yari Road, Versova, Andheri,
Mumbai-400058
RANCHI: House No. 130/C, Vidyalaya Marg, Ashoknagar,
Ranchi-834002.
LUCKNOW: First floor, 21/32, A, West View, Tilak Marg, Hazratganj,
Lucknow-226001.
PATNA: Sukh Vihar Apartment, West Boring Canal Road, New Punaichak,
Opposite Lalita Hotel, Patna-800023.
ALLAHABAD: Leader Press, 9-A, Edmonston Road,
Civil Lines, Allahabad-211 001.
Editor Inderjit Badhwar
Senior Managing Editor Dilip Bobb
Deputy Managing Editor Shobha John
Executive Editor Ajith Pillai
Contributing Editors Ramesh Menon
Parsa Venkateshwar Rao Jr
Associate Editors Meha Mathur,
Sucheta Dasgupta
Deputy Editor Prabir Biswas
Staff Writer Usha Rani Das
Senior Sub-Editor Shailaja Paramathma
Art Director Anthony Lawrence
Deputy Art Editor Amitava Sen
Senior Visualizer Rajender Kumar
Graphic Designer Ram Lagan
Photographers Anil Shakya, Bhavana Gaur
Photo Researcher/ Kh Manglembi Devi
News Coordinator
Production Pawan Kumar
CFO
Anand Raj Singh
Advertising
Valerie Patton
Mobile No: 9643106028, Landline No: 0120-612-7900
email: marketing@encommunication.org
Circulation Manager
RS Tiwari
Mobile No: 8377009652, Landline No: 0120-612-7900
email: indialegal.enc@gmail.com
PublishedbyProfBaldevRajGuptaonbehalfofENCommunicationsPvtLtd
andprintedatAcmeTradexIndiaPvt.Ltd.(UnitPrintingPress),B-70,Sector-80,
PhaseII,Noida-201305(U.P.). Allrightsreserved.Reproductionortranslationinany
languageinwholeorinpartwithoutpermissionisprohibited.Requestsfor
permissionshouldbedirectedtoENCommunicationsPvtLtd.Opinionsof
writersinthemagazinearenotnecessarilyendorsedby
ENCommunicationsPvtLtd.ThePublisherassumesnoresponsibilityforthe
returnofunsolicitedmaterialorformateriallostordamagedintransit.
AllcorrespondenceshouldbeaddressedtoENCommunicationsPvtLtd.
Editor (Content & Planning) Sujit Bhar
Senior Content Writer Punit Mishra
(Web)
Technical Executive Anubhav Tyagi
6 August 21, 2017
The NRI Ballot
The cabinet has cleared the way for them to vote by proxy, but will it undermine the
sanctity of the electoral process? With reports from London and Dubai
14
LEAD
Hope for a Fresh Innings
With the Kerala High Court lifting the life ban on S Sreesanth, will the BCCI let him play for
India again? The cricketer tells India Legal that all he dreams of is one good season
24
Consent and Compromise
Gender and behavioural stereotypes continue to affect rape judgments, especially where
marriage is involved, as evidenced by a Delhi High Court judge’s contradictory orders
22
COURTS

REGULARS
Followuson
Facebook.com/indialegalmedia
Twitter:@indialegalmedia
Website:www.indialegallive.com
Contact:editor@indialegallive.com
Ringside............................8
Delhi Durbar......................9
Courts.............................10
National Briefs .........12, 21
Media Watch ..................49
Satire ..............................50
Cover Design and Illustration:
ANTHONY LAWRENCE
Fault in the Network
Private players own majority stake in this entity operating the
GST regime. it could hit data security and disrupt the economy
30
INVESTIGATION
Law and the Sportsperson
The court has overruled BCCI, but as long as incidents stay
confined to the playfield, sporting authorities will have the last say
26
Milking the
Loopholes
Studies have found the presence of
coliform bacteria in milk. This despite the
apex court recommending an amend-
ment to award life terms to adulterators
CONSUMERWATCH
46
When Judges Revolt
In a surprising move, justices in some high courts are refusing frequent postings,
and resorting to protests and resignations against the perceived “injustice” of it all
FOCUS
43
School of
Hard Knocks
The Supreme Court’s recent
order quashing the UP gov-
ernment’s move to regularise
shiksha mitras has jeopar-
dised their careers, sparking
protests and suicides
EDUCATION
38
Keep Your
Shirt On
The Himachal and Bombay
High Courts do not appear to
be crossing the bounds of law
in directing a proper dress
code for litigants, the public
and officials appearing in court
34
SPECIALSTORY
Fair or Foul?
A row has erupted over the job appointment of Sangita Maliwal,
mother of Swati Maliwal, Delhi Women’s Commission head
28
PROBE
Facilitating
Higher Learning
India Legal chairman Pradeep Rai inau-
gurated an e-library at Benaras Hindu
University, his alma mater, when he was
there to attend an alumni gathering
CAMPUS
42
Just Weed out Abuse
Legalising medical marijuana would prove a blessing for the
many in need, provided it is kept from falling into wrong hands
36
MEDICINE

8 August 21, 2017
“
RINGSIDE
I would say that the Congress is
facing an existential crisis.… The
sultanate has gone, but we behave
as if we are sultans still. We have
to completely redo the way of
thinking, the way of acting, the
way of projecting, the way of
communicating.
—Congress leader Jairam Ramesh,
in an interview to PTI
I am a son of India.
There’s no freedom (in
Tibet). I don’t like it
without freedom….
It’s better to stay in
Indian heat.
—The Dalai Lama, on
being asked whether he
would like to return to
Tibet, during his speech
on the Importance of
Independent Press and
Ethics in Delhi
The countdown to
a clash between
the two forces has
begun, and the
clock is ticking
away the time to
what seems to be
an inevitable
conclusion.
—The China Daily
editorial
Breakdown of Indian values,
breakdown of the ability of the
authorities ... to be able to
enforce what should be normal
law-enforcing work and overall
the very fact that Indianness of
any citizen being questioned, is a
disturbing thought.
—Outgoing Vice-President Hamid
Ansari, on Rajya Sabha TV
We have heard of genetic
engineering. This is worse!
—Author Shobhaa De, on the
removal of content on Mughals in
the history textbooks for classes
VII and IX in Maharashtra, on
Twitter
It is none of his business, it is my
business and my family’s what I
do and where. Can the men not
control their urges at night? Why
am I being questioned?
—DJ Varnika Kundu, who was
allegedly stalked by Haryana BJP
chief Subhash Barala’s son in
Chandigarh, on NDTV
This is not just my victory. It
is a defeat of the most blatant
use of money power, muscle
power and abuse of state
machinery. BJP stands
exposed of personal vendetta
and political terror.
—Congress leader Ahmed
Patel, on winning the
hotly-contested Rajya Sabha
seat, on Twitter
For us in the Congress, the
Quit India Movement is a
reminder that brute force can
and must be resisted in the
name of freedom; that even
when the odds appear to be
against us, and the adversary
appears all-powerful, we can
succeed if we persevere in
fighting for the India we
believe in and cherish.
—Congress president Sonia
Gandhi, speaking to the
Congress Working Committee
on the eve of 75th anniversary
of the Quit India Movement

An inside track on
happenings in Lutyen’s Delhi
Delhi
Durbar
FAKE NOTES
It has been some months since Arun
Jaitley has been saddled with two cru-
cial ministries, during a time when the
confrontation with China is assuming
serious proportions. Then there was
the sudden demise of environment
minister Anil Madhav Dave. Now
Venkaiah Naidu has left the cabinet
and Smriti Irani has been given tempo-
rary charge of I&B. Why then, many
are asking, is the PM taking so long to
induct new ministers? The impending
reshuffle was scheduled for the week
after Independence Day but could be
delayed further for political reasons.
With Amit Shah’s term as BJP presi-
dent coming to an end, plans are
being put in place with an eye on the
2019 general elections. Modi has to
induct someone from the JDU now
that the party has joined the NDA.
Shah was working hard at getting the
AIADMK to join the NDA which means
cabinet allurements will be on offer.
Then, politicians from states going to
the polls in the coming months need
to be included. The reshuffle is on the
cards but could yet be delayed.
Immediately after the Income
Tax and CBI raids on
Karnataka Congress leader
and industrialist DK
Shivkumar while he was host-
ing the party’s Gujarat MLAs
in a fancy resort, TV channels
and news websites which
generally toe the govern-ment
line, splashed a video grab of
a locker containing bundles of
currency notes and bags full
of cash lying on the floor.
Even National Security Adviser
Ajit Doval displayed the photo
on his Twitter handle while it
went viral on social media.
The TV channels said it
showed unaccounted money
found in Shivkumar’s home
and slammed the Congress
for bribing MLAs. It was left to
some independent news out-
lets to point out that it was
actually a photograph taken
during the Income Tax raids
on a Delhi law firm T & T in
December, 2016. The same
picture had been uploaded by
some journalists on social
media back then with the cap-
tion: “Video of over `8 crore
cash seized by Delhi police
from T & T law firm in Delhi’s
GK”. Fake notes and fake
news is the new currency.
There is now some clarity on
why Ram Nath Kovind was
plucked out of relative
obscurity and made
President of India.
Apparently, his elevation to
the highest office in the land
was reward for his contribu-
tion to bringing the BJP back
to power-sharing in Bihar. It
appears that Nitish Kumar,
frustrated by Lalu Prasad’s
constant interference and
being saddled with Lalu’s
sons in his cabinet, needed
someone to confide in, and
he turned to Kovind, then
governor of Bihar. Kovind
convinced Nitish that the
only way he could get rid
of the Lalu yoke was to join
hands with the NDA. Nitish
was given the promise of
non-interference in gover-
nance and Kovind then
informed the Prime
Minister and Amit Shah
that Nitish was ready
to take the plunge.
Kovind was told he
would be rewarded.
The rest is history.
JUST REWARDS
RESHUFFLE ON
THE CARDS
It’s a huge advantage these days for
bureaucrats to have a stint in Gujarat
on your CV. The PMO has a num-
ber of them, led by PK Mishra
who was Modi’s right hand man
when he was Gujarat chief minis-
ter. There is talk of Revenue
Secretary Hasmukh Adhia
(right), the Gujarat cadre
officer who helmed the
GST project, being the next cabinet
Secretary. Now, another IAS officer
who served in Gujarat has been given
the plummest of postings. S Aparna,
has just been appointed to the
post of Executive Director, World
Bank, where she will represent
India, Bangladesh and Sri Lanka.
Aparna had a long stint in
Gujarat, including princi-
pal secretary to ex-CM
Anandiben Patel.
THE GUJARAT EFFECT

Not satisfied with the affidavit
submitted by the Jammu and
Kashmir government citing reasons
for the delay in setting up a Mino-
rity Commission in the state, the
Supreme Court, however, gave one
last opportunity to the centre and
the state. They were given a time-frame
of three months.
The Court was responding to a PIL
filed by a Jammu-based lawyer Ankur
Sharma. Sharma objected to the benefits
doled out by the state government to
Muslims despite being in a majority and
alleged that it was illegal. This, according
to his PIL, was happening because there
was no Minority Commission in the state
and he wanted it to be formed under a
new legislation. The PIL also sought an
investigation into the matter, and a direc-
tion to the state government to identify
and notify religious and linguistic minori-
ties, among other demands.
The state government had pleaded
that it did not have the time to attend the
issue as it was preoccupied with
Amarnath Yatra and other law and order
problems. But the Court lambasted it for
taking its orders lightly. It had earlier asked
both the centre and the state government
to sit together and arrive at a solution.
The centre told the Court that discus-
sions with the state government had rea-
ched an advanced stage. It had earlier
informed the Court that a high-level
committee comprising officials of the
state government and the centre had
been formed.
The Supreme Court turned down a
request for a direction to the centre to
make Yoga compulsory in schools for
classes I to VIII across India. The Court
observed that it could not dictate the cur-
riculum for schools.
The Court was reacting to two sepa-
rate pleas—from lawyers Ashwini Kumar
Upadhyay and JC Seth—in this regard.
Seth argued that teaching Yoga was part
of the fundamental right under Right to
Education (RTE) ACT 2009 and National
Curriculum Framework and Upadhyay
wanted the Court to ask the HRD ministry,
NCERT, NCTE and CBSE to “provide” Yoga
textbooks in schools.
The centre contended that there was
no reference to Yoga in the RTE Act and
thus could not be enforced. Also, it argued
that education was part of the Concurrent
List and under the control of states and
UTs. The onus lay on them to enforce
Yoga, it claimed. The HRD ministry, how-
ever, informed the Court that Yoga was
indeed included in health and physical
education in schools for classes 1 to 10.
Response
sought on
Article 370
Courts
10 August 21, 2017
The Supreme Court rec-
ently asked the centre
and the Jammu and Kashmir
government to reply whether
Article 370, which confers
special status to Jammu and
Kashmir, was invalid and
needed to be scrapped.
A CJI-headed bench of
the apex court was respond-
ing to a plea filed by Anil
Kumar Jha, appearing on
behalf of Kumari Vijayalak-
shmi Jha. The petitioner
claimed that Article 370 had
no meaning after the Jammu
and Kashmir’s constituent
assembly was dissolved in
1957, and its existence was
against the basic structure of
the constitution.
There was no sanction
from the president or par-
liament or even the centre
for its continuance, the
petition claimed. It should
have lapsed with time,
Jha argued.
The petitioner approa-
ched the Supreme Court
after the Delhi High Court
rejected her plea in April
while referring to a Supreme
Court order which had dis-
missed it in July 2014.
Set up
Minority
Commission
in J&K
Can’t order Yoga in
schools

Congress MP and former environment min-
ister Jairam Ramesh has approached the
Supreme Court, alleging that some sections of
the Finance Act 2017 had weakened the NGT
Act 2010. He pointed out that the centre had
unbridled powers under the Finance Act to take
a call on the composition of the green tribunal
and that includes qualifications, appointments,
terms of office, salaries and even termination
by nullifying provisions of the NGT Act. This
was against the basic framework of the consti-
tution, Ramesh argued. The apex court asked
the centre to respond on issues raised by the
former minister.
BattingforNGTAct
In a big relief for “Govindas” this Jan-
mashtami (August 15) who enthusi-
astically participate in the Dahi Handi
festival, especially in Maharashtra, the
Bombay High Court accepted the sta-
te government’s assurance that chil-
dren aged 14 years will participate in
the festival, but not below it.
The Court, however, refused to
pass any fresh order on the age of
participants as well as height of hum-
an pyramids on the ground that the
onus lay on the legislature to take the
call on these matters.
The Court had in 2014 barred chil-
dren below 18 years from participat-
ing in the sport—deemed “adventur-
ous” by the Maharashtra govern-
ment—and even fixed the height of
the pyramid at 20 feet. The state gov-
ernment took the matter to the Sup-
reme Court, which referred it back to
the High Court for a fresh hearing.
However, before disposing off the
PIL, the Court pointed out that safety
nets, belts and cushions must be pro-
vided to ensure that there is no fatal
effect on participants in case they fall.
An ambulance must be kept ready
and participants insured for a maxi-
mum amount of `10 lakh, it observed.
The Rajya Sabha Secretariat was taken to
task by the Delhi High Court for wasting the
judiciary’s time over recovery of an insignifi-
cant amount from an ex-employee. The
Secretariat has been fighting the case in the
trial court, the appellate court and now in the
High Court. The case had been dragging on
for the past 10 years. The Court also ruled
that `1 lakh be paid as compensation.
The Secretariat had gone to courts for get-
ting back from PS Verma `39,010, claiming it
was overpaid to him. The High Court was
extremely unhappy with Verma being hounded
for such a paltry amount.
Referring to a Supreme Court order that
ruled that employees may not be forced to
give back the amount they had gained wrong-
fully, the Court pointed out that there were no
allegations of fraud against Verma. It also
noted that Verma himself had been asking the
Secretariat to take “corrective action” which
the Secretariat did so “only partially”. The
case was baseless, the Court concluded.
RajyaSabhaSecretariat
criticised
— Compiled by Prabir Biswas
The Supreme Court agreed to exam-
ine whether girls married in the age
group of 15 to 18 years were affected
as a result of sexual intercourse. It
was hearing a plea from an NGO
which said that the age of consent for
married girls be fixed at 18 years.
As per law, a husband can have
sex with his wife aged between 15
and 18 years and it would not be con-
sidered rape under exceptions in
Section 375 of the IPC that defines
this crime. The legal age of marriage
is 18 years. On the other hand, as per
the POCSO Act, any girl under the age
of 18 is considered a minor and any
sexual activity with her is illegal.
While citing this discrepancy and
objecting to the exception, the NGO
argued that it affected the girl within
the age bracket of 15 to 18 years and
violated her right to life and personal
liberty. The Court, while admitting that
there were glaring disparities in law,
wanted to know whether it could “cre-
ate an offence” for forceful sexual
activity by husbands with their wives
aged between 15 to 18 years.
The centre contended that child
marriages were a reality
and judicial intervention
was uncalled for con-
sidering that marriage
was considered sacro-
sanct. The petitioner
was asked to submit
instances where sexual
activity pertaining to
married girls aged 15-
18 had taken a toll on
their health.
The question of
“marital rape”
Some relief for
Govindas

Briefs
12 August 21, 2017
The Pension Fund Regul-
atory and Development
Authority (PFRDA) has written to
the government seeking
approval to invest 50 percent of
the funds contributed by gov-
ernment employees, under the
flagship National Pension
Scheme (NPS), in stocks. As of
now, only 15 percent of such
funds are placed in the stock
markets. The NPS now has a
corpus of `198,000 crore, with
87 percent being contributed
by government employees.
The PFRDA would be able to
invest over `86,000 crore in the
Indian stock market if the gov-
ernment approves the propos-
al—an additional `57,000 crore
in total.
Plea to invest 50%
of govt pension
fund in market
—Compiled by Lilly Paul
After a high-stakes political drama in
Gujarat, the BJP’s Amit Shah and Smriti
Irani were elected to the Rajya Sabha from the
state along with Ahmed Patel of the Congress,
who retained his seat by a slim margin of 44
votes. A total of 176 MLAs voted in the
crucial elections.
However, two votes, those of Congress
MLAs Bhola Bhai Gohil and Raghav Bhai
Patel, were declared invalid by the Election
Commission based on a complaint filed by the
Congress. According to the plaint, the two had
turned rebel and violated Rule 39A and Rule
39AA under the Conduct of Elections Rules
1961 by disclosing their choice to an un-
authorised person, other than the party’s elec-
tion agent.
The Congress’s Randeep Surjewala and for-
mer Union minister RPN Singh had first
approached the EC with the complaint. The
BJP responded, sending a team comprising
Finance Minister Arun Jaitley, Law Minister
Ravi Shankar Prasad and Commerce Minister
Nirmala Sitharaman to the Commission.
According to them, the decision of the return-
ing officer who oversaw the polling was final.
The Congress then met the EC a second time
with a team headed by P Chidambaram. After
examining the video footage of the polls, the
EC overruled the decision of the returning
officer and declared the two votes invalid, and
to be segregated at the time of counting. At
1.50 am, Patel tweeted, “Satyameva Jayate”,
saying he has won.
AhmedPatelwinsRS
pollsamidhighdrama
Chief Information Commissioner
(CIC) RK Mathur has reconstituted a
larger bench to hear complaints against
six parties—BJP, Congress, BSP, NCP,
CPI and CPI(M). These parties have
reportedly not been complying with the
June 2013 CIC order that brings them in
the ambit of the Right To Information
Act. The new bench comprises Mathur
himself and Sharat Sabharwal, Manjula
Prasher and Divya Prakash Sinha, but
Prof Sridhar Acharyulu who headed the
earlier bench is missing. It had to be
reconstituted after Bimal Julka, who was
part of the previous bench, recused him-
self from hearing the case.
The Madhya Pradesh High Court
has declined to interfere in the
matter of alleged copyright violation
of a song used in the Akshay Kumar-
starrer movie Toilet: Ek Prem Katha.
Naveen Joshi, a writer, has filed a
petition claiming he has written a
song which has the opening lines, Hus
Mat Pagali Pyar Ho Jayega, which is
registered with the Screen Writers
Association, and that it was used in
the film, violating his copyright on it.
But the producer has claimed the
song is an original work, leading the
court to dismiss the petition.
New CIC bench to hear
complaints against parties
No copyright violated in
Toilet: Ek Prem Katha

Required for the websites
EN Communications Pvt Ltd is a Noida-based news organisation which runs the
popular Hindi news television channel, APN News, and brings out a weekly magazine,
India Legal. As part of our expansion plans, we are looking for journalists and content
writers for our websites, APN News and India Legal, as well as for the magazine.
For India Legal Magazine
Two senior sub-editors for general copy
One senior sub-editor with an understanding of legal contents and issues relating to law and courts
Ten content writers for the web with 1-3 years’ experience.
Two content writers who can write on court and legal matters.
Two translators who can translate from Hindi to English and from English to Hindi.
Applicants must meet the following criteria:
Must be able to write simple, correct English
Should be able to edit, write and rewrite reports
Should be familiar with internet and able do some basic search/research on the web
Previous experience in media/social media will be a prime consideration
We are looking for young, dynamic media professionals who can perform under deadline pressures and possess the
multi-tasking skills required for today’s journalism. Writing and reporting original stories and copy, with a strong
emphasis on legal matters, will be the basic requirement. Experience in the use of social media will be an added
advantage.
Today’s journalists are required to come up with original ideas, report and research, and produce stories that are
impactful and also use the website and social media—Facebook, Twitter, etc—to expand the reach of the story.
We also require sub-editors who are able to edit copy to the magazine’s requirements and are proficient at proof
reading and spell checking.
For the positions available in India Legal magazine, a command of the English language is an essential requirement, as
is some experience of magazine production and a good understanding of social media.
Salaries are negotiable.
Applicants should send their CV’s to
Editor, India Legal
A-9, Sector 68, Gautam Buddh Nagar, Noida (UP) 201309
Covering envelopes should be clearly marked Application for India Legal/Web Team
Or
Contact: hr@encnetwork.com

Lead/ Proxy Voting
Thoughthecabinethasclearedthisproposal,therearefearsthatitwillcompromise
thesanctityoftheelectionprocess.CantheElectionCommissionensurethatthe
proxycaststheballotaccordingtotheelector’swishorthatapoliticalpartydoesn’t
influencethedecision?
By Puneet Nicholas Yadav
The NRI Vote
SOARING AMBITIONS
A large number of
Indians seek
employment in the
construction sector in
the Middle East
14 August 21, 2017
Facebook

Election Commission of India, told
India Legal: “The issue at hand was
whether or not we can give the right to
franchise to over one crore Indians liv-
ing overseas who continue to retain
their Indian citizenship in a manner
which allows them to also practice that
right conveniently. The government
decided that proxy voting was the way
forward. But yes, it could compromise
the sanctity of the voting process beca-
use we will have to assume that the
proxy is voting according to the wishes
of the elector.”
And though their numbers may not
seem sizeable, the fact remains that in
states such as Punjab, Gujarat and
Kerala with a high population of NRIs,
they could well swing the votes.
Wilfred was part of the Committee
for Exploring Feasibility of Alternative
Options for Voting by Overseas Electors
that was set up in 2014 on the instruc-
tions of the Supreme Court. He said that
the decision to allow proxy voting—one
of the options put forth by the Commi-
ttee—was taken as the choice before the
Commission was “to choose between no
voting rights for NRIs and involving
them in the election process”.
But then, Wilfred’s assertion is only
partly correct. Former Chief Election
Commissioner (CEC), SY Quraishi, in an
article for The Wire, pointed out that in
2010, the then Prime Minister, Dr
Manmohan Singh, had announced at
the 8th Bharatiya Pravasi Diwas that
from the following year, NRIs would be
able to vote—an announcement that
“came out of the blue for the EC”.
Quraishi said the government amended
the Representation of the People Act,
1950, in February 2011, adding a new
section, 20A, that allowed NRIs to
register in the electoral rolls of their
HE recent decision of the
cabinet to allow Non-Resi-
dent Indians (NRIs) to
cast their votes in elections
—federal and provincial—
through a proxy chosen
before each new poll appears trouble-
some. It isn’t something that envisages a
simple change of policy but a change in
the way policymakers are elected. The
cabinet’s decision—which will still take
months, perhaps more, before it can
actually become law and be put into
practice—has triggered a debate among
stakeholders, political and others, on
whether allowing this proxy voting com-
promises the sanctity of the voting
process. This facility was hitherto grant-
ed only to Armed Forces personnel.
So, does the cabinet’s move to allow
some 1.16 crore NRIs proxy voting have
any mechanism to ensure that the proxy
casts the ballot according to the elector’s
wish or that the elector isn’t unduly
influenced by political parties to vote in
their favour? It appears that the answer,
for now, is No.
KF Wilfred, principal secretary,
WOOING NRIS: (Above) Prime Minister
Narendra Modi interacting with Indian
students in France in April 2015;
(Left) Prime Minister Manmohan Singh had
announced at the 8th Pravasi Bharatiya
Diwas in 2010 that NRIs would be allowed
to vote
T
UNI
PIB

constituency if they had not taken citi-
zenship of any other country. But unlike
the proxy voting system, the amend-
ment needed NRIs to personally travel
back home to their constituency in India
to cast their vote.
It remains unclear whether the Modi
government would do away with the
option of allowing NRIs to cast a “direct
vote” and replace it entirely with the
proxy vote system. But what is certain is
that the RP Act will need to be amended
once again. And this is where political
players opposed to the cabinet’s propo-
sal come in.
T
he Committee’s report on voting
rights for overseas electors point-
ed out that the Congress, Left
parties and the Bahujan Samaj Party
were all against granting proxy voting
rights to NRIs. The Congress is also
likely to reach out to more parties for a
united opposition to any attempt for
amending the RP Act.
Former Congress MP and party spo-
kesperson Manish Tewari said: “Allow-
ing proxy voting for NRIs will have a
whole set of problems, which is why we
didn’t favour it even when we were in
power. Veerappa Moily (then minister
for Law and Justice) initiated the system
of allowing overseas Indians to get enro-
lled as voters and come to India to cast
their votes in elections. If the govern-
ment now wants to bring in proxy vot-
ing, it will first have to move an amend-
ment to the RP Act in parliament and
parties opposed to the move, like ours,
will ensure that the amendment falls.”
Tewari also refers to an argument
that was articulated by several critics of
the proxy voting proposal, including
Quraishi and former CECs N Gopala-
swamy and TS Krishnamurthy. He said:
“If you can allow proxy voting for NRIs
on the ground that they are unable to
exercise their franchise because they are
miles away from home, then why not
have the same provision for lakhs of
migrant workers within India who face
the same problem?”
He added: “You cannot have different
strokes for different categories of peo-
ple… this would force someone to chal-
lenge the move in a court of law over
rights of a citizen.”
PROUD TO BE AN INDIAN: People of
Indian origin watch floats go by during
the India Day Parade in New York City
in August 2016
Lead/ Proxy Voting
H
ow many of my fellow coun-
trymen know that most of 1.4
million Armed Forces person-
nel have not been voting in our
national elections? During my more
than 28 years of my service in the
army, only postal voting system
existed. It was so poorly organised
that I received postal ballots only
twice in my entire service. Nobody
really cared about it; not even our
apolitical Armed Forces. Most of
the troops deployed in remote areas
along the border or fighting insur-
gencies probably had more press-
ing priorities.
However, the proxy voting system
for the Armed Forces was introduced
on September 22, 2003. But, the
bureaucratic procedure discouraged
many soldiers from using it. It had all
the weaknesses of the postal ballot
system, with added chances for
political mischief considering sol-
diers served in far-flung areas with
poor connectivity.
In 2009, stung by growing feel-
ings of being shortchanged by suc-
cessive Pay Commissions, the
Armed Forces probably realized that
unless they exercised their voting
power, they would continue to be
sidelined by policymakers. In
January 2009, the media reported
that the chiefs of the army, navy and
air force encouraged their personnel
to register themselves in the Election
Commission office in the area of
their posting.
The “One Rank One Pension” by
veterans probably helped add value
to their vote. But it was only on Mar-
ch 24, 2014, that the EC decided to
permit service personnel to vote at
their place of posting in the general
elections by treating them as ordi-
nary citizens. It took 70 years after
Independence for the nation to rec-
ognise service personnel as ordinary
citizens! Truly Mera Bharat Mahan!
—Col R Hariharan
ArmedForces
VoteMatters
16 August 21, 2017

which have military rule or a sort of
monarchy wouldn’t appreciate the idea
of their people watching citizens of
some country lining up to vote”.
T
he manner in which the proxy
will be selected remains unclear.
“As of now, we haven’t chalked
out any parameters for who can be a
proxy. Perhaps the law ministry is giving
it a thought. For now, all we know is
that the elector must first register as a
voter, following which he has to appoint
a proxy who must be a registered voter
in the elector’s constituency. Once that
is done, the elector can inform the proxy
of who he wants to vote for. We hope the
proxy will cast the vote as instructed,”
said Wilfred.
The proxy for an NRI will have to
be appointed before each election,
unlike proxies for Armed Forces per-
sonnel who are appointed till such a
time when the right to proxy is revoked
by the elector. However, the NRI can
Asked if the EC was prepared to let
migrant workers in India have the same
voting rights as NRIs, Wilfred said: “As
of now, that is not possible because we
don’t even have a mechanism to find out
how many migrant workers there are
across India…. Perhaps with Aadhaar
and other means of forming a central-
ized Citizen Registry and databank, this
may be possible but I don’t see it hap-
pening anytime soon.”
In fact, even the NRIs for whom the
government is willing to take the risk of
what Wilfred said was “compromising
the sanctity of the voting process”, don’t
seem too enthused by the proxy voting
proposal.
Thomas Abraham, chairman of the
Global Organisation of People of Indian
Origin, said: “While we welcome the
move to help NRIs to vote in elections,
it would have been better if we could
vote directly instead of using a proxy. A
direct vote would be more transparent
and people won’t have the fear of their
franchise being manipulated.” Abraham
was among several NRIs in Washington
who recently participated in an interac-
tion conducted by Deputy Election
Commissioner Umesh Sinha to discuss
the proxy voting proposal. He said that
the EC should have explored the possi-
bility of allowing NRIs to vote at Indian
Missions in their countries or using
internet voting further.
But Wilfred said that allowing Indi-
ans to vote at Indian Missions abroad
was not feasible. “We had consultations
with the Ministry of External Affairs
about this but they said that several mis-
sions don’t have adequate space to set
up polling booths. Manpower too would
be an issue. Besides, diplomatic enclaves
in most foreign countries aren’t easily
accessible for common people,” he said.
A senior official said on condition of
anonymity that a view in the EC was
that if India allowed NRIs to vote at its
missions abroad, “several countries
where democracy isn’t absolute or those
“TherecanbenoguaranteeofNRI
votersexercisingtheirvoteinafree
andfairmannerastherecanbeno
checkoncoercionorinducementsby
theemployersandsupervisors.”
SYQuraishi,FormerChiefElection
Commissioner
“IfyoucanallowproxyvotingforNRIs
onthegroundthattheyaremilesaway
fromhome,thenwhynothavethe
sameprovisionforlakhsofmigrant
workerswithinIndia?”
ManishTewari,Congress
spokesperson
“Whilewewelcomethemove,adirect
votewouldbemoretransparentand
peoplewon’thavethefearoftheir
franchisebeingmanipulated.”
ThomasAbraham,chairman,
GlobalOrganisationofPeopleof
IndianOrigin

HE relationship between
NRIs and their home coun-
try has not been a happy
one. Based on suspicion,
distrust and a sense of envy
on one side and contempt
on the other (highly interchangeable),
the chasm has widened with great help
from the corrosive indifference of the
political firmament, shunning by the
media and negative feed to public per-
ception. In return, tangible arrogance is
used by the NRI as a defense mecha-
nism against the hostility he perceives
on the home front.
Much of the peaks in these misun-
derstandings are due to NRIs feeling let
down and this can be directly connected
to their not being a vote bank. Between
those Bharati Divas circuses, the many
visits by Indian VIPs and the shibbo-
leths and sermon waters they toss back
before doing their shopping and collect-
ing gifts, the deceit and hypocrisy and
the litter of broken promises have left
NRIs disconsolate.
Even the clumsy effort made to give
the right of franchise two years ago was
comical because they had to come in
person to cast their vote. Of the 32 mil-
lion Indians living abroad in every con-
tinent and impacting the world, only
10,000 made it for the general election
and that was also because their visit
probably coincided with vote day. Agai-
nst this and keeping in mind that 70
GRAND GESTURE: Indian Republic Day ce-
lebrated at Burj Khalifa in Dubai this January
choose the same person to act as proxy
for every election.
Wilfred said that no change was pro-
posed for the voting rights of Armed
Forces personnel. “They have the option
for proxy voting as well as voting thro-
ugh postal ballot. But if an elector
chooses one, he can’t opt for the other
and if a proxy fails to cast the vote for
some reason, the elector can’t say that
he wants to vote through postal ballot.
There will be no change in this system
as of now,” the EC official said.
There’s much that the EC, and the
Modi government, still need to think
about on proxy voting by NRIs. Quraishi
advised: “The EC has always treaded
with caution…. Reckless adventurism in
as sensitive a matter as elections is
fraught with serious consequences.”
But then, as Wilfred grudgingly
admitted: “When the then Union gov-
ernment had decided to allow NRIs to
vote, the EC was opposed to the move….
We just had to follow because the gov-
ernment unilaterally made enabling
changes in the RP Act. Now we simply
have to keep improvising.”
Chances are that the Modi govern-
ment will prevail over the EC’s reserva-
tions on proxy voting. Whether that will
be good for democracy or not, is a differ-
ent matter altogether.
Make it
Easy Policy
WhileNRIsinthisregionaredelightedovertheproxyvote,
theynextwantrepresentationinbothHousesofparliament
By Bikram Vohra in Dubai
Lead/ Proxy Voting
Lead/ Gulf Indians
T
18 August 21, 2017
Twitter

percent of Indians in the Gulf are lab-
our and travel home once in 24 months
on an average, made the concession
almost insulting.
On August 3, the right to vote by
proxy was granted by parliament to 11
million NRIs eligible to vote. There is a
slice of irony in this. According to the
constitution, there is only one category
of Indian citizen. So, really only an ano-
maly that has survived 70 years is being
corrected. Well-known businessman and
NRI spearhead Ram Buxani told India
Legal: “This should have been granted
long ago. If people in jail have the right
to franchise, why not NRIs? I am glad it
has been given now but the logical
sequence should follow by way of repre-
sentation of NRIs in both Houses. After
all we brought home over $235 billion
in remittances in the past three years.”
HE cabinet’s decision to
allow “proxy” voting for
NRIs in future elections
has created very little exc-
itement among those living
in the UK. While they app-
reciate that they are now being given the
opportunity to participate in the demo-
cratic process back home, they are not
confident of the implementation, partic-
ularly the fact that it is to be done by a
“proxy” which is open to abuse.
“Although I welcome the decision
and it is a step in the right direction as
it allows Indians living abroad to exer-
cise their franchise, I am concerned that
proxy voting does not give confidence
that the vote will be cast as it was inten-
ded. Maybe a postal vote or voting at the
consulate could give voters some assur-
ance that their vote has actually been
cast properly,” said Jasbir Parmar,
BR Shetty, owner of the NMC
Healthcare, expressed his delight over
the government’s move and said that
with Indians abroad creating a vote
bank, there would be an infusion of
investment in India as state govern-
ments make greater efforts to woo for-
eign-based Indians. Shetty is currently
building a major medical facility in
Amravati and is also the chairman of
700 units of the UAE Exchange.
A
s Indians now do not have to fly
back to cast a vote, even the
hardworking labourer finally
has a say in his nation’s destiny. Biswajit
and Farukh who work as drivers in the
construction industry told India Legal
during their lunch break that they
would wish to vote in 2019.
But they expressed concern that
unless they were tutored on how to
obtain the form, fill, sign and post it to
the right address, most of their kin
would lose out. “They must not make
the procedures difficult,” said Biswajit.
“We do not have the time to stand in
lines and get forms and go through all
that proof jhamela (hassle).”
Nirmal Anand, a well-known movie
distributor in the region who has busi-
ness interests in India, said he believes
that all people of Indian origin who pay
taxes should be allowed a vote. “It will
create a more close-knit global commu-
nity,” he stressed.
Generally received with delight, the
voting right process is also of concern
to many. They worry that the postal
option may go awry and transparency
could be an issue. But at least things are
looking up.
NRIshereareconcernedabout
howtheproxyvotesystemwill
beimplementedandwhetherit
willbeopentoabuse
By Sajeda Momin
in London
Lead/ British Indians
T
Excited?
Not
Really
CHEERING TEAM INDIA:
Indian fans in Derby at the
recently held Women’s Cricket
World Cup
UNI

Lead/ British Indians
Director, National Asian Business Asso-
ciation. The fear is that the family mem-
ber who has been given the proxy right
will vote according to his/her political
preference rather than the voter’s.
Though the UK has one of the oldest
and most politically influential Indian
diasporas in the world—now into the
third and fourth generation with a
record number of 12 Indian-origin
Members elected to the UK parliament
in 2017—the majority hold a British
nationality and therefore, are not eligi-
ble to vote in India.
According to the last census of 2011,
the UK recorded 1.4 million people of
Indian origin in a total population of
about 63 million. Of these, as of 2015,
there are only around 3 lakh who are
still Indian nationals and can be consi-
dered NRIs.
Had India allowed dual nationality,
then the numbers may have been differ-
ent. Most migrants to the UK give up
their Indian nationality and become
British nationals as soon as they can to
avail the benefits of living and working
in Britain and move around the world
with ease. However, some take up the
Overseas Citizenship of India (OCI)
certificate so they can avoid visa hassles
for their trips to India.
While the OCI gives people the right
to come and go from India, it doesn’t
allow them political or voting rights.
This is a bugbear for a few, particularly
those who are supporters of the curr-
ent Indian government, who would like
to influence politics in their erstwhile
homeland.
“I think a good majority of Indian
diaspora here have an OCI and thus,
should have an entitlement to vote and
decide who should lead the country,”
said Dr Rajeev Gupta, Chairman of
International Business Federation.
T
he demonetisation experiment
by the BJP government in Nov-
ember last year or “currency
change” as it is called here, has left
many of the Indian diaspora with a bad
taste in the mouth. Until then, most
British nationals of Indian origin con-
sidered themselves NRIs. But during
demonetisation, the Indian government
classified only those holding Indian
passports as NRIs.
“Demonetisation has left many OCI
holders totally frustrated, particularly
many elderly pensioners living abroad
who are now stuck with worthless wads
of `500 or `1,000 notes, none of it black
money, which they could not convert or
hand over to a bank. They gave the facil-
ity to Indian nationals but not OCIs,
making them feel discriminated
against,” explained Buddhdev Pandya,
MBE (Member of the British Empire)
and publisher of Gujarat Times UK.
The majority of young, Indian-origin
Britons are not in the least interested in
what is happening in Indian politics.
They consider themselves British.
“Moreover, they don’t feel they have the
right to interfere in the running of a
country where they don’t live or pay
taxes, and hence, do not want the right
to vote in India” explained Pandya.
ThoughtheUKhasoneoftheold-
estandmostpoliticallyinfluential
Indiandiasporasintheworld,the
majorityholdaBritishnationality
and arenoteligibletovoteinIndia.
A SLICE OF INDIA
((Right) Diwali
celebrations in
Leicester in 2015;
Baisakhi festivities in
Southhall, London
20 August 21, 2017

Jammu & Kashmir Chief Minister
Mehbooba Mufti has met senior oppo-
sition leaders of the state against the rep-
eal ing of Article 35A. The meeting was
held a day after she met Farooq Abdullah,
the National Conference president, on
the matter. Article 35A gives the power to
the state assembly to define the perma-
nent residents of the state. The meeting
comes in the backdrop of a pending
Supreme Court judgment on the article
due next month. The petition for repeal
was filed by Delhi-based NGO, “We
the Citizens”.
Attorney general KK Venugopal had
told the Chief Justice JS Khehar-headed
bench that given the “sensitive” nature of
the issue, the centre wanted a “larger
debate” on it. This triggered a strong
statement by former CM Omar Abdullah
who said repealing it would have serious
consequences and “if there is a debate on
(the legality) of the Article, you will have
to debate the accession itself”.
Meanwhile, the Supreme Court is
also hearing a petition filed by lawyer Anil
Kumar Jha on whether Article 370, which
grants special status to J&K, has lapsed.
Briefs
—Compiled by Lilly Paul
The National Green Tribunal has
slapped an interim ban on use
and possession of non-biodegradable
plastic bags less than 50 microns in
thickness in the National Capital
Region. Anyone found flouting the
rule would have to pay `5,000, a
bench headed by NGT chairperson
Justice Swatanter Kumar said.
The tribunal has also directed the
Delhi government to seize the entire
stock of plastic within a week. Earlier,
the NGT had prohibited the use of
disposable plastic in the city, especial-
ly at hotels, restaurants and for public
and private functions from January 1
this year.
`5,000 fine for carrying
plastic in Delhi
Athree-member Medical Council of
India (MCI) committee, headed
by vice-president Dr CV Bhirmanan-
dam, is framing rules aimed to prevent
unqualified doctors from doing stent-
ing procedures and allowing patients
to seek second opinions to decide
whether they need stents. The panel
will submit the draft rules to the
health ministry in 10 days. In the
absence of rules, many cardiologists do
stenting soon after completing DM
cardiology. Trained doctors should also
register themselves as interventional
cardiologists before beginning prac-
tice, Dr Bhirmanandam said. Hospi-
tals will also be advised to form com-
mittees to review emergency cases.
MCI rules on stenting soon
FuroreoverArticle35ArepealinJ&K
Vikas Barala, son of Haryana BJP pres-
ident Subhash Barala, has been
arrested along with his friend for stalking
and trying to kidnap a woman in
Chandigarh. Varnika Kundu, daughter of
top state bureaucrat Virender Singh
Kundu, posted the incident on her Face-
book wall which led to massive public out-
rage. The police had to re-arrest the two
as they had been released hours after they
were first arrested. Barala has admitted
to following Kundu’s car during a three-
hour long police interrogation. Their
chase was recorded on CCTV footage
and the police now have witnesses against
the duo.
Haryana BJP chief’s son held for stalking woman
The government has informed the
Rajya Sabha that it has issued detailed
instructions for the deportation of the
nearly 40,000 Rohingya Muslims living
illegally in the country. Citing Section
3(2)(c) of the Foreigners Act, 1946 which
vests the government with powers to
deport foreign nationals illegally staying
in the country, minister of state for home
Kiren Rijiju in a written reply to a Rajya
Sabha question stated that the job to iden-
tify, detail and deport such squatters has
been delegated to the state governments
and UT administrations. The centre “has
directed the state governments to consti-
tute task forces at district level” for the
purpose, he said, adding that the issue of
illegal immigration is being taken up with
the neighbouring countries.
Govt plans to deport 40,000
Rohingyas

Courts/ Delhi High Court/Rape Case
22 August 21, 2017
AN an accused in a rape
case marry the complainant
and seek the quashing of
the case against him on this
ground? Justice Pratibha
Rani of the Delhi High
Court, in a recent case, found no merit
in the prayer of the accused to do so on
the ground that he had subsequently
married the complainant and submitted
proof of the same.
In Vikash Kumar @ Sonu v The
State, the accused and the complainant,
belonging to different castes, were in
love with each other, and had entered
into a physical relationship. The com-
plainant had consented in the hope that
the accused would marry her. Later on,
the accused married another girl saying
his parents did not approve of the inter-
caste marriage. However, his marriage
resulted in divorce and he sought the
company of the complainant again, and
had sex, promising to marry her.
SECTION 376
When the accused went back on his
promise, she complained to the police,
and the case under Section 376 of IPC
(offence of rape) was registered.
However, following registration of an
FIR against him, and his incarceration,
he obtained interim bail in order to
marry her and get it registered. The
accused pleaded that the complainant
registered the FIR due to misunder-
standing of facts and in a confused state,
thinking he would not marry her,
whereas he was trying to obtain the con-
sent of his parents. He claimed that the
complainant decided to live with him
peacefully, hence there is minimal
chance of her coming forward to sup-
port the prosecution’s case against him.
However, the High Court relied on
the Supreme Court’s decision in Gian
Singh v State of Punjab, wherein it was
held that criminal proceedings cannot
be quashed under Section 482 Code
of Criminal Procedure on the basis of
an amicable settlement where the
nature of the offence is heinous/serious.
It was reasoned that rape is an offence
against society, and therefore, cannot
be condoned as a result of a compromise
between the parties. Justice Pratibha
Rani also doubted the genuineness
of the proof of marriage submitted by
the accused.
While Justice Rani had given her
judgment in Vikash Kumar on August 1,
Compromise, the
Name of the Game
Genderstereotypesaffectjudgmentsinrapecasesaswasevidentintworecentcasesinthe
Courtwhichhaddifferentverdictsgivenbythesamejudge
By Venkatasubramanian
C
Illustration: Anthony Lawrence

in a similar case decided by her on July
21 in X v State NCT of Delhi, she
refused to intervene after the trial court
acquitted the accused on the ground
that the complainant had married him.
The complainant later claimed that she
was misled into making a statement
before the trial court, leading to the
acquittal of the accused.
Justice Rani observed: “In a number
of cases, where both persons, out of
their own will and choice, develop con-
sensual physical relationship, when the
relationship breaks due to some reason,
the women use the law as a weapon for
vengeance and personal vendetta. They
tend to convert such consensual acts as
an incident of rape may be out of anger
and frustration thereby defeating the
very purpose of the provision. This
requires a clear demarcation between
the rape and consensual sex especially in
the case where complaint is that consent
was given on promise to marry.”
Justice Rani had then held that to
prove the factum of alleged sexual
assault, the complainant is the only
star witness and if she preferred not to
prosecute, the trial court was justified
in closing the evidence and acquitting
the accused.
TRIAL AWAITED
While these two judgments may seem
to be inconsistent with each other,
there is a subtle difference between
them. Vikash Kumar refers to a situa-
tion where the accused is yet to face
trial for the offence of rape as alleged.
At this stage, it is not correct for the
appellate court to interfere and quash
the charge against the accused on the
basis of a compromise between him and
the complainant.
Section 376 IPC does not deal with
a compoundable offence and parties
cannot withdraw or come to a compro-
mise even with the permission of the
Court. Most crimes, including rape, are
crimes against the entire society. That is
why the State prosecutes the crime, on
behalf of the complainant and the socie-
ty. If a compromise is valid, then a com-
plainant can come under coercion by
the accused for it.
It has been pointed out that when
plea bargaining was introduced in
India in 2006, crimes against women
were excluded from its application on
two grounds. One, the complainant and
the accused in a sexual assault case are
likely to be unequal due to gender dis-
parities in society and as far as the law
is concerned. Secondly, prosecuting
the guilty in such crimes is important
for the message it will send to society
at large.
The trial court’s acquittal of the
accused in X v State is problematic, and
the State needs to appeal against the
High Court’s refusal to interfere. The
trial court seems to have followed the
stereotype in conviction and sentencing
in rape cases, wherein courts assume
that it is the complainant’s marriage-
ability, her value as a person, and her
shame which are the issues. It is unfor-
tunate that when Justice Rani avoided
resorting to stereotype in Vikash Kumar,
she could not do so in X v State.
However, the Supreme Court has
held in a few cases that consent of a
woman to sexual intercourse with an
accused does not become invalid if he
goes back on his promise to marry her
later, even if she claims that she con-
sented on the promise of marriage.
In both the cases decided by Justice
Rani, facts suggest that the complaint
about rape was registered following
the refusal of the accused to marry the
complainant. The complaint was sought
to be withdrawn once the accused mar-
ried her. Therefore, the courts have to
decide whether the consent of the com-
plainant for intercourse was valid in
terms of Supreme Court’s judgments in
similar cases.
WhileJusticeRanihad
givenherjudgmentin
VikashKumaronAugust1,
inasimilarcasedecided
byheronJuly21inXv
StateNCTofDelhi,she
refusedtointerveneafter
thetrialcourtacquitted
theaccusedontheground
thatthecomplainanthad
marriedhim.
SChasheldinafewcasesthat
consentofawomantosexual
intercoursewithanaccuseddoes
notbecomeinvalidifhegoes
backonhispromisetomarryher.
TO PUNISH OR TO NOT PUNISH?
The Delhi High Court has passed conflicting
judgments in similar cases

Courts/ Kerala High Court/S Sreesanth
SHANTHAKUMARAN
Sreesanth may or may not
play cricket at the highest
level for the country again,
but by revoking his life ban
and paving the way for him
to play again, the Kerala High Court has
dealt a body blow to the Board of
Control for Cricket in India (BCCI).
The Court, which exonerated
Sreesanth of allegations of spot-fixing
and being part of a betting scandal that
rocked the Indian Premier League in
2013, came down heavily on the BCCI
for dragging a cricketer of international
repute to a legal battle without any evi-
dence against him.
The judgment passed by a single
bench of Justice A Ahmed Mustaq said:
“There was no material or evidence
before the disciplinary committee to
conclude that Sreesanth was guilty of
the violation of the anti-corruption code
formulated by the BCCI. The BCCI
ought to have found that there was no
circumstantial evidence to indicate that
Sreesanth had agreed to spot fixing.’’
In 2013, Sreesanth, Ajit Chandila
and Ankit Chavan, all playing for
Rajasthan Royals in the IPL, were
arrested and charged with spot-fixing.
The BCCI then banned them for life and
while a sessions court in Delhi acquitted
Sreesanth, the BCCI refused to lift the
ban. Following this, the speedster
approached the Kerala High Court.
S
Withthebanonthecricketerlifted,willtheBoardallowhimtoplaycompetitivecricket?
By Naveen Nair in Thiruvananthapuram
The Ball is in BCCI’s Court
“It Was Tough
to Pay Bills
on Time”On August 7, the Kerala High Court lifted
the lifetime-ban imposed on cricketer
S SREESANTH by the BCCI in a spot-fixing case
and thereby exonerated him. Sreesanth now hopes
to play matches for Kerala and later, for India. He
told NAVEEN NAIR over the phone that his love for
the game and his young family kept him going and
that he hopes the BCCI will have the good heart not
to go to the Supreme Court
Now that the High court has exonerat-
ed you, how do you feel?
It has been a long wait, but better late
than never. It is God’s grace that I came
out of it in a positive way. A huge thanks
to the Indian judicial system and the
Kerala High Court. I am really relieved
and hope that the BCCI will respect the
judicial decision and give me an oppor-
tunity so that I can get my respect back
by playing matches for Kerala and God
willing, for India too.
How difficult was this legal battle?
It was very tough and I wondered why
judicial decisions take so long. But then,
that is the way the system works. I kept
myself occupied with politics, thanks to
the BJP, and the film world also
embraced me with both hands. Even
financially, it was tough to pay bills on
time. Sometimes, tough times make one
tough. I am glad I went through all this
as it made me what I am. People who
were against me are also now realising
how difficult it is for a person from
Kerala to make a mark in international
cricket and stay there.
At the age of 34, how hopeful are you
24 August 21, 2017

tegrity of the game,’’ said the judgment.
The Court added that the only accu-
sation that could stand was that Sree-
santh was perhaps aware of such moves
on betting but had failed to inform the
Board, and that a four-year-ban was
more than enough. Now all eyes are on
the BCCI, with Sreesanth and his fans
eagerly waiting to see its response to the
High Court verdict. While there is hope
that the ban would be lifted by the Boa-
rd, sources close to it say it is contemp-
lating approaching the Supreme Court.
This would make his return to com-
petitive cricket tougher.
Sreesanth’s lawyer Sivan Madathil
questioned the legality of the BCCI to
place a ban or disciplinary action on
Sreesanth. “Whenever any decision is
taken by a body like the BCCI, there has
to be an appellate authority. Such an
inquiry which has no proper procedure
but done on the whims and fancies of a
few has no legality whatsoever,’’ he said.
The Court while agreeing to most of
the arguments of Sreesanth’s counsel,
said the BCCI should have been more
careful when it realised that there was
hardly any evidence. “The BCCI’s efforts
to weed out corruption and to uphold
the dignity of the game while need to be
emphasized but that should not be in a
way to overzealously reacting to it. It
must be remembered that every discipli-
nary action related to a player of nation-
al repute, the player suffers his repute
and confidence which he built through
hard work. It is the duty of the BCCI to
safeguard such interest of the player
without compromising on purity and in-
now of making a comeback?
Many people ask me how I can make
a comeback at 34. But if Brett Lee can
bowl 140 km/hr at the age of 36, why
can’t I? I am supremely fit and have
been keeping off oil and ghee and
many other things in my diet. Given an
opportunity, I would like to take six
months to prove my mark again or play
two to three matches to get into the
rhythm. One good season at the domes-
tic circuit and I am sure I can get back to
the Indian team. If I am able to make a
comeback, it will be a great message for
youngsters too.
Did the absence of a godfather make
things difficult for you?
There were many people who have
supported me in my career. Even the
auto driver who used to drop me at the
stadium played his part. So I don’t call
myself a self-made cricketer, but it was
definitely not easy for me because I
never had a mentor. There was not a
single cricketer in Kerala whom I could
look up to and who came to me and
guided me. Everyone wanted me to be
aggressive and when I became like
that, people blamed me. If I did well, it
was a good, but if I didn’t, they would
blame it on my aggression. Often, my
performances were underrated and my
other activities were highlighted.
The High Court came down heavily
on the BCCI for not safeguarding
your rights as a player. What do you
have to say?
I am a firm believer that whatever hap-
pened, happened for a reason. God has
been extremely kind—I am still strong
and fighting. There were times when I
thought of running away but somehow, I
stuck to where I was because I still love
the game so much. I can show to people
that however small one’s chances are,
as long as one keeps breathing, one will
keep going. For me, it was important to
stay strong and there were many who
privately supported me, but their hands
were tied and they could not talk against
the BCCI in public. But that mattered to
me a lot and in course of time, I learned
that it is every man unto himself. Your
family and friends will be there but it is
you who has to fight your own battles.
Otherwise the world will subsume you.
So I learned to hang in there. It was
tough but I was able to adapt.
What kept you going through this long
legal battle?
My family. All I needed was to look into
the eyes of my son and daughter and
forget all my troubles. My daughter is
just two, but she talks as if she is more
mature than me. In training sessions, if I
stop running, she pushes me saying
‘Pappa run, Pappa run.’ Tomorrow if they
Google me, the first few pages should
only be about cricket and nothing else. I
hope I can bring that back. Not for any-
one, but for them.
Does this judgment make you repose
your faith in the judiciary?
From Day 1, I had a strong belief that
once the case comes to court, I would
walk a free man. Even when I was being
interrogated by the Delhi police and
even when I had to go through hell
inside Tihar Jail, I never lost my faith in
the judiciary because I knew that I was
innocent and I had no role to play in all
this. I have tremendous gratitude for the
judicial system and especially to some
great lawyers in Delhi and Kerala who
stood by me because they were con-
vinced of my innocence.
Do you expect more legal tangles if
the BCCI goes to the Supreme Court?
I hope the BCCI will have the good heart
to not go to the Supreme Court after all
this. It hasn’t said what it will do. It
seems they are still studying the High
Court judgment. But then, it is the same
judiciary which said I am innocent. So I
do not see a long legal fight ahead. I
hope to start playing soon, God willing.

and Field Championships
in Bhubaneswar just pri-
or to it, went to court too.
The Kerala High Court
ruled that she should be
included in the team, but
by then, the last date for
entry was over and the
International Association
of Athletics Federations
(IAAF) refused to accept
her entry.
Dutee Chand, India’s
ace sprinter, and the only
Indian woman to qualify
for the finals of the 100m
at an Olympic Games—
PT Usha did not have to
qualify—suffers from
hyperandrogenism, a
physical condition in
which there are excessive
levels of androgens (male
sex hormones such as
testosterone) in the
female body. She was ini-
tially denied permission
to take part by the IAAF,
so she went to court. This
was a famous internatio-
nal case in which a posse
of lawyers fought her
case and won.
The IAAF relaxed the strictures and
she was able to take part in the Rio
Olympics. She has also taken part in
the London world athletics meet, but
the relaxation period runs out in three
months, after which she again becomes
ineligible.
Increasingly, the two legal forums—
in sport and general—are often seen
to be in disagreement. Recently, the
Indian sports ministry has suggested
that doping in sport be made a criminal
offence. This will lead to many sporting
26 August 21, 2017
HE issue of laws of the
game versus the law of the
land has been a long stand-
ing debate in sporting cir-
cles. It is acceptable that
when events in the sporting
arena overflow into societal areas, the
law of the land can take effect quickly.
However, as long as incidents stay con-
fined to the playfield, sporting authori-
ties will have the last say.
Recently, certain high-profile issues
of the playfield spilled over to the courts.
S Sreesanth, former India pace bowler,
was jailed on charges of spot-fixing of
matches in the IPL, but when a special
Delhi court acquitted him for lack of
evidence, the BCCI stubbornly refused
to lift the life ban it placed on him. So
Sreesanth went to court again and the
Kerala High Court has directed the
Board to end his life ban. The BCCI
might appeal, but that is another matter.
Athlete PU Chitra, not allowed to
run (1,500m) for India in the London
World Athletics Championships by the
Athletics Federation of India (AFI) des-
pite winning a gold at the Asian Track
Law of the LandSreesanthisnottheonlysportspersonwhohasapproachedthecourts
By Sujit Bhar
NOT FAIR!
Athlete PU Chitra (left)
and ace sprinter, Dutee
Chand, were disallowed at
different times from
competing on important
international platforms
T
Courts/ Sports Law
UNIwikimedia.com

and legal hurdles. There are nearly 300
incidents of litigation pending against
the sports ministry and they range from
non-inclusion in a squad to unfair treat-
ment. In many cases, court stay orders
have resulted in career hurdles
in themselves.
“Such overlaps will keep happening,”
says Kuntal Roy, famous athletics coach.
He coached heptathlete Soma Biswas to
national titles and records and to the
Olympics. “It is necessary to find a mid-
dle ground so that sportspersons have
another appellate body to go to before
moving court,” he said.
This becomes necessary. The Kerala
High Court’s Justice PB Suresh Kumar,
in delivering his interim order told the
AFI that the court had to interfere
because the Federation wasn’t going by
its own rules. In delivering the
Sreesanth judgment, Justice A
Muhamed Mustaque of the same court
observed: “The disciplinary committee
(of the BCCI) ought to have been careful
in analysing evidence especially when
the deal itself had failed to work out.”
Justice Mukul Mudgal whose book
Law and Sports in India is famous, has
observed that “there is a need for regula-
tion. Regulation is a must, not to curb
but to encourage playing”.
However, regulation cannot be the
only objective in the highly competitive
world of sports today. “There can be no
general application of any law in the
sporting arena,” says Kuntal Roy. “You
have to consider each situation on its
merit. Each one could be unique. More-
over, in sports, international laws have
to be taken into account. It is essential
that national laws of a sport conform to
its international counterpart. If not,
then there would be consequences that
would be detrimental for the athlete.”
During the 2004 Federation Cup, ace
football goalkeeper Subrata Paul of
Mohun Bagan punched at a goal-bound
ball, but his punch landed on Dempo’s
Brazilian forward Cristiano Júnior
instead. The ground lacking basic med-
ical facilities, Júnior died. “This would
have been manslaughter, at least as per
the laws of the land,” said Roy. “At least,
Paul would have been so terribly
harassed, his career would have come to
an end. That did not happen because it
stayed within the playfield. We need the
sanctity of the playfield maintained. Any
appeal should be to an appellate body
within its sphere of influence.”
There is yet another case of foreign
footballers who come to play in Indian
clubs. Players from countries such as
Nigeria, Kenya and Brazil arrive every
year and some of them—Chima Okorie,
Emeka Ezeugo, Barretto and others
have earned fame and money. There are
many more, though, who are mid-level
players. These are the players who are
treated poorly by organisers and clubs
and have no redress system to refer their
cases to when they are not paid.
An official within the IAF, who refus-
ed to be named, because he was not au-
thorised to make comments, pointed out
that there was a forum available inter-
nationally, the Court of Arbitration for
Sport, based in Lausanne. “But it is pro-
hibitively expensive for a poor Indian
athlete to approach. The very idea of
paying lakhs of rupees from his or her
own pocket, and then being present in
Switzerland for the hearings sounds so
far-fetched for an Indian athlete, he or
she never even attempts it,” he said.
That leaves the athlete with the
forum of the court. More than the rea-
sonable amount of money involved in
filing a case in Indian courts, the biggest
advantage is that they are approachable.
Also, the faith of the common man in
the judiciary is still immense. Possibly
that has resulted in the multiple litiga-
tions that the sports ministry has been
embroiled in.
Moving towards a national sports tri-
bunal, within India’s legal framework,
will be the ideal solution, feels Roy.
Therearenearly300incidents
oflitigationpendingagainstthe
sportsministryandtheyrange
fromnon-inclusioninasquad
tounfairtreatment.
A CHILLING BLOW
Goalkeeper Subrata Paul (below) punched a
goal-bound ball, killing Cristiano Júnior
Goal.com

Probe/ Principal’s Post
school and asked to join work at 9 am
on June 29.
A double MA in History and English
with 21 years of experience in teaching,
Arora had until April 2017 been vice-
principal at DPS, Siddharth Vihar. Prior
to that, she was cultural coordinator at
DPS, Indirapuram, for seven years. She
was naturally happy to have got a job of
her liking with close to a six-figure pay
packet. She wrote back immediately,
accepting the offer, and proceeded on a
well-earned European holiday, safe in
the assumption that a new life awaited
her once she returned.
But to her utter shock and dismay,
on June 21, when Arora reached Paris,
she found an email from Gupta, with-
drawing the job offer, citing “unforeseen
reasons”. A distraught Arora called him
School for
Scandal?ArowhaseruptedovertheappointmentofSangitaMaliwal,
motherofSwatiMaliwal,headoftheDelhiCommissionfor
Women,forthisjob.Waspoliticalpressureusedtosecureit?
By Sucheta Dasgupta
prestigious school in the
National Capital Region is
finding itself in the midst of
a controversy. On June 13,
Meeta Arora, a contender for
the post of principal at Adharsheela
Global School, Sector 3, Vasundhara,
Ghaziabad, was emailed an offer letter
by Govardhan Gupta, the director of the
ARAW DEAL
Adharsheela Global School in
Ghaziabad had sent an offer letter
to Meeta Arora (inset) via email,
but reneged on the offer
28 August 21, 2017

up from Paris, seeking an explanation.
Gupta sheepishly said that the incum-
bent principal, Ritu Rajneesh, had com-
plained to the school management that
she had not been served a notice and
negotiations had resulted in an exten-
sion of her tenure by one year.
Arora had no choice but to accept it
for the time being. By the time she
returned to India, Gupta had turned
distant and would not take her calls.
However, there was one final call in
which he made two contradictory asser-
tions. First, he said the school had no
choice but to comply with Rajneesh’s
demands as she had threatened legal
action. But when Arora persisted, he
told her to move court herself if she was
unwilling to accept the decision.
A week ago, Arora saw the school
website and was stunned to find that the
new principal was Sangita Maliwal,
mother of Swati Maliwal, head of the
Delhi Commission for Women. Sangita
Maliwal had been present at the venue
of the job interview at Arwachin Global
School, Dilshad Garden, and had, in
fact, been in casual conversation with
Arora during that time. She told her
that she held a master’s degree in
Chemistry and had taught in Palwal and
at Ahlcon International School in Delhi.
There had been just three interviewees.
A
rora told India Legal: “I had res-
ponded to an ad that came out in
Hindustan Times. The name of
the school had not been mentioned in
the ad. Looking back, I realise there had
been a few things amiss. I was told by
Gupta during the interview not to con-
tact the serving principal, Rajneesh, as
she had not been informed that recruit-
ment was going on for her post. Also,
the email I received had no stamp or
signature, but I was led to believe that
email transactions do not require these
stipulations and so did not react to that.”
In fact, Gupta had been effusive in
his praise of her professional accom-
plishments from the time he first con-
tacted her. He had also called her up
within 24 hours of the interview, ann-
ouncing that she had got the job. An
unsuspecting Arora, therefore, skipped
her interview for the same position at
GD Goenka School, Sonepat, which was
scheduled the day after she accepted
this job offer. She now rues the fact that
she let go of that chance. The question-
able offer letter from Adharsheela was
from the email ID of Gupta, whereas the
school chairperson is Meeta Singh.
When India Legal contacted Gupta, he
said, “I have left my job. I am no longer
with them. Sorry, I cannot comment.”
Subsequent calls to his mobile went
unanswered.
India Legal also called the media
representative of Swati Maliwal. How-
ever, despite promising a response after
repeated call and smses, there was none
till the time of going to the press.
Will justice be served to Arora?
THE OFFER LETTER
The emailed correspondence doesn’t carry any signature or
stamp from the school authorities
WhenMeetaAroravisitedthe
schoolwebsite,shewasstunned
toseethatthenewprincipalwas
SangitaMaliwal(right),motherof
SwatiMaliwal(left),headofthe
DelhiCommissionforWomen.
Maliwalhadappearedforthejob
interviewalongwithArora,and
hadcasuallyconversedwithher.

Investigation/ GSTN/ Data Leaks
N July 1, India became a
“one nation, one tax”
republic with the rollout of
the Goods and Services Tax
(GST) regime. While citi-
zens and businesses are
still coming to terms with this “revolu-
tionary” change, dissenting voices are
already raising questions about the
Goods and Services Tax Network
(GSTN)—the cyber hub firm that runs
the GST. And the concern stems from
the security aspect of the enormous vol-
ume of tax data that is processed on a
daily basis by a public-private-partner-
ship company in which the majority
stake is not with the government.
It has been alleged that the informa-
tion technology system which allows
taxpayers to register and file tax returns
online, has links with foreign companies
that puts crucial data of all taxpayers of
the country at risk. It has been further
alleged that foreign stakeholders are in a
position to control GST funds through
private banks which hold majority
shares in GSTN, the multi-ownership
entity that operates the new tax collec-
tion system.
SHAREHOLDING PATTERN
To understand what is at stake, one
needs to understand the shareholding
pattern of GSTN. It was set up as a
public-private partnership in 2013 to
primarily provide IT infrastructure and
services to central and state govern-
ments, tax payers and other stakehold-
ers for implementation of GST. In other
words, it handles the database of almost
every significant transaction being car-
ried out in the economy. The stakehold-
ers in GSTN are central and state gov-
ernments who hold 49 percent shares
and the following private entities—
HDFC, HDFC Bank, ICICI, NSE
Strategic Investments Co and LIC
Housing Finance Limited—who togeth-
er hold 51 percent of the shareholding.
(see infographic).
A closer look into the shareholding
patterns of these private players in
GSTN reveals how foreign stakeholders
are indirectly linked to GST funds.
Some of these entities are controlled to
the extent of 75 percent by foreign insti-
tutional investors (FIIs). For example, in
HDFC foreign holding or investment is
77.27 percent as per the company’s bal-
ance sheet last fiscal. Those critical of
the very concept of starting a PPP tax
O
Grave
Security
ThreatLaunchedwithmuchfanfare,thenewtax
regimeisoperatedbyanentityinwhich
privateplayersownmajoritystake.This,say
critics,couldcompromisedatasecurity
anddisrupttheeconomy
By Usha Rani Das
Ithasbeenallegedthatthe
system,whichallowstaxpayers
toregisterandfiletaxreturns
online,haslinkswith
foreigncompanies.
30 August 21, 2017

as an entity owned 100% by the govern-
ment. The fact that 51% of its equity is
held by non-government entities raises
concerns of security of information and
conflict of interest. Many Directors on
the Board of GSTN simultaneously
function as Directors of other compa-
nies (subsidiaries of foreign companies)
as evident from the attached documents.
The government seems to have allowed
the nomination of such persons as
Directors of GSTN without any applica-
tion of mind.”
Sarma elaborated further to India
Legal about the inherent dangers: “Such
high foreign stakes are alarming as it is
possible that some of the non-govern-
ment companies having a significant
shareholding in GSTN will soon become
subject to control by foreign companies
because of the liberal policy being fol-
lowed in allowing foreign investment to
flow into different sectors.”
collection network will argue that these
FIIs and other foreign players can man-
age access to data within the network.
EAS Sarma, former expenditure sec-
retary, has been pointing out the dan-
gers of the foreign hand in GSTN to the
government. In fact, he wrote two letters
articulating these concerns to Union
finance minister Arun Jaitley—one on
June 30 and the other on July 1, the day
GST was rolled out. In his June 30
letter, made available to India Legal,
he noted:
“Since GSTN is going to be the IT
backbone of GST and will be privy to
almost all vital information revolving
around GST, it would have been prudent
for the government to have structured it
Also, those critical of GSTN point
out that there is a potential conflict of
interest here as well—all these banks
and financial institutions which are
stakeholders in GSTN are themselves
taxpayers under the GST regime.
Since, GSTN would be a repository of
sensitive data on business entities across
the country, the FII stakes in the banks
might even give them access to vital
tax and trade information from the
GSTN system.
RISK OF DATA MISUSE
Sarma explains: “If foreign companies
take a substantial share of equity in
GSTN through the domestic private
companies, there can be issues of
national interest. They can use the tax
data to assess the activities of their rival
companies and thwart competition.
Foreign companies may misuse the data
on identity of the dealers and even
MOVING TO GST
Prime Minister Narendra Modi addressing a
special session of parliament during the
launch of GST
FinanceMinister
ArunJaitleyendorsed
thesuggestions
oftheEmpoweredGroup
ofthecabinetthat
recommendeda
non-government
structureofthe
GSTNSPV.
BJPMPSubramanian
Swamyisopposedto
GSTNandisoftheopinion
thatthegovernmentand
notprivateentitiesshould
holdmajoritysharesso
thatthedecision-making
isinthehandsofthe
government.
UNI

their Aadhaar card numbers and the
data linked to it. They cannot be bound
by any code of conduct. Also, in case a
private company leaks the data, even
if deterrent penalty were to be impo-sed,
would it ever compensate the loss of pri-
vacy? If there are foreign comp-anies
also involved, can the govern-ment do
anything once data is stolen and
misused?”
Last fortnight an expert team from
the Centre for Cyber Security, IIT
Kanpur, reportedly briefed the
Parliamentary Committee on
Finance on the threat that the
nation faces from cyber-
crime. Data theft was a prime
area of concern that the panel
felt needs to be addressed with
urgency. The view of the team was
that currently, security systems in the
country are ineffective. The chairman of
the Committee, Veerappa Moily, con-
firmed to India Legal that the briefing
had taken place. “Cyber security was dis-
cussed in detail but it was all confiden-
tial and I cannot share it with you,”
he said.
Other than data theft, there are other
concerns as well, say experts. Now that
the tax system nationwide is run by
GSTN, any disruption can upset the rev-
enue data systems and indirectly, the
larger economy. It is pointed out that
considering India’s weak defence mech-
Santosh Kumar Gangwar, minister of
state for finance, responded to issues
raised by BJP MP Subramanian Swamy
relating to GSTN in the Rajya Sabha dur-
ing zero hour on April 5, 2017.
To quote from the written reply: “…To
enable efficient and reliable provision of
services in a demanding environment, the
Empowered Group (of the cabinet) rec-
ommended a non-government structure
for the GSTN SPV after considering key
parameters such as independence of
management, strategic control of govern-
ment, flexibility in organisational structure,
agility in decision making and ability to
hire and retain competent human
resources. The Empowered Group (EG)
and the Union Finance minister endorsed
the recommendation of EG… It may be
seen that it was the conscious decision of
the competent authority to go for a private
limited company to achieve the identified
objectives.
Also, CAG has audited GSTN for FY
2013-14, 2014-15 and 2015-16. This is
the period for which Cabinet approved
provision of the grant-in-aid of `315
crores towards expenditure for initial set-
ting up and finance of the SPV. Further,
the Guarantee Agreement between
Department of Revenue and GSTN for
extending government of India’s guaran-
tee, for borrowing loans up to the limit of
`800 crore (the term loan of `550 crore
and the working capital credit of `250
crore) by GSTN, explicitly states that
GSTN shall allow Office of CAG to audit
its accounts.
As regards the issue of security clear-
ance, it is stated that ministry of home
affairs has conveyed security clearance to
GSTN with respect to core national secu-
rity parameters i.e. unity, integrity and
sovereignty of the country. Necessary
steps are also being taken to ensure
robust cyber security of GSTN in consul-
Ministry’sDefence
“Itwouldhavebeenprudentfor
thegovernmenttohave
structuredGSTNasanentity
owned100%bythegovernment.
Withprivateplayers,thereare
concernsofinformationsecurity
andconflictofinterest.”
—EASSarma,formerexpenditure
secretaryinalettertoFinance
MinisterArunJaitley
Investigation/ GSTN/ Data Leaks
32 August 21, 2017

GSTN work is of strategic
importance to the country and
the firm would be a repository
of a lot of sensitive data on
business entities across the
country. Hence, the govern-
ment may take immediate
steps to ensure non-govern-
mental financial institutions
shareholding be limited to
public sector banks or public
sector financial institutions.”
Curiously, before the for-
mation of GSTN, a select
committee of parliament,
headed by BJP MP
Bhupender Yadav, was formed
to look into its structure and give its rec-
ommendations which will have to be
implemented mandatorily.
In its report, the select committee
noted that the non-government share-
holding in GSTN is dominated by pri-
vate banks, which is not desirable. It
also recommended that the non-govern-
ment institutional shareholding be
limited to public sector banks and finan-
cial institutions.
Unfortunately, GST Bill was passed
without taking its recommendations
into consideration. Swamy claims that
the recommendation (of the select com-
mittee) has been completely ignored and
has not been part of any debate either in
the Lok Sabha or Rajya Sabha.
The Central Board of Excise and
Customs had also raised concerns
regarding the ownership and security of
anism against cyber-crimes, the compa-
ny is vulnerable to hacking and disrup-
tion. Even though the chairman of
GSTN, Navin Kumar, claims that data is
completely secured and GSTN is a
tough nut to crack, private entities who
are part of GSTN are not so resilient to
such attacks, say critics. They cite a
recent incident when the NSE collapsed
due to a cyber-attack, causing major
data breach.
NO PRIVATE PLAYERS
The shareholding pattern of GSTN has
engaged both houses of parliament. One
of those opposed to GSTN is BJP MP
Subramanian Swamy. His view is that
the government and not private
entities should hold majority shares so
that decision-making is in the hands of
the government. A majority private
shareholding of such a company means
the critical information of about 6 mil-
lion taxpayers is in the hands of private
players. He has even called it a
“shady operation”.
In a letter to Prime Minister
Narendra Modi, he stated it was not
advisable to bring private firms at all in
the administration of tax-related mat-
ters. During a discussion on the GST
Bill in the Rajya Sabha on April 5, 2017,
Swamy explained: “Public sector banks
have more than 70 percent of the total
credit lending in the country. Secondly,
crucial taxpayers’ database in 2015. But
it later decided not to question the deci-
sion of the cabinet. According to a
Business Standard report, the Depart-
ment of Expenditure under the ministry
of finance, had red-flagged the large
expenditure by the private company
(besides a proposed loan of `515 crore).
The administrative cost in running the
GSTN with around 45 employees, all of
whom have been hired at market rates
and given additional perks like house
rent, car and other allowances besides
productivity linked incentives, is sub-
stantial. The expenditure department
has expressed its concerns over the
financial outgo.
tation/cooperation with National Cyber
Security Coordinator, Intelligence Bureau
and CERT-In. GSTN has also partnered
with Standardisation Tasting and Quality
Certification (STQC), Department of
electronics and Information Technology
for providing security audit and compli-
ance. For the issue regarding questioning
under RTI, it is stated that as GSTN falls
within the purview of ‘Public Authority’
under section 2(h)(d)(ii) of the RTI Act,
2005 with Mohammad Shadaab, AVP
(Legal) as designated CPIO and Dr
Abhishek Gupta, executive vice president
(Support) as designated First Appellate
Authority.”
StructureofGSTN
Shareholders
Shares in GSTN
(in percentage)
Centre 24.5
States (collectively) 24.5
HDFC 10
HDFC Bank 10
ICICI 10
LIC Housing Finance Limited 11
NSE Strategic Investments Co 10
Directors
Director of Indian
company
Parent company
Headquarters of
parent company
Anand Sinha
KKR ARC India
Private Limited
Kohlberg Kravis
Roberts (KKR)
New York, USA
Bhavesh C Zaveri
Swift India Domestic
Services Pvt Ltd
Society for Worldwide
Interbank Financial
Telecommunication
(SWIFT)
La Hulpe, Belgium
SomeGSTNdirectorsareheadsofsubsidiariesofforeigncos
Source: GSTN.org

Special Story/ Dress Code
34 August 21, 2017
rial restrictions. One may ask whether
there is any law that allows people to
dress in court the way they want? Would
any restriction offend constitutional
rights?
In pre-historic times, people roamed
around sans clothes and even today, cer-
tain tribes in the interiors of Andaman
and Nicobar and Africa do the same.
The dawn of civilisation also brought in
the advent of clothes and people dressed
according to climatic conditions. Later
on, dress codes became a way of life.
During medieval times, different dress
codes were ordained for different reli-
gious, social and royal functions.
Modern society continues the tradition
of dress codes, be it for school children,
military, police, priests, judges or doc-
tors. These codes identity the profession
one is in.
The British are considered to be a
conservative society and sticklers for
tradition. We Indians, by and large, are
guided by British society in the matter
of dress codes. It is interesting to know
that even in American society, which is
Twoobservationsregardingapropersartorialstyleduring
courtproceedingsbringtofocustheneedtoadheretocertain
traditionsanddonotinfringeonconstitutionalrights
By Justice K Sreedhar Rao
APT DRESSING
Lawyers wearing the
customary black robes,
black trousers
and white shirts
recent judgment of the
Himachal Pradesh High
Court regulating dress
codes for litigants and gov-
ernment officials during
court proceedings and an
objection raised by Chief Justice of
Bombay High Court Manjula Chellur
earlier against media persons dressed in
jeans and T-shirt have started a curious
debate regarding the legitimacy of sarto-
A
Clothes Maketh
the Man
Anil Shakya

more or less rebellious to the traditions
of the British, there are dress codes for
different occasions like wedding cere-
monies, religious, social, official and
business functions. The appropriate
semi-formal and semi-casual dress for
men is the tuxedo with shoes, formal
shirt, bow or tie. For women, skirts up
to the knee are appropriate. For official
functions, and in the corporate world,
revealing clothes are prohibited. For
social functions and cocktail parties
also, casual clothes such as chinos and
denims are avoided. Etiquette requires
that one should not be under-dressed so
as not to offend dinner companions and
also not be over-dressed. Invitees can
ask the host for advice on what dress
would be appropriate for dinner parties.
For business dinners or a company
party, revealing outfits can carry the risk
of affecting job promotions. For a job
interview too, the HR department of the
company can be consulted about the
appropriate dress. In all cases, the
clothes should be clean, ironed and not
skimpy or tight. To wear jeans would be
a mistake. For occasions like baptism,
religious occasions and funerals, an
unwritten dress code is followed.
The culture of wearing denim started
with mine workers and cowboys in the
US because they were suited for rough
work, would last long and did not need
washing and ironing. In course of time,
it came to be accepted as a permitted
dress for other sections of society too.
The hippy culture gathered momentum
in the US as a protest against the long-
drawn-out Vietnam War. The philoso-
phy of a hippy is to be non-conformist,
both in philosophy and lifestyle. Wild
and uncombed hair, beard and jeans
and rebellion against conformist society
are signs of this culture.
In India, denims are seen as fashion-
able and a sign of modernity among the
younger generation, who are also
inspired by film heroes who wear them.
India has a rich heritage of textiles. The
advice to dress neatly and modestly
should not be taken amiss as an inva-
sion of privacy. Clothes have a distinct
influence on the ethos and culture of a
place. And in the UK and the US, there
is an unwritten tradition of dress code
for every occasion.
Hence, the insistence on an appro-
priate dress at the work place, official
functions and court proceedings should
not be mistaken as offending the sensi-
bilities of people. The decorum and dig-
nity of the occasion may warrant a for-
mal dress code and hairstyle. Clothes
and the physical appearance of a person
are an index of his mental make-up. The
younger generation should realise this.
The Himachal and Bombay High
Courts do not appear to be crossing the
bounds of law in directing a proper
dress code for the litigants, the public
and officials appearing in daily court
proceedings.
—The writer is former acting
chief justice of the Karnataka and
Gauhati High Court
UNIFORM IDENTITY
Police personnel in khakis and doctors in
white coats are easily distinguished
dailyrounds.org
UNI

India Legal 21 August 2017

Recommended

Recommended

More Related Content

What's hot

What's hot (19)

Similar to India Legal 21 August 2017

Similar to India Legal 21 August 2017 (12)

More from ENC

More from ENC (20)

Recently uploaded

Recently uploaded (20)

India Legal 21 August 2017